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HomeMy WebLinkAbout1997-0753.DIBRINA.97_10_29 . ONTARIO EMPLOYES DE LA COURONNE COOWN EIrlPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 800, TORONTO ON M6G 1Z8 TELEPHONE/TELEPHONE (41") 32"-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G tZ8 FACSIMILE/TELECOPIE (416) 3~-13Q6 GSB # 753/97 CUPE # 97-28 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE 1750 (F Di Brina) Grievor - and - The Crown in Right of ontario (Workers' Compensation Board) Employer BEFORE o V Gray Vice-Chair FOR THE N Milanovic GRIEVOR Counsel Canadian Union of Public Employees FOR THE E Kosmidis EMPLOYER Counsel Workers' Compensation Board HEARING October 15, 1997 DECISION The employer termmated the grIevor's employment effectIve June 17, 1997 for alleged dIshonest conduct. The employer had employed lum m a position outsIde the bargamIng urut for about twenty workmg days at that time PrIOr to that he had been employed m a bargaIrung unIt posItion. The dIscharge occurred m the tnal penod contemplated by ArtIcle 507 of the partIes' collective agree- ment. 507 Transfers OutsIde of the Bargammg Umt No employee shall be transferred to a pOSItIOn outSIde the bargammg umt WIthout his consent. Such an employee will be conSIdered to be "on tnal" for a penod of not more than sixty (60) workmg days. Durmg thl8 period of trme if, m the opmion of the Employer, the em p10yee IS unsatisfactory or If the employee so requests, he shall be reo turned to hl8 former salary classification and placed m a pOSItIOn for whIch he 18 quahfied without loss of seniority The grIevor filed a gnevance challengmg the termmatIOn of lus employment, and the uruon pursued It on lus behalf. The gnevance was referred to arbItration. When the arbItratIOn came on for hearmg, the partIes agreed that I should determme a prehmmary Issue about the arbItrabIhty of the gnevance They also agreed on the followmg facts. 1 Fehx DtBrma was fIrst hIred by the Workers' CompensatIOn Board (WCB) on June 10, 1991 as a summer student. On August 30, 1991, he was offered the temporary pOSItIOn of Mail Room Clerk 1 and he worked m thIS Job until December 26, 1991 2. Fehx DtBrma was subsequently rehIred mto the bargammg umt as an Access File Clerk, WIth the status of a non-permanent contract employee, on September 15, 1994. 3 He became a permanent bargammg umt employee effectIve December 9,1994 when he successfully competed for the Access File Clerk pOSItIOn. Mr DiBrma completed hIS bargammg umt probatIOnary penod for the Access File Clerk pOSItIOn on or about March 15, 1995 From about May - 2 - 1, 1995 until May 20, 1997, Mr DtBrma temporarily held a number of bargammg umt posItIons while retammg hIS status as a permanent em ployee (Access FIle Clerk positIOn) withm the bargaining unit. 4. Subsequently, Mr DtBrma competed for the pOSItion of AssIstant Ana lyst in the Special Investigations Branch of the WCB whIch is a non bargaming umt pOSItion. Mr DiBrma voluntarily accepted thIS pOSItion on May 21, 1997 5 Attached IS a copy of a letter signed by Mr DiBrma dated May 20, 1997, agreeing to accept the Assistant Analyst pOSItion. 6 Mr DiBrma paid umon dues while holdmg the Assistant Analyst pOSI tion until the pay penod of May 30, 1997 to June 12, 1997 Mr DiBrma was refunded these union dues, at thIS trme by the WCB, thereby effec- tively removmg the obhgatlOn for Mr DiBrma to pay umon dues as of May 22, 1997, and m any event before hIS discharge from the WCB 7 Mr DiBrina's employment as an AssIstant Analyst was termmated by the WCB within twenty workmg days of hIS acceptance of thIS non ~ bargammg umt pOSItion. Attached IS a copy of a letter dated June 19, 1997 terminatmg his employment effective June 17, 1997 As of the date of hIS dIscharge until present, Mr DiBrma does not hold any bargainmg unit or non-bargammg umt positIon WIth the WCB 8. Mr DiBrma fIled gnevance #9728, dated June 23, 1997, protestmg hIS dIscharge from the WCB (a copy IS attached) and demanded, tnter alw, full redress and reinstatement to hIS prevIously held position pursuant to the relevant articles of the sub collective agreement eXIstmg between the WCB and the CanadIan Umon of Pubhc Employees, Local 1750, (Local 1750) (a copy is attached), the bargaming agent representative m thIS grievance-arbItration. WCB has demed that Mr DiBrma has the right to gneve the termination of his employment. The letter referred to m paragraph 5 prOVIded for a SIXty day tnal penod. The termmatIon letter referred to in paragraph 7 saId that From the eVIdence gathered by your employer and the statement that you prOVIded, It has been concluded that