HomeMy WebLinkAbout1988-1173.Babb et al.90-08-08 · ' "': ONTARI° EMPLOYES DE LA COURONNE
i CROWN EMPLOYEES OE I_'ONTARIO
'- GRIEVANCE .COMMISSION DE ..
SETTLEMENT R~-GLEMENT
BOARD' DES GRIEFS
180 OUNDAS STREET WEST, TORONTO. ONTARIO, MSG 1Z8 . SUITE 2100 TELEPHONE/T£L~PHONE
180, RUE DUNDAS OUESTo TORONTO, (ONTARIO) MSG ?Z8 . BUREAU 2100 ' (41~) 598.0688
U'' : '- / "'
-':'*77' . ~ ' :T. ' '
: ,, IN THE HATTER OF AN ARBITRATION
.. ~_ .,.~'...: ~..,- .
-' Under '"' --
THE CROWN EHPLOYEE$ COLLECTIVE' BARGAINING ~%CT ' ';"
~efore ' , . .
BETWEEN
OPSEU (Babb"et ali" '- ' '
, ~rievor
' - · allc~ - -
. '."
.. (Mi~nistry. o[_ Co~uni[y & Bocial Services} '
' ~ Smpl oye r
.. ." ": ' -.. · - T~ ~WilS0n ' Vice-ehairperuon
~.. E'i~m :" . ~ember
I. Co,an '" .,- -. ~ember
FOR THE -' ~; :-? "~f',~ichar'ds" '
._ GRIEVOR' .'- .,, -~,,- .... ,.:GrieYance Off'i'6er
· '; ': ~'~:- .. Onti~io'Public Service
· . ' ' ' · ' - t.i ':. .
tFOR TEE' , . '-' -:: ; ~. 'Pa%teks6n
EMPLOYER C'0un
' · : Lecal Service's Branch
' ' - .:, -- , : Mi~istry of Community &
Social ese rvices --
H~RING: Ma~h 23'; 1989
April 26, 19~9
DECiSiON
Thfs' case involves a'number °f.,gr!evance's' arising from a
declaration by the employer' that-the grievers are surplus. The
grievers 'seek a declaration that'the letters. of surplusage be
rescinded and the grievers be reinstated
.
the appropriate department without loss of pay or benefits. The
.grievers are.classified at the OAG '9"level"'and'the'position title
in question is,ORFUS Analyst.
TO understand the issues, it is' nedessaz~'to set out .the
.relevant provisions of Article 24 - JOB SECURITY
· 24.1 ~Where a 1&y-off'may occur, by reason of shortage of
work or funds or:the abolition of a position or
other material change .:~n ..organization, the
identification of a surplus' employee in an
administrative district or unit. lnstitutio~ or'
other such work area and the subsequent assignment
displacement or lay-off shall be in accordance with
, seniority sub, eot to the conditions set out in this
Article.
24.2.1 Where an employee-is identified as surplus he shall
be assi.gne~, on the basis of his seniority to a
vacancy in his' minis%fy within -a :forty (40)' ' "'
kilometre radiU~' of his headquarters provided he is
qualified to perform the work and the salary maximum
of the vacancy is not greater than three percent
'(3%) above nor tWenty percen~ (20%) below the.
maximum salary of his qualificatio~,- as follows:
~.a vacancy which is in the same Class o~ position
as.the.emPloyee's class or position
- a vacancy i~ a class or-position in which' the
'- ~ ~? employe as served d'rih his current term of
'~:- ~vTcontinuo~s serviCe;"o~'.~::¥-.
24.'2.2 W/th mutual comsent, a .surplus employee shall be
:-"~ .=~..assSgDed to a vacancy in his Ministry beyond a forty
· ~(40~) k~ome~re, radius of~ high,headquarters provided
~? ~.he~'is q~ai£~ie~, to Pe~f0~m"the work and .the salary
~" .,..' maximum of .the .¥acancy is~not greater than three
percent (3) abOV~'nor~f~enty~.(.20%) below the maximum
salary of his classification. Relocation expenses
u:~ .~' 'sha~!~e paid in, accordance with the proPisions of
24.2,3~ .... Where .,an employee haS~ot been assigned in
accordance' with~sub~sections .24.2.1 or 24.2.2, he
: s~alluDe assigned'on the basis of his seniority To
a vacancy in anoth~r'~lstry within a for%~ (40)
' kilometre radius of his headquarters provided he is
qualified to perform the work and the salary maximum
..... -.' .- of.<%the vagancy!is, not greater than three percent
(3%) above nora"twenty-percent (20%). below the
maximum salary.,of his classification; as follows:
-'~'3 . ~ a, vacancy wh~ch.~s in' the ~ame class or position
as'the employee's class dr posit.ion; ... ·
- a va~anc~%~" a cias~ or position in which the
:-'~-.: ' ~ ~emplpyep:.has served during his current ~erm of
continuous service, or
- another vacancy
'~'24.2~4.~. Effective March 16, 1987, with mutual consent, a
'-. . ~,~. sump!us,, empl0y~, w~o has.-nOt.-,been-' assigned in
· accordance, with'Subsections~2~,'2.t, 24.2.2, 24.2.3
shall'be assigned to a vacancy in another ministry
'~ beyond a forty (40) kilometre radius, of his
headquarters provided he.is qualified to perform the
work,and the salary .maximum of the vaCancy~ is not
greater than three Percent. ('3%)' above~nor twenty
percent (.20%) below the maximum salary of his
classification. Relocation expenses shall be paid
.'?. l,;~. in.,accordance with the provisions of the E~ployer's
policy.
