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HomeMy WebLinkAbout1985-1296.Broll.88-06-17. . . . 1296/85 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT .- Before THE GRIEVANCE SETTLEMBNT BOARD Between: Before: For the Griever: OPSEU (Susan Broil) Griever and The Crown in Right of Ontario (Ministry of Community & Social Services) Employer A. Barrett Vice-Chairman J. Solberg Member G. Milley Member B. Rutherford COUllSel Gowling and Henderson Barristers and Solicitors For the Employer: E. Maksimowski Counsel Legal Services Branch Ministry of Community & Social Services Hearing: November 2, 1987 a DECISION The grievance in this matter alleges "unjust transfer to Ajax office". The remedy requested is "remain at present headquarters" as a primary claim, and an alternative claim expressed as follows: "To be compensated for additional travel expenses from Oshawa office to the Ajax office." The Ministry raises a preliminary objection to our jurisdiction to hear this grievance. Employer counsel argues that "transfers" are not dealt with at all either in the Collective Agreement or the Crown Employee's Collective Baraining Act, and this grievance is therefore non-arbitrable. The right to assign work is within the exclusive function of the Employer pursuant to section18of the Act which is incorporated into the Collective Agreement. - Union counsel points to section 7 of the ‘Act and says that the Union - is authorized to bargain with the Employer on many subjects, including transfers, and transfers are not therefore within the exclusive function of management. We heard extensive argument on the issue of arbitrability, reserved on that point, and heard evidence on the merits. At the end of the argument on the preliminary objection, Union counsel advised thatthe grievor was abandoning the first part of her claim as set out in the grievance because she is happilly relocated in Peterborough and no-longer has any connection with either the Oshawa or the Ajax office. Only the second part of her claim remains, that is: to be compensated for additional travel expenses from Oshawa office to the Ajax office during the period of time that she worked out of the Ajax office between November 22nd, 1985 and October lst, 1986. The grievance accordingly reduces itself to a mileage claim only,which is covered under Article 22.1 of the Collective Agreement, and set out below: " ARTICLE 22 - MILEAGE PATES EXPRESSED IN XILOMRTRES 22.1 If an employee is required to use his own automobile on the Employer's business the following rates shall be paid effective April 1, 1985: Kilometres Driven Southern Northern Ontario Ontario 0 - 4,000 km 25.5C/km 28.OClkm 4,001-10,700 km 22.oe/!uo 22.5C/km 10,701-24,000km lB.OC/km 18.5C/km over 24,000 km 15.5e/km 16.Oo/km n Once the grievance was thus reduced to a mileage claim, the preliminary objection to arbitrability of a claim of,"unjust transfer" becomes redundant, and so we make no ruling on it. The grievor has been employed by the Ministry since 1974 in various jobs. In 1976 she became a Community Program Co-ordinator operating out of the Oshawa Probation office. As a result of her excellent work performance the grievor was seconded to various other units for special projects in Eastern Ontario and Toronto between 1982 and 1985. The terms of secondment ranged from six months to one year and in each case was described as a temporary assignment with an anticipated return to her Oshawa job at its conclusion. Where these assignments were further from the grievor's home than Oshawa, she was paid a mileage allowance for the extra distance travelled fromoshawa. At all times the grievor thought her job in Oshawa was being held for her, but.she learned in or about January 1985 that it had been filled by someone else. She - 3- complained about this and was offered two other alternative jobs, which she did not want. Finally she obtained a guarantee that her old job would be restored to her in the Oshawa office as a Community Program Co-ordinator. When she arrived back in the Oshawa office in the summer of 1985, she found that her.job was a shell of its former self. Whereas before she had been in charge of a largevolunteerprogram, foster care, and community services, these functions had now faded away from the job. The job was not as interesting or involving as it had been, so the grievor grieved the loss of her job functions. As a result of the negotiations surrounding this grievance, the grievor discovered that there was an opening for a Probation Officer in the Oshawa office and she requested and received that job. The maximum pay for Probation Officers is slightly less than the maximum pay for Community Program Co-ordinators, but the grievor did not object to being red-circled at her present rate. The Durham Region Probation office consists of a large Oshawa office and a~smaller satellite office in Ajax; both supervised by Teresa Deuzeman, out of the Oshawa office. In the course of deciding which caseload to assign the grievor, a convenient assignment arose. One of the Probation Officers in the Ajax office was to go on maternity leave in November 