HomeMy WebLinkAbout1989-1548.Read et al.90-12-19 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARtO
GRIEYANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 D'UNOAE; STREET WEST, SUITE2100, TORONTO, ONTARIO. M5G 1Z$ TE[,EF~ONE/TELEPHONE: [4~6~ 326-;388
180, RuE OUhlDA$ OUEST, BU,qEAU 2100, TORONTO (ONTAPtlO). M5G IZ8 F'ACSfMiLE/'t'£L._~COPfE : (.~r6j 326-r396
1548/89 & 2015/89
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE Ga~EVANCE SETTLEI~ENT BOARD
BETWEEN=
OPSEU (Read et al)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Health)
Employer
- and -
BEFORE= M.R. Gorsky Vice-Chairperson
G. Majesky Member
D. Clark Member
FOR THE M. Kuntz
GRINVOR: Grievance Officer.
Ontario Public Service
Employees Union
FOR THE J. Baker
ENPLOYER: Counsel
Hicks Mor.ley Hamilton
Stewart Storie
Barristers and Solicitors
HEARING:' April 23, 1990
DECISION
Ail of the Grievors in this case, Adrianne Read, Diane Van
Luven, Lorna Davison and Donna Munro, were Group Processing
Clerks employed by the Employer at its 49 Place d'Armes office in
Kingston,Ontario, each of them was classified as an OAG 8, and
their work was related to the processing of OHIP premiums. It
was agreed that the facts relating to the claims of each of the
grievors were such that evidence would be heard only with respect
to Ms. Van Luven's grievance and the result would be applicable
to all of the Grievors.
Exhibit 2A is a letter which was sent to Ms. Van Luven,
dated July 7, 1989, by Patricia E. Malcolmson, Acting Executive
Director, which letter is as follows:
"July 7, 1989
Diane Van Luven
Central Production Services
Kingston, Ontario
Dear Diane:
As a result of {he legislated elimination of health
insurance premiums, the Ministry will De implementing a
number of organizational ~hanges to meet new program
requirements.
I regret to inform you that your position has been
identified as one of those to be declared surplus.
This letter serves as your notification in accordance
with Section 22(4) of the Public Service Act and
Article 24.1 of the Collective Agreement. The formal
date of the abolition of your position has yet to be
determined, but will not be less than 6 months from
today. My purpose in writing at this time is to
initiate your rights and responsibilities described in
Article 24 of the Collective Agreement.
2
You will be advised at the earliest possible'time of
the date on which your position will be declared
surplus.
I sincerely regret the need for this action and wish
to acknowledge your past contribution to the work of
our organization.
Sincerely,
'Patricia E. Malcolmson'
Patricia E. Malcolmson
A/Executive Director"
As will become apparent later in this Decision, the
difference between the parties relates to the way in which they
interpret the provisions of Article 24 of the Collective
Agreement. Article 24 is as follows:
'"]%RTICLE 24 - JOB SECURITY
24.1 Where a lay-off may occur by reason of
shortage of.work or funds or the abolition of
a posit/on or other material change in
organization, the identification of a surplus
employee in an administrative district or
unit, institution or other such work area and
the subsequent assignment, displacement .or
lay-off shall be in accordance with seniority
subject to the'conditions set out in this
Article.
24.2.1 Where an employee is identified as surplus he
shall be assigned on the basis of his seniority to
a vacancy in his ministry within a forty (40)
kilometre radius of his headquarters provide he is
qualified to perform the work and salary maximum
of the vacancy is not greater than three percent
(3%) above nor twenty percent (20%) below the
maximum salary of his classificatiOn, as follows:
- a vacancy which is in the same class or
position as the employee's class or position;
- a vacancy in a class or position in which the
employee has served during his current term
of continuous service; or
- another vacancy.
24.2.2 With mutual consent a surplus employee shall be
assigned to a vacancy in his 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
in accordance with the provisions of the
Employer's policy.
24.2.3 Where an employee has not been assigned in
accordance with sub-sections 24.2.1 or 24.2.2, he
shall be assigned on the basis of his seniority to
a vacancy in another ministry within a forty (40) '
kilometre radius of his headquarters provided he
is q~/alified 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, as
follows:
- a vacancy which is in the same class or
position as the employee's class or position;
- a vacancy in a class or position in which the
employee has served during his current term
of continuous service; or
- another vacancy.
24.2.4 Effective March 16, 1987, with mutual consent, a
surplus employee who has not been assigned in
accordance with subsections 24.2.1, 24.2.2 or
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%) beiow the maximum
salary of his classification. Relocation expenses
shall be paid in accordance with the provisions of
the Employer's policy.
24.3 Where an employee is assigned to a vacancy in
accordance with sub-sections 24.2.1, 24.2.2,
24.2.3 or 24.2.4, Section 5.4 of Article 5 (Pay
Administration) shall apply.
24.4 An employee who does not attend a placement
interview when requested by the Employer or who
does not accept an assignment in accordance with
sub-section 24.2.1 or 24.2.3 shall be laid off and
the provisions of Sections 24.5, 24.6 and 24.10
shall not apply.
24.5. Where an employee has not been assigned to a
vacancy in accordance with sub-sections 24.2.1,
24.2.2, 24.2.3 or 24.2.4, he shall be subject to
lay-off in accordance with the following
applicable sections.
