HomeMy WebLinkAboutMarshall 13-07-09IN THE MATTER OF AN ARBITRATION UNDER
THE ONTARIO LABOUR RELATIONS ACT
BETWEEN:
SUREX COMMUNITY SERVICES
(“the Employer”)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
ON BEHALF OF ITS LOCAL 5102
(“the Union”)
GRIEVANCE OF JOHN MARSHALL RE LAY-OFF
AWARD
ARBITRATOR: BARRY STEPHENS
FOR THE EMPLOYER: EMPLOYER COUNSEL: DIRK VAN DE KAMER, Miller Thomson LLP
FOR THE ASSOCIATION: UNION COUNSEL: JENNIFER FEHR, OPSEU Grievance Officer
HEARING HELD IN TORONTO, ONTARIO ON FEBRUARY 27, 2013
A W A R D
Introduction
[1] The grievance arises from the employer’s decision to eliminate three bargaining
unit positions by giving notice of layoff to the three junior employees in the affected
classifications, and then transferring the three senior employees whose jobs were
actually eliminated to other positions. The grievor was one of the three senior
employees affected. The union contends that the employer’s decision effectively
circumvented the grievor’s seniority rights to bump a junior employee.
Facts
[2] The employer operates a number of group homes and multi-service day
programs for developmentally challenged individuals. The grievor has been working as
a Counsellor 2 since 1999. At the time of the events giving rise to the grievance, he was
working in the John Carboni day program.
[3] In February 2012 the members of the bargaining unit received a memo
indicating that the employer was looking at restructuring the workplace in order to
meet certain financial targets. Around the same time, there were direct discussions
with the union (the grievor was involved as union president) about the need to reduce
positions. Later in February, the employer issued a memo to employees asking them to
indicate preferences in the event of reassignment. At that point there was no indication
that the grievor’s position might be affected, although the memo referred to
unspecified changes. The grievor duly indicated his preferences for transfers to
2
positions of less senior employees. As it turned out the grievor’s position and two
others were targeted for elimination. Two of the positions were in the day programs,
while the third was at Manorwood House. Eventually the grievor was advised that he
would be transferred to fill the position vacated by a junior employee at Hampton
House.
[4] The relevant collective agreement layoff language is found in Art. 13.01(a):
A Full-time Employee with sound experience as a Counsellor, given notice of a layoff shall
be entitled to accept the layoff and retain recall rights or displace an Employee with
lesser seniority who is in the same job classification or a lesser paid job classification.
[5] Also relevant are Art. 3.01 the management rights provision, and Art. 14.01
regarding transfers:
Article 3 – Management Rights
3.01 The Union recognizes and acknowledges that the management of the Employer’s
business and direction of the working forces are fixed exclusively with the Employer and
shall remain solely with the Employer and without limiting the generality of the
foregoing; the Union acknowledges that it is the exclusive function of the Employer to:
…
(c) hire assign duties, transfer, promote, demote, classify, layoff, recall, retire,
discharge, suspend or otherwise discipline Employees, provided that a claim that an
Employee who has completed her probationary period has been discharged or disciplined
without just cause or has been dealt with contrary to the provisions of this Agreement
may be the subject of a grievance and dealt with as hereinafter provided.
Article 14 – Transfers and Job Posting
14.01 Transfers
Full-time Employees who wish to permanently transfer to a new worksite, in their
existing job classification, shall complete a Transfer Request form and submit it to the
Manager prior to any transfer opportunity becoming available. Such Employees will then
be placed on a Transfer List. When a permanent full-time vacancy becomes available in
the bargaining unit, the Employer will offer the permanent vacancy to the Employees on
the Transfer List in accordance with their seniority.
Notwithstanding the Employer’s right to assign, the Employer agrees that when the
transfer of an Employee is required, that where possible, the requests of the workers as
to preferred location will be considered.
3
Union Submissions
[6] The union asserts that the employer should have given notice of layoff to the
grievor, and that the grievor’s transfer should be rescinded and he be given the
opportunity to exercise the options under Art. 13.01(a).
[7] The union raises four main points to support the grievance.
[8] First, the union argues that the employer effectively rendered Art. 13.01
meaningless by giving notice of layoff to the junior employee in the classification rather
than to the actual positions affected.
[9] Second, the grievor was the individual actually impacted by the job reduction, in
that his was one of the positions eliminated, and he was required to transfer as a result
of the layoff. The union contends that the layoff notice must be given to the person
whose job is actually affected, and it is that person to whom the layoff protection
should be applied.
