GSB#2008-1932

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Wells)

Association

• and -

The Crown in Right of Ontario (Ministry of Revenue)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Tim Gleason Sack Goldblatt Mitchell LLP Barristers and Solicitors

FOR THE EMPLOYER

Felix Lau Ministry of Government Services Legal Services Branch Counsel

HEARINGS

February 12, July 27, July 28, November 25, 2009, January 26, July 22, 2010.

Decision

The Proceedings

1This dispute arises under article 18.8.1(e) of the AMAPCEO collective agreement. Corrine Wells was employed as a “business analyst” (hereafter BA) for a period of time with the Ministry of Revenue. Her home position was in the OPSEU bargaining unit. Article 18.8.1(e) provides for the roll-in’ of employees temporarily in AMAPCEO positions to permanent status if its criteria are met. The Association says that they were met; the Employer says that they were not met. Article 18.8.1(e) reads as follows:

18.8.1 Vacancies may be filled without competition upon clearing surplus under

the following conditions:

Effective until July 31, 2007

(e) the employee was temporarily assigned to the position which had been filled through a competitive process and the employee had been acting in the position for at least twenty-four (24) months in which case the employer may assign the employee to the position on a permanent basis;

Effective August 1, 2007

(e) where an employee was temporarily assigned to a position for at least twenty-four (24) months and:

(i) the position has been filled through a competitive process, and

(ii) at that point in time, there is a continuing need for the work to be performed on a full time basis for greater than an additional twelve (12) months, and

(iii) the position does not have a home incumbent,

the Employer shall, with the employee’s agreement, assign the employee to the position on a permanent basis. If the employee does not agree, the Employer shall post the vacancy and the employee shall return to his/her home position.

If at the end of twenty-four (24) months an employee was not offered an assignment to the position on a permanent basis because the conditions of 18.8.1(e) were not met, but the position continues for 12 months, then the Employer shall, with the employee’s agreement, assign the employee to the position on a permanent basis at the conclusion of this 12 month period. If the employee does not agree, the Employer will post the vacancy and the employee shall return to his/her home position.

2This was new language in the collective agreement which became effective August 1, 2007, prior to which the Employer had the discretion to appoint an employee, on a permanent basis, if they had acted in a position for 24 months, which they had filled through a competitive process.

The Facts

3For the sake of efficiency, the Employer agreed to call its evidence first, without prejudice to its position that the Union bore the burden of proof.

4The Employer called Angela Merlo, who held a number of acting managerial positions during the relevant periods. She said that the BA Job Specification was generic across a number of substantive tax areas, however each different tax area might require specific knowledge for the BAs to be able to work in the area. She said that the grievor was successful in a 2005 job competition in which a number of employees were hired as BAs to provide business support to operational tax officers. That competition anticipated that the temporary positions would last 24 months. Two of the positions in that competition had permanent funding, so were filled on a permanent basis. The remaining six successful candidates were offered different, substantive, temporary positions following managerial review. Ms. Wells was placed in the Quality Service Unit (QSU), Services & Revenue Control Section (SRCS) of the Retail Sales Tax Branch (RSTB) effective April 13, 2005. In June 2005, RSTB merged with Employer Health Tax (EHT). SRCS ceased to exist and the Policy & Business Services Section (PBS) took its place.

5In April 2007 the creation of the Client Accounts and Services Branch (CASB) was announced, which realigned the operational duties and responsibilities, and programmes, from a substantive, statute-based model to a functional basis. That is, rather than being organized in specific tax silos, such as Retail Sales Tax, all the different tax silos would be administered together to provide “one stop shopping” for the clients.

6In September 2007, further refinements to the organizational structure were announced. Ms. Merlo testified that the functions of the Quality Services Unit, into which the grievor had been hired, continued in different areas, and some were discontinued. On September 12, 2007, Ms. Wells was notified that her position was being realigned to Program Coordination, Business Development and Support (BDS). That notice reads as follows:

Today I announce the details of phase one of CASB’s new organizational structure which includes the implementation of the Business Development & Support, the Centralized Programs & Refund Applications, and the Client Outreach sections.

