Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Health), 2000 CanLII 20543

OPSEU #

Under

Before

BETWEEN

Ontario Public Service Employees Union

(Union Grievance)

Grievor

and -

The Crown in Right of Ontario

(Ministry of Health)

Employer

BEFORE Richard Brown Vice Chair

FOR THE GRIEVOR D. Wright Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors

FOR THE EMPLOYER David Strang Counsel, Legal Services Branch Management Board Secretariat

HEARING January 24, 2000

This grievance is brought by the union on behalf of paramedics formerly employed by an ambulance service operated by the Ministry of Health in the Niagara region. The union claims they are entitled to enhanced severance pay and pay in lieu of notice under Appendix 18 of the 1999-2001 collective agreement.

By virtue of amendments to the Ambulance Act, responsibility for the provision of ambulance services in the area recently passed from the Ministry of Health to the Regional Municipality of Niagara. The legislation permits the regional government either to operate the service or to contract with a service provider. The region elected to do the latter, invited bids and awarded a five-year contract to Hotel Dieu Hospital in St. Catherines.

The ministry then negotiated with the hospital a memorandum of agreement relating to human resource matters, dated December 6, 1999. This agreement requires the hospital to hire all paramedics previously employed by the province. The rate of pay specified in the agreement is 100% of former earnings for paramedic 1 and paramedic 2 and at least 85% for group leaders. In fact, all paramedics previously employed by the ministry were hired by the hospital, and others were hired “off the street”. Paramedics working at the hospital receive “virtually 100%” of the compensation paid by the ministry.

As to service and seniority, paragraph 5 of the memorandum of agreement states:

Credit will be given for full service and seniority, subject to any limitations incorporated in the receiving employer’s collective agreement.

As paramedics at Hotel Dieu fall within the service and clerical bargaining unit, the relevant agreement is the service and clerical agreement between the hospital and Canadian Union of Public Employees. It was amended to recognize service and seniority acquired in the Ontario public service (OPS) with only one exception. Paramedics cannot utilize such seniority to bump into a job outside the paramedic group in the event of a layoff.

No witnesses were called to give testimony at the hearing. A copy of the memorandum of agreement was entered in evidence and counsel helpfully provided an uncontested summary of other relevant facts and the applicable portions of the Ambulance Act.

I

The union’s first argument is that this transfer falls under Schedule D of Appendix 18. Employees affected by such a transfer are entitled to the surplus payments claimed in this grievance, because they are deemed by section 7.1 to have been surplussed:

In respect to all other dispositions or transfers of bargaining unit jobs or functions involving transfers not included in Schedule A, B and C, occurring during the term of this Agreement, affected employees will be surplussed as a result of the transfer or disposition subject to the terms of the collective agreement. The date of the issuance of the surplus notice will be determined by the Employer.

In the case of employees displaced by a Schedule D transfer, the province has no obligation to make reasonable efforts to obtain jobs with the new service provider.

According to the employer, this transfer belongs on Schedule B. Under that schedule, the province must make reasonable efforts to obtain jobs with the new employer. An employee who declines a job offer is entitled to the payments claimed in this grievance only if the offer does not meet the standard found in section 6.6. The application of that standard to the facts at hand is considered in the last two parts of this decision.

Union counsel contends Schedule B does not apply in the instant case because section 6.1.1 contemplates negotiations with “the receiving employer” in relation to a schedule B transfer, and because there is no “receiving employer” within the meaning of section 1.0:

Receiving Employer - Any public or private sector Employer who has been designated in legislation or who is selected in another manner by the Crown to deliver services which were formerly delivered by Civil Servants.

Counsel argues Hotel Dieu Hospital does not meet this definition because it was selected by the region rather than being designated by legislation or selected by the Crown.

Turning to Schedule D, union counsel contends a transfer may come under this schedule because it belongs to either of two categories: the first comprised of transfers placed on the schedule at the option of the province where less than eleven full-time jobs are affected; and the second comprised of transfers not included on any other schedule. As to the existence of the second category, counsel relies upon the opening words of section 7.1 which bear repetition:

In respect to all other dispositions or transfers of bargaining unit jobs or functions involving transfers not included in Schedule A, B and C ...

