HomeMy WebLinkAbout1995-1963WEEMEN99_07_07
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
t80 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G tZ8 TELEPHONEfTELEPHONE (416) 326-1388
180,RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G tZ8 FACSIMILEfTELECOPIE (416) 326-1396
GSB # 1963/95
OPSEU # 95G309
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING L\CT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano Public Service Emplovees Umon
(Lill Weemen)
Grievor
- and -
The Crown In Right of Ontano
(Ontano Realty CorporatiOn, Management Board Secretanat)
Employer
BEFORE Helen S Finley V Ice-Chair
FOR THE Cameron Walker
GRIEVOR Gnevance Officer
Ontano PubliC Service Employees Umon
FOR THE Leonard Marvv
EMPLOYER Counsel Legal Services Branch
Mangement Board Secretanat
HEARINGS December 8 1997
February 3, 1999
GSB # 1963/95
DECISION
On September 25 1995, LIh Weemen filed the followmg gnevance agamst her Employer,
Ontano Realty CorporatlOn (Management Board Secretariat) She set out the gnevance as
follows
wrongful layoff according to Article 27 7 and mischievous behavIOur or Incompetency of people
responsible for placing surplus staff, when Jean GuglIetti requested to reassign LilI Weemen to
one of the two posItIons available in St. Cathannes, not working nights registering prostitutes in
Parkdale Probation Office
She requested
to be placed In a non-stressful normal bilIngual day Job in St. Cathannes
because I'm moving to St. Catharines on October 31/95
Cameron Walker, for the Umon, explaIned that the Umon takes the posltlOn that the ongInal
gnevance was framed by the employee Without umon aSSIstance and that It would have framed
the gnevance dIfferently and under dIfferent artIcles of the CollectIve Agreement. He also stated
that the Umon dId not Intend to dIspute the Employer's reaSSIgnment offer to Ms Weemen as
beIng In breach of ArtIcle 24, nor was the Umon allegmg that the aSSIgnment was made m bad
faith.
Ms Weemen was released from employment under the Public Service Act, R.S 0 , 1990, s. 22
(4)
A deputy mimster may release from employment in accordance With the regulatIOns any
public servant where he or she conSiders it necessary by reason of shortage of work or
funds or the abolition of a position or other material change In orgamzatlon.
The artIcles of the CollectIve Agreement relevant to Ms. Weemen's gnevance are the follOWIng'
(The green CollectIve Agreement (January 1, 1992 to December 31, 1993) was In force at the
time of Ms. Weemen s layoff and gnevance )
ARTICLE 24 - JOB SECURITY
241 Where a lay-off may occur by reason of shortage of work or funds or
the abolItion of a posItion or other material change in organization, the
IdentificatIOn of a surplus employee In an adrmmstrative dlstnct or umt,
institutIOn or other such work area and the subsequent assignment,
dIsplacement or lay-off shall be in accordance with senionty subject to
the conditIons set out in thIs Article.
NOTICE
24.2 1 An employee shall receIve six (6) months notice of lay-off or pay In
lIeu thereof.
24.2.2 The notice period will begIn when the employee receIves official
written notice. Copies of all such notices shall be provided to the
Management Board Secretanat and to the UnIOn.
'SEPARATION ALLOWANCE
24.3
RETRAINING
244
SALARY PARAMETERS
24.5
REDEPLOYMENT
2461 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) kilo metre radius of his
headquarters proVIded he is qualIfied to perform the work and the vacancy IS
- in the same class or posItIon as the employee s class
or pOSItion;
in a class or position in which the employee has served during
his current term of continuous servIce; or
another vacancy
246.2 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. Relocation
expenses shall be paid in accordance with the proVIsions of the
Employer's policy
24.6.3 Where an employee has not been assigned in accordance with sub-sections
24.6.1 or 24.6.2, he shall be assigned on the basis of his seniority to a
vacancy in another ministry within a forty (40) kilo metre radius of his
headquarters provided he is qualified to perform the work and the vacancy
is:
- in the same class or position as the employee's
class or position, [Emphasis added]*
2
- in a class or position in which the employee has
served durmg his current tenn of continuous servIce'
or
another vacancy
2464 WIth mutual consent, a surplus employee who has not been assIgned in
accordance WIth sub-sectIons 24 6 1,24 6.2, or 24 6.3 shall be assigned
to a vacancy in another mimstry beyond a forty (40) kilometre radIUs of
his headquarters provided he IS qualified to perfonn the work.
Relocation expenses shall be paid in accordance with the provisIOns of
the Employer's polIcy
247 Where an employee IS assigned to a vacancy In accordance
WIth section 24 6, SectIOn 5 4 of ArtIcle 5 (Pay
AdmInIstratIOn) shall apply
2481 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-sections 24 6 1 or 24.6.3 shall be laid off and the
prOVISions of SectIOns 2248.2,24.9 and 24 13 shall not apply
248.2 Where an employee has not been assigned to a vacancy ill accordance
with sub-sectIOns 24 6 1 246.2, 24 6.3, or 24 6 4, he shall be subject
to lay-off in accordance WIth the folloWIng applicable sections.
DISPLACEMENT
2491
RECALL
2416 I
* Ms. Weemen was assIgned under thIs sectIOn, there bemg no opportumtIes for her to be
assIgned to a Job WIth Management Board Secretariat eIther wIthm or WIthout the 40 kIlometre
radIUs of her Toronto headquarters
ARTICLE A - NO DISCRIMINATION/EMPLOYMENT EQUITY
A.l 1 There shall be no discnmmatlOn practIsed by reason of race, ancestry place of
origin, colour ethmc ongin, citizenship, creed, sex, sexual onentatlOn, age,
mantal status, family status, or handicap, as defined m section 10 (I) of the
Ontario Human Rights Code (OHRC).
