HomeMy WebLinkAbout1983-0560.Peterson.85-04-29560/83
IN THE MATTER OF AN ARBITRAT.ION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Between
Before:
For the.Grievor:
Before
THE GRIEVANCE SETTLEMENT BOARD
For the Employer:
Hearing:
OPSEU (Eric Peterson)
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The Crown in Right of Ontario
(Minis~try of Health)
K. Swan Vice.Chairman
H. Simon Member
G: Griffin Member
Terry Moore
Grievor
Employer
Grievance Officer
Ontario Publi~c Service Employees Union
D. S. Nagel
Staff Relations Division
Civil Service Commission
January,l6, 1984
DECISION .. .'
This grievance came'before‘the Grievance
Sett1emen.t Board w'ith'lan agreed stat,eme~nt of facts. which (,. ,.
is in considerable,deta.il( 1,isting all o'f the circumstances
leading up .to the situatilo,nin.which the Grievor finds
himself in. That statement of facts is as"follows:
lil' . The Grievance Set!lgment Board has jurisdiction
in this matter.
2. The 'Collective'Agreement with respect to Working,
Co.nditions land Em~ployee Benefits, signed on
December 17, 198.2 and cove'ring the period from
January 1, 1982 to 'December lsf 1983 was in effect
~'at al-l times relevant to this, grievance. .
3: dn Aprill29;.1974 Mr. Eric Petersen (the grievor)
was.appointed~;to the civil service.as an accounts
clerk (Clerk 3, General) in the Group ,Enrolment
Section, OHIP, Ministry of' Health.' The grievor
remained in this position untilhe was released
from empldyment (laid off) under S22 (4) of the
Public Service Act,.on.November 12.,,1982.
4. On November 1.9, '1981, the'grievor was 'identified
.as a surplus employee and notified that his position
was to be relocated to. Kingston as part of a planned
relocation of OHIP offices from Toronto to.Kingston.
5. OnMay 28, 1982, the grievor wasp offered the position
of Group Billing Clerk~(Clerk ~3, General) in Kingston,
under Article 24.2.2 of the Collective Agreement.
On May 31 I 1982 the grievorrefused this offer.
6. On September 13, 1982 the grfevor'was notified, in
accordance-with Article 24.10 that he would be laid-
off on November 12, 1982, unless he was assigned to
a position under Article 24 prior to that date.
'7. On September 15, 1982, the grievor notified the
Ministry, under Arti'cle 24.8 ,of his desire to invoke
his rights to displace another employee.
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a. On October 28, 1982. the grievor was assigned. under
Article 24.6.1, to the position of Claims Clerk
(Clerk 3. General) in the Mississauga Oistrici
O.H.I.P. office. The grievor refused this assignment.
9. On November 12. 1982, the grievor was laid-off.
Subsequent to his lay-off. the grievor received a
refund of pension contributions made by him between
1974 and 1982 and severance pay, under Articles 52.3
and 52.4 of the Collective Agreement. In addition,
coverage for the grievor under the various benefit
plans was terminated.
10. On November 13, 1982, the grievor became entitled
to the provisions of Article 24.14 of the Collective
Agreement, for the period November 13, 1982 ,to
November 12. 1983.
11. Ouring the period from November 13, 1982 to November 12.
1983, a number of vacancies occured in the Ministry .
of Health, in Metropolitan Toronto, to which surplus
employees were assigned in accordance with Articles
24.2.1 and 24.2.3. (As of the date of the grievor's
lay-off and during the year fol.lowing there were in
excess of 300 surplus employees in the Metropolitan
Toronto area.) A listing of such positions with a
classification of Clerk 3, General or lower within
the Clerk, General series is attached. The grievor
did not receive notice of these vacancies.
12. During the period from November 13. 1982 to November 12,
1983,,the grievor did receive notices of vacancy for
all vacancies within the Ministry of Health for which
might have been oualified and which were not filled he
by
13. On
9r
surplus
August 1
ievance:
employees assigned under Article 24.2.
5, 1983, the grievor filed the following
"That t he Ministry of Health has failed to
comply with Article 24.14.1 and has not
notified me of vacancies for which I am
qualified."
Settlement Required:
"That I begin to be notified for vacancies in
the Ministry of Health and that my rights
under Article 24.14.1 be extended for a year
so that I may apply for those vacancies which
occur."
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14.
15.
16.
On September 7, 1983,.Mr. .R.~Os~s. Director of the
HumanResources Branch, Ministry of Health, wrote
to Mr. M:Sarra.; Staff Representatives for the, Union
and acting on the grievor's behalf, setting out the
Ministry's position on'the'grievance.' A- copy of
that letter is attached.
The manner in which the Employer administers the
proviysions of Article 24.14.Lis as foljows:
(I), Where a .vacancy is to.be filled and no surplus
employee is assigned under 24.2 or where a
surplus employees refused an' assi.gnment,
clearance to fill 'the vacancy is givenby
,the.Civ,il Service Commission.
(2) 'The Ministry.advertises the vacancy ,in
accordance with Article 4.
