GSB# 0493/01

UNION# 01B200

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hamilton)

Grievor

• and -

The Crown in Right of Ontario (Management Board Secretariat)

Employer

BEFORE

Deborah Leighton

Vice-Chair

FOR THE UNION

Richard Blait Ryder Wright Blair & Doyle Barristers and Solicitors

FOR THE EMPLOYER

Sean Kearney Counsel Management Board Secretariat

HEARING

March 3 & 4, 2003.

DECISION

Mireille Hamilton grieves that she was unjustly dismissed from her position as Data Processor Technician 4 (DPT4) at the Kingston Regional Computer Centre (KRCC), Management Board Secretariat. The union takes the position that the grievor’s employment should have been converted from unclassified to classified employment pursuant to article 31.15.1.1 of the collective agreement between the parties (1999-2002). The employer takes the position that the termination was proper since at the time of termination there was no work for the grievor.

Ms. Hamilton worked as a summer student at KRCC in the summer of 1993 and 1994. From 1995 to 1999 she worked in a series of contracts as a temp. On June 1, 1999 she was appointed to an unclassified contract for 6 months. Her contract was renewed 3 more times, the last contract beginning on December 1, 2000 and ending May 31, 2001. There is no issue between the parties that the grievor worked for two years between June 1, 1999 and May 31, 2001 on a full-time basis. The only issue is whether or not the evidence supports whether there was a continuing need for the work that she had done as a DPT4.

The evidence established that the KRCC operates seven days a week, twenty-four hours a day. The staff compliment includes four shifts of workers including in each shift a DPT7 or senior data processing technician and three DPT4s. There is also a DPT4 who worked straight days in the library. Patrick Mattson, Operations Manager for the unit, testified that he was responsible for supervising the DPTs at KRCC. He testified that the required compliment of DPTs was seventeen positions. This was the compliment in 2001 and it remains the compliment required to run the centre. The grievor was hired by Doug Adam in 1999. Mr. Adam retired in the fall of 1999 and Mr. Mattson took over supervision of this unit at that time.

In April of 2001 Mr. Mattson decided and got permission to run a competition for the DPT4 vacancy in the library. Both the grievor and Mike Wiley also hired at the same time as the grievor applied for the position. Mr. Wiley was successful in getting the library DPT4 position. A DPT7 position had been vacant since the fall of 2000. Mr. Mattson testified that he used this DPT7 position to cross train DPT4 employees in order to give them an opportunity to apply successfully for the promotion. Mr. Kenneth Morton was given cross training opportunities from the fall of 2000 when the position became vacant until his appointment in October of 2001 to the position, after successfully competing in a competition.

There was also evidence that two DPT4s Donald McGrath and Bonnie Munnings left the workplace shortly after the grievor’s employment was terminated. The grievor gave evidence that Ms. Munnings was actually away from the workplace for personal reasons for several weeks before the grievor’s last contract ended. Ms. Munnings sought a long leave of absence in July 2001 for personal reasons. Mr. Mattson testified that Mr. McGrath began taking sick leave on a week-to-week basis beginning on June 1, 2001 until he resigned in August of 2001. Thus Mr. Mattson found himself in the position of having to hire two temporary employees from an agency in August 2001 to backfill these two positions. Mr. Mattson testified that he could not do without a full compliment of DPT4s and thus it was necessary to bring in two temporary DPT4s as soon as possible to get the work done. He acknowledged that senior staff did not take the need for permanent staffing in this unit seriously. He also acknowledged that it often took up to a year and a half to get approval for posting vacant positions and in the meantime he was required to deal with temporary staff to cover the work.

Mr. Mattson also acknowledged in cross examination that from the time the DPT7 position was vacated in the fall of 2000, it was clear that it would have to be filled. As noted earlier, Mr. Mattson used the position for cross training to allow his DPT4s to be in a good position to be promoted into the DPT7 position. The competition itself was a closed competition restricted to forty kilometers from Kingston. Only four DPT4s applied and as noted earlier, Mr. Morton was successful.

SUBMISSION OF THE UNION

Counsel for the union, Mr. Richard Blair, noted that there is no issue between the parties that the grievor meets the requirement of article 31.15.1.1 of working two consecutive years on a full-time basis. Counsel argued that where there is a continuing need for the work then unclassified employees who have done two years of full-time service have a substantive right under article 31 to be converted to classified status. Counsel argued further that the grievor in this case should have had the benefit of article 31.15.1.1 because there was evidence to support a continuing need for the work.

Ms. Hamilton performed work of a DPT4 on a shift schedule that was the same through 1999 to 2001 as it is currently. In counsel’s submission the evidence established a compliment of DPT4s and DPT7s on each shift, one DPT4 occupying a position in the library for days only. Counsel argued that the evidence from Mr. Mattson was clear that the need for staff was acute. When the operations manager did not receive approval to post a vacant position quickly enough he had to use temporary agency people to backfill. This evidence did not support a finding that temps were used as a stopgap or for extra work but rather indicates that the work is of a continuing nature. That is the operation could not function without all the positions being filled.

