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HomeMy WebLinkAbout2011-3795.Osborne.13-05-07 DecisionCrown 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#2011-3795 UNION#2011-0605-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Osborne) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Paul Meier Ministry of Government Services Labour Practice Group Counsel HEARING April 16 & 17, 2013. - 2 - Decision [1] This matter concerns a grievance dated November 28, 2011, filed by Mr. A. Osborne, in which he claims that the Employer exercised its management rights in an arbitrary and bad faith manner when it decided to surplus his position. The grievance specifically alleges a breach of article 2 and 20 of the Collective Agreement. The Employer denies that it contravened the Collective Agreement when it decided to surplus Mr. Osborne’s position. [2] The parties called two witnesses. In his testimony, Mr. Osborne described the basis for his belief that management engaged in an improper exercise of its rights when it surplused his position. Mr. Al Tithecott, Director, Aviation, Forest Fire and Emergency Services (“AFFES”), provided a detailed explanation of the process and the reasons behind management’s decision to surplus some positions, including Mr. Osborne’s position. Mr. Tithecott’s testimony was supported by relevant documentary material. In determining the facts, I carefully reviewed the testimony of the two witnesses, the documentary evidence and the submissions of counsel relating thereto. [3] MNR’s Provincial Services Division is responsible for the operational delivery of four province-wide programs and services, namely AFFES, Ontario Parks, Enforcement and Fish and Wildlife Services. The AFFES Branch has three front line operational areas: Forest Fire Management, Emergency Management and Aviation Services. It utilizes the Business Management Section and the Integrated Services Section to support the three front line operational areas. Communication is one of the support services provided by the Integrated Services Section. Mr. Osborne was employed as a Communications Advisor/Planner (IO3) in the Integrated Services Section, reporting to the Planning & Information Program Leader, Ms. - 3 - Griffin. In addition to communications positions within the AFFES, the MNR also operates a Communications Services Branch (“CSB”). The CSB is based in Toronto and provides complete corporate communications support for all of the Ministry’s policy, program and operational areas. [4] After an extensive operational review, the MNR identified six OPSEU represented positions that would be eliminated. Three of these positions were in the AFFES Branch, one of them being Mr. Osborne’s Communications Advisor/Planner position. The other three positions were communication jobs in the CSB. Of the six positions eliminated, five were Communication/Information related positions. [5] In its disclosure letter to OPSEU dated November 1, 2011, the MNR advised as follows: “Following a review of the position of Communications Advisor/Planner, it has been determined that this position has become redundant due to some overlapping roles with Communications Branch staff. The Communications Advisor/Planner position will therefore be eliminated.” Mr. Osborne received pre-notice on November 17, 2011, that his position was to be declared surplus by formal Notice of Layoff issued on December 2, 2011. His layoff date was June 2, 2011. Mr. Osborne initially opted for redeployment, but as of March 3, 2012, he opted for pay in lieu of notice for the balance of his notice period and left the OPS. [6] The Communications Advisor/Planner position is a strategic communications position. Its purpose, as reflected in a revised position description, is “to plan, coordinate, and implement outreach and communication strategies including communication planning, media - 4 - and public relations, outreach initiatives, as well as development of communication and promotional material” for the Branch. [7] After many years of working in the communications field outside the OPS, Mr. Osborne succeeded in obtaining the Communications Advisor/Planner position in the AFFES Branch in Sault Ste. Marie in May of 2007. He looked forward to utilizing his experience and skills to perform the full range of duties described in the position description. However, it was not long before Mr. Osborne took issue with the nature of the work he was assigned. His belief that management failed to follow the terms of the position description ultimately led him to file a grievance dated August 10, 2010, in which he requested, among other things, “that the terms of my position description, job content and terms of employment be adhered to.” The parties settled the grievance “without precedent and without prejudice” in December of 2010. As part of the settlement, the