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HomeMy WebLinkAbout2013-3219.Union.15-11-09.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#2013-3291, 2015-1003 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 (Union) Association - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Marissa Pollock Goldblatt Partners LLP Counsel Ryan Newell Goldblatt Partners LLP Counsel FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel HEARING July 20, October 29, 2015 - 2 - Decision [1] The Board is seized with two policy disputes relating to the interpretation and application of the recognition clause, article 1.1 of the collective agreement. That article is unusually detailed and complex. However, for purposes of this decision it suffices to note that one of the exclusions specified therein is described as “those employed in HR Ontario including Regional Service Delivery Centres and Strategic HR units.” (“The HR Ontario exclusion”). [2] The first dispute (File 2013-3291) claims that the employer moved to HR Ontario certain individuals who hitherto had been included in the bargaining unit, and relying on the HR Ontario exclusion, has treated them as excluded. The parties agreed to defer this grievance, and to proceed first with the second grievance in file 2015-1003. [3] In a nut-shell, the dispute in file 2015-1003 is as follows. HR Ontario came into existence in 2008. At that time, the parties agreed to the HR Ontario exclusion. That resulted in the exclusion of in excess of one hundred individuals from the bargaining unit. In 2014 the employer undertook a restructuring of its human resources function. The Ministry of Government Services (“MGS”) and HR Ontario no longer existed. The human resources function was now shared between a new Ministry of Government and Consumer Services, and a new entity the Treasury Board Secretariat (“TBS”). Certain individuals who had been previously excluded under the HR Ontario exclusion were moved to the TBS. The employer continues to treat those individuals as excluded from the bargaining unit relying on the HR Ontario exclusion in the recognition clause which still exists in the collective agreement. [4] AMAPCEO takes the position that the individuals in question are no longer “employed in HR Ontario”. Since HR Ontario no longer exists, there could not be anyone employed in HR Ontario and there could be no exclusions under the HR Ontario exclusion. That exclusionary language is now meaningless and any - 3 - exclusions must be based on the Crown Employees Collective Bargaining Act or some other exclusion in the recognition clause. [5] This decision relates solely to the disagreement between the parties as to the order of proceeding and the location of the legal onus in litigating this dispute. AMAPCEO’s ultimate position is that the legal onus of proving that the individuals are excluded from the bargaining unit should be on the employer, and that the employer should proceed first. However, Counsel submitted that it was not necessary for the Board to decide the location of the onus “up front”. Instead, the Board should reserve on that to be decided after it has received all of the evidence and submissions. [6] The employer took the contrary position on both issues. It is submitted that the general rule that the party alleging a contravention of the collective agreement has the burden of proving the alleged violation should apply, and this should be determined as a preliminary matter. It was further submitted that AMAPCEO, as the party bearing the onus of proof, must be required to proceed first. [7] It is fair to say that in the majority of cases the order of proceeding follows the burden of proof. However, onus and the order of proceeding are two different matters. Regardless of where the legal onus resides, consideration of efficiency, practicability, and most importantly fairness, may make it appropriate for the responding party to be required to proceed first. [8] While employer counsel requested that the issue of onus be determined as a preliminary matter, he did not point to any advantage to be gained by doing so, or to any prejudice resulting from deferring the matter to the end. The facts in this case are unique. At this stage at least, the employer is not relying on the duties and responsibilities of the particular individuals as the basis for their exclusion. Rather, it relies on the HR Ontario exclusion language, although an entity called HR Ontario no longer exists. In these unique circumstances, the Board is not inclined to decide the onus issue in the abstract without any - 4 - evidence. As the issues and the positions taken by the two parties become clear as the hearing progresses, it is possible that there may be some shifting of the onus or the onus may be on different parties on different issues. The Board would be in a much better position to make those decisions once it has heard all of the evidence. It is also possible that the ultimate disposition of the dispute may not turn on who has the onus. Therefore, it is premature at this stage to decide that the onus resides in one or the other of the parties. If, after all of the evidence and submissions are received, and the outcome turns on which party bears the onus, the Board will be in an informed position to make the decision. [9] With respect to the order of proceeding, I was referred to numerous authorities that recognize exceptions to the general rule that “he who asserts must prove” and must proceed first. One of the exceptions arises where the knowledge of the relevant facts resides exclusively or primarily with the other party. This exception has been particularly applied where the employer seeks to exclude employees from an “all employee” bargaining unit. (See, Re Spar Aerospace Ltd., (1994) 40 L.A.C. (4th) 215 (H.D. Brown). [10] Employer counsel pointed out correctly that this is not a case where the employer is seeking to exclude individuals from an all employee bargaining unit. Nor is it relying, at this stage, on the duties and responsibilities of the individuals as the basis of the exclusion. Rather, it