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HomeMy WebLinkAboutP-2001-0025.Asselin et al.06-01-27 Decision Public Service Commission des Nj Grievance Board griefs de la fonction publique Bureau 600 ~ Suite 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 P-2001-0025 P-2001-0032, P-2001-0033 P-2001-0034 P-2001-0035 P-2004-3968 P-2004-3969 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Tim AsselIn, Bnan Patterson, DavId Lalonde, Terry Kutchaw Robert Nixon, Michael Verch, Dave MacGregor Grievors - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Deborah J D LeIghton Vice-Chair FOR THE GRIEVORS Andrew Camman PolIshuk, Camman and Steele BarrIsters and SOlICItorS FOR THE EMPLOYER Sean Kearney Semor Counsel Mimstry of Government ServIces HEARING January 10 2006 2 DeCISIon The Issue before me IS whether the employer has breached a memorandum of settlement sIgned on October 16 2002 by the partIes The partIes agreed In the memorandum to full and final settlement of remedIal Issues ansIng as a result ofa decIsIOn of the board rendered on January 14 2002, Williams et al andMinistlY of Public Safety and Security P/0008/01 et al The partIes agreed In paragraph seven that I would remaIn seIzed wIth respect to any dIspute ansIng from the memorandum Such a dIspute arose In early 2005 and the gnevors filed theIr gnevances wIth the board on Apn112, 2005 The partIes also agreed that Mr Dave MacGregor's gnevance [P-2004- 3969] ImtIally grouped wIth the gnevors here, IS dIfferent and should be heard separately GIven the need for dIsclosure, thIS gnevance dId not proceed. With regard to Mr Michael Verch's gnevance [P-2004-3968] the employer raised a motIOn to dIsmIss hIS gnevance at the outset of the heanng. ThIS motIOn wIll be addressed at the end of the decIsIOn. The gnevors, all OperatIOnal Managers (OMI6's) assIgned to St. Lawrence Valley CorrectIOnal and Treatment Centre, take the posItIOn that the employer has breached the memorandum by requmng them to partIcIpate In a recent selectIOn process for thIrteen OM16 posItIOns at BrockvIlle JaIl/St. Lawrence Valley The employer's posItIOn IS that It has complIed fully wIth the memorandum of settlement and the selectIOn process used to elImInate the staffing overage was appropnate and fair to all affected managers The facts before me are not In dIspute and were agreed upon by the partIes orally at the heanng Into thIS matter The memorandum agreed to by the partIes followed a decIsIOn of the board In Williams that found that the gnevors were entItled to rely on sectIOn 14(2) of RegulatIOns 977 3 under the Public Service Act (amended In 2002) ThIS meant that competItIOn # CS-9047-01 held In July 2001 Insofar as It reqUIred the gnevors to compete wIth non-OMI6's, was contrary to the PSA. FolloWIng the decIsIOn In Williams by way of the memorandum, the affected gnevors were offered home posItIOns at vanous InstItutIOns In the ProVInce The gnevors - Mr Tim AsselIn, Mr Terry Kutchaw Mr DavId Lalonde, Mr Robert Nixon and Mr Bnan Patterson- were all offered posItIOns at St. Lawrence Valley The memorandum of settlement also provIdes at paragraph two Where thIS settlement creates staffing Imbalances at partIcular InstItutIOns, such Imbalances wIll not be resolved through a competItIOn process between the gnevors and current operatIOnal managers appoInted pursuant to competItIOn #CS-9047-01 held on or about July 2001 At the tIme of the settlement the employer planned to expand the capacIty of St. Lawrence Valley However In January 2005 havIng completed part of the expanSIOn, the government made a decIsIOn not to fimsh It. The mImstry alleged that It also decIded to amalgamate the admInIstratIOn of both St. Lawrence Valley and the BrockvIlle JaIl The gnevors' counsel took Issue WIth whether thIS amalgamatIOn IS legItImate, but thIS Issue does not need to be decIded In order to answer the questIOn that I have before me The decIsIOn not to further expand St. Lawrence Valley led the employer