GSB# 2018-0110

UNION# 2018-0603-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

Alex Zamfir Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel

HEARING

July 20, October 7, November 18,19, 2020; August 25, September 21, 27, November 17, 18, December 16, 2021; August 23 and 30 2022

Decision

1This decision determines a policy grievance dated March 8, 2018, which reads:

The Union grieves that the Employer violated, and continues to violate, Collective Agreement Articles 2 (“Management Rights”), 20 (“Employment Stability”), and 32 (“Seasonal Employees”) and any other relevant articles and legislation, by failing to recall the BIO2 seasonal position in December 2017 (and thereafter) and by redistributing the work, within the same work unit, to four (4) BIO1s, at a lower pay rate

2The grievance in substance is an allegation by the union that the employer’s decision to not recall a seasonal employee Mr. Benoit Hamel was in contravention of its obligations under article 32.5.1.2 of the collective agreement, which provides:

Seasonal employees who have completed their probationary period shall only be offered employment in the same position in the following season on the basis of seniority.

3It is the union’s position that for the 2017-2018 season, instead of recalling, Mr. Hamel to the seasonal position he worked in the previous season, the employer distributed that work among three of four B101s it hired. It asserts that from November 2017 to January 2018 BIO1s, Ms. Derissa Vincentini, Mr. Aaron Craig and Mr. Jemmett Kirk performed work Mr. Hamel had performed for several seasons including the previous 2016-17 season. Mr. Hamel was left with no employment until he was ultimately recalled in January 2018.

4Mr. Hamel, as well as the BIO1s at all relevant times worked in the Forest Research and Monitoring Section of the Ontario Research Institute in Sault Ste Marie, Ontario (“The FRM Section”) in the Forest Soil and Water Program. Ms. Maureen Kershaw, as coordinator of the program, was the manager of Mr. Hamel and the BIO1s. She reported to Senior Manager, Mr. Dan Puddister. There is no dispute that Mr. Hamel had completed his probationary period, that he had seniority over the three BIO1s, and that he was ready and expected to be recalled in November 2017 as in previous years. The crux of the dispute is whether or not the work performed by the BIO1s constitutes “the same position” Mr. Hamel had performed in the previous season.

5The evidence relating to the work performed by Ms. Vincentini was filed by way of an agreed statement of fact. The other two BIO1s did not testify. The direct evidence of the two of the employer witnesses, Mr. James McLaughlin (employed in the bargaining unit position of Research Scientist) and Mr. Dan Puddister (Senior Manager of the FRM Section) was put in by way of willsay declarations, and they were cross-examined.

6The determination of this grievance requires a comparison of the duties and responsibilities of Mr. Hamel’s position with work performed by the BIO1s in the relevant period. It is agreed that in previous seasons Mr. Hamel was recalled in late November/early December to his position of Far North Specialist. The union asserts that the work performed by the BIO1s between November 2017 and Mr. Hamel’s recall in January 2018, constituted the “same position” within the meaning of article 32.5.1.1, and that Mr. Hamel had a right to be recalled in November 2017 as in previous years.

7Significant evidence was led as to whether Mr. Hamel was not recalled because of a reduction in funding for his position, whether other sources of funding were available, and whether management made sufficient effort to find alternative funding. The collective agreement obligation is on the employer (the Crown). It is not restricted to any branch of the Ministry or the Ministry. If article 32.5.1.1 entitled Mr. Hamel to be recalled, it is no defence for the employer to argue that there was no funding to comply with its collective agreement obligations. There was also evidence about who made the decision to hire the BIO1s and not to recall Mr. Hamel, and how that decision was made. The union suggested that a bargaining unit employee, Mr. McLaughlin made the effective decisions, which were merely rubber-stamped by management, or at least that management was influenced by Mr. McLaughlin’s recommendations on staffing needs, which it alleged was tainted by bad faith. Those are not material to the issue to be decided. Regardless of how the decisions of seasonal staffing for 2017-18 were made, ultimately it is the employer that has the legal obligation to comply with the collective agreement. If the work the BIO1s did does not meet the “same position” test, the employer had no legal obligation to recall him. On the other hand, if the test was met the employer would have been in breach. Therefore, it is immaterial what information the employer relied on. Evidence was led about Mr. Hamel’s expertise and experience as a scientist, as Far North Specialist; whether his work performance was satisfactory or not; and about his familiarity with the site the BIO1s worked at and the equipment and techniques they used. The employer did not assert that Mr. Hamel was not capable of doing the work done by the BIO1s . The issue anyway is not whether he was qualified and able to do that work. It is whether that work could be said to be the “same position” he had performed, within the meaning of the collective agreement. I have set out the evidence relating to the foregoing issues only to the extent that provides a context relevant to the central issue of whether the work was the same.

8The Board has interpreted and applied the predecessor collective agreement provision of the present article 35.2.1.1. It provided:

3.21.1 Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority.

9Neither counsel attached any significance to the change in the wording from “the former position” to “the same position” in the current collective agreement. In fact, this Board has held that there is no significance. See, OPSEU and MNRF, 2018-0110 (Dissanayake), dated September 25, 2019.

The Case Law

10In Re Beauvalet, 2853/92 (Gray) the issue to be determined was, “whether, as to each of those grievors, there was in 1993 a “former position” of that grievor to which he or she ought to have been recalled that year pursuant to subsection 3.21.1”. At pp. 7-9, the Board reviewed the Board’s jurisprudence.

The meanings of “position” and “former position” in similarly worded provisions of previous agreements had been considered in several GSB decisions before the parties entered into the 1992-93 collective agreement: W. Furniss, 602/86 (Slone), Brousseau, 2285/87 (Devlin), Munro and Boden, 677/188 (Fraser), Orville D. Smith, 2315/87 (Dissanayake), G. Genery, 1468/85 (Fraser), Kauffeldt, 771/89 (Wilson) and Anderson, 471/86 (Roberts). Those decisions came to these conclusions:

• The position in which an employee completes his or her probationary period may not be a seasonal employee’s only “former position.” Any position which the employee “formally occupied, by a formal appointment under the Public Service ‘Act” is a “former position” for purposes of subsection 320.2: G. Genery.

• A target position with essentially the same functions as -‘a- seasonal employee’s previous position is‘ that employee’s “former position” even if the functions of the target position are to be performed ‘elsewhere than at- the location at which the employee performed ‘them in the previous position: W. Furniss, Kczuffeldt.

• Job titles are not determinative, and minor variations in the job duties between a ‘previous position and a target position will not prevent the latter from being a “former position”, but it is insufficient that the previous and target positions fall within the same classification: Orville D. Smith.

• It is not enough for there to be an overlap of some functions of the target and previous positions, there must be a substantial correspondence in all of their core functions: Anderson, Brousseau, and Munro and Boden.

Subsection 3.21.1 provides a considerably narrower right to job security than is afforded to classified employees under Article 24 of the collective agreement. The test-under subsection 3:2-1.1 is not whether the employee claiming the right to recall to a position could easily learn to perform all the functions of that position, nor even whether the employee. is’ presently capable of performing all those functions without training. The test is whether the target position is the employee’s former position, a test which is satisfied only if the target position and a previous position of the employee are substantially similar. If there is a material difference in the job functions involved or skills required in the two positions being compared, then the two positions are not substantially similar the purpose of this test. If, for example, the functions of position A include all the functions of position B plus another material function not required in position B, then positions A and B are not substantially similar, even though the functions of position B are “included” in position A. This is so when position B is the previous position and position A, is the target position. It is also so when position A is the previous position and position B, consisting of functions included in’ A, is the target position.

11The Facts

Mr. Hamel’s “Far North Specialist” job specification includes the following:

Purpose of Position :

To work with the program scientist and partners In all components of environmental quality research by designing, developing, and implementing peat ecology in the far north studies that contribute to Improved forest management in Ontario. To provide specialized scientific and technical support to all programs within the research unit. To coordinate the research program to deliver on objectives and goals in a timely manner. To communicate results and achievements to a variety of project partners.

Duties / Responsibilities :

Specific project duties include:

• Planning, coordinating, and Integrating multiple research projects addressing forest peat ecology in the far north issues by preparing operational work plans including estimating financial, human resources, equipment requirements and making logistical arrangements; providing group leadership to field staff; monitoring expenditures to ensure approved budget allocations are not exceeded. Providing leadership and technical training to other research staff and technical field staff to perform field data collection activities. Providing leadership in the collection of quality data by preparing Quality Assurance Project Plans (QAPPs) and field sampling protocols and conducting field-based quality assurance/quality control (QA/QC) audits of program personnel.

• Assisting in the organization and expansion of cooperative research projects with clients, resource agencies and partners such as working with Industry and public service representatives in the coordination of logistics for soil and water research and development projects.

• Planning, designing, organizing and implementing scientific field studies (e.g. determining sampling design, field sampling procedures, field data collection and selecting study sites and sampling locations). Collecting new data through field studies, developing new methodologies for soil and water data collection (e.g. real­ time sensors), and obtaining existing data In electronic/digital format (e.g. Ontario Base Maps; Satellite imagery).

• Analyzing and interpreting study results; preparing data summaries, writing reports and manuscripts for publication; developing applications and supporting tools and products; designing and managing integrated

databases.

• Transferring research and development products and information produced from scientific studies to internal /external clients and partners by writing reports and technical notes, preparing and conducting presentations and workshops and leading field tours. Job requires training internal/external project and or client staff on field techniques and use of tools or applications (e.g. use of soil and water quality sampling equipment, use and application of real-time sensors).

