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HomeMy WebLinkAbout1996-0484UNION96_07_14 ~. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 GSB # FACSIMILEfTELECOPIE (416) 326-1396 484/96 OPSEU # 96U057 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Management Board Secretariat) Employer BEFORE F Briggs Vice-Chairperson FOR THE G. Leeb GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE D Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 20, 1996 -- , The partJ.es sIgned a Memorandum of Agreement on March 29, 1996 winch brought an end to a five and one half week publIc seTVlce strike. One of the major Issues between the partIes was the nnpendmg lay-ofIs winch the government had preVIously announced It mtended to nnplement. The new collectIve agreement proVIdes a new process and procedure for the lay- offs and subsequent dtsplacements amongst other proVISIOns On June 5, 1996, the Umon filed a gnevance wluch alleged that "the MImstnes are VIolatIon of ArtIcle 24 4 1 m that surplus employees are not consIdered under ArtIcle 24 4 1 f) If an offer IS rejected pmsuant to 24 4 1 e)" By way of remedy, the Umon asked for "retroactIve applIcatIon of the Board's deCISIOn m tlus matter; alllay-offs dtsplacements, aSSIgnments and redeployments affected by tlus matter be reVISIted, any other remedy that the Umon adVIses and/or the Board deems Just and eqUItable m the cIrcumstances" However, at the heanng the Umon mformed the Board that It was requestIng only a declaratIOn that the collectIve agreement had been VIolated and for the Board to remam seIzed. The relevant proVISIOns of the collecnve agreement state 241 Where a lay-off may occur for any reason, the IdentificatIOn of a surplus employee ill an achmmstratlve dtstnct or umt, illstltutlOn or other such work area and the subsequent dtsplacement, redeployment, lav-off or recall shall be ill accordance WIth semonty subject to the conmtlons set out m tlus ArtIcle. 244 DISPLACEMENT 24 4 1 An employee who has completed lus/her probatIOnary penod, who has received notIce oflay-offpursuant to Sub-sectIon 24.2, and who has not been aSSigned ill accordance With the cntena of 24.5 to another poslDon shall have the nght to msplace an employee who shall be Identified by the Employer m the follOWIng manner (a) The Employer will Identify the employee With the least seruon~ ill the same classificatIOn and the same l1UI1lStrv as the employee's surplus pOSitIOn. If such employee has less semonty than the surplus employee, slhe shall be dIsplaced by the surplus employee prOVided that: (I) such employee's headquarters IS located \\1thm a forty (40) kilometre I - I .,.- 2 radIus of the headquarters of the surplus employee, and (ii) the surplus employee IS qualtfied to perform the work of the Identified employee. (b) If the surplus employee IS not quahfied to perform the work of the least seruor employee IdentIfied under paragraph (a) above, the Employer will contmue to IdentIfy, m reverse order of semonty, employees m the same claSSIficatIon and 10 the same mmIstry until a less seruor employee is found Wlthm forty (40) kilometres of the surplus employee's headquarters whose work the surplus employee IS quahfied to perform. (c) FaIlmg dIsplacement under paragraphs (a) or (b) above, the Employer will IdentIfy, m reverse order of seruonty, employees m the same classes m the same class senes m descendIng order until an employee With less seruonty IS found m the same llliDlStry Wlthm forty (40) kilometres of the surplus employee's headquarters. The Identified employee shall be dIsplace by the surplus employee proVIded he/she IS quahfied to perform the work. (d) Failing dIsplacement under paragraphs (a), (b) or (c ) above, the Employer will reVIew other classes whIch the employee held eIther on a full-time baSIS, or who performed the full range of Job dutIes on a temporary baSIS for at least twelve (12) months m the same InIruStry Wlthm forty (40) kilometres of the surplus employee's headquarters. The Employer will IdentIfy, m reverse order of seruonty, a less seruor employee m the class With the maxnnum salary