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HomeMy WebLinkAbout1996-1426RADFORD97_06_12 O/'lrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONErrELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-13~ GSB # 1426/96, 1427/96, 1428/96 OPSEU # 96G111, 96G109, 96G110 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Radford) Grievor - and - the Crown in Right of ontario (Ministry of Natural Resources) Employer BEFORE P. Knopf vice-Chair _. FOR THE C. Walker GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE N Campbell EMPLOYER Corporate Staff Relations Officer Management Board Secretariat HEARING May 9, 12, 1997 DECISION This gnevance anses as a direct result of the massive restructunng and downslzmg of the Mimstry of Natural Resources m the spnng of 1996 The Gnevor has ". considerable semonty He was working as a Dlstnct InformatIOn Officer, classIfied as an 102 m the Bracebndge area office. On May 16, 1996, he was the most semor of the ten 102s declared surplus as part of a huge number of declaratIOns on that day Three gnevances have been filed. One claIms that the Gnevor should have been directly assigned pursuant to Article 205 mto an 102 pOSitIOn 10 the Midhurst area office (heremafter referred to as the Midhurst posItIon) The second gnevance alleges that the Mimstry violated Article 6 6 1 by not glvmg the Gnevor a lateral transfer mto the Midhurst posItIon. The third gnevance alleges that Article 4 3 1 was vIOlated 10 that the competitIon for the Midhurst pOSitIOn was flawed. The Grlevor IS seeking placement mto the Midhurst pOSItIon by way of a remedy Because the remedy bemg sought will potentially affect the mcumbent 10 .. the Midhurst pOSItIon, notIce was given to that mdivldual, Mr Ed Paleczny Mr Paleczny attended at the heanng and VOiced hiS deSire to participate 10 the proceed1Ogs. He was granted status at the heanng. More will be said later about lus position and lus nghts at tlus heanng. The parties approached thiS case 10 a very professional and appropnate manner A detailed "Agreed Statement of Facts" was filed that sets out most of the relevant factors necessary to frame the Issues for the arbitratIOn. Further eVidence was presented by way of viva voce testimony and witness statements that helped expla10 and/or clanfy Important details As a result, there IS no dispute over the relevant facts - 2 - The parties also agreed that the Board should decide the direct assignment case first because If the Gnevor succeeds In that, the other gnevances would be rendered moot. Therefore, this A ward shall deal only wIth the eVidence and argument directed at that Issue In the latter months of 1995 and the early months of 1996, the Mirustry was deeply Involved In designIng and plannIng for the government's mandated reorgaruzatIon and downsIzIng of staff that would occur In May 1996 In order to aclueve tlus seenungly Impossible goal, management undertook a busIness plannIng exercise designed to determine the core busIness and staff reqUirements that would meet the Imposed targets for downsIzIng. Meanwhile, the busIness of operatIng the Mirustry and providIng services contInued. Each regIOn had a busIness plan with a staffing profile. However, the numbers of staff were funded for only 93 5% of the salary requirements. In order to function Wltlun the budget as reqUired, local management undertook what the OperatIOns Manager, Dan Yarranton, called "vacancy management" As he explaIned, a vacancy rate of 5% or 30 posItions In the Gnevor's area was maIntaIned by capitalIZIng upon events such as "Factor 80 eXits", LTD and other sick leaves, underfills, and holdIng or postporung the fillmg of vacancies The purpose of thIS strategy was to aVOId fillIng posItIOns as long as possible In order to accommodate the shortfall In budgetary dollars. ThiS strategy was compounded In July 1995 when management embarked upon the redeSign of the orgamzatIOn and the development of the new busIness plan The Mimstry put a freeze on hmng or fillIng any posItions Previously, a RegIOnal Director could have approved the filling of a posItIon. But as of July 1995, approval had to be - 3 - obta1Oed at the AssIstant Deputy Mimster level The purpose of the freeze was to curtail the staffing of an organIzatton that was 10 the process of redesign. Further, there was a concern about filling posItions that may be declared surplus 10 May 1996 Therefore, only the AssIstant Deputy MinIster had the authonty to deem a pOSItIOn "cntlcal" and thereby tngger the filhng of a vacancy A RegIonal