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HomeMy WebLinkAbout2013-1446.Union-Heath et al.21-03-03 Decision Crown 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#2013-1446, 2013-1574, 2013-1696 UNION#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 (Union-Heath et al) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Reva Devins Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING February 1, 2021 - 2 - Decision [1] These grievances are part of a series regarding the operation of the Transition Exit Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The parties agreed that the current matters should be determined in accordance with Article 22.16 of the Collective Agreement. [2] Grievances were filed by three Probation Officers in the Ministry of Children, Community and Social Services (‘MCCSS’) Youth Justice (‘YJ’). Each of the grievors applied for TEI before they retired from the Ontario Public Service (“OPS”), however, none of their applications were approved prior to their departure. [3] The parties submitted the following Agreed Statement of Facts: 1. A number of employees in various positions employed by the Ministry of Children, Community and Social Services (MCCSS) (the “Ministry”) Youth Justice (YJ) working in a number of institutions/workplaces applied for TEI between January 2013 to December 2018 (the “TEI Applications”) and a number of grievances have been filed on behalf of a number of applicants. 2. There were three (3) individual grievors: • Josie Heath, Probation Officer • Matthew Miller, Probation Officer • Graham Scott, Probation Officer 3. The Ministry did not approve the TEI Applications filed by the Josie Heath, Matthew Miller and Graham Scott prior to their respective retirements. Each of the grievors who were not approved retired after their TEI application was filed and remained pending. It would be the Ministries’ evidence that it did not grant the above-noted TEI applications for the following reasons: At the time of the TEI Applications and the TEI Grievances, the Ministry had no intention of reducing the number of employees in the impacted workplaces at the time of their retirement and the exit of the above noted applicants would not support the transformation of the Ontario Public Service. In November of 2019 the Ministry announced the Probation Modernization initiative which resulted in FTE reductions in a number of offices across the province. The Ministry negotiated an agreement with OPSEU and the Ministry of the Solicitor General to assign staff to address Adult P&P vacancies and YJ PO vacancies and approved TEIs and Article 20 severance packages. Approvals for TEI and Article 20 severance packages were approved in offices were there was a reduction or where a - 3 - job trade was approved in discussions with OPSEU. Approximately 35 TEIs were approved in March of 2019. The Union does not have evidence to the contrary. 4. For the purposes of these grievances, the Employer does not dispute that the requirements of paragraph 2(i) of Appendix 46 were met. This is without prejudice to other matters. 5. It will be the Ministry’s evidence that the Ministry reviewed and decided whether to approve TEI applications on an annual basis, and did so prior to the end of the fiscal period (the fiscal year end is March 30th). The number of TEI’s that could be granted in any year were based on a combination of operational needs as well as whether there was budgetary funding available at the end of the fiscal year. Because the funding would not be available after the end of fiscal, any approved TEI’s would need to commence prior to the end of the fiscal year (March 30th) so their cost could be attributed to the year ending. The Union does not have evidence to the contrary. 6. The work of the employees in question relate to the custody and probation of young persons (similar to the Adult Correctional system). The workloads of the employees in question are entirely dependent upon the numbers of young offenders in the system, which can fluctuate from year to year. As well, there are currently higher levels of FXT Youth Services Officer working in the institutions based upon client needs. It would be the Ministry’s evidence that workforce reductions or increases are not based solely on the levels of youth custody and probation at a specific time, but rather over a sustained period of time as it is difficult to impossible to determine future occupancy and probation requirements. The Union does not have evidence to the contrary. 