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HomeMy WebLinkAbout1989-0677.Mattson.90-06-26 ONTA'RJO EMPL 0¥~:$ DE LA COURONNE ' · ' CROWN EMPLOYEES DE £'ONTARtO GRIEVANCE C,OMMI8810N DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 ~UNOAS STREET WEST, SUfTE 2100, TORONTO, ONTAFUO. MSG 1Z8 TELEPHONE/TELEPHONE: (416~ 326- 780, IRUE DUNDAS OUEST, E~IJREAU 2100, TORONTO (ONTARIOJ. MEG tZ8 FACSJMJLE/T~L~COPIE ,, ~t 76) 326-~396 67'7/89. IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN'. 0PSEU (Mattson) Grievor - and - The .Crown in Right of Ontario (Ministry of Housing) Employe£ - and - BEFORE: S.L. Stewart -Vice-Chairperson M. Vorster Member D. Montrose Member FOR THE D. Wright GRIEVOR: Counsel Ryder, Whitaker, Wright and Chapman Barristers & Solicitors FOR THE C. Osborne EMPLOYER: Counsel Fraser & Beatty Barristers & Solicitors FOR THE J. Eattray THIRD PARTY: D. Moore Counsel Lockwood, Bellmore & Moore Barristers & Solicitors HEARING: November 30, 1989 April 12, 1990 D ECI SI ON This proceeding arises from the grievance of Ms. R. Mattson, dated April 14, 1989. In this grievance Ms. Mattson alleges that she was denied the position of Rent Review Administrator with the Ministry of Housing in contravention of Article 4 of the Collective Agreement. The successful applicant, Ms. P: Cassady, was given notice of this proceeding and was represented by counsel at the hearing. On the first day of hea.ring, on behalf of Ms. Cassady, Mr. Moore requested and was granted an adjournment of the proceedings. After considering ~he submissions of counsel the Board unanimiously concluded it would be unfair to Ms.. Cassady's interests to proceed with the hearing in light her counsel's late receipt of numerous documents relevant to the case and his resulting inability to properly prepare for the hearing. The hearing reconvened, on April 12, 1990. On that date the parties were successful in resolving the grievance. However, prior to the resolution of the grievance it was necessary for the Board to deal with a request by Mr. Rattray that a grievance dated January'il, 1990 filed on behalf of Ms. Cassady, be consolidated with this ' proceeding. Alternatively, he submitted that the grievances should be deal~ with by this panel Of the Board in sequence, with the evidence heard in the Mattson case applying to the Cassady grievance and ~he Board reserving its decision in the Mattson case until the hearings in relation to the Cassady case had been completed. Ms. Osborne joined in this request on behalf of the Employer. The Board provided an oral ruling at the hearing rejecting these requests. In accordance with the request of counsel, we are providing written reasons for this ruling. As previously noted, the grievance of Ms. Mattson alleges tha~ the Employer's decision not to grant her the position of Rent Review Administrator was in contravention of the Collective Agreement. The remedy requested by Ms. Mattson is %hat she be awarded the position and that she be compensated for her losses. The grievance of Ms. Cassady is dated January 11, 1990 and the essence of her complaint is set. out in paragraph 6 of Appendix A of the grievance, which states as follows: It is my intention to oppose Ms. Mattson's grievance. However, if any of her complaints about the competi- tion process are believed to be valid, then I have been unfairly prejudiced by the failure of the Ministry to follow 'the appropriate procedures in filling a posting under Article 4. I, like Ms. Mattson, am entitled to-full compliance with this provision. This requires .the Ministry to conduct a competition in a manner which will ensure that my qualifications and abilities for the position in issue are fully and fairly assessed. I do not, believe that this has happened in this case. In particular, the competition results did not fully reflect the greater abilities and higher qualifications for the position which I possess in comparison with Ms. Mattson. In addition, the questions asked and the criteria used to assess the candidates did not fully reflect the technical knowledge and responsibilities which are actually required, in the position to which I was appointed. Had the appropriate questions and criteria been used, the difference between my scores and those of the other candidates would have been even greater. The relief requested in this grievance is as follows: (1) immediate posting to a position equal to or at a higher classification than my current position; (2) compensation for wage losses and expenses which may result from the Ministry's failure to conduct the posting and competition in accordance with Article 4 of the Collective Agreement; and (3) if the Mattson grievance is successful an under- takin~ and agreement by the Ministry to conduct a new competition for the position of Rent Review Administrator which will properly measure my