P/0008/01, P/0010/01, P/0011/01, P/0014/01, P/0016/01, P/0018/01, P/0019/01, P/0020/01, P/0021/01, P/0022/01, P/0023/01, P/0024/01, P/0025/01, P/0026/01, P/0027/01, P/0028/01, P/0029/01, P/0030/01, P/0031/01, P/0032/01, P/0033/01, P/0034/01, P/0035/01, P/0037/01, P/0038/01, P/0039/01, P/0041/01, P/0043/01

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Williams et al.

Grievor

• and -

The Crown in Right of Ontario (Ministry of Correctional Services)

Employer

BEFORE

Deborah J.D. Leighton

Vice-Chair

FOR THE GRIEVOR

Andrew Camman, Counsel Polishuk Camman & Steele Barristers and Solicitors

FOR THE EMPLOYER

Len Marvy, Senior Counsel Legal Services Branch Management Board Secretariat

HEARING

September 13, 2001.

Decision

The grievors are employed as Operational Managers (OM16) in the Ministry of Correctional Services in various correctional institutions slated to be closed by the employer as part of a major restructuring of Ontario’s prison system. The grievors take the position that the restructuring constitutes a material change under section 22(4) of the Public Service Act, R.S.O. 1990 c. P. 47 (as amended) and the loss of their jobs triggers the protection and entitlements of section 14(2) of Regulation 977, R.R.O. 1990, which provides that a surplus employee is entitled to be transferred to a vacant position if amongst other conditions h/she is qualified. The grievors complain that a job competition of the OM-16 vacancies posted on June 22, 2001, open to all employees of the ministry was conducted contrary to their entitlements under the PSA and Regulation 977.

The employer's position is that section 22(4) of the PSA has not been triggered and therefore section 14(2) of Regulation 977 is not applicable to the grievors. Section 22(4) gives the Deputy Minister the discretion to declare a public servant surplus under certain conditions such as shortage of work or material change but there is no requirement to so declare, particularly when the employees are still needed in their institutions. Alternatively, the employer's position is, should the board find that section 22(4) of the PSA is engaged then the "Addendum to the Staffing Operating Policy" approved "to enable timely and flexible staffing of MCS institutional management positions throughout the transition period," provides the grievors with entitlements, which do not include a right to a vacancy under section 22(a) of the PSA.

At the outset of the hearing into this matter, in response to a request for further disclosure by Mr. Camman, counsel for the grievors, Mr. Marvy, counsel for the employer, stipulated that for the purposes of this proceeding there are seventy-five vacant OM-16 positions. Counsel also agreed that this case could proceed on the legal issues as addressed above, and then depending on the outcome, if evidence of individual grievor's was necessary, that evidence could be put before the board. Given this agreement, the board therefore, ordered that all the grievances filed regarding the issue before me be consolidated, provided that each grievor had received notice of the hearing.

The Evidence

In addition to documentary evidence admitted by agreement of the parties, the employer called Gregory G. Simmons, Director of the Transition Planning Unit, MCS. Mr. Simmons testified that he has been with the ministry for thirty-two years, and has been at the Transition Planning Unit since 1999. As Director he is responsible for the human resources issues that arise as a result of the employer's major restructuring of the provincial prison service. The restructuring began in 1996. The original plan, which was revised in May 2000, was to reduce the number of provincial correctional facilities from forty-five to eighteen. In May 2000 additional institutions were included in the restructuring. Mr. Simmons testified that a fundamental premise of the project was that the restructuring was " bed neutral," that is, there would be neither an increase nor decrease in the number of offenders. However, since those projections the actual number of offenders on remand, has increased 43% across the Province.

Mr. Simmons referred the board to a list of closing institutions attached to the May 2000 information "Backgrounder" published by the ministry. He noted that Brantford Jail was scheduled to close in Fall 2000. He said it would close when the ministry can access new beds but it will not happen until spring of 2002. Brockville Jail was to close in Winter 2002 but it’s not clear now when it will close. Mr. Simmons testified that this was generally true of Mimico Correctional Centre, Rideau Correctional and Treatment Centre, Stratford Jail and Whitby Jail. He stated that the ministry is considering the possibility of not closing some facilities given the increase in numbers of offenders. He also noted that none of the OM16s at the above institutions have received a surplus notice.

Mr. Simmons testified further that the restructuring of the correctional service was a unique situation, which required implementation over time. The problem for the employer was how to move from the old system to the new one. Managers were needed in both until the transition was complete. The Staffing Operating Policy in place for such change seemed to give employees in the institutions which closed first an advantage. So the ministry sought special provisions to cope with the transition, which were approved by cabinet in the "Addendum to the Staffing Operating Policy" (the Addendum). The Addendum which is linked to the end of the transition plan, expires March 31, 2004. The Transition Planning Unit also ceases to exist then.