24.3 [omitted]
' 24.4 An., emp,loyee,. , who does not attend a placement
interview ,when'r,e. quested'bY: '~he Employer or who doe~
not' accept, an"~signm~nt'-ln accordance with sub-
sections 24.2.i or, 24.2.3 shall be laid off and the
apply.
2415 . Wh~ ~an amplog~e
- '-.' int accordwhCe,. -. wit
~-:-~, :. :. 24.2,,3 or 2:4.2',4, hm' shall be 'subject t0 lay-off in
~ .... J~ accord~nce,~w~'~ the,followin~ applicable sections.
24.6.1 An ~pl6yee- ~' who haS' completed his Drobationa~
.period and-~ho.is"Sub3ect ~o~lay-off as a surplus
employee shall
- ' ~ :he. following ma~er and~ s~quence
· ' -~ · [deta~le~ b i uence-omi==ed] -
T0 'understand' ~h~ c~mplex .~ssU~. ln'-=his case, an a~alys'ls ~f
'" '~' ~-' necessa~. Steven Baker, one 'of. the
the 0R~S Recove~ unit 'i~ x,
~rfe%or~ gave extensive te'~timony ~h the; mat~er. 0f assistance ~n
~his ~gard is. ghezPgsi.~ion $Deci~i.cation ,(E~ibtt 5) for OR~S
'= i987..~, It: state
~alys~ dated April 27, ..
· "To 'assess and recover ~Yg.rpd~n~' under F~tlY~.Benefi~s Act
(on a, .caseload of.'appro~. 4','000 cases - value 7,5 million
~ ,- .
D~IES ~D RELATED TASKS_ ~,~ [ ,'
1. Reviews case decision~ and' 0v~pa~ent su~aries by:
- reviewin~ decisions of IMO' s to ensure that correc~
aPPlication of legislat£on and accurate 'calculations of
overpayment are documented;' ~-'- '~,j
' ;summarizing, in de~l,~ caSes where Policy may be flexible,
suggesting, most .~ppropriate course of; action,-forwarding
· group leader for approval;'. ' '- .'~
summarizing C~es o~ un~'~d~l ~ '
~. - ¢ircumstances'-.(administrative
" error or~'¢l'ien~.':death etc,).;
· . - preparin~ computer input forms or authorizing-input forms
prepared in unit, ensuring documented overpalrment and supplied
reason match, and that the overpayment is recorded within
est~blishedtime.period for proper ~alculation; ,' ..... ..
- reviewing month.l~.lists of delinquent account and following
' :- up with reminder'l'etters or ~hOne'~Calls;,.
- tracing 'deb~6~s Via 6redit"~'.bureau.,_~Ministry of
.~r~nsDorta=ion,;'~ostai authorities, or line enquiry ~ext of
~ . kin, Registry O'fflce, etc~ '.:'
, -'o., ~ . ,'~'.,-~-?. . . .: ~... ·
.,.;_ .... ;.', -.summarizing, in d~t'ail, ~ases', that warrant civil
proceedings;.~
':" ' ~' - drafting end 'signing .of .dem~..!~ters for refund, return
,.. of overpayments, as required;. ., ' ...
- negotiating paym&nt~ plans ~i~'h debtors .... - :.'-.
2. perfor~-related duties, such. as
' "' 50%' - prepares and signs resp°nse to letters receive~ and ~onthiy
. s~atements, requesting'deferral of Overpayment;
.~ - views the contents of~le~ter~ and sta%ements' and rpcommends:
(1) possibi~ity ofd~ferring;collection of overpayment until
· circumstances change', ~or (~)'recommends. wri~e~. _. ~.
