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Home My WebLink About2003-2844.Shipticki.04-08-30 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# 2003-2844 UNION# 2003-0582-0180 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) 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 November 5 2003 2 DeCISIon In September of 1996 the MmIstry of CorrectIOnal ServIces notIfied the Umon and employees at a number of provmcIaI correctIOnal mstItutIOns 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 pohcy and mdIvIdual gnevances that alleged vanous breaches of the collectIve agreement mcludmg artIcle 6 and artIcle 31 15 as well as gnevances relatmg to the filhng of correctIOnal officer posItIOns In response to these gnevances the partIes entered mto dIscussIOns and ultImately agreed upon two Memoranda of Settlement concernmg the apphcatIOn of the collectIve agreement dunng the "first phase of the MmIstry's transItIOn" One memorandum, dated May 3, 2000 (heremafter referred to as "MERC I" (MmIstry Employment RelatIOns CommIttee)) outhned condItIons for the correctIOnal officers wIllIe the second, dated July 19,2001 (heremafter referred to as "MERC 2") provIded for the non-correctIOnal officer staff Both agreements were subject to ratIficatIOn by respectIve prmcIples and settled all of the gnevances IdentIfied m the related MERC appendIces, filed up to that pomt m tune The partIes contmued to negotIate and agree upon further condItIons regardmg the transItIOn matters MERC 3 was sIgned by the partIes on February 25, 2002 WhIle It was agreed m each case that the settlements were "wIthout prejUdICe or precedent to posItIOns eIther the umon or the employer may take on the same Issues m future dIscussIOns", the partIes recogmzed that dIsputes mIght anse regardmg the ImplementatIOn of the memoranda. Accordmgly, they agreed, at Part G, paragraph 8 3 The partIes agree that they wIll request that FehcIty Bnggs, VIce Chair of the Gnevance Settlement Board wIll be seIzed wIth resolvmg any dIsputes that anse from the ImplementatIOn of thIS agreement It IS thIS agreement that provIdes me wIth the jUnSdIctIOn to resolve the outstandmg 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 filhng those posItIOns as they become aVailable throughout varIOUS phases of the restructunng GIven the complexIty and SIze of the task of restnlctunng and decommIssIOmng of mstItutIOns, It IS not surpnsmg that a number of gnevances and dIsputes arose ThIS IS another of the dIsputes that have ansen under the MERC Memorandum of Settlement When I was mItIally mVIted to hear theses transItIOn dIsputes, the partIes agreed that process to be followed for the detennmatIOn of these matters would be vIrtually IdentIcal to that found m 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 detennme the gnevance by arbItratIOn When determmmg the gnevance by arbItratIOn, the medIator/arbItrator may hmIt the nature and extent of the eVIdence and may Impose such condItIons as he or she consIders appropnate The medIator/arbItrator shall gIve a succmct decIsIOn wItllln five (5) days after completmg proceedmgs, unless the partIes agree otherwIse The transItIOn commIttee has dealt wIth dozens of gnevances and complamts 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, m accordance 4 wIth my jUnSdIctIOn to so determme, that gnevances are to be presented by way of each party presentmg a statement of the facts wIth accompanymg submIssIOns NotwIthstandmg that some gnevors mIght wIsh to attend and provIde oral eVIdence, to date, thIS process has been efficIent and has allowed the partIes to rem am relatIvely current wIth dIsputes that anse from the contmumg transItIOn process Not surpnsmgly, m a few mstances there has been some confusIOn about the certam facts or sImply msufficIent detail has been provIded. On those occaSIOns I have dIrected the partIes to speak agam wIth theIr prmcIples to ascertam the facts or the ratIOnale behmd the partIcular outstandmg matter In each case thIS has been done to my satIsfactIOn It IS essentIal m thIS process to