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HomeMy WebLinkAbout1992-3160.Norland.93-09-21 ~~~, -"./ .~{~~ .e"'], " :; ( ,...,,< -'}d../~~;(I\~~>J. ~""J..l:~:" ( ,.4.:- ~,. 'c" i.: d."':":. ONTARIO EMPLO YES DE LA COURCNNE /....... (:': ):. l::: ~,' ..\ ,:, CROWN EMPLOYEES DE L'ONTARIO "'" ;~J~ .~'~:r.: :::.' ,:. t .~ ',..;.o,>",n",,,,.,,,-,,, GRIEVANCE COMMISSION DE 11111 SETTLEMENT . REGiLEMENT '. . BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 21.00 TORONTO, ONTARIO. M5G lZ8 TELEPHONEIT;:L,"PHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG lZ8 FACSIMILE'TELSCOPIE (416) 326-1396 " 3160/92 , IN THE MATTER OF AN ~~ITRATION Under ! THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN QPSEU (Norland) Grievo!." - and - The Crown in Right of Ontario (Ministry of correctional Services) Employer BEFORE-: M. Gorsky Vice-Chairperson M Lyons Member M O'Toole Member FOR THE C Flood UNION Counsel Koskie & Minsky Barristers & Solicitors FOR THE M Smith EMPLOYER Counsel Genest, Murray, DesBrisay, Lamek Barristers & Solicitors HEARING August 27, 1993 ~~. /""-, .' ~ 1 I N TE RIM DEe I s ION Backqround ,- The Grievor, Joan Norland, was at all material tImes a non- seasonal memb~r of the unclassified serVIce, classified as Cook 2 (UnclassIfied), with the position tItle of Cook 2, employed by the MInIstry of Correctional SerVIces at the SarnIa JaIl In SarnIa, OntarIo. Ms. Norland was hIred on June 1, 1980, and has since that time been contInuously employed under a series of fixed term contracts. On October 26, 1992, Ms Norland grieved the failure to appoint her to a position of Cook 2 In the classified serVIce, relying on an alleged breach of art 4 3 1 of the current collective agreement. At the opening of the hearing, counsel for the Ernployer raised a preliminary objection based on the submIssion that article 4 3 1 did not apply to the Grievor as ~ member of the unclassified staff Facts and Positions of the Parties The facts presented to us for the purpose of hearIng the preliminary objection were the subject of agreement. In 1992 a dispute between the parties concernIng whether the Employer was required to convert the unclassified position occupied by the Grievor to a classified one was resolved by its agreeing to post a Q.i; '" ~'\ 2 position classified as Cook 2 In the classified service The posting (in fact for two vacancies) was made on August 4, 1992, with a closing date of August 24, 1992 (ExhIbit 3) , and the Grievor was an unsuccessful candidate, plaCIng ninth out of 37 applicants, 13 of whom, includIng herself, had been interviewed At the time when the posting occurred, the parties were governed by article 3 15 1, which had been introduced into the Immediately preceding collective agreement between the parties that had a term January 1, 1989 to December 1, 1991, WhICh article was continued In the current collective agreement which has a term January 1 , 1992 to December 31, 1993 Effective April 1, 1991, where the same work has been performed by an employee In the UnclassIfied Service for a period of at 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 Ser\nce to perform that work and shall post a vacancy in accordance with Article 4 (Posting and Filling of Vacancies or New Positions). The successful applicants appointed to the posted position were Cindy Kellett and Paul SchneIder. The Board was adVIsed that they ~ere informed of their rIght to attend and participate in the hearing, and were further informed that the only issues to be dealt with on the first day of the hearing scheduled for August 27, 1993 would be with respect to the preliminary objection of the Employer. Neither of the incumbents attended the hearing. ~ ....' 3 Upon bel.ng informed that she was not one of the successful candidates, Ms Norland filed the above noted grievance on October 26, 1992 .- "Statement of grIevance as per ArtIcle 4 "I grIeve the cook's two poSl.tIon as per competItion #CI- 4050-92. " The "settlement desired" was "r wIsh to be awarded a classlf1.ed cook 2 position " It was agreed that the grievance was intended to raise a breach of art. 4.3 1 of the collective agreement In fllling a vacancy, the Employer shall give prImary consideration to qualifIcat1.ons and ability to perform the required duties. Where qualIfications and abIlIty are relatIvely equa I , seniority shall be the deciding factor As above noted, counsel for the Employer raIsed a preliminary objection to the arbitrability of the grievance on the basis that art. 4 3 1 d1d not apply to the Grievor, who, accordingly, could not base a grievance on its alleged violation. Counsel referred to art. 3 1 of the collective agreement which deals with unclassified employees The only terms of this Agreement that apply to employees who are not civil servants are those that are set out 1n this Article. Article 3 2 of the collective agreement provides Sections 3.6 to 3.16 apply only to unclassified staff other than seasonal employees. Article 3 16 of the collective. agreement provides - -- -- ~._- - r.-: .~ ~'o 4 The following Art1cles shall also apply to unclasslf1ed staff other than seasonal employees Articles A, 1, 4.1, 4 4, 6, 7 7, 9, 11, 12, 15, 16, 17, 18 5, 21, 22, 23, 25, 27, 29, 32, 33, 34, 35, 36, and 86. Counsel for the Employer rel1ed on the absence of a reference In any of the sub-articles of art. 3 that would make art 4.3.1 applIcable to unclassifIed staff such as the Grievor It was the positIon of counsel for the Employer, because of the llmited application of the terms of the collective agreement to unclassif1ed staff such as the Grievor, that the only articles that could apply to her with which we are concerned are A, 4.1 and 4.4. It was the further position of counsel that the applicat10n of other "terms" of the collective agreement to the Grievor has been spec1.fically excluded. Articles A, 4 1 and 4 4 are as follows ARTICLE A - NO DISCRIMINATION/EMPLOYMENT EQUITY A.l 1 There shall be no discrImination practised by reason of race, ancestry, place of orig1n, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap', as defined in section 10(1) of the Ontario Human Rights Code (OHRC) A 1. 2 There shall be no discrimination or harassment practised by reason of an employee's membership or activity in the Union. A.2 rt 1S recognized that in accordance with section 14 of the OHRC, the Employer's employment equity program shall not be considered a contravention of this article. 4 1 When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified pOSItion is created in the --, ... ~ 5 bargalning unit, it shall be advertised for at least ten (10) working days prior to the established clOSIng date when aQ\ertised withIn a ministry, or it shall be advertised for at least flfteen (15) working days prior to the established closing date" v.'hen advertised service-wide. All applications will be acknowledged. Where practicable, notIce of vacanC1.es shall be posted on bulletin boards 4 4 An applIcant who 1.S invited to attend an Intervlew WIthIn the CiVll serVIce shall be granted tIme off with no loss of pay and with no loss of credits to attend the interview, provIded that the tIme off does not unduly interfere with operating requirements Counsel for the Employer referred to Daniels, 1544/87 (Fraser). In that case, the grievor was a member of the unclass1.fied serVIce and was not a seasonal employee In early 1987, he applied to a job competltion to fl.ll a posit1on l.n the classified service, and was unsuccessful He alleged that he was denied the position "as per article 4 of the collective agreement," and sought confirmation in the position with full retroactivity and interest. As In the case before us, the employer raised a prel iminary objection that art. 3 of the collective agreement determlnes which of ItS terms apply to unclassified employees. Under the agreement in that case, art. 4 was not included Article 3.15.1 is a provision not found in the collective agreement between the parties when the Grievance in Daniels was filed and only became effective on April 1, 1991 In addition, under the agreement applicable in the Daniels case, articles A, 4 1 and 4 4 were not made appl1cable to unclassif1ed employees Those .... ~ 6 articles only became applicable -0 non-seasonal unclassified employees ~uch as the Grievor l.n the current collectIve agreement At p. 1 of Daniels, the Board noted that counsel for the union conceded that art. 4 dId not