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Home My WebLink About2017-3776.Jacobs et al.21-04-13 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#2017-3776; 2017-3777; 2017-3778; 2017-3779; 2017-3780; 2017-3781 UNION#2017-0579-0011; 2017-0579-0012; 2017-0579-0013; 2017-0579-0014; 2017-0579-0015; 2017-0579-0016 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Jacobs et al) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Dale Hewat Arbitrator FOR THE UNION Brett Hughes Dewart Gleason LLP Counsel FOR THE EMPLOYER Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel HEARING March 9, 2021 - 2 - Decision [1] On November 6, 2020 I issued a decision in this case, Ontario Public Service Employees Union (Jacobs et al.) v The Crown in Right of Ontario (Ministry of the Solicitor General), 2020 CanLII 97349 (the “merits Decision’), in which I found that for the period between May 14, 2016 and November 21, 2017, the Employer violated Article 6 of the Collective Agreement by failing to post and fill vacancies for Operations Officer positions, classified at the Fire Service Advisor 1(“FSA1”) classification, in the Provincial Emergency Operations Centre (“PEOC”). The case was bifurcated with respect to remedy. On January 14, 2021, the Parties attempted to mediate a remedial settlement, but were not able to reach an agreement. Subsequently, on February 18, 2021, I held a conference call with Counsel in which it was determined that before the Parties could move forward in trying to negotiate a settlement again, they wanted direction from me on which section of the Collective Agreement should be relied upon to determine the appropriate remedy in this case. The Union submits that the layoff provisions in Article 20 apply while the Employer submits that the pay administration provisions of Article 7.3 apply. Depending on the outcome of this Decision, the Parties agreed that they would engage in further settlement discussions, failing which, they would appear before me in a subsequent remedy hearing that is currently scheduled for April 28, 2021. [2] For the purpose of this Decision, the relevant general sections of the Collective Agreement are: ARTICLE 7 – PAY ADMINISTRATION 7.3 Where a position is reassessed and is reclassified to a class with a lower maximum salary, any employee who occupies the position at the time of the reclassification shall continue to be entitled to salary progression based on merit to the maximum salary of the higher classification, including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the reclassification takes place. ARTICLE 20 – EMPLOYMENT STABILITY 20.1.1 Where a lay-off may occur for any reason, the identification of a surplus employee in an administrative district or unit, institution or other such work area and the subsequent redeployment, displacement, lay-off or recall shall be in accordance with seniority subject to the conditions set out in this article. [3] In the merits Decision, I ordered that "the timeframe for considering all issues pertaining to […] posting and filling of vacancies […] shall go back until May 14, 2016" but that any remedy would be limited to a period starting 30 days prior to the grievances being filed, i.e., starting on November 14, 2017 for Stephen Knapp and Dan Stanhope and on November 16, 2017 for Jermaine Jacobs. 7. In other words, the liability finding could date back to May 14, 2016 but a remedial order could only date back to November 14 or 16, 2017. - 3 - [4] The Grievors were all employed as Operation Officers at the FSA1 classification in PEOC pursuant to a series of fixed-term contracts for a varying number of years. As summarized in the merits Decision at paragraph 7, during their fixed-term contract tenures, PEOC was structured as follows with the Grievors primarily working at the Duty Desk: [7] PEOC is the Ontario government’s hub for collecting, analyzing, and distributing information about potential and declared emergencies to coordinate the Provincial response. During the Grievors’ employment as Fixed-Term employees, PEOC Operations Officers were assigned to one of two sections: the “duty desk” section which focuses on day-to-day information monitoring and distribution; and the “projects” section, which focuses on a variety of longer-term and one-off projects, such as planning for and monitoring Ontario’s Pan and Para-Pan American Games (the “Pan-Am Games”) in the summer 2015. The Grievors primarily worked as Operation Officers at the duty desk, which is staffed 24 hours per day, 7 days per week, 365 days per year (“24/7/365”). In terms of staffing hours, the duty desk requires at least 8,760 work hours annually, or at least 4.6 full time equivalent positions (FTEs). [5] Based on my conclusion that the Employer violated Article 6 of the Collective Agreement, the Union is seeking a remedial order that would put the Grievors in positions that they would have been in had the Employer posted and filled the regular service FSA1 vacancies by November 2017. The Union maintains that when filling vacancies, Article 6.3 requires the Employer to “give primary consideration to qualification and ability to perform the required duties”, with seniority as the tiebreaker. The Union states that if the Employer had posted the