GSB#2014-2551; 2014-2984; 2013-1446, 2013-1574, 2013-1696

UNION#2014-0302-0010; 2014-0302-0012; 2013-0999-0049, 2013-0999-0063, 2013-0999-0069

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Koeslag et al-Union)

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Reva Devins

Vice-Chair

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Robert Fredericks Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 17, 2015

Decision

1The Union filed three grievances regarding the interpretation and application of the Transition Exit Initiative (TEI) in Appendix 46 of the Collective Agreement. There are also numerous individual grievances that the parties agreed to hold in abeyance pending the outcome of the Union’s policy grievances.

2In order to assist with the efficient resolution of these matters, the Employer raised a preliminary objection, which was previously decided, and the parties now agree to proceed with the grievances of Bev Koeslag and Nina Brideau on the basis of the following agreed statement of facts:

a. At the time of their applications for TEI and the time of the grievances, the Grievors were employed in the Retail Offices Branch of the Whitby office of Service Ontario, Ministry of Government Services, in the position of Customer Service Representative (CSR2 classification).

b. Service Ontario is organised into four regions covering the Province of Ontario (Central Region, East Region, West region and North Region). The Central region comprises 11 different offices, including the Whitby office, the Barrie office and the Mississauga office.

c. At the time the Grievors’ TEI applications were considered, it is conceded that the Employer had plans to reduce positions in the OPSEU bargaining unit, pursuant to para. 2(i) of Appendix 46 of the OPSEU Collective Agreement.

Bev Koeslag Grievance

d. On February 11, 2014, Ms. Koeslag submitted a TEI application. Ms. Koeslag’s continuous seniority date was May 28, 1979. In her application, she requested the option of receiving six month’s salary continuation to the date of her retirement, pursuant to clause 5(ii) of Appendix 46.

e. Ms. Koeslag was originally employed in the Ministry of Health in 1979. In or about July 2000, she commenced providing front-line customer service in the Oshawa office of the Ministry of Health, still classified at the OA9 level.

f. Prior to her TEI application, Ms. Koeslag’s position was transferred to the Ministry of Government Services, Retail Operations Branch, and her location changed from Oshawa to Whitby, Ontario where she was classified as a Customer Service Representative 2 performing customer service functions including with respect to Health Card client registration, the function she had been performing at the Ministry of Health. In addition to Health Card registration, prior to Ms. Koeslag’s application for the TEI, she took on additional functions related to products such as drivers’ licenses and vehicle registration.

g. On February 12, 2014, the Employer acknowledged receipt of Ms. Koeslag’s TEI application.

h. Following her application, the grievor had discussions with her acting manager regarding her TEI request, the payment options, and the exit date.

i. Because she had not yet reached her 90 factor, Ms. Koeslag did not view the “lump sum” option as a viable one for her. Ultimately, however, the Employer’s decision was made for the reasons set out below, and neither the payment option nor the exit date were factors in the employer’s decision.

j. On June 16, 2014, Ms. Koeslag withdrew her TEI application dated February 12, 2014.

k. On June 20, 2014, Ms. Koeslag re-submitted a TEI application.

l. On June 20, 2014, the Employer acknowledged receipt of Ms. Koeslag’s re-submitted TEI application.

m. In July 2014, the Employer considered Ms. Koeslag’s re-submitted TEI application and concluded that she was not eligible for TEI, due to operational needs. In this regard, the Employer determined that the Whitby office of Service Ontario was under its full-time budgeted complement and it would be necessary to backfill any vacancy created as a result of granting Ms. Koeslag’s TEI application. As a result, the approval of Ms. Koeslag’s application would not result in net cost savings for the Employer.

n. On July 31, 2014, Ms. Koeslag retired from the OPS on an unreduced pension. On the date of her retirement, she was 55 years old and had 35 years of service.

o. On July 31, 2014, Ms. Koeslag filed grievance #2014-0302-0010 disputing the Employer’s non-approval of her TEI application.

p. Following her retirement, the Employer conducted a job competition to fill the vacancy created by Ms. Koeslag’s retirement. In addition, Ms. Koeslag returned in June 2015 to work at the Whitby office in a fixed term capacity in the same position, working casual hours.

q. Since she was transferred out of the Ministry of Health and was moved to the Whitby office, several of Ms. Koeslag’s former colleagues from the Ministry of Health in the Oshawa office have retired, and were granted the TEI. At least one of those colleagues, Margaret MacDonald, Support Services Clerk at the OA6 level, was junior to Ms. Koeslag, with a continuous service date from October 14, 1980. Her TEI was approved March 28, 2014.

