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HomeMy WebLinkAbout1983-0460.Doyle-Marshall.83-10-20:. 460183 Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (William Doyle-Marshall) - And - The Crown in Right of Ontario (Ministry of Industry and ' Trade) Grievor Employer Before: J.W. 'Samuels Vice Chairman T. Traves Member P. Coupey Member For the Grievor: N. Luczay Grievance Officer Ontario Public Service Employees Union For the Employer: R. Itenson Senior Staff Relations Officer Management Board of Cabinet Hearing: October 7, 19S3 . : - 2.-----. .- Introduction On June 17, 1983, the grievor,who was then employed in the Accounts Section of the Ministry's Finance and Systems Branch, was given a Notice of I :: Surplus Status: This is to advise you that in the process of reorganizing the Accounts Section to meet the requirements of both the Ministry of Industry and Trade and the Ministry of Tourism and Recreation, it has become clear that we do not need a clerical typist position. For this reason, your position will be abollshed ettective August 17, 19B3, and you are hereby notified of your surplus status in accordance with Article 24.1 of the Collective Agreement with respect to Working Conditions. (Emphasis added) On June 22, the grievor filed his grievance: I grieve that the notice of surplus status received June 17, 1983 is incorrectly applied to me. Preliminary Objection: Arbitrability At the outset of our hearing, the Ministry argued that this Board did not have jurisdiction to hear the matter because the grievor had been "released" pursuant to the authority of the Deputy Minister under section 22(4) of the Public Service Act, which provides: A deputy minister may release from employment in accordance with the regulations any public servant where he considers it necessary by reason of shortage of work or funds or the abolition of a position or other material change jn organi- zation. In Insanally, 7/83, this Board refused to overturn a manifestly poor decision to release a probationary employee under section 22(5) of the Public Service Act, and reviewed thoroughly the authorities on the question of the power of an administrative tribunal to review such decisions. Section 22(5) provides: A deputy minister may release from employment any public servant during the first year of his employment for failure to meet the requirements of his position. -3- It does seem to be settled law that this Board does. not have the power to review a decision by the Deputy Minister to "release" an employee during the first year of his employment. However, the situation with respect to section 22(4) is somewhat different. It is open to this Board to make the preliminary enquiry of whether or not the Deputy Minister's decision was truly an exercise of the power given to him in section 22(4) of the Public Service Act. We do not lose our jurisdiction merely because the action was characterized as a "release" under section 22(4). This point is made clearly in Varin, 496/82, where the grievor was released under section 22(4) because he was considered not suitable for the work of a Correctional Officer. This Board decided thatthis was not properly a release under section 22(4) because none of the four specific conditions existed for the exercise of the Deputy Minister's auth.ority. There had to be one of - a shortage of work, - a shortage of funds, - the abolition of a position, or - some other material change in organization. Therefore, at the hearing; we ruled that we would hear evidence and argument on the issue of whether or not the griever's terminationof employment was indeed a “release” under section 22(4). It should also be said that section Z(4) permits the Deputy Minister to release any public servant if one of the aforementioned four conditions exists, but the selection of which employee is to be released must be done according to Article 24.1 of the Collective Agreement, which provides: -4- * Where a lay-off may occur by reason of shortage of work or funds or the abolition of a position or other material change in organization, the identification of a surplus employee in an administrative district or unit, institution or other such work area and the subsequent assignment, ~displacement or lay-off shall be in accordance with seniority subject to the conditions set out in this Article. In other words, the Deputy Minister cannot override seniority in effecting the reduction of the work force under section 22(4). In sum, with respect to the preliminary objection, it is open to this Board to undertake a limited review of the release of an employee by the Deputy Minister under section 22(4) of the Public Service Act to ensure at least that a. the decision was based in fact on - a shortage of work, - a shortage of funds, - the abolition of a position, or - some other material change in organization; and b. the identification of the surplus employee to be laid off was made according to seniority, pursuant to Article 24.1 of the Collective Agreement. Our Situation The grievor joined the government service in December 1980 as a Clerk Typist 3 in the then Ministry of Culture and Recreation. There is some dispute between the parties concerning his job description in this Ministry, but it is not disputed that he was properly classified, a very significant part of his job involved typing, and he worked in the accounts payable area of the Finance and Administration Division. “.