HomeMy WebLinkAbout2009-0776.Dufour.13-03-08 Decision2012 - OPSEU (Dufour et al) and Ministry of Community and Social Services, GSB#2009-0776, (Briggs)
Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés
de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2009-0776, 2009-0777, 2009-0912, 2009-0913, 2009-0914, 2009-0973,
2009-1008, 2009-1089, 2009-1090 UNION#2009-0323-0003, 2009-0323-0001, 2009-0436-0001, 2009-0436-0002, 2009-0436-0003, 2009-0410-0001, 2009-0436-0004, 2009-0436-0005, 2009-0436-0006 IN
THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Dufour et al) Union
-and -The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Boris Bohuslawsky Eliot, Smith Barristers
& Solicitors Counsel FOR THE EMPLOYER Susan Munn Ministry of Government Services Labour Practice Group Counsel HEARING March 9 and March 28, 2012.
-2 -Decision [1] A number of grievances were submitted to this Board for determination alleging improper surplussing. The grievors were employed by the Rideau Regional Centre and the
Huronia Regional Centre. The Employer requested particulars and the Board made an order for the Union to set out the details of the grievances. Once the Employer reviewed that information,
it put the Union on notice that it would raise a preliminary objection regarding arbitrability. This decision deals only with that preliminary motion. [2] The following are the Union’s
particulars for the Rideau Regional Centre grievances: General Background 1. The grievances allege violations of the following provisions of the 2009-2012 Central Collective Agreement:
Article 20.1.2.1 (consideration of options); Article 20.10.1 (Voluntary Leaves); Article 24 (Leave Without Pay); Article 80.1 (Term of Agreement); Appendix 9 (Employment Stability);
Appendix 17 (Factor 80 Program). 2. Prior to their layoffs, which occurred as set out below, the grievors were employees of the Rideau Regional Centre (RRC). The Centre, operated by
the Ministry of Community and Social Services, provided residential care for persons with developmental and physical disabilities. At the time of their layoffs, all the grievors were
classified as Residential Counsellors, and were members of OPSEU Local 436. 3. In September 2004 the provincial government announced that RRC would be closed by March 31, 2009. The final
stages of the closure began to be implemented in or about September 2008. 4. All the grievors were members of the OPSEU Pension Plan. 5. The 2005-2008 Central Collective Agreement between
the parties expired on December 31, 2008. Appendix 17 of that agreement had extended the Surplus Factor 80 program to December 31, 2008. Pursuant to Appendix 9 of the 2005-2008 Central
Collective Agreement, a “pension bridging option” was made available to surplussed employees. According to s. 2(b) of Appendix 9, . . . employees who have been declared surplus may take
a pension bridging option as a leave of absence without pay but with the continued accrual of pension credits, if the sum of: (i) the six (6) month notice period; (ii) the number of
weeks of paid leave of absence that the employee’s termination payments can be converted into
-3 -under the current provisions of Articles 52 or 78 (excluding attendance credits); plus (iii) a maximum of two (2) years leave of absence without pay, but with continued accrual of
pension credits, would bring the employee to the next earliest date on which he or she could exercise an actuarially unreduced pension option under the OPSEU Pension Plan. 6. With respect
to eligibility for Surplus Factor 80 under the 2005-2008 Central Collective Agreement, it was the practice of the RRC human resources department to inform employees of the option of
applying for an additional unpaid leave of absence as a means of extending service credits, where this was necessary to enable the employee to access Surplus Factor 80, with the bridging
option. In such circumstances, if the request was granted, the reason for the leave was recorded as access to employment in the community, education, or other reasons. 6a. A Memorandum
of Settlement for the 2009-2012 Central Collective Agreement was signed on December 23, 2008. On December 24, 2008 a bargaining unit employee attended the RRC human resources department
and advised that the Surplus Factor 80 program had been extended in the new Collective Agreement. Ms. Faye Code was aware that this information had been provided. 7. The 2009-2012 Central
Collective Agreement was ratified on February 26, 2009. Article 17 of that agreement extended the Surplus Factor 80 program to December 31, 2012. The pension bridging option was also
renewed in the 2009-2012 Central Collective Agreement, in Appendix 9. 8. In late 2008, employees of RRC facing surplus were given an opportunity to voluntarily register for “Variable
Surplus Dates”. A Question-and-Answer sheet was issued by the Ministry of Community and Social Services with respect to Variable Surplus Dates. 9. The deadline for registering for Variable
Surplus Dates, for surplussing in December 2008, was on or about December 15. In the event, however, no employees were issued surplus notices in December 2008. 10. Three grievors signed
up for Variable Surplus Dates — Lori Egan, Elona Morley, and Mary Donovan. 11. Each of the grievors received a notice of surplus dated January 15, 2009, in accordance with Article 20B.1.2.1
of the collective agreement, together with an explanation of available exit options. 12. The grievors who had not registered for Variable Surplus Dates (Sandy Fournier, Brian Moore,
Nancy Dodds) were given three options: Option #1 – Pay-in-Lieu; Option #2 – Pay-in-Lieu, Salary Continuance; Option #3 – Remain
-4 -Available for Assignment. The grievors were required to select an option not later than January 29, 2009. Mrs. Fournier, Mr. Moore and Ms. Dodds all elected Option #3, Remain Available
for Assignment. 13. The grievors who had registered for Variable Surplus Dates (Lori Egan, Elona Morley, Mary Donovan) were given two options: Option #1 – Pay-in-Lieu; Option #2 – Pay-in-Lieu,
Salary Continuance. The grievors were required to select an option not later than January 29, 2009. Ms. Egan, Ms. Morley, Ms. Donovan all elected Option #2, Pay-in-Lieu, Salary Continuance.
14. At the time the surplus notices were issued, none of the grievors would have qualified for Surplus Factor 80 in the normal course, including with the bridging option, even assuming
the programs would ultimately be made available again under the new collective agreement then being negotiated. In any event, the grievors were not given the option in their surplus
notices of participating in Surplus Factor 80. 15. At the time the surplus notices were issued, the grievors were not advised that they may be eligible for Surplus Factor 80, with the
bridging option (assuming these programs would be made available again under the new collective agreement), if they obtained a service extension in the form of an additional unpaid leave
of absence. 16. At the time the surplus notices were issued, the grievors were not aware that Ms. Alison Kaczan (see below) had applied for, and been granted, a leave of absence, or
that this could be done in an effort to achieve eligibility for Surplus Factor 80. With the exception of Ms. Mary Donovan (see below), none of the grievors applied for a leave of absence.
17. All the grievors received a notice of layoff dated January 30, 2009, in accordance with Article 20B.2.1 of the collective agreement. 18. In the case of those grievors who elected
Option #2 (Ms. Egan, Ms. Morley, Ms. Donovan), the notice of layoff stipulated that their last day of work would be July 29, 2009. 19. In the case of those grievors who elected Option
#3 (Mrs. Fournier, Mr. Moore, Ms. Dodds), the notice of layoff stipulated that they would be notified if an assignment opportunity arose. The notice further stated that if no assignment
opportunity arose, the grievors would be advised if they were able to exercise displacement rights. None of these grievors were offered an assignment opportunity or were able to exercise
displacement rights. 20. By letter from RRC dated May 1, 2009, Mrs. Fournier, Mr. Moore and Ms. Dodds were advised that no displacement opportunities were available, and that their notice
period would run until July 29, 2009.
-5 -21. On March 30, 2009, Kevin Sawicki, Acting Director of Union-Management Relations for the Ministry of Government Services, issued a memo on the Extension of Surplus Factor 80 under
the 2009-2012 Central Collective Agreement. 22. After ratification of the 2009-2012 Central Collective Agreement on February 26, 2009, the Surplus Factor 80 program was made available
retrospectively to those employees who had received surplus notice on or before December 31, 2008. Approximately 28 employees were affected, and those employees were contacted by letter
and given the option of accessing Surplus Factor 80. 23. With respect to this retrospective application of Surplus Factor 80, employees who had originally opted for the lump-sum Pay-in-Lieu
option were deemed to have resigned from the Ontario Public Service, and were not given an opportunity to change their decision. Those employees who opted for the Pay-in-Lieu, Salary
Continuance option were deemed to be active employees on the payroll, and were given the option to access Surplus Factor 80. 24. None of the approximately 28 employees who were affected
at this juncture required an additional leave of absence to reach their Surplus Factor 80 dates. 25. After ratification of the 2009-2012 Central Collective Agreement, the RRC human resources
department distributed two memoranda to surplussed employees. The first was entitled “Surplus Factor 80: Employees who received Notice of Lay Off on or before February 25, 2009” [the
“Surplus Factor 80 Memorandum”]. The second was entitled “Factor 80 Retirement Under the Pension Bridging Option” [the “Bridging Memorandum”]. 26. For example, Diane Jackson was one
of the employees found to be eligible for Surplus Factor 80. She received notice of surplus in November 2008 and had a Surplus Factor 80 date of May 2010. After ratification of the 2009-2012
collective agreement, she was notified by letter and phone call from the RRC human resources department of a meeting with respect to her options on being surplussed. She was also provided
with a copy of the Surplus Factor 80 Memorandum. At the meeting she was advised that she was eligible to participate in the Surplus Factor 80 program which had been extended under the
new collective agreement. It was further stated that she could opt between termination payments or being “bridged” to an unreduced pension under Surplus Factor 80, in which case she
would be “gone but not off the books”. Ms. Jackson opted for the latter. 27. After ratification of the 2009-2012 Central Collective Agreement, the grievors were not given an opportunity
to reconsider options or to access Surplus Factor 80 by means of seeking an additional unpaid leave of absence. 28. The grievors would have elected to pursue eligibility for Surplus
Factor 80, through an additional unpaid leave of absence, had this been given to them as an option at any point or had they otherwise been aware that this could be done.
-6 -29. RRC maintained a list of the employees who were granted leaves of absence without pay during the relevant times, the dates of the leaves, and the reason for the leaves. Individual
Grievors Elona Morley 30. In or about February 2008, Ms. Morley had a discussion with Sharon Murphy-Healey, a manager at RRC, about the Centre’s anticipated closure in March 2009. Ms.
Morley asked whether it might be possible to arrange a leave of absence until July 2009, as this would enable her to qualify for an unreduced pension under Surplus Factor 80. Ms. Murphy-Healey
replied: “No, once Rideau is closed [i.e. in March 2009], you are done. They will not do that”. 31. In June or July 2008, Ms. Morley again raised the possibility of applying for a leave
of absence, this time with Connie Coville, a manager at RRC. Ms. Morley indicated that the purpose of taking a leave would have been to allow her to reach Surplus Factor 80. Ms. Coville
stated: “They are not giving leaves”. 32. In October or November 2008, Ms. Morley spoke with Doug Noble, a consultant in the human resources department of RRC. Mr. Noble confirmed that
Ms. Morley was approximately six months short of reaching Surplus Factor 80, and said that “there was nothing he could do to help her”. Mr. Noble also stated, referring to the ongoing
collective agreement negotiations: “We have no idea if it [i.e. Surplus Factor 80] will be back in”. 33. Ms. Morley’s Surplus Factor 80 date (with bridge) would have been July 25, 2012.
To qualify for an unreduced pension under Surplus Factor 80, she would have required an additional leave of absence of six months. Sandra Fournier 34. On or about January 15, 2009, Mrs.
Fournier spoke with manager Connie Coville, who advised her that she would “definitely” be eligible for Surplus Factor 80. 35. On January 16, 2009 Mrs. Fournier spoke with Doug Noble
in the RRC human resources department. Mr. Noble advised that Ms. Fournier was 45 days short of reaching Surplus Factor 80. 36. Mrs. Fournier’s Surplus Factor 80 date (with bridge) would
have been March 16, 2012. To qualify for an unreduced pension under Surplus Factor 80, she would have required an additional leave of absence of 45 days. Lori Egan and Mary Donovan
-7 -37. In November or December 2008, Ms. Egan and Ms. Donovan spoke to Faye Code, Manager of Human Resources at RRC, to inquire about their options in respect of the Centre’s pending
closure. Ms. Code advised them that they would not qualify for Surplus Factor 80, even if it were made available under the new collective agreement, because they did not have the requisite
years of service. At this meeting, based on these discussions, that Ms. Egan and Ms. Donovan chose to register for Variable Surplus Dates. 38. In the latter part of January 2009, after
they had received notice of surplus, Ms. Egan and Ms. Donovan again spoke with Ms. Code. They had heard of the leave of absence granted to Alison Kaczan (see below), and wanted to know
whether it was in fact possible to obtain a leave in order to reach Surplus Factor 80. Ms. Code confirmed that other employees had been granted additional leaves of absence and were
thereby able to access Surplus Factor 80, with the bridging option. In response to a question from Ms. Code, both Ms. Egan and Ms. Donovan indicated that they would have applied for
a leave of absence, had they known that this was possible. 39. Subsequent to this second discussion in January 2009, Ms. Egan did not formally apply for a leave of absence. Ms. Donovan
did apply, but her request was declined. 40. Ms. Donovan’s written request for a ten-month leave of absence was dated January 26, 2009, and stated that the leave was sought for the purpose
of enabling Ms. Donovan to reach Surplus Factor 80. By letter dated January 29, 2009, Ms. Deborah Mitchell, Facility Manager, turned down the request. The reasons given were that Ms.
