HomeMy WebLinkAbout1992-1088.Butler.93-09-21
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~,". --'/'i.~ ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DEL'ONTARIO
1111 GRIEVANCE COMMISSION DE
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SETTLEMENT REGLEMENT
, ' BOARD DES GRIEFS
180 DUNDAS STREET WEST -SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TEL~PHONE (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELECOPIE (476) 326-1396
1088/92
"- IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
~- Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Butler)
Grievor
- and - (
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Ernployer-
BEFORE Ii Finley Vice-Chairperson
J Carruthers Member
M O'Toole Member
FOR THE D Wright
GRIEVOR Counsel /
Ryder, Whitaker, Wright & Chapman
Barristers & Soliyitors
FOR THE J Smith
RESPONDENT Counsel
Legal Services. Branch
Ministry of community & Social Services
HEARING .February 3, 1993
April 19, 1993
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1088/92
) D E C I S I o N
This is a grieVance respecting the timeliness of the
implementation of terms of settlement of a grievance
On the first day of 'the hearing, the Employer reqllested an
adjournment since its only witness, whom Counsel, Mr John Smith,
considered cruciai to the process was unavailable due to her
absence from the country on a pre-arranged holiday Mr David
Wright, Counsel for the tlnion, submitted that the documents which,
had been filed by him presented a complete picture with respect
to the substantiv~ issue The Board granted the adjournment
after consider'ing the following
(a) Any prejudice to the Grievor could be adjusted through
compensation, particularly since the Grievor was now
employed
, (b) The ability of the Employer to respond to the grievance
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would be inhibited by not having its witness present
(c) There was no evidence of intentional or careless delay
on the part of the Employer
and
(d) The Board wished to allow both parties the opportunity
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of presenting and meeting the case
Following the ruling, the parties and the Board co-operated to
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adjourn the matter to a date within three months of the initial
hearing date
The Grievor, Ms Darlene Butler, who was employed at the \
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Oxford Regional Centre under a series of short-term contracts,
was dismissed as an unclassified employee, a dismissal which she
grieved The parties were successful in resolving this grievance
and signed Minutes of Settlement on February 28, 1992, with the
followi ncf terms
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1 The grievor and the Union hereby withdraw this
grievance,
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2 UDon execution of these Minutes of Settlement. the
Ministry.will aoooint the Qrievor to the classified
" service forthwith; [Emphasis added]
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3 It is agreed that upon appointment to the
classified service, the grievor will be a surplus ,
employee entitled to the provisions of "Article 24-
Job Security" of the Collective Agreement, signed the
5th day of September, 1990 It is further agreed that
the grievor will notrece i ve notice of lay-off or pay
in lieu of notice, pursuant to clause 24 11 of that
Agreement, [Emphasis in original] (check*)
4 Upon the appointment to the classified service,
the grievor's seniority date will be December 23, 1985;
5 / These Minutes of Settlement will be without
precedent or prejudice to any other matter between the
parties
This settlement was ih the context of the Collective Agreement
dated January 1, 1989 to December 81, 1991 It was signed by the _
Grievor, Ms Darlene Butler, Counsel for the Union, Mr Kevin
Whitaker, and by Counsel representing the Employer, the Ministry
o~Co~unity and Social Services, Ms Sharon White
Article 24 of the Collective Agreement reads as follows
ARTICLE 24 - JOB SECURITY
24 1 Where a lay-off may occur by reason of
shortage of work or funds or the abolition of
a position or other material change in
organization, the identification of a surplus
employee in an administrative district or
unit, institution or other such work area and
the subsequent assignment, displacement or
lay-off shall be in accordance with seniority
subject to the conditions set out in the
\ Article
24 2 1 Where an employee is identified as surplus he
shall be assigned on the basis of his
seniority to a vacancy in his ministry within
a forty ( 40) kilometre radius of his
headquarters provided he is qualified to
perform the work and the salary maximum of
the vacancy is not greater than three percent
(3%) above nor twenty percent (20%) below the
maximum salary of his classification, as
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follows
- a vacancy which is in the same class or
position as the employee's class or
position,
