GSB#2012-1848, 2012-1849, 2012-1850, 2012-1851
UNION#2012-0532-0052, 2012-0532-0053, 2012-0532-0054, 2012-0532-0055
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Rolston)
Union
- and -
The Crown in Right of Ontario (Ministry of Environment)
Employer
BEFORE
Mary Lou Tims
Vice-Chair
FOR THE UNION
John Brewin Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
Stewart McMahon Ministry of Government Services Legal Services Branch Counsel
HEARING
February 25, 2014
Decision
1I have before me four grievances filed by Ms. Laura Rolston ("the grievor"), each dated June 29, 2012, and each alleging in identical terms that the Employer breached the collective agreement, and particularly article 20.4 thereof, in failing to assign her to the "appropriate displacement opportunity." Each grievance seeks "full redress" including that the grievor be "assigned to the appropriate position" with compensation. There were initially six such grievances before me, but the Union advised that it would not be proceeding with two of them.
2The Employer sought a preliminary ruling on three issues and the hearing was convened to hear the parties' submissions on the Employer's motions. Counsel agreed that this decision is issued pursuant to article 22.16 of the collective agreement and thus has no precedential value. They invited a "prompt decision" with "succinct reasons."
3The Employer asked me to rule on three issues:
(i) Is it open to the Union through the filing of four grievances to assert entitlement on the grievor's behalf to four different positions through the displacement process contemplated by the parties' collective agreement, or is the Union required to select one position and advance its case as it relates to that one position alone?
(ii) In the circumstances before me, was the Redeployment Services Office ("the RSO") required to consider the job description for the position held by the grievor as of the time that her position was declared surplus, and is such job description admissible in evidence before me?
(iii) In the circumstances before me, was the RSO required to consider Employee Portfolios revised by the grievor on July 19 and 23, 2012, and are such Employee Portfolios admissible in evidence before me?
4In addressing such issues, it is necessary to consider a number of provisions of the parties' collective agreement, including those set out as follows:
ARTICLE 20 – EMPLOYMENT STABILITY
20.1 PREAMBLE
20.1.1 Where a lay-off may occur . . ., the identification of a surplus employee . . . and the subsequent redeployment, displacement, lay-off or recall shall be in accordance with seniority subject to the conditions set out in this article.
20.1.2.1 Where a surplus employee has been identified in accordance with this Article, the Employer shall advise him or her in advance of providing notice of lay-off pursuant to Article 20.2.1. . . . Such advice shall be provided in writing, ten (10) working days in advance of formal notice of lay-off. . . .
20.1.2.2 On or before the end of the ten day period described in Article 20.1.2.1 above, the employee shall advise the Employer . . . of his or her decision either:
(a) to exercise rights under Article 20.2;
(b) to remain employed during the six-month notice period for possible redeployment or displacement pursuant to Articles 20.3 and 20.4 respectively.
20.1.2.4 An Employee Portfolio will be deemed to include the qualifications and knowledge as identified in the employee's current position description for the purposes of Article 20.3 (Redeployment) unless otherwise modified by the employee.
20.1.2.5 An employee may advise the Employer in writing at any time of his or her desire to update the employee portion of an employee portfolio to reflect the acquisition of new or improved skills, knowledge and abilities, and/or change the geographic parameters. Such changes shall be implemented within five (5) working days of receiving the updated employee portion of the employee portfolio.
20.2 NOTICE AND PAY IN LIEU
20.2.1 An employee identified as surplus shall receive six (6) months notice of lay-off or with mutual consent, an employee may resign and receive equivalent pay in lieu of notice. . . .
20.3 REDEPLOYMENT
20.3.1 An employee who has received notice of lay-off . . . 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:
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 . . ., 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 . . . .
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 surpluse 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 Article 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 . . . 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, or 20.4.1.5 with respect to positions beyond a forty (40) kilometre radius of his or her headquarters. . . .
20.4.1.7 Failing displacement under Article 20.4.1.2, 20.4.1.3, 20.4.1.4, 20.4.1.4 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 headquarter 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 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 . . . .
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 shall be deemed to have given up his or her right to displace and opted for redeployment under Article 20.3 (Redeployment).
ARTICLE 22 – GRIEVANCE PROCEDURE
22.7 LAY-OFF
22.7.1 Where an employee files a grievance, through the Union, claiming improper lay-off, and the grievance is referred to the GSB in accordance with Article 22.4, the Union shall notify the Employer, in writing, at least three (3) weeks prior to the date established for the Board's hearing, of the title and location of the position which will be the subject matter of the claim before the Board.
