P/933/84
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
Dr. H. E. Gillies
Grievor
- and -
The Crown in Right of Ontario (Ministry of Education)
Employer
BEFORE
R.L. Jackson C.G. Simmons E.A. Black
Acting Chairman
Member
Member
FOR THE GRIEVOR
D. Harris Counsel Harris & Partners Barristers and Solicitors
FOR THE EMPLOYER
L.M. McIntosh Counsel Ministry of the Attorney General
HEARING
December 19 & 20, 1984.
FACTS
This is the grievance of Dr. Howard Gillies, of the Ministry of Education, who claims that he should be moved back into a position in the PE 5 level of the Executive Compensation Plan. At the beginning of the hearing, counsel for both the grievor and the Ministry submitted an agreed-upon statement of facts, which are set out as follows.
From September of 1976 to April of 1979, Dr. Gillies was the Director of the Professional Development Branch of the Ministry of Education, a position classified as PE 5 in the Executive Compensation Plan. As a result of a reorganization involving certain common functions and related programs of the Ministry of Education and Ministry of Colleges in 1979, Dr. Gillies’ position was abolished. Dr. Gillies was advised of this fact by the Deputy Minister of Education, Dr. H. K. Fisher, at a meeting in April of 1979 and, at the same time, was offered a position at an equivalent level, but in the London area. This offer was declined. Subsequently, Dr. Gillies was assigned to the position of Education Officer with the Regional Services Secretariat (classified at the PED 21 level and not in the Executive Compensation Plan) prior to going on fully paid educational leave in order to complete his doctorate from July 1, 1979 to September, 1980. Upon completion of his doctorate and his leave, he returned to the Education Officer position and has been there ever since. Since 1980, a number of positions classified in the executive group have become available, several of which Dr. Gillies unsuccessfully applied for. The essence of Dr. Gillies' grievance is that he should have been returned to his former classification and now is asking this Board to make such an order.
There are a number of questions with respect to jurisdiction in this case, but counsel for the Ministry agreed with the grievor's counsel that, in order to rule on the questions of jurisdiction, the Board would first have to hear the facts of the case.
A fuller account of the background of this case, as brought out in the testimony, reveals more of the complexities of the situation and is as follows. Dr. Gillies had been classified in the executive series since 1969 and in 1972, he moved from Ottawa to Toronto to assume the position of Director, Planning and Research. He claims that it was with a “gentlemen's agreement” with the then-Deputy Minister, Dr. Stuart, that move was the last one he would have to make in his career with the Ministry. This agreement was not committed to writing. In 1976, he became Director, Professional Development Branch.
In 1979, as a result of a partial reorganization of the Ministry, Dr. Gillies’ position was abolished. The Deputy Minister, Dr. H.A.K. Fisher, the “principal architect” of the reorganization, informed those affected, including the grievor, in April of 1979. At this time, Dr. Gillies was offered an equivalent level position, but in the western Ontario region, in London. Because of the gentlemen's agreement and, presumably, because he did not want to move again, Dr. Gillies declined this offer. He was then assigned to the position of Education Officer in the Regional Services Secretariat, as confirmed by letter from Dr. Fisher on June 27. The text of this letter is set out below.
PERSONAL & CONFIDENTIAL
MEMORANDUM TO: Mr. H. E. Gillies, Regional Services Secretariat,
FROM: H.K. Fisher
DATE: June 27, 1979
SUBJECT: Reassignment of duties and reclassification
Further to our discussion earlier in April regarding the Ministry's reorganization, this will confirm your decision to accept a position in the Regional Services Secretariat.
This position is classified outside the Program Executive series. Your salary, however, will be protected at your current level (max PE 5 - $45,825). This salary rate includes the April 1st Management revision, and will be retained until such time as the maximum salary of your new position (PED 21) exceeds this rate.
Should you require any further clarification, you may wish to contact Mr. A. H. Glendenning.
(H. K. Fisher
Deputy Minister)
Dr. Gillies was clearly unhappy with this turn of events and requested that he be granted educational leave to complete his doctorate. This was approved, and the conditions were set out in a letter from Dr. Fisher dated July 10.
Mr. H. E. Gillies,
Regional Services Secretariat,
Ministry of Education,
21st floor-Mowat Block
900 Day Street
Toronto, Ontario,
M7A lL2
Dear Mr. Gillies:
This will confirm that your request for leave of absence with pay for the period July 1, 1979 to May 30, 1980 has been approved. The following conditions are relevant to the approval of your request.
