Loading...
HomeMy WebLinkAbout1998-0527.Stiver.99-10-04 Decision o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARlO GRIEVANCE COMMISSION DE -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB # 0527/98 OPSEU # 98B33 7 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GmEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc SerVIce Employees Umon (StIver) Grievor - and - The Crown III RIght of Ontano (Mimstry of Natural Resources) Employer BEFORE RIchard M Brown Vice ChaIr FOR THE Kn stIll A. Ell ot GmEVOR Counsel ElIot, SmIth Barnsters & SolIcItors FOR THE Lucy SIraco EMPLOYER Counsel Legal ServIces Branch Management Board Secretanat HEARING September 28 1999 Robert StIver contends he was Improperly demed a lateral transfer under artIcle 6 6 1 of the collectIve agreement WhIch states WIth the agreement of the Umon, the employee, and the Employer, an employee may be assIgned to a vacancy where (a) the vacant posItIOn IS IdentIcal to the posItIOn occupIed by the employee, and (b) the vacant posItIOn IS In the same mInIstry as the posItIOn occupIed by the employee I The partIes provIded the folloWIng agreed statement of facts 1 The Gnevor, Robert StIver, was employed as a Resource TechnIcIan 4, ConservatIOn Officer ("CO") In the Bracebndge Area Office, Parry Sound DIstnct. 2 An IdentIcal posItIOn became vacant In the Peterborough DIstnct due to the retIrement of DennIS Gagne on December 31, 1997 3 The Gnevor submItted a Lateral Transfer Request for a transfer to a CO posItIOn In the Peterborough DIstnct. ThIS Request, dated May 22, 1997, was provIded, as reqUIred, to the DIStrICt Manager of the Parry Sound DIStrICt office, R. Gnffiths ReceIpt was acknowledged by Mr Gnffiths on May 27,1997 4 Two other employees, Mark Russell and Jeff BendIg, also made Lateral Transfer Requests for transfers to a CO posItIOn In the Peterborough DIstnct. These requests were dated September 30, 1997 and December 18, 1996 respectIvely 2 5 The relatIve Contmuous ServIce Dates of the three mdIvIduals who made Lateral Transfer Requests to a CO posItIOn m the Peterborough DIstnct are the Gnevor (Robert StIver) September 1, 1975 Mark Russell July 7, 1986 Jeff BendIg March 13, 1989 6 On May 22, 1997, the basIs for the gnevor's transfer request was the relocatIOn of ills wIfe, also a MImstry employee from the Bracebndge Area Office to Peterborough. On November 20, 1997, the Gnevor also mdIcated that he had an agmg parent wIth poor health m the Peterborough area and that on October 1, 1997, the gnevor and hIS wIfe had moved to Baiheboro so that the gnevor was now commutmg daily from Baiheboro to ills Job sIte 7 The employer forwarded the three lateral transfer requests by couner to the Job Secunty Umt at OPSEU head office on March 12, 1998 They were dehvered to OPSEU's receptIOn at 100 Lesmill Road on March 13, 1998 8 When no response was receIved from OPSEU's Job Secunty Officer, Ms Sandra Harper, by March 26, 1998, Ms Sue MacIntyre, a Human Resources Consultant of the employer called Ms Harper Although delIvered to receptIOn at OPSEU head office on March 13, 1998, Ms Harper advIsed Ms MacIntyre, by VOIce mail, that she had not receIved the package 9 Ms MacIntyre re-sent the matenal by fax to Sandra Harper on Fnday, March 27, 1998 Ms Harper confirmed receIpt of the matenal on March 27, 1998 by vOIcemail to Ms MacIntyre 10 Pursuant to the OPSEU polIcy on lateral transfers, as Job Secunty Officer, It IS Ms Harper's role to forward the Lateral Transfer mformatIOn to the Umon Chair of the 3 MImstry Employee RelatIOns CommIttee, Steven Lumb If the Local Umon does not agree to any of the lateral transfer requests, It IS the role of the Umon chair to make a final decIsIOn, m consultatIOn wIth Ms Harper 11 The local umon dId not agree to any of the lateral transfer requests for the CO posItIOn m Peterborough. 12 Between March 26 and April 7, 1998, Ms Harper and Ms MacIntyre, exchanged several VOIce mail messages regardmg the lateral transfer requests to Peterborough. 13 On Fnday, April 3, 1998, Ms MacIntyre faxed a letter to Ms Harper askmg that a recommendatIOn be gIven to the employer by noon on Tuesday, April 7, 1998 or the vacancy would be advertIsed. 