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Home My WebLink About1988-0926.Simpson.89-05-25 .... ONTARIO EMPLO Y£S DE LA COURONNE '~ CROWN EMPLOYEES DE L'ONTARIO ~ GRIEVANCE COMMISSION DE SETTLEMENT Ri:GLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z$- SUITE 2100 TELEPHONE/T~'L~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 17_.8- BUREAU 2100 (416) 598-0688 926/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Simpson) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer Before: J. Forbes-Roberts - Vice-Chairperson I. Freedman - Member R. Trakalo - Member APPEARING FOR N. Luczay THE GRIEVOR: Grievance Officer Ontario Public Service Employees UniOn APPEARING FOR K.B. Cribbie THE EMPLOYER: Staff Relations Advisor Human Resources Branch Ministry of Transportation HEARING: January 25, 1989 DECISION The instant case concerns a designation of headquarters. The facts are not substantially in dispute. The grie~or, Mr. J. Simpson is a Survey Technician and has been with the Ministry of Transportation ("the Ministry") since 1975. In 1980 the grievor was living in Willowdale, and his home was his designated headquarters. Sometime in 1981 he moved from Willowdale to Beaverton, Ontario. Following the move he made a request to have his headquarters redesignated to Beaverton. By letter dated December 1, 1981 the Ministry both refused this request and redesignated Mr. Simpson's headquarters from Willow- dale to 3501 Dufferin Street. This location has remained his designated headquarters ever since. In September of 1988 Mr. Simpson grieved seeking a more equitable designation of his headquarters and the attendant benefits pursuant to articles 17, 22 and 23. It was the Ministry's uncontradicted evidence that over the next five (5) years work locations will be moving closer and closer to Toronto. Article 38 - Headquarters states in part: ARTICLE 38-- HEADQUARTERS 381 This arlicJe applies to employees who do not attend al or work al or work ~rom any permanent ministry facility in ihe course of their duties, bui' Ior whom a permanent ministry [aci]ity or other place is desig- nated sS an employee's "headc~uarters" for the put- poses of the prowsion$ of this collective apreemen' and el various allowances which require a lets ID be specrlied. 38.2 A ministry may clesignate a headc~uarte~s when ur eml~loyee is initially appointed Io a ,~osifion. or whe~ a posit[on is tilted by an employee in acco~d~mcL witl'~ ArticJ~, 4. Arlicle 5, or AHicle 24 ol Ihis coil(:(, live agreement. All iDb posbngs, nolices end ul[,;~ tn relation to positions covered by II,is article shaf include the designaled headcluarlers for the tio~. This designation shall be the [ocation conap- dared by Ihe minislry to be the mos~ convenient the efficient conducl et the minislry s bus[ness, ha,,. ing ~'egard ~o ~he ministry's projectJor~ el the IocatJo~ Of the employee's work assignments lot a period (~ two years, It iS not a requiremenl lhat the de, sig- naled headquarters be a taciiily wi'lose are related to the work to be performed by [he employee, and the employees residence may-aisc be designated as his or her ~.eadcluarters. The ployer wilt supply to the Union, by December 30 o; each year, a currenl tist el headquarte.'s design;~. lions for employees covered by this arhcle 38.3 By mutual agreement in writing between the min~;- try and an employee, a new headquarters may bu designated for an employee at any lime. and mutual agreement m writing between II~e and the employee, a temporary or seasonal head- Quarters may be designated lot a slated Iollowing which the ~revious~y designated head- quarters will be reinstaled unless il has been changed in accordance with ihis article. 