GSB#0405/99
UNION#99U026
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union Grievance)
Grievor
- and -
The Crown in Right of Ontario
(Management Board Secretariat)
Employer
BEFORE Randi Hammer Abramsky Vice-Chair
FOR THE Kristin A. Eliot, Counsel
GRIEVOR Eliot, Smith
Barristers and Solicitors
FOR THE Kelly Burke, Counsel
EMPLOYER Legal Services Branch
Management Board Secretariat
HEARING February 28, 2001; conference call March 30, 2001.
AWARD
This is a policy grievance contesting the Employer’s position that individuals who apply for restricted competitions under Article 20.2.3 are not entitled to grieve with respect to those competitions. The Union seeks a declaration that such individuals do have recourse to the grievance procedure in these circumstances and that the standard of review should be the same as for classified employees – to have their qualifications fully and fairly assessed and to participate in a competition free of fatal flaws.
The relevant sections of Article 20, Employment Stability, are set forth below:
20.2 NOTICE AND PAY IN LIEU
20.2.1 An employee identified as surplus shall receive six (6) months notice of lay-off or, with mutual consent, an employee may resign and receive equivalent pay in lieu of notice. …
20.2.2 …
20.2.3 Where an employee accepts pay in lieu of notice pursuant to this article, any further entitlements under this Central Collective Agreement are forfeited save and except any rights under Article 53 or 78 (Termination Payments) and Article 20.3 (Separation Allowance) or paragraph 4 of Appendix 9 (Employment Stability). The employee will be eligible to apply for restricted competitions from the last day of work until twenty-four (24) months from the date on which lay-off would otherwise have occurred.
20.2.4 …
20.2.5 Where an employee who accepts pay in lieu of notice is re-appointed to a position in the Ontario Public Service after the originally projected lay-off date, and prior to the expiration of a further twenty-four (24) months, the employee will repay to the ministry all monies, excluding tuition fees, received under Article 20.3 (Separation Allowance) or paragraph 4 of Appendix 9 (Employment Stability). The employee’s continuous service date for all purposes except Article 53 or 78 (Termination Payments), shall be deemed to include both service up to the last day of active work and the accumulation of service after the date of re-appointment. The new service date for purpose of termination pay shall be the date on which the employee recommences work.
Also relevant is Article 22, Grievance Procedure. In part, Article 22 provides as follows:
22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.
Stage One
22.2.1 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee’s immediate supervisor…
Stage Two
22.3.1 If the complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, through the Union, with the senior human resources representative in the ministry or his or her designee.
Arguments of the Parties
A. The Employer
The Employer contends that under Article 20.2, an employee “may resign and receive equivalent pay in lieu of notice.” In its view, resignation precedes the receipt of pay in lieu and once the employee resigns, he or she is no longer an “employee” of the Ontario public service entitled to utilize the grievance arbitration provisions in the collective agreement. The grievance arbitration process, it submits, is specifically limited to the Union and “employees.” It does not cover former employees, except for events that take place while the individual is employed (i.e., termination). It contends that events which arise after an employee’s resignation cannot be challenged through the grievance arbitration process.
The Employer submits that all potential grievors under Article 20.2.3 no longer have “employee” status. They are no longer part of the bargaining unit and have no access to the grievance arbitration procedure under the collective agreement. This Board, it contends, has no jurisdiction over such individuals.
In support of its position, the Employer cites to Re Honeywell Ltd. And United Automobile Workers, Local 80 (1975), 1975 CanLII 2104 (ON LA), 10 L.A.C. (2d) 446 (Hinnegan). In that case, a former employee alleged a violation of the long-term disability benefits provision in the collective agreement. She was not, at the time her claim arose or at the time her grievance was filed, an employee of the company. The board of arbitration determined that because she was not an employee covered by the collective agreement at the relevant time she had “no status whatsoever to file and pursue the grievance procedure provided in that collective agreement.”
The Employer contends that the fact that the Board does not have jurisdiction over such matters may lead to an inequity is not determinative. In support, it cites to OPSEU (Patricia Campbell) and Ministry of Health, GSB No. 1088/86 (1988) (Draper, Vice-Chair). In that case, the Board ruled that it had no jurisdiction over an allegation by an unclassified employee that the employer violated Article 4 in the conduct of a job competition. It noted that its ruling left members of the unclassified service with no recourse when they alleged that a competition was improperly conducted, but ruled at p. 2 that “this seeming inequity is for the parties, not the Board, to address.” The same, it argues, is true in the instant case.
