HomeMy WebLinkAbout2014-2551.Koeslag et al-Union.16-01-12 Decision
Crown 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#2014-2551; 2014-2984; 2013-1446, 2013-1574, 2013-1696
UNION#2014-0302-0010; 2014-0302-0012; 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
(Koeslag et al-Union) Union
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The Crown in Right of Ontario
(Treasury Board Secretariat) Employer
BEFORE Reva Devins Vice-Chair
FOR THE UNION Richard Blair
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Robert Fredericks
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING November 17, 2015
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Decision
[1] The Union filed three grievances regarding the interpretation and application of the
Transition Exit Initiative (TEI) in Appendix 46 of the Collective Agreement. There
are also numerous individual grievances that the parties agreed to hold in
abeyance pending the outcome of the Union’s policy grievances.
[2] In order to assist with the efficient resolution of these matters, the Employer raised
a preliminary objection, which was previously decided, and the parties now agree
to proceed with the grievances of Bev Koeslag and Nina Brideau on the basis of
the following agreed statement of facts:
a. At the time of their applications for TEI and the time of the grievances, the
Grievors were employed in the Retail Offices Branch of the Whitby office
of Service Ontario, Ministry of Government Services, in the position of
Customer Service Representative (CSR2 classification).
b. Service Ontario is organised into four regions covering the Province of
Ontario (Central Region, East Region, West region and North Region).
The Central region comprises 11 different offices, including the Whitby
office, the Barrie office and the Mississauga office.
c. At the time the Grievors’ TEI applications were considered, it is conceded
that the Employer had plans to reduce positions in the OPSEU bargaining
unit, pursuant to para. 2(i) of Appendix 46 of the OPSEU Collective
Agreement.
Bev Koeslag Grievance
d. On February 11, 2014, Ms. Koeslag submitted a TEI application. Ms.
Koeslag’s continuous seniority date was May 28, 1979. In her application,
she requested the option of receiving six month’s salary continuation to
the date of her retirement, pursuant to clause 5(ii) of Appendix 46.
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e. Ms. Koeslag was originally employed in the Ministry of Health in 1979. In
or about July 2000, she commenced providing front-line customer service
in the Oshawa office of the Ministry of Health, still classified at the OA9
level.
f. Prior to her TEI application, Ms. Koeslag’s position was transferred to the
Ministry of Government Services, Retail Operations Branch, and her
location changed from Oshawa to Whitby, Ontario where she was
classified as a Customer Service Representative 2 performing customer
service functions including with respect to Health Card client registration,
the function she had been performing at the Ministry of Health. In addition
to Health Card registration, prior to Ms. Koeslag’s application for the TEI,
she took on additional functions related to products such as drivers’
licenses and vehicle registration.
g. On February 12, 2014, the Employer acknowledged receipt of Ms.
Koeslag’s TEI application.
h. Following her application, the grievor had discussions with her acting
manager regarding her TEI request, the payment options, and the exit
date.
i. Because she had not yet reached her 90 factor, Ms. Koeslag did not view
the “lump sum” option as a viable one for her. Ultimately, however, the
Employer’s decision was made for the reasons set out below, and neither
the payment option nor the exit date were factors in the employer’s
decision.
j. On June 16, 2014, Ms. Koeslag withdrew her TEI application dated
February 12, 2014.
k. On June 20, 2014, Ms. Koeslag re-submitted a TEI application.
l. On June 20, 2014, the Employer acknowledged receipt of Ms. Koeslag’s
re-submitted TEI application.
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m. In July 2014, the Employer considered Ms. Koeslag’s re-submitted TEI
application and concluded that she was not eligible for TEI, due to
operational needs. In this regard, the Employer determined that the Whitby
office of Service Ontario was under its full-time budgeted complement and
it would be necessary to backfill any vacancy created as a result of
granting Ms. Koeslag’s TEI application. As a result, the approval of Ms.
