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HomeMy WebLinkAbout2002-1119.Shipticki.05-06-08 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# 2002-1119 UNION# 2002-0582-0033 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (ShIptICkI) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty 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 Commumty Safety and CorrectIOnal ServIces HEARING May 3 2005 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 concernIng 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 1" (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 3 of gnevances and dIsputes arose ThIS IS another of the dIsputes that have ansen under the MERC Memorandum of Settlement. 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 4 smaller It IS for these reasons that the process I have outlIned IS appropnate In these CIrcumstances The gnevor Ms ShIptICkI filed a gnevance on June 20 2002, allegIng vIOlatIOns of vanous provIsIOns of the collectIve agreement. She was surplussed and, because she agreed to take a package, her last day of work at the Toronto East DetentIOn Centre was August 22,2000 On December 11 2000 she wrote to the Employer and sought to be re-hIred. In her letter of applIcatIOn she stated Further to our telephone conversatIOn of December 6 2000 I am wntIng thIS letter In response to your request. Dunng our talk I made you aware of a conversatIOn I'd had WIth Mr Carl DeGrandIS, former Supenntendent of the Toronto East DetentIOn Centre I had Informed Mr DeGrandIS of my deSIre to reJoIn the staff as an UnclaSSIfied CorrectIOnal Officer effectIve February 22, 2001 (that beIng the end of the 6 months for whIch I receIved pay In lIeu of notIce Mr DeGrandIS confirmed that thIS optIOn was avaIlable to me subJect to my complIance WIth Mimstry and Government regulatIOns regardIng my re-employment. Enclosed please find a copy of a September 6 2000 memorandum receIved from Mr DeGrandIS whIch I trust IS self-explanatory As you have SInce replaced Mr DeGrandIS as Supenntendent, I am now contactIng you to ascertaIn If thIS optIOn remaInS open tome If thIS optIOn to reJoIn the staff as an UnclaSSIfied CorrectIOnal Officer remaInS avaIlable to me, I WIsh to confirm that I am ready wIllIng and able to resume my dutIes effectIve February 22, 2001 Should you have any questIOns or reqUIre addItIOnal InformatIOn, please do not heSItate to contact the underSIgned at the above noted address and/or phone number I apprecIate your attentIOn to thIS matter and aWait your response On January 31 2001 the gnevor was offered, In wntIng, the opportumty to reJOIn the Mimstry as an unclaSSIfied CorrectIOnal Officer In that letter Ms ShIptICkI was offered an ImtIal contract and the rate of pay was set out. AddItIOnally she was Instructed that If she chose to accept the contract she was to report to work on February 26 2001 at the Toronto East DetentIOn Centre In response to that offer the gnevor wrote on February 6 2001 In part In response to your letter of January 31 2001 receIved by me on February 1 2001 I WIsh to respond as follows On February 5 2001 I spoke WIth OM16 J Duncan and confirmed that I wIll be reportIng to hIm at 0700 hours on February 26 2001 to commence InstItutIOnal re-onentatIOn. 5 I apprecIate the tIme and attentIOn you gave thIS Important personal matter and thank you for the opportumty to reJOIn the staff as an unclassIfied CorrectIOnal Officer The Umon submItted that It was the gnevor's posItIOn that her actual date of rehIre was February 22, 2005 for two reasons The first was because of the dIscussIOn wIth Carl DegrandIs referred to In the above letter The second was because In the January 31 2001 offer of employment letter there was an acknowledgement of her request. That acknowledgement IS tantamount to an agreement that her hmng date would be February 22, 2001 accordIng to Ms ShIptICkI By way of remedy the gnevor requested that she should be returned to the top of the salary gnd for CorrectIOnal officers It was the Employer's posItIOn that Ms ShIptICkI was rehIred In accordance wIth ItS rehIre polIcy whIch IS as follows . Re-employment wIthIn SIX months of separatIOn - shall be reappoInted to same class and salary at tIme of separatIOn, . Re-employment wIthIn SIX to twenty four months of separatIOn from CorrectIOnal ServIces - shall be reappOInted to mImmum of salary rate of applIcable classIficatIOn. UpdatIng of traInIng may be necessary and shall be revIewed by the manager and staff traInIng representatIve . Re-employment after twenty-four months of separatIOn from CorrectIOnal ServIces - shall be treated as a new hIre and all aspects of COSTART program shall apply Ms ShIptICkI was rehIred as an unclassIfied CO on February 26 2001 The Employer has the Inherent management nght to hIre and encompassed wIthIn that entItlement IS the Employer's abIlIty to determIne the date of hIre for any partIcular employee To be clear there was no oblIgatIOn for the Employer to rehIre the gnevor at any tIme gIven that she had elected to take the surplus package offered. In any event, IrrespectIve of the date that she wanted to begIn her employment, her date of hIre was beyond the SIX month penod and she has been treated In a fashIOn consIstent WIth the Employer's polIcy AccordIngly the gnevance IS demed. Dated In }oronto thIS 8t -~ . ;; e ICIty D Bnggs Vice-Chair