HomeMy WebLinkAbout1991-0803.Union.96-11-12 ONTARIO EMPLOYES DE LA COURONNE
C RO WN EMPL 0 YEES DE L 'ON TA RIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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GSB # 803/91
OPSEU # MCS-U432
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Union Grievance)
Grlevor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General &
Correctional Services)
Employer
BEFOREs N. Dissanayake Vice-Chairperson
T. Browes-Bugden Member
D. Montrose Member
FOR THE A. Ryder
GRIEVOR Counsel
Ryder, Wright, Blair & Doyle
Barristers & Solicitors
FOR THE J. Benedict
EMPLOYER J.F. Benedict Dispute Resolution Services Inc.
HEARING August 13, 1996
2"
DECISION
This decision deals with an implementation issue. By decision
dated December 19, 1994, the Board determined a policy grievance
wherein the union had alleged that the employer had contravened
article 3.15.1 of the collective agreement by failing to convert
unclassified positions to classified positions at the Whitby Jail.
The parties had a number of disputes as to the interpretation
of article 3.15.1, as it applied to the particular fact situation.
Having considered the evidence and submissions, the Board (with
Board Member Montrose dissenting) provided its interpretation of
the disputed provisions of the article and went on to make the
following findings and directions:
On an application of the foregoing interpretations
to the evidence before us, we make the following
findings:
(a) The hours performed by any unclassified officer
in carrying out the duties relied on by the union in
terms 1, 3 and 4 (supra p. 3) are to be included in the
computation of the hours for purposes of article 3.15.2.
(b) We find that by continuing to assign
unclassified employees to perform the work in question,
the employer has determined that there is a continuing
need, as of the time of the grievance, for the
performance of that work. Therefore, that requirement of
article 3.15.1 has been met.
(c) The hours of work performed by unclassified
officers, while replacing classified officers who were at
work in any capacity are to be included in the
computation for purposes of article 3.15.2. Those hours
are not excluded because the classified officers are not
"on an authorized leave of absence" within the meaning of
article 3.15.2.
3
Taking into consideration the Board's
interpretations and findings set out above, the parties
are directed to endeavour to agree upon the number of
hours of work (items 1, 3 and 4 at p. 3 supra) and
consequently the number of positions, if any, that are
required to be converted pursuant to article 3.15.1. The
Board remains seized in the event the parties are unable
to reach agreement on those issues.
Subsequently the parties came to an agreement that as a result
of the Board's interpretation of article 3.15.1, four unclassified
positions had to be converted. However, they had a number of
disputes as to how and when those positions were to be filled. The
union requested that the Board reconvene to deal with that issue.
Functus Officio
Mr. Benedict for the employer takes the position that the
Board has no jurisdiction to deal with issues relating to the
filling of the converted positions and that the Board is functus
officio for those purposes. This position is based on the specific
wording this Board used in its decision in retaining jurisdiction.
Mr. Benedict points out that the Board directed the parties to
endeavour to agree upon (a) the hours of work and (b) the number of
positions, required to be converted. Then the Board wrote: "The
Board remains seized in the event the parties are unable to reach
agreement on those issues". Counsel therefore argues that the
Board remained seized only with regard to "those issues", namely,
the number of hours and the number of positions, since the parties
had reached agreement on both issues over which the Board expressly
4
retained jurisdiction, it is submitted that the Board is functus
officio with regard to everything else.
The Board strongly disagrees with the employer's contention.
In our view, with or without an express reservation, the Board has
jurisdiction to complete its mandate under the legislation and the
collective agreement. The Crown Employees Collective Barqaining
Act in section 19(1) stipulates that after giving the parties full
opportunity to present their evidence and to make their
submissions, the Board "shall decide the matter and its decision is
final and binding upon the parties and the employees covered by the
agreement". The "matter" to be decided here was the grievance
alleging a violation of article 3.15.1. That article envisages not
only a paper conversion of positions but the filling of those
positions through a posting of a vacancy in accordance with article
4. Therefore the Board's work is not complete until the positions
are converted, and posted as mandated by article 3.15.1.