As a result of phase one implementation, a number of activities will be realigned within CASB, involving a number of reporting relationship changes. Effective October 1, 2007 the Business Analyst position in Quality Services, Policy & Business Services will be realigned to Program Coordination, Business Development & Support, and will report to the Manager, Analysis & Program Development.

7Ms. Merlo testified that while the reorganization was taking place the end of the 24 month term of the temporary positions was drawing near. Approval was sought, and obtained, to post a new competition in order to continue those positions. The posting was for all the existing temporary BA positions and the new positions were to be for up to 24 months. Ms. Merlo expected such a continuing need and had funding for the positions until spring 2009. That competition process was put on hold because in early April 2007 the language of the collective agreement relating to roll-ins was renegotiated and there was uncertainty as to the effect of the new language. Clarification was sought from Human Resources as to the impact of the new language. In the result, the temporary positions were extended by three months while she awaited corporate direction from Labour Relations.

8Not surprisingly, the holders of the temporary positions, including Ms. Wells, were concerned about the impact these changes would have on them. The minutes of a staff meeting of the Policy and Business Services section (PBS), held on May 2, 2007, record the following discussion:

Update – Topic(s) from Previous Minutes

Subject: CASB Reorganization Presenter: Bruce Carmichael

• Next stage to launch summer 2007. No specific time line.

• Managers are to report function types within their units. e.g. administrative, projects, systems, manuals

i. Jean will develop an inventory of APD and QSU functions. She will start visiting staff today.

ii. Judy will develop an inventory for BIU

• There is a Business Development and Support (BDS) design team to discuss sectional business needs within the scope of going functional. The team consists of:

• Bruce Carmichael, Judy Sutherland, Steve Bridcut, Brenda Lee, Eric Lam, Laura Duggan, Ron Bell

• Bruce sees PBS units as a good model.

• PBS staff will be involved in focus groups within the next 2 months to provide input as to what will/won’t work.

• Deb H., Jean and Helen have already attended meetings.

Subject: AMAPCEO MOU Presenter: Angela Merlo

• Angie has not received any more information with respect to the provisions of the MOU which was just endorsed. i.e. roll-ins

• AMAPCEO reps have so fare indicated, but are not positive, positions for roll-in must be permanently funded.

• B/A temporary positions have been funded until 2009

• Angie to also pursue roll-in to temporary B/A positions.

• Answers to reorganization questions (non-personal) that were forwarded to Maud will be posted on the website.

• It was mentioned that one question regarded the reorganization announcement stating no job losses will occur. This has been interpreted by some staff to mean that all current positions are needed now and in future so the question of permanent funding was raised. Angie explained this statement to mean that no positions will be lost at this time as funding for temporary B/A’s has been extended to 2009.

• CTAR lateral transfers should not effect any roll-in provisions that may become available for AMAPCEO positions.

• Based on today’s workload, projects, initiatives and priorities, Angie believes that the current B/A positions (permanent and temporary) will continue to be needed.

• Management will advise PBS B/A’s when current competition will proceed

• Steve Bridcut is aware of the issues and concerns surrounding on-going temporary funding.

9Ms. Merlo testified that the staff was told that there was a need to continue working on the projects and initiatives then underway. That was not to say that all of the current positions would continue to exist, because of the reorganization. However, the reorganization was not a job reduction strategy. The work being done was ongoing. She felt secure in saying to the staff that the work would carry on since management did have the funds for it through to 2009. Seemingly, while the Ministry’s organization was in a state of flux around her, Ms. Wells did the work of a BA. Her job description stayed the same. Her pay-rate did not change.

10Ms. Merlo also clarified that the second bullet under the subject “AMAPCEO MOU” in the minutes of the meeting was not a representation made by an AMAPCEO representative, but a statement made by one of the BAs in attendance at the meeting.

