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HomeMy WebLinkAbout1993-0080.Union&Bliss.95-03-13 , '"" :t" /'l.i.. \_.., -~ A>. ,,,- J~ "~~_:...- -- :+ ,- o.NTARlo. eMPLo.YES DE LA Go.URONNE , CROWN EMPLOYEES DE L'ONTARIO ,... ''V-- \~..:: \ ~ .:.)('1.'. 1111 GRIEVANCE COMMISSION DE I' . O(I"d ~".j.. SETTLEMENT REGLEMENT (",,1.\.). J"l...... BOARD DES GRIEFS ~A 180 DUNDAS STREH WEST. SUITE 2100, TORONTO ON MSG 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1ZB FACSIM1LE/TELECOPIE (416) 326-1396 RPUC.""V-~D .. t: t: ~ - ~=;. GSB# 80/93, 399/93 MAR 1 4 1995 OPSEU# MOH-U714, 930471-930486 PUBLIC SERVICE IN THE MATTER OF AN ARBITRATION APPEAL BOARDS Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befor,e THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance/Bliss et al) Grievor - and - The Crown in Right of Ontario (Ministry of Health) , Employer BEFORE H Finley Vice-Chairperson M Vorster Member J Campbell Member FOR THE M Doane GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C Slater EMPLOYER Senior Counsel Legal Services Branch Management Board Secretariat HEARING January 21, 1994 June 8, 9, 10, 1994 " .- JF ~.. "-' GSB It 399/93 ETC DEe I s I o N Lakehead Psychiatric Hospital (the Hospital) is located in Thunder Bay, Ontario, and operates under the aegis of the Ministry of Health Although it was built to accommodate 1200 patients, its current active treatment patient population is approximately 156, down from 237, in 1989 Beginning in that year, the Hospital experienced a concomitant reduction in the revenues it received from the Ministry of Health, from $32 million in 1989, to million $23 million in 1994 It also lost a contract from which it had derived considerable revenUe Throughout the Hospital, 85% of the budget is spent on salaries and benefits One consequence of these changes was the lay-off of 42 employees which resulted in a union grievance, and a number of individual grievances. The parties agreed that these grievances would be consolidated but that the individual grievances would be ruled on initially, and that the Board would remain seized The following sections of the Public Service Act, the Crown Emoloyees Collective Barqaininq Act. and the Collective Agreement which were in force at the time are relevant Public Service Act { 22 ( 4 ) A deputy minister may release from employment in accordance with the regulations any public servant where he or she considers it necessary by reason of s.h 0 r ta ge of work or funds or the abolition of a position or other material change in organization ( 5 ) A deputy minister may release from employment any public servant during the first year of his employment for failure to meet the requirements of his position (Emphasis added] -- - ------ --..---- - - ~-- --- --_..~- ~~..--'t'j;: Crown Emoloyees Collective Barqaininq Act R SO, 1990 Chapter C 50 18 -(1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, ipcludes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board ( 2 ) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his or her position has been improperly classified; (b) that he or she .has been appraised contrary to the governing principles and standards, or (c) that he or she has been disciplined or dismissed or suspended from his or her employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19 R S b 1980,c 108, s 18 (The parties agree that this Act was in effect at the time of the grievances ) 2 - - ---- -.--.. - 'is' %-__ .--1 Collective Aqreement ARTICLE 24 - JOB SECURITY 24 1 Where a l.a y - 0 f f 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. NOTICE 24.2.1 An employee shall receive six ( 6 ) months' notice of lay-off or pay in lieu thereof. 24.2.2 The notice period will begin when the employee receives official wri ttennotice. copies of all such notices shall be provided to the Management Board Secretariat and to the Union. SEPARATION ALLOWANCE 24.3.1. Where an employee resigns within one month after receiving surplus notice, he shall be entitled to a separation allowance of two ( 2 ) weeks' salary for each year of continuous service to a maximum of twelve ( 12 ) weeks' pay plus on production of receipts from an approved educational program, within twelve ( 12 ) months of resignation, may be reimbursed for tuition fees up to a maximum of $3,000 3 ~~ ~~- (t) 24 3.2 Where an employee resigns later than one month after receiving surplus notice, he shall be entitled to a separation allowance of four ( 4 ) weeks' salary plus on production of receipts from an approved educational program, within twe I ve (12) months of resignation, may be reimbursed for tuition fees up to a maximum of $1250. JOB OFFER GUARANTEE CONTRACTING OUT, DIVESTMENT, .~ - RELOCATION 24 17 1 Effective January 1 , 1992, employees whose jobs become surplus as a result of contracting out, divestment or comparable transfer of -work from the Ontario Public Service to a Crown agency, broader public sector; or relocation of an operation will be guaranteed a job offer in accordance w.ith this Article. Counsel for the Employer, Craig Slater, took the position that the releases were bona fide releases under the authority of the Public Service Act. s . 22 4, for reasons of loss of previously needed services and budget and projected loss of employment for the Grievors This was not, he maintained, a disguised release. Mr. Slater also asserted that S 18 of the Crown Employees Collective Barqaininq Act. supra, limited the scope of the Board to determining whether or not the release was bona fide under the Public Service Act or a disguised dismissal, and its jurisdiction did not extend to a review of the Employer's reorganization It is not within its purview, the Employer maintains, to make judgments on the reorganization or the budget cuts undertaken by the Employer Mr Slater, asserts that Article 24 of the Collective Agreement is silent with respect to the conduct of lay-off with the exception of the application of 4 ~. 1b- seniority. Grievors who have not resigned remain employed with a surplus date as of the end of March, 1994. He pointed out that in many cases there has been no cessation of employment. Counsel for the Union, Martin Doane, submitted that the Grievors were dismissed without cause and that the onus lies with the Employer to show that the release under the Public Service Act, s 22 4 was necessary because of a shortag~ of work and the abolition of positions. The Employer is required, he submitted, to show that there was a shortage of work for the individual grievor. If it is determined that the surplus was proper, then this should trigger a job offer guarantee under Article 24 17 because it was a surplus due to the divestment of the Northwestern Regional Centre Further, Management must, Counsel for the Union submitted, give preference to full-time, classified employees, and if in reorganizing and surplussing, it eliminates and replaces positions with part-time, unclassified (contract) workers, it has not surplussed in a bona fide fasl'1ion. It has, he stated, diminished the seniority-based rights which the Union and its members have under the Collective Agreement, and is destroying the integrity of the bargaining unit. If the Board accepts the Union's interpretation, it will be asking for a declaration that a job-offer guarantee should have been given to all 42 employees in February, 19'9 3 . At the hearing, witnesses for the Employer were Mr James Restall, Assistant Admi n i s trator Support Services at Lakehead Psychiatric Hospital, and Ms Terry Koivula, who is currently the Assistant Food Services Administrator Appearing for the Union were Ms Lee Hosegood whose evidence was taken with agreement of the parties and consent of the Board by a conference call Ms Sherri Marrello and Ms Mary Neubauer, who were representative I<~ood Service Helper Grievors, testified in the normal way, in