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HomeMy WebLinkAbout2013-1446.Union-Armstrong et al.21-04-14 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-1446, 2013-1574, 2013-1696 UNION#2013-0999-0049, 2013-0999-0063, 2013-0999-0069 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union-Armstrong et al) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Reva Devins Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING February 1 and March 5, 2021 - 2 - Decision [1] These grievances are part of a series regarding the operation of the Transition Exit Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The parties agreed that the current matters should be determined in accordance with Article 22.16 of the Collective Agreement. [2] Grievances were filed by five Youth Services Officers in the Ministry of Children, Community and Social Services (‘MCCSS’) Youth Justice (‘YJ’). Each of the Grievors applied for TEI before they retired from the Ontario Public Service (“OPS”). Their requests were all approved, however, the Union alleges that they could have been granted earlier if the Grievors were given better information. [3] The parties submitted the following Agreed Statement of Facts: 1. A number of employees in various positions employed by the Ministry of Children, Community and Social Services (MCCSS) (the “Ministry”) Youth Justice (YJ) working in a number of institutions/workplaces applied for TEI between January 2013 to December 2018 (the “TEI Applications”) and a number of grievances have been filed on behalf of a number of applicants. 2. There were five (5) individual grievors: i. Rick Sostar, Youth Services Officer ii. Ana Armstrong, Youth Services Officer iii. Michael Gruhl, Youth Services Officer iv. Anne Kellner Youth Services Officer v. Roman Kotewicz, Youth Services Officer 3. The Ministry approved the TEI Applications filed by Rick Sostar, Ana Armstrong, Michael Gruhl, Anne Kellner and Roman Kotewicz were all approved with an effective date in March of 2015. It would be the Ministry’s evidence that it did grant these TEI applications as a result of operational factors impacting the Sprucedale Youth Centre at the relevant time. The Union does not have evidence to the contrary. 4. For the purposes of these grievances, the Employer does not dispute that the requirements of paragraph 2(i) of Appendix 46 were met. This is without prejudice to other matters. - 3 - 5. It will be the Ministry’s evidence that the Ministry reviewed and decided whether to approve TEI applications on an annual basis, and did so prior to the end of the fiscal period (the fiscal year end is March 30th). The number of TEI’s that could be granted in any year were based on a combination of operational needs as well as whether there was budgetary funding available at the end of the fiscal year. Because the funding would not be available after the end of fiscal, any approved TEI’s would need to commence prior to the end of the fiscal year (March 30th) so their cost could be attributed to the year ending. The Union does not have evidence to the contrary. 6. The work of the employees in question relate to the custody and probation of young persons (similar to the Adult Correctional system). The workloads of the employees in question are entirely dependent upon the numbers of young offenders in the system, which can fluctuate from year to year. As well, with respect to Sprucedale, staffing requirements are not only related to youth custody numbers, but also to minimum staffing levels to operate the facility regardless of capacity. As well, there are currently higher levels of FXT Youth Services Officer working in the institutions based upon client needs. It would be the Ministry’s evidence that workforce reductions or increases are not based solely on the levels of youth custody and probation at a specific time, but rather over a sustained period of time as it is difficult to impossible to determine future occupancy and probation requirements. The Union does not have evidence to the contrary. 7. The Administrator of Sprucedale at the time didn’t have the authority to provide any information or advice about TEI, and made no decisions with respect to TEI. He could not have advised any employees on the terms of any TEI approval, or on the timing of their exit. Even if the Administrator advised any applicant as to when their exit date would be, he did not have the authority to determine eligibility or exit date. 8. The grievors were free to seek advice regarding TEI from the union. MCCSS YJ Sprucedale: a. Rick Sostar (CSD May 19, 1987) applied for TEI on April 30, 2014. He was advised that he would be considered for the second phase list for TEI. He exchanged emails with Kim Gallow. He filed a grievance and shortly thereafter received a response. His application was approved with an effective date of March 28, 2015 - salary continuance with a final exit date of Aril 11, 2016. His position was not replaced when he retired. A colleague (CSD 1980) was granted entitlement to TEI at the end of March, 2014 and exited the OPS on March 1, 2015. b. Ana Armstrong (CSD July 2, 1980) applied for TEI on April 1, 2014. Her application was not initially approved however it remained on file and her application was granted with an effective date of March 28, 2015 and exited the OPS on June 1, 2015. A colleague (CSD 1980) was granted entitlement to TEI at the end of March, 2014 and exited the OPS on March 1, 2015. It is also - 4 - Armstrong’s understanding that a large number of employees employed at Brookside were approved for TEI. A TEI Q & A was released by Management Board in 2013 and an updated version was released in 