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HomeMy WebLinkAbout1992-2295.Paul.95-10-06 }1 ONTARIO EMPLOYES DE LA COURONNE l CROWN EMPLOYEES DE L'ONTARIO ,f' 1111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 1 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMiLE /TELECOPiE (416) 326-1396 GSB # 2295/92 OPSEU # 92F886 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Paul) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE S stewart Vice-Chairperson FOR THE G. Adams GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE J. smith EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING August 10, 1995 I I J .~ . ,~, DECISION The grievance before me is filed on behalf of Mr. J. Paul, an employee of the Ministry of Natural Resources The parties were able to agree to all of the relevant facts and at the outset of the hearing presented me with an agreed statement of facts, the text of which states as follows 1 On June 26, 1992, [the] Grievor received notice that as a result of the reorganization of the Ministry of Natural Resources, he would be reclassified from his position of Information Officer 2 to that of Resource Technician- Senior 2 (See Appendix 1). Prior to this re~lassification the grievor worked ill the "Greater Toronto Area" region of the Ministry of Natural Resources. 2 On June 30, 1992, the Grievor responded to the June 26, 1992 memo (See Appendix 2). 3. On July 15, 1992, the employer responded to the June 30, 1992 memo (See Appendix 3). In this memo the employer has interpreted article 5.2.2 to mean that the grievor is entitled to the first vacant Informatio~ Officer 2 level position that occurs in the "Parks and Natural Heritage Policy Branch " 4 The Grievor filed this grievance dated July 21, 1992 (See Appendix 4) 5. To date the employer has not offered any position in his former classification of Information Officer 2. 6. The parties agree that the sole issue to be deciqed here is whether the grievor's entitlement to be appointed to a position in his former classification extends beyond the "Parks and Natural Heritage Policy Branch " The parties agree that should there be any entitlement to a position beyond the "Natural Heritage Policy Branch" then the parties will reconvene a hearing at the Grievance Settlement Board in this matter before the Grievor accepts any position offered to him by the Employer. It is understood that the sole reason for this arrangement is to allow the parties to contact any third party who may be affected by this grievance. It is further understood that the same third party notice obligations will apply where '~ r; 2 -, the Union makes a claim to a specific position to which the Employer disagrees on 7 At the time of the reclassification, the Ministry of Natural Resources' structure was consistent with Appendices 5, 6 and 7 8 The parties agree that they will not be putting into evidence, any evidence with respect to the bargaining history on article 5 2 2 9. The parties agree that a~y claim on behalf of the Union to any potential position is limited to positions within the Ministry of Natural Resources. 10. The parties agree that the arbitrator will remain seized of this matter in the event that there is any remedial entitlement flowing from this preliminary ruling. The appendices referred to in the agreed statement of facts provide further detail regarding the background of the dispute. In Mr. Paul's June 30, 1992 memorandum he advised the Employer that he wished to exercise his rights pursuant to Article 5.2.2 of the Collective Agreememt. The essence of the Employer's reply I was that Mr. Paul's entitlement to an Information Officeer 2 I vacancy by virtue of Article 5.2.2 was limited to a position I arising in the Parks and Natural Heritage Policy Branch of the ! I Ministry. I I was provided with three organizational charts depicting the structure of the Ministry of Natural Resources. One, entitled "Ministry Overview", sets out five divisions, consisting of POlicy, operations, Information Resources, corporate Services and Forestry Industry Action Grdup. The Provincial Parks and g \., 3 Natural Heritage Policy Branch is one of eight branches listed under the heading "Policy". Under the "Operations" heading there is a reference to "Greater Toronto Area". The latter designation is one of several geographic designations which, taken together, appear to encompass the entire province. Another organizational chart, depicting the policy division, again shows the Provincial Parks and Natural Heritage Policy Branch as one of eight branches of the Policy division. A third chart, depicting the Provincial Parks and Natural Heritage Policy Branch, indicates that the Branch is divided into five areas of responsibility with each of the five