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HomeMy WebLinkAbout2011-0580.Sergeant.14-09-15 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#2011-0580 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Sergeant) Association - and - The Crown in Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Mandy Wojcik Sack Goldblatt Mitchell LLP Barristers and Solicitors Counsel FOR THE EMPLOYER Heather McIvor Ministry of Government Services Legal Services Branch Counsel HEARING March 28, 29, June 21, 22, August 9, 10, November 6, 7, 2012; March 27, 28, April 3, 4, 29, 30, May 3, July 2, 2013. - 2 - Decision [1] In a dispute dated October 1, 2010, Ms. B. Sergeant claims that she was treated unfairly by the Employer when it failed to assign her to a permanent 20APA position. On August 20, 2007, she commenced a temporary assignment as a Senior Consultant in a Program Analysis 19APA position. By letter dated June 14, 2010, her manager confirmed that her temporary assignment would end on June 27, 2010. Ms. Sergeant’s temporary assignment therefore lasted for thirty-four months. Based on its contention that Ms. Sergeant’s circumstances met the criteria in article 18.8.1(e) of the Collective Agreement, the Association takes the position that the Employer should have converted her temporary assignment to a permanent position. The Employer maintains that the circumstances of Ms. Sergeant’s temporary assignment did not oblige it to convert her 19APA position to a permanent position. [2] Article 18.8.1(e) reads as follows: 18.8.1 Vacancies may be filled without competition upon clearing surplus under the following conditions: (e) where an employee is temporarily assigned to a position for at least twenty- four (24) months and: (i) the position has been filled through a competitive process, and (ii) at that point in time, there is a continuing need for the work to be performed on a full time basis for greater than an additional twelve (12) months, and (ii) the position does not have a home incumbent. The Employer shall, with the employee’s agreement, assign the employee to the position on a permanent basis. If the employee does not agree, the Employer shall post the vacancy and the employee shall return to his/her home position. If at the end of twenty-four (24) months an employee was not offered an assignment to the position on a permanent basis because the conditions of - 3 - 18.8.1(e) were not met, but the position continues for 12 months, then the Employer shall, with the employee’s agreement, assign the employee to the position on a permanent basis at the conclusion of this 12 month period. If the employee does not agree, the Employer will post the vacancy and the employee shall return to his/her home position. [3] There is no dispute between the parties over the interpretation of the above provision. What is in dispute is whether the facts establish that the Employer was required to assign Ms. Sergeant to a permanent position. Given that she held her temporary assignment for more the twenty-four months, but for less than thirty-six months, the focus of the factual dispute is on whether the condition in (e) (ii) had been met. In other words, the central issue in this case is whether there was a continuing need for the work of Ms. Sergeant’s temporary position to be performed on a full time basis for greater than an additional twelve months beyond the initial twenty-four months of the assignment. [4] To support its position in this matter, the Association called as witnesses Ms. Sergeant and Ms. C. Dillman, the E-Channels Lead for Special Registration Projects. Ms. Dillman held that position until August 2009 when she then became an Acting Manager in the Registration Services Unit. Ms. Dillman had retired by the time she testified. In reply, the Association again called Ms. Sergeant, as well as Ms. E. Mesiti, a Dispute Resolutions Officer for the Association. The Employer called Ms. D. Adamczyk, Mr. B. Murphy and Ms. B. Lyman to testify. Ms. Adamczyk held three temporary managerial assignments during the relevant period. From April 2008 to June 2008, she was the Senior Manager, Special Registration Projects. From June 2008 to January 2010, she was the Senior Manager, Registration Programs. From January 2010 to October 2010, she was Manager, OHIP Eligibility Programs, Health Services Branch (“HSB”). Beginning in October 2010, Ms. Adamczyk held the permanent position of Program Manager, HSB. As of February 2010, Mr. Murphy was a Program Manager, - 4 - HSB. Ms. Lyman was an Acting Manager, OHIP Eligibility Programs, HSB. In addition to the oral testimony, fifty-nine documents were filed as exhibits in this proceeding. [5] The main witnesses were Ms. Sergeant, Ms. Dillman, Ms. Adamczyk and Mr. Murphy. Ms. Sergeant and Ms. Adamczyk were on the witness stand for five and four days respectively. Counsel required four days to make their final submissions. The main witnesses provided detailed evidence about the organizational changes taking place within the Ministry during the relevant period. They also provided extensive and detailed evidence about the work performed by Ms. Sergeant during the relevant period. Having carefully reviewed the considerable oral and documentary evidence and faced with the task of organizing the facts for writing this decision, I have a better appreciation of the challenges which confronted counsel in calling evidence and in making their final submissions. [6] For the most part, there were few factual conflicts. As counsel recognized, the dispute between the parties has to do primarily with the characterization of the work Ms. Sergeant performed while in the 19APA temporary position and whether there was a continuing need for that work to be performed. Since Ms. Sergeant had been in her temporary assignment for at least twenty-four months and given the condition in (e) (ii) of article 8.1.1, what is of particular significance is the nature and characterization of the work Ms. Sergeant performed during the third year of her temporary assignment starting August 20, 2009, and ending August 20, 2010, and whether there was a continuing need for the work of