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HomeMy WebLinkAbout1992-0330.Whiteside&Stewart.92-12-16 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE2100, TORONTO, ONTARIO, M5G IZ8 ' TELEPHONE/TELEPHONE: (4 16~ 328-1388 180, RUE DUNDAS OUEST, BUREAU 2fO0,' TORONTO (ONTARIO), M5G IZ8 FACSIMILE,'TEL~COPIE (4 I8) 326- 1396 330/92, 332/92 IN THE FATTER OF AN ARBITRATION Under. THE CROWN EMPLOYEES'COLLECTIVE BARGAINING ACT Before THE GRIEVANCE' sETTLEMENT BOARD BETWEEN OPSEU (Whiteside/Stewart) Grievor - and - The Crown in Right of Ontario (Ministry of Health) .Employer BEFORE: W. Kaplan Vice-Chairperson P. Klym Member D. Clark- Member FOR THE G. Leeb UNION Grievance officer Ontario Public Service Employees Union FOR THE P. Thorup EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING November 16, 1992 Introduction .._ . By grievances dated December 6, 1991, Mary Stewart and RoSe Whiteside, Customer Service Clerks with the Ministry of Health, grieve a Violation of Article 24 of the Collective Agreement. Article 24 is titled "Job Security," and the gravaman of both grievances is that the emPloyer has improperly applied the surplus provisions. In brief, the union alleged that the emPloYer declared too many OHIP CustOmer Service Clerks surplus and, moreover, was premature in making that declaration given a, continuing workload for those clerks as demonstrated by the hiring of 'employees for supposedly surplus positionS. The case proceeded to a hearing in Toronto, at which time counsel for the employer raised two preliminary objections. In employer, counsel's submission, the two grievanCes, were out of time and should be dismissed on that basis. In the alternative, employer counsel argued that, in the circumstances of this particular case, even if management had improPerly applied the surplus provisions, the two grievors, because of their relatively limited seniority, wOuld not likely be recalled to their former positions. These objections were disposed of at the hearing, and this award sets out our reasons for decision. In the course of ruling on the employer's second objection, certain.concerns arose 'with respect to notice to other employees. Following 'discussion, there was agreement among' the parties as 'to the appropriate scope of notice, and that agreement will be set out at the end of this award. For the purpose of determining the preliminary objections only, the parties entered into evidence an agreed statement of fact. Ms. Stewart also testified. I~ost of the facts 'are not in dispute. The EVidence The two grievors worked as Customer Service' Clerks for the IVlinistry of Health's Claims Payment Division.-The Claims Payment Division is responSible for the registration of health care benefits for both care providers and the general public. This Division also handles the payment process and fee-for-service claims. Generally, the.Claims PaYment . DiVision is responsible for the administration of what is still popularly referred to as the-OHIP system. In 1990, OHIP-premiums were eliminated and an Employer Health Tax introduCed, In . the summer of 1989, in anticipation of this change~ management determined that the' need for Customer Service Clerks would be reduced, and some 300 such clerks across Ontario were deClared surplus. These employees were reassigned to other positions in the Ministry of Health~ or in other ministries. Salaries were red-circled. Ms. Stewart received her notice in July 1989 and was transferred to her new position in January 1990. Ms. Whiteside received her notice in July· 1989 and was transferred in April 1990. Implementation of the new payment and registration regime proved problematic. In ,particular the assignment of new Health Numbers created an unforeseen demand for Customer 'Service. Clerks. These new clerks were recruited from a variety of sources. Approximately three contract · employees were utilized prior to the surplus declaration and remained employed until the spring of 1991. Three other retired emploYees were hired on a' temporary basis in 1990 for up to.three months. Also, additional agency staff were utilized on a temporary basis beginning prior to the declaration and up until the spring of 1991, after which no more temporary employees' were used. In addition, the Communications Branch of the Ministry of Health set up a special hotline and 'eight multilingual staff' became temPorary CuStomer Service Clerks..The grievors, and at least five other Ministry employees, were. brought back to their old jobs 'on a temporary basis. Ms. Stewart served as a temporary Customer Service Clerk for three six-month tours, 'dating from May 14, 1990 to December 9,. 1991. Ms. Whiteside .served 'as a temporary .Customer Service Clerk for tWo six-month tours, dating from NOvember !9, 1.990 to May 20, 1991, and from June 11, 1991 to December 9,1991. Other Ministry of Health employees have been seconded to the Division to work as CuStomer Service Clerks as part of the MinistrY's Skills Development Program. This program allOws Ministry employees to enhance their Skills and broaden the base of their knowledge in order to be able to react and ·cope with technological advances. This program's purpose is twofold: It seeks first to foster emplOyee skills, and secondly, to provide · the Ministry with skilled labour in areas where sUch labOur is required. These assignments do' not exceed six months, and the employee generally spends the first few mouths learning the position. Apart from these developmental assignments~ the Ministry' is not currently filling Customer Service clerk positions by giving employees temporary assignments, nor is it using temporary workers and has not done so since the spring of 1991. In the meantime, the position of Customer Service Clerk was reclassified upward, retroactive to January 1986. As a result~ the union and the employer agreed to create a Secondary Surplus List to