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HomeMy WebLinkAbout2000-1214.Panovski.05-02-03 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2000-1214 2001-0003 2001-1063 2002-2150 2003-0064 2003-0065 2003-1073 UNION# 2000-0521-0047 2000-0521-0048 2001-0263-0003 2001-0233-0128 2002-0233-0034 2003-0233-0005 2003-0233-0006 2003-0233-0018 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (PanovskI ) Union - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE FelIcIty D Bnggs Vice-Chair FOR THE UNION Scott Andrews Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Greg GledhIll Staff RelatIOns Officer Mimstry of Commumty Safety and CorrectIOnal ServIces HEARING May 13 July 7 August 24 & October 29 2004 2 DeCISIon In September of 1996 the Mimstry of CorrectIOnal ServIces notIfied the Umon and employees at a number of provIncIal correctIOnal InstItutIOns that theIr facIlItIes would be closed and/or restructured over the next few years On June 6 2000 and June 29 2000 the Umon filed polIcy and IndIVIdual gnevances that alleged vanous breaches of the collectIve agreement IncludIng artIcle 6 and artIcle 31 15 as well as gnevances relatIng to the fillIng of correctIOnal officer posItIOns In response to these gnevances the partIes entered Into dIscussIOns and ultImately agreed upon two Memoranda of Settlement concermng the applIcatIOn of the collectIve agreement dunng the "first phase of the Mimstry's transItIOn" One memorandum, dated May 3 2000 (hereInafter referred to as "MERC I" (Mimstry Employment RelatIOns CommIttee)) outlIned condItIOns for the correctIOnal officers whIle the second, dated July 19 2001 (hereInafter referred to as "MERC 2") provIded for the non-correctIOnal officer staff Both agreements were subJect to ratIficatIOn by respectIve pnncIples and settled all of the gnevances IdentIfied In the related MERC appendIces, filed up to that pOInt In tIme WhIle It was agreed In each case that the settlements were "wIthout preJudIce or precedent to posItIOns eIther the umon or the employer may take on the same Issues In future dIscussIOns" the partIes recogmzed that dIsputes mIght anse regardIng the ImplementatIOn of the memoranda. AccordIngly they agreed, at Part G paragraph 8 The partIes agree that they wIll request that FelIcIty Bnggs, Vice Chair of the Gnevance Settlement Board wIll be seIzed wIth resolvIng any dIsputes that anse from the ImplementatIOn of thIS agreement. It IS thIS agreement that provIdes me wIth the JunsdIctIOn to resolve the outstandIng matters Both MERC 1 and MERC 2 are lengthy and comprehensIve documents that provIde for the IdentIficatIOn of vacanCIes and posItIOns and the procedure for fillIng those posItIOns as they become avaIlable throughout vanous phases of the restructunng. GIven the complexIty and SIze of the task of restructunng and decommIssIOmng of InstItutIOns, It IS not surpnSIng that a number of gnevances and dIsputes arose ThIS IS another of the dIsputes that have ansen under the MERC Memorandum of Settlement. 3 When I was ImtIally InvIted to hear theses transItIOn dIsputes, the partIes agreed that process to be followed for the determInatIOn of these matters would be vIrtually IdentIcal to that found In ArtIcle 22 16.2 whIch states The mediator/arbItrator shall endeavour to assIst the partIes to settle the gnevance by medIatIOn. If the partIes are unable to settle the gnevance by medIatIOn, the medIator/arbItrator shall determIne the gnevance by arbItratIOn. When determInIng the gnevance by arbItratIOn, the medIator/arbItrator may lImIt the nature and extent of the eVIdence and may Impose such condItIOns as he or she consIders appropnate The medIator/arbItrator shall gIve a SUCCInct decIsIOn wIthIn five (5) days after completIng proceedIngs, unless the partIes agree otherwIse The transItIOn commIttee has dealt wIth dozens of gnevances and complaInts pnor to the medIatIOn/arbItratIOn process There have been many other gnevances and Issues raised before me that I have eIther assIsted the partIes to resolve or arbItrated. However there are stIll a large number that have yet to be dealt wIth. It IS because of the vast numbers of gnevances that I have decIded, In accordance wIth my JunsdIctIOn to so determIne that gnevances are to be presented by way of each party presentIng a statement of the facts wIth accompanYIng submIssIOns NotwIthstandIng that some gnevors mIght wIsh to attend and provIde oral eVIdence, to date, thIS process has been efficIent and has allowed the partIes to remaIn