text: HomeMy WebLinkAbout1995-0280UNION96_10_23 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OwrARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , ,.- REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. SUITE 2100, TORONTO ON MSG 1 Z8 TELEPHONf:/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 280/95 OPSEU # 95U019 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General & Correctional Services) Employer BEFORE S Kaufman Vice-Chairperson FOR THE R Davis GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE D Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING November 9, 1995 January 30, 31, 1996 April 26, 1996 May 28, 1996 June 7, 28, 1996 1 DeClsion ,- This is a union grievance alleging that the employer "has violated other employment-related legislations, Employment Standards Act, s. 56.3 and the Labour Relations Act, s 64.2, s. 81, and Article 24, 25 of the OPS Collective Agreement" It seeks the rescision of the lay-off notices given to bargaimng unit staff and the application of the OPS collective agreement to any subsequent lay- offs of Versa Foods bargaining unit staff The grievances of the individual grievors were dlsmlssed for reasons provided in my Interim DeCISion In this matter earlier this year The essential dispute in thIS matter is whether the employer has correctly interpreted and applied Part XIII.2 of the Employment Standards Act (the ESA), R.5 0 1990, c E.14 as amended. Part XIII.2 of the ESA came into force on November 5, 1992 when BIll 40, The Labour RelatIOns and Employment Law Statute Amendment Act, SO 1992, c. 21 received royal assent. Part XIII.2 provides PART XIII,2 SUCCESSOR EMPLOYERS 56.3 In this part Definitions previous employer" means the employer who ceases to provide services at a premises, successor employer means the employer who begins to provide, at the premises, services substantially similar to those provided at a premises by the previous employer. 56.4 (1 ) This Part applies if one employer ceases to Krovide J;,articular Application services at a premises after the 4th day of une, 19 and another employer begins to provide substantially similar services at the premises. Non-Application (2) This Part does not aphly if the previous employer sells to the successor employer t e business of providing the services at the premises. Definition (3) In this section, services means services provided directlv or indirectly by or to a building owner or manager that are related to servicing the premises, includIng building cleanin~ services, food services and security services but excluding the fo lowing: 1 Construction, 2. Maintenance other than maintenance activities related to cleaning the premises, 3. The produchon of rcoods other than goods related to the provision of ood services at the premises for consumption on the premises. ") ... 56.5 (1 ) This section applies to a manager or owner of a premises who ,-- Notice to (a) ceases to hrovide rarticular services at the premises and Employees uses anot er emp over to provide them, (b) ceases to use an employer to provide particular services at the premises and uses another employer to provide them, or (c) prOVides particular servICes at the bremises after ceasing to use another employer to provide t em. Idem (2) The owner or manager, as the case may be, shall notifh the employees of the previous employer of the date on w ich the previous employer ceases to provide the services at the premises. Idem (3) The notice must be given in writing at least fifteen days before the date on which the previous employer ceases to provide services. 56.6 (1 ) If a successor employer replaces a previous employer who is Mandatory providing services at the~remises, the successor employer shall Job Offer make reasonable offers 0 available positions to those persons, (a) who are in a continuing or a recurring and cyclical employ- ment relationship with the previous employer immediately before the successor employer begins providing the services at the premises; and (b) whose principal place of work with the previous employer is the ~remises affected by the change in the employer provi ing the services. Offers by (2) The successor emplo~er shall make offers to the persons employed Seniorit y by the previous emp oyer in descending order of each person's senIority with the previous employer until all positions are filled. Exception (3) The successor employer is not required to offer positions to persons who are not qualified to perform the services required of them or would not be qualified to do so with a reasonable period of training. Offers to (4) The successor employer shall use every reasonable effort to fill all other positions at the premises with persons who were emfeloyed by the persons previous employer before the successor employer of ers a pOSition to any other person. Nature of (5) The position offered must consist of performing, at the same work premises, the same work that the raerson did for the previous employer, if such a position is avai able. Idem. (6) It such a position is not available, the Kosition offered must consist of alternative work that is comparable avmg regard to compensa- tion, hours and schedule of work, Kerquisites, quality of working environment, degree of responsibi ity, job security and possibility of advancement. 56.7 (1 ) For the purposes of Parts VII, VIII, Xl and XIV a person If offer employed by the previous ema'oyer who accebts a position offered accepted by the successor employer is eemed to have een employed by the successor employer for the ~eriod dUrIng which he or she was employed by any previous emp oyers. Application (2) In subsection (1), previous employers includes only the employer who employs the employee on the 4th day ot June, 1992 3 and any successor emf.loyers who employ him or her before the ~ successor employer re erred to in subsection (1). 56.8 (1) A person who declines a position offered by the successor It offer employer under section 56.6 and who ceases to be employed by dl'Clined the previous employer is deemed, for the purposes of this Act, to have resigned his or her position with the previous employer, Limitation (2) If the successor employer offers the person employment that does not begin immediately after his or her emtofj'ment with the previous employer ends and the person ec ines the offer, the person is not deemed to have resigned his or her emhlo1ment with the Krevious employer and the successor employer s al comply wit Part XlV. 56.9 (1) If the successor employer does not offer a position to a person No offer employed bl the previous employer, the successor employer shall made comply wit Part XIV Deemed (2) For the purposes of Part XIV, the successor employer, and not the employer previous employer, is deemed to have been the employer of the person. 56.10 (1) If an employment standards officer finds that the successor Failure to employer failed to offer a position to a person when the successor comply, no employer was reJuired to do so under section 56.6, the employ- offer made ment standards 0 ficer shall determine whether the person to whom the offer should have been made has sufferea a loss of wages and other emtoyment benefits as a result of not receiving the offer and, if so, s all determine the amount of the loss. Idem, offer (2) An employment standards ofticer who finds that a job offer made not reasonable by the successor employer is not a reasonable offer shall determine whether the person to whom the offer was made has suffered a loss of wages and other employment benefits as a result and, if so, shall determine the amount o(the loss. Accumulating (3) The amount of the loss continues to accumulate until the successor amount emelo~er makes a reasonable offer of employment to the &erson, until t e person is reinstated or until the person notifies t e succes- sor employer in writing that he or she no longer wishes to receive an offer, whichever occurs first. Deemed wages (4) The amount determined to be the loss shall be deemed, for the purposes of this Act, to be wages owing to the person by the successor employer. Deemed (5) A person who may have suffred a loss of V\ ares and other employ- employee ment benefits.is deemed to be an employee 0 the successor employer for the purpose of pursuing remedies under sections 65, 66,67 and 68 against the successor employer. Subsequent (6) If the successor employer offers a kOSition to the person after an job offer employment standards officer ma es a finding under this section against the successor emplover and the person to whom the offer is made declines it, the successor employer shall comply with Part XIV Deemed (7) For the purposes of Part XIV, the successor employer, and not the employer previous employer, is deemed to have been the employer of the person. - 4 Amount of (8) The amount of the successor employer's obligations under Part .- obligations XIV is calculated using the wage rate earned by the person while he or she was employed by the previous employer. 56.11 (1 ) Upon request, an employer providing services at a tremises shall Information ~ive the owner or the manager of the premises the ollowing mformation about the employees who are providing the services. 1 A job description for each of the positions held by the employees. 2. The wage rates for each position. 3. The number of persons employed in each position at the premises. 4. A list of persons empl~ed in each position, each person's seniority, an their hours and schedule of work. 5. The name of each emplo~ee and his or her address as it appears m t e employer's records. Same (2) Upon request, the owner or the manager of the premises shall give the information described in subsection (1) about the employees who are providing the services at the premises on the request date, (a) to a person who becomes a successor employer providing the services; or (b) to the bargaining agent for employees to whom the owner or manager has given notice under section 56.5. Same (3) Upon request, the owner or the manager of the premises shall five the information described in para~aphs 1 to 4 of subsection 1) about the employees who are provtdin~ the services at the premises on the request date to a person w 0 may become a successor employer providing the services but, in the information described in paragraph 4 of subsection (1), the names of persons employed in each position need not be given, Use of (4) A person to whom informatIon is gIven under this section shall use information the information only for the purpose of complying with this Part. Confidentiality (5) A person in possession of information ~ven under this section shall not disclose it except as authorized by t is section. Regulations, (6) The Lieutenant Governor in Council may make regulations, Information to Ministry (a) requiring employers providing services at premises, or re~uiring owners or managers of premises, to file the in ormation described in subsection (1) with the Ministry' (b) governin& the tilin~ of information required by regula- tions ma e under cause (a), 56.12 If a person fails to comply with the provisions of this Part, an emftloyment Employment standards officer may order what action, if any, the person shal take or standards what the ~erson shall refrain from doing in order to constitute compliance officer may with this art and may order what compensation shall be paid by the make order person to the Director in trust for other persons. -~~-~ 5 -- The references to Part VII, VIII, XI and XIV in the foregoing passage pertain to the legislated requirements regarding Public Hohdays, Vacation with Pay, Equal Pay for Equal Work and minimum notice of termination of employment, respectively Part XIII.2 was in force and effect at all material times for the purpose of this grievance It was repealed by s. 73 of Bill 7, the Labour Relatzons and Employment Statute Law Amendment Act, 1995, SO 1995, s. 1, which received royal assent on November 10, 1995 From as early as May, 1985, until January 15, 1995, a series of contractors provided the staff and management to operate the kitchen and provide meals to the staff and inmates at the Metro Toronto East Detention Centre (MTEDC), a facility of the employer Ministry of the Solicitor General and Correctional Services. Versa Food Services was the contractor in 1985 Canteen of Canada, held the contract for about 4 years. Dalmar Foods held the contract thereafter for about 3 years. From June 1, 1992 to January 15, 1995 the services were again provided by Versa Food Services. Mr. George Bushell was the Food Services Manager employed by each of the afore-mentioned contractors at MTEDC, continuously from April ot 1985 until January 15, 1995 Commencmg January 16, 1995 the Ministry brought the food service function "in-house" and became a "successor employer" within the meaning of s 56.3 above Mr. Bushell retained his functIon as manager at food services, under the title "Manager, Food Services Area" On February 1, 1994, OPSEU was certified as the bargaining agent for the Versa employees and in about April of 1994 it served Versa notice to bargain. No collective agreement had been reached by OPSEU and Versa by January 15, 1995 The union understood by December, 1994 that the Ministry would be bringing the food services functions "in-house" effective January 15, 1995 and that some of the positions under the contract with Versa would be ellminated. Pnor to January 16, 1995, the staff complement was 17, including the Food SerVIces Manager, the Assistant Manager, 9 full-time Cooks, 3 Helpers, 1 temporary Helper, 1 full-tIme Cashier and 1 part-time Cashier. Each of 3 shifts, 4 a.m. to 12.30 p.m., 12.30 to 9 pm., and a relief shift, was usually staffed by a Cook 3, a Cook 2, a Cook 1 Ounior Cook) and a Helper. They provided serVlces in the kitchen and the staff cafeteria On January 15, 1995, the last day of the contract between the Mmistry and Versa, the