The leave will be granted with full salary under the conditions outlined in my memorandum of June 27, 1979.
You will be expected to assume responsibility for the cost of your tuition and books, such living expenses that may be required in your particular circumstances and all travel expenses you may incur.
You will be expected to use whatever vacation credits that otherwise would have accrued to you during the months of your leave of absence and submit regular attendance reports in the normal manner.
It is expected that your Executive Director will make such adjustments as are necessary so that a replacement for your position will not be requested.
It is understood that upon completion of your leave of absence you will return to no less a classification than you held on the date of your leaving.
Upon receipt of a letter from you accepting and confirming the above conditions, I will finalize your leave of absence with pay.
My personal best wishes to you for every success in your program.
Yours truly
(H. K. Fisher,
Deputy Minister)
Dr. Gillies' dissatisfaction with his position of Education Officer is evident in his reply to Dr. Fisher, dated July 24.
Dr. H. K. Fisher
Deputy Minister of Education
22nd Floor, Mowat Block
900 Bay Street
Toronto, Ontario
M7A 1L2
Dear Dr. Fisher:
This confirms my receipt of your letter approving my application for leave of absence with pay. It is noted that the approval period is for 11 months rather than the 12 months for which the application was made.
The conditions of the approval are also noted. It is noted that the request for support of tuition and books has been denied. I understand that “books” is a variable item that could be virtually open-ended in a program such as I have undertaken.
I wish also to acknowledge receipt of your memo of June 27, 1979 which specified the re-assignment of duties and my reclassification conditions. In this regard, my perception of the circumstances leading to this action is at variance with my understanding of the language used in paragraph one. It simply is not the case that I made a “decision to accept a position in the Regional Services Secretariat”. That is not the situation. The reclassification was a result of decision making on the part of senior management, and was not the result of a request on my part. I wish the record to be set straight on this point.
The approval of study leave is appreciated. The conditions are noted and accepted, although they are not as originally requested.
It would be appreciated, if any unused space in the Mowat Block could be assigned for my use as required since I will be making frequent use of the Ministry library resources.
Thank you for your personal wishes for success. The qualifying research paper was accepted and as you know, it was in fact the first installment of material of potential benefit to the Ministry. Additional copies may be made available if required.
Yours sincerely,
(H. E. Gillies)
Dr. Fisher replied to this letter on August 2.
Mr. H. E. Gillies,
Regional Services Secretariat,
Ministry of Education,
Mowat Block, 21st Floor,
900 Bay Street,
Toronto, Ontario.
M7A lL2
Dear Mr. Gillies,
Thank you for your letter of July 24, 1979. Your analysis of my memorandum of June 27, 1979, is quite correct and I appreciate having the matter brought to my attention. Like you, I'm finding it increasingly important for “the record to be set straight” and this gives me an opportunity to do just that.
I indicated to you in April that a Program Executive 5 position was available to you, albeit out of the central office area. You reflected on this proposal, rejected it the next day and we then discussed alternatives, one of which included an educational leave.
I assigned you to the Regional Services Secretariat under the conditions set out in my memorandum of June 27, 1979.
Subsequent to that positioning, you were granted an educational leave from the Regional Services Secretariat.
I'm sure Bob Rist can locate some working Location in the Mowat Block for you.
Mr. Podrebarac will be meeting with you on occasion during your leave and I will look forward to hearing of your progress.
Yours sincerely,
(H. K. Fisher)
Deputy Minister
Dr. Gillies proceeded on education leave, completed his doctorate, and returned to the Ministry in June of 1980, in the position of Education Officer with the Regional Services Secretariat, where he remains to the present time.
In his testimony, Dr. Fisher stated that he viewed the Education Officer as a “holding position” for Dr. Gillies. When asked to clarify what this really meant, he stated that it was a position to which Dr. Gillies could be assigned, from which he “could aspire to more senior positions.” Dr. Fisher was clear, in this regard, that the onus would be on Dr. Gillies to apply and be accepted for an executive level position and, until that was accomplished, he (Dr. Gillies) was permanently assigned as Education Officer in the Regional Services Secretariat.
