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HomeMy WebLinkAbout1996-1096DEY97_08_19 - ONrARIO EMPLOYES DE LA COUFlONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (418) 328-1388 180, RUE DUNDAS OUEST BUREAU BOO, TORONTO (ON) U5G 1Z8 FACSIMILEITELECOPIE (418) 32G-13SHJ GSB # 1096/96 OPSEU # 96F665 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Dey) Grievor - and - the Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE R.H. Abramsky Vice-Chair FOR THE C. Walker UNION Grievance Officer ontario Public Service Employees Union FOR THE N Campbell EMPLOYER Corporate Staff Relations Officer Management Board Secretariat HEARING April 9, 1997 July 8, 1997 - "'~ DECISION The grievor, Darnel Dey, alleges that he was "wrongfully denied the benefits of a successful job match under the voluntary eXIt program" set out In Article 20 7 of the collective agreement. Specifically, Mr Dey offered to be declared surplus and gIve up hIS Job for possible redeployment under Article 207, but no surplus employee was matched to Ius position. There is also a question of whether the Mirnstry determined that the posItion would continue to be filled. Grievances have also been filed by two surplus employees, Mr DaVId Weingartner and Mr Nadarajah Balakrishnan, who claim that they should have been matched to Mr Dey's position, but those grievances are not presently before me. At the outset of the heanng, the Mirnstry raised a preliffilnary issue as to the arbItrabihty of the dispute concerning Mr Dey In ItS VIew, an employee who registers under the voluntary exit optIon and offers his posItIOn for a match under Article 20 7 cannot gneve the fact that no match was made. Thereafter, the partIes sought a determinatIon regarding the folloWing issues InvolVIng the interpretation of Article 207 (Voluntary EXIt Option) of the collective agreement 1 The parties agree that a surplus employee who is derned assIgnment to a pOSItIon available through the voluntary eXist registry may gneve, The employer argues that the standard for reVIew IS whether the employer acted reasonably OPSEU argues that the standard IS correctness, [ 2 -. ;- ~ I 2 OPSEU argues that a less senior surplus employee may gneve, when a more semor surplus employee IS demed assignment to a posItion available through the voluntary eXIt registry, if such demal results m the semor employee being assIgned to a position, which would otherwIse be available for the less semor employee or if the demal results m the less semor employee being dIsplaced, The employer argues that the less senior employee has no gnevance, 3 OPSEU argues that an employee, who has registered wIth the voluntary eXIt registry, may gneve if the employer decides that a surplus employee will not be assigned to the registered employee's position, OPSEU argues that the standard for review is correctness, The employer argues that only the surplus employee IS eligible to grieve. The parties agreed that any rulIng regardmg these Issues would be m the nature of a declaratIOn, but that the ruhng regarding issue #3 would be bmding as to Mr Dey FACTS At the first day of heanng, the parties agreed to the followmg statement of facts 1 Dan Dey, DaVId Wemgartner, and Nadarajah Balaknshnan were all employees of the Ministry of Natural Resources, at the Ontario Forest Research Institute, m classIfied Research Scientist 3 posItions, 2. Mr Balaknshnan and Mr Weingartner received surplus notIces on May 16, 1996 3 Mr Dey dId not receive a surplus notice but entered the voluntary regIstry pursuant to ArtIcle 207.2 on May 23, 1996 4 No surplus employee was matched to the Dan Dey posItIon pursuant to ArtIcle 20 7 5 Mr Dey grieved on June 17, 1996 and has indIcated that eIther Mr Wemgartner or Mr Balaknshnan should have been matched to hIs pOSItion. 