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HomeMy WebLinkAbout2013-3555.Kimmel-Union.18-11-29 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2013-3555; 2013-1446; 2013-1574; 2013-1696 UNION# 2013-0533-0020; 2013-0999-0049; 2013-0999-0063; 2013-0999-0069 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Kimmel-Union) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Reva Devins Arbitrator FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING April 25, May 9, 16 and 23, August 27 and September 5, 2018 -2- DECISION [1] This is one of a series of grievances that arise from the operation of the Transition Exit Initiative, (“TEI”), set out in Appendix 46 of the Collective Agreement. I have now issued two decisions regarding the scope of the Employer’s discretion to allow or deny a request for TEI: the first was issued on January 12, 2016 regarding Ms. Koeslag and Brideau and the second was issued on June 28, 2018 with respect to the grievance of Mr. Vadera. This is the third grievance presented by the Union. [2] Sheila Kimmel, the Grievor in this case, applied for TEI in 2013 and her request was not approved by the Employer before she retired in 2016. The Union maintains that the Grievor’s position had undergone a wholesale transformation such that it was an improper exercise of the Employer’s discretion not to approve her request for TEI. The Employer maintains that, although her duties and branch had changed, Ms. Kimmel and her position were both still required and therefore it was within the proper exercise of its’ discretion not to approve her request. [3] There was a great deal of evidence regarding the details of Ms. Kimmel’s precise job duties, both historically in the Ontario Public Service (“OPS”) and in the latter years of her tenure within the Infrastructure Technology Services branch (“ITS”) of Treasury Board Secretariat (“TBS”). While I have considered all of this evidence, I will largely restrict my recitation of the evidence to those components that are relevant to my view of the proper interpretation of Appendix 46. [4] It is also important to note that there was very little dispute between the parties on the facts. Generally, the parties agreed that Ms. Kimmel’s work changed substantially over the course of her employment. She began to work in the OPS in -3- 1985 as a Senior Telecom Project Leader, with expertise in the procurement of small telephone systems. For a variety of reasons, in the latter years of her tenure, Ms. Kimmel’s responsibilities moved away from procurement of small telephone systems towards a focus on contract management of new and existing systems. Around the same time as the focus of the Grievor’s work changed, there was a concurrent shift in the general approach to procurement functions. Whereas subject matter experts in different branches formerly did procurement, it was subsequently consolidated in corporate services. The changes experienced by the Grievor and the pertinent details surrounding her ultimate retirement are summarised below. Evolution of the Grievor’s Duties [5] At the start of her career with the OPS the Grievor focussed on procuring small telephone systems. However, as the telecommunication field evolved, there were corresponding changes in the nature of her work. These changes began as early as 2011 and were well underway by 2013 when Ms. Kimmel came to the view that her job was becoming less and less important: her duties were less well defined, she had less decision-making autonomy and she was no longer leading projects. Consequently, she indicated that she was available for a voluntary exit and requested approval for the benefits associated with the TEI. [6] The Grievor did not receive a response to her application before she retired in 2016, however, her duties continued to evolve over the remainder of her tenure. In early 2014 staff of the telecommunication procurement branch were specifically advised not to engage in further procurement of small telephone systems. At that -4- stage, this comprised the core of the Grievor’s work. According to her evidence, the Grievor no longer performed many of her previous duties including needs analysis, installations, feasibility studies, leading teams, participating in provincial wide telecom projects, costing or trouble shooting. She considered herself confined to a very limited consulting role. [7] In 2015 Ms. Kimmel agreed to join the contract management team. She was, however, not provided with a new formal job description and was unsure of how her performance would be evaluated. Furthermore, she found that her work was frequently redistributed and her assignments were constantly changing. By the end of 2015, the Grievor felt that her contract management role was over. She knew that there was an impending reorganisation and she had the impression that local management were using her to occupy a position merely to ensure that it wasn’t lost. In the Grievor’s view, this was precisely the kind of transition for which the TEI was intended to provide a cushion. [8] The Grievor’s managers, John Nishio, Daniela Spagnolo and Ryan Lucas, acknowledged that