GSB#2012-0437

UNION#2012-0468-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Vingar)

Union

• and -

The Crown in Right of Ontario

(Ministry of Health and Long-Term Care)

Employer

BEFORE

Michael Lynk

Vice-Chair

FOR THE UNION

Katherine Ferreira

Koskie Minsky LLP

Barristers and Solicitors

Counsel

FOR THE EMPLOYER

Roslyn Baichoo

Ministry of Government Services

Legal Services Branch

Counsel

HEARING

February 14, 2014

Decision

Introduction

1This grievance deals with the propriety of a surplus notice given to the grievor, Ms. Toni Vingar, in December 2011, and the subsequent surplus redeployment search. The nub of the grievance goes to whether Ms. Vingar’s immediate employer, the Ministry of Health and Long Term Care, properly considered the actual level and content of her work at the Ministry in the period of time leading up to the surplus notice, and whether, as a consequence, it breached the governing collective agreement by delivering a surplus notice to her and through its subsequent redeployment search for an appropriate vacant position for her.

2At the conclusion of the Union’s evidence in this matter, the Employer made a motion for a non-suit, arguing that I should dismiss the grievance on the grounds that the Union has not presented a prima facie case that demonstrates a violation of the collective agreement. The Union resisted the motion. After recounting the evidence, I have ruled that the Employer has made out a successful claim for a non-suit motion, and I have dismissed the Union’s grievance on that basis.

Evidence

3The evidence was largely uncontroversial and unchallenged. However, given that the parties have asked me to drawn quite different conclusions from it in the context of the non-suit motion, it is important to set out the evidence in some detail.

4Ms. Toni Vingar has been an employee of the Ontario Public Service (OPS) since 1 November 1986. She initially started her career in the OPS with the Ministry of Government Services, and moved to the Ministry of Health in February 1988, where she has worked ever since. For all relevant time periods, she has been employed in the technology field. Beginning on 1 February 2001, she commenced worked as a Change Control Officer, classified as a System Officer 3 (SO3), with the Technology Management and Solutions Integration Branch of the Health Services I&IT Cluster, at the Ministry of Health and Long Term Care in its Kingston office.

5On 2 December 2011, Ms. Vingar received a formal surplus notice from her employer to the effect that her position was going to be declared surplus, with a stated layoff date of 2 June 2012. She had already received a pre-notice letter from the employer dated 17 November 2011, which had alerted her to the impending surplus notice. This earlier letter laid out three options for her:

i. Exit with Pay-In-Lieu of Notice: This option would have provided Ms. Vingar with a non-retirement exit package, should she have decided that she wanted to end her employment in the OPS.

ii. Redeployment: This option would have allowed Ms. Vingar to attempt to remain employed with the OPS, and would require the employer to search for an appropriate vacant position within the six-month notice period after the delivery of the formal surplus notice.

iii. Retirement: This option would have permitted Ms. Vingar to retire from the OPS, if she was eligible under any of the various retirement formulas.

6For a variety of quite understandable personal reasons, including the fact that she was too young to retire and she was not in a position to look elsewhere in the broader labour market for a similar position, Ms. Vingar selected the second option. This redeployment option laid out a number of governing conditions, some of which are anchored in Article 20.3.1 of the Collective Agreement. Some of the pertinent conditions include:

• The employee would remain employed for six months after receiving the surplus notice, during which time he or she would be considered for direct assignment to a vacancy or a Voluntary Exit Opportunity if one became available;

• The vacant position is required to be within a range of classifications whose maximum rate is 5% above and 15% below the maximum rate of the employee’s classification;

• The employee is qualified to perform the required duties of the vacant position;

• 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;

• The employee is required to complete an employee portfolio to assist in the redeployment search;

• If the employee is not assigned to a position within five months of the surplus notice, then the affected employee has the right to displace another employee with less seniority, subject to a variety of detailed conditions; and

• If the employee is not assigned to a vacancy or does not choose a Voluntary Exit Opportunity before the layoff date, he or she retains recall rights for 24 months dating from the layoff.

7Ms. Vingar submitted her employee portfolio to the Employer on 1 December 2011.