[10] Third, once the decision was made to reduce staff, the circumstances for a layoff
had been created, and it was not proper for the employer to attempt to treat the
situation as a transfer. While the employer has the right to reassign employees under
Art. 3, it should not be permitted to use this provision to avoid the commitment to
layoff rights under the guise of implementing a transfer. The language in Art. 13.01
refers clearly to the right of the senior employee to displace a junior employee in the
4
“same job” and this right would always be meaningless if the employer was permitted
always to lay off the junior employee in the job. Rather than having the opportunity to
exercise his seniority rights, the grievor was involuntarily transferred to another
position.
[11] Fourth, the transfer of the grievor did not avoid a layoff and it is clear that the
decision had been made to transfer the grievor rather than allow him to access his layoff
rights. This materially affected the grievor’s right, not simply with respect to the job he
might have chosen, but also with respect to other rights, such as accepting the layoff.
[12] The union submitted that, in case of layoff, the layoff notice must go to the
affected employee or employees, and that otherwise the layoff protection language is
rendered meaningless.
[13] The union referred to the following authorities: Gourmet Baker (2000), 92 L.A.C.
(4th) 129 (Ellis); Brockville General Hospital (1994), 41 L.A.C. (4th) 328 (Thorne); Windsor
Hospital Linen Services (15 L.A.C. (4th) 281 (Dissanayake); Moloney Electric (1985), 22
L.A.C. (3d) 170 (M. Picher).
Employer Submissions
[14] The employer submits that the language in this collective agreement with
respect to layoff is unusual in that it is quite sparse and does not contain rules regarding
who should be laid off, as is found in other collective agreements. Thus, the employer
5
focuses on the question of whether there is a specific provision in the collective
agreement that has been violated, and answers this question by asserting that there is
nothing in the collective agreement that tells the employer who is to laid off in the
event of an elimination of positions. In particular, the employer relies on the fact that
this collective agreement, unlike others canvassed in the jurisprudence, does not refer
to providing notice of layoff to “affected employees”. Rather, the trigger for layoff is the
notice itself, and the collective agreement is silent as to who is to receive such notice. In
other words, the rights that flow to the laid off employee are triggered by the event of
receiving a notice of layoff, not as a result of the status as an “affected employee.”
[15] As a result, the employer submits that, in the absence of any rule that grants an
individual employee the right to receive a notice of layoff, there cannot possibly be a
violation of the collective agreement where the employer exercises its discretion with
respect to which employee receives the notice of layoff. There being no right to any
particular employee to receive notice of layoff, there can be no violation of the
collective agreement.
[16] The employer pointed out that the changes in the workplace under
consideration were brought about as a result of severe financial problems. In such a
circumstance, the employer is not going to give layoff notices to those people who
would generate the highest amount of severance costs. The grievor wishes to take his
severance and pursue other interests, but he needed to receive notice of layoff in order
to do so. However, the employer was not obliged to give him such notice.
6
[17] The employer also argued that the circumstances were different from a normal
layoff. There was no reduction in the employer’s overall work, nor had the employer
lost clients. Rather, the employer had been forced to reduce the number of employees
by three, although the remaining employees are required to maintain the same level of
service. The employer argued that the seniority list does not distinguish with respect to
the location of employment, and all employees are treated as a single group. The
employer simply identified the three most junior employees, and issued layoff notices to
them. The employer also noted that the restructuring process was going on at the same
time, and that the grievor along with others had already indicated their transfer
preferences at the time when the layoff notices went out.
[18] The employer argued that the transfers were carried out in accordance with
Articles 3 and 4 of the collective agreement, which provide that the employer has the
power to effect transfers, but that in doing so must consider the input of employees
with respect to where they would prefer to be transferred.
Conclusion
[19] The employer is correct in asserting that there is no explicit statement in the
collective agreement that stipulates which employees are to receive notices of layoff.
This case comes down to the question of whether I should accept the employer’s
submission that the person who receives a notice of layoff is a matter of management
discretion, or whether I should imply from the collective agreement language that the
parties intended that notices of layoff would be issued to employees whose positions
7
are directly impacted by the circumstances, i.e. those employees whose positions are
actually eliminated.
[20] It is not difficult to see why the employer would take the position it has taken,
even in a circumstance where only three positions were reduced. Using the expedient
of giving notices of layoff to the most junior employees produces quite tangible
benefits. A primary benefit is that the junior employees will be entitled to less
compensation for severance than would senior employees whose positions are actually
affected, should the latter opt to accept a layoff. In addition, the combination of the
layoff of junior employees and the use of the transfer process for senior employees
creates a controlled process of realignment, that provides for some employee input but
ensures the employer ultimate control over the reassignment of employees that would
be required to vacated the targeted position held by the senior employee. This means a
smoother transition to the new structure and the avoidance of the potentially disruptive
ripple effect of multiple bumping.
