GSB#2011-3795

UNION#2011-0605-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Osborne)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources)

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Paul Meier Ministry of Government Services Labour Practice Group Counsel

HEARING

April 16 & 17, 2013.

Decision

1This matter concerns a grievance dated November 28, 2011, filed by Mr. A. Osborne, in which he claims that the Employer exercised its management rights in an arbitrary and bad faith manner when it decided to surplus his position. The grievance specifically alleges a breach of article 2 and 20 of the Collective Agreement. The Employer denies that it contravened the Collective Agreement when it decided to surplus Mr. Osborne’s position.

2The parties called two witnesses. In his testimony, Mr. Osborne described the basis for his belief that management engaged in an improper exercise of its rights when it surplused his position. Mr. Al Tithecott, Director, Aviation, Forest Fire and Emergency Services (“AFFES”), provided a detailed explanation of the process and the reasons behind management’s decision to surplus some positions, including Mr. Osborne’s position. Mr. Tithecott’s testimony was supported by relevant documentary material. In determining the facts, I carefully reviewed the testimony of the two witnesses, the documentary evidence and the submissions of counsel relating thereto.

3MNR’s Provincial Services Division is responsible for the operational delivery of four province-wide programs and services, namely AFFES, Ontario Parks, Enforcement and Fish and Wildlife Services. The AFFES Branch has three front line operational areas: Forest Fire Management, Emergency Management and Aviation Services. It utilizes the Business Management Section and the Integrated Services Section to support the three front line operational areas. Communication is one of the support services provided by the Integrated Services Section. Mr. Osborne was employed as a Communications Advisor/Planner (IO3) in the Integrated Services Section, reporting to the Planning & Information Program Leader, Ms. Griffin. In addition to communications positions within the AFFES, the MNR also operates a Communications Services Branch (“CSB”). The CSB is based in Toronto and provides complete corporate communications support for all of the Ministry’s policy, program and operational areas.

4After an extensive operational review, the MNR identified six OPSEU represented positions that would be eliminated. Three of these positions were in the AFFES Branch, one of them being Mr. Osborne’s Communications Advisor/Planner position. The other three positions were communication jobs in the CSB. Of the six positions eliminated, five were Communication/Information related positions.

5In its disclosure letter to OPSEU dated November 1, 2011, the MNR advised as follows: “Following a review of the position of Communications Advisor/Planner, it has been determined that this position has become redundant due to some overlapping roles with Communications Branch staff. The Communications Advisor/Planner position will therefore be eliminated.” Mr. Osborne received pre-notice on November 17, 2011, that his position was to be declared surplus by formal Notice of Layoff issued on December 2, 2011. His layoff date was June 2, 2011. Mr. Osborne initially opted for redeployment, but as of March 3, 2012, he opted for pay in lieu of notice for the balance of his notice period and left the OPS.

6The Communications Advisor/Planner position is a strategic communications position. Its purpose, as reflected in a revised position description, is “to plan, coordinate, and implement outreach and communication strategies including communication planning, media and public relations, outreach initiatives, as well as development of communication and promotional material” for the Branch.

7After many years of working in the communications field outside the OPS, Mr. Osborne succeeded in obtaining the Communications Advisor/Planner position in the AFFES Branch in Sault Ste. Marie in May of 2007. He looked forward to utilizing his experience and skills to perform the full range of duties described in the position description. However, it was not long before Mr. Osborne took issue with the nature of the work he was assigned. His belief that management failed to follow the terms of the position description ultimately led him to file a grievance dated August 10, 2010, in which he requested, among other things, “that the terms of my position description, job content and terms of employment be adhered to.” The parties settled the grievance “without precedent and without prejudice” in December of 2010. As part of the settlement, the parties updated Mr. Osborne’s job description and they agreed that his “immediate supervisor and manager will continue to assist and guide the grievor as to his role and responsibilities as the branch Communications Advisor/Planner.” The parties also agreed that Mr. Osborne’s immediate supervisor and manager “will continue to search for other temporary opportunities within the Ontario Public Service for the grievor, outside of his role as the Communications Advisor/Planner.”

8Mr. Osborne testified that there were continuing issues concerning his role as a Communications Advisor/Planner after the settlement of his grievance. He also indicated that he believed that his supervisor and manager did not make any significant efforts to search for other temporary opportunities for him. It was these circumstances which led Mr. Osborne to conclude that the real reason the Employer decided to surplus his position was to get rid of someone it perceived as a problem employee. I note that Mr. Osborne did not file a grievance alleging a breach of the settlement of his earlier grievance.

9Mr. Osborne also believed that the Employer’s decision to surplus his position was arbitrary. This was based on the fact that his “senior” position was eliminated while a Communications Intern position was not touched. The Communication Intern position referenced by Mr. Osborne was held by Mr. M. Ward. The Job Ad for a Communications Intern position had a closing date of June 8, 2011. This position was one of the approximately 75 internship positions that the MNR offers to give fixed-term work placements to recent college/university graduates. The fixed-term intern position held by Mr. Ward ended on January 18, 2013.

10Mr. Tithecott became Director of the AFFES Branch in July of 2011. Before assuming the position of Director, he was General Manager, Response and Operations, and a part of the AFFES Branch management team. Contrary to the Union counsel’s submission, I find that Mr. Tithecott was able to provide direct evidence about the elimination of Mr. Osborne’s position in AFFES.

11Mr. Tithecott testified that recent Provincial Budget decisions caused all Ministries, including MNR, to review their business operations and core business objectives. The March 2009 Ontario Budget called for a five percent reduction