Loading...
HomeMy WebLinkAbout2013-1446.Union-Young et al.21-04-14 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 “Appendix A to the ASF” 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-Young 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 April 8, 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 eight grievors in various positions in the Ministry of the Attorney General. Each of the grievors applied for TEI before they retired from the Ontario Public Service (“OPS”), however, their requests were not approved by the Employer. [3] The parties submitted the following Agreed Statement of Facts: 1. A number of employees in various positions employed by the Ministry of the Attorney General (the “Ministry”) working in a number of institutions/workplaces applied for TEI between January 2013 to December 2018 (the “TEI Applications”). 2. There were approximately seventy-two (72) individual applicants who filed grievances. 3. The Ministry did not approve any of the TEI Applications in relation to the above noted grievances. 4. The Union forwarded grievances between January 2013 and December 2018 on behalf of the above-noted employees whose TEI applications were not granted (the “TEI Grievances”). 5. 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. 6. This Agreed Statement of Fact addresses only 8 of the approximately 72 grievances filed. Appendix A lists the 8 employee names and classification levels. 7. It would be the Ministry’s 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 required continued resource support and the exit of the above noted applicants would not support the transformation of the Ontario Public Service. The Employer provided documentary evidence to support the fact - 3 - that the respective positions were filled following the exit of the above noted applicants. The Union does not have evidence to the contrary. 8. Each of the employees listed in Appendix A retired after their TEI application was filed. For all employees listed in Appendix A, their TEI applications remained pending while they were employees. a. Karen Fukushima applied for TEI on March 12, 2013 and retired on July 31, 2013. It would be the Ministry’s evidence that the position of Court Clerk and Registrar (Position #00050838) at 1805 East Arthur St., Thunder Bay was filled on December 16, 2013 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be that the OPS communicated in March 2010 and March 2013 that it was intending to downsize and further that her understanding is that because factor 80 was no longer in the CA the TEI was a big factor in acceptance of the CA during that round of bargaining. Also, by allowing the RFT to retire under TEI it could allow the Employer to convert FXT employees to RFT employees. According to the Grievor, at the time three court houses in Thunder Bay were going to be consolidated into 1 courthouse which could result in a reorganization and downsizing. The new Courthouse would have state of the art technology which could also potentially allow for downsizing of staff. Finally, the grievor would say that a vacant CSR position was eliminated or surplussed in February 2014. The Grievor claims that this should have allowed for her to receive the TEI and the Employer denial was bad faith and/or arbitrary as the above indicia did not support the failure to grant TEI to the Grievor. b. Elizabeth Britton applied for TEI on May 1, 2013 and retired on September 13, 2013. It would be the Ministry’s evidence that the position of Bookkeeper (Position #00045783) at 75 Mulcaster St., Barrie was filled on October 28, 2013 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be that at the time of her request she had 39 years of dedicated service. She wanted an exit date of June 28, 2013. The grievor would say that MAG had been downsizing or trying to downsize since 2010. The Employer would disagree this statement, and that it was the OPS overall that had committed to downsizing in 2010 – it will say that MAG had made no specific commitments it that regard. In a letter dated August 16, 2013 the grievor was advised that once she retired her TEI application would not be considered. The Grievor claims that the fact that the Employer did not grant her TEI so close to retirement is a form of age discrimination as the Grievor believes the denial was in part due to the fact that the Employer knew she was retiring therefore did not consider the TEI for her. In addition, the Grievor claims that while she was denied others were granted without explanation or reason why. She claims that she received different treatment by being denied. The Employer is unaware of who the Grievor is referring to or what workplace/positions she is referencing. Furthermore, the Employer states that the Grievor was a Bookeeper and her position was filled following her retirement. The Employer further states that only two TEIs were approved at the Grievor’s workplace – an Administrative Assistant and a Scheduling Court Record Clerk – both approved in April of 2013. c. Linda Tompkins applied for TEI on August 2, 2013 and retired on January 31, 2014. It would be the Ministry’s evidence that the Grievor’s position of Court Clerk - 4 - and Registrar (Position # 00045253) at 279 Wellington St., Kingston was filled on June 23, 2014 and continues to be required. The union does not have evidence to the contrary. Three employees at the Grievor’s workplace were approved for TEI – none of their positions were regular full-time such as the Grievor, as they were all FPT (flexible part time) positions. The Grievor was advised that V.C. spoke to C.B., who is another grievor that worked in the Kingston family Court, about TEI applications. C.B. advised this grievor that V.C. advised C.B. that the door to applying for TEI was closing and not to worry about her application as she would not let anything happen to it. The grievor left MAG on a long term sick leave on or about March 2013. On November 4, 2013 the Grievor turned 65 years of age so her LTIP/STSP ceased. In August 2013 she applied for the TEI and VEO. She was denied both. She attended the GSB in and around September 2015. The Grievor’s evidence