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HomeMy WebLinkAbout1983-0069.Johnston.83-12-28.Between: OPSEU (David Stewart Johnston), Grievor Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: - And - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer J.F.W. Weatherill M. Perrin K. Preston Chairman Member Member R. Anand, Counsel Laskin, Jack & Harris For the Employer: J.F. Braithwaite Manager, Staff Relations Ministry of Transportation and Communications Hearing: September 8, :983 -2- DECISION In this grievance, dated December 30, 1982, the grievor alleges that he was unjustly demoted from the position of Equipment Operator 3 to that of Manual Worker, premium, and that there is a violation of the collective agreement in that an employee with less seniority than the grievor is filling his previous job. The facts, insofar as we find them to be material to the issue we must decide, are not in dispute. The grievor has been employed by the Ministry for some considerable time, and has been classified as an Equipment Operator for some years. Sometime in February, 1980, he was involved in what was said to be a minor accident while operating one of the employer's vehicles. Because of the reported circumstances (the grievor is siad to have lost consciousness while operating the vehicle), the matter was investigated by the Drivers and Vehicles Branch of the Ministry. As a result of that investigation the grievor's licence, then a Class "A" driver's licence, was suspended. Notice of SUSpenSion was issued by the Registrar of Motor Vehicles in the following form: I : -3- This is to inform you that under the provisions of section 27(l) of The Highway Traffic Act, your driver licence is suspended. Effective - 23 June 1980. Reason - Evidence of a medical condition that would affect your ability to operate a motor vehicle safely. This suspension will be withdrawn when you file medical evidence satisfactory to the Ministry, of your fitness to drive safely. The grievor had not been:.permitted to drive by the employer following the accident, although no action was taken with respect to the grievor's'classi- fication until some time after the suspension was in effect. On August 28, 1980,.the District Engineer, responsible for!the section in which the grievor worked, wrote.to him as follows: Following the hearing at which you were present, I have completed my review. As you will recall it had been reported to me’ that your driver's licence had been sus- pended due to health reasons. The evidence presented at the hearing showed that the Deputy Registrar of Motor Vehicles had sent you a letter which stated that your licence should be suspended but which did not actually suspend it. After some delay I have now received a copy of the notice of suspension which was sent to you. It states that your driver's licence is suspended effective June 23, 1980, due to a medical condition that affects your ability to operate a motor vehicle safely, and that the suspension will be withdrawn when you file medical evidence satisfactory to the Ministry of your fitness to drive safely. -4- As you know, Circular 76-043 outlines the policy as it affects the operation of vehicles by employees, particularly when such employees become ineligible to.operate. At the hearing you were also advised and understood that it is possible that you could be removed from employment. It could happen that with the loss of a licence that an employee can be rendered immediately and almost completely unable to perform the duties of his position. It so happens, in your instance, that we can make alternative arrangements. As you are not permitted to operate licenced Ministry equipment becuase of a licence suspension due to medical reasons this means demotion to a non-operating classification with salary protection for a period of six months. You will be reclassified from a Highway Equipment Operator 3 to a Manual Worker Premium effective June 23, 1980, at a salary rate of $6.87 per hour (H.L.0.3) under salary protection. At the termination of the six month period, if you are unable to perform the duties of a Highway Equipment Operator 3, the salary protection will be removed and your rate of pay will be $6.22 per hour, which is the maximum rate of pay of a Manual Worker Premium as of January 1, 1979. The salary revision for 1980 has not yet been established. Please acknowledge that you understand this procedure by signing the statement below on the attached copy and return it to my office. You should keep the original for your records. If you have any questions regarding this ;: matter please contact me. Itwasa requirement of the&grievor's classifi- cation that he hold the appropriate driver's licence. When that licence was suspended, he was then no longer - -5- able legally to perform his work. The loss of the licence does not appear to have been due to improper or'illegal conduct on the griever's part. The employer, however,, was not under any obligation to retain the grievor in a classification whose work he could no longer perform. Demotion, in such circumstances, was not improper. These were not, it should be said, circumstances in which the remarks made by the arbitrator in the Thompson Logging case (L977), quoted in Sooke - Forest Products 