· -off 'of 'OVerpayment subject Supervisor's approval if over
$500.00 due to an administrative' error, or.,. ~.
(3) '~egotiate payments;' _. -,
" - 'determines tha~ .overpayment will not be recovered when
amount under SSOO.OO'is due to an admini'strative~error, in
case of recipient.'s death or.where the recipient's whereabouts
in unknown; -'
- drafts and signs d~a'il~d repli~ to. Mini'ster/Deput¥
Minister, M.P., M.P.P. et al explaining how the overpayment
was created and refund'procedures;
-'checktng with field 'staff to obtain information to review
and finalize c~iculatio~s, and also to explain reasons for
overpayments .to clients; -
- reviewing computer outpUt to identify erroks etc. either on
case. input from unl,t or refunding input, from the. Accounts
Branch, and follow Up as necessary;
''~ acts as group,, leader. . , when.
leader.' performs other duties as assigned '-by' supervisor/grouP
A typical Overpayment situation w0uld~artSe where upon the
cancellation of ~%'il~''benefitsL it-.was discovered that the
recipient had been,overpaid i.e. paid when. not eligible due to
income, from work.' When the'infOrmation arrived at~ORFUS,' it woUld
be checked for accuracy, and then. inputed into the computer system
Called Comprehensive IncomeMaintenance Syste~ '(CI~MS.).~ This would
produce an "overPayment' statement" which' would be .sent to the
recipient. .If the client responded, the analyst would write a
letter to try to arrange repayment. Once the arrangement i's made,
the computer automatical~ gene~ates-a .monthly update. If the
recipient missed a payment, he .Would'~'be.. contacted and 'further
arrangements.made, ,If the recipient ignores the's~ction, then the
file would, be. reviewed, a-summary . prepared and civil · legal
proC~edin~s. might- be comme~ed resuttin~".in liens on property,
garnishees on wages etc. The section had its: own s61icitor. If
the recipient had d'i'sa~e~re~, S~arches would-be made through the
Ministry'of Transportation, credit.bureaus, Bell Canada etc. The
-sectionl had 11 clas~ified~ s~aff and one unclassified. The case
6
· ' load .was about, ~ f 000 cases per collection "~ff~der ? - - ",
~ ,.':-On 21,Sept~be~f. 1988 the Assistant.Deputy MiniSter wrote the
members of ORFUS informing them that "th~ current funCti~K'assigned
to ORFUS will cease to. exist within the Ministry,.?-'.iH'e declared
their po~i~tons.~r~s within section. 22(4).of the Public Service
,Act and Article 24.1 of the ColIect~ve Agreement. 'The largest
portion of the .~ob went to. CCS in the Ministry of Government
'Services.~ i..e. ~he Central Collection Services ~°r'~h~ provincial
government....$0me~of the functions were decentralized, for example
' .. checking the. payments was moved to the' social services .,Di~tr'ict
+ Offices. T~is had. previogsly taken an 0RFUS 'anaiyst~'almoSt an hour
· 'a'day,.~ Alsp ~ ~is~rict offices now checked the computer system
through their terminals to see that the m0~t~ly statements"'are sent
OUt.
:Irene'. Sch~effer is a senior PoliCy. Analys~ and in 1987 she was
~ ' ' instructed-to ..look at all the functions of the Family. Benefits
~- Administrative ~nlt. A~ the. time 'in 0RFUS'th~re Oas a backlog of
about ~1,000 case~ and o~ly abou~'~,'0~0-3,000 were ma~in~ payments.
- It was.recomme~de~ that a number.of cases b~' Written 'off as for
eXample.those where no payment had been received and. those that
were'over four years old, those where the client..(recipient) had`
' no~..been notified,.or could not be found or was deceased'.' This
, amounted to about. 22,00Ocases. The remaining 19,000 were reviewed
and .in this' re~ard one of the collection ~fficers from CCCS was
7
seconded. A~Procedure was established in which they would try to
locate the client and a notice would'be 'Sent Out.: ~f there.was no
response within sixty days the case would be turned over to COS for
collection. The.,proJeoted date for completion 0'f"~his backlog was
May to June 1989.
New files are to be held in the local offices.
automated on CIMS and the client iS now to call the local office.
If the client does not "call, %he~ claim 'bac~ up pending the
introduction of.a new scheme. The reViewing Of monthly lists of.
..delinquent accounts will now be ~one in the~l°Cal~ offices. They
max ,now re'er the matter to COS 'or recommend 'that it be written
..' off or'.J6st postponed or let it simply'go forward'in the computer
system for successive monthly statemen=s to the ~lients%' Tracing
of clients will.be done by COS. ". .
