HomeMy WebLinkAbout1985-0138.Joyner.86-03-19SETTLEMENT
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
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Between:
OPSEU (Velma'Joyner) Grievor
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The Crown in Right of Ontario
(Ministry of the Attorney General) Employer
Before:
For the Grievor:
For the Employer:
R. L. Verity, Q.C. - Vice-Chairman
J. McManus - Member
I. J. Cowan - Member
M. Cornish
Counsel Cornish & Associates
Barristers & Solicitors
D. W. Brown, Q.C
Law Officer
Crown Law Office, Civil
Ministry of the Attorney General
Hearing: November 28, 1985
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DECISION
alleges
Collecti
regular
illness
In a Grievance dated March llj 1985, the Grievor
that the Employer violated Articles 41 and 24 of the
ve Agreement in that she was improperly denied her
job on her return to work after an absence due to
The matter proceeded on the basis of an agreed
Statement of Facts with accompanying Exhibits and written
submissions. No oral testimony was presented.
The facts can be summarized as follows. Mrs. Velma
3oyner was employed by the Ministry of the Attorney General on
3anua'ry 1, 1980. From October, 1982 until the commencement of
her absence due to il1nes.s on Qctober 1, 1984, the Grievor was
employed as a Typist 3 - Gl with the Legal Services Branch of
the Ministry of Natural Resources.
Mrs. 3oyner was absent from work from October 1, 1984
to February 28, 1985. Subsequent to October 1, the Grievor
applied for long -term income protection benefits (L.T.1.P.)
under the Collective Agreement, In a letter dated February 5,
1985, the Grievor was advised by the Employer's insurance
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carrier that she was eligible for L.T.I.P. benefits from
November 7, 1984. That letter also advised that coverage
subsequent to February 28, 1985, would be withheld pending
clarification of her ability to return to work because medical
information indicated that she would be able to return to work
by the end of February.
The Grievor sent a registered letter dated February
19, 1985 to 8. V. Giach, Manager Paralegal/Technical Services
of the Ministry’s Legal Services Branch advising that she would
return to work March 1, 1985, on the strength of a medical
certificate to that effect.
The Grievor was notified by letter dated February 28,
1985, from Brock Gra,nt, Executive Co-ordinator, Legal Services
Branch of the~Ministry of the Attorney General, that she was
" I, assigned to a Typist 3 position - "G" note per Articles 41.10
and 24 of the Collective Agreement". Mr. Brock's letter
specified, in part, as follows:
"Accordingly, you have been assigned to the
position of Typist, in the Metro Toronto
Housing Authority Legal Section in the
Legal Branch at the Ministry of Municipal
Affairs.and Housing."
The Grievor took the position under protest. The
Attorney General's Ministry moved to fill the Grievor's
posit
after they received notice of-the Grievor's acceptance on
L. T.I.P.
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ion as Typist 3 - Gl in the Ministry of Natural Reso~urces
On April 24, 1985, Mr. Ciach of the Ministry of
Natural Resources announced the appointment of Mrs. Louise
MacLean to the positibn previously held by the Grievor. ,,
The Grievor seeks an Order returning her to her
former position with the Ministry of Natural Resources.
Louise McLean appeared at the Hearing. She requested
and was ,granted the opportunity to make written submissions.
Subsequently, the Board 'was advised by Mrs. MacLean that she
relinquished that right and would ado.pt the.submissions of
Counsel for the Employer.
The Union argued that the purpose of Article 41.10
was to provide a mechanism whereby the Employer is entitled to
provide an orderly reassignment of an L.T.I.P. employee
returning to work 'pursuant to the provisi0n.s of Article 24,
where the employee's former position had been filled. The
Union acknowledged that the Employer was not required to retain
the position for an L.T.I.P. employee where the Employer
determined that the position was required to be filled for
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business purposes. However, it wars contended that where an
employee was in regular attendance at work, the Employer could
not transfer an employee without consent and without adherence'
.
to the posting provisions of Article 4. Specifically, Ms.
Cornish argued that the Employer's exclusive authority to
assign employees pursuant to Section 18(T) of the Crown
Employees Collective Bargaining Act, is limited by the posting
provisions of Article 4 of the Collective Agreement. Counsel
for the Union contended that It could'not be a reasonable
interpretation of Article 41.10 to circumvent the normal
lateral transfer prohibition. Further, it was argued that when
the Grievor received her notice of assignment to the new
position, she was not a surplus employee within the meaning of
Article 24;
The Employer argued that where an employee is the
r~ecipient of L.T.I.P. benefits, the rights of that Employee
were determined by the combined effect of Articles 41.10 and
24. It was contended that the application of Article 24 did
. .
not depend on the designation of an employee as a surplus
employee. Rather, it was a mandatory provision provided in
Article 41.10 which required the application of the provisions
of Article 24. It was Mr. Brown's contention that there was no
evidence to suggest that the Employer assigned the Grievor as
it did for any improper purpose.
