GSB# 2000-1214, 2001-0003, 2001-1063, 2002-2150, 2003-0064, 2003-0065, 2003-1073
UNION# 2000-0521-0047, 2000-0521-0048, 2001-0263-0003, 2001-0233-0128, 2002-0233-0034, 2003-0233-0005, 2003-0233-0006, 2003-0233-0018
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Panovski)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
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 Community Safety and Correctional Services
HEARING
May 13, July 7, August 24 & October 29, 2004.
Decision
In September of 1996 the Ministry of Correctional Services notified the Union and employees at a number of provincial correctional institutions that their facilities would be closed and/or restructured over the next few years. On June 6, 2000 and June 29, 2000 the Union filed policy and individual grievances that alleged various breaches of the collective agreement including article 6 and article 31.15 as well as grievances relating to the filling of correctional officer positions. In response to these grievances the parties entered into discussions and ultimately agreed upon two Memoranda of Settlement concerning the application of the collective agreement during the "first phase of the Ministry's transition". One memorandum, dated May 3, 2000 (hereinafter referred to as "MERC 1" (Ministry Employment Relations Committee)) outlined conditions for the correctional officers while the second, dated July 19, 2001 (hereinafter referred to as "MERC 2") provided for the non-correctional officer staff. Both agreements were subject to ratification by respective principles and settled all of the grievances identified in the related MERC appendices, filed up to that point in time.
While it was agreed in each case that the settlements were "without prejudice or precedent to positions either the union or the employer may take on the same issues in future discussions", the parties recognized that disputes might arise regarding the implementation of the memoranda. Accordingly, they agreed, at Part G, paragraph 8:
The parties agree that they will request that Felicity Briggs, Vice Chair of the Grievance Settlement Board will be seized with resolving any disputes that arise from the implementation of this agreement.
It is this agreement that provides me with the jurisdiction to resolve the outstanding matters.
Both MERC 1 and MERC 2 are lengthy and comprehensive documents that provide for the identification of vacancies and positions and the procedure for filling those positions as they become available throughout various phases of the restructuring. Given the complexity and size of the task of restructuring and decommissioning of institutions, it is not surprising that a number of grievances and disputes arose. This is another of the disputes that have arisen under the MERC Memorandum of Settlement.
When I was initially invited to hear theses transition disputes, the parties agreed that process to be followed for the determination of these matters would be virtually identical to that found in Article 22.16.2 which states:
The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.
The transition committee has dealt with dozens of grievances and complaints prior to the mediation/arbitration process. There have been many other grievances and issues raised before me that I have either assisted the parties to resolve or arbitrated. However, there are still a large number that have yet to be dealt with. It is because of the vast numbers of grievances that I have decided, in accordance with my jurisdiction to so determine, that grievances are to be presented by way of each party presenting a statement of the facts with accompanying submissions. Notwithstanding that some grievors might wish to attend and provide oral evidence, to date, this process has been efficient and has allowed the parties to remain relatively current with disputes that arise from the continuing transition process.
Not surprisingly, in a few instances there has been some confusion about the certain facts or simply insufficient detail has been provided. On those occasions I have directed the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In each case this has been done to my satisfaction.
It is essential in this process to avoid accumulating a backlog of disputes. The task of resolving these issues in a timely fashion was, from the outset, a formidable one. With ongoing changes in Ministerial boundaries and other organizational alterations, the task has lately become larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances.
Luke Panovski was a Recreational Officer at Vanier. In June of 2000, Mr. Panovski and Mr. Barry Thomas, representing the Employer, entered into a Memorandum of Settlement to resolve earlier grievances. That agreement stated that the Employer agreed to assign the grievor to Guelph Correctional Centre (G.C.C.) as a Recreation Officer 2 effective July 10, 2000. It was also agreed that there would be no travel time or relocation expenses associated with the agreement. He was assigned to G.C.C. on July 15, 2000 in accordance with the agreement.
In the period between March 5, 2001 and March 3, 2003 Mr. Panovski filed nine grievances alleging various infractions of the collective agreement. A number of hearing days were spent dealing with these disputes. Clarification surrounding certain facts was requested and provided. Additionally I attempted to mediate this matter without success. Having considered the grievor's detailed written facts and the submissions of the parties, I will now deal with each grievance in turn.