Nina Brideau Grievance

r. On February 11, 2014, Ms. Brideau submitted a TEI application. Ms. Brideau’s continuous service date is December 3, 1979. Her application requested the salary continuance option under paragraph 5(ii) of Appendix 46.

s. Following her request, the grievor had discussions with her acting manager regarding her TEI request, the payment options, and the exit date.

t. Because she had not yet reached her 90 factor, Ms. Brideau did not view the “lump sum” option as a viable one for her. Ultimately, however, the Employer’s decision was made for the reasons set out below, and neither the payment option nor the exit date were factors in the employer’s decision.

u. Ms. Brideau was originally employed in the Ministry of Health in 1979. In or about June 1995, she commenced providing front-line customer service in the Oshawa office of the Ministry of Health, still classified in the OA8 level.

v. Prior to her TEI application, Ms. Brideau’s position was transferred to the Ministry of Government Services, Retail Operations Branch, and her location changed from Oshawa to Whitby, Ontario where she was classified as a Customer Services Representative 2 performing customer service functions including with respect to Health Card client registration, the function she had been performing at the Ministry of Health. In addition to Health Card registration, prior to Ms. Brideau’s application for the TEI, she took on additional functions related to products such as drivers’ licenses and vehicle registration.

w. On February 12, 2014, the Employer acknowledged receipt of Ms. Brideau’s TEI application.

x. In July, the Employer considered Ms. Brideau’s TEI application and concluded that she was not eligible for TEI, due to operational needs. In this regard, the Employer determined that the Whitby office of Service Ontario was understaffed and it would be necessary to backfill any vacancy created as a result of granting Ms. Brideau’s TEI application. As a result, the approval of Ms. Brideau’s TEI application would not result in net cost saving for the Employer.

y. On September 22, 2014, Ms. Brideau filed grievance #2014-0302-0012 disputing the Employer’s non-approval of her TEI application.

z. Ms. Brideau continued to work as a Customer Service Representative at the Whitby office until her retirement January 30, 2015.

aa. Since she was transferred from the Ministry of Health and was moved to Whitby, several of Ms. Brideau’s former colleagues from the Ministry of Health have retired, and were also granted the TEI. At least one of those, Ms. Margaret MacDonald, was junior to Ms. Brideau, with a continuous service date from October 1980.

TEI Approvals in Other Service Ontario Offices

bb. Since the implementation of TEI, the Employer has approved the TEI applications for the following Customer Service Representatives in other Service Ontario offices in the Central Region:

Barrie office: Jacqueline Bennett (CSR2)

TEI approval date: December 16, 2013

Continuous Service Date: Feb. 25, 1991

Jacqueline Fuhre (CSR4)

TEI approval date: June 16, 2015

Continuous Service Date: July 11, 1994

Mississauga office: Alicia Mahipat (CSR2)

TEI approval date: September 2015

Continuous Service Date: May 4, 1998

cc. Since the implementation of TEI, Customer Service Representatives in Service Ontario offices in other regions have also had their TEI applications approved.

dd. The Employer determined that the exit of the applicants who were approved for TEI supported the transformation of the OPS. For example, the Barrie office in which the applicants worked were over their budgeted full-time complement, and it would not be necessary to backfill for any vacancies created as a result of the exit of those employees. As a result, the approval of these TEI applications resulted in net cost savings for the Employer.

Appendix 46

3Appendix 46 sets out the parties agreement to a Transition Exit Initiative and provides as follows:

1. All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI).

2. An employee may request in writing voluntary exit from employment with the OPS under the TEI, which request may be approved by the Employer in its discretion. The Employee’s request will be submitted to the Corporate Employer. The Employer’s approval shall be based on the following considerations:

i. At the time that an employee TEI request is being considered, the Employer has plans to reduce positions in the OPSEU bargaining unit; and

ii. The Employer has determined in its discretion that the employee’s exit from employment supports the transformation of the Ontario Public Service.

The Employer shall provide written confirmation of receipt of the employee’s request within 30 days with a copy to the Union. If the employee’s request is approved, the Employer shall provide written notification to the employee with a copy to the Union, and such notification shall include the job title, classification, Ministry and workplace of the employee. An employee may withdraw his/her request by written notice to the Corporate Employer.

3. If there is more than one employee eligible to exit under the TEI, the determination of who will exit shall be based on seniority.

4. An employee who has received notice of Employer approval to exit under the TEI shall be deemed to have accepted one of the options as outlined in Paragraph 5.