areas headed by a manager or co-ordinator, reporting to the director of the Branch. As the foregoing agreed facts indicate, the relevant provision of the Collective Agreement is Article 5.2 2. As Article 5.2.1. provides context for this provision I have reproduced them both: 5.2.1. Where the duties of an employee are changed as a result of reorganization or reassignment of duties and the position is reclassified to a class with a lower maximum salary, an employee who occupies the position when the reclassification is made is entitled to salary progression based on merit to the maximum salary of the higher classification including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the reclassification takes place. \... 5.2.2. An employee to whom the above section applies is entitled to the appointment to the first vacant position in his former class that occurs i~ the same administrative district or unit, institution or other work area in the same , -i 4 ministry in which he was employed at the time the reclassification was made. Mr Adams, on behalf of the Union, argued that Article 5.2 2 should be interpreted broadly, in light of its purpQse In Mr Adams' submission, the purpose of Article 5 2.2 is to return an employee who has been displaced to a position in his former classification. Mr Adams argued that to take a narrow view of the cachement that this provision contemplates would be to defeat the purpose of the provision Mr. Adams argued that the provision contemplates that an employee is entitled to return to a position which may arise in his immediate work area, such as the particular institution in wpich he is employed. However, if no position is available there and there is a position in the former classification available elsewhere in the Ministry, particularly within the geographic region in which the employee worked, Mr Adams argued that the employee is entitled to such a position. Mr. Adams argued that the phrase "administrative district" in Article 5.2.2 has a geographical connotation and submitted that where such, a district exists within the Ministry's operations, an employee whose position has been reclassified is entitled to a position that becomes available within that administrative district. Accordingly, in this case, Mr. Adams argued that Mr. Paul is entitled to the first position in his former classification arising in the greater Toronto area. In the alternative, Mr Adams argued that the appropriate cachement area for the purposes of the application of Article 5.2.2 is the p ~,1 5 entire Policy division, rather than the Branch. Mr. Adams referred me to three decisions of the Grievance Settlement Board in which principles of interpretation are discussed: Ministrv of . ') Health & OPSEU (Irwin), 9/75 (Beatty), Ministrv of Correctional Services & OPSEU (Boucher/Trumblev), 218/78 (prichard) and Ministrv of Correctional services & OPSEU (Wilson), 170/78 (Swan). \ Mr. Smith argued that the language of Article 5.2.2 must be viewed in the context of a Collective Agreement which governs a large number of employment situations and structures In Mr. smith's submission, the concluding phrase of Article 5.2.2 is intended to constitute an exhaustive list of the various work structures which exist in the public service Mr. smith argued that Article 5.2.2 is designed to allow an employee whose position has been re-classified within a particular structure or unit to return to a position in his former classification in the event that one becomes available in that same work structure or unit. Mr. smith noted that similar language is used by the parties in Article 24 1 of the Collective Agreement, the provision which sets out the basis for application of the job security provisions that fol'low it. In Mr. smith's sUbmission, it is clear that the parties intended to provide for an exhaustive list of employees in the case of job security and that the Board should conclude that the parties also intended an exhaustive list when using similar language in Article 5.2.2. ~ . <" 6 ) MJ:' . Smith also referred to the specific language that the parties have employed in Article 24 in relation to geographical scope in situations of re-deployment. Mr smith referred me to Ministrv of Correctional Services & OPSEU (Turner) 653/84 (Knopf) where the Board made reference to the provisions of Article 24 to assist them in interpreting what is currently Article 5.2.2 of the Collective Agreement. In reply, Mr Adams noted that the language of Article 24 1 is not identical to the concluding phrase of Article 5 2.2 of the Collective Agreement. In his submission, therefore, Article 24 1 does not butresS the interpretation of Article 5.2.2 urged upon me by Mr Smith. ~ In my view,Mr Adams is clearly correct as to the purpose