GSB# 0751/99

UNION# 99B742

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Unions

(MacDougall)

Grievor

-and-

The Crown in Right of Ontario

(Ministry of Community and Social Services)

Employer

BEFORE: D.J.D. Leighton Vice-Chair

FOR THE GRIEVOR: Kristin Eliot Counsel Eliot, Smith Barristers and Solicitors

FOR THE EMPLOYER: Carol Ann Witt Counsel Legal Services Branch Management Board Secretariat

HEARING: February 13, 2002. Claire MacDougall was an Income support worker in the Ministry of Community and Social Services when she was declared surplus in 1999. On June 28, 1999 she grieved that she had been denied her displacement rights under Article 20.4.1.5 of the collective agreement. Ms. MacDougall had been a welfare field worker in Belleville prior to becoming an income support worker, and the union took the position that she should have been bumped into the Welfare Field Worker II position in Kingston. The employer disagreed that she should be bumped into the position because she had gained the experience as a welfare field worker in Belleville, which was beyond 40km of her home position.

The union takes the position that the 40km criteria refers only to the area of search for a job and not for where experience is gained in a position. Since the grievor was ultimately successful in getting an income support specialist position in November 1999 under Article 20.12 of the collective agreement, she was never without work. The union is asking for a declaration only as the interpretation of Article 20.4.1.5 of the collective agreement.

Counsel agreed to the summary of the above-noted facts and documentary evidence submitted by the union. No viva voce evidence was tendered. Employer counsel made her submission by way of teleconference call.

The Union Submission

Article 20.4 provides employees with displacement rights when they have been surplussed and sets out the steps which the employer must take in identifying possible solutions. Counsel submitted that up until Article 20.4.1.5 the employer’s search for a suitable position for a surplussed employee is within a 40km radius of the home position. If no suitable position is identified within 40km of the surplussed employee’s home position then Article 20.4.1.6 provides, if the employee requests, that the employer look for a suitable position beyond 40km of the employee’s home position. Counsel argued that the employer’s position that the grievor needed to have experience gained within 40km of the home position does not make sense, especially when Article 20.4.1.6 is considered, since that provision allows an employee to bump into a position beyond 40km. There is no logic in requiring experience within 40kms, when the employee might be able to bump to a position beyond 40km. Further, Article 20.4.1.7 provides displacement rights for the employee to bump outside of his/her own ministry if a suitable position is identified. In counsel’s submission, on the employer’s interpretation, a surplussed employee would have a greater benefit bumping outside his/her own ministry, than under Article 20.4.1.5.

Counsel argued further that the principles of interpretation, which are broad and purposive in approach, support the union’s interpretation here. She argued further that there was no purpose in restricting surplus employees to positions within 40km of the surplussed employee’s headquarters, only if they had gained the experience within 40km of their home position. One of the primary requirements of the displacement provision is that the surplussed employee can do the work. It doesn’t matter then where that employee has gained the experience to do the work.

Counsel relied on the following cases in support of her submission: OPSEU (Fiuk) and the Ministry of Transportation, 2601/96 (Abramsky); OPSEU (Penney) and the Ministry of Natural Resources, 697/96 (Verity); OPSEU (Hutt) and the Ministry of Agriculture, Food and Rural Affairs, 1594/97 (Verity).

Union counsel asked for a declaration that Article 20.4.1.5 be interpreted as requiring the employer to look for a suitable position within 40km, but not requiring the experience for that position to be gained within the same 40km.

Submission of the Employer

Submission of the Employer

Counsel for the employer submitted that Article 20.4.1.5 was not a model of clarity. She submitted that the employer’s interpretation was a possible interpretation, and that there was no bad faith behind the interpretation. She noted that the provision in the article allows a displacement outside the employee’s class series. Counsel contended that this provision had been in the collective agreement for eight years and the issue as to its interpretation had never before been raised by the union. The employer asked the board to dismiss the grievance or, in the alternative, to frame the declaration narrowly so as to relate only to Article 20.4.1.5.

Decision

Article 20.4 provides as follows:

20.4 Displacement

20.4.1.1 An employee who has completed his or her probationary period, who has received notice of lay-off pursuant to Article 20.2 (Notice and Pay in Lieu), and who has not been assigned in accordance with the criteria of Article 20.5 (Redeployment) to another position shall have the right to displace an employee who shall be identified by the Employer in the following manner as set out in Articles 20.4.1.2 to 20.4.1.10.

20.4.1.2 The Employer will identify the employee with the least seniority in the same classification and the same ministry as the employee’s surplus position. If such employee has less seniority than the surplus employee, he or she shall be displaced by the surplus employee provided that:

(a) such employee’s headquarters is located within a forty (40) kilometre radius of the headquarters of the surplus employee; and

(b) the surplus employee is qualified to perform the work of the identified employee.

