GSB#2012-1007, 2012-1008

UNION#2012-0542-0006, 2012-0542-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gallucci)

Union

• and -

The Crown in Right of Ontario (Ministry of Government Services)

Employer

BEFORE

Michael Lynk

Vice-Chair

FOR THE UNION

Stephen Giles Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Labour Practice Group Counsel

HEARING CONFERENCE CALL

February 6 & 7, 2013. March 1, 2013.

Decision

Introduction

1As per the mediation/arbitration provisions of Article 22.16 of the Collective Agreement, the parties have agreed that this decision is without prejudice and without precedential value.

2The two grievances before me engage the redeployment, displacement and temporary assignment rights under Article 20 of the governing Collective Agreement between the Ontario Public Service (OPS) and the Ontario Public Service Employees Union (OPSEU). The grievor, Tony Gallucci, was laid off from active work on 2 June 2012 by the Employer. At the time of his lay-off, he had been employed by the Ministry of Government Services as a Peripheral Operator, holding the classification of a Data Processing Technician (DPT) 5. His home position with the Ministry was located at 1201 Wilson Ave. in Toronto (the “Downsview location”), at one of its data operational centres.

3In October 2010, the Ministry formally announced that it had decided to move the data operations to Guelph. This included Mr. Gallucci’s position. As part of its announcement, the Ministry served Mr. Gallucci with a formal notice concerning the move. He was offered the choice of following the work to Guelph or exercising his rights under Article 20, which would enable him to seek redeployment into a vacancy in either his own Ministry or with another ministry within the OPS. For various family reasons, moving to Guelph was not an attractive option for Mr. Gallucci, and he elected in November 2010 to continue to work in Toronto until his position was declared surplus and, during the same time, to seek redeployment elsewhere within the OPS. In January 2011, the Ministry wrote to Mr. Gallucci, acknowledging his decision to decline the move to Guelph, informing him that available job postings within the OPS could be found on a government intranet portal, and inviting him to consider training opportunities. Meanwhile, his work as a Peripheral Operator at the Downsview location continued throughout 2011.

4In a letter dated 17 November 2011, the Ministry served Mr. Gallucci with a detailed letter, informing him that his position would be declared surplus as of 2 December 2011, and that his layoff date would be 2 June 2012. Later in November, Mr. Gallucci chose to formally trigger his Article 20 surplus rights and sought to be redeployed to another OPS position within the Toronto area. On 2 December 2011, he received his formal Letter of Layoff. As required by the redeployment process, he subsequently completed his employee portfolio (which detailed his workplace skills, experience and abilities), and delivered it in December to the Employer.

5Using Mr. Gallucci’s employee portfolio, the Employer sought to match him with various redeployment possibilities during the ensuing months. The redeployment search was not successful. On 1 May 2012, Mr. Gallucci received a formal notice from the Ministry, informing him that he was not qualified for redeployment in any of the positions that he applied for, as per Article 20.3 of the OPS Agreement. The Ministry notice also stated that he was not qualified to displace any junior employees under Article 20.4.

6Three days later, on 4 May, Mr. Gallucci grieved the Ministry’s decision, asserting that there were at least three other DPT5 positions in Toronto, all of whom has less seniority than the grievor. He argued that the Employer had breached both Articles 20.3 and 20.4 of the Collective Agreement.

7As well, Mr. Gallucci filed a second grievance, also on 4 May 2012. In this grievance, Mr. Gallucci asserted that the Employer had breached Article 20.8 by failing to find any temporary work assignments for him during the last two months of his notice period. He maintained that he was qualified to perform some of the wind-up work that was still being conducted at the Downsview location prior to the final move, including the DPT5 Payment Processor positions. The Employer has stated that there were no temporary positions in the Peripheral Operation Unit at the Downsview location during the last two months of Mr. Gallucci’s surplus notice period within his capabilities, nor were there any temporary vacancies for a DPT5 Payment Processor position during this period.

8Mr. Gallucci was laid off on 2 June 2012, and has not worked within the OPS since.