8OPSEU filed a grievance on behalf of Ms. Vingar on 20 January 2012 pertaining to the surplus notice. The grievance stated the following:

The grievor alleges a violation of, but not limited to, Article 2, Article 8 and

Article 20 with regards to the surplus notice issued Friday, December 2nd, 2011.

As a remedy, the grievance requested the following:

Grievor requests the employer created [sic] a position that reflects the actual work the grievor has been doing over the past 18 months and assign the grievor to this position on a permanent basis. Grievor shall be made whole.

9On 1 May 2012, as Ms. Vingar was completing the five month point of her notice period, the Employer advised her in writing that it had been unable to find a displacement position for her. The letter notified Ms. Vingar that she would remain on working notice until 2 June 2012, when her lay-off would be triggered.

10Subsequently, on 31 May 2012, the Employer wrote to Ms. Vingar, notifying her that she was eligible to displace into a system tester position in the Kingston office of the Ministry. She elected to do so, and she has been in this position ever since. However, this job is classified as a System Officer 1 (SO1) position, which is two levels below the SO3 classification that Ms. Vingar had occupied since 2001. Pay-wise, the Union stated that Ms. Vingar was now earning somewhere between $14,500 and $17,500 less per annum in her new position.

11The thrust of the Union’s grievance before me goes to the purported changes in Ms. Vingar’s position as a Change Control Officer in the time period between 2009 and the receipt of the surplus notice in late 2011. The Union argues that, by late 2011, Ms. Vingar was no longer performing the duties of a Change Control Officer, even though she may have still been formally classified in this position. Rather, according to the Union, she was effectively performing the work of a Technology Support Analyst (which was also classified as a SO3 position). Thus, the Employer’s declaration that the Change Control Officer’s position was going to be surplussed should not have caused Ms. Vingar to be subject to a surplus notice, because the notice no longer accurately captured what she was actually doing. Accordingly, the Union submits that the Employer did not properly surplus and redeploy Ms. Vingar, and its actions were in breach of the collective agreement.

12As remedies, the Union has requested that (i) the Employer is to return Ms. Vingar to her SO3 classification; (ii) she is to be made whole in terms of salary, benefits and any other forms of compensation; and (iii) the Vice-Chair is to remain seized.

13The Union called Ms. Vingar as its only witness. In her direct testimony, she gave evidence on three points that are directly relevant to the grievance.

14First, Ms. Vingar described her work as a Change Control Officer, since she had been performing since 2001. Her principle task consisted of working on the Ministry’s mainframe computer in the production system. In sum, this consisted of entering programs into the Ministry’s computer system, and making any requisite revisions to the programs. It did not involve any servicing work. In the words of the job description for the position, the Change Control Officer is: “to provide and coordinate enhancements of the control system for system modification and development and to ensure accurate, timely and efficient retention of all production system programmes and other members for the Ministry. Provide guidance to clients, programmer and projects on the use of change management software on Multiple platforms.”

15Second, Ms. Vingar stated that, sometime in the late summer of 2009, her superiors at the Ministry office in Kingston – Mr. Ed Murphy, Manager of Technology Support, and Mr. Rob Smith, Senior Manager IT production Support – asked her to assume the duties of a Technology Support Analyst (TSA) within the Technology Management and Solutions Integration Branch on a temporary basis. The TSA position paid the same compensation as a Change Control Officer. In this position, Ms. Vingar explained that she was now assisting with the management of the technological changes that were occurring in the OPS in order to determine how they impacted upon the Ministry. When asked in direct examination what the differences were between her work as a Change Control Officer and her new work as a Technology Support Analyst, she provided a number of examples. These changes included the following: (i) whereas her old position was devoted to working only on the Ministry mainframe, she now worked on the mainframe, on networks, on power outages and on anything else that could affect the Ministry system; (ii) while, previously, she acted as a technology liaison within the Ministry, she now liaised with the change management officers in other ministries; (iii) while in her old position, she dealt only with programmers, she now was regularly going to meetings with the change advisory board within the Ministry, which included managers and other senior officers; and (iv) in her old position, she was not involved in granting final approval for changes, but she did assume this responsibility in her new work. The Union acknowledged that Ms. Vingar continued to perform some of the job duties of her home position as a Change Control Officer when she initially assumed the temporary TSA work, although by June 2011, she had completely ceased to perform any of her home position duties.