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In this matter, the issue is the propriety of the
Employer's action in transferring the Grievor to another
position, on her return from an illness covered by L.T.I.P.,
when the position she occupied prior to that illness remained
vacant. This issue arises from the conflicting claims of
managerial initiative and fob security. Normally, these
matters are determined by the specific wording of relevant
provisions of a Collective Agreement.
Article 41 of the Co1
"Long Term Income Protection".
lective Agreement is entit 1
That Article is an extens i
ed
ve
,i provision which defines "total disability" and specifies the
extent of the benefits payable and the timing of payments, in
addition'to other matters. Specifically, Article 41.10 reads
as foll'ows:
"41.10 (a) Whe.n an employee who has been
receiving or wasp eligible to
receive L.T.I.P. benefits is able
to return to full-time employment,
the provisions of Article 24 (job
Security), with the exception of
sub-section 24.3.1 shall apply.
(b) An employee who is assigned,
under this section, to a vacancy in
accordance with sub-sections
24.2.1, 24.2.2 or 24.2.3 of Article
24 shall, for a period of six (6)
months, be paid at the same step he
had attained in the salary range of
the classification of the position
he occupied prior to disability.
At the end of that period he shall
be paid at a rate within the salary
,
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range of the classification of the
position to which he has been
assigned."
.Article 24 entitled "3ob Security" is also an .
extensive provision.. Article 24 reads in part as follows:
"24.1 Where a lay-off may occur by reason
of shortage of work or 'funds or the
abolition of a position or other
material change in organization,
the identification of a surplus
employee ,in an administrative
district or unit, institution or
other such work area and the'
subsequent assignment, displacement
or lay-off shall be in accordance
with seniority subject to the
conditions set out in this
Article.”
"24.2.1 Where an employee is identified as
surplus he shall be assigned on the
basis of his seniority to a vacancy
in his ministry within a forty (40)
kilometre radius of his
headquarters provided he is
qualified to perform the work and
the salary maximum of the vacancy
is not greater than three percent
(3%) above nor twenty percent (20%)
below the maximum salary of his
classification, as follows:
- a vacancy which is in the'same
class or position.as the employee's
class or position;
- a vacancy in a class or position
in which the employee has served
during his current term of
continuous service; or
- another vacancy."
"24.2.2 With mutual consent, a surplus
employee shall be assigned to a
vacancy in his ministry beyond a
: .,
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forty (40) kilometre radius of his
headquarters provided he is
qualified to ~perform the work and
the salary maximum of the vacancy
is not greater than three percent
(3%) above nor twenty percent, (20%)
below the maximum salary of his
classification. Relocation
expenses shall be paid in
accordance with the provisions of
the Employer's policy."
"24.2.3 Where an employee has not been
assigned in accordance with
sub-sections 24.2.1 or 24.2.2, he
shall be assigned on the basis of
his seniority to a vacancy in
another ministry within a forty
(40) kilometre radius of his
h,eadquarters provided.he is
qualified to perform.the work and
the salary maximum of the vacancy
is not greater than three percent
(3%). above nor twenty percent (20%)
below the.maximum salary of his
classification, as follows:
- a vacancy which is in the same
class or position as the employee’s
class or position;
- a vacancy in a class or position
in which the employee has served
during his current term of
continuous service; or
- another vacancy."
"24.6.1 An employee who has completed his
probationary period and who is
subject to lay-off as a surplus
employee, shall have the right to
displace an employee who shall be
identified by the Employ.er, in the
following manner and sequence:
'(a) The Employer will identify the
employee with the least seniority
in the same class in which the
surplus employee is presently
working and if such employee ha,s
less seniority than the surplus
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employee he shall be replaced by
the surplus employee provided that
such employee is in the same
ministry and within a forty (40)
ki1ometr.e radius of the
headquarters of the surplus
employee and provided that the
surplus employee is qualified to
perform the work of such employee;
(b) If no employee in the same
class has less seniority than the
surplus employee, the Employer will
identify the employee in the class
in the same class series
immediate,ly below the class in
which the surplus employee is
presently working who has the least
seniority and if he has less
seniority than the surplus
employee, he will be displaced by
the surp,lus employee provided th'at
such employee is in the same
ministry and within a forty (40)
kilometre radius of the
headquarters of the surplus ~ "
employee and provided that the
surplus employee is qualified to
perform the work of such employee;
(cl Failing displacement under'(a)
or (b) the Employer will review the
classesin the same class, series in
descending order until a class is
found in which the employee with
the least seniority in the class
has less seniority than the surplus
employee. In that event such
employee will be displaced by the
surplus employee provided that such
employee is in the same ministry
and within a forty (401 kilometre
radius of the headquarters' of the
surplus employee and provided that
the surplus employee is qualified
to perform the work of such
employee;
Cd) Notwithstanding the above, in
the event that there are one or
more employees in one or more
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classes in another class series in
'which the surplus employee has
served during his current length of
continuous service who have less
seniority than the surplus
employee, the surplus employee will
displace the employee with the
least seniority in the class with
the highest salary maximum (no
greater than the current salary
maximum of the surplus employee's
class) and provided that the
surplus employee has greater
seniority than-the displaced
employee hereunder, provided that
such employee is in the same
ministry and within a forty (401
kilometre radius of the
headquarters of the surplus
employee and provided that the
surplus employee is qualified to
perform the work of such employee."