following staff occupied the afore-mentioned positions (per Ex. 1, Tab 3) 6 MTEDC Start date with - lob Title Incumbent Seniority Dat~ Versa Services Food ServIces Manager George Bushell April 85 1 June 92 Assistant Manager T. Sidotti October 87 1 June 92 Cook 1 V Fraser May 86 1 June 92 Cook3 T Joyce July 87 IJune92 Cook :3 F. Quigley 29 January 91 1 June 92 Cook 2 A. Gouldbourne September 89 1 June 92 Cook 2 P McKenzie November 89 1 June 92 Cook 2 R. Ellison 28 January 91 1 lune 92 Cook 1 S. Storrod September 89 1 June 92 Cook 1 S. Pellegrini November 91 1 June 92 Cook 1 M. Butler October 92 10 Oct 92 Helper L. Klippel October 88 1 June 92 Helper J Delaney December 93 11 Dec 93 Helper L. Baldorado January 90 1 June 92 Helper-Temporary M. Adu August 94 Cashier B. Swain May 91 1 June 92 Cashier-PT L. DeFranco March 94 10 Mar 94 Commencing January 16, 1995, as a cost-saving measure, the cafeteria ceased to operate and the Assistant Manager, Cook 1, one Cook 3 and Cashler and Helper positions were eliminated. One of the two remaining tull-time Cook 3 positions became a permanent Part-time position (30 hrs / wk.) Three additional Cook 2 positions were created, for a total of six Cook 2 positlOns There are in total eight full-time classified Cook positions--two Cook 3 and six Cook 2. As well, two unclassified Cook 2 posltlons of up to 40 hours per week were created. Only one unclassIfied Cook 2 positIon was funded as of January 16,1995 Effective January 16, 1995, one shift was eliminated, and all statf began to work rotating shifts to maintam the 7-day-a-week serVlce Thus, immediately after January 15, 1995, one management position (Kitchen Manager), two classlfied Cook 3 positIons, and six classlfied Cook. 2 positions remamed along with one funded unclassltied Cook 2 posltIon and accordmg to Ex. 4, were allocated as follows 7 MTEDC Start date with -- lob Title Incumbent Seniority Date Versa Services Kitchen Manager G. Bushell April 85 1 June 92 Cook 3 V Fraser (former CK3) May 86 1 June 92 Cook 3 Part-time T. Joyce (former CK3) July 87 1 June 92 Cook2 A, Gouldbourne September 89 1 June 92 (former CK2) Cook2 P McKenzie November 89 1 June 92 (former CK2) Cook2 R. Ellison 28 January 91 1 June 92 (former CK2) Cook 2 P Quigley 29 January 91 1 June 92 (former CK3) Cook2 T. Sidotte (former AKM) October 87 1 June 92 Cook2 B. Storrod September 89 1 June 92 (former CKl) Cook2 D/C J Delaney 11 Dec 93 11 Dec 93 (former Helper) The Evidence: Mr. MItchell advIsed that fundIng became aVailable only after January 16, 1995 for two unclassified Cook 2 positions and that Ms. Delaney and Ms. Klippel, both former Helpers for Versa Services, were offered and accepted those positions commencing March 7, 1995 Ms. KlIppel, however, stated that she had been working as an unclassified Cook 2 since January 16, 1995 M. Butler, one of the three Cook 1s formerly employed at the Centre was not offered a position, Mr Bushell's uncontradicted evidence was that her employment ended on December 13, 1994, notwithstanding her presence on the list at Ex. 1, Tab 3 Mr Bushell originally hired Lucinda Klippel on October I, 1988 while Canteen of Canada was the contractor Ms. Klippel sald that she was hired as a Helper and worked In that capacity for about 2 months At that point one ot the cooks left, at whlch time she was glven that position. In late 1988 or early 1989, cooks were not differentiated by level, all were Cook 1, she adVised, and she was designated as a "second Cook 1" She worked at MTEDC as a "second cook" tor over 3 1/2 years, until about June I, 1992, during which hme she had full responsibility for cookIng meals Because she was experienCIng ditficulties around baby-sitting costs, due to the hours she was required to work as a cook, around Tune 1, 1992, she accepted a position as cart person/Helper, whlCh enabled her to leave regularly at 12.30 p.m. Mr Elhson took over her H .-- position. Mr Bushell contlrmed that while she was employed as a Helper, Ms Klippel filled in for Cooks 1 and 2 who were sick or unavailable Ms. Klippel said that while employed as a Helper, she filled m for the "second cook" /Cook 2, three to four times a month, and that she had full responsiblity for cooking meals when she filled in for the Cook 2. On one occasion she was the most senior person on shift. Mr Bushell described her as a very versatile employee In cross-examination he said that Ms. Klippel was not paid at the Cook 2 rate when, as a Helper, she filled in for an absent Cook 2, as he did not "adjust for a day", but that she "can do Cook 2" Mr. Mitchell sald that he was aware that Ms. Klippel had worked as a Cook 2 for the contractor Dalmar. Ms. Klippel advised that as a second cook/ Cook 2 she was responsible for the special diets, including cooking the food and keeping records of the foods and amounts served tor the special diets. As second cook she also baked cake, pies, apple crisp and apple squares, and prepared the regular as well as the special diet breakfasts. Before January 16, 1995, the junior cook/Cook 1 made the grilled cheese sandwiches, french fries, for the following day, peeled potatoes, cut vegetables, defrosted the meat, made salad, and, if on the menu, cooked the pancakes and the western omelettes. The Cook 2 made "the second meal", which was offered to staff, as opposed to the line meal for inmates As second cook, prior to June 1, 1992, she cooked hamburgers, fish & chips, steak and onions, and bacon and eggs for the staff cafeteria. As a Helper, she counted the meals on the carts and checked them against the number of ordinary and speCIal dIet meals required for each unit, and also cooked and baked on Helper shifts when the scheduled Cook 2 was absent. She had required no training when she had cooked and baked while a Helper. In January of 1995 she asked Mr. Bushell why Ms Storrod, a Junior cook/prep person/Cook 1, got a Cook 2 positIon when the Ministry took over the food services function. Mr Ellison (start date 28 Jan 91), Mr. Gouldbourne (start date September, 1989), Mr McKenzle (start date November, 1989), Ms Storrod (start date September, 1989) and Ms. QUlgley (start date 29 January 91) started to work at MTEDC after she did, and were offered full-time positions with the Mimstry She was told that the Mmistry assigned the poslt1ons by gomg from Job spec to Job spec and that there were no more Helper positions She said that she was oftered an unclassified Cook 2 position on Januarv 15 or 16, 1995, and has worked at MTEDC since the Mmistry took over the food services tunction. Since then, she said, the duties of the tormer Helpers have been performed by mmates under 9 .-' the supervision of the Cooks 2 and 3 OccaslOnally there have been more inmates working in the kitchen since January 16, 1995, as compared to the number before that date The Cook 2 has been assigned the duties of the former junior cook/ Cook 1 She later said that she first worked as an unclassified Cook 2 in April, '1995, her duties have remamed about the same, her hourly rate lS hIgher than it was when she was employed by Versa Services, but she gets no benefits Mr. Bushell hired Ms Swain as a Cashier in March, 1991 whlle Dalmar Foods was the employer. He described her duties as those of cafeteria cashier, and looking after the cafeteria food. Ms Swain described her duties as setting up the cafetena, putting water in the steamers, makIng salads and desserts, portioning helpings, putting together simple salads, serving meals to visitors and staff and doing the cash. She also helped out in the kitchen by preparing vegetables as done by the former prep person/Cook 1, by loading carts, and providing appropriate items for inmates' special diet plates. She said that while she was a Cashier she had satisfactorily performed the duties of a prep person/ former Cook 1 for 8 weeks on a full-time basis She agreed that a Cook 1 did not have the same level of responsibility as a Cook 2. She worked alongside Mr. McKenzie, then a Cook 2, and occasionally with Ms Quigley, then a Cook 3 On those occasions she had prepared the speClal diet trays, and had turned on the oven, put the chicken in it, put the rice in the steamer and turned the steamer off when the rice was done, and had put the food on the counter for portioning onto plates She had also been called in on weekends to fill in for absent Cashiers and prep persons/Helpers She acknowledged that she had never cooked a full course meal at the mstitution, but had put vegetables in the steamer, added ingredients to soup, and knew how gravy was made, and was certam that with a little training could have tilled any position in the kitchen. In cross-exammahon she described the Cook 3 position as the main superVISors who were responsible for the preparation of the mam meal and its distribution, for preparation of bed-time snacks, for clean-up, recordmg inmates' names and other paperwork, ensuring that knives were counted and everything was locked up, and other administrative responsibilities All staff pitched in to ensure that the necessary services were provided, such that delegation of tasks by the Cooks 3 rarely occurred Cooks 1 are dlrected by the menu established by the Kitchen Manager As a Cook 1 she had also prepared sandwiches Jnd food for those gomg to court. During the 8 weeks in which she replaced another 10 --- employee, she had been a prep person/Cook 1 and had also functioned as a cart person/Helper Mr. Bushell acknowledged that Ms Swam had replaced Ms. D'Andrea on the floor for 8 weeks while she was absent for medICal reasons, "as general help, I believe a cart position" He stated that Ms Swain had had "no cooking responsibilities" and "would have been" involved doing the cartwork and some of the prepwork. He had earlier testified that one of the primary functions of the Helpers had been to portion desserts, butter and jam, and load the inmate meal carts He also testified that, dependmg upon the meal load, Helpers also assisted the Cooks on the grill and e.g steaming vegetables. He later said that could not recall Ms. D'Andrea's classfication and duties, and that he believed she was "general help" and her duties included possibly peeling vegetables and potatoes He said he could not recall observing Ms. Swain do more than prepwork for carts, condiments, and peeling vegetables and potatoes In cross- examination he did not dispute that Ms. D'Andrea had been hired to replace Ms. Butler, who had been employed as a Cook 1, and that Ms Swain had replaced Ms. D'Andrea when she was absent for medical reasons. In cross-exammatIon, Mr. Bushell was asked to and dld not produce documentation to establish that either Ms D'Andrea or Ms Butler were Helpers. He said that he did not remember having seen Ms Swain doing any cooking He acknowledged having written a letter of reference for Ms. Swain, dated January 5th, 1995, which indicated that as a Cashier she "helped with cooking and a lot of prepwork", and in her spare time was" .helping out cooks "and" on occassion (sic) Ms Swam would fill m for cooks that were off. " He said that when she was filling in, she would have been working alongside another cook and would not have been responsible for a meal. When asked whether he was saying that people had to tell Ms Swain what to do as a Cook 2, he replied "that's quite possible" He then said she could cook and could help to cook, but that he would not give her full responsibility for a meal Mr Bushell testified that Ms. Delaney had been employed at MTEDC as a Cook 1 from June 1 to December ot 1992, and as a Helper from December of 1993 to January 15, 1995 Ms. Swain advised that Ms Delaney had been a cart person/Helper who had pertormed the same cooking tasks as her, after ensuring that their Cashier and Helper task.c.., had been done Mr Bushell advised that Ms Delaney's "work loads vaned" as a Helper and that she performed Cook 1 and 2 duties, relievmg an employee who was on vacatlOn, 1 1 ,- and another person absent due to a work-related mJury He sald that when Ms. Delaney replaced Cooks 1 and 2, she was paid at those rates. Ms. Swain was unable to contirm that Ms Delaney had replaced a Cook 2, but she acknowledged that Ms. Delaney had done more cooking than she had Ms. Klippel did not know whether Ms Delaney had filled in for absent Cooks 2. Mr. Bushell later acknowledged that Ms. Delaney was initially hired at MTEDC to replace a Helper, who was Ms. Baldorado's niece He did not agree that after December 1992, he had hIred a woman named "Sally" as a Helper to replace Ms. Delaney He said that he had records with him to show that Ms Delaney had originally been hired as a Cook 1 Those records were not requested and were not produced. He acknowledged that Ms. Baldorado had left the country for 8 to 12 weeks. Ms. Klippel stated that Ms. Delaney had not received any training to prepare meals In her position as Cook 2. Mr. Bushell said that he had no say in who was retained with the Ministry He acknowledged that pnor to January 16, 1995, Deputy Superintendent of Services Alex Mitchell asked him whether or not the Versa Services employees were qualified to do the work or would be qualified with a reasonable amount of traimng. He said that before January 16, 1995, he told Mr. Mitchell that all the staff could be qualified with training, he and Mr Mitchell had gone into more detail with respect to different staff members, he dId not discuss how much training each required, this discussion probably occurred "the week or so before the action taken", and they had several dIScussIons on the subjects, the more intense one having taken place a week before the takeover He agreed that the statement "all staff were capable" of filling any of the remaining bargaining unit positions would represent his final advice to Mr. Mitchell. Alex Mitchell has been employed at MTEDC smce January of 1977 and is currently Deputy Supenntendent of ServIces there He advlsed that the mmates