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HomeMy WebLinkAbout1996-0951.MAXWELL.96-07-25 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OfVTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (416) 326-1396 GSB # 951/96 OPSEU # 96E543 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Maxwell) Grievor - and - The Crown in Right of ontario (Ministry of Citizenship, Culture & Recreation) Employer BEFORE R J Roberts vice-Chairperson FOR THE G Leeb GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE D Chiro EMPLOYER Coordinator, C.A Negotiation Management Board Secretariat HEARING July 23, 1996 - 1 AWARD I. Introduction In the gnevance leadmg to the present arbItratiOn, the gnevor, a member of the unclassified staff, essentially claimed that her contract was not renewed due to dIfferential treatment by the employer because she partIcIpated m the recent stnke At the heanng, the partIes agreed that thIS gnevance was governed by an agreement that they executed on June 13, 1996, entItled "Memorandum ofUnderstandmg Re Non-Renewal ofUnclasslfied Contracts Followmg the OPS Stnke that Ended March 31 1996" For reasons whIch follow It IS concluded that the gnevor IS not entItled to rehef on the ground that she receIVed dIfferential treatment from the employer because she partIcipated m the stnke She IS, however, entitled to rehef on another ground Accordmg to the eVIdence the gnevor dId not receive 16 weeks' notice of termmatiOn of her contract as reqUIred by the Employment Standards Act. Based upon thIS omiSSiOn by the employer the gnevance succeeds to the extent of requmng the employer to pay the gnevor 16 weeks of wages m heu of notIce, mcludmg 2% 111 heu of benefits. - 2 II. Background The operatIve provIsIons of the memorandum ofunderstandmg of June 13, 1996, read as follows 2 Where an unclassIfied employee who dId not work dunng the stnke had hIS \ her contract termmated eIther dunng the [stnke] or at the end of the stnke, And where an unclassIfied employee who dId work durmg the stnke had hIS \ her contract renewed and \ or extended eIther dunng or after the stnke, Then such cases may be referred to arbItrator, Professor Jack Roberts for final resolutIOn. 3 The followmg shall govern all heanngs conducted m accordance wIth Paragraph 2 (a) The Employer shall have an opportumty to present ItS reasons for the dIfferentIal treatment between the strikmg and non-strikmg employee(s), (b) The Employer shall bear the onus of provmg that the dIfferential treatment between the stnkmg and non-stnkmg employee wIth respect to the renewal \ extensIOn or non-renewal \ non-extensIOn was for valId and legItImate operatIOnal and busmess reasons, (c) The Board shall have the authonty to fashIOn and award any such remedy It deems Just and eqUltable m the CIrcumstances. 4 The partIes agree that the Board's decIsIOns are final and bmdmg and shall not be JUdICially revIewed. Accordmg to the eVIdence at the heanng, from September 1991 onward, the gnevor was contmuously employed at the MIssIssauga office of the Human RIghts CommIssIOn, She was an GAG 5 ReceptIOll1st/Clerk m the unclassIfied staff As a member of the unclassIfied staff, the gnevor worked under an unbroken senes of succeSSIve contracts. 3 In the penod Immediately precedmg the stnke, the employer was engaged m reorganIzmg Its offices. Part of the reorganIzatIOn plan was to merge Its MIssIssauga and Central offices by December, 1996 It was anticipated, inter alia, that this would result m the ehmmatlOn of the gnevor's posItion. Shortly before the strike, on Wednesday, February 21,1996 the gnevor was advIsed by her assIstant supervIsor, Ms. LaurIe Ramone, that her most recent contract would not be renewed. ThIS contract was due to expIre on March 10, 1996 Then, on Thursday, February 22, Ms. Ramone reversed herself. She told the gnevor that she had spoken wIth Mr Nell Edwards, the ReglOnal DIrector, and he mdIcated that the gnevor's contract would be extended. The stnke began about one week later The grIevor respected the strIke and wIthdrew her serVIces until the stnke was over All durmg thIS time, the gnevor understood from her conversatlOn wIth Ms Ramone that her contract was to be extended. When the gnevor sought to return to work on Apnl 1, 1996, however, she was advIsed that her contract had not been extended. Her posItion had been ehmmated and her former dutIes had been dIstnbuted among others m the office on an mtenm basIs pendmg the merger MeanwhIle, Ms. Pauletta