HomeMy WebLinkAbout1999-0573.Pilon et al.03-06-02 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
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IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano Pubhc ServIce Employees Umon
(PIlon et al) Grievor
- and -
The Crown In RIght of Ontano
(Mimstry of Commumty and SocIal ServIces) Employer
BEFORE Richard Brown Vice-Chair
FOR THE UNION DavId Wnght
Ryder Wnght Blair & Doyle
Barnsters and SOhCltorS
FOR THE EMPLOYER Stephen Patterson
AssocIate DIrector Labour PractIce Group
Management Board Secretanat
HEARING February 3 4 5 & 18 and Apnl16 2003
2
DECISION
These gnevances contend the MInIstry Improperly laid off employees In the
classIficatIOn of Parental Support Worker (PSW) Some of the work done by PSWs
was transferred to lawyers In the MInIStry'S legal servIces branch The UnIon
contends the reassIgnment of these dutIes contravened an Imphed term of the
collectIve agreement, protectIng the work of the bargaInIng UnIt, and also resulted In
an Improper layoff The MInIStry ceased provIdIng some serVIces performed by
PSWs The tennInatIOn of these serVIces IS challenged by the UnIon as an
ImpermIssible exerCIse of management nghts
I
The gnevances arose agaInst the backdrop of a reorganIZatIOn of the Ontano welfare
system Implemented In 1998 and 1999 and described In my first Intenm decIsIOn
dated November 5, 2001
PSWs worked In the MInIstry's local offices TheIr pnmary functIOn was to
reduce the cost of benefits paid to welfare recIpIents by recovenng mOnIes to
whIch they were entItled by way of spousal support or chIld support The
welfare beneficIarIes wIth whom PSWs worked were sole-support parents or
dIsabled persons ThIS work occurred under the auspIces of the Famzly
Benefits Act (FBA)
The FBA was repealed along wlth the General We((are Act whIch had
been admInIstered by mUnIcIpahtIes These two pIeces of legIslatIOn were
replaced by the OntarlO Dlsabllzty Support Program Act (ODSP A),
admInIstered by the MinIstry, and the OntarlO Works Act, admInIstered by
mUnIcIpal dehvery agents Under the new legIslatIve framework, dIsabled
persons remaIn wIth the JunsdIctIOn of the MInIStry but sole-support parents
fall under the JunsdIctIOn of mUnIcIpal dehvery agents
The IntroductIOn of a new welfare regIme dId not change the
substantIve law concernIng the relatIOnslllP between welfare benefits and
support payments The MinIstry reqUIres mUnIcIpahtIes to employ FamIly
Support Workers (FSWs) who work wIth sIngle parents and do the same tasks
as PSWs dId The ODSPA also provIdes for the appoIntment ofFSWs wIthIn
3
the MInIstry At least some PSWs were appoInted as FSWs by the MInIstry
dunng the transItIOnal penod between the old and new legIslatIve regImes, but
all PSWs and FSWs were surplussed when the files of sole-support parent
were transferred to mUnIcIpahtIes (pages 3 and 4)
The current legIslatIve framework stIll reqUIres welfare recIpIents to make
"reasonable efforts" to obtaIn any form of Income to whIch they are entItled,
IncludIng cluld or spousal support, and allows the MInIStry to reduce theIr welfare
benefits by the amount of Income whIch they receIve or could have receIved If
reasonable efforts had been made
PSWs assIsted welfare chents to make arrangements for spousal or cluld
support by negotIatIng agreements, obtaInIng famIly court orders, and respondIng to
apphcatIOns In the same level of court to reduce support payments Where an
entItlement to support had been assIgned to the MInIStry by a chent, and the payor
sought to reduce or rescInd arrears In famIly court, PSWs defended the MInIstry's
Interest They never appeared In supenor court proceedIngs
II
The work transferred from PSWs to lawyers In the legal serVIces branch IS defendIng
the MInIstry's Interest In arrears of support payments assIgned to It by dIsabled
chents PSWs perfonned tlus functIOn In both provIncial famIly court and unIfied
famIly court These court appearances and the preparatIOn for them consumed a
relatIvely small portIOn of the workIng hours ofPSWs Before the reorganIZatIOn of
the welfare system, lawyers from the legal serVIces branch defended arrears In
supenor court proceedIngs, but they dId not appear In famIly court
CIndy Crandall IS team leader for the seven lawyers In the famIly law group at
the legal serVIces branch In Toronto She testIfied SInce late 1999 three lawyers In
her group have defended the MinIstry's Interest In arrears for all famIly court cases
heard In Toronto and Brampton, some such cases heard In MIlton and a very small
number of cases heard In OakvIlle and OrangevIlle All remaInIng famIly court work
4
In the prOVInce has been assIgned to outsIde counsel Asked In cross-eXamInatIOn
about the amount of tune spent by MinIstry lawyers defendIng arrears, Ms Crandall
conceded the number of full-tIme-eqUIvalent posItIOns devoted to tlus work
Increased from two In 1998 to four In early 2003 when she testIfied. She dId not
suggest any part of the Increase from two to four was attributable to growth In the
volume of supenor court work.
Based upon Ms Crandall's conceSSIOn, counsel for the UnIon contended the
transfer of famIly court work from PSWs to the legal servIces branch entailed
enough work for two employees When I asked employer counsel about tlus factual
contentIOn, he dechned to agree wIth It but said he would not be makIng "lengthy
submIssIOns" on the pOInt Dunng hIS subsequent argument, he made no mentIOn of
how many legal posItIOns were created by the transfer of famIly court work.
AccordIngly, I conclude the transfer dId Increase the comphment of lawyers by two
II
The UnIon contended the transfer of famIly court work from PSWs to the legal
servIces branch contravenes an Imphed contractual prohibItIon agaInst the
assIgnment of bargaInIng-unIt work to employees outsIde the UnIt In the first
Intenm decIsIOn, I addressed tlus argument In a prelunInary manner, concludIng the
agreement at hand contaIned such an Imphed term and hstIng the cntena to be
weIghed In determInIng whether It had been vIOlated.
