Loading...
HomeMy WebLinkAbout1998-0263.Union.00-07-07 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L "()NTARW GRIEVANCE COMMISSION DE . . 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 # 263/98 OPSEU # 98U021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Uillon (Uillon Gnevance) GIievor - and - The Crown III RIght of Ontano (Ontano Clean Water Agenc,) Employer BEFORE Ranm Hammer Abramsk" Vice ChaIr FOR THE Ed Holmes GRIEVOR Counsel R, der Wnght, BlaIr & Do, Ie Barnsters & Barnsters FOR THE Robert LIttle EMPLOYER Counsel Hicks, Morle, Hamilton, Stewart, Stone Barnsters & SolICItors HEARING Juh 22, 23 1999 Ma, 24 2000 AWARD There are SIX IndIVIdual gnevances and one Umon gnevance In thIS matter each allegIng that the Employer the Ontano Clean Water Agency (OCW A) Improperly demed the gnevors benefits under ArtIcle 20 of the collectIve agreement. SpecIfically It IS alleged that OCW A Improperly demed the gnevors pay In lIeu of notIce under ArtIcle 2021 The relevant provIsIOns of ArtIcle 20 Employment StabIlIty state as follows 20.2 NOTICE AND PAY IN LIEU 2021 An employee IdentIfied as surplus shall receIve SIX (6) months notIce of lay-off or wIth mutual consent, an employee may resIgn and receIve eqUIvalent pay In lIeu of notIce Pay In lIeu of notIce for the balance of the notIce penod shall only be granted where the Employer determInes that operatIOnal reqUIrements permIt an employee's eXIt from the workplace pnor to the expIratIOn of SIX (6) months notIce 20 2.2 The notIce penod wIll begIn when the employee receIves officIal wntten notIce CopIes of all such notIces hall be provIded to the Management Board Secretanat and to the Umon. FACTS OCW A, whIch IS part of the Mimstry of EnvIronment, operates water treatment and sewage treatment plants under contract wIth vanous mumcIpalItIes whIch own the treatment plants OCW A competes wIth pnvate sector compames to provIde these servIces to the mumcIpalItIes 2 For a number of years OCW A provIded water and sewage treatment servIces for the MumcIpalIty of HaldImand-Norfolk. In March 1997 the MumcIpalIty put out a tender for bIds for sewage servIce, begInmng January 1 1998 In late July the EngIneenng CommIttee selected a competItor ProfessIOnal ServIces Group (PSG), as the lIkely WInner although a number of condItIOns set out In the Request for Proposals had not yet been fulfilled by PSG AccordIng to Rick Connell, OperatIOns Manager at the SImcoe-Namcoke facIlIty OCW A was hopeful It could retaIn the contract and began a senous lobbYIng effort to sway the HaldImand-Norfolk CouncIl to overturn the ImtIaI selectIOn of PSG However In September or October 1997 the CouncIl, by a one-vote margIn, awarded the contract to PSG Even after thIS, OCW A remaIned hopeful that PSG would not be able to provIde a sufficIent operatIOnal plan, but on December 11 1997 OCW A was Informed that PSG had a sufficIent number of qualIfied employees, IncludIng OCW A employees, to operate the plants, effectIve January 1 1998 On December 31 1997 management met wIth all of the affected OCW A employees to Inform them officIally that OCW A had lost the contract wIth HaldImand- Norfolk and that they would be declared surplus, effectIve the same date, wIth a layoff date of July 1 1998 Each employee was gIven a surplus letter and a letter from Mona Kronberg, Vice-PresIdent Human Resources, the purpose of whIch was to provIde "a summary of the entItlements and optIOns avaIlable to you In accordance wIth ArtIcle 20 of the collectIve agreement." For each gnevor the letter stated that "[a]t the tIme of your notIce, there IS no vacancy avaIlable wIthIn 40 km to whIch you may be matched pursuant to ArtIcle 20 5" The letter went on to state, In part, as follows 3 However the folloWIng optIOns remaIn avaIlable to you 1 As a surplus employee you shall receIve SIX (6) months notIce of lay-off or wIth mutual consent, you may resIgn and receIve eqUIvalent pay In lIeu of notIce Pay In lIeu for the balance of the notIce penod shall only be granted where the Employer determInes that operatIOnal reqUIrements permIt an employee's eXIt from the workplace pnor to the expIratIOn of the SIX (6) month notIce If approved, you wIll receIve payment for the balance of your notIce penod, pus the greater of enhanced severance pay (paragraph 4 of AppendIx 9*) or separatIOn allowance (Art. 203 1 or Art. 203.2)- and termInatIOn pay (ArtIcle 53) In addItIOn, If thIS optIOn IS approved by the Employer you wIll forfeIt all nghts under the collectIve agreement, except for the nght to apply to restncted competItIOns for a penod extendIng twenty-four (24) months after the lay-off date of July 1 1998 Please note that it is DeW A s position that you yt, ill yt, ork the six