The Evidence
5For purposes of the Employer's motions only, the parties agreed to all relevant facts. They filed with me and relied upon an Agreed Statement of Facts together with documentary evidence. No viva voce evidence was called.
6Although article 20.1.2.4 of the collective agreement refers specifically to redeployment, the RSO has historically applied such provision to the displacement process as well. The RSO took the position that if no Employee Portfolio was filed by a surplus employee, it would use the employee's current position description report when conducting the skills analysis undertaken in searching for a displacement opportunity. Where the employee did file an Employee Portfolio, the RSO would deem the qualifications and knowledge to have been modified by the employee and consequently would use the Employee Portfolio rather than the position description report when conducting the skills analysis.
7Following the negotiations which led to the 2009 – 2012 collective agreement under which the grievances before me are filed, the parties jointly prepared Explanatory Notes regarding article 20 of the collective agreement. Such notes state that they "are not intended as a substitute for the language of the Collective Agreement" and that "reliance should only be placed on the actual text" of the parties' collective agreement.
8The note regarding Displacement states in part as follows:
Each surplus employee is asked to complete. . . an Employee Portfolio (EP) where the employee can set out their skills and experience. . . .
Where no EP is submitted, an employee's EP for the purpose of matching the surplus employee to a vacancy under Article 20.3 will be deemed to include the qualifications and knowledge as identified in the employee's current home position description, unless otherwise modified by the employee . . . .
Displacement rights exist 5 months after the receipt of the notice of lay-off. This allows for a comprehensive search for a direct assignment. There is only one opportunity to identify a displacement, in contrast to the search for a direct assignment which can continue throughout the notice period.
If, after 5 months, no direct assignment has been identified, the Employer is obligated to notify the employee about the existence of any displacement opportunity. This notification will occur on the 151st day of the notice period. . . .
The surplus employee may say "yes" or "no" to the identified displacement.
If "yes," the Employer will confirm when the employee will take over the position.
If "no," the employee has given up the right to displace. The employee will retain the remaining surplus entitlements including availability for a direct assignment. . . .
The Employer determines which employee, if any, will be displaced. There are 6 steps in the process. The steps are sequential. Each step must be fully exhausted before proceeding to the next step. The first employee identified in the sequence is the one and only person the surplus employee can displace.
9Article 22.7.1 of the collective agreement has been the subject of a longstanding dispute between the parties. The parties entered into a Memorandum of Settlement dated March 15, 2011, agreeing in part that "no grievances will be filed . . . regarding the Employer's Article 20.4 displacement determination unless and until no permanent position is identified for the subject surplus employee by the end of his or her notice period and he or she is laid off." The parties acknowledged that such agreement was "without prejudice or precedent to their respective positions regarding Article 22.7 of the Collective Agreement; i.e. whether an employee who files a grievance claiming improper layoff can assert (in one grievance or in multiple grievances) more than one position as the subject matter of the claim before the Board."
10The Union filed a grievance dated April 21, 2011 ("the April 2011 Union grievance") alleging that the Employer was in violation of the collective agreement, including article 20.1.2.4, by failing to consider and assess the qualifications and knowledge included in employees' current position descriptions for the purposes of article 20.
11On or about July 14, 2011, the grievor received a pre-notice providing her with ten working days advance notice of lay-off in accordance with article 20.1.2.1 of the collective agreement. Pursuant to article 20 of the collective agreement, the grievor was provided with three options. She elected the second of such three options, that contemplated that she would work through her notice period and remain available for redeployment.
12By letter dated August 2, 2011, the grievor was given formal notice of lay-off in accordance with article 20.2.2 of the collective agreement, such lay-off to have been effective February 1, 2012. Such notice "encouraged" the grievor to "complete and return an Employee Portfolio as soon as possible" and stated that if she did not do so, her Employee Portfolio would "be deemed to include the qualifications and knowledge as identified in the position description" of her "home position."
13The grievor completed an Employee Portfolio and submitted it to the RSO along with a supplementary Resume on August 2, 2011. The job description for the position held by the grievor as of the time she was declared surplus was not appended thereto.
14The grievor went on a short term sick leave of absence in the midst of her notice period which put the notice period on hiatus.
