Loading...
HomeMy WebLinkAboutP-2001-0013.Sawyer et al.05-04-20 Decision Public Service Commission des ~~ Grievance Board griefs de la fonction publique Bureau 600 ~-,... Suite 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 P-2001-0013 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Sawyer et al Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Kathleen G O'NeIl Vice-Chair FOR THE GRIEVOR Zoltan RonkaI Tom Sawyer FOR THE EMPLOYER LIsa Compagnone Counsel Management Board Secretanat HEARING January 12, 2005 2 DeCISIon ThIS gnevance was ongInally filed on July 2,2001 on behalf of a group of twenty-one operatIOnal managers from Guelph CorrectIOnal Centre, an InstItutIOn slated to be closed. The gnevors claimed that they should be laterally transferred Into open posItIOns wIthout havIng to compete for the same jobs that they had been dOIng for years SInce that tIme, the gnevance has been resolved Insofar as It applIes to all the members of the group wIth the exceptIOn of Mr Tom Sawyer the gnevor now before me who claims expenses and travel tIme Incurred due to the delay In gIVIng hIm a lateral transfer ThIS decIsIOn deals wIth the prelImInary ObjectIOn of the employer that the matter should be dIsmIssed, as there has been a change In the scope of the gnevance The employer submIts that the PublIc ServIce Gnevance Board (PSGB) only has jUnSdIctIOn over the gnevance that has been filed, whIch must be the same complaInt as the one raised wIth the Deputy Mimster Once an Issue IS raised that does not fall wIthIn the gnevance raised wIth the Deputy such as the current expense claim, the employer argues that the PSGB has no jUnSdIctIOn. The ongInal gnevance reads as follows I would lIke to submIt a gnevance on behalf of all the undersIgned OperatIOnal Managers (OM-16-s) of the Guelph CorrectIOnal Center We are hereby gneVIng the process that has been put In place by the mImstry to fill present vacanCIes In the OM 16 category Our contentIOn IS that we - operatIOnal managers In cloSIng InstItutIOns - should be laterally transferred to these open posItIOns wIthout havIng to compete for the same jobs that we have been dOIng for years The gnevance was sIgned by Mr Zoltan RonkaI, who appeared wIth the gnevor before me, and twenty -one other managers ThIS gnevance IS one of a number of gnevances whIch were filed In response to a Mimstry-wIde job competItIOn posted on June 22,2001 In a penod ofsIgmficant restructunng ofOntano's pnson system The postIng covered vacanCIes In cloSIng, eXIstIng and future facIlItIes, and made It possIble that bargaInIng umt candIdates wIth actIng managenal expenence as well as those already In permanent management posItIOns could fill the posted posItIOns A number of the gnevances from OM-16's dIssatIsfied wIth thIS approach were consolIdated and heard together resultIng In a decIsIOn styled Willilams et al. (P/0008/01 P/00010/01 P/0001l/01 P/00014/01 3 P/00016/01 P/00018/01 P/00019/01 P/00020/01 P/00021/01 P/00022/01 P/00023/01 P/00024/01 P/00025/01 P/00026/01 P/00027/01 P/00028/01 P/00029/01 P/00030/01 P/00031/01 P/00032/01 P/00033/01 P/00034/01 P/00035/01 P/00037/01 P/00038/01 P/00039/01 P/00041/01 P/00043/01), whIch was referred to by the partIes throughout as "the LeIghton decIsIOn" dated January 14 2002, about whIch more below Background facts recounted by Mr RonkaI, for the purpose of hIS response on behalf of the gnevor to the employer's prelImInary motIOn, IndIcated that the gnevor Mr Sawyer was appoInted as a permanent OM-16 manager In Apnl2001 Just a few months before the June 22 postIng In questIOn. Mr Sawyer was under the ImpreSSIOn that If he dId not apply and compete wIthIn the establIshed postIng process, he would be out of a J ob As a result, he, unlIke others In the group of twenty-one gnevors, applIed under the postIng. He put five chOIces, startIng wIth four non-closIng InstItutIOns, and puttIng the Ontano CorrectIOnal InstItutIOn In Brampton (the OCI) as hIS last chOIce The OCI was slated to close as well, but It was known that It was lIkely to be open longer than the Guelph CorrectIOnal Centre EffectIve March 11 2002, the gnevor was assIgned