HomeMy WebLinkAbout2013-3805.Beaulieu.14-06-19 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#2013-3805
UNION#2013-0630-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Beaulieu) Union
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The Crown in Right of Ontario
(Ministry of Labour) Employer
BEFORE Bram Herlich Vice-Chair
FOR THE UNION John Brewin
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
Counsel
FOR THE EMPLOYER George Parris
Ministry of Government Services
Legal Services Branch
Counsel
HEARING June 9, 2014
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Decision
[1] Numerous grievances raising identical issues were referred to me for a hearing
that was scheduled for March 27, 2014. On that day the parties were able to resolve all of those
grievances and to agree that the revised provincial after-hours service procedures and related
documents are being implemented to the satisfaction of both parties.
[2] The instant grievance, however, was not part of that group, although it raises
similar issues. Thus, the parties agreed to refer this grievance to me for determination pursuant
to Article 22.16 of the collective agreement. This decision will therefore be without
precedential value and its reasons will be succinct.
[3] The Grievor is an inspector under the Occupational Health and Safety Act,
employed by the Ministry of Labour (“MOL”). On October 25, 2013 he was on-call. At
approximately 5:15 PM, a call regarding a workplace injury came in, as is the normal after-
hours process, to the Spills Action Center (SAC), administered by the Ministry of
Environment. The SAC, in turn, contacted the on-call MOL manager who, upon being briefed,
determined that there was no need for an inspector to attend at the worksite that night. The
grievor was not contacted.
[4] The grievor asserts that it was he, and not the MOL manager, who ought to have
been contacted by SAC. And the grievor is certain that, based upon what he knows of the
incident, he would have visited the worksite that evening, not to conduct an investigation per
se, but to gather some basic information and, if necessary, to secure the site.
[5] There is no dispute that had the grievor been called and certainly had he
conducted a workplace visit, he would have been entitled to premium payment under the terms
of the collective agreement.
[6] The employer argues, however, that there was no breach of the collective
agreement arising out of either the initial contact between SAC and the MOL manager or the
latter’s determination that no inspector site visit was required that evening.
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[7] I am persuaded that the employer’s position must prevail.
[8] As in the case of Spicer/Union GSB File # 2009-0172, April 30, 2012, the union
did not advance any claim (nor would any be available) that the referral to the manager
constituted an improper assignment of bargaining unit work. I also note that in that case, the
argument that such an assignment undermined certain provisions (in that case, regarding
overtime) of the collective agreement was rejected and, in my view wisely, no such argument
was advanced in the instant case.
[9] Indeed, there was no specific provision of the collective agreement alleged to
have been violated. I have already noted that there was no dispute about the grievor’s
remuneration had the work been referred to him – the issue before me, however, is whether the
employer was obliged to refer that work to him. The union has failed to establish any such
obligation.
[10] At best, the grievor’s case rests on alleged employer non-compliance with the
terms of the Ministry Operations Division Policy and Procedures Reference Manual. It
contemplates that only after-hours calls falling within certain categories including “critical
injuries” are forwarded by SAC staff to the inspector on-call. (The instant case involved a
critical injury – a worker had lost her footing and jumped down the last 3 steps of a set of
stairs, landing on both feet. The incident occurred at approximately 10:00 AM but was not
called into SAC until 5:15 PM, when it was determined that the worker had suffered a broken
fibula, an injury which falls within the category of “critical”.)
[11] Returning to the Reference Manual, it also contemplates that an MOL manager is
to be available after hours to SAC if SAC requires clarification or direction on any issue or is
uncertain about the need to call an inspector.
[12] Even assuming non-compliance with the employer’s policy could form the basis
of a grievance (a proposition which is less than evident to me), I am not persuaded that there
has been any such violation in the instant case. The facts of the present case are consistent with
the circumstances contemplated in the previous paragraph. And the performance of a "triage"
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function by the manager is equally less than surprising having regard to the Spicer decision
cited earlier.
[13] There being no other alleged collective agreement violation, the grievance must
be and hereby is dismissed.
Dated at Toronto, Ontario this 19th day of June 2014.
Bram Herlich, Vice-Chair