3
ARTICLE 18 - HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS
18 I The Employer shall continue to make reasonable provisions for the safety and
health of Its employees dunng the hours of their employment. It is agreed that
both the Employer and the Union shall co-operate to the fullest extent possible
m the preventIon of accidents and m the reasonable promotIon of safety and
health of all employees.
The Employer has placed a motion for non-smt before the Board askmg that the gnevance be
dIsmIssed. The Employer alleges that the Umon has faIled to prOVIde suffiCIent partIculars
respectmg the substance of the gnevance, and, m the alternatIve, has faIled to establ1sh any
breach ofthe Collective Agreement. The Umon opposes tills motion.
Leonard Marvy, Counsel for the Employer, submItted that It IS appropnate for the Board m ItS
conSIderatIOn of the non-smt motion to follow the procedure set out m OPSEU (Faler) and The
Crown in Right of Ontario (Ministry of Correctional Services, GSB # 218/89 (FIsher) The
decision conSIders the callmg of eVIdence m the case of a motion for non-smt. After a reVIew of
the JurIsprudence, V Ice-Chairperson FIsher concluded at page 7 of hIS deCISIOn that
It seems inappropriate for a Board such as the Gnevance Settlement Board, which is constantly
detenmnmg disputes between the same parties, to express full reasons as to why one party has failed to
prove a prima faCie case. ThiS would be the equivalent to an 'arbitral time-out" m which the opposing
party has the opportunity to find out what the Board IS thinking, and then plan ItS strategy for the rest ofthe
case. In a situation like thiS, one would expect a motIon for non-sUIt in every case, as It would provide a
useful advantage m every case to the movmg party, whether or not they had any chance ofwmnmg a
motIon of that sort.
However, these fears can be elimmated if the Board gives no oral or written reasons [emphasis
m the ongmal] m the event the motIOn IS dismissed. Of course, If the motIon is upheld, full and proper
reasons would be provided, as then the motion would end the case. A mere mdlcation by the Board that
the motion was dismissed would not give a tactical advantage to either party This was the procedure
adopted by Chairperson Ratushny (who IS also a Vice-Charrperson of the Gnevance Settlement Board) m
Ontario Human Rights Commission and Abany v North York Branson Hospital and Hill 9 CHRR
D 4975
Mr Walker, for the Umon, submItted that the Board does have authonty to hear the matter, and
any Issue as to when the Employer was put on notIce as to what concerns could be dealt WIth m
deCISIon, but dId not dIspute the appropnateness of the Board's followmg the procedure set out m
Faler
4
Therefore, In the case at hand, If the Board concludes that the Umon has satIsfied the Board that
It does have a prima facie case, then reasons WIll not be gIVen and the case wIll proceed, If,
however, It IS determIned that the Umon has failed to satIsfy the Board that It has a prima facie
case, reasons WIll be gIven, and the case WIll proceed no further;
At the tIme her employment was termInated, Ms. Weemen had been an employee of the OntarIo
Realty CorporatIOn from September 25, 1989, located first In the Ferguson Block and later at
College Park. She served In the capacIty of a bIlIngual secretary and was classIfied as an OAG 8
On July 11,1995, she and a number of her co-workers were declared surplus pursuant to the
Public Service Act, SectIOn 22 (4) and the CollectIve Agreement, ArtIcle 24 The
documentatIOn whIch was submItted and not contested, that IS, the correspondence between Ms.
Weemen and the Employer, and between Jean GughettI, the PresIdent of Local 520, and Ms
Weemen's Employer, set out the steps In the layoff and redeployment processes as they apphed
to Ms Weemen. For that reason, they are set out below
Ms Weemen s notIce oflayoffcame In the form ofa "PERSONAL/CONFIDENTIAL" letter of
July 11,1995 from the ExecutIve Vice-PreSIdent of the Property Development DIVISIOn of the
Ontano Realty CorporatIOn, Rob Lowry It read as follows
Ms L. Weemen
151 St. George Street
#502
Toronto Ontano
M5R 2L9
Dear Ms Weemen.
The government is implementing a series of strong measures to control the size of the publIc debt.
The Ontano Realty Corporation IS revlewmg its areas of business to determme those that might be
downsized or elimmated to meet the government's savings target planned for this fiscal year
The Real Estate Branch IS one of several areas withm the Ontario Realty CorporatIOn which will
be impacted as a result of these reviews. The resulting change in business directIOn has caused us
to declare your position of Secretary Office Ammmstration Group 8, surplus to the government's
needs. This is not a reflection on your performance or that of your colleagues.
You have a number of redeployment/surplus options and entitlements which will be discussed
5
with you by your Manager and Redeployment Advisor Management wIll asslst you m your search for
another sUItable position in the Ontario Public Service. You are also entitled to up to six months of
employment related trainmg to Improve your chances for getting another pOSitIOn m the OPS or elsewhere.
If you are unable to find another pOSitIOn by January 10 1996, you will be laid off on that date.
Your pOSItion has been declared surplus to requirements of the organization m accordance With
Section 22 (4) of the PublIc Service Act. Job security entitlements wlll be provided in accordance
WIth Article 24 of the Collective Agreement. In addItion I urge you to contact Diane Nadunak,
Redeployment AdvIsor at 327-3871, for speCific details on your entitlements and options. Diane
IS also aVailable to assist you with preparing your employee portfolIO resume, interView trammg
and other aspects related to finding a new position for you.
Please accept my thanks for your hard work and dedication, and my best Wishes for a successful
job search in the months ahead. If I, or any other member of management can be of assistance to
you, please do not hesitate to call. We will do all we can to help you.
On July 27,1995, Ms Weemen was sent the followmg letter by Judy Tomann, Manager of
Corporate Placement SerVIces m the Staffing & Development ServIces Branch of Management
Board Secretariat.
July 27 1995
Ms. LilI Weemen
565 Sherbourne Street - #414
Toronto, Ontano
M4X I W7
Dear Ms. Weemen.