month notice period or until operational requirements dictate (emphasIs added) e Employees were also Informed, In the letter of theIr nght, pursuant to ArtIcle 20 4 to dIsplace an employee wIthIn 40 kIlometres, or faIlIng a match, "you may request to dIsplace an employee outsIde of forty (40) kIlometres of your present headquarters (there are no relocatIOn expenses paid for an employee acceptIng a dIsplacement beyond forty (40) kIlometres)" It was also noted that "If dIsplacement IS offered and rejected, you wIll contInue to have redeployment nghts under ArtIcle 205 untIl your lay-off date" Employees were not told at the December 31 1997 meetIng what theIr dIsplacement opportumty would be SInce, for some, It mIght change due to decIsIOns made by more semor employees, voluntary eXIts and so forth. Instead, employees were Informed In the letter that "you wIll be advIsed no later than January 7 1998 at 430 p.m If there IS an opportumty to dIsplace another employee" Employees were advIsed 4 that they could contact theIr "supervIsor or Human Resources AdvIsor Jim Macdonald, If you have any questIOns about thIS letter or your personal sItuatIOn." EarlIer In eIther late November or early December each employee met wIth Labour RelatIOns AdvIsor Monty Sell to reVIew potentIal dIsplacements For all of the gnevors, except the most semor one, the potentIal dIsplacements IdentIfied were not wIthIn 40 kIlometres and were a sIgmficant dIstance away requlflng relocatIOn In most cases At the December 31 1997 meetIng, employees were told that If they wIshed to contInue wIth OCW A they were to report on January 2, 1998 at the Namcoke facIlIty a water treatment plant, untIl further notIce, and that there would be no pay In lIeu of notIce One of the gnevors, John Topp asked what "operatIOnal reqUIrements" reqUIred them to work the notIce penod sInce there was no work avaIlable at the sewage plants He was told by Sharon Gray Vice-PresIdent, Central Area, that there were operatIOnal reqUIrements related to theIr regular Jobs at Namcoke, that It was not paIntIng or cleamng Jobs or make-work projects, that there would be meamngful work relevant to theIr posItIOn. The meetIng, by all accounts, was an emotIOnal one OperatIOns Manager RICk Connell explaIned that Namcoke was the central hub and the only facIlIty left In the HaldImand-Norfolk area and It was decIded that It would be best for the surplus employees, fourteen In all, to report there, where they would be gIven meamngful, temporary work untIl It could be determIned "who would bump 5 who" Namcoke would be "used as a temporary locatIOn for bodIes to go to" Only eIght employees reported to Namcoke Some dId maIntenance work such as cleamng wet wells and eqUIpment, one Job shadowed, one cleaned up files, one dId manual work, one took care of complIance records It was Connell's VIew that employees were not offered pay In lIeu "because each of the most semor employees, the gnevors, had posItIOns to go to because of theIr expenence and knowledge they were valuable employees The Idea was to keep expenenced personnel" On cross-eXamInatIOn, he stated that the work at Namcoke was not "make work" but "work that had to be done" When asked If thIS work could have been done by regular Namcoke staff, he responded "sure" He also acknowledged that Namcoke Itself had, at the same tIme, surplused two employees out of a total complement (for a three-shIft operatIOn) of eIght employees For the employees who reported to Namcoke on January 2, 1998 the work avaIlable for them, except for one employee, ceased at the end of January Mr Connell made that decIsIOn IS mId to late January The work for the remaInIng employee ended In mId-February All of these employees were gIven pay In lIeu of notIce for the remaInder of the SIX month notIce penod. All of the gnevors accepted Jobs wIth PSG Although, In the VIew of the gnevors, theIr acceptance was contIngent upon PSG actually havIng Jobs for them on January 1 the documentary eVIdence clearly establIshes PSG made firm offers of employment effectIve January 1 1998 whIch were then accepted by the gnevors, IndIVIdually on eIther December 10 or December 11 1997 Except for one of the gnevors who 6 Informed OCW A management of hIS acceptance of the PSG Job offer the gnevors' acceptance of the PSG Jobs was not conveyed to OCW A untIl they resIgned ImmedIately after the December 31 1997 meetIng. All of the gnevors commenced workIng for PSG on or about January 1 1998 None of the gnevors, except for Topp testIfied that they requested pay In lIeu at the December 31 meetIng or thereafter The Employer dIsputed that Topp had asked management about thIS All of the gnevors receIved termInatIOn pay under ArtIcle 53 severance pay