had always been involved in aSSIsting the staff of the various contractors in the MTEDC kitchen, but not with the cookmg of the meals The Ministry provided the security training of the staff of the various contractors, and ensured that the contractor trained its staff 10 proper kitchen hygiene and other matters. MTEDC is a maximum security adult male facility with an operational capacity of 468, the 10mate populatIon can increase to 540 60 to 70% of the inmates are remanded 1Oto custody and are unknown quantItIes from a secunty pomt of Vlew He described the duties ot COs with respect to the meals for inmates. The Mimstry and Versa entered into an agreement dated Apnl 27, 1992, whereby Versa 12 would provide stipulated services to MTEDC for a period of 2 years after June 1, 1992, with an option to renew for a third year. The Ministry made a corporate deClsion to transfer the remaming employees of the outside caterer to the Ministry and the agreement with Versa required a 6-month extension, such that Bill 40 would apply at the point at which the Mmistry assumed direct responsibility for the delivery of food services at the mstitution. Versa agreed to extend the contract, which would have expired on May 30, 1994, for less than a year Mr. Mitchell agreed that the list at Tab 3, Ex. 1 was a list of the employees on staff before January 16, 1995. He said that he prepared a list of employees designating their pre-January 16, 1995 classifications, their start date with Versa and with MTEDC, their post-January 16, 1995 classifications and those with "No Job" (Ex. 4) That list was used to assess who would be offered jobs in relation to the amendments to the ESA, s. 56.5 and s. 56.6, introduced in Bill 40 Mr. Mitchell attended several meetings at regional office with other Deputy Superintendents and Regional Managers. He said that "basically" the advice that he provided regarding which employees would be offered pOSItIons under those provisions, was that contained in Ex. 4 and Tab 3 of Ex. 1 He also took a typewritten list of the responsibilities of the Cook 2 and 3 positions with him to regional office The responsibilities of the positions were not discussed with the Employment Standards Branch Officer present at some of the meetings The Cook 2 Position Specification (Ex. 5) was not prepared until after the employees to whom offers of employment would be made were determined He advised that the two Cook 3 positions existing after January 16, 1995 had new duties, which he described as "accepting responsibility to get meals out in time" and "we expected more from them" He said that after January 16, 1995, incumbents of the SIX Cook 2 positions had more responsibility for looking after the inmates and doing things "timely and effectively" The Posltion SpeCIficatIon for Food ServlCes Officer (Cook 2) at MTEDC provides the following' Purpose of position. To ~)repare and serve meals on an assigned shift and to supervise assigned inmate he pers in the kitchen. To perform other related duties as assigned / required, Duties and Related Tasks 80% Prepares and serves meals on an assi~ned shIft by pertorming such duties as. 13 - preparing food by cutting, cleaning, peeling, de. meats and vegdables and cookin1fJame by a variety of accepted and standard methods, mixing and ba 'ng desserts such as pies, cakes, puddings, etc., - ensuring meals are properly cooked and punctually served, observing portion control, - supervisin~nd instructing inmate helpers in the performance of above duties, chec 'ng food continuously for presence of abnormalities, e.g. contraband, periodically searchin~ inmates, warning inmates or laying c arges for misconduct as necessary; - ensuri1 sanitary conditions bv supervising inmate helpers in washing floors, ishes, utensils, cleaning stoves and work areas, - ensuring security of kitchen inmate helpers and kitchen equipment and facility; - ensuring effective waste control, 20% Performs related duties such as. - assisting in the preparation of daii reports and bulk supply orders, - checking to ensure machinery an equipment are in lood condition, - assuming duties of the Senior Food Services Officer uring absences and / or as assigned. NOTE. The incumbent is responsible for the supervision of inmate helpers for the majority of working time, Salary Note K1-CRA applies. Skills and knowledge required to perform job at full working level. Good working knowledge of cookin~ methods, procedures and standards, significant experience of volume coo 'ng, usually gained thro~h employment in a large restaurant or institution, ability to maintain safe, dean an hygienic working conditions; ability to work shifts/weekends; good communication sKills in order to supervise and train inmate helpers. Mr. Mitchell signed the above Job Specification on January 16, 1995 It was signed by the MTEDC Superintendent on March 8, 1995 and by the Dlrector, HRB on March 27, 1995 The Director, HRB noted that the position was so classified because the incumbent: A. Prepares complete meals according to approved menus and work sheets B. Ensures food IS properly cooked and served and that kitchen equipment and premises are sanitary C. Instructs and supervises inmate helpers in food preparation and serving. Mr. Bushell described the duties of the Cooks pnor to the Mmistry's takeover of the food serVIce function as follows. Cook i pre~ared the main course and soups for 540-560 -coo ed and cut meat -at one time, did a certain amount of baking Cook2 -cooked staff cafeteria meal and grill orders -prepared special diets for about 100 -some baking Cook 1 / Junior Cook -peeled vegetables -cooked potatoes, rice and grill orders as necessary -general help He said that all the cooks employed by the contractors were aSSIsted by mmates, and that there was no dIfference in the "type of responsibilIty" as between 1 4 Cooks 3 and 2 and no difference in their administrative responsibilIties He said that the level of sklll differed as between a Cook 1 and 2 and that the Cook 1 was not involved in bulk cooking. He Said that the Helpers had only been "involved" in the last 3 to 5 years, and that previously, their work had been done by inmates Helpers portioned desserts, butter, jam, condiments, etc., and put them on plates, put the plates on trays, and loaded the wagons, and put salads on them as well They would also assist Cooks 1, 2 and 3, depending on the meal load, and occasionally make entries in the logbook tor the Cooks. Mr. Mitchell said that the employee's individual start date with Versa was "relevant to" the selection of the employees to whom positions would be offered and that that was the date when Versa took over the food services contract at MTEDC He said that all the employees had the same start date with Versa and that no employee was more senior than any other He said that s. 56.6 had defimtely been discussed when prepanng Ex. 4 and agreed that s. 56.6(2) was relevant. He said that they "had to find a denominator to rate seniority", and that the start date at MTEDC had been used. He said that he had not referred to s. 566(2) when preparing Ex. 4, "only after" He said "then we linked the two in discussion" He said that the Ministry wanted to be as fair as possible to all staff, and that if June I, 1992 was used as the start date, it would be picking through the list of employees and totally unfair about the whole thing, and be asked why EllIson wasn't m front of Joyce, and that they did npt want that to happen. He said that as the Ministry interpreted Bill 40, June 1, 1992 was the seniority date. He said that in some cases, that date helped the Ministry and in other cases it did not. The two Cook 3 positions were straightforward, using the seniority dates in the third column of Ex. 4 (Start date at MTEDC), he advised. Mr. Mitchell explained the manner of allocating the positions that remained as of January 16, 1995 Mr. Bushell remained m his position as Manager as he had been employed at MTEDC since 1985 and was the only one qualified to do the job and had rights under the amendments to the Employment Standards Act in Bill 40 The most senior person, V Fraser, (seniority date at MTEDC May, 1986) was offered the full-time Cook 3 position. 1: Joyce, second-highest semority date at MTEDC July, 1987, was offered and accepted the regular part-time Cook 3 position. Assistant Kitchen Manager Mr Sidotte, with the third-highest seniority date at MTEDC October, 1987, whose position was elIminated, was not considered for one of the Cook 3 positions. The Ministry tried to offer the Versa employees the Jobs eXlsting as of January 1 5 16, 1995 that were as close to their former jobs for Versa As a result, Mr Sidotte was not offered a Cook 3 position and the Ministry turned to filhng the six Cook 2 positions. Seniority was not the criteria used to determine the offer to Mr Sidotte The Ministry used s. 56 6(2) and (5) Those sections provide' 56.6 (2) The successor emplo);er shall make offers to the persons employed by the previous emp oyer in descending order of each person's seniority with the previous employer until all positions are filled. (5) The position offered must consist of performing. at the same premises, the same work that the faerson did for the previous employer, if such a position is avai able. In deciding to whom the six Cook 2 positions would be offered, Mr. Mitchell advised, the Ministry referred to the start date WIth Versa Foods, then the start date at MTEDC, and s. 566(6) S 56.6(6) states. (6) If such a position is not available, the ~osition offered must consist of alternative work that is comparable aving regard to compensa- tion, hours and schedule of work, lierquisites, quality of working environment, degree of responsibi ity, job security and possibility of advancement. Mr. Mitchell said that s. 56.6(5) told the Ministry to place people in the same job classification, if possible. Because Mr. Gouldbourne was the most senior in the Versa Cook 2 classification, he was offered the first Cook 2 position. Mr. McKenzie, the second most senior in the Versa Cook 2 classification, was offered the second Cook 2 position. Mr. Ellison was offered the third Cook 2 position. Mr. Gouldbourne, Mr. McKenzie and Mr Ellison were offered the first three Cook 2 positions because the new Cook 2 position was the one most comparable to their position with Versa Services and because of their seniority dates. The remaining Cook 2 positions were "filled by comparable position" The Ministry considered Cook 3 to be nearer to the Cook 2 position than the position of Assistant Kitchen Manager held by Mr. Sidotte (start date with MTEDC October, 1987) Consequently, the Ministry oftered Ms Quigley, a Versa Cook 3, whose start date with MTEDC was June, 1991, the fourth Cook 2 posihon. I t assigned the fifth Cook 2 posltion to Mr Sidotte, as it viewed his position as Assistant Kitchen Manager nearer to the Cook 2 positIon than to the eliminated Cook 1 position. It assigned the sixth Cook 2 pOSItion to Ms Storrod, because she had been a Cook 1 for Versa until January 15, 1995 The Cook 1 did some cooking, he advised, and Ms Storrod had backfilled for absent Cook 2 staft Ms. Storrod was offered the sixth Cook 2 position before other Cook 1 s, because she was 16 more senior to them. No Versa Helpers were considered for the Cook 2 /' The offers of Cook 2 positions were based on seniority positions at the time and comparable jobs. Ms. Klippel's past experience as a Cook 2 was not considered, despIte her start date of October, 1988, as compared to Ms. Storrodts of September, 1989, because her position was Helper. Cooking was not one of the duties of Helpers, whose main task was the proper loading of meal wagons. Mr. Mitchell advised that the unclassified Cooks 2 perform the same duties as classIfied Cooks 2. There were no differences in their working conditions other than their scheduling; they were to fill in for absent classified Cooks 2. The Ministry "went through the same exercise" to select unclassified Cooks 2 as for classified Cooks 2. Because Mr. Pelligrini was a Versa Cook 1, and a Cook 1 classification was nearer to that of a Cook 2 than a Helper, he was the first to be offered an unclassified Cook 2 position. He declined it. The Ministry looked at the remaining Versa employees, none of who were Cooks, and offered the unclassified Cook 2 pOSItion to Ms. Klippel. It offered the second unclassified Cook 2 position to Ms. Baldorado, who did not accept it. The Ministry determined that Ms. Delaney was the Helper next in seniority to Ms. Baldorado (Ms. Delaney's start date at MTEDC was December, 1993, Ms. Baldorado's was January, 1990) It also considered that a Helper was closer to a Cook 2 than a Cashier, because the Helper is exposed to the kitchen per se more than the Cashier. At times the Helper does the prepwork for the Cooks. Ms Delaney and Ms. KlIppel commenced theIr employment as unclasslfied Cooks 2 on March 7, 1995 In cross-examination Mr. Mitchell acknowledged that all the Versa employees could perform the Cook 2 duties with some training, and advised that at the time of takeover, the amount of time required to train each person was dIscussed. He was unable to remember the detalls of the conversation or any range of training time required. Ms. Swain agreed that Ms. Delaney had been a Helper from December of 1993 to January of 1995 Ms. Delaney had a later start date at MTEDC than Ms. Swam, but was now working at MTEDC as a part-time Cook 2. As a Helper, Ms Delaney had taken over for absent cart people, prep people and Cook's Helper (presumably Cook 1) Ms. Swain advised that all staff were trained to do a bit of everythmg She advlsed that she had "helped wlth cookmg and a lot of prepwork, including making a large variety of salads" In Mr. Bushell's words in 1 7 " his letter of reference, and had performed those tasks in her spare time, in overtime, and as a replacement for absent