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HomeMy WebLinkAboutP-1999-0017.Goodall.00-09-12Decision - -. '"'-- - ...... -- , r..... E; PSGB# P/OO17/99 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Vince Goodall GIievor - and - The Crown III RIght of Ontano (Mimsm of Education and TraImng) Employer BEFORE Naresh C Agarwal, Ph.D ChaIr FOR THE Osborne Barnwell, Counsel GRIEVOR Ferguson, Barnwell Bamsters & SolIcItors FOR THE Jonathan Cocker Counsel EMPLOYER Legal ServIces Branch Management Board Secretanat HEARING November 1 and 23 1999 2 GRIEV ANCE Mr Vince Goodall filed a gnevance wIth the PublIc ServIce Gnevance Board on July 9 1999 He gneved that he was overlooked for posItIOns that became vacant whIle he was on a Leave of Absence (LOA) BACKGROUND As of October 1996 Mr Goodall was employed as one of the seven Human Resources Consultants m the Human Resources Planmng and ServIces Branch ("Branch") of the Mimstry of EducatIOn and Trammg ("Mimstry") A reorgamzatIOn ImtIatIve m the Mimstry resulted m a reductIOn of permanently funded Human Resources Consultant posItIOns from seven to four A competItIOn, restncted to the Job threatened staff, was held m November 1996 to determme WhICh mdIvIduals would be placed m the remammg four posItIOns Mr Goodall decIded at that tIme not to compete for one of these posItIOns Pursuant to that decIsIOn, he requested, and was granted, a two-year LOA from July 8 1997 to July 7 1999 to extend hIS contmuous servIce to over 10 years By her letter dated July 9 1997 Ms Maureen Edgar DIrector of the Branch, advIsed Mr Goodall that upon the conclusIOn of hIS LOA, he would be declared surplus and receIve the appropnate entItlements In May 1999 whIle Mr Goodall was stIll on leave, he became aware that there had been vacanCIes m hIS Branch for WhICh he dId not receIve notIce and WhICh had been filled through open competItIOns On June 10 1999 he sent a letter to Ms KIm BellIssImo Actmg DIrector of the Branch complammg about bemg overlooked for these posItIOns and seekmg re-mstatement to hIS prevIOus posItIOn. The text of Mr Goodall's letter IS reproduced below 'Thank. you for meetmg wIth me on Fnday May 21 1999 and for consldenng my request to tak.e my MCa credIts pnor to the explrahon of my leave of absence As I had expressed to you at the meetmg, It was not unhl that mormng It was brought to my attenhon that smce I have been on leave of absence, permanent vacanCIes for Human Resources Consultants were filled mcludmg two vacanCIes created by the reslgnahon of 3 Jane Cousens and Mary Stnzzl, two of the ongmal HRC s who had survIved the downslzmg m November 1996 I find It rather surpnsmg that the Human Resources Plannmg and ServIces Branch. a) dId not see It fit to mform me of those vacanCIes b) proceeded to have open compehhons to fill those vacanCIes mstead of remstatmg me m my Job as a Human Resources Consultant smce I am the only remammg HRC who was Impacted by the downslzmg. In hght of the above I am requestmg that my pendmg redeployment at the conclusIOn of my leave of absence be revIewed and that I be remstated m my Job as a Human Resource Consultant. By her letter dated June 29 1999 Ms BellIssImo demed Mr Goodall's request. The relevant portIOn of her letter IS reproduced below 'In your letter you have referred to several compehhons whIch occurred dunng your leave of absence By way of response, I would pomt out that at the hme of the downslzmg m the Human Resources Branch you opted not to compete for a Human Resource Consultant poslhon but chose to take a two-year leave of absence As you were on a leave of absence at the hme of the compehhons, you dId not have enhtlements to be re-deployed to such vacanCIes. Accordmgly your request to be re mstated IS demed. Subsequent to receIvmg Ms BellIsSImo's response, Mr Goodall forwarded hIS gnevance to the PublIc ServIce Gnevance Board ("Board") for adJudIcatIOn. The gnevance claims that the competItIOns for posItIOns under reference should have been closed to enable Mr Goodall to be consIdered for dIrect assIgnment. In the alternatIve, It claims that the employer should have kept Mr Goodall mformed of the vacant posItIOns and the assocIated competItIOns to enable hIm to enJoy hIS nght to apply and be consIdered for these posItIOns PRELIMINARY OBJECTION Counsel for the Employer Mr Cocker raI sed a prelImmary obJ ectIOn at the commencement of the heanng. He contended that the Board had no JunsdIctIOn to hear the claim that the Employer had a posItIve oblIgatIOn to mform Mr Goodall of the posItIOns that became avaIlable dunng hIS LOA. Mr Cocker put forward the followmg arguments m support of hIS posItIOn. FIrst, he asserted that SectIOn 34 (1) of the 4 RegulatIOn 977 under the PublIc ServIce Act lImIted the claims that could be heard by the Board to those relatmg to workmg condItIOns or terms of employment and that the claim of notIficatIOn of competItIOns dunng LOA dId not fall mto eIther category Second, he stressed that no oblIgatIOn upon the employer to keep a management employee mformed of competItIOns dunng hIs/her LOA could be found m the multItude of polIcIes governmg the management sector ThIrd, Mr Crocker