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HomeMy WebLinkAbout1999-0972.Thompson.00-11-20 Decision o NTARI 0 EMPLOYES DE LA CO['RONNE CROWN EAIPLOYEES DE L 'ONTARIO -- 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 #0972/99 OPSEU#99B835 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntarIO Pubhc ServIce Employees Umon (Thompson) Gnevor - and - The Crown ill RIght of Ontano (Mimsm of EconomIc Development, Trade and Tounsm) Employer BEFORE Owen V Gra, V Ice Chair FOR THE Don MartIn GRIEVOR Gnevance Officer Ontano Pubhc ServIce Employees Umon FOR THE Fateh Sahm EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING September 7 and November 2 2000 DECISION [1] The gnevor IS an InternatIOnal Market Consultant wIth Ontano Exports Inc ("OEI") the OntarIO government S mternatIOnal trade agency OEI provIdes support for OntarIO compames wlshmg to do busmess outsIde Canada It under went a reorgamzatIOn m May 1999 Pnor to the reorgamzatIOn, the gnevor S a'-' sIgned dutIes related to markets m South East ASIa. In the course of the reor gamzatIOn he was reassIgned to dutIes relatmg to markets m the Amencas AI though thIS mvolved no change m hIS IDO'3 Job classIficatIOn arreI, hence no change m payor benefits, he regarded the new dutIes as less desIrable and pres tIgIOus than hIS former dutIes He gneved that thIS treatment constItuted ells cnmmatIOn on the basIs of age contrary to ArtIcle '3 of the collectIVe agreement [2] Pnor to the reorgamzatIOn, OEI had four branches each headed by a n rector reportmg to the PresIdent There was a branch for the Amencas one for ASIa PacIfic (hereafter referred to as the ASIa branch) one for Europe the MIddle East and Afnca (hereafter referred to as the Europe branch) and one for Export Marketmg & AnalysIs After the reorgamzatIOn there were 5 branches There was stIll a branch for the Amencas wIth a greater number of IDO'3 staff than formerly The ASIa branch was combmed wIth the Europe branch to form a new InternatIOnal Markets branch headed by the former Dlrec tor of the ASIa branch. The number of IDO'3 staff m thIS combmed branch was to be smaller than the total number of such staff m the predecessor branches The former DIrector of the Europe branch was to head a new InternatIOnal CapItal Projects branch wIth one IDO'3 reportmg to hIm. The head of each of these three branches IS a VIce-PreSIdent reportmg to the PresIdent The former Export Mar ketmg and AnalysIs branch was dIvIded mto two branches a Marketmg & CommumcatIOns branch and an Export AnalysIs & ServIces branch, each headed by a Manager reportmg to the PresIdent 2 ['3] Valene Fountam IR the Vlce-PreRldent of the InternatIOnal MarketR branch, and former DIrector of the ARia branch m whIch the gnevor waR em- ployed prIOr to the reorgamzatIOn. She teRtlfied that m reRponRe to an earlIer taRk force Rtudy EOI'R PreRldent made certam decIRIOnR aR to way the orgamza tIOn Rhould be reRtructured He determmed that the brancheR Rhould be l') alIgned aR I have deRcnbed. He alRo determmed the number of Rtaff pORltIOnR m each branch. HIR chrectIOn to MR Fountam waR that the new InternatIOnal Branch waR to have 1'3 Rtaff mcluchng herRelf and two admmIRtratlVe aRRIRtant pORltIOnR He alRo dIrected that the branch waR to have two Export ConRultant pORltIOnR at the IDO 1 level (the predeceRRor brancheR had had one IDO 1 pORltIOn each) leavmg 8 pORltIOnR for InternatIOnal Marketmg ConRultantR at the IDO'3 level. [4] ThIR repreRented a decreaRe of '3 IDO'3 pORltIOnR when compared wIth the Rtaffing levelR m the predeceRRor ARia and Europe brancheR One of thoRe '3 IDO '3 pORltIOnR waR vacant at the tIme of the reorgamzatIOn. The new IDO'3 pORltIOn m the new CapItal ProJectR branch waR filled by an IDO'3 from the former ARia Pa clfic branch. The net effect of all thIR waR that the predeceRRor ARia and Europe brancheR had one more employee at the IDO'3 level than the new InternatIOnal Mar ketR branch could take The AmencaR branch, on