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HomeMy WebLinkAbout1996-2591QUINTYN98_01_20 OWTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800. TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (41~) 32~- 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (41(1) 32(1- GSB # 2591/96, 2608/96, 2609/96, 2610/96 OPSEU # 97B 166-169 IN THE MA TIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRTEV ANCE SETTLEMENT BOARD BETWEEN OPSEU (QuIntyn) Grievor - and - The Crown in Right of Ontano (Mimstry of Health) Employer BEFORE H.S Finley Vice-Chair FOR THE M. Keys UNION Gnevance Officer Ontario Public ServIce Employees Union FOR THE D Holmes EMPLOYER Counsel Legal SefV1ces Branch Management Board Secretanat HEARING June 25, 1997 September 15, 1997 DECISION The gnevances in thIS case were filed between August 30, 1996, the date of signIng of the 1994- 1998 CollectIVe Agreement, and the pubhcatlon of the final, bound, red verSiOn. Dunng most of that time, an intenm, unbound copy using the numbenng system whIch had been In place for a number of years was In use. I have tned to Indicate both numbenng systems when numbers are used. The most frequently used articles are Article A. 1 which becomes 3 1, ArtIcle 25 1 whIch becomes 18 1 and ArtIcle 24 which becomes 20 The 1994-1998 CollectIVe Agreement (red) applies to the follOWIng gnevances. The numbers A.l, 25 1 and 24 do not refer to the expired (green) Collective Agreement, except where Indicated The Gnevor, Esnck QUIntyn, has filed five gnevances. They Involve calculatIon of hIS continuous serVIce dates, displacements, demotion, and discnmination 1 November 16, 1996 - a violation of ArtIcle 25 1 (18 1) 2 November 21, 1996 - a vIolation of Article A (3) 3 December 2, 1996 - a ViOlation of ArtIcle 25 1 (18 1) 4 December 12, 1996 - a violatIon of ArtIcle A (3) 5 January 17, 1997 - Vlolations of Articles A (3) and 24 (20) The fifth grievance is not before me as it was the wIsh of the Gnevor to awaIt a deCisIon on the earlier gnevances before scheduhng this gnevance for arbitration. 1 Mr Qumtyn is seekmg - 1 a declaratIon that his demotion from an OAG 5 to OAG 4 IS improper and contrary to the CollectIve Agreement; 2 an order agaInst the Employer to reVISIt the dIsplacements to determme hIS elIgibIlIty; 3 appropnate compensation for pain and suffenng as a result of hIS alleged human rights violation. Mr Qumtyn testIfied that at the tIme his posltlOn was "downgraded" he told hIS supervIsor, Susan Andrews, that "the whole thmg was unfair" He testIfied, m response to a questIon askIng whether or not hIS job dutIes changed, that "there was only a workload mcrease" He was also asked whether others m the office "were downgraded" to whIch he replIed "no one" and added that he thought he was bemg "SIngled out, because If they are gomg to downgrade and save money, don't save money on my back" He continued that "there was qUIte a hIStOry to all thmgs" Mr Qumtyn explaIned that on more than one occasion he had to speak to his manager on Issues and wondered "If that was part of her plan" and he told the Board that he felt that "thIS was a very good way of gettmg back [at lum]" Mr Qumtyn claIms that the failure to take into account his servIce as a GO-Temp m calculatmg hIS ImtIaI contmuous servIce date, was no mnocent mIstake but fell between mtentIonal and neglIgent error on the part of the Employer, and It IS hIS belIef that thIS error stemmed from dIscnmmatlOn based on race and gender It appeared durmg Mr Qumtyn's testImony that there were gaps in hIS comprehenslOn of the processes themselves, the rationale behind them, and theIr timmg. This is understandable, gIven the complex and multI-layered processes WhICh were gomg on at the tIme of hIS complamts. 2 The Employer's posItIon IS that the Ministry of Health was m comphance wIth the CollectIve Agreement at all tImes respectmg Mr Quintyn and complied at all times with the government's dIrectIOns on the calculation of the continuous servIce date, and at all tImes acted in good faith. (Margaret Keys, for the Union, stated that the Umon was not allegmg bad faith on the part of the Employer) The Employer has, In ItS VIew, made an exemplary attempt to support the Gnevor and has throughout provIded hIm WIth explanatIOn, analYSIS, and dISCUSSIOn of matters that affected his employment SItuatIOn. None of the actIons of the Employer has been motIvated by dIscnmmation, according to Donna Holmes, Counsel for the Employer The problem has been, accordmg to her, that Mr Qumtyn has been unwllhng to understand how the process has affected hIm and how the CollectIve Agreement operates. He has, she mamtamed, steadfastly refused to beheve that he could be dIsplaced and Imd off under the CollectIve Agreement. Ms. Holmes, submItted that the Umon must prove . that the calculatIOn ofMr Qumtyn's oflgmal contmuous servIce date stemmed from some kmd of dIscnmmatIOn on the baSIS of hIS race and gender, contrary to Article A.I 1 (3 1); . that the reorganIzatIOn of the OntarIO Cnmmal Code ReVIew Board and the reclassIficatIOn of the OAG 5 pOSItIOn to whIch Mr Qumtyn was aSSIgned, to an OAG 4 positIOn was undertaken for reasons contrary to Article A.I 1 (3 1) DECISION Before readmg the analYSIS of the Issues presented, it IS helpful to understand three prinCIples . an employee does not have ownershIp m a job; . when there IS an evaluatIOn and/or reclassIfication of a pOSItIon, It is the pOSItIon whIch IS evaluated and claSSIfied, not the employee, and . dIsplacement (bumpmg) IS a protocol agreed to by the Employer and the Umon. The process is set out m the CollectIve Agreement and, whlle optIOns are avallable to an employee wIthm the process, It must be followed by both the Employer and the Umon. It is a non-dIscretIOnary process, with certaIn exceptIOns speCIfied. 