submItted that no oral contractual agreement eXIsted between the Gnevor and the Employer oblIgmg the Employer to keep the Gnevor mformed of the competItIOns whIle he was on hIS LOA. Finally he pomted out that the competItIOns under reference were open, posted on the bulletm boards, and publIshed m the government newsletters Therefore, he contended that the Gnevor certamly had access to mformatIOn about these competItIOns Counsel for the Gnevor Mr Barnwell made the followmg submIssIOn wIth respect to the prelImmary obJectIOn raised by the Employer FIrst, he explamed that by letter of July 9 1997 from the DIrector of the Branch (Ms Edgar) Mr Goodall had been advIsed that he would be declared surplus upon completIOn of hIS LOA on July 7 1999 Mr Barnwell claimed that the Impendmg surplus sItuatIOn that Mr Goodall was faced wIth gave hIm the nght to be consIdered for dIrect assIgnment to a vacant posItIOn under SectIOn 14 (2) of RegulatIOn 977 and the nght to be mcluded m all competItIOns for employment m the cIvIl servIce under SectIOn 14 (6) of the same RegulatIOn. He submItted that Mr Goodall was unable to enJoy these nghts, as he was not kept advIsed of the posItIOns that became avaIlable whIle he was on hIS LOA. Second, Mr Barnwell explamed that Mr Goodall had taken LOA to aVOId the nsk of bemg declared surplus before completmg 10 years of contmuous servIce WIth the government. He contended that the DIrector of the Branch, Ms Edgar had dIrect knowledge of the reason behmd Mr Goodall gomg on LOA and therefore ought to have mformed hIm of the vacanCIes ansmg dunng hIS LOA. ThIrd, Mr Barnwell submItted that keepmg Mr Goodall mformed of the vacanCIes whIle he was on LOA was a matter of procedural fairness, WhICh must be respected m the employment context as employment IS central to one's bemg. Here he cIted two cases m support of hIS contentIOn. Wallace v. Umted Gram Growers Ltd. (c.o.b. PublIc Press) [1997] 3 S C.R. 701 and Misfud v. MacMillan Bathurst Inc. (C.A.) [1989] 70 O.R. (2d) 5 701 Finally Mr Barnwell contended that the PublIc ServIce Act and RegulatIOn 977 under It clearly specIfy who could not file a gnevance for adJudIcatIOn by the Board and that none of those exclusIOns applIed to Mr Goodall In reply Mr Cocker mamtamed that the extent to WhICh the gnevance asserted a posItIve oblIgatIOn on the part of the Employer to mform the Gnevor of the competItIOns whIle he was on hIS LOA, the Board had no JunsdIctIOn to hear It. He reIterated that SectIOn 34 (1) of RegulatIOn 977 under the PublIc ServIce Act lImIts the gnevances that could be heard by the Board to those relatmg to workmg condItIOns or terms of employment, and that the Gnevor's claim under reference dId not fall mto eIther category Accordmgly Mr Cocker contmued hIS prelImmary obJectIOn and asked the Board to rule on It. Followmg Mr Cocker's reply submIssIOn, Mr Barnwell mformed the Board that the Gnevor had decIded to wIthdraw part of hIS gnevance, WhICh claimed that the Employer was oblIgated to keep hIm mformed of the competItIOns whIle he was on hIS LOA. Thus, there was no need for thIS Board to consIder the prelImmary obJectIOn raised by the Employer and Issue a rulIng on It. The Board then proceeded to hear the remammg part of Mr Goodall gnevance EVIDENCE The followmg three mdIvIduals gave eVIdence at the heanng ofMr Goodall's gnevance On Behalf of the Gnevor . Mr Vince Goodall, Gnevor On Behalf of the Emplover . Mr Stephen Brown, PolIcy AdvISor Staffing and Development Branch, Management Board Secretanat. . Ms PatncIa Macdonald-Rea, Manager Human Resources Planmng and ServIces Branch, Mimstry of EducatIOn and Trammg. 6 Mr Goodall began hIS testImony by hIghlIghtmg hIS educatIOnal background and career hIStOry He stated that he obtamed a Bachelor's degree m Personnel and Industnal RelatIOns from IndIana UmversIty m 1964 and had over 19 years of work expenence m the human resources field pnor to Jommg the Human Resources Planmng ServIces Branch m the Mimstry of EducatIOn and Trammg m 1988 At the tIme of downsIzmg m hIS Branch m October 1996 Mr Goodall held the posItIOn of Human Resources Consultant. He outlIned hIS key responsIbIlItIes m thIS posItIOn to mclude gIvmg advIce and consultatIOn to clIent managers on redeployment polIcIes and work wIth them m Issumg surplus notIces, and arrangmg for trammg, dIrect assIgnment and mtervIews for surplus employees A competItIOn restncted to the Job threatened Human Resource Consultants m the Branch was held m November 1996 to determme WhICh ones among them would be placed mto the four posItIOns remammg after downsIzmg. In hIS testImony Mr Goodall explamed why he decIded not to compete for one of these posItIOns and to go on a two-year LOA mstead. He said that If he were unsuccessful m the competItIOn, he would have been declared surplus He went on LOA to aVOId thIS potentIal nsk and mcrease hIS contmuous servIce to over 10 years to ensure elIgIbIlIty for post-retIrement dental and medIcal benefits ThIS, Mr Goodall stated, was very Important to hIm at hIS advanced age of 59 at the tIme Mr Goodall testIfied that pnor to proceedmg on hIS LOA, he was on sIck leave from January through June 1997 