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HomeMy WebLinkAbout1990-1335.Villella.97-07-11 " I ;,-...- ONrAR/O EMPLOYlS DE LA COURONNE , CROWN EMPlOYEES DE L'OI(TARIO 1111 GRIEVANCE COMMISSION DE I SETTLEMENT RÈGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TÉLÉPHONE: (41ts) 328-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1ZB FACS/MILEfTÉLÉCOPJE: (41ts) 32e:-13Pð GSB # 1335/90 OPSEU # 900172-6 IN THE MATTER OP AN ARBITRATION Under THE CROWN EMPLOYBES COLLECTIVE BARGAINING AC2' Before THE GRIEVANCE SETTLEMENT BOARD BETWEE~ _. OPSEU (Villella) Grievor - and - the Crown in Right of ontario (Ministry of the Solicitor General & Correctional services) Employer DEFORE J.E. Emrich Vice-Chair "':-....... FOR THE C. DiFranscesco mUoN: Counsel / Gowling, strathy & Henderson Barristers & Solicitors POR THE A. Gulbinski EMPLOYER Grievance Administration Officer Minsitry of the Solicitor General & correctional Services lIEARING December 8, 1995 July 5, 9, 1996 August 28, 1996 .' I ".. I INTRODUCTION On July 5, 1991 the Board issued an award On a preliminary motion raised by the Employer claiming that the appointment of correctional staff on roution to the position of , Young Offender Work Crew Supervisor was an exclusive management function which was not subject to review by the Board. The Board concluded that the one year appointment came within the posting requirement of Article 4 of the collective agreement by vinue of Article 6.6.1, which defined temporary assignment as six months or less. The preliminary objection was discussed accordingly and the Board 'reserved jurisdiction to hear the merits of the grievors claim to the position, should the parties be unable to resolve that issue. On May 28, 1992, the parties entered into a settlement of the grievor's claim ôn'the .. merits. a copy ofwlúch was filed before us as Exhibit #3 (see page 2). Unfortunately. this settlement, according to its original terms, could not be implemented because between May and November 1992 there vvas a trnnsfer effected of all male young offenders who would luve been assigned to the crew- wlùch the Young Offender Work Gang Supervisor would supervise. The Ministry created another position entitled Adult Work Crew Supervisor which was ~....." "':"-. ,~. " offered to the grievor on November 9, 1992 as a substitute with the intent to satisfy the Memorandum of Settlement, Apparently tlús assignment was not implemented and the pames asked the Board to reconvene to determine the dispute. The parties assisted the Board by filing an agreed statement of fact filed as Exhibit #1 before us (see page 3). 1 " , , IN THE MATlER OF THE GRIEVANCE OF ~~~~ ;, Mr. J. Villella Namg Correctional Officer 2 CWsijiasticft Vanier Centr~ Woric l.I::K:t1tkm C.s.& FILE #-11.35/90 ßETfIF.EN: ONTARIO PUBUC SERVICE EMPLOYEES UNION (The Union) -.AND . THE CROWN IN PJGH:r OF .::JNTARlO (M"UlÙÞ)t of Cørm:tionDl 5f!rvia3) (IM Ministry) MEMORANDUM: OF ~Jl'.MENT T1œ Parties agree to the full and jinoJ :ølemønl of 1M abi1vHrDted gritMJnœ without " ". pt'f!UllenJ oni1 wiJhout ptejudkt to l21tJI fu1we and/or simikv nuzttu on the foJ1owing tenra: J 1. The Mini~try ag~ees to cffer tne grievor a ene (1) year assignment as ·yeung Offender Wor~ Gang Supervisor commencing November 9. 1992. 2. At the conclusion of the grlevorls one year assignment . the çrievor will return to his current duties su,ervisinq adult resi dents. 3. The Grievor and the union agree that the above-noted or1evance, is hereby w1~hCrawn. , , ~..~.~ . This of~er of settlement will be null and void if not accepted by 4:00 ;.11I. :;n May 29. 199Z. - DuJø this;'! day of ,H~~J ~~ ~~ ¡; For tJ.. Gri£>or· Fan/,¿ (l . r ~ M"Ws:ry\.:j . ,A?IDe..~i X C, , 2 .. , I ' . /' GSB File No. 1335/90 STATEMENT OF AGREED FACTS 2:-.* I IN THE MATTER OF A GRIEV ANeE BETWEEN: OPSEt] Grievor aohn Villella) -AND- THE CROWN IN RICHT Of ONTARIO Employer (Ministry of SolicitOr General and Correctional Services) 1. The grievor is employed as a Correctional Officer at the Vanier Centre and has been so employed since Dec~er 1985, , -. .. "..:.' 