HomeMy WebLinkAbout1990-1759.Laurin&Joly.91-10-30 ONTARIO EMPL OY~:S DE LA COURONNE
CROWN EMPt. O YEES DE L 'ONTARIO
GRIEVANCE C,OMMISSION DE ...
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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1759/90, 1760/90
IN THE MATTER OF ANARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ~CT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Laurin/Joly)
- and-
The Crown in Right of Ontario
(Ministry of Tourism &.Recreation)
Employer
BEFORE: R. Verity Vice-Chairperson
J. Carruthers Member
D. Clark Member
FOR THE R. Healey
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE M. Fleishman
EMPLOYER Law Officer
Crown Law Office Civil .-
Ministry.of the Attorney General
HEkRING Febln/ary 14, 1991
May 25, 1991
DECISION
in this matter, Mona Joly and Ronald Laurin filed grievances
on August 24, 1990 alleging improper denial of displacement rights
· under Article 24.6.1 of the collective agreement.
The arbitration proceeded with the introduction of exhibits
followed by oral submissions. Two issues are said to arise in this
matter; namely,
(1) the location of the grievors' headquarters at the time
. they were declared surplus, and
(2) whether Mr. Laurin was subject to lay-off within the
meaning of Article 24.
The panel was requested to determine the first issue only and
to remain seized on the Laurin grievance.
The facts are not in dispute. Until May 22, 1990 both
grievors worked as Travel Consultants at the Ontario Travel
Information Centre on Highway #417 near Hawkesbury, Ontario. "The
Hawkesbury Travel Centre", as it was calied, is a roadside facility
which is operational year round to dispense travel and tourism
information. The facility is owned by the Ministry of Government
Services and operated by the Ministry of. Tourism and Recreation.
Apparently there are similar travel centres located near Lancaster
and Cornwall employing two Travel Consultants at each location.
Ail three travel centres are supervised by Patsy McAllister.
On May 22, 1990 the Hawkesbury Travel Centre was destroyed by -
fire. On May 24, Ms. Joly received verbal and written instructions
from her supervisor to report for work at the Lancaster Travel
Centre effective May 28, 1990. Mr. Laurin was given similar
instructions both orally and in writing by Ms. McAllister to report
for work' on the same date at the Cornwall Travel Centre. Both
employees were advised in writing that they would be reimbursed for
mileage'for travelling~to and from the assigned work l~cations and
for eligible meal expenses. Ms. Joly and Mr. Laurin live at
L'Orignal, Ontario which is 10 kilometres west of Hawkesbury. The
grievors commenced work as Travel Consultants on May 28 in
Lancaster and Cornwall respectively.
On July 11, both grievors attended a meeting in Ottawa
convened by the Employer. The grievors were then advised by Anne
McCall Simms, Director Tourism Marketing Branch and by Martha
Lowrie, Acting Manager Customer Sales and Service, that the
Hawkesbury facility would not be replaced due to budget constraints
and that the Ministry would change the operation from a full-time
to a seasonal operation commencing the summer of 1991. At the
meeting, the grievors were given identical letters under the
signature of the Deputy Minister of Tourism and Recreation which
read as follows:
AS you know, the destruction of the Hawkesbury Travel
Centre has caused the Ministry to re-evaluate service in
this area. The Ministry has decided to change the
operation of the Centre from full-time to seasonal. We
are anticipating seasonal operation to begin in the
summer of 1991.
~s a result of this decision, I regret to advise that
· your position of Travel Consultant, Hawkesbury,
classified as a Travel Counsellor 3, in the Tourism
Marketing Branch, will no longer be required.
Accordingly, as per Article 24 of the Collective
Agreement, I am declaring you surplus to the needs of the
organization effective immediately. Every effort will be
made to assist you in securing continued employment in
the Ontario Public Service. If you are unsuccessful in
obtaining alternate employment, you will be laid off on
January 11, 1991.
If you have any questions regarding your. entitlements,~
please contact Margaret Hobbs, Human Resources Officer,
at (416)' 963-3593.