9The Employer maintains that it had followed the Collective Agreement at all times during the various notifications issued to Mr. Gallucci and during its redeployment and temporary assignment searches on his behalf.

Collective Agreement

10The Union has alleged that Articles 20.3, 20.4 and 20. 8 of the governing OPS-OPSEU Collective Agreement (2009-12) have been breached. They read as follows:

20.3 REDEPLOYMENT

20.3.1 An employee who has received notice of lay-off in accordance with this article shall be assigned to a position that becomes vacant in his or her ministry or in another ministry during his or her notice period provided that:

(a) the vacant position is within a range of classifications whose maximum rate is 5% above and 15% below the maximum rate of the employee’s own classification; and

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

(c) he or she is qualified to perform the required duties; 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 20.3 or Article 20.6 (Recall).

20.3.2 With mutual consent, an employee who has not been assigned under Article 20.3.1 shall be assigned to a position that becomes vacant in his or her ministry or in another ministry beyond a forty (40) kilometre radius of his or her headquarters provided the conditions outlined in Article 20.3.1 (a), (c) and (d) are satisfied. It is understood that the employee may request that the Employer take into account any specific locations for redeployment, and the Employer will take into account locations that are within a forty (40) kilometre radius of such locations. Relocation expenses will not be paid.

20.3.3 If, in accordance with Article 20.3.2 an employee indicates that he or she is willing to be assigned to a position that becomes vacant in a specific location beyond a forty (40) kilometre radius of his or her headquarters and the employee is offered an assignment within a forty (40) kilometre radius of that location, refusal of the job offer will result in lay-off at the end of the notice period.

20.3.4 Where an employee has been assigned to a vacant position within a classification having a maximum rate below the maximum rate of the employee’s own classification, pursuant to Article 20.3.1(a), the employee shall remain at his or her current rate of pay, without any salary progression, until the expiry of his or her notice period, upon which the employee shall be placed at the appropriate step on the salary range for the classification to which the employee has been assigned.

20.3.5 It is agreed that where an employee is assigned to a vacancy within a classification having a higher maximum rate, pursuant to Article 20.3.1(a), it shall not be considered a promotion under Article 7.

20.4 DISPLACEMENT

20.4.1.1 An employee who has completed his or her probationary period, who has received notice of layoff pursuant to Article 20.2 (Notice and Pay in Lieu), and who has not been assigned, within a period of five (5) months after the receipt of the notice of lay-off, in accordance with the criteria of Article 20.3 (Redeployment) to another position shall have the right to displace an employee who shall be identified by the Employer in the following manner as set out in Articles 20.4.1.2

to 20.4.1.10.

20.4.1.2 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:

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

(b) the surplus employee is qualified to perform the work of the identified employee. 20.4.1.3 If the surplus employee is not qualified to perform the work of the least senior employee identified under Article 20.4.1.2 above, the Employer will continue to identify, in reverse order of seniority, employees in the same classification and in the same ministry until a less senior employee is found within forty (40) kilometres of the surplus employee’s headquarters whose work the surplus employee is qualified to perform.

20.4.1.4 Failing displacement under Article 20.4.1.2 or 20.4.1.3 above, the Employer will identify, in reverse order of seniority, employees in the classes in the same class series in descending order until an employee with less seniority is found in the same ministry within forty (40) kilometres of the surplus employee’s headquarters. The identified employee shall be displaced by the surplus employee provided he or she is qualified to perform the work.

20.4.1.5 Failing displacement under Articles 20.4.1.2 or 20.4.1.3 or 20.4.1.4 above, the Employer will review other classes which the employee held either on a full-time basis, or who performed the full range of job duties on a temporary basis for at least twelve (12) months in the same ministry within forty (40) kilometres of the surplus employee’s headquarters. The Employer will identify, in reverse order of seniority, a less senior employee in the class with the maximum salary closest to but not greater than the maximum salary of the surplus employee’s current classification. The identified employee shall be displaced by the surplus employee provided he or she is qualified to perform the work.

