HomeMy WebLinkAbout2004-0522.Hynes.05-12-14 Decision
Crown Employees Commission de Nj
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# 2004-0522,2004-0523 2004-0524 2004-0525 2004-0526
UNION# 2004-0218-0003 2004-0218-0004 2004-0218-0005 2004-0218-0006 2004-0218-0007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Hynes) 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 Lucy Neal
Semor Staff RelatIOns Officer
Mimstry Commumty Safety and CorrectIOnal
ServIces
HEARING October 27 2005
2
DeCISIon
In September of 1996 the MmIstry of CorrectIOnal ServIces notIfied the UnIon and
employees at a number of provmcIaI correctIOnal mstItutIOns that theIr facIlItIes
would be closed and/or restructured over the next few years On June 6, 2000 and
June 29, 2000 the UnIon filed pohcy and mdIvIdual gnevances that alleged vanous
breaches of the collectIve agreement mcludmg artIcle 6 and artIcle 31 15 as well as
gnevances relatmg to the filhng of correctIOnal officer posItIOns In response to
these gnevances the partIes entered mto dIscussIOns and ultImately agreed upon
two Memoranda of Settlement concernmg the apphcatIOn of the collectIve
agreement dunng the "first phase of the MmIstry's transItIOn" One memorandum,
dated May 3, 2000 (heremafter referred to as "MERC 1" (MmIstry Employment
RelatIOns CommIttee)) outhned condItIons for the correctIOnal officers willie the
second, dated July 19,2001 (heremafter referred to as "MERC 2") provIded for the
non-correctIOnal officer staff Both agreements were subJect to ratIficatIOn by
respectIve prmcIples and settled all of the gnevances IdentIfied m the related
MERC appendIces, filed up to that pomt m tIme The partIes contmued to negotIate
and agree upon further condItIons regardmg the transItIOn matters MERC 3 was
sIgned by the partIes on February 25, 2002
WhIle It was agreed m each case that the settlements were "wIthout preJudIce or
precedent to posItIOns eIther the UnIon or the employer may take on the same
Issues m future dIscussIOns", the partIes recognIzed that dIsputes mIght anse
regardmg the ImplementatIOn of the memoranda. Accordmgly, they agreed, at Part
G, paragraph 8
3
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 unplementatIOn of tlllS agreement
It IS tlllS agreement that provIdes me wIth the JunsdIctIOn to resolve the outstandmg
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
filhng those posItIOns as they become aVailable throughout varIOUS phases of the
restructunng GIven the complexIty and SIze of the task of restnlctunng and
decommISSIOnIng of mstItutIOns, It IS not surpnsmg that a number of gnevances
and dIsputes arose ThIS IS another of the dIsputes that have ansen under the
MERC Memorandum of Settlement
When I was mItIally mVIted to hear theses transItIOn dIsputes, the partIes agreed
that process to be followed for the determmatIOn of these matters would be
vIrtually IdentIcal to that found m 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 / arb 1 trator shall determme the gnevance by
arbItratIOn When detennmmg the gnevance by arbItratIOn, the
medIator/arbItrator may hmIt 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 wItllln five (5) days after
completmg proceedmgs, unless the partIes agree otherwIse
4
The transItIOn commIttee has dealt wIth dozens of gnevances and complamts 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, m accordance
wIth my JunsdIctIOn to so detennme, that gnevances are to be presented by way of
each party presentmg a statement of the facts wIth accompanymg submIssIOns
NotwIthstandmg that some gnevors mIght wIsh to attend and provIde oral
eVIdence, to date, tlllS process has been efficIent and has allowed the partIes to
rem am relatIvely current wIth dIsputes that anse from the contmumg transItIOn
process
Not surpnsmgly, m a few mstances there has been some confusIOn about the
certam facts or sImply msufficIent detail has been provIded. On those occaSIOns I
have dIrected the partIes to speak agam wIth theIr prmcIples to ascertam the facts
or the ratIOnale belllnd the partIcular outstandmg matter In each case tlllS has been
done to my satIsfactIOn
It IS essentIal m tlllS process to aVOId accumulatmg a backlog of dIsputes The task
of resolvmg these Issues m a tImely fashIOn was, from the outset, a formIdable one
WIth ongomg changes m MmIstenal boundanes and other organIzatIonal
alteratIOns, the task has lately become larger, not smaller It IS for these reasons
