HomeMy WebLinkAbout1990-1142.McNally & Langlois.92-01-09Under
TEE CRqWN EMPLOYEES COL+ECTIvB BARGAiNING~ACT :*r .:.. .
Before
THE GRIEVANCE SETTLENENT BOARD
1,' -BETWEEN. .3. ,~i. ;: i,~ " ;;.~ . .;.
0PSE.y (McNally&mg+is) '. ,!,.~~: '.C.' ..~. ' Grievdr
._... ,- and -' .', ,: ..-j :, . . . :-.
The Crown in Right of Ontario. .~,
(Ministry of Transportation)
Employer
~BEFORE: '1' B. Fisher, ' .' ‘.'~.Vice-Cha'irperson
,- ] , G. Majesky~ .,~ , Member - .-, ,.
~D.'Walkinshdw * Membe'r " a_
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1. .~; '. *,.' ~, ., :. *.. :.,,, TV -
FOR THE
GRIEVOR
?I. Simand
Counsel
Cornish Roland
<, Barristers &, Solicitors ,, . _.: .:.i .,,
_,' FOR TEE J. Gallagher
EMPMYER Staff Relations-Advisor
Human Resources Branch . . 'z:'e'.M&.istr$. of Tr&.po&ati'&'. " .' '
I, ;: . 'I- ;., ; : : " . ., .
FOR THE P. Cewe
THIRD PARTY t _~ . '~ .:. ._ 'i ,'
HEARING,.'. . N&&,&,&.'~j; iggo I.:' ,: ,. . . 6
August 13, 1991
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This is a competition grievance. The incumbent Path Cewe actively participated In the hearing,
whereas the Employer chose not to intervene. .
This case was presented largely on the following agreed ,statement of facts.
1. This is a grievance pertaining to job competition CR 89-183 (MW), original closing dale
November 14,1989, revised to close on November 20,1989 and further revised to close on January
10,199o.
2.
staff.
The original competition closing date November 14, 1989, was restricted to classified
3. No applicants had applied for the restricted November 14,1989 competition by Octobe!r
23, 1989. On October 23, 1989 the restricted competltlon CR 89-183 (MW) with a closing date of
November 14,1989 was cancelled and superseded by extending ,the competition CR 89-183 closing
date to November 20, 1989.
4. The origlnal competition with a closing date of November 14,1989, through a bona fide
clerical error, had listed the competition as restricted. When ,fhe competition closing date was
extended to November 20,1989, the bona fide clerical error was corrected to list the competition as
open.
5. The grievor& Theresa McNally and Alva Langlois, applied by applications received
November 16, 1989 and November 27, 1989 respectively.
6. The grievors were told December 5, 1989 that the competition closing Movember 20,
1989 was cancelled. No Interviews were held but qualified applicants (the grievers) had applied.
7. The competition closing date was extended again to January 10, 1990 and the new
posting was advertised in The Topical on December 15, 1989 and in the local newspaper.
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9. I The grievors and the Incumbent lntervi$$ed for the, Janua,ry 10, 1,990 closing date
competition. .!a> ;;~ .’ L ?r.,j’F ;,,
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: ~_ .~ The grievors were.fofor,med in writing on P$rua,ry 26, 199Djhat they: were not the ,-/ ;-Ai ,;! .” ~j I’ .I i .-
successful candidates. / :I ‘.:’ j*.. ,r:v; .1 . ,‘,~ .‘~. ,:
‘. ., ;. ; ,’ ~ ’ . :
ii. In the specific circumstances of this case,. the extension, of’ the,clostng ‘date of the
competition from’ November f4: i&l to November 20,1989 was prpper. ,I ,. ,‘I
12. Mr.Paul Wake advised the grievors In December.1989 that the November 29, 1989
competition, was cancelled because there were onfy, 2~ qualified applicants and Government policy
. required at least 3. He informed the grievers that they should. apply for the next rerun.‘~ ._ :. I. ,,_“. : I :.:
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There are two issues to decide”in”this case: <
; -1 ..:>
1:
,,
i- . _ <... %.. . ‘Tim&&s ,,of* the grievance.
2: Was the imployer entftl~d to cancel the November 20, 1989, competition and rerun it
in January 1990 even though, there:were 2 qualffied caodfdates who applied in the
November 20,1989 competition.
1. Timeliness
i .
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. . . +he incumbent’s pusitldu Is that& Grlevors knew as of I Decemper 5, ;969~that~@November
20; 1989~competitlon was being cancetled, &rd that ft woutdbe rerun in Januaryl990. Therefore the 8
20 days’starls to run from December 5,: 1989and’sfnce the grievance .was. not filed until .March 9, J’., .
1990 it is untimely;
,’
The Union’s position is that the grievers were specially told by a management representative,
Mr. Paul Wake, In December 1989 that the November competition was being rerun and that they
should apply at the next rerun. Under these conditions the Union should not have to respond to an
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objection regarding timeliness when the cause of the delay was partly caused by the employer.
Furthermore the Union argues that no damages flow from the breach until such time as the grievorrs
found out that someone else had won the competition, which wa:s not until February 26, 1990.
It seems appropriate and sensible that a grievor wait until the actual outcome of a competition
grievance before the time limits begin to run to file a grievance because it is only then that the Grievor
truly knows whether or not he has suffered any damages. In this particular case, the Grievors bolh
applied for the January 10, 1990 competition and were in f&t interviewed for the position. Had one
of them won the competition, it Is highly unlikely that either of them would have grieved the outcome.
The purpose behind the grievance arbitration is to resolve real disputes, not theoretical issues between
the parties. To force employees to file grievances as soon as they realize that the competition process
may be flawed without awaiting the outcome is to invite the filing of numerous premature and possibly
unnecessary grievances.