Dunng thIS penod, he became aware of an upcommg open competItIOn m a telephone conversatIOn wIth Ms Macdonald-Rea. Mr Goodall felt that thIS competItIOn should have been closed for hIm to be consIdered for dIrect placement, as the other two Human Resource consultants affected by downsIzmg had already left the cIvIl servIce He testIfied that when he questIOned Ms Macdonald-Rea why It wasn't so her reply was that It was the Mimstry's decIsIOn. In cross-exammatIOn, Mr Goodall was asked why he dId not compete for thIS posItIOn. His explanatIOn was that If he were not 7 successful, he would have been declared surplus and would have, as a consequence, lost post-retIrement medIcal and dental benefits Mr Goodall commenced hIS two-year LOA on July 8 1997 He testIfied that dunng hIS LOA, he dId not mamtam touch wIth hIS Branch, but he expected hIS Manager to advIse hIm of any vacanCIes ansmg m the Branch gIven hIS Impendmg surplus sItuatIOn. He gave eVIdence that m May 1999 he became aware of several Human Resource Consultant vacanCIes that had been filled through open competItIOns dunng hIS LOA. In a letter dated June 10 1999 Mr Goodall complamed to Ms BellIssImo about not bemg mformed about these vacanCIes and dIrectly placed mto one of those posItIOns He requested that he be re-mstated as a Human Resource Consultant. Ms BellIssImo demed hIS request m her letter dated June 29 1999 explammg that the entItlement to be deployed to such vacanCIes was not avaIlable to hIm as he was on LOA and not yet a surplus employee Excerpts of thIS correspondence were reproduced earlIer m thIS report. In cross-exammatIOn, Mr Goodall acknowledged that even If he had become aware of the vacanCIes m questIOn, he would not have competed for them for the same reason as he gave for not competmg for the vacancy that he came to know about from Ms Macdonald-Rea m 1997 That IS, he wanted to aVOId the nsk of bemg declared surplus and, as a consequence, losmg post-retIrement medIcal and dental benefits In cross-exammatIOn, Mr Goodall was questIOned about the source of hIS expectatIOn that whIle on LOA and pnor to bemg declared surplus, he was entItled to be consIdered for dIrect placement mto vacanCIes He responded that hIS expectatIOn was based on a logIcal, Just, reasonable, and fair perspectIve Employer's Counsel referred Mr Goodall to the Employment TransItIOn of Management & Excluded Employees DIrectIve Issued by the Staffing and Development ServIces Branch of the Management Board Secretanat (MBS) He drew Mr Goodall's attentIOn m partIcular to the sectIOn on DIrect AssIgnment and asked hIm If he was covered by It. Mr Goodall said he was not, because It applIed to surplus employees and he was not a surplus employee yet. However he added that lOgIC and commonsense would suggest that he should have been covered by It because of hIS Impendmg surplus sItuatIOn. 8 In hIS eVIdence, Mr Brown testIfied that pnor to hIS current posItIOn, he was employed m the Corporate Programs and ServIces Umt of the MBS from December 1993 to May 1999 He mdIcated that m thIS Job he was responsible for redeployment and surplus Issues for management and excluded employees throughout the Ontano PublIc ServIce and therefore had to frequently refer to and apply the Employment TransItIOn of Management & Excluded Employees DIrectIve Mr Brown's eVIdence was that thIS DIrectIve covered only those employees who had receIved a formal notIce of release/surplus He pomted out that a formal notIce of release must mclude these elements notIce penod, entItlement optIOns bemg offered to the employee (e g. pay m lIeu of notIce, deployment/dIrect assIgnment etc ), and date of release Mr Brown further testIfied that dunng the notIce penod, the employee would be elIgIble for dIrect assIgnment to vacancIes If a) he/she had chosen that optIOn when served a formal notIce of release and b) satIsfied the selectIOn cntena establIshed for those vacanCIes He asserted that the dIrect assIgnment optIOn was not avaIlable pnor to receIvmg a formal notIce of release Mr Brown was asked m hIS cross-exammatIOn If the letter that the Branch DIrector Ms Maureen Edgar had sent Mr Goodall advIsmg hIm that he would be declared surplus upon completmg hIS two-year LOA could be construed as a notIce of release His answer was that It could be, but he made It clear m hIS re-exammatIOn by the Employer's Counsel that the letter dId not constItute a formal notIce of release Mr Brown explamed that the letter lacked the elements that he had earlIer IdentIfied m hIS testImony as bemg necessary components of such a notIce I e formal notIce penod, optIOns concermng entItlements bemg offered to the employee, and date of release He pomted out that the letter showed only the date when Mr Goodall's two-year LOA was to end. Mr Brown stressed that thIS dId not mean that the notIce penod would automatIcally begm as of that date, as Mr Goodall's LOA could be extended or the sItuatIOn m the Branch could change, makmg Mr Goodall's release unnecessary 9 In hIS cross-exammatIOn, Mr Brown was referred to RegulatIOn 14 2 under the PublIc ServIce Act, WhICh uses the wordmg "Where It IS proposed to release a full-tIme cIvIl