closest to but not greater than the maxnnum salary of the surplus employee's current clasSIficatIon. The IdentIfied employee shall be dIsplaced by the surplus employee proVIded he/she IS quahfied to perform the work. (e) Fallmg dIsplacement under paragraphs (a), (b), (c), (d) or (e) above, If the employee requests, the Employer will repeat the steps speCIfied m paragraphs (a), (b), (c) and (d) With respect to pOSitIOns beyond a forty (40) kIlometre radIus oflus/her headquarters No relocatIOn expenses will be paId. (f) FaIl10g dIsplacement under paragraphs (a), (b), (c ), (d) or (e) above, the Employer will Identify, m reverse order of seruont), a less seruor employee who IS (I) m another llliDlStry; and (ii) whose headquarters IS wIth10 a forty (40) kilometre radIus of the dIsplacmg employee's headquarters, and (ui) whose posItion the dIsplacmg employee preVIOusly held eIther on a full-time baSIS, or who performed the full range of Job duties on a temporary baSIS for at least twelve (12) months m that InIrustry; and - 3 (iV) If the employee previously held more than one posItion m that mmistry, the posItion With a maXllllwn salary closest to but not greater than the maxnnum salary of the dIsplacmg employee's current classification, (g) No later than one (I) week followmg commencement of the notice penod, the Employer Will advise the surplus employee of the positIOn mto wluch he/she IS ehgible to dIsplace. (h) The surplus employee must mdicate ill wnbng to the Mimstry/ Agency DIrector of Human Resources lus/her mtentlon to dIsplace the employee Identified pursuant to paragraph (a), (b), (c), (d), (e) or (t) above, as apphcable. Wntten mtentlOn to dIsplace must be received by the MinIstry/Agency DIrector of Human Resources no later than one (1) week followmg the date the surplus employee received adVice that he/she was ehgible to dIsplace an employee pursuant to Sub-section 24 leg) above. (I) An employee who does not mdicate m wnbng to the MinIstry/Agency DIrector of Hwnan Resources lus/her mtentlon to dIsplace Withm the time penod stipulated by Sub-sectIOn 24 4.2(h) above shall be deemed to have gIVen up lus/her nght to dIsplace and opted for redeployment under SectIOn 24.5 244.2 The first employee who IS displaced by an employee exerCismg lus/her nght to dIsplace under Sub-section 24 4 I will have dIsplacement nghts. The employee dIsplaced by the first displaced employee will also have dIsplacement nghts but the employee he/she subsequently dIsplaces will not have any such nght. 244.3 An employee who is displaced by an employee who exerCise lus/her dIsplacement nght under tlus SectiOn shall receive notice of lay-off or salary contmuance, at the Employer's dIscretion. The displaced employee's notice penod or salary contmuance shall be for a SiX (6) month penod. 24 4 4 Section 5 4 of Article 5 (Pay AdnumstratlOn) shall not apply where an employee dIsplaces a less SenIor employee pursuant to Sub-sectlon 24 4 l(c), (d), (e) or (t) above, save and except that SectIOn 5 4 of Article 5 shall apply for the balance of the employee's notice penod only The partIes are agreed that If there IS no pOSItIon for an employee as set out m Artlc1e 244 lee), the Employer then proceeds to meets ItS obhgatIons under Artlc1e 244 l(t) However, It was the posItlOn of the Dmon that the Employer IS obhged to conSIder what would happen to an employee under 24 4 l(t) mdependent of what happens under 244 lee) To be clear, both exerCIses occur srmultaneously and If a pOSItIon IS found and offered m accordance With Amcle 244 lee) and subsequently rejected by an employee, the Employer -" ~ 4 IS obhged to offer a poslhon m accordance WIth Arttcle 244 l(f) It was the Employer's poslhon that an employee cannot refuse a poslhon that IS offered under 244 l(e) and then be entItled to the proVIsIOns of ArtIcle 244 l(f) Indeed, If a poslhon ansmg from Arttcle 244 l(e) IS refused, the employee has only redeployment nghts m accordance With Arttcle 245 UNION SUBMISSIONS Mr Leeb, for the Umon, mformed the Board that employees have three days to make theIr decIsIOn regardmg whether they are