15The parties resolved the April 2011 Union grievance referenced above and signed a Memorandum of Settlement dated April 2, 2012. Pursuant to such Memorandum, the Employer agreed in part to amend the Employee Portfolio by adding the following: "Have you attached your current home position description? _ Yes_No." The Employer committed to use its best efforts to implement such amendment as part of a package of other amendments to the form agreed to by the parties, and by no later than September 1, 2012.
16The Memorandum of Settlement further states as follows:
When an employee does not submit an Employee Portfolio, the employee's Employee Portfolio for the purposes of matching the surplus employee to a position under Article 20.3 will be deemed to include the qualifications and knowledge as identified in the employee's current home position description.
The Employer agrees to consider any current home position description that is attached to an employee's Employee Portfolio after the date of signing of this Memorandum of Agreement.
The Union agrees that the above-noted grievance is withdrawn.
In consideration of the above paragraphs, the Union by executing this agreement release (sic) and forever discharges the Employer. . . of and from all . . . claims, complaints, grievances and demands of any nature and kind whenever arising. . . or otherwise arising out of the grievance, including but not limited to all claims arising under the Collective Agreement. . . .
17A displacement search for the grievor was conducted on June 18, 2012. At that time, the RSO identified potential displacement opportunities by conducting a one-time search. In the grievor's case, the RSO generated a Displacement Match Report that indicated five positions for which the grievor was eligible to displace a less senior incumbent. At the time in issue, once a Displacement Match Report was generated, an employee's skills and qualifications as indicated in his Employee Portfolio were compared to those required for the potential displacement positions to determine if the surplussed employee was "qualified to perform the work of the identified employee." At the time in question, the RSO did not consult the surplussed employee's own position description provided that the employee had filed an Employee Portfolio. A skills analysis in relation to the grievor was conducted at some point between June 18 and 25, 2012. The RSO concluded that the grievor was not qualified to perform the work of any of the positions identified and the grievor was so notified by letter dated June 25, 2012.
18The grievor filed six identically worded grievances on June 29, 2012 alleging a failure by the Employer to assign her to "the appropriate displacement opportunity." During the grievance procedure, the Union identified six positions into which it asserted the grievor was entitled to bump.
19The grievor was not directly assigned to a vacancy, nor was a displacement opportunity identified. She was laid off on July 18, 2012.
20The grievor updated her Employee Portfolio on July 19, 2012 and again on July 23, 2012. Such Employee Portfolios did not include the grievor's position description report.
Number of Grievances
21The Employer asked me to rule that it is not open to the Union to advance more than one claim to a displacement opportunity for the grievor through the filing of multiple grievances, but that the Union must select one position only to which it asserts the grievor was entitled.
22Employer Counsel thoroughly reviewed the detailed provisions of article 20 of the parties' collective agreement, and characterized such language as "process heavy."
23Counsel noted that the redeployment or direct assignment component of the process addressed in article 20.3 is not a "one-time" step, but rather, is potentially undertaken over the six month notice period, unless and until a surplus employee is redeployed.
2424. The Employer emphasized that this is in contrast to the displacement component of the process addressed by the parties in article 20.4. It argued that the search for displacement opportunities is carefully defined and prescribed, and is a one-time exercise in which the Employer is required to engage at a specific and defined point during the notice period. Similarly, in the Employer's submission, not only have the parties specifically agreed upon a single and defined displacement search exercise by the Employer, but they have also spelt out in the same precise manner the specific and time limited steps that follow the identification and offer of a displacement opportunity.
25In support of its position, the Employer referred to the decisions in The Crown in Right of Ontario (Ministry of Natural Resources and Management Board Secretariat) and OPSEU (Union Grievance), June 17, 1996, unreported; GDX Automotive and United Steelworkers of America, Local 455, [2007] O.L.A.A. No. 90; and The Crown in Right of Ontario (Metrolinx – GO Transit) and Amalgamated Transit Union, Local 1587 (2010), 199 L.A.C. (4th) 118.
26The Employer relied upon article 22.7.1 of the parties' collective agreement, emphasizing the parties' use therein of the singular word "position." Counsel urged me to conclude that the Union here is required to identify a single position to which it advances a claim on the grievor's behalf.