DIrector had to apply to the AssIstant Deputy MinIster for "clearance" to fill cnttcal posItions. In the Gnevor's region, the potenttal of filhng a pOSItIOn was dIscussed monthly at regional management meet10gs RegIOnal DIrectors, managers and the DIstnct Manager met to dIscuss, amongst other Items, what pOSItIOns were empty and whIch were "cntlcal to fulfill10g the mandate" Tlus would be assessed agaInst the salary budget shortfall for vacancy management purposes. On May 16, apprmumately 900 mInIstry employees were Issued surplus notIces. Pnor to this, Human Resource staff had conducted presentatIons to adVIse employees of theIr nghts and opportunIttes. SpeCIfically, they were 10structed about theIr dIsplacement nghts and how ArtIcle 24 of the collectIve agreement worked. They were shown what to fill out to make themselves available for posItIons both wlth10 and outSIde the collectIve agreement's cntIcal40 kilometer radIUS. Thereafter, each employee who receIved a surplus notIce 10 the Gnevor's dlstnct was gIven lus/her surplus notIce personally The Gnevor was also gIven a portfoho contaInIng dIrectIOns on how to fill out the reqUIred adm10lstratlve forms whIch outl1Oed whIch optIOns were available to lum. The letter gIven to the Gnevor reads 10 part At the tIme of tlus notIce, there IS no vacancy available to whIch you may be matched pursuant to ArtIcle 24 5 However, the followmg options may rema10 available to you 1 You may request pay In heu. If you do, you will receIve payment for the balance of your notIce penod, plus separatIon pay (paragraph 4 of AppendiX 14) and term1OatlOn pay (ArtIcle 53) If you take advantage of thiS optton you will forfeit - 4- all nghts under the collective agreement, except for the nght to apply to restncted competitions for a penod extend10g twenty- four (24) months after the layoff date 10dlcated above or 2 You may be ehgible for a pension bndg10g option, which 10cludes paid and unpaid leaves to bndge to an unreduced pension or 3 If you were eligible but did not access the Factor 80 Retirement Program, your ehgibilIty w1Odow will reopen for a short penod. In order to retire under this Program, you must elect to do so, 10 wnt1Og, wltlun thirty (30) days ofrecelv1Og this letter You must also retire wlth10 this same tlurty (30) day penod. Retirement under the Factor 80 Program means you wIll forfeit all rights under the collective agreement. or 4 You may remaIn on notice for the SIX (6) month notice penod and cont1Oue to be considered for assignment to a vacancy If one becomes available. If you are not assigned to another pOSitIOn before your layoff date, you will have recall nghts for twenty-four (24) months from that date provlded you defer recelv10g your termmatlOn pay (Article 53) In additIOn, If you choose tlus option you may be ehgible to displace another employee The Gnevor was also given a letter on the same day advlSlng lum that a "displacement" opportumty was available to hIm wlth10 40 kilometers of hlS eXlst10g headquarters. The position was claSSified as an 101, wluch was one lower pay rate than the Gnevor's claSSificatIOn at that time It should also be noted that the Gnevor had been previously red-Circled at an 103 rate The Gnevor was adVised that lus rate would be red Circled untillus ong1Oal date of layoff He was also adVised If you decide not to displace, you wIll remam on notice until the layoff date 10dlcated 10 your surplus notice, dunng which tlme you will cont1Oue to be elIgible for redeployment under SectIOn 24 5 You will also have recall nghts for twenty-four (24) months from your lay-off date If you have not been aSSigned to another posItion by that date and If you defer recelv10g your termmatlOn pay (Article 53) - 5 - You must advIse your manager, usmg the enclosed form, of your decIsIOn regarding thIs dIsplacement wlthm seven (7) calendar days from the date of thIs letter If your decIsIon IS not receIved by that time, you WIll be deemed to have gIven up your nght to dIsplace and opted for redeployment. The Gnevor was very upset by the dIsplacement posItIon bemg offered to hIm. Havmg at one tIme aclueved the rank of an 103, the prospect ofbeconung an 101 and recelvmg the lower rate m the near future was very dlstressmg. But he also realized the enormIty of the downslzmg and, as he explamed, "he had no reason to beheve" that any options for vacancIes as an 102 may come available He was qUIte aware of the fact that he was among ten 102s m hIs regIon who had Just receIved surplus notIces. At the same time, he understood