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HomeMy WebLinkAbout1999-2064.Cowling.00-10-05Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARW . . GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 GSB #2064/99 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BElWEEN AMAPCEO (Cowhng) Grievor - and - The Crown 111 RIght of Ontano (Mimsm of TransportatIOn) Emplover BEFORE Nimal DIssanavake Vice Charr FOR THE Steven Barrett GRlEVOR Counsel Sack Goldblatt Mitchell Bamsters & SohcItors FOR THE John SmIth EMPLOYER Counsel Legal ServIces Branch Management Board Secretariat HEARING September 29 2000 DECISION Tlns IS a gnevance dated November 3, 1999 filed by Mr Wilham Cowhng, wherem he alleges that he has been wrongfully demed nghts lUlder artIcle 188 l(h) of the collectIve agreement. That prOVISIOn reads ExceptIOns from the ReqUirements to the Postmg and Filling of PositIOns 18 8 1 VacancIes may be filled wIthout competItIOn upon cleanng surplus lUlder the followmg CIrcmnstances h) In addItIOn, any employee who IS dIrectly assIgned under ArtIcle 27 and who then apphes for a vacant posItIOn or whose dutIes are changed as a result of a reorgamzatIOn or reassIgmnent of dutIes and the posItIOn IS reclassIfied to a lower claSSIficatIon IS entItled to be appomted to the first vacant posItIOn whIch. IS m lns/her mImstIy as defined m ArtIcle 27 12, and IS at a salary maXImum lngher than that currently held, but not hIgher than ongmally held he/she IS quahfied to perform has cleared the surplus reqmrements of ArtIcle 27, and the prOVISIOns of ArtIcles 18 1 to 18 5 shall not apply unless otherwIse speCIfied. The employer acknowledged that the gnevor would have been entItled for nghts lUlder artIcle 18 8 1 (h), but for one reason. That IS that the effect of the enactInent of the 3 Labour RelatIOns and Emplovment Statute Law Amendment Act, 1995 (cOlmnonly referred to as ABill 7") was to amend the Crown Employees CollectIve BargaIrnng Act, resultmg m the exclusIOn of the gnevor from the Act and the collectIve barga1ll1ng regIme estabhshed thereunder SpecIfic rehance was placed on s 1 (3)( 11) of Bill 7 wInch reads 1(3) TIns Act does not apply wIth respect to the followmg 11 Persons employed m the Office of the PremIer or m Cabmet Office The matenal facts are not m dIspute From January 1994, the gnevor held the posItIOn of Project Manager Planrnng and Development, InformatIOn Technology Systems and ServIces at the Cabmet Office In Janumy 1995 the AssocIatIOn apphed for certIficatIOn for a bargammg unIt that mcluded the gnevor's pOSItIOn. In March of 1995 the assocIatIOn was voluntanly recogrnzed by the employer as bargaIrnng agent for the Said bargammg urnt. The gnevor thus becaIne a member of that urnt. On October 2, 1995, the gnevor receIved a surplus notIce on the grounds that Ins pOSItIOn at the Cabmet Office had been abohshed due to shortage of funds On May 7, 1996, the gnevor was mfonned that he was laId off effectIve that date because the employer had been unsuccessful m findmg hIm a dIrect aSSIgnment dunng the surplus notIce penod and extended notIce penod. However, It was exphcItly noted that the gnevor contmued to 4 have recall nghts under the Intenm collectIve agreement wInch had by then been concluded, and that he would contInue to be matched to vacanCIes for a penod of 24 months from the date of layoff On August 16, 1996, the gnevor was Informed that effectIve September 16, 1996 he was recalled and assIgned to the pOSItIOn of BusIness Analyst at the MInIStIy of TransportatIOn. ThIS pOSItIOn had a lower classIficatIOn and pay rate than the pOSItIOn the gnevor had held at the CabInet Office The gnevor accepted tIns assIgmnent. Subsequently, the gnevor requested that he be assIgned WIthout competItIOn, to the vacancy of System Head, E BUSIness ApphcatIOns, pursuant to artIcle 188 1 (h) but was demed. The result was the Instant gnevance At arbItratIOn, the employer defended ItS deCISIOn to deny the gnevor nghts under artIcle 18 8 l(h) on the grounds that while ImtIally the gnevor had entItlement to those nghts despIte beIng an employee In the Cabmet Office, when Bill 7 receIved royal assent on November 10, 1995, the effect was to remove hIm