HomeMy WebLinkAbout2014-0699.Zimmerman.15-02-26 DecisionCrown Employees
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GSB#2014-0699
UNION#2014-0727-0007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Zimmerman)
Grievor
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The Crown in Right of Ontario
(Ministry of Natural Resources and Forestry) Employer
BEFORE Michael V. Watters Vice-Chair
FOR THE GRIEVOR Billeh Hamud
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Thomas Ayers
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING February 9, 2015
DECISION
[1] This proceeding was conducted pursuant to the expedited procedure set out in
article 22.16 of the collective agreement. In the absence of agreement under article
22.16.7, this Decision shall have no precedential value. I note, for the record, the
parties agreement to extend the time for the issuance of the Decision.
[2] At the outset, the Employer raised a preliminary objection as to the arbitrability of
the grievance. Counsel for the Employer submitted that the Grievance Settlement
Board lacks the requisite jurisdiction to hear the grievance on the merits, and that the
particulars supplied by the Union fail to establish a prima facie violation of the
collective agreement. He advised that, for purposes of the preliminary objection, the
Employer was prepared to accept the accuracy of the particulars.
[3] The Union’s particulars read, in part:
“The Grievor, Tracy Zimmerman, has a seniority date of May 1990. She is an Assistant Fire Operations Clerk with the Ministry of Natural Resources. She has over 24 years of experience in the Ontario Public Service.
On November 14, 2013, the Employer posted the Personnel Officer position with the Ministry of Natural Resources located in Dryden, Ontario.
On or before November 28, 2013, the Grievor applied for the Personnel Officer position.
On January 16, 2014, the Grievor was interviewed by Darren McLarty and Gerry Leroux.
On February 4, 2014, Mr. Darren McLarty informed the Ministry of Natural Resources Regional Offices that Jessyca Gauthier has been offered and accepted the Personnel Officer position with the Regional Emergency Operations Centre. Ms. Gauthier has less seniority than the Grievor.
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On February 20, 2014, the Grievor filed a grievance alleging a breach of Article 6 of the Collective Agreement ………………………………………
………………………………………………………………………………………….
The Union submits that the Employer’s assessment of the Grievor’s performance during the interview and the Employer’s assessment of the Grievor’s ability and qualifications were flawed.
…………………………………………………………………………………………”
The Union’s particulars list eight (8) alleged flaws with the selection process
used by the Employer in this instance.
[4] The incumbent, Ms. Gauthier, did not attend the hearing. In response to a
question from this Vice-Chair, counsel for the Employer advised that the Employer was
representing her interests.
[5] At the time material to this proceeding, the grievor was working on a temporary
assignment as a Communications Operator IR. The contract stated the assignment
was operative between October 14, 2013 and March 31, 2014, subject to earlier
termination. It described the grievor’s ‘Employee Class’ as “Fixed Term” and her
‘Employee Category’ as “Irregular/On Call’”. The grievor certified therein that she was
not a Regular employee. I was informed that the grievor had previously worked under a
series of seasonal contracts. The Personnel Officer position applied for is described on
the posting as a “seasonal recurring contract”.
[6] The Employer filed a Book of Documents and a Book of Authorities in support of
its preliminary objection. Counsel for the Employer presented a lengthy argument.
Counsel for the Union responded to same and argued that the instant grievance is
arbitrable and should be heard on the merits. Neither party called any witnesses. All
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of the materials filed and the submissions presented have been fully considered prior to
the fashioning of this succinct Decision.
[7] Articles 1.1, 1.2, 1.3, 1.4 and 1.6 of the Definition section of the collective
agreement provide definitions of “regular employee”, “Regular Service”, “fixed term
employee”, “Fixed Term Service” and “seasonal employee”. It is clear from a reading of
these definitions that the Regular Service does not include fixed term or seasonal
employees. Such employees are not considered to be regular employees or to fall within
the Regular Service, as defined in articles 1.1 and 1.2. I accept that the Regular Service
and the Fixed Term Service are separate and distinct groupings of employees.