person With the assistance of these witnesses, the Board was 5 -~ [P able to gain insight into the changing operational and financial aspects of: the Hospital, in general, and the Food Service Oepartment and Dental Service, in particular In response to these major changes, and with the guidance of the Mental Hea.l th Division of the Ministry of Health, the Hospital prepared a long-range strategic plan which used a resource-based approach, and the Budget Committee which consists of 5 members of senior management and the financial officer, produced the annual Operating Plan setting out the Hospital's resources and budget Mr Restall explained that the lay-offs before the Board were part of an overall hospital reorganization which occurred in conjunction with the gradual departure of the Northwestern Regional Centre Meetings were held with the Northwestern Regional Centre administration in which the Hospital negotiated the terms of the gradual reduction in the number of Centre residents and the Hospital's diminishing financial recovery Mr Restall testified that the 10' 0 od Services negotiation was particularly difficult ahd that it resulted in a decrease in the per-day patient meal recovery as well as in the number of patient days At this same time, he explained, the amount of money received from the Ministry of Health also declined Mr Restall testified that, with the reductions in both dollars and patient numbers, he believed, as Assistant Administrator, Support Services, that it was necessary for the Hospital to become "much more efficient" and, with this in mind, asked the Heads of the eight departments which he oversees, to examine all aspects of their operation and while doing so to "think zero-based" He testified that Department Heads did so, and presented a variety of ideas which .were unique to their departments They also, he stated, defended their departments He explained that this exercise was difficult because 85% of the 6 ~~~- ------' ~ ~ hospital budget i smade up of salary and benefits and there are, in certain areas, mandated staffing requirements Further, certain fixed costs exist, such as heat, light, water and groundskeeping In his evidence, Mr Restall reviewed the response of each of the departments and stated that he was forced to conclude and report to the Mental Health Facilities Branch that despite the suggestions put forward by the Department Heads it was not J possible to come close to meeting the revenue shortfall. He also presented an up-to-date r,eport on changes and efficiencies which have been implemented Some of these have resulted in changes to the staff complement, both management and bargaining unit, and to duties, as well as in mergers of certain compatible departments The reductions in the staffing complement were achieved in a variety of ways: resignations (Factor 80 and others), non- replacement, and surplussing. An attempt to use the eXisti?g, now unused resources of the Hospital was also undertaken and tenants were being sought for the vacant space through the Ministry of Government Services The Hospital was particularly seeking tenants who would make use of the available services However, as of June, 1994, while there were a number of parties who had shown interest, no one had entered into a contract Mr Restall noted that, after expenses, "all incidental revenue goes to the Treasurer" and does not remain with the Hospital At the time of the hearing the Hospital was faced with the reductions imposed by the Social Contract as well as those which were imposed as the result of multi-year expenditure reduction Recognizing that a cert~in percentage of the services needs to be maintained, the Hospital has been trying to temper the request from the Mental Health Programmes and Services Division for aggressive cost cutting and, at the time of the hearing, was negotiating with this Division with respect to budget restraints One major change which necessitated adjustments was the 7 :i ~ termination, by the Northwestern Regional Centre (the "Centre"), ot the contract that the Hospital had had since 1981 to provide space and a variety of support services The Centre was responsible for both accommodation for and care of deve lopmentally hand icapped clients who numbered 134 in 1989 'l'he Centre's withdrawal from the contract took place over a tive-year period 'l'he Hospital had, over the duration of the contract, staffed for these services and recovered costs for providing them from the Ministry of Community and Social Services, the funding Ministry However, from 1989 on, there was a gradual reduction in patient days, areas occupied, and service units, used by the Centre This was caused by the provincially- mandated programme which stipulated that developmentally handicapped clients be relocated from hospi tal accommodation to community residences. As well, the Centre reduced or eliminated its use of a number of the specific services which the Hospital had previously provided This change saw the Centre's hospital- based client population decline from 134 in 1989 to 6, at the time of the initial day of hearing (January 21, 1994), and to 0 as of March 28, 1994 These changes resulted in a reduced need for services and decreased revenues The following figures illustrate the rate and size of the Hospital's cost recovery reduction from the Northwestern Regional Centre l"iscal Year Cost Recovery 1989/1990 $3,530,000 1990/1991 $3,570,000 1991/1992 $2,900,000 1992/1993 $1,800,000 1993/1994 $ 800,00q 1994 $ NIL During the period from the spring of 1992 until the closure of the Centre in 1994, the two groups, that is, the Hospital and the Centre, worked together to try to ensure that the downsizing would take place in an orderly and rational way and that its impact would be minimized whenever and wherever possible for both I 8 I --~- - - ~ ~:. groups This phasing out led in turn to the Employer reducing its staff complement, although it was not the sole reason for cut-backs Staff from the Centre were fortunate in being placed in the community facilities This, however, was not part of the negotiations between the parties, and hospital staff were not part of this arrangement The trigger for the grievances before this Board was the declaration of 42 Lakehead psychiatric Hospital positions being made redundant due to Ita shortage of work" This declaration affected, among others, staff in the dental and food services areas, the work locations of the Grievors On February 16, 1993, the Grievors received the following memorandum directed to the group: February 16, 1993 TO staff Affected by Surplus Notice FROM: Foster Loucks Hospital Administrator For some time now the hospital has faced the prospect of re-structuring its workforce in response to the downsizing and closure of the Northwestern Regional Centre We have now been authorized to. proceed with the specific designation of surplus positions The impact will be felt most of all by the service departments which have been jointly funded by the hospital and the Northwestern Regional Centre Ih making the declarations of surplus, it is important that each of you know that this in no way reflects upon your personal commitment to your job and to the contribution that you have made to the organization over the years Quite the contrary You are a valued employee So much so, we urge you to take advantage of the support services that are be ing made available so that we can work with you toward re-deployment either within the hospital or in the wider public service This may involve re-training and other forms of preparation at the employer's expense 9 i 9t I hope that, having been declared surplus to our current needs, no doubt an immediate shock, you will, over the months, come to see an opportunity for other work and a renewed career I want to assure you that the hospital is prepared to assist in any way possible