~'. If anaccount is delinquent for two months'it is to ~o ~o cc$
unless the'local office suppresses{he 'file. 'Negotiations will be
done at the local ofice. When a case goes to COS, it~ ~is in the
form of a referral profile identifying the client ~tC~ .and the
'actual file would stay with ~he i~cal 9f~ice~ The new cases are
being held in the local (distriot) of'rices Until.'the. back log is
cleared up.
· Ms. S'chaeffer t~stified that" CCS is a much more ~ctive
collection system than~ORFU$ - more a stereotyp~ Col.le¢~ion agency
with skip tracing'capabilities. The clerks'at Cc~'a?e~,at a higher.
..-w.c.lassification than tho~e' at ORFUS.
.. The Union argues that the terms of'Secti~n*-24.1 were.'n'6t met.
The work is still there. ' The~x'bac~i'6g ~f c~s i,s essent£ally
.... cHimerical-because they were inactive files. ' The new procedures
when ~inal. ly in place may simply k.educe the '~ed for a-few~of the
· employees, but the basic~work does not di's~pear'~or ~Ven Change in~
any fund.amenta! w~Yl The'"more active stoic of Collection''. is ~ust
that - a mere.change in style-or' techhiques and ~hey could ~ust as
eaSilY be used by 0RFUS. Therefore the ~ob has ~ot beeh abolished.'
.Only in th~ case of the ~0 day review ~eriod:by the~District O~f£ce
has any work been actually tr~nsferred'°~-of..the'ORFUS· function
~ and eyen in that case £t mi~ht be that some. of ~he grievers could
'attic% 'OffiCes
,. With.reSpect to the proposed t~nsfer'of ORFUS grievers to
.CCS, Mr.. Richards for the Union argued that bein~ declared~SurDlus
can. only occur within the transferee Min'i~try, ri.e~.' move the ORFUS
people to CCS and'then if any one is s6~Plus'within~that unit then
that is the appropriate time to declare him/her.surplus. With
resp.ec~ to-the classification di~fer~nces,-~r.. Richards pointed out
that in fact ~h~re ~s a grievanCe~ over tha~ as well' but in any
~vent ,it ~ 'the ~ob itself'that is moved ~(wh~'tever its correct
classifi~ati2n~.,~ ~ , ' · ..
Y The principle~decision in this,.area and reiied upon by both
parties is Union Grievance and Ministry~ ~0~ .Heaith~ (G.S.Bi 665/81
decided 31 March 1982) i.e'. the OHIP c~se. This ~ase was concerned
with.the situation~created by the government's decision to move its
· OHIP administration .from Toronto to KingSton. The government.
offered OHtP employees .the right to move ko K£ngst~n' including
rsmoVal expenses. Ab~t 90%~,.: 'of the empl6y'ees de~l'i~ed-for any
number of Personal reasons and the government'said they would be
deemeO .after two weeks to'have abandoned their emploYment-pursuant
to Sectio~ .20 .of the Public Service ACt. The Union ~rieved that
the emploYe~s had.Ceen "latd~off''. and. were betn~ den~ed
Ar~tCle 2~ ~tghts. .This Board ,alloWed the grievahces~~ :in some
ways, this case sounds like the reverse of'the present case, but
of distance oFq to use the technical languag~ Of ~he' ~e.ciSion,
~eographical location. In this respect it drew on' an earlier
decision,- Travers ~9/79, 213/78 where in a Supplementary Award the.
Board~ had to determine for purposes of rein~tatement what
"substantially equivalent Position" meant. The ~oard at page 10
of that Supplementary Award wrote:
"In the search for -factors of equivalence between ';jobs,
geographic legation and level of skill and 'responsibility.
In this particular case, the'Union stressed the impO~tagce~.of
preserVing pay''level' and ~eograDhic location, in this'
particula~ case, we would'agree that geographic location is
a relevant factor in evaluating the 3oh's. ..2..' Therefore, in
this case, a position within commuting distance.from Ridgeway
is necessary to meet the requirements of S 18 (3a)."
· The Kenned~'panet-~n the OH~P case found that~the ~easoning
in Travers which was dealing~wit~ 'the ~ow Sec~£on 19"-(4) of CECB
Act offered "some support for the position %hat one element of a'
positioh may be,~its GeoGraphic component."
· ~ .... Then at page'~12,i~t~9~,BoaKd went on to characterized the issue
-before £~ as follows: l~-~ ~
-r~ "The issue' to be resolved.in this arbitration
tel&res directly to Article 24.1 of 'the Collective~
" """~ -,' -~reement and whether in the ~ircu~stances the employees,
who are unabi~ or unwilling ~o. relocate =o..Kingston are.