Assignment: SGCS 1114/95
Probation & Parole Secretary - 080AD
Ministry of Solicitor GeneraVCorrectional Services
27 Roncesvalles Avenue, Suite 206
Toronto, Ontario
I am pleased to mform you that m accordance with the Memorandum of Agreement on Direct
Assignment, you are assigned to the above-noted pOSitIOn pending the successful completion of
the Canadian PolIce Information Computer (CPIC) and Ontario ProvinCial Police (OPP) secunty
mvestigatlOn clearances. Please complete and return the attached 'Consent to Security Clearance
Investigation" to Kim O'Connell, Human Resources Consultant. Kim can be reached by
telephone at (416) 314-0520 and by fax at (416) 314-0527 The effective date of thiS assignment
will be confirmed when the results are obtamed.
Since the assignment constitutes a lateral transfer, there will be no change in your salary or your
classIfication.
Please note that the terms of the Sectoral Framework of the Social Contract dated August I, 1993
suspended salary progression for a three-year period. For further clanficatIon, please contact your
Redeployment Advisor, Diane Naduriak, whose telephone number is (416) 327-3871
6
If you refuse thIS assIgnment, you will be laId off at the end of the applIcable notIce period
wIthout benefit of further job security entItlements under Article 24 of the CollectIve Agreement.
Please indicate your acceptance or refusal of this aSSIgnment by signing your name on the
appropnate lme below and return one copy of thIs letter to Corporate Placement Unit,
Management Board Secretanat withm 5 workmgs days from receIpt of thIs letter
The Ontario Public Service is committed to providing redeployment in accordance with the
Ontario Human Rh!hts Code. Employees are responsible for identifying their
accommodation needs to their new employer at the point of accepting a job offer If you
require employment accommodation in connection with the job offered in this letter, please
contact your new supervisor, Mr Hugh Osler at (416) 314-5277 [Emphasis added]
On behalf of the Ontario Realty Corporation, please accept our thanks for your servIces to date
and best wishes in your new pOSItion.
Yours truly,
SIgned "B Davis for"
Judy Tomann,
Manager, Corporate Placement Services
cc. Ministry of SolICItor General & CorrectIOnal Services
Doreen Fotia - Redeployment Co-ordinator
Kun O'Connell HR Consultant
Ontario Realty CorporatIOn
Janet MeIer - AlRedeployment Co-ordinator
Diane Nadunak Redeployment AdvIsor
OPSEU Munel Ethier
Signed
I accept this assignment I refuse this assignment
Date:
On August 3, 1995 at 1 32 p.m., Ms Weemen made certam alteratIOns to the above letter and
SIgned back her "acceptance" She noted that she would be "movmg to Clark St, St Cathannes",
beSIde the address portIOn of the letter and deleted the "ASSIgnment" portIon, replacmg It WIth
the followmg
MT/BU/95-l35
Secretary DeSIgn OA 8
Structural office
Transportation Engmeenng & Standards
St Catharmes.
7
The altered letter was noted as receIved at the Human Resources Branch of Management Board
Secretanat on August 3, 1995 at 2 40 p.m.
On that same day Ms Weemen sent the foIlowmg memorandum.
Memorandum To Judy Tomasin (sic) (Corporate Placement)
Diane Naduriak & Huguette Chenard (Human Res)
Gord Laschmger & J Flanagan (aRC)
Kim O'Connell (Solicitor General)
Re' DIrect assignment
I spoke to Diane Nadunak and mentIOned in my portfolio that I wanted aJob m St. Cathannes
because I have deCIded to go back to lIve in St. Catharmes, instead I was supposedly matched to a
Job that IS not a 9'00 a.m. to 5'00 p.m. job whereas lots of secretarial jobs sunilar to what I am
currently occupying are sitting vacant at M.T 0 waitmg for clients like me to hop on them I
don't need any training for the world s oldest profession in Parkdale.
In the mean time I am volunteering to replace any of the two contract workers at the Green work
place for free (Ontario Realty CorporatIOn, not solIcitor General) for the next six months, or may
be volunteer to help out as matchmaker to more closely match people in Judy Tomasin s office,
smce you people are so busy
"S igned"
Lili Weemen
Surplus Officer
Encls.
cc. Vince Catalfo & Doreen Rupnaram (aRC)
Munel EthIer c/o Barry Doyle (OPSEU If still m eXIstence)
On the next day, August 4, 1995, Jean GughettI sent the followmg letter to Ms Judy Tomann.
Please be advised that LilI Weemen wishes to be aSSIgned in accordance WIth
article 24 6 4 of the collective agreement. The position in question is Secretary
DeSign OAG 8 as per competItion #MT/BU95-135 closmg date August 18,
1995, location, Downsview WIth future relocation to St. Catharines, August
1995
COpleS were sent to the followmg persons Michelle Noble, Tim Casey, Rob Lowry, Gord
Laschmger, JIm Flanagan, LIli Weemen, Barry Doyle, Jim Glenny and Wayne Campbell.
8
Ms Weemen then began a penod of sIck leave, WhICh commenced on August 11,1995 and
lasted untIl September 20, 1995 At the outset of her leave, she produced the folloWIng medIcal
note from D.H WatkIns, M.D , a phYSICIan at the College Street PhysIcal MedicIne & Sports
Chmc, dated August 15, 1995
TO WHOM IT MAY CONCERN
RE Ms. Lili WEEMEN
565 Sherbourne Street Apt 414
ThIs IS to confirm that I examined thIs patient today and have recommended that
she attend for physIotherapy treatment for her recurrent low back pain problem.
As a result she wJ!1 be off work starting August 11 1995 until September 20
1995
Ms. T omann rephed on August 11, 1995, to Ms. Weemen S returned "acceptance" She sent It to
the same address as her letter of July 27, 1995 that IS the Sherbourne Street address.
Dear Ms. Weemen.