(3) A person who has been laid-off from that
Ministry receives notice of all such vacancies
for..a peri~od of.one year followin,g the date
\ of lay-off. Notice is,, received in one of two
ways. -. where the vacancy is advertised in
Topical, he receives notice by way of copy of
Topical. Where the vacancy is,no.t advertised
in Topical, he receives notice directly from
his former MinSstry. He may apply within 14
days, -i-f he wishes to do so.
The.parties are agreed that the issue before the
board is whether it isproper, under~ Article 24, to
assign a surplus employee to a~ vacancy in accordance
with 24.2, without providing a notice of the vacancy
and ,the opportunity to apply therefor ~to persons
such as the grievor who have been l~aid-off and who
might otherwise have been entitled to notice of
vacancy,under 24.14.1."
The letter from Mr. R: Oss referred 'to in
paragraph 1.4 of the statment of facts simply sets out the
employer's position as it was presented to us at the hearing
We ‘therefore find it not necessary .to reproduce t,hat letter
in this award.
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It will be obviou s from t
that the provisions of the Collecti
are those of the job securi ty provi
he statement of facts
ve Agreement here in issue
sions of the Working
Conditions Agreement, which are found in Article 24.
Article 24 is a lenthy provision, which includes a detailed
code for the treatment of employees who are rendered
surplus by a shortage of work or funds, or by the abolition
of the position or a material change in the organization.
It will be of assistance, for the purposes of this award,
to set out the provisions of Art.icle 24 to which reference
will be made hereafter. The provision is as follows:
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In'order to find in the grievor's favour in
this case, it is necessary to find that an empioyee who
has ~been laid-off ("released" in clause 24.14.1 is
equivalent to a lay-off: see clause 24.16) has rights
under clause 24.2.1' which are equivalent to the rights
of an employee newly identified as being surplus under
clause 24.1. The Union argues that employees who have
been laid-off have routinely been treated by the Grievance
Settlement Board as equivalent to surplus employees, that
is to say employees who have been identified as surplus
but have not yet been laid-off. For this proposition,
the Union relies on Simard. 33/82. That case. however,
does not appear on its face to deal with anything except
the appropriate standard of arbitral review of employer
decision on qualifications in circumstances ~where an
employee advances a claim to a job pursuant to clause
24.14.1. It does not pursue the quite different question
which is before us, which relates to the relative priorities
and rights of employees who have been declared surplus
but are still at work, and employees who have been laid-
off and are, in effect. looking for a way back into
Public Service employment through the provisions of clause
24.14.1.
The Employer argued that the answer to this grievance
lies in an analysis of article 24. That article provides,
in great detai
who is identif
24.2.1, 24.2.2
by the Collect
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;for a sequentia~l approach to an employee
ed as surplus to his position; Clauses
and 24.2.3 are the initial response required
ve Agreement. Each of th,ese clauses provides
that an employee "shall~ be assigned on the basis of his
seniority" and none of these provisions has any element
of competition as between the surplus employee'and any
other person. The only tests to be met by the employee is
a threshold test, whether he is qualified to perform the
work. If assignment under these provisions is not possible,
the employee is to be laid-off.
Clause 24.6.1 then provides a detailed code for
bumping by the employee subject to lay-off over another
employee with less seniority. This clause, 1'ike the pro-
visions of clauses 24.2.1, 24.2.2, an,d 24.2.3, does not
contemplate any competition with such other employees, and
relies solely on seniority. Once again, the test of whether
or not a surplus employee.is entitled to bump is whether
that employee is "qualified to perform the work." Where
no relief is possible'under this provision, clause 24.7
provides that the'employee shall be laid-off, subject to
certain entitlements to notice and like matters.
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It is instructive that, after these two procedures
are described in great detail, the Collective Agreement
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provides in clause 24.13 that the terms of article 4,
relating to ,the posting and filling of,vacancies or new
posit~ions,d,o:not apply to the assignment of surplus
employees in accordance with.this article. That provision
appears immediately before,clause 24.,14.1, which is ,the
pro.vision under which the grievor advances his own claim
to'be considered for vacancies. fan obvious, inference.
_ from this placement is.that .the provis,ions ,of, article 4
s apply to vacanc.i,es when ,it i,s, not ,nece,ssary to as,sign
su,rplus employees.. Indeed, that.appears to have been
the decision of the Gri-evance Settlement Board Eco,tt, 62B/BO.
On page 17 of that case, the majority says:
"As for the argument that~the..competition should have
been restricted, seems to be based on the assumption
that the words "other. employee" in 24.14.1 means ot,her
employee who has been declared surplus. .We do not
think that the language will bear that interpretation.
Rather, it refers to any other employee, in its ordinary
significance. If the parties intended it to mean "any
oth~er surplus employee" it would hav,e been a simple
matter to say so in plain words. It follows that.the
employer was entitled to consider the merits of both
surplus employees and certain emplo,yees in the Bargaining
Unit."