'2:'- ...~.-entttled tO the contractual rights of employees who have
been laid-off. :The'isSue. may be. even mo~e .narrowly.
"',stated .as the .determination. of whether or nbt the
positions'occupied"by·lncumbeh~'employees in Toronto have
- '": -a,..~eOgraphic c0m~onent. It is our view t~t the
situation has be~n characte~iz'edcQrrectly by the Union
'~ --"' ----~as a situation of/lay-off and.for the reasons..relied upon
by the Union." .... " ~ ,. .... ·
.
The Union had relied on the location in th9 Posit/on
Specification ~n~ the Ge~gkaPh£ca'i~'~constraints'adopted by the
parties in the assignment proViSionS-in Article 24.2.1,, 24.2~2, and
· 24'.2.3 of the Collective Agreement-'~"Mr. kennedy%concluded at page
14: ~'""~' ~":' ' ':' -'h:' ~ .
"'.' ,' ?. ~ i~ . -. :.,,
' - -'" "It.:ma~ fumther be Dpt~d that in Article' 24.i,"the
identification of a surplus -employee is. ,related to "an
'administrative district or unit, institution or other such
work area." The Employer's-positi6n is, in substance, tha~
"- ,where the.job content remains the same, the emPloyee.can be
transferred anywhere within the Province of Ontario to perform
that work.. .The.:specifi~ language of the clause defines
narrower boundaries outside of;which~ the ~Emplqyee becomes a
surplus employee rather than one who has abandoned the 3ob,
The actual identification of those boundaries in the abstract
11
is not within the purview of this arbitration. Each situation
has to be viewed on its own facts and'in the light of what is',.
reasonable in ali the circumstances. The.,cDntract language
in Article 24 indicates, without specific definition, that the
.~parties have agreed'that those limits do-exist."
The union in our case argued"that.if 'there is~any
ambiguity in Article 24,~the.Board shouid, iook at the history. In
this respect it offered the' eVidence~of'Donald'Stewart. He has
been the job s~Curity officer at O~SEU for ~reater ~han-fo~r years
and, as such is responsible for 'the administration of cerqain
provisions of the~'collecttve 'agreement. When a host MiniStry
declares an employee.'Su~lus,.'lt 'giVes 'a letter-of;surPlus and lay-
off · and the Union as.a matter 'of right ~tso receives a copy of the
le%t~r. If there-is no notice'of 1.aY-off, the Union still receives
a' letter of surpiu.s..from the~ Secretaria~ on.'a, monthly. list alon~
with the vacancies that are identified:by the Secretariat for wh$ch
surplus employees have access rights.
Mr. Stewart:provided. the Board with a list of organizational
changes. These included-,t~e dividing up of .the old Ministry of
:Transportation and. Communications: the Communications. part was
moved t° the Ministry of Citizenship and Culture. in which
citizenship was created into a separate MinistrY,of,,Citizenship,
and Culture and' Communicat.~Ons were Joinedto.'form a new Ministry
(1~87); In 1985 the Division of M~nes and. Minerals was moved from
the Ministry of Naturai'Re~ources and` combined with. the Northern
Affairs to form a new Min~'str¥. several other examples were given.
Th6 m r~sp~tive employees ~moved .wi.~th .their ..Jobs into the '~ewly
constituted~ Ministries,' No~ not. t. ce. of ..surplusage was ~iven or
-~equired a~d they did aot appear~on the monthly last. Another more
ret-ant ~Xa~p~ef~ a Financial Officer II~ was moved from H°6St~g to
Gove~e~t' ' Se~tce~'~ ' and' ~he ~-~gdundancy was declared in' . the
transferee'"Mi~st~ .'This was part, of the gransfer ~:' ~he 'Ontario
L~nd Corporation tO G°ver~en~-~Se~l.c~ver a .number of years.
~ somewhat', different ex'pla.-wes the ~ransfer of Brookside Centre
from the Mintst~ of Co~uni~ and Social Services to the Mi~st~
of'corrections.
