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HomeMy WebLinkAboutUnion 09-10-15Between: In the Matter of an Arbitration Pursuant to the Labour Relations Act, S.O. 1995 RELIGIOUS HOSPITALLERS OF SAINT JOSEPH OF THE HOTEL DIEU OF KINGSTON (the Employer/ Hotel- Dieu) -and- ONTARIO and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 443 (the Union) Re: Article 11 - Layoff,Policy and Individual Grievances 2007-0443-0004 AWARD Paula Knopf - Arbitrator APPEARANCES: For the Employer: Les Foreman Scott Macinnes Clarence Willms For the Union: Susan Ballantyne Amy Axler Tammy Drew Barb DeRoche The hearing of this matter was held in Kingston, Ontario, on March 24 and November 24, 2008, and September 10, 11 and 29, 2009. This case involves both an Individual and a Union Policy grievance that were filed as a result of the Employer's decision to change the work location and functions of a long -service employee. The Union alleges that the Employer's actions violated the provisions of the Collective Agreement that are triggered in the event of a potential layoff. The Employer never contemplated that the Grievor would be removed from the workforce. She lost no time and has remained in the same job classification to date. Therefore, the Employer contends that the change in duties simply amounted to a legitimate exercise of its management right to reassign an employee. Despite the parties' widely divergent positions, the essential facts that form the basis for this case are not in dispute. Hotel Dieu is an ambulatory care teaching hospital associated with Queen's University. It operates in conjunction with other facilities in the community, including Providence Continuing Care. The individual Grievor, Debbie Ball, was hired in 1990 into the classification of "GFT Secretary' in the Department of Psychiatry (the Department) that covered both the Hotel Dieu and Providence Care sites. Not long after she was hired, she became the Secretary to the Head of the Department, with her classification remaining the same. She served in that capacity to successive Department heads, up to and including Dr. Arboleda- Florez who took over the headship in approximately 1997. At one point during his term in that position, Dr. Arboleda-Florez decided that he should relocate his office from the Hotel Dieu site to the facilities at the separate Providence Care site. Ms. Ball moved to the other site with him. There is a separate Collective Agreement between another OPSEU Local and Providence Care. However, despite the change in location, Ms. Ball continued to be paid by Hotel Dieu and remained as a member within the Hotel Dieu bargaining unit. In June of 2007, Dr. Arboleda-Florez stepped down as Department Head and was replaced by Dr. Malev, who first began in an "Acting" role and then was confirmed in the Fall. Dr. Malev brought his own Secretary with him when he assumed the 'headship' and for a while Ms. Ball remained in her same position at the Providence Care site. 1 The term "secretary' is the term in the contract. 2 However, Dr. Malev did not require two secretaries. Ms. Ball began noticing that some of the duties that she had done for years were being given to Dr. Malev's other secretary even though she was a part of this bargaining unit. The Union felt that this violated the Collective Agreement's protections of bargaining unit work. Further, rumors began circulating that Ms. Ball would not be kept on as a Secretary to the Department Head. In October 2007, the Union began asking management how the change in Department headship would affect Ms. Ball. These discussions took place in the context of the parties' monthly Joint Consultation Committee meetings. The Union was told that Ms. Ball's "role and responsibilities may change, but that her GFT status would remain intact." Minutes from the October meeting indicate that the Union asked to be told in advance about any changes that directly related to their members, "as a courtesy". Barb DeRoche, the Local's President, testified that a Policy grievance was filed at that point in relation to Dr. Malev's other Secretary doing work that the Union felt belonged to this bargaining unit work, and over the Union's concern that "Debbie Ball was being pushed out of a job" without the Employer invoking the layoff and recall provisions of the Collective Agreement. There were further discussions between the parties at the Joint Consultation Committee meetings about the situation in November and December. Minutes from the December Committee Report indicate that the Union was told that Ms. Ball was scheduled to move back to the Hotel Dieu site on December 12. The Union voiced concern about the assignment, asking for details about who would be supervising her work, what her responsibilities would be, and who would now have access to the confidential emails of the Department Head. Ms. Ball's evidence made it clear that during this same period, she was concerned about her own security and about losing her role as the GFT Secretary to the Department Head. However, she testified that her supervisor assured her that although she was being moved back to the Hotel Dieu site, she would still retain her duties as Secretary to the new Department Head. The move did occur as scheduled. However, on December 20h, Ms. Ball filed a grievance alleging that 3 she had been "redeployed" contrary to the Collective Agreement. She testified that the reason she filed the grievance was: "l was not being allowed to do my own work. When I saw someone else doing my work, I