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HomeMy WebLinkAbout1994-0282.BROUILLETTE96_06_0 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 111111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 282/94 OPSEU # 94B709 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Brouillette) Grievor - and - The Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE L Mikus Vice-Chairperson FOR THE M Doyle GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE B Loewen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING November 15, 1995 Mr Vital Brouillette had been a carpenter for the Mimstry of Natural Resources for several years His gnevance c1auns that he was demed permanent employee status as per the memorandum of settlement dated June 13, 1991 He asked for permanent employee status recogmtIon, retroactIve benefits to February of 1992, a pensIOn plan optIon buy-back and interest. Each year smce April of 1980, he had sIgned a contract wInch classIfied bun as a Group 3 Seasonal Employee. Those contracts operated for rune months of the year and were contmuously renewed. His last contract began on April 23, 1990, and was to expIre on January 18, 1991 However, on January 14, 1991, days before Ins contract was to have expIred, he suffered a work place mJury and began receivmg Workers Compensation benefits. In February of 1991 he was contacted by Mr Lane Lacarte, the Land Engmeenng and AdmnnstratlOn SupervIsor for the Kapuskasmg area and asked whether he was mterested m entenng a retrammg program through the Workers CompensatIon Board. The gnevor testrfied that he took that offer senously because it had been Ins thrrd back mJmy and was afr81d that contmumg m the lme of work he had been domg would result m further mJunes. The gnevor stated that Mr Lacarte discussed a transfer to another MinIstry where there would be more emphaSiS on tecbmcal mspectIons. The gnevor already had knowledge of constructIons and the programs and concluded that the tecbmcal knowledge he would obtain would be useful to hun m the future. He accepted that program and began a two year trammg course as a Civil Engmeermg TechmClan. In March of 1991, Mr Lacarte arranged for the gnevor to meet With a case worker and m Apnl the grievor started upgradmg lus skills for entrance mto the Northern College, Porcupme Campus m Timmms for September At the same tune he was seemg a chIropractor for Ins back problems. After those wual discussIOns WIth Mr Lacarte, the gnevor had very lumted commumcauon With hun. He did talk to mm m September or 1 2 October of that year because of some problems he was encountenng WIth ills benefits. At the tune he asked l\1r Lacarte rfhe had contacted the Mirustry of Government Services With respect to the transfer and l\1r Lacarte told Ium he had not. The gnevor testIfied that he felt very secure after Ins dIscussIOns WIth Mr Lacarte and had no concerns about Ins future Dwmg tIns tune, the Dmon had filed a gnevance WIth respect to contract posItIons and had reached a settlement With the Mimstry of Natural Resources. That memorandum of settlement wInch was dated June 13, 1991, stated the followmg: In full and final settlement of the above captlon gnevance, the parties agree as follows; 1 The Ministry ShaIlldentify to the Union all Group 3 positIOns of at least 43 week duratIOn and shall also Identify any and all current mcumbents. 2. The MilllStry shall appoint all of the current incumbents of positions of 43 weeks or longer duration, provided they have completed at least two seasons of employment as a seasonal unclassified employee, or have been mcumbent m the pOSItion for the last 52 weeks of actlve employment, to the classified civil servICe effective the date of this settlement. 3 The MinIstry shall calculate each incumbent's length of continuous service as a classified CIvil servant by creditIng each incumbent WIth selllority accumulated under article 3.20 1 of the Collective Agreement, to be prorated as calendar rather than hourly servIce, thus providmg a calendar date of continuous service, based upon hours per day on the appropriate schedule. 