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HomeMy WebLinkAbout1990-0249.Deschenes.91-07-31 ... ., .>~r~J,.' '!""'i'~: ~- t t ~ , ".;< I ,",1 "''''-'''';~..'_.:..:.... .~-~~',;:",~~¡.'~ . \. : ONTARJO EMPLOY!S DE LA COURONNE I ',' '<.l'~': h~ ,. " 1111 ~WY{~~~T DE l.'ONTAl'iIO " , '" ~ CpMMISSION ,D~,::. .", 4 -' REGLEMENT h ~::",'.;,:'.~ ~ ~,;'~:$;;.:.~: BOARD ; DES GRIEFS .~ .. f . I I .., / - ISO DUNDAS STREET WEST, SUITe 2100, TORONTO, ONTARIO, M5G lZ8 TEI.EPHONEITËr..ËPHONE: (416) 326-1388 ISO, RUE DUNDAS OUESr/ BUREAU 2100, TO"'ONTO (ONTARIO), M5G lZ8 FACSIMILEITÉ!.tCOPIE: (416) 326-1396 ¡ - -~ . GSB * ./ '2245/91, 2547/91, 259.5/91, 2674/91, 249/90, 2456/91, . ·,2810/91 3133/91, 861/92 I OPSEU # REV-U229, 91F89S-91F898, 92B131, 92B190-92B192, I 92B234-92B235, 92B313, 92B473, 92A318, 92B944 , I IN THE HATTER OF AN ARBITRATION ~ f ~ I Under , I ,.,. , THE CllOWN EMPLOYBBS COLLECTIVE BARGAINING ACT r : Betore ,.. ./ '1'HB GRIEVANCB SB'1"lLBJIBNT BOARD .., BE'1'WBBH , OPSEU (Deschenes') ;. Grievor - and - . The Crown in Right of ontario (Ministry of Revenue) . Employer . H BEFORE: J. Samuels Vice-Chairperson , I. Thomson Member F. Collict Member : FOR THE S. Goudge GRXEVOR Counsel Gowling, strathy & Henderson Barristers « Solicitors , POR THE L. Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 3, 1993 December 12, 1994 . ,,¢';~.:'- ~ ~ . ~'.:~ ~. 'r' ( (. '- ,-.;,.,"....-.+ .... " ~ '" , ÌI. . -II ?' ~;,~ '¡; 2 The Board was asked to reconvene after issuing its first award in this matter on July 31, 1991. The Union grieved that the Minis~ry violated Article 4.5 of the collective agreement by failing to pay relocation expenses for successful candidates chosen to fill posted vacancies. The grievance concerned a number of job postings where the area, of search was said to be limited to I candidates "within commuting distanceH of the office involved, but where employees who really lived farther afield applied, were successful, and ,~ then relocated to be near their new offices., In these circumstances, the Ministry refused to pay relocation expenses on the ground that, by. applying for, the jobs, the successful candidates had self-described themselves as already living "within commuting qistance" at the time of application. We heard evidenc'e concerning the circumstances of one of the employees involved (Mr. N. Quenneville), and ruled that he was entitled to be compensated for his relocation expenses. The critical reasoning in our earlier award went as follows: Article 4.5 of the collective agreement says that lIRelocation expenses shall be paid . in accordance with the provisions of the Employer's policyll·,- The policy 'feferred to is found in the Management Board of Cabinet Policy Manual. The provisions of the policy make it clear that the directive applies to a move which falls within the definitions established in the policy. H a move is of the 'type covered by these definitions, then the terms of ,the policy apply. There are no further conditions to be met which are outside the terms of the policy. Mr. Quenneville's move fit within the polícis definitions. In our conclusion, we ordered that Mr. Quenneville be compensated, and we went on to declare that the Ministry ought to compensate other , employees wh~ were denied reimbursement for relocation expenses, if the failure to pay relocation expenses was a violation of Article 4.5 of the , ,. . ... , - .' . t> 3 He never told management that he woµld commute to Bracebridge I from Holland- Landing, and he never planned to commute' if he got the Bracebridge job. He was successful in the job competition. He moved to Bracebridge, and the Ministry refused to pay any relocation expenses. Article 4.5 of the collective 'agreement says that "Relocation expenses shall be paid in accordance with the provisions of the Employer's policy". The policy referred to is found in the Management Board of Cabinet Policy Manual, Under "Application and Scope", the policy says, in part: · This directive applies to employees who are moving from a residence they own or from rental accommodation to either a newly purchased residence or newly rentèd accommodation. · This directive applies to relocatìons where the road distance between the new place of employment and the new residence is at least 40 kilometres less than the road distance between the new place of employment and the old residence. This is calculated as follows- old residence to new work location = A km; new residence to new work location"'" B km; if A minus B is greater than 40 km, then these provisions apply. These provisions make it clear that the directive applies to a move which falls within- the definitions established in the policy. If a move is of the type covered by these definitions,' then the' terms of the policy apply. There are no further conditions to be met which are outside the terms of the policy. Mr. Quenneville's move fit within the policy's definitions. And then the policy sets out "Mandatory Requirements" (of which it ~ says, "Ministries must adhere to the following specific requirements"). In other words, there is no discretion concerning the application of the , . .. . - . . 