was fearful for the loss of my job." On December 21, the Employer issued a job posting for a non-union "vacant position" of "Executive Assistant - Department of Psychiatry". The Secretary that Dr. Malev brought with him remains in place to date. Although the "sister" Local at the Providence Care site initially filed a grievance asserting that this "vacancy" ought to have been a bargaining unit position, the grievance was eventually withdrawn and the position remains outside the bargaining unit. Dr. Malev's previous secretary now holds the position of the Department's "Executive Assistant" and is considered as a Providence Care employee, performing the same functions as the previous GFT Secretary, as well as additional supervisory duties that take the position outside of the bargaining unit on that site. In early January 2008 an email was circulated to the Department announcing that Ms. Ball was no longer the Secretary to the Head of the Department. This was the first and only official notice that Ms. Ball received about the loss of her duties or status as the Department Head's secretary. In the meantime, Dr. Arboleda- Florez had taken on new responsibilities himself. At his invitation, and after consultation with the Union, Ms. Ball accepted a position as his GFT Secretary in his new role as Director of the Pan-American World Health Psychiatric Epidemiology and Research Unit. During all the relevant times and even up to today, she remained as a Hotel Dieu employee and member of this bargaining unit. Although she testified that.her duties are significantly different than what she did while working with the Department heads, she has retained the same status and compensation of a GFT Secretary throughout. She lost no time, income or benefits as a result of the transfer or change in assignments. 4 In a letter dated March 18, 2008, in response to the Union's request for production in these proceedings, the Employer advised the Union that effective December 12, 2007, Hotel Dieu ceased funding the position of GFT Secretary to the Head of the Department of Psychiatry at the Providence Care site. Evidence also revealed that GFT Secretarial positions are funded in various different ways. Some of the funds come from the doctors personally, some funds are from grants and some are funded through their Departments or the University. The Employer's evidence was offered to establish that there was an uncontested practice or pattern of transferring GFT Secretaries upon the arrival or departure of doctors into departments without the Union ever asking for the layoff provisions to come into play. The stated purpose of this evidence was to support an argument that an uncontested practice should be used to assist in the interpretation of the parties' language. This evidence was presented through Lynne McPhail, who recently retired after serving 31 years for this Employer in various capacities, including Labour Relations Officer, and culminating with the position of Administrative Assistant to the Head of Human Resources. Ms. McPhail put forward the documentation regarding three GFT Secretaries who were transferred without the Union asking the Employer to trigger any of the job posting or layoff provisions. This evidence indicated that in March of 2002, a doctor in the Department of Ophthalmology no longer required a full-time GFT Secretary. So the person in that position was offered and accepted the chance to fill a vacancy for a GFT Secretary in another department. In April 1977, another GFT Secretary was told that her position was being deemed "redundant" due to 'funding restrictions, remodeling and transfer of services." She was then "transferred" to another doctor's office. The Union was notified of the move and the reasons. The third situation involved a GFT Secretary who worked in an Emergency Department that was being relocated to another site. She was offered the opportunity to transfer to the new location and declined. She was then told that she had the right to displace a more junior employee, but she was also offered a position in another department with another doctor. She accepted 5 that position. Again, the Union was made aware of the situation and no complaints or grievances were lodged. Finally, by way of factual background, it should be noted that there is one official Job Description for a "GFT Secretary GENERIC' [sic]. Ms Ball also filed an extensive document listing what she and her supervisor developed to record the specific duties of a GFT Secretary to the Department Head. There is no evidence to suggest that this document was ever tendered to or considered by management. However, there was no challenge to its accuracy. The fundamental difference between the "generic" and the specialized descriptions is the latter's emphasis on the specific duties related to the work and responsibilities of a Secretary to a Department Head. The relevant provisions of the Collective Agreement are: 5.01 The Union recognizes that the management of the Hospital and the direction of the employees are fixed exclusively in the Hospital and shall remain solely with the Hospital except as specifically limited by the provisions of this Agreement and, without restricting the generality of the foregoing, the Union acknowledges that it is the exclusive function of the Hospital to: (b) hire, assign, retire, promote, demote, classify, transfer, lay-off, recall, and to suspend or discipline employees or discharge seniority -rated employees for just cause provided that a claim by any