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HomeMy WebLinkAbout2006-1689.Magee.09-02-04 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2006-1689 UNION#2006-0310-0013 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Magee) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFOREVice-Chair Nimal Dissanayake FOR THE UNION John Brewin Counsel Ryder Wright Blair & Holmes LLP FOR THE EMPLOYER George Parris Counsel Ministry of Government Services HEARING November 19, 2008 and January 26, 2009. 2 Decision [1]This decision relates to a grievance dated August 29, 2006 filed by Mr. Ian Magee (?grievor?), wherein he grieves the employer?s denial of his request for a lateral transfer under article 6.6.1 of the collective agreement which reads: 6.6.1. With the agreement of the Union, the employee and the Employer, an employee may be assigned to a vacancy where: (a) the vacant position is identical to the position occupied by the employee, and (b) the vacant position is in the same ministry as the position occupied by the employee, and the provisions of Articles 6.1.1, 6.2., 6.3, 6.4 and 6.5 shall not apply. [2] At the time of his request, the grievor was employed as a Conservation Officer at the Ministry?s Aurora Office. Thus, it is common ground that the ?identical position? requirement in article 6.6.1 (a) and the ?same ministry? requirement in article 6.1.1(b) are met. While the grievance as filed included a number of alleged violations, at arbitration the union confined its claim to the appropriateness of the employer?s exercise of discretion under article 6.1.1. [3] The parties filed the following Agreed Statement of Fact: 1. The parties entered into a Memorandum of Settlement on November 22, 2005 re GSB # 2005-0327. By the terms of the Memorandum of Understanding the Ministry agreed ?to reasonably consider the grievor?s lateral transfer request as per the Ministry of Natural Resources, Lateral Transfer Pilot Process? ?[s]hould it be determined by the Manager to fill the vacant Conservation Officer position located in the Vineland Area Office on a permanent basis and approval has been received.? 2. The Ministry and the Union had previously agreed in writing to a policy/pilot project covering the lateral transfer process for employees in the Ministry, and had in place a Memorandum of Agreement re Lateral Transfer dated November 9, 2004. 3. On November 29, 2005 the Grievor amended an existing lateral transfer application for a lateral transfer to Vineland. 4. The Grievor sought the transfer to Vineland because he had concluded he needed to be in Vineland to be near his elderly parents. His father was 80 and had undergone heart surgery in 2001. His mother was 75. 5. In July, 2006 the Grievor and the Union learned that there was a vacancy for the position of Conservation Officer at Vineland that the Ministry intended to fill. The Employer contacted the Grievor before posting the position and inquired as to his reason for requesting the lateral transfer. 3 6. Mr. Brad Gerrie, Regional Operations Manager, by telephone, discussed with the Grievor his reasons for requesting the transfer. The Grievor indicated that his request was on compassionate grounds and truthfully and frankly responded to the questions. Mr. Gerrie made a ?Memo to file? immediately after the telephone conversation detailing their discussion. 7. Following his discussion with the Grievor, Mr. Gerrie decided that the Grievor?s reason for seeking the transfer did not meet the Ministry?s criteria for obtaining a lateral transfer. Mr. Gerrie forwarded his conclusions via email to the Ministry?s Human Resources Branch on July 6, 2006. 8. Mr. Gerrie sought and received two references from individuals who had managed Mr. Magee. Mr. Gerrie?s evidence would be that these references had no influence on his decision to turn down the Grievor?s lateral request. (para. 9 deleted on agreement) 10. The vacancy was subsequently posted by the Ministry, and the position was eventually awarded to another Conservation Officer following a competition. [4] Also filed in evidence were several documents. The Memorandum of Settlement referred to in para. 1, included the following term: Should it be determined by the Manager to fill the vacant Conservation Officer position located in the Vineland Area Office on a permanent basis and approval has been received, the employer agrees to reasonably consider the grievor?s Lateral Transfer Request as per the Ministry of Natural Resources, Lateral Transfer Pilot Process. [5]The ?Ministry of Natural Resources, Lateral Transfer Pilot process? (herein after ?the policy?) was in fact a Memorandum of Agreement reached between the union and the employer on November 9, 2004. It includes the following: PREAMBLE Whereas employees may request a lateral transfer to a vacancy, in accordance with Article 6.6.1 of the OPSEU collective agreement, the Union and the Ministry of Natural Resources (?the parties?) recognize that such requests should be based on compassionate need and are subject to the agreement of the employer and the union, and acceptance by the employee. Requests for lateral transfers should be based on compassionate need, and exclude personal reasons such as, but not limited to, career development or personal business reasons. The ministry will determine which vacancies it will consider filling through