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HomeMy WebLinkAbout1997-1095REGIMBAL99_02_23 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE600, TORONTO ONM5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPIE (416) 326-1396 GSB # 1095/97 OPSEU # 97E092 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Betty RegImbal) Grievor - and - The Crown m RIght of Ontano (Mmlstry of the SolICItor General and CorrectIOnal SerVIces) Employer BEFORE Owen V Gray V Ice-Chair FOR THE Nelson Roland GRIEVOR Counsel FOR THE Lmda Stevenson EMPLOYER Staff RelatIOns Officer MmIstry of the SolICItor General and CorrectIOnal ServIces HEARING January 27, 1999 DECISION .., [1] In May 1998 the partIes entered mto a Memorandum of Settlement ("the Memorandum") m thIS matter The Memorandum contemplated that the grIevor would apply for a regular part-tIme posItIon at the WhItby Jall and, If successful, would wIthdraw her grIevance m thIS matter on certam terms The grIevor thereafter applIed for but was not awarded the pOSItIOn referred to m the agreement. The Issue addressed m tills deCISIOn IS whether I can entertam the grIevor's challenge to the outcome of that competItIOn by vIrtue of paragraph 9 of the Memorandum, whIch provIdes that "Owen Gray, VIce-Chalr of the GrIevance Settlement Board, shall remam seIzed of thIS Memorandum of Settlement" [2] In her grIevance dated August 1, 1997, the grIevor alleged "Improper surplussmg" and asked that she be remstated to her Nurse 2 pOSItIOn at the WhItby Jall. That grIevance was referred to arbItratIOn, and became the subJect of thIS GrIevance Settlement Board ("GSB") FIle 1095/97 The partIes engaged m medIatIOn In January 1998 In May 1998, the partIes entered mto the Memorandum, WhICh provIded as follows The partIes hereby agree to settle the above-noted gnevance on a Without preJuchce or precedent basis on the followmg terms and conchtiOns 1 Should the Gnevor be successful m the competitiOn for the regular part tune classuied pOSition (Nurse 2) at the Whitby Jail, the Dillon and the Gnevor shall Withdraw the above-noted gnevance on the followmg terms and conchtiOns, 2. Should the Gnevor not he successful m the competitiOn mentiOned m ~ 1 herem the gnevance shall contmue m the normal course I 2 3 Should the Gnevor be successful m the competltIOn mentIOned m 11 herem the MImstry shall, a) offer to the Gnevor any extra hours avaIlable on days for whIch she IS otherwIse scheduled to work, and b) when practIcal and operatIOnally feasible the MmIstry will offer the Gnevor the opportumty to work any 40 hours/week schedule that becomes available It IS understood that a shIft may be changed wIthout any premIUm or penalty If agreed upon between the employee and the MmIstry The prOVISIOns set out m a) and b) shall remam ill force for two years from the date the Gnevor begms work or until the WhItby Jail closes whIchever IS earher 4. The Gnevor and the MmIstry agree that should the Gnevor be successful m the competltIOn mentIOned m 11 herem and C0mmence employment m the posItIon the amount owed pursuant to ArtIcle 202.5 of the Collectlve Agreement shall be $3,00000 to be paid on the day of the commencement of employment. 5 The MImstry shall provIde a letter to Revenue Canada verIfymg the repayment of the amount mentIOned herem 6. The Gnevor shall be allowed to apply for any posted full tIme classIfied posItIOns ill the IHC Bargammg Umt wIthm the Jail as they become available 7 The MmIstry will rermburse any unused amount paid for benefits contmuatIOn by the Gnevor Further the MmIstry shall not cash any cheques of the Gnevor for benefits m the future, 8 The partIes agree that thIS IS a full and final settlement of all Issues m dIspute ansmg out of the gnevance dated 01 August 1997 OPSEU 097E092 GSB #1095/98 and 9 The PartIes agree that Owen Gray Vice-ChaIr of the Gnevance Settlement Board, shall remam seIzed of thIS Memorandum of Settlement. [3] The gnevor thereafter applIed for the posItIOn referred to In the Memorand urn. The p artles agree that whether she had entered mto the Memorandum or not, the gnevor would have had the same nghts as any other claSSIfied employee to apply for the pOSItIOn and partICIpate m the competltIOn, and to gneve any alleged faIlure of the employer to abIde by the collective agreement m conductmg the competItIOn. [4] On July 30, 1998 the gnevor learned that the employer had not awarded her the pOSItIOn. On August 5, 1998 the uruon asked the GSB to put thIS file back on for hearmg before me The preCIse wordmg of that request IS not before me, . 3 nor IS the content of any other commumcatIOn by eIther party to the other between July 30, 1998 and January 27, 1999, when the matter came on for hearmg before me [5] The umon's posItIOn at hearmg was that I should deal wIth the questIOn whether the gnevor had been Improperly or mcorrectly demed the part tIme nursmg posItIOn referred to m paragraph 1 of the Memorandum of Settlement before dealmg wIth the ongmal gnevance, smce If I decIded that the competItIOn had been Improperly conducted and that the gnevor was entItled to the posItIOn, the prOVISIOns of paragraphs 3 through 7 of the Memorandum~of Settlement would come mto play and the ments of the ongmal gnevance would be moot. [6] The employer's posItIOn was that the Memorandum of Settlement does not gIve me JunsdIctIOn to resolve a dIspute concernmg the conduct of the competItIOn referred to m It, that any such dIspute could have been made the subject of a separate gnevance, that such a gnevance had not been filed and would not now