GSB #2064/99
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
AMAPCEO
(Cowling)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Transportation) Employer
BEFORE Nimal Dissanayake Vice Chair
FOR THE Steven Barrett
GRIEVOR Counsel
Sack Goldblatt Mitchell
Barristers & Solicitors
FOR THE John Smith
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING September 29, 2000.
DECISION
This is a grievance dated November 3, 1999 filed by Mr. William Cowling, wherein he alleges that he has been wrongfully denied rights under article 18.8.1(h) of the collective agreement. That provision reads:
Exceptions from the Requirements to the Posting and Filling of Positions
18.8.1 Vacancies may be filled without competition upon clearing surplus under the following circumstances:
h) In addition, any employee who is directly assigned under Article 27 and who then applies for a vacant position or whose duties are changed as a result of a reorganization or reassignment of duties and the position is reclassified to a lower classification is entitled to be appointed to the first vacant position which:
. is in his/her ministry as defined in Article 27.12; and
. is at a salary maximum higher than that currently held, but not higher than originally held
. he/she is qualified to perform
. has cleared the surplus requirements of Article 27;
and the provisions of Articles 18.1 to 18.5 shall not apply unless otherwise specified.
The employer acknowledged that the grievor would have been entitled for rights under article 18.8.1(h), but for one reason. That is that the effect of the enactment of the Labour Relations and Employment Statute Law Amendment Act, 1995 (commonly referred to as ABill 7") was to amend the Crown Employees Collective Bargaining Act, resulting in the exclusion of the grievor from the Act and the collective bargaining regime established thereunder. Specific reliance was placed on s.1(3)(11) of Bill 7 which reads:
1(3) This Act does not apply with respect to the following:
- Persons employed in the Office of the Premier or in Cabinet Office.
The material facts are not in dispute. From January 1994, the grievor held the position of Project Manager Planning and Development, Information Technology Systems and Services at the Cabinet Office. In January 1995 the Association applied for certification for a bargaining unit that included the grievor's position. In March of 1995 the association was voluntarily recognized by the employer as bargaining agent for the said bargaining unit. The grievor thus became a member of that unit. On October 2, 1995, the grievor received a surplus notice on the grounds that his position at the Cabinet Office had been abolished due to shortage of funds. On May 7, 1996, the grievor was informed that he was laid off effective that date because the employer had been unsuccessful in finding him a direct assignment during the surplus notice period and extended notice period. However, it was explicitly noted that the grievor continued to have recall rights under the interim collective agreement which had by then been concluded, and that he would continue to be matched to vacancies for a period of 24 months from the date of layoff. On August 16, 1996, the grievor was informed that effective September 16, 1996 he was recalled and assigned to the position of Business Analyst at the Ministry of Transportation. This position had a lower classification and pay rate than the position the grievor had held at the Cabinet Office. The grievor accepted this assignment.
Subsequently, the grievor requested that he be assigned without competition, to the vacancy of System Head, E. Business Applications, pursuant to article 18.8.1.(h) but was denied. The result was the instant grievance.
At arbitration, the employer defended its decision to deny the grievor rights under article 18.8.1(h) on the grounds that while initially the grievor had entitlement to those rights despite being an employee in the Cabinet Office, when Bill 7 received royal assent on November 10, 1995, the effect was to remove him immediately from the bargaining unit, under the exclusion in s. 1(3)11. Thus, according to the employer, effective November 10, 1995, the grievor was no longer entitled to rights under article 18.8.1(h). The employer agreed that, but for that exclusion the grievor would have been entitled under article 18.8.1(h) to be assigned to the vacancy in question, provided only that he was qualified to perform the duties of the position. If the Board finds that the grievor was not excluded, the employer agreed to interview the grievor in order to assess whether he was qualified to perform the duties of the vacant position.
The Association took the position that the grievor continued to be entitled to article 18.8.1.(h) rights despite Bill 7. Three alternate arguments were made in support of this position. The union’s primary position was that article 18.8.1(h) rights vested in the grievor when he was surplussed on October 2, 1995, which pre-dated the enactment of Bill 7. Citing the Interpretation Act, as well as common law principles of statutory interpretation, counsel for the association submitted that Bill 7 should not be interpreted so as to deprive the grievor of rights which had already vested in him prior to Bill 7 coming into force. If its position is upheld, the association was content to allow the employer to assess the grievor's qualifications to perform the duties of the vacant position through an interview process. However, it expressly retained the right to challenge that assessment and the employer’s application of article 18.8.1.(h) to the grievor's circumstances, should the grievor be wrongfully denied an assignment.
S. 14(1) of the Interpretation Act reads:
14(1) Where an Act is repealed or where a regulation is revoked, the repeal or revocation does not, except in this Act otherwise provided,
(c) Affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the Act, regulation or thing so repealed or revoked.
