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HomeMy WebLinkAbout2003-3977.Wilkie.04-12-14 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# 2003-3977 UNION# 2003-0368-0023 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Wilkie) Union - 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 October 29 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 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. 3 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 Gerald Wilkie IS a CorrectIOnal Officer at Central East CorrectIOnal Centre He filed a gnevance assertIng that he should have been paid relocatIOn costs Further he alleged that he 4 was treated In a dISCnmInatory fashIOn because a number of hIS co-workers were paid those momes The gnevor was a CorrectIOnal Officer at the Barne JaIl when he and hIS co-workers were provIded an opportumty to "opt In" or "opt out" of an RFP wIth the Central North CorrectIOnal Centre In Penetang. Employees who chose to "opt In" understood that thIS electIOn meant that they mIght be offered a posItIOn WIth CNCC An offer of employment was not a certaInty Mr Wilkie elected to "opt In" On thIS pOInt, It was the gnevor's posItIOn that at the tIme of the second electIOn the CNCC should have made known to all how many employees they would be hmng If that InformatIOn had been provIded, the gnevor mIght have made dIfferent chOIces Be that as It may there IS nothIng In the CollectIve Agreement that would have oblIged the CNCC to make such InformatIOn known. At some pOInt after the first electIOn there was a second opportumty offered to some CorrectIOnal Officers IncludIng the gnevor and at that tIme, he chose to "opt out" Therefore he was entItled to the nghts under ArtIcle 20 of the CollectIve Agreement. It was the gnevor's VIew that he "had no chOIce" In thIS regard because he lacked the firm knowledge of whether he would have receIved a job opportumty from CNCC AddItIOnally because no one could tell hIm about the terms and condItIOns of work at CNCC IncludIng whether there would be umon representatIOn and penSIOn, he felt compelled to make remaInIng wIthIn the OPS as hIS "focus" In accordance wIth ArtIcle 20 Mr Wilkie lIsted, In order of preference facIlItIes he would be prepared to be moved to Dunng thIS tIme there was an agreement that certaIn employees could laterally transfer to open posItIOns If they had made theIr desIre to do so known In wntIng by a partIcular date The gnevor wrote to the Employer that he wanted to go to Niagara DetentIOn Centre even though he had not IndIcated hIS Interest prevIOusly He was granted a transfer to Niagara In June of 2001 However when the Employer realIzed that Mr Wilkie's request had not been wIthIn the specIfied tIme penod, the lateral transfer was cancelled. UltImately there was a Memorandum of Settlement dated September 17 2001 allowIng Mr Wilkie a lateral transfer to Niagara DetentIOn Centre effectIve December 3 2001 Shortly thereafter the gnevor requested a lateral transfer to CECC ThIS request was ongInally demed. It was the gnevor's VIew that because others wIth less semonty were beIng granted 5 transfers to LIndsay hIS requests were eIther overlooked or "sImply Ignored" He agaIn asked for the assIstance of the Umon and shortly thereafter he was granted a lateral transfer to CECC In accordance wIth ArtIcle 6 6 1 of the CollectIve Agreement. Once he arnved at CECC he became aware that other CorrectIOnal Officers were gIven relocatIOn costs for theIr move to LIndsay ThIS gnevance was filed at that tIme because Mr Wilkie was of the VIew that whether a CorrectIOnal Officer "transferred from the first cloSIng InstItutIOn or the last cloSIng InstItutIOn should make no dIfference In the financIal arrangements made avaIlable to staff' In hIS VIew hIS faIlure to receIve the same momes as others constItutes dISCnmInatIOn under the CollectIve Agreement. It IS not surpnsIng to me that some of Mr Wilkie's co-workers would have receIved relocatIOn costs Some of the CorrectIOnal Officers working at CECC would have receIved that work assIgnment as the result of nghts they were entItled to In accordance wIth AppendIx 13 whIle others, lIke the gnevor arnved at CECC as the result of ArtIcle 6 6 1 whIch states With the agreement of the Umon, the employee and the Employer an employee may be assIgned to a vacancy where (a) the vacant posItIOn IS IdentIcal to the posItIOn occupIed by the employee and (b) the vacant posItIOn IS In the same mImstry as the posItIOn occupIed by the employee, and the provIsIOns of ArtIcles 6 1 1 6.2 6 3 64 and 6 5 shall not apply) In accordance wIth the terms of the CollectIve Agreement, those employees who were assIgned to CECC as the dIrect result of AppendIx 13 were entItled to re-IocatIOn costs whIle the gnevor was not. SImply put, there IS no entItlement to relocatIOn costs under ArtIcle 6 6 1 AccordIngly the gnevance IS demed. Toronto thIS 14th day of December 2004 . S