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HomeMy WebLinkAbout1996-2779UNION97_12_11 O/IlTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'O/llTARKJ 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1BO DUNDAS STREET WEST SUITE600, TORONTOONM5G 1ZB TELEPHONEfTELEPHONE (41tJ) 32tJ-1388 180, RUE DUNDAS OUEST BUREAU (J{)(), TORONTO (ON) M5G 1Z8 FACS/MILEfTELECOPIE (41tJ) 32tJ-13Pe GSB # 2779/96,0141/97 OPSEU # 97U008, 97U056 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Gnevance) Grievor - and - The Crown 10 RIght of Ontano (Ministry ofCommumty and SocIal ServIces) Employer BEFORE W Kaplan Vice-ChaIr FOR THE G Leeb UNION Gnevance Officer Ontano Public SefVlce Employees Dmon FOR THE B Loewen EMPLOYER Counsel Legal SefVIces Branch Management Board Secretanat HEARING December 10, 1997 ~------ 2 Introduction The dispu'ce in this case is one of a number of issues to arise since the Board issued an extensive remedial order in June 1997 On September 29, 1997, I directed the employer not to .initiate any plans of care or transfer arrangements for any residents of any of the facilities subject to the award where the initiation of such activity had not begun at the time of this award. Put another way, the employer could continue with transfer arrangements for residents of the facilities where a substantive step other than the initial notification of facility closure or transfer has been given By and large, the parties have been successful in identifying the group of residents to whom this order indirectly applies However, a dispute arose at Prince Edward Heights, and that dispute proceeded, at the request of the parties, to an expedited hearing in Toronto Position of the Parties In bnef, it is the position of the union that no substantive steps have been taken with respect to the placement of certain residents assigned, in a characterization agreed to by the parties, to either Group I or Group" In the case of Group I, next of kin of the residents received, in addition to initial notification of facility closure, a three-page package consisting of a "Memorandum To Families of Prince Edward Heights Clients" which references the initial letter, describes in a general way the closure schedule, and identIfies three Community Placement Coordinators who may be contacted Also attached is a cover letter to a consent form authorizing the Ministry to release personal information about the resident to a transfer payment agency Group II consists of residents whose next of kin have been contacted by telephone 3 For the union, Mr Leeb argued that the activities summarily described above could not, on any fair reading, constitute a substantive step In so far as Group I was concerned, the additional information provided was extremely general and hardly constituted a movement towards developing a plan of care Likewise, with respect to Group II, the union pointed out that in one case, the telephone call to the next of kin, a call limited, for all of the residents in this group, solely to geographic placement preference of the resident, was made more than one year ago and neither it, nor the relatively more recent telephone calls, could be described as a substantive step For its part, the employer took the position that substantive steps had been taken in both cases (and it should be noted that while the employer agreed to argue this matter on the basis of the facts set out above, it did not concede that its activities were so limited) Counsel referred to some evidence before the Board indicating the likely reactions of next of kin upon receipt of the consent form, evidence which further suggested a similar reaction upon receipt of a telephone call, even one limited to a discussion of geographic preference in the placement of a resident, and took the position that the next of kin or other third party would be fully engaged havmg received eIther the documents or the telephone call And this, counsel argued, more than met the definition of a substantive step, and the employer asked for a declaration to that effect. Decision Obviously, these are difficult cases Fortunately the parties have, to a great extent, been able to resolve any disputes without the need of a heanng In this case, I am satlsifed that a substantive step has been taken in the case 4 of residents in both Group I and Group II and I so declare While it is somewhat troubling that the step for one of the residents in Group II was taken more than a year ago, I am not prepared, given the rest of the evidence indicating much more recent activity, to segregate that individual from the group Very simply, I am of the view that once the next of kin or other third party is personally engaged in the planning process, either in a preliminary way by telephone call seeking geographic preference for placement or in obtaining the formal legal consent so that personal information can be released, that constitutes a substantive step distinct from the general facility closure notification Accordingly, it is my view that the individuals in Groups I and II are not subject to the restrictions set out in my earlier order Finally, it should be noted that there was a dispute between the parties with respect to four individuals That issue also proceeded before me and evidence was elicited from the third party planner; evidence establishing a number of direct contacts, contacts which, by any fair measure, constitute a substantive step DA TED at Toronto this 11 th day of December 1997 I LV (~ William Kaplan Vice-Chairperson