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HomeMy WebLinkAbout1996-2683FURNESS99_06_02 O/llTARKJ EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'O/llTARKJ 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, 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 # 2683/96 OPSEU # 97B223 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Paul Furness) Grievor - and - The Crown In RIght of OntarIO (MInIstry of TransportatIOn) Employer BEFORE RandI Hammer Abramsky V Ice-Chair FOR THE DIane Roberts GRIEVOR Counsel, Ryder Wnght BlaIr & Doyle BarrIsters & SOlICItorS FOR THE Len Marvy EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING Apnl 14, 1999 " GSB No 2683/96 OPSEU (Paul Furness) and MInIstry of TransportatIOn At Issue IS whether the Employer vIOlated the dIsplacement nghts of the gnevor, Paul Furness, under ArtIcle 24 4 1 (d) That provIsIOn states, In pertInent part, as follows 244 DISPLACEMENT 24 4 1 An employee who has completed hIs/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) FailIng 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 mInIstry WIthIn forty (40) kIlometres 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 prOVIsIon, to dIsplace an employee In the classIficatIOn of Heavy EqUIpment Operator 3, a classIficatIOn WhICh he had held In the past. 1 FACTS Mr Furness s contInUOUS servIce date IS May 18, 1977, and at the tIme of hIS surplus he held the posItIOn of Semor TechmcIan TransportatIOn ConstructIOn. He was headquartered In Owen Sound. PreVIOusly he held the posItIons of TechnIcIan 1 ConstructIOn and Heavy EqUIpment Operator 3 ImtIally, Mr Furness was offered a dIsplacement opportumty In a Heavy EqUIpment Operator 3 pOSItIOn In Owen Sound. That opportumty was then reSCInded and the TechnICian 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 TechrucIan TransportatIOn ConstructIOn. Upon reVIew of the semonty lIst, no one In thIS classIficatIOn WIthIn forty kIlometres was aVailable for dIsplacement. Mr Furness was then offered a bump In the classIficatIOn of Semor TechnIcIan TransportatIOn ConstructIOn beyond forty kIlometres, In Kenora, but he declIned. The Umon does not challenge the Employer's InItIal reSCISSIOn of the dIsplacement or the "redOIng" 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 In the Heavy eqUIpment Operator 3 classIficatIOn, a classIficatIOn whIch the gnevor had held In the past for more than one year 2 The Employer, relYIng on OPSEU (Penny) and Ministry of Natural Resources GSB No 697/96 (VIce Chair Venty)(1997), contends that It properly complIed wIth ArtIcle 244 l(d) 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 MInIStry asserts that there was no further oblIgatIOn to conSIder any other classIficatIOn that the gnevor may have held In 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 In 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 aVailable dIsplacement opportumty In the Mimstry under ArtIcle 244 l(a), (b) or (c) The Umon argued that under ArtIcle 24 4 1 (d), the MImstry had to search for a dIsplacement opportumty In any claSSIficatIOn prevIOusly held by the gnevor, not Just In the claSSIficatIon WIth the maXImum salary closet to but not greater than the maXImum salary of the gnevor's current claSSIficatIOn. The board, based on the language of ArtIcle 24 4 1 (d), dIsmIssed the gnevance, concludIng 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 emplovee s current classIficatIOn." The board held that the Umon s InterpretatIOn "appears to suggest an addItIOnal step not actually contaIned 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 In the same mImstry - TechnIcIan 1 ConstructIOn and Heavy EqUIpment OperatIOn 3 It then attempted to "IdentIfy, In 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 classIficatIOn" - WhIch was the TechnICian 1 ConstructIOn clasSIficatIOn. Smce no one In thIS classIficatIOn WIthIn forty kIlometres was aVailable for dIsplacement, the Mimstry proceeded to ArtIcle 24 4 1 (e) It dId not have to search for a dIsplacement opportumty In the Heavy EqUIpment Operator 3 classIficatIOn. To reqUIre It to do so would, as set out In Penny, add "an addItIOnal step not actually contaIned m the language of the provISIOn." AccordIngly, under the board's deCISIOn m Penny, supra, the gnevance must be dIsmIssed. Issued thIS 2nd day of June, 1999 m Toronto ~UL i-I-7fbnm 1\ Rand\ Hammer Abramsky, Vicumr 4