24.6.1 An employee who has completed his probationary
period and who is subject to lay-off as a surplus
employee, shall have the right to displace an
employee who shall be identified by the Employer
in the following manner and sequence:
(a) The Employer will identify theemployee with
the least seniority in the same class in
which the surplus employee is presently
working and if such employee has less
seniority than the surplus employee, he shall
be displaced by the surplus employee provided
that such employee is in the same ministry
and within a forty (40) kilometre radius of
the headquarters of the surplus employee and
provided that the surplus employee is
qualified to perform the work of such
employee;
(b) If no employee in the same class has less
seniority than the surplus employee, the
Employer will. identify the employee in-the
class in the same class series immediately
below the class in which the surplus employee
is presently working who has the least
seniority and if he has less seniority than
the surplus employee, he,will be displaced by
the surplus employee provided that such
employee is in the same ministry and within a
forty (40) kilometre radius of the
headquarters of the surplus employee and
proVided that the-surplus employee is
qualified to perform the work of such
employee;
(c) Failing displacement under (a) or (b) the
Employer will review the classes in the same
class series in descending order until a
class is found in which the employee with the
least seniority in the class has less
seniority than the surplus employee. In that
event'such employee will be displaced by the
surplus employee provided that such employee
is in the same ministry and within a forty
(40) kilometre radius of the headquarters of
the surplus employee and provided that the
surplus employee is qualified to perform the
work of such employee;
(d) Notwithstanding the above, in the event that
there are one or more employees in one or
more classes in another class series in which
the surplus employee has served during his
current length of continuous service who have
less seniority than the surplus employee, the
surplus employee will displace the employee
with the least sen'iority in the class with
the highest salary maximum (no greater than
the current salary maximum of the surplus
employee's class) and provided that the
surplus employee has greater seniority than
the displaced employee hereunder, provided
that such employee is in the same ministry
and within a forty (40) kilometre radius of
the headquarters Of the surplus employee and
provided that the surplus employee is
qualified to perform the work of such
employee.
24.6.2 Any displacement shall be limited to a class which
has a salary maximum no greater than the maximum
of the surplus employee's current class and
Section 5.4 of Article 5 (Pay Administration)
shall not apply.
24.7 The employee must indicate in writing to the
Director of Personnel his intention to displace
another employee as far in advance as possible but
not later than two (2) weeks in advance of his
date of lay-off. If he does not indicate his
intent to displace another employee within this
period, he shall be deemed to have opted to be
laid off and the provisions of Section 24.10 shall
not apply.
24.8 Where the employee chooses not to exercise his
rights under Section 24.6 he shall be laid off and
the provisions of Section 24.10 shall not apply.
24.9 An employee who is displaced by an employee who
exercises his right under Section 24.6 shall be
declared surplus and the provisions of Article 24
shall apply.
24.10.1 Effective March 16, 1987, where a surplus employee
has not been assigned to a vacancy in accordance
with Section 24.2 and no displacement is possible
under Section 24.6 and the employee is within the
6
two (2) week period prior to his date of lay-off,
he shall be assigned on a retraining basis~ to a
vacancy in his ministry within a forty (40)
kilometre radius of his headquarters, subject to
the following conditions:
(a) Such assignments shall be made on the
basis of seniority;
(b) Such assignments shall be made during
the two (.2) week period prior to the
employee's date of lay?off, where, based
on information in its records or as
provided by the Union or the surplus
employee, the ministry determines that
the employee has transferable skills
which would enable him to meet the
normal requirements of the work of the
vacancy within a maximum retraining
period of twenty-five (25) days.
(c) Such assignments shall be limited to a
class which has a salary maxim~u~ no
greater than the maximum of the surplus
employee's current class and Section 5.4
of Article 5 (Pay Administration)'shall
not apply.
(d) Where a surplus employee is assigned to
a vacancy in accordance with 24.10.1 his
date of lay-off shall be extended to
accommodate the. retraining period and to
maxim,am of twenty-five (25) days;
(e) A surplus employee who has been assigned
to a vacancy in accordance with 24.10.1
shall have no rights under Sections 24.2.
or 24.6 following his original date of
lay-off;
(f) If, at the end of the. retraining period,
the surplus employee meets the normal
requirements of the vacancy to which he
has been aqsigned, he shall be confirmed
in that vacancy;
(g) If, at the end of the retraining period,
the surplus employee does not meet the
normal-requirements of the vacancy to
which he has been assigned, he shall be
laid off without any additional notice
under Section 24.11.
24.10.2 In 24.10.1 Ih) and (d), days shall include
all days exclusive of Saturdays, Sundays and
designated holidays.
24.10.3 A surplus employee who does not accept an
assignment in accordance with 24.10.1 shall
be laid off.
24.10.4 Where an employee has been assigned under
24.10.1 to a vacancy in a class with a salary
maximum lower than the salary maximum of the
class he held immediately prior to such
assignment and subsequently he is laid off in
accordance with 24.10.1 (g), any termination
payments to which he may be entitled under
Article 53 (Termination Payments) shall be
based on the salary he was receiving
immediately prior to the assignment under
24.10.1.
24.10.5 The assignment of a surplus employee to a
vacancy in accordance with Section 24.2 shall
have priority over an assignment under
24.10.1.
24.11 Effective March t6, 1987, an employee shall
receive a notice of lay-off or pay in lieu
thereof'as follows:
(a) two (2) weeks' notice if his period of
employment is five (5) years;
(b) six (6) weeks' notice if his period of
employment is five (5) years or more but
less than ten (10) years; and
(c) twelve (12) weeks' notice if his period
of employment is ten (10) years or more;
with copies of such notice to the Human
Resources Secretariat and the Union.
