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HomeMy WebLinkAbout1994-0627BEST95_03_14 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS - . e DUNDAS STREfT WEST, ~U1TE 2100, TORONTO ON MSG 1Z' TELEPHONE/TELEPHONE (416) 326-1388 A. E ,~t~'~IIREAU 2100, TORONTO (ON) M5G 1Z8 FACSfMfLE/TELECOPfE (416) 326-1396 '\' OOTD c...o-r'Gi MAR 1 6 19~5 GSB# 627/94 V Cx"1-V? t;; '.. OPSEU# 94A915 PUbL\\"" t>t::HViCE APPEAL BOARDS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Best) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE S. Kaufman Vice-Chairperson E. Seymour Member D. Clark Member FOR THE M. Bevan GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE J. Benedict EMPLOYER Manager, Staff Relations & Compensation Ministry of the Solicitor General & Correctional services HEARING December 1, 1994 ~----- 1 AWARD The grievor, Russell Best, is an unclassified Correc- tional Officer He was initially appointed to the unclassi- fied service as a Correctional Officer at the Walkerton jail on August 28, 1990 and has been employed at the Walkerton Jail under a continuous series of renewals of his initial appointment, the most recent renewal having been effective April 1, 1994, to expire September 30, 1994. On May 2, 1994 he signed an Appointment to Unclassified Service (Ex 3 ) which indicates that it is both a renewal of a previous appointment and a change from Walkerton Jail to Guelph Cor- #" rectional Centre. The effective date of that Appointment is May 2, 1994 and the expiry date is November 1, 1994 During his Appointments at Walkerton Jail the grievor was assigned certain shifts one week in advance and was as- signed the balance of his shifts on an "on-call" basis. He worked 18 to 20 hours per week on average. After May 1, 1994, the grievor was assigned no further shifts at Walkerton Jail. He grieves that as a result he was wrongfully dismis- sed under the April 1 to September 30, 1994 renewal of his Appointment to the Classified Service. Evidence was heard from Greg Simmons, Superintendent of the Guelph Correctional Centre, John Sinclair, Superintendent of the Walkerton Jail and from the grievor. Little of the evidence was in dispute The grievor and another unclassified Correctional Offi- cer at Walkerton Jail took a tour of the Guelph Correctional Centre (G.C.C.) . Mr Sinclair received a call from Mr Walk- er, a Staff Training Officer at G.C C , who advised Mr. Sin- clair he was interested in having Mr. Best work for him. Mr Sinclair indicated to Mr Walker that he had no problem with that, as Guelph could provide Mr Best better hours and bet- ter career opportunities. He said "a time was set up" with 2 Mr. Walker for Mr Best lito end at Walkerton and go to Guelph", with "3 weeks' notice" . Before Mr. Best went to work at G C.C. he and Mr. Sinclair saw one another and spoke about his going to Guelph. Mr. Best asked Mr Sinclair whether it was possible to work at both Guelph and Walkerton and Mr. Sinclair told him that to his knowledge it wasn't possible to work at both institu- tions. Mr. Best recalled discussing with Mr Sinclair the full-time emploYment elsewhere of another Walkerton employee, and that this had been permitted. Mr. Sinclair did not advise Mr. Best of his reasons for his belief that Mr. Best could not work at both institutions. He advised this board that his reasons for his belief were that "we" wouldn't know how many hours Mr. Best would be working at each institution, there would be competition be- tween call-ins from each institution, the issue of whether overtime would apply when he worked in excess of 40 hours per week, or when he worked in excess of 12 hours per day. He agreed that it was his decision that resulted in Mr. Best not working at Walkerton after May 1, 1994. He said "you could say his contract was sent to Guelph, that contract went to Guelph, as far as I know". He said he was not aware of any policy which stated that an unclassified c.o. could not work at two institutions at the same time. Mr. Sinclair acknowledged he did not terminate or cancel the grievor's appointment, and said that he did not dismiss the grievor. He agreed that had Mr. Best transferred from G.e.c. to Walkerton Jail, he would not have been able to work at Walkerton Jail unless he had signed a new contract. He acknowledged that he did not have the power to cause Mr. Best to remain at Walkerton Jail if he wanted to work at G.C.C. He acknowledged that he would not have told the grievor he could not work at another emploYment during his Appointment at the Walkerton Jail and that he would not have fired him 3 for doing so He acknowledged that