- a vacancy in a class or position in ,
I - which the employee has served during his
current term of continuous service, 0 or
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- another vacancy
24 2 2 With mutual ~onsent, a surplus employee shall
be assigned to a vacancy in his ministry
beyond a forty (40 ) kilometre radius of his
headquarters provided he is qualified to
perform the work and the salary maximum of
the vacancy is not greater than three percent
(3%) above nor twenty percent (20%) below the
maximum salary of his classification
R,elocation expenses shall be paid in
accordance with the provision of the
) Employer's policy
24 2 3 Where an employee has not been assigned in
accordanc"e with sub-sections 24 2 1 or
24 2 2, he shall be assigned on the basis of
his seniority to a vacancy in another
ministry within a forty (40 ) kilometre radius
of his headquarters provided he is qualified
to perform the work and the salary maximum of
the vacancy is not greater than three percent
(3%) above nor twenty percent (20%) below the
maximum salary of his classification, a~
follows
- a vacancy which is in the same class or
" position as the employee's class or
position,
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- a vacancy in a class or position in
which the employee has served during his
current term of continuous service, or
- another vacancy
24 2 4 Effective March 16, 1987, with mutual
consent, a surplus employee who has not been
assigned in accordance with subsection~
24 2 1, 24 2 2 or 24 2 3 shall be assigned to
a vacancy in another ministry beyond a fo;rty
(40 ) kilometre radius of his headquarters
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provided he is qualified to perform the work
and the s~lary maximum of the vacancy is not
greater than three percent (3%) above nor
twenty percent (20%) below the max.imum salary
of his classification Relocation expenses
shall 'be paid in accordance with the
provision of the Employer's policy j
24 3 Where an employee is assigned to a vacancy in
accordance with sub-sections 24 2 1, 24 2 2,
24 2 3 or 24 2 4, Section 5 4 of Article 5
(Pay Administration) shall apply
\ 24 4 An employee who does not attend a placement
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interview when requested by the Employer or
who does not accept an ass. i g n men t in
accordance with sub-sections 24 2 1 or 24 2 3
shall be laid off and the provisions of
Sections 24 5, 24 6 and 24 10 shall not
apply
24 5 Where an employee has not been assigned to a
vacancy in accordance with sub-sections
24 2 1, 24 2 2, 24 2 3 or 24 2 4, he shall be -
subject to lay-off in accordance with the
following applicable sections
24 6 1 An employee who has completed his
probationary period and who is subject to,
lay-off as a surplus employee, shall have the
right to displace an employee who ( shall be
identified by the Employer in the following
manner and sequence
(a) The Employer will identify the employee
with the least seniority in the same
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\ class in which the surplus employee is
presently working and if such employee
has less seniority than the surplus
employee, he shall be displaced by the \
sur.pIus employee provided that such
employee is in the same mi n i s try and
within a forty (40) kilometre radius of
the headquarters of the surplus employee
and provided that the surplus employee
is qualified to perform the work of such
employee
(b) If no employee in the same class has
less seniority than the surplus
employee, the Employer will identify the
employee in the class in the same class I
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series immediately below the class in
which the surplus employee is presently
working who has the least seniority and
i f he has less seniority than the
surplus employee, he will be displaced
by the surplus employee provided that
such employee is in the same ministry
and within a forty ( 40) kilometre radius
of the headquarters of the surplus
employee and provided that the surplus
employee is qualified to perform the
work of such employee
-, (c) Failing displacement under (a) or (b)
the Employer will review the classes in
the same class series in descending i
order until a class is found in which
the employee with the least seniority in
the class has less seniority than the
surplus employee In that event such
e m p.l 0 ye e will be displaced by the
surplus e mpl oyee provided that such
employee is in the same ministry and
within a forty ( 40) kilometre radius of
the headquarters of the surplus employee
and provided that the surplus employee
is qualified to perform the work of such
J employee
(d) Notwithstanding the above, in the event
that there are one or more employees in
one or more classes in another class
series in which the surplus employee has '-
served during his current length of
continuous .s e r v ice who have less
seniority than the surplus employee, the
surplus employee will displace the
employee with the least seniority in the
