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HomeMy WebLinkAbout1988-1051.Hislop.91-12-09 ONTAFt/O EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTAR.~. M5G '~Z8 TELEPHONE/T~L~-PHONE: RUE GUNDA~ OUE5T, ~UREAU ~00, TORONTO tONTAR~OJ. MSG ~8 FACS~MILE/T~L~COPlE : [4 ~5) 225-~396 1051/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before' THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hislop) Grievor - and- The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: A. Barrett Vice-Chairperson P. Klym Member D. Walkinshaw Member FOR THE A. Ryder GRiEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J. Smith EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING November 4, 1991 The grievor was employed in the unclassified service as a Motor Vehicle Operator 1 on a series of 27 consecutive contracts between November, 1980 and September, 1988, when this grievance arose. Some contracts were for part-time positions, but most were for full-time work. In September, 1988, the employer declared a Motor Vehicle Operator 1 position vacant; posted the vacancy~ and held a competition. Mr. Hislop competed but lost the competition, Pursuant to Articles 3 and 4 of the Collective Agreement unclassified employees may not grieve ~ob competitions. Mr. Hislop asks us, as a preliminary matter, to find that he was a classified employee, at the time of the job competition and thus allow him to proceed with his competition grievance. Mr. HisloD's grievance comes to be decided in the wake of the Ontario Divisional Court decision in Bere'sford/Milley and Greco- Tarantino'dated November 26, .1990. The court upheld Grievance Settlement Board decisions holding that serial appointments to the unclassified service of people performing the same work as classified employees on an on-going basis were improper and contrary to the Pubic Service Act. The court also affirmed that the Grievance Settlement Board has the ultimate remedial power to appoint an employee to the classified service if it considers that remedy appropriate for a particular employee. The court noted however, that appointment to the classified service would be a "drastic remedy". Both before and after the Divisional Court clarified the remedial jurisdiction of this Board, several panels of the Board have wrestled with the issue of remedy. If a person is found to have been improperly appointed to the unclassified staff, what is his or her status? There are only two classes of employees in the public service: classified and unclassified, and each is appointed in a different manner and by .a different authority. To be appointed to the classified service a person.must respond to a job posting and win a 'competition pursuant to Article 4 of the Collective Agreement. This Board is naturally reluctant to require the employer to appoint an improperly appointed unclassified person to the classified service thus violating the job posting provisions of Article 4 of the Collective Agreement. Nevertheless, some remedy must be found for a person who has suffered detriment as a result of ~he employer's improper appointment of him or her to the unclassified service. As set out in Wagner G.S~B.-351/89 (Vice- Chairperson Slone) the basic ~rinciples to be applied when fashioning a remedy are: "1. The jurisdiction to apply a remedy should be directed to compensating a grievor for his actual loss or detriment suffered as a result of unlawful management action. While that loss may be difficult to quantify~ the Board has broad powers and must fashion the best remedy it can find'. However~ it is not appropriate in dispensing remedies to confer a windfall on a grievor, by compensating someone who has not suffered any actual loss or detriment. 2. In fashioning a remedy, this Board should not order one side or the other to breach the Collective Agreement or act contrary to a statute or regulation. This may be viewed· as a variation on the theme that two wrongs do not make a'~ight" In that case the .Board fashioned a remedy for the grievor which attempted to redress the improper classification without declaring her to be a classified employee, in the following manner at page 23 of the decision. "1. We declare, that the job which the Grievor performed ought to have been filled by' a posting and an appointment to the classified service. 2. We order the Employer to post the job in compliance with Article 4 or 60, depending upon whether it wishes to have the job full-time or part-time, since we are led to believe that the job will be unfilled as of October 31, 1989 because of a lack of funding, this order will only apply if and when the Employer wishes to fill the position again. 3. The Grievor has no present status other than someone who was at one time an unclassified employee. She is not classified, nor has. she ever been classified. 4. As a matter of fairness to the Grievor, and as an attempt to put her into as Good a position as she could possibly have hoped to ~e in had th~ Employer recognized its obligation at an earlier stage, we order the Employer to permit the Grievor to compete for the job as an outside eandida~e~ either in a truly open competition or as an exception in an otherwise internal compet~ti6n. The Employer must consider her application in Good faith, and in order to ensure that this obligation is not ignored, the Grievance Settlement Board will retain jurisdiction to review the process of selection should the Grievor seek such a review, to make sure that it meets the requisite standards for a competition. Any such "grievance" would not derive .from the Collective Agreement in the usual way, but would be an extension of this grievance." Vice-Chairperson $1one was of. the view that the Grievance Settlement Boa'rd should and could not order the employer to grant~. the grievor classified status because it would contravene the job posting provisions of the Collective Agreement. .Subsequently, the Divisional Court clarified that this Board can order the Employer to appoint to the classified service if no less drastic remedy will .reasonably suffice. Several remedy cases have been decided by this Board since the Divisional Court decision, but none is on all fours with this case. In Canete G.S.B. 2192/90 the Board found that the grievor had been improperly~ appointed to the unclassified 'service for approximately 18 months. She was employed as a clerk performing overflow work tO assist secretaries. Finally five secretarial positions were posted and filled and it became unnecessary to continue the services of the clerk. The grievor had not applied for any of the posted vacant positions because she was a clerkr not a secretary. That panel of the Board chaired by Vice-Chairperson Simmons held at page 17, that: "...The Employer ought not to be able to avoid posting vacancies in the classified service on the one hand and use