7. The grievors were free to seek advice regarding TEI from the union. MCCSS YJ Probation and Parole: a. Josie Heath, (CSD November 7, 1983) applied for TEI on January 22, 2016 and retired in March of 2017 and her position has not been replaced. The grievor was a PO2 in Brantford. Three PO2s out of the Hamilton office were granted TEI in 2015 and all had earlier CSDs than Heath ( CSD 1983, CSD 1981, CSD 1975). She was advised by management that at the time it was not operationally feasible for her to be approved for the TEI. At the time the grievor had a very small caseload. Her caseload was down to approximately 5-10 clients down from approximately 60. The Employer also did not replace a 2013 retiree in the same office. Heath was the only employee in her office to request the TEI in 2016. From 2016 to 2019, three Brantford POs were assigned to work at both the Brantford office and the Hamilton office. It is the Ministry’s evidence that it was not uncommon to share staff between offices. In November 2019, two POs transferred out of Brantford to another office and were not replaced. In July of 2019, one PO in the Simcoe Satellite Office received TEI. In 2019 another coworker left through TEI and was not replaced. b. Matthew Miller (CSD August 13, 1984) applied for TEI on October 27, 2015 and retired on December 1, 2016. He was a PO2 in St. Catharines and had - 4 - been employed since Aug 1984. His salary was approx. $1462.23 at the time and Miller believes a replacement would have been at approx. $1183.16. The St. Catharines office had lower workloads at the time of his retirement and he was not replaced when he retired. One PO2 was approved for TEI in 2014 with a 1980 CSD, but no TEIs were approved for St. Catharines in 2015 and 2016. Although his TEI application was still pending, Miller retired due to the forced sharing of the benefit premiums change set for Jan 1, 2017. Miller was rehired as an FXT employee with the Ministry of the Solicitor General in February of 2017. In 2012 two Coworkers retired. They did not receive TEI. They were replaced by lateral transfers from two other POs. A grievance in relation to the transfer was filed by a third PO. Agreement was reached the third PO would assume the next position. In May 2014 a PO retired she was granted the TEI. Her position was replaced by the third PO by agreement. In November 2016 when Matthew Miller retired his position was not replaced. He was denied the TEI. In 2019 two coworkers retired and were not replaced. They were granted the TEI. c. Graham Scott (CSD June 29, 1987), a PO2 out of Mississauga, applied for TEI on October 29, 2014 and retired in January of 2015. The grievor does not believe that his position was filled. In and around October 2014 the grievor spoke with his boss about the TEI and was advised that it was not likely TEI would be offered that year or next, but his boss would not be aware of who might receive approval for TEI. In November 2014 the grievor issued an intent to retire notice but noted that he wished to be included for TEI. In Nov 2014 the Supervisor asked the grievor’ s boss to provide names of those that might be interested in applying for TEI. In 2014, another employee (OAG8) was approved and Scott believes her position was filled shortly thereafter. The Ministry states that they moved an OAG8 FTE from a different Probation office. The grievor does not believe that his position was filled. One PO2 (CSD of June 1983) in the Mississauga office was approved for TEI in March 2015, and exited the OPS on June 1, 2016. Appendix 46 [4] The relevant provisions of Appendix 46 are set out below. I have included the initial provision and noted where it was subsequently revised: 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 - 5 - its sole 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. iii. The Employer will consider whether employees are on the TEI list when making surplus decisions. [added to revised Memorandum of Agreement, October 30, 2015]. 3. If there is more than one employee eligible to exit under the TEI, the determination of who will exit under the TEI shall be based on seniority. [or] If there is more than one employee eligible to exit under the TEI within the same workplace, the determination of who will exit under the TEI shall be based on seniority [revised, effective October 30, 2015]. Submissions [5] The Union summarised its understanding of the previously decided cases: 1. The primary focus of decisions released to date has been on the scope of the Employer’s discretion to decide if an employee’s exit would support transformation of the OPS under paragraph 2 of Appendix 46. - 6 - 2. The Board has determined that the Employer is entitled to determine which factors it considers most relevant in the exercise of its discretion. 3. The Employer has consistently taken the position that in the exercise of its discretion it focused on downsizing and reducing complement. 4. The Employer has attempted to achieve its objective by offering a targeted inducement to employees. 5. In reviewing the Employer’s decision, the Board has considered whether departing employees, who requested TEI, were replaced after they left the OPS, with their work maintained and still being performed. 