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HomeMy WebLinkAbout1987-2553.Lindlau.88-09-13EMPLOY.3 DE LA COURONNE OEL’ONTARIO CQMMISSION DE SElTLEMENT REGLEMENT DES GRIEFS Between: -- Before: 2553187 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Josef Lindlau) and . The Crown in Right of Ontario (Ministry of Community and Social Services) B. Kirkwood Vice Chairman .I. McManus Member M. O'Toole Member Employer For the Grievor: R. Nelson Counsel Gowling & Henderson Barristers and Solicitors For the Employer: W. Emerson Employee Relations Officer H&an-Resources Planning & Program Design Branch Ministry of Community and Social Services Hearing:. June 1, 1988 DECISION Joseph Lmdlau filed a grievance that he was being unjustly disciplined for being denied the privilege of acting as a relief supervisor in the transportation department. A preliinary objection was made to the board by the employer’s counsel, that the board did not have jurisdiction to hear this grievance, as the facts which the Board was being asked to review were not matters of discipline, but related to the review of vacancies within management positions and to the allocation of persons to positions within management. The union agreed that if the issue was the posting and filling of vacancies or new positions to management, the board would not have jurisdiction under Article 4 of the Collective Agreement. However, in the union’s view, the issue was that of discipline over which the board has jurisdiction under Article 18(2)(c) of the Crown Employees Collective Bargaining Act, RSO 1980, c.108 as amended, which provides : In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) ;;;;A; position has been improp,rly (b) that he has been appraised contrary to the governing principles and standards, or (c) that he has been disciplined or dismissed or suspended from his employument without just cause, may process such matter in acordance with the grievance procedure provided in the collective agreement, and failing fInal determination under such pmcedute, the matter may be processed in accordance with the procedure for final determination applicable under section 19. The union submitted that discipline is not to be construed in the usual sense, as punishment for just cause, but in a broader sense, as the effect of the employer’s actions effectively freezes the grievor from access to a management position and thereby the grievor is penalized. Counsel for the union advised the board that there was no misconduct upon which to base any discipline. The union would produce evidence to show that the supervisor has had health problems and has always chosen one person to act as a relief person. Although the grievor had been with the Oxford Regional Centre at Woodstock for twenty years, the grievor had not been allowed to assume the position. . When a person is disciplined, the person loses rights or privileges that he would normally enjoy as a consequence of some misconduct. If there is no misconduct the penalty is removed and the employee is given back the rights and privileges that he would normally have and, is, what is colloquially called, “made whole.” He, however, cannot have any greater rights than he would have, if there had been no misconduct. As there is no misconduct by the grievor alleged in this grievance, the issue is whether the grievor has been penalized by the deprivation of a right which he has pursuant to the collective agreement or pursuant to the Crown Employees Collective Bargaining Act R.S.O. 1980 C. 108 as amended. Although the grievor has been “penalized” in the sense, that he was not offered the same opportunity as the other employee to assume the relief position, the question is does he have the right to demand that the same opportunity be given to him. In essence, the nature of the right which he is claiming, is the right to assume a vacancy or obtain a job in a management position, even if it is only on a relief basis. If the grievor had been denied the ability to apply for a position within the bargaining unit, the board clearly has the jurisdiction to consider the matter, as it falls under Article 4 of the collective agreement. Other Grievance Settlement Boards have considered whether there is jurisdiction to consider the filling of vacancies, the awarding of promotions, when the position to be filled or assumed is outside of the bargaining unit and they have held that there is no jurisdiction to do so.. In Cunnineham G.S.B.274/79, (E.B. Jolliffe), which has been followed in Jones G.S.B. 1525/87 (D. Fraser), wG.S.B. 419/82 (J.F.W.Weatherill), the Board held that as the Board is a creature of statute, its jurisdiction is circumscribed by the legislation to the interpretation, application, administration or alleged contravention of the collective agreement. Therefore, as the parties had established the rides which they wished to apply for the filling of vacancies in the collective agreement, but made no mention of promotions and filling of vacancies outside the bargaining unit in the collective agreement, the Board has jurisdiction only over vacancies within the bargaining unit. A similar approach was taken in Re Matsoui Police Board and Cornoration of the District of Matsaui and Matsaui Policemen’s Association. Local 7, 12 L.A.C. 93d) 280 (B.B. Trevino). This Board does not find that the inability to assume a management position is discipline and therefore this grievance is inarbitrable. The grievor may have been denied an opportunity which was given to another employee, but he was not denied a privilege or right which he had under the collective agreement. If it were discipline, it would create an unusual situation, whereby any bargaining unit employee would be able to subject the employer’s procedures to scrutiny where there was a vacancy for a management position, just by the employee seeking the position. This is Thii grievance is dismissed. Datedat Toronto this 13th day of Septmher, 1988. Belinda A.Kirlnvood, Vice-chairperson +iember