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HomeMy WebLinkAbout2007-0797.Clarke.07-10-15 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 GSB# 2007-0797 UNION# 2007-0310-0026 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Clarke) - and - The Crown in Right of Ontario (Ministry of Children and Youth Services) Nimal Dissanayake Serge Linarello Grievance Officer Ontario Public Service Employees Union Nicholas Sapp Employee Relations Advisor Ministry of Children and Youth Services October 9,2007. Union Employer Vice-Chair 2 Decision The grievor, Ms. Amanda Clarke filed a grievance dated April 18, 2007 as follows: I grieve that the employer is in violation of article 2 (Management Rights); 3 (No discriminationlEmployment Equity); and 9 (Health and Safety) and any other article or employer policy that may apply. The desired settlement is: 1. Restore my previous Monday and Friday reporting days at Pathways Reporting Centre in Markham. 2. Require that probation Manager for York Region, Paul Hunter, receive a program of sensitivity training. 3. That no harassment or discrimination result from the filing of this grievance. This matter came before me for mediation-arbitration on the agreement of the parties. During the mediation phase of the process the union and the employer presented the relevant facts, the issues in dispute and their respective positions. The mediation, however, did not lead to a resolution of the grievance. In the circumstances, the parties requested that I issue a decision based on the facts and the respective positions of the parties as articulated during mediation. The grievor is employed with the employer as a Probation Officer. She had joined the employer in April of 1985, and since approximately 2004 transferred to Markham. The reporting centre for Markham probation officers was known as Pathways. (The Pathways Office). The gist of the grievance is that the grievor had her access to the Pathways Office space for purposes of meeting with clients reduced from two days a week to one day a week. The Pathways Office space is shared. In the period leading up to the instant grievance, the grievor and another full-time probation officer had access to the Pathways Office two days each per week. Then a third person, a part-time probation officer, was also assigned to 3 Markham, and was allowed to use the Pathways Office space. Since then the grievor's access to the Pathways Office space was reduced to one day a week. The grievance is an attempt to have her two days access restored. There is no question that the grievor genuinely feels that she was unfairly treated. She was of the opinion that in the first place there was no need to assign a part-time officer to Markham, given the low workload. Moreover, she pointed out that several other Probation Officers, with less seniority than herself, had access to their offices two days a week for purposes of meeting with clients. The employer advised that it understood why the gnevor would feel aggrieved. However, it was asserted that there was a severe shortage of office space. While the employer would like to make office space more accessible to the grievor, as well as other employees, given the limited space available and its overall business, it was constrained from doing so. The employer's position was that the available office space was allocated among employees based on operational considerations. The onus of establishing a violation of the collective agreement is on the union. There was no assertion that the grievor was discriminated on the basis of a prohibited ground in article 3, or that the reduction of access to the office space exposed the grievor to any health and safety risk in violation of article 9. Article 2, the Management rights provIsIOn in the collective agreement cited in the grievance, explicitly provides inter alia, that "the right to hire and layoff, appoint, assign and direct employees, determine organization, staffing levels, work methods, the location of the 4 workplace ..., shall be vested exclusively in the employer". These exclusive rights of the employer are stated to be "subject only to the provisions of this central collective agreement and any other collective agreement to which the parties are subject". Upon being questioned, the union was unable to point out any collective agreement right of the grievor which may have been denied or abridged as a result of the employer's action of reducing her access to the office space from two days to one. The gist of the union's position was that it was unfair that the grievor's access to office space is limited to one day, when employees with lesser seniority had greater access. The employer has the management right to determine the number of employees it needs to hire in any particular location, and to organize such work location as it deems fit. This Board has no authority to intervene on the basis that the Board is of the opinion that the employer's actions result in unfairness. It can only do so, if employer action is unlawful or in some way adversely affects employee collective agreement rights. For example, even if this Board agrees with the grievor that there was no need to assign an additional part-time probation officer to Markham given its low workload, this Board has no authority to intervene. Similarly, even if the Board is of the opinion that there is a fairer method of distributing office space, it has no jurisdiction to direct the employer to adopt such method as long as the employer has not violated the collective agreement or any law. The grievor's reliance on her greater seniority IS of no assistance either. Where a collective agreement provides that an employer is required to have regard to seniority for certain purposes, e.g. promotions and layoffs, the employer must give preference to senior employees as required by the particular provision. However, where no such provision is made for preference, 5 seniority rights have no application. Thus for example, in the absence of provision in the collective agreement, it has been held that an employer is free to retain the employees it feels are best without regard to seniority (Re Pro Insul Ltd., 2000, 88 L.AC. (4th) 397 (Tettensor); and that management is not obliged to consider seniority when selecting bargaining unit employees to perform managerial functions on a temporary basis (Re Regional Municipality of Waterloo, (2003) 116 L.AC. (4th) 381 (Stewart). The collective agreement that governs the rights between these parties does not require the employer to consider seniority in assigning office space or office locations. In summary, the employer's action of reducing the grievor's access to office space has not adversely affected any collective agreement right of the grievor. Therefore, despite the belief of the grievor that she had been treated unfairly, no violation of the collective agreement has been established. Therefore, the grievance is hereby dismissed. Dated this 15th day of October 2007 at Toronto, Ontario. ~~~';"~.s~.~ Vice-' . .' . J .'. . . .