4 , "Mandatory Requirements". Under "Mandatory Requirements", "Ministry- requested relocations" are defined, and the definition includes the following sentence: For the purposes of this directive, a competition is also considered to be a ministry-requested relocation. In short, there is no discretion concerning the nature of a relocation by a successful candidate in a competition-it is a "Ministry-requested relocation" . Mr. Quenneville's move to Bracebridge was a "Ministry- requested relocation" by virtue of the definition in the Employer's own policy. And this means that relocation expenses must be paid according to the rules set out in the policy for reimbursement of such relocations. The Ministry's response to this is that it has the right to narrow its area of search to persons "within commuting distance" of the position posted. And we agree. If the Ministry wants to avoid paying relocation expenses, then it can narrow its search to persons who will not need to relocate (see Carson/French, 582/89 (Kirkwood)). The Ministry then goes on to argue that, if an employee applies for a position for which the area of search is limited, the employee is necessarily within the limitation. Mr. Quenneville must be considered to have lived at the time of his application "within commuting distance of the Bracebridge Regional Assessment Office". But we disagree with this proposition. It would have been pretty obvious to the reasonable person that Mr. Quenneville would relocate if he got the Bracebridge job. Commuting from Holland Landing to Bracebridge was not a reasonable proposition. Indeed, at his interview, the Employer's representatives discussed with him the cost of housing in the Bracebridge area, knowing full well that in all likelihood Mr. Quenneville would move to the area if he got the job. ¡ .. ',- - " . , -;. . - . ':: 5 , But, since the areâ of search was limited to those within commuting distance of the Bracebridge office, Mr. Quenneville was told that he would not get any relocation expenses. However, the Ministry cannot do this. Article 4,5 of the collective agreement, and the policy to which it refers, say that he is entitled to relocation expenses and the Ministry cannot deny an employee his rights under the collective agreement. The Board, in Carson/French contemplated this very situation. Having decided that the Ministry had the right to limit its area of search and thereby avoid relocation expenses, the Board went on to say that "If ~ person is chosen and is eligible for relocation expenses pursuant to article 4.5 of the collective agreement, that applicant will receive the relocation expenses" (at the bottom of page 11). The Ministry could have refused to consider Mr. Quenneville's application, because he was not really within commuting distance of Bracebridge in any reasonable sense, and therefore he did not fit within the area of search that the Ministry had established for the competition. But, having allowed him into the competition and having awarded him the position, the Ministry cannot deny him his rights under the collective . agreement. The Ministry did not order Mr. Quenneville not to relocate (and nor 'could it have done so, if relocation was reasonable in all the circumstances). Rather, the Ministry told him that, if he did relocate, he would not receive any reimbursement for his relocation expenses. Indeed, in its letter to Mr. Quenneville, infonning him of his success in the competition, the Ministry wrote: Your acceptance of this position denotes acceptance of the tenns and conditions of the competition wherein the Ministry will not be responsible for costs should you decide to relocate. . ... ~ - " J 6 But the Ministry could not do this! The Ministry must abide by the collective agreement. Article 4.5 of the collective agreement says that relocation expenses shall be paid in accordance with the Employer's policy, and the policy says that Mr. Quenneville is entitled to relocation expenses in the circumstances he found himself. The Ministry cannot write a separate contract for Mr. Quenneville, and Mr. Quenneville cannot accept terms and conditions which differ from his rights under the collective agreement. It is not possible for the Ministry to set "terms and conditions of the competition" which are contrary to the Ministry's obligations under the collective agreement. In conclusion, we find that that Ministry violated Article 4.5 of the collective agreement when it refused to reimburse Mr. Quenneville for his relocation expenses. We order that the Ministry should reimburse Mr. Quenneville as is required pursuant to the Employer's policy, with interest at 10% per annum on the amount which ought to have been paid, from the date on which it ought to have been paid to the date on which it is paid. And we . will remain seized to determine any issue between the parties concerning the compensation owing to Mr. Quenneville. Furthermore, we declare that the Ministry ought to compensate other employees who were denied reimbursement for relocation expenses, if the failure to pay relocation expenses ,was a violation of Article 4.5 of the collective agreement, and if the employees fit within one of the following categories: . an employee who was denied reimbursement for relocation expenses thirty days before the Union's grievance was filed on '~ February 2, 1990, or thereafter (because Article 27.12.1 of the collective agreement provides that a Union grievance shall be ~ 4, > "'!':. ~ ~ . ,- - ," .. 7 filed within 30 days following the occurrence or origination ?f the circumstances giving rise to the grievance); . an employee who filed an individual grievance, complaining of the Ministry's failure to pay relocation expenses, where the individual grievance has not yet been finally resolved, awaiting the determination of this Union grievance; or . an employee who complained about the Ministry's failure to pay relocation expenses, where the complaint was conveyed to management by the employee or by the Union, and where it was understood that· this complaint, would be determined by the outcome of the Union's grievance. , .' .. - . , . t ; 8 These employees should be compensated in the same manner as Mr. Quenneville. And we will reserve our jurisdiction to determine any issues arising between the parties concerning the identification of the employees involved and the compensation due to any individual. Done at London, Ontario, this 31st day of July , 1991. OA ~amUelS, Vice-Chairperson , ç¡ 9~J F. Colliet, Member