2014 that was more in-depth and provided more detail. The Q and A for TEI stated that if approved they could use vacation and CTO as paid leave prior to the last day of work. The last day of work could be negotiable between the employee and the manager. The Grievor states she was told by her Administrator that she was not allowed to negotiate an exit date. At the time, the Grievor found it difficult to get confirmation as to whether or not the employee’s last day of work could in fact be negotiable. She was led to believe that her last day of work would in fact be 5 days after approval and whether or not it could be negotiated would be a chance she could not take, and thus chose not to take the chance. The Ministry states that even if the Administrator so advised, he would not have had the authority to determine or have been aware of when the Grievor would have to exit. In addition, the Ministry states that it would not advise in advance as to whether an applicant would have been permitted to negotiate a last day of work that suited the applicant’s needs. At the time, the grievor needed a last day of work to be negotiated for up to 6 months after approval to bridge to retirement. The Grievor states in 2014 the grievor did not need time to bridge. The Grievor’s earliest unreduced pension retirement date was May 20, 2015. At the beginning of 2014 the Grievor had approximately seven (7) weeks’ worth of credits in her bank. Armstrong started TEI on March 28, 2015, and was on salary continuance until her final exit date of June 1, 2015. The grievor states she filed a grievance when she heard of employees at Brookside who were allowed to negotiate a later exit date to bridge their time. The Ministry is not aware of who the employees are or their details. With respect to the colleague identified above (in the first paragraph), who exited the OPS on March 1, 2015, she utilized a combination of credits and salary continuance in order to exit on March 1, 2015. It would be Ministry’s evidence that it is unlikely that the Grievor would have been permitted to negotiate a last day of work that was 6-months after approval. Ana will also say as follows: The former Local rep of Brookside that BYC employees were allowed to use the TEI pay, termination pay, unpaid leave, accumulated credits to bridge to their unreduced pension retirement date with the Employer. He advises that a “few” employees, including YSO P.S., used a combination of the above for periods up to one year and more. He no longer has possession of the records but the Employer would have access to the records of the employees that received TEI and whether they used a combination of the above to reach their unreduced pensionable date. Had Ana been properly advised that she was allowed to negotiate a later exit date she would have negotiated a last day of work for November 20, 2014 and taken the option ii) – continuous salary plus benefits (except STSP and LTIP) for six (6) months, plus lump sum of one (1) week pay per year of continuous service (no maximum); or iii) continuous salary plus benefits (except STSP and LTIP) for the six (6) months, plus further continuation of salary plus benefits (except STSP and LTIP) for the period equivalent to one (1) week pay per year of continuous - 5 - service. If needed she could also have used her vacation credits prior to her exit date and her last day of work could have been early October as she had 7 weeks of credit available. Had she been properly advised and been given the same opportunity as Brookside employees she would have been approved in March, 2014, continued to work another 7 or 8 months and then left with the TEI. c. Michael Gruhl (CSD Nov 15, 1982) applied for TEI on September 29, 2014. His application was not initially approved however it remained on file and his application was granted with an effective date of March 28, 2015. He was made aware of the TEI in Feb/March 2014. He spoke with the Administrator. He was told he did not qualify. He states that he was advised by the Administrator that although he could not access the information it was his understanding that his actual retirement date had to be before the end of June 2015. The grievor continued to ask questions of the Administrator. The answer was always the same that there was no information available and that they won’t tell him anything. The Administrator appeared genuinely frustrated. A coworker (CSD 1980) was granted the TEI in March 2014. The grievor asked the Administrator about this, and was advised that he was called out of the blue about the coworker and that she was allowed to choose a mutually agreeable departure date. The Administrator said he would extend the offer of a mutually agreeable exit to all if they would approve. Her stated the departure date had to be end Dec 2014. The Administrator could not confirm the grievors eligibility for TEI when asked. He stated “they” would not share the information. There were rumours of a second TEI in late 2014. The grievor applied blindly without information. He did not receive a response. He later came to know that Brookside and Cecil Facer had exit dates as late as Dec 2015. The grievor had requested the 6 months salary plus benefits as his retirement date was then 6 months later. The grievors retirement date was July 7, 2015. The Grievor started TEI on March 28, 2015 with salary continuance, and had a final exit date of August 1, 2015. d. Ann Kellner (CSD July 15, 1985) applied for TEI on March 31, 2014. Her application was not initially approved however it remained on file and her application was granted with an effective date of March 28, 2015. She states she withdrew the