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HomeMy WebLinkAboutClark 95-11-06 IN 'IHE IV~AT'I'ER OF AN ARBITRATICN BE131/EEN: (Hereinafter referred to as the College) (Hereinafter referred to as the Union) ~ IN THEM&TTEROFTHECRIEVANCEOFL. ~ (OPSEU FILE 95A109) BOARI~OF ARBITRATION: Gall Brent Al Merritt, College Nominee Michael Sullivan, Union Nominee APPEARANCES: FOR THE CDLLECE: Wallace Kenny, Counsel Nicole Perreault, H~rnan Resources Officer Jim Gardner Foster Zanutto Dan Patterson F(~{THEUNION: Donald K. Eady, Counsel Allison Phillips, Counsel Larry Clark, Grievor Art Domenicucci, Steward Hearing held in St. Catharines, Ontario'on September 26, 1995. I~ECISI(~] The parties informed us that there was an interested third party, Sue Tallon, who had been given notice of this hearing and of her rights; she did not appear at the hearing. The parties further informed us that, although four grievances were filed by the grievor (Exs. 2 - 5), they would only be dealing with the College's preliminary obiection in relation to grievance 95A109 (Ex. 2), and that if the objection was dismissed we would then deal with the merits of all the grievances. 2 The College has objected that we do not have jurisdiction to hear the grievance dated October 1#, 199# (Ex. 2) because it is untimely. That objection was first made at the initial step of the grievance procedure. There is no suggestion that it was ever waived. There is no dispute between the parties that pursuant to Articles 18.6.1 and 18.2.1 there is amandatory fifteen day time limit within which grievances must be filed or they will "be considered abandoned". It is also not disputed that there is provision in the collective agreement (Ex. 1) for the extension of those time limits by mutual agre~nent of the parties (Article 1g.2.3). It is accepted that we lack jurisdiction to vary those time limits. In Oune, 199# the College posted a vacancy for a Development Officer in the Continuing Education Division (Ex. 6). The grievor applied for the position. He was interviewed by two interview teams. The College chose none of the internal candidates. On July 28, 199# the grievor was notified by telephone that he had not been successful. This telephone conversation will be dealt with in more detail later. The College then went on to advertise the vacancy externally in the local newspapers (Ex. 7). The grievor applied for the job again in response to those advertisements. The grievor was not interviewed. On or about October 8, 199# the successful external candidate, Tallon, was hired, and the College circulated a notice (Ex. g) of her hiring on October 12, 199#. Following the July 28th telephone call, the grievor held some discussions with Art Domenicucci, a Union steward, about grieving. Dornenicucci contacted Nicole Perreault on his behalf on or about August 9, 199# to ask for an extension of time limits for filing the grievance. Perreault is the College official responsible for agreeing to extensions. She agreed to the extension, and the grievor was given until August 16th to file his grievance. Sometime shortly 3 before August 16thDemenicucci again contacted Perreault to request a further extension because the grievor's father-in-law had died. Perreault again agreed to an extension until August lgth. Following that, there was no further discussion between Perreault and Dc~nenicucci or anyone else regarding an extension of time limits. The grievor had served as local Union president some years ago and, therefore, was familiar with the grievance procedure and its time limits. The grievor testified that on July 2g, 199# he was telephoned by Foster Zanuttoand informed that neither of the two internal candidates had been chosen for the job. He said that in the course of that discussion they spoke about the interview and about some carplaints the grievor had about the fairness of the questions asked. The grievor also mentioned to Zanutto that he was considering grieving. It would appear from his evidence that there was no specific discussion about the possible grievance. It would also appear from the grievor's testimony that he brought up the idea of speaking to Dan Patterson, Vice President of Ventures and Zanutto's supervisor, and that Zanutto's response was that he thought that was a good idea. The grievor also said that he mentioned the idea of applying when the job was advertised externally and Zanutto encouraged him to do so. The grievor said that in the course of his discussion with Zanutto that night he formed the impression that Zanutto was going to talk to Patterson to see if some sort of compromise could be reached, or sane secondment of the grievor which might occur, or semeprofessional development assigrmmnt the grievor might be given. The grievor said that he had the impression after speaking to Zanutto that there was a chance that the matter might not be closed and that he still had a chance of getting the iob if he spoke to Patterson or entered the external competition. He said that he was of the view that Zanutto was going to do his best to convince Patterson that he was a suitable candidate for the job. He also indicated that he took Zanutto's advice to him about how to speak to Patterson and the other things Zanutto was saying as meaning that he still had a good chance of getting the job. He also said that he mentioned the 60 day "reversal clause" in the collective agreement and suggested that Zanutto use it to give him a chance to prove himself in the job. He said that Zanutto rejected that idea because the College might have to go through the interview and training