servant" and goes on to provIde dIrect assIgnment entItlement for such an employee under certam condItIOns He was asked whether the wordmg would cover some one lIke Mr Goodall, who had been told that he would be declared surplus upon completIOn of hIS LOA. Mr Brown's response was that the wordmg covered only those who had been gIven a formal notIce of release or surplus wIth those elements specIfied, WhICh he descnbed earlIer m hIS testImony He asserted that an advanced warnmg of release wIthout these elements could not be consIdered a formal notIce Ms Macdonald-Rea mdIcated m her testImony that she Jomed her current posItIOn of Manager Human Resources Planmng and ServIces Branch m November 1996 and m that capacIty was Mr Goodall's supervIsor for a short whIle before he went on leave She testIfied that she was famIlIar wIth how the Ontano PublIc ServIce provIded for deployment entItlements for surplus employees through her expenence m managenal posItIOns she had held over the years m the government. Ms Macdonald-Rea testIfied that Mr Goodall was not elIgIble for dIrect assIgnment to posItIOns becommg avaIlable dunng hIS LOA. She explamed that he would become so only after he receIved hIS formal notIce of release and elected the optIOn relatmg to dIrect assIgnment. Ms Macdonald-Rea was copIed on the letter that Ms Edgar sent Mr Goodall on July 9 1997 advIsmg hIm that he would be declared surplus upon the completIOn of hIS two-year LOA on July 8 1999 Accordmg to her testImony thIS letter could not be regarded as a formal notIce of surplus for deployment purposes because It contamed neIther a notIce penod nor entItlement optIOns Ms Macdonald-Rea testIfied that Mr Goodall could have competed m November 1996 for the four remammg posItIOns along wIth hIS other Job threatened colleagues and could have applIed for LOA If he were not successful She explamed that there was a penod of 2 to 3 months between the competItIOn and Issuance of surplus notIces to the unsuccessful candIdates 10 Ms Macdonald-Rea explamed that untIl Mr Goodall was formally declared surplus, he would contmue to be classIfied as a regular employee wIth all the nghts mcludmg bemg able to apply for posItIOns wIthm the cIvIl servIce ThIS would be equally true dunng hIS LOA. Ms Macdonald-Rea outlIned two alternatIves that Mr Goodall could follow wIth respect to findmg a Job dunng hIS LOA. FIrst, he could partIcIpate m open competItIOns for avaIlable posItIOns If successful, he could termmate hIS LOA and accept the posItIOn. If not successful, he would contmue to remam on hIS LOA. Second, Mr Goodall could termmate hIS LOA at the tIme of a vacancy becommg avaIlable, get a formal notIce of release, and elect the optIOn of redeployment offered m that notIce In thIS way Mr Goodall could make hImself elIgible for consIderatIOn for dIrect assIgnment to that posItIOn. When asked m cross-exammatIOn whether these alternatIves, as she outlIned them, were wntten anywhere, Ms Macdonald-Rea responded "no not that specIfically" However m her re-exammatIOn, she cIted a provIsIOn descnbed on pages 7 and 8 of the Employment TransItIOn of Management & Excluded Employees DIrectIve as the authonty for suggestmg that Mr Goodall could tngger a surplus notIce by termmatmg hIS LOA. ThIS provIsIOn of IS tItled "Treatment of Surplus NotIces Issued Before an Employee Goes on A Leave of Absence or a Temporary AssIgnment" Ms Macdonald- Rea added that Human Resource Consultants lIke Mr Goodall should be famIlIar wIth thIS provIsIOn. The Gnevor's Counsel also asked her If she ever counseled Mr Goodall about these alternatIves Her answer was that she dId not because he had already made hIS decIsIOn to go on a LOA before she became hIS Manager FINAL ARGUMENT Mr Barnwell made the followmg submIssIOns on behalf of hIS clIent, Mr Goodall He contended that It was reasonable for Mr Goodall's to expect that whIle he was on hIS LOA, If a posItIOn became avaIlable, he would be placed mto It. Mr Barnwell argued that when a person's posItIOn was bemg elImmated due to restructunng m the orgamzatIOn, If a comparable posItIOn became avaIlable, eqUIty demanded that he/she 11 should be assIgned to that posItIOn. He submItted that people m authonty m the Branch knew why Mr Goodall had gone on a two-year LOA. Accordmgly they should have consIdered hIm for dIrect assIgnment to one of the posItIOns that dId become avaIlable dunng hIS leave penod. Mr Barnwell pomted out that Mr Goodall had certam perceptIOns and he acted based upon those dunng hIS LOA. In her testImony Ms Macdonald-Rea gave an Idea of how Mr Goodall could have planned hIS actIOns better Ie he could have partIcIpated m open competItIOns wIthout JeopardlZlng hIS LOA, or he could have termmated hIS LOA at the tIme of a vacancy get a formal notIce of release, and become elIgible for dIrect assIgnment to that posItIOn. Mr Barnwell referred to the letters dated January 9 1997 and July 9 1997 wntten by the Branch DIrector Ms Maureen Edgar (ExhIbItS 2 and 3) and the letter dated July 7 1997 by Deputy Mimster Ms Veromca Lacey (ExhibIt 6) to Mr Goodall concermng hIS LOA. He asserted that none of these letters advIsed Mr Goodall of the optIOns