5. An employee who exits from employment under TEI will only be entitled to the following:

i. A lump sum of six (6) months’ pay, plus one (1) week pay per year of continuous service; or

ii. Continuance of salary plus benefits (except STSP and LTIP) for six (6) months commencing on the date set out in Paragraph 6, plus one (1) week pay per year of continuous service or its equivalent period of further salary continuance plus benefits (except STSP and LTIP). For clarity, during the salary continuance period, employee and Employer pension contributions and vacation and pension credits will continue to accrue. Notwithstanding the above, the further salary continuance period shall not be greater than the length of time between the commencement of the salary continuance and the end of the month in which the employee will attain sixty-five (65) years of age. Any remaining balance will be paid forthwith as a lump sum.

iii. Where the employee does not choose a specific pay-in–lieu option, the employee shall be deemed to have chosen the lump sum option under 5(i).

6. Where an employee is exiting under the TEI, his or her last day at work shall be five (5) working days after the notice of Employer approval to exit is received, or such other period as the employee and the Employer shall agree.

7. The payment under Paragraph 5 and any payout of unused vacation or compensating leave credits are payable as soon as possible, but no later than three (3) pay periods following the employee’s exit under the TEI.

8. Employees exiting under the TEI shall have the entitlements in Paragraph 5 in lieu of the entitlements in Article 53 or 78 (Termination Payments) and paragraph 4 (b) of Appendix 9 (Employment Stability) of the Collective Agreement.

9. The parties agree that all employees exiting under the TEI are doing so pursuant to a program of downsizing undertaken by the Employer and in so doing are preventing another employee from being laid off. Accordingly the Employer agrees to take all necessary steps to attempt to ensure that the Human Resources and Skills Development Canada recognizes that the entitlement to Employment Insurance of employees who are laid off and who take a pay-in-lieu of notice option qualifies as registered ‘workforce reduction processes’ under the Employment Insurance Act.

10. The parties agree that at no time will the numbers of employees exiting under the TEI exceed the number of positions identified by the Employer to be reduced in the bargaining unit.

11. This MOA forms part of the collective agreement.

Submissions

4The Union maintains that the Employer is not entitled to determine eligibility for the TEI based solely on local considerations. In its submission, the initiative is intended to effect transformation of the OPS, broadly defined, and is not restricted to individual local offices, divisions, regions or ministries. Moreover, the parties have agreed that seniority will determine which employee will exit the OPS where more than one employee is eligible for TEI. There are numerous instances in the collective agreement where the parties limited the application of seniority, by classification or ministry. No such limits are found in Appendix 46 and therefore it should operate bargaining unit wide, as it does in the normal course under the collective agreement.

5In the Union’s submission, paragraph 1 of Appendix 46 determines eligibility to apply for the TEI and paragraph 2 governs approval, but paragraph 3 requires that seniority be the deciding factor. It was submitted that seniority is thus a fetter on the Employer when it grants or denies approval. Therefore, when the Employer is considering a request for TEI, they must consider who the senior applicants are in the pool of those otherwise eligible.

6The Union acknowledged that a comprehensive process, properly resourced, would be required to administer the initiative so that OPS wide applications for TEI can be considered on a rolling basis. However, it suggested this is frequently the case in the administration of the collective agreement and is not determinative of the proper interpretation of Appendix 46. Finally, the Union submitted that if only local considerations are relevant in determining individual approval for TEI, the opportunity to apply the seniority provision contained in paragraph 3 would be vastly diminished.

7In the particular cases at hand, there were employees performing the same job, in the same region, who were junior to the grievors and who were granted the TEI. There was also at least one employee, in another ministry, doing substantially similar work that was approved to exit with a TEI. In the Union’s submission, the grievors were entitled to have their requests considered in light of the overall needs in the OPS and, based on their greater seniority, they should have been approved for TEI.

8The Union cited the following cases in support of their arguments: Re Western Grocers, Division of Westfair Foods Ltd. and Retail, Wholesale and Department Store Union, Loc. 469, (1989) 1989 CanLII 9376 (MB LA), 6 LAC (4^th) 1 (Freedman); Lakeport Beverages v. Teamsters Local Union 938, (2005) 2005 CanLII 29339 (ON CA), 143 LAC (4^th) 149 (OCA).

9The Employer submitted that the sole issue before me is whether it properly exercised the broad discretion afforded under Appendix 46 when it approved the grievors’ TEI requests. The Employer maintained that it considered the grievor’s applications individually, in good faith and concluded that the grievors’ departure did not support the transformation of the OPS because their positions could not be eliminated. All relevant factors were taken into account and no irrelevant ones considered. In its submission, there is no evidence that either decision was arbitrary, discriminatory, unreasonable or made in bad faith. Therefore, the grievances must fail.

