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HomeMy WebLinkAbout1987-2000.MacPherson.88-05-16Between: ------- IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVB BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Hollis MacPherson) and The Crown in the Right of Ontario (Ministry of Community and Social Services) Grievor Employer Before: ------ For the Grievor: --------------- For the Emploper: Hearing: March 14, 1988 N.V. Dissanayake 1. Taylor R. Trakalo Vice Chairman Member Member 8. Hanson Counsel Cavalluzzo, Hayes 6 Lennon Barristers 5 Solicitors L. Brossard Counsel Ministry of community and Social Services DECISION -------- -2- These are two grievances arising out of circumstances surrounding a job competition for a position of. Income Maintenance Officer. Since the issues raised in the two grievances are distinct it is convenient to deal with them separately. In this grievance the grievor claims that she was wrongfully denied one of the 18 posted positions for Income Maintenance Officer in Toronto and that based on her qualifications, ability and seniority, she should have been awarded one of them. In redress she claims a position of Income Maintenance Officer at a location of her choice; lost wages, benefits and seniority and interest, moving expenses. and travelling expenses of $350 per month fork the ceriod that she was denied the position contrary to the collective agreement. The employees who were successful in the job competition were given notice of the hearing. A number of them were present at the hearing but chose not to participate in the proceedings. At the commencement of proceedings, the parties advised the Board that all but one aspect relating to the remedy had been resolved. The employer conceded -3- that it had contravened the collective agreement by not awarding one of the positions to the grievor. The employer was willing to award a position of Income Maintenance Officer in Toronto at a location of the grievor's choice. The issue of compensation was also resolved between the parties except with respect to the grievor's claim relating to travel expenses. The grievor explained this claim for travel expenses as follows. She commenced her employment with the employer as an Income Maintenance Officer in September 1981 at the Niagara Falls, Ontario, office. In December 1981, upon becoming a permanent employee, she transferred to St. Catherines, Ontario and has since been employed there. In 1984 she married her present husband, who was then employed in Toronto. Upon the marriage, the couple established their residence in St. Catherines and the grievor's husband continued to be employed in Toronto. Sometimes he commuted between St. Catherines and Toronto, but on other days he stayed overnight with his parents in Klieneburg, Ontario. The grievor testified that under this arrangement her husband made on average four one way trips per week between St. Catherines and Toronto. . The grievor saw the job posting as an opportunity to transfer to Toronto and to be "united" with her husband in Toronto. The grievor I I’ ’ .’ -4- claims that had she been awarded a position in Toronto in accordance with the collective agreement her husband would no longer have had to commute -between St.Catherines and Toronto. It is the expenses incurred by her husband in continuing to commute that forms the basis for the grievor's claim for travel expenses in this. grievance. She claims that she and her husband maintain a joint bank account and that her husband's travel expenses come out of this joint account. In these circumstances, she deems her husband's travel expenses as a "family expense" which is partly borne by her. Both counsel were agreed that the recoverability of this claim depends on the application of the well known pr.inciples of remoteness and foreseeability of damages. However, that is the extent of their agreement. Counsel for the grievor concedes that the employer's breach did not "cause" these expenses in the sense that the husband had been incurring them ever since their marriage in 1984. However he contends that had the employer complied with the collective agreerent, the grievor would have moved to Toronto and at that time her husband's travel expenses would have ceased. Since the grievor and her husband maintained a joirit bank account out of which these expenses were paid fcr, ccunsel -5- submits that the lO~SS was not a loss affecting the husband alone, but it affected the joint assets of the grievor and her husband. With regard.to foreseeability counsel contends that the loss was foreseeable.. The evidence indicates that upon her marriage, the grievor appointed her husband as beneficiary of her insurance policy,maintained through employment and that the information provided to the employer included the fact that her husband -*as employed in Toronto. In addition, the grievor