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HomeMy WebLinkAbout1996-0428AUGUSTINE_SPAANS96 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONEtrELEPHONE (418) 328-1386 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (418) 328-13PfS GSB # 428/96 OPSEU # 96B602, 96B604 IN THE MATTER OP AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Augustine/Spaans) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer BEFORE F Briggs Vice-Chairperson FOR THE G. Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE S Patterson EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 21, 1996 Subsequent to the partles SIgmng a Memorandum of Settlement on March 29, 1996, the employees m the bargammg urnt returned to work after a five and one half week strike Many of the newly negotiated amendments contamed m the Memorandum of Settlement pro\11de for the lay-off, dIsplacement and redeployment nghts of employees In accordance wIth Its clearly stated mtentIons, the Employer sent out notIces of lay-off to numerous employees There are two gnevances wInch allege that the Employer failed to proVide seven days for employees to notIfy the Employer of therr willmgness to bump mto a pOSItIon outsIde of the geograpIncal boundary of forty kilometres AccordIng to Joseph Augustme and Michael Spaans, the Employer only allowed them until the end of the followmg busmess day to make therr electIon. By way of remedy they ask for SIX addItional days to respond, for a total of tbrrteen days. At the heanng, the Umon altered the gnevance and the remedy sought. The Umon asked the Board to find that the collectIve agreement had been breached and to make a declaratIon to that affect. Further, the Umon asked the Board to order that because of the procedural breach, the process must begm agam. The partIes agreed to the followmg facts 1 The gnevors are employed WIth Mimstry of Natural Resources m the Kapuskasmg offices - and both receIved a notIce of surplus, 2 On May 16, 1996 the gnevors receIved a letter - AppendIx A & B advIsmg of surplus and as well that there are no vacanCIes m the Mimstry to whIch they can be asSIgned, 3 The May 16,1996 notIce also adVIses the gnevors oftherr optIons as IdentIfied m the CollectIve Agreement under ArtIcle 24 4 1 e-f and 24,5, 4 The May 16, 1996 notIce dIrects the gnevors to conSider therr options and respond on the enclosed form to therr manager by 4 p.m. May 17, 1996, 5 ArtIcle 24 4 lee) does not Identify a tIlDe penod for whIch employees are to follow for notificatIon to the employer of therr desrre to seek POSItiOns outsIde 40kms, 6 The partIes agreed as IdentIfied m a May 16, 1996 memo from Don Chtro, Drrector, 1 .~ , .- 2 Collectlve Agreement Admuustration - Management Board Secretanat (Appendix D) that employees would be gIven 3 workIng days to mdicate therr WIsh to seek a posItIOn outside 40km as per 24 4 1 (e) On May 16, 1996, all MInlstry of Natural Resources staff received the followmg e-mall memo from Ron Vrancart, Deputy MInlster wluch states Today MNR managers wormed 902 classified employees whose positiOns are affected by our 1996/97 expendIture reductiOns. About 10 percent of these employees have been assigned to another MNR position, effective mnnedIately The rest were told therr positions are declared surplus. These reductIons are part ofMNR's new busmess drrectiOns, wluch focus our actlVIties on core bus mess and pnontles, and contribute to the government's efforts to restructure and moderrnze the Ontano government. Today s staffmg actiOns are conSistent WIth the OPSEU collective agreements, government staffing directlves, the PublIc SeIVlce Act and other labour relatiOns reqwrements. Each surplus employee was provided With a personal fmancial statement and a package outlIrung nghts and entitlements. About 200 OPSEU surplus staff are eligible to dIsplace a Jumor employee Wltlun 40 kilometres oftherr worksite, and have a week to decide whether to do so. Other surplus OPSEU staff have until 4 .00 pm Fnday May 17 to worm therr manager whether they WIsh to explore dtsplacement opportunIties beyond 40 kilometres of therr worksite or, if eligible, to another rmrustry Wlthm 40 kilometres. AMAPCEO pOSitiOns affected by MNR's 1996/97 expendtture