TEI request based on misinformation / lack of information / clarification provided on September 2, 2014. She was repeatedly told “I don’t know” in response to questions. She asked the Administrator a number of times and he was not able to provide answers. She originally withdrew as she was advised that the offer expired December 31, 2014 and she did not feel financially able by that date. She was later advised by the Union that it did not expire Dec 31. The Ministry did not offer the Grievor TEI at any time prior to March of 2015. - 6 - Kellner states she reapplied for TEI on November 10, 2014, however, the Ministry would not have considered any TEI applications during the period between September and November of 2014 and there was no period of inactivity of the Grievor’s TEI application. She had hoped to negotiate a leave of June 2015 with an exit date of December 15, 2015. Kellner started TEI on March 28, 2015 on a salary continuance with a final exit date of January 1, 2016. When she retired her position was not filled. e. Roman Kotewicz (CSD May 7, 1979) applied for TEI on April 15, 2014. His application was not initially approved however it remained on file and his application was granted with an effective date of March 28, 2015. Kotewicz started his TEI salary continuance on March 28, 2015, with a final exit date of June 1, 2016. Appendix 46 [4] The relevant provisions of Appendix 46 are set out below. I have included the initial provision and noted where it was subsequently amended: 1. All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI). 2. An employee may request in writing voluntary exit from employment with the OPS under the TEI, which request may be approved by the Employer in its discretion [amended to in its “sole” discretion, October 30, 2015]. The Employee’s request will be submitted to the Corporate Employer. The Employer’s approval shall be based on the following considerations: i. At the time that an employee TEI request is being considered, the Employer has plans to reduce positions in the OPSEU bargaining unit; and - 7 - ii. The Employer has determined in its discretion that the employee’s exit from employment supports the transformation of the Ontario Public Service. iii. The Employer will consider whether employees are on the TEI lists when making its decisions [added to revised Memorandum of Agreement, October 30, 2015]. 3. If there is more than one employee eligible to exit under the TEI, the determination of who will exit under the TEI shall be based on seniority. [or] If there is more than one employee eligible to exit under the TEI within the same workplace, the determination of who will exit under the TEI shall be based on seniority [amended, October 30, 2015]. Submissions [5] The Union summarised its understanding of the previously decided cases: 1. The primary focus of decisions released to date has been on the scope of the Employer’s discretion to decide if an employee’s exit would support transformation of the OPS under paragraph 2 of Appendix 46. 2. The Board has determined that the Employer is entitled to determine which factors it considers most relevant in the exercise of its discretion. 3. The Employer has consistently taken the position that in the exercise of its discretion it focused on downsizing and reducing complement. - 8 - 4. The Employer has attempted to achieve its objective by offering a targeted inducement to employees. 5. In reviewing the Employer’s decision, the Board has considered whether departing employees, who requested TEI, were replaced after they left the OPS, with their work maintained and still being performed. 6. Absent evidence of discrimination, bad faith or that a junior employee received TEI in preference to a more senior employee, refusal to approve a request for TEI has been upheld. [6] In this case, the Union argued that the Employer engaged in arbitrary, bad faith and discriminatory decision making by failing to give employees the appropriate information on which they could formalise a request for TEI. In the Union’s submission, there was considerable lack of clarity in the information provided by the local administrator. Had the Grievors been given the right information, they could have made an earlier decision to apply for TEI. [7] Union Counsel acknowledged that there was no case law to support the argument that a bad faith decision by the Employer could be established in this way. The Union also acknowledged that there was no deliberate attempt to mislead or misinform the Grievors. Nonetheless, the Union maintained that the dissemination of bad information or the failure to provide information to individuals who were considering making a TEI request was a significant factor in the decision making process. [8] With respect to Grievor Armstrong, counsel further submitted that she was treated differently than her colleagues at another institution. She confirmed that she would - 9 - have applied for TEI much earlier if she had been provided with information regarding her exit options. Others were permitted to use a combination of their credits, leave and salary continuance to bridge to a full pension, whereas she was told that she could not negotiate her exit date. The grievor consequently delayed submitting her request. [9] The Employer took the position that for all the Grievors, except Ms. Armstrong, the alleged misinformation did not affect the approval date of their request for TEI. They were all approved on the first review of applications after they had submitted their request. The review was conducted once a year, at the end of the fiscal period. None of the Grievors have alleged facts that could support a