16The Union submitted Ms. Vingar’s Performance Development Plan and Appraisal Form for the April 2010 to March 2011 Fiscal Year period, which lists her as a Technology Support Analyst (SO3) and describes her tasks and evaluates her performance. It also submitted the equivalent form for 2011-12, which repeats this information.

17And third, Ms. Vingar testified that, when she received the Ministry’s pre-notice surplus letter dated 17 November 2011, she was shocked that it described her as a Change Control Officer. The Ministry’s 2 December 2011 formal surplus notice also called her a Change Control Officer. The employee resume that she completed and submitted on 1 December 2011 listed her as a Technology Support Analyst. She hoped that she would be able to continue to occupy the temporary TSA position.

18On cross-examination by Ms. Baichoo, Ms. Vingar acknowledged that her grievance, dated 20 January 2012, referred to her as a Change Control Officer. She explained that the Union advised her to list herself this way because that was how the two surplus letters referred to her position. Ms. Vingar also acknowledged that the human resources information kept by the OPS on-line, and which was accessible to her, listed her as a Change Control Officer through the relevant period after 2009. In response to a question from Ms. Baichoo regarding the fact that her employee portfolio stated that her Technology Support Analyst position was “temporary”, Ms. Vingar explained that she was advised to label her position as temporary because it had not gone through the final stages of approval.

19Ms. Baichoo asked Ms. Vingar about some purported discrepancies in the listed job duties for a Technology Support Analyst (TSA) contained in the 2010 description report for the TSA position developed by the Ministry, which were not replicated in the two performance development plans drafted by Ms. Vingar for 2010-11 and 2011-12 which lists her as a TSA. Ms. Vingar explained that she was not good at writing up what her duties were, but that the range of her performed duties was likely captured by a combination of all three of these documents together.

20At the close of the Union’s evidence, the Employer made a motion to non-suit the Union’s grievance.

Non-Suit Motion

Employer

21Ms. Baichoo for the Employer submitted that the Union’s evidence, put at its highest, did not establish a prima facie case that the collective agreement had been violated. Therefore, the grievance should be dismissed.

22She argued that the Employer followed the provisions of the collective agreement in surplussing and redeploying Ms. Vingar. The effect of the grievance’s request for remedies – that I should effectively change Ms. Vingar’s classification – is outside my jurisdiction and contrary to the prohibition stated in the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, s. 51, as amended.

23While considerable evidence from the Union was heard with respect to the alteration of Ms. Vingar’s duties from those of a Change Control Officer to a Technology Support Analyst, nothing in the evidence presented by the Union uncovered or established the grounds for a violation of the collective agreement. In particular, there is nothing in the language of any of the three articles of the collective agreement that were cited by the Union which can be linked to the evidence such as to establish a violation.

24Everyone involved in this grievance – the Employer, the Union and Ms. Vingar – have all acknowledged on the evidence that the TSA position was meant to be temporary, and that Ms. Vingar’s home position throughout the relevant time period was as a Change Control Officer. Furthermore, all of this falls within the rights of management as per Article 2. The issue is not one of fairness, but rather one of clearly-established contractual rights. For the Union to be successful on a surplussing grievance such as this, it would have to establish in law that an employee can avoid being surplussed from his or her home position by being in a temporary position. There is nothing either in the language of the collective agreement or the applicable caselaw to support such an argument. The only recognized exceptions to this are: (i) mal fides by the employer; (ii) a significant procedural error; (iii) improper notice; or (iv) evidence that the conversion did not occur. In this case, there is no evidence to support any of these exceptions.

25Ms. Baichoo relied upon the following caselaw regarding a motion for a non-suit: O.P.S.E.U. v. Ontario (Liquor Control Board of Ontario) (McGrady) (24 June 2013) (Lynk); O.P.S.E.U. v. Ontario (Ministry of Revenue) (Allin), [2010] O.G.S.B.A. No. 125 (Dissanayake); O.P.S.E.U. v. Ontario (Ministry of Government Services) (Couture et al) (23 March 2010) (Dissanayake); O.P.S.E.U. v. Ontario (Ministry of Transportation) (Whan), [2007] O.G.S.B.A. No. 7 (Dissanayake); and O.P.S.E.U. v. Ontario (Ministry of the Attorney General) (Gareh), [2002] O.G.S.B.A. No. 54 (Brown). She submitted that the prevailing test at the Grievance Settlement Board is represented in Gareh, which has subsequently been adopted by more recent rulings at the G.S.B.