4 The MinIster shall, upon havmg lll1plemented paragraphs 2 and 3 above, apply Article 24 of the Collective Agreement to all incumbents ulentIfied under paragraph 2 and these incumbents shall also have the benefit of the job security guarantees prOVIded by the MinIstry pursuant to the Deputy Minister's bulletin dated May 21, 1991 5 The Ministry agrees that pOSItIons Identified as 43 weeks or longer, but which have no mcumbent who shall be appomted to the civil service pursuant to paragraph 2, shall be posted m accordance with ArtIcle 4 of the Collective Agreement or staffed m accordance WIth other procedures agreed to by the partIes or deleted. Posted pOSItions will contam an area of search allowmg apphcatIOns only from current classified and unclasSIfied staff WIthin the MinIstry 6. The MilllStry and the Umon agree to appoint an equal number of representatives to a Joint conumttee to resolve the anomahes flowmg from this settlement where the duration of a pOSItion or tenure of the incumbent IS unclear or m dispute. The partIes further agree that there shall be full dIsclosure of all relevant mformatIon to facilitate tIus conumttee's operation. 7 Any dispute that is not resolved by the jomt committee under paragraph 6, above, maybe advanced by the Union directly to step 3 of the gnevance procedure as a means of speedy resolutIOn. 3 8 The Ministry agrees that seasonal unclassified positions shall not be of 43 weeks or more duration followed by 9 or less weeks mactive employment m any 12 month penod. The Umon agrees that the pOSItions below 43 weeks per year are properly characterized as seasonal in nature. 9 In the event that the MinIstry does not adhere to paragraph 8 above, the proVISIOns of this settlement shall apply However, the partIes may agree mutually to alternative remedies. 10 The MimstIy and the Umon agree that this settlement shall be communicated to MinIstry staff by way of snnultaneous communications. 11 This settlement shall be made in order of the Gnevance Settlement Board after the issuance of the communications m paragraph 10 above. 12. The gnevance is WIthdrawn. The gnevor testrfied that, while he was aware of the Memorandum of Settlement, he had no concerns about lus own status because he felt secure m the retrammg program. He was aware that some of the roll-overs resultmg from the Memorandum of Settlement were done over a penod of tIme, even up to a year after the memorandum was SIgned. The gnevor thought that he would be re-assessed once lus retrammg program had been completed. No one ever told him that he was not ehgible for the roll-over By letter dated September 13, 1993, the Workers CompensatIon Board wrote to the gnevor adVIsmg him that lus vocatIonal rehabilitatIon serVIces would soon be tennmated and that he was fit to return to mollified work. It was detennmed that he could work WIth the followmg restrIctIons. aVOld heavy lIftIng, aVOld prolonged repetItIve bendmg, aVOld low level work, aVOld repetitive pushIng or pullmg. The letter further acknowledged that he had seen lus doctor and that he had been referred to a specIahst for further assessment. Wlule he was at school he contmued to have senous back problems and ultImately was scheduled for surgery m October of 1993 He met WIth Ms. MIgneault who IS the DIStrIct Support SupervIsor at the tIme and she adVIsed lum that she had receIved a letter from Workers Compensation Board about estabhshmg a mollified work program. She expressed concern smce he was scheduled for surgery later m the year and adVIsed hun that there was no sense 4 m hun returmng to work until after the surgery At the tune the gnevor dId not know that he was not ehgible for a roll over pursuant to the Memorandum of Settlement. He smd they dId not dIscuss that memorandum at the tune because the pnmary Issue was lus surgery He made arrangements to return to the rehabihtanon program on a modIfied schedule In November of 1993, he agam met With Ms. Migneault to dIscuss lus employment status. At that tune he asked her why he had not been conSIdered for a roll-over She told hun that he dId not quahfy m that he had not worked the necessary number of weeks. He adVlsed her that If It had not been for the accIdent,. lus contract would have been extended and she dIsagreed. That was the first tune the gnevor heard that lus contract would not have been extended. They dIscussed the employer's responsibility under the Workers Compensation Act to return an lllJured worker to work and he was adVlsed that after 2 years of non employment, that obhganon lapsed. The meetmg concluded WIth Ms. Migneault tellmg hnn that she would check WIth Human Resources department m