employees on a call-in basis. Two days before January 15, 1995, Ms Delaney told her that she had been offered an unclassified position, and that same day, Mr. Mitchell had told her, Ms Swain, that there was no posItion for her Ms Swain said that someone had advIsed her that cafeteria duties, Le 2-course meals, were resumed after January 15, 1995, and that the Cook 2 and occasionally the Assistant Kitchen Manager had prepared the cafeteria meals. Ms. Klippel said that as at April 26, 1996, a grill is run, for inmates only, rather than for staff and visitors, and that the cafeteria is closed and Cooks 2 supervise the inmates to do the cart duties formerly done by Helpers. Mr. Mitchell advised that the Ministry had sent out notices, dated December 13, 1994, pursuant to s. 56.5 of the ESA as amended by Bill 40, to all Versa employees working at MTEDC advising them, among other things, that Versa would cease to provide services at the end of the work day January 15, 1995 Versa also delivered Notices to its employees, dated December 19, 1994 (Ex. 1, Tab 12) By letter dated January 13, 1995, Ms. Klippel and others who were not being offered a position commencing January 16, 1995, were so advised by Supt. DeGrandis (Ex. 1, Tab 5 and Ex. 9) and were advised that they would receive one or two weeks pay in lieu of written notice of termination. Mr. Mitchell had a meeting with each such employee and gave them a notice in the form at Tab 5 He provided a letter in the same format as Ex. 2, dated January 13, 1995, to each employee to whom a position was being offered. Mr. Mitchell advised m cross-exammatIon that he had requested the information to which a successor employer was entitled under s. 56.11 of the ESA, such as job descriptions, from Versa. He was unable to describe the response the Ministry received to its request for job descriptions, but said that he was certain that it received all five items requestable under s. 56.11 He adVIsed that the Mlmstry's use of the words Cook 3 and Cook 2 represented l1a rearrangement of dutiesl1, Cook 3 involving more responsibility, and Cook 2 having more responsibility for inmate supervision and cooking. The working environment had not changed after January 15, 1995, but Cooks employed by the Ministry do more supervision of inmates that they had done while employed by Versa There are occasionally more inmates to supervise, and less staff to accomplish the same task, which might affect the quality of the working enVIronment by putting more pressure on the remainmg kItchen staff. The job 18 / security experienced by the Versa employees prior to the Ministry becoming their employer depended upon the renewal or re-assignment of the contract for food services Comparing their former job security and their former wages and benefits, in Mr. Mitchell's view there had been a substantial increase in job stability as of January 16, 1995 All staff had received an increase in wages and benefits. Versa had paid the same wage rates for Helpers and Cook I, whose hours of work per week had not changed He agreed that Ex. 10 was an accurate list of the Versa employees as at January 15, 1995, their former classifications, start dates with Versa and MTEDC and their new classifications, in order of their start dates at MTEOC. He said that he had not considered who was employed as of June I, 1992 and their shift, to determine their seniority, but had decided to determine seniority under the amendments to the ESA in Bill 40 on the basis of the MTEDC start date, and developed hlS hst of those to whom positions were offered (Ex. 4) as a result of discussions with Regional Human Resources Mr. Mitchell did not dispute that page 2 of the December 13, 1994 notice to employees advises that offers of employment would be made in accordance with s. 56.6(2) of the ESA, "in descending order of each person's seniority with the previous employer until all available positions are filled" He agreed that the Mmistry had made offers of aVaIlable posltions m descendmg order of seniority with reference to the positions held by each employee with Versa, and stated that that had been done in conjunction with s. 56.6(5) He advised that he had had no help in interpreting the words "if such a position is available" and that the Ministry "concentrated on" s. 56.6(5) as the fairest application of the amendments to the ESA. He did not agree that s. 56.6 indicates that a successor employer is to give the jobs to the 11 most semor people if they are qualified or would be qualified with a reasonable period of training He said that that had been discussed, and that the Ministry decided to be fair to everyone on the basis of both seniority and the fact that a Versa Cook 2 was a Cook 2 for the Mimstry and a Versa Cook 3 was a Cook 3 for the Ministry and the behef that that was a fair way to do it. Mr. Mitchell saId that hlS budget was confirmed wlthm days ot January 16, 1995, and that before January 17, 1995, he had approval for one unclassified position and funding for some unclassified hours. It took a while, he advised, to resolve the issue of one extra Cook 2 and the funding The budget is controlled by the Business Adminstrator, but the Director of the Southern Region of the 19 Ministry approves the funding of unclassified positions He believed the ,- Ministry used an unclassified Cook 2 between January 16 and March 7, 1995 He did not dispute that he had offered Ms. Klippel an unclassified position before January 15, 1995, and did not dispute having made a similar offer to Ms Delaney at the same time He advised that he had given Ms. Klippel notice of termination because, as a result of hIS discussIOns wlth Human Resources, it was viewed that as neither Ms. Delaney nor Ms Klippel was being offered a comparable job, it was wisest to terminate their employment and give them the benefits of such termination. He advised that the unclassified positions were not comparable wIth respect to hours of work, as the unclassified positions offered no guarantee of the number of hours, or any hours. He confirmed that he had given each employee his or her notice of termination, but was uncertain as to whether he handed or mailed them the offers of employment. To determme whether the Versa employees, particularly the Assistant Kitchen Manager, Cook 1 and Helpers, met the requirements of s. 56.6(3) i.e were qualified to perform the services required of them or would be qualified to do so with a reasonable period of training, the Ministry took into consideration that the Versa employees to whom offers were made had been m those positIons for two years, and if they had not been capable of performing the duties of the positions, would not have been there Mr. Mitchell said that any employee about whom the Ministry had any doubt as to their qualifications, would have been given training He agreed that all the Versa employees as of January 15, 1995 were either qualified or could become qualified to perform the services required of them, with the exception of Ms. Defranco He advised that Ms Swain would require more trammg, and dId not know what length of trammg she would require He recalled discussing Mr Bushell's letter of reference regarding Ms. Swain, and having seen a copy ot it (Ex 1, Tab 13) He could not recall having asked Mr. Bushell or having had the intention of asking him the amount of time that would be required to train Ms. Swain for one ot the available pOSl hons. OPSEU Staff Rep Nick Disalle advised that on January 13, 1995, there were approximately 256 people on the Art. 24 surplus list, 55 of whom were located in the greater Toronto area Under the redeployment proVISions of the collective agreement, if the Ministry had created 8 claSSIfied and 2 unclassified positions in the MTEDC kitchen, qualified people within a 40 km. radius of the workplace would have the right to be assigned to the vacant new positions If the new 20 ,/ positions were not their former positions, the employer would have to assess the mdividual employee's background and experience, and other critena If the new positions are not filled through redeployment, the employer is obliged to obtain a clearance certificate and its practice is to initially post the position internally, and the positions would become open to classified and unclassified staff, he advised. He said that when different OPSEU bargaining units merge, OPSEU's policy is to "dovetail" the seniority of members of the merged unit with the seniority of the members of the existing unit, and that OPSEU tried to get the seniOrity of Versa employees dove-tailed under "the green book" Union Argument: There are two main issues. a) has a breach of the collective agreement occurred, b) If so, what lS the appropriate remedy There are several sub-issues. a) how does the ESA modify the collective agreement, i.e what is the correct interpretation of the ESA b) has the employer violated the provisions of the ESA c) has the employer violated the collective agreement d) what can make the union whole, if the ESA has been violated? e) are there any bars to the remedy Because the ESA prevails over the provisions of the collective agreement, the rights of bargaining unit members to compete under Art. 4 for what would otherwise have been new, vacant positions, were affected, and were also affected under Art. 4.6.1, 5.2.2, and 5.4.2. In addition, the paramountcy ot the ESA over the collective agreement affected the rights of bargaining unit members under Art. 24, 30.2.4, and 42.10 Persons identified under Part X111.2 of the ESA have been given the benefit of the bargaimng umt members' nghts to be assigned to or compete for those positions. In this case, the employer forfeIted the rights under the collective agreement of bargaining unit members to employees who, under the ESA, did not have rights to the positions they were gi ven. Ms Swain was not offered a position, and 3 employees with less seniority than hers were offered and accepted a position. Five employees with less seniority than Ms. Klippel were offered full-time classified posltIons (m terms of the hours of work) Ms Klippel was not offered a comparable position, 2 I ..-" although one existed and should have been offered to her m order of her seniority The ESA requires the employer to make reasonable offers of available positions to people who meet the description in s. 56.6(1) (a) and (b) Ms Klippel and Ms Swain were among those who met the description. The ESA required the employer to make the offers of employment in descending order of seniority with the prevIous employer, with one exception. S 56.6(3) states that the positions do not have to be offered to employees who are not qualified to perform the services required of them, which refers to the duties, or who would not become qualified to do so with a reasonable period of training. S 566(3) obligated the employer to consider whether people meeting the description in s. 56 61(a) and (b) met the criteria in s. 566(3) Mr. Bushell's, Ms. Swain's and Ms. Klippel's evidence indicates that the s. 56.6(3) exception does not apply to these circumstances. Mr. Mitchell accepted Mr. Bushell's assessment that every employee could do the work in the remaining positions with some training. Further, there is no evidence that the employer put its mind to this exception and applied it. An employer wishing to rely on the s. 566(3) exception bears the onus of establishing the grounds tor its use. The employer's evidence did not discharge that onus. S 56.6(4) provides 56.6 (4) The successor employer shall use every reasonable effort to fill all positions at the premises with persons who were emfeloyed by' the previous employer before the successor employer of ers a pOSition to any other person. Therefore, the obligations placed on the employer in s. 56.6 (1) to (3) continue in force whIle the prevIOUS employer's employees contmue to seek employment with the successor employer. S 56.6(4) applies to unclassified as well as classified pOSItions Ms. Klippel was offered an unclassified position at her termination interview Ms Swain's evidence was that whIle she, Ms. Swain, was still employed at MTEDC, Ms. Delaney told her that she was offered an unclassified posihon. Those offers were made at the time of the changeover from Versa to the Ministry The fact that the unclassified jobs started six weeks later is irrelevant. S 56 6 requires that the employer make offers m descendmg order of seniority unless s 56.6(3), i.e the qualification exception, applies S 56.6 (5) and (6) describe the nature of the work which must be offered while following S 566(2) regarding offers "in descending order of each person's 22 seniority with the previous employer until all positions are filled" They do not ./ alter the oblIgation to offer the posItions in descendmg order of semonty The employer says that it must identify the positions it has available and the number, identify which involve the exact same work as that done by the previous employer's employees previously, and off~r them to the incumbents of those positions, irrespective of seniority and skipping over some employees without considering whether non-incumbents are qualified or can become qualified within the meaning of S 56.6(3) The employer's interpretation of "if such a position IS available" m s. 56.6(5) is problematic. Availability is governed by whether people have taken the positions offered under s 56.6(2), in descending order of seniority, subject to only one exception, s. 56.6(3), inability to qualify with a reasonable period of trainmg. S 56.6 should be read as directing that if the work of a more senior employee is no longer being performed when they are entitled, in descending order of seniority, to be offered employment under s. 56.6(2), s 56.6(6) applies. The successor employer is required to offer them comparable work withm the meaning of that subsection, rather than skip over more senior employees