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HomeMy WebLinkAbout1996-1860.Tran.98-02-25 Decision ONTARIO EMPLOYls DE LA COURONNE CROWN EMPLOYEES DE L'ONJ'ARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-13QfJ GSB #1860/96 OPSEU #96G300 IN THE MA TIER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Tran) Grievor - and. The Crown in Right of Ontario (Ministry of Consumer and CommercIal Relations) Employer BEFORE S Kaufman Vice-Chair FOR THE M. Keys UNION Gnevance Officer Ontano Public ServIce Employees UOlon FOR THE D Strang EMPLOYER Counsel, Legal Services Branch Management Board Secretariat HEARING January 20, 1998 DecIsIon In her gncyance dated July 8, 1996, the gneyor, Jenny Tran, an employee of the MII1I"tr\ 01'( OIl'>UI11l'r and (OI11I11l'ITlal Rdatlon,> gnl'\ed that ~hl h,HJ belll Il11properh ...urplu"ul and emplover IS 111 \lOlatloll orartH':lc ~-+ ofthl' LollLctl\l' ,lgrlCI1lCnt fhl matter proceeded before me based upon the followlIlg agreed statcment of ll1CtS I The gneyor Jenny Tran, began workmg at the MmIstry on August 27 1990 She commenced m the positIOn of data entry clerk and later \\ orked m the posItion of record search clerk. She was classed as an GAG -+ She was a regular part-tIme classIfied employee She worked at the Compal1les Branch at 393 Ul1lyerslty Aye 2 She recel\ed her layoff notIce by letter dated January 4 1996 She \\ as the least sel1lor of the regular pm1-tllne staff 3 SlI1ce her SIX month notIce penod was extended by the OPS stnke her last da) of work \\ as August 8, 1996 4 The MlI1lstry dId not offer Ms. Tran any temporary work or recall her for any temporary work after her layoff 5 Ex 4 lI1dlcates what agency staff were employed as record search clerks and data entry clerks from Jan 1996 to Del' 1997 6 Because of technologIcal change 1I1 the Compames Branch, the Mmlstry no longer reqUIred as many clencal staff In particular Ms Tran s pOSItion as a records search clerk was declared redundant as It was planned that the maJonty of search requests would be responded to electronIcally 7 FTE of the data entr} staff were declared surplus m NO\ 96 R With the Ontano Busmess Connects program, kIOsks throughout the pro\ mct.: prO\lded people WIth access to reglstenng busmess names Formerl\ \\ hen someone "'/lshed to regIster a busmess name he or she had to attend the Compal1les Branch office and file fonns The mformatlOn then had to be entered mto the Mmlstl'\ s computer system. WIth the ne\\ technology the company files the lI1fOrmatlon dIrectly ellInmatmg the need for an mdl\ Idual to enter the data. 9 The Mmlstry planned to have the ne\\ electrol1lc filmg system up and runnmg bv the spnng of 1997 HO\ve\ er because of unforeseen dc\ elopments, full nnplementatlon had been delayed The s\ stem IS expected to be m place b\ Sept 1998 I 10 As a re<;ult of the comb1l1atlOn of surplus~ed stafT accept1l1g e'\lt packages and the dela\ 111 the 1I1lplementatlOn of technology, the Branch \\ as short ~taff 111 data entn at the beg1l1nlllg of 1997 The Branch Imcd agency staff to meet then'requlrL'l11cnh In additIOn ll) thL agreed "talemcnt~ of fact'> the gnnor gave oral C\ Idcnce ShL ad\ Iscd that LIly Sookdeo of Human Resources gave her a ktter from Stlen!\. Lal Deputy Mllllster dated January 4 1996 (Ex 6) which was her lay-off notice It provided 0\ er the past few weeks, Mllllstry Management CommIttee has been rev le\\ 1I1g Its optIOns m order to meet the govel11ment S fiscal obJectIves as set out 111 the EconomIc Statement of November 29 1995 Our mmlstry wIll be reducmg Its budget by 53 1 mIllIon dollars Through careful anah Sl~ we have Identified 126 positions that wIll be elImll1ated from the lTIl111stn S operatIOns dunng the 1996.197 fiscal year I regret to adVise you that your posltlon of Records Search Clerk (R.P T ) Ortiee Adm1l11stratlOn 4 m the Compames Branch, Busll1ess DIVISIon, IS one of those affected. The mlmstrv has not been able to place you m another regular part-tIme pOSItIOn \\l1lhm 40 km 111 thIS m1l1Istry Under the authonty of SectlOn 22(A) of the PublIc Servlce Act, yoU ha\ e, therefore been declared surplus effecllve January 4 1996 