employee that the employee has been disciplined without just cause or a claim by a seniority -rated employee that the employee has been discharged without just cause may be the subject of a grievance and dealt with as hereinafter provided; (c) determine in the interest of efficient operation and high standards of service, the hours of work, work assignments, methods of doing the work and the working establishment for the service; C:1 8.04 Policy Grievance A grievance arising directly between the Hospital and the Union concerning the interpretation, application or alleged violation of the Agreement, must be originated under Step 3 within ten (10) calendar days of the event giving rise to the grievance. Failing settlement under Step 3 within five (5) calendar days, either party may submit the grievance to arbitration in accordance with Article 9. However, it is expressly understood that the provisions of this paragraph may not be used by the Union to institute a complaint or grievance directly affecting an employee which such employee could themselves institute and the regular grievance procedure shall not be thereby by-passed. 11.01 (a) In the event of a lay-off that exceeds two (2) weeks, employees with the least seniority within the classification in which the lay-off takes place shall be laid off first, providing that the employees who remain on the job have the ability to perform the work after a ten (10) working day familiarization period. (b) (i) Subject to the conditions outlined herein, an employee whose position has been deemed surplus and who has not received notice of layoff may offer to be voluntarily laid off. (ii) An employee who wishes to exercise this option shall advise the Director of Human Resources in writing of her desire to make an offer of voluntary layoff. An employee whose offer to be voluntarily laid off is accepted by the Employer, at its sole discretion, shall be afforded all rights under the collective agreement as though she has received notice of layoff. 11.02 (c) Separation Allowance: If a regular full-time or regular part-time employee resigns within thirty (30) days of receiving notice of layoff, the employee shall be entitled to a separation 7 allowance of two (2) weeks salary for each year of continuous service to a maximum of twenty-six (26) weeks pay, and, on production of receipts from an approved educational program, within twelve (12) months of resignation, may be reimbursed for tuition fees up to a maximum of three thousand dollars ($3,000). Where an employee resigns later than thirty (30) days after receiving notice pursuant to Article 11 that his or her position will be eliminated, he or she shall be entitled to a separation allowance of four (4) weeks' salary, and, on production of receipts from an approved educational program, within twelve (12) months of resignation, may be reimbursed for tuition fees up to a maximum of one thousand two hundred and fifty dollars ($1,250). 11.04 Prior to issuing notice of layoff pursuant to Article 11 in any classification (s), the Hospital will offer early-retirement allowance to a sufficient number of employees eligible for early retirement under HOOPP within the classification (s) in order of seniority, to the extent that the maximum number of employees within a classification who elect early retirement is equivalent to the number of employees within the classification(s) who would otherwise receive notice of layoff under Article 11. An employee who elects an early retirement option shall receive, following completion of the last day of work, a retirement allowance of two (2) weeks' salary for each year of service, plus a prorated amount for any additional partial year of service, to a maximum ceiling of twenty-six (26) weeks' salary, and, in addition, full-time employees shall receive a single lump -sum payment equivalent to one thousand ($1,000) dollars for each year less than age sixty- five (65) to a maximum of five thousand ($5,000) dollars upon retirement. 11.05 The Hospital shall give each employee in the bargaining unit who has actually been laid off following the completion of the bumping process, ad who is to be laid off for a period of more than thirteen (13) weeks, three (3) months notice in writing of the employee's lay-off or at the discretion of the Hospital, pay in lieu of notice. 0 11 .06 In all other cases of lay-off, that exceeds two weeks, the Hospital shall give an employee in the bargaining unit who has acquired seniority one (1) week's notice, provided, however, such notice shall not be required if the lay-off occurs because of emergencies. For example: fire, power failure, act of God, equipment breakdown, or any other conditions beyond the reasonable control of the Hospital. 11.07 Notwithstanding Article 12.01 as long as there is not a laid off senior employee who is eligible for recall, an employee who is laid off, or an employee who has displaced an employee in another position as a result of the layoff, or an employee recalled to work in a different position than the one the employee held prior to the Iayoff, shall be entitled to return to the position the employee held prior to the layoff should it become vacant within twenty-four (24) months of the layoff, provided the employee remains qualified and able to perform the duties of the position. 11.08 Employees who have been laid off (i.e. are no longer working in the Hospital for up to twenty-four (24) calendar months shall be recalled to equal or lower -rated classifications in the order of their seniority, provided they have the skills, qualifications and ability to perform the available work and this shall not require posting. 