GSB# 2005-2265, 2005-2266, 2006-3020

UNION# 2005-0430-0012, 2005-0430-0013, 2006-0430-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Miller)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Richard L. Jackson

Vice-Chair

FOR THE UNION

Kristin Eliot Eliot Smith Barristers and Solicitors

FOR THE EMPLOYER

Jennifer Richards Counsel Ministry of Government Services

HEARING

April 26 & 27, 2007

CONFERENCE CALL

September 11, 2007.

Decision

These are grievances of Mr. Steve Miller, of the Ministry of Transportation and, since they arise out of the same basic situation, they are dealt with all together. They were heard in an expedited arbitration process in which Mr. Miller made some submissions.

Grievance No. 1 – Dated July 25, 2005, GSB File No. 2005-2265

The Ministry of Transportation has improperly excluded me from job competitions and impeded my career with the Ministry by not allowing me secondments into other areas of work.

Grievance No. 2 – Dated August 11, 2005, GSB File No. 2005-2266

I grieve that the Ministry of Transportation, by its actions, has created undue hardship upon myself and family and also created unsafe and stressful working conditions.

Mr. Miller asks, by way of remedy, that he be placed into the next seconded assignment available and to be made whole (re Grievance No. 1) and that the Ministry create (for him) a safer working environment that will cause him less stress (re Grievance No. 2). There is also a third grievance, GSB No. 2996-3020, originating in the same set of facts.

The situation lying behind these grievances is the following. Mr. Miller has worked for the Ministry of Transportation for fifteen years, for many years as an OAG 6 clerk in the City of Kingston. For some years prior to 2000, the grievor had been living in an apartment in Brockville, approximately 50 miles away, and commuting to his job in Kingston. His rationale for living in Brockville was that it was his home town and, with the provincial government looking to downsize or even privatize some of its operations, he believed he would be more likely to find alternative work there than in Kingston.

In 2000, his concerns were borne out when the Ministry announced to its staff that it intended to explore transferring of services to an alternate service provider. Mr. Miller immediately started looking for jobs closer to his home in Brockville. At that point, the grievor and his wife also bought a house in Brockville, his rationale being that (1) with privatization, he would lose his Ministry of Transportation job in Kingston and would end up working in Brockville and (2) the resulting severance package would enable him to bring down the level of mortgage.

His problem arises from the fact that the privatization of the Ministry never did take place, the employees being officially notified in February of 2003 that the plan was being dropped. While good news to the vast majority of Ministry employees living in Kingston, it was bad news for Mr. Miller because he was not – and still has not been – able to find a position in Brockville, either in the Ontario Public Service or elsewhere; therefore, he has had to continue commuting between Kingston and Brockville every day. He has found this financially difficult, because of the cost of commuting (approximately $100 per week) and the fact that there was no severance payment that could reduce the mortgage payment. He has also found it tiring and stressful.

Through the period to 2005, the grievor had one temporary assignment, applied for several other positions, and upgraded his skills in an effort to enhance his chances in job competitions – all with a view to finding an OPS job in Brockville. Unfortunately, this was to no avail: he is still in his position in Kingston and commuting between there and Brockville every day.

This is the context, then, for Mr. Miller’s grievances. He is distressed and frustrated that he failed even to be selected for an interview in several competitions where he thought he was qualified and feels that the Ministry – or, rather, more broadly, the OPS – should have provided him with more developmental opportunities on secondment so as to increase his qualifications, thus enhancing his chances in job competitions. That is his first grievance, for which he now seeks the next seconded assignment available as a remedy. The second and third grievances claim various steps the grievor feels the Ministry should have taken or should now take so as to relieve his stressful situation and compensate him for his losses.

Award

It is not difficult to sympathize with Mr. Miller’s frustration, given the 2000 announcement that the Ministry was going to explore privatization and the 2003 announcement that it was not going forward; it is also easy to appreciate his sense that he has done a lot of things in order to obtain a position in Brockville, none of which have worked out, and to sympathize with the stress resulting from a daily commute of 50 miles each way. Unfortunately, however much one may sympathize on a personal level with Mr. Miller, there is nothing that can be done in this situation with respect to any of these grievances by way of this arbitration award, given the evidence in this case. An arbitrator’s power to act is limited to situations where there is a violation of the collective agreement, and there is simply no violation here. Appointment and assignment of employees to positions is a management right and, short of evidence that that right was exercised in bad faith or discriminatorily – of which there was none in this case – it must be concluded that there was no violation of the collective agreement. Similarly, Mr. Miller’s other claims simply find no support in the words of the collective agreement.

There being no violation of the collective agreement, therefore, the grievances must fail.

Dated at Toronto, this 12^th day of October, 2007.