finding that their request would have been approved earlier if they had been provided with more accurate information. [10] With respect to Grievor Armstrong, counsel for the Employer acknowledged that there was a lack of clarity surrounding when individuals could exit the OPS if their request for TEI was approved. Appendix 46 stipulates that the last day at work shall be 5 working days after the employee receives notice that they have been approved for an early exit or such other time as agreed by the employee and the Employer. In the Employer’s submission, while this introduces a degree of uncertainty, it is ultimately the employee who must decide whether they are willing to risk an earlier exit than they might wish. Grievor Armstrong elected not to take the chance that her exit would interfere with her entitlement to a full pension and therefore she chose to defer her application until there was no doubt of her pension entitlements. The Employer submitted that this did not taint the Employer’s decision to subsequently grant her request for TEI. - 10 - Analysis [11] I have now issued several decisions on the scope of the Employer’s discretion to allow or deny a request for TEI: Koeslag et al., issued January 12, 2016, Vadera, June 28, 2018, Kimmel, November 29, 2018, Anich, August 9, 2019, Klonowski et al., November 7, 2019, Fairley et al., February 12, 2020, Alcock et al, March 2, 2020, Bowman et al., March 9, 2020, Cullen et al., June 15, 2020, Koriscil et al., June 18, 2020 and Heath et al., March 3 2021. [12] I have previously concluded that: i. Appendix 46 confers a broad discretion on the Employer to determine whether granting a request for TEI would support its vision of transformation of the OPS: Koeslag, supra; ii. Despite this broad discretion, the ordinary principles for the proper exercise of discretion apply. Consequently, when the Employer considers requests for TEI, the decision cannot be based on irrelevant considerations or otherwise violate the principles set out in Re Kuyntjes, GSB #513/84 (Verity); Koeslag, supra. iii. While recognising that there may be a number of approaches that the Employer could adopt with respect to transformation of the public service, it remains in the Employer’s discretion to decide whether an ‘employee’s exit from employment supports transformation’ and, in so doing, to determine which factors are relevant to exercising their discretion: Vadera, supra. - 11 - iv. The Employer can offer the TEI as a targeted inducement to encourage employees to voluntarily retire or resign, allowing them to eliminate a position without the need to surplus other employees who wish to remain. However, the Employer is not required to approve all requests for TEI, even where there is evidence of change or transition. The Employer retains the discretion to determine when and how the TEI will be offered: Kimmel, supra and Anich, supra. v. An identical outcome for many grievors does not automatically mean that the Employer improperly exercised their discretion by applying a blanket rule. Where the common denominator among grievors was a rational consideration that was reasonably related to achieving transformation, the discretion was properly exercised: Klonowski, supra. vi. Absent evidence of bad faith or discrimination, the approval of an earlier request for TEI, on its own, is not sufficient to establish an improper exercise of discretion: Koroscil, supra. Similarly, the approval of subsequent requests does not warrant an automatic conclusion that the decision to deny an earlier request was arbitrary or unreasonable. Inevitably, timing matters. A different outcome may result from the timing of an employee’s request for TEI: Heath, supra. [13] All of the cases to date have questioned the propriety of the Employer’s failure to approve a request for TEI. This case is strikingly different. TEI was approved for all of the Grievors and they exited the OPS with enhanced benefits. They assert - 12 - that they delayed their application as a result of the Employer’s inconsistent messaging and poor communication. In the Union’s submission, the Employer’s decision to approve their application was therefore unreasonable, arbitrary or in bad faith. [14] I must admit that I have some difficulty seeing how, in these circumstances, the Employer’s eventual decision to approve the Grievor’s request can be converted into one that is unreasonable, arbitrary or made in bad faith. There was no suggestion that the Employer deliberately misled the Grievors or that it acted in a manner that was intended to induce them to defer submitting their requests. Indeed, an active effort to dissuade them from applying would have been against the Employer’s interest. Their objective of transforming the OPS without involuntary layoffs is best met by having as many people apply for TEI as possible. [15] In any event, applications for TEI were reviewed annually, prior to the end of the fiscal year. Grievors Sostar, Gruhl, Kellnar and Kostewicz were all approved with an effective date of March 2015. The ASF does not establish that misinformation affected when the Employer would have approved their requests: i.Grievor Sostar states that he was advised that he would be considered for the second phase of approvals, he grieved and then received notice that he was approved. He does not say that the misinformation delayed his application. The ASF does confirm that he applied for TEI on April 30, 2014 and that he was approved at the end of that fiscal period, which is the first opportunity that he could have been considered after submitting his request. - 13 - ii.Grievor Gruhl applied for TEI on September 29, 2014, in