GSB#2013-4306

UNION#2014-0533-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Belsky)

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Michael Mandarino Cavalluzzo Shilton McIntyre & Cornish LLP Counsel

FOR THE EMPLOYER

Cathy Phan Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 26, 2014

Decision

1A grievance filed by Mr. Michael Belsky on January 21, 2014 (revised on January 27, 2014) came before the Board for mediation-arbitration under article 22.16 of the collective agreement. As revised, it reads:

STATEMENT OF GRIEVANCE

I grieve my rights have been violated when management arbitrarily removed me from position Application Analyst/Developer with Architecture, Information Management and PMO branch, Enterprise Application Portfolio to Business and Service Management branch of Central Agencies Cluster. My rights have been violated specifically but not exclusively under article 3.1, 6.6.1, 22.12.1, 2 of the Collective Agreement and 3.3 of the guide of Public Servant Ethical Conduct. The union reserves the right to rely upon any other applicable articles of the collective agreement, policies, legislations or rules of law deemed applicable. Please schedule a formal meeting to discuss and resolve this issue.

SETTLEMENT DESIRED

Full redress, Re-assignment to my rightful position in Architecture, Information Management and PMO branch. Any other rights that that I am entitled to.

At the commencement of the hearing following failed mediation, the employer raised two preliminary issues. First, that the grievance ought to be dismissed for failure to disclose a prima facie case for the violations alleged. Second, that the grievance was filed outside the 30 day time limit stipulated in article 22.2, and was therefore inarbitrable.

PRIMA FACIE MOTION

2The union had provided lengthy particulars in support of the grievances. As stated in Re Couture et al, 2008-3329 (Dissanayake), at para.6, “A prima-facie motion would succeed if the facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged.” The instant motion was argued on the basis of the union’s particulars, which for present purposes, are accepted as true. The issue then is whether the facts asserted in the particulars are capable of establishing the violations alleged.

3The union made a two-pronged argument. First, that the grievor was discriminated against because of his age in violation of article 3 of the collective agreement and the Human rights Code. Second, that the employer exercised its management rights under article 2 in bad faith, and in a manner which denied the grievor his rights under the collective agreement. Both parties relied upon numerous authorities from the courts, human rights tribunals, and this Board itself.

4From the union’s particulars, I discern the following salient facts. The grievor has been employed with the Ministry of Government Services since December 1999. He was employed within the Ministry’s Central Agencies Cluster, in the position of Application Analyst Developer (“AAD”) classified at the SO4 level. In March 2013, the government Services Cluster merged with the Central Agencies Cluster. As a result his home position of AAD was transferred to the Architecture, Information Management and Project Management Office (“PMO”) effective April 1, 2013. He was assured that there would be no change to his current work location, classification, salary or benefits. His position was still classified at SO4 and was coded as 17158. On October 11, 2013, the employer posted a positon titled Application and Technology Analyst (“ATA”), which also was classified at SO4 and had the same code 17158. On October 28, 2013, the grievor was advised that with immediate effect his position would be reporting to the Business and Service Management Branch (“BSMB”), and assured that there would be no change to his work location, duties, position description, salary or benefits.

5The grievor raised concerns about his transfer with the employer and questioned why the ATA position was posted and why he was not simply assigned to that position. He was told that he lacked project management experience. The grievor took the position that had he become aware of the posting he would have applied. In response, the employer offered the grievor the opportunity to be interviewed for the position. The grievor declined “due to his view that he was receiving differential treatment and consequently being disadvantaged, and due to the OPS survey statistic that 52% of people disagreed that the job selection process was conducted fairly”. For unrelated reasons the ATA posting was cancelled and re-posted on November 21, 2013. The grievor applied, but declined the invitation for an interview and did not participate in the job competition for the same reasons as the first time. He sought the intervention of the union. The union president made a written request that the grievor be placed in the ATA position. The employer declined.

6When the grievor started preforming full duties in the new year following the transfer to the BSMB, he realised that his job duties had changed and that he was performing management service duties. This was despite the assurance he received that there would be no change in his duties resulting from the transfer, and despite the fact that his position title remained unchanged. He raised his concerns with management, but was advised that his job duties were not negotiable. That led to the filing of the instant grievance. Following the grievance, in March 2014 his job description was revised and the position title was changed to “Service Management Analyst”. The position remained classified as SO4 and the code was unchanged.

