GSB#2006-0495, 2006-2537, 2008-1124

UNION#2005-0616-0016, 2006-0616-0002, 2008-0616-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Richard)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE UNION

Jennifer Fehr Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Felix Lau Ministry of Government Services Legal Services Branch Counsel

HEARING

October 1, 2010 and March 4, 2011

Decision

1Jeff Richard, a correctional officer with the ministry, has three grievances before the board. The first grievance alleges that the ministry has discriminated against him by preventing his participation in the North Bay Jail ICIT team. In the second grievance Mr. Richard alleges that the ministry has failed to accommodate him and discriminated against him on the basis of family and marital status contrary to the Human Rights Code and the collective agreement, by not transferring him to work in Sudbury. The third grievance alleges that the ministry has breached minutes of settlement dated December 10, 2008 which provided in part as follows: “…the ministry agrees to place the grievor in a comparable permanent home position outside of the ministry within one year of the signing of this memorandum of settlement.” The hearing into these matters proceeded with viva voce and documentary evidence, and oral submissions on October 1, 2010 and March 4, 2011.

2The parties referred these grievances to mediation/arbitration in accordance with Article 22.16 of the collective agreement. At the outset of the hearing the parties agreed that I had the jurisdiction to deal with these matters. They asked that I issue a decision without precedent or prejudice and without reasons.

3The union argued with regard to the first grievance that the grievor had been a member of ICIT for many years before transferring to North Bay Jail. Upon arriving in North Bay Jail he applied to become a member of the ICIT team, but was denied membership on the grounds that he did not have the necessary medical clearance. The employer submitted that the ICIT position is voluntary and that management exercised its discretion in a reasonable manner to deny the grievor membership because of his accommodation. Therefore in the employer’s submission there was no breach of the collective agreement and no remedy.

4The union argued with regard to the second grievance that Mr. Richard requested a transfer to the Sudbury Jail for both family and professional reasons. Initially he was promised the transfer. However, he was never transferred. The employer submitted that the ministry did not promise the grievor a temporary assignment in Sudbury. The employer made efforts to achieve the transfer. However, it was not possible as Sudbury was fully staffed. The employer argued that there was no evidence to support a breach of the Code or the collective agreement.

5With regard to the third grievance alleging a breach of the December 2008 MOS, the employer submitted that it had complied with the settlement agreement by offering the grievor a comparable position, which the grievor turned down. The employer offered the grievor the position of groundskeeper at Cecil Facer in Sudbury. The employer submitted that it also made efforts to find other positions, but there were none available. The union argued that the groundskeeper position was not a comparable position to that of a correctional officer. Although the location in Sudbury was certainly acceptable to the grievor, the wages were well below a CO’s earnings. Moreover, in the union’s submission the work itself was of an entirely different nature than the work of a CO and therefore was not a comparable position as required by the MOS. The union argued further that the employer’s efforts to find the grievor a comparable position were inadequate.

6Having carefully considered the submissions of the parties I have decided that I must dismiss the first two grievances because there is no evidence to support a breach of the collective agreement in either case. However, I have decided to grant the third grievance. In this case, there is ample evidence to support a finding that the employer has breached the MOS dated December 10, 2008. The ministry agreed to place the grievor into a comparable permanent home position outside the ministry within one year of the signing of the MOS. The groundskeeper position is not a comparable position to that of a correctional officer. The nature of the work is fundamentally different. Finally, while I recognize that finding a comparable position for a correctional officer is not an easy task, and some effort was made, I am convinced that it was not enough to satisfy the employer’s obligation under the MOS.

7Thus as requested by the union, I declare that the employer has breached the December 2008 MOS by not placing the grievor in a comparable position outside of the ministry. I hereby order the employer to take steps to comply with the terms of the MOS. I shall remain seized of any issues that may arise in implementation of this award.