HomeMy WebLinkAbout1987-0901.Mandar.90-12-19SElTLEMENT RkGLEMENT
DES GRIEFS
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BEFORE:
FOR THE GRIEVOR
FOR THE EMPLOYER
M. Contini
Counsel Mathews, Dinsdale & Clark Barristers & Solicitors
BEARING: Nay 18, 1988
OPSEU (Mandar)
- and - Grievor
The Crown in Right of Ontario (Ministry of Correctiona. Services)
Employer
P. Draper J. Solberg W. A. Lobraico
Vice-Chairperson
Member
Member
T. McEwan Counsel Gowling, Strathy & Henderson Barristers & Solicitors
II :
‘I I DECISION ii I,
The Grievor, Howard Mandar, grieves that he has not been ;I
credited with the length of continous service to which he is
iI entitled under Article 25 of the coliective agreement, the
relevant portions of which read: ;' 2
I 'I
25.1 An employee's length oficontinuous service will
i/ accumulate upon complet!on of a probationary
period of not more thani)one (1) year and shall
commence, I:
b) from the date on which An employer commences a
period of unbroken fulldtime service in the Public
Service immediately prior to appointment to the
classified service. il
:I
The grievance is opposed by the Employer on the grounds that it
i ! is out of time and, in the alternativ,?, that it must fail on
the merits. As to timeliness, the EmLloyer submits that the
grievance was not filed in with the provisions of
Article 27, the relevant read:
27.2.1. An employee who believe; he has a complaint or a
difference shall first discuss the complaint or
r difference with his supervisor within twenty (20)
days of first becoming aware of the complaint or
difference,
27.2.2. If any complaint or difference is not
satisfactorily settled by the supervisor within
seven (7) days' of the decision, it may be
processed within an additional ten (10) days.
In our interim decision of October 28, 1988, we-considered
only the issue of timeliness, ruling that the final disposition
of the matter'must await the decision of the Divisional Court
on the application for Judicial review of the Board's decision
in Pierre 492/86, a case in which the application of Article 27
was also argued. The Court's decision which upholds the
Board's decision, has now been reported: Ontario (Ministry of
Correctional Services) v. O.P.S.E.U., 740 R. (2L) 700.
In retrospect, we should not so readily have adopted the view
that determination of the issue of timeliness must necessarily
precede consideration of the merits of the grievance. That
practice, we believe, is not inviolable where, as here, the
grievance must inevitably be dismissed on the merits even if it
were to be found to be timely. It seems to us that, from the
perspective of the parties, it is more constructive to give
primary to the resolution of the dispute that led to the
grievance rather than to the procedural aspect of the case.
/;.
It is not in dispute that there was a break in the Grievor's I,
employment between December 5, 1983 &d October 9, 1984. The II
Grievor testified that he left his eiployment by submitting his
resignation because he was told that ibecause I of Ministry policy
he could not work in the same instit{tion, the Metro West
Detention Centre, as his brother. II Th,at information which
Ii appears not to have been a deliberate; falsehood, was later II
found to be incorrect: there is no su?h policy. The Grievor
I felt so strongly about his wish to work near his brother that
II he chose to resign. He believes he was misled into resigning
by the mistaken information he recei&d.
On being re-employed the Grievor rec$sted to be credited with
his service prior to the break in em$oyment. The request was
denied. il
Ii
It was unfortunate, to say the least,\:that the Grievor was
misinformed about Ministry policy. BF he was not told that he
could not be employed anywhere in thel/Winistry, only that he
II could not work at the Metro West Detention Centre. He would
have had open to him in the normal cobrse the option of
continuing in employment by requesting to be transferred
elsewhere in the Ministry. i Only if hp had done so and had been
refused for whatever reason could it be said that, employment
I apparently not being possible at the Wetro West Detention I
Centre and not being available to himtat any other Ministry
i location, his loss of employment and $0 of credit for prior
service was, in fact, occasioned by the incorrect information
he was given about Ministry policy.
In the circumstances, we must conclude that the Grievor
voluntarily resigned because he was not prepared to abandon his
preference as to work location in the Ministry. The
consequence is that he is not entitled to credit for service
prior to the break in employment.
The grievance is dismissed.
Dated at Toronto this 19th day of December
1990.
Vice Chairperson
l-5 J. Solberg, Membey
/J!2&6& &&&2k&4
W. A. Lobraico, Member