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HomeMy WebLinkAboutPettigrew 88-04-29 HEADNOTE GSB % CAAT (A) 0PSEU # 87P93 87534-37 0PSEU Loc. 420 Article(s): PETTIGREW~ D~ (OPSEU) vs'i LoYalist College Award dated April 29, 1987 (E. Palmer) Grievori a mathematics teaches was laid off by the College. Claims a.position was vacant and he was able to perform the duties, therefore he should be placed in that position. During the hea~ing~ a .question of admissability of evidence arose, namely whether or not the grievor could be questioned as to what transPired during an interview relating to the job in question. The Union objected to this evidence but was overruled by the Board. This award deals with the reasons for the Board's decision. The actual merits of the grievance have yet to be heard. AND TECHNOLOGY (Hereinafter called the "College") -and- THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (Hereinafter called the "Union") [D.Pettigrew Grievance] BOARD OF ARBITRATION: E.E.Palmer,Q.C. , Chairman R.Gallivan T.Kearney APPEARANCES: FOR THE COLLEGE: C.G.Riggs,Q.C. , and others FOR THE UNION: P.Lukasiewicz and others -INTERIM AWARD- The present arbitration arises out of a grievance filed by Mr. D. Pettigrew on 21 May 1987. The gist of Mr. Pet- tigrew's complaint is that he was laid-off from employment with the College when there was a position which was vacant and which he could perform, that of Business Mathematics. This matter was not resolved during the grievance procedure in effect under the collective agreement existing between the parties. Accordingly, the present arbitration was necessitated, a hearing in relation to which took place in Belleville, Ontario, on 3 December 1987. At that time the parties were given an opportunity to present evidence and argument. The parties also indicated that they had no dispute with either the composition or the jurisdiction of the present Board to hear this case. During the course of the above-mentioned hearing, a question arose regarding the admissibility of certain evidence. Specifically, the Union objected to questioning of the grievor regarding what transpired at an interview following issuance of his lay-off notice, ~he Board overruled this objection and the parties agreed that a written award stating the reasons for this decision should be ~issued before continuing with this case in order that the Union might consider the advisability of judicial review. These reasons follow. The facts necessary to understand this aspect of the case are easily stated. Thus, at times relevant to this matter, Mr. Pettigrew was employed by the College teaching mathematics at the Warkworth penal institution run by the Correctional Services of Canada. In this regard the College had a contract with the latter to provide these services. Unfortunately, this contract was terminated with notice to the College in the Spring of 1987. The contract was to' come to an end on 31 August 1987. Although the College was negotiating to have their relationship with Warkworth extended, out of caution it advised the grievor by letter dated 16 April 19~7 of the foregoing circumstances and that, consequently, he would be "placed on 'lay off' status effective August 31, 1987." Shortly thereafter, on 23 April 1987, a number of job vacancies were posted by the College amongst which was that of Business Mathematics. Mr. Pettigrew applied for this opening and such was acknowledged by the College, indicating that if he were on the "short list" of applicants he would be given an interview. Ten days later, on 21 May 1987, the present grievance was filed. The College sought to ask questions regarding the interview that took place with respect to the applica- tion made by Mr. Pettigrew. The Union objected that such questions were improper as anything which happened after the grievor was informed that he was laid-off was irrele- vant to this case; that the College could only determine suitability of the grievor for the job in question on the basis of the material in his personnel file; and that it is improper for the College to assess the grievor on the basis of what transpired at the interview. Hence, they wished their objection to be upheld. It was not. In our opinion there exist a number of flaws in the Union position. First, the grievor had not been laid-off at the time of the interview; he had only been informed that possibly he would be laid-off in the future. Therefore, at this time one cannot say that all the facts relevant to his lay-off existed. For example, had Mr. Pettigrew obtained additional qualifications before the end of August, it could hardly be argued that the College could successfully maintain that these could not be used by the grievor in an attempt to show he could carry out then existing work. Second, this Board can find no limitation placed upon the College that, in assessing the qualifications and so on of the grievor, they are limited to that which is contained in his personnel file. Again, we would think it obvious that, absent some specific provision in the collective agree- ment, the grievor or the College should not be precluded from using relevant information merely because it was not in a certain location. ~The Union also alleged that the College was wrong in having such interviews as this showed that they treated the qrievor as being in a competition for this opening. In their view the proper approach to this was to see if the grievor had the basic ability to do this job. The Union may well be correct that such selection should not be made on a comparative basis. We do not see, however, how this affects this matter. The real issue is whether what occurred has any relevance to the issue before this Board. Finally, we would note in passing that in direct examination of the grievor, the Union itself alluded to the interview and asked a few brief questions about it. By this award, then, we confirm our ruling on this point. DATED at Lynden, Ontario, this twenty-ninth (29th) day of April, 1988. Chairman I c o n c u r ~i7~__~ t ~.~allivan I concur/,~t T.Kearney