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HomeMy WebLinkAbout1993-1102.Murphy.94-03-02 I \:. - ',\ ~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO II- GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT BOARD Des GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (4 6) 326-1388 180, flUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTAFlIO) M5G lZ8 FACSIMILE'TELECOPIE (416) 326- r 396 1102/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Murphy) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE N. Dissanayake Vice-Chairperson FOR THE G Adams GRIEVOR Grievance Officer Ontario Public service Employees Union FOR THE B Ross EMPLOYER Grievance Administration Officer Ministry of Correctional services HEARING February 28, 1994 ---- -------'-- ~-~ -" 2 DECISION This matter was heard pursuant to the expedited arbitration procedure contained in the collective agrement between the parties. Since July 1988 the grievor Ms Brenda Murphy has been employed in the Laundry Dept. of the Mimico Correctional Centre in the classification of Industrial Officer One. At least since then the consistent practice of the employer has been to schedule only correctional officers to work on statutory holidays Other employees including Industrial Officers received a paid statutory holiday on the designated statutory holidays It is common ground that on statutory holidays correctional officers worked in the laundry, while the grievor was scheduled off In her grievance dated March 5, 1993 the grievor claims that since 1988 she has been denied the opportunity to earn premium pay by working on statutory holidays, while the employer has used correctional officers to backfill her jOb on those days The union does not dispute the long line of GSB cases that have held that employees have no right under the collective agreement to work on statutory holidays The union acknowledges that it is an exclusive management function of the employer to determine which employees will work on a statutory holiday However, the union takes the position that the exercise of management rights is fettered by a duty to act in good faith. The crux - 3 of the union's case is that in denying Ms Murphy the opportunity to' work on statutory holidays, th~employer acted , unreasonably and in bad faith The union seeks compensation for each statutory holiday since July 1988 on which the grievor was treated in this manner. The employer made a preliminary motion that the grievance was. untimely and not properly before the Board On the merits, the employer denied that there was any bad faith It was submitted that the practice of scheduling only correctional officers is a long standing one which has been consistently followed, and that the practice was follo't<led pursuant legitimate operational reasons The evidence of Ms Murphy was that she was always aware that she was scheduled off on statutory holidays and that correctional officers worked in the laundry while she was off However, her uncontradicted testimony is that until late February 1993 she was not aware that she may have recourse against this situation under the collective agreement At that time, one of her co-workers grieved the same circumstances, and through conversation with him, Ms Murphy became aware of the right to grieve In Re Veronica Pierre, unreported endorsement of the Divisional Court dated July 11, 1990, O'Leary J stated at p. 2 that " it is only the subjective awareness of the employee that she has a complaint ~ 4 arising out of a possible violation of the agreement tpat sets the 20 day time limit running" It is cle~r on the evidence before me that Ms Murphy did not obtain that "subjective awareness" until late in February 1993 Therefore, the employer's preliminary motion fails and this grievance is arbitrable Turning next to the merits of the grievance, the union is correct in its claim that the employer must be held to a standard of good faith in the exercise of its exclusive management functions See, Re Bousquet, 541/90 (Gorsky) and Re Lumley, 1257/91 (Gorsky). The onus is on the union to substantiate its allegation that the employer has acted in bad faith. Bad faith may be demonstrated if there is evidence that the employer acted out of personal malice towards the grievor. There can be no such allegation here since the evidence is that Ms Murphy was treated in the same way as all other non correctional officer staff pursuant to a longstanding policy Also, if the union is successful in establishing that the employer "was pursuing some other goal under the guise of exercising an exclusive management function, then it could not be said to be exercising the function in good faith" (Re Bousquet, supra, at p 24) ---- -' 5 The union's claim was that the employer's action was unreasonable and in bad faith In Re Bousquet (supra) at pp 59-61 the Board observed as follows about the relationship between unreasonableness and bad faith Bona fides may have a broad or narrow meaning depending on the context See, Manon Schiralian, 914/86 (Roberts), referred to in Shaw, 410/88 (Watters), where the Board stated, at p 6 "Reasonableness in this context is a species of good faith" The Shaw case was concerned with