Union counsel concedes this transfer does not belong to the first category because it affects far more than eleven people and the ministry has not elected to place it on Schedule D. Counsel contends the transfer belongs to the second category of Schedule D transfers, as not being governed by any other schedule. The union’s argument that the transfer does not fall under Schedule B already has been noted. It is common ground that neither Schedule A nor Schedule C apply.

Counsel for the employer submits the only transfers governed by

Schedule D are those which affect less than eleven employees and which have been placed on this schedule by the province.

In the alternative, employer counsel contends this transfer does not belong on Schedule D because it is “included” on Schedule B within the meaning of the opening words of section 7.1. Here counsel relies upon the list found in Appendix 18 allocating certain types of transfer to specific schedules. “MOH Land Ambulance” appears under Schedule B on this list. Employer counsel asserts the parties negotiated this list fully aware land ambulance services might be transferred to either a municipality or a contractor selected by a municipality. Union counsel did not dispute this assertion.

Counsel for the employer also contends Hotel Dieu Hospital is a receiving employer within the meaning of section 1.0 in the sense that it was chosen by the municipality pursuant to a power conferred by legislation.

In response to the employer’s argument about the list allocating types of transfers to schedules, union counsel urges me to read “MOH Land Ambulance” to encompass only those transfers of ambulance services where the responsible municipality decides to be the service provider rather than to contract with another party as occurred in this case.

Employer counsel notes the union’s argument about Schedule D is a double-edged sword. In the present case, it cuts in favour of the affected employees by allowing them to collect surplus benefits. While the argument means the ministry would not be obliged to help them obtain jobs with Hotel Dieu Hospital, they had little need of such assistance, given the state of the job market for paramedics. However, the same argument applied in future cases would mean other employees, unable to secure jobs on their own, would be entitled to no assistance from the province on this front. They would be left with surplus benefits but without employment. Counsel for the union conceded his argument would help some employees and hurt others.

II

In my view, this transfer belongs on Schedule B by virtue of the list in Appendix 18 placing land ambulance transfers on that schedule. The list draws no distinctions between a transfer to a municipality, which itself becomes a service provider, and a transfer, via a municipality, to a contractor such as Hotel Dieu Hospital. The list was constructed by negotiators who knew, or reasonably should have known, either type of transfer might occur. The wording of the list and the context in which it was negotiated lead me to conclude the parties to the collective agreement have determined any transfer of land ambulance services falls under Schedule B.

I conclude Hotel Dieu Hospital is a “receiving employer” within the meaning of section 1.0, because the hospital was chosen through a process set out in the Ambulance Act. In other words, I read the words “designated by legislation” in section 1.0 to include a designation made pursuant to a process determined by legislation.

I reject the narrower reading of “receiving employer” advanced by the union. This interpretation would exclude not only a contractor chosen by a municipality but also any municipality which itself provides ambulance service. When a municipality delivers services, it does so because it decided not to utilize a contractor, not because the municipality is ‘designated in legislation or .. is selected in any other manner by the Crown to deliver services” (emphasis added) within the meaning of section 1.0. Accordingly, even a municipal service provider would not be a “receiving employer” on the union’s interpretation. This reading would remove all ambulance transfers from Schedule B, a result clearly inconsistent with the list placing such transfers on that schedule.

III

Arguing in the alternative, the union claims paramedics affected by the transfer are entitled to surplus benefits even if it belongs on Schedule B. According to this schedule, such benefits are payable if an employee declines an offer of a job on terms and conditions which fall below the standard specified. Counsel for the employer does not contend the employees concerned are not entitled to surplus benefits because they actually accepted the jobs offered by Hotel Dieu. The grievance was filed before the job offers were taken up, but the hearing was adjourned on consent and on the understanding employees would not be prejudiced by the delay. To avoid any prejudice, the employer does not rely upon the subsequent acceptance of offers.

