GSB# 2007-1619

UNION# 2006-0538-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McEvoy)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE UNION

Serge Linarello Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Len Hatzis Counsel Ministry of Government and Consumer Services

HEARING

March 7, 2008.

Decision

On August 28, 2006 Mr. McEvoy grieved “the employer has discriminated against me by improperly denying me my entitlement to return to work with accommodation due to my medical condition/disability. The employer has improperly surplussed me and caused me considerable stress and financial hardship because of their unreasonable and discriminatory actions.”

At the outset of the hearing into this matter, the employer sought to have the grievance dismissed on the ground that there was no breach of the collective agreement between the parties. Although the grievor was given notice that the hearing was to proceed on March 7, 2008, and advised the union that he would attend, he did not appear at the hearing, nor provide any reason for why he did not appear. Thus the parties agreed that the hearing should proceed in his absence.

The employer and the union agreed to the following facts. On October 13, 2004, Mr. McEvoy suffered a workplace injury, and on January 20, 2005 began to receive WSIB benefits. At the time of his injury he was a Zone Striper Operator, classified as a Maintenance Mechanic II in the Ministry of Transportation. In early 2005, the work of Zone Stripper Operators was being privatized. On January 11, 2005 the grievor was advised of his options under the collective agreement and asked to chose whether or not he wished to be part of the new privatized operation, or whether he would prefer to be declared surplus, pursuant to the provisions of the collective agreement, Article 5.2 of Appendix 18. The transfer of the MTO work to the private operator was to occur August 8, 2005. The grievor decided to have his position removed from the RFP. He signed the Employee Election Form on January 14, 2005 selecting the surplus option. Thus according to Article 20.1.3.1 of the collective agreement, his position was declared surplus on August 15, 2005. Mr. McEvoy was advised of this on August 8, 2005, and that his surplus would be held in abeyance while he was in receipt of WSIB benefits. Once he was able, or fit, to return to work, the surplus would take effect.

On May 2, 2006 the grievor was declared fit to return to some work and the surplus notice was triggered. On May 2, 2006 the grievor was advised of this by a letter from the Regional Director.

As result of your decision in January 2005 to have your position removed from the RFP and in accordance with Appendix 18, Articles 3.2.2.2 and 5.2 of the Collective Agreement, your position/job functions were transferred through tendering on August 15, 2005. At the time of the transfer you were in receipt of direct WSIB benefits (Claim #23650416) and, in my letter to you of August 8, 2005, you were advised that you would remain an employee of the Crown until such time as you are declared fit to return to work.

We have now been advised by WSIB that you are deemed fit to return to work. Therefore, effective May 2, 2006, you are declared surplus.

In accordance with the provisions of Article 3.2.2.2 and 5.2(b) of Appendix 18 of the collective agreement, your surplus benefit entitlements are as follows:

• pay-in-lieu as per Article 20.B.2 and
• enhanced severance as per paragraph 4 of Appendix 9
• termination payments pursuant to Article 53
• the right to phase in these lump sum and severance payments over 2 years pursuant to Article 20B.19: Payment of Monies
• the right to purchase benefits coverage (except STSP and LTIP) pursuant to Article 20B.15: Continuance of Insured Benefits
• a sum of $500.00 for the purpose of obtaining resume writing and career transition services.

Please contact your Human Resources Consultant Ken VanVliet or your OPSEU representative, if you have any questions.

I want to take this opportunity to thank you for your contributions to the ministry and wish you well for the future.

On December 4, 2007 the grievor signed a direction authorizing his surplus funds to be deposited into his account.

In the employer’s submission there is no breach of the collective agreement. Had Mr. McEvoy elected to go with the new service provider, the new service provider would have had a duty to accommodate him in the position once he was able to return to work. The grievor chose to be declared surplus and received the benefits that flow from that election. Thus there is no discrimination in this case and no breach of the collective agreement.

The union agreed that the terms of the collective agreement under Appendix 18 had been properly followed and that there was no discrimination against Mr. McEvoy, given these facts. The union also noted that Mr. McEvoy was in receipt of WSIB until November 2006.

DECISION

Having carefully considered the submissions and the evidence before, I have decided that there has been no breach of the collective agreement. The employer followed the requirements under Appendix 18: Mr. McEvoy was given the choice of being hired by the new service provider or taking a surplus package. Mr. McEvoy elected to take surplus and received the surplus benefits required under the collective agreement. That election led to his ceasing to be a crown employee when he was declared fit to return to work, and there is absolutely no evidence to support a finding that there has been any discrimination or lack of accommodation for the grievor.

Thus, for the reasons noted above, I hereby dismiss the grievance.

Dated at Toronto this 28th day of May, 2008.