provide opportunities to employees' declared surplus whose original positions were later reclassified retroactively. This was designed to compensate for the fact that their.reassignment had been based on a lower classification. Ms. Stewart testified about her apparent delay in filing a grievance. She testified that her' new assignment began in April 1990, and in May 1990 she applied for a posted temporary Customer Service Clerk position. Ms. Stewart Was given the position, and when it was posted again at the end of October or beginning of November, she again applied and was again given the position. Ms. Stewart was to have returned to her new Job in June 1991, but with crowds' of people lined up around the building to obtain 'their new Health Cards, she was kept.on for a further term, following, another posting. By December 1991; Ms. Stewart had been in the her old job for eighteen months,-and she kneTM that her term was about to expire. She then learned that there would be fUrther postings for her position. She spoke with the .acting manager, who advised her that she Would'be returning to her home' position, Which was, of course, the new job she briefly occupied before returning to her old one. The Acting Manager also advised her that in future the temporary Customer Service Clerk position postings would be restricted to a certain group of employees, Which' did not include her. · Immediately following this.'conversation, in which Ms. Whiteside also ~participatedl the grievors contacted their union representative and filed the grievances now before the Board: Ms. Stewart had not previously filed a grievance~ other than a classification grievance. She testified that she was not aware that she could file a grievance about the surplus declaration until December 1991, and that as soon as she was aware that she had the right to do so, she filed a grievance~ In cross-examination, Ms. Stewart was asked Why She did not file a grieVance between January and April or May of 1990. She testified that there were still more senior Customer Service Clerks working 'in the Division at that time, althOugh she conCeded that the employer had begun to bring in some temporary clerks to assist with the extra workload. The .employer agreed at the conclusion of Ms. Stewart's evidence to accept it a§ representative of Ms. Whiteside's case.· The evidence having been comPleted, the case proceeded to argument. Employer Argument With Respect to Timeliness · Counsel for the employer argued that the' grievances shOuld be dismissed because they were out of time. In counsel's submission, the time limits were mandatory, and as they had .not been complied with the grievance Should not'be allowed to proceed. Counsel pointed out that the grievors had plenty of opportunity between the time they were declared surplus' and the time they finally filed .their grievances to assert their Collective Agreement rights. In counsel's submission, the time periods began either at the surplus declaration or when the grievors moved to-their new home positions. No matter which date was chosen, it was clear in counsel's submiSsion from the evidence that the grievances were out of time. In addition, counsel argued that the non-continuation of the temporary assignments in' December 1991 did not .raise a breach of Article 24 of the Collective Agreement, and so was not an appropriate point at whiCh to start the clock. union Argument With Respect to Timeliness The union took the position that the grievances were timely as. they were filed within twenty days of the grievors becoming aware that they.had a complaint or difference pursuant to the Collective Agreement. That, counsel submitted, was the issUe to be determined in accordance with settled law. The fact that the filing of the grievances was coincidental to the non-renewal of their temporary contracts was neither here nor there in determining the legal question, which was: when did the grievors become aware that'they had a collective agreement right? CounSel reviewed the evidence with the Board, as well as some of the leading authOrities on 7 point, including P. ier.r.e 0492/86 (Verity) and the .Divisional Court's decision on Point (File 404/88, decision dated .September 5, 1990), Decision With ResPect .to Timeliness Having carefullY co'nsidered the evidence and arguments of the parties, we are of the view that both grievances are timely.. The evidence is clear that Ms. Stewart filed her grievance as soon as she learned that she had a grievance to'file.' Without a doubt there was a long delay in both cases in filing the grievances. In part, this delay can be explained by the circumstances of this case. As the employer noted, it did not accurately anticipate the response to 'the program changes, and this required it to hire employees, on a variety of terms, after it made and implemented the surplus declarations. It is hardly surprising in these circumstances that the grievors 'would not be aware, until the dust had some chance to settle, that the surplus provision may not have been properly applied. By the time the dust did settle,' the grievors were doing 'their old jobs on a .temporary assignment, and there was no reason for them to file a grievance at that time. As soon as they learned of the existence of a. Collective Agreement right, and as soon as they formed the opinion that the surplus provision had not been properly complied witch, they contacted their~ union representative and immediately filed a grievance. This immediate response was well within the time periods provided for in' the Collective Agreement. Moreover, dismissing the employer's' timeliness objection is, given the .. facts of this case, consistent .With GSB jurisprudence and the decision of the Divisional COurt. Employer Argument With Respect to Arbitrability Counsel for the employer argued that the grievances were inarbitrable in that they did not ~admit of any