It was Mr. Simmon's evidence that by May 2000, given the decision not to fill vacancies in the last few years, the employer thought that there would be jobs for everyone. The employer held a competition for OM16 positions, which was posted June 22, 2001, open to classified and unclassified employees in the ministry. Mr. Simmons estimated that this competition was for approximately 200 positions. The employer decided to allow bargaining unit members to apply, because, in its view, people who had held acting OM-16 positions, deserved a chance to compete. The job posting indicates vacancies in closing, existing and future facilities.

On cross-examination Mr. Simmons agreed that the institutions in which the grievors work are still slated to be closed. He agreed further that while there were some 200 vacancies, none of the grievors are going to be transferred into a vacancy. Mr. Simmons said that the purpose of the Addendum is for stability in staffing not for stability for individuals. While he reiterated that management thought all the OM16s would get jobs, he acknowledged that the potential exists that one of the grievors would not get one of the 200 positions.

References to documentary evidence will be made as is necessary in the reasons for the decision.

The Employer’s Submission

Mr. Marvy argued that the evidence showed that none of the grievors institutions have closed. There are only proposals to close them. No one in these facilities has received a surplus notice. In counsel's submission the grievors cannot say that they ought to have been surplussed, and that at its best, the grievors’ case is premature. He argued that the only way the grievors are entitled to section 14(2) of Regulation 977 is if they have been released pursuant to section 22(4) of PSA. Counsel cited Ministry of Education and Training v. Vince Goodall P/0017/99 (Agarwal) where the grievor on a leave of absence was not entitled to a direct transfer under section 14(2) of Regulation 977 until he returned from the leave.

Counsel argued further that Grievance Settlement Board decisions regarding 22(4) of the PSA and Article 24 of the OPSEU collective agreement may be of assistance, by way of analogy. Article 24 provides bargaining unit members with certain measures of job protection, including, inter alia, the possibility of assignment to vacancies. In OPSEU (Union Grievance) and Ministry of Community and Social Services 2507/86 (Samuels) the board held that there had to be a "clear likelihood of layoff" before Article 24 was triggered. Counsel also cited OPSEU (Babb et al) and Ministry of Community and Social Services 1173/88 (Wilson); OPSEU (Barnes, Forsythe, Mercer) and Ministry of Community and Social Services 1259/89 et al (Dissanayake).

In the alternative Counsel for the employer argued that the Addendum makes it clear that the deputy minister has determined that direct transfers under section 14(2) are not acceptable. Therefore all OM-16s must compete for positions in a ministry wide competition.

In conclusion, Counsel argued that the grievances should be dismissed, as the grievors have no rights to vacant positions pursuant to the PSA and Regulations.

The Grievors’ Submission

Mr Camman argued that the grievors, all long term employees, work in institutions that are slated to close. He argued that the grievors rely on section 22(4) of the PSA and section 14(2) Regulation 977, and the evidence that there are current vacancies to claim that they are entitled to these positions. The issue before the board is whether there has been a release pursuant to section 22(4) of the PSA. Counsel argued that the language of section 14(2) of Regulation 977 covers a "proposed" release, and the rights that flow from the Act and the regulations are not dependent on getting official notice. Further, he argued that the evidence is clear that the grievors' positions will be abolished.

Counsel also submitted that the competition for filling the vacancies, open to both classified and unclassified employees in the ministry, contravened the grievors' rights under the PSA and Regulation. Counsel submitted that the grievors' recognise that OM-16s may have to compete against each other: the grievors object to having to compete for an OM-16 position with those outside the position.

Counsel for the grievors argued that the Addendum is intended to cover management and excluded employees. There is nothing in it to suggest that it was intended to cover bargaining unit employees. Further, there is nothing in the Addendum to suggest that grievors are not acceptable to be transferred to vacant positions.

Counsel argued in sum that if an OM-16 is going to lose his/her job, then the employer must play by the rules. In this case it must comply with section 22(4) of the PSA and section 14(2) of Regulation 977.

Counsel asked the board for a declaration that the grievors are entitled to the rights which flow from section 22(4) of the PSA and section 14(2) of Regulation 977.

Decision

The issue before me is whether the grievors have been released pursuant to section 22(4) of the PSA and are entitled to the protection of section 14(2) of Regulation 977 passed pursuant to the PSA, and if so whether the competition of OM-16 vacancies across the ministry posted on June 22, 2001 violated those entitlements.

While there is no PSGB jurisprudence to assist me in making this decision, Counsel for the employer cited several GSB decisions where the reasoning of the board was helpful. The GSB considered the issue of when surplus rights are triggered in the context of the bargaining unit. In Union Grievance (2507/86) vice-chair Samuels had to decide when some 100 bargaining unit employees in a facility for developmentally handicapped people, slated to be divested, were entitled to the surplus protections of Article 24 of the then current collective agreement. Article 24 provides certain protections to surplus bargaining unit employees, as section 14 of Regulation 977 provides for management and excluded employees. The union claimed that the employees were entitled to Article 24 protections in December 1986, immediately after the minister’s announcement that the facility was to be closed. The employer’s view was that Article 24 would be invoked, if and when employees decided not to take a job offer with the new employer and were thus declared surplus. So the issue was both when the employees were declared surplus and when Article 24 was “triggered.”