that Ms Macdonald-Rea outlIned m her testImony Mr Barnwell further asserted that Ms Macdonald-Rea herself had an opportumty to advIse Mr Goodall when the two had a conversatIOn m July 1997 but that dId not happen. Mr Barnwell submItted that the Employer had the responsibIlIty to mform and counsel Mr Goodall of the optIOns avaIlable to hIm dunng hIS LOA and faIlure to carry out thIS responsibIlIty Imposed an enormous cost on Mr Goodall He contended that accordmg to prmcIples of procedural JustIce, the onus rests on employers to keep employees duly mformed especIally when theIr basIc nght to lIvelIhood IS bemg threatened. Mr Barnwell cIted Wallace v. Umted Gram Growers Ltd. (c.o.b. PublIc Press) [1997] 3 S C.R. 701 m partIcular paragraphs 91 through 93 95 and 98 m support of hIS contentIOn. Mr Cocker made the followmg submIssIOns on behalf of the Employer First, he contended that Mr Goodall dId not have the same entItlements as those of a surplus employee He added that bemg a semor Human Resource Consultant, Mr Goodall should have known that he was not elIgIble to be consIdered for dIrect assIgnment 12 becommg avaIlable dunng hIS LOA untIl he was formally declared surplus Second, Mr Cocker contended that from the final submIssIOns made by Mr Barnwell, It appeared that the focus of Mr Goodall's gnevance had shIfted from a claim concernmg entItlements under SectIOn 14 (2) of RegulatIOn 977 under the PublIc ServIce Act to a claim concermng Employer's oblIgatIOn to mform Mr Goodall of scenanos re hIS LOA as outlIned by Macdonald-Rea m her testImony He asserted that such an oblIgatIOn on the part of the Employer could not be found many governmg legIslatIOn or polIcy nor could It be vIewed as a term of employment or workmg condItIOn under SectIOn 34 (1) of RegulatIOn 977 As such he submItted that thIS Board dId not have JunsdIctIOn to hear Mr Goodall's gnevance as It pertamed to thIS oblIgatIOn. Mr Cocker addItIOnally submItted that It was unreasonable to Impose such an oblIgatIOn on the Employer ThIrd, Mr Cocker stated that dunng hIS LOA, Mr Goodall never wrote a letter or made a phone call to mqUIre about Jobs or took the mItIatIve to find out the ImplIcatIOns of what he was thmkmg of domg or not domg. Accordmgly he claimed that Mr Goodall dId nothmg to meet hIS oblIgatIOns Fourth, Mr Cocker questIOned the tImelIness of the gnevance He submItted that Mr Goodall became aware of the Job vacanCIes for WhICh he claimed he had been overlooked on May 21 1999 but he dId not file a gnevance wIth the Board untIl July 9 1999 ThIS, Mr Cocker pomted out was beyond the 14-day lImIt stIpulated for filIng gnevances m SectIOn 34 (1) of RegulatIOn 977 He also claimed that thIS Board dId not have power to extend the tIme lImIt on ItS own motIOn, as SectIOn 54(b) of RegulatIOn 977 allowmg such power was repealed m 1996 Mr Cocker contented that thIS Board had only those powers, WhICh were conferred on It by statute He cIted CanadIan Broadcastmg CorporatIOn et al v. Cordeau et al [1977] S C C 101 D.L.R. (3d) m support of hIS contentIOn. In reply Mr Barnwell submItted that the contentIOn that a term of employment or a workmg condItIOn about WhICh an employee could gneve must be found m statute could not be supported m law He took the VIew that had those m authonty put theIr mmds to Mr Goodall's sItuatIOn, they should have been mformed of how he should have planned hIS Job search behavIOur dunng hIS LOA and advIsed hIm accordmgly Mr Barnwell 13 cIted Misfud v. MacMillan Bathurst Inc. (C.A.) {l989] 70 O.R. (2d) 701 m support of hIS VIew Mr Barnwell also dIsputed Mr Cocker's claim that Mr Goodall's was untImely He contended that the relevant SectIOn of RegulatIOn 977 to Judge tImelIness of filIng a gnevance wIth the Board was 36 (1) and not SectIOn 34 (1) as suggested by Mr Cocker SectIOn 36 (1) stIpulates that a gnevor may file hIS gnevance wIth the Board wIthm 14 days of heanng the decIsIOn of the Deputy Mimster concernmg hIS complamt. Mr Barnwell explamed that Mr Goodall sent hIS complamt about bemg overlooked for vacant posItIOns on June 10 1999 to Ms BellIssImo Actmg DIrector of the Branch. Her reply reJectmg hIS complamt was sent on June 29 1999 Mr Barnwell noted that Mr Goodall filed hIS gnevance wIth the Board on July 7 1999 WhICh was wIthm the 14-day tIme lImIt as stIpulated m SectIOn 36 (1) of RegulatIOn 977 DECISION A. Preliminary Issues Two Issues raised by the Employer's Counsel, Mr Cocker need to be decIded at the outset. These are tImelIness of the gnevance and thIS Board's JunsdIctIOn to hear one part of the gnevance ConsIderatIOn of and decIsIOn on the ments of the gnevance would follow dependmg upon the rulIngs Issued on these two Issues Mr Cocker claimed that Mr Goodall's gnevance was untImely and cIted SectIOn 34 (1) of RegulatIOn 977 m support of hIS claim. SectIOn 34 (1) reads as follows A person described m subsechon (2) who IS aggrIeved about a workmg condlhon or term of hIS or her employment may file a gnevance wIth hIS or her deputy wlthm 14 days after becommg aware of the workmg condlhon or term of employment glvmg nse to the gnevance 14 Mr Cocker stated that the eVIdence placed before the Board showed