class with the highest salary maximum
(no greater than the current sa la r Y \
maximum of the surplus employee's class)
and provided that the surplus employee
has greater seniority than the displaced
employee hereunder, provided that such
employee is in the same ministry and
wi thin a forty (40 ) kilometre radius of
the headquarters of the surplus employee
and proV(ided that the surplus employee
is qualified to perform the work of such
employee
be to a class I
24 6 2 Any displacement shall limited
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which has a salary maximum no greater than
the maximum o-f the surplus employee I s -current
class and Section 5 4 of Article 5 (Pay
Administration) shall not apply
24 7 The employee must indicate inwr i ting to the
Director of Human Resources his intention to
displace another employee as far in advance
as poss ible but not later than two ( 2 ) weeks
in advance of his date of lay-off If he
does not indicate his intent to displace
another employee within this period, he shall
be deemed to have opted to be laid off and
"- the provisions of Section 24 10 shall not
apply
24 8 Where the employee chooses not to exercise
his rights under Section 24 6, he shall be
laid off and the prov is ions .of Section 24 10
shall not apply
24 9 An employee who is displaced by an employee
who exercises his right under Section 24 6
shall be declared surplus and the provisions -
of Article 24 shall applyl
24 10 1 Effective March 16, 1987, where a surplus
employee has not been assJgned to a vacancy
---- in accordance with Section 24 2 and no
displacement is possible under Section 24 6
and the employee is within the two ( 2 ) week
period pr.ior to his date of lay-off, he shall
be assi.gned on a retraining basis to a
vacancy in his ministry wi thin a forty (40 )
kilometre radius of his headquarters, subject-
to the following conditions
(a) Such assignments shall be made on the
basts of seniority,
(b) Such assignments s ha 11 be made during
the two ( 2 ) week pe-r i od prior to the
employeets date of -lay-off, where, based
on information in its records or as
provided by the Union or the surplus
employee, the ministry determines that
the employee has transferable skills
which would enable him to meet the
normal requirements of the work of the
vacancy within a maximum ret;r:aining
period of twenty-five (25) days;
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(c) Sqch assignments shall be limited to a
class which has a s~lary maximum of no
greater than the maximum of thesurpl us
employee's current cla~s and Section 5 4
of Article 5 (Pay Administration) shall
not apply;
(d) Where a surplus employee is assigned to
a vacancy in accordance with 24 10 1,
his date of lay-off shall be extended to
accommodate the retraining period, up to
a maximum of twenty-five (25 ) days,
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( e ) A surplus employee who has been assigned
to a vacancy in accordance with 24 10 1
shall have no rights under Sections 24 2
or 24 6 following his original date of
lay-off,
( f ) If, at the end of the retraining period,
the surplus employee meets the normal
requirements of the vacancy to which he
has been assigned, he shall be confirmed
in that vacancy, .
(g) I~, at the end of the retraining period, \
the surplus employee does hot meet the
( normal requirements of' the vacancy to
which he has been assigned, he shall be
laid off with'out any additional notice
under Section 24 11
24 10 2 In 24 10 (b) and (d) , days shall includ,e all
days exclusive qf Saturdays, Sundays and
designated holidays I
24 10 3 A surplus employee who does not accept an
ass i gnment in accordance with 24 10 1 shall
be laid off
24 10 4 Where an employee has been assigned under
24 10 1 to a vacancy in a class with a salary
maximum of the class he held immed i.a te ly
prior to such assignment and subsequently he
is laid off in accordance with 24 10 1 (g),
any termination payments to which he may be
entitled under Article 53 (Termination
Payments) shall be based on the salary he was
receiving immediately prior to the assignment
under 24 10 1
24 10 5 The assignment of a surplus employee to a
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vacancy in accordance with Section 24 2 shall
have priority over an assignment under
24 10 1
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24 11 An employee ~hall receive a notice o~ lay-off
or pay in lieu thereof as follows
(a) two ( 2 ) weeks' notice if his period of
employment is less than three ( 3 ) years,
( b') three ( 3 ) weeks' noti~e if his period of
employment is three ( 3 ) years or more
but less than four ( 4 ) years,
( c) 'four ( 4 ) weeks' notice if his period of
employment is four ( 4 ) years or more but
less than f iye ( 5 ) years,
(d) six ( 6 ) weeks' notice if his period of
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\ employment is five ( 5 ) years or more but
less than seven ( 7 ) years,
(e) seven ( 7 ) weeks' notice if his period of
employment is seven ( 7 ) years or more .