Assignment: SGCS 1114/95
Probation & Parole Secretary - 080AD
Ministry of Solicitor General/Correctional Services
27 Roncesvalles Avenue, Suite 206
Toronto, Ontario
I am m receIpt of the altered assIgnment letter dated July 27 1995 You wJ!1 not be offered, MT
8U/95/135, the position you mentioned on the altered letter for the following reasons.
The Employer's first obligation and your primary entItlements under the Collective Agreement,
SectIOn 246, are to a pOSItIOn withm 40 Ian of your headquarters. The offer of the above vacancy
satisfies both the Employer's obhgation and your entitlements. It will not be rescinded and you
must still respond to the offer of sacs 1114/95
You have several options depending on your response. If you accept this assignment, you will
continue employment wIth the Ontano Pubhc ServIce and be ehgible to apply to restrIcted
competitions and re-register for Job Trading.
If you refuse this assignment or do not respond within 48 hours, you will be laid off at the
end of the applicable surplus notice period without benefit of further job security
entitlements. Failure to respond will be considered a refusal. [Emphasis added]
Please indicate your acceptance or refusal of the attached assignment within 48 hours of receipt of
this letter
9
On August 16,1995, Ms. Tomann replIed to Ms. GuglIettI s letter of August 4,1995
Dear Ms. Gughetti.
Further to your letter dated August 4 1995 and our telephone conversation August 9 1995 I have
responded to Lili Weemen mdicating why we are not considering her for MT BU/951135
The Employer's first obligation and an employee's primary entitlements under the Collective
Agreement, Section 24 6 are to a posItion within 40 kIn of hislher headquarters. The offer of
SGCS 1114/95 satisfies both the Employer's obligation and Ms Weemen s entitlements. It Will
not be rescmded and Ms Weemen must still respond to the offer
Ms Weemen has several options depending on her response. If she accepts thiS assignment, she
will continue employment With the Ontano Public SerYlce and be eligible to apply to restricted
competitIOns and re-register for Job Tradmg.
If she refuses this assignment or does not respond within 48 hours, she will be laid off at the
end of the applicable surplus notice period without benefit of further job security
entitlements. Failure to respond to an offer of direct assignment is considered a refusal.
[EmphaSIS added]
The followmg day, August 17, 1995, Ms. Tomann responded to Ms. Weemen's memorandum of
August 3, 1995, to her Sherbourne Street address
Dear Ms. Weemen.
RE Direct ASSignment
In response to your memo dated August 3, 1995, your deCision to live in St. Catharmes does not
effect [sic] your surplus rights and entitlements.
You have been made a legitimate offer of employment to a ProbatIOn and Patrol [sic] Secretary
With the Ministry of SoliCitor GeneraVCorrectlOnal Services. The Employer's first obhgatlOn and
your pnmary entitlements under the Collective Agreement, Section 24 6, are to a pOSitIOn withm
40 km of your headquarters. ThiS offer satisfies both the Employer's obligation and your
entitlements.
You have several options dependmg on your response to SGCS 1114/95 If you accept thiS
assignment, you will continue employment with the Ontario Public Service and be eligible to
apply to restricted competitIOns and re-reglster for Job Tradmg.
Your request to volunteer to replace contract workers for free is not an optIOn. Contracts of
employment require payment of wages in return for work performed.
In closing, we are reissuing our original offer that will require a response in 48 hours of receipt.
On the same day Ms. Tomann re-sent the aSSIgnment package to Ms. Weemen at the Sherbourne
Street address WIth the followmg covenng letter
10
Dear Ms. Weemen.
Assignment. SGCS 1114/95
Probation & Parole Secretary - 080AD
Ministry of Solicitor General/Correctional Services
27 Roncesvalles Avenue, Suite 206
Toronto, Ontario
[ am resendmg this package as you did not receive the attachment (ongmal offer letter)
As a result, your acceptance or refusal of this offer must be received not later than Monday,
August 21st at 5 00 p.m. [Emphasis added]
If you refuse this assignment or do not respond within 48 hours, you will be laid off at the
end of the applicable surplus notice period without benefit of further job security
entitlements. Failure to respond will be considered a refusal. [EmphasIs added]
Then, on August 22, 1995, the followmg notification oflay-off was sent by Ms Tomarm to Ms
Weemen at her Sherbourne Street address
Dear Ms. Weemen.
Assignment. SGCS 1114/95
Probation & Parole Secretary - 080AD
Ministry of Solicitor General/Correctional Services
27 Roncesvalles Avenue, Suite 206
Toronto, Ontario
[ am wntmg with respect to your failure to respond to the above offer
On several occasions Corporate Placement ServIces attempted to contact you about responding to
this offer Both on August 11, 1995 and August 17 1995, Corporate Placement mailed letters to
you mdicating that we required a response withm 48 hours and If no response was receIved, it was
considered a refusal and you would be laid off at the end of the applicable surplus notice penod.
Additional attempts were made on August 17 and 18 wherem a letter was counered to your home.
Unfortunately, the courier was unsuccessful m delivenng the package to you.
Consequently I have no further recourse but to advise you that because no response was receIved
by Corporate Placement Services you will be laid off January II 1996 and are wIthout benefit of
further Job secunty entitlements
Dr Watkms wrote agam "TO WHOM IT MAY CONCERN" on September 19,1995 and stated
the followmg
Ms. Weemen has been receiving treatment for a mechanical back pain. I belIeve
Ms. Weemen should be assigned to duties where she is not exposed to possible
stressful situations.
11
ThIS later note, was not m Ms. Weemen's personal workplace file Ms. Weemen testIfied that
thIS was the second tIme that she had had physiotherapy for the same condItIOn, and that the
government had prevIOusly paId for an adjustment to her work chaIr and for "somethmg to fit m
[her] shoe"
Ms. Weemen filed her gnevance on September 25, 1995, contmued to work at OntarIO Realty
CorporatIOn and was laId off on January 11, 1996, at the end of the applIcable surplus notIce
penod.