11.11(a) In the event of a proposed layoff at the Hospital of a Permanent or long term nature the Hospital shall Provide the Union with no less than three (3) months written notice of the proposed layoff. Where a proposed layoff results in the subsequent displacement of any member(s) of the bargaining unit, the original notice to the Union provided above shall be considered notice to the Union of any subsequent layoff. (b) Redeployment Committee: (i) A Redeployment Committee will be established not later than two (2) weeks after the notice referred to in (a) above and will meet thereafter as frequently as is necessary. (ii) The mandate of the Redeployment Committee is to: 0 (1) Identify and propose possible alternatives to the proposed layoff(s) including, but not limited to, identifying work which would otherwise be bargaining unit work and is currently work contracted out by the Hospital which could be performed by bargaining unit employees who are, or would otherwise be, laid off. (2) Identify vacant positions within the Hospital or positions which are currently filled, but which will become vacant within a twelve (12) month period. (3) Identify the retraining needs of workers and facilitate such training of such workers who are or would otherwise be laid off. The Submissions of the Parties The Submissions of the Union The essence of the Union's argument is that the facts reveal that a position in the bargaining unit was eliminated, resulting in the "loss of a position" for the incumbent, so that it should have been treated as a proposed layoff within the meaning of Article 11. The Union is complaining about the way it and the Grievor were treated. In particular, the Union objects to being kept in the dark about the decision to "defunct" Ms. Ball's position as the GFT Secretary to the Head of the Department. Further, the Union complains that Ms. Ball was not told about the defunding, she was promised that she would retain her position in relation to the Department Head and then discovered, by way of a departmental email, that she was being reassigned to another position. The Union says that these facts raise the following issues for determination: [n 1. When a position is eliminated or an employee becomes surplus, what steps does the Collective Agreement require the Employer to take? 2. When a position is eliminated or any employee becomes surplus, what information is the Employer required to share with the Union and the incumbent? 3. How should that information be communicated? 4. When must that information be delivered? It was argued that the provisions of Article 11 must be read in their entirety to appreciate the scheme the parties put in place to deal with a situation of a surplus created by the elimination of a position. It was said that although Article 11.01(a) calls for the least senior person to be given notice of layoff, Article 11.01(b) allows the person whose position is being eliminated to elect to be voluntarily laid off, thereby removing the need for the notice of layoff. Accordingly, the Union argues that Ms. Ball should have been given the opportunities for election provided for in Articles 11.01(b)(i) and 11.02(c). It was also said that even before a notice of layoff is issued, the provisions of Articles 11.04 and 11.11(a) must be applied. In particular, the Union stressed that the facts of this case created a "proposed layoff' as contemplated by Article 11.11(a) that required the Hospital to give "meaningful" notice to the Union about the intention to eliminate a position, who would be affected, the reasons for the decision, and suggestions of alternatives. Further, it was said that the notice of proposed layoff would trigger consideration by the Redeployment Committee in order to fulfill its mandate under Article 11.11(b) while the layoff is still in the planning stages. The Union argued that the Hospital's decision to defend the position of GFT Secretary to the Department Head created a situation of a surplus because the incumbent no longer had a position. The Union submitted that if the Redeployment Committee is to have "any meaning", the notice of the decision to defund should have been given to the Union at least three months prior to changes coming into effect, and the 11 Committee ought to have met to consider the alternatives available within its mandate. It was conceded that the members of the Union on the Redeployment Committee may have been the same people as the ones who sat on the Joint Consultation Committee, and that the proposed changes were discussed in that forum. However, the Union stressed that the mandates of the two Committees are different, and the Collective Agreement requires that the Redeployment Committee become active in a situation of a proposed layoff. It was said that unless that Committee is allowed to become involved in situations such as this, the Employer would be free to move employees around in a classification "basically at its whim". The Union also argued that while the Employer asserted that past practice would support its position, the evidence at the hearing fell short of establishing a clear and consistent practice. It was stressed that this is a bargaining unit of 250-300 people, and the Employer was only able to put forward three examples of people who were transferred within their classification without a notice of layoff over the last 20 years. Further, it was pointed out that in one case, the documentation revealed an acknowledgement of the initial right to bump in a similar situation. It was also stressed that the Union cannot and will not pursue issues unless complaints are brought to them. Therefore, it was said that the Employer's "past practice" evidence fell short of establishing knowledge or acquiescence by the Union or of a clear enough pattern that would be of any assistance in interpreting the Collective Agreement. The Union is seeking a declaration that Article11.01(b) was breached in this situation of a "proposed layoff". There is no claim for compensation or individual relief. 