In the initial decision, the Board did not go even so far as
to decide if article 3.15.1 had been violated, let alone the
question of filling of vacancies. The Board gave certain
interpretations of the article and directed the parties to
determine if any positions were required to be converted. The
parties by agreeing that four positions were required to be
converted, have in effect agreed that article 3.15.1 was breached
and have now come before the Board. The Board has jurisdiction,
5
with or without an express reservation, to direct the parties as to
what ought to be done in order to rectify the breach.
Furthermore, when the Board expressly retained jurisdiction
with regard to the two calculation issues there was no intention
thereby to decline any further jurisdiction with regard to
everything else. In our view, it would have been a reviewable
error if the Board had attempted to decline jurisdiction without
having completed its task of fully deciding the grievance.
The application of the doctrine of "Functus Officio" to
administrative tribunals was examined by the Supreme Court of
Canada in Chandler v. Alberta Association of Architects, (1989) 62
D.L.R. (4th) 577. Mr. Justice Sopinka for the majority reviewed
the traditional doctrine of "Functus Officio" and concluded that
the doctrine should be applied less vigorously to administrative
tribunals. At p. 596, Mr. Justice Sopinka wrote:
I am of the opinion that its application must be
more flexible and less formalistic in respect to the
decisions of administrative tribunals which are subject
to appeal only on a point of law. Justice may require
the reopening of administrative proceedings in order to
provide relief which would otherwise be available on
appeal.
Accordingly, the principle should not be strictly
applied where there are indications in the enabling
statute that a decision can be reopened in order to
enable the tribunal to discharge the function committed
to it by enabling legislation. This was the situation in
Grillas, supra.
6
Furthermore, if the tribunal has failed to dispose
of an issue which is fairly rai~ed by the proceedings and
of which the tribunal is empowered by its enabling
statute to dispose, it ought to be allowed to complete
its statutory task. If however, the administrative
entity is empowered to dispose of a matter by one or more
specified remedies or by alternative remedies, the fact
that one is selected does not entitle it to reopen
proceedings to make another or further selection. Nor
will reserving the right to do so preserve the continuing
jurisdiction of the tribunal unless a power to make
provisional or interim orders has been conferred on it by
statute: See Huneault v. Central Mortgage & Housing
Corp. (1981), 41 N.R. 214 (F.C.A.).
For those reasons, the Board concludes that it is not functus
officio and that it has jurisdiction to deal with the issues
raised.
The effect of the freeze on hiring on article 3.15.1
This grievance was filed on May 1, 1991. The Board's decision
was issued on December 19, 1994. It is common ground that
subsequent to this, the Assistant Deputy Minister of Correctional
Services by a directive dated July 24, 1995 ordered "a freeze on
all recruitment for positions in all institutions throughout the
Correctional Service Division", and that "competitions that are in
process are to be frozen, unless a job offer has been made to the
successful candidate in writing as of this date". By a further
memorandum dated August 2, 1995 the ADM announced inter alia, that
"Effective immediately Senior Management Committee has decided to
freeze the staffing of all Ministry vacancies, lateral transfers
and temporary assignments".
7
Employer counsel pointed out that the "freeze" was applied
across the Ministry. The freeze was imposed in good faith as part
of the government's policy of down-sizing the Ontario Public
Service. It was therefore submitted that the employer's
obligations in implementing the Board's decision and complying with
article 3.15.1 should be seen in the context of "the reality of
down-sizing in the Ontario Public Service".
The effect of this same "freeze" on this same employer's
obligations under article 3.15.1 was considered by the Board in R~e
OPSEU Union Grievance, 1106/92 (Kaufman). There the parties had
settled a policy grievance alleging that the employer had violated
article 3.15.1 by failing to convert and post certain positions at
the Quinte Detention Centre. As a term of the Minutes of
Settlement, dated May 11, 1995 the parties agreed inter alia to
create and post certain classified positions, within 60 days of May
8, 1995, after the surplus list was cleared. The employer did not
identify any surplus employees as eligible for the created
classified positions and therefore in accordance with the Minutes
of Settlement they were posted and applications were received.
The freeze on filling vacancies referred to earlier in this
decision was imposed by the ADM at this stage of the competition.
In purported compliance with the freeze directive, the employer
decided to hold the posted competitions in abeyance and reserve the
8
positions indefinitely for surplus employees who may get on the
list in the future.