the other hand, had two more IDO'3 pORltIOnR than It had had pnor to the reorgamzatIOn. [5] MR Fountam teRtIfied wIthout contrachctIOn that the demand from On tano compameR for aRRIRtance m ARia had declmed RIgmficantly aR a reRult of the coolmg of the economleR m that regIOn. (~lVen the Rtaffing level Rhe had been allotted, Rhe decIded to reduce the number of IDO'3 R aRRIgned to the ARia PacIfic regIOn by '3 reduce the number of IDO'3 R aRRIgned to Europe MIddle EaRt and Afnca by one and create a new IDO'3 pORltIOn focuRmg on InternatIOnal Fman- CIal InRtItutIOnR One IDO 1 Export ConRultant would be aRRIgned to the terntory former covered by the ARia branch, and one to the terntory former covered by the Europe branch. '3 [6] In late Apnl and early May 1999 MR Fountam met wIth each of the Rtaff m the Europe and ARia brancheR mchvldually to deRcnbe and explam the reor gamzatIOn and find out If they had any mput or preferenceR wIth reRpect to du tIeR m the new orgamzatIOn. Of the 6 IDO'3 R m the former ARia branch, one waR ultImately aRRIgned to the vacant Europe pORltIOn. AR I have already noted, an other expreRRed mtereRt m and waR Relected for the one pORltIOn m the new ill ternatIOnal CapItal ProJectR branch under Mr Wahba the former DIrector of the Europe branch. The gnevor had expreRRed mtereRt m that work, but waR not ffi lected by Mr Wahba The gnevor R pnmary mtereRt waR m contmumg the ARia work he had been domg The Rame waR true for the other '3 ARia IDO'3 R m the former ARia branch. There were only '3 ARia pORltIOnR for IDO'3 R One of theRe 4 IDO'3 R had to be moved to the AmencaR branch. Some tIme after hIR meetmg wIth MR Fountam, the gnevor waR told that he would be rea'-;RIgned to the AmencaR branch. [7] ReRponRlbIl1ty for the ARIan countneR that the gnevor had prevIOuRly COY ered waR dIvIded up between the '3 IDO'3 R who remamed m the ARia team of the InternatIOnal MarketR branch. ThoRe IDO'3 R were aged 48 46 and 4'3 at the tIme The gnevor waR 59 WhIle all three are younger than the gnevor two had more Remonty than he chd. One of the proJectR that the gnevor had been workmg on before the reaRRIgnment mvolved arrangementR wIth Canada HouRe m SIn- gapore concernmg a vIrtual trade mIRRIOn, that IR a trade mIRRIOn conducted by meanR of vIdeo conference facIl1tleR After the maRRIgnment, the project of a' rangmg vIrtual trade mIRRIOnR m ARia waR aRRIgned to Trevor McPhe rRon, the IDOl on the ARia Team. Mr MacPherRon waR then aged 27 The gnevor per celVed that the balance of the actual work he had been performmg prIOr to the reaRRIgnment waR carned on thereafter by Laune DeSouRa and Pamela Kanter the two ARia Team IDO'3 R who had more Remonty than the gnevor The gnevor waR not the oldeRt employee m the brancheR from whIch the InternatIOnal Mar ketR branch waR formed. Terry Gam, an IDO'3 two yearR older than the gnevor waR retamed m that branch. 4 [8] The gnevor teRtlfied that durmg the meetmg he had wIth her pnor to hIR reaRRIgnment, MR Fountam Raid that Rhe had to brmg younger people along 00 caURe older people would be leavmg He RaYR Rhe told hIm that m makmg a-; RIgnmentR to pORltIOnR Rhe would be g1Vmg preference to younger people MR Fountam demeR thIR I Rhall return to that dIRpute after notmg Rome contextual matterR on whIch the umon relIeR [9] The umon argueR that I Rhould prefer the gnevor R eVIdence and find that age waR a conRlderatlOn In management R decIRIOn-makIng becauRe of two al mltted factR One IR that around thIR tIme the employer adopted the polIcleR con tamed m a document entItled Bmldmg Tomorrow R Workforce Today The fol 10wmg appearR at pageR 2'3 and 24 of that document revitalizing the OPS \Vhile the OPS needs mature and expenenced publIc admInIstrators to pro- vule stabilIty we also need younger employees wIth the potentIal to grow Into posItIons of responsibilIty as the wor kforce contInues to age Understanchng the workforce we have and the workforce we need helps to focus our revItah