her 19APA assignment to be performed on a full time basis for greater than that twelve month period. The onus was on the Association to establish on a balance of probabilities that the condition in (e) (ii) had been met in the circumstances of this case. - 5 - [7] Counsel spent a lot of time during their submissions reviewing the detailed and somewhat complex evidence. Association counsel argued that the facts supported the Association’s contention that Ms. Sergeant continued to perform project work or work at or above the 19APA level for the year starting August 20, 2009, and beyond that year. She also submitted that, apart from the level of the work assigned to Ms. Sergeant, the facts illustrate that there was a continuing need for work to be performed at the 19APA level on a full time basis beyond the year at issue. Employer counsel argued that there was virtually no special project work for Ms. Sergeant to perform by the beginning of the third year of her temporary assignment. She also submitted that by at least March 2010, Ms. Sergeant was performing 18APA level work and that there was no continuing need for any 19APA level work to be performed. Employer counsel also argued that even if the facts establish Ms. Sergeant performed some 19APA level work beyond March 2010 or that there was some continuing need for that level of work to be performed after March 2010, there is no basis for a conclusion that there was a continuing need for the performance of that level of work on a full time basis. Counsel referred me to the following decisions: OPSEU (Mistry) and Ontario Human Rights Commission (1998), GSB No. 0669/96 (Verity); OPSEU (Union) and Ministry of Finance (1998), GSB No. 1237/98 (Briggs); OPSEU (Lynch-Burrus) and Ministry of Community and Social Services (1995), GSB No. 1078/92 (Dissanayake); OPSEU (Jennings) and Ministry of Revenue (1993), GSB No. 2228/91 (Stewart); OPSEU (Sinnathurai) and Ministry of the Attorney General (1997), GSB No. 749/96 (Briggs); OPSEU (Sopha) and Ministry of the Attorney General (1997), GSB No. 748/96 (Briggs); and, AMAPCEO (Wells) and Ministry of Revenue (2010), GSB No. 2008-1932 (Harris). - 6 - [8] I have carefully reviewed all the evidence and the submissions of counsel relating to the conclusions I should reach having regard to that evidence. In particular, I reviewed the organizational changes which took place within Registration Programs starting in 2008 and the impact of these changes, the relevant position descriptions, the relevant Performance Development Plans relating to Ms. Sergeant for the periods at issue and the work performed by Ms. Sergeant. Given that the dispute here is about whether the condition in (e) (ii) had been met, I particularly focused on the circumstances subsequent to August 20, 2009, which is when Ms. Sergeant began the third year of her temporary assignment. After reviewing this evidence in light of the submissions from counsel, it is my conclusion that the facts indicate that the condition in (e) (ii) had not been met in this instance, with the result that the Employer was not required to convert Ms. Sergeant’s temporary position into a permanent position. The reasons for this conclusion are as follows. [9] Ms. Sergeant has a continuous service date of July 18, 1984. She commenced working with the Ministry of Health and Long Term Care (“MOH”) on April 1, 2001. The two positions she held during her first six years with the MOH were in the Verification Services Unit, Registration Programs. The second position she held in this Unit was that of Senior Consultant (18APA), which she held from 2003 to 2007. This was Ms. Sergeant’s home position when she commenced the temporary assignment at issue. During the summer of 2007, Ms. Sergeant successfully competed for the temporary Senior Consultant 19APA position on the Special Registration Projects Team (“SRPT”). The posting indicated that the assignment would be for one year, with possible extension, and described the position as follows: The Special Registration Projects Unit, Registration and Claims Branch, Ministry of Health and Long-term Care, is offering a challenging opportunity for an individual to contribute to dynamic and high profile project(s) involving partner ministries exploring e-channel opportunities. Under the direction of the Business - 7 - Lead, you will assist/lead, co-ordinate and monitor strategic priorities; analysis and progress of project deliverables, including MOUs, SLAs, TRAs/PIAs; develop recommendation and implementation options; provide direction/supervision to staff within project environment. Your highly developed research analysis, change and issues management, interpersonal and communication skills will be challenged in preparing, presenting and evaluating proposals to senior management, internal and external partners and stakeholders, senior ministry and management staff. [10] A number of different functions relating to the registration of health cards were performed in Registration Programs as it was structured when Ms. Sergeant began her temporary assignment. Within the Eligibility Unit, there was a policy component, the business of health card registration and an appeals function. The Verification Services Unit was engaged in the validation and auditing of front counter health card registration transactions. The Registration Services Unit was involved with health and regulation policy. The employees in this Unit drafted policy and procedure manuals for the use of front counter staff during the registration process. [11] Apart from the program units, there were three project teams in Registration Programs in 2007. The Health Card Project Team was involved with the new production of health cards. The Registered Persons Data Base Sourcing and Integration Project Team (“RPDB Team”) was responsible for working on strategic data sourcing projects involving the MOH and other agencies seeking to use data of the RPDB. The RPDB contains basic and medical information of individuals with health cards. The RPDB Team would work with agencies such as the Trillium Gift of Life Network (“TGLN”) and E-Health to provide them with the data