until all other employees of the previous employer are offered the same or similar work in order of seniority, as the Ministry has done When considering the meaning of the word "comparable" in s. 566(6), the fact that the ESA is an Act establishing minimum employment standards should be borne in mind. Consequently, for a job to be comparable, it must be at least as good a position having regard to the features stated in s. 56.6(6), i.e compensatIon, hours and schedule of work, perquisites, quality of working environment, degree of responsibility, job security, and possibility of advancement. Mr. Mitchell indicated that the new classified positions were much better than the positions with the previous employer, and that the hours and schedule of work of the unclassified pOSItIons had been the pomts of comparablhty as between those positions and the positions with the previous employer. The employer misread the words "if available" in s. 56.6(5) It read them in a global sense and as overriding s 56.6(2) "If available" means available when the offers are made in descending order of seniority under s. 56.6(2) The decisions in Brosko and MlnIstry of Labour and Intercon Securzty LzmIted (ESe 95-09), January 10,1995 (Randall), TS E Management Servlces Inc and MInIstry of Labour and Syed All (ESC 95-199) October 25, 1995 (Bradbury), and Pmkerton's of Canada Lmllted and Intercon Secunty LlmIted and Ignatlus 23 ./ Pmto and Mlmstry of Labour (ESe 95-121) June 22, 1995 (Muir) indicate that the S 56.6 job offer provisions are mandatory, and must be made unless the job is gone and no comparable work is available, and that the onus is on the successor employer to establish any exception upon which it relies. S 56.6 represents a departure from the common law The amendments deemed employees of previous employers to be employees of the successor employer and introduced the concept of seniority in statute law Although the employer will argue s. 566(2) only contemplated seniority with the previous employer, Versa, it looked at how long the Versa employees had worked at the MTEDC site S 56.4(3) implies that employees in the services not excluded therein are benefiting the premises and that their employment should not be dependent upon the identity of the labour contractor. The employer saw the ridiculousness of using the same start date with Versa, and used the start date with the premises. In domg so, they were actmg wl.thm the mtention of the Act. Otherwise, it could have used s. 56.7 which provides 56.7 (1) For the purposes of Parts VII, VIII, XI and XlV, a person emrloyed by the previous emK,loyer who accebts a position offered by the successor employer is eemed to have een employed by the successor employer for the ~eriod during which he or she was employed by any previous emp oyers. (2) In subsection (1), previous employers includes only the emtoyer who employs the employee on the 4th day of June, 1992 an any successor emtloyers who employ him or her before the successor employer re erred to in subsection (1). S 56.7 does not exclude seniority with employers who employed the employees of the "previous employers" before June 4, 1992. If the employer resiles from the start dates it used, it is the union's position that the reference to June 4, 1992 is not obligatory, and that thIS board should accept the employer's methodology as reasonable and consIstent WIth the scheme of the act. It does not make sense to make the employees' seniority dependent on an outside act, the change of contractor. Arbitrators have looked at seniority provisions on mergers or transfers and decided that seniority should be interpreted in the context of what is occuring, e g. C. U P E, Lac. 1 and Toronto Electnc CommlsslOners (1967) 19 L.A C. 75 (Arthurs) In that case, the arbitrator awarded the grievors system seniority as opposed to classification semority, on the baSIS that system semonty offered the older workers the protection which they could have expected The union's view of seniority in the case at hand is consistent with the scheme of the Act and reasonably consistent 24 ./ with the expectations of the employees. It also avoids arbitrary decision- making. The employer cannot say that Ms. Klippel is not a qualified Cook 2, and the employer's evidence was that Ms. Swain could become qualified with training. As the employer did not inquire how much traming she would require, it cannot now assert the benefit of s 56.6(3) The appropriate conclusion is that as Ms. Klippel and Ms. Swam dId not fall WIthin the s. 566(3) exceptIons, and were not offered positions in descending order of seniority, the employer violated the ESA. It is further appropriate to conclude that by assigning positions to people who were not entitled to them under the ESA, and by preferring people who were not entitled to preference under the collective agreement as modified by the ESA, the employer violated the collective agreement. The union requests a) an order directing the employer to offer to Ms. Klippel and Swain the positions they should have been offered, b) compensation for Ms. Klippel and Ms. Swain for its failure to have offered them those positions, c) that the board remain seised with respect to implementation. The fact that this is a union grievance does not preclude the board from providing a remedy for the mdlvIduals. OPSEU (Umon) 2156/87 (Dlssanayake) November 22, 1998 and Metropolztan Toronto Reference Library Board and C.U.PE., Loc 1582 (1995) 46 L.A C. (4th) 155 (Burkett) Although the employer can say that the properly aggrieved are only those who did not get their rights under the collective agreement due to the effect of the compulsory offer sections In the ESA, the passage of time since January of 1995 makes that approach impossible People have already gone off the surplus list and It is impossible to reset the domino effect. The union initially requested that the proper people be offered and placed in those positions, and that can be done now The interim decision in this matter does not preclude this If the individual employees were barred from grieving, it was appropriate for the union to grieve that the process be done correctly The remedy sought is to mimic the correct process. The former individual grievors WIll benefit from that, and so will all the members of the bargaining unit on whose behalf the union grievance was brought. Further, in Metro Reference Library, supra, at p 167, Mr Burkett was of the view that s. 45(8), para. 3 of the Labour Relatzons Act gives arbitrators the power to enforce 25 ,- compliance with the statute s / he is interpretng The reasoning in Pmkerton' s, supra, indicates the remedial scheme that is invoked in ss. 56 10 and 56 12, where an offer that should have been made, has not been made An arbitrator interpreting the ESA is acting in the place of an adjudicator under that Act, and has the remedial powers and the ability to enforce compliance that the adjudicator has under the ESA The remedies available to the adjudicator will make the union whole Further, S t Joseph's Hospztal, London and 0 N A. (1989) 8 L.A C. (4th) 144 (Burkett) indicates, at pp 152-153 that in the absence of express language to the contrary, an arbitrator is not confined to declaratory relief in a union/policy grievance, and compensatory relief may be awarded. Mr. Dissanayake followed this reasoning in OPSEU/Umon (2156/87) supra, stating that to fail to do so would force more individual grievances to be brought and that a multiplicity of grievances is not to be encouraged. This principle applIes to an even greater extent in this case, where non-employees and union members were affected when preference was given to people who had no right to such preference under the ESA. Where individual employees have difficulty seeing their collective interests, it is appropriate to file a union grievance Employer argument: The GSB cannot give a remedy whIch IS baSIcally an appomtment under the Publzc Servlce Act (PSA) The interim decision in this matter dismissed the individual grievances. That decision stated that it was premature to dismiss the union grievance on the basis that there was no distinction between the remedies sought by the individual grievors as distinguished from the one sought by the umon. The employer read the interim decision as indicating that the board was seeking evidence that there was a difference between the remedy sought by the union and the remedy sought by the individuals The employer does not take issue with the umon's remarks about the Burkett decision. The GSB can consider and interpret statutes, but those include the PSA A person can be offered employment by the Crown and still not be a Public Servant, but would not be a bargaining unit member. This case raises the issue of the impact of making non- bargaining unit people public servants over other bargaining unit people The interim decision Indicated that the union grievance was not brought for the sole purpose of the indlvidual grievors, but for the bargaining unit as a whole There 26 -- was no actual evidence that any of these positions affected anyone's senionty rights S 56.6 of the ESA has very little impact on existing bargaining unit members. The employer acknowledges that s. 56.6 impacts on Art. 4 of the collective agreement, but that impact is very hmited S 2 of the ESA indicates that the provisions in Part XIII.2 of that Act apply to the Crown. Versa clearly provided a s. 56.4(3) serVIce, and the receivmg employer lS obhgated to make an offer under s 566(1) The words "offer" and "available" are important. "Offer" does not mean all former positions. S 56.6(2) indicates that "offers" shall be made S 56.6(5) indicates what an offer is, i.e. the same premises, the same work that the person did for the previous employer, if such a position is available S 56.6(5) posItions "must" be offered on the basis of semorIty, whIch Impacts on Art. 4. If the employer chooses to post those positions, other bargaining unit members cannot apply for them. There was no evidence of a problem. The ESA does not create a seniority problem. When looking at the impact of the ESA on other employees under the collective agreement, it is significant that the ESA does not require the employer to backdate seniority S 56.6(6) positions are not carryover positions. S 56 7 contains the only reference to carryover of service with the previous employer. S 56 7 specifies that it applies to Part VII, regarding Public Holidays, and Part VIII, regarding Vacations. Neither Part VII nor Part VIII apply to the Crown. S 56.7 specifies that it applies to Part XI, regarding Equal Pay for Equal Work, and Part XI'!, regarding Notice of Termination. Part XI is not relevant and Part XIV deals with individual rights regarding notice, and does not impact on other employees. Nothing in s 56.6 would impact upon the seniority of others in the bargaining unit. S 566 does not glVe the formerly non-bargaining unit employees the nght to use theIr MTEDC start date as their date of commencement for seniority purposes The green book/ collective agreement applies only when they are in the public service Art. 25 defines seniority under the collective agreement. Art. 25 1 speaks of seniority commencing from the date of appointment to the public service As a result, employees coming into the public service under the provisions of the ESA have a January, 1995 start date under the collectIve agreement. They may have rights regarding termination pay arising from their start date at MTEDC, but this has no impact on this dispute The ESA does not gIve former Versa employees bumping rights from prior to 1992 or 1995 start dates over 27 ,....- bargaining umt employees. The ESA does not speak of back-dating seniority Neither the law nor the evidence impacts on the rights of bargaining unit members. Consequently, the remedy sought deals strictly with the individual grievors. Further, the GSB does not have the power of appointment under the PSA The ESA is not a model of clarity The union's list of employees in descending order of seniority (Ex. 10) makes It look easy The employer questions whether that is what the Act requires. In June of 1992, Versa entered into a contract with the Ministry On January 16, 1995 the Ministry took over the food services duties. Versa became the previous employer under s. 56.6. Part XIII.2 of the ESA applies to the Crown. The ESA allows the employer to make offers of what positions are available. Under the new operation, the positions available were Manager, two Cook 3 (1 FT., 1 R.PT.), six Cook 2, and two unclassified Cook 2. The positions of Manager, Cook 3 and Cook 2 did not change all that much. In the ESA cases provided by the union, the employees of the previous employer were not offered the position and were out. Here, the fact situation differs, and there are many people to consider The ESA requires the employer to use the Versa seniority date The mandatory offer under s. 56.6(5) pertains to the same work at the same premises. The old Manager became the new Manager. The Cook 3 posItions were offered to the 2 most semor former Cook 3s. The least senior former Cook 3 moved down. The three most senior Cook 3s were given offers. The employer used the on-site seniority date for Cooks. The three most senior people got Cook 2 positions. Three Cook 2 positions remained. Because cooking constituted 70% of Mr. Sidotte's former position of Asslstant Kitchen Manager, he got one of the Cook 2 posItions. The next offer of a Cook 2 position was made to Ms. Quigley, a former Cook 3, who had less on- site seniority than Ms. Swain. The last offer was made to Ms Storrod, a former Cook 1, who had less on-site seniority than Ms. Klippel. Throughout this process, Mr. Mitchell emphasized s. 56.6(5) The employer's position is that s. 566(5) gives certain employees a separate and substantive right, apart from seniority Ms. KlIppel has Cook 2 expenence