regular service FSA1 vacancies by November 2017, Article 6.3 would have required it to award the 3 FSA1 Operations Officer positions to the Grievors. [6] What actually happened in this case was that in November 2017, the Grievors were employed as Operations Officers FSA1 pursuant to fixed-term contracts. Earlier in 2017, the Auditor General of Ontario conducted an audit of emergency management in Ontario. As part of the audit process, the Employer submitted the Duty Desk job specifications to the Job Evaluation Branch in September 2017 for classification review. On October 12, 2017, the Job Evaluation Branch provided a report to the Employer concluding that based on the job specifications, that the Duty Desk job functions aligned with the Office Administration 10 (“OAD10”) classification and that the position would be classified at the OAD10 rate as an Emergency Management Duty Officer position. As a result of the audit, in December 2017, an Emergency Action Plan was approved by Cabinet in which the Office of the Fire Marshall and Emergency Management (“OFMEM”) received funding to hire additional staff. In early January 2018, the Grievors received notice that their fixed-term contracts would not be renewed in June 2018 and they were encouraged to apply for new Emergency Management Duty Officer (OAD 10) positions that were announced on January 12, 2018 and then posted on January 16, 2018. The Grievors applied for and were awarded 3 of 8 regular full-time service positions as Emergency Management Duty Officers that commenced on June 4, 2018 following the expiration of their fixed-term contracts. The remaining 2 PEOC full-time Operations Officers continued in their positions as FSA1 Operations Officers but their work continued at a higher level of - 4 - duties related to leading and coordinating projects and program business plan objectives, as necessary (Paragraph 11 merits Decision). Union’s Submissions [7] The Union claims that the Grievors would have held regular service FSA1 positions by the end of 2017 based upon its reading of my remarks at paragraph 44 of the merits Decision where I stated that “Had those full-time positions been posted, it is likely, given the Grievors’ skill, qualifications and seniority, that they would have been awarded these positions”. The Union argues that the primary remedial issue is therefore the effect of the Employer’s transfer of duties from the Grievors’ FSA1 positions to new OAD10 positions in June 2018. In that regard, the Union states that the Employer could not have removed the Grievors from their regular service FSA1 positions in June 2018, without laying them off, which would have entitled them to the protections in Article 20 of the Collective Agreement (Employment Stability). The Union is seeking a declaration that the transfer of all of the duties from the Grievors’ regular service FSA1 positions to OAD10 positions would have constituted a layoff and is also seeking an order directing the Parties to negotiate the specific remedy that flows from such declaration. [8] The Union argues that transferring all of the Grievors’ duties from FSA1 to OAD10 position was de facto abolition of their positions or a material change that deprived them of fundamental incidents of their employment, namely classification and wages resulting in a layoff that would have triggered contractual remedies under Article 20. Unlike the Grievors, the Union notes that the other 2 FSA1 Operations Officers remained in their positions which were not reclassified and that FSA1 vacant positions remain listed on the Employer’s organizational charts. [9] From the Union’s perspective, on June 4, 2018, when the Employer transferred all duties associated with the PEOC Duty Desk from the Grievors’ FSA1 positions to the new OAD10 positions, the Grievors would have found themselves without any duties to perform. In essence, the Union maintains that the complete transfer of duties to another position constitutes a layoff within the meaning of Article 20. [10] The Union submits that if a collective agreement does not include "a specific provision reflecting a different meaning, a layoff is a period of time off work due to a lack of work": LIUNA, Local 183 v York Condominium Corp. No. 281, 2012 CarswellOnt 8170 at ¶55 (Ont Arb) (Steinberg). The Union notes that the present agreement does not include a provision reflecting a different meaning and while article 20.17.2 provides that "lay-off means the same as release per Section 39 of the Public Service of Ontario Act, 2006", that legislation only sets out permissible reasons for a layoff, not a definition which are shortage of work, shortage of funds, elimination of position, or material change in the ministry. In addition, the Union submits that this interpretation was mirrored in an earlier iteration of article 20.1.1, which began: 24.1 Where a lay-off may occur by reason of shortage of work or funds or the abolition of a position or other material change […] [emphasis added]. - 5 - The Union submits that the general arbitral definition of layoff applies under this Collective Agreement. It argues that not only was there a material change in the Ministry, but also, that the complete transfer of duties from the FSA1 positions to OAD10 positions would have