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HomeMy WebLinkAbout1985-0292.Sawhney.89-07-18EMPLOYt‘S DE LA CO”RONNE DEL’ONTARIO CPMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS 0292/85 IN THE mTTER OF AN ARBITRATION Under TRE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETT&EMENT‘BOARD Between: Before: OPSEU (Sawhney) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer J.W. Samuels Vice-Chairperson H. O'Regan Member H. Roberts Member For the Grievor: R. Ross Wells Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Emplover: I. Werker Staff Relations Officer Staff Relations Branch Management Board of Cabinet Hearinq: June 20, 1989 2 &veral months ago, this Board issued a preliminary award in this matter, dealing with several matters which were raised by the Ministry at the outset of our hearing. This award deals with the merits of the grievance. The grievor claims that, in 1984, after he returned from a leave on Long Term Income Protection, his rights under Article 24 of the collective agreement were violated. Article 42.10 (Article 41.10 at that time) provides that an employee returning from LTIP shall be treated as a surplus employeeunder Article 24 (which provides for job security). The grievor claims that, as a surplus employee, he should have been put into the position of Property Administrator which was posted during the summer of 1984. and for which he applied. The issue in this case is whether Mr. Sawhney,was a bargaining unit employee at the time. The Ministry argues that he was not, and therefore that he did not have rights under Article 24 of the collective agreement. At the end of our first day of hearing, the Ministry said that it would raise Cobjection that, in his grievance, Mr. Sawhney did not suggest a violation of Article 24, but rather was claiming that he should have been successful in the job competition for the posted position. In the Ministry’s view, this was a job competition case, not an Article 24 case.. The issue would~ be whether or not the grievor should have been selected over the successful candidate for the position. When we reconvened on June 20, the Ministry had new representation. Counsel for the Ministry informed us that the Ministry was no longer raising this objection. The Ministry now accepted that the grievance did make a claim under Article 24. Furthermore; the Ministry conceded that, if the grievor was a member of the bargaining unit, he ought to have been put in the Property Administrator position. 3 Now the Ministry’s sole argument, was that the grievor was not a member of the bargaining unit in the summer of 1984. We will turn to this issue. The grievor came to the Ministry in 1974 as a Clerk 5. In 1975, he was promoted to Clerk 7, a classification which was at that time. in management. In 1978, the grievor was involved in the first of two tragic car accidents. This first one sent him off work on Long Term Income Protection (LTIP). He would remain on LTIP until 1983. In June 1980, the grievor received a letter from Mr. J. C. Thatcher, then the Deputy Minister, telling him that his position was now h he bargaining unit, and that henceforth his interests would be represented by the Union. .This letter read: RE: Status - Crown Employees. Collective Bargaining Act For some years your position has been excluded from collective bargaining and has been included in what is bften referred to as the "Management" group. In 1972, however, The Crown Empldyees Collective Bargaining Act was enacted to govern and regulate the collective bargaining activities ~of Crown employees and set,out in law, for the first time, specific criteria for exclusion from the bargaining unit. Following the introduction of this Act, a review was commenced by the Ministry, the Civil Service Cotiission and the Union withy respect to the continued excl&.ipn of your position and many other positions'in the service. It has nbw been determined that your position does not ,. meet the exclusion criteria of the Act and, therefo~re, Your position will be included in the bargaitiing unit, +presented bY the Ontario Public Service Employees Union. This means that the Union will be authorized ,to--bargain on your behalf,. and on behalf of others in positions similar to yours, with respect to terms and conditions of employment. 1 &ld like to stress that the resulti'tig transfer of,your position into the bargaining unitdoes not reflect, in any way, upon '.either your status as an employtie or your continued value as an enployee with the Ministry. What it does mean 7s that you will now : 4 be represented by O.P.S.E.U. for collective bargaining.purposes and are entitled to engage in collective bargaining under the provisions of The Crown Employees Collective Bargaining Act. Some other specific det&jls of your transfer to the bargaining unit are as f0110Ws: 1) Upon transfer, you will receive the salary increase, which was negotiated.with the O.P.S.E.U. for the class .U. for the class and category into which your position will be placed. will be placed. The revision will be effective from March 1, 1980. 0. There will be no change in your hours of work schedules work schedules on transfer. . 2) 'As of your actual date of.transfer; you will be covered by the collective agreement between the parties (Management Board of Cabinet & O.P.S.E.U.) with respect to terms and conditions of employment. ' At that time;dues deduction will commence and the change to bargaining unit benefit coverage will be implemented. 3) .If you.were hired.after October 26, 1969, you are obliged to pay Union dues which at present are $6.00 bi-weekly. If you were hired prior to October 26, 1969 and you did not exercije the option~to pay dues at that time, you arg,not obliged to do so now. 4 ') Payment of dues does not mean that you automatically become a member of 0.P.S.E.U.