HomeMy WebLinkAbout2013-3236.Vadera-Union.18-06-28 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2013-3236; 2013-1446; 2013-1574; 2013-1696
UNION# 2013-0533-0014; 2013-0999-0049; 2013-0999-0063; 2013-0999-0069;
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Vadera-Union) Union
- and -
The Crown in Right of Ontario
(Treasury Board Secretariat) Employer
BEFORE
Reva Devins
Arbitrator
FOR THE UNION
Richard Blair
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER George Parris
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING February 21, March 22 and May 10, 2018
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DECISION
[1] The Union and individual grievors filed a series of grievances regarding the
interpretation and application of the Transition Exit Initiative (TEI) in Appendix 46
of the Collective Agreement. I released an initial decision with respect to two
grievors, (Koeslag and Brideau grievance), on January 12, 2016 and the parties
are now proceeding with the grievance of Suresh Vadera. They have further
agreed to proceed on the basis of the following Agreed Statement of Facts
(“ASF”):
1. Suresh Vadera (the “Grievor”) submitted a TEI application to the
Employer on March 6, 2013.
2. The Grievor’s continuous service date was February 12, 1981.
3. At that time, the Grievor was employed as a Senior Database
Administrator in an OPSEU position in the SO 5 classification. The
Grievor’s position was in the DBA and Middleware Support Office,
Infrastructure and Technology Services, Office of the Corporate Chief
Information Officer, Treasury Board Secretariat. This was an office
within the Data Center Operations Branch. His work location was 222
Jarvis Street, Toronto.
4. The Employer advises that it considered the specific circumstances of
the Grievor’s TEI application, and did not approve it because:
A. The Employer had an ongoing need for the work
being done in the position occupied by the Grievor.
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B. The Employer wished to retain the specific expertise
and experience of the Grievor.
5. In 2013 and 2014, a number of TEI applications were approved in the
Infrastructure and Technology Services division (Data Centre
Operations Branch), while a number of others were not approved.
6. In October 2013 an employee in a Senior Software Analyst-IMS
position in the SO 4 classification at the DBA and Middleware Support
Office (the Grievor’s office) exited the organization after their TEI
application was approved. The work performed by this employee was
different from the Grievor’s work. This employee was senior to the
Grievor.
7. In April 2014 an employee in Senior Systems Software Specialist-DB2
position in the SO 6 classification in the DBA and Middleware Support
office (the Grievor’s office) exited the organization after their TEI
application was approved. The work performed by this employee was
different from the Grievor’s work. The employee was senior to the
Grievor.
8. The Employer determined that the exit of the applicants who were
approved for TEI supported the transformation of the OPS.
9. The Grievor retired in November 2013.
10. At the time of the Grievor’s application, and continuing beyond the time
of his retirement, it was anticipated by the Employer that there would
be reductions in the OPSEU bargaining unit of the OPS, and also that
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there could be reductions, including by way of potential layoffs, of
employees in ITS. This was confirmed by postings related generally to
potential layoffs in the OPS pursuant to the Employment Standards Act
(attached) as well as by advice to the Union specifically provided by the
Employer in writing related to ITS rationalization, for example by letter
dated January 10, 2014 (attached). The Grievor’s work unit was not
impacted by those proposed reductions, and was not planned to be.
11. Prior to the Grievor’s retirement, 7 applications for the TEI submitted
and were recommended for approval in the Grievor’s branch (Data
Centre Operations). Of those 7, 3 of the applicants were junior to the
Grievor, however, none were in the Grievor’s work unit and none were
SO 5s. None of the approved TEIs were doing similar work as the
Grievor.
12. After the Grievor’s retirement, in the year 2014 through 2016, 7
applications for the TEI were submitted which were recommended for
approval in the Grievor’s branch. Of those 7, 6 applicants were junior to
the Grievor. None of the approved TEIs were doing similar work as the
Grievor.
13. None of the applicants whose applications were recommended for
approval held the same position or worked on the same databases as
the Grievor.