resulted in the Grievors being off work as there would have been no work for them to perform in their FSA1 positions as of June 4, 2018. [11] In addition, the Union maintains that employees are laid off from employment if there is a lack of work that includes the fundamental "incidents" of their home positions. The Union notes that classifications and the associated rates of pay are fundamental incidents of the unionized employment relationship and provide the basis around which much of the collective agreement, if not also the performance of bargaining unit work, is organized. As a result, "the removal of an employee from her existing classification for reasons of a lack of work triggers the application of the layoff provisions of the collective agreement" (Queensway-Carleton Hospital and AAHPO (Hodgins), Re, 1999 CarswellOnt 6678 at ¶31 (Ont Arb) (Goodfellow). [12] Reference is also made to the decision in Western Grocers v RWDSU, Local 469, 1989 Carswell Man 565 at ¶64 (MB Arb) (Freedman): When reducing the workforce in the warehouse the Company may assign remaining work to remaining workers, so long as it does so in conformity with the management rights clause (and not in contravention of the restrictions in the management rights clause), with respect to shifts and locations as the Company in its judgment thinks appropriate (and subject to the Agreement). However, assigning remaining workers to lower classifications effectively constitutes a layoff, giving those persons the right to bump. So long as persons are not in fact or constructively laid off in a manner which adversely affects their classification or pay, we do not see the Company's rights constrained in respect of shift or location in terms of assigning workers (subject to the other express provisions of the Agreement, for example, art. 6(c)). The incidents of the job that, in this context, are relevant, are classification, pay, shift and location. Acts of the Company affecting the first two are almost certainly going to run a foul of the Agreement, as those two incidents are negotiated expressly, and objectively set forth in the Agreement. […] [Emphasis added.] [13] The Union also argues that parties have negotiated express language in Article 20 consistent with the principle that an employee’s removal from their home classification constitutes a layoff by referring to the following provisions: (a) Article 20.3 (Targeted Direct Assignment) provides that an employee may be assigned to a position "in the same classification, or in the same class series within a range of two classifications below the employee's current home position". (b) Article 20.4 (Displacement) provides that an employee has the right to displace another employee "with the least seniority in the same classification and the same ministry as the employee's surplus position". (c) Article 20.6 (Recall) provides that an employee is entitled to be recalled to a position that becomes vacant "in the same classification and ministry as his or her former position". - 6 - [14] Finally, the Union submits that this approach is consistent with the Board's previous interpretation and application of this Collective Agreement. For example, in OPSEU (Union Grievance) v Ontario (Ministry of Health), 1982 – 665/81 (Ont GSB) (Kennedy), the Employer transferred the grievors' duties from Toronto-based positions to Kingston-based positions. The Employer argued that no layoff occurred because it "offered" or "guaranteed" those positions to the grievors and therefore only transferred their employment. The Board held that the grievors were not required to relocate. Instead, based on the Union's argument that the positions had been abolished or a material change had occurred, the Board held […] that those employees who are scheduled to relocate in Kingston and who are unable or unwilling to relocate and who do not find positions elsewhere in the interim […] must be considered as having been released within the provisions of [the predecessor provision to section 39 of the of the Public Service of Ontario Act,2006]. The situation is correctly characterized as a layoff within the provisions of Article 24 and those employees are entitled to the contractual remedies that flow from that status. No challenge is made to the Employer's right to make the fundamental changes in the organization that are proposed but the Employer cannot escape the contractual consequences of those changes simply by categorizing them as job transfers. They constitute in substance the abolition of certain positions under the Collective Agreement and the creation of other positions. [Emphasis added.] [15] Applying the Collective Agreement language and the arbitral interpretation referred to above, the Union maintains that the layoff provisions would be meaningless if the Employer could simply unilaterally transfer employees out of their home classifications and into lower-paid classifications. Rather, the Union argues that they confirm that the parties intended for Article 20 to be triggered upon an employee's loss of work in their home classification. [16] The Union recognizes that the Employer has the right to “manage the business and direct the workforce” pursuant to the Management Rights provision in Article 2 including