Counsel for OPSEU rehes upon two decIsIOns Irwzn Toy Llmlted and Unzted
Steelworkers of Amerzca (1982),6 L.A.C (3rd) 328 (Burkett), and North
West Company Inc and Retazl, Wholesale & Department Store Unwn (1996),
57 L.A.C (4th) 158 In both of these cases, the UnIon objected to a supervIsor
perfonnIng work of the bargaInIng UnIt
In Irwzn Toy, a number of foremen performed the sort of work done by
employees represented by the UnIon Mr Burkett Interpreted the collectIve
agreement as contaInIng an Imphed tenn protectIng the work of the bargaInIng
UnIt He wrote
5
We start by observIng the absence of an express restnctIOn upon the
assIgnment of bargaInIng UnIt work IS not dIsposItIve The language of
most collectIve agreements whIch sets out the classIficatIOns covered by
the agreement, creates senIonty and recall nghts and estabhshes Job
postIng procedures, gIves nse to an Imphed restnctIOn upon a
company's nght to assIgn bargaInIng UnIt work to superVIsors ThIS
Imphed restnctIOn has been unIversally recognIzed by arbItrators The
recognItIOn of thIS Imphed restnctIOn forms a part of the arbItral
backdrop agaInst whIch collectIve agreements are negotIated and
agaInst whIch they must be Interpreted. (pages 333 and 334)
ThIS passage speaks only of supervIsors but It IS Immediately followed by a
quotatIOn from an unreported award by the same arbItrator, Becker Mzlk Co
and Teamsters, decIsIOn dated August 7, 1980, IndIcatIng the same legal
framework apphes more expansIvely to "non-bargaInIng UnIt employees,
IncludIng supervIsors"
TurnIng to the questIOn of how much bargaInIng UnIt work a superVIsor
may perform wIthout contravenIng the collectIve agreement, ArbItrator
Burkett wrote
When reference IS had to the basIs of the Imphed restnctIOn upon
management's nght to assIgn bargaInIng UnIt work to supervIsors we
are of the VIew that the amount of bargaInIng UnIt work assIgned to a
supervIsor necessary to tngger the Imphed restnctIOn must be very
close to, If not, an amount whIch would occupy a bargaInIng UnIt
employee for a full shIft on an ongoIng basIs The Imphed restnctIOn
flows from the clauses In the collectIve agreement deahng wIth
senIonty, Job postIng and lay-off and recall These clauses gIve nse to
nghts In connectIOn wIth Job bIddIng, bumpIng and recall In respect of
certaIn Jobs or Job vacanCIes These nghts, however, can only be
exercIsed In respect of Jobs whIch would occupy a bargaInIng UnIt
employee for most If not all of a full ShIft It follows that If the Imphed
restnctIOn flows from a balancIng of management's nght to assIgn
bargaInIng UnIt work to supervIsors and the employee's nght to claim a
Job, the amount of work In Issue must be sufficIent to tngger the
exerCIse of the employee's Job bIddIng, bumpIng or recall nghts
(page 335)
In North West Co , ArbItrator Freedman ruled the employer had
contravened the agreement by allowIng the store manager to do bargaInIng
UnIt work five or SIX hours a day He also held the collectIve agreement
6
contaIned an Imphed term ImpOSIng restnctIOns on the assIgnment of such
work to "non-unIt members" (page 168)
NotIng these two awards Involved a foreman or manager, counsel for
the employer contended they have no apphcatIOn to non-UnIt employees who
are not managenal ThIS contentIOn IS dIsputed by the UnIon and IS not
endorsed by counsel for AMAPCEO It flIes In the face of a large body of
arbItral precedent summanzed by Brown and Beatty In Canadzan Labour
ArbltratlOn HavIng dIscussed the Imphed restnctIOn on the performance of
bargaInIng UnIt work by supervIsors, these authors noted a snnIlar restnctIOn
apphes to other employees outsIde the UnIt
ArbItrators have followed a sImIlar approach wIth respect to employees
other than supervIsory personnel who are excluded from the collectIve
agreement (5 1400)
Based upon the numerous awards cIted by Brown and Beatty, I have no
hesItatIOn In concludIng the collectIve agreement at hand contaInS an Imphed
restnctIOn on the performance of bargaInIng UnIt work by all employees
outsIde the bargaInIng UnIt, regardless of whether they have managenal
responsibIhtIes
The determInatIOn of whether thIS restnctIOn has been vIOlated In the
case at hand must aWait further factual stIpulatIOns or eVIdence and further
argument At least some of the factors to be consIdered when dealIng wIth
managers are addressed In Irwzn Toy and North West Co Brown and Beatty
have summanzed the factors consIdered by arbItrators when deahng wIth
other excluded employees
ArbItrators have followed a snnIlar approach wIth respect to employees
other than supervIsory personnel who are excluded from the collectIve
agreement Thus, generally emploYIng a quantItatIve analysIs, where the
work IS necessanly IncIdental, or where the work assIgned was no more
than 15 to 20% of the [non-unIt] employee's dutIes, It was held not to be
sufficIent to bnng the assIgnee Into the bargaInIng UnIt SnnIlarly,
where there IS an overlap between the dutIes performed by two dIfferent
bargaInIng UnIts, It would be more dIfficult to demonstrate that a
reorganIZatIOn resultIng In a shIft of some work from one bargaInIng
UnIt to another vIOlated the collectIve agreement? Conversely, If the
assIgned dutIes represented a substantIal amount or greater proportIOn
of IllS [1 e the non-UnIt employee's] work, or took up one-tlllrd of the
employee's workIng hours, In excess of 50%, or 90% of the employee's
tnne, the OpposIte conclusIOn was reached. However, In these
cIrcumstances, arbItrators have also had regard to the quahty and the
7
nature of the work, as well as to the quantIty assIgned, In assessIng the
Impact of the assIgnment upon the bargaInIng UnIt For example, where
the quantIty of work performed was small and reqUIred a lesser skIll
content, an assIgnment from a maIntenance UnIt to a productIOn
bargaInIng UnIt was held not to be contrary to the collectIve agreement
Indeed, one arbItrator has suggested that the quahty or skIll content of
the work ought to be the sole cntenon In detennInIng whether or not the
assIgnment brought the employee Into the UnIt (5 1400)
In short, the relevant factors Include the quantIty of work In dIspute, the
quahty of that work and whether the dutIes regularly assIgned to members of
the bargaInIng UnIt overlap the regular dutIes of the other employees
concerned. (pages 17 to 20)
The partIes dIsagree as to how each of the three cntena IdentIfied In tlus prelunInary
ruhng--I e quantIty of work, quahty of work and overlap of dutIes--apphes to the
facts at hand.