be tImely, and that all that was left was to address the ongmal gnevance m accordance wIth paragraph 2 of the Memorandum of Settlement. [7] The threshold questIOn, then, was whether I could entertam the gnevor's challenge to the outcome of that competItIOn by vIrtue of the partIes' agreement that I am "seIzed of thIs Memorandum of Settlement" Beyond the undIsputed facts already recIted, the only eVIdence tendered m connectIOn WIth thIS questIOn was that of the gnevor She testIfied that she was present at the negotIatIOn of the Memorandum and had sIgned It. She was asked "If It had been your understandmg that the employer would be allowed to conduct the competItIOn mentIOned m paragraph 1 m a way that was Improper or m bad faIth, would you have entered mto the Memorandum of Settlement?" She answered "no" [8] Dmon counsel argued that m order to gIve the Memorandum the labour relatIOns eqUlvalent of "busmess efficacy," I must mterpret the references m It to the gnevor's bemg successful or not successful m the competItIOn as focusmg on whether she was entItled to be successful. It would therefore be wIthm the 4- JUrISdIctIOn reserved to me by paragraph 9 of the Memorandum to resolve the grIevor's complamt that she had been demed the posItIOn m bad faIth or m breach of the applIcable provIsIOns of the collectIve agreement. He submItted that to reject that mterpretatIOn would be to accept that the grIevor could only be "successful m the competitIOn" for purposes of the Memorandum If the employer chose to award her the posItIOn. On that mterpretatIOn, he submItted, the employer could deprIve the grIevor of the benefit of paragraphs 3 through 7 of the Memorandum by sImply refusmg to award her the posItion. Successfully grIevmg the refusal under the collective agreement would not restore those benefits to her, smce she would still not have been successful m the sense reqUIred by thIS alternatIve mterpretatIOn. Thus, he argued, the unIOn's mterpretatIOn was the one that meanmgfully gave effect to the prOVISIOns to whIch the partIes agreed m the Memorandum, and should be preferred [9] The employer's representative neIther adopted nor rejected the alternative mterpretatIOn agamst whIch the umon's argument was dIrected She argued that the Memorandum says what IS to happen If the grIevor IS successful m the competitIOn and what IS to happen If she IS not, but does not transform an Issue about the conduct of the competItIOn mto somethmg WIth whIch I am seIzed under paragraph 9 [10] The Memorandum of Settlement does not mcorporate by express reference the prOVISIOns of the collective agreement that govern the conduct of Job competItIOns The partIes had no reason to do so There would not have been any questIOn whether the employer would be allowed to deprIve the grIevor of the posItIOn, and thence the benefits of paragraphs 3 to 7 of the Memorandum, by conductmg the competitIOn m a manner contrary to the prOVISIOns of the collective agreement. The employer was oblIged by the collective agreement to conduct the competitIOn m an approprIate manner, and the grIevor had the protectIOn of those collective agreement prOVISIOns mdependent of anythmg m the Memorand urn. \ " 5 [11] I do not accept that the two alternate mterpretatIOns of "successful m the competitIOn" offered In the uruon's submIssIOns are the only possible mterpretatIOns of that phrase Havmg regard to the context m whIch the phrase IS used, I conclude that the gnevor was to be consIdered "successful m the competitIOn" for the purpose of tills Memorandum If the result of the employer's decIsIOn and any subsequent gnevance was that the posItIOn was hers If she had been awarded the posItion InItially and then been removed from It as a result of some other employee's successful gnevance, I do not thmk the Memorandum could have been raIsed as a bar to her pursumg her ongmal gnevance thereafter SImIlarly, If the gnevor gneved the employer's decIsIOn not to app~omt her to the posItIOn and was ultimately awarded the posItIOn by order of an arbItrator, or as a result of a rerun competitIOn ordered by an arbItrator, the ongmal employer decIsIOn that had been overruled at arbItratIOn could not be raIsed as a defence to the gnevor's claim to the benefits of paragraphs 3 to 7 of the Memorandum. It IS not necessary to treat the Job competItIOn prOVIsIOns of the collectIVe agreement as havmg been mcorporated mto the Memorandum by ImplIcatIOn m order to gIve ItS express prOVISIOns the labour relatIOns eqUIvalent of busmess efficacy [12] Accordmgly, I accept the employer's argument that I do not have JunsdIctIOn under paragraph 9 of the Memorandum to entertam the gnevor's complamt about the way the employer conducted the competitIOn or made ItS decIsIOn about the outcome [13] The gnevor may now wIsh to gneve the outcome of the competItIOn under the collectIve agreement It would be for the VIce-ChaIr assIgned to hear that gnevance to determme whether It IS timely and, If not, whether the time lImIt should be extended so that the gnevance can be dealt wIth on ItS ments If such a gnevance IS filed and referred to arbItratIOn and the Board deCIdes, or the employer agrees, that It can be entertamed on ItS ments, then the questIOn whether paragraphs 3 through 7 of the Memorandum apply WIll have to awaIt the outcome of those proceedmgs .~ . 6 [14] ThIs matter IS presently scheduled for hearmg on May 17 and 31, 1999 The partIes should advIse the RegIstrar as soon as possIble what they wIsh to do wIth those dates Dated at Toronto thIS 23rd day of February, 1999 ~