2. Attached as Appendix A is a copy of the grievance before the Board. The grievance was filed on June 15, 1990. ; 3. The grievance concemsthe position of Young Offender Work Crew Supervisor at the Vanier Centre. The Union and the grievor claim: 0 that the position ought to have been made available to staff in accordance with Article 4 of the Collective Agreement (posting and Filling of Vacancies); and e that the grievor should be placed in the position. 4. The matter was heard by the Board on December 13, 1990. Attached as Appendix B is the Board's decision in regards to the grievance. ' 5. In the Board's decision, it was left for the parties to resolve the issue of the griever's ..~.... ..f_. . ~ placement in the position. The Board remained seized in the event that the parties ~';: were unable to come to a resolution. 6. Attached as Appendix C is a Memorandum of Settlement signed by the partieS as resolution of the grievance. The Memorandum of Settlement was signed on May 28, 1992 and the grievor's reassignment was to commence on November 9, 1992. 7. Attached as Appendix D is a description of the Young Offender Work Crew Program which reflects the program at the'tinle of the signing of the Memorandum of Settlement. . 8, Attached as Appendix E is a memorandum issued by the Young Offender Administrator on September 23, 1992. The transfer of male young o£fende1'S from the Vanier Centre to other facilities took place in September and October 1992. . 3 " John Villella 1335/90 Page 2 AÇ'~ t..---:-M.. 9, 9ue-te the transfe: of male young offenders out of the Vanier Centre, management at the Vanier Centre determined that there was no longer a need to have a Young Offender Work Crew Program. 10. The terms of the Adult Work Crew Program were similar to those found in Appendix D. 11. Attached as Appendix F is the notice that was issued to the grievor to indicate his reassignment to the Adult Work Crew Program. 12. Due to disagreements between the grievor and management at the Vanier Centre regarding the tenns of the Work Crew Supervisor assignment, the assignment did not continue after N=~, 1992- 13, There has been no(\Work Crew Supervisor assignment since the male young offenders were transferred £rom the Vanier Centre. 14. The parties reserve the right to call additional evidence and to make additional submissions on the day of hearing. Dated this 7 December, 1995. -, . r: adZ ~C\tí For the'U!Ùon For the Employ At the first day of hearing it became apparent that the parties were at odds in defining .~. +-. the issues for determination by the Board. The Employer took the position that it acted in accordance with the intent of the Memorandum of Settlement by offering the grievor a position that was substantially similar to the position of Young Offender Work Crew Supezvisor. The Employer contended that the grievor had refused a reasonable substitute offer of work as Adult Wark Crew Supervisor and thereby had rendered performance of the Memorandum of Settlement impossible. Counsel argued that the grievors refusal breached the Memorandum of Settlement and the grievance should be dismissed. 4 . The Union took the position that the original grievance. claiming placement of the grievor in the position, had been revived because the Memorandum of Settlement had been breached by the Employer. The Employer required time to prepare its arguments, and the first day of hearing adjourned upon agreement of the parties that the merits of the dispute ~. .' would be heard by the Chair sitting as sole arbitrator. The hearing reconvened at which time viva voce evidence was received from the grievor. from his immediate supervisor. Linda Mewett, Operational Manager (OMI4) at / Vanier Centre, from Ms. M. Robertson, Operational Manager (OMI6), and from Mr. W. Arbuthnot, who was Senior Superintendent SeIVices at Vanier Centre at the relevant time. ., . The parties remained at odds over the relevant issue and time frame concerning the remedy flowing from any finding of breach. The spokesperson for the Employer maintained that it had substantially performed the settlement agreement by offering the position of Adult I Work Crew Supervisor for a term of one year commenángNovember 9, 1992. The Employer contended that the grievor had not cooperated with the settlement by refusing to accept the 7..