GSB #0972/99
OPSEU#99B835
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Thompson)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Economic Development, Trade and Tourism)
Employer
BEFORE Owen V. Gray Vice Chair
FOR THE Don Martin
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE Fateh Salim
EMPLOYER Counsel, Legal Services Branch
Management Board Secretariat
HEARING September 7 and November 2, 2000.
DECISION
1The grievor is an International Market Consultant with Ontario Exports Inc. (“OEI”), the Ontario government’s international trade agency. OEI provides support for Ontario companies wishing to do business outside Canada. It underwent a reorganization in May 1999. Prior to the reorganization, the grievor’s assigned duties related to markets in South East Asia. In the course of the reorganization he was reassigned to duties relating to markets in the Americas. Although this involved no change in his IDO3 job classification and, hence, no change in pay or benefits, he regarded the new duties as less desirable and prestigious than his former duties. He grieved that this treatment constituted discrimination on the basis of age, contrary to Article 3 of the collective agreement.
2Prior to the reorganization, OEI had four branches each headed by a Director reporting to the President. There was a branch for the Americas, one for Asia Pacific (hereafter referred to as the “Asia” branch), one for Europe, the Middle East and Africa (hereafter referred to as the “Europe” branch), and one for Export Marketing & Analysis. After the reorganization there were 5 branches. There was still a branch for the Americas, with a greater number of IDO3 staff than formerly. The Asia branch was combined with the Europe branch to form a new International Markets branch headed by the former Director of the Asia branch. The number of IDO3 staff in this combined branch was to be smaller than the total number of such staff in the predecessor branches. The former Director of the Europe branch was to head a new International Capital Projects branch with one IDO3 reporting to him. The head of each of these three branches is a Vice-President reporting to the President. The former Export Marketing and Analysis branch was divided into two branches: a Marketing & Communications branch and an Export Analysis & Services branch, each headed by a Manager reporting to the President.
3Valerie Fountain is the Vice-President of the International Markets branch, and former Director of the Asia branch in which the grievor was employed prior to the reorganization. She testified that in response to an earlier task-force study, EOI’s President made certain decisions as to way the organization should be restructured. He determined that the branches should be realigned as I have described. He also determined the number of staff positions in each branch. His direction to Ms. Fountain was that the new International Branch was to have 13 staff including herself and two administrative assistant positions. He also directed that the branch was to have two Export Consultant positions at the IDO1 level (the predecessor branches had had one IDO1 position each), leaving 8 positions for International Marketing Consultants at the IDO3 level.
4This represented a decrease of 3 IDO3 positions when compared with the staffing levels in the predecessor Asia and Europe branches. One of those 3 IDO3 positions was vacant at the time of the reorganization. The new IDO3 position in the new Capital Projects branch was filled by an IDO3 from the former Asia Pacific branch. The net effect of all this was that the predecessor Asia and Europe branches had one more employee at the IDO3 level than the new International Markets branch could take. The Americas branch, on the other hand, had two more IDO3 positions than it had had prior to the reorganization.
5Ms. Fountain testified without contradiction that the demand from Ontario companies for assistance in Asia had declined significantly as a result of the cooling of the economies in that region. Given the staffing level she had been allotted, she decided to reduce the number of IDO3’s assigned to the Asia Pacific region by 3, reduce the number of IDO3’s assigned to Europe, Middle East and Africa by one and create a new IDO3 position focusing on International Financial Institutions. One IDO1 Export Consultant would be assigned to the territory former covered by the Asia branch, and one to the territory former covered by the Europe branch.
6In late April and early May, 1999, Ms. Fountain met with each of the staff in the Europe and Asia branches individually to describe and explain the reorganization and find out if they had any input or preferences with respect to duties in the new organization. Of the 6 IDO3’s in the former Asia branch, one was ultimately assigned to the vacant Europe position. As I have already noted, another expressed interest in and was selected for the one position in the new International Capital Projects branch under Mr. Wahba, the former Director of the Europe branch. The grievor had expressed interest in that work, but was not selected by Mr. Wahba. The grievor’s primary interest was in continuing the Asia work he had been doing. The same was true for the other 3 Asia IDO3’s in the former Asia branch. There were only 3 Asia positions for IDO3’s. One of these 4 IDO3’s had to be moved to the Americas branch. Some time after his meeting with Ms. Fountain, the grievor was told that he would be reassigned to the Americas branch.
7Responsibility for the Asian countries that the grievor had previously covered was divided up between the 3 IDO3’s who remained in the Asia team of the International Markets branch. Those IDO3’s were aged 48, 46 and 43 at the time. The grievor was 59. While all three are younger than the grievor, two had more seniority than he did. One of the projects that the grievor had been working on before the reassignment involved arrangements with Canada House in Singapore concerning a virtual trade mission, that is, a trade mission conducted by means of video conference facilities. After the reassignment, the project of arranging virtual trade missions in Asia was assigned to Trevor McPherson, the IDO1 on the Asia Team. Mr. MacPherson was then aged 27. The grievor perceived that the balance of the actual work he had been performing prior to the reassignment was carried on thereafter by Laurie DeSousa and Pamela Kanter, the two Asia Team IDO3’s who had more seniority than the grievor. The grievor was not the oldest employee in the branches from which the International Markets branch was formed. Terry Gain, an IDO3 two years older than the grievor, was retained in that branch.