parties updated Mr. Osborne’s job description and they agreed that his “immediate supervisor and manager will continue to assist and guide the grievor as to his role and responsibilities as the branch Communications Advisor/Planner.” The parties also agreed that Mr. Osborne’s immediate supervisor and manager “will continue to search for other temporary opportunities within the Ontario Public Service for the grievor, outside of his role as the Communications Advisor/Planner.” [8] Mr. Osborne testified that there were continuing issues concerning his role as a Communications Advisor/Planner after the settlement of his grievance. He also indicated that he believed that his supervisor and manager did not make any significant efforts to search for other temporary opportunities for him. It was these circumstances which led Mr. Osborne to conclude that the real reason the Employer decided to surplus - 5 - his position was to get rid of someone it perceived as a problem employee. I note that Mr. Osborne did not file a grievance alleging a breach of the settlement of his earlier grievance. [9] Mr. Osborne also believed that the Employer’s decision to surplus his position was arbitrary. This was based on the fact that his “senior” position was eliminated while a Communications Intern position was not touched. The Communication Intern position referenced by Mr. Osborne was held by Mr. M. Ward. The Job Ad for a Communications Intern position had a closing date of June 8, 2011. This position was one of the approximately 75 internship positions that the MNR offers to give fixed-term work placements to recent college/university graduates. The fixed- term intern position held by Mr. Ward ended on January 18, 2013. [10] Mr. Tithecott became Director of the AFFES Branch in July of 2011. Before assuming the position of Director, he was General Manager, Response and Operations, and a part of the AFFES Branch management team. Contrary to the Union counsel’s submission, I find that Mr. Tithecott was able to provide direct evidence about the elimination of Mr. Osborne’s position in AFFES. [11] Mr. Tithecott testified that recent Provincial Budget decisions caused all Ministries, including MNR, to review their business operations and core business objectives. The March 2009 Ontario Budget called for a five percent reduction (3,400 FTEs) in the size of the OPS over three years to March 31, 2012. The March 2011 Ontario Budget provided for a further reduction of 1,500 FTEs by March 31, 2014. - 6 - Faced with this reality, the MNR looked at various options to reduce its FTE count, including program review, alternate service delivery methods and reorganization. In April of 2011, the “AFFES Branch FTE Plan” disclosed that the Branch was facing a reduction of 33 positions from September 2009 to March 2014. Mr. Tithecott testified that MNR was ultimately left with little option but to eliminate the 6 OPSEU represented positions referenced previously. He indicated that its primary goal when confronted with the prospect of eliminating positions was to focus on positions that did not provide a core business function. [12] Mr. Tithecott indicated that the Communications Advisor/Planner position was selected for elimination because the position did not perform a core business function, such as fighting fires and getting planes into the air, and because the position’s communications advisory and planning functions can be and are primarily performed by CBS staff. He indicated that management’s decision to eliminate this position had nothing to do with any issues Mr. Osborne may have had with the nature of the work he was assigned. He also indicated that management’s focus was on eliminating full-time positions, so that its focus was not on the Communications Intern position, which was a temporary position. As an aside, Mr. Tithecotte testified that the Employer did make efforts to search for other opportunities for Mr. Osborne pursuant to its obligations under the settlement. He explained that it was difficult to find opportunities for Mr. Osborne in an environment where the government was engaged in a downsizing exercise. [13] In her submissions, Union counsel argued that the decision to eliminate Mr. Osborne’s Communications Advisor/Planner position was made as a result an improper - 7 - exercise of management rights. She submitted that it was made in bad faith because it was really motivated by a desire to remove an employee who raised issues about his work assignments in relation to his job description. She also argued that it was arbitrary because the Communications Intern position continued to exist while Mr. Osborne’s more senior position was eliminated. Counsel submitted that this is an instance where the Employer used the cover of a Budget crisis to eliminate a position of a troublesome employee. She also submitted