Loading...
HomeMy WebLinkAbout2006-2241.Union.07-11-08 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 Nj ~ Ontario Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2006-2241 UNION# 2006-0369-0038 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER WRITTEN SUBMISSIONS Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Union Grievance) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Felicity D. Briggs Peter Shklanka Grievance Officer Ontario Public Service Employees Union David Strang Senior Counsel Ministry of Government Services August 24,2007. Union Employer Vice-Chair 2 Decision As of November 1,2001, the Government of Ontario contracted Management and Training Corporation Canada ("MTCC") to operate a new correctional facility in Penetanguishene, Central North Correctional Centre ("CNCC") for a period of five years. MTCC employed the majority of employees working at the jail. However, it did sub-contract out some of the work, such as nursing services to First Corrections Medical ("FCM"). When the Provincial government decided to transfer the operation of CNCC to the Ontario Public Service ("OPS") in November of 2006 the parties negotiated a Memorandum of Agreement dated September 18, 2006 ("Transfer Agreement") regarding the transfer of staff from MTCC to the OPS. In that document the parties agreed to a dispute resolution mechanism for mediation- arbitration. As a result of that provision I was asked to assist the parties with the few remaining disputes arising from the repatriation of CNCC into the OPS. The parties were successful at mediating some of the remaining disputes. However, there are a few outstanding matters. One of the issues that the parties have been unable to resolve in total is regarding offers of employment. During the discussions between the parties in preparing for expeditious arbitration of this matter, it became apparent that the parties were disparate on the standard of review appropriate in these circumstances. A decision was issued by this Board that in these unique circumstances the Employer did not have its usual broad discretion arising from Article 2 of the Collective Agreement, to hire employees subject only to reasonableness and bona fides. I determined that the criteria as set out in the Transfer Agreement were to be taken into account in deciding these disputes. 3 The Transfer Agreement contemplates a variety of conditions the parties agreed upon concerning the transfer of operations. The relevant provisions are: Whereas the parties wish to effect a successful transfer of operations of Central North Correctional Centre to the Ontario Public Service (OPS) as of the transfer date on or about November 9, 20006; Therefore the parties agree to the following prOVISIOns on a without prejudice and precedent basis: 1.0 Introduction 1.1 This agreement is related exclusively to the transfer of operations of the Central North Correctional Centre (CNCC) to the OPS, specifically to the Ministry of Community Safety and Correctional Services (MCSCS). 1.2 It is understood that the term "employees" refers to employees of MTCC who work at CNCC and who are hired in accordance with this agreement into the OPSEU represented positions at CNCC once it is transferred to the OPS. 2.0 Expression of Interest 2.1 Employees will be asked to submit a written expression of interest within five (5) working days of receiving an information package (consisting of a list of applicable positions, salaries and classifications) and consent form from MCSCS. The consent form must be signed and returned with the expression of interest. The purpose of the consent form is to transfer the employees' personnel files to allow the Employer to determine whether or not the employees meet the screening criteria and qualifications of the position, perform security/CPIC checks in accordance with MCSCS policies, and ensure eligibility to work in Canada. Screening criteria will include a review of personnel files for significant substantiated discipline. It will also include a review of short-term sick leave usage over the last 12 months to ensure that usage is on par with the Ministry average. Justifiable absenteeism will not be considered. 2.2 The Employer will advise the Union if it determines that a job offer will not be made based on a review under 2.1 above. 2.3 Employees who have been previously dismissed with cause from the OPS will not be offered positions at CNCC. 4 This Board has also issued a decision regarding two former MTCC employees and whether there was "significant substantiated discipline" sufficient to allow the Employer to withhold offers of employment. Two further disputes are scheduled to be litigated shortly. It is apparent from the submissions made by counsel that these individuals were disciplined for reasons associated with "IT abuse". In preparing for this upcoming arbitration the Union made a request for disclosure of certain documents. In that request to the Employer the Union said: The Union is seeking production of the following documentation and intends to rely on it for the purposes of establishing that the Ministry did not have sufficient grounds to find that the grievors had "significant substantiated discipline" on their files at the time of transition such as to justify the withholding of job offers; the documentation relates to the following individuals: A, B & C 1. Ministry "tracking sheets" setting out the Ministry investigator's findings and recommendations regarding improper IT use; 2. Copies of the offending materials in a viewable form (i.e. CD ROMs); 3. Particular of the discipline relating to the IT violations; 4. Particulars (or confirmation of) of the employment status of these individuals with the Ministry, pre and post-discipline. We are also seeking for the grievors items (l) and (2) as above, as well as copies of all MTC policies and procedures relating to IT violations which the Ministry asserts the grievors had been aware or prior to being disciplined for the IT violations (the Union takes the position that the grievor's had received virtually no prior warning or indication from MTC management that this type of behaviour was improper or could be the subject of discipline ). The Employer objected to the disclosing of this information. As well, it took the position that the issues contemplated in the disclosure request would be inadmissible in these proceedings. It is these issues that are addressed in this decision. 5 It was the Union's submission that in order for this Board to properly determine whether the discipline on the grievor's personnel file is "significant substantiated discipline" it must review Ministry standards and how those standards were applied including how similar cases were handled; the MTC standards and policies at the time the discipline was imposed; as well as general labour relations standards such as the Board's view of the discipline and the facts relied upon in the discipline. In order for the Board to make an appropriate determination the requested material should be disclosed and admitted into evidence. The matter of what weight this information should be accorded can be addressed by the parties in their ultimate submissions in the matter. The Employer urged that what the Union is asking this Board to do is, in effect, to "go behind the record" of these grievors, an exercise which is contrary to arbitral and Board jurisprudence. Further, the Union is also asking for the disclosure of information that is beyond that which was available to the Employer at the time it made its decision. It would be inappropriate for this Board to admit and ultimately consider the documents requested by the Union given that the Employer did not utilize them in the first instance. After reviewing the submissions and jurisprudence provided by the parties, I must agree with the Employer. I am not prepared to order the Employer disclose information that is far beyond what the Employer was entitled to utilize in its considerations. According to paragraph 2.1 of the Transfer Agreement, the Employer was to review an employees' file and determine whether it would make an offer of employment based on certain criteria including short-term sick leave usage and significant substantiated discipline. The Employer was not entitled to broaden its scope of the screening process and I cannot allow the Union to ask the Board to do so. I will consider the matter of whether there was significant 6 substantiated discipline for the two individuals at issue without going behind the record. The parties have already put before this Board various documents that one side or another thought was of assistance to determine significant substantiated discipline such as MTCC policies and the collective agreement between OPSEU and MTCC at the time the discipline was imposed. However those agreed upon exhibits are quite different from the documents that the Union is now attempting to have disclosed and admitted into evidence. Dated injronto this ,~th day of November, 2007. .. II - .,