HomeMy WebLinkAbout1995-2385.PARAYANKUZHIYIL.97-10-28
OfITARIO EMPLOy/tS DE LA COURONNE
CROWN EMPLOYEES DE L'OfITARIO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G tZ8 TELEPHONE/TELEPHONE (41(S) 32tS-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSfMfLErrELECOPfE (41") 32tS-13PtS
GSB # 2385/95
OPSEU # 96B315
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Parayankuzhiyil)
Grievor
- and -
the Crown in Right of ontario
(Management Board Secretariat)
Employer
BEFORE R L Verity Vice-Chair
FOR THE A Ryder
UNION Counsel
Ryder, Wright, Blair & Doyle
Barristers & Solicitors
FOR THE M Nixon
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING July 16, 1997
September 15, 1997
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DECISION
This matter arises from the initiative of the Ontario Government in the spring of
1995 to reduce the deficit. At that time, each Mimstry was gIven notice of financial
constraInts and a target In order to achIeve significantfinancial saVIngs. The Ontano Realty
Corporation, beIng WIthIn the jurisdIction of Management Board Secretariat, dId not escape
unscathed.
XaVIer Parayankuzhiyil, classIfied as a building contract admimstrator, works in
Kingston for the Property Support ServIces Branch of the Ontario Realty Corporation. HIs
senionty dates back to May 13, 1987 Mr Parayankuzhiyil received written notice, dated
October 5, 1995, that his position had been declared surplus to the needs of O.R.C. and that
he would be laid off on April 4, 1996, if he was unable to find another position within the
provisions of Article 24 of the collective agreement He was eventually laid off on May 9,
1996.
In a grievance filed, Mr ParayankuzhIyil alleges "that I have been declared surplus
wrongly thereby VIolatIng the collectIve agreement - Article 24"
At the conclusion of the first hearing day, the parties requested a ruling on the
proper interpretation of the words "administrative dIStrict or unit" contained m Article 24 1
of the collective agreement. The partIes agreed that the relevant collective agreement is
"the green book", namely the agreement for the period January 1, 1992 to December 31,
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1993 Article 24 of that agreement is entitled "Job Security" The provision in dispute reads
as follows:
24.1 Where a lay-off may occur by reason of shortage of work or funds or the abolition of a
positIon or other material change in organization, the identification of a surplus
employee in an administrative district or unit, institution or other such work area and
the subsequent assignment, displacement or lay-off shall be in accordance with seniority
subject to the conditions set out in this Article.
It is perhaps desirable to quote 24 9 1( a) inasmuch as counsel for the employer made
duect reference to it:
DISPLACEMENT
24.9.1 Effective January I, 1992, an employee who has completed his probationary period and
who is subject to lay-off as a surplus employee, shall have the right to displace an
employee who shall be Identified by the Employer in the following manner and
sequence:
(a) The Employer will identify the employee with the least seniority in the same
class in which the surplus employee is presently working and if such employee
has less seniority than the surplus employee, he shall be displaced by the surplus
employee provided that such employee is in the same mmistry and within a
forty (40) kilometre radius of the headquarters of the surplus employee and
provided that the surplus employee is qualified to perform the work of such
employee;
No eVIdence was adduced of negotiatmg history despite the contention of both
partIes that the phrase m dIspute was ambiguous. The followmg eVIdence, summarily stated,
may be helpful by way of background. The organizatIonal structure of the Property Support
Services Branch of Ontario Realty CorporatIOn IS divided into various "regIons" - for
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example, the eastern region, the northern region, the central region and the greater Toronto
area. In particular, the eastern region is further divided into two areas: the Kingston area
with an office in Kingston (boundaries west to Belleville, east to Kingston, north to Bancroft
and south to Prince Edward County and Lake Ontario) and the Kemptville area with an
office in Kemptville (boundaries west to Gananoque and Smith Falls, north and east to the
Ottawa River and south to the St. Lawrence River).
In October 1995, eight buildIng contract administrators, including the grievor, worked
in the Kmgston office and six building contract administrators worked in the Kemptville
office. The two offices operate separately and serve two distinct geographical areas within
the eastern region. The grievor's supervisor, Doug Swift, is Acting Regional Program
Manager with responsibilities for the administration of both the Kingston and Kemptville
areas. The headquarters for the eastern region is in Kingston.
Ontario Realty Corporation reacted promptly to the government's initiative to reduce
the deficit.