Under the terms of the current Memorandum of Agreement between Management Board of Cab met and the Ontano Pubhc Service Employees Umon (OPSEU) SIgned on December 4, 1992, as a part-tllne employee you \\'111 have access to the pronslOns of ArtIcle 24 of the CollectIve Agreement. You WIll, therefore be prOVided WIth emplovment protectIOn for SI'\. months, as outlmed under ArtIcle 24 The mll1lstl) s Human Resources Branch and vour ImmedIate supen Isor Will make eyery effort to ensure that yOU recel\ e all entitlements under ArtIcle 24 of the Collecll\e Agreement and to pronde all reasonable assistance m any Job search you undertake If placement IS not pOSSible \\'Ithm the Ontano Pubhc Sernce your last da\ of employment 111 the m1l11stry \vlll be July -+ ] 996 Ho\\ e\ er I do want to express m) smcere apprecIallon for the sen Ice yoU ha\ e performed on behalf of the government of OntarIo and 111 particular to the I\1mlstrv of Consumer and CommercIal RelatIOns and \\'Ish vou e\ en success 111 the future ~ - On agreement of the parties Ms Tran also gave Ihe followmg oral e\ Idence M.... Tran ad\ l"ed that "he asked Ms Sookdeo why she was reeel\ mg a nollce of lav-olT ,lI1d Ih,lt "he I\h I ran pOll1ted otltthatthere \\a.... a lot of work and that agency peopk \\ erL \\ ork II1g here ~he asked Ms Sookcko \\hv "IK had to lea\L before agency emplovee~ had to She ad\ Ised that Ms Sookdeo said to her that she understood, and that the letter was Just a notIce and that she, Ms. Tran, was not leavmg Just then She said that Ms. Sookdeo told her to gIve her her resume and that she would try to keep her eye open for employment for Ms. Tran Ms Tran adVIsed that she subsequently gave her resume to Ms. Sookdeo \\ ho then told her that If she found someth1l1g for her she would call her Ms Iran saId that she waited and dId not hear from Ms Sookdeo She SaId that she called Human Resources tWIce, that she called Human Resources all the tIme that she spoke to Llh once a month, I guess Ms Tran saId that she also spoke WIth her Manager RIta, and all the staff that she \\ orked WIth. She saId that they saId "they WIll probably get her someth1l1g She adVised that she told her Manager Rita. that she did not th1l1k she should be laId off and that her Manager told her that they were short-staffed. and to call Human Resources to find her another aSSIgnment In speak1l1g of her conversatIOn With her Manager Ms Iran concluded that she should not have to leave her regular part-tIme employment whIle agency people \\ ere workll1g Ms Tran said that m July 1996 Lily Sookdeo told her that August 8 1996 would be her last day of emplovment. and also that she could not find her anythmg She said that she did not recel\ e a letter from the Director of Human Resources Branch dated Apnl 30 1996 (Ex 7) advlsmg her of an amendment to her release date as a result of the recent stnke and advlsmg that her ne\\ release date was August 8 1996 She said that she learned that her last day of employment \\ould be August 8 1996 on July 3 or 4 1996 from Ms Sookdeo She said that she dId not file her gnevance untIl July ]996 because Ms Sookdeo had said that she \\ould find someth1l1g for her and that she dId not \\ ant to gne\ e before gl\ 1l1g the emplovcr an opportUl1lt\ to find somcthll1g for her She , 1 said that she under~tood that the employer could find her somethmg on the last day of the la~t \\ ed, of her employment 1\1" Tran ad\ I"ed that ~hl "poke \\ Ith a representatl\e or repre"cntatl\ c" of thl lll1ll)!1 111 .Ian uar\ Il)l)() dner "hc recelvcd the notice of Iav-off "he ";1IL1 that "hl ad\ I"l'd them that M" Sookdeo had told her she would find her sOl11ethmg. and that "he understood from them that she should not tile a gnevance as filmg one might cause the employer not to find her other employment. She dId not dispute that the gnevance did not Il1dlcate that she was gnevIng that she had not been gl\'en another \vork aSSIgnment She agreed that she was aware that employees of an agency were working for the MlI1lstry m Januaf\ 1996 and that she sa\\ the Umon and told them about It Il1 Januar\ 199(1 An::ument for the Gne\ or: ArtIcle 20 of