Performing other duties as assigned, such as

• serving on appropriate internal and external committees;

• maintaining and enhancing relevant knowledge and skills through personal training and development;

• complying with the Occupational Health and Safety Act and other related legislation, standards, and management principles

• Managers have the right to assign additional duties.

12The positions occupied by the three BIO1s were classified as Biologist1 and titled “Soil and Water Project Biologist”. It included the following:

Purpose of Position

To provide project assistance to conduct literature synthesis for the soil and water program’s commitment to the State of the Forest Report Criteria 3 and 4. To conduct data analyses and syntheses for water qualify, fish habitat, and nitrogen, sulphur, and water cycling with the solid and water components as the key indicators. Top work with lead scientist to produce a document defining a strategy for nitrogen, sulphur, and water cycling that will be sued for reporting on the health of forests in the Area of the Undertaking. To produce a working document highlighting these objectives and results from the literature reviews and syntheses.

Duties/Responsibilities (the individual will perform the following tasks)

Specific project duties include:

• Conduct literature and database searches to document long-germ trends in (i) nitrogen and sulphur deposition and nitrate export to surface waters and (ii) water cycle indicators identified from an OFRI workshop with a focus on the Area of the Undertaking for the 2006 State of Forest Report.

• Summarize compliance reports for water qualify and fish habitat indicators.

• Work collaboratively with scientists at OFRI, CNFER, Watershed Science Centre and Trent University to define specific indicators and/or their proxies to use for the Nitrogen and Sulphur Cycling and Water Cycle Elements to include in the 2011 State of Forest Report.

Provides Technical transfer by:

• Summarizing, synthesizing, and preparing reports for 2006 State of Forest Report.

Managers have the right to assign additional duties.

13Information set out in job specifications are not determinative of the work actually performed by the incumbents. In this case it is particularly so, since in both job specifications management has reserved the right to assign “additional duties”. Also, although set out in the job specifications, an incumbent may not have actually performed the specified duties in the period under review in this case. Whether a position which was the same or substantially similar to Mr. Hamel’s position, depends on the evidence as to the duties actually performed by Mr. Hamel and the BIO1 employees in the relevant periods. The parties filed the following agreed facts on the work performed by each of the three BIO1s.

Work performed by Derissa Vincentini

1. Derissa Vincentini commenced employment with the Ministry of Natural

Resources and Forestry on September 18, 2017, as a Biologist 1 within the Science and Research Branch, located in Sault Ste. Marie.

2.Derissa was assigned responsibilities to:

a. Assemble data sets from continuous measurement of water pressure and barometric pressure in two long-term peatland research sites located in the White River Forest Management Unit.

b. Develop methods to calculate water table levels in the two peatlands using data in (a) above.

c. Calculate descriptive statistics and hypothesis testing of water table level about weather and peatland conditions.

3. At the end of October / beginning of November Derissa Vincentini and Madison McCaig were assigned to assist with a field project.

a. The field assignment was from Monday, October 30, 2017 to Wednesday, November 1,2017.

b. Derissa Vincentini and Madison Derissa Vincentini and Madison McCaig were sent to White River to assist with measuring water table depths, collecting water samples, carbon dioxide fluxes, and collect samples from litter traps.

c. This field experience was organized as a learning and development opportunity for Derissa Vincentini and Madison McCaig. Equivalent work can be completed by a crew of 2 – 4 staff: Derissa Vincentini and Madison McCaig were added staff.

d. During the period of the field assignment (October 30 to November 1, 2017) Derissa Vincentini and Madison McCaig observed/assisted field staff with typical shared field activities, including carrying equipment, measuring depth of piezometers and wells, recording data (e.g., water depth, chemistry); retrieving levelloggers/buttons, collecting gas samples, and/or forest floor/litter samples.

4. Commencing November 6, 2017, Derissa Vincentini was assigned to perform data correction / compensation by collating data from text data outputs from approximately 20 levelloggers at the White River, Ontario site.

a. The levelloggers obtained measurements for approximately six (6) month periods measured at intervals of 15 minutes covering a period from 2003 to 2017.

b. The data obtained by levelloggers measures ground water levels, as well as temperature, within a cylindrical tube known as a piezometer installed in two peat lands at the White River, Ontario study site.

c. Derissa Vincentini was assigned to:

i. Collate data from text to excel format at the White River site;

ii. Compensate/correct the data to account for pressure sensor drift, well height above ground/altitude, as well as the influence of barometric pressure on water levels by using data obtained from a companion sensor at the White River site.

UNION EVIDENCE

Evidence in-Chief of Mr. Mark Crofts

14Mr. Mark Crofts, a Senior Research Technician employed in the FRM Section, at the relevant time was the Vice-President of the Local Union. He testified that he was familiar with seasonal employees in the FRM section, particularly because of as union Vice-President. He testified that seasonal employees had “recurring employment status and seniority rights” under the collective agreement. If at all possible, a seasonal employee is scheduled for 42 weeks each season. He said that it became in the norm in the last 10 years that they are initially given 22-week contracts and given multiple extension contracts for short periods.

15Mr. Crofts testified that although Mr. Hamel was also a seasonal employee, his season was different. Typically he was recalled in November or early December. It was “almost guaranteed” that each year he would be recalled in November because of the priority the employer placed on his work. He explained that most of Mr. Hamel’s work was “in the Ontario Far North, the Hudson’s Bay Lowlands”. Initially the work of the FRM Section in the Hudson’s Bay Lowlands was limited to collecting peat core samples and having it analyzed in the laboratory. Then the work turned to collecting samples from permanently frozen peat using different tools and techniques, and installation of environment monitoring equipment on the peat, and sending data to the laboratory. The work also included application of hydrology to determine the water stream flow and volume of water, before approving development, such as mines, rail, or access roads in the region.

16Mr. Crofts testified that on many occasions he worked alongside Mr. Hamel, but became familiar with what Mr. Hamel did mostly through daily conversation as a team member, and attending meetings. He had seen maps Mr. Hamel produced. Mr. Hamel had responsibility to select and procure tools to do the peat sampling, to book a Ministry helicopter, and to get safety documents prepared. He testified that Mr. Hamel “had a role in staffing fixed-terms and students for the peat field season, to get employees from other branches to help us, and for liaising with First Nations”. He said that Mr. Hamel “took care of the first line of the budget which was tens of thousands of dollars and got research permits for sites.”

17Mr. Crofts testified that Mr. Hamel was responsible for procuring different sensors to monitor the environment. The data from the sensors are logged and sent via satellite to the office in Sault Ste Marie. Since it was cheaper, Mr. Hamel bought parts and assembled the environment monitoring station, rather than buying it. He chose alternative places to install the stations. Mr. Crofts said that he had worked with Mr. Hamel, installing all three types of stations. – Perma Frost Bore Hole, Peat monitoring and stream flow. He said that the data sent by satellite to the office are stored in two different data bases to be organized and quality controlled. Mr. Hamel built those data bases.

18Mr. Crofts testified that in the non-field season between approximately May and November, Mr. Hamel had to study new challenges in the next season posed by changes in the program objectives, and figure out how to budget it, how to collaborate with others, and what tools and training etc. would be required. He managed the quality of the data collected, checked for anomalies, and returned defective sensors to the manufacturer to be fixed. Mr. Hamel organized paper tally sheets, transferred data into an electronic data base and put photographs and samples into an inventory. He prepared the samples, sub-divided them for laboratory analysis, and ensured that the integrity of the samples is maintained. He then had meetings with others in the section to plan for the next season with new staff and new activity. Asked how much of Mr. Hamel’s work outside the field season data analysis and quality control was, Mr. Crofts said that depending on the data the section had, it could be 1/4 to 1/3 of his work. Referring to a Ministry document “FRM Section Training Standard for cutting frozen peat in a walk-in cooler using a horizontal band saw”, Mr. Crofts stated that he had a role in creating it and in revising it several times, and that Mr. Hamel also had a similar role, “perhaps to a lesser degree”.

19Union counsel asked Mr. Crofts whether he was aware of the three BIO1s “ever doing work previously done by Mr. Hamel”. He said that he did not work alongside any of them, but just through “conversation and chatter”, he knew Ms. Vincentini was working on level logger data, that Mr. Kirk was doing some GIS work, and that while passing by he once observed Mr. Craig sectioning some peat or perma frost cores.

20Mr. Crofts testified that he was aware that there was some uncertainty whether Mr. Hamel would be recalled for the 2017-18 season. He said, “It didn’t sound he will be”. He was therefore surprised that there was work for four BIO1s in the same period. He was concerned because some of the work BIO1s were doing seemed to him as work Mr. Hamel did. Asked what that work was, Mr. Crofts said that the GIS, sectioning of peat, and level logger work Mr. Hamel had done, and added that the equipment used up North seemed very analogous.

21Mr. Crofts testified that by early January 2018, Mr. Hamel’s had not been recalled. On January 22, 2018, he wrote to Mr. Puddister requesting a meeting to discuss Mr. Hamel’s situation, but was declined. In February 2018, Mr. Puddister was away, and Ms. Kershaw was in charge of the FRM Section. The union sought a meeting with her. Initially Ms. Kershaw resisted, stating that she could not discuss an employee’s contract rights without that employee present. However, on February 8, 2018, at 12:52 p.m., Ms. Kershaw emailed him agreeing to meet “immediately after lunch for 15 minutes just after 1:00 p.m.” The union asked for a later time, stating that eight minutes notice was not enough to have everyone attend. No meeting took place.

