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HomeMy WebLinkAbout1988-0928.Redmond.89-03-21 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL 0 YEES OE L 'ON TA RiO GRIEVANCE COMMISSION DE SETTLEMENT Ri::GLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG ?ZS. SUITE 2~00 TE~EPHONE/T£L~PHONE 180, ROE DUNDAS OUEST, TORONTO, (ONTARIO) MSG ? Z8 - BUREAU 2100 (416) 598-0688 0928/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT '~;<"" ~ Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Redmond) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer Before: R. J. Roberts - Vice-Chairperson L. Turtle - Member '-.~ M. Gandall - Member APPEARING FOR N. Roland THE GRIEVOR: Counsel Cornish & Associates Barristers & Solicitors APPEARING FOR M. Farson : THE EMPLOYER: Counsel '"~'~ Sanderson, Laing Barristers & Solicitors HEARING: January 26, 1989 INTERIM AWARD At the outset of the hearing in this matter counsel for the Ministry made a preliminary objection to jurisdiction on the ground that the 'grievance before us was filed outside th.e mandatory time limits set forth in the Collective Agr~'ement. For reasons which follow~ this preliminary objection is .dismissed. AT the hearing, the par[les agreed that uhe Ministry raised its time limits objection in a timely m~nner and that its objection to jurisdiction was not waived. The question before the Board, both parties agreed, was whether the grievance might proper, ly be characterized as a continuing grievance and therefore timely. The grievance in dispute was filed on July 29, 1988. The "Statement of Grievance" reads as follows: I grieve that my rights have been violated under the Collective Agreement, for example but not limited to Articles 5, 6, 24, 42, C.E.C.B.A., P.S.A, and the Human Rights Code that by management having filled vacant positions after I notified them of my returning to work and are now unreasonably denying me the opportunity to work, are causing me loss of salary and benefits, etc. I also grieve these actions by management as further instances of unjust discipline, harassment, and discrimination. {Reference meeting with management July 19, 1988.) The "Settlement Desired" set forth in the grievance was: That I be reinstated immediat<ly to my former position with no loss of seniority and I be reimbursed for all loss of wages (salary), benefits, etc., plus interest at prevailing bank rate. Further. that management 2 cease and desist these harassing, disciplin~ry and · discriminatory tactics. At the hearing, the parties agreed to the following facts. The grievor is an Ambulance Dispatcher at the Windsor Central Ambulance Communication Centre of the Ministry of Health. He is presently receiving LTIP pursuant to Article 42 of the Collective Agreement. On July 1, 1979, the grievor was hired as an Ambulance Dispatcher. On October i0, i986, the grievor commenced an extended medical leave which ccntinues to date. In late 1987, the grievor provided the Ministry with a medical certificate stating that he could return to work on a trial basis and gradually increase his working time. On January 12, 1988, the grievor commenced a ten-week rehabilitation programme to' prepare him to resume full-time employment on a gradual basis. This consisted of 23 eight-hour shifts and 4 twelve-hour shifts. On January 25, 1988, a variable work hours agreement introdUced twelve hQur shifts for employees at the Communications Centre, with 'occasional weeks of eight-hour shifts. A typical shift schedule which was enteredj~into evidence showed that in a four-week schedule, eight of the ten regular employees would be working mostly twelve-hour shifts~ while ~the remaining ~wc employees would be working steady eight-hour shifts. At the end of the four weeks, the employee whose name was at the bctto?, of 3 the schedule would move to the top and the others would all shift down one. In that way, all employees cycled through the various shifts established in the schedule. This arrangement was ! pursuant to a local agreement in accordance with Articles 7 and 35 of the Collective Agreement. It came into effect just after the grievor commenced his rehabilitation programme. On March ii, 1988, the Ministry extended the grievor's.. ~ehabilitation programme for eight weeks, until Hay !5, 1988. During that time, all of the shifts worked by the grievor were eight hour shifts. On March 28, 1988, the grievor gave the Ministry a mediS'al certificate dated.March 17 saying that he should remain on eight hour shifts 'for at least another six months. On April 12, 1988, the Ministry advised the grievor that a further extension of his rehabilitation programme beyond May 15 would not be recommended. The grievor had the option of assuming full-time employment or returning to full benefits under LTIP. On April 26, 1988, the grievor's ~D0ctor requested a further extension of the rehabilitation program. On May 3, however, the Ministry wrote to the grievor confirming the termination of his rehabilitation programme on May 15 and requesting him to tell the Ministry