- ' ~'1 ' ' ~" ~': ~ ~- ' · ~ '
~- .- The: Un,on argued' ~h ~hi~ evidenc~ sho~ed, wh~re the ~ployer
has nb~' exerCiSed-or c~im~d--rl~h~s '~°'-~re~te surplus~ and
~here'~re has .... ma~e,..repres~'a~ions'. , ~6: ~e-Union as-'t~ how they
..... ' 4- ':~ '' -' '"
.wouSd~et. "'Rely~nff on ~hese a o~ ::~niofi~did~no~ att~Pt to
r&neg6fia~e "'~het"tems." of ~h~. Colie~t'ive" ~greement.' It then
re~err~d the rBoa~-t0 .i~s~deci~ion-in Ha~w~ll-~'and, Mlnist~ of
.Cdrre~tional Semtces (GSB 50~/82). ~he -S6ar~' ~found' on the
evidende ~f bargatni'hg~-hi'~to~ ~fi~ ~he 'Mifiistry"was estopped from
refusing the ~rievor his moving expenses un, er its own policy. By
way of comparison s~: T~shiD 'of Jaffray and Meln~ck and
C.U.~.~, LOcal'lgl (1987):. 29 L.A.C..(_3d) 403 The Union.also
referred the Board to SheDpard and Ministry of Correctional
S~rv~c~-(GSB' 5~0/B2'.)'~'~. In ~h~ ;.,case ~h~ evidence
~ha'~: ~h~ pr~0~ pr~e~co, of the ~in~str~ ~n ~r~n.t~n~ Correctional
Officers -a p~id '~a~ Break had ~on~ on for
Furthermore this had previously been noted in the'Burns_ grievance
decision where it wad"stated that ':fOr .a,..period of y~rs prior to
the ~hange in 1982~ the gri~VOr h~d received,~eight hours' pay for
a shift of eight hours includin~a.'.mea~ period~%~ The Board relied
on the decisio~~ '~
of A~bitrator Kennedy-in Re'Dom~las. Inco& United
Glass and Ceramic WOrkers, ~Ldcal.-203 (198~)~,. 9 L.A.C. (3d) 125 in
which he concluded %~t the company was'~stopped.~fr?m..putting an
end to its prior pra~i~e
Agreement. A~ page 19 of ~he'Sheppard decision Vice-Chair Roberts
concludes:
?The doctrine of promissory estoppel has found 'the basis
'.~f many awards issued by this Board, and we can see no reason
,why it ough~ not'to form the.basis of.~he a~ard in %he present
case. FOr several years, the Min£stry~forbOre from £nSisting
upon its strict contractual'ri~hts to require, employees of the
'.Toront0 Jall~to wor~ for $ hours ~er da~ 'W~thout~ paid meal
break. The employees at,the ,facility.were induced to rely
.Upon this.practise, and this reliance was ~otheir d~triment,
in the sense that' they 'never sought, to .p~otect .their
expectations through language negotiated
Agreement. The furor which followed the Ministry's decision
to ....enforce its strict~ .con~ractua~ rights' .eloquently
de~hStrates that if adequate, notice had been'given, the Union
would have attempted to renegotiate the'relevant language of
the Collective Agreement. Ih this respect, this.case appears
~' %o be ,on ali.fours" with Dom~las, supra, and as 'the Soard did
in that~case we Conclude that the estoppel must continue until
"- the end of the Collective Agreement which was in'f0~ce during
the ten month ~eriod."
The UniOn further s~bmitted that an employee cannot be
dePriVed of his position .unless it is part of. a'. larger
reorganization. ~t refer~ed us to Corr~ and the Ministry of Health
GSB 424/85 and'~kinner and the Ministry of Industry and Tourism GSB
226/79 The Skinner deci'si°n dealt"witH~a g~ievance tha% the
emP~er, had' viola~ed Art~ci~ 4 by ~t Pd§t£ng.'<new .positions. when
it massively reorganized the Minist~'of"t~dustryand,Tourism. The
Board agreed. SpecifiCally, the grl'e~or~ gr~ieved5 that 30% of the
w0r~ 'he 'had previously done had 'be~nt~ansferred to the p~motion
unit Qf .~he Industrial Deveiopment."B~anch and it'.sh°u'!~hpve bee~
posted so that he coul~'"have competed ~for..it. ~The Board· agreed:
the. grievor's old posi~i0n had'b~en abo~t§hed and two,new positions
had been Created. (Page. 6). "The Mini-~%~y in our,Qase~argues that
the grie%ors positions are like tho'~°f'Skinnerand submits 'that
i~new positions arise in CCS as a result of the work transfer then'
tho~e.'posi%~ops must be posted.' -'- -
Mr. Patterson for the2~inist'ry a~ued that there is an
...arbitrability issue. His poi~ ~s'that the Ministry first decides
w~ther to la~-off and .that decision lies 'strict~y.'within its
authority as set 'out in Sdbs~Ctioh -~8 (1)- of CECB Act and
.specifically clause (a). "c0mple~ent, organization..., work methods
and, procedures". I have no doubt 'that the' true~.aqthor~ty of a
Ministry to !ay-off'a PUblic servants-clearly arises frpm Section
22 ('4) of the Public 'SerVice 'Ac~ an~ ~eciffcallY in.this ~case the
ctaim "abolition of a pos~ti'~n or o%he~ mater/al change". I~ have
pre~ously analyzed this~issue'in'"Dafoe'-and 'Ministry of Natural
Resources GSB 1868/87. fnd~ed"the' ~ght'of this Boara. to review
releases 'to decide 'whe=he~ th&~ ake bona fide releases has been
repeatedly-affirmed by this B~ard: see Leslie and Ministry' of.