3B.4 A minislry may change the headr4ua~lers ol a~ employee covere(l by this article, il: (a) I~e employee's residence has been designated as his or her headquarters and he or she sub- sequently initiates a change of resiclence; or (b} a ministry {ac~lity wh,ch has been designaled as the emptoyee s headcluartem ceases to opetalu as a ministry facility; Or ; {c~ the employee is assigned lo a wozk localion or work locations at {east t'orly (40J kms, ~y road Irom his or her existing he:~dquarte~s, and it is anticJpatec~ thai ~hu em~ayee will continue ~o worA in the area al the new work location or wort< locations tot al least two (2] years. ,38.5 Where a ministry exercises its right to change the headcluarters of an employee otherwise than by mutual agreement with Ihe employee, the Ioltowing procedure will ~pDly [.a) The minisffyshall l)rsl give nohce lo the employee ol tls inten~, and sha)l Consu)~ wilh Ihe employee tO determine lhe employee's interests and the employee's p~:elerences as to the new headquar- ters location. (b) The minislry shall delermine lhe new headquar- ters Iocalion in a way which is equitable lo bo~h the employee and the ministry. lc) The employee shall be OWen th[ee (3) months notice of the change in designation at the head- quarters. 38,6 Where it is necessa[y [o ~denliiy wl~ich one or mo~u of a group al employees is to be assigned ~o ~ new headquerters, the employees to be reassigned Shah be {dent{lied by considering the qualifica{ions, avai~- abiliW, and currenl Iocalion (home, closest gacility and work tacalion). Where qua~[[[c~tLons, aveiiabi[. i~ and J~alion are relatively eeuat, length O[ COntin- uous sa~Jce shall ~ used to identily the emptoyee to ~ realigned. 38.7 Employees who relocate 1heir re,t,~dences becau~u o~ a change in headquarters, other than a temoorary or seasonal change, in ~ccordance with this article, shall be deemed to have been re[ocaled for purposes at the Employer's policy on reloc~hon expels. Employer counsel suggested and the Union did not dispute that article 38 first appeared in the collective agreement ~n 1986. Union counsel argued that pursuant to Peeb!es, G.S.B 1257/84 the grievor is entitled to have his headquarters redesignated in a fashion which is equitable to both himself and the Ministry. Employer counsel argued that such a grievance had to be filed in 1981 when the redesignation occured. The grievor is now trying to rely on jurisprudence which predates the clause under which he seeks to grieve. It was argued that under article 38 the grievor has no right to grieve because there has been no intervening event which would require the Ministry to consider a request for redesignation. It is clear that the collective agreement now contains specific language which deals with the designation of headquart- ers, a circumstance which did not exist when Peebles (supra) was argued and decided. Obviously the parties have turned their minds to the issue and the language of the collective agreement must supercede any jurisprudence which predates its existence. What then is the triggering event which would bring article 38 into play? Article 38.2 requires that an employee be initially appoint- ed to a position or that' a position be filled pursuant to articles 4,5 or 24. The grievor 'has not changed his position since his headquarters were designated. Article 38.3 requires the parties' mutual agreement which is obviously absent. This leaves only article 38.4, which states:~ 38.4 A minmstry may chan~e employee covered by this article, if: (a) the employee's ~esmdonce has been designated as his or her headquamers and he or she sub- se~uenUy initiates a change of residence; or (b) a ministry facility which has been designaled as the employee s head(~uarturs ceases to operat~ as a mtntstry facility; or {c) [he emDIoyee is ass~med fo a work iocahon or work locations at least lorry [40) kms. by roarJ from his or her ezisbng headquarters,, and it is an.ticipated thai lhe employee wit[ continue to work in Ihe area o! the new work location o~ work Iocalions for at least two (2) years, As the grievor's home has not been his designated residence since 1981, article 38.4 (a) cannot apply. There was no evidence led that 3501 Dufferin Street has ceased to operate and therefore, 38.4 (b) cannot apply. Finally it was the Ministry's evidence that in the future the work sites will be moving closer to the grievor's designated headquarters, and c0nseguently article 38.4 (c) cannot apply. As there was no evidence led of an event to which article 38 would apply the grievance must be dismissed. Dated at Toronto this 25th day of way, 1989. J. Forbes-Roberts, Vice-Chairperson I. Freedman, ~ember R. Trakalo, Member