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HomeMy WebLinkAbout1998-1587.Bouchard.02-10-30 Decision ~M~ om~o EMPLOYES DE L4 COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONEITELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILEITELECOPIE. (416) 326-1396 GSB#1587/98 UNION#99C021 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OntaTIo PublIc ServIce Employees Umon (Bouchard) Grievor -and- The Crown In RIght of OntaTIo (Mimstry of the EnvIronment) Employer BEFORE Richard Brown Vice-Chair FOR THE UNION Don MartIn GTIevance Officer OntaTIO PublIc ServIce Employees Umon FOR THE EMPLOYER Len HatzIs Counsel Management Board SecretaTIat HEARING January 15 & October 15 2002 2 DECISION In a gnevance dated December 11, 1998, MIchel Bouchard objected to the mInIstry's refusal to recall hun from layoff to fill a vacancy In the posItIOn of E04 abatement officer ThIS decIsIOn deals exclusIvely wIth the Issue of whether the questIOn posed by tlus gnevance IS the same as the one already answered In a decIsIOn of tlus board dISmISSIng an earher gnevance by Mr Bouchard on the ground that he was not quahfied to dIsplace a Jumor employee workIng as an E04 abatement officer The partIes agree tlus gnevance would be barred by the doctnne of Issue estoppel If the questIOn raised by It IS the same as the one prevIOusly decIded. I Mr Bouchard's first gnevance, dated January 24, 1997, was dIsmIssed by me In Ontarzo Puhlzc Servlce Employees' Unzon (Bouchard) and Mlnzstry of EnVlronment and Energy, decIsIOn dated September 9, 1999, GSB FIle No 0055/97 The facts gIVIng nse to that gnevance and the Issue between the partIes are summarIzed In the first two paragraphs MIchel Bouchard was employed by the MInIstry of the EnVIromnent as an air quahty techmcIan In Cornwall from 1979 untIl 1997 when Ius posItIOn was declared surplus He receIved a surplus notIce In January and ceased workIng In July As an air quahty techmcIan, Mr Bouchard was classIfied as an envIromnental officer 4 (E04) After reCeIVIng the surplus notIce, he dechned an offer of employment as a bIlIngual semor envIromnental officer at the SpIlls ActIOn Centre (SAC) In Toronto, also an E04 Job The umon contends Mr Bouchard was quahfied to work as an E04 abatement officer and, therefore, 3 should have been allowed to bump the least semor abatement officer In Cornwall Marc Robert, an abatement officer at that locatIOn Jumor to the gnevor, attended most days of the heanng and partIcIpated actIvely when In attendance The sole Issue IS whether Mr Bouchard was "quahfied" to work as an abatement officer wItlun the meanIng of artIcle 20 4 1 of the collectIve agreement In contendIng Mr Bouchard met tlus standard, the umon advanced two arguments The first contentIOn IS that the gnevor was quahfied to work as an E04 abatement officer wIthout any addItIonal traInIng In the alternatIve, the umon contends he would have been quahfied If gIven the traInIng offered to all employees who assume the role of abatement officer AccordIng to tlus alternatIve argument, the gnevor was quahfied wItlun the meanIng of artIcle 24 4 1 because he was no less quahfied than some one appoInted to fill a vacancy who would be offered tlus traInIng (page 1) HavIng revIewed the eVIdence, I turned to the umon's first submIssIOn and stated. The umon's pnmary argument IS that the gnevor meets the test of "present abIhty" expounded In OPSEU (Loebel) and Mlnzstry of Munzclpal Affazrs and Houszng, dated Feb 15, 1983, GSB No 331/82 (Venty) SpeakIng for the maJonty In Loebel, Mr Venty wrote To detennIne If a surplus employee IS quahfied to perform the work pursuant to ArtIcle 242 3, the Board accepts Management's argument of "present abllzty" to the extent of mlnzmum competence In all components of the Job reqUIrements To adopt any hIgher test of present abIhty would be to destroy the sIgmficance of ArtIcle 24 2 3 That ArtIcle has been mutually agreed upon by the PartIes to benefit surplus employees by affordIng them certaIn preferentIal nghts of appoIntment Few, If any, surplus employees would succeed In mOVIng from one MInIStry to another If the accepted test were more stnngent than mInunum competence In all of the maJor components of the Job (pages 21 and 22, emphasIs added) 4 Mr Venty went on to address the matter of traInIng There IS no doubt Dr Loebel could have become quahfied to perfonn the Job In tune However, that IS not the Issue before tlus Board. In the present wordIng of artIcle 24 2 3 there lS no prOVlszon for a famllzarzzatzon or traznzng perzod (page 23, emphasIs added) In January of 1997, dId Mr Bouchard have the "present abIhty" to work as an E04 abatement officer? The foregoIng analysIs leads me to conclude Mr Bouchard dId not have the reqUIred understandIng of Industnal and mUnIcIpal enterpnse and of envIronInentallaw and procedure In