Cross - Examination of Mr. Crofts

22Mr. Crofts agreed that Mr. McLaughlin was a bargaining unit employee employed as the Water and Soil Research Scientist in the FRM section, and that Mr. Hamel did his work at Far North under Mr. McLaughlin .

23Counsel asked Mr. Crofts what exactly he personally observed Mr. Hamel do using GIS mapping tools. He replied, “I would’ve seen some maps he produced, would’ve heard about what he does at staff meetings, and in conversation with others”. He said that he did not see Mr. Hamel work with GIS. Counsel asked Mr. Crofts whether he had personally observed Mr. Hamel do QAQC work. He replied, “I saw the product he did. Occasionally we’d sit down and look at data. I may have had questions to him about the data, not daily, but it did happen”. Mr. Crofts agreed that he did not observe Mr. Hamel managing data or develop Peat Core or Permafrost data bases, but said “I’ve sat with him on several occasions when he was trouble shooting the data bases. He said that the trouble shooting Mr. Hamel did was “way over my head”, but Mr. Hamel knew how to go in and make corrections needed to fix problems.

24Mr. Crofts was asked how he knew about the work each of the three BIOs performed during the relevant period. He said that he did not personally observe Ms. Vincentini working. However, in late 2017, Ms. Vincentini asked him some questions about the history of the site from which some data was obtained. From that he inferred that she was doing QAQC work on that data. He agreed that various employees worked with that data set over the years, and that they also asked him questions about the data they were working with. Mr. Crofts was asked what he observed Mr. Kirk do with GIS. He testified that he did not observe anything. His knowledge about Mr. Kirk’s work was derived from “chit-chats and water- cooler type” conversations with him, about what he was working on. He added that product developed by staff is showcased at staff meetings, and sometimes set out in emails and displayed on walls. He got some insight into what Mr. Kirk was doing from all of these. Mr. Crofts testified that in December 2017, he saw “a long-time seasonal”, Mr. John Rolston and Mr. Craig sectioning some peat core.

25Employer counsel put to Mr. Crofts that it was the work he testified about what the three BIOs did, that led him to file the policy grievance. He replied, “primarily as a union, we had information from Mr. Hamel, and at staff meetings about the section’s future work plans. Overall it gave us the sense that there was a workload at the time. The employee with the most seniority should’ve been offered that work.” Counsel asked, “So your concern was that work Mr. Hamel could do was available?” He replied, “We were being told there was no work and no money. But there were four BIO1s working. That gave us a strong suggestion there was work and money at the time. If not, people with lesser seniority would’ve been laid-off or had their contracts ended”.

26Mr. Crofts testified that he could not recall any seasonal employee not being recalled in the past. The idea of recurring contracts was somehow maintained, for example by transferring the employee to a new program. However, “Mr. Hamel was told there was no money and no work, when four new employees were doing the exact or highly similar work. That’s the crux of our grievance”. He said, “I know of zero effort by management to see whether they could bundle this work now done in the building for him”. Counsel asked whether the union expected the employer to see what work is done in the building, and offer to Mr. Hamel work he was able to handle. Mr. Crofts replied that seasonal employees have seniority rights in the collective agreement. The union always understood that the employer has to offer a seasonal employee at least 8 weeks or lay-off. Mr. Puddister and Ms. Kershaw did not offer Mr. Hamel any work, while at the same time the same or substantially similar work which he had performed was being done in the building by others.

27In re-direct, Mr. Crofts was asked how he knew what Mr. Hamel and the BIO’s did in the relevant period. Mr. Crofts replied that he had very little knowledge of what work others did through personal observation.

Evidence In- Chief of Mr. Benoit Hamel

28Mr. Hamel testified that typically his season was 42 weeks, starting in November or December and ending in September the following year. He testified that as Far North Specialist he did the planning and coordination of the Far North Research Program. He was in charge of the logistics of the field work, he coordinated work with other partners in the project, and was in charge of collecting data in the field, processing that data, and storing it, so that it can be used by the scientists. He did that work “subject to” Research Scientist Mr. James McLaughlin.

29Mr. Hamel testified that his job description filed in evidence was “largely accurate”. At the start of his contract he met with Mr. McLaughlin and reviewed with him the work left from the previous season that needs to be completed. He also discussed the science objectives Mr. McLaughlin wanted to achieve in the upcoming season. He was then responsible to determine how best to achieve those objectives. He proposed plans and established an experimental design for collection of data in the field, using different equipment, including using GIS, which collects data using remote sensors and satellites, to establish field locations. Mr. Hamel also planned for procuring equipment required to ensure that all equipment is there before going out to the field.

30Mr. Hamel testified that in addition to the planning and procurement work, he had to organize and do some quality control work and process data, such as peat core samples collected in the previous season, before submitting them to the laboratory for analysing. He did that work himself and also supervised other staff do it. Mr. Hamel said that he was also in charge of coordinating with the laboratory for submitting samples in the upcoming year for clinical and physical analysis. He estimated all the logistical and travel costs, and proposed the human resources that would be needed for the various duties.

31Mr. Hamel testified that he had to ensure that health and safety training is in place, to do some bench testing on any field techniques to be used in the field in the Far North, review the staff budget, decide where to store the data, and ensure that the IT infrastructure is in place to preserve the data. He also initiated the Standard Operating Procedure for processing peat core and for the management of the Standard Operating procedure for the Meteorological Weather Station.

32Mr. Hamel testified that he then established dates for the staff to meet weekly, bi-weekly, or monthly during the season to review progress. He designated who was in charge of health and safety in the field, and ensured all staff have everything required to go out to the field. He organized the logistics for doing the field work; found efficient ways to travel; estimated the number of hours a helicopter would be required for; finalized the accommodation and bush meal needs; and established the rules for team members. Then he went out to the field and started on the work. Referring to a 38-page document titled “OFRILS Standard Operating Procedure” filed in evidence, Mr. Hamel testified that he drafted it, and his proposal that it be used as the procedure to process was implemented.

33Mr. Hamel testified that it was hard for him to draw a line between the White River and Far North sites, because White River was used as a bench test for the work at Far North. The techniques he used at Far North were not used at White River. However, “the physics” at both sites was similar. He stated that he had visited the White River site 4 or 5 times, and was involved in installing the level loggers and setting up sensors. A couple of times he also looked at some of the data collected by the level logger. Once he noted some glitches in the data from sensors in the well at the White River site. Using his survey equipment, he was able to help Mr. McLaughlin identify the location of the sensors in the well.

34Mr. Hamel testified that while he assisted team members in the installation of level loggers at White River, he was not involved in the study itself. In contrast, at Far North he was in charge of the installation of all digital equipment. At White River data was collected manually, while it was done electronically in Far North. In Far North the QAQC work involved manually reviewing and formatting numerous files and spread sheets. However, at both sites “the same kind approaches and methods were used”. He said that while there were different variables, the process at both sites was “more or less the same”.

Cross-Examination of Mr. Hamel

35Mr. Hamel testified that at Far North, because of his greater knowledge and experience, he gave other staff direction, and also assisted with the actual processing of peat cores. He agreed that processing of cores was work that was shared by many employees. Employer counsel asked how much of his time in a season was spent on collection and processing of peat core from Far North. Mr. Hamel replied, “may be a month. May be less. It depends on how much core we had received in the previous year”. Counsel put to him that it was not one of his “major job duties”. Mr. Hamel replied, “I guess so. One month out of ten months can be considered a small part of it”.

36Counsel put to Mr. Hamel that he used the GIS only for the purpose identifying field sites in the Far North. He replied that he would say it went beyond that. He said, “we had to select random sample locations. Using GIS for that purpose, I produced a summary of land cover classifications such as open bog, swamp, water”. He added that on his own initiative, he also used sensor imagery to show Mr. McLaughlin the impact of fire disturbance on the carbon pool and cycle over the area. Counsel put to Mr. Hamel that the GIS work he described were “not part of your regular job duties”. He replied, “I don’t think so. But it was part of my duty to bring data and information to the program. If field work like processing of peat core was 1/10th of my time, GIS could be 1/5th. It was not the most important investment of my time, but I think it was an important one.”

37Mr. Hamel described in detail the work he did in collaboration with the Ministry of the Environment, the Ministry of Mines and Forests and the University of Toronto.

38Mr. Hamel testified that he did QAQC of data during the same time he did the planning and procuring work for field work. Asked how much of his time was on QAQC, he said that every year the employer’s priorities changed. The time required to QAQC, building a data base, and writing a script, therefore, could vary depending on what the data was. He added, “But I’d say 20 percent of my time”.

39Mr. Hamel agreed that apart from his involvement one time installing a level logger at White River, he did very little work there. However, data from the White River level logger was part of the QAQC he did off season. Therefore, overall level loggers were not a significant part of his job. Counsel put that Mr. McLaughlin would be testifying that several times Mr. Hamel told him that he was not responsible for White River. Mr. Hamel agreed and said that he did that because he was very busy, and wanted more time to do his Far North duties.

40In re-direct, Mr. Hamel stated that at White River he was not involved in the procurement of level loggers. The level loggers at Far North were powered by the station, and the atmospheric pressure was compensated automatically. However, level loggers at both sites produced the same kind of data about the level of water.