24.12 An assSgnment under this Articl~ shall not be
considered a promotion or a demotion.
24.13 Where an employee has been identified as
surplus, reasonable time off with no loss of
pay and with no loss of credits shall be
granted to attend'scheduled interviews for
positions within the public service, provided
8
that the time off does not unduly interfere
with operating requirements.
24.14.1 Effective March 16, 1987, where a person who,
prior to release, had completed at least one
(1) year of continuous service, has been
released and a position becomes vacant in his
former ministry within a forty (40) kilometre
radius of his former headquarters within one
(1) year after his release, notice of the
vacancy shall be forwarded to the person at
least fourteen (14) days prior to the closing
date of the competition and he shall be
appointed to the vacancy if:
(a) he applies therefor within the fourteen (i4)
days, and
(b) he is qualified to.perform the required
duties, and
(c) no other person who is qualified to perform
the required duties and who has a greater
length of continuous service applies for the
vacancy pursuant to this subsection.
24.14.2 Appointment under 24.14.1. shall be limited to a
class which has a salary maximum no greater than
the maximum.of the class the person held when
identified as a surplus employee and Section 5.4
of Article 5 (Pay Administration) shall not apply.-
24.14.3 A person shall lose his rights under 24.14.1 when:
(a) he does not attend a placement interview when
requested by the Employer; or,
(b) he does not accept~an appointment in
accordance with 24.14.1; or
(c)' having, accepted an appointment in accordance
with 24.14.1, he fails to report for duty
within two (2) weeks of receiving written
notice of the appointment.
24.14.4 The assignment'6f a surplus employee to a vacancy
in accordance with Sections 24.2 or 24.10 shall
have priority over an appointment under 2~.14.1.
24.14.5 Where an employee who has been released is
reappointed under this Article to the same
position or a position having the same
classification as the position which he occupied
immediately prior to his release, he shall be
reappointed at a rate within the salary range
applicable to the position equivalent to the rate
at which he was paid immediately prior to his
release.
24.14.6 Where a person who has been released is appointed
under this Article to a position in a
classification that is not the same as the
classification of the position which he occupied
immediately prior to his release, he shall be
appointed at a rate within the salary range
applicable to the position commensurate with his
qualifications and experience, including previous
relevant public service.
24.15 It is understood that when it is necessary to
assign surplus employees or appoint persons in
accordance with this Article, the provisions of
Article 4 (Posting and Filling of Vacancies or New
Positions) shall not apply.
24.16.1 Effective March 16, 1987, where it is necessary to
. release an employee who has completed his
probationary period, because of the introduction
of technological change in equipment or methods'of
operation, at least three (3) months' notice in
advance of the change shall be given to the
employee affected and to the Union.
24.16.2 The matter will then be referred to the joint
consultation committee of the parties to discuss
and to attempt to resolve the problem with
relation to the reallocation and retraining of the
affected employees with a view to minimizing the
effects of the Employer action required to be
taken. ~
24.17 For purposes of Article 24 lay-off means the same
as release as per Section 22(4) of The Public
Service Act, Revised Statutes of Ontario, 1980,
Chapter 418."
The Employer regarded Article 24.as providing for a measure
of job security for employees who might be laid off by reason of
shortage of work or funds or the abolition of a position or other
material change in the organization. This article mandated that
10
the procedure to be followed required the Employer to first
attempt to assign an affected emloyee to a vacancy, as is'
Provided for in Articles 24.2.1, 24.2.2, 24.2.3 and 24.2.4,
before the employee is given the right to displace an employee
identified under the provisions of Article 24.6.1.
Exhibit 2B is a letter dated August' 15, 1989 from
Ms. Malcolmson to Ms. Van Luven, which is as follows:
"August 15, 1989
Diane Van Luven
Central Production Services
Kingston, Onta=io
Dear Diane:
Further to my letter of July 7, 1989, I am writing
to advise you that the date which your position becomes
surplus is May 15, 1990.
The enclosed pamphlet, "Your Guide to the Premium
Transition Program Employee Assistance Package",
contains information on training and tuition fee
assistance, developmental assignments, job-search and
placement strategies, and termination assistance.
The guide has been developed to help you meet your
personal needs and make informed career decisions. If
you have any questions concerning the information
contained in this guide, please contact your local
Surplus Co-ordinator, or call the Human Resources
ProjeCt Hotline at (613) 548-6271~
Once again, I wish to express my regret that your
position has been declared surplus, and assure you that
every effort is being made by the Government to find
alternate employment for you within the Ontario Public
Service.
Sincerely,
'Patricia E. Malcolmson'
Patricia E.~ Malcolmson
A/Executive Director"
11
On August 22, 1989, Ms. Van Luven sent a memorandum to the
Director of Personnel, Mr. R. Oss, which is as follows:
"I wish to advise you that it is my intent to exercise
my rights under Article 24.6.1 immediately, & request
that you advise me of the employee to be displaced."
As noted above, it was the view of the Grievors that they
were not required to wait the conclusion of the assignment
process but had the option of first exercising their rights under
Article 24.6.1 to displace junior employees.