the January 1 1994 - December 31, 1998 Agreement deals WIth Employment StabIlIty Art. 20 1 1 deals WIth those laid off before March 31 1996 1t pro\ Ides The provIsIOns of ArtIcle 20 apply to any employee who receIves notice of lay-off on or after the date of ratIficatIOn (March 31, 1996) by the partIes. An employee who has receIved notice of lay-off pnor to the date of ratIficatIOn by the partIes shall be entItled to the prOVISIOns of f01l11er Article 24 (Job SecurIty) With respect to employees to whom the prO\"1SIOnS of former Article 24 17 (Job Offer Guarantee) hay e been applied up to and including the date of ratification by the parties. these provIsions shall continue to apply untIl December 31 1996 and. With respect to am employees to whom such prO\'ISIOns contll1ue to appl\ as of that date the foIlowll1g ne\\ prOVISions apply effectl\ e Januan I 1997 The Umon noted the second sentence of the above paragraph. and that the day of the la\- off notice was Januan 4 1996 and the date of ratIficatIon was March 31 1996 It wbmltted that under the prevIous collective agreement, Regular Pan-tIme employ ees \\ ere not entItled to the benefits of Art 24 Rather their nghts \\ ere conta\l1ed \l1 a Memorandum of L\greement Signed \l1 December 1992. \\hlch I" referred to \l1 i\rt 20 20 I of the current I e January 1 1994 - December 3 I 199R L\greement L\rt 20 20 I -+ 01 tilL currcnt agrecmenllcrml11ates ccrtalll memoranda of agreemcnt effectne January I 199() I11cludl11g a Memorandum of Agreement Re Regular Part-TlI11e Employees ("tgned 111 Deccmher 1992)" The UnIOn acknowledged that this Memorandum doe" not dpph to thl gnc\ or Art 62 of the l UITent agreemcnt sets out the nghts of Regular Part-tlmc employ ees 111 evcnt of lay-off It gives them Art. 20 nghts. with the mO(hficatlon" found Il1 Art 62 I Art. 62 pro\ Ides ARTICLE 62 - EMPLOYMENT STABILITY 62 I ArtIcle 20 (Employment StabilIty) of thIS Agreement shall apply to regular part-time employees wIth the follow1l1g modifications (a) when IdentIfY1l1g the vacancies 1l1to which the surplus regular part-time employee can be aSSigned, the Employer shall use the same cnterIa used for full-time employees (b) It IS understood that 111 exerclsll1g any of the nghts referred to 111 paragraph (a) above the sel110nty of a regular part-tIme emplovee shall be as calculated under Article 18 (Sel1lonty) 62 2 A surplus regular part-time employee shall only have nghts to displace another regular part-time employee 62 3 A regular part-tIme employee who IS laid off shall only have recall nghts to regular part-time pOSItions Although the December 1992 Memorandum of Agreement was tenmnated effectl\ e Januarv 1 1996 Art 20 replaces the Memorandum Art 20 I 1 states that an employee \\ho IS laid off before March 3 I 1996 recel\ es the benefit of former Art 24 .c\rt 62 ] modifies Art 20 Art 62 1 modifies A.rt 24 of the prevIous collectl\ e agreement 111 respect of emplovces laid off bet\\ een January I and March 31 1996 The gne\ or ]S penmtted to bump other Regular Part-time employ ees less selllor to her The Ul110n concedes that she was the most JUl110r and there \\ cre no displacement " opportunltle,> for her "I he gne\ or ha" accc,>s 10 i\rt 24 16 nghts of recall and can apph for \ acancle~ i\rt 24 of the PIT\ lOllS lolleCl1\ e agreement was enhanced by the SO( wi COlltr(/( ( .Ie (and the Sectorall'rame\\ork Agreemcnt (I::.x 2) and the Local AppendIx bet\\een the Govcrnment of On tan 0 and OPSEU (Ex 3) dated August I 1993 Paragraph 2( a)1 of the Local Appendix says that paragraph 4 II of thc Sectoral Framework Agreement (SF A) applIes to permanent OPSEU employees. Paragraph 4 I I of the SF A proVides Where permanent Ontano PublIc ServIce employees covered by thiS sectoral framework and a local appendix are 111 a posItIon that IS declared surplus or are released With recall nghts the~ 'rvill be guaranteed an offer olalternate emplovment where mitahle vacancies exist 111 accordance With the provIsIOns 111 the applIcable local appendix For these purposes. suitable vacancies shall mean funded pennanent and temporary (for pen ods greater than SIX months) pOsitIOns but