6 Mr Dey submItted a letter of resIgnation and left the Mirustry effective June 26, 1996 Mr Dey had the optIon of remaIning on the Job when no match was made under ArtIcle 20 7 He resigned and the only contractual benefit available to Mr Dey upon hIs 3 r - resIgnatIOn was ternunatIon pay of one (1) week's salary for each year of continuous service pursuant to ArtIcle 53 4(b) Had a surplus employee been matched to hIS posItion, he would have receIved, in addition to the termination pay set out ill Article 53, the benefits of Article 20,2 (NotIce and Pay to Lieu), i.e, six (6) months notIce or pay in lieu of notice and eligibility to apply for restncted competitions for twenty-four (24) months. He also would have receIved eIther the enhanced separatIOn allowance set forth in Article 203, or the supplemental benefit set out ill AppendIx 9, paragraph 4 (wluchever was greater) as well as been elIgible for educatIOnal tUItion reImbursement of up to $3000 00 The relevant proVlsions of the collective agreement are as follows. 20.7 VOLUNTARY EXIT OPTION 207 1 Subject to the conditIOns outbned ill ArtIcle 207, an employee who has not receIved notIce of lay-off may offer to be declared surplus and gIve up lus or her Job for possible redeployment of an employee who has receIved notIce of lay-off witlun the previous two (2) week penod, and whose posItIon IS ill the same claSSIficatIOn, the same ffilmstry, and WItlun a forty (40) kilometre radius oflus or her headquarters. 20 7.2 An employee shall advise the Mimstryl Agency Director of Human Resources, ill wntillg, of lus or her deSIre to make an offer referred to ill Article 20 7 1 20 7 3 The pOSItIOn of an employee making an offer under ArtIcle 20 7 1 will be conSIdered to be a vacancy for redeployment of a surplus employee pursuant to ArtIcle 205 (Redeployment), prOVIded the Employer deternunes the position will contillue to be filled. 2074 A non-surplus employee's offer to be declared surplus will not be acted upon by the Employer until such tIme as a surplus employee IS assIgned to lus or her pOSItion ill accordance WIth ArtIcle 20 5 (Redeployment) 4 ,~ 2075 F or the purposes of ArtIcle 20 7, a surplus employee will be assigned to the non-surplus employee's positIon only If he or she IS able to perform the normal reqUIrements of the position without trammg, 2076 Employees who qualify for an actuanally unreduced pension or who could qualify pursuant to paragraph to of Appendix 9 (Employment Stabihty) shall not be ehgible to utihze the provisions of Article 207 2077 Notwithstanding anyth10g 10 any other provisIon of Article 20, the nghts specIfied 10 Article 20 7 shall be exercIsed before any displacement or redeployment nghts. Furthermore, where an employee IS assigned to a posItion pursuant to ArtIcle 20 7 and such employee refuses the aSSIgnment, he or she forfeIts any other nghts under Article 20 and Appendix 9 (Employment Stability) APPENDIX 10 (Article 20.7 - Voluntary Exit Option) Mr Andrew Todd Chief Negotiator Ontano Pubhc Service Employees Union 100 Lesmill Road North York, Ontario Dear Mr Todd, Re: Article 20 7 - Voluntary Exit Option This will serve to clarify certain aspects of the apphcation of Article 20 7 It IS understood that a person who has offered to be declared surplus pursuant to Article 20 7 will, If otherwIse qualified, be entitled to the benefits of paragraph 4 of AppendIx 9 (Employment Stabihty) It IS also understood that where more than one employee offered to be declared surplus Wlth respect to the same employee 10 a pOSItion, the most senior employee who quahfies under ArtIcle 20 7 will be selected, Yours truly, Kev10 Wilson APPENDIX 9 (Employment Stability) 4 Employees who are laid off or who have resIgned and receIve theIr pay 10 heu of notice pursuant to ArtIcle 202 (NotIce and Pay 10 Lieu) will receIve, 10 addition to theIr Article 53 or 78 term1OatlOn payments, a further 5 ... severance package of one (1) week's salary for every completed year of continuous service, This paragraph will not apply to employees who are eligible to retire and receiVe an actuanally unreduced penSion or, as a result of the application of paragraph 2(a), will become entitled to receIve an actuanally unreduced penSion, Employees who are entitled to the amounts specified in ArtIcle 203 (SeparatIon Allowance) shall receive the greater of those amounts or the amount specified in this paragraph, (For the sake of clanty, It is understood that a person w ho resigns pursuant to Article 20 3 (Separation Allowance) shall be considered to be laid off for the purpose of this paragraph.) DECISION A. Issue #1 - The standard of review to be applied when a surplus