that If he dechned the 101 posItion he would be placed m the redeployment pool and be offered an opporturnty to fill any vacancy that fit WItlun the cntena of ArtIcle 20 5 1 of the collectIve agreement. The Gnevor had seven days to deCIde what optIOn he would choose In that seven-day penod he had access to Ministry and Urnon representatives for advIce and counsel. He availed lumself of thIs. He studIed the collectIve agreement and began to fill out the employee profile whIch he was aware could make lum ehgible for consIderatIOn for placement m vacancIes m the 40 kilometer radIUS of lus current headquarters The Gnevor spoke to several people, mcludmg hIS fellow employees, m order to weIgh hIs options He spoke to hIS InformatIOn Management SupervIsor at the Bracebndge office and discussed the consequences of dechrnng the dIsplacement opporturnty to the InformatIon Officer 1 posItion. The Gnevor's mam concern at that pomt was that he nught not get assIgned or get assIgned to a dIstant locatIOn If he dId not accept the dIsplacement opporturnty offered - 6 - On the seventh day after recelvmg the surplus notice, bemg May 22, the Gnevor filed his acceptance of the offer of displacement to the 10 I positIOn. Later that day, he began to hear rumours of the possibility that two 102 vacancies would become available, one bemg m nearby Midhurst. The followmg day, May 23, he reissued hIs acceptance of the 101 displacement, notmg he was acceptmg It "under duress" His explanatIOn for this term IS that he felt that "somethmg had gone wrong" Ifhe was m the process ofbemg surplussed from one positIOn while two Identical posItions were m the process ofbemg created. The remamder of facts whIch are relevant to thIs portion of the Gnevor's case IS set forth m the parties' Agreed Statement of Facts and shall be quoted directly. The staffing hIstory of the Midhurst Information Officer posItion IS as follows the pOSitIon was created m 1992, and staffed by full-tIme classIfied mcumbent Peter Gill, upon Gill's retIrement m 1994, AllIson Turner assumed the dutIes of the positIon on a trairung and development assignment, at an underfill rate until April 1996, and at the full rate unttl July 1996 when she eXited from the servIce after haVIng been surplussed from her home pOSitIon. , Midhurst DIstnct IS located beyond a 40 kIn radIUS ofBracebndge On June 14, 1996, Human Resources requested clearance for the Midhurst 102 pOSItion - competitIOn NR-1 005/96 As there were no nnrumally qualIfied 102s on the MNR surplus lIst at the tIme, MNR sought MBS clearance As there were no mIrumally qualIfied on the Corporate surplus hst at the time, MBS proVIded MNR WIth clearance to post the positIOn (MBS clearance number NR 6966796 P) Human Resources was adVised of the clearance on June 26, 1996 On June 27, 1996, the positIOn ofDlstnct Information Officer (102), Midhurst, was posted for competitIOn. At vanous times after acceptmg the displacement mto Dorset, and before the postmg of the Midhurst pOSitIOn, the gnevor mqUlred as to hiS - 7 - entitlement to access 102 vacancies that were rumoured to be forthcommg (the Midhurst position mcluded) He was advised first that the rumours of upcommg vacancies were simply rumours until appropnate approvals had been given, and second that smce he was no longer surplus, he could not be assigned pursuant to Article 20 5 to any such vacancy as might anse, but that he could bid on the competitions. The second most semor surplussed Information Officer at the time was Mr Bill Murch, surplussed out of the Aylmer Dlstnct on May 16, 1996 Mr Murch had approached local Human Resources to mqUlre about rumours of an upcommg Information Officer positIOn 10 Cambndge, he was told that the Mimstry could make no assurances regard 109 whIch posItions might be approved for fillIng 10 the future, and offered no opmlOn as to what election Mr Murch should make regarding hIs offer of displacement. Mr Murch rejected hIs displacement offer, electmg to remaIn on the surplus lIst and available for possible redeployment opportumtIes, he was subsequently redeployed 10 June 1996 to the InformatIon Officer 102 vacancy In Cambndge once It had receIved ASSistant Deputy Mimster approval for staffing action. The partIes agree that the gnevor has the ability to perform the reqUired dutIes of the InformatIon Officer 102 pOSItion 10 Midhurst. The thrust of the gnevance IS the Grievor's anger about the fact that he was declared surplus WIthIn weeks of the determmatlOn that a pOSItIon WIth hiS same classIficatIon was