HomeMy WebLinkAboutUnion 19-11-01IN THE MATTER OF AN ARBITRATION
BETWEEN
PUBLIC HEALTH ONTARIO (the Employer)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union)
Grievance Regarding Lead Logistics Operations: OPSEU # 2017-0545-005 and 2016-0545-0013
Hearings held in Toronto on March 2, July 13, November 13, November 15, November 27, 2018
March 4, April 1, June 18, and July 17, 2019
Arbitrator: Barry B. Fisher
For the Union: Jesse Gutman
For the Employer: Paul Meier
AWARD
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This case involves the determination of two issues:
A) Whether the newly created position of Lead Logistics Operations should be in the
OPSEU bargaining unit.
B) If the answer to the above question is “no” then are there any restrictions on the duties
that can be carried out by the Lead Logistics Operations at Resources Road.
Background:
This case was supposed to proceed primarily on the basis of an extensive Agreed Statement of
Facts (ASOF) which is attached to this award. However, both parties spent considerable time
and effort leading oral and written evidence about matters that were already referred to and
agreed to in the ASOF. In writing this award I have therefore relied in most part on the ASOF as
I found that the oral evidence largely supported what the parties had already agreed to.
I will therefore not set out in detail in this award the underlying facts except where it is necessary
to comment on the oral evidence that was also presented.
Where I reference the ASOF, I will simply set out the paragraph number from the ASOF and do
not repeat its contents.
A) Whether the newly created position of Lead Logistics Operations should be in the
OPSEU bargaining unit.
The relevant Article in the Collective Agreement regarding the makeup of the bargaining unit
contains the usual exclusion of “persons who exercise management functions “and “persons
“employed in a confidential capacity in matters relating to labour relations”.
However, the bargaining unit does include the position of Supervisor Mail and Warehouse (
“Supervisor”)
In essence the Employer eliminated two Supervisor positions and replaced them with two Lead
Logistics Operations (“ Lead”) who they claim are outside the bargaining unit.
The ASOF sets out in great detail exactly where the parties agree the duties are similar and when
they are different. They also set out where they cannot agree and, on these issues, I heard very
extensive oral evidence.
Here is my summary of those various categories:
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SIMILAR DUTIES
#42: Supervision of daily duties, work processes, daily work routines, input into preparation of
budget, consult with clients, maintain service contracts, removal, participates in policies.
#44 and 45: Skills and Knowledge
#49: Communication/ Interpersonal Skills & Quality of Client/ Customer Service
#50 and 51: Judgement/Problem Solving / Decision Making
#65: Direction and Control of Day to Day Activities
DIFFERENT DUTIES
#36: Positions supervised
# 37 to # 39: Managing and directing staff
#40 to #41: Ensure compliance
#46 to 48: Leadership and Coaching
#53 and 54: Designated Authority Human Resources Authority
#55 to 64: Hiring
#66 to 70: Performance Reviews and Employee Training
#78 to 83: Authorizing Overtime, Vacation and Leaves
#84 to 89: Health and Safety and other Reporting Responsibilities
#90 to 92: Discipline
#93 Grievances
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DISAGREEMENT
#43: KPI and operational data.
# 71 to 77: Assigning Staff and Directing the Work:
On some of the Different Duties, there is a clear line between what the Supervisor could do as
opposed to the Lead did or was authorized to do. In other situations, the differences were more
subtle, meaning that the Supervisor could “recommend” or “participate “ while the Lead had the
authority to do the task or give the approval themselves without the intervention or consent of
their manager.
I also heard extensive oral evidence from both parties as to the detail of the transactions and
duties as already outlined in the SOF. Most of this evidence was focused on the few issues where
the parties disagreed on the exact nature of the duties of the respective Supervisor and Lead.
Obviously, there is a great overlap between the two sets of duties, especially in the area of day to
day supervision of the work. I have concluded that if one were to simply add up the number of
hours that the Supervisor spent doing the same or similar tasks of the Lead that this overlap
would constitute the majority of their respective shifts.
However, it is not just the quantity of time that one spends on a particular job task but also the
character of the task that matters in determining whether or not the duties are managerial vs
supervisory.
For instance, one may spend less than 1% of their time disciplining employees, however the
inclusion of that duty is very relevant to determining whether someone is a bargaining unit
supervisor or an excluded manager.
If one simply looks at the SOFs where the parties agree that there was a difference, one can
instantly see that virtually all the differences focus on those duties traditionally viewed as being
managerial, i.e. managing subordinates, designated authority regarding human resource issues,
hiring, performance reviews, discipline and authorizing overtime, vacation and leaves.
This is especially clear when one looks at Tab 16 of Exhibit 1 entitled “Delegation of Authority
Human Resources” which sets out in detail “to define the limits of authority to specified
positions of responsibility within PHO to conduct specific human resource functions for union
and non-union positions”.
The Lead is found within Level 6, the lowest level of authority. According to this document, the
Leads can do the following things, none of which could be done by the Supervisors:
Recruit staff position within budget.
Determine area of search for recruitment
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Make standard employment offers for both union and non-union positions
Administer Oath of Office
Deal with working condition grievances at stages 1 and 2
Deal with classification grievances at stage 1.
Set performance standards and conduct performance appraisals
Authorize and approve attendance
Determine and approve hours of work
Authorize and approve time credits while travelling
Authorize and approve overtime and time in lieu
Authorize and approve call back
Authorize and approve On Call Duty
Authorize and approve Stand-by time
Authorize and approve day in lieu for working on a holiday or working overtime
Ensure First Aid measures for unit
Accident and Injury investigation
Authorize bereavement leave up to 3 days, Personal Emergency leave , Family Medical
Leave, Religious Observance , Pregnancy Leave, Parental Leave and other leaves
Salary on Appointment
Approve training courses and time off to attend up to 3 days
Time off for PHO job interviews
The few issues that the parties do not agree upon generally dealt with operational issues that
would not materially affect this analysis. For instance, whether or not the Supervisor drafted
Standard Operating Procedures would make little difference in deciding whether these duties
took this job outside the bargaining unit.