directly apply but "relIed on its content to prov1de 'govern~ng pru1c1.ples and standards' for an appraisal of the grievor alleged to have been made during the competition pursuant to S 18(2)(b) of the Crown Employees Collectlve Bargain1ng Act, " and she relied (at pp 2-3) on "the notlon of such an appraisal . . to establish jurisdiction for [the] board to proceed. " The above noted subm1ssions of counsel were unsuccessful Counsel for the employer, in the Daniels case, observed that art 3.1 limited the terms of the agreement that apply to unclassified employees to those set out in art 3, and that art. 3.2 prov1ded that "sections 3.3 to 3 15 apply only to unclassifIed staff other than seasonal emp~oyees 'and thus to the grievor.'" At p 3 of Daniels, the Board notes Article 3 15 provides that "The following Articles shall also apply to unclass1fied staff other than seasonal employees Articles 1, 9, 11, 12, 15, 16, 17, 21, 22, 23, 25, 27, 32, 36, and 85." No other sub- articles of Article 3 make reference to Article 4, and thus that Article does not apply directly to the grievor by virtue of the collective agreement. As is conceded, any grievance relying on such direct application must fail as not being arbitrable, which is a result that may be found in Campbell and Ministry of Health 1088/86 (Draper) That decision followed similar decisions in wood and Ministry of Transportation and Communications ~_.- .. ~ 7 1527/85 ( De I is 1 e) , and Ahluwalia and VashIst and M1.nistrv of Transportation and CommunIcations 725/83 (Springate). Thus the prelIminary objectIon of the employer, on a ground conceded by the un1on, l.S successful, and" we so fInd In Daniels, at p 7, the Board alsCi rejected the submission made on be:1alf of the grIevor that he, although a member of the unclassified staff who could not grieve direct applicat10n (or non- appl ication) of art. 4 to him, could if he has been interviewed . . grieve that interview and any consequent evaluation as an appraisal "contrary to the governIng principles and standards," by s.18(2)(b) of the Act, and . adopt such principles and standards as are found l.n Article 4 as the ones which were "the governing princl.ples and standards " (emphasis in or1ginal) The Board in Daniels, at p. 8, agreed with counsel for the employer that sectIon 18(2)(b) of the Crown Employees Collective Bargaining I I Act did not refer to a job competition I I Counsel for the Employer also referred to Warren, 807/88, 845/88 (Low) 'The grievor in that case was also a member of the non-seasonal unclassified service who filed a competition grievance The employer made a preliminary motion challenging the jurisdiction of the Board to entertain the grievance on the basis that the grievor was an unclassifIed employee who was employed pursuant to a series of term contracts At pp. 2-3 of the Warren case, the Board states rt is pursuant to Article 4 that a classified employee may grieve a competition Art1cle 4, however, l.S not one of the articles which 1S stipulated in Article -_.~ .. I ~ I 8 3 as being applicable to the unclass1fied service The Grievor therefore has no status to grIeve a competition We are referred to the deCISIon In [Daniels) . . WhlCh held that an alleged violation of Article 4 .is not arbl.trable at the lnstance of a member of the unclassified service We f1nd no reason to dl.sagree with this proposition Counsel for the Employer also referred to Porter, 428/90 etc (Brandt) In that case, the grievor was, as is the Grievor in the \ case before us, a member of the unclasslfled staff There were three grl.evances filed by the grlevor, one of them beIng a "competItion" grievance protesting the refusal of the employer to award the grievor a posted position for which he had applled and for which a competition was conducted At p. 3 , the Board states The law is clear that an employee appointed to the unclassified service may not grieve that non-renewal of the contract as a "dismissal" unless it can be established that the "non-renewal" 1S, in essence, a disguised termination for disciplinary reasons. (Skalesky 4299/81). It l.S equally well established that the provls1ons of the collective agreement entitling employees to grieve a job post1ng are not available to employees in the unclassified service. <Daniels 1544/87) The other two gr1evances f11ed In the Porter case were a "st~tus" grievance and a "dIsmissal" grievance The union argued that the appointment of the gr1evor to the unclassified service was improper and the Board was asked to issue an order appo1nting her to the classified service "thereby conferring the requisite status to grieve the job postIng " (at p. 6) . . - ---.-- .. ~ 9 The Board, in Porter, ruled that ~t would fIrst determine the status grIevance because 1f it failed the other two must also be dismissed "As an employee found to be properly apPoJ.nted to the unclassified servJ.ce . . would have no status to gr1eve the job posting " (at pp 6-7) Counsel for the Union submitted that the gr1evances In the cases relIed upon by counsel for the Employer were filed at a time when art 3 15 1 was either not In the collective agreement (Dan1els and Warren) or, although J.n the agreement, was not yet effective (Porter), and it IS principally on the basJ.s of rights said to adhere to the Grievor under that artIcle that counse"l relies Counsel observed that art 3.15 1 IS a relatively new provision in the collective agreement and informed us that he could find no case based on its application that directly dealt with the issue before us Counsel referred to Union Grievance, 311/88 (Watters) which refers to art 3 15 1, but notes, at p 18, that it "was negotiated subsequent to the filing of the" grievance before the Board Counsel for the Union submitted that art. 3 15 1 was designed to fill a gap created by the previous jurisprudence of the Board (see the cases relied upon by the Employer) where unclassified employees did not have an assertible right to job advancement because they could not grl.eve their not being appointed to a position in the classified service that they had applied for. It -- " 'f. ~ 10 was submitted that the subject artIcle was designed to furn,ish unclassified employees such as the Grlevor wlth a real as opposed to an illusory right to advancement into the classifIed serva.ce in the <::Ircumstances described 1n the artIcle "where the same work has been performed by an employee ln the Unclasslfled Service for a perlod of at least two ( 2 ) consecutl.ve years, and where the Ml.nistry has determined that there IS a continUIng need for that I work to be performed on a full-time basis " This was described . by counsel as the "when" aspect of the article That IS, when a posting for a ciassified position would have to be made The last four lines of the article were sa1d to represent the "how" of the artIcle That is, how the posit1on IS to be filled, and it was argued that the language employed d1d not restrict the obligations of the Employer to the mere act of posting, but, realistically interpreted, imposed a requirement that management adhere to the objective criteria set-out in art 4.3 1 . Counsel submitted that the language of art. 3.15.1 indicated that the posItion was to be fl11ed by the Employer carrying out all of the procedures set-out in art. 4, and relied on the statement that the vacancy shall be posted "in accordance with art. 4 (Posting and Filling of vacancies or New Positions)." That language, according to counsel for the Union, when read in context and In the light of the Clrcumstances surrounding the execution of the agreement introducing the article, clearly indicates that unclassified employees such as the Grievor have been granted a I 0: ~ 11 substant1ve right to grieve any departure by the Employer from 1ts obligations contained in all of the sub-articles of art. 4 and not merely sub-articles 4.1 and 4 4 referred to In art 3.16. , That right was said to arIse by way of Impllcat1on, as otherwise art 3.15 1 would be deprived of any meanIng as far as unclassifled employees such as the Gr1evor are concerned (those who were not seasonal employees and who were perform1ng the job posted pursuant to that article at the time of its conversion) It was submItted that the Interpretat10n favoured by the Employer would result in an employee such as the GrIevor beIng worse off as a result of the introductIon of art. 3 15 1 into tHe collective agreement. It