3 ,,-- A bnef chronology of events is also helpful . January 26, 1987 Mr Quintyn' s date of hue as GO-Temp May 25 1987 Mr QUIntyn' s contmuous servIce date # 2 Issued November 26, 1996 March 14, 1990 Mr QUIntyn's "break day" # 1 March 15, 1990 Mr QUIntyn' S contInUOUS servIce date # 1, Issued In August 1990 August 16, 1990 Mr Qumtyn entered the ClassIfied ServIce Apnl 1, 1993 The SocIal Contract began March 31, 1996 The Social Contract ended March 31, 1996 The 1994-1998 CollectIve Agreement was effectIve retroactIvely May 23, 1996 Management and Umon agreed that the prmciples of ArtIcle 25 1 (b) (18 1 (b)) shall apply to GO-Temp employees. July 24, 1996 EffectIve date of Article 25 1 (b) (18 1 (b)) applymg to Go-Temp employees. (FIsher award) August 30, 1996 The 1994-1998 CollectIve Agreement was sIgned October 21, 1996 Mr QUIntyn ceased workmg for the Ontano CrImmal Code ReVIew Board. November 12, 1996 InterpretIve Bulletin 22 (Amended) Issued by Management Board Secretariat to Ministry of Health, and then to Mimstry of Health Human Resources November 26, 1996 Mr QUIntyn's continuous servIce date # 2 (May 25, 1987) Issued Apn121,1997 Mr Qumtyn's lay-off date # 1 June 18, 1997 Mr Qumtyn's lay-off date # 2 May 13, 1998 Mr Qumtyn's lay-off date # 3 WhIle I recogmze that Mr Qumtyn IS no longer challengmg the calculation of hIS contmuous servIce dates, I am of the OpInIOn that the dates and the integrIty of the processes used to arrIve at them need to be revIewed and, If found satIsfactory, confirmed by the Board to brmg closure to thIS partIcular concern. I mtend, therefore, to cover thIS Issue m my declSlon. Further, It IS noteworthy that there was no eVIdence or suggestIOn of cntIcIsm of Mr Qumtyn s performance by the Employer 4 Right of the Employer to Manage Ms. Holmes submItted that the Gnevance Settlement Board has recognized that the Collective Agreement has a management nghts clause and that under that clause, Management has a nght to reorgamze the workplace, provIded that the reorganIzatIOn IS done for vahd government purposes. There IS, she stated, no doubt that a reorgamzatIOn took place. The reorgamzatIOn, as Mr Qumtyn testIfied, stemmed from changes to the Criminal Code whIch resulted to changes III the work of the board. One ofthe major changes was that more hearIngs were reqmred. The Umon submItted that the Employer faIled to JustIfy the reorgamzatIOn and the vahd busIness reasons for It. The Employer has the nght, subJect to the provlSlons of the apphcable CollectIve Agreement(s) to "manage the busmess and dIrect the workforce" ThIs mcludes the nght to lay-off employees and to evaluate and claSSIfy posItIons. ArtIcle 2 of the January 1, 1994 to December 31, 1998 Collective Agreement sets out the scope of these nghts. For the purposes of this Agreement and any other Collective Agreement to which the parties are subject, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal, and make reasonable rules and regulations, shall be vested exclusively in the Employer It is agreed that these rights are subject only to the provisions of this Agreement and any other Collective Agreement to which the parties are subject. [Emphasis added.] The Umon did not present any eVIdence which demonstrated that the Employer's reorganIzatIOn was contrary to the CollectIve Agreement. Further, it faIled to offer evidence whIch would lead me to conclude that the reorgamzatIOn was unJustIfied or for mvahd busmess reasons. NeIther was there eVIdence whIch would persuade me that the Employer was actmg outsIde ItS nghts under the CollectIve Agreement in evaluatmg and claSSIfying the position of Record Clerk, and m Issumg lay-off notIces to Mr Qumtyn. Therefore, I accept that, in principle, the 5 reorganization of the Criminal Code Review Board was not contrary to the Collective Agreement and that the Employer was within its rights to undertake this reorganization, and to evaluate and reclassify the position of Record Clerk, and to issue lay-off notices to Mr Quintyn. Reclassification of the Position of Records Clerk, the Ontario Criminal Code Review Board in the Ministry of Health ApproxImately SIX weeks before his dIsplacement on October 21, 1996, Mr Qumtyn had receIved notIce of the reclassIficatIOn of hIS assIgned posltlOn. He asked Ms. Andrews, hIS SupervIsor and the Office Manager, for an explanatIOn of the reclasslficatlOn of "his posItlOn" statmg that "In January of 1995 staff were mformed of an orgamzatlOnal change WhICh affected other members of staff" Ms. Keys submItted that the Gnevor's eVIdence of an mcrease m hIS workload followmg the downgradmg of hIS posItion