12 The Submissions of the Employer The Employer began its submissions by stressing that the Union has failed to meet its onus of proving that there has been a violation of the Collective Agreement. Therefore, it was said that this Arbitrator has no authority to interfere with management's decisions in this case. It was said that the Collective Agreement gives the Employer the exclusive right to assign and transfer employees. Further, it was argued that because of the provisions of Article 8.04, the Union has no right to pursue this case as a Policy grievance when it involves the individual rights of Ms. Ball. Turning to the substance of the grievance, the Employer argued that this is not a situation where there was any "surplus" or where there was a person who the Employer no longer required. It was stressed that all the provisions of Article 11 only "make sense" if they are read to apply to a situation where there is an employee or employees that the Employer no longer wants to keep employed, i.e., where there is an actual reduction in the number of employees. It was said that if the Union's argument succeeds, the Employer would be put in a position of having to offer a layoff package to an incumbent and then hire someone to take their place every time it wanted to reassign duties. It was said that this is "illogical" and subjects the Hospital to considerable financial and uncontemplated liability. In particular, the Employer is concerned about having to pay the separation allowance and provide the other rights that exist for laid -off employees when the Employer would rather simply transfer the affected employee to another position where they can be productive. The Employer argued that it is in the sole position of determining when it has a surplus that would trigger the requirement to issue a notice of layoff. It was said that there is no need to bump or offer early retirement packages where there is no actual surplus of employees, as was the case here. It was also stressed that the language of Article 11 makes it clear that the parties intended layoff procedures to kick into gear only in the event of a person actually being out of a job; reference was made to Articles 11.44 - 11.08. 13 Turning to the specific facts of this case, the Employer stressed that Ms. Bail was hired into the position of a GFT Secretary, she has remained in that position and classification at all times and has performed a variety of duties consistent with that position in her various assignments. It was also stressed that there is no classification or official recognition of a specific position of Secretary to the Department Head, she has lost no time or money, there was no evidence of any change in the size of the bargaining unit, and nothing in the Collective Agreement suggests that a change in the funding of a position triggers a surplus situation. The Employer argued that what simply happened in this case was that a new Department Head took over, he wanted to keep his previous Secretary in a role as an Executive Assistant, and this was funded from a source other than this Employer. Accordingly, the Grievor was reassigned to another GFT Secretarial position. Given that there was no staff reduction, the Employer says that this is not a surplus or layoff situation. Further, it was said that the Union has no cause to complain about the process or the results because it was notified of the decision to move Ms. Ball in October, the matter was discussed at the Joint Consultation Committee meetings, and Ms. Ball's job security was ensured. The Employer feels that since the same people from the Union would have been on a Redeployment Committee, it is disingenuous of the Union to complain about any failure to formally convene in the format of that Committee. Further, it was stressed that Ms. Ball was kept informed and accepted the offer to continue working as a GFT Secretary to the same Doctor in his new role. The only changes in her duties were those specifically related to assisting a Department Head in his/her departmental duties. The Employer stressed that there was no proposed or actual layoff revealed in the evidence. The Employer expressed concern that if the Union's argument is taken to "its logical extreme", every reassignment would mean that the Employer would have to issue a notice of layoff to someone, the Redeployment Committee would have to convene, and early retirement would have to be offered, even if no 14 staff reduction is being contemplated. It was argued that the Collective Agreement does not impose such "huge" limitations on management's rights. It was also argued that the evidence of past practice shows that GFT Secretaries have been transferred in the past, with the knowledge of Union officials, and without any suggestion being made that the layoff provisions would come into play. In addition, the Employer argued that the °defunding" issue is a "red - herring" because, while there may have been a change in the funding arrangements for administrative support to the Department Head, this Employer has continued to "fund" a GFT Secretarial position for Ms. Ball. The Employer relied upon the following authorities in support of its arguments that a transfer is something quite different from a layoff, that a layoff only occurs when there is a cessation of work and/or a reduction in complement, and that there are no proprietary rights to certain positions unless they are specified in the Collective Agreement: Brown and Beattie, Canadian Labour Arbitration, Canada Law Book, 2008; Palmer, Collective Agreement Arbitration, Third Edition, Butterworths; Ottawa Civic Hospital and CUPS' 576, (1979) 24 L.A.C. (2d) 244 (Carter); Ontario Produce Co. and Teamsters Union, Local 419, (1991) 22 L.A.C. (4th) 274 (Haefling); York -Finch General Hospital and O.N.A. (1993) 32 L.A.C. (4tt') 326 (H. D. Brown); Canada Safeway Ltd. and R. W.D.S. U., Local 454, (1994) 44 L.A.C. (0) 325 (Rasmussen); Westmin Resources Ltd. and C.A.W., Local 3019, (1996) 54 L.A.C. (4th) 332 (Blasina); and Downtown Eastside Residents' Association and C.U.P.E., Local 9004, (2008) 173 L.A.C. (4th) 90 (Nordlinger). In summary, the Employer argued that the Union had failed to establish that a layoff occurred, that the Employer has the presumptive right to assign and transfer employees within their classifications, and that nothing in the parties' Collective Agreement has restricted those rights. Further, the Employer stressed that nothing in the contract supports the Union's request for Imposing arbitral direction on what a layoff notice should contain or when it should be issued. Finally, it was said that the Union has no right to bring this case as a Policy grievance because the claim relates only to the rights of the individual, Ms. Ball. 15 The Union's Reply Submissions The Union argued that the remedy being requested falls properly within the scope of a Policy grievance because the complaint is about the rights of the Union in the event of the elimination of a position. The Union also argued that the cases cited by the Employer are of no assistance because they deal exclusively with actual layoffs, whereas the Union's claim in this case arises in the circumstances of a "proposed layoff' which has special recognition in this Collective Agreement in Article 11.11(a). It was stressed that this contract distinguishes the Employer's obligations in the event of a layoff or a "proposed layoff". The Union conceded that no actual layoff occurred in this situation, but it was argued that the Employer failed to fulfill its obligations under Article 11.11(a) in the event of the proposed layoff of Ms. Ball from the position of Secretary to the Department Head. The Union's complaint was clarified to focus on the fact that the Employer failed to acknowledge that the Redeployment Committee should be triggered in the event of a proposed layoff. It was said that when the Employer decided that it would no longer fund the position of Secretary to the Department Head, the incumbent in that position was effectively surplused because her work was no longer there. It was said that this is what created the "proposed layoff'. The Union also clarified that this case is not about whether the Employer has the unfettered right to transfer people within a classification. That is an issue that remains a matter of dispute between the parties and has not yet been resolved through the arbitration process. While not conceding that the Employer has such a right, the Union cautioned that this is not the issue before this Arbitrator and should not be ruled upon in these proceedings. The Decision It should be noted as a preliminary matter that since the Policy grievance giving rise to this hearing referenced a breach of Article 22(11)(c) over work being done by someone outside of this bargaining unit, the Employer objected at the outset MI of this hearing to the case proceeding with a focus on the layoff language in Article 11.11. It was said that this amounted to an inappropriate amendment or alteration of the grievance. The Union responded to this objection by asserting that the grievances were about the treatment of the Grievor and the Union with regard to the events surrounding the duties performed by the Secretary to the Head of the Department. It was emphasized that production and discussions leading up to this hearing clarified the issues for the parties. They resolved what was originally thought to be a contracting out complaint, but left a dispute about whether there had been a violation of Article 11.11 and whether the Redeployment Committee ought to have been convened. Further, the Union asserted that it had made it clear in its processing of the grievance and in its discussions with the Employer that the essential nature of the case was its complaint that the factual context created a situation where a bargaining unit position was "discontinued", thereby creating a surplus and potential layoff. The Union's complaint was that this should have triggered the mechanisms that the Collective Agreement provides in the event of a proposed layoff under Article 11.11. Accordingly, the Union asserted that the hearing should proceed on that basis. The Employer voiced strong objections, complaining that the fundamental nature of the grievance had been changed and particularly warning that the parties' "without prejudice" discussions during the grievance process