GSB#2009-0776, 2009-0777, 2009-0912, 2009-0913, 2009-0914, 2009-0973, 2009-1088, 2009-1089, 2009-1090

UNION#2009-0323-0003, 2009-0323-0001, 2009-0436-0001, 2009-0436-0002,

2009-0436-0003, 2009-0410-0001, 2009-0436-0004, 2009-0436-0005, 2009-0436-0006

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Dufour et al)

Union

and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Boris Bohuslawsky Eliot, Smith Barristers and Solicitors Counsel

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 2, 2013; January 16 & 23, February 6, July 14, December 8 & 15, 2014; January 23, 2015

Decision

1In September of 2004 the government announced that it would be closing Rideau Regional Centre and Huronia Regional Centre by the end of March 2009. Proximate to the closures, six residential counselors from Rideau Regional Centre (“RRC”) and two from Huronia Regional Centre (“HRC”) filed grievances that alleged improper surplussing. The grievors also contended that because the Employer did not ratify the new Collective Agreement until February 26, 2004 the “timing of the information’s release fell long after I was deemed surplus”. This failure to ratify earlier caused differential treatment because unlike others, they were not granted personal leaves of absence and it “was the Employer’s practice to grant unpaid leaves of absence in order for employees to access” Surplus Factor 80.

2Each of the grievors fell short of attaining access to Surplus Factor 80, some by a matter of a few days and some by a number of months.

3By way of preliminary motion, the Employer asked this Board to dismiss the grievances on the ground that there was no prima facie case because there is no provision of the collective agreement that has been violated. In a decision issued in February 2013 this Board denied the Employer’s preliminary motion and ordered the case to be heard and determined on the merits.

4The parties agreed to litigate the facts on an efficient basis. Some of the witnesses gave their evidence in chief by way of a “will-say statement” but were subject to cross-examination and re-examination. Further, some of the evidence was heard by way of teleconference.

5In the preliminary decision the Union’s particulars were set out in full. In order to understand the Union’s view of this matter it is useful to reproduce that some of that information a second time. The particulars for the Rideau Regional Centre included the following:

General Background

The grievances allege violations of the following provisions of the 2009-2012 Central Collective Agreement: Article 20.1.2.1 (consideration of options); Article 20.10.1 (Voluntary Leaves); Article 24 (Leave Without Pay); Article 80.1 (Term of Agreement); Appendix 9 (Employment Stability); Appendix 17 (Factor 80 Program).
Prior to their layoffs, which occurred as set out below, the grievors were employees of the Rideau Regional Centre (RRC). The Centre, operated by the Ministry of Community and Social Services, provided residential care for persons with developmental and physical disabilities. At the time of their layoffs, all the grievors were classified as Residential Counselors, and were members of OPSEU Local 436.
In September 2004 the provincial government announced that RRC would be closed by March 31, 2009. The final stages of the closure began to be implemented in or about September 2008.
All the grievors were members of the OPSEU Pension Plan.
The 2005-2008 Central Collective Agreement between the parties expired on December 31, 2008. Appendix 17 of that agreement had extended the Surplus Factor 80 program to December 31, 2008. Pursuant to Appendix 9 of the 2005-2008 Central Collective Agreement, a “pension bridging option” was made available to surplussed employees. According to s. 2(b) of Appendix 9,

. . . employees who have been declared surplus may take a pension bridging option as a leave of absence without pay but with the continued accrual of pension credits, if the sum of:

(i) the six (6) month notice period;

(ii) the number of weeks of paid leave of absence that the employee’s termination payments can be converted into under the current provisions of Articles 52 or 78 (excluding attendance credits); plus

(iii) a maximum of two (2) years leave of absence without pay, but with continued accrual of pension credits,

would bring the employee to the next earliest date on which he or she could exercise an actuarially unreduced pension option under the OPSEU Pension Plan.

With respect to eligibility for Surplus Factor 80 under the 2005-2008 Central Collective Agreement, it was the practice of the RRC human resources department to inform employees of the option of applying for an additional unpaid leave of absence as a means of extending service credits, where this was necessary to enable the employee to access Surplus Factor 80, with the bridging option. In such circumstances, if the request was granted, the reason for the leave was recorded as access to employment in the community, education, or other reasons.

6a. A Memorandum of Settlement for the 2009-2012 Central Collective Agreement was signed on December 23, 2008. On December 24, 2008 a bargaining unit employee attended the RRC human resources department and advised that the Surplus Factor 80 program had been extended in the new Collective Agreement. Ms. Faye Code was aware that this information had been provided.

The 2009-2012 Central Collective Agreement was ratified on February 26, 2009. Article 17 of that agreement extended the Surplus Factor 80 program to December 31, 2012. The pension bridging option was also renewed in the 2009-2012 Central Collective Agreement, in Appendix 9.
In late 2008, employees of RRC facing surplus were given an opportunity to voluntarily register for “Variable Surplus Dates”. A Question-and-Answer sheet was issued by the Ministry of Community and Social Services with respect to Variable Surplus Dates.
The deadline for registering for Variable Surplus Dates, for surplussing in December 2008, was on or about December 15. In the event, however, no employees were issued surplus notices in December 2008.
Three grievors signed up for Variable Surplus Dates — Lori Egan, Elona Morley, and Mary Donovan.
Each of the grievors received a notice of surplus dated January 15, 2009, in accordance with Article 20B.1.2.1 of the Collective Agreement, together with an explanation of available exit options.
The grievors who had not registered for Variable Surplus Dates (Sandy Fournier, Brian Moore, Nancy Dodds) were given three options: Option #1 – Pay-in-Lieu; Option #2 – Pay-in-Lieu, Salary Continuance; Option #3 – Remain Available for Assignment. The grievors were required to select an option not later than January 29, 2009. Mrs. Fournier, Mr. Moore and Ms. Dodds all elected Option #3, Remain Available for Assignment.
The grievors who had registered for Variable Surplus Dates (Lori Egan, Elona Morley, Mary Donovan) were given two options: Option #1 – Pay-in-Lieu; Option #2 – Pay-in-Lieu, Salary Continuance. The grievors were required to select an option not later than January 29, 2009. Ms. Egan, Ms. Morley, Ms. Donovan all elected Option #2, Pay-in-Lieu, Salary Continuance.
At the time the surplus notices were issued, none of the grievors would have qualified for Surplus Factor 80 in the normal course, including with the bridging option, even assuming the programs would ultimately be made available again under the new Collective Agreement then being negotiated. In any event, the grievors were not given the option in their surplus notices of participating in Surplus Factor 80.
At the time the surplus notices were issued, the grievors were not advised that they may be eligible for Surplus Factor 80, with the bridging option (assuming these programs would be made available again under the new collective agreement), if they obtained a service extension in the form of an additional unpaid leave of absence.
At the time the surplus notices were issued, the grievors were not aware that Ms. Alison Kaczan (see below) had applied for, and been granted, a leave of absence, or that this could be done in an effort to achieve eligibility for Surplus Factor 80. With the exception of Ms. Mary Donovan (see below), none of the grievors applied for a leave of absence.
All the grievors received a notice of layoff dated January 30, 2009, in accordance with Article 20B.2.1 of the Collective Agreement.
In the case of those grievors who elected Option #2 (Ms. Egan, Ms. Morley, Ms. Donovan), the notice of layoff stipulated that their last day of work would be July 29, 2009.
In the case of those grievors who elected Option #3 (Mrs. Fournier, Mr. Moore, Ms. Dodds), the notice of layoff stipulated that they would be notified if an assignment opportunity arose. The notice further stated that if no assignment opportunity arose, the grievors would be advised if they were able to exercise displacement rights. None of these grievors were offered an assignment opportunity or were able to exercise displacement rights.
By letter from RRC dated May 1, 2009, Mrs. Fournier, Mr. Moore and Ms. Dodds were advised that no displacement opportunities were available, and that their notice period would run until July 29, 2009.
On March 30, 2009, Kevin Sawicki, Acting Director of Union-Management Relations for the Ministry of Government Services, issued a memo on the Extension of Surplus Factor 80 under the 2009-2012 Central Collective Agreement.
After ratification of the 2009-2012 Central Collective Agreement on February 26, 2009, the Surplus Factor 80 program was made available retrospectively to those employees who had received surplus notice on or before December 31, 2008. Approximately 28 employees were affected, and those employees were contacted by letter and given the option of accessing Surplus Factor 80.
With respect to this retrospective application of Surplus Factor 80, employees who had originally opted for the lump-sum Pay-in-Lieu option were deemed to have resigned from the Ontario Public Service, and were not given an opportunity to change their decision. Those employees who opted for the Pay-in-Lieu, Salary Continuance option were deemed to be active employees on the payroll, and were given the option to access Surplus Factor 80.
None of the approximately 28 employees who were affected at this juncture required an additional leave of absence to reach their Surplus Factor 80 dates.
After ratification of the 2009-2012 Central Collective Agreement, the RRC human resources department distributed two memoranda to surplussed employees. The first was entitled “Surplus Factor 80: Employees who received Notice of Lay Off on or before February 25, 2009” [the “Surplus Factor 80 Memorandum”]. The second was entitled “Factor 80 Retirement Under the Pension Bridging Option” [the “Bridging Memorandum”].
For example, Diane Jackson was one of the employees found to be eligible for Surplus Factor 80. She received notice of surplus in November 2008 and had a Surplus Factor 80 date of May 2010. After ratification of the 2009-2012 collective agreement, she was notified by letter and phone call from the RRC human resources department of a meeting with respect to her options on being surplussed. She was also provided with a copy of the Surplus Factor 80 Memorandum. At the meeting she was advised that she was eligible to participate in the Surplus Factor 80 program which had been extended under the new Collective Agreement. It was further stated that she could opt between termination payments or being “bridged” to an unreduced pension under Surplus Factor 80, in which case she would be “gone but not off the books”. Ms. Jackson opted for the latter.
After ratification of the 2009-2012 Central Collective Agreement, the grievors were not given an opportunity to reconsider options or to access Surplus Factor 80 by means of seeking an additional unpaid leave of absence.
The grievors would have elected to pursue eligibility for Surplus Factor 80, through an additional unpaid leave of absence, had this been given to them as an option at any point or had they otherwise been aware that this could be done.
RRC maintained a list of the employees who were granted leaves of absence without pay during the relevant times, the dates of the leaves, and the reason for the leaves.

