HomeMy WebLinkAbout1992-3479.Dias.95-03-03
~
.. ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
__ GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416)326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396
GSB# 3479/92
OPSEU# 93B221
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Dias)
Grievor
- and -
The Crown in Right of ontario
(Ministry of Revenue) Employer
BEFORE M Gorsky Vice-Chairperson
M Khalid Member
M O'Toole Member
FOR THE 0 Eady
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE M Wilson
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
HEARING September 19, 1994
I
.1
I
J
D E C I S ION
The Grievor, whose date of h1re was August 9, 1965, was
employed 1n the Audit Section of the Employer, class1fied as a
Financial Officer 5, with the position title of Group Leader,
Audit On January 26, 1993, he filed a gr1evance, as follows
I grieve that I was denled an interview and the pos1tion
of Audit Group Manager advertised under File No
RE095/92 I consider myself qualified for the job and
based on the advert1sement I belong to one of the groups
from which applications were specif1cally inv1ted
(visible m1nor1ty) I i
I
The settlement desired was
I be awarded the posit1on of Aud1t Group Manager from the
date the position was filled with full retroact1vity,
benefits and seniority.
On July 14, 1993, Mr K B Cribb1e, Labour Relations I
I
!
Consultant, Human Resources Branch of the Min1stry of Revenue,
wrote to GaV1n Leeb, a Gr1evance Officer for the Union, as follows
(Exhib1t 6)
This will confirm my advice to you after the prehearing
held on July 13, 19993, that the Ministry is still tak1ng
the position that Mr. Dias' grievance is inarbitrable as
it concerns a competition for the Group Manager Audit
position which is a position outside of the bargain1ng
unit
I understand your position to be that the grievance filed
by Mr. Dias alleges discrimination on the basis of one of
the prohibited grounds in the Ontario Human Rights Code
and contrary to Article A of the Collective Agreement
In that regard I understand that you are relying on a I
decision of the Grievance Settlement Board Lumley, I
1n I
G S B # 1257/91 It will be management's pos1t10n that
the grievance as framed is not sufficient to encompass a
claim of discrimination under Article A and S1nce the
issue of discr1mination was not raised until the
prehearing, the Board should not entertain the
allegat10n
l I
- -------
-~
(,
2
If I have misstated your posltion or any of the facts,
please advise at your earliest convenlence
In addltion to the objectlons to arbltrability based on the
two grounds stated ln Exhibit 6, counsel for the Employer also
ralsed a further objection to arbitrability based on a submisslon
that the matter was moot because the Grievor had elected to take
early retlrement and could not be awarded the positlon even if he
was successful on the merits.
The Employer filed the advertisement with respect to the
posltion which the Grievor sought (Exhlbit 3), which had a posting
date of November 19, 1992 and a closing date of December 2, 1992
The body of the posting lS as follows
AUDIT GROUP MANAGER
Financial Administration AM 20
Schedule 6
$53,600 - $66,200 per annum
Join the Ministry of Revenue, Retail Sales Tax Branch,
and manage staff conducting field audlts under the Retail
Sales Tax and the Race Tracks Tax Acts You will
recruit, train and develop performance; provide technlcal
support; resolve complex audit issues.
LOCATION Toronto
QUALIFICATIONS: Management skills and experience in
an auditing environment; ability to provide leadership,
co-ordinate activities and motivate staff; thorough
knowledge of the principles/practices of
accounting/auditlng techniques; successful completion of
CA, CGA or CMA; demonstrated ability to interpret related
tax leglslation; knowledge of computer assisted audit
techniques and use of microcomputer applications; well
developed interpersonal and communication skills
Please submit application/ resume by December 2, 1992 to
FILE RE: 095-92, Ministry of Revenue, Personnel Services
----------- - - - -- -
I - - -. - -
,.
i
I> !
3
Branch, P 0 Box 627, 33 Kl.ng street West, Oshawa,
Ontario L1H 8H5
AREA OF SEARCH Restricted to personnel l.n the Tax
Revenue and Grants Program whose prl.ncl.pal residence .is
within 40 km of, or who are already working at the
Toronto Retal.l Sales Tax office
Counsel for the Union stated that there was another posting
for the same position after Exhibit 3 which was identical to it
except for a statement that applications were specl.fically invited
from "women, visible minorities and [members ofl aboriginal
groups. " Counsel for the Employer dl.d not dl.spute this statement,
although the subsequent posting was neither produced or filed as an I.
I
exhibit
I
I
I
Counsel for the Union stated that the Union had requested that
the Employer furnish it with certain documents l.n the job
competition file which it regarded as being important to the
preparation of its case, which the Employer was said to have
refused to provide. The request for the documents was not further
pressed l.n relation to the Employer's application to have the
matter declared inarbitrable and it was not further dealt with by Ii
I
the Board.
I
The Audit Group Manager Financial Administration AM 20 is I
a I
,
management position and an incumbent supervises Financial Officers
5, who are members of the bargaining unit, along with other
bargaining unl.t employees The significant duties of the Audit
Group Manager relate to reviewing and evaluating field audits
i
I
!
,
l I I
II
- --
..
..