employee is denied a match under Article 20.7 Article 20 7 5 states that "a surplus employee will be assigned to the non-surplus employee's posItIon only if he or she is able to perform the normal requirements of the pOSItion without traIning." Both partIes agree that a surplus employee who is denied assignment to a pOSition available through the voluntary exit registry may gneve that nonassignment. They dIsagree, however, as to the standard of arbitral review to be applied, According to the Union, the Ministry's decision that the surplus employee was not "able to perform the normal reqUIrements of the pOSitIon without training" must be correct, and the arbitratIon board must review the employer's deciSIOn on that basIs. In support of tlus contentIon, the Uruon CItes to GSB declSlons, under preViOUS collective agreements, pertaIrung to the nght of a surplus employee to be appomted to a vacancy 6 ~--....... "for which he IS quahfied", and, In later agreements, the nght to displace a less semor employee "provIded that the surplus employee is qualified to perform the work of such employee," OPSEU (Loebel) and Ministry of Municipal Affairs and Housing, GSB No 331/82 (Venty), OPSEU (Simard) and Ministry of Community and Social Services, GSB No 33/82 (Roberts); OPSEU (Henderson) and Ministry of Citizenship, GSB Nos. 1097/91 and 1269/91 (Barrett); OPSEU (Heginbottom) and Ministry of Revenue, GSB No 647/81 (Samuels), OPSEU (Smith) and Ministry of Northern Development and Mines, GSB No 1625/93 (Kaplan) In each case, the Ministry had determmed that the gnevor was not "qualified" to perform the work and the arbItration determined for Itself, based on the evidence before it, whether the grievor was "qualified" to perform the work In question. In some cases, the Board agreed with the Mimstry's detenmnatIon, In others, the Board dIsagreed, But In each case, the board conducted ItS own inqUIry Into the Issue. Further, the Umon cItes to OPSEU (Heginbottom) and Ministry of Revenue, supra, where the board speCifically rejected the VIew that an arbItratIOn board's only role is to determine whether or not the process by wluch the grievor's qualifications were evaluated penmtted a faIr judgment to be made, In so ruhng, the board stated as follows at pp 19-20 ArtIcle 24 2 3 makes clear that the gnevor IS to be assIgned to a posItIOn If he IS quahfied to perform the work, Tlus IS an absolute prOVISIOn, The gnevor IS not entitled only to a fair heanng. He IS to get the posItIOn If he can do the work. 7 ~ I In the UnIon's View, the mqUlry under Article 20 7 5 IS the same - that is, whether or not the surplus employee has the present ability to do the job Without traming, Accordingly, It argues that the standard of correctness should be applied here as well, The Ministry argues that the test under ArtIcle 20 7 5 is not whether the surplus employee IS "qualIfied" to perform the job, as 10 the cases cited by the UnIon, but whether the employee is "able to perform the normal reqUlrements of the posItion without training." With tins kind of assessment, it argues that there is an element of subjectIvIty mvolved winch should not be unduly second-guessed by an arbItration board, Accordmgly, It contends that the standard of arbItral reVIew should be whether the MinIstry's determmatIOn was "reasonable", not that It was "correct." In support of its contention, the Employer notes the dIfference m language used by the parties in Article 2075 and other provisions 10 Article 20 Under Article 204 (Displacement), a surplus employee may dIsplace a less seruor employee If the surplus employee IS "qualified to perform the work" of the Identified employee (Article 204 1 (a)(ii), ArtIcle 204 l(b),(c),(d),(e)) Under Article 205 (Redeployment), a surplus employee will be aSSIgned to a posItion that becomes vacant in Ins mmistry duong the notice peood, proVIded, among other tlnngs, that "he or she IS nunimally qualIfied to perform the Job, tins IS defined as the ability to do the Job at entry level. "(ArtIcle 205 l(d)) In its VIew, these deternunatIons may be made ObjectIvely' IS the employee qualIfied to perform the job, yes or no? In contrast, the Mirustry argues that ArtIcle 20 7 5 8 ----,--:...61 reqUIres that the