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HomeMy WebLinkAbout1989-1259.Barnes, Forsythe & Mercer.91-02-28 ONTARIO EMPLOYES DE t._.4 COURONNE CROWN EMPLOYEES DE L 'ONTARIO 180 OUNOAS STREET WEST, SUITE ~100, TORONTO, ONTAR,'O, "~80, RUE DUNOA$ OUEST~ BuREAu ~2100, TORONTO (ONTARIO). MSG 'IZ8 FACSfM.~LE/T~-LC~COPIE : (416,~ 226- 13~;6 1259/89, 1260/89, 1261/89 · IN THE MATTER OF AN ARBITRATION Un4er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Barnes/Forsythe/Mercer) Grievor - an4 - .. The Crown in Right of Ontario (MiniStry of Community & Social Services) Employer BEFORE: N. Dissanayake Vice-Chairperson J. McManus Member D. Daugharty Member FOR THE R. Wells GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C. Osborne EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARING: February 21, 1990 August 7, 8 and 9, 1990 · AWARD The three grievors, Mrs. L.J. Barnes, Mrs. L.E. Mercer and Ms. V. Forsythe, filed a number of grievances arising out of a decision by the Employer to reorganize its staff at the Muskoka Centre in Gravenhurst~ Ontario. During the course of the hearing, Counsel for the grievors advised the Board that he would only be pursuing the grievances alleging a contravention of article 24 filed by each of the three grievors. Accordingly, the other grievances before us are dismissed for want of prosecution. Ms. Marilyn Ashberry, Ms. Ellen Franks, Mr. Paul Jones and Ms. Debbie Stark, were given notice that t~is proceeding may potentially affect their legal rights. However, none of the four appeared at the hearing. Muskoka Centre is a residential facility for the developmentally handicapped. The Centre consisted of a number of departments. The grievors were employed in the Residential Services Dept. as Assistant Residential Supervisors. Their position was classified as, Counsellor 3 Residential life, commonly referred to as RC 3. 3 Prior to the events giving rise to these grievances, the staff in the Residential Services Dept. consisted of a Director, RC 45 (Management positions), RC 3s, RC 2s and RC is. Each RC 4 was responsible for an area which consisted of two living units. The RC 3 was a group leader position, responsible for the work of the RC 2s, who were the primary counsellors, and the RC Is and trainees, who carried out their functions under supervision. Ms. Lorna Parker, Assistant Administrator of Developmental Services, testified that around 1985, the' Centre came unde~ severe criticism by the media' and various interest groups. The essence of the criticism was that there was no coordination in the services and -programmes provided by the various departments of the Centre and that each department was going its "own thing" without being informed of what the other departments were doing with the same resident. The Centre was also ~criticised on the grounds that information with regard to residents was not centralised but scattered throughout the various departments. In response to this criticism, the Centre retained a consultant to review its programme delivery. The consultant's report recommended an inter-disciPlinary 4 approach to programme delivery. The most critical change required by this recommendation was the manner in which the annual conference on each resident was conducted. In the past, each department attended the conference with its own proposal of a programme for the resident for the coming year, without any knowledge of what plans the other departments had for the resident. The proposed co- ordinated approach required experts from all of the departments to get together with ~11 of the information on the resident and in consultation with each other come up with a total plan for the resident. In response to the ~onsulta~t's report, Ms. Parker was'assigned to develop a system of service coordination. A Developmental Division Management Team was set up consisting of the department heads. After much study and consultation, this team decided that what was required was a separate department solely responsible for service co-ordination, and not involved in any service delivery. It was felt that a department responsible for service delivery could not audit its own performance, but that an independent service co-ordination department would be able to monitor the service delivery of all departments objectively, thereby assuring a measure of quality control. With this objective in mind, the Team developed a proposal, which was complete~ in September, 1988 and 5 approved for implementation. One of the key proposals was the creation of a Service Coordination Dept. and the creation of ten Service-Coordinator ("SC") positions. Shortly thereafter, MS- Gilda Evely was appointed Manager of Service Coordination. Ms. Parker met with the RC 3s on several occasions. They were. informed of the organizational change, the creation of a Service Coordination Dept. and that they would be eligible to apply for the SC positions. The evidence reveals that the employer expected to be able to create the required SC positions, without any incumbent RC 3 losing his or her job. At the time there were five RC 3 positions vacant. The Employer's plan was to convert four of these to SC positions and post them. It is clear that the management expected or at least hoped, that these SC positions would be filled by RC 3s. Then the plan was to convert the RC 3 positions vacated by the successful applicants into SC positions and fill them as SC positions.' Through this process it was hoped that the required number of SC positions would be filled without any incumbent losing employment. As per plan, the first four SC positions were posted and filled. The SC positions had the same classification as the RC 3 position. Only one RC 3 was among the 6 successful candidates. The three grievor's participated in the competition but were not successful. Subsequently, four more RC 3 positions were converted and two were posted and filled as SC positions. At the time of the hearing, the only incumbent RC 3s were the three grievors. The Employer was in the process of filling two additional RC 3 positions. The evidence is that the three grievor's still had duties'to perform as RC 3 although they had lost some responsibilities to the SCs, mainly those