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HomeMy WebLinkAbout1997-1594HUTT98_02_25 . ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-131X5 GSB #] 594/97 OPSEU #97G081 IN THE MATfER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hutt) Grievor - and - The Crown In Right of Ontano (Mimstry of Agnculture, Food & Rural Affairs) Employer BEFORE RL Venty, Q C Vice-Chair FOR THE G Leeb UNION GrIevance Officer Ontano PublIc ServIce Employees Umon FOR THE A Hoad EMPLOYER Corporate Staff RelatIOns Officer Management Board Secretanat THIRD PARTY S HutchInson HEA RING February] 0 ] 998 \~ 2 DECISION In a gnevance dated November 14 1997 MIchael Hutt alleges that the employer vIOlated article 20 of the collectIve agreement by the Improper denIal of dIsplacement rIghts, By way of settlement he requests compliance wIth artIcle 20 wIth compensatIOn and Interest for all lost wages and benefits. The Issue Involves the proper InterpretatIOn of artIcle 204 l(f) and In partIcular the meanIng of the word "posItIon" In subparagraph (111) Although the dIspute Involves artIcle 204 l(f), It IS useful to Include the precedIng paragraphs whIch appear under the headIng "DIsplacement" 204 DISPLACEMENT 2041 An employee who has completed his or her probatIOnary penod, who has receIVed notIce of lay-off pursuant to ArtIcle 20.2 (Notice and Pay In Lieu), and who has not been assIgned In accordance wIth the cntena of Article 205 (Redeployment) to another posItIOn shall have the nght to displace an employee who shall be IdentIfied by the Employer In the folloWIng manner' (a) The Employer will Identify the employee with the least sel1lonty In the same clasSification and the same mUllstry as the employee s surplus posItion. If such employee has less semonty than the surplus employee he or she shall be dIsplaced bv the surplus employee provIded that: ( I) such employee s hcadquarters IS located WIthIn a forty (40) kilometre radIUs of the headquarters of the surplus employee and (ll) the surplus employee IS qualified to perform the work of the Identified emplovee (0) If the surplus employee IS not qualIfied to perform the work of the least seIl10r employee IdentIfied under paragraph (a) aoove the Lmployer will contlI1ue to \, Identify II1 reverse order of semontv employees 111 the same claSSification and 3 III the same nlllllstry until a less sel1l()f employee IS found wlthlll forty (40) kIlometres of the surplus employee s headquarters whose work the surplus employee IS qualIfied to perform, (c) I ailmg (hsplacement under paragraphs (a) or (h) ahove the I,mployer WIll Identify 111 reverse order of sel1lonty employees III the classes III the same class senes m deseendlllg order unlll an employee With less sel1l0nty IS found III the same mllllstry wlthm forty (40) kIlometres of the surplus employee s headquarters, The Idenllfied employee shall he dlsplaeed hy the surplus employee provided he or she IS quahfied to perform the work, (d) Failing dlsplaeement under paragraphs (a), (b) or (e) above, the Employer will review other classes whleh 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 In the same mllllstry wlth1l1 forty (40) kilometres of the surplus employee s headquarters, The Employer will IdentIfy, m reverse order of semonty a less SeI1lOT employee 111 the class With the maximum salary closest to but not greater than the maximum salary of the surplus employee's current classificatIon. The IdentIfied employee shall be displaced by the surplus employee provided he or she IS qualIfied to perform the work. (e) FailIng displacement under paragraphs (a), (b), (c) or (d) 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 of hiS or her headquarters, No relocatIOn expenses will be paid. (D Failmg displacement under paragraph sea), (b), (c) (d) or (e) above, the Employer will Identify m reverse order of selllonty a less semor employee who IS: ( i) In another m1l1lstry; and ( Ii) whose headquarters IS Within a forty (40) kilometre radIUS of the dlsplacmg employee s headquarters; and (m) whose posItIon the dlsplacmg employee prevIOusly held either on a full tIme baSIS, or who performed thc full range of Job dutIes on a temporary baSIS for at least twelve (12) months In that ministry; and (IV) If the employee preVIOusly held more than one posItIon In that mllllstry, the position With a maximum salary closest to but not greater than the maximum salary of the dlsplacmg employee s current classificatIOn, The Identified employee shall be displaced proVided the dlsplac1l1g employee IS quahfied to perform the work, '. 