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HomeMy WebLinkAbout2000-0783.Dale et al.01-11-14 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#0783/00 1314/00 UNION# 00A454 00A516 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Dale et al) Grievor -and- The Crown In RIght of Ontano (Mimstry of Health and Long-Term Care) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE GRIEVOR Nelson Roland Counsel Ryder Wnght, Blair & Doyle BarrIsters & SOlICItorS FOR THE EMPLOYER Fateh SalIm Counsel Legal ServIce Branch Management Board Secretanat HEARING Oct. 22, 2001 AWARD On November 2, 2000 two gnevances were filed wIth the Mimstry of Health & Long Term Care, one from Gary Dale and one from Gary Lawrence Both contaIned the same attachment entItled "Group Gnevance" At Issue IS whether SIX addItIOnal gnevances filed by Mr Dale should be consolIdated wIth thIS "Group Gnevance " Facts The November 2,2000 gnevances ofMr Dale and Mr Lawrence read as follows Statement of Grievance We gneve that we have been or are In the process of beIng 1 ConstructIvely dIsmIssed from our Jobs, DISCnmInated agaInst contrary to but no exclusIve to ArtIcle 3 (No DISCnmInatIOn) of the CollectIve Agreement; Unfairly dIscIplIned, contrary to ArtIcle 2 (Management Rights) and ArtIcle 21 (DIscIplIne and DIsmIssal) of the CollectIve Agreement; and SubJ ected to defamatIOn of character by management. (see below) Settlement Desired We ask that management 1 Stop tryIng to dIsmIss us 2 Stop dISCnmInatIng agaInst us 3 Retract the unfair dIscIplIne 4 PublIcly retract negatIve comments made agaInst us, and 5 Compensate us for the paIn, suffenng and emotIOnal dIstress cause by our treatment. - 2 - Amendment to "statement of Gnevance" 6 We also gneve that management has breached the terms of our econdment agreement. Added Dec 1 2000 The SIX gnevances whIch the Umon seeks to consolIdate are as follows 1 July 3, 1998 gnevance - alleges that Mr Dale has been "harassed & dIscnmInated agaInst contrary to but not exclusIve to ArtIcle 3 of the collectIve agreement. I further gneve that I have been unfairly dIscIplIned contrary to ArtIcle 21 of the CollectIve Agreement." Mr Dale explaIned at the heanng that thIS gnevance Involves an e-maIl sent to hIm by hIS manager admomshIng hIm for an e-maIl he sent to all dIvIsIOn staff concermng an e- mall VIruS hoax. ThIS gnevance was referred by the Umon to arbItratIOn on September 8 1998 and was scheduled for heanng some tIme In late 1998 or early 1999 At that tIme, a number of other outstandIng gnevances relatIng to the March 1996 stnke were settled, but, accordIng to Mr Dale, thIS one was not settled. Thereafter the Umon tned to have thIS matter heard as part of the med-arbItratIOn process, but the Employer declIned on the basIs that It had been settled, or In any event, was not an actIve gnevance No addItIOnal attempts were made to schedule the matter for arbItratIOn because the gnevor had filed the November 2, 2000 gnevance and the gnevor felt that It would be appropnate to JOIn thIS one to that proceedIng. 2 January 11, 2001 gnevance - alleges that Mr Dale "was unfairly demed the posItIon In competItIon HL-47-6400" The gnevor alleges that he was demed an IntervIew and was scored low for a posItIOn of ProJect Manager because of hIS umon actIvItIes He asserts that shortly before thIS competItIOn he had been offered thIS posItIOn on a temporary basIs as part of a settlement - 3 - of an earlIer gnevance, but that offer was rescInded and the manager allegedly stated that there was "no way In hell" that the gnevor would get the Job 3 January 11, 2001 gnevance - alleges that Mr Dale was "beIng paid Incorrectly for the work I am dOIng, contrary to ArtIcle 7 of the CollectIve Agreement. " The gnevor explaIned that even though the work he was dOIng was that of an S 0 4 he was beIng paid at the SO 3 level He had been "red-cIrcled" from the SO 4 level, but there was stIll a salary dIfferentIal He acknowledged, however that