Moreover, the duties that the parties agree are similar are largely related to the day to day
operations of the workflow, which are traditional supervisory or lead hand types of duties.
I am satisfied that the duties performed by the Lead set out under DIFFERENT DUTIES are core
duties of such a significant nature that they both constitute “persons who exercise management
functions “ and, to a lesser degree, “persons employed in a confidential capacity in matters
relating to labour relations”.
They are not, as alleged by the Union, mere “paper duties” or “a sprinkling of management
duties “. These new duties of the Leads flowed largely from a delegation downwards from duties
previously performed by the Manager, Logistics Operation. It was done for the express purpose
of insuring an on the ground managerial presence in a workplace which the Employer reasonably
decided was necessary now that there were two separate physical locations and only one
Manager.
I therefore conclude that the Position of Lead Logistics Operations is not in the OPSEU
bargaining unit as it falls within the managerial exemption.
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B) Are there any restrictions on what duties the Lead Logistics Operations located at 81
Resource Road can do?
As a direct result of the creation of the Lead position, there was a layoff of the Supervisor at the
Resource Road location. That individual filed a grievance, which was then settled, and a
Memorandum of Agreement was signed. That individual did not return to the employ of the
Employer.
Article 12.1.1 of the Collective Agreement reads as follows:
Work of the Bargaining Unit
Employees excluded from the bargaining unit shall not preform duties normally performed by
employees in the bargaining unit which directly results in a layoff to an employee in the
bargaining unit.
Insofar as the Supervisor was laid off as a direct result of the Employer’s decision to create the
Lead position, and given that many of the duties currently being performed by the Lead used to
be performed by the Supervisor, is the Lead now prohibited from performing those bargaining
unit duties?
The reason that this issue only applies to the one position is because the change in the other
location was done without any layoff.
It is clear that:
a) A significant amount of the work currently performed by the Lead at Resources
Road is the same as the work previously done by the Supervisor.
b) The only reason the previous Supervisor was laid off was because of the decision of
the Employer to bring in the new position of Lead.
The Union position is given these two facts, it flows from Art 12,1,1 that as the Lead is not in the
bargaining unit, he cannot perform those overlap duties. The Union’s position is that this clause
is not simply designed to protect the job of the incumbent but that the Union has an ongoing
collective Bbrgaining interest in maintaining the integrity of bargaining unit work, even where
the individually affected Grievor has resolved his layoff dispute and is no longer an employee.
The argument of the Employer is that this Article only gives protected rights to the individual
employee who is laid off and since he has resolved his individual grievance, which the Union
agreed to, there are no further rights flowing from this Article.
The parties cited a number of cases, however, I find the case decided by Arbitrator Petryshen in
OPSEU v, MGS, GSB #201-011 to be the most relevant to our fact situation.
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In that case the relevant Article read as follows:
“5. Non- public servants, while in the workplace, shall not perform duties normally performed
by employee in the bargaining unit if it directly results in the layoff of a bargaining unit
employee.”
This GSB case involved the situation where two bargaining unit persons were laid off while the
Employer retained the use of outside consultants to do similar work. The Union was asserting
that the employer should have been required to give that consultants’ work to the bargaining unit
employees and the failure to do so resulted in a layoff.
The arbitrator decided that the continued use of the outside consultants did not directly result in
the layoff of the bargaining unit employees as the work they did was either discontinued or
absorbed by other bargaining unit employees.
However, the arbitrator also went on to comment on what the remedy would have been if he had
found in favour of the Union.
Paragraph 22.
Even if there had been a violation of paragraph 5, I find that that section 20 of the Collective
Agreement would not have any application in providing a remedy for the violation. If the
Employer had contravened paragraph 5, the appropriate remedy would consist of a declaration
that the Employer had contravened paragraph 5, with a direction to the Employer to return the
SO to active employment and to compensate the SO for any losses. This is precisely the response
of the arbitrators who found a similar contravention of a similar provision in the decisions relied
upon by the Union. This remedial approach would be a sufficient response to a specific violation
of paragraph 5.
The Employer cites this paragraph of authority for their proposition that the only remedy is
personal to the Grievor and that it cannot have an effect on the future work that the Lead can or
cannot do.
In all of the cases cited by both parties it is clear that the normal remedy is to order the displaced
employee to be reinstated and provided with back pay. It is clear that if that were to happen and
the next day the newly reinstated employee were to quit, the Employer would be free to have
non-bargaining unit employees perform the tasks previously performed by the bargaining unit
employee.
In this case, the Supervisor settled his layoff grievance by giving up his claim to reinstatement,
and instead accepted a monetary payment, This is akin to a situation where the employee is
reinstated, gets his back pay, and then quits.
As such I find that since the Supervisor in this case came to a financial settlement of his layoff
grievance in exchange for a payment of money, it is the same situation as if he had voluntarily
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resigned. It is clear that in that situation it would be perfectly legal for the Employer to assign
some of his duties to a non- bargaining unit employee. it is therefore follows that the Resource
Road Lead is permitted to perform those duties previously performed by the Supervisor, just as is
the situation at the Employers’ other location.
However, this does not mean that there is no remedy available because from the time that the
Resource Lead was laid off until the time that he signed the Minutes of Settlement, the Employer
was in breach of Article 12.1.1 of the Collective Agreement in that the Lead was performing
bargaining unit work.
The Union is therefore entitled to a declaration that the Employer breached Article 12.1.1
between the dates referred to above.
The grievance is therefore allowed.
Dated at Toronto this day of November 2019
Barry B. Fisher, Arbitrator
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AGREED STATEMENT OF FACTS
(ASOF)
10
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
AGREED STATEMENT OF FACT A. BACKGROUND
Introduction
1. Public Health Ontario (“PHO”) is a Crown corporation dedicated to protecting and
promoting the health of all Ontarians. PHO links public health practitioners, front-
line health workers and researchers to the scientific intelligence and knowledge
from around the world. PHO’s main clients are local public health units,
government and health care providers and institutions.
