HomeMy WebLinkAbout2012-3345.James.14-01-23 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#2012-3345
UNION#2012-0706-0004
Attached list of additional grievors
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(James) Union
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The Crown in Right of Ontario
(Ministry of Government Services) Employer
BEFORE Ken Petryshen Vice-Chair
FOR THE UNION Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER George Parris
Ministry of Government Services
Legal Services Branch
Counsel
HEARING June 28, November 22, 2013
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Decision
[1] I have a number of grievances before me filed by employees in the position of Team
Lead in the Ministry’s Payroll and Benefits section. Their positions were declared surplus in
October of 2012 and the Union takes the position that they were improperly surplussed. The
Employer takes the position that these grievances do not make out a prima facie case of a
Collective Agreement violation and requests that the grievances be dismissed.
[2] The parties agreed at the hearing to argue the Employer’s motion to dismiss the
grievances on the basis of the particulars provided by the Union. For the purposes of this
motion, it is assumed that the particulars are true and provable. Counsel also supplemented the
particulars with additional facts during their submissions. The particulars filed by the Union are
as follows:
1. All of the Grievors previously held the position of Team Lead until the position was
declared surplus as of October 22, 2012. This position was classified as a CCL 14
2. At the same time, the Employer created the new position of Payroll/Benefits
Production Analyst (PBPA) was created and it was an EO2 position which prevented the
surplussed Team Leads from having the opportunity to be directly assigned in accordance
with the Collective Agreement. The E02 position was above the salary cap for direct
assignment. Therefore, competitions were held for the PBPA position. (*NOTE – there
are separate grievances for the job competitions)
3. As acknowledged by ADM Riet Verheggen in a staff meeting with the Payroll
Operations Branch at Thunder Bay on May 30, 2013, the new position (Payroll/Benefits
Production Analyst) is performing the same duties as the Team Leader position and that
changes in the PBPA position would not occur until at least the 4th quarter of 2013 (Jan –
March 2014) because the business processes were not ready and they were not ready to
make the change. This was in response to a question provided to ADM Verheggen by
email on May 27, 2013 and at the meeting during the Q &A section the following
question was asked “Why is it the Team Lead positions were surplussed when in fact the
(2) team leads (2 Analyst positions) are doing the same work, the roles and
responsibilities have not changed but are now doing the work of 4 Team Leads.
a. The above was witnessed by: Claudette James, Charlene Greaves
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4. The job description of the Team Lead had not been updated in many years even
though the duties had changed and the description was no longer accurate. The Team
Leads had been doing the duties of the current PBPA position since WIN Version 9.0
came online in September 2010.
5. On November 24, 2011 Ms. Penny Ann Lang sent an email to Ms. Linda Brookes,
Ms. Toni Colbourn, Ms. Rhonda Rooney, Ms. Elaine Witherall, Ms. Lynn Chamberlain,
with a cc to Ms. Joy Syncox, requesting as follows:
Appreciate if you could kindly send out this information to your team with
regards to a review of job specs and send the names of your representatives
Tuesday November 29.
A review of the Team Lead and PBS job specs will be taking place and we would
like representatives from each Service Centre to participate in the working group.
There will be two groups one for the Team Lead and the second for the PBS.
Would like to have two individuals from each service centre to participate.
6. The review began in December 2011; however, on February 24, 2012 Ms. Lang
advised in an email that the review of job specs would be put on hold.
7. Had the job specs been properly updated it would have reflected the changes in the
roles and responsibilities since the change from WIN 8.3 to WIN 9.0. These changes
included (but are not limited to)
a. Team Leaders becoming part of the Control Group (Sept 2010), along with
Business Analysts from Business Support. As part of the Control Group the
Team Leads analyzed reports and worked with the BA’s to provide solutions to
system errors.
b. Team Leaders having knowledge of People Soft 9 modules and their impact
on each other (Payroll, Absence Management, Benefits Administration, Time
and Labour) to identify business issues/problems, develop technology solutions
and address implementation issues.
c. Team Leaders review reports daily and use their analytical skills to provide
the production team with best approach to resolve data integrity issues;
d. Team Leaders review Payroll Directives and are assigned to project teams to
do the following (not an exhaustive list): a) mass reorganizations; b) specialty
payouts AMAPCEO/SMG/Management Pay for Performance; implementation
of new collective agreements.
e. Project management is a significant portion of the job and is done daily.
f. Team leaders also look after the various agencies: Ontario Place; Auditor
General, St. Lawrence Parks Commission and Ontario Science Centre.
