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HomeMy WebLinkAbout1992-1078.Lynch-Burrus.95-02-08 ~---~ -- ... ---.:... ~...- EMPLOYES DE LA COURONNE ONTARIO CROWN EMPLOYEES DEL'ONTARIO 1.'1 1111 GRIEVANCe COMMISSION DE '- , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. MSG lZ8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 I GSB# 1078/92 OPSEU# 92D257 IN THE MATTER OF AN ARBITRATION U~der THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Lynch-Burrus) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social services) Employer I BEFORE N. Oissanayake Vice-Chairperson T. Browes-Bugden Member D. Clark Member FOR THE A Ryder GRIEVOR Counsel Ryder, Whitaker, Wright Barristers & Solicitors FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat I HEARING February 17, 1994 i ~:---_- . I - ~ ~,.. 2 DECISION This is a grievance filed by Ms. Diane Lynch-Burrus, \ wherein she alleges that the employer has violated article 3.15 of the collective agreement which reads' CONVERSION OF .UNCLASSIFIED POSITIONS TO CLASSIFIED POSITIONS Effective April 1, 1991, where the same work has been per~ormed by an employee in the Unclassified Service for a period of at least two consecutive years, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work, and shall post a vacancy in accordance with Article 4 (Posting and Filling of Vacancies of New Positions). The grievor was employed in the unclassified sector of the public service starting April 28, 1989, as a Pharmacy Technician at the Pharmacy Dept. of the Huronia Regional Centre in Orillia, Ontario Her initial contract was for 9 months Subsequently she received seven successive contracts of varying duration, which continued her employment uninterrupted until the expiry of the last contract on May 30, 1992, at which time her employment was not renewed Her grievance is dated July 10, 1992 InOPSEU CUNION GRIEVANCE) AND KCS, 803/91 (Dissanayake) the Board observed at p 4: For article 3 15 1 to have application, the following conditions must be met. (a) The same work must have been perform.ed. I. -,<f ~ 3 I I (b) That work must have been performed by "an employee in the unclassified service" for a period I of at least two consecutive years. I (c) The minist~y must have determined that there is a continuing need for that wo~k to be performed on a full time basis. In the present case there is no issue relating to requirement (a). The employer also concedes that the two year requirement in (b) above was satisfied by April 28, 1991. The dispute is as to whether the condition in (c) has been satisfied. J In 1989, the grievor was employed in the private sector, when she saw an advertisement for a contract position at the Huronia Regional Centre. She called Mr. Wayne Cox, who at the time was employed in the Pharmacy Dept. as Staff Pharmacist and was known to her. He informed he:r that the j'ob was related to a new system being implemented for the dispensing of medication to residents known as the "Blister-Pak System" and a new computer system. Once employed, the grievor was heavily involved in the conversion from the old to the new dispensing systems. At the time, the staff of the Pharmacy Dept. consisted of a Chief Pharmacist, the Staff Pharmacist Mr. Cox, 3 classified pharmacy technicians, one full-time unclassified pharmacy technician (the grievor) and another I employee on a modified work programme There is no dispute that following the completion of the conversion to the new - ;;. ; .... 4 i system, the grievor continued to perform t~e same work as the other classified technicians. By April 28, 1991, when the grievor completed two years as a contract employee, Mr. Cox was the Chief Pharmacist. The grieyor testified that around that time she asked Mr. Cox whether article 3.15 applied to her. According to her, from his response, she understood him to assure her that her position was safe, that she should not worry and that she should not "rock the boat". She testified that h'e mentioned that an operational review was being done to "justify" her position. Under cross-examination, the grievor testified that at this time she also contacted the union. She did not discuss r grieving, but inquired whether article 3.15 had application to her. From the advice she received from the union, she understood that the result of article 3.15 would be that she would become a classified employee. The union also advised her that she should not worry, that the issue of classifying her position was being looked into, and that if there was a problem the union would be contacting her. The grievor , testified, however, that subsequently Mr Cox informed her that article 3.15 only results in the posting of a position and that she would be a "likely candidate" if such a posting was made. She conceded that while she understood that she I - ~. r... '\ 5 would have a very good chance of success in a competition, she knew that there was no guarantee Counsel for the union submits that the evidence establishes that after the 2 year requirement had been met; the employer had determined that there was a continuing need for that work to be performed. He points to the fact that when the 9rievor's sixth contract expired on May, 17, 1991, the employer granted her a further contract from May 18, 1991 to March 31, 1992 and that on the expiry of that contract, her contract was renewed for a further 2 months, from April 1, 1992 to May 30, 1992. Counsel argues that by renewing her contract in this manner for a period of over a year beyond the 2 year period, the employer must be taken to have decided that as of May 1991 there was a continuing .need for the work to be performed. Union counsel submits that the employer's obligation under article 3.15 to post a vacancy arose in May of 1991, when the grievor's existing contract expired. He submi,ts that had that been done, the grievor would have applied. He I i submits that it is more than likely that she would have won the competition because there was no evidence that there were any concerns relating to the grievor's work performance. Counsel contends that the grievor should not be faulted for not grieving in May 1991, because at the time Mr. Cox assured __________ __ _u _ ,~ ., ,6 her that her position was safe. By giving that assurance she was induced not to grieve. In these circumstances, counsel submits that by way of remedy, the Board should deem that the classified position was posted in May 1991 and won by the grievor, and make a declaration to that effect. In the alternative, counsel submits that the Board should direct that the employer post a vacancy now and pend t the gr ievor to compete and further direct that she be compensated for lost wages if she is successful in the competition. In the Union Grievance (suDra) the Board had occasion to interpret th~ phrase "Where the Ministry has determined that there is a continuing need for the work to be perfolmled", in article 3.15. The majority of the Board held that for that condition to be met, the determining factor was not the employer's decision to not post a vacancy. In other words, the fact that an employer decides not to apply article 3 . 