zatIOn InItIatIves to ensure an effectIve publIc servIce mto the future The HR Strategy prom otes a multI-faceted approach to revItalIzIng an agmg OPS workforce and management cadre and addressIng skills gaps and short ages In key areas of work. OPS revItalIzatIOn Includes youth recruItment and succeSSIOn management Corporate and mInIstry revItalIzatIOn strategIes and youth plans will be cm sIstent wIth government chrectIOns and applIcable HR polIcIes and practIces Includmg equal opportunIty youth n~cruitment Youth recruItment emphasIzes attractIng young Inchvuluals wIth up-to-date skills and knowledge to work In occupatIOnal areas where skills shortages ex 1St or are antIcIpated due to retIrement and mobilIty factors Plans for youth recruItment Include establIshmg an Ontano InternshIp Program (see next sectIOn) focused on skills shortage areas IdentIfied corporately and by nnnIstnes focusIng co-op student and mInIstry InternshIp programs on skills short age areas In nnnIstnes and In specIfic occupatIOnal groups and IncorporatIng mInIstry-specrl'ic youth plans Into human resources plans succession management SucceSSIOn management lInks mchvulual potentIal wIth organIzatIOnal needs to ensure the development of a future generatIOn of publIc admInIstrators and skilled professIOnal staff. 5 Over tune the HR Strategy will encourage succeSSIOn nnnagement outsIde the semor manag ement group Incluchng' provHhng OPS wHle learnmg and development opportumtIes to ensure a future generatIOn of specIalIsts IJrO]ect and lIne managers and senIOr managers developIng and unplementIng nnnIstrv succeSSIOn plans Incluchng ca reer -broademng assIgnments and developmental opportunItIes for an plovees and enhancIng the professIOnal cadre and builchng a future management feeder group by hmng skilled mterns and fostenng theIr development. ministry responsibilities for revitalization MInIstnes are expected to Include revItalIzatIOn strategies and youth plans In annual HR plans MmIstry youth plans will consHler career-broadenmg assIgnments and developmental opportUIutIes mImstry InternshIp programs for specIalIzed skill areas placements for students In unIversIty and college co-op programs and partnershIps wIth orgamzatIOns promotIng youth employment resources and supports for ministries and managers To assIst mImstnes to Implement revItalIzatIOn strategIes and youth plans MBS will provIde central admImstratIOn of the Ontano InternshIp Program advIce on best practIces In youth recruItment and retentIOn, a gUIde to best practIces In succeSSIOn management. and reduced barners to external recruItment. [10] The other admItted fact on whIch the umon relIes m support of Its claIm that the gnevor IS a vIctIm of age chscnmmatlOn IS that the employer publIshed the followmg artIcle m the supplement to TopIcal that announced the new HR Strategy Taking a youthful approach to recruitment: Ontario Ex ports Ontano Exports Inc has taken a page out of the new Human Resources Strategy for the OPS by developmg a youth recrUItment strategy of ItS own. OEI - part of the MmIstry of EconomIc Development Trade and Tounsm - recently hIred five young people for new posItIons m InternatIOnal trade and exports It made a lot of sense to try and build up our core human resources and to bnng In young energetIc people saHl Len CnspIno OEl's PresIdent and CEO USIng our employee serVIces branch as a busIness partner we ve been able to strengthen our resources and bnng In a new fresh perspectIve to the 6 work we do It s an approach alIgned wIth the HR Strategy for the OPS called Builchng Tomorrow S \Vorkforce Today whIch encourages Investment In staff learmng and development as well as mlmstry efforts to Incorporate youth strategIes mto therr HR plans Less than five per cent of OPS employ ees are under the age of '30 'ThIs IS exactly the kmd of approach we are lookmg for says Art Damels assIstant deputy mllllster wIth the OPS Restructunng Secretanat \Ve need to revItalIze