on 'or before May 9 whether he was going to work or return to full' benefits under LTIP. On May il, 1988, the Ministry again wrote to the grievor. In this letter, the Ministry noted that the grievor had made no response to its May 3 letter. Accordingly. the Ministry told the grievor that his rehabilitation programme would be terminated on May 15 and that his position would be filled. On May 16, the' grievor returned to LTIP. On May 17, 1988, the griever filed ~ grievance claiming that he had been unjustly dismissed. On July 29, 1988, the grievor filed the grievance presently before the Board. Subsequently, in September, 1988, the grievor withdrew his initial grievance. It was submitted on behalf of the Ministry that the grievance before the Board did nothing more than complain of the single, discrete action of the Employer in refusing to extend the grievor's rehabilitation programme beyond May 15, 1988. There was no continuing conduct on the part of the Ministry, it was submitted, which constituted a repeated breach cf a continuing duty under the Collective Agreement. I~ was submitted that it was only this kind of breach of a continuing duty which could give rise to a continuing grievance. In this regard, we were referred to a number of leading cases, including Re Dominion Glass Co. Ltd. & United____G.~S~_.____& .... g.e~.q .... Wo.~k.~.~.~_ Local 246 (!972) , 1 L.A.C. 151 Div. Ct.), affirmed 5 L.A.C. (2d) 224 (Ont. C.'A.); Re Province of Brisish Columb~.a & British Col.un~bia ~urses 5 Union, (1982), 5 L.A.C. (3d) 404 (British Columbia): and Re OPSEU (Union Grievance} and Ministry of Tourism and Recreation (1985}, G.S.B. #756/87 {Fraser). We accept as authoritative the proposition that for a continuing grievance to exist, the grievance must complain of the breach of a continuing duty. The grievance must not merely complain that the collective agreement was breached in a single transaction. This is essentially the ~est which was adopned by Vice-Chairman Fraser in RE OPSEU and Ministry of Tourism and Recreation, ~. In that case, the Board examined the subject matter of the complaint of a grievance in order to determine whether it placed before the Board the question whether the Ministry was breaching a continuing duty or had breached in a single, discrete transaction, a duty that was alleged to be owed under the Collective Agreement. The Board decided that the gist of the complaint related to a single, discrete transaction and did not complain of the breach of a continuing duty. The Board said: In the present case, we have been given evidence of Ministry policy to provide for French language services, but~it is the job posting, and its contents, that formed the subject matter of the complaint. The Ministry policy may have been the initiating factor for that job posting to contain a bilingual requirement, but it is not the policy that is claimed to be contrary to the Collective Agreement, it is the posting itself .... Id. at p. 10. Because the grievance complained of the single, discrete transaction, ~.e. , the posting itselg, and not the allegedly offending policy, the Board refused to treat it as a continuing grievance. In the present case', the grievance seems ~o ambiguous. It has some characteristics of a ccnninuing grievance, in. that it claims that management "are now unreasonably denying me the opportunity to work," and ~em~ = "r%= .... = ....... t managemen~ cease and desist 'these harassing disciplinary and discriminatory tactics." On the other hand, the grievance also has some of the characteristics of the grievance of a single transaction, the refusal of managemen%: to extend his eight-hour shift rehabilitation programme beyond May 15, 1988. Most telling in this respect is the grievor's demand to "be reinstated immediately to my former position with no loss of seniority and ... be reimbursed for all loss of wages (salary) benefits etc." It seems to the Board that we have jurisdiction to treat as a continuing grievande those portions of the grievance in this case which allege that the Ministry ,is in breach of a continuing duty under the Collective Agreement. We understand from representations made by counsel for the Union that t~is aspect of the grievance arises out of the a!~ged continuinc breach by the Minis~r~ of Articles 42.10 and 24 of ~he Cot!e'~tive Agreement, in that the Ministry is continuin~ tc ~..~,~e to ,~xercise its 7 discretion under these provisions in the manner required by Section 25 of the Human Rights Code, relating to making reasonable accommodation for handicapDed workers. While au uhis preliminary stage we canno~ make any comments regarding the merits of this submission, we can and do reach the conclusion tha~ this, indeed, is'a continuing grievance. Accordingly, iu is.- not affected by the ti~e limits set forth in %he Coltec~ive Agreement and we have jurisdiction ta entertain its merits. The preliminary objection is dismissed. DATED at London, Ontario this 21st day of Narcb 1989. R. J. Roberts, Vice-Cha!r~rson L. Turtle, Member M. Gandall, Member