HomeMy WebLinkAbout1998-1587.Bouchard.02-10-30 Decision
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GSB#1587/98
UNION#99C021
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OntaTIo PublIc ServIce Employees Umon
(Bouchard)
Grievor
-and-
The Crown In RIght of OntaTIo
(Mimstry of the EnvIronment)
Employer
BEFORE Richard Brown Vice-Chair
FOR THE UNION Don MartIn
GTIevance Officer
OntaTIO PublIc ServIce Employees Umon
FOR THE EMPLOYER Len HatzIs
Counsel
Management Board SecretaTIat
HEARING January 15 & October 15 2002
2
DECISION
In a gnevance dated December 11, 1998, MIchel Bouchard objected to the
mInIstry's refusal to recall hun from layoff to fill a vacancy In the posItIOn
of E04 abatement officer ThIS decIsIOn deals exclusIvely wIth the Issue of
whether the questIOn posed by tlus gnevance IS the same as the one already
answered In a decIsIOn of tlus board dISmISSIng an earher gnevance by Mr
Bouchard on the ground that he was not quahfied to dIsplace a Jumor
employee workIng as an E04 abatement officer The partIes agree tlus
gnevance would be barred by the doctnne of Issue estoppel If the questIOn
raised by It IS the same as the one prevIOusly decIded.
I
Mr Bouchard's first gnevance, dated January 24, 1997, was dIsmIssed by
me In Ontarzo Puhlzc Servlce Employees' Unzon (Bouchard) and Mlnzstry of
EnVlronment and Energy, decIsIOn dated September 9, 1999, GSB FIle No
0055/97 The facts gIVIng nse to that gnevance and the Issue between the
partIes are summarIzed In the first two paragraphs
MIchel Bouchard was employed by the MInIstry of the EnVIromnent
as an air quahty techmcIan In Cornwall from 1979 untIl 1997 when
Ius posItIOn was declared surplus He receIved a surplus notIce In
January and ceased workIng In July As an air quahty techmcIan, Mr
Bouchard was classIfied as an envIromnental officer 4 (E04) After
reCeIVIng the surplus notIce, he dechned an offer of employment as a
bIlIngual semor envIromnental officer at the SpIlls ActIOn Centre
(SAC) In Toronto, also an E04 Job The umon contends Mr Bouchard
was quahfied to work as an E04 abatement officer and, therefore,
3
should have been allowed to bump the least semor abatement officer
In Cornwall Marc Robert, an abatement officer at that locatIOn Jumor
to the gnevor, attended most days of the heanng and partIcIpated
actIvely when In attendance
The sole Issue IS whether Mr Bouchard was "quahfied" to
work as an abatement officer wItlun the meanIng of artIcle 20 4 1 of
the collectIve agreement In contendIng Mr Bouchard met tlus
standard, the umon advanced two arguments The first contentIOn IS
that the gnevor was quahfied to work as an E04 abatement officer
wIthout any addItIonal traInIng In the alternatIve, the umon contends
he would have been quahfied If gIven the traInIng offered to all
employees who assume the role of abatement officer AccordIng to
tlus alternatIve argument, the gnevor was quahfied wItlun the
meanIng of artIcle 24 4 1 because he was no less quahfied than some
one appoInted to fill a vacancy who would be offered tlus traInIng
(page 1)
HavIng revIewed the eVIdence, I turned to the umon's first submIssIOn
and stated.