the lateral transfer process. Throughout the review and agreement processes (see below), the Human Resources (HR) contact person and the OPSEU job Security Officer are encouraged to discussions communicate with each other as needed. It is understood that these 4 will be without prejudice in the event that a dispute arises relevant to the lateral transfer request. The parties have agreed to institute the following pilot process with respect to processing lateral transfer requests at the Ministry of Natural Resources, (?the ministry?). . . . Ministry Approval The HR contact person will determine whether the lateral transfer request falls within the intent of the lateral transfer provision in the collective agreement. This may require further investigation seeking more information than was provided in the Lateral Transfer Request. The HR contact person may contact the OPSEU Job Security Officer to consult on how any additional necessary information may most appropriately be obtained. The HR contact person will consult management staff, which may include a review of the employee?s personnel file, including performance appraisals, to confirm that the employee is qualified to perform the duties of the vacant position. The ministry will not rank the employee?s performance against the performance of other employees who are requesting lateral transfers to the same vacancy. The HR contact person will forward the request or requests that are approved to the OPSEU Job Security Officer for the union?s approval. . . . DISPUTE RESOLUTION The Parties agree jointly to select and request a Vice-Chair from the Grievance Settlement Board (GSB) for the arbitration hearings of grievances related to this Agreement or its interpretation, implementation or administration. (Emphasis added) [6] The evidence is clear that the employer did determine that the position in question should be filled by lateral transfer and did consider the grievor?s request. While employer counsel made several submissions as to the nature of the employer?s discretion under article 6.6.1 generally, and the Board?s authority to review the exercise of that discretion, it is clear, and counsel conceded, that particularly in light of the Memorandum of Settlement which obliged the employer to ?reasonably consider? the grievor?s requests for the lateral transfer, the Board did have authority to review for reasonableness. [7] The grievor filed a request for lateral transfer form which set out as ?Reason for Request?, ?Assist family with health care of aging father who underwent open-heart surgery?. Mr. Brad Gerrie, the Regional Operations Manager, sought further information 5 from the grievor during a telephone call on June 29, 2006. In a memo to file, Mr. Gerrie wrote as follows: 1. Ian MAGEE stated that his father had quadruple bypass surgery 5 years ago and that ?he was not doing too badly?. His father is 79 years of age. He indicated that he wished to transfer to the St. Catharines area to look after his aging parents. His mother is 74. both parents are active and living in a condominium in St. Catharines. 2. Ian MAGEE indicated that his family is very close and that he has a brother living in the Port Carling area and two younger sisters living in St. Catharines. One sister recently had a baby. 3. Ian MAGEE lives in Richmond Hill and travels to St. Catharines on a regular basis (once every couple of weeks on average). He stated that it takes him 1½ hours travel time when traffic is good. 4. Ian MAGEE indicated that both of his parents still drive but it is ?nice to be with aging parents?. He stated again that his father did have quadruple bypass and might need help with carrying groceries although he admitted that his father was still quite active. 5. Ian MAGEE indicated that he is involved with a ?Pheasants Forever? chapter in the St. Catharines area and stated that he found it ?a pain in the ass to drive back and forth with gas and stuff?. 6. Ian MAGEE stated that he wished to be closer to fiends and family. Mentioned that he has a couple of friends who are having some health issues. 7. Ian MAGEE stated that he has been trying to get down to the Niagara area for the last 15 years. He has unsuccessfully competed for a couple of conservation officer positions (two interviews) and has inquired about vacancies. 8. The discussion with Ian around the compassionate grounds was vague and not too detailed regarding his father?s health. I got the sense that his father has done well since his surgery 5 years ago. Notwithstanding his parent?s aging, I also got the sense that they are quite mobile and active. There are two younger siblings living in St. Catharines. 9. Ian MAGEE clearly wishes to live and work in the Niagara area. 10. My conversation with Ian MAGEE lasted approximately ½ hour. 11. I electronically forwarded Ian MAGEE a form entitled ?Permission to Obtain Information Related to Individual?s Lateral Transfer Request?. 