reductions were not part of today's exerCise. The rmruStry is workIng to determme an unplementatiOft date for these staffmg actions. Staffwho Will be asked to relocate as part ofMNR"s mfrastructure reductiOns (office/facilIty closures) will be mformed m the near future on a site-by-site basiS. Today has been a difficult day for everyone at MNR. We need to be aware of our own feelmgs and needs, as well as sensitive to those of our colleagues, as we move through tlus tranSition penod. The letters sent to the gnevors explamed that there was no employee WIthm 40 kilometres for them to displace ill accordance the collecnve agreement. TheIr remammg optlOns were set out and It stated, ill part: Please consider your OptiOns carefully and return the enclosed form to your manager no later than 4 pm on May 17, 1996 to mdIcate your deCiSion and/or proVide the addItiOnal mformatiOn requested, Failure to receive the form Witlun the allotted tune frame wIll be deems as your 3 havmg given up your nght to dIsplace and optmg for redeployment under SectIOn 24 5 On May 16, 1996, there was dIscussIOn between the partIes and an agreement was reached regardmg the matter of tune allowed for employees to consIder theIr InltIal optIons AccordIngly, Mr Cwo wrote the followmg to Mr GaVIn Leeb, representatIve of the Umon. RE ARTICLE 24 4 I(E) OF THE COLLECTIVE AGREEMENT ThIs WIll confIrm our recent telephone conversatIOn wherem I advised you that the partIes mutually agreed that for purposes of applymg Article 24 4 lee), employees are to be given 3 workmg days to mdIcate that they wIsh to be placed beyond the 40km radIus of thelf headquarters. I wIll forward tlns memo to our Corporate Redeployment office and the rmmstnes' human resources departments. NotwIthstandIng that agreement, on May 17, 1996, Mr Chrro sent a memorandum to Gabnella Zillmer, DIrector of Human Resources for MNR. That memo stated. RE NOTICE REQUIREMENTS - ARTICLE 244 I(E) OPSEU COLLECTIVE AGREEMENT Trus will confIrm our dISCUSSIOn of tlns mornmg wherein I adVIsed you that It would be acceptable for your nnmstry to meet ItS oblIgatIons under the above article m applymg (3) days for employees to make thelf electIon. In your IIll111stry's case, tlus would mean that employees who have received the recent notIce would have until the end of Saturday to notIfy your Il11111stry of thelf electIon. In conversatIons WIth OPSEU, It would appear that tlus would be acceptable given the large numbers mvolved m your rmmstry and the extraordInary attempts you are makIng m bemg available to employees throughout the weekend. I would suggest that we may have to use some dIscretIon m the applIcatIon of the (3) days for unIque clfcumstances. May 16, 1996 was the Fnday precedIng the three day hohday weekend. The gnevors were asked to adVIse of theIr decIsIon by Saturday of the long weekend. It was an agreed fact that notwIthstandIng the above memorandum, the MinIstry accepted responses up to the end of busmess on Tuesday May 20, 1996 However, that extenSIon of tune was not commumcated to employees - ,.. 4 UNION SUBMISSIONS It was the Umon's SUblll1SSIOn that there was a clear breach of the collecove agreement and the subsequent agreement of the partIes regardmg the length of tune for employees to respond to an offer of a further search for dIsplacement elsewhere m the Provmce The vIOlatIOn of the agreement IS procedural and therefore reqUITes a substanove remedy To proVIde only declatory relIef m these CIrcumstances renders the breach meamngless Mr Leeb, for the Umon asserted that once the agreement was made WIth the Umon regardmg employees' havmg three workmg days to respond to the Employer, the Employer had an obhgaoon to commumcate that mfonnaoon to the employees who had been preViously told that a response was reqwred Wlthm a day There was no suggestIon from the Employer that any attempt was ever made to send out that mfonnaoon to employees. That faIlure, m the face of an agreement on process, must bnng about a remedy for the gnevors The U mon urged that the remedy necessary to make the gnevors whole IS to order the Employer to go through the process agam. The Employer's failure to comply WIth the agreed upon process put the gnevors m