that Mr Goodall became aware of the Issue about WhICh he was gnevmg on May 21 1999 but he dId not file hIS gnevance wIth the Board untIl July 9 1999 ThIS he said was clearly well over the 14-day lImIt specIfied m SectIOn 34 (1) The Board IS of the VIew that Part V of RegulatIOn 977 specIfies a two-stage process for filIng a gnevance and at each stage a 14-day tIme lImIt IS specIfied. SectIOn 34 (1) cIted by Mr Cocker relates to the first step I e filIng a gnevance WIth the deputy The second stage relates to filIng of that gnevance wIth the Board If the gnevor IS not satIsfied wIth the outcome at the first stage SectIOn 36 (1) of RegulatIOn 977 IS the relevant provIsIOn for the second stage, and It reads as follows A gnevor who IS not sahsfied WIth the decIsIOn of the deputy mlmster may apply to the Pubhc ServIce Gnevance Board wlthm 14 days after recelvmg the decIsIOn for a heanng about hIS or her gnevance The eVIdence presented at the heanng mdIcates that Mr Goodall submItted hIS gnevance to Actmg DIrector of hIS Branch, Ms BellIssImo on June 10 1999 The Board takes the VIew that Ms BellIssImo could be consIdered as the delegate of the deputy mImster for the purposes of SectIOn 34 (1) of RegulatIOn 977 ThIS means that Mr Goodall filed hIS gnevance at the first stage after 19 days of becommg aware of the factors gIvmg nse to hIS gnevance, WhICh IS 5 days beyond the tIme lImIt specIfied m SectIOn 34 (1) Ms BellIssImo sent her response on June 29 1999 m WhICh she demed Mr Goodall's gnevance, but wIthout raIsmg the Issue of 5 days of delay m filIng the gnevance Mr Barnwell submItted that It was for Ms BellIssImo to obJect to the delay m filIng the gnevance at that stage of the process, but she dIdn't. The eVIdence presented at the heanng mdIcates that Mr Goodall filed hIS gnevance wIth the Board on July 9 1999 WhICh adds up to 10 days from the date of Ms BellIssImo's response Mr Barnwell submItted that the Board should Judge the tImelIness of Mr Goodall's gnevance wIth reference SectIOn 36 (1) of RegulatIOn 977 and that Mr Goodall's gnevance was filed wIth the Board wIthm the 14-day tIme stIpulated therem. 15 This Board agrees with the submissions made by Mr Barnwell on the issue of timeliness and finds that Mr Goodall's grievance was filed with the Board within the prescribed time limits. Havmg Issued thIS rulIng, I wIsh to comment on the questIOn of the Board's power to extend tIme lImIts for filIng gnevances, as stIpulated m RegulatIOn 977 In hIS submISSIOns, Mr Cocker asserted that the Board could not extend tIme lImIts on ItS own motIOn because ItS power to do so ceased to eXIst WIth the repeal of SectIOn 54 (2) of RegulatIOn 977 m 1996 I am of the VIew that whIle the rather archaic language of SectIOn 54 (2) has been removed, It does not change the Board's dIscretIOn to extend tIme lImIts m appropnate cases If the mtent behmd repealIng SectIOn 54 (2) were to remove thIS dIscretIOn entIrely the language of SectIOns 34 (1) and 36 (2) would be mandatory These SectIOns use the permISSIve term 'may' as opposed to the mandatory term 'shall' The Board has held thIS VIew m at least two pnor cases Johnston and Vipan (1999) P/0003/99 and Johnson and SmIth (1999) P/0001/99 P/0005/99 The second Issue raised by Mr Cocker that needs to be addressed at the outset pertams to JunsdIctIOn of the Board to hear part of Mr Goodall's gnevance, WhICh relates to a claim concermng Employer oblIgatIOn to mform and counsel hIm on certam matters relatmg to hIS LOA. In hIS final argument, Mr Cocker contended that such oblIgatIOn could not be found many governmg legIslatIOn or polIcy nor could It be termed as a workmg condItIOn or term of employment under SectIOn 34 (1) of RegulatIOn 977 Thus, he submItted that the Board lacked JunsdIctIOn to hear It. The Board has revIewed RegulatIOn 977 and notes that the matter of LOA forms part of Part VI where vanous employee benefits avaIlable to elIgIble employees along wIth the polIcIes and procedures govermng them are dIscussed. Mr Goodall's claim, on the face of It, mvolves questIOns about the admmIstratIOn of LOA polIcIes and procedures to thIS partIcular case The Board considers these questions to fall under the scope of Section 34 (1) of Regulation 977 and accordingly rules that it has jurisdiction to hear the claim. 16 B. Merits of the Grievance Havmg Issued the above rulIngs on prelImmary matters, the Board can proceed to consIder and decIde on the ments Mr Goodall's gnevance There are essentIally two Issues that are raised m the gnevance one relatmg to Mr Goodall's deployment entItlements dunng hIS LOA, and the other relatmg to the Employer's oblIgatIOn to mform and counsel Mr Goodall on Job search scenanos open to hIm dunng hIS LOA. The Board's findmgs on each of these Issues along wIth the underlymg reasomng are dIscussed below Deplovment EntItlements A number of posItIOns became avaIlable whIle Mr Goodall was on hIS LOA and these were filled through open competItIOns Throughout hIS testImony gIven at the Heanng, Mr Goodall mamtamed that these competItIOns should have been closed to enable hIm to be consIdered for dIrect assIgnment. His posItIOn, as stated m hIS gnevance