3 L.A.C. (3d) 252'at p. 253, are pertinent. There is no suggestion that.the grievor lacks skills or is not competent. His demotion would not "brand him for his working life". It would, and did, have a serious effect upon his earnings and on the nature of 'his work, but the reason for that was simply that his licence had been suspended on grounds relating to his health, and that he could not then be allowed to perform his work. There is no suggestion that when the grievor was demoted there was any other job to which he would have been entitled. The demotion - was, we find, proper. The griever, with the aid of his solicitor, engaged in a protracted effort to p:ove to the author- ities that his condition was such as to support the . . ; -6- renewal of his licence. These efforts, which included' an appearance before the Licence Suspension Appeal Board, were eventually successful. On November 17, 1982, the grievor's solicitor advised the employer that the grievor's licence had been reinstated (it would appear that the grievor now holds a Class "D" licence, the classification system having changed. In any event, it seems that he now holds a licence which would allow him to perform the work of Equip- ment Operator). The grievor then sought to be reassigned to his old classification. The employer would not accede to that request, taking the position that there was then no vacancy in the classification. ' The grievor's job was not filled after his demotion, and the employer's evidence was that it was not intended to be filled, as there was not sufficient work. It may be, as the grievance asserts, that there is an employee junior to the grievor working in the classi- fication, although there is no evidence on that point. In advising the. grievor of his demotion, and of the protection of his salary for a six-month period, the employer was in fact (although without reference thereto), applying article 5.6 of the collective agreement to the grievo>'s circumstances. -7- That article is as follows: 5.6 Where, for reasons of health, an employee is assigned to a position in ~a classification having a lower maximum salary, he shall not receive any salary progression or decrease for a perrod of six (6) months after his assignment, and if at the end of that period, he is unable to accept employement in his former classif~ication, he shall be assigned to a classification consistent with his condition. While it may be thought that the grievor's demotion was not, strictly speaking, "for reasons of health" but was rather because the grievor, his licence being suspended;'could no longer legally perform his work, we consider that it was nevertheless appropriate for the employer'to apply article 5.6 (which was to the grievor's advantage) in the circum- stances. The fact of the matter was that the grievor's licence was suspended on grounds relating to the grievor's health. This was not, of course, a situation in which either the employer or the grievor himself had _ concluded that "for reasons of health" the grievor would have to change his job. The employer here was not relying on any such assertion, and was not under any onus of showing that there was in fact anything wrong with the grievor's health which would prevent his doing his job. The 10~s~ of licence prevented that. . . i ,, -8- Were it not for the application of article 5.6, however, the grievor would not have been entitled to the salary protection he was afforded. He would simply have gone to some other classification directly, if one were available, or indeed some even less desirable conse- quence may have occurred. The grievor was, we conclude, properly assigned to "a classification consistent with his condition". The collective agreement does not provide for such employees subsequently to revert to their former classification except where they assert the same rights as any other employee to apply where a vacancy occurs. It is acknowledged that the grievor now appears to be qualified to be an Equipment Operator. There is, however, no vacancy in that position, and the collective agreement does not provide for the exercise of seniority except in cases of vacancy, or cases of layoff (to put the matter broadly). It was argued that the employer - that is the management of the branch or section in which the griever worked - ought to have intervened in some way in the reinstatement of the grievor's licence. Those procedures were conducted by a sepa?ate branch of the same Ministry. In our view, it would have been improper si, ~ - 9. - for the yr-ievor's superiors to have sought to influence the determinations made by the Drivers and Vehicles Branch or by the Licence Suspension Appeal Board, even although those agencies may be administratively under thesame "employer" or Ministry. There is no evidence that the grievor's superiors made efforts to intervene against the griever's interest (which would of course have been improper), and in our view it would have been improper to intervene at all. For all of the foregoing reasons, it is our conclusion that there has been no violation of the collective agreement. The grievance is accordingly dismissed. DATED AT TORONTO, this 28th day of December, 1983. 1 "I concur" (Addendum to follow) M. Perrin Member K. Preston Member