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HomeMy WebLinkAboutP-2001-0013.Tom Sawyer et al.06-08-03 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-2001-0013 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Tom Sawyer et al Grievor - and - The Crown In RIght of Ontano (Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer BEFORE Kathleen G O'NeIl Vice-Chair FOR THE GRIEVOR Tom Sawyer Gnevor Zoltan RonkaI, Gnevor's representatIve FOR THE EMPLOYER George ParrIs Counsel Mimstry of Government ServIces HEARING May 3 2006 2 DeCISIon ThIS deCISIOn deals wIth a remedIal claim resultIng from the gnevor's July 2, 2001 gnevance ThIS was ongInally a part of a group gnevance filed by several OperatIOnal Managers from Guelph CorrectIOnal Centre claimIng dIrect assIgnment to new posItIOns as they were In an InstItutIOn slated for cloSIng. The gnevance was settled when the gnevors were offered dIrect assIgnments to the facIlIty of theIr chOIce, except for Mr Sawyer's remaInIng claim for travel expenses He eventually receIved a dIrect assIgnment to a posItIOn of hIS chOOSIng, but stIll seeks compensatIOn for travel tIme and expenses whIch he alleges were Incurred due to the delay In gIVIng hIm a lateral transfer In a prelImInary decIsIOn dated Apnl13 2005 the Board demed the employer's prelImInary ObjectIOn and held that the gnevor would be gIven an opportumty to attempt to prove hIS case for the addItIOnal remedIal relIef he requests The background facts are set out at some length In the prelImInary decIsIOn and need not all be repeated here Suffice It to say that, as part of a maJ or restructunng of Ontano' S pnson system, the employer conducted a mass competItIOn for OperatIOnal Managers, wIth a postIng date of June 22, 2001 The gnevor applIed for a posItIOn even though he felt he should not have to compete, as he was already a confirmed OperatIOnal Manager As a result of that postIng, he receIved a posItIOn at Ontano CorrectIOnal InstItute (OCI), whIch was also slated to close, but at a later date than Guelph CorrectIOnal Centre He took the posItIOn but also SIgned the group gnevance preservIng hIS nghts to claim a lateral transfer as well The gnevance was based on the propOSItIOn that J ob-threatened OperatIOnal Managers were entItled to a lateral transfer and should not have to compete for theIr own Jobs ThIS posItIOn was upheld In the decIsIOn known 3 as Williams, et aI., (P/0008/01 et al ), dated January 14 2002 (LeIghton) to the extent that the competItIOn should not have been open to those who were not In the classIficatIOn OM-16 OperatIonal Managers As a result, the gnevor's gnevance was allowed to the extent that, In December 2002, he was asked what posItIOn he would lIke to be transferred to He chose Maplehurst CorrectIOnal Complex, and was transferred there In June 2003 His claim IS that he IS also entItled to travel tIme and expenses from March 22,2002, when he reported to OCI and June 16 2003 when he reported to Maplehurst. He saw the job at OCI as a temporary posItIOn because the InstItutIOn was slated to close and therefore the job would not be contInuIng Indefimtely The questIOn to be deCIded here IS whether the gnevor IS entItled to be paid for travel tIme and expenses due to the delay between hIS assIgnment to OCI and hIS eventual assIgnment to Maplehurst. A remedy to a gnevance IS always Intended to put the gnevor as far as pOSSIble, In the posItIOn that he would have been had the breach of hIS terms and condItIOn of employment not occurred In the first place ThIS group gnevance was allowed as a result of the Williams decIsIOn, CIted above, when the employer deCIded to apply that decIsIOn to the gnevor rather than re-lItIgate the Issue What that decIsIOn found flawed about the 2001 competItIOn was that It allowed people who were not OperatIOnal Managers to apply to and get posItIOns In contInuIng or new facIlItIes (see page 9 of the decIsIOn) As noted In that decIsIOn, as well, the OperatIOnal Managers dId not object to competIng WIth other OperatIOnal Managers If more than one was seekIng the same pOSItIOn. Nor dId the gnevor take a dIfferent pOSItIOn on thIS pOInt. The questIOn becomes what IS necessary