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HomeMy WebLinkAbout2000-1200.Ferraro.02-07-17 Decision ~M~ om~o EMPLOYES 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# 1200/00 UNION# 00B376 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (F erraro ) Grievor -and- The Crown In RIght of Ontano (The Mimstry ofCommumty FamIly and ChIldren's ServIces) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Ed Holmes and John BrewIn Counsel Ryder Wnght Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Stephen Patterson Semor Counsel Legal ServIces Branch Management Board Secretanat HEARING June 3 2002 2 I was appoInted to chair a heanng Into two gnevances that arose wIthIn the Mimstry of Commumty and SocIal ServIces, specIfically WIthIn the Ontano DIsabIlIty Support Program The first gnevance, dated July 17 2000 alleges a vIOlatIOn of the collectIve agreement In that ClIent ServIce RepresentatIves (CSR) were beIng assIgned IntervIeWIng dutIes contrary to the Job specIficatIOns for the posItIOn. The second gnevance dated August 1 2001 alleges the Employer has vIOlated the collectIve agreement by transferrIng many Income Support SpecIalIsts (ISS) functIOns to other classIficatIOns, by transferrIng Income Support Clerk dutIes to CSR's and by ImpOSIng ngId schedulIng upon the ISS's that was not reqUIred of other employees The first gnevance asked for an order that the CSR's cease these IntervIeWIng dutIes, the second that the Job dutIes be assIgned consIstent WIth the Job specIficatIOns and that the ISS's have more flexIbIlIty In theIr schedulIng. The first day of heanng was In August of 2001 and dealt maInly wIth productIOn of documents and procedure We then reconvened on September 28 2001 January 23 and 24th 2002 and all three days were spent In heanng eVIdence On the fourth day June 3 2002, the Employer raised a motIOn that these two gnevances be consolIdated wIth another gnevance (GSB # 0588/01) on the grounds that all of these gnevances raise common Issues of fact and law and should be heard together That gnevance, dated August 1 2002, stated as follows DespIte contInued growth of the ODSP Program and despIte numerous Health & Safety gnevances CItIng excessIve workload affectIng workers Health & Safety the employer contInues to operate the ODSP Program wIth mImmal staffing. The gnevance asked for the folloWIng as redress That partIes reopen terms of reference for Health & Safety/Workload CommIttee That employer acknowledge constant growth of the ODSP Program and make correspondIng Increases to staffing levels Mr Patterson, for the Employer took the posItIOn that, when these two matters first came on for schedulIng, on the face of the gnevances and In lIght of the correspondence between the partIes over productIOn of documents, there dId not seem to be a strong enough connectIOn to consIder a motIOn to consolIdate However over tIme, It became clear that In both cases the Umon Intended to rely on a report entItled Workload, Work OrgamzatIOn and Health Outcomes The Ontano DIsabIlIty Support Program, prepared by Wayne Lewchuck, the DIrector of Labour StudIes at McMaster UmversIty and dated January 31 2002 That report deals wIth Issues of the orgamzatIOn of the workplace, IncludIng who does what and how traInIng of staff, support avaIlable for staff and general staff dIssatIsfactIOn. ThIS Board has heard eVIdence of those same Issues In the case before It. The Employer wIll have to answer that eVIdence wIth eVIdence of ItS own concernIng the InCeptIOn of the Program, the ratIOnale for the decIsIOns It made then and now the fundIng for the program etc It wIll have to adduce that eVIdence In both 3 heanngs, whIch, wIll be costly and IneffiCIent. For that reason the heanng Into these two gnevances ought to be consolIdated. Mr John BrewIn IS representIng the Umon on Gnevance # 0588/01 (the BrewIn gnevance) It was hIS posItIOn that these cases Involve dIStInCt Issues of fact and law whIch should be dealt wIth separately The gnevance #0588/01 alleges a vIOlatIOn of ArtIcle 9 1 the Health and Safety provIsIOns of the collectIve agreement. WhIle the allegatIOn IS that the breach Includes understaffing and Inadequate traInIng, the Umon IS not askIng who IS dOIng the work and whether that work IS consIstent WIth any Job classIficatIOns WhIle the report the Umon Intends to rely on does reqUIre an understandIng of the ODSP whIch wIll reqUIre eVIdence of the operatIOn of the program, that eVIdence wIll be lImIted to concerns about the health and safety of the employees AddItIOnal concerns about the Impact of the alleged lack traInIng and control on the health and safety Issues are sImIlarly lImIted. These are not the Issues In the gnevance before you. Mr Ed Holmes IS counsel for the gnevance that IS presently before me (the Holmes gnevance) He asked the