Between the date of his return from leave and May of 1984, Dr. Gillies met with Dr. Fisher on a number of occasions (in the range of 10 to 12 times; the evidence is not absolutely clear on this point). These meetings dealt with two principal subject areas-- (1) Ministry affairs on which Dr. Gillies had particular knowledge by virtue of his former position and his doctoral research and (2) Dr. Gillies' career and, specifically, his return to the executive classification. While perceptions vary somewhat on the meaning and content of the latter category of discussion, the evidence seems clear that, with respect to Dr. Gillies' aspirations, Dr. Fisher was supportive and helpful, making suggestions of positions the grievor could apply for, agreeing to intervene on his behalf with respect to a position outside the Ministry, and so on. It should be noted that, at no time during this period did Dr. Gillies officially report to Dr. Fisher; in point of fact, there were three organizational layers between them. On the other hand, Dr. Fisher never gave Dr. Gillies any indication that he was unwilling to participate in such discussions, or that he should be discussing his career concerns with his direct supervisor.
Between the date of his return from leave and May of 1984, a number of positions in the Executive Compensation Plan became available with in the Ministry: some of these Dr. Gillies applied for, some he did not but, in any event, he was not appointed to any of them. The first of these, Director, Regional Services Secretariat, became open in June of 1981; the vacancy was not posted and was filled internally. Over the period to the filing of the grievance, approximately four more such positions became open.
This grievance was precipitated because of events that occurred at a meeting on May 30, 1984. During this meeting, the subject of two upcoming executive positions was raised (it is not entirely clear by whom), Dr. Gillies made it clear that he thought he should be appointed to one of them, and Dr. Fisher made it clear that he (Dr. Fisher) did not intend to appoint Dr. Gillies to one of them. It was at this point that the issue of Dr. Gillies' reclassification to the Executive classification -- and of his holding Dr. Fisher responsible for it-- was directly confronted and the question of a grievance explicitly raised for this first time.
ARGUMENT
(Jurisdictional Questions)
Counsel for the grievor dealt first with the questions of jurisdictional questions of timeliness, the procedure followed by Dr. Gillies in filing his grievance and the authority of this Board, under the Public Service Act, to award the remedy he is requesting.
With respect to the timeliness issue, it was argued that this particular situation was in the nature of a continuing grievance. In the alternative, it was also argued that, in any case, there was no prejudice to the employer, the delay was not undue and, finally, that by virtue of Dr. Fisher's entertaining of the grievor’s career concerns over a long period of time, the employer had, in effect, waived the time limits. Counsel for the Ministry argued that a “continuing grievance” was defined by a continued or repeated violation by the employer and not by a continued disadvantage to the grievor. That is to say, mention of the “first available position” in S. 16 of Regulation 881, R. R. 0. 1960 and the fact that the first appropriate position had become available in June of 1981, it is impossible to argue that the Ministry continued to violate S. 16 thereafter, (S. 16 is set out below.) She conceded that, while the Board had the right, under S. 60 of the Regulations, to extend the time limits, it cannot ignore them completely--which was what the grievor was asking that it do, given the three-year delay. Finally, she argued that Dr. Fisher in no way acted in a manner which could be construed as a “waiving” of the time limits.
With respect to the question of the mechanics of Dr. Gillies' grievance, the grievor's counsel admitted that S. 50 of the Regulations required the grievance to be filed with the employee's immediate supervisor. However, for all practical purposes and with respect to this particular situation, Dr. Fisher had acted as the grievor's de facto supervisor for four years and had never advised Dr. Gillies that he should deal with anyone else on this matter. Dr. Fisher was the “controlling and guiding force” with respect to this situation. Having by its conduct allowed the grievor to believe that it accepted Dr. Fisher's role in this capacity as proper, the Ministry was now prevented by the doctrine of estoppel from insisting on a strict application of this dimension of the grievance procedure, according to this argument.
Counsel for the Ministry argued that the Board has the right to abridge, but not completely ignore, the procedure as set out in the regulations; in effect, on the other hand, the grievor was asking the Board to ignore the procedure. She further argued that, in being willing to discuss the grievor's career concerns, Dr. Fisher had taken no action which could lead the grievor to the conclusion or belief that the proper appeal procedure ultimately to the Public Service Grievance Board was in any way modified and that, hence, the employer was not estopped from now relying on the procedural flaw. In other words, if Dr. Gillies had not followed the proper procedure, it was not through any action or statement of Dr. Fisher's.