the words of Loebel, he lacked the "present abIhty" to functIOn as an E04 abatement officer (pages 14 to 16) The unIon's second submIssIOn was that the "present abIhty" test In Loebel dId not apply to the gnevor AddressIng tlus contentIOn, I wrote The unIon's alternatIve argument IS that the Mr Bouchard falls wItlun an exceptIOn to the test of "present abIhty " In tlus regard, Counsel referred to a senes of cases begInnIng wIth OPSEU (Hlll and Campbell) andMlnzstry of Labour, dated Oct 12,1984, GSB No 492/83 (Roberts), a case InvolvIng vacant posItIOns HavIng been declared surplus, the two gnevors sought work as occupatIOnal health and safety officers All candIdates appoInted to tlus posItIOn underwent a ten-week traInIng course The argument advanced by the employer In Hlll and Campbell was summanzed by Mr Roberts as follows Here, the MInIStry was not lookIng for "present abIhty", rather It was lookIng for an employee who would possess "present abIhty" upon completIOn of a mandatory ten-week traInIng course whIch was reqUIred to be completed by all persons lured as OccupatIOnal Health and Safety Officers It was acknowledged that If eIther of the gnevors had been successful, they would have been put through tlus course (page 19) In other words, the employer conceded the gnevors should not be deemed unquahfied merely because they had not completed the 5 mInIstry's traInIng program The employer's argument was that the gnevors lacked the basIc quahficatIOns reqUIred to be lured and undergo tlus traInIng Mr Roberts agreed wIth respect to one gnevor but not the other GIven the employer's conceSSIOn about It'S traInIng program, the board was not called upon to decIde whether the lack of such traInIng rendered an employee unquahfied, and Mr Roberts refraIned from dOIng so AccordIngly, If Hlll and Campbell recognIzes an exceptIOn to the test of "present abIhty", one whIch apphes where all new appoIntees undergo mandatory traInIng, the exceptIOn was created by way of employer conceSSIOn rather than Board ruhng It mIght be noted the conceSSIOn was made In the context of a surplus employee filhng a vacancy, not In the context of one employee dIsplacIng another The last case In tlus senes, and the one upon whIch UnIon counsel rehes most heavIly, IS OPSEU (Bazznet) and Mlnzstry of EnVlronment and Energy, dated Apnll4, 1998 (Mikus) The gnevor In that case sought to dIsplace an InvestIgatIOns officer after beIng declared surplus All employees appoInted to tlus posItIOn took SIX weeks of traInIng, two weeks at the outset and the remaInIng four weeks spread over the course of two years The employer contended the gnevor was unquahfied because he dId not know what was taught dunng the first two weeks HavIng revIewed the relevant legal prIncIples and the eVIdence, Ms MIkus apphed the law to the facts before her She first ruled Mr BazInet was quahfied to do the Job he desIred wIthout any traInIng In summary, gIven the wIde range of dutIes set out In the Job specIficatIOn [the employer's] few areas of concern are not sufficIent to conclude the gnevor IS unable to do the core reqUIrements of the Job It IS my VIew that IS sImply a matter of superVISIOn rather than traInIng (page 44) HavIng decIded the gnevor already had the abIhty to do the Job, Ms Mikus could have allowed the gnevance wIthout saYIng anytlung about what should happen In the hypothetIcal sItuatIOn of a gnevor who would acqUIre tlus abIhty only after further traInIng Nonetheless, she went on In the next paragraph to address tlus Issue In the folloWIng oblter ruhng 6 In any event, like the Hlll and Campbell case, the Employer has a mandatory traInIng program whIch all employees must attend. If the first two weeks are a mandatory program sunIlar to that In the Hlll and Campbell case, the gnevor wIll no doubt be reqUIred to attend those two weeks of traInIng before assumIng any Job dutIes There IS no questIOn In my mInd that, after the first two weeks, he would be capable of perfonnIng the core dutIes of the Job wIthout dIfficulty (page 44) Before these oblter comments In Bazznet, the Board had not ruled upon any exceptIOn to the Loebel standard. The employer acknowledged an exceptIOn In Hlll and Campbell In the context of a vacancy, but there was no clear acknowledgement of an exceptIOn In Smlth In the context of a dIsplacement The oblter ruhng In Bazznet took the exceptIOn conceded In Hlll and Campbell, In the settIng of redeployment to a vacant posItIOn, and apphed It to dIsplacement of an Incumbent employee The ruhng was made wIthout acknowledgIng tlus factual dIstInctIOn and wIthout consIdenng whether It was sIgnIficant The propnety of such an extensIOn ments consIderatIOn There IS a compelhng ratIOnale for recognIZIng an exceptIOn to the present abIhty test In the context of a vacancy In a posItIOn for whIch traInIng IS