abilities and qualifications; and reflect the technical' knowledge and responsibilities which are actually required in the ,position. Mr. Wright submitted that while Ms. Cassady was' ' entitled to participate in these proceedings, she did not have status to request the consolidation of another grievance with these proceedings. Mr. Wright's submission in this regard became an academc issue however, as Ms. Osborne advised that the Employer was prepared to adopt the request for consolidation as its own. The thrust of the submissions of Mr. Rattray and Ms. Osborne in support of the position that .the grievances should be' consolidated or heard in sequence was that the 4 two grievances deal with the same competition and, as a result, require common factual determinations to be made. It was argued that delay and expense to the parties as well as the possibility of- inconsistent findings of fact by different panels of the Board would potentially result from these matters proceeding separately. Mr. Wright submitted that it would be inappropr-iate to consolidate the Cassady grievance in this proceeding. While he did not dispute that there were factual matters common to these grievances he noted that the Cassady grievance raised legal issues that were not raised by the Mattson grievance. Mr. Wright's primary submission however, was that it would be inappropriate to consolidate proceedings with respect .to these two grievances because the grievors had adverse interests. In his submission, the effect of such an order would be to require the Union to represent adverse interests simultaneously. Mr. Wright argued that the effect of Ms. Cassady ,having an opportunity to have her separate interests represented in.the Mattson grievance and Ms. Mattson having those same rights at the time the Cassady.grievance proceeded to hearing would permit the Union to represent the interests of the grievors while ensuring that the other person would, have an opportunity to ensure that her position is advanced as well. 5 'The submissions made by Mr. Rattray and Ms. Osborne with respect to the consolidation of these proceedings are not without merit. Certainly, it is desirable to make the mos% efficient use of the resources of the parties and the Board. In this particular instance however, where there is a clear adversity in interest between the two grievors we. agree with Mr. Wright %hat it would be inappropriate to require the matters to be heard together and thus require. the Union to represent both grievors in one proceeding. Moreover, while we recognize that the grievance of Ms. Cassady arises from the same factual background as the grievance of Ms. Mattson, there is the clear possibility that the consolidation of the Cassady grievance with the Mattson grievance would result in proceedings that Would be more lengthy than if the Mattson grievance were dealt with alone. While the submissions of Mr. Rattray suggest that the relief claimed in the Cassady grievance would remain Outstanding even if the Board were to decide that the Mattson grievance should be dismissed, it appeared to the Board that if this were the result, the scope of the hearing involving the Cassady grievance would be narrower and thus could be dealt with more expeditiously. As well, it appeared to the Board that as a practical matter, a decision disposing of the Mattson grievance, whether allowing or dismissing the grievance, would result in the reasonable likelihood that the parties could resolve the 6 Cassady grievance. With respect to the alternative submission that the Board should hear the Mattson grievance, reserve its decision and then hear the Cassady grievance, relying on relevant evidence adduced in the prior proceeding, the Panel concluded that such a procedure would.nOt be appropriate. Aside from the concerns about procedural fairness that this approach gives rise to, this approach would result in a further delay in the rendering of a decision in a proceeding in which delay is already an unfortunate reality. However, after considering the concerns raised by Mr. Rattray and Ms. Osborne, we concluded that it would be appropriate to instruct the Registrar to have this panel assigned to hear the Cassady grievance after the decision inVOlving the Mattson grievance had been released, in the event that the parties remained unable to resolve the Cassady grievance. At the outset of the hearing dealing with that grievance the question of what evidence from the previous proceeding could be relied upon could be addressed by counsel in the event that counsel were unable to agree on that matter. As previously.noted, these are the written reasons of the Board for its oral ruling with respect to the procedural matter raised at the April 12, 1990 hearing. Dated at Toronto, this 26th day June 1990. .S.L. Stewart - Vice-Chairperson M. Vorster Member D. C. Montrose- Member