a dIfficult posIoon. No one can know what would have happened, that IS, how the gnevors would have responded, If they had been gIven adequate tune to contemplate the offer bemg made to them. The process has to begm agam m order for the gnevors to be afforded the amount of tune for deCISIOn makmg that the partIes agreed upon. The Umon remmded the Board that the offer of a Job IS done on a "snap shot" baSIS Accordmgly, the gnevors may well have been offered dIfferent posIoons If they had been given three days to respond as the partles had agreed upon. Perhaps other employees would have reSIgned If they had more opportunIty for thought. Indeed, It was suggested that there . 5 IS eveI)' reason to beheve that the consequences would have been dIfferent for the gnevors had they been gIven the benefit of the full length of tIme to consIder the matter Mr Leeb conceded that the gnevors could have been placed m a more dIsadvantageous posIt1on. However, a dIsadvantage caused by an Employer breach of the agreement IS substantially dIfferent than a dIsadvantage cause by serendIpIty Ms Story-Paul, co-counsel for the Dmon, likened the matter at hand to gnevances where employees have been dIscharged WIthout Dmon representat1on. As m those void ab initio cases, the Employer had Violated a procedure establIshed to protect the nghts of employees The Dmon rehed on Re Government of Province of British Columbia (Personnel Services Division) and British Columbia Government Employees' Union (Canham) (1991), 21 L.A.C (4th) 325 (BIrd), Re Canada Post Corp. And Canadian Union of Postal Workers (Gibson) (1992), 29 L.A.C (4th) 7 (Burkett), and Re Centennial College and Ontario Public Service Employees Union (August 3, 1983), unreported (Weatherill) In each of those deCISIOns, It was determmed that the procedure was Violated and that m an effort to make the gnevor whole, the act10n taken must be rescmded. In the present mstance, the not1ces must be re-Issued and the process started anew EMPLOYER SUBMISSIONS Mr Patterson, for the Employer, subrmtted that there had been neIther a breach of the agreement between the Mr Chrro and Mr Leeb nor of the collectIve agreement. However, m the event that the Board determme that the gnevances should be upheld, the employer IS of the View the gnevors would be suffiCIently served If the Board's remedy was lumted to a dec1arat1on. The Employer suggested that It would be of aSSIstance to put thIs matter mto context. Nme ~ 6 hundred employees receIved a notIce of lay-off on May 16, 1996 Of those, many employees mcludmg the gnevors, also got notIce that there was no pOSItIOn aVallable for them wIthm forty k1lometres Mr Leeb and Mr Chrro came to therr agreement after the lay-off letters were sent to employees on May 16, 1996 The partIes are gomg through the new lay-off proVIsIons m the collectIve agreement for the frrst tune The Mffilstry of Natural Resources IS a lughly decentrahzed employer and, given all of the foregomg, It IS not surpnsmg that the procedure rmght not be followed exactly as set out. Indeed, llTespectIve of any attempt whIch may have been made to ensure that employees knew of the extensIOn m tune, It IS possIble that some employees rmght have been rmssed. In these cIrcumstances, the Employer's actIons were not unreasonable. TIns IS not a gratwtous VIOlatIon of the collectIve agreement. Further, the Employer's response was appropnate, that IS, to allow responses beyond the tune set out m ItS letter That actIon satIsfies the Employer's obhgatIons as set out m the agreement. Therefore, m the event that the Board IS not of the VIew that the Employer's actIons were sufficIent to meet ItS obhgatIons under the collectIve agreement, gIven that there IS no egregious breach of a long standmg nature, the appropnate remedy would be to make a declaratIon. Mr Patterson noted that the cases proVIded by the Umon regarded breaches of a substantIve nght set out m a collectIve agreement, not a procedural nght. SubstantIve nghts, such as the nght to umon representatIon at the tune of dIscIplme, cuts to the very heart of the employer/employee relatIonsh1p The Employer urged that the board must look to the appropnate balance between the labour relatIons pnontIes of