Article 24 begins with the words “Where a lay-off may occur…” The board considered what “may occur” means holding as follows:

Given the elaborate and comprehensive machinery provided in Article 24, the parties could not have intended to start up the machinery if there was only a vague possibility that an employee might be laid off. In our view, there has to be a clear likelihood that the lay-off will occur before an affected employee can take advantage of Article 24.

The board here concluded that it was clear from the announcement of the minister that the centre was to be divested that all the employees would be affected. The divestment clearly would lead to lay-off of all the bargaining unit employees. The board went on to hold that Article 24’s provision “where an employee is identified as surplus…” (emphasis added) does not require management to do the identifying. The board reasoned that identification of lay-off occurred when the minister made the announcement that the centre would be divested. Thus the protection of Article 24 was “triggered” then. The facts in Vice-Chair Samuel's case are almost identical to the one before me. And the argument that it was up to the employer to formally identify the employees as surplus before Article 24 protections were engaged was rejected.

Article 24 and section 14 (2) of Regulation 977 are similarly worded. As Counsel for the employer noted, section 22 (4) of the PSA gives the deputy minister the discretion to release a public servant whether in the bargaining unit or in management or excluded positions. If the employee is in the bargaining unit then the collective agreement applies; if management, the regulations apply. Section 14 (2) of Regulation 977 is worded similarly to Article 24. Section 14 (2) provides.

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 he or 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 positron occupied by the civil servants,

the deputy minister of the ministry shall transfer the civil servant to the vacant position. (emphasis added)

The language 'where it is proposed to release' and 'where a lay-off may occur' are substantially the same. As noted earlier vice-chair Samuels decided that the question for the board in these cases was whether the evidence supported a finding that there was a clear likelihood that the employee was to lose his/her job.

This decision was considered in Barnes et al., and the test as articulated by vice-chair Samuels for when Article 24 is engaged was cited. The grievors argued that when the employer decided to reorganise their work-place and establish a new position, thus phasing out their positions, they should have been declared surplus and therefore would have been entitled to Article 24 protections. The board said that “the whole case depends on whether at the relevant time, there was ‘a real likelihood’ that the greivors RC3 positions would be abolished. “The board found that there was clear evidence that the employer had decided not to abolish RC3 positions with incumbents and therefore Article 24 was not triggered.

If I apply the same kind of analysis used by the GSB cases, the first question I must address is whether there is a “clear likelihood that a lay-off” or surplus of the grievors will occur. In the case before me it is clear that the grievors will all lose their positions when their institutions close. Documentary evidence attached to the employer’s “Addendum to the Staffing Operating Policy” (approved Nov. 16, 2000) noted that “approximately 320 management and excluded positions will be abolished during this time.” Counsel for the employer argued that the grievors are still needed and may well not receive surplus notices at all. The evidence of the considerable restructuring and elimination of 320 management and excluded jobs, does not support this submission. Moreover, the witness for the employer acknowledged on cross-examination that it is possible that not all of the grievors will get positions. Also, although there is some evidence to suggest that some institutions may now not close, this is only a possibility. Certainly, all the documents support the minister's announcement that the grievors institutions will close. So, I have to conclude that when the minister announced that the grievors' institutions would close, this was a clear indication that the grievors would be released from employment.

The announcement of the closing of the institutions was pursuant to the exercise of the deputy minister's discretion under section 22 (4) of the PSA to release employees because of a material change — in this case the radical restructuring of the Ontario prison system. Thus with this announcement the grievors became entitled to the rights that are provided in section 14 of Regulation 977.

Having carefully reviewed the Addendum to the "Staffing Operating Policy." I am satisfied that there is nothing in the policy which purports to remove or alter rights which flow from Regulation 977. The policy is intended to apply "when an institution closes." Having been notified of being released an OM-16 may or may not seek a vacant position in another institution. If the OM-16 does not apply or does not get an OM-16 position in an institution that is not closing, then the Addendum applies.

In conclusion, I find that the grievors were declared surplus when the minister announced the closing of their institutions. Thus they are entitled to the protections of the section 14 of Regulation 977. This permits them to seek suitable vacant positions and they therefore have first priority in filling those positions if they meet the conditions under the regulation. Thus I find that the job competition, in so far, as it permitted non-OM-16’s to apply to and get positions in continuing or new facilities was held contrary to the PSA and Regulations 977.

Counsel for the grievors acknowledged that if more than one OM-16 was seeking the same position, a competition would be appropriate. The grievors have never complained about competing within their own classification. What they object to is competing for OM-16 positions with those who are not OM-16.

I shall remain seized to hear any evidence and argument, if required for a remedy in this case.

Dated at Toronto, this 14th day of January, 2002.