Wlth prevIous contractors. The employer does not say she was not qualified However, at her own request, from the beginning to the end of the last contract with Versa Food Services, she 28 " was a Helper. The employer's position is that as a Helper, she does not oust someone who was performing the job wlth the prevIous employer Ms. Swain never held a position as a Cook. Like Ms. Klippel's, her position was eliminated. As a result, she could not claim one under s. 56.6(5) Ms. Delaney was a Helper who had performed fully as a Cook. She therefore had a right to an offer under s. 56.6(5) That overtook Ms. Swain's seniority If the employer should have given Ms. Swain an unclassified position, that would have had no impact on the rights of bargaining unit members under Art. 24, because Art. 3 16 does not extend the application of Art. 24 to unclassified employees. Only Art. 4.01 applies to unclassified employees The ESA cases do not deal with competing interests of employees of the previous employer to offers by the successor employer. However, at p 14 in Brosko, supra, Mr. Randall suggests that s. 56.6(5) and (6) are exceptions to the mandatory job offer. The employer's positIon IS that lts first oblIgatIon IS to offer the former incumbents of the remaining positions their positions in order of seniority S. 56.6(3) allows inability as an exception from this procedure, where those in order of seniority are not qualified to perform the services or would not become qualified to do so with a reasonable period of training. If the remaining position is basically the same work as that performed for the previous employer, s. 56.6(5) requires the successor employer to offer it to the incumbent of the position for the previous employer. The union approaches s. 56.6 as "a cascade", and that you can only get a position under s. 56.6(5) after utilizmg seniority The ESA, however, does not say that. Its prOVIsions are specific and tight. There are exceptions on exceptions, and the ESA's provisions resulted in difficult choices. If what the umon says is not there, the GSB ought not to read that in. The Toronto Electrical COnl1111SSZOners case, supra, dealt with successor rights under the Labour RelatIOns Act That case is not helpful, because the ESA, the PSA and the collective agreement apply in this c?lse S 56.6(5) should be given its full reading and full meaning The union's interpretation reads s 566(5) out of the Act. Union reply: The board is not required to decide anything under the PSA The ESA applies It requires offers to be made The board does not have to order the employer to appoint anyone The employer has already created the positions 29 and determined whether or not they are public service positions. The ESA or provisions override the rights of returning employees, bargaining unit members' displacement rights, and rights under Art. 4. It greatly modifies many other benefits. Mr. DeSalle's evidence, particularly that 55 of the 256 people on the surplus list in January of 1995 were from the Greater Toronto Area, was not hypothetical. The positions at MTEDC were not posted as vacancies. Those people were deprived of their rights under those articles to those positions, by s. 56.6 of the ESA. The Issue to be decided is whether the modifications of those rights were done in accordance with the ESA The umon is not obliged to shr VII how rights were affected. The union's position is that to the extent that the rights of the members of the bargaining unit were modified by the ESA, they were improperly modified by an improper interpretation and application ot the ESA The employer's obligation under the ESA trumps the rights of the current incumbents of the remaining positions. On occaSIOn this board must interpret provisions of a statute so that they harmonize, where they conflict with the collective agreement. Under s. 56.7(1) of the ESA, regarding termination of employment, seniority is calculated on the basis of continuous employment with any previous employers. That includes seniority under the collective agreement. Consequently, the matter is not as simple as the employer has presented. The employer made a choice between two competing interests. Out of self-interest, it made offers to people it would not have to train. As a consequence, they saved money, at least with regard to Ms Swain. The union does not advocate reading out s. 56.6(5) That subsection has an application in its place It states the job the employer can offer when it reaches the person in order of seniority The employer's interpretation reads the word "closer" into S 566. Mr Mitchell's evidence was that Cook 1 is closer to Cook 2 than Helper. The comparators are found in s. 56.6(6) They are compensation, hours of work, schedule of work, perquisites, quality of working environment, degree of responsibility, job security, possibility of advancement. The comparators do not include whether the dutIes of the positIon to be offered are "closer" to one former position than another former position. The employer's rationale breaks down. It is unable to explain why it gave positions to Storrod, Gouldbourne and McKenzie over Klippel. Mr. Bushell would not admit Ms Klippel and Ms. Swain did any cooking. In the employer's view, all the former Cook 3s and 2s were 30 /' going to do their same old jobs After it made them offers, the employer chose, among the Cook 1 s, Helpers and Cashlers, who was "closer" to the remammg Cook 2 positions It did not choose who had more seniority, among those doing the same work. The remaining Cook 2 jobs went to a Cook 1 (Ms. Storrod), the Assistant Kitchen Manager (Mr. Sidotte), a Helper (Ms. Delaney, unclassified) and another Helper (Ms. Klippel, unclassified) There is no reason in the ESA why the employer could not and did not make the offers in descending order of seniority The evidence established that the Cook 1 was not doing the same work as a Cook 2, and that different work was involved in those two positions Ms. Swain's Cashier and Ms. Delaney's Helper position were both eliminated. The evidence did not establish how the employer determined that Ms. Delaney, who was not doing the same work as a Cook 2, had rights under s. 56.6(2) The only explanation that was given was that a Helper was "closer" to a Cook 2 than a CashIer. That IS not the standard under s. 566(3) In the employer's view, "same work" covers a very broad spectrum. The employer's submission, that there was no impact on any bargaining unit members, does not constitute a barrier to a remedy for a violation under the ESA The rights of bargaining unit members under the collective agreement were modified by the ESA. The only practical and reasonable remedy is to put the union and employer in the position in which they would have been had the offers been done properly They should be directed to make the offers to the appropriate people and to compensate the employees to whom the offers should have been made Reasons. The parties agree that s. 45(8) para. 3 of the Labour Relatwns Act, S 0 1990, C. L.2 as amended to 1992, c 21 [currently s 48(12)(j), SO 1995, c 2] , which provides An arbitrator or arbitration board shall make a final and conclusive settlement of the differences between the parties and, for that purpose, has the following powers. 3. To interpret and appl~ the requirements of human rights and other employment-re ated statutes, despite any conflict between those requirements and the terms of the collective agreement. confers the authority to interpret and apply the requirements of the ESA upon a GSB arbitrator or arbitration board. Such authonty of GSB arbitrators was statutonly confirmed by s. 7 of the Crown Employees' Collectl've Bargammg Act, 1993, S 0 1993, c 38, which applied at the time thlS grievance arose As the PSA 3 1 is an "employment-related statute", this board has the authority to interpret and apply it, if the circumstances so require In this case, the appropriate analytical route is to initially interpret the relevant sections of the ESA and, having done so, determine whether it was appropriately applied, if it has been appropriately applied, it will not be necessary to consider the PSA A number of approaches may be used in interpreting a statute The "lIteral rule", the "golden rule" and the "mIschIef rule" were developed m common law The "literal rule" focuses on the plain, ordinary literal meaning of the language Where the words of the statute can have only one reasonable grammatical construction, that is the interpretation to be adopted. The "golden rule" initially focuses on the language of the statute, but where the statute's plain, ordinary, literal meaning gives rise to an irresolvable ambiguity or obscurity, despite the application of various "canons of construction", the interpreter may choose the interpretation which would avoid unreasonable consequences E.A. Dreidger, The COllstructwll of Statutes, (Butterworths. Toronto, 1974) p 66. The "mischief rule" , also known as "the rule in Heydon's case", reflects the doctrine of equitable construction. This approach gives primacy to the spirit and intention of the legislation, rather that the literal meaning of the language used. The interpreter identifies the "mischief" or "defect" for which the common law did not provide and which the legislature sought to remedy The interpreter seeks the meamng whIch would suppress the mlschlef, advance the remedy the legislature intended, and suppress "subtle inventions and evasions" which would continue the mischief' R. Sullivan, Dreldger 011 the COllstructwll of Statutes (3rd Ed.), (Butterworths. Markham, 1994), p 36. The common law rules of construction have been consohdated by what is currentlys.100fthe I11terpretatwll Act, R.50 1990, c 1.11, whICh apphes to the mterpretation of Ontario's provincial legislation, and which provides. Eve~ Act shall be deemed to be remedial, whether its immediate burport is to direct the oing of an~thing that the Legislature deems to be for the pu lie good, and shall according y receive such fair, lar~e and liberal construction and interpretation as will best ensure the attainment of t e object of the Act according to its true intent, meaning and spirit. This section mandates a "purposive analysis" in construing all statutes, regardless of whether ambigUIty, absurdity or obscurity are detected Sullivan, supra, p 38 It reflects the "modern principle" enunciated by Dreidger, supra, p 67 the words of an Act are to be read in their entire context in their ~rammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. 32 The state of the law prior to the enactment of the legislation can provide some assistance in determining the "mischief" intended to be remedied, or the object or intention of the legislature, and in clarifying the scheme that was legislated to provide the remedy Bill 40, which introduced Part XIIl.2 of the ESA, received first reading on June 4, 1992. Prior to November 5, 1992, when Bill 40 came into force, the common law principal of freedom of contract by and large governed offers of further employment of "prevlOus employees" when a business was sold, leased, transferred or disposed of S 13 of the ESA, R.5 0 1990, c. E.14, which section is also found in the 1980 consolidatlOn of the same Act, provides. 13,(1) In this section, "business" includes an activity, trade or undertaking, or a part or parts thererof; "sells" includes leases, transfers or disposes of in any other manner and "sale" has a corresponding meaning. (2) Where an employer sells a business to a purchaser who employs an employee of the employer, the emEloyment of the emEloyee shall not be terminated by the sale, and the beliod of emp oyment of the em~ oyee with the employer shall be deemed to have een employment with the purc aser for the purposes of Parts VII, VIII, XI and XIV (3) Where an employer sells a business to a purchaser who does not employ an employee of the employer, the employer shall comply with Part XIV S 13 did not and does not apply to the Crown, but reflects a limitation on the freedom of contract applying to further employment in these situations. It does not speak to the criteria for continuing the employment of some or all of the prevIous employer's employees, but only to those employees' entitlements to the Act's minimum standards with respect to Public Holidays, Vacation with Pay, Equal Pay for Equal Work and Notice of Termination, If the purchaser / successor employer maintains their employment. Although s 13(2) indicates that the sale or transfer of a business does not terminate a previous employer's employees' employment, s 13(3) contemplates that the purchaser may not continue their employment, in which case the employer must comply with Part XIV re Notice of Termination. S 13(2) indicates that if the purchaser / successor employer retains some or all of the previous employer's employees, any "period of employment... with the employer" must be deemed employment with the purchaser for the purpose of determining entitlement to Public Holidays, Vacation with Pay, Equal Pay for Equal Work and Notice of Termination. Thus, in such circumstances, a limited form of seniority I e. the period of employment with the previous employer, was carried over to the purchaser and was applied 33 to calculate certain limited entitlements. In all other respects, the purchaser / ..