to put the gnevor In the pOSItIOn he would have been In If the competItIOn had excluded candIdates other than OperatIOnal Managers from the outset? Were the travel tIme and expenses he Incurred commutIng to OCI a result of the employer's 4 havIng Included candIdates In the ongInal competItIOn who were not OperatIOnal Managers, IncludIng members of the bargaInIng umt? The employer's posItIOn IS that the gnevor has not shown that there IS a causal connectIOn between the travellIng he dId to OCI between 2002 and 2003 and the flaw In the ongInal competItIOn. In other words, counsel argues that It has not been proven that the gnevor would have been assIgned to Maplehurst any sooner had the competItIOn been run In the manner authonzed by the Williams decIsIOn. In support of thIS proposItIOn, counsel called eVIdence from Barry Thomas, who was Involved as manager of transItIOn planmng for management staff at the relevant tIme Mr Thomas testIfied that the demand for Jobs at Maplehurst dunng the 2001 competItIOn was very hIgh. It was probably the most popular place for candIdates from the western and central regIOns, as It IS near the Greater Toronto Area, but not In It, and IS near Highway 401 allowIng for convement commutIng from a number oflocatIOns He noted that, where more than one Job-threatened manager wants a posItIOn, a competItIve process IS used to determIne the successful candIdate At the tIme of the 2001 mass competItIOn, Mr Sawyer would have been In competItIOn WIth a large number of managers for the posItIOns at Maplehurst. Mr Thomas testIfied that there IS "no way" the gnevor would have gotten a pOSItIOn at Maplehurst on the first round, gIven hIS low semonty related to other OperatIOnal Managers Mr Sawyer had been confirmed as an OperatIOnal Manager effectIve Apnl 30 2001 only a few months before the June 2001 postIng. Mr Thomas testIfied that Mr Sawyer mIght never have gotten to Maplehurst - despIte the fact that he IS a loyal and dedIcated manager - that the reason he has a pOSItIOn at Maplehurst now IS due solely to the way the employer chose to Implement the Williams deCISIOn - by gIVIng any manager who wanted to move hIS first chOIce of pOSItIOn, subject to operatIOnal needs In the tImIng of the actual move There was ongInally a cut-off date whIch techmcally dId not apply to Mr Sawyer and two other managers, because of theIr date of 5 hmng as OperatIOnal Managers, but the employer later decIded to Include the three Jumor managers In the ImplementatIOn of the Williams decIsIOn. For hIS part, the gnevor maIntaInS that he should have receIved payment for travel tIme and expenses because the aSSIgnment to OCI was temporary as he was gOIng from one cloSIng InstItutIOn to another and, In hIS VIew travel expenses go WIth temporary aSSIgnments He feels that he IS owed payment for travel tIme and expenses for the tIme he was not assIgned to a non- decommIssIOmng faCIlIty He says he never thought the aSSIgnment to OCI was permanent as It had been announced In 1996 that It was cloSIng and he had heard many allusIOns to ItS status as a cloSIng InstItutIOn thereafter In the letter offenng hIm the pOSItIOn at OCI, he was offered access to the Ontano Government RelocatIOn Plan whIch contaInS proVIsIOns for covenng some relocatIOn expenses If OCI had not been cloSIng, the gnevor IndIcated he would have moved closer to It, rather than commute as he dId SInce he belIeved It was a temporary sItuatIOn. If he had been assIgned to Maplehurst, gIven the shorter commute, he Said he would not have moved hIS resIdence The gnevor testIfied that he had been asked to IndIcate five chOIces In the 2001 competItIOn. His first two were GATU the treatment umt at Guelph, and Maplehurst, followed by HamIlton, one of Stratford, Vamer or Brantford as hIS thIrd chOIce, and OCI In Brampton as hIS last chOIce All but two of these were on the lIst of decommIssIOmng faCIlItIes Although GATU was hIS first chOIce he had antICIpated that he would be aSSIgned to hIS second chOIce, Maplehurst, because GATU was slated to close shortly after He testIfied that about four Maplehurst vacanCIes were filled from the 2001 competItIOn. At the tIme, he obJected to the fact that