was submitted that the introduction of art 3 15 1 was intended to improve the position of unclassified staff such as the Grievor by granting to them a meaningful opportunity for advancement into the classified service while performIng the same job that they held in the unclassified service. It was further submItted that the interpretation favoured by the Employer would create a right in unclass1fed employees such as the Gr1evor that would be entirely dependent on the exercise by management of an unreviewable discretion, with the result being, for practical purposes, no different than the one that would occur pr10r to t-he introduction of art. 3.15 1 a classified employee such as the Grievor could still not file a competion grIevance. It was submitted that for such an "absurd" interpretation to prevail, the language chosen by the parties would have to be clear beyond ,~ ~ 12 peradventure, when vlewed In the light of the other language 1n the agreement and the CIrcumstances surrounding ltS executIon '" It was also submitted that, gIven the placement of artlcle 3 15.1 in that part of article 3 that defInes the rIghts of unclass~fied employees other than seasonal employees, the interpretatl.on suggested by counsel for the Employer would create a speCIOUS rIght l.n favour of such employees If the interpretation favoured by the Employer lS upheld, an unclass1fied employee in the posltion of the Grlevor, who mIght be able to file a grievance to compel the Employer to post pursuant to art 3 15 1, would not only be precluded from grIev1ng the competitIon, but would also r,lsk losing his unclassified position. It 1S one th1ng for an unclassified employee such as the Gr1evor to gr1eve, thereby setting the wheels in motion for a competion pursuant to a'rticle 3 15.1, ~nowing that she may be unsuccessful but that she will still have a right to grieve the competition. It is quite another thing for her to do so without the right to challenge the carrying out of the competion as being contrary to the requirements of art. 4 3 1 Coun3el for the Union noted that art 27, involving the grievance procedure, has been made available to unclassified staff I such as the Grievor by art. 3.16, and that section 19(1) of the Crown Employees Collective Barqaininq Act requlres that a dispute, when referred to arb1tratlon, shall be decided by the Board and '. ~. 13 that "its decision is final and bInding upon the parties and the employees covered by the agreement. " It was submitted that the Employer, In the case before us, IS endeavouring to avoid an obligation cast upon it by virtue of the inclusion 1n the collective agreement of art. 3 15 1 after it has agreed to and has converted an unclassified pos1tIon to a classified one The Employer was said to be endeavouring to eIther read out of art 3 15 1 the obligations to fill the vacancy in accordance w1th all of the requirements of art 4 or to "read down or modify" the article Counsel for the Union stated that the interpretation of the language of art 3.15.1 suggested by him made both "good linguistic sense and good labour relations sense " Concerning the labour relations sense it was argued that the purpose of the introduction of art. 3.15.1, being the creation of an opportunity for unclassified staff to improve their status, could not realistically be achieved if the Employer could ignore the provisions of art. 431 when dealing with the applications of unclassified staff such as the Grievor to a posting made pursuant to art. 3 15 1. Counsel for the Union referred to Toronto Harbour Commission (1979) , 22 L.A.C (2d) 56 (Teplitsky) Although this case was not governed by the collective agreement before us nor by the Crown Employees Collective Bargaining Act, counsel submitted that it was of assistance in interpreting the provisions of art. 3.15.1 In --- ,~ 14 that case, the grIevance stemmed from the failure of the employer to post a notIce of vacancy and to f~ll a position after the ret~rement of the Incumbent The work previously performed hy the incumbent was redistr~buted to a number of dIfferent persons 1ncludlng casual employees, department heads, foremen, capta~ns and a safety superVlsor Counsel for the un1.0n In the Toronto Harbour case submitted that a vacancy existed after the incumbent retIred which the employer failed to fill In contravention of a provIs10n In the collective agreement which was not quoted but which, It would appear from the decision, required the employer to post vacanc~es when there was a need for work to be performed and the work was associated with a posItion that was not then fIlled Counsel for the Union referred to a statement by the majority of the board, at p 57 Mr. Goldblatt submItted that there was a vacancy after Mr. Clarke retIred which the employer In contravention of art 11 of the collective agreement had failed to post. He contended that the work which Mr. Clarke performed was still there and that ex. 2 was evidence of the need for the work. He relied in particular on Re Toronto Electric Com'rs and C.U.P.E., Local 1 (1974) , 6 L.A.C. ( 2d) 243 (Carter) . Counsel also referred to a statement by the majority of the board, at p. 58 Contractual provIsions requiring the post1ng of vacancies are responsive to the employees' legitimate interest that there be a fair opportunlty to compete for vacancies in accordance with the terms of the collective agreement. The criteria determlnlng such competition 1n this collective agreement may be found in art. 11<b) - l:- IS Arbitrators have been alert to prevent an employer from depriving the employees of their right to compete by avoiding the post1ng whenever there is in fact a job to be fIlled On the other hand, the jur1sprudence notes that the requIrement of posting is not a job securIty provlslon, or one wh1ch prevents In itself the employer's reorganization of Its work-force Counsel submitted that although, on the facts of the Toronto Harbour case, the gr1evance was dismIssed, l.n the case before us I there was an acknowledgement of the need for the position and a posting occurred Counsel relIed on the Toronto Harbour case, cmd in particular the last quoted part thereof, 1n support of his argument that the posting of vacanCIes IS respon's I ve to employees' legitimate Interests that there be a fair opportunity to compete for the vacanC1es in accordance with the terms of the collective agreement It was argued that the mere obl.l.gation to post is meaningless in the absence of a fair opportunity to compete An obligation to post was said to carry with it an oblig~tion to defend a selection when challenged on the basis that it was not carr1ed out in accordance with the objective standards provided for in ~he collective agreement. Failure to follow the objective standards was said to ignore common sense and to be unresponS1ve to the parties' legitimate expectations when the article was agreed to. If the provisions of art 4 3 1 can be ignored by the Employer, then classified employees would still be the only ones to have an enforceable substantive claim to positions converted from unclaSSlfiE;!d to classified ones. There was said to be no labour relations sense 1n granting a right, which was intended to be . ~ 16 responSIve to the needs of unclaSSIfIed employees such as the Grl,evor, absent the means of enforcing that right LImiting the obligation of the Employer to the postlng of a vacancy would be tantamount to creating a phaTltom rlght Counsel for the UnIon stated that the three cases relied upon by counsel for the Emplqyer could be distingul.shed on the basis that art 3 15 1 was not ln effect so a,s to affe~t the result In any of them Counsel noted that In DanIels (para 1 at p. 2) there was no reference to art 3 15 1, the only reference being to, art. 4, at p 3 of the decision, where the union agreed that that article had no application Counsel noted that the Union, in the case before us, submits that art 4 is applIcable. rt was submitted that if the decision of the Board In Dan1els, represents good law, it has no application in the case before us. Counsel also noted that under art. 3 2 of the collective agreement art. 3.15.1 applies only to unclassified staff other than ~ seasonal employees and has no application to classified staff This was stated in support of an argument that the parties Intended to benefit and not further disadvantage non-seasonal unclassified employees by the inclus10n of art 3 15 1; a result which would not be realized if the interpre.tation of counsel for the Employer prevailed .