to conclude that It only reqUIred thIrteen operatIOnal managers to run the facIlItIes SInce there were twenty-sIx OperatIOnal Managers who held permanent posItIOns at St. Lawrence Valley and BrockvIlle JaIl, the employer InvIted those wIth permanent posItIOns to IndIcate whether they wanted to remaIn or keep a home posItIOn at the facIlItIes The gnevors were also advIsed of the procedure that would be followed to reduce the numbers from twenty-sIx to thIrteen OMI6's A letter to one of the gnevors provIded In part 4 The procedure IndIcates that where there IS a reductIOn In the number of employees performIng the same work, the determInatIOn of who receIves a layoff (or surplus) notIce and who IS retaIned In the effected posItIOn(s) must be based on ment. All affected employees must be assessed USIng normal staffing practIces, IncludIng IntervIews, to determIne the best qualIfied for the posItIOn(s) to be staffed. Those employees not selected wIll receIve a layoff (or surplus) notIce For the purposes of the operatIng procedure, ment refers to the selectIOn of a candIdate whose qualIficatIOns best meet employment-related selectIOn cntena. Some of the gnevors partIcIpated In the selectIOn process, and others chose not to takIng the posItIOn that they ought not have to compete for theIr Jobs Mr AsselIn has opted to retIre Mr Lalonde, Mr Nixon and Mr Kutshaw have chosen to go to Ottawa Carleton DetentIOn Centre Mr Patterson has selected a surplus package THE GRIEVORS' SUBMISSION Counsel for the gnevors submItted that the memorandum of settlement sIgned In 2002 created a staffing Imbalance at the two InstItutIOns, BrockvIlle JaIl and St. Lawrence Valley and he argued further that the employer can not resolve the overages through a competItIOn, because of the language of paragraph two of the memorandum of settlement, whIch states that staff Imbalances "wIll not be resolved through a competItIOn process between the gnevors and current operatIOnal managers appoInted pursuant to competItIOn #CS-9047-01 " Thus he argued the competItIOn that was held In 2005 whIch assessed both the gnevors and OM-16s appoInted by the 2001 competItIOn IS contrary to the memorandum of settlement. Counsel argued further that the Imbalance In staffing was not realIzed untIl the further decIsIOn was made not to contInue to expand St. Lawrence Valley It was counsel's VIew that paragraph two was not ambIguous and the employer's posItIOn on thIS matter In a sense, read In a temporal or tIme restnctIOn to the 5 language whIch was Incorrect. Thus the competItIOn In 2005 was contrary to the memorandum of settlement and IS, therefore, prohIbIted. THE EMPLOYER'S SUBMISSION Counsel for the employer noted that the Williams decIsIOn was made dunng a maJor restructunng of the correctIOnal servIces In Ontano ThIS was gOIng on dunng the late 1990s and early 2000s Small JaIls were beIng closed and "super" JaIls were beIng bUIlt. With these closures some people were Job threatened and there were competItIOns to fill fewer posItIOns However thIS was not the sItuatIOn In 2005 Counsel argued that the thIrteen OMI6's who were not successful In thIS recent selectIOn process In 2005 could all have Jobs If they are wIllIng to move He argued that re-deployment IS a vIable optIOn. Counsel argued further that the memorandum of settlement sIgned In 2002 was not Intended to gIve the gnevors pnonty for all future posItIOns He submItted that the gnevors' posItIOn that they should never have to compete agaInst people who were successful In the 2001 competItIOn was ImplausIble Counsel urged me to find that neIther the people who were successful In the 2001 competItIOn, nor the gnevors who were assIgned through the memorandum of settlement to home posItIOns In the area, should be gIven a pnonty to get Jobs In 2005 SInce the employer had to decIde how to reduce the numbers from twenty-sIx to thIrteen OperatIOnal Managers, It used a selectIOn process establIshed under the Workforce AdJustment