The umon's pnmary argument IS that the gnevor meets the test of
"present abIhty" expounded In OPSEU (Loebel) and Mlnzstry of
Munzclpal Affazrs and Houszng, dated Feb 15, 1983, GSB No
331/82 (Venty) SpeakIng for the maJonty In Loebel, Mr Venty
wrote
To detennIne If a surplus employee IS quahfied to perform the
work pursuant to ArtIcle 242 3, the Board accepts
Management's argument of "present abllzty" to the extent of
mlnzmum competence In all components of the Job
reqUIrements To adopt any hIgher test of present abIhty would
be to destroy the sIgmficance of ArtIcle 24 2 3 That ArtIcle has
been mutually agreed upon by the PartIes to benefit surplus
employees by affordIng them certaIn preferentIal nghts of
appoIntment Few, If any, surplus employees would succeed In
mOVIng from one MInIStry to another If the accepted test were
more stnngent than mInunum competence In all of the maJor
components of the Job (pages 21 and 22, emphasIs added)
4
Mr Venty went on to address the matter of traInIng
There IS no doubt Dr Loebel could have become quahfied to
perfonn the Job In tune However, that IS not the Issue before
tlus Board. In the present wordIng of artIcle 24 2 3 there lS no
prOVlszon for a famllzarzzatzon or traznzng perzod (page 23,
emphasIs added)
In January of 1997, dId Mr Bouchard have the "present abIhty"
to work as an E04 abatement officer?
The foregoIng analysIs leads me to conclude Mr Bouchard dId
not have the reqUIred understandIng of Industnal and mUnIcIpal
enterpnse and of envIronInentallaw and procedure In the words of
Loebel, he lacked the "present abIhty" to functIOn as an E04
abatement officer (pages 14 to 16)
The unIon's second submIssIOn was that the "present abIhty" test In
Loebel dId not apply to the gnevor AddressIng tlus contentIOn, I wrote
The unIon's alternatIve argument IS that the Mr Bouchard falls wItlun
an exceptIOn to the test of "present abIhty " In tlus regard, Counsel
referred to a senes of cases begInnIng wIth OPSEU (Hlll and
Campbell) andMlnzstry of Labour, dated Oct 12,1984, GSB No
492/83 (Roberts), a case InvolvIng vacant posItIOns HavIng been
declared surplus, the two gnevors sought work as occupatIOnal health
and safety officers All candIdates appoInted to tlus posItIOn
underwent a ten-week traInIng course The argument advanced by the
employer In Hlll and Campbell was summanzed by Mr Roberts as
follows
Here, the MInIStry was not lookIng for "present abIhty", rather
It was lookIng for an employee who would possess "present
abIhty" upon completIOn of a mandatory ten-week traInIng
course whIch was reqUIred to be completed by all persons lured
as OccupatIOnal Health and Safety Officers It was
acknowledged that If eIther of the gnevors had been successful,
they would have been put through tlus course (page 19)
In other words, the employer conceded the gnevors should not be
deemed unquahfied merely because they had not completed the
5
mInIstry's traInIng program The employer's argument was that the
gnevors lacked the basIc quahficatIOns reqUIred to be lured and
undergo tlus traInIng Mr Roberts agreed wIth respect to one gnevor
but not the other GIven the employer's conceSSIOn about It'S traInIng
program, the board was not called upon to decIde whether the lack of
such traInIng rendered an employee unquahfied, and Mr Roberts
refraIned from dOIng so AccordIngly, If Hlll and Campbell
recognIzes an exceptIOn to the test of "present abIhty", one whIch
apphes where all new appoIntees undergo mandatory traInIng, the
exceptIOn was created by way of employer conceSSIOn rather than
Board ruhng It mIght be noted the conceSSIOn was made In the
context of a surplus employee filhng a vacancy, not In the context of
one employee dIsplacIng another
The last case In tlus senes, and the one upon whIch UnIon
counsel rehes most heavIly, IS OPSEU (Bazznet) and Mlnzstry of
EnVlronment and Energy, dated Apnll4, 1998 (Mikus) The gnevor
In that case sought to dIsplace an InvestIgatIOns officer after beIng
declared surplus All employees appoInted to tlus posItIOn took SIX
weeks of traInIng, two weeks at the outset and the remaInIng four
weeks spread over the course of two years The employer contended
the gnevor was unquahfied because he dId not know what was taught
dunng the first two weeks HavIng revIewed the relevant legal
prIncIples and the eVIdence, Ms MIkus apphed the law to the facts
before her She first ruled Mr BazInet was quahfied to do the Job he
desIred wIthout any traInIng
In summary, gIven the wIde range of dutIes set out In the Job
specIficatIOn [the employer's] few areas of concern are not
sufficIent to conclude the gnevor IS unable to do the core
reqUIrements of the Job It IS my VIew that IS sImply a matter
of superVISIOn rather than traInIng (page 44)
HavIng decIded the gnevor already had the abIhty to do the Job,
Ms Mikus could have allowed the gnevance wIthout saYIng anytlung
about what should happen In the hypothetIcal sItuatIOn of a gnevor
who would acqUIre tlus abIhty only after further traInIng Nonetheless,
she went on In the next paragraph to address tlus Issue In the
folloWIng oblter ruhng
6
In any event, like the Hlll and Campbell case, the Employer has
a mandatory traInIng program whIch all employees must attend.
