Loading...
HomeMy WebLinkAbout1996-2726.Mrowinski.03-08-27 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2726/96 UNION# 97C III IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (MrowInskI ) Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty FamIly and ChIldren's ServIces) Employer BEFORE Jamce Johnston Vice-Chair FOR THE UNION CarolIne V Jones PalIare Roland Rosenberg RothensteIn LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Len HatzIs Counsel Management Board Secretanat HEARING January 24 2002 Apnl16 & August 12, 2003 2 DECISION I have before me three gnevances filed by Janet Mrowlnskl The first gnevance dated September 5, 1996 alleges I gneve that the employer has violated the senlonty provIsions of the Collective Agreement and has violated paragraph 3 of a Memorandum of Settlement In GSB#'s 1288/93, 1289/93, 1290/93 The relief claimed IS "better senlonty date" The second gnevance dated September 4, 1997 alleges The employer has violated the Central Collective Agreement Article 18 (Length of Continuous Service) which has resulted In an Improper displacement (surplusslng) under Article 20, on the [Illegible] of Article 3 (dlscnmlnatlon practised by reason of handicap) The relief claimed In this gnevance IS "to have continuous service date recognized to date onglnally employed by Ministry (Sept. 1988), disqualifYing the surplus notlce(s) received" The third gnevance dated October 20, 1997, filed by Ms Mrowlnskl IS In the form of a letter which reads as follows October 20/97 To Mrs Bennett, Supervisor Dear Mrs Bennett. I am very concerned about the recent layoff notice received dated September 4/97, and on gOing Initially I was advised that my position was being eliminated However, It has come to my attention that I am to be displaced I have been given at vanous times other conflicting reasons for the Issues of the notice 3 I am an employee with a disability I believe that this IS on record with the employer I believe the layoff notice violates my rights under the collective agreement and the addendum concerning the "Enhanced Accountability Framework" between OPSEU and Management Board I request that the eXisting layoff notice be rescinded If there IS to be a notice of layoff Issued In respect of employment, I request that this be done In accordance with the collective agreement and the above-referenced Enhanced Accountability Framework. If, In the future, I am Improperly laid off from my position, I reserve the right to claim reinstatement and compensation for all lost wages and benefits I ask that this matter be referred to the next stage In the grievance procedure If It IS not resolved to my satisfaction Sincerely, Janet Mrowlnskl The hearings In this matter commenced before me on January 24, 2002 At that time the parties and Mr Mrowlnskl (the grlevor's father) made opening statements Mr Mrowlnskl made It clear that he did not want to be represented by the union as he felt that the union had not acted In the best Interests of his daughter In the resolution of three prevIous grievances These grievances were settled In 1994 and were not before me At the conclusion of the opening statements, we pursued settlement discussions which were ultimately unsuccessful At that pOint the grlevor and her father requested an adjournment of the proceedings As counsel for the employer and the union did not object to the granting of an adjournment, the request was granted The hearing reconvened on April 16, 2003 At this time the grlevor was represented by a different union counsel and no objection by the grlevor's father was raised to this representation At this time I met with union counsel, the grlevor and her father and at great length explained the process to Ms Mrowlnskl and her father Although I urged Mr Mrowlnskl to consider a settlement of the three grievances, It 4 became very clear that he was not listening to me and was determined to proceed to hearing Ms Mrowlnskl IS disabled Although she IS developmentally handicapped, the union did not take the position that she was Incompetent or unable to testify In the proceedings However, dUring our discussions on April 16th her father Indicated to me that he felt that she was not fit to testify and that he should be able to give eVidence on her behalf I advised him that unless his daughter was Incompetent or otherwise unfit to testify, she would have to give eVidence to support the allegations of discrimination and harassment on the part of the employer and members of management that she had alleged I told him that he could not testify about events that he had no first-hand knowledge of as he would simply be relating hearsay eVidence