Loading...
HomeMy WebLinkAbout1990-3017.Union.91-12-05 Decision ONTARIO EMPLOYES DE LA COURONNE CROWNEMPLOYEES DECONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TELEPHONE: (416) 376-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 FACSIMILE/TELECOPIE: (416) 326-1396 3017/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Housing) Employer BEFORE: M. Watters Vice-Chairperson M. Vorster Member F. Collict Member FOR THE M. Wright GRIEVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE C. Humphrey EMPLOYER Counsel Stringer, Brisbin, Humphrey Barristers & Solicitors HEARING June 13, 1991 This proceeding arises from a Union Grievance dated January 16 , 1991 , the material part of which reads : "STATEMENT OF GRIEVANCE The Employer has contravened Article 4 of the Collective Agreement by not posting the position for Financial Officer 3 . SETTLEMENT DESIRED That the position of Financial Officer 3 Full-time be posted . " (emphasis ours ). A number of the relevant facts were agreed to by the parties at the hearing . These may be stated as follows : ( i ) The posting for the position here in issue is attached to this Award as Schedule W . As stated therein , the position was described as a "temporary assignment for any interested staff seeking an opportunity. to develop their accounting , analytical and auditing skills . " It further stated that the position with the Rent Review Hearings Board was being offered for approximately six ( 6 ) months as a "contract/temporary" assignment. The precise period for the initial assignment was later isolated as January 7 , 1991 to July 5 , 1991 . The Board is satisfied that the position summary found in the posting provides an accurate overview of the duties of a Financial Consultant . It is unnecessary for purposes of this Award to outline all of the specific duties in detail . ( ii ) Immediately prior to. the posting , the Ministry employed seven ( 7 ) Financial Consultants . These individuals were assigned -to one ( 1 ) of four (4 ) Regional Offices , or to the Head Office , 1 of the Rent Review Hearings Board . With one ( 1 ) exception , not material to this dispute , all were classified employees working full-time hours . In December , 1990 , the Financial Consultant at Head Office left to take another position . The resulting vacancy was filled by another Financial Consultant who transferred in from the Central Region . The vacancy which then arose in that Region was the subject of the instant posting . ( iii ) At the time of posting , there had been no reduction in the work load of the Financial Consultants . These employees were required , inter alia, to advise members of the Rent Review Hearings Board on complex financial matters arising from appeals of rent review decisions . In November , 1990 , amendments. were made to the Residential Rent Regulation Act by of Bill 4 . These amendments were designed to limit the number of appeals . The changes also served to complicate the job of the Financial Consultants in that, thereafter , they had to work with both the old and the new systems . We were informed that there were approximately nine-hundred ( 900 ) old cases which had yet to be .oncluded as of the date of posting in December , 1990 . From the Employer ' s perspective , Bill 4 would ultimately serve to simplify , and possibly reduce, the work of the Financial Consultants . This view was contested by the Union . The Union was content with the facts agreed to and did not lead any viva voce evidence. Mr . N . Shah , the Coordinator of Financial Advisory Services , was the sole witness called on 2 behalf of the =mployer . All of the Financial Consultants reported to Mr . Shah . It was this gentleman who was responsible for the filling of any vacant positions . Mr . Shah testified as to why the Employer elected to fill the position, through a temporary assignment. The reasons were essentially two-fold . Firstly , the Ontario Government had announced an intention to make "drastic changes" to the existing legislation . Bill 4 temporarily served to limit a landlord ' s grounds for justifying a rent increase . It was expected , however , that permanent legislation would be introduced in raid to late June , 1991 . At the time of_ the present posting , the regulations necessary- to give full effect to Bill 4 had not been promulgated . It was .Mr . Shah' s evidence that this situation created a dilemma for management. More particularly , the Employer could not predict what the future workload would be for the position . Indeed , there was a possibility that Financial Consultants might not be needed on a permanent basis in the future . Secondly , the posting was designed to offer a developmental opportunity within the organization. It was hoped that staff morale would be promoted through this initiative . We were advised that employees have had the perception that similar assignments have gone to external candidates in the past. Mr . Shah , as a consequence , wished to combat this perception of unfairness . He testified that he , therefore , decided to