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HomeMy WebLinkAbout1995-0275BELANGER97_05_21 OwrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OwrARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST; SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONErrELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST; BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILErrELlECOPIE (416) 326-1396 GSB # 275/95 OPSEU # 95B750 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Belanger) Grievor - and - the Crown in Right of Ontario (Ministry of Finance, Ministry of Consumer & Commercial Relations) Employer BEFORE D.J D. Leighton Vice-Chair FOR THE P. Shime GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE 0 Holmes EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING February 6, 1997 April 25, 1997 INTRODUCTION Ms Cathy Belanger was employed by the Ministry of Finance in the position of Revenue Information Officer until her position was surplused, in a notice to her, dated September 3D, 1994, with the layoff date effective Aprill, 1995 Her grievance to the Grievance Settlement Board (the Board) was filed March 23, 1995 and stated. I grieve under the collective agreement that I was inappropriately re- deployed to the position of Titles Certification Clerk with the Ministry of Consumer and Commercial Relations, as a surplus employee because of the conditional offer in light of the conflict of interest. The facts of this case are largely not in dispute At the same time as Ms Belanger was notified that her position had been surplused, effective October I, 1994, she was also notified that her employee portfolio would be sent to Corporate Placement Services, Management Board Secretariat, so that she could be considered for any vacancy pursuant to the provisions under Article 24 of the collective agreement The employee portfolio was completed on October 3, 1994 and received by Corporate Placement on October 5, 1994 Mr Christopher Wright, Senior Corporate Consultant, testified that Ms Belanger was matched with an appropriate position on October 24, 1994 The position was as Titles Certification Clerk in the Land Registry Office in Sudbury in the Ministry of Consumer and Commercial Relations (MCCR) at the OAG-I0 level. After further review by Corporate Placement, the Grievor's portfolio and the "certification" report were sent to MCCR for review and comment Mr Wright testified that this is the standard procedure in matching surplused employees to vacant positions On November 8, 1994 Mr Walter Zaverucha, the Land Registrar, in Sudbury, raised concerns about a potential conflict of interest with Ms Belanger Mr Zaverucha informed the Human Resources Advisor for his Ministry that his concerns ! arose because Ms Belanger held a real estate sales person's license and worked part-time in the industry He was concerned that there might be a public perception l i 2 ~ that the Grievor would gain a business advantage, partly by easy access to information at the Registry Office, for her real estate practice At the hearing, Mr Zaverucha gave an example of how working at the Registry Office might give an advantage to a real estate sales person. When property developers consider sites they often do searches in the Registry Office The searches identify the properties He said that Ms Belanger would be able to approach property owners of potential sites and offer to act as a real estate sales person in any future sale Mr Zaverucha's evidence was not that he believed Ms Belanger would do this, but rather he was concerned that there would be a public perception that she could take advantage of this kind of information. Mr Zaverucha also gave evidence that he thought it was only fair to Ms. Belanger to let her know before she took the position that there would be a perceived conflict of interest in her holding an active license and practising in the area. But he also said that it was the Deputy Minister of MCCR that had the ultimate authority in deciding issues of conflict of interest. Mr Zaverucha's letter on November 8, 1994 to Human Resources Branch, MCCR, expressed his views At the present time, we are not concerned about the fit of the redeployed candidate into the OAG 10 position. However, we are concerned that we may be placing her into a job situation in which a conflict of interest would readily emerge At present we do not allow our employees to work in the private sector in the real estate profession as our employees have direct access to information in the Land Registry Office that could/would be used or perceived to be used for substantial personal use and/or gain. It is the policy of this local office (and this reflects the policy of the Branch) a) not to give legal advice or opinions to clients (including lawyers), we cannot tell clients what to do b) we do not supply blank forms for real property dealings c) we do not prepare documents for clients, we cannot offer opinions The Ministry informed Corporate Placement While the matter was being investigated, Ms Belanger's name went back on the "active" list so that should another suitable job vacancy become available she would be automatically matched 3 to that new position. Subsequently, Human Resources Branch of MCCR asked for a legal opinion on the issue On December I, 1994 Ms. Belanger met with Mr Zaverucha to enquire into his concerns At this meeting the Grievor offered to sign an affidavit that she would suspend her real estate practice, which she explained to Mr Zaverucha was minimal. She brought her tax returns for several previous years to prove that her income from her practice was minimal. On January 10, 1995 a legal opinion was forwarded to the human resources office of MCCR and to Corporate Placement It concluded that unless Ms Belanger was willing to resign from her employment with John E. Smith Realty Ltd., cancel her registration as a salesperson under the Real Estate and Business Brokers Act, and resign any and all memberships in real estate boards, there could be a potential conflict of interest or a perception that she had a conflict of interest in taking the position as Titles Certification Clerk. After some consideration, and because Corporate Placement was of the view that Ms Belanger s employment in the Ontario Public Service was her primary responsibility, and the real estate employment was secondary, they decided that she ought to be offered the position. Thus on February 21, 1995, in a letter from Ms Judy Tomarin, Manager of Corporate