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HomeMy WebLinkAbout1997-1225LEE99_03_11 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) MSG 1Z8 FACS/MILE/TELECOPIE (416) 326-139(5 GSB # 1225/97 1226/97 OPSEU # 97C433, 97C434 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Chaun Lee) Grievor - and - The Crown In RIght of Ontano (Management Board SecretarIat) Employer BEFORE RandI H. Abramsky V Ice-ChaIr FOR THE Mary Anne Kuntz GRIEVOR Gnevance Officer Ontano PublIc SerVIce Employees Umon FOR THE Lucy SIraco EMPLOYER Counsel, Legal ServIces Branch Management Board SecretarIat HEARING February 2, 1999 . AWARD On July 24, 1997, the grlevor, Mr Chuan Lee, filed two gnevances. One gnevance alleges that he has been "unjustly surplused under Article 20 of the collective agreement." The other WhiCh also relates to hIS surplus, alleges that the Employer Incorrectly calculated hIS continuous service date ("CSD") Both gnevances were heard as part of the backlog reductIOn process As the facts below wIll demonstrate, there are no factual or legal Issues between the Employer and the Unron. At the hearing, the Unron and Employer submItted an Agreed Statement of Facts, which IS set forth below' 1 On or before August 5 1985, the grlevor was on a rehabIlItatIOn trammg program through the Workers Compensation Board ("WCB") While on thIS program, the Gnevor was In receipt of benefits pursuant to sectIOn 54 of the Workers CompensatIOn Act ("WCA") as a result of a work injury suffered by the gnevor while employed With a former (non- government) employer 2 While reCeIVing hIS sectIOn 54 benefits It IS belIeved that rehabIlItatIOn/training opporturntIes were to be offered to hIm by WCB WIth partIcIpatmg orgaruzatIOns One such opportunity was offered to the grlevor by WCB With the MiniStry of Government SerVices (now "Management Board Secretariat" or "the Ministry") 3 A rehabIlItatIOn/training opportUnity began at the Minrstry on August 5, 1985 and was completed by the grlevor on or about October 7 1985 4 Another rehabIlItatIon/training opporturnty was arranged for the gnevor by WCB and was carried out by the gnevor at the MiniStry between November 1985 and September 1986 5 Dunng the penod described In paragraphs 3 and 4 above, the gnevor s remuneratIOn was paid by WCB and not the MiniStry Furthermore, willIe the Ministry prOVided an OppOrtunity for the gnevor to develop new skills that could allow hIm to re-enter the workforce In a pOSItIOn that would meet hIS phySical restnctIOns, the Ministry states that no offer of employement was ever made or guaranteed by the Ministry to the gnevor upon completion of hIS retraining 6 Ultimately, the gnevor was successful In obtaining an unclaSSified pOSItIOn With the Ministry He was appointed to the unclaSSified servIce for the first time on September 2, 1 1986 At tlus tIme, he was appolllted to an accounts payable clerk s posItIOn III the Flllance and Offices ServIces Branch of the MlruStry The appollltment termlllated on February 27 1987 7 The Gnevor was appolllted to the unclassIfied servIce for the second tIme on March 2, 1987 ThIS appollltment termlllated on August 31 1987 8 On March 15, 1988 the Gnevor was a successful candIdate for the claSSIfied pOSItIOn of accounts pavable clerk III the Flllance and Office ServIces Branch, effectIve March 14 1988 ThIs pOSItIOn was clasSIfied at the OA6 level 9 Accordlllgly and conSIstent WIth the gnevor s appollltments to the unclassIfied and claSSIfied servIce, the Gnevor s contllluous serVIce date ("CSD") was and contlllues to be properly calculated as September 2 1986 10 On or about June 24, 1997, the gnevor was adVIsed of hIS Impendlllg layoff due to the SurplUSlllg of hIS pOSItIOn. At that tIme, the gnevor occupIed the pOSItIOn of an Accounts Payable Clerk, claSSIfied at the OA 7 level, III the Mirustry s Flllance Branch. 11 On or about July 2, 1997, the gnevor was adVIsed that pursuant to ArtIcle 20 4 1 of the CollectIve Agreement, a dIsplacement had been IdentIfied for hIm. He was told that he could dIsplace a less seruor employee III an accounts payable clerk pOSItIOn, claSSIfied at the OA 7 level, III the MlllIStry'S Computer and TelecommunIcatIOns Branch. 