P/0017/99

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Vince Goodall

Grievor

• and -

The Crown in Right of Ontario (Ministry of Education and Training)

Employer

BEFORE

Naresh C. Agarwal, Ph.D

Chair

FOR THE GRIEVOR

Osborne Barnwell, Counsel Ferguson, Barnwell Barristers and Solicitors

FOR THE EMPLOYER

Jonathan Cocker, Counsel Legal Services Branch Management Board Secretariat

HEARING

November 1 and 23, 1999.

Decision

GRIEVANCE

Mr. Vince Goodall filed a grievance with the Public Service Grievance Board on July 9, 1999. He grieved that he was overlooked for positions that became vacant while he was on a Leave of Absence (LOA).

BACKGROUND

As of October 1996, Mr. Goodall was employed as one of the seven Human Resources Consultants in the Human Resources Planning and Services Branch (“Branch”) of the Ministry of Education and Training (“Ministry”). A reorganization initiative in the Ministry resulted in a reduction of permanently funded Human Resources Consultant positions from seven to four. A competition, restricted to the job threatened staff, was held in November 1996 to determine which individuals would be placed in the remaining four positions. Mr. Goodall decided at that time not to compete for one of these positions. Pursuant to that decision, he requested, and was granted, a two-year LOA from July 8, 1997 to July 7, 1999 to extend his continuous service to over 10 years. By her letter dated July 9, 1997, Ms. Maureen Edgar, Director of the Branch, advised Mr. Goodall that upon the conclusion of his LOA, he would be declared surplus and receive the appropriate entitlements.

In May 1999, while Mr. Goodall was still on leave, he became aware that there had been vacancies in his Branch for which he did not receive notice and which had been filled through open competitions. On June 10, 1999, he sent a letter to Ms. Kim Bellissimo, Acting Director of the Branch complaining about being overlooked for these positions and seeking re-instatement to his previous position. The text of Mr. Goodall’s letter is reproduced below.

“Thank you for meeting with me on Friday, May 21, 1999 and for considering my request to take my MCO credits prior to the expiration of my leave of absence.

As I had expressed to you at the meeting, it was not until that morning it was brought to my attention that since I have been on leave of absence, permanent vacancies for Human Resources Consultants were filled including two vacancies created by the resignation of Jane Cousens and Mary Strizzi, two of the original HRC’s who had survived the downsizing in November 1996.

I find it rather surprising that the Human Resources Planning and Services Branch:

a) did not see it fit to inform me of those vacancies;

b) proceeded to have open competitions to fill those vacancies instead of reinstating me in my job as a Human Resources Consultant since I am the only remaining HRC who was impacted by the downsizing.

In light of the above, I am requesting that my pending redeployment at the conclusion of my leave of absence be reviewed and that I be reinstated in my job as a Human Resource Consultant.”

By her letter dated June 29, 1999, Ms. Bellissimo denied Mr. Goodall’s request. The relevant portion of her letter is reproduced below.

“In your letter you have referred to several competitions which occurred during your leave of absence. By way of response, I would point out that at the time of the downsizing in the Human Resources Branch you opted not to compete for a Human Resource Consultant position but chose to take a two-year leave of absence. As you were on a leave of absence at the time of the competitions, you did not have entitlements to be re-deployed to such vacancies. Accordingly, your request to be re-instated is denied.”

Subsequent to receiving Ms. Bellissimo’s response, Mr. Goodall forwarded his grievance to the Public Service Grievance Board (“Board”) for adjudication. The grievance claims that the competitions for positions under reference should have been closed to enable Mr. Goodall to be considered for direct assignment. In the alternative, it claims that the employer should have kept Mr. Goodall informed of the vacant positions and the associated competitions to enable him to enjoy his right to apply and be considered for these positions.

PRELIMINARY OBJECTION

Counsel for the Employer, Mr. Cocker raised a preliminary objection at the commencement of the hearing. He contended that the Board had no jurisdiction to hear the claim that the Employer had a positive obligation to inform Mr. Goodall of the positions that became available during his LOA. Mr. Cocker put forward the following arguments in support of his position. First, he asserted that Section 34 (1) of the Regulation 977 under the Public Service Act limited the claims that could be heard by the Board to those relating to working conditions or terms of employment and that the claim of notification of competitions during LOA did not fall into either category. Second, he stressed that no obligation upon the employer to keep a management employee informed of competitions during his/her LOA could be found in the multitude of policies governing the management sector. Third, Mr. Crocker submitted that no oral contractual agreement existed between the Grievor and the Employer obliging the Employer to keep the Grievor informed of the competitions while he was on his LOA. Finally, he pointed out that the competitions under reference were open, posted on the bulletin boards, and published in the government newsletters. Therefore, he contended that the Grievor certainly had access to information about these competitions.