shall exclude secondments, and developmental assignments for Employment EqUIty purposes Redeployment and recall wIll take place first With respect to the employee's mll1lstry and thereafter, OPS Wide (emphaSIS added) Paragraphs 4 15 and 4 16 apply to employees With a Job offer guarantee Paragraph 4 II IS the only sectIon 111 the SF A which applIes to the Circumstances of thiS case It defines SUItable vacanCIes as 'funded pennanent and temporary pOSItIOns" and defines 'temporary as 'for perIods greater than SIX months" The phrase "for perIods greater than SIX months" IS slgmficant 111 consldenng the lIst of agency staff employed 111 Compames Branch. Data Entry & Records SectIOn between 01/96 - 12.'97 (Ex 4) The lIst of agency staff (Ex 4) 1l1dlcates that four agency employees were emploved 111 the Data Entry department from January to March of 1996 A fifth agency employee was employed there from Apnl to August, 1996 The Ul1lon submits that the first fi\ e employees on the lIst and their employment from January to August, 1996 111 Data Entry demonstrates a contll1ll0US need for Data Entry Clerks from January to >\ugust. 1996 and that at least one employee \\ as dOll1g data entry \\ ark for 8 months. from January to August 1996 No agency Data Entl"\ clerks \\ ere employed between >\ugust and December 1996 () Prior to \\orklllg .1'> a Records Searlh (lerk M~, Tran had \\olled as a D.lta I Illrv (krk. and she IS qualified to do that work. The union submits that the Data Entr, \'vork. done b'v agenn emplovces III Companies Branch as reflccted m the lIst (F\. 4) bet\'veen Januar'v and Augu'it. 1l)l)6 constituted a sUItable \ acancy of a temporarv pos1l1un grcater than SIX months to \\ hlch Ms Tran should hay c been aSSigned pursuant to the Sectoral Framework Agreement. If Ms. Tran had been offered thIS temporary posItIOn of a Data Entry Clerk 111 January, 1996, the tempormy assignment would have extended hcr SIX- month notIce penod. That aSSIgnment would have resulted 111 her notice hav1l1g run out 111 January 1997 The list (Ex. 4) establishes that throughout 1997 between four and eight agency Data Entry Clerks were working 111 Compal1les Branch. The work IS there The Ul1l0n submits that there was a premature lay-off of Data EntIY Clerks This lead to overtime hours, and the M1l11Stry cont1l1ued to need Data Entrv Clerks 111 ] 997 Further the M1l11stIy does not expect the new electrol1lc data system to be 111 place before September 1998 The M1l11stry faIled to offer Ms. Tran a tempormy aSSIgnment 111 January 1996 111 so d01l1g, It prejUdICed her ability to access further temporaIY assignments later Argument for the Employer; The gnevance IS out of time and should be dismissed for that reason The Social Contract agreements expired on March 31 1996 S 2 of the SF A (Ex 3) IS headed Purpose and ObJectIves" S 2 1 pro\'ldes The pnmary objective of this agreement IS to presen e publIc serVIce Jobs, \\ here feasible by reahz1l1g the targeted sav1l1gs and other measures \\ hill' sen 1l1g as the baSIS for the cont1l1ued delIvel"\ of acceSSible qualIty publIc ser\'lces 111 an efficient and cost effectI\'e manner This agreement IS also 1l1tended to pro\'lde for slgl1lficant change 111 the relatIOnship among the parties by 1l1troduc1l1g mean1l1gful1l1\'oh ement of publIc service employees through their barga1l1mg agents representatI\ es 111 commIttees which will address plannmg. program orgal1lzatlon and structure delayenng, trall1ll1g retrall11l1g and redeployment. as \\ ell as reasonable access to rele\ ant tinancwl and plannll1g mformatlon 7 Whcn an agreement whIch say~ thc employer \\111 gl\e temporary a~slgnments to cmplovccs IS read wIth thl" ,;cetlon It does not mean that thc employcr wIll gIve thcm temporary assignment" 111 place of theIr lay-off notices The gnevor l-ccclved her notice m January 1996 Thc temporary work she IS lookmg at occurred dunng the penod of her own employment. ThiS would mean another surplussed employee would fill her positIOn, etc Para 4 11 of the SF A, supra, means that If there IS a temporary assignment at the end of the employee s notice penod. the employee WIll get