letter dated July 9 1999 and reIterated by hIS Counsel, Mr Barnwell m hIS opemng statement at the Heanng, IS that hIS Impendmg surplus sItuatIOn gave hIm the nght to such consIderatIOn under SectIOn 14 (2) of RegulatIOn 977 Based on a thorough reVIew of all the oral and documentary eVIdence placed before It, this Board finds that Mr Goodall did not have this right during his LOA. The reasons for this finding are discussed below It IS eVIdent that surplus employees have the nght, under certam condItIOns, to be dIrectly assIgned to vacanCIes becommg avaIlable ThIS nght IS provIded for m SectIOn 14 (2) of RegulatIOn 977 under the PublIc ServIce Act (PSA), WhICh reads as follows 'Where It IS proposed to release a full-hme cIvIl servant and many mmlstry to whIch he or she apphes there IS a vacant poslhon, (a) for whIch she IS quahfied, (b) for whIch he or she IS acceptable to the deputy mmlster of the mmlstry and (c) m the same class as or m a class wIth a maXImum salary not greater than that of the poslhon occupIed by the cIvIl servant, the deputy mmlster of the mmlstry shall transfer the cIvil servant to the vacant poslhon 17 The above posItIOn IS also reflected m a government document tItled "Employment TransItIOn of Management & Excluded Employees DIrectIve" The SectIOn on "DIrect AssIgnment" of thIS document specIfies the admmIstratIve polIcIes and procedures to be followed m Implementmg the reqUIrement. The questIOn before the Board then IS whether Mr Goodall could be deemed to be a surplus employee or not dunng hIS LOA. If the answer were yes, he would be entItled to be consIdered for dIrect assIgnment to posItIOns becommg avaIlable dunng hIS LOA. Both Mr Brown and Ms Macdonald-Rea testIfied that dunng hIS LOA, Mr Goodall contmued to be a regular employee and dId not have the status of a surplus employee, as he had not been released from hIS posItIOn and gIven a formal notIce to thIS effect. They further testIfied that the July 9 1997 letter of the Branch DIrector Ms Edgar to Ms Goodall (ExhIbIt 3) could not be regarded as a formal notIce of release because It dId not contam these necessary elements notIce penod, proposed date of release, and entItlement optIOns bemg provIded. ThIS Board also conducted a thorough reVIew of SectIOn 14 (2) of RegulatIOn 977 under the PSA and the relevant portIOns of the Employment TransItIOn of Management & Excluded Employees DIrectIve to make ItS own determmatIOn of Mr Goodall's status and deployment entItlement dunng hIS leave penod. Based on thI s reVIew It reached the same conclusIOn that Mr Goodall was not a surplus employee whIle on LOA and, therefore, dId not have the legal nght to be consIdered for dIrect assIgnment to vacancIes ansmg dunng thIS tIme penod. The Board also noted that m hIS cross-exammatIOn, Mr Goodall acknowledged that the dIrect assIgnment polIcy and procedures as provIded m the "Employment TransItIOn of Management & Excluded Employees DIrectIve" dId not cover hIm, as he was not yet a surplus employee He also acknowledged that he was not aware of any other polIcy that covered hIS sItuatIOn. However he contended that m VIew of hIS Impendmg surplus sItuatIOn, It was only fair and Just that he too should have been gIven the dIrect assIgnment entItlement avaIlable to surplus employees under the eXIstmg polIcy Even If 18 thIS Board were to find ment m Mr Goodall's contentIOn, It could not rule m hIS favour because domg so would reqUIre It to take on a polIcy-settmg role Such a role IS beyond the Board's mandated authonty to assume Emplover's OblIgatIOn to Inform and AdvIse The second Issue raised m the present gnevance relates to the claim made by Mr Barnwell that the Employer had an oblIgatIOn to mform and counsel Mr Goodall about Job search scenanos open to hIm dunng hIS LOA. ThIS claim was not part of the ongmal gnevance as filed wIth the Board on July 9 1999 It arose from the testImony gIven by Ms Macdonald-Rea at the Heanng m WhICh she outlIned these two alternatIve ways Mr Goodall could have gone about findmg a posItIOn dunng hIS LOA. a) Mr Goodall could have competed for posItIOns becommg avaIlable If he was successful m obtammg a posItIOn, he could termmate hIS LOA and accept the posItIOn. If he were not successful, he would sImply contmue to be on hIS LOA, and 2) Mr Goodall could have termmated hIS LOA at the tIme of a posItIOn becommg avaIlable He would then be Issued a formal notIce of surplus wIth a deployment optIOn by choosmg WhICh he could receIve consIderatIOn for dIrect assIgnment to that posItIOn. Mr Barnwell's claim IS that the Employer had an oblIgatIOn to mform and advIse Mr Goodall of these alternatIves so that he could have planned hIS actIOns better dunng hIS LOA. Taking into consideration all the evidence and submissions presented at the Hearing, this Board does not find merit in this claim. The reasoning behind this conclusion is explained below It IS ObVIOUS from Mr Goodall's testImony that he mcorrectly belIeved that If he competed for a posItIOn dunng hIS LOA and was not successful m obtammg It, he would be declared surplus and would, as a consequence, fall to complete the 10 years of contmuous servIce needed to gam