--. -O:.~. terms concerning meal break, and had thereby rendered performance impossible and the <-', grievance moot. In the alternative, if there was any breach of the settlement agreement by the Employer, the griever had not proved his entitlement to overtime pay as damages flowing from that breach, and that any remedy should be the award of a substantially similar appoinuneilt. On behalf of the grievor, counsel argued that the settlement had been breached when the position of Young Offender Work Gang Supervisor was discontinued upon the transfer of male young offenders out of the Vanier Centre. Further, counsel argued that the position of Adult Work Crew Supervisor was not substantially similar because the meal break was 5 . shorter and not responsibility-fre'e as had been the case previously. the hours of work were different, :md management exercised greater control over assignment of inmates to the work crew. Nonetheless, counsel maintained that the grievor had been prepared to accept these differences until he was asked to waive his right to grieve over the terms and conditions of the substitute assignment. Once the grievor refused to provide any such waiver. the Employer proceeded to cancel the position and thereby acted in breach of the settlement. Accordingly, since the settlement agreement had been repudiated. the original grievance was revived and damages had to be assessed on the basis that the Employer had breached Article 4.3 of the collective agreement by failing to appoint the grievor to the position of Young Offender Work . .. Gang Supervisor for a one year tenn commencing June 4. 1990. Counsel contended that me evidence established that the grievor was entitled to be appointed to the position and the collective agreement was breached by the Employer's failure to appoint lúm to the position. Although the position entailed the same rate of pay and 40 regular weekly hours of work as the griever's regular position as a Correctional Officer. the opportunities for working overtime ~_. '":".... paying time and one-half, to work weekends (paying double-time) and working statutory " holidays (paying triple time) were greater in the Young Offender Work Crew Supervisor position. The griever filed ills records of ovenime pay received in the 1999-99 year when he worked as a Correctional Officer and his record of overtime pay received during his previous appointment as Young Offender Work Crew Supervisor in the 1989-90 year in suppon of his claim. as well as the ovenime he earned as a Correctional Officer in the June 1990 to May 1991 time period. 6 " EVIDENCE The position of Adult Work Crew Supervisor was created by management to satisfy its obligations under a settlement dated May 28, 1992 of the grievance flied June 13, 1990 claiming that the collective agreement had been violated by the Employers failure to appoint him as Young Offender Work Crew SupeIVisor in May 1990, The original grievance was filed before us as Exhibit #2. . 'J1'\. "':;;'L~À ·GRIEVANê~RM:·~~' ~ - llntariøPuhlkStMceEmpIoymU- "!Dl?lr ~ ':0: a m;I Oi'.LE.Uo. eue-~ 1 ND COPY: TO BE GIVEN TO OPS¡¡:U REGIONAl. REPRESeNTAnVE __ YJL.J.£EJ..A'-r ,..;;-;11";..,_ 1=.0. ~63 .. . ~ /0 .,. sr;_.J1J?~K. _ 1'4-'9c.~ . ' ~ ß~lIl1l.r.pN.. __ ._ é);V771RJO I:" L 6X-:$ WS __100' (":;.it)¡¡ss--3339 1___~(Wt:"'),...r.P'-9/"'()1!llT ~'_ C otR£C77oNJlL tJF¡=¡c~1( illA1ICf':"" t}~ce/"1(/£R If¿>.:: oQSmQoom\.l C, 0.1 &,_ ., 1_Cf'_ ~ ð-f.t;/JI;K. ~~ f!MlIJ77tyOF. CDA'A'e"c77"..".s:I~ J1,NISR c:~ ~ tlos 1'1c. rrt./f-II(;.;lL/N ;?1J. go- ßI?AI1¿.70#__._.._.tJN77/£/O !=.. ~ C, 5/Y1I(Ke~.."