from OAG 5 to OAG 4 and of the mmor nature of the changes to the dutIes he performed, tended to support Ius VIew that the Employer's conduct was "not on the up and up" and could be construed, as he had done, as a means of the Office Manager, Susan Andrews, gettmg back at hIm. ThIS was strengthened by the lack of eVIdence Justlfymg the reorgamzatIon and the valId business reasons for It, and the Gnevor's understandmg that he was the only person whose posItlOn had been downgraded (recogmzmg that one other mdIvidual had been declared surplus) The Umon takes the posItIOn that thIS was an unJustIfied demotlOn, contrary to the CollectIve Agreement. WhIle few details of the changes to the Criminal Code reVISlOns and the changmg reqmrements placed on the OntarlO CrIminal Code ReVIew Board, were presented, I VIew thIS as a valId reason. The onus rests WIth the Umon to prove that unjustIfied or mappropnate reasons for the re-orgamzatlOn motIvated the changes, and the degree of eIther would need to be more than mmor to satISfy the onus. The Umon dId not, m thIS mstance, rebut the eVIdence of the Employer or present eVIdence Itself to meet thIS onus. 6 Mr Qumtyn stated he was not mformed at that tIme that "his classIficatlOn" was changed. Ms. Andrews explamed that the reVISIOn of mdivIdual posltlOns had taken place to bring them m lIne wIth the operatlOnal changes, and that the reclassIficatlOn of the posItIon to whIch Mr Qumtyn was assIgned was delayed due to the terms of the Social Contract. Mr Qumtyn appears to have taken thIS change m classIfication personally and saw hImself smgled out it as part of Ms. Andrews plan to get back at hIm, smce there had, he testIfied, been "quite a hIstOry to all thmgs", although there was no specIfic eVIdence regarding this mnuendo He testified that he told Ms. Andrews that "the whole thmg was not fair" There was no evidence which could be construed as Mr Quintyn having been singled out or discriminated against on the basis of race or gender, or on any other prohibited ground, when the position to which he was assigned was reclassified. The fact that he perceIved he was bemg treated unfauly does not m and of Itself constItute dIscnmInation. The Employer IS entItled under the CollectIve Agreement to evaluate and classIfy posItIons and there was no evidence that this process or the substantive differences in the two positions - OAG 4 and OAG 5 - were other than reasonable. Mr Qumtyn stated that "hIS workload mcreased" It may well have done In other words, he may have felt that he had more thmgs to do, or that he was expenencmg more fatigue at the end of each day However, classIficatlOn levels are not based on workload, but rather on level of responslbIhty, range of duties and required skIlls m the context of comparable posItIons throughout the OntarIo Pubhc ServIce Each posItlOn IS rated accordmg to Knowledge, Skill, Judgement, Accountability, and Group LeadershIp The OAG 5 posItlOn had a total of 300 pomts, the OAG 4, 255 pomts, the 40 pomt dIfference bemg under the knowledge level reqUIred to do the Job whIch had been downgraded from level 2 to level 1 The purpose of the records clerk pOSItIOn set out m the OAG 5 posltlOn specIficatIOn dated Apnl5, 1991 and effectIve March 1, 1991, was as follows. To provide clerical and records management services to the Lieutenant Governor's Board of Review To provide back-up support to the receptionist secretary and the Assistant Coordinator of the Lieutenant Governor's Board of Review In the GAG 4 posItlOn speclficatlOn dated November 28, 1994 and effectIve November 15, 1994, 7 the purpose was stated as follows To provide photocopying, clerical, and filing services to the Board. In the OAG 5 posItIon specdicatlOn, the skills and knowledge reqmred to perform the Job at a full workmg level, were proven office/clerical experience; ability to set priorities, work with speed, accuracy, initiate and creativity to strict deadlines, and work independently in a small team environment. Good working knowledge of a filing and records management system and the ability .[the continuation appears to be missing in the evidence.] In the OAG 4 posItlOn specdicatlOn, the skills and knowledge required to perform the Job at a full workmg level, were Ability to complete filing and photocopying work with accuracy in fast paced environment within tight time frames. Ability to work independently while working as a team member, good interpersonal skills, communication and organization skills. Ability to deal with board members and facilities staff. Ability to work in a confidential environment. Ability to be flexible. Under the OAG 4 positlOn specIfication, the person occupymg that posItlOn was no longer the "CustodIan" of the LIeutenant Governor's Road of Review files or the photocopymg eqmpment. The orgamzatIOnal charts submItted showed that from 1994 to 1996 there had been a number of changes resuItmg m an overall mcrease m the number of positions. The new posItIOns of "Board Order Clerk", SchedulIng Clerk, and Hearmgs Clerk were created, for example, although the last of these was vacant m May 1996. The evidence demonstrates that there was a faIrly extensIve reorganIzatlOn ofthe Ontario Cnmmal RevIew Board. A reVIew of the dutIes and responsIbIlItIes of the OAG 5 and the OAG 4 posItIons mdICates that there were some changes and some reductIOn m responsibIlIty m the positlOn modIficatlOn. The Collective Agreement does not restrict the Employer from reclassifying this position and based on the evidence, the reclassification does not appear to be unreasonable. There is no evidence of discrimination on the grounds of race or gender, or on any other prohibited ground in the Employer's reclassification of the position of Records Clerk from an OAG 5 to an OAG 4. 