Placement, Ms. Belanger was offered the position of Titles Certification Clerk. The effective date of the assignment was Friday, March 3, f 1995 Ms Belanger's salary was to be red-circled since her previous position was at ~ an OAG-ll level. This letter also indicated. If you accept this assignment, you must take the following steps to avoid a conflict of interest 1 resign your membership in the real estate boards, , 2 resign from employment with John E. Smith Realty Ltd 3 and suspend your registration as a salesperson under the Real Estate and Business Brokers Act l i Ms Belanger was given five working days from the receipt of the letter to consider the offer She was also provided with the legal opinion, dated January la, 1995 Ms Belanger signed the letter back, refusing the assignment under protest on February 4 f 28, 1995 The Grievor testified that she would have taken the job if she did not have to, in her words, give up her license as a real estate salesperson. Ms Belanger's sister was subsequently appointed to the position. Ms Belanger also gave evidence that Ms Anne Poliquin-Chaput, another person on the surplus list from her office, was assigned to a position on January 19, 1995 for which the Grievor believed she was qualified. The position was at the 9 OAD level in the Ministry of Transportation. Ms Belanger acknowledged, during cross-examination, that she had been advised by Mr David Roote, her Director in the Ministry of Revenue, by Ms Muriel Ethier from OPSEU, and from Pat Harris, Redeployment Advisor that she should take the job as Titles Certification Clerk and then negotiate with her new Ministry with regard to her license It was Ms Belanger's evidence that she believed at the time that if she resigned or gave up her license she would have to repeat all the course work that she had previously done in order to get it back. She was concerned that should the new position also be surplused she would give up something that was a qualification for an alternate potential livelihood It was clear in her evidence that she had worked hard towards the real estate sales license in order to support her husband's real estate development business Ms Belanger's earnings were minimal for her work in the real estate industry On cross-examination she stated that she had no knowledge that her license could have been held in abeyance or suspended without her losing it. She believed since the new position was with the Ministry that regulated real estate salespeople's licenses that if she took the position the license would somehow automatically be revoked. There was evidence that Corporate Placement knew that it would cost the Grievor $2000 to reinstate her license after a suspension. After her layoff on April I, 1995 the Grievor finished the course work and passed the exams to attain her brokers' license She attempted unsuccessfully to practice in the real estate area. S THE UNION'S SUBMISSION Counsel for the Union argued that this was not a case where there was a question of violation of the collective agreement. Instead, the issue was that a "company" rule imposed by the government was unreasonable The rule that was unreasonable was that people who work in the Registry Office should not hold real estate licenses Counsel argued that there was neither an actual conflict if the Grievor took the position, nor a reasonably perceived conflict that required her to give up her license and her memberships in the various real estate boards that she held. Counsel argued that conflicts, if any, could have been dealt with by disclosure, and noted that the government itself and real estate agents have strict guidelines on conflict of interest. Counsel argued that the Grievor was required to give up her license and her memberships as a preliminary requirement to taking the job as Titles Certification Clerk at the Registry Office She pointed out that there was evidence before the Board that the Grievor was more than willing to stop working as a real estate agent and had offered to sign an affidavit to that effect. Counsel argued further that because of this clear offer to suspend her practice, although not to suspend her license, the application of the rule or requirement that a person not have a license was unreasonable It was unreasonable because the consequences were extreme and there were other ways to deal with the problems of potential or perceived conflicts Counsel pointed out that in her role of Titles Certification Clerk the Grievor would only be dealing with documents that were available to the public In other words, the Grievor would not have access to any confidential information. The only confidential information that the Grievor might receive would be volunteered, as Mr Zaverucha testified, by clients using the Registry Office Regarding the example that Mr Zaverucha gave as a possible conflict, Counsel argued that this problem could have been dealt with by full disclosure in any activity 6 Counsel stated further that the legal opinion was based on an understanding that the Grievor would continue to work as a salesperson when, in fact, the evidence is clear that she was willing to suspend her practice, if not her license Counsel argued further that there should be consistency in applying any policy regarding conflict of interest. Since immediate family members are also in a conflict of interest, she argued that the assignment of the Grievor's sister to this position was inconsistent and unreasonable For an actual or perceived conflict of interest, some activity is required. She argued that holding a license is not an activity and that the Grievor's willingness to give up work in the area was enough. Since the government itself recognized that the Grievor would be put to a cost of $2000 if the Grievor suspended her license Counsel argued that they should have addressed other options Counsel relied on the following cases to support her argument. Re Regional Municipality of Hamilton-Wentworth and C.U.P.E., Local 167 (1978) 18 L.AC (2d) 46 (Kennedy), Re McKay and The Crown in Right of Ontario (Ministry of Northern Affairs) (1981) 28 L.AC (2d) 441 (Rayner), Re Public Service Commission of Saskatchewan and Saskatchewan Government Employees' Union (Ostrander) (1993) 36 L.AC (4th) 54 (Smith), Re British Columbia Telephone Company Limited and Federation of Telephone Workers' of British Columbia (1976) 13 L.A.C (2d) 312 (MacIntyre) THE EMPLOYER'S SUBMISSION Counsel for the Ministry began her submission by referring to the original grievance The Grievor complained that she was inappropriately redeployed to the position of Titles Certification Clerk because the offer was conditional as a result of a conflict of interest. Counsel argued that this is not a conflict of interest case and that the issue before this Board is whether or not the Grievor was properly assigned to the position of Titles Certification Clerk in Sudbury according to the provisions and requirements under Article 24 of the collective agreement. 