Exhibit 2D, is a letter dated September 12, 1989 from
Mr. Oss to Ms. Van Luven, and is as follows:
"September 12, 1989
Diane VanLuven
R.R. #1
Inverary, Ontario
KOR lX0'
Dear Ms. VanLuven:
I have received notice of your intention to exercise
your rights under Article 24 of the Collective
Agreement to displace another employee.
You are currently entitled to be assigned to a
vacancy in accordance with Article 24, subsections
24.2.1., 24.2.2., 24.2.3 or 24.2.4 of the Collective
Agreement. I am confident that the Human Resources
staff in Kingston will do their'utmost to find an
appropriate position for you.
Only when all assignment possibilities under those
provisions have been exhausted and you have not been
assigned do you become a surplus employee subject to
layoff in accordance with.Article 24.5. At that time
you will have the right to displace another employee.
Since you have advised me of your intention to
displace, your memorandum will be retained on file and
acted upon at the appropriate time, if necessary.
Yours sincerely,
'R. oss~
12
Director
Human Resources Branch"
In accordance with the Employer's interpretation of Article
24, it proceeded to carry.out the requirements of the assignment
process and the Grievor was assigned to the position of Document
Processing Clerk - 0AG 6 with the Ministry of Transportation on
November 2, 1989, with a starting date of November 14,. 1989.
Exhibit 2F is a letter to Ms. Van Luven from Paul Mooney,
Director of the Redeployment Unit, Staffing Services Branch of
the Human Resources Secretariat of The Management Board of
Cabinet, which is as follows:
"Ms. D. Van Luven
c/o Mr. B. Rey
Ministry of ~ealth
Human Resources
· MacDonald - Cartier ~ldg. 2nd Floor
Kingston, Ontario
Dear Ms. D. Van Luven
RE: LC 89/16
I am pleased to advise you that, in accordance with
Article~24.2.3 of the Collective Agreement, you are
assigned to the position of Document-Processing Clerk -
060AD.
The schedule starting date of your assignment will be
Tuesday, November 14, 1989. Please report at 8:30
A.M. to 355 Counter Street - Main Reception.
You should be aware that Article 24.4 states 'An
employee who does not attend a placement interview when
requested by the employer or who does not accept an
assignment in accordance with subsections 24.2.1. or
24.2.3. shall be laid off and the provisions of
Sections 24.5, 24.6 and 24.10 shall not apply.'
Under the salary protection provisions of Article
5.4.1. of the Collective Agreement, you are entitled to
salary progression based on merit, to the maximum of
the 060AD range during the present cycle. This
assignment does not, of course, preclude you from
applying to any advertised competitions for which you
feel qualified.
Please indicate your decision by signing on the
appropriate line below and return this form to your
surplus co-ordinator by November ~6, 1989.
On behalf of the Ministry of Health, I would like to
thank you for your services to date and wish you every
success in your new position.
Yours truly,
'Paul Mooney'
Director"
Rather than face a layoff if she did not accept the
position, Ms. Van Luven indicated her acceptance by signing in
the appropriate place at the foot of the letter.
On receipt of the letter (Exhibit 2F) Ms. Van Luven filed a
grievance (Exhibit 2G) as follows:
"I grieve that I have been denied my rights under
Article 24.6.1 whereas I have been assigned and red
circled in a lower position and.not allowed to displace
another employee."
The settlement desired, stated:
"That I be given my rights under Article 24.6.1 and
reimbursed all monies and benefits lost due to being
red circled plus interest."
Reference to being "red circled" arises out of the
provisions of Article 5.4.1, which is as follows:
"Where, because of the abolition of a 9osition, an
employee is assigned:
(a} from one position in a ministry to another
position in the same ministry, or
(b) from a position in one ministry to a position
in another ministry.
and the Position to which he is assigned is in a class
with a lower maximum salary than the maximum salary for
the class of the position from which he was assigned,
he shall continue to be entitled to salary progression
based on merit to the maximum salary of the higher
classification including any revision of the maximum
salary of the higher classification that takes effect
during the salary cycle in which the assignment takes
~!ace. ,,
In response to the grievance, Larry Treverton, Acting
Manager, Group Processing, with the Human Resources Branch, of
the Ministry. of Health, wrote to the Grievor-as follows: (Exhibit
2J. )
"Ms. Diane VanLuven
R.R. #1
Inverary, Ontario
KoH lx0
Dear Ms. VanLuven:
I acknowledge receipt of your grievance, dated
November 2, 1989, in which you allege you have been
denied your rights under Article 24.6.1 of the
'Collective Agreement by being assigned, as a surplus
employee, to a lower classified position and not
allowed to displace another employee.
You wrote to Mr.'R. Oss, Director, Human Resources
Branch, on August 22, 1989 to advise him of your intent
to exercise your rights under Article 24.6.1. Further,
you indicated your desire to exercise those rights
immediately and asked that he identify the employee to
be displaced.
In his response Mr. Oss explai-ned the application of
Article 24. Only when all assignment possibilities
under Article 24, Section 24.2, have been exhausted and
you have not been assigned do you acquire the right to
displace another employee in accordance with Section
24.6.
By letter of November 2, 1989 you were assigned to
the position of Document Processing Clerk with Ministry
of Transportation. You accepted the assignment by
signing your name out he line above the following
words: 'I accept the above assignment' and returning
it to the Surplus Co-ordination Project Team.
Therefore you have been assigned to a vacancy and
are Dot subject to lay-off (Section 24.5). That being
the case, you do not have the right to displace another
employee in accordance with Article 24, Sub-section
24.6.1."