mandatory When a posItIOn IS vacant, whoever IS appoInted to fill It would have to be traIned. A surplus employee IS no dIfferent than anyone else In tlus respect It would be absurd for the employer to argue the surplus employee IS unquahfied because he or she lacks traInIng whIch every other candIdate also lacks, because no- one would be quahfied accordIng to tlus argument ThIS absurdIty probably explaIns the conceSSIOn made by management In Hlll and Campbell When there IS no vacancy, the sItuatIOn IS dIfferent As the Incumbent has completed the mandatory traInIng, there IS no need to traIn anyone, unless the Incumbent IS dIsplaced by the surplus employee In the context of a dIsplacement, It IS not absurd for the employer to argue the surplus employee IS unquahfied because he or she reqUIres traInIng whIch the Incumbent already has In other words, the Saine ratIOnale does not eXIst for a departure from the nonnal standard of "present abIhty" set out In Loebel ThIS standard was estabhshed at least fifteen years ago and has not been changed In collectIve bargaInIng In the IntervenIng years In 7 the absence of some absurdIty, an arbItrator has no authonty to modIfy a long-estabhshed rule whIch the partIes to the collectIve agreement have seen fit not to alter In succeSSIve rounds of negotIatIOns AccordIngly, I am bound to apply the ruhng In Loebel to the gnevance at hand. (pages 16 to 20) II The Court of Appeal SUCCInctly restated the elements of Issue estoppel In Rasanen v Rosemount Industrzes Llmlted (1994), 17 O.R. (3d) 267 The proceedIng before us Involves Issue estoppel Lord Guest summanzed the reqUIrements of Issue estoppel as follows In Carl Zelss, supra, at p 935 1) that the Saine questIOn has been decIded, 2) that the JudIcial decIsIOn whIch IS Said to create the estoppel was final, and 3) that the partIes to the JudIcial decIsIOn or theIr pnvIes were the same persons as the partIes to the proceedIngs In whIch the estoppel IS raised or theIr pnvIes The proper InqUIry In decIdIng whether the reqUIrements have been met IS whether the questIOn to be decIded In these proceedIngs IS the same as was contested In the earher proceedIngs and was, moreover, so fundamental to the decIsIOn that It could not stand wIthout the detennInatIOn of that questIOn III Both ofMr Bouchard's gnevances were filed under the 1994-98 collectIve agreement The first was decIded under artIcle 20 4 entItled "DIsplacement" The relevant portIOns state 8 20 4 1 An employee has receIved notIce of lay-off pursuant to ArtIcle 202 (NotIce and Pay In LIeu), and who has not been assIgned In accordance wIth the cntena of ArtIcle 20 5 (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 senIonty In the same classIficatIOn and the same mInIstry as the employee's surplus posItIOn If such employee has less senIonty than the surplus employee, he or she shall be dIsplaced by the surplus employee provIded that (1) such employee's headquarters IS located wItlun a forty (40) kIlometre radms of the headquarters of the surplus employee, and (11) the surplus employee lS qualified to perform the work of the ldentified employee (emphasIs added) The Instant gnevance anses under artIcle 20 6, entItled "Recall" The relevant portIOns state 20 6 1 A person who has been laid off IS entItled to be assIgned to a posItIOn that becomes vacant wItlun twenty-four (24) months after Ius or her layoff provIded that (a) the vacant posItIOn IS In the same classIficatIOn and mInIstry as Ius or her fonner posItIOn, and (b) the vacant posItIOn IS wItlun a forty (40) kIlometre radms of Ius or her fonner headquarters, and (c) he or she lS qualified to peiform the requlred dutles, and (d) there IS no other person who IS quahfied to perform the reqUIred dutIes, who has a greater length of contInUOUS serVIce and who IS ehgIble for assIgnment to the vacancy eIther 9 pursuant to ArtIcle 20 6 or ArtIcle 20 5 (Redeployment) (emphasIs added) The mInIstry contends there IS no dIfference In meanIng between "quahfied to perfonn the work of the IdentIfied employee" In artIcle 20 4 l(a) (n) and "quahfied to perform the reqUIred dutIes" In artIcle 20 6 1 (c) The mInIstry also submIts the case law has utIhzed the "present abIhty" test not only In the context of dIsplacement of a JUnIor employee but also In the context of redeployment to a vacant posItIOn Counsel for the mInIstry notes Loebel apphed tlus test to redeployment and my decIsIOn on Mr Bouchard's first gnevance apphed the Saine test to dIsplacement Based on the premIse that recall IS analogous to redeployment, Insofar as both entaIl an employee clannIng a vacant posItIOn, counsel argues the case law dIctates that both be governed by the test of "present abIhty " The UnIon submIts the "reqUIred dutIes" In artIcle 20 6 1 (c) are only a subset of those compnSIng the "work" In artIcle 204 