GSB#2011-3339, 2011-3623

UNION#2011-5105-0004, 2011-5105-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Paolo/Nahm)

Union

• and -

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

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Ministry of Government Services Legal Services Branch Counsel

HEARING

November 4, 2013

Decision

1Soo Nahm and Danielle Paolo are fixed term Pay & Benefit Specialists who filed grievances alleging that the Employer has violated the Collective Agreement by failing to convert them to classified status. By way of remedy each sought “conversion to classified status with no probationary period.”

2At the outset of the hearing the Employer raised a preliminary motion that these grievances should be dismissed because the particulars provided by the Union reveal no prima facie case.

3The particulars in this matter state:

Danielle Paolo

• The grievor was on a series of fixed term contracts starting on August 6, 2009, following a summer student position from June 8 – July 25, 2009. However, the relevant periods for this grievance for this grievance are 3 sets of fixed term contracts:

(a) August 26, 2009 until March 28, 2010 when she was on a fixed term contract (repeatedly extended in an OAD08 position.

(b) March 29, 2010 until August 21, 2011, the grievor was on a serious of continuous fixed term contracts in an OAD10 position.

(i) March 29, 2010 – April 30, 2010

(ii) May 1, 2010 – March 31, 2011

(iii) April 1, 2011 – August 21, 2011

(c)August 21, 2011 until January 27, 2012 the grievor was on a fixed term contract that was backfilling for an individual on LTIP.

• The Union alleges that the Employer improperly deprived the grievor of 18 months of continuous employment for the purposes of conversion under Article 31.A.15.11 in the following ways:

a. While the grievor was classified as an OAD08 she was performing the work of an OAD10 and therefore she has performed the work of an OAD10 for more than 18 months and ought to have been converted; or

b. From May 1, 2010 until March 31, 2011 the grievor was in a OAD10 contract replacing Shui Ng (for reason other than a leave of absence) and then she was subsequently given a contract replacing Christine Durrant (for a reason other than a leave of absence) which ended on August 21, 2011. However, Ms. Ng did not return to her position until June 2012 and it remained vacant for 1 month before another unclassified contract worker filled it. Had the grievor remained in Ms. Ng’s position and filled the next contract spot she would have obtained the 18 months to convert.

Soo Yeung Nahm

• On May 2, 2010 the grievor was rehired (her previous experience is not relevant for this grievance on a FXT as a Pay and Benefits Specialist at the OAD10 level.

• On March 12, 2011 the grievor signed a WEAR form to extend her contract to September 23, 2011.

• On August 5, 2011 the grievor was handed a letter by Mr. Serge Celebre, manager payroll. This letter was dated March 12, 2011 and advised the grievor that her contract would end on September 23, 2011. Mr. Celebre told the grievor that her contract was highly unlikely to be extended and that was because her continuous service date was getting close to 18 months and senior management did not want to convert anyone. Mr. Celebre also said he would continue to look for positions for her at 180 Duncan Mill.

• On September 8 2011 the grievor asked Mr. Celebre for an update with regard to a position and he told her that he discussed it with the managers from the 1st and 2nd floors and that there was nothing and none of the managers wanted to take a risk in hiring her because she might convert at 18 months.

• On September 14, 2011 Mr. Celebre advised the grievor that Mandy Chan, another payroll manager, would extend her contract with an OAD08 level post starting September 26, 2011.

• On September 15, 2011 Ms. Chan contacted the grievor and advised that she can extend her contract with an OAD08 position and that she would meet with her on September 19, 2011 to complete the WEAR form.

• On September 20, 2011 Ms. Chan advised the grievor that the extension was not approved by senior management because they were advised by HR that the work period of the OAD08 position would count towards the 18 months.

• On September 23, 2011 the grievor was advised by Ms. Elaine Witherall, Ms. Chan, and Mr. Celebre that they tried to get a position for her but it was not permitted by senior management. Another payroll manager, Ms. Amy Bonifaz, advised the grievor that she had an OAD08 position but did not get approval to hire her.

• On September 23, 2011 the grievor was advised by Ms. Joy Syncox, Payroll Service Manager, that she did not understand why the grievor was not extended over the concern about conversion and that she would find out what happened and bring her back before the 13 weeks elapsed.

• The Union alleges that the Employer acted in bad faith by rescinding the OAD08 position offered on September 15, 2011 and denying Amy the permission to hire the grievor for an OAD08 position in September 2011.

• The Union asserts that the grievor did not receive notice on March 12, 2011 and therefore she was entitled to 16 weeks notice starting August 5, 2011 which would have her contract extend past the 18 months and she would have been able to convert.