[8] Article 6.1.1 commences with the sentence: “When a vacancy occurs in the
Regular Service for a bargaining unit position or a new regular position is created in
the bargaining unit, it shall be advertised for at least ten (10) working days prior to the
established closing date”. Given the definitions of “regular employee” and “Regular
Service” mentioned above, it is clear on its face that article 6.1.1 was intended to
capture positions in the Regular Service and to exclude both seasonal and fixed term
positions.
[9] It is also apparent from a review of article 6.1.2 that it was intended to apply to
the same type of vacancy or new position referenced in article 6.1.1, namely vacancies
and positions in the Regular Service. Article 6.1.2 simply provides that, in the
circumstances described therein, the Employer is not required to post or advertise the
vacancy or new position, as would otherwise be required under article 6.1.1. I reach a
similar conclusion with respect to article 6.2. On my interpretation, the notice of
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vacancy referenced therein refers back to the vacancy or new position contemplated by
article 6.1.1.
[10] I note that article 6.4 also limits the right to time off to attend a job interview,
without loss of pay or credits, to interviews within the Regular Service. This limitation
reinforces the view that article 6 is intended to apply to vacancies in the Regular
Service and not to positions in the Fixed Term Service, be they seasonal or fixed term.
[11] Article 6.3 speaks to what the Employer must consider when filling a vacancy.
The article obligates the Employer to give primary consideration to qualifications and
ability to perform the required duties. Where qualifications and ability are relatively
equal, seniority is to be the deciding factor. When considering the plain and ordinary
meaning of the above-mentioned sub-articles of article 6, and after reading article 6.3 in
that context, I conclude that the vacancy referenced in article 6.3 was intended by the
parties to capture the same type of vacancy or new position as described in article 6.1.1,
this being a vacancy in the Regular Service or a new regular position. I have not been
persuaded that article 6.3 was intended to apply to seasonal or fixed term positions. In
my judgment, it is preferable to interpret all of article 6 in a consistent fashion and to
not carve out, or give an inconsistent interpretation to, article 6.3. Simply stated, I
accept the Employer’s submission that the obligation imposed on the Employer by the
article applies when it is filling a vacancy or position in the Regular Service and that it
is not engaged when filling a seasonal position such as the one in this case. It is
immaterial that article 6.3 does not expressly reference the filling of a vacancy in the
Regular Service. When article 6 is construed in its entirety, it is clear that the word
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“vacancy” in article 6.3 is intended to capture vacancies in the Regular Service and not
any and all vacancies which may arise.
[12] Article 31A.16.1 lists a series of articles that also apply to fixed term employees,
other than seasonal, student and Go Temp employees. Article 32.21.1 similarly lists
articles that also apply to seasonal employees. Both articles list articles 6.1, 6.3 and
6.4. As previously mentioned, at the time of the posting and interview process the
grievor was working on a fixed term contract. The position applied for was seasonal in
nature.
[13] As noted earlier, article 6.1.1 references a vacancy in the Regular Service or a
new regular position. It does not expressly contemplate a posting requirement for
seasonal or fixed term positions. To read such a requirement into article 6.1.1, on the
basis of articles 31A.16.1 and 32.21.1, would be tantamount to an alteration, change,
amendment or enlargement of the collective agreement. The Grievance Settlement
Board has no jurisdiction to do any of these things given the clear prohibition found in
article 22.14.6. The Employer, in this instance, opted through the exercise of its
management rights and discretion to use a posting process. That decision does not
create new contractual obligations on the Employer. Similarly, it does not result in new
rights for the grievor where none existed before.