20.4.1.3 If the surplus employee is not qualified to perform the work of the least senior employee identified under Article 20.4.1.2 above, the Employer will continue to identify, in reverse order of seniority, employees in the same classification and in the same ministry until a less senior employee is found within forty (40) kilometres of the surplus employee’s headquarters whose work the surplus employee is qualified to perform.

20.4.1.4 Failing displacement under Article 20.4.1.2 or 20.4.1.3 above, the Employer will identify, in reverse order of seniority, members in the classes in the same class series in descending order until an employee with less seniority is found in the same ministry within forty (40) kilometres of the surplus employees headquarters. The identified employee shall be displaced by the surplus employee provided he or she is qualified to perform the work.

20.4.1.5 Failing displacement under Articles 20.4.1.2, 20.4.1.3 or 20.4.1.4 above, the Employer will review other classes which the employee held either on a full-time basis, or who performed the full range of job duties on a temporary basis for at least twelve (12) months in the same ministry within forty (40) kilometres of the surplus employee’s headquarters. The Employer will identify, in reverse order of seniority, a less senior employee in the class with the maximum salary closest to but not greater than the maximum salary of the surplus employee’s current classification. The identified employee shall be displaced by the surplus employee provided he or she is qualified to perform the work.

20.4.1.6 Failing displacement under Articles 20.4.1.2, 20.4.1.3, 20.4.1.4 or 20.4.1.5 above, if the employee requests, the Employer will repeat the steps specified in Articles 20.4.1.2, 20.4.1.3, 20.4.1.4 and 20.4.1.5 with respect to positions beyond a forty (40) kilometre radius of his or her headquarters. No relocation expenses will be paid.

20.4.1.7 Failing displacement under Articles 20.4.1.2, 20.4.1.3, 20.4.1.4, 20.4.1.5 or 20.4.1.6 above, the Employer will identify, in reverse order of seniority, a less senior employee who is:

(c) in another ministry; and

(d) whose headquarters is within a forty (40) kilometre radius of the displacing employee’s headquarters; and

(e) whose position the displacing employee previously held either on a full-time basis, or who performed the full range of job duties on a temporary basis for at least twelve (12) months in that ministry; and

(f) if the employee previously held more than one position in that ministry, the position with a maximum salary closest to but not greater than the maximum salary of the displacing employee’s current classification.

The identified employee shall be displaced provided the displacing employee is qualified to perform the work.

20.4.1.8 No later than one (1) week following commencement of the notice period, the Employer will advise the surplus employee of the position into which he or she is eligible to displace.

20.4.1.9 The surplus employee must indicate in writing to the Ministry/Agency Director of Human Resources his or her intention to displace the employee identified pursuant Articles 20.4.1.2, 20.4.1.3, 20.4.1.4, 20.4.1.5, 20.4.1.6, or 20.4.1.7 above, as applicable. Written intention to displace must be received by the Ministry/Agency Director of Human Resources no later than one (1) week following the date the surplus employee received advice that he or she was eligible to displace an employee pursuant to Article 20.4.1.8 above.

20.4.1.10 An employee who does not indicate in writing to the Ministry/Agency Director of Human Resources his or her intention to displace within the time period stipulated by Article 20.4.1.9 above shall be deemed to have given up his or her right to displace and opted for redeployment under Article 20.5 (Redeployment).

The issue before me is whether Article 20.4.1.5 which requires the employer to look for positions outside the employee’s current classification, also requires that the experience must be gained within 40km of the surplussed employee’s headquarters. This issue was addressed with regard to Article 20.4.1(f) of the previous collective agreement between the parties (January 1994 – December 1998) in the Hutt decision. This provision required that if no suitable position was found throughout the displacement process within the surplussed employee’s own ministry, then positions in other ministries had to be considered. The employer, in the Hutt case, took the position that not only must the position be found within 40km, but the surplussed employee must have gained the experience in the position within the 40km. Arbitrator Verity’s reasoning in this case is helpful. He noted:

Article 20.4.1 is, in effect, a procedural code whereby specified displacement rights in sequential order are available to employees based on seniority. Each step of the procedure is self-contained.

He stated that while in his view Article 20.4.1 was very carefully written, the words needed to be interpreted in their context and the meaning from the context “may vary from article to article and from subsection to subsection.” Arbitrator Verity found that experience does not have to be obtained within the 40km radius of the surplussed employee’s headquarters. While the position must be identified within 40km under this provision, the

experience does not depend on the fact that it was obtained within a 40km radius of the surplussed employee’s headquarters; rather, it depends on the experience gained from work performed in a position previously held by the surplussed employee was the same or substantially similar to the work currently performed by a less senior employee. I think it gives a fair and reasonable interpretation to seniority rights.

The logic of Hutt applies equally to the case before me. I am thus persuaded by the union’s position and so declare that in interpreting Article 20.4.1.5, the employer shall consider experience obtained as required under the Article, both within and beyond the 40km range of the surplussed employee’s headquarters.

Dated at Toronto, this 9th day of May, 2002.