8The grievor testified that during the meeting he had with her prior to his reassignment, Ms. Fountain said that she had to bring younger people along because older people would be leaving. He says she told him that in making assignments to positions she would be giving preference to younger people. Ms. Fountain denies this. I shall return to that dispute after noting some contextual matters on which the union relies.
9The union argues that I should prefer the grievor’s evidence, and find that age was a consideration in management’s decision-making, because of two admitted facts. One is that around this time the employer adopted the policies contained in a document entitled “Building Tomorrow’s Workforce Today.” The following appears at pages 23 and 24 of that document:
revitalizing the OPS
While the OPS needs mature and experienced public administrators to provide stability, we also need younger employees with the potential to grow into positions of responsibility as the workforce continues to age. Understanding the workforce we have and the workforce we need helps to focus our revitalization initiatives to ensure an effective public service into the future.
The HR Strategy promotes a multi‑faceted approach to revitalizing an aging OPS workforce and management cadre and addressing skills gaps and shortages in key areas of work. OPS revitalization includes youth recruitment and succession management.
Corporate and ministry revitalization strategies and youth plans will be consistent with government directions and applicable HR policies and practices, including equal opportunity.
youth recruitment
Youth recruitment emphasizes attracting young individuals with up‑to‑date skills and knowledge to work in occupational areas where skills shortages exist or are anticipated due to retirement and mobility factors. Plans for youth recruitment include:
establishing an Ontario Internship Program (see next section) focused on skills shortage areas identified corporately and by ministries;
focusing co‑op student and ministry internship programs on skills shortage areas in ministries and in specific occupational groups; and
incorporating ministry‑specific youth plans into human resources plans.
succession management
Succession management links individual potential with organizational needs to ensure the development of a future generation of public administrators and skilled professional staff.
Over time, the HR Strategy will encourage succession management outside the senior management group, including:
providing OPS‑wide learning and development opportunities to ensure a future generation of specialists, project and line managers, and senior managers;
developing and implementing ministry succession plans, including career‑broadening assignments and developmental opportunities for employees; and
enhancing the professional cadre and building a future management feeder group by hiring skilled interns and fostering their development.
ministry responsibilities for revitalization
Ministries are expected to include revitalization strategies and youth plans in annual HR plans.
Ministry youth plans will consider:
career‑broadening assignments and developmental opportunities;
ministry internship programs for specialized skill areas;
placements for students in university and college co‑op programs; and
partnerships with organizations promoting youth employment.
resources and supports for ministries and managers
To assist ministries to implement revitalization strategies and youth plans, MBS will provide:
central administration of the Ontario Internship Program;
advice on best practices in youth recruitment and retention;
a guide to best practices in succession management; and
reduced barriers to external recruitment.
10The other admitted fact on which the union relies in support of its claim that the grievor is a victim of age discrimination is that the employer published the following article in the supplement to Topical that announced the new HR Strategy:
Taking a youthful approach to recruitment: Ontario Exports
Ontario Exports Inc. has taken a page out of the new Human Resources Strategy for the OPS by developing a youth recruitment strategy of its own.
OEI — part of the Ministry of Economic Development, Trade and Tourism —recently hired five young people for new positions in international trade and exports.
“It made a lot of sense to try and build up our core human resources and to bring in young, energetic people,” said Len Crispino, OEI’s President and CEO. “Using our employee services branch as a business partner, we’ve been able to strengthen our resources and bring in a new, fresh perspective to the work we do.” It’s an approach aligned with the HR Strategy for the OPS, called Building Tomorrow’s Workforce Today, which encourages investment in staff learning and development, as well as ministry efforts to incorporate youth strategies into their HR plans. Less than five per cent of OPS employees are under the age of 30.
“This is exactly the kind of approach we are looking for,” says Art Daniels, assistant deputy minister with the OPS Restructuring Secretariat. “We need to revitalize the OPS and I’m pleased with the program undertaken at Ontario Exports Inc.”
The new recruits have been involved in important and high‑profile assignments, from working on trade missions to helping launch new programs and working directly with senior staff and corporate partners.
“My position has provided me with a great opportunity to learn from the experience of senior staff, while also being encouraged to introduce new ideas and initiatives,” said Danielle Prpich, 29, a graduate of the University of Victoria and Sheridan College’s postgraduate international business program. She has been working on missions, ministerial trips and trade shows with the Asia Pacific branch,
The other fresh faces at OEI’s Toronto offices are:
Paula Morrison, a graduate of the University of Western Ontario and U.S. International University’s international relations graduate studies.
Maria lafano, a graduate of the University of Toronto and the Norman Patterson School of International Affairs’ master’s program.
Trevor McPherson, from Queen’s University and the international business studies program at Seneca College.
Kelly Duffy, a graduate of the University of Guelph and Sheridan College’s international business studies program.
