GSB#2010-1975

UNION#2010-0526-0046

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Schacherl)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Stephen Giles Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Labour Practice Group Counsel

HEARING

March 22, 2012.

Decision

1The grievor, Susette Schacherl, is a Flexible Part Time (hereinafter referred to as “FPT”) Court Registrar at the 361 University Avenue Court in Toronto. In accordance with Paragraph 3(a) of Appendix 32 of the Collective Agreement, she is a Category 1 FPT thereby working a minimum of one thousand hours per annum.

2On March 10, 2010, Ms. Schacherl filed a grievance stating:

“Registrars have been brought from the Civil Division for a temporary posting. Under Article 8.6.1(a) temporary assignments cannot be for longer than six months, or they must be posted and filled under the provisions of Article 6. The six-month period has now been exceeded and three out of six temporary registrars are still filling positions here.

3By way of remedy the grievor requested that the temporary registrars be removed with the positions posted and filled internally at 361 University Avenue or, in the alternative that she be re-classified as a Category 2 or 1500 hour FPT.

4At the outset of the med/arb session, the parties agreed that this matter was to be determined in accordance with Article 22.16. Specifically, the parties agreed that this decision would have no precedential value.

5It is useful at the outset to note that these parties have engaged in an expedited process with this Vice-Chair to determine virtually all of the grievances filed under Appendix 32. Those hearings have been taking place over the last few years and are, in large measure, completed. The grievor was amongst a group of individuals who filed a grievance similar to the matter at hand. In Re OPSEU & Ministry of Attorney General (Di Monte et al) (April 5th, 2011), GSB#2010-0938, the following was said at paragraphs 10 through 12:

A group of registrars who work in the criminal courts filed a grievance that alleged the Employer has violated Appendix 32 when it assigned criminal registrar work to “five additional 1500 annual hour category civil registrars.” This re-assignment caused some of the grievors (who had worked their 1000 hours plus ten percent) to be assigned administrative duties rather than court duties. Such assignments are a violation of Appendix 32 according to the Union.

The Employer maintained that there is nothing in Appendix 32 that modifies or restricts its right to assign work on the basis of its operational requirements once the obligations regarding minimum hours are met. Further, according to the Employer it always made clear that it would move people and assign work in such a fashion so as to ensure that there is no great overages or deficiencies.

I am of the view that there has been no violation of the Collective Agreement. Further, even if I found the grievance to have merit I am without the jurisdiction to award the remedy requested by the grievors to alter their minimum hour category.

6The grievances in Re Di Monte et al were filed five and a half months after the assignment of work to the Civil Division Registrars.

7I met with both parties to hear the nature of this dispute. There was virtually no disagreement on the facts. The grievor is referring to the same work assignment considered in the grievance disposed of by the Re Di Monte et al decision. However, the grievance at hand was filed after six months had elapsed following the initial assignment of the work at 361 University Avenue to the Civil Division Registrars. It was the grievor’s view that because the “temporary” work assignment had exceeded six months, the Employer had violated Article 6 of the Collective Agreement.

8The grievor was of the view that given the reference to Article 6 in Article 8.6.1, an article that applies to FPTs, the positions should have been posted and a competition held.

9The grievor also expressed frustration at the apparent arbitrariness of the work assignment and the negative affect that it had on herself and other Category 1 FPT Registrars at 361 University Avenue. She felt humiliated, bypassed and undervalued.

10The Employer’s view of this matter is similar to the position it took in Re Di Monte et al. The purpose of this assignment of work was to ensure that registrars were able to function in more than one setting thereby maximizing the Employer’s ability to assign work in a cost efficient fashion. Further, the Employer contended that Article 6 of the Collective Agreement does not apply to FPT employees as set out at Article 4(a) of Appendix 32. It was urged that the Article 8.6.1 does not provide an independent right to Article 6. Flexible Part Time employees are only entitled to the rights under Article 6.3 of the Collective Agreement ensuring that when a vacancy is filed it is done so by way of a competition with seniority governing in instances of relative equality.

11There is no doubt that the grievor found this situation frustrating. She had and continues to have a significant desire to alter her Category status thereby increasing her minimum number of hours. It goes without saying that such a change in status would provide her with more income security.

12In discussions with Ms. Schacherl she stated that the rationale for the assignment of work in the first instance was not well explained to herself and her peers by the Employer. I accept that she did not fully comprehend the Employer’s intention at the time. However, I was provided with a Memorandum issued at the salient time that set out the Employer’s wish to cross train certain employees. It specifically said that “this means, for example, that a Court Clerk & Registrar who is usually scheduled to work at 361 University Avenue may now be assigned to perform the same or similar duties at 393 University Avenue or at Old City Hall, as required.” By way of explanation, the memo went on to say “Managers and Supervisors are committed to working with all staff to ensure that work assignments are appropriate and that employees being assigned to other court locations are provided with sufficient orientation, training and notice to support this change in scheduling practices.”

13After considering the matter at hand, I am of the view that the grievance must fail. A review of Article 6 of the Collective Agreement reveals that the only clause to which a Flexible Part Time employee has an entitlement is Article 6.3. As there was no posting of a vacancy, there is no violation.

14Contrary to the Union’s assertion, Article 8.6.1 does not provide an entitlement to all provisions of Article 6. Therefore, the Employer was not obliged to post any positions.

15It should also be noted that Article 4(a) of Appendix 32 that specifically sets out the terms of the Collective Agreement that apply to Flexible Part Time courtroom staff provides for application of only Article 6.3. Therefore, no other section of Article 6 applies to FPT employees.

16As in the Re Di Monte case, even if I found for the grievor, I would not have the jurisdiction to alter her status to that of a Category 2 FPT as requested.

17For those reasons, the grievance is denied.