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HomeMy WebLinkAbout1978-0015.Ibey.78-06-08 ONTARIO a° CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 28-SUITE 2100 TELEPHONE: 4161598-0688 15/78 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: • ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Mr. John D. Ibey) And THE CROWN IN RIGHT OF ONTARIO (Ministry of Transportation and Communications) Before: J. F. W. Weatherill Mice-Chairman E. J. Orsini Member H. Simon Member For the Gri evor: Mr. George Richards Grievance Officer Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario For the Em to er: Mr. W. J. Gorchinsky Senior Staff Relations Officer Staff Relations Branch Civil Service Commission 2nd Floor Frost S. Queen's Park, Toronto Hearing: ri ng: Suite 2100 180 Dundas St. W. Toronto, Ontario May 15th , 1978 i � 2 In this grievance, dated December 15, 1977, the grievor alleges that a position within the bargaining unit was filled without compliance with article 4. 1 of the collective agreement. He seeks the opportunity to apply for the position in question. There is no significant dispute as to the facts. The grievor, who has been employed by the Ministry since 1959, is a Draftsman II in the Surveys and Plans section at Kingston. In the autumn of 1977, it appeared that there would be, in the future, a reduction in the number of Technicians employed in the estimating and drafting group of the . Planning and Design section, also located at Kingston. In fact, a reduction in the number of Technicians in that group has subsequently taken place (the appointment of certain persons for what was, in effect, - seasonal work is, at least in the circumstances of this case, an ir- relevant consideration) ; This anticipated reduction in the work force of a particular group within the Planning and Design section did not in itself affect the grievor. At the same time, the employer had an opening for one person . in the position of Property Agent 1, an "entry" position comparable in salary to that of Road Design Technician, the classification of those referred to working in the Planning and Design Section. Since the Planning and Design Section would be subject to reduction in complement, and since there was very little normal attrition there because of lack of opportunity, it was considered wise to enquire of the Road Design Technicians to find out whether any of them wished to apply as a Property Agent. This course, in the eyes of the employer, had two virtues 1) it allowed for a natural attrition in the complement of Road Design - 3 - i Technician, without the need for declaring the junior employee surplus ; and 2) it encouraged interested persons to apply for the Property Agent job, giving the employer a range of choice it might not otherwise have had. Apart from whatever effect the provisions of the collective agreement might have, these considerations were not unreasonable, and we are satisfied that the responsible officers acted from the best of motives. It- is clear, and indeed it is acknowleged, that there was a vacancy in the position of Property Agent 1. Further, it is to be noted that there was no employee in the Planning and Design section who was in fact proposed to be released at the material times. Certain Road Design Technicians did apply for the Property Agent Position, and one of these - not the most junior and not, it would seem, subject to release was selected. While the Road Design Technicians were advised of the vacancy, it was not posted, and no notice of it was given to other employees. Article 24 of the collective agreement provides as follows : ARTICLE 24 - JOB SECURITY 24.1.1 where it is proposed to release an employee by • reason of shortage of work or funds or the abolition of a position or other material change in organization, the employee shall, where possible, be transferred to another vacancy or work assignment in the Ministry having the same classification or, with the consent of the employee, having a classification with a lower maximum salary as per section 5 of Article 5. 24.1.2 Failing placement in section 24.1.1, the Ministry shall make every reasonable attempt to arrange a transfer of the employee to a position for which he is qualified in any Ministry in the same _ 4 _ work area at the same classification or with the consent of the employee, to a classification having a lower maximum salary as per section 5 of Article 5. 24.2 Notice of release, with copies to the Civil Service Commission and the Union, shall be sent to an employee who is to be released in accordance with the following: a) two week's notice if his period of employment is less than five years; b) four week's notice if his period of employment is five years or more but less than ten years; and c) eight week's notice if his period of employment is ten years or more. 24.3 An employee shall not be released while there is an employee: a) who is in the same classification or position or in another classification or position in which the employee has served during his current term of continuous employment, and for which he is qualified and, b) who is employed in the same administrative district or unit, institution or other such work area in the same Ministry; and, c) who has similar qualifications; and d) who has a shorter length of continuous service. 