EMPLOYER EVIDENCE

41Evidence of Mr. James McLaughlin

Mr. McLaughlin’s willsay declaration included the following at paragraphs 7 to 34:

7. A full time Biologist 2 (BIO2) has been assigned to the Forest Soil and Water Research Program since the early 2000s. Staff in this position: (1) oversees program expenditures, (2) coordinates field sampling, and (3) assists in transfer planning and report, manuscript, and proposal writing. Benoit Hamel was hired on a recurring Biologist 2 position as the Far North Specialist, which was funded by the Far North Branch. This recurring Biologist 2 position was filled to:

1procure, test, and install equipment to measure air, peat, permafrost, and stream parameters in the Far North;

2assist and coordinate site selection and field sampling in the Far North;

3conduct quality assurance/quality control analyses (QAQC) for all parameters collected in the Far North, and develop a database which may be accessed by program staff; and

4write standard operating procedures for peat and permafrost sampling and core processing for the Far North.

8. The Biologist 1 (BIO1) positions were filled as six (6)-month contracts that were funded by MNRF’s climate change and land use carbon initiatives to meet deliverables for Ontario forests, wetlands, and permafrost priorities for hydrology, carbon, and pollutants. The four (4) Biologist 1 hires brought scientific skills to the program that Benoit Hamel lacked, including statistical analyses of large data sets, report writing, and remote sensing skills.

9. The fiscal year in question is 2017/18 which coincided with approximately $250,000 in program cuts from previous years’ Far North Funding. Program adaptation to the funding cut required a change in priorities to continue informing Ontario policy regarding forests and wetlands. I designed the Far North project to understand how climate change and land use activities affects carbon storage in peatlands located in the Far North. The Land Use Carbon Initiative (“LUCI”) projects were designed to (1) understand the contribution of forested peatlands to Canada’s forest carbon reporting and (2) to understand how managed wetlands may be used to meet Canada’s commitments to the United Nations Framework for Climate Change. The climate change project was designed to understand and predict how permafrost thaw affects hydrology, carbon and pollution fluxes from land to water.

10. Four (4) Biologist 1 positions were filled to meet Forest and Soil and Water Program deliverables that were due in March of 2018 and spelled out in the Land Use Carbon Inventory managed by the Fish and Wildlife Policy Branch. These projects were independent of the work Mr. Benoit Hamel performed during his seasonal contract that ended in September 2017. Furthermore, the four (4) Biologist 1 positions were assigned different duties than what Mr. Hamel performed during his 2017 contract period. A summary of these duties is set out below.

Biologist 2 (“BIO2”): Benoit Hamel

11. Benoit Hamel was responsible for the following as Far North Specialist:

12. Field work: a. Manually measure flow rates in streams within the Ring of Fire region.

b. Install datalogging system to measure stream flow at a research site within Polar Bear Provincial Park.

13. Office work: c. Design a strategy to obtain manual streamflow measurements to support rating curve calculations to convert water depth to streamflow for 8 automated stream gauges.

d. Clean data obtained from satellite uploads for 20 remotely installed datalogging systems measuring weather, soil, and stream conditions located in the Ring of Fire, Attawapiskat River basin, Polar Bear Provincial Park, and White River Forest Management Unit.

e. Prepare standard operating protocols for collecting, cleaning, and trouble-shooting sensor or data errors in (b) above.

14. Laboratory work: f. Assist with peat sample preparation on backlogged peat samples.

15. Mr. Hamel’s position was only ever funded with Far North Branch funding. In terms of Mr. Hamel’s Far North-specific duties: g. Assigned as field lead for Far North peatlands project

h. Did not have writing skills to write technical/scientific papers (ESL)

i. Acquired satellite data but did not do any analytical work with the data

16. As Far North Specialist, Benoit Hamel’s position did not fit with new program priorities because, with the exception of the permafrost mapping project (assigned to Jemmett Kirk) for which he lacked the remote sensing analytical skills, the other projects were not focussed on the Far North.

17. Mr. Hamel occasionally assisted at White River site. Mr. Hamel did not have responsibilities for this field program as I was the lead and I was assisted by a different full time Biologist 2. The White River research site was established in 2002 to understand how forest harvesting of near-stream zones (riparian) affected stream water quality. This project was separate from the Far North peatland work, as it was focused on Ontario’s managed forest and involved sampling for greenhouse gases, groundwater and stream chemistry, and litterfall and decomposition; work Benoit Hamel never completed while employed in his recurring Biologist 2 position.

18. Benoit Hamel also made it crystal clear to me on many occasions that as the Far North Specialist, he had no responsibilities for the White River research site, which was the focus of the tasks assigned to two of the Biologist 1 positions.

19. As noted above, Mr. Hamel had some responsibilities with respect to peat sampling. However, peat sampling and laboratory processing in the Forest Soil and Water Research Program have been ongoing since 2004, with another employee, John Ralston, assigned to primarily oversee peat processing. Many staff, volunteers (i.e., students, interns), and students hired through the Student Opportunities Program assisted John Ralston during the years with this work. This has included work at or in the vicinity of White River, Poplar River First Nation, the Far North, Victor Mine, the Ring of Fire. Similarly, many staff and students have worked with level-logger data as well, and the data is often shared with universities.

Biologist 1 (“BIO1”) Positions

20. Three (3) of the four (4) following positions were short-term funded (e.g., 6-months) under the Land Use Carbon Initiative from Strategic and Indigenous Policy Branch for specific projects associated with Forest carbon and White River field study. Jemmett Kirk was hired and funded by Climate Change funds and used data from the German Space Agency to do complex post processing of satellite imagery (not just acquisition per Benoit Hamel’s job description).

Aaron Craig: Duties from April 2017-2018

21. Aaron Craig was responsible for the following in his Biologist 1 position in the time period in question:

22. Field work: a. Assist with field measurements and sample collection of groundwater and greenhouse gases at a long-term research site located in the White River Forest Management Unit.

23. Office work: b. Assemble data sets from measurements of forest physical, chemical, and biological characteristics using data obtained from the Provincial and National Forest Inventory programs, governmental reports, and peer-reviewed literature within the Area of the Undertaking. (The Area of the Undertaking is a forest management region in central and northern Ontario which includes White River but not the Far North.)

c. Conduct spatial analyses using data in (a) by applying advanced statistical methods to describe important landscape controls that can be used to separate upland and wetland forests at the forest management unit scale.

d. Develop a forest classification key to separate upland and wetland forests using data in (b) above.

e. Calculate amounts and proportions of forested wetlands across forest management units in the Area of the Undertaking using data from (a), (b), and (c) above.

24. Laboratory work: f. None.

25. Mr. Craig’s primary role related to the above-mentioned LUCI project. His primary responsibility was to conduct data analysis to “separate” upland from forested wetlands and calculate the amounts of forested wetlands in the Area of the Undertaking. By “separate”, I mean assist with developing a more accurate reading of forested wetlands for the purpose of calculating carbon – this allows for better carbon measures to assist with climate change research and policy needs. Mr. Hamel’s work had nothing to do with this or with the LUCI project generally.

Jemmett Kirk: Duties from April 2017-2018

26. Jemmett Kirk was responsible for the following in his Biologist 1 position in the time period in question:

27. Field work: a. None

28. Office work: b. Assemble data sets of measurements from satellite images and point data in the Far North for land cover, plant functional type, soil, geomorphological, and permafrost conditions across in the discontinuous and continuous permafrost zones in Ontario using advanced satellite imagery, such as Radarsat-2, Deimos, SPOT, and TanDemX satellites.

c. Conduct spatial analyses using data in (a) by applying advanced statistical methods to describe permafrost conditions in the Albany Ecodistrict, which is situated in the Far North using data in (a) above.

d. Calculate amounts and proportions in the discontinuous permafrost using data from (a) and (b) above.

e. Write a draft report that is serving to form research partnerships and grant submissions to understand current and future permafrost conditions in Ontario.

29. Mr. Kirk’s work involved advanced statistical analysis that Mr. Hamel did not do. This is called “smoothing” data, which refers to standardizing data that is applied for linear interpolations in remote sensing studies. Mr. Kirk 'smoothed' the data by applying advanced statistical analyses, such a maximum likelihood analysis. This method maximizes likelihood of the most probable distribution in the data. The point in space that maximizes the likelihood function is called the maximum likelihood estimate and is used in the interpolations. Mr. Hamel accessed remotely sensed data that previously underwent data' smoothing' by the Natural Resources Inventory Section and did not perform data 'smoothing' as part of his assigned tasks.

Derissa Vincentini: Duties from April 2017-2018

30. Derissa Vincentini was responsible for the following in her Biologist 1 position in the time period in question:

31. Field work: a. Assisted with field measurements and sample collection of groundwater and greenhouse gases at a long-term research site located in the White River Forest Management Unit.

b. Mr. Hamel never performed the functions in (a) during any of his contracts between 2009 and 2017.