but less than eight ( 8 ) years,
( f ) e i-ght ( 8 ) weeks' notice if his period of
employment is eight ( 8 ) years or more
but less than ten (10 ) years,
(g) twelve (12) weeks' notice if his period
of employment is ten (10) years or more;
with copies of such notice to the H u ma n
Resources Secretariat and the Union
24 12 As assignment under this Article shall not be
considered a promotion or a demotion "-
24 13 Where an employee has been identified as
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surplus, reasonable time off with no loss of
pay and with no loss of credits shall be
granted to attend scheduled interviews for
p6sitions wi~hin the public service, provided
that the time off does not unduly interfere
with operating requirements
24 14 1 Effective March 16, 1987, where a person who,
prior to release, had completed at least one ( 1 )
year of continuous service, has been released and
a position becomes vacant in his former ministry
within a forty (40 ) kilometre radius of his former
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headquarters wit h. i n one ( 1 ) year after his
release, notice of the vacancy shall be forwarded
to the person at least fourteen (14) days prior to
./ the closing date .of the cQmpetition 'and he shall
be appointed to the vacancy if ~.
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(a) he applies therefor within the fourteen
(14 ) days, and
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(b) he is qualified to perform the required
dut ies, and
( c) no other person w.ho is qualified to
perform the required duties and It/ho has
a greater length of continuous service
applies for the vacancy pursuant to this
subsection
24 14 2 Appointment under 24 14 1 shall be limited to
a class which has a salary maximum no greater \
than the maximum of the clal?s the person held
when identified as a surplus employee and
Section 5 4 of Article 5 (Pay Administration)
shall not apply .
24 14 3 A person shall lose his rights under 24 14
when
(a) he does not attend a placement interview
when requested by the Employer, or,
(b) he does not accept an appointment in
accordance with 24 14 1, or,
(c) having accepted an appointment in
accordance with 24 14 1, he fails to
report for duty wi thin two (2 ) weeks of
receiving written notice of the
appointment
24 14 4 The assignment of a surplus employee to a
vacancy in accordance with Sections 24 2 or
24 10 shall have priority over an appointment
under- 24 14 1
24, 14 5 Where a person who has been released is
reappointed under this Article to the same
position or a position having the same
classification as the position which he
occupied immediately prior to his release, he (
shall be reappointed at a rate within the
salary range applicable to the position
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equivalent to the r.ate at which he was paid
,immediately prior to his release
24 14 6 Where a person who has been released is
appointed under this Article to a position in
a classification that is not the same as the I
classification of the position which he
occupied immediately prior to his release, he
shall be appointed at a rat~ within the
salary range applicable to the position
commensurate with his qualifications and
experience, including previous relevant
public service
24 15 It is under~tood that when it is necessary to
assign surplus employees or appoint persons
in .Iaccordance with this Article, the
provisions of Article 4 (Posting and Filling
of Vacancie~ or New Positions) shall not
apply
24 16 1 Effective March 16, 1987, where it is
necessary to release an employee who has
completed his probationary period, because of -
the introduction of technological change in
equipment or methods of operation, at least
three ( 3 ) months' notice in advance of the
change shall be given to the employee \
affected and to the Union
24 16 2 The matter will then be referred to the join.t
consultati<:m committee of the parties to
discuss and to attempt to resolve the problem
with relation to the reallocation and
retraining of the affected employees with a
view to minimizing the effects of the
Employer action required to be taken
24 17 For purposes of Article 24 lay-off means the