11The Employer also called Eric Lam to testify. He was the grievor’s supervisor in April 2008 when her assignment ended. He became the acting manager of the Program Development Unit when it was created in October 2007. He asked his new staff members to provide a list of their assignments. In his evidence he reviewed the list provided by Ms. Wells. He had a surprisingly superficial understanding of many of Ms. Wells’ assignments and in his evidence also generally disparaged her work as not being that of a BA. His evidence was seriously undermined in his cross-examination. He did say that prior to her joining his section she may have been doing the work of a BA. He also said she did some BA work for him subsequently and that others assigned her work as well. He never told her, or other managers, at the time, that he did not think her work was that of a BA. He testified that at the end of March 2008 she was let go because of a funding issue. He said he was somewhat surprised to learn her BA position was discontinued and may have told her he would try to get her back.

12Mr. Bridcut also testified. He gave evidence regarding the reorganization. He said that for the first five months following the creation of CASB the previous operations were maintained. That was from May 2007 to September 2007. He said that he was aware that the language of article 18.8.1(e) had changed and that Ms. Merlo was waiting for an interpretation of the new language. While that interpretation was pending, the temporary BA contracts were extended at three-month intervals, so as not to disadvantage the staff. An interpretation was received in or about March 2008 from “someone in Strategic Management Services Branch” to the effect that anyone with more than three years acting in a position was to be converted to permanent status and for anyone with less than three years there was an obligation to determine whether there was ongoing work. At the same time, Mr. Bridcut said he was advised that the Divisional level would no longer fund any positions. It was up to him to find funding or eliminate the positions. Ms. Wells fell into the latter category. He said that he had discussions with the Strategic Management Services Branch (SMSB) regarding Ms. Wells’ position, amongst others, and the reasons she was hired in the first place. He and they determined that there was no ongoing need because of the reorganization; so, those positions, including Ms. Wells’ were terminated. There were five or six project manager positions terminated, fifteen to eighteen in the Corporate tax projects and four BA assignments. A manager’s position was also lost by the merger of two units. Mr. Bridcut also said in his evidence that the first time an assessment was made that there was no continuing need for Ms. Wells’ work was in February/March of 2008. His evidence relating to the PBS minutes of May 2007 was that it was before his time and that what Ms. Merlo said at the meeting was based on her knowledge at the time, which was accurate until February/March 2008, when he no longer had funding. The funding change came as a surprise to him. Had Ms. Wells been there longer than 36 months, she would have been rolled-in.

13In his cross-examination Mr. Bridcut was also taken through the complement of BAs in place after Ms. Wells’ position ended. Some of those positions worked under Connie Lee who was also called as a witness. Her evidence was to the effect that those BAs had specialized tax knowledge not possessed by Ms. Wells. In her view, the BAs working for here were in a very different role with more stress, complexity and detail than was required of BAs in any other area. She believed that the BA job specification mirrors what her BAs did. She thought there was an inequity in how highly rated the BA work outside her purview was, but it was not her role to correct such an inequity. Accordingly, it was her view that Ms. Wells was not capable of doing the BA work in Ms. Lee’s area. Her evidence was rather parochial.

14Ms. Wells testified for AMAPCEO. She reviewed her work history. She also said that she applied for the posting, which Ms. Merlo testified had been held in abeyance while Ms. Merlo waited for an interpretation of the new collective agreement language. Ms. Wells also said that it was her understanding from the May 2007 PBS meeting that she would be rolled into a permanent BA position.

Submissions of the Union

15The Union said that Ms. Wells was a BA for six years and is entitled to that classification on a permanent basis. The rolling-in of temporary employees was of such concern to AMAPCEO that new language was negotiated in the March 2007 Memorandum of Understanding. The new language was effective August 1, 2007 and the Employer may not rely on its own delay to escape the plain meaning of that language.

16The Union said that on the effective date of August 1, 2007 all of the requirements of article 18.8.1(e) were met, and the Employer was required to roll Ms. Wells into the BA position. She had filled the position through a competitive process, there was a continuing need for the work to be done for at least twelve months and the position did not have a home incumbent. The Union said that the Employer’s understanding of the continuing need for the work to be done is laid out in the PBS minutes of May 2, 2007. The statements made by the Employer at that meeting amounted to representations upon which Ms. Wells relied to her detriment; the Employer is estopped from terminating her BA position.