Yours truly,
D. Blair Tully
Deputy Minister
Apparently at the meeting of July 11, the grievors were given
the choice of working at their respective locations until January
11, 1991 or receiving payment with no work until that date.
Following the meeting, both griev~s gave written notification
of their intention to continue working. In addition, on July 12,
1990 the grievors gave written notification of their intention to
exercise displacement rights under Article 24 of the collective
agreement. However, on July 12, 1990, Martha Lowrie advised the
grievors in writing that effective July 16, neither grievor would
be required to report for work. The last day worked for both Ms.
Joly and Mr. Laurin was Friday, July 13. Subsequently the grievers
were offered Travel Counsellor 3 vacancy positions in Toronto (for
Mr. Laurin on August 7 and for Ms. Joly on September 20). Neither
· offer was accepted.
Mr. Laurin subsequently entered a competition for a position
as Clerk-Typist (Classification OAG 8) at Alfred College. He was
the successful applicant and began work at the College (Ministry of
Agriculture and Food) on November 14, 1990. His seniority date
with the Ministry is September.23, 198~'and ~rior to that time he
worked with the Ministry of Community'and Social Services 'for some
nine years.
Ms. Joly. began work as a Travel Consultant with the Ministry
on Novembe~ 12, 1985. She was unsuccessful in securing alternate
employment and was laid-off on January 11, 1990.
The grievers seek to displace two junior employees who work as
Travel Consultants at the Lancaster Travel Centre - Lucy Rondeau
who has a seniority date of January 2.9, 1991 and Debra Baker with
a seniority date of December 1, 1986.
The dispute focuses on the parties differing interpretations
of the word "headquarters" as contained in Article 24.6.1. Article
24 reads in its entirety as follows:
ARTICLE 24 - JOB SECURITY
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
.~.~a~' ? ~.. 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
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 ha~' 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 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 an a class or position in which the
employee has served during his current term of
continuous service; or
- another vacancy.
24.2.4 Effective March 16, 1987, with mutual consent, a
surplus employee who has not been assigned in
accordance with subsections 24.2.1, 24.2.2 or
24.2.3 shall be assigned to a vacancy in another
ministry beyond 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. Relocation expenses
-'-' ~ ¥%~ ~'"'~ shall be paid in accordance with the provisions of
the Employer's 'policy.
24.3~ Where an employee is assigned to a vacancy in
accordance with sub-sections 24.2.1, 24.2.2, 24.2.3
--- or 24.2.4, Section 5.4 of Article 5 (Pay
"~ -' Administration) shall apply.
24.4 An employee who does not attend a placement
interview when requested by the Employer or who
does not accept .an assignment in accordance with
sub-sections 24.2.1 or 24.2.3 shall be laid off and
the provisions of Sections 24.5, 24.6 and 24.10
shall not apply.
24.5 Where an employee has not been assigned to a
vacancy in accordance with sub-sections 24.2.1,
24.2.2, 24.2.3 or 24.2.4, he shall be subject to
lay-off in accordance with the following applicable
sections.
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 Employer 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 has less seniority than the
surplus employee, he shall be displaced by the
surplus employee provided that 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;
(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 immediately
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 surplus employee provided that 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;
(c) Failing displacement under (a) or (b) the
Employer wil-1 review the classes in 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 (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;
(d) Notwithstanding the above, in the event that
there are one or more employees in one or mor~
classes in another class series in which the
surplus employee has served during his current
lengt~ 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 (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.
.~ 24.6.2 Any displacement shall be limited to a class which
has a salary maximum no greater than the maximum of
the surplus employee's current class and Section
5.4 of Article 5 (Pay Administration) shall not
· apply.
24.7 The employee must indicate in writing to the
Director of Human Resources his intention to
displace another employee as far in advance as
possible but not later than two (2) weeks~ in
advance of his date of lay-off. If he does not
indicate his intent to displace another employee
within this period, he shall be deemed to have
opted to be laid off and the provisions of Section
'24.10 shall not apply.