Yours sincerely (Signed) Foster Loucks Hospital Administrator FL ib On February 17, 1993, individual employees subject to lay-off .. were given verbal notice personally and individually at their work locations On the following day they attended a meeting held by Human Hesources and attended by Mr Loucks and Mr Resta1l. At that meeting they received the following formal notice of lay-off dated February 18, 1993 I regret to advise it has become necessary to declare a total of 42 Lakehead psychiatric Hospital positions redundant due to shortage of work, and your position is one I have declared redundant, in accordance with the powers and duties delegated to me by the Deputy Minister This letter serves as your notification in accordance with Section 22(4) of the Public Service Act and Article 24 1 of the Collective Agreement that your position is redundant effective immediately, but the effective date of lay-off will be March 31, 1994 I sincerely regret the need for this action and wish to acknowledge your valuable contribution to this facility Yours truly (Signed) Foster Loucks Hospital Administrator In response to the lay-off notices, individual grievances 10 i [l were tiled and on February 15, 1993, the Union filed a grievance alleging that its members employed by the Ministry of Health at Lakehead Psychiatric Hospital and who were surplus sed on or about !t'e br ua r y 11, 1993, have been improperly surplussed in that the employer has denied their proper rights which flow from Article 24, and in particular Article 24 17 1 - Job Offer Guarantee The Union sought (a) a declaration of a violation of Article 24 17 1, (b) the proper application of Article 24, in ~ particular 24 17 1, and, (c) that each employee impacted by the improper application of Article 24 be made whole .. On February 26, 1993, sixteen employees of the Lakehead psychiatric Hospital. filed individual grievances alleging that they had been unjustly dismissed, and seeking reinstatement, monies and benefits retroactive to the date of dismissal At the hearing, it was confirmed that the number of individual grievors had been reduced from sixteen to six for a variety of reasons which involved individual situations and decisions Those individual grievances which remained were those of Grievor Position Date of Hire 1r Annette Scarcello ** Food Service Helper May 1988 Mary Neubauer Food Service Helper December 1987 Tammy ttcGauley Food Service Helper 1986 Sherri Marrello Food Service Helper -- Fanica Stmic '/('/( Food Service Helper -- L Lee Hosegood Dental Hygienist Apr i 1 1, 1981 '/( The date of hire is not necessarily reflective of seniority status of regular part-time employees since their seniority depends on the number of hours they have worked, and it is constantly changi.ng ** Ms Scarcello and Ms Simic resigned pursuant to an additional separation allowance under Article 24 3, supra, of the Collective Agreement and there is a d isputewi th respect to 11 ) -.-- ~ J~ c the continuance of their grievance rights Counsel for the Employer, Mr Slater, maintains that once an employee has resigned, all rights, including those of grievance, are lost and the Employer has no further obligations He acknowledges that Ms Simic is il1cluded in the union grievance but that it is not properly before the Panel at this time He takes the position that an employee who has resigned is no longer a Public Servant and therefore can no longer claim a right to a ~ pos it i'on The union Counsel, Mr Doane, takes the position that the onus rests with the Employer to show that there was authority to surplus the individual Grievers; that is, that there was a shortage of work for the individual grievor. It is, therefore, relevant which Grievors remain grievors and which do not Once the authority to surplus is established under the Public Service Act. s 22 4, then, Mr Doane maintains, rights flow and surplus employees may either opt to quit or be redeployed. Resignations are irrelevant to the determination as employees are required to resign in order to protect their positions If a surplussed employee does not resign, he or she is redeployed according to seniority or geography following a sequential process. There is a stronger set of rights under the "quit and job-offer option" Mr Doane submits that resignation does not mean that one loses one's right to grieve, just as in the case of dismissal, one can file a grievance even though one has been dismissed Some emp 1 oyees who have resigned are mitigating by taking part-time positions, while others have not have obtained a position Counsel retained the option of submitting written submissions with respect; to this issue However, in the result, they chose not to Is there a distinction to be made with respect to grievance rights, between 12 , ~ IS (a) employees who are dismissed for cause under S 22 3 of the Public Service Act, (b) employees who resign of their own free will, and (c) employees who resign pursuant to Article 24 3 1 or 24 3 2 of the Collective Agreement, after receiving a surplus notice? The right of dismissed employees to grieve is set out in the Collective Agreement 27.8 2 Any employee other than a probationary employee who. is dismissed shall be entitled to file a grievance at the second stage of the grievance procedure provided he does so within twenty (20) days of the date of the dismissal probationary employees do not have the same entitlement under the Collective Agreement. 27.8 1 Any probationary employee who is dismissed or released shall not be entitled to file a grievance. However, it is established in the Grievance Settlement Board jurisprudence that probationary employees are entitled t oha ve the release reviewed for good faith, and reasonableness OPSEU (Sheppard) and The Crown in Riqht of ontario (MGS), (1986) GSB 2492/86 (Slone) OPSEU (Clark) and The Crown in Riqht of Ontario (MCS), GSB 443/82 ( Swan) Probationary employees are also entitled to grieve a dismissal under Section 18 (2)(c) of the Crown Employees Collective Bargaining Act, as it was at the time of the grievances It is well established that employees who resign and have second ) thoughts are entitled to file a grievance and have their subjective intention at th<<: time of the alleged resignation, reviewed a't arbitration Do employees who choose the time- 13 ~'l " limited resignation options under Article 24 3 1 or 24 3 2, in preference to deployment when a layoff is imposed by the Employer lose the right to grieve that layoff? The Collective Agreement is silent with respect to grievance rights under these particular circumstances It could be assumed that the Separation Allowance option was in the Collective Agreement to provide options to employees and, from the Employer's perspective, to minimize the number of grievances However, Article 27 7 addresses the filing of a grievance in case of lay-off Where an employee files a grievance claiming improper layoff and the grievance is referred to the Grievance Settlement Board in accordance with 27 4', the Union shall notify the Employer, in writing, at least three ( 3 ) weeks prior to the date established for the Board's hearing, of the title and location of the position which will be the subject of the claim before the Board Article 27 4 sets out the grievance timelines If the grievor is not satisfied with the decision of the Deputy Minister or his designee or if he does not receive the decision within the specified time the grievor may apply to the Grievance Settlement Board for a hearing of the grievance within 15 days of the date he received the decision or within 15 days of the s~ecified time for receivinq the decision [Emphasis added] It is contemplated that grievances will be filed in the event of layof f, given that a layoff decision is taken and notice given by the Deputy Minister and that this authority is often delegated, one can conclude that the grievance process in the case of a lay- off commences at Article 27 4, and it is these timelines which are relevant Therefore, the grievances of employees who have been given a notice of lay-off would need to be filed within 15 days ot the notice of lay-off There is nothing which states that if a grievor subsequently resigns, his or her grievance expires The notices of lay-off of Ms Scarcello and Ms Simic were dated 10' e b r u a r y 18, 1993, and were delivered to them personally on that date Their grievances are dated February 26, 14 - ~ ,. 