- successor employer is free, subject to the Human Rzghts Code, to apply his/her discretion as to which, if any, of the previous employees s/he would continue to employ No concepts of seniority, skill, experience, present ability, ability to qualify in a reasonable period, offers of the same work or work comparable to that done previously limit the successor employer's discretion as to whether or not to continue any employee's employment. Against this background, on November 5, 1992, Part XIII.2 came into force Bill 40 did not repeal s. 13 S. 13 continues to apply to situations not described in Part XIII.2, and was amended by the addition of s. 131 on November 10, 1995, when Bill 7 came into force and repealed Part XIII.2. Before November 5, 1992, where employees were providing food, building cleaning or security services on a particular premise, i.e at a particular building or work-site related to a buildmg, and were employed by a partIcular employer, if the employer changed, which occurred where the owner of the premises changed the contractor providing the services, or if the owner of the premises took over the provision ot the service, employees at the site had no job security, in the sense of legal entitlement to continued employment. From the perspective of the owner of the premises and/or the new contractor, the absence of any limitation on their discretion as to who their employees would be, was a positive Hung. If the owner of the bUlldmg chose to change contractors or take over the provision of the service because s/he was not satisfied with the services being provided, s / he was free to employ new employees in order to improve the service. This freedom was justifiable, based on the assumption, which was not unfounded in some circumstances, that his/her dissatisfaction arose from the poor work performance of the preVIOUS employees. The freedom to contract enabled the owner or a new contractor the flexibility to Increase or decrease the staff complement, change or maintain the previous employer's employees it perceived were peforming well and would continue to do so, and terminate the employment of others Apparently the previous food service contractors on-site at MTEDC since 1985 retained, through Mr Bushell, at least 11 of the employees who provlded services before June 1, 1992, until January 15, 1995, exercising that freedom of contract. The inference that must be drawn from the enactment of s. XIII.2 against this historical background is that in the view of the legIslature, s 13 of the ESA and common law permitted owners of premises and new contractors an 34 excessively broad discretion in retaining or terminating the employment of P" employees who had worked at bUlldings and work-sites for extended pen ods of time providing security, cleaning and food services, and the exercise of that discretion resulted in discontinued employment of satisfactory to excellent employees, which the legislature perceived as unfair The government of the day perceived the lack of protection for employees in these circumstances as an mjustIce to the mdIvIdual employees and contrary to the publIc mterest. The length and detail of Part XIII.2 strongly suggests that the legislature enacted it as a "reform" or "social welfare" measure and intended it as a complete code of conduct or rules to reform the decision-making process around the retention of on-site employees providing such services. Modern legislatIve drafting is open. Draftspersons no longer attempt to foresee and provide for every possibility In reform legislation, new rules may modify, supplement or replace the existIng regime, be it common-law, statutory, or a combination of both. Sullivan, supra, p 39-40 Although the legislature set out "rules" governing offers of employment in s. 56.6, which were intended to apply where, as here, the staff complement was reduced and the duties redistributed and changed somewhat, legislated rules may not apply to all possible situations. This can arise by oversight or by an intention of the legIslature to limit the appllcation of the rules While the foregOIng discussion may be dwelhng upon the obvious, it brings into focus the fact that as drafted, Part XIII.2 of the ESA, and particularly s. 56.6, contain problems of meaning in circumstances such as those confronted by the parties, which leave unclear the extent or "reach" of the remedy or protection for such employees intended by the legislature It is apparent to both parties that s. 56.6(2) Otfers by (2) The successor emplot;er shall make offers to the persons employed Seniority by the previous emp oyer in descending order of each person s seniority with the previous employer until all positions are filled. expressly mandates that offers of employment be made "10 descendIng order of .seniority wIth the prevLOus employer " "Previous employer" is expressed in the singular in s. 56.6(2) and is expressly defined in s. 56.3 as "the employer who ceases to provide services at a premises" Seniority is not defined in the Act. The "previous employer" so defined was Versa Food Services, and the earliest seniority date (continuous service date) any of the employees had with Versa was June 1, 1992, the date ot commencement of the last contract between Versa 35 and the Ministry As observed by the parties, because following this definition, " 12 or 13 of the employees had the same start date wlth Versa, the reference to offers in descending order of seniority in s. 566(2) is rendered meaningless or absurd. The subsection can have no application or effect in guidIng the successor employer as to the order in which offers of employment are to be made, using "seniority with the previous employer" as defined, In these circumstances. "An interpretation which gives effect to the remedy is preferable to one which seeks to restrict or eliminate the remedial provision" Royal Trusteo Ltd. v. Sparlzng (1984), 6 D L.R. (4th) 682, at 693-94 (Ont. C.A ) affd. [1986J 2 S.C.R 537, cited in Sullivan, supra, p 76. In Part XIII.2 the legislature's intended remedy and its reach is not readily apparent. Further, s. 56.6(2) is not the only remedial provision. Resort may be had to s. 56.6 (3) to (6), if s 56.6(2) does not apply, and that may well have been the intention of the legislature The legislature appears to have addressed and given limited effect to employees' on-site continuous service / seniority dates in two places in the ESA. S. 56.7 provides 56.7 (1) For the purposes of Parts VII, VIII, XI and XlV, a person If offer emRloyed by the previous emtoyer who accebts a position offered accepted by the successor employer is eemed to have een employed by the successor employer for the ~eriod during which he or she was employed by any previous emp oyers. Application (2) In subsection (I), "previous employers" includes only the emtoyer who employs the employee on the 4th day of June, 1992 an any successor emtloyers who employ him or her before the successor employer re erred to in subsection (1). S 56.7 deems an employee after s/he accepts a position offered by a successor employer to have been employed by the successor employer "for the period in which" s/he "was employed by any prevlOus employers" ThIS appears to give an employee of the previous employer who accepts an offer of employment by the successor employer his / her on-site continuous serVICe date i e s/he is deemed to have worked for the successor employer from the date s/he first worked for any previous on-site employer. "Previous employers" In S 56.7(1) is then defined in ss. (2) as meaning "only" the employee s employer as of June 4, 1992 and "any successor employers who employ" hIm/her "before the successor employer as of June 4, 1992" This benefit is expressly conferred in ss (1) for the purpose of determInIng the employee's entitlement to PublIc HolIdays, Vacation Pay, Equal Pay and Notice of Termination. Thls follows the pattern In s 13, examined earlier The appearance in two separate sections of the ESA of 36 provisions which deem a past period of employment with a previous employer or employers as the basis of entitlement with the successor employer expressly with regard to Public Holidays, Notice of Termination, etc., and for no other stated purpose, suggests an mtentIon on the part of the legIslature to restrIct the effect of deemed periods of employment, whether (m-site-based or not, to the benefits stipulated, and an intention not to extend them to the basis upon which s. 56.6(2) offers of employment must be made It is plausible and reasonable to infer that the legislature intended to confer the benefit of offers of employment In descendmg order of seniorIty only on employees who experienced a turnover of employer(s) after June 4, 1992, when Bill 40 and Part XIII.2 were first introduced, and who therefore have had a less lengthy attachment to the workforce and / or the premises, in the belief that such employees require more protection than those with lengthier attachments, and that those with lengthier attachments are provided sufficient protection by s. 566 (3) to (6) dealing with qualifications, offers to employees of the previous employer, and the nature of the work to be offered. It is also plausible and reasonable to infer that the legislature intended that the on-site continuous serVIce date be the primary CrItenon for offers of employment and that thIS gap is merely a drafting oversight. If the latter is the case, the legislature could have simply provided that as the definition of seniority in s. 56 6(2) or used the expression "all previous employers" or "all on-site previous employers" in s. 56.6(2) Both these reasonable and plausible interpretations fall within the purposIve analysls above Another interpretation of "each person's senionty with the prevIous employer" in s 56.6(2) could define seniority as flowing from the seniority date which the previous employer, in this case Versa, recognized for its own purposes, which was not necessarily the June 1, 1992 date of commencement of its most recent contract with the Ministry The evidence, particularly Ex. 1, Tab 3, which Mr Bushell provided the Ministry, discloses that Versa acknowledged each employee's ongmal start date at MTEDC. It also dIsclosed that the MInistry as successor employer used the on-site seniority date to some extent in determining to whom it would make offers of employment. However, because s 567 and s 13 specifically restrict the use of the on- site seniority date and the deemed period of employment respectively to use for determining entitlement under Parts VII, VUI!, XI and XlV, and s 56.3 defines "previous employer" for Part XIII.2 and therefore for s. 566(2), I find the 37 more reasonable interpretation to be that the legislature intended the more / restrictive mterpretation of "seniority with the previous employer" in s. 56.6(2). The express language of s. 56 6(2) would be tortured, rather than merely strained, if the meaning of "seniority with the previous employer" were extended to include the em-site start date with all previous on-site employers who have ceased to provide services at the premises. I reach this conclusIOn reluctantly, in view of the employer's apparent but somewhat discontinuous consideration of the MTEDC start dates in determining to which employees it was required to make offers of employment, and in view of its position, in argument, to resile from any application of the MTEDC start date The accepted approach to the interpretation of collective agreements permits an arbitrator to consider and adopt an interpretation the parties gave to the words of their agreement, despite any incongruity between the literal meanmg of the words and the interpretatIon placed on them by the parties. However, that approach applies to agreements drafted by the parties, and not to statutes of the legislature. The interpretation of legislation is governed by the 1 n terpretatlOn Act, case law, the discovered object and intention of the legislature, and the various canons of construction. While it is reasonable and in the interests of positive and constructive labour relations to seek an interpretation that will harmonize Part XIII.2, particularly s. 56.6, with the collectIve agreement, that can only be done where the object and mtentIon of the legislature, as reflected in the wording of the statute, permit, In the absence of some indication that the legislature intended the concept of seniority in s. 56.6(2) to be extended to the continuous on-site employment start date with all previous employers, there is no basis upon which to rest a broader InterpretatIon. I consequently conclude that as Versa Food Services was the previous employer who ceased to provide services at the premises, and as most Versa employees had the same seniority date with Versa, it is not possible for the employer to comply with the s 56.6(2) instruction to offer the positions in descending order of each person's seniority with the previous employer The following section, s. 56.6(3) provides Exception (3) The successor employer is not required to offer positions to persons who are not qualified to perform the services required of them or would not be qualified to do so with a reasonable period of training. S. 9 of the InterpretatLOn Act, supra, provides 38 The mar~inal notes and headings in the body of an Act form no ~art of the Act but shall e deemed to be inserted for convenience of reference on y This sectlon obliges me to conclude that the word "Exception" appeanng In the margin beside s. 56.6(3) does not require that subsection to be read as an exception to s 566(2) S 56.6(3) contains an unfortunate double negative It can and should be more properly read as. The successor employer is reduired to offer positions to persons who are qualified to perform the services require of them or would be qualified to do so with a reason- able period of training. The word "require", framed in the positive, expresses an order or demand. In view of the foregoing, I conclude that s. 566(3) is an ImperatIve provision and in the context of s. 56 6, read as a whole, is an essentIal requirement of the successor employer. I also conclude, on the evidence before me, that all the Versa employees were qualified or would be qualified with a reasonable period of training. Nevertheless, since the evidence established that all the Versa employees fell within one or the other of the s. 56.6(3) descriptions, this section provides the employer little direction upon which to determine