HomeMy WebLinkAbout1986-1088.Campbell.88-01-11IN THE MATTER OF AN ABB~TRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Patricia Campbell)
Grievor
and
The Crown in Right of Ontario
(Ministry of Health)
Employer
Before:
For the Grievor:
For the Employer:
Hearin=
P. Draper - Vice Chairman
G. Nabi Member
I. J. Cowan - Member
M. Cherney
Counsel
Gowling and Henderson
Barristers and Solicitors
B. Neale
Reg. Personnel Admin.
Human Resources Branch
Ministry of Health
December 2, 1987
DECISION
The Grievor, Patricia Campbell, is a contract employee
working at the London District OHIP office. She is a member of
the unclassified service, but not a seasonal employee, and is
not a civil servant. She was an applicant to a job competition
held in early 1986 to fill two vacant permanent positions in
the classified service. The competition was open to members of
both the classified and unclassified services. There were ten
applicants, all from the unclassified service, of whom five,
including the Grievor, were interviewed. The Grievor grieves
that she should have been one of the successful applicants.
It is argued for the Employer, by way of preliminary
objection, that by virtue of Article 3 of the collective
agreement Article 4 - Posting and Filling of Vacancies or New
Positions - under which the competition was held, does not
apply to the.Grievor. Since she is not a civil servant, she
cannot grieve under an article that has application only to
such employees. It is submitted for the Grievor that the
competition was an Article 4 competition to which the Grievor
was entitled to and did apply. The Employer, having conducted
an open competition under the article, cannot now be heard to
say that its provisions do not.apply to her because of her
employment status.
At'the request of the parties the Board agreed to hear and
determine the issue raised by the Employer's objection, the
outcome to result either in the later hearing of the grievance
on its merits or in. its final disposition.
i.
The relevant provisions of Article 3 are:
3.1 The only terms of this agreement that apply to
employees who are not civil servants are those that
are set out in this Article.
3.2 Sections 3.3 to 3.15 apply only to unclassified
staff other than seasonal employees.
3.15 The following Articles shall also apply to
unclassified staff other than seasonal employees:
Articles 1, 9, 11, 12, 15, 16, 17, 21, 22, 23, 25,
27, 3i, 36 and 85.
Articles 3.3 to 3.14 do not contain job competition provisions.
There is no mention of Article 4 in Article 3 and it is
therefore an article that applies only to employees who are
civil servants. While the Grievor has the right to grieve
under Article 27 - Grievance Procedure - because it is made
applicable 'by Article 3.15 to employees who are not civil
servants, that right is necessarily limited to grievances based
on articles which are also made applicable to such employees by
Article 3.
The Board cannot so construe Article 4 as, in effect, to
add it to those articles now contained or referred to in
Article 3. The unfortunate result, from the standpoint of
members of the unclassified service, is that they have no
recourse where an Article 4 competition in which they have
participated may have been improperly conducted. However, this
seeming inequity is for the parties, not the Board, to address.
In Ahuwalia and Vashist. GSB 0725/83, the employment
status of the two grievors was identical to that of the
Grievor. The Board found that Article 4 did not apply to them
and that they could therefore not grieve that their seniority
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was not considered in a job competition. That decision was
followed in Wood. GSB 1527/85.
We concur with those decisions and accordingly find that
the grievance is not arbitrable.
These proceedings 'are terminated.
Dated at TORONTO this 11th Day of January, 1988
P. Draper
Vice Chairman
/4+dld&.
G. Nabi
Member
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