4 The hearing proceeded by way of an Agreed Statement of Facts wIth accompanymg documentatIon followed by bnef submIssIons. No oral eVIdence was mtroduced Susan Hutchmson, who could be affected m thIS matter, was given third party notIce and attended the heanng where she was afforded full nghts to partIcipate Subject to some edltmg on my part, the agreed facts read as follows. 1 The gnevor, Michael Hutt, was declared surplus on November 6, 1997 HIS posItIon was an OccupatIonal Health and Safety Officer (classIficatIon Safety Instructor Officer 3) HIS headquarters was m Guelph where he worked m the MmIstry of Agnculture, Food and Rural AffaIrs. The gnevor s contmumg servIce date IS May 7, 1973 2. There was no dIsplacement available for the gnevor m the MmIstry pursuant to artIcle 204 l(a) to (e) mclusIve. The Issue m dIspute IS the applIcatIon of ArtIcle 204 l(f) The partIes agreed that the Gnevance Settlement Board would be asked to determme whether the gnevor should be conSIdered for dIsplacement mto a posItIOn m the MmIstry of Labour at the Kltchener- Waterloo DIstnct Office 3 Susan Hutchmson IS the employee wIth the least semonty m the mdustnal stream of an OccupatIOnal Health and Safety Inspector posItIon at Kltchener- Waterloo Her contmuous servIce date IS May 27, 1991 4 On November 7, 1997 the gnevor submItted a request to dIsplace an employee through a "crOSS-mInIstry bump" The gnevor was prevIOusly employed m the MmIstry of Labour m an OccupatIonal Health and Safety PosItIon m London between 1980 and 1990 He prevIOusly held two other full-tIme posItIOns whIch are not mvolved m thIS gnevance 5 There are three major streams m the OccupatIOnal Health and Safety Inspector posItIons. mdustnal, constructIOn and mmmg The gnevor s prevIOUS posItIon was m the mdustnal stream 6 On November 10, 1997 Stephen Brown of Management Board Secretanat Staffing and Development ServIces Branch sent a letter to the MmIstry refusmg a dIsplacement to the posItIon m London smce It was outSIde .the 40 km radIUS of the gnevor s headquarters m Guelph , , 'i 7 Stephen Brown's letter IS In accordance with Management Board Secretanat s InterpretIve BulletIn 2 (Revised ), da tcd Junc 20 1997, regardIng "DIsplacement RIghts" whIch In the InterpretatIon of artIcle 204 1(f) reads at p 6 C. Othcr Ministrics, within 40 kil()U1ctrcs Step 6: PrevIous Posll1ons at Other Mlnlstnes Based on mformatlOn provided by the surplus employee and hls!her home mll11stry, MBS will try to find a less semor employee for hml/her to bump at another mnllstry where he/she prevIOusly worked, Bumpmg between mll1lstnes IS !tmlted to posItIOns not classIfications, which the employee prevIOusly held at the parl1cular mmlstry or mmlstnes m queshon, A pOSll101l IS described as follows: The position, IdentIfied b\' Job lltle and posItIOn group code, must be III the same classIficatIOn have the IdentIcal Job speclficatwn, in the same mllllstr',' and work 10catlOIl III the same admllllstratrve drstnct or unit, IIlslltutlOn or other such work unit as the posltwn prevlOuslv held b\' the surplus emplowe, In order to bump someone at another mmlstry, the surplus employee must. , . have held the Idenhfied employee's poslhon at that mmlstry' . held either on a full-hme basIs or performed the full range of job duhes on a temporary basIs for at least twelve (12) months; . If held temporanly' . the employee cannot have been assigned to "underfill" the pOSll1on; and . the twelve (12) months must have been "acl1ve" service (that IS, penods of "macl1ve service, such as leaves of absence, sick leave etc. will not be counted) and . the twelve (12) months does not have to be consecutive but can be eumulal1ve' and . the employee can have performed the full range of Job duties on a temporary baSIS as an unclassified emplovee seasonal emplovee GO Temp employee or student. . have greater semontv than the ll1cumbent. For each ml1llstry where the employee prevIously worked MI3S will revle'W posll1ons which he/she held at that particular mlIllstry MI3S Will choose tire olle pOSltlOJ/ with . 