they required, while at the same time protecting the integrity of the data and the security of the RPDB. The other project team was of course the SRPT. The projects undertaken by the SRPT were distinct pieces of deliverable work that were intended to assist in the modernization of the - 8 - business process for health card registration. The e-channels aspect of the SRPT involved projects with this objective, but with obviously an e-channels focus. The SRPT undertook projects that were usually multi-ministry with high pressure and tight time lines. The projects had specific deliverable work with a start and end date. This project work is in contrast to regular ongoing program work, although program work can also include pieces of work with a start and end date, with tight time lines. A special project undertaken by the SRPT was completed once the system based initiatives were transitioned back to a program unit, again with the expectation of an improvement to the business of health card registration. Given the uncertainty of funding and how long projects would last, project teams were staffed usually by employees on temporary assignments. [12] As Ms. Sergeant began her temporary assignment in August 2007, the MOH was in the process of changing its mission and mandate. The plan was for the MOH to be less involved in the actual delivery of health services and instead carry on a stewardship role – a more strategic policy and planning role. The new mandate would result in shifting the delivery of health care to the local level and a restructuring from a program to a functional design. The process of change started in 2007 when 2/3rds of the MOH budget was transferred to Local Health Integration Networks. The restructuring process in Registration Programs began in 2008 and was completed in 2010. The process involved transferring services and functions to ServiceOntario, a part of the Ministry of Government and Consumer Services. ServiceOntario was designed as the retail expert for front service retail delivery of different ministry services, including health services. [13] The restructuring in the relevant sections of the MOH took place in four phases. The first phase involved the transfer of health card registration services, support functions and - 9 - employees to ServiceOntario. This meant that the entire service delivery network of health card counters, the 24/7 help desk, data validation and Verification Services were transferred to ServiceOntario. Approximately 570 employees moved from the Registration and Claims Branch and another branch to ServiceOntario. Certain policy development and strategic planning roles with respect to registration were retained in Registration Programs. The transfer target date for the phase 1 restructuring was April 21, 2008. Phase 2 involved the transfer of Call Centre functions to ServiceOntario effective July 2008. Additional client registration functions were transferred to ServiceOntario in phase 3 of the process. Included in the transfer was the client registration system which counter staff use to register clients by adding relevant information to the RPDB. Also transferred to ServiceOntario in phase 3 was the entire Health Card Project Team. The staff on the team moved to ServiceOntario in their temporary assignments. Once the deliverables were completed in approximately six months, the Health Card Project Team was disbanded and everyone on the team went back to their home positions. A total of 24 staff was transferred in phase 3 with the transfer effective November 17, 2008. [14] The fourth and final phase of restructuring occurred in January 2010. Essentially this phase consisted of placing the stewardship functions that remained within a new organizational structure. Registration Programs was eliminated and the functions that remained were placed in two new branches, the HSB and the Health Data Branch (“HDB”). The effective transfer date to this new structure was January 4, 2010. OHIP Eligibility Programs was moved to the HSB. This Unit would focus on policy development, legislative and regulatory changes as required, appeal functions and managing appeals in front of an independent board. The custodianship of the RPDB was to transition to the HDB. The number of positions assigned to each branch initially represented an estimate based on planning assumptions about the work to be - 10 - undertaken. A Full Time Equivalent (“FTE”) position represents a permanent home position. The initial estimate was for 31 FTE positions to move to the HSB and for 4 FTE positions to move to the HDB. The majority of the temporary assignments went to the HSB. The organizational chart for the newly created HSB did not reference a SRPT. [15] The Corporate Transition Team (“CTT”) used the process of position matching to assign positions to managerial and bargaining unit employees in the new structure. The CTT had management and Association representation. The new structure did not have the same classifications as the former structure. In addition to management classifications, the new structure had an EO1 classification as well as 18 and 20 level classifications. In contrast to the former structure in Registration Programs, the HSB and the HDB did not have 17 and 19 level classifications. Guided by HR transition staffing principles applied in other divisional transitions, the CTT matched job functions from positions in the previous structure to positions in the new structure. The mapping process dealt only with home positions. The local management did not have any input into which position an employee would be mapped in the new structure. An employee who was not matched to a position in the new structure would have the opportunity to compete for any vacant positions. The new structure for OHIP Eligibility, HSB, had an estimated twelve 20 level positions, but there were no employees who mapped into these positions. Management initiated the approval process in order to have these positions filled by the usual competition process. [16] The elimination of Registration Programs and the creation of the new stewardship structure in a relatively brief period of time