HomeMy WebLinkAbout1987-2132.Andersen et al.89-06-15.p q* f ON,AAIIIO EwLOYEsML4 CO”RONNE
CROWNEMPLOYEES OE “ONTARPJ
GRIEVANCE COMMISSION DE
q m BOARD DESGRIEFS
SETTLEMENT REGLEMENT
IN THE NlUYER OF AKARBITRATION
Under
THE CRONNEHPIOYEES COLLFCJ!IVE BARGAINING ACT
Before
THE GRIEVANCE SBTTLENENT BOARD
J3etween:
Before:
OPSEU (Andersen et al) :
-and - Grievor
The Crown in Right of Ontario
(Ministry of Transportation) Employer
J. Forbes-Roberts
L. Robbins
W. Lobraico
Vice-Chairperson
Member
Nember
APPFARING FOR
THE GRIEVOR:
P. Lukasiewicz
Counsel
Gowling & Henderson Barristers & Solicitors
APPEARING FOR
THE EmxoYEFt:
M.A. Smeaton Manager Staff Relations
Human Resources Branch
Ministry of Transportation
Hearinas: April 7, 1988
November 15 & 16, 1988
5 AUARD
-2-
Thls case Involves job competition LC/87-13 for the position of Supervisor, Records Unit in the Production Support Section,
Support Services Office, Licencing and Control Branch, Kingston, Ontario. Thtrt art four (4) gricvors all of vham have greater senioritg "ith the ministry of Transportation and COmmunicetion
(“the E&,loyer”) than the successful candiate.
The successful candidate was notified of these proceedings
and of his right to fully participate.
At the outset of the hearing a considerable amount of evidence vas put in on the agreement of the parties in document
form. This included the five (5) candidates’ application forms, the job posting, the intervitv questionnaire, the questionnaire
ansver sheet along vith the marking scheme, a summary of the
candidates' interview score, a summary of the veights assigned to each of the questionnaire sections, the posted Poeittes*e Job
Specification, all of $he materials which the selection panel saw on the four (4) gritvors and the successful candidate and their intervitv scores.
The Union called three (31 of the grievors, Ms. B. Bos-
Myatt, Hr. M. Fernandes arid be. D. Kennedy. At the relevant time
both Ms. Bos-Hyatt and Ms. Kennedy uere clerks in the Records Unit. Both had performtd.all of the duties associated with that position. In addition, when .their .supttvisor had gone on
vacation or vas absent for some reason each had replaced her. Indeed for some months prior to the job posting the clerks in the Records Unit had been vithout a direct supervisor. Us. Bos-Hyatt and Ms. Kennedy also trained ntv clerks and summer students.
At the time of the posting Mr. Fernandte was vorking in the
mail room. He had, hovever, spent three (3) months as Acting
Supervisor in the Records Unit.
Folloving the testimony of these three (3) vitnesses the Union closed its case. Employer counsel then mo-Jed for a non- suit arguing the Union had not met the onus of establishing at least a 'v cast that the grievors were relatively equal to the successful candidate vu qualifications and ability. Upon being put to his election employer counsel chose not to call any evidence.
It is,of course, correct that the Union bears the onus of establishing a w case. Hov heavy Is that onus and has it been met in this case?
Because of the nature of a job competition the Union need only adduce sufficient evidence to bring the grievor(s) and the successful candidate within a common circle. G'V 1 mv within it 4 qraqp the Union must only establish the
Lelative equality of the candidates vis a vis their
qualifications and abilities. In other. voids it is only incumbent upon the Union to get the grievers into the competition. The
-
,
-3-
onus then shifts to the Employer to explain the manner in vhich points vere avarded, and to justify its ultimate choice.
The Union put into evidence the application forms of all
five (5) candidates. They contain full education and employment histories, and constitute the sum total of the information vhich the Union can be reasonably expected to possess. (The Union could of course have called the incumbent as a vitness but ve fail to see vhat this vould have added to the case.) Having
examined these documents ve also find that they establish the relative equality of the grievors and the successful candidate, and that the Union has therefore met the onus.
Having found that the Union established a u-facie case thereby shifting the onus to the Employer to justify its ultimate choice, the Employer's motion for a non-suit must faii and the grievances are hereby alloved.
Ye now turn to the issue of remedy. Having considered the
submissions of both parties we order the following:
1. The results of the previous competirion are null and
void. .I
2. The competition is to be re-run amongst Bos-I4yai?t,
Eagan, Fernandes, Kennedy and Berry.
3. As far as is homanly possible the new panel is not to
codsider experience gained aft.er August 11, 1987.
4. No member qf the fir.st selection panel is to be part of
the new panel.
‘I 5. The Board remains seized in the event of difficulty in
the implementation of this award.
DATED AT Toronto this 15th day of June , 1989.
@k2 ---- ---2 -------------- /J J. Fakbes-Roberts. Vice-Chairperson
,---,1-----,---------------------
L. Robbins, Member
_-_-~_--_--_--_-~~~~~~~~~-~~~~~~~
V. Lobraico, Member