Loading...
HomeMy WebLinkAbout2017-1603.McFadzean et al.19-01-03 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2017-1603; 2017-1604; 2017-1605; 2017-1630; 2017-1801; 2017-1928 UNION#2017-0271-0006; 2017-0271-0007; 2017-0271-0009; 2017-0271-0011; 2017-0271- 0008; 2017-0271-0012 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McFadzean et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Arbitrator FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING December 19, 2018 - 2 - DECISION [1] I have a number of grievances before me filed on behalf of four Probation and Parole Officers (“PPOs”) who work out of the Employer’s Milton Probation and Parole Office (“Milton Office”). The PPOs who filed grievances are Ms. L. McFadzean, Ms. K. Fitzgerald, Ms. L. Pashuk and Ms. K. Cahill. I was advised at the hearing that Ms. N. McAuliffe had withdrawn her grievance. Most of the grievances were filed on either June 21 or 22, 2017. One grievance was filed on August 25, 2017. The Statement of Grievance and the Settlement Desired in the two grievances filed by Ms. McFadzean are identical to grievances filed by the other grievors. Ms. McFadzean’s grievance dated June 21, 2017, reads as follows: Statement of Grievance I Grieve that my rights under the collective agreement have been violated, specifically but not limited to Article 2, 9 and appendix 30 of the collective agreement and any other legislation that may be applicable. The employer has failed to provide appropriate resources at the Milton Probation and Parole Office and the employer has expanded the duties and responsibilities of the PPO position thereby creating an unmanageable workload and expectations of duties outside the classification of a Probation & Parole Officer. Settlement Desired 1. Immediately respond to workload issue by hiring additional support staff to cover vacant position. 2. Compensation for extra work performed by PPOs due to expanded duties to cover current vacant support staff position. Ms. McFadzean’s grievance dated June 22, 2017, reads as follows: Statement of Grievance I Grieve that my rights under the collective agreement have been violated, specifically but not limited to Article 2, 9 and appendix 30 of the collective agreement and any other legislation that may be applicable. The employer has failed to provide appropriate resources at the Milton Probation and Parole Office and the employer has expanded the duties and responsibilities of the PPO position thereby creating an unmanageable workload. Settlement Desired 1. Immediately respond to workload issue by hiring additional one full time staff to bring caseload numbers down and staffing numbers to full compliment for the Milton site. - 3 - 2. Redistribute the work assigned due to the Managers decision to reassign work from a full-time PPO position. 3. Compensation for extra work performed by PPOs due to distribution of workload from vacant positions. [2] The provisions in the Collective Agreement alleged to have been contravened in the grievances are the Management Rights provision (article 2), the Health and Safety provision (article 9) and Appendix 30 Workload. Appendix 30 Workload was deleted from the collective on January 24, 2013. A Letter of Understanding which deals with the subject of Probation and Parole Officer Workload is contained within Appendix COR11. [3] The parties were unable to resolve the issues in dispute by mediation and they agreed to deal with the grievances under the procedure set out in article 22.16 of the Collective Agreement. The parties addressed the issues by providing me with two will say statements, one from Ms. McFadzean and one from Mr. G. Currie, the area manager for the Milton Office at the relevant time. The parties also provided me with other documents to support the contents of the will say statements. Neither party elected to call viva voce evidence. [4] The circumstances that gave rise to the grievances can be summarized as follows. For a period of approximately three months between mid-May and mid-August, 2017, the Milton Office experienced a reduction in staff compliment. The Milton Office is a part of the Ministry’s Central Region and it operates generally with 4 to 5 PPOs and one administrative assistant (OAG8). Ms. C. Shortt was the administrative assistant at the Milton Office. Except for a few half days in early June 2017, Ms. Shortt was away for medical reasons for many months starting on May 17. A permanent replacement for her in the Milton Office started on July 24. Between May 17 and July 23, 2017, Mr. Currie arranged for interim administrative support assistance from other offices on a sporadic basis. Sometimes an administrative staff member attended at the Milton Office to replace Ms. Shortt. At other times, administrative support was provided to the Milton Office remotely from other offices within Halton and Peel Region. - 4 - [5] Starting on June 22, 2017, PPO Cahill went off work on sick leave. To address her absence, part-time PPO Pashuk was offered and accepted a temporary full-time assignment to commence on August 14, 2017. She was unable to start full- time sooner because of prior personal commitments. The absence of PPO Cahill from June 22 until PPO Pashuk’s full-time assignment started on August 14, meant that the additional PPO workload that arose from Ms. Cahill’s absence was distributed amongst the remaining PPOs. [6] The reduced staff compliment had an impact on the workload at the Milton office. When there was no administrative assistant at the Milton office, the PPOs ended up performing many of the duties that would normally be performed by the