Cochrane WIth respect to lus status. AccordIngly, he was adVlsed m December of 1993, that lus contract was not to be renewed and that he was not ehgible for the roll-over He then filed lus gnevance dated December 14, 1993 In cross-exammanon, the gnevor conceded that he dId not expect to go back to lus Job m constructJ.on as a carpenter, but mamtamed that It was ills bebef he was still entJ.tled to a Job m constructJ.on on the technIcal SIde. As stated preVlously, Mr Lane Lacarte was the Branch SupefVlsor at the tune of the gnevance He testJ.fied that he was mvolved m the proposal for the gnevor's retrammg, wInch the MinIstry supported. He dIscussed the retrammg WIth the gnevor and, at that tune, the Issue of employment m Timmms arose Mr Lacarte told hun that the Workers Compensatlon Board would try to fmd a pOSItIOn for hun. He saId that he dId not bebeve 5 there would be any work WIthm the MinIstry of Natural Resources but that Government Semces was a much larger Mnustry and It was more likely they would be able to fmd a pOSItIOn for hnn m that MinIstry He wd not WSCUSS the roll-over agreement WIth the gnevor Mr Lacarte was responsible for personnel matters at the tlme and was responsible for reVIewmg the contract personnel WIth the branch supervIsors to detennme who fit the cntena for the roll-over He assembled a hst of those he IdentIfied as eligible and subrmtted It to the Human Resources Department. Those hsts were then forwarded for WscussIOn between the Umon and DIStrIct Office. Some people who clanned that they should have been rolled over were put on what was called an "anomaly lIst" and those sItuanons were conSIdered separately It was ills understandmg that It was the Umon' s responsibilIty to adVIse ItS members of therr elIgibilIty for the roll-over He testrfied that Kapuskasmg was a small office and the roll-over was very much a tOpIC of diSCUSSIOn at the tlme There were nonces on the bulletm board and talk amongst the staff. The gnevor VISIted the office dunng that tIme and It was Mr Lacarte's eVIdence that, although he acknowledged that he never had any drrect dISCUSSIon WIth the gnevor about It, he belIeved the gnevor was aware of those employees who had been rolled over and those who had not. Mr Lacarte demed m cross- exammanon that he ever used the word "transfer" when dIscussmg the MinIstry of Government ServIces. He stated that they SImply wscussed examples of posInons WIthm that Mimstry that the gnevor rmght consIder He stated that he would not have suggested that the gnevor could transfer to another MimstIy because vacancies have to be conducted accordmg to the postmg proVISIons of the Collecnve Agreement. He also demed that he would have dIscussed transfemng credIts and semonty because they are not transferrable for contract employees. He never prormsed the gnevor that he would look mto a Job transfer and tesnfied that he told the gnevor that It would be lus responsibIhty to do so 6 ARGUMENT The Mimstry took the posIoon that the gnevance was filed outsIde of the tIme lumts of the gnevance procedure and, therefore, was marbItrable It asked for a rulmg on the tImelmess Issue as a prehmmary matter It pomted to ArtIcle 27.2.1 of the gnevance procedure wInch states that employees who beheve that they have a gnevance must fIrst dIscuss the complamt or gnevance WIth theIr supervIsor WIthIn 20 days of fIrst becommg aware of It. If the grIevance is not resolved, the gnevor must process It to the next step of the gnevance procedure "MtInn an addIoona110 days. It relies on ArtIcle 27 13 wInch states as follows "where a grievance IS not processed Within the time allowed or has not been processed by the Employee or the Umon Within the time prescribed, it shall be deemed to have been withdrawn" Counsel for the MinIstry referred the Board to the case of Pierre and Ministry of Correctional Services (October 19, 1987) unreported (Venty) wluch stands for the proposIoon that what IS reqUIred on the part of the employee IS subjecove knowledge or awareness that there has been a vIOlaoon or a possible VIOlatIon of the proVISIons of the Collecove Agreement. In tlns case, argued the MinIstry, the gnevor knew, or ought to have known, that he had a dIfference WIth the MinIstry of Natural Resources. In June of 1991, the Minutes of Settlement were well known and the gnevor acknowledged that he was aware of them. He also acknowledged