17The Union said that the Employer’s delay in making its decision brought into play the 36-month threshold in the clause, which obviates the requirement of continuing need. It also submitted that the Employer’s delays took Ms. Wells over that threshold. Accordingly, it said in the alternative that she had to be rolled-in at that point. The Union said that the evidence clearly disclosed that the employer sought to terminate her BA position at exactly 36 months, but it miscalculated. She began as a BA in the AMAPCEO bargaining unit on April 13, 2005 and returned to the OPSEEU bargaining unit on Monday April 14, 2008. AMAPCEO relied on the WIN Employee Action Request (WEAR form) of April 23, 2008, which indicates on its face that Ms. Wells returned to her home position on April 14, 2008. The evidence was said to establish that there was a continuing need beyond April 14, 2008. There was continued hiring of BA’s after April 14. The decision to terminate her BA position was taken to avoid its collective agreement obligations and for no other purpose.

18AMAPCEO relied on the following authorities: Re Council of Printing Industries of Canada and Toronto Printing Pressmen & Assistants’ Union No. 10 et al (1983), , 42 O.R. (2d) 404; Re Sherwood Co-operative Assn. Ltd. and R.W.D.S.U., Loc. 539, Re (1989), , 8 L.A.C. (4th) 265 (Priel); OPSEU v. Ontario (Ministry of Community and Social Services (1995), , 27 O.R. (3d) 135 (Div. Ct.); Ontario (Ministry of the Attorney General) and Assn. of Law Officers of the Crown (Del Junco) (Re) (2006), , 151 L.A.C. (4th) 409 (R. M. Brown); Pacific Press Ltd. v. Vancouver – New Westminister Newspaper Guild, Local 115 (Sheehan Grievance) (1987), , 31 L.A.C. (3d) 411 (Munroe).

The Submissions of the Employer

19The Employer submitted that the grievor needed 3 years in the position, and, although she was only short by a few days, she was not in the position for the required 3 years. She finished as a BA on April 11, 2008. The WEAR form relied upon by the Union is not a form completed by managers in the Ministry of Revenue. It was Mr. Bridcut’s intention that she finish as a BA on Friday, April 11, 2008. If there is a presumption as to her status over the weekend, it should be that she was in her OPSEU home position. That is buttressed by the fact that she had completed her 37.5 hour work week as of 5 pm, April 11, 2008. Further, the case-law relating to the OPSEU agreement may be used for guidance, and it has held that a week is seven days long. The AMAPCEO agreement speaks in terms of months not weeks. Ms. Wells needed three years and did not complete that period.

20As to the continuing need for the work as of August 1, 2007, that need must be for the next twelve months, not a few weeks as was the case as evidenced by the three month contract extension.

21As of August 1, 2007 there was no continuing need for her work. The Branch was being restructured in stages. Sections were being abolished and new sections were being created. The Employer also submitted that when Mr. Lam took over in the fall of 2007, one of his duties was to determine how the BA’s would fit into the new structure. When the new collective agreement language became effective, Mr. Bridcut was not yet in charge of Business Development and Support, and BDS had not yet been activated. Accordingly, it was submitted that in such a climate it could not be concluded that there was a continuing need for the subsequent 12 months.

22The Employer said that the contracts were extended at three-month intervals in good faith so as not to cause dislocation to the employees by returning them to their home positions while they waited for an interpretation of the new article. When the interpretation was received, the positions were ended.

23The Employer also submitted that there was no continuing need for her work in April, 2008. It relied on Eric Lam’s evidence. He was her supervisor on April 11, 2008 when her BA position was terminated. The Employer submitted that she was not doing BA work at that point and no one replaced her. It also said that Ms. Wells did not have the skills necessary to work as a BA in the corporate tax initiatives overseen by Ms. Lee. Further, the Employer said that the reference point for the determination of this matter is August 1, 2007, and new positions created in April 2008 do not help to determine current need as at August 1, 2007.

24As to AMAPCEO’s claim of estoppel, the Employer said that the conditions have not been met because no promise was made that all of the temporary employees would be rolled into permanent jobs. The highest that the representation reached was a promise to pursue roll-ins, which is not a promise that roll-ins will occur. In addition, the statement was made in the context of needing clarification of the new article. There was simply no clear promise made.