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g. Team Leaders have focused on understanding the complexity of WIN 9.0
system and how to improve Payroll Production and Business Processes by
using People Soft applications to do the following: merits, extensions, nightly
pay calculations, off-cycle cheques and dealing with the challenges of the AM
and Ben Admin modules.
h. Team Leaders also assist in brainstorming & discussing best practices and
identifying gaps and log tickets in CATS to identify issues and work with PBSB
to assist in solutions as well as prioritizing work order requests such as the
requirement for AM forecasting, restriction in size of numbers that can be
entered for an absence event and missing TLC codes.
i. Team Leads have thorough knowledge of the 14 day guide, use the reports to
review error message to identify training issues (ie. Incorrect entries in Job Data
fields). Team leads plan work strategies around the 14 day guide for when WIN
is unavailable, data entry priorities such as WEAR forms for Managers
requiring access, and to analyze and correct errors in a timely fashion in liaison
with PBSB and the other sites Control Groups on Day 14.
j. Team Leaders have also taken on the role of Project Planner for Year End
audit reports for past several years. They have taken the lead for their site in
collaboration with Managers and Business Support to obtain PEIR reports
timely, review exceptions and error messages, analyze explanations and discuss
action required to meet CRA standards. Team Leaders from all sites meet to
share results and priorities and directed the work strategy to make adjustments.
k. Team Leads review T4 Exception reports to ensure a positive outcome.
l. Team Leads also work closely with Senior Managers, PBSB, IT and
HREnterprise Resources on WIN issues and Data Quality Report requirements
such as a Compare Report that meets auditing standards, reports for missing
merit dates, employees on Leave with past expected returns dates.
m. Team Leads have a thorough understanding of all aspects of pay and
benefits and review Payroll Directives, Policies, and Procedures and interpret
extensively all Collective Agreements, Public Service Act, other relevant
legislation, Customer Service Standards, Delegation of Authority, and lead staff
on how to apply these to meet the goals.
n. Team Leaders lead units of eight pay and benefits staff with up to six more
during peak season. They delegate work and prioritize and identify training
needs. Team Leaders also lead specialty portfolios including: terminations,
retirements, surplus, resignations, deaths and benefit processing. They ensure
their teams is educated on eligible and ineligibles severance calculations,
surplus entitlements, how to accurately complete packages, pension documents,
and estate summaries. They are also subject matter experts on leaves of
absences and proved information sessions on topics such as Surplus Training,
Continuous Service Calculatin, etc and deliver information on entitlements,
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CRA rules around severance, Collective Agreements, seasonal rights and other
pay related questions.
8. Oct 4, 2012 it was announced that the PBPA position was created to
“streamline and improve processes and enhance front line delivery.
9. The Grievors allege that had their job specs been properly updated when WIN
9.0 was implemented their position would have been reclassified and they would
not have been subject to surplussing.
10. In the alternative, had their job specs been updated and their positions been
reclassified they would have been able to directly move into the PBPA position
without application.
11. In the further alternative, had their job specs been updated and their positions
been reclassified, the surplussing would not occur until the final quarter of 2013 at
the earliest and therefore they have been prematurely surplussed.
12. As set out below the Grievors each suffered individualized consequences
from the surplusing be it early retirement, transfer to a lower paying classification,
or having to compete for the PBPA position.
a. Ms. Sandra Dewnandan was bumped into a OAG 10 position in which she currently
earns less than her previous CCL 14 position. She alleges that her vacancy review was
not done properly and her desired remedy is that she be placed back in the Team Lead
position, with full back pay, or, in the alternative, that she be placed in another CCL 14
position or red circled as CCL 14 until retirement and $50 000.00 in damages.
b. Ms. Stella Cosentino was successful in the PBPA job competition; however
her desired remedy is damages
c. Ms. Rose DeJuan chose to retire earlier than she had planned and her desired
remedy is damages
d. Ms. Carol Pereira’s desired remedy is $250 000 for the 3 ½ years in loss of salary;
$3218.09 for life insurance payments and $576.69 in loss of severance pay. Ms.