willmg to take a poslhon wluch IS beyond forty kIlometres of theIr home Makmg that decIsIon could potentlally change theIr lIves substantlally Employees do not have a semonty hst posted nor do they receIve nohce of the extent of theIr bumpmg nghts to assIst them m theIr deCISIOn. Therefore they do not know If poslt1ons mother Mrmstnes are available WIthIn theIr own area m the event they would quahfy for those Jobs The Umon asserted that It IS because of thIS dearth of avatlable mformatIOn that people are likely to elect to take therr nghts under Arttcle 24 4 1( e) on the basIs that a Job far away from home IS better than no Job at all. Moreover, It 15 possible that employees would take posItlons hundreds of mIles from therr home when a posItlon IS avaIlable wlthm then area m another Mffilstry Mr Leeb contended that there are sectlons of ArtIcle 24 wluch have a "deemed consequence", and the partles failure to msert such a provIsIOn mto ArtIcle 24 4 1 (e) must lead to the determmat10n m the Umon's favour ArtIcle 2445 IS qUIte snndar to ArtIcle 24 4 1 ( e) In that both set out the Employer's obhgatlOns after an employee request The consequence of ArtIcle 24 4 5 IS clear The rules of mterpretat10n must lead thiS Board to - " 5 fmd that the failure of the partIes to state any such a consequence means that an employee IS not prohibIted from nghts under Arttcle 244 1(f) after refusmg a posIoon under ArtIcle 244 l(e) The Dmon conceded that a httle more work would be requIred If the Board were to uphold the gnevance However, the Dmon suggested that the Employer can comply WIth ArtIcle 24 4 l( e) and (f) snnultaneously That allows the Employer to offer the employee a posItIon m accordance wIth ArtIcle 24 4 l(f) nnmedtately after the posIoon under ArtIcle 24 4 l(e) IS refused. Tlus would take mto account any concern the Employer mIght have regardmg addItIOnal tune bemg reqUired. Employees ought not to be penalIzed for consIdenng opportumoes for pOSItIOns further than forty kilometres. EMPLOYER SUBMISSIONS Mr Costen, for Employer, began by contendIng that the complete answer to the Dmon's argument that ArtIcle 244 l(e) does not have a "deemed consequence" IS to be found m ArtIcle 24 4 1(1) wluch has a reference back to sub-secoon (h) These clauses state a person must mdtcate m wntmg therr mtenoon to dIsplace and the consequence of a faIlure to do so The word "refuse" IS not used but the refusal IS subsumed by the employees faIlure to dIsplace The Employer argued that the collectIve agreement proVides that an employee who deCIdes not to take a posIoon offered under ArtIcle 24 4 I (e) IS enotled only to Redeployment nghts under Art1cle 2 4 4 5 The language of the preamble to ArtIcle 24 states that there IS a dIfference between nghts under the exprred collecove agreement and the newly ratIfied agreement. ~.- / ,.- 6 Mr Costen asserted that Art1cle 24 4 1 IS clearly a process one goes through m the order m appears. If a resolUTIon IS not found under subsectIon (a), then (b) IS consIdered. If there IS a failure Wlder subsectIon (b) to proVIde a posItion then (c ) IS consIdered and so on through the artlcle Wltll one amves at subsectlon (e) At tlus tune an employee has a chOlce They can elect to go through the entrre process begmnmg at subsectIon (a) but for posltlOns beyond forty kilometres. An employee IS only entItled to the prOVISIOns of subsectlOn (f) If there has been a fallure to prOVIde a pOSItIon under Art1cle 244 lee) or If the employee elected to by-pass Art1cle 244 lee) The pre-condltlOn for tnggenng ArtIcle 24 4 l(f) has not been met If the Employer fOWld a pOSItIon for an employee under ArtIcle 24 4 I ( e) The Employer argued that there IS no dIfference between the mstant gnevance and the matter at Issue m The Crown in Right of Ontario (Ministry of Natural Resources) and OPSEU (June 17, 1996), unreported (Bnggs) Moreover, there IS a partIcular need for conSIstency regardmg the apphcatIon of Art1cle 24 at tlus tune and a failure to prOVIde It would be partIcularly detrunental to the process and the partIes The Employer conceded that there IS httle tune for