had a considerable impact on employees and the work they performed. The previous review of what occurred during restructuring provides the - 11 - context for examining the general nature of the work performed by Ms. Sergeant during her temporary assignment on the SRPT and how her assignment was affected by the restructuring. [17] As noted previously, Ms. Sergeant was in her home position of 18APA Senior Consultant before she began her temporary assignment on August 20, 2007. The work of her home position in Verification Services consisted of the verification of data with respect to health cards. She had a leadership role over validation staff that were at a lower level. The work of the Unit included taking information that came in via the Fraud Line and verifying it. She also oversaw a data sharing agreement that the MOH had with the Ministry of Citizen and Immigration. The data verification functions of her home position required working with the RPDB. Ms. Sergeant estimated that she spent 80% of her time as an 18APA Senior Consultant on operational or program work and 20% on project work. [18] When Ms. Sergeant joined the SRPT, Mr. B. Wright (21APA) was its excluded Senior Manager. The SRPT had an E-Channels section and a Counters section. As the E-Channels Lead, Ms. Dillman (20APA) reported to Mr. Wright, as did the Counters Lead. In her temporary 19APA position, Ms. Sergeant took direction from Ms. Dillman, as did the other members of the SRPT who were in positions at a lower classification level. On any given special project, each team member performed the work of their classification. The number of persons on the SRPT depended on the amount of work the team had at any given time. Given that Ms. Dillman was Ms. Sergeant’s aunt, thereby creating a potential conflict of interest, the Deputy Minister was consulted and approved their working relationship. - 12 - [19] Under the direction of Ms. Dillman, Ms. Sergeant worked on the Enterprise Public Self-Serve Appointment Booking System (“EPSABS”) project and the Kiosk Renewal project. These are two projects that consumed a fair amount of time for the members of the SRPT. By the Spring of 2008, the work of the SRPT was reprioritized. Given that it had some capacity to take on additional work, the SRPT was assigned certain transition work to perform. In addition to continuing to work on the Kiosk Renewal project with ServiceOntario and the EPSABS project, the SRPT assisted with the transfer of health card registration work to ServiceOntario. With Mr. Wright moving to another Ministry, Ms. Dillman as E-Channels Lead began reporting directly to Ms. Adamczyk. [20] With the transition of Verification Services to ServiceOntario during the first phase of restructuring, Ms. Sergeant’s 18APA home position was moved to Registration Services. In June 2008, her home position was moved to the Eligibility and Portability Services Unit. [21] By August 2008, the first year of Ms. Sergeant’s temporary assignment was about to end. After assessing what special project work remained for the SRPT and the transition work that was still to come, Ms. Adamczyk felt that Ms. Sergeant would likely be needed as a resource on the SRPT for one more year. Ms. Sergeant’s temporary 19APA assignment on the SRPT was therefore extended for one year. [22] Ms. Sergeant’s temporary assignment was next reviewed in August 2009. By this time the restructuring had had a significant impact on special registration projects. As noted previously, the project work of the SRPT was related to the efficient delivery of heath card registration services and its purpose was to improve the operation of the program area. After - 13 - completion of phases 1 and 3 of the 2008 restructuring, the program work of health card registration had moved to ServiceOntario. Once the program area for registering health cards moved to ServiceOntario, there was no longer a need for the SRPT. By August 2009, basically all of its projects had been completed but for some knowledge transfer work. There certainly would not be any more large pieces of special project work in the future for the SRPT. There continued to be some transition work to complete, but even this was winding down with an end in sight. As the work for the SRPT diminished, members of the team moved to other positions. In August 2009, Ms. Dillman left the SRPT and became Acting Manager of the Registration Services Unit. The organization chart for Registration Programs dated August 31, 2009, indicates that Ms. M. Fotherby was temporarily assigned as the E-Channels Lead on the SRPT. This organization chart no longer has a Counters section as part of the SRPT because the front counters had transitioned to ServiceOntario in 2008. Having regard to her assessment of the future work that would be available to Ms. Sergeant in her temporary 19APA assignment on the SRPT, Ms. Adamczyk extended Ms. Sergeant’s temporary assignment for only one month. When Ms. Sergeant came to see her about the short extension Ms. Adamczyk told her that the work situation was being reviewed post transition and that her temporary assignment was also under review. [23] What followed after the one month extension of Ms. Sergeant’s temporary 19APA assignment in August 2009 was a series of primarily one month extensions which culminated in a final extension for three months, ending her temporary assignment on June 27, 2010. Ms. Adamczyk made these further short extensions for a number of reasons. In the fall of 2009, there was an FTE freeze and a direction not to make changes to temporary assignments as the last phase of restructuring was being planned and as the CTT was engaged in the mapping process. - 14 - When the FTE freeze came off in January 2010 and changes could be made to temporary assignments, there was an effort to manage the considerable change taking place seamlessly, with the hope that the approvals to post the 20 level positions would come sooner rather than later. There was an attempt to avoid abrupt changes with the creation of the new structure, particularly given that there were a large number of employees on temporary assignments. The work was