the Grievor’s role changed, but regarded her as a highly skilled employee with deep technical knowledge and procurement experience, which they continued to need and rely upon. From their perspective, her institutional knowledge was critical and she played an important role supporting the legacy phone systems as well as assisting with new procurements right up to the time that she retired. -5- Evolution of the Procurement Role [9] In 2013 Ms. Kimmel reported to the senior manager of acquisitions and contract management in the telecommunications branch, which provided telecommunication support as a central service to the OPS, including procurement and contract management support for vendors. In January of 2014, the Ministry indicated that the ITS organizational structure was under review and that possible outcomes might include staff reductions in a number of branches, including the Grievor’s. This was part of a larger procurement initiative designed to consolidate and standardise the work and optimise effective allocation of resources. Procurement work had previously been performed by experts working in distinct, narrowly defined fields of technology. There was a subsequent move to a more horizontal, centralised approach that supported procurement and contract management across the range of technology used in the OPS. [10] By 2016, Ms. Kimmel’s position, along with several others, was slated to move to the corporate services branch, headed by Ryan Lucas. The ITS Procurement Framework Transformation Plan, 2016, included a proposed organizational model, which set out the positions for the proposed unit, including the Grievor’s SO5, Senior Telecom Project Leader position. [11] The Senior Telecom Project Leader position eventually moved to corporate services in 2017, however, it has remained vacant since the Grievor’s retirement. Management attributed the delay in filling the vacancy to pressures from competing demands to staff the unit. For operational reasons, managers could not move forward with recruitment for all of the positions at the same time and Ms. Kimmel’s -6- former position was assigned a lower recruitment priority. Consequently, it has still not been filled with some of the work previously performed by Ms. Kimmel put on hold and some assumed by others, who now work extensive overtime. The job description for the Grievor’s former position has not yet been finalised and management anticipates that a common job document will be drafted for the two SO5 positions, the Senior Telecom Project Leader and the Service Order Management – Subject Matter Expert. The Grievor’s Retirement [12] The Grievor had considered retiring as early as October 2012. The Employer and the Union were discussing future pension entitlements at that time and the Grievor was concerned that she might lose some of her existing benefits unless she retired right away. She told her manager that she might need to retire, but, ultimately, the proposed changes were not implemented, and, in June 2013, she rescinded her intention to retire. [13] Nonetheless, as a consequence of her changing work environment, the Grievor concluded that her job was likely to disappear and she applied for TEI on March 6, 2013. The Grievor’s application was not approved and she remained with the OPS until November 2016. [14] Ryan Lucas, the senior manager of the procurement team, was aware of Ms. Kimmel’s application for TEI and, when asked, indicated that he was prepared to support it as long as he was not required to give up her position. He concluded that the branch had an ongoing need for the Grievor’s position based on the amount of work that needed to be done. Moreover, he considered Ms. Kimmel’s position to be -7- an important component of the business case for the branch’s modernisation initiative. Therefore, he opposed Ms. Kimmel’s application once he understood that her position would be lost if she was granted TEI. [15] At the time of her retirement in 2016, Ms. Kimmel indicated that she was retiring “under duress” to avoid impending changes that would implement a cost sharing model for retiree benefits. Before she retired, she submitted a detailed proposal with a workload and risk analysis, offering to defer her retirement to assist the branch with their workload. She stipulated, however, that she was only willing to defer her departure if she was exempted from the upcoming post retirement changes to the payment of premiums. Management did not accept her proposal and she retired. Appendix 46 [16] Appendix 46 sets out the parties’ agreement to a Transition Exit Initiative and provides as follows (January 24, 2013): 1. All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI). 