Donovan had “voluntarily register[ed] for the Variable Surplus Dates and receiv[ed] notice in accordance with Article 20B.1.2.1 of the OPSEU Collective Agreement on January 15, 2009
. . . combined with closure announcement that Rideau Regional Centre will be closed by March 31, 2009”. 41. Ms. Egan’s Surplus Factor 80 date (with bridge) would have been August 27,
2012. To qualify for an unreduced pension under Surplus Factor 80, she would have required an additional leave of absence of seven months. 42. Ms. Donovan’s Surplus Factor 80 date (with
bridge) would have been November 17, 2012. To qualify for an unreduced pension under Surplus Factor 80, she would have required an additional leave of absence of ten months. Nancy Dodds
43. In late 2008, Ms. Dodds spoke with Noreen Barnett, Director of Residential Services at RRC about the possibility about applying for a leave of absence. Ms. Barnett stated that leave
requests were not being entertained for anyone, because residents were being transferred to group homes, and the presence of staff was necessary to ensure proper care of the residents.
-8 -44. Ms. Dodds’ Surplus Factor 80 date (with bridge) would have been March 3, 2012. To qualify for an unreduced pension under Surplus Factor 80, she would have required a leave of
absence of 32 days. 45. Ms. Dodds received WSIB benefits for 30 days during her notice period, which increased her amount of service credits by a corresponding amount. If that period
of WSIB eligibility is taken into account, she would have required a leave of absence of two days to qualify for an unreduced pension under Surplus Factor 80. 46. Ms. Dodds remained
on-call at the RRC as the Search and Rescue Master, on a volunteer basis, until March 31, 2009. The union reserves the right to present and argue the issue of whether this two-month
period constituted active employment in computing years of service for the purposes of determining Surplus Factor 80 entitlement. Brian Moore 47. Mr. Moore had several discussions with
Linda Code, a consultant in the RRC human resources department, regarding his eligibility for Surplus Factor 80. In the first discussion, Ms. Code advised Mr. Moore that he did qualify
for Surplus Factor 80. In the second discussion, which took place when Mr. Moore met with Ms. Code to review his exit options, Ms. Code advised that in fact Mr. Moore fell short of meeting
the Surplus Factor 80 requirements by 30 days. Mr. Moore asked about the possibility of applying for time off, and Ms. Code replied: “It is not happening”, i.e. no leaves of absence
were being granted. About two weeks later, Ms. Code further clarified Mr. Moore’s status, by indicating that he would fail to meet Surplus Factor 80 by five months, since he had previously
taken parental leave and was not permitted to pay back those monies to reestablish the credits in his pension plan. 48. In addition, Mr. Moore raised the possibility of applying for
a leave of absence with several supervisors, including Karen Reust, Marion Walker, and Marion Steele. Mr. Moore recalls that the essence of these discussions was that it was a “no-go
deal”, that is, applications for leave were no longer being entertained. 49. Doug Noble of the RRC human resources department similarly advised Mr. Moore that leaves of absence for education,
placement or other purposes were no longer available. 50. Mr. Moore does not recall the date of these discussions, i.e. whether they occurred before or after he was given notice of surplus.
51. Mr. Moore’s Surplus Factor 80 date (with bridge) would have been May 25, 2012. To qualify for an unreduced pension under Surplus Factor 80, he would have required an additional leave
of absence of five months.
-9 -Other Employees Alison Kaczan 52. At the relevant times Boris Kaczan and his spouse Alison Kaczan were both employees of RRC. Ms. Kaczan was employed as a Residential Counsellor.
In late 2008, during a conversation with Ruth Shirley, consultant in RRC’s human resources department, Mr. Kaczan said in relation to the pending closure: “Too bad we can’t get a leave
of absence past March 31, 2009”. Ms. Shirley replied: “That’s not true, you can. People have done it”. 53. After this conversation with Ms. Shirley, Mr. Kaczan suggested to Ms. Kaczan
that she apply for a leave of absence as a means of reaching Surplus Factor 80. On January 8, 2009 Ms. Kaczan applied for a six-month leave of absence, and this request was orally granted
on January 9, with written confirmation from RRC’s Acting Administrator on Monday January 12, 2009. 54. RRC recorded the reason for Ms. Kaczan’s leave as being External Work Experience.
55. But for the decision to grant a leave of absence, Ms. Kaczan would have been among the employees designated to receive surplus notices on January 15, 2009, and would have fallen
short of her Surplus Factor 80 date, even with the bridging. Her manager, Connie Coville, called during the week to determine whether she wished to be surplussed or to proceed with the
leave of absence. Ms. Kaczan confirmed her wish to be placed on leave. Ms. Kaczan’s Surplus Factor 80 date (with bridge) is July 2012, and on that date she will qualify for an unreduced
pension. 56. Ms. Kaczan had not registered for Variable Surplus Dates. Coreen Broadbent 57. Coreen Broadbent was employed at the RRC as a Residential Health Nurse. As of February 2009
she had not received a notice of surplus. At that time, she made inquiries with RRC’s human resources department to determine if she would be eligible to bridge to an unreduced pension
under Surplus Factor 80. Doug Noble of the department advised Ms. Broadbent that she could reach Surplus Factor 80, but that she would have to apply for, and be granted, a leave of absence.
On the basis of this advice, Ms. Broadbent applied for a leave of absence for the period March 9 to June 28, 2009. The leave was granted on February 18, 2009, on condition that Ms. Broadbent
remain available for redeployment in the Ontario Public Service. (Ms. Broadbent was due to commence work with another employer on March 17, 2009. However, no redeployment opportunities
arose.) Ms. Broadbent’s leave was subsequently extended by one month. 58. RRC recorded the reason for Ms. Broadbent’s leave as being External Work Experience.
-10 -59. On July 27, 2009 Ms. Broadbent was issued a notice of surplus, which provided her with four options: Option #1 – Pay-in-Lieu; Option #2 – Pay-in-Lieu, Salary Continuance; Option
#3 – Remain Available for Reassignment; Option #4 – Surplus Factor 80. Ms. Broadbent was required to select an option not later than August 11, 2009, and chose Option #4 – Surplus Factor
80. 60. Ms. Broadbent’s Surplus Factor 80 date (with bridge) is May 2012, and on that date she will qualify for an unreduced pension. 61. In December 2008 Ms. Broadbent registered for
Variable Surplus Dates, but later wrote a letter requesting that her name be taken off the list. [3] The particulars for the Huronia Regional Centre are as follows: General Background
1. The grievances allege violations of the following provisions of the 2009-2012 Central Collective Agreement: Article 20.1.2.1 (consideration of options); Article 20.10.1 (Voluntary
Leaves); Article 24 (Leave Without Pay); Article 80.1 (Term of Agreement); Appendix 9 (Employment Stability); Appendix 17 (Factor 80 Program). 2. Prior to their layoffs, which occurred
as set out below, the grievors were employees of the Huronia Regional Centre (HRC). The Centre, operated by the Ministry of Community and Social Services, provided residential care for
persons with developmental and physical disabilities. At the time of their layoffs, the grievors were classified as Residential Counsellors, and were members of OPSEU Local 323. 3. In
September 2004 the provincial government announced that HRC would be closed by March 31, 2009. The final stages of the closure began to be implemented in or about September 2008. 4.
The grievors were members of the OPSEU Pension Plan. 5. Neither grievor signed up for Variable Surplus Dates. 6. The grievors received a notice of surplus dated October 16, 2008, in
accordance with Article 20B.1.2.1 of the collective agreement, together with an explanation of available exit options. 7. The grievors were given three options: Option #1 – Pay-in-Lieu;
Option #2 – Pay-in-Lieu, Salary Continuance; Option #3 – Remain Available for Assignment. The grievors were required to select an option not later than October 31, 2008. Both grievors
elected Option #3, Remain Available for Assignment.
-11 -8. At the time the surplus notices were issued, the grievors would not have qualified for Surplus Factor 80 in the normal course, including with the bridging option, even assuming
the programs would ultimately be made available again under the new collective agreement then being negotiated. In any event, the grievors were not given the option in their surplus
notices of participating in Surplus Factor 80. 9. At the time the surplus notices were issued, the grievors were not advised that they may be eligible for Surplus Factor 80, with the
bridging option (assuming these programs would be made available again under the new collective agreement), if they obtained a service extension in the form of an additional unpaid leave
of absence. 10. At the time the surplus notices were issued, the grievors were not aware that a leave of absence could be sought in an effort to achieve eligibility for Surplus Factor
80. The grievors did not apply for a leave of absence. 11. The grievors received a notice of layoff dated October 31, 2008 in accordance with Article 20B.2.1 of the collective agreement.
The notice stipulated that they would be notified if an assignment opportunity arose. The notice further stated that if no assignment opportunity arose, the grievors would be advised
if they were able to exercise displacement rights. The grievors were not offered an assignment opportunity and were not able to exercise displacement rights. 12. By letter from HRC dated
January 30, 2009, the grievors were advised that no displacement opportunities were available, and that their notice period would run until April 30, 2009. 13. After ratification of
the 2009-2012 Central Collective Agreement on February 26, 2009, the grievors were not given an opportunity to reconsider options or to access Surplus Factor 80 by means of seeking an
additional unpaid leave of absence. 14. The grievors would have elected to pursue eligibility for Surplus Factor 80, through an additional unpaid leave of absence, had this been given
to them as an option at any point or had they otherwise been aware that this could be done. Individual Grievors Dave Nichols 15. In October 2008 Mr. Nichols met with Kathy Johnson of
the HRC human resources department in order to discuss his options upon being surplussed. On the subject of Surplus Factor 80, Ms. Johnson indicated that “we don’t know whether it’s
going to happen or not [i.e. whether the program would be renewed in the new collective agreement then being negotiated] so it’s not relevant”. Mr. Nichols replied that, regardless of
whether “it happened or not”, he wanted to be in the best possible position to remain on payroll and thereby access Surplus
-12 -Factor 80 and the bridging option, in the event these programs became available again under the new collective agreement. Ms. Johnson replied that the “best thing” for Mr. Nicholas
would be to remain available for assignment, and transfer to Rideau Regional Centre in order to displace a junior employee. 16. On October 16, 2008, in electing Option #3, Remain Available
for Assignment, Mr. Nichols added a signed note to the standard option form. The note read: “I am exercising this option under duress. It is my position that I am entitled to elect under
the Factor 80 option which is not being offered to me. So as not to adversely affect my choice any further, I am electing, as above, but I formerly reserve my right to withdraw this
election once my right to elect, under the Factor 80, is confirmed”. 17. Mr. Nichols met with Ms. Johnson again in April 2009, before the expiry of his layoff notice at the end of the
month. He had heard about the unpaid leave of absence offered to Sonia Patterson (see below), and asked whether he could be given the same option as a means of reaching his Surplus Factor
80 date. Ms. Johnson answered that this was not possible because Ms. Nichols had already made his election in October 2008. 18. Mr. Nichols’ Surplus Factor 80 date (with bridge) would
have been July 5, 2012. To qualify for an unreduced pension under Surplus Factor 80, he would have required an additional leave of absence of about seven months. Renée Dufour 19. In
October 2008 Ms. Dufour met with Kathy Johnson of the HRC human resources department in order to discuss her options upon being surplussed. Ms. Dufour asked Ms. Johnson whether there
was anything she could do in order to reach her Surplus Factor 80 date. Ms. Johnson responded, “You can’t reach your pension, no matter what”. 20. In the result, Ms. Dufour decided to
remain available for assignment, in hopes that she could eventually transfer to the Smiths Falls facility and displace a junior employee. 21. On October 16, 2008, in electing Option
#3, Remain Available for Assignment, Ms. Dufour added a signed note to the standard option form. The note read: “I am exercising this option under duress. It is my position that I am
entitled to elect under the Factor 80 option which is not being offered to me. So as not to adversely affect my choice any further, I am electing, as above, but I formerly reserve my
right to withdraw this election once my right to elect, under the Factor 80, is confirmed”. 22. In April 2009, after she had heard about the leave of absence granted to Sonia Patterson
(see below), Ms. Dufour asked Ms. Johnson whether she could be given
-13 -the same option, in order to allow her to access Surplus Factor 80. Ms. Johnson replied that it was too late to exercise such an option. 23. Ms. Dufour’s Surplus Factor 80 date
(with bridge) would have been August 22, 2012. To qualify for an unreduced pension under Surplus Factor 80, she would have required an additional leave of absence of about nine months.