On January 3, 1997, Percy Toop, a Corporate Employee RelatIOns AdVIsor wIth the NegotIatIOns
SecretarIat of Management Board Secretanat, wrote to Mr Walker mqumng about the
September 25, 1995 gnevance ofLIlI Weemen and mdIcated that he had no mformatIOn about
the nature of Ms. Weemen s dIsabilIty, nor records of any conversatIOns Ms. Weemen might
have had with the Employer wIth respect to any disabIlIty He was at a loss therefore to know
what mIght have been done to accommodate her In thIS correspondence, Mr Toop put the
Umon on notIce that he mtended to put It "to the stnct proof of dIsabIlIty and accommodatIOn
needs, and when and how, [Ms Weemen] commumcated that specIfic mformatIOn m any fashIOn
to the appropnate employer representatIve" (A later letter refers to an mltIalletter from Mr
Toop to Mr Walker, dated January 2,1997, however a copy of It was not tendered m eVIdence)
The next correspondence that was submItted m eVIdence was from Leonard Marvy Counsel wIth
the Mimstry of the Attorney General, Legal ServIces Branch, Management Board SecretarIat, to
Mr Walker at OPSEU By thIS tIme, the gnevance had been referred to the Gnevance
Settlement Board and was filed as GSB# 1963/95 and was gIven a heanng date of December 7,
1997 CopIes of "the letters of January 2nd and 3rd" from Mr Toop to Mr Walker were noted
as enclosed. Mr Marvy wrote that "the umon has faIled to provIde us wIth the "full and specIfic
partIculars of the breach of the collectlve agreement" requested m the January 2nd letter", and
noted that the "umon IS not dlsputmg the employer's reaSSIgnment offer to Ms. Weemen as bemg
12
a breach of ArtIcle 24 " Mr Marvy stated that "the employer wIll be takmg the posltlon at the
opemng of the hearIng that thIS gnevance should be dIsmIssed pursuant to the decIsIOn m
Glannou v. Management Board Secretanat GSB#570/96 (LeIghton. May 8, 1997) He asked for
the Umon s posItIOn WIth respect to Ms Weemen s grIevance
A subsequent letter dated December 4 1997 from Mr Walker to Mr Marvy notmg the heanng
date of December 8, 1997 and statmg that
It will be the eVIdence of both witnesses [Ms. Weemen and Ms. Guglietti, the umon representative
asslstmg Ms. Weemen at the early stages of her grievance] that the employer was put on notice
early m the grievance process that the content of the ProbatIon and Parole posItion being offered
was such that Ms. Weeman [sic] could not reasonably be expected to perform the duties.
Mr Marvy replIed to Mr Walker the same day, enclosmg copIes of the 3 prevIOUS letters, notmg
the change m the Umon S posltlon. Mr Marvy put Mr Walker on notlce that If the Umon dId
not "provIde the Employer wIth suffiCIent partlculars to make out a pnma facIe breach of the
collectlve agreement (assummg the facts alleged as true for the purposes of the motIOn)" the
Employer would be askmg the Board to dIsmISS the gnevance on a prelImmary motIon.
Ms. Weemen artIculated her perspectlve on the SItuatIOn at the heanng She testIfied that she
had dIscussed the ProbatIOn & Parole posItIOn WIth Human Resources, had read the Job
descnptIOn, and had spoken wIth certam people who worked at ProbatIOn & Parole She told the
Board that the Job to whIch she was reassIgned "was not the type of Job [she] could do", that the
Job was" too stressful" and that she "couldn't move around" In her VIew, the posItIOn WIth
ProbatIOn & Parole was "3 Jobs m aJob", "a henchman's type of Job" wIth nothmg "m French"
Safety was one of the concerns WhICh she artIculated and she explamed thIS by statmg that
"obVIously It IS not safe to take the TTC at Roncesvalles at 7 30 at mght", usmg the example of a
convemence store robbery She understood that she would be dealmg "WIth prostItutes and drug
dealers at mght" and was concerned that a dIssatIsfied chent mIght Walt for her m order "to get
back"
13
She also testIfied that she had planned to move to S1. Cathannes. It was her belIef that m
Toronto, she "could be bumped next day" whereas "m S1. Cathannes they would have one day s
semonty and [she] would have SIX years' and would be the last OAG 8 to be laid off'
Accordmg to Ms GuglIettI, Ms. Wee men had applted for a posItIOn m S1. Cathenne s before
bemg declared surplus.
In Ms. Weemen's VIew, the staff who had assIgned her to thIS posItIOn were mcompetent and had
"pIcked on [her]" She stated that she "never refused the Job" but that she "was not gIVen another
opportumty"
Ms. GugltettI charactenzed Ms. Weemen s SItuatIOn at the tIme of redeployment as "her plIght"
She testIfied that she "wouldn t let [her] daughter work m those places" and that If she had to
work some mghts and some days, that domg so "would make [her] sIck" She was offended that
Ms. Weemen's layoff notIce had been sent to her at home and whIle she was on sIck leave She
testIfied that Ms Weemen's Illness had been caused by the stress of "all the controversy
dIsagreements, her feelmg they were not flexible and accommodatmg"
Accordmg to Ms GuglIettI, the ProbatIOn & Parole posItIOn was a "splIt-tIme posItIOn" and
when it was pomted out to her by Counsel that the reqUIrement was to work one night a week to
7 00 p.m. wIth a start tIme of 11 00 a.m., she replIed that It was "one too many" She
commented that she could not "understand why m the end she [Ms. Weemen s] was left WIth
nothmg, out m lImbo because she dId have constant commumcatIOn WIth that office and they
knew she was home, what she wanted and what [she (Ms. GughettI)] was presentmg" Ms.
