Loading...
HomeMy WebLinkAbout1996-0570GIANNOU97_05_08 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 jZ8 TELEPHONE/TELEPHONE (418) 328-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (418) 328-1398 GSB # 570/96 OPSEU # 96D619 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Giannou) Grievor - and - the Crown in Right of Ontario (Management Board Secretariat) Employer BEFORE D.J.D Leighton Vice-Chair FOR THE N Luczay GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING December 11, 1996 INTRODUCTION Ms Anna Giannou was working as an office products clerk at the Office Administration 6 level, Management Board Secretariat, when she received a surplus notice on August 16, 1995 with a layoff date of February 16, 1996 Her position along with eight others in the Branch was declared surplus in accordance with Section 22(4) of the Public Service Act (the Act) The notice of surplus provides in part The government is implementing a series of strong measures to control the size of the public debt The Secretariat like other ministries is reviewing its areas of business to determine those that might be downsized or eliminated to meet the government s savings target planned for this fiscal year Divisional Support Branch is one of several areas within Management Board Secretariat which will be impacted as a result of these reviews The resulting change in business direction has caused us to declare your position of Office Products Clerk at the Office Administration 6 level, surplus to the government's needs, effective August 16, 1995 This is not a reflection on your performance or that of your colleagues On September 6, 1995 Ms Giannou informed her employer that she was resigning from the Ontario Public Service and taking II option A" which entitled her to the following' $3,000 education fee, two weeks salary for each year's service to a maximum of 12 weeks, and one week's salary for each year of service On April 29, 1996 she filed a grievance with the Grievance Settlement Board (the Board) claiming unfair layoff and requesting reinstatement. At the outset of the hearing into this matter, Counsel for the Employer, Mr Marvy, raised two preliminary motions to dismiss the grievance as inarbitrable 1) the grievance was not timely filed, and 2) the Board has no jurisdiction to review a Section 22(4) release from employment when the union has not alleged any bad faith by the Employer Evidence was presented for the timeliness motion. However both parties agreed to put the timeliness motion aside until the Board ruled on the preliminary jurisdictional motion. 2 .-- Counsel for the Employer argued that this Board has no general jurisdiction to review a release from employment under Section 22(4) of the Act He argued that for the Board to take jurisdiction the release must be contested and the union must allege bad faith. Mr Marvy gave notice to the Union that he would raise this motion at the hearing and asked for particulars of the grievance which alleges only "unfair layoff Particulars were not provided, but it is clear that the grievance is based on the Grievor's understanding that someone else or others are doing her job Counsel for the Employer argued that for the purposes of this motion the Board could take it that 100% of her job had been dispersed although, in reality, Counsel argued that it is approximately 65% In order for this Board to take jurisdiction and review this release there must be an allegation of bad faith. Although Counsel asked for particulars, there has been no particulars alleging that the Employer acted in bad faith in making the decision to release the Grievor, nor has there been an allegation of a breach of the collective agreement. Counsel for the Union agreed that Section 22(4) of the Act applied in this case Mr Luczay argued that the Grievor's duties have not disappeared, therefore management's exercise of its powers under Section 22(4) was not proper Thus it was a dismissal for cause Counsel argued further that the Grievor s duties have not disappeared although the surplus letter noted that the position was going to be abolished. He argued that the issue then is whether or not the facts will show if the position was rightly abolished. By proceeding to hearing on the merits it will be shown that the exercise of management rights by the Employer was unreasonable Addressing the issue of providing particulars, Mr Luczay stated that the nature of the grievance was presented at stage 2, and therefore particulars were provided then. Counsel argued that the bad faith may be the misrepresentation that the job had disappeared The Union conceded that they have the onus to prove that the release was not bonafide Counsel argued that the only bonafide release under : Section 22(4) is for a shortage of funds, or that the position is eliminated. Further it is bad faith to misrepresent that the position is no longer needed when the work is still being done 3 In reply, Counsel for the Employer argued that the position had been abolished and the letter informing the Grievor of her release evidences the position was abolished. Counsel argues that it is immaterial that some or part of her duties are being continued. The fact is that the position has been abolished. Counsel argued that Union Counsel was equating abolishing the position with abolishing the duties which is not necessarily so DECISION Having carefully considered the submissions of the parties, I have decided to dismiss the grievance There is no dispute between the parties that a release from employment pursuant to Section 22(4) of the Act is not generally reviewable by the Board. 