and enhanced severance pay The only benefit In dIspute IS pay In lIeu of notIce under ArtIcle 20.2 1 The Issue of pay In lIeu had been raised by the Umon wIth OCW A pnor to December 31 1997 On November 28 1997 Sandra Harper Job Secunty Officer wIth OPSEU wrote to Mr Sell, and In that letter raised, among other thIngs, "OCW A's decIsIOn to wIthhold mutual consent for paY-In-lIeu." In pertInent part, the letter states as follows I would apprecIate detaIled InformatIOn on OCW A's decIsIOn to wIthhold mutual consent for paY-In-lIeu. OCW A's defimtIOn of "operatIOnal reqUIrements" as It applIes wIth respect to ArtIcle 20.2 1 would be apprecIated. PartIcularly In lIght of the fact that the IndIVIduals' workplaces wIll no longer be operated by OCW A effectIve 31 December 1997 and that all workplaces wIthIn a 40 km radIUs have undergone recent dOWnSIZIng themselves OCW A dId not respond to thIS letter although the Issue of pay In lIeu was dIscussed at the Employee RelatIOns CommIttee At that meetIng, the Employer explaIned that It needed the employees, It had work for them to do and the Umon dIsagreed SInce the plants would no longer be operated by OCW A and there were layoffs In the neIghbonng plants 7 AccordIng to Labour RelatIOns AdvIsor Sell, OCW A dId not "predetermIne" ItS operatIOnal reqUIrements In advance of the surplus notIce and could not untIl It knew what semor employees would do regardIng dIsplacement. He acknowledged, on cross- eXamInatIOn, that as of January 1 1998 there were no operatIOnal reqUIrements for the gnevors at the plants now operated by PSG He confirmed that at the same tIme the surplus employees were beIng told to report to Namcoke, two Namcoke employees were beIng laid off ARGUMENTS OF THE PARTIES The Umon contends that the Employer's decIsIOn that "operatIOnal reqUIrements" dId not permIt the gnevors' eXIt from the workplace pnor to the expIratIOn of the SIX months notIce was unreasonable and cannot be allowed to stand. It submIts that the eVIdence was clear that the Employer dId not have work for the gnevors at "the workplace" as of January 1 1998 and It dId not need them at Namcoke The Umon argues that ArtIcle 20 2 1 gIves employees the nght to SIX months notIce of layoff or wIth mutual consent, pay In lIeu of that notIce It asserts that the Employer's consent cannot be unreasonably wIthheld and that consent must be gIven If operatIOnal reqUIrements permIt the employee's early eXIt from the workplace The Umon submIts that thIS provIsIOn places a posItIve oblIgatIOn on the Employer to consIder If operatIOnal reqUIrements permIt early eXIt of an IndIVIdual employee Instead, It contends that the Employer applIed a blanket, ngId polIcy to reqUIre all 8 surplus employees to work theIr notIce penod and that there was no genUIne exerCIse of dIscretIOn. In support of Its posItIOn, the Umon cItes to Re Elesie and the Crown in Right of Ontario (MinistlY of Health) (1980) 27 LAC (2d) 282 (SWIntol}! OPSEU (Kuyntjes) and MinistlY of Transportation and Communications (1985) GSB No 513/84 (Venty) The Umon further submIts that the onus IS on the employer to establIsh that "operatIng reqUIrements" precluded the early eXIt of the gnevors and that real proof IS reqUIred, not Just the employer's claim of operatIng needs In support, the Umon relIes on Re Intercraft Industries of Canada, Ltd and United Brotherhood of Cmpenters and Joiners of America, Local 2679 (1985) 22 L.AC (3d) 281 (Solomatenko) Re Government of Nova Scotia and Nova Scotia Government Employees Association (1983), 11 L.AC (3d) 181 (ChnstIe) It submIts that the Employer faIled to meet ItS onus. The Umon also contends that the gnevors were not reqUIred to accept the dIsplacement opportumtIes offered by the Employer and that If an employee declInes the dIsplacement, he or she IS stIll entItled to receIve all contractual benefits, IncludIng pay In lIeu. It submIts that the "workplace" under ArtIcle 20.2 1 IS personal to the employee and In thIS case, the gnevor's "workplace" ceased to eXIst as of January 1 1998 It argues that the Employer could have gIven notIce In July but chose not to Instead, It gave notIce on December 31 1997 and must gIve SIX months notIce to the gnevors or the eqUIvalent pay In lIeu. 9 The Employer ImtIally contends that the Board has no JunsdIctIOn to reVIew Its deCISIOn to wIthhold consent for pay In lIeu. It argues that Just as an employee may wIthhold hIS consent, so may the Employer and neIther decIsIOn IS revIewable by a board of arbItratIOn. To rule otherwIse, It submIts, would potentIally force "consent" and effectIvely read the word out of the collectIve agreement. It argues that the second sentence of ArtIcle 20.2 1 does not change the reqUIrement of "consent" If