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HomeMy WebLinkAbout1987-2486.Haynes.88-08-10RkGLEMENT .; ’ 1. DES GRIEFS ‘. Before: 2406187 IN THE MATTER OF'AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAiNING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (A. Haynes) Grievor For the Grievor: For the Employer: The Crown in Ridht of Ontario (Ministry of Health) Employer N.V. Dissanayake Vice Chairman G. Nabi Member E. Orsini Member R. Stephenson Counsel Gowling & Henderson Barristers and Solicitors M. MacKillop Counsel Sanderson, Laing Barristers and Solicitors J. Leibycz Personnel Officer Ministry of Health Hearing: June 14, 1988 - ;; - INTERIM DECISION This is a grievance wherein the grievor Ms. Anne Marie Haynes alleges that the employer violated the coiiective agreement by denying her the position of Nurse 2 general at the Lakeshore Zitpatient and Community Services Clinic (hereinafte r! "Lakeshore") in a competition posted on October 12, 1:9*7, pursuant to article 4. The successful candidate Mr. !Grk Hawkins was given appropriate notice and was present. At the outset of the hearing the Board advised Mr. Hawkins of his right to fully participate in the proceedings. However, he declined to do ~4. The employer raised a preliminary objection to the Board's jurisdiction to entertain this grievance. The Board received evidence and submissions on this issue and this decision deals solely with that preliminary issue. The employer takes the position that the grievor is not entitled to grieve the job posting and competition held under article 4, because at the reievant time she was a Regular Part-Time Civil Servant . !nrrr~narrer a "RPT" 1 yovui neci bY Pari c of tilli collective agreement and that as such $+f,c <ii; II 0 t h a v I-' _ 3 l e .~- ! I I access to article 4. Counsel for the union claims that she was not a RPT at the time Of the posting but a Regular Full-Time Civil Servant (hereinafter "a RFT") albeit on a temporary basis. In any event, the union submits that even if the grievor was a RPT, that do2s not prevent her from grieving under article 4. The facts rflevant to this issue t:2rc ;iu:t before the Board through an agreed statement of facts and sworn testimony of witnesses. The grievor is a Registered Nurse. She commenced employment at the Queen Street Mental Health Centre (Hereqnafter "Queen Street") on October 1, 1979, as a Nurse 2 general provisional. Subsequently her provisional status was removed and she completed her one year probation. Between that time and January 1986 she underwent a number of status changes, the details of which are not relevant here. The next relevant development is the signing.of a new collective agreement on January 1. 1986, which for the first time included the category of Regular Part-Time C i -I i 1 Servants in the collective agreement. On January 31, . 1986 the grievor accepted employm2nt as a RPT to January 1, 1986. retroactive On Apri .1 17, 1966, the griev.or appljed for a l temporary Regular full-time position at Lakeshore. The Lakeshore clinic was located separately, but for all administrative purposes was treated as part of the Queen Street hospital. There is some uscertainty as to whether the posting was for one or two tem.gorary full- time positions. The grievor testified that she could not recall if the posting itself stated that there were one or two pcsitions. However, she had heard prior to applying that there were two temporary positions available. Shortly after she filed her application she attended an interview. Immediately after the interview, one of the members of the SelectionCommittee, Ms. M. Johnson, Head Nurse at Lakeshore, informed the grievor that there were two temporary full-time positions at Lakeshore to be filled and further that there were nine applicants. According to the grievor, the only communication from the employer after the interview was when Ms. Johnson contacted her and informed that she had been awarded one of the positions at Lakeshore. During the cross-examination of the grievor, . counsel for the Employer suggested that the posting was made for only one position, that the grievor was not SUCC~SSfiil ii, t hi c;mpatitisn, ar,J '; ;r ,a : skc w;.s r.n notifi.ed by mail. The grievor denied all of th2se -5- suggestions. The Employer called no eViderlCi- to establish any of these assertions. The only witness called by the Employer was Mr. John Leibycz, the Regional Personnel Administretcr er Q-leen Street While Mr. Leibycz attempted to testify to the best of his ability, he had absolutely no p!ersonal knowledge about the circumstances surrounding the competition in kpril 1985 or the circumstances under w'nich t'ne grievor assumed the position at Lakeshore. The basis of his testimony was the information he gathered by talking .to various people and reviewing files inpreparation for this hearing. No documentation was presented to support the employer's assertion that the posting was for one position and that the grievor was informed that she was unsuccessful. Conspicuously absent in the exhibits filed was a copy of the posting itself, which could have shed some light as to how the grievor transferred to Lakeshore. Consequently, we are left with the uncontradicted direct testimony of the grievor that sne was verbally informed that she was awarded one of two ‘posted temporary RFT positions at Lakeshore. There is no evidence from which we Gill-8 conclude that she was unsuccessful in the competition, but was subsequently .lssigncd to Lal:csk.o:c, az tF.z2 2mploy2r ,-T G -9~ __.. - .,.- in O”f view, it really makes no difference whether or not the grievor's move to Lakeshore on May 11, 1986, occurred pursuant to a successfui bid on a posting. The partiPs agreed at the hearing, and the gri&vcr understood at the time of her move, that she was taking a Regular Full-Time position on a t. mporary basis for L the duration of the absence of a Jregular Full-,Time Nurse 2, Debbie Courneya, who was on materni:y ipave. This fact is also supported by documentation fiied with the Board. While agreeing that she went to Lakeshore to temporarily fill in for an employee on maternity leave, the grievor testified that she assumed that when the temporary assignment was completed, she would be returned to Queen Street in a Regular Full.