It. Nothmg m the SF A states what temporary work she gets. Presumably It IS up to the employer to determme what she gets, The employer does not gl\ e a person a temporary assignment If the assignment does not extend theIr employment Para. 4 11 of the SF A means you have to find a vacancy From January to March, 1997 accordmg to the lIst (Ex. 4), there were agency employees domg the gnevor's Job of Records Search Clerk. The work of agency employees does not create vacancies Their work IS contracted out; there IS no vacancy The employer IS Simply contractmg out data entry and records search work. The word 'funded" m para. ..j. 11 means paid out of the salary and wages budget. There IS no eVIdence of any allocatIOn of money to hire addItIOnal staff Consequently there IS no eVidence of a funded vacancy The Ul110n attempts to have Art 24 of the prevIOUS collective agreement COy er the gnevor However Art, 24 of the prevIous agreement does not cover Regular Part-time emplo\ ees The prevIous agreement gay e Regular Pm1-tlme employees no nghts Their nghts \\ ere found Il1 the Memorandum of Agreement which ceased to be effectl\ e on December 31 1995 Thereafter Art. 62 of the CUITent agreement sets out the nghts of Regular Part-time employees Art 20 1 1 of the current agreement deals WI th all employees \\ho recel\ed notices ofla'y-offbefore March 31 1996 and says that they are entItled to the prO\ ISlons of Art 24 of the prevIous agreement. However J\rt 24 prO\ Ided no nghts to Regular Part-tIme employees Art 62 of the current agreement 1\ do~" not modIfy Art 2-\. of the PIT\ IOU'> agrc~ment It modIfie" Art 20 of thl current agreem~nt A" a r~sult 1\1" Tr~lI1 has no surplus nghts at all The Ul110n submitted that because Art. 62 I of the current agreement mOlh ties Art 20 of the current agreement, the board must Imply that It modI ties A.rt 2-\. of the prevIOus agrecment That IS a stretch beyond all rcasonable l11111tS Even If the board adopted thc Ul11on's submISSIOn, Art. 62 would only permit the gne\or access to Regular ParHl111e posItIOns. and there IS no eVidence that the agency positions were Regular Part-ttme posItions. The deCISIOn of the old Labour Relations TrIbunal. OPSEU and The Crown in Right of Ontario (Alinistn of4griculture and Food and the Crop Insurance CommiSSIOn o{Ontario) May 7 1994 (Abramsky) T 0030/93 deals WIth the defil11tlOn of Ct'own employees under Bill 169 WhICh amended the Public Sen'ice 4ct It 1l1dlcates that If someone IS work1l1g on contract WIth the government, s/he IS not a Crown employee or a publIc servant The pOSItIon they occupy IS not one under the Public Service 40 Weare not deal1l1g WIth any such pOSItIOnS here Mr Dlssanavake's deCISion 111 Couture/Goddard 2093/87 1l1dlcates at p 5 that the employer has the dIscretion to establish a part-ttme or full-tIme posItIon. Ms Tran, at best. has the rIght to be assIgned to Regular Part-time pOSItIOns. There aren't anv Regular Part-time pOSItIons. The employer IS entItled not to create anv The Ul110n argues that the agency positIOns should ha\ e been turned mto publIc service pOSItIons The best nght the gnevor had was under the prevIOUS collectl\ e agreement. to compel the employer to create one Howe\er the gne\ or could not ha\ e compelled the employer to create one under the prevIOUS agreement In these circumstances It IS difficult to understand ho\\ the gnevor's compla1l1t. that the employ er faded to create a pOSItIon from work done by agency employ ees. could arise from an Improper surplus grievance The gnc\ or's argument arises from the Soczal Conrrac [ ic [ and faIlure to assIgn and could not anse from c\ en a IIberalll1terpretatlon of the gnc\ allce q Rcply for th~ (n-II. \ or. Thl un!on doc" not need to h,]\ e the gne\ or em ered b\ Art 24 of the pre\ lOll" .Igrcement a" alleged by the employer Para 4 I I or the SF A n~x 3) applIes to permanent emplo\ ees who havc bcen declared surplus It 1~ not rcstncted to lull-time employees The \\ ordmg of the gnevance should not constItute a bar to consIderatIOn of the ul1lon s arguments Lay-offs place gnevors at a disadvantage They do not have access to data respectIng the