would be that she was offered a VEO settlement/award which was put on hold pending the TEI grievance. The grievor was advised that contract employees filled her role until approximately June 2014. The Grievor was advised that V.B, a FXT employee at the time, assumed another Full-Time position and did not stay in the grievor's position. The grievor is advised that her position has been filled by Part Time contract staff for a lengthy period of time. The Grievor believes her Full Time position had not been filled on a Full Time basis. The Employer disagrees and states that it’s evidence would be that V.B. was a FXT employee working in the Grievor’s position while the Grievor was on sick leave, and V.B. then competed for and became the permanent employee in the Grievor’s former position effective June 23, 2014. d. Lynn Murray applied for TEI on March 27, 2013 and retired on June 19, 2015. It would be the Ministry’s evidence that the position of Client Services Representative (Position #00046203) at 45 Main St. East, Hamilton was filled on July 13, 2015 and continues to be required. The union does not have evidence to the contrary. e. Bonita Roszell applied for TEI on September 26, 2013 and retired on May 30, 2015. It would be the Ministry’s evidence that the position of Client Services Representative (Position # 00046148) at 74 Woolwich St, Guelph was filled on October 26, 2015 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be in June, 2013 she was approached by her Supervisor, Michelle Kester wanting to know what date the grievor was anticipating taking the TEI. The Grievor had previously made it known that she was interested in taking advantage of the TEI. Ms. Kester advised the Grievor that she was in the process of doing her budget for 2014 and needed to know the Grievor’s anticipated exit date. The Grievor’s evidence would be that this supported that her direct supervisor believed that she met the requirements for the TEI. The Grievor provided a hard copy of her application on September 16, 2013. She later emailed an amended application as she had entered the incorrect year on the original. As the Grievor did not hear from the Employer with a decision she made inquiries through Stephanie Wagner regarding who the HR person would be that could assist. She was provided the name of Mary Giroux. The Grievor made contact with Ms. Giroux who directed her to contact her Manager. The Grievor then received a letter from Mr. Langlois advising that the Court was in transition and could not grant her request for TEI at the present time but that her application would be held for future consideration. The Grievor provided an exit date of 1 year from her actual retirement date. She was advised that this exit date was not granted as her application had not been granted. - 5 - Shortly after not being approved for the TEI she was provided job postings for the VEO in Toronto and Newmarket areas. According to the Grievor, this supported that transition in the Ministry was occurring. The Ministry was granting VEO’s in the court system but refusing the TEI. The intention of the VEO job postings was to provide surplussed OPS employees an opportunity to assume the posted position. The Grievor claims that this supports that the decision to not approve her specifically was, in part, arbitrary and in bad faith and that she was being treated differently than employees being offered the VEO. The Grievor experienced stress as well as health problems associated with the denial of the TEI which affected her home life, working with colleagues and the performance of her job. The Grievor would give evidence that she gave every effort to the Ministry for over 23 years, rarely claiming for overtime, and performed many duties over and above her job description. She believed that it was time for the Ministry to give back to her with the TEI. f. Beverley Whittingham applied for TEI on October 21, 2014 and retired on December 31, 2014. It would be the Ministry’s evidence that the position of Client Services Representative (Position #00044925) at 59 Church St., St. Catharines was filled on March 23, 2015 and continues to be required. The union does not have evidence to the contrary. The Grievor states that following her retirement all the estate work for which she was responsible was initially dispersed to three other employees in St. Catharines, and was later transferred to the Welland Court House. The Grievor takes the position that as a result of this transfer of work, her position and job responsibilities were eliminated and therefore ought to have been approved for TEI. It is the Employer’s evidence that the Grievor’s position was filled and continued to be required. g. Elaine Young applied for TEI on November 21, 2014 and retired on October 30, 2015. It would be the Ministry’s evidence that the position of Client Services Representative (Position #00047550) at Superior Court of Justice Hamilton was filled on March 14, 2016 and continues to be required. The union does not have evidence to the contrary. The Grievor will say as follows: 1. Ms. Young was an active OPSEU member. She was a Local rep as well as a member of the bargaining team; 2. She was a member of the bargaining team for the CA with a term of January 1, 2013 to December 31, 2014. This CA contained the original Appendix 46 – TEI dated January 24, 2013; 3. She was a member of the bargaining team for the CA with a term of January 1, 2015 to December 31, 2017. This CA contained a revised Appendix 46 – TEI dated October 30, 2015; 4. The revised Appendix 46 changed para 2 to include the word “sole” discretion. It also added iii) consideration whether employees are on the TEI list when making surplus decisions; 5. It also contained other changes; 6. As a member of the bargaining team, Ms. Young was privy to the discussions around the language introduction and change; 7. Ms. Young was aware that management was encouraging employees to apply for TEI through the various Ministries. The bargaining team was provided a report dated September 23, 2014 that identified 221 requests for - 6 - TEI from MAG employees with an approval rate of 55 for a total of less than 