27The Employer noted that the Union filed six identically worded grievances, four of which the Union continues to seek to advance to arbitration. It argued that despite what it characterized as an attempt on the Union's part to circumvent article 22.7.1, in essence the Union has before me a single grievance alleging improper layoff through alleged failure to identify a displacement opportunity in accordance with the collective agreement. In the Employer's submission, the filing of multiple grievances in these circumstances constitutes, at least in a "technical sense," an abuse of process, and does not negate the clear language of article 22.7.1 that limits the Union to advancing a claim to a single position.
28Such conclusion, in the Employer's view, is consistent with the contractual language and the authorities relied upon, and is the only interpretation leading to an efficacious result.
29The Union, in response, asked me to deny the Employer's motion and to refuse to limit the Union's right to advance at arbitration more than one claim on the grievor's behalf to a displacement opportunity.
30The Union considered the arbitral authorities relied upon by the Employer, and denied that they support the position that the Employer urges upon me here. It referred specifically to the decision in Ministry of Natural Resources and Management Board Secretariat and OPSEU, supra, and argued that such case was distinct from that before me here, insofar as the Board was not asked to determine whether the Employer failed to make the correct decision pursuant to the collective agreement at the time that a displacement process was undertaken, but rather, to reopen "after the fact," the process mandated by the collective agreement.
31The Union addressed article 22.7.1 of the parties' collective agreement, and suggested that it provides for efficacy of process insofar as it requires that the Union notify the Employer of the position to which it advances a claim. In Union Counsel's submission, if the parties are to be understood as having agreed to bar or limit the Union's right to advance at arbitration a claim that the Employer failed to identify and offer displacement opportunities to a surplus employee as required by article 20.4, express language not found in article 22.7.1 would be required to reflect such shared intention.
32The Union argued that it is free not only to advance more than one claim to a displacement opportunity at arbitration, but also to choose the order in which it pursues such claims. Counsel noted that it may be that the grievor would prefer any given displacement opportunity over another, and that it is for the Union to decide upon the order in which it will proceed with such claims at arbitration.
33In response to my questions, he articulated as an alternate position that if I accept that the Union can advance more than one claim to a displacement opportunity, that is open to me to order that the Union do so in the order in which the Employer was required to address and consider displacement opportunities pursuant to article 20.4.
34The Employer argued in Reply that if I find that the Union can advance more than one claim to a displacement opportunity, that I must at the very least require the Union to advance such claims in the same order in which the Employer was required under article 20.4 to consider the displacement opportunities sought before me. In the Employer's further submission, it then follows that if the Union is successful on the merits of any given grievance, "that ends the matter" and there would be no basis upon which to proceed with the further grievances.
35Employer Counsel suggested, that to permit the Union to not only advance multiple grievances to arbitration but to do so in whatever order may accord with the grievor's personal preferences, would be to afford the grievor a right to choose a position without regard for the seniority of a potentially displaced employee. In the Employer's submission, this is not contemplated by the language of article 20.4 and would ignore the clear intention of the parties as reflected in the said provision that it is the least senior employee within defined parameters who is to be displaced.
36I accept the Employer's assertion that article 20.4 of the parties' collective agreement defines in a methodical and detailed fashion a one-time process to be undertaken in seeking a displacement opportunity for a surplus employee. I accept as well that in contrast to the redeployment component of the process addressed in article 20.3 which may unfold on an ongoing basis over the entire notice period, the Employer is obliged to engage once and at a specified point of the notice period in a process aimed at identifying a single displacement opportunity.
37While I recognize that the Explanatory Notes in evidence before me "are not intended as a substitute for the language of the Collective Agreement," I note that they suggest a joint understanding that there "is only one opportunity to identify a displacement, in contrast to the search for a direct assignment which can continue throughout the notice period."
38That said, although the Employer is required to engage in such search for a displacement opportunity only once and only at a defined point of the notice period, it is also clear that it is required at that singular time to engage in a potentially multi-step process. Employer Counsel reviewed the sequential steps of the process set out by the parties in article 20.4 and described "a series of expanding concentric circles" to be considered by the Employer during the one- time search for a displacement opportunity either until a "singular" displacement opportunity is thereby identified, or where no such opportunity is identified, until the multiple steps of the process set out in the collective agreement are exhausted.