14 OPSEU dId not provIde a recommendatIOn and the posItIOn was posted for competItIOn on April 8, 1998 15 On April 8, 1998, Ms Harper contacted Ms MacIntyre and mdIcated to her that smce the posItIOn had been posted, OPSEU would make no recommendatIOn as to the Lateral transfer request. 16 The competItIOn closed on April 29, 1998 and was filled by Ken Snowden. He accepted the posItIOn on May 25, 1998 and assumed the posItIOn on June 22, 1998 17 The Gnevor filed a gnevance on April 9, 1998 regardmg the demal of tills lateral transfer request. 18 The Gnevor was successful m obtaImng a lateral transfer to a ConservatIOn Officer vacancy m the Mmden area office effectIve February 28, 1999 4 The gnevor's applIcatIOn for a lateral transfer was the first such request handled by Sue MacIntyre She testIfied the Job had been vacant smce Janumy 1, 1998 and approval to fill It was not gIVen until early March. By early April, the manager, GaIY Brown, was pressmg Ms MacIntyre to have the posItIOn filled as soon as possible m antIcIpatIOn of the spnng fishmg season. In addItIOn to the vacancy, Mr Brown was copmg wIth the absence of a conservatIOn officer on sIck leave When the gnevor's applIcatIOn came to a head m early April, Sandra Harper was busy workmg on a "reasonable efforts" case mvolvmg a large group ofumon members Ms Harper co-authored the umon's polIcy on lateral transfers, mtroduced m 1993, and smce that tIme she has dealt wIth thousands of such transfers m the OPS Ms Harper concluded the gnevor's applIcatIOn should be approved because he had a compassIOnate reason, the posItIOn bemg sought was IdentIcal to hIS former one and he was the most semor of the three applIcants In the face of OpposItIOn from the local umon, the gnevor's request for a lateral transfer could not be supported by the umon unless approved by the MERC chair Ms Harper testIfied local umon presIdents commonly oppose such requests but they are over-ruled "nmety per cent of the tIme" by the MERC chair Steve Lumb was elected MERC chair m late Februmy of 1998 Before dealmg wIth the case at hand, Mr Lumb had not prevIOusly dealt wIth a lateral transfer On Fnday, March 27, Sandra Harper left a message for Elame Bagnall, presIdent of the local unIOn m Peterborough. The followmg Monday or Tuesday, Ms Harper left a VOIce message for Ms MacIntyre askmg her to confirm the number of vacanCIes for a conservatIOn officer m Peterborough. On Tuesday, Ms MacIntyre left a VOIce message saymg there was a smgle 5 vacancy The same day Ms Harper spoke to Elame Bagnall who mdIcated she was opposed to allowmg a lateral transfer because a number of employees m Peterborough were mterested m applymg for the vacanCIes Ms Harper said she needed theIr names, classIficatIOns and contmuous servIce dates Such details were not provIded before the Job was posted. There IS some conflIct as to what occurred between Sandra Harper and Sue MacIntyre Ms Harper testIfied about speakmg wIth Ms MacIntyre on April 3, before receIVmg the fax sent that day, tellmg her about havmg "dIfficulty" wIth the local umon presIdent, saymg she was confident Mr StIver's applIcatIOn would be approved, and mdIcatmg the umon would probably have a answer "mId to late next week." Ms MacIntyre testIfied about a message left by Ms Harper on April 2 saymg the umon would "get back" to her "mId to late next week, probably Thursday" Ms MacIntyre does not recall receIVmg any mdIcatIOn the applIcatIOn would be approved. Between 430 and 500 p.m. on Fnday, April 3, Ms MacIntyre sent to Ms Harper the fax settmg a deadlIne of noon on Tuesday, April 7 Ms MacIntyre testIfied about a message left by Ms Harper on April 3, after receIvmg the fax, askmg for more tIme, because she was workmg wIth a new team on the MImstl)' Employee RelatIOns CommIttee (MERC), saymg she would be at the GSB on Monday, and askmg to talk about the matter when she returned to her office on Tuesday In her testImony, Ms Harper IS not sure whether she knew about the fax before Tuesday There IS also some dIspute as to what occurred on April 6 Ms