llnmedIately from the bargamIng umt, under the exclusIOn m S 1(3)11 Thus, accordmg to the employer, effectIve November 10, 1995, the gnevor was no longer entItled to nghts under artIcle 18 8 l(h) The employer agreed that, but for that exclusIOn the gnevor would have been entItled under artIcle 18 8 l(h) to be assIgned to the vacancy m questIOn, provIded only that he 5 was quahfied to perfonn the dunes of the posItIOn. If the Board finds that the gnevor was not excluded, the employer agreed to IntervIew the gnevor In order to assess whether he was quahfied to perform the dutIes of the vacant posItIOn. The AssocIanon took the posItIOn that the gnevor contInued to be enntled to artIcle 18 8 1 (h) nghts despIte Bill 7 Three alternate arguments were made In support of thIS posItIOn. The umon's pnmary posItIOn was that artIcle 188 l(h) nghts vested In the gnevor when he was surplus sed on October 2, 1995, whIch pre-dated the enactment of Bill 7 CItIng the InterpretatIOn Act, as well as COlmnon law pnncIples of statutory InterpretatIOn, counsel for the assocIatIOn submItted that Bill 7 should not be Interpreted so as to depnve the gnevor of nghts wmch had already vested In mm pnor to Bill 7 comIng Into force If ItS posItIOn IS upheld, the assocIatIOn was content to allow the employer to assess the gnevor's quahficatIOns to perform the dunes of the vacant posItIOn through an IntervIew process However, It expressly retaIned the nght to challenge that assessment and the employer's apphcatIOn of artIcle 18 8 1 (h) to the gnevor's CIrcumstances, should the gnevor be wrongfully demed an aSSIgnment. S 14( 1) of the InterpretatIOn Act reads 6 14(1) Where an Act IS repealed or where a regulatIOn IS revoked, the repeal or revocatIOn does not, except In thIS Act otherwIse provIded, (c) Affect any nght, pnvilege, oblIgatIOn or lIabilIty acqUIred, accrued, accruIng or Incurred under the Act, regulatIOn or thIng so repealed or revoked. The COImnon law pnncIple In tills regard has been sUImnanzed as follows "It IS presumed that legIslatIOn IS not Intended to Interfere wIth vested and accrued nghts" (Dnedger on the ConstructIOn of Statutes, 3rd Ed. by Ruth SullIvan, (Butterworths) at p 508) In Upper Canada College v. SmIth, (1920) 61 S CR. 413 at p 417, Duff J explaIned the JustIficatIOn for the pnncIple, statIng that It was "a flagrant VIOlatIOn of natural JustIce to depnve people of nghts acqUIred by transactIOns perfectly valId and regular accordIng to the law of the tIme" In Dnedger at p 530, It IS stated. To worsen the pOSItIon of IndIvIduals by changIng the legal rules on whIch they relIed In arrangIng theIr affaIrs IS arbItrary and unfaIr Where the applIcatIOn of new legIslatIOn creates speCIal prejUdICe for some, or WIndfalls for others, the burdens and benefits of the new law are not ratIOnally or faIrly dIstributed. These effects may be hard on the IndIVIduals Involved and they undermIne the general secunty and stabilIty of the law For these reasons Interference WIth vested nghts IS aVOIded In the absence of a clear legIslatIve dIrectIve 7 The employer's response to thIS argument was that the relevant date was not the date of surplus or layoff but August 16, 1996, when the gnevor was recalled and dIrectly assIgned under artIcle 27 to the lower claSSIfied posItIOn, whIch date post-dated the comIng Into effect of Bill 7 If tills IS correct no Interference wIth vested nghts would be Involved. HaVIng carefully revIewed the respectIve submIssIOns of the partIes, the Board concludes that the ASSOCIatIOn's pOSItIOn must prevail. While artIcle 18 8 l(h) refers to "dIrectly aSSIgned under artIcle 27", the nghts under artIcle 188 l(h) are ultImately predIcated upon an employee beIng surplus sed and beIng on recall. DIrect aSSIgnment IS dealt WIth under artIcle 27 8 whIch reads 27 8 DIrect ASSIgnment Into pennanent VacanCIes 27 8 1 The follOWIng processes and rules shall apply to (a) all employees at the tIme they are declared surplus, (b) all employees who remam elIgible or available for aSSIgnment Into subsequent vacanCIes for the remaInder of theIr surplus notIce after processes and optIOns set out In ArtIcles 27 6 2 and 27 6 3 have been followed, and (c) all employees on recall. 