HomeMy WebLinkAbout1988-0362.Fernandez.89-01-09 ON rA RIO EMPL 0 Y£$ DE LA COURONN£
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE coMMISSION DE
SETTLEMENT Ri GLEMENT
BOARD DES GRIEFS
fSO DUNDAS STREET WEST, TORONTO, ONTARIO. MSO 1Z~ - SUITE 2~00 TELEPHONE/T£L~'I~..IONE
TSO, RUE DUNDAS OUES~ TORONTO, (ONTARIO) MSG 1Z8-BURE. AU 2~O0 (418~ 5g~8-0~88
0362/88
IN THE HATTER OF AN ARBI?RATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
\
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (J. Fernandez)
Grievor
- and -
The Crown in Right o~ Ontario
(M(nistry of Community and Socia) Services) :
Emp]oyer
Before: R, J. DelisIe Vice-Chairperson
P. K]ym Member
A. Merritt Member
For the Grievor: J. Pau]
Grievance Officer
Ontario Public Service Employees Union
For the Employer: S. Patterson
Counsel
Legal Services Branch
Ministry of Community and Social Services
HEARING: December 2, 1988
DECISION
By a grievance dated April 15, 1988, the grievor complains that the
employer is in violation of Article 4 of the Collective Agreement in denying
him the pdsitton of Librarian/Junior Programmer. Tt~e employer raised a
preliminary objection that the grievance was not timely in accordance with
.Article 27.2:
27.2.1 An employee Who believes he has a complaint or a difference
shall first discuss the complaint or difference with his
supervisor wfhin twenty (20) days of first becomin8 aware of
the complaint or difference'.
27.2.2 If any complaint or difference is not satisfactorily settled
by the supervisor within seven (?) days of the discussion,
it may be processed within an additional (10) days in the
following manner.
Ue have determined that the objection is well taken' and the grievance is
· accordingly dismissed.
The position sought by the grievor was posted for competition with
applications to be in by December 18, 1987. The position was evidently fille~
in early gebruary, 1988. The grievor was not formally notified of his failure
to obtain the position but heard via the grape vine that another had been
placed in the 3ob. On February 11, 1988 he discussed the issue with the
Director, 'Sam Marafiott. He expressed his shock and disappointment and
complained that he had not received written notif~cation. According to the
grievor, "Marafioti made it clear to me that the other person was successful
and I wouldn't be." The grievor acknowied~es that his grievance is out of t~me
according to the Collective Agreement but sought to make out a case of
estoppel.
The evidence concerning the grievor's meeting with Marafioti and other
meetings with his Supervisor, Stephen Cooke, is somewhat in conflict,
According to Cooke all he ever said to the grievor was that he should apply in
future to other postings as they came up. According to Maraftoti he tried to
be supportive of the grievor and encouraged him to apply for future positions.
He also told him there'd be other opportunities coming up but he never
promised him e job. The grievor recalls thc Marafioti told him on February 11
that there'd %e another position opening up in Operations and that he, the
grievor, should maintain contact with his supervisor Cookeaoncerning this
position. The grievor contacted Cooke, Cooke didn't know any new position but
said he'd look into it. The ~rievor contacted Cooke three or four more times
about what wa~ happening regarding the new position but nothing developed. The
grievor contacted the union who advised him to file a grievance and he did so.
The grievor testified:
"I was not really interested in the Operations job. I was still
interested in the librarian 3ob."
Even if we accept the grievor's description of events, we cannot say
that i~ was reasonable for the grfevor to infer that his complaint was being
dealt with and that he would be successful in securing the Librarian/Junior
Programmer job without the need to file a grievance. We cannot say that the.
employer's actions raise an estoppel against their invocation of the
timeliness argument, By the employer's responses at the Stage One and Stage
Two levels (Exhibits 2 and 3) it is clear also that the emploMer has never
waived their right to rely on the time provisions. In the event therefore the
grievance is dismissed.
Dated at Kingston, Ontario this qth day of January, 1989.
~;~.J.~..~elisle, Vice-Chairp. rso~-
A. Merri~, Member