GSB# 2003-1221, 2003-1222, 2003-1223, 2003-1224, 2003-1225, 2003-1226, 2003-1228, 2003-1229

UNION# 2003-0263-0008, 2003-0263-0009, 2003-0263-0010, 2003-0263-0011, 2003-0263-0012, 2003-0263-0013, 2003-0263-0015, 2003-0263-0016

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Koster)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Public Safety and Security)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Scott Andrews Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Greg Gledhill Staff Relations Officer Ministry of Public Safety and Security

HEARING

August 11, 2003.

DECISION

Mr. Mike Koster was a classified correctional officer employed at the Guelph Correctional Centre in 2001. He filed eight grievances alleging various improper Ministry actions. The Union set out the facts that would be called in the event this matter necessitated viva voce evidence.

In June of 2001, in reponse to a letter issued under Part B of the MERC 1 Agreement, Mr. Koster accepted a lateral transfer to a number of correctional institutions. He set out an order of preference subject to availability on the basis of seniority. He chose to accept transfers in the following order, Sudbury Jail, Stratford Jail, Waterloo Detention Centre and so on for a total of eleven choices in all.

In accordance with the MERC 1 Agreement Mr. Koster was granted a lateral transfer to his first choice, Sudbury Jail. He accepted that transfer.

According to the Union, shortly after Mr. Koster’s lateral transfer was confirmed family issues made it impossible for him to relocate to the Sudbury Jail. The grievor enquired about lateral transfer opportunities to institutions within commuting distance of his home in the Kitchener-Guelph area and found none available. Initially he was unable to arrange a temporary assignment to allow him to remain in the Kitchener-Guelph area. However, following March of 2002, he successfully arranged a temporary assignment to the Stratford Jail. This assignment began June 10, 2002.

During the summer months of 2002 while at the Stratford Jail Mr. Koster was involved in a WDHP investigation. The allegations were not substantiated.

During this time Mr. Koster traded jobs with another correctional officer at the Invictus Y.C. in an effort to remain in southwestern Ontario. In November of 2002 the grievor was told to report to Invictus Y.C. to begin a Young Offender training which he needed prior to beginning the work. The training program actually started 2 earlier but he was told he could catch up on the training he had missed. Mr. Koster did not attend the course stating that he was not given proper notice.

In January 2002, Mr. Koster was again told to attend the Young Offender course. According to the Union, the grievor was encountering childcare difficulties and he was unable to attend. Subsequently, he was given two weeks notice to report to Invictus Y.C. without the training. He was further told he was needed at Invictus Y.C. and that he was to report to his home position.

According to the Union, there was at least one other correctional officer who owned a position at Invictus Y.C. who had received the Y. O. training who did not report to that facility until July 2003. Upon his arrival at Invictus Y.C. Mr. Koster was told that management was not ready and he was not assigned to work. Three days later, the superintendent at Invictus offered the grievor a temporary assignment to OCI or Hamilton Wentworth Detention Centre. Mr. Koster was not allowed to return to the Stratford Jail. He refused the assignment offers.

It was the Union’s submission that arguing with the employer and being told different things by management over the following three-week period caused Mr. Koster such stress that his doctor told him to take sick leave. He has not returned to work.

All of the grievances were filed on February 3, 2003. Each alleged a different violation of the collective agreement. I will review these in summary fashion and set out my decision and brief reasons.

Mr. Koster alleged a violation of article 2 because was not afforded an opportunity to obtain a position at GATU. Positions at GATU became available after he accepted the lateral transfer to Sudbury Jail. He ought to have been given an opportunity to obtain a GATU position as more junior persons were able to access those positions. He was incorrectly informed that there were no vacancies at Stratford Jail. Two correctional officers were assigned to Stratford jail on temporary assignments after the grievor was told there were no positions available. He was also refused a temporary assignment to GATU recently despite the fact that employees with Appendix 18 employment extensions with less seniority were working there.

It was the grievor’s assertion that because at least one of those Appendix 18 employees is taking operational manager courses which will broaden his career the refusal to give him a temporary assignment to GATU has the result that he was unable to broaden his career as a possible acting operational manager.

Another grievance alleges a violation of articles 3 and 21. It was the grievor’s position that he has been discriminated against by the Employer because of the various WDHP allegations. The incident was investigated and Mr. Koster was cleared of any wrong doings. However, because of the allegations and investigations Mr. Koster has been constructively disciplined due to the WDHP complaint by his removal from Stratford Jail.

The third grievance before me alleged a violation of articles 6 and 19. In 2001 two unclassified correctional officers were assigned to the Stratford Jail “until closure”. These positions were not posted for classified correctional officers at Guelph C.C. who were about to be displaced from Guelph due to the pending closure nor were the positions identified for lateral transfer under the MERC 1 Agreement. Ultimately the two correctional officers were converted to full time classified status and one was promoted in November 2001. His vacated position should have been posted or made available for lateral transfer. The grievor would have seized upon the opportunity to take one of these two positions had they been made available as they should have for competition or lateral transfer.

The grievor also alleged a violation of article 8. Two correctional officers were assigned to Stratford jail on temporary assignments after Mr. Koster was told no positions were available. Further, he was refused a temporary assignment to GATU recently despite the fact that other employees who were working appendix 18 employment extensions with less seniority were so assigned.

Another grievance cited a violation of article 9 because the ill treatment that he has received by various management personnel has caused him to be on sick leave. Both his personal health and his family life have been detrimentally affected.

decision

There can be no doubt that the closing of various institutions has cause many employees, including those outside the bargaining unit varying degrees of difficulty and personal angst. However, nothing set out in the facts before me would have me find that the Employer, or any or the representatives of the Employer, caused the grievor to be ill either directly or indirectly. That is not to say that I disbelieve that validity of the grievor’s illness. Indeed, I have no evidence before me in that regard. Assuming, for the moment, jurisdiction to do so, for this Board to make a finding that an employee was caused to be ill at the hands of the Employer would require clear and cogent evidence and it simply does not exist in the instant matter.

The remedy sought, amongst other requests, is for a permanent assignment to the Stratford jail. In my view, this is a remedy to which he is not entitled. In his decision dealing with the RFP process at Guelph, Vice Chair Brown found that employees at Guelph at that time were to be considered Appendix 18 employees. Mr. Koster sought and accepted a lateral transfer to Sudbury which was not a closing institution. Accordingly, he had no further surplussing rights and therefore all of the rights and entitlements under appendix 18 ended.

For those reasons, the grievances are dismissed.

Dated at Toronto this 28^th^ day of October 2003.