surplus employee be assigned to the posItion "only If he or she IS able to perform the normal reqUIrements of the posItion without training," By uSing dIfferent language, the Ministry argues that a different standard was Intended and that the standard set forth in ArtIcle 2075 involves a much more subjective inqUIry Into an employee's ability to perform the reqUIrements of the Job In support of ItS contentIon that the scope of arbitral review should be whether the employer acted reasonably, the Ministry CItes to OPSEU (0 'Brien) and Ministry of Correctional Services, GSB No 1157/86 (Gandz)~ OPSEU (Da Costa) and Ministry of Health, GSB No 570/84 (Samuels); OPSEU (Kuyntjes) and Ministry of Transportation and Communications, GSB No 513/84 (Verity)~ Re Royal Alexandra Hospital and Alberta Hospital Employees Union, Local 41 (1990), 15 L.A.C (4th) 217 (Jones), Re George Brown College and OPSEU (Mel/or)(1993), 37 L.A.C (4th) 107 (Burkett) After reVIeWing the arguments and cases provIded by the partIes, I conclude that the determinatIon by the Ministry that a surplus employee IS not "able to perform the normal requirements of the position WIthout training" under ArtIcle 20 7 5 must be correct and that an arbitration board may Independently review that decision. In so rulIng, I rely on the reaSOning of the cases Cited by the Union Involvmg the nghts of surplus employees, Under ArtIcle 20 7 5, a surplus employee "will be assIgned to the non-surplus employee's pOSItion only If he or she IS able to perform the normal reqUIrements of the 9 ~. - posItion wIthout trammg," ThIS provIsIon gIves the surplus employee the nght to be assIgned to the position, provided he or she is able to perform the normal requirements of the Job without traImng, That tills is a "nght" IS based on the words "will be assigned", wluch implies a nght to be assIgned, but only if the employee IS "able to perform the normal requirements of the positIOn without trlUning," The fact that a surplus employee has a nght to the posItion if they are able to perform the normal requirements of the pOSItion without trlUning makes Article 20 7 5 similar to the surplus cases decided under ArtIcle 24 of pnor collective agreements, ArtIcle 24 stated that an employee identified as surplus "shall be assigned to a vacancy provided he is qualified to perform the work " (ArtIcles 24,2 1, 24,2.2 and 24.2.3) The deCISIOns m OPSEU (Heginbottom), supra at 19, OPSEU (Loebel), supra at 18a, and OPSEU(Henderson), supra, determined that under tills language, the surplus employee "has the right to be assIgned to a position If he fulfills the conditIOns under the collectIve agreement. " Because ArtIcle 20 7 5 gIves a surplus employee the "right" to the pOSItion If he or she fulfills the reqUIred condItIOn under the collectIve agreement, i.e , that the employee ''is able to perform the normal reqUIrements of the pOSition WIthout traImng", the employer's deternunatIOn that an employee does not meet that condItIon must be correct, In tlus regard, I agree with ArbItrator Samuels m OPSEU (Heginbottom), supra at p 19- 20, that an arbitratIon board IS not hnuted to determmmg whether or not the process by 10 ~ - wluch the gnevor's quahficatlOns were evaluated permItted a faIr and rehable Judgment to be made by the selectIOn board, As he concluded. ArtIcle 24 2 3 makes clear that the grievor is to be assigned to a position if he is qualified to perform the work. This IS an absolute provIsIon, The grievor is not entitled only to a faIr heanng. He IS to get the posItion if he can do the work. The same pnnciple apphes under Article 20 7 5 The senior surplus employee IS entItled to the posItion If he or she is able to perform the normal reqUirements of the positIon wIthout trammg, Consequently, the employer's determination that a surplus employee IS not able to meet tlus standard must be correct. It may well be, as the Ministry asserts, that the contractual conditIOn wluch must be fulfilled m ArtIcle 20 7 5 - that the employee is able to perform the normal reqUirements of the Job without training - IS higher than "quahfied to perform the work" as described in the cases CIted by the Umon under Article 24 as set forth above, For example, m OPSEU (Loebel), supra at 21-22, the board adopted a "tmnimum competence" standard 10 deterffilmng If a surplus employee was quahfied to perform the work under Article 24 See also, OPSEU (Henderson), supra at p 12 ("surplus employee need only have the mimmal quahficatIons to perform the essentIal dutIes of the pOSItIon.") Certamly, the partIes used dIfferent language m Article 20 7 5 than 10 other sectIOns of ArtIcle 20 But that Issue IS not before me and I may Issue no ruhng on It. In terms of the Issue wluch IS before me - the arbItral standard of reVIew - I conclude that even If the standard wluch the surplus employee must meet IS hIgher under ArtIcle 20 7 5, the determmatlon of the employer that 11 - - ....... the employee dId not meet It must still be correct, and a board of arbitration IS obhgated to review It based on that standard. In addition, the Issue of whether the Mirustry properly determmed that the posItion would no longer continue to be filled is also grievable by the surplus employee, but the standard of review for that determination is "reasonableness." The junsprudence IS clear that management's deciSion not to continue to fill a position is reviewable at arbitration, As ArbItrator Knopf held m OPSEU (Radnor) and Ministry of Natural Resources, GSB No 1426/96 et al. (Knopf), at p 18, "it IS within management's rights to determine whether there is sufficient work or a need or deSire to fill a vacant position when that determination IS made on the baSIS of objective pnncIples," The decIsIon cannot be made thvolously but must be based on legitimate, business-related factors. A snnilar standard was apphed m OPSEU (Da Costa) and Ministry of Health, GSB No 570/84 (Samuels, Vice-Chair) m relation to the scheduling of vacation time. As the board held at p 12 It IS management's nght to make the decIsIon, But m makmg the decIsIon, management must engage m a real exerCIse of managmg the undertalang, The decIsIon must be made m the interest of the undertaking, rather than to further some other ends, [T]he deCISIon must not be arbItrary, but must be made m good faith and wIthout dIscnnunatlOn, Management must take mto account relevant factors in conung to ItS decIsion, and must not base Its decIsIon on factors unconnected wIth legItimate busmess purposes, If this IS done, then the decIsIon cannot be questIOned. 12 - - Cf, OPSEU (0 'Brien) and Ministry of Correctional Services, supra(decIsIon regard10g compaSSIonate leave must be exercIsed reasonably); OPSEU (Kuyntjes) and Ministry of Transportation and Communications, supra (decisIOn regarding compassIOnate leave must be exercIsed reasonably), OPSEU (Anderson) and Ministry of Correctional Services, GSB No 3005/90 (Watters)(employer's power to change employee's hours must be exercIsed reasonably) Under Article 2073, management has the nght to decIde whether the posItIon will continue to be filled. But that decIsion must be made in good faIth based on legitImate, bus1Oess-related factors, and the deciSIon is reviewable, at arbitration, to ensure that management acted reasonably B. Issue #2 ~ Does a less senior surplus employee have the right to grieve, when a more senior surplus employee is denied assignment to a position available through the voluntary exit registry? The Umon contends that a less semor employee has the nght to gneve when a more semor surplus employee IS demed assignment to a posItion available through the voluntary exit regIstry, If that demal results in the semor employee be10g aSSIgned to a pOSItIon whIch would otherwIse be available for the less semor employee or If the demal results 10 the less semor employee be10g dIsplaced, 13 ~ . In the Uruon's VIew, the less seruor surplus employee would have the nght to gneve the derual of an assIgnment of a posItion under the voluntary eXIt regIstry to a more senior surplus employee, even where the more seruor employee does not gneve that action. It argues that m such a case, the less semor employee has been disadvantaged by the employer's action and consequently should have the right to gneve the employer's determmation, The Union subrruts that although the decision whether or not to proceed to arbItration IS the Umon's, under Blake et al. and Amalgamated Transit