Koeslag’s application would not result in net cost savings for the
Employer.
n. On July 31, 2014, Ms. Koeslag retired from the OPS on an unreduced
pension. On the date of her retirement, she was 55 years old and had 35
years of service.
o. On July 31, 2014, Ms. Koeslag filed grievance #2014-0302-0010 disputing
the Employer’s non-approval of her TEI application.
p. Following her retirement, the Employer conducted a job competition to fill
the vacancy created by Ms. Koeslag’s retirement. In addition, Ms. Koeslag
returned in June 2015 to work at the Whitby office in a fixed term capacity
in the same position, working casual hours.
q. Since she was transferred out of the Ministry of Health and was moved to
the Whitby office, several of Ms. Koeslag’s former colleagues from the
Ministry of Health in the Oshawa office have retired, and were granted the
TEI. At least one of those colleagues, Margaret MacDonald, Support
Services Clerk at the OA6 level, was junior to Ms. Koeslag, with a
continuous service date from October 14, 1980. Her TEI was approved
March 28, 2014.
Nina Brideau Grievance
r. On February 11, 2014, Ms. Brideau submitted a TEI application. Ms.
Brideau’s continuous service date is December 3, 1979. Her application
requested the salary continuance option under paragraph 5(ii) of Appendix
46.
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s. Following her request, the grievor had discussions with her acting
manager regarding her TEI request, the payment options, and the exit
date.
t. Because she had not yet reached her 90 factor, Ms. Brideau did not view
the “lump sum” option as a viable one for her. Ultimately, however, the
Employer’s decision was made for the reasons set out below, and neither
the payment option nor the exit date were factors in the employer’s
decision.
u. Ms. Brideau was originally employed in the Ministry of Health in 1979. In
or about June 1995, she commenced providing front-line customer service
in the Oshawa office of the Ministry of Health, still classified in the OA8
level.
v. Prior to her TEI application, Ms. Brideau’s position was transferred to the
Ministry of Government Services, Retail Operations Branch, and her
location changed from Oshawa to Whitby, Ontario where she was
classified as a Customer Services Representative 2 performing customer
service functions including with respect to Health Card client registration,
the function she had been performing at the Ministry of Health. In addition
to Health Card registration, prior to Ms. Brideau’s application for the TEI,
she took on additional functions related to products such as drivers’
licenses and vehicle registration.
w. On February 12, 2014, the Employer acknowledged receipt of Ms.
Brideau’s TEI application.
x. In July, the Employer considered Ms. Brideau’s TEI application and
concluded that she was not eligible for TEI, due to operational needs. In
this regard, the Employer determined that the Whitby office of Service
Ontario was understaffed and it would be necessary to backfill any
vacancy created as a result of granting Ms. Brideau’s TEI application. As a
result, the approval of Ms. Brideau’s TEI application would not result in net
cost saving for the Employer.
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y. On September 22, 2014, Ms. Brideau filed grievance #2014-0302-0012
disputing the Employer’s non-approval of her TEI application.
z. Ms. Brideau continued to work as a Customer Service Representative at
the Whitby office until her retirement January 30, 2015.
aa. Since she was transferred from the Ministry of Health and was moved to
Whitby, several of Ms. Brideau’s former colleagues from the Ministry of
Health have retired, and were also granted the TEI. At least one of those,
Ms. Margaret MacDonald, was junior to Ms. Brideau, with a continuous
service date from October 1980.
TEI Approvals in Other Service Ontario Offices
bb. Since the implementation of TEI, the Employer has approved the TEI
applications for the following Customer Service Representatives in other
Service Ontario offices in the Central Region:
Barrie office: Jacqueline Bennett (CSR2)
TEI approval date: December 16, 2013
Continuous Service Date: Feb. 25, 1991
Jacqueline Fuhre (CSR4)
TEI approval date: June 16, 2015
Continuous Service Date: July 11, 1994
Mississauga office: Alicia Mahipat (CSR2)
TEI approval date: September 2015
Continuous Service Date: May 4, 1998
cc. Since the implementation of TEI, Customer Service Representatives in
Service Ontario offices in other regions have also had their TEI
applications approved.
dd. The Employer determined that the exit of the applicants who were
approved for TEI supported the transformation of the OPS. For example,
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the Barrie office in which the applicants worked were over their budgeted
full-time complement, and it would not be necessary to backfill for any
vacancies created as a result of the exit of those employees. As a result,
the approval of these TEI applications resulted in net cost savings for the
Employer.