With respect to this Board's authority to issue the remedy requested by the grievor-- that is, to order the employer to appoint him to the first available position in the Executive classification -- counsel for the Ministry argued that such authority is lacking. The Public Service Grievance Board is established under the Regulations to the Public Service Act and, under those regulations, employees in Schedule 1 (which includes those in the Executive Compensation Plan) clearly do not have access to the grievance procedure and, hence, the right to come before this Board. This Board cannot substitute its judgement for that of management with respect to a position at the level the grievor was requesting. Counsel for the grievor argued that, since the grievor had come under the Management Compensation Plan since 1979 and since the act being grieved had also occurred during this period, the grievor clearly had the right to come before this Board.
ARGUMENT
(Merits)
The grievor is requesting that the Public Service Grievance Board find that he has been wrongly denied a position in the Executive Compensation Plan and that we direct the Ministry to appoint him to the first such position to become available after the award. This request is based on two elements: (1) on an agreement the grievor claims he had with Dr, Fisher that he would be returned to the Executive Class and (2) on Sections 16 and 17 of the Regulations to the Public Service Act, Section 16, subsections 1 and 2, and Section 17, subsections 1 and 2, appear below.
RECLASSIFICATION
- --(1) Where the duties of a position are changed as a result of reorganization or reassignment of duties and the position is reclassified to a class with a lower maximum salary, a civil servant who occupies the position when the reclassification is made is entitled to salary progression based on merit to the maximum salary of the higher classification including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the reclassification takes place.
(2) A civil servant to whom subsection (1) applies is entitled to be appointed to the first vacant position in his former class that occurs in the same administrative district or unit, institution, or other work area in the same ministry in which he was employed at the time the reclassification was made.
17.--(1) Where, because of the abolition of a position, a civil servant is assigned,
(a) under section 4 from one position in a ministry to another position in the same ministry; or
(b) under section 5, from a position in one ministry to a position in another ministry,
and the position to which he is assigned is in a class with a lower maximum salary than the maximum salary for the class of the position from which he was assigned, he shall continue to be entitled to salary progression based on merit to the maximum salary of the higher classification including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the assignment takes place.
(2) Subsection (1) applies only where there is no position that the civil servant is qualified for and that he may be assigned to and that is,
(a) in the same classification that applied to the civil servant's position before the position was abolished; or
(b) in a classification having the same maximum salary rate as the maximum salary rate of the classification that applied to the civil servant's position before the position was abolished.
Section 16 (1) obliges the employer to appoint an employee to the first position in his former classification which becomes available after his/her position is reclassified downwards as a result of reorganization or reassignment of duties. Counsel for the grievor argued that, in fact, what happened to Dr. Gillies was a reclassification and not the abolition of his educational officer position, even though there is no question that his old position of Branch Director was, indeed, abolished.
The grievor maintains that he always conceived of his Position as Education Officer as a temporary situation, that he thought he had an agreement with Dr. Fisher that this was the case, and that, until May 30, 1984, he assumed that he would be placed back in the Executive Plan. Counsel pointed out that Dr. Fisher had referred to the Education Officer job as a “holding position” and suggested that at no time was Dr. Gillies ever made aware clearly and unequivocally that he was permanently out of the Executive Plan. Counsel argued that, while the Ministry may see it differently now, in reality, Dr. Gillies was appointed to the Education Officer position in a de facto “acting” capacity and that since he was allowed to keep his executive-level salary (albeit on a red-circled basis), the Education Officer position was, for practical purposes, an executive position. It was only afterwards, as his salary fell behind that of the executive position, and the position became permanent that it was, in effect, reclassified downwards, Accordingly, S. 16 of the regulations is operative and the Ministry should now appoint the grievor to the first available position in the executive compensation plan.
The grievor's counsel also argued that S. 17 was applicable to this situation. Subsection 1 requires the Ministry to maintain the employee's salary at the old level but, more importantly, subsection 2 by implication, also obliges the employer to restore the employee to the former level, according to this argument.