relatIvely current wIth dIsputes that anse from the contInuIng transItIOn process Not surpnsIngly In a few Instances there has been some confusIOn about the certaIn facts or sImply InSUfficIent detaIl has been provIded. On those occaSIOns I have dIrected the partIes to speak agaIn wIth theIr pnncIples to ascertaIn the facts or the ratIOnale behInd the partIcular outstandIng matter In each case thIS has been done to my satIsfactIOn. It IS essentIal In thIS process to aVOId accumulatIng a backlog of dIsputes The task of resolvIng these Issues In a tImely fashIOn was, from the outset, a formIdable one With ongOIng changes In Mimstenal boundanes and other orgamzatIOnal alteratIOns, the task has lately become larger not smaller It IS for these reasons that the process I have outlIned IS appropnate In these CIrcumstances Luke PanovskI was a RecreatIOnal Officer at Vamer In June of 2000 Mr PanovskI and Mr Barry Thomas, representIng the Employer entered Into a Memorandum of Settlement to resolve 4 earlIer gnevances That agreement stated that the Employer agreed to assIgn the gnevor to Guelph CorrectIOnal Centre (G C C ) as a RecreatIOn Officer 2 effectIve July 10 2000 It was also agreed that there would be no travel tIme or relocatIOn expenses assocIated wIth the agreement. He was assIgned to G C C on July 15 2000 In accordance wIth the agreement. In the penod between March 5 2001 and March 3 2003 Mr PanovskI filed mne gnevances allegIng vanous InfractIOns of the collectIve agreement. A number of heanng days were spent dealIng wIth these dIsputes ClanficatIOn surroundIng certaIn facts was requested and provIded. AddItIOnally I attempted to medIate thIS matter wIthout success HavIng consIdered the gnevor's detaIled wntten facts and the submIssIOns of the partIes, I wIll now deal wIth each gnevance In turn. In November of 2000 two gnevances were filed that contended he was unreasonably deployed and that he should be paid mIleage SInce hIS re-assIgnment to G C C In my VIew the Memorandum of Agreement was clear In paragraph 2 that the gnevor was to be redeployed to G C C and was not entItled to mIleage costs Paragraph 2 stated, "the partIes agree that there wIll be no travel or relocatIOn expenses assocIated wIth thIS assIgnment" It would be dIfficult to find that mIleage IS not a travel expense Further I would find It odd that the Employer agreed to reassIgn an employee to another InstItutIOn and have mIleage costs OWIng wIthout lImIt. That IS to say that It IS beyond credulIty that the Employer would transfer the gnevor to Guelph wIth the possIbIlIty that It would forever have to pay mIleage costs to the gnevor untIl he retIred or resIgned. Such an agreement makes lIttle sense and I am of the VIew that paragraph 2 of the Memorandum ensures that would not happen. For those reasons, those gnevances are dIsmIssed. On March 5 2001 a gnevance was filed assertIng that the Employer vIOlated the collectIve agreement because It was USIng full tIme staff In a Regular Part Time posItIOn at Vamer CorrectIOnal Centre By way of remedy Mr PanovskI asked that the "RP T posItIOn be converted to a full tIme posItIOn" and that he receIve a new redeployment offer wIth travel expenses It IS InSUfficIent to set out the facts of thIS IncIdent. The Employer retaInS the nght to manage ItS workforce In accordance wIth ArtIcle 2 of the collectIve agreement. Of course, the collectIve agreement and vanous other agreements fetter those nghts but I am aware of no document that would hamper the Employer's nght to determIne whether to assIgn a specIfic task 5 to a full tIme employee and not to a part tIme employee AccordIngly I have no JunsdIctIOn to alter a part tIme posItIOn to a full tIme posItIOn. The gnevance IS demed. Mr PanovskI filed two gnevances on October 11 and 12, 2001 Each alleged the Employer "through the use of subterfuge" created a "new redundant" posItIOn for hIm at the Guelph CorrectIOnal Centre AccordIng to the gnevor he had been told that G C C was soon cloSIng but he would retaIn nghts under ArtIcle 20 and that Maplehurst, Vamer and OCI were wIthIn forty kIlometers He has also been told that CNCC would be a publIc Jail It was the Employer's contentIOn that when the ongInal announcement was made that G C C was cloSIng, there had been no decIsIOn regardIng CNCC beIng pnvatIzed. Mr PanovskI stated In hIS documentatIOn that on November 21 2000 he was notIfied that CNCC would be a pnvate Jail and that he along wIth other employees would have nghts under AppendIx 