elIgibIlIty for medIcal and dental retIrement benefits In effect, Mr Goodall appeared to have mIstakenly assumed that hIS LOA would be automatIcally termmated the moment he competed for a posItIOn. The Board IS of the VIew that Mr Goodall should have known that he remamed an employee dunng hIS LOA 19 and therefore had all the nghts of an employee mcludmg the nght to compete for posItIOns WhIle It IS not clear what caused Mr Goodall to make the mcorrect assumptIOn, the Board has no basIs to find that the Employer was m any way responsible for It. The Gnevor made no such allegatIOn agamst the Employer nor was there any eVIdence presented WhICh mIght suggest that the Employer somehow played a role m causmg Mr Goodall to mIsperceIve hIS sItuatIOn. It IS also apparent from Mr Barnwell's submIssIOns that that Mr Goodall was not even aware of the second alternatIve Ms Macdonald-Rea outlIned m her testImony That IS, he could termmate hIS LOA at the tIme of a posItIOn becommg avaIlable, get a surplus notIce, and, as a result, be consIdered for dIrect assIgnment to that posItIOn. The Board IS of the VIew that Mr Goodall should have known about thIS alternatIve for at least two reasons One, he decIded to go on a LOA for two years to delay the Issuance of a surplus notIce to hIm, so It should be ObVIOUS to hIm that he could tngger the Issuance of thIS notIce by termmatmg hIS LOA at any tIme Two Mr Goodall had access to and also as a semor Human Resource Consultant should be famIlIar wIth, the document "Employment TransItIOn of Management & Excluded Employees DIrectIve" Pages 7 and 8 of thIS DIrectIve contam mformatIOn relevant to the alternatIve The Board IS also not convmced that even If Mr Goodall were aware of the alternatIve m questIOn, he would have acted accordmg to It. It noted the explanatIOn that Mr Goodall gave as to why he decIded not to compete m November 1996 for one of the 4 Human Resource Consultant posItIOns remammg after downsIzmg m the Branch but to go on a two-year LOA mstead. Had he competed and not been successful, he would have been declared surplus Mr Goodall went on LOA to aVOId the nsk of bemg declared surplus before completmg ten years of contmuous servIce, needed to qualIfy for post-retIrement medIcal and dental benefits These benefits, he testIfied, were extremely Important to hIm because of hIS advanced age and approachmg date of retIrement. It IS true that termmatmg hIS LOA at the tIme of a posItIOn becommg avaIlable would have enabled Mr Goodall to be consIdered for dIrect assIgnment to that posItIOn. However It also would have exposed hIm at the same tIme to the nsk of losmg post-retIrement medIcal 20 and dental benefits, WhICh he appeared to value hIghly The reason for thIS IS that bemg consIdered for dIrect assIgnment to a posItIOn IS not the same thmg as bemg guaranteed that posItIOn. Both Mr Brown and Ms Macdonald-Rea testIfied to thIS effect. The Board's own reVIew of the legIslatIOn and polIcy govermng dIrect assIgnment also mdIcates the same to be true Finally It IS eVIdent that Mr Goodall made certam assumptIOns about what he could or could not do dunng hIS LOA and he acted accordmgly He made vIrtually no effort to venfy hIS assumptIOns or find out the ImplIcatIOns of what he was thmkmg of domg or not domg. Accordmg to hIS own testImony Mr Goodall mamtamed very lIttle contact wIth the Employer dunng hIS leave penod. He contacted Ms Macdonald-Rea m or about June 1997 when he was on hIS sIck leave, Just pnor to the commencement of hIS two-year LOA begmmng on July 8 1997 Dunng thIS conversatIOn, Mr Goodall was advIsed of an upcommg competItIOn for a posItIOn, WhIch he refused to enter The only other contact he ImtIated wIth the Employer was on May 21 1999 barely 6 weeks pnor to when hIS LOA was scheduled to end. He vIsIted the Branch for a meetmg wIth Ms BellIssImo dunng WhICh he became aware that several vacanCIes had ansen m the Branch and elsewhere m the cIvIl servIce dunng hIS LOA and that these had been filled through open competItIOns Dunng these only two contacts wIth the Employer Mr Goodall focused on essentIally one Issue Ie questIOmng why the competItIOns for the vacanCIes m questIOn were not closed so that he could be consIdered for dIrect assIgnment to those posItIOns The Board agrees that the Employer had a responsIbIlIty to counsel Mr Goodall but It IS of the VIew that Mr Goodall gave no opportumty to the Employer to become aware that he needed counsel and advIce Thus, the Board IS not prepared to find that the Employer dId not meet ItS oblIgatIOn to counsel Mr Goodall In summary, Mr Goodall's gnevance raised two claims One relates to hIS entItlements under SectIOn 14 (2) of RegulatIOn 977 under the PublIc ServIce Act and the other to the Employer's oblIgatIOn to mform and counsel hIm about two specIfic Job search scenanos that he could pursue dunng hIS two-year leave of absence After takmg mto account all 21 of the eVIdence and submIssIOns and for the reasons gIven above the Board reJects both these claims Accordmgly the present gnevance IS demed. Dated at Toronto thIS 12th day of September 2000 ~ 11. ~: .- .,... . - -~ . .- ~ - - Naresh C Agarwal, Ph. D Chair