the reclassIficatIOn of the S 0 senes resolved most of the pay dIspute because It was retroactIve to January 1 1999 but he asserts that there IS stIll compensatIOn owed to hIm from November and December 1998 4 June 27, 2001 gnevance - alleges that "the employer has acted In an arbItrary unfair dISCnmInatory and unreasonable manner and In bad faith and In contraventIOn of theIr own rules, by knowIngly submIttIng the wrong descnptIOn for my posItIOn to the Systems Officer ReclassIficatIOn" and that It was "done In retalIatIOn for my Umon actIvIty contrary to ArtIcle A of the collectIve agreement." The gnevor alleges that Instead of hIS actual Job descnptIOn beIng sent for purposes of reclassIficatIOn, the employer submItted a genenc one whIch dId not address the type of work he dId, resultIng In an Improper reclaSSIficatIOn, and that thIS was done In retalIatIOn for hIS umon actIvIty 5 August 16, 2001 gnevance - alleges that the employer has "harassed and dIscnmInated agaInst me and treated me In a demeamng and InsultIng fashIOn In publIc and that management have attempted to undermIne my role as an employee and as a umon steward, contrary to but not exclusIvely to ArtIcles 1,2,3 and 21 of the CollectIve Agreement. - 4 - 6 September 24, 2001 gnevance - alleges that "management have harassed & dIscnmInated agaInst me and treated me In a demeamng and InsultIng fashIOn In publIc and that management have attempted to undermIne my role as an employee and as a umon steward contrary but not exclusIvely to ArtIcles 1,2,3 & 21 of the CollectIve Agreement. It appears that neIther the August 16 2001 gnevance nor the September 24 2001 gnevance went through the Stage 2 meetIng step of the gnevance procedure, but they were referred to arbItratIOn thIS very day by the Umon. Arguments of the Parties 1 The Union The Umon contends that the SIX addItIOnal gnevances filed by Mr Dale are part and parcel of hIS November 2, 2000 gnevance and are further examples of the employer's mIstreatment of the gnevor because of hIS umon actIvItIes The Umon asserts that the employer's ammus agaInst Mr Dale and Mr Lawrence began after the 1996 stnke and contInues to the present. All of these matters, It asserts, should be heard together to get the "bIg pIcture" of the employer's actIOns, and should not be fragmented off In terms of the July 1998 gnevance the Umon submIts that It was tImely referred to arbItratIOn and that It has not sImply sat dormant In the Intenm It submIts that the Employer has not argued or demonstrated actual preJudIce, and because the matters Involve the same subJect matter as the November 2000 gnevance, It should be consolIdated. - 5 - The remaInIng gnevances, It asserts, also allege actIOns taken agaInst the gnevor because of hIS umon actIvItIes - the Job competItIOn, the pay Issue, the documents regardIng reclassIficatIOn and the specIfic IncIdents whIch led to the last two gnevances Each sItuatIOn, In ItS submIssIOn, was another attempt by the employer to dISCnmInate agaInst Mr Dale and are sImply vanatIOns of the same theme It submIts all of them should be heard as a whole Further the Umon contends that nothIng turns on the fact that the attachment to the November 2, 2000 gnevance IS entItled "Group Gnevance" It notes that both Mr Dale and Mr Lawrence filed IdentIcal gnevances and submIts that It does not matter In terms of consolIdatIOn whether they are, In realIty two IndIVIdual gnevances, or a group gnevance allegIng sImIlar Issues 2. The Employer The Employer contends that none of the SIX addItIOnal gnevances should be consolIdated wIth the November 2,2000 gnevance It asserts that the November 2, 2000 gnevance IS a "Group Gnevance" not an IndIVIdual gnevance, and yet all of the matters sought to be added Involve IndIVIdual gnevances ofMr Dale The Employer contends that the July 1998 gnevance IS untImely In that the Umon has not moved the matter forward SInce It was referred to arbItratIOn In September 1998 more than three years