GSB#2004-1839

UNION#2006-0604-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Leclair)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Jackie Crawford Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Nicholas Sapp Ministry of Government Services Centre for Employee Relations Employee Relations Advisor

SUBMISSIONS

January 31, February 14, 2011.

Decision

1The grievor, Lizanne Leclair, is a Probation Officer 2 who has been with the Ministry since June of 1998. She is presently working in the Sudbury Probation Office. In August of 2004, she filed a grievance alleging that she was improperly denied relocation expenses flowing from her move from Elliot Lake to Espanola. By way of remedy she seeks $3300. for various costs related to her move.

2In 2004 the Ministry of Child and Youth Services was established after a disentanglement of the youth services from adult services. This occurred for probation services as well as for correctional institutions.

3This matter was submitted to the Board for its determination by way of written submissions. It was agreed by the parties that this decision would be without prejudice or precedent.

4The Union asserted, and the Employer conceded the following facts:

• In 2004, prior to the filing of the grievance the grievor was assigned to the Elliott Lake Probation Office of the Ministry of Public Safety and Security (as it then was) and was employed as a Probation Officer.

• In 2004, the Ministry was in the process of “disentangling” Probation Services for youth from Probation and Parole Services for adults as part of Phase 2 Youth Justice Probation Services. On May 18, 2004, the grievor, along with other affected staff, were informed that under the disentanglement process, they would have the right to choose whether to accept or decline a transfer of employment from Corrections to the Ministry of Children and Youth Services.

• A letter dated May 18, 2004 advised employees that accepting the transfer would give rise to an entitlement under Appendix 13 of the Collective Agreement between OPSEU and the Employer. Appendix 13 provides eligibility for reimbursement of relocation costs where headquarters are relocated beyond a 40 km distance.

• Accepting the transfer would require the grievor to work in the Sault Ste Marie Probation and Parole Office. Declining the transfer would render her surplus and subject to the relevant provisions of the collective agreement.

• On May 21, 2004, Ms Leclair accepted the transfer as evidenced by her signature on page 3 of the May 18, 2004 letter referenced above.

• On June 3, 2004, Corrections wrote to Ms Leclair indicating that she was assigned to Sault Ste Marie MCYS Probation office and informing her of the availability of relocation costs to reimburse her for her moving expenses.

5A few months before the above noted correspondence, the grievor made a request for a lateral transfer. The documents reveal that she wanted to work in the Sudbury or Espanola office. On March 23, 2004, in accordance with Article 6.6 of the Collective Agreement, she made a request for a lateral transfer to move from her position in Elliot Lake to Probation Services in Espanola, Probation and Parole Services, Sudbury or Probation Services, Sudbury. Attached to her lateral transfer requests was a letter from Ms. Leclair indicating that her request was for “compassionate reasons”. She outlined her family situation and noted that “she would be in a better position to juggle work and family responsibilities” if she worked in the Sudbury office.

6The parties negotiated terms and conditions at the MERC level regarding the disentanglement. It was noted in a letter to the grievor that:

In accordance with MERC Agreement #3A and Article 6.6.1 (lateral transfers), on June 22, 2004 the Employer and the Union agreed to fill all current Probation and Parole Officer vacancies and OAG8 vacancies dedicated to Community Corrections functions in the Ministry of Community Safety and Correctional Services and the Ministry of Children and Youth Services.

Furthermore, it was agreed by the parties that the lateral transfer list would be accessed for the purposes of the June 22, 2004 agreement. All lateral transfer requests received by 5:00 pm on July 6, 2004 by the Workforce Adjustment Unit, London were considered for the purpose of the implementation of the June 22, 2004 agreement.

7On July 5, 2004, the grievor submitted a lateral transfer request to move from her position in Sault Ste. Marie to one of five positions that were located in Sudbury, North Bay or Espanola. Again, attached to the lateral transfer request was a letter from Ms. Leclair explaining that the need for such a transfer was “for compassionate reasons.”

8On July 5, 2004, the Workforce Adjustment Unit acknowledged in writing her request. In that letter it noted that her current work location was Sault Ste. Marie notwithstanding that the grievor had yet to move to that location.

9On July 27, 2004, the Workforce Adjustment Unit wrote to the grievor and informed her that she had been granted a lateral transfer to the Espanola office. That letter stated, in part:

I am pleased to confirm that your lateral transfer request has been accessed and that you have been laterally assigned to the Espanola Probation Office.

10According to the Union, prior to being notified that she would be laterally transferred to Espanola, the grievor visited Sault Ste Marie in an effort to secure new housing. She put her house in Elliot Lake on the market, incurring expenses related to her anticipated relocation to Sault Ste Marie. These expenses were reimbursed pursuant to Appendix 13 of the Collective Agreement as set out in the June 3, 2004 letter. However, she did not receive monies for the cost of her move to Sudbury. It is these further expenses that she now claims.

11It was the grievor’s position that she would not have moved to Sudbury if there had been no disentanglement process, and that this move would actually involve less cost to the employer in reimbursement than a move to Sault Ste Marie. Further, she alleged that the vacancy in Espanola had been known to the employer for months before she became aware of it and that had it been made known sooner, she could have relocated to Sudbury as she had requested, rather than to Sault Ste Marie, with eligibility for relocation expenses as provided in Appendix 13 of the Collective Agreement.