As to the quantIty of work cntenon, UnIon counsel notes the amount of arrears
work In famIly court transferred from PSWs to three lawyers In the legal serVIces
branch IS sufficIent to occupy two of them on a full-tIme basIs, whereas employer
counsel notes thIS type of work consumed a very small part of the workIng hours of
each PSW In the passage quoted above, Brown and Beatty focus upon the tune
devoted to the contested work by those outsIde the bargaInIng UnIt ArbItrator
Burkett In Irwzn Toy adopted much the same focus, suggestIng there would be a
breach of the collectIve agreement If the amount of bargaInIng UnIt work assIgned to
a supervIsor was sufficIent to occupy an employee In the UnIt on a full-tIme basIs
He came to thIS conclusIOn because the purpose of the Imphed term protectIng the
work of the UnIt IS to ensure an employee's Job secunty, based upon senIonty nghts
under the collectIve agreement, IS not undercut by transferrIng work outsIde the UnIt
I agree wIth hIS analYSIS As the amount of work transferred to the legal serVIces
branch IS sufficIent to occupy two people, tlus factor weIghs In favour of findIng the
collectIve agreement has been vIOlated.
8
As to the quahty of work cntenon, UnIon counsel notes there IS no eVIdence
IndIcatIng PSWs lack the skIlls reqUIred to contInue defendIng arrears In famIly
court, whereas employer counsel notes lawyers In the legal servIces branch do not
perform the vast maJonty of dutIes hsted on the PSW posItIOn specIficatIOn whIch
counsel charactenzed as "provIdIng support to chents " In the absence of any
eVIdence demonstratIng a person called to the bar IS better sUIted to defendIng
arrears In famIly court than IS a PSW, I see no management Interest In transferrIng
thIS work to lawyers whIch should over-nde the Job secunty of members of the
bargaInIng UnIt In the context of detennInIng the preCIse scope of the Imphed term
protectIng the work of the UnIt
The thIrd cntenon IS overlap In dutIes UnIon counsel descnbes the dutIes In
Issue as defendIng arrears In famIly court and notes tlus work was performed
exclusIvely by PSWs untIl they were laid off DescribIng the pertInent dutIes more
broadly, as defendIng arrears In any level of court, employer counsel notes such
work was done by both PS W s and lawyers before the reorganIZatIOn of welfare
servIces, even though these two types of employees appeared In dIfferent levels of
court In support of the narrower descnptIOn, UnIon counsel argued an overlap In
dutIes IS relevant only In a sItuatIOn where It precludes separatIng the work done by
one group from that done by the other An example of such a scenano would be
regIstered practIcal nurses and regIstered nurses both changIng dressIngs for patIents
on a partIcular ward In a hospItal AccordIng to thIS hne of argument, an overlap of
tlus nature prevents both groups from clallnIng exclusIve ownershIp of theIr
common task because there would be no basIs for assIgnIng It to eIther Counsel for
the UnIon contended the sItuatIOn at hand IS dIfferent because PSWs defended arrears
In a dIfferent level of court than dId lawyers I agree UntIl the reorganIZatIOn of the
welfare system, the defense of arrears In famIly court was exclusIvely the functIOn of
PSWs The claim of bargaInIng UnIt employees to that work, as an enhancement to
9
theIr Job secunty, should not be dImInIShed by the defense of arrears by lawyers In
supenor court by lawyers
ThIS analysIs leads me to conclude the use of lawyers to defend arrears In
famIly court contravenes the Imphed contractual prohibItIon agaInst the assIgnment
of bargaInIng-unIt work to employees outsIde the UnIt ThIS work belongs to the
UnIon In the sense It must be done by members of the bargaInIng UnIt If It IS done at
all
III
The employer contended the defense of arrears In famIly court does not belong to
former PSWs In partIcular, even If It does belong to the UnIon In general The
Imphed tenn of the collectIve agreement, protectIng the work of the bargaInIng UnIt,
allows the UnIon to claim thIS work, but thIS term does not gIve one member of the
bargaInIng UnIt a greater claim than any another To found a claim on behalf of
fonner PSWs, the UnIon must rely upon the protectIOn agaInst layoff afforded to
them by artIcle 20 of the collectIve agreement
ThIS apphcatIOn of thIS artIcle was dIscussed In a prehmInary manner In the
first Interlln decIsIOn
OPSEU contends the layoff ofPSWs contravened artIcle 20 of the 1999-2001
collectIve agreement, Interpreted In accordance wIth s 22(4) of the PSA
ArtIcle 20 regulates the manner In whIch a lay-off IS Implemented wIthout
expressly saYIng when employees may be laid off In thIS respect, artIcle 20
dIffers from the prevIOUS artIcle 24 whIch stated a layoff may occur for one of
four reasons "shortage of work or funds or the abohtIOn of a posItIOn or other
matenal change In organIZatIOn" OPSEU submIts the omISSIOn of thIS
language from the extant agreement affects no substantIve legal change
because sectIOn 22(4) of the P SA contaInS precIsely the same hmItatIOns on
when a layoff may occur ThIS sectIOn states
A deputy mInIster may release from employment In accordance wIth
the regulatIOns any pubhc servant where he or she consIders It
necessary by reason of shortage o.ffund~,' or work or the abolztlOn o.f a
posltlOn or other matenal change zn organzzatlOn (emphasIs added)
10
OPSEU submIts the layoff ofPSWs In the CIrcumstances oftlus case was
Improper because none of the grounds specIfied In sectIOn 22(4) eXIsted. For
the purpose of tlus proceedIng, the MInIstry does not dIspute OPSEU's
contentIOn that a layoff under artIcle 20 IS permItted only on one of the
grounds specIfied In sectIOn 22(4) AccordIng to the MInIStry, the layoff of
PSWs was proper because It resulted from "the abohtIOn of a posItIOn or other
matenal change In organIZatIOn "
The two decIsIOns of tlus Board offenng the greatest gUIdance about the
apphcatIOn of sectIOn 22(4) to the Instant case are OPSEU (Skznner) and
Mlnzstry of Industry and Tourzsm (EllIS), GSB FIle No 226/79, decIsIOn dated
November 20,1981 and OPSEU (Babb et al) andMlnzstry ofCommunzty and