The Employer further argues that under Article 20.2.3, an employee who elects pay in lieu specifically forfeits “any further entitlements under this Central Collective Agreement” save and except for a limited number of specifically listed rights under Article 53 or 78 and Article 20.3 or paragraph 4 of Appendix 9. It submits that those listed rights arise while the individuals are still employed. In contrast, it argues that their eligibility to apply for restricted competitions arises after they are no longer “employees” of the government. The Employer asserts that an employee may grieve the specific entitlements set out in Article 20.2.3, but may not grieve any other matter.
The Employer contends that the last sentence of Article 20.2.3, that “[t]he employee will be eligible to apply for restricted competitions from the last day of work until twenty-four (24) months from the date on which lay-off would otherwise have occurred” is a gratuitous benefit offered to employees who had been in the public service for some time. It allows them to apply for restricted competitions which, as a non-employee, would otherwise be closed to them. It argues, however, that it makes no sense from a practical point of view to allow these non-employees to grieve such competitions. Without seniority, it submits that they stand little chance of successfully competing against employees with seniority because of the relative equality provision in Article 6.3.1.
In support of this position, it cites to OPSEU (Garrison) and Ministry of Transportation, GSB No. 1229/94 (1995) (Kaplan, Vice-Chair), in which the Board ruled, among other things, inter alia, that where the successful candidate in a job competition was a classified employee with many long years of service he would have likely trumped the grievor, an unclassified employee, even if the grievor had received a perfect score. It also cites to OPSEU (Norland) and Ministry of Correctional Services, GSB No. 3160/92 (1993) (Gorsky, Vice-Chair) in which the Board ruled at p. 22 that the rules of contract interpretation owe a good deal to common sense and must be applied with a good deal of common sense.
The Employer contends that it makes little sense to allow such grievances, which would deplete the Union’s resources. It submits that allowing such grievances would open the floodgates since every restricted competition that non-employees are allowed to participate in would be open to challenge.
The Employer further contends that under the specific terms of Article 20.2.3, individuals who elect pay in lieu “forfeit” “any further entitlements under this Central Agreement" which includes the grievance arbitration provisions of Article 22. It asserts that by excluding the grievance procedure the parties expressed an intent that the grievance procedure would not apply, “save and except” for the listed provisions.
In the alternative, the Employer argues that the “right” surplussed employees have to apply for restricted competitions should be literally interpreted to mean that they are “eligible to apply for restricted competitions…” period. If they are precluded from applying, it submits that may be grieved, but nothing further. This limited “right”, it asserts, is what the parties agreed to in Article 20.2.3, and the Board has no power to alter or amend the collective agreement. Acceptance of the Union’s position, it asserts, would constitute an alteration of the parties’ agreement. The Board, it argues, must give the language its “plain meaning”, citing OPSEU (Norland), supra. It contends that the fact that the grievance procedure is limited to “employees” further underscores that non-employees should not be allowed to grieve under Article 20.2.3.
The Employer also cites to OPSEU (Ahluwalia et al.) and Ministry of Transportation and Communications, GSB No. 725/83 (1984)(Springate, Vice-Chair). In that case the Board ruled that the fact that unclassified employees could apply to competitions did not give them the right to grieve them.
Finally, the Employer submits that if the Board determines that such individuals may grieve under Article 20.2.3, the standard should be limited to “bad faith”. The Employer argues that non-employees should not have greater rights in terms of the arbitral standard of review than unclassified employees.
B. The Union
The Union submits that the fundamental question is whether Article 20.2.3 creates a substantive right capable of giving rise to a “difference between the parties.” If so, the matter is arbitrable under Section 7(3) of the Crown Employees Collective Bargaining Act (CECBA) and the parties cannot contract out of that statutory provision.
The Union contends that the fact that the surplus employees are no longer “employees” is irrelevant. The pivotal issue, it submits, is whether the collective agreement affords the surplussed employees a substantive right. It notes that even in Re Honeywell Ltd. and United Automobile Workers Union, Local 80, supra, cited by the Employer, it was noted that the Ontario Court of Appeal, in Re Blouin Drywall Contractors Ltd. And United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103, held that where the collective agreement in question expressly confers benefits on non-employee members of the union those benefits could be the subject of a grievance and within the jurisdiction of a board of arbitration under the agreement. The key, the Union submits, is whether the agreement confers a right or benefit on a non-employee member.