the assignment of duties to different positions and classifications, in accordance with the Collective Agreement. The Union also notes that the Employer has the right to “evaluate and classify positions” and that Article 7 (Pay Administration) contemplates that the Employer may “reassess” and “reclassify” positions. However, the Union distinguishes between transferring duties from one position to another versus reclassifying a position and argues that the Employer in this case chose to transfer duties from the FSA1 to OAD 10 positions rather than reclassify the position. [17] Article 7.2.1 come into play “where the duties of an employee are changed as a result of reorganization or reassignment of duties and the position is reclassified to a class with a lower maximum salary”. The Union submits that the Grievors’ duties did not change, therefore this Article would not apply in this case. Reading Article 7.3, it applies “where a position is reassessed and is reclassified to a class with a lower maximum salary”. The Union argues that since the Employer created a new and distinct OAD10 position and chose not to reclassify the regular service FSA1 positions, that Article 7.3 does not apply. Lastly, the Union states that Article 7.4 - 7 - which deals with “abolition of a position” cannot apply as the Grievors’ FSA1 positions were not abolished. [18] Whereas the Employer argues that what the Grievors are seeking is essentially that they be classified at the FSA1 position, the Union submits that it is not asking for such an order. Section 51 of the Crown Employees Collective Bargaining Act (“CECBA”) prohibits an order of the Board from requiring the creating of a “new classification or the alteration of an existing classification” or that a change “be made in the classification of an employee”. From the Union’s perspective the merits Decision determined that five vacant FSA1 positions already existed in PEOC between May 14, 2016 and November 21, 2017 and that the Employer was required to post and fill the vacancies. The Union submits that a declaration that the FSA1 vacancies would have been filled by the Grievors by November 2017 would not require the creation or alteration of a classification as the FSA1 classification and positions existed at the relevant time. Similarly, the Union argues that a declaration that the Grievors would have been laid off from their regular service FSA1 positions would not require the creation or alteration of any classifications. Employer Submissions [19] The Employer maintains that what is underlying these grievances is the Union trying to dictate what classification rate the Grievors should hold. From the Employer’s perspective, it suggests that the Grievors are seeking jobs at a classification that they feel they deserve, namely that they should be rated as FSA1 Operations Officers instead of the OAD10 Emergency Management Duty Officer positions that they currently hold. Pointing to Section 51 of CECBA, the Employer argues that what they are requesting is a change in classification for which I have no jurisdiction to remedy. In support of its argument, the Employer referred to the decision of the GSB in OPSEU (Metcalfe et al.) v. Ontario (MGS), 2012 CanLII 6212 (ON GSB) (Stephens), which affirms that the GSB has no jurisdiction to deal with classification grievances. [20] While agreeing that the natural remedy for a breach of the vacancy provisions in Article 6 of the Collective Agreement is that the Employer be required to post and fill positions, the Employer submits that it satisfied remedying the breach because as a result of restructuring, it created, posted, and filled 8 new OAD10 Duty Officer positions in January 2018, 3 of which were filled by the Grievors in June 2018 when their fixed-term contracts ended. In this regard, the Employer states that by the Grievors accepting the new Duty Officer positions, they joined the regular full-time service staffing the Duty Desk, which also had the effect of ending the cycle of fixed- term contracts. Turning to timelines, the Employer suggest that the appropriate period for assessing remedy should be from the 30-day period prior to the December 2017 filing of these grievances. In the Fall of 2017, the Employer sent the job specifications to the job evaluation branch who determined that the Duty Officer position would be an OAD10 classification. Thus, the Employer argues that the within the 30 days pre-grievance, it had already decided that it would be staffing the Duty Desk with positions at an OAD10 level and that January 2018 announcement and - 8 - posting of these new vacant positions simply confirmed what had already was in the works in terms of the reorganization and staffing. Similarly, the Employer states, in retrospect, had it been ordered to post and fill vacancies 30 days pre-grievance, it would have posted the Duty Officer OAD10 position, not the FSA1 Operations Officer role. [21] Alternatively, assuming that the Grievors would have filled the vacant FSA1 Operations Officer positions in November 2017, the Employer argues that the appropriate framework for assessing next steps with the reorganization of PEOC would have been the application of Article 7.3 of the Collective Agreement and not the layoff provisions