that he was aware of mdIVIduals who had been rolled-over under that agreement. He belIeved that he was eligible for the roll-over and yet he dId nothmg to detennme lus nghts at the tIme. He took no steps to mqurre mto lus employment status and dId not contact eIther the employer or the Umon. That was lus responsibIlIty and hIS failure to do so IS fatal to lus gnevance. He assumed that because of the length of lus servIce he would automaocally be ehgible He stated that he was not concerned about lus status because he was saosfied that he would be protected. He beheved that he would be retramed and transferred to another MinIstry There was no basIs for that belIef. In the meantune he took no steps to exerCIse rus nghts under the roll-over agreement. The MinIstry subtnltted that the reason he took no steps to clanfy lus posItion IS that he never expected to -.-- 7 return to work as a mamtenance carpenter His understandmg was that he would be retramed and as a technologist or technIcian. The MinIstry subnntted that It had suffered a prejudIce as a result of the delay If the gnevor had gneved at the tIme that he wanted to exerCIse lus rights With respect to the roll-over, lus retrammg nnght have been handled mfferently The MinIstry also referred the Board to the case ofOPSEU (Wood) and Ministry of Natural Resources (December 7, 1993), (Kaplan) GSB #364/91 and OPSEU and Ministry of Correctional Services (November 8, 1991), GSB #1140/91 (S Stewart) and OPSEU (Agnew et al) and Ministry of Correctional Services (September 6, 1998), GSB #0236/88 (DIssanayake) Ms Doyle, counsel for the Dmon, took the posItion that the gnevor lacked the subjective knowledge necessary to defeat tins gnevance The facts are unusual m this case The gnevor was removed from the work place and, therefore, work place Issues were not as ObVIOUS to hIm. He was attendIng a rehabilItation program m Timmms He had some dIscussIOn With lus supervIsor regardIng upgradIng lus skills, but we was never formally advised that he had no nghts under the Memorandum of Settlement. His understandIng was that he was protected while he was bemg retramed and once lus retrammg was completed, hIS nghts would crystallIze It was not until he entered mto senous mscussIOns about retummg to work that he became aware of the MinIstry's pOSItion With respect to lus ehgibility Accordmg to the Pierre deCISIon, argued the Dmon, It IS not snnply a matter of whether he knew there was a roll-over, but rather whether he knew that there had been a VIOlation of lus nghts WIth respect to that roll-over The eVIdence IS clear that he dId not. DECISION The partIes are m agreement that m order for thIS gnevance to succeed, the MinIstry must 8 show that the gnevor had the subjectIve knowledge that he had a dIfference or dIspute WIth the employer and that he failed to act upon It. The Umon's pOSItIon IS that the gnevor acted reasonably m commg to the conclusIOn that lus employment status was to be held m abeyance untillus retrammg was completed. It was clear from the eVIdence that durmg the dISCUSSIons With the gnevor about rus retrammg program no mentIon was made by anyone of the Memorandum of Settlement or how, If at all, it would apply to bun. Any diSCUSSIOns that took place before the fall of 1993, mvolved the Issue of retrammg and future placement. It was not unreasonable m the CIrCumstances for the gnevor to believe that lus situatIon was bemg handled m a manner dIfferent than the other seasonal employees. While I agree With the Mimstry that the gnevor's understandmg throughout the process was that he would not be returmng to work as a mamtenance carpenter, It IS equally clear that he mtended to return to work. The nghts that would have been afforded to bun as a classIfied employee are sIgmficant. There was no eVIdence that the gnevor understood that he was Walvmg those nghts. He was sunply Waltmg untillus retrammg was completed m order to estabhsh lus new workmg relatIonsmp With one of the tnmlstnes of the Government. On a subjectIve baSIS, I do not beheve that he understood that he had a dIspute WIth the employer With respect to lus employment status. For those reasons, the prehmmmy objectIon fails and a gnevance will proceed on ItS ments. The partIes are to contact the Registrar WIth a VIew to settmg further dates. Dated at Toronto th1s4thday of June, 1996 ~ J;uJ~ ~~1 riretta Mikus Vice Charr