unclassified ~employees who have much less security than classified employees, on the other hand, through not following their appointments according to their regulations" In result the Board placed the grievor on the surplus list in the classified service pursuant to Article 24-'~o'f the c'A'~"lective Agreement which would enable her to seek active employment within the government at her clerical level. In Blondin et al G.S.B. 78/89 three grievors seeking to be appointed to the classified service were actually appointed to the classified service as a result of winning competitions between the time their grievances arose and the time of the Board h~aring. The Board found that the grievors had been improperly appointed to the unclassified staff for quite some time prior to filing their grievances, and therefore ordered that the employees were to be considered as having 'been appointed ~to the classified service commencing 20 days prior to the filing of their ~rievanc'es, with all wages and benefits flowing from the Collective Agreement retroactive, to that time. The Board felt confident in making these appointments because it was able to "safely conclude on the balance of probabilities that had the positions been posted earlier the ~rievors would have applied and been successful." In Everin~ham G.S.B~ 1144/90 a panel chaired by Vice- Chairperson Kirkwood analyzed the Divisional Court's decision~in Beresford/Millev and the reasoning in Wa~ner(supra) and set out the criteria for determining whether or not an improperly appointed unclassified employee should be appointed to the classified service. At page 9 the B~ard said: "The Board must consider whether there was a "vacant" position, whether the grievor ought to have received the opportunity to apply for the position and whether on the balance of probabilities the grievor would have likely won the competition, in considering if an employee ought to be appointed to the classified service. If the Board were to determine that the grievor would have likely competed successfully in such a competition, the grievor has been deprived of a right, suffered a loss that ought to be remedied. The power of this Board, although remedial, must be exercised cautiously, as it can deprive other members of the classified staff of the ability ..... to compete for the position." In that case the grievor had been continuously employed on a part-time basis for about nine years on numerous contracts, but her position had finally been eliminated due to lack of funding. In result, the Board decided that the grievor should be appointed to the classified service in the part-time complement as o~ the date of the filing of the grievance. Due to the elimination of the position she was given the right to'compete for the position if it was re-created within a year of the issuance of"the decision. She was also entitled to the notice and severance pay set out in the Collective Agreement for classified employees. Further, the Board remained seized of jurisdiction in the event there were any allegations of impropriety in any competition that might take place in the succeeding year. In our case Mr. Hislop competed for the position that he had essentially been occupying for eight years and was unsuccessful. The Employer concedes that he was improperly appointed to the unclassified staff as of twenty days before the filing of the grievance. The Employer says, however, that we need not go so far as to appoint Mr. Hislop to the classified staff in order to put him in the position he would have been in had he been properly classified before the competition. All we need to do is grant him the right to grieve the competition and allow his competition grievance to proceed. By doing so, we would be putting him in the position he would have been in had he been properly classified at the time of the grievance. Union counsel argues that we should fashion for this grievor a remedy like the one in Canete(supra) and declare the grievor to be classified, but without a position. This would place him on the surplus list and allow him to proceed with his competition grievance. In our view to do so would be to go beyond the criteria set out i~-Everinqham(supra) in that we cannot-find on a balance of probabilities that the grievor would have likely won the competition had one been held earlier. The union urges us to treat the failed competition as a neutral event becauserit is being grieved, and to f~nd on a balance of probabilities that anyone who has been hired on 27 consecutive contracts over a period of eight y.ears in an entry level position must have been satisfactory and is in all respects adequate to the job. We will not go that far at this time. We will permit the competition grievance to proceed however. If the-grievor is successful and obtains the position, either by direction of the Board or in a re-run of the competition, then his classified ~tatus can be back dated to 20 days before the date of the grievance. If his competition grievaqce is GSB 1051/88 OPSEU (Hislop) and ~4inistry of ComMunity & Social Services ADDENDUM OF UNION NOMINEE In my opinion, this is a case that clearly is appropriate for an immediate appointment to the classified service as of the date of the competition. This would confer Article 4 status as a classified employee On to the gr~evor for the purpose of the competition and if he should be unsuccessful in the competition he could revert to the surplus list. However, the award declines to take this step at this time, but it gives the grievor the right to have the competiti0D grievance proceed. The effect of this is to give him Article 4 status for this competition. I am joining my colleagues in this award at this time on the basis tha~ this issue can be revisited in the event the grievor is unsuccessful in his competition grievance. Should that situation arise, the Board will be required to make a determination of the final remedy at that time. In addition,'I can't agree with the comment that the grievor would not have had this job if there would have been a competition earlier. He is obviously qualified for this job. We can't speculate as to what may have been the relative qualifications of-any other applicants if the job had been properly posted earlier. unsuccessful then the grievor will have lost nothing by his improper appointment to the unclassified staff. In fact he would have had the benefit of a ~ob which.he would not otherwise have been able to get had there been a competition earlier. Accordingly, it is our preliminary decision that Mr. Hislop's remedy for his improper appointment to the unclassified staff will be limited at this time t0 permitting him to continue with his competition grievance. DATED at Toronto, this 9£hday of December, 1991. A. BARRETT, Vice-Chairperson "I Concur" (addendum attached) P. KLYM, Member D. WALKINSHAW, Member