2. An employee may request in writing voluntary exit from employment with the OPS under the TEI, which request may be approved by the Employer in its discretion. The Employee’s request will be submitted to the Corporate Employer. The Employer’s approval shall be based on the following considerations: i. At the time that an employee TEI request is being considered, the Employer has plans to reduce positions in the OPSEU bargaining unit; and -8- ii. The Employer has determined in its discretion that the employee’s exit from employment supports the transformation of the Ontario Public Service. The Employer shall provide written confirmation of receipt of the employee’s request within 30 days with a copy to the Union. If the employee’s request is approved, the Employer shall provide written notification to the employee with a copy to the Union, and such notification shall include the job title, classification, Ministry and workplace of the employee. An employee may withdraw his/her request by written notice to the Corporate Employer. 3. If there is more than one employee eligible to exit under the TEI, the determination of who will exit shall be based on seniority. 4. An employee who has received notice of Employer approval to exit under the TEI shall be deemed to have accepted one of the options as outlined in Paragraph 5. 5. An employee who exits from employment under TEI will only be entitled to the following: i. A lump sum of six (6) months’ pay, plus one (1) week pay per year of continuous service; or ii. Continuance of salary plus benefits (except STSP and LTIP) for six (6) months commencing on the date set out in Paragraph 6, plus one (1) week pay per year of continuous service or its equivalent period of further salary continuance plus benefits (except STSP and LTIP). For clarity, during the salary continuance period, employee and Employer pension contributions and vacation and pension credits will continue to accrue. Notwithstanding the above, the further salary continuance period shall not be greater than the length of time between the commencement of the salary continuance and the end -9- of the month in which the employee will attain sixty-five (65) years of age. Any remaining balance will be paid forthwith as a lump sum. iii. Where the employee does not choose a specific pay-in–lieu option, the employee shall be deemed to have chosen the lump sum option under 5(i). 6. Where an employee is exiting under the TEI, his or her last day at work shall be five (5) working days after the notice of Employer approval to exit is received, or such other period as the employee and the Employer shall agree. 7. The payment under Paragraph 5 and any payout of unused vacation or compensating leave credits are payable as soon as possible, but no later than three (3) pay periods following the employee’s exit under the TEI. 8. Employees exiting under the TEI shall have the entitlements in Paragraph 5 in lieu of the entitlements in Article 53 or 78 (Termination Payments) and paragraph 4 (b) of Appendix 9 (Employment Stability) of the Collective Agreement. 9. The parties agree that all employees exiting under the TEI are doing so pursuant to a program of downsizing undertaken by the Employer and in so doing are preventing another employee from being laid off. Accordingly, the Employer agrees to take all necessary steps to attempt to ensure that the Human Resources and Skills Development Canada recognizes that the entitlement to Employment Insurance of employees who are laid off and who take a pay-in-lieu of notice option qualifies as registered ‘workforce reduction processes’ under the Employment Insurance Act. 10. The parties agree that at no time will the numbers of employees exiting under the TEI exceed the number of positions identified by the Employer to be reduced in the bargaining unit. 11. This MOA forms part of the collective agreement. -10- Submissions [17] The Union submitted that the Grievor’s position, unit and division were all undergoing significant change during the period preceding and concurrent with her TEI request. She began her OPS career as a specialist in the procurement of small telephone systems within the telecommunications services branch. In the period after the Grievor submitted her request for TEI, she was no longer working to her original job description, she was no longer doing procurement work related to small telephone systems and her position was transferred to another branch. The Union maintains that the evidence supports the conclusion that Ms. Kimmel’s job had become redundant and that she was merely acting as a place saver to ensure that a new position, as yet undefined, would not be lost. The Union characterised the Grievor as the perfect candidate for the TEI: the world of IT was changing, she was nearing the end of her career and was performing work that was increasingly less needed in the OPS. [18] In the Union’s submission, the evidence demonstrates that dedicated resources within a telecommunication branch for telephone systems procurement were no longer required and the resources to fund the old model were transferred to the corporate services branch to create a new ITS procurement framework. In the Union’s submission, this is more accurately viewed as absorption of resources and not a transfer of the Grievor’s former function or position. As further support for their position that the Grievor’s position no longer exists, it notes that there is still no job description, final classification, posting or incumbent in the position that moved to the corporate services branch. Essentially, it