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Home My WebLink About2003-2517.Yole et al.04-04-02 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# 2003-2517 2003-2708 2003-2830 2003-3540 2003-3542,2003-3544 2003-3549 UNION# 2003-0234-0424 2003-0234-0505 2003-0234-0517 2003-0234-0600 2003-0234-0602, 2003-0234-0604 2003-0234-0609 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Yole et al) 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 Mr WillIam Yole, Ms LeIghann MacDonald, Ms Judy Acker Mr James Richards, Mr Byran CassIdy and Mr Grant Whelan are CorrectIOnal Officers at Maplehurst CorrectIOnal Complex. 4 They filed IdentIcal gnevances that stated that they were "not treated In a fair and eqUItable manner wIth regard to contInUOUS servIce date calculatIOns" The partIes negotIated an agreement that ensured employees on pregnancy and parental leave would not be subJect to adverse Impact dISCnmInatIOn WIth respect to theIr contInuous servIce dates In a Memorandum of UnderstandIng dated June 3 2001 the partIes agreed to the folloWIng 1 The partIes agreed that the penod of pregnancy/parental leave taken by an employee dunng hIS or her unclassIfied servIce ImmedIately pnor to appoIntment to the classIfied servIce back to the first break In employment that IS greater than 13 weeks, shall be Included In the contInUOUS servIce date ("CSD") calculatIOn. 2 In determInIng the CSD credIt for the penod of pregnancy/parental leave whIle employed as an unclassIfied employee, the PartIes agree to apply the folloWIng formula. (a) The total number of regular non-overtIme hours worked In the work weeks ImmedIately precedIng the pregnancy/parental leave, that are equal In length to the number of weeks of the approved leave as described In Paragraph (1) above wIll be determIned. (b) The total number of hours as determIned In (a) above wIll be dIvIded by the normal work week hours, I e thIrtY-SIX and one quarter or forty hours as appropnate, to determIne the number of full-tIme weeks that wIll be credIted to the employee's CSD No credIt wIll be gIven to a partIal week where there remaInS 0 5 weeks or less In the calculatIOn. One week of credIt wIll be gIven where the calculatIOn YIelds more than 0 5 of a week. 3 The PartIes agree that any unpaid, authonzed leave that IS taken In conJunctIOn wIth an unclassIfied employee's pregnancy/parental leave wIll not constItute a break In employment. There IS no dIspute between the partIes that the agreement IS not dISCnmInatory Further the partIes agree that the above provIsIOn makes labour relatIOns sense The gnevors assert that they were scheduled to work, as an example, thIrty hours per week as unclassIfied employees Other employees on pregnancy or parental leave were credIted wIth forty hours for some weeks of theIr leaves That dIssImIlar treatment was dISCnmInatory treatment accordIng to the gnevors In my VIew the agreement set out above was not dISCnmInatory Indeed, It ensured that all employees across thIS Mimstry who were absent due to pregnancy and parental leave were not dIsadvantaged by theIr absence and were treated In a sImIlar manner The fact that the gnevors 5 receIved credIt for actual hours worked and those hours mIght have been less hours that an employee on pregnancy leave was credIted In that partIcular week, IS neIther unfair nor IneqUItable treatment that would bnng a findIng of dISCnmInatIOn. AccordIngly the gnevances are demed. Dated In Toronto thIS 2nd day of Apnl, 2004