., J~~'-" Sl'A1I!IiØIfCll'GIIIIV_· ',~" ·_H···' .....;.-.:-.,. , . ... . ..'. . - '...' -:-:-r GiÙ£YF-5.7fsCfiy-'Fiir¡OyF.<' ¡s -.ïN _ _Y/()t.11770N... O~ - .' ,-< ~ . _ ....._.. 4_ . _ . ..,. ...., .ßKT¡ct.¿J. d-~¿;i7Ié_ Cru.t..Cc.rIVE R&;~~~~~;';_~.·~·_:~~_·_ ~.-- ~1- ."- -- ----'..-... _·___·_·..n____ de' ."" '..r,. , ,¿,. . ,. 1I.Ilo. (k"~1-h...o-~ ?V~ .,.-~-~ ~di[,gt,-A::.:~.~ ~': ~ ~..~ i99():.Y:~·~' . _.......--......._........". .'W __. ,....._. . c.·..~... _. ". ..... J)' THAI /'1Ý,.E"/'f/'l.·o.YI:Æ-EÁlJ(/Ii!È:>.,P¡,t"l':.Aa NOT/c¿~, O~~Y~~ of{ #:u¡/rllJ1?OAJr_ iVlLL.n d.r- P""OWeiJ Ft:CÕ¡((}/N~ TD Jfr;;r:~¿. J';d ) 0;: Tn'=_CiX'- ~Ci7VE_.J9¡;"~Ii";'ftE.vr.,. . ., _. - .... I'JlII"'I' <;-""''''1'" ';'? ""'_ :J Till; I1Y =J1I!Q~¡f ~..71H.HPc/ß.-{)/'.¡v()<t~ f1:,/I£1)VI...."1,Nl--. ~."'_t é" ::)7'¡t!' f".' !.-Þ."';{" 4k,.. If"-.;,N 77~.~ tJ/"~_r.' NØu(:JfIÞV ':vP£,IIJ'hD """"""".I~~"- ~~ . ~.;.;y~~. . . :'.,;, 10... 'J1I~ h:~~¿¡p¡; 5l1'W"""VIi M.M.tI: ~ 1..OCAJ. ....QIOt!N'l""'S IUI4 ......,. ,4~~'< .!t L~t~~::~~~~~~I~l~~I~~'~~~~:~~~~ït\~~-~- 7 A description of the original position was filed as Exhibit #4. It is apparent from this description that the function of the Work Crew Supervisor was to oversee and train young offenders to carry out maintenance and construction tasks, and to act as a case manager to ~ ~:}:~ those offenders assigned to the crew. 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'!~; ce!l:lde:S will be ~ ';::0 ~ = , è:=- <=de. ::=9' oti'~ ....~ wu:" IotlrJ\: -=-- jeans. ::::lICk ~~ a:: ~. IIC::k "':"'..... ,- \)X¡~. ~-.- ~ saf~ty eq,,¡;;mm': !In ::s¡u:...-.1 \IbI!:I~. :hi '. cl,Q~.'-g '.~ = be ~ on ~ ~': \Ø!Il :e :~ ~~ a llO':: ,'. .., ,~ ~ .~~ ~ ~ = :e 'olCl::l ~~. ~ w::x :=w ~ h:l\.l:::S W".....u !:Ie ~ 0900 . ll4S ~ æ:d l30C . 1515 l':::>'~.,:-~"ç:j;; =:w ~-==- W"":"':' ~~_,' :':"'..::ay (~ ëC s:a-::r..;::y ¡.:.ol.i:2rs o~!l 1:le't'..-n -:=a :.=5 o! Oi30 - ~JO. :të' w::cX c:;;w ~.~ w""':': be ~~ :: ð$Sir":'-:; w:.~ ~ ~e::r;lB:: ~'::S:.:::;- -:.;~. ~ 1J;l. es= ':le~ ono - 0900 ~ ~ ~':;=-_-:.:e cti--e ~~. ~ \oIQ:"!t =- ~......~ :.s ~~ :l aè.!::e:1I ~ I: ::.ss =de. He/s.·,ð :.s ¡:e..-:'.:.';';è :':1 ""I:lI:' jlL""!fO!t4l :l.o'è=.=;- ~: ~ 'or..:=: ~ \lIli: s~ =.:.:-::.:..-:; ~1 = .a rt'4il:':e:nar..ce ':.:i.::=9 ì\.t:-.= '::.-re :..s -:..... wc::X ~ S'~.~ ~':'::!!l! ';0. ::-..ix ¡::e...-sc:'l.al ~...:.::;:; "".":::l ::z:."l~=œ ..:n:.;= Q:' ~"'.s.:;",:::':"" --. , '''::':'':::::=1. ,.. ~ .~ :'!!!W' ~.r-5c.::- ~ ~ ::;: -=e U5~!è. ;::.t~. on :'"yOJn; :;:=e..~ '':'':'":. Wc..-:--::' =:w i:SS~,.~~"'::S ...r,,-::,,:, ~ ;::1tC '=? -=:.e ~e.~C5~ ;;=.-:.:10: '.r...=: ~";lÚ: ~ :... '':'':'': O".l~ an:!. "::lIt ':';': ~~. ?~'"~=- == S'.:;:;l.;.:.es, =~-...a.ls, el::. !:: -;s _ el! :0 '::e :N:r.t:.=-=e;l ::I ":..~ ;':"~"':.~~=: ~r..so:' r-a oII?~.;..:.,..~ == S::::=s· :::=:'3 :: ~y A.M. 0: ec:":"::. ..~.::~-:I:!. ~l?~~v'\.d.l y' D ,. - ,1 8 I I ......2 ~ ,,' The \\ODe c=ew supe.."""'-;..sor will not leave his/her assigned duties without ...¡ . '. author'...zaticn of the unit maMger. If for any reason the ~ c::ew supe-""Vi.sor is unable tel start tne pmg::am at: tbe designated time, he/a nust notify the assi91ed 004 jnmedj,¡stely. The ~ c:t'eW supenisor will maintain a daily log am sutmit a weekly nq;:ort to the assigned 004 iD:1icating work perlomeã t.ìat week æxl other assigned C1uties, etc. Case Managaœnt: is one of the Jœy fuDcti.œs of a CCln'eC'"".ional oEiœ: wcrk:.ng with young cffenàars. The w:rdt c:ew StJperV'isor is alsO responsil:lle in the :role as Case Mlmager. He/sbe will be assigned a œse load, generally those assigped to the work c::ew-, mxi will fully take ps::-: in the young offende:s Plan of care - c:mpl.eting .=r¢1.:::SO and atterxting the apprc;~iate rree"".ings. The \Crk crew supø_.....,:isor will be expected to assist h:.is/her care· load whe..--ever poss1hle in œtìer to build and mamtain a posi-:ive working relations.....ip. . <I. i. '.s::1 ,:.:. E. 1'ucJœr, 004 c. D. Hatt D. Olver s. Cleary R. 