of Article 5.2.2 Indeed, there was no real dispute about its purpose However, the purpose of this provision is of limited assistance in relation to the determination that ~ am required to make. As Mr Swan noted in Wilson, at pp 5-6.. Purposive interpretation techniques may sometimes "fill_ in the gaps" of a collective agreement, but they may hot be used to amend t~e actual language so as to produce a result which the Board might consider more in accord with common sense. In lily view, the clear language of Article 5.2.2 do~s not support the interpretation urged upon me by Mr. Adams. The provision refers to entitlement to the first vacancy arising in "the same [einphasis added] administrative district or unit, institution or ( ~~ c:! 7 other work area in the same Ministry " In my view, the words . . "the same" indicate that the clause is clearly intended to ~ provide for the right of an employee to the fil;'st classified position arising ~n the particular work environment he was in at the time of his reclassification. I agree with Mr. smith's submission that the reason that the clause outlines alternatives is because there are many work environments within the Ontario public service. In my view, if the parties had intended Article 5.2.2 to reflect the process Mr. Adams suggested, they would have utilized different language to convey that intention. I am, unable to accept that the parties' use of the word "such" prior to the words "work area" in Article 24.1, a provision which appears to be setting out an exhaustive description of work areas, should lead me to the conclusion that Article 5.2.2 does not purport to set out an exhaustive list of I work areas. Article 24.1 does not include the words "the same" As previously indicated, the use of the words "the same" which precede the phrase which includes "or other work area" in Article ( 5.2.2 seems to me to be a clear indication that the parties are identifying the work structure relevant to a particular individual. To the extent that a purposive approach to the issue is appropriate, it must be noted that entitlement to a position elsewhere in the Ministry is an entitlement that would often be i , , ,,- 8 of no practical value to a re-classified. employee if it means that he or she is required not only to relocate but to relocate without the benefit of a moving allowance The employee is entitled to only one opportunity to exercise the right granted in Article 5.2.2 and to be denied entitlement to a subsequent vacancy in his former classification arising in his particular work area by virtue of having refused a vacancy in another position is not, in my view, a result that the parties would reasonably have intended. witp respect to the reasonable intentions of the parties, Mr Adams submitted that if a branch is the appropriate cachement area, the clause would have no meaning if a branch were dissolved, a re~ult that the parties are unlikely to have intended. However, if an entire branch were abolished, it would seem most probable that the circumstances of an employee would be those captured by Article 24, or Article 5.4.1. , as opposed to Article 5.2.2. It appears to me that the opeation of Article. 5.2.2 is premised on work structures such as a branch or institution continuing to exist. In Wilson, supra, there is reference to the fact that the Employer had in that case looked for vacancies for the grievor throughout the Ministry I agree with Mr. Smith's spbmission that the Employer's actions in that particular case do not properly compel me to conclude that Article 5.2 2 imposes such an obligation. ~' I ~ !!- 9 In my view, the real issue in this case is what constitutes the grievor's work area. The reference to "institution" in Article 5.2.2 indicates that the work area is to defined narrowly. While the evidence before me as to the structure of the Ministry of Natural Resources was quite limited, it is I apparent that the Provincial Parks and Natural Heritage Policy Branch is a discrete work structure. The entire policy qivision, in my view, is broader than what is contemplated by the reference to "work area" in Article !? 2 2 While geographic designations, including the Greater Toronto Area, exist within the Ministry, the evidence did not establish that this particular administrative district in any way constituted the grievor's "work area". For the foregoing reasons it is my conclusion that the Employer acted in accordance with Article 5 2.2 in taking the position that the grievor's entitlement to the first vacant position in his former classification is restricted to the Parks and Natural Heritage Branch of the Ministry. Accordingly, the grievance is dismissed. \ l~ Dated at Toronto, this p day of October, 1995 $~~ "- S L. stewart - Vice Chair