39To the extent that the Union asserts that the Employer erred in its assessment at various stages of such one-time, but multi-step process, I respectfully reject the Employer's submission that the Union is limited to advancing at arbitration a single claim to a displacement opportunity which it asserts should have been identified through such process. I have considered article 22.7.1 in the context of article 20 and the arbitral authorities relied upon by the Employer. Article 22.7.1 requires that the Union notify the Employer in advance of arbitration of "the title and location of the position which will be the subject matter of the claim before the Board." I agree with the Union that before I find that the parties intended to bar or limit the Union's ability to advance at arbitration claims that the Employer erred at more than one step in its one-time consideration of the series of "expanding concentric circles" mandated by article 20.4, I must be satisfied that such agreement is clearly reflected in the contractual language before me. I am unable to so conclude here. I do not accept that the Union engages in an abuse of process here to the extent that it seeks to challenge the Employer's assessment at various stages of a multi-step process. I therefore deny the Employer's motion seeking to limit the Union to advancing a single claim to a displacement opportunity on the basis of such language.
40In so finding, I have considered the arbitral authorities relied upon by the Employer, and particularly, the decision in Ministry of Natural Resources, supra.. I accept, as did the Board there, that once the Employer identifies a displacement opportunity in accordance with the terms of the collective agreement, it would not be open to the Union to demand that the process be "re-opened" and "re-done." That is not, in my view, what the Union seeks here.
41While I do not accept the Employer's position that the Union can proceed to arbitration with only a single claim on the grievor's behalf challenging the Employer's assessment under article 20.4, nor do I accept the Union's argument that it is open to it to advance multiple claims to arbitration in whatever order may accord with the grievor's personal preferences.
42As addressed above, I accept the Employer's assertion that article 20.4 sets out and defines in some detail a sequential process in which the Employer is required to engage in seeking a displacement opportunity for a surplus employee. I note in particular that article 20.4.1.10 of the collective agreement states that "an employee who does not indicate in writing . . . his intention to displace within the time period stipulated . . . shall be deemed to have given up his . . . right to displace. . . ." I agree with the Employer that under the terms of the collective agreement, although a surplus employee offered a displacement opportunity in accordance with the terms of the collective agreement is free to decline such opportunity, he is not entitled to do so and to demand the right to then displace into a different position held by a more senior employee. I agree with the Employer that the filing of more than one grievance alleging that the Employer failed at various steps of the one time displacement process to correctly identify displacement opportunities does not permit the grievor to "sidestep" the mandated process, and to assert entitlement to a displacement opportunity in anything other than the order in which the Employer was contractually required to seek such a position.
43Accordingly, while I deny the Employer's motion and decline to order that the Union can only advance one claim to a displacement opportunity at arbitration, I find that in the absence of agreement otherwise by the parties, to the extent that the Union chooses to proceed to arbitration with more than one grievance asserting such entitlement, it must do so in the very order in which the Employer was required to proceed pursuant to article 20.4. I find as well, as urged upon me by the Employer, that if and when the Union is successful on the merits of a grievance so advanced claiming entitlement to a specific displacement opportunity at any stage of the sequential process set out in article 20.4, there would be no basis upon which the Union could then claim entitlement to another displacement opportunity which the Employer would not then have been required to consider under article 20.4.
Admissibility of Evidence
44The Employer took the position that the RSO was not required in the circumstances before me to consider the job description for the grievor's home position when searching for a displacement opportunity for the grievor in accordance with article 20.4 of the collective agreement. Similarly, the Employer urged me to find that the RSO was not required under the terms of the collective agreement to consider the two Employee Portfolios revised by the grievor in July 2012. The Employer argued that the RSO was not obliged to consider such documents, and that they are therefore not admissible in evidence before me.
45The Employer relied upon the evidence that the grievor did not attach to her Employee Portfolio submitted in August 2011 the job description for the position she held at the time.
46The Employer noted the evidence that as a matter of policy, if an Employee Portfolio was provided to the RSO, the RSO did not then seek out the job description for the surplus employee's home position to use in the matching process, but rather, relied upon the Employee Portfolio instead.
47Employer Counsel acknowledged that in "ordinary circumstances," it would be incumbent upon me to determine if the RSO should have considered the job description.
48In the Employer's submission, however, the Memorandum of Settlement executed by the parties in April 2012 resolving the Union's Policy grievance changes this. The Employer referred to the memorandum and suggested that the parties agreed that from April 2012 onward, the RSO was obliged to consider a surplus employee's home position job description if, and only if, it was attached to the Employee Portfolio. The Union's grievance was withdrawn in part on that basis, and a release was provided to the Employer.
