GSB#2016-2225; 2013-1446, 2013-1574, 2013-1696

UNION#2016-0607-0002, 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 (Anich-Union)

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Reva Devins

Arbitrator

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 10, April 12 and June 5, 2019

DECISION

1This is one of a series of grievances that arise from the operation of the Transition Exit Initiative, (“TEI”), set out in Appendix 46 of the Collective Agreement. I have now issued three decisions regarding the scope of the Employer’s discretion to allow or deny a request for TEI: the first was issued on January 12, 2016 regarding Ms. Koeslag and Brideau, the second was issued on October 28, 2018 with respect to the grievance of Mr. Vadera and the third decision was issued on November 29, 2018 regarding the grievance of Ms. Kimmel.

2Beth Anich, the Grievor in this case, applied for TEI in January 2016, however, while the Employer considered her request, it was not approved before she retired on November 30, 2016. The Union maintains that the Employer took into account the Grievor’s retirement eligibility in determining whether to grant her request for TEI. In their submission, consideration of her pension eligibility was both irrelevant and amounted to discrimination on the basis of age. The Employer disputes the Union’s assertion that the Grievor’s retirement was a factor that it considered. Moreover, it maintains that an employee’s retirement status might be a relevant factor and non-discriminatory in some circumstances.

Agreed Statement of Facts

3The parties submitted an Agreed Statement of Fact (“ASF”) as follows:

1. Beth Anich, the grievor, was employed with the Ontario Public Service since July 19, 1983.

2. Ms. Anich made application for TEI on January 7, 2016. Her TEI application was acknowledged by her manager that same day, January 7, 2016. In her application, she indicated an agreed upon exit date of October 31, 2016. At the time of her TEI application, Ms. Anich was employed as an Early Resolution Officer (ERO) within the Provincial Claim Center within the Operations Division of the Ministry. At the time of her TEI application in January of 2016, based on her age and years of service, Ms. Anich was eligible for an unreduced pension.

3. On March 16, 2016 was advised that her TEI application “[had] not been approved at [this] time” and that it “[did] not support the ministry’s current transformation plans.’

4. In 2013 and into 2014, the Ministry of Labour routinely granted TEI applications. However, following a review of the TEI process, the Ministry ceased routinely granting TEIs in March of 2014 due to the significant monetary burden that was created as the fact that most TEIs that were granted in that timeframe were unrelated to transformation in the Ontario Public Service. Since March of 2014, and during the relevant time frame, the Ministry would only consider granting a TEI application where there was actual transformation.

5. Prior to 2014, the Provincial Claim Center had an Early Resolution Officer complement of 30 FTEs. In 2014, the FTE complement was increased to 33. In the years 2016 and 2017, the managers (there are two co-ordinate managers) in the Provincial Claim Center, and their Director, sought approval to further increase their FTE complement for Early Resolution Officers.

6. At the time of her TEI application and even following her retirement, the Ministry had no intention of reducing the number of Early Resolution Officers. In fact there was no intention to reduce in any way the complement of the Provincial Clam Centre. To the contrary the management was interested in increasing its FTE count in the Provincial Claim Centre. It was the Ministry’s view that there was no transformation that would be supported by granting Ms. Anich’s TEI application.

7. Ms. Anich retired on November 30, 2016. Prior to retiring on November 30, 2016, Ms. Anich advised the Employer on November 14, 2016 that she was retiring as a result of the government’s plan to implement a co-pay for post-retirement benefits. Ms. Anich further advised that were it not for the co-pay, she would not have retired at that time.

8. On or around November 14, 2016, Ms. Anich spoke with Stacey Bennett, one of the two managers at the Provincial Claim Centre, regarding why she was not approved for TEI. Ms. Bennett advised Ms. Anich that she was not approved because they could not afford to lose the position. Ms. Anich advised Ms. Bennett that that was not her understanding of the effect of granting a TEI.

9. Since Ms. Anich’s retirement, her vacant Early Resolution Officer position was posted and filled.

Evidence of Neil Martin and Peter Augruso

4The agreed statement of fact was supplemented by the vive-voce evidence of two witnesses: Neil Martin, an active member of the Union and Peter Augruso, the Assistant Deputy Minister, Operations Division, at the Ministry of Labour.