aVOId accumulatmg a backlog of dIsputes The task of resolvmg these Issues m a tImely faslllon was, from the outset, a fonnIdable one WIth ongomg changes m MmIstenal boundanes and other orgamzatIonal alteratIOns, the task has lately become larger, not smaller It IS for these reasons that the process I have outlmed IS appropnate m these CIrcumstances Ms Theresa ShIptIckI was a CorrectIOnal Officer wIth the Toronto East DetentIOn Centre Due to downsIzmg of classIfied correctIOnal officer posItIOns at the TEDC the gnevor was surplussed. Her last day of work was August 22, 2000 As was her nght, she opted to exerCIse her nghts under ArtIcle 20 02, that IS, notIce and pay m heu She returned to work more than SIX months later on February 26, 2001 as an unclassIfied employee at the Toronto East DetentIOn Centre Ms ShIptIckI has smce filed a gnevance that stated 5 I gneve management has vIOlated the May 22, 2003 MERC Agreement/Settlement m addItIon to, but not hmIted to ArtIcle 2, 18 3, 184, and 20.2 5 of the CollectIve Agreement, m that my contmuous serVIce date was not accurately reflected resultmg m a mIscalculatIOn of hours causmg me not to be consIdered for one of the classIfied posItIOns By way of remedy she requested (1) To be made whole, (2) recovery of all lost semonty/recalculatIOn of penod of contmuous servIce, (3) return of all lost wages and penSIOn, If apphcable, together wIth mterest, (4) return of all lost vacatIOn and heu tIme, If apphcable, (5) and any other remedy a mediator/arbItrator sees fit It was the gnevor's contentIOn that, m accordance wIth ArtIcle 20.2 5 of the CollectIve Agreement, when she was hIred as an unclassIfied CorrectIOnal Officer, her contmuous servIce date, for all purposes, should have been deemed to mclude both serVIce up to the last day of actIve work and the accumulatIOn of servIce after the date of her re-appomtment ArtIcle 20.2 5 of the CollectIve Agreement states Where an employee who accepts pay m heu of notIce IS re-appomted to a posItIOn m the Ontano Pubhc ServIce after the ongmally projected lay-off date, and pnor to the eXpIratIOn of a further twenty-four (24) months, the employee wIll repay to the MmIstry all momes, excludmg tUItIOn fees, receIved under ArtIcle 203 (SeparatIOn Allowance) or paragraph 4 of AppendIx 9 (Employment StabIhty) The employee's contmuous serVIce date for all purposes except ArtIcles 53 or 78 (TermmatIOn Payments), shall be deemed to mclude both serVIce up to the last day of actIve work and the accumulatIOn of servIce after the date of re-appomtment The new serVIce date for purposes of tennmatIOn of pay shall be the date on whIch the employee recommences work. Ms ShIptIckI also rehed on ArtIcle 18 3 that states Where an employee has been released m accordance wIth ArtIcle 20 (Employment StabIhty) and rehIred wIthm 2 years, the penod of absence shall not be computed m detennmmg the length of contmuous servIce 6 However, penods of contmuous serVIce before and after such absence shall be consIdered contmuous and are mcluded m detennmmg the length of contmuous servIce I have consIdered the submIssIOns made on behalf of the gnevor and I find that I must dIsmIss the gnevance In the MERC 1 Memorandum of Agreement, sIgned June 16,2003, paragraph 6 states F or the purposes of unclassIfied senIonty calculatIOn, senIonty wIll be calculated m accordance wIth AppendIx 24 back to the first break m employment, whIch IS greater than thIrteen (13) weeks In my VIew, the partIes turned theIr mmds to the calculatIOn of unclassIfied senIonty m CIrcumstances IdentIcal to the mstant case It IS eVIdent from the MERC Agreement that, for purposes of rollover, unclassIfied senIonty IS to be calculated m accordance wIth AppendIx 24, not ArtIcles 18 or 20 of the CollectIve Agreement ArtIcle 18 and 20 contemplate nghts that apply to classIfied employees from the date of theIr appomtment to the classIfied servIce It does not provIde nghts for unclassIfied employees m theIr efforts to become classIfied Therefore, the gnevance IS denIed. Dated m Toronto tlllS 30th day of August, 2004