8 Mr Quintyn's Continuous Service Dates Mr QUIntyn alleged that the Employer had viOlated Article 25 1 (18 1) by Incorrectly calculatIng hIS contInuous serVice dates. At the tIme of the calculatIOn of Mr QUIntyn' s imtIal continuous servIce date In August 1990, the 1989-1991 CollectIve Agreement (blue) was In effect. The verSlOn of ArtIcle 25 1 (18 1) m effect at the tIme of that calculatlOn IS set out below' 25 1 An employee's length of continuous service will accumulate upon completion of a probationary period of not more than one (1) year and shall commence: (a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service; or (b) from the date on which an employee commences a period of unbrokem, full-time service in the public service, immediately prior to appointment to the Classified Service; or (c) for a regular part-time civil servant, from January 1, 1984 or from the date on which he or she commenced a period of unbroken, part-time employment in the public service, immediately prior to appointment to a regular part-time position in the civil service, whichever is later; or (d) effective January 1, 1984, from the date established by adding the actual number of full-time weeks worked by a full-time seasonal employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks. "Unbroken service" is that which is not interrupted by separation from the public service; "full-time" is continuous employment as set out in the hours of work schedules for the appropriate classifications; and "part-time" is continuous employment in accordance with the hours of work specified in Article 61 1 It dId not apply to GO-Temp employees. FollOWIng thIS, the 1992/1993 CollectIve Agreement (green) was In effect up to March 30, 1996 and ArtIcle 25 1 (18 1) in that CollectIve Agreement read as follows 25 1 Effective February 3, 1992, an employee's length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence: 9 -;~-- (a) from the date of appointment to the Classified Service for those r' employees with no prior service in the Ontario Public Service; or (b) effective January 1,1992, from the date established by adding the actual number of full-time weeks worked by a full-time unclassified employee during his full-time employment back to the first break in employment which is greater than thirteen (13) weeks; or (c) for a regular part-time civil servant, from January 1, 1984 or from the date on which he or she commenced a period of unbroken, part-time employment in the public service, immediately prior to appointment to a regular part-time position in the civil service, whichever is later; or (d) effective January 1, 1984, from the date established by adding the actual number of full-time weeks worked by a full-time seasonal employee during his full-time employment back to the first break in employment which is greater than thirteen (13) weeks. "Unbroken service" is that which is not interrupted by separation from the public service; "full-time" is continuous employment as set out in the hours of work schedules for the appropriate classifications; and "part-time" is continuous employment in accordance with the hours of work specified in Article 61 1 Effective December 20, 1990, any leaves-of-absence granted under Articles 3 9 and 3.3 5 shall be included in the calculation of length of continuous service. The artIcle above dId not apply to GO Temp employees. The artIcle below whIch is In the 1994-1998 CollectIve Agreement (red) was effectIve as of March 3 1, 1996 The mterIm verSIOn and the old numbering system were stIll bemg used at the tIme of the recalculation ofMr Quintyn's continuous servIce date m November 1996 25 1 (18 1) An employee's length of continuous service will accumulate upon completion of a probationary period of not more than nine (9) months and shall commence: (a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service; or (b) from the date established by adding the actual number of full-time weeks worked by a full-time unclassified employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks; or (c) for a regular part-time civil servant, from January 1, 1984 or from the date on which he or she commenced a period of unbroken, part-time 10 employment in the public service, immediately prior to appointment to r a regular part-time position in the civil service, whichever is later; or (d) effective January I, 1984, from the date established by adding the actual number of full-time weeks worked by a full-time seasonal employee during his or her full-time employment back to the first break in employment which is greater than thirteen (13) weeks. "Unbroken service" is that which is not interrupted