opened as an available a vacancy to others. A great deal of eVidence centered on the employee profile that the Gnevor was gIven as part of hIS portfolIo at the tIme of be 109 surplussed. It IS a detailed form which enables an employee to provide mformatlon to the Mimstry's Central Redeployment RegIstry which eXists to match surplussed employees to vacancies and potential placements. The form contams a section allowmg an employee to mdlcate If slbe would accept a placement outside the 40 kIlometer radIUS The Gnevor testified that he understood the form would be used to help match people to positIOns He understood the form would be used 10 hiS case If he had not accepted the displacement opportumty and had not gone mto the redeployment pool. However, after acceptmg the displacement - 8 - Into the 101 posItIOn, the Gnevor saw no reason to complete or submIt the portfolIo Accordingly, he was never consIdered for a posItion outsIde the 40 ktlometer radIUs because he had never indIcated to management hIs wJlhngness to be consIdered for such a posItion. When asked In testImony whether he would have located to Midhurst had he been assIgned there, the Gnevor replIed, ''It would be a senous consIderatIOn. Midhurst IS WIthin commuting dIstance from my home " On June 5 or 6, the regIOnal management team met for theIr monthly meeting. Managers were told to bnng theIr "top pnonty vacancIes" Into the meeting to see whIch ones would be put forward to the ASSIstant Deputy Miruster for approval for fillIng. Of the 30 outstanding pOSItions available to be filled, 12 were agreed to be put to the ASSIstant Deputy Miruster as being cntlcal or "top pnonty vacanCIes." Two of those Involved 102 positIons. One was the Midhurst pOSItIon. The relevant provIsIons of the collectIve agreement are as follows 204 DISPLACEMENT , 2041 An employee who has completed rus or her probatIonary penod, who has receIved notIce of lay-off pursuant to ArtIcle 20 2 (NotIce and Pay In LIeu), and who has not been assIgned In accordance WIth the cntena of ArtIcle 205 (Redeployment) to another posItIOn shall have the nght to displace an employee who shall be IdentIfied by the Employer In the follOWing manner' (h) The surplus employee must indIcate In wntlng to the Mimstry/ Agency DIrector of Human Resources hiS or her intention to dIsplace the employee Identified pursuant to paragraph (a), (b), (c), (d), (e) or (t) above, as applIcable Wntten intentIOn to displace must be received by the Mimstry/ Agency DIrector of Human Resources no later than one (l) week followmg the date tbe surplus - 9- employee receIved advIce that he or she was elIgible to dIsplace an employee pursuant to paragraph (g) above 205 REDEPLOYMENT 2051 An employee who has receIVed notIce of lay-off In accordance wIth trus artIcle shall be assIgned to a posItIon that becomes vacant In hIS or her rrumstry dunng hIs or her notIce penod provIded that (a) the vacant posItIon IS In the same classIficatIOn as hIs or her posItIon, and (b) the vacant posItIon IS wItrun a forty (40) kilometre radIUS of rus or her headquarters, and (c) he or she IS rrummally quahfied to perform the Job, trus IS defined as "the abihty to do the Job at entry level", and (d) there IS no other person who IS quahfied to perform the reqUIred dutIes, who has a greater length of contInUOUS servIce and who IS ehgible for assIgnment to the vacancy eIther pursuant to ArtIcle 20 5 or ArtIcle 20 6 (Recall) 205.2 With mutual consent, an employee who has not been assIgned under ArtIcle 20 5 1 shall be assIgned to a posItIon that becomes vacant in rus or her rrumstry beyond a forty (40) kilometre radius of rus or her headquarters provIded the condItIOns outlined In Article 205 1 (a), (c) and (d) are satIsfied. RelocatIon expenses will not be paId. 2053 Where an employee has not been assIgned under ArtIcles 20 5 1 or 20 5 2, he or she shall be assIgned to a pOSItIOn that becomes vacant In any rrumstry provIded the condItIOns outlIned In ArtIcle 205 1 (a), (b), (c) and (d) are satIsfied. 