CITATION: The Society of Energy Professionals v. Ontario Power Generation Inc., 2015 ONSC 7101

DIVISIONAL COURT FILE NO.: 567/14

DATE: 2015-11-18

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: the society of energy professionals v. ontario power generation inc.

BEFORE: Justices Swinton, J. Mackinnon and D.L. Corbett

COUNSEL: Michael D. Wright and Elichai Shaffir, for the Applicant Brett Christen and Giovanna Di Sauro, for the Respondent

HEARD AT TORONTO: November 16, 2015

ENDORSEMENT

Swinton J.

[1] The Society of Energy Professionals (“the Society”) seeks judicial review of an arbitration award dated July 14, 2014 that determined two policy grievances.

[2] In June 2011, OPG advised the Society that it intended to implement the Nuclear Resourcing Policy (“NRP”) for Society-represented employees at its four nuclear sites east of Toronto. Under the NRP, OPG management assesses its work needs for the four sites approximately three times a year to determine whether OPG’s needs can be met by reassigning employees within the same classification to other positions at the same site. If work needs can be met by reallocating employees in the job classification to available work, employees are reassigned. If work needs cannot be met by reallocation of employees in the job classification, OPG may determine there is a vacancy. If so, the vacancy must be posted in accordance with article 65.6.1, which states:

65.6.1 All vacancies for assignments which do not fall into the category of relief or rotations shall be advertised OPG-wide unless there is agreement with the Society Local Vice President or the following conditions apply…

[3] Before the arbitrator, the Society argued that reassignments that resulted in a change to the majority of an employee’s duties, pay grade or hours of work violated articles 64B (non-surplus redeployment) and 65 (job posting) in the collective agreement.

[4] The arbitrator held that the collective agreement did not limit OPG’s management rights to reassign employees to available work within their job classification at a work headquarters. In particular, the arbitrator found that assignments pursuant to the NRP did not violate the job posting provisions in article 65 of the collective agreement.

[5] The standard of review of the arbitrator’s award is reasonableness, as he was interpreting the parties’ collective agreement (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 14.)

[6] In interpreting article 65.6.1, the arbitrator relied on longstanding arbitral jurisprudence that has held that employers are entitled to assign employees to different work within the same job classification absent an express restriction on their management rights in the collective agreement. He also stated that the parties’ collective agreement and the workplace structure categorize employees in job classifications and not particular work or positions within a given classification (Award at para. 35). He examined the language of article 65.6.1, which deals with the posting of “all vacancies for assignments”, and concluded that the provision does not state that “where an employee’s assignment is changed, the position must be advertised” (Award, para. 36).

[7] The arbitrator also took into account the purpose of article 65, noting that it is not only “to provide open, fair access to career opportunities” (as the Society emphasizes), but also to “enable OPG to optimize staffing requirements over time” (Award, at para. 17).

[8] The arbitrator considered other provisions of the collective agreement, such as article 65.5.2 dealing with the posting of certain rotations within the bargaining unit. He held that the posting provision for certain temporary rotations does not apply to the permanent assignment of an employee to different work within the same classification. The applicant argues that this leads to an absurdity: there are posting requirements for temporary reassignment of duties and yet none for permanent reassignment of those same duties. I see no absurdity: temporary placements are opportunities for, in effect, trial placements that may give employees an opportunity for later permanent advancement. Treating them differently from permanent reassignments within the same job classification is consistent with such a purpose.

[9] The arbitrator held that the NRP did not violate article 64B (non-surplus deployment) of the collective agreement, because that article addressed the redeployment of employees to a different work headquarters or a lower rated position and not to the assignment of work to employees within their job classification or the posting of vacancies for assignments (Award, paras. 25-26).

[10] The arbitrator also noted that article 105.5 provides an exception to the process set out in article 64B for the movement of employees in the same classification between headquarters in Nuclear East.

[11] The arbitrator ultimately concluded that the “OPG does not breach Article 65 when it chooses not to declare a vacancy in a particular position within a job classification and decides instead to assign or reassign the work or position to another employee working in the same classification and work site” (Award, para. 40).

[12] The arbitrator distinguished the case of Brant Haldimand Norfolk Catholic District School Board and Ontario Secondary School Teachers’ Federation (2014), 245 L.A.C. (4th) 302 (Hayes), because of the express limitation on management’s right to assign employees to positions within their classification found in the collective agreement in Haldimand. That collective agreement recognized the right of the senior employee to obtain employment in a position that became available within the employee’s specific job classification.

[13] There is no equivalent provision in the present collective agreement. Moreover, the posting provision that requires that the best qualified applicant be chosen for the vacancy sets out a criterion for selection, not a restriction on management’s right to reassign duties to an employee that fall within the employee’s classification.

[14] The Society also argues that the arbitrator made an unreasonable decision with respect to the posting of vacancies because he allowed part of the grievance, determining that OPG must give details about the specific assignment(s) that are posted and cannot make a generic posting related to a classification. However, the arbitrator based that part of his decision on the wording of the posting provisions and the concern for fairness to job applicants, who should know in advance the requirements of a particular position so that they can decide whether to apply and can prepare adequately for a job competition (Award, paras. 43-44).

[15] The Society argues that the arbitrator’s interpretation leads to an absurd result because a person could be successful in a job competition, being the best qualified, and then be reassigned immediately. However, the interpretation of the arbitrator does not lead to an absurd result. If such a hypothetical transfer were to occur, the employee could bring an individual grievance arguing that OPG has acted arbitrarily, discriminatorily or in bad faith in exercising its management rights. To the date of the arbitration, there had been no grievances with respect to reassignments under the NRP.

[16] In my view, the arbitrator’s interpretation of article 65.6.1 falls within a range of reasonable outcomes. He gave clear and logical reasons for his conclusion and, in reaching his decision, he followed the established arbitral jurisprudence and considered the collective agreement as a whole. Accordingly, the application for judicial review is dismissed. Costs to OPG are fixed at $7,500 all inclusive, an amount agreed upon by the parties.

Swinton J.

J. Mackinnon J.

D.L. Corbett J.

DATE: November 18, 2015