Loading...
HomeMy WebLinkAbout1986-1115.Fu.91-03-051 I (- $ .‘, _ DISSENT Re: G.S.B. 1115/86 Wei Fu I believe that a simple "I dissent': would suffice at this point, but I cant resist the opportunity to comment further. Here is a grievance which arose in July 1986 and first came to a Boa~rd hearing on May 11, 1988. Board hearings then dragged on during 1988 with an interim decision in September 1989. Further hearings were held in August and October 1990, with another interim decision in 1991. Again more hearings were held in August and Septem- ber finally concluding on October 31, 1991. Now we have a final decision in January 1994! How could this all happen? Perhaps all those involved are partially responsible. A lack of a clear cut policy to drop grievances which are not promptly handled could also play a part. The decision which gives the grievor a posit- ionwhich he applied,for over 7 years ago, for which he had not been selected nor even found fully qualified to be granted an interview is absolutely ridiculous. Hope fully the parties involved will be able to resolve this difficult situation. SETTLEMENT RiGLEMENT DES’GRIEFS 11X/86 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE: FOR THE GRIEVOR FOR THE EMPLOYER HEARING: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Wei Fu) - and - Grievor The Crown in Right of Ontario (Ministry of Citizenship) Employer T. Ii. Wilson Vice-Chairperson I. Freedman Member W. Lobraico Member R. Stephenson Counsel Gowling, Strathy & Henderson Barristers & Solicitors L. McIntosh Law Officer Crown Law Office, Civil Ministry of the Attorney General May 11, 1988 August 22, 1988 September 29, 1988 October 6, 1988 December 8, 1988 August 21, 1990 October 24, 1990 2 SUPPLEMENTARY DECISION A decision was released with respect to this grievance on 29,September 1989. The grievance arose out of a job competition for a Race Relations Consultant (Human Rights Commission Officer 2) with the Race Relations Directorate. The Grievor had been denied an interview. The order in the Decision was: “Accordingly, I direct the competition to be reopened and the grievor granted an interview. The Board will remain seised pending the completion of its directive.” When the panel was reconvened on August 21, 1990, it was informed that the Board’s order had not been carried out because (1) the entire competition file had been lost and (2) two of the three panel members in the original competition are no longer with the Ministry. Furthermore, that first day of the reconvened hearing had to be adjourned to give proper notices to various position incumbents who might be affected by the hearing. At the recovened hearing on October 24, four incumbents attended whose positions could possibly be affected and were given full status to participate in the proceedings. Two of the interveners, Ms Adeno-Paul and Ms Siu, were successful candidates in the 1986 competition. The other two, Ms Jeffers and Mr. Radford were successful in subsequent competitions, The jurisdiction of this Board with respect to this matter is based on subsection 19(l) of the Crown Emolovees Collective Bargaining Act R.S.O. 1980, c. 108 as amended which provides: Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable. such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the collective agreement. The relevant provision in the Collective Agreement is Section 4.3 which provides: In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal length of continuous service shall be a consideration. ARGUMENT . 3 Mr. Stephenson for the &ion stated to the Board that there are two issues: (1) it is the Union’s position that the Board should order that the Grievor be given a .position as a Race Relations Consultant with the Human Resources Directorate; and (2) with respect to the effect on the other parties, namely the incumbents, the Union takes no specific position; it however, does not appear to be open to “bump” either Ms Siu or Ms Paul who were both tied for first position in the original competition. Ms McIntosh for the Ministry submitted ,by way of remedy that the Grievor be granted an interview for the next opening or alternatively, the most recent competition be reopened and the Grievor compared with the two successful candidates, Ms Jeffers and Mr. Radford, both of whom were parties before the Board in this hearing. The principal thrust of the Union’s submission is that the Grievor should get a remedy and it should in no way be a diminution of the original remedy. Not only is the Grievor not responsible for the frustration of the original order of this Board, but in fact the Ministry is. Since the Employer conducted the subsequent competitions after the filing of the grievance, they should not affect the Grievor’s position. There is therefore an opening for which the Grievor is qualified. In its submission only the appointment of the Grievor to the position would put the Grievor in the position he would have been placed in had the order of the Board of 1989 been implemented. Any rerun of competitions involving the successors i.e. Mr. Radford and Ms Jeffers or any persons who did not grieve would not be the same position he would have been in had the original order been carried out. The Union referred us to Reaina v. Ontario Public