by separation from the public service; "full-time" is continuous employment as set out in the hours of work schedules for the appropriate classifications; and "part-time" is continuous employment in accordance with the hours of work specified in Article 58 1 (Hours of Work.) Effective December 20, 1990, any leaves of absence granted under Article 31.9 (Unclassified Employees - Pregnancy and Parental Leave) and Article 32.19 (Seasonal Employees - Pregnancy and Parental Leave) shall be included in the calculation of length of continuOlls service. [EmphasIs added.] The artIcle above apphed to GO Temp employees begmmng July 24, 1996 As of July 24, 1996, according to the deCISIon of Arbitrator ,FIsher dated July 24, 1996, ArtIcle 25 l(b) (18 l(b)), for the first time, "formally mclude[d] GO-Temp servIce as unclassIfied servIce for the purposes of calculating an employee's contmuous servIce date" The relevant portIOn of the award reads as follows. The Board issued an interim decision in this matter on June 18, 1996 In that decision the Board stated it would reconvene on July 24, 1996, to hear the submissions of the parties regarding the implementation date of the Agreement between the parties dated May 23, 1996 Having heard those submissions and carefully considered the matter, the Board's decision is as follows. Before proceeding it is useful to set out the terms of the relevant Agreement. 1 The parties agree that the principles of Article 25 1 (b) [18 l(b)] shall apply in cases of GO-Temp employees appointed to the Classified staff For example, an employee who was appointed to classified service July 5, 1994 and served as a GO-Temp from January 15,1991 to July 4, 1994 and had a break from March 6 to 18,1993, shall be given a continuous service date of January IS, 1991 Only a break in employment greater than thirteen weeks shall cause a break in service for purposes of this letter; 2. The parties agree that Article 25 1 (b) [18 l(b)] applies to all employees irrespective of date of appointment to the classified service. As noted in the interim decision, the parties are in agreement as to the application of the terms of 11 ........-~ the above Agreement. Paragraph I provides that continuous full-time GO- Temp service Immediately prior to appointment to the classified service shall be included in the calculation of an employee s contmuous service date. The effect of the Agreement in thIs regard is to amend Article 25 I(b) [18 I (b)] of the Collective Agreement to formally include GO-Temp service as unclassified service for the purposes of calculating an employee's continuous service date. Paragraph 2 of the Agreement further amends Article 25 [18] to negate the effect of the reference to February 3, 1992, in 25 1 [18.1] and the reference to January 1, 1992 in 25 1 (b) [18 1 (b)] in that the calculation formula, as amended by paragraph 1 as described above, applies to all unclassified employees (i.e. excluding former season unclassified covered under Article 25 1 (d) [18.1 (d)] equally irrespective of their date of appointment to the classified service. It is apparent that the parties have agreed that a single calculation formula shall apply to all persons appointed to the Civil Service pursuant to Article 25 1 (b) [18 1 (b)] Previously a different formula was used to calculate the seniority of a person appointed to the classified service prior to the Collective Agreement dated January 1, 1992 to December 31, 1993 than a person appointed to the classified during the term of that Collective Agreement. The May 23, 1996, Agreement eliminates this inconsistency However, one further issue arose in respect to the interpretation of the Agreement. The example cited in respect to paragraph 1 is incorrect and flies-in-the-face of the clear and express wording of Article 25 1 (b)[ 18.1 (b)] in that it appears to give seniority credit for time not worked, i.e. March 6 to March 18, 1993 Article 25 l(b)[18 l(b)] states that a classified employee's continuous service date "shall commence. .from the date established by adding the actual number of full-time weeks worked (emphasis added." The first sentence in paragraph I indicates the parties' intention simply to include GO-Temp service as appropriate unclassified service. It is clean and unambiguous. There is no evidence of any intention to alter the clear wording of Article 25 l(b)[18.1(b)] Therefore, in the example contained in paragraph I the January 15, 1991 date would have to be adjusted to accommodate the break in service from March 6 to 18, 1993, thereby establishing a new attributed continuous service date. The next issue to be dealt with is when should the Agreement be implemented? The union's position is that the implementation date should be the date of the Agreement [May 23, 1996] The Employer's representatives argued that the Agreement can not be implemented until the then current round of lay-offs is completed. After carefully considering the matter, the Board's decision is that the Agreement should be implemented as of July 24, 1996 On Apnl 16, 1997, ArbItrator DIssanayake Issued a declSlon in GSB 2875/96 about the calculation of the period of service in the Go Temp Service which is to be taken