Mr. Treverton took the position that the provisions of
Article 24.6.1 did not apply where an employee had been assigned
to a vacancy in accordance with the assignment provisions of
Article 24. At the hearing, counsel for the Employer took the
position that it did not matter whether an employee had been
assigned pursuant to the provisions of Article 24. Counsel
argued that it was first necessary for the assignment provisions
to be exhausted before the displacement provisfons of Article
24.6.1 could be relied upon by an employee. That is, assignment
under the assignment provisions of Article 24 must be attempted
and only where the process is unsuccessful in finding an
assignment for an employee does the displacement right of an
employee under Article 24.6.1 arise.
On December 22, 1989, Mr. F. G. Feld, Director of the Claims
Payment Division Of the Kingston District Office of the Ministry
of Health wrote to Ms. Van Luven as follows:
%
"Ms. Diane Van Luven
R.R. #1
Inverary, Ontario
K0H lXO
Dear Ms. Van Luven:
We met on Monday, December 18, .1989 to discuss your
grievance of November 2, 1989, concerning Article
24.6.1 of the Collective Agreement, at Step 2 of the
Grievance Procedure.
It was quite apparent that neither you, nor your union
representative, agree with management's interpretation
and application of Article 24 of the Collective
Agreement, specifically Section 24.6. It was also
stated by Ms. Wood that this grievance will be
processed to the Grievance Settlement Board for a
decision.
You were assigned, by letter of November 2, 1989, to a
vacancy in the Ministry of Transportation in accordance
with Article 24, Section 24.2 of the Collective
Agreement. On accepting that assignment you were
removed from the-surplus list and thus are not subject
to layoff as defined in Section 24.5. Therefore, you
have no right to displace another employee in
accordance with Section 24.6.
Therefore, your grievance is denied.·
Yours truly,
'F. G. Feld'
F.G. Feld
Director"
Mr. Feld's letter merely reinforces Mr. Treverton's ~view as
set out in Exhibit 2J.
In support of' the argument that the provisions of Article 24
represent a continuum which prohibit employees from bypassing the
assignment process for the displacement process, counsel for the
Employer referred to the case of Teresa· Becket #511/82 (Samuels),
dated May 16, 1983. The issue in that case was unlike the one
before us in that it deals with an employee's rights under the
portions of Article 24 dealing with assignment. There, it was
stated at p.14:
"Article 24.2.1 provides that this position shall be
in the employee's own ministry. Article 24.2.2 allows
for an assignment to a vacancy in one's own ministry
beyond 40 kilometres 'with mutual consent'. Then
Article 24.2.3 provides for an assignment in s~me other
ministry, 'where an employee has not been assigned in
accordance with sub-section 24.2.1 and 24.2.2".
These qualifying words in Article 24.2.3 make it
clear that, if an assignment can be made within the
terms of Articles 24.2.1 or 24.2.2, Article 24.2.3 does
not come into operation. Therefore, it is possible to
be assigned to a position carrying a reduced salary in
one's own ministry, though there are vacancies
elsewhere at the same level as the employee's current
classification, available at the same time."
Counsel for the Employer relied on the provisions of Article
24.5 in making the same argument. However, the argument was not
that Article 24.6.1 did not apply because Ms. Van Luven had been
assigned to a vacancy in accordance with ss.24.2.2, but because
Article 24.5 ought to be interpreted so as to find a continuum
within Article 24 requiring a staged resort to its provisions:
assignment, displacement and then layoff. If Ms. Van Luven's'
position is correct, the fact that she permitted an assignment
can only be seen as a means of avoiding, the provisions of Article
24..4, which would have precluded her from resorting to
displacement rights under Article 24.6.1 and to her rights under
Article 24.1.0. As noted, in the case before Mr. Samuels, the
Board was dealing with the assignment process and found that it
provided for a continuum with the earlier provisions having to be
resorted to first. Where it is argued ~that alternative rights
(assignment or displacement) are available, the argument that
moved Mr. Samuels cannot have the same effect in the case before
Nevertheless, Mr. Samuels,made a valid point in the
Becker case at p.13:
"At the outset, it is important lto make it clear
that this Board cannot create a set of rights and
obligations which seem, to the Board, to be the most
desirable or reasonable. Our role is restricted to
interpretting (sic) the Collective Agreement arrived at
by the parties. What have they said about their
respective rights in their Agreement?
Secondly, it is worth noting that, from the evidence
we heard about the process of relocating surplus·
employees, it is obvious that it is a very complex
matter, and will always be terribly complicated when
there are many surplus employees, as there were in
mid-1982. There is clearly no simple way to assign the
surplus employees so that each one is placed in a new
'position which preserves all the employee's fo~mer
salary and leaves the employee doing the same or
roughly similar work."
The above quotation from the Becket case was q~oted with
approval by Mr. Verity in Palan~io 227/83 at p.7, which Decision
was dated March 7, i984. ~
At p.8 of the Palangio case, the Board stated:
"It would appear that Article 24 provides a certain
measure of job Drotection in the sense of guaranteeing
a job and the avoidance of a sudden lay-off, but does
not provide classification protection. The purpose'of
the Article generally is to provide employment
stability and salary stability on the basis of
seniority. Assignment of employees on a seniority
basis means that the more senior the employeE, the
earlier the assignment.