2. PHO provides expert scientific and technical advice and support relating to:
1. InfectiousDiseases
2. InfectionPreventionandControl
3. Surveillance and Epidemiology
4. Health Promotion, Chronic Disease and Injury Prevention
5. Environmental and Occupational Health
6. Emergency Preparedness and Incident Response
3. In carrying out its mandate, PHO operates its central public health laboratory, the
Toronto Laboratory, at 661 University Avenue, occupying four floors of the MaRs
West Office Tower. PHO employs approximately 400 employees in its Toronto
Laboratory.
4. PHO also operates 10 regional public health laboratories across the province.
5. The Ontario Public Service Employees Union (“OPSEU” or the “Union”)
represents over 155,000 employees in the public and para -public sectors across
Ontario. Its Local 545 holds the certificate for bargaining rights for employees at
PHO.
1
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
FORMER PHO ORGANIZATIONAL STRUCTURE 81 Resources Road – Pre-
November 2014
6. Before November 2014, PHO’s Toronto Laboratory department was located at 81
Resources Road. At that time, the department included the corporate services
that supported the Laboratory (e.g., finance, procurement, etc.).
7. PHO’s Mail Room Operations and its main Warehouse and Distribution Centre
(“Warehouse Operations”) were also both located at 81 Resources Road. Staff in
PHO’s Mail Room Operations and in its Warehouse Operations were members of
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what used to be PHO’s “Public Health Laboratories / Procurement and Supply
Chain” department.
8. PHO deployed five Stockroom Clerks in its Warehouse Operations and three
Mail Room Clerks in its Mail Room Operations at 81 Resources Road. All of
these Clerks were OPSEU-represented employees.
9. The Stockroom Clerks and Mail Room Clerks reported to the “Manager,
Procurement and Supply Chain”.
10. The Manager worked onsite at 81 Resources Road. Her office was located on
the building’s main level, directly above the Warehouse Operations floor. Under
the heading “Key Responsibilities”, the Manager’s job description stated:1
Manages assigned Warehouse staff, congruent with the PHO's internal policies
and procedures, professional standards, Collective Agreement requirements and
other relevant standards, legislation or regulations, including: providing direction
and leadership in the implementation of new techniques and standards;
managing the assignment of staff and work/vacation scheduling; setting clear
responsibilities and objectives and evaluating performance; ensuring training is
provided, participating in recruitment/selection of staff; dealing with disciplinary
issues and responding to grievances in conjunction with the PHO's Human
Resources management programs;
1 See Tab 1: Manager, Procurement and Supply Chain job description dated May 16, 2014.
2
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
11. PHO also deployed a “Supervisor, Mail and Warehouse” in respect of the 81
Resources Road Mail Room and the Warehouse Operations (hereinafter “the
former bargaining unit Supervisor”).
12. This employee was a member of the Union’s bargaining unit and reported to the
Manager.
PHO REORGANIZATION AND RELOCATIONS Overview
13. Starting in November 2014, PHO began a major reorganization of its logistics
operations. Under the new model, PHO split its operations into two separate
Logistics Operations, each with its own core functions:
1. 661 University Avenue Logistics Operations (supporting PHO’s Toronto
Laboratory and operating PHO’s centralized Mail Room); and
2. 81 Resources Road Logistics Operations (PHO’s Laboratory Operational
Support Facility).
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661 University Avenue Logistics Operations
Toronto Laboratory Operations
14. Between November 2014 and up until March 2015, PHO moved its Toronto
Laboratory (and related finance and procurement services) from 81 Resources
Road to 661 University Avenue. As stated above, PHO’s new state-of-art Toronto
Laboratory occupies four floors of 661 University Avenue’s West Office Tower.
3
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
15. In undertaking this reorganization and relocation, PHO migrated logistics
functions from 81 Resources Road to 661 University Avenue while
simultaneously expanding its 661 University Avenue Logistics Operations to
perform new functions that had not been performed previously at 81 Resources
Road. For example, PHO transf erred lab-coats management and hazardous
materials management activities, including two “Lab Attendants 1” FTEs,2 from
81 Resources Road to 661 University Avenue under the new Logistics
Operations model. This transfer was made effective April 1, 2015.
16. The PHO also expanded its logistics functions at 661 University Avenue under
the new model to include, inter alia, biomedical and sharp waste management,
compressed gases management, and secured shredding management.
17. To meet the needs of its 661 University Avenue Logistics Operations, PHO
established four “Logistics Clerk” positions at 661 University Avenue, updating
and revising the former “Stockroom Clerk” job description.3 As PHO announced
to its employees in July 2016:
Over the past few months, we have been reviewing work processes in Logistics
Operations following the move of Toronto laboratory operations to 661 University
Avenue while continuing to work across the two sites. We have had an
opportunity to review the roles in the Warehouse and Mail Room a nd have
worked to realign some of the processes and tasks to better meet the needs of
the department and assist with coverage for particular activities.
As a result we have created a revised role titled ‘Logistics Clerk’. This role will
continue with the same work as your current role as well as some additional
duties such as the collection of bio-medical waste. This change will ensure that
other staff are fully trained and able to provide coverage as required. These
upcoming changes are designed to help us better integrate and deliver our
services to support the Laboratories.4
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18. PHO placed these positions in its new “Logistics and Supply Chain” Business
Unit. PHO states that the new Logistics Clerk job descriptions removed the
“compartmentalized approach” that had previously existed under the old 81
Resources Road model. Rather, in
2 “Full-Time Equivalents”.
3 See Tab 3: Logistics Clerk and Mail Room Clerk job descriptions, as revised June 30, 2017.
4 See Tab 4: Letters to former Stockroom Clerks dated July 14, 2016, copying Shah Nawaz, OPSEU Local
545 President.
4
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
accordance with their new job descriptions, all Logistics Clerks rotate through “streams”
every six months so that all of PHO’s Logistics Clerks can perform all of the various
tasks and functions.5
Mail Room Operations
19. In addition to relocating the Toronto Laboratory, PHO also relocated all of its Mail
Room Operations from 81 Resources Road. While it initially co nsidered co-
locating its Mail Room with operations run by the Ministry of Health (“MOH”) at a
MOH facility, PHO ultimately decided to move its Mail Room to 661 University
Avenue effective June 30, 2016.