PolIcy Counsel argued that the memorandum of settlement provIded offers of home posItIOns to the gnevors Paragraph two of the agreement then went on to provIde that any Imbalance at an InstItutIOn would not be resolved through a competItIOn process However counsel argued that the Imbalance In staffing occurred as a result of a decIsIOn by the government not to fimsh 6 bUIldIng St. Lawrence Valley There IS no eVIdence In counsel's submIssIOn that the memorandum of settlement led to any staffing Imbalance In 2002 The decIsIOn not to fimsh St. Lawrence Valley was a polItIcal and financIal one that affects everyone In the two InstItutIOns In summary counsel argued that the employer could not sImply leave all twenty-sIx OMI6's In home posItIOns for the two InstItutIOns They had no chOIce but to assess the twenty-sIx and pIck thIrteen OMI6' s for the remaInIng posItIOns The Interests of all twenty-sIx had to be addressed fairly Counsel relIed on the folloWIng cases In support of hIS submIssIOn Re Ott~a Hospital and Ontario Public Service Employees Union (2002) 105 LAC (4th) 134 (Kaplan) Ontario Public Service Employees Union (Young) and the Ministry of the Attorney General (2003) GSB 2001/0660) (Abramsky) THE GRIEVORS' REPLY ARGUMENT Counsel for the gnevors argued In reply that the employer had not been fair to the gnevors here If a manager were not competent then It would be reasonable to fire that OM16 But If an OM16 was competent, and had worked for the Mimstry for many many years, as the gnevors have In thIS case, then they deserved to be protected In counsel's submIssIOn. They ought not have to compete for theIr posItIOns WIth much more Jumor staff The staffing Imbalance occurred after the competItIOn In 2001 In counsel's submIssIOn. The Imbalance was establIshed when the employer chose to keep IndIVIduals who were successful In gettIng posItIOns In the 2001 competItIOn. In summary counsel argued that the gnevors should never have been made to compete agaInst those who had been successful In the 2001 Job competItIOn, who were then actIng OMI6's and members of the bargaInIng umt. 7 DECISION The questIOn before me IS whether the employer vIOlated the 2002 memorandum of settlement by USIng a selectIOn process In 2005 to downsIze from twenty-sIx to thIrteen OperatIOnal Managers at St. Lawrence ValleylBrockvIlle There IS no doubt that as a general rule the employer can reqUIre employees In the same posItIOn- In effect - to compete for theIr own posItIOn, when some Jobs must be elImInated. It IS also well-establIshed law that the process must be fair to all affected employees The only way that the gnevors may aVOId thIS well- establIshed Junsprudence IS If the memorandum of settlement sIgned as a result of Williams prohIbItS a competItIOn to downsIze In 2005 The gnevors' complaInt In Williams was that they were forced to compete for OM16 posItIOns WIth actIng OMI6's, who were members of the bargaInIng umt. In Williams the gnevors were able to persuade the board that they were entItled to the protectIOn of sectIOn 14(2) of Regulation 977 whIch allowed them certaIn nghts to transfer to open OM-16 posItIOns As a result of that decIsIOn the partIes agreed on a memorandum of settlement that assIgned the gnevors before me In thIS matter to St. Lawrence Valley The memorandum also provIded at paragraph two as follows Where thIS settlement creates staffing Imbalances at partIcular InstItutIOns, such Imbalances wIll not be resolved through a competItIOn process between the gnevors and current operatIOnal managers appoInted pursuant to competItIOn #CS-9047-01 held on or about July 2001 It IS thIS language that must be Interpreted. And the nub of the Issue IS when the staffing Imbalance anses The gnevors' posItIOn IS that the "Imbalance" or overage In staffing occurred when the memorandum was sIgned. The employer's posItIOn IS that the overage In staffing 8 occurred when the government decIded not to fimsh the expanSIOn of St. Lawrence Valley and