P-2001-0013

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Tom Sawyer et al.

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE GRIEVOR

Tom Sawyer, Grievor Zoltan Ronkai, Grievor’s representative

FOR THE EMPLOYER

George Parris Counsel Ministry of Government Services

HEARING

May 3, 2006.

Decision

This decision deals with a remedial claim resulting from the grievor’s July 2, 2001 grievance. This was originally a part of a group grievance filed by several Operational Managers from Guelph Correctional Centre, claiming direct assignment to new positions as they were in an institution slated for closing. The grievance was settled when the grievors were offered direct assignments to the facility of their choice, except for Mr. Sawyer’s remaining claim for travel expenses. He eventually received a direct assignment to a position of his choosing, but still seeks compensation for travel time and expenses which he alleges were incurred due to the delay in giving him a lateral transfer. In a preliminary decision dated April 13, 2005, the Board denied the employer’s preliminary objection and held that the grievor would be given an opportunity to attempt to prove his case for the additional remedial relief he requests.

The background facts are set out at some length in the preliminary decision and need not all be repeated here. Suffice it to say that, as part of a major restructuring of Ontario’s prison system, the employer conducted a mass competition for Operational Managers, with a posting date of June 22, 2001. The grievor applied for a position even though he felt he should not have to compete, as he was already a confirmed Operational Manager. As a result of that posting, he received a position at Ontario Correctional Institute (OCI), which was also slated to close, but at a later date than Guelph Correctional Centre. He took the position but also signed the group grievance, preserving his rights to claim a lateral transfer as well. The grievance was based on the proposition that job-threatened Operational Managers were entitled to a lateral transfer and should not have to compete for their own jobs. This position was upheld in the decision known as Williams, et al., (P/0008/01, et al.), dated January 14, 2002 (Leighton) to the extent that the competition should not have been open to those who were not in the classification OM-16, Operational Managers. As a result, the grievor’s grievance was allowed to the extent that, in December 2002, he was asked what position he would like to be transferred to. He chose Maplehurst Correctional Complex, and was transferred there in June 2003. His claim is that he is also entitled to travel time and expenses from March 22, 2002, when he reported to OCI and June 16, 2003, when he reported to Maplehurst. He saw the job at OCI as a temporary position because the institution was slated to close, and therefore the job would not be continuing indefinitely.

The question to be decided here is whether the grievor is entitled to be paid for travel time and expenses due to the delay between his assignment to OCI and his eventual assignment to Maplehurst. A remedy to a grievance is always intended to put the grievor, as far as possible, in the position that he would have been had the breach of his terms and condition of employment not occurred in the first place. This group grievance was allowed as a result of the Williams decision, cited above, when the employer decided to apply that decision to the grievor rather than re-litigate the issue. What that decision found flawed about the 2001 competition was that it allowed people who were not Operational Managers to apply to and get positions in continuing or new facilities (see page 9 of the decision). As noted in that decision, as well, the Operational Managers did not object to competing with other Operational Managers if more than one was seeking the same position. Nor did the grievor take a different position on this point.

The question becomes: what is necessary to put the grievor in the position he would have been in if the competition had excluded candidates other than Operational Managers from the outset? Were the travel time and expenses he incurred commuting to OCI a result of the employer’s having included candidates in the original competition who were not Operational Managers, including members of the bargaining unit?