1985, and it seemed appropriate to all concerned that the grievor train with her during September and October, then take over her caseload for the duration of her maternity leave. The memo announcing the grievor's appointment dated August 26th, 1985 read as follows: l -4- ' Re: Susan Broil Complement I wish to advise that I have had a conversation with John Poch in regards to Susan Broll. He has received my memo, and has spoken to Fred Purificati regarding the possibility of Susan becoming a probation officer in this office. Mr. Purificati has approved the request, and I have been advised that the vacancy,in this office can be lifted. I am asking that S. Broll's complement be transferred to fill that vacancy, and that Doug Brown be maintained for contract. It is my intention to assign S. Broil to a caseload when E. Schmelzle goes on maternity leave. S. Broil will continue to co-ordinate the Volunteer Programme for this office, and will do the Barrier exams. Susan has requested that the grievance procedure be terminated at this point. Thank you for your co-operation in this matter. T. Deuzeman, Supervisor Probation Services 650 King St. E. Ste. 204 Oshawa, Ont. LlH lG5 Tel: 416-723-1119 R.D:c c-c. - J. Poch, Program Mgr. - S. Broll - 'File II It is to be noted that the grievor was to continue to co-ordinate the volunteer program in Oshawa while taking over E. Schmelzle's caseload when she went on maternity leave. The grievor says that she believed at all times that this assignment to Ajax was to be temporary and to cover only the duration of the maternity leave which she thought would be three months. - 5 - During her on-the-job training with Ms. Schmelzle in October, 1985 the grievor discovered that another Probation Officer, Doug Brown, who was a contract employee, lived dloser to Ajax than she did and she asked Ms. Deuzeman to switch their caseload.assignments so that she could work out of the Oshawa office and Mr. Brown could cover Ajax. At this time she was advised by Ms. Deuzeman that the assignment to'the Ajax office was of a permanent nature and that she must remove her furniture and effects from the Oshawa office and take them to Ajax. In the meantime, Ms. Schmelzle had not removed her furniture and effects from the Ajax office, presumably with a view to returning after her maternity leave. As a result of these developments, the grievor claims mileage from the Oshawa office to the Ajax office for the:. period of time aforementioned~tihenshe actually worked in the Ajax office; that is between November 1985 and October 1986. She says that at all times Oshawa was her headquarters and the employer is required to pay mileage expenses for employees who are temporarily transferred away from their headquarters either for the.benefit of the employer or for the mutual benefit of the employer and employee. The grievor relies upon a Grievance Settlement Board decision in the grievance of Muscatello, number 762/83. In that case a Board chaired by G. u Brent found that the employer was required to reimburse an employee for travel expenses when he was temporarily assigned to an institution some 24 kilometres from his headquarters for a period of six months as part of his job training and career development. The Board found that it was not fair and equitable to allow the employer to defeat any obligation which it may have to pay for travel expenses in connection - 6 - with internal staff development assignments by means of redesignating an employee's headquarters. In this case the grievor claims that she agreedtotake over Ms. Schmelzle's caseload during her maternity leave primarily to benefit the employer and prevent the disruption of other peoples! caseloads~thatan Oshawa assignment would have occasioned. The grievor felt at all times that her assignment was to be temporary and that at its conclusion she would return to Oshawa. The Employer on the other hand says that this was an assignment clearly located in the Ajax office which was offered to and accepted by the grievor. The Employer says that anyone taking over an assignment located in Ajax ought to know that the location continues with the caseload. The only issue then is was this assignment to the Ajax office a temporary or permanent assignment? We heard evidence that jobs in the Ajax and Oshawa office are posted separately, and you apply for one or the other. We also note that the grievor was expected to continue with the volunteer program at the Oshawa office, although it turns out that that program had so disintegrated that there was really nothing much to be done in the area. Ms. Schmelzle's job was not posted as a permanent opening as it should have been if that's what it was. Accordingly we must conclude that it was a temporary assignment,. and,~.the.~emp.loyer sh,ould have honoured the grievor's claims for travel expenses between the Oshawa and Ajax offices. We will remain seized of jurisdiction in this matter in the event there is any difficulty calculating the mileage claim and implementing the Award. DATED at Toronto this17th day of June, 1988. &@ Anne Barrett, Chairman J. Solberg, J Member G. Milley, ' Member