6The particulars for the grievors from HRC included the following:

General Background

The grievances allege violations of the following provisions of the 2009-2012 Central Collective Agreement: Article 20.1.2.1 (consideration of options); Article 20.10.1 (Voluntary Leaves); Article 24 (Leave Without Pay); Article 80.1 (Term of Agreement); Appendix 9 (Employment Stability); Appendix 17 (Factor 80 Program).
Prior to their layoffs, which occurred as set out below, the grievors were employees of the Huronia Regional Centre (HRC). The Centre, operated by the Ministry of Community and Social Services, provided residential care for persons with developmental and physical disabilities. At the time of their layoffs, the grievors were classified as Residential Counselors, and were members of OPSEU Local 323.
In September 2004 the provincial government announced that HRC would be closed by March 31, 2009. The final stages of the closure began to be implemented in or about September 2008.
The grievors were members of the OPSEU Pension Plan.
Neither grievor signed up for Variable Surplus Dates.
The grievors received a notice of surplus dated October 16, 2008, in accordance with Article 20B.1.2.1 of the Collective Agreement, together with an explanation of available exit options.
The grievors were given three options: Option #1 – Pay-in-Lieu; Option #2 – Pay-in-Lieu, Salary Continuance; Option #3 – Remain Available for Assignment. The grievors were required to select an option not later than October 31, 2008. Both grievors elected Option #3, Remain Available for Assignment.
At the time the surplus notices were issued, the grievors would not have qualified for Surplus Factor 80 in the normal course, including with the bridging option, even assuming the programs would ultimately be made available again under the new Collective Agreement then being negotiated. In any event, the grievors were not given the option in their surplus notices of participating in Surplus Factor 80.
At the time the surplus notices were issued, the grievors were not advised that they may be eligible for Surplus Factor 80, with the bridging option (assuming these programs would be made available again under the new Collective Agreement), if they obtained a service extension in the form of an additional unpaid leave of absence.
At the time the surplus notices were issued, the grievors were not aware that a leave of absence could be sought in an effort to achieve eligibility for Surplus Factor 80. The grievors did not apply for a leave of absence.
The grievors received a notice of layoff dated October 31, 2008 in accordance with Article 20B.2.1 of the Collective Agreement. The notice stipulated that they would be notified if an assignment opportunity arose. The notice further stated that if no assignment opportunity arose, the grievors would be advised if they were able to exercise displacement rights. The grievors were not offered an assignment opportunity and were not able to exercise displacement rights.
By letter from HRC dated January 30, 2009, the grievors were advised that no displacement opportunities were available, and that their notice period would run until April 30, 2009.
After ratification of the 2009-2012 Central Collective Agreement on February 26, 2009, the grievors were not given an opportunity to reconsider options or to access Surplus Factor 80 by means of seeking an additional unpaid leave of absence.
The grievors would have elected to pursue eligibility for Surplus Factor 80, through an additional unpaid leave of absence, had this been given to them as an option at any point or had they otherwise been aware that this could be done.

7Relevant provisions of the Collective Agreement are:

Article 20 – Employment Stability

20.1.1 Where a lay-off may occur for any reason, the identification of a surplus employee in an administrative district or unit, institution or other such work area 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. The purpose of this ten day period is for the employee to consider his or her options, as applicable, under Article 20.2 (Pay in Lieu).

20.1.2.2 On or before the end of the ten day period described in Article 21.1.2.1 above, the employee shall advise the Employer, in writing, 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.

20.10.1 In the spirit of co-operative attempts to create training and employment opportunities, the parties agree to the following full time unpaid leaves which will be advertised widely to employees and granted subject to local operating requirement:

(a) Extended Educational Leave: The Employer agrees to provide extended education leave, without accumulation of credits, for period of a minimum of one (1) school year;

(b) Family Leave: an employee at his or her option shall be entitled to a leave of absence without accumulation of credits, of up to one (1) year for care of a dependent person.

Article 24 – Leave of Absence

24.01 An employee may request a leave of absence without pay and without accumulation of credits. A Deputy Minister shall not unreasonably deny such requests.

Article 80 – Term of Agreement

80.01 This Agreement covers the period from January 1, 2009, until December 31, 2012. The effective date of any changes to the term of the Central Collective Agreement from the previous Central Collective Agreement, unless otherwise indicated, shall be February 26, 2009. This Central Collective Agreement shall continue automatically thereafter for annual periods of one (1) year each unless either party serves notice on the other in writing that it wishes to bargain for a new Central Collective Agreement in accordance with the Labour Relations Act, 1995, and the Crown Employees Collective Bargaining Act, 1993.

Appendix 17

It is agreed that the Factor 80 Program will be extended to December 31, 2012 for eligible employees. To be eligible the employee must have been laid off before December 31, 2012:

Because he or she had not been assigned to a permanent position within his or her six month period subject to and in accordance with Article 20.3 (Redeployment) or because he or she had accepted and was assigned into a temporary vacancy in accordance with Article 20.8 (Temporary Vacancies), but had not obtained an assignment to a permanent vacancy within his or her notice period;

AND

Because, failing Redeployment to a permanent assignment, he or she has exhausted all of his or her displacement rights pursuant to Article 20.4 (Displacement);

AND

If applicable, because failing Redeployment and Displacement, he or she had accepted an available conditional assignment, but the Employer determined that the employee did not meet the qualifications for the position after retraining during the notice period pursuant to Article 20.12 (Conditional Assignments).

The Plan sponsors agree to take steps to amend the OPSEU Pension Plan in an expeditious manner to provide for the extension of the Factor 80 window for those employees as described herein. This arrangement meets the requirements of the OPSEU Pension Plan, including compliance with legislation governing the OPSEU Pension Plan. This arrangement is contingent on Revenue Canada approval.

The Employer confirms that any costs arising out of the extension of the Surplus Factor 80 Program to the employees covered by this collective agreement shall be exclusively borne by the Employer. No costs shall accrue to the members’ share of the fund as a result of the extension of the Surplus Factor 80 program to December 31, 2012.

EVIDENCE – RRC

8The Union’s first witness was Alice Kazan who had worked at RCC. She testified that in late 2008 she was unsure as to whether Surplus Factor 80 would be re-negotiated into the new Collective Agreement and so she had “faint hope” that she would be eligible for an unreduced pension. She had obtained a part time job at a local Hospital while she continued to work full time at RCC. She was fatigued as the result of holding two jobs but her spouse, who also worked at RCC, urged her to stay at RCC until the issue of Surplus Factor 80 was settled. When she learned that the parties had concluded the new Collective Agreement and that Surplus Factor 80 was to be continued she realized that she was still six months short of her Surplus Factor 80 date. She worried that she would not be eligible. Given her tiredness she decided to ask for a leave of absence in January of 2009 until the closure date which was thought to be in March of 2009. That was her plan until her spouse told her that he had spoken to Ruth Shirley from the human resources department and she informed him that leaves were being granted beyond the closure date. After that conversation she decided to investigate that possibility of obtaining a Leave of Absence and spoke with her manager, Mary-Lou Green about the matter the following day. In her casual conversation with Ms. Green she was led to believe the request would be granted and it was the following day. A few days later Ms. Connie Coville, Unit Director, contacted her and asked her if she wanted to be surplussed or remain on her leave of absence. At no time during her discussions with Ms. Green and Ms. Coville was the purpose of the leave discussed. She received approval for a six-month leave of absence which bridged her to the point where she became eligible for accessing Surplus Factor 80. She received her surplus notice at the end of her leave of absence and began to receive an unreduced pension in July of 2012. In cross-examination Ms. Kazan confirmed that she indicated on her leave of absence request that the purpose of the leave was for “future employment”.