Other Employees Sonia Patterson 24. Sonia Patterson, a Residential Counsellor, was due to be surplussed in February 2009, being first or second on the surplus list at that time. Her
Surplus Factor 80 date would have been in August 2009, and she would not have been eligible for the program in the normal course, even with the bridging option. At that time, Ms. Patterson
was aware that she would not meet the program requirements, and had no knowledge that it might be possible to access Surplus Factor 80 by way of an additional unpaid leave of absence.
25. In the first week of February, prior to a notice of surplus being issued, Ms. Patterson received a phone call from Kathy Johnson of the HRC human resources department, requesting
that Ms. Patterson meet with her. Ms. Patterson went to Ms. Johnson’s office, where Ms. Johnson indicated that Ms. Patterson could make a choice – either to take a six-month leave of
absence to enable her to reach her Surplus Factor 80 date, or to be surplussed. Ms. Patterson elected to take the leave of absence, and Ms. Johnson processed the necessary documents
to enable this to happen. 26. Ms. Patterson’s leave of absence began on February 6, 2009 and expired in August 2009, at which time the surplussing process commenced. She will qualify
for an unreduced pension under Surplus Factor 80, with the bridging option, in August 2012. 27. Ms. Patterson had not registered for Variable Surplus Dates. Ellen Beaton 28. Ellen Beaton,
a Counsellor, anticipated that she would be surplussed in February 2009. If she had been surplussed at that time, she would not have reached her Surplus Factor 80 date in the normal
course. 29. In January 2009 Ms. Beaton approached Anne-Marie Carruthers, a nursing manager at HRC, and inquired about the possibility of taking a leave of absence. Ms. Beaton specifically
said that the purpose of this request was to enable her to access Surplus Factor 80. Ms. Carruthers responded that it would not be possible to approve any leave requests that extended
beyond March 31, 2009, because this was the date of the facility’s closure.
-14 -30. Ms. Beaton did not pursue the leave request. In the event, however, she was not surplussed in February 2009, and continued in active service until the end of March. This was
sufficient to enable her to reach her Surplus Factor 80 date, with bridging option. [4] Relevant provisions of the collective agreement are: Article 20 – Employment Stability 20.2.2
Where a lay-off may occur for any reason, the identification of a surplus employee in an administrative district or unit, institution or other such work area and the subsequent redeployment,
displacement, lay-off or recall shall be in accordance with seniority subject to the conditions set out in this article. 20.1.2.1 where a surplus employee has been identified in accordance
with this Article, the Employer shall advise him or her in advance of providing notice of lay-off pursuant to Article 20.2.1. such advice shall be provided in writing, ten (10) working
days in advance of formal notice of lay-off. The purpose of this ten day period is for the employee to consider his or her options, as applicable, under Article 20.2 (Pay in Lieu). 20.1.2.2
On or before the end of the ten day period described in Article 21.1.2.1 above, the employer shall advise the Employer, in writing, of his or her decision either: (a) to exercise rights
under Article 20.2; (b) to remain employed during the six month notice period for possible redeployment or displacement pursuant to Articles 20.3 and 20.4 respectively. 20.10.1 In the
spirit of co-operative attempts to create training and employment opportunities, the parties agree to the following full time unpaid leaves which will be advertised widely to employees
and granted subject to local operating requirement: (a) Extended Educational Leave: The Employer agrees to provide extended education leave, without accumulation of credits, for period
of a minimum of one (1) school year; (b) Family Leave: an employee at his or her option shall be entitled to a leave of absence without accumulation of credits, of up to one (1) year
for care of a dependent person. Article 24 – Leave of Absence 24.01 An employee may request a leave of absence without pay and without accumulation of credits. A Deputy Minister shall
not unreasonably deny such requests.
-15 -Article 80 – Term of Agreement 80.01 This Agreement covers the period from January 1, 2009, until December 31, 2012. The effective date of any changes to the term of the Central
Collective Agreement from the previous Central Collective Agreement, unless otherwise indicated, shall be February 26, 2009. This Central Collective Agreement shall continue automatically
thereafter for annual periods of one (1) year each unless either party serves notice on the other in writing that it wishes to bargain for a new Central Collective Agreement in accordance
with the Labour Relations Act, 1995, and the Crown Employees Collective Bargaining Act, 1993. Appendix 17 It is agreed that the Factor 80 Program will be extended to December 31, 2012
for eligible employees. To be eligible the employee must have been laid off before December 31, 2012: Because he or she had not been assigned to a permanent position within his or her
six month period subject to and in accordance with Article 20.3 (Redeployment) or because he or she had accepted and was assigned into a temporary vacancy in accordance with Article
20.8 (Temporary Vacancies), but had not obtained an assignment to a permanent vacancy within his or her notice period’ AND Because, failing Redeployment to a permanent assignment, he
or she has exhausted all of his or her displacement rights pursuant to Article 20.4 (Displacement); AND If applicable, because failing Redeployment and Displacement, he or she had accepted
an available conditional assignment, but the Employer determined that the employee did not meet the qualifications for the position after retraining during the notice period pursuant
to Article 20.12 (Conditional Assignments). The Plan sponsors agree to take steps to amend the OPSEU Pension Plan in an expeditious manner to provide for the extension of the Factor
80 window for those employees as described herein. This arrangement meets the requirements of the OPSEU Pension Plan, including compliance with legislation governing the OPSEU Pension
Plan. This arrangement is contingent on Revenue Canada approval. The Employer confirms that any costs arising out of the extension of the Surplus Factor 80 Program to the employees covered
by this collective agreement shall be exclusively borne by the employer. No costs shall accrue to the members’ share of the fund as a result of the extension of the Surplus Factor 80
program to December 31, 2012.
-16 -[5] The Union noted in its opening statement that all of the grievances have one common feature and that is that the grievor wanted to reach factor 80 in order to receive an unreduced
pension and their only means of achieving that desire was to obtain a leave of absence in order to extend their service. [6] The six grievors from RRC were surplussed on January 15,
2009, a date that happened to fall between the expiry of the old collective agreement and the ratification of the new collective agreement. As a result of this timing, according to the
Union, the grievors faced two handicaps. The first was their not knowing if Factor 80 would be continued in the new agreement. The second, even if it was, they needed a leave of absence.
[7] The Union noted that while the two grievors from Huronia received their notices of surplus under the old collective agreement, they still did not know what the terms of the new collective
agreement would provide to assist them to achieve Factor 80. [8] If these grievances are allowed to proceed on the merits, it will be the Union’s position that the grievor’s should have
been able to exercise the same options that would have been available to them had the notices not been issued in this hiatus period. They would have been given options that included
seeking leaves of absence in order to bring them within the Surplus Factor 80 program. They were entitled to have been given fulsome information about all available choices including
seeking additional leaves of absence. Further, the grievor were not given accurate information regarding the availability of leaves of absence and they were significantly prejudiced
by the Employer’s failure. Additionally, the grievors were treated differentially from others who sought and obtained the necessary leaves of absence to their detriment. Finally, Ms.
Donovan’s leave of absence request was improperly denied and based on inappropriate considerations including her initial consent to take part in the variable surplus date option. EMPLOYER’S
PRELIMINARY MOTION [9] Ms. Munn, for the Employer, submitted that even in the event that all of the facts as set out in the Union’s particulars are correct, no prima facie case has been
established and
-17 -the grievances should be summarily dismissed. In the event that the grievances are not dismissed on this basis, the Employer reserved the right to challenge the facts as set out.
[10] The Employer urged that the Union’s particulars lack one vital component necessary to litigate these grievances and that is specific violations of the collective agreement. It was
urged that this absence leaves this Board with no alternative but to dismiss the grievances preliminarily. While it was conceded that unfair treatment was alleged, that contention is
not sufficient ground for this Board to take jurisdiction of these grievances. [11] The Employer noted that the Union did refer to Appendix 9 and Appendix 17. Appendix 17 sets out who
is eligible for Surplus Factor 80 and Appendix 9 is the provision regarding pension bridging. The Union conceded that there has been no violation of Appendix 17 and that the grievors
could not have bridged to Surplus Factor 80 even if they were given the maximum of two years leave of absence set out in Appendix 9. The Union failed to cite any other provision of the
collective agreement that would have made the grievors eligible for Surplus Factor 80. Accordingly, there is no violation of any provision of the Collective Agreement and therefore there
is no prima facie case. [12] It was the Employer’s contention that the Board’s long standing jurisprudence reveals that the Board’s function is not to dispense fairness but to interpret
and apply the terms of the Collective Agreement. In this case, there is no violation and therefore the grievances should be dismissed. [13] The Employer relied upon Re OPSEU (Anthony
et al.) and Ministry of Labour, GSB No. 1999/1977 (Abramsky); Re OPSEU (Wong) and Ministry of Government Services, GSB No. 2010/0756 (Dissanayake); Re OPSEU (Halsall) and Ministry of
Agriculture, Food and Rural Affairs GSB No. 2007/1045 (Briggs); Re OPSEU (Seguin et al.) and Ontario Science Centre GSB No. 2010/1205 (Briggs) Re OPSEU (May et al.) and Ministry of Community
Safety and Correctional Services GSB No. 2001/1151 (Abramsky); Re OPSEU (Sutherland) and Ministry of Labour GSB No. 2006/0519 (Dissanayake); Re OPSEU (Faulkner) and Ministry of Community
Safety and Correctional Services GSB No. 2006/2093 (Petryshen); Re OPSEU (Dobroff et al.) and Ministry of Environment GSB No. 2003/0905 (Dissanayake); and Re OPSEU
-18 -(Couture et al.) and Ministry of Government Services GSB No. 2008/3329 (Dissanayake). [14] It was the Employer’s view that in large measure, these grievances are based on a “me
too” claim. That is to say, the Union asserts that others were given a leave of absence and therefore a failure to grant a leave of absence to the grievors constitutes a violation of
the collective agreement. That claim is being made even by grievors who did not ask for a leave of absence at the time. The Board has considered such “me too” claims in the past and
has consistently rejected such assertions. What happened to other employees during this time is irrelevant to the issue of the grievors’ collective agreement entitlements. [15] The Employer
noted that in this matter the Union will contend that the grievors should have been allowed to exercise the same options that would have been available to them had the notices not have
been given during the hiatus period. Simply put, there are no facts upon which this Board can conclude that this did not occur. Surplus Factor 80 was available under the old and the
present collective agreement. [16] The Employer also submitted that despite the Union’s view that the grievors should have been given more information regarding leaves of absence options,
there is nothing in the collective agreement that entitles them to this. Again, the absence of a specific collective agreement violation leaves this Board with no alternative but to
dismiss the grievances. The same argument prevails regarding the Union’s assertion that the grievors should have received more information about the availability of leaves of absence.
[17] The Union has taken issue with the differential treatment of grievors as between Huronia Centre and RCC. Again, it was the Employer’s view that any differential treatment does not
provide sufficient grounds for this Board to take jurisdiction over the grievances. The Union is actually attempting to have this Board deal with the issue of eligibility for pension
and that question is not one that can be addressed by this Board. The grievors saw that others were entitled to pension and want identical treatment. To entertain such a request is wrong.
[18] Accordingly, the Employer requested all grievances be dismissed.
-19 -UNION SUBMISSIONS [19] Mr. Bohuslawsky, for the Union began by citing the sections of the collective agreement that were violated. Specifically those are Article 20.1.2.1 (consideration
of options); Article 20.10.1 (voluntary leaves); Article 24 (leave without pay); Article 80.1 (term of agreement; Appendix 9 (employment stability) and Appendix 17 (factor 80 program).
[20] The Union did not take issue with the Employer’s view of the Board’s jurisprudence. Rather it suggested that this is not the only area of the law to consider in determining this
preliminary motion. Various provisions in the collective agreement oblige the Employer to exercise its discretion fairly and in good faith. [21] Taking each of the Union’s alleged violations
in turn, the Union suggested that Article 20.1.2.2 has been violated because the Employer is obliged to allow employees ten days to make a decision regarding the exercising of their
rights flowing from Article 20. In this case, the grievors were either given incomplete or, in some instances, incorrect information regarding their options. Further, the grievors were
treated differently from other similarly situated employees who were, as set out in the particulars, either given correct information when that information was requested, or were contacted
at the Employer’s instigation with guidance as to how best to navigate through the Employment Stability provisions. This disparate treatment is a further breach of the collective agreement.