- ~ 17 Counsel for the Union referred to the statements of the Board in the last paragraph at p.2 of Warren, and observed that the Board concl.lded, on the basis of the language of the then clol.rrent collective agrement, that art. 4 was not one of the articles stipulated In art 3 as being appl1cable to the unclassified service, and only classified employees could grIeve a competit1on He argued that the s1tuat10n has been changed as a result of the introduct1on of art. 3 15 1 Counsel for the UnIon also submitted that the result In Porter was based on the Board's acceptance of the same argument as prevailed In Daniels. It was submitted that the application of art. 3.15.1 to the facts of the case before us has the effect of making the status of the Grievor as a non-seasonal un~lassified employee irrelevant in determining her r1ght to grieve on the basis of an allegation that the Employer has failed to adhere to the provisions of art. 4.3.1. Counsel for the Union also argued that the interpretat10n suggested by him w1th respect to art 3.15.1 is unaffected by the fact that of the sub-articles of art. 4, art 3.16 specifically refers only to sub-articles 4.1 and 4.4 as being applicable to non-seasonal unclassified staff. He submitted that the argument of counsel for the Employer that only articles 4 1 and 4.4 apply to unclassified staff fails to take into consideration the two different kinds of postings that are contemplated under the . ... 18 collectIve agreement postlngs for clas~lfled posItions resultIng from the application of art 3.15 1, which concern the converSIon of unclassified positions to class~fIed ones, and postings for classifIed pos~tions not bel.ng converSIon poslt10ns. In the case of non-converSIon postlngs for pOSItIons Ln the clasSIfied serv ce, unclassified employees, not be1ng seasonal employees w1thin the mean1ng of art 3 16, could, as the result of the addItIon of art 4 1 as an appl1cable prOVIsion to unclasslfled staff In the current collect1ve agreement, apply for a positIon belng the subject of a posting under that article, and, If Invited to attend an interview WIthin the civil service, would be entitled to be granted tlme off w1th no loss of pay and no loss of credIts ln order to be able to attend the 1nterVl.ew where the tIme off does not unduly interfere with operating requirements In the case of postings resulting from the application of art. 3 15 1, it was submItted that it was not only necessary to post the vacancy but to requ1re that the Employer fill the position in accordance with all of the relevant portions of art. 4, including art. 4.3.1 We were again asked to note that art. 3 15 1 Includes the title of the article "Post1ng and Fllling of Vacancies or New PositIons " It was submitted that we could take this fact into consideration as eVIdence that 1t was the intention of the parties to require the Employer to go beyond the "post1ng" requirement and to adhere, as well, to the "filling" requirement, as there was no need to set-out the full heading of art 4 if the parties only '. I ~. 19 Intended to limit the Employer's obligation to posting the vacancy It was therefore necessary, according to counsel for the Union, for the parties to refer to artIcles 4 1 and 4.4 in art 3 16 as, being appll.cable to unclassified staff other than seasonal employees, so as to dl.fferent1ate the situation env1saged under art 3 15 1, where an unclassIfied pos1t10n was converted to a classlf1ed one and the s1tuation that would arise In the case of other postlngs not covered by the latter art1cle. Artlcle 3.15.1 was said to represent a complete code covering a specifIC situatIon and d1ctated when a posting was requlred under that artIcle and how it was to be fIlled once it was determined that the position should be posted - Counsel for the Employer argued that denying non-seasonal unclassified staff such as the Grievor the right to gr~eve an alleged violation of art. 4 3.1 does not deprive them of any rights after a pos1tion is posted pursuant to art 3 15 1- He noted that under the immediately preceding collective agreements between the part1es prior to the one from January 1, 1989 to December 31, 1991, members of the unclassified staff could not gr~eve to compel an employer to post a position 1n the circumstances described In article 3 15 1, but could, by virtue of the introductlon of the latter article, do so from April 1 , 1991 He also submItted that the effect of making arts. 4.1 and 4 4 applicable to unclass~fied staff such as the Grievor, pursuant to art 3.16 of the current collective agreement, g1ves them a r1ght they did not posses.s ~, 20 previously to apply for positl.ons posted pursuant to art 3 15 1 and to be paid in the circumstances set-out :rn art 4 4 None of these r:rghts were saId to eXIst under previoU!:; collect:rve agreements, and whl.le the rl.ghts of unclaSSIfied staff applYl.ng for pos:rtlons in the classified serVIce are not as extenslve as those of classified employees (in that they still cannot pursue a compet1tion grievance) they do represent greater rlghts t'han previously existed. Counsel argued that if the part1es had intended unclassifIed employees covered by art 3 15.1 to be able to rely on the provisions of art. 4.3 1, they would not have lim1ted the Employ~r's obligatIon to a requirement that it "post a vacancy 1n accordance with art 4, " but would have added the woras "and fill" after the word "post" In the thIrd last lIne of the article. It was submitted that the addition of the title of art 4 could not add to the otherwise clear language of art. 3 .15 1, there being no ambiguity or lack of clarity that might support the argument of counsel for the Union. It was submitted that the added words should be regarded as superfluous and, hence, unnecessary - and, as such, they ought to be Ignored. Union counsel subm1tted that we ought to regard the heading of article 4 as a "preamble" that could pe resorted to as an aid to the interpretation not only of art 4, but also of art 3.15.1 as an Indication that the parties wished to incorporate ail of the --.- - ,. I -, I 21 provislons of art 4 when that artIcle was referred to in art. 3 15 1, with the addition of 1ts headlng. Counsel for the Employer argued that the interpretation suggested by counsel for the Unlon that there IS a difference between s1tuatIons where unclass1fled employees such as the Grievor can and cannot grleve a competition, dependIng on whether a job 1S posted under art 3 15 1 or otherWIse, did not make labour relations sense He submitted that there was no reason to dlstlngulsh the two situations, and that all the partIes had done by agreeing to art. 3 15.1 was to introduce a posting obligation of classified positions 1n the c1rcumstances described, wh1.1e continuing to limit the rights of unclassified employees to grieve when a posItion was posted pursuant to that article, in the same way as their rights were limited in the case of any other posting The inclusion of art 3.15.1 was said to have a different and limited purpose to require an unclassifed position to be posted In certaIn cirumstances. The addition of only arts. 4 1 and 4.4 as articles applicable to unclassified employees was said to further lndicate an intention to restrict the application of other sub- articles of article 4 to unclassified employees The Law ArbItrators have resorted to a number of aids to Interpretation whIch are derived, with necessary adaptations, from .. 