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Home My WebLink About1997-1476.Gotera et al.99-12-10 Decision ()NTARI() EMPUJYES DE LA nWR()NVE f'R()WV EMPL()YEES DE L'()NTARI() GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE (416) 326-1396 GSB # 1476/97 1477/97 1478/97 OPSEU #97F019 97F019-2,97F020-1 97F021 97F021-2 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Gotera, RamkIshun, Pawluk, Paul) Gnevor - and - The Crown III RIght of Ontano (Mimstry of Health) Employer BEFORE Owen V Gray Vice Chair FOR THE Micheal Klug GRIEVOR Counsel Tolpuddle Labour CooperatIve FOR THE Roslyn BaIchoo EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING November 22, 1999 DECISION [1] These gnevances were filed m September 1997 around the tIme that the MmIstry decIded to dIvest the Queen Street Mental Health Centre ("QSMHC") The gnevors were then employees at that mstItutIOn_ They had come to be em ployed there at vanous pomts m 1995 1996 and early 1997 as a result of theIr prevIOus posItIOns bemg declared surplus They complam that they should not have been offered or assIgned to the posItIOns at QSMHC that they were offered or assIgned to because at the tImes of the offers and assIgnments there eXIsted a sIgmficant lIkelIhood that those posItIOns would cease to eXIst m the Ontano PublIc ServIce [2] The partIes agree on the followmg facts AGREED STATEMENT OF FACTS l. The followmg gnevances are before thIS Board a. Carolyn Pawluk 97531 583 b. Bmda RamkIshum 97 531 563 (' EmelIta Gotera 97 531 562 d. Rekha Paul 97 531 591 (CollectIvely the gnevors) The gnevances are attached. The partIes agree that these gnevances are to be heard together 2. The gnevors were employees of the (lntano PublIc ServIce MmIstry of Health, (the MmIstry') employed at the Queen Street Mental Health Centre (the QSMHC") pnor to the chvestment of that facIlIty on mlClmght March 8 1998 They are now employees of the Centre for AdchctIOn and Mental Health at the same locatIOn. 3. All of the gnevors were prevIOusly employed elsewhere m the MmIstry prIOr to workmg for the MmIstry at the QSMHC The manner m whIch these gnevors became employed at the QSMHC IS as follows: a. Carolyn Pawluk s posItIon as Data Entry Operator at the MmIstry s OHIP office at 201 CIty Centre m MIssIssauga was declared surplus on June 14, 1995 On July17 1996 she was offered a chsplacement as Umt ReceptIOmst at the QSMHC pursuant to ArtIcle 24.9 1 of the 1992 to 1993 CollectIve Agreement and commenced workmg m that posItIon on July 24, 1996 b. Bmda RamkIsh urn s posItIon as Data Entry ( lperator at the MmIstry s OHIP office at 201 CIty Centre Dnve m MIssIssauga was declared surplus on June 14, 1995 Subsequently she was assIgned to 2 a vacant pmntIOn as a ~rard Clerk at the QSMHC pursuant to ArtIcle 24.61 of the 1992 1993 CollectIve Agreement Ms RamkIshum accepted the pmntIOn and commenced workmg at the QSMHC on or about November 6 1995 EmelIta Gotera s posItIon as a Catalogumg TechnIcIan at the MmIstrv s lIbrary at 5700 Yonge Street, North York, was declared surplus on AprIl 2 1997 ()n AprIl 9 1997 Ms. Gotera was offered a chsplacement mto a posItIon of ClInIcal Records Clerk at the QSMHC pursuant to ArtIcle 20 4 of the 1994 1998 CollectIve Agreement. ()n AprIl 10 1997 Ms. Gotera accepted the posItIon and commenced work at the QSM HC on AprIl 28 1997 d. Rekha Paul's posItIon as Data Entrv Operator at the MmIstrv S office at 2195 Yonge Street, North York was declared surplus on June 14, 1995 On November 28 1995 she was assIgned to a vacancy at the QSMHC as an ()utPatIent Data Entrv Clerk pursuant to ArtIcle 24.6 1 of the 1992 1993 collectIve Agreement On November 29 1995 she accepted the posItIon and commenced employment at the QSMHC on Januarv 2 1996 4. The Health ServIces Restructurmg CommISSIOn (the HSRC") was establIshed m AprIl 1996 to make decIsIOns about hospItal restructurmg and to recommend changes to other aspects of the health care system. An mterIm recommendatIOn was made bv HSRC through the MetropolItan Toronto Health SerVIces Restructurmg Report m March 1997 The final recommendatIOns and report were made m Julv 1997 Both these reports recommended that the provmce merge the QSMHC wIth the Clarke InstItute the AdchctIOn Research FoundatIOn and the Donwood InstItute These recommendatIOns were not accepted bv the MmIster of Health untIl September 19 1997 It IS the posItIon of the UnIon that the MmIstrv was aware bv March 1997 that there was a reasonable possIbIlIty that the QSMHC mIght be chvested m the near future It IS the MmIstrv s posItIon that the recommendatIOns of March 1997 were mterIm. 5. No MmIstrv officIals formally notIfied the grIevors that the QSMHC would be chvested before the grIevors accepted theIr posItIons there It IS the posItIon of the MmIstrv that there was no oblIgatIOn to notIfy because the posItIons were not threatened. 6. ()n Mav 10 1997 a hearmg was held wIth regard to ()PSEU and the Crown s respectIve posItIOn on threatened" posItIons. ThIS was a polIcy grIevance A decIsIOn was rendered on Mav 14, 1997 whIch IS attached. The decIsIOn recommended that the partIes meet as soon as possIble to resolve the Issue. On June 9 1997 Don ChIro Coordmator of CollectIve Bargammg for Management Board SecretarIat wrote to then GrIevance ( )fficer Cameron ~ralker wIth the posItIon whIch would be taken bv Management Board SecretarIat. That letter IS attached. 