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HomeMy WebLinkAbout1989-0902.Watkin.90-05-07 ONTA RIO EMPL OY/J$ DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS '150 OUNOAS STREET WEST, SUITE 2~,O0, TORONTO, ONTARIO. MSG tZ8 TE£EPHONE/7'E,L~PHONE: {416)326-13~8 180, ~UE DUNDAS OUEST, ~UREAU 2~O0. TORONTO {ONTA~/OJ, MSG ~Z8 FACSIMI~E/T~COPlE ; {4t6) 326-~396 902/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (watkin) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer - and - BEFORE: J.W. Samuels Vice-Chairperson L. Robbins Member G. Milley Member FOR THE R. Wells GRIEVOR: Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE S. Shamie EMPLOYER: Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors FOR THE P. Brochu THIRD PARTY: HEARING: April 18, 1990 SECOND INTERIM DECISION 2 This award deals ~¥ith a preliminary matter which arose when our hearing commenced. It follows on our first preliminary award issued in January 1990, which also dealt with various matters which arose at the outset. In February 1989, the grievor, who has worked in the Ministry for some time, applied for a posted position of Economic Consultant, with the classification Economist 4. At the time of the competition, there were two positions available. Mr. War.kin applied and was interviewed. He scored highest, based on the resumes and interview answers, achieving 81 1/2 out of 100. Two more senior applicants scored less than the grievor--Mr. P. Brochu, who scored 80; and a Ms. Ong, who scored 75. Following the competition, Brochu and Ong were placed in the two positions. At our first day of hearing, Mr. Broctm appeared, but Ms. Ong did not. The Board expressed its concern about this, and we said in our first preliminary award (at pages 4 to 5): As we have said, there were two posted positions, ultimately filled by Brochu and Ong. But only Brochu appeared at our hearing. Ms. Ong had not even been given notice of the hearing. Apparently, Ms. Ong had filed a grievance relating to some other posting, and this grievance was settled. The terms of this settlement were not put in evidence before us. However, we were told that, arising out of this settlement, the grievor does not challenge her right to the position she is in after the February 1989 posting. Counsel for the grievor would not say whether Ms. Ong is in the position as a result of the competition or as a result of the settlement, but no one is challenging her right to the position. Therefore, the grievor was only targeting Mr. Brochu. 3 In our view, this cannot be. The grievor is challenging the job competition itself. Suppose that we were to find that the three leading applicants were, in their order of merit Watkin, Brochu, Ong. How could we say that Brochu · should be displaced rather than Ong? Or suppose that we were to find that Watkin and Brochu were relatively· equal, in which case Brochu should get the position because of his greater seniority, but that Watkin did have greater merit than Ong? Perhaps the settlement made between the parties concerning Ms. Ong's grievance will have a bearing on Ms. Ong's situation in our case, but on the face of the matter before us, surely Ong has a distinct interest in our proceedings and ought to have been given proper notice of our hearing and her right to be present, to make representations, and to have counsel of her own. We cannot proceed until this has been done. For these reasons, we adjourned our work on December 21, and we will continue our hearing on April 18 and May 1. In the meantime, we expect that one or both parties will give proper notification to Ms. Ong. In fact, counsel at our first day of hearing did not know precisely how Ms. Ong had found her way into one of the positions. When we resumed our hearing on April 18, Ms. Ong was there with counsel. Mr. Anand had been retained by the Union to represent the Union and Ms. Ong solely in order to make representations with respect to Ms. Ong's status before us. It was the Union's position that Ms. Ong was not properly a third-party in our case. Mr. Anand explained that Ms. Ong had grieved an earlier competition for the position--a competition posted in January 1988. This grievance was setter in May 1989, with the help of this Board's settlement officer, Mr. H. Waisglass, and the settlement was made an order of this Board in Ong, 1547/88 (Dissanayake), dated February 6, 1990. As a result 4 of this settlement,.g/Is. Ong was placed in one of the positions posted in February 1989. Thus, as a result of this settlement, in fact, in February 1989, the Ministry only had one position to post, and the successful candidate was Mr. Brochu. Therefore, Mr. Brochu could be the only target of Mr. Watkin's grievance. Ms. Ong was not a successful candidate in the competition run in February 1989. Rather, she was confirmed in her position by the settlement of her grievance, with respect to an eartier competition, and this settlement was made an order of this Board. Ms. Ong's position cannot be affected by our decision, and she is not properly a third-party in our case. We will now proceed to hear the merits of Mr. Watkin's grievance, with Mr. Brochu alone as a third-party. Done at London, Ontario, this ?th day of t~ay ,1990. ~,~ Samuels, .~- L. Robbins, Member G. Milley, Member