22(4) A deputy minister may release from employment in accordance with the regulations any public servant where he or she considers it necessary by reason of shortage of work or funds or the abolition of a position or other material change in organization. However, if there is an allegation that the release was not bonafide, or was a disguised dismissal, this Board has the jurisdiction to review the grievance as held in Leslie, 80/77 (Adams) The Union conceded in argument that they have the onus to prove that the release was not bonafide However, the Union has not made any allegations of bad faith. The Union submits that some of Ms Giannou s job is still being done, and nothing more As Counsel for the Employer argued, even if this Board was to take it that 100% of the Grievor's job was reallocated to others, that is not evidence of bad faith. Further, there was no allegation that there was a hidden agenda or any bad faith with regard to the Grievor as an individual. There was nothing to suggest that Ms Giannou was anything but an excellent employee Her surplus letter made it clear that she should not take her release from employment as a reflection on her performance, and noted that it was no reflection on any of her colleagues who were 4 -- also surplused at the same time in the Divisional Support Branch of the Management Board Secretariat. Cases cited by Union Counsel were of no assistance It is clear that this Board has taken jurisdiction over grievances, where surplused employees grieved their release pursuant to Section 22(4) of the Act In Babb et a1., 1173/88 (Wilson) the grievors' work had been transferred from one ministry to another branch within government The Board held that the work was transferred to a new ministry and the grievors were entitled to move with the work. This is not the case before me Because of the widespread government cutbacks and general downsizing the Grievor s job was eliminated along with eight others The work of the branch was reorganized. There is nothing to suggest any bad faith in the decision to reorganize and eliminate the Grievor's position. Further, the union made no claim that the collective agreement had been breached - specifically that Art. 24 was not applied properly In Garrison 1229/94 (Kaplan), where an unclassified employee grieved that he was denied a promotion, the Board held that the grievance was not arbitrable unless the union alleged that the employer acted in bad faith. Vice-chairperson Kaplan dismissed the grievance on the preliminary motion of the employer because there was no basis to conclude that the allegations of bad faith were any more than that - allegations The substance of what was allegedly unfair, even if proven, would not amount to bad faith. The Board noted in conclusion. In the normal course of events, claims of this kind should be made in advance of the hearing and should be accompanied by detailed particulars which would establish, if proved, bad faith in the running of the competition or in its result The issue of alleging bad faith with some particularity was addressed by the Public Service Grievance Board in Handlarski 0027/92, when a management employee claimed that his release pursuant to Section 22(4) of the Act was made in bad faith. Mr Handlarski argued that because some of his job, accounting policy, was still being done by the employer, his release was not valid. The Board in Handlarski held that even if the grievor s allegations had been prov 3n, they did not 5 - amount to bad faith. The Employer's Counsel in this case requested particulars well before the hearing and put the Grievor on notice that without particulars of bad faith he would seek dismissal. Since no particulars of bad faith were alleged, the Board dismissed the grievance Likewise in the case before me, Counsel for the Employer requested particulars in writing, in advance of the hearing He put Union Counsel on notice that without particulars he would seek dismissal of the grievance No particulars have been provided except that the Grievor believes parts of her job are being continued at the Branch. Union Counsel has argued that by providing a hearing on the merits it will be shown that the exercise of management rights here was unreasonable, but he does not allege why or suggest what evidence he would call to prove bad faith. Counsel argued that bad faith could be the misrepresentation that the job had disappeared - when it has not But the Union does not dispute that the position has been eliminated only that some functions of the position remain. Thus without some detailed particulars, which would establish, if proved, bad faith in the decision to release the Grievor, the grievance must be dismissed. Dated in Toronto this J {.<., day of /1/:] / , 1997 I -~._- \ ~ r ~ /" - ~./ . <-." \ '-'- ~c; C-""Cu~ " / - . --~ ---- I / ./ D J I5 Leighton, Vice-Chair 6