concerning what he thought his daughter had experienced Frankly In the circumstances of this case, I cannot think of any eVidence which would have been more unreliable At the end of our discussions, we agreed that the counsel would discuss the possibility of an agreed statement of fact which would limit the eVidence to be called by the union through the grlevor On the next day scheduled to deal with this case, Mr Mrowlnskl commenced by stating that his daughter was no longer prepared to be represented by the union Although the same union counsel who had previously appeared was present, he now objected to being represented by that counsel as well However, he agreed to proceed Counsel for the union commenced her submissions by asking Ms Mrowlnskl to confirm that she was not prepared to testify In the proceedings Ms Mrowlnskl Indicated that she was not prepared to do so Union counsel then Indicated that Mr Mrowlnskl wanted to read a statement to the Board Mr Mrowlnskl then made submissions, most of which I had heard on prevIous occasions pertaining to the history of the case before me, his views concerning the events which led up to the grievances being filed and his concerns with the representation being provided to his daughter 5 Counsel for the Ministry denied that there had been any violation of the collective agreement In this case and rejected any suggestion that the grlevor had been discriminated against or harassed by the employer Counsel then provided me with the following draft statement of facts DRAFT - Agreed Statement of Facts 1 The grlevor began her employment with the Ontario Public Service as an unclassified employee with a series of contracts from September 19th, 1988 to April 30th, 1993 2 The grlevor's employment with the OPS (MCCR) ended on April 30th 1993 The grlevor subsequently filed three wrongful dismissal grievances which were resolved by a Memorandum of Settlement dated September 24th 1994 , 3 The memorandum was a full and final settlement and Included a general release clause at paragraph 10 Pursuant to the Memorandum of Settlement, If the grlevor was successful In gaining a classified position, the grlevor's seniority date or continuous service date would be effective the date of her acceptance of that new position unless by operation of the Collective Agreement the grlevor was somehow entitled to an earlier seniority date 4 In the grlevor's circumstances, November ih, 1994 was the appropriate CSD as the grlevor had a break In service between May 1 S\ 1993 and November 6th, 1994 which was greater than 13 weeks 5 On February 6th, 1996, Mr Ed Dunn, employed In the position of Resource Clerk (OAG 3) with the Information Systems Branch of the Ministry, was advised that his position was being surplussed Mr Dunn had a CSD of January 9th, 1989, and was working In an OAG 3 position prior to being surplussed Mr Dunn exercised his displacement rights and pursuant to a letter dated September 3rd, 1996, was advised by the employer that In accordance with 24 9 1 (b) of the Collective Agreement (January 1 S\ 1992 to December 1 S\ 1993) he was being assigned to the position of File Clerk (OAG 2) at the Blrchmount Road office of the Ministry of Community and Social Services In or around this time, the grlevor was advised that she was to be displaced by Mr Dunn, a more senior employee at a higher classification In response, the grlevor filed her first grievance regarding her CSD on September 5th 1996 The grievance Indicated that the grlevor wished a better seniority date 6 6 The Employer postponed giving the gnevor a surplus notice pending confirmation of her continuous service date An Investigation was completed on the gnevor's CSD In May of 1997 which concluded the gnevor's CSD was In fact November ih, 1994 One of the reasons In support of the Employer's rationale was the presence of a break In service of greater than 13 weeks Accordingly, pursuant to the Collective Agreement between the parties, the CSD of November 7, 1994 was proper for the gnevor In the circumstances 7 In light of the above, the Employer Implemented the September 1996 surplusslng By virtue of a letter dated September 4th, 1997, the gnevor was declared surplus and was provided a potential layoff date of March 4th, 1998 The gnevor Indicated she wished to work out her notice penod and be available for employment opportunities dunng that time 8 The gnevor apparently filed a second gnevance on September 4th, 1997, alleging an Improper displacement under Article 20 and also a violation of Article 3 of the Collective Agreement. The Ministry did not receive notice of this gnevance until November 21 S\ 1997, and