HomeMy WebLinkAbout1999-0751.MacDougall.02-05-09 Decision
~M~ om~o EA1PLOYES DE LA COURONNE
_QJ_L i~~i~~~i~T DE L 'ONTARIO
COMMISSION DE
REGLEMENT
"IIIl__1I'" BOARD DES GRIEFS
Ontario
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE. (416) 326-1388
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GSB# 0751/99
UNION# 99B742
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Unions
(MacDougall)
Grievor
-and-
The Crown In Right of Ontario
(Ministry of Community and Social Services)
Employer
BEFORE D J D Leighton Vice-Chair
FOR THE GRIEVOR. Kristin Eliot
Counsel
Eliot, Smith
Barristers and Solicitors
FOR THE EMPLOYER. Carol Ann Witt
Counsel
Legal Services Branch
Management Board Secretariat
HEARING February 13, 2002
2
Claire MacDougall was an Income support worker m the MmIstry of Commumty and
SocIal ServIces when she was declared surplus m 1999 On June 28, 1999 she gneved
that she had been demed her dIsplacement nghts under ArtIcle 20 4 1 5 of the collectIve
agreement. Ms MacDougall had been a welfare field worker m BellevIlle pnor to
becommg an mcome support worker, and the umon took the posItIOn that she should have
been bumped mto the Welfare FIeld Worker II posItIOn m Kmgston. The employer
dIsagreed that she should be bumped mto the posItIOn because she had gamed the
expenence as a welfare field worker m BellevIlle, whIch was beyond 40km of her home
posItIOn.
The umon takes the posItIOn that the 40km cntena refers only to the area of search
for a Job and not for where expenence IS gamed m a posItIOn. Smce the gnevor was
ultImately successfulm gettmg an mcome support specIalIst posItIOn m November 1999
under ArtIcle 20 12 of the collectIve agreement, she was never wIthout work. The umon
IS askmg for a declaratIOn only as the mterpretatIOn of ArtIcle 20 4 1 5 of the collectIve
agreement
Counsel agreed to the summary of the above-noted facts and documentary
eVIdence submItted by the umon. No VIva voce eVIdence was tendered. Employer
counsel made her submIssIOn by way of teleconference call.
The Union Submission
ArtIcle 20 4 provIdes employees wIth dIsplacement nghts when they have been
surplussed and sets out the steps whIch the employer must take mIdentIfymg possible
3
solutIOns Counsel submItted that up untIl ArtIcle 20 4 1 5 the employer's search for a
sUItable posItIOn for a surplus sed employee IS wIthm a 40km radms of the home posItIOn.
If no sUItable posItIOn IS IdentIfied wIthm 40km of the surplus sed employee's home
posItIOn then ArtIcle 20 4 1 6 provIdes, If the employee requests, that the employer look
for a sUItable posItIOn beyond 40km of the employee's home posItIOn. Counsel argued
that the employer's posItIOn that the gnevor needed to have expenence gamed wIthm
40km of the home posItIOn does not make sense, especIally when ArtIcle 20 4 1 6 IS
consIdered, smce that provIsIOn allows an employee to bump mto a posItIOn beyond
40km. There IS no lOgIC m reqUInng expenence wIthm 40kms, when the employee mIght
be able to bump to a posItIOn beyond 40km. Further, ArtIcle 20 4 1 7 provIdes
dIsplacement nghts for the employee to bump outsIde of hIs/her own mInIstry If a
sUItable posItIOn IS Identified. In counsel's submIssIOn, on the employer's mterpretatIOn,
a surplus sed employee would have a greater benefit bumpmg outsIde hIs/her own
mInIstry, than under ArtIcle 20 4 1 5
Counsel argued further that the prmcIples of mterpretatIOn, whIch are broad and
purpOSIve m approach, support the unIon's mterpretatIOn here She argued further that
there was no purpose m restnctmg surplus employees to posItIOns wIthm 40km of the
surplus sed employee's headquarters, only If they had gamed the expenence wIthm 40km
of theIr home posItIOn. One of the pnmary reqUIrements of the dIsplacement provIsIOn IS
that the surplussed employee can do the work. It doesn't matter then where that
employee has gamed the expenence to do the work.