5Mr. Martin testified that a union colleague advised him in the late fall of 2016 that Ms. Anich’s request for TEI had not been approved and that her eligibility for retirement may have been a factor in that determination. Mr. Martin offered to call Mr. Augruso, the ADM, who he knew from working with him on MERC, the Ministry Employee Relations Committee, along with Ms. Anich.

6When Mr. Martin called Mr. Augruso to ask for his help with Ms. Anich’s request for TEI, he stated that Mr. Augruso said that there was nothing he could do because the Grievor was eligible to retire. Augruso also mentioned that he had wanted to help another member, who was gravely ill, but was unable to do so because he was also eligible for retirement.

7According to Mr. Martin, the call was friendly, cordial and brief. He did not make any notes of their conversation, did not recall the exact words he used in the conversation or whether he asked Mr. Augruso to consider or reconsider Ms. Anich’s request for TEI. Nor did he take issue with Mr. Augruso’s explanation when he said that he could not approve Ms. Anich’s TEI because she was eligible to retire or suggest that that was inappropriate.

8On cross-examination, Mr. Martin was somewhat uncertain of the exact timing of the phone call, although he believed it was shortly after hearing about the Grievor’s non- approval. He acknowledged that he did not give Mr. Augruso any reason why the Grievor’s TEI request should be allowed or offer any additional factors that should be considered. He also testified that he met with Mr. Augruso at a conference at the Notawasaga Inn a few weeks later but could not recall whether the question of Ms. Anich’s TEI was raised when they met.

9Mr. Augruso’s recalled speaking to Mr. Martin about Ms. Anich’s TEI application only once, in the fall of 2016 at a learning event at Notawasaga Inn; not during a separate phone call. He testified that Mr. Martin initiated the conversation and asked if he could do him a favour and push through Ms. Anich’s application for TEI.

10Mr. Augruso testified that at the time of their conversation, the Ministry was not undergoing any transformation and, in fact, was growing. He advised Mr. Martin that he could not approve the Grievor’s TEI application, but that at least she had something to fall back on because she was eligible to retire. He went on to offer an example of another employee with a very serious illness who he had wanted to assist through the TEI but could not, despite the sympathetic situation that he was in. He was unaware of whether that employee was eligible to retire.

11Mr. Augruso confirmed that all TEI requests go through the Senior Management Team (“SMT”) and that an individual ADM does not have the ability to unilaterally approve a request for TEI. The Director of Human Resources puts TEI requests forward two to three times per year for consideration by the SMT, who then determine whether the TEI request supports transformation in the Ministry. Generally, the requests are considered by occupational category on an anonymized basis.

12Mr. Augruso explained that Ms. Anich’s request would have been considered with the other requests from Early Resolution Officers (“ERO’s”). No transformation was anticipated in 2016 when the ERO requests for TEI were considered; to the contrary, the caseload was growing, and a backlog had developed. Since the Ministry could not accommodate declining staffing, the SMT did not approve any TEI requests submitted by ERO’s, including that of Ms. Anich.

13Mr. Augruso testified that the SMT did not consider an applicant’s eligibility to retire when they reviewed requests for TEI. He further stated that, after speaking with Mr. Martin, he did not advocate for approval of Ms. Anich’s TEI request at the next meeting for the same reason that her request was not initially approved: there was no ongoing transformation in her area and he could not afford to lose another ERO.

14On cross-examination Mr. Martin did not recall Mr. Augruso saying or suggesting that his hands were tied or that individual TEI decisions were not his to make. He was also adamant that Mr. Augruso said that he could not approve Ms. Anich’s request because she was eligible to retire and that he did not merely say that while he could not approve Ms. Anich’s request for TEI, at least she could still retire.

Appendix 46

15Appendix 46 sets out the parties’ agreement to a Transition Exit Initiative and provides as follows (Revised October 30, 2015):

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 sole 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.

iii. The Employer will consider whether employees are on the TEI list when making surplus decisions.

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 within the same workplace, 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. In the event that an employee who exits the OPS under the TEI is re-appointed to a position in the OPS within 24 months, the employee will repay to the Minister of Finance the six (6) month lump sum paid out under paragraph 5 above.