14. The work performed by the Grievor related to supporting the Ministry of
Education databases which were IBM DB2 databases. By the time of
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the grievor’s retirement, the Ministry of Education IBM DB2 databases
were no longer being supported by the DCO. The Employer
acknowledges that the Grievor was working on Ministry of Education
databases, when his position was transferred to ITS as part of the 2006
eOntario consolidation of infrastructure technology roles.
15. The Employer has retained a need for work similar to that which the
Grievor performed since his departure, but which related to IBM DB2
databases supporting other ministries which had not been part of the
grievor’s regular duties. The Employer maintains that there was more
work in the unit than the DB2 databases being referenced and the
position was and is still required. This work included other DB2
databases that continue to be supported to this day. Following the
Grievor’s retirement, the Employer held five job competitions between
2014 and 2017 to fill SO 5 positions in the Infrastructure and
Technology Services division. Only one competition yielded a
successful candidate. As of now, the Employer’s intention is to
continue its efforts to recruit for SO 5 positions in the future. The
Employer has other DB2 databases and the Grievor’s skills and
knowledge and the position’s skill and knowledge were not limited
solely to the EDU databases being referenced.
16. The specific ID number for the position previously held by the Grievor
was inactivated on October 22, 2015. The Employer advises that this
was part of an administrative vacancy management process. The
employer further advises that the deactivation was not based on a
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need, or lack of need for the position, and was done without the
knowledge or input of the direct manager responsible for the position.
The position continues to exist within the unit and still needs to be
filled.
[2] The parties supplemented the Agreed Statement of Facts with vive voce
evidence from the Grievor and Andrew Thorne, who managed the Grievor’s work
unit. Mr. Vadera confirmed that he began working on DB2 databases for the
Ministry of Education, (“EDU”), in 2003 when the work was largely performed on
a Windows platform. He also worked on Oracle databases, however, none of the
databases that he supported were on UNIX, which ultimately became the
dominant operating system within the OPS. The Grievor estimated that he would
need roughly 6 months of training at a cost of $20-30,000 to be qualified to
support databases on the UNIX platform.
[3] By the time Mr. Vadera applied for TEI, his database support work had
significantly diminished and he was performing largely administrative work
assigning service requests to other employees in the unit. He knew that there
was a government wide initiative to reduce staff and, since he believed that
retraining would require a significant commitment of time and money, he decided
to retire, rather than risk being laid off, and then subsequently applied for TEI. He
acknowledged that he was never told by management that he might be let go,
however, he believed that his unit, not just the larger ITS group, was at risk for
downsizing. Consequently, he thought his job was in jeopardy and that his best
option was to apply for the TEI.
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[4] Mr. Thorne confirmed that by 2013 there was very little support required for DB2
databases on Windows, with most of the applications now built on UNIX. He
testified that the general trend over a number of years had been away from using
Windows as an operating system in favor of UNIX, which had greater power and
stability. Similarly, the use of DB2 reduced in preference to Oracle. By 2013
Oracle and UNIX were predominant, whereas DB2 comprised only about 1% of
their work in the OPS. Although there were still some major systems running on
DB2, such as myOPS and the WIN pay system, it was not growing.
[5] Mr. Thorne agreed with Mr. Vadera’s description of the duties that were assigned
to him prior to his departure. When Mr. Thorne arrived in 2013 he saw that there
was very little work in the unit supporting DB2 on Windows. He understood that
Mr. Vadera was interested in retiring rather than being retrained, so he
transferred work to him that essentially supported other team members. In Mr.
Thorne’s opinion, this assignment was not sustainable and was made in the
expectation that Mr. Vadera would be retiring.
[6] Mr. Vadera submitted his application for TEI to Mr. Thorne, who did not make the
final decision, but, when asked for his opinion, did not recommend that it be
approved. Mr. Thorne’s recommendation was based on his understanding that if
the TEI was granted the Unit would have to give up the corresponding FTE.
Since there was an ongoing need for Mr. Vadera’s position, Mr. Thorne did not
recommend granting Mr. Vadera’s request for TEI; Mr. Vadera’s intention to retire
played no role in his decision.