a grievance which asked the Board to find that a purported release of a probationary employee under the authority of section 22(5) of the Public Service Act for ostensibly having failed to ~eet "the requirements of his position amounted to a dismissal without just cause which the Board had jurisdiction to deal with under s. 18(2) (c) of the Act In an earlier case decided by the Board, Leslie (1978), 22 LAC. (2d) 126 (Adams), at p. 134, the majority of the Board stated .. this Board is of the opinion that the employer cannot camouflage either the discipline or the termination of an employee for a reason other than the employee's failure to meet the requirements of his position.. by the guise of a 'release' under the Publ ic Service Act. This Board therefore, has jurisdiction to review a contested release to insure that is what it purports to be. But in the adjudication of such a grievance, this board is without jurisdiction to evaluate and weigh the reasons of the employer unless the Collective Agreement provides otherwise. The Board must only be satisfied that the employer, in good faith, released the employee for a failure to meet the requirements of his position As long as the Board can be satisfied that the employer has made an evaluation of that kind, it has no jurisdiction to review the fairness of correctness of that termination under [what is now s. 18(2) (c) of the Act] -- " 6 In commenting on the use of th~ term "unreasonable", in some earlier decisions of the Board dealing with the good faith exercise of the statutory right to "release" a probationary employee, the Board stated in Shaw, at pp 5-6 While this term (unreasonable) is utilized in the earlier decisions we do not take it to mean that we can review the merits of the employee's job performance and reinstate him if we find that assessment was "unreasonable" that the employee had not met the job requirements Reasonableness in this context is a species of good faith Whereas the phrase "bad faith" could encompass a release improperly motivated or maliciously intended, "unreasonableness" speaks more to an objective assessment that the release did not flow logically or rationally from the facts If, for example, there was simply no evidence that a probationary employee had not fulfilled or could not fulfil the jOb requirements, then no matter how well meaning were the actions of his superiors, the release would have been unreasonable exercise of authority . The Board in Shaw also dealt with the fairness requirement that there be a rational relationship between the facts and the release (at p 6) . This factor was found to be "nearly synonymous with 'reasonableness'. II In holding that ( ibid. ) the release can be reviewed as a discharge if the employer's "assessment that a certain set of facts justifies release is 'irrational' on any half- inteiligent view of the matter," the Board cautioned (ibid. ) that the rational relationship test should not be placed too high, as It is easy to brand as II irrational" any thought process or decision with which one does not agree The Deputy Minister must be free to make decisions, without being found to have acted irrationally merely because a board of arbitration might have come to a different decision. i .~ e- 7 That is, the test of good faith, in this context is not one of correctness The evidence indicates that under the practice of the employer only correctional officers who were already scheduled to work on the statutory holiday were used to 'work in the laundry No correctional officers who were otherwise scheduled to be off were recalled to perform duties in the laundry The work the correctional officers performed in the laundry primarily was the supervision of inmates who worked in the laundry Undoubtedly in so doing, they performed similar functions as those the industrial officers would have normally performed However, there was not a sing~e duty wh~ch they performed which could be said to be outside their classification or job descr iption The fact is that in a correctional institute there is a significant overlap of duties, such as security and safety, among different classifications The evidence does not establish that the correctional officers backfilled the grievor's position on statutory holidays They did not perform all of the duties she did as an Industrial Officer, and did significantly less of it More importantly every duty they performed was within their own job classification and position specification. The employer's uncontradicted evidence is that it followed the practice in question as a means of cost saving Whether the Board thinks that that goal will be achieved ---- - ~_._.- - .. 8 through the practice or not, it is a legitimate operational objective The facts, ~n other words, do not show that the employer's practice was irrational in the sense described by the Board in Re Shaw and Re Bousouet In the result, I find that the evidence does not establish that the employer exercised its management rights in bad faith The grievance is therefore dismissed Dated this 7th day of March, 1994 at Hamilton, ontario /~ ./c/ ...~~ ~ -, C.-c..-__ """1 -- ~_.- / / / - --_.- (j Nirnal V. Dissanayake Vice-Chairpersqn ./ I --