The standard which determines whether a job may be refused without losing a claim to surplus benefits is found in the first sentence of section 6.6:

Where the salary of the job offered by the receiving employer is less than eighty-five percent (85%) of the employee’s current weekly salary, or if the employee’s service or seniority are not carried over to the receiving employer, the employee may decline the offer. In such a case, the employee may exercise the rights prescribed by Article 20 (Employment Stability) and/or paragraphs 2 to 5 of Appendix 9. The employee must elect whether or not to accept employment with the receiving employer within three (3) days of receiving an offer. In default of election, the employee shall be deemed to have accepted the offer. (emphasis added)

The issue between the parties relates to seniority. The parties agree that section 6.6 speaks to seniority being carried over for the particular purpose of layoff. Indeed, sections 6.1.1 and 6.5 elaborate on the meaning of seniority and specifically mention “layoff”. There is no reason to think seniority has a different meaning in section 6.6.

The employer submits seniority is carried over for the purpose of layoff in the sense that OPS seniority can be used to bump within the paramedic group. The union contends seniority is not carried over in the sense that a former employee of the ministry cannot utilize OPS seniority to bump an employee holding a service and clerical job outside the paramedic group at Hotel Dieu. Union counsel notes a paramedic receiving a surplus notice in the OPS could use seniority to bump into not only another paramedic position but also a non-paramedic position previously held by the person facing layoff. See articles 20.4.1.1 to 20.4.1.5. At Hotel Dieu, OPS seniority cannot be used to bump into any non-paramedic job in the service and clerical unit. Based upon these observations, counsel for the union concludes the employees concerned have less protection against layoff at Hotel Dieu than they had in the OPS.

IV

The union’s comparison of the seniority system in the OPS with the one at Hotel Dieu rests upon the tacit premise that section 6.6 allows an employee to reject a job offer, without foregoing surplus benefits, whenever a receiving employer’s seniority system provides less of a safeguard against layoff than the OPS system, even though seniority acquired by an employee in the OPS could be used to obtain whatever protection generally exists within the new employer’s seniority system. Is this premise correct?

Seniority systems differ in the degree of protection afforded against layoff in a number of ways. Under some systems, an employee may invoke seniority to bump into any position in the bargaining unit which the individual is qualified to hold. Other systems allow bumping into only a subset of jobs in the unit, with one system excluding more jobs than the next. Some systems impose geographical limits on bumping, with the severity of the restriction varying from one system to the next, whereas others impose no such limit at all. Some permit unlimited chain bumping, while others allow only a limited number of bumps. Other variations also exist.

How does Appendix 18 treat differing seniority systems? In my view, the authors of Appendix 18 almost certainly did not intend entitlement to surplus benefits to turn upon a detailed comparison of the OPS seniority system with the system of the receiving employer. The contrary conclusion would give rise to extensive litigation posing a number of questions for which Appendix 18 offers no answer. How is the degree of protection afforded by any aspect of a seniority system to be measured? For example, should the yardstick be the number of classifications into which bumping is permitted or the total number of employees in those classifications? If one aspect of a new employer’s seniority system provides less job security than the system in OPS, but another aspect offers more, how are these two components to be weighted relative to one another in arriving at an overall comparison of protection under these two systems. The absence of any reference to these very complex issues in Appendix 18 strongly suggests negotiators viewed them as matters that should be ignored.

This analysis leads me to reject the union’s contention that seniority has not been carried over within the meaning of article 6.6 because former employees of the ministry have less protection against layoff than they enjoyed in the OPS. The seniority system at Hotel Dieu cannot be called into question by comparing it to the system in the OPS.

One final feature of this case warrants comment. The barrier between paramedical jobs and other jobs at Hotel Dieu impedes traffic in only one direction. Paramedics cannot use their full seniority, including seniority accrued in the OPS, to claim other service and clerical positions. In contrast, employees in non-paramedical jobs are permitted to use their full seniority to claim work as a paramedic. This disparity within the Hotel Dieu seniority system emerged in opening statements in response to a question I posed. At that time, employer and union counsel agreed the point was of relatively little practical significance, because highly skilled paramedics are unlikely to want any other service and clerical job, and because other service and clerical workers are not likely to be qualified for paramedical work. The matter was not addressed in argument. Accordingly, I refrain from determining whether such a disparity has any bearing on the application of article 6.6.

The grievance is dismissed.

Dated at Toronto, Ontario this 31^st day of January, 2000.