20.4.1.6 Failing displacement under Articles 20.4.1.2, 20.4.1.3, 20.4.1.4 or 20.4.1.5 above, if the employee requests, the Employer will repeat the steps specified in Articles 20.4.1.2, 20.4.1.3, 20.4.1.4 and 20.4.1.5 with respect to positions beyond a forty (40) kilometre radius of his or her headquarters. No relocation expenses will be paid.

20.4.1.7 Failing displacement under Article 20.4.1.2, 20.4.1.3, 20.4.1.4, 20.4.1.5 or 20.4.1.6 above, the Employer will identify, in reverse order of seniority, a less senior employee who is:

(a) in another ministry; and

(b) whose headquarters is within a forty (40) kilometre radius of the displacing employee’s headquarters; and

(c) whose position the displacing employee previously held either on a full-time basis, or who performed the full range of job duties on a temporary basis for at least twelve (12) months in that ministry; and

(d) if the employee previously held more than one position in that ministry, the position with a maximum salary closest to but not greater than the maximum salary of the displacing employee’s current classification.

The identified employee shall be displaced provided the displacing employee is qualified to perform the work.

20.4.1.8 Upon the completion of five (5) months following commencement of the notice period, the Employer will advise the surplus employee of the position into which he or she is eligible to displace.

20.4.1.9 The surplus employee must indicate in writing to the Employer his or her intention to displace the employee identified pursuant to Articles 20.4.1.2, 20.4.1.3, 20.4.1.4, 20.4.1.5, 20.4.1.6, or 20.4.1.7 above, as applicable. Written intention to displace must be received by the Employee Mobility Coordinator no later than one (1) week following the date the surplus

employee received advice that he or she was eligible to displace an employee pursuant to Article 20.4.1.8 above.

20.4.1.10 An employee who does not indicate in writing to the Employer his or her intention to displace within the time period stipulated by Article 20.4.1.9 above shall be deemed to have given up his or her right to displace and opted for redeployment under Article 20.3 (Redeployment).

20.4.2 The first employee who is displaced by an employee exercising his or her right to displace under Article 20.4.1 will have displacement rights. The employee displaced by the first displaced employee will also have displacement rights but the employee he or she subsequently displaces will not have any such right.

20.4.3 An employee who is displaced by an employee who exercises his or her displacement right under Article 20.4 shall receive notice of lay-off or salary continuance, at the Employer’s discretion. The displaced employee’s notice period or salary continuance shall be for a six (6) month period.

20.4.4 Article 7.4 (Pay Administration) shall not apply where an employee displaces a less senior employee pursuant to Articles 20.4.1.4, 20.4.1.5, 20.4.1.6 or 20.4.1.7 above, save and except that Article 7.4 (Pay Administration) shall apply for the balance of the employee’s notice period only.

20.4.5 Except as provided in Article 20.4, employees who are displaced will have full access to the provisions of Article 20.

20.8 TEMPORARY VACANCIES

20.8.1 Surplus employees shall be eligible for assignment into temporary assignments in their own ministry in the last two (2) months of their notice. Such assignments are meant to provide additional employment opportunities for surplus employees prior to lay-off. Where more than one surplus employee matches the temporary assignment, the employee with greater seniority shall be offered the temporary assignment. It is understood that such assignment of a surplus

employee to a temporary vacancy has priority over Article 8 (Temporary Assignments).

20.8.2 A surplus employee shall retain his or her status in the Regular Service and current salary entitlements while placed in a temporary assignment. Placement in a temporary assignment will not constitute a promotion for pay purposes. Subject to Article 20.8.1, for placement into temporary assignments, the employer shall use the same criteria and rules as for

assignment into vacancies under Article 20.3 (Redeployment).

20.8.3 An offer of a temporary assignment to a surplus employee must be in writing and must specify the duration of the temporary assignment. The surplus employee shall have five (5) working days in which to accept or reject the offer of a temporary assignment.