'l'b::rrpsœ. A. Mezzera The griever testified that when he worked as a Young Offender Work Crew Supervisor ~-----..-:...--. :f' from May 1989 to April 1990, he had input over which offenders would be assigned to the crew; he had the option of working flexible hours of 7:00 a~m. to 3:00 p,m. and could work statutory holidays. He had a 1112 hour lunch break during which he would clean up a project. eat lunch, but otherwise be responsibility-free. The description of the Adult Work Crew Supervisor position was filed before me as Exhibit #9. 9 ~- CZ~~-4 c¡ 1'DœERLEA WORK CP:EW ~ Goal Stat:l!Ænt This position is designed for sr.ort-t;e.on re:sidenl:s en T.imbe:lea only. (l ¡ HaW are ~9i.d.ents assigned'? As necessary as deter.:uned by the Prog1:'an ? l.anning Soard. T1le Unit; Manage: mtr'J assic;n residents on a daily basis if reqt.lired. . 121 Dress Code a) - Re:sì.è.ents assigned to U'.e ~rk C::tl'.l wiU wear apprtlþriate clothing. - nus clOthing is not: t" be 100m on the Ul'Iit Whet: not IoOrlcinq. - unit iSsue is not to be 100m fo:' woorl<. - Wort "cOOts. gloveS and ot.l».er safet;y ~i;:rœnt £e to be wom as required . b) - The WOrk Crew Sl..ope:.-.risor is to wear either a maintenance 1.IllifoDn or personal clothing t."lat c0t9lies with t.."1l:1 Vanier staff clothing pelley. - wor:< bOQts an to 'oe ....om at ill times. III Hours of Wark - '!'l".e supervisor's hou.."'S will be t".ondòy - Friday (weekends ðnd st:at:l.ltoty " - tJ:ll..ic1ays ottl beC"oÆtn the hours of 0800-1600. r 4) Reporting. Recorditlq Responsi'oili ties - The work Crew Supe....visor is responsible to the '!';l.mberleð MaMger. In tÞ.e absence of the T1ml:lerlea Manager he/She is to ~rt to t.~ COnaol 004. - Wo~ ass~grmen'tS W1J.l t::e g1.ven by toM unit SUperVisor witb input !ran å'.e MAintenance SUper.risor. - Resp:::¡ns1D1lity for ~índing 1o()rk Will 't>e shared by the t"'.aÏtltetW1C8 S\Jpe-.....,isor and tl'le 'Nmberlea lW'Iager. , '. q - As this POS.i~ 1nWlves a pal.d meal break. tt'.e Work Crew Supervisor I wi..U assist on tHe cottage during. tht!= lunch hour. , . - The WOl:X C--ew SUpe..."""Ì.SOI' \l/ill not leave his/her assigne:1 duties without. "-_._..,- aut"J'lOr1zation f::an the Unit MðM.ger l)r Shift l/e - The WO.rl( c=ew SUpeMsO.t' will maintain a daily log and subnit wee..lùy maroranda to the 'I'j¡rt)er.!.ea Manager regarding '<lO:k perlotrned that week. nus re;;on 1$ to incluie other assigned c1uties. escorts. etc. · ~eques4::~ ~or Mterial. ~l1es,' et<:., for the ~ are to be sutmitted to ti".e ~i.">::enance Supe..-...uor via re-:¡ui...""Eld. stores fo~. · Woñ crew SUI;letvisQr IMY be deployed. to pe::OIm escorts as requi.."'ed. · It: is t."-.e responsi~ility of the Work C--t!:oI SI.-pL"'Visor to iceep his /he: supervisor in.fo:::med. Iotlen IT'Cra assignments a,.--e œquiIed. case ~t ~ work, ~ Supexvisor rra.y have an assigned case lœ.d and is ex;:ected to !'IarJdlrã ~sts. c::::rt'Ç)lete re;erts. etc. He or she Iofi.ll also be expected to a>::te rreoe UlgS as req¡.:.:--ed, 10 . On the basis of the documentary evidence and the viva voce evidence. particularly of the grievor, Ms, Mewett and Mr. Arbuthnot, I conclude that the positions are substantially similar and would satisfy the requirement in the settlement to the grievance to work as a YOWlgOffender Work Crew Supervisor. Indeed, the grievor indicated in his testimony that ~. he was prepared to accept tlùs assigrunent as substantially similar. and was prepared to accept the terms and conditions of work, had he not been asked to waive his right to grieve the change in the meal break to a half-hour with ongoing responsibilities in the cottage through the lunch period. There was a conflict in the evidence concenûng whether the change to a half·hour paid . .. ;"1:', . meal break with continuing responsibilities had been accepted by the grievor. The grievor testified that during an interView on November 9, 1992 with Ms. Mewett when the terms and conditions of Exlûbit #9 were being reviewed, Ms. Mewett reminded the grievor about a settlement of a previous grievance concerning a meal break reached May 25, 1992, and then asked the grievor to waive his right to grieve, apparently in relation to the changed terms ~....