There is an aspect of the 'luck of the draw' as is
patently evident on the facts of the instant
Grievance. Here, we find three other employees who had
identical jobs to the Grievor an~ worked in th~ same
office as the Grievor did obtain better jobs than the
Grievor. However, that situation cannot be avoided
under the present wording of Article 24. The wording
of that Article does not permit an employee to shop~
around for assignments. Simply stated, if an
assignment is offered and refused, the employee is then
subject to lay-off.
The only choice given to a surplus employee under
Article 24 is to accept an assignment or to face
lay-off. The assignment provisions of surplus
employees under that Article is not designed to provide
an employee with a preferred job, or a choice among
jobs, or even the same job. It is designed however, to
provide a job with an element of Salary protection
through the device of the assignment and the red
circling provisions.
The process of assignment of sUrplus employees must
have a degree or order and sequence in view of the
numbers of employees involved in a major reorganization
such as the Kingston relocation; otherwise chaos would
be the end result."
Article 24 is an unusual Article, which is quite different
from similar provisions found in the private sector which deal
mainly with displacement rights of senior employees. If it had
been the intention of parties to permit employees subject to
Article 24~1 to circumvent the assignment procedure, it would
have been a simple matter to say so. As it is, the parties have
drafted a job security provision which.creates employee rights
which move through successive stages of assignment, displacement
or layoff. While I would not, in the Circumstances, find the
acceptance of the assignment by Ms. Van Luven as precluding her
arguing that the assignment right and the displacement right are
not part of a scheme that must be followed; having considered
Article 24 in its entirety, I would agree with Mr. Verity,
although in a different factual context, that the situation
cannot be avoided given the present wording of Article 24. I
find that that Article does not permit an employee to forego the
process of assignment. Where assignment is offered and refused
the employee would be subject to layoff without any rights under
Article 24.6.1. The wording of Article 24 leads me to the same
conclusion as arrived at by Mr. Verity, although in a different
factual context. That is: "The only choice given to a surplus
20
employee under Article 24 is to accept an assignment or to face
layoff .... "
As Mr. Verity noted, although restricting his comments to
the process of assignment, there must be: "... a degree of
order 'in sequence in view of the number of employees involved in
a ma]or reorganization ... otherwise chaos would be the end
result." Not only employees hage a genuine concern over the
subject of job security when there is a material change in
organization or the abolition of a position. The Employer is
concerned with carrying out a reorganization in an orderly
fashion. If employees had a choice between assignment and
displacement rights, the situation for the Employer could become
truly chaotic. I am satisfied that if the parties had decided to
create alternative rights (either assignment or displacement) in
favour of employees affected by Article 24.1,'it would have been
a simple matter to say so. In drafting Article 24.1 as they did
the parties created a scheme that is much more consistent with
the establishment of a mandatory process moving from assignment
to displacement to'layoff. In each case subject to certain
rights and subject to the penalty of a loss of those rights where
an employee~does not accept an assignment as provided for in
Article 24.4.
At the opening of the hearing, counsel for the Grievor
submitted that there was also a claim being made: that in
.establishing the list of employees who are to be laid off
pursuant to the provisions of Article 24.1, the Employer.should
21
have included employees in the OHIP office, in Kingston, with
less seniority than the Grievors, even though the position of the
last mentioned employees would not be affected by the abolition
of OHIP premiums.
Counsel for the Employer objected to such an issue being
dealt with by the Board, because it had not been raised in the
grievance. We determined to hear the evidence and argument with
respect to the latter claim and to rule on the objection in our
decision.
The argument made by counsel for the Grievors was that its
reading of the provision~ of Article 24.1 as requiring the
identification of the junior employees referred was consistent
with the statement in Article 24.1 that: "... the subsequent
assignment, displacement or lay-off shall be in accordance with
seniority subject to the conditions set out in this Article."
What was being requested was a form of.pre-displacement. That
is, if the junior employees were placed on the list, then the
Grievors could move into their positions (the employees referred
to were also OAG Ss). There are a number of reasons why such an
argument cannot succeed. It is only necessary to refer to the
fact that Article 24.1, in referring to assignment, displacement
or layoff rights, does so, not only in accordance with seniority,
but "subject to the conditions set out in this Article."
Displacement rights under Article 24.6,1 are subject to
seniority, and displacement rights only arise after the failure
to secure a position for an employee identified Under Article
22
24.1 through the process of assignment. What the Grievors' ask
for'is the Creation of.a right which they regard as "logical".
This cannot be achieved under Article 24.1. The other employees
working for OHIP were not su~lus employees. If they could be
treated as surplus employees, then the Grievors would not have
been surplus employees and would have had no rights under Article
24, which only grants rights to surplus employees. What the
Grievous really request is that the surplus list include them as
well as the employees whom they wish to displace and they ask for
an immediate right of displacement. That is, displacement
without going through the assignment procedure. For the reasons
above described, this is not what the parties have agreed to.
In any eventl the form of the grievance makes no claim with
respect to the establishment of the list of employees to be
placed on the list of surplus employees and.there 'was no evidence
to indicate that the parties treated the grievances as raising'a
claim involving identifying the junior.employees too, as surplus
employees pursuant to Article 24.1. I would have, therefore,
allowed the objection and refused to entertain any argument~with
%
respect 'to the latter issue.
For all of the above reasons, the grievances are denied.
DATED AT Toronto, Ontario
this 19th day o£Dece~e~990.