remedy given 'the relatively junior seniority of the grieVors. Assuming, for the sake of argument, but without conceding the ·point, that the emploYer cut too early and too deeply, counSel argued that there was no evidence 'that the grievors would have remained in permanent CustOmer Service Clerk positions, and that all of the evidence was, in fact, to the opposite effect. MoreOver, counsel for the employer took the position that because the grievances seek to force the Ministry to rehire the grievors as Customer Service clerks, they are 'inarbitrable in that 'staffing and employee comPlement is exclusively reserved to the Ministry under the Collective Agreement and the Crown Employees Collective Bargaining Act. Counsel .argued that it is up to the employer to establish employee complement, and in the case of Customer-Service Clerks in the Toronto region, the employer has established that complement at twenty,four. Counsel pOinted out that establishing the complement was not just a question of determining how many emPloyees were needed to do a job, and 'he suggested that .more employees could cOnceiVably be hired for the Toronto office. However, he stated that management has determined how mUch of a backlog is acceptable to it, and that it has exercised its jurisdiction to run the workPlace with the number of employees it . considered appropriate, and .that complement was twenty-four employees. The Board, in his submission, did not have the jurisdiction to make. any order that would affect management's complement determination. Accordingly, counsel suggested that the grievance should be dismissed on this basis. Union Argument With Respect to Arbitrability union counsel argued that the grievances were arbitrable because the union was alleging a violation of Article 24 of the Collective Agreement. The union was not attempting to exercise jurisdiction reserved to management~ rather it was seeking the review of the surplus declaration given its submission that.the .jobs remained in effect and were' being performed by additional staff. Counsel pointed to evidence to this effect, including Various job postings for developmental temporary Customer Service Clerk. Among others, a July ;1991 posting was also introduced into evidenCe, and it sought to fill 54 .of these pOsitions, 30 of which were to be in Toronto. These. postings were significant evidence, counsel argued, that the surplus jobs. were not in fact surplus when .the employer made a declaration to that effect. In counsel's submission, the employer cannot declare jobs surplus and then fill those jobs with employees gathered from a variety of sources over an eXtended period of time, and seek to avoid arbitral review by relying on its management rights. Decision With Respect to Arbitrability It is necessary to decide this issue assuming the Union's "best case." That case may prove that jobs declared surplus by 'the employer were not surplus, but were in fact. continuing positions. If that is the case, a violation of the Collective Agreement will be established. Assuming this to be the. case, it may be, as employer counsel suggests, that given their relatively Iow seniority, the grievors would still have been declared surplus. This does not necessarily lead to a finding that the grievors would have no remedy. Much would depend on.what conClusiOns the' Board reaches, again, assuming the best union case, as to the appropriate date.for the surplus declaration to have come into effect. Even if the grievors did not have' sufficient seniority to retain their position, upholding their grievances might 'still accrue to their benefit. For example, 'the Board might find that' the work continUed until December 1991, and that this was the effective date of the surplus. As already noted, such a declaration would not necessarily result in the grievors being returned to'Customer Service Clerk positions. What it might result inl however, is longer wage protection for the grievors, as their salary would .be red-circled at the later (and thus) higher rate. Unfortunately, none of these matters can be determined in the context of a preliminary objection about remedy, and so we are reserving ~ our decision on this objection. Besides, we are satisfied that the Board does~h'ave the jurisdiction to make' a 'finding with respect to the operation of Article 2:4, which may ultimately affect employee assignments. 'Needless to say, this decision does not purport to do so. All it decides is that there is a case to be heard. Additional Observations As noted at the outset, in the context of this hearing discussion ensued- with respect to notice to other potentially affected employees. It was agreed that timely notice of the continuation of· these proceedings would be provided to all surplused Customer Service clerks 'within forty kilometres , of Toronto, regardless'of seniority, who remain employed with the ProVince of Ontario as of November 17, 1992. It was also agreed by the parties that should the grievance prove to 'be successful, implementation of any award would be suspended pending the completion of any temporary developmental assignments. This agreement precluded any necessity of notifying employees holding such positions now, or in the future, who might be affected should, and again assUming the union's best case, the Board find a violation of the Collective Agreement and declare the surplus declaration premature. It was brought to the Board's attention that a number of other· grievances· .similar to the instant ones have been filed and referred for a hearing. It 11 was suggested to the 'parties that, in the interest of their resources, as well as those.of the Board, efforts be made to consolidate those grievances with the instant ones. The case will resume on the dates set by the .Registrar. DATED at Toronto this 1 6th day of December 1 992. William Kaplan Vice-Chairperson P.-Klym Member D. C~ark Member