20. PHO deploys two Mail Room Clerk positions at 661 University Avenue under the
new model.
81 Resources Road Logistics Operations
21. In undertaking its reorganization, PHO designated 81 Resources Road as its
“Laboratory Operational Support Facility”, establishing the facility as a stand-
alone distribution centre. Under the new model, the 81 Resources Road Logistics
Operations now deploys three Logistics Clerks.
22. As part of ongoing operational plans, PHO is exploring opportunities to expand
its 81 Resources Road Logistics Operations as it further centralizes certain
warehouse and distribution functions on behalf of its 10 regional laboratories.
5 See Tab 5: for the work streams at 661 University Avenue and for 81 Resources Road (revision date: Feb
12, 2018).
14
5
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
NEW PHO MANAGEMENT STRUCTURE
23. By letter dated July 26, 2016, PHO advised the Union that “due to realignment of
managerial functions of the Warehouse and Mailroom, we are elim inating the
position of Supervisor”.6
24. As a result, PHO advised the Union that PHO “will be creating and posting two
new management Team Leader positions to manage work-site issues including
management of Human Resources and performance”.7 Accordingly, PHO
introduced the Lead, Logistics Operations position to have a front -line
management presence at both PHO locations (661 University Avenue and 81
Resources Road).
25. On October 4, 2016, PHO posted two “Lead, Logistics Operations” management
positions: one Lead, Logistics Operations position for the 661 University Avenue
location and another Lead, Logistics Operations for the 81 Resources Road
location.8
26. As set out in PHO’s Delegation of Authority (Human Resources), the “Team
Lead” is a designated managerial title amongst the organization’s six levels of
management (i.e., Leads are at Level 6, along with PHO Managers).
27. On or about December 14, 2016, PHO offered Ms. Manuela Sudjito the Lead,
Logistics Operations position for 661 University Avenue9 as the successful
candidate in the above- noted job competition.
28. In her role, Ms. Sudjito has seven direct reports; four Logistics Clerks, two Mail
Room Clerks and one Lab Attendant 1. All of Ms. Sudjito’s reports are OPSEU -
represented employees.
6 See Tab 10: Letter from Catherine Green, Senior Advisor, Labour Relations to Shah Nawaz, President of
OPSEU Local 545 dated July 26, 2016.
7 See letter at Tab 10.
8 See Tab 11: Job posting, Lead, Logistics Operations (2 positions), posted October 4, 2016.
9 See Tab 14: Employment Agreement dated December 14, 2016.
6
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
15
29. On or about December 15, 2016, PHO offered Mr. Jack Vicente the Lead,
Logistics Operations position for 81 Resources Road10 as the successful
candidate in the above- noted job competition.
30. In his role, Mr. Vicente has three Logistics Clerks who report directly to him and
who are all OPSEU-represented employees.
31. Both Lead, Logistics Operations positions report to the Manager, Logistics
Operations.11 The Manager, Logistics Operations, is Ms. Katarina Goenadi. Ms.
Goenadi has held this position since January 5, 2015.
32. Ms. Goenadi is a subject-matter expert in supply chain management and is
assigned special Process Improvement Projects by Senior PHO management
regarding same (e.g., opportunities to centralize PHO’s logistics functions). In
addition to the two Lead, Logistics Operations reports (Ms. Sudjito and Mr.
Vicente), PHO’s Supply Chain Coordinator position12 also reports to Ms.
Goenadi.
33. Ms. Goenadi is located at 661 University Avenue. Given Ms. Goenadi’s
responsibilities and job duties, Ms. Goenadi visits the 81 Resources Road
location approximately four times per month.
34. Both Ms. Sudjito and Mr. Vicente are viewed as members of management by
PHO’s senior management team, are privy to management -only information and
attend management training courses.
35. The management role of Ms. Sudjito and of Mr. Vicente at their respective work
locations is also repeatedly communicated to the PHO workforce. For example,
as stated in PHO’s “In the Know @ PHO” newsletter (Winter 2018):
10 See Tab 15: Employment Agreement dated December 15, 2016.
11 See Tab 13: Logistics, Operations Manager dated November 25, 2015 (to be updated). 12 The position is
currently vacant.
7
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
The team operates from 661 University Avenue, under the leadership of Manuela
Sudjito, and from 81 Resources Road, under the leadership of Jack Vicente. While each
site operates slightly differently, staff has the opportunity to rotate to work at the other
location to gain a deeper understanding of the logistics processes at PHO.13
B. JOB DESCRIPTION COMPARISON
Lead, Logistics Operations v. Supervisor, Mail & Warehouse
Positions Supervised
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36. The Lead, Logistics Operations job description -- under the heading “Positions
Supervised” -- lists “Logistics Clerk” and “Mail Room Clerk” as positions
supervised.14 No positions were listed as “positions supervised” in the former
bargaining unit Supervisor’s job description.15
Key Responsibilities
37. Under the heading “Key Responsibilities”, the Lead, Logistics Operations job
description states:
Manages and directs staff , congruent with PHO’s internal policies and
procedures, professional standards, Collective Agreement requirements and
other relevant standards, legislation or regulations, including: providing direction
and leadership in the implementation of new techniques and standards;
assigning staff and implementing work/vacation schedules; setting clear
responsibilities and objectives and evaluating performance; advising on training
needs, participating in recruitment/selection of staff; dealing with disciplinary
issues and responding to grievances in conjunction with PHO’s Human
Resources management programs;
13 See Tab 7.
14 See Tab 12: Lead, Logistics Operations Job Description, “new” as of September 13, 2016. 15 See Tab 2:
Supervisor, Mail and Warehouse job description dated June 19, 2014.
8
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
38. The parties agree that the “manages and directs staff” responsibility was not
contained in the former bargaining unit Supervisor’s job description.