that the Employer’s decision to eliminate Mr. Osborne’s position amounts to disguised discipline and could not have been intended in these circumstances to carry out a legitimate government purpose. In support of her submissions, counsel referred me to OPSEU (Bousquet) and Ministry of Natural Resources (1991), GSB No. 541/90 et al. (Gorsky). [14] After reviewing the evidence, Employer counsel submitted that the MNR’s decision to surplus the six OPSEU represented positions, including Mr. Osborne’s Communications Advisor/Planner (IO3) position, was based solely on bona fide business considerations. He requested in particular that I accept Mr. Tithecotte’s explanation as to what motivated the Employer to surplus Mr. Osborne’s position. Employer counsel submitted that there is no basis to support Mr. Osborne’s speculation about why the Employer decided to surplus his position. Counsel relied on an excerpt from Ontario Public Service Employment Law, authored by Hadwen, Strang, Marvy and Eady, as well as OPSEU (Boulet et al) and Ministry of Community and Social Services (2000), GSB No. 1189/99 (R. Brown) - 8 - [15] The principles that govern an inquiry about whether a management right has been exercised properly are set out in the following section of Ontario Public Service Employment Law, supra, at Chapter 10, page 573: Bousquet, the leading GSB case on management rights, sets out the basis for limiting the exercise of a management right. There must be a provision in the collective agreement that would either be negated or unduly limited by application of the right. If the exercise of the management right has such an impact, then it must meet two inter-related tests. First, it must be carried out in good faith, which requires that an employer have “a genuine intention to carry out a legitimate government objective….” The decision cannot be a “disguised means of achieving impermissible ends based on discrimination or other grounds unrelated to the making of genuine management decisions.” Secondly, it must meet the test of reasonableness, which only requires that there be “a rational relationship between the facts leading to the making of the decision and the decision itself.” Where it can be seen that the decision follows logically from the facts, the reasonableness test will be met. The GSB has stressed that it “will hesitate to substitute its view for that of the employer as long as [these] minimum tests are met …. Management ….need not be correct.” [16] Although I can appreciate why Mr. Osborne believes that the Employer exercised its management right improperly, the application of the above considerations to the facts do not establish that the Employer contravened the Collective Agreement when it eliminated his position. Once it was compelled by Budget considerations to eliminate positions, management adopted a business strategy of keeping positions in the AFFES that were directly related to its core mandate of front-line fire response and aviation services. Mr. Osborne, as a Communications Advisor/Planner, occupied a position which did not provide a core mandate function. Indeed, the communications advisory and planning functions that he provided can be provided to the AFFES Branch by staff in the CBS. I have no hesitation in accepting Mr. Tithecotte’s testimony that these were the critical and only considerations which led management to eliminate Mr. Osborne’s position. His position was not eliminated because he had difficulties with the nature of his work assignments and grieved about the Employer’s failure to assign him work - 9 - consistent with his job description. The fact that his permanent position was eliminated while the Employer kept the Communications Intern position, a temporary position that would soon be eliminated, is not evidence that the Employer made an arbitrary decision. If Mr. Osborne’s purpose in claiming that his supervisor and manager did not make any significant efforts to search for other temporary opportunities for him pursuant to the settlement was to show some animus by the Employer against him, it was not successful. I accept Mr. Tithecotte’s testimony that such efforts were made but were simply not successful given the downsizing environment. [17] In exercising it right to eliminate Mr. Osborne’s Communications Advisor/Planner position, MNR management acted in good faith in that it had a genuine intention to carry out a legitimate government objective and did not have an ulterior motive to achieve an impermissible goal. In addition, management’s decision satisfies the test of reasonableness. [18] Given my conclusion that MNR’s decision to eliminate Mr. Osborne’s position was not made in bad faith or made in an arbitrary manner, Mr. Osborne’s grievance dated November 28, 2011, is hereby dismissed. Dated at Toronto this 7th day of May 2013. Ken Petryshen, Vice-Chair