into account in establishing the seniority date, in circumstances where an employee had absences due to sickness during hislher Go Temp assignments. In that case the Employer had taken the pOSItIon that m ArtIcle 18 1 (b) (25 l(b)) "to be consIdered a "full-tIme week", the employee must have worked the number of hours specIfied m the schedule and the Umon submItted that GO-Temp employees should be treated the same as unclassIfied employees and should not have their servIce dIminished on account of absences due to SIckness. Arbitrator DIssanayake went on to state, m hne WIth the mterpretatIOn of "full-tIme" 12 In Re Pitfleld et ai, GSB 2564/91 (Venty), that "Full-time" means that a week can be considered "full-time" only where the employee has worked the number of hours specified for the particular classification in the hours of work schedules. He went on to state that In the Board's view, seen in the context of the whole collective agreement, the different results that flow when article 18.1 (b) is applied to unclassified employees and Go Temp employees respectively, as it governs absences due to sickness, are warranted by the language. A Go Temp employee does not accumulate sick leave credits and is not paid during an absence due to sickness. Therefore, there is no room for deeming, even notionally, that the employee worked on such a day In contrast, unclassified employees are situated differently under the collective agreement. They do accumulate sick leave credits and when they use an earned sick credit on a day of absence, they are deemed to be at work and are paid their wages as if they were at work. Thus despite an absence due to sickness, the employee's hours for the week do not get reduced below full-time hours. The Board concludes that this difference in result on an application of article 18.1 (b) is one dictated by the collective agreement and that the employer has not contravened the collective agreement. At the tIme of the hearmg, Mr Qumtyn had been employed m the Ontario Pubhc ServIce for Just under eleven years. For the first three years, and approxImately seven months, he worked as a GO-Temp employee. In a review of the mformation respectmg the dates of work on whIch hIS contmuous service date was to be based, Mr Qumtyn acknowledged that from hIS date of hue, January 26, 1987 to August 15, 1990, there were dates on whIch he did not report to work eIther through lack of assignment or Illness. He stated that he was not aware that the dates on whIch he dId not work would affect hIS contmuous servIce date. It was explamed to hIm that the ongmal date of hue and the contmuous serVIce date were not the same and the reason for the dIfference was that for GO Temp employees, the date is adJusted to take mto account absences from work. When Mr Qumtyn entered the ClassIfied ServIce on August 16, 1990, hIS contmuous servIce date was estabhshed accordmg to the practIce at the tIme, that is, by workmg backwards from August 15, 1990 to the find the first workday on WhICh he dId not work for whatever reason. A reVIew of hIS work schedule showed that March 14, 1990 was a "break day" and based on thIS findmg, hIS contmuous servIce date was established as March 15, 1990 At that tlme, ArtIcle 25 I (b) dId not apply to GO-Temp servIce m the calculatIOn of the contmuous servIce date of 13 classified employees wIth prevIous GO-Temp servIce Mr Qumtyn contInued to work at the OntarIo Cnmmal RevIew Board and appears to have expressed no concern over hIS ongmal contmuous service date of March 15, 1990, until October 21, 1996, when he receIved notice that a more semor employee, LI Chow, had opted to dIsplace hIm and he was bemg declared surplus. Her contmuous servIce date was February 1, 1988, although Mr Qwntyn was unaware of this at the tIme. One of Mr Qumtyn' s responses to thIS news was to questlOn hIS contmuous service date, although he acknowledged at the hearing that he was not famihar wIth the method for carrymg out the calculatIOn. It IS of concern that on November 13, 1996, Mr Qumtyn was Issued a confirmatIOn of his "contmuous servIce date" (not a specIfic date, but a senes of tIme periods) by the Special Programs & ServIces Branch, Employment InformatlOn Services, GO-Temp Payroll which was erroneous. ThIs must have added to hIS confuslOn Ms. Holmes acknowledged Mr Qumtyn's candour in testIfymg that he had no knowledge of the Gnevance Settlement Board declSlon of July 24, 1996, and that the extent of hIS knowledge of InterpretIve Bulletin 22, was that'his awareness of a memorandum cIrculatIng m November/December that dealt wIth GO-Temp servIce. Mr Qumtyn's dIsplacement took place approxImately three months after the Issuance of the ArbItrator FIsher's declSlon whIch mandated a new method for calculatmg the contmuous servIce date of employees wIth preVIOUS GO-Temp servIce. It was also Just three weeks pnor to the Issuance ofInterpretive Bulletm 22 advismg of the necessIty of recalculatmg the contmuous serVIce dates of all employees WIth previous GO-Temp servIce, and settmg out the new method. If the new method of calculatlOn had not been agreed to and subsequently ordered, Mr Qumtyn's ongInal contmuous servIce date of March 15, 1990 would have