[22] Article 24.2 provides that leaves of absence without pay and without accumulation of credits may be requested. According to the Union, the Employer cannot unreasonably deny such
requests. The standard of reasonableness requires a genuine exercise of decision-making power though a consideration of the merits of the reasons the request was made. A bona fide decision
under this provision cannot be based solely on a unilateral employer rule or policy that seems to have occurred in this case. There was a blanket refusal made in advance of any application
for leave and such a refusal is surely no less a breach of the collective agreement than a refusal to an actual request for leaves of absence. Additionally, the same level of inaccurate
or incomplete information was given to these grievors, in contrast to others, regarding certain aspects of leave requests causing the breach to be even more egregious because the very
information some of the
-20 -grievor’s received convinced them that there was no point in applying for a leave in the first instance. The grievors acted on this information to their detriment. Had they been
provided with correct information they would have applied and they would have had more opportunity to reach Surplus Factor 80. This is particularly offensive when it is recalled that
at the very time the grievors were being told they could not get a leave of absence, such leaves were being offered and granted to others. In one case, the same manager was granting
leaves to some and denying the grievors the opportunity for leave. Indeed, at RCC thirteen leaves of the leaves that were approved in 2008 and 2009 lasted beyond March 31, 2009. [23]
The Union submitted that all of these same facts reveal a breach of Article 20.10 of the collective agreement. This article provides for full time unpaid leaves for extended educational
leave and for family leave for up to one year. It was conceded that such leaves are subject to local operating requirements but the particulars reveal that at least one grievor was told
that leaves of absence for education were no longer available, again making clear that there was no need to apply. The Employer violated this provision by its failure to advertise such
opportunities and its blanket refusal to consider requests. This article must be interpreted as a positive obligation on the Employer to advise all surplussed employees of the availability
of such leaves. Once again the particulars make apparent that the grievors were treated differently than others because at least one other employee got a leave of absence that was categorized
as “educational – community placement.” [24] The Union turned to the issues raised by the timing of these events. Some grievors were surplussed in January of 2009 – that is to say, in
the gap between collective agreements while others were surplussed prior to the expiry of the 2008 collective agreement. The rights available to the grievors to make an informed decision
based on all relevant information about options should not be diminished simply because they were surplussed in the hiatus between the old and new collective agreements. Nor should they
be diminished because the surplussing process straddled two collective agreements. [25] Mr. Bohuslawsky stated that the purpose of retroactivity is to make sure that contractual rights
are not subject to the vagaries of chronology. If that basic principle is accepted then
-21 -it follows that the grievors should have been put back in the same positions they should have been in had there been no interval in collective agreement coverage. As such they should
have been given an opportunity to make an informed decision based on all pertinent information regarding their options. [26] The Union said that the Employer’s application of retroactivity
did not cure the prejudice suffered by the grievor when they made elections based on incomplete or inaccurate information. The Employer’s duty to apply retroactivity should have provided
a chance to the grievors to revisit options to get to the extended Surplus Factor 80 under the new collective agreement. This opportunity would have given the grievors a chance to ask
for and be considered for an additional leave of absence. [27] The Union conceded that there are exceptions to the application of retroactivity. The presumption of retroactivity can
be rebutted by clear and specific language excluding it or in the event that its application would lead to impractical, unfair or unintended results. There is no such excluding language
in the instant case and accordingly retroactivity would apply to Surplus Factor 80. It is difficult in the context of a motion asserting no prima facie case to determine if any of the
exceptions apply in this instance. Without a formal evidentiary record, this Board might be unable to make such a determination. [28] Turning to the grievance of Ms. Mary Donovan, it
was noted that she was the only grievor at either location to apply for a leave of absence. She did so on January 26, 2009 and shortly thereafter it was denied. In the event that this
Board finds that the submissions made on behalf of all grievors are insufficient to dismiss the motion, surely it must be found that the individual refusal of the Leave of Absence request
was unreasonable. Other employees who had registered for variable surplus dates were allowed to change plans. There is no valid business reason why the Employer could not have similarly
allowed Ms. Donovan to rescind her surplus dates. Being on the variable surplus dates list and being allowed a leave of absence were not mutually exclusive. Further, the closing of the
RCC on March 31. 2009 was relied upon by the Employer for denial of the grievor’s leave request notwithstanding the fact that the closure date did not stop others from getting a leave
of absence which extended far beyond that date.
-22 -[29] The Union relied upon a memorandum sent on March 30, 2009 noting that Surplus Factor 80 had been extended into the new Collective Agreement. The memo noted that “as the Surplus
Factor 80 program was set to expire on December 31, 2008, it is possible that people who were surplussed and would otherwise have been able to access their Surplus Factor 80 date were
not given that option.” It is apparent from this communication that some employees were given the opportunity to revisit the issue. The grievors were all on salary continuance or were
available for assignment. They could have and should have been given this same opportunity. [30] The Union relied upon Re Penticton and District Retirement Service and Hospital Employees’
Union, Local 180 (1977), 16 L.A.C. (2d) 97 (Weiler); Re Durham Memorial Hospital and London District Service Workers’ Union, Local 220 (1991), 19 L.A.C. (4th) 320 (Kaufman); Re Canada
Post Corporation and Canadian Union of Postal Workers (Sawatzky) (2010), 197 L.A.C. (4th) 180 (Peltz); Re The Crown in Right of Ontario (Ministry of Community Safety and Correctional
Services/Ministry of Children and Youth Services) and OPSEU (Union Grievance) (2010), GSB#2009-0167 (Harris); Re The Crown in Right of Ontario (Ministry of the Attorney General) (Group
Grievance) (2002), GSB # 1455/00 (Abramsky); Re The Crown in Right of Ontario (Ministry of Training, Colleges and Universities) and OPSEU (Morissette) (2009), GSB#2008-3832 (Dissanayake);
Re The Crown in Right of Ontario (Ministry of Health and Long Term Care and OPSEU (Thurman) (2002), GSB#0698/01 (Johnston); and Re L/3 Communications/Spar Aerospace Ltd. and International
Association of Machinists and Aerospace Workers, Northgate Lodge 1579 (2004), 127 L.A.C. (4th) 225 (Wakeling). EMPLOYER RESPONSE SUBMISSIONS [31] The Employer urged that the Union has
significantly overstated the obligations of the Employer under Article 20. The Employer claimed that given the Union’s view that the Employer has to provide information of all options
upon surplus, it would have to provide information about any provision of the collective agreement that might be affected by surplussing – such as parental leave. The Union went so far
as to argue that
-23 -the Employer must provide information to employees prior to them being surplussed. That view is not sustainable. [32] Further, while the collective agreement certainly provides
that employees can request leaves of absence, there is nothing in Article 20 that obliges the Employer to inform surplussed employees of their right to request Leave of Absence. Such
a view puts the burden of information upon the Employer but that is not a principle that is grounded by any provision of the collective agreement or in any case law provided to this
Board. [33] Ms. Munn contended that the obligation found in Article 20.10 is restricted to the need to advertise leaves widely. There is no assertion from the Union that leaves were
not advertised. The Union has taken the position that the Employer should have advised the grievors of these leaves. That view cannot be upheld. Article 20.10 is not an obligation to
inform individuals of leaves – merely the agreement to “advertise widely”. There is no express or inferential obligation to provide that individual information. [34] Regarding the matter
of differential treatment, the Employer took issue with the Union’s assertion that once information was given to one or two employees it must be provided to all. This aspect of the Union’s
argument is nothing more than a “me too” claim which this Board has said is beyond its jurisdiction. [35] The Employer said that the Union’s position that the dissemination of incorrect
information to the grievor’s is a violation of the collective agreement. There is no collective agreement provision that obliges managers to answer questions or provide information that
has been requested. It ought not to be forgotten that the question posed was whether the grievors would be entitled to Surplus Factor 80. That question was beyond the knowledge and capability
of managers. [36] Ms. Munn disputed that there was any “blanket refusal” for requests for leaves of absence. It is to be recalled that, according to the facts, a number of people who
requested leaves of absence received them. Further, the information that was given to the grievors at the time cannot be found to amount to a denial of a request for a leave of absence.
Indeed, on the facts that are set out in the particulars, only one grievor actually requested a leave of absence. In the absence of a request, there is no obligation to consider and
the Employer cannot be said to have been unreasonable. If the discussions set out in the
-24 -particulars were denials of leaves of absence requests then all of the evidence in this area will have to be called and subjected to cross-examination. [37] The Employer asserted
that the Union’s characterization of the providing of incorrect information as a management right infraction is wrong. The fact that incorrect information may have been given to some
of the grievors does not establish bad faith or discrimination. This contention of the Union is tantamount to a general duty of care argument. The Board has rejected that view in the
absence of a contravention of the collective agreement. [38] Ms. Munn noted that the Union would have this Board find that the ability to apply for a leave of absence to get to Surplus
Factor 80 is a right under the collective agreement. It urged that the leave of absence provision found at Article 24 is a mechanism intended to allow employees to get to Surplus Factor
80. That is no such provision in the collective agreement. The Union is seeking a right that does not exist. [39] Regarding the Union’s arguments regarding the retroactivity provisions,
it was the Employer’s view that there is no requirement to provide information to request a leave of absence irrespective of which collective agreement is considered. The Union said
that there should have been some opportunity to reassess options once the new collective agreement was ratified. However, as conceded by the Union, the rights of the grievors did not
change from one collective agreement to the next and therefore there was no obligation to revisit options. DECISION [40] The Employer has brought forward its motion that, assuming that
facts alleged in the particulars to be true, the grievances must be dismissed because there is no prima facie case. I disagree. [41] In Re Crown In Right of Ontario and OPSEU (Union)
GSB#2009-0167 (supra) Vice Chair Harris was asked to determine if the Employer’s failure to allow compensating time off for overtime worked was a violation of the Collective Agreement.
In a decision
-25 -dealing with an Employer objection regarding the Board’s jurisdiction to hear the matter, the Vice Chair reviewed the Board’s jurisprudence. He said, at para 44: The foundation
case often relied upon regarding the Board’s jurisdicition to review decisions of management is Bousquet 0541/90 (Gorsky). In Ashley 2001-1700 (Abramsky) the Board commented on Bousquet
as follows at page 14: Consequently, under Bousquet, supra, the jurisdiction of the Board to review the Employer’s exercise of a right reserved to management is derivative – it depends
on the existence of a provision in the collective agreement which might be adversely affected by management’s action. The Board’s jurisprudence is summarized in Sutherland, 2006-0519
at paragraph 16 as follows:The principle that results from the above noted authorities (see also Re McIntosh, 3027/92 (Dissanayake) and Re Boulet, 1189/99 (Brown) is that, for the Board
to seize jurisdiction, there must be an allegation that the employer’s exercise of management rights in a contravention or abridgement of a substantive right under the collective agreement.
An “abridgement of a substantive right in the collective agreement is no different than a provision of a collective agreement being adversely affected. The test in Bousquet set out above
is still valid. This view is underscored in paragraph 19 of Sutherland: The authorities reviewed above establish two propositions with respect to CWW arrangements. First, that article
10.1 does not impose any obligation on the employer to enter into a CWW arrangement with any employee. Second, article 10.1 “…does not provide for a discretion to be exercised by the
employer. Rather, it simply provides a mechanism for the parties to mutually arrive at “other arrangements” vis a vis a variable week”. See, the quotation from Re Algerson et al, set
out at p. 7 (supra). It follows, therefore that the employer’s decision to negotiate or not negotiate a CWW arrangement is a matter of a management right to “among other things, manage
its business as set out in article 2”. (Re Emmett), (supra), at p. 11). Therefore this Board has no jurisdiction to review the employer’s exercise of a management right, in the absence
of a claim that such exercise (in this case the non-exercise) of management rights affects a right of the grievor under the collective agreement. Since the union has not made such a
claim. Nor has it alleged bad faith. In the circumstances the Board lacks jurisdiction. Therefore, the employer’s first motion succeeds. (emphasis added) Here the Union says that a number
of rights in the collective agreement have been adversely affected, including the right to local processes and the right to at least ask for CTO. In the cases put before me, the grievor’s
were at least afforded the opportunity to request a compressed workweek or CTO. In the matters before me, there are real and substantive differences between the parties that arise out
of the collective agreement. It is within the Board’s jurisdiction to consider and determine those differences. The collective agreement includes provisions that cover the matters raised
by the Union. The Board has the jurisdiction to decide whether those provisions encompass the rights asserted in the grievances. It is a matter of contract interpretation, a fundamental
responsibility of the Board. Put differently, the dispute arises expressly or inferentially out of the collective agreement. That was not the case in Belanger, supra, where there
-26 -was no article in the collective agreement dealing with the provision of uniforms to employees. [42] This jurisprudential review is most helpful and applicable to the matter at
hand. The grievors have alleged that they have been treated in a fashion that is contrary to a variety of provisions of the collective agreement. Specifically it was said that their
ability to achieve Surplus Factor 80 was barred due to the timing of their surplus, the timing of the renewal of the collective agreement and/or the failure of the Employer to retroactively
offer certain options regarding Surplus Factor 80 once the new collective agreement was ratified. Further, the Union urged that the Employer’s engaged in bad faith by telling the grievors
that there was no point in attempting to utilize their right under the collective agreement to seek a leave of absence which would allow them to reach Surplus Factor 80 with bridging.