to OCI, on the eve of a lengthy stnke by the OPSEU bargaInIng umt. He was of the VIew that It was a temporary posItIOn, sInce It was a cloSIng InstItutIOn, and IS claimIng the expenses that go wIth a temporary assIgnment. The letter postIng hIm to OCI dId not state whether the posItIOn was permanent or temporary The employer takes the posItIOn that It was a permanent postIng, whIch IS at the core of the remaInIng dIspute before the Board. In January 2002, the LeIghton decIsIOn was released, findIng that the gnevors In the consolIdated gnevances dId have pnonty In fillIng vacant posItIOns as they had been declared surplus when the mImster announced the cloSIng of theIr InstItutIOns Shortly thereafter the gnevor approached the employer seekIng the same consIderatIOn, and a transfer to Maplehurst CorrectIOnal Complex. At first he was told that he was not entItled to the same treatment, but In December 2002, he receIved a letter IndIcatIng he would be covered by the LeIghton decIsIOn and he could choose where he wanted to go Employer counsel acknowledges that thIS amounted to allowIng the gnevance now before me The gnevor remaIned at OCI, untIl hIS transfer to Maplehurst CorrectIOnal Complex In June 2003 What the gnevor IS now claimIng IS travel tIme and expenses he Incurred from March 22, 2002, when he was assIgned away from Guelph to OCI, untIl hIS transfer to Maplehurst on June 4 16 2003 On behalf of the gnevor Mr RonkaI asserted that the Issues of the temporary assIgnment at OCI anse out of thIS gnevance, because It was not allowed untIl after the LeIghton decIsIOn, and then only after a penod when It was maIntaIned that It was not applIcable to hIm. In other words, the submIssIOn IS that the delay In allowIng the gnevance caused the gnevor a lengthy penod In a temporary assIgnment at OCI whIch Involved sIgmficant cost to hIm, whIch should be borne by the employer The employer contends that such expenses are not avaIlable as the OCI posItIOn was permanent, and one of the gnevor's chOIces, but maIntaInS that, In any event, the Board should not hear the ments because the claim for expenses does not flow from the ongInal gnevance, whIch asked for a lateral transfer as remedy Counsel notes that the postIng was dated June 22,2001 wIth a cloSIng date of July 6 The gnevance was filed before the cloSIng date makIng It clear that It relates to the postIng Itself The gnevors, IncludIng Mr Sawyer were gIven the lateral transfers requested, and that IS the end of It, In the employer's VIew The employer observes that all of the facts that are at the basIs of the remaInIng claim for expenses occurred after the gnevance was filed In July 2001 IncludIng the assIgnment to OCI and the heanng and LeIghton decIsIOn In the Williams matter When the employer Implemented that decIsIOn, managers across the proVInce were asked where they would want to move If they were not happy wIth where they were As part of that process, Mr Sawyer was offered an assIgnment to Maplehurst In December 2002, wIth no relocatIOn expenses, and an effectIve date at the dIscretIOn of the employer The actual transfers were done at a rate that the reCeIVIng InstItutIOn could absorb and the sItuatIOn at the InstItutIOn beIng left permItted. Because of a delay caused by staffing reqUIrements at OCI, that effectIve date turned out to be approxImately SIX months later In June 2002 Thus, employer counsel underlInes, the facts necessary to the current claim matenalIzed well after the gnevance, and In the employer's VIew cannot be said to flow from the ongInal gnevance Employer counsel submItted that the tImIng of the facts underlYIng the current claim hIghlIght that there has been a change of scope, somethIng that should lead the Board to declIne to hear the ments of the gnevance Counsel referred to two cases 5 Fansh~e College and OPSEU, (Union Grievance) (2002) 113 LAC (4th) 328 and Ontario Hvdro and POYf,er Workers Union) (1996) 53 LAC (4th) 163 both decIsIOns by Boards of ArbItratIOn chaired by ArbItrator Burkett. Counsel submItted that the Junsprudence has consIstently held that gnevances should be gIven a broad readIng, but