~ " concerning the meal break in the new position. Ms. Mewett defied asking the grievor to waive any right to grieve, but stated that the grievor rejected the terms about the meal brea~ dairning that he -wanted a half-hour away from the U1Út without responsibilities. Ms. Mewett contacted Mr. Arbuthnot about the possibility of arranging for the grievor to work 8Yí hours 'With a half-hour unpaid meal break. When this proposal was put to the grievor, Ms. Mewett claimed that he rejected it. Ms. Mewett indicated that it was the grievor who voiced his refusal to work according to the terms and conditions of Exlùbit #9 and that for this reason the position was ulùmately cancelled following a twO week notice period of the change, 11 . I In dùefJ Ms. Mewett was asked whether she had asked the grievor to waive any right I to grieve under the collective agreement and she denied that she had. She was not pursued I I in cross-examination concerning her denial. Funhennore. Ms. Mewett was not questioned I about the meal break grievance of May 1992 in cross-examination. In cross-examination. I" I Ms. Mewett acknowledged that the purpose of reviewing the terms and conditions of the new I position was to obtain the grievor's assent to the tenns of the settlement. She indicated that I the position had not been cancelledJ but there had been a number of details that had to be I I worked out between the admínistration and the grievor concerning the position1 although she had no personal knowledge of the content of these discussions or details. When asked . '" whether she knew if the grievor were involved in discussions with administration concerning :~~ the position. she admitted clearly that she did not know. When questioned about the hours of work t:hat the previous Young Offender Work Crew Supervisor position hadJ she conceded that she was not sure and agreed to suggestions that they may have varied from 7:00 a.m. to 3:00 p.m. or 7:30 a.m, to 3:30 p.m. Nonetheless1 she was positive that the break. from 11:45 ~_. ... -,' a.m. to 1 :00 p.m. would be paid and not a responsibility~free period of time. From her "r':. experience of working with other Work Crew SupervisorsJ they were expecte~ to help out o~ the unit within that time frameJ as would other correctional personnel. Indeed. it is clear fro~ the.wording of the position description that uthe work crew supervisor will be responsible for assisting with young offender supervision i.e., clean-up. escortS between 7:30 a.m. and 9:00 a.m. and throughout the entire lunch period." 12 . . Both Ms. Mewett and Mr. Arbuthnot admitted that they had conferred during the meeting with the grievor concerning the terms and conditions. particularly about the meal break time period. On the whole of the evidenceJ I conclude that the settlement tenns were not .:, . implemented because the grievor refused to accept the term of a half-hour paid meal break with ongoing responsibilities. He had testified that as Young Offender Work Crew SupeIVisor he had 1 V4 hours from 11 :45 a.m. to 1 :00 p.m. to clean-up and eat ills lunch. He testified that he was responsibility-free otherwise. It seems improbable that in a correctional faålity in which security alens or behaviour problems could occur at any timeJ that it would be .. . .' standard for the Young Offender Work Crew SUpeIVÏSor to have a paid meal break from 11 :45 a.m. to 1 :00 p.m. with the sole expectation being that the Supervisor would ensure that a project site be tidied up before a me~ break was taken. The Board prefers the evidence produced by management on this point as being more probable and consistent with the operational requirements and the written job description. ! "':1.;-_ ~._... 1 .