Pereira is also seeking $50 000 in damages and for her termination payments to be
recalculated at the EO rate.
e. Ms. Antonietta Forchione was successful in the PBPA job competition; however
there was significant stress in being laid off and involved in applying for, preparing to
compete for, and ultimately competing for a position that she alleges that she should not
have had to compete for. Furthermore, she is now doing significantly more work. Ms.
Forchione is seeking $20 000 in damages for the above.
f. Mr. Reynaldo Ilagan’s desired remedy is $210 000.00 which would represent the 3
years salary that he has lost as retired 3 years earlier than anticipated.
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g. Ms. Florence Moonilal’s desired remedy is that she would like to be placed in the
PBPA position or another EO2 position or to receive the salary difference between her
current position and the EO2 position, all of which is retroactive to the date she was
place in her current role and $50 000 in damages
h. Ms. Halina Roznyslak was placed in a OAG 10 position as Pay and Benefits
Specialist and as a remedy is seeking to have the Team Lead position reinstated
effective April 24, 2013 or, in the alternative to have her salary red circled at the
Payroll Production Analyst/Team Lead position. She is also seeking $50 000.00 in
damages.
i. Ms. Tracy Anthony was successful in the PBPA job competition; however there was
significant stress involved in applying for, preparing to compete for, and ultimately
competing for a position that she alleges that she should not have had to compete for.
Sept 6, 2010 – present & would be at step 5 & is seeking $10 000 in damages
j. Ms. Charlene Greaves will be moving to a lower paid position on November 14,
2013 (her surplus notice was suspended during a sick leave). She is seeking $40 000 in
compensation to reflect the difference in the change in pay arising out of her moving to
a lower position.
k. Ms. Claudette James elected to retire, 3 years earlier than she had planned and her
desired remedy is the lost wages during that time period and the pension contributions
for a total of $333 596.27
l. Ms. Diana Guillemette is seeking to be assigned to the EO position along with full
back pay and any merit or across the board increases.
[3] I received supplementary submissions from the Union by email dated January 13,
2014. These submissions related to the surplussed employees who had elected to retire.
Employer counsel did respond to these supplementary submissions. I find it unnecessary to refer
to these submissions in this decision.
[4] The surplussing of the CCL 14 Team Lead jobs occurred within the context of a
reorganization within the Ministry across the province in various offices. There had been
twenty-four Team Lead positions. The Employer created thirteen higher paying EO2
Payroll/Benefits Production Analyst positions. After the competition process, the thirteen EO2
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positions were filled by persons who had held a Team Lead position. It is possible to describe
the surplussed Team Lead employees as falling within one of three categories. There are those
who were successful in obtaining an EO2 position. Of the remaining eleven employees, some
elected to retire. The others were able to move to lower paying positions. Some or all of the
employees in this later category have filed what can be described as competition grievances
which will be heard later.
[5] The Union referenced its position on these grievances in its particulars and further
clarified its position during its submissions. In essence, the Union’s position is that the duties
and responsibilities of the new E02 Payroll/Benefits Production Analyst job are the same as the
duties and responsibilities of the former CCL 14 Team Lead job. The Union argues that the
Employer was not entitled to surplus the employees in the Team Lead positions and to create
what is in effect the same job with a different title. The Union claims that these actions amount
to bad faith and contravene articles 2, 6 and 20 of the Collective Agreement. In addition to
referencing pages 569-570 in Ontario Public Service Employment and Labour Law, by Hadwen,
Strang, Marvy and Eady, Union counsel relied on the following decisions in support of her
submissions: OPSEU (Frisken) and Ministry of Labour (1997), GSB No. 2034/94 (Gray);
OPSEU (Union Grievance) and Management Board Secretariat (2001), GSB No. 0196/00
(Gray); OPSEU (Dobroff et al.) and Ministry of the Environment (2005), GSB No. 2003-0905 et
al. (Dissanayake); and, AMAPCEO (Chapman et al) and Ministry of Government Services
(2012), GSB No. 2011-0378 et al. (Dissanayake).
