GSB#2010-0756
UNION#2009-0555-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Wong)
Union
- and -
The Crown in Right of Ontario (Ministry of Government Services)
Employer
BEFORE
Nimal Dissanayake
Vice-Chair
FOR THE UNION
Anne Cumming Koskie Minsky LLP Barristers and Solicitors Counsel
FOR THE EMPLOYER
Cathy Phan Ministry of Government Services Labour Practice Group Counsel
HEARING
February 21, 2012.
Decision
1The board is seized with a grievance dated July 7, 2009, filed by Ms. Frances Wong. It states “I grieve my rights have been violated specifically but not exclusively under Art: 2, 3, UN 9, UN 11 of the collective agreement”.
2At the commencement of the hearing, the board was advised that the parties had agreed to present a motion by the employer seeking the dismissal of the grievance on the grounds that the particulars provided by the union pursuant to a Board order fail to establish a prima facie case supporting a violation of the collective agreement.
3The union’s particulars are as follows:
The Grievor, Frances Wong, is a mainframe technical specialist which is classified at an SO6 level. She has held this position since 2005. Due to internal restructuring, her position moved to MGS in approximately April of 2006.
Due to the restructuring of IT positions from cluster ministries to MGS, Ms. Wong’s job duties changed. The changes were adverse to Ms. Wong and she has been affected accordingly.
By memoranda dated January 28th and March 16th 2009, Ms. Wong was advised that she was expected to perform the duties falling within a new job description – that of Program Product and Reporting Advisor (S06). This position has significantly different job duties associated with it than her previous position.
In early 2009, Ms. Wong advised her manager of her concerns regarding her new position. Ms. Wong was concerned with her lack of training in regards to these new duties and the fact that the new position appeared to be a form of demotion as compared to her last position. Ms. Wong did not receive a satisfactory answer in regards to her concerns and inquiries in this respect. Instead, Ms. Wong was advised by her manager that failure to perform her new duties would be considered insubordination and that progressive discipline would follow.
Ms. Wong was distressed by the threat of discipline. To the best of the Union’s knowledge, Ms. Wong was the only employee in her group to have been threatened with discipline for inquiring into the organizational changes that affected her work duties.
Ms. Wong was denied a new and upgraded computer (she used a borrowed one) for a lengthy period of time. She has yet to receive a new computer. Ms. Wong is the only employee in her group that had to use a borrowed computer while at work. Furthermore, Ms. Wong’s inquiries and requests regarding training and development programs in which she was interested were denied by her manager.
As a result of the workplace changes including the change to her job specifications such that she is now a Program Product & Reporting Advisor, Ms. Wong lost the opportunity to perform on-call work and therefore also lost the pay associated with the performance of on-call duties. Ms. Wong performed on-call duties under her previous job specifications. Management’s failure to ensure that under her new job specifications such on-call work is provided to Ms. Wong is offered on-call work constitutes a demotion.
4Counsel for the employer presented the decisions of the Board in Re Couture et al, 2008-3329 (Dissanayake), Re Anthony et al, 1991-1979 etc. (Abramsky) and Re Seguin et al, 2010-1205 (Briggs). In Re Couture et al (supra) at paragraph 6, the Board set out the test for a “prima facie motion” as follows:
… a prima facie motion would succeed if the facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged.
This test has been applied with approval in subsequent decisions of the board. See, re Ministry of Government Services (Union grievance), 2010-0405 (Abramsky) at paragraph 14, Re Seguin et al, (supra) at paragraph 40.
5Counsel submitted that on an application of that test the motion should succeed. She argued that while the grievance alleges a violation of article 3, there are no facts set out which could possibly establish discrimination on any of the prohibited grounds enumerated in article 3 or discrimination or harassment due to the grievor’s union activity as set out in article 3.2.
6Article UN 9 of the collective agreement reads:
ARTICLE UN 9 – CALL BACK
UN 9.1 An employee who leaves his or her place of work and is subsequently called back to work prior to the starting time of his or her next scheduled shift shall be paid a minimum of four (4) hours pay at one and one-half (1½ ) times his or her basic hourly rate.
UN 9.2 Where an employee is contacted by the Employer outside the workplace prior to the starting time of his or her next scheduled shift, in circumstances where such contact is considered to be a “call back to work” but the employee is not required to physically attend at the workplace, the employee shall be paid a minimum of four (4) hours’ of pay at one and one-half (1½) times his or her basic hourly rate. The initial call and any subsequent calls during that same four-hour period, will be treated as a single “call back to work” for pay purposes.
Counsel argued that article UN 9 obligates the employer to pay call back pay to an employee at the rates specified where he/she is called back as defined in that provision. The particulars do not assert that the grievor was called back to work so as to be entitled to call back pay. She submitted that there is nothing in article UN 9 that obligates the employer to call back the grievor or any other employee. The decision whether to call back an employee is a management decision. Article 9 only obligates the employer to pay for call back where it decides to call back an employee in the exercise of its management rights.
7Article UN 11 is about on-call duty. Article UN 11.1 defines “On-call duty” as follows:
UN 11.1 “On-call Duty” means a period of time that is not a regular working period, overtime period, stand-by period or call back period during which an employee is required to respond within a reasonable time to a request for:
(a) recall to the work place, or
(b) the performance of other work as required.
Where an employee is required to be on-call as defined, article UN 11.7 entitles the employee to receive on-call pay at specified rates.
8Employer counsel submits that the particulars of the union do not show that the grievor was ever required to be on-call so as to be entitled to on-call pay under article UN 11. As with Article UN 9, counsel submits that article 11 does not impose any obligation on the employer to request the grievor or any other employee to be on-call. That is strictly a matter of management rights, as part of its right to schedule work.