In November of 2000, two grievances were filed that contended he was unreasonably deployed and that he should be paid mileage since his re-assignment to G.C.C. In my view, the Memorandum of Agreement was clear in paragraph 2 that the grievor was to be redeployed to G.C.C. and was not entitled to mileage costs. Paragraph 2 stated, "the parties agree that there will be no travel or relocation expenses associated with this assignment". It would be difficult to find that mileage is not a travel expense. Further, I would find it odd that the Employer agreed to reassign an employee to another institution and have mileage costs owing without limit. That is to say that it is beyond credulity that the Employer would transfer the grievor to Guelph with the possibility that it would forever have to pay mileage costs to the grievor until he retired or resigned. Such an agreement makes little sense and I am of the view that paragraph 2 of the Memorandum ensures that would not happen. For those reasons, those grievances are dismissed.
On March 5, 2001, a grievance was filed asserting that the Employer violated the collective agreement because it was using full time staff in a Regular Part Time position at Vanier Correctional Centre. By way of remedy Mr. Panovski asked that the "R.P.T. position be converted to a full time position" and that he receive a new redeployment offer with travel expenses. It is insufficient to set out the facts of this incident. The Employer retains the right to manage its workforce in accordance with Article 2 of the collective agreement. Of course, the collective agreement and various other agreements fetter those rights but I am aware of no document that would hamper the Employer's right to determine whether to assign a specific task to a full time employee and not to a part time employee. Accordingly, I have no jurisdiction to alter a part time position to a full time position. The grievance is denied.
Mr. Panovski filed two grievances on October 11 and 12, 2001. Each alleged the Employer "through the use of subterfuge" created a "new redundant" position for him at the Guelph Correctional Centre. According to the grievor, he had been told that G.C.C. was soon closing but he would retain rights under Article 20 and that Maplehurst, Vanier and OCI were within forty kilometers. He has also been told that CNCC would be a public jail. It was the Employer's contention that when the original announcement was made that G.C.C. was closing, there had been no decision regarding CNCC being privatized.
Mr. Panovski stated in his documentation that on November 21, 2000 he was notified that CNCC would be a private jail and that he along with other employees would have rights under Appendix 18. Later in 2001 the parties agreed to the MERC 1 agreement which allowed employees to access Article 20 on the basis of seniority. In his submissions, Mr. Panovski contends that he then spoke with Linda Elliott, Employer Human Resource Representative, regarding his Memorandum of Agreement and that she told him that he would get Article 20 rights through the Transition Cost Centre. Almost one year later he was told that he had insufficient seniority for Article 20 rights and filed the above noted grievances.
It was the Employer's position that all Recreation Officers were advised that they had the opportunity to be assigned to the Transition Cost Centre positions. According to the Employer, several meetings were held and all employees were advised that assignments would be based on classification and if there were more interested employees than available positions, assignments would be based on seniority. This information was also included in correspondence to all G.C.C. employees dated June 15, 2001. Mr. Panovski received this correspondence and signed that he had done so.
Mr. Panovski said in his statement that "employees were already aware that Penetang (C.N.C.C.) would be private" and therefore Barry Thomas knew that when he agreed to the Memorandum of Agreement that brought about his assignment to G.C.C.
Even if I accepted everything set out in the grievor's statement of facts, I have no evidence before me that Mr. Thomas knew at the time he signed the June 2000 Memorandum of Settlement that the jail in Penetang, CNCC, would be privately operated and that the employees at G.C.C. would be given Appendix 18 rights. The grievor has assumed that Mr. Thomas knew this fact because other employees "knew". That assumption is not fact. Indeed, the assertion that other employees knew is not a fact before me. In order for a finding of negotiating in bad faith, clear and cogent evidence is required and assumptions are insufficient. Accordingly, the grievances are denied.
On October 21, 2002, the grievor filed a grievance that the Employer was promulgating "a position the result of which will result in me being without a continuing employment opportunity". In his view, this was contrary to various sections of the collective agreement, Ministry policy and legislation.
While I understand that the grievor was without a continuing job opportunity at some point, there was no obligation on the Employer, or the Union to ensure that he would continue to be employed. There have been many changes and much upheaval in this Ministry over the last decade. These changes have caused many good and long standing employees to lose their positions with the Ontario Public Service. However, the Employer can organize its workplace as it sees fit as long as it does not violate the collective agreement, other agreements or statute. I have no evidence of any such violation. The October 21, 2002 grievance is dismissed.
As mentioned earlier in this decision, the grievor was re-assigned to Guelph C.C. in accordance with a settlement. He began that reassignment on July 15, 2000. On March 8, 2001, the grievor provided a note from his attending physician stating that he was not able to travel for more than thirty minutes in a vehicle. Accordingly he sought accommodation and that was provided by allowing the grievor to work at Vanier Centre for Women. He eventually returned to G.C.C. in 2002.