7. An employee who exits under the TEI and is re-appointed to any position in the OPS may elect to repay the TEI payment of one week per year of continuous service or its equivalent period of salary continuance, thereby restoring entitlement to termination payments under Article 53 or 78 (Termination Payments), as applicable, for the period of continuous service represented by the payment.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. The parties recognise that the approval of exits from the Ontario Public Service under TEI is the exclusive right of the employer.

14. This MOA forms part of the collective agreement.

15. This Memorandum expires upon expiry of the Collective Agreement.

Submissions

16The Union submitted that management considered the Grievor’s retirement status when it determined whether to grant her request for TEI and that Mr. Augruso decided not to pursue a reconsideration of her request because she was eligible to retire. In the Union’s submission, retirement eligibility is irrelevant to whether a TEI request should be granted and amounts to age discrimination if considered: AMAPCEO (Connell) v. Ministry of Health and Long-Term Care, 2018 CanLII 129444 (ON GSB) (Anderson); MacKinnon v. Celtach Plastics Ltd., 2012 HRTO 2372 (Keene); Deane v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1863 (Cook); Legros v. Treasury Board (Canada Border Services Agency), 2017 FPSLREB 32 (Perrault).

17The Union relies on the evidence of Neil Martin that Peter Augruso advised him that he could not grant the Grievor’s TEI request because she was eligible to retire. Counsel argued that Mr. Martin offered a clear and direct recollection of the conversation with Mr. Augruso and that his version should be preferred for the following reasons: he initiated the conversation; he had nothing to gain from his evidence; and he clearly rejected Mr. Augruso’s version of events.

18The Union further submitted that management has broad discretion when reviewing requests for TEI: OPSEU (Koeslag et al-Union) and Treasury Board Secretariat (2016), GSB#2013-1446 (Devins). Therefore, it is important to hold it accountable and ensure that their discretion is exercised properly, without consideration of irrelevant or discriminatory factors. In the Union’s submission, many applicants for TEI are eligible to retire; whether their retirement is a relevant factor in the decision to grant their request for TEI looms large. Consequently, this issue is important to the parties and will inevitably require a decision from the Board.

19The Employer submitted that this was a simple case, both factually and legally. There was uncontroverted evidence that there was no transformation in the Ministry in 2016-2017. Managers at that time were looking to expand their complement, in particular in the Grievor’s area, and the Grievor’s position was filled after she retired. Nonetheless, the Union has maintained that the Human Rights Code or the Collective Agreement was violated when Mr. Augruso failed to do a favour when asked for one by Mr. Martin. Counsel for the Employer submitted that there are no cases where grievances have been allowed for unfulfilled favours, where the concept of the proper exercise of discretion does not apply.

20The Employer further argued that Mr. Augruso was not in a position to unilaterally reconsider the Grievor’s TEI request. He would have had to bring it back to the SMT for reconsideration, however nothing had changed: there was still no transformation and no new information or arguments were provided by Mr. Martin to support Ms. Anich’s request. In the Employer’s submission, Mr. Augruso could not approve the Grievor’s request on his own and there was no basis on which he could take the matter back to the SMT.

21In any event, in the Employer’s submission, Mr. Augruso’s testimony was more credible. Counsel argued that Mr. Martin showed excessive confidence in his own recollection of what he was told by Mr. Augruso. Mr. Augruso, on the other hand, readily acknowledged the frailty of his own memory, but was consistent in his assertion that he could not grant the TEI on his own and there was no basis to go back to the SMT.

22Counsel for the Employer recognised that Mr. Martin and Mr. Augruso may have walked away from their conversation with a different understanding of what was said. Nonetheless, in the Employer’s submission, at its highest, the Union’s evidence would only amount to the suggestion that Mr. Augruso should have taken the Grievor’s request back to the SMT. The failure to take it back as a favor, however, does not breach the collective agreement or the Human Rights Code. There was no differential treatment in this case; Ms. Anich was ultimately treated the same way as all EROs who requested TEI in that timeframe.