administrative assistant. In the normal course there was always some overlap in duties performed by a PPO and the administrative assistant, but the absence of an administrative assistant at the Milton Office for many days left the PPOs with a considerable volume of administrative duties to perform in order to do their own work. The PPOs perceived the temporary support staff coverage to be a “Band-Aid” solution and inadequate to support them in performing their PPO duties. The performance of support staff duties was time consuming and meant the PPOs were faced with challenges in completing their own work in a timely manner. The workload problems due to the lack of a permanent administrative assistant increased when more PPO duties were redistributed in the office when PPO Cahill went off on medical leave. In order to complete their own assigned PPO tasks, the PPOs worked longer hours and took shorter breaks. As a result of having to deal with the increased workload, the PPOs at the Milton Office claim that they became overwhelmed with work, frustrated, and mentally and physically exhausted. They also claim that the pressure to complete their own work on time made for a stressful situation and an unpleasant work environment. [7] Ms. Shortt provided a medical note dated May 16, 2017, indicating that she would be off work until May 29. She returned to work on June 5 to work half days in the afternoons. On June 8, Ms. Shortt provided another medical note indicating that she would be off work for a minimum of 6 weeks. A further medical note on July 10 advised that Ms. Shortt would be off for a further 3-6 months. Mr. Currie quickly - 5 - submitted a business case to replace Ms. Shortt at the Milton Office. The business case was approved on July 12 and allowed Mr. Currie to hire Ms. S. Sadiq to start on July 24. She was an OPS employee with sufficient experience to perform the administrative support duties at the Milton Office once her previous placement ended on July 21. The hiring of an external candidate to replace Ms. Shortt would have resulted in a greater delay than waiting for Ms. Sadiq to start on July 24, 2017. [8] Ms. Cahill had returned from sick leave in February 2017 and was accommodated as a Pre-Sentence Report (“PSR”) writer in a return to work plan. Although Mr. Currie was generally aware that PPO Cahill had a scheduled procedure in June 2017, it wasn’t until June 1 that he became aware that her surgery would take place on June 22. Mr. Currie submitted a business case on June 7 to replace PPO Cahill. His request was approved by June 15. It wasn’t until June 21 that Ms. Cahill provided a medical note indicating that she would be off work for 3 months post-surgery. At a monthly workload meeting on June 21, Mr. Currie asked the remaining PPOs for suggestions as to how to manage Ms. Cahill’s leave. The PPOs, including the grievors, were not in favour of bringing in a new staff person. PPO Pashuk then volunteered to work full-time starting in August 2017. As noted previously, Mr. Currie offered PPO Pashuk a full-time temporary assignment which she started on August 14. The alternative to giving Ms. Pashuk a full-time assignment would have taken longer than August 14 to replace PPO Cahill. [9] Management was not unsympathetic to the increased workload in the Milton Office during the months of May, June, July and August 2017, and efforts were made to address the reduction in staff. Management did not expect the PPOs to perform all of the duties of the administrative assistant in the absence of Ms. Shortt. Management did not request the PPOs to work longer hours or to take shorter breaks. The PPOs were not disciplined or threatened with discipline for not maintaining standards during the relevant period. [10] I will very briefly summarize the submissions of counsel. Union counsel reviewed the workload issues, the reasons for them and the impact of the increased - 6 - workload on the grievors. Counsel argued that the grievors were compelled to perform many of the administrative support duties in the absence of an administrative assistant and it was not appropriate for the Employer to require them to perform this much work which fell outside of the duties of the PPO classification. Counsel also argued that the additional PPO duties the grievors received due to PPO Cahill’s absence could have been avoided if management had been more pro-active in its efforts to replace her, since it had been common knowledge for some time that she would be off work starting in June 2017. Counsel submitted the increased workload created a stressful situation for the grievors which left them mentally and physically exhausted. Counsel argued that the circumstances in this case warranted the conclusion that the Employer contravened article 9 of the Collective Agreement, the health and safety provision. On behalf of the grievors, Union counsel requested compensation for the grievors for their performance of work that they should never have had to perform. [11] Employer counsel reviewed the facts and responded to the submissions by the Union. Her primary submission was that the Union did not meet its onus of establishing a contravention of article 9 of the Collective Agreement. Counsel submitted that the grievors did not miss any time from work during the relevant period and did not become ill due to the workload. Counsel also noted that there was no medical evidence to establish that the health impacts described by Ms. McFadzean were actually caused by any increase in workload. Counsel submitted that even if the workload created health and safety risks, management made reasonable