12In the facts outlined by the Union, the grievor further contended there was a vacancy in Sudbury but it was held for a “favoured employee”. Had the Employer not withheld information about this vacancy, it would have been available to her when she accepted the relocation of work offered in the Employer’s May 18, 2004 letter. It was asserted by the Union that the grievor would then have been appropriately reassigned to Sudbury and would have received reimbursement of relocation expenses. For those reasons, the move she made to Espanola was wrongly categorized as a lateral transfer. Ms Leclair would not have considered moving to Sault Ste Marie but for the disentanglement and the relocation of her work. Her move from Elliott Lake to Espanola ought to have been a move to her preferred relocation as part of the disentanglement and relocation options provided to her by the Employer. Instead, it was treated as a lateral transfer because of the timing of the manner in which the employer made the Espanola vacancy known.

13It was the Employer’s submission that the grievance must fail. It was asserted that the facts reveal that the grievor was moved as the result of a lateral transfer request and not as the result of a relocation of Headquarters as contemplated by Appendix 13. According to Appendix 13, relocation expenses will be paid when the Employer changes the employee’s headquarters to a location beyond a forty kilometer radius. That is what occurred when the grievor’s position was relocated from Elliot Lake to Sault Ste. Marie. However, at the point that the grievor was granted a lateral transfer request there was no entitlement to relocation expenses. It was urged that lateral transfers under the MERC Agreements dated March 22, 2004 temporarily expanded the scope of Article 6.6.1 to allow inter-Ministry lateral transfers while maintaining the other entitlements of Article 6.6.1. Accordingly, relocation costs are not owing to the grievor.

14The Employer also submitted that the grievor’s allegation regarding the “saving of a position for a favoured employee” should be rejected because no evidence was provided in this regard. In any event, disentanglement did not give employees the right to choose their locations.

15Appendix 13 of the Collective Agreement states, in part:

The Employer and the Union herewith agree that, when a ministry decides to change an operation’s headquarters to a location outside a forty (40) kilometer radius of that operations current headquarters, the following terms and conditions will apply:

2. (a) employees may accept the change in headquarters location, in which case they will be eligible for reimbursement of relocation costs in accordance with the Employer’s relocation policy, or

(b) employees may reject the change in headquarter location, in which case they will be given six (6) months’ notice of lay-off pursuant to Article 20.2.1 (notice and Pay in Lieu) and have full access to the provisions of Article 20 (Employment Stability) and Appendix 9 (Employment Stability) of the Central Collective Agreement.

16Article 6.6.1 of the Collective Agreement states:

With the agreement of the Union, the employee and the Employer, an employee may be assigned to a vacancy where:

(a) the vacant position is identical to the position occupied by the employee, and

(b) the vacant position is in the same Ministry as the position occupied by the employee, and the provisions of Article 6.6.1, 6.2, 6.3, 6.4 and 6.5 shall not apply.

17The MERC Agreement 3A allowed for inter-ministry lateral transfers between the Ministry of Community Safety and Correctional Services and the Ministry of Child and Youth Services. It stated, in part:

1. For the purposes of Article 6.6.1 (lateral transfer), positions identified above which are currently treated as identical for the purposes of Article 6.6.1 shall continue to be treated as identical in the same ministry.

2. The current practice for accessing lateral transfers with respect to the position in #1 will continue.

18After considering the facts and submissions in this matter, I am of the view that the grievance must be denied.

19I agree with the Employer that the grievor’s allegation regarding a position in Sudbury being held for an employee was not substantiated with any evidence. Accordingly, I dismiss that claim.

20There is nothing in the documents or submissions provided that would lead me to find that the grievor was denied any rights found in the Collective Agreement or MERC agreement.

21While it is true that the grievor had submitted a lateral transfer request prior to the disentanglement process commencing, that request does not give her any preferential treatment. The Employer provided a copy of a Vacancy Report for the Northern Region at the salient time and it is apparent that there were no vacancies in the Northern Region when Ms. Leclair applied for a transfer in March of 2004.

22The grievor was one of the employees involved in the disentanglement and according to the evidence provided was treated in an appropriate fashion. She was offered a position in the Sault Ste Marie Office and she accepted obviously deciding that it was a better alternative than being surplused.

23The grievor did not move to Sault Ste Marie because she (and others) were allowed to submit lateral transfer requests to move to a location more suitable to her individual needs. She did that and one of her choices was granted. However, her move to Espanola was as the result of a lateral transfer and therefore she was not entitled to relocation costs.

24The Union submitted that the grievor’s move from Elliot Lake to Espanola ought to have been a move to her preferred location as part of the disentanglement with relocation costs and not a lateral transfer. It was further urged that it was considered a lateral transfer because of the timing and manner in which the Employer made the Espanola vacancy known.

25I disagree. Simply put, the grievor does not have a right to her preferred location in a disentanglement process. Notwithstanding her allegations, there was no evidence provided that vacancies were manipulated so as to provide preferential treatment to some employees.

26Ms. Leclair was offered a position in Sault Ste. Marie that she accepted. In accordance with an agreement between the parties she was later given an opportunity to submit a lateral transfer to a different location and that request was granted. There was no evidence provided that would have me find there has been a violation of either the Collective Agreement or any MERC agreement.

27The grievance is dismissed for those reasons.