Service Employees: Union &L. (1982) 35 OR. (2d) 670 (Divl. Ct.) which upheld the Board’s decision in Zuibrycki and Ministrv of lndustrv and Tourism (GSB 100/76). He submitted that our situation was similar in that there has been a great passage of time since the grievance was originally filed; there is now.an impossibility of rerunning the competition; there is a need for finality and a preliminary finding of qualification by the grievor in the initial decision. On the issue of other qualified candidates, he referred us to Marks and Ministrv of Natural Resources GSB 566/80;McNamara and Ministrv of Consumer & Commercial Relations GSB 272/81; Chit-be and Ministv of the Attorney General GSB 273/80. Counsel for the Ministry made two principal arguments: (1) the Board cannot give 4 the Grievor the position under these circumstances; and (2) alternatively. if it is open to the Board to give him the position, it ought not to do so. With respect to the first point, Counsel argued that a competition may be attacked for two reasons: (1) the process is flawed, or (2) management’s assessment of the relative qualities of the candidates was wrong. In her submission, Zuibrvcki stands for the proposition that the Board can substitute its opinion for that of management in the appropriate circumstances in an assessment of relative qualifications. But it speaks about the sparing use of that right in the Board. The Board cannot substitute its opinion for the Employer in the first situation: i.e. where the selection process has been flawed. In her view, it was that distinction which was used to distinguish Re Falconbridge Nickel Mines Ltd, 119731 1 O.R. 136 (CA). Counsel referred the Board to Meoham and Liquor Control Board of Ontario (GSB 570/81) and Leslie and Ministry of Transoortation and Communicat@n8 (GSB 126/79) at page 7 for the same distinction. At the time of this panel’s original decision with respect to the Grievor, Fu, it did not determine whether he was qualified, but that he was entitled to an interview. The next step would have been to determine whether the Grievor was relatively equal to the other successful candidates. In her view, the decisions in @it&s and I&& do not support an argument by the Union that the subsequent competitions were void: both Ms Jeffers and Mr.Radford had been valid candidates in the 1986 competition. The Ministry Counsel’s second argument was that even if the Board might consider it open to it to award the position to the Grievor, it ought not to do so. The standard that the Grievor ought to be put in a position that he would have been in had the breach not occurred does not entitle this Grievor to the position. Z&ty&i shows that the Board’s discretion is exercised sparingly and only in extraordinary circumstances. Therefore, in these circumstances the Grievor should be granted an interview. Unlike the situation in i’uibrycki, there is not evidence that the Grievor cannot get a fair interview from the Employer. She cited the Decision in sry of Rem (GSB 230/82). In that case, the Board ordered a new competition including others who had not grieved their lack of success in the competition. Therefore, Counsel proposes that the Grievor should either take part in the next competition or the last competition should be reopened. 5 Finally, there are only four positions and it is not within the jurisdiction of the Board to order the creation of a fifth position. Additional Facts: Ms Jeffers and Mr. Radford were actually candidates in the original competition. Ms Jeffers was offered an interview, but declined it as she had already accepted another position. Mr. Radford was granted an interview. Neither Ms Jeffers nor Mr. Radford were classified staff at the time of the 1986 competition and therefore could not have grieved. Reasons for Decision ‘The salient point in this case at this stage is that the entire process of administering the Collective Agreement in respect of the subject matter of this grievance has been wholly frustrated to date and the fault lies squarely on the shoulders of the Ministry. In the original Decision, this Board found that the Ministry’s refusal to give the Grievor an interview in the original competition was wrong. The Decision made findings that in a number of areas the original scoring of the Grievor’s application was wrong. That scoring was not just technically wrong: it was substantially wrong. Now we hear that the Ministry has lost the competition file. The Union was content to characterize the Ministry’s loss of the file as negligence. In my view, there can be no question now of leaving matters to the Ministry with respect to Mr. Fu’s application for a position with the Human Rights Directorate; the very credibility of the process is now at issue in this case. What this Board is now dealing with is the effectiveness of remedy under the CECB Act. The case law is clear that this Board’s remedial jurisdiction is both liberal and broad as the Divisional Court has repeatedly reminded this Board.’ The original Decision looked to carrying forward fully section 4.3 of the Collective Agreement. That is now not possible because of the acts of the Ministry. The original competition, even apart from its antiquity and original flaws cannot be revived. Furthermore, only two of the original successful ’ See: the Divisional Court decisions in Zuibrycki 35 O.R.