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HomeMy WebLinkAbout1983-0016.Klonowski.83-10-28. Between: Before: 16183 17183 For the Grievor: For the Employer: Hearing: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Beforo THE GRIEVANCE SETTLEMENT BOAFJ OPSEU (John Klonowski) Grievor - And - The Crown in Right of Ontario ' (Ministry of Correctional Services) Employer M. Teplitsky, Q.C. Vice Chairman L. Robbins Member D.B. Middleton Member I. Freedman Legal Director, Grievance Section Ontario Public Service Employees Union D.W. Brown, Q.C. Crown Law Office Civil Ministry of the Attorney General October 26, 1 983 , -2- . !’ 3 ,I : ‘. ~. _ %, The grievance proceeded on the basis of an agreed Statement of ‘Facts. In short, the grievor was transferred in- voluntarily from Maplehurst to Metro West. The Union contends that this transfer was wrongful because it is not permitted by the Collective Agreement. Mr. Freedman referred us to a prior decision of the Grievance Settlement Board, Rhodes 364/82, in support of this submission, in particular the following passage at page 10 of the Award where the jurisprudence of the Board is succinctly reviewed: "The Ministry could not laterally transfer the griever. This Board made that clear in Manson 449/81, and McGuire, 207/78. In these cases, this Board ruledat Article 4 governs the filling of vacancies and lateral transfers cannot be made as an exercise of managerial discretion. Hence, the griever's letter and Mr. Avery's reply had to be read es a clear expression of interest on the griever's part to move to the Sheppard Court Office by competition, if necessary. It would be unreasonable to say that she evinced interest only in a lateral transfer. Clearly she wanted to move. If it was not possible to simply transfer, then she would compete." Mr. Brown's position was that there was no vacancy at Metro West because that centre is over-staffed and that therefore Article 4.1 does not apply. Article 4.1 provides: "When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at least ten (10) working days prior to the established closing date when advertised within a ministry, or it shall be advertised for at least fifteen (15) 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." - 3- Mr. Brown also submitted that Rhodes and the decisions 'upon which it relied were wrongly decided. In my opinion, once the employer decided to fill a position at Metro West a vacancy existed for purposes of -Article 4.1. Notional staffing levels are not relevant. The employer cannot be compelled to fill a position. When, however, it decides'to do so, a vacancy exists which then must be posted. With respect to Mr. Brown's argument that the prior jurisprudence of this Board is wrong on this point, I find myself in substantial agreement with the decision in Rhodes and the reasoning which it applies. In any event, it would prove chaotic for the parties if different panels of the Grievance Settlement Board refused to follow prior decisions of other panels, parti- cularly where a series of consistent decisions exist as is the case here. In the result therefore the grievance is allowed and the grievor is reinstated to his position in Maplehurst. Mr. Freedman also claimed,by way of relief, exemplary damages of $2,~500.00 and damages for additional mileage result- ing from the grievor having to travel to Metro West, of .25$ a kilometre, the rate paid by the Crown to its employees when they use their car on Crown business. Mr. Brown submitted that, assuming jurisdiction to award exemplary damages, there was no basis for doing so in this case. He also contended that the qrievor was partly at fault and should bear part of the costs of the additional mileage. -4- !i c I agree with Mr. Brown that assuming we had juris- diction to make an award, exemplary damages should not be awarded in this particular case. Despite Mr. Freedman's spirited argument I can see no evidence of bad faith on the part of this employer. In my opinion.the qrievor's damages should not be .,reduced because he may have contributed to 'the entire problem. The employer chose to transfer the qrievor in the face of well- established jurisprudence of this Board. It must take respon- sibility for its decisions. On the other,hand, I do not consider that what the employer pays its employees who supply transporta- tion is the measure of damages for an employee who must.travel an additional distance to work because oft a breach of the Collective Agreement. We must put the grievor in the position he would have been in but for the breach by the employer. Giving' the matter the best consideration that we can it is our opinion that the qrievor would be fully compensated in this respect if he were to receive $15 a day for each day which he worked at Metro West. We will remain seized if the parties are unable to agree on the calculations. DATED at Toronto, Ontario this 28th day of October, 1983. M. Tepli'~. Vice Ch; k L. Robbins Member D.B. Middleton