Union et al , GSB No 1276/87 et al. (ShIme), the employee should not be precluded from pursumg a gnevance, It argues that the same is true for the third, fourth and fifth less senior surplus employees and so on down the line, with the question of whether a remedy is available or not to determined by the board, In its view, the remoteness of a remedy is not a basIs to determine a claim is inarbitrable, Indeed, the Uruon argues that the fact that no remedy eXIsts should not preclude a gnevance. The Uruon further contends that the sItuatIOn is no different than a job competition whereby there are several grievors who claIm they were Improperly denied the positIon, In ItS VIew, the fact that an employee IS trurd, fourth or fifth m seruonty does not preclude the employee from gnevmg. In support of ItS pOSItIon, the Uruon relIes on ArtIcle 22 - Gnevance Procedure. ArtIcle 22 1 which states as follows. It IS the intent of trus Agreement to adjust as qUIckly as possible any complamts or dIfferences between the partIes ansmg from the 14 ~< ~ mterpretation, application, admmIstratIOn or alleged contraventIon of thIS Agreement, mcludmg any questIon as to whether a matter IS arbItrable The Umon argues that under this provIsion any complamt or dIfference between the parties ansmg from the apphcatlon or adnunIstration of the collectIve agreement may constItute a gnevance, and that tros situatIon falls Within that framework. The Mimstry contends that when a senior surplus employee IS denied a match and chooses not to gneve that deternunatIOn, the more junior surplus employee should not have the right to gneve that nonmatch. To allow the junior employee to proceed, it contends, would effectively force the more senior employee mto a posItion he does not want. If the gnevance succeeds and the more semor employee then refuses the posItIon, under Article 20 7 7 he or she forfeits all other nghts under Article 20 and Appendix 9 The Ministry subnuts that a JUnior employee, even though possibly adversely affected by the nonmatch, should not be in a pOSItIOn to grieve that nonmatch and force the position on the more senior employee, In its view, the Union's contentIon that the fact that the third, fourth and fifth less senior employees on so on down the lme could also gneve only exacerbates the SituatIon, The Ministry further argues that under ArtIcle 20 7, It IS the senior surplus employee who IS entItled to the available posItion If he or she has the abihty to perform the normal reqUIrements of the Job wIthout trammg, Consequently, It contends that only the senior surplus employee may gneve a nonmatch, While It acknowledges that some 15 . ~ prejUdICe may be suffered by the less senior employee as a result of the nonmatch, it asserts that the less semor employee still has no right to gneve, In response, the Union contends that even where the more semor employee does not want the available positIon and consequently does not gneve the nonmatch, the less semor employee should be allowed to grieve. In the Umon's view, it IS not for the more semor employee to pick and choose what Job he wants -- If he or she IS quahfied to perform the normal reqUirements of the Job without traimng, the employee must be assigned to the job and accept the assignment or forfeit, per ArtIcle 20 7 7, all other rights under Article 20 and Appendix 9 In my view, when a senior employee is denied assIgnment to a position available through the voluntary exit registry and chooses not to gneve that nonassignment, a less senior employee may not grieve that nonassignment to the more senior employee, In that SItuation, the less senior employee is not directly affected by the nonmatch, but may be indIrectly affected, either through the senior employee beIng assigned to a position which would otherwtse have been available to the less semor employee or the denial results in the less seruor employee beIng displaced, His claim, however, is not Independent but IS denvatIve of a perceIved VIOlatIOn of the collective agreement to the more semor employee, 16 ~~ ~ Although the language of Article 22 IS qUIte broad, allowlllg gnevances over "any complalllts or differences between the parties ans10g from the 1Oterpretation, applIcation, adffilmstratIOn