same as release as per Section 22(4) of The
publ-ic Service Act, Revised Statues of
Ontario, 1980, Chapter 418
~ 24 18 Article 24 shall apply to probationary
; employee's in accordance with the terms of the
Minutes of Settlement set out in Appendix 10 )
Following the signing of the settlement, correspondence took
place between Mr Whitaker and Ms White The following is the
chronology of that correspondence and of other relevant events
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March 5, 1992 - Regular Mai~
Sharon Whi te to Kevin Whi taker, copy to Fred Loach (Manager of
Employee Services, Oxford Regional CentreJ
Please find enclosed two copies of the Memorandum of
settiement in this matter I have forwarded a copy of I
the Settlement to Fred Loach at the Oxford Regional
,C en t reI f M s But I e r has que s t ion s reI ate d t 0
implementation, Mr Loach should be able to address
them
March 9, 1992
Diane Manship (Senior Human Resources Representative, Oxford
Regional Centre) received a copy of the Minutes of Settlement
from Fred Loach and was assigned the task of implementing them
March 19, 1992 - Facsimile and Regular Mail /
Kevin Whitaker to Sharon White r-
I have had the Local President, Mr Terry Fink, at the
Oxford Regional Centre contact Mr Fred Loach at the
ORC Apparently, Mr Loach has stated to Mr Fink that
he ,has had no notice of the settlement and until he -
. receives notice from you, he is not prepared to do
I anything This is obviously of some concern to the
gr ievorand the Union, and I would appreciate r i t ri f YOU
could contact me immediately so we can deal with this
[Emphaq,is added]
March 27, 1992 - Facsimile and Regular Mail \
Kevin Whitaker to Sharon White
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Since our last telephone conversation, I can confirm
for you that the gr ievor did not work in any other
classification than the Residential Counsellor 1
I understand that she has been informed by the Human
I Resources Staff at Oxford Regional Centre that there
. are no vacancies into which the grievor would be able
to move pursuant to the provision of Article 24
I As you know, Article 24 2 1 allows the employee to be
placed into any vacanc;:y wi thin the specified salary
range as long as she is qualified to perform the work,
and the vacancy is within a 40 km radius of her
headquarters This would mean that the grievor is
eligible to move into any vacancy in any position with
the salary range regardless of the classification If
this type of position is not available, under Article
24 2 3, the grievor is eligible to be movedj into
similar vacancies in other Ministries within 40 'km of
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the headquarters"
I would ask you to confirm for me that a search has
been done for both vacancies under Articles 24 2 1 and
24 '2 3 The grievor was left with the impression that
the Ministry was only looking at other vacancies within
her classification at the Oxford RegiOnal Centre "
You have also informed me that there are no positions
available pursuant to the provisions of 24 6 1 of the
Collective Agreement The Agreement provides in
Article 24 10 ]. for an assignment to a va~ancy on the
basis of a retraining position within 40 km of the
headquarters Again, I would ask you to confirm for me
that the Ministry has attempted to identifv these tvoes
of vacancies i f no vacancy can be found which
satisifies the provisions of Articles 24 2" I and
24 2 3
) Please let me know if I can orovide vou with anx.
further information which mav assist the Ministrv in
meeting its obliqations under Article 24. [Emphasis
added]
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Ma v 4. 1992 - Grievance filed
Mav 15. 1992 - Facsimile
Kevin Whitaker to Sharon White
The last time we spoke about this matter, I informed
you that Ministry officials at the' Oxford Regional
Centre were taking the position that Ms Butler would
have to compete for positions that might be available
As we discuss~d, this is contrary to the agreement that
we had reached in the settlement of this grievance and
I would aooreciate it if vou could obtain the
Ministrv's comoliance with the terms of our ~ettlement.