4Relevant provisions of the Collective Agreement are:

31A.15 CONVERSION OF FIXED TERM POSITIONS TO POSITIONS IN REGULAR SERVICE

31A.15.1.1 Where the same work has been performed by an employee in the Fixed-Term Service for a period of at least eighteen (18) consecutive months except for situations where the fixed-term employee is replacing a regular employee on a leave of absence authorized by the Employer or as provided for under the Central Collective Agreement, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Regular Service to perform that work.

31A.15.1.2 Where the ministry has determined that it will convert a position in accordance with Article 31A.15.1.1, the status of the incumbent in the position will be converted from fixed-term to regular, provided that the incumbent has been in the position in question for at least eighteen (18) months and provided the position has been cleared through surplus.

31A.15.1.3 For the purpose of Article 31A.15, “full time” shall mean a minimum of one thousand seven hundred and thirty-two and three-quarter (1,732.75) straight-time hours or one thousand nine hundred and twelve (1912) straight-time hours in each year, as applicable, including authorized leaves of absence. However, all hours worked by a fixed-term employee while he or she is replacing a regular employee who is on an authorized leave of absence shall not be included in computing the annual hours worked by the fixed-term employee.

EMPLOYER SUBMISSIONS

5Before beginning his submissions, Mr. Dailleboust, for the Employer, informed the Board that the parties have agreed to attempt to resolve the matter of the notice provision as set out above regarding Ms. Nahm. In the event that the matter is not resolved between the parties it will return to this Board in the event that this Board agrees with the Employer that there is no prima facie case.

6The Employer was prepared to accept the facts as set out in the particulars as proven for the sole purpose of this motion.

7Turning first to the facts regarding Ms. Paolo, it was the Employer contention that the particulars do not establish the necessary elements to establish a prima facie case. The grievor held two positions, OAD08 and OAD10. Irrespective of whether the grievor was of the view that the work she performed as an OAD08 and the work she undertook as an OAD10 was similar or identical, it is not the “same work” as considered in Article 31A.15.1. While there might be some overlap in duties, the test for this Board is whether the work done during the entire 18 month period is the same.

8Further, the convertible hours worked by Ms. Paolo as an OAD10 were those from March 29, 2010 up to and including August 2, 2011. That is not eighteen consecutive months. The work she performed backfilling for the employee absent due to LTIP is not time that can be considered for conversion purposes.

9The Employer contended that the Union’s view that work assignments were orchestrated in a way so as to avoid the conversion of the grievor is unsubstantiated. That assertion suggests that the Employer ought to have anticipated how events ultimately unfolded. The Union’s particulars hold no evidence that there was a plan to ensure the grievor was not converted. It was a matter of various work that was available at the time and offers of that work to the grievor. Accordingly, there has been no bad faith and no prima facie case because the grievor did not meet the 18 months of same work that is a condition precedent for conversion to regular employee status as set out in the Collective Agreement.

10Regarding Ms. Nahm, it was the Employer’s view that this grievor also failed to meet the conditions precedent for conversion. She held an OAG 10 position for sixteen and a half months. The person that held the home position which brought about the grievor’s work returned to their home position on the Monday following the end of the grievor’s contract.

11Mr. Dailleboust noted that all of the Union’s assertions regarding not providing a further contract were regarding an OAD08 position and so would not have put the grievor in a position that would cause her conversion. Accordingly, irrespective of whether the Union’s assertions of bad faith are true, it would matter not because the grievor would still not be in a position requiring conversion.

12The Employer relied upon Re OPSEU and MGS (Couture et al) GSB#2008-3329 (Dissanayake); Re OPSEU and MOE (Dobroff et al) GSB#2003-0905 (Dissanayake); Re OPSEU & MCSS (Pletikos) GSB#2011-0750 (Dissanayake); OPSEU & MAG (Conversion Grievances) GSB#461/96 (Briggs); Re OPSEU & MAG (McPhail et al) GSB#1873/97 (Briggs); and Re OPSEU & MCS (Lonsdale) GSB#746/89 (Fisher).

UNION SUBMISSIONS

13Ms. Letton, for the Union asserted that in both instances the Employer was attempting to circumvent the provisions of the Collective Agreement in an effort to deprive the grievors of the ability to achieve eighteen months which would bring about their conversion to regular employee status.

14Ms. Nahm was repeatedly told by various managers that the Employer did not want her to get to 18 months because it did not want her – or anyone else - to trigger the conversion provisions. Indeed, there was even concern that providing Ms. Nahm with an OAD08 contract might count toward the eighteen month threshold.

15Regarding Ms. Paolo, it was noted that the Collective Agreement states that the fixed term employee must be doing the same work. It does not say that the work has to be done in the same classification. This difference is important and might well lead to a finding for the grievor.

16Additionally, Ms. Paolo followed the path of Ms. Ng. to a certain extent. If she had actually continued to follow her as she undertook her various secondments, the grievor would have completed her eighteen months approximately seven months before Ms. Ng returned. That seven month period would have established the need for ongoing work.