that, absent an agreement between the partIes to expand the scope of the gnevance, an arbItraror's JunsdIctIOn IS lImIted to the gnevance filed. As noted In the cases, It IS not open to a party to umlaterally expand a gnevance to encompass a matter not gneved. ThIS IS a matter of fairness, as well as the efficIent admInIstratIOn of the gnevance and arbItratIOn process, so that the OpposIte party IS entItled to rely on the gnevance as filed, albeIt read In ItS broadest terms, and to govern Itself accordIngly wIth respect to settlement dIscussIOns, referral to and preparatIOn for arbItratIOn. Counsel proposed that the Board adopt the "acId test" artIculated at pg. 334 of the Fansh~e Collesze case, 1 e In decIdIng whether the Issue that IS framed at arbItratIOn IS the same Issue raised In the gnevance as filed, an arbItrator must compare the gnevance as wntten, IncludIng the remedy sought, to the Issue as raised at arbItratIOn, IncludIng the remedy sought. To the extent that Re Mississausza Hvdro-Electric Commission, supra, and Re Toronto (Citv) and CUPE, supra, as relIed upon by the Umon, can be read as dIStIngUIShIng between the gnevance filed and the remedy sought, thIS IS an artIficIal dIstInctIOn that, If relIed upon, undermInes the InqUIry Into whether the Issue raised at arbItratIOn IS the Issue raised In the gnevance The aCId test IS whether an Issue not encompassed wIthIn the gnevance that reqUIres the callIng of eVIdence and the makIng of legal submIssIOns has been raised. Without restnctIng the authonty of an arbItrator to fashIOn an appropnate remedy at the conclusIOn of a case, whIch mayor may not dIffer from the remedy sought, It IS the statement of gnevance read In conJunctIOn wIth the remedy sought that defines the essentIal nature of the gnevance and the Issues that have been raised by the gnevance, thereby allowIng an arbItrator to decIde If a gnevance has been Improperly expanded. The Idea referred to above that gnevances should receIve a broad readIng comes from Blouin Dr~all v CJA (1975) 57 DLR (3d) 199 at p 204 8 OR. (2d) 103 75 CLLC 14 295 6 These cases should not be won or lost on the techmcalIty of form, rather on the ments and as provIded In the contract and so the dIspute may be finally and fairly resolved wIth sImplIcIty and dIspatch. In the course of argument, employer counsel observed that If the prelImInary obJ ectIOn on the questIOn of change of scope were demed, there mIght be further prelImInary obJectIOns, IncludIng that the gnevance was fully and finally resolved when the LeIghton decIsIOn was Implemented, whIch mIght be a questIOn for a dIfferent panel of the PSGB The gnevor accepts that the ments of the gnevance have been dealt wIth, In that he receIved a lateral transfer However he does not agree that he has receIved a full remedy gIven the partIcular facts of hIS case, and the expenses engendered by the delay It was submItted that It would be better to deal wIth the Issue now than to be back before the Board SIX months from now wIth are-worded gnevance As well, It IS the gnevor's posItIOn that he was treated dIfferently from other gnevors, left out on a 11mb at a cloSIng InstItutIOn. In essence, the argument appears to be that the fact that others took the chance of not applYIng to the dIsputed postIng should not put them In a better posItIOn than the gnevor who dId apply Further It IS hIS VIew that because he was left In a cloSIng InstItutIOn on a temporary assIgnment, he should be allowed to access the expenses floWIng from the polIcy on temporary assIgnments It IS submItted that the treatment of the gnevor should be vIewed as a techmcalIrregulanty and an Improper applIcatIOn of the LeIghton decIsIOn. Further the employer's charactenzatIOn of the OCI assIgnment as the gnevor's chOIce IS not seen as accurate because It was put down as an alternatIve to "gOIng out the door" He dId not file a separate gnevance because he belIeved the Issues flowed from thIS gnevance, and thus the sItuatIOn should not be found to be a change of scope, In the gnevor's VIew The gnevor's posItIOn IS that hIS response to the postIng, whIch resulted In hIS temporary assIgnment