9Ms. Elona Morley worked at RCC. In February of 2008 she thought that there was a possibility that she might be able to access Surplus Factor 80 but she was worried that she might fall six months short. Around that time she had a conversation with Ms. Murphy-Healy, her supervisor, about her situation. She asked about taking a leave of absence and whether it could extend beyond the closure date. She was told no. She later had a similar conversation with Ms. Coville who also told her that such leaves were not being granted. Ms. Morley also recalled an earlier conversation that she had in the fall of 2008 with Doug Noble, consultant in HR who had indicated that she was six months short and that there was nothing that he could so for her. As a result of those discussions she never applied for a leave of absence. She testified that had she known that a leave of absence would have been available to her she would have applied. She got her surplus notice on January 15, 2009. After the new Collective Agreement was ratified she was not given an opportunity by the Employer to revisit any options regarding surplus. In cross-examination Ms. Morley said that she did not recall revealing that she wanted a leave to seek future employment in any of the three conversations she had with her supervisors because the discussion did get into that level of detail.

10Coreen Broadbent worked at RRC as a Registered Nurse. In mid February of 2009 she spoke with her supervisor about whether she would qualify for bridging to Surplus Factor 80. She also met with Mr. Noble during this time and he told her that if she took an LOA until August she would be able to bridge to her pension. She testified that he told her the leave might not be approved but she submitted the request indicating that she wanted it to seek other employment. She then applied for a position at the local hospital. Her request was granted and when she received her surplus notice in March of 2009 she elected to stay on her leave of absence until August. She had earlier signed to be on the variable surplus list but as the result of advice from a person in Human Resources she wrote and asked for her name to be removed. It was agreed that she could be removed from that list in a Memorandum of Agreement signed by the Employer, Union and Ms. Broadbent. She received her first unreduced pension check at the end of June, 2012.

11Mr. Brian Moore worked at RRC and in the fall of 2008 he thought that he would not be able to get to a point where he would be bridged to Surplus Factor 80. He had three conversations with Ms. Linda Code from HR about Surplus Factor 80. In their first chat she told him that he would qualify for Factor 80 but she later told him that she was wrong and that he was thirty days short of qualifying. He asked her if it was possible to buy back his parental leave and was told no. He then said to her that he had a job he could go to and so perhaps he could obtain a leave of absence. He again was told that this option was not possible. During their third conversation she told him that the dates were reviewed and now it was determined that he was five months short. Mr. Moore testified that he also had conversations with two different supervisors at the Hospital who told him that no leaves were being approved at that time. He felt it made no sense to push this matter further given these responses. He did not recall specifically telling them that he needed a leave of absence to be eligible to bridge to Surplus Factor 80. In a discussion around the end of 2008 Mr. Moore had a discussion with Mr. Noble who told him that no leaves of absence were being granted because the new Collective Agreement had not yet been agreed upon. Mr. Noble told him that he would not get to Surplus Factor 80 because he was “short and that was all there was to it”. Mr. Moore testified that he told Mr. Noble there was a job that he could have taken with a construction company. He knew that they were hiring and needed another driver. He was not invited to revisit his surplussing options after the new Collective Agreement was ratified in February of 2009. He never actually applied for a leave because of the information he received.

12Mary Donovan worked at RRC. She testified that the surplus process was of no import to her because she knew that she was not eligible for Surplus Factor 80 and had no expectations of retiring with an unreduced pension. However, as the result of various discussions amongst her peers regarding the Collective Agreement negotiations she made an appointment to meet with Ms. Fay Code, head of Human Resources in November of 2008. She, along with Lori Egan who also attended this meeting, asked if they would reach eligibility for Surplus Factor 80 and were told they would not. They also discussed the Variable Surplus List which she ultimately determined was the option she should choose to ensure that she would receive an enhanced surplus. She testified that she chose to put herself on this list because she did not want to have “nothing” after having worked for twenty seven years in the same position. Ms. Donovan met again with Ms. Fay Code in late January of 2009 because she had heard that some of her coworkers, including Alison Kazan, were receiving leaves of absence to enable them to access Surplus Factor 80. She asked if a leave of absence would be available to her and was told it would not. She had told Ms. Code that she would need a ten-month leave to get to Factor 80. Ms. Code also said that Ms. Donovan could not obtain a leave because she had put her name on the Variable Surplus list and she was already in receipt of her surplus notice. Notwithstanding this conversation Ms. Donovan requested a ten-month leave of absence in order to obtain other work experience and to reach Surplus Factor 80. Her request was denied shortly thereafter. Ms. Donovan stated that she would not have put her name on the Variable Surplus List had she known that it would impede a leave of absence request. She was not given an opportunity to alter her election after the new Collective Agreement was ratified in February of 2009. In cross-examination Ms. Donovan conceded that in her original particulars set out by the Union she failed to mention that she had indicated in her leave request that the purpose was, in part, for other work experience. She also agreed that the enhanced severance package amounted to twenty seven thousand dollars. Finally, she said that she did not speak with any Union representative at the time because she was told that she would not access Surplus Factor 80.

13Ms. Sandy Fournier was a Residential Counselor at RRC. She had been hoping to be eligible for bridging to Surplus Factor 80 needing to get to March 16, 2009. In mid January 2009 she met with Ms. Coville who told her that she “fit within the time frame of reaching Factor 80.” She questioned this because her own calculations told her otherwise but she eventually decided that her own numbers must have been wrong. She received her notice of surplus on January 15, 2009. The following day she made an appointment to meet with Mr. Doug Noble to make sure that the information she received from Ms. Coville was accurate. He told her that she was forty-five days short. She was upset by this and Mr. Noble told her that he was sorry. He did not offer a leave of absence as an option. She would have made such a request had she known it was available to her. After the new Collective Agreement was ratified the Employer did not revisit options with her. In cross-examination she said that she did not speak with a Union representative until after she received her surplus notice. She also said that she would have asked for the leave in order to reach her bridging date. She had already acquired a casual position at a local nursing home.

14Ms. Lori Egan worked at RRC. In late 2008 she knew that the Centre was closing but because the new Collective Agreement had not yet been ratified it was unknown to her if Surplus Factor 80 would be available. She knew that she did not have enough service to access Surplus Factor 80 even if it was available. In November or December of 2008 she met, along with Ms. Donovan, with Ms. Faye Code. She wanted to explore if there was any chance of getting to her Surplus Factor 80 date but was told no because it was not known if Surplus Factor 80 would continue and because she had insufficient service. Other options were discussed and it was her recall that she was told it was her best option to put herself on the Variable Surplus Date List in order to get “double severance.” This is what she did. After she had received her notice of surplus in late 2009 she had a telephone conversation with Ms. Code again because she had heard about the leave of absence granted to Ms. Kazan. She was asked in her evidence if she would have taken a leave if possible and she said yes. It was said that perhaps her notice could be rescinded and she could go on a leave. Ms. Code told her that she did not know why others were not informed about leaves of absence. However, Ms. Egan did not apply for a leave of absence because she assumed the facility was closing at the end of March and she would not be able to apply for a leave that would extend beyond the closing date. She would have applied had she known it was an available option. She was not given an opportunity to revisit her options once the new Collective Agreement was ratified. She would have needed a seven-month leave of absence as her Surplus Factor 80 date was August 27, 2012. In cross-examination it became apparent that the severance monies owing to Ms. Egan, approximately fifty thousand dollars has been withheld by agreement of the parties pending the outcome of this arbitration. She said that if she requested a leave she would have done so “in order to get to my bridge.”