[6] Focusing on the particulars, Employer counsel took the position that the Union’s
challenge to the surplussing of the Team Lead positions did not disclose a breach of the
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Collective Agreement. Counsel also submitted that the grievances also appear to be
classification grievances which this Board does not have the jurisdiction to deal with. Counsel
also argued that the employees who elected to retire cannot seek damages for the time
subsequent to their date of retirement. Counsel for the Employer referred me to the following
decisions in support of his submissions: OPSEU (Belanger et al.) and Ministry of Community
Safety and Correctional Services (2006), GSB No. 1999-1782 et al. (Harris); OPSEU (Seguin et
al.) and Ontario Science Centre (2012), GSB No. 2010-1205 (Briggs); OPSEU (Dobroff et al.)
and Ministry of the Environment (2008), GSB No. 2003-0905 et al. (Dissanayake); OPSEU
(Abrosimoff) and Ministry of Community & Social Services (1992), GSB No. 1923/90 (Verity);
OPSEU (Wilson/Anastaskos et al.) and Ministry of Transportation (2001), GSB No. 0247/95 et
al. (Dissanayake); OPSEU (Rosamond) and Ministry of Citizenship, Culture and Recreation
(1998), GSB No. 2086/96 (Leighton); OPSEU (Giannou) and Management Board Secretariat
(1997), GSB No. 570/96 (Leighton); OPSEU (Bearry et al.) and Ministry of Transportation
(1996) GSB No. 1135/93 (Kaplan); and, Re Hamilton Health Sciences and ONA (2012), 223
L.A.C. (4th) 400 (Albertyn).
[7] Although I have only set out a concise summary of the submissions of counsel, I
note that I reviewed them in their entirety, including the authorities counsel relied on to support
the submissions. After considering this matter, I am not inclined to allow the Employer’s motion
to dismiss the grievances. Given this disposition, I will provide brief reasons for reaching this
conclusion.
[8] There is little doubt that the Employer is entitled to surplus an employee when the
employee’s job is eliminated. The Employer is then obliged to comply with the requirements in
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article 20 of the Collective Agreement. The Union is challenging the surplussing of all the
employees in this instance because it claims, in effect, that the Team Lead position had not been
eliminated but rather the position was simply given another title and a higher wage rate.
Contrary to the Employer’s position, it is certainly arguable that laying off employees from their
jobs while creating another job with the same duties and responsibilities constitutes an improper
lay-off contrary to the Collective Agreement.
[9] The Employer’s position on the remedy for the Team Lead employees who chose to
retire may have some merit. However, I agree with the Union’s position that it is better to first
deal with the merits of the grievances and then to see what remedy is appropriate, if any.
[10] For the foregoing reasons, the Employer’s motion to dismiss the grievances is
denied. This matter will continue as scheduled.
Dated at Toronto, Ontario this 23rd day of January 2014.
Ken Petryshen, Vice-Chair
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List of Additional Grievors
GSB NUMBER OPSEU FILE NUMBER GRIEVOR NAME
2012-3548 2012-5105-0012 Dewnandan, Sandra et al
2012-3549 2012-5105-0013 Cosentino, Stella
2012-3550 2012-5105-0014 De Juan, Rosanna
2012-3551 2012-5105-0015 Forchione, Antonietta
2012-3552 2012-5105-0016 Ilagan, Reynaldo
2012-3553 2012-5105-0017 Moonilal, Florence
2012-3554 2012-5105-0018 Pereira, Carol
2012-3555 2012-5105-0019 Roznyslak, Halina
2012-3560 2012-0669-0009 Guillemette, Diana
2012-3857 2012-0706-0006 Anthony, Tracy
2013-0489 2013-5105-0058 Moonilal, Florence
2013-0490 2013-5105-0059 Moonilal, Florence
2013-0506 2012-0706-0008 Greaves, Charlene
2013-0507 2012-0706-0008 Greaves, Charlene
2013-0509 2013-5105-0060 Roznyslak, Halina
2013-0510 2013-5105-0061 Roznyslak, Halina
2013-0511 2013-5105-0062 Roznyslak, Halina
2013-0618 2013-5105-0064 Dewnandan, Sandra
2013-0619 013-5105-0065 Dewnandan, Sandra