23In reply, the Union acknowledged that there was no direct evidence that the Grievor’s eligibility to retire was considered in the first instance by the SMT, however, Mr. Augruso’s comment to Mr. Martin cries out for an explanation as to whether management considers it a material consideration in granting TEI. Counsel further suggested that discrimination is often hidden, so that evidence is difficult to obtain. In the Union’s submissions there is no doubt that Ms. Anich’s eligibility to retire was raised in the conversation between Mr. Martin and Mr. Augruso and inevitably led to concerns by both the employee and the Union that impermissible factors were considered in denying Ms. Anich’s TEI request.

Analysis

24I agree with the Union’s submission that the ordinary principles for the proper exercise of discretion apply when the Employer considers requests for TEI. Management is entitled to approve requests for TEI when, in its opinion, an employee’s exit would support transformation of the OPS: OPSEU (Koeslag et al-Union) and Treasury Board Secretariat (2016), GSB#2013-1446 (Devins). Despite their broad discretion, the Employer cannot base their decision on irrelevant considerations or otherwise in violation of the principles set out in Re Kuyntjes, GSB #513/84 (Verity).

25I also accept, as a general rule, that eligibility to retire can be regarded as a proxy for age and consideration of an employee’s retirement status might be an improper exercise of discretion or a violation of the Ontario Human Rights Code. However, in this case, I am not persuaded that it was.

26The Union’s case rests entirely on Mr. Martin’s assertion that Mr. Augruso told him that he could not help Ms. Anich or grant her TEI request because she was eligible to retire. No other basis to review management’s decision was put forward by the Union and counsel acknowledged that the Union’s case must stand or fall on what I find Mr. Augruso said to Mr. Martin.

27The Union argued that Mr. Augruso’s admission established that, at a minimum, he considered the Grievor’s retirement status when he failed to take further action on Mr. Martin’s request to move forward with Ms. Anich’s request for TEI. The Union also maintained that it was fair to infer from Mr. Augruso’s comment, as recounted by Mr. Martin, that the SMT had taken into account the Grievor’s eligibility to retire when it initially considered her request for TEI.

28Regardless of what Mr. Augruso told Mr. Martin, there were a number of undisputed facts surrounding the decision-making process itself that I consider highly relevant:

1. Individual ADMs, including Mr. Augruso, do not have the authority to unilaterally grant or reconsider a request for TEI;

2. TEI requests are considered by occupational category, a few times per year by the Senior Management Team;

3. There was no transformation and no plan to reduce the total complement of EROs when the Grievor’s request for TEI was considered;

4. No ERO’s were approved for TEI in 2016 and Ms. Anich’s position was posted and filled after she retired;

5. Mr. Martin asked Mr. Augruso for his help getting the Grievor’s TEI request approved. The request was in the nature of a “favour” and Mr. Martin did not offer any additional factors or information that could be considered. Mr. Augruso declined and did not pursue the matter further.

29Taking all of these facts into account, regardless of what I find Mr. Augruso said to Mr. Martin, I do not consider his statement alone as sufficient to support an inference that Ms. Anich’s retirement status was considered by the SMT when it initially considered her request for TEI.

30Under Appendix 46, TEI is intended for circumstances where an employee’s exit will support the transformation of the OPS. The parties agreed that there was no ongoing transformation that affected EROs when Ms. Anich applied for TEI. To the contrary, there was a backlog of work, management was interested in increasing the complement of ERO’s, with no EROs approved for early exit in the year that the Grievor applied. On this basis alone, the Union’s position that the Grievor was denied TEI because she was eligible for retirement is significantly undermined. On the undisputed facts, there was no ongoing transformation that Ms. Anich’s early exit could support and therefore she did not qualify for TEI at that time.

31Moreover, management made the initial decision not to grant the Grievor’s request for TEI on an anonymous, collective basis that applied to all EROs. Even if management had a practice of considering whether an applicant was eligible to retire when they considered the individual’s request for TEI, and, to be clear there was no independent evidence that such a practice existed, there would be no need to get to the stage of individual deliberation once the SMT decided that no TEIs would be granted in the ERO occupational category. Given all of these facts, whatever Mr. Augruso said to Mr. Martin, the evidence is overwhelmingly at odds with the inference suggested by the Union.