12. Later in the afternoon on June 29, 2006 I received a fax from Ian MAGEE of the completed form with his signature indicating three individuals, specifically; Bill Lafferty, Nelson Denyes and Tracy Smith. (paragraph numbers added) [8] The evidence indicates that Mr. Gerrie forwarded ?Employee Reference Check? forms to two managers. Mr. Bill Lafferty completed a Reference Check Form wherein he rated 6 the grievor?s competence in various skills required of a Conservation Officer. Most were rated as ?average?. The only negative was an ?unacceptable? rating for ?Dealing with Staff?. In addition, in response to a question ?Is there anything else of significance we should be aware of, or any further questions we should have asked regarding the suitability of Mr. Ian Magee for the position I have described??, Mr. Lafferty wrote, ?There are two letters of reprimand on file regarding Ian Magee?s unprofessional behaviour?. In response to a question ?Would you employ him in a conservation officer position, if you had the opportunity??, he wrote ?no?. [9] The second reference was provided by Mr. Tracy Smith. For most part, Mr. Smith wrote ?unable to comment? relating to rating of competencies. However, to the question ?How would you rate the employee?s interpersonal skills in terms of dealing with public, staff and media??, he wrote ?Ian has had difficulties with his fellow officers as it relates to inter-personal skills. There have been serious conflicts for which there has been intervention by both his immediate supervisor and myself.? [10] The evidence is that upon receiving the last of the reference checks on July 6, 2006, Mr. Gerrie e-mailed the HR Consultant, Ms. Gloria Vidal as follows: ?I have completed my review of this request, and based on the findings of my review, I wish to advise that I do not support this lateral transfer request.? [11] By e-mail Ms. Vidal requested Mr. Gerrie to provide ?the rational for management not supporting this lateral ??. Mr. Gerrie replied as follows: Management does not support this request for the following reasons: In my opinion, there are not strong compassionate grounds for the request, specifically; 1. reason for request is dated in that the open heart surgery referred to was 5 years ago and discussion with the applicant confirmed that the father is active and living with spouse (both parents drive) 2. no indication by applicant that either parent, although aging, require constant care (the example provided by applicant was that he needed to assist with carrying groceries) 3. the applicant lives within 1½ driving distance to his parents residence 4. two siblings who can also provide care, if required, currently live in same community as parent?s References provided by applicant did not bear out any obvious reason to support a lateral transfer request. 7 A review of the personnel file indicates that applicant has recent performance issues that are being monitored closely. [12] Union counsel submits that the combined effect of article 6.6.1 and the policy agreed to between the parties, is an agreement by the parties that where the requirements of the policy are satisfied, it is appropriate to circumvent the job posting provisions of the collective agreement and allow a lateral transfer request. He submitted that the policy has three requirements. First, that the requesting employee?s current position must be identical to the position sought through lateral transfer. Second, the employee must be qualified for the position sought. Finally, the lateral transfer request must be based on compassionate need, as opposed to personal reasons. [13] Counsel submitted that there can be no dispute that the positions are identical, and that as an employee already holding a position of Conservation Officer, the grievor is qualified for the identical position he was seeking in a different location. Therefore, the only basis upon which the employer denied his request was that it was not on the basis of compassionate need. He submitted that the employer?s conclusion in that regard was not reasonable. First, counsel argued that Mr. Gerrie, in reaching his conclusion, took into account irrelevant factors, namely, the grievor?s past performance/competence issues and his past discipline. Second, he submits that Mr. Gerrie in any event had concluded that the grievor?s request was based on compassionate need, but denied it only because he was of the view that the compassionate need was not ?strong?. Counsel submits that the policy does not require ?strong compassionate? needs, and that the compassionate needs offered by the grievor came within its intent. [14] Counsel for the employer did not dispute that the two positions were identical or that the grievor was qualified for the Vineland position. However, he submitted that Mr. Gerrie?s decision that the grievor lacked compassionate needs was not only reasonable, but also correct. He argued that there is a broad spectrum of compassionate needs. The policy does not state that any compassionate need, however trivial, is sufficient. The effect of the policy is to deny other bargaining unit employees, including those with greater seniority, the opportunity to compete for vacant positions. Therefore, the parties could 8 not have intended that any compassionate need would be sufficient to circumvent such important employee rights. [15] The 2005 memorandum of settlement clearly obliged the employer to ?reasonably consider? the grievor?s request for lateral transfer to Vineland ?as per the Ministry of Natural Resources, Lateral Transfer Pilot Process?. While that process provides that lateral transfer requests ?are subject to the agreement of the employer and the union, and acceptance by the employee?, employer counsel did not take the position that