2055 If In accordance WIth ArtIcles 20 5 2 and 20 5 4, an employee IndIcates that he or she IS willIng to be assIgned to a pOSItIOn that becomes vacant In a speCIfic locatIon beyond a forty (40) kilometre radIUS of hIS or her headquarters and the employee IS offered an assIgnment WIthIn a forty (40) kIlometre radIUS of that locatIon, refusal of the Job offer will result In lay-off at the end of the notIce penod - 10 - 209 ATTRITION 2091 It IS understood that attntlOn can be used effectively as a - redeployment strategy The Employer agrees that, wherever possible, It will utilIze attntlon as a means of reducmg the workforce The Submissions of the Parties The Umon argues that the Midhurst pOSitIOn should have been made available to the Gnevor pnor to hIm bemg forced to accept the mfenor placement to the 101 position. It was stressed that had the Midhurst position been deemed available, the Gnevor should have been told about It. The delay until June 12 10 makmg the pOSitIOn available was saId to be contrary to the spmt and language of the collective agreement. Further, It was said that the Mimstry should have rescmded the Gnevor's displacement to the lower rated posItion and gIven hIm the Midhurst pOSitIOn because he was the most semor of the surplussed 102s 10 the provmce and because the displacement was not finalIzed until July The Umon concedes that there was a wmdow of time available to the Gnevor 10 the seven days dunng wluch he was entitled to be assigned to a vacancy The Umon also concedes that once the Gnevor made hiS election under Article 20 4 1 (h), lus entitlement to available vacancies ended. However, the Umon emphasizes that the Midhurst vacancy should have been deemed available to the Gnevor wltlun that seven- day wmdow The Umon emphasizes that Article 20 9 1 Imposes an oblIgatIOn on the Employer to ensure that the declaratIOns of redundancy should comclde With retirements or eXits so the vacancies are available Given the history of the placement of people mto the Midhurst pOSItion, the Umon argues that It was wIthm the Mimstry's control to have had the Midhurst position available to the Gnevor at the time of redundancy The Umon - 11 - further argues that the history of the approval for filhng the vacancies provides objective eVidence that the position ought to have been conSidered vacant at the time of the ~ declaration of surplus The Dmon fundamentally disputes the propOSitIOn that a pOSitIOn IS not vacant wIth10 the meamng of the collectIve agreement until the Deputy Mimster deems It to be such. The Dmon suggests that an objective test ought to be apphed and rehes on the follow1Og cases. Union Grievance and Ministry of Correctional Services, GSB File #803/91 (DIssanayake), Campbell and the Ministry of Labour, GSB # 13 51/93 etc (Roberts), Conversion Grievance and Ministry of Attorney General, GSB File #461/96 etc (Bnggs) and Penney v Ministry of Natural Resources, GSB #697/96 (Venty) The Dmon also suggests that there IS something almost suspect about the "one day turn around" between the tIme that penmsslOn to fill the Midhurst vacancy was received from the ASSistant Deputy Mimster 10 June to the time that Human Resources began process1Og the Job speCIficatIons and prepanng for the filhng of the vacancy It IS suggested that tlus supports a conclUSIOn that approval for filhng a vacancy was a "mere formahty" and that the real deCISIon was made pnor to that. The Dmon suggests that all tlus should support a declaratIon that the Midhurst vacancy ought to have been deemed to have been available to the Gnevor 10 the seven days pnor to lum mak10g lus electIon 10 May 1996 ) The DOl on also concedes that 10 order to be aSSIgned to the Midhurst pOSition, the Gnevor would have had to 10dlcate lus will10gness to accept a pOSitIOn 40 kilometres outSide of the radiUS of hiS current headquarters. It IS acknowledged that the Gnevor never submitted the employee profile which would have 10dlcated such consent However, the DOl on argues that If the Board were to base Its deCISion on whether the Gnevor's pemllsslOn or consent was subnutted, It should have been - 12 - concluded that he would have filled out such a form had he been aware that the Midhurst posItion was avatlable In short, the UnIon requests a declaration that the Midhurst position should have been deemed aVaIlable for direct assignment to the Gnevor had he requested It under Article 20 4 2 The UnIon requests that the Vice-Chair remaIn seized with the question of remedy should the parties be unable to resolve that on their own. Counsel for the Employer stressed that on May 16, 1996 when the Gnevor was declared surplus, there was no currently available vacancy and he was offered the only available displacement opportUnIty It was said that the Midhurst pOSitIOn was not available to the Gnevor at that time because It was part of an ongo1Og organIzational reVIew that was not concluded until June. Therefore, It should not have been deemed to have been an opporturuty available to the Gnevor Further, It was argued that because