[43] Like in the case before Vice Chair Harris, “the collective agreement includes provisions that cover the matters raised by the Union” in the matters at hand. Further, the Board does
have the “jurisdiction to decide whether those provisions encompass the rights asserted in the grievances”. It is a matter of contract interpretation, a fundamental responsibility of
the Board. [44] Many of the arguments put forward by both parties in this preliminary motion are more properly matters to be considered in the ultimate determination as to whether these
grievances should succeed. It will be a matter of contract interpretation as well as whether the Employer has acted in bad faith. [45] The Employer contended that some of the grievances
are nothing more than “me too” claims. Once the evidence is heard, that may be found to be true. I am not prepared to make that finding at this point in the proceedings. [46] According
to the particulars the grievors were told by various managerial authorities not to “bother” seeking a leave of absence. The Employer submitted that on the facts set out in the particulars,
there was no denial of a request for a leave of absence to any grievor other than Ms. Donovan. Accordingly there can be no consideration of whether the Article 24 has been violated.
Further, the Employer said that just because information given by a manager was not correct does not establish bad faith or discrimination. While I am certainly not going to decide in
this preliminary motion as to whether there was an unreasonable denial of leave of absence requests, it seems to me that the Employer cannot advise employees that there is no point in
making a request for a leave of absence in accordance with Article 24 and then urge this Board to say there is no prima facie case or bad faith because those employees took their managers
at their word. I do not accept that view. [47] It may be that there were legitimate reasons to grant some but not all employees a leave of absence. Further, I understand that the Employer
takes the position that there is no
-27 -absolute or defined right to a leave of absence for surplussed employees to allow them to bridge to Surplus Factor 80. However, these are not matters to be decided at this time.
[48] The Employer also rejected the Union’s assertion that there was a “blanket” rejection of requests for leaves of absence. I understand that claim given that, by the Union’s own particulars
some employees requested and obtained leaves of absences. But the fact that some obtained leaves of absence does not diminish the fact that the grievors were told leaves of absences
“were not being entertained for anyone” and then acted on the direction they received to their detriment. [49] Accordingly, the Employer’s motion is denied. I ask counsel to contact
the Board to set up a conference call to discuss the most expedient method of litigating these matters. Dated in Toronto this 8th day of March 2013. Felicity D. Briggs, Vice-Chair
- 4 -
Available for Assignment. The grievors were required to select an option not later
than January 29, 2009. Mrs. Fournier, Mr. Moore and Ms. Dodds all elected
Option #3, Remain Available for Assignment.
13. The grievors who had registered for Variable Surplus Dates (Lori Egan, Elona
Morley, Mary Donovan) were given two options: Option #1 – Pay-in-Lieu;
Option #2 – Pay-in-Lieu, Salary Continuance. The grievors were required to
select an option not later than January 29, 2009. Ms. Egan, Ms. Morley, Ms.
Donovan all elected Option #2, Pay-in-Lieu, Salary Continuance.
14. At the time the surplus notices were issued, none of the grievors would have
qualified for Surplus Factor 80 in the normal course, including with the bridging
option, even assuming the programs would ultimately be made available again
under the new collective agreement then being negotiated. In any event, the
grievors were not given the option in their surplus notices of participating in
Surplus Factor 80.
15. At the time the surplus notices were issued, the grievors were not advised that
they may be eligible for Surplus Factor 80, with the bridging option (assuming
these programs would be made available again under the new collective
agreement), if they obtained a service extension in the form of an additional
unpaid leave of absence.
16. At the time the surplus notices were issued, the grievors were not aware that
Ms. Alison Kaczan (see below) had applied for, and been granted, a leave of
absence, or that this could be done in an effort to achieve eligibility for Surplus
Factor 80. With the exception of Ms. Mary Donovan (see below), none of the
grievors applied for a leave of absence.
17. All the grievors received a notice of layoff dated January 30, 2009, in
accordance with Article 20B.2.1 of the collective agreement.
18. In the case of those grievors who elected Option #2 (Ms. Egan, Ms. Morley,
Ms. Donovan), the notice of layoff stipulated that their last day of work would be
July 29, 2009.
19. In the case of those grievors who elected Option #3 (Mrs. Fournier, Mr.
Moore, Ms. Dodds), the notice of layoff stipulated that they would be notified if
an assignment opportunity arose. The notice further stated that if no assignment
opportunity arose, the grievors would be advised if they were able to exercise
displacement rights. None of these grievors were offered an assignment
opportunity or were able to exercise displacement rights.
20. By letter from RRC dated May 1, 2009, Mrs. Fournier, Mr. Moore and Ms.
Dodds were advised that no displacement opportunities were available, and that
their notice period would run until July 29, 2009.
- 5 -
21. On March 30, 2009, Kevin Sawicki, Acting Director of Union-Management
Relations for the Ministry of Government Services, issued a memo on the
Extension of Surplus Factor 80 under the 2009-2012 Central Collective
Agreement.
22. After ratification of the 2009-2012 Central Collective Agreement on February
26, 2009, the Surplus Factor 80 program was made available retrospectively to
those employees who had received surplus notice on or before December 31,
2008. Approximately 28 employees were affected, and those employees were
contacted by letter and given the option of accessing Surplus Factor 80.
23. With respect to this retrospective application of Surplus Factor 80, employees
who had originally opted for the lump-sum Pay-in-Lieu option were deemed to
have resigned from the Ontario Public Service, and were not given an opportunity
to change their decision. Those employees who opted for the Pay-in-Lieu, Salary
Continuance option were deemed to be active employees on the payroll, and were
given the option to access Surplus Factor 80.
24. None of the approximately 28 employees who were affected at this juncture
required an additional leave of absence to reach their Surplus Factor 80 dates.
25. After ratification of the 2009-2012 Central Collective Agreement, the RRC
human resources department distributed two memoranda to surplussed
employees. The first was entitled “Surplus Factor 80: Employees who received
Notice of Lay Off on or before February 25, 2009” [the “Surplus Factor 80
Memorandum”]. The second was entitled “Factor 80 Retirement Under the
Pension Bridging Option” [the “Bridging Memorandum”].
26. For example, Diane Jackson was one of the employees found to be eligible for
Surplus Factor 80. She received notice of surplus in November 2008 and had a
Surplus Factor 80 date of May 2010. After ratification of the 2009-2012 collective
agreement, she was notified by letter and phone call from the RRC human
resources department of a meeting with respect to her options on being
surplussed. She was also provided with a copy of the Surplus Factor 80
Memorandum. At the meeting she was advised that she was eligible to participate
in the Surplus Factor 80 program which had been extended under the new
collective agreement. It was further stated that she could opt between termination
payments or being “bridged” to an unreduced pension under Surplus Factor 80, in
which case she would be “gone but not off the books”. Ms. Jackson opted for the
latter.
27. After ratification of the 2009-2012 Central Collective Agreement, the grievors
were not given an opportunity to reconsider options or to access Surplus Factor 80
by means of seeking an additional unpaid leave of absence.
28. The grievors would have elected to pursue eligibility for Surplus Factor 80,
through an additional unpaid leave of absence, had this been given to them as an
option at any point or had they otherwise been aware that this could be done.
- 6 -
29. RRC maintained a list of the employees who were granted leaves of absence
without pay during the relevant times, the dates of the leaves, and the reason for
the leaves.
Individual Grievors
Elona Morley
30. In or about February 2008, Ms. Morley had a discussion with Sharon Murphy-
Healey, a manager at RRC, about the Centre’s anticipated closure in March 2009.
Ms. Morley asked whether it might be possible to arrange a leave of absence until
July 2009, as this would enable her to qualify for an unreduced pension under
Surplus Factor 80. Ms. Murphy-Healey replied: “No, once Rideau is closed [i.e.
in March 2009], you are done. They will not do that”.
31. In June or July 2008, Ms. Morley again raised the possibility of applying for a
leave of absence, this time with Connie Coville, a manager at RRC. Ms. Morley
indicated that the purpose of taking a leave would have been to allow her to reach
Surplus Factor 80. Ms. Coville stated: “They are not giving leaves”.
32. In October or November 2008, Ms. Morley spoke with Doug Noble, a
consultant in the human resources department of RRC. Mr. Noble confirmed that
Ms. Morley was approximately six months short of reaching Surplus Factor 80,
and said that “there was nothing he could do to help her”. Mr. Noble also stated,
referring to the ongoing collective agreement negotiations: “We have no idea if it
[i.e. Surplus Factor 80] will be back in”.
33. Ms. Morley’s Surplus Factor 80 date (with bridge) would have been July 25,
2012. To qualify for an unreduced pension under Surplus Factor 80, she would
have required an additional leave of absence of six months.
Sandra Fournier
34. On or about January 15, 2009, Mrs. Fournier spoke with manager Connie
Coville, who advised her that she would “definitely” be eligible for Surplus
Factor 80.
35. On January 16, 2009 Mrs. Fournier spoke with Doug Noble in the RRC
human resources department. Mr. Noble advised that Ms. Fournier was 45 days
short of reaching Surplus Factor 80.
36. Mrs. Fournier’s Surplus Factor 80 date (with bridge) would have been March
16, 2012. To qualify for an unreduced pension under Surplus Factor 80, she
would have required an additional leave of absence of 45 days.
Lori Egan and Mary Donovan
- 7 -
37. In November or December 2008, Ms. Egan and Ms. Donovan spoke to Faye
Code, Manager of Human Resources at RRC, to inquire about their options in
respect of the Centre’s pending closure. Ms. Code advised them that they would
not qualify for Surplus Factor 80, even if it were made available under the new
collective agreement, because they did not have the requisite years of service. At
this meeting, based on these discussions, that Ms. Egan and Ms. Donovan chose
to register for Variable Surplus Dates.
38. In the latter part of January 2009, after they had received notice of surplus,
Ms. Egan and Ms. Donovan again spoke with Ms. Code. They had heard of the
leave of absence granted to Alison Kaczan (see below), and wanted to know
whether it was in fact possible to obtain a leave in order to reach Surplus Factor
80. Ms. Code confirmed that other employees had been granted additional leaves
of absence and were thereby able to access Surplus Factor 80, with the bridging
option. In response to a question from Ms. Code, both Ms. Egan and Ms.
Donovan indicated that they would have applied for a leave of absence, had they
known that this was possible.
39. Subsequent to this second discussion in January 2009, Ms. Egan did not
formally apply for a leave of absence. Ms. Donovan did apply, but her request
was declined.
40. Ms. Donovan’s written request for a ten-month leave of absence was dated
January 26, 2009, and stated that the leave was sought for the purpose of enabling
Ms. Donovan to reach Surplus Factor 80. By letter dated January 29, 2009, Ms.
Deborah Mitchell, Facility Manager, turned down the request. The reasons given
were that Ms. Donovan had “voluntarily register[ed] for the Variable Surplus
Dates and receiv[ed] notice in accordance with Article 20B.1.2.1 of the OPSEU
Collective Agreement on January 15, 2009 . . . combined with closure
announcement that Rideau Regional Centre will be closed by March 31, 2009”.
41. Ms. Egan’s Surplus Factor 80 date (with bridge) would have been August 27,
2012. To qualify for an unreduced pension under Surplus Factor 80, she would
have required an additional leave of absence of seven months.
42. Ms. Donovan’s Surplus Factor 80 date (with bridge) would have been
November 17, 2012. To qualify for an unreduced pension under Surplus Factor
80, she would have required an additional leave of absence of ten months.
Nancy Dodds
43. In late 2008, Ms. Dodds spoke with Noreen Barnett, Director of Residential
Services at RRC about the possibility about applying for a leave of absence. Ms.
Barnett stated that leave requests were not being entertained for anyone, because
residents were being transferred to group homes, and the presence of staff was
necessary to ensure proper care of the residents.
- 8 -
44. Ms. Dodds’ Surplus Factor 80 date (with bridge) would have been March 3,
2012. To qualify for an unreduced pension under Surplus Factor 80, she would
have required a leave of absence of 32 days.
45. Ms. Dodds received WSIB benefits for 30 days during her notice period,
which increased her amount of service credits by a corresponding amount. If that
period of WSIB eligibility is taken into account, she would have required a leave
of absence of two days to qualify for an unreduced pension under Surplus Factor
80.
46. Ms. Dodds remained on-call at the RRC as the Search and Rescue Master, on
a volunteer basis, until March 31, 2009. The union reserves the right to present
and argue the issue of whether this two-month period constituted active
employment in computing years of service for the purposes of determining
Surplus Factor 80 entitlement.
Brian Moore
47. Mr. Moore had several discussions with Linda Code, a consultant in the RRC
human resources department, regarding his eligibility for Surplus Factor 80. In the
first discussion, Ms. Code advised Mr. Moore that he did qualify for Surplus
Factor 80. In the second discussion, which took place when Mr. Moore met with
Ms. Code to review his exit options, Ms. Code advised that in fact Mr. Moore fell
short of meeting the Surplus Factor 80 requirements by 30 days. Mr. Moore asked
about the possibility of applying for time off, and Ms. Code replied: “It is not
happening”, i.e. no leaves of absence were being granted. About two weeks later,
Ms. Code further clarified Mr. Moore’s status, by indicating that he would fail to
meet Surplus Factor 80 by five months, since he had previously taken parental
leave and was not permitted to pay back those monies to reestablish the credits in
his pension plan.