6 maxmmm salary closest to hut not greater than the surplus employee s eurrcnt maximum salary 10 bump an employec holdmg this poslllon, the surplus employce must be qualified to pcrform thc work MBS Will determme If an employee IS qualified by companng Ills/her skills with the skills reqUIred for thc position, If an cmployee has worked at several mmlstnes, MBS will select rhe one pO,HI101l at each mllustry with maximum salary closest to but not greater than the surplus employee s current maximum salary MBS will rank thc selected Jobs (one from each muustry) from highest maximum salary to lowest. Begmnmg at the top of the list, MBS will look for a displacement opportul1lty m the lughest-paymg pOSItion at the first mllustry If no displacement IS found, MBS will try to IdentIfy a displacement 111 the next lughest-paymg poslllon at the second mllustry By the end of the seventh day of notice, MBS will adVise the surplus employee, through hls!her mllllstry Redeployment AdVIsor ofthe final outcome (bump or no bump) If no dIsplacement has been found after full exhaustmg the above SIX steps, the employee cannot exercIse dIsplacement nghts. 8 The extract from the InterpretIve Bulletm referred to m the precedmg paragraph was last reVIsed on June 20 1997 but the sectIOn definmg "pOSItIon" has remamed unchanged smce the Bulletm was first Issued on May 14, 1996 9 OPSEU IS routmely provIded WIth InterpretatIve Bulletms through the Jomt Employment StabilIty Sub-CommIttee 10 The MmIstry mformed the gnevor that he was melIgible for the "cross- mIll1stry dIsplacement" As a result the gnevance was filed on November 14, 1997 11 The employer has not assessed whether the gnevor IS qualIfied at the standard reqUIred for dIsplacement mto the pOSItIon at Kttchener- Waterloo The partIes agree that If the arbItrator rules m the gnevor s favour, then the gnevor would be consIdered for dIsplacement purposes. 12 The partIes agree that the word "pOSItIOn" means dIfferent thmgs m dIfferent artIcles of the OPSEU collectIve agreement - see for example OPSEU (Union Grievance ) and Management Board Secretariat GSB #459/96, OPSEU #96U058 (Bnggs), and OPSEU (Young) and Ministrv or Health GSB #566/92 (Kaplan) The partIes arguments may be bnefly summarIzed The UnIon contends that a proper mterpretatlon of artIcle 20 4 1 (f)(lll) requIres that the grlevor be offered displacement nghts 7 to the positIon held by Susan Hutchmsol1 m Kltchener- Waterloo For the UOlon Mr Leeb urges that the word "posItIOn" m subsectIOn (lll) must be broadly mterpreted and that the locatIOn of the posItion prevIOusly held should not be the operatIve factor The thrust of the UnIon s argument was to the effect that whIle location may be a factor m any functIOnal analysIs of duties performed gIven the wordmg of subsectIOn (m), It cannot overnde senIonty fIghts. Reference was made to the followmg authorItIes. OPSEU (Young) and Ministrv of Health, supra, OPSEU (Anderson) and Ministrv of Natural Resources GSB #471/86 (Samuels), OPSEU (W Furnzss) and Mmistry of Natural Resources GSB #602/86 (Slone), OPSEU (Kauffeldt) and Mmistrv of Natural Resources GSB #771189 OPSEU #89C943 (Wilson) and OPSEU (Munro and Boden) and Ministrv of Natural Resources GSB #677/88, #847/88, OPSEU #88B817, #88C157 (Fraser) The employer candIdly acknowledged that m mterpretmg the word "posItIOn" m artIcle 204 l(f)(in) It followed the approach taken m Its InterpretIve