run a competition instead of simply assigning a particular person to 3 the job. This would permit a number of people in the field to apply for the position . The Board was told that, if the job had been offered on a full-time basis , it would have had to be posted province wide due to the Ministry ' s policy on employment equity . Ms . L. Slimon , an Appeals Analyst in the Central Region , was ultimately selected for the temporary assignment. Her permanent position remained available should she have to return to it . Ms . C . Larouche was an unsuccessful candidate . A grievance was subsequently filed by her which contested the result of the competition . She later obtained a position with the Ontario Energy Board . Both counsel agreed that consideration of her grievance should be deferred until the issuance of this Award . They also agreed that such grievance should be heard by this panel should the grievor wish to pursue the matter . ° The relevant provisions of the collective agreement read : 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 least ten ( 10 ) working days prior to the established closing date when advertised within a ministry , or it shall be advertised for at least fifteen ( 15 ) working days prior to the established closing date when advertised service-wide. All applications will be acknowledged . Where practicable , notice of vacancies shall be posted on bulletin boards . 4 . 3 In filling a vacancy , the Employer shall give primary consideration to qualifications and 4 ability to perform the required duties . Where qualifications and ability are relatively equal , length of continuous service shall be a consideration . ARTICLE 6 - TEMPORARY ASSIGNMENTS 6 . 6 . 1 Where an employee is assigned temporarily to a position , Article 4 (Posting and Filling of Vacancies or New Positions ) shall not apply except where : ( i ) the term of a temporary assignment is greater than six ( 6 ) months ' duration , and ( ii ) the specific dates of the term are established at least two ( 2 ) months in advance of the commencement of the temporary assignment . 6 . 6 . 2 Except as provided in 6 . 6 .1 , in no case shall any provision of the Collective Agreement with respect to the filling of , assignment or appointment to a vacancy apply to temporary assignments. It was the thrust of the Union 's argument that the position should have been posted as a full-time vacancy pursuant to article 4 . 1 of the collective agreement . Counsel emphasized that this bargaining unit position had previously been occupied by a classified employee on a full-time basis . It was further rioted that there was work available to be performed - by the position and that the vacancy had been occasioned by the movement of employees rather than as a consequence of some initiative by the Employer , Counsel submitted that this set of facts compelled the Employer to post under article 4 . It was argued that article 6 . 6 . 1 was not intended to apply to this type of vacancy . It was the 5 position of the Union that such use of article 6 coL;ld serve to both undermine the integrity of. the bargaining unit and destroy the effect of article 4 . Lastly , it was asserted that the use. of article 6 . 6 . 1 was unreasonable in this instance as the Employer had not properly considered the nature of the vacancy . The Board was therefore asked to order that the position be posted forthwith as a full-time vacancy . Additionally , the Union requested that Ms . Larouche be permitted to compete notwithstanding her move to the Ontario Energy Board . We were referred to the following authorities in support of the above- mentioned arguments : Campbell , 0016/88 (Samuels) ; Union Grievance, 0534/88 (Wright) ; Union Grievance, 1439/86 ( Knopf ) ; Union Grievance, 1480 , 1481 , 1482/89 (Kaplan) ; Re Toronto Electric Commissioners And Canadian- Union Of Public Employees, Local 1 , 6 L.A . C. ( 2d) 243 (Carter, July 1974) . In response, the Employer asserted that it was not required to post the position as full-time as the situation fell squarely within the ambit of article 6 . 6 . 1 . More specifically , counsel submitted that recourse did not have to be made to article 4 as the Employer had properly elected to fill the vacancy by way of a temporary assignment. He stressed that the decision was premised on valid considerations . Counsel further submitted that the temporary assignment remained , in substance, an "assignment" notwithstanding that it was filled through the process of a competition . Lastly , it was argued that decisions with respect 6 to the nature or duration of assignments fell within the scope of management ' s rights as identified in section 18 ( l ) of the Crown Employees Collective Bargaining Act arid , for that reason , could riot be challenged in the absence of bad faith . We were consequently urged to conclude that the remedy sought by the Union was beyond the Board ' s jurisdiction . The Employer relied on D ' Silva, 0538/83 ( Dissanayake) for the proposition that temporary assignments are riot subject to a test of reasonableness . The Board has considered all of the evidence and argument placed before us in this case. We have ultimately been persuaded that the Financial Consultant vacancy was properly filled by the temporary assignment made pursu.ant to article 6 . 