Appendix 46
[3] Appendix 46 sets out the parties agreement to a Transition Exit Initiative and
provides as follows:
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
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.
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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 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
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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.
Submissions
[4] The Union maintains that the Employer is not entitled to determine eligibility for the
TEI based solely on local considerations. In its submission, the initiative is intended
to effect transformation of the OPS, broadly defined, and is not restricted to
individual local offices, divisions, regions or ministries. Moreover, the parties have
agreed that seniority will determine which employee will exit the OPS where more
than one employee is eligible for TEI. There are numerous instances in the
collective agreement where the parties limited the application of seniority, by
classification or ministry. No such limits are found in Appendix 46 and therefore it
should operate bargaining unit wide, as it does in the normal course under the
collective agreement.
[5] In the Union’s submission, paragraph 1 of Appendix 46 determines eligibility to
apply for the TEI and paragraph 2 governs approval, but paragraph 3 requires that
seniority be the deciding factor. It was submitted that seniority is thus a fetter on
the Employer when it grants or denies approval. Therefore, when the Employer is
considering a request for TEI, they must consider who the senior applicants are in
the pool of those otherwise eligible.
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[6] The Union acknowledged that a comprehensive process, properly resourced,
would be required to administer the initiative so that OPS wide applications for TEI
can be considered on a rolling basis. However, it suggested this is frequently the
case in the administration of the collective agreement and is not determinative of
the proper interpretation of Appendix 46. Finally, the Union submitted that if only
local considerations are relevant in determining individual approval for TEI, the
opportunity to apply the seniority provision contained in paragraph 3 would be
vastly diminished.
[7] In the particular cases at hand, there were employees performing the same job, in
the same region, who were junior to the grievors and who were granted the TEI.
There was also at least one employee, in another ministry, doing substantially
similar work that was approved to exit with a TEI. In the Union’s submission, the
grievors were entitled to have their requests considered in light of the overall needs
in the OPS and, based on their greater seniority, they should have been approved
for TEI.
[8] The Union cited the following cases in support of their arguments: Re Western
Grocers, Division of Westfair Foods Ltd. and Retail, Wholesale and Department
Store Union, Loc. 469, (1989) 6 LAC (4th) 1 (Freedman); Lakeport Beverages v.
Teamsters Local Union 938, (2005) 143 LAC (4th) 149 (OCA).
[9] The Employer submitted that the sole issue before me is whether it properly
exercised the broad discretion afforded under Appendix 46 when it approved the
grievors’ TEI requests. The Employer maintained that it considered the grievor’s
applications individually, in good faith and concluded that the grievors’ departure
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did not support the transformation of the OPS because their positions could not be
eliminated. All relevant factors were taken into account and no irrelevant ones
considered. In its submission, there is no evidence that either decision was
arbitrary, discriminatory, unreasonable or made in bad faith. Therefore, the
grievances must fail.
[10] With respect to seniority, it was the Employer’s position that this is a peripheral
consideration that is not relevant when it determines whether or not an individual
request for TEI should be approved. In accordance with paragraph 2 of Appendix
46, the only factors that are relevant are whether the Employer has plans to reduce
positions in the bargaining unit and whether the employee’s exit supports
transformation of the OPS. The Employer maintains that is has been afforded
broad discretion in arriving at its conclusion and was entitled to consider whether
the positions occupied by the grievors would remain or could be eliminated. It was
further argued that paragraph 3 of Appendix 46 is only invoked after the Employer
makes a decision under paragraph 2; thereafter the relative seniority of eligible
employees is considered.
[11] The Employer relied on the following cases: OPSEU (Ford) v Ministry of
Transportation, (1990) GSB #571/89 (Barrett); OPSEU (Mailloux) v. Ministry of
Correctional Services, (1989) GSB #0087/88 (Picher); Teamsters, Local 647 v.
Natrel Inc., (2004) 129 LAC 94th) 419, (Member).
