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HomeMy WebLinkAbout1996-2601FIUK99_06_02 ~.- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2601/96 OPSEU # 97B 165 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Alex Fmk) Grievor - and - The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE RandI Hammer Abramsky Vice-Chair FOR THE DIane Roberts GRIEVOR Counsel, Ryder Wnght Blair & Doyle Barnsters & SolICItors FOR THE Len Marvy EMPLOYER Counsel, Legal ServIces Branch Management Board Secretariat HEARING Apnl 14, 1999 ~ GSB No 2601196 OPSEU (Alex Fiuk) and Ministry of Transportation At Issue IS whether the Employer vIOlated the dIsplacement nghts of the gnevor Alex FlUk, under ArtIcle 24 4 1 (d) That provIsIon states, In pertInent part, as follows 244 DISPLACEMENT 244 1 An employee who has completed hls/her probatIOnary penod, who has receIved notIce of lay-off pursuant to Sub-sectIOn 24.2, and who has not been assIgned In accordance WIth the cntena of 24 5 to another pOSItIon shall have the nght to dIsplace an employee who shall be IdentIfied by the Employer in the follOWIng manner (a) (b) (c) (d) Fmlmg dIsplacement under paragraphs (a), (b) or (c) above, the Employer WIll reVIew other classes whIch the employee held eIther on a full-tIme baSIS, or who performed the full range of Job dutIes on a temporary baSIS for at least twelve (12) months In the same mmIstry wIthm forty (40) kllometres of the surplus employee's headquarters. The Employer WIll IdentIfy, In reverse order of semonty, a less semor employee In the class WIth the maXImum salary closest to but not greater than the maXImum salary of the surplus employee's current classIficatIOn. The IdentIfied employee shall be dIsplaced by the surplus employee prOVIded he/she IS qualIfied to perform the work. The gnevor asserts that he should have been allowed, under thIS provlSlon, to dIsplace an employee m the classIficatIOn of Heavy Eqmpment Operator 3, a classIficatIOn whIch he had held m the past. 1 FACTS Mr Fmk s contmuous servIce date IS Apnl 26 1976 and at the tIme of hIS surplus he held the posItIOn of Semor TechmcIan TransportatIOn ConstructIOn. He was headquartered at Beaver Dams PrevIOusly he held the posItIOns of TechmcIan 1 ConstructIOn and Heavy EqUIpment Operator 3 ImtIally Mr Fmk's was offered a dIsplacement opportumty m a Heavy EqUIpment Operator 3 posItIOn. That opportumty was then rescmded and the TechmcIan 1 ConstructIOn posItIOn was IdentIfied as the "class wIth the maXImum salary closest to but not greater than the maXImum salary" of hIS posItIOn of Semor TechnIcIan TransportatIOn ConstructIOn. Upon reVIew of the semontv lIst, no one m thIS classIficatIOn wIthm forty kIlometres was aVaIlable for dIsplacement. The gnevor chose not to go beyond 40 kllometres and consequently, no dIsplacement opportumty was IdentIfied. The Umon does not challenge the Employer s mltIal reSCISSIOn of the dIsplacement or the "redomg" of It once errors were IdentIfied. POSITIONS OF THE PARTIES The Umon and the gnevor contend that the gnevor should have had the opportumty to dIsplace an employee m the Heavy eqUIpment Operator 3 classIficatIOn, a classIficatIOn whIch the gnevor had held In the past for mere than one year 2 The Employer relymg on OPSEU (Penny) and Ministry of Natural Resources GSB No 697/96 (VIce Chmr Venty)(l997), contends that It properlv complied wIth ArtIcle 244 led) when It IdentIfied the TechnIcIan 1 ConstructIOn classIficatIOn as the "class wIth the maXImum salary closest to but not greater than" the gnevor s current posItIon. Under Penny, the MmIstry asserts that there was no further oblIgatIOn to conSIder any other classIficatIOn that the gnevor may have held m the past. The Umon does not challenge the Penny decIsIOn or Its applIcabIlIty to thIS matter DECISION The outcome of thIS gnevance IS controlled by the board's deCISIOn m OPSEU (Penny) and Ministry of Natural Resources, supra. In that case, the gnevor, a long servIce employee who had held many posItIOns over the years, was surplused and there was no avallable dIsplacement opportumty m the Mimstry under Article 244 lea), (b) or (c) The Umon argued that under ArtIcle 24 4 1 (d) the Mimstrv had to search for a dIsplacement opportumty m any classIficatIOn prevIOusly held by the gnevor, not Just m the classIficatIOn wIth the maxImum salary closet to but not greater than the maXImum salary of the gnevor's current classLficatIOn. The board, based on the language of Article 24 4 1 (d), dIsmIssed the gnevance, concludmg that the MImstry properly lImIted ItS search to a less semor employee "In the class wIth the maXImum salary closest to but not greater than the maXImum salary of the 3 surplus employee s current classIficatIOn. The board held that the Umon s mterpretatIOn "appears to suggest an addItIOnal step not actually contamed In the language of the provIsIOn. (DeCISIOn at p 12) Based on the Penny decIsIOn, whIch I am reqUIred to follow the Instant gnevance must be dIsmIssed. The MmIstry "revIewed" the other classes which the gnevor had held for at least twelve months m the same mmlstry - Techmclan 1 ConstructIon and Heavy EqUIpment OperatIOn 3 It then attempted to "IdentIfy, m reverse order of semonty, a less semor employee m the class wIth the maXImum salary closest to but not greater than the maXImum salary of the surplus employee's current classrficatIOn" - WhICh was the Techmclan 1 ConstructIOn claSSIficatIOn. Smce no one m thIS classIficatIOn wIthm forty kllometres was avmlable for dIsplacement, the Mimstry proceeded to ArtIcle 24 4 1 (e) It dId not have to search for a dIsplacement OppOrtunIty m the Heavy EqUIpment Operator 3 classIficatIOn. To reqUIre It to do so would, as set out m Penny, add "an addItIOnal step not actually contamed In the language of the provIsIon." Accordmgly, under the board's decIsIOn m Penny, supra, the gnevance must be dIsmIssed. Issued thIS 2nd day of June, 1999 m Toronto rW ~ H-AtJrur; c;(\ rofu& Hammer Abramskv, Viceall' 4