~. In respect to the grievors allegation that Ms. Mewett demanded that he waive rights I " . to grieve. the grievor was U1l.1ble to explain what rights he was being required to waive and h~ responded that it was a general waiver. TIús seems improbable since the evidence as a whole reveals that there was an issue concenùng the meal bre.ak.Even at the hearing the grievor testified that he thought he 'Was entitled by law to a half-hour paid meal break away from the unit without responsibilities. Nonetheless, he attributed the dispute to Ms. Mewettls i ultimatum which led to cancellation of the position. On the contrary, the Employer's version of events seems more consistent with probabilities on the whole of the evidence, I conclude 13 · 'J I that the grievor was unwilling to accept a half-hour paid meal break that would entail continuing responsibilities on the unit. I prefer the evidence of Ms. Mewett that there was no ultimatwn put to the grievor that he waive his rights to grieve; the purpose of reviewing ¡.: 4: the terms and conditions of the Adult Work Crew Supervisor position specification was to obtain the grievers assent to the terms and conditions of that position. Contrary to what was argued by the Union, I conclude that if the position had been cancelled by the Employer. there would be no need for the Employer to give the grievor a two week notice period of change because the griever would not have been transferred from his position as Correctional Officer. The notice was necessitated because me Employer was acting on the supposition that ., , the grievor would accept the position in satisfaction of the settlement. Since the Employer had structured its actions on-the assumption that the grievorwould accept the Adult Work Crew Supervisor position. out of an abundance of caution, the Employer applied the twO week notice period to "transfer" the grievor bad to his position as a General Duty Correctional Officer. .0:......-. ~.~. '. On the whole of the evidence. I find that the Employer did not cancel the position of Adult Work Crew Supervisor. Ms. Mewett was aware that there were details still to be organised for the position and for this reason the meeting scheduled originally for November 4th 'WaS cancelled. Ms. Mewett took pains to reassure the grievor by telephone and through , " her memorandum of November 6th that the position would be put into effect as a means to satisfy the original settlement. As indicated. I have found that the settlement floundered because the grievor refused to accept the meal break term of the substituted position. The issue is what was the significance of tlús refusal in law and what consequences flow? 14 · I ' ' , The original settlement was tripartite between the Employer, the Union, and the grievor. The Crown Employees Collective Bargaining Act accords to an individual grievor some autonomy to make decisions about the carriage of his grievance. When the settlement '. r' agreement could not be implemented by the Employer according to its teons because of the " transfer of young offenders out of Vanier Centre, the Employer proposed a change to a material tenn of the original settlement agreement, that is, the panicular position that would - be offered. . The change was not so substantial as to be a derogation from the original agreement, but the change vvas significant enough to require the assent of all interested parties to constitute an effective novation. For tlùs reason, the meeting on November 9th was crucial " "'i : to obtaining such assent from the griever. Such assent was not obtained. The consequence is that there is no novation to-the settlement agreement effected and the original settlement could not be implemented. It follows from this that the original grievance is not withdrawn. The Union presented evidence that the grievor was the most senior candidate for the position and best qualified, having worked in the position the previous year. This evidence ~.!'''''.""'':.