[12] The Union replied that although the language found in Appendix 46 is not as
precise as one might like, on the Employer’s interpretation, they can essentially
define away the entitlement conferred in paragraph 3 by considering the application
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within a very narrow scope of operation. If the Employer is permitted to consider
every application in isolation without considering seniority, they could convert the
process into one that is so specific to the individual employee that the opportunity
to apply the provisions of paragraph 3 never arises, thereby seriously undermining
the seniority rights it confers.
Decision
[13] The facts in this matter are straightforward and not in dispute. Both grievors were
very long service employees who applied for the TEI in order to bridge the period
remaining before their retirement. Although the Employer intended overall
reductions in the bargaining unit, it determined their eligibility for the TEI based
solely on local operational needs. The office in which the grievors worked was
under complement and the Employer would have to backfill their positions after
they departed. The Employer therefore concluded that the grievors’ exits would not
result in any cost savings and denied their requests for the TEI.
[14] The Union maintains that the Employer is required to approve requests on the
basis of OPS wide seniority: paragraph 3 of Appendix 46, properly construed,
fetters the Employer’s discretion and requires that requests be considered broadly,
taking into account other offices, regions and ministries and the relative seniority of
employees applying for TEI.
[15] I accept the general proposition that seniority will generally apply on a bargaining
unit wide basis, and, to the extent that the scope and application of paragraph 3 of
Appendix 46 is at issue, I agree that the seniority rights it affords do operate on that
basis. I also agree with the Union that seniority is a cornerstone of modern
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collective bargaining and that great care must be taken to ensure that seniority
rights are not eroded by the exercise of management’s discretion. Decisions must
be made in good faith and any apparent attempt to evade the application of
seniority provisions must be carefully examined. Similarly, a provision that grants
rights on the basis of seniority must be interpreted so that it has a meaningful
impact in practice.
[16] However, the issue before me is not how paragraph 3 operates where the seniority
rights of two employees have been clearly engaged, but rather what impact, if any,
those rights have on the Employer’s decision to approve their requests in the first
instance. It is the interplay of these two paragraphs that is at issue. In that regard,
the scope of the seniority rights afforded under paragraph 3 is only relevant if the
Union is correct that paragraph 3 imposes obligations on the Employer when
exercising its discretion under paragraph 2.
[17] I have considered the Union arguments and concluded that they are not supported
by the structure or specific language used in Appendix 46, by the purpose and
objectives of Appendix 46 or the administrative machinery required to implement
the interpretation advanced by the Union. The Union has effectively argued that
once the Employer decides that it needs to reduce positions in the OPS as a
whole, its discretion to approve individual requests is fettered and must be decide
on the basis of seniority. In my view, that is an over reading of paragraph 3 and
converts the limited seniority rights conferred in Appendix 46 into the paramount
consideration in granting the TEI. That is a restriction and fettering of the
Employer’s discretion that is far more onerous than the language supports.
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[18] Appendix 46 sets out a comprehensive process for the operation of the TEI. It
defines who is eligible to apply (paragraph 1); the approval process (paragraph 2);
the role of seniority where more than one employee is eligible to exit (paragraph 3);
entitlements (paragraph 5 and 8); timing of the employee exit and payments
(paragraph 6 and 7); and the nature of the program which is part of a downsizing
initiative designed to prevent the layoff of other employees (paragraph 10 and 11).
[19] Paragraph 2, in dealing with the approval process, is similarly detailed. It includes
particulars of how the request is to be made (in writing); to whom it is submitted
(the Corporate Employer); what considerations the Employer must take into
account; how, to whom and when the Employer must give notice of their approval;
and provides that the employee can withdraw their request once notified of the
Employer’s approval.
[20] The language used in Appendix 46 does not explicitly connect the seniority
entitlements in paragraph 3 to the approval process set out in the preceding
paragraph. The Union suggested that the reference to employees “eligible to exit”
in paragraph 3 refers to the employee’s status, pre-approval, and that it is implied
that the two sections will operate together. I do not agree. In my view Appendix 46
sets out a sequential process and it is only after an employee request has been
approved and the employee does not decide to withdraw their request, that
paragraph 3 comes into play. When paragraph 3 refers to an “employee eligible to
exit under the TEI”, it is referring to both of those conditions having been met: that
the Employer has approved the exit under TEI and the employee wishes to pursue
it.
