Loading...
HomeMy WebLinkAbout2003-0828.Lake.05-06-13 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# 2003-0828 2003-0829 UNION# 2003-0582-0077 2003-0582-0078 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Lake) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty 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 May 2 & 30 and June 8 2005 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 concernIng 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 I" (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 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 FehcIty Bnggs, VIce Chair of the Gnevance Settlement Board wIll be seIzed wIth resolvmg any dIsputes that anse from the llnplementatlOn of tlllS 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 4 smaller It IS for these reasons that the process I have outlIned IS appropnate In these CIrcumstances Rob Lake IS a CorrectIOnal Officer at Toronto East DetentIOn Centre wIth a ContInuous ServIce Date of September 21 1998 In May of 2003 he filed two gnevances that alleged a vIOlatIOn of ArtIcles 2, 3 20 and AppendIx 13 of the CollectIve Agreement. By way of remedy he requested an ImmedIate transfer to C.E C C 4 weeks of compensatIng tIme to be used at hIS dIscretIOn, $10000 for paIn and suffenng; and ImmedIate" Use of Force" Instructor traInIng. As IS apparent from the above, the gnevor's posItIOn IS that he should be permanently assIgned to Central East CorrectIOnal Centre Some InformatIOn by way of background would be useful Mr Lake became a classIfied CorrectIOnal Officer at the WhItby JaIl as the result of a Job competItIOn, effectIve May 25 2001 On October 22 2002 he receIved a letter from the Employee TransItIOn Umt InformIng hIm of hIS AppendIx 13 nghts In that letter the folloWIng was stated N OtI ce SIgmng thIS document IndIcates that you are AcceptIng or DeclImng an assIgnment to Central East CorrectIOnal Centre, which may be available to you on the basis of seniority ThIS document IS final and bIndIng upon receIpt by the Employer If you do not respond to thIS letter by 4.30 pm on October 29, 2002, or the letter IS returned Incomplete or unsIgned, you wIll be deemed to have declIned AppendIx 13 nghts The Employer consIders ItS oblIgatIOns In accordance wIth Part 2, SectIOn A of the Memorandum of Settlement to be fulfilled regardIng AppendIx 13 entItlements (boldIng mIne) In accordance wIth AppendIx 13 he IndIcated on October 24 2002 that he would accept an assIgnment to C.E C C On November 5 2002 he receIved a letter that stated, In part, the folloWIng ThIS wIll confirm receIpt of your response to my letter dated October 22,2002, IndIcatIng your Interest In an assIgnment to CECC As you are aware, the assIgnment process was based on semonty Unfortunately I must advIse you that based on semonty you have not been IdentIfied to be assIgned to CECC You may benefit from other provIsIOn of the MERC 3 Agreement and/or the CollectIve Agreement, IncludIng ArtIcle 20 In January of 2003 Mr Lake was Informed by letter that the WhItby JaIl was decommIssIOmng on January 20 2003 The letter stated that untIl a common surplus date was establIshed he would 5 be temporanly assIgned to Millbrook CorrectIOnal Centre effectIve January 20 2003 wIth appropnate reImbursement of mIleage and travel tIme Apnl 15 2003 was the common surplus date and a letter was Issued to Mr Lake askIng hIm to IndIcate wIthIn five days whether he wanted to take PaY-In-lIeu-ofNotIce or Redeployment. Mr Lake elected Redeployment. It states at ArtIcle 20 5 1 An employee who has receIved notIce of lay-off In accordance wIth thIS artIcle shall be assIgned to a posItIOn that becomes vacant In hIS or her mImstry dunng hIS or her notIce penod provIded that (b) the vacant posItIOn IS WIthIn a 40 kIlometer radIUs of hIS or her headquarters On May 1 2003 Mr Lake was sent a letter assIgmng hIm, effectIve May 5 2003 to a General Duty Officer PosItIOn at the Toronto East DetentIOn Centre The Toronto East DetentIOn Centre IS WIthIn 40 kIlometers of the WhItby JaIl WithIn two weeks the Instant gnevances were filed. After hIS assIgnment to the Toronto East DetentIOn Centre, Mr Lake was absent from the workplace after "seekIng medIcal assIstance" In October of 2003 the partIes negotIated an agreement that provIded Mr Lake a temporary assIgnment to C.E C C from October 27 2003 up to and IncludIng January 27 2004 ThIS agreement was later extended for Mr Lake untIl March 26 2004 at the request of C.E C C and the Umon. ThIS latter extensIOn brought thIS assIgnment up to SIX months In duratIOn whIch was consIstent WIth other temporary assIgnments at C.E C C Subsequently an addItIOnal extensIOn was granted. At the heanng the Umon provIded a letter dated February 10 2005 from the gnevor that set out a statement of the facts AccordIng to Mr Lake he attended a meetIng whereIn "Mr Stephenson, Eastern RegIOnal DIrector told me and others, whIle at WhItby that we would be gOIng to LIndsay when the facIlIty was ready" Further he then bought a house In Peterborough "on the strength of the InformatIOn from Mr Stephenson" Once the Employer was made aware of that speCIfic allegatIOn the Employer made enqumes of Mr Stephenson who demed the gnevor's assertIOn. 6 I am of the VIew that these gnevances must fall I can find no vIOlatIOn of ArtIcles 2, 3 20 or AppendIx 13 WhIle I apprecIate that there IS a dIscrepancy between the gnevor's recall of what was said at a meetIng and the Employer's recall, I do not have to make any assessment of credIbIlIty because the documents are very clear The gnevor was Informed In wntIng of the process and what he could and could not expect or rely upon. He was not assured that he would be gOIng to CECC Indeed, he was specIfically told that the posItIOn "may" be avaIlable to hIm because the assIgnments would be executed on the basIs of semonty He was gIven thIS InfOrmatIOn In the fall of 2002 yet gneved some SIX months later The process set out above In thIS decIsIOn that was establIshed for the lItIgatIOn of transItIOn gnevances has served these partIes well Dozens of gnevances have been fully addressed In an efficIent and expedItIOus matter Generally speakIng thIS must be seen to be laudable but wIthout doubt thIS process has been partIcularly useful to these partIes gIven the ongOIng changes that have taken place In the workplace In thIS hybnd process It occasIOnally happens that there IS a fundamental dIspute of fact. As IS apparent from the above, thIS was one of those Instances AccordIngly I asked the Umon to proVIde further eVIdence regardIng the alleged undertakIng The Umon made Inqumes of the gnevor and further InformatIOn has not been forthcomIng. The partIes have been careful to maIntaIn flexIbIlIty wIthIn thIS process However at some pOInt there has to be a lImIt on the opportumtIes afforded to eIther party to proVIde the facts necessary to determIne the matter at hand For those reasons, hIS gnevance IS demed. Vice-Chair