use of agency staff Work. WhICh fell wlthm the gne\ or s former Job descnptlOn and \\ hlch the gnevor \\ as qualIfied to do was available That work could have proVided a temporary Job assignment for her Reasons. The gne\ or was employed as a Regular Part-time Records Search Clerk m January of 1996 \\ hen she received the notice oflav-off (Ex 6) The partIes are agreed that she had prey lOusly been a Data Entry Clerk and was qualIfied to do that kmd of \\ ark It was not 111 dIspute that she had the lowest semonty among the group of Records Search Clerks wlthm the Mmlstrv who received then notices of lay -off m earlv J anuarv 1996 At the tlme that she recel\ ed her notice of lav-off the current collectl\ e agreement effectIve Janllarv 1 1994 to December 3 I 1998 had not been ratltied_ Accordl11g1\ the notice of lay -off (Ex 6) adVIsed her that under the tenns of the Memorandum of A.greement bet\\ een Management Board of Cab1l1et and OPSEU slgned December .:j. 1992 as a p,wt-tllne employee she would ha\ e access to the pro\ ISIOlb of A.rtlele 24 of the Collectl\ e A.greement It ad\ Ised her she \\ould 'therefore be pn)\ Jdcd \\ Ith employment protectIOn for SI\. months as outl1l1ed under Article 24 111 On March 31, 1996 the current agreement was ratified The parties addressed their mll1ds to the entItlement of employees who had received notice of lay-off before March 3 I 1996 mArt 20 1 1 with the followll1g wordmg An cmployee who has receIved notice of lay-off pnor to the date of ratificatIOn by the partlcs shall be entitled to the pro\- ISlOns of lormer Article 24 (Job Secunty) WIth respect to employees to \\ ham the prOVISIOns of former Article 24 17 have been applied up to and mcludIl1g the date ofratlticatlOn by the parties, these prOVISIOns shall contmue to apply until December 31 1996 and With respect to any employees to ~ horn such proVISIOns cont1l1ue to apply as of that date the follow1l1g ne\\ proVISIOns apply effectIve January 1, 1997 Under the former agreement, Part C dealt With the entItlement of "Regular Part- time CI\ II Servants Wlth1l1 Part CArt 58 1 prOVided The only tenns of thiS Agreement that apply to employees who are regular part-tIme CivIl servants are those that are set out 111 thiS Part No proVISIOns 111 thIS Agreement other than those 1l1cluded 111 thiS Part shall apply to CIVil servants 111 regular part-tIme posItIons. Art 59 of the former agreement, titled "Other ApplIcable Articles, Regular Part-time CIVIl Servants" set out a lIst of ArtIcles WhICh "shall also apply to regular part-time CIVil sen ants Art. 24 was not among them. These proVISions, and the submISSIOns of the parties, raise the Issue of whether the parties 1l1tended 111 Art. 20 lIto extend the benefits of former Art. 24 to Regular Part-tIme employees who had receIved notIce of lay-off pnor to March 31 1996 or whether they 1l1tended to lImit those benefits to full-time employees The current collectIve agreement, lIke the former one conta1l1S a Part C entItled Regular Part-time CivIl Servants" Art. 54 1 of Part C prOVides The only terms of thiS Agreement that apply to employees who are regular part-tIme Civil servants are those that are set out 111 thIS Part No proVISIOns 111 thIS Agreement other than those mcluded 111 thIS Part shall apply to CivIl servants 111 regular part-tIme pOSItions Art 55 I sets out the Articles which shall apply to regular part-time Civil servants i\rt 20 IS not among them However notwlthstandmg Art 55 1 the parties also agreed to A..rt 62 11 '\R IIC LI 62 - I MPLO, MLNT ST-\BILlTY ()2 I "rtllle 20 (Lmplo\'ment StabIlity) ofthl'> Agreement "hall apply to rlglllar part-time employees \\ Ith the followlI1g modJticatlons (a) \\ hen IdentlfYll1g the \ acancles lI1to \\ hlch the <;urplus regular part-time employee can be assIgned the Lmplo\ er shall use the same cntena used tor full-tIme employees (b) It IS understood that 111 exercls1l1g any of the nghts referred to 111 paragraph (a) above the sel110nty of a regular part-time employee shall be calculated under ArtIcle 18 (Sel11ontv ) 62.2 A surplus regular part-tIme employee shall only have nghts to displace another regular