32. Office work: c. Assemble data sets from continuous measurement of water pressure and barometric pressure that were obtained using level-loggers in two long-term (2003 – 2018) peatland research sites located in the White River Forest Management Unit.

d. Develop methods to calculate water table levels in the two peatlands using data in (a) above.

e. Calculate descriptive statistics and hypothesis testing of water table level about weather and peatland conditions.

f. Mr. Hamel never performed the functions in (c), (d), and (e) during his contract period of 2016–2017. Nor was Mr. Hamel ever assigned a key role in the research at the White River peatlands. He was assigned four (4) tasks to complete at White River during his contracts from 2009–2016:

i. coordinate lumber purchases and helicopter services to sling lumber into the research peatlands in 2010.

ii. Procure and install a weather station in one peatland in 2011.

iii. Procure and install a weather station in a second peatland in 2016, although this task was never completed.

iv. Assist in lumber slinging into two peatlands in 2016 as Forest Soil and Water Program commitments to an NSERC Strategic Research Partnership Grant to the University of Western Ontario (2015–2018) for which the Soil and Water Program was the key research partner. Dr. Maara Packalen, fulltime Research Biologist assigned to the program, led this task.

33. Laboratory work: None.

34. Derissa Vincentini’s had a background in forest research in Ontario which was an asset to her work at the White River site.

Cross-Examination of Mr. McLaughlin

42Mr. McLaughlin agreed that he provided leadership in the section as lead scientist, but was a bargaining unit employee. He said he was familiar with the duties and responsibilities of the staff in the program, including Mr. Hamel and the three BIO1s. He testified that the bulk of Ms. Vincentini’s duties related to QAQC data to get a picture of the water table and flow. That included assembling data sets from the White River level loggers, doing statistical analysis of the data, and manually compensating for pressure measured by the device.

43Union counsel put to Mr. McLaughlin that Mr. Hamel testified that he did the following work at White River, which is not mentioned in his description of Mr. Hamel’s work in the willsay (1) He installed level loggers; (2) Did a survey of location and elevation of level heads; (3) Retrieved data from level loggers; and (4) proposed changing the length of cables for level loggers in wells. Mr. McLaughlin agreed that one season Mr. Hamel was involved in installing the level logger at White River. He said that the survey data Mr. Hamel produced was never used because it was too scattered. He was not aware of him retrieving data from level loggers or about his proposal relating to cable lengths. Asked whether he was denying that Mr. Hamel did any of that work, Mr. McLaughlin replied, “No, but it was a very minor part of things he was supposed to do”.

44Mr. McLaughlin agreed that QAQC of data on stream flow and meteorological data transmitted electronically from Far North was part of Mr. Hamel’s responsibility as Far North Specialist. Counsel put to him that Mr. Hamel and Ms. Vincentini were doing QAQC of the same type of data. Mr. McLaughlin replied, “Yes. But the difference is, he did the QAQC of data produced electronically. Ms. Vincentini was working on the manual data from level loggers at White River”. Counsel put that whether QAQC work was done manually or automatically, the ultimate goal in both was to ensure that the data is within permissible bounds. Mr. McLaughlin replied, “yes, but the difference is when using electronic QAQC you are not going to catch all errors because the data is scattered all over.” When counsel suggested that Mr. Hamel did both manual and electronic QAQC work, Mr. McLaughlin responded, “If he did some manually, he did a poor job. A couple of times he sent data to grad students who found significant errors in the data sets”.

45Counsel put that in 2017-18, Mr. Kirk’s major task was to prepare a report delineating the perma frost coverage in the Far North. Mr. McLaughlin agreed. Counsel noted that in his willsay Mr. McLaughlin states that while Mr. Hamel acquired satellite data, he did no analysis of that data; that he only did satellite imagery to do site selection, and put to Mr. McLaughlin Mr. Hamel’s evidence about other GIS work he did, which go beyond merely acquiring satellite imagery. Mr. McLaughlin agreed that Mr. Hamel did those tasks. However, he testified in detail that what Mr. Hamel did was basic analysis by satellite imagery using programs and models already put in place by other agencies of government. He did that by simply moving and clicking on the computer with cursor pointed to the particular area. Mr. McLaughlin was cross-examined in detail about two data bases called “Trackmon Peat” and “Hudcore”. He responded that he was not familiar with them, but agreed that Mr. Hamel built the Trackmon Peat data which was primarily geared for electronic data.

46Mr. McLaughlin agreed that the afternoon session of the FRM Section staff meeting was limited to managers including Ms. Kershaw and Mr. Puddister and research scientists, and that a document authored by him, setting out challenges for the section and proposed solutions, was distributed to the attendees of the afternoon session. Mr. McLaughlin said that he wrote it to Ms. Kershaw on his own initiative to expand on his views about challenges and solutions for the program. He said that the program was facing a reduction of $ 25,000 of funding received from the Far North in the previous 3 years. He said that he identified contract staff as a challenge, because most of the program’s money was being spent on contract staff wages. The FRM Section had entered into MOUs with a number of Ontario Universities, committing to complete certain work. Therefore, he was of the view, and proposed as a solution, that graduate and post doctoral students be used to do work currently done by employees on recurring contracts. Mr. McLaughlin explained that when he identified “difficult staff” as a challenge, he was referring to staff who were not productive, not to Mr. Hamel or any particular employees.

47Mr. McLaughlin agreed that the contract staff he” chose” to retain did not include Mr. Hamel’s position, but included two or three short-term contract staff at the level of BIO1and wrote: “I chose not to recall Benoit Hamel (BIO2) for the foreseeable future, based on reduced emphasis on field work and his sub-par adaptability, interpersonal skills and judgment, as he was a liability rather than added value to the program”. Mr. McLaughlin testified about his concerns relating to Mr. Hamel’s performance in the position of Far North Specialist BIO2.

48Mr. McLaughlin agreed that the employer decided not to recall Mr. Hamel in November, and that his views about Mr. Hamel would have influenced that decision. He testified that he had previously raised his concerns about Mr. Hamel with Ms. Kershaw in the previous 2016-17 season, also talked to Mr. Hamel himself a couple of times. He insisted that his expression of concern about contract employees and difficult employees was a general one, and not targeting Mr. Hamel. He also maintained that, despite the strong language he used, he had no authority to make staffing decisions. His document was only a strong recommendation.

49In re-direct, Mr. McLaughlin testified that QAQC of data was a major focus of the program and very important when there are court challenges. He said that all staff in the program, including BIO2 staff, have done QAQC over the years. He named Mr. Crofts and Mr. John Wilson, as examples of higher ranked staff like Mr. Hamel, who have done QAQC work similar to what Ms. Vincentini did.

50Mr. McLaughlin reiterated that the QAQC work Ms. Vincentini did as a BIO1 was solely analysis of applied statistics of data from the two weather stations in White River. Mr. Hamel’s primary focus was on the Far North QAQC data, and it was an insignificant part of his job, involving data from weather stations at Far North and White River. All he did was analysis of descriptive statistics. Also, the QAQC Mr. Hamel did was automatic QAQC where any inaccurate information is automatically eliminated. Ms. Vincentini in contrast did manual QAQC of large data sets.

51Mr. McLaughlin explained that the QAQC Mr. Hamel did was basic because all data sets he used were put together by other agencies. All calculations were already done. All Mr. Hamel needed to do was click on what you want, and all statistics were in there. Asked to compare the remote sensing work Mr. Hamel did with that done by Mr. Kirk, he described in detail what he called complex analysis Mr. Kirk did including calculations and smoothing of the data. Mr. Kirk also worked with spot satellite imagery. Mr. Hamel did not do any of that. He only did the basic analysis.

52Comparing work done by Mr. Hamel with that of Mr. Craig, he said that Mr. Craig used data bases from national and provincial inventories like vegetation chemistry data. Those data bases were very different from the Trackmon Peat and Hudcore data bases Mr. Hamel worked with.

Cross-Examination of Mr. Dan Puddister

53Mr. Puddister testified that on January 5, 2018, he became aware that Mr. McLaughlin had proposed changing the direction of his program and staffing needs in anticipation of funding cutbacks, and that “he did not want to recall Mr. Hamel”. He said that at that time he had discussions about Mr. Hamel’s recall with Ms. Kershaw. She informed him that she was trying to get soft funding to be able to recall Mr. Hamel for 8 weeks. Counsel put to Mr. Puddister that in November 2017 there was no discussion about recalling him as usual in mid-November. He replied that the management team would have discussed that because the union had sought discussions on seasonal recalls. He was aware that there was discussion that it would be difficult to recall Mr. Hamel without Far North funding, so he would have likely discussed that with Ms. Kershaw. He testified that every year at the August management meeting funding issues and forecasting of staffing are discussed. At the meeting held after the August 2017 budget, the extension of base funded group 3 seasonals was discussed. Due to funding concerns, it was decided that seasonals would initially be recalled only for 22 weeks. Then attempts would be made to find savings to extend them to the usual 42 weeks.

54Mr. Puddister agreed that three BIO1s were hired in November 2017, followed by one more in December, to support Mr. Mclaughlin’s program. When counsel pointed to Mr. McLaughlin’s memo of December 2017, Mr. Puddister responded, that in that memo Mr. McLaughlin was making projections for the future based on his own opinions based on information that was “not true”. Counsel put to Mr. Puddister that the decision not to recall Mr. Hamel and to hire 4 BIO1s came to him as a “done deal”. Mr. Puddister disagreed. He said that Ms. Kershaw makes initial decisions about seasonal recalls and proposes her decisions to him. He could either approve her decision or veto it. He said that he makes the ultimate decision on seasonal recalls.

55He testified that Ms. Kershaw was able in January secure soft funding from the Climate Change Branch, and Mr. Hamel was recalled for 8 weeks. He said that was an exceptional decision made in order to meet the employer’s obligation under the collective agreement to comply with Mr. Hamel’s recall rights. He testified that management believed that it would meet its collective agreement obligation by recalling Mr. Hamel for a minimum of 8 weeks. The plan was to have Mr. Hamel do data management in the Far North in the 8 weeks starting in the latter half of January 2018. Mr. Puddister agreed that before recalling Mr. Hamel, management was aware that he had already started another job.