the employer had an untrammelled discretion to turn down any request at its whim. It was conceded, at least inferentially, that where a request is based on compassionate need within the meaning of the policy the employer is obliged to approve it. I find, in any event, that that is the effect of the policy, once the employer had decided to fill a particular vacancy through a lateral transfer. [16] The policy does not define ?compassionate need?. However, it excludes ?personal reasons such as career development or personal business reasons?. There was no suggestion that the reasons offered by the grievor were personal reasons. The issue is whether they came within the intent of the policy, as the term ?compassionate need? is used therein. [17] Filed in evidence was a Ministry document titled ?Lateral Transfer (OPSEU) Business Procedures?. A review indicates that it sets out the employer?s understanding of how the policy is to be implemented. Under the section ?Ministry Approval? it provides: MINISTRY APPROVAL Additional Information Needed The Staffing Unit will determine whether the lateral transfer request falls within the intent of the lateral transfer provision in the collective agreement (in consultation with the OPSEU Job Security Officer as necessary). This may require further investigation seeking more information than was provided in the employee?s lateral transfer request. In these cases, the Staffing Unit and the OPSEU Job Security Officer will consult to determine how any additional necessary information may most appropriately be obtained. Reviewing Eligible Requests The ministry review will include consultation with management staff, and may include a review of the employee?s personnel file including performance appraisals to confirm that the employee is qualified to perform the duties of the vacant position. 9 The ministry will not rank the employee?s performance against the performance of other employees who are requesting lateral transfers to the same vacancy. During the ministry review process the vacancy manager is to provide each employee whose request is being reviewed with an opportunity to personally outline the circumstances of the lateral transfer request if the employee wishes to do so. This may be through a telephone or face-to-face discussion. A manager?s decision to approve or not approve to an employee lateral transfer request must be made: . in good faith and without discrimination, and . as a genuine exercise of discretionary power, as opposed to rigid policy adherence, and . after consideration of the merits of the individual employee circumstances, and . after all relevant facts have been considered, and conversely, all irrelevant considerations have been rejected. The vacancy manager may approve one or more lateral transfer requests for a single vacancy. Once the ministry decision is made the Staffing Unit will forward the approved request(s) to OPSEU for the union?s review and approval. The information sent to OPSEU will also include the name(s) of other requestors reviewed but not approved. (Emphasis added) [18] That document was supplemented by ?a Manager?s toolkit?, the use of which was recommended to managers. That sets out the employer?s understanding of the Grievance Settlement Board jurisprudence on management exercise of discretion as follows: Exercising management discretion is more than just making a simple yes or no decision to a situation. The Grievance Settlement Board (GSB) has provided direction on the use of management discretion in other situations that also apply when considering lateral transfer requests. The following excerpt from MNR Labour Relations Issue Paper #2 (June 1998) explains: ?The GSB has been consistent in applying the following four-fold test when reviewing the Employer?s decision to deny such a request: . the decision must be made in good faith and without discrimination; . it must be a genuine exercise of discretionary power, as opposed to rigid policy adherence; . consideration must be given to the merits of the individual application under review; and, . all relevant facts must be considered and, conversely, irrelevant considerations must be rejected. In addition, the GSB has also identified the following four criteria as representing the minimum standards for establishing reasonableness in the decision-making process. Specifically, the Employer must: 10 . make reasonable efforts to gather relevant facts as they apply to the particular request under review; . apply some reasonable decision rule which is not arbitrary or discriminatory; . make an honest effort to make a decision between possible alternatives; and, . act consistently with the decision that is made. It is well established that the role of the GSB in these cases is restricted to a review of the reasonableness (versus the ?correctness?) of the Employer?s decision. In doing so, the GSB will consider the reasonableness of both the criteria used in the decision-making process, and the conclusion drawn from the application of these criteria to the employee?s particular circumstances. [underlining added] [19] Whenever the employer is required to exercise discretion, unless otherwise explicitly provided, it must, inter alia, make reasonable efforts together and consider all information relevant to the issue it is called upon to decide. Second, it must not consider