The Board recognized that the employer acted with the best of
intentions, in the belief that it was acting in compliance with the
freeze directive issued by the ADM. Nevertheless, it was held that
the employer was bound by the terms it had agreed to in the Minutes
of Settlement. The Board held at p. 16-17:
Memoranda of Settlement are binding contracts
between the parties. They are as binding as Collective
Agreements. As such, their terms and provisions can only
be set aside by further agreement of the parties or by
superseding legislation or regulation, or impossibility
or frustration as it is enunciated in the common law of
contract. An arbitrator's authority is drawn from
legislation and the parties' Agreements, including their
Settlements. In the absence of a further agreement, or
overriding legislation, or impossibility or frustration,
an arbitrator is obliged to give force and effect to the
parties' expressed intentions as s/he interprets them, as
of the time they drafted and signed their settlement or
agreement.
Article 3.15.1 clearly contemplates that once established the
positions will be posted. It says "... the Ministry shall
establish a position within the Classified Service to perform that
work and shall Dost a vacancy in accordance with Article 4 (Posting
and Filling of Vacancies or New Positions)". (emphasis added).
The parties would not have agreed that a posting was required,
without also intending that the posting will be completed by
filling the vacancy posted.
9
Just as much as the Board in Re Union Grievance (Kaufman)
(supra) held that the administrative directive imposing a freeze on
filling vacancies cannot override the terms of the minutes of
settlement, such a directive did not have that effect on a
provision of the collective agreement itself or an order issued by
this Board. The government's policy of down-sizing the Ontario
Public Service notwithstanding, the employer must conform with the
terms of the collective agreement and the decision of the Board
interpreting the same. Article 3.15.1 clearly envisages the
creation and posting of positions where certain conditions are met.
The parties having agreed that four positions were required to be
established, article 3.15.1 is fully complied with only when those
positions are filled pursuant to a posting under article 4. This
Board's jurisdiction is not exhausted until that process is
completed.
How and when are the positions created pursuant to article 3.15.1
to be filled:
The union's primary position is that the four positions
created must be filled through a competition limited to
unclassified employees at the Whitby Jail. The employer argues
that article 3.15.1 does not limit it to competitions and that it
is free to fill the four positions through any of the methods of
filling a vacancy allowed under article 4. It is particularly
argued that the employer is entitled to fill the positions by
deploying employees on the surplus list. Although there were no
10
eligible employees on the surplus list at the time of the
grievance, or at the time of the hearing, the employer takes the
position that, in view of the "extra-ordinary times of Ontario
Public Service down-sizing and the freeze on hiring in the Ontario
Public Service", it should be allowed to reserve the four positions
indefinitely for employees who may be put on the surplus list in
the future. It is further submitted that if a posting is made, the
employer should have its usual right to determine the area of
research.
In resolving these issues one must refer back to article
3.15.1 and its purpose. Article 3.15.1 reads:
3.15.1 Effective April 1, 1991, where the same work
has been performed by an employee in the
Unclassified Service for a period of least two
(2) consecutive years, and where the ministry
has determined that there is a continuing need
for that work to be performed on a full-time
basis, the ministry shall establish a position
within the Classified Service to perform that
work, and shall post a vacancy in accordance
with Article 4 (Posting and Filling of
Vacancies or New Positions).
In its earlier decision in this matter, the Board concluded
that the purpose of article 3.15.1 was not to confer any rights on
individual employees but to add classified positions to the
bargaining unit. Thus at p. 7 it wrote:
It must be remembered that the provision is about
conversion of "positions" and not about converting the
status of individuals from unclassified to classified.
Even if one employee performed all of the work relied
upon by the union, it is clear that article 3.15.1 does
not envisage that that particular employee's status would
11
be changed from unclassified to classified. Instead, a
position in the classified service is to be posted, and
filled according to the provisions of the collective
agreement. Article 3.15.1 does not confer any individual
rights, but envisages the addition of classified
positions to the bargaining unit.
In our view, article 3.15.1 is an attempt by the
parties to stipulate some guidelines to limit the
employer's right to use unclassified employees to perform
work for which there is a regular and continuing need.
