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HomeMy WebLinkAbout1990-0142.Smerhy.91-01-04 -- ONTARIO EMPLOYÈS DE LA COURONN£ CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STR(;ET WEST. SUITE 2100, TORONTO, ONTARIO. M5G US TELEPHONE ¡TELEPHONE: (416 J 326- r 38/3 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG ¡ZB FACSIMllEITE'LECOPIE: (415J 325-1396 142/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Smerhy) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer G. simmons Vice-Chairperson G. Majesky Member G. Milley Member FOR THE I- Roland GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Jarvis EMPLOYER counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING: August 9, 1990 ~ 2 At the beginning of the hearing into this matter, the Board was informed that the Employer had a preliminary objection to having the matter heard on its merits. It was agreed by the parties that the Board would hear the objection and make a ruling, if possible, at the conclusion of the parties' presentations andJ depending on that ruling, would or would not proceed to hear evidence and argument on the merits of the grievance. The nature of the preliminary objection will become evident as we relate certain facts which are not in dispute. The grievor is classified as "Technician 3, Surveylt and has a position title of "Senior Survey Technician". In 1979 the grievor moved from Whitby to Port Hope when his spouse was transferred to that city by her employer. The grievor's headquarters had been designated to be in whitby in his home. However, by memo dated April 5, 1979, the Employer informed the grievor that the Ministry would not be redesignating his new home in Port Hope to be his headquarters but designated it instead to be 3501 Dufferin Street in Toronto. The parties negotiated Article 38 into the Collective Agreement which became effective on January 1, 1986. That article is concerned with the designation of headquarters. The section in dispute involves 38.4 and reads as follows: 38.4 A ministry may change the headquarters of an employee covered by this article, if: (a) the employee's residence has been designated as his or her headquarters and he or she subsequently initiates a change of residence: or ~ 3 (b) a ministry facility which has been designated as the employee's headquarters ceases to operate as a ministry facility; or (c) the employee is assigned to .a work location or work locations at least forty (40) kms. by road from his or her existing headquarters, and it is anticipated that the employee will continue to work in the area of the new work location or work locations for at least two (2) years. Nothing further transpired until June, 1987, when the grievor informed the Employer that he would be changing his residence from one street to another in Port Hope and asked the Employer to change its records accordingly. Also on June 22, 1987, the grievor wrote another letter to his immediate supervisor informing him of the change in residence and requested, pursuant to Article 38, that his headquarters be reviewed so that his headquarters would be more fair and equitable to him. The term "fair and equitable" is used by the Union to describe a requirement that is placed on the Employer because of the incursion of the word "may" in 38.4. It is argued that the Employer possesses a discretion because of the word "may" and it must exercise its discretion in a fair and equitable manner. The grievor informed his supervisor that his "normal area of work" since June 1979 has been from Highway 12, Whitby in the West to Peterborough in the North and to Trenton in the East. By letter dated July 20, 1987, Mr. Byblow, the grievor's immediate supervisor, wrote to the grievor informing him that the headquarters at 3501 Dufferin would remain unchanged because it 4 was considered to be most convenient for the efficient conduct of the Ministry's business. This response prompted the grievance, dated August 18, 1987, to be filed. The Employer adopts the position that based on the above facts there was nothing in Article 38 which triggered the redesignation of headquarters. Counsel for the Employer informed the Board that he was relying on Article 38.4(c) and relied on Simpson and the Ministry of Transportation (1989), G.S.B. 926/88 (Forbest-Roberts) which he claimed to be on all fours with the instant situation. In that case the following appears on page 2: The grievor, Mr. J. Simpson is a Survey Technician and has been with the Ministry of Transportation 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 willowdale 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. The Forbes-Roberts Board said that nothing that had occurred since 1981 had triggered Article 38.4(a) or (c) and dismissed the grievance. Counsel for the Union argued that employees assigned to work locations at least forty k:Ü ometers from his/her existing 5 headquarters which is set out in 38.4(c) is applicable in the instant situation. He informed the Board that the grievor works between eighty and ninety percent of his working hours east of Whitby and that he has to travel in his capacity as a surveyor on various roads and properties adjacent to roads as far as Brighton in the east, Peterborough in the north, and that he has continued to do so over a two year period subsequent to filing the grievance. As stated earlier, it was also the position of the Union that the word may in the beginning sentence of Article 38.4 requires the Employer to act fairly and reasonably in exercising its prerogative. It was his position that Simpson (supra) does not detract from the grievor's claim. It appears the argument concerning the word "may" was not advanced in Simpson. Further, the facts in Simpson reveal that the grievance was filed in September, 1988; was heard by the Board in January, 1989 which handed down its decision in May, 1989. Thus, the speed with which the Simpson case proceeded prevented any determination being made about continuing to work in the area of the new location for at least two years which is set out as a factor in 38.4(c). Counsel informed the Board that the evidence of the grievor would be that his work location did not change in two years prior to and following the filing of his grievance. Accordingly, Simpson is to be distinguished from the instant situation. Following the conclusion of the representations of the parties and after having had an opportunity to consider their submissions, . ~. _ c +- - - I 6 the Board informed the parties that it had concluded that the position of the Employer is to be preferred over that of the Union. The Board informed the parties that its reason is based on its interpretation of Article 38.4(c). Article 38.4 begins by stating that "A ministry may change the headquarters...if" (and continues in paragraph (c) ] "the employee is assigned to a work location or work locations at least forty (40) kms. by road from his or her existing headquarters". There is no dispute that the grievor is assigned to work locations beyond 40 kms. from his headquarters. But this is not new. He has been continually so assigned since 1979 and has not heretofore complained. But when he moved his residence in June, 1987, from Gifford street to Silver Crescent in Port Hope he considered that he was entitled to have a redesignation of his headquarters. However, 38.4(c) goes on to refer to a new work location and for a period of at least two years. The article does not refer to a new residential address of the grievor as the requirement for triggering the redesignation of a headquarters. But it does refer to a new work location. The words "assignedll and lithe new work locationll taken together drives one to conclude that the only logical meaning that can be attributed to 38.4(c) is the employee must he assiqned to a new work location which, it is anticipated'will continue for at least two years before a redesignation of headquarters must be considered. While the grievor's duties require him to travel to different work sites in order for him to carry out his survey work, these duties have not changed since 1979 in a way that it could be .- 7 considered an assignment to a new work location as contemplated in Article 38.4(C). His overall duties and general work location have remained the same following his move in June, 1987, as they had since 1979 and up to June, 1987. Therefore, we do not find that there has been an assignment of the grievor to a new work location as that term contemplates in 38.4(c). Therefore, we agree with the Employer that Article 38.4(c) has not been triggered in the circumstances that are before us. Having reached this conclusion it is unnecessary for the Board to enquire into whether the word mav which appears in the first sentence of the article is permissive or imperative or whether it must be applied fairly and equitably by the Employer and we therefore decline to do so. Therefore, it is the Board's decision that the prel iminary objection of the Employer succeeds and the grievance therefore fails. Dated at Kingston, Ontario this 4th day of 'January !991.· c- ~ - ~ - C. Gordon simmons Vice Chairperson fir DISSENTfI (Dissent without written reason) Gary Majesky Member cfj IM'~L'I George Milley Member