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HomeMy WebLinkAbout2013-2575.Fitzpatrick et al.16-01-06 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#2013-2575, 2013-2576 UNION#2013-0368-0125, 2013-0368-0126 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Fitzpatrick et al) Union - and - The Crown in Right of Ontario (Community Safety and Correctional Services) Employ er BEFORE Ian Anderson Vice-Chair FOR THE UNION Indika Chandrasekara Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Kevin Dorgan Treasury Board Secretariat Legal Services Counsel HEARING December 16, 2015 - 2 - Decision 1. This decision is issued in accordance with Article 22.16 of the collective agreement, and is without prejudice or precedent. 2. Both of these grievances relate to the temporary assignment of Amie Hilditch to the position of Probation and Parole Officer (“PPO”) in Peterborough by Joe Woodgate. The initial assignment was for a period of four months, however this was subsequently extended by a further three months. Prior to the assignment, Ms. Hilditch was a Rehabilitation Officer at the Central East Correctional Centre (“CECC”) in Lindsay. The Grievors are also Rehabilitation Officers at the CECC. They have more seniority than Ms. Hilditch. Each of the Grievors asserts that she should have been given the temporary assignment. 3. The following provisions of the collective agreement are relevant to temporary assignments: 8.6.1 Where an employee is assigned temporarily to a position, Article 6 (Posting and Filling of Vacancies or New Positions) shall not apply except where: (a) the term of a temporary assignment is greater than six (6) months’ duration, and (b) the specific dates of the term are established at least two (2) months in advance of the commencement of the temporary assignment. 8.6.2 In no case shall any provision of this Central Collective Agreement with respect to the filling of, assignment or appointment to a vacancy apply to temporary assignments, except as provided in Article 8.6.1. 4. The Union and the Grievors raise in essence two categories of concerns. The first is whether Article 8.6.1 operated to exclude the temporary assignment from the posting provisions of Article 6. The Union asserted that the Employer knew or ought to have known that the duration of the assignment was more than six months and further that the Employer was aware of this duration of the assignment more than two months in advance of the assignment. 5. There is no direct evidence to support either assertion. Ms. Fitzpatrick asserted that Ms. Hilditch told her more than two months in advance of the assignment that she was going to be getting an assignment as a PPO. I prefer the direct evidence of Mr. Woodgate. Mr. Woodgate stated that the need for the assignment arose only two weeks before when an individual who was filling the position on a fixed term contract, Stephanie Leonard, advised him that she had accepted a permanent position elsewhere and would be leaving. Ms. Hilditch’s initial temporary assignment was for the period September 12, 2013 to January 6, 2014. Her temporary assignment was subsequently extended to April 13, 2014 in order to backfill for another employee on temporary assignment, Ryan Mason. Mr. Mason - 3 - had been given the temporary assignment on September 16, 2013, after the decision was made with respect to Ms. Hilditch’s initial assignment. 6. Ms. Fitzpatrick asserted that the Employer would have known that Ms. Leonard’s departure would give rise to a vacancy of over six months which would need to be filled. The basis for this assertion was Ms. Fitzpatrick’s knowledge of the Employer’s practice with respect to Correctional Officers. Ms. Fitzpatrick states that the Employer carries a complement of fixed term contract Correctional Officers and that it takes more than six months to hire a new one to maintain the complement. Therefore, temporary assignments to fill a vacancy in the complement of fixed term contract Correctional Officers are more than six months long. Again I prefer the direct evidence of Mr. Woodgate. Mr. Woodgate stated that what ever the practice may be with respect to Correctional Officers, there is no practice of maintaining a complement of a fixed term contract PPOs in the Peterborough office. 7. Accordingly, I find that Article 8.6.2 operated to exclude the operation of any provision of the collective agreement to the temporary assignment. Given this, it is common ground that the filling of the temporary assignment was a matter of Employer discretion. It is also common ground that the Employer must exercise that discretion in accordance with the “good faith” standard articulated in Bousquet. The second category of Union concerns relate to whether the Employer did exercise the discretion in good faith. 8. Neither party provided Bousquet, rather they provided cases that quoted from and applied Bousquet. The Union provided Ontario Public Service Employees Union (Perez) v. Ontario (Ministry of Community and Social Services), 2003 CanLII 52894 (ON GSB) (Abramsky), relying on the statement from Bousquet that while there is nothing in the collective agreement which requires the Employer to consider advancement opportunities for employees, it cannot use its management rights in such a way as to “deliberately tilt the field with a view to preferring one employee over another”. The Employer provided Ontario Public Service Employees Union (Dufour) v Ontario (Ministry of Community and Social Services), November 9, 2015, (Briggs) as the most recent application of Bousquet. 