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HomeMy WebLinkAbout1996-2600SELBY99_06_02 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2600/96 OPSEU # 97B164 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees Umon (John Selby) Grievor - and - The Crown In Right of OntarIO (Mimstry of TransportatIOn) Employer BEFORE Randl Hammer Abramsky V Ice-ChaIr FOR THE DIane Roberts GRIEVOR Counsel, Ryder Wnght Blair & Doyle BarrIsters & SohcItors FOR THE Len Marvy EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING Apnl 14, 1999 GSB No 2600/96 OPSEU (John Selby) and MInIstry of TransportatIOn At issue IS whether the Employer vIOlated the dIsplacement nghts of the gnevor, John Selby, under ArtIcle 24 4 l(d) That provIsIOn states, m pertment part, as follows 24 4 DISPLACEMENT 24 4 1 An employee who has completed hIs/her probatIOnary penod, who has receIved notIce of lay-off pursuant to Sub-sectIOn 24.2, and who has not been assIgned m accordance wIth the cntena of 24.5 to another posItIOn shall have the nght to dIsplace an employee who shall be IdentIfied by the Employer In the followmg manner (a) (b) (c) (d) Fmlmg dIsplacement under paragraphs (a), (b) or (c) above, the Employer wIll reVIew other classes whIch the employee held eIther on a full-tIme basIs, or who performed the full range of Job dutIes on a temporary basIs for at least twelve (12) months m the same mmIstry wIthIn forty (40) kIlometres of the surplus employee's headquarters. The Employer WIll IdentIfy, m reverse order of semonty, a less semor employee m the class wIth the maXImum salary closest to but not greater than the maXImum salary of the surplus employee's current classIficatIOn. The IdentIfied employee shall be dIsplaced by the surplus employee provIded he/she IS qualIfied to perform the work. The gnevor asserts that he should have been allowed, under thIS provlSlon, to dIsplace an employee many of the classIficatIons he had prevIOusly held In the past. 1 FACTS Mr Selby's contInUOUS servIce date is May 9 1978 and at the tnne of hIS surplus he held the posItIon of TechnICian TransportatIOn ConstructIOn. He was headquartered In Beaver Dams. PrevIOusly, he held the posItIOns of TechnICian 1 ConstructIOn, Clerk 4 Supply, TechnIcIan 3 Survey and Clerk 2 Supply ImtIally, Mr Lock was offered a dIsplacement opportumty In a Clerk 2 Supply posItIon In St. Cathannes That opportumty was then reSCInded and the Clerk 4 Supply classIficatIOn was IdentIfied as the "class wIth the maXImum salary closest to but not greater than the maxImum salary" of hIS posItIon of Semor TechnICian TransportatIOn ConstructIOn. Upon reVIew of the semonty l1st, no one m thIs classIficatIOn wlthm forty kllometres was avmlable for dIsplacement. Mr Selby was then offered a bump to a Clerk 4 Supply posItIOn beyond 40 kllometres, m New Llskeard, wluch he declIned. The Umon does not challenge the Employer's ImtIal reSCISSIon of the dIsplacement or the "redomg" of It once errors were IdentIfied. POSITIONS OF THE PARTIES The Umon and the gnevor contend that the gnevor should have had the opportumty to dIsplace an employee m the other posItIons he held m the past for more than one year, particularly the Clerk 2 Supply posItIon. 2 The Employer relymg on OPSEU (Penny) and Ministry of Natural Resources GSB No 697/96 (VIce Chmr Venty)(1997) contends that It properly comphed wIth ArtIcle 24 4 I (d) when It IdentIfied the Clerk 4 Supply classIficatIOn as the "class wIth the maXImum salary closest to but not greater than" the gnevor's current posItIOn. Under Penny, the Mimstry asserts that there was no further obhgatIOn to consIder any other classIficatIOn that the gnevor may have held m the past. The Umon does not challenge the Penny decIsIOn or ItS apphcabIhty to thIS matter DECISION The outcome of thIS gnevance IS controlled by the board's decIsIOn m OPSEU (Penny) and Ministry of Natural Resources, supra. In that case, the grIevor, a long servIce employee who had held many posItIons over the years, was surplused and there was no available dIsplacement OppOrtunIty m the Mimstry under ArtIcle 244 lea), (b) or (c) The Umon argued that under ArtIcle 24 4 1 (d), the Mimstry had to search for a dIsplacement opportumty in any classIficatIOn prevIOusly held by the gnevor, not Just m the classIficatIOn WIth the maxImum salary closet to but not greater than the maxImum salary of the gnevor's current claSSIficatIon. The board, based on the language of ArtIcle 24 4 I (d), dIsmIssed the gnevance, concludmg that the Mimstry properly hmlted ItS search to a less semor employee "m the class wIth the maxImum salary closest to but not greater than the maXImum salary of the 3 surplus employee's current classIficatIOn." The board held that the Umon s InterpretatIOn "appears to suggest an addItIOnal step not actually contaIned In the language of the provIsIOn." (DeclSlon at p 12) Based on the Penny declSlon, which I am reqUIred to follow, the Instant gnevance must be dIsmIssed. The MInIstry "revIewed" the other classes whIch the gnevor had held for at least twelve months In the same mInIstry - TechmcIan 1 ConstructIOn and Heavy EqUIpment OperatIOn 3 It then attempted to "IdentIfy, In reverse order of semonty, a less semor employee In the class WIth the maXImum salary closest to but not greater than the maXImum salary of the surplus employee's current classIficatIOn" - WhIch was the Clerk 4 Supply classIficatIOn. SInce no one In thIS classIficatIon WIthIn forty kIlometres was avmlable for dIsplacement, the Mimstry proceeded to ArtIcle 24 4 1 (e) It dId not have to search for a dIsplacement opportumty In the other pOSItIons that the gnevor had held In the past. To reqUIre It to do so would, as set out In Penny, add "an addltwnal step not actually contaIned In the language of the provIsIOn." AccordIngly, under the board's deCISIon In Penny, supra, the grIevance must be dIsmIssed. Issued thIS 2nd day of June, 1999 In Toronto OO:~ rf#onA77q'y rom& Hammer Abramsky, Vicealr 4