The employer’s position is that the grievor has not shown that there is a causal connection between the travelling he did to OCI between 2002 and 2003 and the flaw in the original competition. In other words, counsel argues that it has not been proven that the grievor would have been assigned to Maplehurst any sooner, had the competition been run in the manner authorized by the Williams decision. In support of this proposition, counsel called evidence from Barry Thomas, who was involved as manager of transition planning for management staff at the relevant time. Mr. Thomas testified that the demand for jobs at Maplehurst during the 2001 competition was very high. It was probably the most popular place for candidates from the western and central regions, as it is near the Greater Toronto Area, but not in it, and is near Highway 401, allowing for convenient commuting from a number of locations. He noted that, where more than one job-threatened manager wants a position, a competitive process is used to determine the successful candidate. At the time of the 2001 mass competition, Mr Sawyer would have been in competition with a large number of managers for the positions at Maplehurst. Mr. Thomas testified that there is “no way” the grievor would have gotten a position at Maplehurst on the first round, given his low seniority related to other Operational Managers. Mr. Sawyer had been confirmed as an Operational Manager effective April 30, 2001, only a few months before the June 2001 posting. Mr. Thomas testified that Mr. Sawyer might never have gotten to Maplehurst - despite the fact that he is a loyal and dedicated manager - that the reason he has a position at Maplehurst now is due solely to the way the employer chose to implement the Williams decision – by giving any manager who wanted to move his first choice of position, subject to operational needs in the timing of the actual move. There was originally a cut-off date which technically did not apply to Mr. Sawyer and two other managers, because of their date of hiring as Operational Managers, but the employer later decided to include the three junior managers in the implementation of the Williams decision.

For his part, the grievor maintains that he should have received payment for travel time and expenses because the assignment to OCI was temporary, as he was going from one closing institution to another, and, in his view, travel expenses go with temporary assignments. He feels that he is owed payment for travel time and expenses for the time he was not assigned to a non-decommissioning facility. He says he never thought the assignment to OCI was permanent as it had been announced in 1996 that it was closing and he had heard many allusions to its status as a closing institution thereafter. In the letter offering him the position at OCI, he was offered access to the Ontario Government Relocation Plan which contains provisions for covering some relocation expenses. If OCI had not been closing, the grievor indicated he would have moved closer to it, rather than commute as he did since he believed it was a temporary situation. If he had been assigned to Maplehurst, given the shorter commute, he said he would not have moved his residence.

The grievor testified that he had been asked to indicate five choices in the 2001 competition. His first two were GATU, the treatment unit at Guelph, and Maplehurst, followed by Hamilton, one of Stratford, Vanier or Brantford as his third choice, and OCI in Brampton as his last choice. All but two of these were on the list of decommissioning facilities. Although GATU was his first choice, he had anticipated that he would be assigned to his second choice, Maplehurst, because GATU was slated to close shortly after. He testified that about four Maplehurst vacancies were filled from the 2001 competition. At the time, he objected to the fact that he was not assigned to Maplehurst, and was told that operational requirements meant that he would not be assigned to Maplehurst, that he was needed at OCI as they were short of Operational Managers. He reported to OCI the day before the 2002 OPSEU strike.

The parties stipulated certain other facts relating to two Operational Managers who received some travel expenses, pursuant to agreements with their superintendent. These were Doug Chilton at Guelph Correctional Centre and Debbi Acomb at GATU. The latter stayed at GATU because she had been successful in a competition of her peers to stay at GATU. When GATU closed she chose to be covered by an addendum to the Staffing Operation Policy, which guaranteed two years of temporary work, during which she was assigned to Vanier Centre for women, with the opportunity to discuss travel expenses with the superintendent. She went there on temporary assignment, and while she was there a vacancy occurred for which she had priority. Under the addendum, certain travel expenses were paid, in the situation where the managers to which it applied no longer had home positions. The grievor noted that Ms. Acomb had been appointed as an Operational Manager at a later date than he was.

Mr. Chilton also chose the application of the Ministry’s addendum policy for job-threatened Operational Managers and took a temporary assignment at Burtch Correctional Centre. He received a letter saying that travel expenses were to be determined with the superintendent in accordance with the addendum provisions. After two years of working under the terms of the addendum, Mr. Chilton retired, as he had his Factor 80.