18 Later In 2001 the partIes agreed to the MERC 1 agreement whIch allowed employees to access ArtIcle 20 on the basIs of semonty In hIS submISSIOns, Mr PanovskI contends that he then spoke wIth LInda EllIott, Employer Human Resource RepresentatIve regardIng hIS Memorandum of Agreement and that she told hIm that he would get ArtIcle 20 nghts through the TransItIOn Cost Centre Almost one year later he was told that he had InSUfficIent semonty for ArtIcle 20 nghts and filed the above noted gnevances It was the Employer's posItIOn that all RecreatIOn Officers were advIsed that they had the opportumty to be assIgned to the TransItIOn Cost Centre posItIOns AccordIng to the Employer several meetIngs were held and all employees were advIsed that assIgnments would be based on classIficatIOn and If there were more Interested employees than avaIlable posItIOns, assIgnments would be based on semonty ThIS InformatIOn was also Included In correspondence to all G C C employees dated June 15 2001 Mr PanovskI receIved thIS correspondence and sIgned that he had done so Mr PanovskI said In hIS statement that "employees were already aware that Penetang (C.N C C ) would be pnvate" and therefore Barry Thomas knew that when he agreed to the Memorandum of Agreement that brought about hIS assIgnment to G C C 6 Even If I accepted everythIng set out In the gnevor's statement of facts, I have no eVIdence before me that Mr Thomas knew at the tIme he sIgned the June 2000 Memorandum of Settlement that the Jail In Penetang, CNCC would be pnvately operated and that the employees at G C C would be gIven AppendIx 18 nghts The gnevor has assumed that Mr Thomas knew thIS fact because other employees "knew" That assumptIOn IS not fact. Indeed, the assertIOn that other employees knew IS not a fact before me In order for a findIng of negotIatIng In bad faith, clear and cogent eVIdence IS reqUIred and assumptIOns are InSUfficIent. AccordIngly the gnevances are demed. On October 21 2002, the gnevor filed a gnevance that the Employer was promulgatIng "a posItIOn the result of whIch wIll result In me beIng wIthout a contInuIng employment opportumty" In hIS VIew thIS was contrary to vanous sectIOns of the collectIve agreement, Mimstry polIcy and legIslatIOn. WhIle I understand that the gnevor was wIthout a contInuIng Job opportumty at some pOInt, there was no oblIgatIOn on the Employer or the Umon to ensure that he would contInue to be employed. There have been many changes and much upheaval In thIS Mimstry over the last decade These changes have caused many good and long standIng employees to lose theIr posItIOns WIth the Ontano PublIc ServIce However the Employer can orgamze ItS workplace as It sees fit as long as It does not vIOlate the collectIve agreement, other agreements or statute I have no eVIdence of any such vIOlatIOn. The October 21 2002 gnevance IS dIsmIssed. As mentIOned earlIer In thIS decIsIOn, the gnevor was re-assIgned to Guelph C C In accordance wIth a settlement. He began that reassIgnment on July 15 2000 On March 8 2001 the gnevor provIded a note from hIS attendIng physIcIan statIng that he was not able to travel for more than thIrty mInutes In a vehIcle AccordIngly he sought accommodatIOn and that was provIded by allowIng the gnevor to work at Vamer Centre for Women. He eventually returned to G C C In 2002 On February 25 2003 the gnevor filed the folloWIng gnevance I gneve that I have been subJected to unfair treatment by my employer wIth respect to travel expenses Dunng my temporary assIgnment at Vamer CC and my assIgnment at GATU I was dIsallowed travel expenses whIle fellow staff on temporary assIgnments are granted travel tIme and mIleage expenses 7 By way of remedy Mr PanovskI sought travel tIme and mIleage expenses for the full penod. In my VIew thIS gnevance must be dIsmIssed. In hIS wntten submIssIOn regardIng thIS matter the gnevor said that he "accepted" a temporary transfer to Vamer C C However a reVIew of the facts reveals that to be a mIscharactenzatIOn of what occurred. The gnevor reqUIred a dIfferent work assIgnment because of hIS InabIlIty to dnve long dIstance AccordIngly he sought and was granted an accommodatIOn that temporanly assIgned hIm to work at Vamer C C That temporary assIgnment was for the penod November of 2000 untIl January 2002 To be clear he was not assIgned to work at Vamer C C by the Employer for ItS convemence or because of any operatIOnal reqUIrements It would be Inappropnate for me some four years after the ongInal