1993 '1' hey are within the time limit, and the fact that they chose the retirement option does not disqualify them from pursuing the grievance '1'he fac,t that they have chosen this opt i on may be dealt with at the point of remedy, should they be successful Dental Hyqienist Ms Hosegood testified that she has been employed at Lakehead Psychiatric Hospital for the past 15 years, and on staff ~ since 1981 She has functioned as a dental hygienist, the only o.ne in the Ministry of Health psychiatric Branch For the duration of her employment there, she has provided dental hygiene services to patients at the Hospital, and to clients of Northwestern Regional Centre from 1981 to March 31, 1991, when the Centre terminated its use of this dental service From 1981 to March 31, 1994, Ms. Hosegood filled a full-time position (36 25 hours per week) From April 1, 1991, she was see ing only Lakehead Psychiatric Hospital patients. As of April 1, 1993, following her lay-off, she became a regular part-time employee servicing Lakehead Psychiatric Hospital patients She testified that the full-time dentist position had been eliminated in 1989, and the dental assistant who had formerly been on staff and was on LTIP at the time, was declared surpius in January, 1992, and that since that time, she had filled the roles of both dental assistant and receptionist during the dentist's twice...weekly, half-day visits, and the role of dental hygienist one day a week She stated that there is a backlog of 6 months' to a year's duration on recall and admissions and she does not see this backlog clearing under the present arrangement In cross-examination, Ms Hosegood acknowledged that she had been absent due to an injury and was in receipt of LTIP from February 13, 1992 to August 17, 1992, and that for that period of time she was not replaced On her return to work, she test~!_~_ed, she was working a modified schedule of 20 hours per week which !.5 ,. the Hospital wished to increase to 24 and then 28 hours per week She agreed that following the surplussing that she had been offered a regular part-time position for which she was not required to compete At the time of the hearing in Jtine, 1994, she was working a flexible schedule, usually of 24 hours weekly depending on the dentist's schedule and the patients' needs It is her opinion that with her hours reduced approximately one- third, there is not sufficient time to carry out the dental hygiene which the patients need Ms Hosegood also testified that she was not aware that she had received recall rights under Article 24 17 of the Collective Agreement Food Service Department Ms Koivula and Mr Restall both testified with respect to the changes in the Food Service Department The representative Grievors Mary Neubauer and Sherri Marrello, testified to their perception of the changes. Ms. Koivula testified that the Food Service Department, due to the nature of the service it provided, had special staffing requirements She explained that it is a daily operation, with staff working a variety of hours and shifts between the hours of six in the morning and six-thirty in the evening Previously the Department was staffed between the hours of 6 00 a m and 7 00 P m It provides 3 meals a day and snacks in between, and serves patients, staff and visitors As well it had, in the past, served lunch and coffee at meetings held in the Hospital without a catering fee, and stocked the vending machines These activities, because they were unproductive, were eliminated as part of the budget economies and reorganization Ms Koivula noted in her testimony that while the Department had sought to provide catering to outside users as a revenue producer, any profit from this endeavour did not directly accrue to the Hospital but went to the Provincial Treasurer The Staff Cafeteria has continued to operate but its scheduled hours have been reduced to 3 per day 1~ ,!' Food Service Helpers have a variety of duties throughout the day and are crucial to the smooth and efficient operation of the belt line, to food preparation and to the prompt delivery of meals to the wards At breakfast, (0715 to 0800) they bring dishes to the belt-line server, make toast and coffee, put out juice and then serve in positions on the belt-line Here food is served, and trays are loaded, transferred to carts and delivered to the various wards Following mealtime, Food Service Helpers collect and return the trays to the kitchen and wash the dishes A similar routine is repeated for the other two meals (1115 to 1200 and 1615 to 1700) Between these duties they are involved in salad, sandwich and plate preparation, filling of the coffee machines, wrapping of cutlery, setting up and delivery for catering, picking up supplies, setting out items, clean up, as well as snack preparation and service. A I imi ted service is provided during the weekends The staff reductions in the Food Service Department were considered necessary because of the departure of the Northwestern Regional Centre, the reduction of Lakehead Psychiatric Hospital in-patient numbers, and the revenue reduction. Overall budget restraints were achieved in a variety of ways over a period of approximately 3 years. In 1991, the staffing level was reduced by not replacing employees who were off on sick leave or employees who retired, and in 1992, vacant positions were deleted In spite of these efforts in November of that year, this Department, along with others, was required to corne up with a more concrete cost-saving plan At that time the Food Services Administrator, tis Paroschy Harris and Ms Koivula considered revisions to the work schedule and met with staff to inform them that changes were corning and to ask for their input and co- operation They then prepared a plan for the organized, gradual decrease of staffing hours to coincide with the Northwestern Regional Centre's departure The plan essentially reduced the 17 .i number of staffing hours by declaring redundant a number of full- time positions and creating a numbe:r of regular part-time positions Due to the man<;1ated timing of meals, the workload demands a concentration of staff at meal service times The result is that while there is, according to Mr Restall, "a base requirement of function" (there may be a reduction in the number of potatoes to be mashed but you still need someone to mash them) , the workload is not evenly distributed throughout the day This means that scheduling for;: effective and economical staffing is complex and difficult The schedule must allow for the "peaks and valleys" of the daily routine as well as vacation, holidays and sick days There were some days when too many full-time I staff were scheduled for duties; there were other days when there were not enough and the Employer found it necessary to use unclassified workers on the belt line. The unevenness, which had built up over a number of years, became more pronounced when there was a major reduction in the number of meals prepared and therefore the amount of food preparation required, and a concomitant reduction in purposeful activity between the meal service times There is also a reduced requirement for food service helpers on the weekends The scheduling solution which the Food Service Department and the Hospital concluded best met the current needs