The URL can be used to link to this page

Home My WebLink About1988-926.Simpson.89-05-25 Decision r (, C~~' ONTARIO CROWN EMPLOYEES EMPLOYls DE LA COURONNE DEL 'ONTARIO COMMISSION DE , REGLEMENT DES GRIEFS 1111 GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST, TORONTO. ONTARIO. M~O IZ8 - SUITE 2100 180. RUE DUNDAS OUEST, TORONTO. (ONTARIO) M50 IZS' BUREAU 2100 TELEPHONEITlLtPHONE (416) 698.0688 926/88 IN THE MATTER OF AN ARBITRATION grc3/~ L{lo under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Simpson) Gri evor - and - The Crown in Right of ontario (Ministry of Transportation) Employer Before: J. Forbes-Roberts I. Freedman R. Trakalo Vice-Chairperson Member Member APPEARING FOR THE GRIEVOR: N. Luczay Grievance Officer Ontario Public Service Employees Unf"-on APPEARING FOR THE EMPLOYER: K.B. cribbie staff Relations Advisor Human Resources Branch Ministry of Transportation HEARING: January 25, 1989 ____~~~~_~.-._--"""~-""""....,.,..,...,-"'7?"'~_r_;""~~~~~.,..~""~~~~~~,__.rr"0_:_r'!';..... - 2 - ( DECISION The instant case concerns a designation of headquarters. The facts are not substantially in dispute. The grievor, Mr. J. Simpson is a Survey Technician and has been with the Ministry of Transportation (lithe Ministry") since 1975. In 1980 the grievor was living in Wil1owdale, and his home was his designated headquarters. Sometime in 1981 he moved from Willowdale to Beaverton, Ontario. Following the move he made a request to have his headquarters redesignated to Beaverton. By letter dated December 1, 1981 the Ministry both refused this request and redesignated Mr. Simpson's headquarters from Willow- dale to 3501 Dufferin street. This location has remained his designated headquarters ever sinGe. In September of 1988 Mr. Simpson grieved seeking a more equitable designation of his headquarters and the attendant benefits pursuant to articles 17, 22 and 23. It was the Ministry's uncontradicted evidence that over the next five (5) years work locations will be moving closer and closer to Toronto. Article 38 - Headquarters states in part: ARTICLE 38-HEAOQUARTERS 38.1 This article applies to employees who do not allend at ~~ w?rk at or work from any permanent ministry faCIlity In Ihe course of Iheir dulies. bul for whom a permanenl ministry facility or other place IS desig- nated as an employee's "headquarters" for the pur- ( 38,2 38.3 c'] poses of the provisions of thiS collective Dgreaml;ln' Dnd 01 various DlIow<lncos which require u tWDdtjllW ters 10 bu spoclfied. A mimstry may designate a headquarters when Df employee is lniliDlly appointed to a IJOsillon, or wher a posihon IS filled by an employee In Dccordilflcl with Article 4. Article 5. or Altlcle 24 of this coltu(, live agrElernenl. AU job postlflgs. nolicer. and oHm: in relalion 10 poSllions covered by this articlu ::;11<11 include the designated headquarters lor the POSI- tion. ThiS deSignation shall be the IOCDtion consl' dered by the ministry to be Ihe most convenionllOl the efficient conduct of the ministry's business, hDv ing regard to the ministry's projection of the 10CDliOl of the employee's work assignmenls lor D perlQd (J Iwo years, II 15 not a requiremenl thai the dusllJ' naled headquarters be a facility whose functlom are relaled 10 the work to be performed by thu employee. and Ihe employee's residence mllY nISi: be designated as his or her headquarters, The Em- ployer will supply to the Umon. by December 30 01 each year. a current list of headquarturs designa. lions lor employues covered by this mhclu, By mutual agreement in Writing between the mint:.;- try and an employee. a new headquarters may vu designaled for an employee al any timu, Dnd V( mutual agreement in wnting belwllen tile /llIlIlStIY and the employee. a temporary or sea50nal heDd. quarters may be designated lor a sIDled period. following which the previousty designated honel. quaners will be reinstated unless it has been changed in accordance with this article, - 3 - /---" 38.4 A ministry may change the heildQual'tvrs 01 all employee covere? by Ihis article, it: (a) the empltwee's residence has been designated as his or her headquarters and he Of she sub- sequently initiales a change 01 residence; or ( (b) a minislry facility whIch has bl;ien de~ignated as the employee s headquarters ceases 10 operalu as a ministry lacility; or (c) the employee is assigned 10 a work location or work locations atleasl 10rlY (40) kms, by road Irom his or her eXlstlllg headquarters, and il is anticipated that tho employee will continue to work in the area 01 Ihe new work location ur work locations 101 at least two (2) years, 38.5 Where a minislry exercises its righl to change the