56In re-direct, Mr. Puddister was asked how management made decisions about Mr. Hamel. He said that from 2016 he was aware that Far North funding may be reduced. Ms. Kershaw on a few occasions raised her concern that on the one hand there was no funding for Mr. Hamel’s position, but the employer had an obligation to recall him. On advice from The Human Resources Branch, in January 2018, it was decided that Mr. Hamel will be recalled for 8 weeks.

Evidence in -Chief of Ms. Maureen Kershaw

57Ms. Kershaw held the position of Science Coordinator at the FRMS at the relevant time. Research scientists from different programs, including Mr. McLaughlin, reported to her. She reported to Mr. Puddister.

58Ms. Kershaw described the hiring of the BIO1 employees in November-December 2017. With regard to BIO1 Mr. Kirk, she testified that in April 2017 the Strategic Planning Branch decided to launch a Land Use Carbon Inventory (LUCI) program for major land users in Ontario. Once funding was obtained, a search was undertaken to select someone for a BIO1 position to complete the LUCI work, which had to be done within a short time. Mr. Kirk was selected because he had experience working with nurseries and greenhouses. Ms. Kershaw testified that the same process was followed in offering Ms. Vincentini an entry level position as a BIO1. She was known in the FRM Section, having worked for another science coordinator. Ms. Kershaw testified that the letter offering a BIO1 position to Mr. Craig went out around the same time as the others. He was willing to accept, but due to personal reasons could not start immediately. Since Mr. Craig had valuable experience, his start date was delayed to December 1st. Ms. Kershaw testified that the 3 BIO1 hired worked in the LUCI program, not the Far North. Each had a task to work on a piece of the LUCI program, and each had a deliverable date.

59Referring to an email she wrote to Mr. Hamel on January 26, 2018, informing that the priorities of the program had changed, and that Far North funding had been reduced, she said she was not certain whether that was the first time she gave Mr. Hamel indication that his recall was in doubt, but stated that she would be surprised if Mr. McLaughlin had not indicated that to Mr. Hamel earlier.

60Ms. Kershaw testified that management from all over Ontario submit requests to hire staff for approval by the Director. To obtain approval management has to show that funding for the positions is in place. When she requested approval to recall Mr. Hamel in 2017, she was unable to show funding. The Science Director and the Business Unit in responding to hiring requests consider availability of funding and the number of staff that can be “in the books”. The request to recall Mr. Hamel was not approved.

Cross- Examination of Ms. Kershaw

61Union counsel suggested that Mr. Hamel’s job entailed procuring physical samples from the field in the form of peat cores. Ms. Kershaw replied that like any other team member he may have done it. However, she added that he had a higher responsibility than that, to design the overall plan and the execution of the plan.

62Ms. Kershaw agreed that QAQC of data collected from Far North was one of Mr. Hamel’s duties. She added, however, that while Mr. Hamel controlled the Far North QAQC, he could assign another staff to do that, and did some QAQC work, among many other duties. Ms. Kershaw agreed that Mr. Hamel’s field work in the Far North was done primarily in the summer.

63Ms. Kershaw stated that she had some familiarity with the work of the three BIO1s, but not details. They worked under close supervision. Bagging/sorting soil samples was one of their main duties. She agreed that QAQC of water data was a big part of Ms. Vincentini’s job, but added that she was working on data from White River, not Far North. In contrast, Mr. Hamel’s was a more senior position. He was responsible to plan and acquire all needed equipment before going for field work in Far North. He had to write standard operating procedures for the field work because of the high probability of being audited. He also had to decide how to solve problems that arise.

64Counsel put to Ms. Kershaw that Mr. Hamel, with his experience, was capable of doing the work Ms. Vincentini did. She agreed, but explained that White River and Far North were two different studies. Ms. Vincentini was hired in early September 2017 to work on the White River study funded by LUCI. The tasks she did were not related to the Far North study, for which Mr. Hamel was hired.

65Counsel pointed out that Mr. Hamel had assisted with installation of the White River level logger, and suggested that his work was not exclusively at Far North. She testified that White River was a larger project. Data from White River was used by the LUCI, as well as by various other areas, to develop their policies and procedures. She agreed that Mr. Hamel was assigned some duties on White River, as all other members of his team were. However, the focus of his position was the Far North project.

66Ms. Kershaw agreed that Mr. Hamel was capable of doing the QAQC work Ms. Vincentini did. However, management had discussed and planned the Far North work Mr. Hamel would be assigned when recalled. He had other priority work waiting for him, had his recall been approved. That included “clean up”, that is to document the methods used, so that external groups would be able to assess the validity of data, and decide if they could use the same methods.

67Ms. Kershaw explained the process for hiring seasonal employees. She decided the staffing required for the season. She requested approval from Mr. Puddister to hire/recall the staff she determined was required. Once Mr. Pudddister gives his approval, further approval had to be obtained from the Science Director and the Business Unit. In order to get approval from them, she had to show why the positions in question are a priority, that funding for the positions had been secured, and where that funding came from. She started conversations seeking approval to recall Mr. Hamel in November/December 2017. Approval was, however, not received because at the time she could not show there was funding. As soon as approval was received in January, Mr. Hamel was offered a recall.

68Ms. Kershaw was asked whether she considered recommendations by Mr. McLaughlin in deciding not to recall Mr. Hamel, and instead hire BIO1 staff. She replied that she considered Mr. McLaughlin’s views. However, she did not have to accept them. In fact, in Mr. Hamel’s case, despite Mr. McLaughlin’s reservations about Mr. Hamel’s performance and strong view that he be not recalled at all, no decision was made to not recall him. There was work for Mr. Hamel. She always wanted to recall him, and did so as soon as funding was found, and approval given to recall him. Presenting Mr. Mclaughlin’s memo of December 2017, counsel put to her that that the language there is directory, and was not a recommendation. Ms. Kershaw disagreed.

SUBMISSIONS

Union Submissions

69Counsel submitted that this grievance turns on the meaning of the phrase “same position” in article 32.5.1.1, and its application to the facts in this case. He referred to the following paragraphs of the Board’s decision dated September 25, 2019, in deciding a preliminary “no prima facie case” motion between these same parties:

23However, I do not agree that because article 32.5.1.1 does not explicitly stipulate a particular length of the recall, as long as the employee is recalled for any period of time the employer is compliant with its obligation. That would be an unduly narrow and unreasonable interpretation of the article which would deny the seniority rights contemplated in the article. For example, the employer could recall the senior employee for a few days, even though the work of “the same position” is required for a longer period. This would defeat the purpose of article 32.5.1.1. The parties would not have intended that.

24Therefore, the issue is the meaning of “same position”. The parties advised that they were unable to find any decisions interpreting that term in article 32.5.1.1. However, they did present prior decisions of this Board considering the meaning of the term “former position” in the predecessor article in the collective agreement (hereinafter “the predecessor provision”). It read:

3.20.1 Seasonal employees who have completed their probationary period shall be offered employment in their former positions in the following season on the basis of seniority.

The parties did not argue that the change of the language from “former” to “same” to be of significance for the present purposes. I find that to be of no significance. Therefore, that case law remains relevant and instructive.

25In interpreting the term “same position” the Board must recognize that article 32.5.1.1, at least in part, is intended to give priority and a measure of job security to senior seasonal employees. In interpreting “former position” in the predecessor provision, the Board in Re Anderson, 471/86 (Roberts) wrote as follows at pp. 13-14 about the importance of seniority:

There seems to be little dispute that, in general, seniority rights constitute “one of the most important and far-reaching benefits which the trade union movement has been able to secure for its members by virtue of the collective bargaining procedure” Tung-Sol of Canada Ltd. (1964), 1964 CanLII 1021 (ON LA), 15 L.A.C. 161, 162 (Reville). In recognition of this, the Grievance Settlement Board has adopted the view laid down by judge Reville in the foregoing case that “an employee’s seniority should only be affected by very clear language in the collective agreement … and … arbitrators should construe the collective agreement with the utmost strictness whenever it is contended that an employee’s seniority has been forfeited, truncated or abridged under the relevant sections of the collective agreement”.

Citing prior decisions, Vice-Chair Roberts observed that these principles have been applied by the Board in cases under article 3.20.1, the predecessor to article 32.5.1.1.

26With those principles in mind, I turn to the issue of whether the particulars of the union are capable of establishing that the “same position” Mr. Hamel had performed in the prior seasons existed at the relevant time. In Re Furniss 602/86 (Slone) the Board was required to determine whether the grievor had completed the probationary period by working two full periods of seasonal employment of at least eight consecutive weeks each in the “same position” in the same ministry, which was a pre-requisite for recall rights under the predecessor provision. In interpreting “same position”, the Board at p. 10-11 wrote:

We do not suggest that in every case, the “position” is equivalent to a particular job title. A title is nothing more than a title, although it provides some evidence that the substance of another job is similar to the substance of another job bearing the same title. In many cases there will be little doubt as to what is a position; in other cases, it will be a factual question as to whether or not the substance of a job and the nature of the duties are sufficiently similar to be considered the same position.

