GSB# 2016-2406

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Vescio)

Association

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE ASSOCIATION

Nadine Blum Goldblatt Partners LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Labour Practice Group Counsel

FOR THE THIRD PARTY

Susan Parsons, on her own behalf Landlord and Tenant Board, Ministry of the Attorney General

HEARING

November 19, 2019

Decision

1The complainant, Mr. Nick Vescio was employed as a mediator in the Mediation Services Unit of the Dispute Resolutions Branch Automobile Insurance Division of the Financial Services Commission of Ontario (“FISCO”). FISCO Mediator was a multi-incumbent position classified at level 6 of the Legal Services Functional Group. The employer declared the FISCO Mediator position surplus, and affected employees received surplus notice and notice of layoff dated April 5 and April 14, 2016 respectively, with a layoff date of October 14, 2016.

2In November and December 2016 six FISCO Mediators filed disputes under article 27 of the collective agreement claiming that the employer violated the collective agreement by deciding that they were not entitled to bump into a position of Dispute Resolution Officer (“DRO”) at the Landlord and Tenant Board, Ministry of the Attorney General. Some also claimed a right to bump into other positions and/or a right to a Targeted Direct Assignment.

3The six complainants who filed disputes under article 27, and their continuous service dates in order of seniority are as follows:

(a) Chris Jackson (2002-01-02)

(b) Rebecca Hines (2002-05-27)

(c) Salvator Maietta (2005-01-04)

(d) Anna Teskey (2008-01-02)

(e) Claude Mbuyi (2008-09-09)

(f) Nick Vescio (2010-02-01)

4Subsequently the disputes filed by employees listed from (a) to (e) above were settled. The dispute filed by Mr. Vescio, the least senior of the six complainants, was not settled. When his dispute was scheduled for arbitration, the parties provided third party notice to Ms. Susan Parsons, who had a continuous service date of July 14, 2014, as the least senior DRO at the Landlord and Tenant Board whose legal rights and employment status may be affected by the disposition of Mr. Vescio’s dispute.

5This decision relates to a motion by Ms. Parsons claiming that she should not be the least senior DRO at risk, should the Board decide that Mr. Vescio is entitled to bump into a DRO position. Ms. Parsons’ reasoning is to the effect that at the present time she is not the least senior DRO because another employee (hereinafter Ms. F) had subsequently joined the Landlord and Tenant Board as a DRO, and Ms. F has a continuous service date of February 3, 2015, compared to her continuous service date of July 14, 2014. She contends that, should Mr. Vescio’s dispute be upheld, it is Ms. F who should be displaced, not her. She argued that it would be unfair to displace her rather than the least senior DRO at the present time. She submits that the “current” seniority list should be used to determine the least senior DRO, not an old seniority list. Ms. Parsons pointed out that the collective agreement does not specify which seniority list has to be used. She urged the Board to order that the current list should govern, because it is fairer.

6Ms. Parsons also made alternative arguments. First, that had the employer complied with the collective agreement, Ms. F would have been rolled over to full-time status in August 2016. If that happened she would have been the least senior DRO even on the seniority list the parties had used. Second, Ms. Parsons argued that Mr. Vescio became entitled to displace her only because the more senior FISCO mediators settled their disputes. He was not so entitled on September 11, 2019, when the instant hearing commenced. Had any of the other complaints not settled, Mr. Vescio would not have been entitled to bump her.

7Counsel for AMAPCEO submitted that the Board has already established the principle that when determining bumping rights of surplussed employees, seniority must be decided on the basis of the circumstances frozen as of the time that the alleged violation crystallised. Reliance was placed on Re OPSEU (Union) and Ministry of Government Services, 2011-0110 (Herlich). She submitted that besides that arbitral principle, the AMAPCEO collective agreement in fact gives explicit direction to the parties on the relevant time to assess seniority. Reliance was placed on article 27.9.1.