you rmproperly obtained a copy of the works ample and scormg gUide for the SIB Analyst recruitment. Your actIons have been dIshonest, have shown untrustworthmess of charac- ter and are m drrect confhct WIth your pOSItIOn as an SIB AsSIstant Analyst. Effective June 17, 1997, your employment WIth the Board IS termmated for Just cause. It IS saId that the gnevor's WIfe was an applIcant for the SIB Analyst pOSItIOn referred to m the letter The preCIse nature of the partIes' prelImmary Issue underwent an evolu- tIon durmg argument. At first the Issue appeared to be whether the employer was correct that the gnevor could not grieve SImply because he was not employed - 3 - m a bargammg umt positIOn at the time of lus dIscharge. He had been trans- ferred to a non-bargammg umt posItIOn on a permanent basis. In those CIrcum- stances there was no prOVISIOn comparable to ArtIcle 1904, WhICh expressly pro- vIdes that an employee who IS temporanly assIgned to perform the dutIes re- sponsibIlIties of a pOSItIOn not covered by the collectIve agreement retaIns hIS rights under the collectIve agreement. The umon's answer to tlus was that an employee who agrees to transfer to a positIOn outsIde the bargaming unit stIll has the rights proVIded by ArtIcle 5 07 durmg the relevant trial period, and that a grievance allegmg breach of those rights raIses an arbItrable Issue. Reference was made to Re Umted Autoworkers, Local 1535, and Northern Electnc Co Ltd. (1972), 24 L.A.C 235 (WeatherIll) and Re lnterlmk Fre~ght Sermces and Transportatwn Commumcatwns Unwn (1996), 55 L.A.C (4th) 289 (M. G PIcher) The umon contended that a deCISIOn by the employer to dIscharge a transferred employee durmg the trial period triggers the employee's right to return to the bargammg umt under ArtIcle 5 07 1 Counsel for the employer conceded that an allegatIOn that ArtIcle 5 07 had been breached would raIse an arbItrable Issue. She submItted, however, that that artIcle did not apply m tlus SItuatIOn, because the grIevor was termmated for cause, not for unsatIsfactory performance. The prelIminary issue then became a questIOn about the meamng of Arti- cle 507 If durmg the trial perIOd contemplated by ArtIcle 507 the employer forms an opImon that there IS cause for dIscharge of the employee for reasons other than hIS or her abIlIty to perform the duties of the pOSItIOn, does that amount to formmg an opmIOn that "the employee IS unsatisfactory" wItlun the meamng of that artIcle, so as to trIgger the reqUIrement that the employee be returned to a bargaImng umt pOSItIOn? Employer counsel contended that It does not, that the rIght to return to the bargammg unIt only arIses If the employer IS I Umon counsel also contended that ArtIcle 506 gIves srmtlar nghts to an employee who has transferred to a non-bargammg umt pOSItIOn. I am not sure that that IS SO, but nothmg turns on whether It IS. There was no suggestIOn that ArtIcle 5 06 afforded any nght not prOVIded by ArtIcle 5 07 - 4 - not satIsfied wIth the employee's abIlIty to perform the duties of the non- bargammg urut Job to which he had been transferred. Uruon counsel countered that the artIcle makes no dlstmctIOn between disciplmary and non-dIscIplInary bases for a decIsIon to remove the employee from the posItIOn. He submItted that "unsatisfactory" covers any alleged basIs for such a decIsIOn, so that m thIS case the grIevor was entitled to challenge whether there was Just cause to term mate the bargammg unit employment to whIch the artIcle permItted him to return. ArtIcle 507 provides that the employer "shall" return an employee to a posItIOn m the bargalrung urut from a posItion outsIde the bargammg urut m cer- tam CIrcumstances. If, hypothetically, an employee's mIsconduct whIle m a POSI- tion outsIde the bargammg urut would ordmarIly Justify dIscharge from that or any other posItion, It seems mcongruous that the artIcle should oblIge the em- ployer to retam lum or her m a bargalrung unIt posItion. That apparent mcon- gruity may seem to support to the mterpretatIOn contended for by the employer The first-mentIOned hypothetical employee may be contrasted wIth one who SIm- ply dId not attain a satisfactory level of performance m lus new Job dun.ng the trial perIOd, but IS still qualIfied to perform a bargairung urut Job If "unsatisfac- tory" is mterpreted so that the oblIgatIOn arises under the artIcle m the last- mentIOned cIrcumstances but not m the first hypothetical, then the mcongrUIty IS prevented That approach to mterpretmg the artIcle IS superficIally appealIng, but on closer analYSIS I am persuaded that It IS wrong There are two triggers to the "right" to return to