HomeMy WebLinkAbout1990-0861.Bosman et al.90-12-18
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-, ~." ONTARIO EMPLOYtS DE t.A COURONNE . ,
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. -~' CROWN EMPLOYEES DEL 'ONTARIO
.,"¡,.~, GRIEVANCE COMMISSION DE
1111 SETTLEMENT ~
REGLEMENT
BOARD DES GRIEFS !
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180 DUNDAS STREET WEST. TORONTO, ONTARIO. M5G 1 Z8 - SUITE 2100 TELEPHONEITtLtPHONE
180. RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (416) 598-0688
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861/90, ,,862J,~:0 ,I f
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863/90, 822/90
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IN THE MATTER OF AN ARBITRATION ¡
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Under
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THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT i
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Before
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THE GRIEVANCB SETTLEMENT BOARD
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BETWEEN I
OPSEU (Bosman et all i
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Grievor
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The Crown in Right of ontario ~
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(Ministry of Community & social Services) ¡
~ Employer (
BEFORE: N. Dissanayake >y~ce-Chairperson I
J. c. Laniel ',Mèmber
A. G. Stapleton Member
FOR THE R. Wells
GRIEVOR Counsel
Gowling, strathy & Henderson
Barristers & solicitors
FOR THE J. Smith
EMPLOYER Counsel
Human Resources Branch
Ministry of Community & Social
Services
HEARING: Octobe:- 30, 1990
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DECISION
These are four individual grievances of John Bosman,
Roland Eaton, Ian Yates and Don Werkman~ Al though the
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grievances were written as discipline grievances, j
in allegation I"
agreed that essence the was that the '-
Employer had failed to post a joh vacancy.
Much of the facts were agreed upon. The only
witness to testify was Mr ~ Peter Anstead, a member of
management who testified on behalf of the Employer. I
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The grievors are employed as drivers (classification
Motor Vehicle Operator I) at the Transportation
Department of the Oxford Regional Centre, a facility
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operated by the Ministry~ The Transportation Department
operates a fleet of vehicles. The drivers are generally
assigned a vehicle on a four month rotation basis.
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At some point the Employer acquired a paratransit I
vehicle, a vehicle specially equipped to transport the
handicapped~ It was added to the Transportation
Department's fleet and Mr., Eaton was assigned to drive
it for four months. However, after 1 1/2, months the I
paratransit vehicle was taken out of the Transportation I
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Department and placed in the Developmental skills ¡
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Department of the Oxford Regional Centre. A member of
management was assigned to drive it.
Shortly before the hearing of th~s grievance the
Employer agreed with the Union that it was improper to
assign a member of management to drive this vehicle.
However, the Employer then took the position that it
would be assigning a bargaining unit employee, Mr.
William Mcleod, to drive the paratransit vehicle for a
period of 6 months. The grievors claim that the Employer
is obliged tinder article 4 of the collective agreement i
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to post the positio~ of paratransit driver and that it ,
- has no right to appoint an employee as it proposes to do. I
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The Union seeks a direction that the vacancy be posted. .
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Mr. Anstead testif ied 'in a refreshingly candid
manner. He testified that Mcleod's normal job was
classified as Medical Assistant 2. He had had a recent
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i history of work related health problems and had recently
I returned to work from workers compensation with a medical
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, certification that he is unable to perform the dutie~ of
his normal jOb as Medical'Assistant 2. Therefore" the
I Employer commissioned a physical needs analysis for Mr. I
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Mcleod, the results of which were pending at the time
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of the hearing. Mr. Anstead testified that he decided
to assign Mr. Mcleod to drive the paratransit vehicle for
six months "basically in order to retain him in the work I
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force". Mr. Anstead testified that if at the end of the
six months it is decided that Mr. Mcleod can return to
his normal duties, the position of paratransit driver
, would be posted at that time. If he is unable to perform
his normal duties but proves that he is able to do the
paratransit driver duties, the Employer intends to
permanently assign Mr. Mcleod to that 'position. Under
cross-examination Mr. Anstead agreed that if not for the
health problems of Mr. Mcleod, the position of
paratransit driver would have been posted immediately.
Counsel for the Employer relies on section 18(1) (a)
of the Crown Emp~oyees Collective Barqaining Act which
reads:
18.-(1) Every collective agreement shall be
deemed to provide that it is the exclusive
function of. the employer to manage, Which
function, without limiting the generality of
the foregoing, includes 'the right to
determine,
(a) employment, appointment, complement,
organization, assignment, discipline;
dismissal, suspension, work methods and
procedures, kinds and locations of
equipment and classification of
positions; and
(b) merit system, training and development, .
appraisal and superannuation, the
governing principles of which are subject
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to review by the employer with the
bargaining agent,
and such matters will not be the subj ect of
collective bargaining nor come within, the
jurisdiction of a board.
The Employer takes the position that in appointing i-
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Mr. Mcleod'was making "an assignment" within the meaning
of section 18(1}(a). ,
The Board fully appreciates the concern of the
Employer in assisting Mr. Mcleod to get back to the
workforce. The Employer's intentions are _ quite I
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laudable. However, the fact is that the Employer is I·,
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article 4 clearly requires a job posting when a vacancy
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occurs or a new position is created in the classified
service. Employer counsel's submission that what
occurred was merely an assignment of duties flies in the
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face of the evidence. The evidence clearly establis~es
that there was a position to be filled. See, OPSEU
(Union Grievance), 1439/86 (Knopf).
It is clear that even the management acknowledged
that there was a position of paratransit driver to be
filled. Mr. Anstead readily admitted that. The only
reason the position was not posted was because of Mr. i
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Mcleod's health related circumstances. The Employer I
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still has intentions to post the position if and when
Mr. Mcleod is able to assume his regular duties as
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Medical Assistant 2.
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Once the Employer decides that there is a vacant f~
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position to be filled, tj
there is nothing "in section'f8of
the Act which authorizes it to override article 4 of the
collective agreement. The obligation to post a vacancy
under article 4 remains, no matter how good intentioned
the Employer is in its desire to resort to some other I
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method of filling the position. j
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For all of the above reasons, the Board finds that
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the Employer is obligated under article 4 to post the
position in question. Therefore we hereby direct that ~
the position be posted forthwith in compliance with
article 4. ¡
The Board remains seized in the event the parties
encounter difficulty in implementing this direction.
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Dated this ''',18th day of ':'i)ècember'';', 1990 at Hamilton,
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ontario I
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N. Dissanayake I
Vice-Chairperson I
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A. stap~f.eton '
Member