[14] As indicated above, the time off provision contained in article 6.4 is restricted to
attendance at interviews within the Regular Service. As with article 6.1.1, this Vice-
Chair would contravene article 22.14.6 were I to find that article 6.4 also applies to
interviews for fixed term or seasonal positions. I conclude that articles 31A.16.1 and
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32.21.1 have the effect of providing the time off when either a fixed term or seasonal
employee is interviewed for a position in the Regular Service.
[15] After considerable thought, I similarly find that the reference to article 6.3 in
articles 31A.16.1 and 32.21.1 provides fixed term and seasonal employees with the right
to grieve a job competition, on the basis of an alleged violation of article 6.3, when such
employee is applying for a vacancy or new position in the Regular Service. The articles
do not provide fixed term and seasonal employees with the right to grieve under article
6.3 with respect to a position in the Fixed Term Service.
[16] I note that article 6.3 was first added to the list of articles cited in articles
31A.16.1 and 32.21.1 in the 2009 to 2012 collective agreement. At the same time, the
words "Regular Service” replaced “Classified Service” in article 6.1.1. I think that if the
parties then intended to extend grievance rights for employees applying for seasonal or
fixed term positions, they would have resorted to clearer language to express such
intent. To reiterate, I have been persuaded that the changes made in that round of
negotiations served to extend the rights of seasonal and fixed term employees when
they applied for a vacancy or new position in the Regular Service.
[17] I am inclined to accept the Employer’s submission that the parties have agreed
to a separate regime for seasonal and fixed term employees in view of distinct
operational requirements. Counsel for the Employer advised that there is a need to
quickly fill a large number of seasonal positions, many with an uncertain duration, in
order to meet operational needs. He further maintained that a requirement to post and
compete these positions under article 6.3 could seriously impact the Employer’s
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business interests. Counsel observed that, if article 6 applies to seasonal positions, the
Employer would have to post the job for ten (10) working days and then administer a
competition. Such requirements could potentially attach to a vacancy as short as eight
(8) weeks. I find merit in counsel’s argument that a purposive analysis supports the
conclusion I have reached with respect to the applicability of article 6.3 to the
circumstances of this case.
[18] Article 8.6.1 provides that article 6 does not apply to a situation where an
employee is assigned temporarily to a position 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.
[19] In my judgment, the above exception is inapplicable here for the following
reasons. First, the circumstances existing in this case did not involve the Employer
making a temporary assignment. Rather, the grievor applied for a temporary seasonal
recurring contract pursuant to a posting. Second, the posting for the Personnel Officer
position did not clearly specify that the duration of the contract would be for a period of
greater than six (6) months. While the Job Term stated “1 Temporary 9 month
seasonal recurring contract”, under the heading of Additional Information the position
was described as “Seasonal, duration up to 9 months”. I note that all of the grievor’s
prior seasonal contracts filed in this proceeding stated that the term was “subject to
earlier termination”. Additionally, the posting did not reference a period of February to
November, as did another posting for a Warehouse Clerk position which was provided
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by the Union. Lastly, no firm evidence was led to establish that the specific dates of
the term were set at least two (2) months in advance of the commencement of the
temporary assignment. Indeed, the specific term of the contract was not expressly
identified in the posting.
[20] The Union’s position, in substance, is premised on a claim that the grievor’s
rights under article 6.3 and 8.6.1 were contravened by the Employer. I have
determined above that neither article is applicable in this instance. It follows that the
particulars provided by the Union are insufficient to establish a prima facie violation of
the collective agreement. Viewed from a slightly different perspective, it is established
that the Grievance Settlement Board lacks jurisdiction to review the Employer’s
exercise of management rights unless the exercise of same affects some right of an
employee under the collective agreement. That impact has not been made out in this
case. Additionally, there is no allegation that the Employer acted in bad faith.
Accordingly, this Board lacks the jurisdiction to hear the grievance on its merits.
[21] For all of the above reasons, the preliminary objection of the Employer is
sustained and the grievance is hereby dismissed.
Dated at Toronto, Ontario this 26th day of February 2015.
Michael V. Watters, Vice-Chair