Soczal Servlces (WIlson), GSB FIle No 1173/88, decIsIOn dated August 8,
1990
The prIncIples estabhshed In these two cases provIde some gUIdance In
evaluatIng the arguments advanced In the case at hand At thIS stage, I restnct
my analysIs to the Issue of whether the posItIOns ofPSWs have been
abohshed wIthIn the meanIng of sectIOn 22(4) Only If the employer falls on
thIS front wIll there be any need to consIder the cntenon of "other matenal
change In organIZatIOn", a cntenon whIch IS more dIfficult to fathom
The decIsIOns In Skznner and Babb demonstrate In some CIrcumstances
a posItIOn can be abohshed even though ItS functIOns are shared between two
or more organIZatIOn UnIts and contInue to be performed. In Skznner, the
Board concluded the gnevor's old posItIOn had been elunInated, despIte most
of hIS dutIes beIng shared among several components of hIS mInIstry
LikewIse, the Board zn Babb IndIcated the gnevors' posItIOns would be
ehmInated If theIr bundle of dutIes were broken up upon transfer from
ORFUS to CSS, despIte the fact that all of theIr work remaIned wItlun the
bargaInIng UnIt In short, these cases IndIcate that the pubhc servIce ceasIng to
perform the contested work was not a necessary condItIon for the gnevors
beIng laid off In accordance wIth s 22(4)
The next questIOn to be addressed IS whether the gnevors were entItled
to follow part of theIr work wItlun the new organIzatIOnal structure The
decIsIOns In Skznner and Babb IndIcate a relevant factor In makIng thIS
detennInatIOn IS the SIze of each of the parts Into whIch the full set of PSW
dutIes have been spht In Skznner, most of the gnevor's functIOns contInued to
be perfonned but were dIvIded among four components of Ius mInIstry The
largest part appears to have been those dutIes whIch had consumed 30% of hIS
tune and were reassIgned to the Industnal Development Branch The decIsIOn
In Skznner demonstrates that an employee's posItIOn IS abohshed when ItS
dutIes are dIstributed among others and no one receIves more than 30% of
them The facts In Skznner stand In stark contrast to one of the scenanos
11
addressed by the Board In Babb The functIOns to whIch the Babb gnevors
had devoted most of theIr tune were to be transferred from ORFUS to CSS,
but no decIsIOn had been made yet as to how these functIOns would be
dIstributed wItlun the CSS workforce AddressIng the possIbIhty that tlus
bundle of dutIes would remaIn Intact after the transfer, the Board held In thIS
scenano the gnevors' posItIOns would contInue to eXIst ThIS conclusIOn dId
not mean they would be entItled to reclaim all of theIr fonner work. Rather,
the Board IndIcated they would be entItled to claim the largest portIOn of theIr
dutIes at CS S
Beanng In mInd the decIsIOns In Skznner and Babb, I conclude an
assIgnment compnsed of dutIes to whIch an employee devoted less than 50%
of her tIme IS one to whIch she has no entItlement Below the threshold of
50%, the dIfference between the new assIgnment and the employee's fonner
Job outweIghs the sImIlanty, and the extent of the dIfference IndIcates the old
posItIOn has been abohshed and a new one created. (pages 6 to 14)
As the defense of arrears In famIly court constItuted much less than 50% of the work
of a PSW, artIcle 20 does not entItle any of the gnevors to follow thIS work to the
legal serVIces branch
IV
PSWs assIsted both dIsabled chents and sIngle parents to secure and maIntaIn
arrangements for spousal or cluld support As sIngle parents are no longer the
responsibIhty of the MInIstry, the UnIon makes no claim to work wIth them
ClaimIng PSWs should have been retaIned by the MInIStry to assIst dIsabled chents,
the UnIon contends the employer's decIsIOn not to provIde tlus servIce was an
Improper exercIse of management nghts
CommencIng In January of 1998, Charlotte Wheeler led the team mandated to
develop an organIzatIOnal structure for the Ontano DIsabIhty Support Program
(ODSP) She testIfied the MInIStry'S InItIal decIsIOn not to Include PSWs In the
staffing model was made before the enablIng legIslatIOn was proclaimed In June of
1998 The transfer of files for sIngle parents from the MInIstry to mUnIcIpal dehvery
agents occurred one agent at a tune, begInnIng In the fall of 1998 and endIng In late
12
1999 Before files were transferred to each dehvery agent, the affected MInIstry
employees were reqUIred to decIde whether they would seek employment wIth that
agent In the summer of 1999, the MinIstry revIewed and affinned the InItIal
decIsIOn to ehmInate the posItIOn ofPSW, and all PSWs remaInIng In the employ of
the MInIstry receIved surplus notIces Ms Wheeler testIfied these notIces were
Issued In June of 1999 AccordIng to her, the reVIew of the staffing model occurred
before employees were notIfied of the ImpendIng layoff, but the bnefing note
produced In the course of the reVIew suggests otherwIse The note IS dated August
18, 1999 and says reVISIng the staffing model to Include PSWs "would Impact on the
entIre surplus SIng exercIse," suggestIng the note was wntten after surplus notIces
had been served
In a memorandum dated March 8, 2000, ODSP managers were Infonned the
MInIstry was endeavounng to have Legal AId Ontano fund legal assIstance for
chents seekIng chIld support, and the mangers were dIrected "In the Intenm" to
Implement a sIx-month bnng forward system" for chents who reqUIred assIstance to
obtaIn support Ms Wheeler testIfied that Legal AId Ontano dechned to assume tlus
role
Ms Wheeler testIfied about the ratIOnale for not IncludIng PSWs In the ODSP
staffing model Dunng examInatIOn-In-cluef, she said her InItIal InstructIOns were to
develop a stnlcture whIch would render the reorganIZatIOn of the welfare system
"cost -neutral" In the sense the workforce would be reduced by a percentage equal to
the percentage of the welfare caseload to be transferred to mUnIcIpal dehvery agents
when they assumed responsIbIhty for sIngle parents As sIngle parents were
estImated to be 40% of the caseload, the InItIal target for staff reductIOn was also
40% Nonetheless, Ms Wheeler recommended a staff reductIOn of only 34% to
ensure the needs of dIsabled chents were met ThIS recommendatIOn was accepted.