Dan Burns, deputy minister at MEDTT gave his stamp of approval to OEI’s mix of youth and more experienced employees.
“We can point to OEI’s program as a successful model that goes a long way to showing young people that the OPS is a vibrant organization and that the govern careers and long‑term employment,” he said.
11The union does not attack the new HR Strategy in this proceeding. The union’s argument about it is to the effect that the policy created a climate in which there was a concern to favour youth, a climate in which it was likely that this would be done by management even to the extent of depriving older workers of opportunities in order to make them available to younger workers. The article, it says, shows that management at OEI had a concern to favour youth at the time of the decisions in issue here, and the remarks that the grievor attributes to Ms. Fountain are consistent with her having adopted that concern.
12Ms. Fountain denies having said that she would be preferring younger workers. She testified that notes she made a couple of hours after her meeting with the grievor reflect the substance of their discussion. In those notes she recorded having said that she would be looking for a balanced mix of people, skills experience and attitude, that there were positive people as well as negative and cynical people, and that she would try hard to balance these personalities to attempt to get a balanced team. According to her notes she also said that while no one would lose their job in the organization, some staff would be transferred to meet the domestic demands and programs the organization was committed to undertake.
13Ms. Fountain testified that the decision to reassign the grievor to the Americas branch was made by a management committee of which she was part. She was firm that age was not a factor in that decision. She observed that there had been no new hiring in her branch, adding that the President had, as she put it, “assigned two junior staff to my branch.” She explained that when she used the word “junior” in that answer she was referring to the job classification of their positions, not their age, and that when that direction was given and discussed she and the President would have used the term “IDO1”, not “junior.”
14It seems most unlikely that the remark that the grievor attributes to Ms. Fountain would have been made by a manager as intelligent as she obviously is if she were aware of the impropriety of favouring one employee over another on the basis of age at the time she is alleged to have made it. The grievor testified that he did not respond to the alleged remark by suggesting to Ms. Fountain that there was anything inappropriate about it, nor by complaining about it to anyone else that day. Thus, if Ms. Fountain was unaware of the impropriety of such a remark at the time she allegedly made it, there seems no reason why she would have become aware of the impropriety before she made her notes of the discussion a couple of hours later. There would be no reason, therefore, for her to have excluded reference to it from those otherwise fairly detailed notes. Accordingly, the absence from those notes of anything approximating what the grievor alleges Ms. Fountain said corroborates her denial that she said it.
15It may be that in the days between the meeting and his first allegation of this impropriety the grievor came to believe that Ms. Fountain had said what he claims. Some use by her of the word “junior,” for example, might have transformed in his mind as events unfolded during that period. Whether or not he truly believes she did, however, I find on a balance of probabilities that Ms. Fountain did not make the remark that he says she made. While she did not give a detailed explanation during examination-in-chief of the considerations that led to the decision that the grievor would be the one reassigned, she was not pressed during cross-examination to provide such an explanation. It was not put to her that there was no reason, apart from his age, for selecting the grievor to be the one reassigned. I can only suppose that cross-examination in that area was avoided advisedly. In any event, I accept Ms. Fountain’s testimony that age was not a factor in any decision in which she participated, including the decision that the grievor would be the IDO3 who would be reassigned from international to “Americas” or domestic duties in order to meet the staffing levels set by the President.
16There remains the question whether, as the union also argued, the President’s decision to maintain the number of IDO1’s assigned to international duties while reducing the number of IDO3’s so assigned constituted a form of age discrimination of which the grievor was ultimately the victim.
17There is a tendency for those in “junior” job classifications to be younger than those in higher job classifications, all other things being equal. There is, likewise, a tendency for employees to acquire knowledge, experience and seniority (in terms of credit for service) as they age. It does not necessarily follow that basing decisions on experience, knowledge, seniority or a combination of these amounts to discrimination on the basis of age. Likewise, I am not persuaded that a decision to reduce the number of higher classification positions assigned to a particular area while maintaining the number of lower classification positions in that area amounts per se to discrimination on the basis of age.
18I have considered whether the added context provided by the HR Policy with its references to youth and youth plans and the article referring to the “youthful approach” in the earlier recruitment of the IDO1’s at EOI lends greater significance to the fact that the President’s decision increased the amount of IDO1 employment as a percentage of the total in the area to be covered by the International Markets branch. In other words, in that context did that fact establish a prima facie case of age discrimination that must now succeed by reason of the employer’s failure to demonstrate affirmatively that there was a non-discriminatory basis for the impugned decision of OEI’s President? I have concluded that it did not. The HR Policy does not promote or of necessity require discriminatory treatment of existing employees, and the article about OEI’s young recruits provides no direct evidence of such discrimination. Even with the addition of this context to the fact of the President’s decision about the mix of IDO1’s and IDO3’s in OEI’s International Markets branch, the assertion the decision amounted to or effected discrimination on the basis of age suffers from the same shortcoming as it would in the examples offered in the previous passage. The connection with age is simply not direct enough in the circumstances.
19This grievance is therefore dismissed.
Dated at Toronto, this 20th day of November, 2000.