7 Counsel argued that the evidence was clear that there had been compliance with the collective agreement. When MCCR advised Corporate Placement of their concerns regarding the potential conflict of interest it was investigated and considered, and then the job was offered to the Grievor It was not a conditional offer and the Grievor turned it down. The offer was not conditional, but the letter clearly gave advice as to what the Grievor would have to do to avoid any potential conflict of interest in the position. The consequences of rejecting a position are clear under Article 24. Ms Belanger was then subject to layoff without any further rights under Article 24 6 1 Counsel cited Lobraico 2934/91 {Gorsky} which cites another decision of Mr Gorsky, Read 1548/89, where he held that Article 24 "does not permit an employee to forego the process of assignment. Where assignment is offered and refused the employee would be subject to layoff without any rights under Article 24.6.1 " Counsel submitted the evidence of Mr Wright, unshaken on cross-examination, was that Ms Belanger's name went back onto the surplus list while both the Ministry and Corporate Placement were considering the conflict of interest issue, and that no other positions were available during that period of time The Titles Certification Clerk position was the only position available while Ms Belanger was on the surplus list and the Grievor was offered the position. Counsel argued further that even though the Grievor had been advised by her union and by Redeployment Advisers and by the Director of the Branch she was working in at the Ministry of Finance to take the job and then negotiate with MCCR as to how to deal with the conflict, she decided to turn the job down. As a result of doing this, Counsel argued she lost all right to challenge the conflict guidelines Thus she submitted this Board has no jurisdiction to rule on this case as a conflict of interest. There was no application of the rule that Ms Belanger should not have a real estate license in the position because she never took the position. Further, there is no right for the Griever to address what might have been done because she never took the job, and thus it is not clear what might have been worked out There was evidence from 8 Mr Zaverucha that the Deputy Minister has the ultimate authority to make decisions on conflict of interest problems, in the submission of counsel. In summary, Counsel argued that the complaint here is that the Grievor was not redeployed to a job that allowed her to continue in her part-time real estate job She argued finally that any other treatment of the Grievor in this case would have resulted in a violation of the collective agreement Counsel submitted that had Management Board not offered her this job and given her the opportunity to make her own decision with regard to the conflict, the Employer would have been in violation of Article 24 of the collective agreement DECISION Having carefully considered the evidence and the submissions of the parties, I have decided to deny the grievance I agree with Counsel for the Employer that the issue before me is whether or not the Grievor was properly assigned to the position of Titles Certification Clerk in Sudbury, according to Article 24 of the collective agreement Union Counsel conceded that there was no breach of Article 24 of the collective agreement. The evidence does not support a conclusion that the assignment of the position of Titles Certification Clerk was conditional upon the Grievor resigning or giving up her real estate salespersons' license In fact, what the letter said was that she must suspend her license when she took the position. The Grievor believed that she would actually lose it However, this was not so It would have cost her $2000 to reinstate her license, but she would not have had to repeat the course work that she had already finished. The Grievor was advised by her own union, by the Redeployment Advisors and by her then Director Mr Roote, to take the position and then negotiate how any potential or perceived conflict would be dealt with once she was on the job But she decided to turn the job down. The result of denying an assignment under Article 24 is well-established in cases such as Lobraico and Read, cited above Ms Belanger lost any right to a further assignment and made herself subject to layoff Further, I agree 9 with Counsel for the Employer that the Grievor also lost any rights to challenge the application of the conflict of interest requirements of MCCR. Since the conflict policy was never applied to the Grievor because she never did take the position, I do not need to address the submission of Union Counsel on the application of unreasonable company rules Although the Grievor feels she ought to have been matched to the MOT position, there was no evidence to support this theory Counsel for the union did not advance this argument in her submission to the Board. It is unfortunate that the Grievor did not heed the advice that was given to her by her own union and the employer and take the position. It is also unfortunate that it took so long for the Ministry and Corporate Placement to address the issue of Ms Belanger's potential or perceived conflict of interest if she took the position of Titles Certification Clerk. This delay may have contributed to the Grievor's misconception that she had to "give up" her salesperson's license before taking the position. Ultimately, it was her decision not to take the position and the consequences noted above are well established. I am in agreement with Counsel for the Employer when she argued that the Employer had no other course to take but to offer the Grievor this position. Had the Employer not offered the Grievor the position and allowed her to make the choice as to what she wanted to do about her part-time employment, it would have been in violation of Article 24 of the collective agreement. For all of these reasons I deny the grievance Dated at Toronto this ..disrday of ntJy I 1997 ~~6~~) . 1 n 10