the decIsIOn IS revIewable, however the Employer urges the Board to adopt a "good faith" standard, rather than a "reasonableness" standard, and to defer to the Employer's determInatIOn of operatIOnal reqUIrements as long as It had a bona fide reason for the decIsIOn. It submIts that as long as the determInatIOn that It had work for the employees to do was not arbItrary dISCnmInatory or In bad faith, the determInatIOn should not be second-guessed by the Board. In support of ItS contentIOn, the Employer cItes to Re Artubus Club and Food & Service Workers of Canada (1986),24 L.AC (3d) 241 (MacIntyre) Royal Canadian Mint and Public Service Alliance of Canada (St. Vincent Grievance)[1997] C.L AD No 436 Re Government of Nova Scotia and Nova Scotia Government Employees Association, supra The Employer asserts that the "good faith" standard IS appropnate sInce the Employer should not lIghtly be reqUIred to pay SIX months pay for no work when there IS work reqUIred to be done On the facts, the Employer contends that It determIned, In good faith, that It had legItImate temporary work for the surplus employees to perform at Namcoke and then 10 useful work wIth the Employer through dIsplacement. It submIts that It had "operatIOnal reqUIrements" for the gnevors dunng the notIce penod and that It appropnately wIthheld Its consent for pay In lIeu. In the Employer's submIssIOn, ArtIcle 20.2 1 provIdes for pay In lIeu only where the Employer determInes that there IS no meanIngful work for the employee dunng the notIce penod, an employee need not SIt useless dunng the notIce penod and may request pay In lIeu. The Employer however It submIts, may wIthhold ItS consent If It has work for the employee In thIS case, It argues, the gnevors were semor expenenced, valuable employees and the Employer had work for them to do The Employer submIts that the words "the workplace" In ArtIcle 20.2 1 IS not personal to the employee and that as long as there IS meamngful work anywhere, the Employer IS entItled to wIthhold ItS consent to pay In lIeu. It assert that where the partIes wanted to refer to the employee's own workplace, they used the term "work locatIOn" In support of ItS contentIOn, the Employer cItes to Re C W CarlY Ltd and United Steehwrkers of America, Local 5575 (1994),42 L.AC (4th) 237 (Power) The Employer also pOInts out that the gnevors never requested pay In lIeu, whIch IS a prereqUIsIte No one asked for It and Instead, they resIgned Immediately after the December 31 1997 meetIng. Under these cIrcumstances, the Employer argues that the Umon cannot assert that a more thorough, IndIVIdual assessment was reqUIred. By faIlIng to ask, the gnevors depnved the Employer of that opportumty 11 The Employer further asserts that the gnevors were not avaIlable to work as of January 1 1998 and that ArtIcle 20 1 1 contemplates that the surplus employee be avaIlable to work. Yet, It submIts, at the tIme notIce of layoff was officIally Issued on December 31 1997 all of the gnevors had already effectIvely resIgned from OCW A. It contends that even though the resIgnatIOns had not been commumcated they were stIll effectIve, CItIng Re Anchor Cap and Closure Corporation of Canada, Ltd and United Electrical, Radio & Machine Workers of America, Local 512 (l949)(FInkelman) As a result, the Employer contends that no monetary remedy should flow should a vIOlatIOn be found SInce the gnevors were not avaIlable for work. DECISION 1 Is the Employer's Decision Reviewable? Based upon the language of ArtIcle 20.2 as a whole, I conclude that the employer's determInatIOn that operatIOnal reqUIrements do not permIt an employee's early eXIt from the workplace, and thus ItS decIsIOn to wIthhold "consent" IS subject to lImIted reVIew by the Board. ArtIcle 20.2 1 states as follows An employee IdentIfied as surplus shall receIve SIX (6) months notIce of lay-off or wIth mutual consent, an employee may resIgn and receIve eqUIvalent pay In lIeu of notIce Pay In lIeu of notIce for the balance of the notIce penod shall only be granted where the Employer determInes that operatIOnal reqUIrements permIt an employee's eXIt from the workplace pnor to the expIratIOn of SIX (6) months notIce ThIS provIsIOn gIves a surplus employee the nght to SIX months notIce of layoff, or wIth mutual consent, pay In lIeu of notIce That thIS IS a "nght" of the employee IS clear from the use of the mandatory words "shall receIve" In thIS case, the gnevors' nght to SIX 12 months notIce of layoff, or wIth mutual consent, pay In lIeu of notIce, began on December 31 1997 the date they were officIally notIfied of the layoff The Employer asserts, however that the use of the word "consent" means that the determInatIOn of operatIOnal reqUIrements IS