24.4 Where an employee who has had at least one year of continuous service is released and his former position or another position for which he is qualified becomes vacant in his Ministry within one year after release, notice of the vacancy shall be forwarded to the employee at least fourteen (14) days prior to its being filled and he shall be appointed to the vacancy if, a) he applies therefor within the fourteen (24) days and, b) no other employee who has similar qualifications and a greater length of continuous service applies. • - 5 - 24.5.1 Where it is necessary to release an employee who has completed his probationary period because of the introduction of technological change in equipment or methods of operation, at least two (2) months notice in advance of the change shall be given to the employee affected and to the Union. 24.5.2 The matter will then be referred to 'the joint consultation committee of the parties to discuss and to attempt to resolve the problem with relation to the reallocation and retraining of the affected employees with a view to minimizing the effects of the Employer action required to be taken. This article does not apply in the circumstances of the instant case. There was, as we have noted, no employee subject to release at the material times. While it was considered that it would be necessary to reduce the complement of the Planning and Design section, the person who might then be subject to release would not necessarily (and on the facts, would not likely) be the person who applied for and was appointed to the position of Property Agent. Such a person might or might not have been able to be placed in that position. The transfer which took place was not one made pursuant to article 24. Article 4 of the collective agreement is as follows: ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR . NEW POSITIONS 4.1 When a vacancy occurs or a new position is created in the bargaining unit, it shall be advertised for at least five (5) working days prior to the established closing date when advertised within a Ministry, or it shall be advertised for at least ten (lo) working days prior to the established closing date when advertised service-wide. All applications will be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards. 4.2 The notice of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required and the area in which the position exists. 4.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. where qualifications and ability are relatively equal, length of continuous service shall be a consideration. 4.4 An applicant who is invited to attend an interview within the Civil Service may be granted time-off with no loss of pay and with no loss of credits to attend the interview. This article, clearly, does apply in the instant case: a vacancy in the position of Property Agent 1 did in fact occur. The employer we must find, did not comply with article 4. 1 because, while the employer may have the right to determine whether a posting is to be "within a Ministry" or "service-wide" , the fact is that in the instant case there was no posting at all . There was no notice complying with the requirements of article 4.2. While notice of the vacancy was given to a chosen group of potential applicants, there was no advertisement of the vacancy as required by article 4.1. Notice given to the Road . Design Technicians only was not proper compliance with the requirements of the collective agreement. We do not here deal with the question of how widely vacancies must be advertised in order to comply with article 4. 1, or in particular with the question whether "within a Ministry" may refer to something less than a "Ministry-wide" advertisement. Whatever may be the proper I I - 7 - scope of advertisement, it was not sufficient compliance with article 4.1 simply to invite certain employees in a particular work group to apply for the vacancy in question. It is sufficient for the purposes of this case to say that article 4.1 was not complied with; that the vacancy in the position of Property Agent 1 ought to have been advertised, and that the grievor, among others, was entitled to apply for it. The relief sought is a declaration that the grievor was entitled to apply for that vacancy. For the foregoing reasons, the board so declares. DATED at Toronto, thisi day of June, 1978 . ice—Chairman Member S 1 Member 1 I "t f J r Ontario 117/77 & 24/78 CROWN EMPLOYEES 4161598 0688 Suite 2100 180 Dundas Street West GRlEYANCF SETTLEMENT rOMITO, Ontario BOARD M5G 1Z8 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. Robert F. Maton And The Workmen's Compensation Board Before: Professor Katherine Swinton - dice-Chairman Mr. Andre Fortier - Member Mr. Harry Simon - Member For the Grievor Mr. Grenville Jones, National Representative (W.C.B. ) Canadian Union of Public Employees 15 Gervais Drive, Suite 503, Don Mills, Ontario For the Employer Mr. C. G. Riggs, Hicks, Morley, Hamilton P. 0. Box 371 Royal Trust Tower Toronto, Ontario Hear ring 'Suite 2100 180 Dundas St. W. Toronto, Ontario May 5th, 1978 i - - 2 - The grievor, Robert Maton, has brought two grievances before this Board, Files No. 117/77,-and 24/78 involving written warnings from his employer, The Workmen's Compensation Board of Ontario, for unauthorized absence (117/77) and for irregularities in expense accounts, falsification of' some calls, and unauthorized absence (24/78) . In each case, he