Counsel for the Grievor, Mr. Barnwell made the following submission with respect to the preliminary objection raised by the Employer. First, he explained that by letter of July 9, 1997 from the Director of the Branch (Ms. Edgar), Mr. Goodall had been advised that he would be declared surplus upon completion of his LOA on July 7, 1999. Mr. Barnwell claimed that the impending surplus situation that Mr. Goodall was faced with gave him the right to be considered for direct assignment to a vacant position under Section 14 (2) of Regulation 977 and the right to be included in all competitions for employment in the civil service under Section 14 (6) of the same Regulation. He submitted that Mr. Goodall was unable to enjoy these rights, as he was not kept advised of the positions that became available while he was on his LOA. Second, Mr. Barnwell explained that Mr. Goodall had taken LOA to avoid the risk of being declared surplus before completing 10 years of continuous service with the government. He contended that the Director of the Branch, Ms. Edgar, had direct knowledge of the reason behind Mr. Goodall going on LOA and therefore ought to have informed him of the vacancies arising during his LOA. Third, Mr. Barnwell submitted that keeping Mr. Goodall informed of the vacancies while he was on LOA was a matter of procedural fairness, which must be respected in the employment context as employment is central to one’s being. Here he cited two cases in support of his contention: Wallace v. United Grain Growers Ltd. (c.o.b. Public Press) 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701, and Misfud v. MacMillan Bathurst Inc. (C.A.) 1989 CanLII 260 (ON CA), [1989] 70 O.R. (2d) 701. Finally, Mr. Barnwell contended that the Public Service Act and Regulation 977 under it clearly specify who could not file a grievance for adjudication by the Board and that none of those exclusions applied to Mr. Goodall.

In reply, Mr. Cocker maintained that the extent to which the grievance asserted a positive obligation on the part of the Employer to inform the Grievor of the competitions while he was on his LOA, the Board had no jurisdiction to hear it. He reiterated that Section 34 (1) of Regulation 977 under the Public Service Act limits the grievances that could be heard by the Board to those relating to working conditions or terms of employment, and that the Grievor’s claim under reference did not fall into either category. Accordingly, Mr. Cocker continued his preliminary objection and asked the Board to rule on it.

Following Mr. Cocker’s reply submission, Mr. Barnwell informed the Board that the Grievor had decided to withdraw part of his grievance, which claimed that the Employer was obligated to keep him informed of the competitions while he was on his LOA. Thus, there was no need for this Board to consider the preliminary objection raised by the Employer and issue a ruling on it. The Board then proceeded to hear the remaining part of Mr. Goodall grievance.

EVIDENCE

The following three individuals gave evidence at the hearing of Mr. Goodall’s grievance:

On Behalf of the Grievor

• Mr. Vince Goodall, Grievor

On Behalf of the Employer

• Mr. Stephen Brown, Policy Advisor, Staffing and Development Branch, Management Board Secretariat.

• Ms. Patricia Macdonald-Rea, Manager, Human Resources Planning and Services Branch, Ministry of Education and Training.

Mr. Goodall began his testimony by highlighting his educational background and career history. He stated that he obtained a Bachelor’s degree in Personnel and Industrial Relations from Indiana University in 1964 and had over 19 years of work experience in the human resources field prior to joining the Human Resources Planning Services Branch in the Ministry of Education and Training in 1988. At the time of downsizing in his Branch in October 1996, Mr. Goodall held the position of Human Resources Consultant. He outlined his key responsibilities in this position to include giving advice and consultation to client managers on redeployment policies and work with them in issuing surplus notices, and arranging for training, direct assignment and interviews for surplus employees.

A competition restricted to the job threatened Human Resource Consultants in the Branch was held in November 1996 to determine which ones among them would be placed into the four positions remaining after downsizing. In his testimony, Mr. Goodall explained why he decided not to compete for one of these positions and to go on a two-year LOA instead. He said that if he were unsuccessful in the competition, he would have been declared surplus. He went on LOA to avoid this potential risk and increase his continuous service to over 10 years to ensure eligibility for post-retirement dental and medical benefits. This, Mr. Goodall stated, was very important to him at his advanced age of 59 at the time.