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[21] These are sophisticated parties who could have easily made it clear that they
intended these paragraphs to work together. They have not. Instead, they have
included the approval process as a distinct and separate provision that fully sets
out the manner in which requests for TEI will be approved. The structure of
Appendix 46 as a whole and the comprehensive nature of the approval process set
out in paragraph 2 do not lend themselves to the interpretation advanced by the
Union.
[22] Furthermore, the language used in paragraph 2 clearly affords the Employer broad
discretion to approve or deny an employee’s request for TEI. It provides that the
Employer may approve a request for TEI in its discretion, if the Employer has plans
to reduce positions in the OPSEU bargaining unit and it has determined in its
discretion that the employee’s exit supports the transformation of the OPS.
[23] Broad discretion in the approval of TEI requests also makes sense in light of the
objective and purpose of Appendix 46. The stated objective is to encourage
employees to voluntary leave the OPS and avoid involuntary layoffs if the number
of positions in the OPS must be reduced. Given that objective, management must
be permitted to consider whether offering a costly incentive in a particular case
actually assists them in meeting that objective. On the Union’s interpretation, the
TEI would operate more as a general retirement benefit than a targeted
inducement to minimise the impact of workforce reductions.
[24] The facts at hand are a perfect illustration of this point. The Employer denied the
grievors’ TEI requests because their exit would not reduce the permanent
complement of employees. The Whitby office, where the grievors were both
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employed at the time of their request, was already under complement and other
staff would have to be hired to replace them upon their departure. There was no
suggestion that this was an attempt by the Employer to avoid the seniority rights
conferred under paragraph 3 or was a pretext for some other reason to withhold
approval. Indeed, after Ms. Koeslag retired, her position was back filled and she
returned to the office as a fixed term employee working casual hours. While other
employees in other offices were granted the TEI, it is difficult to see how the
Union’s interpretation would result in either meaningful cost savings or prevent
layoffs. The Employer could not require full time staff to move to the Whitby office
to replace the grievors and staffing needs would still be out of balance: they would
be under complement in Whitby and over complement in other offices.
[25] Finally, the administrative complexity inherent in the Union’s interpretation further
reinforces my conclusion that it is not what the parties intended. As acknowledged
by the Union, it would take an extraordinarily complex and expensive administrative
design to implement the initiative as conceived of by the Union. All requests would
have to be processed centrally, with a rolling list of all employees who have
requested but not yet been approved for TEI maintained and considered before
any individual request could be determined. Seniority would then operate to
determine which employee is granted a TEI, irrespective of operational needs
consequent to their particular departure. Although not determinative, I consider the
process put forward by the Union as being so unwieldy and expensive that is
unlikely that the parties would have agreed to it. I am certainly reluctant to impose
that system in the absence of clear language supporting that interpretation.
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[26] Both parties agreed that the guidelines for the proper exercise of discretion
enunciated in Kuyntjes, GSB #513/84, governed the Employer’s decisions under
Appendix 46. The Union did not advance arguments that the Employer in this case
exercised its discretion in bad faith, or in a manner that was discriminatory,
arbitrary or unreasonable. I accept the submission of the Employer that it
considered the individual merits of the grievors’ applications for TEI and did not
adhere to a rigid policy in refusing their applications.
[27] While the Union did not directly attack the employer’s exercise of discretion in this
case, it did suggest that there could be cost savings to the Employer even if they
were required to back fill the grievors’ positions. Be that is it may, I have
determined that the Employer has a broad discretion to determine whether in their
opinion the exit of an employee who has applied for TEI supports the
transformation of the OPS. Although they could have found that the grievors’ exit
supported their vision of transformation, they took a different view. Absent evidence
that they improperly exercised their discretion, they were free to make the decision
that they did. They were not required to consider seniority at that point, nor were
they obliged to consider the request in light of the staffing needs at other offices or
in other regions or ministries. The grievances filed by Ms. Koeslag and Brideau
with respect to the non-approval of their TEI requests are therefore dismissed.
Dated at Toronto, Ontario this 12th day of January 2016.
“Reva Devins”
Reva Devins, Vice Chair