24.14.1 Where an employee who has had at
least one (I) year of cohtinuous
service is released and his former
positIon or another position for
which he is qualified becomes
vacant in his ministry within one
(11 year after release, notice of
the vacancy shall be forwarded to
the employee at least fourteen (14)
days prior to its being filled and
he shall be appointed to the
vacancy if:
(a) he applies therefor within the
fourteen (14) days, and
(bl no other employee who has
similar qualifications and a
greater. length of continuous
service applies;"
.
In our opinion, Section 41.10 d'oes,not apply on the
agreed statement of facts presented. As indicated previously,
the Grievor advised the employer that she would return to work
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on March 1, 1985. At all relevant times, the Grievor's job was
still available as the Employer had not filled the position in
the interim. If the position had been filled, then clearly
Section 41.10 would have applied.
Section 18(l) of the Crown Employees Collective
Barqaining Act confers upon the Employer the exclusive right,
.
amongst other powers, to manage the assignment of employees.
Section 7 of the Crown Employees Collective Bargaining Act
authorizes the parties to bargain "on terms and conditions of
employment", except for matters that 'are exclusively within the
function of the Employer under Subsection IS(l). The right to
bargain under Section 7 of the Act includes, "transfers" of
employees. In the Collective Agreement, the Parties have
addressed that issue in Article 4, by the requirement of
posting for the filling of vacancies or new positions.
G.S.B. arbitral jurisprudence has stated on numerous
occasions that the Employer cannot unilateraly transfer an . .
employee without violating the posting provisions of Article
4. Vice-Chairman Te.plitsky adopted that rationale in OPSEU
(John Klonowski) and Ministry of Correctional Services, 1618~3
and 17/83 and in so doing relied upon the Decision of the Board
in Rhodes, 384/82. . .
.
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At page 10 of the Rhodes Decision, the jurisdiction
of the Grievance Settlement Board was reviewed as follows:
"The Ministry could not laterally transfer
the arievor. This Board made that clear in
Manson 449181, .and McCuire, 207178. In
these cases;this Board ruled that Article
4 governs the filling of vacancies and
lateral transfers cannot be made as an
exercise of managerial discretion...."
In the Klonowski Decision, Vice-Chairman Teplitsky
stated at p. 3:
“Iwmy opinion, once the employer decided
to fill a position at Metro .West a vacancy
existed for purposes of Article 4.1.
Notional staffing levels are not relevant.
The employer cannot be compelled to fill a
position. When, however, it decides to do
so, .a vacancy exists which then must be
posted.
With respect to Mr. Brown's argument-that
the prior jurisprudence of this Board is
wrong on this point, I find myself in
substantial agreement with the decision in
Rhodes and the reasoning which it
applies..."
In interpreting Article 41.16 it is difficult to
. accept the proposition that the Parties contemplated that a
returning L.T.I.P. employee could be laterally transferred,
without consent, when that employee's job remained vacant.
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A~rticle 24 provides for employee job security where
there.is a lay-off occasioned by shortage of work, shortage of
funds, the abolition of a position, or other organizational
change which results in the identifications of a surplus
employee.
The Board agrees with the Union's position that. the
entire foundation for the application of 24 is absent in the
instant Grievance.
In our opinion, Article 24 app'lies where an
(L.T.I.P.) employee returns to work and her position has been
filled in the interim. Where that scenario has occurred, the
employee would then be afforded the protection of the job
security provisions of Article 24.
In the event thatthis interpretation is incorrect,
then indeed management would be entitled to exercise its
discretion in transferring the Grievor as it did. However, the
Employer's discretion' is not unfettered. Arbitral precedent in
the private sector tends to support the presumption that. the
right to reorganize the work place must not be carried out
arbitrarily, in bad faith, or discriminatorily, and must ,be for
the purposes of business efficiency. Since there was no oral
testimony before the Board, we are unable to say that the
Employer.demonstrated bad faith or exercised discrimination by
its conduct. However, in our opinion, the Employer’s conduct
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appears, in the absence of any explanation and on the limited
facts presented, to be a prima facie example of arbitrary
action. The question remains - what was the justification of
such a decision?
In the result, this Grievance shall succeed and the
. Grievor shall be returned to her former position as Typist 3 -
Gl in the Legal Services Branch of the Ministry of Natural
Resources.
DATED at Brantford, Ontario, this 19th day of March,
A.D., 1986.. .
R, L. Verity, Q.C. - Vice-Chairman
fi pLki&
3. McManus - Member
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I. 3. Cowan - Member