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HomeMy WebLinkAbout1983-0560.Peterson.85-04-29560/83 IN THE MATTER OF AN ARBITRAT.ION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between Before: For the.Grievor: Before THE GRIEVANCE SETTLEMENT BOARD For the Employer: Hearing: OPSEU (Eric Peterson) li - and - The Crown in Right of Ontario (Minis~try of Health) K. Swan Vice.Chairman H. Simon Member G: Griffin Member Terry Moore Grievor Employer Grievance Officer Ontario Publi~c Service Employees Union D. S. Nagel Staff Relations Division Civil Service Commission January,l6, 1984 DECISION .. .' This grievance came'before‘the Grievance Sett1emen.t Board w'ith'lan agreed stat,eme~nt of facts. which (,. ,. is in considerable,deta.il( 1,isting all o'f the circumstances leading up .to the situatilo,nin.which the Grievor finds himself in. That statement of facts is as"follows: lil' . The Grievance Set!lgment Board has jurisdiction in this matter. 2. The 'Collective'Agreement with respect to Working, Co.nditions land Em~ployee Benefits, signed on December 17, 198.2 and cove'ring the period from January 1, 1982 to 'December lsf 1983 was in effect ~'at al-l times relevant to this, grievance. . 3: dn Aprill29;.1974 Mr. Eric Petersen (the grievor) was.appointed~;to the civil service.as an accounts clerk (Clerk 3, General) in the Group ,Enrolment Section, OHIP, Ministry of' Health.' The grievor remained in this position untilhe was released from empldyment (laid off) under S22 (4) of the Public Service Act,.on.November 12.,,1982. 4. On November 1.9, '1981, the'grievor was 'identified .as a surplus employee and notified that his position was to be relocated to. Kingston as part of a planned relocation of OHIP offices from Toronto to.Kingston. 5. OnMay 28, 1982, the grievor wasp offered the position of Group Billing Clerk~(Clerk ~3, General) in Kingston, under Article 24.2.2 of the Collective Agreement. On May 31 I 1982 the grievorrefused this offer. 6. On September 13, 1982 the grfevor'was notified, in accordance-with Article 24.10 that he would be laid- off on November 12, 1982, unless he was assigned to a position under Article 24 prior to that date. '7. On September 15, 1982, the grievor notified the Ministry, under Arti'cle 24.8 ,of his desire to invoke his rights to displace another employee. , - 3 - a. On October 28, 1982. the grievor was assigned. under Article 24.6.1, to the position of Claims Clerk (Clerk 3. General) in the Mississauga Oistrici O.H.I.P. office. The grievor refused this assignment. 9. On November 12. 1982, the grievor was laid-off. Subsequent to his lay-off. the grievor received a refund of pension contributions made by him between 1974 and 1982 and severance pay, under Articles 52.3 and 52.4 of the Collective Agreement. In addition, coverage for the grievor under the various benefit plans was terminated. 10. On November 13, 1982, the grievor became entitled to the provisions of Article 24.14 of the Collective Agreement, for the period November 13, 1982 ,to November 12. 1983. 11. Ouring the period from November 13, 1982 to November 12. 1983, a number of vacancies occured in the Ministry . of Health, in Metropolitan Toronto, to which surplus employees were assigned in accordance with Articles 24.2.1 and 24.2.3. (As of the date of the grievor's lay-off and during the year fol.lowing there were in excess of 300 surplus employees in the Metropolitan Toronto area.) A listing of such positions with a classification of Clerk 3, General or lower within the Clerk, General series is attached. The grievor did not receive notice of these vacancies. 12. During the period from November 13. 1982 to November 12, 1983,,the grievor did receive notices of vacancy for all vacancies within the Ministry of Health for which might have been oualified and which were not filled he by 13. On 9r surplus August 1 ievance: employees assigned under Article 24.2. 5, 1983, the grievor filed the following "That t he Ministry of Health has failed to comply with Article 24.14.1 and has not notified me of vacancies for which I am qualified." Settlement Required: "That I begin to be notified for vacancies in the Ministry of Health and that my rights under Article 24.14.1 be extended for a year so that I may apply for those vacancies which occur." , 14. 15. 16. On September 7, 1983,.Mr. .R.~Os~s. Director of the HumanResources Branch, Ministry of Health, wrote to Mr. M:Sarra.; Staff Representatives for the, Union and acting on the grievor's behalf, setting out the Ministry's position on'the'grievance.' A- copy of that letter is attached. The manner in which the Employer administers the proviysions of Article 24.14.Lis as foljows: (I), Where a .vacancy is to.be filled and no surplus employee is assigned under 24.2 or where a surplus employees refused an' assi.gnment, clearance to fill 'the vacancy is givenby ,the.Civ,il Service Commission. (2) 'The Ministry.advertises the vacancy ,in accordance with Article 4. (3) A person who has been laid-off from that Ministry receives notice of all such vacancies for..a peri~od of.one year followin,g the date \ of lay-off. Notice is,, received in one of two ways. -. where the vacancy is advertised in Topical, he receives notice by way of copy of Topical. Where the vacancy is,no.t advertised in Topical, he receives notice directly from his former MinSstry. He may apply within 14 days, -i-f he wishes to do so. The.parties are agreed that the issue before the board is whether it isproper, under~ Article 24, to assign a surplus employee to a~ vacancy in accordance with 24.2, without providing a notice of the