25The Employer relied upon the following authorities: OPSEU (Lynch-Burrus) and Ministry of Community & Social Services, GSB No. 1992-1078, February 8, 1995 (Dissanayake); OPSEU (Mistry) and Ontario Human Rights Commission, GSB No. 1996-0569, February 10, 1998 (Verity); OPSEU (Sinnathurai) and Ministry of the Attorney General, GSB No. 1996-0749, February 9, 1997 (Briggs); OPSEU (Trybus et al) and Ministry of Natural Resources, GSB No. 1994-0661, June 26, 1997 (Briggs).

The Submissions of the Union in Reply

26AMAPCEO said in reply that for an estoppel to be found it is not necessary for the Employer to have promised permanent jobs to all the temporary employees. It relies on the representation in bullet point number eight that the work will continue to be needed, which it says was never revisited. The Union says that representation came about in the context of Ms. Merlot’s evidence that she withdrew a posting. The representation was to reassure the employees that they need not worry about the postings.

27The Union also submitted that Mr. Lam’s evidence should be rejected. He only ever met with Ms. Wells once to discuss her work. His evidence and that of Ms. Lee that the grievor was not working at the level of a BA should be rejected. There was never any question she was doing the work of a BA. As to whether a week is seven days, the AMAPCEO agreement includes a Letter of Understanding that reference to a day or days means a reference to a working day. Accordingly, April 11 was the last day of her working year, which completed the 3 year period.

Reasons for Decision

28In my view, the appropriate time at which to consider Ms. Wells’ eligibility to be rolled-in to a permanent BA position is August 1, 2007, the day the new article in the collective agreement became operative. Although there was some mention in the course of the evidence of untimeliness of the grievance and possible expansion of the grievance if that were the appropriate date, those matters were not argued. I say only that it would be unusual for the grievor to suffer a penalty for her forbearance while she waited for the Employer to interpret the article’s meaning.

29As at August 1, 2007 a number of facts are essentially indisputable. First, Ms. Wells remained in the BA position for which she had successfully competed in April 2005. It was also a position without a home incumbent. There can also be no question that the BA work she was doing would continue to be needed at that point in time.

30The Employer’s position is that it first concluded sometime in the spring of 2008 that the work no longer needed to continue. It is not necessary for me to make a finding on the veracity or tenability of that position, and I decline to do so. The salient point in that evidence is that there was no doubt in Ms. Merlo’s mind, nor indeed in Mr. Bridcut’s mind, that in April 2007 there was a continuing need for the work to be done. Accordingly, between April 2007 and the spring of 2008 the Employer believed that the work continued to be needed. On that basis, there was a continuing need for the work to be done on August 1, 2007, being the relevant “point in time”.

31There can also be no real doubt that on August 1, 2007 Ms. Wells’ BA work would need to continue to be performed for greater than an additional twelve months. The evidence clearly establishes that the Employer posted Ms. Wells’ position for another 24-month term and that Ms. Merlo had funding for 24 more months. Ms. Wells applied for that position. Assurances were given at the meeting in May 2007 that there continued to be a need for the work into 2009, notwithstanding the ongoing reorganization. Other assurances were given that job losses were not anticipated as a result of the reorganization, funding was in place to 2009 and management would pursue the roll-ins. I find that, as at August 1, 2007, there was a continuing need for Ms. Wells’ BA work to be performed on a full time basis for greater than an additional twelve (12) months.

32Clearly Ms. Wells wanted to be, and still wants to be, assigned as a permanent BA. The Employer was obliged by the collective agreement to offer her such a position. It is no answer that its dilatoriness resulted in a changed outlook at a time well after the relevant time. The Employer’s decision to not roll the grievor into a permanent BA position was unreasonable and not bona fide.

33The Employer is hereby ordered to assign Ms. Wells to a permanent BA position, effective for all purposes as of August 1, 2007. She is to be made whole for any losses. I remain seised to deal with any outstanding issues.