a bargaIning unit POSI- tion pursuant to ArtIcle 507 The employer's formmg an oplruon that "the em- ployee IS unsatisfactory" IS one trigger ("the employer oplruon trigger") A request by the employee IS the other trigger ("the employee request trigger") An mter- pretatIOn of the artIcle must take both triggers mto account. Focussmg on the employee request trigger for a moment, It IS noteworthy that It IS unqualIfied. It IS not expressly lImIted to CIrcumstances m wIDch the employee has not given the employer cause to term mate hIS employment. Ac- cordmgly, the apparent mcongrUlty IdentIfied earlIer m connectIOn wIth the em- 5 - ployer opmIOn trIgger also arIses WIth respect to the employee request trIgger It cannot be resolved wIth respect to the employee request trIgger by gIvmg "un- satisfactory" a special meaning Instead, the apparent mcongruity can and should be resolved wIth respect to both trIggers by recogruzmg that the eXIstence of a right to return to the bargammg urut pursuant to ArtIcle 5 07 does not pre- clude the operation of the employer's rIght to termmate the employment of a bargaIrung urut employee for Just cause. In Re Stemberg Inc. (Tnllmm Meats) and Umted Food & Commerc~al Workers, Local 633 (1991), 24 L.A.C (4th) 98 (O'Shea) (referred to m Re Interlmk Fre~ght Serv~ces, supra) an employee who had been promoted out of the bar- gaIrung urut to the posItion of foreman was questIOned about IrregularIties m rus recordmg of time worked by employees. In response, he asked to return to the bargaIrung umt pursuant to an artIcle wruch proVIded that "[a]n employee who IS promoted to a posItion outsIde the bargaIrung umt shall be permItted to return to the bargaIrung urut any time wIthm twelve months wIthout loss of seruorIty or other benefits" There was a dIspute about whether he had made that request before or after the employer had acted on the IrregularIties by termmatmg rus employment. The arbItrator found that the employee had made rus request be- fore the termmatIOn was effective, and had the rIght to grIeve the termmation. He also held that even If the employee had made the request after the employer dIscharged rum, the request would still have been effectIve to create a SItuatIOn m wruch the grIevor could challenge the termmatIOn, so that m eIther event the employer would have to demonstrate that It had Just cause to extmgUIsh the grIevor's employee status under the collective agreement. It seems reasonable to conclude that If CIrcumstances trIgger the em ployer's oblIgatIOn under ArtIcle 507 to return an employee to the bargaIrung urut, that would not preclude the employer from dIschargmg the employee for Just cause The employee would have the nght, however, to gneve the termma- tIon of the status as bargammg unIt employee to wruch he or she would other- WIse be entItled pursuant to ArtIcle 5 07 In that event, the employer would bear - 6 - the customary burden of estabhshing that there was Just cause for termmatmg that status. When ArtIcle 507 IS VIewed m that hght, the apparent mcongrUlty Identified earher does not arise wIth respect to eIther trigger, and there IS no reason to assIgn "unsatisfactory" a specIal meanmg m order to avoid it. The oblIgatIOn to return the employee to the bargammg UnIt IS triggered If the employer forms the opInIOn that "the employee IS unsatIsfactory" EIther the employer consIders an employee "satisfactory" or It consIders rum "unsatisfac- tory" The language of the artIcle does not create a thIrd category of "very un- satIsIfactory" or "unsatisfactory for reasons other than the employee's abIlIty to perform the duties of rus posItion." When an employer consIders that an em- ployee's conduct has gIven It Just cause to terminate rus employment, It cannot be said to regard the employee as "satisfactory" Accordmgly, when the employer concluded that it had cause to termmate the grievor's employment, It formed the opInIOn that he was "unsatIsfactory" wItrun the meanmg of ArtIcle 507 That IS the answer to the prelimmary Issue of mterpretatIOn. The grIevor cannot grIeve the employer's removal of him from rus non- bargaInIng UnIt pOSItIOn. Such a grievance would be marbItrable. He can, how- ever, pursue a grievance that the employer dId not have Just cause to termmate the bargaInIng UnIt employee status to wruch ArtIcle 507 gave him the right to return. Unless the employer can estabhsh that there was Just cause to termmate that status, the grIevor IS entitled to the benefit of ArtIcle 507, whatever that benefit may be m the CIrcumstances Those are arbItrable Issues WIth wruch I am not seIsed. Dated at Toronto thIS 29th day of October, 1996