the OPS and I'm pleased wIth the program undertaken at On tano Exports Inc. The new recruIts have been Involved In Important and hIgh-profile assIgn ments from workIng on trade mISSIOns to helpmg launch new programs and workmg drrectly wIth semor staff and corporate partners My posItIon has provIded me wIth a great opportunIty to learn from the 8( penence of senIOr staff, while also beIng encouraged to Introduce new Ideas and InItIatIves saul Damelle Prplch, 29 a graduate of the Umverslty of" IC tona and Shendan College s postgraduate mternatIOnal busIness program. She has been workmg on mISSIOns mlmstenal tnps and trade shows wIth the ASIa PacIfic branch, The other fresh faces at OEl's Toronto offices are Paula Mornson, a graduate of the Umverslty of ~Testern Ontano and U S InternatIOnal Unlvffslty s InternatIOnal relatIOns graduate stuches Mana lafano a graduate of the UnIversIty of Toronto and the Norman Patterson School of InternatIOnal Mfarrs master s program. Trevor McPherson, from Queen s UnIversIty and the InternatIOnal bUSI ness stuches program at Seneca College Kelly Duffy a graduate of the Umverslty of Guelph and Shendan Col lege s InternatIOnal busIness stuches program. Dan Burns deputy nnmster at MEDTT gave hIS stamp of approval to OEl's nnx of youth and more expenenced employees ~T e can pOInt to OEl's program as a successful model that goes a long way to showmg young people that the OPS IS a vibrant orgamzatIOn and that the govern careers and long term employment he saul. [11] The umon doeR not attack the new HR Strategy m thIR proceedmg The umon R argument about It IR to the effect that the polIcy created a clImate m whIch there waR a concern to favour youth, a clImate m whIch It waR lIkely that thIR would be done by management even to the extent of depnvmg older workerR of opportumtIeR m order to make them aVailable to younger workerR The artIcle It RaYR, RhowR that management at OEI had a concern to Rvour youth at the tIme of the decIRlOnR m IRRue here and the remarkR that the gnevor attnbuteR to MR Fountam are conRIRtent wIth her havmg adopted that concern. 7 [12] MR Fountam demeR havmg Raid that Rhe would be preferrmg younger workerR She teRtIfied that noteR Rhe made a couple of hourR after her meetmg wIth the gnevor reflect the RubRtance of theIr dIRcuRRlOn. In thoRe noteR Rhe ill corded havmg Raid that Rhe would be 100kmg for a balanced mIX of people RkIllR expenence and attItude that there were pORltIVe people aR well aR negatIVe and cymcal people and that Rhe would try hard to balance theRe perRonalItIeR to at tempt to get a balanced team. Accordmg to her noteR Rhe alRo Raid that whIle no one would lORe theIr Job m the orgamzatlOn, Rome Rtaff would be tranRferred to meet the domeRtIc demandR and programR the orgamzatlOn waR cOlmmtted to undertake [13] MR Fountam teRtlfied that the decIRIOn to reaRRIgn the gnevor to the AmencaR branch waR made by a management commIttee of whIch Rhe waR part She waR firm that age waR not a factor m that decIRlOn. She obRerved that there had been no new hlrmg m her branch, adchng that the PreRldent had, aR Rhe put 11, aRRIgned two Jumor Rtaff to my branch. She explamed that when Rhe uRed the word Jumor m that anRwer Rhe waR referrmg to the Job claRRlficatlOn of theIr pORltlOnR, not theIr age and that when that chrectlOn waR gIVen and dIR cURRed Rhe and the PreRldent would have uRed the term IDO 1 not JunIOr [14] It ReemR mORt unlIkely that the remark that the gnevor attnbuteR to MR Fountam would have been made by a manager aR mtellIgent aR Rhe ObvlOuRly IR If Rhe were aware of the Impropnety of favourmg one employee over another on the baRIR of age at the tIme Rhe IR alleged to have made It The gnevor teRtIfied that he chd not reRpond to the alleged remark by RuggeRtmg to MR Fountam that there waR anythmg mappropnate about 11, nor by complammg about It to anyone elRe that day ThuR If MR Fountam waR unaware of the Impropnety of Ruch a remark at the tIme Rhe