outlined in Article 20. In this regard, the Employer emphasizes that Article 20 comes into play when staff are considered surplus due to shortage of work. As noted in the merits Decision, it was evident that the Duty Desk work continued and even increased over time. In contrast to the Union’s submission that a change in classification triggers a lay-off, the Employer argues that there is nothing in the language of Article 20 that would require the Employer to surplus its staff when changing a classification. Instead, the Employer states that when a demotion occurs due to a change in classification, employees receive salary protection under the provisions outlined in Article 7.3. [22] In support of its position, the Employer referred to the decision in OPSEU (MacIntosh) v. Ontario (MCS), GSB # 200/78 (Kennedy). In that case a grievance was brought by an employee who was demoted from a probation officer III to a probation officer II classification as a result of a reorganization and reassessment of his duties. Early in the grievor’s career he was promoted to a probation officer III level, not by way of a posting and job competition, but because a new classification was created for a number of specialized parole officers. After a number of years, an audit was done by the Ministry and it was concluded that the duties that the grievor performed were in line with a probation officer II classification. The grievor was told that his work as a probation officer III had been reassessed and that he would be reclassified down to the probation officer II level. The evidence in that case established, however, that there still remained a position of probation officer III which was known in the workplace as a Senior Probation Officer. Evidence also established that, while the probation officer III position was being phased out over time, other employees continued to work as Senior Probation Officers classified at the probation officer III rate, performing at administrative and supervisory capacity working on specific case assignments of a complex of multi-disciplinary nature. Whether or not the grievor in that case was able to perform the Senior Probation Officer duties was not a factor. The Arbitrator dismissed the grievance finding that the provisions with respect to salary protection noted in the Pay Administration provision, Article 5.4 of the Collective Agreement in effect at that time, applied. The Arbitrator found that while there had been no change in the grievor’s duties, the change reflected the assessment of the proper classification assessment of the job, (page 12). Moreover, the Arbitrator did not accept the Union’s argument in that case, that the change to the grievor’s classification triggered the layoff job security protections. - 9 - [23] The Employer also argues that the layoff provisions in Article 20 do not apply in the instant case because there was not a shortage of work. The Employer referred to the GSB decision OPSEU (Union) v. Ontario (SolGen), 2000 CanLII 20509 (ON GSB) (Leighton). as example of a scenario under which surplus notices might be given pursuant to Article 20. In that case, the Union filed a grievance alleging that the Employer violated the redeployment provisions of the Collective Agreement, including Appendix 13, in its surplussing and assignment of staff after closing 3 jails. The Union’s position was that the operation or work of the 3 jails was moved to other locations therefore triggering Appendix 13 which provided employees with the right to move with the operation or reject the move and take the rights and provisions under Article 20. The Employer argued that Appendix 13 was not triggered because it only applies when a “functioning or cohesive unit” is moved to another location (page 2). At page 6 of the Decision, the Arbitrator concluded that if there is no more work then Article 20 and all its rights are triggered and where an employer decides to move where the work will be done beyond 40 kms then the rights under Appendix 13 must apply. Decision [24] Having reviewed the submissions of the Parties, I have determined that the appropriate framework for assessing remedy, with regard to the specific facts in this case, is the salary protection provision in Article 7.3 (Pay Administration). I do not agree with the Employer that this case is about the Union’s dissatisfaction with the classification of the Emergency Management Duty Officer position or that the Union is asking me to alter or change the classification, and therefore, Section 51 of CECBA has no application in this case. Instead, what the Union is seeking is a remedy to address my finding that the Employer violated Article 6 of the Collective Agreement by failing to post and fill vacant Operations Officer FSA1 positions at PEOC. From my understanding, the Union’s position is that the Grievors should have been placed in the vacant Operation Officer FSA1 positions by November 2017 and that had they been in those regular service full-time positions, changing their positions to Duty Officer OAD 10 positions in June 2018, would have resulted in a lay-off triggering their entitlements under Article 20. While I did not make a conclusive finding in the merits Decision that the Grievors should have been placed in the vacant