15Nancy Dodds worked as Residential Counselor 2 at RRC. She did not expect to retire with an unreduced pension because she had insufficient service. In late 2009 she had heard about Ms. Kazan and so she met with the administrator to inquire if she could obtain a leave of absence for six months to reach Surplus Factor 80. She was told this not possible because the Employer needed knowledgeable counselors to arrange placements for the residents in group homes. She did not apply for a leave as a result of this conversation and was thirty-two days short of eligibility for getting to Surplus Factor 80. At one point Ms. Faye Code told her that she had sufficient service but it was not correct and at the point this error became clear it was too late. She was not given an opportunity to revisit options once the new Collective Agreement was ratified. In cross-examination she said that had she applied she would have said it was for the purpose of reaching her Surplus Factor 80.

16The Union subpoenaed Ms. Faye Code to attend and give evidence. She worked at RRC ultimately retiring from the position of Director of Human Resources. She had a staff of seven people including Doug Noble and Linda Code. She testified that line managers had the authority to grant leaves of absence up to one month and that a three month leave had to receive approval from a more senior manager. A leave of absence from three to six months duration needed the signature of the administrator. Ms. Code’s authority was restricted to granting leaves of absence for up to three months for her own staff.

17According to Ms. Code, surplussing of staff began in 2007. All bargaining unit staff but ten who were involved in the decommissioning were surplussed by March 31, 2009. The role of HR was to provide information to staff and this was done through surplus entitlement sessions and pension sessions. Additionally, a newsletter was circulated and individual meetings were held.

18Ms. Code explained that surplus notices were issued taking into account operational needs at any particular time such as the placement of residents. She held meetings from time to time with the Project Manager and the Director of Residential Services in order to determine how many employees were to be surplussed given operational needs and numbers of available remaining employees. The people to be surplussed were determined after reviewing the Variable Surplus List. The least senior people on this list would be the first to be surplussed. If any employee who was identified to be surplussed was on a leave of absence they were sent a letter asking if they wanted to continue their leave or accept notice of surplus immediately. The number of employees on leaves of absence at the time was always taken into account in these meetings because others would be utilized to fill those vacant positions.

19Ms. Code explained that no employees were surplussed in December of 2008 because the government did not want to surplus employees during the holiday season. Accordingly, there were a large number of employees surplussed in January of 2009. All of the notices of surplus included two, three or four options depending on the employee’s personal circumstances. When meeting with individual employees these options were discussed including strategies to get to Surplus Factor 80 when that was possible. Sometimes employees were told that if they took a leave of absence prior to receiving surplus notice they might be able to extend their working period to get within a date to access Surplus Factor 80. This was put forward as an option to consider taking into account that it was an expensive matter because the leave was without pay and it was incumbent upon the employee to pay both their own and the Employer portion of pension contributions and other benefits. She testified that discussions about rationale for leaves focused on other opportunities such as alternate employment or further education. Accessing surplus factor 80 was not openly discussed as she wanted to make sure that leaves requested would be approved even if the actual underlying reason was to get the employee to Surplus Factor 80. As far as Ms. Code knew, others in HR followed this practice and certainly she continued in this fashion for the entire period of the 2005 to 2008 Collective Agreement.

20During the period from 2007 to 2009 only one request for leave of absence was denied according to Ms. Code. Ms. Donovan asked for an extension to go beyond March of 2009 after receiving advance notice but was refused because at that point the facility was going to be closed.

21According to Ms. Code the purpose of the Variable Surplus Date List was to allow more senior staff the opportunity to exit the OPS sooner than they would otherwise be surplussed, given their seniority if they so chose. It allowed more senior staff to access retirement sooner or simply leave sooner rather than later. It is distinguishable from the Voluntary Exit Option because the employee did not have to be in a position to obtain a pension. The advantage for those who were eligible for Surplus Factor 80 to put their names on the list was to get an opportunity to leave sooner.

22Ms. Code testified that in the early afternoon of December 24, 2008 a bargaining unit member told her that Surplus Factor 80 would be extended into the next Collective Agreement. After the Collective Agreement was ratified there were about twenty-eight employees who had received their surplus notice before December 31, 2008 who had the potential to reach Surplus Factor 80. Letters were sent to those employees at RRC asking if they were interested in re-opening their options. If so they got a second letter setting out new options including the option of Surplus Factor 80. Those employees were allowed to change their original election so long as they had not originally elected to take pay in lieu because they were no longer employees. Those still on the payroll were allowed to change. None of those twenty-eight employees needed a leave of absence in order to be eligible for bridging to Surplus Factor 80. Employees who needed a leave of absence to be eligible for bridging to Surplus Factor 80 were not given this opportunity.

23Ms. Code was shown a memorandum from the Director of Union-Management Relations to various Directors dated March 30, 2009 which stated, in part:

As the Surplus Factor 80 program was set to expire on December 31, 2009, it is possible that people who were surplussed and would otherwise have been able to access their Surplus Factor 80 were not given that option.

In order to initiate the process of contacting eligible employees, I ask that you send names and surplus notice dates of any employees who were surplussed and could potentially have bridged to a Surplus Factor 80 date to my office……

She testified that she had not seen this memorandum prior to our hearing date.

24Ms. Code was also asked to review other informational documents that were handed out to employees during the surplussing process. Most were developed by the Corporate HR department and made available to employees when attending in the HR department or in the informational sessions.

25Ms. Code was asked about various conversations she had with Ms. Donovan and Ms. Egan. She could not recall the details of those discussions.

26Ms. Code also testified that she had all of the RRC grievors sign a Memorandum of Agreement that specified that the Employer pending the outcome of these proceedings would withhold all outstanding termination payments.

27In cross-examination Ms. Code testified that the local Union president was involved in the surplussing exercise. All employees were told in 2004 that the facilities would be closing but the actual surplussing of employees would not occur until 2007. While she did not meet with employees as much as others in the HR department, she attended informational sessions. Employees were able to attend at the career centre or speak with HR representatives whenever needed. There were plenty of resources available to employees and the Union.

28Ms. Code said in cross-examination that employees were informed of their options including leaves of absence if there was a possibility of getting them to a point where they could access Surplus Factor 80. In those discussions employees were “guided” as to reasons to articulate in the event they requested leaves of absence such as looking for work.

29In an effort to expedite these proceedings, the parties agreed that the Employer’s witnesses would give their evidence in chief by way of will-say statements. Ms. Marion Steele was the Employer’s first witness who attended by way of teleconference. She worked at RRC for thirty years ending in April of 2009. She was most recently Manager of the Facility Charge Office at RRC.

30Ms. Steele denied that she would have told Mr. Moore that no leave of absence requests would be granted. She had not been aware of the process of applying for leaves or how they came to be granted. In cross-examination she testified that as a non-union employee she went to speak with HR “on a regular basis” to try to get direction about her own situation in view of the closure. She was hoping to access the bridging to Surplus Factor 80 but was unable to do so. She had later hoped to be eligible by buying back some time she had been absent on a leave. This was not allowed and so she was twenty-six days short of eligibility for Surplus Factor 80. She is presently working as a Registered Practical Nurse in a local hospital. She opined that if she had remained in the bargaining unit she would most likely be retired. Despite various attempts to refresh her recall, Ms. Steele was adamant that she had no memory of any conversation with Mr. Moore regarding leaves of absence.

31Doug Noble worked at RRC from March of 2005 until March of 2009. In the last two years of his employment he worked as a HR Consultant. In his will-say statement he had no “specific recollection” of any discussions with Ms. Broadbent, Mr. Moore or Ms. Morely. He spoke with over 300 employees and therefore he does not recall specific conversations. He also noted that he avoided generalizations and provided specific information relating to each employee’s own options and entitlements. He was aware that leaves of absence were not being given for the purpose of accessing Surplus Factor 80 or following receipt of a Surplus Notice. Otherwise, he recalled that employees might have had the opportunity of a leave of absence. In cross-examination Mr. Noble agreed that this time was exceptionally busy because of the large number of employees needing assistance. In early 2008 the majority of his time was spent advising individuals who had received or were about to receive Surplus notices. He was asked about his role in making known to people the ability to request leaves of absence and he said that in appropriate circumstances he would discuss leaves of absence and would advise that they might be granted for appropriate reasons and access to Surplus Factor 80 was not an appropriate reason. Mr. Noble was careful in his evidence to say that he did not advise people to requests leaves for reasons that were “bogus”.

32The Employer called Bob Sample. He operates a landscaping and equipment installation business in Perth as a witness. In his will-say he refuted that he had any employment opportunities in the winter of 2009 or that he had any conversations with Mr. Moore about potentially hiring him. In cross-examination Mr. Sample’s recall could not be jogged in cross-examination. He knew that he had spoken to Mr. Moore during the period but he disagreed that it was about a potential employment opportunity. Indeed, the only person Mr. Sample has hired since 1990 is his own son.