and mediation efforts should not be allowed to influence the nature of a hearing. However, it was ruled that since the Union had clarified its position with the Employer long before the formal hearing commenced, there was no prejudice to the Employer in terms of knowing the case it had to answer. Further, it was concluded that the essential issues raised by the facts surrounding the grievances had to be resolved. The parties were assured that nothing said or done during the grievance process or mediation would have any effect upon the consideration of the merits of the case. On the other hand, the parties were reminded that mediation efforts can properly be utilized to clarify or focus the elements of a dispute. That is what occurred in this case. Therefore, the matter 17 was allowed to proceed with its focus being on whether the facts established a violation of the layoff provisions, and Article 11.11 in particular. Turning to the merits, the threshold issue in this case is whether the facts reveal any reason to invoke the provisions of Article 11. This Collective Agreement gives the Employer exclusive rights with regard to the assignment and transfer of employees unless "specifically limited" by the contract (Article 5.01), so any restrictions on those rights must be concretely contained in the rest of the contract. In the fact situation of this case, the Union points to the provisions of Article 11 for those restrictions. Article 11 is titled "Layoff and Recall". The Union properly concedes that there was no actual "layoff in this case. No one Iost hours, compensation or classification status. So within the technical definition of layoff as recognized in the cases cited by the Employer, there was no layoff. But that determination does not end the case. The language of Article 11 does not restrict itself to situations of actual Iayoff. A reading of the totality of the clause reveals that the provisions are designed to create rights and responsibilities for both parties long before a notice of layoff has to be delivered or an actual layoff takes effect. For example: 11.01(b)(i-iii) apply to "an employee whose position has been deemed surplus and who has not received notice of layoff. 11.04 creates a duty to offer early retirement "prior to issuing notice of layoff'. 11.11(a) requires written notice to the Union "in the event of a proposed layoff'. 11.11(b)(i) requires the establishment of a Redeployment Committee "not later than two (2) weeks after the notice" of the proposed layoff referred to in 11.11(a). The obvious purpose of these provisions is to allow the parties and the affected employee(s) to come to terms with the possibility of a declaration of surplus, and OR to plan and/or find ways of avoiding some negative impacts upon incumbent(s), the bargaining unit and the Employer itself. Other rights are set out for the parties when there is a delivery of a notice of layoff and in the event of the actual layoff. Therefore, it has to be recognized that this Collective Agreement creates specific and distinct rights in the situations before and after a layoff notice is issued or put into effect. These are limitations on management's rights. Therefore, the rights of the incumbent and the Union before a layoff can modify or limit management's rights. This brings us to the question of what happened in this case. Ms. Ball worked in the classification of GFT Secretary. Her specific duties were to serve as the Secretary to the Head of the Department of Psychiatry at the Providence Care facility. Those duties and that assignment are not recognized in the contract as a separate classification or position. However, in October of 2007, the Employer decided to discontinue funding for that position. That meant that no one from this bargaining unit would continue to sere in that capacity. The duties that had been performed by the GFT Secretary, along with some additional supervisory responsibilities, were assigned to someone outside this bargaining unit. As a result, the duties that had once created a bargaining unit position were removed from this bargaining unit. This left the incumbent in a situation where she was no longer required to fulfill her previous duties. What could this be other than a situation where her position was deemed to be surplus? She was moved from her work location, she became fearful for her job security and she found herself in a situation where she did not know where or if she would remain working. While there may still have been a need for her services elsewhere, the key question under Article 11.01(b)(i) is whether she was someone "whose position was deemed to be surplus." Once someone's "position has been deemed to be surplus", Article 11 is triggered. While Ms. Ball was never laid off, the GFT Secretarial position that she had occupied was eliminated because it was no longer required by the Department Head or funded by this Employer. Management may well have the right to make the decision to discontinue the 19 funding or redesign that position. But such a decision cannot be made without triggering the consequences spelled out in the Collective Agreement. The consequences of deeming a position to be surplus are really very simple. At the outset, they create the potential of a layoff. There is one less position in a bargaining unit, therefore, there may be a potential surplus of employees. Not all collective agreements make provisions for a "proposed layoff', but this one does. The discontinuance of the bundle of duties that displaces an