Operations Officer FSA1 positions between May 14, 2016 and November 21, 2017, I did remark that based on the evidence, given the Grievors skills and qualifications and seniority, it is “likely” that they would have filled the vacancies. [25] Assuming, therefore, that the Grievors would have filled the vacant Operation Officer FSA1 positions at PEOC by November 2017, the question of how to address remedy is affected by what occurred in 2018 with the creation of the new OAD10 classification for the Emergency Management Duty Officer position that assumed and continued the Duty Desk duties at PEOC. Part of the difficulty in providing direction in this case is that assumptions need to be drawn based on hypothetical circumstances. However, a remedy needs be determined in this case, whether it be - 10 - negotiated by the Parties, or ordered by the GSB, and the Parties need direction on the basis for a remedy. While I did note that it was likely that the Grievors’ would have filled the FSA1 vacancies before November 2017, there was no conclusive finding on that issue. Furthermore, it is difficult to look back and determine that the Employer, if told to post vacancies in the fall of 2017, would have made an earlier announcement of its decision to hire 8 new Emergency Management Duty Officer positions to staff the Duty Desk. In addition, while the 2019 PEOC organizational chart shows some vacant Operation Officer positions, it also shows filled Emergency Management Duty Officer positions, which on its own is not indicative of a finding that the Operation Officer positions marked vacant should be filled. [26] There are a number of reasons why I do not find that a layoff would have occurred in this case. Although Article 20 refers to a “layoff for any reason”, most of the caselaw and interpretation support a lay-off occurring as a result of a shortage of work, denial of work, or involuntary removal from the work force, which is not the case here. The undisputed evidence in this case, was that the work of the Duty Desk, continued and even increased over time resulting in the Employer increasing its hiring by creating and posting 8 Emergency Management Duty Officer positions. The decision in Western Grocers and Queensway-Carleton Hospital, supra, cited by the Union, both deal with changes in classification resulting from a lack of work. Western Grocers dealt with a group grievance filed in connection with a layoff and the consequential reassignment and transfer of workers and allocation of work. The issue in that case involved a determination of what limits were on the Employer when reducing the workforce in the warehouse in assigning the remaining work to the remaining workers in terms of a different shift, location, and classification. The Arbitrator found that in the context of a reduction of the workforce in the warehouse, the Employer would be in violation of the collective agreement if it assigned remaining workers to lower classifications or pay adversely affecting the incidents of the job. In the Queensway- Carleton Hospital, following a reorganization that involved contracting out of some lab technician testing work, a senior technologist in the Hospital’s microbiology lab was advised that her position was being reclassified to that of a junior technologist. The Arbitrator found that the reclassification was in reality, a lay- off, noting that the contracting out of the lab technician testing work was a substantial contributing factor to the elimination of the grievor’s position and her consequent “reclassification” (at paragraph 63). In essence, the Arbitrator concluded that management rights are curtailed when where there is a unilateral reduction to an employee’s classification brought about by lack of work in the employee’s existing classification. In this case the Duty Desk work was not eliminated by the reorganization of PEOC. There also was not a complete transfer of duties of the FSA1 Operations Officer positions to the OAD10 Emergency Management Duty Officer positions, as the evidence showed that the 2 employees remained in the Operation Officer FSA1 positions but were assigned work that differed from the Duty Desk duties as that work involved a higher level of project-based and administrative duties. [27] These Grievors’ circumstances also differ from other situations that arose in cases referred to by the Union where layoffs occurred but were not related to shortage of - 11 - work. For example, in OPSEU (Union Grievance) v Ontario (Ministry of Health), 1982 – 665/81 (Ont GSB) (Kennedy), a lay-off was found when the employer closed its Toronto OHIP office and opened a new OHIP office in Kingston and tried to argue that those employees who did not elect to move to Kingston effectively abandoned their positions. In that case, the arbitrator found that the work in Kingston, primarily due to the geographic location, involved new positions and concluded that the closure of the Toronto office resulted in the abolition of positions being available for those employees who wished to remain in their positions in Toronto. In contrast, in the instant case, there was not a closure of a unit or a requirement that employees make a material change to their work or work location. Reference was also made by the