to OCI, was forced by the employer's actIOns, whIch were later seen to be Improper If It had been done correctly In the first place he never would have been at OCI and been put to the addItIOnal expense that he Incurred. The gnevor belIeves the PSGB should have JunsdIctIOn, because the whole sItuatIOn flows from the posItIOn the gnevor was put In because of the Improper postIng procedure As to whether the matter should be before Vice-Chair LeIghton as a matter of ImplementIng her decIsIOn, It was the gnevor's posItIOn that her decIsIOn IS In wntIng and can be applIed wIthout restartIng thIS Issue before her 7 Employer counsel replIed that the LeIghton decIsIOn was used as a precedent to resolve the Guelph gnevances, SInce these were not part of the group consolIdated wIth Williams As well, counsel submIts that to the extent the gnevor IS now saYIng that the Issue IS dIfferent treatment from other managers, that further makes It clear that hIS request IS a change In scope from the ongInal gnevance ConcernIng the gnevor's observatIOn that there were posItIOns at Maplehurst he could have filled at the same tIme as he was sent to OCI, employer counsel submItted that the gnevor never had a nght to go to Maplehurst. It IS sImply a matter that the employer opted for a process that permItted hIm to go there In the end. On thIS pOInt, Mr RonkaI submItted on the gnevor's behalf that all OMI6's got theIr first chOIce, whIch makes It a nght. * * * HavIng consIdered the above facts and arguments, It IS the Board's VIew that the Issue to be determIned IS the scope of the remedIal Issues now properly before the Board. The employer essentIally allowed the gnevance after the Issuance of the LeIghton decIsIOn. What IS left IS the questIOn of whether there IS any remaInIng remedial Issue that the Board ought to entertaIn. In support of the employer's VIew there IS the fact that the remedIal relIef requested In the ongInal gnevance was qUIte sImple a lateral transfer As well, the "acId test" artIculated In the Fansh~e case could support the employer's VIew In that the eVIdence and argument necessary to determIne whether there was a lateral transfer due to the gnevors IS qUIte dIfferent from whether or not the gnevor's tIme spent In the penod between hIS transfer to OCI and the ImplementatIOn of the lateral transfer to Maplehurst was a temporary transfer and whether he IS entItled to travel tIme and expenses However It IS appropnate to note that the decIsIOn In the Fansh~e case left open the possIbIlIty that an arbItrator mIght well fashIOn a remedy dIfferent from the one sought In wntIng In the gnevance In support of the gnevor's VIew there IS the Idea that the true dIspute should not be demed a heanng because of a techmcalIty And at the end of any heanng, remedIal questIOns may well encompass Issues that have ansen after the filIng of the gnevance, whether because of a gnevor' s oblIgatIOn to mItIgate damages, or other events that become sIgmficant dunng the tIme between the filIng of a gnevance and the grantIng of a remedy and sometImes, the ImplementatIOn of that 8 remedy Here as well, we are dealIng wIth a provInce-wIde process whIch raised Issues and took tIme that could not have been In the contemplatIOn of the gnevors when they drafted the gnevance On balance, It IS the Board's VIew that the gnevor should be entItled to attempt to prove hIS case for the addItIOnal remedIal relIef he requests It IS not ObVIOUS that hIS claim IS outsIde the scope of the remedy necessary to put hIm, as close as possIble, In the posItIOn he would have been In If the transfer process had been conducted correctly In the first place Further even though the LeIghton decIsIOn In Williams, referred to above, may be an Important part of the determInatIOn of the outstandIng remedial Issues pertaInIng to Mr Sawyer's gnevance hIS gnevance was never before the LeIghton panel As a result, It IS not necessary to reconvene that panel to deal wIth these remedIal Issues A new date wIll be set by the RegIstrar In consultatIOn wIth the partIes to deal wIth all remaInIng remedIal Issues Dated at Toronto thIS 20th day of Apnl, 2005