took the view that the -11- Grievor’s position disappeared and another position was created in the corporate services branch. [19] The Employer submitted that the salient facts were few and uncontroverted. The position that was filled by the Grievor always supported the acquisition and contract management of telecommunication throughout the entire OPS. There have been undeniable changes in both the technology related to telecommunication and the manner in which procurement is done. Consequently, what the Grievor did changed over the years, as did the base from which the work was done. That change is still ongoing, with the move of the Grievor’s position to corporate services. [20] The Employer argued that modernisation and technological changes do not mean that existing employees should be required or expected to vacate their positions. In the Employer’s submission, the Union’s position is tantamount to suggesting that senior employees should be surplussed by the Employer when faced with an evolving work environment. The Employer does not agree and submitted that this outcome is inconsistent with the Board’s previous awards: Vadera, supra; OPSEU (James et al.) v. Treasury Board Secretariat (2015), GSB No. 2012-3345 (Petryshen). [21] In any event, in their submission, there was no shortage of work for the Grievor, right up to the date of her retirement. She had a significant workload prior to her departure and there is no evidence that she would not still have work to do if she had remained with the OPS. To the contrary, the evidence of her managers was that her departure resulted in gaps that required others to work overtime to perform -12- the functions of her former position. The Employer also vigorously denied that the Grievor was merely occupying a position in order to save her position for an unrelated, future role. The nature of technological changes includes a critical role for employees like the Grievor while transitioning to a new system. In IT, it is essential to assure the previous system keeps running while the new system is brought online. [22] The Employer further submitted that there was no evidence that the Grievor’s job ended when she retired or that it is now defunct. While the Employer does not object to the evidence regarding what has happened or might happen to the position after the Grievor retired, it maintained that it is not relevant. In the alternative, while the evidence confirms that the position has been included in a reorganisation of the procurement functions, even if the job description is subject to change in the future, that does not establish that her position was eliminated. [23] In previous awards interpreting Appendix 46 the Board has noted that the TEI was designed to encourage employees to leave to avoid involuntary layoffs. The Employer submitted that in this case, granting the Grievor’s request for TEI, a costly incentive, would not result in any benefit to the Employer. Management determined that they did not wish to lose the Grievor’s position and they had an ongoing need for the work performed by the Grievor. Despite changes in the work performed by the Grievor, it was still important work that the Employer needed done. In the end, the Grievor retired from the OPS for financial reasons that were unrelated to her work assignments. In the Employer’s submission, her continued employment for a number of years after she applied for TEI is further evidence that her position was not eliminated. -13- [24] Lastly, the Employer rejected the Union’s submission that it had in any way acted in bad faith in not approving the Grievor’s request for TEI. The Employer was under no obligation to grant every request. In the Employer’s submission, approving the Grievor’s request for TEI was not the only good faith response to the fact that her position was changing or that modernisation of the unit was taking place. In the Employer’s submission, IT positions are by their nature not static; and while functions might change over time, the Employer need not displace the affected employee. It is not bad faith for the Ministry to retain personnel, including the Grievor, despite changes affecting her position. [25] In reply, the Union argued that the Employer’s view of the TEI is so limited that the only circumstance in which their discretion would be exercised is where the employee and their position had already been identified for surplus or where letting this person go will spare another employee. In the Union’s submission, that is not what Appendix 46 says; it requires the Employer to exercise its discretion reasonably, based on the pertinent facts, which, it alleges, it did not do in this case. [26] The Union maintains that in this case, there was ample evidence of transformation of the OPS. The Grievor’s position was undergoing dramatic change, to the extent that a new job description was anticipated, in a newly reorganised branch. In the Union’s submission, transformation is about senior employees moving out and being replaced by employees who are a better fit with current operational needs. In this case, the Grievor’s work was effectively