All posItIOns were revIewed In determInIng the new staffing stnlcture for ODSP
13
Ms Wheeler described In examInatIOn-In-chIefhow her team revIewed the
posItIOn ofPSW They estImated sIngle parents made up only SIX per cent of the
populatIOn of dIsabled chents who would remaIn the responsibIhty of the MInIstry
As the current caseload of dIsabled chents across the prOVInce was approxImately
200,000, the cohort of sIngle parents wIth dIsabIhtIes was estImated to be 12,000
Some of these 12,000 had support In pay, others had assIgned theIr support
entItlement to the MInIStry, and stIll others were not reqUIred to pursue support The
remaInder of the 12,000 were described by Ms Wheeler as the "backlog" of dIsabled
chents In need of assIstance to secure support arrangements As to new dIsabled
chents, who would be added to the welfare rolls after the ImplementatIOn of ODSP,
It was assumed 80% of them would InItIally receIve OntarIO Works (OW) benefits
from a mUnIcIpal dehvery agent before transfernng to ODSP (ThIS assumptIOn was
based upon expenence under the former welfare system, where 80% of MInIstry
chents under the Famzly Benefits Act (FBA) came from General Welfare (GW)
admInIstered by mUnIcIpahtIes ) As mUnIcIpal dehvery agents were reqUIred to
employ FSWs who would assIst chents In obtaInIng cluld support wlule on OW, Ms
Wheeler's team assumed most dIsabled chents comIng from OW would have
support arrangements In place when they entered ODSP Based upon the "temporary
nature" of work secunng support for the backlog of sIngle parents, and based upon
the "small amount" of work foreseen In secunng support for new chents entenng
ODSP, Ms Wheeler recommended the MInIStry not employ PSWs to assIst dIsabled
chents Her recommendatIOn was accepted and reflected In the ODSP staffing model
approved by June of 1998
Also dunng examInatIOn-In-chIef, Ms Wheeler testIfied the cost of emploYIng
PSWs had exceeded the amount of money collected by the MInIStry as a result of
support orders beIng assIgned to It, IncludIng money collected under assIgnments not
resultIng from the work ofPSWs
14
In cross-eXamInatIOn, Ms Wheeler admItted the populatIOn of dIsabled chents
wIth support Issues Included not only sIngle parents but also parents In blended
famIhes and cluldless chents wIth an entItlement to spousal support However, she
went on to say there was no statIstIcal basIs for determInIng the number of dIsabled
chents In the latter two categones Ms Wheeler also conceded two of the predIctIOns
used In develoPIng the staffing model turned out to be wrong The reductIOn In the
welfare case load, resultIng from the transfer of sIngle parents to mUnIcIpal dehvery
agents, turned out not to be 40% as predIcted but closer to 30% The actual figure
was known before PSWs receIved theIr surplus notIces In June of 1999 but dId not
prompt any change In the staffing model The predIctIOn that 80% of ODSP chents
would come from OW also proved to be erroneous Only 60% actually have come
from OW, but tlus trend dId not emerge untIl late 1999 after PSWs had been
surplussed.
The optIOns for prOVISIOn of serVIces relatIng to famIly support In the ODSP
were revIewed In the bnefing note mentIOned above The relevant portIOn of the
"background" sectIOn of the note states
. HIstoncally, the maJonty of the work for the provIncial PSWs was
generated by the sole support parent caseload. In December 1997, there
were approxImately 120 PSWs provIdIng servIce to 83,000 sole support
parent cases As of the end of September, all the sole support cases on
FBA wIll have been transferred to mUnIcIpahtIes
. WIthIn the ODSP caseload, there are 13,457 sIngle parents wIth
dependants It IS estImated that approxImately 4,500 of the eXIstIng cases
may reqUIre famIly support serVIces (thIS number based on the 13 5% wIth
support In pay and the addItIonal 20% wIth assIgnments) AnalysIs to date
predIcts that under ODSP, there wIll be hmIted support actIvIty once the
SSP caseload IS transferred to mUnIcIpahtIes
. For the 20% of apphcants who apply dIrectly for ODSP, It IS estImated that
less than 500 wIll have support Issues each year The Job descnptIOn of the
Income Support SpecIahst (ISS) has been revIewed to ensure that the
MInIstry can provIde some serVIces related to support The ISS wIll
contInue to complete declaratIOns of support
15
. There IS also a potentIal workload In the backlog of ODSP cases who are
sIngles wIth dependents and wIthout support or assIgnments In place It IS
estImated that approxImately 62% of sIngles wIth dependents do not have
any support or assIgnments Based on the eXIstIng number of sIngles wIth
dependents on ODSP, (13,457 cases), there IS a potentIal that 8,843 cases
could be pursued to estabhsh support or assIgnments
. Based on the projected caseload, It IS estImated that If the famIly support
functIOn were to remaIn In the ODSP, approxImately 24 posItIOns would
be needed to servIce the ODSP sIngles wIth dependants
. 80% of all ODSP apphcatIOns come through OW Apphcants In ImmedIate
financial need apply for OW and are referred to the DAU by OW Once a
person IS deemed to be a person wIth a dIsabIhty, ODSP staff reconfirm
the financial ehgibIhty of the apphcant and grant ODSP Income support It
IS antIcIpated that dunng the tIme an apphcant IS pendIng adJudIcatIOn,
much of the famIly support InterventIOn wIll be InItIated and completed by
the OW-FSWs
. Program reVIews wIll ensure that mUnIcIpahtIes are meetIng tlus
reqUIrement
. Staff have revIewed the aVailable optIOns to determIne a reasonable
approach for the dehvery of famIly support serVIces The cost effectIveness
of the functIOn IS based on statIstIcal InfOrmatIOn that combInes GW!PBA
and OW /ODSP data. ThIS makes It dIfficult to concretely define the
workload and potentIal cost ImphcatIOns of the FSW actIvItIes
The bnefing note goes on to reVIew three optIOns (1) addIng a FSW component
to ODSP, (2) findIng an outsIde serVIce provIder; and (3) leavIng chents to pursue
support on theIr own USIng eXIstIng servIces In the communIty The "labour relatIOns
Issues" entailed In the first optIOn are summarIzed.