incumbent is a "proposed layoff' of a permanent or long-term nature. Under this Collective Agreement, it mandates the convening of the Redeployment Committee. That Committee is charged with specific tasks, including: 1. identifying and proposing alternatives, such as identifying work that could be bargaining unit work that is being contracted out 2. identifying vacant or soon -to -become vacant positions 3. identifying retraining needs and facilitating training for employees who are or would otherwise be laid off Again, the purpose of these provisions is to enable the parties to work together to find better alternatives to laying off surplus employees long before a layoff takes place. This also gives the Union meaningful input into organizational issues that impact its membership and its bargaining rights. That is why these provisions "kick in" at the point of a "proposed layoff", long before there is a need for a notice of layoff or actual layoff. They make no sense or would have no effectiveness if they only were utilized after a decision was made to impose layoffs or after the notices of layoff were issued. If that were the case, the Redeployment Committee would be a sham, hitting itself against the wall created by a de facto reality of a preconceived decision. While the Redeployment Committee has no veto power over a management decision to enact a layoff, that Committee has an important function of meeting and exercising its specialized mandate under Articles 11.11(b)(ii)(1-3) within two weeks after the Employer NA gives the Union notice of a proposed layoff, as per Article 11.11(a). The mere fact that the Joint Consultation Committee may be composed of the same people as the Redeployment Committee does not eliminate the requirement convening in that format and fulfilling the mandate under Articles 11.11(b)(ii)(1-3). This decision does not mean that the Union has to be given notice under Article 11 A 1(a) whenever the Employer decides to transfer employees within a classification. That is an entirely separate matter. Further, this decision does not mean that a notice of layoff must be given each time a Doctor decides to replace a GFT Secretary with someone else in this bargaining unit. Those are questions that the parties may have to resolve in other proceedings. This decision only applies to situations where a GFT Secretarial position is eliminated and the duties associated with that position are undertaken by someone outside of this bargaining unit. Those are the facts that make a "position surplus" and leave the incumbent wondering about his/her rights. If s/he could be assigned or placed without regard to Articles 11.01 (b)(i) and/or 11.11(a), those clauses would have no meaning or effect. Their placement in the Collective Agreement puts limitations on management's right to transfer employees. They mark a differentiation between management rights before and after a situation of surplus or proposed layoff arises. Accordingly, it must be concluded that while management has exclusive rights to assign and transfer employees under this Collective Agreement, the contract has also made those rights subject to the rights of employees and the Union in the event that there is an elimination of a position with an incumbent left in the situation of being "deemed surplus" and/or facing a "proposed layoff'. The determination of whether those situations exist cannot be at the sole prerogative of management. Article 11.01(b)(i) gives rights to "an employee whose position has been deemed surplus" even before a notice of layoff is required. Further, if a position has become surplus, that means that the work no longer exists and there could be a layoff. If it is just left to management to declare when and if it decides 21 to declare a surplus or declare actual layoff before the protections of Article 11 come into play, they would have no force or effect. On the other hand, the protections are not unduly restrictive upon management. They merely require that the incumbent in the surplused position be given the option of a voluntary layoff. This is a choice that can be accepted or rejected by the Employer "at its sole discretion"; Article 11.01(b)(iii). Further, they mandate the convening of the Redeployment Committee to consider alternatives and options before any layoff notices are required or issued, while at the same time preserving the Employer's ultimate rights to manage and direct the workforce. While the Union suggested that this case calls for directions to be given with regard to the contents and timing of notices that are required in these situations, that is not necessary. The only point that must be made is that the Redeployment Committee must be furnished with sufficient knowledge and information to enable it to hold meaningful and effective discussions. The form and content of that information will be dependent upon the situation. Any withholding of relevant information will hamper the work of the Committee and subvert the intent of the parties' contract. For all these reasons, it must be concluded that the facts of this case support a finding that the Employer ought to have treated the elimination of this particular GFT Secretarial position as a "deemed surplus" situation that triggered the requirement to have the Redeployment Committee consider the options available for all concerned. I so declare. Since no other relief has been requested, this declaration resolves the grievances in the Union's favour. Dated at Toronto this 15th day of October, 2009.