Harper testIfied she left a message for Ms MacIntyre requestmg an extensIOn of the deadlIne until April 9 Accordmg to Ms MacIntyre, she left a message for Ms Harper askmg her to call when she returned to the office on April 7 Ms 6 MacIntyre also testIfied about receIvmg a message on April 7 mdIcatmg Ms Harper would be on a conference call that mornmg but would be free by noon. Based upon thIS mformatIOn, Ms MacIntyre waited until the end of the day for a reply They dId not speak dIrectly to one another that day The Job was posted the followmg mormng. In my VIew, lIttle turns on the dIscrepancIes between the eVIdence of Ms Harper and that ofMs MacIntyre On eIther account of what happened, Ms Harper suggested the umon would have an answer before Fnday, April 10 Also on eIther account, Ms MacIntyre subsequently commumcated a deadlme of noon on Tuesday, April 7 and Ms Harper responded by askmg for more tIme Mr Lumb cannot recall exactly when he first spoke to Ms Harper, but her notes mdIcate they conversed on April 2 She advIsed hIm the umon's practIce favoured the gnevor's applIcatIOn but Ms Bagnall opposed It. Bemg new to the posItIOn ofMERC chair, Mr Lumb declIned to make a decIsIOn wIthout further reflectIOn and consultatIOn. Ms Harper suggested he speak wIth an expenenced MERC chair, Paul DunseIth, at the MImstry of TransportatIOn. Mr Lumb testIfied he wanted to speak wIth Mr DunseIth but dId not have an opportumty to do so before the Job was posted on April 8 On April 8, after learnmg the Job had been posted, Mr Lumb called Ms MacIntyre to mqUIre why the employer had not gIVen the umon more tIme Dunng theIr conversatIOn, each of them expressed a preference for Job competItIOns over lateral transfers Mr Lumb testIfied he told Ms MacIntyre he had been "leanmg" towards denymg the gnevor's applIcatIOn. He demed saymg he had made a final decIsIOn. Mr Lumb dId not keep any notes of thIS conversatIOn. Ms MacIntyre's notes state "Steve looked at the requests and 7 he advIsed he was not prepared to approve any of these lateral transfer requests" Mr L umb dId speak to Mr DunseIth at the umon's annual conventIOn later m April. Mr DunseIth confirmed Ms Harper's account of OPSEU' s practIce and said a MERC chair was reqUIred m many cases to over-nde the decIsIOn of a local presIdent. Smce that tIme, Mr Lumb has dealt wIth fourteen or fifteen requests for a lateral transfer, mne mvolvmg conservatIOn officers About half of the applIcatIOns were opposed by the local umon, but approved by Mr Lumb nonetheless Both OPSEU's polIcy on lateral transfers and the mmIstry's polIcy address the tIme frame for the umon to respond when asked for ItS posItIOn on an employee's request. Accordmg to the umon's polIcy, It "must make evety effort" to reply "dunng the tIme the employer IS makmg ItS surplus clearance search, whIch normally takes one (1) week." The employer's polIcy says the unIon will "endeavour" to respond "wIthm one week." Ms Harper testIfied that m practIce the unIOn typIcally takes two or three weeks and that a request for more tIme had never been demed before the case at hand. Accordmg to her, the process IS prolonged when there IS a new local presIdent or MERC chair who needs to be educated about OPSEU's approach to lateral transfers Smce the gnevor's applIcatIOn was demed, Ms MacIntyre has handled five requests for a lateral transfer In all five cases, the umon replIed m less than one week. In order for a lateral transfer to occur, It must be approved not only by the umon but also by the employer Ms Harper testIfied she has asked the employer not to send a request to the umon unless the employer mtends to 8 approve It. She could recall only two or three cases where the umon approved a request and the employer then rejected It. However, she conceded that" a lot of the tIme" a mmIstry proceeds dIrectly to competItIOn wIthout approachmg the umon about a lateral transfer ThIS mmIstry's polIcy mdIcates the ments of a request will not be assessed by management until It has been approved by the umon. Ms MacIntyre testIfied the gnevor's applIcatIOn was not consIdered on ItS ments by the