7Age Discrimination

Union counsel acknowledged this Board’s jurisprudence to the effect that an employee’s belief, however strongly and sincerely held, that employer action was taken because of a prohibited reason is not sufficient, and that there has to be some objective evidence from which such a conclusion may be inferred. Re Damani 1581/95 (Gray). He relied on the following facts as capable of giving rise to an inference that the grievor was “pushed out” and his position posted, because of his age. The employer moved the grievor from branch to branch around the time he turned 65 years, the normal age of retirement. This could not have been a coincidence, it was submitted. The union pointed to a survey of OPS employees indicating that 18% of those surveyed were of the view that age discrimination was prevalent in the Ontario Public Service. Counsel submitted that in these circumstances the grievor was reasonably skeptical about the employer’s motivation.

8Accepting the foregoing assertions, that may at best show that the grievor was of the genuine belief that his transfer was in whole or part because of his age. However, the assertions are simply not capable of leading to a finding, even inferentially, that he was discriminated against because of his age.

Exercise of management right to transfer in bad faith.

9The union’s argument was twofold. First, that the transfer was tainted by bad faith. Second, that the employer’s exercise of management rights was improper because it impacted on grievor’s collective agreement rights.

10In Re Wong, 2010,-0756 (Dissanayake) at para 19, the Board wrote:

19The particulars indicate that the grievor was disadvantaged in several ways as a result of the change of position and duties. There is also a clear assertion that she was distressed by what transpired. It is also likely that the grievor sincerely believes that the employer acted in bad faith in the manner she was treated. However, a mere allegation of bad faith and a sincere belief that her allegation is well-founded is not sufficient to establish a bad faith exercise of management rights. The grievor’s subjective belief, however strongly and sincerely held, is insufficient. There must be some objective facts that could reasonably lead to a finding of bad faith. The particulars of the union do not disclose any objective facts which could lead to a finding of bad faith. They only would establish that the grievor was adversely impacted by management action.

That reasoning equally applies here. Unlike in that case, here there is no assertion of any real adverse impact on the grievor’s employment as a result of the transfer. The assertion is that he was required to perform different duties, when the employer had assured him that his duties would not change. An employee has no right of ownership in duties and responsibilities he/she performs. In the absence of a claim that legally such a right accrued to the grievor as a result of the promise, these facts cannot be the basis for a finding of bad faith.

11The second argument is related to the foregoing. The union conceded that it is obliged to establish on a prima facie basis that the manner of the employer’s exercise of the management right to transfer the grievor negatively impacted on a substantive right the grievor had under the collective agreement. Re Bousquet, 541/90 (Gorsky). There the Board at p. 63 held that the exercise of managerial rights should not be “a disguised means of achieving impermissible ends based on discrimination or other grounds unrelated to the making of genuine management decisions”. The union submitted that in this case the employer did exactly that by discriminating against the grievor because of his age, and disguising it as a transfer. However, as held above, the union has asserted no objective facts that support its allegation of age discrimination. Therefore, the argument that the transfer negatively impacted on the grievor’s right to be free from age discrimination fails.

12The union also contends that the grievor’s transfer was contrary to his right under article 6.6.1 of the collective agreement to be assigned to the vacancy for the ATA position. The employer cannot, it submits, exercise its management right to transfer the grievor in a manner that denies the grievor his right under that provision. The Board finds that article 6.6.1 does not confer a right on the grievor to be assigned to the ATA or any other vacancy. That article provides that, “with the agreement of the union, the employee and the employer, an employee may be assigned to a vacancy”, where two conditions are met. Assuming that the two conditions are met in the circumstances of the ATA vacancy, it still confers no right of assignment on the grievor. It merely gives the employer the discretion to fill a vacancy by assignment with the consent of the union and the employee. The provision exempts the employer from the obligation it otherwise has, to post and fill vacancies through a competition process stipulated in the collective agreement. It does not impose an obligation on the employer to resort to that provision, even if all of the pre-requisites are satisfied. This is signified by the use of the phrase “may be assigned”, rather than “must” or “shall” be assigned.

13For all of the foregoing reasons, the Board concludes that the union and the grievor have failed to make out a prima facie case substantiating the instant grievance. The employer’s motion therefore succeeds. Given that disposition, it is unnecessary for the Board to address the employer’s alternate motion that the grievance was filed outside the time limits. The grievance is therefore dismissed.