7 The letter of June 9 1997 referred to m Paragraph 6 above provIded gUIdelmes to the MmIstrv to the effect that employees m receIpt of a chsplacement or redeployment opportunIty wIll be advIsed that the Job they are bemg dIrected to may be subject to change due to chvestment, contractmg out, transfer to the BPS etc. 3 8. The gnevances of Rekha Paul, Bmda RamkIshum, Carolvn Pawluk and EmelIta Gotera were filed m September 1997 WIth the exceptIOn of Ms. Gotera, the gnevors were all surplussed on June 14, 1995 Ms. Gotera was surplussed on Apnl 2, 1997 [3] ArtIcle 24 6 1 of the 1992 93 collectIve agreement provIded for the GB sIgnment of a surplus employee to a "vacancy On the gnevors behalf, umon counsel argues that a purpOSIVe mterpretatIOn of that word would exclude a po sItIOn that was due to be elImmated the day after the assIgnment, and that the same approach should exclude a posItIOn from consIderatIOn If there was a SIg mficant lIkelIhood that It would be elImmated from the publIc serVIce wIthm the next two years after the assIgnment [4] ArtIcle 249 1 of the 1992 93 collectIve agreement, and ArtIcle 204 of the 1994 98 collectIve agreement, gave a surplus employee the nght to dIsplace an other employee "m the same mmIstry On the gnevors behalf, umon counsel argues that a purpOSIVe mterpretatIOn of those words would lIkewIse exclude an employee whose posItIOn IS due to be elImmated the day after the assIgnment, and that the same approach should exclude an employee If there was a sIgmfi cant lIkelIhood that the employee S posItIOn would be elImmated from the publIc serVIce m the next two years after the assIgnment [5] Employer counsel argues that the facts do not support a conclusIOn that when the gnevors became employed at QSMHC there was a sIgmficant lIkelI hood that It would be dIVested In any event, she argues the relevant collectIve agreement prOVISIOns dId not have the meamng and effect contended for by the umon, and the employer dId not breach them when posItIOns at QSMHC were offered or assIgned to the gnevors Decision [6] At one pomt the employer had a polIcy that posItIOns mto whIch surplus employees could dIsplace under ArtIcle 20 4 of the 1994 98 collectIve agreement would not mclude "threatened posItIOns Under thIS polIcy a posItIOn was "threatened for purposes of determmmg the bumpmg nghts of a partIcular sur 4 plus employee If the mmIstry mtended to gIVe notIce of lay-off to the employee then m that posItIOn before the surplus employee S ongmallay-off date and had gIVen notIce of that mtentIOn to the umon through the ERC The umon chal lenged that polIcy m a polIcy gnevance dated January 16 1997 It argued that "posItIOn m ArtIcle 20 4 meant any posItIOn, no matter how "threatened It was [7] In the May 14 1997 decIsIOn referred to m paragraph 6 of the agreed statement of facts (GSB FIle #2670/96) VIce ChaIr Roberts found that the extent to whIch a lImItatIOn on bumpmg mIght be ImplIed from the language of the col lectIve agreement would depend on the answer to another dIspute that the par tIes had about bumpmg nghts, a dIspute that they had not put before Vice-ChaIr Roberts He recommended that the partIes meet to negotIate about the standard to be applIed m determmmg whether a posItIOn should be unavaIlable for bumpmg, and remamed seIsed wIth the gnevance As I understand It, the par tIes dId not subsequently reach agreement on any such standard, and m June 1997 the employer abandoned ItS polIcy m so far as It treated "threatened pOSI tIons as unavaIlable for bumpmg [8] The argument made here by the umon IS more tenuous than the one that the employer made before Vice ChaIr Roberts and later abandoned None of the posItIOns mto whIch the gnevors bumped or were assIgned was "threatened m the sense the employer used that term before June 1997 none of those posItIOns was one whIch the MmIstry had already decIded to elImmate from the publIc serVIce when a gnevor was assIgned to or bumped mto It Even "sIgmficant lIke lIhood were the appropnate test, whIch I do not accept, I could not conclude from the agreed facts that there was a sIgmficant lIkelIhood of elImmatIOn of theIr new Jobs from the publIc serVIce when gnevors RamkIshum, Pawluk and Paul first became employed at QSMHC m 1995 and early 1996 [9] WhIle there was some lIkelIhood of dIvestment when Ms Gotera became employed at QSMHC m Apnl 1997 the language of the relevant collectIve agreement sImply does not support the proposItIOn that that prospect excluded a 5 posItIOn there from consIderatIOn under ArtIcle 20 4 of the 1994 98 agreement There may be some CIrcumstances m whIch the firmness of the employer's mten tIons at a partIcular tIme concermng the Immanent ehmmatIOn of a Job as mIght lead to the conclusIOn that that Job was not a borw fide "posItIOn at that tIme for purposes of the redeployment prOVISIOns of the relevant collectIve agreement The CIrcumstances m whIch the gnevors became employees of QSMHC do not The posItIOns they took up were real ones at the tIme There was no breach of the apphcable collectIve agreement m the case of any gnevor These gnevances are therefore dIsmIssed Dated at Toronto thIS 10th day of December 1999 ~" ~ , ',- ~ I ~ _ _ .,., _ Owen V Gray VIce ChaIr 6