· Community and Social Services GSB 80/77 and of course above ali in
our own circumstancgs the OHIP cas~ supra pages 8-13 itself. In
th~ OHI__P Case the Ministry said the employees were n'O~ ~aid-off;
-th~ Board said they,.were. In ou~ case, the Minist~ 'says th~
~" ~g~levor~ were iaid-of~; .the Union ·says they were not bona fide
"' laid-0ff. Of .course,.,if their ~erminat'ion was not a lay-elf, then
it was a dismissal ~ithout.3U~t cause. ~See .Dafoe supra p 16 and
pp"19-20. ·'Furthermore, the. answer to the Mlnis~rY's argument that
'''' lay-off'is not negot~.able'~is answered bYpointin~ %0 Article 24 of
~he ~ollective. Agree~.ent.,
'On th~ merits.of ghe case, Mr. Patterson submitted '~hat the
pOSitions. of the griever were abolished or disinte~rated: some of
the functions were. transferred-to CCS and some downstream to the
'' IMO (Income Maintenance Officers)' a~ the-MCSS-~District Offices,
H~ fu=ther argues that the superior tracing and 'collection·
tech~ques 'available at COS s~gw that the po~itio~ is a different
position. He distin~u~shes ~h~ changes testified to by Mr/ Stewart
as s~mple~matter~ of..changing Ministry titles - i.e. a new hat, "
same person;. Mr. Patterson further argued that Article 24-is
Ministry specific: ',~at 'is, it applies only withtna Ministry.
Flnal-ly, he.argues t~at as soon as the.Mtn'~ry kn6ws the'Position '
is disappearln~, it-must gi~e the lay-~ff notice: see OPSEU and
MCSS."(GSB 2507/86). The material.change occurs when~t~e~decisio~
'tO reorganize is made and that lay-offs may occur. At t~at point,
notice must}he,given. In this respect, the Ministry submitted that
,~ 'there were fOur elements ~o
~ · 'c.-- '~ ' ~ ih:an administrative section,
b) within Section .~.4. , it occur '
C) in a Minist~ and d)
_ cases l all four have been changed.- ~nd as .Ms%~. Shaeff~r~'test~fied
not. a singl~ aspect of the' Job ~ Passing in 'tact .to 'central
'Collection or ~o district. offices. ~'In.ctheir~.~view-~he O~IP case
nstanps, for-the proposition tha~ A 'bOsf%ion. is' made up .of al number
,.-,. The operative, words fn ;Sec%ion"24;1 from the point or-:view of
t- .. these ~rlevances are "shor%a'~'of -0~k"'o~'. :fUnds or. the a~91i~on
of. a...posigion or o~r ma~&rial change' ;~ organiza~ton".- Under
..,_ , the Colle~i~e A~re~en~, ~he ~U~ti~ion of surplust~io~ees
can. onl~ ..~cur &f ~e of thsse "situations-~ ~ exists, .'
There
no
-..issue here of."shor~gage_ of work or f~ds~'~so We ar~ 'concerne=
.... .' ~he. que%~i99s of "~bolit~on it'ion or' oth~r, material;~ chan~e
two most relevant cases a~'-The oHIP ~D~c'i~i°n' and-the Skinner
position bad,been abolishe¢ when a' massive r~organiz~tion occurred.
Only 30%.of ~he work'of the Drevious'B~si%ibn had been c~rried over
into the ~ork of the positions whic~ =~'gTiev0r' claimed should
-.have ~9.,pos~ed, -The Board agreed~''. "in"%he ca'S~, of'the OHIP..