Counsel for the Ministry argued that, since there was no dispute that the grievor's former position had, indeed, been abolished as a result of a reorganization, then Section 17 of the regulations was applicable and Section 16 was not. To characterize Dr. Gillies' experience in the Education Officer position as a “reclassification,” as the grievor's counsel had tried to do, was to “torture” the definition of the word “reclasssify.” It was not, in 1979 or at any time since then, anything but permanent assignment to a new position as the result of the abolition of the old position and, accordingly, could not possibly come under Section 16. While Dr. Gillies may have aspired to a higher level position and, indeed, may have believed that he would be moved back, Dr. Fisher's memorandum of June 27, together with his letter of July10, 1979, should have made it clear to Dr. Gillies that he was now permanently assigned to a position in the Management Compensation Plan.
Since it clearly was the abolition of his Branch Director position and not the reclassification of his new Education Officer position which triggered the application of the regulations, it was Section 17 which applied, according to the Ministry counsel's argument. S. 17 requires only that the employee's salary be maintained at the old level, on a red-circled basis; it does not oblige the employer to restore the employee to his former position. In fact, non-restoration to former level noted in S. 17(2) is simply a triggering device for the maintenance of the old, higher salary. That is to say, if there is no position (in the old classification) for which the employee is qualified and “that he may be assigned to,” then the employer is obliged to maintain his old salary until the new one catches up. In point of fact, the grievor was offered another position at the old level (even though, under S. 17, the Ministry was under no obligation to make such an offer), but he turned it down. His salary was protected at the old level. In other words, S. 17 was properly applied.
AWARD
Turning first to the question of whether or not the Public Service Grievance Board can properly assume jurisdiction in this case, there are three possible grounds to argue that it does not--timeliness, procedure, and the ability of the Board to provide the remedy requested.
The question of time is not a trivial one in this case; to extend the time limits for three years requires the Board to have some very good reasons. Counsel for the grievor argued that this was a continuing grievance and, accordingly, any time limits are not exhausted, and cannot be exhausted, as long as the grievance continues. Ministry counsel met this argument by pointing out that, if the grievor relies on S. 16, the act complained of must have been the failure of the Ministry to appoint Dr. Gillies to the first available position--which occurred in June, 1981. Hence, the grievance cannot be continuing and, moreover, is over three years out of time. The grievor's counsel met this argument, in turn, by asserting that the transformation from the “holding position” to permanent position was so ambiguous and unclear to Dr. Gillies that he was not aware that he even had a grievance until May of 1984. Because of the continuing nature of the wrong done to him, in other words, Dr. Gillies finally recognized the situation and took the proper steps to grieve.
Whether or not this can truly be considered a continuing grievance is problematical and depends on the extent to which it can be inferred that Dr. Gillies was aware of the specific provisions of the Regulations and the degree to which he was holding the Ministry to the precise interpretation of the “first available position.” If, as Dr. Gillies has testified, he was basing his expectation not on the regulation but on his own expectation and on his interpretation of what was said (and not said) to him by Dr. Fisher, then the act complained of need not necessarily be restricted to the Ministry's failure to appoint him to the first available position in June of 1981. Even if he was fully aware of the Regulation, common sense would suggest that he might not hold the Ministry, literally, to the first available position. What, for example, if he did not want that particular position? One could easily envisage an employee in such a situation counting on the Ministry's good faith in appointing him to a position back in the Executive Plan, but a position on which there was mutual agreement and not necessarily, therefore, the first position. Only over a period of time would the recognition form in such an employee's mind that, in fact, the Ministry had no intention of reappointing him to such a position.
Arbitral jurisprudence is clear on the principle that, on determining when “the clock starts ticking” for purposes of time limits, the significant element is not necessarily the act complained of but the grievor's awareness of that act. [1973 CanLII 2087 (ON LA), 2 L. A. C. (2d) 30 (Weatherill, 1973)]. In this situation, both the grievor's and the Ministry's testimony make it clear that the meeting of May 30, 1984, was a revelation of sorts for both parties; each realized clearly for the first time the other's perception-Dr. Gillies, that Dr. Fisher was not going to appoint him to the two positions discussed or, for that matter, to any such position; Dr. Fisher, that Dr. Gillies was (and had been) holding him responsible for his promotion, and now non-promotion, back into the executive ranks. We are satisfied that a clear recognition of reality--and, therefore, that he had a grievance--did not crystallize in Dr. Gillies' mind until the meeting of May 30. Since he filed his grievance 13 days later, on June 12, it was within the time limits.