[21] There is nothing wrong with any of these considerations, and any employer
would be foolish to ignore the advantages that can be gained from them when making
the difficult adjustments associated with a reduction of the workforce. It is, in a sense,
the undoubted attractions that flow from the employer’s interpretation of Art. 13.01(a)
that argue against that interpretation. The employer’s approach is clearly far more
advantageous to it than the approach suggested by the union, so much so that I cannot
imagine a meaningful scenario in which it is likely the employer would opt to give notice
8
to a senior employee whose position is being eliminated in a layoff. It will always be
better, from the employer’s perspective, to eliminate a junior employee for the reasons
outlined above, even when only one of the advantages can be gained. This conclusion is
supported by the fact that, in the circumstances before me, the employer opted to
adopt this approach even though only three positions were eliminated. If the
advantages are clear for one, two or three positions, they will only be clearer and more
profound where larger numbers are at stake. All of this supports my view that, if I were
to confirm the employer’s interpretation, it is indeed unlikely to opt differently in any
future layoff scenario.
[22] On its face Art. 13.01(a) purports to offer senior employees greater protection in
the event of layoff. The clear purpose of such language is to give an employee
otherwise impacted by the negative consequences of layoff some meaningful control
over those consequences to the extent permitted by his or her seniority. Aside from
reducing the risk of ultimate loss of ones employment, the most important issue for a
senior employee affected by layoff is the right to have some control over the process of
displacement to another position. The logic of provisions such as Art. 13.01(a) is that
the greater an employee’s seniority, the greater selection he or she will have when it
comes to choosing from the jobs that remain after a layoff. The employer’s application
of the language has the opposite effect by removing the senior employee from his or
her position and at the same time depriving the employee of any ability to exercise
seniority, reducing them expressing a preference that the employer is only required to
“consider.” Thus, rather than granting bumping rights that grow with seniority, the
9
employer’s approach strips the employee of the ability to invoke his or her seniority in
order to control such factors as preferred work location, shifts, and other important job
considerations.
[23] In my view, it is not likely the parties intended Art. 13.01(a) would have the
meaning suggested by the employer because, quite simply, it is my conclusion that the
parties would not have negotiated language that would give the appearance of granting
important rights but would, in reality, be readily circumvented and prove to be patently
useless to senior employees affected by layoff. To read the collective agreement in the
manner suggested by the employer is, in effect, to read the collective agreement as if
Art. 13.01(a) does not exist, that its words have no meaning, and that the parties did not
intend the article to materially affect their bargaining relationship. Put another way, the
employer’s interpretation creates an absurdity, in that language that purports to
guarantee the right to exercise seniority in the event of a layoff provides no guarantee
whatsoever.
[24] An arbitrator does not have the jurisdiction to read a collective agreement in a
manner tantamount to amending or ignoring any of its provisions or creating absurdities
where the language is capable of other, more rational, meaning. Rather, all words in the
collective agreement are to be assumed to have meaning, and each collective
agreement provision is to be understood to define the rights and obligations of the
parties. I cannot escape the conclusion that, if layoff rights are to be triggered for a
senior employee solely at the discretion of the employer, I can conceive of no
10
meaningful or practical scenario in which the employer would opt against its own
interest and give a notice of layoff to the senior employee. After considering the
submissions of the parties, the evidence and the jurisprudence, it is my conclusion that
Art. 13.01(a) must be read to implicitly require that notices of layoff will be given to
employees whose positions are actually being eliminated; otherwise the language would
be rendered a nullity and would retain no real meaning.
[25] I do not attach any significance to the fact that the layoffs in this case did not
involve a reduction of the employer’s work. In my view, layoff protection is focussed on
the impact of job reductions on employees, and the context for the reduction does not
make any difference to the employee whose job has been eliminated. An employer may
be required to reduce staff due to a loss of business or, as in this case, as a result of
restricted funding. In both instances, the elimination of jobs constitutes a layoff. In
addition, I cannot ascribe any weight to the choice this grievor might have made when
exercising his rights under the collective agreement. The rights set out in Art. 13.01(a)
either exist and have meaning, or they do not. If they have meaning, as I find they do,
the manner in which an individual employee might exercise those rights is not relevant
to the interpretation of those rights.
[26] For the reasons set out above, the grievance is upheld, and I find that the
employer violated the collective agreement by failing to give the grievor appropriate
notice of layoff and permitting him to exercise his rights under Art. 13.01(a). I remit the
issue of remedy back to the parties for resolution. I remain seized of any issues relating
11
to remedy that the parties cannot resolve, and to any other issues arising from the
implementation of this award.
_________________________________
Barry Stephens, Arbitrator
July 9, 2013