employees to make therr eleCTIon. However, It IS not as dtfficult as the Dmon would have the Board beheve The government was clear for a conSIderable tune that there would be sIgmficant lay-offs Employees would generally know that they were at nsk m terms of therr Job secunty even pnor to bemg offiCIally mformed. PractIcally speakmg, the dtfficulty WIth the Dmon's posltlOn IS that the Employer IS oblIged to respond nnmedIately after the failure to fmd a pOSItIon m accordance WIth the prOVISIons of Arttcle 24 4 1 The Employer cannot walt for people to be mformed of theIr nghts Wlder subsectIon (e) and stlll proVIde nghts m accordance WIth subsectIon (f) - ~ 7 DECISION After careful consIderatIon of the SUbmISSIOnS of the partles, I am of the VIew that the gnevance must fall. The Umon urged the Board to fmd that the Employer IS obhged to conduct a search for dIsplacement under ArtI.cle 24 4 lee) and ArtI.cle 24 41(f) at the same tnne Accordmg to the Umon tlus would allow the employee the opportumty to be offered a poslllon outsIde the forty kiJometres and, :tf the employee rejects that offer, be munedlately offered an opportumty Wlthm another Mimstry m accordance Wlth ArtIcle 24 4 2(f) I cannot accept tlus. If two actIons were to be conducted concurrently, the partles would have saId that clearly and they dtd not. Indeed, ArtI.cle 24 4 I(f) IS predtcated on there bemg a faIlure to dIsplace another employee The Umon also argued that the partIes faIled to msert a deemed consequence proVIsIOn and therefore there IS no consequence to the employee to refuse a poslllon offered under ArtI.cle 24 4 I (e) While I agree that there are proVIsIOns m the newly negOllated agreement wInch have stated the consequence of an actIVIty or lack thereof, the failure of the partles to mclude one m ArtI.cle 244 I(e) IS not detenmnatIve of tlus matter Indeed, there IS no deemed consequence of any of the subsectIons oftlns artlcle untIl ArtI.cle 24 4 I(h) WhICh states that an employee's faIlure to mdIcate m wntmg to the DIrector of Human Resources of Ins/her mtentlon to dIsplace shall be deemed to mean that the employees has gIVen up the nght to dIsplace The preamble m ArtIcle 24 4 I states that employees shall have the nght to dIsplace "an employee who shall be IdentIfied by the Employer m the followmg manner" What follows, as can be seen by the language set out above, IS the process the Employer IS obhged to follow m amvrng at the IdentIficatIon of a posItlon to offer for dIsplacement. There are no "eIther/or" provIsIOns as IS berng suggested by the Umon. The language does not allow for - 8 an employee to refuse an offer then move through the process to the next step If that were the mtentIon of the partIes, the language would have clearly reflect that mtent1on. Mr Costen referred to the artIcle as havmg a cascadmg effect. I agree One moves through the process until there IS a posItIon IdentIfied by the Employer If employees do not like the posItIon that is offered then they are entItled to the nghts of Re-deployment found at Article 245 However, to be clear, employees can elect to forgo the search for a posItIon outside of the forty k110metre boundary The Employer suggested tlns Issue IS sunilar to the matter m dIspute consIdered m an earlIer deCISIOn of thiS Board regardmg layoffs I agree In the mstant matter, as m the first deCISIOn dated June 17, 1996, the Umon made arguments of eqUIty whtch I have some sympathy for However, they are not appropnate conSideratIons for a RIghts Board of ArbitratIon. The sparsity of tune for employees to make therr electIon or the amount of trme that would be requrred to comply WIth the Umon's pOSItIon are not relevant conSideratIons for tlns Board. The partIes negotIated a scheme for the orderly lay-off, displacement and re- deployment of thousands of employees. There can be no doubt that It was a huge task and Its completlOn was a credit to the partIes. F or all of those reasons, the gnevance IS diSmIssed. Datejd mto~onto thIs 14~ (daY of !uly, 1996 /~ '\ // \, ./ / --11- \ > I '-1) f; /jjj!}: ~-,~ / ; F ehclty D Bnggs ! Y- )1 VIce ChaIr