paI.t-tIme employee 62 3 A regular part-time employee who IS laId off shall onlv have recall nghts to regular pan-tIme pOSItIOns. An. 20 I 1 conmlences. The provISIons of ArtIcle 20 apply to am emplovee who receives notIce of la\ -off 011 or after the date of rat(ficatioll (March 31 1996) (emphasIs added) Consldenng Art 62 and the first line of Art 20 1 I together, I conclude that the parties 1I1tended An 20 to apply to anyemplovee" whether full-tIme or part-tIme However the parties specltically lImited the applIcatIOn of Art 20 to employees who receive a notice of lay-off on or after March 31 1996 The gnevor received her notice of lay-off before that date -\rt 20 I 1 contll1ues 4.11 employee who has received notice of lay-off pnor to the date of ratIficatIOn by the parties shall be entItled to the provISions of tormer Article 24 (Job Secunt\) (emphasIs added) Consldenng the above sentence together With the reference 111 the precedll1g sentence to any employee and havll1g construed any employee' to ll1clllde both full- and part- tIme emp]ovees and beanng ll1mll1d that 111 t\rt, 62 the partlc" mandated. through the use ot the \\ ord "hall the applIcation of -\rt 20 to regular part-tIme employ ee" I conLlllcle \2 that thl" "entenu deal" \'vlth both full- and part-tIme employecs exLluded by the pre\ IOU:. sentcncL 3" ,\ re"ult or ha\ II1g recLlvcd notlLe of lay-off before March ~ I 1996 Tim constructIOn I" to bc pret~rred over one that would e'\cIude regular part-tIme cmployees who recel\ ed notIce of lay-off bcfore March 31 1996 from the Art 20 Employment 5tabJllty provIsions a<; wcll as the fortncr Art. 24 Job Secunty pro\ ISlons, Thl object of lI1terpretatlon of the terms of the collective agreement(s) IS to detenmne the l11tentlOn of the partIes and gIve effect to It The parties clearly expressed the l11tentIOn 1I1 Art 62 that Art 20 shall apply to regular part-tIme employees" with certaIn specified modifications To exclude Regular Part-time employees who receIved notice oflay-off pnor to March 31 1996 from entItlement to the prOVIsIOns of fanner ArtIcle 24 which they were given 111 the second sentence of A11. 20 1 1 would render the first lIne of Art 62 1 meanll1gless I e absurd, an effect which should be a\ Olded where the language penmts another Il1terpretatlon, HaYIng concluded that the gnevor was entItled to the benefit of former Art. 24 the Sectoral framework Agreement must be considered. Under para 4 11 of the Sf A, untIl March 31 1996 "where SUItable vacancies eXIst (ed) the gne\ or was entitled to an offer of alternate employment The parties defined SUItable vacancies" as 'funded pennanent and temporary (for penods greater than SIX months) pOSItIOnS" They were SIlent as to the precise meanll1g of "funded" and whether 'funded pOSItIOnS" mcluded both full-time and part-tIme positions and whether the employer was reqUIred to create regular part-tIme posItIons from funded full-tIme pOSItIOnS to satIsfy ItS obltgatIOn of an otTer of alternate employment In the absence of a submISSIOn to the contrary 1 accept the submiSSIOn of the employer that 'funded" means budgeted for 111 the salary and wages budget The eVIdence and submiSSions dId not establIsh whether payments to agencies for the sen Ices of their employees constItute 'funded WithIn the meanIng of Para 4 11 of the SF -\ or withIn the meanIng offered bv the emplover The lIsts prO\ Idcd by the employer (Ex 4 and 5) establIsh that four different agcncy employees \\ere emploved 111 (ompaI1le<; Branch 111 the Data Fntr\ Department m the penod de~lgnatcd OJ 96 - O'i 9(j and that a fifth agency emplo\l?e \\<I'> ,,0 emplll\ed III I , 111L penod dC~lgn,ltcd 0.