The next basis of objection to this Board's hearing the grievance is that Dr. Gillies did not comply with the grievance procedure as set out in Regulations 50 to 53. These stipulate that the grievance be made, verbally, with the supervisor within fourteen days of becoming aware of the complaint; that, if it is not satisfactorily resolved at this point, it then be made in writing to the supervisor within seven days and that the supervisor must respond, also in writing and also within seven more days; that, if the grievor is not satisfied, he may present his grievance to “a person ... designated by the Deputy Minister for this purpose,” and, if he is not satisfied with the result at this level, to the Deputy Minister. In this case, Dr. Gillies filed his grievance by writing to Dr. Fisher and not, as the regulations require, with his own supervisor.
Section 60 of the Regulations gives the Board the right to abridge the grievance procedure and we do so in this case, on two grounds. First, as the grievor's counsel argued, for all practical purposes, Dr. Fisher had acted in the role of Dr. Gillies' supervisor with respect to his career concerns for the last four years. It was Dr. Fisher, rather than any one else in the Ministry, who was intimately familiar with all of the facts of this complicated situation. Given that it can be presumed that the intent of starting the grievance procedure with the immediate supervisor is to commence proceedings with the individual most knowledgeable about the situation complained of, the intent of this aspect of the Regulation has not been violated. Further, it is abundantly clear that, given the discussions over the last three years, no one short of Dr. Fisher could possibly have dealt with it to the grievor's satisfaction; that is to say, the grievance would have ended up with Dr. Fisher as Deputy Minister, as the most knowledgeable person with regard to the situation, and as the individual with the power to remedy the grievance, in any case. We are satisfied that the intent of the procedure was met and that no prejudice was done to the Ministry. Accordingly, the grievor's failure to follow the specifics of the procedure does not prevent this Board from dealing with the grievance.
Finally, counsel for the Ministry argued that, timeliness and procedure aside, the Public Service Grievance Board would still lack jurisdiction by virtue of its inability to render the remedy requested by the grievor-appointment to a position in the Executive program. Since, by virtue of Section 49 (2), the grievance procedure does not apply to those whose positions are classified in the Executive Compensation Plan and since Dr. Gillies' former position was in this Plan, this Board cannot order that he be restored to that level, according to the argument. The Board cannot, in the words of the Ministry counsel, substitute its judgement for that of management with respect to a management position at this level.
With respect, we cannot agree with this argument. First of all, it is clear the Public Service Grievance Board does have jurisdiction over people classified in the Management Compensation Plan; it is clear, too that Dr. Gillies has been part of the Management Compensation Plan since April of 1979, by the Ministry's own argument. Secondly, the act complained of in the grievance is not his removal from his former position, but the Ministry's failure to restore him to a similar position; in other words, the act complained of occurred during his classification within the Management Compensation Plan.
Thirdly, this Board is not being asked to “substitute its judgement” for that of management with respect to a position at the executive level. We are not being asked to search through the Executive Compensation Plan or to examine a particular position in the Executive Compensation Plan and to conclude that Dr. Gillies should be given that position. Those activities would clearly be beyond the jurisdiction of this Board. However, we see no prohibition against our deciding, should the facts so merit, that Dr. Gillies should have been restored to an Executive Compensation Plan position and that the Ministry should do that now. Under such a judgement, the Ministry would exercise its own judgement on the position and this Board would not intrude. We cannot see that this offends against either the spirit or letter of the Public Service Act and Regulations. Indeed, if it can be inferred that part of the intent of the legislation was to afford an employee the opportunity to have his/her grievance adjudicated by a neutral body, then this interpretation is in harmony with that intent. Accordingly, it is concluded that the Public Service Grievance Board does not lack the power to issue the appropriate remedy, and that it has jurisdiction to hear this case.
While the facts of this situation appear to be complex, the merits are relatively straightforward, in the opinion of the Board. Counsel for the grievor based his contention that the grievor should be restored to the Executive Compensation Plan partially on the alleged understanding with Dr. Fisher but principally on the argument that what happened to Dr. Gillies was, in reality, the reclassification and not the abolition of a position. This, of course, is essential to the case because if what happened was a reclassification, then Dr. Gillies falls under Section 16 and is therefore entitled to the first available position in the Executive Compensation Plan; if there was no reclassification but only the abolition of his former position, then he falls under—and only under—Section 17 which, as argued by the Ministry at least, has a very different set of implications for the treatment of an employee,
Counsel for the grievor argued that, in reality, Dr. Gillies was appointed to the Education Officer position “on an acting basis” and with his old salary. At some later point, this position became permanent and, since his salary was red-circled, his old salary range moved ahead of where he was being held. In this sense, then, Dr. Gillies’ position was “reclassified” and, therefore, Section 16 is operative.
