Ontario Public Service Employees Union (Bouchard) v. The Crown in Right of Ontario (Ministry of the Environment), 2002 CanLII 45790

GSB#1587/98

UNION#99C021

Under

Before

BETWEEN

Ontario Public Service Employees Union

(Bouchard)

Grievor

-and-

The Crown in Right of Ontario

(Ministry of the Environment)

Employer

BEFORE Richard Brown Vice-Chair

FOR THE UNION Don Martin

Grievance Officer

Ontario Public Service Employees Union

FOR THE EMPLOYER Len Hatzis

Counsel

Management Board Secretariat

HEARING January 15 & October 15, 2002.

DECISION

In a grievance dated December 11, 1998, Michel Bouchard objected to the ministry’s refusal to recall him from layoff to fill a vacancy in the position of EO4 abatement officer. This decision deals exclusively with the issue of whether the question posed by this grievance is the same as the one already answered in a decision of this board dismissing an earlier grievance by Mr. Bouchard on the ground that he was not qualified to displace a junior employee working as an EO4 abatement officer. The parties agree this grievance would be barred by the doctrine of issue estoppel if the question raised by it is the same as the one previously decided.

Mr. Bouchard’s first grievance, dated January 24, 1997, was dismissed by me in Ontario Public Service Employees’ Union (Bouchard) and Ministry of Environment and Energy, decision dated September 9, 1999, GSB File No. 0055/97. The facts giving rise to that grievance and the issue between the parties are summarized in the first two paragraphs:

Michel Bouchard was employed by the Ministry of the Environment as an air quality technician in Cornwall from 1979 until 1997 when his position was declared surplus. He received a surplus notice in January and ceased working in July. As an air quality technician, Mr. Bouchard was classified as an environmental officer 4 (EO4). After receiving the surplus notice, he declined an offer of employment as a bilingual senior environmental officer at the Spills Action Centre (SAC) in Toronto, also an EO4 job. The union contends Mr. Bouchard was qualified to work as an EO4 abatement officer and, therefore, should have been allowed to bump the least senior abatement officer in Cornwall. Marc Robert, an abatement officer at that location junior to the grievor, attended most days of the hearing and participated actively when in attendance.

The sole issue is whether Mr. Bouchard was “qualified” to work as an abatement officer within the meaning of article 20.4.1 of the collective agreement. In contending Mr. Bouchard met this standard, the union advanced two arguments. The first contention is that the grievor was qualified to work as an EO4 abatement officer without any additional training. In the alternative, the union contends he would have been qualified if given the training offered to all employees who assume the role of abatement officer. According to this alternative argument, the grievor was qualified within the meaning of article 24.4.1 because he was no less qualified than some one appointed to fill a vacancy who would be offered this training. (page 1)

Having reviewed the evidence, I turned to the union’s first submission and stated:

The union’s primary argument is that the grievor meets the test of “present ability” expounded in OPSEU (Loebel) and Ministry of Municipal Affairs and Housing, dated Feb. 15, 1983, GSB. No. 331/82 (Verity). Speaking for the majority in Loebel, Mr. Verity wrote:

To determine if a surplus employee is qualified to perform the work pursuant to Article 24.2.3, the Board accepts Management’s argument of “present ability” to the extent of minimum competence in all components of the job requirements. To adopt any higher test of present ability would be to destroy the significance of Article 24.2.3. That Article has been mutually agreed upon by the Parties to benefit surplus employees by affording them certain preferential rights of appointment. Few, if any, surplus employees would succeed in moving from one Ministry to another if the accepted test were more stringent than minimum competence in all of the major components of the job. (pages 21 and 22; emphasis added)

Mr. Verity went on to address the matter of training:

There is no doubt Dr. Loebel could have become qualified to perform the job in time. However, that is not the issue before this Board. In the present wording of article 24.2.3 there is no provision for a familiarization or training period. (page 23; emphasis added)

In January of 1997, did Mr. Bouchard have the “present ability” to work as an EO4 abatement officer? ...

