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HomeMy WebLinkAbout2010-2129.Wellwood.13-08-28 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#2010-2129 UNION#2010-0517-0046 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Wellwood) 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 Nick Mustari Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Greg Gledhill Ministry of Government Services Centre for Employee Relations Staff Relations Officer HEARING July 5, 2013 - 2 - Decision [1] Since the spring of 2000 the parties have been meeting regularly to address matters of mutual interest which have arisen as the result of the Ministry of Community Safety and Correctional Services as well as the Ministry of Children and Youth Services restructuring initiatives around the Province. Through the MERC (Ministry Employment Relations Committee) a subcommittee was established to deal with issues arising from the transition process. The parties have negotiated a series of MERC agreements setting out the process for how organizational changes will unfold for Correctional and Youth Services staff and for non Correctional and non Youth Services staff. [2] The parties agreed that this Board would remain seized of all issues that arise through this process and it is this agreement that provides me the jurisdiction to resolve the outstanding matters. [3] Over the years as some institutions and/or youth centres decommissioned or reduced in size others were built or expanded. The parties have made efforts to identify vacancies and positions and the procedures for the filling of those positions as they become available. [4] The parties have also negotiated a number of agreements that provide for the “roll-over” of fixed term staff to regular (classified) employee status. [5] Hundreds of grievances have been filed as the result of the many changes that have taken place at provincial institutions. The transition subcommittee has, with the assistance of this Board, mediated numerous disputes. Others have come before this Board for disposition. [6] It was determined by this Board at the outset that the process for this disputes would be somewhat more expedient. To that end, grievances are presented by way of statements of fact and succinct submissions. On occasion clarification has been sought from grievors and institutional managers at the request of the Board. This process has served the parties well. The decisions are without prejudice but attempt to provide guidance for future disputes. - 3 - [7] Steve Wellwood was an unclassified Correctional Officer who filed a grievance on July 23, 2010. There was a Stage 2 grievance meeting held on August 4, 2010 and in a letter dated August 9, 2010, his grievance was denied. It was referred to the Board on November 25, 2010. [8] The grievance alleged that the Employer failed to roll the grievor into classified status in accordance with a 2009 MERC Agreement. This dispute was one of a group of grievances filed by Mr. Wellwood that were scheduled to be heard together before another Vice Chair of the Board. Notwithstanding that agreement, in an email dated November 21, 2012, the Employer agreed to allow the “conversion” (roll-over) issues to be referred to the Transition Table for determination. It was noted in that email, “To be clear, this agreement is without precedent and prejudice to the Ministry’s right to argue that the conversion issues are without merit and to argue any other relevant preliminary and/or procedural issues/objections that might apply.” [9] At the Transition hearing, held on July 5, 2013, it was the Employer’s view that this grievance was referred to the Board after the mandated time limited in the Collective Agreement and therefore this Board is without jurisdiction to hear and determine the matter. [10] The Union took the position that the Employer waived its right to raise this objection because of “fresh steps” taken by the Employer after the email correspondence in November of 2012. Specifically, it was noted that the Employer had investigated the facts surrounding the grievor’s hours in relation to the roll-over, provided that information to the Union and engaged in discussion. [11] On April 2, 2013, the grievance was raised at the transition table briefly. According to the Union, no issue of timeliness was raised at this time. The Employer did not dispute this assertion at the hearing into this matter. [12] The Board was provided with a series of emails that were exchanged in April 2013 regarding the merits of this matter. In that correspondence, the Union asked the Employer for – and was provided with – a spreadsheet of the grievor’s hours in 2009. It would appear that this exercise was undertaken to ascertain whether the grievor’s allegations had merit. - 4 - [13] The grievance was next discussed briefly by the parties – in an aside during the course of another matter – on May 23, 2013. It was at this time that the matter of timeliness was specifically raised. [14] The parties agreed that in the event the Employer’s preliminary object does not succeed, the grievance would be upheld. [15] The Employer took the position that as of the November 21, 2012 email the Employer made its preliminary objection known and any discussions subsequent to that correspondence was in the context of the mediation process and therefore cannot be seen as a fresh step. [16] The Union urged that the Employer’s position cannot be sustained. The Employer cannot embark upon significant discussions to determine whether there is merit to the grievance and once it is determined that there is a likelihood of the grievor succeeding with his claim, then “fall back” upon its much earlier vaguely stated preliminary objection. To allow such behavior would be procedurally unfair and contrary to the jurisprudence according to the Union. [17] I have considered the facts and submissions made in this matter. As usual with transition matters, this decision is without reasons. It will suffice to say that I agree with the Union that in the specific facts of this particular case, the Employer took fresh steps and therefore waived its right to rely upon an objection regarding the timeliness of the matter being referred to the Board. [18] As noted above, there was agreement that if the Employer’s objection failed, Mr. Wellwood should have been rolled over. I leave it to the parties to determine the appropriate remedy. [19] I remain seized. Dated at Toronto, Ontario this 28th day of August 2013 Felicity D. Briggs, Vice-Chair