allegedly made 11, there ReemR no reaRon why Rhe would have become aware of the Impropnety before Rhe made her noteR of the dIRCUR RlOn a couple of hourR later There would be no reaRon, therefore for her to have excluded reference to It from thoRe otherwIRe fairly detailed noteR Accordmgly 8 the abRence from thoRe noteR of anythmg approxlmatmg what the gnevor allegeR MR Fountam RalCI corroborateR her demal that Rhe Raid It [15] It may be that m the daYR between the meetmg and hIR firRt allegatIOn of thIR Impropnety the gnevor came to belIeve that MR Fountam had Raid what he claImR Some URe by her of the word JunIOr for example mIght have tran" formed m hIR mmd aR eventR unfolded durmg that penod. Whether or not he truly belIeveR Rhe (lId, however I find on a balance of probabIlItleR that MR Fountam (lId not make the remark that he RaYR Rhe made WhIle Rhe (lId not gIVe a detailed explanatIOn durmg exammatIOn-m-ch18f of the conRlderatIOnR that led to the decIRIOn that the gnevor would be the one reaRRIgned, Rhe waR not preRRed durmg crORR exammatIOn to provIde Ruch an explanatIOn. It waR not put to her that there waR ill reaRon, apart from hIR age for ffilectmg the gnevor to be the one reaRRIgned. I can only RuppORe that crORR exammatIOn m that area waR aVOIded advIRedly In any event I accept MR Fountam R teRtImony that age waR not a factor many decIRIOn m whIch Rhe partIcIpated, mcludmg the decIRIOn that the gnevor would be the IDO'3 who would be reaRRIgned from mternatIOnal to AmencaR or domeRtIc dutIeR m order to meet the Rtaffing levelR Ret by the PreRldent [16] There remamR the queRtIOn whether aR the umon alRo argued, the PreRI dent R decIRIOn to mamtam the number of IDO 1 R aRRIgned to mternatIOnal du- tIeR whIle reducmg the number of IDO'3 R RO aRRIgned conRtItuted a form of age dIRcnmmatIOn of whIch the gnevor waR ultImately the vIctIm. [17] There IR a tendency for thoRe m Jumor Job claRRlficatIOnR to be younger than thoRe m hIgher Job claRRlficatIOnR, all other thmgR bemg equal. There IR, lIkewIRe a tendency for employeeR to acqUIre knowledge expenence and Remor Ity (m termR of credIt for Rervlce) aR they age It doeR not neceRRanly follow that baRmg decIRIOnR on expenence know ledge Remonty or a combmatIOn of theRe amountR to dIRcnmmatIOn on the baRIR of age LlkewIRe I am not perRuaded that a decIRIOn to reduce the number of lngher claRRlficatIOn pORltIOnR a"RIgned to a 9 partIcular area whIle mamtammg the number of lower claRf:.nficatIOn pORltIOnR m that area amountR per se to dIRcnmmatIOn on the baRIR of age [18] I have conRldered whether the added context provIded by the HR Pohcy wIth ItR referenceR to youth and youth planR and the artIcle referrmg to the youthful approach m the earher recrmtment of the IDOl R at EOI lendR greater Rlgmficance to the fact that the PreRldent R decIRIOn mcreaRed the amount of IDO 1 employment aR a percentage of the total m the area to be covered by the InternatIOnal MarketR branch. In other wordR, m that context clId that fact EB tabhRh a pruna. fane caRe of age dIRcnmmatIOn that mURt now Rucceed by reaRon of the employer R failure to cpmonRtrate affirmatIVely that there waR a non- dIRcnmmatory baRIR for the Impugned decIRIOn of OEI'R PreRldent? I have con- cluded that It clId not The HR Pohcy doeR not promote or of neceRRlty reqmre dIRcnmmatory treatment of eXIRtmg employeeR, and the artIcle about OEI'R young recrmtR provIdeR no dIrect eVIdence of Ruch dIRcnmmatIOn. Even wIth the adclItIOn of thIR context to the fact of the PreRldent R decIRIOn about the mIX of IDOl Rand IDO'3 R m OEI'R InternatIOnal MarketR branch, the aRRertIOn the de CIRIOn amounted to or effected dIRcnmmatIOn on the baRIR of age RufferR from the Rame Rhortcommg aR It would m the exampleR offered m the preVIOUR paRRage The connectIOn wIth age IR Rlmply not dIrect enough m the ClrcumRtanceR [19] ThIR gnevance IR therefore dIRmIRRed Dated at Toronto thIR 20th day of November 2000 ~( Owen V (~ray VIce-Chair 10