many unclassified staff have 2 different jobs, which helps with their incomes He acknowledged that an unclassified Correctional Officer at Walkerton Jail works full-time at another employment, and that he advises the jail of .his full-time hours and the Jail works around them. Greg Simmons confirmed that he was not aware of the existence of a policy prohibiting unclassified c.o s from working in two institutions at the same time, but stated that in his experience, employees work only one contract at a time. He said that the employer's prime concern is with such "" an employee's availability, and that if an employee worked a few hours per week at another institution, and it didn't af- fect his work or availability at G.C C., he "could go along with it". He was unable to say how the employer would deter- mine and pay overtime. He said that if an employee's hours at another institution affected his availability at G.C.C., although his availability would not result in the termination of his contract, it could jeopardize the renewal of his con- tract with Guelph. He acknowledged that if the grievor ad- vised him that he had an offer to work part-time at Walkerton Jail, he would not terminate his contract, but would see whe- ther he was cancelling shifts at G.C.C., at which point his emploYment at two institutions might become a problem. He said that it was not possible for him to know whether other G.C.C. employes have other work, and that it only becomes a concern when they are not available. Mr. Simmons also advised the board that the grievor's Appointment to Unclassified Service effective May 2 to Novem- ber 1, 1994 (Ex. 3) indicates the "location for cheque dis- tribution" as Guelph and indicates that the employer is to charge his salary to Guelph. He advised that the grievor could not work at Guelph under the April 1 to September 30, 1994 Walkerton Jail Appointment He advised that an Appoint- 4 ment that says G C C on it is required so that the employee's salary can be charged to G C C. 's cost centre. Mr Simmons advised that in preVlOUS times, people occu- pying unclassified positions had no intention of becoming full-time employees, but that currently unclassified posi- tions are considered entry positions, and that there is no rule or policy against unclassified employees having an out- side job. He also advised that from a security viewpoint, it is preferable to have experienced officers at G C C., and that a C.O.'s experience in another institution makes him more valuable to the other institution. " The grievor advised that when he was accepted at G.C.C. no one told him he could not work at Walkerton, and that he accepted the position at Guelph because he anticipated being given more hours per week and more income. He advised that he was hoping to be able to work in both institutions and thereby augment his income and career opportunities due to the increased hours and experience. He advised that he had been available to work at Walkerton Jail since May 2, 1994 when he began to work at G.e.c. The evidence did not establish that the employer had at any time permitted an unclassified c.o. to work in two insti- tutions under two Apppointments which ran either simultane- ously or with partial overlap or concurrently It appears that while the Ministry had developed no stated rule or po- licy, a practice had developed whereby the employer, speci- fically the Jail and Correctional Centre Superintendents, tolerated if not approved part-time and full-time employment of unclassified C.O.s at "second jobs" other than at another jailor correctional instititution, provided that those jobs did not interfere substantially with the C o. 's availability in relation to the needs of the particular institution. 5 From the grievor's perspective, he had signed two Ap- pointments which overlapped, 1 e the Walkerton Jail Renewal from April 1, 1994 to September 30, 1994, and the G C C. Ap- pointment from May 2, 1994 to November 1, 1994, each of which were equally in force and effect for the periods stipulated in each Flowing from that, failure to be scheduled or called-in for shifts at Walkerton Jail constituted, from his perspective, constructive dismissal under that Appointment or contract We do not know the circumstances under which Mr. Best signed the May 2 to November 1, 1994 Appointment (Ex. 3) . He "" did not testify that if he had known that in signing the Ap- pointment (Ex. 3) he was agreeing that he would no longer be working at the Walkerton Jail he would not have signed it. We are obliged, on the evidence before us, to presume that he signed the Appointment