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Home My WebLink About1992-0518.Ghiandoni.98-06-08 " r. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO I .1 1111 GRIEVANCE COMMISSION DE SETILEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 1aa, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB #0518/94,0519/94 OPSEU #94A828, 94A829 IN THE MA TIER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gluandoni) Grievor - and - The Crown in Right of Ontario (Mimstry of the SoliCItor General and CorrectlOnal ServIces) Employer BEFORE Loretta Mikus Vice-ChaIr FOR THE D Roberts UNION Counsel Ryder Wnght Blarr & Doyle Bamsters & SoliCItors FOR THE A. GulbmskI EMPLOYER Staff RelatIons Officer Mimstry of the SoliCitor General & Correctional SefVlces HEARING March 18, 1998 '- .. In an award dated August 16, 1996, the gnevor, Greg GhIandom, thIS Board determmed that the gnevor S SIX month contract of employment an unclassIfied ProbatIOn and Parole Officer m the Marutowarung office was not renewed, m part, because he exercIsed hIS nghts under the collectIve agreement. The A ward stated, m part, at pages 16 and 1 7 Havmg found that the Emplover dId, m part, rely on the gnevor's request that the UnIon mtervene on hIS behalf, the Issue then becomes what, If any, remedy the gnevor should be granted, It IS accepted that,. m remstatmg a gnevor, Boards of ArbItratIOn attempt to place the gnevor, to the extent possible, m the posItIOn he/she would have been m but for the Employer's actIOns, In most cases that IS not a dIfficult assIgnment. GIven the recent developments m the pubhc sector, specIfically the actual and proposed reductIOn of staff m all levels of the pubhc servIce, It IS more dIfficult m the CIrcumstances of thIS case Nevertheless, what IS reasonable based on the eVIdence before me IS the conclUSIOn that, but for the bad faIth consIderatIOns and m accordance WIth the actual practIce, the gnevor would have had hIS contract extended m Apnl of 1994 for another SIX months, Whether he would have had further extenSIOns at the end of the contract would depend on numerous factors, mcludmg the Employer's operatIOnal reqUIrements at the tIme We can only speculate as to what those factors mIght be. However, the Board IS satisfied that, but for the bad faIth of the Employer, the gnevor's contract would have been renewed for another SIX months, I dIrected the partIes to attempt to agree on the appropnate remedy and remamed seIzed m the event they were unsuccessful. On March 18, 1998, I reconvened the Board to hear submIssIOns on remedy We attempted to medIate but were unsuccessful and the partIes agreed to proceed by wntten submIssIOns. The Gnevor's pOSItIOn IS that, but for the Employer's faIlure to renew hIS contract, he would now have a full tIme pOSItIOn WIth the Mimstry Accordmgly he asked that he be remstated mto a full- tIme classIfied pOSItIOn of ProbatIOn and Parole Officer AlternatIvely, he IS entItled to 1 I '- .f 2 remstatement on the terms of a renewable SIX month contract wIth full compensatIOn datmg from the date of Ius termmatIOn to the date of ills remstatement, mcludmg mterest and a dIrectIOn that the Employer amend all ItS records, mcludmg Employee/SeparatIOn! Work Performance record, to mdlcate that the gnevor would be consIdered for re-hlre If the gnevor should apply for employment wIth the mmlstry, the Employer shall consIder hIS apphcatIOn on ItS ments m good faIth. In the final alternatlVe, the gnevor IS entltled to compensatIOn for a SIX month contract, mc1udmg mterest, and a dIrectIOn as referred to above It was the gnevor's posItIOn that he lost more than Just a renewal of hIS SIX month contract. He was demed the opportumty for any future employment m the mlmstry But for the Employer's bad faith, he would have pursued hIS career as a ProbatIOn and Parole Officer In order to be made whole he should be gIven that opportumty The Dmon referred to the Ministry of Correctional Services and OPSEU (Miller & McPhail) (1986), GSB # 531/82 and 532/82 (Venty), m whIch the Board remstated unclassIfied part-tIme employees who had been dIsmIssed wIthout cause and ordered full compensatIOn wIth mterest for the entlre four year penod between termmatIOn and the order The award was meant to put the gnevor's m the posItIOn they would have been m but for the employer's actIOns and compensate them for the lost opportumty to demonstrate sUltabIhty for reappomtment. In thIS case the Dmon argued that the gnevor would have remamed m hIS pOSItIOn at KIrkland Lake for a mmlmum of SIX months and he could have had the OppOrtunIty for further employment. The Board must recogmze that loss of opportumty for the remedy to be complete I I - -- -. -.