6. Absent evidence of discrimination, bad faith or that a junior employee received TEI in preference to a more senior employee, refusal to approve a request for TEI has been upheld. [6] In this case, the Union argued that the Employer engaged in arbitrary, bad faith and discriminatory decision making. The Union was not alleging that there was discrimination on the basis of a protected ground under the Human Rights Code, but rather that the grievors were subject to different treatment than others who were approved before and after them. [7] Counsel acknowledged that the Board has already determined in Koriscil that the timing of a request can significantly affect the outcome. The Union also accepted that not all applications need to be approved. What the Union says makes this case unique is that the grievors were sandwiched between two sets of TEI approvals, both immediately before and a few years after they submitted their requests. Their workload was in decline and they were not replaced after they - 7 - retired. The Union maintained that these facts demonstrate that there was a need to downsize the workforce, which it argued is inconsistent with the Employer’s assertion that it was not operationally feasible to grant the requests to exit under the TEI. It submitted that the Employer’s decision was therefore arbitrary or in bad faith. [8] With respect to Grievor Scott, who was advised that management was looking for volunteers to exit under the TEI, the Union maintains that the Employer acted in bad faith when it failed to approve his request after soliciting volunteers. [9] Counsel for the Employer submitted that it was not up to the Union to determine when and whether a TEI request should be granted or how and when there will be downsizing in the OPS. The Employer further submitted that it had already been determined in previous cases that it was not compelled to approve a request for TEI even if work was diminishing. In this case, the Employer had no plan to downsize its operation at the time it considered the grievors applications for TEI. In the Employer’s submission, earlier or later approvals do not convert a decision into one that is arbitrary or made in bad faith. [10] The Employer noted that the nature of the work at issue was an important consideration and that it need not make staffing decisions based on weekly, monthly or even yearly fluctuations in youth custody and probation rates. The Ministry ultimately acted on the declining workload and a number of TEI requests were therefore granted in 2019. In the Employer’s submission this does not mean that earlier decisions were arbitrary or in bad faith. Rather, in the Employer’s view, - 8 - it reflected the need for prudence and its right to determine when and whether there should be downsizing of the OPS. [11] Finally, the Employer’s evidence was that TEI decisions were made on an annual basis, at the end of the fiscal period. Therefore, it submitted that it did not have an opportunity to fully consider Grievor Scott’s request for TEI both because he retired prior to their annual review and within a few months of submitting his request. Analysis [12] I have now issued several decisions on the scope of the Employer’s discretion to allow or deny a request for TEI: Koeslag, issued January 12, 2016, Vadera, June 28, 2018, Kimmel, November 29, 2018, Anich, August 9, 2019, Klonowski, November 7, 2019, Fairley, February 12, 2020, Alcock, March 2, 2020, Bowman, March 9, 2020, Cullen, June 15, 2020 and Koriscil, June 18, 2020. [13] I have previously concluded that: i.Appendix 46 confers a broad discretion on the Employer to determine whether granting a request for TEI would support its vision of transformation of the OPS: Koeslag, supra; ii.Despite this broad discretion, the ordinary principles for the proper exercise of discretion apply. Consequently, when the Employer considers requests for TEI, the decision cannot be based on irrelevant considerations or otherwise violate the principles set out in Re Kuyntjes, GSB #513/84 (Verity): Koeslag, supra. - 9 - iii.While recognising that there may be a number of approaches that the Employer could adopt with respect to transformation of the public service, it remains in the Employer’s sole discretion to decide whether an ‘employee’s exit from employment supports transformation’ and, in so doing, to determine which factors are relevant to exercising their discretion: Vadera, supra. iv.The Employer can offer the TEI as a targeted inducement to encourage employees to voluntarily retire or resign, allowing them to eliminate a position without the need to surplus other employees who wish to remain. However, the Employer is not required to approve all requests for TEI, even where there is evidence of change or transition. The Employer retains the discretion to determine when and how the TEI will be offered: Kimmel, supra and Anich, supra. v.An identical outcome for many grievors does not automatically mean that the Employer improperly exercised their discretion by applying a blanket rule. Where the common denominator among grievors was a rational consideration that was reasonably related to achieving transformation, the discretion was properly exercised: Klonowski, supra. vi.Absence evidence of bad faith or discrimination, the approval of an earlier request for TEI, on its own, is not sufficient to establish an improper exercise of discretion: Koroscil, supra. [14] The Union’s argument in this case