Loading...
HomeMy WebLinkAbout1990-0249.Deschenes.95-01-04 ! ". , .. ( ;~ ., ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L'ONTAfllO 'I IIi GRIEVANCE .. COMMISSION DE '- , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STRtEr WEST, SVITE; 2100, TORONTO, ONTARIO.. MSO lZ8 TEl.EPHONEIT€LÉPHONE: (416) 326- 1388 180, RuE DUNDAS OUEST, BUREAU 2100, TORONro (ONTARIO). MSO lZ8 FACS/MILEITIÔU::COPtE: (416) 326- 1396 GSB # 249/90, 2245/91, 2456/91, 2547/91, 2595/91, 2674/91, 2810/91 3133/91, 861/92 OPSEU # REV-U229, 91F895-91F898, 92B131, 92B190-92B192, 92B234-92B235, 92B313, 92B473, 92A318, 92B944 IN THE MATTER OF AN ARBITRATION -' Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Deschenes') Grievor - and - -'. The Crown in g~ght of Ontario (Ministry'of Revenue) Employer- I BEFORE: J. Samuels Vice-Chairperson T. Thomson Member F. Collict Member f FOR THE S. Goudge : GRIEVOR Counsel Gowling, strathy & Henderson Barristers & Solicitors , I FOR THE L. Marvy EMPtoY'ER Counsel I Legal services Branch Management Board Secretariat -. I HEARING June 3, 1993 December 12, 1994 . . " 2 :~ The issue raised by the individual grievance before us started life as a Union policy grievance. The Union grieved' that the Ministry violated Article 4.5 of the collective agreement by failing to pay relocation expenses for successful candidates chosen to fill posted vacancies. The grievance I concerned a number of job postings 'where the area of search was said to be limited to candidates "within' commuting distance" of the office involved~ but where employees who really lived farther afield applied~ were i successful~ and then relocated to be near their new offices. In these circumstances, the Ministry refused to pay relocation expenses on the ground that. by applying for the jobs. the successful candidates had self~ described themselves as already living "within commuting distanceli at the time of application. Our hearing into the Union grievance took two days in 1991, and we heard evidence and argument concerning a representative grievor, Mr. N. Quenneville. In our first award, 'dated July 31~ 1991, we ruled that he was entitled to be compensated for his relocation expenses. The critical reasoning in this first award went as follows: Arti c1 e 4.5 of the collective agreement says that IiRelocation expenses shall be paid . , , I in accordance with the provisions of the Employer's policy". The policy referred to is found in the Management Board of Cabinet Policy Manual. The provisions of the policy make it clear that the directive applies to a move which falls within the definitions established in the policy. If a move is of the type covered by these definitions~ then the terms of the policy I , apply. There are no further conditions to be met which are outside the terms of the policy. Mr. Quenneville's move fit within the policy's , I definitions. In 1993, the parties asked us to reconvene to deal with a difference concerning the identification of the employees who were covered by our I' 0, . 1,' 3 ; '\ first award. We issued a second ~ward on June 24, 1993. The reasoning in this second award is not relevant to the grievance now put before us, This third award deals with the p~ticular claim of Mr. L. Deschênes (GSB 2547/91). He claims compen"sation under that part of the policy which deals with the ltEnhanced Relocation Plan" (ERP). He moved from Pembroke to Kingston in 1990, after succeeding in a competition, and had to pay almost double for housing. He wants compensation for this increased cost under the ERP. I As we said in our first award, Article 4.5 of the collective agreement entitles ì?e employee to relocation expenses according to the Employer's policy. The "Employer's polici' is found in the Management Board of Cabinet Policy Manual. The Manual contains a directive governing Relocation Expenses. This Directive is the document which is incorporated into the collective agreement according to Article 4.5 of the agreement. The Union suggested , , to us that we should consider instead the Ministry of Revenue's own internal financial procedure concerning the payment of the ERP. We I found no significant difference in this procedure from the Directive. But the central point is that the collective agreement is between the Union and the "Employerlt (Management Board of Cabinet), not between the Union , - , and individual ministries. The provision in the collective agreement I governing relocation expenses is the same provision for all ministries. When the collective agreement refers to "the Employer's