The Union asserts that Article 20.2.3 clearly confers a right and benefit on surplussed employees – the right to apply to restricted competitions for a period of twenty-four months. It submits that the language is clear on its face, and that it is one of the inducements that was bargained for, along with six-months pay in lieu, severance pay and termination pay, to encourage employees to elect the pay in lieu option rather than seek to displace another employee or seek redeployment. The right to apply to restricted competitions, it argues, is a real benefit and provides surplussed employees with an opportunity to return to the public service. Under Article 20.2.5, if they apply to a competition and are successful within the twenty-four month period, their continuous service date includes their prior service. It contends that this is a significant substantive right, not a gratuitous benefit, enforceable through the grievance arbitration procedure. In support, it cites to OPSEU (McIntosh) and Ministry of Government Services, GSB No. 3027/92 (1993)(Dissanayake, Vice-Chair)
The Union also submits that the parties did not exclude such matters from grievance arbitration under Article 20.2.3. The fact that the grievance procedure is not specifically exempted from forfeiture does not mean, it submits, that the grievance procedure was excluded. It contends that this provision does not read out the grievance procedure; it only requires an employee to give up “entitlements” under the Central Agreement. The word “entitlements”, it contends, refers to substantive rights, not procedural rights. In its view, just as the employee’s right to grieve his or her entitlements under Article 53 or 78 and Article 20.3 or paragraph 4 of Appendix 9 remain, so too does the right to grieve the right to apply to restricted competitions. In support the Union cites to OPSEU (Brown, Murdock, Rogers) and Ministry of Municipal Affairs & Housing, GSB No. 1343 (1997)(Kaplan, Vice-Chair), in which Vice-Chair Kaplan concluded at p. 7 in dicta, that “the employer’s submission that once an employee accepts the Article 20.2.3 option he or she has no further rights to grieve about anything is a proposition that seems dubious, at best.”…
Instead, the Union contends that exclusion of a right must be expressed in very clear terms and that the language of Article 20.2.3 and Article 22 falls short. The Union contrasts the very clear exemption from arbitration of the discharge of probationary employees found in Article 21.2 (”[f]or greater certainty, it is understood that nothing in Article 21.1 confers on a probationary employee any right to grieve or arbitrate his or her dismissal) with the language in Article 20.2.3. It submits that if the parties intended to exempt the rights granted in Article 20.2.3 from arbitration, they would have done so using similar contractual language.
In support of its contention, the Union cites Re Corp. of City of Windsor and International Assoc. of Firefighters, Local 455 (1975), 8 L.A>C. ( 2d) 320 (Weatherill) and Re International Waxes Ltd. and Oil, Chemical and Atomic Workers’ International Union (1977), 1977 CanLII 2919 (ON LA), 17 L.A.C. (2d) 62 (Schiff), which hold that “clear language” would be required to bar a matter from arbitration, if it is possible at all.
Further, the Union contends that even if Article 20.2.3 could be construed to read out the grievance procedure, such a construction would be void under Section 7(3) of CECBA. That provision reads follows:
Every collective agreement relating to Crown employees shall be deemed to provide for the final and binding settlement by arbitration by the Grievance Settlement Board, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration, or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
In support of its contention that the parties cannot contract out the arbitration of substantive rights under Section 7(3) of CECBA, the Union cites to OPSEU (Pietroban) and Ministry of Health, GSB N0. 2257/95 (1997)(Mikus, Vice-Chair); OPSEU (Turcotte) and Ministry of the Solicitor General and Correctional Services, GSB No. 2196/97 (Marszewski, Vice Chair); Re International Waxes Ltd. And Oil, Chemical and Atomic Workers’ International Union, supra; Re Ontario Hydro and Ontario Hydro Employees Union, Local 1000 et al. (1983) 1983 CanLII 1868 (ON CA), 147 D.L.R. (3d) 210 (Ont. C. A.); Re Consolidated-Bathurst Packaging Ltd. (St. Thomas Division) and International Woodworkers of America, Local 2-337 (1981), 1981 CanLII 4521 (ON LA), 1 L.A.C. (3d) 10 (Adams). The Union argues that since the right to apply to restricted competitions creates a substantive right, any provision which purports to take away the right to arbitrate a dispute over that right is void under Section 7(3) of CECBA. Accordingly, it contends disputes over the right to apply to restricted competitions under Article 20.2.3 are arbitrable.
In terms of the standard of arbitral review, the Union contends that the standard should be higher than the “bad faith” standard applied to unclassified employees under OPSEU (McIntosh), supra. It submits that the language used in Article 20.2.3 – the right to apply to restricted competitions – is broader than the limited rights unclassified employees have under Article 6 and would therefore encompass more of the principles set out in Article 6. It contends that even though the surplus employees no longer have seniority, they are entitled to have their qualifications fully and fairly assessed and to participate in competitions free from fatal flaws. It argues that when the purpose of the provision is considered – to provide surplus employees with the opportunity to return to the public service and regain their seniority – a broader standard of review is required.