GughettI, mamtamed at the hearmg, that Umon and Management, together, should have been
able to "get [Ms W eemen] somethmg more 8 '00 to 4 00 - even a bIlmgual pOSItIOn to settle
thIS" However, durmg cross-exammatIOn, she stated, m reply that It was "the practIce" for
employees to be offered only one chOIce, and then acknowledged that It was more than the
practIce, that It was "the law" as set out m ArtIcle 24 8 1
14
Ms. GughettI, III response to a questIOn from Mr Marvy III cross-exammatIOn, stated that Ms
Weemen had clearly IdentIfied her accommodatIOn needs m the new Job by telephone and letter
and later, m the face of documentary eVIdence, amended her reply to say that the accommodatIOn
request was sImply by telephone Ms Weemen dId not testIfy to requestmg accommodatIOn m
the context of the ProbatIOn & Parole pOSItIon, and It IS the Board s conclUSIOn, based on the
eVIdence, that Ms. GughettI was refernng to Ms. Weemen's WIsh to be accommodated by bemg
gIven a day Job m St. Cathannes and not to her conveymg a speCIfic need for accommodatIOn m
the context of the ProbatIOn & Parole pOSItIOn. Ms. GughettI explamed that there was "no health
and safety" III that pOSItIOn and that she ( Ms. GuglIetti) "wants to protect people" Ms. GuglIettI
acknowledged that she relIed solely on her own ImpreSSIOn to conclude that Ms. Weemen was
"more than upset", and that no medIcal eVIdence was presented to Management by the Dmon on
Ms. W eemen' s behalf durmg the redeployment process or pnor to January 1997
ARGUMENT
The Employer
Counsel for the Employer, Leonard Marvy, argued the motIOn to dIsmISS on the baSIS that the
Dmon has faIled to to make out a case on the eVIdence presented. He submItted that the ongmal
allegatIons m Ms. Weemen s gnevance (that she was wrongfully laid off and mIschieVOUS
behaVIOur) were not proven by the Dmon, Cameron Walker havmg taken the pOSItIOn that the
Dmon was not allegmg that the layoff was undertaken by the Employer m bad faith. The Dmon
had been on notIce smce January 1997 that "accommodatIOn" WhICh was not raIsed m the
ongmal gnevance, would have to be proven stnctly Further, there was no questIOn of notIce to
the Gnevor, smce the fact that Ms. Weemen dId receIve proper and adequate notice was clearly
proven m eVIdence
Mr Marvy submItted that the eVIdence demonstrates that the process undertaken by the
Employer was m accordance WIth the layoff portIOn of ArtIcle 24, that the mformatIOn
proVIded to Ms. Weemen and Ms. GughettI WIth whom she was III constant contact, made It
15
clear that If the assIgnment were not accepted, that Ms. Weemen would be laid off. Throughout
the process, Ms Weemen made no reference whatsoever to any dIsabIlIty, the basIs for
accommodatIOn, and dId not, as was stIpulated m correspondence from the Employer, contact the
supervIsor at her Job assIgnment respectmg any need for accommodatIOn. Fur1;her Mr Marvy
stated, the medIcal documentatIOn, whIch he mamtams falls far short of provmg that there IS a
dIsabIlIty whIch would mhiblt Ms. Wee men from carrymg out the dutIes of a secretary falls to
demonstrate a lInk between the back pam and the posItIon, or to mentIOn any need for
accommodatIOn. He argued that ArtIcle A reqmres that the Employer not dlscnmmate, and the
Umon and the Gnevor to prove a dIsabIlIty and to enter mto the questIOn of accommodatIOn m a
reasonable way That the Gnevor may be stressed and upset by the thought of the assIgnment,
does not make out a breach of the CollectIve Agreement, he argued. There IS no Issue of Ms.
Weemen's abIlIty to carry out the dutIes of the Job, nor IS there an Issue of semonty The
fundamental Issue IS that Ms. Wee men dId not want to work m "Parkdale" and along wIth that,
she noted that there were vacanCIes m St. Cathannes where she deCIded she wanted to be She
dId not, Mr Marvy submItted, even spend a day to see what It was lIke, or try workmg an 11 00
to 7 00 ShIft and takmg a taXI home, (an arrangement often agreed to by the Government on
evemng ShIftS)
Mr Marvy submItted that the Umon has failed III ItS eVIdence before the Board, even If the
Umon were to be gIven the benefit of the doubt, to make out any breach of any term of the
CollectIve Agreement, and on that baSIS, the Board should grant the Employer's motIon for non-
SUIt, and dIsmISS the gnevance
The Union
Cameron Walker, for the UnIon, clanfied the UnIon s pOSItIOn at the outset of hIS argument. He
stated that the UnIon IS not allegmg that Ms Weemen was surplussed m bad faith, nor does It
contend that as part of the surplussmg process, employees have the abIlIty to shop for a pOSItIOn.
The UnIon belIeves that thIS restnctIOn, along WIth the declslon-makmg tIme restnctIOn placed
upon the employee was not unreasonable, gIven the large numbers mvolved m the layoff process
16
Further, Mr Walker stated, the Uillon, does not take Issue wIth the assIgnment of employees
under ArtIcle 24 6 wlthm a 40 kllometre radlUs, and would not take Issue wIth the Employer s
refusal to assIgn Ms. Weemen to St. Cathannes because the Uillon could then find Itselfm the
posItIOn of potentially dlsadvantagmg another member who may be workmg and resldmg wlthm
40 kllometres of the IdentIfied St. Cathanne s posItIon. However the Issue remams, Mr Walker
submItted, as to whether the posItIOn m ProbatIOn & Parole should have been deemed Ms.
Weemen s only match, whether glVen the CIrcumstances at the tIme she was appropnately
deemed to have forfeIted her nghts to an assIgnment by not respondmg wlthm 48 hours. Mr
Walker CIted ArtIcle 18 1
ARTICLE 18 - HEALTH AND SAFETY AND VIDEO DISPLAY TERMINALS
18 1 The Employer shall contmue to make reasonable provIsions for the safety and health of
ItS employees during the hours of their employment. It is agreed that both the Employer
and the Union shall co-operate to the fullest extent possible in the prevention of accidents
and m the reasonable promotion of safety and health of all employees.