hinged on the waning workload in the years prior to the grievors’ requests for TEI and the approval of other requests before and after. In these circumstances, the Union argued that the facts do not support - 10 - the Employer’s contention that it was not operationally feasible to approve their exit under the TEI. [15] I agree with the Employer’s submission that, fundamentally, the Union is challenging the Employer’s right to determine when and whether it will downsize the workforce. As set out in the summary of earlier caselaw, I have previously found that the TEI is not a general retirement benefit and that the Employer has a broad discretion to determine whether, and in what circumstances, an employee’s exit will support its vision of transformation of the OPS. That discretion includes a determination on timing and when to make reductions in the workforce. [16] The grievors believed that they were good candidates to exit the OPS under TEI because of their diminishing caseload. Despite their beliefs, the Employer alone is entitled to make that decision for the purposes of TEI. While there was evidence that the grievors were not replaced upon their retirement, their FTEs were maintained until 2019 when the Employer engaged in a broader downsizing initiative. In my view, there was nothing arbitrary or discriminatory about the Employer’s decision. Nor is there any indication that it was made in bad faith. [17] The parties agreed that Probation Officers’ workload depended upon the numbers of young offenders in the system and that the population being served can fluctuate year to year. The Employer suggested that it took a long range view when it considered whether a reduction in Probation Officers (YJ) was desirable. It took into account both the current level of youth custody and probation and the trend over a more sustained period of time. When it determined that it could safely reduce numbers, it did so and granted close to three dozen requests for TEI. - 11 - [18] As I have previously held, even where the conditions offer a basis to decide that an applicant’s exit supports transformation of the OPS, the Employer does not have to grant all or any individual requests. Despite the grievors’ sincere view that their positions could be eliminated at the time they wished to retire the Employer was entitled to pursue a slower course of action. In my view there is nothing arbitrary, discriminatory or indicative of bad faith in these circumstances. I cannot fault the Employer for being cautious. It made a rational decision, based on its view of how to best serve a vulnerable population and respond to an apparent decline in workload. [19] I appreciate that the grievors were deeply disappointed with the Employer’s decision not to approve their request for TEI, especially when other requests were approved before and after theirs. However, as I have already indicated, timing matters. A similar argument was made in Koroscil, supra. In that case I found that this outcome was contemplated under Appendix 46: 14. The ongoing operation of the TEI clearly anticipates that not all applications will be granted. Requests made at different times might yield different results based on a number of factors, including how transformation has unfolded to date, what further reduction of the OPS was feasible and consideration of operational needs at the time an application is made. 15. The parties have specifically agreed that seniority will be the determinative factor when more than one employee is eligible to exit under the TEI. The language used in paragraph 3 to provide this entitlement clearly assumes that the Employer might not approve all requests. It also confirms that where opportunities to exit under the TEI are limited, preference will go to the most senior eligible employee. However, in order to be considered eligible, an employee must submit an application. While I know it would be extremely disheartening to realize colleagues departed the OPS under the TEI and yet you were unable to access the same opportunity, that disappointment does not arise from the Employer’s improper conduct. It reflects unfortunate timing and the inevitable effect of limited resources. - 12 - [20] Nor am I persuaded that the Employer acted in bad faith when it failed to approve the request of Grievor Scott. He submitted his request at the end of October and proceeded to retire two months after he learned that the Employer was looking for individuals interested in exiting under TEI. No assurance was made personally to the Grievor that his request would be approved and he did not rely on the Employer’s solicitation to his detriment. Ultimately, the Ministry considered and approved requests for TEI in March, after the Grievor had already left the OPS. In these circumstances there is no evidence of bad faith. [21] Having considered the evidence and the submissions before me, I find that the Employer properly exercised its discretion and the grievances are dismissed. Dated at Toronto, Ontario this 3rd day of March, 2021. “Reva Devins” Reva Devins, Arbitrator