HomeMy WebLinkAboutUnion 13-12-10
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CORPORATION OF THE COUNTY OF GREY (GREY COUNTY SOCIAL
SERVICES)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
POLICY GRIEVANCE – JOB POSTING
BEFORE: S.L. STEWART – ARBITRATOR
FOR THE UNION: M. BEVAN
FOR THE EMPLOYER: D. WAKELY
THE HEARING IN THIS MATTER WAS HELD IN OWEN SOUND,
ONTARIO, ON NOVEMBER 19, 2013
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AWARD
1. The grievance before me is dated March 13. 2013. The grievance
concerns a dispute between the parties regarding the interpretation of
Article 10.01(c) of the Collective Agreement, a provision relating to
temporary vacancies. The dispute arises from a posting for the position of
Training and Policy Worker. The parties were in agreement that the
outcome of the grievance would not affect the successful incumbent.
However, the parties remain in dispute about the interpretation of Article
10.01(c) and, accordingly, seek a resolution of this dispute to assist in
addressing how future temporary vacancies will be approached. It is the
Union’s position that the senior qualified applicant is entitled to the
vacancy while it is the Employer’s position that it is entitled to award the
position to the best qualified applicant, with seniority coming into play
only in the event of the applicants possessing relatively equal
qualifications.
2. The job competition provision of the Collective Agreement was altered
in the round of collective bargaining for the January 1, 2011 to
December 31, 2012 Collective Agreement. Article 10.01(c) had provided
that temporary vacancies “will be posted for competition among
interested members of the bargaining unit”. It was amended by the
inclusion of the phrase “and awarded by seniority from a list of qualified
bargaining unit members who have expressed an interest” as indicated
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below. It was common ground that the Employer had proposed an
amendment to the language, however given that the language that
ultimately found its way into the Collective Agreement does not reflect
the Employer’s original proposal, I agree with Mr. Wakely that no
inference can be drawn from the fact that it was the Employer that
proposed an amendment.
3. The amended language is reflected in the bolded portion of the
provisions reproduced below:
Article 10 – Job Competitions
10:01
(a) Posting of Permanent Vacancies: Vacancies for
permanent bargaining unit positions shall be posted
on bulletin boards in all work areas frequented by
bargaining unit employees for a period of not less
than five (5) working days.
(b) Temporary vacancies are defined as new positions with
a definite term of twelve (12) months or less or permanent
positions temporarily vacated by an incumbent for a period
of twelve (12) months or less. These twelve (12) month periods
can be extended by mutual agreement of the Parties, such
mutual agreement not [sic] be unreasonably withheld by
either Party.
(c) Posting of Temporary Vacancies: The parties are agreed
that all temporary vacancies in excess of one (1) month,
for which advanced planning can take place, will be posted
for competition and awarded by seniority from a list of
qualified bargaining unit members who have expressed
an interest.
(d) Trial Period: Within 30 days of starting a new position
within the Corporation of Grey, an employee can voluntarily
return to the position formerly occupied, without loss of
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seniority.
Within 30 days of starting in a new position within the
Corporation of the County of Grey, if in the employer’s
opinion, the employee is unable to perform the core
duties of the position, the employee shall be returned
to the position formerly occupied, without loss of
seniority. The vacancy resulting from the posting
may be filled on a temporary basis until this thirty
(30) day trial period is completed.
10.02
A posting of vacancy shall occur as soon as is
practicable following notice of termination by
an incumbent or the last day of employement
of an incumbent should no notice be given.
10.03
Postings shall include the following information:
name and description of position; qualifications
required; hours of work; salary range; deadline
for receipt of applications. A copy of all postings
shall be sent to the unit steward.
10.04
Bargaining Unit First Consideration: The Employer
shall receive and consider applications by members
of the bargaining unit prior to requesting and
considering applications from anyone outside the
bargaining unit.
10.05
Selection Factors: In assessing the applicants for any
vacancy the employer shall consider the following factors:
(a) the skills, qualifications and abilities of the applicant(s);
then
(b) the seniority of the applicants.
10.06
Information to Applicant: Upon request a member of
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the selection panel shall meet with any unsuccessful
candidate to explain the reasons why he/she was
unsuccessful.
10.07
Successive Vacancies: Vacancies resulting from a successful
application by an employee in the bargaining unit for
another position shall be filled in the same manner as set
out above.
10.08
Filling of Vacancies: All vacancies shall be filled as soon
as practicable following the posting date.
4. The essence of the Union’s position is that the plain language of Article
10.01(c) supports its position and must be given effect. In Mr. Bevan’s
submission, the phrase “awarded by seniority from a list of qualified
bargaining unit members” clearly reflects a threshold, as opposed to a
competitive clause. He referred me to Re Rexcan Circuits Inc. and C.A.W.
61 C.L.A.S. 135 (Knopf), wherein the clause in dispute provided that: “…
postings for technical job vacancies will be awarded to the most senior
applicant who possesses the skills, qualifications and experience for the
job vacancy and who can perform the job within the normal
familiarization period of the job”. In that case the arbitrator rejected the
Union’s argument that the best qualified applicant was entitled to the
position, concluding at p. 3 of the award that:
In this contract the language is quite clear. The
Article directs the Employer to award the technical
job to the senior applicant who possesses the skills,
qualifications and experience for the position. This
means that the Employer must assess the senior
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candidates against the relevant job duties and select
the most senior person who has the skills, qualifications
and experience for the job. That person may not be
the best person for the job. S/he may not be the best
candidate for any number of reasons. Nevertheless,
the Collective Agreement obligates the Employer to
select the most senior candidate who meets the
threshold level of skills, qualifications and experience
and who can perform the job within the normal
familiarization period.