employer because the umon dId not approve It. In the five other cases handled by Ms MacIntyre, the applIcatIOn was approved by both partIes Ken Snowden, the employee who won the Job competItIOn, assumed hIS new dutIes on June 22, 1998 Mr StIver testIfied he could have started as soon as the employer wIshed If hIS request for a lateral transfer had been approved m April. II Dmon counsel contends that artIcle 6 6 1 confers a dIscretIOn upon management and that the exerCIse of thIS dIscretIOn IS governed by the same standards as have been applIed m the context of an applIcatIOn for special and compassIOnate leave Counsel relIes upon MInistry of Transport and OPSEU, decIsIOn dated April 9, 1985, GSB File No 513/84, a case mvolvmg specIal and compassIOnate leave where Mr Venty wrote In cases mvolvmg the exerCIse of managenal dIscretIOn. Boards of ArbItratIOn generally hesItate to SubstItute theIr VIew for that of the decIsIOn-maker, WhICh IS a recogmtIOn of the fact that the Boards have less familIanty wIth the eXIgencIes of the workplace However, ArbItrators must ensure that decIsIOns are made wIthm the confines of certam standards of admImstratIve 9 JustIce Those admmIstratIVe law concepts relatmg to the proper exerCIse of dIscretIOn mclude the followmg consIderatIOns 1 The decIsIOn must be made m good faith and wIthout dIscnmmatIOn. 2 It must be a genume exerCIse of dIscretIOnary power, as opposed to a ngId polIcy adherence 3 ConsIderatIOn must be gIven to the ments of the mdIvIdual applIcatIOn under reVIew 4 All relevant facts must be consIdered and conversely Irrelevant consIderatIOns must be rejected. (page 16) In my VIew, these cntena should be applIed whenever the employer decIdes to reject an applIcatIOn for a lateral transfer on ItS ments However, I agree wIth counsel for the employer that these cntena have no dIrect applIcatIOn to the case at hand because the ments of Mr StIver's applIcatIOn were never consIdered by the employer The MImstry rejected hIS applIcatIOn because It was not approved by the umon by April 7 ThIS observatIOn bnngs me to the umon's second argument. Counsel contends artIcle 6 6 1 ImplIcItly reqUIres the employer to allow the umon a reasonable opportumty to make a decIsIOn. In my VIew, such an oblIgatIOn eXIsts, at least m cases where the employer has not consIdered an applIcatIOn on ItS ments and decIded to reject It for valId reasons The purpose of artIcle 6 6 1 would be negated If the employer could defeat an applIcatIOn by not allowmg the umon an adequate opportumty to grant ItS approval My conclusIOn that the employer must allow the umon a reasonable opportumty IS bolstered by provIsIOns found m OPSEU's polIcy and the mImstty's polIcy allowmg the umon a tIme frame m WhICh to respond. 10 These polIcIes reqUIre the umon to "make every effort" or to "endeavour" to reply wIthm one week. In other words, the penod of one week IS expressed as a gUIdelme and not a ngId deadlme The eVIdence demonstrates a practIce whereby the umon often takes longer There IS nothmg to contradIct Ms Harper's testImony that the normal tIme lapse m the thousands of cases she has handled has been two or three weeks In the mstant case, three and one-half weeks elapsed between Fnday, March 13, when the documents were delIvered to OPSEU by couner, and the postmg of the Job on Wednesday, April 8 An mterval of three and one-half weeks IS not unreasonably short for the umon to make a decIsIOn. If the employer at the outset had asked for a response wIthm thIS tIme frame, I would not fault management for enforcmg ItS deadlme Tills IS not what occurred. No tlll1e lme was establIshed until very late m the pIece Three weeks after refemng the matter to the umon, at the end of the day on a Fnday, the employer set a deadlme of noon on the followmg Tuesday, one and a half busmess days later Before the deadlme was set, Ms Harper mdIcated she would have an answer by the end of the week. Before It was set or very soon thereafter, Ms MacIntyre knew Ms Harper would not be m her office on Monday and she was dealmg wIth a new MERe chair Once Ms MacIntyre learned Ms Harper had a conference