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HomeMy WebLinkAbout1988-0538.D'Silva.89-01-05 ' ~ ~' CROWNEMPLOY~EES DEL'ONTARIO "~ , . GRIEVANCE C.OMMISSION DE .~ f.), ¢ ~ .,~. '¥'~- .... / / SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G IZ8- .~JITE 2100 /..; J~-: -.---::z- . 7~ELEPHONE/T£t.~PHONE 180. RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG I~-.8 - BUREAU 2100 - - - 0538/88 THE CROWN E2~PLOYEES COLLECTIVE BARGAINING ACT before -" ' '~ TH~ GRIEVANCE SETTLE:MENT · . (Ministry of E~vironment') '- r Before: N.V. Dissanayake Vice-'Ch~ irperson : .... T.._Brpwes-Bugden - Member · :, P.D. Camp . Member -- ',For'the Griovor: -D. wrigh't .. " Counsel Gow]ing & Henderson" Barristers and Solicitors For {::he Employert R. You'nger'.'-. Staff Relations. Offi-cJer : ' ' Ministry of Environment Hearing: December 1,, .1988 DECISION This is a grievance wherein Patrick D'Silva alleges that ~he Employer is "Impeding (his) natural Progression" and stat~s the settlement de, ired as "establish natural progression as they~ become available." At the commencement of the hearing, counsel for the Employer raised 'a preliminary objection to~ the Board's , jurisdiction to hear this grievance. The parti:,es agreed that the Board should determine the prelimingry motion . before proceeding to hear the merits. The parties made submissions on the motion on the basis of ,an agreed statement of facts which is as follows: AGREED STATEMENT OF FACTS 1. The Griever is employed by the Ministry at its Lakeview Sewage Plant in the Position of Senior Operator - Thermal Conditioning Facility (TCF) 2. ~On each shift there is a Shift Engineer and, Working below the Shift Engineer~, two Senior Operators, one for TCF and the oth~r in the Thermal Oxi'dation Facility..(TOX)., The Senior OperatOr (TOX) for the Griever's Shift is one Mr. A. Khan. ... 3, In the event of a temporary absence by the Shift Engineer, either due to illness or vacation, it is the practice of the EmPloyer to appoint the Senior Operator (TOX) ' to' fill that position on a temporary basis. This l. 3 occurs for absences as little as one shift and for up to approximately one month at one time. ~ These absences ,average ~out to approximately one day every three weeks. 4. The Grievor has Greater seniority than 'the .Senior ,Operator' (TOX)~ and,in addition to familiarity with his own side of. the plant (TCF) .is' familiar with the'operation of the TOX side of the plant as a result of a three month ~'training assignment ron~ the TOX side which took place early in 1988. The Senior Operator (TOX) 'is. not%-familiar with the operation of the TCF side of-the plant. The Employer's motion objecting .to the Board's jurisdiction is based on the assertion that the agreed statementLof facts or the grievance itself does not allege the violation of any provision of the collective agreement. 'Counsel submits that the Board has no' jurisdiction either under section 18~or 19 of CECBA to ~ investigate a complaint which is not based on an allegation of contravention of the collective agreement. Counsel for the union relies on article 6,6.~ of the collective agreement, which reads: 6.6'.1 Where an employee is assigned temporarily to a Lposition,.Article 4 (Posting and Filling of Vacancies or New Positions) shall not apply'except where: (i)~ the term of a temporary assignment is greater than six (6) months' duration, and (ii) the specific dates of the term.are established at least two (2) months in advance of the commencement of the temporary assignment. Counsel concedes that article 6 only appllies where the Conditions in (i) and {ii) therein exist, .i and that since the. temporary assignments here are for 16ss than. 6 months, article 6 cannot ~appi'y. Ho~eve~, it is counsel's contention that since the par les have addressed temporary assignments in the ~ollective agreement, the Board should interpret th~ article " broadly and infer that the parties intended all temporary assignments ~i11' be filled reasonably. Counsel drew the Board's attention to :its past jurisprudence where it has held that the Boa~d has'the authority to review the exercise of discretion by management. : On a careful review of the submissions of counsel, rm -the Board has concluded that the Employer's mJtion must be Upheld. Article 6 is expressly limited to'.temporary assignments which meet the specific stipulations in article 6.6.1 (i) and (ii). Article 6.6;.2 pre01udes the Board from extending' any r~ghts with r~ards to temporary assignment that do not come within article 6.6.1. The parties have expressly indicated in article 5 6.6~2 tha{ · the only rights under ,the collective a~r~ement with 'respect' to temporary .assignments are those' provided ~n article 6,6~1 ' Thus article 6.6.2 6.6'2 ~Except 'a~ provided'in 6.6.1, in no case shall any provision of '~the Collective Agreement with respect to the filling of, . assignmen$.or appointment to a vacancy apply to temporarY assignments. The G.$.~.' jU~isp~Ud%n¢6~relied "on by counsel for the grievor is of no assistance in these circumstances. In %hose Case's what~-'the.'Board hel~ was that where an .employee is granted a right Under the collective agreement, which is subject to the. exercise of discretion by management, that discretion must be exercised in accordance with the 'basic eiements of administrative law concepts. However,. before the Employer becomes Subject to such a duty, there must be a right or benefit under the collective agreement. Thus .in Re Kuyntyes, G.S.B. 513/84, article 54 (now 55) provided for special and compassionate leave. In Young, G.S.B. 220/79 reported at (1979) 24 L;A.C. (2d) 145, article 29.1-provided ~or leave without pay. In both cases the Board held that the management must act reasonably in exercising its discretion whether'to grant the benefit in ~uestion. In contrast, as the Board found above, there is no right or benefit under the collective agreement which !- attaches to temporary assignments which do i not fall within article 6..6 1 Therefore no question of' ~easonable exercise of management discretion can arise. For ali of the above reasons,, the Board finds that it is without jurisdiction ..to entertain thle ;>resent grievance and the.same is hereby dismisse.d, i Dated this 5£h day of January, 1989. i N.V. Dissanayake . Vice-Chairperson T. Browes-Bugden Member ;, ---~ P. Cared Mo~er