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Home My WebLink About2011-2762.Jordan.12-07-17 DecisionCrown 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#2011-2762, 2011-2763, 2011-2801 UNION#2011-0224-0009, 2011-0224-0010, 2011-0224-0011 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Jordan) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Tim Mulhall Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Greg Gledhill Ministry of Government Services Centre for Employee Relations Employee Relations Advisor HEARING DATE May 22, 2012. - 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] 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 - 3 - 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 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 - 4 - larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances. [9] Mr. Steve Jordan filed three grievances that touch upon his allegation that he was forced to resign his position as a Correctional Officer. He had been working in an accommodated position at the Owen Sound Jail and, in accordance with the terms of a Memorandum of Agreement between the parties, he was given the option to work at CNCC or laterally transfer. [10] According to Mr. Jordan he wanted to go to CNCC but was concerned about whether his accommodation needs could be met. He went to CNCC and met with the Deputy Superintendent to discuss his concerns. He also asked various members of the Transition Team about whether he would be accommodated if he moved to CNCC. [11] After some discussions that left the grievor frustrated, he decided to retire rather than “face another fight with the Employer about accommodation.” He was of the view that the Employer should have agreed in advance that he would be accommodated given that it knew of the historical issues regarding his accommodation. [12] The grievor was concerned about new working conditions upon moving to a different facility. He was of the view that he ought to have been assured of accommodation at CNCC prior to leaving the Owen Sound Jail. [13] It might well be that the grievor could have been accommodated at CNCC. Perhaps he could not have been but his failure to transfer to CNCC and formally request accommodation puts him in the position of being unable to satisfy this Board that the Employer failed to accommodate him. [14] The duty to accommodate is a significant obligation and a determination as to whether an employer has met this duty is based on the individual fact situation. In this case, the grievor was worried that he might not be accommodated or that he would have to engage in some lengthy - 5 - process to obtain an accommodation. Simply put, I have no evidence that the Employer failed to provide the grievor with a required accommodation at CNCC. I understand that the grievor wanted assurances in advance but that is not how the process of accommodation is managed. [15] Accordingly, I cannot uphold his grievances. Dated at Toronto this 17th day of July 2012. Felicity D. Briggs, Vice-Chair