During our last discussion, you had mentioned the ,
possibility of perhaps amending the language of the
settlement so that it would be more clear as to their
exact obligation
I would appreciate it if you could call me at your
earliest convenience so that we may discuss this
[Emphasis added]
Mav 20. 1992 - Facsimil~ and Regular Mail
Kevin Whitaker to Sharon White
Further to our last telephone conversation, I now have
instructions from the Union We are not prepared to
agree to any further amendment of the Minutes of
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Settlement In our view, the Minutes reflect the
parties' agreement, and the Union is not prepared to
enter into any further document which would explicitly
set out or recogniZe a time limit on the Article 24
rights
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i As you may know, a grievance alleging a breach of the
settlement has already been initiated and if wej:an not
resolve this, it would appear that that grievance would
go forward to the Grievance Settlement Board My
suggestion would be that we attempt to implement the
settlement as it stands, as you and I have discussed,
so that the issue of the time limited nature of Article
24 rights do~s .not arise As I suggested in our
telephone discussion yesterday, if we can make some
arrangements that would satsify Ms Butler's concerns,
the issue of the 6 month I imi t would not have to be
litigated
I would appreciate speaking to you further about this
June 1.1992 - Facsimile and ~egular Mail
Sharon White to Kevin Whitaker Copy to Fred Loach [Diane -
Manship received- a copy from Fred Loach ]
This letter is further to our numerous telephone
conversations respecting the implementation of the
settlement of the grievance between OPSEU, Ms Butler
and the Ministry, relating to the termination of Ms
Butler's "unclassified" employment with the Ministry
Ms Butler will be appointed to the " c l,a s s i fie d " staff
and be accorded a leave of absence without pay for a
six month period, following her appointment At the
time of her appointment, which will occur in mid-June,
Ms Butler will be given six months' notice of her
release from employment with the Ontario Public
Service The mid-June date should allow time to
arrange for Ms Butler to be placed an the service wide
"surplus" li'st administered by the Human Res-oUrces
Secretari'a~ For a period of six months, and in
accordanc-e with the Settlement Agreement, Mi:; Butler
will be entitled to priority consideration for
appointment to vacancies within the OPS for which she
is qualified
I trust that this will clarify the matter for your
clients
June 2, 1992 - Facsimile and Re~ular Mail
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Kevin Whitaker to Sharon White
Thank you for your letter of June 1, 1992 As we
discussed, the Union is not prepared to agree that the
release which will occur six months after Ms Butler's
appointment is consistent with the provisions of
Article 24 of the collective agreement or the original '"
settlement with was entered into between the parties in
this matter
The Employer corresponded with the Grievor
June 16. 1992 - Regular Mail
Diane Manship to Darlene Butler with a copy to T Watson
Further to our conversation of June 8, 1992, this will
confirm that the Minutes of Settlement per your
grievance have been implemented
The Redeployment Unit has been not i f ie d that you have
been declared surplus effective June 15, 1992 with a
lay off. date of December 31, 1992 You are therefore
entitled to surplus provisions in accordance with the
settlement dated February 28, 1992 The period up to
and including December 31, 1992 will be considered as ~
leave of absence without pay
Should you have any questions, do not hesitate to
contact me
The Gr ievo.r has been employed as a classified employee with
he Ministry of Health since January 25, 1993 at the London
Psychiatric Hospital as a result of her June 15, 1992 placement
on the surplus list
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The parties agreed to the Grievor's appointment to the
classified service "f or.thwi th" The appointment took place as of
June 15, 1992, 15 weeks after the signing of the Minutes of
Settlement At issue is whether or not the appointment on June
15, 1992 was "forthwith", "upon execution of the Minutes of
Settlement", and if not, was the delay reasonable under the
circumstal1ces, and how the responsibility for that delay should
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be apportioned
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The Union takes the position that " for thwi th" should mean
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within a two-week period and seeks retroactive compensation for
the period March 15, 1992 to June 15, 1992 Counsel for the
Union, Mr David Wright, submitted t ha t , even though the Grievor
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found a position through the surplus system at the end of January
1993,
(a) there may have been positions available between March
15 and June 15, 1992 that the Gr i ev.or would have been
entitled to claim
(b) the Grievor had no income during that period
(c) there may have been a position available during the
March 15 to June 15, 1992 period which she would h~ve
preferred