accommodatIOn was granted to order the Employer to pay travel tIme and expenses for a work assIgnment that accommodated the gnevor by way of less travel tIme and mIleage Moreover as noted by the Employer thIS gnevance was filed In February 2003 some three years after the accommodatIOn began. The Employer asserted that the gnevance should be dIsmIssed on the basIs of tImelIness The final gnevance filed by the gnevor was dated March 12, 2003 He alleged vIOlatIOn of the Memorandum of UnderstandIng regardIng AppendIx 18 employees and Employment ExtensIOns dated January 22, 2003 He stated that he was surplussed In accordance wIth AppendIx 18 on February 24 2003 whIle co-workers wIth less semonty were gIven Employment ExtensIOns AccordIng to Mr PanovskI he made hIS wIshes known regardIng hIS contInued employment In a memo sent January 10 2001 It stated I request that my temporary assIgnment at Vamer C C be extended after Guelph C C IS closed so that I may be consIdered for a J ob trade, Job transfer or vacancy I wIll also accept temporary assIgnments to other InstItutIOns If needed. On June 5 2002, the gnevor receIved notIce that TY AC Maplehurst Complex, Vamer OCI and HWDC were all advIsed that he was Interested In a temporary assIgnment as a RecreatIOn Officer AccordIng to Mr PanovskI, five days after he receIved thIS memorandum a CorrectIOnal officer was temporanly assIgned to the posItIOn of RecreatIOn Officer at Vamer 8 On January 22, 2003 the partIes agreed to gIve RecreatIOn Officers Employment ExtensIOns based on semonty That agreement stated, In part 1 The Employer agrees to IdentIfy "Employment ExtensIOns" opportumtIes where there are operatIOnal reqUIrements 2 The Employer agrees to offer these "Employment ExtensIOns" opportumtIes to qualIfied AppendIx 18 employees on the basIs of semonty For clanty the most semor qualIfied employees shall be offered the opportumtIes first and so on In descendIng order of semonty 3 Acceptance of an "Employment ExtensIOn" posItIOn at the worksIte means that the worksIte becomes the worksIte of the employee and that compensatIOn for travel, accommodatIOn, and tIme credIts shall not apply to the employee on the "Employment ExtensIOn" and 4 The Employer agrees to provIde the employees two weeks' notIce of the conclusIOn of the "Employment ExtensIOn" at whIch tIme the employees wIll benefit from theIr entItlements under the OPSEU CollectIve Agreement, ArtIcle 18 6C 2 5 The Employer agrees to dISCUSS the "Employment ExtensIOns" regularly at MERC ImplementatIOn meetIngs The gnevor applIed for and was granted parental leave That leave ended on February 24 2003 Upon hIS return he was gIven notIce of beIng surplussed In accordance wIth AppendIx 18 He filed a gnevance on March 12, 2003 In thIS regard. He asserts that other employees, for Instance, another RecreatIOn Officer laIn Douglas, wIth less semonty than the gnevor was gIven an Employment ExtensIOn. It was the gnevor's posItIOn that he should have receIved that extenSIOn. It was the Employer's posItIOn that the gnevor was not offered an Employment ExtensIOn because none were left at the pOInt he returned from hIS parental leave It was the consIstent practIce of the Employer that employees on vanous leaves are not gIven notIce of a change In theIr employment status untIl theIr return to work. The Employment ExtensIOns were all filled whIle the gnevor was on leave and there were no further extensIOns avaIlable at the pOInt hIS leave concluded. It was the Umon's posItIOn that the gnevor had made hIS IntentIOns known regardIng thIS very thIng, that IS, Employment ExtensIOn opportumtIes Therefore, It was unreasonable In these CIrcumstances to bypass the gnevor sImply because he was on parental leave His absence on parental leave should not have foreclosed hIS opportumty to contInuIng hIS employment. Indeed, to deny the gnevor hIS request was adverse Impact dISCnmInatIOn. 9 The Employer dIsclosed that all AppendIx 18 Employment ExtensIOns would termInate and the final Employment ExtensIOn for a RecreatIOn Officer ended on September 24 2004 I have consIdered the facts and submIssIOns of the partIes It IS not my IntentIOn to set out my delIberatIOns In thIS regard. It IS sufficIent to order the Employer to pay to Mr PanovskI an amount equal to hIS salary and benefits from the penod February 25 2003 to September 24 2004 I remaIn seIzed In the event that there are any ImplementatIOn dIfficultIes In thIS regard. Dated In Toronto thIS 3rd day of February 2005 ,~ Vice-Chair