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Home My WebLink About2004-1970.Gowan.05-07-11 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# 2004-1970 UNION# 2004-0234-0487 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Gowan) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty 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 of Commumty Safety and CorrectIOnal ServIces HEARING June 8 2005 2 DeCISIon In September of 1996 the MinIstry 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 I" (MmIstry Employment RelatIOns CommIttee)) outhned condItIons for the correctIOnal officers whIle 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 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 nnplementatIOn of the memoranda. Accordmgly, they agreed, at Part G, paragraph 8 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 nnplementatIOn of tlllS agreement It IS thIS agreement that provIdes me wIth the jUnSdIctIOn to resolve the outstandmg matters 3 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 detennmatIOn 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/arbItrator 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 wIthm five (5) days after completmg proceedmgs, unless the partIes agree otherwIse 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 determme, 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 4 eVIdence, to date, thIS 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 behmd the partIcular outstandmg matter In each case thIS has been done to my satIsfactIOn It IS essentIal m thIS process to aVOId accumulatmg a backlog of dIsputes The task of resolvmg these Issues m a tImely faslllon was, from the outset, a fonnIdable one WIth ongomg changes m MmIstenal boundanes and other orgamzatIonal 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 Ms Irene Gowan IS presently an unclassIfied CorrectIOnal Officer at the Vamer Centre for Women at Maplehurst On November 19,2001, when she was workmg at the Guelph CorrectIOnal Centre she wrote the followmg to her supenntendent ThIS letter IS to advIse you of my mtentIOn to retIre m March 2002 I wIll have attamed Factor 80 on March 26, 2002 and must gIve officIal notIce wIthm a 3 month frame If your mstItutIOn remams operatIOnal and the optIOn to work 3 months followmg March 26,2002, I wIsh to do so Please advIse me as to my next step m thIS early retIrement process I would appreciate It very much Note If and when the Wellmgton DetentIOn Centre deems me "surplus" I wIsh to consIder the optIOn of "Bndgmg" 5 In accordance wIth those stated wIshes the gnevor was to retIre on June 7, 2002 As the result of unforeseen personal reasons, on May 3, 2002 Ms Gowan asked that she be allowed to contmue wIth the MinIstry and to have her retIrement request rescmded. That request was denIed m a June 3 2002 letter from Lmda Elhot, SenIor TransItIOn SpecIahst, that stated, m part I am wntmg m response to your fax of May 30, 2002 In your letter you IdentIfied that you wIshed to rescmd your prevIOus electIOn to take Surplus Factor 80 - March 26, 2002 When your posItIOn at Wellmgton DetentIOn Centre was declared surplus you elected to take Factor 80 - March 26, 2002 As well, you wrote a letter to Ms Diane Doherty on November 19,2001 advIsmg of your mtent to retIre m March 2002 Temporary AssIgnments m the duratIOn of three to SIX months are currently bemg offered to those Guelph CorrectIOnal Centre staff who have AppendIx 18 nghts and entItlements under the CollectIve Agreement As outhned prevIOusly, the Guelph CorrectIOnal Centre IS presently decommISSIOnIng Currently, temporary assIgnments for GA TV are not bemg accepted. Your electIOn at the tIme of surplus from the Welhngton DetentIOn Centre to take the optIOn of Surplus - Factor 80 - March 26, 2002, IS final and bmdmg You are now ehgible to retIre ThIS letter wIll confirm that your last day of work wIll be Fnday June 7, 2002 Almost two years later, on August 9, 2004 Ms Gowan filed a gnevance that "her employer has treated me wIth bias and prejUdICe wIth respect to my request to cancel my Factor 80 apphcatIOn " Accordmg to the documentatIOn provIded at the heanng I am convmced that the gnevor was notIfied of her vanous optIOns m a tImely fashIOn Ms Gowan elected to retIre after receIvmg all of the pertment mfonnatIOn 6 The Employer reluctantly raised a prehmmary ObjectIOn wIth respect to tImehness The gnevance was filed more than two years after the gnevor retIred and therefore should not be consIdered on ItS ments by tlllS Board. The Umon was unable to provIde any reasonable grounds for the delay and accordmgly, I must uphold the Employer's prelllnmary ObjectIOn WhIle It IS unfortunate that the gnevor's personal CIrcumstances changed, and I am sensItIve to those matters, I am unable to uphold the gnevance The gnevance IS dIsmIssed. Dated m Toronto thIS 11th day of July, 2005 I ~ . ;;