ago It submIts that the Employer had belIeved that the gnevance - 6 - had been abandoned and the passage of three years IS preJudICIal to the Employer It submIts that It should not only not be consolIdated, but should be dIsmIssed as well In terms of the Improper pay and reclassIficatIOn gnevances, the Employer submIts that the "pIth and substance" of those gnevances Involve the gnevor's classIficatIOn over whIch thIS board no longer has JunsdIctIOn. It contends that under AppendIx 7 "all complaInts and dIfferences InvolvIng allegatIOns of Improper Job classIficatIOn" must go to the JOInt System SubcommIttee USee), and that If there IS a dIspute about the posItIOn specIficatIOn sent to that body a complaInt should be brought before It, not here It further submIts that these gnevances do not meet the standard for consolIdatIOn set forth In the GSB' s rule and the case law In terms of the competItIOn gnevance, the Employer asserts that It would be best to deal wIth that matter separately as a competItIOn gnevance It also asserts that the gnevance does not meet the test for consolIdatIOn under the GSB's rules and the case law FInally In terms of the last two gnevances, the Employer submIts that the gnevor should not be allowed to bypass the Stage 2 level To allow consolIdatIOn, It argues would be to reward the gnevor for bypassIng the agreed-upon procedure - 7 - Decision A. Consolidation Except for the January 11 2001 (incorrect pay gnevance) I conclude that the addItIOnal gnevances of Mr Dale should be consolIdated wIth the November 2, 2000 gnevance The GSB's consolIdatIOn rule provIdes, In pertInent part, as follows WHERE ORDER MAYBE MADE Where two or more proceedIngs are pendIng before the Gnevance Settlement Board and It appears to the Gnevance Settlement Board that, (1) (a) they have a questIOn oflaw or fact In common, (b) the relIef claimed In them anses out of the same transactIOn or occurrence or (c) for any reasons an order ought to be made under thIS rule, the Gnevance Settlement Board may order that, (d) the proceedIngs be consolIdated, or heard at the same tIme or one ImmedIately after the other or (e) any of the proceedIngs be, (i) stayed untIl after the determInatIOn of any other of them. Under thIS rule, there IS broad dIscretIOn to consolIdate cases, not only when there are questIOns of law or fact In common or the relIef claimed anses out of the same transactIOn or occurrence, but "for any reasons an order ought to be made under thIS rule" - 8 - Based on the submIssIOns made, It appears that the gnevances sought to be added by the Umon Involve the questIOn of whether the employer's actIOns toward Mr Dale were the result of the gnevor's umon actIvItIes The allegatIOn IS that they are all "part and parcel" of the same course of conduct. As such, although the gnevances allege dIscreet matters, the Issue of the employer's motIve IS the same In each case Thus there IS a "questIOn of law or fact" In common, whIch satIsfies the GSB's rule regardIng consolIdatIOn. GIven the nature of the allegatIOns, faIlure to consolIdate mIght well result In much of the same eVIdence havIng to be repeated In each case For thIS reason as well consolIdatIOn IS appropnate In terms of the tImelIness of the July 1998 gnevance the submIssIOns ofMr Dale were that the matter was scheduled for heanng In eIther late 1998 or early 1999 at whIch tIme attempts were made to resolve It. Although that gnevance was not resolved others were, and the Umon then attempted to have the matter proceed through the med-arb process wIthout success These submIssIOns IndIcate that the gnevance dId not sImply lIe dormant for the last three years, even though the Employer belIeved that the gnevance had been abandoned. There was also was no specIfic assertIOn of preJudIce by the Employer GIven the dIrect relatIOnshIp between the Issues raised In the July 1998 gnevance and the November 2, 2000 gnevance, I find that the July 1998 gnevance should be - 9 - consolIdated. The