. Legal ramIficatIOns from provIncial PSWs who took employment
opportunItIes wIth mUnIcIpahtIes because they were advIsed the famIly
support functIOn was not to be Included In the ODSP staffing model
. HRB would have to rescInd surplus notIces to all provIncial PSWs
. HIgh potentIal for pohcy and IndIVIdual gnevances, cost of gnevances IS
unknown
The note ends wIth the folloWIng companson of the labour relatIOns Issues Involved
In the three optIOns
16
. The hIghest potentIal for costly labour relatIOns Issues IS to Include the
famIly support functIOn wItlun the ODSP ThIS optIOn would Impact on the
entIre surplus SIng exerCIse and could negatIvely Impact eXIstIng
Memorandums of UnderstandIngs wIth mUnIcIpahtIes
. The lowest potentIal for labour relatIOns Issues IS to Integrate eXIstIng
famIly support servIces
The background sectIOn of a draft verSIOn of thIS bnefing note contaIned the
folloWIng
. There IS also a potentIal workload In the backlog of ODSP cases who are
sole support parents wIth dependents and wIthout support or assIgnments
In place It IS estImated that approxImately 62% of SSPs do not have any
support or assIgnments Based on the eXIstIng number of sIngles wIth
dependents on ODSP, (13,457 cases), there IS a potentIal that 8,843 cases
could be pursued to estabhsh support or assIgnments Based on the eXIstIng
sole support caseload on ODSP, (13,457 cases), there IS a potentIal that
8,843 cases could be pursued to estabhsh support or assIgnments
. The average support order IS $2622 per year Based on the potentIal
workload, the MInIStry could achIeve a yearly savIngs of $17 5 mIlhon less
the cost of recovenng the funds If all these cases had a posItIve outcome
However based on the hIstonc figures of 13 5% support In pay and 20%
wIth assIgnments (33 5%), the more reahstIc saVIngs would be $5 8 mIlhon
mInUS the cost of recovery
. MCSS lacks the statIstIcal InfOnnatIOn to make concrete prOjectIOns on the
workload and the cost effectIveness of the FSW program It lS estlmated
that prOV1SlOn of FSW serVlces to ODSP cllents wlll cost approxlmately
$2 5 mllllOn However, the actual cost wIll depend on the total number of
FSW s lured, the assocIated ODOE costs and whether the serVIce IS
centrahzed or dehvered regIOnally The estlmated savzngs wlll be
approxlmately $1 13 mllllOn (tlus does not Include the potentIal saVIngs
from the backlog or payments to FRO) (emphasIs added)
The first bullet appears In the final note wIth only mInor changes of wordIng, but the
other two have no counterpart In the final note
An e-mail from JennIfer Creagh to Charlotte Wheeler, dated July 29, 1999,
IndIcates as of May 1999 18,459 ODSP chents were sIngle-parents, 62% of whom
(1 e 11,500) had no support In payor assIgnment, and states the support orders or
agreements relatIng to the rest were for an average of $218 51 per month Based on
17
the assumptIOn that one-thIrd of the 11,500 sIngle parents wIthout support would
succeed In obtaInIng the average level of support If offered assIstance, Ms Creagh
calculated assIstIng them to do so would reduce welfare benefits by $10 mIlhon
annually She offered no ratIOnale for aSsumIng a success rate of one In three and
provIded no estImate of the cost of provIdIng assIstance Ms Wheeler testIfied many
of the 18,459 sIngle parents mentIOned by Ms Creagh were Improperly
charactenzed as ODSP cases when they actually were sIngle parents wIthout a
dIsabIhty who had not yet been transferred to mUnIcIpal dehvery agents In thIS
regard Ms Wheeler referred to an e-mail to her from AnnIe Lan, dated Apn113,
1999, statIng the number of sIngle chents wIth chIldren on ODSP as 11,344
V
The role of arbItrators In reVIeWIng management decISIOns was dIscussed In the
Intenm award where I quoted from OPSEU (Boulet) and Mlnzstry ofCommunzty and
Soczal Servlces, GSB FIle No 1189/99, decIsIOn dated August 8, 2000
Employer counsel rehes upon the folloWIng passage from Unzted Parcel
Servlce and Teamsters UnlOn (1981),29 L.A.C (2d) 202 (Burkett)
In our VIew the employer's declslOn makzng should be assessed agaznst
the reqUlrement to act for buszness reasons and the reqUlrement not to
szngle out any employee or group of employees for speczal treatment
whlch cannot be Just~fied zn terms of real bene.fit to the employer When
the partIes agree that such matters as classIficatIOn, quahficatIOn,
demotIOn, transfers and the schedulIng of vacatIOns are to be In the
dIscretIOn of management, they do so In the knowledge that
management's decIsIOns In these areas wIll be made In management's
self-Interest, may adversely affect IndIVIdual employees, and/or may
not Impact on all employees equally However, It IS not contemplated as
part of the bargaIn that the employer wIll exerCIse Ius authonty In these
areas for reasons unrelated to the betterment of hIS busIness or to sIngle
out employees for the type of special treatment descnbed. If the
employer acts In tlus manner, the results of Ius actIOns, as they affect
the bargaInIng UnIt generally or IndIVIduals wIthIn the bargaInIng UnIt,
18
may be found to be beyond the scope of hIS authonty under the
collectIve agreement (page 213, emphasIs added)
In my VIew, the approach outlIned by ArbItrator Burkett In Unzted
Parcel Servlces IS not dIfferent In substance from the one followed by thIS
Board In two decIsIOns cIted by counsel for the UnIon (1) OPSEU and
Mlnzstry of Natural Resources (Bousquet), FIle No 51/90, dated March 1,
1991 (Gorsky), and (2) OPSEU and Mlnzstry o.fGovernment Servlces
(McIntosh), FIle No 3027/92, dated December 15,1993 (DIssanayake) In
McIntosh, Mr DIssanayake cIted wIth approval two passages from the
Board's very lengthy and unanImous decIsIOn In Bousquet The first passage
reads as follows
Thus the sIgnIficant fact reqUIred to place a hmItatIOn on the unfettered
exerCIse of a management nght IS the eXIstence of a prOVISIOn In the
collectIve agreement whIch would eIther be negated or unduly hmIted
by the partIcular apphcatIOn of such a nght
As noted above, If It could be demonstrated that the Employer
had dIscnmInated agaInst the Gnevor In denYIng hIm traInIng and
development opportunItIes wIth a VIew to undennInIng Ius
advancement opportunItIes under artIcle 4, then ItS actIOns could not be
said to have been carrIed out In good faith, for genuzne government
purposes There IS nothIng In the collectIve agreement that reqUIres the
employer to consIder the advancement opportunItIes of employees
However, It cannot use ItS management nghts under s 18(1) of the Act
In a way whIch would amount to a deliberate attempt to Interfere wIth
an employee's nght to compete for a promotIOn The employer cannot
dehberately tIlt the field wIth a VIew to prefernng one employee over
another However, where In good faith and for genUIne government
purposes an employee IS denIed a traInIng or development opportunIty,
where the denIal IS not founded upon a deliberate attempt to undermIne
the employee's opportunItIes for promotIOn, the decIsIOn wIll not be
Interfered wIth (pages 35 and 36, emphasIs added)
The second passage from Bousquet states
All of the cases emphasIze that In cases InvolvIng the exerCIse of
managenal dIscretIOn, the Board wIll hesItate to substItute ItS VIew for
that of the employer so long as certaIn mInllnUm tests are met These
Include the reqUIrement that the declslOn be a genuzne one related to
the management of the undertakzng and not a dIsgUIsed means of
aChIeVIng ImpermIssible ends based on dISCnmInatIOn or other grounds
19
unrelated to the makIng of genUIne management decIsIOns. The facts
consldered zn makzng the declslOn must be relevant to legltlmate
government purposes Also, In makIng ItS deCISIOn management,
provIded It has acted In good faith, as above described, need not be
correct (pages 63 and 64, emphasIs added)
How does the ruhng In Bousquet apply to the facts at hand? As noted
by counsel for the UnIon, If the employer has vIOlated the collectIve agreement
by failIng to post Jobs, the gnevors' nghts under artIcle 6 are affected In the
sense that they would not have lost theIr employment If such Jobs had been
posted and awarded to them USIng the language of Bousquet, I conclude
management's determInatIOn of ODSP workloads would be open to challenge
If It was not "genuIne" In the sense that It was not "related to the management
of the undertakIng" The standard to be apphed IS not whether the decIsIOn
was "correct", but rather whether It was made on grounds "relevant to
legItImate government purposes" In other words, what matters IS the nature of
the reasons underlYIng the decIsIOn and not whether those reasons are of
sufficIent weIght to make the decIsIOn appear sound In the eyes of an
adjudIcator The sufficIency of the reasons IS for the employer to determIne
(pages 10 to 12)
In final argument, UnIon counsel rehed pnmanly upon a tlurd passage from
Bousquet statIng a management decIsIOn must bear a ratIOnal relatIOnslup to the facts
upon whIch It IS based.
