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HomeMy WebLinkAbout2009-0778.Fraser et al.10-06-22 Decision Commission de Crown Employees Grievance règlement des Settlement Board griefs des employés de la Couronne Suite 600 180 Dundas St. West Bureau 600 Toronto, Ontario M5G 180, rue Dundas Ouest 1Z8 Toronto (Ontario) M5G Tel. (416) 326-1388 1Z8 Fax (416) 326-1396 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2009-0778, 2009-1021, 2009-2862 UNION#2009-0323-0002, 2009-0411-0167, 2009-0440-0054 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fraser et al) Union - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFOREVice-Chair Felicity D. Briggs FOR THE UNION Stephen Giles Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Greg Gledhill Ministry of Community Safety and Correctional Services Staff Relations Officer HEARING January 7, 2010 and June 4, 2010. - 2 - Decision [1]In September of 1996 the Ministry of Correctional Services notified the Union and employees at a number of provincial correctional institutions that their facilities would be closed and/or restructured over the next few years. On June 6, 2000 and June 29, 2000 the Union filed policy and individual grievances that alleged various breaches of the Collective Agreement including Article 6 and Article 31.15 as well as grievances relating to the filling of Correctional Officer positions. In response to these grievances the parties entered into discussions and ultimately agreed upon two Memoranda of Settlement concerning the application of the collective agreement during the ?first phase of the Ministry?s transition?. One memorandum, dated May 3, 2000 (hereinafter referred to as ?MERC 1? (Ministry Employment Relations Committee)) outlined conditions for the correctional officers while the second, dated July 19, 2001 (hereinafter referred to as ?MERC 2?) provided for the non-correctional officer staff. Both agreements were subject to ratification by respective principles and settled all of the grievances identified in the related MERC appendices, filed up to that point in time. [2]While it was agreed in each case that the settlements were ?without prejudice or precedent to positions either the union or the employer may take on the same issues in future discussions?, the parties recognized that disputes might arise regarding the implementation of the memoranda. Accordingly, they agreed, at Part G, paragraph 8: The parties agree that they will request that Felicity Briggs, Vice Chair of the Grievance Settlement Board will be seized with resolving any disputes that arise from the implementation of this agreement. - 3 - [3]It is this agreement that provides me with the jurisdiction to resolve the outstanding matters. [4]Both MERC 1 and MERC 2 are lengthy and comprehensive documents that provide for the identification of vacancies and positions and the procedure for filling those positions as they become available throughout various phases of the restructuring. Given the complexity and size of the task of restructuring and decommissioning of institutions, it is not surprising that a number of grievances and disputes arose. This is another of the disputes that have arisen under the MERC Memorandum of Settlement. [5]When I was initially invited to hear theses transition disputes, the parties agreed that process to be followed for the determination of these matters would be virtually identical to that found in Article 22.16.2 which states: The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise. [6]The transition committee has dealt with dozens of grievances and complaints prior to the mediation/arbitration process. There have been many other grievances and issues raised before me that I have either assisted the parties to resolve or arbitrated. However, there are still a large number that have yet to be dealt with. It is because of the vast numbers of grievances that I have decided, in accordance with my jurisdiction to so determine, that grievances are to be presented by way of each party presenting a statement of the facts with accompanying submissions. Notwithstanding that some grievors might wish to attend and provide oral evidence, to date, this process has been - 4 - efficient and has allowed the parties to remain relatively current with disputes that arise from the continuing transition process. [7]Not surprisingly, in a few instances there has been some confusion about the certain facts or simply insufficient detail has been provided. On those occasions I have directed the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In each case this has been done to my satisfaction. [8]It is essential in this process to avoid accumulating a backlog of disputes. The task of resolving these issues in a timely fashion was, from the outset, a formidable one. With ongoing changes in Ministerial boundaries and other organizational alterations, the task has lately become larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances. [9]Occasionally grievances filed from different Ministries come to the ?transition table? because of the facts that give rise to their filing. These are three such grievances. There is no dispute between the parties that I have the jurisdiction to hear and determine these particular matters. [10]In December of 2008 an agreement was reached between the parties allowing fourteen Developmental Services employees who had completed COTA training to be re-classified as Correctional Officers. The agreement also included the names of the fourteen employees. [11]Jane O?Donnell, Peter Fraser and John Cahill were surplussed from the Ministry of Community and Social Services in the fall of 2008. The grievors were not included in the list of the fourteen employees named in the above- mentioned agreement. Further, none of the grievors had completed the COTA training as of the date of the signing of the agreement. - 5 - [12]It is the grievors? contention that they made every attempt to attend the October 2008 COTA training. However, the class was full and they were put on a standby list. The Union submitted that the failure of the grievors to be COTA trained at the time the agreement between the parties was signed was beyond their control and accordingly they should be included in that agreement. [13]While I am sympathetic to the grievors? frustration, I cannot uphold this grievance. The parties were clear that only people who had completed the training were to be offered Correctional Officer positions. Indeed, the actual individuals were named. The grievors were not on that list and there was no obligation upon the Employer to offer the grievors Correctional Officer work. [14]Therefore the grievances are dismissed. nd Dated at Toronto this 22 day of June 2010. Felicity D. Briggs, Vice-Chair