the partIes. SpecIfically, the Board must consIder what the gnevors have actually lost m the CIrcumstances of tlns case and whether It must be redressed. The Umon's requested remedy will cause dIsruptIon and wIll, albeIt madvertently, proVIde potentIally better nghts to some employees over others given the "snap shot" approach to 7 displacement nghts In the fmal alternatIve, the Employer asserted that m the event I fmd that there IS a breach wlnch must be remedted by some faslnon beyond a declaratIon, I should proVIde the gnevors WIth an opportunIty to change therr mmd on the offer that was made to them m May 1996 Such a remedy would make clear that the Employer did not comply with the process It would allow the gnevors to be made whole, as requested by the Umon, but It would neither cause dtsrupt:J.on nor treat the gnevors preferentIally by allowmg the process to begm agam. In reply, Mr Leeb subrrutted that the facts of the mstant case do not allow the Employer to aVOId remedial actIon. The Employer cannot VIolate the collect:J.ve agreement, even If that breach was madvertent, and face no penalty DECISION IrrespectIve of whether the three workIng days that the partIes agreed upon are mcluslVe or exclusive of Saturday and Sunday, the Employer VIolated the agreement by obhgmg the gnevors to respond by the end of busmess on Saturday May 17, 1996 WinJe I apprecIate that the Employer accepted responses untIl the end of bus mess on Tuesday May 20, 1996, the failure of the Employer to not:J.fy the gnevors of tlns extenSIOn, was a breach of the agreement. The matter of remedy IS the real Issue for tlns Board to determme m tlns matter The gnevances are mdlVldual and therefore, generally speakmg, the remedy should redress the gnevor's mdtVldual clfcwnstances Wlthm the Board's junsdlCtIOn. The Employer urged that a declarat:J.on would suffice m tlns matter I thmk not. 8 It was saId m Re Ontario Public Service Employees Union and Carol Berry et al and The Crown in Right on Ontario (Ministry of Community and Social Services) DIVIsIonal Court, (March 13, 1986), unreported (Reul, J), at page 13 that "It IS a commonplace of the law that the eXIstence of a nght lIDphes the eXIstence of a remedy" It was later stated, m consldenng the Gnevance Settlement Board's fallure to allow a gnevance or remedy havmg made a fmdmg of a VIolaoon of the collecove agreement, at page 15, "ItS JunsdlctlOn IS unrestncted. Its mandate IS remedial. In makmg the declslOn It made the Board refused to decide the matter, It SlIDply fmessed It." In my VIew, m tlus matter, It would be sufficient, m accordance WIth Re Berry (supra), for this Board to uphold the gnevances and slIDply make a declaratIon that the Employer breached the agreement. However, m the absence of a compellmg reason to refram from awardmg mdIVIdual redress such as an extended passage of tune, a declaraoon Without specific remedy "fmesses" thIs Board's mandate In the mstant matter, there was no such compelhng reason offered to refuse mdIVIdual redress There was no threat of either adrmmstraove chaos or orgarnzaoonal repercusslOns that Inlght even arguably outweigh the nghts of the gnevors The Umon conceded, given the "snap shot" affect of Artlcle 24, the gnevors Inlght be disadvantaged by begmmng the process agam. Presumably, the avallable posloons that Inlght have been offered to the gnevors m May of 1996, are no longer avallable However, due to crrcumstances It Inlght be that a posloon IS presently available that would be of mterest to the gnevors. Accordmgly, I fmd that the Employer VIolated the agreement by failmg to proVIde three workmg days for the gnevors to respond to therr surplus notIce The gnevors are to be given the optlOn of either askmg for the procedure to be re-run or, acceptIng the offer that was I 9 made to them m May of 1996 To be clear, they cannot elect to have to process re-run and then elect to accept the posItIon that they were offered m May of 1996 The gnevors shall be gIVen three workmg days to make thelT electIOn m tlus regard. I wIll remam seIzed m the event that there are dIfficultIes unplementmg tlus deCISIOn. Dated m Toronto, tlus 17th of July, 1996 I \- I pf~ I ! (II u/~ ""'/'/ /' FelIcIty D Bnggs Vice Charr