Once again, this decision uses the words -",su'rplus
employeetOto describe someone who has ,been laid o'ff. We
cannot think, however; that very much can be made of that
unfortunate choice of-words:.It is obvious from the
award that the Board found that,,once an.employee. was
covered ,by clause 24.14.1. that employee'would. be required to
. enter fhe competition with.other employees and apply for
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the job, although the compensation would not be based upon
the criteria set out in article 4, since there are special
criteria set out in clause 24.14.1. Indeed, the language
of clause 24.14.1, which requires that the notice of the
vacancy be forwarded to the employee at least 14 days
prior to its being filled, appears to contemplate the
possibility that the vacancy will have been posted either
at the same time as notice has been given to the employee,
or shortly thereafter. In any event, the important
factor is that the clause does contemplate a competition
for the position, since clause 24.14.1 (b) requires the
comparison of the qualifications of the laid-off employee
and any other employee who applies.
As we view clause 24.14.1. in light of the
established jurisprudence of the Board in Ecott, once an
employee is laid-off, his right to seek appointment to a
vacancy is a right subject to competitionfrom all other
employees, who will have applied under provisions of
article 4, but based on the special criteria of clause
24.14.1 (b). That those criteria are different is
obvious from the comparison of the words "similar
qualifiations and a greater length of continuing service"
in that clause, with the words "where qualifications and
ability are relatively equal, length of continuous service
shall be a consideration" in clause 4.3. The parties have
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clearly given~ a contractual advantage t,o an employee who
applies fora .vacancy under clause.24.14,.1 over an employee
who applies for a vacancy under.article 4, but that adv.antage
does not conclude.the issue which isbefore us..
. . .
In the present case, the complaint is that
the griever's rights 'to positions which be'came.vacant
were,not.considered either in priority to or concurrent
with the rights of,employees who had subsequently been
identified as. surplus. In our view, this.does not offend the
agreement: As,,we have already pointed out, the
provisions of clauses 24.2.1, 24.2.2,and 24.2.3 do,not
contemplate a,nY competition whatsoever; once the, position
becomes vacan.t, the surplus employee must be considered
for that vacancy,~and the test -of .whether he'is.to be
appointed tom that vacancy .is whether he possesses the basic
qualifications., Similarly, that employee then becomes
eligible to exercise~his seniority rights through bumping
pursuant to clause 24.6.1, where once again the only
test of his right to .bump another employee is the threshoJd.
test of the basic qualifications to perform the work
of that employee. It will be observed that bumping rights
are the second level of relief for employees newly declared
surpJus;. Employees who have already been through the
proc,edure and have been~ laid-off have~no such rights after
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lay-off. It would seem unusual. therefore, if employees
newly declared surplus had to compete with laid-off employees
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for vacancies to which they may be assigned under clauses
24.2.1, 24.2.2 or 24.2.3, but did not need to compete with
anyone when exercising bumping rights.
In other words, we think that the employer's
view of the article,is correct, that it creates sequential
rights for employees whose jobs have become redundant in
three stages. The third stage, and therefore the lowest
in priority, is the one under which the grievor now claims.
The mandatory nature of clauses 24.2.1. 24.2.2 and 24.2.3
appears to be aimed at avoiding any break in employment,
as is the fall-back position in clauses 24.6.1 for bumping
rights. Once.the lay-off has actually occurred, as
it did in the case of the grievor, the employee (or
former employee) is relegated to the third category of
rights, which are subordinate to the first two categories
and are also subject to competition from employees who
might apply for the same vacancy pursuant to article 4.
as has already been decided by the Grievance Settlement
Board in the Ecott case.
In the result, we do not think that the employer
has offended the collective agreement in its application
of article 24 in the case of the grievor. As a consequence,
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therefore, the grievance -must bk dismissed., I:(
Dated ai T,oronto,t.his 29th day.of' 'April, '1985.
/ - YAi- K.jSwan, Vice. Cilpirman,
,,.
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: .: .
cg =q+
G. Griffin;.Member
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I regret that I must dissent from my colleagues in this
case.
In accordance with Article 24 of the Collective Agreement
a surplus employee with more than one year of continuous service has
the option of bumping or being laid off. The Grievor opted for
being laid off.
Article 24.14 reads:
"Where an Employee who has had at least one (1) year
of continuous service is released and his former
position or another position for which he is
qualified becomes vacant in his Ministry within
one (1) year after release, notice of the vacancy
shall be forwarded to the Employee at least
fourteen (14) days prior to it being filled and he
shall be appointed to the vacancy if:
(a) tky;pC;es therefor within fourteen (14)
(b) No other Employee who has similar qualifications
and a greater length of continuous service
applies."
In my view the language here is clear and unambiguous.
Furthermore, there is no'definition in this Article of
"surplus employees"; all references are to Employees. He must
therefore conclude that all Employees with at least one year of
continuous service who are released are entitled to the same
treatment.
The Grievor was laid off on November 12th. 1982.
Between the date of his lay-off and the date of the grievance
on August 15th. 1983 there were a number of vacancies in the Ministry
of Health in Metropolitan Toronto.
In my view the Grievor was entitled to receive notice of
these vacancies, and I would so find.
I would also extend the GrieVOr’S rights to apply for
vacancies for a year from the date of the Release of this award.
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