vacancy and ,the opportunity to apply therefor ~to persons such as the grievor who have been l~aid-off and who might otherwise have been entitled to notice of vacancy,under 24.14.1." The letter from Mr. R: Oss referred 'to in paragraph 1.4 of the statment of facts simply sets out the employer's position as it was presented to us at the hearing We ‘therefore find it not necessary .to reproduce t,hat letter in this award. -5- It will be obviou s from t that the provisions of the Collecti are those of the job securi ty provi he statement of facts ve Agreement here in issue sions of the Working Conditions Agreement, which are found in Article 24. Article 24 is a lenthy provision, which includes a detailed code for the treatment of employees who are rendered surplus by a shortage of work or funds, or by the abolition of the position or a material change in the organization. It will be of assistance, for the purposes of this award, to set out the provisions of Art.icle 24 to which reference will be made hereafter. The provision is as follows: i ,. - 6 - 7 - In'order to find in the grievor's favour in this case, it is necessary to find that an empioyee who has ~been laid-off ("released" in clause 24.14.1 is equivalent to a lay-off: see clause 24.16) has rights under clause 24.2.1' which are equivalent to the rights of an employee newly identified as being surplus under clause 24.1. The Union argues that employees who have been laid-off have routinely been treated by the Grievance Settlement Board as equivalent to surplus employees, that is to say employees who have been identified as surplus but have not yet been laid-off. For this proposition, the Union relies on Simard. 33/82. That case. however, does not appear on its face to deal with anything except the appropriate standard of arbitral review of employer decision on qualifications in circumstances ~where an employee advances a claim to a job pursuant to clause 24.14.1. It does not pursue the quite different question which is before us, which relates to the relative priorities and rights of employees who have been declared surplus but are still at work, and employees who have been laid- off and are, in effect. looking for a way back into Public Service employment through the provisions of clause 24.14.1. The Employer argued that the answer to this grievance lies in an analysis of article 24. That article provides, in great detai who is identif 24.2.1, 24.2.2 by the Collect - a - , ;for a sequentia~l approach to an employee ed as surplus to his position; Clauses and 24.2.3 are the initial response required ve Agreement. Each of th,ese clauses provides that an employee "shall~ be assigned on the basis of his seniority" and none of these provisions has any element of competition as between the surplus employee'and any other person. The only tests to be met by the employee is a threshold test, whether he is qualified to perform the work. If assignment under these provisions is not possible, the employee is to be laid-off. Clause 24.6.1 then provides a detailed code for bumping by the employee subject to lay-off over another employee with less seniority. This clause, 1'ike the pro- visions of clauses 24.2.1, 24.2.2, an,d 24.2.3, does not contemplate any competition with such other employees, and relies solely on seniority. Once again, the test of whether or not a surplus employee.is entitled to bump is whether that employee is "qualified to perform the work." Where no relief is possible'under this provision, clause 24.7 provides that the'employee shall be laid-off, subject to certain entitlements to notice and like matters. \ It is instructive that, after these two procedures are described in great detail, the Collective Agreement - 9. - provides in clause 24.13 that the terms of article 4, relating to ,the posting and filling of,vacancies or new posit~ions,d,o:not apply to the assignment of surplus employees in accordance with.this article. That provision appears immediately before,clause 24.,14.1, which is ,the pro.vision under which the grievor advances his own claim to'be considered for vacancies. fan obvious, inference. _ from this placement is.that .the provis,ions ,of, article 4 s apply to vacanc.i,es when ,it i,s, not ,nece,ssary to as,sign su,rplus employees.. Indeed, that.appears to have been the decision of the Gri-evance Settlement Board Eco,tt, 62B/BO. On page 17 of that case, the majority says: "As for the argument that~the..competition should have been restricted, seems to be based on the assumption that the words "other. employee" in 24.14.1 means ot,her employee who has been declared surplus. .We do not think that the language will bear that interpretation. Rather, it refers to any other employee, in its ordinary significance. If the parties intended it to mean "any oth~er surplus employee" it would hav,e been a simple matter to say so in plain words. It follows that.the employer was entitled to consider the merits of both surplus employees and certain emplo,yees in the Bargaining Unit." Once again, this decision uses the words -",su'rplus employeetOto describe someone who has ,been laid o'ff. We cannot think, however; that very much can be made of that unfortunate choice of-words:.It is obvious from the award that the Board found that,,once an.employee. was covered ,by clause 24.14.1. that employee'would. be required to . enter fhe competition with.other employees and apply for - 10 - the job, although the compensation would not be based upon the criteria set out in article 4, since there are special criteria set out in clause 24.14.1. Indeed, the language of clause 