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Home My WebLink About1987-2250.Giasson.88-05-20. Between: IN THE MATTER OF AN ARBJTRATION under -. THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT beford THE GRIEVANCE SETTLEMENT BOARD OPSEU (G&on) Grievor For the Grievor: For the Employer: Hearing: and The Crown in Right of Ontario (Ministry oE Labour) Employer J.H. Devlik. Vice Chairman T. Traves Member. : W. Lobraico Member L. Rothstein D. Wright Counsel Gowling & Henderson Barristers & Solicitors Y. Malpass Staff Relations Officer Ministry of Labour March 25, 1988 : 1 In July of 1987, the Employer posted a number of vacancies in the position of Construction Safety officer in various offices of the Construction Health and Safety Branch throughout the province. The position to which the.Grievor, Gerry Giasson, claims entitlement, was located in Sudbury, Ontario. This particular job,would have constituted a lateral transfer for the Grievor who occupied a similar position in another branch of the Minis.try. The Grievor was denied an interview for the vacancy which arose as he admittedly lacked fluency in French, a requirement for both the position in Sudbury and a number of positions in Ottawa. At the outset of the hearing, Ms. Malpass on behalf of the Employer raised a preliminary objection to arbitrability. It was the position of Ms. Malpass that Mr. Giasson's grievance is inarbitrable as the requirement for fluency in French was established by the Employer.in the exercise of its management rights and, therefore, is not reviewable by this.Board. -_ <- The provisions of both the collective agreement and the Crown Employees Collective Barqaininq Act which are relevant to the Employer's objection are as follows: COLLECTIVE AGREEMENT "ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW POSITIONS 4.1 When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at ,, 2 least ten (10) working days prior to he _:established closing date when advertised within a ministry, or it shall be advertised .for at least fifteen (15) working days prior to the establishing closing date when advertised service-wide. All applications will be acknowledged. Where practicable, notice of vacancies shall be posted one bulletin boards. 4.2 The notice of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required, the hours-of-work s.chedule as set out -in Article 7 (Hours of Work),.and the area in which the position exists. 4.3 In filling a vacancy, the Employer shall give primary'consideration to qualifications and ability to perform the required duties. Where qualificationsand ability are relatively equal, length of continuous service shall be a consideration." . . . "ARTICLE 27 - GRIEVANCE PROCEDURE 27.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged.contravention of :~ this 'Agreement, including any question as to .~ whether a matter is arbitrable. 27.18 +The Grievance Settlement Board shall have no jurisdiction to alter,~ change, amend or enlarge any provision of the Collective Agreement." ~CROWN EMPLOYEES COLLECTIVE BARGAINING ACT "U.(l) Every collective agreement shall be deemed to provided that it is the exclusive function of the employer to manage, which-function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, assignment, discipline, 3 dismissal, ,suspension, work methods and procedures, kinds and locations of equipment and classification of positions: and (bl merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of-a board. . . . 19.11) 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 agreement." Although Section lS(2) of the Crown Employees Collective Bargaining Act also specifies certain rights of grievance, Ms. Rothstein, who appeared on behalf of the Grievor, acknowledged that she was not relying upon this section of the Statute to , support the arbitrability of Mr.'Giasson's grievance. It was the submission of Ms. Malpass that the Employer is entitled to establish the standards to be met by employees seeking positions within the Ministry and that there is no fetter . . 4 on this right contained in the collective agreement. Ms. Malpass ! I ..'. suggested that the requirement for fluency in French is similar to the Employer's right to publish a dress code. In this regard, Ms. Malpass referred to OLBEU (Mr. Michael Sullivan) and The , ;,&f<.;; Crown in Rightof Ontario (Liquor Control Board of Ontario1 G.S.B. File No. 578/81. In that award, the majority found that in the absence of the imposition of discipline, the reasonableness of a dress code imposed by the employer was a matter beyond the jurisdiction of the Board. Ms. Malpass also relied,upon OPSEU (L. Cripns) and The Crown in Right of Ontario ,. (Ministry of Correctional Services) G.S.B. File No. 660/86 in '-*;?p+, &,;: ;,:i.: which the grievor.was excluded from a job competition as he was employed outside the area of search established by the employer. ,. * :.; .I. ., .