With respect, we agree with the Ministry's counsel's characterization of this argument as “torturing” the definition of “reclassification.” In point of fact, Dr. Gillies was assigned by Dr. Fisher to the position of Education Officer, albeit with his old salary (as required by S. 17.l), as an alternative to the PE 5 position in London, which Dr. Gillies had turned down. The Fisher memorandum of June 27, 1979, (1) makes clear that Dr. Gillies is moving to the position of Education Officer, (2) makes no mention that it is on anything but a permanent basis, and (3) further reinforces the permanent status by indicating that Dr. Gillies will retain his old salary “until such time as the maximum salary of your new position (PED 21) exceeds this rate.” The permanency of this position is further reinforced by Dr. Fisher’s letter of July 10 (especially paragraphs 1 and 5) and his letter of August 2.
That Dr. Fisher may have viewed this as a “holding position,”(and reflected that view in his discussions with Dr. Gillies) or that Dr. Gillies may have assumed that the onus was on Dr. Fisher other than on himself to restore him to the Executive Compensation Plan, do not change the fact that Dr. Gillies was “assigned” to the position of Education Officer on a permanent basis and that that fact was communicated to him in clear, unequivocal terms. Dr. Gillies’ use of the term “reclassification” in his letter of July 24 and Dr. Fisher's agreeing with this characterization of the situation in his letter of August 2, do not change this: “reclassification,” as used by Dr. Gillies, clearly refers to a reclassification of himself and not of his position, as would be required if S. 16 were to be operative. In short, we conclude that no reasonable interpretation of the facts can lead to the conclusion that the position of Education Officer was reclassified, and there never was any dispute as to the fact that his former position of Branch Director was abolished. Therefore, S. 16 of the Regulations is simply not applicable to this situation.
Clearly, then, S. 17 is the operative regulation; hence, we turn to the interpretation of that section. Counsel for the grievor argued that, by implication, S. 17 also obliged the Ministry to restore the grievor to a position of his former level. Again, with respect, we cannot agree with this interpretation. Subsection 1 deals with salary protection for an employee reassigned to a lower position because of the abolition of his/her position. Subsection 2 is simply the triggering device for the salary protection provision of Subsection 1. That is, salary protection is afforded to an employee “only where there is no position that the civil servant is qualified for and that he maybe assigned to” (that is, at the same level), As it turned out, there was another position at the same level which was offered to Dr. Gillies, but he turned it down. Again, Subsection 2 is a triggering device for the salary protection of Subsection 1. For the grievor's argument- that Section 17 creates an obligation on the employer to restore the employee to the same position level-- the Board would have to conclude that Subsection 2 meant (1) that if there is such a position, then the employee must be assigned to it and (2) the interpretation in (1) continues to operate indefinitely into the future. Such an interpretation is, both self contradictory and flies in the face of a comparison with Section 16. First, the employee must be “qualified” for the position. There is no such qualifier, by way of contrast, in Section16; in that section, it is simply “the first vacant position that occurs...” Second, Subsection 2 uses the phrase, “that he may be assigned to…” This suggests discretion, whether or not to make such an assignment, on the part of management. Finally, we must agree with counsel for the Ministry when she argued that, had the intent of S. 17 been the same as that of S. 16--namely, the clear obligation on management to restore the employee to the higher classification--then the language would have been similar; S. 17 would have clearly and unequivocally stated that an employee whose job is abolished is “entitled” to the first vacant position.
In summary, this Board cannot conclude that S. 17 means what the grievor's counsel argues that it means. It simply affords salary protection to an employee whose job has been abolished and who was not assigned, for whatever reason, to another job at the same level. In other words, the requirements of S. 17 were satisfied.
With respect to the alleged “understanding” or “agreement” between Drs. Fisher and Gilles that Dr. Gillies would be restored to a position of his former level, there was conflicting testimony on this point and, indeed, there may have been conflicting understanding between the two. Nevertheless, again, the Fisher memo of June 27 as well as the letters of July 10 and August 2 made clear that the position of Education Officer was of a permanent nature.
For all of the above reasons, the grievance is dismissed.
Dated at Kingston, Ontario, this 9th day of April, 1985.