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Grievance Settlement Board
GSB#2016-1384, 2016-1385, 2016-1386, 2016-1387
UNION#2016-0108-0017, 2016-0108-0018, 2016-0108-0019, 2016-0108-0020
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## IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
# BETWEEN
Ontario Public Service Employees Union
(Broer et al)
## Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Brian P. Sheehan
Vice-Chair
FOR THE UNION
Dan Sidsworth
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER
Greg Gledhill
Treasury Board Secretariat
Centre for Employee Relations
Employee Relations Advisor
HEARING
February 9, 2017
Decision
[1] The Employer and the Union at the Elgin Middlesex Detention Centre agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Vice-Chair with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and is without prejudice or precedent.
[2] This award concerns four grievances filed by correctional officers at the Elgin Middlesex Detention Centre asserting that the Employer has failed to implement a Memorandum of Settlement. The remedy requested is for the terms of the Memorandum of Settlement to be implemented and a claim for damages to be awarded.
[3] The Employer is of the view that allowing the grievors to work overtime would be inconsistent with the medical restrictions that are applicable respectively to each of the grievors. The employees are therefore identified on the HPRO software utilized by the Employer as being “not qualified” for overtime opportunities. The grievors are of the view that this identification constitutes a violation of their privacy and an affront to their dignity. Accordingly, the grievors filed individual grievances in 2014 seeking that the Employer stop the practice of identifying the grievors as “not qualified” on the HPRO.
[4] On February 25, 2015, the parties entered into an Interim Minutes of Settlement agreement, which provided as follows with respect to these grievances:
WHEREAS the grievors have raised concerns about terms used in HPRO which they feel identify and denigrate their need for accommodation, specifically that the record describes them as “not qualified” for overtime shifts when they are unable to work certain overtime shifts due to their medical restrictions;
AND WHEREAS the parties wish to resolve these grievances fully and finally, on a without precedent and without prejudice basis.
NOW THEREFORE the parties agree as follows:
1. The employer will continue to discuss revised language to replace the term “not qualified.” The grievors’ preferred terms are “deferred” or “ineligible”.
2. The parties will meet no later than 90 days after ratification of the new collective agreement, currently being bargained, to discuss the change of terms.
3. The grievances will not be withdrawn until the matter is resolved.
[5] On April 19, 2016, the parties finalized a Memorandum of Settlement which provided as follows:
1. The Employer agrees to implement the Minutes of Settlement dated February 25, 2015; within (30) thirty days of signing.
2. The employer will revise the language displayed in the Hiring Protocol to replace the term “not qualified”, and replace it with the terms “deferred or ineligible”.
3. The Grievor and the Union agree that the above-noted grievance is settled and is hereby withdrawn.
4. Vice Chair B. Sheehan shall remain seized.
[6] The Employer has yet to comply with paragraph 2 of the April 19, 2016 Memorandum of Settlement. The Employer indicated that it has incurred certain unexpected difficulties in effectuating the mandated alteration to how the grievors are identified, with respect to overtime opportunities, in the HPRO. Even accepting that the Employer may have encountered certain obstacles in implementing the mandated change, the fact that it has been almost nine months since the agreed-to date by which the change had to be implemented, at a minimum, opens the door to question the nature of the Employer’s commitment to live up to the agreement it made with the Union and the grievors.
[7] Further to the above, it is a fundamental truism of labour relations that it is imperative that parties abide by, and comply with, voluntary agreements reached regarding issues in dispute. Specifically, the effective functioning of the grievance arbitration process, which these parties employ to resolve a myriad of grievances, is predicated on the principle that both parties will adhere to, and comply with, the terms of an agreed-to settlement.
[8] Against the above background, the Employer is hereby ordered to fully implement the change outlined in paragraph 2 of the April 19, 2016 Memorandum of Settlement by no later than 30 days from the date of this Award. A failure of the Employer to implement the mandated change by the required date will leave little alternative than to follow up with the issuance of an award of damages to the grievors.
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Dated at Toronto, Ontario this 16<sup>th</sup> day of February 2017.
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minicounsel