the middle of the fiscal year. He states that the Administrator gave him wrong or incomplete information but does not say exactly when he spoke to the Administrator or whether it was before or after he applied. At a minimum, these discussions must have taken place after February or March, 2014, which is when the Grievor first learned about TEI. Exiting under the TEI is not a decision that I would expect an employee to make in haste. If the Grievor only learned about the initiative in February or March and then discussed the available options with the Administrator, I find that it is unlikely that he would have had sufficient time to submit a request for TEI that could have been considered in that fiscal cycle even if he had been provided with more accurate information. Moreover, the Grievor’s reference to a co-worker who had been recently approved for TEI suggests that the discussions with the Administrator took place after decisions had already been made for that fiscal year. iii.Grievor Kellnar applied for TEI on March 31, 2014. She subsequently withdrew her application on September 2, 2014, based on misinformation or lack of information; she resubmitted it on November 10, 2014. Her application was therefore reactivated in time for it to be considered for the fiscal year in which it was first filed. The period when her request was withdrawn due to misinformation had no impact on her opportunity to be approved for TEI at the first opportunity. - 14 - iv.Grievor Kostewicz applied for TEI on April 15, 2014. The ASF does not include any information regarding misinformation and there is no basis for me to conclude that the application was delayed as a result. [16] Nor am I persuaded that the Employer acted in bad faith in relation to Grievor Armstrong. Although she delayed her application from one fiscal to the next, I am satisfied that her decision would have remained the same even if she had received accurate information. The Grievor knew precisely how long she had to continue as an employee of the OPS to qualify for an unreduced pension. Ideally, she wanted to negotiate a deferred exit date, using a combination of salary continuance and existing credits to bridge her to a full pension. She sought assurance from the Administrator before submitting her application, however, he advised that she could not negotiate an exit date. She tried to get further clarity but was ultimately left with the impression that she might have to leave the OPS five days after her request for TEI was approved. Given that uncertainty, she elected not to submit her request until she could be confident that she would receive an unreduced pension, regardless of whether she was able to negotiate a delayed exit. [17] The operation of the TEI undoubtedly creates real challenges for some employees who want to apply for this benefit. Appendix 46 provides that an employee must exit the OPS 5 days after their request is approved or at such other date as is mutually agreed. While the TEI Q & A indicates that the last day of work is negotiable and that vacation and CTO can be paid as a leave prior to exiting the OPS, the Employer will not guarantee a negotiated exit date before it approves an individual’s request. Nor will it negotiate before an employee submits their request. Employees who are considering an early exit must therefore make an - 15 - important decision without all of the information that might be critical to their analysis. [18] Unfortunately, this leaves employees like Grievor Armstrong with a very difficult choice. Leaving on very short notice might be a mere inconvenience for some employees. For Grievor Armstrong it could have had significant financial implications. The lack of certainty poses serious challenges for affected employees, but, in the end, it is up to them to decide whether to accept that uncertainty or not. The grievor in this case elected not to run the risk that she might have to leave the OPS before she was eligible for a full pension. While it would have been preferable for her to have received better information from the Administrator, that would not have changed the fundamental drawback of how the program is managed. She would still have no guarantee of an acceptable exit date before she submitted her request. That is exactly the situation she was in when she decided to defer her application until April 1, 2014. [19] I have also considered the argument that Grievor Armstrong was treated differently than employees at another institution. The Union does not allege that these employees were advised in advance of submitting their TEI request that they would be permitted to use their credits or guaranteed a later exit. Again, I am satisfied that although Grievor Armstrong wanted to negotiate a later exit date using her credits, it was the guaranteed right to do so that was material to her decision not to apply before April 1, 2014. Regardless of whether she knew she could use her credits to bridge to an unreduced pension, that knowledge would not change the essential dilemma that there was a risk that her preferred exit date might not be acceptable to the Employer. Indeed, it is the evidence of the - 16 - Employer that it is unlikely that she would been permitted to negotiate an exit date that met her needs. In the circumstances, I am not persuaded that accurate information would have altered the outcome or timing for her exit under the TEI. [20] Having thus considered the evidence and the submissions before me, I find that the Employer properly exercised its discretion and the grievances are dismissed. Dated at Toronto, Ontario this 14th day of April, 2021. “Reva Devins” Reva Devins, Arbitrator