HomeMy WebLinkAbout2003-2703.Warden.04-04-05 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
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GSB# 2003-2703
UNION# 2003-0252-0045
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Warden) 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
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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
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
of gnevances and dIsputes arose ThIS IS another of the dIsputes that have ansen under the
MERC Memorandum of Settlement.
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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
Mr BlaIne Warden IS a CorrectIOnal Officer wIth the Niagara DetentIOn Centre He filed a
gnevance that resulted In a Memorandum of Settlement between the partIes He alleges that the
4
Employer has not complIed wIth the terms and provIsIOn of the agreement. ArtIcle 4 of the
Memorandum of Settlement stated
The employer agrees to penSIOn bndge Mr Warden by way of the folloWIng amounts
1 SIX (6) months pay In lIeu of notIce beIng used to reach Factor 80 date of
September 1 2003
2 Any credIts OWIng to Mr Warden wIll be used to take hIm to the date of
September 30 2003 Any remaInIng credIts wIll be paid out to the employee
3 LegIslated severance pay under ArtIcle 53 of the OPSEU CollectIve Agreement
wIll then be paid to the employee
4 EffectIve September 30 2003 Mr Warden wIll be elIgIble to receIve pensIOn
momes from the Ontano PublIc ServIce
It was Mr Warden's posItIOn that the Employer faIled to pay hIm properly He was paid five and
a half months of pay In lIeu of notIce and not SIX months He asked for the final two weeks pay
plus a further two weeks as a penalty for the vIOlatIOn.
It was the Employer's VIew that the agreement was paid In full ArtIcle 4 1 oblIged the Employer
to bndge to the gnevor's penSIOn date USIng hIS sIx-month notIce penod. ThIS was done In
accordance wIth the agreement.
It was common ground between the partIes that when the notIce penod IS used to bndge for
penSIOn purposes If the full SIX months are not reqUIred, any remaInIng notIce penod IS not paid
out. There IS nothIng In thIS Memorandum of Settlement to suggest that there was to be a
devIatIOn from that usual practIce Further the Employer complIed wIth the provIsIOns of ArtIcle
4 and utIlIzed the gnevor's notIce penod "to reach Factor 80 date of September 1 2003"
AccordIngly the gnevance IS dIsmIssed.
In Toronto thIS 5th day of Apnl, 2004