being assessed and changes made with some sensitivity to the uncertainty created by a significant restructuring. [24] By the later part of 2009, there was just Ms. Fotherby and Ms. Sergeant left on the dying SRPT. Ms. Fotherby was performing her lead role in program policy work and she continued to be involved in some transition work. Given their role in transition work, Ms. Adamczyk felt that it made sense to bundle Ms. Fotherby and Ms. Sergeant together. [25] By letter dated January 14, 2010, Ms. Sergeant was advised that a match had been found for her in the new structure. Her home position, effective January 25, 2010, was Program Analyst (18APA) in the Portability Policy and Integration Unit (“PPI Unit”) within OHIP Eligibility Programs, HSB. Given that her previous home position was titled Business Consultant (18APA), that she had worked hard to be a Consultant and that her temporary position was at a 19APA level, Ms. Sergeant felt that her new home position was somewhat of a downgrade. She was also advised in the January 14, 2010 communication that her temporary assignment would continue and that as of January 25, 2010, she would report to the Program Manager for the PPI Unit. Ms. Fotherby’s temporary 20APA assignment also continued. In the new structure, Ms. Fotherby reported to the Program Manager, Policy and Standards Unit (“P&S Unit”) in OHIP Eligibility Programs. - 15 - [26] Management had been communicating with staff at each phase of the restructuring about the changes that were about to take place and how those changes would affect the staff. This was particularly the case for the final phase of restructuring which occurred in January 2010. Ms. S. Pinney, Acting Director, Registration & Claims Branch, led a meeting on January 14, 2010, attended by all bargaining unit employees and managers, in which she provided information about the new structure. On the following day, Ms. P. Ryan, Director of HSB, led a meeting to provide information about the newly created HSB. Ms. Sergeant testified that Ms. Dillman had told her that there was a lot of work and that management had been indicating to the staff that they should not worry about their jobs because there was a lot of work. Ms. Sergeant also indicated that she understood from Ms. Dillman, from management and from other sources that there was plenty of special project work for the SRPT. Ms. Adamczyk denied that management had made any such representations during its communication with staff during the restructuring process. To the extent that there is a conflict in the evidence on this point, I find that the testimony of Ms. Adamczyk is to be preferred. When Ms. Dillman was asked about such representations in her evidence-in-chief, she indicated that management had conveyed the message that restructuring was not a job cutting exercise and that there was a lot of transition work to complete. She also indicated that management had told her that there was a lot of special project work to do when she was on the SRPT, before restructuring. Her testimony did not substantially conflict with the testimony of Ms. Adamczyk on this point. Management did tell employees that the restructuring process was not a job cutting exercise. Its communications to employees was intended to allay any fears employees may have had as a result of going through a period of considerable change. The general message from management was simply that change was coming, that it would be assessing the work that remained and that it would attempt to make the transition as smooth as possible, without making any guarantees about the - 16 - amount of work that would remain in the new structure. The specific message management was sending about the SRPT from late 2009 and following was that its days were numbered. As noted previously, the organization chart that captured the restructured HSB in 2010 did not have a place for the SRPT, reflective of the fact that it no longer existed. [27] Although she could not recall the meeting, Ms. Sergeant did meet with Ms. Adamczyk after the conclusion of the January information sessions because she wanted to ask about the status of her temporary assignment. Ms. Adamczyk told her when they met that OHIP Eligibility Programs would no longer have the special project work that had previously been performed by the SRPT. She told Ms. Sergeant that her temporary assignment would not end abruptly, but that it would likely end in a couple of months. Ms. Adamczyk also advised Ms. Sergeant that she hoped she would soon be able to post the 20 level positions and she encouraged Ms. Sergeant to apply for one of them. [28] Ms. Adamczyk’s plan to get quick approvals to post the 20 level positions in OHIP Eligibility Programs did not happen. Approval to post for one of the 20 level positions did not come until late 2011. The successful applicant, Ms. M. Stewart, was assigned to the position in early 2012. There may have been three other 20 level positions in other areas that were approved. Ms. Sergeant did not apply for any of the level 20 posted positions. [29] When the new organizational structure was introduced in early 2010, Ms. Fotherby held the only level 20APA bargaining unit position in OHIP Eligibility Programs. Her work in the P&S Unit involved policy development and analysis, and included tasks associated with the transition of the custodianship of the RPDB to the HDB. In her temporary 20APA position she - 17 - continued to perform a leadership role by directing and reviewing the work of 18APA level and other staff working in her Unit. Ms. Sergeant’s work continued to be linked in the new structure to Ms. Fotherby. [30] It was not until February 2010 that some of the managers for the Units in OHIP Eligibility Programs were selected. Ms. Dillman became the manager of the PPI Unit and Mr. Murphy became the manager of the P&S Unit. As noted previously, Ms. Sergeant’s home position in the new organizational structure and her temporary assignment was in the PPI unit. Given the increasing sensitivity to the issue of family members working together and the fact that Ms. Dillman was now the Manager of the PPI Unit, Ms. Sergeant