9Addressing the last provision cited in the grievance, Article 2, employer counsel drew to the Board’s attention the following excerpt from Re Anthony (supra) at p. 8:
But for the Board to have jurisdiction, an inequitable situation is not enough. In OPSEU (Ashley et al) and Ministry of Community, Family and Children’s Services, supra at p. 14-15 the Board held:
The decision in OPSEU (Bousquet), supra, does not assist the Union. The Board in that case did not adopt a general duty of good faith and reasonableness in the exercise of management rights. …[U]nder Bousquet, supra, the jurisdiction of the Board to review the Employer’s exercise of a right reserved to management is derivative – it depends on the existence of a provision in the collective agreement which might be adversely affected by management’s actions.
The Board’s jurisdiction depends on an allegation that the Employer’s action interfered with the grievors’ rights under the collective agreement.
10Counsel submitted that since the union’s particulars do not support a prima facie violation of any of the other articles cited, the only other way the union can assert a violation article 2 is by showing that the employer exercised its management rights in bad faith. Counsel argued that accepting for the present purposes that the assertions in the particulars are established, they do not provide a factual basis for a finding of bad faith.
11Union counsel argued that its particulars make out a prima facie case in two ways. First, it was submitted that while the particulars do not allege bad faith explicitly, such an allegation is implied in the assertions that the grievor was not provided a satisfactory answer when she raised concerns about the new position she was placed in and the resulting change in duties. Moreover, the grievor was threatened with discipline if she failed to perform duties in her new position, and the grievor was the only employee to be so threatened. Counsel also referred to the allegation in the particulars that the grievor was denied a new and upgraded computer. It is the position of the union that those assertions by implication suggest that the employer exercised its management rights in bad faith in the manner it dealt with the grievor.
12Secondly, counsel submits that a prima facie case for contravention of article UN 11 is made out because it is alleged by the grievor that as a result of the change of her position she lost the opportunity to earn extra money by way of on-call pay, a benefit she enjoyed in her previous position.
13The grievance itself alleged violations of article 2, 3, UN 9 and UN 11. The employer took the position that the particulars do not make out a prima facie violation of any of those provisions. In response, the union argued that a prima facie case is made out with respect to article UN 11, and article 2 based on bad faith. Therefore, the disposition of the employer’s motion requires the Board to determine whether or not the facts asserted in the union’s particulars, if accepted as true, are capable of establishing the elements necessary to substantiate violations of articles 2 and/or UN 11.
14The Board finds that the particulars do not meet that test with regard to article UN 11. As employer counsel correctly pointed out, the right conferred on employees under article UN 11 is to be paid on-call pay when they perform on-call duty. There is no obligation on the employer under article UN 11 to assign on-call duty. That is a decision to be made in the exercise of the employer’s management rights. The employer is free to exercise its management rights at its discretion provided its actions are not taken in bad faith and do not infringe upon a right conferred under a provision of the collective agreement.
15This leads to the union’s submission that the particulars, if accepted as true, disclose a prima facie case that the employer exercised its management rights under article 2 in bad faith. The particulars acknowledge that the changing of the grievor’s position and the resulting change in her duties, was “due to the restructuring of IT positions from cluster ministries to MGS”. Thus there is no allegation that her change of position and duties in itself was tainted by bad faith.
16The particulars go on to allege certain facts following the change of the grievor’s position:
That the grievor expressed concern about her lack of training in regard to her new duties.
That she expressed concern that her new position “appeared to be a demotion as compared to her last position”.
That the grievor did not receive a satisfactory answer in regard to the concerns she had expressed.
That the grievor was advised by her manager that failure to perform her new duties would be considered to be insubordination and progressive discipline would follow.
That the grievor was the only employee in her group to be threatened with discipline.
That the grievor was distressed by the threat of discipline.
That the grievor was denied a new and upgraded computer and she was the only employee who had to use a borrowed computer.
That her requests for training and development programs were denied by her manager.
That she was denied the opportunity to perform on-call duty in her new position.
17If all of the foregoing assertions are accepted as true, as the Board must for the present purposes, they indicate that the grievor was disadvantaged in different ways as a result of the change of her position. Taken at its highest, the facts may also indicate that in some instances the employer may not have utilized the best management practices. For example, it is not a good management practice to not respond to employee inquiries and expressions of concern. However, that falls far short of establishing “bad faith” as it is commonly understood, or as defined in the legal authorities.
18The union’s particulars also allege differential treatment of the grievor – with regard to the alleged threat of discipline if the grievor refused to perform her new duties and her having to use a borrowed computer. However, in order to infer bad faith there must at least be evidence that similarly situated individuals were treated differently. For example, there is no suggestion in the particulars that other employees raised objection to new duties resulting from the change of position in the same way the grievor did. Therefore, the fact that the grievor was the only one to be told that refusal to perform duties in her new position could result in discipline, cannot lead to an inference that the employer acted in bad faith.
19The particulars indicate that the grievor was disadvantaged in several ways as a result of the change of position and duties. There is also a clear assertion that she was distressed by what transpired. It is also likely that the grievor sincerely believes that the employer acted in bad faith in the manner she was treated. However, a mere allegation of bad faith and a sincere belief that her allegation is well-founded is not sufficient to establish a bad faith exercise of management rights. The grievor’s subjective belief, however strongly and sincerely held, is insufficient. There must be some objective facts that could reasonably lead to a finding of bad faith. The particulars of the union do not disclose any objective facts which could lead to a finding of bad faith. They only would establish that the grievor was adversely impacted by management action. In the result, the employer’s motion succeeds and the instant grievance is hereby dismissed.
Dated at Toronto this 5th day of March 2012.