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[7] Mr. Thorne testified that Mr. Vadera’s position continues to evolve as technology
changes and that currently candidates require training and expertise in UNIX.
However, in Mr. Thorne’s view, Mr. Vadera would only have required relatively
minor upgrading of his skills in order to perform the ongoing work of his former
position. The Grievor was given the opportunity to retrain, but he elected to retire
instead.
Appendix 46
[8] Appendix 46 sets out the parties’ agreement to a Transition Exit Initiative and
provides as follows:
1. All regular, regular part-time and flexible part-time employees will be
eligible to apply to a Transition Exit Initiative (TEI).
2. An employee may request in writing voluntary exit from employment
with the OPS under the TEI, which request may be approved by the
Employer in its discretion. The Employee’s request will be submitted to
the Corporate Employer. The Employer’s approval shall be based on
the following considerations:
i. At the time that an employee TEI request is being considered, the
Employer has plans to reduce positions in the OPSEU bargaining
unit; and
ii. The Employer has determined in its discretion that the employee’s
exit from employment supports the transformation of the Ontario
Public Service.
The Employer shall provide written confirmation of receipt of
the employee’s request within 30 days with a copy to the
Union. If the employee’s request is approved, the Employer
shall provide written notification to the employee with a copy
to the Union, and such notification shall include the job title,
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classification, Ministry and workplace of the employee. An
employee may withdraw his/her request by written notice to
the Corporate Employer.
3. If there is more than one employee eligible to exit under the TEI, the
determination of who will exit shall be based on seniority.
4. An employee who has received notice of Employer approval to exit
under the TEI shall be deemed to have accepted one of the options as
outlined in Paragraph 5.
5. An employee who exits from employment under TEI will only be
entitled to the following:
i. A lump sum of six (6) months’ pay, plus one (1) week pay per year of
continuous service; or
ii. Continuance of salary plus benefits (except STSP and LTIP) for six
(6) months commencing on the date set out in Paragraph 6, plus one
(1) week pay per year of continuous service or its equivalent period
of further salary continuance plus benefits (except STSP and LTIP).
For clarity, during the salary continuance period, employee and
Employer pension contributions and vacation and pension credits will
continue to accrue. Notwithstanding the above, the further salary
continuance period shall not be greater than the length of time
between the commencement of the salary continuance and the end
of the month in which the employee will attain sixty-five (65) years of
age. Any remaining balance will be paid forthwith as a lump sum.
iii. Where the employee does not choose a specific pay-in–lieu option,
the employee shall be deemed to have chosen the lump sum option
under 5(i).
6. Where an employee is exiting under the TEI, his or her last day at work
shall be five (5) working days after the notice of Employer approval to
exit is received, or such other period as the employee and the
Employer shall agree.
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7. The payment under Paragraph 5 and any payout of unused vacation or
compensating leave credits are payable as soon as possible, but no
later than three (3) pay periods following the employee’s exit under the
TEI.
8. Employees exiting under the TEI shall have the entitlements in
Paragraph 5 in lieu of the entitlements in Article 53 or 78 (Termination
Payments) and paragraph 4 (b) of Appendix 9 (Employment Stability)
of the Collective Agreement.
9. The parties agree that all employees exiting under the TEI are doing so
pursuant to a program of downsizing undertaken by the Employer and
in so doing are preventing another employee from being laid off.
Accordingly, the Employer agrees to take all necessary steps to
attempt to ensure that the Human Resources and Skills Development
Canada recognizes that the entitlement to Employment Insurance of
employees who are laid off and who take a pay-in-lieu of notice option
qualifies as registered ‘workforce reduction processes’ under the
Employment Insurance Act.
10. The parties agree that at no time will the numbers of employees exiting
under the TEI exceed the number of positions identified by the
Employer to be reduced in the bargaining unit.
