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HomeMy WebLinkAbout2005-2381.Grifferty.07-10-12 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 IN THE MATTER OF AN ARBITRATION Under Nj ~ Ontario GSB# 2005-2381 UNION# 2005-0430-0014 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING CONFERENCE CALL Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Grifferty) - and - The Crown in Right of Ontario (Ministry of Transportation) Richard L. Jackson Kristin Eliot Eliot Smith Barristers and Solicitors Jennifer Richards Counsel Ministry of Government Services April 26 & 27, 2007 September 11, 2007. Union Employer Vice-Chair 2 Decision This is the grievance ofMr. John Grifferty, who works for the Ministry of Transportation and Communications in Kingston, Ontario. Mr. Grifferty grieves "that I am not being given the same opportunity and training as others" and requests he be given the same opportunity and training and others, and be made whole. This grievance was heard in an expedited arbitration process in which Mr. Grifferty himself made some submissions. The background to this grievance is as follows. Mr. Grifferty has worked for the Ontario Public Service since 1983, for some years before 2001 in a position dealing with document preparation and delivery, at the OAG 6 level in the MTO, during which he was temporarily assigned (for two years) to a supervisory position; he applied for this position on a permanent basis but was unsuccessful. In 2001, he was successful in obtaining a position as revenue analyst with Ontario Shared Services, at the OAG 10 level. Unfortunately, in 2004, Mr. Grifferty's job was moved to Sudbury; he was surplus sed, and in 2005 was able to bump back into the MTO document- preparation position at the OAG 6 level. Anxious to get back to his OAG 10-level position, Mr. Grifferty has requested various opportunities for direct assignment and training, but without success. This has been understandably frustrating for him, his frustration exacerbated by the fact that certain other employees have been able to obtain temporary developmental opportunities and, apparently, remain in them for a significant length of time. (It should be noted that this issue was the subject of a group grievance that was settled between the parties.) Mr. Grifferty also applied for a supervisory position that is contained in the AMAPCEO bargaining unit but was not successful. For a variety of reasons - not least because it would have gotten him back into the supervisory role that he feels capable of fulfilling - he found this particularly frustrating, but given the jurisdictional boundaries of the bargaining units, as an OPSEU bargaining-unit member, was unable to grieve his not being selected. Thus, this is a grievance born out of intense frustration - frustration that he has been in an OAG Level 6-level position for the last two years, despite (1) having served successfully for two years as a supervisor in the very office in which he now works, (2) having served successfully in an 3 OAG 10-level for over three years, (3) having lost that position through no fault of his own but because of a governmental reorganization, (4) having unsuccessfully applied for both developmental-and-training and AMAPCEO positions, and (5) having witnessed other employees obtain temporary development positions that seemingly become de facto permanent. To be candid, I can understand the depth of this frustration. Mr. Grifferty argues that, while none of the Employer's specific actions necessarily violated any provision of the collective agreement - and there was no evidence that the Employer acted in bad faith in any of the decisions that brought about this situation - I should consider Article 9.1, which obliges the Employer: to make reasonable provisions for the safety and health of its employees during the hours of their employment. Mr. Grifferty argues that health and safety must include mental health and that it is not reasonable, in the sense of its obligation to "make reasonable provisions" under Article 9.1, for management to have put him in this situation - as a former supervisor, now underemployed and underused in his former department, a good employee who could contribute much more in a higher-level position. If it were reasonable, management would understand that an employee in this situation would have his mental health damaged. Award I must say that, in human terms, I have some sympathy for Mr. Grifferty: his situation only can be intensely distressing for him. Unfortunately, however, the arbitration process cannot provide him the remedy he seeks on that basis. For me to act, I must find that the Employer has violated the collective agreement or, failing that, that it has exercised its management rights under the agreement in bad faith. In that latter regard, as noted, there is no allegation, nor any evidence, that the Employer acted in bad faith in any of the decisions taken that contributed to his current situation. As to any employee right under the collective agreement to be temporarily appointed or seconded to any particular positions, there simply is none; thus, there is no violation of the agreement by virtue of Mr. Grifferty's failure to obtain such an appointment. 4 Mr. Grifferty argued that the Employer had violated its duty under Article 9. 1 of the collective agreement "to make reasonable provisions for the safety and health of its employees during the hours of their employment" in that it was unreasonable for an employee to be in his position - underemployed in an office where he used to be a supervisor and prevented from contributing as much as he is able. While I'm not going to argue that Mr. Grifferty should see his situation as "reasonable" in human terms, that is not evidence that the employer failed in its duty under Article 9.1. The Grievor finds himself in this unhappy position because of a confluence of factors: the Ontario government's decision to move certain positions, including Mr. Grifferty's, to Sudbury; his inability to grieve his failure to be awarded the AMAPCEO supervisory position; the issue of temporary positions becoming longer-term, now resolved between the parties; as well as the intense competition for higher-level OPSEU positions which reduces the chances of any particular individual obtaining any given position. For all of their unfortunate collective impact on Mr. Grifferty, however, these factors are all, for lack of a better word, "innocent"; that is, no one, including the employer, is at fault. In my view, there is no violation of Article 9.1 or, indeed, any other provision of the collective agreement. Given that an arbitrator has the power to award a remedy only in the event of a violation of the collective agreement, there is simply no basis on which I can act to provide the Grievor with the remedy he seeks. For all of these reasons, then, the grievance must fail. Dated at Toronto, this lih day of October, 2007.