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HomeMy WebLinkAbout2004-2495.Dosanjh.05-10-18 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 1 Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2004-2495 UNION# 2004-0229-0019 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Dosanjh) 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 29 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 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 tune 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 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 3 It IS thIS 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/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 detennme, that gnevances are to be presented by way of 4 each party presentmg a statement of the facts wIth accompanymg submIssIOns Notwlthstandmg 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 msufficlent detail has been provIded. On those occaSIOns I have dIrected the partIes to speak agam WIth theIr prmclples 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 fashIOn was, from the outset, a formIdable one WIth ongomg changes m Mmlstenal 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 Latmder Dosanjh IS a CorrectIOnal Officer at OCI HIS gnevance concerns a faIled Job trade On February 26, 2004, a memorandum was Issued to all OPSEU employees m the Mmlstry from the TransItIOn Umt wIth copIes to all appropnate managenal employees That memorandum clearly sets out the pohcy and practIce of Job Trades The memo stated, m part 5 The Job Tradmg Program provIdes an opportunIty for a CorrectIOnal ServIces employee to exchange Jobs and work locatIOns wIth another CorrectIOnal ServIces employee The Job Tradmg prOVISIOns as outhned apply only to classIfied OPSEU employees A classIfied employee IS ehgible to trade Jobs wIth another classIfied employee who IS m the same Job, the same classIficatIOn, and m the same category (e g , a full-tIme employees trades wIth a full-tIme employee, and a regular part-tIme employee trades wIth another regular part-tIme employee) Both employees must be wItlun the same mmIstry and must be able to perform the dutIes of the desIred posItIOn wIthout trammg CorrectIOnal ServIces employees mterested m Job Tradmg should complete the attached Job Tradmg RegIstratIOn Form and forward It to the cost centre manager of theIr home posItIOn Once theIr manager has completed the "Home PosItIOn InformatIOn" sectIOn of the form, It should be forwarded to The Workforce Adjustment UnIt wIll acknowledge receIpt of the RegIstratIOn Form m wntmg, and wIll retam the regIstrant's name on the Job Trade RegIstry for a one-year penod. Incomplete RegIstratIOn Forms and/or mformatIOn wIll be returned to the employee Job Trade regIstratIOns must be renewed annually as they wIll be deleted at the end of a one-year penod from the date of the last regIstratIOn The Job Trade RegIstry wIll penodIcally be revIewed as regIstratIOns are receIved If a Job Trade match IS IdentIfied, a Job Trade RegIstratIOn Agreement wIll be prepared by the Workforce Adjustment UnIt and wIll be forwarded to the proposed partIes to the agreement (the two Job tradmg employees, and the two cost centre managers) All four of the partIes must be m agreement for the Job Trade to be final If any of the partIes do not agree to the Job Trade, the Workforce Adjustment UnIt wIll wnte to the employees and cost centre managers, and wIll advIse them of tlus fact Mr Dosanjh filled out the RegIstratIOn form mdIcatmg hIS desIre to trade to a posItIOn at Toronto West DetentIOn Centre Ms Johna Lee WIdmann, a CorrectIOnal Officer at Toronto West also filled out a RegIstratIOn fonn statmg her wIsh to trade mto a posItIOn at OCI In accordance wIth the pohcy as stated above, the partIes completed and sIgned a Job Tradmg Agreement m July of 2004 It was agreed that the effectIve date for the Job Trade would be August 23, 2004 The Agreement stated, "thIS agreement IS final and bmdmg on all partIes" The gnevor 6 was sent confirmatIOn of the Job trade m a letter dated July 30, 2004 from hIS Deputy Supenntendent, Mary Capobianco In accordance wIth the agreed upon arrangements the gnevor reported to work on August 23, 2004 at Toronto West DetentIOn Centre For reasons that were not made clear to tlus Board, he was told to return to Ius posItIOn at OCI On June 28, 2004 thIS Board Issued a decIsIOn regardmg the matter of Job trades A questIOn was posed as to the appropnate method of proceedmg once the Job Trade Agreement had been sIgned m the event one of the partIes wanted to rescmd agreement In that decIsIOn It was Said at page 4 A Job trade was found for tlus CorrectIOnal Officer and the paper work was completed. At some tune after the trade was concluded he sought to revoke Ius agreement to trade Jobs I would not be prepared to allow such a revocatIOn On vIrtually any day m almost any workplace, It IS accepted as good labour relatIOns that deals made are deals kept That has certamly been my expenence m deahng wIth these partIes In my VIew, thIS general prmcIple IS partIcularly true m the context of the transItIOn process There are many employees havmg to change posItIOns and workplaces due to the sIgmficant restnlctunng that has occurred and that contmues to occur Job changes m tlus context are not actIOns wIthout consequences to others For example, when one employee elects to take a VEO there IS often an Impact on other employees The second employee mIght elect an employment optIOn that wIll have sIgmficant meanmg to a tlurd employee and so on It IS no doubt for thIS reason that the partIes agreed to prOVISIOns of ArtIcle 10 3 It IS certamly for these reasons that I dIsmIss any such gnevance As IS eVIdent from the above excerpt, I am of the VIew that once such an agreement IS made none of the four partIes can rescmd agreement In thIS case the Employer was obhged to allow the Job trade to take place as It was set out m the agreement Therefore, the gnevance IS allowed. The partIes are dIrected to dISCUSS and 7 determme the most appropnate date for the Job trade to take place To be clear, thIS Job trade wIll take place wItlun a reasonable penod of tune Further, the Employer IS ordered to pay any compensatIOn that flows from tlus breach I remam seIzed m the event of ImplementatIOn dIfficultIes Dated, T oronto ~ 18th day of October 2005 F ehcIty D Bnggs VIce-Chair