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HomeMy WebLinkAbout1997-0151FORD98_07_14 .,..... ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO _ _ GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUlTE600, TORONTOONM5G 1Z8 TELEPHONEfTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (416) 326-139tJ GSB # 0151/97,0152/97,0153/97,0336/97 OPSEU # 97B437, 97B436, 97B435, 97B545 IN THE MA TIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ford) Grievor - and - The Crown m Right of Ontano (Mirustry of TransportatlOn) Employer BEFORE N Dlssanayake Vice-ChaIr FOR THE Ahck Ryder, Q C UNION Counsel Ryder Wnght Blarr & Doyle FOR THE Bnan Fukuzawa EMPLOYER Counsel, Legal SefYlces Branch Management Board Secretanat HEARING June 18, 1998 ...... 2 INTERIM DECISION This lnterim decislon deals with an issue that arose at the commencement of a hearing convened to determine 5 grlevances filed by the grievor, Mr Darryl Ford Those grievances for ease of reference may be described as follows (1 ) A reasonable efforts grlevance (2 ) A surplus and displacement grlevance (3 ) An educational leave grievance (4 ) A job competitlon grlevance agalnst a different mlnistry, COMSOC (5 ) A grievance alleging discrlmlnation in breach of artlcles 3 1 and 3 2 Counsel for the union stated at the outset that the grievances whlch were of primary concern were the grlevances alleglng a failure to make reasonable efforts as requlred by Appendix 9 of the collectlve agreement and the grlevance relating to the grlevor's surplus/displacement rlghts Counsel agreed that grlevance no 3 above re educational leave and no 4 re a job competition be adjourned sine die The Board accordingly orders that those two grievances be adjourned Slne dle with regard to the remaining 3 grlevances, counsel for the employer made a motion that I order that the same be either consolidated with, or heard together with another group of individual grievances referred to as the "Selby et al group" , which are scheduled to be heard before another panel of this Board on September 14 and 18 of 1998 The unlon !I!I""""'" 3 opposed this motion Submissions on the motion were received on the basis of an agreed statement of fact (which the union accepted for the purposes of this grievance only) and the testlmony of one witness The facts agreed to were as follows 1 Mr Ford's position was as a Constructlon Technlclan in the classification of a Techniclan Transportatlon Construction in the construction sectlon at the Huntsville District Offlce for the Mlnlstry of Transportation 2 The entire classlfication serles of Technlcian Transportation Construction was eliminated In a November 1996 downsizing Mr Ford was surplused Mr Ford attempted to bump but he was unsuccessful 3 Mr Ford grieved the surplus as incorrect because It should have occurred at the time when the request for proposal was sent out He also grieved that all his quallfication were not taken lnto consideration in hls attempt to displace He also grieved section 3 1 and 3 2 of the Collective Agreement 4 Mr Ford has two other outstanding grievances, one on denial of an unpaid leave for educational purposes, and the other for a Ministry of Community and Social Services competition he was not allowed to compete for because he was outside forty kilometres of the posltion 5 On September 14 and 18, 1998, the Grievance Settlement Board is scheduled to hear a number of grievances from the Ministry of Transportation 6 The Grievors argulng reasonable efforts and displacement on the list were In the following positlons A) Antonio Distefano, Patrick Northey, NeVln Patton Jay Harvey were Sr Technlclans In Technlcian Transportation Construction, B) John D Williamson was a Construction Technician in Technician Transportatlon Construction, C) Derek Buttle, James Orr, Dave Peebles, Mlchael Reddlck, Peter Vecchio, John Wheeler, George "IIIl!II""" 4 Hilliard and S stewart were Sr Technicians Survey, in Technician Transportation Constructlon, 0) Wayne Haggerty was an Archeological Techniclan, E) Ruth Jackson was an Environmental Plannlng Historian In support of the motion Mr Fukuzawa relied on the following decisions Re Piva, 1284/94 (Gorsky) , Re Hardman et al, 1206/90 etc (Verity) , Re Neamtz et al, 516/84 etc (Gorsky) With regard to Mr Ford's reasonable efforts grlevance, unlon counsel conceded that there was full commonallty of facts and law wlth the Selby group of grlevances He agreed that the application of the normal principles would support a consolidation Nevertheless, he argued that certain condltions should be attached to an order for consolidation in order to ensure that the hearing dates scheduled for September 14 and 18, 1998 are not "wasted" on discussing preliminary and procedural matters His concern on behalf of the grievor, was that the dispositlon of hls grievance may be delayed if lumped together wlth the other grlevances Mr Ryder acknowledged that grievance no 5 alleging discrimination was part of the surplus/dlsplacement grievance (no 2 ) He also acknowledged that there may be commonalitj between Mr Ford's surplus/displacement grlevance and the Selby group of grlevances as It relates to the positlons targeted for displacement However, he contended that with regard to the grievors' qualifications and experience etc the facts relating to each grievor would be different: ....... 5 Having reviewed the evidence and submissions of the parties I have concluded that It does not make sense to lsolate the remaining 3 grlevances of Mr Ford from the other group of grievances Whlle obviously there will be some facts peculiar to each grlevor, there will be a substantial amount of common facts In thls regard I note that the request for proposals affecting each grievor was centrally issued They were substantially the same, varYlng only in relatlon to the technical details of the particular project Llkewlse, the position specificatlons of the grlevors were the same province-wide .:1\1 so , the rellef sought in the grievances are common While I am convinced that It makes no sense to hear Mr Ford's grievances separately, I am not so convinced that In the particular circumstances I should make a speciflc order for consolidation or that Mr Ford's grlevances be heard together with the Selby group of grlevances The evidence before me lS that the Selby group consists of a number of individual grievances While they have been scheduled before the same panel, at this time no determination has been made on how they are to be heard, l e whether they would be consolidated or heard one after the other That wlll be a decision to be made by the panel hearing the matter In the circumstances I order that the 3 grlevances filed by Mr Ford be also scheduled before the panel hearlng the Selby group of grlevances on September 14 and 18, 1998 That panel wlll then be able to determine how best to deal with all of the grievances, includlng Mr Ford's grlevances ...... 6 I am convinced that the foregolng order will not lmpose anj injustice or prejudice to Mr Ford or to any of the other grlevors In the Selby group On the other hand, it will enable the avoidance of duplication of evidence and legal argument Most importantly, l t avoids the posslbllity of different panels maKlng dlsparate findings on common issues In summary then, (1 ) Mr Ford's grlevances relatlng to educational leave and his Job competition grievance agalnst COMSOC are adJourned sine die on consent (2 ) The Registrar of the Board lS dlrected that Mr Ford's remaining 3 grievances be scheduled before the panel hearing the Selby group of grlevances on September 14 and 18 of 1998 I do not consider it appropriate to attach any conditlons to thls order If the union's concern about delay and waste of time lS justified, that lS something which can be raised and addressed before the panel hearing the grlevances /4- [L Dated this ~ day of July, 1998 at Ham~Ontario ~ -~~. - -j--~ Nimal lssanayax:e Vice-Chairperson