Mr. Goodall testified that prior to proceeding on his LOA, he was on sick leave from January through June 1997. During this period, he became aware of an upcoming open competition in a telephone conversation with Ms. Macdonald-Rea. Mr. Goodall felt that this competition should have been closed for him to be considered for direct placement, as the other two Human Resource consultants affected by downsizing had already left the civil service. He testified that when he questioned Ms. Macdonald-Rea why it wasn’t so, her reply was that it was the Ministry’s decision. In cross-examination, Mr. Goodall was asked why he did not compete for this position. His explanation was that if he were not successful, he would have been declared surplus and would have, as a consequence, lost post-retirement medical and dental benefits.

Mr. Goodall commenced his two-year LOA on July 8, 1997. He testified that during his LOA, he did not maintain touch with his Branch, but he expected his Manager to advise him of any vacancies arising in the Branch given his impending surplus situation. He gave evidence that in May 1999, he became aware of several Human Resource Consultant vacancies that had been filled through open competitions during his LOA. In a letter dated June 10, 1999 Mr. Goodall complained to Ms. Bellissimo about not being informed about these vacancies and directly placed into one of those positions. He requested that he be re-instated as a Human Resource Consultant. Ms. Bellissimo denied his request in her letter dated June 29, 1999 explaining that the entitlement to be deployed to such vacancies was not available to him as he was on LOA and not yet a surplus employee. Excerpts of this correspondence were reproduced earlier in this report. In cross-examination, Mr. Goodall acknowledged that even if he had become aware of the vacancies in question, he would not have competed for them for the same reason as he gave for not competing for the vacancy that he came to know about from Ms. Macdonald-Rea in 1997. That is, he wanted to avoid the risk of being declared surplus and, as a consequence, losing post-retirement medical and dental benefits.

In cross-examination, Mr. Goodall was questioned about the source of his expectation that while on LOA and prior to being declared surplus, he was entitled to be considered for direct placement into vacancies. He responded that his expectation was based on a logical, just, reasonable, and fair perspective. Employer’s Counsel referred Mr. Goodall to the Employment Transition of Management & Excluded Employees Directive issued by the Staffing and Development Services Branch of the Management Board Secretariat (MBS). He drew Mr. Goodall’s attention in particular to the section on Direct Assignment and asked him if he was covered by it. Mr. Goodall said he was not, because it applied to surplus employees and he was not a surplus employee yet. However, he added that logic and commonsense would suggest that he should have been covered by it because of his impending surplus situation.

In his evidence, Mr. Brown testified that prior to his current position, he was employed in the Corporate Programs and Services Unit of the MBS from December 1993 to May 1999. He indicated that in this job, he was responsible for redeployment and surplus issues for management and excluded employees throughout the Ontario Public Service and therefore had to frequently refer to and apply the Employment Transition of Management & Excluded Employees Directive. Mr. Brown’s evidence was that this Directive covered only those employees who had received a formal notice of release/surplus. He pointed out that a formal notice of release must include these elements: notice period, entitlement options being offered to the employee (e.g., pay in lieu of notice, deployment/direct assignment etc.), and date of release. Mr. Brown further testified that during the notice period, the employee would be eligible for direct assignment to vacancies if a) he/she had chosen that option when served a formal notice of release and b) satisfied the selection criteria established for those vacancies. He asserted that the direct assignment option was not available prior to receiving a formal notice of release.

Mr. Brown was asked in his cross-examination if the letter that the Branch Director, Ms. Maureen Edgar had sent Mr. Goodall advising him that he would be declared surplus upon completing his two-year LOA could be construed as a notice of release. His answer was that it could be, but he made it clear in his re-examination by the Employer’s Counsel that the letter did not constitute a formal notice of release. Mr. Brown explained that the letter lacked the elements that he had earlier identified in his testimony as being necessary components of such a notice i.e., formal notice period, options concerning entitlements being offered to the employee, and date of release. He pointed out that the letter showed only the date when Mr. Goodall’s two-year LOA was to end. Mr. Brown stressed that this did not mean that the notice period would automatically begin as of that date, as Mr. Goodall’s LOA could be extended or the situation in the Branch could change, making Mr. Goodall’s release unnecessary.