49The displacement search for the grievor here was conducted in June 2012.
50The Employer argued that in light of the withdrawal of the Union's April 2011 grievance and the release set out in the April 2012 Memorandum of Settlement, it was not open to the Union or to the grievor to assert in these proceedings that the RSO was obliged in June 2012 to consider the job description for the grievor's home position. The Employer referred me to the decisions in The Crown in Right of Ontario (Ontario Clean Water Agency) and OPSEU, [2005]O.G.S.B.A. No. 83 and Weston Bakeries Ltd. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union 647 (1998), 1998 CanLII 30035 (ON LA), 76 L.A.C. (4th) 258 in support of its position.
51The Employer referred as well to the evidence that it engaged in the search for a displacement opportunity for the grievor in June 2012, as required by the collective agreement, and that the grievor was notified that such search was unsuccessful in June 2012 and was laid off July 18, 2012.
52The grievor updated her Employee Portfolio on July 19 and 23, 2012, after her layoff.
53While the Employer acknowledged that article 20.1.2.5 contemplates revisions to Employee Portfolios in defined circumstances, in its submission, there is no open ended or ongoing requirement that the Employer revisit and consider revisions. It argued that the RSO was not required to consider the Employee Portfolios revised after the displacement search as mandated by the collective agreement was complete, and after the grievor was laid off. It relied on the decision in Ministry of Natural Resources and Management Board Secretariat, supra, in support of its assertion that there is no ongoing obligation on the Employer to "re-do" the process contemplated by the parties' collective agreement.
54The Union did not assert that the RSO was required to consider the job description for the grievor's home position at the time she received her surplus notice nor that it was required to consider the two Employee Portfolios revised in July 2012. It argued, however, that such documents should nonetheless be admitted in evidence in these proceedings.
55While the Union accepted the Employer's assertion that article 20.4 of the collective agreement sets out a process agreed to by the parties, Counsel cautioned that such process is intended to serve the rights of surplus employees as articulated therein and not to "dominate" them.
56Counsel argued that article 20.4 provides a surplus employee with a right to displace a junior employee from another position for which he is qualified. In the Union's submission, such right is of fundamental importance and defines the scope of my inquiry. Counsel took the position that I am tasked with determining whether the grievor was qualified for a position and thus entitled to displace another pursuant to article 20.4. Accordingly, he suggested, any and all evidence relevant to the grievor's qualifications should be admitted before me.
57The Union referred to and relied upon the following authorities in support of its assertion that I should admit any and all evidence relevant to the issue of the grievor's qualifications: The Crown in Right of Ontario (Ministry of Government Services) and OPSEU (Gallucci), [2013] O.G.S.B.A. No. 50; The Crown in Right of Ontario (Ministry of Citizenship) and OPSEU (Henderson), March 31, 1992, unreported; The Crown in Right of Ontario (Ministry of Agriculture, Food and Rural Affairs) and OPSEU (Ansari), November 13, 1998, unreported; The Crown in Right of Ontario and OPSEU (Bouchard), October 30, 2002, unreported; and The Crown in Right of Ontario (Ministry of Labour) and OPSEU (Falco), July 3, 2013, unreported.
58Counsel was clear that, in the Union's view, I should admit and consider not only the evidence that the RSO considered or ought to have considered, but any evidence relevant to the grievor's qualifications even if it fell outside the scope of what the RSO considered or ought to have considered. In Counsel's submission, there is no principled basis upon which I should decline to do so. To the extent that I ultimately admit evidence beyond what the RSO considered or ought to have considered, the Union suggested that it is open to me to address what weight to give such evidence, and whether it should impact on any order for compensation ultimately made if any of the grievances before me is upheld on its merits.
59The Union asked me to find that the job description for the grievor's home position and the Employee Portfolios revised in July 2012 are relevant to the question of the grievor's qualifications, and should be admitted in evidence here.
60The Employer argued in Reply that the Union asks me here to engage in a de novo assessment of the grievor's qualifications, with no regard for the detailed process agreed upon by the parties and incorporated in article 20.4 of the collective agreement. The Employer urged me to reject such position that, in its view, essentially renders meaningless the complex provisions of article 20 and would essentially involve a "re-do" of the process in a manner that the Board found to be unjustified in Ministry of Natural Resources and Management Board Secretariat and OPSEU, supra..