WIthIn the sole dIscretIOn of the Employer and IS not revIewable The board, In ItS VIew cannot force "consent" and to do so would essentIally read the word out of the agreement. If the first sentence of ArtIcle 20.2 1 stood alone, the questIOn of arbItral reVIew of the Employer's "consent" mIght, arguably be more questIOnable But the first sentence does not stand alone The next sentence states "Pay In lIeu of notIce for the balance of the notIce penod shall only be granted where the Employer determInes that operatIOnal reqUIrements permIt an employee's eXIt from the workplace pnor to the expIratIOn of SIX (6) months notIce" The second sentence, In essence, defines consent. It clanfies that pay In lIeu (i.e consent for pay In lIeu) shall only be granted where the Employer determInes that operatIOnal reqUIrements permIt an employees eXIt from the workplace pnor to the expIratIOn of the notIce penod. For thIS reason, the word "consent" In the first sentence of ArtIcle 20.2 1 does not vest unlImIted dIscretIOn In the Employer and does not remove the decIsIOn from arbItral reVIew In so rulIng, I note that several other provIsIOns In ArtIcle 20 provIde for "mutual consent" such as 205.2 (redeployment beyond 40 km In the mInIstry) and 2054 (redeployment beyond 40 km In any mImstry) These provIsIOns pertaIn to Important 13 redeployment nghts and the wIthholdIng of consent by the employer would clearly be subject to reVIew The fact that It IS the Employer who determInes whether " operatIOnal reqUIrements" permIt the early eXIt of an employee also does not remove the determInatIOn from arbItral reVIew In Re Elsie and the Crown in Right of Ontario (Ministry of Health), 27 LAC (2d) 283 then Vice-Chair SWInton concluded that a provIsIOn whIch stated that "[a] Deputy Mimster or hIS desIgnee may grant an employee leave-of-absence wIth pay upon specIal or compassIOnate grounds" was subject to arbItral reVIew She stated at p 285 "WhIle the wordIng appears to confer a broad dIscretIOn upon the employer In decIdIng whether to grant specIal or compassIOnate leave, It IS well establIshed that such dIscretIOn must be exercIsed reasonably and non- dIscnmInatonly" Accord, Re Young and the Crown in Right of Ontario (MinistlY of Community and Social Services)(1979), 24 L.AC (2d) 145 (Vice-Chair SWInton), quoted In OPSEU (Kuyntjes) and Ministry of Transportation and Communications (1985) GSB No 513/84 (Venty) The Vice-Chair In Young supra, In decIdIng that the employer's decIsIOn not to grant an employee "specIal or compassIOnate leave" was revIewable, stated as follows at pp 147-148 The gnevor IS arguIng that she has been unreasonably demed leave of absence under art. 29 1 WhIle that artIcle IS framed In a way whIch appears to gIve management an unlImIted dIscretIOn In the grantIng or demal of leaves of absence, In fact that dIscretIOn must be exercIsed In a non-dISCnmInatory and reasonable manner An arbItratIOn board, In subsequently asseSSIng what the employer has done In reachIng ItS deCIsIOn, then plays a restncted role It must decIde whether the employer has acted reasonably and wIthout dISCnmInatIOn and has turned ItS mInd to the ments of the partIcular request. If satIsfied that 14 these cntena have been met, the board must deny the gnevance, even If It dIsagrees wIth the result reached by the employer or If It mIght have reached a decIsIOn other than that reached by the employer The board's concern IS the reasonableness of the decIsIOn, not ItS correctness In the board's VIew Such an approach IS the proper one to adopt In sItuatIOns such as leave of absence cases, where the collectIve agreement gIves the employer a broad dIscretIOn and where the board has less famIlIanty than has the employer wIth the needs of the work place I conclude that thIS lImIted standard of reVIew IS equally applIcable to reVIew of the Employer's determInatIOn of "operatIOnal reqUIrements" under ArtIcle 202 1 Further upon reVIew of the cases cIted by the Employer I find very lIttle practIcal dIfference between thIS standard and the standard set out In Re Artubus Club and Food & Service Workers of Canada, supra and Re Royal Canadian Mint and Public Service Alliance of Canada (St. ~Tincent Grievance) supra In Re Artubus Club a semor employee gneved that she was entItled to be placed exclusIvely on the day ShIft pursuant to a provIsIOn whIch read " Subject to the operatIng needs of the busIness, management wIll consIder semor employees wIth respect to assIgnment of ShIftS and hours" The board, at p 247 found that the employer "supported those [operatIng] 'needs' by ItS eVIdence and argument that the ShIft rotatIOn provIded a consIstent level of expenence and famIlIanty wIth the work of the two shIfts" It then