6 . 1 . A reading of that provision makes it clear that a 'vacancy does not have to be posted under article 4 if the Employer elects to make a temporary assignment. This is subject to the exception expressly provided for in article 6 . 6 . 1 . That exception is not relevant to the present situation . This interpretation is reinforced by article 6 . 6 . 2 which states that, subject to the excep�ion in 6 . 6 . 1 , no provision of the collective agreement with respect to the filling of , assignment or appointment to a vacancy shall apply to temporary assigniments . The Union, in substance , is asking that we place certain other restrictions on the Employer ' s right to, make a temporary assignment. Subject to our comments below, we think that any desired limitation should be negotiated 7 between the parties rather than added by a Board in the cortex--t of a rights dispute . This is consistent with the intent evide-iced in article 27 . 16 of the collective agreement. That article prohibits the Grievance Settlement Board from altering , changing , amending or enlarging any provision of th-e agreement. The Board is satisfied that the Employer ' s decision was founded on proper considerations . We accept, from the evidence of t'1r . Slfah , that the temporary appointment was utilized as a consequence of the Employer ' s uncertainty as to its future staffing needs . We are also prepared to accept his reasons for the use of a competition process notwithstanding that the Employer was not strictly obligated to do so . The fact that a competition was resorted to in this instance did not affect the nature of the assignment. " Our decision in this case might have been otherwise had we been persuaded by cogent evidence that the employer had deliberately engaged in a course of conduct designed to either circumvent the rights given in article 4 or to otherwise undermine the integrity of the bargaining unit . Convincing evidence of this nature was riot led in the present proceeding . _ In the final analysis , the Board accepts the Employer' s argument that this grievance is defeated by the clear language of .article 6 . 6 . 1 8 In our judgment , the cases relied on by the Union are not helpful to the resolution of this dispute . In Campbell , the Board was confronted with a different issue . There , the panel had to determine whether a temporary assignment must involve the transfer of an existing member of the bargaining unit to another position . That question was answered in the affirmative . The Board found that a temporary assignment did not exist as a bargaining unit employee was not moved temporarily from their regular job. In that case, the Employer had hired a person froirI outside the bargaining unit . In the situation here , we are satisfied that a temporary assignment existed for purposes for article 6 . 6 . 1 . The award in Union Grievance (Wright) did not involve an interpretation or` application of articles 6 . 6 . 1 . or 6 . 6 . 2 . There, the Board had to decide whether a vacancy existed so as to require a posting under article 4 . In that instance, Correctional Officers 2 had been acting as Correctional Officers 3 for a protracted period of time. The Board found that vacancies existed with respect to these positions and ordered a posting for that position which continued to exist. The Board did not have to consider the. additional issue as to whether a posting was unnecessary as a result of article 6 . 6 . 1 . The case is therefore clearly distinguishable from the one now before this panel . This same comment is applicable to the awards in Union Grievance ( Knopf) and Union Grievance ( Kaplan ) . In the former , a 9 -n s 7 rather than 1;?rr �crar ` therefor,:? orderer , in the lka' ter- , certain) pos t1 )rs were f to be "on-go t 19" and , f o r- that reason) , s u; sect to the 1)u t requirement . in neither instance d i d the Board have to inter rat or apply article 6 . 6 . 1 . Lastly , we think that the award in Toronto Electric Commissioners is also distinguishable . The arbitrator in that dispute had to find whe'-",,er the Empk'--tyer hRd determined that work of the job was available so as to oblige it to post. The case did not concern language similar to that contained within articles 6 . 6 . 1 and 6 . 6 . 2 . For all of the above reasons , the Board finds that the Financial Consultant vacancy was properly filled by a temporary assignment . The Union is accordingly not entitled to an order that the position be posted forthwith on a permanent basis . it is unnecessary to make an order with respect to Ms . Larouche ' s ' r " ghts . Such can be determined in the outstanding individual gr--levar)ce if it is pursued . 7rje grievance is dismissej . )ated a r,dso- , 5 rt. r 'u 1-h da it- 5th I)f December,," M . W a t il-,e r's Addendum/Dissent to follow F .