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Home My WebLink About2006-0495.Richard.11-04-21 Decision en.n EiJJpIo)II!es Grievance Settlement Board smte mo 180 IJlndas 51. WesI TCJRJrm. QBiD IofiG 1ZB Tel (4-16) 326-1388 Fax (4-16) 326-1396 Commission de riglement des griefs des~dela eor.ome ~ Ibeau mo 100. rue IJlndas Ouest TCJRJrm (0nIari0) M5G 1ZB Tel: (4-16)326-1388 T~ : (4-16) 326-1396 ontario GSB#2006-0495, 2006-2537, 2008-1124 UNION#2005-0616-0016, 2006--0616-0002, 2008-0616-0004 IN THE MATIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COlLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION Before THE GRIEVANCE SETILEMENT BOARD Ontario Public Service Employees Union (Richard) - aad - The Crown in Right of Ontario (Minis1Iy of Comrmmity Safety and Correctional Services) Debonh In. Leighton Jennifer Febr Ontario Public Service Employees Union Grievance Officer Felix Lan Minis1Iy of Government Services Legal Services Branch Counsel FOR THE EMPLOYER lIEAKING October I, 2010 and MardI 4, lOll U_n Employer Vtre-Chair -2- Decision [I] Jeff Richard, a correctiooal officer willi 1he minis1Iy~ has 1bree grievances before the board The :first grievance alleges 1hat 1he minis1Iy has discriminated against him by ....cvadWg his participation in the North Bay Jail ICIT team. In 1he second grievance Mr. Richard alleges 1bat the minis1Iy has failed to accommodate him and discriminated against him on the basis of family and marital status cuutUIl Y to 1he Hmnan Rights Code and the collective agreement, by not tnmsfening him to wotk in Sudbury_ The third grievance alleges that 1he minis1Iy has breached mimdes of settlement dated December 10~ 2008 which provided in part as follows: u; _. _the minis1Iy agrees to place the grievOl' in a oompamble permanent home position ootside of 1he minis1Iy wi1bin one year of the sieYJine of this memnnmdmn of settlement n The hearing into 1hese matters proceeded wi1h viva voce and docmnen1ary evidence~ and on! submissions on October l~ 2010 and MardJ.4~ lOlL [2] The parties n:fcucd these grievances to media1iOllhubitmtion in acconIance wi1h Article 22.16 of the collective agreement, At 1he outset of the hearing the parties agreed that I had the jurisdiction to deal wi1h 1hese mat1eIs. They asked that I issue a decision wi1hout precedent or prejudice and wi1hout reasons. [3] The union argued wi1h rq;a1d to 1he first grievance that the grievOI' had been a member of ICIT :fm- many years before tnmsfening to North Bay Jail Upon aniving in Nodh Bay Jail he applied to become a member of 1he ICIT team, but was denied membership on the grounds 1bat he did not have the necessary medical clearance. The employer sulmri.tted 1bat the ICIT position is vohmtary and 1bat management exercised its discretion in a reasonable manner- to deny the grievor membership because of his acoommodatiOIL. -3- 1herefore in the employer's submission there was no breach of the collective agreement and no remedy_ [4] The union argued with regard to the second grievance 1bat Mr. Richard requested a transfer to 1he Sudbury Jail :for both family and professional reasoos. InitiaUy he was promised 1he transfer_ However, he was never 1nmsfem:d The employer submitted that 1he minisky did not promise 1he grievor a tempmaIy as'~PJUllent in Sudbury_ The employer made efforts to achieve 1he transfer_ However, it was not possible as SucIJmy was fully staffed The employer argued that there was no evidence to support a breach of 1he Code or 1he collective agreement [5] WIth regard to 1he third grievance alleging a breach of 1he December 2008 MOS, the employer submitted 1bat it had complied with the settlement agreement by offering the grievor a comparable position. which the grievor turned down. The employer offered the grievor 1he position of groundskeeper at Cecil Facer in SucIJmy. The employer submitted 1bat it also made efforts to :find other positions, but there were none available. The union argued 1bat the gmundskeeper position was not a comparable position to that of a correctional officer_ Although the location in Sudbmy was certainly accqJtable to 1he grievor, the wages were well below a CO's emn~ Moreover, in 1he union's submission 1he wotk itself was of an entirely difflaa4 nature than 1he wotk of a CO and 1herefore was not a comparable position as required by the MOS. The union argued fiIrther 1bat 1he employer's efforts to :find the grievor a comparable position were inadequate- [6] Having carefully considered 1he snbmissions of the parties I have decided 1bat I must dismis'<ii. 1he :first two grievances because 1here is no evidence to support a breach of the -4- collective agreement in either case. However~ I have decided to grant 1he third ~ In 1his case~ 1here is ample evidence to support a findine that 1he employer has breached 1he MOS dated Decem.ber IO~ 2008. The ministIy agreed to place 1he grievor into a comparable permanent home position outside 1he ministIy within one year of the signing of the MOS. The groundskeqx:r position is not a comparable position to 1bat of a correctional o:Jlicer. The nature of1he wOIk: is fimflalTlP.rlbllly different. Finally~ while I recognize 1bat findine a comparable position for a correctional o:Jlicer is not an easy task, and some effort was made, I am convinced that it was not enough to satisfY the employer~s obligation under the MOS_ [7] Thus as requested by the union, I declare 1hat 1he employer has breached the Decem.ber 2008 MOS by not placing the grievor in a comparable position outside of 1he ministIy_ I hereby order the employer to take steps to comply wi1h the tenns of 1he MOS_ I shall remain seized of any issues that may arise in implemen1a1ion of 1his award Dated at Toronto 1his 21!it day of April, WI L ~ " "I , . - . _II '-, "- - u"' Debmah J.D. . Vice-Chair