If the first two weeks are a mandatory program sunIlar to that
In the Hlll and Campbell case, the gnevor wIll no doubt be
reqUIred to attend those two weeks of traInIng before assumIng
any Job dutIes There IS no questIOn In my mInd that, after the
first two weeks, he would be capable of perfonnIng the core
dutIes of the Job wIthout dIfficulty (page 44)
Before these oblter comments In Bazznet, the Board had not
ruled upon any exceptIOn to the Loebel standard. The employer
acknowledged an exceptIOn In Hlll and Campbell In the context of a
vacancy, but there was no clear acknowledgement of an exceptIOn In
Smlth In the context of a dIsplacement The oblter ruhng In Bazznet
took the exceptIOn conceded In Hlll and Campbell, In the settIng of
redeployment to a vacant posItIOn, and apphed It to dIsplacement of
an Incumbent employee The ruhng was made wIthout acknowledgIng
tlus factual dIstInctIOn and wIthout consIdenng whether It was
sIgnIficant The propnety of such an extensIOn ments consIderatIOn
There IS a compelhng ratIOnale for recognIZIng an exceptIOn to
the present abIhty test In the context of a vacancy In a posItIOn for
whIch traInIng IS mandatory When a posItIOn IS vacant, whoever IS
appoInted to fill It would have to be traIned. A surplus employee IS no
dIfferent than anyone else In tlus respect It would be absurd for the
employer to argue the surplus employee IS unquahfied because he or
she lacks traInIng whIch every other candIdate also lacks, because no-
one would be quahfied accordIng to tlus argument ThIS absurdIty
probably explaIns the conceSSIOn made by management In Hlll and
Campbell
When there IS no vacancy, the sItuatIOn IS dIfferent As the
Incumbent has completed the mandatory traInIng, there IS no need to
traIn anyone, unless the Incumbent IS dIsplaced by the surplus
employee In the context of a dIsplacement, It IS not absurd for the
employer to argue the surplus employee IS unquahfied because he or
she reqUIres traInIng whIch the Incumbent already has In other words,
the Saine ratIOnale does not eXIst for a departure from the nonnal
standard of "present abIhty" set out In Loebel
ThIS standard was estabhshed at least fifteen years ago and has
not been changed In collectIve bargaInIng In the IntervenIng years In
7
the absence of some absurdIty, an arbItrator has no authonty to
modIfy a long-estabhshed rule whIch the partIes to the collectIve
agreement have seen fit not to alter In succeSSIve rounds of
negotIatIOns AccordIngly, I am bound to apply the ruhng In Loebel to
the gnevance at hand. (pages 16 to 20)
II
The Court of Appeal SUCCInctly restated the elements of Issue estoppel In
Rasanen v Rosemount Industrzes Llmlted (1994), 17 O.R. (3d) 267
The proceedIng before us Involves Issue estoppel Lord Guest
summanzed the reqUIrements of Issue estoppel as follows In Carl
Zelss, supra, at p 935
1) that the Saine questIOn has been decIded,
2) that the JudIcial decIsIOn whIch IS Said to create the estoppel was
final, and
3) that the partIes to the JudIcial decIsIOn or theIr pnvIes were the
same persons as the partIes to the proceedIngs In whIch the estoppel IS
raised or theIr pnvIes
The proper InqUIry In decIdIng whether the reqUIrements have
been met IS whether the questIOn to be decIded In these proceedIngs IS
the same as was contested In the earher proceedIngs and was,
moreover, so fundamental to the decIsIOn that It could not stand
wIthout the detennInatIOn of that questIOn
III
Both ofMr Bouchard's gnevances were filed under the 1994-98 collectIve
agreement The first was decIded under artIcle 20 4 entItled "DIsplacement"
The relevant portIOns state
8