and evened out the staffing, involved moving from a two-week to a twelve-week rotation This took place in September 1992, and the Employer hoped to be able to maintain the maximum number of employees This was not, however, possible, according to Ms Koivula, as the Employer concluded that there were not 11 full-time positions there As of April 1994, five full-time food service helpers norma lly work on weekdays from 0700 hours to 1530 hours, and four from 1000 hours to 1830 hours, while four regular part-time food service helpers work from 0700 hours to 1330 hours and another four from 1215 hours to 1830 hours On occasion unclassified and Go-temp food service helpeI:s 18 I .,. are used. Mr Restall testified that Go-temps are used when staff are involved in retraining which, as a general rule, is during the week According to Ms Koivula, they are used in place of both classified ~nd unclassified employees because the~e has been a restriction on hiring unclassified and classified employees since the fall of 1992 and any such hirings require that a case be made and approval gained at both the local and the provincial levels They were used particularly at the time of deployment fallowing the notice of lay-off The re-organization of the Food Service Department is illustrated in the following table Food Service Positions Food Service Positions Before reorganization After reorganization November 1992 April 1994 * Changes F S Administrator F S Administrator (1 full time1 (1 full time1 Ass't F.S Administrator Ass't F S Administrator (1 full time] (1 full time] Clinical Dietitian Clinical Dietitian (1 full time] (1 full time] Chef Chef (1 full time] (1 full time1 F S. supervisors F S Supervisors (5 full time! (3 full time (2 given up)Jlt Departmental Secretary Departmental Secretary (1 full time OAG 8] [1 full time OAG 8] Cafeteria Cashier Cafeteria Cashier [1 full time OAG 3] [1 regular part time (25 hours) OAG 3]* F S Clerk F S Clerk [2 full time OAG 4J [1 regular part time (24 hours) OAG 41* Ingredient Control Clerk Ingredient control Clerk 1~- '. ! (1 full time (1 regular part time ( 625) Clerk Supply 3]** Clerk Supply 21** Cook 3 Cook 3 [2 full time] [ 0 (1 given up, 1 eliminated)] Cook 2 Cook 2 [ 4 full time] [3 full time ] * Regular Part time Cook Regular Part time Cook [1 regular part time ( 8) ] [1 regular part time ( 8 ) ] Therapeutic F S Helpers Therapeutic F S Helpers J [2 full time] [2 full time] Full time F S Helpers Full time F.S Helpers [24 full time] [ 11 full time ( 1 given 11 ". up, converted]lt Regular part time Regular part time (30 hour) F S Helpers (30 hour) F S Helpers [2 regular part time [2 regular part time (30 hours)] (30 hours)] Reguiar part time Regular part time (24 hour) F S Helpers (24 hour) F S Helpers [5 regular part time [12 regular part time (24 hours)] (24 hours)]* 5 part time (24 hours)] 12 part time (24 hours)]lt This reorganization resulted in a reduction from 5l.3 full time equivalent positions to 36 475 positions, or 14 825 full time equivalent positions The number of food-service helper hours per week day was reduced from 186 in 1990/91 to 128 in April, 1994, and per weekend day, from 166 to 110 The total number of F'ood Service Helpers working is the same as in 1992, although some of them are working less time, according to Ms Koivula, because of the peaks and valleys As we 11 , at the time of the implementation of the schedule, there was considerable disruption across the Department and there was an increase in sick time requiring staff available on short notice Ms Koivula stated that split shi fts would be ideal from a scheduling stand- 7D ., point but that they are not allowed for in the Collective Agreement Reductions were also experienced in categories where changes are noted Ms Koivula testified that the Food Service Department needs the number of persons and the number of hours that they have calculated for They do not need fewer persons Ms Marrello and Ms Neubauer testified as to their participation in the downsizing process, the impact it had on them and their perception of it Sherri Marrello began work as a part-time employee in April, 1985, and in 1987, she became a full-time employee as a Food Service Helper in the Food Service Department. She was a full- time employee until March 31, 1994 She testified that during the time that discussions were in progress between employees and the Employer with respect to rescheduling, s he was on Maternity Leave She did, however, return to vote on the scheduling issue It was her understanding, from Ms. Paroschy Harris, that the rescheduling was necessary to retain the part-time employees. She returned to work in November, 1992 Ms Marrello testified that she received the verbal notice of her lay-off personally I from the Administrator of the Food Service Department. She was clearly offended by the way in which this was done I was doing regular duties and I was pulled along by the elevator [and told] Sorry, you'll be laid off, [due tol a shortage of work She went on to describe her participation and view of the meeting held the following day by the Human Resources Department at which the reasons for the lay-offs were presented She could not see why, with the existing distinction between unclassified and classified employees, what had happened to seniority She spoke about the "anger, hurt and tears" When Go-temps then were employed as Food Service Helpers "while the ink was not dry on the surplus notices", she was clearly doubly offended Ms Marrello was under the impression that the only full-time 21 ,:~ employees declared surplus were in the F'ood Service Department but acknowledged that the Employer's information that there .were three full-time employees outside this Department who we r e' surplussed, was probably accurate Ms Marrello also spoke of the deployment meeting when all 42 surplussed employees met together and where she discovered the "shock" that others outside the Food Service Department were experiencing Ms Marrello worked 40 hours per week until March 31, 1994, when s.he began her 24 hour per week work On April 25, 1994, she commenced replacing someone on sick leave, working for 40 hours a ,r- "" week; she continued in this position at the time of the hearing. Ms Marrello noted that one part-time person had been hired since the rescheduling and is of the opinion that there is sufficient work for her to be employed full-time. Mary Neubauer began work as an unclassified employee in May of 1987 and became classified in December, 1987 She has worked only in the Food Service Department Ms Neubauer testified that in the Fall of 1992, Ms Paroschy Harr is called all the Food Service Helpers together and asked for volunteers to work on rescheduling for the Food Service Helpers She did not volunteer for this task It was Ms Neubauer's understanding that the purpose of the rescheduling was to avoid cutting part-time jobs. She stated that one of the Food Service Helpers asked if anyone would be f ired and was told "No" Then new schedules went into effect On February 17, 1993, Ms Neubauer testified, Ms Paroschy Harris came to each Food Service Helper who was to be declared surplus, at her work station to inform her that she would no longer be required, due to a shortage of work and the closing of the Northwestern Regional Centre Ms Neubauer described the meeting on the next day and spoke of the feelings of "anger, frustration and discrimination" that were prevalent and of her own experience which made her realize that the impact of the surpluss ing was not 1 imi ted to the employee but would be 22 Ii. " felt by families as well When she realized later in the week that there were 3 Go-temps working as Food Service Helpers she was once again upset She found it hard to understand why regular part-time employees who had only been there since 1991/1992 were able to keep their jobs when full-time employees with more seniority were not Ms Neubauer attended the redeployment meeting where she was assisted with resume preparation However, no jobs showed on the computer which matched her qualifications Nothing changed, she testified, until a further schedule change occurred on April 1, ". 