GSB# 2013-0236

UNION# 2013-0532-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Raphael)

Union

• and -

The Crown in Right of Ontario (Ministry of Environment)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Jesse Gutman Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Kevin Dorgan Ministry of Government Services Legal Services Branch Counsel

HEARING

March 19, 2014

Decision

1At the first day of hearing into this matter the Union raised a preliminary issue. It requested that the Board order the Employer to proceed first with its evidence. To be clear, the Union conceded that it has the onus to prove its case, but asserted that in the interest of efficiency and fairness, the Employer ought to proceed first.

2Prior to the hearing, the Union provided the following facts to the Employer:

• The grievor is Pauline Raphael. Her Continuous Service Date (CSD) in the Ontario Public Service is June 30, 2008.
• At the time of her grievance, Ms. Raphael was employed in the Ministry of the Environment, Safe Drinking Water Branch (SDWB), as a Senior Drinking Water Inspector/Issues Coordinator (61509). That position was classified as an EO5.
• By letter dated July 14, 2011, the grievor was given a pre-notice of lay-off from her position.
• The grievor remained employed during the notice period and sought another position through redeployment (now targeted direct assignment) and displacement processes found in the Collective Agreement at Articles 20.3 and 20.4.
• By letter dated August 2, 2011, the grievor was given formal notice of lay-off from their [sic] position.
• The grievor prepared an Employee Portfolio and supplied those documents to the Employer on or around August 2011.
• The grievor successfully competed for a one-year temporary assignment as a Drinking Water Inspector (EO4) for the period of January 2, 2012 to January 2013.
• The grievor returned to her position in January of 2013, and by doing so entered the 6th month of her notice period.
• In this period, no position was identified for displacement for the grievor by the Redeployment Services Office (RSO).
• On January 28, 2013, a grievance was filed alleging a breach of Article 20, as no position was offered by the Employer by way of displacement provisions in the Collective Agreement.
• Deprived of the benefit of displacement, as applied by Article 20, the grievor was formally laid off on February 3, 2013.

3The Employer had also provided the Union with particulars as follows:

• The Employer is providing the following particulars without prejudice to any other position it may take in other surplussing cases with respect to the issue of particulars.
• The Union has targeted a displacement opportunity it alleges the Employer ought to have awarded to the grievor, namely, the Program Support Officer position (EO3 classification) in the Safe Drinking Water Branch (SDWB) of the Ministry of the Environment (MOE).
• The grievor, Pauline Raphael, worked in the position of Senior Drinking Water Inspector/Issues Coordinator (61509 – Environmental Officer 5). Ms. Raphael received per pre-notice of layoff letter on July 14, 2011. The grievor elected redeployment. The grievor received her notice of layoff letter on August 2, 2011. The grievor submitted her Employee Portfolio on August 9, 2011.
• In accordance with Article 20.4.1.1, the Redeployment Services office (RSO) reviewed potential displacement opportunities for the grievor within five months of her notice of lay-off, namely, starting in December 2011.
• On December 20, 2011 the RSO received notice that the grievor had won a temporary assignment which became effective January 2, 2012. As a result of the grievor winning this temporary assignment, RSO’s search for potential displacement opportunities for the grievor was placed on hiatus until January 2013, when the grievor returned from her temporary assignment.
• On July 24, 2012, during the grievor’s temporary assignment the Program Support office job description was revised.
• On January 23, 2013, RSO ran a displacement report and searched for potential opportunities for the grievor. One of the potential displacement opportunities related to the program Support Officer position (EO3 classification) in the SDWB of the MOE.
• On February 1, 2013, RSO referred the potential displacement opportunity for the grievor in the Program Support Officer position to the manager of the position. Two assessment rationales were provided by the manager to the RSO.
• The grievor was laid off on February 3, 2013.
• In 2013, the Program Support Officer job description underwent further revisions and a reclassification upwards to an EO4. This was due to the transfer of new work and responsibilities of the position.
• Effective April 1, 2013, Operations Division in the MOE transferred three new province-wide compliance programs to the SDWB. These three programs were: (1) Municipal Sewage Inspection; (2) Stormwater Inspection; and (3) Private Well Inspections. SWDB did not receive any additional staff resources or budget with this transfer. As part of the transfer of programs, job descriptions for all SDWB position, including the Program Support Officer (EO3) position, were rewritten to reflect the enhanced roles, responsibilities, accountabilities, stakeholder circle, impact of errors, etc., associated with the work inherited with the new inspection programs.
• As part of the transfer of programs, the new Water Project Coordinator (EO4) position took on responsibilities associated not only with the wastewater and stormwater subject matter but also handling the leading day to day responsibilities of the new Lead Compliance Program (Reg243) which impacts over 10500 Ontario Schools and Day Nurseries. The incumbent developed the new Risk-Based Lead Self-Reporting Compliance Program which included designing an electronic Inspection Survey which is completed by the regulated community and uploaded to him directly for audit and potential inspection.

4Because of the timing of further hearing dates already scheduled for this matter, the parties agreed that the Board would issue a “bottom line” decision with scant reasons. A full review of the considerations for this decision will be set out in the final award on the merits.

5Simply put, the Union’s view was that because of the facts in this case, specifically the two assessment rationales that were provided by the manager to the RSO, the Employer exercised its discretion to deny the grievor this redeployment opportunity and it is necessary to hear its reasons for doing so before the Union should be obliged to set out its evidence. Further, the inequality of information in this matter should cause this Board to order the Employer to proceed first with its evidence. Finally, the process would be fairer and certainly more expeditious if the Employer made known the basis upon which the grievor was denied the position.

6The Employer strongly objected to the Union’s request. It stated that there is no reason for this Board to stray from the well-established process obliging the Union to present its evidence first in non-disciplinary cases. Further, the Employer contended that the grievor must establish a prima facie case. The Employer submitted that the grievor is not qualified for the position at issue and noted that the Union’s particulars were virtually silent in this regard. It was urged that it is incumbent upon the Union to first establish that she is qualified. Indeed, it may be, that once the Union’s evidence has been heard, the Employer will elect to non-suit and if the Union’s request was granted, the Employer’s right to do so would have been denied. In the facts of this case, the Employer has provided considerable information regarding the position at issue and its rationale as to why the grievor was not qualified. Finally, it was asserted that there is no reason to believe that the hearing would be more expeditious if the Employer were ordered to proceed first. In any event, it would be wrong for this Board to do so according to the Employer.

7Both parties provided considerable jurisprudence both from this Board and from other tribunals and Boards of Arbitration. It is not necessary to set out all of those cases at this time. It is sufficient to say that I have reviewed those decisions and found them to be of assistance.

8After consideration of the submissions and case law put forward by the parties, I am of the view that the Union’s request must be denied. When pressed, the Union conceded that most of its concerns about any potential disadvantages to the grievor are protected with the right of reply. I believe this is the case and therefore, in the particular facts of this case, any concern about unfairness should be assuaged.

9While I appreciate that the Union conceded that it would have the legal onus in this matter and that its request was merely regarding the order of proceeding, that is not sufficient for this Board to stray from the usual path of hearing the grievor’s case first. I agree with the Employer that it would be wrong to order them to proffer evidence explaining why they chose not to award this position to the grievor before the Union establishes that there is a prima facie case that she is qualified for the position.

10Finally, and briefly, I am not convinced that this matter would proceed more expeditiously if the Employer presented its case first and even if I was, that is not sufficient reason to make such an order.