Seaton, an unclassIfied employee who performed the same OAG 5 ReceptlOnIst/Clerk duties as the gnevor -- but m the Central office m downtown Toronto -- contmued to work on an extensIOn of her contract. Ms Seaton was JUnIor to the gnevor, m the - 4 sense that she had only worked for the Human RIghts CommIssIOn for one year Dunng the stnke, Ms. Seaton dId not wIthdraw her serVIces. She contmued to report for work throughout the entire time WhIle Ms. Seaton dId not work for the same dIrect supervIsor as had the gnevor, the same RegIOnal SupervIsor, Mr Edwards, had managenal responsIbIlIty over both the Central and Mlsslssauga offices. These facts, the UnIon submItted at the heanng, demonstrated that the gnevor was subjected to dIfferential treatment because she partIcIpated m the stnke III. Determination of the Issue. I find that I cannot accept thIS submIsSIon. At the heanng, It was common ground between the partIes that If the CIrcumstances mvolvmg the gnevor and Ms Seaton had occurred wIthout a stnke, the employer would not have had any duty to replace Ms. Seaton wIth the gnevor Under the collectIve agreement, unclassIfied employees like the gnevor do not have senIonty or bumpmg nghts over other unclassIfied staff. It IS conceIvable that the employer mIght voluntanlv have replaced Ms Seaton wIth the gnevor out of a deSIre to recognIze the contnbutIOn of the gnevor over a longer penod of tIme but It would not have had any oblIgatIOn to take thIS step In my VIew, whIle the partIes mtended m theIr memorandum ofunderstandmg to be generous m determmlllg whether stnkmg unclassIfied employees were the VIctIms of dIfferentIal treatment, they dId not mtend to enlarge the nghts of unclassIfied employees beyond those m the collectIve 5 agreement. It seems to me that the purpose of the memorandum of understandmg was to ensure that unclassIfied employees who observed the stnke were not subjected to retahatIOn In the form of non-renewal or non-extenSIOn of their contracts. The parties contemplated that a retaliatory Intent would be estabhshed by a shoWIng of dIfferential treatment of stnkIng and non-stnkmg unclaSSified employees that could not be Justified by "vahd and legitimate operatIonal and busmess reasons" WhIle the onus was placed upon the employer to prove that differential treatment was Justified by vahd busmess reasons, the partIes did not Intend to force the employer to vest a form of semonty or bumpmg nghts m unclaSSIfied employees to aVOId bemg held hable for retahatIOn. It might be Said that decIdIng not to take a voluntary step hke replaCIng Ms. Seaton WIth the gnevor could, m certaIn CIrcumstances, constItute some eVIdence of retalIatory mtent. If so, It must also be Said that it would fall short of bemg conVInCIng. There would have to be further proof of differential treatment. Here, there IS none There is however, conSIderable eVidence that the employer had "vahd and legItimate operatIOnal and bUSIness reasons" for retaInIng Ms Seaton. The gnevor's posItIOn m MIsslssauga was beIng elImmated m a bona fide reorgamzatIOn. Ms Seaton was employed m the Central office m downtown Toronto not 111 MIssIssauga. She was familIar WIth itS personnel and systems The employer did not have an) duty to canvass its unclaSSIfied workforce for more semor employees to replace her before renewmg Ms Seaton s contract. I am convmced there was nothmg smIster or retalIatory Involved when It dId so ThiS findmg, however does not end the matter Under the memorandum of understandmg, 6 artIcles 3 (c) and 4, 1 was vested wIth broad and unrevIewable authonty "to fashIOn and award any such remedy [I deemed] Just and eqUItable In the cIrcumstances" At the heanng, both partIes agreed that under the provIsIOns of the Employment Standards Act, the gnevor was entI tIed to 16 weeks' notIce of termInatIOn of her contract AccordIng to the eVIdence, the gnevor dId not receIve any such notIce. In fact, she was led to beheve throughout the entIre strIke that her contract was eIther beIng renewed or extended. She dId not find out otherWIse untIl she reported for work on Apnl 1, after the conclUSIOn of the stnke I find that In these CIrcumstances, the gnevor IS entItled to payment of wages In heu of notIce The employer IS hereby dIrected to pay to the gnevor 16 weeks of wages In heu of notIce IncludIng 2% In heu of benefits. I WIll retaIn JUrISdIctIOn pendIng ImplementatIOn of the terms of thIS award. _rft.. Dated at Toronto, Ontano, thI05 dav of July, 1996 --..