was advised in early February 2010 that she would now report to Mr. Murphy in her temporary 19APA assignment and that her home position was moved to the P&S Unit under Mr. Murphy as well. The plan from here on was to have Ms. Sergeant continue to work with Ms. Fotherby and to link her further into the program work of the P&S Unit. At the time Mr. Murphy became Ms. Sergeant’s manager, Ms. Adamczyk and Mr. Murphy discussed the work Ms. Sergeant was doing, the fact that that work would soon come to an end and assigning her the program work of the P&S Unit. [31] In late March 2010, Ms. Sergeant’s temporary 19APA assignment on the SRPT was renewed for the final time. This prompted Ms. Sergeant to again ask some questions about the status of her temporary assignment. She first spoke to Mr. Murphy about this and then soon thereafter she raised her concerns at a meeting on April 14, 2010, with Ms. Adamczyk and Mr. Murphy. Ms. Sergeant essentially asked why her temporary assignment was not being converted into a permanent position and she asked, by naming some individuals, why she was being treated differently from other employees on temporary assignments who were converted. Ms. - 18 - Adamczyk again explained why there would not be any SRPT work in the future, given the movement of health card registration services to ServiceOntario. She reiterated that Ms. Sergeant’s temporary assignment would come to an end near the end of June 2010. Ms. Adamczyk told her that the circumstances of her temporary assignment did not meet the conditions for conversion to a permanent position under the Collective Agreement. Ms. Adamczyk told her that she was unaware of the circumstances of the individuals Ms. Sergeant said had been converted to permanent positions, but that Ms. Sergeant had to focus on her own situation. Ms. Adamczyk again encouraged Ms. Sergeant to apply for the 20 level positions when they were approved for posting. When she was asked during her testimony as to whether Ms. Sergeant had raised any concerns about the mapping process, Ms. Adamczyk responded that she was not aware that Ms. Sergeant had any such concerns until it was raised at the hearing. Mr. Murphy testified similarly on this later point. Ms. Sergeant however testified that she did raise a concern during the April 14, 2010 meeting about the home position selected for her in the mapping process and indicated that she had asked Ms. Adamczyk why she did not move to the HSB. Ms. Sergeant testified that Ms. Adamczyk explained the mapping process to her and told her that local management was not involved in selecting a home position for her in the new structure. Ms. Sergeant also testified that she took her concerns about the result of the mapping process to the Association which in turn raised the matter with the CTT, but that no change was made to her home position. [32] It is worth commenting at this stage about two matters that arise from the testimony about the issues discussed at the April 14, 2010 meeting. Ms. Sergeant raised the issue during her testimony as to whether she was treated in the same way as others who were on temporary assignments and she did mention the names of certain persons who she believed were converted. - 19 - Her information about whom and when employees were converted was based essentially on hearsay. It is difficult to determine from the Association’s evidence as to which if any employees were converted to permanent positions and the basis upon which they were converted. There is simply no evidence to support the conclusion that Ms. Sergeant was treated differently than others who were on temporary assignments. Employees who were on temporary assignments before the final phase of restructuring remained on those assignments when the final phase of restructuring took place, including the employees on the RPDB Team who moved to the HDB. The one possible exception to the general treatment of employees on temporary assignments was Ms. C. Pettis, who was on maternity leave at the time. Ms. Pettis was advised that her temporary assignment had ended and that she would return to her home 18APA position after her maternity leave. There is no basis for concluding that an employee on a temporary assignment was converted to a permanent position without meeting the conditions for conversion set out in the Collective Agreement. In other words, there was no one in the same situation as Ms. Sergeant who was converted to a permanent position. [33] The other comment relates to the suggestion that Ms. Sergeant should have been matched to a different home position or that her temporary assignment should have moved to the HDB. It is unnecessary to decide whether Ms. Sergeant raised a concern about the home position selected for her during the mapping process at the meeting on April 14, 2010, because whether she did or not and whether she was properly matched to a home position are irrelevant for purposes of this proceeding. The first obvious point worth noting is that Ms. Sergeant’s grievance is a conversion grievance. It does not reference a concern about the home position selected for her by the mapping process or a concern about where her temporary assignment was placed. There was a process available to employees to raise a concern about the mapping - 20 - process, and it appears from her testimony that Ms. Sergeant utilized that process. Ms. Adamczyk testified that the process did not include a right to file a grievance and her testimony on this point was not contradicted. In any event, having heard the considerable amount of evidence in this case, I would have been surprised if Ms. Sergeant had been matched to a position outside of OHIP Eligibility Programs, HSB, or if her temporary assignment had been moved to the HDB. Although some of her work was related to the RPDB, there were others who also performed work in relation to RPDB, including Ms. Fotherby, who also ended up in OHIP Eligibility Programs, HSB. The individuals on temporary assignments who moved to the HDB were those individuals who were on the RPDB Team. As opposed to Ms. Sergeant, they had more direct experience in managing the data on the