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Mr Wright Ireviewed the surplus system set out in Article 24 and
noted that it is only the first stage which the Union is claiming
has been violated and that is not claiming that the Grievor was
denied r i.ghts to the other three stages - bumping, retraining or
recall
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The .U n i on is seeking a remedy which would require the
Employer to carry out its responsibilities under the settlement
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retroactively Mr Wright proposed that the remedy should be
fashioned as follows
- the Employer be required to have the Redeployment Unit
review all vacancies which arose between March 1 and June
15, 1992 and forward the r~sulting list to the Union
- The Grievor's qualifications and salary parameters
should then be tested against the vacancies on this
list
Compensation, if any is due, Mr Wright submitted, should be
based on these findings and the Board should rema in seized with
respect to the implementation of the above proposed remedy and
with respect to any dispute regarding compensation
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The Employer took the position that the delay was caused by
an ambiguity in paragraph 3 i of the Minutes of Settlement and
required until June Ii 1992 to be clarified and that the
implementation was not untimely Mt John Smith, Counsel for the
Employer, submitted that, should the Board find that the
implementation was unt ime ly, that there were in any case, no
positions available during the disputed time frame
Ms Manship, Senior Human Resources Representative,
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ack nowledged in her testimony that she had been given the
responsibility for implementing the Minutes of Settlement by Mr
Loach, Manager of Employee Services at Oxford Regional Centre
She stated that the implementation of Item 3 (supra) of the
Minutes of Set t 1 e.me n t required clarification since her
interpretation of the Grievor's entitlement was at odds with t-he
Union's 'l'here was, on her part, confusion with respect to the
intent of Item 3 According to Ms Manship's interpretation, the
vacancy provisions did not apply p i-nce she wanted to ensure
that Ms Butler ~hould receive that to which she was entitled
under the terms of the settlement, it was agreed at the meeting
on March 27, 1992, between Ms Manship, and Ms Butler and her
Union representative that they would contact their respective
Counsel Between March 27 al1d June 1, 1992, the matter was dealt
with strictly by Counsel and the clarification from the
Employer's Counsel was received by Ms Manship on June 1, 1992
Ms Manship acknowledged in cross-examination, that had Ms
White's letter of June 1, 1992 (suora) setting out the ,procedure
to be followed with respect to the implementation of the Minutes
of Settlement, been before her on March 1, 1992, Ms Butler would
have been placed on the classification list by mid-March and the
matter would have been sent to the Redeployment Unit at that time
and the search for a suitable vacancy should then have been
underway
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Mr Wright submitted that a finding that the settlement
/
had been breached would not in any way be indicative of male
fides on the part of the Employer It would, rather, be a
determination of fact - namely what the Employer was required to
do under the terms of the Minutes of Settlement and whether or
not this had been don~ Mr Wright argued that the Union had
consistently maintained that the intent of the terms of the
settlement was that the Grievor should be treated as any other
surplus employee The Ministry, has not, he submitted asserted
1
there is anything wrong with the Union's interpretation He
stated that, while -Diane Manship had drawn a particular and
mistaken interpr~tatiOri of the terms of the settlement, that the
interpretation was not the Ministry's and that there was no
letter from Ms White to say that the Grievor was only entitled
to recall rights under Article 24 14 .
I t wa s , he stated, due to a Ministry e~ployee's particular
interpretation of a document, that an internal Ministry problem
\
was created which prevented the Grievor's prompt re~erral to the
Redeployment Unit There is no ambiguity in the Minutes of
Se t t lement, Mr Wright submitted, noting that the Ministry was
not asserting any, and that the parties agree on the
interpretation of the Minutes of Settlement
In order to assess the Grievor's loss, if any, the Ministry
must, Mr Wright argued, provide the ;Eull, unedited provincial
\ list from February 28 to June 15, 1992, to the Union, to allow it
to test for ~tself whether or not there was any vacancy and
~ therefore whether the Grievor suffered any loss
Mr Smith, for the Ministry, submitted that the
implementation did begin "forthwith" following Item 2 of the
Minutes of Settlement (suora) The Minutes were delivered \
promptly to the facility and the il!dividual responsible for its
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implementation began immediately to implement it; and it was at
the outset that the ambiguity arose Other issues were also
discussed during the period between February 28 and June 15,
1992, and the isslie of time I imi t still remained an issue after.