testified that.her supervisor and former supervisor attended her wedding and were aware that she was marrying someone employed in Toronto and that in any event it was common knowledge at the workplace that her husband was employed in Toronto. Counsel submits that although the grievor did not specifically advise the employer of her husband's travel arrangements and there.is no evidence that anyone on the selection panel was aware of the grievor's personal circumstances, if the selection panel had consulted the grievor's supervisors and examined her personnel file (as it had a duty to do) that would have immediately become evident. Counsel for the employer on the other hand submits that the claim should be dismissed because the loss is that of the husband and not of the grievor. She claims that even if the. Board determines that the -6- husband's travel expenses constitute a loss incurred by the grievor, such loss is too remote and could not have been -reasonably foreseen by the~employer. : We agree with the position of the employer counsel. Even if the Board accepts all of the submissions of counsel for the grievor, at best what the evidence establishes is that the employer knew or ought to have known that the grievor's husband was employed in Toronto. There is no evidence that suggests that the employer knew or ought to have known about th2 specific travel arrangements between the grievor and her husband,or about the joint bankaccount. Assuming, without finding, that the husband's travel expenses can be said to be a loss incurred by the grievor, in the absence of any knowledge as to the financial arrangements between the. grievor and her husband, it would have been impossible for the employer to reasonably foresee any loss to the grievor. In all of the circumstances we find that even if the grievor personally incurred a loss as a result of the employer's breach, that loss was not reasonably foreseeable by the employer. Consequently,' the same is not recoverable. Accordingly, the grievance is hereby dismissed with respect to the claim for travel expenses. ‘- 1 -7- File 2001/87 This grievance states as follows: I grieve that the Selection Committee, 3r.L. 5. Strang, Mr. A. Folton and~Personn21 Branch (Toronto) of the Ministry of Community and Social Services breached the confidentiality of the Grievor by failing to follow generally acceptable personnel procedures regarding Competition TAO 16-87. BY way of remedy for the alleged breach of confidentiality, the grievor requests that she b2 credited with one day of vacation leave and thres days of "discretionary leave" with full pay and benefits. The allegation of breach of confidentiality stems from three incidents relating to the grievor 1 s application for a position of Income Maintenance Officer in Toronto in the same job competition that was the subject of grievance number 2000/87 dealt with above. The alleged incidents are as follows: ta) The grievor was employed in. the Welland office of the Ministry at the time of the competition. An employee of the Ministry in Toronto called a member of management in the Welland Office. A clerk in the Welland ofc'ce A& who answered the call advised the caller that the party being called was not available. Th2 caller left a message with the,clerk that h2 was calling to obtain a reference relating to an appiication by the -1 / . -a- 7 grievor for a position in Toronto. As a result of this the clerk became aware of the fact that the grievor had applied for .a.position inToronto. (b) At a party given by a ministry employee, a former supervisor of the grievor told a group of three people, two of whom were employees at the Welland Office, that the grievor had applied for a position in Toronto and that he had provided a reference for her. During this party he also asked an employee of the Welland office, whether the grievor "is still a prob,lem" at work. (c) A former supervisor of the grievor told a clerk at the Welland office that a member of senior management had requested him to provide a negative reference for the grievor. Counsel for the employer advised the Board that the employer categorically denies each and every allegation set out above. However, she contends that even if the allegations were true, this Board lacks jurisdiction to deal .with a grievance .based on a breach of confidentiality. Both parties agreed that the Board should rule on the issue of jurisdiction, assuming the facts to be established. The grievor's position in support of the grievance I ? ‘. -9- was twofold. First, counsel submits that the right of confidentiality is part and parcel of article 4 which deals with "Posting and Filling of Vacancies or Xsw Positions". In the alternative, counsel sub-its that in exsrcising the. management right to post and fill vacancies, the employer is subject to an implied duty to act reasonably and-that this 