maintains that It IS not timely pursuant to the Collective Agreement between the parties The gnevor filed a third gnevance on October 20th, 1997, regarding the Enhanced Accountability framework and also again the recent layoff notice The Employer takes the position that this gnevance was also not filed within the time limits specified of the Collective Agreement and therefore IS not arbitrable 9 The gnevor was offered and accepted a temporary assignment under Article 20 of the burgundy Collective Agreement on February 2ih, 1998 The temporary assignment was as a File Clerk (OAG 2) and the duration was from March 2nd, 1998 to June 30th, 1998 The gnevor maintained her rate of pay at $15 87 per hour On June 25th, 1998, the Ministry assigned the gnevor to a vacancy under Article 20 5 2 of the burgundy Collective Agreement. This position was as a Income Maintenance File Clerk (OAG 2) at the 252 Parliament Street Ministry office The gnevor began work In this position at that time 10 As a result of the Ministry contracting out the "Ontano Works" portion of the Ontano Disability Support Program (ODSP), all File Clerks (OAG 2) across the province were surplussed In and around June of 1999, Including the gnevor In particular, all file clerks In the Toronto region office were surplussed and only two (Shirley Beales, CSD 1978 and Stephen Gill, 1976 CSD) were reassigned pursuant to the surplus provIsions All other file clerks In the Toronto region offices did not secure employment through the surplusslng and Job stability provIsions of the Collective Agreement. Some affected employees retired and others applied to subsequent competitions In one example, an 7 employee named Arata De with a 1988 CSD was surplussed and elected to work through her notice penod and preserve her recall nghts through to December 2001 No work was ever offered to this employee as the work had been contracted out of the Ministry For the sake of completeness, I have attached the Memorandum of Settlement referred to In Paragraph 2 to this decIsion as Appendix "A" Counsel for the union requested time to review the proposed statement of facts with her client. After a lengthy recess, counsel Indicated that they were prepared to agree that Paragraphs 1 and 9 were accurate and that the first four sentences of Paragraph 10 were also agreed to The union and Mr Mrowlnskl did not take a position on the last two sentences The union and the gnevor Indicated that although they disagreed with the factual assertions In Paragraphs 2 to 8, they would not be calling any eVidence to contradict them In response, counsel for the Ministry brought a motion to dismiss the gnevances before me If the gnevor refused to testify and the union could not prove ItS case otherwise, counsel argued that the union had failed to meet the onus upon It and the gnevances should be dismissed In support of his position, counsel referred me to Day v Canada (Department of National Defense) No 6 Apnl 4, 2003, CHRR Doc 03-069,2003 CHRT 16 (Groake) (the "Day" case) The Day case dealt with a complaint filed with the Canadian Human Rights Tnbunal In that case, the Tnbunal found Ms Day to be an unreliable witness and In the absence of any adm Isslble eVidence to support her allegations of harassment, dismissed her complaint. Although much of the employer's proposed statement of fact has not been agreed to by the union or the gnevor, I have set It out In this decIsion as It represents the employer's position on the events leading up to the filing of the gnevances before me I wish to make It clear that save for those paragraphs specifically agreed to by the union and the gnevor I have not relied upon the facts asserted by the employer In coming to the conclusions reached In this decIsion 8 In the case before me, I do not have any eVidence before me to substantiate the allegations raised In the grievances All I have before me are a few agree-to facts pertaining to Ms Mrowlnskl's employment history with the Ministry As Ms Mrowlnskl's refused to testify, the union was unable to advance a case on her behalf Given the nature of the grievances, her first-hand eVidence regarding the events alleged was crucial Before leaving this matter, I would like to commend counsel for the union and the employer for their patience and understanding In dealing with a difficult situation It IS unfortunate that the grlevor's father refused to accept the advice he was being given by both the union counsel Involved In this case HIs refusal to allow his daughter to testify tied the hands of union counsel and unfortunately led directly to the dismissal of the grievances In my View, the counsel retained by the union to represent the grlevor did so In an extremely competent and capable manner Accordingly, as the union was unable to put forward any eVidence to substantiate the three grievances, I have no choice but to dismiss them Dated In Toronto this 2ih day of August, 2003 -------------.