22 the rules employed in cIvil cases involving the lnterpreta~ion of contracts The a1ds available to arbItrators are not to be employed In a mechanIcal fashion, and the role of an arb1tra.t.or IS not reduced to that of a mechanIC An examination of the rules reveals that they owe a good deal to common sense, and they must be appl1ed with a good deal of common sense Resort to the rules commonly arlses In situatIons where the parties have chosen language whl.ch may be clear to them but which 1S not clear to them ln the same way. There are a number of statements contained ln Fridman, The Law of Contracts (2d Ed. ) which, while they are made with respect 1::0 the general law of contracts, are applicable to coilective agreements and their 1nterpretatIon 1- There 1S no doubt that the cases emphasize this fundamental government of the written word, and in particular, the plain, literal and ordinary meaning of the written word In a contract However, side by side with this basic principle there have emerged some general principles of constructIon, accordIng to which, where there is some question as to the meaning of language used by the partIes, such issue may be resolved. (At pp. 431-32) 2 The principles, or canons, of constructIon are rules formulated to aid a court ih the interpretation of the intrinsic meaning of the language used by the parties 1n a written . contract In a sense they are the rules of the "game" of construing a contract. The function of the court in this respect is not to make a contract where one does not legally speaking exist but to Interpret the meaning of a contract into whIch the partIes have clearly entered. (At p. 432) 3. As for the admissIb1lity of extrinsic, parol evidence, the legal rules which have been developed ln this respect recognize the Impossibility, at least 1n some circumstances, of confining the parties to the exact . F: 23 words wh1,ch they have wrItten down 1n their correspondence or other negotiatlons The "parol. evidence" rule and its exceptions represent an attempt by the courts to steer a judicious course between the Scylla of str1ct reliance upon the wr1tten words used by the parties, to the exclusion of all else (which might lead to unfair, if not absurd results from t1me to tlme) and the CharybdIs of such complete flexibility and breadth of interpretation, by the adm1ss10n of any evidence at any time 1n any lltl.gation to establIsh what indivl.dual parties "say" that they meant at the t1me of contractIng, that there would never be any certainty about contracts (At p 432) 4 Underlying both the prIncl.ples of constructlon and the admissib1lity of parol eVIdence may be said to be the doctrine of objectlvlty, that IS, that what the parties have agreed should be understood In the way In which their language would appear to the ordinary reasonable man looking at 1t from the outside Admittedly, in some situations courts are concerned with how the words employed by party A were understood by party B, S1nce what is involved in all instances are the intentions 01 the partIes In attempting to discover what party B understood by such language, party B must be treated and regarded as if he were the ordinary reasonable man Sometlmes, exceptlonally, party B can assert that he understood the language in question 1n a special sense, not necessarily that of the "ordinary" man. Such subjectivity depends on whether there were previous deallngs between the parties, or whether, for some reason such as the idl.osyncrasies of the trade or business in which the parties were engaged, including any relevant and applicable customs or usages, a speCIalized meaning of words would be justified. (At pp. 423-33) 5. Where there is no amb1guity in a written contract l.t must be given its I i,tera I meaning. (At p. 441) 6. Only if [to give words their ordinary meaning] would be to create an absurd situation may the court, generally speaking, depart from the basic approach. It is the duty of the court to avoid any interpretation that would result in a commercial absurdity. (At pp. 442-3.) Changing the word "conunercial" to "industrial relations" would make the statement applicable to the interpretation of collective agreements . I 24 7 Departure from the pla1n, ordInary meanIng of words may also be allowed where adherence to the rule would 1nvol ve inconsistency or repugnancy between dIfferent parts of the contract. (At p 4431 ., 8 The pOInt here IS that, SInce the parties obviously dId not intend to contract in such a manner as to produce an absurd agreement, that 1nterpretatlon must be placed upon t_he1.r language as W1l1 gIve it most effect If there are two possible interpretatlons, one of which 13 absurd or unjust, the other of wh1ch rational, the latter must be taken as the correct one, on this baSIS of giving effect to the general contractual Intentions of the part1.es. (At p 443) 9 The court should be guided by the reasonable expectations of the parties, as long as this 1.S compatible w1th the wr1tten contract (lb1d.) 10 Hence, the contract should be construed as a whole, giv1ng effect to everyth1ng In it l.f at all possIble No word should be superfluous (unless of course, as happened in one instance, it IS truly meaningless and can be ignored). (At p. 444.) In Alpine Resources Ltd. v. Bowater Resources Ltd. (1989), 66 Alt L R (2d) 144 (Q B.), Virtue, J states, at p 147 . . The conclusion I reach frOm the authorities is that, generally speaking, when a contract has been reduced to I writIng, verbal or written evidence cannot be relied upon so as to add to or subtract from, or 1n any manner to vary or qua 1 ify the wr 1 tten contract. It ,is however perm1ssible, even when there is no ambiguity, to have regard to extr1nS1C evidence to discover the intention of the part1es by interpreting the words of the contract 1n the l1.ght of the circumstances In which they were used. The court can look to the h1story of the transaction and to the commercial setting in which the contract evolved, in order to discover the real intention of the parties from the words used in the agreement While the court cannot change the words of the contract, it can, if the circumstances required, give those words a broad or loose interpretation (rather than a strict or narrow one) so as to achieve, if possible, the commercial aim and purpose of the parties. At the same time, in making use of extrlnsic evidence, the court must heed the caut10n stated by Laycraft J.A in Bank of B.C. v. Turbo Resources Ltd. (1983), 27 Alta L R (2d) 17, 23 B L.R 152, 148 D L.R (3d) 598, 46 A.R 22 at 29 - 30 (C.A ) -- "" " 25 Consideration of the commercIal setting '1n which a contract IS made IS not, of course, to be confused wlth parole [SlcJ eVIdence of the 1ntent10n of the partIes That is not admissible But the commercIal settlng, of the contract a~slsts In ascertaInIng the IntentIon of the partIes from the language they have used. As 1S so often the case In the law, the court 1S called upon to achieve a balance between adopting a rigid Interpretation based only upon the plaln ordinary meaning of the words, and adopting a meanIng which wIll carry out the aim and purpose of the parties, as discovered in an objectlve way, from evidence outside the contract. There is no reason In law or lOgIC why the above statement is not applicahle In lnterpreting a collective a~reement Along the same lInes 1S the statement of the court in Canada Square Corp. et ale V. V.S. Services Limited et ale (1982), 34 O.R. (2d) 250 (C.A ) , at p 260 Further, it IS important to consider, as a part of the context of the document, "the gen~sis and a1m of the transaction". (See Cardozo J. in ~ica City Nat. Bank v. Gunn, 118 N.E. 607 (1918), at p. 608, referring to Stephen's Digest of the Law of Evidence and Wigmore on Evidence, quoted with approval by Lord Wilberforce in Prenn v. Simmonds, [1971J 1 W L.R 1381 at p. 1384 ) There are also a number of useful comments concerning the interpretatIon of contracts found1n Buildev Co. Ltd. v. Monarch Construction Ltd. (1990) , 73 O.R (2d) 627 (H C.J ) at pp. 633-4 In the1r submissions before me, both parties agree that the whole contract is to be consIdered in construing the meaning of a word used in a particular clause I accept that it is my task 1n Interpreting a contract to not confine myself to a particular expreSSIon but to collect the intentl.on of the parties from the whole of the contract. -- ;; ." 26 In thus conslder1.ng the whole of the contract, I have kept in mInd the followIng canons of construction 1 The court must not deviate from the literal force of a particular expression if the intention of the part1.es IS clear ly and unequivQcally expre!?sed, rtnless such clear intention lS p I a i n 1 y' controlled or contradl.cted by other parts of the lnstrument (See Chitty on Contracts, A G Guest, ed , 25thed (London Sweet & Maxwell, 1983, vol 1 , at p 521; C E. Odgers, Construction of Deeds and Stctutes, 5th ed (London Sweet & Maxwell, 1967), at p 56 ) Thus, unless the court fl.nds from other parts of the contract expressions which show that the parties could not have hai the l.ntentl.on which the literal force of a particular expression would l.mpute to the pa r't ies, the court l.S bound to give effect to the clear intention expressed in the particular ~ords 2 If apparent conflict exists between a particular expression and other parts of the Instrument, the court should strive to read the repugnant clauses together as to create' harmony, If the interpretat10n does no violence to the meaning to which the words are naturally susceptible If not, then the repugnant part must be rejected in order to gIve effect to the general intent of the parties, as evidenced by the contract as a whole, rather than any partl.cular and jarring language (See G H L Fridman, The Law of Contracts, 2nd ed (Toronto Carswell, 1986) , at p 444; Chitty on Contracts, supra, at p. 521.) 