gone and the orderly transformation of the OPS should have included recognition of the need for a good faith transition from one generation to the next. -14- Analysis [27] The evidence in this case was uncontroverted. There were enormous changes in the Grievor’s duties over the course of her career in the OPS, including in the period immediately preceding and following her application for TEI. She started as an expert in the procurement of small telephone systems, however, technology changed and moved away from traditional small telephone systems. Within the OPS, the preferred model for the delivery of procurement services also evolved from imbedded experts in separate ministries to a generalist model with services delivered centrally in corporate services. That evolution is ongoing and, as of the date of the hearing, still not fully completed. [28] Ms. Kimmel was able to adapt to the shifts in her duties and, although she may have preferred to remain in a narrowly defined procurement role, she accepted a position in contract management and performed in that role in the final years of her career. From time to time, there was some uncertainty about her assignments and a lack of clarity regarding which job description she was working under. Nonetheless, she was busy, productive and valued. Her work was ongoing at the time of her retirement and she herself recognised her value when she offered to defer her retirement. [29] It was also clear that the Grievor was fiscally prudent and considered the overall financial impact of retirement when deciding on the timing of her departure. She contemplated retirement in 2012 in order to preserve her existing pension entitlements and then eventually decided to retire in 2016 to avoid changes that would be to her financial detriment. She openly acknowledged that her decision to -15- leave in November 2016 was predicated on prospective changes to the payment of premiums for retiree benefits and that the timing was not of her choice. [30] The Grievor’s position was also affected by a major reorganization and has moved over to a modernised unit in corporate services. Her former position is one of many on the organisational chart that has not yet been filled and I accept the Employer’s submission that this is due solely to competing pressures that required them to first fill other positions that were assigned a higher priority. [31] The Union essentially argued that the Grievor’s position was eliminated for all intents and purposes and that the Employer should therefore have granted her request for TEI. It suggested that the elimination of the Grievor’s position was underway in 2013 and was still unfolding throughout the remainder of her time with the OPS. It took the position that although the job description for the position absorbed into corporate services was nominally designated as the Grievor’s former position, it has not been finalised and it was clear that “something else” will emerge. [32] I accept the Union’s characterisation of the Grievor’s employment history to the extent that her role clearly evolved from that of a specialist in small telephone system procurement to a more general role. However, I am not persuaded that the evolution in the Grievor’s duties amounts to the effective elimination of her position. Her duties changed, and indeed her job description changed, but her position remained. And, while I appreciate that the final job description for the position that she formerly occupied has not been finalised, there is no evidence that Ms. Kimmel -16- would no longer be able to perform the duties associated with the position or that she would not have remained in it if she had not retired. [33] In any event, how the duties of her former position will deviate once a new job description is drafted remains highly speculative. The most relevant timeframe for the purposes of this grievance is the period preceding and following Ms. Kimmel’s request for TEI, up to her retirement. While the Union might argue a lack of good faith if the position was eliminated immediately or soon after her retirement, that is not this case. In this case, Ms. Kimmel continued to be employed for a period of three years after she first indicated that she was interested in an early retirement via the TEI. At that time, the Employer determined that she and her position were still needed and she continued to receive assignments. [34] At most, the Union’s argument amounts to the supposition that the Grievor’s position might become unrecognisable as a consequence of future changes to her former position. In my view, those prospective changes are merely that, changes that might occur at some point in the future, long after Ms. Kimmel retired. It is not a relevant consideration to whether she should have been granted an incentive to voluntarily exit the OPS years before those changes were to take effect. [35] Similarly, the Union may be correct that the specialised skills possessed by the Grievor will no longer be useful to the Employer at some point in the future. Regardless of what might have happened if she had stayed on in her job, that point was not