17In conclusion the Union said that the fact that the Employer engaged in bad faith is clear. It ensured Ms. Paolo was not converted by having her perform the same work in two classifications and it did not allow her to fill in for Ms. Ng through her entire secondments. With respect to Ms. Nahm had the Employer given her another contract or gave her notice properly she would have reached 18 months. Accordingly the condition precedent has been met or has been improperly denied by reason of bad faith so the Employer’s motion must fail.

EMPLOYER REPLY

18The Employer contended that the Union cannot successfully assert that an OAD08 job is the same as an OAD10. To make such an assertion is a back-door attempt at a classification grievance which is statutorily prohibited. There is no evidence that this work is identical. Therefore this Board cannot find that the work is the same and without that evidence Ms. Paolo’s grievance must fail.

DECISION

19As agreed by the parties, I will not deal with the matter of the notice given to Ms. Nahm. The parties may resolve this matter but in any event, if I uphold the Employer’s motion this matter remains in dispute and may come before the Board at a later time.

20The Board’s jurisprudence stands for the proposition that in order for a no prima facie case motion to succeed, the asserted facts as set out in the particulars – which are assumed to be true – do not establish the necessary elements to substantiate the alleged violation of the Collective Agreement. In this case, the Union must have shown that the Employer violated Article 31.A.15.1.1 by failing to convert the grievors.

21Turning first to the grievance of Ms. Paolo, I am of the view that this matter must be dismissed. To be clear, the facts as set out by the Union do not establish a prima facie case.

22The Union contended that the work done by the Ms. Paolo in her OAD08 position and her OAD10 position was “the same work” as set out in Article 31.A.15.1.1. I cannot accept that assertion. While there may have been some overlap of duties, similarity of some duties is not sufficient for a finding of “same work.”

23In Re Mistry (supra), Vice Chair Verity was asked to determine if the grievor, who had worked as a Human Rights Officer 1 and a Human Rights Officer 2 should be converted. The Vice Chair found, as a matter of fact, that the grievor did not begin to perform the functions of an HRO2 until some three months after the actual classification change. However, at that time “a change in the character and content of the work performed by the grievor such as to effectively sever the ‘sameness’ of the work.” In the case at hand, it is difficult to believe that the character and content of the work of an OAD08 and OAD10 is the same.

24The Union also suggested that the Employer’s failure to continue Ms. Paolo’s OAD10 contract until the return of the absent incumbent into her home position is a violation of the Collective Agreement. Again, I must disagree. Ms. Paolo was replacing an individual who was absent for reasons other than a leave of absence. At the conclusion of that contract, the grievor was offered and accepted another contract to replace a different absent employee. The Employer did not fill the first position for a period of time after the grievor’s contract ended for reasons that are not known. However, according to the particulars there was a period where no one performed the work of that position. It may be that the Employer thought the employee was returning to their home position imminently and circumstances changed. In any event, the Employer was not obliged to extend that particular contract to the grievor if it chose not to have the work done. The fact that the Employer hired someone else at a later date to perform the work of that same absent employee is not sufficient for a finding of bad faith.

25Accordingly, the facts as set out in the particulars for Ms. Paolo reveal no prima facie case and the grievance is therefore dismissed.

26Addressing the grievance of Ms. Nahm, I am also of the view that the Employer’s preliminary motion must succeed. The Ms. Nahm worked less than 18 months in the position of OAD10. The Employer is entitled not to extend or renew a fixed term contract. There was no allegation or fact set out in the particulars that the very work done by Ms Nahm was immediately assigned to some other fixed term employee in an effort to circumvent an obligation to convert the grievor.

27It was stated in the Union’s particulars that Ms. Nahm was told that her contract would not be renewed because the Employer did not want to have to convert anyone. That is not a violation of the Collective Agreement absent bad faith. In my view, bad faith was not established in the particulars for Ms. Nahm.

28Generally speaking, management, according to Article 2, has the right to determine the work to be done and if it decides that the work being performed by an individual fixed term employee will come to an end, that determination is not a violation of the Collective Agreement. Certainly the exercise of this right must be congruent with the provisions of Article 31.A.15.1.1 and work cannot be manipulated for the purpose of circumventing its obligations to convert fixed term employees. However, there is nothing in the particulars set out by the Union that would lead me to find that this is what occurred for either of these grievors.

29The fact that Ms. Nahm was offered and then had rescinded an OAD08 contract is irrelevant to this determination. As noted above, even if that contract had been offered and accepted, that OAD08 work would be different work and therefore would not be taken into account for the purposes of conversion.

30For those reasons, both grievances are denied because there was no prima facie case established in the Union’s particulars.

31I remain seized of the issue regarding notice for Ms. Nahm. I ask counsel to inform the Board within thirty days of the disposition of this issue.