Bulletm The employer agreed that It was a restrIctIve approach m whIch posItIon for redeployment and locatIon of headquarters are mextncably lmked Although no relIance was placed upon estoppel Ms, Hoad stressed the fact that the employer's mterpretatlon has remamed m effect for almost two years unchallenged by any UnIon polIcy grIevance In the employer's VIew, locatIOn of a posItIon prevIOusly held beyond the 40 kIn radIUs creates a dIfferent posItIon wlthm the meanmg of subsectIon (m) In support, two authontles were cIted OPSE U (D Seebach, et a/) and Mmlstn of Transportatwn and CommunIcatwns GSB #0480/85 etc (Roberts) and OPSEU (MacIntosh) and Ml!11strv or Nalllrcd Resources GSB 8 #2587/96 OPSEU #97B174 (Grew) ArtIcle 20 of the present collectIve agreement entItled "Employment StabilIty" deals WIth the nghts of a surplus employee "where a lay-off may occur for any reason" ArtIcle 20 4 I IS, In effect, a procedural code whereby specIfied dIsplacement nghts In sequentIal order are avaIlable to employees based on semorIty Each step of the procedure IS self- contaIned To my mmd, It would appear that the partIes have chosen then words very carefully Indeed It may be saId that there IS no room for an arbItrator to Import words as the partIes themselves have proVIded the answer m the words used. The words must be gIVen thelf plam grammatIcal meanmg I recogmze the general rule that one aSSIgns the same meanmg to the same word. On the other hand, words derIve then meanmg from the context WhICh may vary from artIcle to artIcle and from subsectIon to subsectIOn The case law referred to m the agreed statement of facts makes It clear that "the word 'pOSItIOn' means dIfferent thIngs In dIfferent artIcles of the OPSEU collectIve agreement." In my vIew, under artIcle 20 4 l(f) the word "pOSItIon" IS used m two senses under subsectIon (n), expressed m the present tense to keep It wIthm a 40 kIn radIUS for purposes of admInIstratiOn under subsectIOn (Ill) expressed In the past tense to look at the surplus employee s prevIous expenence 9 In the latter context expenence IS not related to locatIOn The government's InterpretIve BulletIn IS not defimtIve of the Issue - It IS merely the employer's argument. The Interpretive bulletIn, persuasIve as It may be, does not gIve an arbItrator lIcence to Import words Into subsectIOn (m) In describIng the word "posItIOn" at page 6 of the InterpretIve bulletIn, Management Board Secretanat has tned to cobble together an all purpose InterpretatIon To my mInd that descnptIon IS not helpful as each paragraph In artIcle 20 4 l( a) to (f) InclUSIVe must be read and must stand on ItS own ment. ArtIcle 204 l(f) appears to have been drafted carefully and wIth consIderable thought. Based on the words chosen by the partIes In subsectIOn (m) expenence does not depend on the fact that It was obtaIned wIthIn a 40 km radIUs of the surplus employee's headquarters, rather It depends on whether the expenence gamed from work performed 10 a pOSItIon prevIously held by the surplus employee was the same or substantIally SImilar to the work currently performed by a less semor employee I thInk It gIves a falf and reasonable mterpretatIon to semonty nghts, I find support for thIS InterpretatIOn In the artIcle relatIng to seasonal employees ArtIcle 32,2.2 con tams the followmg defImtlOn 32.2.2 I-or the purposes of Article 32,2, same position IS defined as the posItion 111 the same claSSificatIOn, 111 the same organ17atlOnal or adm1l11stratIye Ul1lt and work locatlon whIch Ihe employee held pnor to the seasonal break 10 For seasonal employees the parties have made the meanlllg plalll by defillltIOn ArtIcle 204 1 contallls no such deflllltIon of the word "posItIOn" ThIS rulIng may assIst the partIes III resolvlllg the remammg Issues. At the request of the partIes, however, I retam JunsdICtIon m the event of any further dIfficulty encountered. -yfu DATED at Brantford, Ontano thIS 24th day of February 1998 ~ ~/- ~ ~- ~ ?';7 RICHARD L. VERITY, Q C. - VICE-CHAIR