3 Where the intention expressed 1n a particular expression is unclear and equivocal, the court may give effect to the plaIn and clear intention arrived at from the contract itself even if by dOlng so it involved departing from or qualifying particular words used. (See Chitty on Contracts, supra, at p. 524 ) Specifically 1n this case, In constrUIng the language of clause ~ of the joint-venture agreement, I have found it helpful to address the Issue In terms of the following questions ( a ) What 1S the literal meaning of the words used ~n clause ~; (b) Whether there 1S any reason to depart from the literal meanlng of the words in clause .1.1cl; (c) Whether the expressed intention of the parties In clause ~ is clear and unequivocal; (d) whether the clear intention is plainly controlled or contradicted by other parts of the agreement ,~ . 27 (a) The l1teral meanlnq of the words The general rule 1S that the words In a contract are to be given theIr plain, literal and ordinary meanIng rn the absence of amblgu1ty, It is the plain mean1ng that 1S to be adopted in InterpretIng the contract. In a cOITUl1ercial contract the words must be construed In a business fashIon and in accordance wl.th business common sense so as to avoid any Interpretation that would result In a commercial absurdity (See Chitty on Contracts, supra, a,t p. 518, Toronto v. W.H. Hotel Ltd ., [1966] S C R 434, 56 D L R (2d) 539 ) At P 635 the court states The rule that words must be construed 1n their ordinary sense is to be modified only where that meaning would e1ther result in an absurdity or would create some incons1stency with the rest of the contract. (SeeChittv on Contracts, supra, at p 517> In Toronto Railway Company v. Corporat10n of the City of Toronto (1906), 37 S C R 430 (S C C ) ; aff'd, [1907) A.C 315 (P C.), there IS a statement at p 324(A.C.) This clause is the last of a fasciculus [bundle of clauses], of whicH the heading is "Track, &c. , and Railways, " and, as was held In Hammersmith Ry. Co. v. Brand (1) , such a headIng IS to be regarded as giving the key to the interpretation of the clauses ranged under it, unless the wording is inconsistent with such interpretation. cf Bank of Nova Scotia v. MacPherson et at. (1985), 20 D L R. ( 4dl 142 (P.E.I. S.C.A.D.) at p. 144 D1Scussion An examination of the Board's jurisprudence relatlng to the application of the terms of the collective agreement to non- ~ .. 28 seasonal unc'lassif led staff (see the discussion l.n Porter, above) discloses that prior to art 3 15 1 becoming effectlve there were numerous examples where the Union expressed its ongoing ~ncern that management was maintaing some unclassifIed pOSItIons which were fl11ed by long term unclassIfied staff who were carrying out thelr duties and responslbilities in a manner indistinguishable from members of t'he classlfied staff The only apparent dIst1ngulsh1ng feature was said to be the status of the employees Article 3.15 1 was agreed to 1n order to address thIS sltuat1.0n Prior to the parties agreeIng to art 3.15 1, successful grievances filed by members of the non-seasonal unclassified staff / claimin~ a declaration that they had been 1mproperly appointed to the unclassified serV1ce and for an order that they be made part of the classified service could have the effect not only of making the grlevors part of the classified service but also of converting the1r positions to class1fied ones If a gr1evor was unsuccessful, he/she would, at least, stlll expect to be in the unclassified pOSItion he/she occupied, albeit with less security had he/she succeeded If that position had been maintained for many years, the reasonable expectation was that the situation would continue as before If the same employee should now grieve that a position was not be ing posted as required under art 3.15 1 (whIch now appears to be pOSSIble - see Union Grievance, above) , and if the grlevance ---- ~ 29 succeeds, the result would be a posting pursuant to art. 4 1 Should the employee apply for the pos1tion and be unable to grl.eve an all eged violation of art 4 3 1 , he/she would not oIlly be wIthout recourse to challenge the competion, he/she would also likely be without a job, as it would be ~xpected that the positl.on would no longer be filled with~n the unclassif1ed serV1ce It IS permISSIble to consider this background as part of the CIrcumstances surroundlng the introduction of art 3 15 1 ln interpretl.ng that article It 1S also permISSIble to consider the fact that whIle art. 3.15.1 was introduced l.n the immediately preceding collective agreement and became effective on April 1 , 1991, arts A. , 4 1 and 4.4 were only made applicable to "unclassified staff other than seasonal employees" in the current collective agreement The Employer, prior to the effective date of art. 3 15 1, could have chosen to voluntarily convert an unclassified position to a classified one If the pos1t10n was not open to other than members of the classified serVIce, the unclassified employee who had previously performed that work as a member of the non-seasonal unclassified service would not have had a right to apply for the classified position resulting from the conversion If the position was open to members of the non-seasonal unclassified staff, they could not grieve the competition and, the Employer argues, they cannot do so now The issue before us is whether the introduction of art 3 15.1 in the immediately preceding collective agreement, --- ~ " 30 and the lnclusion in art 3 16 of of the collectlve agreement of arts 4 1 and 4 4 as beIng applicable to unclassIfied staff, would allow non-seasonl unclassifIed staff who had applled for a positIon posted pursuant to art 3 15.1 tQ grIeve an alleged violation by the Employer of art 4 3 1. Addlng art 3 15 1 to the collective agreement, and addl.ng arts 4 1 and 4 4 to the art1cles applIcable to non-seasonal unclassified staff by virtue of art 3 16, were clearly intended to increase the rIghts of unclassIfied staff other than seasonal employees, in the same way as adding arts 4 1 and 4 4 to the articles applicable to seasonal employees by VIrtue of art 3 37 was clearly intended to increase the rIghts of seasonal employees Were the rIghts of non-seasonal unclaSSIfIed staff to be no greater than those of seasonal employees to whom arts 4 1 and 4.4 also apply by Vl.rtue of their addition to art 3.37, as counsel for the Employer argues? Art 3 15 1 applles 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 unclassif1ed service that fulfl.ls 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 ln the unclassified service other than seasonal employees is because the "when" IS identified In relation to positions where "there is a - .. 4, 31 continuing need for tQat work to be performed on a full-time basis" and th~s has been the case "for a period of at least two ( 2 ) consecutive years " The SItuatIon would not arise In th~ case . of positions assocIated with seasonal employment Nevertheless, given the literal meaning suggested b1 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 tl1e 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 1S, 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 unc-lassified to classified ones pursuant to the appllcat~on 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 Counsel for the Employer argued that the changes in the agreement referred to conferred real advantages in favour of '* 32 incumbents 1n the converted position They could force the Issue by filing a gr1evance to compel management to post, and could apply for the posted positl.on. Such a subm1ssion overlooks the r.eality of the sItuation The Interpretat10n favoured by the Employer would lead to an anomalous result the very employees to whom the benefits of artJ.cle 3.15 1 seem to be malnly directed are the least benef~ted, and, l.n fact, they face a real potentJ,.al for harm should they ins 1St that the1r posItion be posted wi,thout any rIght to enforce an objective appraIsal In fact, a posting could take place of a position covered by article 3 1.5.1 at the inslstepce of a non-seasonal unclass1fied employee who ~s not performing that job (cf. Union Grievance. above) who would not incur any risk by taking steps to have a positIon posted. \ In the case before us, it was agreed that the Employer's act10ns in posting the vacancies followed complaints f rom the Union that the conditions for converSlon under art 3.15 1 existed. It is not an unreasonable assumptlon that the conversion of positions will follow from complaInts be1ng made to the UnIon by incumbents occupying the unconverted positions The Un10n, in turn, would be expected to pass-on the employee's complaint to management. In the submissions of counsel for the parties, the meaning of art. 3 15 1 is clear However, the meaning each of them derives from the language of that article is manifestly different. When viewed In terms of its purpose and history, and in light of its '.. .. 