or alleged contravention of this Agreement. " that language cannot allow an employee to make a chum regardless of hiS llldIvIdual interest 10 the matter To gneve, an employee must, at least arguably, be directly affected by the employer's action, That concept IS clear from ArtIcle 22,11 1, Group Grievance, which states that "[i]n the event that more than one (1) employee is directly affected by one specific incident or CIrcumstance and such employees would be entItled to grieve, a group grievance shall be presented. " While the purpose of this section IS to allow the filing of a group grievance rather than have multiple llldividual grievances, it clearly indIcates that an indiVIdual must be "directly affected" by an inCident or CIrcumstance to have a grievance, To allow denvatlve claims to proceed would enable employees to grieve the most llldIrect matters. For example, employee "A" would be able gneve the nonselectIon of employee "B" in a job competItion (in which A did not and could not have applIed) where B's nonselection results 10 a lack of opportumty for A. Clearly, A's mterest 10 B's not belllg selected IS very 10direct -- It results in a loss of opportumty to A. But only B has a suffiCIently direct interest to gneve hIS nonselectIon, Even though there may be consequences to an employee as a result of the employer's deCISIon, that employee cannot lItIgate what IS clearly someone else's cause of actIon, 17 -.'U-- A different sItuation anses If the less semor employee has an mdependent claIm to the posItion (i.e , that he was able to perfonn the nonnal requIrements of the Job Without trairung and should have therefore been matched). That issue may be grieved. It would be akm to a Job competItIOn where a more Jumor employee clatms that he should have been awarded the posItIOn, In that case, the employee IS directly affected by the employer's selectIon. But where the employee IS not clatmmg the posItion Itself, but only that the pOSItIOn should have been given to another, hIs claIm is too indirect to be gneved, Accordingly, I conclude that the less senior surplus employee would not be able to grieve the demal of an assignment to a position available through the voluntary exit registry to a more senior surplus employee. Issue #3 - Whether an employee, who has registered with the voluntary exit registry, may grieve if the employer decides that a surplus employee will not be assigned to the registered employee's position? The Umon contends that an employee such as Mr Dey, who elects to offer to be declared surplus and gIve up hIs job for possible redeployment, has the nght to grieve If the employer deCIdes not to aSSIgn a surplus employee to hIs pOSItIon, It contends that the financIal ImphcatIons of that deCISIon to the employee are sIgmficant - the loss of ArtIcle 20 and AppendIx 9 benefits - and that the employee should be able to gneve the employer's detennmatIon, The Umon further argues that the standard of reVIew of the employer's deCISIon not to match an mdiVldualls "correctness" 18 The Mimstry contends that an individual such as Mr Dey cannot gneve the decision not to match a surplus employee, In Its view, the only nght a non-surplus employee has under the Voluntary Exit OptIOn IS to offer to be declared surplus and gIVe up his Job for possible redeployment to a surplus employee. But that offer, It argues, need not be accepted and IS dependent on a match being made, citing Article 20 7 4 which states "A non-surplus employee's offer to be declared surplus will not be acted upon by the Employer until such tIme as a surplus employee is assigned to his or her position in accordance wIth ArtIcle 20 5(Redeployment)." Hence, the Mimstry contends that there IS no "nght" on the part of Mr Dey to demand that a match be made. His only "nght", it suggests, is to register for the voluntary exit option. It subrmts that the purpose of Article 20 7 was to encourage employees to voluntarily leave the publIc servIce by proVIding extra benefits If a match IS made so as to prevent semor employees from being surplused, not to provide a Windfall to employees planning to leave government servIce anyway F or that reason, it argues that the benefits of Article 20 7 attach