- ----- --~--- A PPf~"J 1:)1 'f 1/ 11 II GSB # 1288/93 1289/93 1290/93 -- In the Matter of a Proceeding before the Ontario Public Service Grievance Settlement Board - -between- The Ontario Public Service Employees Union (The Union) -and- Ms Janet Mrowinski (The Employee) -and- -. The Crown In Right of Ontario (The Ministry of Consumer and Commercial Relations) .- (The Employer) MEMORANDUM OF SETTLEMENT AND RELEASE Without precedent or prejudice to any other matter and without the admission of wrongdoing by any of the parties, the parties agree to the following terms in full and -- final settlement of the above grievance 1 The Employer shall have the Employee's name added to the Corporate Surplus ~ I List (the "List") with the classification level of OAG 1, and the Employee shall remain ',\..\ ,j on the List until such time as she receives one job offer within the Gr!3ate~~& /,i&lJAtt Metr~it~m Toronto Area, ~~~~ ~~ ~v~~u~ . ~~.rt~~~V~::ij-k-'l~~ _~~~m~ \3'~~ .1 p..., 2 \~.. S6Tef)dor:1'iepu~o~~LsoTlD'laceme~t' updh the List and for priority in placement ( "I., l or competitions the Employee shall have an imputed seniority date of September 19, t O!~ 1988, the date of her first unclassified employment with the Employer f\ i...J::..- ,- Vy, ~ wet..Nvl..,(... v(l~ L'Q.-/) -~~~--A..... (::L:).. ~ ....Q.~~'..<:V pQ../.l..C).... t (J -.... 6"v <l:\JO~kh()1 ~ n oF' ^ 11.. ~ , >,' ') !"yY . ~~' IL )~" ~ ~~.tY\ Vl'l \A.--e....~ir' 'tf-'\..CL' . . V\.CVO ~"ce; c;...u.nCV\ ~t ,0 '1- v'Y\ 0- J.:.~ U \... ~ ~ ~v\..)',.&) C9'L . " ^ _'- (CI.) ~ "-CQ. - LVY-\O-Y.A.QA. v~(').:'v'v('>.~ a~ \&.1.. '\..LL\:-<-_ad. on W,2,..;J:c QXJ.i... ? Lj '0 I" C CQ l. Ll c..x. J Q ct.C~)YY\ f?./i'tt -2- - 3 In the event that the Employee is successful in gaining a classified position with the Employer the Employee's seniority date, or continuous service date, shall be effective the date of,. her acceptance of the position, unless, by operation of the -- Collective Agreement, she is somehow entitled to an earlier seniority date - 4 While on the List the Employee shall be provided with a contact person - (Employee Relations Advisor, Redeployment Coordinator} at the offices of the Employer who shall act as a liaison between the Employee and the Employer - 4a The Employee shall be permitted access, on appointment, during office hours to_ the II Self Study Learing Centre to upgrade her computer skills j~;1J0'\ 5 The Employee shall have the right to compete for restricted competitions during the period of time she is on the List - j. {;Lv 6 The Employer will provide the Employee with a mutually satisfactory letter of /12.J tj reference detailing her length of service, an evaluation of her performance and the (_, - q reason her employment ended~1tu.- (f~t.Q/;) ~e.e..... \0 CLht~~ ~ I\Y' 0 CJ'l..."Y> o...lc' c;u::. eo..n QL; ~ c..o ~OL_____ \' 20 ft:i<f 7 Save and except those rights explicitly set out in this agreement the Employee " \I shall not have any rights under the Collective Agreement or the Public Service Act or the Crown Employees Collective Bargaining Act. S The Employee and the Union agree to withdraw the above grievances 9 The Employee shall advise the Ontario Human Rights Commission that all of the - issues raised in Complaint #60-S78J have been addressed through this settlement and - that the Employee does not wish to proceed with the complaint. - 10 Tbe Employee shall not make the circumstances of her employment o~ termination from emploYfllSlnt with the Employer or any circumstances of her relationship with the Employer prior to the date of the signina of this A9~ement the" - subject of any compliant, grievance or proceeding before any board, tribunal, court or I body of an nature Notwithstanding the above the Em loyee shall have the right to ile a grievance or comQlaint alleqing that the Employer has failed to implement the_ - terms of this Agreement., 11 The Employer acknowledges that the Employee acted within her rights under the Crown Employees Collective Barqaining Act and The Human Riqhts Code in filing the complaints and grievances referenced above The Employer further acknowledges that the above Acts protect the Employee from reprisals for the filing of the complaints and grievances referenced above - -3- - ~~./~ oq /><0 AT e Employee Date - -- ltt~ ~&~ ~-t 20 Iq1 - The Union Date _ I - - NJt The Employer (MCCR) - - - - - - ---