June 1, 1992, only to be. resolved by the Grievor's placement in
January 1993, which resulted from the "agreed procedure" The
interpretation of "forthwi th-" must cons ider the circumstances, he
submitted, and it was not possible to implement the terms of
settlement due to a disagreement between the parties which
demanded a resolution
Mr Smith stated that should the Board determine that a
br~ach of the Minutes of Settlement has occurred, the Ministry
does not object to an order requiring that "a clear document" be
produced He asked that the Board remained seized
In reply, Mr Wright commented that it was notable that the
Ministry had not called Shar-on White, who signed the document,
there was no suggestion that Ms White did not understand this
document The clarification required was within the Ministry
He characterized the situation differently, stating that this was
\
not a qliestion of the parties trying to resolve ambigui t i,=s, but
a history of the Union's trying to enforce the terms of the
settlement
\
A review of the documentary and viva voce evidence
demonstrates the following
1 During the period between February 28 and June 15,
1992, telephone conversations took place relating to the
issues raised in evidence, about which no evidence was
presented
2 The Employer initiated the preliminary st'ep of
forwarding a copy of the Minutes of Settlement promptly to
the Oxford Regional Centre (within 4 administrative
working days)
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3 Ms Manship, according to her ev idence-, received a
copy of the Minutes of Settlement on March 9, 1992
(within 6 administrative working days)
4 As of March 19, 1992, the Union expressed its
concern that the local Employer has yet to receive the
Minutes of Settlement ( 14 administrative working ->
days have now elapsed)
5 On March 19, April 2, May 15 and May 20, 1992, Mr
Whitaker wrot~ to Ms White attempting to have the
Ministry implement the terms of the settlement,
expeditiously
6 During the period between March 19, 1992 an.d May 15,
1992, Ms White suggested certain amendments to the
language, not to the substance, to clarify the document for
her client, while Mr Whitaker continued to seek prompt
compliance and closed the door on language change
-
discussions on May 20, 1992
7 It is only on June 1, 1992 that Ms White informs Mr
/
Whitaker that the terms of the settlement will be
implemented in mid-June and, on June 16, 1992 that the
Grievor is notified in writing by Ms Manship that she has
been declared surplus effective June 15, 1992, and that: the
Minutes of Settlement have been implemented
8 There was a lapse o'f 14 working days between Ms
Manship's receipt of the Minutes of Settlement and her
meeting with the Grievor and her Union representative
The Board has considered the evidence and has concluded
that there was an unreasonable delay in implementation and that
this stemmed from Ms Manship's particular interpretation and
confusion around Item 3 of the Minutes of Settlement The delay
was exacerbated when she failed to contact Ms White be'fore the
March 27th meeting, 14 administrative working days after
receiving the settlement for implementation No explanation was
offered for this delay The de lay became further extended when
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Ms White, rather than telling Ms Manship at the time of her
inquiry what she had agreed to on behalf of the Ministry and what
had to be implemented, in~tiated a dialogue with Couns~l for the
Union about amending language so that her client could better
understand it Counsel for the Union did /participate in Ehat
discussion and did not close the door on it immediately, however
he did so while persisting in his attempt to have the Ministry
move on its implementation-
It cannot be said that the Ministry appointed the Grievor to
the classified service "forthwith" At the same time, there was
no male fides involved in this delay But this delay may have
resulted in a loss to the\ Gr i evor The Board recognizes this
possibility and the necessity of assessing the potential loss
through a review by both parties of a complete, clear, list of
vacant positions available in the Ontario Public Service The
Board considers that March 16, 1992 would reasonably comply with
the "forthwith" agreed to by the parties, under the
circumstances, and therefore orders that the list from March 16,
1992 to .;rune 15, 1992 inclusive, be provided by the Employer to
the Union within fifteen days of the issuance of this decision
Should it be determined that a potential loss exists, then
the parties are to determine compensation and interest, according
\ to the "Hallowell House Limited" formula The Board will remain
seized of this matter with respect to both the production of
documents and determination of the potential loss and
compensation
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Dated at Kingsto.n this 21st d9-Y--of ~eptembery ;1993
~~I
. H~len S Finley !
Vice Chair .-
c
I
~ J Carruthers
~ Member
7!1 t O"~
M O'Toole
Member
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