Mr. Blair noted that the employer’s only reason for terminating Ms. Hamilton was that there was no vacant DPT4 position available at the end of May 2001. However it was clear from the fall of 2000 when the DPT7 position became vacant that it would have to be properly staffed. Mr. Mattson acknowledged that the natural career path to a DPT7 was from the DPT4 position. Counsel argued that in fact Mr. Mattson cross trained DPT4s to ensure that one of the DPT4 employees would be promoted to the DPT7 position. Mr. Morton who ultimately was successful in getting the DPT7 position spent considerable time in an acting DPT7 position from fall 2000 until he was successful in the competition and promoted to the DPT7 in October of 2001, leaving a DPT4 position vacant.

Mr. Blair argued that since Mr. Mattson acknowledged that it was a foregone conclusion that candidates for the DPT7 position would come from the DPT4 employee pool, then it was a foregone conclusion that there would be a DPT4 position that would need to be filled on a permanent basis. Counsel noted that the decision that the DPT7 position vacated in fall of 2000 needed to be filled was made in the fall of 2000, well before the grievor’s employment was terminated in May 2001. Counsel for the union cited grievance settlement board case law pertaining to article 31.15.1.1 and its predecessor for the principle that the article created rights in the union and employees that cannot be defeated by simply permitting the employer to submit that no decision has been made as to whether there is a continuing need for the work. Thus it is not the employer’s characterization of whether there is a continuing need but what the facts of the case support. Counsel cited OPSEU (Union Grievance) and the Crown in Right of Ontario (Ministry of Correctional Services), GSB 803/91 (Dissanayake); OPSEU (Burditt) and the Crown and Right of Ontario (Ministry of Health), GSB 1179/96 (Briggs); OPSEU (Union Grievance) and the Crown and Right of Ontario (Ministry of Transportation), GSB 0211/02 (Brown).

In summary, counsel argued that Ms. Hamilton’s case was not as the employer suggested merely a case of “bad timing” such that she cannot avail herself of the substantive protection of article 31.15.1.1. Counsel argued that the employer planned, managed, and controlled the process taking over one year to staff up the DPT7 position that became vacant in the fall of 2000. Given that it was management’s evidence that it was a foregone conclusion that the DPT7 position would be filled from someone in the DPT4 classified positions the employer cannot now rely on this manipulation to rebut the contention that there was continuing need of the work. Counsel argued that it cannot be the intention of the parties that article 31.15.1.1 be circumvented in this way leading to the result that two temporary agency employees hired two months after Ms. Hamilton’s employment was terminated got the work.

EMPLOYER’S SUBMISSION

Counsel for the employer, Mr. Sean Kearney, argued that while the allegation of bad faith had been withdrawn by the union the language of the argument still implied that the employer had done something wrong. Counsel argued that the evidence established that there were valid reasons to run a competition for the vacant DPT4 library position. Counsel argued that in April 2001 the compliment of DPT4s was filled with classified staff: Mr. Morton, Mr. McGrath, Mr. Santyr, Ms. Solenthaler and Ms. Morgan. There were also two unclassified staff, Mr. Wiley and Ms. Hamilton. Since a DPT4 position as data librarian had been vacant for a long time the employer ran a competition to fill that position. Mr. Wiley was successful.

Mr. Kearney argued that the union was missing the point in its argument. Counsel submitted that conversion cases show as well as the language of the collective agreement that the employer may look at whether there is a continuing need for the grievor’s work. Counsel argued that management reviewed the needs of the department and made a determination. It is the factual circumstances at the time the employment ends that is important and the question to be asked by the board is whether it was reasonable for management to act as it did. Counsel argued further that there is no automatic right to conversion from unclassified to classified anytime there is a vacancy. Continuing need depends on the need for the position to be filled right away. Further, counsel argued that decisions of the board did not support the principle that the grievor had a right to be converted because there was a vacancy in a senior position.

Counsel argued that the employer was taken by surprise when Mr. McGrath, who had begun calling in on a week-to-week basis on June 1 on sick leave resigned at the end of July. Likewise although Ms. Munnings had begun to take time off before Ms. Hamilton left the workplace, counsel argued that the employer had no way of knowing that in July she would ask for a long term leave of absence for personal reasons. Thus counsel argued that management had to backfill both those positions in August 2001 but there was no plan or contrivance here to avoid giving the grievor a permanent position. Mr. Mattson had no axe to grind with the grievor.

Counsel relied on the decision of vice-chair Brown in Union Grievance 0211/02, quoting vice-chair Dissanayake in the Lynch-Burrus case wherein the board, in interpreting “continuing need” said that it must be assessed on “the basis of objective facts as to what the employer did with the work in question.” Counsel argued that there was no need for Ms. Hamilton’s work to be continued. Counsel argued that the overriding question for the board was to look at Mr. Mattson’s determination in 2001 to terminate the grievor’s employment and decide whether that decision was appropriate. Counsel argued that based on the evidence on the whole it was appropriate.