he was not aSSIgned to Maplehurst, and was told that operatIOnal reqUIrements meant that he would not be aSSIgned to 6 Maplehurst, that he was needed at OCI as they were short of OperatIOnal Managers He reported to OCI the day before the 2002 OPSEU stnke The partIes stIpulated certaIn other facts relatIng to two OperatIOnal Managers who receIved some travel expenses, pursuant to agreements wIth theIr supenntendent. These were Doug ChIlton at Guelph CorrectIOnal Centre and DebbI Acomb at GATU The latter stayed at GATU because she had been successful In a competItIOn of her peers to stay at GATU When GATU closed she chose to be covered by an addendum to the Staffing OperatIOn PolIcy whIch guaranteed two years of temporary work, dunng whIch she was assIgned to Vamer Centre for women, WIth the opportumty to dISCUSS travel expenses WIth the supenntendent. She went there on temporary aSSIgnment, and whIle she was there a vacancy occurred for whIch she had pnonty Under the addendum, certaIn travel expenses were paid, In the sItuatIOn where the managers to whIch It applIed no longer had home pOSItIOns The gnevor noted that Ms Acomb had been appoInted as an OperatIOnal Manager at a later date than he was Mr ChIlton also chose the applIcatIOn of the Mimstry's addendum polIcy for Job-threatened OperatIOnal Managers and took a temporary aSSIgnment at Burtch CorrectIOnal Centre He receIved a letter saYIng that travel expenses were to be determIned WIth the supenntendent In accordance WIth the addendum proVISIOns After two years of workIng under the terms of the addendum, Mr ChIlton retIred, as he had hIS Factor 80 Both partIes spent a good deal of tIme on the questIOn of whether the gnevor was entItled to travel expenses on the baSIS that the aSSIgnment to OCI should be conSIdered temporary Mr Thomas testIfied that travel expenses are normally paid when the employer asks an OperatIOnal Manager to go somewhere for a defined penod of tIme What expenses would be paid depends 7 on the CIrcumstances If the transfer IS at the employee's request, travel expenses are not paid. Employer polIcy provIdes that at the tIme of a temporary assIgnment, the terms and condItIOns of the temporary assIgnment, IncludIng any travel expenses are to be put In wntIng. There was no agreement provIdIng payment for travel tIme or expenses for the penod of the gnevor' S tIme at OCI. Mr Thomas said that when the gnevor was transferred to OCI, that was hIS home posItIOn, by vIrtue of havIng competed and accepted the OCI posItIOn. The documentatIOn of the transfer filed wIth the Board states that Mr Sawyer moved to the new home posItIOn at OCI effectIve March 11 2002 Although Mr Sawyer's posItIOn at OCI was permanent, Mr Thomas said he retaIned hIS Job-threatened status, so had pnonty for other vacanCIes When Mr Sawyer went to OCI In 2002, It was slated to be open untIl 2007 and Mr Thomas testIfied that he would never have put someone In a temporary posItIOn for five years As It turns out, OCI IS no longer slated to close In final argument on behalf of the gnevor Mr RonkaI submItted that an aSSIgnment resultIng from the 2001 mass competItIOn, such as the gnevor's aSSIgnment to OCI, was InvalId as the competItIOn was held In contraventIOn of RegulatIOn 977 As a result of the applIcatIOn of the Williams deCISIOn, he was eventually aSSIgned to Maplehurst, where It IS submItted he should have been In the first place In these CIrcumstances It IS argued that the gnevor's aSSIgnment to OCI should be vIewed as temporary and he should be entItled to compensatIOn for travel tIme and expenses whIle there In others words, the damage to hIm caused by not beIng put Into Maplehurst earlIer should be remedIed by payment of travel tIme and expenses for the Intenm penod. In the gnevor's VIew the delay In allowIng the gnevance caused hIm a lengthy penod In a temporary aSSIgnment at OCI whIch Involved sIgmficant cost to hIm, whIch should be borne by the employer 8 The employer's answer to thIS argument IS that In order to uphold that posItIOn, the Board would need to find that the gnevor would have gotten the posItIOn at Maplehurst at the tIme of the ongInal competItIOn or at some pOInt sooner