4
Counsel rehed on the followmg cases m support of her submIssIOn OPSEU
(Fmk) and the Mmlstry of TransportatIOn, 2601/96 (Abramsky), OPSEU (Penney) and
the Mmlstry of Natural Resources, 697/96 (Venty), OPSEU (Hutt) and the MInIStry of
Agnculture, Food and Rural Affairs, 1594/97 (Venty)
UnIon counsel asked for a declaratIOn that ArtIcle 20 4 1 5 be mterpreted as
reqUInng the employer to look for a sUItable posItIOn wlthm 40km, but not reqUInng the
expenence for that posItIOn to be gamed wlthm the same 40km.
Submission of the Employer
Counsel for the employer submItted that ArtIcle 20 4 1 5 was not a model of
clanty She submItted that the employer's mterpretatIOn was a possible mterpretatIOn,
and that there was no bad faith behmd the mterpretatIOn. She noted that the provIsIOn m
the artIcle allows a dIsplacement outsIde the employee's class senes Counsel contended
that thIS provIsIOn had been m the collectIve agreement for eIght years and the Issue as to
ItS mterpretatIOn had never before been raIsed by the UnIon. The employer asked the
board to dIsmIss the gnevance or, m the alternative, to frame the declaratIOn narrowly so
as to relate only to ArtIcle 20 4 1 5
Decision
ArtIcle 20 4 provIdes as follows
20 4 DIsplacement
5
20 4 1 1 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
m LIeu), and who has not been assIgned m 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 m the
followmg manner as set out m ArtIcles 20 4 1.2 to 20 4 1 10
20 4 1 2 The Employer wIll Identify the employee wIth the least semonty m the
same classIficatIOn and the same mmIstry as the employee's surplus
posItIOn. If such employee has less semonty than the surplus
employee, he or she shall be dIsplaced by the surplus employee
provIded that:
(a) such employee's headquarters IS located wIthm a forty (40)
kIlometre radms of the headquarters of the surplus employee, and
(b) the surplus employee IS quahfied to perform the work of the
Identified employee
20 4 1 3 If the surplus employee IS not quahfied to perform the work of the least
semor employee IdentIfied under ArtIcle 20 4 1.2 above, the Employer
wIll contmue to Identify, m reverse order of semonty, employees m the
same classIficatIOn and m the same mmIstry untIl a less semor
employee IS found wItllln forty (40) kIlometres of the surplus
employee's headquarters whose work the surplus employee IS quahfied
to perform.
20 4 1 4 FaIhng dIsplacement under ArtIcle 20 4 1 2 or 204 1 3 above, the
Employer wIll Identify, m reverse order of semonty, members m the
classes m the same class senes m descendmg order untIl an employee
wIth less semonty IS found m the same mImstry wIthm forty (40)
kIlometres of the surplus employees headquarters The Identified
employee shall be dIsplaced by the surplus employee provIded he or
she IS quahfied to perform the work.
20 4 1 5 FaIhng dIsplacement under ArtIcles 20 4 1 2,204 1 3 or 204 1 4 above,
the Employer wIll reVIew other classes whIch 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 m the same mImstry wIthm
forty (40) kIlometres of the surplus employee's headquarters The
Employer wIll IdentIfy, m reverse order of semonty, a less semor
employee m 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
6
provIded he or she IS quahfied to perform the work.
20 4 1 6 FaIhng dIsplacement under ArtIcles 20 4 1 2, 20 4 1 3, 20 4 1 4 or
20 4 1 5 above, If the employee requests, the Employer wIll repeat the
steps specIfied m ArtIcles 20 4 1 2, 20 4 1 3, 20 4 1 4 and 20 4 1 5 wIth
respect to posItIOns beyond a forty (40) kIlometre radms of hIS or her
headquarters No relocatIOn expenses wIll be paid.