~ Whether you choose to become a member or not is your decision and membership is not a condition of employment. The O.P.S.E.U. ' office is located at 1901 Yonge St.,. Toronto. If you have any questions about this change, our Personnel Branch will be pleased to discuss this with you. _ . . . At the time, the Civil Service Commission and the onion were in the process of determining which employees, positions, or wholeclassifications ., ought to be taken out of the excluded category under the Crown Employees Collective Bargaining Act and moved into the bargaining unit. It had been decided that the position Mr. Sawhney occupied before her went off on LTIP should be moved to the bargaining unit. However, the policy of the Civil Service Commission was not to transfer an individua1 who was off on LTIP. The Commission had informed the Ministries of this policy. According to this policy, though Mr. Sawhney’s former position was transferred, he was. to remain a management employee. However, it was up to each Ministry to effect the transfer of its own employees. From the testimony we heard, and the documents which were presented in evidence, it appears that the Deputy Minister of Government Services sent the letter quoted above to Mr. Sawhney in June 1980. The letter was not dated in type (there is a handwritten “06.19.80” on it), nor was there any address. on it other than the greeting “Dear Mr. Sawhney”. However, Mr. Sawhney recalled receiving the letter while he was on LTJP, and the envelope, which he kept, was addressed to him and bore 17c postage, which was the first-class rate in 1980. Counsel for the Ministry argued that, because the policy of the Civil Service Commission was not to transfer employees on LTJP, the grievor ~.. could not have received the letter in 1980. But the evidence is all against the Ministry. The Ministry itself produced a document authorizing the deduction of union dues from Mr. Sawhney’s pay.. This document is dated June 19, 1980, and is signed by an employee in the Ministry’s Personnel Branch. We were given the pink copy which goes to the personnel file. The white copy goes to the employee, and the Ministry does not have the white copy any longer. It appears to us that the Ministry was treating Mr. Sawhney~ as having been transferred to the bargaining unit. In fact~the Ministry did not deduct Union dues from some of the payments made to Mr. Sawhney in late 1983 after he had returned from LTIP, but Union dues were deducted from contract payments made to him in early 1984. He was not ‘i 6 transferred into the bargaining unit on the computer payroll system (IPPEBS). In our view, Mr. Sawhney received the transfer letter in June 1980. This was only one of the steps which ap,pears to have been taken to effect his transfer. We conclude that the transfer letter was the act of the Deputy Minister and that Mr. Sawhney was moved into the bargaining unit in June 1980. In March 1983, the grievor felt he was fit to return to work. Her presented himself at the Personnel Office of the Ministry. In the opinion of the Ministry and the Civil Service Commission, Mr. Sawhney was still a management employee. He was treated as a management employee returning from LTIP. Therefore he was considered to be a “surplus” management employee and the Commission looked for a position for him in management. When the position for a Property Administrator, which~ is the focus of the grievance, was posted, Mr. Sawhney applied. This was a position in the bargaining unit. Mr. Sawhney was considered to be simply a regulars candidate, and not a “surplus” employee within the bargaining unit with tights under Article 24. He was not successful in the job competition. Given our fmding that Mr. Sawhney was a member of the bargaining unit at the time, he ought to have been treated-as a surplus employee under Article 24. If this is the case, the Ministry concedes that he ought to have been put into the position of Property Administrator. In November 1986, Mr. Sawhney was involved in his second car accident. Now he is confined to a wheelchair. He cannot do. the Property Administrator’s job. 7 We order the parties to work out an appropriate remedy for Mr. Sawhney, including monetary compensation and consideration of employment for him, in order to put him in the position he would have been in (financially and in terms of employment) had he been treated as a bargaining unit employee since 1980. With respect to financial compensation, the parties should take into account: --the salary and benefits Mr. Sawhney would have enjoyed as the Property Administrator during the period he was able to do the job, --the employment and remuneration which Mr. Sawbney might have had after his second accident, if he had been treated as a member of the bargaining pit, --any monies earned by Mr. Sawhney from employment after the date of the competition for the Property Administrator position, --Mr. Sawhney’s efforts to find. gainful employment in order to mitigate his losses, --interest at an appropriate rate on any monies which should have been paid to Mr. Sawhney, from the date on which any sum should have been paid to the date on which it is paid, --any other matters relevant. to’ a determination of the financial position Mr. Sawhney would have been in today if he had been treated as a member of the bargaining unn at the time of the competition for the Property Administrator position. With respect to future employment, if Mr. Sawhney is able to work now, he. should be treated as a surplus employee in the bargaining unit pursuant to Article 24 of the collective agreement. .- -. / 1 We will remain seized to deal with .any issue arising out of this order. Out-of anabundance of caution, and to ensure that this matter is put to rest without too much further delay, &e will reconvene on January 8 and 9, 1990, if necessary, to hear evidence and argument concerning any such issues. Done at London, Ontario, this 1 at h day of J,, I y , 1989. Vic&-Chairperson 1 8 “&iG$~~ ‘-” H. Roberts, Member