Union

26Ms. Ferreira, for the Union, submitted that it had presented sufficient evidence to establish a prima facie case, and therefore the Employer’s motion should be dismissed.

27From the evidence, Ms. Ferreira emphasized that, while the Board cannot entertain arguments of fairness in this particular process, it can assess the Employer’s actions and its collective agreement obligations through a reasonableness standard. Article 20 of the collective agreement – which goes to employment stability rights – offers a number of protections for employees who are being surplussed or laid-off. On top of this, there is a general reasonableness obligation in Canadian law that all employers must satisfy and apply. In these circumstances, it was reasonable for Ms. Vingar to think that she was owed more consideration by the Employer than she received through the surplussing and redeployment process, given that, through no fault of her own, her transformation from Change Control Officer to Technology Support Analyst was never consummated.

28As for the Employer’s argument that s. 51 of the Crown Employees Collective Bargaining Act, 1993 prevented the awarding of the requested remedies, Ms. Ferreira stated that the Union was not seeking to have the G.S.B. alter Ms. Vingar’s classification, but simply to extend her collective agreement rights in a manner that would protect her status in the TSA position.

29Ms. Ferreira agreed that the Gareh test is the current standard for non-suit motions before the G.S.B. However, she cautioned that I should not accept too low a standard regarding the Employer’s obligation when advancing a non-suit motion. In particular, she submitted that I should carefully apply the “sufficient evidence” standard from Gareh in a manner that does not improperly disadvantage the party defending against a non-suit motion. In applied in this way, then the Union has satisfied the Gareh standard, and the Employer’s motion for a non-suit ought to be dismissed.

Ruling and Reasons

30In McGrady (supra), I wrote the following passage, which quotes extensively from earlier persuasive caselaw issued by some of my vice chair colleagues at the G.S.B. on the appropriate legal standard to apply when considering a non-suit motion. This remains good law:

The legal principles that govern the application of a motion for a non-suit have been set out in a number of rulings at the Grievance Settlement Board and in the general arbitral common law. The current state of the law on non-suit motions at the Grievance Settlement Board is aptly stated in three leading decisions: (Ontario (Ministry of Finance) and O.P.S.E.U. (Gauntlett), [2008] O.G.S.B.A. No. 133 (Gray); Ontario (Ministry on Transportation) and O.P.S.E.U. (Whan et al), [2007] O.G.S.B. A. No. 7 (Dissanayake); and Ontario (Ministry of the Attorney General) and O.P.S.E.U. (Gareh), [2002] O.G.S.B. A. No. 54 (Brown):

In Whan, Vice-Chair Dissanayake laid out the following principles to be considered in a non-suit motion:

1. The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case.

2. In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities.

3. In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side.

4. In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion.

5. In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.

6. In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence.

7. Where a non-suit motion is granted, a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written, will be issued.

In Gauntlett, Vice-Chair Gray, after citing these principles, quoted some useful additional commentary from Vice-Chair Brown’s 2002 ruling in Gareh:

The test to be applied is illuminated by the decision in Gareh, 1998-1665 etc. (Brown), where the parties agreed that:

my task in ruling on a motion for non-suit is not to determine whether the union has proven its case on the balance of probabilities, at least not in the way I would make that sort of determination after both sides had closed their cases

and that:

at this stage in the proceedings the credibility of the union’s witnesses should not be

scrutinized and all inferences reasonably supported by direct evidence should be made in

favour of the union and grievor

but disagreed about whether there had to be “sufficient evidence” or merely “some

evidence.” In the course of resolving that dispute Vice-Chair Brown made some useful observations at pp. 4-7 of his decision about the test and what courts have said about it:

The standard of “sufficient” evidence was adopted by the Ontario Court of Appeal in Hall v. Pemberton (1974), 1974 CanLII 468 (ON CA), 5 O.R. (2d) 438, page 439, where the Court quoted with

approval the following passage from Parfitt v. Lawless (1872), 41 L.J.P.&M. 68:

I conceive, therefore, that in discussing whether there is any case evidence to go

to the jury, what the Court has to consider is this, whether, assuming the

evidence to be true, and adding to the direct proof all such inferences of fact as in the exercise of reasonable intelligence the jury would be warranted in drawing

from it, there is sufficient to support the issue. (pages 72; emphasis added)

The only reasonable interpretation of “sufficient to support the issue” is adequate to

allow a jury to rule in favour of the party resisting the non-suit. In other words, a judge ruling on a non-suit motion in a jury trial, assuming witnesses to be credible and making all reasonable inferences in favour of the party resisting the non-suit, must determine whether the evidence is “sufficient” in the sense that it could lead a properly instructed jury to rule in favour of that party.

The standard of “sufficient” evidence was again applied by the Court of Appeal in Re Gallant and Roman Catholic Separate School Board of District of Sudbury (1985) 1985 CanLII 2248 (ON CA), 56 O.R. (2d) 160:

In dealing with such a motion, a judge must decide whether sufficient prima facie evidence has been presented by the applicant. At this stage, the plaintiff [opposing the motion] is entitled to have the facts interpreted in the manner which is most favourable to him or her: Hall v. Pemberton ... (page 167; emphasis added)

In advocating a lower standard of “some evidence,” counsel for the union relies upon

the decision of the Divisional Court in Ontario v. OPSEU (Cahoon), (1990), 37 O.A.C.

218 quashing a decision of the Grievance Settlement Board which had allowed a motion for a non-suit brought by the union in that case. The Court wrote:

The Board began by setting out its understanding of a non-suit. While it held

that a prima facie case had not been made out, its reasons make it clear that it

believed a prima facie case had to be established on the balance of probabilities.

This is, of course, incorrect. .... The standard of proof on a non-suit is that of a

prima facie case, not a case on the balance of probabilities. If a prima facie case has been shown a non-suit must not be granted. It is erroneous to determine a non-suit on the basis of the higher onus of the balance of probabilities. A prima facie case is no more than a case for the defendant to answer.

A motion for non-suit in modern practice is made by the defendant, contending that the trier of fact should not proceed to evaluate the evidence in the normal way, but should dismiss the action. The defendant must satisfy the trial judge that the evidence is such that no jury acting judicially could find in favour of

the plaintiff. The decision of the judge in both jury and non-jury actions is a

question of law. Sopinka, The Trial of An Action, p. 124 (Butterworths).

The “normal way” in a civil action would be on the balance of probabilities. Where

a judge is sitting with a jury, the issue is whether there is some evidence to support

the claim. If there is, the case goes to the jury. If there is none, it does not. (emphasis added)

The Divisional Court’s comment that a motion for non-suit should be dismissed if there is “some evidence to support the claim” must be interpreted in the context of the immediately preceding passage from Sopinka’s The Trial of an Action saying the issue to be determined by the judge is whether “no jury acting judicially could find in favour of the plaintiff.” Based upon the Divisional Court’s apparent approval of this passage, I understand the Court’s reference to “some evidence to support the claim” to mean evidence which could lead a jury (or some other trier of fact) to rule in favour of the party opposing the motion, if the trier of fact found that party’s witnesses to be

credible and made all reasonable inferences in its favour. This standard is no different in substance than the test of “sufficient” evidence utilized by the Court of Appeal in the Hall and Gallant cases.

In the case at hand, I must decide the motion for non-suit as well as serve as the trier of fact. At this stage, my task is to determine whether the evidence presented could be sufficient to lead me to rule in favour of the union, if I assumed its witnesses to be credible and drew in its favour all inferences reasonably supported by direct evidence.

It is not logically possibly to make this determination without taking into account the applicable standard of proof which is on the balance of probabilities. The question to be decided is whether I could rule that the union has proven its case on the balance of probabilities, if its witnesses are believed and it is granted the benefit of all reasonable inferences. The decision-making process on a motion for non-suit cannot ignore the standard of proof, but this process entails an application of that standard which differs markedly from the way it would be applied after both parties had closed their case. At that point, in determining whether the union had proven its case on the balance of probabilities, I would scrutinize the credibility of witnesses, and I would not draw inferences so as to resolve doubts in favour of the union, because the benefit of doubt should not be granted to the party bearing the onus of proof.