stated that the rotatIOn was "not vItal to the contInued eXIstence of the employer's busIness" but "that cannot be the defimtIOn of 'needs" It concluded at p 248 So long as we are satIsfied that the employer's decIsIOn was based on a bona fide busIness reason, we do not thInk It IS for thIS board to Impose ItS own VIew about the wIsdom of that reason [I]n the present case, the eVIdence satIsfies us that the new manager made hIS decIsIOn on a 'busIness needs' basIs 15 In Re Royal Canadian Mint, supra, a sImIlar Issue arose In that case, the employer had determIned that "operatIOnal reqUIrements" reqUIred the gnevors to work the evemng or mIdmght shIft. The board held that "[o]n balance the eVIdence satIsfies us that the Mint IS JustIfied In thInkIng that there IS a benefit to havIng the set-up operators rotate through the day shIft as evenly and eqUItably as possible" It stated at pp 40-41 We do not thInk "operatIOnal reqUIrements" should be construed narrowly A fair and reasonable constructIOn of those words Include reqUIrements that are consIstent WIth the optImal level and functIOmng of the Mint's operatIOns, as reasonably and fairly determIned by the Mint Itself "OperatIOnal reqUIrements permIt" when the Mint, actIng reasonably and wIth regard to ItS legItImate busIness Interests, so determInes that they do In each case, the board of arbItratIOn revIewed management's determInatIOn to ensure that It acted "reasonably and wIth regard to ItS legItImate busIness Interests" That It acted "reasonably and wIthout dISCnmInatIOn and has turned ItS mInd to the ments of the partIcular request." That It made ItS decIsIOn on a bona fide "busIness needs" basIs In each case, the board revIewed the eVIdence presented to ensure that the employer's assessment of ItS busIness needs was bona fide and reasonable, not whether It was WIse or correct. Further the Employer IS correct that management IS In the best posItIOn to determIne operatIOnal reqUIrements As Vice-Chair SWInton stated In Young supra,"the board has less famIlIanty than has the employer wIth the needs of the work place" LIkewIse, as the board held In Re Government of Nova Scotia and Nova Scotia Government Employees Association supra at p 91 In reVIeWIng the employer's decIsIOn 16 that "operatIOnal reqUIrements" dId not permIt an employee from takIng a specIal leave wIthout pay An arbItrator should gIve very consIderable weIght to management's assessment of whether or not operatIOnal reqUIrements permIt specIal leave because management IS In by far the best posItIOn to make that assessment, but In the end the collectIve agreement reqUIres the arbItrator not management, to decIde the matter Further In my VIew under ArtIcle 20.2 1 the norm IS that employees wIll work the notIce penod. As long as there IS meanIngful work for an employee to do the Employer may reqUIre the employee to work the notIce penod. But where there IS no meamngful work and operatIOnal reqUIrements permIt an employee's early eXIt from the workplace pnor to the end of the notIce penod, the employee may resIgn and receIve eqUIvalent pay In lIeu of notIce 2. The Determination of Operational Requirements The onus of establIshIng that "operatIOnal reqUIrements" do not permIt an employee's eXIt from the workplace pnor to the expIratIOn of the SIX months notIce IS on the employer As stated In Re Government of Nova Scotia, supra at p 91 "It would not make sense to reqUIre the umon or the employee to prove affirmatIvely that operatIOnal reqUIrements dId permIt specIal leave because It IS the employer that has full access to InfOrmatIOn on operatIOnal reqUIrements " Accord, Re Intercraft Industries of Canada, Ltd and United Brotherhood of Cmpenters and Joiners of America, Local 2679 supra. The same IS true here Only the Employer has full knowledge of and access to ItS operatIOnal reqUIrements 17 There IS no dIspute that the Employer dId not have "operatIOnal reqUIrements" for the gnevors at the plants at whIch they worked beyond December 31 1997 Instead, the Employer asserted that It had operatIOnal reqUIrements for the gnevors on two bases FIrst, It had meamngful temporary work at Namcoke untIl It could be determIned whIch employees would exerCIse theIr dIsplacement nghts Second, all of the gnevors, because of theIr semonty had dIsplacement opportumtIes and thus had work wIth OCW A, although not In the HaldImand-Norfolk area. NeIther of these contentIOns can be accepted. Under the Employer's approach, "the workplace" under ArtIcle 20.2 1 IS OCW A as a whole As long as the employee has a dIsplacement opportumty wIth OCW A, "operatIOnal reqUIrements" do not permIt the early eXIt of the employee That contentIOn IS not supportable for two reasons FIrst, the