To achIeve financIal saVIngs, the Property Support SeMces Branch In Toronto
reviewed each work site office and determined where work could be reduced, revised, or
ehnllnated. The Branch made the decIsion to reduce the number of building contract
administrators at the Kingston office from eight to five, based on the work to be done.
Similarly, the Branch reduced the number of buildIng contract admimstrators in the
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Kemptville office from six to five. Accordingly, the three building contract admmistrators
WIth the least senIonty m the KIngston office, whIch included the gnevor, were declared
surplus in October, 1995 Similarly, the building contract administrator with the least
senionty in the Kemptville office was also declared surplus to the needs of the O.R.C.
The UnIon rejects the employer's interpretation that "administrative district or unit"
refers to the grievor's work location, i.e. the Kingston office. The union contends that the
phrase is ambIguous and must be broadly interpreted to give effect to the prinCIple of
senIority and reverse order of seniority and further, that a narrow definition would render
the concept of seniority virtually meaningless. According to union counsel, in order to give
some scope to the work area, the most appropriate interpretation would be to canvass the
Property Support Services Branch at the provincial level. In the alternative, the UnIon
suggests that admmistrative dIStrIct or UnIt must mean the regIOn which in this case would
include both the Kingston and Kemptville offices. Mr Ryder claims that the grievor's
pOSItIon should not have been declared surplus m October 1995, smce he had greater
seniority than one building contract administrator in the Kmgston office and three
employees in identical positions in the Kemptville office.
The employer agrees with the union's contention that the words "administrative
district or unit" is ambiguous. Tbe thrust of Ms. Nixon's argument was that the union's
mterpretation was far too broad, that it was without foundation and that it was in conflict
with Article 24.9 1(a).
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The employer cited definitions contained in the Concise Oxford Dictionary of
Current English, 8th ed. in which "administrative" is defined as "concerning or relating to
the management of affairs", "district" as "a territory marked off for special administrative
purposes" and "umt" as "an mdlVIdual thmg, person or group regarded as smgle and
complete, espeCIally for purposes of calculation" In addluon, reference was made to two
decisions OPSEU (Beaton) and Ministry of Natural Resources #1392/88 (Samuels) and
OPSEU (Laurin/loly) and Ministry of Tourism and Recreation #1759/90, #1760/90 (Verity).
I am advised by the parties that there is no arbitral authority on the interpretation
of the words in question. It is noteworthy that in the collective agreement the phrase
"administrative district or unit" is used only in Article 24 1 and is not defined. The Article
in question is a long-standing provision designed for the purpose of identifying a surplus
employee in circumstances where a lay-off may occur by reason of "shortage of work or
funds or the abolition of a position or other material change in organization" The A.rtJ.cle
makes it clear that m the process of ldenbficauon and subsequent assIgnment, dIsplacement
or lay-off of a surplus employee, seniority is the governing factor "subject to the conditions
set out m this Article."
As stated in Brown and Beatty, Canadian Labour Arbitration, 3rd ed., looseleaf
(Aurora. Canada Law Book, August 1997), at para. 6:0000 " .seniority provisions are
deSIgned to grant certain preferences to employees based, in whole or in part, on their
accumulated length of setvice. The theory underlying such systems is to provide those
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employees possessing the longest record of service in the context of a lay-off Wlth the
greatest job security "
As to the lD1portance of semonty m a collectIve agreement, I would adopt the words
of Judge R.W Reville in Re United Electrical Workers, Local 512 and Tung-Sol of Canada
Ltd. (1964) 15 L.A.C. 161 where he states at p.162.
"Seniority is one of the most important and far-reaching benefits which the trade union movement has
been able to secure for its members by virtue of the collective bargaIning process. An employee's seniority
under the terms of a collective agreement give rise to such important rights as relief from lay-off, right to
recall to employment, vacations and vacation pay, and pension nghts, to name only a few It follows,
therefore, that an employee's seniority should only be affected by very clear language in the collective
agreement concerned and that arbitrators should construe the collective agreement with the utmost
strictness wherever it is contended that an employee's seniority has been forfeited, truncated or abridged
under the relevant sectIons of the collective agreement."
In the matter before me, it must be remembered that the parties themselves, both
the employer and the union, chose the words "administrative district or unit" for purposes
of the identificatIon of a surplus employee. As a general principle of construction, it is
necessary to discover the meaning used by the parties to the collective agreement from the
words and the surroundings, as is permissible in a particular case, to ascertain the intention.