39. The parties agree that the “manages and directs staff” responsibility of the Lead,
Logistics Operations position uses very similar language to the language
contained in the job description of the former Manager at 81 Resources Road. As
set out above, under the heading “Key Responsibilities”, the former Manager job
description stated:16
Manages assigned Warehouse staff, congruent with the PHO's internal policies
and procedures, professional standards, Collective Agreement requirements and
other relevant standards, legislation or regulations, including: providing direction
and leadership in the implementation of new techniques and standards;
managing the assignment of staff and work/vacation scheduling; setting clear
responsibilities and objectives and evaluating performance; ensuring training is
provided, participating in recruitment/selection of staff; dealing with disciplinary
17
issues and responding to grievances in conjunction with the PHO's Human
Resources management programs;
40. The Lead, Logistics Operations job description states also under the heading
“Key Responsibilities:
Ensures compliance with relevant PHO policies, standards, and guidelines and
legislative requirements;
41. The parties agree that the above-noted “ensure compliance” responsibility
language was not contained in the former bargaining unit Supervisor’s job
description.
42. The parties agree that most of the remaining key responsibilities described in the
Lead, Logistics Operations job description are similar to the responsibilities
described in the former bargaining unit Supervisor job description:
Supervises/Leads Warehouse: “Supervises/Leads the work processes and workflow
priorities of the Logistics/Warehouse and Distribution Centre...” versus “Supervises the
day to day operations of the PHOL Warehouse and Distribution center...”;
16 See Tab 1: Manager, Procurement and Supply Chain job description dated May 16, 2014.
9
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
Supervises/Leads Mail operations: “Supervises/Leads the work processes
and workflow priorities for the provision of mail” versus “Supervises day to day
the provision mail...”;
“Coordinates the daily work routines for Logistics Operations staff...”
“Provides guidance and direction to external contracted Courier staff”;
“Provides input to preparation of the warehouse budget”;
“Consults with staff and client groups to establish and implement the
appropriate procedures and services to respond to client needs”;
“Ensures that all service related equipment is properly used, maintained and
repaired”;
“Facilitates removal/disposal of records, chemical waste and assets as
required as per approved procedures”; and
“Participates in development and implementation of internal policies and
procedures and makes recommendation on meeting client needs”.
18
43. The parties disagree about the following changes, added to two key responsibilities
in the Lead, Logistics Operations job description:
“Develops and supervises various KPI and performance measures for
Logistics Operations...” versus “Analyzes and produces a variety of inventory
reports for product use rates, forecasting of future demand levels, reorder levels
etc...”; and
“Develops and maintains effective and useful operational data, (e.g. staffing,
equipment, supplies for analysis and decision making process by management
staff)” versus “Maintains operational data...”
10
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
Skills and Knowledge
44. The parties agree that the “Skills and Knowledge” required for the Lead, Logistics
Operation position and the former bargaining unit Supervisor position are similar.
45. As described in some greater detail below, the parties have a dispute regarding
following addition to the Lead, Logistics Operations job description:
... to revise/create SOP [“Standard Operating Procedures”] and generate
standard reports, Q-Pulse to support and assist with revision/generation of SOP
and Quality Assurance forms as required;
Leadership and Coaching
46. Under the heading “Leadership and Coaching”, the Lead, Logistics Operations
job description states:
Manages and directs the unit staff . Provides coaching, guidance and feedback,
to develop the skills and performance of team members within the Logistics
Operations team.
47. The parties agree that the “manages and directs staff” leadership requirement
contained in the Lead, Logistics Operations position is very similar to the former
81 Resources Road Manager’s requirement.17
17 See Tab 1, p. 3, “Leadership and Coaching”
11
19
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
48. The parties agree that the “manages and directs staff” leadership requirement
was not contained in the former bargaining unit Supervisor’s job description.
Under the heading “Leadership and Coaching”, the former bargaining unit
Supervisor job description stated:
Provides day to day leadership to the warehouse team including Mail Clerks and
Shipper, Receiver and Stockroom Clerk including assigning / reassigning
priorities and assignments to meet client needs;
Ensures all labour relations matters are escalated to the Manager for resolution.
Communication/Interpersonal Skills & Quality of Client/Customer Service
49. The parties agree that the “Communication/Interpersonal Skills & Quality of
Client/Customer Service” required for the Lead, Logistics Operation position and
the former bargaining unit Supervisor position are similar.
Judgement/Problem Solving/Decision Making
50. The Lead, Logistics Operations job description contains three items that were
absent from the former bargaining unit Supervisor’s job description:
o Ensures prompt addressing of client concerns / complaints and the
implementation of the necessary corrective procedures to ensure that no
repeat incidences occur (improper filling of orders, incorrect shipping
destinations, and reports mailed to incorrect addresses etc.).
o Responsible for maintaining and establishing storage and inventory
management and scheduling/rescheduling and tracking of shipments of
general supplies to meet their testing needs;
o Ensures value for service or goods procured by the warehouse and
discusses any discrepancy and inefficiency with the Manager.
51. The parties agree that these items fell within the former Supervisor’s
Judgment/Problem Solving / Decision Making capacity.
12
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
C. WORK DUTIES – LEAD, LOGISTICS OPERATIONS
20
52. The following responsibilities / duties are set out below:
Delegated Human Resources Authority
Hiring
Direction & Control
o Managing Performance
o Assigning Staff and Directing the Work
o Determining Vacation, Overtime and Premium Pay for Employees o Making
Decisions regarding Leaves of Absence
Health & Safety and Other Responsibilities
Discipline
Grievances
Delegated Authority Human Resources Authority
53. In accordance with the PHO Delegation of Authority, Human Resources (“HR
DOA”), Ms. Sudjito and Mr. Vicente are responsible and accountable for
decisions affecting their employees within the terms of the applicable collective
agreement, PHO’s human resources policies and relevant legislation.18
54. The parties agree that pursuant to the PHO HR DOA, the unionized supervisor
role was not included in the ranks of management.
Hiring
55. Ms. Sudjito and Mr. Vicente have the authority to approve and have approved the
recruitment of staff positions, both permanent and temporary. Ms. Sudjito and Mr.
Vicente
18 See Tab 16: PHO Delegation of Authority, Human Resources dated July 10, 2017.
13
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
have the authority to interview and do interview job applicants. Ms. Sudjito and Mr.
Vicente have the authority to make job offers and do make job offers to successful
candidates.