9. There is no real dispute on the applicable principles. I find the following statement by Vice Chair Abramsky in Perez useful: In Re OPSEU (Young et al./ Group Grievance) and Ministry of the Attorney General, supra, I reviewed the “good faith” standard as set out in Bousquet. I concluded at pp. 14-15: The Board in Bousquet extensively reviewed the jurisprudence regarding what constitutes “good faith.” The Board adopted, essentially, a two-part standard. The first requirement is the absence of bad faith, i.e., the decision must not be improperly motivated or maliciously intended. The second requirement is a requirement of “reasonableness” – the “elements of reasonableness and a rational relationship between the facts leading to the making of the decision and the decision itself.” (Bousquet at p. 62). “Where there is some evidence permitting an objective - 4 - assessment that the decision flowed logically from the facts, the Employer will have satisfied the second aspect of the good faith test (reasonableness).” (Bousquet at p. 63). The Board concluded, at pp. 63-64: All of the cases emphasize that in cases involving the exercise of managerial discretion, the Board will hesitate to substitute its view for that of the employer as long as certain minimum tests are met. These include the requirement that the decision be a genuine one related to the management of the undertaking and not a disguised means of achieving impermissible ends based on discrimination or other grounds unrelated to the making of genuine management decisions. The facts considered in making the decision must be relevant to legitimate government purposes. Also, in making its decision management, provided it has acted in good faith, as above described, need not be correct. 10. The Union asserts that Mr. Woodgate’s decision was improperly motivated and tilted the field with respect to future promotion possibilities in favour of Ms. Hilditch over the Grievors. It tilted the field because when Ms. Hilditch was placed in the temporary assignment as a PPO she received six weeks of specialized training only available to PPOs. As a result she has a leg up on the Grievors with respect to her capacity to obtain a permanent PPO position in the future. It was improperly motivated because Ms. Hilditch is the niece of a managerial colleague of Mr. Woodgate, Ms. Hamblin. Ms. Fitzpatrick and Ms. Bradimore assert that this is common knowledge at the CECC. 11. I prefer the direct knowledge of Mr. Woodgate. He stated that whether or not it was common knowledge at the CECC in Lindsay that Ms. Hilditch was Ms. Hamblin’s niece, he was unaware until someone mentioned it to him casually after Ms. Hilditch had started her temporary assignment as a PPO. Mr. Woodgate also adamantly denied that the relationship would have entered into his decision making process in any event. Rather, he explained that the reasons he selected Ms. Hilditch were: she had recently and repeatedly expressed interest in the position; she was working as a volunteer in a program at the Orillia Probation and Parole Office; the volunteer coordinator at that Orillia Probation and Parole Office had called him on an unsolicited basis and advocated for giving Ms. Hilditch a position; and all of Ms. Hilditch’s references (none of whom were Ms. Hamblin) praised her work. Once she had received the training, it made sense to extend her in the position to backfill for Mr. Mason’s absence. Based on this evidence, I am satisfied that both parts of the two part standard for good faith described by Vice Chair Abramsky have been satisfied. I am also satisfied that the decision was in furtherance of a genuine government purpose and that the facts considered were relevant to that purpose. 12. It may well be true that the field has been tilted in favour of Ms. Hilditch with respect to future prospects of obtaining a PPO position. Indeed, that was the foreseeable result of providing her with the opportunity to receive the training and perform in the position. This would have been equally true of either of the Grievors had they been the one chosen for the temporary assignment. All other things being equal, anyone who had the training and experience, however obtained, would be in a better position than someone who had not. Indeed, Mr. Woodgate stated that he initially offered the temporary assignment to a PPO from Toronto - 5 - who was living in the Peterborough area while on a leave of absence, but that she declined. 13. The tilting of the field is, therefore, inevitable. Bousquet, however, does not suggest that the tilting of the field per se is contrary to the collective agreement. Rather it is the deliberate tilting of the field with a view to preferring one employee over another which is contrary to the collective agreement. As Bousquet went on to say: However, where in good faith for genuine government purposes an employee is denied a training or development opportunity, where the denial is not founded on a deliberate attempt to undermine the opportunities for promotion, the decision will not be interfered with. 14. The choice of Ms. Hilditch for the temporary assignment did have the effect of undermining the opportunities for promotion of the Grievors. There is no evidence, however, that it was deliberately done for this reason. Rather, the decision was made by Mr. Woodgate in good faith for genuine government purposes, as outlined above. 15. Accordingly, the grievances are dismissed. Dated at Toronto, this 6th day of January 2016. Ian Anderson – Vice-Chair