The common law principle in this regard has been summarized as follows: “It is presumed that legislation is not intended to interfere with vested and accrued rights” (Driedger on the Construction of Statutes, 3rd Ed. by Ruth Sullivan, (Butterworths) at p. 508). In Upper Canada College v. Smith, (1920) 1920 CanLII 8 (SCC), 61 S.C.R. 413 at p. 417, Duff J. explained the justification for the principle, stating that it was “a flagrant violation of natural justice to deprive people of rights acquired by transactions perfectly valid and regular according to the law of the time." In Driedger at p. 530, it is stated:
To worsen the position of individuals by changing the legal rules on which they relied in arranging their affairs is arbitrary and unfair. Where the application of new legislation creates special prejudice for some, or windfalls for others, the burdens and benefits of the new law are not rationally or fairly distributed. These effects may be hard on the individuals involved and they undermine the general security and stability of the law. For these reasons interference with vested rights is avoided in the absence of a clear legislative directive.
The employer’s response to this argument was that the relevant date was not the date of surplus or layoff but August 16, 1996, when the grievor was recalled and directly assigned under article 27 to the lower classified position, which date post-dated the coming into effect of Bill 7. If this is correct no interference with vested rights would be involved.
Having carefully reviewed the respective submissions of the parties, the Board concludes that the Association’s position must prevail. While article 18.8.1(h) refers to "directly assigned under article 27", the rights under article 18.8.1(h) are ultimately predicated upon an employee being surplussed and being on recall. Direct assignment is dealt with under article 27.8 which reads:
27.8 Direct Assignment into permanent Vacancies
27.8.1 The following processes and rules shall apply to:
(a) all employees at the time they are declared surplus;
(b) all employees who remain eligible or available for assignment into subsequent vacancies for the remainder of their surplus notice after processes and options set out in Articles 27.6.2 and 27.6.3 have been followed; and
(c) all employees on recall.
Thus, a direct assignment under article 27 follows as consequence of a surplussing and recall rights. In other words, an employee at the time of surplussing may reasonably expect that he will have a right to a direct assignment under article 27 and that as a result, he would have rights under article 18.8.1(h) following a direct assignment, provided he meets the conditions therein. Since Bill 7 did not exist at the time the grievor was surplussed, he was reasonably entitled at that time to have such an expectation. Those were the rules that would govern his future employment in the OPS. It is simply unfair to change those rules as a result of subsequent legislation. The Board finds further comfort in reaching this conclusion from a purposive review of the exclusion in Bill 7. The obvious purpose behind the exclusion of employees in the Cabinet Office and Premier’s Office is the concern about potential conflict of interest and confidentiality. However, it is clear that no such concern could have arisen as far as the grievor was concerned once he was laid off from his Cabinet Office position on May 7, 1995. This is because as of that date, he had no involvement with, and performed no duties for, the Cabinet Office even though technically his "home position" may have continued to be in the Cabinet Office. It is even more arbitrary and unfair to deprive the grievor of his vested rights under article 18.8.1(h), when at the time Bill 7 came into force, he had no involvement with the Cabinet Office for any practical purpose.
For those reasons, the Board finds that Bill 7 did not have the effect of depriving the grievor of his rights under article 18.8.1(h). The employer, therefore, shall carry out the assessment of the grievor's qualifications as agreed to. In view of that result, it is not necessary for the Board to deal with the Association’s alternate positions.
Remedial Issues
As noted above, the Association agreed that the employer may assess the grievor's qualifications through an interview, if the Board finds in its favour. However, counsel sought orders from the Board imposing the following conditions related to the conduct of that interview.
(1) That the grievor be given notice of the interview date 2 to 3 weeks in advance, so that he would be able to prepare.
(2) That the grievor be provided with the same information related to the interview as was provided to other employees who were interviewed for the vacancy in question.
(3) That the employer permit a representative of the association to be present at the grievor's interview as an observer.
The employer took the position that in the absence of any allegation or evidence of bad faith, the Board should not issue any orders relating to the interview.
In the Board’s view, this case is not dissimilar to a job competition case, where the employer is found to have wrongfully denied an interview to an applicant. In such a case, the Board would impose conditions on the conduct of the interview process ordered, only where special circumstances warrant such orders to ensure that the grievor is properly redressed. In such case, as much as in the present case, the remedial entitlement of the grievor is no more and no less than to be placed as much as possible in the same position as he would have been in, but for the employer’s breach. The present grievor's entitlement also is to be placed in the same position he would have been in, had he been granted an interview by the employer in the first instance. Applying that standard, considering the absence of any special circumstances, the request to have an Association representative at the interview is inappropriate and is denied. With regard to the Association’s remaining requests, the Board hereby orders that the employer treat the grievor with regard to provision of notice and information, in the same manner it treated other employees, if any, who were interviewed for the position in question.
Upon consent, the Board remains seized in the event of any disputes arising with regard to the conduct of the grievor's interview and the application of article 18.8.1(h) rights by employer.
Dated at Hamilton, this 5th day of October, 2000.