20 4 1 An employee has receIved notIce of lay-off pursuant to ArtIcle
202 (NotIce and Pay In LIeu), and who has not been assIgned
In accordance wIth the cntena of ArtIcle 20 5 (Redeployment)
to another posItIOn shall have the nght to dIsplace an employee
who shall be IdentIfied by the Employer In the folloWIng
manner
(a) The Employer wIll IdentIfy the employee wIth the least
senIonty In the same classIficatIOn and the same mInIstry as the
employee's surplus posItIOn If such employee has less
senIonty than the surplus employee, he or she shall be dIsplaced
by the surplus employee provIded that
(1) such employee's headquarters IS located wItlun a forty (40)
kIlometre radms of the headquarters of the surplus employee,
and
(11) the surplus employee lS qualified to perform the work of the
ldentified employee (emphasIs added)
The Instant gnevance anses under artIcle 20 6, entItled "Recall" The
relevant portIOns state
20 6 1 A person who has been laid off IS entItled to be assIgned to a
posItIOn that becomes vacant wItlun twenty-four (24) months
after Ius or her layoff provIded that
(a) the vacant posItIOn IS In the same classIficatIOn and mInIstry
as Ius or her fonner posItIOn, and
(b) the vacant posItIOn IS wItlun a forty (40) kIlometre radms of
Ius or her fonner headquarters, and
(c) he or she lS qualified to peiform the requlred dutles, 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
9
pursuant to ArtIcle 20 6 or ArtIcle 20 5 (Redeployment)
(emphasIs added)
The mInIstry contends there IS no dIfference In meanIng between
"quahfied to perfonn the work of the IdentIfied employee" In artIcle
20 4 l(a) (n) and "quahfied to perform the reqUIred dutIes" In artIcle 20 6 1
(c) The mInIstry also submIts the case law has utIhzed the "present abIhty"
test not only In the context of dIsplacement of a JUnIor employee but also In
the context of redeployment to a vacant posItIOn Counsel for the mInIstry
notes Loebel apphed tlus test to redeployment and my decIsIOn on Mr
Bouchard's first gnevance apphed the Saine test to dIsplacement Based on
the premIse that recall IS analogous to redeployment, Insofar as both entaIl
an employee clannIng a vacant posItIOn, counsel argues the case law dIctates
that both be governed by the test of "present abIhty "
The UnIon submIts the "reqUIred dutIes" In artIcle 20 6 1 (c) are only a
subset of those compnSIng the "work" In artIcle 204 l(a) In addItIon, I was
asked to VIew recall dIfferently than dIsplacement or redeployment, because
recall represents "the last chance of an employee already on layoff" The
UnIon also rehes upon the second and tlurd last paragraphs of the foregoIng
passage from my earher decIsIOn, where I drew a dIstInctIOn between
clannIng a vacant posItIOn and seekIng to dIsplace a JUnIor employee, a
dIstInctIOn apphcable to the Hlll and Campbell exceptIOn to the "present
abIhty" test
IV
In general, tlus board has taken the same approach when asseSSIng a surplus
employee's quahficatIOns to claim a posItIOn through eIther redeployment to
10
a vacancy or dIsplacement of someone wIth less senIonty The "present
abIhty" test was apphed to redeployment In Loebel and to dIsplacement In
my decIsIOn on Mr Bouchard's first gnevance As recall IS analogous to
redeployment, In the sense that both Involve filhng a vacant posItIOn, the
"present abIhty test" generally should be apphed to recall
There IS an Important exceptIOn to the general rule that the "present
abIhty" test IS utIhzed to assess quahficatIOns when deahng wIth
dIsplacement, redeployment or recall In Hlll and Campbell, the employer
conceded tlus test dId not apply to a vacancy for whIch any successful