who is entitled to offers of employment. Further presumptIons of mterpretatIon that must be conSIdered m construing Part XIII.2 and s. 56.6 are that "the legislature seeks an orderly and economical arrangement", each provision expresses a complete Idea, related provisions are grouped together and the sequence ot provisIOns reflects a rational plan, and parallel structures are used to express parallel requirements. Sullivan, supra, p 159 I conclude that in relation to the circumstances of this case, s. 566 sets out a number of parallel requirements, which successor employers were obliged to meet, to the extent that the circumstances made possible Turning now to the constructIOn of subsections 56.6(5) and (6), they provide Nature of (5) The position offered mllst consist of performing. at the same work premises, the same work that the faerson did for the previolls employer, if such a position is avai able, Idem. (6) If such a position is not available, the Kosition offered must consist of alternative work that is comparable aving regard to compensa- tion, hours and schedule of work, Kerquisites, quality of working environment, degree of responsibi ity, job security and possibility of advancement. Although subsections (1), (2) and (4) use the word "shall", the above subsections use the word "must" The presumption of consistent expression is applied when interpreting legislation, e g. the same words used in a statute have 39 the same meaning, different words have different meanings, and the legislature '" is presumed to avoid stylistic variation. Sullivan, supra, p 163 S 29(2) of the InterpretatIOn Act, supra, provides In the English version of an Act, the word "shall" shall be construed as imperative and the word "may" as permissive The ConClse Oxford DIctIOnary defines "must" as 1 " be obliged to (do) 2, ought to (do) JW necessity less emphasized) 3. be certain to ( 0) 4, must have done (1) surely did or has done (2;' necessarily would have done 5. (w neg belonging in sense to dependent vb , c . may) I conclude that in using "must" rather than "may", the legislature meant that successor employers are "obliged to" apply subsections (5) and (6) It appears to have recognized and anticipated that in some circumstances successor employers would reorganize the workplace and the duties and functions of various positions, such that the "same work" might no longer exist. In anticipating that possibility, and providing an alternative approach in the following subsection, it chose not to use "shall", which conveys the lmperahve Because "must" conveys obligation, and because s. 56.6(5) and (6) indicate that the employer must consider and apply one or the other or both, I conclude that the legislature mtended them to be both mandatory and directory i e if not (5), then (6) S 56.6(5) uses the term "the same work" S 56.6(6) uses the term "alternative work that is comparable " The ConCIse Oxford DIctIOnary defines lithe same" as identical, not different, unchanged, unvarying and defines "work", m the employment context, as n. task \to be) undertaken; employment, esp the opportunity of earning money by labour, abourious occupation Having regard to the factors of comparabllity in s 56.6(6) and the words "the same" modifying "work" in s 56.6(5), I conclude that the legislature intended "the same work" to refer to identical tasks, duties, functions or responsiblities which the person performed for the previous employer In view of all the evidence, I conclude, on balance of probabilities, that in this case the only poslhon conshtutmg "the same work" for the previous employer was the new position of Kitchen Manager, formerly titled Food Services Manager. The next matter to be considered is what the legislature meant by "alternative work that is comparable having regard to compensahon, hours and schedule of work, perquisites, quality of working environment, degree of 40 responsibility, job security and possibility of advancement" "Comparable" is an adjective whIch ordmarily takes a preposlhon and a noun. The Concise Oxford Dzctwnary defines "comparable" as that can be compared (with); fit to be compared (to), and defines "compare" as 1 V.t liken, pronounce similar, (to; ); estimate similarity or dissimilarity of (one thinG to another in xality, with another in quantity or detailed nature; ) observe simi arity or relation etween; 2. v.i, bear comparison (this compares faz'()urabl1{ with preZlious results), be on terms of equality with In the context of s. 56.6 read as a whole, and in view of the presumptions of an orderly and economical arrangement, that related provisions are grouped together, and that the sequence of provisions reflect a rational plan, I conclude that in s. 566(6) the legislature intended to require the successor employer to offer as an alternative to "the same work", where it is not available due to reorganization or downSIzing or both, "work that is comparable" to "the same work that the person dId for the prevIous employer" I also conclude that the legislature intended that the alternative work offered be "as similar or alike as possible to" or lithe available work that is most similar or alike to" the work the person did for the previous employer, having regard to -compensation -hours and schedule of work -per~uisites -dua ity of workmg envlronment - egree of responsibihty -job security -possibility of advancement. The new Cook 3 Position Specification did not form part of the eVIdence and no objection was made to the offers of the Cook 3 positions to the present mcumbents. Consequently the offers of those pOSItions w1l1 not be examined for conformity with the requirements of the legislation. Six Cook 2 positions were offered on about January 13, 1995 The hours and quality of working environment and possibility of advancement were not changed in relation to any of the former Versa positions The new Cook 2 positions all received an increase in the hourly rate as well as a $2,00000 annual Custodlal Responsibility Allowance and greater Job security was assoClated with those positions as compared to any of the former Versa positions. The$2,00000 annual allowance was a "perquisite" which was not assoClated with any of the former Versa positions. The new Cook 2 positions involved an increased 41 degree of responsibility as compared to all prevlOus Versa positions with regard -" to the responsibility for the supervision of more inmates and increased cooking responsibility as compared to the former Cook 2 position. I find that the duties of the new Cook 2 posihons as set out In the Position Spec (Ex 5) Involve more cooking skill and therefore a greater degree of responsibility than was required of the former Cook 1 I therefore conclude that the new Cook 2 position IS more "comparable" to the former Cook 2 and Assistant Kitchen Manager positions than to the former Cook 1 position. I conclude, on the eVldence, that the offers of employment as Cook 2 to Mr. Gouldbourne, Mr. McKenzie, Mr. Ellison, Mr Sidotte and Ms. Quigley, irrespective of their MTEDC start dates and the order which the evidence disclosed those offers were made, satisfied the requirements of s. 566(6), those employees were offered employment that was "as similar or alike as possible" and was "the available work that was the most similar or alike to" the work they did for the previous employer. The fact that those employees were also among those with the earlIest start dates at MTEDC was not, in my VIew, the statutorily determining factor of their entitlement to those offers, despite the evidence that the employer considered it. Rather, I conclude that consideration of their start dates was incidental to the employer's compliance with s 566(6) The last classified Cook 2 position was offered to Ms. Storrod, a former Cook 1, who, according to Mr. Bushell, had substituted for an unstated period of time for a Cook 2. The day-to-day work of a Cook 1, according to Mr. Bushell, was that of preparing vegetables, cooking potatoes and rice, preparing grill orders when necessary, and "general help" The employer's evidence, with one exception, does not support a convincing and logical rationale under s. 56.6(6) for offering a Cook 2 position to a former Cook 1 who had substituted for a Cook 2 for an unstated period of time, as compared to an employee, Ms Klippel, who had earlier been a Cook 2 for 3.5 years The eVIdence established that Ms. Klippel had, for that period, on a continuous basis, done most of the duties found in the Cook 2 Position Specification. On that basis, her previous experience as a Cook 2 would have entitled her to an otfer of the sixth claSSified Cook 2 position under s 566(6), as it met the description of "alternative work" that was "as similar or alike as possible" to her earlier Cook 2 functions Her previous work experience as a Cook 2, and specifically its "degree of responsibIlity", was more "comparable" to the new Cook 2 position than Ms. Storrod's work as a Cook 1 who at times filled in for the Cook 2 position. The 42 employer may have considered this, and had to make a very narrow distinction, /' based on the language of the statute, which created an appearance of great unfairness, if not actual untmrness. The employer interpreted the words "the same work that the person did for the prevLOus employer, if such a position is available" m s 566(5) as the only work to whIch the nature of the offers of employment in s 56.6(6) were reqUlred to be compared. It concluded that the italicized words precluded it from considering Ms. Klippel's 3.5 years of skill and expenence as a Cook 2 for Dalmar, the second previous employer If the presumption of consistent expression and its corollary, that the same words in a statute have the same meaning, are applied consistently to the words "the previous employer" in both s. 56.6(2) and in s 56.6(5) and (6) when read together, the necessary and reasonable conclusion is that the legislature intended to limit the employer, in determining which employees were entitled to offers of remaining employment, to a consideration of only the worked performed for "the prevIous employer" defined in s. 56. 3 as the employer "who ceases to provide services at [the] premises" This interpretation is in conformity with the language in which the legislature expressed itself, and very basic canons of construction, however harsh, unfair and regrettable the result may appear. I am unable, on the evidence before me, notwithstanding Mr. Bushell's description of Ms. Klippel as a very versatile employee, to conclude that while a Helper for Versa, Ms. Klippel substituted for a Cook 2 more frequently than Ms. Storrod, and that therefore her work for Versa was more "comparable" to the Cook 2 than was Ms Storrod's. I am therefore obliged to conclude that the offer to Ms. Storrod, rather than to Ms. Klippel, satisfied the requirements of s 56 6 Two unclassified Cook 2 positions remained to be filled by offers in conformity with s 566 Mr. Pellegrini, a Versa Cook 1, Ms Klippel, a Helper with Cook 2 experience for Versa, Ms Delaney, a Versa Helper who had filled m for absent Cooks 1 and 2 for unstated penods of hme, Ms. Baldorado, another Helper, and Ms. Swain, a Versa Cashier who I find had substituted for 2 months continuously and on other occasions, as required, as a Cook 1 or Versa, were available for offers. Mr. Pellegrini and Ms. Baldorado declined the offers In my view, using the comparators in s. 566(6) Ms. Klippel was entitled to an offer because her experience substituting as a Cook 2 while a Helper for Versa made her "work for the previous employer" more comparable, i e "similar or alike as possible" to the remaming Cook 2 position than was the work of the 43 /' remaining employees. As between Ms. Delaney and Ms Swain, I am satisfied that both would have been qualified to perform the duties of an unclassified Cook 2 within a reasonable period of time On the evidence, it is not possible to conclude that Ms. Swain's work as a substitute Cook 1 was more "comparable to" that of a new Cook 2 than Ms. Delaney's fill-in work for Versa as a Cook 1 and 2. It is also not possible to conclude that Ms. Delaney was preferred for an offer of employment over Ms. Swain for reasons constituting a breach of Part XIII.2 or an attempt to evade its provisions The wording of the statute put the employer in a very difficult position with respect to the last three offers of employment, and compelled it to make very narrow distinctions as between the remaining employees. Under all the circumstances, I would not alter the decision of the employer to offer Ms. Delaney the unclassified Cook 2 position. The inescapable fact that the Versa employees with the greatest on-site seruority, wlth the exceptIon of Ms Klippel and Ms. Swam, recelved and accepted the first eight offers of employment gives rise to the impression that the employer inconsistently applied the principle of seniority This unfortunate impression arises because of the precise wording of s. 56 6 and the definition of "previous employer" in s. 56.3 and its impact on the interpretation of seruority in s. 56.6(2), rather than from arbitrary decisions of the employer. Better labour relations and improved trust between the parties might have resulted had the legislature used the expression "any prevIous employers" m both s. 56.7(1) and 56.6(2), but such was not the case. Thus, although the employer's rationale for its offers did not entirely conform to the statute, the end result is, in my view, that its offers were made in compliance with the requirements of the ESA I am therefore unable to find a breach of the collective agreement, and the grievance must be dismissed Dated at Toronto this 23rd day of October, 1996. /' /-'~ r -- .,/'....,.,....-- ~ ,vt //- /~; ::.- J-/ ~~ --- / / I' . ~._ __ 1'. _-.--.-".~._ c~ .".- c:::--/ / ~ _-----........... ..,-__ L - l..../ ~... '-- ~-"~.--~- Susan D Kaufmal -/ Vice-Chai r /'