l(a) In addItIon, I was asked to VIew recall dIfferently than dIsplacement or redeployment, because recall represents "the last chance of an employee already on layoff" The UnIon also rehes upon the second and tlurd last paragraphs of the foregoIng passage from my earher decIsIOn, where I drew a dIstInctIOn between clannIng a vacant posItIOn and seekIng to dIsplace a JUnIor employee, a dIstInctIOn apphcable to the Hlll and Campbell exceptIOn to the "present abIhty" test IV In general, tlus board has taken the same approach when asseSSIng a surplus employee's quahficatIOns to claim a posItIOn through eIther redeployment to 10 a vacancy or dIsplacement of someone wIth less senIonty The "present abIhty" test was apphed to redeployment In Loebel and to dIsplacement In my decIsIOn on Mr Bouchard's first gnevance As recall IS analogous to redeployment, In the sense that both Involve filhng a vacant posItIOn, the "present abIhty test" generally should be apphed to recall There IS an Important exceptIOn to the general rule that the "present abIhty" test IS utIhzed to assess quahficatIOns when deahng wIth dIsplacement, redeployment or recall In Hlll and Campbell, the employer conceded tlus test dId not apply to a vacancy for whIch any successful candIdate would have to be traIned. In my decIsIOn on the first gnevance, I explaIned why such an exceptIOn was warranted when a surplus employee claims a vacancy but not when such a person seeks to dIsplace someone else ThIS explanatIOn warrants repetItIOn because It IS central to a detennInatIOn of whether the present gnevance IS barred by Issue estoppel There IS a compelhng ratIOnale for recognIZIng an exceptIOn to the present abIhty test In the context of a vacancy In a posItIOn for whIch traInIng IS mandatory When a posItIOn IS vacant, whoever IS appoInted to fill It would have to be traIned. A surplus employee IS no dIfferent than anyone else In tlus respect It would be absurd for the employer to argue the surplus employee IS unquahfied because he or she lacks traInIng whIch every other candIdate also lacks, because no- one would be quahfied accordIng to tlus argument ThIS absurdIty probably explaIns the conceSSIOn made by management In Hlll and Campbell When there IS no vacancy, the sItuatIOn IS dIfferent As the Incumbent has completed the mandatory traInIng, there IS no need to traIn anyone, unless the Incumbent IS dIsplaced by the surplus employee In the context of a dIsplacement, It IS not absurd for the employer to argue the surplus employee IS unquahfied because he or she reqUIres traInIng whIch the Incumbent already has In other words, the Saine ratIOnale does not eXIst for a departure from the nonnal standard of "present abIhty" set out In Loebel (pages 19 and 20) 11 In short, where traInIng for a posItIOn IS mandatory, the present abIhty test apphes to dIsplacement of a JUnIor employee but not to filhng vacanCIes In other words, where there IS mandatory traInIng, the questIOn arISIng from a dIsplacement gnevance IS dIfferent than the one anSIng from a gnevance about redeployment or recall V In the case at hand, there IS a factual dIspute as to whether employees appoInted to the posItIOn of abatement officer E04 undergo mandatory traInIng My first decIsIOn summarIzed the eVIdence led on tlus subJect In addItIon to completIng the courses taken by Mr Bouchard, new abatement officers take a number of other mInIstry courses and work under the watchful eye of those wIth more expenence Some officers start dOIng abatement work at the E02 level, others at the E03 level and stIll others at the E04 level Whatever the pOInt of entry, new abatement officers undergo a traInIng program compnsed of a senes of 100 level courses, offered by the mInIstry, and on-the Job tutelage from seasoned officers and supervIsors New officers take the full range of 100 level courses wIth mInor exceptIOn An officer may be exempted from a course If Ius or her background renders It redundant (pages 8 and 9) HavIng concluded that the "mandatory traInIng" exceptIOn to the "present abIhty" test dId not apply to dIsplacement, I was not reqUIred to make any factual detennInatIOn as to whether traInIng for the posItIOn of abatement officer E04 was mandatory, and I dId not do so In my ear her award. VI My conclusIOn can be bnefly summanzed. The questIOn posed by Mr Bouchard's recall gnevance would be the dIfferent than the one posed by Ius 12 earher dIsplacement gnevance If there was mandatory traInIng for the posItIOn of abatement officer E04 at the relevant tnne The two questIOns would be the same If there was not mandatory traInIng A final ruhng on the apphcatIOn of the doctnne of Issue estoppel to the second gnevance must aWait a resolutIOn of the factual dIspute relatIng to traInIng Dated at Toronto tlus 30th day of October 2002 d~ RIchard Brown VIce-Chair