~- :·i~ vvas not countered by the Emp~oyer. Thus, the grievor has established on the merits that he ought to have been appointed to the position of Young Offender Work Crew Supervisor in May 1990, in accordance with the provisions of Article 4.3. - Article 4 - Posting and Filling of Vacancies or New Positions 4.3 In filling a vacancy, the Employer shall give" primary consideration to qualifications and ability to perform the required duties. YVhere qualifications and ability are relatively equal, length of continuous service shall be a consideration. 15 , ~ ," ~ . . Appoinunent to the position is no longer a viable option for remedy, since the position no longer exists and the substitute position offered differed in the hours of work. meal break and other features. In any event, the grievor did not agree to the substitution. With the length of time that has passed, it would be neiÙ\er efficacious or just to order that the grievor '. be appointed to another position and that remedy is not sought at this time. The remedy that remains is monet:.uy damages that would compensate the grievor for ¡ any losses flowing from the breach of the collective agreement. The grievor asserts that the I loss suffered was compensation for overtime opponunities he lost as a consequence of having worked as Correctional Officer from May 1990 to the end of April 1991. The grievor filed documents he had prepared for Ùle hearing which sUmmarized from his pay stubs the amount of overtime pay he had earned as a Correctional Officer in 1988-89 versus the amount he had earned in 1989-90 when he had worked as the Young Offender Work Group Supervisor and the amount that he eamed during the period in question from June 1990 to the end of May 1991 as a Correctional Officer. The grievor explained that in 1990.91, as a Correctional ':":.<-. .- Officer he was required to work five of seven weekends and on rotating shifts, and for this reason was not as available to work ovenime. The Employer objected that it did not have access to relevant documents pertaining to ovenime earned by the grievor as these documents were filed as evidence before a different Tribunal or a different matter. I have found that the grievor's version of events concerrúng the reason that the substituted position was not implemented in order to give effect to settlement is less credible. The evidence filed concerning ills claim for overtime pay was compiled by the grievor for the purpose of litigation and the underlying documentation was not available to the Employer 16 I · .' ... .. . J from which to effectively cross-examine the grievor. I accept as established that as a Correctional Officer working rotating shifts and five of seven weekends, he would have reduced access to work overtime than he did as a Young Offender Work Crew Supervisor working straight days, no weekends or statutory holidays. I am satisfied that the grievor ; worked as much overtime as he could in order to support his family. At some point in late 1991. which post-dates the relevant time period. Correctional Officers were able to work a compressed work week, which would enhance availability to work ovextime. However, I am not convinced on a balance of probabilities that the griever has proved his loss on reliable evidence as exceeding $10,000. Furthermore. the grievor contributed to his loss significantly J, , ,', by being so inflexible about accepting the terms and conditions of the substituted position as Adult Work Crew Supervisor. As such, the grievor has failed to mitigate his losses. Accordingly. for the reasons given, the grievor has not esublished entitlement to substantial monetary damages for the losses occasioned by the Employets breach of the posting provisions \ attributable to the appointment as Young Offender Work Crew Supervisor. I am prepared P;<-_._~...o-. to award ONY $1,500 in recogrùtion that some loss was occasioned to the grievor by the Employer's breach. The grievance is allowed in pan, Dated at IGngston, Ontario, on this 11 th day of July, 1997. C ~. ,'-" __. \~~~- é: 1 <~,.... " ') ~'. ,i .·....,~.\.!,...~~f-........ ... - \ Jane E. Emrich Vice-Chairperson ~ 17