The foregoing analysis leads me to conclude Mr. Bouchard did not have the required understanding of industrial and municipal enterprise and of environmental law and procedure. In the words of Loebel, he lacked the “present ability” to function as an E04 abatement officer. (pages 14 to 16)

The union’s second submission was that the “present ability” test in Loebel did not apply to the grievor. Addressing this contention, I wrote:

The union’s alternative argument is that the Mr. Bouchard falls within an exception to the test of “present ability.” In this regard, Counsel referred to a series of cases beginning with OPSEU (Hill and Campbell) and Ministry of Labour, dated Oct. 12, 1984, GSB No. 492/83 (Roberts), a case involving vacant positions. Having been declared surplus, the two grievors sought work as occupational health and safety officers. All candidates appointed to this position underwent a ten-week training course. The argument advanced by the employer in Hill and Campbell was summarized by Mr. Roberts as follows:

Here, the Ministry was not looking for “present ability”; rather it was looking for an employee who would possess “present ability” upon completion of a mandatory ten-week training course which was required to be completed by all persons hired as Occupational Health and Safety Officers. It was acknowledged that if either of the grievors had been successful, they would have been put through this course. (page 19)

In other words, the employer conceded the grievors should not be deemed unqualified merely because they had not completed the ministry’s training program. The employer’s argument was that the grievors lacked the basic qualifications required to be hired and undergo this training. Mr. Roberts agreed with respect to one grievor but not the other. Given the employer’s concession about it’s training program, the board was not called upon to decide whether the lack of such training rendered an employee unqualified, and Mr. Roberts refrained from doing so. Accordingly, if Hill and Campbell recognizes an exception to the test of “present ability”, one which applies where all new appointees undergo mandatory training, the exception was created by way of employer concession rather than Board ruling. It might be noted the concession was made in the context of a surplus employee filling a vacancy, not in the context of one employee displacing another. ...

The last case in this series, and the one upon which union counsel relies most heavily, is OPSEU (Bazinet) and Ministry of Environment and Energy, dated April 14, 1998 (Mikus). The grievor in that case sought to displace an investigations officer after being declared surplus. All employees appointed to this position took six weeks of training, two weeks at the outset and the remaining four weeks spread over the course of two years. The employer contended the grievor was unqualified because he did not know what was taught during the first two weeks. Having reviewed the relevant legal principles and the evidence, Ms. Mikus applied the law to the facts before her. She first ruled Mr. Bazinet was qualified to do the job he desired without any training:

In summary, given the wide range of duties set out in the job specification [the employer’s] few areas of concern are not sufficient to conclude the grievor is unable to do the core requirements of the job. It is my view that is simply a matter ... of supervision rather than training (page 44).

Having decided the grievor already had the ability to do the job, Ms. Mikus could have allowed the grievance without saying anything about what should happen in the hypothetical situation of a grievor who would acquire this ability only after further training. Nonetheless, she went on in the next paragraph to address this issue in the following obiter ruling:

In any event, like the Hill and Campbell case, the Employer has a mandatory training program which all employees must attend. ... If the first two weeks are a mandatory program similar to that in the Hill and Campbell case, the grievor will no doubt be required to attend those two weeks of training before assuming any job duties. There is no question in my mind that, after the first two weeks, he would be capable of performing the core duties of the job without difficulty. (page 44)

Before these obiter comments in Bazinet, the Board had not ruled upon any exception to the Loebel standard. The employer acknowledged an exception in Hill and Campbell in the context of a vacancy, but there was no clear acknowledgement of an exception in Smith in the context of a displacement. The obiter ruling in Bazinet took the exception conceded in Hill and Campbell, in the setting of redeployment to a vacant position, and applied it to displacement of an incumbent employee. The ruling was made without acknowledging this factual distinction and without considering whether it was significant. The propriety of such an extension merits consideration.

There is a compelling rationale for recognizing an exception to the present ability test in the context of a vacancy in a position for which training is mandatory. When a position is vacant, whoever is appointed to fill it would have to be trained. A surplus employee is no different than anyone else in this respect. It would be absurd for the employer to argue the surplus employee is unqualified because he or she lacks training which every other candidate also lacks, because no-one would be qualified according to this argument. This absurdity probably explains the concession made by management in Hill and Campbell.

When there is no vacancy, the situation is different. As the incumbent has completed the mandatory training, there is no need to train anyone, unless the incumbent is displaced by the surplus employee. In the context of a displacement, it is not absurd for the employer to argue the surplus employee is unqualified because he or she requires training which the incumbent already has. In other words, the same rationale does not exist for a departure from the normal standard of “present ability” set out in Loebel.

This standard was established at least fifteen years ago and has not been changed in collective bargaining in the intervening years. In the absence of some absurdity, an arbitrator has no authority to modify a long-established rule which the parties to the collective agreement have seen fit not to alter in successive rounds of negotiations. Accordingly, I am bound to apply the ruling in Loebel to the grievance at hand. (pages 16 to 20)

The Court of Appeal succinctly restated the elements of issue estoppel in Rasanen v. Rosemount Industries Limited (1994), 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267:

The proceeding before us involves issue estoppel. Lord Guest summarized the requirements of issue estoppel as follows in Carl Zeiss, supra, at p. 935:

that the same question has been decided;
that the judicial decision which is said to create the estoppel was final; and
that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

The proper inquiry in deciding whether the requirements have been met is whether the question to be decided in these proceedings is the same as was contested in the earlier proceedings and was, moreover, so fundamental to the decision that it could not stand without the determination of that question.