24.14.1, which requires that the notice of the vacancy be forwarded to the employee at least 14 days prior to its being filled, appears to contemplate the possibility that the vacancy will have been posted either at the same time as notice has been given to the employee, or shortly thereafter. In any event, the important factor is that the clause does contemplate a competition for the position, since clause 24.14.1 (b) requires the comparison of the qualifications of the laid-off employee and any other employee who applies. As we view clause 24.14.1. in light of the established jurisprudence of the Board in Ecott, once an employee is laid-off, his right to seek appointment to a vacancy is a right subject to competitionfrom all other employees, who will have applied under provisions of article 4, but based on the special criteria of clause 24.14.1 (b). That those criteria are different is obvious from the comparison of the words "similar qualifiations and a greater length of continuing service" in that clause, with the words "where qualifications and ability are relatively equal, length of continuous service shall be a consideration" in clause 4.3. The parties have - 11 - clearly given~ a contractual advantage t,o an employee who applies fora .vacancy under clause.24.14,.1 over an employee who applies for a vacancy under.article 4, but that adv.antage does not conclude.the issue which isbefore us.. . . . In the present case, the complaint is that the griever's rights 'to positions which be'came.vacant were,not.considered either in priority to or concurrent with the rights of,employees who had subsequently been identified as. surplus. In our view, this.does not offend the agreement: As,,we have already pointed out, the provisions of clauses 24.2.1, 24.2.2,and 24.2.3 do,not contemplate a,nY competition whatsoever; once the, position becomes vacan.t, the surplus employee must be considered for that vacancy,~and the test -of .whether he'is.to be appointed tom that vacancy .is whether he possesses the basic qualifications., Similarly, that employee then becomes eligible to exercise~his seniority rights through bumping pursuant to clause 24.6.1, where once again the only test of his right to .bump another employee is the threshoJd. test of the basic qualifications to perform the work of that employee. It will be observed that bumping rights are the second level of relief for employees newly declared surpJus;. Employees who have already been through the proc,edure and have been~ laid-off have~no such rights after - 12 - ~. . lay-off. It would seem unusual. therefore, if employees newly declared surplus had to compete with laid-off employees I for vacancies to which they may be assigned under clauses 24.2.1, 24.2.2 or 24.2.3, but did not need to compete with anyone when exercising bumping rights. In other words, we think that the employer's view of the article,is correct, that it creates sequential rights for employees whose jobs have become redundant in three stages. The third stage, and therefore the lowest in priority, is the one under which the grievor now claims. The mandatory nature of clauses 24.2.1. 24.2.2 and 24.2.3 appears to be aimed at avoiding any break in employment, as is the fall-back position in clauses 24.6.1 for bumping rights. Once.the lay-off has actually occurred, as it did in the case of the grievor, the employee (or former employee) is relegated to the third category of rights, which are subordinate to the first two categories and are also subject to competition from employees who might apply for the same vacancy pursuant to article 4. as has already been decided by the Grievance Settlement Board in the Ecott case. In the result, we do not think that the employer has offended the collective agreement in its application of article 24 in the case of the grievor. As a consequence, . . . - 13 - therefore, the grievance -must bk dismissed., I:( Dated ai T,oronto,t.his 29th day.of' 'April, '1985. / - YAi- K.jSwan, Vice. Cilpirman, ,,. ? : .: . cg =q+ G. Griffin;.Member .’ \ - - ” 1 J . L . I regret that I must dissent from my colleagues in this case. In accordance with Article 24 of the Collective Agreement a surplus employee with more than one year of continuous service has the option of bumping or being laid off. The Grievor opted for being laid off. Article 24.14 reads: "Where an Employee who has had at least one (1) year of continuous service is released and his former position or another position for which he is qualified becomes vacant in his Ministry within one (1) year after release, notice of the vacancy shall be forwarded to the Employee at least fourteen (14) days prior to it being filled and he shall be appointed to the vacancy if: (a) tky;pC;es therefor within fourteen (14) (b) No other Employee who has similar qualifications and a greater length of continuous service applies." In my view the language here is clear and unambiguous. Furthermore, there is no'definition in this Article of "surplus employees"; all references are to Employees. He must therefore conclude that all Employees with at least one year of continuous service who are released are entitled to the same treatment. The Grievor was laid off on November 12th. 1982. Between the date of his lay-off and the date of the grievance on August 15th. 1983 there were a number of vacancies in the Ministry of Health in Metropolitan Toronto. In my view the Grievor was entitled to receive notice of these vacancies, and I would so find. I would also extend the GrieVOr’S rights to apply for vacancies for a year from the date of the Release of this award. I I- , -1