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HomeMy WebLinkAbout1989-2022.MacNeil.91-08-23~'~ ONT,~RIO EMPL 0¥~'$ DE LA cOURONNE i: CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C.OMMISSlON DE SETTLEMENT REGLEMENT 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/T~L~fPHONE: (4'~6,1 326-'~385 180, RUE DUNCJAS OL, tEST, BUREAU2100, TORONTO (ONTARIO), MSG ~Z8 FACSIMILE/T~I..~COPfE ,. (416) 326-?396 2022/89 · N THE HATTER OF AN ARB~TRAT~ON Under THE CROWN RHPLOYEE8 COLLECTIVE BARG&INING ACT Before THE GRINV]~CE SETTLEHENT BOARD OPSEU (MacNeil) Grievor - and - · he Crown in Ri~h~ of Ontario (Ministry of Labour) Employer BEFORE: B. Fisher Vice-Chairperson P. Kl.~m Member D. Montrose Member FOR THE A. Ryder GRINVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE C. Slater EMPLOYER Senior Counsel, Labour Relations Office of Legal Services' Ministry of Treasury & Economics HE~RING November 29, 1990 March 27, 1991 This case involves Article 4.5 which reads as follows: "Relocation expenses shall be paid in accordance with the provisions of the Employer's policy". The relevant facts are not in dispute and can be conveniently listed as follows: 1. The Grievor joined the Minist~ of Labour in 1977 and until 1986 he lived and worked in the Sudbury area. 2. In 1986 the Grievor participated in a job competition and was successful. This new position entailed a move to Hamilton office. 3, At no time during the competition or-thereafter was the Grievor told of the Employer's Enhanced Relocation Plan (ERP) under wl~ich the Employer partially compensates a transferred employee for the difference in housing costs. 4. The Grievor subsequently found out about the ERP policy in 1988 from some co.workers who had received benefits from the plan. He then spoke to his supervisor in August 1989 about applying for ERP, He was subsequently told that if he applied it would be turned down. He filed his grievance Immediately. 5. The Grievor only formally applied for ERP in writing on January 4, 1990 after the second step grievance hearing. His application was rejected in a letter dated February 27, 1990 partly because Mr. Vick Pakainis, the Director of the Branch, took the position that ERP should only be negotiated at the time of hire and prior to acceptance of a job offer. 6. The ERP policy changed from the date which the Grievor moved to when he filed the ', grievance. The relevant excerpt from the old plan is as follows: · Excerpt from 'Relocation Expenses' Part 4: Enhanced relocaUon plan Deputy heads have non-delegable authority to negotiate a one time, lump sum, housing-cost differential payment to a maximum of $15,000. The purpose of this provision is to lessen the impact of relocation on those employees relocating to higher-cost housing. The enhanced relocaUon plan must only be offered when the following conditions exist, and when the deputy head initiates such action: 1. the relocation has been initiated by the ministry or the Human Resources Secretariat; 2. the relocation has identifiable benefits for both the ministry and the employee; 3. employees have provided adequate documented evidence of their housing-cost differentials to JusUfy the amount of the , lump-sum payment to be authorized by the deputy head. The extent of the financial assistance must be governed by the actual cost dlflerenUal of comparable living accommodation based on current indices of property values, first mortgage interest-rate differentials and property-taxes differentials. Excerpt from "RelocaUon Expenses - a Managers Guide' Enhanced Relocation Plan Regular classified staff employees who are relocated at the request of a ministry may, at the discretion of the deputy head, be compensated subject to the following conditions if an additional financial burden is Incurred. Eligibil~ This relocation is Initiated or explicitly requested by the ministry. The employee Is required to relocate to a higher-cost housing area. The relocation has Identifiable beneflt~ for both the ministry and the employee. The extent of the financial aulstance is determined by the actual cost differential of comparable living acoommodaUon based on current indice~ of real-estate value~, first-mortgage Interest rates and property taxes up to a maximum of $15,000. Three lump-sum paymente are made so that the employee can adjust gradually to the higher cost~ that must be borne. Note: This i~ a taxable benefit. The employee is required to provide adequate documented evident that: · Ute housing cost differenUals justify the amount to be re!inhumed-: , expense~ are directly attributable to the relocation, clearly reasonable and jusUflable. Requiremefl~ The enhanced relo~aUofl plan Is re~icted to a one-Ume situation. The Employee raquire~ the prior written, flondelegable ~flnrnv.'