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HomeMy WebLinkAbout2003-2901.Cooper et al.04-03-24 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# 2003-2901 2003-3550 2003-3758 UNION# 2003-0411-0052,2003-0411-0057 2003-0252-0052 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Cooper 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 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 smaller It IS for these reasons that the process I have outlIned IS appropnate In these CIrcumstances 4 John Cooper and Mark Launn filed a gnevance that stated I gneve that the Employer has vIOlated my nghts by not abIdIng by the sIgned agreement on converSIOn. ThIS IS unfair treatment by not paYIng out sIck tIme, lIeu tIme earned wIll not be gIven. EntItled benefits are not avaIlable By way of remedy they request all sIck tIme to be paid out wIth Interest and a sIgmficant amount ofmomes paid to them because of undue hardshIp An IdentIcal group gnevance (Arcand) was also filed as well as a gnevance filed by Mr Borys It was agreed by the partIes that all of the gnevors were unclassIfied CorrectIOnal Officers who were rolled over In accordance wIth the Memorandum of Agreement regardIng roll-over At the tIme they became classIfied the Employer collapsed all of theIr attendance credIts as they were now entItled to the provIsIOns of STSP as set out under the collectIve agreement. ArtIcle 31.A8 1 of the collectIve agreement states Employees who work thIrty SIX and one-quarter (36 1J4 ) or forty (40) hours per week shall earn attendance credIts of one and one-quarter (11J4) days for each calendar month of full attendance or for each calendar month of leave of absence granted under ArtIcle 31A9 (Pregnancy and Parental Leave) Attendance credIts may be used for protectIOn purposes only In the event that an employee IS unable to attend to hIS or her officIal dutIes by reason of Illness or Injury However accumulated attendance credIts earned pnor to Apnl 1 1978 may be transferred to the ClassIfied ServIce when the appoIntment to the ClassIfied ServIce IS made from contInuous, unbroken, full-tIme UnclassIfied ServIce It IS clear from the above that unclassIfied employees have no nght to have any attendance credIts transferred or paid out when they move to classIfied servIce unless the credIts were earned pnor to 1978 Further there IS nothIng In the Memorandum of Agreement between these partIes regardIng roll-over that would bestow such a benefit upon the gnevors I am oblIged to say that even If I found that the gnevors were entItled to the payout of any credIts I fall to understand why any payment for "undue hardshIp" would be ordered In these CIrcumstances 5 AccordIngly the gnevances are demed.