In Re Norland, 3160/92 (Gorsky) the Board recognized that
article 3.15.1 was "clearly intended to increase the rights of
unclassified staff other than seasonal employees". (p.30). In
that case, an unclassified employee had unsuccessfully applied for
a position created and posted in accordance with article 3.15.1.
He filed a grievance alleging a breach of article 4.3.1. The
employer made a preliminary objection based on the generally
accepted proposition that while they may apply for postings under
article 4, members of the unclassified service were not entitled.
under the collective agreement to grieve under article 4.3.1. The
issue before the Board was whether the fact that the posting was
one made pursuant to article 3.15.1 gave unclassified employees a
right to grieve under article 4 - a right which'they generally did
not have.
Following from the recognition that article 3.15.1 was
intended to benefit unclassified staff other than seasonal
employees, the Board held that the qrievor was entitled to grieve
12
in the particular circumstances. At pp. 30-31, the Board reasoned
as follows:
Art. 3.15.1 applies to unclassified staff other than
seasonal employees. If it is to be interpreted as
suggested by counsel for the Employer, then all it means
is that any non-seasonal position in the unclassified
service that fulfils the "when" test identified by
counsel for the Union has to be posted. The reason why
art. 3.15.1 deals only with positions held by employees
in the unclassified service other than seasonal employees
is because the "when" is identified in relation to
positions where "there is a continuing need for that work
to be performed on a full-time basis" and this has been
the case "for a period of at least two (2) consecutive
years .... " The situation would not arise in the case of
positions associated with seasonal employment.
Nevertheless, given the literal meaning suggested by
counsel for the Employer, all the Employer would have to
do to comply with art. 3.15.1 would be to post the
vacancy.
If counsel for the Employer is correct, neither
seasonal or non-seasonal unclassified employees would
have a right to grieve an alleged violation of art. 4.3.1
after they applied for a position posted pursuant to art.
3.15.1. That is, their rights in this regard would not
have changed as a result of the introduction of art.
3.15.1.
At the same time, there would be a definite
disadvantage to unclassified staff other than seasonal
employees, such as the Grievor, whose positions were
converted from unclassified to classified ones pursuant
to the application of art. 3.15.1. They would risk
losing their jobs without recourse to arbitration based
on an alleged violation of art. 4.3.1. Other
unclassified employees who apply for the position and are
unsuccessful undertake no such risk.
In our view, the combined effect of this Board's earlier
decision in this matter and its decision in Re Norland is that the
Board has recognized that while article 3.15.1 was not intended to
confer rights on individual employees, it was intended that it
13
would increase the rights of unclassified staff (other than
seasonal employees) generally as a group.
With that purpose of article 3.15.1 as the foundation, the
Board now turns to the specific issues between the parties.
The method of fillinq a position established under article 3.15.1
The first issue is whether in filling the positions created
pursuant to article 3.15.1, the employer is entitled to resort to
the surplus employee list under article 24.
It is to be noted that article 3.15.1 states "shall post".
Generally a posting is understood to involve a competition process.
Filling of a vacancy through the surplus list does not involve any
"posting" or competition. Surplus employees are redeployed through
an "assignment". See, article 24.6. Therefore it is difficult to
conclude that an assignment of a surplus employee meets the
requirement "to post".
This conclusion is also consistent with the purpose of article
3.15.1 discussed above. If a position created under article 3.15.1
is filled through the surplus list, that does not benefit or
increase the rights of unclassified staff. For all those reasons,
the Board is of the view that resorting to the surplus list is not
an acceptable means of complying with article 3.15.1.
14
The next issue is whether the employer is restricted to a
competition as the only means of filling a position created
pursuant to article 3.15.1 or whether it could resort to any of the
methods included in article 4.
While the title of article 4 refers to "Posting and Filling"
of vacancies, the subsections separately deal with "postings" on
the one hand and other methods of filling a vacancy on the other.
Article 4.6.1 and 4.6.2 deal specifically with filling of vacancies
or new positions through assignment, as opposed to a posting. The
article draws a distinction between "Postings" and other ways of
filling a position, namely by various types of assignment. None of
the methods of filling a vacancy by assignment recognized in
article 4 involve a posting of a vacancy. Therefore, the better
interpretation is that when the parties, rather than stating "fill
in accordance.with article 4", stipulated "Shall Dost a vacancy in
accordance with article 4", they envisaged a job posting and a
competition for the positions established under the article.