only once a match IS made, not before, It pomts out that when no match is made, the employee IS free to remam at work and therefore suffers no prejudice as a result of a nonmatch, But If he thereafter chooses to reSIgn, the employer argues that he is not entItled to the extra benefits under ArtIcle 207 At that pomt, It argues that the employee voluntarily resigns and IS entItled only to termmatIon benefits under ArtIcle 53 19 - Further, the Employer argues that allowmg Mr Dey to grieve a nonmatch could, If successful, either force a match on an unwilling employee or reqUIre that employee to forfeit all of his nghts under Article 20 and Appendix 9 In my view, an employee who voluntarily regIsters under Article 207, Voluntary Exit OptIon, may not gneve the Ministry's decision not to assign a surplus employee to rus positIon, As set forth above, to gneve, an employee must at least arguably be directly affected by the employer's actIon, In thIS case, an employee who volunteers to be declared surplus and offer up rus job for "possible redeployment" IS not adversely affected by the employer's deciSIon not to match a surplus employee to rus position, If no match is made, the employee keeps rus Job He keeps rus pOSItIon, senionty, benefits and so forth. Essentially, his offer IS declined, and he is restored to his status quo ante If he thereafter decides to resign anyway, that is his choice, and he is entitled to whatever contractual benefits the collectIve agreement provides, but not the benefits of Article 20 wruch apply only to those employees who are declared surplus, Because the employer's deCISion not to match a surplus employee to the pOSition leaves the employee who volunteers rus job in exactly the same pOSItIOn he was In before he made rus offer under ArtIcle 207, the employer's deCISion does not "directly affect" him, Although he IS not then entItled to the benefits of ArtIcle 20 and AppendiX 9 (wruch are substantial), that effect IS mdIrect. It flows as a consequence of the employer's deCISIon III relatIon to the surplus employee -- that the surplus employee IS not able to 20 --"-,~ perform the normal reqUIrements of the posItion without trammg. F or this reason, hIS claIm IS not mdependent, but IS denvatIve of a possible vIOlatIon of the nghts of the surplus employee. Accordingly, it is the surplus employee who may gneve the nonmatch, not the employee who offers up his Job In this regard, I agree wIth the Mirustry that an employee who offers to be declared surplus has no "nght" under Article 20 7 to be declared surplus, The language of Article 20 7 states that the employee "may" offer to be declared surplus and gIve up his job for "possible redeployment" of a surplus employee. There is nothing mandatory about the proVIsion m relation to the employee offenng to leave, Further, as stated by the employer and not refuted by the Union, the purpose of ArtIcle 20 7 IS to encourage employees to voluntarily leave government servIce by providing them the benefits of ArtIcle 20 in order to preserve a Job for a surplus employee. Consequently, those benefits attach only when a match 15 made. Finally, even though the employer' 5 determination under ArtIcle 20 7 is not revIewable by the employee who voluntarily offers rus Job up for possible redeployment, It would clearly be revIewable through a gnevance filed by a surplus employee who IS demed a match, In that way, the employer's determmatIOns under ArtIcle 20 7 wIll be subject to arbitral reVIew 21 Consequently, for all the reasons set forth above, I conclude as follows, 1 Issue #1, I conclude that the standard of reView is "correctness" when a surplus employee who is denied assIgnment to a positIon available through the voluntary exit registry grieves that detemunatIon, , 2 Issue #2, I conclude that a less senior surplus employee may not gneve the denial of an assIgnment to a more senior surplus employee of a posItIon available through the voluntary eXIt registry 3 Issue #3 I conclude that an employee who has registered with the voluntary exit registry may not grieve the employer's decIsion not to assign a surplus employee to the regIstered employee's pOSItion. Issued tills 19th day of August, 1997 in Toronto, Ontario 22