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HomeMy WebLinkAbout2002-2100.Finch.04-07-19 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-2100 UNION# 2002-0108-0048 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (FInch) Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION Scott Andrews Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Greg GledhIll Staff RelatIOns Officer Mimstry of Commumty Safety and CorrectIOnal ServIces HEARING March 16 2004 2 DeCISIon In September of 1996 the Mimstry of CorrectIOnal ServIces notIfied the Umon and employees at a number of provIncIal correctIOnal InstItutIOns that theIr facIlItIes would be closed and/or restructured over the next few years On June 6 2000 and June 29 2000 the Umon filed polIcy and IndIVIdual gnevances that alleged vanous breaches of the collectIve agreement IncludIng artIcle 6 and artIcle 31 15 as well as gnevances relatIng to the fillIng of correctIOnal officer posItIOns In response to these gnevances the partIes entered Into dIscussIOns and ultImately agreed upon two Memoranda of Settlement concermng the applIcatIOn of the collectIve agreement dunng the "first phase of the Mimstry's transItIOn" One memorandum, dated May 3 2000 (hereInafter referred to as "MERC 1" (Mimstry Employment RelatIOns CommIttee)) outlIned condItIOns for the correctIOnal officers whIle the second, dated July 19 2001 (hereInafter referred to as "MERC 2") provIded for the non-correctIOnal officer staff Both agreements were subject to ratIficatIOn by respectIve pnncIples and settled all of the gnevances IdentIfied In the related MERC appendIces, filed up to that pOInt In tIme The partIes contInued to negotIate and agree upon further condItIOns regardIng the transItIOn matters MERC 3 was sIgned by the partIes on February 25 2002 WhIle It was agreed In each case that the settlements were "wIthout prejUdICe or precedent to posItIOns eIther the umon or the employer may take on the same Issues In future dIscussIOns" the partIes recogmzed that dIsputes mIght anse regardIng the ImplementatIOn of the memoranda. AccordIngly they agreed, at Part G paragraph 8 The partIes agree that they wIll request that FelIcIty Bnggs, Vice Chair of the Gnevance Settlement Board wIll be seIzed wIth resolvIng any dIsputes that anse from the ImplementatIOn of thIS agreement. It IS thIS agreement that provIdes me wIth the jUnSdIctIOn to resolve the outstandIng matters Both MERC 1 and MERC 2 are lengthy and comprehensIve documents that provIde for the IdentIficatIOn of vacanCIes and posItIOns and the procedure for fillIng those posItIOns as they become avaIlable throughout vanous phases of the restructunng. GIven the complexIty and SIze of the task of restructunng and decommIssIOmng of InstItutIOns, It IS not surpnSIng that a number 3 of gnevances and dIsputes arose ThIS IS another of the dIsputes that have ansen under the MERC Memorandum of Settlement. When I was ImtIally InvIted to hear theses transItIOn dIsputes, the partIes agreed that process to be followed for the determInatIOn of these matters would be vIrtually IdentIcal to that found In ArtIcle 22 16.2 whIch states The mediator/arbItrator shall endeavour to assIst the partIes to settle the gnevance by medIatIOn. If the partIes are unable to settle the gnevance by medIatIOn, the medIator/arbItrator shall determIne the gnevance by arbItratIOn. When determInIng the gnevance by arbItratIOn, the medIator/arbItrator may lImIt the nature and extent of the eVIdence and may Impose such condItIOns as he or she consIders appropnate The medIator/arbItrator shall gIve a SUCCInct decIsIOn wIthIn five (5) days after completIng proceedIngs, unless the partIes agree otherwIse The transItIOn commIttee has dealt wIth dozens of gnevances and complaInts pnor to the medIatIOn/arbItratIOn process There have been many other gnevances and Issues raised before me that I have eIther assIsted the partIes to resolve or arbItrated. However there are stIll a large number that have yet to be dealt wIth. It IS because of the vast numbers of gnevances that I have decIded, In accordance wIth my jUnSdIctIOn to so determIne that gnevances are to be presented by way of each party presentIng a statement of the facts wIth accompanYIng submIssIOns NotwIthstandIng that some gnevors mIght wIsh to attend and provIde oral eVIdence, to date, thIS process has been efficIent and has allowed the partIes to remaIn relatIvely current wIth dIsputes that anse from the contInuIng transItIOn process Not surpnsIngly In a few Instances there has been some confusIOn about the certaIn facts or sImply InSUfficIent detaIl has been provIded. On those occaSIOns I have dIrected the partIes to speak agaIn wIth theIr pnncIples to ascertaIn the facts or the ratIOnale behInd the partIcular outstandIng matter In each case thIS has been done to my satIsfactIOn. It IS essentIal In thIS process to aVOId accumulatIng a backlog of dIsputes The task of resolvIng these Issues In a tImely fashIOn was, from the outset, a formIdable