33Ms. Marian Walker worked at RRC for almost 35 years. She became a Residential Manager in 2009. In her will-say statement she specifically denied any recall of any conversation with Mr. Moore wherein she advised that leaves of absence were not being granted. She said she would not have said such a thing because she had no knowledge of the granting of leaves. In cross examination she conceded that she was involved in many conversations with other staff about the facility closing, but she did not recall saying that leaves were not be granted because she did not have that knowledge.

34Linda Code worked at RRC for over 30 years. In 2008 and 2009 she worked as an HR Consultant. In her will say statement she had no specific recall of conversations referred to by Mr. Moore in his evidence wherein she stated that leaves of absence were not available. She noted that it was possible she assisted him during this time calculating his service but because she was not an experienced human resource practitioner she avoided answering questions about leaves of absence. When questions about leaves arose she referred the employees to more experienced and knowledgeable HR staff. In cross-examination Ms. Code said that she could not recall any instance when she advised on leaves of absence. The majority of her work involved employee portfolios and surplus packages.

35Ms. Connie Coville worked at RCC for over thirty years. In the last three years of her employment she was Acting Unit Director. In her will-say statement Ms. Coville stated that she had no specific recall of any discussion that she may have had with Ms. Kaczan, Ms. Fournier or Ms. Murphy. She said that during this time she spoke with over a hundred different people. She considered it unlikely that she would have told anyone that leaves were not being granted because in those instances when people asked for a leave she referred them to HR. She had no authority to grant leaves and so she would not have “taken a position on whether leaves could or could not be granted.” In cross examination Ms. Coville she testified that her role was to get the surplus list of notes and give those employees their notice but further discussion was to be held with HR. She again stated that she had no recall of specific discussions but said that if she spoke with Ms. Kaczan it might have been passing on to her that she had approval to stay on leave.

36Ms. Murphy-Healy worked at RRC for approximately 29 years as a Residential Supervisor. She refuted that she had a conversation with Ms. Morley in February of 2008 because she had left RRC and begun work with the Regional Office on January 7, 2008. She recalled that during her time at RRC she had conversations with people but if they had questions or concerns she advised them to seek assistance from HR. While she had authority to grant sick leave and vacation she did not have authority the grant extended leaves of absence. In cross-examination she again conceded that there were many discussions about what was happening in the facility but still did not recall any discussions irrespective of time frame held with Ms. Morley about leaves of absence.

37Ms. Noreen Barnett was the Director of RRC in 2008 and 2009. In her will stay statement Ms. Barnett stated that she did not recall any conversation with Nancy Dodds regarding a blanket denial for requested leaves of absence. Indeed, she thought it unlikely that she would have said such a thing because she was aware that some leave requests were being granted for other employment or further education. In cross-examination Ms. Barnett said that her only involvement with Ms. Kaczan’s request for leave of absence would have been to append her recommendation so that it could be sent on to the administrator. She said that at the time no one was turned down who had made such a request. Personally she saw nothing wrong with such requests when one of the benefits was to get the person to Surplus Factor 80. She conceded that the knowledge that leaves of absence could be utilized for this purpose came “fairly late in the day”. She testified that it was her position that if Ms. Kaczan was told to use this option then all others similarly affected should have been told. Speaking frankly Ms. Barnett said that she now regrets not searching out other employees and so advising them.

EVIDENCE – HRC

38Ellen Beaton was employed as a Residential Counselor 2 at HRC. She knew that in order to be eligible for Surplus Factor 80 she could not be surplussed before March 25^th 2009. Her Union Representative suggested to her that she apply for a leave of absence and so she met with Ms. Anne Marie Carruthers, her supervisor, and explained that she wanted like a leave of absence. She was told that she could not be given a leave of absence that went beyond the March 31^st closing date. As a result of this conversation she did not apply for a leave of absence at that time. She later spoke with her Union Representative who suggested that Ms. Carruthers “didn’t get the call yet”, explaining that it had been decided that such leaves could be granted. Ms. Beaton filled out an LOA form indicating that the leave would be for exploring employment opportunities. However, she did not submit the form because she learned that she would remain at the Centre until closure that meant that she was able to bridge to her Surplus Factor 80 by a margin of five days.

39Mr. Dave Nichols worked at HRC and in October of 2008 he spoke to Ms. Kathy Johnson, the head of Human Resources at the time, about his options regarding surplus. He knew that he needed to get to July 5^th, 2009 in order to be bridged to Surplus Factor 80. He told her that he would like to still be on the payroll as of that date and wanted to know what his options were. He was told that there were three options open to him. He was told not to be concerned with bridging at that point because the Surplus Factor 80 might not be renewed in the new Collective Agreement. He said he wanted to position himself in the event it was. When he received his notice of surplus he elected to bump into an opening but in a note dated October 16, 2008 he indicated that he wanted to keep his options open to get to Surplus Factor 80. His last day of work was to be April 30, 2009. In early 2009 he again spoke to Ms. Johnson because he had heard that a co-worker, Ms. Patterson, had obtained a leave of absence. He had a meeting with her later in April of 2009 and was told that it was not possible for him to be given a leave of absence because he had registered for the Variable Surplus Date program. As a result of this conversation he did not apply for a leave of absence. He testified that he was never asked if he wanted to revisit his election after the new Collective Agreement was ratified. He was sixty-five days short of being able to bridge to his Surplus Factor 80 date. In cross-examination he agreed that in his first discussion with Ms. Johnson he did not ask her about leaves of absence. Rather, he asked her what he should do. He later spoke to his Union Representative who said that he made the right decision, that Ms. Johnson knew what was best for him. It was not until later when he received a phone call telling him of Ms. Patterson that he learned that others were being given opportunities that were not made available to him. He said that if he had been given the opportunity to apply for a leave of absence he would have indicated that it was for the purpose of getting to his Surplus Factor 80.

40Rene Dufour worked at HRC. In October of 2008 she spoke with Ms. Kathy Johnson from Human Resources about her options upon receiving her notice of surplus. She asked if there was anything she could do to reach Surplus Factor 80 and was told that she was nothing available to her. She chose to remain available in case there was work at another facility that would allow her to work the needed time to get to Factor 80. She had also spoken to her Union Representative and because it was unknown if Surplus Factor 80 would continue in the new Collective Agreement, she signed a document, dated October 16, 2008, that stated:

I am exercising this option under duress. It is my position that I am entitled to elect under the Factor 80 Option which is not being offered to me. So as to not adversely affect my choice any further, I am electing, as above, but I formerly (sic) reserve my right to withdraw this election one my right to elect, under Factor 80, is confirmed.

She gave this document to Ms. Johnson and asked that it be put in her file. Before she was laid off on April 31, 2009 she again spoke to Ms. Johnson because she had heard that a coworker was given an option to take a leave of absence in order to access Surplus Factor 80. She told Ms. Johnson that she wanted the same opportunity but was told that it was too late and for this reason she did not formally request a leave in writing. She was not given new options or an opportunity to revisit her election after the ratification of the new Collective Agreement nor was she told that she needed a leave of approximately nine months in order to access Surplus Factor 80. In cross-examination Ms. Dufour said that if she had requested a leave of absence she would have been instructed to say that it was for the purposes of looking for another job.

41Sonja Patterson worked as a Residential Counselor 2 at HRC. She stated that she did not think that she would be able to retire with an unreduced pension because she knew that she fell short of eligibility for bridging. On February 2, 2009 Ms. Kathy Johnson called her into her office and Ms. Patterson expected to be given her notice of surplus. Instead, Ms. Johnson told her that she had the option of taking a leave of absence for six months that would “take me to the bridge.” She was also told that she could put her pension monies into a retirement fund and accept a surplus notice. She testified that she was given only to the end of that day to make her election and so as guided by Ms. Johnson, she filled out an application for a six-month leave of absence to “explore other employment opportunities.” In the course of her evidence Ms. Patterson was shown a letter from the Manager of Residential, Health and Clinical Operations at HRC written in support of her leave request noting that she had been a long term employee who needed the leave to “seek job opportunities throughout the community.” She had not seen this letter prior to disclosure for these proceedings. Her last day at HRC was February 6, 2009, leaving without severance. On March 16, 2009 she received a letter stating that she was to be surplussed as of that day but she could either stay on her leave of absence or “have the option of returning early from your leave of absence and receiving your notice of surplus prior to the end of you leave of absence.” She did not return from leave prior to the end of her leave and got notice of surplus and the end of August. She is presently receiving an unreduced pension.