M. R. Gorsky, Vice-Chairperson
"I DISS~qT" (D[ssen£ attached)
(~. Majesky - Member
D. Clarki- Member
B~;Wk~N OPS~' <READ et al )
- and -
THE ~ IN TEE RIGHT OF ONTARIO
548/89 & o 5/89
lYl~ZO~
I have reviewed the majority award in this 'ma=~er, and with
.eyes wide open, I must dissent. The crux of this case is
whether senior employees can bump more junior employees. It
would stand to reason that this sacred principle of seniority
opera,es within the CECBA collective agreement. Or does it?
The award in this ca~--{-~dic~tes to the contrary, that is, the
negative.
The issues in s~m~ry:
,1) Union asserts right for senior employees to bump junior
employees.
2) Lang~age in Collective Agreement doesn't impose the
interpretation arrived at by the ~ajorit¥ in .this award.
Jurisprudence is disting~ishable (Samuels/Verity), in that
the issues were materially different and didn't deal with
rights of seniority and displacement.
4) Nothing in article 24.6 speaks to time guidelines.
5) The OHIP office,' due to phasing out of the premium
collection department (a massive layoff/re-organization)
treated OAG 8 employees differently 'in the Kingston
office, depending on which department they worked
This is a narrow application of the seniority/bumping
principle.
6) As a result of our award, and ~hOse preceding this mat%er,
would give the employer all rights. That proposition is
incorrect, because for there to be a balance of the
interests, employees must be able'to displace less senior
employees.
7) If parties had intended for employees to not exercise
"bumping rights" until the process unfolded, then the
parties would,have had express language for the employer
to notify them about when all placement opportunities were
exhausted. That language is utterly absent. Frank!y,
there is no obligation for the employer to notify the
employee. That absence is an important one.
In our award, the majority of the board made reference to the
continuum principle which dictates that article 24 unfolds
sequentially. On that point, Mr. Samuels made no such
utterance in the Becket case with respect to whether the
operation of article 24 unfolds in a numerically lock-step
fashion. Frankly, as noted in our award, Samuels was dealing
with a simple proposition of assignment and found that article
24 provided for a continuum with the earlier provisions having
to be resorted to first. What distinguishes Samuels in
Becket, from Gorsky in Read et al, is the fact that the union
argues that the membership have ~lternative rights ie.
assignment or displacement. Thus, the argument presented by
Samuels is distinguishable from the instant case.
In our award, the majority aisc makes reference to Mr. Verity
in the Palangio case, with respect to whether an employee can
forego assignment in favour of electing another option. Mr.
Verity determined that article 24 unfolds sequentially, thus
the only option available to employees is layoff should they
choose not to elect assignment. Therefore, Mr. Verity has
concluded that article 24 provides for assignment, and if it
is refused, then layoff occurs with no access to article
24.8.I. Our award affirms the conclusion arrived at by
Verity, although in a different factual context. That is:
"accept an assignment or to face layoff .... "
The union's position is with considerable merit. As a result
of abolishing premiums, the work originally performed is now
non-existent. Layoff occurred in Kingston among the OAG 8
group. Employees were served notice in July 1989 - effective
May 1990. The grlevors advised the employer in fall of 1989
that they wanted to displace Junior employees. The employer
took the'position the grievors had no right.
The Seniority List in ~his case is central. As a result of
the layoff, the Ministry had to correct the list by seniority,
That is: 214 employees who were OAG 8. The grievous are
rightly perturbed in that their seniority is greater than
Junior employees who continue to work as OAG 8 in the original
workplace. Grievors were advised of layoff and told it wasn't
relative ie., layoff/bumping by seniority. Thus, layoff
notices went out without reference to seniority.
The essence of the award clearly supports a narrow scope
of what constitutes the grievors workplace. A parallel would
be to describe the process as one of Departmental Seniority.
That is the most narrow form and application of seniority
rights. Additionally, OAG 8 is not a classification
consisting of rocket scientists, and.there is a great deal of
portability of employee skills within the OAG 8 group, thus,
the Kingston OHIP office should have 'recorded the seniority of
ali OAG 8 staff, and made assignments after determining
seniority on the basis of the full OAG 8 workforce compliment
at the Kingston OHIP office. By allowing the employer to
define seniority in such a narrow fashion is contrary to the
arbitral principle, that seniority, absent specific language
must be broadly construed.
The union was also quite correct in reiterating that there is
a presumption that seniority rights and consequences should be
broadly construed.' Utilizing this line of thinking, the board
should have allowed workers to maximize the seniority
opportunity, and then been allowed to bump junior employees.
The board was also asked to be cognizant of the principle of
seniority rights or colloquially known as "bumping" by
referring'to Brown and Beatty 2nd, 6:2330, pg. 263-285, Brown
and Beatty describe the traditional definition of "bumping" in
that a senior employee "bumps" a single junior employee, but
are mindful that the~terms of the agreement will dictate the
process in each instance.
The employer argues that the union's position would lead to
chaos and administrative burden. Secondly, the employer
argues that the danger to accepting the union's position is
the resultant "domino effect" where a' lay-off of a full-time
worker will create this "exponential domino effect", leading
to chaos. That is nothing more than political rhetoric.
As a matter of fact, "bumping" and the preservation and
retention of senior employees requires that there be some
administrative inconvenience. It's the nature of the beast.
A c~rsory examination of Brown and Beatty 2nd, 6:2330, pg.