8 Thus, a drrect assIgnment under artIcle 27 follows as consequence of a surplussmg and recall nghts In other words, an employee at the tune of surplussmg may reasonably expect that he will have a nght to a dIrect assIgnment under artIcle 27 and that as a result, he would have nghts under artIcle 18 8 l(h) followmg a dIrect assIgmnent, provIded he meets the condItIOns therem. Smce Bill 7 dId not eXist at the tIme the gnevor was surplus sed, he was reasonably entItled at that tIme to have such an expectatIOn. Those were the rules that would govern ills future employment m the OPS It IS SImply unfaIr to change those rules as a result of subsequent legIslatIOn. The Board finds further comfort m reachmg thIS conclusIOn from a purpOSIve reVIew of the exclusIOn m Bill 7 The ObVIOUS purpose behmd the exclusIOn of employees m the Cabmet Office and PremIer's Office IS the concern about potentIal conflIct of mterest and confidentIahty However, It IS clear that no such concern could have ansen as far as the gnevor was concerned once he was laid off from hIS Cabmet Office pOSItIOn on May 7, 1995 ThIS IS because as of that date, he had no mvolvement WIth, and performed no dutIes for, the Cabmet Office even though techmcally ills "home pOSITIOn" may have contmued to be m the Cabmet Office It IS even more arbItral)' and unfaIr to depnve the gnevor of hIS vested nghts under artIcle 18 8 l(h), when at the tune Bill 7 Caine mto force, he had no mvolvement WIth the Cabmet Office for any practIcal purpose 9 F or those reasons, the Board finds that Bill 7 dId not have the effect of depnvIng the gnevor ofms nghts under artIcle 18 8 l(h) The employer, therefore, shall cany out the assessment of the gnevor's quahficatIOns as agreed to In VIew of that result, It IS not necessary for the Board to deal WIth the AssocIatIOn's alternate pOSItIOns RemedIal Issues As noted above, the ASSOCIaTIOn agreed that the employer may assess the gnevor's quahficatIOns through an IntervIew, If the Board finds In ItS favour However, counsel sought orders from the Board llnpOSIng the follOWIng condItIOns related to the conduct of that IntervIew ( 1) That the gnevor be gIVen nOTIce of the IntervIew date 2 to 3 weeks In advance, so that he would be able to prepare (2) That the gnevor be proVIded WIth the same InformaTIon related to the IntervIew as was provIded to other employees who were IntervIewed for the vacancy In questIOn. (3) That the employer pennlt a representaTIve of the assocIatIOn to be present at the gnevor's IntervIew as an observer The employer took the pOSItIOn that In the absence of any allegatIOn or eVIdence of bad faIth, the Board should not Issue any orders relatIng to the IntervIew 10 In the Board's VIew, thIS case IS not dIssImIlar to a Job competItIOn case, where the employer IS found to have wrongfully demed an IntervIew to an apphcant. In such a case, the Board would Impose condItIons on the conduct of the IntervIew process ordered, only where speCIal cIrcmllstances warrant such orders to ensure that the gnevor IS properly redressed. In such case, as much as In the present case, the remedIal entItlement of the gnevor IS no more and no less than to be placed as much as possible In the same posItIOn as he would have been In, but for the employer's breach. The present gnevor's entItlement also IS to be placed In the same posItIOn he would have been In, had he been granted an IntervIew by the employer In the first Instance ApplYIng that standard, consIdenng the absence of any speCIal cIrcumstances, the request to have an ASSOCIatIOn representatIve at the IntervIew IS Inappropnate and IS demed. WIth regard to the AssocIanon's remaImng requests, the Board hereby orders that the employer treat the grIevor wIth regard to prOVISIOn of notIce and InfOrmatIOn, In the same manner It treated other employees, If any, who were IntervIewed for the posItIOn In questIOn. Upon consent, the Board remaInS seIzed In the event of any dIsputes ansIng wIth regard to the conduct of the gnevor's IntervIew and the apphcatIOn of arncle 18 8 1 (h) nghts by employer 11 Dated at HamIlton, thIS 5th day of October, 2000 ~p ..:-.,_ 'lor - ,~', '=" ~-=! -- --;~ .. ~- Nllnal V DIssanayake, VIce-ChaIr