42Ms. Susan Waring was the Administrator of HRC until its closure. There were approximately 800 employees and an “on call” list of a further hundred working with residents. After Huronia’s closure she went to oversee the closure of RRC. She testified that the process for requesting leaves of absence was the same of both facilities. First the employee should have spoken to their manager and then HR was to have assisted in the processing of the request. It was outside her delegated authority to approve a leave in excess of six months. She testified that she would not have approved any leave of absence request if it were requested after the employee had received their notice of surplus in accordance with a memorandum of agreement between the parties. This agreement was intended to provide transitional support and included provisions regarding relocation, surplus notice and direct assignments. According to that agreement, at para D.1 and D.2 it said:

Where a facility employee is on a temporary assignment within or outside of the Ontario Public Service, the parties agree that notice of surplus will not be issued until the end of the temporary assignment. Where operationally necessary, the Employer reserves the right to end the temporary assignment with appropriate notice and return the employee to his/her home position and issue surplus notice to the employee.

For greater clarity, a temporary assignment includes leaves of absences for work outside of the OPS and authorized by the Ministry.

43Ms. Waring said that a standard form was used for leave of absence requests which contained a series of questions and boxes to check. The reason for the leave request was to be included. The Memorandum recognized that many employees would want to seek other employment opportunities.

44Ms. Waring testified that no requests were granted where the stated reason for the leave was to access Surplus Factor 80. The stated reasons were not investigated but taken at face value. Additionally, no leaves were approved to those who had already received their notice of surplus. Many leaves were requested and granted.

45According to Ms. Waring, the Union and the Employer worked closely together during this period. There was a career centre at each facility and job fairs were held. Other employee assistance included financial planning, pension information, educational opportunities and assistance with resume writing. In cross-examination Ms. Waring said that the pension people were brought in to clear up confusion. Many staff had some period of part time employment or had been on a contract and so their pensionable time was not clear.

46Ms. Waring testified that the HR people formulated their own recommendation regarding leave of absence requests and to her recall, no request was denied.

47Ms. Kathy Johnson provided a will say statement on behalf of the Employer but was too ill to give viva voce evidence in these proceedings. The Union agreed that her declaration be admitted into evidence but reserved the right to argue what weight, if any, that evidence should be given. Ms. Johnson stated:

I worked at the HRC from 1977 until June 2011.
From June 2008 I worked as an Acting Human Resources Consultant.
I understand that there is currently a grievance before the GSB regarding surplussing issues and the closure of the facility.
I am told that, during the GSB hearing, Dave Nichols testified that in October of 2008 I told him that his best option was to take “option 3” and relocate to another facility and to “remain available for assignment.” I am told that Mr. Nichols testified that I told him that he should not be concerned with “bridging” to Factor 80 because that option may not be renewed in the next collective agreement. Finally, I am told that Mr. Nichols testified that in April of 2009 I told him that he could not get a leave of absence because he had already selected “option 3” and that, as a result, he did not apply for a leave on account of being led by myself to believe that he was too late.
I am further told that during the GSB hearing, Rene Dufour testified that, in October of 2008 I told her that there was nothing she can do to reach Surplus Factor 80 and that going on sick leave was not an option. I understand that Ms. Dufour testified that, when she found out that Sonia Patterson had been granted a leave of absence, she called me in March or April of 2009 to inquire about a leave but I told her “it was too late.”
I am further told that during the GSB hearing, Sonia Patterson testified that I met with her on February 6, 2009 and told her about the option of taking a six-month leave of absence and that she should write “other employment” as the reason. She testified that I gave her until the end of the day to decide whether she wanted to take the leave.
I do not have any specific recollection of any of these alleged meetings or conversations. Around this time, I had meetings and conversations with hundreds of employees regarding their employment options. I specifically recall telling any employee who requested information regarding a leave of absence that every request would be considered but that their individual circumstances would be part of management’s consideration.
I consider it to be extremely unlikely that I would have said to Ms. Dufour that there was nothing she could do to reach Surplus Factor 80, given that I would not have known that to be the case and given that every employee had unique circumstances. I may have told her that going on sick leave was not an option if she was not actually sick, but I do not recall any such conversation.
I also consider it unlikely that I would have given Ms. Patterson the option of a leave along with a same day deadline considering that it was not in my power to grant leaves. I do not recall approaching any employee in order to offer them a leave.
With respect to Mr. Nichols’ allegation, it is my understanding that once an employee elected to remain available for assignment, that election could not be changed.

REPLY EVIDENCE

48The Union recalled Ms. Morley in reply. She stated that she may have been mistaken in her earlier evidence regarding the date that she spoke with Ms. Murphy-Healy.

49Mr. Moore also provided reply evidence. He re-stated his discussions with Ms. Walker and Ms. Steele were casual and that he did not ask either for a leave.

50During the course of the hearing the parties agreed that all of the grievors who worked at RRC did not receive their termination payments as set out in the evidence of Ms. Code. However none of the HRC grievors had such an arrangement and have received their monies. Further, the Union conceded that the Employer used its best efforts in attempting to reach Karen Ruest but was unsuccessful.

UNION SUBMISSIONS

51Mr. Bohuslawsky, for the Union, submitted that there were three overarching issues for this Board to consider. First, was the Employer obligated to inform eligible employees about the possibility of applying for a Leave of Absence that could result in the ability to reach Surplus Factor 80? Second, if so – did the Employer meet its obligation in the case of the grievors? Finally, assuming that there was an obligation upon the Employer, were there any factors that relieved the Employer of missing its obligation with respect to the grievors?

52The Union spent much time reviewing the evidence regarding the grievors’ recall of various discussions about leaves of absence and instances when leaves were offered, granted and refused. It was apparent from witnesses from both the Employer and Union that information about leaves of absence was provided in different ways, in different settings and with various levels of Employer involvement.

53The Union asserted that a review of the evidence reveals that the Employer itself was of the view that it was obligated to inform employees of the opportunity to utilize leaves of absence to reach Surplus Factor 80. And yet, to answer the second of the overarching questions of this matter, none of the grievors were informed of this option and so the only conclusion to be drawn – it was suggested – is that there has been a prima facie case of differential or discriminatory treatment because they were not given the same list of options as others. These grievors should not be disadvantaged or treated differently from those employees who were specifically offered leave of absence opportunities.

54The Union conceded that part of the possible confusion that occurred during the relevant time might have been attributable to the collective bargaining negotiations that were taking place. The uncertainty as to whether Surplus Factor 80 would continue into the next Collective Agreement contributed to the nature and extent of the information provided to grievors. The sheer bad luck of this timing ought not to have compromised the quality of information provided and yet it seemed to do just that. Indeed, some of the discussions held with the grievors muddied the waters and compromised the manner in which they proceeded and made their various elections. There was a reliable and independent basis in the evidence that established the grievors were given inaccurate information by managers about the availability of leaves of absence.

55The Union noted that there were a number of occasions where the recall of the grievors and the Employer’s witnesses were at odds. In considering this conflicting evidence it was suggested that it is necessary to keep in mind the pervasive confusion and uncertainty among bargaining unit and managerial people at the time. Further, it should be recalled that managers were denying any leave beyond the closure dates and yet later Ms. Patterson had such a leave request granted. The confusion caused the grievors to be given inaccurate information about whether leaves were available generally – and specifically the end date of any leave requested.

56The Union urged that the Employer is not relieved of its Collective Agreement obligations because the grievors did not ask the right questions. The evidence revealed that most of the grievor made efforts but these were either ignored or thwarted. It also cannot be found that the grievances fail because the Union did not ensure everyone had all information possible. While it was conceded that the Union is a party to the Collective Agreement, it is not its responsibility to administer its provisions. The Employer cannot pass off responsibility to the Union to provide essential information regarding surplussing.

57The Union stated that the grievors should not be denied their opportunity to achieve Surplus Factor 80 simply because of bad timing. Each had received their surplus notices before the new Collective Agreement was in force and therefore, according to the Employer, were not eligible for leaves of absence. The rights of surplussed employees should not expand or contract depending on the timing of their surplus notice – at least not without an explicit provision allowing such treatment. This submission is not – in the view of Mr. Bohuslawsky - a matter of pious hope. Rather, it gives proper affect to the principle of retroactivity of the Collective Agreement. Terms of the new Collective Agreement are deemed to have retroactive affect so as to avoid unfairness in the intervening period between the expiry of the old Collective Agreement and the coming into force of the new one. Each of the grievors’ employment – whether they opted for salary continuance or for remaining available for assignment – went past the February 26, 2008, ratification date of the new Collective Agreement. They all should have had their surplus notice rescinded and re-issued as happened with twenty-eight other employees according to Ms. Code. Changing the surplus notice for those twenty-eight employees undermines any claim the Employer might assert that surplus dates are carved in stone.