headquarters 01 an employee otherwise than by mulual agreemenl with the employoc. ttlO totlowlng procedure Will a~ply (a) The ministry shatllirst give nollce \0 the el1lployee 01 its intenl, and shall consult with tho employee to determine the employee'S inleresls and Ihe employee'S preferences as to the neVI headquar- tels location, (b) The ministry shall determine Ihe new headquar- ters location in a way which is equitable to both the employee and the ministry. (e) The employee shall be given Ihree (3) months nolice 01 the change in designation ollhe head- quarlers, 38,6 Where it is necesslHY 10 Identily wl\ich one or more ot a group 01 employeeS is 10 lle assignod to a neW headquarters,the employees to be reassigned shall be idontilied by considering Ihe quatilicalions, avalt- ability, and currentlocalion (home, closestlacility and wOlk location). Where Qualifications, availabil- ity and location are relativelY equal.lenglh 01 contin- uous service shall be used to identily tho employeu to be reassigned. 38.7 Employees who relocate their reSidences llecau~o.: 01 a change in headquarlers, olher than 0 temporary or seasonal change, in accordance wllh this article. shall be deemed to have been relocated lor the purposes of the Employer'S poliCY on relocallon expenses, {," L- - 4 - ( " Employer counsel suggested and the Union did not dispute that article 38 first appeared in the collective agreement in 1986. Union counsel argued that pursuant to Peebles, G.S.B 1257/84 the grievor is entitled to have his headquarters redesignated in a fashion which is equitable to both himself and the Ministry. Employer counsel argued that such a grievance had to be filed in 1981 when the redesignation occured. The grievor is now trying to rely on jurisprudence which predates the clause under which he seeks to grieve. It was argued that under article 30 the grievor has no right to grieve because there has been no intervening event which would require the Ministry to consider a request for redesignation. c It is clear that the collective agreement now contains specific language which deals with the designation of headquart- ers, a circumstance which did not exist when Peebles (supra) was argued and decided. Obviously the parties have turned their minds to the issue and the language of the collective agreement must supercede any jurisprudence which predates its existence. What then is the triggering event which would bring article 38 into play? Article 38.2 requires that an employee ed to a position or that a position articles 4,5 or 24. The grievor has not since his headquarters were designated. be initially appoint- be filled pursuant to changed his position Article 38.3 requires the parties' mutual agreement which is obviously absent. This leaves only article 38.4, which states: 36.4 A ministry may change the hO<HJQuaflors of [II, employee covered by this arlicle. if: (a) the omployee's resldonce has been designated as his or her headquarters and he or she sub. sequently initiates a change 01 residenco: or c (b) a ministry lacilily which has been designated (IS the omployelJ s he..dquarters ceaso:; to operate as a mUllS try faCility. or (c) the employee is assigned to a work location or work locations at least forty (40) killS, by road from his or her existing he<Jdquarters, and it is anticipated thatlhe employee will continue to work in the area of the new work location or work locations for at least two (2) years. _________'__ ~~.~.____...30_.,""_"'_.",...y._.......,.."."""~....~~""_,:=.-..,.~~'oIp;\~"=T.~~,!>';'\.:'""':;'",,"Vi"7,-~.......~_':'7,.~-1::"-~........,~.....-' , . - 5 - ~ (' As the grievor's home has not been his designated residence since 1981, article 38.4 (a) cannot apply. There was no evidence led that 3501 Dufferin street has ceased to operate and therefore 38.4 (b) cannot apply. Finally it was the Ministry's evidence' that in the future the work sites will be moving closer to the grievor's designated headquarters, and consequently article 38.4 (c) cannot apply. As there was no evidence led of an event to which article 38 would apply the grievance must be dismissed. Dated at Toronto this 25t:h day of May. 1989. J. Forbes-Roberts, Vice-Chairperson c ) /;:. ,'cc, ~ I. Freedman. Member -""0> f cJ-vJc ck- R. Trakalo, Memb~r ('--, - ) _~__-----..-_....,.......,....,__-.....-....-...._..- ......__..,.._..,.............'. ~...............-v--.....\~~~_...~~~..............,----;",>_-,;~'-'o""""-..". ...,....,.~,.......,_.,.v...-'"."'-..r...---:-::"~~.---;-..-....~"~...._...,-....-..~-....- F_ -.~._""'-.~~""':f."""""~1-~'".,......-~'~-="<"'!'"".,....,.....-.......,........~~~~--s..._..,.",.......-.~~~.",........-:._~,..-~