remamed the same smce It was not mcorrect. In gnevance number #3 Mr Quintyn asked to have hIS semonty recogmzed to January 26, 1987, his date of hue. The only way that hIS contmuous service date could have been hIS date of hIre would have been If there had been no breaks whatsoever In hIS work calendar, from January 26, 1987 to August 16, 1990 That, of course, would not have occurred m a normal employment SItuatIOn. In Mr Qumtyn's case, there had been numerous 14 breaks for vanous reasons between hIS date of hue and hIS move to the ClassIfied ServIce There is no evidence that there was an error in the calculation of Mr Quintyn's original continuous service date, or that it was calculated differently from the continuous service date of other previous GO-Temp employees. There is no evidence of discrimination on the grounds of race or gender, or on any other prohibited ground, in the Employer's determination ofMr Quintyn's original continuous service date. A reVIew of the eVIdence demonstrates that once InterpretIve Bulletm 22 (RevIsed) was receIved by the Human Resources Branch of the Mimstry of Health the recalculatIOn ofMr Qumtyn's contmuous servIce date was dealt wIth promptly Although the new method of calculatIOn caused some mItIal confusIOn, I am satIsfied that the confusIOn was overcome and that the allegatIOn made by Mr Qumtyn dunng the hearing that it is part of negligence on the part of human resources experts who on a daily basis have to deal with this kind of work, not only to fire me but to make sure employees records are correct because it could make a great difference, IS unwarranted. It is the conclusion of this Board, following a detailed review of the evidence, that the calculation ofMr Quintyn's new continuous service date of May 25,1997 is in compliance with Article 25.1 (b) (18.1 (b)), the July 24,1996 Grievance Settlement Board decision, Interpretive Bulletin 22 dated November 12,1996, and the April 16, 1997, Grievance Settlement Board. I am satisfied, based on the evidence of Julie Powell who calculated the continuous service date that Mr Quintyn's date of May 25,1987 is correct. Further, there is no evidence of any discriminatory practice on the grounds of race or gender, or on any other prohibited ground, relating to this process. 15 Displacements of Mr Quintyn and Displacement Opportunity Offered to Mr Quintyn ~ Mr Qumtyn was on leave from Fnday, October 4 to Fnday, October 18, 1996 which meant that hIS return to work took place on Monday, October 21st. On October 7,1996, It was confirmed by Mr Don Covello, Redeployment AdvISor, that an employee, LI Chow, who had a contmuous service date of February 1, 1988 was ehgible under the OPSEU Interim CollectIve Agreement, to dIsplace Mr Quintyn whose contmuous service date was March 15, 1990 This optIOn was exercIsed by her pursuant to Article 24 4 (20 4). The Human Resources Branch at the Mimstry of Health was mformed of thIS and m turn notIfied Mr Qumtyn (letter of October 21, 1996). Mr Qumtyn stated that he thought that someone m Human Resources should have let hIm know that he was going to be dIsplaced before the day that the employee who was dIsplacmg hIm amved. However, Mr Qumtyn was not at the workplace and the Employer dId make efforts to contact him pnor to the date of dIsplacement at hIS resIdence but was unsuccessful. Mr Qumtyn acknowledged that he knew they were trymg to get In touch with hIm. He apparently chose not to return theIr calls. Mr Qumtyn must reahze that the Employer cannot have a new employee walkmg mto the workplace wIthout mformmg other employees. Had he returned the Employer s call, he could have been mstrumental m aVOIdmg an awkward sItuatIOn both for himself and for others. Havmg receIved hIS mItIal notice of dIsplacement and bemg told there was no vacancy to whIch he could be assIgned. Mr Qumtyn was gIven three optIOns. He appears to have opted for dIsplacement although there was no eVIdence that he returned hIS optIOn form. ThIS was followed by a notIce a week later (October 28, 1996) that there was no dIsplacement opportumty aVailable for hIm and at that pomt, WIth two optIOns available, he remamed on notIce and avaIlable for aSSIgnment eIther by chOIce or default. Mr Qumtyn's mItIal dIsplacement date was approxImately three months after the Gnevance Settlement Board deCISIon of July 24, 1996, respectmg the mclUSIOn of GO-Temp employees m 16 ArtIcle 25 1 (b )/18 1 (b), three weeks after the sigmng of the 1994-1998 Collective Agreement and almost three weeks before the Issumg of Interpretative Bulletm 22 (Revised) WhICh addressed the revIsed calculatIOn method ofthe contmuous servIce dates of prevIOus GO-Temp employees. At the tIme m question, numerous employees were dIsplaced and were displacmg. ThIS was a tIme of change for marlY employees. In an organIzatIOn as large as the government, It would be unusual for at least a number of employees not to be affected retroactIvely by a new dIrectIve When Mr Qumtyn's new contmuous service date was received, the Employer, qUIte properly, looked at hIS dIsplacement SItuatIOn retroactively and determmed that mdeed he would not have been dIsplaced on October 21, 1996 but dunng the week of December 18, 