58Regarding the grievance of Ms. Donovan it was contended that this Board should not accept the Employer’s view that her leave request was properly denied because she had signed up for the VSD. The evidence revealed that another employee who had opted for the VSD was allowed to have her name removed and be given a leave of absence. The same option should have been provided to Ms. Donovan.

59The Union suggested that the three overarching questions must be answered in favour of the Union because the Collective Agreement should not be construed in such a way so as to leave open the possibility that the scope of surplus rights depends on luck and timing.

60The Union relied upon Re The Crown in Right of Ontario (Ministry of Community and Social Services) and OPSEU (Boulet) GSB#1189/99; The Crown in Right of Ontario (Ministry of Health and Long Term Care & OPSEU (Union) GSB#0147/01; The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) & OPSEU (Union) GSB#2009-0167; Re Campbellford Memorial Hospital & CUPE (1990), 1990 CanLII 12943 (ON LA), 14 L.A.C. (4^th) 129 (Joyce); Re Zehrs markets and UFCW, Local 1977 (1996), 1996 CanLII 20408 (ON LA), 61 L.A.C. (4^th) 25 (Newman); SaskEnergy Inc./TransGas Ltd. & CEP Local 649 [2011] S.L.A.A. No. 17; Re L/3 Communications/Spar Aerospace Ltd. & International Association of Machinists & Aeorspace Workers Lodge 1579 (2004), 2004 CanLII 94637 (AB GAA), 127 L.A.C. (4^th) 225 (Wakeling); Re Canada Post Corporation & CUPW (2010), 197 L.A.C. (4th) 180; Re The Crown in Right of Ontario (Workplace Safety and Insurance Board) & CUPE Local 1750 GSB#2007-0353; Re Penticton and District Retirement Service & Hospital Employees’ Union, Local 180 (1977), 1977 CanLII 2954 (BC LRB), 16 L.A.C. (2d) 97 (Weiler); and Re Durham Memorial Hospital & London & District Service Workers’ Union Local 220 (1991), 18 L.A.C. (4th) 320.

61By way of remedy the Union asked only for a declaration and for the Board to remain seized.

EMPLOYER SUBMISSIONS

62The Employer was of the view that notwithstanding the Union’s attempts to suggest that the Employer has various obligations in times of surplussing, it failed to provide for this Board the essential ingredient necessary for these grievances to succeed, that is, a provision of the Collective Agreement that has been violated. Contrary to the Union’s assertions, there simply is no informational obligation. There is no obligation on the Employer to inform employees who know they are about to be surplussed of ways they can buy time or extend or manipulate their Continuous Service Date in order to be eligible for Surplus Factor 80.

63Mr. Rabinovitch, for the Employer, noted that Article 20.2 provides that the purpose of the ten-day period for employees to respond to a surplus notice is to allow for a consideration of options. There is nothing about leaves of absence in that provision.

64The reality of this matter is that when the facilities were to close there were some employees who would reach Surplus Factor 80 and some that would not. Unfortunately, according to the Employer, the grievors fell short but that is not a violation of the Collective Agreement.

65The Employer reminded the Board that there is no dispute between the parties that the grievors were not entitled to Surplus Factor 80 even taking into account the bridging option. They all would have required a leave of absence to reach the opportunity to bridge to Surplus Factor 80. Therefore, what is at issue is paragraph 2(b) of Appendix 9 which provides a formula as to how to get to Surplus Factor 80. Simply put, the Collective Agreement does not contemplate the right to a leave to get employees to the bridge for Surplus Factor 80. There is no provision that obligates managers to work with employees to determine their best retirement options.

66The evidence established that employees had to put their leave requests in writing and do so before they were actually surplussed. The grievors did not do this. The Employer’s witnesses either denied or did not recall discouraging employees from applying for leaves of absences because they were not available. This is not surprising because the Human Resource employees were not the decision makers when it came to granting of leaves of absence. That task belongs to departmental managers or higher depending on the length of the absence.

67The documentary evidence is most helpful according to the Employer. One of the documents before this Board revealed that during the period between 2004 when the closures were announced and 2008 when they began there were one hundred and sixty-eight people who took a leave of absence. That makes very clear that leaves were a well known option that was highly utilized by members of the bargaining unit. All of the grievors waited until after they received their surplus notice to inquire or apply for a leave. It is this fact that sets them apart from those who inquired or applied prior to receiving notice.

68The Employer noted that after the closures were announced career centres were opened in both facilities to assist employees and the Union was quite involved with the information dissemination. Further, the 2007 Memorandum of Agreement signed by the parties contemplated leaves of absence. It is therefore not available to the Union to say it was ill informed of the process or the rules governing leaves. It is particularly worthy of note that it was clear in Section D of this memorandum that leaves of absence had to be requested before notice of surplus was received.

69Regarding the Union’s timing argument it was said that the complete answer to this submission is that there was no gap when Surplus Factor 80 was unavailable. It was known as early as December 23, 2008 that it would continue and it did. But in any event, it matters not because the grievors were not entitled to it. The 28 employees who were given the option of Surplus Factor 80 after ratification were eligible without the need of a leave. The grievors were not.

70The Employer reviewed the evidence extensively. Like the Union, Mr. Rabinovitch reviewed the situation of each grievor. Once all of that information is considered, the essential evidence for this Board to keep in mind was that leaves of absence were not available for those who had already received their surplus notice. It may be that some grievors were told a leave would not be available – but that information may well have been accurate if they made such an inquiry after receiving their surplus request. It was the Union’s onus to show that potentially successful leave of absence requests were denied and it failed to provide that evidence. Ms. Kazan and Ms. Broadbent both got leaves of absence – but those leaves were applied for and obtained prior to their receiving their notice of surplus and that sets them apart from the grievors.

71The Employer conceded that some of the grievors were – at various times – given incorrect information. This is most unfortunate but not surprising given the complexity of entitlements and the number of people involved in the closing of these facilities. These errors do not create an entitlement where previously there was none.

72It is also to be recalled, according to the Employer, that leaves of absence were not granted for the sole purpose of achieving eligibility for the bridge to Surplus Factor 80 and some of the grievors admitted that was the reason for their requests.

73The Employer suggested that the evidence of Ms. Patterson was not as compelling as the Union asserted. She testified that she offered and began a leave of absence on the same day and yet the documentary evidence disputed that assertion. Her evidence did not make sense and was not consistent with the documents.

74It was contended that when all of the evidence in this matter is reviewed it is apparent that this was a situation where a variety of Employer representatives attempted to do their best to implement the complex provisions of the Collective Agreement. Simply put, there was no evidence that any article of the Collective Agreement was violated.

UNION REPLY

76The Union replied that various provisions of the Collective Agreement have been violated. It was specifically rejected that this is a “me too” case as asserted by the Employer.

77The Union asked the Board to accept the evidence of the grievors over that of Employer witnesses given that the discussions would have been or tremendous import to each and therefore would have been remembered. The Employer’s witnesses spoke with hundreds of employees and could not be expected to have recalled any of the individual discussions with the grievors in this matter.

78Finally the Union noted that the fact that one hundred and sixty-eight people got leaves of absences does not mean that the use and availability of leaves was well known. Indeed, Ms. Kazan, Ms. Broadbent and Ms. Patterson did not know they could get a leave. Each was told by a member of management but the grievors were not.

DECISION

79In the preliminary decision on this matter, this Board was asked to consider whether there was a prima facie case assuming that the facts set out in the Union’s original particulars were true. In determining not to dismiss the grievances at that stage this Board stated at paragraph 45,

Many of the arguments put forward by both parties in this preliminary motion are more properly matters to be considered in the ultimate determination as to whether these grievances should succeed. It will be a matter of contract interpretation as well as whether the Employer has acted in bad faith.
The Employer contended that some of the grievances are nothing more than “me too” claims. Once the evidence is heard, that may be found to be true. I am not prepared to make that finding at this point in the proceedings.
According to the particulars the grievors were told by various managerial authorities not to “bother” seeking a leave of absence. The Employer submitted that on the facts set out in the particulars, there was no denial of a request for a leave of absence to any grievor other than Ms. Donovan. Accordingly there can be no consideration of whether the Article 24 has been violated. Further, the Employer said that just because information given by a manager was not correct does not establish bad faith or discrimination. While I am certainly not going to decide in this preliminary motion as to whether there was an unreasonable denial of leave of absence requests, it seems to me that the Employer cannot advise employees that there is no point in making a request for a leave of absence in accordance with Article 24 and then urge this Board to say there is no prima facie case or bad faith because those employees took their managers at their word. I do not accept that view.
It may be that there were legitimate reasons to grant some but not all employees a leave of absence. Further, I understand that the Employer takes the position that there is no absolute or defined right to a leave of absence for surplussed employees to allow them to bridge to Surplus Factor 80. However, these are not matters to be decided at this time.
The Employer also rejected the Union’s assertion that there was a “blanket” rejection of requests for leaves of absence. I understand that claim given that, by the Union’s own particulars some employees requested and obtained leaves of absences. But the fact that some obtained leaves of absence does not diminish the fact that the grievors were told leaves of absences “were not being entertained for anyone” and then acted on the direction they received to their detriment.