RPDB and the outsourcing of that data, such that it was a natural fit for them to move to the HDB. [34] With the end of her temporary assignment on June 27, 2010, Ms. Sergeant moved to her home position as Program Analyst 18APA. Ms. Sergeant was absent from the workplace for some of July and most of August and September 2010 because of vacation and a leave of absence. Ms. Sergeant was notified on September 22, 2010, that her home position was being transferred to the Business Integration Services Unit (“BIS Unit”) following a review of business needs within the branch. The effective date for the transfer of her home position was October 4, 2010. [35] The final significant area to explore is the nature of the work performed by Ms. Sergeant within the new structure beginning in January 2010. When asked if anything had changed in regards to the work she performed during the last six months of her temporary assignment, during her time at work when she returned to her home position on June 28, 2010, - 21 - and during her initial months in the BIS Unit, Ms. Sergeant indicated that nothing had changed. Ms. Sergeant’s perspective is essentially that she continued to work on projects and on work at a 19APA level. In my view, the evidence demonstrates quite clearly that Ms. Sergeant spent the vast majority of her time performing 18APA level work in both OHIP Eligibility Programs and in the BIS Unit. And any project work she performed was not special project work, but the type of project work that is typically performed within a program area. As Mr. Murphy described in his evidence and, as Ms. Sergeant is aware from her experience in Validation Services, it is not uncommon for project work to be performed by program staff without a change in their classification. This work can have a start and end date. It is the kind of work that is different from the regular program work and is best organized on a project basis, but not the recurring type of work that warrants a permanent project team. To simply describe certain work as project work does not by itself indicate a particular classification level or that the work has any similarity to the special project work performed by the SRPT. [36] As noted previously, Ms. Fotherby was the only 20APA level employee in the P&S Unit in OHIP Eligibility Programs. For the first two months after the creation of the HSB, she reported to Ms. Adamczyk. Given her managerial role, Ms. Adamczyk was in a position to comment on the work performed by Ms. Sergeant during the initial months of 2010. Mr. Murphy became Ms. Sergeant’s manager in February 2010. By at least early March 2010, after he attended to setting up the new P&S Unit, Ms. Fotherby started reporting to Mr. Murphy and he became more involved in assigning the work of the Unit directly or through Ms. Fotherby. Mr. Murphy was therefore in a position to give direct evidence about the various pieces of work performed by Ms. Sergeant from March 2010 until her home position transferred to the BIS Unit. Mr. Murphy testified in some detail about the work Ms. Sergeant performed and he explained - 22 - how a particular piece of work fit into the 18APA job description. It is unnecessary to describe in detail all of the work performed by Ms. Sergeant during this relevant period as described by Ms. Adamczyk, Mr. Murphy and Ms. Sergeant. However, in order to provide a more detailed example of the work performed by Ms. Sergeant, I will comment on her work on the internet pages review. [37] The Communication and Information Branch initiated a divisional review of on line content. Each branch within the division was responsible for reviewing its internet content to ensure that the information on the web pages was up to date and accurate. Mr. Murphy selected Ms. Sergeant to review the 35 web pages for OHIP Eligibility Programs because he believed that it would be a good introduction to program area content for someone who was still relatively new to the Unit. This type of review is not uncommon. A regulation change in 2009 prompted a review of the web pages to ensure the accuracy of the information in light of the change. Ms. Sergeant started the assignment near the end of June 2010 and the divisional review was completed sometime in 2011. Ms. Sergeant spent a considerable amount of her work time on this assignment. She printed out the relevant web pages, reviewed them, consulted with other staff, including Subject Matter Experts, and then made the necessary changes to the web pages. When Ms. Sergeant was moved to the BIS Unit she continued work on the internet pages review, but her work on the initiative related to that Unit. The BIS Unit had a corporate role to play in upgrading web content. Mr. Murphy replaced Ms. Sergeant with Ms. L. McGriskin (18APA) to complete the internet content review for OHIP Eligibility Programs. Mr. Murphy described how the work performed by Ms. Sergeant on the internet review fit within the job duties of the 18APA Position Description. Whether or not one characterizes this work as a project, I agree - 23 - with Mr. Murphy’s assessment that the work Ms. Sergeant performed on the internet pages review was 18APA level program work. [38] Mr. Murphy and to a lesser extent Ms. Adamczyk described other pieces of program work at the 18APA level performed by Ms. Sergeant, such as: the extension of the agreement between Citizenship and Immigration Canada and the MOH (which was started by Ms. L. McGriskin (18APA) and then assigned to Ms. Sergeant because Ms. McGriskin was busy with other matters); updating of briefing notes for the Director of OHIP Eligibility Programs; Health Care Connect work; and, Convention and Refugee work. There was also the work she performed in relation to the transfer of the custodianship of the RPDB from the HSB to the HDB. Ms. Fotherby was primarily involved in this transfer work, but Ms. Sergeant played a role as well. The main part of her role was to collect all of the relevant documentation from the area, such as data sharing agreements, and place them in a binder to go over to the HSB. Ms. Sergeant would also during this period get requests for information