· '~24.8 ~ Where the employee chooses not to exercise his
rights under Section 24,6, he shall be laid off and
the provisions of Section 24.10 shall not apply.
24.9 An employee who is displaced by an employee who
exercises his right under Section 24.6 shall be
declared surplus and the provisions of Article 24
shall apply.
24.10 1 Effective March 16, 1987, where a surplus employee
has not been assigned to a vacancy in accordance
with Section 24.2 and no displacement is possible
under Section 24.6 and the employee is within the
two (2) week period prior to his date of lay-off,
he shall be assigned on a retraining basis to a
vacancy in his ministry within a forty (40)
kilometre radius of his headquarters, subject to
the following conditions:
(a) Such assignments shall be made on the basis of
seniority;
(b) Such assignments shall be made during the two
(2) week period prior to the employee's date
of lay-off, where, based on information in its
records or as provided by the Union or the
surplus employee, the ministry determines that
the employee has transferable skills which
would enable him to meet the normal
requirements of the wOrk of the vacancy within
a maximum retraining period of twenty-five
(25) days;
10
(c) Such assignments shall be limited to a class
which has a salary maximum no greater than the
maximum of the surplus employee's current
class and Section 5.4 of Article 5 (Pay
Administration) shall not apply;
(d) Where a surplus employee is assigned to a
vacancy in accordance with 24.10.1 his date of
lay-off shall be extended to accommodate the
retraining period, up to a maximum of twenty-
five (25) days;
(e) A surplus employee who has been assigned to a
vacancy in accordance with 24.i0.i.shali have
no rights under Sections 24.2 or 24.6
following his original date of lay-off;
~ (f) If, at the end of the retraining period, the
surplus employee meets the normal requirements
of the vacancy to which he has been assigned,
.~.~. _ he shall be confirmed in that vacancy;
(g) If, at the end of the retraining period, the
surplus employee does not meet the normal
requirements of the vacancy to which he has
been assigned, he shall be laid off without
any additional notice under Section 24.'11.
24.10.2 In 24.10.2 (b) and (d), days shall include all days
exclusive of Saturdays, Sundays and designated
holidays.
24.10.3 A surplus employee who does not accept an
assignment in accordance with 24.10.1 shall be laid
off.
24.10.4 Where an employee has.been assigned under 24.10..1
tO a vacancy in a class with a salary maximum
lower than the salary maximum of the class he held
immediately prior to such assignment and
subsequently he is laid off in accordance with
24.10.1(g), any termination payments to which he
may be entitled under Article 53 (Termination
Payments) shall be based on the salary he was
receiving immediately prior to the assignment under
24.10.1.
24.10.5 The assignment of a surplus employee to a vacancy
in accordance with Section 24.2 shall have priority
over an assignment under 24.10.1.
24.11 An employee shall receive a notice of lay-off or
pay in lieu thereof as follows:
(a) two (2) weeks' notice if his period of
employment is less than three (3) years;
(b) three (3) weeks' notice if his period of
employment is three (3) years or more but less
than four (4) years;
...... (c) four (4) weeks' notice if his period of
employment is four (4) years or more but less
than five (5) years;
(d) six (6) weeks' notice if his period of
employment is five (5) years or more but less
than seven (7) years;
(e) seven (7) weeks' notice if his period Of
employment is seven (7) years or more but less
than eight (8) years; ~-.
(f) eight (8) weeks' notice if his period of
employment is eight (8) years or more but less
than ten (10) years;
(g) twelve (12) weeks' notice if his period of
employment is ten (10) years or more;
with copies of such notice to the Human Resources
Secretariat and the Union.
24.12 An assignment under this Article shall not be
considered a promotion or a demotion.
24.13 Where an employee has been identified as surplus,
reasonable time off with no loss of pay and with no
loss of credits shall be granted to attend
scheduled interviews for positions within the
public service, provided that the time off does not
unduly interfere with operating requirements.
