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HomeMy WebLinkAbout1997-0278NORTHEY99_06_02 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARJO 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 800, TORONTO (ON) M5G 1Z8 FACSIMILE/TELEcOPIE (416) 326-1396 GSB # 0278/97 OPSET T # 97B492 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Patnck Northev) Grievor - and - The Crown In RIght of Ontano (MInIstry of TransportatIon) Employer BEFORE Randl Hammer Abramskv 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 0278/97 OPSEU (Patnck Northey) and MmIstry of TransportatIOn At Issue IS whether the Emplover VIOlated the dIsplacement nghts of the gnevor, Patnck Northev under Artlcle 244 1 (d) That provIsIOn states, m pertment part, as follows 24 4 DISPLACEMENT 244 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 m accordance WIth the cntena of 24.5 to another pOSItIOn shall have the nght to dIsplace an employee who shall bp IdentIfied by the Employer m the followmg manner' (a) (b) (c) (d) FaIlmg 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 m the same mmIstry wlthm forty (40) kllometres of the surplus employee's headquarters. The Employer WIll IdentIfy, m 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 TechmcIan 3 Survey a classIficatIOn whIch he l~ad held In the past. 1 FACTS Mr Northey s contmuous servIce date IS Apnl 26 1976 and at the tIme of hIS surplus he held the posItIon of Semor TechnIcIan TransportatlOn ConstructlOn. He was headquartered m Burlmgton. PrevlOusly he held the posItIons of TechnIcIan 1 ConstructlOn and TechnIcIan 3 Survey Imtlally, Mr Northey was offered a dIsplacement opportumtv m a Semor TechnIcIan TransportatlOn ConstructlOn m Bancroft. That opportumty was then rescmded and the TechnIcIan 1 ConstructlOn posltlOn was IdentIfied as the "class wIth the maXImum salary closest to but not greater than the maXImum salary" of hIS posItlOn of Semar TechnIcIan TransportatlOn ConstructlOn. Upon reVIew of the semonty lIst, no one m thIS classIficatlOn wIthm forty kIlometres was aVailable for dIsplacement. Mr Northey was then offered a bmnp m the Semor TechnIcIan TransportatlOn ConstructlOn classIficatlOn beyond forty kIlometres, m Trenton, but he declmed. The Umon does not challenge the Employer s mItIal reSCISSIon of the dIsplacement or the "redomg" of It once errors were Identlfied. POSITIONS OF THE PARTIES The Umon and the gnevor contend that the gnevar should have had the opportumty to dIsplace an employee m the TechnICian 3 Survey classIficatlOn, a classlficatlOn WhICh the gnevar had held m the past for more than one year 2 The Employer relymg on OPSEU (Penny) and Minzstry of Natural Resources GSB No 697/96 (V Ice Chau Venty)(1997) contends that It properly comphed wIth ArtIcle 24 4 1 (d) when It ldentlfied the T echmclan 1 ConstructlOn classlficatlOn as the "class wIth the maXImum salary closest to but not greater than the gnevor s current posltlOn. Under Penny the Mimstry asserts that there was no further obhgatlOn to consIder any other classlficatlOn that the gnevor may have held m the past. The Umon does not challenge the Penny declslOn or ItS apphcablhty to thIS matter DECISION The outcome of thIS gnevance IS controlled by the board s declslOn m OPSEU (Penny) and MznIstry of Natural Resources, supra. In that case, the gnevor a long servIce employee who had held many posltlOns over the years, was surplused and there was no avmlable dIsplacement opportumty m the Mimstry under ArtIcle 244 1 (a) (b) or (c) The Umon argued that under ArtIcle 24 4 1 (d) the Mlmstry had to search for a dIsplacement opportumty many classlficatlOn prevlOusly held by the gnevor, not Just m the classlficatlOn WIth the maXImum salary closet to but not greater than the maXImum salary of the gnevor s current classlficatlOn. The board, based on the language of ArtIcle 24 4 1 (d) dIsmIssed the gnevance concludmg that the Mimstry properly hmlted ItS search to a less semor employee "m 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 Dmon s IllterpretatIOn "appears to suggest an addItIOnal step not actually contaIlled III the language of the provIsIOn." (DecIsIOn at p 12) Based on the Pennv decIsIOn, whIch I am reqUlred to follow the Illstant gnevance must be dIsmIssed. The MmIstry "revIewed" the other classes whIch the gnevor had held for at least twelve months III the same mIllIstry - TechnICIan 1 ConstructIOn and Heavy EqUIpment OperatIOn 3 It then attempted to "IdentIfy, III 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. SIllce no one m thIS classIficatIOn wIthm forty kllometres was aVailable for dIsplacement, the Mimstry proceeded to ArtIcle 24 4 1 (e) It dId not have to search for a dIsplacement opportumty m the TechnIcIan 3 Survey classIficatIOn. To reqUIre It to do so would, as set out III Penny, add "an addItIOnal step not actually contamed m the language ofthe proVISIOn." Accordmgly under the board s deCISIOn III Penny, supra the gnevance must be dIsmIssed. Issued thIS 2nd day of June, 1999 III Toronto r9 ~ H- A-br?f/'/7 ~~ \ Kfudl Hammer Abramsky, Vic(5haJI 4