duties relating to resident conferences. The evidence also indicates that the demand for RC 3s had gradually decreased as a result of the organizational change under~ake~, and the general down-sizing of the living units and the policy of placing more residents in the community. However, the evidence is clear that as of the date of hearing the grievor's RC 3 positions were secure. Article 24 commences 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 7 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. And it continues with a detailed procedure designed to relocate the surplus employee within the public service. The issue for the Board to determine is whether at the time of the grievances, circumstances existed as would trigger the process envisaged in article 24 and if so, whether the grievors were entitled to be assigned to the SC positions in accordance with their seniority. The triggering event for the application of article 24.1 is "where a lay-off may occur ...". The Board had occasion to consider the meaning of this phrase in R_ge OPSEU (Union Grievance), 2507/B6 (Samuels) at p. S: When does Article 24 commence operation? Must there be a 'formal "identification" of surplus employees before the process begins? 8 In our view, Article 24 is essentially self-executing. Article 24.1 commences "Where a lay-off may occur ...". This is the triggering event. The process established in Article 24 being when a lay-off "may occur". What does "may occur" mean? Given the elaborate and comprehensive machinery provided in Article 24, the parties could not have intended to start up the machinery if there Was only a vague possibility that an employee~ might be laid off. In our view, there has to be a clear likelihood that the lay-off will occur before an affected employee can take advantage_of Article 24. But once the triggering event has taken place, once "a lay-off may occur", Article 24 is invoked. (Emphasis added) · Was there "a clear likelihood" at the time these grievances were filed, that the grievors would have been laid off? The Union's position essentially is that, while the Employer hoped'that it would not be necessary to lay-off any RC 3, that hope was dependent solely on an assumption that RC 3s would apply for and win SC positions. Counsel points to the following statement at p. 12 of the Management Committee's proposal. " Assuming that the existing RC IIIs are interested in the Service Co-ordinator positions, and that they are successful in the competition process, no jobs with incumbents will have to be eliminated" Counsel argues that implied in this statement is the converse, that if RC 3s do not show interest or are not successful in the competition, jobs with incumbents will be eliminated. In addition, Counsel relies on the evidence of Mrs. Mercer, who testified that early in the process, Ms. Parker informed at a meeting that there will not be any RC 3s left once the reorganization was completel Counsel submits that while subsequent events ensured the security of the grievors' positions, at the time of the grievances they were subject to lay off, and that at that point article.24 should have been invoked. The whole case depends on whether at the relevant time, there was "a real likelihood" that the grievors' RC 3 positions would be abolished. In this regard, we found Ms. Parker's evidence to be very credible and convincing. She admitted that management was heavily relying on its assumption that the SC positions would be' filled by a sufficient number of RC 3s that, they would not be faced with any surplus employees. She was a co- author of the draft proposal. She explained that the statement at p.12 relied upon by the Union was included solely as an assurance to the RC 3s that their jobs were not in jeopardy, and not because the Employer at any 10 time contemplated abolition of positions with incumbents. She vehemently denied Mrs. Mercer's claim that she made a statement to the effect that RC 3s would no longer be employed after the re-organization. On the contrary, Ms. Parker's evidence is that she always assured employees that no jobs with incumbents will be lost. She testified that management was very confident that RC 3s will be appointed to the SC positions in sufficient numbers in order to avoid any surplus situation. Management may have been somewhat reckless in relyiDg on such an assumption. However, we are satisfied that they ~id. In our view, the result was that management did not turn their mind at the time as to how they would deal with the eventuality of their assumption not materializing. Nevertheless, we are satisfied that abolition of RC 3 positions with incumbents was not an option the management entertained. Ms. Parker testified that if contrary to the management's assumption, RC 3s did not win the SC positions, management "would have had to look elsewhere". There is no doubt that the grievors had concerns'about their job security once the SC system was in place. It is likely that from the discussions with Ms. Parker, Mrs. Mercer came to a conclusion that no RC 11 3s will be employed in the future. However, we are satisfied that Ms. Parker did not make such a statement. We see it as very unlikely, in that Mrs. Barnes testified ~that she understood Ms. Parker's posit~on differently. Ms. Barnes stated that "when we stated our concern as to what will happen to us after all the SC's are appointed, she said we will still be there to assist RC 4s in daily living and care of our units".~ Based on all of the evidence, we have concluded that at the relevant time.management did not have as an option the abolition of any RC 3 positions with incumbents, although it was willing to gamble ~n the assumption that it will not hawe to cross that bridge. In the circumstances, while the grievors may subjectively have entertained serious concerns about the security of their jobs, it cannot be said objectively that the grievors were facing a real likelihood of lay- off. It follows that article 24 was not triggered as would entitle the grievors to rights under it. For the foregoing reasons these grievances are ~dismissed. 12 Dated this 28thday of February. 1991 at Hamilton, Ontario Nimal V. Dissanayake Vice-Chairperson J. McManus Member