Decision
1. Arbitrability
Based on the case law cited, the question of arbitrability of Article 20.2.3 depends on whether that provision creates a substantive right on behalf of employees who elect pay in lieu of notice. Whether the individual is an “employee” at the time of the grievance or at the time the claim arose is not determinative because a collective agreement may confer a right or a benefit on a non-employee that is enforceable through the grievance arbitration procedure. See, Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, supra, cited in Re Honeywell Ltd. And United Automobile Workers, Local 80 supra. What matters is whether the collective agreement creates a substantive right and that is a matter of contract interpretation.
For a number of reasons, I conclude that the last sentence of Article 20.2.3 creates a substantive right in surplus employees who elect pay in lieu to apply to restricted competitions for a period of twenty-four months.
By its terms, Article 20.2.3 states that employees who elect pay in lieu “will be eligible to apply for restricted competitions…” By definition, a restricted competition is limited to current classified civil servants or unclassified staff working in the OPS during the posting period. Accordingly, the ability to apply to restricted competitions is an ability which non-employees do not enjoy. It is a real, tangible, substantive benefit.
That the parties intended it to be meaningful, as opposed to gratuitous, is evident from the fact that it was bargained. It was a negotiated benefit. It was part of the package of benefits negotiated to encourage employees to accept pay in lieu instead of remaining to seek displacement or redeployment opportunities. It also takes on added meaning in light of Article 20.2.5. Under that provision, if an employee who accepted pay in lieu successfully competes for a position within the twenty-four month period, his or her prior continuous service is restored. Given the importance of an employee’s continuous service date under the collective agreement and in the Ontario public service, the opportunity to compete and return to the public service within the twenty-four month period is a substantial and substantive benefit.
The fact that the words “eligible to apply” are used rather than “right to apply” makes no material difference. Stating that employees who elect pay in lieu “will be eligible to apply” is no different than stating that they have the right to apply.
Accordingly, I conclude that the right to apply to restricted competitions contained in Article 20.2.3 is a substantive right in the employee who accepts pay in lieu which may be asserted against the Employer. As such, a dispute over it creates a “difference between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement…” as set forth in Article 22 and Section 7(3) of CECBA.
I also conclude that the first sentence of Article 20.2.3 does not read out the grievance procedure. Counsel for the Employer acknowledged that an employee’s claims under Article 53 or 78 and Article 20.3 or paragraph 4 of Appendix 9 were subject to the grievance arbitration, but argued that the ability to apply to restricted competitions was not. Counsel sought to distinguish the former benefits as arising while the individual was still an active employee while the latter benefit arose thereafter. She also argued that it was a gratuitous benefit. I cannot agree. For the reasons already stated, the right to apply to restricted competitions is a real, not a gratuitous, benefit. I also see no distinction based on timing. Both separation and termination benefits accrue upon resignation, not before it. Accordingly, all of the benefits conferred in Article 20.2.3 arise after the employee resigns.
I also conclude that far more explicit language would be needed to decide that the parties’ meant to exempt grievance arbitration from the rights provided under Article 20.2.3. Re Corp. of the City of Windsor and International Association of Firefighters, Local 455, supra; Re International Waxes Ltd. And Oil, Chemical and Atomic Workers International Union, supra.
But even if Article 20.2.3 could be read so as to exclude from arbitration the rights provided under Article 20.2.3, such an exclusion would be void under Section 7(3) of CECBA. The case law cited, including GSB case law, clearly establishes that where a collective agreement creates a substantive, assertible right against the employer then “any provision in the agreement which blocks the resort to arbitration to determine the right would be void as contrary to [then]s.37(1) [of the Labour Relations Act; now s. 48(1)].” Re Ontario Hydro and Ontario Hydro Employees’ Union, Local 1000 et al., supra at p.222. Then s. 37(1) of the Ontario Labour Relations Act is substantially similar to s. 7(3) of CECBA. Accord, Re Toronto Hydro-Electric System and Canadian Union of Public Employees, Local 1 (1980) 1980 CanLII 1784 (ON HCJ), 111 D.L.R. (3d) 693 (Ont. Div. Ct); Re Consolidated-Bathurst Packaging Ltd. (St. Thomas Division) and International Woodworkers of America, Local 2-337, supra.