has argued that the warnings were unjustly administered because of a lack of notice of employer policies and because of discriminatory application. The two grievances were heard by this Board at the same time and will be decided together. The grievor is a social worker employed at the Workmen's Compensation Board Hospital and Rehabilitation Centre (H & RC) in Downsview The first grievance arose out of his absence from work on the afternoon of May 4, 1977. On that afternoon Mr. Maton attended a meeting of the N. D.P. Task Force on Workmen's Compensation. On May 20, 1977 he received a written warning (in the form of an IDC or "interdepartmental communication" ) from Mr. J. Wisocky, the Director of the Vocational Rehabilitation Branch in which he worked, warning him that an employee must have the permission of his supervisor to change his hours or to leave during working hours. The second grievance involved, in part, another unauthorized absence. On October 14, 1977, Maton received a written warning from his supervisor, Mr. T. Horlings. This warning was revised January 12, 1978 to reflect three bases of employer concern. One was an unauthorized absence on August 12, 1977, followed by an absence August 15 and 15. II 4 - 3 - The absence on these last two days was due to illness, yet Maton had attended a union meeting on the afternoon of August 15. Additional grounds for the warning were the falsification of a caiT in his expense accounts (recorded as a visit to the Workmen's Compensation Board storefront counselling office, when in fact Maton went to the office of Injured Workers' Consultants nearby) and irregularities in expense accounts (improper odometer readings and variations in mileage for the same trips). With regard to the unauthorized absence issue, Mr. Maton has argued that the Workmen's Compensation Board had no clear policy about absenteeism and hours of work. The collective.agreement provides no guidance, as article 7.4 states that the hours of work at the Hospital and Rehabilitation Centre will be as follows: The .local practices concerning hours of work, lunch and rest periods presently in effect for employees at this location will continue in effect for the duration of this Agreement subject to any changes made by mutual agreement. The hours of work at H and RC are from 8:15 a.m. to 4:30 p.m. Monday to Thursday and from 5:15 a.m. to 3:00 p.m. on Friday. The five social workers at the Centre work irregular hours, adjusting their hours when necessary to suit their clients, for example, by making evening calls. They are not paid overtime for such adjustments. Social workers spend part of each week at H and RC and part away from the Centre, malting tails to clients who have been discharged from the Centre. When leaving the Centre, the practice is for them to enter - 4 - their name and sometimes the client's name or their destination in a Hate Book kept by the secretary for their section. If they are not coming in on a given day because they are going directly to calls from home, they telephone the secretary, who makes the entry in the Date Book. The grievor, t4aton, testified that a similar procedure was employed if an employee wishes to take personal time off or to change his hours. Social workers , because they are on irregular hours and ineligible for overtime under the collective agreement, are allowed to take compensating time off in lieu of overtime. Maton testified that the procedure for doing so was to record that fact in the Date Book. That was the procedure which he used on May 3, 1977, when he telephoned the secretary, Jennifer Howlett, telling her that he would visit a client in the morning of May 4 and take five hours of overtime in the afternoon. That afternoon he attended the N.D.P. Task Force meeting as an observer for Local 1750 of COPE. As a result of this absence, Maton received F the IDC dated May 20, 1977 warning him that his supervisor's permission was necessary should he wish to take personal time off during normal business hours. " Maton did not tell his supervisor, Horlings, about his August 12 absence. He said that he did not have an opportunity to do so, for the reason for his absence was his attendance at a meeting at head office with regard to grievances and he had-notice only one to two days in advance. On August 15,Maton testified that he telephoned the secretary about absence due to illness, although he said that he would attend a union-management job r I - 5 - evaluation meeting that afternoon. He did not contact Horlings personally about attending the meeting. On the 16th, he testified that his wife phoned in to say that he was ill . There was no entry in the Date Book with regard to his absence on August 16. Maton's testimony about the method of changing hours of work or obtaining leave was contradicted by Mr. Horlings, who said that Maton should have requested permission to change the core hours of H and RC from his supervisor. Horlings and Mr. Wisocky, Executive Director of the Vocational Rehabilitation Division, noted that Maton knew of the need to obtain such permission. On November 8, 1976 Maton had received a written confirmation from R. D. Holloway, Director of Rehabilitation Services Division, stating employer policies regarding hours of work and absence. This TDC had been prompted by Maton's absence for a few hours on October 14, 1976 to participate in the National Day of Protest. The IDC in his file, which was not grieved, stated in part, s An employee who wishes to change his hours or leave during working hours should discuss it with his supervisor in advance and not proceed without permission to. . . . . . . . fillegible1. 