1994. At that time the Employer hired 8 more part-time employees, 3 of whom were surplussed, classified full-time She, herself, was rehired in September, 1994, as a 24-hour, regular part-time employee In March, 1994, when the Employer was taking on another 24 hour regular part-time employee, she approached Ms Paroschy Harris to increase her hours and was referred to the Personnel Department. She asked about dividing the 24 hours into 3, thereby increasing the hours of 3 regular part-time employees who had previously been employed as full-time classifieds She testified that a meeting was held subsequently at which the Employer spoke of its need for flexibility Eventually, it was agreed that hours would be increased, she stated, rather than hire Go-temps. The employees would work up to 40 hours per week and be paid for these and, in cases of over- time, they would waive the overtime and the hours would be banked [ 'l'his was part of the local agreement under the Social Contract ] Now, Ms Neubauer is working 40 hours a week but is still classified as pa~t-time Ms Neubauer was asked how this affected her seniority She replied that as a 24-hour part-timer, she can find her seniority overtaken by a 30-hour part-timer As a rehired regular part- time employee she was classified as a part-time emplo~ee back to 1990/1991 She explained that although full-time and part-time 23 ') -~ . employees are in the same bargaining unit, the full-timers cannot bump into part-time positions and visa versa She believes that sl)e and her surplussed colleagues did not get their rights under the bargaining unit She does not see why the matter could not have been handled by terminating part-time employees from the bottom up rather than in the middle, instead of laying off full- time staff In her opinion, there was sufficient work for her and other grievors to have full-time positions. She noted that the Food Service Department had always had full-time Food Service Helpers and she could riot see the justification for departing from this practice ,.- Ms. Neubauer disagreed with Ms. Koivula's contention that part-time employees were necessary to deal with the peaks and valleys With the assistance of her colleagues who were attending the hearing, Ms Neubauer prepared and presented a schedule proposal which focussed on the employment of full-time Food Service Helpers while offering flexibility at the same time. She acknowledged that she was not able to address the peaks and valleys precisely because she did not have scheduling details available to her but she was convinced that, with the exception of sick time whe,n someone would need to be brought in, the work could be covered by their schedule proposal, that the proposal was not deficient, and that it could be worked out. i J Ms Koivula reviewed the proposed schedule, pointed out some specifics which she considered were problematic and concluded that there were too few people in the peaks and too many in the valleys and overlaps Ms Koivula described the process and consultation which was undertaken in developing the existing schedule and she was of the opinion that the schedule which is now in place is fair and efficient and offers some flexibility 24 j '4 .. Arqument Mr Slater, Counsel for the Employer, asked the Board to rule on one of two issues; that is, on the propriety of the Employer's decision to release the Grievors under the authority of the I Public Service Act, s 22 4, supra He characterized the Union's position as believing that the Employer has no basis under s I 22 4 of the Public Service Act, and that therefore the termination becomes a dismissal without cause which gives rise to grievance rights under the Crown Employees Collective Bargaining Act, s. 18 - 2 (c) This is the statutory right to grieve dismissal wi t-hout just cause Mr. Slater submitted that the evidence of the Employer supports the position that the grounds did exist for the Employer to release the Grievors under s. 22 4 of the Public Service Act. and that the Employer did what it purported to do; in other words, that the release of the Grievors was a bona fide release The scope of the Board's review, Mr Slater submitted, is limited to inquiring as to whether the releases under s. 22 4 of the Public Service Act were made in good faith (bona fide) and reasonable under the circumstances This scope does not extend to an inquiry into the merits of the releases or into whether the Employer could or should have acted in a different fashion Nor, does it extend to determining whether the Board would have come to a different conclusion on the facts before it The scope is the same, he maintained, as that adopted in probationary release cases Both inquire into the bona fides of the release and into whether or not the release is a disguised dismissal In carrying out its review, the Board will also need to assess the bona fides. according to Mr Slater,in relation to the Crown Employees Collective Barqaininq Act, s 18 ( 1 ) deems each collective agreement to provide ~ ~5 , ~+. that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions, and (b) . and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. He submitted, as well, that nowhere in Article 24 of the Collective Agreement or in the totality of the Collective Agreement is there a provision which governs or constrains the manner in which the Employer chooses to reorganize its workplace and to rearrange staff while doing so. The Collective Agreement does not say, he argued, that one shall respect the seniority provisions or follow certain schedules during this process It does state, however, that in such circumstances, the Employer shall give notice to the Union. The question of the bona fides of the release is determined before one reaches Article 24 In his rev.iew of the evidence, Mr Slater stated that the evidence with respect to the loss of clients and the simultaneous loss of revenue and the effect on both common and direct services remains unchallenged It is not -poss ible, he argued, to separate the loss of revenue and the loss of work The Emplo~er's response to these losses was to reorganize and the evidence shows, Mr Slater submitted, that throughout this difficult process, the Department Heads tried to defend their departments and staff and struggled to maintain service levels It is illogical, he argued, to suggest that the time and efforts of Mr Restall, the Hospital Administrator, and the Department Heads eouid be anything other than what they purport to be 20 ~ ,. - l"-: Mr Slater submitted that Ms Hosegood's evidence with respect to the work of the Dental Hygienist did not demonstrate that the work was there for a full-time position since her testimony showed that she had been virtually part-time for two years and she was not replaced during a six-month absence in 1992 The Employer's evidence demonstrated that due to a loss of revenue, it could not support the services which Ms Hosegood thought it could support With respect to the Food Servi.ce Department, Mr Slater submitted that the Union's evidence that, in the opinion of its witnesses, there may not have been a material change in the organization, nor a loss of revenue or work, or at least they did not think so This is not, Mr Slater argued, enough, in the face of the Employer's evidence of loss of revenue and work. In considering the situation in the Food Service Department, the Board should, Mr Slater submitted, take note of the reasons for the changes, and the relationship of the staff cuts to the peak and valley workload At the outset of his