+ 96 - OX. 96 Thl C\ Idcnce dId not c"tablish the adual "tart and ten11lnatlon date~ at (ompal1les Branch Data I".ntry Department of thosc agcncy employees It Lild not estahlIsh whether thc work was contmuous or \\ hcthcr thcrl wcrl periods dunng 03 96 and 04/96 or between some pOlllt III 03/l)6 and a pOlllt III 04 '96 when an agency emplovec or employees were not workmg at the Mllllstry III Data Entrv It dId not establIsh whether the employment of those five mdlvlduals was full-tllne or part-time As a result, It IS not pOSSIble to conclude that there was Data Entry work of a sIx-month or longer duratIOn, and, If there was such work, whether It was a SUItable vacancy" wlthm the meanlllg of Para. 4 11, such that the gnevor was entitled to It as an "offer of alternate employment" There IS no doubt that It appeared to the gnevor that at the tllne that she recel\ ed her notIce of lay-off and subsequently there was plenty of work at the M1I11stry that she was qualIfied to do From the gnevor s pomt of VIew, It made no sense that she was to be laid off whIle others, employed by an outSIde agency, were domg work that she was qualItied to do wlthm the same premIses at which she worked. Her frustratIon and sense of mJustIce IS qUIte understandable 111 all the CIrcumstances However untIl March 31, 1996 the gnevor's entItlements to alternate employment fell WIthm Para. 4 11 of the SF A, and former Art. 24 Her Job became surplus as a result of contractmg out; dIvestment or comparable transfer of work from the Ontano PublIc Ser\'lce to the pnvate sector" under former Art 24 17 1 as well as due to technologIcal change and the employer s not unreasonable expectatIOn that her services \\ould not be reqUIred beyond July 8, 1996 and ultllnatelv t\ugust 8 1996 When she reCeI\ ed her notice of lay-off she was entItled untIl March 31 1996 to a Job offer m accordance WIth former Art 24 17 No offer of alternate employment was made to her pnor to March 3] 1996 The eVIdence did not establish that the ab5ence of such an offer on the pan of the employer constituted a breach of Art 24 17 t1,.fter March 31 1996 she was entitled to the benefit of Art 62 of the current agreement \\ hlch entitled her to the benefit of the prO\ lSlOns of t1,.rt 20 subject to the 1110dJficatiOns speCIfied III .\rt 62 lllcludmg that "he \\ as entitled to dIsplace only another Regular Part-tIme 1-+ cmployee (Art 62 2) She \\as entItled to a numher of posslhllItles under Art 20 The C\ Itknce dId not estahlIsh that thc employer hreached Its obligations to Ms Tran under Art 20 Nothll1g \11 the former or current collectIve agreement compelled or compels the employer to can e out part of the work that It has decided to give to an agency and Its employees, on the baSIS that It reasonably anticipates the work wIll be of limited duratIOn and reserve and otTer that work to any surplussed Regular Part-tIme employee or employees. While the employer was overly-optimistic as to the date on which Its electromc filll1g system would elImll1ate the need for Data Entry clerks, there IS no suggestIOn on the eVIdence that when It Issued a notice of lay-off to the gnevor ll1 January of 1996 that It dId so arbltranly or ll1 bad faIth, The eVIdence dId not establIsh that the absence of an offer or assIgnment of alternate employment resulted from unreasonable contract admll1IstratIOn To the contrary, the eVIdence suggests that the employer gave the gnevor the notice of lay-off In the SIncere expectatIOn that her seITlces would not be reqUIred after July 8 1996 and amended the notIce ll1 Vle\\ of the time lost to the strIke In 1996 the longest penod of employment of any ll1dIVldual Data Entry agency employee was 5 months (Ex 4) four of the five agency employees ll1 Data Entry worked for up to 3 months. The eVidence suggests that the employer did not offer Ms Tran alternate employment as a Data Entry Clerk because at any gIVen time It expected that the Data Entry work would be of such short duratIOn that It did not constitute a SUitable vacancy .. Within the meanll1g of para. 4 11 of the SF A or an assignment or Job offer wlthm the reqUIrements of Art 24 and para. and after March 31 1996 wIthm the reqUIrements of Art. 20 1" IkuslOn. Rcgretfully for all the ahovc reasons, the gncvance must be dl"mlssed, As the gnevance has been dismissed on the ments, It IS not necessary to address the arguments with respect to tnnell11ess and the contents of the gnevance )-~ a. Dated at Toronto thIS ~ day of February 1998 ---" /' /----- - . . "-=. - - .x-/" c - - .-- L.- --- -" "'--:-..... ' - \ -- """-------. ---- Susan D Kaufm~__....--_ V Ice ChaIr I ()