20.8.4 Surplus employees who are occupying a temporary assignment remain eligible for assignment to permanent vacancies in accordance with the provisions of Article 20.3 (Redeployment) throughout their temporary assignment, but shall not continue to be matched to other temporary assignments during the term of the temporary assignment; however, the

original temporary assignment may be extended by a maximum of three (3) months.

20.8.5 Where an employee in a temporary assignment is assigned to a permanent vacancy, the reporting date to the permanent position shall be no later than one (1) month from the date of offer, unless otherwise mutually agreed upon with the employee, the ministry with the permanent vacancy and the ministry with the temporary assignment.

20.8.6 When a temporary assignment takes place, the employee shall not be unreasonably denied the opportunity to complete any portion of training already underway. Surplus employees who refuse a temporary assignment shall continue to be considered for assignment into permanent vacancies for the duration of their surplus notice period, but not for further

temporary assignments.

Evidence

11The Union called Mr. Gallucci as its sole witness. The Employer did not call any witnesses. On consent, the parties entered a number of documents as evidence.

12Mr. Gallucci began his employment with the OPS in February 1989, and was continuously employed by the Ministry of Government Services until his lay-off in June 2012. All of his jobs had involved the performance of various data processing responsibilities. Since June 1991, he had worked as a Data Processing Technician (DPT) 5 at the Downsview location of the Ministry. In 2008, Mr. Gallucci’s job title was changed to Peripheral Operator (while maintaining his DPT5 classification), as part of an operations re-organization by the Employer. According to his most recent job description, the work in this newly re-titled position included the operation of “peripheral equipment within a large-scale computer centre, including mainframe and midrange hardware”, and the provision of “tape library storage management and support services for multimedia in a multi-user 7/24/365 environment”. The vast bulk of his work in this re-titled position was in the data library area, where he performed data back-up, data storage and data security operations for the Government of Ontario’s financial information. As well, as a secondary task, he also took part in the mass printing of government-issued cheques for public service payroll, and for social assistance and guaranteed annual income programs, among others, as well as assisting in the creation of cheque stock.

First Grievance – Redeployment and Displacement

13Mr. Gallucci’s first grievance asserted that he was qualified to perform the work – as per Article 20.3.1(c) of the Collective Agreement – of at least three other DPT5 positions in Toronto with less seniority than he possessed, and that he ought to have been deployed in these jobs. He identified the Payment Processing positions as work that he was sufficiently qualified to perform because of his past workplace experience. Alternatively, he asserted that he ought to have been able to displace a more junior employee in the DPT5 category.

14The Employer maintained that he was not qualified for any of these redeployment or displacement positions which he had identified. In particular, it stated that he lacked two significant qualifications:

• Lack of knowledge respecting related cheque production systems; and
• Lack of knowledge respecting the capabilities, applications, standards, support tools and techniques of the cheque payment and electronic funds transfer systems and production environment (e.g, RACF, CICS, JCL, TSO/ISPF, Royal EPM system and Direct Deposit Tracing System), and related utilities and security measures, knowledge of government accounting and accounting controls, reconciliation, and audit control policies.

15In his oral evidence on direct examination, Mr. Gallucci testified that he had performed the work of the Payment Processing position in the past. He pointed to his own experiences in the printing of large stock cheque runs, including payroll and social assistance cheques, and T4s and T5 forms. He cited his general familiarity with the audit controls policies within the OPS. Outside of the Ministry, Mr. Gallucci stated that he had obtained his Certified Property Manager designation through a community college program in 1996-7, and then worked for a small employer as a co-op placement during his own off-duty time. In this position, he operated the employer’s payroll system, transferred funds electronically, performed the direct deposit tracking system, conducted income tax deductions, set up a regular payment schedule, and handled the bookkeeping. Regarding the knowledge of cheque payment systems, Mr. Gallucci stated that he had handled the printing of cheques, he had performed audits and reconciliation, he had offloaded data from tape to print, and he ensured that service agreements had been followed and time schedules met. He pointed to his experience in operating mainframe applications which involves a number of the relevant operating systems, such as ISPF, SAR, JCL, IMS, CICS and RACF. Mr. Gallucci acknowledged that he had not worked much with the Royal EPM System.