-Time capacity. In our ,opinion, there was no reasonable basis for the grievor to have made such an assumption, and we find that at all times the Employer's intention was that upon the return of Debbie Courneya from maternity leave, the grievor was t* return to Queen Streii 63 a RPZ' SZ5 no contrary information was provided to the grievor. indeed, this is what actualiy transpired. Whilf the grievor was performing Debbie Courneya's job a t Lakeshore. tourney-a 3rL,lour~,~y. pAtr r‘~sx"--~i,>- fron: her nosltion as a RFT Nurse 2. ; ii3C positic,n was i i -7- posted on October 16, 1987, and the yrievor was among the applicants. It is this competition that gives rise to this grievance. The employer concedes that at the time of the posting the grievor was performing t$e job of a RFT ~Nurse 2. the job previous1 y performed by Debbie Courneya. It is also conceded that in that position the grievor was required to, and did, perform full-time hours and that for that period the grievor received benefits that were applicable to Regular Full-Time employees. Nevertheless, j the Employer submits that throughout this period the grievor's status remained ' that of a Regular Part-Time Civil Servant because she was only doing full-time work on a temporary assignment. The Board agrees with the Employer's position that a Regular Part-Time Civil Servant is not entitled to grieve a posting under article 4. The combined effect of articles 58.1 and 59.1 is that the only provisions of the collective agreement that apply to RPT's are those provisions in Part C and the specific articles of the "master agreement" enumerated in article 59.1. Article 4 d-es. not c C!T! 5' vi thin !I i !. h ,;‘ y- Therefore, i.f the grie.Jor was a R2gular Part Part--Time civil Servanr ar the time of the posting in question, she would not have access to article 4 and this grievance would not be arbitrable. See, Patricia Campbell, G.S.B. 103e/86. relating to the inability of unclassified employees to grieve a posting under article 4. The reasoning in Campbell, applies by analogy to Regular! Part-Time Civil Servants covered by Part C. The Employer's position that the grievor remained a RPT throughout her employment at Lakeshore is based on the premise that what occurred was an assignment of the grievor to Lakeshore as a femporary replacement for a Regular Full-Time employee. Counsel points out that ' assignment is a management right pursuant to article 18 (II (a) of the Crown Employees Collective Baruaininq jii The temporary assignment lasted some 21 months. Except for a period of about one month, through this period the grievor was doing the job of ~a Regular Full- Time employee. She did full-time hours. Employer counsel admitted that she was treated as a fuil-time employee because she was dcing full-time hours. She received benefits applicable to a full-time employee. While there is no question that it is the management's riqnlr to assiqn an employee to work , t.n2 .,:ii> evi.deii-; beLore the Board ,is that the grievor c3nri upon the temporary RFT position pursuant to a posting. Whether or not that was so, the fact remains that at the time of the posting the grievor was occupying a Regular Full- Time position. i It is our considered opinion that the employer cannot claim that ar! employee occupying a fuli-time position, performing full-time hours and being~treated by the employer as a full-time employee, nevertheless remains ~a part-time employee because the full-time assignment is a temporary one. The collective agreement I recognises only two categories of classified employees, Regular Full-Time and Regular Part-Time Civil Servants. At any given time every classified employee must fit into one or the other of these categories. Article 61.1 explicitly defines the allowable hours of work of a RPT. The grievor was performing full-time hours, which are in excess of the hours provided for RPT's. Part C provides various benefits for RPT's. The grievor was receiving benefits applicable to a Full-Time employee which are more favorable. In our view, in these circumstances the grievor could not be described as a Regular Part-Time employee. On the contrary, for the duraticn of her assign'ment the gr-fvcr yas a P. F3 g u 1 c? r Full -‘Ii nii employee. The iact that her fl:.!.i-tlmc assignment was temporary and that she reverted back to being a Part-Time employee at the end of the trmpoz-ary assignment, does not affect her full-time status while performing the full-time job. As n-ted earlier. she must be either full-time or part-time. she cannot have a status in between. She cannot be a part-time employee when she was performing full-time hours over a period of 21 months and was enjoying ali the benefits available tc a full-time employee. For all of those reasons, the Board concludes that when the grievor was appointed to perform the full-time job previously performed by Debbie Courneya, she attained the status of a full-time civil servant. This status was only temporary in that upon tne end of her assignment she reverted to her former status as a RPT. Since the job competition took place while the grievor was still in her full-time, position, the Board finds that at the particular time of t'nf posting in question the grievor was a full-time employee and as such had access to grieve under articie 4. t.ccordingiy Gis Board has jurisdiction to entertain the grievance on its merits. or days of hearing for that purpose, in consultation with the parties. Iiotice of hearing Shd?l also b-5 provided to the incumbent crr,r;isyef. Mr- . pa-;: I;. ..awi:inz G. Nabi I Member -7F I 4 E Ursini Member I