11. This MOA forms part of the collective agreement.
Submissions
[9] The Union submitted that the Employer’s discretion under Appendix 46 is
structured to require only two things: plans to reduce positions in the OPS and
that the employee’s exit supports transformation within the OPS. In the Union’s
submission, the Grievor’s application met those conditions. In 2013, when the
Grievor submitted his application for the TEI, there was an overall reduction in
positions in the OPS; there was a planned reduction and reorganisation in the
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Information Technology group; and TEI applications were approved in the branch
overall, albeit not in the Grievor’s work unit. Most importantly, the Grievor’s work
had diminished and was continuing to diminish as technology changed. Indeed,
his work declined to the point that only a fraction of the work that he used to do
remained and he was relegated to a largely administrative role.
[10] In the Union’s submission, the TEI is an entitlement for a person, not a position:
paragraph 2 of Appendix 46 speaks to whether the employee’s exit supports the
transformation of the OPS. The Union maintained that there was a transformation
in the work the Grievor was trained to do and had previously performed, which
was servicing DB2 databases on Windows. His departure would therefore
support the transformation of the work that needed to be done, given that he
could no longer provide the required support. In the factual context of this case,
the Grievor’s exit would thus support the transformation of the OPS and lay the
groundwork for the Employer to modernise its’ information technology unit.
[11] The Union argued that “transformation” was not restricted to downsizing. It took
the position that although Appendix 46 references workforce reductions in
Paragraph 9, this provision was merely a deeming agreement that preserved
employees’ entitlements to other, external programmes by deeming an exit under
TEI a downsizing. It further argued that while Paragraph 10 limited the number of
TEI applications that can be granted to an amount no greater than the overall
complement of jobs eliminated in the OPS, it did not connote a one to one
relationship that required the elimination of a position in the OPS for every TEI
that was granted.
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[12] The Employer submitted that the relevant consideration under Appendix 46 is
whether there is a continuing need for the individual applicant’s position, which in
this case there was. The TEI deals with two circumstances: is there someone
else in the OPS with a job that might be impacted by surplus and is there a
different position that can be eliminated instead. In the Employer’s view, it is a
position to position assessment. The Grievor’s position is one that is highly
skilled and unique and is still required within the OPS; no TEI’s were granted for
any employee in that position nor were any of these positions eliminated.
[13] The Employer argued that Paragraph 9 is not just a deeming provision, but
makes it abundantly clear that the TEI is intended to allow another, potentially
affected employee to remain within the OPS. In this case, the Grievor’s departure
from the OPS would not save another employee. In fact, as argued by the Union,
it is the Grievor himself that is the vulnerable employee, however, granting a TEI
to him and then filling his position with someone else does not support a program
of downsizing, and is therefore not contemplated by Appendix 46.
[14] The Employer urged me to reject the broad definition of transformation asserted
by the Union. The fact that the nature of the Grievor’s work was changing was
not a “transformation” contemplated for approval of a TEI. Indeed, the nature of
the Information Technology environment is that of continuous evolution: as the
technology changes, those who work in the field must constantly upgrade their
skills and receive training to keep up with these changes.
[15] In reply, the Union argued that “transformation” has a much broader meaning
than merely workforce reduction. In paragraph 2, the parties refer to these as
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separate conditions: there must be a plan to reduce positions and the applicant’s
exit supports the transformation of the OPS. The parties could have, but did not
elect to say that the exit must support the reduction, but rather used much more
open-ended language when it stated that the employee’s exit must support the
transformation of the OPS.
[16] The Union also suggested that the references in paragraph 2 (i) and paragraph
10 to reductions to “positions in the bargaining unit” suggest that it is a bargaining
unit wide transformation that is contemplated, which belies the Employer’s
argument that it requires a position for position swap. Moreover, Article 20.7
already includes a voluntary exit option, where an employee can volunteer and, if
matched to a surplus employee, participate in a job swap. On the Employer’s
interpretation, the TEI would be unnecessary.
Analysis
[17] The Grievor was a long service employee who experienced dramatic changes in
his core duties as a Database Administrator as technology shifted from one
operating system to another. Mr. Vadera had spent virtually his entire career
supporting DB2 databases in a Windows environment. As the predominant
operating system used in the OPS changed from Windows to Unix, an alternate
platform, he was increasingly unable to support the ongoing work in his unit.