In his cross-examination, Mr. Brown was referred to Regulation 14.2 under the Public Service Act, which uses the wording “Where it is proposed to release a full-time civil servant” and goes on to provide direct assignment entitlement for such an employee under certain conditions. He was asked whether the wording would cover some one like Mr. Goodall, who had been told that he would be declared surplus upon completion of his LOA. Mr. Brown’s response was that the wording covered only those who had been given a formal notice of release or surplus with those elements specified, which he described earlier in his testimony. He asserted that an advanced warning of release without these elements could not be considered a formal notice.

Ms. Macdonald-Rea indicated in her testimony that she joined her current position of Manager, Human Resources Planning and Services Branch in November 1996 and in that capacity was Mr. Goodall’s supervisor for a short while before he went on leave. She testified that she was familiar with how the Ontario Public Service provided for deployment entitlements for surplus employees through her experience in managerial positions she had held over the years in the government.

Ms. Macdonald-Rea testified that Mr. Goodall was not eligible for direct assignment to positions becoming available during his LOA. She explained that he would become so only after he received his formal notice of release and elected the option relating to direct assignment. Ms. Macdonald-Rea was copied on the letter that Ms. Edgar sent Mr. Goodall on July 9, 1997 advising him that he would be declared surplus upon the completion of his two-year LOA on July 8, 1999. According to her testimony, this letter could not be regarded as a formal notice of surplus for deployment purposes because it contained neither a notice period nor entitlement options.

Ms. Macdonald-Rea testified that Mr. Goodall could have competed in November 1996 for the four remaining positions along with his other job threatened colleagues and could have applied for LOA if he were not successful. She explained that there was a period of 2 to 3 months between the competition and issuance of surplus notices to the unsuccessful candidates.

Ms. Macdonald-Rea explained that until Mr. Goodall was formally declared surplus, he would continue to be classified as a regular employee with all the rights including being able to apply for positions within the civil service. This would be equally true during his LOA. Ms. Macdonald-Rea outlined two alternatives that Mr. Goodall could follow with respect to finding a job during his LOA. First, he could participate in open competitions for available positions. If successful, he could terminate his LOA and accept the position. If not successful, he would continue to remain on his LOA. Second, Mr. Goodall could terminate his LOA at the time of a vacancy becoming available, get a formal notice of release, and elect the option of redeployment offered in that notice. In this way, Mr. Goodall could make himself eligible for consideration for direct assignment to that position. When asked in cross-examination whether these alternatives, as she outlined them, were written anywhere, Ms. Macdonald-Rea responded “no, not that specifically”. However in her re-examination, she cited a provision described on pages 7 and 8 of the Employment Transition of Management & Excluded Employees Directive as the authority for suggesting that Mr. Goodall could trigger a surplus notice by terminating his LOA. This provision of is titled “Treatment of Surplus Notices Issued Before an Employee Goes on A Leave of Absence or a Temporary Assignment”. Ms. Macdonald-Rea added that Human Resource Consultants like Mr. Goodall should be familiar with this provision. The Grievor’s Counsel also asked her if she ever counseled Mr. Goodall about these alternatives. Her answer was that she did not because he had already made his decision to go on a LOA before she became his Manager.

FINAL ARGUMENT

Mr. Barnwell made the following submissions on behalf of his client, Mr. Goodall. He contended that it was reasonable for Mr. Goodall’s to expect that while he was on his LOA, if a position became available, he would be placed into it. Mr. Barnwell argued that when a person’s position was being eliminated due to restructuring in the organization, if a comparable position became available, equity demanded that he/she should be assigned to that position. He submitted that people in authority in the Branch knew why Mr. Goodall had gone on a two-year LOA. Accordingly, they should have considered him for direct assignment to one of the positions that did become available during his leave period.

Mr. Barnwell pointed out that Mr. Goodall had certain perceptions and he acted based upon those during his LOA. In her testimony, Ms. Macdonald-Rea gave an idea of how Mr. Goodall could have planned his actions better i.e., he could have participated in open competitions without jeopardizing his LOA, or he could have terminated his LOA at the time of a vacancy, get a formal notice of release, and become eligible for direct assignment to that position. Mr. Barnwell referred to the letters dated January 9, 1997 and July 9, 1997 written by the Branch Director, Ms. Maureen Edgar (Exhibits 2 and 3) and the letter dated July 7, 1997 by Deputy Minister, Ms. Veronica Lacey (Exhibit 6) to Mr. Goodall concerning his LOA. He asserted that none of these letters advised Mr. Goodall of the options that Ms. Macdonald-Rea outlined in her testimony. Mr. Barnwell further asserted that Ms. Macdonald-Rea herself had an opportunity to advise Mr. Goodall when the two had a conversation in July 1997, but that did not happen.