In OPSEU (Turcotte), supra, Vice-Chair Marszewski determined that the GSB had jurisdiction to determine if a probationary employee has been discharged for just cause or terminated due to a bona fide release, despite provisions in the collective agreement which read “[a]ny probationary employee who is dismissed or released shall not be entitled to file a grievance” and “[f]or greater certainty, it is understood that nothing in Article 2.1.1 [which requires just cause for discipline and dismissal of employees] confers on a probationary employee any right to grieve or arbitrate his or her dismissal.” Vice-Chair Marszewski found that the collective agreement conferred on all employees an unqualified substantive right not to be dismissed without just cause, and that a procedural provision regarding access to the grievance arbitration procedure could not constitute a bar to and defeat a substantive right. (p. 22)
Vice-Chair Mikus in OPSEU (Pietroban), supra, made a similar ruling. In that case, the Employer argued that a Memorandum of Agreement in regard to GO-Temp employees did not include the grievance arbitration provision. Vice-Chair Mikus determined that the Memorandum of Agreement, as a collective agreement, could not have excluded the grievance arbitration procedure. She further ruled at pp. 8-9 that “[e]ven if it was their intention to exclude the grievance procedure from the Memorandum of Agreement, their intentions cannot supersede the provisions of the Act.”
Accordingly, in this case, I conclude that Article 20.2.3 confers a substantive right in employees who elect pay in lieu to apply for restricted competitions for a period of twenty-four months, and that it is a right assertible against the Employer. I also conclude that neither Article 20.2.3, nor Article 22 precludes the arbitration of “differences” over that right, but that even if they did, they could not be enforced in light of Section 7(3) of CECBA.
2. Standard of Review
For the reasons set forth below, I conclude that the standard of review should be the “bad faith” standard applied to unclassified employees.
Historically, unclassified employees had no rights under then Article 4, Posting and Filling of Vacancies or New Positions [now Article 6]. Then, in the 1992-1993 collective agreement, unclassified employees were given limited rights under Article 4.1 and 4.4, specifically, the right to have their applications acknowledged and time off with no loss in pay for an interview. Vice Chair Dissanyake in OPSEU (McIntosh), supra at p. 20, determined that these provisions “explicitly recognize that unclassified employees…will have a right to participate in job competitions under article 4.”
In my view, the right of unclassified employees to participate in job competitions for unclassified employees and the right to apply to restricted competitions in Article 20.2.3 are substantially similar. The “right” contained in Article 20.2.3 is not limited, as the Employer contends, to the literal ability to apply. To so narrowly construe this provision would render the right to apply, which is a substantive right, largely illusory. When the purpose of the provision is considered – to provide employees who are surplussed and elect pay in lieu the opportunity to apply for restricted competitions and possibly return to the public service – then it must be determined that the right includes the right to participate in such competitions.
As with the unclassified employees, the right to apply to restricted competitions cannot be rendered meaningless by bad faith conduct by the employer. As Vice-Chair Dissanayake concluded in McIntosh at pp. 20-21:
It is not reasonable to conclude that the parties would go to the trouble of amending the collective agreement to facilitate, and indeed encourage (by providing for paid time off in Article 4.4), participation by unclassified employees in job competitions and at the same time permit the employer to render those provisions meaningless by acting in bad faith. The bad faith conduct of the employer would unduly limit, and indeed negate, the rights of unclassified employees under articles 4.1 and 4.4. Those rights would be rendered meaningless. Having facilitated and encouraged participation in job competitions, it must reasonably be inferred that the parties would have envisaged at the very least that those unclassified employees who do participate will have their applications considered by the employer in good faith.
Likewise, here, I conclude that the parties would not have included such a right in the collective agreement and at the same time permit the employer to render that right meaningless by acting in bad faith. At the very least, as concluded in McIntosh, those employees who elect pay in lieu and apply to a restricted competition during the twenty-four month period are entitled to have their applications considered by the employer in good faith.
Although I am sympathetic to the situation of those surplus employees who desire to return to the public service, I do not believe their rights under Article 20.2.3 can be equated with the rights of classified staff under Article 6. Instead, their rights are akin to those of unclassified employees and the same standard of review should apply.
Accordingly, I conclude and declare as follows:
Article 20.2.3 creates a substantive right in employees who elect pay in lieu to apply for restricted competitions for a period of twenty-four months.
As a substantive right, any “differences between the parties arising from the interpretation, application, administration or alleged contravention” of the Agreement are arbitrable under Article 22 and Section 7(3) of CECBA.
The arbitral standard of review is the “bad faith” standard applied to unclassified employees.
Dated at Toronto, this 8th day of May, 2001.