5. Mr. Bevan urges the same result in this case. He argues that the plain
language of 10:01(c) constitutes a clear expression of the intent of the
parties to have temporary vacancies treated on an exceptional basis from
the general approach expressed in 10:05, with the position awarded to
the senior qualified applicant. In his submission, the change in the
language can have no other reasonable interpretation. With respect to
the reference to the word “competition” in that clause, he submits that
the phrase is simply indicative of the fact that applicants will be
competing for the position in the broad sense of the word, in terms of
recognition as being qualified for the position, at which point seniority
will govern.
6. In his submissions, Mr. Wakely emphasized that the provisions of the
Collective Agreement must be read as a whole. He referred me to the
decision of the Supreme Court of Canada Bow Valley Husky (Bermuda)
Ltd. v. St. John Shipbuilding Ltd. [1997] S.C.J. No. 111 where it is noted
at paragraph 28 that: “… it is necessary to ascertain the intention of the
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parties with respect to the particular issue from the contract documents
as a whole”. He referred me to Article 5 of the Management Rights
clause, containing both specific and broad language retaining the right to
manage the operation, including their retention, “… except as expressly
limited by the clear and explicit language of some other provision of this
agreement …”. Mr. Wakely emphasized that Article 10:01(c) does not
contain a specific exemption from the operation of the Article 10:05,
which, under the heading “Selection Factors”, refers to “any vacancy”
and, in his submission, clearly contemplates the Employer’s ability to
assess the skills and abilities of the applicants in order to determine the
best candidate for all positions, with seniority governing only in
instances of relative equality. Mr. Wakely submitted that the phrase
“posted for competition” reflects the parties’ intention that the Employer
retain the right to consider applicants on a competitive basis, with
seniority coming into play only in instances of relative equality. Mr.
Wakely made reference to Re Children’s’ Aid Society of Ottawa-Carleton
and OPSEU (Laugher) [1996] O.L.A.A. No. 717 (Mitchnick) in support of
his position that a posting, as contemplated by the language of Article
10.01(c), contemplates a competition. He also referred me to a Letter or
Understanding between the parties, wherein the parties have agreed that
developmental assignments will be considered for those who have
competed for a temporary position but would not meet the qualifications
for a permanent position. This Letter of Understanding goes on to
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contain a reference to job performance being an additional factor to the
selection factors specified in Article 10.05 for selection of employees who
wish to compete for developmental assignments. Mr. Wakely suggested
that meaning could be given to all of the relevant language of the
Collective Agreement by interpreting Article 10.01(c) to provide for the
awarding of the position to the best candidate who is also the most
senior.
7. Mr. Wakely is clearly correct in his submission that the provisions of
the Collective Agreement must be read together as a whole. However,
notwithstanding the management rights clause, the fact that Article
10:05 does not exempt temporary vacancies and the reference to
developmental opportunities in the Letter of Understanding, I am
compelled to the conclusion that the interpretation of the language of
Article 10.01(c) that Mr. Bevan urges upon me is correct. The parties
specifically altered the language of Article 10 to provide for the awarding
of temporary vacancies to qualified applicants on the basis of seniority.
The clear implication of this specific change is that the parties agreed
that temporary vacancies would be carved out of the general provisions
relating to vacancies. That specific amendment, applying only to
temporary vacancies, implicitly excludes the application of the “any
vacancy” language of Article 10.05. The existence of special rules relating
to developmental assignments cannot undermine this specific
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amendment. The existence of a posting for a temporary vacancy does not
compel the conclusion that the Employer is entitled to select the best
qualified applicant, rather than the senior qualified applicant. It can
simply be viewed as a matter of notice. The fact that some qualifications
may be difficult to assess on the basis of a written application cannot be
viewed as a basis for not giving the amended language its obvious
meaning. The existence of a threshold clause does not preclude the
possibility of the Employer assessing the candidates to determine
whether they have the qualifications for the position. Indeed, this is a
necessary step. The phrase “for competition”, while consistent with a
competitive selection process, must be interpreted in light of the newly
added phrase “and awarded by seniority from a list of qualified
bargaining unit members who have expressed an interest”. The
suggestion of Mr. Bevan, that the phrase “for competition” in context is
properly viewed as in contemplation of an assessment of the applicants
to determine who is qualified and as a competition between individuals
in that respect, provides a manner of interpreting the newly added
phrase in accordance with the natural meaning flowing from the
language chosen, in accordance with the directive of the Court in Bow
Valley Husky (Bermuda Ltd., supra, at paragraph 118 that: “… one
should examine the contract as a whole with a view to searching for the
intention of the parties by recognizing the natural meaning that flows
from the language chosen”. Here, where the parties chose to amend
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existing language relating to temporary vacancies by inserting language
that is clearly threshold language, it is my view that the position of the
Union must prevail and that Article 10.01 (c) must be interpreted as
requiring temporary vacancies to be awarded to the most senior qualified
applicant. I so declare. I remain seized in connection with any issues
arising between the parties in connection with the implementation of this
award.
Dated at Toronto, this 10th day of December, 2013
_______________________
S.L. Stewart – Arbitrator