Employer's argument Improperly tIes an employee's dIsplacement nghts under ArtIcle 204 wIth the employee's nght to notIce of layoff under ArtIcle 20.2 The two nghts are separate and dIStInCt. Under ArtIcle 20 4 an employee who has receIved notIce of layoff and who has not been assIgned to a vacant posItIOn under ArtIcle 20 5 (whIch IS what occurred wIth the gnevors) has the nght to dIsplace an employee IdentIfied In the manner set out In that artIcle But he or she also has the nght to declIne the dIsplacement. An employee who declInes a dIsplacement opportumty stIll has the nght to SIX months notIce of layoff, or pay In lIeu. The nght to notIce, or the more lImIted nght to pay In lIeu, IS not contIngent on havIng or not havIng a dIsplacement 18 opportumty HavIng a dIsplacement opportumty does not mean that the Employer's "operatIOnal reqUIrements" do not permIt the employee's early eXIt. If that were true, semor employees wIth dIsplacement opportumtIes, no matter how far away or undesIrable, would be depnved of theIr nght to SIX months notIce of layoff or pay In lIeu. Second, the argument Improperly equates "the workplace" under ArtIcle 20.2 1 wIth the Employer's entIre operatIOn. Instead, the words "the workplace" refer to the workplace of the employee IdentIfied as surplus Even though It uses the word "the" rather than "hIS" or "her" before the word "workplace" the workplace" IS personal to the employee Employees, under ArtIcle 20 1.2, are IdentIfied for layoff on a semonty basIs "In an admInIstratIve dIstnct or umt, InstItutIOn or other such work area " Employees performIng IdentIcal work In other locatIOns may not be laid off In thI s case, the gnevors were laid off from the RegIOnal MumcIpalIty of HaldImand-Norfolk. Other employees, due to the loss of other contracts, were laid off from the CorporatIOn of the Town of New Tecumseth and the RegIOnal MumcIpalIty of Waterloo Each constItutes a umt from whIch the employees were laid off It IS that "workplace" whIch must be revIewed to determIne If operatIOnal reqUIrements permIt the eXIt of a surplus employee dunng the notIce penod. The words "pnor to the expIratIOn of SIX months notIce" confirm that "the workplace" IS partIculanzed to the surplus employee SInce the notIce penod starts when "the employee receIves officIal wntten notIce" (emphasIs added) Thus, the notIce 19 penod IS personal to the employee and so IS "the workplace" from whIch the employee IS surplused. I find that the partIes dId not always use the words "word locatIOn" to refer to an IndIVIdual employee's personal "workplace" AccordIngly the determInatIOn that must be made by the Employer under ArtIcle 20.2 1 IS whether operatIOnal reqUIrements at "the workplace" of the surplus employee permIt the employee's early eXIt. The words "the workplace" refer to the workplace from whIch the employee IS beIng surplussed, In thIS case, the RegIOnal MumcIpalIty of Hal dIm and-Norfolk. The eVIdence showed that the plant at Namcoke IS part of the RegIOnal MumcIpalIty of HaldImand Norfolk umt. The Employer asserts that It had meamngful temporary work for the gnevors at Namcoke and thus had "operatIOnal reqUIrements" that dId not permIt theIr early eXIt. Under the facts of thIS case, however I cannot conclude that there was meanIngful work for the gnevors at Namcoke The eVIdence showed that Namcoke, a water treatment plant, was a small operatIOn consIstIng of approxImately eIght employees It was, at the tIme, undergoIng a reductIOn In force of two employees Clearly on the balance of probabIlItIes, It dId not have need for fourteen more employees, some of whom were not lIcensed for such a facIlIty even on a temporary basIs As Mr Connell acknowledged on cross-eXamInatIOn, all of the work performed by the surplus employees who reported to work at Namcoke could have been done by regular Namcoke staff As a result, the conclusIOn IS Inescapable that the work assIgned was "make work" for them SInce all of the work could have been performed by regular staff, there was no bona fide "operatIOnal need" for them at Namcoke 20 Based on the eVIdence presented, there was no legItImate, bona fide busIness need for the gnevors at Namcoke Nor could the Employer properly rely on the fact that the gnevors had dIsplacement opportumtIes I conclude that the Employer's determInatIOn that "operatIOnal reqUIrements" dId not permIt the gnevors' early eXIt from the workplace IS not supported by the eVIdence and that, accordIngly the Employer dId not act reasonably and wIth regard to ItS legItImate busIness Interests when It wIthheld ItS consent for pay In lIeu. 3 Other Arguments The Employer argues that the gnevors made no request for pay In lIeu and thus cannot complaIn that "consent" was