(2d) especially at pages 676- 7 and Ontario Public Service Employees’ Union and Carol Bery v. Ontario Ministry of Communitv and Social Services (1985), 15 O.A.C. 15 reaffirmed and applied in Ontario Public Service Emoloyees: Union and David Anderson et al v. Ministry of Natural Resources et al (1990) 75 O.R.(2d) 212 [application for leave to appeal to the Court of Appeal has been filed]. ! 6 competitors are still on the job. There were four openings in the original competition. The two incumbents who succeeded to the other two positions took subject to the contingencies of this grievance. It seems that Ms Jeffers did not choose to go to an interview in the original competition and neither she nor Mr. Radford could orieve under : the Collective Agreement. Normally, that would end our concern for their situation’ but because it is the Ministry and the Ministry alone which has created this situation, and because they were parties here before us. I do have more to say about their plight. But : first I turn to the Grievor. The Ministry frustrated the Order of 29 September, 1989. I agree with the Union’s submission that the Grievor must not be put in a worse position than he would have been had the Board’s original Order been implemented. At the same time, the events have made that Order or anything remotely resembling it impossible of implementation. : Accordingly, another remedy at least as favourable to the Grievor as that of 29 September must be fashioned. This Board found that the Grievor was qualified at the minimum to receive an interview. The Board did not specifically decide more because it expected its Order to be carried out. But it did make extensive findings of fact which are still binding on the parties. There can no competition now: Ms Siu and Ms Adeno-Paul are : wholly qualified and their positions are not at stake because there were four original positions; Ms Jeffers and Mr. Radford took their positions subject to the grievance. There is no one else in issue. Accordingly, it is clear that the Grievor should have a position if he is qualified to perform it. This Board did not actually answer the specific question of *. With respect to running a competition involving Ms Jeffers and Mr. Radford on the theory that they were in the original competition, it is my view that only those who are successful in a competition and those who grieve are eligible to participate in any rerun of a competition. In arguing on the basis of Ms Saultman’s approach in Craiowell Ms McIntosh conceded that the practice has not been uniform. Ms Jeffers declined an interview so that she waived any claim. Both Ms Jeffers and Mr. Radford could not grieve under the Collective Agreement and they cannot be in a better position than someone who could grieve but did not grieve. Their standings before this Board were granted on the grounds that they are currently incumbents and not because they were in the original competition. Furthermore,there were numerous persons in the original competition who received interviews and the file is lost so that we would not even be able to ascertain who they are. 7 whether the Grievor was qualified for the position although we did make certain findings of fact which shed some light on that and they are binding on the parties. Accordingly, the Board orders as follows: 1. The Ministry is to advise the Board and the parties to these proceedings whether it considers the Grievor qualified for a position of Race Relations Consultant within 30 days of the date of this Decision. 2. If the Ministry considers the Grievor qualified for the position, it is forthwith to appoint the Grievor to the position. 3. If the Ministry does not consider the Grievor qualified for the position, it is to show cause to this panel why it does not consider him qualified, the onus of pursuasion resting on the Ministry. 4. If the Grievor is found qualified either by the Ministry or this Board, he is to be compensated for any losses which he has incurred as a result of his earlier denial of the position in 1986. 5. With respect to Ms Jeffers and Mr. Radford, this panel makes no finding at this time as to whether they would be displaced in the event of the Grievor’s appointment to a position with the Directorate, but will remain seised to entertain any grievances by them that they may have with respect to dismissal, lay-off, demotion or change of status resulting from the implementation of this Decision. 6. This panel retains jurisdiction over the implementation of this Decision. Dated at Toronto this s&lay of Harcd991. I /‘; THOMAS l-i”. I. Freedman -I DISSENT** (DISSENT ATTACHED) W. LOBRAICO Member DISSENT Re; G.S.B. 1115/86 G;ei Fu This member of the Board dissented in the original decision released on September 29, 1989. Consequently I am unable to agree with this subsequent award which seems to put the grievoe in much more favourable pos- ition than he is entitled to. The best solution now would be to permit the grievor to compete in the next competition. If he is successful then the parties can negotiate an appropriate settlement covering back pay. This is the most practical solution in view of the cir- cumstances and the lengthy delay.