8Employer counsel submitted that the employer had made the same argument Ms. Parsons makes here, that Mr. Vescio cannot rely on his advancement in the seniority rank as a result of the settlement of the more senior complainants’ disputes. The Board had rejected that argument made by the employer in an earlier decision in this proceeding. Re AMAPCEO (Mbuyi) and Ministry of Finance, 2016-2694 (Dissanayake). He stated that while the employer understands Ms. Parsons’ “unfairness” argument, the principle established by arbitrator Herlich is legally correct. He pointed out that in Re Mbuyi (supra), in rejecting the employer’s position, the Board at para. 20 wrote:

That submission has appeal from a fairness point of view. However, while I have sympathy for that assertion, the legal reality is that this Board has no equitable jurisdiction. Its authority is to interpret and apply the terms agreed upon by the parties. It cannot disregard, amend or add to the agreed upon terms, even if it is of the view that enforcement of those agreed upon terms result in unfairness to one or the other of the parties.

9I will not deal with the submissions as to whether or not Ms. F should have been rolled over into full-time status earlier. Ms. F has not filed a dispute in that regard. Nor have the employer and AMAPCEO joined issue on that matter. It is not possible, and even if it is, it would be completely inappropriate to decide that issue in this proceeding which is about a dispute filed by Mr. Vescio.

10As I did in Re Mbuyi, I understand and sympathise with Ms. Parsons’ sentiment that the result would be unfair to her. However, what I wrote in Re Mbuyi is true in this case as well. This Board has no general power to do what it believes to be fair. Its authority is to interpret and apply the collective agreement and the law, except in very limited circumstances not relevant here.

11In Re OPSEU (Union) and Ministry of Government Services (supra) the Board was called upon to apply the job security and surplussing provisions of the OPSEU collective agreement. The decision does not refer to any specific term of the collective agreement relating to the appropriate seniority list to use. Nevertheless, at para. 18 arbitrator Herlich wrote.

18The provisions of Article 20.4 are elaborate and fine in their details. I have not set them out here because, for our current purposes, it is sufficient to note (and the parties were in agreement on the point), that the displacement provisions provide a surplus employee with a single opportunity to exercise “bumping rights”. This has been referred to, in other contexts, as a provision which provides “the best bump of the day”. The right only arises at a single moment in time and if an appropriate “bump” cannot be found as of that point in time, the right is spent, it does not continue.

12In that case, it was the employee seeking to bump who attempted to rely on subsequent events to assert a right to bump. The Board rejected that argument. Here, it is the incumbent in the position targeted for a bump relying on subsequent events. In the OPSEU case both the union and the employer had agreed on the proper principle; and the Board endorsed their agreement and rejected the concept of a changing seniority list. Even in the absence of an explicit provision in the collective agreement, in my opinion that principle makes very good sense because it is not practical to have a “moving” seniority list; one that may change as events occur in the workplace, such as new employees entering or exiting the bargaining unit.

13In any event, in the instant collective agreement, there is a provision that is consistent with the arbitral principle in the OPSEU case. Article 27 sets out the steps that chronologically follow when employees receive notice of surplus. The material part of article 27.9.1 reads:

27.9.1 If an employee has not been directly assigned in accordance with Article 27.8 by the end of the fifth (5th) month from the receipt of the notice of surplus, the Employer shall identify the bumping option, if any, for employees who are declared surplus and employees who are bumped by employees with greater seniority and have bumping rights. In identifying the bumping option, the Employer shall, in accordance with the ordering rules in Article 27.9.3, look for the permanent AMAPCEO unit position occupied by the least senior employee for which the surplus employee is qualified, based on the following criteria:

14Thus the collective agreement between the employer and AMAPCEO addresses the question, when the employer is to identify the bumping option. It must be done when “… an employee has not been directly assigned in accordance with article 27.8 by the end of the fifth (5th) month from the receipt of the notice of surplus”.

15In these circumstances, to order that the employer must use the current seniority list, would be to disregard or amend the terms of the collective agreement. As I observed in Re Mbuyi (supra) in rejecting the employer’s argument, this Board has no authority to disregard or amend a term of the collective agreement because in its opinion the result of applying the provision in the collective agreement in a particular case is not fair. Therefore, to apply the current seniority list, as Ms. Parsons urges me to do would be to ignore article 27.9.1. Although that may seem to produce a fairer result, it is not something the Board is authorized to do. Therefore, I have no alternative but to dismiss the motion advanced by Ms. Parsons.

16I remain seized. The hearing will continue as scheduled.