one With ongOIng changes In Mimstenal boundanes and other orgamzatIOnal alteratIOns, the task has lately become larger not smaller It IS for these reasons that the process I have outlIned IS appropnate In these CIrcumstances 4 Jane FInch was a CorrectIOnal Officer at ElgIn Middlesex DetentIOn Centre who filed a gnevance allegIng that she has been "constructIvely dIsmIssed" In her statement of the facts, the gnevor alleged that she was forced to resIgn "under duress" and that management engaged In "a contInUatIOn of harassment and a sIgmficantly pOIsoned work envIronment" It was the gnevor's VIew that her supenntendent "took advantage" of her by presentIng her wIth a surplus package "knowIng that no surpluses were to have taken place" Ms FInch alleged that the supenntendent knew that there was "always" a posItIOn for her suggestIng that the possIbIlIty of surpluSIng was "just an employee number change" or In other words, merely an admInIstratIve exerCIse Ms FInch said that she repeatedly asked If she elected to stay wIthIn the Mimstry was It possIble for her to remaIn at EMDC She was also told that there were no vacanCIes and so there were no posItIOns for her She was told that any vacanCIes that were about to open were beIng held for other CorrectIOnal Officers from a cloSIng facIlIty The gnevor was of the VIew that all of thIS was merely a ruse to have her resIgn her employment. AccordIng to the documentatIOn before me, the gnevor receIved a letter dated March 4 2002, InformIng her that she was beIng dIsplaced by a more semor employee, a RecreatIOnal Officer who was qualIfied to perform the dutIes of a CorrectIOnal Officer As Ms FInch was on sIck leave at that tIme she was not actually gIven notIce of surplus untIl August 16 2002 when she returned to work. In accordance wIth usual practIce, she was Informed of vanous optIOns In that letter AddItIOnally there was a meetIng on August 16 2002 attended by the gnevor whereIn the vanous optIOns were explaIned. As agreed In the MERC 1 agreement, CorrectIOnal Officers from EMDC were entItled to go to posItIOns at Bluewater In accordance wIth semonty However the gnevor elected to remaIn an employee at EMDC The Umon and the Employer agreed that at thIS tIme It was unclear what the actual correctIOnal officer complement would be at EMDC Further It was the practIce of the transItIOn advIsors not to dIsclose potentIal vacanCIes untIl actual matches were achIeved. They had determIned that to 5 do so mIght result In sIgmficant dIsruptIOn to any employees who chose to take theIr chances on possIble vacanCIes I asked the Umon to speak wIth Mr Mills and obtaIn hIS recall of thIS sItuatIOn. AccordIng to the Umon Mr Mills said that he attended the meetIng of August 16 2003 wIth the gnevor and spoke to Mr Barry Scanlon shortly after the meetIng on behalf of Ms FInch. Mr Scanlon relayed to Mr Mills that as a correctIOnal officer had very recently expIred, a vacancy would probably anse Mr Mills said that he passed thIS InformatIOn to Ms FInch the same day A meetIng was held on August 23 2002 and dunng the course of thIS meetIng Ms FInch returns the letter electIng to take a severance package AccordIng to the gnevor Immediately folloWIng thIS meetIng she heard from a local umon officIal, Gary Mills, that "a surplus was not supposed to have happened and Instead It was merely an employee number change that was reqUIred as a posItIOn was avaIlable" for her at all relevant tImes In the statement of facts set out by Ms Finch, It was alleged that she had been harassed and subject to a pOIsoned work envIronment datIng back to the summer of 1999 That pattern of behavIOr contInued throughout her employment and contInued even after August 23 2002 After reVIeWIng all of the eVIdence and the submIssIOns I must dIsmIss the gnevance The gnevor has alleged that she was "constructIvely dIsmIssed" and that her termInatIOn was the cUlmInatIOn of harassment that had gone on for some consIderable penod of tIme I dIsagree The gnevor was gIven notIce of surplus In accordance wIth an agreed upon document that governs the decommIssIOmng and restructunng of numerous facIlItIes throughout the ProVInce The notIce gIven, the meetIngs held and the InformatIOn provIded to thIS gnevor was no more and no less than was provIded to many other surplussed employees She was not sIngled out nor was she treated dIfferently regardIng her surplus notIce accordIng to the eVIdence before me Ms Finch seems to suggest that she was mIsled about vacanCIes and not gIven InformatIOn about even possIble vacanCIes untIl after she had submItted her agreement to sever her employment. ThIS IS not congruent WIth the other eVIdence before me Even IfMs FInch's recall was accurate, she was told of a potentIal vacancy wIthIn an hour of her notIce beIng gIven. She made no 6 attempt to rescInd the notIce and she dId not file a gnevance In thIS regard untIl many weeks later For those reasons, the gnevance IS dIsmIssed. n Toronto thIS 19th day of July 2004 . S