that the process I have outlmed IS appropnate m these CIrcumstances
Mr Gary Hynes was a Motor Velllcle Repair Officer 2 at the Burtch CorrectIOnal
Centre By the end of March of 2003 there were no mmates at the Burtch
CorrectIOnal Centre and the gnevor's posItIOn there ended as of Apnl4, 2003
5
He receIved notIce m accordance wIth ArtIcle 20 as there was no work for hIm to
perform Mr Hynes had hoped to go through the COSTART (CorrectIOnal Officer
basIc trammg) but unfortunately he was not successful m tlllS regard However, the
Employer provIded a second opportUnIty for COSTAR T and on that occaSIOn he
passed and therefore was able to contmue to work an addItIonal SIX months at
Elgm MIddlesex DetentIOn Centre
He was ongmally scheduled to be laid off from hIS posItIOn at Burtch CorrectIOnal
Centre but after a request to do so he was allowed to contmue to work as a
CorrectIOnal Officer 2 at Elgm MIddlesex DetentIOn Centre
On June 3, 2004, the Employer sent the gnevor a letter that set out IllS work
hIstory It stated, m part
On November 21, 2001 you were provIded notIce of surplus m accordance
wIth the MERC agreement of the Burtch CorrectIOnal Centre At that tune,
you selected OptIOn 2 Redeployment under ArtIcle 20.2 of the collectIve
agreement On January 15, 2003 you were provIded notIce that the
decommISSIOnIng of the Burtch CorrectIOnal Centre would occur by January
20, 2003 and were offered the opportunIty to partIcIpate m the
decommISSIOnIng of the Burtch CorrectIOnal Centre for a penod of
approxImately one month wIth possible extensIOn
On Apnl 3, 2003, you were advIsed that m accordance wIth ArtIcles 24 9
and 24 13 (Slc) of the current OPSEU CollectIve Agreement, the MmIstry
had attempted to IdentIfy a posItIOn mto whIch you were ehgible to dIsplace
or a vacancy to whIch you may be assIgned for retrammg The MmIstry was
not able to IdentIfy such a posItIOn, and as a result, you would be laid off
effectIve October 7, 2003 You partIcIpated m the COSTART program and
were advIsed of your successful completIOn on Apnl 4, 2003 and offered a
6
temporary assIgnment (classIfied status) as a CorrectIOnal Officer at the
Elgm-MIddlesex DetentIOn Centre At the end of the SIX month penod, you
wIll be ehgible for tennmatIOn benefits
Your temporary assIgnment opportUnIty IS now bemg termmated and you
are bemg released from the MmIstry of CommunIty Safety and CorrectIOnal
ServIces m accordance wIth ArtIcle 20 of the OPSEU CollectIve Agreement
wIth the followmg optIOns
As IS apparent from the above, Mr Hynes worked at the EMDC on a temporary
basIs HIS salary was red-cIrcled at the maXImum salary rate of a Trade Instnlctor 3
for a SIX month penod effectIve Apnl 7, 2003
On Apnl 19, 2004 Mr Hynes was appomted to the unclassIfied staff at the
Stratford Jail
On Apnl 26, 2004 Mr Hynes filed five gnevances The first alleged that he should
have receIved travel tIme and mIleage for the entIre penod of hIS temporary
assIgnment ThIS gnevance IS denIed because the temporary assIgnment was not
reqUIred by the Employer as consIdered by the CollectIve Agreement
The remammg gnevances alleged that hIS shIft schedule was changed wIthout
notIficatIOn, he was Improperly laid off, he was denIed access to mamtenance
mechanIc vacanCIes at HamIlton Wentworth DetentIOn Centre and finally that hIS
"senIonty (length of contmuous servIce) as per ArtIcle 18 specIfically but not
exclusIvely, be mcluded" m IllS new posItIOn of "CorrectIOn Officer (unclassIfied)
for the purpose of competItIOns, layoffs, transfers and converSIOn to full tIme
status"
7
A reVIew of the documentatIOn m thIS matter reveals that there was no vIOlatIOn of
the collectIve agreement wIth respect to the treatment of tlllS gnevor He was not
Improperly laid off or redeployed and there was no change m IllS schedule Further,
there was no eVIdence to substantIate that he was denIed access to mamtenance
mechanIc vacanCIes The only vacanCIes dunng tlllS penod at HWDC were
Mamtenance MechanIc 3 posItIOns and the gnevor was a Mamtenance MechanIc 2
and therefore not entItled to notIficatIOn of these vacanCIes
Fmally, there IS no CollectIve Agreement nght for the gnevor to carry forward IllS
senIonty m hIS unclassIfied posItIOn at the Stratford JaIl UnclassIfied employees
do not enJoy thIS benefit as set out m my earher decIsIOn of May 3, 2005
(SlllptIckI) GSB#2002-1119
F or those reasons, hIS gnevances are denIed.
DatedJ Toronto t/us ] 4th day of~ecember, 2005
, l. '4 E;@P'W
..: ;'" ~ ~ - L :.:~