16Mr. Gallucci provided this information to the Employer in his December 2011 employee portfolio.

17On cross-examination by counsel for the Employer, Mr. Gallucci acknowledged that his work in the OPS primarily involved the storage and back-up of data, not its creation. Regarding his experiences with the administration of the payment process, he stated that his involvement with the payment tapes went to the printing of the information, as the data had already been assembled on the tapes by OPS employees at other locations. Once printed, the cheques would be shipped back to the separate payment processing location for distribution. If errors occurred in the printing process, he and his team would identify the problem, but they would not usually attempt to rectify it, as that was beyond their duties and capabilities. Mr. Gallucci acknowledged that his familiarity with the large-scale printing of cheques for the OPS did not extend to the creation and assembly of the financial data that preceded the printing of the cheques.

18As well, Mr. Gallucci also acknowledged on cross-examination that he was not familiar with the OPS’s system that arranged for the direct deposit of funds into banks and financial institutions, nor was he familiar with the tracing system used by the OPS to monitor its direct deposit system. When asked about his qualifications regarding the audit control policy in the OPS (which was part of the job description for the Payment Processing position that he had applied for), Mr. Gallucci stated that he had some familiarity with audit control at the property management company that he had worked at during his off-duty hours in the 1990s, but he had acquired no experience in this area during his years at the Ministry. Similarly, he acknowledged that he had not been exposed to the OPS’s particular financial reconciliation policies or its accounting control system during his Ministry career.

19On re-examination, Mr. Gallucci asserted that he possessed the requisite qualifications to perform the Payment Processing work

Second Grievance – Temporary Assignments

20In direct examination, Mr. Gallucci stated that his last day of active work was on 2 June 2012. At the time of his lay-off, he was responsible for ‘mainframe vaulting’, which involved the shipping of data storage to an off-site location, known as Iron Mountain. He testified that various other employees junior to him performed the work that he had done over the next five to six months until the Downsview operations were completely moved to the new location in Guelph. Mr. Gallucci’s working hours during his last weeks at Downsview was a 7 am to 3 pm shift, Monday to Friday; these were the same hours that the employees who replaced him worked during the next five to six months before the closure of the Downsview location. He asserted that he could have performed this work as a temporary assignment during this time period.

21On cross-examination, Mr. Gallucci was asked if he was aware of any vacancies between April and June 2012, which were his last two months of active employment. He acknowledged that he did not know of any such vacancies. Counsel for the Employer put the proposition to Mr. Gallucci that the employees working at the Downsview location during the latter half of 2012 performed work that was closely tied to moving the Downsview operations to Guelph, as opposed to continuing the work that Mr. Gallucci had done. He replied that he was not present at Downsview after his lay-off, so he could not affirm or deny that proposition.

Arguments

Union

22Counsel for the Union submitted that the question before me raised by the first grievance was whether Mr. Gallucci had the present ability to perform the work of the Payment Processing work that he had applied for through the redeployment and displacement processes under Article 20.3 and 20.4. He acknowledged that the prevailing test was established by the Grievance Settlement Board in OPSEU v. Ontario (Ministry of Municipal Affairs and Housing) (Loebel) (331/82, 15 February 1983) (Verity), where the panel established that the meaning of “qualified to perform the required duties” in redeployment situations meant that the grievor had to be able to perform the designated work without a training period, a trial period or any form of familiarization. Counsel argued that, while Loebel indicated that “qualified” meant ‘present ability’, it also suggested that ‘present ability’ should be interpreted broadly. Counsel asserted that, within this definition, Mr. Gallucci possessed a range of skills and qualifications from his 23 years in the OPS respecting data operations and storage, and the large-scale printing of government cheques that would satisfy the “qualified” standard. He pointed to the grievor’s testimony and his belief that he did have the present ability to step into these redeployment positions.

