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HomeMy WebLinkAbout1987-2542 Van Der Akker 89-01-17EMPLOYES DE LA COUHONNF DE L ON TAR/@ GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STMET WEST, TORONTO, ONTARIO. MSG 128-SUITE2100 180, RUE DUNDAS OUEST. TORONTO. (ONTARIO) MSG 128 -BUREAU 2100 IN THE MATTBR OF AN ARBIRUTIOH Under THE CROWN BMPLOYEBS COLLECTIVE BARQAIlfIlfG ACT EWf ore THE GRIEVANCE SETTLEYIIBXC BOARD Between : OPSEU (Van Dcr Akkcr) Grf evor The Crown In Rlght of Ontario (Ministry of Correctional Services) Employer Before: B. Flsher I. Freedman D. Montrose Vlce-Chalrper~on Uember Member For the Grlevor: I. Roland Counsel Gowllng and Fenderaon Barristers and Soiicltors 'For the Employer: C. Taylor' Staff Relations Officer Fuman Resources Sec~~tarlat Hearings: DECISION The grievor is a Correctional Officer 2 at the Maplehurst Correctional Centre in Milton. Tbe grievance states as follows: I grieve that on December 18 1987 1have been exposed to hmarrmtw by Mr. A.E. dearl~vein the sense o repeated disaimihatory use of mctw: *&stTto unit4 in msignrnents according to 7.IS ljh and dis ikesfor them In essence, this grievance involves a complaint by the grievor that be was assigned certain work duties contrary to a shift schedule. There was a shift schedule in place at Maplehurst which designated not only the hours of work of the employee but also the work location. On December 18, 1987 the work location of the grievor was changed without notice and apparently as a result of that change the grievor became ill and did not work. The grievor claimed that the change in the work assignment was a form of harassment and claimed that he is entitled to receive full compensation for the shift that he missed due to his illness. The employer brought a preliminary objection on the basis of lack of jurisdiction of the Board to hear this grievance. Oral reasons were given at the close of the hearing upholding the objection and therefore, dismissing the grievance with written reasons to follow. The Union's position is that Article 10of the Collective Agreement entitled "Shift Schedules" applies to this case and since the employee was not given proper notice of the change in his shift, there has been a violation of the Collective Agreement. However, in order for this theory to be correct, it must be found that the purpose of Article 10was not only to regulate the time in which an employee worked but also the content of his work assignment. It was admitted by the Union that the work assignment given to the grievor, contrary to the shift schedule, was within his job description and in fact it was agreed that at various times during the schedule the grievor would perform the work that he objected to. Management relied on the case of Tsiamg 352/81, (Jolliffe, Vice-Chairperson). This was a casein which the grievor was complaining that she was not given enough work in relation to a certain word processing machine and instead was spending the bulk of her time on a telex machine unlike the other people in her similar category. At page 8 of that decision, the following words . . are found, We have not been reed to any language therein whiclz would re ire the employer to assi to a gn'evor a 'Ifair share " ofie word processin wor&noigned to incumbents of the position fescribed in Exhibits #3 and #4 nor do we find the Agreement. 9prvvbion to that effect andwhere in deed it k unlike or at least, doubtful that the pades could I & agree to such a requirement. The Act spec$ia resemes to the employer's certain exclusive n' hts set out in sub-section 1 of Section 18 of the Crown 6mployees Collective Bargaining Act. .. In assigning to Ms. Ts less word processing than what b assigned to othenTe employer, m our view, k exerrkin the function of "organization, assignment ... work met ffoh and procedures, kinds and locations of e ipment... training and development" referred to in iection 18(1). How these things aredone may often be regarded @.some as arbitmy, unfair or meqwtable, but they arem law and inpmctice part of a management functlon This Board wholly adopts the statement of law referred to above. It is clear that the purpose of Article 10is to compensate employees for changes in the time that they are required to work, not of the content. The content of their work is an exclusive management function insofar as it properly forms part of the job description of the position. Similarly, there is no terminology with respect to "harassment" in the Collective Agreement and this allegation itself cannot form the basis of a grievance unless there is also a specific violation of the Collective Agreement upon which a grievance is based. Even if there was jurisdiction, this grievor would not be entitled to any relief beclue a violation of Artide 10 rimply a-oLu tk,lr,ir required to pay a premium if the shift is changed with less advanced notice than required by the section. However, the remedy of a premium is only available to an employee who actually works the shift. In this case, the grievor became ill presumably as a result of the content change in the shift and was paid his full sick leave entitlement. Even if there was jxrisdicrior, there would be no financial remedy available to the grievor. Therefore, for the reasons referred to above, the grievance is dismissed. Dated at Toronto, this 17th day of January , 1989. &&, . ree man, em er *T)&-.-. . . on rose, m er