In commentIng on the use of the tenn "unreasonable" In some ear her
decIsIOns of the Board deahng wIth the good faith exerCIse of the statutory
nght to release a probatIOnary employee, the Board stated, In Shaw, at pp 5-6
WIule tlus term [unreasonable] IS utIhzed In the earher decIsIOns we do
not take It to mean that we can reVIew the ments of the employee's Job
perfonnance and reInstate hun If we find that [the employer's]
assessment was "unreasonable" that the employee had not met the job
reqUlrements Reasonableness zn th,s context lS a 5,peCles of go 0 dfaz th
Whereas the phrase "bad fazth " could encompass a release lmproperly
motlvated or malzclOusly zntended, "unreasonableness" ,'peaks more to
an objectlve assessment that the release dld not flow loglcally or
ratlOnallyfrom thefacts ff,for example, there was slmply no eVldence
that a probatlOnary employee had not fulfilled or could not fulfil the job
reqUlrements, then no matter how well meamng were the actlOns of hls
20
superzors, the release would have been an unreasonable exerClse of
authorzty
It lS easy to brand as "lrratzonal" any thought process or
declszon wlth whlch one does not agree The Deputy Mlnzster must be
free to make declszons, wlthout bezngfound to have acted lrratzonally
merely because a board of arbltratzon mlght have come to a dff(erent
declszon
As also noted by the Board In Shaw, the ratIOnal relatIOnslup factor IS
nearly synonymous WIth reasonableness And reasonableness, In the context
of the case, IS a specIes of good faith In the case before us, In outhnIng the
good faith obhgatIOns of the Employer, we Include the further elements of
reasonableness and a ratzonal relatzonshlp between the facts leadzng to the
makzng of the declszon and the declszon ltse((
Where the Employer cannot be shown to have denIed the Gnevor's
requests for reasons whIch are "Improperly motIvated or mahcIOusly
Intended," such as Ius beIng a francophone, for reasons prohibIted by s 4 of
the Human RIghts Code, or because of a desIre to Impose dIsgUIsed dIscIphne,
the Employer wIll have satIsfied the first aspect of the good faith test
IdentIfied In Shaw
Where there IS some eVldence permlttzng an obJectlve assessment that
the declszon flowed loglcally from the facts, the Employer wIll have satIsfied
the second aspect of the good faith test (reasonableness) If the concluszon
arrzved at by an employer lS one that lS reasonably posslble based on the last
mentIOned eVIdence, then the necessary ratIOnal relatIOnshIp between the facts
and the decIsIOn wIll eXIst (pages 59 to 63, emphasIs added)
UnIon counsel contends the MInIstry's decIsIOn not to utIhze PSWs under
ODSP IS not objectIvely supported by the facts Ms Wheeler's claim that PSWs had
not "paid theIr freIght" was said to be wrong because It was based exclusIvely on the
amount of money collected by the MinIstry from "deadbeats" and Ignored money
saved by the MInIStry when support paid voluntarIly led to a reductIOn In welfare
benefits Counsel for the UnIon rehes heavIly upon the draft bnefing note refernng to
a saVIng of $1 13 mIlhon, counsel also mentIOned In paSSIng the $10 mIlhon saVIng
cIted In Ms Creagh's e-mail He suggested mUnIcIpal dehvery agents wIll fall to
secure support arrangements for dIsabled chents movIng from OW to ODSP, Just as
mUnIcIpahtIes In the past dId not secure support for welfare chents mOVIng from
21
GW to FBA. In addItIon, counsel contended the MInIstry's final decIsIOn In the
summer of 1999 was flawed because It was based In part upon the labour-relatIOns
costs of admIttIng the decIsIOn InItIally made In early 1998 had been wrong
Employer counsel argued the final bnefing note dId not attempt to determIne
whether PSWs would pay theIr freIght under ODSP because It was not feasible to
predIct what would happen under the new welfare system based upon what had
happened under the old one In thIS regard, I was remInded that the bnefing note
acknowledges It was "dIfficult to concretely define the workload and potentIal cost
llnphcatIOns of the FSW actIvItIes" based on "statIstIcal InfOnnatIOn that combInes
GW!PBA and OW /ODSP data" Counsel suggested the employer acted properly In
desIgnIng a staffing model that would reduce staff In approXImate proportIOn to the
reductIOn In caseload achIeved by transferrIng sIngle parents to mUnIcIpal dehvery
agents In addItIon, employer counsel submItted takIng labour relatIOns factors Into
account when makIng decIsIOns was good management
The pnmary thrust of the unIon's argument IS that the decIsIOn not to employ
PSWs was unreasonable because the cost of emploYIng them would be less than the
amount they would save for the MinIstry by way of reduced welfare benefits paid to
dIsabled chents ThIS argument dIscounts entIrely the potentIal for FSWs employed
by mUnIcIpal dehvery agents to achIeve much of the saVIngs whIch mIght otherwIse
be attaIned by PSWs In the employ of the MInIstry Both when the staffing model
was desIgned In 1998 and when PSWs receIved surplus notIces In 1999, the
MInIstry's predIctIOn, based on past expenence, was that 80% of new dIsabled
chents would transfer to ODSP from OW Ms Wheeler testIfied she expected most
transferrIng chents would have theIr support Issues addressed by mUnIcIpal FSWs
willie on OW ThIS expectatIOn IS set out In the bnefing note whIch also states
"Program reVIew wIll ensure the mUnIcIpahtIes are meetIng thIS reqUIrement"
UnIon counsel's contentIOn that mUnIcIpal dehvery agents wIll not provIde the
reqUIred serVIce to new dIsabled chents IS based upon the premIse that mUnIcIpahtIes
22
faIled to secure support for chents transferrIng from GW to FBA In the past The
flaw In tlus contentIOn IS that mUnIcIpal dehvery agents are now reqUIred to employ
FSWs to serve sIngle parents on OW, whereas sIngle parents were not the
responsibIhty of mUnIcIpahtIes under GW In the past and there IS no eVIdence to
suggest they prevIOusly employed staff analogous to FSWs
DIsabled chents In the backlog transferrIng from FBA to ODSP, who lacked
support arrangements, would not be assIsted by mUnIcIpal FSWs However, the task
of secunng InItIal support arrangements for these backlog chents was temporary In