- - - - - - - - - - . .f " .J The Employer took the posItIOn that, smce there IS no unclassIfied work aVaIlable, the gnevor IS only entItled to the monetary eqUIvalent of a SIX month contract. The posItIon the gnevor was seekIng m 1994 was filled by the lateral. transfer of a full-tIme classIfied employee There have been no further vacanCIes at the Mamtowanmg office. The pOSItion the gnevor was offered on a temporary basIs m KIrkland Lake was a desIgnated bIlmgual posItIOn that the gnevor would not have qualified for m a competItIOn. There were no unclassIfied contracts m the Sudbury office at that tIme and the two temporary vacanCIes that dId occur m 1996 were never backfilled, The Board ordered that the gnevor was entitled to a SIX month contract or the eqUIvalent. There IS no entitlement beyond that contract because there were no other posItIOns for WhICh the gnevor was qualIfied, clasSIfied or unclassIfied, whIch would have contmued hIS work assIgnment beyond that SIX month penod. GIven the remoteness of further contract renewals, the Employer took the posItIOn that, to place the gnevor m the posItIOn he would have been m but for the breach, the Employer IS only oblIgated to pay hIm the eqUIvalent of a SIX month contract of employment as a ProbatIOn and Parole Officer The Employer argued that thIS case IS dIstmgUIshable on Its facts. The work the gnevor was domg was not ongomg as m the Miller and McPhail case (supra) The gnevor's contract were always mtended to fill speCIfic vacancIes whIch, as thev became filled, no longer reqUIred hIS serVIces. There was no conumtment for future contracts or for full-time clasSIfied work, as m the Miller and McPhail case -- - --- . .. . .t 4 DECISION The Board, m the award on the ments, found that the gnevor's contract was not renewed because of bad faIth, It recogmzed, however, that CIrcumstances m the publIc sector made It almost Impossible to speculate about the future employment m any posItIOn many mmIstry The submIssIons of the partIes, havmg been prepared wIth the benefit ofhavmg lIved through the months followmg the gnevance, show that uncertamty was reasonable The pOSItIOn the gnevor held was filled WIth a full-tIme classIfied employee pursuant to the lateral transfer proVISIon of the collectIve agreement. There were no other unclassIfied pOSItIOns the gnevor would have been able to fill at the tIme. The temporary aSSIgnment he was gIven had been desIgnated a bIlmgual pOSItIOn that he could not have qualIfied for m a Job competItIOn, There were no other vacanCIes he could clarm, The gnevor was not demed an opportumty to become a clasSIfied employee because of hIS nnproper termmatIOn, unlike the gnevors m the case relIed on by the partIes. There were no such opportumtIes after hIS contract expIred, In the CIrcumstances, hIS remedy IS limIted to the one SIX month contract he was demed as a result of the Employer's actIOns. S mce the tlme has long past when there mIght have been a pOSItIOn for hIm and there are no unclaSSIfied pOSItIOns to offer hIm at thIS tIme, he IS entItled to the monetary eqUIvalent of SIX months pay, mcludmg applIcable benefits, If any, and mterest calculated m accordance WIth the Hallowell House formula, I I As well, smce the Board determmed that the deCISIOn not to renew the grievor's contract was done I I m bad faIth and not based on any cntIcIsms of hIS performance as a ProbatIOn and Parole Officer, -- .. ,. . 'I 5 the Employer IS dIrected to amend hIS records, mcludmg any Employee SeparatIonlW ork Performance Record, that would suggest the gnevor would not be consIdered for re-hIre If he should apply to thIS Mimstry for employment. g-z.{ Dated thIS.~ day of June, 1998 J t2f~6c ~ oretta Mikus, Vice-CharT