Loading...
HomeMy WebLinkAbout2007-1768.Van Winckle.08-12-22 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#2007-1768 UNION#2007-0154-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Van Winckle) Union - and - The Crown in Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFOREVice-Chair Richard Brown FOR THE UNION Jennifer Fehr Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Kylie Humphreys Employee Relations Consultant Ministry of Health and Long-Term Care HEARING December 11, 2008. 2 Decision [1]Until April of 2008, Judy Van Winkle was an employee of the Ministry of Health and Long-Term Care (MHLTC) working as a full-time customer service representative in the Windsor office of the claims and registration branch. She continues to perform the very same work under the auspices of the Ministry of Government Services. Ms. Van Winkle alleges MHLTC breached minutes of settlement by not allowing her to take a temporary assignment at the time of the transfer of services between ministries. I [2]The relevant facts are not in dispute. The settlement was negotiated against the backdrop of another temporary assignment that was performed by the grievor as an eligibility review officer in the Ministry of Community and Social Services (MCSS). That assignment was initially expected to last from November of 2005 to June of 2007 but it was subsequently extended until March of 2008. When this extension was granted, the grievor was told by her home ministry that the duration of her temporary assignment could not be extended again. [3]Ms. Van Winkle grieved the employer?s decision to deny a further extension. The grievance was resolved by minutes of settlement dated February 20, 2008 stating: If the grievor is successful in securing a Temporary Assignment outside the Ministry of Health and Long-Term Care , she would be allowed to accept the Temporary Assignment for a period of up to 18 months, if operationally feasible. [4]Ms. Van Winkle returned to her home position at MHLTC the end of March, 2008. On Friday, April 4, Carla Truman at MCSS offered the grievor 3 another assignment as eligibility review officer, slated to commence on April 21 and expected to last two months. The grievor notified MHLTC on Monday, April 7. On April 14, she was told her request to take a temporary assignment was denied. This decision was communicated to the grievor by Sue Peters who was her direct manager. Ms. Peters had discussed the matter with her regional manager, Michael Broadfoot. [5]The grievor contacted the union and alleged a violation of the settlement. On April 23, Lois Taylor, a human resource consultant with MHLTC, asked Ms. Peters if she might be able to release the grievor in May. Ms. Peters agreed to do so. The grievor learned of this decision on April 30. On May 2, Ms. Peters communicated the decision to Carla Truman at MCSS only to learn the position there had already been offered to someone else. [6]The initial decision to veto the temporary assignment was based, at least in part, on the impending transfer of MHLTC?s front-line registration services to Service Ontario in what was then the Ministry of Government and Consumer Services (MGCS). The transfer occurred on April 21 as scheduled. The only immediate impact on the Windsor office was that Ms. Peters ceased reporting to Mr. Broadfoot at MHLTC and commenced reporting through the MGCS management structure. Mr. Broadfoot testified he had a ?strong commitment? to transfer ?adequate and existing resources? to MGCS. [7]Mr. Broadfoot conceded another factor in the initial decision was the potential for unfairness to employees in relation to the selection of someone to replace the grievor. The unfairness would arise if the replacement was selected without a competition. As the temporary assignment would begin 4 very soon after it was offered and was expected to last only two months, it was not practical to run a special competition for the sole purpose of replacing the grievor. [8]In the spring of 2008, the Windsor complement of customer service representatives was comprised of seven full-time employees, two part-time employees and three employees, described as ?on-call?, who worked on a casual basis. Ms. Peters conceded all of these employees did the same work and all of them had substantial experience doing it. She also acknowledged the part-time and casual employees would have been happy to take over the grievor?s workload if she had been allowed to take the temporary assignment. [9]A candidate to replace the grievor could have been selected through a job competition already underway in early April, when she first asked to return to MCSS. This competition had been launched to replace another employee on maternity leave and the interviews were completed by May 1. The ?runner-up? could have been designated as a replacement for the grievor. Ms. Van Winkle discussed this possibility with Ms. Peters on April 10 and the availability of the ?runner-up? is why the manager eventually agreed to release the grievor in May. As Ms. Peters acknowledged, during the period between the start of the temporary assignment on April, 21 and completion of the competition in early May, the grievor?s hours could have been shared among the three casual employees. [10]There was a third reason for initially denying the grievor?s request. The temporary assignment she wished to take was in the same position she had already performed for more than two years. Mr. Broadfoot felt the new 5 assignment was not a ?developmental opportunity? for the grievor because there was not much more for her to learn doing this job. II [11]The evidence indicates the employer?s initial decision to deny the grievor?s request was based on three factors: (1) the commitment MHLTC had made to MCGS to provide adequate resources when services were transferred between ministries; (2) the potential for unfairness in backfilling for the grievor; and (3) the absence of a developmental opportunity for her. My task is to determine whether these factors rendered the temporary assignment not ?operationally feasible? within the meaning of the settlement. [12]The transfer of services between MHLTC and MGCS had no immediate impact on the work performed by customer service representatives. For this reason, I conclude the transfer had little or no relevance to the operational feasibility of allowing the grievor to accept a temporary assignment. Both ministries are part of the same employer and any agreement between them cannot trump the employer?s obligation to the union as set out in the minutes of settlement. [13]Fairness in selecting a replacement may be a relevant consideration when assessing operational feasibility, but the evidence indicates the grievor could have been replaced without any unfairness to other employees. Her work could have been shared among the casual employees for a couple of weeks and then assigned to the runner-up in the competition already underway. 6 [14]The employer generally may be entitled to consider whether a temporary assignment provides a developmental opportunity. Nonetheless, this factor was made irrelevant by the settlement in this case. The employer was obliged to allow a ?temporary assignment? if it was ?operationally feasible.? The settlement made no mention of a developmental opportunity. [15]The foregoing analysis leads me to conclude the employer breached the minutes of settlement by initially refusing the grievor permission to accept the temporary assignment. nd Dated at Toronto this 22 day of December 2008. Richard Brown, Vice-Chair