call on Tuesday mornmg, the deadlIne was extended to the end of the day on Tuesday, but thIS extensIOn was not commumcated to the umon. In the cIrcumstances, I conclude the deadlme set by the employer was not reasonable In thIS sense, there was a vIOlatIOn of the employer's ImplIed oblIgatIOn under artIcle 66 1 11 III The remedy sought by the gnevor IS reImbursement for travel expenses He IS content to retam the Job m Mmden WhICh he obtamed by way of a lateral transfer after ills Peterborough applIcatIOn had been rejected. He seeks reImbursement for the penod between the demal of hIS Peterborough request and hIS assumptIOn of dutIes m Mmden. Dunng thIS penod, he lIved m BailIeboro, approxImately twenty kilometers south of Peterborough. The travel expenses sought are for the dIfference between the dIstance from BailIeboro to Bracebndge and the dIstance from BailIeboro to Peterborough. Employer counsel contends such damages should not be awarded because the gnevor moved to BailIeboro long before hIS request for a lateral transfer was demed. I am not persuaded by thIS argument. Had the gnevor been granted the PeterboroughJob, he would have ceased workmg m Bracebndge If hIS applIcatIOn would have succeeded "but for" the contraventIOn of artIcle 6 6 1, the vIOlatIOn would be the cause of hIS contmumg to work m Bracebndge, and damages would be recoverable for the extra cost associated wIth that Job In thIS scenano, not only would the expense be caused by the breach, but the employer could have foreseen thIS consequence at the tIme of the vIOlatIOn, as management knew the gnevor was lIvmg m BailIeboro and workmg m Bracebndge GIven the dIstances mvolved, It was entIrely foreseeable that contmumg to work m Bracebndge would entail some type of cost greater than workmg m Peterborough. Would the gnevor have been granted the PeterboroughJob "but for" the employer's breach? ThIS IS the central questIOn on the remedial front. A lateral transfer reqUIres the approval of both the employer and the umon. The testImony ofMs Harper and Ms MacIntyre mdIcates there IS a vel)' illgh 12 probabilIty the employer would have approved the applIcatIOn If the umon had decIded to support It wIthm a reasonable tIme Would the umon have decIded to lend Its support If allowed a reasonable opportumty to do so? In my VIew, It would have been reasonable for the employer on Fnday, April 3 to have set a deadlIne of the followmg Fnday ThIS IS the latest date by wInch Ms Harper mdIcated she would reply What would Steve Lumb have done wIth three extra days? Would he have contacted Paul DunseIth or some other expenenced MERe chair? (He dId not contact Mr DunseIth between Thursday, April 2, when first called by Ms Harper, and Tuesday, April 7 ) If contact had been made wIth some other chair, would Mr Lumb have receIved the same advIce as he eventually got from Mr DunseIth? Would any advIce gIVen have persuaded Mr Lumb to abandon hIS mItIaI mclmatIOn not to over-rule the local presIdent? None of these questIOns can be answered wIth certamty Nonetheless, the gnevor's chances of success "but for" the vIOlatIOn were not mSIgmficant. In my VIew, It IS as likely as not that he would have succeeded If the umon had been allowed a reasonable opportumty to decIde How does the law of contract deal wIth an uncertam loss? When a breach of contract has occurred, and there IS uncertamty as to whether any loss resulted, the courts award damages based upon an estImatIOn of the probabilIty that an mJury was suffered. In The Law of Contracts (2nd ed.), Professor Waddams wrote The court will estImate the loss, even If the estImatIOn IS a matter of "guesswork." Thus, where the breach of contract depnves the plamtIff of an OpportunIty that mIght or mIght not have been 13 profitable, hIS damages are measured by the value of the chance (page 554 and 555, emphasIs added) Based upon my estImatIOn of the gnevor's chance of success, I award one half of the extra cost ansmg from the Bracebndge Job I remam seIzed to fix quantum If the partIes are unable to agree Dated at Toronto, thIS 4th day of October, 1999 RIchard M. Brown, VIce-Chair 14