Both parties spent a good deal of time on the question of whether the grievor was entitled to travel expenses on the basis that the assignment to OCI should be considered temporary. Mr. Thomas testified that travel expenses are normally paid when the employer asks an Operational Manager to go somewhere for a defined period of time. What expenses would be paid depends on the circumstances. If the transfer is at the employee’s request, travel expenses are not paid. Employer policy provides that at the time of a temporary assignment, the terms and conditions of the temporary assignment, including any travel expenses are to be put in writing. There was no agreement providing payment for travel time or expenses for the period of the grievor’s time at OCI. Mr. Thomas said that when the grievor was transferred to OCI, that was his home position, by virtue of having competed and accepted the OCI position. The documentation of the transfer filed with the Board states that Mr Sawyer moved to the new home position at OCI effective March 11, 2002. Although Mr. Sawyer’s position at OCI was permanent, Mr. Thomas said he retained his job-threatened status, so had priority for other vacancies. When Mr. Sawyer went to OCI in 2002, it was slated to be open until 2007, and Mr. Thomas testified that he would never have put someone in a temporary position for five years. As it turns out, OCI is no longer slated to close.

In final argument on behalf of the grievor, Mr. Ronkai submitted that an assignment resulting from the 2001 mass competition, such as the grievor’s assignment to OCI, was invalid as the competition was held in contravention of Regulation 977. As a result of the application of the Williams decision, he was eventually assigned to Maplehurst, where it is submitted he should have been in the first place. In these circumstances it is argued that the grievor’s assignment to OCI should be viewed as temporary and he should be entitled to compensation for travel time and expenses while there. In others words, the damage to him caused by not being put into Maplehurst earlier should be remedied by payment of travel time and expenses for the interim period. In the grievor’s view, the delay in allowing the grievance caused him a lengthy period in a temporary assignment at OCI which involved significant cost to him, which should be borne by the employer.

The employer’s answer to this argument is that in order to uphold that position, the Board would need to find that the grievor would have gotten the position at Maplehurst at the time of the original competition or at some point sooner than he did if the competition had been held correctly. In counsel’s submission, the evidence does not support a finding that, had the competition been held correctly, i.e. not included candidates who were not Operational Managers, the grievor would have received a position at Maplehurst earlier than he did.

First of all, employer counsel argues that if the grievor had been given his first choice in June or July of 2001, it would have been GATU, not Maplehurst, to which he would have been assigned. Counsel notes that despite the fact that it was a de-commissioning institution, the grievor chose to give priority to GATU, not Maplehurst. Counsel argues that, had he gone to GATU, he would not have been in any better position in relation to Maplehurst. GATU eventually closed about the time the grievor went to Maplehurst. In fact, he might well have been in a worse position, as there is no evidence that there would have been a vacancy for him at Maplehurst at that time.

Given the fact that only two of the grievor’s five choices in 2001 were non-decommissioning institutions, counsel submits that it would be misplaced to conclude that the grievor is somehow owed damages because he was assigned to a decommissioning institution. Furthermore, it is the employer’s position that there is no general entitlement to travel expenses flowing from the fact that the grievor was assigned to a decommissioning institution. Counsel submits that the preponderance of the evidence is that the assignment was permanent, and travel expenses are not paid for permanent positions. Nor are they paid for temporary ones, unless there is a specific agreement to that effect. In any event, in the face of the employer’s offer to pay relocation expenses when he was assigned to OCI, the grievor should not be eligible for travel expenses when he turned that down, in the employer’s view. Counsel emphasizes that OCI was somewhere the grievor asked for himself, and that if he did not want to go there, he could have declined the position. Counsel submits that it was sensible for the grievor to ask for OCI because it was one of the facilities closer to where he lived, and it had a longer anticipated life span than Guelph.

Counsel also underlines that Mr. Sawyer and two other Operational Managers were the three managers with the least experience in the province in the relevant period of time. The Board is invited to reject a conclusion that, despite all the displaced managers, including the twenty other managers from Guelph who grieved, that he should have been put into Maplehurst at the time. In order to accept that conclusion, counsel submits there would have to be evidence that the grievor was superior to all the Operational Managers who applied to Maplehurst. It is suggested that it is unlikely that that would be so, given the greater experience of all but two other managers.

The issue before me is whether the grievor requires the remedy of travel time and expenses in order to be put in the position, as closely as possible, to the position he would have been had the 2001 competition been run as the Williams decision found it should have been. This requires an attempt to see how things would have gone if one could turn the clock back, and do it over.