argument, Mr. Doane, for the Union, acknowledged that Mr Slater's relating of the law was fair, even though he departed from him at a couple of junctures At the same time, he made the point that 13 full-time positions had been transformed into regular part-time positions Although he recognized that it is generally accepted that Management has discretion to do this providing it exercises it authority reasonably, he maintained that permanent employees, unlike probationary employees, have vested rights to employment pursuant to the Collective Agreement and that when dealing with these rights one has to make out that the shortage of work is such that the full-time position must be removed He submitted that a strict level of scrutiny is appropriate when considering such a case 27 ~ ~ ~. Mr Doane also argued that S 22 4 of the Public Service Act, provides the Deputy Minister with discretion to interfere with vested rights under certain conditions, that is, he or she "may" when "necessary" We have heard from Management at Lakehead psychiatric Hospital why they consider it necessary, but we have not, he submitted, heard from the Deputy Minister It is not sufficient for the Deputy Minister to say that there is a shortage of work and that therefore he or she has an unfettered right to layoff employees, he argued. For example it would not be acceptable for the Deputy Minister to say that there is a shortage of work in the laundry, therefore a dental assistant is to be laid off It is necessary, according to Mr Doane, for Management to demonstrate that there is a nexus between the shortage of work and the particular lay-off Mr. Doane recognizes that as a result of the Centre's closing, the number of meals was reduced, but he questions whether OJ:: not it was necessary to surplus these five Food Service Helpers Mr Doane argued that the decrease of 40% which took place from 1985 to 1994 is not necessarily determinative of a requirement for staff reduction, rather the operative time is between 1992 and 1994, and the operative date is that point in time when Management says tha t it needs to surplus It can be assumed that there was no over-staffing in 1992 and the 15% reduction in meals between 1992 and 1994 does not justify a 50% reduction in full time Food Service Helpers Mr Doane has concluded from the evidence that Management is trying to save the maximum amount of money He contended, however, that in some situations, the desire of management to save as much money as possible must take a back seat to the rights of employees under the Collective Agreement In this ~egard, the evidence of Mr Restall concerning the Hospital's shortage of revenue is not relevant Although he recognizes that the Assistant Administrator, 28 ~ , t;. >. " Food Services, is more of an expert in scheduling than either of the two union witnesses, he asked the Board to recognize that Ms Marrello and Ms Neubauer came very close to meeting Management's requirements in their schedule proposal, which utilized more full-time employees, covered the valleys and required only a small adjustment for peak times Mr. Doane submitted that the issue is whether it has become necessary to declare six (5+1) grievors redundant due to a shortage of work In this situation, Management has turned its mind to how to configure the time of 11 full-time and 14 part- time !,'ood Service Helpers and further, to how to equalize the amount of time With respect to the 5 Food Service Helpers, it has not turned its mind to maintaining as many full-time positions as possible The necessity for surplussing has not been made by Management and Mr. Doane submits and concludes that the situation is within the realm of what in Timmins, infra, the Board can do. The Employer has not established that the shortage of work is sufficient for it to eradicate the Food Service Helper Grievors' vested rights under the Collective Agreement. In the case of the Dental Hygienist, Mr Doane maintains that this position was to serve the Lakehead Psychiatric patients and that her servicing of Northern Regional Centre clients which ceased in March 1991 is not relevant to a determination of whether or not there was a shortage of work at the time of lay- off He submits that the evidence of a back-log of work of between 9 months and 1 year is uncontradicted The fact that she was absent for several months on Long Term Income Protection and Management chose not to replace her for that period, is not relevant to a determination of whether or not there was a shortage of work Mr Doane argues that the only way in which the Deputy Minister can subvert Ms Hosegood's right to work is to demonstrate a shortage, and in this instance it has failed to do so 29 'f ~i it Counsel for the Union submits that, contrary to the argument put forward by Mr Slater, there is no provision in the Collective Agreement which would permit the Employer to reorganize the workplace as it sees fit; there is everything which constrains how the Employer manages the workplace- seniority, right tola job and dismissal only for certain reasons In reply, Mr Slater, submi tted there is nothing in the Collective Agreement which suggests that seniority is a prevailing consideration in determining who is surplussed Rather seniority applies to how a person is dealt with once he or she is declared surplus Article 24 states that employees are to be identified in order of .seniority and in this case this procedure wa.s adhered to, according to Mr Slater, and no violation of Article 24 occurred Counsel referred us to the following cases which the Board has referred to in its consideration of this matter Re Caressant Care Nurs i nq Home. L i stowe 1 and Un i ted Food & Commercial Workers. Local 175 (1988), 3 L.A C.(4th) 236 (Jolliffe) Re Maolewood Nurs i nq Home Ltd.. T i lsonburo ( Maole Manor) and London & District Service Workers' Union. Local 220 (l989), 9 LAC (4th) 115 (Hunter) Re Cot-poration of City of Timmins and Canadian Union of Public Emoloyees. Local 1140 (1990), 14 LAC (4th) 23 (Brown) OPSEU (Babb et all and The Crown in Rioht of Ontario (Ministry of Community and Social Services, (1989) 1173/88 . OPSEU (Dafoe et all and The Crown in Rioht of Ontario (Ministry of Natural Resources) 1988 1868/87 OPSEU (Joseoh Varin) and The Crown in Rioht of Ontario (MCS) (1983) GSB 496/82 3f1 .~ ~\ '<>i .,.. Decision Section 22 4 of the Public Service Act, suora, authorizes release from employment by a deputy minister when, in his or her opinion necessity is created by one of the following (a) a shortage of work~ ~ or (b) a shortage of funds, or (c) the abolition of a position; or (d) other material change in the organization In the instance of the "release" of an employee under Section 22 4 of the Public Service Act, it has been repeatedly held that there is an onus on the grievor to establish first that the termination was not what it purported to be In the Jacmain case ( 1 9 7 8 ) 2 S C R 15, the Supreme Court of Canada produced three different judgements, but it was held that the adjudicator or arbitrator has a duty to decide as a preliminary jurisdictional question whether the termination was correctly characterized by the Employer [Varin, suora, at page 30] At the same time The onus is on the Ministry to show how it arrived at the decision to release It only showed that funds were subsequently transferred Just as in the situation of a purported subsection 22(5) release, so in a subsection 22(4) release the Ministry must show that the power was bona fide exercised Le in our case it must adduce evidence to show that it bona fide exercised its right to release for lack of funds The issue is the same as the need for the employer to show that if it purports to exercise its power under subsection 22(5) of the Public Service Act to release from employment any public servant during the first year of his employment for