80As is apparent from the above, this Board was of the view that evidence had to be heard in order to determine whether there had been an actual violation of any provision of the Collective Agreement and/or whether the Employer engaged in bad faith which resulted in the grievors’ ineligibility to attain Surplus Factor 80 as had been alleged by the Union.

81After consideration of the facts and submissions, I am of the view that the Employer did not act in bad faith nor has there been any violation of the Collective Agreement.

82In Re Ministry of Health (Union) (supra), Vice Chair Johnston was asked to determine a preliminary motion regarding jurisdiction. The grievances before her alleged that the Employer administered the Collective Agreement in a fashion that caused systemic discrimination and violated various provisions such as Health and Safety. In her deliberations Vice Chair Johnston focused on the appropriate standard of review for managerial decisions. At paragraph 23 Re United Parcel Service and Teamsters Union (1981), 1981 CanLII 4389 (ON LA), 29 L.A.C. (2d) 202 (Burkett) was cited. It stated:

In our view the employer’s decision making should be assessed against the requirement to act for business reasons and the requirement not to single out any employee or group of employees for special treatment which cannot be justified in terms of real benefit to the employer. When the parties agree that such matters as classification, qualification, demotion, transfers, and the scheduling of vacations are to be in the discretion of management, they do so in the knowledge that management’s decisions in these areas will be made in management’s self interest, may adversely affect individuals and/or may not impact on all employees equally. However, it is not contemplated as part of he bargain that the employer will exercise his authority in these areas for reasons unrelated to the betterment of his business or to single out employees for the type of special treatment described. If the employer acts in the manner, the results of his actions, as they affect the bargaining unit generally or individuals within the bargaining unit may be found to be beyond the scope of his authority under the collective agreement.

83Vice Chair Johnston then cited passages from Re Ministry of Natural Resources (Bousquet). At paragraph 24 she set out the following, in part:

…..As noted above, if it could be demonstrated that the Employer had discriminated against the Grievor in denying him training and development opportunities with a view to undermining his advancement opportunities under article 4, then its actions could not be said to have been carried out in good faith, for genuine government purposes. There is nothing in the collective agreement that requires the employer to consider the advancement opportunities of employees. However, it cannot use its management rights under s 18(1) of the Act in a way which would amount to a deliberate attempt to interfere with an employee’s right to compete for a promotion. The employer cannot deliberately tilt the field with a view to preferring one employee over another. However, where in good faith and for genuine government purposes an employee is denied a training or development opportunity, where the denial is not founded upon a deliberate attempt to undermine the employee’s opportunities for promotion, the decision will not be interfered with.

84I agree with that analysis set out in both of those decisions. In applying it to the instant matter I must find that the evidence of the various Employer witnesses revealed that the process of surplussing hundreds of employees was a long and difficult process made more complex by having to ensure that it could properly care for the residents who remained. It is not surprising that some individuals, such as the grievors, might have been disadvantaged but they were not subject to bad faith or any violation of the Collective Agreement.

85In the preliminary decision this Board was not prepared to find that there was no bad faith regarding these grievors simply because the Employer made such an assertion in its submissions. Having heard the evidence from all of the grievors and the Employer management representatives, I have no hesitation in finding that there has been no bad faith in this matter.

86While I accept that there were a number of conversations that took place between various grievors, managers and Human resource representatives, some of which might not have been as fulsome as possible, I do not agree that the grievors were treated differentially or purposely disadvantaged from others. At the time there were hundreds of employees who were going through the surplussing process. The Employer had to properly follow the provisions of Article 24 for each of those employees while ensuring operational requirements were met while the facilities were being shut down.

87The Union noted that there were discrepancies in the some of the evidence and I agree with that assertion. However, there was no evidence that would substantiate that the grievors were purposely misled or specifically targeted to get a lesser benefit than others. In short, there is no evidence of bad faith.

88The Union urged that the Employer was obliged to inform eligible employees about the possibility of applying for a leave of absence in order for them to reach Surplus Factor 80. I must disagree.

89In Re Ministry of Community, Family and Children’s Services (Ashely) (supra), Vice Chair Abramsky was asked to determine grievances that alleged the Employer failed to inform employees about their opportunity to “buy-back” service for which no pension contributions had been made. At page 15 she reviewed previous Board jurisprudence in this regard and said:

Nor is the decision in Imperial Tobacco Canada Ltd. V. Bakery, Confectionary, Tobacco Workers and Grain Millers International Union, Local 3237 (McIllwraith Grievance), supra, of assistance. The decision in Imperial Tobacco Canada Ltd., supra, appears to have imposed a duty of care that qualifies management’s discretion to manage its business under the parties’ managements rights clause. Based on an established practice of formally advising employees of their pension rights during the period that employees are eligible to join the plan, the arbitrator ruled that management had a duty to make sure that the grievor was aware of his rights to join the plan when he first became eligible.

This decision, in my view is not consistent with either OPSEU (Bell), supra, or OPSEU (Bousquet), supra. In Bell, the Board specifically rejected the Union’s contention that the Employer had an independent duty of care of provide information regarding pension entitlement. In Bousquet, supra, the Board determined that there is no general duty of good faith and reasonableness in the exercise of rights reserved to management, unless it impacts a right contained in the collective agreement. As a Vice Chair of a single board, I am required to follow these GSB decisions, about compelling circumstances.

90This is not to say that the Employer had no obligations in the closing of these facilities. Indeed, according to Article 20 – Employment Stability, the Employer has many Collective Agreement obligations. In the event of a layoff it must ensure that surplussing is in accordance with seniority and that those affected be given a variety of options. The options of Notice and Pay in Lieu, Redeployment and Displacement are complex and comprehensively set out in the Collective Agreement. Nowhere therein is there any reference to Article 24, and there is certainly no reference to a positive obligation to inform employees of other provisions of the Collective Agreement.

91The evidence was that one hundred and sixty eight employees obtained leaves of absences allowing them to reach the bridging option for eligibility for Surplus Factor 80. I accept the Employer’s assertion that this fact underscores that the availability of leaves of absences was known in the workplace. Further, the parties themselves agreed upon a Memorandum of Agreement that specifically contemplated leaves. It is not incumbent upon the Employer to ensure that each and every employee in the bargaining unit is facile with all relevant provisions of the Collective Agreement and any ancillary documents.

92There can be no question that it is most unfortunate that the grievors fell short of eligibility by a matter of days – in some cases – or weeks. However, that fact is not sufficient for a finding in their favour because their ineligibility was not caused by any violation of the Collective Agreement.

93The Board has been asked in the past to consider the matter of differential treatment. In Re Sutherland (supra), Vice Chair Dissanayake considered this matter. Beginning at paragraph 17, he stated:

…..The grievor was not seeking to force the employer to exercise its discretion under article 10.1. He only wants the employer to exercise that discretion with respect to him, as it did with respect to some of his co-workers.

In my view, that distinction based on differential treatment does not assist the union. While the union alleged “differential treatment”, it explicitly stipulated that no discrimination based on a prohibited ground is asserted. Therefore, I agree with employer counsel that the union’s claim amounts to a “me too” argument, which this Board has repeated rejected, in the absence of a link to a substantial right under the collective agreement, i.e. that it resulted in a violation or abridgement of a right under the collective agreement……..

94One of the grievors, Ms. Donovan, did apply for a leave of absence and was denied. I am of the view that the denial of her leave request was not unreasonably withheld given that she had elected to put herself on the VSD list. That election disentitled Ms. Donovan to a leave of absence.

95The Union urged that there was much confusion about various rights because of the timing of collective bargaining negotiations and the fact that the parties did not know if the Surplus Factor 80 right would be continued. While that may well be true, the fact remains that the grievors still did not qualify for Surplus Factor 80 after ratification of the new Collective Agreement. They fell short. The Employer was under no obligation to rescind and re-issue surplus notices. There was no retroactive application of the Collective Agreement causing the Employer to do so.

96While this Board is most sympathetic, in the absence of a violation of the Collective Agreement and any bad faith, the grievances must be dismissed.

Dated at Toronto, Ontario this 9^th day of November 2015.

Ontario Public Service Employees Union (Dufour et al) v. The Crown in Right of Ontario (Ministry of Community and Social Services), 2015 CanLII 89914

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Union