10With respect to seniority, it was the Employer’s position that this is a peripheral consideration that is not relevant when it determines whether or not an individual request for TEI should be approved. In accordance with paragraph 2 of Appendix 46, the only factors that are relevant are whether the Employer has plans to reduce positions in the bargaining unit and whether the employee’s exit supports transformation of the OPS. The Employer maintains that is has been afforded broad discretion in arriving at its conclusion and was entitled to consider whether the positions occupied by the grievors would remain or could be eliminated. It was further argued that paragraph 3 of Appendix 46 is only invoked after the Employer makes a decision under paragraph 2; thereafter the relative seniority of eligible employees is considered.

11The Employer relied on the following cases: OPSEU (Ford) v Ministry of Transportation, (1990) GSB #571/89 (Barrett); OPSEU (Mailloux) v. Ministry of Correctional Services, (1989) GSB #0087/88 (Picher); Teamsters, Local 647 v. Natrel Inc., (2004) 129 LAC 94^th) 419, (Member).

12The Union replied that although the language found in Appendix 46 is not as precise as one might like, on the Employer’s interpretation, they can essentially define away the entitlement conferred in paragraph 3 by considering the application within a very narrow scope of operation. If the Employer is permitted to consider every application in isolation without considering seniority, they could convert the process into one that is so specific to the individual employee that the opportunity to apply the provisions of paragraph 3 never arises, thereby seriously undermining the seniority rights it confers.

Decision

13The facts in this matter are straightforward and not in dispute. Both grievors were very long service employees who applied for the TEI in order to bridge the period remaining before their retirement. Although the Employer intended overall reductions in the bargaining unit, it determined their eligibility for the TEI based solely on local operational needs. The office in which the grievors worked was under complement and the Employer would have to backfill their positions after they departed. The Employer therefore concluded that the grievors’ exits would not result in any cost savings and denied their requests for the TEI.

14The Union maintains that the Employer is required to approve requests on the basis of OPS wide seniority: paragraph 3 of Appendix 46, properly construed, fetters the Employer’s discretion and requires that requests be considered broadly, taking into account other offices, regions and ministries and the relative seniority of employees applying for TEI.

15I accept the general proposition that seniority will generally apply on a bargaining unit wide basis, and, to the extent that the scope and application of paragraph 3 of Appendix 46 is at issue, I agree that the seniority rights it affords do operate on that basis. I also agree with the Union that seniority is a cornerstone of modern collective bargaining and that great care must be taken to ensure that seniority rights are not eroded by the exercise of management’s discretion. Decisions must be made in good faith and any apparent attempt to evade the application of seniority provisions must be carefully examined. Similarly, a provision that grants rights on the basis of seniority must be interpreted so that it has a meaningful impact in practice.

16However, the issue before me is not how paragraph 3 operates where the seniority rights of two employees have been clearly engaged, but rather what impact, if any, those rights have on the Employer’s decision to approve their requests in the first instance. It is the interplay of these two paragraphs that is at issue. In that regard, the scope of the seniority rights afforded under paragraph 3 is only relevant if the Union is correct that paragraph 3 imposes obligations on the Employer when exercising its discretion under paragraph 2.

17I have considered the Union arguments and concluded that they are not supported by the structure or specific language used in Appendix 46, by the purpose and objectives of Appendix 46 or the administrative machinery required to implement the interpretation advanced by the Union. The Union has effectively argued that once the Employer decides that it needs to reduce positions in the OPS as a whole, its discretion to approve individual requests is fettered and must be decide on the basis of seniority. In my view, that is an over reading of paragraph 3 and converts the limited seniority rights conferred in Appendix 46 into the paramount consideration in granting the TEI. That is a restriction and fettering of the Employer’s discretion that is far more onerous than the language supports.

18Appendix 46 sets out a comprehensive process for the operation of the TEI. It defines who is eligible to apply (paragraph 1); the approval process (paragraph 2); the role of seniority where more than one employee is eligible to exit (paragraph 3); entitlements (paragraph 5 and 8); timing of the employee exit and payments (paragraph 6 and 7); and the nature of the program which is part of a downsizing initiative designed to prevent the layoff of other employees (paragraph 10 and 11).

19Paragraph 2, in dealing with the approval process, is similarly detailed. It includes particulars of how the request is to be made (in writing); to whom it is submitted (the Corporate Employer); what considerations the Employer must take into account; how, to whom and when the Employer must give notice of their approval; and provides that the employee can withdraw their request once notified of the Employer’s approval.