Counsel submitted that the board must look at the department as a whole and what secondments were in place, projects etc. Counsel argued further that if a permanent position was vacant for a while that this was the nature of the service. That is, it takes time to get approval for posting. Thus the grievance should be dismissed.

Finally, counsel argued that the remedy requested is problematic because the compliment of DPT4s is currently full. Counsel noted that two positions for DPT4s had recently been filled for which the grievor did not compete. Thus the employer had a difficulty with the remedy which was being requested.

UNION SUBMISSION ON REPLY

Counsel for the union noted that the question before the board is whether or not there was continuing need for the work that Ms. Hamilton was doing. He noted that the case turned on special facts and the evidence here is different than the average conversion case. Counsel argued that it was not his argument that it was a foregone conclusion that the DPT7 position be filled by a DPT4 thus leading to a vacancy but it was the evidence of Mr. Mattson that this was so. Since it was clear that a DPT4 position would be vacant as soon as the DPT7 position was filled and this decision was made well before the grievor’s employment had been terminated at the end of May 2001 then it is clear that the work was going to continue. Counsel argued that all that Mr. Mattson determined in the spring of 2001 was that he was not going to keep Ms. Hamilton, because he knew that the work would continue as soon as the position of DPT7 position was filled.

With regard to the employer’s submission on remedy counsel for the union argued that the employer could not rely on Ms. Hamilton not applying for the two recently filled positions because she was unaware that they were available. This does not change the grievor’s right to be reinstated to a full time position as a DPT4. Thus counsel asks for the grievance to be granted, the grievor to be reinstated with full back pay, to be put in the position she would have been put into had she been converted on June 1, 2001 less any mitigation.

DECISION

The issue before me is whether or not having completed two full years as an unclassified staff on May 31, 2001, Ms. Hamilton was entitled to be converted into a classified DPT4 position. Both parties acknowledged that it was clear that the grievor had completed two full years of employment and the only issue before the board was whether or not under article 31.15.1.1. there was a continuing need for that work. Article 31.15.1.1 in the collective agreement (1999-2002) between the parties provides as follows

Where the same work has been performed by an employee in the Unclassified Service for a period at least two (2) consecutive year, except for situations where the unclassified employee is replacing a classified employee on a leave of absence authorized by the Employer or as provided for under the Central Collective Agreement, and where the ministry has determined that there is a continuing need for that work to be performed on a full time basis, the ministry shall establish a position within the Classified Service to perform that work.

Vice-Chair Brown’s analysis in Union Grievance, supra is helpful in explaining how this board has considered the issue of continuing need for the work.

The task of an arbitrator applying article 31.15.1.1 is not to review a determination made by the employer. The task is to decide what determination the employer has made. This arbitral decision must be made by weighing the facts, not by rubber stamping a ministry’s formal pronouncements, as has been repeatedly stated in earlier decisions of this board. (at p.14)

Having carefully considered the evidence in this case I am persuaded that there was a continuing need for Ms. Hamilton’s work. The facts of this case are not typical of most conversion cases where the issue is often whether the work in question is short term, project or permanent work. The work of the DPT4 has not changed since 1999. The evidence of the employer’s own witness was that he needed a fully staffed compliment of DPT4s. Mr. Mattson’s evidence was that he had approval in the fall of 2000 to fill a DPT7 position and that it was a foregone conclusion that this position would be filled with a DPT4, thus leaving a vacant DPT4 spot. Thus when he terminated Ms. Hamilton’s contract it was clear that there would be DPT4 work continuing.

This board has held that where the grievor’s work has been performed for a substantial period a “rebuttable presumption” arises that there is a continuing need for the work, OPSEU (Union Grievance), supra at 14 (Vice-Chair Dissanayake). As noted earlier the facts of this case are unusual. The employer knew that the DPT7 position was to be filled and intended to fill it from the DPT4 ranks. One of the DPT4 employees was acting in the DPT7 position when the grievor’s contract was terminated. There is no evidence before me to rebut the presumption that there was an ongoing need for the grievor’s work.

I should make it clear that I do not rely on the evidence that two DPT4 employees left shortly after Ms. Hamilton’s contract ended, except insofar as it shows the employer moved quickly to fill these positions with temp agency staff, because the work had to be done.

Having found that the evidence supports a continuing need for the grievor’s work, it follows that Ms. Hamilton was entitled to be converted to a classified employee on June 1, 2001. Thus the grievance is allowed. The employer is hereby ordered to reinstate Ms. Hamilton, with seniority, full back pay, less any earnings during the period, and compensation for loss of benefits. I shall remain seized to address any issues which may arise regarding implementation of this award.

Dated at Toronto this 2^nd day of July, 2003