32Turning then to whether Mr. Augruso failed to act on Mr. Martin’s request to assist Ms. Anich because she was eligible to retire. Ultimately, the issue is what Mr. Augruso considered when he declined to bring forward Ms. Anich’s request for TEI for further review. Did he refuse to help her, in part or in whole, because she was eligible to retire? Although, Mr. Martin’s testimony is critical to the Union’s case as the only evidence on which it relies, what Mr. Augruso said to Mr. Martin, or what Mr. Martin recalled him saying, is only one piece of evidence that I must consider in determining the issue before me.

33It is not surprising that some of the details of the conversation between Mr. Martin and Mr. Augruso have been lost in the mists of time. This was an off the record conversation that took place a number of years ago. Neither participant kept notes of the conversation nor otherwise documented what was said.

34While there were a number of minor variations in the witnesses’ recollections of the conversation, such as when and where the conversation took place and whether there were one or two conversations, the main point of departure was how Mr. Augruso characterised the Grievor’s eligibility to retire. Mr. Martin said that Mr. Augruso advised him that he could not reconsider or approve Ms. Anich’s because she was eligible to retire. Mr. Augruso was equally certain that he advised Mr. Martin that his hands were tied, but that at least Ms. Anich could retire and had something to fall back on.

35In my view, the small discrepancies in the witnesses’ testimony regarding the time and place of the conversation are immaterial. This was a brief, informal conversation that took place some time ago and I place no weight on the minor variations in the versions told by the two witnesses. They were both unclear about some details and equally confident and unshaken on cross examination about the key component of the conversation. I have not found that the minor details over which the witnesses disagree provide much assistance in determining what, on a balance of probabilities, is the more likely version of what Mr. Augruso said to Mr. Martin.

36Mr. Martin and Mr. Augruso agree that Ms. Anich’s eligibility to retire was mentioned in their conversation, but I do not believe that Mr. Augruso offered her eligibility to retire as the reason why he could not approve her request or move it forward. I accept his account that he raised her ability to retire only in a sympathetic way to indicate that she still had the option of leaving the OPS if that was her wish.

37The version of the conversation recounted by Mr. Augruso is again much more consistent with all of the surrounding facts. There was no ongoing transformation when the Grievor’s TEI request was first considered and no ERO’s were approved for TEI. When Mr. Martin approached Mr. Augruso there was still no transformation in the Grievor’s area and Mr. Martin did not provide any new facts or arguments in support of Ms. Anich’s request. Mr. Augruso did not have the ability to unilaterally approve a request for TEI and there was no principled basis on which Mr. Augruso could take the matter back to the SMT and expect a different result. In these circumstances, I find it highly implausible that Mr. Augruso would have offered any reason other than the obvious one for why he could not help Ms. Anich obtain a TEI.

38Moreover, unlike Mr. Martin, in giving his testimony, Mr. Augruso was not just trying to recollect what he said or what he heard someone else say. He was recalling his own motivation and reason why he was unable to provide the assistance sought. I have no doubt that Mr. Martin honestly concluded that Mr. Augruso did not help Ms. Anich because she was eligible to retire, but that does not make it so. Mr. Martin went into the conversation with the belief that the Grievor’s retirement status might have been a factor in her failure to obtain approval for TEI, and once Mr. Augruso mentioned her entitlement to an unreduced pension, in whatever context, Mr. Martin could have easily viewed this response as confirmation of his pre-existing expectation.

39The Union urged me to consider whether eligibility for retirement was ever an appropriate consideration in determining whether a TEI request should be approved. While I appreciate that the issue is of real concern to many employees, this is a weighty issue that raises complex questions of alleged discrimination and I do not think it is appropriate to consider that issue in a factual vacuum. Rendering an opinion on a hypothetical question is of limited value, there are simply too many possible variables that could be relevant to that determination. In the absence of a factual matrix, an answer on this issue would necessarily be either so vague that it would ultimately be unhelpful or run the risk of arriving at a firm conclusion that does not take into account important distinctions. Either outcome would be unwise.

40For all these reasons, I would dismiss the grievance filed by Beth Anich with respect to the non-approval of her request for a TEI package.