Consequently, in his final months with the OPS he performed minimal work on
the waning Windows based DB2 databases, and spent most of his time
assigning work tickets to other team members. Mr. Thorne, his manager,
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confirmed that this assignment was not sustainable and was expected to be short
term, pending Mr. Vadera’s retirement.
[18] Mr. Vadera determined that his best option was to retire and apply for a TEI. He
had no interest in retraining at that late stage of his career and, in any event, he
believed that it would be too expensive and time consuming. I accept that he
believed that there were very few options available to him and that there was a
real likelihood that he would be laid off at some point in the near future. He
candidly acknowledged, however, that this fear was based on conjecture and his
personal assessment of his circumstances; it was not based on any information
that he received from management indicating that his position would be
eliminated. Nonetheless, I accept that Mr. Vadera genuinely felt that his job was
at risk and that he should therefore take matters into his own hands.
[19] In these circumstances, I understand full well why Mr. Vadera thought the writing
was on the wall, that his job was at risk and that the TEI was an attractive option.
However, this is not a grievance about surplussing or whether the Grievor was
managed out of his position. The sole issue before me is whether the Employer
violated Appendix 46 when it did not approve the Grievor’s application for TEI.
[20] Mr. Thorne testified that the only reason he did not recommend approval of the
Grievor’s application for TEI was because there was an ongoing need for this
position. I accept his evidence, and although he acknowledged that he took Mr.
Vadera’s retirement plans into account when assigning work to him in his final
months, I am satisfied that he based his recommendation entirely on whether the
Grievor’s position was required going forward. I also accept Mr. Thorne’s
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estimation, which was not disputed, that the Grievor’s position has not in fact
been eliminated, nor have any individuals in comparable SO5 positions been
approved for TEI.
[21] In my previous award, I determined that Appendix 46 affords the Employer very
broad discretion in deciding whether to approve a TEI:
[22] … the language used in paragraph 2 clearly affords the Employer
broad discretion to approve or deny an employee’s request for TEI. It
provides that the Employer may approve a request for TEI in its discretion,
if the Employer has plans to reduce positions in the OPSEU bargaining
unit and it has determined in its discretion that the employee’s exit
supports the transformation of the OPS.
[23] Broad discretion in the approval of TEI requests also makes sense in
light of the objective and purpose of Appendix 46. The stated objective is
to encourage employees to voluntarily leave the OPS and avoid
involuntary layoffs if the number of positions in the OPS must be reduced.
Given that objective, management must be permitted to consider whether
offering a costly incentive in a particular case actually assists them in
meeting that objective. On the Union’s interpretation, the TEI would
operate more as a general retirement benefit than a targeted inducement
to minimise the impact of workforce reductions.
[22] In argument, counsel for the Union stated that the Grievor’s position had
transformed and that the departure of the Grievor from the OPS would therefore
assist the Employer with the transformation and delivery of their Information
Technology services. The key issue for the Union was whether the focus under
Appendix 46 should be on whether the individual’s departure assisted in the
transformation of the OPS whereas the Employer took the position that it was
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entitled to restrict its’ focus to whether the elimination of the position held by that
individual supports the transformation of the OPS.
[23] Having carefully considered the arguments advanced in this matter, I am not
persuaded by the Union’s argument that transformation of an individual’s position
is what was contemplated under Appendix 46. Paragraph 2 (ii) explicitly refers to
transformation of the OPS, not transformation in the OPS. Moreover, on the
Union’s interpretation, any significant changes in duties, skills or assignment
would require approval for TEI applications from employees in the affected
positions. As pointed out by the Employer, rapid advances in information
technology is widely recognised as a constant feature of that field. I am not
convinced that Appendix 46 was ever intended to operate so that employees who
require retraining or upgrading of their skills are necessarily entitled to TEI as an
alternative, if they prefer.