than he dId If the competItIOn had been held correctly In counsel's submIsSIOn, the eVIdence does not support a findIng that, had the competItIOn been held correctly I e not Included candIdates who were not OperatIOnal Managers, the gnevor would have receIved a posItIOn at Maplehurst earlIer than he dId. FIrst of all, employer counsel argues that If the gnevor had been gIven hIS first chOIce In June or July of2001 It would have been GATU not Maplehurst, to whIch he would have been aSSIgned. Counsel notes that despIte the fact that It was a de-commIssIOmng InstItutIOn, the gnevor chose to gIve pnonty to GATU not Maplehurst. Counsel argues that, had he gone to GATU he would not have been In any better posItIOn In relatIOn to Maplehurst. GATU eventually closed about the tIme the gnevor went to Maplehurst. In fact, he mIght well have been In a worse posItIOn, as there IS no eVIdence that there would have been a vacancy for hIm at Maplehurst at that tIme GIven the fact that only two of the gnevor's five chOIces In 2001 were non-decommIssIOmng InstItutIOns, counsel submIts that It would be mIsplaced to conclude that the gnevor IS somehow owed damages because he was aSSIgned to a decommIssIOmng InstItutIOn. Furthermore, It IS the employer's posItIOn that there IS no general entItlement to travel expenses floWIng from the fact that the gnevor was aSSIgned to a decommIssIOmng InstItutIOn. Counsel submIts that the preponderance of the eVIdence IS that the assIgnment was permanent, and travel expenses are not paid for permanent posItIOns Nor are they paid for temporary ones, unless there IS a specIfic agreement to that effect. In any event, In the face of the employer's offer to pay relocatIOn expenses when he was aSSIgned to OCI, the gnevor should not be elIgIble for travel expenses when he turned that down, In the employer's VIew Counsel emphasIzes that OCI was 9 somewhere the gnevor asked for hImself, and that If he dId not want to go there, he could have declIned the posItIOn. Counsel submIts that It was senSIble for the gnevor to ask for OCI because It was one of the facIlItIes closer to where he lIved, and It had a longer antICIpated lIfe span than Guelph. Counsel also underlInes that Mr Sawyer and two other OperatIOnal Managers were the three managers wIth the least expenence In the proVInce In the relevant penod of tIme The Board IS InVIted to reJect a conclusIOn that, despIte all the dIsplaced managers, IncludIng the twenty other managers from Guelph who gneved, that he should have been put Into Maplehurst at the tIme In order to accept that conclusIOn, counsel submIts there would have to be eVIdence that the gnevor was supenor to all the OperatIOnal Managers who applIed to Maplehurst. It IS suggested that It IS unlIkely that that would be so gIven the greater expenence of all but two other managers * * * The Issue before me IS whether the gnevor reqUIres the remedy of travel tIme and expenses In order to be put In the posItIOn, as closely as pOSSIble, to the posItIOn he would have been had the 2001 competItIOn been run as the Williams decIsIOn found It should have been ThIS reqUIres an attempt to see how thIngs would have gone If one could turn the clock back, and do It over In dOIng so It IS Important to keep In mInd that the fault found wIth the 2001 mass competItIOn In the Williams decIsIOn was that the employer allowed non-OperatIOnal Managers to apply It IS necessary to ask whether the addItIOnal candIdates somehow depnved the gnevor of an earlIer assIgnment to a Maplehurst vacancy Would the gnevor lIkely have gotten one of the Maplehurst vacanCIes rather than OCI or one of the other chOIces he put down when asked In 2001 If the competItIOn had been run Just among Job-threatened OperatIOnal Managers? One 10 IndIcator that the presence of the extra candIdates mIght have had a negatIve effect on the gnevor's chances would be If any non- OperatIOnal Manager receIved any of the vacanCIes at Maplehurst In 2001 But there IS no eVIdence of that. Further there IS no eVIdence that there was any reason why the gnevor should have gotten the Maplehurst vacanCIes over the people who dId get them at the tIme, or at any tIme after that. On