failure to meet the requirements of his position, the ministry must do so bona fide and not as a disguised dismissal without just cause, see Leslie and Ministry of Community Services [sic] at page 13 Only the Ministry can show the Board that the transfer of funds in this case was not an arbitrary and capricious exercise of its authority It is not a heavy onus and we cannot review the reasons to say if they are good reasons, but there is ")1 t ~ :<i review for good faith and lack of arbitrariness [ Da foe eta l. suora] 1868/87 at pages 18 and 19] The Crown Emolovees Collective Barqaininq Act. R SO , 1990 Ch~pter C, 50, section 18 -(1), suora, which was in effect at the time of the lay-offs, sets out that it is the exclusive function of the employer to manage, among other functions, ~ employment, complement, organization, assignment and work procedures The section goes on to exclude such matters from becoming the subject of collective bargaining or from coming within the jurisdiction of a board The Grievance Settlement Board is one such "board" The relationship of these two statutes, was discussed in Leslie, suora. where the issue was a "release" under Section 22.5 of the Public Service Act, suora The term "release" is also used in subsection 4 (Subsections 1,2,and 3 refer to "ma y suspend from employment", " ma y for cause remove", "may for cause dismiss". ) Arbitrator Adams (as he then was) wrote as follows at page 13 The two statutes are closely related and, indeed the Crown Emoloyees Collective Barqaininq Act makes a number of explicit references to the Public Service Act. Accordingly, the absence of the term release in section 17 (2) (c) [18 (2)(c)] must be construed and interpreted to be a significant and intent~onal omission Thus it follows that the bona fides release of a probationary employee in the first year of his employment made in good faith and for failure to meat the r.equ i rements of his position cannot be contested before this Board [Grievance Settlement Board] under s 17(2)(c) [18(2)(c)) We observe that this result is not contrary to any policy either expressed in legislation or understood in the industrial relations community Indeed, the purpose of drafting the state in this way is likely found in the reasoning of Re United Electrical Workers & Sauare D Co. Ltd., (1956) 5 LAC 289 at page 292, a viewpoint given the explicit 37 --- 1 'i',~ >- approval of the Supreme Court of Canada in Jacmain A tew qualifications should, however, be noted Until the Supreme Court of Canada has said otherwise, this Board is of the opinion that the employer cannot camouflage either discipline or the termination of an employee for a reason other than [the] employee's failure to meet the requirements of his position, as that phrase is explained in the Sauare D Co. Ltd. case, by the guise of a "release" under section 22 ( 5) of the Public SerVice Act. This Board, [Grievance Settlement Board] therefore, has jurisdiction to review a contested release to insure that it is wha t it purports to be But in the adjudication of such a grievance, this Board [Grievance Settlement Board] is without jurisdiction to evaluate and weigh the reasons of the employer unless the collective agreement provides .- otherwise The Board must only be satisfied that the employer, in good faith, released the employee for a failure to meet the requirements of his position. As long as the Board can be satisfied that the employer has made an evaluation of that kind, it has no jurisdiction to review the fairness or correctness of that determination under Section 17(2)(c) C18(2)(c)] The "release" of a probationary employee (22 5) and the "release" for necessity (22 4) are analogous with respect to jurisdiction of a board The extensive evidence presented by the Board with respect to its reduced revenues,- the loss of th,e $3 ~ million contract and reductions of $1 million a year since 1991/1992- and its severely reduced patient numbers - a decrease of 259 beds from 1989 to 1994 - are set out above The amount of work in the various Support Service Departments, is dependent, for the most part on the number of patients, although there is certain basic work which needs to be carried out which is not influenced by patient numbers; for example, groundskeeping The details and process of change in the Support Services Department, particularly the Dental and Food Services areas, are also set out above The thrust of Ms Hosegood's test imony was that there , was no shortage of work since there was a patient backlog and that with the number of hours devoted to her work, particularly as a hygienist, there was no possibility that the backlog would 33 'I; c<S1:" ~ be cleared or even reduced A certain backlog is normal in the context in which Ms Hosegood works While Ms Hosegood's professional opinion as a hygienist is valuable in considering the appropriate size of a back-log and the frequency of admitting and preventive care and treatment, as is that of the dentist, the decision respecting these levels is ultimately Management's The Board finds that the reduction in the overall patient pool results in a concomitant reduction in the amount of available work and that Management's determination that there was a shortage of work and a reorganization required, was a reasonable conclusion and a bona fide decision, and was not a disguised dismissal There is no need to repeat the details of the shortages and changes The representative Grievors from the Food Service Department were of the opinion that the reorganization could have been accomplished differently in order to save more full-time positions at the top, and they presented their proposal as to how this might have been done. The Board, under the Crown Emolovees Collective Barqainina--Atl, s. 18, suora, is precluded, however, from. reviewing the reorganization and it would be " i mpr oper of us to comment on their proposal We do, however, recognize the impact that major changes and particularly lay-offs have on the personal lives of employees The Employer has, to the satisfaction of the Board, proven that, in the Dental and Food Service areas, there was both a shortage of work and a shortage of funds, based on the overall institutional funding shortage and the reduction in patient numbers It has shown as well, that the individual changes which took place were part of a considered and comprehensive reorganization, which constituted a material change in organization This reorganization involved the abolition of a 34 ;; !'f-- \~ number of positions, in particular, the full-time positions of the Grievors The Board finds, further, based on the evidence with respect to the necessity for reorganization and the involvement of employees in that process, that the lay-offs were made in good faith and that the Employer's actions were not arbitrary Mr Doane, for the Union, maintains that the Employer must show that there was a shortage of work for each individual employee The Board does not accept that this is requirement in the context of a organizational change that affects a number of positions which, are the same. It is reasonable, in that context, to consider the sum total of the work The Board accepts that such a requirement is appropriate for the dental hygienist position However, the Employer must only demonstrate that the necessity was caused by one of the designated reasons and it has done that under the others In conclusion, the Board finds that the Grievors were "released" from their employment, that this was a bona fide release under the Public Service Act. s 22 4, that is, a release made in good faith, and was what it purported to be. This was not a disguised dismissal As requested by the parties, the Board will remain seized of this matter Dated at Kingston , This 13th day of March, 1995 l~~ifif d~ Campbell, "I Dissent" (dissent to follow) M Vorster, Member .,- _J