[24] Although the Union said that it was not asking that the Grievor be surplussed, the
essential foundation of their argument is that the Grievor was no longer able to
perform the core duties of his job and therefore his request for TEI should have
been granted. The Grievor believed that his skills were redundant and that he
was therefore at risk for losing his job. He is seeking TEI not to prevent another
employee from being laid off, as set out in paragraph 9 of Appendix 46, but rather
to ease his own departure.
[25] In these circumstances, it is hard to see how granting a TEI would benefit the
Employer with their need to reduce the OPS workforce or assist other affected
employees. As I determined in my earlier decision, I do not regard Appendix 46
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as a general retirement benefit. It is a targeted tool that the Employer can use in
its’ discretion, so long as the specific requirements enumerated in Appendix 46
are respected and the decision complies with the general limits that apply to the
exercise of discretion.
[26] I do not accept the Union’s position that Paragraph 9 is merely a deeming
provision. While it may be that it was an important component to ensure that
affected employees maintain access to other programs, there was no evidence
that it did not accurately reflect the general objective underlying the availability of
the TEI. Paragraph 9 states that the parties agree that employees are exiting
“pursuant to a program of downsizing” and their exit is “preventing another
employee from being laid off”. This explicit reference reinforces the conclusion I
reached in my previous decision that when Appendix 46 is read as a whole, it is
apparent that it is intended to operate as a “targeted inducement to minimise the
impact of workforce reductions.”
[27] The Union also suggested that the Employer’s interpretation of Appendix 46 was
too narrow, particularly in its’ view of what was meant by “transformation of the
OPS”. I agree that “transformation” can have a broader meaning than merely
workforce reduction. It would have been open to the Employer to consider a
more expansive definition, beyond considering whether a one for one swap can
be achieved through the departure of the individual who has applied for TEI.
They could have embraced a more open, creative definition of transformation
and how an individual’s departure would support that vision.
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[28] However, they were not required to do so. The Employer is entitled to “determine
in its discretion that the employees exit supports the transformation of the OPS”.
They have determined that the relevant factor to consider was whether the
applicant’s exit would reduce the complement of their workforce. Since the
Grievor’s position was required, filled either by him or someone else, the
Employer determined that his departure would not assist with the transformation
that was underway.
[29] There is an obvious logic in the approach that the Employer adopted. It is
certainly not arbitrary, unreasonable or discriminatory to exercise their broad
discretion under Appendix 46 by limiting approvals to circumstances where the
departure of the approved employee would free up a position to be eliminated.
The Employer has chosen to focus the TEI on transforming the OPS through an
orderly workforce reduction that avoids disruption and dislocation of employees
where possible. That focus is clearly consistent with the underlying objective of
the Appendix and with the explicit references in the Memorandum of Agreement
to prospective layoffs and mitigating the impact on affected employees.
[30] In my view, the Employer’s use of Appendix 46 is different than the operation of
Article 20.7, which requires that the position of the employee taking a voluntary
exit option will continue to be filled by an employee who has already been
declared surplus. In some respects, the TEI is the mirror opposite. It seeks
volunteers who are in a position that can be eliminated so that reductions in the
overall complement of the OPS can be achieved.
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[31] Nor do the references in paragraph 2(i) and 10 to bargaining unit wide reductions
generally constrain the Employer in the exercise of its discretion beyond the very
specific way enumerated in those paragraphs. Paragraph 2(i) requires that the
Employer has “plans to reduce positions in the OPSEU bargaining unit” as a
condition precedent to the exercise of its discretion to offer a TEI. Paragraph 10
restricts the number of employees exiting under the TEI to a number no greater
than the number of positions that the Employer has identified will be reduced in
the bargaining unit. While these provisions curtail the approval of a TEI unless
the enumerated conditions are met, it does not dictate nor address the manner in
which an individual application should be determined. Specifically, I do not
consider the reference to reductions in the ‘bargaining unit’ to have any
relevance to an individual decision to grant a specific request for TEI.
[32] For all these reasons, I would dismiss the grievances filed by Suresh Vadera with
respect to the non-approval of his TEI.
Dated at Toronto, Ontario this 28th day of June, 2018.
“Reva Devins”
______________________
Reva Devins, Arbitrator