Mr. Barnwell submitted that the Employer had the responsibility to inform and counsel Mr. Goodall of the options available to him during his LOA and failure to carry out this responsibility imposed an enormous cost on Mr. Goodall. He contended that according to principles of procedural justice, the onus rests on employers to keep employees duly informed especially when their basic right to livelihood is being threatened. Mr. Barnwell cited Wallace v. United Grain Growers Ltd. (c.o.b. Public Press) 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701, in particular paragraphs 91 through 93, 95, and 98, in support of his contention.

Mr. Cocker made the following submissions on behalf of the Employer. First, he contended that Mr. Goodall did not have the same entitlements as those of a surplus employee. He added that being a senior Human Resource Consultant, Mr. Goodall should have known that he was not eligible to be considered for direct assignment becoming available during his LOA until he was formally declared surplus. Second, Mr. Cocker contended that from the final submissions made by Mr. Barnwell, it appeared that the focus of Mr. Goodall’s grievance had shifted from a claim concerning entitlements under Section 14 (2) of Regulation 977 under the Public Service Act to a claim concerning Employer’s obligation to inform Mr. Goodall of scenarios re his LOA as outlined by Macdonald-Rea in her testimony. He asserted that such an obligation on the part of the Employer could not be found in any governing legislation or policy, nor could it be viewed as a term of employment or working condition under Section 34 (1) of Regulation 977. As such he submitted that this Board did not have jurisdiction to hear Mr. Goodall’s grievance as it pertained to this obligation. Mr. Cocker additionally submitted that it was unreasonable to impose such an obligation on the Employer.

Third, Mr. Cocker stated that during his LOA, Mr. Goodall never wrote a letter or made a phone call to inquire about jobs or took the initiative to find out the implications of what he was thinking of doing or not doing. Accordingly, he claimed that Mr. Goodall did nothing to meet his obligations. Fourth, Mr. Cocker questioned the timeliness of the grievance. He submitted that Mr. Goodall became aware of the job vacancies for which he claimed he had been overlooked on May 21, 1999, but he did not file a grievance with the Board until July 9, 1999. This, Mr. Cocker pointed out was beyond the 14-day limit stipulated for filing grievances in Section 34 (1) of Regulation 977. He also claimed that this Board did not have power to extend the time limit on its own motion, as Section 54(b) of Regulation 977 allowing such power was repealed in 1996. Mr. Cocker contented that this Board had only those powers, which were conferred on it by statute. He cited Canadian Broadcasting Corporation et al v. Cordeau et al [1977] S.C.C. 101 D.L.R. (3d) in support of his contention.

In reply, Mr. Barnwell submitted that the contention that a term of employment or a working condition about which an employee could grieve must be found in statute could not be supported in law. He took the view that had those in authority put their minds to Mr. Goodall’s situation, they should have been informed of how he should have planned his job search behaviour during his LOA and advised him accordingly. Mr. Barnwell cited Misfud v. MacMillan Bathurst Inc. (C.A.) 1989 CanLII 260 (ON CA), 1989] 70 O.R. (2d) 701 in support of his view.

Mr. Barnwell also disputed Mr. Cocker’s claim that Mr. Goodall’s was untimely. He contended that the relevant Section of Regulation 977 to judge timeliness of filing a grievance with the Board was 36 (1) and not Section 34 (1) as suggested by Mr. Cocker. Section 36 (1) stipulates that a grievor may file his grievance with the Board within 14 days of hearing the decision of the Deputy Minister concerning his complaint. Mr. Barnwell explained that Mr. Goodall sent his complaint about being overlooked for vacant positions on June 10, 1999 to Ms. Bellissimo, Acting Director of the Branch. Her reply rejecting his complaint was sent on June 29, 1999. Mr. Barnwell noted that Mr. Goodall filed his grievance with the Board on July 7, 1999, which was within the 14-day time limit as stipulated in Section 36 (1) of Regulation 977.

DECISION

A. Preliminary Issues

Two issues raised by the Employer’s Counsel, Mr. Cocker need to be decided at the outset. These are: timeliness of the grievance and this Board’s jurisdiction to hear one part of the grievance. Consideration of and decision on the merits of the grievance would follow depending upon the rulings issued on these two issues.