On a close readmg of Arttcle 24 1, I do not find the words "adminIstrative district or unit"
to be ambiguous or to contain a latent ambiguity
In my view, the language chosen by the parties IS sufficiently broad to encompass a
wide variation of organizatIonal structure. In this case, the Property Support SelVlces
Branch has chosen to dIVide the PrOVInce of Ontano for purposes of adminIstratIon mto
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various regions. I read Article 24 1 in the belief that the employer adopted the regional
adnllnistrative district as the work area for purposes of identification of a surplus employee.
To my mind, the use of the words "administrative district or unit" strongly suggests that the
parties had in mind an area which was part of the Province of Ontario but larger than an
office. It is true that the evidence shows that each regIon is comprised of a number of
offices with each office deSIgned to proVIde seMce WIthIn a deSIgnated geographical area.
I turn now to the five submissions made by counsel for the employer which may be
compendiously stated as follows: first, the evidence suggests that the "adminIstrative district
or unit" is the Kingston area, secondly, the plain language of the collective agreement does
not support a broad province-wide definition, thirdly, what the union's interpretation does
is to render meaningless Article 24.9 1( a), which cannot be what the parties intended;
fourthly Article 24 1 should be interpreted narrowly in that the employer has the right to
organize and run its operations; and fifthly, Article 24 1 is inextricably bound to the rest of
the sectIons contained in the Article in which "headquarters" and the 40 kilometre rule are
of critical importance.
With respect to the first submissIOn, the evidence refers to the work office but not
In an admmIstrative dIstnct or umt. I accept the second submission but, m my view, it does
not resolve the issue. As to the third argument, I do not thInk that Article 24.9 l(a) is the
issue before me. With regard to the fourth submission, Article 24 1 does not limit the
ability of the employer to run Its operations but it does recognize the employee's right to
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base seniority on regions. Finally in my view, the questIon of headquarters is not helpful
in the construction of Article 24 1. For these reasons I do not acquiesce to these
su bmissi ons.
I am persuaded by the union's contention that an lDdiVldual office i.e. the KIngston
office, is too small an area to support any form of meaningful recognitIon of the principle
of seniority for purposes of lay-off. My conclusion is supported by the circumstances of
Larry Cryderman who is the only building contract administrator in the Lindsay office while
at the same time being the second most senior employee in the central region of the
Property Support Services Branch (see Schedule "An attached).
I find support for my interpretation in the definition of "district" as "a regional
administrative unit" contained in the Dictionary of CanadIan Law, 2nd ed., Dukelow In the
result, it is appropriate to tie the identification of a surplus employee to the administrative
distnct or admlDlstratIve umt in whIch he IS employed - lD thIS case the eastern regIon which
encompasses both the Kingston and Kemptville offices.
The effect of this ruling could assist the partIes in resolving the remaining issues in
this grievance. In the event that any issue remalDS lD dIspute, either party may contact the
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Registrar to reconvene tbe bearing at a mutually convenient time.
