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HomeMy WebLinkAbout2006-0762.Dvorak.09-06-04 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#2006-0762, 2006-2062 UNION#2006-0530-0024, 2006-0530-0056 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Dvorak) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREFelicity D. Briggs Vice-Chair FOR THE UNIONStephen Giles Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYERGreg Gledhill Ministry of Community Safety and Correctional Services Staff Relations Officer HEARING October 31, 2008 and May 28, 2009. - 2 - Decision [1]In September of 1996 the Ministry of Correctional Services notified the Union and employees at a number of provincial correctional institutions that their facilities would be closed and/or restructured over the next few years. On June 6, 2000 and June 29, 2000 the Union filed policy and individual grievances that alleged various breaches of the Collective Agreement including Article 6 and Article 31.15 as well as grievances relating to the filling of Correctional Officer positions. In response to these grievances the parties entered into discussions and ultimately agreed upon two Memoranda of Settlement concerning the application of the collective agreement during the ?first phase of the Ministry?s transition?. One memorandum, dated May 3, 2000 (hereinafter referred to as ?MERC 1? (Ministry Employment Relations Committee)) outlined conditions for the correctional officers while the second, dated July 19, 2001 (hereinafter referred to as ?MERC 2?) provided for the non-correctional officer staff. Both agreements were subject to ratification by respective principles and settled all of the grievances identified in the related MERC appendices, filed up to that point in time. [2]While it was agreed in each case that the settlements were ?without prejudice or precedent to positions either the union or the employer may take on the same issues in future discussions?, the parties recognized that disputes might arise regarding the implementation of the memoranda. Accordingly, they agreed, at Part G, paragraph 8: The parties agree that they will request that Felicity Briggs, Vice Chair of the Grievance Settlement Board will be seized with resolving any disputes that arise from the implementation of this agreement. [3]It is this agreement that provides me with the jurisdiction to resolve the outstanding matters. - 3 - [4]Both MERC 1 and MERC 2 are lengthy and comprehensive documents that provide for the identification of vacancies and positions and the procedure for filling those positions as they become available throughout various phases of the restructuring. Given the complexity and size of the task of restructuring and decommissioning of institutions, it is not surprising that a number of grievances and disputes arose. This is another of the disputes that have arisen under the MERC Memorandum of Settlement. [5]When I was initially invited to hear theses transition disputes, the parties agreed that process to be followed for the determination of these matters would be virtually identical to that found in Article 22.16.2 which states: The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise. [6]The transition committee has dealt with dozens of grievances and complaints prior to the mediation/arbitration process. There have been many other grievances and issues raised before me that I have either assisted the parties to resolve or arbitrated. However, there are still a large number that have yet to be dealt with. It is because of the vast numbers of grievances that I have decided, in accordance with my jurisdiction to so determine, that grievances are to be presented by way of each party presenting a statement of the facts with accompanying submissions. Notwithstanding that some grievors might wish to attend and provide oral evidence, to date, this process has been efficient and has allowed the parties to remain relatively current with disputes that arise from the continuing transition process. - 4 - [7]Not surprisingly, in a few instances there has been some confusion about the certain facts or simply insufficient detail has been provided. On those occasions I have directed the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In each case this has been done to my satisfaction. [8]It is essential in this process to avoid accumulating a backlog of disputes. The task of resolving these issues in a timely fashion was, from the outset, a formidable one. With ongoing changes in Ministerial boundaries and other organizational alterations, the task has lately become larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances. [9]Jeff Dvorak was an unclassified Correctional Officer who was suspended with pay in early September of 2005. He was then discharged from employment on December 19, 2005 at the conclusion of the investigation. On January 30, 2006 he was reinstated as the result of a Memorandum of Agreement between these parties. The termination was replaced with a thirty day suspension. [10]Part of the Memorandum of Agreement stated: 4. The Employer agrees to reimburse Mr. Dvorak all monies owing, in accordance with the recent provisions of the RPM rollover agreement, and treat all periods, but for the period of the 30 day suspension, as full-time, classified hours. 5. For greater clarity, the employer will reimburse Mr. Dvorak from September 09, 2005 onward, but for the period of suspension from December 14, 2005 to January 27, 2006, all entitlements in accordance with the collective agreement. [11]As noted in the first paragraph above, almost immediately after the grievor had been discharged there was an RPM Agreement signed between the parties (on December 22, 2005) providing that Jeffrey Dvorak should be - 5 - rolled over to classified status. The actual date of conversion for the unclassified officers was to be March 24, 2006. [12]Mr. Dvorak was ill from February 2006 until August 2006 and was paid sick leave. However, on August 28, 2006 he was informed that because he had not yet completed the twenty consecutive days needed to be eligible for short term sick leave, he would have to repay all of the sick leave he had been paid to date. It is this action that Mr. Dvorak grieves. [13]On September 15, 2006, the Employer notified the grievor that it would recover the sick leave monies. [14]It was the grievor?s position that in accordance with the paragraphs set out above from the Memorandum of Agreement reinstating him to employment, he should have been considered a full time classified CO as of September of 2005. It was the Employer?s view that Mr. Dvorak could not be considered classified until March 24, 2006 when all of the other officers were rolled over became classified in accordance with the Roll Over Agreement. [15]In the September 15, 2005 letter sent by the Employer, it was stated, in part: Your reference to a Memorandum of Settlement has been reviewed. Please be advised that the articles you specifically refer to were designed to ensure that you were made whole at the time of the re-instatement (which you were). As further negotiation and rollout of the RPM agreement took place you were then affected similarly to everyone else in the process. The Memorandum of Settlement you reference was not intended to give you advantage over your peer group but only to make you whole in reference to the situation that existed at that time. ?..A review of your attendance history since your conversion indicates that you have not yet satisfied the requirements to access STSP benefits for any of your sick absences since March 24, 2006; therefore, all of your documented sick days since March 24, 2006 until August 20, 2006 equaling 228 hours are being recorded and compensated as LWOP. Finally, be advised that any events of sickness since August 20, 2006, that have prevented you from attending work shall be compensated as LWOP until you satisfy the requirements as identified in Article 44.2 of the Collective Agreement. - 6 - [16]In my view, this dispute is determined by answering the question as to the grievor?s status following the signing of the Memorandum of Agreement. The Union takes the position that Mr. Dvorak was to be considered a classified full time officer as of September 9, 2005. The Employer contended that because paragraph 4 above says that the grievor is to be compensated ?in accordance with the provisions of the recent Roll Over Agreement?, he was not full time back to September, 2005 but was rolled over at the same time as others, that is, March 25, 2006. [17]After much consideration I must agree with the Union. Whatever the intentions of the Employer might have been when it entered into the Memorandum of Agreement reinstating the grievor, paragraphs 4 and 5 provide that all periods after September 9, 2005 would be treated as full time classified hours. If I accepted the Employer?s view of this matter I would effectively read out of paragraph 4 the obligation of the Employer to ?treat all periods, but for the period of the 30 day suspension, as full-time, classified hours?. [18]Further, in accordance with paragraph 5, but for the period of the suspension, the grievor is to receive ?all entitlements, in accordance with the collective agreement? from September 9, 2005. [19]Therefore, if the grievor worked twenty consecutive shifts in accordance with Article 44.2 of the Collective Agreement after September 9, 2005, the Employer should not have recovered the sick leave monies paid to Mr. Dvorak. - 7 - [20]I remain seized in the event that there are difficulties implementing this decision. th Dated at Toronto this 4 day of June 2009. Felicity D. Briggs, Vice-Chair