change,' the movement o~ the
i7
9irtu~of ~the. geographical change'~sulted'in the Creation of new
p~sit'i~hs and the right ~to laY-off rights in the 'grievors., The
' skinner case was of cours.e,~concerned with Article 4 - it is in' a
"~ense' ~the· opposite 'end of the i~sue', i.e. a "new' 61as~ified
Pos'ition 'is created" 9~,~ gOmpared with the "abolition of a
positio~~' The'.Skinner.decisi0n was in my view correct. The facts
of our case do-not coincide with the facts in Skihne'r s~ ~ar' as
"abolition of a position" is concerned. Most of the'functions of
the grievors posit$ons pass under the Memorandum of.~nderstanding
to CC$~ It may be-..in the. case of ~hose.functions that-passed down
to Di'str!ct~,-.Offices_<the. positions did not remain a unified
collection'.of functions, it does not appear'-o~'thi's' ~vid~hce tha~
ithey- did. But clearly that. work'that
essential'l~ in tagt and it. cannot be concluded on this ~%idence
that the positions.~did not moVe to CCS. The OHIO' cas~' ~s not
· dtrectly, applicable.:.,~there, is no relevant ~eog=&p~i~al'el~ment in
our case. I have no doubt that the major geographical' shift
involved in that case 3ustified.the Board tn'f~nd~ng~t they were
.no~, the s,ame ~positions.
"reliance p%aced in the Travers case analysis W~s' correct. The
consi~e~ations applicable
19.(4)-of C~cB AcC.,is not analo~o~'
Article 4 or_ Article
A~r~e~ent~.-~.S~ffice'i't
to.~say'th~t in our case most of the wor~ in t~ O~Fu~ un&~ passed
to CCS. Whether the transfer of th~ functions/'to.~. CCS will
.ultimately require, some reorganization of' the p~itiohs ~as'not
:" b~fOr~! u~"~.~ut .I~ agree with Mr.~R.ichards.' argument .that a few
.... ~rea'ter ~aCititi~ ~n~skfD traciqg,~and a different computer program
~':~°~0t'chahge the'pSsi~ions. ,There is 9f course no question of.'the
' "~ht o~ .C6~Soc '%67,~et .out .of the collection ,bus/ness and hand it
6vet 'to' C~$. 3 Th~'..issde'is whether without- %ransferring ~he
p~sk~ions~ the - Ministry' can accomplish, this obJec3 without
violating the Coliective Agreement, Of course,.the other side of'~
'~he"~oln.is .t~at ~n employee in-~ORFUS.who did'not wish"to transfer
t0'~CS woUld-nOt then.be-~ble to 'invoke-~rti¢!e 24.
""Was~there. a~"materiai~chan~e.in organizatlon"~ It 'is clear
from Mr. ~-~e~rt'~ ~testlmony::that ~- sectton~.~ ~ units, even whOle
diviSionS":~e~larly sw~tch Minis~rie~.~-, we ,also 'see frgm the
Skinner decision that when 'the positions, are broken up, new
positions are created and 01~ posi%lons' are abolished.. But in our
case, Mr. RiChards.iS'correct; we do'not'know whether the positions
are being broken ~p or not because we do ~ot. know until the
functions are.placed in CCS in the Ministry of Government Services.
I% ma~ ultimately, be that. as the functions, arrive in CC$. the~ wiii
be dispersed Or there may be fewer positions left and we may get ..
a Skinner set Of facts. But on this evidence, it'is in fact-
''_premature to decide~-_'The remaining issue is whether Article 24 is
Minist~ specific. There is nothing in the language identifying
reasons for lay-off which suggest that it applies s%mply because
the functions are trans.ferred out of the Ministry. Once a lay-off
does' occur, the Article,does distinguish the order of assignment
rights first within the employee's Ministry and then outside the
Minis'trY but 'OUr determin~tion of ,.whether the p,o, si~£on i.s. abo.!ished
:is hot ~ccording to-the'l'~anguage affected by,whether the~position
is transfe~red' with~'n or out of the Minis, try~ I,;,need not..,decide
whether a~ actual -estoppel has' been 'proven,.: bUt,. Mr. S,t, ewart'; ~ s
ev£dence"is relevant to establ£shing the factual background in
which gogernment reor~anizations, have- occ.u, rr.ed in. the..pas,t,:
Accbrdingly, ~-I am satisfied that on. these facts the conditions
se~· out in 'the ter~s ~of Article 24 had not come :i,~n~o exist?nce at
tl'~e ~:ime tl~a'~ -t:he let'~ers of surplusage were iSsued m'~d therefore
I deci~re that those'letters were void. · As ~he Union requested and
as ~hts Dec/sion contemplates' th~s Board ;w/,ll remain se£sed of
\.
these'"'grie~ances to decide, any.issues': between ~he. parties. ..that may
r'esui~ from ~h.is declaration.
Dated ' a~-:Toronto 'this 8th day of~'Augu~t .~., · 19~0.
Thomas Wilson- ce_Chairpers
~ Klym // Member
' I. Cowan Member