48. In addition, Mr. Moore raised the possibility of applying for a leave of
absence with several supervisors, including Karen Reust, Marion Walker, and
Marion Steele. Mr. Moore recalls that the essence of these discussions was that it
was a “no-go deal”, that is, applications for leave were no longer being
entertained.
49. Doug Noble of the RRC human resources department similarly advised Mr.
Moore that leaves of absence for education, placement or other purposes were no
longer available.
50. Mr. Moore does not recall the date of these discussions, i.e. whether they
occurred before or after he was given notice of surplus.
51. Mr. Moore’s Surplus Factor 80 date (with bridge) would have been May 25,
2012. To qualify for an unreduced pension under Surplus Factor 80, he would
have required an additional leave of absence of five months.
- 9 -
Other Employees
Alison Kaczan
52. At the relevant times Boris Kaczan and his spouse Alison Kaczan were both
employees of RRC. Ms. Kaczan was employed as a Residential Counsellor. In
late 2008, during a conversation with Ruth Shirley, consultant in RRC’s human
resources department, Mr. Kaczan said in relation to the pending closure: “Too
bad we can’t get a leave of absence past March 31, 2009”. Ms. Shirley replied:
“That’s not true, you can. People have done it”.
53. After this conversation with Ms. Shirley, Mr. Kaczan suggested to Ms.
Kaczan that she apply for a leave of absence as a means of reaching Surplus
Factor 80. On January 8, 2009 Ms. Kaczan applied for a six-month leave of
absence, and this request was orally granted on January 9, with written
confirmation from RRC’s Acting Administrator on Monday January 12, 2009.
54. RRC recorded the reason for Ms. Kaczan’s leave as being External Work
Experience.
55. But for the decision to grant a leave of absence, Ms. Kaczan would have been
among the employees designated to receive surplus notices on January 15, 2009,
and would have fallen short of her Surplus Factor 80 date, even with the bridging.
Her manager, Connie Coville, called during the week to determine whether she
wished to be surplussed or to proceed with the leave of absence. Ms. Kaczan
confirmed her wish to be placed on leave. Ms. Kaczan’s Surplus Factor 80 date
(with bridge) is July 2012, and on that date she will qualify for an unreduced
pension.
56. Ms. Kaczan had not registered for Variable Surplus Dates.
Coreen Broadbent
57. Coreen Broadbent was employed at the RRC as a Residential Health Nurse.
As of February 2009 she had not received a notice of surplus. At that time, she
made inquiries with RRC’s human resources department to determine if she
would be eligible to bridge to an unreduced pension under Surplus Factor 80.
Doug Noble of the department advised Ms. Broadbent that she could reach
Surplus Factor 80, but that she would have to apply for, and be granted, a leave of
absence. On the basis of this advice, Ms. Broadbent applied for a leave of absence
for the period March 9 to June 28, 2009. The leave was granted on February 18,
2009, on condition that Ms. Broadbent remain available for redeployment in the
Ontario Public Service. (Ms. Broadbent was due to commence work with another
employer on March 17, 2009. However, no redeployment opportunities arose.)
Ms. Broadbent’s leave was subsequently extended by one month.
58. RRC recorded the reason for Ms. Broadbent’s leave as being External Work
Experience.
- 10 -
59. On July 27, 2009 Ms. Broadbent was issued a notice of surplus, which
provided her with four options: Option #1 – Pay-in-Lieu; Option #2 – Pay-in-
Lieu, Salary Continuance; Option #3 – Remain Available for Reassignment;
Option #4 – Surplus Factor 80. Ms. Broadbent was required to select an option
not later than August 11, 2009, and chose Option #4 – Surplus Factor 80.
60. Ms. Broadbent’s Surplus Factor 80 date (with bridge) is May 2012, and on
that date she will qualify for an unreduced pension.
61. In December 2008 Ms. Broadbent registered for Variable Surplus Dates, but
later wrote a letter requesting that her name be taken off the list.
[3] The particulars for the Huronia Regional Centre are as follows:
General Background
1. The grievances allege violations of the following provisions of the 2009-2012
Central Collective Agreement: Article 20.1.2.1 (consideration of options); Article
20.10.1 (Voluntary Leaves); Article 24 (Leave Without Pay); Article 80.1 (Term
of Agreement); Appendix 9 (Employment Stability); Appendix 17 (Factor 80
Program).
2. Prior to their layoffs, which occurred as set out below, the grievors were
employees of the Huronia Regional Centre (HRC). The Centre, operated by the
Ministry of Community and Social Services, provided residential care for persons
with developmental and physical disabilities. At the time of their layoffs, the
grievors were classified as Residential Counsellors, and were members of OPSEU
Local 323.
3. In September 2004 the provincial government announced that HRC would be
closed by March 31, 2009. The final stages of the closure began to be
implemented in or about September 2008.
4. The grievors were members of the OPSEU Pension Plan.
5. Neither grievor signed up for Variable Surplus Dates.
6. The grievors received a notice of surplus dated October 16, 2008, in accordance
with Article 20B.1.2.1 of the collective agreement, together with an explanation
of available exit options.
7. The grievors were given three options: Option #1 – Pay-in-Lieu; Option #2 –
Pay-in-Lieu, Salary Continuance; Option #3 – Remain Available for Assignment.
The grievors were required to select an option not later than October 31, 2008.
Both grievors elected Option #3, Remain Available for Assignment.
- 11 -
8. At the time the surplus notices were issued, the grievors would not have
qualified for Surplus Factor 80 in the normal course, including with the bridging
option, even assuming the programs would ultimately be made available again
under the new collective agreement then being negotiated. In any event, the
grievors were not given the option in their surplus notices of participating in
Surplus Factor 80.
9. At the time the surplus notices were issued, the grievors were not advised that
they may be eligible for Surplus Factor 80, with the bridging option (assuming
these programs would be made available again under the new collective
agreement), if they obtained a service extension in the form of an additional
unpaid leave of absence.
10. At the time the surplus notices were issued, the grievors were not aware that a
leave of absence could be sought in an effort to achieve eligibility for Surplus
Factor 80. The grievors did not apply for a leave of absence.
11. The grievors received a notice of layoff dated October 31, 2008 in accordance
with Article 20B.2.1 of the collective agreement. The notice stipulated that they
would be notified if an assignment opportunity arose. The notice further stated
that if no assignment opportunity arose, the grievors would be advised if they
were able to exercise displacement rights. The grievors were not offered an
assignment opportunity and were not able to exercise displacement rights.
12. By letter from HRC dated January 30, 2009, the grievors were advised that no
displacement opportunities were available, and that their notice period would run
until April 30, 2009.
13. After ratification of the 2009-2012 Central Collective Agreement on February
26, 2009, the grievors were not given an opportunity to reconsider options or to
access Surplus Factor 80 by means of seeking an additional unpaid leave of
absence.
14. The grievors would have elected to pursue eligibility for Surplus Factor 80,
through an additional unpaid leave of absence, had this been given to them as an
option at any point or had they otherwise been aware that this could be done.
Individual Grievors
Dave Nichols
15. In October 2008 Mr. Nichols met with Kathy Johnson of the HRC human
resources department in order to discuss his options upon being surplussed. On
the subject of Surplus Factor 80, Ms. Johnson indicated that “we don’t know
whether it’s going to happen or not [i.e. whether the program would be renewed
in the new collective agreement then being negotiated] so it’s not relevant”. Mr.
Nichols replied that, regardless of whether “it happened or not”, he wanted to be
in the best possible position to remain on payroll and thereby access Surplus
- 12 -
Factor 80 and the bridging option, in the event these programs became available
again under the new collective agreement. Ms. Johnson replied that the “best
thing” for Mr. Nicholas would be to remain available for assignment, and transfer
to Rideau Regional Centre in order to displace a junior employee.
16. On October 16, 2008, in electing Option #3, Remain Available for
Assignment, Mr. Nichols added a signed note to the standard option form. The
note read: “I am exercising this option under duress. It is my position that I am
entitled to elect under the Factor 80 option which is not being offered to me. So as
not to adversely affect my choice any further, I am electing, as above, but I
formerly reserve my right to withdraw this election once my right to elect, under
the Factor 80, is confirmed”.
17. Mr. Nichols met with Ms. Johnson again in April 2009, before the expiry of
his layoff notice at the end of the month. He had heard about the unpaid leave of
absence offered to Sonia Patterson (see below), and asked whether he could be
given the same option as a means of reaching his Surplus Factor 80 date. Ms.
Johnson answered that this was not possible because Ms. Nichols had already
made his election in October 2008.
18. Mr. Nichols’ Surplus Factor 80 date (with bridge) would have been July 5,
2012. To qualify for an unreduced pension under Surplus Factor 80, he would
have required an additional leave of absence of about seven months.
Renée Dufour
19. In October 2008 Ms. Dufour met with Kathy Johnson of the HRC human
resources department in order to discuss her options upon being surplussed. Ms.
Dufour asked Ms. Johnson whether there was anything she could do in order to
reach her Surplus Factor 80 date. Ms. Johnson responded, “You can’t reach your
pension, no matter what”.
20. In the result, Ms. Dufour decided to remain available for assignment, in hopes
that she could eventually transfer to the Smiths Falls facility and displace a junior
employee.
21. On October 16, 2008, in electing Option #3, Remain Available for
Assignment, Ms. Dufour added a signed note to the standard option form. The
note read: “I am exercising this option under duress. It is my position that I am
entitled to elect under the Factor 80 option which is not being offered to me. So as
not to adversely affect my choice any further, I am electing, as above, but I
formerly reserve my right to withdraw this election once my right to elect, under
the Factor 80, is confirmed”.
22. In April 2009, after she had heard about the leave of absence granted to Sonia
Patterson (see below), Ms. Dufour asked Ms. Johnson whether she could be given
- 13 -
the same option, in order to allow her to access Surplus Factor 80. Ms. Johnson
replied that it was too late to exercise such an option.
23. Ms. Dufour’s Surplus Factor 80 date (with bridge) would have been August
22, 2012. To qualify for an unreduced pension under Surplus Factor 80, she
would have required an additional leave of absence of about nine months.
Other Employees
Sonia Patterson
24. Sonia Patterson, a Residential Counsellor, was due to be surplussed in
February 2009, being first or second on the surplus list at that time. Her Surplus
Factor 80 date would have been in August 2009, and she would not have been
eligible for the program in the normal course, even with the bridging option. At
that time, Ms. Patterson was aware that she would not meet the program
requirements, and had no knowledge that it might be possible to access Surplus
Factor 80 by way of an additional unpaid leave of absence.
25. In the first week of February, prior to a notice of surplus being issued, Ms.
Patterson received a phone call from Kathy Johnson of the HRC human resources
department, requesting that Ms. Patterson meet with her. Ms. Patterson went to
Ms. Johnson’s office, where Ms. Johnson indicated that Ms. Patterson could make
a choice – either to take a six-month leave of absence to enable her to reach her
Surplus Factor 80 date, or to be surplussed. Ms. Patterson elected to take the leave
of absence, and Ms. Johnson processed the necessary documents to enable this to
happen.
26. Ms. Patterson’s leave of absence began on February 6, 2009 and expired in
August 2009, at which time the surplussing process commenced. She will qualify
for an unreduced pension under Surplus Factor 80, with the bridging option, in
August 2012.
27. Ms. Patterson had not registered for Variable Surplus Dates.
Ellen Beaton
28. Ellen Beaton, a Counsellor, anticipated that she would be surplussed in
February 2009. If she had been surplussed at that time, she would not have
reached her Surplus Factor 80 date in the normal course.
29. In January 2009 Ms. Beaton approached Anne-Marie Carruthers, a nursing
manager at HRC, and inquired about the possibility of taking a leave of absence.
Ms. Beaton specifically said that the purpose of this request was to enable her to
access Surplus Factor 80. Ms. Carruthers responded that it would not be possible
to approve any leave requests that extended beyond March 31, 2009, because this
was the date of the facility’s closure.
- 14 -
30. Ms. Beaton did not pursue the leave request. In the event, however, she was
not surplussed in February 2009, and continued in active service until the end of
March. This was sufficient to enable her to reach her Surplus Factor 80 date, with
bridging option.
[4] Relevant provisions of the collective agreement are:
Article 20 – Employment Stability
20.2.2 Where a lay-off may occur for any reason, the identification of a
surplus employee in an administrative district or unit, institution or other
such work area and the subsequent redeployment, displacement, lay-off or
recall shall be in accordance with seniority subject to the conditions set out
in this article.
20.1.2.1 where a surplus employee has been identified in accordance with
this Article, the Employer shall advise him or her in advance of providing
notice of lay-off pursuant to Article 20.2.1. such advice shall be provided
in writing, ten (10) working days in advance of formal notice of lay-off.
