HomeMy WebLinkAbout2007-1682.Jolicoeur.10-08-06 Decision
Commission de
Crown Employees
Grievance
règlement des griefs
Settlement Board
des employés de la
Couronne
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180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
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GSB#2007-1682
UNION#2007-0228-0050
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Jolicoeur)
Union
- and -
The Crown in Right of Ontario
(Ministry of Attorney General)
Employer
BEFOREFelicity D. Briggs Vice-Chair
FOR THE UNIONStephens Giles
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYERPeter Dailleboust
Ministry of Government Services
Legal Services Branch
Counsel
HEARING
March 18, July 30, 2010.
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Decision
[1]In the collective bargaining negotiations that took place in 2005, the
parties agreed to insert a new Appendix 32 into the Collective
Agreement. That provision provided for a change of status for a number
of employees from fixed term to the new category of ?flexible part time?
(hereinafter referred to as ?FPT?). At the outset the Employer referred to
this initiative as the ?Revitalized Workforce Project? (?RWP?). As of January
1, 2008 it has been commonly known as ?Integrated Labour Relations
Strategy? or ?ILRS?.
[2]This change brought about many employee questions and ultimately, a
number of disputes/grievances.
[3]By all accounts, there were a number of areas in the initial language of
Appendix 32 that required clarification. Accordingly, in an effort to
continue to work together through many of the identified problem areas,
the parties negotiated a series of agreements regarding the various
matters needing to be addressed. Additionally, in an ongoing effort to
resolve outstanding issues that continued to arise, amendments were
made to Appendix 32 in the next (and now current) Collective Agreement.
[4]On September 13, 2007, the parties agreed to a number of amendments
in a fairly comprehensive Memorandum of Agreement. This Agreement
resolved the identified disputes that had been outstanding and further
recognized that future grievances might arise. In large measure, the
amendments agreed upon in the September 13, 2007 Memorandum of
Agreement were incorporated into Appendix 32 of the current Collective
Agreement.
[5]Since September of 2007, approximately two hundred grievances have
been filed. In an effort to resolve these matters efficiently, the parties
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worked together to create a process for the efficient litigation of all
outstanding issues. To that end, a number of grievances have been
heard and decided by the Board. Those decisions have resolved a
number of outstanding matters.
[6] Given the passage of time and the number of grievances that had yet to
be determined, the parties agreed that it was in their collective interest to
further streamline the litigation process. In considering various options,
it was agreed to investigate the possibility of adopting a process similar
to that utilized by the Union and the Ministry of Community Safety and
Correctional Services regarding ?transition grievances?. Those grievances,
which were many hundred in number, were filed as the result of the
major re-organization within that Ministry. Given my experience in that
process my assistance was sought in this matter.
[7]At our hearing held on January 18, 2010, the parties agreed to a number
of issues including:
All grievances outstanding as of January 18, 2010 and those
o
filed in the foreseeable future flowing from the
interpretation, application and administration of Appendix
32 will be referred to me for determination.
While it is understood that all decisions under this process
o
will be consistent, they are without precedent or prejudice in
accordance with Article 22.16.2.
I will determine the process to be followed for the litigation
o
of these matters.
[8] The process for the litigation of the remaining grievances should be
efficient and provide a timely and appropriate final resolution. In arriving
at my decision in this regard, consideration was given to Article 22.16.2
which states:
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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.
[9] As was the case in the ?transition? process, there are a large number of
grievances to determine and the parties are agreed that ?traditional
arbitration? will not serve their purpose. Therefore, in accordance with
my jurisdiction to so determine, these matters will be litigated on the
following basis:
Grievances are to be presented by way of each party
presenting a statement of the facts with appropriate
documents, if any, and accompanying submissions. I
understand that in many cases, particulars have been
provided and documents exchanged. That preparatory work
should further assist efficiency.
I recognize that some grievors and managerial employees
may wish to attend and provide oral evidence. However,
given the task at hand and the time by which to do it, I order
only the committee members from each party will attend.
It may be that in a few instances some confusion might arise
regarding certain facts. It might also happen that I will find
that insufficient evidence has been provided. In those
instances, should they arise, I will direct the parties to speak
again with their principles to ascertain the facts or the
rationale behind the particular outstanding matter. In the
event I find there is still uncertainty regarding facts, I reserve
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the right to ask for viva voce evidence. It is my hope that this
need shall never arise.
Hopefully decisions can be issued within a relatively short
period of time following submissions. My decisions will
contain brief reasons and sufficient rationale so as to provide
the parties with an interpretation thereby allowing them to
move forward.
[10] Ms. Brenda Jolicoeur is a court clerk who filed a grievance dated July 17,
2007 that alleges the Employer violated various provisions of the
Collective Agreement when it failed to advise her as to whether premium
pay would be triggered for work performed on July 2, 2007.
[11] According to the Union, the grievor was on the ?Holiday Bail? rotation and
she sent a memo dated June 20, 2007 asking the Employer if premium
pay would be paid for work performed on July 2, 2007. She did not
receive a timely response. It happened that the grievor did work on July
2, 2007 and was not paid at premium rates. It was the grievor?s position
that she would not have worked on July 2, 2007 had she known that she
would not be paid at premium rates.
[12] The Employer contended that there was no provision in the Collective
Agreement at the time of the filing of the grievance regarding alternate
days or days designated in lieu of holidays. Accordingly, there was no
violation.
[13] Paragraph 4(e) of Appendix 32 now contemplates payment for work
performed on a holiday or on a day designated in lieu of a holiday as per
Article 47.2 of the Central Collective Agreement. As noted by the
Employer, there was no such provision at the time of the filing of the
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grievance and therefore there is no violation that would bring about the
upholding of this grievance and even if it did apply at the time, the
provision regarding the designation of alternative holidays does not
apply.
[14] Finally, given that the grievor is an FPT, I am unsure as to why she
thought she had the option of working a scheduled day of work
irrespective of its designation. In any event, the grievance is dismissed.
Dated at Toronto this 6 day of August 2010.
th
Felicity D. Briggs, Vice-Chair