Employer at the heanng, however may raise Its latches argument and provIde eVIdence as to why It belIeved that the gnevance had been abandoned by the Umon as well as eVIdence regardIng actual preJudIce There may also be Issue regardIng remedy should the gnevance succeed, because of the delay In terms of the January 11 2001 (competItIOn) gnevance, I find that the gnevor's submIssIOns concermng thIS gnevance - that he was demed an IntervIew and scored low because of hIS umon actIvItIes - renders It dIrectly related to the allegatIOns raised In the November 2000 gnevance Although, normally a Job competItIOn gnevance stands alone the nature of the allegatIOns raised here render It appropnate to consolIdate wIth the November 2,2000 gnevance In terms of the January 11 2001 (incorrect pay) gnevance, I conclude that thIS matter should not be consolIdated and should, In fact, be dIsmIssed. The reason for that conclusIOn IS that the gnevor acknowledged that the S 0 reclassIficatIOn resolved the pay Issue except as It pertaIns to pay datIng from November and December 1998 I conclude, therefore that even If thIS gnevance were to succeed, the Board would have no JunsdIctIOn to provIde a monetary remedy datIng back to 1998 gIven that the gnevance was filed In January 2001 AccordIngly the matter has been resolved by the SO reclassIficatIOn. It IS therefore moot and should be dIsmIssed. In terms of the gnevance concernIng the documents submItted by the employer for the S 0 reclassIficatIOn, I conclude that thIS matter IS, In essence, a claim regardIng - 10 - ArtIcle 3 of the collectIve agreement, and IS not a reclaSSIficatIOn Issue that should be before the JSSC The gnevance does not seek the gnevor's reclassIficatIOn, It seeks an order requmng the employer to submIt hIS correct Job descnptIOn to the JSSC AccordIngly It raises the same Issue raised In the November 2,2000 gnevance FInally In terms of the last two gnevances, I conclude that they should be consolIdated even though no Stage 2 has been held. The Umon, as of today has referred the matters to the GSB as the Umon IS entItled to do under ArtIcle 22 4 of the collectIve agreement. Although thIS approach - proceedIng dIrectly to the board wIthout a Stage 2 meetIng or response - IS not a desIrable one, It IS a permISSIble one under the partIes' collectIve agreement. GIven the sImIlanty of the Issues raised In these two gnevances and the November 2,2000 gnevance I conclude that consolIdatIOn IS appropnate In so rulIng, I note that the two November 2, 2000 gnevances currently before thIS board are entItled "Group Gnevance" In my VIew the Issue of consolIdatIOn does not turn on that fact. Rather consolIdatIOn turns on the nature and substance of the matters In dIspute and for the reasons stated above, I conclude that the addItIOnal gnevances, except for the January 11 2001 (incorrect pay) gnevance, should be consolIdated. B. Particulars The Employer has requested wntten partIculars from the Umon concermng the November 2, 2000 gnevance as well as any gnevances whIch are consolIdated wIth It, along wIth all supportIng documents The Employer IS entItled to wntten partIculars and - 11 - supportIng documents, and I order counsel for the Umon to comply no later than December 31 2001 ThIS should provIde ample tIme for the Employer for reVIew pnor to our next day of heanng. Conclusion AccordIngly for the reasons set forth above, I order as follows 1 All of the gnevances, except for the January 11 2001 (incorrect pay) gnevance, are hereby consolIdated wIth the November 2,2000 gnevances 2 The January 11 2001 (incorrect pay) gnevance IS dIsmIssed. 3 Counsel for the Umon IS ordered to provIde wntten partIculars as to the November 2, 2000 gnevances and the other gnevances whIch have been consolIdated wIth It, along wIth copIes of supportIng documents, to counsel for the Employer by December 31 2001 Dated at Toronto thIS 14th day of November 2001 1-I.1.hnnvs'o RandI H. Abramsky Vice-Chair - 12 -