.ll nf ~he rlmm,~v hm~d tn mntmr the ill-in 7. The new policy Is as Excerpt from 'Relocation Expenses" Part 5: Enhanced Relocation Plan The Enhanced RelocaUon Plan is ai~Pllcable at the sole discretion of the deputy head and the authority to approve Its application must not be delegated. ~ The plan must only be applied when, in the opinion of the deputy head, it Is necessary in order to encourage an employment candidate to accept a position. Excerpt from 'Relocation Expenses - A Managers Guide" Enhanced RetocaUon Plan The Enhanced Relocation Plan was introduced in 1984 (revised in 1986) to assist ministries In recruiting staff into major urban areas with high housing costs. The plan is applied at the sole discretion of the deputy head and is based on a housing-cost differential. The plan is not intended to reimburse the total cost of a relocation to a higher-cost-of-living area. Rather, it is designed to assist in attracting needed human resources to higher.cost.of.riving areas by softening the Impact of a relocation. Financial assistance offered under the plan is considered a taxable benefit by Revenue Canada. EUGIBILITY Regular classified staff and personnel Joining' the Ontario Public Service who are relocated at the request of a ministry, may be compensated, at the discretion of the deputy head, subject to the following conditions: · the relocation is requested by the ministry; · the employee is required to relocate to a higher-cost housing area; . the relocation has Identifiable benefits for both the ministry . and the employee; · the employee accepts that the assistance is offered on the understanding that bis or her employment with the Ontario government will conUnue for at least two years; · the employee is not required to sell his or her residence at the former location in order to be considered for the plan. EXTENT OF ASSISTANCE The extent of the financial assistance for a relocation, up to the maximum permissible amount, is daJermined by negotiation between the deputy bead and the employee. Negotiations should commence during the recruiting process once the deputy head decides that assistance is to be extended. The negotiated assistance is to be' based on the difference between the actual costs of rented or owned accommodaUon at the new location and the former location, or, where appropriate, between actual costs and the value of 't:ompa~able' accommodation. The term 'comparable' takes into consideration the size, type and location of the accommodation. 8. The Grievor's application was coosidered solely under the new policy which apparently came into force sometime in September 1989. The grievance is dated October '16, 1689. 9. Two co-workers of the Griever, Mr. Alan Thibert and Ms. Unda Tesolin were granted ERP for their moves even though they only became aware of ERP after they had accepted the position requiring the move, Both Mr, Thibert's and Ms. Tesolln's applicaUon for ERP were decided under the old plan. The new policy is quite clear in that it is only intended to assist in attracting qualified candidates and therefore it is obvious that it can not be applied to a person who has already accepted the position without the promise of ERP. In other words, by definition, the new policy could not be used retroactively after the hiring. The old policy however may not contain such a clear IimltaUon, which is presumably why it was given retroactively to Mr. Thibert and Ms. Tesolln. The question then becomes, which policy should apply to the Grtevor's situation? In our opinion the Grlevor's application for ERP should have been considered under the old policy, for the following reasons: 1. The old policy was in force at the time the move took place. 2. The old policy was still In place when the Grievor first spoke to his superv;sor about ERP in August 1990. It was therefore improper for the Employer to consider the Grievor's application under the new policy, rather it should have been considered under the old policy. Insofar as the Employer In effect asked Itself the wrong question, it is not appropriate for this Board to decide the issue itself, rather the matter should be remitted back to the Employer under the following conditions: 1. The Employer shall reconsider the Grlevor's application under the old policy. 2. The decision maker on behalf of the Employer shall be someone other thaJ~ Mr. PakaJnJs. 3. If the Ministry determines that they need more data from the Grievor in respect to his applicstion for ERP they shall advise the Grlevor in wriUng within 20 days of the date of this Award of those Inadequac!es. The Grievor is to have 40 days from that date of notiflcaUon to supply further information to the Ministry. · 4. The Ministry's decision is to be made withb~ 20 days of receipt of the information referred .~ to in paragraph 3 above. If the Ministry does not request any information pursuant to paragraph 3 above, they shall give their decision in writing with 30 days of the date of this Award. 5. if the Ministr/'s decision is a rafusal, they shall give full and complete written reasons for their decision. 6. The Board shall remain seized of any problems arising out of the implementation of this Award, including any claim by the Grievor that he was Improperly refused the ERP on the reconsideration. Unlesa the Grievor noUfles the Ministry in writing within 20 days of the release of theEmployer's decision that he disagrees with the decision, he shall be deemed to have agroed with their decision. DATED AT TORONTO THIS 23r4 DAY OF AUGUST, 1991 ,~._BARRY B. FISHER Vice Chairpersofl ~P. 'KL~~ D. MONTROSE -