period twice if it did not work out. The grievor acknowledged that he had approached the steward, exPressed dissatisfaction with the process and result of the job competition, and asked for advice. He said that steward suggested asking for an extension until the holidays were over and there was a chance to talk to Zanutto and Patterson. The grievor was aware that both extensions requested were granted. Between 3uly 2gth and August 19th the grievor spoke to Zanutto again. Ihat discussion covered much the same ground as the previous one. There was further discussion about professional development opportunities, and Zanutto said that he would discuss those with Patterson to see if something along those lines could be worked out. In the second conversation, there was no further discussion of any grievance at all. The grievor said that he had the impression from Zanutto that he had to "sit tight" and wait for Zanutto. The grievor had no discussions with the steward about extending the grievance time limits beyond August 19th. There was an exchange by E-mail between Zanutto and the grievor in early SeptaT~ber (Ex. 9). Zanutto'smessage to the grievor dated September 2, 1994 was: Hi, Larry. Dan responded today to my request for his thoughts on any involvement by you in CE DO work on a special arrangement basis. He said that he wanted to talk with you personally about your ambitions and that he would meet with you upon his return from China on Oct. 2. I suggest you call . . . to set up an appointment now for when he returns. The grievor arranged tomeet Patterson on October 3rd. In the meantime, on or about September 13th he learned that the College had interviewed candidates for the advertised job. He had not been interviewed, and conceded that he knew on September 13th that he would not get the job. When the grievor met Patterson, the latter tried to point out what he thought were the grievor's shortcomings in relation to the job. The grievor said that he brought up the subject of the 60 day "reversal clause" in the collective agreement and that Patterson had been unaware of its existence. He said that Patterson expressed the opinion that the College should utilize a clause like that to its fullest because it would provide an excellent opportunity for people to prove themselves. The grievor said that he also discussed with Patterson the possibility of taking on some of Dc~nenicucci's responsibilities in the technology ar ea. The grievor indicated that he might have said something to Patterson about having considered grieving in July. He said that he also informed Patterson that he had spoken to Zanutto about applying for the externally advertised job and Patterson did not discourage him. The grievor indicated that at the end of the meeting he was not sure whether or not Patterson had turned him down. The grievor indicated that he filed his grievance once he knew who had been hired because he wanted to compare his qualifications to those of the incumbent to decide whether or not the incumbent's were superior to his. He said that he did not file a grievance earlier because he thought, after talking to Zanutto, that there was still a chance he could get the job and he did not want to jeopardize the efforts he thought Zanutto was making on his behalf, or the possibilitieswhich Zanutto was discussing with Patterson. He also expressed an inherent fear of having to pay the consequences of grieving. We were referred to the following job posting provisions in the collective agreament in addition to the articles already cited above: 17.1 Notices Notices shall be posted of a vacancy in a classification covered by the Agreement for a period of five (5) days .... No outside advertising for the position shall be conducted and no aRoloyee shall be hired from outside the College until the position has been posted for the said five (5) days. 17.1.1 Consideration - BargainingUnit Employees When a vacancy occurs and employees within the bargaining unit at the College apply, the college shall determine the successful candidate based on the qualifications, experience and seniority of the appli- cants in relation to the requiranents of the vacant position. Where qualifications and experience are relatively equal, seniority shall govern, provided the applicant has the necessary qualifications and experience to fulfil the requirements of the position. 17.1.1.1 Notification - At~plicant Ail applicants will be acknowledged and all applicants who are interviewed will be notified of the outcome of their application and name of the successful internal applicant, if any. The Collese will not interview applicants from outside the bargaining unit until it has carkolied with Articles 17.1 and 17.1.1 above. The College will not consider applicants from outside the bargaining unit until it has assessed internal applicants and notified them of the results. 17.1.