Again, this interpretation is buttressed by the purpose of
article 3.15.1 discussed above. As with assignment of surplus
employees, the filling of vacancy established under article 3.15.1
through any of the other types of assignments, eg: employees
returning from long term disability or workers compensation, does
not in any way work to the benefit of unclassified employees. On
the contrary, as discussed by Vice-Chair Gorsky in Re Norland
15
($DDra) they stand to be disadvantaged by being bumped by one of
these assigned employees. The parties could not have intended such
a result,
It follows from the above that article 3.15.1 requires a
posting and a competition as the means of filling positions
established thereunder. Filling of those positions through any of
the other types of assignments is not an option available under
article 3.15.1. The Board recognizes that a different
interpretation would have been more helpful to the employer in view
of the government's policy of down-sizing the Ontario Public
Service. Nevertheless just as the Board held in Re union Grievance
(~), that such an administrative policy cannot alter or
supersede the employer's obligations under a memorandum of
settlement it had entered into, an administrative directive
regardless of how reasonable and bona fide its motivation may be,
cannot have that effect on the obligations of the employer under
the collective agreement.
The nature of the competition required under article 3.15.1
Finally, having determined that the employer was bound to post
the four positions established, the issue still remains as to how
and when those postings are to be held. Again it is appropriate to
seek guidance from the purpose of article 3.15.1. In the Board's
view, the ultimate beneficiary of article 3.15.1 is the union. The
union benefits by the increased rights of unclassified employees-as
16
a class. The increased right, ie. to compete for the posted
positions and upgrade their employment status, accrues to the class
of unclassified employees covered by article 3.15.1 ie., non-
seasonal unclassified employees. It is not reasonable to interpret
article 3.15.1 as limiting that increased right to unclassified
employees of a particular workplace. The intention is to confer a
benefit' to the union, by having unclassified positions in the
bargaining unit converted into classified positions, which carry
greater rights and benefits under the collective agreement.
Therefore, the Board finds that while the employer is required
to limit the competition to non-seasonal unclassified employees,
there is no obligation to limit it to unclassified employees at the
Whitby Jail. In determining the scope of the competition, the
employer still retains its usual discretion with regard to the area
of search.
When the postings are to be made pursuant to article 3.15.1
It was noted by the employer counsel that since article 3.15.1
does not explicitly stipulate when the postings are to made, the
employer should be able to hold the competitions in abeyance for an
indefinite period, having regard to the freeze imposed on the
Ministry. As decided by Vice Chair Kaufman in Re Union Grievance
(~) and as discussed above in this decision, the "freeze"
cannot have any impact on the obligations of the parties. No
specific time limits are specified as to when the employer must
17
post a vacancy under article 4 either. Nevertheless, the parties
must have intended that a vacancy, whether arising under article 4
or article 3.15.1, will be posted and filled within a reasonable
period after the condition~ of article 3.15.1 are met. That period
is the time reasonably required for the employer to carry out the
various administrative and clerical functions necessary to put a
posting into place, to conduct interviews and to appoint the
successful candidates in th~ particular circumstances.
In summary
(a) The Board is not functus officio and is entitled to
deal with these issues in dispute.
(b) Article 3.15.1 envisages the filling of positions
created thereunder through postings and competitions in
accordance with article 4.
(c) These competitions must be restricted to non-
seasonal unclassified employees but need not be limited
to such employees at the Whitby Jail.
(d) Despite the freeze on filling of vacancies generally
imposed by administrative directive, the employer is
required to fully comply with article 3.15.1 within a
reasonable period after the conditions in that article
are met.
18
In view of the fact that there were legitimate issues between
the parties in this case as to the nature of their obligations, the
employer ought not to be penalized for the delay to date in
complying with article 3.15.1. The employer is diracted to comply
with article 3.15.1 within a reasonable time from the date of
receipt of this decision. The Board remains seized in the event
the parties have further disagreements relating to implementation
of this Board's decision.
Dated this l2th day of November, 1996 at Hamilton, Ontario.
N. Dissanayake
~ ,~~person
~ T. Browes-Dug
Member
D. Montrose
Member