On February 25, 2003, the grievor filed the following grievance:
I grieve that I have been subjected to unfair treatment by my employer with respect to travel expenses. During my temporary assignment at Vanier CC and my assignment at GATU, I was disallowed travel expenses while fellow staff on temporary assignments are granted travel time and mileage expenses.
By way of remedy Mr. Panovski sought travel time and mileage expenses for the full period. In my view, this grievance must be dismissed. In his written submission regarding this matter, the grievor said that he "accepted" a temporary transfer to Vanier C.C. However, a review of the facts reveals that to be a mischaracterization of what occurred. The grievor required a different work assignment because of his inability to drive long distance. Accordingly he sought and was granted an accommodation that temporarily assigned him to work at Vanier C.C. That temporary assignment was for the period November of 2000 until January 2002. To be clear, he was not assigned to work at Vanier C.C. by the Employer for its convenience or because of any operational requirements. It would be inappropriate for me, some four years after the original accommodation was granted to order the Employer to pay travel time and expenses for a work assignment that accommodated the grievor by way of less travel time and mileage.
Moreover, as noted by the Employer this grievance was filed in February 2003, some three years after the accommodation began. The Employer asserted that the grievance should be dismissed on the basis of timeliness.
The final grievance filed by the grievor was dated March 12, 2003. He alleged violation of the Memorandum of Understanding regarding Appendix 18 employees and Employment Extensions dated January 22, 2003. He stated that he was surplussed in accordance with Appendix 18 on February 24, 2003 while co-workers with less seniority were given Employment Extensions.
According to Mr. Panovski he made his wishes known regarding his continued employment in a memo sent January 10, 2001. It stated:
I request that my temporary assignment at Vanier C.C. be extended after Guelph C.C. is closed so that I may be considered for a job trade, job transfer or vacancy.
I will also accept temporary assignments to other institutions if needed.
On June 5, 2002, the grievor received notice that TYAC, Maplehurst Complex, Vanier, OCI and HWDC were all advised that he was interested in a temporary assignment as a Recreation Officer. According to Mr. Panovski, five days after he received this memorandum a Correctional officer was temporarily assigned to the position of Recreation Officer at Vanier.
On January 22, 2003 the parties agreed to give Recreation Officers Employment Extensions based on seniority. That agreement stated, in part:
The Employer agrees to identify "Employment Extensions" opportunities where there are operational requirements;
The Employer agrees to offer these "Employment Extensions" opportunities to qualified Appendix 18 employees on the basis of seniority. For clarity the most senior qualified employees shall be offered the opportunities first and so on in descending order of seniority;
Acceptance of an "Employment Extension" position at the worksite means that the worksite becomes the worksite of the employee and that compensation for travel, accommodation, and time credits shall not apply to the employee on the "Employment Extension"; and
The Employer agrees to provide the employees two weeks' notice of the conclusion of the "Employment Extension", at which time the employees will benefit from their entitlements under the OPSEU Collective Agreement, Article 18, 6C.2.
The Employer agrees to discuss the "Employment Extensions" regularly at MERC Implementation meetings.
The grievor applied for and was granted parental leave. That leave ended on February 24, 2003. Upon his return he was given notice of being surplussed in accordance with Appendix 18. He filed a grievance on March 12, 2003 in this regard. He asserts that other employees, for instance, another Recreation Officer, Iain Douglas, with less seniority than the grievor was given an Employment Extension. It was the grievor's position that he should have received that extension.
It was the Employer's position that the grievor was not offered an Employment Extension because none were left at the point he returned from his parental leave. It was the consistent practice of the Employer that employees on various leaves are not given notice of a change in their employment status until their return to work. The Employment Extensions were all filled while the grievor was on leave and there were no further extensions available at the point his leave concluded.
It was the Union's position that the grievor had made his intentions known regarding this very thing, that is, Employment Extension opportunities. Therefore, it was unreasonable in these circumstances to bypass the grievor simply because he was on parental leave. His absence on parental leave should not have foreclosed his opportunity to continuing his employment. Indeed, to deny the grievor his request was adverse impact discrimination.
The Employer disclosed that all Appendix 18 Employment Extensions would terminate and the final Employment Extension for a Recreation Officer ended on September 24, 2004.
I have considered the facts and submissions of the parties. It is not my intention to set out my deliberations in this regard. It is sufficient to order the Employer to pay to Mr. Panovski an amount equal to his salary and benefits from the period February 25, 2003 to September 24, 2004. I remain seized in the event that there are any implementation difficulties in this regard.
Dated in Toronto this 3rd day of February, 2005.