24.14.1 Effective March 16, 1987, where a person who, prior
to release, had completed at least one (1) year of
continuous service, has been released and a
position becomes vacant in his' former ministry
within a forty (40) kilometre radius of his former
headquarters within one (1) year after his release,
notice of the vacancy shall be forwarded to the
person at least fourteen (14) days prior to the
closing date of the competition and he shall be
appointed to the vacancy'if:
(a) he applies therefor within the fourteen '(14)
days, and
(b) he is qualified to perform the required
duties, and
~ (c) -no other person who is qualified--to perform
the required duties and who has a greater
· length of continuous service applies, for the
vacancy pursuant to this subsection.
24.14.2 Appointment under 24.14.1 shall be limited to a
class which has a salary maximum no greater than
the maximum of the class the person held when
identified as a surplus employee and Section 5.4 of
Article 5 (Pay Administration) shall not apply.
. 24.14.3 A person shall lose his rights under 24.14.1 when:
(a) he does not attend a placement interview when
requested by the Employer; or,
(b) he does not accept an appointment in
accordance with 24.14.1; or,
- (c) having accepted an appointment in accordance
with 24.14.1, he fails to report for duty
within two (2) weeks of receiving written
notice of the appointment.
24.14.4 The assignment of a surplus e~ployee to a'vacancy
in accordance with Sections 24.2 or 24.10 shall
have priority over an appointment under 24.14.1.
24.14.5 Where a person whO has been released is reappointed
under this Article to the same position or a
position having the same classification as the
position which he occupied immediately prior to his
release, he shall be reappointed at a rate within
the salary range applicable to the position
equivalent to the rate at which he was paid
immediately prior to hiS. release.
24.14.6 Where a person who has been released is appointed
under this Article to a position in a
classification that is not the same as the
classification of the position which he occupied
immediately prior to his release, he shall be
appointed at a rate within the salary range
applicable to the position commensurate with his
qualifications'and experience, including previous
relevant'public service.
24.15 It is understood that when it is necessary to
assign surplus employees or appoint persons in
accordance with this Article, the provisions of
Article 4 (Posting and Filling of Vacancies or New
Positions) shall not apply.
24.16.1 Effective March 16, 1987, where it is necessary to
release an employee who has completed his
probationary period, because of the introduction of
technological change in equipment or methods of
operation, at least three (3) months' notice in
advance of the change shall be given to the
employee affected and to the Union.
24.16.2 The mat{er will then be referred to the joint
consultation committee of the parties to discuss
and to attempt to resolve the problem with relation
to the reallocation and retraining of the affected
employees with a view-to minimizing the effects of
the Employer action required to be taken.
24.17 For purposes of Article 24 lay-off means the same
as release as per Section 22(4) of The Public
Service Act, Revised Statutes of Ontario, 1980,
Chapter 418.
24.18 Article 24 shall apply to probationary employees in
accordance with the terms of the Minutes of
Settlement as set out in Appendix 10.'
The Union contends that there is a short answer to the first
issue in that the grievors should never have been declared surplus
and subject to lay-off under Article 24.1 because they were not the
most junior employees "in an administrative district or unit,
institution or other such work area". The Union acknowledged that
the Ministry properly applied Article 24.1 in these circumstances
but chose the wrong employees to be identified as surplus
employees. In the alternative, the Union argued that the grievors
are entitled to exercise displacement rights under Article 24.6.1
because their real headquarters, in the sense of where they worked
after the fire, was Lancaster and Cornwall respectively. Mr.
Healey contended that there was no provision in Article 24 for
temporary headquarters and that the word must be given its natural
meaning in the absence of any definition in the Article. The Union
· cited 'the Decision of Vice-Chairperson Samuels in OPSEU (BeaCon)
and Ministry of Natural Resources, 1392/88.
The Employer argued that Hawkesbury was and remained the
grievors' headquarters at all relevant times and that they were on
~.temporary assignment following the fire as evidenced by
reimbursement for mileage and meal allowance. The thrust of Mr.
Fle~shman's position was that displacement rights under Article
24.6.1 did not arise because the Ministry was unable to identify a
junior employee within a forty kilometre radius of Hawkesbury.