S85,. described the expectant complications and consequences' to
the practice, which no matter how chaotic, are the. trade-off
to preserve the status of senior employees:
"Bumping is the procedure by which the employee
with the greatest seniority who is about, to be laid
off is allowed to invoke her seniority rights so as
to displace, or bump, a more junior employee from a
job unaffected by the lay-off. A chain process is
set off in which the displaced em~ployee in turn is
permitted to exercise his seniority rights against
some other employee Junior to himself134''
[emphasis]
It appears that the general expectation of the arbitral
community is to recognize this chain-reaction of displacement,
but whether or not the employer calls ~it chaotic, does not
make the union position untenable. Frankly, on any given day,
the employer would argue,that the concept of "bumping" into a
singular position is chaotic, let alone a mass layoff. The
employer's argument was a standard saber rattling tactic,
designed to discredit not only the union's position for
"multiple bumping", but was also an introspective with respect'
to their attitude to "bumping" generally.
In my mind, there is no question that the collective agreement
is silent on this very matter of seniority calculation. As
was noted by the arbitrator in Re Norther Telecom Canada Ltd.
and U.A.W,, Local 1525 (1983), 9 L.A.C. (Sd) 224 (Picher) at
p. 229:
Canadian arbitrators have consistently recognized the
critical value of seniority rights to employees. They
have acknowledged a general presUmption in favour of
seniority rights: absent a clear .and express
restriction of seniority rights, a collective
agreement that confers individual rights based on
seniority should be construed so that doubtful
language is interpreted in a way tsar preserves and
enhances those rights. (emphAsis added).
Frankly, when one looks at the language in the awards of
Samuels, Verity and Oorsky, there is a conscious mention that
they ~are looking to the language (article 24), and, ~hey
appear to wrestle with wanting to give'the broader construsion
that seniority rights warrant, but alas, they certainly do not
construe doubtful language in a ~ay that preserves and
enhances those rights.
Looking to another award that broadly construes plant-wide
seniority, the arbitrator stated in Re H.J. McFarland Memorial
Home and Service. Employees Union, Local 183 (1984), 13 L.A.C.
(3d) 391 (Solomatenko) at p. 397:
It has been accepted by arbitrators, and ~ith .good
reason in view of the importance of seniority rights
in relation to other provisions of a collective
agreement, that where the agreement is silent as to
the type of seniority, it is to be construed as plant-
wide see Re Canada Glazed Papers Ltd. and Printing
Specialties & Paper Products Union, Local 466 (i97~),
13 L.A.C. (2d) 324 (Beck) at p. 329.
In our award, we have committed a fatal mistake. Firstly, the
whole seniority process is driven by the effective start date
of workers. Even if you subscribe to Samuels and Verity, you
must first determine the appropriate seniority within the
workplace. The employer argues the union is attempting to
circumvent the sequential unfolding of article 24. That is
completely false. I suspect that the.union would have lived
with the continuum theory of article 24, only if the scope of
the workplace, and the determination of seniority, encompassed
all ~orkers le., plant-wide vs. departmental seniority. In Re
Canada Glazed Papers Ltd. and Printing Specialties & Pap~F
Products Union, Local 466 (1976), 13 L.'A.C. (2d) 324 (Beck) at
p. 329:
The grievor may weI1 have quite properly and
understandably considered himself 'to be employed in
the Winder Department of Rolland Paper. But one could
make the comment that almost all plants are divided
into functional departments and almost ail collective
agreements provide for wage rates on the basis of job
classification, which classifications are specifically
set out. But the seniority clause in collective
agreements vary from agreement to agreement. Some
provide specifically for plant-wide seniority, some
for departmental seniority and some for job seniority,
and indeed some agreements provide for all three or
combination of any of the three. The essential point
is that this has not- been done in this collective
agreement. What we have here is no particular
specification as to seniority which leads to the
inference that seniority is on a plant-wide basis...
As counsel for the union pointed out, seniority is one
of ~he most important rights that a union member has
and it is usually one of the mosi carefully drafted
clauses in a collective agreement... (emphasis added)
After taking into consideration my above enumerated concerns,
I still have. one very major concern which speaks for itself.
When we examine the construction of article 24.1 the provision
performs a preamble function as to how Article 24 - Job
Security will operate.
ARTICLE24 - JOB SECURITY
24.1 Where a lay-off may occur by reason of shortage
of work or funds or abolition of a position or
other material change in organization, the
identification of a surplus employee in an
administrative district or unit, institution or
other such work area and the subsequent
assignment, displacement or lay-off shall be in
accordance with seniority subject to the
conditions set out in this Article. (emphasis
added)
Frankly, the construction of this article ie. assignment,
displacement or lay-off, clea-rly distinguishes the conclusion
arrived at by Verity in Palangio ie., accept assignment or
face lay-off. Obviously, the language in article 24 speaks to
a number of options available to workers. And in
consideration to the importance of seniority as a right, the
union's position that article 24 provides flexibility for
either assignment or displacement is further enhanced .on
review of article 24.1.
\ Accordingly, I have noted my dissent, and would hope that in
· the absence of strong awards from this board preserving
seniority, that perhaps some remedy will occur in the
collective bargaining .process and in the new relationship.
OPSEU has with this new government.
~espectfulIy submitted ,by,
Fp~~~.'~A~T.SERVICE8
Union N~minee
Re-submitted
November 1990
~, Ontario