In doing so, it is important to keep in mind that the fault found with the 2001 mass competition in the Williams decision was that the employer allowed non-Operational Managers to apply. It is necessary to ask whether the additional candidates somehow deprived the grievor of an earlier assignment to a Maplehurst vacancy. Would the grievor likely have gotten one of the Maplehurst vacancies rather than OCI or one of the other choices he put down when asked in 2001, if the competition had been run just among job-threatened Operational Managers? One indicator that the presence of the extra candidates might have had a negative effect on the grievor’s chances would be if any non- Operational Manager received any of the vacancies at Maplehurst in 2001. But there is no evidence of that. Further, there is no evidence that there was any reason why the grievor should have gotten the Maplehurst vacancies over the people who did get them at the time, or at any time after that. On the contrary, it is a reasonable inference from Mr. Thomas’ evidence that is unlikely that the grievor, one of the three Operational Managers with the least experience in the province, would have gotten one of the few positions at the very popular Maplehurst complex, even if there had been no non- Operational Managers in the pool. Further, there is no evidence that if the competition had been held as it should have been, the grievor would have likely arrived at Maplehurst at any time close to the time he went to OCI. In fact, Mr. Thomas’ uncontradicted evidence went further to indicate that the only reason the grievor got to Maplehurst at all is the way the employer decided to implement the decision, by simply giving each grievor who was still interested their first choice at that time, but managing the vacancies by postponing the reporting dates until operational needs allowed the transfer. In the face of this evidence, I have no basis on which to find that the flaw in the 2001 competition is responsible for the fact that the grievor did not receive an assignment to Maplehurst sooner.

Nor is the evidence convincing that any delay in applying the Williams award to the grievor resulted in a delay in his transfer to Maplehurst. Again, the uncontradicted evidence is that it was only because of the special circumstances of the employer’s decision to implement the Williams award in the way it did that meant that the grievor gained a position at Maplehurst at all.

As to the idea that the temporary nature of the assignment at OCI itself entitles the grievor to travel expenses, it would be necessary to show a causal connection between the flaw in the 2001 competition and such an entitlement. The evidence simply does not go that far. It appears very likely that if things had gone as they should have in 2001, the grievor would have been transferred somewhere other than Maplehurst. There is no evidence to support a finding that it is likely that it would not have been OCI, or not on a permanent basis. All of the evidence about the terms of his assignment to OCI indicate that it was intended as a permanent assignment. In particular, the offer of relocation expenses suggests the assignment was permanent. None of the usual indicators of a temporary assignment, such as a projected end date, or a discussion or agreement about travel expenses if the move was at the employer’s initiative were present. Although the grievor’s interpretation of any assignment to a decommissioning institution as temporary is understandable, the evidence does not support a finding that such a definition was part of the employer policy or any identifiable term or condition of his employment. Further, the mere fact of being a temporary assignment does not create an automatic entitlement to travel expenses. As well, there is no evidence that this would have been different if there had been no candidates other than Operational Managers in the 2001 competition, or if the grievor had been assigned to GATU or another one of his choices rather than OCI.

In sum, there is no evidence sufficient to base a finding that if the competition had been flawless in 2001, it is likely that the grievor would have ended up incurring no greater travelling expenses than he would have had at Maplehurst, or in a temporary assignment with entitlement to travelling expenses. In particular, the evidence is not persuasive that the grievor was in a situation so similar to Ms. Acomb or Mr. Chilton, such that their receipt of travel expenses would suggest that it was also necessary that he should receive them to adequately remedy his grievance. The grievor did not allege that he should have been considered to have no home position under the addendum as they were. Rather, he argued he should have been given a new home position at Maplehurst earlier than he was.

In the result, for the above reasons, it is my conclusion that the evidence does not support a finding that there is a causal connection between the flaw in the 2001 competition and the fact that the grievor incurred travel expenses for which he has not been reimbursed. In the result, the grievor’s claim for additional remedial relief is denied.

Dated at Toronto this 3^rd day of August, 2006