Mr. Cocker claimed that Mr. Goodall’s grievance was untimely and cited Section 34 (1) of Regulation 977 in support of his claim. Section 34 (1) reads as follows:

“A person described in subsection (2) who is aggrieved about a working condition or term of his or her employment may file a grievance with his or her deputy within 14 days after becoming aware of the working condition or term of employment giving rise to the grievance”

Mr. Cocker stated that the evidence placed before the Board showed that Mr. Goodall became aware of the issue about which he was grieving on May 21, 1999, but he did not file his grievance with the Board until July 9, 1999. This he said was clearly well over the 14-day limit specified in Section 34 (1).

The Board is of the view that Part V of Regulation 977 specifies a two-stage process for filing a grievance and at each stage a 14-day time limit is specified. Section 34 (1) cited by Mr. Cocker relates to the first step i.e., filing a grievance with the deputy. The second stage relates to filing of that grievance with the Board if the grievor is not satisfied with the outcome at the first stage. Section 36 (1) of Regulation 977 is the relevant provision for the second stage, and it reads as follows:

“A grievor who is not satisfied with the decision of the deputy minister may apply to the Public Service Grievance Board within 14 days after receiving the decision for a hearing about his or her grievance”

The evidence presented at the hearing indicates that Mr. Goodall submitted his grievance to Acting Director of his Branch, Ms. Bellissimo on June 10, 1999. The Board takes the view that Ms. Bellissimo could be considered as the delegate of the deputy minister for the purposes of Section 34 (1) of Regulation 977. This means that Mr. Goodall filed his grievance at the first stage after 19 days of becoming aware of the factors giving rise to his grievance, which is 5 days beyond the time limit specified in Section 34 (1). Ms. Bellissimo sent her response on June 29, 1999 in which she denied Mr. Goodall’s grievance, but without raising the issue of 5 days of delay in filing the grievance. Mr. Barnwell submitted that it was for Ms. Bellissimo to object to the delay in filing the grievance at that stage of the process, but she didn’t. The evidence presented at the hearing indicates that Mr. Goodall filed his grievance with the Board on July 9, 1999, which adds up to 10 days from the date of Ms. Bellissimo’s response. Mr. Barnwell submitted that the Board should judge the timeliness of Mr. Goodall’s grievance with reference Section 36 (1) of Regulation 977 and that Mr. Goodall’s grievance was filed with the Board within the 14-day time stipulated therein.

This Board agrees with the submissions made by Mr. Barnwell on the issue of timeliness and finds that Mr. Goodall’s grievance was filed with the Board within the prescribed time limits.

Having issued this ruling, I wish to comment on the question of the Board’s power to extend time limits for filing grievances, as stipulated in Regulation 977. In his submissions, Mr. Cocker asserted that the Board could not extend time limits on its own motion because its power to do so ceased to exist with the repeal of Section 54 (2) of Regulation 977 in 1996. I am of the view that while the rather archaic language of Section 54 (2) has been removed, it does not change the Board’s discretion to extend time limits in appropriate cases. If the intent behind repealing Section 54 (2) were to remove this discretion entirely, the language of Sections 34 (1) and 36 (2) would be mandatory. These Sections use the permissive term ‘may’ as opposed to the mandatory term ‘shall’. The Board has held this view in at least two prior cases: Johnston and Vipari (1999) P/0003/99 and Johnson and Smith (1999) P/0001/99, P/0005/99.

The second issue raised by Mr. Cocker that needs to be addressed at the outset pertains to jurisdiction of the Board to hear part of Mr. Goodall’s grievance, which relates to a claim concerning Employer obligation to inform and counsel him on certain matters relating to his LOA. In his final argument, Mr. Cocker contended that such obligation could not be found in any governing legislation or policy, nor could it be termed as a working condition or term of employment under Section 34 (1) of Regulation 977. Thus, he submitted that the Board lacked jurisdiction to hear it.

The Board has reviewed Regulation 977 and notes that the matter of LOA forms part of Part VI where various employee benefits available to eligible employees along with the policies and procedures governing them are discussed. Mr. Goodall’s claim, on the face of it, involves questions about the administration of LOA policies and procedures to this particular case. The Board considers these questions to fall under the scope of Section 34 (1) of Regulation 977 and accordingly rules that it has jurisdiction to hear the claim.