23Respecting the second grievance, Counsel for the Union argued that the Employer could have, with some diligence, found some temporary work for Mr. Gallucci within the requirements of Article 20.8

24In addition to Loebel, the Union also relied on OPSEU v. Ontario (Ministry of the Environment) (Bouchard), (GSB # 1587/98) (30 October 2002) (Brown); and

OPSEU v. Ontario (Ministry of the Environment and Energy) (Strunc), [2000] O.G.C.B.A. No. 21 (Harris).

Employer

25The Employer first addressed the Union’s arguments regarding the redeployment and displacement grievance. Counsel reminded me that the prevailing test is drawn from the language of the Collective Agreement: that “qualified to perform the required duties” in redeployment situations has consistently been interpreted to mean that the grievor had to be able to perform the designated work without a training period, a trial period or any form of familiarization.

26Turning to the facts of this case, the Employer submitted that the Payment Processing position that Mr. Gallucci sought was fundamentally a financial position. Taking both his OPS work experience and his outside employment background, it argued that he lacked specific knowledge of many of the position’s core duties. Mr. Gallucci had no transferrable experience with respect to the reconciliation of cheques, the production of cheques, or the mainframe systems that assembled the information which created the financial data for the production of the cheques. As well, the Employer stated that Mr. Gallucci had acknowledged on cross-examination that he did not possess sufficient experience or understanding of the electronic transfer of funds within the OPS. Nor did he have any knowledge of the OPS’s auditing policy. In sum, Counsel stated, the evidence points one way only: that while Mr. Gallucci had acquired many important skills and qualifications during his years at the Ministry, these particular qualifications did not provide him with the requisite knowledge for the Payment Processing jobs.

27Respecting the second grievance concerning the availability of temporary assignments, Counsel for the Employer maintained that Mr. Gallucci on cross-examination retreated from the position that other employees at the Downsview location were performing work in the months after his lay-off that he had previously done. Indeed, he argued, neither the Union nor Mr. Gallucci presented any concrete evidence, beyond assertions, that the temporary work which he felt he was capable of performing was available either at the Downsview or the Ministry during this time. The Employer submitted that this supports its position that there were no temporary positions available at the Downsview location during the relevant time period that Mr. Gallucci could have performed, as per Article 20.8.

28As authority, the Employer submitted OPSEU v. Ontario (Ministry of Citizenship) (Henderson), (GSB # 1097/91 & 1269/91) (31 March 1992) (Barrett); and OPSEU v. Ontario (Ministry of Agricultural, Food and Rural Affairs) (Ansari), (GSB # 0482/97) (13 November 1998) (Abramsky). It also relied upon OPSEU v. Ontario (Ministry of Municipal Affairs and Housing) (Loebel) (331/82, 15 February 1983) (Verity).

Decision and Reasons

First Grievance – Redeployment and Displacement

29The first task is to lay out the legal test respecting displacement and redeployment. We begin with the language in Article 20.3.1(c), which reads:

“he or she is qualified to perform the required duties”

As both counsel have stated, the thirty-year-old Loebel test is our starting point for giving us the meaning of this phrase. Loebel involved the interpretation of the equivalent provision – Article 24.2.3 – in the then governing Collective Agreement. It similarly provided redeployment rights to an employee “provided he is qualified to perform the work...”. For our present purposes, no argument was made that there was any material difference between the phrases “required duties” and “work”.

30In Loebel, Arbitrator Verity stated, at p. 18, that a grievor “has the right to be awarded the job if he is deemed qualified”. He then added three considerations to the Article’s meaning of “qualified” in these circumstances: (i) Article 24.2.3 did not provide for “a training period, or trial period or familiarization period”. In other words, the employee had to be ‘job-ready’ to step into the position and perform its duties without an introductory phase; (ii) “‘Qualified to perform the work’ must relate to the requirements of the job in question”. Hence, the Employer has to take into consideration only the actual tasks of the position under consideration; and (iii) The surplussed employee must be ‘minimally’ competent in all of the major components of the job. This does not mean that he or she must possess skill and knowledge in all activities of the targeted position, but it does require that she or he possesses the ready-to-go skills and knowledge in the main components of the job.