- ,. .: There the majority found that the right to limit the area of search geographically 'involved the exercise of a management-,right ', .,-,:',.', ; which was not limited by any provision of the collective agreement and dismissed the grievance. Alternatively Ms. Malpass contended that the requirement 'Z. for fluency in French for the vacancy which arose in Sudbury was ,, . . bona fide and in this regard, -- Ms. Malpass relied upon the French Language Services Act, 1986, the,nature of the community being, served by the position in question and'the composition of the Construction Health and Safety Branch in that location. Us. &-'x.e :g$z,... ', Malpass submitted, however, that the Employer was entitled to a determination of its preliminary objection prior to the Board proceeding to hear the grievance on its merits: OPSEU (Mrs Jane 5 H. Hooevl and the Crown in Right of Ontario (Ministrv of Health) G.S.B. File No. 348/81. It was the submission of Ms. Rothstein that the grievance involves a claim that the Employer violated Article 4 of the collective agreement and that the Board has jurisdiction :to determine whether the qualifications established by the 'ii Employer for the position in question are reasonably related to the job to be performed: OPSEU (Raymond McCormick) and The Crown in Right of Ontario (Ministrv of Correctional Services) G.S.B. File No. 1141/84. Were the Board not at liberty to enter into * such an inquiry, Ms. Rothstein suggested that the Employer could establish qualifications bearing no relationship to the work to :,be done, deprive qualified applicants of positions to which they were entitled and yet, the matter would not be subject to review. .-.?J, ~I Ms. Rothstein advised the Board that it was the position of the Union that the requirement for fluency in French for the position in Sudbury was not‘reasonably required and was : potentially discriminatory on grounds proscribed by the Ontario Human Riqhts Code. Following the submission of the parties, the Board ::. ?. delivered an oral ruling dismissing the preliminary objection advanced by the Employer: The reasons for this ruling are as follows: Mr. Giasson claims that he was improperly denied a 3 vacancy which arose in Sudbury in the posit,ion of Construction 6 Safety Officer and to.this extent, the grievance involves an alleged violation of Article 4 of the collective agreement. This Article specifies' the procedure to be followed for the posting and filling of vacancies. Article 4.02 provides that a notice of vacancy shall state, among other things, the qualifications required and'Article 4.3 provides that in filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and lability are relatively-equal, length of continuous service shall .be a consideration. Article 4.3 of the collective agreement clearly relates the qualifications to be considered by the Employer to the required duties to be performed and in keeping with the jurisprudence of this Board, we find that'the qualifications to which reference is made in Articles 4.2 and 4.3 of the collective agreement must bear a reasonable relationship to, the job to beg ,. performed: OPSEU (Walter:Boreckil and The Crown in Right of Ontario (Ministry of Natural Resources) G.S.B. File-No. 256732; OPSEU (Cook) and The Crown in Right of Ontario (Ministry of Correctional Services) G.S.B. File No. 39/'84 and OPSEU (Raymond McCormick) and The Crown in Right of Ontario (Ministry Correctional Services), sunra. In ourview, the Sullivan case, which was relied upon by Ms. Malpass, is distinguishable as there the collective agreement contained no provision dealing directly with the matter of a I’ L _-, ., ,.‘I -majority of the Board determined that the term "qualifications" ~., ,;~ , within the meaning of Article 4 of the collective agreement was- .?' 1 . not broad enough to include an applicant's place of residence. For this reason, the right.to limit the area of search geographically was found to involve an exercise of management rights which was not limited by any provision of the collective agreement. In this case, however, there can be no dispute that the requirement for fluency in French is a qualification within the meaning of Article 4 of'the collective agreement. In the result, and in accordance with the ruling _ ..-.e " .~ ,. delivered orally at the' hearing, the. Board has jurisdiction to /_:.e .j &+g*: determine whether fluency in French which was required for the vacancy in the positionof Construction Safety Officer which arose in Sudbury in the summer of 1987 was reasonably related to the job to be performed. .The hearing, therefore, shall proceed before this or another duly constituted panel of the Board. DATED'AT TORONTO, th YjJg /. is 20th day of May , 1988.. Member ,A- +@-- Member