He argued, that m the context of that artIcle the SItuatIOn of Ms Weemen could be charactenzed
as a work refusal pnor to showmg up for the first day He stated that upon recelvmg notIficatIOn,
Ms. Weemen and Ms Gughettl went out and spoke wIth the superVISor about what the Job
mvolved. Ms Weemen eVIdence was that she was fearful of contact wIth the chents dunng
busmess hours, entenng and leavmg work, and these fears were exacerbated by the tIme of her
departure on the weekly 11 00 a.m. to 7 00 p.m. shift. The possibll1ty of thIS assIgnment had
such an effect on Ms. Weemen that Ms. Gughettl dId not feel that she could encourage Ms.
Weemen to follow the rule whIch OPSEU generally advocates for itS members whIch is "obey
now, gneve later"
The Uillon does not dIspute that Ms Weemen was capable offillmg the ProbatiOn & Parole
secretanal posItIOn, wIth the exceptIOn of chent contact. It also acknowledges that It has not
presented medical or psychIatnc documentatIon mdicatmg why she could not accept the positIon.
Along with the Employer the Uillon faded to work out a reasonable accommodatiOn for the
health and safety concerns of Ms. Weemen. The medIcal documentatiOn mdlcates that the
stress whIch Ms. Weemen mamtams came from thought of thIS assIgnment, aggravated her back
17
condltlOn to the pomt that she was off work from her posltlOn at the Ontano Realty CorporatlOn.
The eVIdence also demonstrated that the Illness and subsequent death of Ms. Weemen's father
added to her stress. Mr Walker acknowledged that he dId not have eVIdence of other posItlOns m
the Ontano PublIc ServIce whIch have been deemed unreasonable for certam mdlvlduals and
whIch have, therefore, been rescmded. That does not, he submItted, mean that sItuatIOns have
not ansen where the Employer has rescmded an aSSIgnment for that reason.
Mr Walker cIted a paragraph from the mtroductIOn to the Employment AccommodatlOn m the
Redeployment Process, a document ongmatmg from the SpecIal Programs and ServIces Branch,
Management Board Secretanat, and dated June 30, 1994
ThIS document outlmes the oblIgatIons of the OPS as employer to provIde accommodatIon
throughout the redeployment process under human nghts legislation. It also hIghlIghts relevant
sectIons of Management Board DirectIves and GUldelmes on employment eqUIty and focuses on
accommodatIon for persons With disabilIties.
He submItted that this statement embodIes a phIlosophy whIch IS more m keepmg WIth
supportmg the emotlOnal and phYSIcal health of employees than IS the arbItrary rule of acceptmg
a pOSItIon and then attemptmg to work out accommodatlOn afterwards. It was not reasonable
gIven the "hystena" of Ms Weemen to walt untIl she found herself m some sort of cnSIS to
rescmd the match.
The Umon does not contend, accordmg to Mr Walker, that Ms. Weemen should have receIved
one of the posltlOns offered to the other employees who were bemg laid off from the Ontano
Realty CorporatlOn at the same tIme as Ms. Weemen. Nor does It mamtam that the Employer, m
the summer of 1995 had to accommodate Ms. Weemen by creatmg a posItlOn for her m the
Ontano PublIc ServIce, gIven that the mItIal Job offer was not, for her, a reasonable offer
However, It could have been possible for the Mmlstry to rescmd the mltIal Job offer and to have
placed her back on the surplus lIst m September The pOSItIon m St. Cathannes would have
come and gone, and the ProbatlOn & Parole posItlOn was no longer aVailable to her The
Employer could have deemed her not to have had her one and only offer, and thereby could have
18
gIven her the opportumty to be aVailable for assIgnment dunng the balance of her sIx-month
notIce penod. Ms Weemen took the sIx-months workIng notIce rather than the payment In lIeu
and thereby forfeIted all nghts for reassIgnment and the benefit of beIng consIdered on the
mImstry or corporate aVailabIlIty lIst for placement. Had Ms. Weemen accepted the ProbatIOn &
Parole posItIon, begun work and been sICk on the Job as a result of gIVIng It that shot, then the
remedy would have been to rescInd the notIce or alternatIvely, to reassIgn her for medIcal
reasons to another posItIOn In the Ontano PublIc ServIce The fact that she dId not go through
that hoop should go to nothIng but remedy
It was Mr Walker S posItIOn that the Employer In thIS case could have exercIsed some dIscretIOn,
and the oblIgatIOn stIll eXIsts for them to do so They cannot, he submItted, deterrmne arbItranly
what the accommodatIOn would be after the assIgnment of an employee to a new posItIOn.
DECISION
The Ontano PublIc ServIce, Management Board, and OPSEU have negotIated a non-
dIscretIOnary sequentIal surplus protocol. It IS delIneated m ArtIcle 24 The mutually agreed to
protocol sets out the oblIgatIOns of the employer and the entItlements of the employee The
partIes also SIgned a Memorandum of Agreement on DIrect AssIgnment. (It was not submItted m
eVIdence) The Umon IS not dISputIng that the redeployment of Ms. Weemen was In
contraventIOn of ArtIcle 24 or m bad faith.
