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HomeMy WebLinkAbout2006-1615.Bono.07-12-05 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 Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 IN THE MATTER OF AN ARBITRATION Under Nj ~ Ontario GSB# 2000-1615 UNION# 2001-0205-0007 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 (Bono) - and - The Crown in Right of Ontario (Ministry of Labour) Owen V. Gray Mark Barclay Grievance Officer Ontario Public Service Employees Union Lisa Compagnone Counsel Ministry of Government Services December 3,2007. Union Employer Vice-Chair 2 Decision [1] In mid 2000 Jennifer Bono was employed as a Program Assistant in the Ministry's Office of the Worker Advisor in Hamilton. She requested consideration for transfer to a suitable job elsewhere in the Ministry of Labour. Later that year the employer posted two Program Assistant positions of the sort to which the grievor believed the employer could and should have transferred her pursuant to article 6.6.1 of the collective agreement. Article 6.6.1 then provided, as it still does, that: 6.6.1 With the agreement of the Union, the employee and the Employer, an employee may be assigned to a vacancy where: (a) the vacant position is identical to the position occupied by the employee, and (b) the vacant position is in the same ministry as the position occupied by the employee, and the provisions of Articles 6.1.1, 6.2, 6.3, 6.4 and 6.5 shall not apply. In January 2001 Ms. Bono grieved that "the employer has violated the collective agreement by failing to grant my request for a lateral transfer dated June 13, 2000 to an identical position despite granting lateral transfers to other employees in similar or identical circumstances." In due course that grievance was referred to arbitration. [2] The hearing in this matter began on November 30, 2001. From the outset the employer took the position that this board was without jurisdiction to review a decision not to agree to or effect a transfer under Article 6.6, unless perhaps it had acted in bad faith in considering the request, which it denied. In that hearing the union's representative alleged that the employer had acted in bad faith by misconstruing its own policy on transfers and concluding that the positions in question did not meet the requirement in clause (a) of article 6.6.1 that they be "identical" to the grievor's position. [3] On that first hearing day the grievor completed her testimony-in -chief in support of her grievance. Her cross-examination began but was not concluded that day. Thereafter there were a series of reschedulings and adjournments on agreement of the parties. In the result, the next hearing day was September 6, 2007, nearly six years after the first. 3 [4] At the hearing of September 6, 2007 the employer raised issues about the intervening delay and the failure of the grievor to attend the hearing that day. Those issues were resolved by the parties' agreeing on terms of an adjournment to Monday, December 3, 2007. Those terms included the following: . There will be an order in my usual terms, requiring that by October 5, 2007, the union deliver written particulars of the facts on which it relies in this matter and produce copies of any documents on which it relies, including particulars and documents concerning any transfer under Article 6.6.1 which the union says the employer made between jobs that were no more "identicaf' than the grievor's job was to the jobs posted; . If upon receipt of the union's particulars employer counsel concludes that the facts alleged do not amount to a breach of the collective agreement, he or she will be at liberty to promptly bring a motion to have the grievance dismissed for failure to allege a prima facie case; I confirmed those and the other terms of adjournment in my order of September 14, 2007. That order included the following with respect to the union's obligation to deliver particulars: [5] I direct that the union provide the employer with full written particulars of the allegations of fact on which it relies in this matter, together with copies of any documents in the possession, custody or power of the union or of the grievor on which the union may wish to rely in these proceedings. The particulars provided shall include particulars of any acts or omissions on which the union relies in these proceedings to demonstrate that the employer acted in "bad faith" and, without limiting the foregoing, shall include particulars of any transfer under Article 6.6.1 which the union says the employer made between jobs that were no more "identicaf' than the grievor's job was to the jobs posted, including the name of the employee transferred, the approximate date of the transfer, the job duties of the job from which the employee was transferred and the job duties of the job to which the employee was transferred. [6] With respect to each act or omission alleged, the union's particulars shall indicate what was done or not done, when, where, by what means and by whom. If conduct is attributed to the employer or the union, the particulars shall indicate who is alleged to have so acted on that party's behalf. Conclusory statements based on unparticularized allegations of fact are not sufficient. The allegations of fact set out (exclusive of any conclusory statement or argument) should be sufficiently comprehensive that it would be unnecessary for the union to call any evidence if the employer were to admit that all of those allegations of fact were true. It is not necessary for the union to include in its particulars a description of the evidence by which it will seek to prove any of the allegations of fact set out in its particulars. It is not necessary for a union to identify in its particulars any witness to an event in question, unless the presence of that individual is a material fact on which the union relies. [7] The union's particulars shall set out the remedies sought with respect to the gnevance. 4 [9] If the union fails to produce a document or provide particulars of an allegation in accordance with this order it may not introduce that document into evidence or tender evidence about that allegation in these proceedings without leave. [5] Thereafter, by letter dated November 28, 2007, the union delivered the following particulars: 1. The Grievor applied for a lateral transfer within the Ministry of Labour on July 5, 2000. 2. The Grievor's home position at all relevant times has been Program Assistant, Office of the Worker Advisor (OAS). 3. The position into which she was seeking a lateral transfer was Program Assistant to the Regional Program Advisors, Operations Position (OAS). 4. Both positions were located in the Hamilton office at 1 Jarvis St., Hamilton. 5. The reason for the lateral transfer request was given as: 'Change - Able - Chance for future advancement' COLLECTIVE AGREEMENT 6. As an OPS Classified employee the Grievor was eligible to apply for a lateral transfer. 7. The Collective Agreement provides (at Article 6.6) that for a lateral transfer to occur the positions are to be identical. S. The Union acknowledges that the job specifications for the two Program Assistant positions do not meet the strictest test of being identical. DENIAL OF TRANSFER AND GRIEVANCE 9. The Grievor was denied a lateral transfer match on the basis that the two positions were not identical. The Union understands that the sole basis on which the Ministry denied the lateral transfer was that the positions were not deemed to be identical. 