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Home My WebLink About1999-1799.Group Grievance Klonowsky et al.02-09-27 Decision ~M~ om~o EA1PLOYES DE L4 COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1799/99 UNION#00B046 00B047 00B048 00B049 00B050 00B051 00B052,00B053 00B054 00B055 00B056 00B057 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Group Gnevance, Klonowski et al) Grievor -and- The Crown m RIght of Ontano (Mimstry ofFmance) Employer BEFORE Barry B FIsher Vice-Chair FOR THE UNION Don Martm Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Fateh SalIm Counsel Management Board Secretanat HEARING May 28 2002 2 DECISION On December 19 2001 I Issued an Intenm DecIsIOn wIth respect to the Issue of partIculars reqUIred to be gIven by the Umon to the Mimstry In respect to allegatIOns of dISCnmInatory conduct In relatIOn to the enforcement of a travel polIcy The December 19th decIsIOn IS attached to thIS award [ExhIbIt A] Although the partIculars were supposed to be filed by Apnl 30 2002, the Umon was granted an extensIOn and a letter settIng out the Umons' response was filed on May 31 2002 The letter from Mr MartIn of OPSEU settIng forth the Umon's response IS attached to thIS award [ExhIbIt B] The Mimstry by way of a letter to the GSB dated July 19 2002 asked for an order dISmISSIng the gnevance for faIlIng to abIde by the December 19th order and faIlIng to make out a pnma facIe case I gave each sIde a full opportumty to present theIr wntten argument, whIch each of them dId. I am satIsfied that the Umon response of May 31 2002 does not comply wIth my order of December 19 2001 In partIcular for the folloWIng reason 1 Paragraph 2 of the order reqUIred the Umon to provIde the dates of each alleged occurrence No such dates were gIven. The purpose of my order was so that the Mimstry would be able to respond to specIfic allegatIOns and from whIch an eXamInatIOn of the tIme and travel records would probably easIly reveal whether or not the polIcy was beIng applIed In a dISCnmInatory fashIOn. By only gIVIng names and not dates, the Mimstry would have to do extensIve research In order to respond to these vague partIculars That IS exactly the work the Umon should have done to be In complIance wIth my December 19th order In fact the Umon acknowledged In theIr argument that they had not complIed wIth paragraph 2 of my December 19th order Mr MartIn, In hIS letter to me of August 7 2002 stated, " There IS nothIng to be gaIned by pluggIng In a long lIst of dates for each allegatIOn" Well, that IS what I ordered, so the tIme to protest should have been when we were dISCUSSIng the makIng of the order not when the party responsIble for dOIng the necessary groundwork decIdes that they should not have to do the work at thIS tIme 2 Paragraph 3 of my December 19th order reqUIres the Umon to provIde" full partIculars " of each allegatIOn. ThIS would Include detaIled InfOrmatIOn shoWIng all the necessary elements of the allegatIOn. 3 In essence I expected that the Umon would respond In a fashIOn as follows Allegation One John Employee yt,ho yt,orked out of the Toronto Office and lived at 123 An~here Street, Brampton at all material times did on, January 4 2001 proceedfrom his house to hisfirstcall at 123 Ecbtard St Toronto a distance of22 km yt,hereas he should have first gone to the Toronto Office and then to the Ecbtards Street location, yt,hich yt,as only a distance of 8 km from the Toronto office He yt,as permitted by manager to do so and infact yt,as paid by the Ministry for the 22 km. ProvIdIng partIculars In thIS fashIOn would have allowed the Mimstry to respond to each IncIdent In a clear and conCIse fashIOn. It also would have made the heanng of thIS case proceed In an efficIent manner because everybody would know before the heanng exactly what the case was about. With respect to remedy I can see no practIcal remedy except to dIsmIss the gnevance The Umon has had ample tIme to do the necessary legwork; gIVIng It more tIme would make sImply a Joke out of the December 19th order Moreover claims of dISCnmInatIOn should not be thrown around wIth the hope that the eVIdence wIll come Into place as the case proceeds, rather the party makIng such an allegatIOn should have ItS basIc factual research In place at least by the tIme the case IS scheduled for a heanng. I note that VC LeIghton In a decIsIOn entItled GIannou 570/96 dIsmIssed a gnevance InvolvIng an allegatIOn of bad faith because no partIculars were provIded even In the opemng statements of the partIes The gnevance IS therefore dIsmIssed. Dated at Toronto thIS 2ih day of September 2002 Barry B FIsher Vice-Chair ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1799/99 UNION#00B045, 00B046, 00B047, 00B048, 00B049, 00B050, 00B051, 00B052, 00B053, 00B054,00B055, 00B056, 00B057 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befo re THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Addae et al) Grievor -and- The Crown In Right of Ontario (Ministry of Finance) Employer BEFORE Barry B Fisher Vice-Chair FOR THE GRIEVOR Don Martin Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Fateh Salim Counsel, Legal Services Branch Management Board Secretariat HEARING December 4, 2001 INTERIM DECISION This group grievance Involves Field Collection Officers and Field Services Officers working at the North York Regional Tax Office of the Ministry of Finance The essence of the grievance IS a complaint that the Ministry has applied a certain travel policy In a discriminatory and arbitrary fashion The policy In question IS found In a memo dated August 16, 1999 from the then Regional Manager, Services and Collection, In the North York Regional Tax Office The subJect IS travel policy The relevant provIsions are as follows "As of September 7, 1999 work will be assigned from your work location FCOs and FSOs are expected to report to their respective offices dally and then travel to any calls that they have to make FCOs and FSOs are also expected to end their working day at the office Affected staff are expected to preplan their field VISitS and discuss them with their manager where appropriate managers may authOrize a starting pOint other than the office ThiS authOrization must be received In advance from your manager to begin or end your day at other than your office Managers have been Instructed to take Into account which office the FSO or FCO IS assigned at and where they reside when assigning work. " The Union IS not contesting the legitimacy of the POliCY, only ItS application The theory of the grlevors' case IS that the Ministry has failed to apply thiS policy In a consistent fashion so as to constitute discrimination In essence, the Union IS alleging two Violations as follows 1 The manner In which the policy was supposed to be applied was that the employee would be entitled to charge time and travel from when they left their house to when they arrived at the first work location If that distance was less than the distance It would take gOing from the 2 employee's house to the employee's headquarters If the distance to the first site was more than the distance to the office, then the employee was not to charge travel or time for the time It took him or her to go to the head office, but then upon arriving at the head office could then charge both time and travel from head office to the first work location The Union alleges that thiS policy was not followed In respect to certain Individuals but enforced with respect to other Individuals and therefore constitutes a discriminatory practice 2 The second way In which the Union says thiS policy has been Implemented unfairly IS that employees with the consent and acquiescence of their managers have been allowed to charge for the time and travel It takes from gOing from the headquarters to the first location when In fact the Individuals have not gone from the headquarters but rather left from home and gone directly to the first location ThiS would In effect Involve the employee filing a travel claim which was not accurate on ItS face The purpose of thiS Interim order IS to require the Union's to provide sufficient particulars of the discriminatory treatment alleged I therefore order the Union to provide the Employer with the following particulars by April 30, 2002 1 The name of all Individuals who the Union alleges either received a beneficial application of thiS policy or a negative application of the policy In other words, those Individuals who were allowed to charge more than the policy as well as those Individuals who were not allowed to charge what the policy provides 3 2 The dates of each occurrence upon which they allege the policy was broken 3 The particulars as to which of the above two rules, or any other rules, that the Union alleges was broken, and how It was broken In other words, If the allegation IS that an Individual on a certain day was permitted to drive to the first site even though It was a longer distance than It would have been had the Individual even been required to commute to work first at his own expense and then bill only from headquarters to the first work location, the Union IS to provide full particulars of the allegations 4 It IS understood that the time frame In which examples are to be drawn are from September 7, 1999 forward being the date the policy was Implemented 5 At thiS pOint In time, I am putting no restriction on the geographic location of these examples so If the Union wants to draw upon examples from across the province that IS their prerogative The parties have agreed that thiS matter Will be continued on May 28, 2002 Dated at Toronto, thiS 19th day of December 2001 Barry B Fisher, Vice-Chair 4 ~ -- ~ig!1ml)~~~~~ ~R_ ~ '~~ ~ ~'~.. ..... ..... ~: 811111 ~r~"'.','. i ~~"- .,.....- ---,.' -, '_0 ..' . , -1tJIII' ~__. __ '. ~--.=,'O__H::'"nr, $ # '^' ~ .~ _ ..... ..&. _ L' 'II UJ&C ~rswL :'I _ "J ' ~ I J; ~~! .. . ~ ' ~ ~. . ... . . 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