27Re Kaufffeldt, 771/89 (Wilson) was also a case under the predecessor provision. The Board referred to the above noted excerpt from Re Furniss and a number of other decisions of the Board, and wrote at pp. 10-11:

I have carefully read the other two authorities referred to in Boden, namely Saunders and Nielson. Saunders deals with Section 3.18 as it relates to recall under 3.2.01. Nielsen deals with Section 3.20.2. All three cases use a comparison of the functions of the positions in question to see if they are the same or substantially similar. All agree with Furniss that job title and of course position classification are not determinative.

28In Re Orville D. Smith 2315/87 (Dissanayake), another case under the predecessor provision, at pp. 8-9 the Board wrote:

While we agree with the Furniss decision that the position need not be in the same location, we would add that it is also not necessary that for article 3.20.1. to apply the duties and responsibilities in the positions be identical. There may be numerous business and practical reasons why the duties and responsibilities in a position may change somewhat from year to year. If the Board adopts a test requiring identical duties, seasonal employees may be denied their seniority and recall rights unreasonably simply because of some minor changes in duties in the position. The reasoning of the Board in Furniss in rejecting the “same location” requirement is equally applicable here.

At p. 10 the Board wrote:

In determining whether a position is the grievor’s former position some latitude must be allowed for minor differences. In our view the appropriate test is whether or not the substance of the duties and responsibilities are sufficiently similar. This of course will be a question of fact in each case.

29In its particulars, the union does not use the words “same” to describe the work it asserts was performed by the employees with less seniority. However, at para 5 it asserts that “The employer redistributed the work traditionally performed by Benoit Hamel to the four BIO 1 positions”. That in my view, is another way of stating that the work was the same. Taken together with the submissions made, there is no doubt in my mind that the assertion was that the same work Mr. Hamel had performed in the past seasons existed and was performed by other employees who had less seniority.

30The arbitral authorities reviewed above makes it clear that “same position” (in those cases “former position”) is not a reference to a job title or classification. As stated in Re Orville B. Smith (supra) the appropriate test is whether or not the substance of the duties and responsibilities are sufficiently similar.

31The union’s particulars, that the work in question was the work Mr. Hamel had traditionally performed, if assumed to be true, is capable of meeting the test in Re Orville B. Smith. Therefore, the particulars would be capable of establishing that element necessary to substantiate the alleged violation of article 32.5.1.1 and satisfies the test in Re Couture (supra). It follows that the employer’s motion fails, and I so find.

70The union relied on four “bundles of work” the BIO1s as satisfying the “substantially similar” test. Those (1) The level logger QAQC work done by Ms. Vincentini, (2) The perma frost core processing work done by Mr. Craig, (3) The data base building which Mr. Craig did, and (4) The GIS work Mr. Kirk did. Counsel submitted that that in all past cases, in applying the legal principles, the Board was faced with facts where one other employee had done the work of the grievor’s position. The instant case is novel in that the union was asserting that the grievor’s functions were distributed among three other employees. He submitted that if the Board agrees that work of the three BIO1 employees relied upon by the union, when combined, was substantially similar to Mr. Hamel’s Far North Specialist position, the union will satisfy the test.

71Union counsel reviewed in detail the document, willsay declarations, and viva voce evidence elating to the duties performed by the BIO1 employees, and compared it to the duties Mr. Hamel performed in his position. The material evidence in that regard is set out in some detail in this decision.

72Counsel noted that the bundles of work in question were performed by the BIO1 employees in the same period, starting in November, the same period when Mr. Hamel would normally have been recalled. This season Mr. Hamel was not recalled, and the BIO1s did that work instead.

73Counsel submitted that it was “open to the employer” to recall Mr. Hamel in November as usual, by combining the many tasks the BIO1s did, including QAQC of level logger data, the peat core processing, the data base building work, and the GIS work, which the BIO1s did. That work was similar to work Mr. Hamel had done. He pointed out that Mr. Hamel was familiar with the work the BIO1s did at the White River site. He had gone out to that site several times to work and had in fact installed level loggers there. Counsel submitted that the Board should conclude that the work the BIO1s did, and work Mr. Hamel did were substantially similar despite some differences.

74He said that the grievance is about seniority rights. Therefore, it must be interpreted broadly to protect the seniority of Mr. Hamel, who was left with no employment, while employees with significantly less seniority were doing work similar to what he had done. Counsel submitted that such a broad is warranted by the long-standing and often followed decision in Tung-Sol of Canada Ltd.. He urged the Board not to follow the approach in Re Beauvalet, (supra), and prefer the recognition of the importance of seniority in Re Tung-Sol. Counsel urged the Board to uphold the policy grievance.

Employer Submissions

75Employer counsel submitted that the job specification for Mr. Hamel’s Far North Specialist position which he agreed was largely accurate, clearly shows that Mr. Hamel was the “field lead” for the Far North Research program. The evidence of the employer, as well as Mr. Hamel’s own evidence, was consistent that his was a leadership role.

76Counsel agreed that there was evidence there was some superficial overlap between the work of the BIO1 employees, and Mr. Hamel’s duties as Far North Specialist. He submitted that this is not sufficient to establish that the BIO1 employees did duties substantially similar to duties of Mr. Hamel’s position. There was no evidence that the BIO1s did any of the core duties of Mr. Hamel’s position.

77Counsel submitted that the evidence was that QAQC data done by Ms. Vincentini, and the GIS work done by Mr. Kirk was different qualitatively than the QAQC and GIS work Mr. Hamel had done. Also the evidence was that much of that kind of work done by Mr. Hamel was done also by numerous employees across the program. He pointed out that both the BIO1 and BIO2 job specifications state that management has the right to assign “other duties”, which are incidental. Counsel submitted that when the legal principles that govern the meaning of “same position” as established in the case law are applied to the facts of this case, which are not in dispute in any significant aspect, the grievance must fail.

78Reviewing the “purpose of position” set out in the Far North Specialist job description(supra), counsel submitted that it is clear that is a specialized position working at a high level on the Far North program. He contrasted the BIO1 job description with Mr. Hamel’s. The purpose of the BIO1 position is to “provide project assistance” for specific tasks for different research programs. Unlike the Far North Specialist, none of the BIO1 employees had any leadership role. The evidence is uncontradicted that their positions were “entry level”, while Mr. Hamel’s was at a higher level.

79Counsel pointed to Mr. Craft’s evidence that the seniority of Mr. Hamel drove the filing of this policy grievance. He testified that the employer made no effort to see whether Mr. Hamel could handle the work going on in the building. Counsel argued that the collective agreement does not give seasonal employees priority recall rights to do any work they could handle. The entitlement is only where the same or substantially same work is being done.

80Counsel highlighted that the evidence established the following as core duties performed by Mr. Hamel.

• He coordinated the research program with the Research Scientist.

• He was very involved in planning the program.

• He coordinated with various partners.

• He was “in charge” of collecting data in the Far North.

• He met with the Research Scientist at the start of the season and with him planned the program, its objectives.

• He discussed the budget, the experiment design, financial and human resources.

• He was responsible for equipment acquiring, logistics

• He ensured that health and safety training is in place.

• He was responsible to ensure that all equipment taken for work in the Far North is in good condition because there were no facilities up north to fix equipment.

• He also created the standard operating procedures for processing peat cores, and for managing of ecological and environmental weather stations.

81Counsel submitted that the union led no evidence that the BIO1 employees did any of the foregoing duties at all. Mr. McLaughlin’s evidence about Mr. Hamel’s duties was largely consistent with Mr. Hamel’s own evidence. Both testified that Mr. Hamel’s main responsibility was for the Far North site. Mr. Hamel testified that he had gone up to the White River site 4 to 5 times and did a few tasks. He said he could not recall what specifically he did, except that once he assisted and was involved in installing level loggers. He agreed that he was not responsible for that installation work, but only assisted, and that he did very little else at White River.

82Counsel pointed out that Mr. Hamel agreed that he himself told Mr. McLaughlin several times that he was not responsible for work at White River. Mr. Hamel explained in cross examination that he said something along those lines to Mr. McLaughlin because he was too busy with Far North work.

83Counsel submitted that it is clear that there is no evidence at all, and the union did not even assert, that the BIO1 employees did any of the leadership roles Mr. Hamel had with respect to the Far North Research Program. He was the “field load”. None of the BIO1 employees had a leadership role. Also the union did not dispute that an important part of Mr. Hamel’s job was planning the field activities, projects, and research at Far North site and to prepare the study design. Counsel submitted that the leadership role and planning responsibilities were core duties of Mr. Hamel’s position, which were not done by the BIO1 employees. He argued that the insignificant overlap of duties the union relies of is insufficient to meet the “substantially similar” test. He urged the Board to dismiss the grievance.

84In Reply Submissions, union counsel, reiterated that labels like LUCI attached to projects are irrelevant. It is the work that matters. Mr. Hamel was familiar with the type of work that went on in relation to various research projects. He said that in any event it is clear that, even if numerous employees in the program did data QAQC work, it was also part of Mr. Hamel’s job. Ms. Kershaw confirmed that in her testimony. Although the data Mr. Hamel worked with was data from a different source than White River, he was familiar with White River having worked there several times. The data he did QAQC was of the same type as data from White River.

85Counsel stated that employer counsel glossed over the “timing issue”. The evidence is undisputed that Mr. Hamel did non-field duties in November and December, prior to the winter. In November and December Mr. Hamel did his office work in the same building in Sault Ste Marie, where the BIO1 employees also worked in the same period.