Vice-Chair Gray then went on to apply the “sufficient evidence” test in the case of circumstantial evidence, and ruled against the motion for a non-suit.

31Applying the “sufficient evidence” standard to the facts of this case, I am persuaded that the Union has not satisfied the Gareh standard, and I accept the Employer’s motion for a non-suit. I have arrived at this conclusion for three reasons.

32First, I accept the argument advanced by Ms. Baichoo that the deciding issue before me goes to whether there is sufficient evidence to support the Union’s submission that the collective agreement has been breached by the Employer’s actions. This case focuses on collective agreement interpretation and application. It is not an issue about fairness per se. One cannot litigate fairness as an abstraction, in the absence of the legal rules that shape fairness and give it context and teeth. As Arbitrator Dissanayake stated in Couture (supra), at para. 23: “...it suffices to note that the Board’s jurisdiction is not to dispense fairness, but to interpret and apply the terms agreed upon between the parties.” This case could be an issue about reasonableness, as employers have a general duty under Canadian labour law to apply collective agreements in a reasonable fashion: Canadian Union of Public Employees, Local 43 v. Municipality of Metropolitan Toronto (1990), 1990 CanLII 6974 (ON CA), 74 O.R. (2d) 239 (C.A.). However, the evidence before me is not sufficient to maintain a claim that the Employer in this case acted unreasonably in its treatment of Ms. Vingar throughout the surplussing and redeployment process.

33Second, after carefully reviewing the Union’s evidence, I am unable to detect a violation of any of the relevant articles in the governing collective agreement. In particular, the Union pleaded Articles 2, 8 and 20. A careful reading of Article 2 – which is a typical management rights clause – reveals no employee right that is engaged by the evidence presented by the Union. Similarly, a close review of Article 8 – dealing with temporary assignments – does not uncover any employee right that the evidence seriously suggests was engaged, let alone potentially breached. Finally, a liberal and detailed perusal of Article 20 – which details an array of employment stability rights – does not yield any potential violations when read against the evidence presented to me. Regarding Article 20, I have paid heightened attention to the provisions found in the preamble, and those dealing with notice and pay in lieu, redeployment, displacement and temporary vacancies, all areas that might be engaged in a surplus notice and redeployment process. After doing so, I am unable to find anything in the documents, testimony and arguments presented to me, even when put at their highest in favour of the Union, in a manner that would meet the sufficient evidence standard.

34And third, I accept the argument that the collective agreement between the parties assumes that surplussing and redeployment involves positions, not people. This is not a technical or mechanical perspective; rather, it is the appropriate conceptual way within contemporary industrial relations to understand the legal assumption of rights and responsibilities between the collective agreement parties when difficult decisions involving job reductions, work re-alignments, layoffs, recalls and re-assignments occur. Looking at the process in this way ensures that, to the extent possible, industrial relations justice is achievable through the appropriate balancing of individual, collective and institutional rights. In a case such as ours, it means that surplussing and redeployment decisions are made, or ought to be made, not with individual favour or disregard in mind, but with objectively established rules that are transparent, collectively arrived at, and evenly applied. On the facts of this case, I can find no legal fault with the Employer’s actions or decisions, applying the prevailing standard.

35Of course, the consequences behind all of these decisions are intensely human, and we can never forget this. Ms. Vingar has been, by all accounts, a good employee of the Ministry, and one can only have sympathy for her position. Due to larger employment forces beyond her control, she was forced to accept a lower classified position, with a substantial pay decrease, in order to maintain a job in the OPS and to continue to support her family. She felt that all of this was unfair, given the length of her service and her employment qualities. I fully acknowledge the source of these feelings. However, the legal judgement on whether the Employer’s actions towards an employee such as Ms. Vingar must be made on the basis of the applicable rules, agreements and norms. On that basis, the Employer has made out its submission that a non-suit motion is appropriate in these circumstances, and I so order.

Conclusion

36For the reasons provided, I grant the Employer’s motion for a non-suit. The Union’s grievance is dismissed.

37I am grateful for the professionalism displayed by both counsel throughout this case. They both represented their respective clients well.