For instance, a person may feel that he has wrongfully be!en deprived of a job interview, but
is it not reasonable for him to await the outcome of the overall competition to see if he should file a
grievance? After all, if the ultimate winner of the competition is a person with more seniority than the
potential grievor, surely the potential grievor, In consultation with his Union representative, would
appreciate the uphill battle the potential grievor would have in shlowing not only that he should have
been interviewed, but that on a rerun, he has to show the Employer, and possibly the Board, that he
was significantly more qualified than the incumbent.
To start the clock on time limits in a competition case prior to the grievor receiving notification
of the final results is in our opinion unwise and not in keeping with the provisions of Article 27.2.1 as
the grievor could not properly know whether or not they have a Wmplaint or a difference’ before they
know if they have suffered any damages, which they would not know until the name of the successful
candidate is known to them.
The preliminary objections Is therefore dismissed.
2 %
4 1 2. Was the Emoloyer entitled to cancel and then rerun the,comoetition when there were aualified
candidates’who auulied to the‘cancelled‘comnetition. ’ -’ ” ”
.’ I:, _ .,; i , --:. ~’ {: $,’ ‘.
The,facti in this ha&are virtuallyidentical’to those in a dec’ision of Vice Chair Verityin m
273/80. In that’case the Ministf$ first advertised a position% which the“grievor and several other
qualified candidates’auplied. The grievor was interviewed, and although’shemet the qualifications of
the job as- stated in’the job’ posting, the hlinfstry wanted .a better candidate so’ they reran the
competition with a wider search area. The grievor was again reconsidered, although not reinterviewed,
however the fncumbeut, who could’not apply to the first uosting, was ‘found’to be more qualified. Mr.
Verity had this t&say at pages 7 and 8
“This Board is concerned about the effect of the second f.&ng, bearing in
mind the Marks Award dated April 23rd, 1981 (666-80) of Chairman J. F. W. I
Weatherill. Undoubtedly the fact situation at hand differs from the ‘Marks case, and
yet this Board is of the opinion that the principle involved is identical, namely that ’ .
the subsequent job competition must be deemed a nnullity’ in the circumstances.
In this instant case, the job was properly posted on a “restricted”basis.
The ~determination ‘of a restricted”or an open competition remains the sole
prerogative of management. Management had the right, if it had so desired,‘of
selecting ‘an open posting in’ the first tnstanize. For some unknown reason,
management decided to proceed on the basis of a restricted posting. The closing
date was established, namely December 17th, 1979. Five candidates were
interviewed, ‘and we. accept ‘the evidence of Mrs. D’Brass a selection committee .I
member, that all five original applicants met the basic qualifications for the position
when the fntervlews’had beencompleted. The Grievor applied within the time limit
of the first posting, was granted an Interview, and was undoubtedly qualified~for the
job. ~.,, .‘.
‘,~ We adopt the position that the’ employer’s actions in extending the
established closing date in then first’ postfng beyond the advertised closing date of
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December 17th, and the establishment of a seconds posting by management was
both improper and unreasonable. Although there was no evidence of bad faith on
the part of management, the competition was not carried out fairly. Article 4.1 of
the Collective Agreement reads 4he established closing date”, and there is nothing
in that Agreement allowing for an extension of the time limit of the closing date.
Unfortunately, Mrs. Derbyshire could not properly have been considered as an
applicant for the first job posting. In the circumstances, the job in question should
have been awarded to the Grievor, and the subsequent posting shall be considered
a nullity. Accordingly, the Grievor shall be appointed to the position Trial Co-
ordinator, S.C.O. and Matrimonial Causes Clerk, 6, General forthwith, with
compensation for any loss of earnings from and after January 8th 1980, the date
of the second posting.
In Marks (Chairperson Weatherill) 666/80, the Board acknowledges that an employer may
be, in some circumstances, permitted to terminate job posting procedures. At page 11, the Awards
says:
_ “Reference may also be made to the Robb Enaineertng case 20 L.A.C. (2nd)
340 (Mactfougall), where the question was said to be whether or not the employer
had sufficient cause, acting in good faith, to terminate job posting procedures. It
was said that “sound and practical’ reasons must exist. The Board might well be
inclined to support the employer’s actions in a case that m,et those criteria. In the
instant case, as we have indicated, there was no sufficient reason to terminate the
first competition. Gualified candidates had applied within the time limits, the
vacancy continued to exist, and the qualifications (on the basis of the ultimate
appointment) were (in so far as they are material), unchanged. It should be added,
howevar, that there is nothing in the evidence to show that (he employer acted with
deliberate bias or sought to discriminate improperly again!;t the Grievor.
In this case, the only reason the Empfoyer reran the frosting was because of some vague
Government policy whtch required at least 3 candidates for a ,competition. However, no evidence
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was led as to whether in fact some Government policy actually existed, it rationale, or its
application. In these ,k%cumstances we cannot find that this policy constituted a ‘sound and
practical” reason to rerun the competition.
The grievance is therefore,,allowed. The lollowing order is therefore issued.
1. The competition is to be rerun, however only.the grievors are permitted to apply.
2.. The grievors will not be required to file new applications.
3. There is no restriction on the persons to be ,involved, in the selections process.
4. The successful candidate is to be awarded compensation, with interest on the usual basis,
from January 20, 1990, which is 60 days from the date the competition was closed.
5. The Board remains seized of any issues arising from the interpretation and/or
implementation of this Award.
DATED: at Toronto, Ontario this 9th day o’f J,Inuary, 1992.
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,,B&WB. FISHER
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