33 context, the result suggested by counsel for Union 1S more 1n accord with the reasonable expectations of the parties and makes greater Industrial relations sense The ha rm to the incumbents, if the Employer prevaIls, is manifest. The harm to the Employer, if the UnIon preva1ls, is problematic It is to be expe~ted that l.n many cases the Employer will have already applied the prov1sions of art 4.3 1, either because they makes sense if it w1shes to appoInt the best applicant, or because It must do so where claSSIfIed employees are involved in a competit1on All that follows f rom the Union's interpretat10n prevailing is that the Employer may have to defend its choice 1n accordance w1th the objective criteri<:l provided for In art. 4.3.1. As we have noted above 1n the discussion of the law, if the parties had by clear language manifested an intention to restrIct the rights of employees such as the Gr1evor, as suggested by counsel for the Employer, we would have no rIght to ignore their agreement. Where, however, the clarity of language needed for the Employer to prevaIl IS lack1ng, we are left with the need to make a decision as to wh1ch of the possible interpretations open to us ought to prevail In this regard we are able to take into consideration the circumstances surrounding the execution of the current agreement, includ1ng the jurisprudence of the Board We also cannot overlook the fact that the parties chose to add the language "in accordance with Article 4 (Posting and Filling of -- ... ... 34 Vacancies and New Position)." An arbitration board should attempt, wherever possible, to take into account and give meaning to all of the words used by the part~es counsel for the Employer asks"us to regard the portion of art 3 15 1 In brackets as surplus to the article and hence capable of be1ng 19nored on the grounds that It me'rely identifies article 4 by Its heading and lS of no further significance. Viewed in context, and In the light of the I Cl.rcumstances surrounding the executl.on of the agreement, the addition of the bracketed portion of the artIcle can be vIewed as an indIcation by the parties of an 1ntention to grant to unclassified staff other than seasonal employees the right to grieve a vIolat10n of article 4.3.1 when a positIon is posted pursuant to art 3 15.1 In this way the bracketed portion of the art1cle can be gIven meaning and need not be l.gnored As has also been noted in the discussion of the law, headlngs to contractual provisons can serve as aids to interpretation and can affect the meaning of provisions with wh1ch they are associated. Although In the Toronto Railwav case, above referred to, the heading was used to limit the meaning of the provision it headed, there seems to be no reason why it cannot illuminate the meaning of another provision w1th which it is associated It is also significant that prior to the execution of the current collective agreement, arts. 4 1 and 4 4 had not specifically been made applicable to unclassified employees. If the gr1evance had been filed on April 1, 1991 when art 3 15 1 \ .. ';' 35 became effectIve, if the submissIons of counsel for the Employer are val1d, the Grievor would not even have had a right to apply for a posting made pursuant to that article The Grievor could have compelled the postIng, but could not have applied for the posted posl.tion The prev10us agreement provided, 1n art. 3 2, that "Sections 3 3 to 3.16 apply only to unclasslfied staff other than seasonal employees " This would seem to grant to them the right to grIeve a failure by management to post a pOSItIon pursuant to art 3 15 1 And, if the argument of counsel for the Employer IS correct, that would end the matter as the grievor would have exhausted her rights - there being no right to apply for the position or, 1t follows, to grieve the competition. A very strange result, and one that would only be found if the very clearest language was employed In the circumstances, the intention of the part1es to g1ve non-seasonal unclassif1ed employees the right to apply for the position and to grieve the competition after April 1, 1991 and until December 31, 1991 would be found to eXIst for the reasons gIven To hold otherwi'se would be to Ignore all of the factors referred to and find in favour of a mechanical, impractical l.nterpretation Is the result now changed because the parties have, ln the current collective agreement, specifically added arts 4.1 and 4.4 I as provisions also applicable to seasonal and non-seasonal -- .'01 ~ 36 unclassified ~taff? The more compelling interpretation, based on the noted change, is that the parties have g1ven all unclassified staff (seasonal and non~seasonal) the right to apply for positions posted other than pursuant to art 3 15 1 and to the benefits provided by art 4.4 if they are Intervlewed NeIther have been given the right to grieve compet~tions held pursuant to such postings Only non-seasonal unclassified employees retain the right to grIeve a competition conducted pursuant to a posting effected pursuant art. 3 15 1 To accept the interpretatIon of counsel for the Employer would equate the r1ghts of seasonal and non-seasonal unclassifed staff to a position posted pursuant to art. 3.15.1, while imposing on non- seasonal unclassified employees such as the Grievor a detriment 1n I the form of an un<;lcceptable risk that would put them at a real I disadvantage compared to seasonal employees who also apply for such a position The conclusion favoured by counsel for the Employer would also overlook the further circumstances in existence when the current collective agreement was executed. The opportunity for non-season~l unclassified employees such as the Grievor to grieve improper assignment to the unclassified staff had been severely curtailed by the promulgation of OReg. 129/89, being an amendment to s. 6 of Regulation 881, referred to at pp.8-9 of Porter However, the important issue before the Board is whether, as a result of o Reg 129/89 most if not all of the restrictions placed by Beresford on the power to appont to the unclass1fied service have been removed o Reg 129/89 adds a fourth group of employees to the classes of employees that may .. ':;' 37 i I, be appointed pursuant to s 8 of the PublIC Service Act. That I I group is defined as consisting of employees i) who are appointed pursuant to section 8 of the Act, whether or not the duties performed by them are, or" are similar to duties performed by c1vil servants, and Ii) who are not employees that belong to Group 1~ 2, or 3 The parties would have been aware of 0 Reg 129/89 and of the decision In such cases as Porte~ giv1ng a broad 1nterpretatlon of the regulation, thereby reducing the opportun1ty for non-seasonal unclassif1ed employees to gain adml.ssion to the classified serVl.ce by f1ling a gr1evance based on an alleged lmproper assignment, to the unclassified service In these circumstances, it IS d1fflcult to believe that the addItion into the current collective agreement of arts 4 1 and 4.4 as being applicable to unclassified employees was intended to further restrict the rights of non-seasonal unclassified employees to gain advancement into the class1fl.ed service by denying to them a right to file a competition grievance. Such a conclusion would. require the clearest of language I manifesting such an intention. Furthermore, when the part1es agreed in the current agreement to make article 4 1 applicable to employees in the unclassified service, they did so specifically. If It had been their intention not to afford non-seasonal unclassified employees the right to grieve a competition posted pursuant to art 3.15 1, they could have made this clear by referring to art 4 1 Instead, they chose to refer to a requirement under art. 4 while adding the entire title of that article The parties'choice of language 1S more consistent with our interpretation that f1nds employees such as the Grievor to have .. I C_, ! 