Board to reVIew the gnevances carefully The matters raised In those gnevances are substantIally dIfferent than the one Mr BrewIn IS presentIng. The one before thIS Board raises no health and safety matters and, had the Umon sought to broaden the gnevance to Include them, the Employer would have no doubt obJected. We have heard the eVIdence of three wItness and none of them have expressed the concerns raised In the BrewIn gnevance Where there were references to the hIStOry of the ODSP traInIng and health and safety concerns, they were not pursued by Mr Holmes or the Employer because they were not part of the Umon's case They were raised tangentIally In support of the allegatIOns regardIng work assIgnments The Umon IS not seekIng any of the remedIes the other gnevance has requested, IncludIng health and safety relIef Ours are lImIted to a declaratIOn and cease and desIst order DECISION There IS no dIspute about the GSB Junsprudence concernIng the consolIdatIOn of gnevances The partIes provIded me wIth past GSB decIsIOns settIng out the Board's practIce note from 1986 whIch contInues to be recogmzed as the appropnate test (FournIer and Mimstry of TransportatIOn, GSB # 1530/93 and OPSEU and Management Board, GSB # 1526/91 1294/92) That practIce note states 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, (a) they have a questIOn of law or fact In common (b) the relIef claimed In them anses out of the same transactIOn or occurrence or senes of transactIOns or occurrences or (c) for any other reason an order ought to be made under thIS rule, 4 the Gnevance Settlement Board may order that, (d) the proceedIngs be consolIdated or heard at the same tIme or one ImmedIately after the other (e) any of the proceedIngs be (i) stayed untIl after the determInatIOn of any other of them In the order the Gnevance Settlement Board may gIve such dIrectIOns as are Just to aVOId unnecessary costs or delay and, for that purpose, the Gnevance Settlement Board may dIspense wIth servIce of a notIce or lIstIng for heanng and abndge the tIme for placIng a gnevance on the heanng lIst. AddItIOnal ratIOnal for an order to consolIdate IS found In SmIth and Mimstry of CorrectIOnal ServIces GSB # 545/94 et al where the Board stated There are a number of other reasons In support of thIS decIsIOn The cases are not only factually related, but both gnevors wIll be pnncIpal wItnesses In both gnevances DIfferent findIngs of fact wIll be aVOIded as a result of our consolIdatIOns order Moreover thIS order wIll save the publIc and the partIes money and wIll contnbute to the orderly and efficIent dISposItIOn of both gnevances FInally the absence of preJudIce to a party wIll weIgh In favour of an order ApplYIng those factors to the case before me I am not persuaded that an order to consolIdate these gnevances IS appropnate In these CIrcumstances In the first Instance, these gnevances raise very dIStInCt allegatIOns that, If related, only tangentIally touch on the same facts I come to that conclusIOn based on the eVIdence I have already heard In thIS case As stated before, we have had three days of eVIdence none of whIch raised any of the Issues found In the BrewIn gnevance WhIle a lack of traInIng IS part of the Umon's case In the Holmes gnevance, It only raised the Issue as an example of the Incorrect assIgnment of dutIes, not the Issue of whether the lack of traInIng created a health and safety hazard. WhIle there was some eVIdence about the way In whIch the ODSP IS operated, agaIn It only arose In relatIOn to the assIgnment of work WIthIn the Job classIficatIOns before me It seems to me that whIle there mIght be an overlap In eVIdence In some areas, the eVIdence that wIll be adduced In the BrewIn gnevance wIll, of necessIty Involve areas of the ODSP that thIS Board wIll not need to hear In the course of the Holmes gnevance There IS no concern regardIng InCOnsIstent findIngs between the Board that wIll hear the BrewIn gnevance and thIS Board because we wIll be consIdenng eVIdence and argument on dIfferent aspects of the ODSP and awardIng, If necessary dIStInCt and specIfic remedIes If I were to grant the Employer's motIOn and consolIdate these gnevances, I would have to allow the Umon to recall the three wItnesses from the Holmes gnevance to speak to the 5 Issues raised In the BrewIn gnevance That would delay the proceedIngs, result In addItIOnal costs and complIcate the resolutIOn of thIS IndIVIdual gnevance In conclusIOn, I am not convInced that these gnevances Involve sufficIently sImIlar questIOns of law and fact or claims for relIef to warrant a consolIdatIOn order The Employer's motIOn IS demed. The partIes are to contact the RegIstrar for contInUatIOn dates In the Holmes matter Dated at Toronto thIS 1 ih day of July 2002 ~ . . . .. . .. . .. .. :" 1>- . Loretta Mikus, Vice-Chair