amalgamate It WIth BrockvIlle JaIl for the purposes of admInIstratIOn. HavIng carefully consIdered the submIssIOns of the partIes, I am persuaded by the employer's argument. There was no staffing Imbalance In 2002 when the gnevors were assIgned wIth others to St. Lawrence Valley There was a plan to expand thIS facIlIty and the employer also had a plan for the number of managers reqUIred to run the facIlIty But that plan changed In 2005 It IS thIS change that led to the staffing overage and the necessIty to downsIze With thIS change fewer managers were reqUIred. The gnevors' counsel emphasIzed that some of the gnevors had not even got to theIr posItIOns at St. Lawrence Valley For example some were workIng at Ottawa Carleton DetentIOn Centre However I am not persuaded that thIS IS matenal The language of the agreement says clearly If the memorandum created a staffing overage, then the gnevors could not be forced to compete agaInst others who won an OM-16 posItIOn In the competItIOn In 2001 But as noted earlIer It was the decIsIOn not to fimsh the expanSIOn that lead to the overage The sItuatIOn here IS really no dIfferent than If those assIgned to an eXIstIng InstItutIOn by way of the memorandum and those assIgned by the competItIOn In 2001 were facIng the cloSIng of half of theIr InstItutIOn In 2005 Thus I am persuaded that the language In paragraph two was only Intended to protect the gnevors In 2002 If the assIgnment to an InstItutIOn resulted In a staff overage Counsel for the gnevors argued eloquently that the gnevors, who were all semor OperatIOnal Managers, deserve better than to have to compete for theIr own posItIOns and that theIr semonty should protect them. WhIle thIS board IS sympathetIc to the gnevors, and recogmzes the dIfficulty for those who must lIve through the dOWnSIZIng and the change, there IS no semonty 9 protectIOn for OperatIOnal Managers The only thIng that thIS board can reVIew IS whether the process, lIke a J ob competItIOn, has been fair to all-a questIOn that was not put before me Thus I must conclude that the employer dId not vIOlate the memorandum of settlement when It used a selectIOn process to choose thIrteen OperatIOnal Managers to contInue at St. Lawrence Valley/ BrockvIlle JaIl Therefore the gnevances before me are hereby dIsmIssed. At the outset of the heanng counsel for the employer made a motIOn that Mr Verch's gnevance should be dIsmIssed as moot. Mr Verch was assIgned to BrockvIlle JaIl after a competItIOn In 2003 He was also successful In the selectIOn process In gettIng one of the thIrteen posItIOns at St. Lawrence ValleylBrockvIlle JaIl In 2005 HavIng got one of the thIrteen Jobs, counsel for the employer argued that the gnevor could have no remedy Counsel for the gnevor argued that It was not moot for vanous reasons, but pnmanly because Mr Verch was concerned that whIle he IS currently In a posItIOn at the BrockvIlle JaIl, he mIght find hImself assIgned to St. Lawrence Valley Counsel for Mr Verch argued that the amalgamatIOn was not legItImate If It was not, then Mr Verch should not have been reqUIred to compete for a posItIOn under an amalgamated admInIstratIve model He had a home posItIOn at BrockvIlle JaIl Mr Verch's gnevance [P-2004-3968] IS not founded on an alleged breach of the memorandum of settlement dated 2002 It Involves as far as I was advIsed an allegatIOn that IS factually an Issue between the partIes-whether the amalgamatIOn IS legItImate Therefore, I have decIded that I do not have enough eVIdence to decIde whether thIS gnevance IS moot. Should the gnevor wIsh to proceed he or hIS counsel may contact the RegIstrar for a further heanng date I shall also retaIn JunsdIctIOn as requested by the partIes to deal wIth Mr MacGregor's gnevance [P-2004- 3969] should the gnevor wIsh to proceed. 10 Dated at Toronto thIS 2ih day of January 2006 ~ ~ ~.. .0:-"'-. on ".'..: . i . ..-,," '" .' ~ .. I. ..,,,.. r" . '. ~~' ~ ...../. ~".. '. . ..~~. .. I...l~.. VIC.. ~. .. -- .....: .