15 in a particular situation, is not necessarily conclusive proof that the employer had not determined that there was a continuing need. This condition rather must ,be assessed on the basis of the objectiv,e facts as to what the employer did ~ with the work in question. We reiterate that reasoning. To do otherwise would be to allow the employer to circumvent ( article 3.15 by merely avoiding making a formal decision or by statinq that it had not decided that there was a continuing need for the work, when the objective facts point clearly to " ~ J;'J 7 i the contrary, that the employer continued to have that work performed in the regular course. That would be tantamount to allowing the employer to avoid its obligations by simply deciding that article 3.15 does not apply to a particular situation. The issue in this case is whether from the objective facts, it could be reasonably concluded that the employer had determined that there was a continuing need for the grievor's work to be performed. It must be emphasized that under article 3.15, it is the employer that must have decided that there 'was a continuing need. What the Board held in the Union Grievance was that, this was a question of fact to be determined from the objective facts. In that case, the evidence was that the .unclassif ied employees continued to perform the same work as the classif.ied employees in the regular course as they had done all along. The employer did not suggest that the work continued for some other reason than because it was work that was required on a continuing basis for the operation of the institution. In those circumstanges, the majority of the Board held that the employer was not in a position to deny that it had determined that there was a continuing need. In other words, the Board inferred from the facts that the employer had made such a decision '" ---- - -' ~J: '--- - ~. 8 Having reviewed the evidence in the present case, we find that a similar conclusion cannot reasonablYl::>e made here The Huronia Regional Centre is a residential facility for the developmentally handicapped The centre is operated through an Executive Committee consisting of the Administrator and the directors of the five departments The evidence is that from at least 5 years prior to the date of this grievance, the centre was operating under a "downsizing" policy. The main feature of this policy was the zero admissions policy, i.e. f the centre was not admitting any new residents Hand in hand with the downsizing policy of the centre, the Ministry had implemented a multi-year plan under which five large facilities, including the Huronia Regional Centre, were required to downsize to specifi~d levels. Mr. Bob cerniuk, the Director of the Residence and Health Services bept , testified that in 1987 the centre firmly committed itself to giving up $ 5 1 million from its budget and to reduce its resident population by approximately 210 residents The ultimate goal was to c~ose down the centre by the year 2015. This policy was in accordance with the treatment philosophy that it was more beneficial for the mentally handicapped to reside in apartments and group homes in a community setting, rather than in an institutional setting. The griev~r was first hired on contract in April 1989 to assist in the tran'si tion to the new dispensing system Once ,~. ~J 9 that task was completed she did the same duties as the - classified technicians. On November 19, 1990, the Manager of the Pharmacy Dept. made a formal request to the Director that \ a fourth classified Pharmacy Technician position be added to the complement. In support of his request, he submitted, inter alia, that "Given the current level of activity and output, it would quite-simply be impossible to operate the new system with less staff, without noticeable cutbacks in services". The request was for the conversion of the grievor's contract position into a classified position. This request went before the Executive Committee, which refused the request, but approved a short term renewal of the grievor's -contract pending an operational review. That resulted' in the renewal of the grievor's contract to March 31, 1991- At the end of that contract, Mr. Cerniuk, presented the request for a classified position again .to the Executive Committee. The result was the same. The grievor's contract \ was renewed for a further 1-1/2 months to May 17, 1991. During this period, a new Administrator was appo~nted for the centre. ,Mr. Cerniuk met with the Executi ve Committee and thoroughly reviewed all of the staffing issues in the Pharmacy Dept. The committee only approved a renewal of the grievor's contract for a further year, to permit the conclusion of the operational review. ...:j Ill- 10 Mr. Cerniuk testified that once the operational review I I got underway a concern arose as to why there was ~ request for an additional complement position, when the centre already had one more position than a similar facility which served 100 more residents. Questions were also raised as to whether all of the services being provided were in accordance wi th the res idents needs. It was decided that a resident survey should be 'conducted to ascertain what services were required. ) The new administrator implemented a policy that if a change in staffing complement was requested, a "business case" must be forwarded justifying the request. Towards the end Qf the grievor' s last extension, Mr. Cerniuk submitted a business ( case dated April 6, 1992 to the new administrato~, requesting inter alia, that the "process be initiated to peZJl1anently fill