1996, (thIS dIsplacement by an employee, Una Edwards who had a contmuous service date of Apnl 6, 1987) and as a result hIS lay-off date was moved from Apnl 21, 1997 to June 18, 1997 Once hIS contmuous servIce date was revIsed, the DIrector of Humarl Resources of the Mimstry of Health wrote to hIm, cancelhng the effect of the ongmal dIsplacement and mformmg hIm that he would have been dIsplaced on December 18, 1996 under the new contmuous servIce date calculatIOn. Mr Qumtyn suffered no loss of salary or benefits. He was offered the same three optIOns as before, and thIS tIme elected to remam on notIce for a penod of SIX months WIth the possibIhty of assIgnment, "under protest" Once agam, a review ofMr QUIntyn's dIsplacement opportumtIes was conducted arld this tIme a dIsplacement possiblhty was located for him In the Mimstry of Health m Concord, OntarIO, some dIstance from hIS reSIdence m Oshawa. He was Informed of this opportumty by letter of December 27, 1996 but reJected thIS dIsplacement possiblhty because, he explained, he "was under doctor's orders" Mr Qumtyn obtamed a medIcal note from hIS phYSICIan statmg that he was suffenng from work-related stress and should not make declSlons regardIng hIS future until he had undergomg further treatment for hIS stress dIsorder There was no evidence of anything improper about either displacement. 17 In May, 1997, Mr QUIntyn was then offered a temporary assIgnment In accordance with ArtIcle 20 8 TEMPORARY VACANCIES 208.1 Surplus employees shall be eligible for assignment into temporary assignments in their own ministry in the last two (2) months of their notice. Such assignments are meant to provide additional employment opportunities for surplus employees prior to lay-off Where more than one surplus employee matches the temporary assignment, the employee with greater seniority shall be offered the temporary assignment. It is understood that such assignment of a surplus employee to a temporary vacancy has priority over Article 8 (Temporary Assignment). 20 8.2 A surplus employee shall retain his or her status in the classified service and current salary entitlements while placed in a temporary assignment. Placement in a temporary assignment will not constitute a promotion for pay purposes. subject to Article 20 8.1, for placement into temporary assignments, the employer shall use the same criteria and rules as for assignment into vacancies under Article 20.5 (Redeployment), 20.8.3 An offer of a temporary assignment to a surplus employee must be in writing and must specify the duration of the temporary assignment. The surplus employee shall have three (3) working days in which to accept or reject the offer of a temporary assignment. 20.8.4 Surplus employees who are occupying a temporary assignment remain eligible for assignment to permanent vacancies in accordance with the provisions of Article 20.5 (Redeployment) throughout their temporary assignment, but shall not continue to be matched to other temporary assignments during the term of the temporary assignment; however, the original temporary assignment may be extended by a maximum of three (3) months. 208.5 Where an employee in a temporary assignment is assigned to a permanent vacancy, the reporting date to the permanent position shall be no later than one (I) month from the date of offer, unless otherwise mutually agreed upon with the employee, the ministry with the permanent vacancy and the ministry with the temporary assignments. 2086 When a temporary assignment takes place, the employee shall not be unreasonably denied the opportunity to complete any portion of training already underway Surplus employees who refuse a temporary assignment shall continue to be considered for assignment into permanent vacancies for the duration of their surplus notice period, but not for further temporary assignment. There is no evidence that the processes by which Mr Quintyn was declared surplus, that is, his initial displacement, his second displacement, the revision of his layoff and last day dates, his offer of options, including his option to displace another employee with a later 18 continuous service date, and his temporary assignment, were carried out other than in accordance with Article 20 (24) of the Collective Agreement. Discrimination Mr Qumtyn clmms dIscnmmatIOn on the grounds of colour/race (black) and gender (male) ArtIcle All (3 1) reads as follows There shaIl be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 1 O( 1) of the Ontario Human Rights Code (OHRC) The Issue of dlscnmmatIOn has been dealt wIth under the prevIOus headmgs. In summary, the Board finds that there was no evidence presented by the Union which would lead to the conclusion that in the reorganization, and the reclassification of the position of Record Clerk, or in the calculation ofMr Quintyn's continuous service dates, or displacements the Employer had discriminated against Mr Quintyn on the basis of race or gender, or on any other prohibited ground, Conclusion In the result, Grievances # 1, # 2, # 3, and # 4 are dismissed. Gnevance # 5 remams outstandmg. Issued at Toronto this 20th day of January, 1998 ( -=~ --- ^----I ..-'/ ., , / . :" ...-/ v// L / "- H. S Finley, Vice-chaIr 19