The purpose of this ten day period is for the employee to consider his or
her options, as applicable, under Article 20.2 (Pay in Lieu).
20.1.2.2 On or before the end of the ten day period described in Article
21.1.2.1 above, the employer shall advise the Employer, in writing, of his
or her decision either:
(a) to exercise rights under Article 20.2;
(b) to remain employed during the six month notice period for possible
redeployment or displacement pursuant to Articles 20.3 and 20.4
respectively.
20.10.1 In the spirit of co-operative attempts to create training and
employment opportunities, the parties agree to the following full time
unpaid leaves which will be advertised widely to employees and granted
subject to local operating requirement:
(a) Extended Educational Leave: The Employer agrees to provide
extended education leave, without accumulation of credits, for
period of a minimum of one (1) school year;
(b) Family Leave: an employee at his or her option shall be entitled
to a leave of absence without accumulation of credits, of up to one
(1) year for care of a dependent person.
Article 24 – Leave of Absence
24.01 An employee may request a leave of absence without pay and
without accumulation of credits. A Deputy Minister shall not unreasonably
deny such requests.
- 15 -
Article 80 – Term of Agreement
80.01 This Agreement covers the period from January 1, 2009, until
December 31, 2012. The effective date of any changes to the term of the
Central Collective Agreement from the previous Central Collective
Agreement, unless otherwise indicated, shall be February 26, 2009. This
Central Collective Agreement shall continue automatically thereafter for
annual periods of one (1) year each unless either party serves notice on the
other in writing that it wishes to bargain for a new Central Collective
Agreement in accordance with the Labour Relations Act, 1995, and the
Crown Employees Collective Bargaining Act, 1993.
Appendix 17
It is agreed that the Factor 80 Program will be extended to December 31, 2012 for
eligible employees. To be eligible the employee must have been laid off before December
31, 2012:
Because he or she had not been assigned to a permanent position within
his or her six month period subject to and in accordance with Article 20.3
(Redeployment) or because he or she had accepted and was assigned into a
temporary vacancy in accordance with Article 20.8 (Temporary
Vacancies), but had not obtained an assignment to a permanent vacancy
within his or her notice period’
AND
Because, failing Redeployment to a permanent assignment, he or she has
exhausted all of his or her displacement rights pursuant to Article 20.4
(Displacement);
AND
If applicable, because failing Redeployment and Displacement, he or she
had accepted an available conditional assignment, but the Employer
determined that the employee did not meet the qualifications for the
position after retraining during the notice period pursuant to Article 20.12
(Conditional Assignments).
The Plan sponsors agree to take steps to amend the OPSEU Pension Plan in an
expeditious manner to provide for the extension of the Factor 80 window for those
employees as described herein. This arrangement meets the requirements of the OPSEU
Pension Plan, including compliance with legislation governing the OPSEU Pension Plan.
This arrangement is contingent on Revenue Canada approval.
The Employer confirms that any costs arising out of the extension of the Surplus Factor
80 Program to the employees covered by this collective agreement shall be exclusively
borne by the employer. No costs shall accrue to the members’ share of the fund as a result
of the extension of the Surplus Factor 80 program to December 31, 2012.
- 16 -
[5] The Union noted in its opening statement that all of the grievances have one common
feature and that is that the grievor wanted to reach factor 80 in order to receive an
unreduced pension and their only means of achieving that desire was to obtain a leave of
absence in order to extend their service.
[6] The six grievors from RRC were surplussed on January 15, 2009, a date that happened to
fall between the expiry of the old collective agreement and the ratification of the new
collective agreement. As a result of this timing, according to the Union, the grievors
faced two handicaps. The first was their not knowing if Factor 80 would be continued in
the new agreement. The second, even if it was, they needed a leave of absence.
[7] The Union noted that while the two grievors from Huronia received their notices of
surplus under the old collective agreement, they still did not know what the terms of the
new collective agreement would provide to assist them to achieve Factor 80.
[8] If these grievances are allowed to proceed on the merits, it will be the Union’s position
that the grievor’s should have been able to exercise the same options that would have
been available to them had the notices not been issued in this hiatus period. They would
have been given options that included seeking leaves of absence in order to bring them
within the Surplus Factor 80 program. They were entitled to have been given fulsome
information about all available choices including seeking additional leaves of absence.
Further, the grievor were not given accurate information regarding the availability of
leaves of absence and they were significantly prejudiced by the Employer’s failure.
Additionally, the grievors were treated differentially from others who sought and
obtained the necessary leaves of absence to their detriment. Finally, Ms. Donovan’s leave
of absence request was improperly denied and based on inappropriate considerations
including her initial consent to take part in the variable surplus date option.
EMPLOYER’S PRELIMINARY MOTION
[9] Ms. Munn, for the Employer, submitted that even in the event that all of the facts as set
out in the Union’s particulars are correct, no prima facie case has been established and
- 17 -
the grievances should be summarily dismissed. In the event that the grievances are not
dismissed on this basis, the Employer reserved the right to challenge the facts as set out.
[10] The Employer urged that the Union’s particulars lack one vital component necessary to
litigate these grievances and that is specific violations of the collective agreement. It was
urged that this absence leaves this Board with no alternative but to dismiss the grievances
preliminarily. While it was conceded that unfair treatment was alleged, that contention is
not sufficient ground for this Board to take jurisdiction of these grievances.
[11] The Employer noted that the Union did refer to Appendix 9 and Appendix 17. Appendix
17 sets out who is eligible for Surplus Factor 80 and Appendix 9 is the provision
regarding pension bridging. The Union conceded that there has been no violation of
Appendix 17 and that the grievors could not have bridged to Surplus Factor 80 even if
they were given the maximum of two years leave of absence set out in Appendix 9. The
Union failed to cite any other provision of the collective agreement that would have made
the grievors eligible for Surplus Factor 80. Accordingly, there is no violation of any
provision of the Collective Agreement and therefore there is no prima facie case.
[12] It was the Employer’s contention that the Board’s long standing jurisprudence reveals
that the Board’s function is not to dispense fairness but to interpret and apply the terms of
the Collective Agreement. In this case, there is no violation and therefore the grievances
should be dismissed.
[13] The Employer relied upon Re OPSEU (Anthony et al.) and Ministry of Labour, GSB
No. 1999/1977 (Abramsky); Re OPSEU (Wong) and Ministry of Government
Services, GSB No. 2010/0756 (Dissanayake); Re OPSEU (Halsall) and Ministry of
Agriculture, Food and Rural Affairs GSB No. 2007/1045 (Briggs); Re OPSEU
(Seguin et al.) and Ontario Science Centre GSB No. 2010/1205 (Briggs) Re OPSEU
(May et al.) and Ministry of Community Safety and Correctional Services GSB No.
2001/1151 (Abramsky); Re OPSEU (Sutherland) and Ministry of Labour GSB No.
2006/0519 (Dissanayake); Re OPSEU (Faulkner) and Ministry of Community Safety
and Correctional Services GSB No. 2006/2093 (Petryshen); Re OPSEU (Dobroff et
al.) and Ministry of Environment GSB No. 2003/0905 (Dissanayake); and Re OPSEU
- 18 -
(Couture et al.) and Ministry of Government Services GSB No. 2008/3329
(Dissanayake).
[14] It was the Employer’s view that in large measure, these grievances are based on a “me
too” claim. That is to say, the Union asserts that others were given a leave of absence and
therefore a failure to grant a leave of absence to the grievors constitutes a violation of the
collective agreement. That claim is being made even by grievors who did not ask for a
leave of absence at the time. The Board has considered such “me too” claims in the past
and has consistently rejected such assertions. What happened to other employees during
this time is irrelevant to the issue of the grievors’ collective agreement entitlements.
[15] The Employer noted that in this matter the Union will contend that the grievors should
have been allowed to exercise the same options that would have been available to them
had the notices not have been given during the hiatus period. Simply put, there are no
facts upon which this Board can conclude that this did not occur. Surplus Factor 80 was
available under the old and the present collective agreement.
[16] The Employer also submitted that despite the Union’s view that the grievors should have
been given more information regarding leaves of absence options, there is nothing in the
collective agreement that entitles them to this. Again, the absence of a specific collective
agreement violation leaves this Board with no alternative but to dismiss the grievances.
The same argument prevails regarding the Union’s assertion that the grievors should have
received more information about the availability of leaves of absence.
[17] The Union has taken issue with the differential treatment of grievors as between Huronia
Centre and RCC. Again, it was the Employer’s view that any differential treatment does
not provide sufficient grounds for this Board to take jurisdiction over the grievances. The
Union is actually attempting to have this Board deal with the issue of eligibility for
pension and that question is not one that can be addressed by this Board. The grievors
saw that others were entitled to pension and want identical treatment. To entertain such a
request is wrong.
[18] Accordingly, the Employer requested all grievances be dismissed.
- 19 -
UNION SUBMISSIONS
[19] Mr. Bohuslawsky, for the Union began by citing the sections of the collective agreement
that were violated. Specifically those are Article 20.1.2.1 (consideration of options);
Article 20.10.1 (voluntary leaves); Article 24 (leave without pay); Article 80.1 (term of
agreement; Appendix 9 (employment stability) and Appendix 17 (factor 80 program).
[20] The Union did not take issue with the Employer’s view of the Board’s jurisprudence.
Rather it suggested that this is not the only area of the law to consider in determining this
preliminary motion. Various provisions in the collective agreement oblige the Employer
to exercise its discretion fairly and in good faith.
[21] Taking each of the Union’s alleged violations in turn, the Union suggested that Article
20.1.2.2 has been violated because the Employer is obliged to allow employees ten days
to make a decision regarding the exercising of their rights flowing from Article 20. In this
case, the grievors were either given incomplete or, in some instances, incorrect
information regarding their options. Further, the grievors were treated differently from
other similarly situated employees who were, as set out in the particulars, either given
correct information when that information was requested, or were contacted at the
Employer’s instigation with guidance as to how best to navigate through the Employment
Stability provisions. This disparate treatment is a further breach of the collective
agreement.
[22] Article 24.2 provides that leaves of absence without pay and without accumulation of
credits may be requested. According to the Union, the Employer cannot unreasonably
deny such requests. The standard of reasonableness requires a genuine exercise of
decision-making power though a consideration of the merits of the reasons the request
was made. A bona fide decision under this provision cannot be based solely on a
unilateral employer rule or policy that seems to have occurred in this case. There was a
blanket refusal made in advance of any application for leave and such a refusal is surely
no less a breach of the collective agreement than a refusal to an actual request for leaves
of absence. Additionally, the same level of inaccurate or incomplete information was
given to these grievors, in contrast to others, regarding certain aspects of leave requests
causing the breach to be even more egregious because the very information some of the
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grievor’s received convinced them that there was no point in applying for a leave in the
first instance. The grievors acted on this information to their detriment. Had they been
provided with correct information they would have applied and they would have had
more opportunity to reach Surplus Factor 80. This is particularly offensive when it is
recalled that at the very time the grievors were being told they could not get a leave of
absence, such leaves were being offered and granted to others. In one case, the same
manager was granting leaves to some and denying the grievors the opportunity for leave.
Indeed, at RCC thirteen leaves of the leaves that were approved in 2008 and 2009 lasted
beyond March 31, 2009.
[23] The Union submitted that all of these same facts reveal a breach of Article 20.10 of the
collective agreement. This article provides for full time unpaid leaves for extended
educational leave and for family leave for up to one year. It was conceded that such
leaves are subject to local operating requirements but the particulars reveal that at least
one grievor was told that leaves of absence for education were no longer available, again
making clear that there was no need to apply. The Employer violated this provision by its
failure to advertise such opportunities and its blanket refusal to consider requests. This
article must be interpreted as a positive obligation on the Employer to advise all
surplussed employees of the availability of such leaves. Once again the particulars make
apparent that the grievors were treated differently than others because at least one other
employee got a leave of absence that was categorized as “educational – community
placement.”
[24] The Union turned to the issues raised by the timing of these events. Some grievors were
surplussed in January of 2009 – that is to say, in the gap between collective agreements
while others were surplussed prior to the expiry of the 2008 collective agreement. The
rights available to the grievors to make an informed decision based on all relevant
information about options should not be diminished simply because they were surplussed
in the hiatus between the old and new collective agreements. Nor should they be
diminished because the surplussing process straddled two collective agreements.
[25] Mr. Bohuslawsky stated that the purpose of retroactivity is to make sure that contractual
rights are not subject to the vagaries of chronology. If that basic principle is accepted then
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it follows that the grievors should have been put back in the same positions they should
have been in had there been no interval in collective agreement coverage. As such they
should have been given an opportunity to make an informed decision based on all
pertinent information regarding their options.
[26] The Union said that the Employer’s application of retroactivity did not cure the prejudice
suffered by the grievor when they made elections based on incomplete or inaccurate
information. The Employer’s duty to apply retroactivity should have provided a chance to
the grievors to revisit options to get to the extended Surplus Factor 80 under the new
collective agreement. This opportunity would have given the grievors a chance to ask for
and be considered for an additional leave of absence.