When an employee of Management Board Secretanat IS IdentIfied as surplus due to
"reorgamzatIOn, work shortage, abolItIOn of posItIOn or technologIcal change" and has opted for
redeployment, rather than qUIttmg, hIs/her name and employee mformatIOn are forwarded to the
Corporate Placement Umt, Management Board Secretanat. The aSSIgnment of employees to
pOSItIons IS governed by the CollectIve Agreement (ArtIcle 24 6 1 supra) and takes mto account
19
semonty quahficatIOn for the posItIOn, locatIOn of the posItIOn m relatIOn to the employee s
headquarters, and the class or posItIOn of the vacancy whIch has been sent to the Corporate
Placement Umt to be filled by employees who are bemg redeployed. Ms Weemen was offered a
posItIOn m accordance wIth the "Memorandum of Agreement on DIrect AssIgnment"
Once a posItIOn IS offered to a surplus employee who has opted for redeployment, that employee
must deCIde wIthm a hmIted time penod whether or not to accept the offer If the offer IS
accepted the employee IS redeployed mto that vacancy If the offer IS refused or Ignored, the
employee IS desIgnated to be laid off and IS mformed of the effectIve date of that layoff. The
process agreed to IS not adjustable or responSIve to mdIVIdual needs or sItuatIOns It IS, however,
subject to accommodatIOn. Management Board Secretanat Issued a dIrective entItled
"Employment AccommodatIOn m the Redeployment Process" on June 30 1994
It IS stated therem.
As with all other employment policies and practices, the OPS must ensure that appropriate
accommodatIOn IS proVIded in the redeployment process to employees WIth speCIal needs. For
example, an employee with a dIsability may requITe technical or human support serVIces when
entenng a retrammg program. Similarly upon an assignment to a vacancy a work schedule may
need to be adjusted III order to accommodate an employee s religIOUS belIefs
The accommodatIOn occurs m the pOSItIOn to whIch a surplus employee IS redeployed. There IS
no eVIdence or suggestIOn that a need for accommodatIOn should mvahdate or alter the
redeployment deCISIOn. Ms Weemen dId not testify to bnngmg any dIsabIhty or need for
accommodation as defined m the Human RIghts Code and the Collective Agreement, to the
attentIOn of Management at eIther Management Board Secretanat or the MmIstry of the SohcItor-
General & CorrectIOnal ServIces Nor dId she gIve eVIdence that she had contacted Hugh Osler,
the supervIsor at ProbatIOn & Parole The Board IS unable to gIve much weIght to the eVIdence
of Ms Gughettl respectmg thIs, because of her confUSIOn and ImpreCIse recall.
The pOSItIOn to whIch Ms Weemen was assIgned was titled "ProbatIOn & Parole Secretary" and
was located pnmanly 111 the office/receptIOn area of the Parkdale ProbatIOn and Parole Office m
Toronto It mvolved the typmg of correspondence, reports and documents, telephone and
20
receptIOn dutles, and mputtmg mto the office and Mimstry Offender Management Systems.
LIaIsmg wIth other offices and courts and the dIstributIOn of mall and messages were also
components of thIS pOSItIOn. Two other aSSIgnments formed part of the pOSItIOn, the first was the
provIsIOn, on a rotatmg baSIS, of secretanal servIces to the InstItutIOn LIaISOn Officer statIOned at
the Metro West DetentIOn Centre m EtobIcoke the second, was, on a rotatmg baSIS, "to work one
evemng per week, 11 00 a.m. to 7 00 p.m., for late reportmg purposes" at the Parkdale ProbatIOn
& Parole Office The Job descnptIOn noted, under addItIOnal mformatIOn m the "AdmImstratIOn
Support" sectIOn, "to handle dIfficult clIents"
It IS the VIew of thIS Board, that Ms. Weemen had determmed for herself the type of pOSItIOn
whIch she wanted and It dId not mclude the one to whIch was redeployed. She appears to have
belIeved that by not co-operatmg and not playmg by the rules that have been establIshed for all
employees who are declared surplus and who choose redeployment, that she would achIeve these
ends. She thought that because she had decIded to move to St. Catharmes and smce there was a
Job m that CIty that was to her lIkmg, that she should be aSSIgned by the Corporate Placement
Umt to that vacancy She appears to have been unable or unwIllmg to accept that there was a
mutually-agreed upon protocol for redeployment WhICh both Umon and Management were
reqUIred to follow, and that speCIal treatment or speCIal deals were not part of the pIcture Ms.
Weemen seemed to feel that because the Job she was offered was to be m more than one locatIOn,
and not wIthm the tlme-frame of9 00 a.m. to 5 00 p.m. each and every day, that she should be
gIven another chOIce She was certam that the posItlon would be dIstasteful and stressful, and
the clIentele not to her lIkmg, and she took the pomt of VIew that she should not be redeployed
mto thIS posItlon. She was even unwIllmg to try Unfortunately, Ms GuglIettI, supported her m
thIS, empathIzmg and agreemg that she should not be placed m such a Job m such a locatIOn,
rather than helpmg her to look for posItlves m her new posItlon and assIstmg her to adjust to the
new posItlon.
Fmally, when Ms. Weemen realIzed that her conduct was not gomg to result m the outcome that
she wanted, and havmg been wrItten to and warned more than once of the need to accept the
21
i
,
pOSItIon wlthm a stated penod of tIme, It was too late She lost the opportumtv and, m the end.
was laId off
The Employer has asked the Board to find that the Umon has faded to produce eVIdence to
demonstrate that it has a prima facie case to place before the Board. The U mon faded to produce
eVIdence that
. The Employer contravened the CollectIve Agreement dunng the redeployment of
Ms Weemen mto the posItIon at ProbatlOn and Parole
. That Ms Weemen reqUlred accommodatlOn due to dIsabIlIty or for anv other
reason, wIth the exceptlOn of a back support for her secretanal chair"
. That Ms. Weemen's health and/or safety were at nsk m the posItion to which she
was redeployed,
. That the Employer dlscnmmated agamst Ms. Weemen m redeplovmg her Into thIS
posltlOn.
Ms Weemen should understand that the fallure to produce thIS eVIdence was not a fallure on the
part of her representatIve Mr Walker who presented her case clearly and In the best possIble
I1ght. It was sImply that the eVIdence was not there
For the above reasons the motIon for non-smt put forward bv the Employer IS successful and
thiS case IS dIsmIssed
Dated at Kmgston, thIS 7th day of July 1999
,
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