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HomeMy WebLinkAbout2003-0175.Tessier.04-03-23 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# 2003-0175 UNION# 2003-0521-0027 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (TessIer) Grievor - 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 March 1 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 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 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 4 Mr Dan TessIer IS a CorrectIOnal Officer workIng at Toronto Youth Assessment Centre He gneved that the Employer has vIOlated the collectIve agreement because he has not yet receIved a requested lateral transfer on compassIOnate grounds to Sudbury I receIved a statement of facts drafted by the gnevor whIch descnbed hIS personal CIrcumstances It IS not necessary to detaIl those facts In thIS decIsIOn. AccordIng to Employer the gnevor dId put hIS name on the lIst for lateral transfers Further It was conceded that there have been vacanCIes In the Sudbury regIOn SInce the gnevor asked for a transfer However the vacanCIes that arose were offered to those employees wIth nghts under AppendIx 13 of the collectIve agreement. Other vacanCIes were offered to employees who were rolled over In accordance wIth the Memorandum of Agreement sIgned between the partIes dated June 16 2003 In an August 26 2002 memorandum to all OPSEU staff wIthIn the Mimstry the TransItIOn Umt explaIned the procedure for requestIng and reCeIVIng lateral transfers The gnevor submItted hIS request for transfer on the same day As set out In the memorandum, all such requests remaIn on an employee's file for a penod not longer than one year If not renewed. That Memorandum stated, In part The Employee TransItIOn Umt wIll acknowledge receIpt of the request and log the request Into the lateral transfer database The request wIll be retaIned on file for a one year penod from the date of receIpt of the request. The employee must renew lateral transfer requests annually The gnevor dId not renew hIS request. AccordIngly as of January of 2004 there was not current request for a lateral transfer from Mr TeSSIer There IS no automatIc nght under the collectIve agreement for a lateral transfer WhIle I accept that the reasons for the gnevor's request are bona fide and Important to the gnevor there IS no such thIng as lateral transfers based on compassIOnate grounds under the collectIve agreement. A vacancy must first be IdentIfied and there must be agreement between the umon, the facIlIty and the IndIVIdual that a transfer wIll occur In the Instant matter the gnevor dId not receIve a transfer because there was no vacancy that was IdentIfied for lateral transfer by the Employer 5 dunng the tIme that he had a request for transfer on file AccordIng to the records of the partIes, he does not have a current request on file For those reasons, the gnevance IS dIsmIssed. Da~ed' Toronto. hIS 23rd day of March, 2004 ,