4 In addition, articles 16 and 17 of the collective agreement deal with leave of absence and leave of absence for union activities respectively. They read in part: k - 6 - A leave of absence shall be granted for justifiable personal reasons such as the employee's marriage, sickness or injury in the immediate family requiring the employee's presence at home, or religious holidays. 16(1) (b) Absence for justifiable personal reasons other than the above may be granted upon the request of the employee and the ap- proval of the supervisor. 17(1) It is understood that employees who are Union Representatives have duties to perform for the Employer. Such Employees who desire a leave of absence for Union business must request such absence from their immediate supervisor, as far in advance as is practical. Such absence will be granted, subject to work requirements. However, permission will not be unreasonably withheld. It is on this basis the following is agreed upon. 17(7) All requests for leave of absence permitted in these sections shall be sent to the Director, Staff Relations. In each situation, the employee is required to seek permission from his supervisor. Two other social workers who testified, Gail Simon and Isabelle McGowan, said that the practice in obtaining time off was to seek their supervisor's permission in advance. With regard to the other two grounds for discipline, the facts can be briefly stated. Maton, as a social worker with responsibilities for visiting clients, was reimbursed for travelling expenses incurred F � ]y Fy (S A A 7 _ in Workmen's Compensation Board business. He was required to fill out expense accounts, showing his destinations, the client's name and file number, the odometer reading on his car, and the mileage for the trips. Horlings was concerned at variations in the mileages shown for the same trip. For example, mileages between H & RC, the home of client Joe Magri and Maton's home varied from 16 miles (January 13, 1977 and July 5; 1977) to 24 miles (March 6, 1977). The distance, according to Horlings, is about 15 miles. There were variations with regard to other client visits as well ( Frketic , Smigielski and Landry). Maton attributed these variations to forgetfulness in recording odometer readings, resulting in estimations, and to changes in route taken. As well , he said that he had received no training in filling out expense forms, having received only a sample completed form from his supervisor. Social workers Simon and McGowan testified that they had not been disciplined for mathematical and estimation errors in their expense forms, Horlings testified that he had discussed expense accounts with Maton on several occasions, and Maton said in evidence that he was E "basically aware of how to handle expense accounts". He agreed that several of his mileage figures were inaccurate. L.. A further problem with expense accounts arose because of the falsification of a call to Injured Workers ' Consultants. Fearing employer disapproval of such a visit, Maton recorded the visit as one to the Workmen's Compensation Board storefront office at 924 College Street nearby. I 8 - I The result of this last action, as well as the August 12, 15 and 16 absences and the expense account irregularities, was the January 12, 1978 warning. The grievor argues that both this warning and the May 20, 1977 warning are unjust because the Workmen 's Compensation Board has failed to make clear its policies with regard to absences from work during business hours and with regard to expense accounts. He also claimed that he was the subject of discriminatory treatment, motivated by anti-union sentiment on the part of his supervisors. r Devi-sion Clearly an employee should not be disciplined for breaching an employer's rules about which he had no way of knowing. For reasons of fairness, rules which an employee seeks to enforce should meet the criteria set out in the frequently quoted passage from The- KVP co. Ltd. case (1965) , 16 L.A.C. 73 (Robinson) at 85: 1. It must not be inconsistent with the collective agreement. 2. It must not be unreasonable. 3. It must be clear and unequivocal. 4. It must be brought to the attention of the employee affected E.w before the company can act on it. 5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge. 6. Such rule should have been consistently enforced by the company from the time it was introduced. If one looks first to the absenteeism issue in this case, it is difficult to see how the grievor can deny knowledge of the requirement that - g he notify his supervisor and obtain permission before taking time off during normal working hours. The November 8, 1976 IDC "confirmed" the necessity of obtaining permission. This was followed by the May 20, 1977 IDC with the same information. The collective agreement (articles 16 and 17) clearly indicated the need to obtain permission from the supervisor, and evidence of the witnesses McGowan, Simon and Howlett indicated that they believed this to he the practice. There is no doubt that the social workers at H and RC enjoy a great deal of independence in