12 On or about July 17 1997, the gnevor was further adVIsed that as a result of new InformatIOn receIved III the Human Resources ServIces Branch, the appropnate dIsplacement for hIm pursuant to ArtIcle 20 4 1 of the collectIve agreement was III fact an accounts payable clear pOSItIOn, clasSIfied at the OA7 level, In the GTA Office Support Branch of the Ontano Realty CorporatIOn (the "ORC") Property Management DIVISIOn. 13 The latter dIsplacement opportumty was accepted by the gnevor on July 24 1997, although allegedly under protest, Slllce the gnevor had filed two gnevances that day relatlllg to hIS surplus and dIsplacement. 14 One of the gnevances filed by Mr Lee on July 24, 1997 alleges that lus CSD servIce date under ArtIcle 18 has been lllcorrectly calculated by the MInIstry Pursuant to the statement of facts agreed to bv the partIes and as stated III paragraph (9) above, there IS no dIspute between the partIes that the grlevor's CSD has properly been calculated as September 2, 1986 15 The second of the gnevor s gnevances alleges that he was unjustly surplused under ArtIcle 20 of the CollectIve Agreement. It appears that thIS allegatIOn stems from the gnevor s belIef that hIS suplused pOSItIOn was lllcorrectly claSSIfied. There IS no dIspute between the partIes that the gnevor cannot bnng or raIse a clasSIficatIOn gnevance before the Gnevance Settlement Board (the "Board") gIven that pursuant to the Crown Employees' Collective Bargainzng Act and the CollectIve Agreement, the Board has no JUrIsdIctIOn to hear It. 2 The partIes also entered Into eVIdence exhibIts whIch generally support the Agreed Statement of Facts There IS one document, however, dated January 17, 1989, whIch the gnevor solIcIted from the Mimstry for 1I1lI1lIgratIOn purposes. That letter states that the grIevor "has been continuously employed wIth the ProVinCial Government Since July 1985 " It IS SIgned by a Personnel Records Clerk. However another MinIStry letter dated November 13, 1996, states that he has been "continuously employed wIth the ProVinCial Government Since February 9, 1986" All of the other documents, Includmg all offiCial personnel records, mdIcate that the gnevor was first appoInted to the unclassIfied servIce on September 2, 1986 As set out m the Agreed Statement of Facts, there IS no dIspute between the Employer and the Umon that the gnevor s CSD has been properly calculated as September 2, 1986 The gnevor however, belIeves that ills servIce WIth the Mirnstry from August 1985 through September 1986, whIle In the retraining program under the auspIces of the WCB, should have been Included In calculating hIS CSD There IS also no dIspute between the partIes that the gnevor cannot brIng or ralse a classIficatIOn grIevance, whIch IS, m essence, the subject of hIs surplus gnevance It IS clear, based on the documents m the record and the grIevor's statement at the heanng, that hIS surplus gnevance IS premIsed on hIS belIef that another co-worker who has less semonty than he was Improperly clasSIfied as an OA9 He submIts that had she been properly classIfied as an OA 7 she would have been surplused, not hIm. In hIS VIew they performed 3 exactly the same work but were not classified the same. Alternatively he belIeves he should have been classIfied as an OA9, wIth the same result. There IS one addItIOnal source of complaInt by the grlevor and It concerns hIS revised dIsplacement opportumty Ongmally the gnevor was scheduled to dIsplace SylvIa WhIte, the least semor OA 7 But upon learmng of the dIsplacement, she successful1\. challenged her CSD In lIght of that correctIOn, she was no longer the least semor OA 7, and Mr Lee was reqUIred to dIsplace someone else speCIfically Jacquelme Hall, an Accounts Payable Clerk WIth the ORC In hIS VIew because he IS stIll more semor than Ms WhIte he should have been allowed to dIsplace her Decision As IS eVIdent from the Agreed Statement of Facts and the submISSIOns of the partIes, the Umon does not assert that the Employer VIOlated the collectlve agreement. The Umon acknowledges that the Employer properly calculated the gnevor s' CSD and that he cannot, ill lIght of the Social Contract Act, the amendments to CECBA and the collectIve agreement, bnng what IS, In essence, a claSSIficatIOn gnevance before the Gnevance Settlement Board. In tills SItuatIon, where the partIes to the collectIve agreement - the