10. The position of Program Assistant to RP A - Operations Division was subsequently posted. 11. The Grievor applied to the posting and was not successful in the job competition. 12. Subsequent to being informed that she was successful [sic] in the job competition but prior to the Employer having filled the position, the Grievor filed the subject grievance on January 4, 2001. The grievance asserts that the Grievor should have been placed into the position as a result of her earlier lateral transfer request. The remedy sought through the Grievance was to immediately suspend the job competition and place her directly into the position. ALLEGATION OF POISONED WORK ENVIRONMENT 13. The Grievor has stated throughout the grievance process, including at the Stage Two meeting held in 2001, that she applied for a lateral transfer because a poisoned work environment existed at her workplace at the Office of the Worker Advisor. Further, the Grievance stated that she was seeking to remedy her complaint of the poisoned workplace by affecting a lateral transfer to the Operations Division. 5 14. The Union is not aware of the Employer taking any steps to investigate or address the Grievor's concerns about working in a poisoned work environment subsequent to its being informed of the reason for her transfer request. APPLICATION OF A LESSER STANDARD FOR TRANSFERS 15. The Union acknowledges that it has no evidence that the Ministry of Labour uses any other standard for lateral transfers than the strict test requiring that the positions be identical. 16. Notwithstanding that this Ministry has a strict test, other Ministries can and do take additional compassionate considerations into account. And occasionally apply a less strict standard. The Union will provide particularized examples of this practice no later than mid-day, Friday November 30,2007. 17. The Union does not assert that the Employer acted in bad faith in applying the strict test in the case of the Grievor. REMEDY REQUESTED 18. The Grievor continues to be employed at the Office of the Worker Advisor and continues to seek relocation out of that Office. [6] On receipt of these particulars the employer gave notice that when the hearing resumed it would seek an order dismissing the grievance for failure to assert a prima facie case, without prejudice to any other challenge it might make to the particulars if that motion failed. [7] The further particulars promised in paragraph 16 of the particulars were not delivered, either by November 30, 2007 or at all. [8] The union agreed that the hearing scheduled for December 3, 2007 could be held by teleconference. Before the teleconference began it advised the employer that it would not oppose the employer's motion. Its representative explained to me that this was on the basis that I would determine the motion on its merits. But for that observation, and in the absence of any obvious defect in my jurisdiction to grant what the motion sought, the union's having stated that it did not oppose the motion would ordinarily have been sufficient reason to grant it. [9] On a motion of this kind the question is whether the facts alleged by the union, if proven true, would establish that the employer conduct complained of in the grievance breached the collective agreement. [10] Paragraphs 13 and 14 of the union's particulars allege, for the first time in these proceedings, that "a poisoned work environment existed at her workplace" when the grievor applied for a lateral transfer. Despite what is said in the second sentence of 6 paragraph 13, the written grievance before me says nothing about a poisoned work environment. Whatever may have been said during the grievance procedure, to which privilege would ordinarily preclude any reference, the union's opening statement in these proceedings on November 30, 2001 made no mention of a "poisoned work environment" or workplace conditions that could be so described, nor did the grievor's testimony-in-chief that day. The union's conclusory assertion in this regard is unsupported by particulars of any acts or omissions that could be said to have created a "poisoned work environment" as that term is normally understood. There is, moreover, no allegation that any such acts or omissions were brought to the employer's attention before it made the decisions about which this grievance complains. [11] The dispute with which these proceedings have been and are concerned is about the propriety of the employer's decision not to transfer the grievor into one of two particular positions pursuant to Article 6.6, not the state of the grievor's work environment at the time the decision was made. Neither the parties' agreement of September 6, 2007 nor my subsequent order gave the union the option of enlarging the dispute or refocusing it on some other, different matter. [12] A dispute about whether the grievor's work environment was poisoned, whether the employer was aware or made aware that it was poisoned and whether it failed to correct any problems that may have existed in the workplace could have been the subject of another grievance, but it was not and is not the subject of this one. Whether true or not, the assertions in that regard in paragraphs 13 and 14 of the particulars are irrelevant to the issues in dispute in these proceedings. [13] Again, the employer conduct complained of in these proceedings was its decision not to transfer the grievor to certain positions pursuant to Article 6.6, or perhaps more accurately, its decision not to propose to the union or agree with the union that it transfer the grievor to either of those positions. [14] The union has expressly abandoned the allegation that the employer acted in bad faith in so deciding. It concedes that the employer's decision was based solely on its conclusion that the positions in question were not "identical" to the grievor's position, as clause (a) of article 6.6.1 requires. While the union says the employer's applied a "strict test" or "the strictest test" in determining whether the positions were identical, it does 7 allege that some other test was intended or required by the language on which the employer and the union agreed in clause (a) of article 6.6.1. The union concedes that on this test the positions in issue were not "identical" to the grievor's. [15] In short, there is no challenge here to either the correctness or the bona fides of the employer's response to the grievor's request for transfer under article 6.6. It is unnecessary to determine what obligation, if any, article 6.6 imposes on the employer or the union when an employee seeks transfer to a vacant position that is objectively "identical" to, and within the same Ministry as, her or his own position. Assuming, without deciding, that Article 6.6 creates some obligation in that regard, the facts alleged by the union, if proven true, would not establish that the employer breached that obligation in this case. [16] For those reasons this grievance is dismissed. Dated at Toronto this 5th day of December, 2007.