III

Both of Mr. Bouchard’s grievances were filed under the 1994-98 collective agreement. The first was decided under article 20.4 entitled “Displacement.” The relevant portions state:

20.4.1 An employee 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:

(a) 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:

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

(ii) the surplus employee is qualified to perform the work of the identified employee. (emphasis added)

The instant grievance arises under article 20.6, entitled “Recall.” The relevant portions state:

20.6.1 A person who has been laid off is entitled to be assigned to a position that becomes vacant within twenty-four (24) months after his or her layoff provided that:

(a) the vacant position is in the same classification and ministry as his or her former position; and

(b) the vacant position is within a forty (40) kilometre radius of his or her former headquarters; and

(d) there is no other person who is qualified to perform the required duties, who has a greater length of continuous service and who is eligible for assignment to the vacancy either pursuant to Article 20.6 or Article 20.5 (Redeployment). (emphasis added)

The ministry contends there is no difference in meaning between “qualified to perform the work of the identified employee” in article 20.4.1(a) (ii) and “qualified to perform the required duties” in article 20.6.1 (c). The ministry also submits the case law has utilized the “present ability” test not only in the context of displacement of a junior employee but also in the context of redeployment to a vacant position. Counsel for the ministry notes Loebel applied this test to redeployment and my decision on Mr. Bouchard’s first grievance applied the same test to displacement. Based on the premise that recall is analogous to redeployment, insofar as both entail an employee claiming a vacant position, counsel argues the case law dictates that both be governed by the test of “present ability.”

The union submits the “required duties” in article 20.6.1 (c) are only a subset of those comprising the “work” in article 20.4.1(a). In addition, I was asked to view recall differently than displacement or redeployment, because recall represents “the last chance of an employee already on layoff.” The union also relies upon the second and third last paragraphs of the foregoing passage from my earlier decision, where I drew a distinction between claiming a vacant position and seeking to displace a junior employee, a distinction applicable to the Hill and Campbell exception to the “present ability” test.

In general, this board has taken the same approach when assessing a surplus employee’s qualifications to claim a position through either redeployment to a vacancy or displacement of someone with less seniority. The “present ability” test was applied to redeployment in Loebel and to displacement in my decision on Mr. Bouchard’s first grievance. As recall is analogous to redeployment, in the sense that both involve filling a vacant position, the “present ability test” generally should be applied to recall.

There is an important exception to the general rule that the “present ability” test is utilized to assess qualifications when dealing with displacement, redeployment or recall. In Hill and Campbell, the employer conceded this test did not apply to a vacancy for which any successful candidate would have to be trained. In my decision on the first grievance, I explained why such an exception was warranted when a surplus employee claims a vacancy but not when such a person seeks to displace someone else. This explanation warrants repetition because it is central to a determination of whether the present grievance is barred by issue estoppel:

In short, where training for a position is mandatory, the present ability test applies to displacement of a junior employee but not to filling vacancies. In other words, where there is mandatory training, the question arising from a displacement grievance is different than the one arising from a grievance about redeployment or recall.

In the case at hand, there is a factual dispute as to whether employees appointed to the position of abatement officer EO4 undergo mandatory training. My first decision summarized the evidence led on this subject:

In addition to completing the courses taken by Mr. Bouchard, new abatement officers take a number of other ministry courses and work under the watchful eye of those with more experience. Some officers start doing abatement work at the EO2 level, others at the EO3 level and still others at the EO4 level. Whatever the point of entry, new abatement officers undergo a training program comprised of a series of 100 level courses, offered by the ministry, and on-the job tutelage from seasoned officers and supervisors. New officers take the full range of 100 level courses with minor exception. An officer may be exempted from a course if his or her background renders it redundant. (pages 8 and 9)

Having concluded that the “mandatory training” exception to the “present ability” test did not apply to displacement, I was not required to make any factual determination as to whether training for the position of abatement officer EO4 was mandatory, and I did not do so in my earlier award.

My conclusion can be briefly summarized. The question posed by Mr. Bouchard’s recall grievance would be the different than the one posed by his earlier displacement grievance if there was mandatory training for the position of abatement officer EO4 at the relevant time. The two questions would be the same if there was not mandatory training. A final ruling on the application of the doctrine of issue estoppel to the second grievance must await a resolution of the factual dispute relating to training.

Dated at Toronto this 30th day of October 2002.