56. For example, with respect to a permanent Logistics Clerk position at 661
University Avenue:
21
o on October 4, 2017, Ms. Sudjito, as the “Hiring Manager”, approved
the recruitment as being within her Unit’s approved budget;19
o Ms. Sudjito, together with Mr. Vicente, developed interview questions
to ask candidates for the position;
o on November 23, 2017, Ms. Sudjito interviewed candidate Alex
Pellettieri, asking the candidate six questions with a total possible score of
40 marks. Based on his interview answers, Ms. Sudjito scored the
candidate as 34.5 marks out of 40. Mr. Vicente was also on the interview
panel;20 and
o on November 24, 2017, Ms. Sudjito extended an offer of employment
to Mr. Pellettieri, asking him to sign back the job offer if he accepted its
terms and conditions by November 26, 2017 (which he did).21
57. As another example, Ms. Sudjito determined that she needed to hire an
employee on a temporary basis at 661 University Avenue because a full -time
employee in her Unit continued to be absent from the workplace on an extended
unpaid leave. Accordingly, on November 29, 2017, Ms. Sudjito extended an offer
of temporary full-time employment to
19 See Tab 17: Approval Form, October 4, 2017, “Approved by Manuela Sudjito”. 20 See Tab 18: Interview
Questions – Logistics Clerk, dated November 23, 2017. 21 See Tab 19: Employment Offer letter dated
November 24, 2017.
14
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
Ms. Melissa Scott, asking her to sign back the job offer if she accepted its terms and
conditions by December 1, 2017 (which she did).22
58. In February 2018, Ms. Sudjito, again as the “Hiring Manager”, approved an
extension of Ms. Scott’s temporary employment.
59. Ms. Sudjito also signed off on revised Logistics Clerk and Mail Room job
descriptions in 2017, stating as “Manager”: “I certify that the foregoing is an
accurate description of the position[s]”.23
60. Mr. Vicente, as the “Hiring Manager”, also hires for permanent and temporary
positions. For example, with respect to a permanent Logistics Clerk position at 81
Resources Road:
22
on October 4, 2017, Mr. Vicente, as the “Hiring Manager”, approved the recruitment as
being within his Unit’s approved budget;
Mr. Vicente, together with Ms. Sudjito, developed interview questions to ask candidates
for the position;
on November 23, 2017, Mr. Vicente interviewed candidate Jason Leung, asking the
candidate six questions with a total possible score of 40 marks. Based on his interview
answers, Mr. Vicente scored the candidate 39 out of 40 marks. Ms. Sudjito was also on
the interview panel;
on November 24, 2017, Mr. Vicente extended an offer of employment to Mr. Leung,
asking him to sign back the job offer if he accepted its terms and conditions by
November 26, 2017 (which he did); and
Tab 20: Job offer to M. Scott dated November 29, 2017. job descriptions at Tab 3.
22 See 23 See
15
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
Mr. Vicente’s completed the ECO Form (as “Manager”), confirming Mr. Leung into the
permanent position dated November 27, 2017 as well as the “Employee Life Cycle
Request” form (Mr. Vicente entered as the “Hiring Manager”).24
61. Ms. Sudjito and Mr. Vicente also have the authority to approve and certify
bargaining unit employee job descriptions. For example, for the Logistics Clerk
position (revised) and the Mail Room Clerk (revised) dated June 30, 2017, Ms.
Sudijito, as “Manager Position Title (Lead, Logistics Operations)”, signed
“Approval: I certify that the foregoing is an accurate description of the position”
for both positions.25
62. The parties agree that former bargaining unit Supervisor was involved in several
job competitions for both permanent and temporary positions and, in doing so,
developed questions in tandem with management; scored candidates as part of
the panel; and formed part of the interview and selection process.
63. The parties agree that former bargaining unit Supervisor never assumed the role
of Hiring Manager and did not sign off on job descriptions, as Manager or
otherwise.
23
64. The Supervisor did not approve or make offers of employment to successful
candidates.
Direction and Control
65. In their role, Ms. Sudjito and Mr. Vicente are responsible for and do direct and
control the day-to-day activities and working conditions of the employees who
report to them.
24 See Tab 21: authorizing hiring for a permanent position dated October 4, 2017; Mr. Vicente’s Interview
Questions and scoring of the candidate dated November 23, 2017; Mr. Vicente’s offer of permanent
employment to the candidate dated November 27, 2017; ECO form and “Employee Life Cycle Request”.
Also see Tab 22: Employment Offer Letter to Pat Porco dated November 24, 2017.
25 DOA, HR at Tab 16; Tab 3.
16
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
Managing Performance
66. Ms. Sudjito and Mr. Vicente set performance standards and conduct
performance appraisals.
67. For example, if performance standards are not met in Ms. Sudjito’s
determination, she conducts coaching meetings with the employee at issue. On
February 3, 2017, Ms. Sudjito met with a Logistics Clerk to review her
expectations regarding his waste management duties.26 On December 14, 2017,
Ms. Sudjito met with another Logistics Clerk after he received and accepted
damages items.27
68. Ms. Sudjito28 and Mr. Vicente29 also conduct formal performance appraisals of
their respective reports, determining whether the employee has “achieved” or
“not achieved” the PHO’s minimum work performance standards (e.g., “delivering
on key responsibilities”, “delivering on other activities that may be assigned”,
“attendance and punctuality” and “demonstrating PHO values”).
69. The signatures of Ms. Sudjito30 and Mr. Vicente31 are also required on all
Employee “Training/Competency Forms”, as “Managers”, to verify whether or not
any employee in training who reports to them is “competent”.
70. Ms. Sudjito and Mr. Vicente decide whether to approve training courses and are
authorized to release employees from their duties for up to 3 days for learning
and development. For example, Ms. Sudjito and Mr. Vicente approved their
respective employee groups for a course, “Transportation of Dangerous Goods:
Logistics and Warehouse”, in January 2018.