about matters that she had previously been involved with, such as the transfer of the custodianship of the RPDB or even matters involving her work on the SRPT. It is not uncommon that these knowledge transfer type of enquiries arise after the completion of certain work. I again agree with the Employer’s assessment that all of these pieces of work fall within the 18APA Position Description. [39] One final matter to address is the subject of organ donation work which was the focus of much evidence. Registration Programs had a long history of dealing with organ donation given that organ donor preference was linked to health cards and the RPDB. This continued with the creation of the TGLN as a government agency in 2002. One natural goal of TGLN is to increase organ donations. An MOH internal document updated February 6, 2009, - 24 - entitled “Organ Donation Strategy – Outstanding Deliverables/Work Plan” (“OD Strategy”) contains a wish list of items that the TGLN wanted to accomplish. The OD Strategy was a way for the MOH to assist the TGLN with organ donations. The SRPT played a role with the Affirmative Registration – Suppression of No’s phase of the OD Strategy. Both Ms. Dillman and Ms. Sergeant were involved in that phase. Phase 3 of the OD Strategy involved the creation of an organ donor registry for the registration of organ donor preference on line. As reflected in an email dated January 26, 2009, from Ms. Dillman to Ms. Adamczyk, Ms. Dillman and Mr. Murphy attended a preliminary meeting to discuss the on line registry. Ms. Dillman reported that it did not appear that there would be much work for their branch to do for phase 3. The major players were ServiceOntario and the TGLN, with the Provincial Programs Branch in charge of funding. The initial target for implementation of the on line registry was January 2010. It appears that this was pushed back because the on line donor registry was not created until at least late 2011. Ms. Sergeant did some very preliminary work in relation to the on line registry and claims that the project was moved to the HDB. Ms. Adamczyk testified that the HSB had no further involvement with the on line donor registry after the January 2010 transition and that there was nothing to move to the HDB because, as far as she was aware, funding for the online registry had not been approved. The Association and Ms. Sergeant used the on line donor registry work as an example of 19APA work that could have been performed by Ms. Sergeant, but for the fact that the work had been transferred to the HDB. [40] The evidence was quite speculative as to which groups performed what work to create the on line donor registry. It appears that employees in the HDB did some work on the on line registry, given that one HDB employee won an Amethyst Award for her participation in setting up the donor registry. What is clear however is that the HSB no longer performed any - 25 - additional work on the on line registry. Even if the work which the Association argued was moved from the HSB could be considered project work or 19APA work, there is nothing in the Collective Agreement which precludes the Employer from organizing the work in a manner which it considers to be most efficient. The fact that Ms. Sergeant could have performed work relating to the on line donor registry that ultimately was performed in another branch does not assist the Association in establishing that the work of her temporary assignment continued for more than an additional twelve months. Even if any of the work that was transferred to the HDB from OHIP Eligibility Programs was relevant to the issue of continuing need, it is clear that the amount of that work would not have kept Ms. Sergeant occupied on a full time basis. [41] In summary, the facts demonstrate the following reality. Ms. Sergeant’s temporary 19APA assignment was on the SRPT. With the movement of the registration of health card services to ServiceOntario, there was no longer a need within a restructured HSB for the type of special projects the SRPT had performed. In other words, the type of special project work Ms. Sergeant was to perform on her temporary assignment no longer existed after restructuring. This was apparent by the time she reached the twenty-fourth month mark of her temporary assignment. The repeated extensions after August 2009 while her temporary assignment was under review were not a result of a continuing need to perform SRPT work or 19APA work, but initially because of a direction not to make changes to temporary assignments and subsequently because of a desire to avoid abrupt changes to temporary assignments when significant change was the order of the day with restructuring. Within the new structure of the HSB and HDB, there was no longer a SRPT and there were no longer any 19APA positions. Essentially, there were only a 20 level position that provided a leadership and oversight role and there were 18APA positions. As of January 2010 under the new structure, Ms. Fotherby was the - 26 - only person in a 20 level position in the P&S Unit performing that leadership and oversight role. Ms. Sergeant did not perform such a role nor did she otherwise perform 20 level work. By at least March 2010, Ms. Sergeant spent the vast majority of her time performing 18APA level work. She performed such work up to the time her temporary assignment ended on June 27, 2010, during the time she was back in her home position and when she was placed in the BIS Unit. There is simply no basis to conclude that there was a continuing need for SRPT work or other 19APA level work to be performed on a full time basis for more than an additional twelve months from the time Ms. Sergeant had been in her temporary assignment for twenty-four months. [41] Ms. Sergeant clearly made a significant contribution while in her temporary assignment on the SRPT. However, having regard to the above factual determinations and the conditions for conversion set out in article 18.8.1 (e) of the Collective Agreement, Ms. Sergeant’s dispute dated October 1, 2010 is hereby dismissed. Dated at Toronto, Ontario this 15th day of September 2014. Ken Petryshen, Vice-Chair