Further, he contended that the grievors were estopped from saying
that their headquarters were Lancaster and Cornwall by the
acceptance of reimbursement for expenses. Regarding Mr. Laurin,
the Employer's position is that he no longer has displacement
rights by virtue of having accepted another position. The Employer
relied upon the following authorities: OPSEU (Hayford) and
Ministry of 'Correctional Services, 1398/87 (Kates); and ODSEU
(Adrianne Read et al) and Ministry of Health, 1548/89, 2015/89
(Gorsky).
We are not persuaded as to the merits of the Union's "short
answer" to the interpretation of Article 24.1. In our view, a
"material change in organization" within the meaning of 24.1 arises
in this case not in the context of an administrative district or
unit but rather as a single or individual office.
Article 24 has been generally interpreted in a number of
G.S.B. Decisions. For example, the Article Was considered in
general terms in the recent decision of Arbitrator Gorsky in OPSEU
~Adrianne Read et al) and Ministry of Health, supra. The rationale
for Article~ 24 is to provide a measure of job security for
employees who may face lay-off by reason of shortage of work or
funds or abolition of a position or other material change in
organization. Following extensive procedures for assignment
purposes, Article 24.6.1 grants displacement rights to an employee
"who has completed his probationary period"and "who is subject to
lay-off as a surplus employee". Under Article 24.6.1(a) the
Employer is required to identify and displace a junior employee in
the same class in which the surplus employee is working "provided
that such employee is in the same Ministry and within a forty (40)
kilometre radius of the headquarters of the surplus employee"
~ However, in %he matter before us, it would appear that a
determination as the grievors ' headquarters will establish
displacement rights under Article 24.6.1. In that regard, we would
adopt the rationale of Mr. Samuels in Beaton and Ministry of
Natural Resources, supra, where he states as pp. 5-6:
The collective agreement contemplates two types~ of
"headquarters" -- a real headquarters, that is the place where
the employee actually works; and a "designated" headquarters,
that is a place named as a headquarters for an employee who
does not in fact work at one of the employer's facilities.
Generai'ly, there is no difficulty determining an employee's
headquarters. It is where the employee works, or the
· employer's facility which is used as the employee's base of
operations~
The word "headquarters" is not defined in Article 24 or
elsewhere in the collective agreement, with the exception of the
"designated" headquarters in Article 38. This is not a case of
designated 'hmadquarters. We are ~t~sfied that the real
headquarters ·~f°'r b~th Ms. Jol~ and Mr. Laurin, in' the sense of
where they work~d, became Lancaster and Cornwall respectively,
following the des%ruction of thei~ headquarters at Hawkesbury. It
is unrealistic, we think, to contend that the Hawkesbury Travel
Centre, which had been gutted by fire, remained the grievor's
headquarters. It is difficult to envisage a headquarters where
there is no existing Employer facility.
Temporary assignments are governed by the provisions of
Article 6 of the collective agreement. While it may well be
arguable that the grievors were placed on some form of temporary
assignment pending a decision whether the ~awkesbury Travel Centre
would be rebuilt, the fact remains that their real headquarters
changed with the grievors' assignments to Lancaster and Cornwall.
The Ministry,~ quite properly we think, voluntarily provided
travel and meal expenses having regard to unusual circumstances.
In our view, the doctrine of estoppel has no application to the
facts of this case.
· In the result, the grievance of Mona Joly must succeed on a
finding that she had been improperly denied displacement rights
under Article 24.6.1 of the collective agreement. Ms. Joly shall
be forthwith reinstated to her position as Travel Consultant at
Lancaster and shall be compensated for all lost wages and benefits.
At the request of the parties, the panel shall remain seized on the
grievance of Mr. Laurin.
DATED at Brantford, Ontario, this3Oth day of October, 1991.
....% ........... : .~ ... iF. ..........
R. ~.'~----------------------~RITY, Q.C. - VIC./f~-CHAIRPER$ON
........ , ......
D. CLARK - MEMBER