Union to the decision Timmins and District Hospital and OPSEU, Local 643, 2015 Carswell 4457 (Ont Arb) (Stout), in which a group grievance was filed after the employer notified staff that it would only employ employees in a pharmacy technician classification who were registered with the Ontario College of Pharmacists. The Union in that case, successfully argued that management’s decision to only employ registered pharmacy technicians resulted in a layoff for those who technicians who did not become registered. Making reference to the Supreme Court of Canada’s decision in Canada Safeway Ltd. Local 454 (1998), 160, D.L.R. (4th) (S.C.C.), the arbitrator noted that layoff in labour law refers to a denial of work to an employee, or a reduction in hours or the involuntary removal from the workforce. Applying the general layoff principles, the arbitrator concluded that the consequences of only have registered pharmacy technicians work in the pharmacy affected employees who were not registered with the College, thereby preventing them from performing work resulting in a layoff. Comparing the Grievors’ circumstances in this case, there was no change to the duties or the requirements of duties that would have resulted in a denial of work. [28] In terms of the layoff provisions in the Collective Agreement, Article 20, while preserving and protecting rights of employees to their home classifications whether through assignment, displacement or recall, the triggering language in Article 20.1.1 is clear that there must be an identification of a surplus employee and that surplus notices will be issued to those employees identified as surplus (Article 20.1.2.1). Article 20.13 provides protection, to an employee who is released from employment due to technological change. Throughout many sub-sections of Article 20, reference is also made to “where an employee’s position is declared surplus”. In essence, while there is no specific definition of what constitutes a layoff in Article 20, when the provision is read as a whole, it reasonable to conclude that a layoff is triggered by work no longer being available to an employee either because the work has been declared surplus or where work becomes redundant due to technological change. There is no definition in the Collective Agreement for what constitutes “surplus”, however, reference is made to the concept of reduction of work in Article 20.1.2.1 Surplus Notice Alert which states that “ The Surplus Notice Alert will describe the work unit, the job functions to be reduced and the number of positions to be reduced”. Applying the concept of reduction to the instant case, it cannot be concluded on the facts, that job functions were reduced or that the work associated with those job functions was reduced. Instead, the employer decided on how to - 12 - reorganize its staffing and duties to better deal with the continued increasing work at PEOC. [29] I find that Article 7.3 and its salary protection provisions apply in this case. The purpose of Article 7, in general, is to provide salary protection to employees whose jobs are affected by being placed in lower classifications when management reorganizes and assesses how it needs to staff positions. The exercise of sending the job duties to the job classification branch involved an assessment of the duties that the Grievors were performing in their work at the Duty Desk and resulted in the reclassification of that work into the Emergency Management Duty Officer OAD10 position. A similar finding applying the former Pay Administration article (5.4) which mirrors Article 7.3, was made in OPSEU (MacIntosh) v. Ontario (MCS), GSB # 200/78 (Kennedy). In that decision, the arbitrator found that the salary protection provision applied in circumstances when, after an employer audit, that the duties of a probation officer III were reclassified to a probation officer II. Although the probation officer III position continued to exist and be staffed, the arbitrator agreed that it was within management’s rights to reorganize and staff accordingly. Similar to the case at hand, the employee who was reclassified down to the lower rated classification continued to perform the same duties. The arbitrator concluded that that layoff provisions did not apply, but that the affected employee was entitled to salary protection as per the collective agreement. I find that the facts of that case similar to what occurred here in terms of review of duties and reassessment of the work and duties performed by the Grievors at the Duty Desk. Although, the Employer continued to employ 2 other employees in the FSA1 role as Operations Officers, like the need to continue higher level work performed by the senior parole officer in the MacIntosh case, supra, in PEOC there continued to be a need to fill roles related to more complex and administrative matters staffed by FSA1 Operations Officers. [30] Based on my direction that Article 7.3 is applicable to the determination of remedy in this case, I am remitting the issue of remedy back to the Parties. April 28, 2021 is scheduled for a hearing on remedy should the Parties not reach a remedial settlement. Dated at Toronto, Ontario this 13th day of April, 2021. “Dale Hewat” ________________________ Dale Hewat, Arbitrator