24
26 See Tab 23: PHO Meeting Record dated Feb 3, 2017.
27 See Tab 24: PHO Meeting Record dated Dec 14, 2017.
28 See Tab 25: three PHO “Performance Discussion Templates – OPSEU”, all signed by Ms. Sudjito as
“Manager”. 29 See Tab 26: example “Performance Discussion Template – OPSEU” dated February 22, 2018,
signed by Mr. Vicente as “Manager”.
30 See Tab 27: e.g., PHO Training / Competency Form signed by “Manager”, Ms. Sudjito, on January 16,
2018.
31 See Tab 28: example “Training / Competency Form” dated January 30, 2018.
17
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
Assigning Staff and Directing the Work
71. Ms. Sudjito and Mr. Vicente determine the daily duties, responsibilities and time
schedules for their reports, including break times and lunch. For example, Mr.
Vicente promulgates a “81 [Resources Road] daily duties and responsibilities and
time schedule,” including set times for employee breaks and lunch.32 He also
publishes schedules, directing employees to perform duties on a rotating basis.33
72. Ms. Sudjito and Mr. Vicente also manage the rotation and transfer of Logistics
Clerks between the 661 University Avenue location and the 81 Resources Road
location so that staff can gain experience in all of the various tasks and
functions.34
73. To initiate these employee changes, Ms. Sudjito and Mr. Vicente complete
Employee Change Order (“ECO”) forms as the written authorization necessary to
make the changes within PHO. As stated on PHO’s ECO forms, Ms. Sudjito is
the “Direct Supervisor” at 661 University Avenue and Mr. Vicente is the “Direct
Supervisor” at 81 Resources Road and Ms. Goenadi is their “Department
Head”.35
74. Ms. Sudjito and Mr. Vicente are responsible for developing and maintaining
various Key Performance Indicators (“KPI”) to ensure the effective and efficiency
operations of their respective Operations.
75. Both Ms. Sudjito and Mr. Vicente dedicate a significant portion of their work day
to production planning and to the daily reporting of KPI results. For example, Mr.
Vicente sets production schedules for his Logistics Operations36 and makes daily
productivity reports (e.g., reporting on orders entered, stock received, shipments
and kits produced).37
32 See Tab 29: e.g., daily duty schedule for November 20, 2017.
33 See Tab 30: “DynaCare – email and print out of daily manifest” duty rotation.
34 See Tab 31: e.g., email from Mr. Vicente to two Logistics Clerks regarding their rotation schedule dated
February 8, 2018.
25
35 See Tab 32: Sample ECO forms, signed by “Manager”, Ms. Sudjito.
36 See Tab 33: e.g., Master schedule for month of Feb 2018; Kit Assembly Production Reporting (Nov
2017).
37 See Tab 34: See daily KPI report summary spreadsheet for March 2018.
18
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
76. Ms. Sudjito and Mr. Vicente provide direction and leadership in the
implementation of new techniques and standards. For example, for the 81
Resources Road Logistics Operations, Mr. Vicente has initiated new processes
including new techniques to validate client orders, control inventory (receiving),
manage back orders etc.38
77. Ms. Sudjito39 and Mr. Vicente40 set the agenda for and conduct team meetings for
their direct reports. As stated by Ms. Sudjito while reserving the meeting date
with her team, “please ensure that you prioritize your work” to permit attendance.
Determining Vacation, Overtime and Premium Pay for Employees & Making
Decisions regarding Leaves of Absence
78. Ms. Sudjito and Mr. Vicente authorize and approve employee attendance and
manage vacation and “float day” credit balances for their respective groups. In
doing so, Ms. Sudjito41 and Mr. Vicente42 are provided with employee credit
balance reports from PHO Payroll.
79. Ms. Sudjito43 and Mr. Vicente44 determine whether or not to approve employee
vacation requests.
80. Ms. Sudjito45 and Mr. Vicente46 approve overtime, paid at a premium rate or
accrued as banked time, for their reports.
38 See Tab 35: pictures demonstrating new processes.
39 See Tab 36: as an example, “Team Meeting Agenda” for February 1, 2018 and Meeting Minutes re same,
including Ms. Sudjito’s determination of rotating schedules for employees between 661 University
Avenue and 81 Resources Road.
40 See Tab 37: example Meeting Agenda and Meeting Minutes dated February 5, 2018 by Mr. Vicente.
41 See Tab 38: email from PHO payroll to Ms. Sudjito re “Vacation, float and COC balances as of November
19, 2017”
42 See Tab 39: email from PHO payroll to Mr. Vicente re “Vacation, float and COC balances as of August 27,
2017”. 43 See Tab 40: See “Vacation/Float Request Forms” dated May 4, 2017, July 24, 2017 and August 1,
2017, Part B “To be completed by Manager”, signed by Ms. Sudjito.
44 See Tab 41: See “Vacation/Float Request Forms” dated December 6, 2017 signed by Mr. Vicente.
45 See Tab 42: See “Attendance Records” listing “Premium Hours” and signed by Ms. Sudjito.
46 See Tab 43: See “Attendance Records” listing “Premium Hours” and signed by Mr. Vicente.
26
19
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
81. Ms. Sudjito and Mr. Vicente are also authorized to approve other Collective
Agreement premium payments and allowances including Call Back (Article 18.4),
Stand-by time (Article 18.5), On-Call Duty (Article 18.6), Time Credits While
Traveling (Article 18.11) as well as to approve a compensating day off in lieu of
working on a holiday.