was relying on an assertion that the individuals come within the exclusionary language “employed in HR Ontario”. He submitted therefore, that the relevant facts are those relating to the restructuring of the employer’s human resources function, and not the particular duties and responsibilities of the individuals. Counsel conceded that if the Board rejects its reliance on the HR Ontario exclusion, and the employer seeks exclusion on the basis of the individuals’ duties and responsibilities, it would be obliged at that stage to proceed first. However, the proceeding has not reached that point yet. - 5 - [11] Counsel submitted that in relation to the relevant facts i.e. the restructuring of the employer’s human resources function, the employer has no “unique” knowledge. He submitted that the duties and responsibilities of the individuals did not change following the elimination of HR Ontario. The only change is that they now report to TBS instead of the MGS. AMAPCEO was kept informed of the restructuring as it occurred. Following the filing of the disputes, disclosure was made. Knowing that HR Ontario itself no longer existed, AMAPCEO nevertheless agreed in the new collective agreement to a recognition clause which continues to include the HR Ontario exclusion. It was submitted that given that knowledge AMAPCEO possessed, it would be unfair and inappropriate to require that the employer proceed first. [12] In cases where the employer seeks the exclusion of employees who otherwise would come within the bargaining unit by relying on an exclusion based on managerial or confidential labour relations functions, the employer is typically required to proceed first. This is based on the premise that it is the employer that has knowledge of what duties and responsibilities are performed by the individuals in question, and which duties or responsibilities bring them within the managerial and/or confidentiality exclusions. The Board agrees that the present case is not such a case. The basis for the claimed exclusion is not, at least at this stage, the particular duties and responsibilities of the individuals in question. It is based on a claim that the individuals come within the exclusion of “employed in HR Ontario”. If an individual is employed in HR Ontario he/she is excluded irrespective of his/her particular duties and responsibilities. [13] Notwithstanding that distinction, the Board is of the view that in the instant case the employer must proceed first. On the face of the exclusionary language, following the elimination of the HR Ontario there could be no one “employed in HR Ontario”. It follows that no exclusion could result from that exclusionary language. However, it is apparent that the employer is seeking to establish that the restructuring that resulted in the elimination of the HR Ontario, did not, for practical purposes, render the HR Ontario exclusion redundant or meaningless. - 6 - Thus it submitted that despite the restructuring, the duties and responsibilities of the individuals did not change. Only their reporting relationships changed. [14] The employer it seems, is making an assertion that individuals who at the relevant time were not employed in HR Ontario, ought nevertheless be excluded under the HR Ontario exclusion. It focuses on the assertion that nothing changed in the duties performed by the individuals, rather than the “label” attached to the entity they are assigned to or their reporting relationships. Hence its reliance on the evidence about the nature of the restructuring that occurred, that it resulted only in changes in the reporting relationships and that there was no change in the actual duties performed by the individuals in question. [15] The merits of the employer’s submissions are not at issue at this point. They are yet to be heard. However, it is to be noted that the employer is relying on facts about the nature of the restructuring and its impact, or the lack of it, on the duties performed by the individuals. There is, however, no suggestion that there is agreement between the parties about those facts. AMAPCEO counsel pointed out, the employer was asserting facts which are not at this stage supported by evidence. This is an indication that AMAPCEO does not concede those facts. [16] The Board appreciates that information about the restructuring and the duties and responsibilities of the individuals following the restructuring, if not already provided, could be produced to AMAPCEO. It is probably true, as employer counsel submitted, that employer does not possess “unique” knowledge of these facts. It is likely that knowledge is not exclusive to the employer. However, it is, in the Board’s view, the employer that has the specific and complete information as to what about the restructuring and the duties and responsibilities of the individuals subsequent to the restructuring, makes it appropriate to continue to deem them as still coming with the exclusion “employed in HR Ontario”, at a time when HR Ontario no longer exists. The employer is better placed to put - 7 - forward its case first. It would be unfair and inappropriate to require AMAPCEO to proceed first in anticipation of the employer’s evidence. [17] The Board, therefore, concludes that fairness favours that the employer proceed first with its evidence. Such a process will be also more efficient and expeditious. The Board is satisfied that such manner of proceeding will not cause any prejudice to the employer. To further ensure that, following the completion of AMAPCEO’s evidence, the employer will be provided a broad and liberal right of reply to AMAPCEO’s evidence. [18] In summary, the Board reserves on the onus of proof issue. If that becomes necessary it will make that decision based on the submissions already received in the instant hearing, at the conclusion of the whole case. The employer is required to proceed with its evidence first on the terms set out herein. [19] The Board remains seized. This proceeding will continue on the dates scheduled. Dated at Toronto, Ontario this 9th day of November 2015. Nimal Dissanayake, Vice-Chair