the contrary It IS a reasonable Inference from Mr Thomas' eVIdence that IS unlIkely that the gnevor one of the three OperatIOnal Managers wIth the least expenence In the proVInce, would have gotten one of the few posItIOns at the very popular Maplehurst complex, even If there had been no non- OperatIOnal Managers In the pool Further there IS no eVIdence that If the competItIOn had been held as It should have been, the gnevor would have lIkely arrIved at Maplehurst at any tIme close to the tIme he went to OCI. In fact, Mr Thomas' uncontradIcted eVIdence went further to IndIcate that the only reason the gnevor got to Maplehurst at all IS the way the employer deCIded to Implement the decIsIOn, by SImply gIVIng each gnevor who was stIll Interested theIr first chOIce at that tIme, but managIng the vacanCIes by postpomng the reportIng dates untIl operatIOnal needs allowed the transfer In the face of thIS eVIdence I have no basIs on whIch to find that the flaw In the 2001 competItIOn IS responsIble for the fact that the gnevor dId not receIve an assIgnment to Maplehurst sooner Nor IS the eVIdence convIncIng that any delay In applYIng the Williams award to the gnevor resulted In a delay In hIS transfer to Maplehurst. AgaIn, the uncontradIcted eVIdence IS that It was only because of the speCIal cIrcumstances of the employer's decIsIOn to Implement the Williams award In the way It dId that meant that the gnevor gaIned a posItIOn at Maplehurst at all 11 As to the Idea that the temporary nature of the assIgnment at OCI Itself entItles the gnevor to travel expenses, It would be necessary to show a causal connectIOn between the flaw In the 2001 competItIOn and such an entItlement. The eVIdence sImply does not go that far It appears very lIkely that If thIngs had gone as they should have In 2001 the gnevor would have been transferred somewhere other than Maplehurst. There IS no eVIdence to support a findIng that It IS lIkely that It would not have been OCI, or not on a permanent basIs All of the eVIdence about the terms of hIS assIgnment to OCI IndIcate that It was Intended as a permanent assIgnment. In partIcular the offer of relocatIOn expenses suggests the assIgnment was permanent. None of the usual IndIcators of a temporary assIgnment, such as a proJected end date, or a dIscussIOn or agreement about travel expenses If the move was at the employer's ImtIatIve were present. Although the gnevor's InterpretatIOn of any assIgnment to a decommIssIOmng InstItutIOn as temporary IS understandable, the eVIdence does not support a findIng that such a defimtIOn was part of the employer polIcy or any IdentIfiable term or condItIOn of hIS employment. Further the mere fact of beIng a temporary assIgnment does not create an automatIc entItlement to travel expenses As well, there IS no eVIdence that thIS would have been dIfferent If there had been no candIdates other than OperatIOnal Managers In the 2001 competItIOn, or If the gnevor had been assIgned to GATU or another one of hIS chOIces rather than OCI. In sum, there IS no eVIdence suffiCIent to base a findIng that If the competItIOn had been flawless In 2001 It IS lIkely that the gnevor would have ended up IncurrIng no greater travellIng expenses than he would have had at Maplehurst, or In a temporary aSSIgnment WIth entItlement to travellIng expenses In partIcular the eVIdence IS not persuaSIve that the gnevor was In a sItuatIOn so SImIlar to Ms Acomb or Mr ChIlton, such that theIr receIpt of travel expenses would suggest that It was also necessary that he should receIve them to adequately remedy hIS 12 gnevance The gnevor dId not allege that he should have been consIdered to have no home posItIOn under the addendum as they were Rather he argued he should have been gIven a new home posItIOn at Maplehurst earlIer than he was In the result, for the above reasons, It IS my conclusIOn that the eVIdence does not support a findIng that there IS a causal connectIOn between the flaw In the 2001 competItIOn and the fact that the gnevor Incurred travel expenses for whIch he has not been reImbursed. In the result, the gnevor's claim for addItIOnal remedIal relIef IS demed. Dated at Toronto thIS 3rd day of August, 2006