86Counsel distinguished the decision in Re Beauvalet (supra). There the Board dismissed the grievance because the two jobs being were markedly different. He said that in contrast, Mr. Hamel worked with the same material, same techniques and methods, and similar data, as the BIO1s did.

87Counsel submitted that none of the authorities relied on by the employer had the undisputed fact here, that the BIO1 employees were doing QAQC work in November-December 2017 in the office in Sault Ste Marie, in the same period. Mr. Hamel would have worked in the same building performing non-field work, including data QAQC.

88Finally, counsel again stressed the importance of the Tung-Sol principle, and submitted that the Board ought to find substantial similarity of duties, and uphold the grievance.

DECISION

89The authorities have established the test to be, whether the duties and responsibilities of the position of the grievor and those of the targeted positions, were “substantially similar”. The onus to satisfy that test is on the union. It is also well established that job titles or labels attached to projects, such as LUCI work, Far North work or White River work are not significant. Also, while the location where work is done is a factor that may be considered in comparing similarity of positions, it is not a significant factor. While duties and responsibilities of the positions to be compared need not be identical, they must be substantially similar. I will not review the submissions on the applicable legal principles by either counsel because there was no dispute in that regard. I will focus on their submissions on the application of those principles to the evidence in this case.

90In urging the Board to uphold the grievance the union placed significant reliance on the decision in Tung-Sol. As counsel pointed out arbitrators in general, and this Board in particular, have consistently approved and applied the principle established in that decision. I agree. However, it is important to examine what principle was established in Tung-Sol. It does not establish a principle that employers covered by a collective agreement are obligated to give priority on the basis of seniority whenever it exercises its management rights. That obligation arises only if, and only to the extent, the collective agreement imposes such an obligation. Tung-Sol established a rule of interpretation to the effect that where a collective agreement provides priority on the basis of seniority, that provision ought to be interpreted strictly to give effect to the seniority rights agreed to between the parties. It was open to the Board to read the word “same” literally and give it the dictionary meaning “identical” (Webster’s New Dictionary 1994). However, it did not do so. In the authorities reviewed above it has interpreted the article broadly to enforce seniority rights in a number of ways. Most importantly, applying Tung-Sol, it has held that positions would be the same, if the duties and responsibilities are substantially similar. They need not be identical. Similarly it has held that job titles classifications or labels attached to work, or locations where work is performed are not, by themselves, material, if the work is substantially similar. Moreover, the Board has held that availability of funding is irrelevant. Whether or not the employer acted on the basis of incorrect advice from Human Resources Staff, whether or not it was influenced by inappropriate recommendations by a bargaining unit employee, it would not be in breach of the collective agreement if it had no collective agreement obligation to recall the employee anyway.

91The Board also finds that the fact that, unlike in the past authorities, here the senior seasonal employee’s duties were not performed by another single employee but was distributed among several employees; and the fact that that the senior seasonal employee was capable of doing the work done by other less senior employees, make no difference. The Board agrees that if the work itself was substantially similar, the article applies whether it was performed by one or several employees with less seniority. However, the ability of the employee with greater seniority to perform work done by less senior employees is irrelevant if that work does not meet the “substantially similar” test. The collective agreement does not give priority recall rights to any work performed which he was capable of doing. The work must be substantially similar. In short, given the undisputed fact that Mr. Hamel had completed probation and had greater seniority, if the work performed by the BIO1s was substantially similar to duties of Mr. Hamel in his Far North Specialist position, he would have been entitled to recall priority under article 32.5.1.1.

92The union relied on four “bundles” of work performed by three BIO1s to argue that the “substantially similar” test is satisfied. After careful consideration of the evidence, I have concluded that even on the most liberal view of that evidence, it does not meet the “substantially similar” test.

93In Re Munro/Boden 677/88 (Fraser) the Board was considering whether two bargaining unit positions, the grievor’s Resource Technician Foreman Position and the General Resource Technician Position were substantially similar. At pages 22-23 the Board wrote

TO sum up at this point, It is quite clear that the Resource Technician

Foreman's duties are included In the General, Resource Technician's duties, but that does not make them substantially the same. There must be some equivalence between the core or main duties of each position, to reach that conclusion. To take an extreme example, the General Resource Technician Is required to have a valid M.T.C. driver's licence, and one may assume that driving Ministry vehicles is an included duty under “other duties as assigned”. One would not conclude from that, however, that a job limited to driving Ministry vehicles was substantially slmllar.to a job of General Resource Technician. The included function alone is not determinative, and there must be a broader similarity when all the core functions are compared.

The two position specifications show no such similarity., There are many timber duties in the General Resource Technician job not included in the Foreman's job. Mr. John McMurray, Forest Operations Manager, Tweed district gave evidence on this. He noted that of the many timber duties found in Duty #l in the GRT position specification, the Foreman would only do the tending duty, which might, also include pest control. ..In the skills section of that specification, the Foreman does not require demonstrated experience in tree marking and timber cruising, nor a Timber Certification Course, all of which the GRT must have. The Foreman only supervises projects for which sufficient directions are given, which replace the more detailed skills and knowledge required of the GRT. In sum, a General Resource Technician can do everything a Resource Technician Foreman can do, but the reverse is not true, because the GRT position has a number of more complex duties, and requires greater skills and knowledge.

We have little difficulty in concluding on the basis of this evidence that the principal duties and core content of the General Resource Technician position are substantially more complex and involved that those of the Resource Technician Foreman, and the two jobs are not substantially similar, notwithstanding the inclusion of the functions of one job in the other, and notwithstanding the acceptability of Ms. Munro's work as a foreman for the purpose of satisfying the probationary period in Article 3.18. (Emphasis added)

94In Re Anderson, 471/86 (Roberts) the Board quoted Re Tung-Sol (supra) with approval, and noted that this Board has accepted the views expressed there about the appropriate approach when interpreting seniority provisions. In dismissing the grievance following a review of the evidence, at p. 22 the Board concluded:

“In light of the foregoing considerations, and in particular, the degree of differentiation in core functions and essential skills, the Board must conclude that the positions of Assistant Forester and Timber Technician-scaler are not “substantially similar …” (Emphasis added)

95On the evidence before me, which was largely not in dispute, the conclusion is unavoidable that Mr. Hamel’s duties as Far North Specialist and the duties performed by the three BIO1s in the relevant period were significantly different in their core duties and responsibilities. Mr. Hamel’s duties and responsibilities set out in the job description, which was consistent with the evidence led by the employer, as well as Mr. Hamel’s own evidence, establishes that there was no substantial similarity of the core duties quantitatively or qualitatively.

96The evidence is that Mr. Hamel had a leadership role. Providing leadership to other members of the team in various aspects of their work was a core duty of his job. Mr. Hamel was a very honest and candid witness. He himself used the term “supervised” in describing his role during his testimony with respect to other members of the field team. He had overall responsibilities in planning and implementing the field work to achieve the scientific and research objectives set for the program. Those were highlighted by employer counsel, and are set out at para. 81 (supra). The union did not dispute that Mr. Hamel carried out these core responsibilities, and Mr. Hamel in his testimony confirmed that he did those. Also, witnesses from both parties, including Mr. Hamel, agreed that the Far North Specialist was “in charge” of several aspect of the Far North program. His job specification envisages that it is his duty “to provide specialized scientific and technical support to all programs within the research unit”. In contrast, the BIO1 job specification does not envisage a leadership role. BIO1s had no overall responsibilities over the program, as Mr. Hamel did.

97There is no doubt that there was some overlap in Mr. Hamel’s duties and responsibilities and those of the BIO1 employees, such as collection, processing and analysis of peat core data and doing quality control on data. Both Mr. Kirk and Mr. Hamel used the satellite GIS as part of their jobs. However, the evidence is that even with regard to those functions, there was a qualitative difference in what they did. Mr. Hamel, in addition to collecting and processing peat core data, wrote the Standard Operating Procedure for doing that. His analysis and QAQC of data was basic compared to what the BIO1s did. He used GIS for very limited purposes, while use of GIS was a large part of Mr. Kirk’s job, and for different purposes.

98The most convincing evidence that causes the Board to conclude that there was no substantial similarity, however, is the clear evidence that there was no commonality between the core functions Mr. Hamel’s position and the positions of the BIO1s. In Re Munro/Boden (supra) and Re Anderson also, the Board found some overlap in the two positions being compared. However, the Board concluded that the duties were not substantially similar for the same reason. In Re Munro/Boden stated in finding no substantial similarity, “There must be some equivalence between the core or main duties of each position to reach that conclusion”. I find there is no equivalence between the core or main duties in this case also. Union counsel urged me not to follow Re Munro/Boden and the decisions cited therein on the grounds that it failed to apply the Tung-Sol principle. For the reasons I have set out, there is no conflict between the Tung-Sol principle and the Board decisions.

99The union’s concern that Mr. Hamel, despite his greater seniority, was left with no employment, while employees with less seniority were employed doing work Mr. Hamel was capable of doing, is understandable. It may also be true, as Mr. Crofts testified, that if the employer had the employer made a serious effort, it may have been able to combine the duties the BIO1s did and recall Mr. Hamel to perform those. However, the issue for the Board to decide here is not what the employer could or could not have done, or what was fair. The issue is what the collective agreement requires the employer to do. The Board’s authority is only to enforce the obligation agreed upon between the parties. It has no authority to impose on the employer additional obligations because it deems that the employer could have done it, or that it would be fairer.

100For all of the foregoing reasons, the policy grievance is hereby dismissed.