policy", it is referring to a policy which applies across all ministries. This policy is found in the Directive issued by Management Board of Cabinet. The, Directive says that one of the Purposes of the policy on Relocation Expenses is "to delegate to deputy heads sole authority to . . " 4 \ approve the application of the Ontario government's Enhanced Relocation Plan within the terms of this directive". The Directive goes on to speak of the Application and Scope of the policy, and says that , The Enhanced Relocation Plan is a program applícable when it is considered necessary for a ministry to provide an incentive to an employee who it wishes to attract to an area where housing costs are generally higher than at the employee's .' . current location. , . With respect to the Principles of the policy, the Directive says of the ERP: The extent of the financial assistance that may be provided under the Enhanced Relocation Plan is based on the "housing-cost differentiallt-that is, the difference between the actual costs of the former and the new accommodation, or between the actual cost of the new accommodation and the value of comparable accorriÎnodation at the former location. ....... The deputy head has discretion to offer the' employee any portion of the housing-cost differential up to the maximum level permissible. .. .. .. .. ~ ~ With respect to the Mandatory Requirements of the policy, the Directive deals with the ERP in Part 5. This Part says: The Enhanced relocation Plan is applicable at the sole discretion of the deputy head and the authority to approve its application must not be I delegated. I . . ,~ 5 t The plan must only be applied when, in the opinion of the deputy head, it is necessary in order to encourage an employment candidate to accept a position. And then Part 5 goes on to discuss the amounts that may be offered under the ERP. In our view, it is apparent that the ERP is not a right granted to employees. The ERP is not a necessary part of the relocation expenses of any particular employee. Rather, the ERP is available to a deputy head who is unable to fill a position without offering some incentive over and above the job itself and the usual relocation expenses. The Directive gives the deputy head some ability to offer an appropriate incentive, if one is needed. In Mr. Deschênes' case, no incentive was needed. In fact, Mr. Deschênes applied for and was successful in obtaining the position in Kingston at a time when the MinistrY was not paying relocation expenses at all. He was willing to move to Kingston without any incentive other than the position itself. The payment of relocation expenses only became available after our first award in 1991, a year after Mr. Deschênes' moved to Kingston. Following our first award, the Ministry paid Mr. Deschênes' relocation expenses, but refused to consider his claim to compensation under the ERP. Given that the ERP is an incentive plan, it would only become relevant where the deputy head felt it necessary to offer a "housing-cost differential" in order' to attract suitable candidates to a position. Necessarily, such an offer must be made before the candidate accepts a position. The essence of an incentive is that it is an inducement to enter the arrangement in the first place. In the case of posted bargaining-unit positions, the offec()f a "housing-cost differential" may be made in the , - . . 'I . i 6 posting itself where the deputy head decides that this is necessary to attract suitable candidates. If a candidate is willing to accept a position without an incentive, there is no need whatsoever for the deputy head to consider whether or not to offer an incentive. The Union argued that the deputy head failed totally to exercise his/her discretion in this casè, and therefore there was a breach of the collective agreement. It was suggested 'that, simply because Mr. Deschênes' housing differential was so dramatic, the deputy head ought to have considered making an offer under the ERP. ' In our view, there was never any need to exercise the discretion in this case, because the deputy head was ,never faced with a situation where an incentive had to be considered. Put metaphorically, the need for an incentive is the "horse" here, and the exercise of the discretion is the "cart". And the horse goes before the cart. For these reasons, we dismiss Mr. Deschênes' grievance. Done at London, Ontario, this 4th . day of January 1995. ~-:". .~,. --¡ÇJ24 . . ~ uels, Vice-Chairperson '&' ~; :AI _<~-< )_ I. Thomson, Member '" ø 9f!EM~ F. Collict, Member -