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HomeMy WebLinkAbout1985-1614.Mitchell and Union.86-11-24IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (P. Mitchell and Union Grievance) - and - The Crown in Right of Ontario (Ministry of Government Serivces) Before: For the Grievor: For the Employer: Hearing: J. W. Samuels~ Vice-Chairman T. Traves Member D. A. Wallace Member M. Cornish, Counsel Cornish and Associates Barristers and Solicitors J. Baker, Counsel Hicks Morley Hamilton Stewart Storie Ba,rristers and Solicitors October 8, 1986 1614/85 and 1615/85 Grievor 2 We started the day on October 8, 1986 with three grievances before ‘US. Brlefly, they ari.Se from the fOIlOWIng circumstances. Pamela ,~ Mitchel,i had been an employee of the Crown since February 8, 197 1. In 1984, she went off work on long-term income protection, but inearly September 1985, 1 t was decided by the lnSUrer that the benef I ts ceased as of July 22, 1985. Pursuant to Article 41. IO, she was now a surplus employee and was to be treated as provided in Article 24. On September I I 1985, the Deputy Minister wrote to her to tell her that her LTIP benefits had ceased effective July 22, and that she was now identified as surplus. He went on: During the next tvo months, every effort will be made to -find you’alternative employment elsewhere in this Ministry or the Ontario Publk Service, in accordance with Article 41.10 of the ~ Collective Agreement between Management Board of Cabinet and’ ‘the Ontario Public Service Employees’ Union and it will only be if these efforts ,fail that you will be released’on November 6, 1985. The Personnel Services Branch will be contacting you to offer assistance and counsel in job search and interview techniques, the preparation of resumes and applitations, and with~any immediate personal concerns which you.might have. So she had untll November 6, 1985 to be placed. The Union did not get a copy of this letter. She was sent to several interviews, and was told briefly she could ‘bump’ into a job. The interviews did not result in an assignment, and she did not displace any other employee. Therefore, she was laid off on November 6 as scheduled. On January 23, 1986, Pamela Mitchell flied two grievances: that I have been denied my rights as set out in Article 24 and Article 41 of the Collective Agreement with respect to Working Conditions and Employee Benefits but not exclusively. :,.’ : ’ -, in 3 that I have been dlsmtsed rrom employment without just cause. : And on February 3, 1986,~ the Union grieved: that the MinIstry of Government Services has violated several articles of the Collective Agreement with respect to Working Conditions and Employee Benefits. The violations arise as a result of the contravention of Article 24 and Article 41 of the Collective Agreement but not C~ exclusively. These vidlations include non- compliance with Article 24.10 of the Collective Agreement. The above arlses as a result of, but not llmited to, the ctrcumstances and treatment afforded to Mrs. Pamela Mitchell by.the Ministry of GovernFent Servic,es with respect to her employment status, wherby (. sic) Mrs. Mitchell ‘. wds releked’from employment from her position ~of Clerk I I I ,General at I7 I Judson Street, Toronto, Ontario. In essence, there are really only two issues before this Board. The first is whether the employer violated Article 24 of the collective c agreement, which governs the treatment of sur$us employees, wtien MS. Mitchell was such an employee in the fall of 1985. This issue flows from the two individual grievances. The second issue is whether the employer violated Article 24.10 by failing to give the Union notice of ‘the impending lay-offs of Pamela Mitchell (in September 1985) and Ronald High (in January 1986). This issue flows from the Union’s grievance. At the outset of our hearing, the Ministry argued that all of these grievances were too late, and therefore inarbitrable. With respect to the Individual grievances, Article 27.2.1 provides that the employee ‘who believes he has a complaint or a difference’ shall raise it with his supervisdr ‘within twenty (20) days of first becomina aware of the 1 comolaint or difference- (emphasis added). 4 And In the case of union grievances, Article 27.8.1 provides for the filing of.a grievance ‘within (30) days followina the occurrence or gn. This Board has recently had OCCaSlOi to interpret thls prOWOn. In Ibzan, f595/&5 (dated July 3 I, 1986), the Board held that the time runs from the date of the violation of the collective agreement, whether or not the Union knows of the violation at the time. We heard evidence concerning the filing of the three grievances. Before tuning to thls evtdence, it would be useful to explain briefly what are the rights of a surplus employee under Article 24. Firstly, there are certain rights to be assigned to vacant positions on the basis of senlorfty wlthout competltlon. The employer must asslgn the surplus employee to a vacancy if the employee is able to perform the work and the salary is not greater than 3%. above or 20% below the maximum salary of hisclassification --in.the same minist~, within a 40 kilometre radius of his headquarters (Article 24.2.1). or --with mutual consent, in’the same’ministry, beyond a 40 kilometre radius of his headquarters, or --where nelther of the above possibilities has materialized, ln another ministry within a 40 kilometre radius of his headquarters (Article 24.2.3). Secondly, there are displacement rights. ,Article 24.6: I provides for. the right to displace another employee who is identified by the employer Pursuant to a complex procedure set out In the article. There are no monetary constraints on the position so identified:Therefore, if a surplus employee chooses to exercise his right of displacement (and Articles 24.8 says that this must be done not later than two weeks in advance of his date of lay-off), he could wind up in a mucn lower-paying job. Thus, a surplus employee must make some difficult decisions during the period before lay-off ---either to go for the job security of .' ., 5 displacement, with the risk of a much lower-paying job, or to hope f0r.a higher-paying position, but risk getting no assignment at all. With this background, we turn to the circumstances of the filing of the three grievances. Ms:Mitchell had been of,f on LTlP.because of depression. When she learned in September I985 that the LTIP benefits had ceased, she was Still easily disturbed by traumatic circumstances such as the prospect of soon losing the employment she had had since 1971. There is little doubt in our mfnds that she was not aware independently of her rights under Article 24 of the collective agreement. In September 1985, she met with Ms. J. Watson, the Ministry’s Personnel Administrator, who told her that she would be declared surplus, would be eligible for jobs for which she met the mlnimum qualifications, would be laid off if not placed within.8 weeks, and that she ‘had bumping rights’. According to Ms. Watson, it was hot a very detailed discussion, and she simply said “you have bumping rights’. The griever does not recall betng told that she could displace another employee, The griever was not referred to the collective agreement or to the Union And that was it, except for ,. several calls to the grievor to tell her of interviews to be attended. At the end of October 1985, she met withf’ls. I. Thomas of the Civil Service Commission (now called the Human Resources Secretariat), who explained how the surplus program works (salary and geographic parameters) and mentioned displacement rights in general terms. Ms. .’ Thomas told us that displacement is the Ministry’s responsibility and she does not go into any details on It. The grievor does not remember being told about her displacement rights. The grievor did not know where to turn for help when she was told in early September that she would be declared surplus. SOme time thereafter she went to her MPP, Ms. D. M. Marland, and ultimately in early November, correspondence passed between Ms. Marland and the Minister, Ms. E. Caplan. ..’ ‘, 6 Shortly before her lay-off, she went for an interview at OHIP, and in the elevator met an old acquaintance who, upon learning the grievor’s situation, told her to go to the Union. The grievor recalled that he had been tnVOlVed with the Union in the past. She actually made contact with Mr. 0. Stewart, the Union’s job security grievance officer, in the second week of January 1986. It was the first he knew of her plight. And the grievances were filed shortly after this meeting. Now, wtth respect to the timeliness of the indlvldual grievances, Article 27.2.1 establishes a time limit which does not begin to run until the employee first becomes aware of the complaint or difference. And the words “complafnt or difference’ refer to ‘complalnts or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement’ (Article 27.1). In other words; the time does not begin to iun unti! the employee is aware that there is a complaint or, difference under the collective aareement. Her complaint or difference in this sense is not being declared surplus, or being laid off, but her feeling that she has not been treated according to the collective agreement. While we have some hesitation concerning the grievor’s awareness of her rights under the collective~agreement, on balance we flnd that,, bearing in mind --her emotional state at the time, --the complication of the surplus procedures under Article 24, --the brief explanation of these procedures that she was given, --the fact that she wasn’t In the workplace throughout the~period, to benefit from the advice of friends, --the failure of the Ministry to explain fully to her the possibility and consequences of displacement (she needed to know the potential financial consequencesinordertochoose todisplaceanother employee rather than wait for an assignment to a vacant POSitiOn), i. she was not aware that she had a complatnt or dtfference Until she met with Mr. Stewart in the second week of January 1986. And the grievances were filed within 20 days of this meeting.’ Therefore, the individual grievances are ln time. With respect to the Union grievance, it is clearly in time fOlIOWing the failure of the Ministry to give the Union notice of the impending lay-off of Ronald High. Following the decision of this Board in Union, /S&/85, referred to above, the Union’s grievance would be too late if it concerned only the failure of the Mfnistry to’send a copy of the September I I lay-off notice to Pamela Mitchell. In its grievance, the Union asked as the ‘settlement desired’ that we order the MInIstry to declare that thelr actions were COntraty to the collective agreement, and that the Ministry make full:restitution to Pamela Mitchell. The latter~request simply duplicatesMs. Mitchell’s individual grievances and is therefore’unnecessary. With respect to the first request, Artic1.e 24.10 requires the employer to send a copy of the notice of -. impendjng lay-off to the Union. The evidence at our hearing showed Clearly that the Ministry failed to give the Union a copy of the lay-off notice to Pamela Mitchell and it was agreed that the Union did not get a copy of the notice to‘Ronald High. This Is of serious concern to the Union because the Union offers.help to surplus employees, and this assistance is triggered by the notice of impending lay-off. Without a copy of the notice, and unless the employee goes to the Union, the Union will not have the opportunity to offer its help. The Ministry violated Article 24.10 of the colledtive agreement. We hope that hereinafter the Ministry will take care to give the Union notice of impending lay-off of surplus employees, so that ,the Union can provide its services effectively to bargaining-unit members. Thls should dlSpOSe of the’unlon’s grfevance. ‘With respect to the two individual grievances, the OneyieVing unjust dismissal simply duplicates the one alleging a violation of Article 24, and therefore can be ignored. “. . . _‘, c we are left then with Ms. Mitchell’s indfvidual grievance alleging a violation, of Article 24. In preparation for. the hearing, the Union asked the Board to issue a summ?ns to Ms. N. Nakvar; Manager of Staff h?g Servlce&, In the Mlnlstry’s Human Resources Divisjan, requesting that she produce the following: 1. All documents and policy manuals pertaining to Ministry of Government Services procedures for dealing with employees on sick leave and on LTIP, employees returning to work from LTIP and -the assignment of surplus employees to bargaining unit positions; 2.~. All docunients setting out the vacancies withinthe Ministry of Government Services and any other Ministry to which the grievor was entitled to consideration in accordance with article 41.10 and article 24 during the period July 22, 1985 to February 3, 1986 and notwithstanding the ~geqerality of the foregoing, all Clerk 3 General.and Clerk 2,General vacancies, and all vacancies for payroll clerks and a seniority list of all employees filling Clerk 2 and Clerk 3 General positions. 3. A list of all employees in the Minist,ry of Government Servics with lesser seniority than the grievor whom the grievor was entitled to consideration to displace in accordance with article 24.6.1 of the collective agreement. Notwithstanding thC generality .of the foregoing, the list should particularly include all (a) employees within the Clerk 3, Clerk 2 and Clerk 1 classification; (b) payroll clerks; and (c) a list of all employees who were in fact' identified by the employer in accordance w;th article 24.6.1. The above information should include name, DCS, position title, position code and location for the period of July 22, 1985 until February 3, 1986. 4. ,'Copies of all job posting documentation, Position Specification and Class Allocation Forms for the i$yons and employees referred to in paragraphs 2 ‘I (’ .: : i i. 5. The entire contents of all personnel files of the griever. Notwithstanding the generality of the foregoing, this should include: (al (b) (cl (d) (el All documents, notes, memoranda or correspondence pertaining to her sick leave, LTIP entitlement incuding,all medical documentation or reports; Any documents, notes, memoranda or correspondence relating to grievors' allegations~ of sexual harassment for the period from 1980 to 1985; Any employer documents, notes, memoranda or correspondence setting out the reasons for declaring the grievor to be surplus effective July 22, 1985; All documents, notes, memoranda or correspondence detailing the Ministry's efforts to ,place her pursuant. to, the collective agreement, on the termination of her LTIP benefits Andy up to February 3, 1986,. including' any notices unde,r article 24.14;1. All documents, notes, memoranda or correspondence between the Ministry of Government Services, the Minister Responsible for Management Board, The Honourable Elinor Caplan and the grievor's MPP, Margaret Marland. It ds not necessary for the Ministry to produce this mountain of material. In ordertd bring this case into manageable proportions, we suggest that the parties take the following action before we reconvene in order to determine whether we must reconvene at all, and if we do, to determine precisely what will be the focus of our enquiry: --the Ministry should identify the employee whom the grikvor could ‘have’displaced under Article 24.6.1 as of two weeks before November 6, 1986, 9 T. Traves, Member D. A Wallace, Member 1 10 --the Union should consider the propriety of the emplOyer’S decisions not to assign the grievor to the jobs for which she was interviewed, and perhaps identify several other vacancies to which the grlevor might have been assigned, and that this could be done in cooperation with the ministries involved without too great an’ inconvenience to either party. Done at London, Ontario, this 24th day of November , 1986.