Midhurst IS only 40 kilometres beyond the radIUS of the Gnevor's current headquarters and the Gnevor had not 10dlcated ills will10gness to make himself available for such a pOSItion, It could not have been deemed an opportUnIty to which the Gnevor should have been assigned. Article 20 5 2 was stressed willch reqUIres assignments beyond 40 kilometres to be made only where there is "mutual agreement." The MinIstry stressed that It had estabhshed the process to make employees able to 10dlcate their wilhngness to relocate 10 order for management to make 1Oformed Judgments as to available opportunIties. The Gnevor's failure to submit ills portfoho was said to be a reason why he should not be able to claim the Midhurst pOSitIOn. The Employer concedes that the Gnevor had to make a difficult chOIce before May 22 10 decld10g whether or not to accept the displacement opporturuty wlth10 seven days of his declaration of surplus. However, the Employer argues that It IS mappropnate to conSider the acceptance as bemg given "under duress" w.thm the meanIng of the law Black's Law Dictionary IS quoted which defines duress as conslstmg -- - 13 - of "any tllegallmpnsonment, or illegallmpnsonment used for an Illegal purpose, or threats of bodily or other harm or other means amountmg to or tendmg to coerce the will of another, and actually mducmg rum to do an act contrary to hiS free will." The Employer argues that the Gnevor's chOice to accept the displacement opportumty was essentially choosmg "the bird m the hand" by takmg the 101 pOSitiOn. The Grlevor was contrasted to another 102, Bill Murch, who chose to remam on the surplus hst and thereby was able to get the 102 position m Cambndge when It became available m June It was stressed that the Grlevor had the same nghts as Mr Murch and the Gnevor IS simply trymg to capltahze on rundslght m order to claim that the Midhurst posItion should have been deemed available to rum. Further, It was stressed that while the Gnevor claIms he accepted the displacement "under duress", he has never mdlcated any mtentIon to Withdraw the acceptance At the same time, the Employer admIts that the option of Withdrawal of acceptance was never offered to the Gnevor After the Grlevor accepted rus displacement opporturuty on May 22, It was argued that the redeployment to the Midhurst posItion was not available to the Gnevor because It would only be available to surplussed employees under Article 20 5 2 The Gnevor's election disentitled rum to that opporturuty Further, It was argued that the eVidence showed that the Gnevor made an Informed and calculated chOice to accept the displacement opporturuty Respondmg to the allegatiOn that the Midhurst posItion ought to have been available to the Gnevor at the time of the surplus, the Employer argued that It IS wlthm management's discretiOn to be able to decide when and If It IS necessary to fill a posItion. It was not asserted that management could act fnvolously However, It was asserted that management had the nght to weigh alternatives and engage m vacancy management as the eVidence mdlcated. In support of thiS propOSitiOn, the Employer rehed on the followmg cases Oil, Chemical and Atomic Workers, Local 9-599 and Tidewater Oil Co, (Canada) Ltd. (1963), 14 L A. C 233 (ReVille), UllIon v Ministry of - 14 - Transportation, GSB File #3094/9] (Low) and Union Grievance and MinistlY of Health, GSB File #1439/86 (Knopf) It IS admItted that It would have been preferable for the Gnevor If the Employer could have decIded 10 April or May whether the Midhurst posItIon was So cntlcal that it needed to be filled. However, It was argued that It was not unreasonable for the decIsIon to be held off until June Then, by the time the posItion had been approved to be filled, the Gnevor had deCIded to take hImself off the surplus hst by acceptmg the displacement opportumty Further, even If the posItion had been approved to be filled 10 May, the Gnevor would not have been consIdered for It because he had not mdlcated rus willmgness to be posted outside 40 lalometres of rus headquarters despIte bemg told how Important tlus was for hIm to be able to be consIdered for such posItlOns Mr Paleczny made submIssIons on rus own behalf In the course of the submIssIons It became apparent that he had not been gIven full or complete notIce about the nature of the proceedmgs nor had he been gIVen a full and tImely explanatlOn as to lus nghts 10 these proceedmgs. However, he dId mdlcate that he dId not Wish to have the proceedmgs recommence and he was content that