'includes the duty to abide by the right to privacy.and confidentiality of the job applicants. Counsel for the employer submits that the Board must derive its jurisdiction to deal with a grievance through the collective agreement or the Crown Employees Collective Bargaining Act. She contends that this grievance is not referable to either. Counsel for the grievor points out that the job posting provision in article 4 has two broad aspects, an employee's right to apply for a vacancy and an employee's right to be fully considered for that vacancy. He contends that the right to apply can only be effective if there is a guarantee of confidentiality. According to counsel the absence Gf s 'U c I-. a guarmtee would have a "chilling effect" on the employee's desire to apply for vacant positions. The issue here is not whether confidentiality is desirable but whether there -lO- is, in the language of article 4, an implied duty to maintain confidentiality. Without setting out the rather lengthy provisions in article 4, we. are of the view that to imply such a duty in article 4 would be to materially alter and add to the collective agreement. This Board has no jurisdiction to do so and indeed the Board is expressly prohibited from doing so. (Article 27.16) We reject counsel's position based on article 4. The Board next turns to the contention that there is an implied obligation to act reasonably in exercising management rights. Article 1811) of the Crown Employees Collective Bargaining Act, after setting out the general and specific management rights concludes with the following: II... and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board." At least one prior decision of this Board has regarded these words as ousting the jurisdiction of this Board with respect to management rights declared by the Act to be matters within the exclusive function of the employer (See, OPSEU (L. Cripps) and Ministry of Correctional Services, 660/86 (February.8, 1988). Quite apart from the express exclusion of c -11- * jurisdiction in section 18(l), in our view there is no basis for the Board to imply a duty t0 maintain confidentiality in exercising a management right in the collective agreement. The law cn the extent to which a duty to act reasonably in exercising management rights can be implied, particularly the Court of Appeal decisions 'in Re- Metropolitan Toronto Board of Commissioners of Police and M2trODOlitan Police Association et al (1981) 124 D.L.R. (3d) 684 and & Council of Printina Industries of Canada and Toronto Printing Pressmen and Assistants' Union, No. 10 et al, (1983) 42 O.R. (2d1.404 have been reviewed by this Board (OPSEU (V.G.Da Costa) and Ministry of Health, 570/84, January 15, 1985) and by other Boards of Arbitration (& Toronto East General Hospital, (1984) 13 L.A.C. (3d) 400 (Burkett) We find, as did the Board in Toronto East General Hospital (supra), that the two Court of Appeal decisions read together stand for the proposition advanced by arbitrator Swan in Re Meadow Park Nilrsina Home, 1983 9 L.A.C. (3d 137: That is, "If based on the general law of implied terms in contracts, as the general law may be adapted to the particular case of collective agreements, the implication arises that a particular management function must be exercised in a particular way, then the -12- P arbitrator is bound to make that implication since it arises from the collective agreement from which the arbitrator draws his or her jurisdiction and which constitutes the entire bargain between th2 parties." Applying that proposition to the case at hand: the issue is whether an implication arises from the collective agreement that in exercising its right to fill vacancies, the employer' must maintain confidentiality. We are unable to find anything in the collective agreement that can reasonably b2 said to g i v e rise to such an implied dGty. Where the implication does not arise from the agreement, the Court of Appeal decisions referred to above prohibit this Board from reading such a duty into the agreemant. Accordingly, it follows from the above that this Board ha.s no jurisdiction to deal with the grievance alleging bre.ach' of confidentiality. Accordingly this grievance is hereby dismissed. The Board wishes to,make it clear that its decision is limited to the narrow finding that in the circumstances the alleged breach of confidentiality does not constitute a violation of the collective agre2ment. Its decision does not reflect on the desirability of the employer maintaining confidentiality relating to job - 13 - applications. Nor does this decision address the issue of whether a person whose confidentiality is breached may have redress in some other forum. Dated at Toronto, Ontario this 16th day of May, 1988. /z--L/ * -& ------------ -- --- ---- Nimal V, Dissahayake Vice-Chairman ’ -72 . F. Taylor, Nembe I/ R. Trakalo, Member