24%; 8. At the time Management was creating and pushing for the new role of CCR. It combined the CSR and CC positions into one role. This was resulting in staff reductions and cost savings for MAG; 9. Ms. Young initially applied with a stated date to exit. She was advised to not include an exit date. She re-submitted the application without an exit date. At the time she was on the bargaining team; 10. She retired as a result of the change to retiree benefit plans; 11. Ms. Young took Union leave to participate in bargaining on or about September 29, 2014. She retired at the end of October 2015. The Employer document shows a termination date of October 31, 2015; 12. Her position was posted in and around December 2015; 13. The position was awarded to A.M. on March 14, 2016. A.M. was on maternity leave at the time. The position was filled on a temporary basis by A.L. on or about June 6, 2016. According to the Grievor, her position was vacant and not filled for a period of approximately 20 months. It is the Grievor’s view that the Employer did not see a need to fill her position for that length of time; 14. Additionally, A.L. left the position shortly after and the position remained vacant for a period of time again with no operational need to fill it; 15. As a Local rep, the Grievor was aware that other employees were granted the TEI. This included L.L.. L.L. was a Court Clerk. There is a very significant turn over for Court Clerks and the Ministry was/is always recruiting for Court Clerks. There is an ongoing need for CC’s. Another employee that received the TEI was D.P., a CSR in probating estates. D.P. was replaced. D.P. trained her replacement prior to taking the TEI. This supports an arbitrary application of the Employer discretion for MAG TEI approval; The Ministry’s evidence will be that the Grievor’s position was awarded to A.M. on March 14, 2016. A.M. was on maternity leave at the time. The position was filled on a temporary basis by A.L. from June 6, 2016 until September, 2016 when it was filled on a temporary basis by M.C. until A.M. returned to the position from her maternity leave. A.M. continued to hold the Grievor’s position for several years after the Grievor retired. With respect to the TEIs referenced in paragraph 15 above, the Employer’s evidence is that both TEIs were granted in 2019. As well, it would be the Employer’s evidence that D.P.’s position was not filled following her exit from the OPS. The Grievor is adament that D.P.’s position was filled by M.M. The Employer’s evidence is that M.M. assumed a different position number than that of D.P.’s. h. Lynn Roy applied for TEI on December 1, 2014 and retired on May 31, 2016. It would be the Ministry’s evidence that the position of Client Services Representative (Position #00046206) at 45 Main St. East, Hamilton was filled on June 6, 2016 and continued to be required. The union does not have evidence to the contrary. The Grievor claims that while she was denied entitlement to the TEI others were granted entitlement in 2019 and some of those employees granted were replaced in their positions. The Employer’s evidence is that their positions were not replaced. Only one TEI application was approved at the Grievor’s work location between 2013 and 2016 – one Trial Coordinator in the Grievor’s - 7 - workplace was approved for TEI in November of 2013. The Grievor claims that the Employer was “picking and choosing” who would be granted entitlement. The Grievor’s factor 90 date was May 30, 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 amended: 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 [amended to in its “sole” discretion, October 30, 2015]. 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 lists when making surplus decisions [added to revised Memorandum of Agreement, October 30, 2015]. - 8 - 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 [amended, October 30, 2015]. Analysis [5] I have now issued several decisions on the scope of the Employer’s discretion to allow or deny a request for TEI: Koeslag et al., issued January 12, 2016, Vadera, June 28, 2018, Kimmel, November 29, 2018, Anich, August 9, 2019, Klonowski et al, November 7, 2019, Fairley et al., February 12, 2020, Alcock et al., March 2, 2020, Bowman et al., March 9, 2020, Cullen et al., June 15, 2020, Koriscil et al., June 18, 2020 and Heath et al., March 3, 2021. [6] 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. Absent 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. Similarly, the approval of subsequent requests does not warrant an automatic conclusion that the decision to deny an earlier request was arbitrary or unreasonable. - 10 - Inevitably, timing matters. A different outcome may result from the timing of an employee’s request for TEI: Heath, supra. [7] I would add that, regardless of the amendment to Appendix 46 that permits the Employer to make a decision in its sole discretion, I have already determined that it has a very broad discretion to determine when and whether to grant a TEI. [8] After careful consideration of the submissions made by the parties, I have applied the principles established in earlier cases to the facts that pertain to these grievors and determined that the Employer properly exercised its discretion when it considered their requests to exit under the TEI. The grievances are therefore dismissed. Dated at Toronto, Ontario this 14th day of April, 2021. “Reva Devins” Reva Devins, Arbitrator - 11 - “Appendix A to the ASF” 1. Fukushima, Karen - 08OAD Office Administration 08 2. Britton, Elizabeth - 08OAD Office Administration 08 3. Tompkins, Linda - 08OAD Office Administration 08 4. Murray, Lynn - 08OAD Office Administration 08 5. Roszell, Bonita - 08OAD Office Administration 08 6. Whittingham, Beverley - 08OAD Office Administration 08 7. Young, Elaine - 08OAD Office Administration 08 8. Roy, Lynn - 08OAD Office Administration 08 9. Kramer, Christine - 08OAD Office Administration 08 10. Clark, Josephine - 09OAD Office Administration 09 11. Vicere Zamai, Sylvia - 08OAD Office Administration 08 12. Marjorie Skorich - 09OAD Office Administration 09 13. Linda Bemben - 11OAD Office Administration 11