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HomeMy WebLinkAbout2003-3774.Union Grievance.04-03-12 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# 2003-3774 UNION# 2004-0999-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown m RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION Stephen GIles Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Greg GledhIll Staff RelatIOns Officer Mimstry of Commumty Safety and CorrectIOnal ServIces HEARING October 30 2003 2 DeCISIon From March 13th to May 6th 2002, the Umon and Its members were engaged m a legal stnke Pnor to the begmmng of thIS actIOn the partIes had negotIated a Memorandum of Agreement regardmg the condItIOns of work m the event of a stnke or a lockout (heremafter referred to as the "CondItIOns Document") In that agreement It was provIded that "all collectIve agreement provIsIOns apply to essentIal and emergency workers wIthout mterruptIOn, save only that AppendIx 9 and AppendIx 18 shall not apply" The CondItIOns Document also expressly provIded the Umon contmued nght under ArtIcle 22 13 of the CollectIve Agreement to file Umon gnevances on behalf of employees who were performmg essentIal and emergency servIces Dunng the course of the stnke approxImately 5000 gnevances were filed by Umon members across the Ontano PublIc ServIce As part of the negotiatIOns that ended the work stoppage, the partIes negotIated a Return to Work Protocol That agreement contemplated vanous provIsIOns mcludmg how contmuous servIce, pensIOn, credIts and semonty would be affected as a result of the stnke AddItIOnally the partIes addressed other Issues such as repnsal, dIscIplIne and the mechamcs of the actual return of the bargammg umt members to the workplace It was further agreed these "stnke related" gnevances would be treated separately and lItIgated m an efficIent manner To that end, on June 27 2002, OPSEU and the Mimstry of PublIc Safety and Secunty (heremafter referred to as "MPSS") met to dISCUSS a process m order to resolve the outstandmg stnke related gnevances Followmg that meetmg a letter dated October 11 2002, confirmed the agreement that: In order to deal wIth the stnke related gnevances m a proactIve, expedItIOus and effectIve manner the partIes have agreed to the followmg . No stage 2 heanngs . No filIng of stnke related gnevances at GSB untIl agreed otherwIse . WaIvmg of tIme lImIts . RespectIvely assIgmng dedIcated resources to deal wIth the volume ApproxImately 4500 gnevances were filed by members employed by the MPSS The partIes agreed to a DIspute ResolutIOn Protocol for MPSS that mcluded Terms of Reference It IS not 3 necessary to provIde all of that agreement. It IS sufficIent to say that the partIes agreed to an expedIted process wherem each party provIdes to the Vice Chair wntten submIssIOns whIch mclude the facts, provIsIOns of the CollectIve Agreement, the EssentIal ServIces Agreement, legIslatIOn or any other document alleged to have been vIOlated, arguments and requested remedy Oral eVIdence would not be called although It was allowed that I could request further clanficatIOn If necessary In the event of any confusIOn regardmg the facts of the matter or the underlymg ratIOnale I wIll dIrect the partIes to speak agam wIth theIr pnncIples NotwIthstandmg that some gnevors mIght wIsh to attend and provIde oral eVIdence thIS process has been efficIent and has allowed for a thorough canvassmg of the facts and arguments wIth respect to the vanous Issues Other procedural Issues were addressed to ensure that gnevances would be dealt wIth m a tImely fashIOn. The Terms of Reference also provIded that I would rem am seIzed of all outstandmg stnke related gnevances filed by members workmg m MPSS ThIS process was developed m consIderatIOn of ArtIcle 22 16.2 of the collectIve agreement. It 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 determme the gnevance by arbItratIOn. When determmmg 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 succmct decIsIOn wIthm five (5) days after completmg proceedmgs, unless the partIes agree otherwIse The maJonty of the 4500 gnevances dealt wIth one of the followmg Issues . An allegatIOn of delayed retroactIve payments WIth a request for mterest owmg; . An allegatIOn of faIlure to pay appropnate holIday pay for Good Fnday and Easter Monday . EntItlement to call back; . On-Call and Standby Issues for emergency workers Those matters were separately lItIgated at the Gnevance Settlement Board and decIsIOns eIther have been Issued or are pendmg. In accordance wIth the agreement of the partIes a number of heanng days were scheduled to hear and determme the outstandmg stnke related gnevances Many of the gnevances have been resolved through medIatIOn. ThIS IS another decIsIOn dealIng wIth those matters 4 ElaIne Foley IS a CorrectIOnal Officer at the Vamer Centre Pnor to the stnke Ms Foley was workIng In accordance wIth an accommodatIOn agreement. It was agreed that Ms Foley would not work longer than eIght hours In the 24 hour penod. On March 16 2002, Ms Foley completed workIng an eIght hour shIft. However there was no one from the bargaInIng umt avaIlable to replace her at the conclusIOn of her shIft. It was the gnevor's posItIOn that the faIlure to relIeve her at the conclusIOn of her ShIft was done wIth malIcIOus Intent and damages should be paid. It was the Employer's posItIOn that the ShIft In questIOn was early In the stnke and It had not yet establIshed an alternatIve when faced wIth a faIlure of other bargaInIng umt members to report for work as scheduled. There was no eVIdence of malIcIOus Intent and no eVIdence of harm done to Ms Foley AccordIngly the gnevance IS demed. Dated In Toronto thIS lih day of March, 2004 ~ . I ~ .' 'II; . "I Vice Chair