provisions to deal with any workload issues. Employer counsel also argued that the remedy requested by the Union was not appropriate and it suggested that the concern of the grievors was really a classification issue which an Arbitrator at the GSB has no jurisdiction to address. Counsel for the Employer referred me to the following decisions in support of her submissions: OPSEU (Alaksa, Polfer, Brown) and Ministry of the Solicitor General (1985), GSB No. 1130/84 (Brent); OPSEU (Baron et al) and Ministry of Community & Social Services (1995), GSB No. 2968/91 (Kaplan); OPSEU (Sager et al) and Ministry of Transportation (2004), GSB No. 2000-0377 (Mikus); OPSEU (Lafranboise) and Ministry of Community & Social Services (1997), GSB No. 2268/95 (Roberts); OPSEU (Wilson) and Ministry of Health (1996), GSB No. 2855/91 (Gray); OPSEU (Union) v. - 7 - Ontario (Ministry of Community Safety and Correctional Services, [2005] O.G.S.B.A. No. 63 (Gray); OPSEU (Watts/King) and Ministry of Correctional Services (1991), GSB No. 1367/90 (Kaplan); OPSEU (Anger et al) and Ministry of Community and Social Services (2008), GSB No. 2004-1321 (Watters); OPSEU (Press) and Ministry of Health and Long-Term Care (2007), GSB No. 2003-1461 (Mikus); AMAPCEO (Wilson) and Ministry of Natural Resources and Forestry (2017), GSB No. 2016-1556 (Dissanayake); and, OPSEU (Rosati) and Ministry of Community Safety and Correctional Services (2018), GSB No. 2015-0548 (Anderson). [12] After reviewing the circumstances of the grievances and the submissions of counsel, I am compelled to conclude that the Employer did not contravene the Collective Agreement as alleged by the grievors and the Union. Consistent with article 22.16, my concise reasons for this conclusion are as follows. [13] The issue of workload for PPOs is addressed by Appendix COR11. This Appendix contemplates a process for resolving workload issues that do not involve the filing of a grievance. [14] It does appear that the grievors believe that the Employer cannot assign them duties which do not fall within their PPO classification. The remedy the Union requested suggests that the grievors feel in part that they should not be required to perform the duties of an administrative assistant. Unless the Collective Agreement provides otherwise, the Employer can require a PPO to perform some of the duties that fall within another classification. In the instant case, the fact the PPOs were performing more than the usual amount of administrative support duties does not constitute a violation of the Collective Agreement. [15] I have no doubt that the reduction in staff at the Milton Office created a stressful situation for the PPOs. However, the Employer was not unmindful of the difficulties that could be created by employee absences for medical reasons. The Employer did not request the PPOs at the Milton Office to work longer hours or to take shorter breaks. The Employer did not threaten discipline if standards were not - 8 - maintained. It appears that the Employer, while there was a reduction in staff, simply expected the PPOs to perform the required duties as best they could in the circumstances. I appreciate that as professionals the PPOs made efforts to perform their PPO duties in a conscientious and timely manner and should be lauded for their efforts in this regard. I simply note that the Employer did not intend that the work environment to be more stressful than normal for the grievors during the time when there was a reduction in staff. [16] The relevant part of article 9.1 reads as follows: 9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. [17] It is possible that excessive workplace demands could cause stress and a significant risk to the health and safety of employees. Even assuming that there were excessive workplace demands made of the grievors by the Employer, there is not the appropriate evidence before me to establish a real risk to the health and safety of the grievors. In any event, as the decisions relating to article 9 indicate, the obligation on an employer is to make reasonable provisions for the health and safety of its employees. To the extent that the reduced staffing levels may have created an excessive workload for the grievors and therefore resulted in risks to their health and safety, I am satisfied that Mr. Currie made reasonable efforts in the circumstances to address the reduction in staff. Once advised on July 10, 2017, that Ms. Shortt would be off work for many months, he initiated a process to replace her that resulted in a replacement starting on July 24, 2017. Although he was aware in February 2017, that PPO Cahill would be off work sometime in June 2017, it wasn’t until June 2017 that he was advised about the length of her absence. He then made efforts to secure a replacement and in doing so he sought the advice of the PPOs. They did not favour the hiring of someone new and PPO Pashuk volunteered to work full-time as of August 15, 2017. Although the Union argued that the Employer should have made earlier efforts to replace PPO Cahill, I am satisfied that Mr. Currie acted reasonably in securing a replacement for Ms. Shortt and for securing a replacement for PPO Cahill. It is on the basis of these considerations that I find that the Employer did not contravene article 9 in - 9 - the circumstances of this case. I find it unnecessary to comment on the remedy requested by the Union. [18] For the foregoing reasons, the grievances of Ms. McFadzean, Ms. Fitzgerald, Ms. Pashuk and Ms. Cahill are hereby dismissed. Dated at Toronto, Ontario this 3rd day of January, 2019. “Ken Petryshen” Kevin Petryshen, Arbitrator