information not relevant to that issue. The employer?s own internal documents reviewed above correctly recognize that. In the case hand, there was no issue that the grievor had the qualifications for the vacant Conservation Officer position. The only issue that remained was whether the grievor?s lateral transfer request was based on compassionate need as per the policy. Therefore the employer was required to gather all information relevant to that issue. The grievor?s request form set out the basis for the request as ?Assist family with health care of aging father who underwent open-heart surgery?. As he was entitled to do, Mr. Gerrie chose to seek further information with regard to those reasons offered, by questioning the grievor. The information he elicited are set out in the ?Memo to File?. At para. 8, Mr. Gerrie notes that the compassionate grounds offered by the grievor were ?vague and not too detailed regarding his father?s health?. He notes that he got ?the sense? that the grievor?s father has done well since his surgery 5 years ago?. In the reasons for denying the request (Para. 11 supra), Mr. Gerrie concludes that the discussion ?confirmed that the father is active? and that there was no indication by the grievor that either parent, although aging, require ?constant care?. He notes that the grievor noted the example of needing assistance with carrying groceries. [20] The employer?s procedure for administering lateral transfers under the policy recognizes that in some cases more information than that provided in the request itself may be required. It is stipulated that ?In these cases, the staffing unit and the OPSEU Job 11 Security Officer will consult to determine how any additional necessary information may most appropriately be obtained?. In the toolkit referred to above, at p. 5 it is stated that: In practice, the GSB has emphasized that the Employer must make a diligent effort to secure all relevant facts as they relate to the request. This has been deemed to involve asking the employee specific relevant questions, as opposed to simply requesting that the employee provide all details. (Emphasis added) [21] Considering that Mr. Gerrie was of the view that the grievor?s discussion around the compassionate grounds ?was vague and not too detailed regarding his father?s health?, it was open to him, and he was obliged, to clear up that vagueness and obtain any details he deemed necessary, by posing any specific question or requesting specific information. He did not do so. Yet, he exercised his discretion based on ?the sense? he got that the grievor?s father was doing well and did not need any assistance beyond assistance for carrying groceries. This is not, in my view, a reasonable conclusion. It must be noted that in the transfer request form itself the grievor had very clearly set out that he needed to ?assist family with health care of aging father who underwent open-heart surgery?. There is no evidence that the grievor ever retracted that assertion. On the contrary, para. 1 of Mr. Gerrie?s memo to file notes that the grievor indicated during that conversation also, that he wished to transfer to the St. Catharines area to look after his aging parents. [22] Employer counsel submitted that the compassionate needs requirement was not met because all that the grievor wished was to live close to family. He submitted that while that wish is understandable on the part of any employee, it did not constitute a compassionate need. I conclude, in view of the facts before me, that it is not reasonable, based on the information that was before Mr. Gerrie, for him to conclude that the grievor had no need to assist his aging parents, particularly his father who had heart surgery, beyond carrying groceries. While there may have been two other siblings living in the area, the grievor was seeking ?to assist family? with the father?s health care. There was no information before Mr. Gerrie, based on the evidence put before me, that contradicts the grievor?s assertion in that regard. [23] In the process of hiring an employee, the employer obviously is entitled to assess the employee?s suitability for the position sought. In doing so, the employer is entitled, inter 12 alia, to consider any performance issues an applicant has had. However, a request for a lateral transfer is not a hiring, and in this case is governed by specific agreements between the parties, i.e. The Minutes of Settlement and the policy. These documents require that the grievor be qualified for the position sought. However, once it is confirmed that he is qualified, the policy does not permit the employer to deny a lateral transfer based on performance issues. This is supported by the provision that once it is confirmed that the employee is qualified ?The Ministry will not rank the employee?s performance of other employees who are requesting lateral transfers to the same vacancy?. If the parties intended that an employee?s performance is not to be ranked where he is competing with other lateral transfer requests, they could not have intended that a request by a qualified employee can be turned down based on level of performance, where there is no competing requests. Similarly the employer?s own business procedure envisages that personnel files may be reviewed, but only ?to confirm that the employee is qualified to perform the