[27] The Union conceded that there are exceptions to the application of retroactivity. The
presumption of retroactivity can be rebutted by clear and specific language excluding it
or in the event that its application would lead to impractical, unfair or unintended results.
There is no such excluding language in the instant case and accordingly retroactivity
would apply to Surplus Factor 80. It is difficult in the context of a motion asserting no
prima facie case to determine if any of the exceptions apply in this instance. Without a
formal evidentiary record, this Board might be unable to make such a determination.
[28] Turning to the grievance of Ms. Mary Donovan, it was noted that she was the only
grievor at either location to apply for a leave of absence. She did so on January 26, 2009
and shortly thereafter it was denied. In the event that this Board finds that the
submissions made on behalf of all grievors are insufficient to dismiss the motion, surely
it must be found that the individual refusal of the Leave of Absence request was
unreasonable. Other employees who had registered for variable surplus dates were
allowed to change plans. There is no valid business reason why the Employer could not
have similarly allowed Ms. Donovan to rescind her surplus dates. Being on the variable
surplus dates list and being allowed a leave of absence were not mutually exclusive.
Further, the closing of the RCC on March 31. 2009 was relied upon by the Employer for
denial of the grievor’s leave request notwithstanding the fact that the closure date did not
stop others from getting a leave of absence which extended far beyond that date.
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[29] The Union relied upon a memorandum sent on March 30, 2009 noting that Surplus Factor
80 had been extended into the new Collective Agreement. The memo noted that “as the
Surplus Factor 80 program was set to expire on December 31, 2008, it is possible that
people who were surplussed and would otherwise have been able to access their Surplus
Factor 80 date were not given that option.” It is apparent from this communication that
some employees were given the opportunity to revisit the issue. The grievors were all on
salary continuance or were available for assignment. They could have and should have
been given this same opportunity.
[30] The Union relied upon Re Penticton and District Retirement Service and Hospital
Employees’ Union, Local 180 (1977), 16 L.A.C. (2d) 97 (Weiler); Re Durham
Memorial Hospital and London District Service Workers’ Union, Local 220 (1991),
19 L.A.C. (4th) 320 (Kaufman); Re Canada Post Corporation and Canadian Union of
Postal Workers (Sawatzky) (2010), 197 L.A.C. (4th) 180 (Peltz); Re The Crown in
Right of Ontario (Ministry of Community Safety and Correctional
Services/Ministry of Children and Youth Services) and OPSEU (Union Grievance)
(2010), GSB#2009-0167 (Harris); Re The Crown in Right of Ontario (Ministry of the
Attorney General) (Group Grievance) (2002), GSB # 1455/00 (Abramsky); Re The
Crown in Right of Ontario (Ministry of Training, Colleges and Universities) and
OPSEU (Morissette) (2009), GSB#2008-3832 (Dissanayake); Re The Crown in Right
of Ontario (Ministry of Health and Long Term Care and OPSEU (Thurman) (2002),
GSB#0698/01 (Johnston); and Re L/3 Communications/Spar Aerospace Ltd. and
International Association of Machinists and Aerospace Workers, Northgate Lodge
1579 (2004), 127 L.A.C. (4th) 225 (Wakeling).
EMPLOYER RESPONSE SUBMISSIONS
[31] The Employer urged that the Union has significantly overstated the obligations of the
Employer under Article 20. The Employer claimed that given the Union’s view that the
Employer has to provide information of all options upon surplus, it would have to
provide information about any provision of the collective agreement that might be
affected by surplussing – such as parental leave. The Union went so far as to argue that
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the Employer must provide information to employees prior to them being surplussed.
That view is not sustainable.
[32] Further, while the collective agreement certainly provides that employees can request
leaves of absence, there is nothing in Article 20 that obliges the Employer to inform
surplussed employees of their right to request Leave of Absence. Such a view puts the
burden of information upon the Employer but that is not a principle that is grounded by
any provision of the collective agreement or in any case law provided to this Board.
[33] Ms. Munn contended that the obligation found in Article 20.10 is restricted to the need to
advertise leaves widely. There is no assertion from the Union that leaves were not
advertised. The Union has taken the position that the Employer should have advised the
grievors of these leaves. That view cannot be upheld. Article 20.10 is not an obligation to
inform individuals of leaves – merely the agreement to “advertise widely”. There is no
express or inferential obligation to provide that individual information.
[34] Regarding the matter of differential treatment, the Employer took issue with the Union’s
assertion that once information was given to one or two employees it must be provided to
all. This aspect of the Union’s argument is nothing more than a “me too” claim which
this Board has said is beyond its jurisdiction.
[35] The Employer said that the Union’s position that the dissemination of incorrect
information to the grievor’s is a violation of the collective agreement. There is no
collective agreement provision that obliges managers to answer questions or provide
information that has been requested. It ought not to be forgotten that the question posed
was whether the grievors would be entitled to Surplus Factor 80. That question was
beyond the knowledge and capability of managers.
[36] Ms. Munn disputed that there was any “blanket refusal” for requests for leaves of
absence. It is to be recalled that, according to the facts, a number of people who requested
leaves of absence received them. Further, the information that was given to the grievors
at the time cannot be found to amount to a denial of a request for a leave of absence.
Indeed, on the facts that are set out in the particulars, only one grievor actually requested
a leave of absence. In the absence of a request, there is no obligation to consider and the
Employer cannot be said to have been unreasonable. If the discussions set out in the
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particulars were denials of leaves of absence requests then all of the evidence in this area
will have to be called and subjected to cross-examination.
[37] The Employer asserted that the Union’s characterization of the providing of incorrect
information as a management right infraction is wrong. The fact that incorrect
information may have been given to some of the grievors does not establish bad faith or
discrimination. This contention of the Union is tantamount to a general duty of care
argument. The Board has rejected that view in the absence of a contravention of the
collective agreement.
[38] Ms. Munn noted that the Union would have this Board find that the ability to apply for a
leave of absence to get to Surplus Factor 80 is a right under the collective agreement. It
urged that the leave of absence provision found at Article 24 is a mechanism intended to
allow employees to get to Surplus Factor 80. That is no such provision in the collective
agreement. The Union is seeking a right that does not exist.
[39] Regarding the Union’s arguments regarding the retroactivity provisions, it was the
Employer’s view that there is no requirement to provide information to request a leave of
absence irrespective of which collective agreement is considered. The Union said that
there should have been some opportunity to reassess options once the new collective
agreement was ratified. However, as conceded by the Union, the rights of the grievors did
not change from one collective agreement to the next and therefore there was no
obligation to revisit options.
DECISION
[40] The Employer has brought forward its motion that, assuming that facts alleged in the
particulars to be true, the grievances must be dismissed because there is no prima facie
case. I disagree.
[41] In Re Crown In Right of Ontario and OPSEU (Union) GSB#2009-0167 (supra) Vice
Chair Harris was asked to determine if the Employer’s failure to allow compensating
time off for overtime worked was a violation of the Collective Agreement. In a decision
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dealing with an Employer objection regarding the Board’s jurisdiction to hear the matter,
the Vice Chair reviewed the Board’s jurisprudence. He said, at para 44:
The foundation case often relied upon regarding the Board’s jurisdicition to review
decisions of management is Bousquet 0541/90 (Gorsky). In Ashley 2001-1700
(Abramsky) the Board commented on Bousquet as follows at page 14:
Consequently, under Bousquet, supra, the jurisdiction of the Board to review the
Employer’s exercise of a right reserved to management is derivative – it depends
on the existence of a provision in the collective agreement which might be
adversely affected by management’s action.
The Board’s jurisprudence is summarized in Sutherland, 2006-0519 at paragraph 16 as
follows:
The principle that results from the above noted authorities (see also Re McIntosh,
3027/92 (Dissanayake) and Re Boulet, 1189/99 (Brown) is that, for the Board to
seize jurisdiction, there must be an allegation that the employer’s exercise of
management rights in a contravention or abridgement of a substantive right under
the collective agreement.
An “abridgement of a substantive right in the collective agreement is no different than a
provision of a collective agreement being adversely affected. The test in Bousquet set out
above is still valid. This view is underscored in paragraph 19 of Sutherland:
The authorities reviewed above establish two propositions with respect to CWW
arrangements. First, that article 10.1 does not impose any obligation on the
employer to enter into a CWW arrangement with any employee. Second, article
10.1 “…does not provide for a discretion to be exercised by the employer. Rather,
it simply provides a mechanism for the parties to mutually arrive at “other
arrangements” vis a vis a variable week”. See, the quotation from Re Algerson et
al, set out at p. 7 (supra). It follows, therefore that the employer’s decision to
negotiate or not negotiate a CWW arrangement is a matter of a management right
to “among other things, manage its business as set out in article 2”. (Re Emmett),
(supra), at p. 11). Therefore this Board has no jurisdiction to review the
employer’s exercise of a management right, in the absence of a claim that such
exercise (in this case the non-exercise) of management rights affects a right of
the grievor under the collective agreement. Since the union has not made such
a claim. Nor has it alleged bad faith. In the circumstances the Board lacks
jurisdiction. Therefore, the employer’s first motion succeeds. (emphasis added)
Here the Union says that a number of rights in the collective agreement have been
adversely affected, including the right to local processes and the right to at least ask for
CTO. In the cases put before me, the grievor’s were at least afforded the opportunity to
request a compressed workweek or CTO. In the matters before me, there are real and
substantive differences between the parties that arise out of the collective agreement. It is
within the Board’s jurisdiction to consider and determine those differences. The
collective agreement includes provisions that cover the matters raised by the Union. The
Board has the jurisdiction to decide whether those provisions encompass the rights
asserted in the grievances. It is a matter of contract interpretation, a fundamental
responsibility of the Board. Put differently, the dispute arises expressly or inferentially
out of the collective agreement. That was not the case in Belanger, supra, where there
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was no article in the collective agreement dealing with the provision of uniforms to
employees.
[42] This jurisprudential review is most helpful and applicable to the matter at hand. The
grievors have alleged that they have been treated in a fashion that is contrary to a variety
of provisions of the collective agreement. Specifically it was said that their ability to
achieve Surplus Factor 80 was barred due to the timing of their surplus, the timing of the
renewal of the collective agreement and/or the failure of the Employer to retroactively
offer certain options regarding Surplus Factor 80 once the new collective agreement was
ratified. Further, the Union urged that the Employer’s engaged in bad faith by telling the
grievors that there was no point in attempting to utilize their right under the collective
agreement to seek a leave of absence which would allow them to reach Surplus Factor 80
with bridging.
[43] Like in the case before Vice Chair Harris, “the collective agreement includes provisions
that cover the matters raised by the Union” in the matters at hand. Further, the Board does
have the “jurisdiction to decide whether those provisions encompass the rights asserted in
the grievances”. It is a matter of contract interpretation, a fundamental responsibility of
the Board.
[44] Many of the arguments put forward by both parties in this preliminary motion are more
properly matters to be considered in the ultimate determination as to whether these
grievances should succeed. It will be a matter of contract interpretation as well as
whether the Employer has acted in bad faith.
[45] The Employer contended that some of the grievances are nothing more than “me too”
claims. Once the evidence is heard, that may be found to be true. I am not prepared to
make that finding at this point in the proceedings.
[46] According to the particulars the grievors were told by various managerial authorities not
to “bother” seeking a leave of absence. The Employer submitted that on the facts set out
in the particulars, there was no denial of a request for a leave of absence to any grievor
other than Ms. Donovan. Accordingly there can be no consideration of whether the
Article 24 has been violated. Further, the Employer said that just because information
given by a manager was not correct does not establish bad faith or discrimination. While I
am certainly not going to decide in this preliminary motion as to whether there was an
unreasonable denial of leave of absence requests, it seems to me that the Employer
cannot advise employees that there is no point in making a request for a leave of absence
in accordance with Article 24 and then urge this Board to say there is no prima facie case
or bad faith because those employees took their managers at their word. I do not accept
that view.
[47] It may be that there were legitimate reasons to grant some but not all employees a leave
of absence. Further, I understand that the Employer takes the position that there is no
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absolute or defined right to a leave of absence for surplussed employees to allow them to
bridge to Surplus Factor 80. However, these are not matters to be decided at this time.
[48] The Employer also rejected the Union’s assertion that there was a “blanket” rejection of
requests for leaves of absence. I understand that claim given that, by the Union’s own
particulars some employees requested and obtained leaves of absences. But the fact that
some obtained leaves of absence does not diminish the fact that the grievors were told
leaves of absences “were not being entertained for anyone” and then acted on the
direction they received to their detriment.
[49] Accordingly, the Employer’s motion is denied. I ask counsel to contact the Board to set
up a conference call to discuss the most expedient method of litigating these matters.
Dated in Toronto this 8th day of March 2013.
Felicity D. Briggs, Vice-Chair