31In the subsequent caselaw interpreting this pertinent phrase on displacement and redeployment rights in surplus circumstances, layers have been added to the meaning of the term. I have summarized the submitted law as follows:

i. Article 20.3.1 is not a job competition provision. Surplussed employees are to be given extra consideration when applying for jobs. (Henderson, 1992, supra, pp. 12-13).

ii. Surplussed employees who seek their bargained displacement and redeployment rights under this Article need only have the minimal qualifications to perform the essential duties of the position(s) being sought. However, this refers to present qualifications, not those that could be obtained through extensive training. (Henderson, 1992, supra, p. 12).

iii. The Employer’s decision that an employee does not have the “minimum qualifications” for the targeted job must be correct. This means that a surplussed employee is entitled not only to a fair hearing, but also is entitled to the position in question if she or he can do the work, as per the meaning of ‘qualified’ stated above. (Ansari, 1998, supra, p. 10). [It should be noted that the Collective Agreement language during this period used the express language “minimally qualified to perform the job”. The language in the present Collective Agreement has reverted to “qualified” without the term “minimally” acting as a modifier. I will leave the potential debate for another case as to whether the removal of “minimally” materially changes the precise meaning of “qualified” or not.]

iv. One recognized exception to the ‘present ability” test from Loebel is that the no-training/trial/familiarization period rule does not apply to circumstances where training for a position is mandatory. This applies to the displacement of junior employees, but not to the filling of vacancies. (Bouchard, 2002, supra, pp. 10-11).

32Applying the Loebel test and its subsequent refinements to the facts of our present case, I am persuaded that Mr. Gallucci’s first grievance cannot succeed. It is my finding that Mr. Gallucci, notwithstanding his able abilities and qualifications acquired through the years that he worked in the Peripheral Operator position, did not have the requisite qualifications to step into the Payment Processing DPT5 positions and competently perform the main aspects of the job in a ‘job-ready’ state as understood by the Loebel test. Carefully weighing the evidence submitted to me, I am satisfied that Mr. Gallucci did not possess the degree of competence, whether minimal or not, respecting some of the core aspects of the position. In particular, he did not the requisite qualifications with regards to the core financial features of the Payment Processing job, such as the cheque production systems, the knowledge of government accounting and accounting control, the direct deposit system, the financial reconciliation policies and the audit control policies utilized by the OPS. I acknowledged that Mr. Gallucci had gained some familiarity with financial systems during his involvement with the property management company in the 1990s, but I am not persuaded that the financial systems employed by such a company can, by themselves, adequately equip an employee to be sufficiently qualified to perform some or all of the core financial duties inherent in the Payment Processing position within the OPS.

33Accordingly, the first grievance is dismissed.

Second Grievance – Temporary Assignments

34I am also unable to accept Mr. Gallucci’s second grievance, going to his claim for temporary assignments as a surplussed employee, as per Article 20.8. It is my ruling that the Union has not satisfied the burden of proof in this case. Specifically, the Union bears the onus to establish that vacancies existed during the last two months of Mr. Gallucci’s active employment – in our case, between April and June 2012 – for which he would have been qualified for a temporary assignment, as set out in Article 20.8.2. On the evidence presented, this has not been established. The Union has not provided me with a persuasive prima facie case that temporary positions existed within the Ministry during the relevant period that Mr. Gallucci could have performed within his job qualifications and capabilities.

35Accordingly, the second grievance is also dismissed.

Conclusion

36For the reasons offered, both of the grievances are dismissed. This ruling should not be seen as an adverse reflection on Mr. Gallucci’s abilities or the various qualifications that he acquired during his years in the OPS. Rather, the ruling goes to the fact that, on the evidence presented, the Employer satisfied its contractual obligations under the Collective Agreement and did not breached any of its duties owed to Mr. Gallucci during the surplus process.