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HomeMy WebLinkAbout1996-2779.UNION98_07_20 ~ 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 600, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (416) 32~-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEfTELECOPIE (416) 32~-139(S GSB #2779/96, 0141/97 OPSEU #97U008, 97U056 IN THE MATTER OF AN ARBITRATION Under THE CROWN ElVIPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLElVIENT BOARD BETWEEN OPSEU (UnIon Gnevance) Gnevor - and - The Crown III RIght of Ontano (Mimstry of CommunIty and SocIal ServIces) Employer BEFORE S Stewart Vice-Chair FOR THE G Leeb UNION Counsel Ontano PublIc ServIce Employees UnIon FOR THE B Loewan EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat REA RING July 14, 15, l6, 1998 ~ INTERIM DECISION The general issue before me relates to whether the Employer has fulfilled its obligation to make reasonable efforts in accordance with Appendix 9 of the Collective Agreement There have been a number of interim rulings and agreements between the parties in relation to various issues that have arisen in the course of this proceeding, most recently an agreement between the parties dated June 24, 1998, regarding the commencement of placement planning for residents Paragraph 13 of the June 24, 1998 agreement provides that for residents who have no known next of kin and for whom there is no existing advocate, a member of the social work department in the institution will initiate contact with the resident to determine whether the resident wishes the planning process to commence If the social worker determines that a resident does wish to commence the planning process it is agreed that the determination of the social worker in that regard will be conclusive In the memorandum, the parties have specifically reserved on the issue as to who will make the determination at Prince Edward Heights As the parties were unable to resolve this issue between themselves, they requested that I determine the matter I advised the parties of my determination at the hearing on July 15, 1998 At the request of the parties, I am providing my decision in writing ~---- 2 The Employer expressed concerns about the paragraph 13 assessments being carried out at Prince Edward Heights by Mr Bruce polnick Mr polnick is the social worker who would be assigned to the assessments in the ordinary course The Employer has raised the question of whether Mr Polnick has a conflict of interest which ought to preclude him from conducting the assessments, arising by virtue of his part-time employment with a local agency which ultimately may receive residents from Prince Edward Heights There is no suggestion that a conflict of interest is created by his part-time employment in connection with Mr Polnick's usual duties at the institution or in connection with the duties to be carried out by the social worker pursuant to the other provisions of the agreement, relating to circumstances in which the resident or his representative has requested that planning commence The concern of the Employer is that another agency may perceive a potential for Mr Polnick having influenced the resident's ultimate placement choice in connection with his determination of whether the resident wishes to commence the planning process While it is appropriate for the Employer to conduct itself with care in identifying possible conflicts of interest, I am not satisfied that the potential concern identified provides a basis for concluding that Mr Polnick would have a conflict of interest in carrying out the responsibilities contemplated by paragraph 13 of the Agreement As Vice-Chair Finley noted in Ministrv of 3 Health & OPSEU ( Edwards) , 2216/94, a decision referred to me by Mr Loewen, certain persons may well perceive a conflict of interest on the flimsiest of evidence Therefore, she concluded, it is appropriate that an objective standard of reasonableness be applied in determining whether a conflict of interest exists In applying that standard to these circumstances I am not persuaded that a conflict of interest exists The planning process, wherein the resident's choice is made, is undertaken with a third party planner Mr Polnick is only required to determine the resident's wishes in relation to the commencement of the planning process In my view, the nature of the determination that Mr Polnick would be required to make pursuant to paragraph 13 is not such that his part-time employment with a local agency would provide a reasonable basis for an apprehension of favouritism or unfair advantage to that agency Accordingly, Mr Polnick will conduct his duties as a social worker at Prince Edward Heights in accordance with paragraph 13 of the June 24, 1998 agreement and there is no need for a consideration of the relative merits of the other candidates Dated at Toronto, this ~~ay of July, 1998 ~bJ-vd S L stewart - Vice-Chair