nature and could not occupy PSWs on a pennanent basIs
There was some ongOIng support work for dIsabled chents that could not be
accomphshed by mUnIcIpal FSWs servIng only OW chents ThIS work Included (1)
vanatIOns In support for dIsabled chents In the backlog transferrIng from FBA to
ODSP who were never part of OW, (2) for the projected 80% of new chents
transferrIng to ODSP from OW, vanatIOns anSIng after they transferred, and (3) for
the projected 20% of new chents entenng ODSP dIrectly, both InItIal support
arrangements and vanatIOns As to new chents entenng ODSP dIrectly, the bnefing
note IndIcates staff would be dIrected to refer them to "exIstIng commUnIty
resources" for assIstance WIth support Issues The note makes no mentIOn of backlog
chents or new chents comIng from OW, but they too could be referred to eXIstIng
commUnIty resources for help wIth vanatIOns It was reasonable to assume these
forms of assIstance would achIeve some part of the reductIOn In welfare benefits that
could be obtaIned by PSWs
Counsel for the UnIon charactenzed the saVIng of $1 13 mIlhon mentIOned In
the draft bnefing note as a net SaVIng-I e the projected reductIOn In welfare
benefits resultIng from the prOVISIOn ofPSW servIces mInus the estImated cost of
provIdIng those servIces Ms Wheeler was not asked whether thIS InterpretatIOn IS
correct It IS not the most plausible readIng of the draft note whIch states "The
estImated saVIngs wIll be approxImately $1 13 mIlhon (tlus does not Include the
23
potentIal saVIngs from the backlog or payments to FRO) "ThIS sentence mIght be
read as saYIng $1 13 mIlhon IS the projected saVIng In welfare benefits resultIng
from the prOVISIOn ofPSW servIces to new ODSP chents-I e the gross saVIng
before costs rather than the net saVIng after costs When the reference to $1 13
mIlhon IS read In the context of the three bullets quoted, tlus InterpretatIOn IS more
plausible than the one suggested by UnIon counsel The exphcIt exclusIOn of backlog
chents In the thIrd bullet IndIcates the figure of $1 13 mIlhon relates to new chents
Backlog chents are addressed In the first bullet, they appear also to be the subject of
the second, where the words "these cases" seems to be a reference to the 8,843
backlog cases mentIOned In the first The second bullet says "savIngs would be $5 8
mIlhon mznus the cost of recovery" (emphasIs added), IndIcatIng the word "savIngs"
IS used In the context of the backlog to mean the reductIOn In welfare benefits before
costs are deducted If the "savIngs" of $1 13 mIlhon In the thIrd bullet likewIse
represented the reductIOn In welfare benefits for new chents, thIS decrease would not
warrant provIdIng PSW servIces at the cost of $2 5 mIlhon estImated In the same
bullet
The accuracy ofMs Creagh's estImate that PSWs could produce a reductIOn
of $10 mIlhon In welfare benefits for eXIstIng ODSP chents IS put In doubt by Ms
Wheeler's testImony that tlus estImate was based on a grossly overstated number of
dIsabled sIngle parents Ms Creagh dealt wIth the benefits of PSW serVIces, but she
made no attempt to quantIfy the cost of provIdIng them Most Important of all, her e-
mall deals exclusIvely WIth obtaInIng InItIal support arrangements for eXIstIng
chents, work whIch was temporary In nature
UnIon counsel also suggested the Issues relatIng to labour relatIOns mentIOned
In the bnefing note should not have been consIdered by the MInIStry In the summer
of 1999 when the staffing model for ODSP was reassessed. The bnefing note stated
the reVISIOn of thIS model to Include PSW serVIces had a hIgher potentIal for labour
dIsputes than other optIOns and went on to say "ThIS optIOn would Impact on the
24
entIre surplus SIng exerCIse and could negatIvely Impact eXIstIng Memorandums of
UnderstandIngs wIth mUnIcIpahtIes " ThIS passage IndIcates management was
concerned about the labour-relatIOns costs of reVISIng the InItIal staffing model That
model had provIded the basIs for some very sIgnIficant developments decIsIOns by
employees In 1998 and 1999 about whether to take Jobs wIth mUnIcIpal dehvery
agents, and the Issuance of layoff notIces In the summer of 1999 The note raised
concerns about abandonIng a model upon whIch so much had been based If these
concerns had been the determInIng factor In the MInIStry'S decIsIOn not to reVIse the
staffing model, there would be an argument that the decIsIOn was an Improper
exerCIse of management nghts
The eVIdence falls short of prOVIng, on the balance of probabIhtIes, that
labour-relatIOns Issues were the detennInIng factor The Issues ansIng from
developments In late 1998 and 1999, developments themselves based upon the InItIal
staffing model, could not have had any Impact on the desIgn of that model In early
1998 The decIsIOn made at that tnne, not to Include PSW servIces, was based
entIrely upon other factors WIth one exceptIOn, none of those factors had changed
sIgnIficantly by the summer of 1999 The exceptIOn IS the reductIOn In the welfare
caseload, resultIng from the transfer of sIngle parents to mUnIcIpal dehvery agents,
whIch turned out not to be 40% as predIcted but closer to 30% There IS no eVIdence
of a sIgnIficant change In any of the factors relatIng specIfically to PSW serVIces
whIch had formed the basIs for the decIsIOn not to Include such serVIces In the InItIal
staffing model
The analysIs set out above leads me to conclude there was a ratIOnal
relatIOnshIp between the decIsIOn not to Include PSWs In ODSP and the facts upon
whIch the decIsIOn was based. The decIsIOn was not an Improper exercIse of
management nghts
25
VI
In summary, I have concluded.
1 The use of lawyers to defend arrears In famIly court contravenes the Imphed
contractual prohibItIon agaInst the assIgnment of bargaInIng-unIt work to
employees outsIde the UnIt,
2 ArtIcle 20 does not entItle any of the gnevors to follow theIr work to the legal
servIces branch, and
3 The MInIStry'S decIsIOn to dIscontInue PSW servIces was not an Improper
exercIse of management nghts
I remaIn seIzed to deal wIth any matters arISIng In the llnplementatIOn of tlus award.
Dated at Toronto thIS 2nd day of June 2003
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RIchard Brown
VIce-Chair