HomeMy WebLinkAbout2007-1619.McEvoy.08-05-28 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2007-1619
UNION# 2006-0538-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(McEvoy)
Union
- and -
The Crown in Right of Ontario
(Ministry of Transportation)
Employer
BEFOREVice-Chair
Deborah J.D. Leighton
FOR THE UNION Serge Linarello
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Len Hatzis
Counsel
Ministry of Government and Consumer
Services
HEARING
March 7, 2008.
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Decision
On August 28, 2006 Mr. McEvoy grieved ?the employer has discriminated against me by
improperly denying me my entitlement to return to work with accommodation due to my medical
condition/disability. The employer has improperly surplussed me and caused me considerable
stress and financial hardship because of their unreasonable and discriminatory actions.?
At the outset of the hearing into this matter, the employer sought to have the grievance dismissed
on the ground that there was no breach of the collective agreement between the parties.
Although the grievor was given notice that the hearing was to proceed on March 7, 2008, and
advised the union that he would attend, he did not appear at the hearing, nor provide any reason
for why he did not appear. Thus the parties agreed that the hearing should proceed in his
absence.
The employer and the union agreed to the following facts. On October 13, 2004, Mr. McEvoy
suffered a workplace injury, and on January 20, 2005 began to receive WSIB benefits. At the
time of his injury he was a Zone Striper Operator, classified as a Maintenance Mechanic II in the
Ministry of Transportation. In early 2005, the work of Zone Stripper Operators was being
privatized. On January 11, 2005 the grievor was advised of his options under the collective
agreement and asked to chose whether or not he wished to be part of the new privatized
operation, or whether he would prefer to be declared surplus, pursuant to the provisions of the
collective agreement, Article 5.2 of Appendix 18. The transfer of the MTO work to the private
operator was to occur August 8, 2005. The grievor decided to have his position removed from
the RFP. He signed the Employee Election Form on January 14, 2005 selecting the surplus
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option. Thus according to Article 20.1.3.1 of the collective agreement, his position was declared
surplus on August 15, 2005. Mr. McEvoy was advised of this on August 8, 2005, and that his
surplus would be held in abeyance while he was in receipt of WSIB benefits. Once he was able,
or fit, to return to work, the surplus would take effect.
On May 2, 2006 the grievor was declared fit to return to some work and the surplus notice was
triggered. On May 2, 2006 the grievor was advised of this by a letter from the Regional
Director.
As result of your decision in January 2005 to have your position removed from
the RFP and in accordance with Appendix 18, Articles 3.2.2.2 and 5.2 of the
Collective Agreement, your position/job functions were transferred through
tendering on August 15, 2005. At the time of the transfer you were in receipt of
direct WSIB benefits (Claim #23650416) and, in my letter to you of August 8,
2005, you were advised that you would remain an employee of the Crown until
such time as you are declared fit to return to work.
We have now been advised by WSIB that you are deemed fit to return to work.
Therefore, effective May 2, 2006, you are declared surplus.
In accordance with the provisions of Article 3.2.2.2 and 5.2(b) of Appendix 18 of
the collective agreement, your surplus benefit entitlements are as follows:
pay-in-lieu as per Article 20.B.2 and
enhanced severance as per paragraph 4 of Appendix 9
termination payments pursuant to Article 53
the right to phase in these lump sum and severance payments over 2 years
pursuant to Article 20B.19: Payment of Monies
the right to purchase benefits coverage (except STSP and LTIP) pursuant to
Article 20B.15: Continuance of Insured Benefits
a sum of $500.00 for the purpose of obtaining resume writing and career
transition services.
Please contact your Human Resources Consultant Ken VanVliet or your OPSEU
representative, if you have any questions.
I want to take this opportunity to thank you for your contributions to the ministry
and wish you well for the future.
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On December 4, 2007 the grievor signed a direction authorizing his surplus funds to be deposited
into his account.
In the employer?s submission there is no breach of the collective agreement. Had Mr. McEvoy
elected to go with the new service provider, the new service provider would have had a duty to
accommodate him in the position once he was able to return to work. The grievor chose to be
declared surplus and received the benefits that flow from that election. Thus there is no
discrimination in this case and no breach of the collective agreement.
The union agreed that the terms of the collective agreement under Appendix 18 had been
properly followed and that there was no discrimination against Mr. McEvoy, given these facts.
The union also noted that Mr. McEvoy was in receipt of WSIB until November 2006.
DECISION
Having carefully considered the submissions and the evidence before, I have decided that there
has been no breach of the collective agreement. The employer followed the requirements under
Appendix 18: Mr. McEvoy was given the choice of being hired by the new service provider or
taking a surplus package. Mr. McEvoy elected to take surplus and received the surplus benefits
required under the collective agreement. That election led to his ceasing to be a crown employee
when he was declared fit to return to work, and there is absolutely no evidence to support a
finding that there has been any discrimination or lack of accommodation for the grievor.
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Thus, for the reasons noted above, I hereby dismiss the grievance.
th
Dated at Toronto this 28 day of May, 2008.
D.J.D. Leighton