the proceedmgs contmue so long as he IS gIven notIce of all future scheduhng. The Decision Before turmng to the ments of the case, I should address the pOSItIon of Mr Paleczny As the partIes conceded, Mr Paleczny, as a person who may be dIrectly affected by the remedy the Umon IS seelang, IS entitled to notIce of such proceedmgs In order for there to be proper and suffiCient notice, the mcumbent should have been mformed of hiS fight to attend, hIS nght to retam mdependent counsel, and gIven at least ] 5 days' wntten notIce of the tIme and place of the proceedmgs Further, the notice should have mdIcated to hIm that he had the nght to partICIpate 10 the proceedmgs either - 15 - on his own behalf or through counsel The responsiblhty for provldmg such notice rests with both the Employer and the Umon Unfortunately, full and suffiCient notIce was not given to Mr Paleczny Given the nature of the Issues addressed 10 the case so far, Mr Paleczny mdlcated hIS willmgness for us to proceed. However, the Umon and the Employer are remmded of their responsibilIty to keep Mr Paleczny mformed It IS hoped that no future omissions Will occur with regard to Mr Paleczny or other people 10 hiS posItion. The Board recogmzes the confusion and dIfficulties that the parties face 10 dealmg with cases such as these and 10 Identlfymg who may be directly affected. However, the parties are remmded that the reqUirements of natural Justice demand that these Issues be resolved before the partIes can expect the Grievance Settlement Board to embark upon the ments of such disputes. We turn now to the substance oftlus aspect of the gnevances before the Board The massive restructunng 10 the Mimstry of Natural Resources had profound effects on admmlstratlOn, operations and mdlvlduals Confusion, frustratIon ~ and deep-seated pam prevailed 10 the spnng of 1996, despite the efforts of many people to ease the Impact of these difficult changes It IS small wonder that the Gnevor was partIcularly frustrated and hurt. He found himself declared surplus despite lus semonty and was gIven Just seven days to choose whether to accept the certamty of a lower classified pOSitIOn or to declme It In the hopes of a vacancy becommg available wltiun a fimte penod of time But the nsk of declInmg the opportumty was that no pOSItIon would become available Given the declaratIOn of so many surpluses, the chances of a vacancy ansmg seemed to him to be extremely remote Therefore, to discover wlthm hours of electmg the lesser position that a possibIhty of a vacancy at hIS own level and claSSIfication may anse wlthm weeks was a shock to the Gnevor Understandably, he - 16 - wondered how and why he was beIng declared surplus at approxImately the same time that a vacancy was about to be created. His frustration IS further compounded by the fact that his displacement was not finalIzed until July, whereas the two vacancies for the 102 positions were approved for fillIng In June Hence, an 102 who was Jumor to the Gnevor but who had kept hImself on the surplus lIst by declImng a displacement was able to be redeployed to his same level, that was Mr Murch. However, the Gnevor was conSidered to be InelIgible for the 102 assignment because of his reluctant electIOn to take the displacement opportumty The questIOn for arbitratIOn IS not whether tlus IS nght or faIr, but whether what occurred was In accordance With the collective agreement. Article 20 5 1 guarantees an employee who has receIved a notice of layoff that slhe will be redeployed to a vacant pOSitIon In the same claSSIficatIon If It IS wlthm 40 kilometers of the current headquarters, the person is mlmmally qualIfied to do the Job and If the appropnate semonty factors are In place (205 l(d)) The Umon qUIte properly concedes that once the Gnevor made hIS election to accept the dIsplacement opportumty, hIS "WIndow of opportumty" for redeployment to another pOSitIOn In lus claSSIfication IS closed off Tlus IS dIctated by ArtIcle 20 4 1 (h) Therefore, the cntlcalIssue to deCIde In thIS case IS whether It should be deemed that a vacancy was available or should have been conSidered available to the Gnevor In the seven-day penod after he received lus notIce of layoff and before he made hiS electIOn under Article 20 4 1 G) Whether a vacancy eXists or not IS a questIOn that has been canvassed by arbitrators before But, no case IS dIrectly on pOInt or IS of partIcular assistance Many of the cases Cited about the reqUIrement to recogmze a vacancy are distIngUIshable because they deal With other aspects