candIdate would have to be traIned. In my decIsIOn on the first gnevance, I
explaIned why such an exceptIOn was warranted when a surplus employee
claims a vacancy but not when such a person seeks to dIsplace someone else
ThIS explanatIOn warrants repetItIOn because It IS central to a detennInatIOn
of whether the present gnevance IS barred by Issue estoppel
There IS a compelhng ratIOnale for recognIZIng an exceptIOn to the
present abIhty test In the context of a vacancy In a posItIOn for whIch
traInIng IS mandatory When a posItIOn IS vacant, whoever IS
appoInted to fill It would have to be traIned. A surplus employee IS no
dIfferent than anyone else In tlus respect It would be absurd for the
employer to argue the surplus employee IS unquahfied because he or
she lacks traInIng whIch every other candIdate also lacks, because no-
one would be quahfied accordIng to tlus argument ThIS absurdIty
probably explaIns the conceSSIOn made by management In Hlll and
Campbell
When there IS no vacancy, the sItuatIOn IS dIfferent As the
Incumbent has completed the mandatory traInIng, there IS no need to
traIn anyone, unless the Incumbent IS dIsplaced by the surplus
employee In the context of a dIsplacement, It IS not absurd for the
employer to argue the surplus employee IS unquahfied because he or
she reqUIres traInIng whIch the Incumbent already has In other words,
the Saine ratIOnale does not eXIst for a departure from the nonnal
standard of "present abIhty" set out In Loebel (pages 19 and 20)
11
In short, where traInIng for a posItIOn IS mandatory, the present abIhty test
apphes to dIsplacement of a JUnIor employee but not to filhng vacanCIes In
other words, where there IS mandatory traInIng, the questIOn arISIng from a
dIsplacement gnevance IS dIfferent than the one anSIng from a gnevance
about redeployment or recall
V
In the case at hand, there IS a factual dIspute as to whether employees
appoInted to the posItIOn of abatement officer E04 undergo mandatory
traInIng My first decIsIOn summarIzed the eVIdence led on tlus subJect
In addItIon to completIng the courses taken by Mr Bouchard, new
abatement officers take a number of other mInIstry courses and work
under the watchful eye of those wIth more expenence Some officers
start dOIng abatement work at the E02 level, others at the E03 level
and stIll others at the E04 level Whatever the pOInt of entry, new
abatement officers undergo a traInIng program compnsed of a senes
of 100 level courses, offered by the mInIstry, and on-the Job tutelage
from seasoned officers and supervIsors New officers take the full
range of 100 level courses wIth mInor exceptIOn An officer may be
exempted from a course If Ius or her background renders It redundant
(pages 8 and 9)
HavIng concluded that the "mandatory traInIng" exceptIOn to the "present
abIhty" test dId not apply to dIsplacement, I was not reqUIred to make any
factual detennInatIOn as to whether traInIng for the posItIOn of abatement
officer E04 was mandatory, and I dId not do so In my ear her award.
VI
My conclusIOn can be bnefly summanzed. The questIOn posed by Mr
Bouchard's recall gnevance would be the dIfferent than the one posed by Ius
12
earher dIsplacement gnevance If there was mandatory traInIng for the
posItIOn of abatement officer E04 at the relevant tnne The two questIOns
would be the same If there was not mandatory traInIng A final ruhng on the
apphcatIOn of the doctnne of Issue estoppel to the second gnevance must
aWait a resolutIOn of the factual dIspute relatIng to traInIng
Dated at Toronto tlus 30th day of October 2002
d~
RIchard Brown
VIce-Chair