arranging their workday and the nature of their job requires some flexibility in the hours worked so that clients can be accommodated. Nevertheless, the employer has an interest in knowing their whereabouts during the regular working day (regular being the H and RC hours) , should there be need to contact the social worker or schedule meetings. It is not unreasonable to require the employee to seek permission before taking personal time off during these regular hours, and in fact the collective agreement so recognizes. Furthermore, it is difficult to see much inconvenience to Maton in so doing, For example, the N.D.P. Task Force meeting must have been scheduled before May 3, allowing him time to notify Horlings. Therefore, the written warnings with regard to the unauthorized absences of May 4 and August 12, 15, and 16 were justifiable. Maton also claims that he had no notice with regard to expense account practice. The evidence does not bear this out, for Horlings met with him several times to point out errors. Clearly the employer has an interest in accuracy in expense accounts. There is no allegation of i - 10 dishonesty in the case. The warning is an effort by the Workmen' s Compensation Board to end the grievor's carelessness in recording f mileages. Maton alleges that the warning was motivated by anti-union animus, for other employees did not receive similar warnings for errors in expense accounts. This does not give rise to an inference of discriminatory treatment in this case, for the grievor's errors seem to have been consistent and he does not seem to have made efforts to improve his accuracy. Finally, the falsification of the call to the Injured Workers ' Consultants is also conduct which could understandably cause his employer concern, although not because of the referral of clients to third parties, but because of the inaccuracy in the expense account. The employer's two witnesses, Horlings and Wisocky, indicated that r accuracy was the underlying concern. However, the IN is ambiguous in this regard. Item No. 2 in the January 12, 1978 IDC reads: You also admitted that the address for some visits were altered so that direct contacts with such groups as the Injured Workers Consultants would not be shown as you felt that you would be questioned about this improper conduct. You were advised that it is not the Board's. practice to refer an injured employee to such a third party as it is our job to assist the in- dividual. Therefore, you are to discontinue such " referrals. The wording of this item seems to indicate that the concern was referrals, yet the evidence contradicts this conclusion. When Maton -11- first received a written warning on October 14, 1977, five bases of concern were expressed by the employer (Ex. 3) . Two of these, Item 3 "Preparation of social work reports" and Item 5 "Giving copies of Board reports to others" were deleted in the revised warning of January 12, 1978 which is the subject of this grievance. (Ex. 5) , Item 5 raised the issue of referrals to third parties. According to Horlings and Wisocky, Item 5, along with Item 3, was deleted in order to give the benefit of the doubt to Maton with regard to policies which he believed were unclear. Wisocky said in cross-examination that referrals are not in issue, the second paragraph of Item 2 should be removed from the IOC in Maton's personnel file. The grievance regarding the May 20, 1977 IDC (File 117/77) is dismissed. The second grievance (File 24/78 regarding the January 12, 1978 IDC) is also dismissed subject to the condition that the IDC ,t be amended by the deletion of the second paragraph of Item 2. DATED AT TORONTO THIS 8TH DAY OF JUNE, 1978. r Katherine Swinton, Vice-Chairman. I concur Andre Fortier, Member. See Pages I & II Harry Simon, Member. Di scent ' by Harry Simon In my view the griever has been singled out for harrassment by his supervisor for his union activity. No other employee in this group has been reprimanded for similar mistakes in calculating their car mileage. There were no instructions issued to the employees on procedures to follow in maintaining records on car mileage. No other employee has been reprimanded or warned for referring clients or patients to third parties for advice or assistance. As a matter of fact, this is one of the requirements spelled out in the job descriptions for social workers. It is common practice for employees who are on irregular hours to take time off work for personal reasons when they had accumulated overtime hours to their credit. 't The procedure had been for an employee wishing to take time off to advise the supervisor and when the supervisor was absent to advise his secretary and she would make a notation in the date book. r r The griever had followed that procedure whenever he took time off work, except on August 16th when he was home ill . It is no coincidence that three of the reprimands issued to the grievor were for taking time off to attend to union business. On one of these occasions he attended a meeting with management that had been ar- ranged three weeks prior, the supervisor knew or should have known about these arrangements. . i i I The discriminatory treatment of the grievor is proof of the anti-union animus held by the supervisor. For all of these reasons I would allow both grievances to succeed. Harry Simon Member Toronto, Ontario June 8th, 1978 s S - i