61The Employer argued that although I am properly charged with determining whether the grievor was qualified for a position in issue, my determination must flow from the contractual language before me and must be based on the information that the RSO considered or ought to have considered in addressing displacement opportunities for the grievor in accordance with the process set out in article 20.4.
62In Counsel's submission, an analogy can be drawn with job competition cases. He suggested that the Board does not engage in a "freestanding de novo" inquiry in such cases and that there is no basis upon which it should do so here.
63I consider first the Employer's submission that the RSO was not required when engaged in the search for a displacement opportunity pursuant to article 20.4 to consider the job description for the grievor's home position which was not appended to the Employee Portfolio submitted in August 2011.
64The evidence establishes that although article 20.1.2.4 speaks only of redeployment, the RSO's practice prior to April 2012 was that when an Employee Portfolio was filed, the RSO used the Employee Portfolio rather than the position description of the surplus employee's home position when undertaking the skills analysis exercise in the search for a displacement opportunity.
65By the time that the displacement search process on the grievor's behalf was undertaken in June 2012, the parties had entered into an April 2012 Memorandum of Settlement resolving the April 2011 Union grievance challenging the Employer's failure to consider qualifications and knowledge included in the position descriptions of surplussed employees. On the basis of the parties' agreement set out in such Memorandum of Settlement, the Union's grievance was withdrawn and the Employer was released from all "claims . . . arising out of the grievance."
66I recognize that the grievor submitted her Employee Portfolio in August 2011 without appending a job description, after the Union's grievance was filed but months before the April 2012 Memorandum of Settlement was signed. I note as well that the April 2012 Memorandum resolved a Union grievance, and the Employer asks me to find here that it is not open to the Union to now assert in the arbitration of Ms. Rolston's individual grievance that her job description should have been considered by the RSO.
67On the basis of the argument before me, I nonetheless accept that in the circumstances here, the RSO was not required in June 2012 to consider the grievor's job description.
68I also accept that on the facts before me, the RSO was not required to consider the two Employee Portfolios revised in July 2012. The Employer acknowledged that article 20.1.2.5 contemplates revisions to such documents. I agree with the Employer, however, that there is no basis upon which the applicable contractual language can be construed so as to allow for an ongoing and open ended requirement that the RSO "re-open" and "re-do" the search for a displacement opportunity mandated pursuant to article 20.4, even after the search as contemplated by the collective agreement has been completed and after the surplus employee has been laid off as was the case here. I find support for such conclusion in the Board's decision in Ministry of Natural Resources, supra..
69Whether or not the RSO was required to consider the grievor's job description and the Employee Portfolios revised in July 2012, however, the parties disagreed whether such documentary evidence should be admitted before me.
70As noted herein, I accept that the parties have, through the language of article 20 and particularly that of article 20.4, specifically and in some detail agreed upon the process to be undertaken by the Employer in seeking a redeployment or displacement opportunity for a surplus employee. The Employer urged me to limit my assessment of the grievor's qualifications to the evidence that the RSO considered or ought to have considered in the context of such agreed upon process. How broadly or how narrowly one construes what ought to have been considered by the RSO has not yet been addressed before me. The Union, on the other hand, argued that there is no defensible basis upon which I should so limit my assessment of the grievor's qualifications, and that all evidence relevant to the issue of qualifications should be admitted, even where there is no suggestion that such evidence ought to have formed part of the RSO's consideration under article 20.4.
71To the extent that the Union asks me here to admit any evidence relevant to the grievor's qualifications, even where there is no suggestion that such evidence should have in some way informed the RSO's consideration under article 20.4, I am unable to accept such assertion.
72The Employer asked me to find that the job description and the two revised Employee Portfolios are not admissible in evidence before me. I accept, on the specific facts before me, that such documents cannot be viewed as coming within the scope of what the RSO should have considered under article 20.4 and, on this basis, find that such documents are not admissible in evidence here.
73I recognize that there may be some dispute between the parties when the merits of any of the grievances are heard as to the scope of the viva voce evidence properly before me, and specifically, as to what should have been considered by the RSO and as to how broadly or strictly the grievor's Employee Portfolio is construed. I have yet to hear the parties' submissions in this regard, and express no view therefore on such matters.
74My rulings set out herein address only the motions raised thus far by the Employer, and do not purport to address evidentiary objections not yet before me.
75I retain jurisdiction in these matters and the hearing will proceed as scheduled.
Dated at Toronto, Ontario this 7th day of March 2014.