82. Ms. Sudjito and Mr. Vicente are authorized to grant and manage leaves for their
groups, including bereavement leaves,47 Personal Leaves,48 Family Medical
Leaves,49 leave with or without pay up to 5 days, employee time off work for
religious observance, Pregnancy Leaves and Parental Leaves,50 Special Leaves
for special or compassionate purposes,51 Jury and Witness Duty leaves52 and
Military and Reservist leaves.53
83. Ms. Sudjito and Mr. Vicente are authorized to manage and do manage short term
sickness plan (“STSP”) credit usage by their employee groups.54
Health & Safety and Other Responsibilities
84. Ms. Sudjito and Mr. Vicente enter into accommodation plans and return to work
(“RTW”) plans with their employees.55
85. In their role, Ms. Sudjito and Mr. Vicente complete and sign off on PHO
Laboratory Accident / Incident Reports. For example, Ms. Sudjito investigated
injuries in January and in February 2017 and made recommendations to prevent
re-occurrences of the incidents or accidents.56
47 Article 15.4 of the Collective Agreement.
48 Article 15.1 of the Collective Agreement.
49 In accordance with the ESA, 2000.
50 Articles 15.6 and 15.7 of the Collective Agreement. 51 Article 15.2 of the Collective Agreement.
52 Article 15.5 of the Collective Agreement.
53 Article 15.8 of the Collective Agreement.
54 Article 16 of the Collective Agreement.
55 See Tab 44: Return to Work plan signed by “Manager”, Ms. Sudjito and dated June 27, 2017. 56 See Tab
45: PHO Laboratory Accident / Incident Reports signed by Ms. Sudjito
20
27
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
86. While the former bargaining unit Supervisor would have contributed to such
reports in his role, his Manager would had to have signed off on any report
before it went to PHO’s Safety Office. In contrast, as demonstrated in the reports
at Tab 45, Ms. Sudjito signed off on the reports in her own right as a manager.
87. Ms. Sudjito and Mr. Vicente manage and oversee Workplace Safety and
Insurance claims related to their respective groups together with PHO’s Health,
Safety & Wellness Unit.
88. Ms. Sudjito and Mr. Vicente are also “supervisors” for the purposes of the Ontario
Occupational Health and Safety Act (“OHSA”) given that they have “charge of a
workplace” (i.e., broad control over the planning of work and how it is carried out)
and “authority over a worker” (i.e., can exercise specific powers to ensure a
worker’s compliance with directions). As result, they have specific OHSA
obligations including the identification of workplace hazards and regarding work
refusals.
89. Ms. Sudjito and Mr. Vicente are also tasked with managing privacy breaches,
completing the necessary reports (e.g., Part B of the form states that it must “be
completed by manager”). For example, see the PHO Privacy Report from
February 2018 that Ms. Sudjito became engaged in. Again, as management, Ms.
Sudjito and Mr. Vicente are empowered to get to root cause of the problem and
can implement effective corrective action.57
Discipline
90. Ms. Sudjito and Ms. Vicente are authorized to issue letters of reprimand (i.e.,
disciplinary, not simply letters of counsel) and will make effective
recommendations concerning the imposition of more severe discipline including
suspensions, demotions and dismissal, as applicable.
57 See Tab 46: PHO Privacy Report updated February 8, 2018.
21
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
91. In dealing with any employee discipline matter, Ms. Sudjito and Mr. Vicente
would handle the allegation meeting, the disciplinary meeting, as applicable, and
would sign off on all communications to the employee related to the discipline
matter.
92. The former bargaining unit Supervisor did not have any disciplinary p owers.
28
Grievances
93. Ms. Sudjito and Mr. Vicente are the management representatives at the
“Complaint Stage” (as the Collective Agreement states: “...it is understood that an
employee has no grievance until he has first given his or her immediate
supervisor the opportunity of adjusting his or her complaint”).58 Ms. Sudjito and
Mr. Vicente are also authorized to respond to formal grievances, including
hearing the grievance at the “Step 2” level if the grievance involves a working
condition. This responsibility includes providing the Union “with a written
response to the grievance by the end of the 20th working day following the date
of the filing of the grievance” if the Step 2 process does not resolve the
grievance.
94. The former bargaining unit Supervisor did not have any involvement in the
processing of employee grievances.
THE INSTANT GRIEVANCES AT ARBITRATION
95. On July 28, 2016 and February 3, 2017, the Union filed the instant Grievances
(OPSEU# 2017-0545-0005) in conjunction with several other grievances.
96. On October 17, 2017, the parties settled the individual matters relating to the
layoff and other grievances of an employee, Mr. Thomas Nicholson, pursuant to
a Memorandum of Settlement (“MOS”).
97. In the preamble of the MOS, the parties noted:
58 Article 9.4 of the Collective Agreement.
22
Solely and exclusively for the purposes of the arbitration before Arbitrator Fisher in the matter of OPSEU v. PHO, Grievance
Nos. 2017-0545-0005 (February 3, 2017) and 2016-0545-0013 (July 28, 2016) [“PHO Inclusion/Exclusion matter”]. The Employer
and the Union reserve their respective rights to call viva-voce evidence in this matter.
WHEREAS the Grievor filed the above-captioned grievances alleging, among other
things, that he had been dealt with contrary to legislation including the Ontario Human
Rights Code and the Collective Agreement;
WHEREAS reinstatement was a possible outcome of the grievances and the grievor
hereby relinquishes his right to reinstatement in consideration for the following terms;
WHEREAS the Employer denies that it has violated any of the Grievor’s rights, including
any rights under legislation including the Collective Agreement and the Ontario Human
Rights Code;
WHEREAS, notwithstanding the above, the parties are desirous of resolving all
outstanding grievances and differences between the parties;
29
98. Mr. Nicholson signed a full and final release, stating:
The Grievor hereby releases and forever discharges the Crown in Right of
Ontario and the Employer, its servants, agents and directors of and from all
actions, applications, causes of action, grievances, claims, differences,
complaints and demands of every nature and kind arising out of, as a result of
the grievances and the circumstances giving rise to the grievances, including but
not limited to all claims under the Collective Agreement, the Employer’s
Workplace Discrimination and Harassment Prevention Policy, the Ontario Human
Rights Code, the Public Service of Ontario Act, the Occupational Health and
Safety Act, the Labour Relations Act, the Employment Standards Act and the
common law.
99. The parties agreed that the central remaining question – whether the Leads,
Logistics Operations perform managerial duties and must therefore remain
outside of the bargaining unit -- could proceed before Arbitrator Fisher as follows:
The Union agrees that, within 30 days from the execution of this agreement, it
shall advise the Employer whether it intends to pursue grievances 2016 -020 and
2017-008. These grievances are deemed to be withdrawn if the Union does n ot
contact the Employer by that time. Arbitrator Barry Fisher shall be seized with
carriage of these grievances should they proceed.
23