HomeMy WebLinkAbout2016-1384.Broer et al.17-02-16 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2016-1384, 2016-1385, 2016-1386, 2016-1387
UNION#2016-0108-0017, 2016-0108-0018, 2016-0108-0019, 2016-0108-0020
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Broer et al) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Brian P. Sheehan Vice-Chair
FOR THE UNION Dan Sidsworth
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Greg Gledhill
Treasury Board Secretariat
Centre for Employee Relations
Employee Relations Advisor
HEARING February 9, 2017
- 2 -
Decision
[1] The Employer and the Union at the Elgin Middlesex Detention Centre agreed to
participate in the Expedited Mediation/Arbitration process in accordance with the
negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say,
that the parties have agreed to a True Mediation/Arbitration process wherein each party
provides the Vice-Chair with their submissions setting out the facts and the authorities
they respectively will rely upon. This decision is issued in accordance with the Protocol
and with Article 22.16 of the collective agreement; and is without prejudice or precedent.
[2] This award concerns four grievances filed by correctional officers at the Elgin
Middlesex Detention Centre asserting that the Employer has failed to implement a
Memorandum of Settlement. The remedy requested is for the terms of the
Memorandum of Settlement to be implemented and a claim for damages to be awarded.
[3] The Employer is of the view that allowing the grievors to work overtime would be
inconsistent with the medical restrictions that are applicable respectively to each of the
grievors. The employees are therefore identified on the HPRO software utilized by the
Employer as being “not qualified” for overtime opportunities. The grievors are of the
view that this identification constitutes a violation of their privacy and an affront to their
dignity. Accordingly, the grievors filed individual grievances in 2014 seeking that the
Employer stop the practice of identifying the grievors as “not qualified” on the HPRO.
[4] On February 25, 2015, the parties entered into an Interim Minutes of Settlement
agreement, which provided as follows with respect to these grievances:
WHEREAS the grievors have raised concerns about terms used in HPRO
which they feel identify and denigrate their need for accommodation,
- 3 -
specifically that the record describes them as “not qualified” for overtime
shifts when they are unable to work certain overtime shifts due to their
medical restrictions;
AND WHEREAS the parties wish to resolve these grievances fully and
finally, on a without precedent and without prejudice basis.
NOW THEREFORE the parties agree as follows:
1. The employer will continue to discuss revised language to replace
the term “not qualified.” The grievors’ preferred terms are “deferred”
or “ineligible”.
2. The parties will meet no later than 90 days after ratification of the
new collective agreement, currently being bargained, to discuss the
change of terms.
3. The grievances will not be withdrawn until the matter is resolved.
[5] On April 19, 2016, the parties finalized a Memorandum of Settlement which
provided as follows:
1. The Employer agrees to implement the Minutes of Settlement dated
February 25, 2015; within (30) thirty days of signing.
2. The employer will revise the language displayed in the Hiring
Protocol to replace the term “not qualified”, and replace it with the
terms “deferred or ineligible”.
3. The Grievor and the Union agree that the above-noted grievance is
settled and is hereby withdrawn.
4. Vice Chair B. Sheehan shall remain seized.
[6] The Employer has yet to comply with paragraph 2 of the April 19, 2016
Memorandum of Settlement. The Employer indicated that it has incurred certain
unexpected difficulties in effectuating the mandated alteration to how the grievors are
identified, with respect to overtime opportunities, in the HPRO. Even accepting that the
- 4 -
Employer may have encountered certain obstacles in implementing the mandated
change, the fact that it has been almost nine months since the agreed-to date by which
the change had to be implemented, at a minimum, opens the door to question the
nature of the Employer’s commitment to live up to the agreement it made with the Union
and the grievors.
[7] Further to the above, it is a fundamental truism of labour relations that it is
imperative that parties abide by, and comply with, voluntary agreements reached
regarding issues in dispute. Specifically, the effective functioning of the grievance
arbitration process, which these parties employ to resolve a myriad of grievances, is
predicated on the principle that both parties will adhere to, and comply with, the terms of
an agreed-to settlement.
[8] Against the above background, the Employer is hereby ordered to fully
implement the change outlined in paragraph 2 of the April 19, 2016 Memorandum of
Settlement by no later than 30 days from the date of this Award. A failure of the
Employer to implement the mandated change by the required date will leave little
alternative than to follow up with the issuance of an award of damages to the grievors.
Dated at Toronto, Ontario this 16th day of February 2017.
Brian P. Sheehan, Vice Chair