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HomeMy WebLinkAbout2004-0851 Zamostny et al.04-10-28 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# 2004-0851 2004-0852, 2004-0853 2004-0854 2004-0855 UNION# OLB220/04 OLB221/04 OLB222/04 OLB223/04 OLB224/04 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (Zamostny et al ) Grievor - and - The Crown III RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Joseph D Carner Vice-Chair FOR THE UNION JulIa Noble Counsel Ontano LIqUor Boards Employees' Umon FOR THE EMPLOYER AlIson Renton Counsel LIqUor Control Board of Ontano HEARING October 19 2004 2 Intenm DeCISIon Further to the first day of proceedIngs In thIS matter I propose, here to confirm the status of proceedIngs as dIscussed wIth Counsel on October 19 2004 To set the stage, the Umon alleges that the Employer vIOlated the CollectIve Agreement and related Memorandum of Agreement In the folloWIng way 1) On or about May 3 2004 the Employer umlaterally transferred or assIgned Mr Roland Anstett, from the posItIOn of Manager of ItS Southampton, OntarIo retaIl store to the same Job In ItS Walkerton, OntarIo store #30 2) In umlaterally ImplementIng the transfer the Employer faIled to post the Walkerton vacancy whIch had resulted from the retIrement of Mr CharlIe Bagnato the prevIOUS Store Manager 3) The vacated bargaInIng umt posItIOn, accordIng to the Umon, was wIthIn the Job postIng boundarIes of the Western RegIOn of the ProVInce QualIfied employees from wIthIn that Western RegIOn only were entItled to the 1st opportumty to bId the Job In preference to any employee from outsIde the regIOn. 4) The Southampton Store where Mr Anstett had been Manager was In the North RegIOn of the ProVInce for Job postIng purposes He was, therefore, InelIgIble to bId the Job let alone be assIgned to the posItIOn wIthout ItS havIng first been posted as a vacancy 5) AddItIOnally the Umon reserved the rIght to assert that the transfer of Mr Anstett In the cIrcumstances, here was done In bad faith. 6) In support of ItS posItIOn that the ProVInce must be consIdered as four (4) separate regIOns for the purposes of Job postIng and bIddIng procedures the Umon Intends to rely upon a) the clear meamng of the PartIes Agreement(s) or b) If ambIgUIty eXIsts, the past practIce of the PartIes or c) estoppel PartIculars have not yet been provIded as to the PartIes' past practIce or the elements of estoppel upon whIch the Umon Intends to rely For ItS part, the Employer demes any vIOlatIOn of the CollectIve Agreement. Instead, It acknowledges that the CollectIve Agreement oblIges It to post vacancIes for the posItIOn of Store Manager In "C-Stores" such as W alkerton. However It asserts that prIor to such postIng It may exercIse ItS Management rIght to transfer or assIgn employees from eqUIvalent posItIOns In the ProVInce regardless of the RegIOnal dIvIsIOns In thIS case, Mr Roland Anstett was a C Store Manager In Southampton the North RegIOn, and was qualIfied for thIS lateral move HavIng completed the transfer the Manager's posItIOn vacated by Mr Anstett In Southampton was posted, bId and filled as reqUIred pursuant to the CollectIve Agreement. With respect to the InterpretatIOn of the PartIes' Agreement(s) the Employer demes that ItS rIghts to transfer employees In these CIrcumstances IS fettered. It asserts that It retaIns rIghts to 3 Implement lateral transfers and or re-assIgnments wIthIn classIficatIOns and/or posItIOns before determInIng or IdentIfYIng the regIOnal locatIOn of a vacancy The Employer seeks partIculars of any extraneous eVIdence the Umon seeks to Introduce wIth respect to past practIce and/or estoppel and reserves ItS rIghts to obJect to the IntroductIOn of any and all such eVIdence As to the suggestIOn of "bad faith" the Employer demes the allegatIOn and also seeks partIculars AddItIOnally If reqUIred the Employer asserts and wIll show that the transfer of Mr Anstett was done In good faith a) Mr Anstett had, prIor to Mr Bagnato's retIrement applIed for transfer to The West RegIOn, b) he sought the transfer for valId personal and medIcal reasons, c) the Employer offered Mr Anstett thIS opportumty as a legItImate accommodatIOn of hIS needs d) the Employer does not now seek to JustIfy or characterIze the transfer of Mr Anstett as an "accommodatIOn" under the Human Rights Code SInce It was not so IdentIfied at the tIme It was Implemented. Mr Roland Anstett was gIven notIce of these proceedIngs and appeared on hIS own behalf The possIbIlIty that the transfer of Mr Anstett mIght be characterIzed as an "accommodatIOn" under the Human RIghts Code dId not clearly arIse untIl the first day of proceedIngs SInce there eXIsts the possIbIlIty that Mr Anstett's rIghts pursuant to the Human Rights Code mIght trump all other consIderatIOn, confirmatIOn concernIng the potentIal exerCIse of those rIghts by Mr Anstett IS reqUIred before the matter proceeds AccordIngly Counsel have agreed to provIde Mr Anstett wIth copIes of letters outlInIng the Issues to be determIned whIch were exchanged between them prIor to the commencement of these proceedIngs It IS hoped that those documents together wIth thIS letter wIll assIst In IdentIfYIng those areas In whIch Mr Anstett's specIal Interests mIght arIse We have requested that Mr Anstett, on consultatIOn wIth Umon Counsel and, If consIdered approprIate, on further advIce from Independent counsel, contact thIS trIbunal and the PartIes to clarIfy a) Whether or not he wIll seek to rely upon the Human Rights Code to defend hIS transfer to the posItIOn of Manger Walkerton store b) the manner or nature of hIS claim to entItlement to the protectIOn of the Human Rights Code I expressed to Mr Anstett a request that he make hIS best efforts to confirm the posItIOn to be taken on hIS behalf wIthIn SIX (6) to eIght (8) weeks of receIpt by hIm of the InfOrmatIOn from Counsel In the meantIme, thIS matter stands adJourned pendIng confirmatIOn ofMr Anstett's posItIOn and partI CI patI on In the contInUatIon of these proceedIngs 4 As to partIculars to be provIded by the PartIes and referred to earlIer In thIS letter I trust that Counsel wIll co-operate wIth each other For the tIme beIng, we wIll refraIn from attemptIng to schedule contInUatIOn dates Issued at Toronto thIS 28th day of October 2004 ..