B. Merits of the Grievance

Having issued the above rulings on preliminary matters, the Board can proceed to consider and decide on the merits Mr. Goodall’s grievance. There are essentially two issues that are raised in the grievance: one relating to Mr. Goodall’s deployment entitlements during his LOA, and the other relating to the Employer’s obligation to inform and counsel Mr. Goodall on job search scenarios open to him during his LOA. The Board’s findings on each of these issues along with the underlying reasoning are discussed below.

Deployment Entitlements: A number of positions became available while Mr. Goodall was on his LOA and these were filled through open competitions. Throughout his testimony given at the Hearing, Mr. Goodall maintained that these competitions should have been closed to enable him to be considered for direct assignment. His position, as stated in his grievance letter dated July 9, 1999 and reiterated by his Counsel, Mr. Barnwell in his opening statement at the Hearing, is that his impending surplus situation gave him the right to such consideration under Section 14 (2) of Regulation 977. Based on a thorough review of all the oral and documentary evidence placed before it, this Board finds that Mr. Goodall did not have this right during his LOA. The reasons for this finding are discussed below.

It is evident that surplus employees have the right, under certain conditions, to be directly assigned to vacancies becoming available. This right is provided for in Section 14 (2) of Regulation 977 under the Public Service Act (PSA), which reads as follows:

“Where it is proposed to release a full-time civil servant and in any ministry to which he or she applies there is a vacant position,

(a) for which she is qualified;

(b) for which he or she is acceptable to the deputy minister of the ministry; and

(c) in the same class as or in a class with a maximum salary not greater than that of the position occupied by the civil servant,

the deputy minister of the ministry shall transfer the civil servant to the vacant position”

The above position is also reflected in a government document titled “Employment Transition of Management & Excluded Employees Directive”. The Section on “Direct Assignment” of this document specifies the administrative policies and procedures to be followed in implementing the requirement.

The question before the Board then is whether Mr. Goodall could be deemed to be a surplus employee or not during his LOA. If the answer were yes, he would be entitled to be considered for direct assignment to positions becoming available during his LOA. Both Mr. Brown and Ms. Macdonald-Rea testified that during his LOA, Mr. Goodall continued to be a regular employee and did not have the status of a surplus employee, as he had not been released from his position and given a formal notice to this effect. They further testified that the July 9, 1997 letter of the Branch Director, Ms. Edgar to Ms. Goodall (Exhibit 3) could not be regarded as a formal notice of release because it did not contain these necessary elements: notice period, proposed date of release, and entitlement options being provided. This Board also conducted a thorough review of Section 14 (2) of Regulation 977 under the PSA and the relevant portions of the Employment Transition of Management & Excluded Employees Directive to make its own determination of Mr. Goodall’s status and deployment entitlement during his leave period. Based on this review, it reached the same conclusion that Mr. Goodall was not a surplus employee while on LOA and, therefore, did not have the legal right to be considered for direct assignment to vacancies arising during this time period.

The Board also noted that in his cross-examination, Mr. Goodall acknowledged that the direct assignment policy and procedures as provided in the “Employment Transition of Management & Excluded Employees Directive” did not cover him, as he was not yet a surplus employee. He also acknowledged that he was not aware of any other policy that covered his situation. However, he contended that in view of his impending surplus situation, it was only fair and just that he too should have been given the direct assignment entitlement available to surplus employees under the existing policy. Even if this Board were to find merit in Mr. Goodall’s contention, it could not rule in his favour because doing so would require it to take on a policy-setting role. Such a role is beyond the Board’s mandated authority to assume.

Employer’s Obligation to Inform and Advise: The second issue raised in the present grievance relates to the claim made by Mr. Barnwell that the Employer had an obligation to inform and counsel Mr. Goodall about job search scenarios open to him during his LOA. This claim was not part of the original grievance as filed with the Board on July 9, 1999. It arose from the testimony given by Ms. Macdonald-Rea at the Hearing in which she outlined these two alternative ways Mr. Goodall could have gone about finding a position during his LOA: a) Mr. Goodall could have competed for positions becoming available. If he was successful in obtaining a position, he could terminate his LOA and accept the position. If he were not successful, he would simply continue to be on his LOA; and 2) Mr. Goodall could have terminated his LOA at the time of a position becoming available. He would then be issued a formal notice of surplus with a deployment option by choosing which he could receive consideration for direct assignment to that position.

Mr. Barnwell’s claim is that the Employer had an obligation to inform and advise Mr. Goodall of these alternatives so that he could have planned his actions better during his LOA. Taking into consideration all the evidence and submissions presented at the Hearing, this Board does not find merit in this claim. The reasoning behind this conclusion is explained below.