reached prior to her retirement. Her managers valued the work that she was doing and the expertise that she possessed. The evidence supports their conclusion and indicates that they relied on her work and experience. The Grievor -17- herself recognised her ongoing value when she offered to defer her retirement in 2016, on certain conditions. Unfortunately, the Employer was unable to meet her conditions and so she retired. [36] Nor do I draw any negative inferences from the fact that the Grievor’s position remains vacant. The uncontroverted evidence from the Employer was that the work formerly done by the Grievor is still being done by others on overtime and that the position will be filled in the near future. The Grievor’s former position was one of many that migrated to corporate services as part of a multi-year reorganisation and modernisation initiative. Management has explained the delay in filling the Grievor’s position and that explanation was not challenged. On the evidence, before me, I do not find that the Grievor’s position was eliminated in fact or in effect or that the Grievor remained in the position merely as a “place holder”. [37] I have consistently found that the Employer has a broad discretion in approving the TEI. It is not completely unfettered, but management may grant a request to exit under the TEI where it has determined in its discretion that an employee’s exit will support the transformation of the OPS. It is not required to approve all requests, even where there is evidence of a change or transition, but has the discretion to determine when and how the incentive should be utilised. [38] I have also previously determined that technological change alone is not determinative of an affected employee’s application for a voluntary exit in accordance with the TEI (Vadera, supra). The Union now suggests that Appendix 46 should be used to facilitate the departure of senior employees, who would then be replaced by younger employees who are a better fit with the evolving needs of -18- the Employer. In other words, that ‘transformation’ of the OPS includes modernisation and the orderly transition from an older to a younger workforce. [39] There is no doubt that Ms. Kimmel felt that she was entitled to receive approval for her request for TEI. She was a long service employee who had experienced significant change in the work that she was performing. She was contemplating retirement and viewed herself as a prime candidate for TEI. The Union suggested that granting her request was an honorable way to assist her at the end of her career. [40] Although I am sympathetic to her situation, the Employer was entitled to exercise its’ discretion in a manner that it determined best utilised its’ resources. I have previously determined that the TEI is not a general retirement allowance and that it is not unreasonable for the Employer to limit the TEI to circumstances where the position occupied by that employee can be eliminated: It is certainly not arbitrary, unreasonable or discriminatory to exercise their broad discretion under Appendix 46 by limiting approvals to circumstances where the departure of the approved employee would free up a position to be eliminated. The Employer has chosen to focus the TEI on transforming the OPS through an orderly workforce reduction that avoids disruption and dislocation of employees where possible. That focus is clearly consistent with the underlying objective of the Appendix and with the explicit references in the Memorandum of Agreement to prospective layoffs and mitigating the impact on affected employees. (Vadera, supra, paragraph 29) [41] Having considered the Union’s submission in this case, I do not agree that the Employer’s failure to actively encourage or facilitate senior employees to “transition” out of the OPS amounts to evidence of bad faith. While the Union was obviously advocating for an option that would allow the Grievor, and others, to end -19- their career in the OPS with dignity, the Employer took a different view of its’ current and future operational needs. The Employer could have exercised its discretion differently, but the fact that it did not, even with a senior employee nearing the end of her career who had experienced workplace disruptions, is not evidence of bad faith. [42] I am also very troubled by the possible implications of adopting the Union’s submission. There can be a fine line between facilitating the voluntary exit of a senior employee and actively, and improperly, encouraging their exit. In my view, an initiative that is designed to “transition out” older employees is fraught with risk and the potential for allegations of discrimination. In any event, I agree with the Employer that approval for a voluntary exit is not the only possible good faith response to senior employees who have experienced changes in their working environment. [43] For all these reasons, I would dismiss the grievance filed by Sheila Kimmel with respect to the non-approval of her request for a TEI package. Dated at Toronto, Ontario this 29th day of November, 2018. “Reva Devins” ______________________ Reva Devins, Arbitrator