voluntarily. In doing so, he may have proceeded in the belief that the April 2 to September 30, 1994 appointment remained in force and effect. The board has studied the grievor's Appointment to the unclassified service (Ex. 3) and finds two significant diffe- rences on its face from the previous series of renewal Ap- pointments. The first is the fact that both the "renewal" and the "change" boxes have been marked with an X, and the second is that the words "from Walkerton Jail to Guelph Cor- rectional Centre" are typed in to the right of the "change" box, to specify the change. The previous Appointments were marked "renewal" only The words "from Walkerton Jail to Guelph Correctional Centre", which were presumably inserted by the employer, suggest that the employer was communicating on the face of the Appointment that it was essentially a transfer of the grievor's previous Apppointment at Walkerton Jail. The extension of the duration of the previous contract from an end date of September 30, 1994 to November 1, 1994, reflecting the usual 6 month period of such appointments, cannot be construed as reflecting an intention to have the 6 two appointments continue to be in full force and effect side by side. The grievor is a member of the unclassified service. Each time a member of the unclassified service signs an Ap- pointment, whether it is the initial or a renewal Appoint- ment, s/he is signing a contract of employment which sets out some of the terms and conditions of his or her employment for the term indicated. In this case, on May 2, 1994 the grievor signed amended terms and conditions of the his Appointment ~ formerly effective April 1 to September 30, 1994. The board does not expect that the grievor is or should be skilled at / reading and determining the significance of each entry on the Appointments he is offered. However, it appears that he pro- ceeded on the assumption that both Appointments continued in effect concurrently, which, in the board's opinion, was a mistaken assumption which was not warranted on an objective reading of them. It appears that an individual employee being offered a renewal of an Appointment for signature may be at a disadvan- tage in comprehending the implications of what s/he is sign- ing. However, the employer is entitled to assume that an unclassified employee understands and will be bound by the terms of the Appointment that s/he signs, freely and volun- tarily, whether s/he obtains legal or union advice or not. Accordingly, we conclude that the grievor was not wrong- fully dismissed under the April 1 to September 30, 1994 Ap- pointment and the grievance does not succeed. Having so concluded, the board offers these observa- tions. The evidence did not establish whether the Ministry's administrative and budgetary requirements are so firm and im- mutable as to preclude the possibility of an employee having two or more simultaneous or concurrent Appointments at diffe- rent institutions to which his/her hours may be charged. It 7 did not establish that the issue of the circumstances, if any, in which overtime may be paid to such employees, or bud- get constraints which preclude the payment of overtime to such employees or insurmountable difficulties in recording the hours of such employees or compiling the record of their hours in two or more institutions in a given time period un- derlie the practice of not permitting an employee to work at two institutions at the same time. If the employer is creat- ing a pool of entry C o. positions in the unclassified ser- vice from which to draw when looking for full-time permanent classified C.O.s" and if more hours, which equal experience, will make unclassified c.o s more valuable to the employer both as classified and unclassified C.O.s, a continuing prac- tice of precluding unclassified C.O.s from working in two institutions and thereby from increasing their work experi- ence (in the absence of overriding administrative or budgeta- ry necessity) appear to meet no apparent administrative need and appears to defeat the employer's interest in developping a group of more experienced and therefore more valuable unclassified C.O.s. This grievance draws these matters into focus and pro- vides the parties, and particularly the employer, an opportu- nity to review the practice and consider whether it wishes to formulate a policy or practice that will address the above issues and any others that may be of relevance to it. 8 Dated at Toronto this 14th day of March , 1995. ~c;< ------ Susan D Kaufman Vice-Chairman A~ "~ ~ Don Clark Employer Nominee ,. ,.~~~... Ed SeYmour Union Nominee