It is obvious from Mr. Goodall’s testimony that he incorrectly believed that if he competed for a position during his LOA and was not successful in obtaining it, he would be declared surplus and would, as a consequence, fail to complete the 10 years of continuous service needed to gain eligibility for medical and dental retirement benefits. In effect, Mr. Goodall appeared to have mistakenly assumed that his LOA would be automatically terminated the moment he competed for a position. The Board is of the view that Mr. Goodall should have known that he remained an employee during his LOA and therefore had all the rights of an employee including the right to compete for positions. While it is not clear what caused Mr. Goodall to make the incorrect assumption, the Board has no basis to find that the Employer was in any way responsible for it. The Grievor made no such allegation against the Employer, nor was there any evidence presented which might suggest that the Employer somehow played a role in causing Mr. Goodall to misperceive his situation.

It is also apparent from Mr. Barnwell’s submissions that that Mr. Goodall was not even aware of the second alternative Ms. Macdonald-Rea outlined in her testimony. That is, he could terminate his LOA at the time of a position becoming available, get a surplus notice, and, as a result, be considered for direct assignment to that position. The Board is of the view that Mr. Goodall should have known about this alternative for at least two reasons. One, he decided to go on a LOA for two years to delay the issuance of a surplus notice to him, so it should be obvious to him that he could trigger the issuance of this notice by terminating his LOA at any time. Two, Mr. Goodall had access to, and also, as a senior Human Resource Consultant should be familiar with, the document “Employment Transition of Management & Excluded Employees Directive”. Pages 7 and 8 of this Directive contain information relevant to the alternative.

The Board is also not convinced that even if Mr. Goodall were aware of the alternative in question, he would have acted according to it. It noted the explanation that Mr. Goodall gave as to why he decided not to compete in November 1996 for one of the 4 Human Resource Consultant positions remaining after downsizing in the Branch but to go on a two-year LOA instead. Had he competed and not been successful, he would have been declared surplus. Mr. Goodall went on LOA to avoid the risk of being declared surplus before completing ten years of continuous service, needed to qualify for post-retirement medical and dental benefits. These benefits, he testified, were extremely important to him because of his advanced age and approaching date of retirement. It is true that terminating his LOA at the time of a position becoming available would have enabled Mr. Goodall to be considered for direct assignment to that position. However, it also would have exposed him at the same time to the risk of losing post-retirement medical and dental benefits, which he appeared to value highly. The reason for this is that being considered for direct assignment to a position is not the same thing as being guaranteed that position. Both Mr. Brown and Ms. Macdonald-Rea testified to this effect. The Board’s own review of the legislation and policy governing direct assignment also indicates the same to be true.

Finally, it is evident that Mr. Goodall made certain assumptions about what he could or could not do during his LOA and he acted accordingly. He made virtually no effort to verify his assumptions or find out the implications of what he was thinking of doing or not doing. According to his own testimony, Mr. Goodall maintained very little contact with the Employer during his leave period. He contacted Ms. Macdonald-Rea in or about June 1997 when he was on his sick leave, just prior to the commencement of his two-year LOA beginning on July 8, 1997. During this conversation, Mr. Goodall was advised of an upcoming competition for a position, which he refused to enter. The only other contact he initiated with the Employer was on May 21, 1999, barely 6 weeks prior to when his LOA was scheduled to end. He visited the Branch for a meeting with Ms. Bellissimo during which he became aware that several vacancies had arisen in the Branch and elsewhere in the civil service during his LOA and that these had been filled through open competitions. During these only two contacts with the Employer, Mr. Goodall focused on essentially one issue i.e., questioning why the competitions for the vacancies in question were not closed so that he could be considered for direct assignment to those positions. The Board agrees that the Employer had a responsibility to counsel Mr. Goodall but it is of the view that Mr. Goodall gave no opportunity to the Employer to become aware that he needed counsel and advice. Thus, the Board is not prepared to find that the Employer did not meet its obligation to counsel Mr. Goodall.

In summary, Mr. Goodall’s grievance raised two claims. One relates to his entitlements under Section 14 (2) of Regulation 977 under the Public Service Act and the other to the Employer’s obligation to inform and counsel him about two specific job search scenarios that he could pursue during his two-year leave of absence. After taking into account all of the evidence and submissions and for the reasons given above, the Board rejects both these claims. Accordingly, the present grievance is denied.

Dated at Toronto, this 12th day of September, 2000.