wIthheld, or that an IndIVIdual assessment was not made It submIts that a request for pay In lIeu must be made before the benefit may be receIved. WhIle the Employer's contentIOn may be correct In general, under the specIfic facts of thIS case the absence of a request by the gnevors cannot be held agaInst them ThIS IS because the Employer In ItS December 31 1997 letter to each gnevor stated that "It IS OCW A's posItIOn that you wIll work the SIX month notIce penod " In lIght of thIS clear statement, there was no reason for the gnevors to make a request, nor would such an expectatIOn be reasonable The answer had already been provIded. I also cannot accept the Employer's contentIOn that the gnevors resIgned as of December 10 or 11 and that the resIgnatIOn was sImply not commumcated. Although I 21 agree that acceptance of another Job offer IS conduct whIch IS InCOnsIstent WIth remaInIng In OCW A's employ the gnevors new employment dId not take effect ImmedIately They all contInued to work for the Employer untIl December 31 1997 Nor dId the Employer treat the gnevors as havIng resIgned, even In relatIOn to the gnevor who Informed the Employer that he had done so Further all of the gnevors receIved termInatIOn and severance pay benefits to whIch employees who resIgn pnor to notIce of layoff are not entItled. Finally I do not agree wIth the Umon's argument that the Employer's decIsIOn- makIng process IS fundamentally flawed by adherence to a blanket, ngId polIcy rather than IndIVIdual determInatIOns UnlIke requests for specIal leave whIch must be evaluated on the ments of the IndIVIdual request, the Employer may determIne ItS "operatIOnal reqUIrements" on a group basIs The Employer however must turn ItS mInd to the "operatIOnal reqUIrements" at the workplace of the surplus employees 4 Remedy I conclude that the appropnate remedy IS to pay the gnevors SIX months pay In lIeu, plus Interest. The Employer claims that no remedy IS avaIlable because the gnevors were not avaIlable to work for OCW A dunng the notIce penod and all had Jobs the very next day and suffered no monetary loss Under the common law the purpose of notIce IS to provIde employees wIth sufficIent tIme to secure alternatIve employment and any earnIngs receIved from alternatIve 22 employment are offset agaInst momes paid dunng the notIce penod. I am sensItIve to the VIew that awardIng the gnevors SIX months pay In lIeu may be a perceIved as a "wIndfall" SInce they all had Jobs wIth PSG the very next day But what IS at Issue here IS contractual entItlements under a collectIve agreement, not the common law Am cl e 20.2 1 provIdes a surplus employee wIth the nght to SIX months notIce of layoff, or wIth mutual consent, pay In lIeu of notIce ThIS IS a contractual entItlement whIch the Employer dId not provIde to the gnevors Further the partIes could have, but dId not, provIde for repayment of pay In lIeu If the surplus employee obtaIned another Job dunng the notIce penod and thus was no longer avaIlable to work the notIce penod. The only provIsIOn regardIng repayment of pay In lIeu IS ArtIcle 20.2 4 whIch states, In pertInent part, as follows 20 2 4 Where an employee accepts pay In lIeu of notIce and IS reappoInted to a posItIOn In the Ontano PublIc ServIce pnor to the ongInally projected lay-off date, the employee wIll repay to the mImstry a sum of money equal to the amount paid for the penod between the date of re-appoIntment and the ongInal projected lay- off date Only where an employee IS reappoInted to the Ontano publIc servIce dunng the notIce penod IS there a repayment oblIgatIOn. There IS no sImIlar reqUIrement to repay If an employee obtaIns a Job In the pnvate sector The partIes clearly turned theIr mInds to thIS Issue and Imposed a repayment oblIgatIOn only when the surplus employee obtaIns a Job In the publIc servIce In lIght of thIS, the fact that the gnevors were not avaIlable to work for OCW A as of January 1 1998 IS not relevant. Under ArtIcle 20.2 1 the gnevors were entItled to SIX 23 months notIce of layoff or wIth mutual consent, pay In lIeu of notIce If operatIOnal reqUIrements permIt the employee's eXIt from the workplace pnor to the expIratIOn of the notIce penod. The gnevors were provIded notIce on the last day possIble and the eVIdence shows that there were no bona fide operatIOnal reqUIrements for the gnevors In the HaldImand-Norfolk area dunng the notIce penod. AccordIngly they were entItled to SIX months pay In lIeu. CONCLUSION 1 The gnevance IS allowed. 2 The gnevors are to be paid SIX months pay In lIeu at the applIcable rate for theIr posItIOn, plus Interest. 3 I shall remaIn seIzed. Dated at Toronto Ontano thIS ih day of July 2000 fI.1brmtElc RandI Hammer Abramsky Vice Chair 24