Employer and the Umon - have no dIspute, the gnevances must be dIsmIssed. A SImIlar SItuatIOn arose In OPSEU (Cochran) and Ministry of Natural Resources GSB 833/96(Abramsky 1997), where the partIes to the collectIve agreement - the Umon and the Emplover - agreed that there had been no VIOlatIOn of the collectIve agreement. There, I stated at p 7 4 [A]n arbitrator is limited to enforcmg the collectIve agreement. An arbitrator has no general JUrIsdictiOn to nght wrongs or correct an mJustice. With some exceptiOns not applicable here, an arbitrator s JUrIsdictiOn extends only to enforcmg the terms of the partIes collective agreement. Where, as here, the parties to the collective agreement - the Umon and the Employer - do not contend that there has been a VIolatiOn of the agreement, then the grIevance must be dIsmIssed. Accord, E. Blake et al and Amalgamated Transit Union and Toronto Area Transit Operatll1g Authority, GSB No 1276/87 et al (Shime, 1988) Moreover my reView of the eVidence leads me to agree that no ViOlatiOn of the collective agreement occurred. In my View the Employer correctly calculated the gnevor's CSD The gnevor claims that hiS serVIce should mclude the penod he worked for the MmIstry as part of a retraImng program developed by WCB The Board's Junsprudence, however clearly states that an mdividual cannot be employed m the public service wIthout bemg appomted to the public service, eIther as a classIfied or unclassified employee. OPSEU (Konya) and Minzstry of Natural Resources, GSB No 494/83 (Roberts, 1985), OPSEU (Hood) and Ministry of Natural Resources, GSB No 113/95 (Gray, 1997) It has been held that appomtment to the public service "was not mtended to encompass persons like the gnevor who served with the Mimstry under third party contracts with outSide employment agencIes." Konya, at p 8 Mr Lee s early services With the Mimstry under SectiOn 54 of the Ttorkers' Compensation Act, was m the nature of a Hurd party contract between the Mimstry and WCB The record shows that he was not appomted to the unclaSSified service until September 2, 1986 Accordmgly the time he spent with the Mimstry while engaged m the WCB retrammg program cannot be Included m calculatmg ills CSD, and the Mirustry s calculatiOn of hIS CSD as of September 2, 1986 was proper 5 To the extent that Mr Lee has a Mimstry letter statIng that he has been "contmuously employed" by the Mimstry smce July 1985, that letter cannot overnde the offiCIal personnel documents or the uncontested facts Nor IS It relevant that he performed the same work he later performed as an unclassIfied employee That was precIsely the sItuatIQn m Konya, yet the Board concluded that hIS tlurd-partv work could not be mcluded m calculatmg hIS CSD The same result applIes here SImIlarly, I concur WIth the partIes that the GSB no longer has any JurIsdIctIOn to hear what IS, m essence, a classIficatIon gnevance Mr Lee s grIevance that he was Improperly surplused IS entIrely based on hIS clarm that eIther he, or hIS co-worker have been mIsclassIfied. That IS an Issue over WhIch the GSB no longer has any JunsdIctIOn. See, OPSEU (Rosamond) and MInistry of Citizenship Culture & Recreation, GSB No 2086/96 (LeIghton, 1998) Fmally I find no error m the MImstry s correctIOn of Mr Lee's dIsplacement OpportUDlty Although, ongmally, Ms. WhIte was the least seruor employee In the same claSSIficatIOn and m the same mImstry as the gnevor that changed when her CSD was corrected. With that correctIOn, she was no longer the least seruor employee - Ms Hall was, and It was Ms. Hall s pOSItIOn that the gnevor then had the nght to dIsplace under ArtIcle 204 1 not Ms Wlute's Both the Uruon and the Mirustry had no chOIce but to correct the ongmal mIscalculatIOn of Ms WhIte s CSD and support that correctIOn once It was dIscovered, even though It Impacted on Mr Lee s dIsplacement opporturuty 6 Accordmgly for all the reasons set forth above, I find no VIOlatIOn of the collectIve agreement. Although I sympatluze WIth the gnevor and can apprecIate the stress WhICh thrs SItuatIon as well as the other dIfficult clfcumstances m hIS personal hfe have caused rum, I conclude that the gnevances must be dIsmIssed. Dated at Toronto OntarIO thIS 11 th dav of March, 1999 rW~ H- >fbtr?m 0x Rind\ Hammer Abramsky, VicOarr 7