DATED at Brantford, Ontario this 28th day of October, 1997
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RICHARD L. VERITY
VICE-CHAIR
SCHEDULE "A"
BeA'S . EASTERN REGION. KINGSTON (4030) October 1995
1 Vincent, RJ October 20, 1969
2. Wettlaufer, Ronald April 1, 1981
3* Knott, Walter September 8, 1981
4 Bell, DaVId September 18, 1983
5 Haley, Robert March 12, 1985
6. J oslin, Dan April 21, 1987 SURPLUS OCTOBER 1995
7 Parayankuzhiyil, Xavier May 13, 1987 SURPLUS OCTOBER 1995
8. Cousins, Daniel October 7, 1991 SURPLUS OCTOBER 1995
BeA'S EASTERN REGION. KEMYfVILLE
1. Bush, Dale May 14, 1979
2. Surinskis, Gunar May 11, 1981
3 Craig, Hugh February 24, 1986
4 Galagher, Tom March 19, 1990
5 Hughes, Victor March 26, 1990
6.* Forbes, Alan November 12, 1990SURPLUS OCTOBER 1995
* OST.16 SupefV1sor
2
BCA'S . NORTHERN REGION. SUDBURY (4040) October 1995
1. Pollock, Darwin February 18, 1985
2. Melchior, Chris May 4, 1987
3* Ling, Chong May 9, 1988
4 Bisaillon, Richard August 7, 1990
BCA'S . NORTHERN REGION. SAULT STE MARIE
1 Bouffard, Conrad December 18, 1978
2.* Walls, Donald November 13, 1979
3 MacDougall, Daniel January 24, 1983
4 Bowden, Paul February 8, 1988
* OST-16 Supervisor
3
BCA'S . NORTHERN REGION NORTH BAY (4040) October 1995
1.* Blanchard, M. March 10, 1970
2. Todd, Geoffrey September 17, 1979
3 * McKenzIe, Rodnque January 15, 1980
4* Bovey, John January 4, 1982
5 Burns, Ronald September 20, 198~URPLUS OCTOBER 1995
6. Cunningham, Fredenc December 10, 1984SURPLUS OCTOBER 1995
BCA'S - NORTHERN REGION. TIMMINS (4040)
1. Durham, W.J May 10, 1971
2. Edwards, Thomas November 29, 1983
3* Hutchmson, Wilham April 1, 1985
4* Nowak, Patrick July 13, 1987
BCA'S. NORTHERN REGION - THUNDER BAY (4040)
1 * Nugent, Wilham October 31, 1983
2. Woods, James July 17, 1989
3 DhlTIlan, Kam June 5, 1990
BCA'S . NORTHERN REGION - KENORA (4040)
1 * Halonen, Lasse January 18, 1988
2. Bergman, Robert April 10, 1989
3 Markle, Ronald March 5, 1990
* OST-16 Supemsor
4
BCA'S . CENTRAL REGION. ORlLLIA (4020) October 1995
1. Cordery, A.J October 23, 1972
2. Can sino, J es January 6, 1975
3* Sleker, John July 7, 1986
4 Mark, David March 16, 1987
5 * LaPalm, Ted February 20, 1989
6. Harns, DaVid W July 3, 1990
BCA'S . CENTRAL REGION - LINDSAY (4020)
1. Cryderman, Larry December 13, 1971
BCA'S . CENTRAL REGION - GUELPH (4020)
1. Perkins, R.F July 22, 1968
2. Osinga, J July 9, 1973
3 Peart, Veral January 14, 1974
4 Walsh, H.B. September 25, 1978
5 Jibb, Wallace August 11, 1980
6 Clermont, Robert August 4, 1981
* OST-16 Supervlsor
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DCA'S - CENTRAL REGION - LONDON (4020) October 1995
1. Pytlik, Peter August 22, 1974
2. Patterson, Wayne September 12, 1977
3 Crummer, Howard April 5, 1982
4 Irving, Rick January 3, 1984
5 Wemyss, David October 21, 1985
6. Tnantafyllou, James September 8, 1987
7 Szabo, John October 5, 1987 SURPLUS OCTOBER 1995
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BeA'S . GTA (4010) October 1995
1. Calvert, R.D July 19, 1955
2. Stacey, L. J December 13, 1966
3 D' Agostmo, A. December 11, 1968
4 Hirseland, P.E. February 16, 1970
5 HarrIS, Brian October 4, 1971
6. Hudson, Terry October 25, 1971
7 Wyatt, Victor November 2, 1971
8. Magee, P April 4, 1972
9 Werdekker, J December 9, 1972
10 Quigley, G.D July 16, 1973
11. Megitt, Alan February 13, 1974
12. Galvez, Manual June 24, 1974
13 Lavery, Joseph January 27, 1975
14 Freedman, Gary February 24, 1975
15 Low, Walter March 3, 1975
16. Hilher, MIchael May 18, 1977
17 Delfish, Eric June 20, 1977
18. Rao, Sharavati September 12, 1977
19 McMillan, James July 4, 1978
20 Lo, Bing May 28, 1979
21 MukheDee, Manash May 25, 1981
22. Purcell, Gerold August 3, 1982
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DCA'S. GTA (4010) October 1995
23 Dukich, Joseph July 3, 1984
24 Matthews, Christopher May 27, 1985
25 Strano, John June 9, 1986
26. Ross, Juan November 3, 1986
27 McGibney, Earl January 26, 1987
28. Bailey, Joseph March 16, 1987
29 Veronesi, Mario January 4, 1988
30. D' Avignon, Fred July 10, 1989
31. Osborne, Martin August 8, 1989 SURPLUS OCTOBER 1995
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