duties of the vacant position.? [24] As per the policy, since the identical job and qualification requirements were satisfied, the remaining issue was the existence of compassionate need. The reference checks, or the review of the personnel file had nothing whatsoever to do with that issue. The two managers? assessment of the grievor?s level of competence in the various skills of a Conservation Officer or their view as to whether they would hire the grievor, are factors completely irrelevant under the process envisaged by the policy. Also irrelevant is the fact that the grievor?s personnel file had references to performance issues. [25] Employer counsel inferentially appeared to concede that point, when he relied on para. 8 of the agreed statement of facts which stated that Mr. Gerrie?s evidence would be that the two references he obtained had no influence on his decision. However, the evidence does not support that assertion. In his e-mail, Mr. Gerrie was directly responding to the HR Consultant?s request that he provide ?the rationale? for his denial of the lateral transfer request. In that e-mail Mr. Gerrie was providing the rationale for his decision. In his response, Mr. Gerrie purports to set out ?the following reasons? (in the plural). The first reason he sets out is that there were no strong compassionate grounds for the request. He sets out four reasons for coming to that conclusion. Then he sets out a second and third 13 rationale for his decision. He writes that the references ?did not bear out any obvious reason to support a lateral transfer request?, and further that ?a review of the personnel file indicates that the applicant has recent performance issues?. The inclusion of those two latter statements in correspondence specifically intended to provide the rationale for his decision, very strongly suggests that those issues were part of the rationale. Some credible explanation is required to conclude otherwise. No explanation has been offered as to why those statements were included, if they had nothing to do with the decision. In those circumstances, the conclusion is inevitable that they formed part of the reasoning for denying the request. [26] Employer counsel repeatedly emphasized that the granting of a lateral transfer request has the effect of circumventing the job posting provisions of the collective agreement, that it denies other employees the opportunity to complete for vacant positions, and that it denies the employer the opportunity to select an employee from a pool of applicants. That is true. However, the parties in their wisdom have deemed it appropriate to do so in circumstances where an employee who is qualified seeks a lateral transfer to an identical position, provided the request is based on compassionate need. The parties have built in other safeguards. Thus a lateral transfer does not take effect upon the employer?s approval. It must also be approved by the union. In light of this specific protocol agreed to between the parties, it is not open for the employer to add to the requirements stipulated in the policy, such as level of performance, out of a concern for protecting the collective agreement rights for other employees. [27] Based on the terms set out in the policy, the facts relating to the grievor?s lateral transfer request, and the employer?s decision making process, I conclude that the employer did not ?reasonably consider? the grievor?s lateral transfer request as per the policy, as it was obliged to do pursuant to the Memorandum of Settlement. I find on the face of the documents before me, that the grievor?s request was based on ?compassionate need? within the intent of the pilot process. The employer came to a opposite conclusion on the basis of a subjective ?doubt?, without seeking the information it needed to clarify that doubt. The agreed statement of facts at para. 6 states that the grievor answered any question put by Mr. Gerrie truthfully and frankly. It was open to Mr. Gerrie to pose specific questions about the parent?s health-care needs to the grievor. In fact, the 14 employer?s ?toolkit? explicitly states that a diligent effort must be made to secure all relevant facts as they relate to the request, and that that involves asking the employee specific questions. I find that there was no information before Mr. Gerrie which could have reasonably led him to conclude that the grievor?s request was not based on compassionate need. [28] More importantly, I find that the employer considered irrelevant information relating to performance issues, despite the fact that the grievor?s qualification for the position in question was not in issue. In doing so, the employer was not in compliance with the terms of the policy. [29] Therefore the grievance is allowed. Besides a declaration of a breach, the union sought an order that the grievor be granted the lateral transfer to the Vineland office. Employer counsel indicated that the Vineland position in question was still vacant and made no submissions opposing the union?s remedial request. Accordingly it is hereby ordered that the grievor be forthwith granted a lateral transfer to the vacant Conservation Officer position in Vineland. [30] I remain seized in the event there is any disagreement with regard to implementation. th Dated at Toronto this 4 day of February 2009. Nimal Dissanayake, Vice-Chair