‘i I _ :~: ‘ri ,.. .:::: i. .._ -’ 5 - ’ In the spring of 1982, the Government of Ontario announced that it was creating a new Ministry of Tourism and Recreation. This would affect the then Ministries of "Culture and Recreation" and "Industry and Tourism". The former would become the Ministry of Citizenship and Culture, and the latter the Ministry of Industry and Trade. The new Ministry of Tourism and Recreation would not have an administrative services branch, but would be serviced by other ministries. In the fall of 1982, it was determined that the Ministry of Industry and Trade would provide the financial services for the new ministry. This was implemented in April 1983, when five employees (one of whom was the grievor) moved from,the now Citizenship and Culture to Industry and Trade, along with their budgetted salaries and their staff complement allocation. Very soon after this move, the grievor was told that there was really no work for him as a clerk typist, but he was taught to do some accounts payable work and computer input jobs that would occupy his time for a while. It would appear that he did several tasks found in the job description of the Data Entry/ Technician and Control Clerk (Position Code 03-8100-28, classified as a Data Processing Technician III),,and over half of the duties and responsibilities found. in the job description of the Accounts Payable Clerk (Position Code 03-8100-19, classified as a Clerk 3 General). In fact, because of the workload in the Personnel Branch of the Ministry of Industry and Trade, the griever's position was never classified before he was terminated., On organization charts produced during his time with the Ministry, his job title was shown as "Clerk Typist:', and his classification was shown as "Clerk Typist 3" (and he was paid as such). But these entries on the organizationchart appear to have been mere verbiage to complete the chart, and were not based on an actual classification of the grievor's position. .,. _ -6- When the tasks the grievor was doing in his early time with the Ministry came to an end--in particular, the input into the computer of the names of all the vendors and grantees paid by the Ministry--it was decided that his services were no longer necessary and the Notice of Surplus Status was issued. Argument of the Union On behalf of the grievor, Mr. Luczay argued that the grievor never did have a "clerical typist position" which could be abolished, because his position in the Ministry of Industry and Trade was never classified. The grievor was given work to do and there was still work to do for the grievor. This work is still being done by the Data Entry/Technician and Control Clerk, and the Accounts Payable Clerk. Conclusion The Ministry abolished a position here which did not exist formally. This is a practice which could well be used to cover a "dismissal" for other reasons. The grievor was in a sort of limbo during his time with the Ministry, and it would have been possible perhaps for the Ministry to dismiss him by calling this action a "release" #pursuant to the Deputy Minister's power to release an employee whose position is abolished. Article 24.1 of the Collective Agreement provides that, where there is a layoff by reason of, inter alia, the abolition of a position, the identification of the surplus employee shall be in accordance with seniority. If the grievor should have been classified as an Accounts Payable Clerk (with the same duties and responsibilities of Position Code 03-8100-19). then the reduction in work force should have been characterized as the abolition of one of the Accounts Payable Clerk positions, and the grievor would have had the right to remain in his job if another Accounts Payable,Clerk was less senior to - 7 - him. In our case, the Ministry said that it was abolishing a "clerical typist position", yet there was no such position in a formal sense. However, by characterizing the griever's position as a "clerical typist", the Ministry then made it obvious that it would be the grievor who was identified as the surplus employee, because he was the only clerical typist in the branch. Such a practice could lead to abuse. If the Ministry had wanted to "get rid" of the grievor while his "position" was still not formally classified, it could try to do so by abolishing his "position", and define the "position" in such a way that only the grievor would fit the bill as the surplus employee. After consideration of the evidence in this case, we have concluded that there is no proof of such an abuse here. The griever's "position" was not yet classified. But he was not a Data Entry/Technician and Control Clerk, nor was he fully an Accounts Payable Clerk. Unhappily, it does appear.that when the five employees moved from the Ministry of Citizenship and Culture to Industry and Trade, the grievor became a fish out of water. He was a skilled typist, and there was no need for a typist in the Accounts Section of the Finance and Systems Branch. He was given some work to do, and he did have a "position". His position never did get classified, but at least it does appear that it was not the same job as anyone else in the branch. Therefore, it was open to the Deputy Minister to abolish the grievorls position, and we can accept that the position might be called the "clerical typist position" in the Notice of Surplus Status, for want of any more precise term, given that the position had not yet been formally classified. Having made this determination, this Board has exhausted its jurisdiction in the matter. We find that the Deputy Minister did release the grievor because .- -8- his position was abolished, and the identi f employee is in conformity with Article 24. 1 ication of the grievor as the surplus of the Collective Agreement. Finally, we heard no evidence or substantial argument that the griever's rights under Articles 24.2.1, 24.2.2 and 24.2.3 were violated. Under these provisions, the grievor was entitled to be assigned to other jobs within the government service, within certain limitations. It would appear that no such job came available while the grievor was still in the Ministry's employ. For all of these reasons, the grievance is dismissed. Done at London. Ontario, this out '0 day of 0~6 , 1983. T. Traves, Member P.H. Coupey, Member _ .._-- --~.. t - - ,. -9- List of Exhibits 1.~ Grievan:ce-Form 2. Memorandum of June 17, 1983 3. Job Specification, 03-8100-19 4. Idem, 03-8100-28 5. Organization Charts 6. Position Specification, Clerk Typist