~ Consideration - Non-Bargaining Unit Employees Employees who are not included in the bargaining unit may apply for posted vacancies but will be considered only after the application of Articles 17.1.1 and 17.1.1.1. In addition to any other factor that the College considers relevant, consideration will be given to service with the College. The College's position, in sam~ry, is that the grievor's cause of action crystallized on July 28thwhen he was told that he would not get the job and that he chose to let the time limit expire, after having sought and been granted 7 extensions. It argued that nobody from the College ever made promises or inducements or held out incentives to the grievor to get him to refrain from grieving, and we have no alternative but to conclude that the grievance is untimely. The Union took two alternative positions. In sunnary, the first arg~nent is that the grievance is timely because the grievor did not become aware of the fact that he was unsuccessful in both competitions until the day he learned the incumbent had been hired. The alternative arg~nent is that the College should be estopped from relying on its rights under the collective agreement because its course of conduct led the grievor to believe that something would be done to resolve his complaint and so he delayed grieving until he learned that the incumbent had been hired. We were referred to the following authorities in relation to those arg~nents: Re ReRional Municipality of Ottawa-Carleton and Canadian Union of Public Employees, Local 503 (1985), 33 L.A.C.(3d) 299 (Sinmons); Re Alberta Union of Provincial EmploYees and United Steelworkers, Local 5~85 (1991), 23 L.A.C.(#th) 423 (T. Jolliffe, Alta); and CanadianLabourArbitration (3d ed), Brown and Beatty at s. 2:3130. Looking at the portions of Article 17 to which we were referred, it is clear to us that the College must follow a procedure which ensures that bargaining unit employees are considered before external candidates. The rights of the bargaining unit employees are: to be given consideration before external candidates; and to have their qualifications, seniority, etc. assessed in relation to those of other bargaining unit employees and in relation to the job posted. It is only if there are no bargaining unit applicants or no bargaining unit applicants who have "the necessary qualifications and experience to fulfil 8 the requirements of the position" that the College can look to external candidates. On3uly 2gth the grievor was aware of two things~ He knew that he had not been given the position. He also knew that no one else in the bargaining unit had been successful in the cor~petition. Therefore, pursuant to Article 17.1.1, he must have been considered to lack the necessary qualifications and experience. There is no doubt that his cause of action crystallized then. He could have grieved that the College had violated Article 17.1.1 by not properly assessing his qualifications and experience. The College's actions in advertising externally do not create new rights in the grievor in relation to any subsequent consideration of candidates who respond to that advertisement. The College's obligation to the grievor in relation to Article 17.1.1 have ended once the internal process is completed and the College has embarked on a course of external advertising. Once the College has obtained the right to advertise externally, the collective agreement does not restrict the College's manner of assessing candidates who respond to such an advertisement, except insofar as Article 17.1.~ obliges the College to consider service. Therefore, in our view, the grievor did not revive or acquire any rights under Article 17.1 when he responded to the external advertisement. Those rights would have expired 15 days after July 2gth unless the time period was extended. We do not consider that this case is at all similar to the Ottawa-Carleton situation. In that case, there was never an external advertisement, but rather three separate internal postings in a rather complicated situation where competitions were run on three separate occasions. There the employee concerned could reasonably conclude that no right to grieve would arise regarding his failure early in the third competition until after someone had been chosen for 9 the job. That is not the case here. There was only one internal con~etition, and the grievor was fully aware of his right to grieve after 3uly 2gth. He pursued the matter of a grievance with his steward then, and sought two extensions of time limits. We do not disagree with the authorities cited to us concerning the legal principles involved in estoppel. In this case, however, we do not consider that the College should be estopped from relying on the time limits in the collective agree~nent. According to the grievor's evidence, there was very little discussion with Zanutto and Patterson about any possible or potential grievance. The grievor did not indicate that either Zanutto or Patterson ever specifically said anything intended to induce him not to file a grievance, or that they made any promise to him contingent upon his not grieving, or that they ever discussed his grievance at all to any extent. There is no doubt that the grievor concluded that it would be a better course to put his fate in the hands of Zanutto and Pattersonl however, on his own evidence, his decision was based primarily on inloressions he had after speaking to those two men, rather than on anything more concrete. The grievor's evidence must also be looked at in the context of his efforts, begun after his conversation with Zanutto, to have the time limits for grieving extended. It is surely clear that, despite what he said about the impression he gained from Zanutto, he was pursuing the possibility of grieving. Nothing that he reported had been said to him between 3uly 2Sthand August 19th would suggest that anyone from the College had done or said anything with a view to convincing him to let his extension expire without grieving, or intended to affect his right to grieve. For all of the reasons set out above, we find that the grievance is untimely 10 and that we lack jurisdiction to proceed farther. ElATeD AT ~, (IN'rARIO THIS ~4~y OF ~J~ , 1995. Cai I Brent Al Merritt, College Nominee Sullivan, Union Nominee