38 also been given the right to grIeve a competition held in compliance w1th art. 3 15 1 , When a board finds itself In a sltuat~on, as thIS panel of the Board does, where the agreement before it is capable of more than one interpretation, then it ~s open to It to consider the labour relations implications of any interpretatIon. Those ImplicatIons have been described above, and for the reasons given favour the Interpretat10n of the Union In the result, we dismiss the pre11minary objection and hold that the Grievor has the right to grIeve the competition relying upon an alleged violation of art. 4.3.1 In the circumstances, the two alternat1ve submissions made by counsel for the Union, in the event that we allowed the preliminary object10n, do not have to be addressed at this time One of the submissions is based on a violatIon of art A of the collect1ve agreement by the Employer 1n allegedly discriminating against the Grievor on the basis of age in the conduct of the compet1tion, and the other 18 based on the " alleged bad faith manifested by the representatives of the Employer in carrYIng out the competition; the allegation being that the Grievor's supervisor and at least one member of the panel were biased In favour of one of the successful candidates based on their personal relationship with that candidate Further Issue . ,... 39 Counsei for the Un10n also stated that the GrIevor's Unlon steward was In attendance at the hearIng and that the Employer had taken the position that he was not entitled to attend the hearing wIth no loss of pay and no loss of cred1ts as IS provIded for In art. 27 6 3 of the collectl.ve agreement Reference was made to Field, 225/90 etc (Fisher) In the FIeld case, the Issue was "Whether or not a Union Steward {was] entitled to be paid his wages for attendl.ng at the Grievance Settlement Board as an advlsor to counsel on an indl.VIdual grievance " The same Issue is before this panel of the Board The facts 1n the FIeld case are as follows 1 At the relevant tlme the Grlevor was both the Pres1dent and Steward of his OPSEU ,local 2 At the request of the Gr1evor In that particular case (Mr. Young) he attended before the GSB for a hearing into Mr Young's classification grievance. 3 Mr Young's case proceeded on the scheduled day but was settled by the part1es The Grievor did not present the case as outside counsel was hired, however he did participate in the settlement discussiQn and in fact signed the settlement documents on behalf of OPSEU. 4 He was given t1me off without pay by his Ministry to attend the hearing. 5 The Grievor was listed as an authorized steward pursuant to Article 27.6 4. 6 The Union Steward IS involved in the follow1ng procedures, prior Stage One, Stage One, Stage Two, Pre- hearing, Hear1ng and Post-Hear1ng meetings 7 Union Stewards do not attend all hearings, rather it 15 largely up to the Grievor whether or not he wants to have hIS steward attend 8. Neither Grl.evors or Stewards rece1ve summons to witnesses for attendlng hear1ngs . - I C 40 9 At no time 1n the Young grievance did the Board indicate to him that his attendance before the Board was required " In the case before us, we understand that the Gr.l8VOr'S steward was given tIme off without pay to attend the hearing There was no issue taken wIth respect to the fact that the steward was the Grievor's authorized steward rn Fl.eld, neither s1de presented eVIdence nor relied on any past practice and the decIsion rested solely on tbe InterpretatIon of the collectl.ve agreement - The relevant articles 1n the F1eld case, and in the case before us are found 1n art 27, entitled Grievance Procedure, " specifically articles 27 2 2 - 27 6 4 27.2 2 If any compla1nt or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion, it may be processed within an additional ten <10 ) days in the follow1ng manner STAGE ONE 27 3 1 The employee may file a grIevance in writing with his superv1sor The supervl.sor shall gl.ve the grievor his decision In writing within seven (7 ) days of the submission of the grievance STAGE TWO 27 3 2 If the grievance 1S not resolved under Stage One, the employee may submit the grIevance to the Deputy M1nister or hl.s designee within seven ( 7 ) days of the date that he received the decision under Stage One In the event that no decision in wrl.ting is received l.n accordance with the specified time limits in ---.-- . .f" r'-. '-::; 41 stage One, the gr1evor may submit the grievance to the Deputy Minister or his designee w1thin seven (7) days of the date that the superVIsor was required td give his decision in wrIting 1n accordance wIth "Stage One 27 3 3 The Deputy MInister or his designee shall hold a meeting w1th the employee within fifteen ( 15 ) days of the receIpt of the grievance and sha.ll give the grIevor his decision 1n writ1ng within seven ( 7 ) days of the meeting 27 4 If the grIevor IS not satisfIed with the decision of t.he Deputy Ml.nister or hIS desIgnee or 1f he does not rece1ve the decision within the specified t1me the grievor may apply to the Grievance Settlement Board for a hearing of the grievance within fIfteen <15 ) days of the date he received the decision or with1n f1fteen ( 1'5 ) days of the specified time limit for receivl.ng the deCISIon 27.5 The employee, at his opt10n, may be accompan1ed and represented by an employee representative at each stage of the grievance procedure 27.6 1 An employee who 1.8 a grievor or complainant and who makes application for a hearing before the Grievance Settlement Board or the Public Service Labour Relations Tribunal shall be allowed leave-of-absence w1th no loss of pay and with no loss of credits, if required to be in attendance by the Board or Tribunal 27.6 2 An employee who has a grievance and is required to attend meetings at Stage One and Two of the Grievance Procedure shall be given time off with no loss of pay and with no loss of credits to attend such meetings 27 6 3 This section shall also apply to the Union Steward who 1S author1zed to represent the grievor 27 6 4 The Union shall advise the Directors of Human Resources of the affected m1nistries with copies to the Director, Employee Relations Branch, of the Union stewards together with the areas they are authorized to represent, 'e :i I c~ 42 whIch list shall be updated at least every six ( 6 ) months The Board states at p.8 .- Thus it is open for the Board to make an order requiring the attendance of a Union Steward Insofar as the Union 1S the one who reqUIres the ruling, it seems logical to place the onus on the Un10n to request the Board to make such a rul ing The request should be made either at or prior to the f1rst day of the hearing which the steward intends to attend so that the Employer knows ahead of time that it IS going to be asked to pay these wages The Board of course may determine the issue at that time or defer it to a later t1me As the panel hearIng the main grievance is best equipped to determine whose attendance IS necessary, it should obviously be the panel of the GSB hearing the main grIevance who determines the issue of whether or not the Steward's attendance is required. Although there was no evidence g1ven in the case before us, counsel for the Union made a number of assertions concerning the basis for our making the order requested We believe that we ought to defer the determination of th1s issue until we have heard the evidence 1n this case, as only then will we be In a position to determine whether the Steward's attendance was required with1n the meanl.ng of art 27 We shall request that the Registrar schedule the continuation of the hearing and that notification of the hearing be given to the incumbents. Dated at Toronto this 21st day of September, 1993 .- i .~ I ~' 43 '7?l..~~- ~~ ~fi~~~lii.on ?//' I / ~~ ! '-, ~ M O'Toole - Employer Member )