the contract Pharmacy Tech. 1 position as a full-time classified position". I. loIr . Cerniuk testified that given the policy of downsizing, the committee would not approve .adding a fourth technician position; and that the committee was of the opinion that the existing complement was adequate to carry out the core functions required. By the time the grievor's last contract expired on May 30, 1992 the operational review was complete The Executive Committee would not approve a renewal of her contract beyond the period of the operational review. ---- ""'1 ~ " ~ ~' I 11 Since the cre'ation of a classified position was also not i approved, thegrievor'~ employment with the centre came to an I I end on May 30, 1992. - Based on this evidence, the Board cannot reasonably conclude that as of May 1991, the employer had determined that i there was a continuing need for the performance of the work i) the grievor was performing. The evidence indicates that at I that time her contract 'was extended specifically fOl;" the purpose of doing a review to' find out whether there was such a continuing need. Her contract was extended until the review was complete. At the. end of the review, by deciding that the employer could manage without the grievor's services, in the capacity of an u;nclassified or classified employee, the employer in effect determined that there was no continued need for her work to be performed beyond that date. Unlike in the Union Grievance (supra), here there is specific evidenc~ that the grievor's employment was continued beyond the 2 years for a specific reason, Le. to permit the employer to make a review and assessment as to whether that work was required to be continued. It had clearly not determined that there was such need. At the end of the review the decision was that there was no need for the continued performance of the work in question. It is not for this Board to judge whether the employer's decision was a wise one. ~ 12 Whether the decision permitted the provision of an efficient service to the residents is not for this Board to decide. What is relevant is that that was the decision of the employer. In our view, in light of the foregoing evidence as to the specific purpose of extending the grievor's contract beyond May 1991, the Board cannot infer from such extension that the employer had determined that there was a continuing need for ( the performance of the work in question Union counsel submits that the reason for the extension of the grievor's contract beyond 2 years is irrelevant. The fact that the grievor worked beyond 2 years must necessarily mean that for whatever reason the employer decided that the work needed to be continued for that additional period. We cannot agree. If that reasoning is accepted, the result would be to read the requirement that "the Ministry has determined that there is a continuing need for that work to be performed ..." out of article 3 15. Then the posting requirement wi~l) be triggered in all cases where the work in question is performed by an unclassified employee beyond 2 years, which is the first condition in article 3.15. Requirement (c) set out supra at p 3, would be ignored. Union counsel further argued that if the Board allows the employer to carryon performing regular work through the use j ,"" ~ (i... 13 of unclassified employees beyond two years under any circumstances, without triggering article 3. 15, that would permit the employer to circumvent the conversion requirement by commencing a review at the end of two years and carrying on s~ch review indefinitely. That would render the two year limit in article 3 15 meaningless. While we understand counsel's concern, we are satisfied that in those circumstances, if the Board finds that the review was not a bona fide exercise but merely a pretext to get around the collective agreement, the Board would have the power to deal with that. In the present case there is no suggestion that the review was anything but a legitimate business undertaking I resulting from a ministry wide operational review, which had been continuing for several years In our view, where the work in question continues to be performed by unclassified employees it is generally reasonable to presume that that work was continuing in that manner ( because the employer had determined that there was a need for the continued performance of that work. However, that would only be a rebuttable presumption. Once it is established that the work continued, the onus shifts to the employer to explain why that was happening, if it had not decided that there was a continuing needed for the work to be performed An explanation which is merely a scheme to circumvent the "- collective agreement obviously will not suffice to rebut the / ,.. 14 presumption. In the case at hand the employer has met that onus by leading specific evidence to explain_ legitimate reasons for extending the grievor's qontract beyond the two year period. For all of the above reasons, it is our finding that the \ qase at hand does not meet the requirement in art~cle 3.15 that the employer has determined that there was a continuing ne~d for the work in question to be performed. Accordingly this grievance is hereby dismissed. I Dated this 8th day of February 1995 at Hamilton, Ontario. .tJ4 ~ - .' ."....._~~_..-/'. . ~ N Dl.ssanayake Vice-Chairperson Addendum Attached T Browes-Bugden Member ~~~ -n Clark Member f' ;lI,o , I ........ ~/\ I . GSB #1078/92 ONTARIO PUBLIC SERVICE EMPLOYEES UNION ( LYNCH-BURRUS ) AND THE CROWN RIGHT OF ONTARIO (MINISTRY OF COMMUNITY AND SOCIAL SERVICES) ) ADDENDUM I ---------------------------------------------~------------------- Based on the unique facts of this case, I agree with the reasoning as set out in the award However, I have serious concerns that the employer in this case took an extended length of time, for the purposes of reviewing the operations and determining the continuing need for the work per formed by the grievor In my opinion, the review should have been completed ~n a more expeditious manner I Furthermore, the interpretatio~ of article 3 l5 1 must be in such a way as to not allow the employer to routinely carryon work of unclassified employees for periods of time beyond the two year time limit as set out in the Collective Agreement. '~ D'! ~S./ - ----------------- - T. Browes-Bugden Union Nominee I) \ ( ~