20 4 1 7 FaIhng dIsplacement under ArtIcles 20 4 1 2, 20 4 1 3, 20 4 1 4,
204 1 5 or 204 1 6 above, the Employer wIll IdentIfy, m reverse order
of senIonty, a less senIor employee who IS
( c)m another mInIstry; and
(d) whose headquarters IS wIthm a forty (40) kIlometre radms of the
dIsplacmg employee's headquarters, and
( e) whose posItIOn the dIsplacmg employee prevIOusly 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 m that mInIstry, and
(f) If the employee prevIOusly held more than one posItIOn m that
mInIstry, the posItIOn WIth a maXImum salary closest to but not greater
than the maXImum salary of the dIsplacmg employee's current
classIficatIOn.
The IdentIfied employee shall be dIsplaced provIded the dIsplacmg
employee IS quahfied to perform the work.
20 4 1 8 No later than one (1) week followmg commencement of the notIce
penod, the Employer wIll advIse the surplus employee of the posItIOn
mto whIch he or she IS ehgible to dIsplace
20 4 1 9 The surplus employee must mdIcate m wntmg to the MInIstry/Agency
DIrector of Human Resources hIS or her mtentIOn to dIsplace the
employee IdentIfied pursuant ArtIcles 20 4 1 2, 20 4 1 3, 20 4 1 4,
20 4 1 5, 20 4 1 6, or 20 4 1 7 above, as apphcable Wntten mtentIOn to
dIsplace must be receIved by the MInIstry/Agency DIrector of Human
Resources no later than one (1) week followmg the date the surplus
employee receIved advIce that he or she was ehgible to dIsplace an
employee pursuant to ArtIcle 20 4 1 8 above
204 1 10 An employee who does not mdIcate m wntmg to the MInIstry/Agency
DIrector of Human Resources hIS or her mtentIOn to dIsplace wIthm the
tIme penod stIpulated by ArtIcle 20 4 1 9 above shall be deemed to
have gIVen up hIS or her nght to dIsplace and opted for redeployment
under ArtIcle 20 5 (Redeployment)
7
The Issue before me IS whether ArtIcle 20 4 1 5 whIch reqUIres the employer to
look for posItIOns outsIde the employee's current classIficatIOn, also reqUIres that the
expenence must be gamed wIthm 40km of the surplussed employee's headquarters ThIs
Issue was addressed wIth regard to ArtIcle 20 4 1(f) of the prevIOus collective agreement
between the partIes (January 1994 - December 1998) m the Hutt decIsIOn. ThIs
provIsIOn reqUIred that If no sUItable posItIOn was found throughout the dIsplacement
process wIthm the surplussed employee's own mInIstry, then posItIOns mother mInIstnes
had to be consIdered. The employer, m the Hutt case, took the posItIOn that not only
must the posItIOn be found wIthm 40km, but the surplussed employee must have gamed
the expenence m the posItIOn wIthm the 40km. ArbItrator Venty' s reasonIng m thIS case
IS helpful. He noted.
ArtIcle 20 4 lIS, m effect, a procedural code whereby specIfied
dIsplacement nghts m sequentIal order are avaIlable to employees based on
senIonty Each step of the procedure IS self-contamed.
He stated that whIle m hIS VIew ArtIcle 20 4 1 was very carefully wntten, the words
needed to be mterpreted m theIr context and the meanIng from the context "may vary
from artIcle to artIcle and from subsectIOn to subsectIOn." ArbItrator Venty found that
expenence does not have to be obtamed wIthm the 40km radms of the surplussed
employee's headquarters WhIle the posItIOn must be Identified wIthm 40km under thIS
provIsIOn, the
expenence does not depend on the fact that It was obtamed wIthm a 40km
radms of the surplussed employee's headquarters, rather, It depends on the
expenence gamed from work performed m a posItIOn prevIOusly held by
the surplus sed employee was the same or substantially sImIlar to the work
8
currently performed by a less semor employee I thmk It gIVes a fair and
reasonable mterpretatIOn to semonty nghts
The lOgIC of Hurt apphes equally to the case before me I am thus persuaded by the
umon's posItIOn and so declare that m mterpretmg ArtIcle 20 4 1 5, the employer shall
consIder expenence obtamed as reqUIred under the ArtIcle, both wIthm and beyond the
40km range of the surplus sed employee's headquarters
Dated at Toronto, thIS 9th day of May, 2002
D lD LeIghton, Vice-Chair