of the collective agreement that speCifically reqUIre that a vacancy be recogmzed In situations that do not pertaIn to these Circumstances, such as the long assignment of an unclassified person for a speCific penod of tIme - 17- (ArtIcle 3 5 1) The decIsIon by Vice-ChaIr Low m Union v Ministry of Transportation does offer some assistance m recogmzmg nghts where a posItion appears to be unstaffed at page 4 There may be situatIOns where a vacancy eXists on paper but IS not filled, whether because of lack of funding or because the employer has made a declSlon to reduce the level of service to the pubhc regardless of fundmg avatlable Such CIrcumstances would fall wIthin the employer's nght to determine complement. Further, while the Employer concedes It cannot act fnvolously m dechnmg to fill a potentIal vacancy, the cases support the Employer's nght to weigh alternatives and decIde whether or not to fill a vacancy See Tidewater Oil, supra. ThIS was actually acknowledged by the Umon In an earher dIspute between OPSEU and the Mimstry of TransportatIOn (see Knopf decIsIon, supra), where the Umon agreed on what constItutes a vacancy under the collectIve agreement. At page 5 of the decIsIon It was recorded [The partIes] agree that a vacancy occurs when management deterrrunes that there IS sufficIent work to be done by an employee on a full-time basIs. It must be stressed that the partIes have not started with such an agreement m thts case But that earlIer agreement, coupled with the recogmtlOn by management that the determmatlOn of whether or not to staff a posItion cannot be made on a fnvolous basIs, IS consistent with thiS collective agreement and consistent with accepted labour relatIOns practices Therefore, It IS wlthm management's nghts to determme whether there IS sufficIent work or a need or desire to fill a vacant pOSitIOn when that determmatlon IS - 18 - made on the basIs of objective pnnclples Once that decIsIon IS made, a vacancy under thIs collectIve agreement begins to eXIst. On the facts at hand, management could have decIded In April or May to consIder the 102 posItion m Midhurst as a vacancy There had been a person dOing that work on a tralnmg and development assIgnment. The posItIOn was not posted because of the recent hmng freeze and a deSIre to WIthhold making final determinatIOns about staffing until after the "surplusslng" had been declared. ThIS was done m order to reduce confusIon and m order to manage the budgetary shortfall WIth regard to salanes. In early June, the pOSItIon was deemed critICal to operatIons and receIved approval to be offered as a vacancy HindSIght IS always very clear and suggests that It would have been preferable and benefiCIal to have recogruzed tlus sooner so that the vacancy would have been available for redeployment of surplussed employees on May 16 However, management's reasons for waltmg until June to deCIde whether to conSIder pOSItIOns as vacancIes cannot be saId to be fnvolous or WIthout objective baSIS. The deCISIon was based on a number of legItImate factors mcludmg (a) Respect for the hmng freeze (b) Salary budget deficIt management (c) A deSire to Implement the restructunng plan before commlttmg staff to new assignments (d) Adherence to the estabhshed practIce of receiving ASSIstant Deputy Miruster approval before deeming a posItIon vacant and available for filhng. - 19 - All these were objectively Justifiable given the conditions prevaihng at the time They do not vIOlate the spmt or language of Article 20 9 1 Therefore, It must be concluded that under thiS collective agreement, the 102 Midhurst posItIon cannot be recogmzed as a "vacancy" for purposes of ArtIcle 20 5 until the ASSIstant Deputy Mimster approved It for filhng. Accordmgly, It cannot be deemed available for the Gnevor 10 the seven days after the declaratIOn of surplus on May 16, 1996 For these reasons, the Gnevor's deSIre to have the pOSitIOn deemed to have been available to hIm fails Because of thIs finding, the questIon as to whether or not he should have filled out the employee portfolio and be conSidered for pOSItions outSide the 40 kilometre radIUS need not be detemuned. ThIs leaves unresolved the question of the gnevances deahng With whether the Grlevor should have been granted the lateral transfer or whether or not there were flaws 10 the competItIon for the Midhurst posItIon. 1 retam jUnSdIctlOn to deal With these matters should the parties reqUIre any further assistance DATED at Toronto, Ontano tills 12th day of June, 1997 Paula Kno~f - Vice-ChaIr