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HomeMy WebLinkAbout2001-1630.Union Grievance.04-03-08 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# 2001-1630 UNION# 02U014 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Umon Gnevance) Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Nelson Roland Ryder Wnght Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Sunee1 Bahal Counsel Management Board Secretanat HEARING February 25 2004 2 DeCISIon In a Memorandum of Settlement dated December 17 2001 ("the Memorandum") the partIes agreed to wIthdraw two applIcatIOns before the Ontano Labour RelatIOns Board ("OLRB") and also agreed that, as a Vice-Chair of the Gnevance Settlement Board, I have the JunsdIctIOn to determIne entItlement to pay for certaIn employees at the Toronto West DetentIOn Centre ("Toronto West") for theIr ShIftS commencIng on November 6 2001 whIch they dId not work. The Employer agreed to pay the employees for these ShIftS and the Issue for determInatIOn was whether the employees should repay what they were paid for that day After many heanng days dunng whIch I heard a consIderable amount of eVIdence, the partIes made submIssIOns at the heanng on December 2, 2003 wIth respect to both the ments of the case and the remedIal Issues before me In a decIsIOn dated December 4 2003 I made the folloWIng dIrectIOns and retaIned JunsdIctIOn to resolve any dIspute between the partIes ansIng out of the decIsIOn (1) The partIes at the local level shall meet to determIne who IS properly on the "B" lIst for the purposes of thIS DeCISIOn and shall produce a lIst In thIS regard wIthIn ten workIng days of the date of thIS DeCISIOn. The cntena assocIated wIth those who are not properly on the lIst Include, but are not lImIted to staff who were on a pre-approved leave of absence on November 6 2001 and/or those who never receIved an ImtIaI deductIOn by the Mimstry or subsequent reImbursement, and/or those who are no longer employed wIthIn the Mimstry (2) Those persons properly on the "B" lIst shall have the eqUIvalent of 1/3 of theIr pay for theIr ShIft of November 6 2001 returned to the Mimstry wIthIn 60 days of the date of thIS DecIsIOn. The partIes at the local level were unable to agree on a "B" lIst and the Employer requested that the matter be lIsted for heanng for the purpose of dealIng wIth the "B" lIst Issue The partIes at the local level were workIng from a revIsed Schedule "B" whIch had been a part of the Employer's applIcatIOn to the OLRB ThIS document contaIned the names of employees who 3 were scheduled to work day ShIftS on November 6 2001 Apart from those employees who were absent due to sIckness, the revIsed Schedule "B" contaIned 72 names The Umon called Mr M. Vieselmeyer the PresIdent of the Local Umon, to testIfy In support of ItS posItIOn. The Umon referred to a number of Employer documents, such as a master schedule and a duty roster and took the posItIOn that the InCOnsIstencIes In the documentatIOn created consIderable uncertaInty about whether many of the employees whose names appeared on the revIsed Schedule "B" were scheduled to work day ShIftS on November 6 2001 In addItIOn to takIng the posItIOn In the alternatIve that some of the 72 names should not be on the "B" lIst, the Umon argued that there should be no names on the "B" lIst In the CIrcumstances ThIS posItIOn was based on ItS VIew that the names of certaIn employees who appear to have been scheduled for the day ShIft on November 6 2001 were not on the revIsed Schedule "B" Although not seekIng the addItIOn of theIr names to the "B" lIst, the Umon argued that the absence of these names wIthout an explanatIOn IS dISCnmInatory and should result In no repayment by any employee whose name mIght otherwIse be appropnately on the "B" lIst. The Umon' s posItIOn that there should be no names on the "B" lIst cannot be sustaIned. It IS not clear from the matenal before me that the names of employees who the Umon claims are mISSIng from the revIsed Schedule "B" were scheduled to work day ShIftS on November 6 2001 In any event, In makIng theIr submIssIOns on December 2, 2003 the partIes contemplated that the dIspute about the revIsed Schedule "B" related to what partIcular names should be removed from the "B" lIst, not that there was a possIbIlIty that there would not be a "B" lIst. 4 At the heanng on February 25 2004 the partIes separately advIsed me and the party OpposIte of whIch names should be removed from the revIsed Schedule "B" At the end of thIS process, there contInued to be a dIspute about the status of fourteen employees After consIdenng the submIssIOns of counsel relatIng to these fourteen employees, It IS my conclusIOn that Violet Blackman, Jarek MarcInkowskI, OzzIe Bacchus, Paul Fagon and Alex Zurby should not be on the "B" lIst. The "B" lIst attached to thIS DecIsIOn Includes the names of those employees who on the balance of probabIlItIes were scheduled to work day ShIftS on November 6 2001 Dated at Toronto thIS 8th day of March, 2004 ILhen - Vice 5 "B" LIST Belfiore, Joe Bradley Janet BenedIct, Barry CallIgan, Bnan BUrrItt, John Cannon, Ken Campbell, ColIn CottIer Deborah Clarke, Andrea CottIer Darren Douglas, JamIe Desousa, LucIlle Edwards, Rob DIver Angela Hollmann, Andy Gerofsky Beverley Holloway Tracy Grace, Larry Houston, Doug Launa, Vince Hutcheson, Rod MaCIver Ian Koester Andrew Maxwell, Paul LIantzakIs, Nick May Michael MacKenZIe-HaInes, Craig McNeIl, LoreleI McMullen, Reg Parker Charles SIngh, BalbInder Penner Jim Sparks, Constance Ralley GeorgIna Willey Scott Skoufans, Efi Allen-Leblanc, Kathleen SmIth, Chns Bartlett, Scott Sponagle, Joseph Boychuk, WillIam Stephens, Jeff Brace Michael Swanson, Ian