20The language used in Appendix 46 does not explicitly connect the seniority entitlements in paragraph 3 to the approval process set out in the preceding paragraph. The Union suggested that the reference to employees “eligible to exit” in paragraph 3 refers to the employee’s status, pre-approval, and that it is implied that the two sections will operate together. I do not agree. In my view Appendix 46 sets out a sequential process and it is only after an employee request has been approved and the employee does not decide to withdraw their request, that paragraph 3 comes into play. When paragraph 3 refers to an “employee eligible to exit under the TEI”, it is referring to both of those conditions having been met: that the Employer has approved the exit under TEI and the employee wishes to pursue it.

21These are sophisticated parties who could have easily made it clear that they intended these paragraphs to work together. They have not. Instead, they have included the approval process as a distinct and separate provision that fully sets out the manner in which requests for TEI will be approved. The structure of Appendix 46 as a whole and the comprehensive nature of the approval process set out in paragraph 2 do not lend themselves to the interpretation advanced by the Union.

22Furthermore, the language used in paragraph 2 clearly affords the Employer broad discretion to approve or deny an employee’s request for TEI. It provides that the Employer may approve a request for TEI in its discretion, if the Employer has plans to reduce positions in the OPSEU bargaining unit and it has determined in its discretion that the employee’s exit supports the transformation of the OPS.

23Broad discretion in the approval of TEI requests also makes sense in light of the objective and purpose of Appendix 46. The stated objective is to encourage employees to voluntary leave the OPS and avoid involuntary layoffs if the number of positions in the OPS must be reduced. Given that objective, management must be permitted to consider whether offering a costly incentive in a particular case actually assists them in meeting that objective. On the Union’s interpretation, the TEI would operate more as a general retirement benefit than a targeted inducement to minimise the impact of workforce reductions.

24The facts at hand are a perfect illustration of this point. The Employer denied the grievors’ TEI requests because their exit would not reduce the permanent complement of employees. The Whitby office, where the grievors were both employed at the time of their request, was already under complement and other staff would have to be hired to replace them upon their departure. There was no suggestion that this was an attempt by the Employer to avoid the seniority rights conferred under paragraph 3 or was a pretext for some other reason to withhold approval. Indeed, after Ms. Koeslag retired, her position was back filled and she returned to the office as a fixed term employee working casual hours. While other employees in other offices were granted the TEI, it is difficult to see how the Union’s interpretation would result in either meaningful cost savings or prevent layoffs. The Employer could not require full time staff to move to the Whitby office to replace the grievors and staffing needs would still be out of balance: they would be under complement in Whitby and over complement in other offices.

25Finally, the administrative complexity inherent in the Union’s interpretation further reinforces my conclusion that it is not what the parties intended. As acknowledged by the Union, it would take an extraordinarily complex and expensive administrative design to implement the initiative as conceived of by the Union. All requests would have to be processed centrally, with a rolling list of all employees who have requested but not yet been approved for TEI maintained and considered before any individual request could be determined. Seniority would then operate to determine which employee is granted a TEI, irrespective of operational needs consequent to their particular departure. Although not determinative, I consider the process put forward by the Union as being so unwieldy and expensive that is unlikely that the parties would have agreed to it. I am certainly reluctant to impose that system in the absence of clear language supporting that interpretation.

26Both parties agreed that the guidelines for the proper exercise of discretion enunciated in Kuyntjes, GSB #513/84, governed the Employer’s decisions under Appendix 46. The Union did not advance arguments that the Employer in this case exercised its discretion in bad faith, or in a manner that was discriminatory, arbitrary or unreasonable. I accept the submission of the Employer that it considered the individual merits of the grievors’ applications for TEI and did not adhere to a rigid policy in refusing their applications.

27While the Union did not directly attack the employer’s exercise of discretion in this case, it did suggest that there could be cost savings to the Employer even if they were required to back fill the grievors’ positions. Be that is it may, I have determined that the Employer has a broad discretion to determine whether in their opinion the exit of an employee who has applied for TEI supports the transformation of the OPS. Although they could have found that the grievors’ exit supported their vision of transformation, they took a different view. Absent evidence that they improperly exercised their discretion, they were free to make the decision that they did. They were not required to consider seniority at that point, nor were they obliged to consider the request in light of the staffing needs at other offices or in other regions or ministries. The grievances filed by Ms. Koeslag and Brideau with respect to the non-approval of their TEI requests are therefore dismissed.