4
conducted by Financial Off1cers Exh1bit 4 1S an organizat1onal
chart that was filed with respect to the "Central Region - Audit
Organization" which shows that there are eight AM 20 Audit Group
Manager pos1tions
The Grievor applied for the posted position 1n December of
1992 and, after being invited for interview, filed his I
not an I
grievance, as above noted. I
\
I
i
On September 12, 1994, Mr Eady, counsel for the Union, wrote I
I
to counsel for the Employer as follows (Exh1bit 5 ) I
I
Re OPSEU (Dias, D. ) and Ministry of Finance I
Bearing Date September 19, 1994 I
OPSEU File No. 93B221. GSB File No. 3479/92 I
With respect to the employer's position that this
gr1evance is inarbitrable because it does not allege a
violation of Article A, I would like to draw your
attent10n to the language in the Statement of Grievance
"I grieve that I was denied an interview and
the position of Audit Group Manager advert1sed
under File No. RE095/92 I consider myself
qualified for the job and based on the
advertisement I belong to one of the groups to
which applications were spec1f1cally 1nvited
(visible minority). "
In my view, and on the face of the grievance, it is clear
that discrimination by the employer was alleged in the
Statement of Grievance
with respect to the particulars requested of any acts
which are alleged to constitute a violation of Article A
of the Collective Agreement, the Union's position is the
following
1 The employers insistence on the requirement for a
professional designation of CA, CGA, CMA had the
discriminatory affect of denying the gr1evor, a
member of a visible minority, an interview
'I
I
. I
- I
5
2 The ins1stence by the employer on the requirement
for professional designations also had the
discr1minatory affect of denying interviews to a
number of otherw1se qualified members of vis1ble
minorit1es
3 That the employer knew or ought to have known that
1tS 1nsistence on candidates having these
professional designations would have I
a I
discriminatory affect aga1nst the grievor and other ,
members of v1sible minorities I
4 Furtherance, for other posit10ns 1n the Ministry,
such as Financial Officer 4 and Financial Officer
5, the professional designat10n has either been
waived or not insisted on by the employer
5. The 1nab1lity or unwillingness of the employer to
wa1ve the professional designation requirement 1n
th1S particular case had the further discriminatory
affect of denying the grievor the opportunity to be
1nterviewed for a position which he had done in the
past.
6 Given that the employer knew that Mr Dias had done
the job in the past, its insistence on the
professional designation was unreasonable and
discr1m1natory
It remains the Union's position that we require you to
produce all documents associated with the competit10n
file in this matter Furthermore, we would request all
documents that led to the decision of management to
insist on the professional designation in this particular
job competitlon Thus, it 1S our posit10n that
management should produce all documentation associated
with the product10n of the job posting for this
particular position
The Union is in agreement that we should proceed w1th the
employer's objections on the 19th Furthermore, we
should also proceed with any argument as to the
production of documents on the same date
Thus, I would propose that we deal with the prelim1nary
matters on the 19th and then schedule any necessary days I
after receiving the GSB's ruling on the preliminary 1
matters I
,
!
I
I
I
j I
'"
-".
6
Objection to Arbitrabllitv Based on the Submisslon That it is
Beyond the Jurisdiction of ThlS Board to Deal Wlth a Grlevance
Relating to a Management Posltion
Reference was made to Ronald Jones, 1525/87 (D. Fraser), dated
April 22, 1988 In that case the grlevance stated
I grieve that I have been improperly and unjustly denied
an opportunity to compete for a job competltlon for WhlCh
I applied within the Ministry of the Attorney General
The employer in Jones raised an objection based on an
allegatlon that the Board lacked jurisisdiction to hear the case
because of "the fact that the competition . . was for a position
excluded from the bargaining unlt as lt was a management position
"
.
In Jones, the employer referred to Cunningham, 279/79
(Joliffe), where a similar lssue was before the Board, and where
the Board agreed that it lacked jurlsdlction, and to Lansey, 419/82
(Weatherill), which followed Cunnlngham.
The position of the union in Jones was that while it
. did not disagree with the submissions respectlng the
foundation of the board's jurisdiction and the results
found in the cases cited as the job had been posted
and advertised as for any other competition, it would not
have been the intention of the parties that there was no
remaining recourse or remedy of any sort (At p.2)
At pp 5-6, the Board in Jones stated
<,
~
7
Article 4 1 therefore provides a procedure which ar1ses
only "when a vacancy occurs in the Classified Service for
a bargaining unit position or a new class1fied position
1S created 1n the barga1ning un1t, " In f1ndl.ng
that this provision had no appll.cat10n to the fil1ng of
a vacancy outside the bargainl.ng unit, the Board 1n the
Cunningham decisl.on noted at p 10 that
"If it had been intended that "vacancy" should i
i
include a vacancy outside the bargainl.ng unit, it
would have been simple to omit (from 4 1) the
limit1ng words "for a bargaining unit position" and
"in the bargaining unit "
We agree with the result in Cunningham. We would brl.efly I,
note in addition that Article 18(2) does not relate to
the before and that Article 18 (1) ,I
1ssue us, reserves :'
other matters to the exclus1ve funct10n of the Employer
Article 18(1) reads 1n the following way
18. - (1) Every collective agreement shall be
deemed to provide that it is the exclusive function
of the employer to manage, which function, without
limiting the generality of the foregol.ng, includes I
the r1ght to determine, r
I
(a) employment, appointment, complement, I
I
organization, assignment, disc1pline, I
dismissal, suspenSlon, work methods and I
procedures, kinds and locations of
equipment and classificatlon of
positions; and
(b) merit system, training and development,
appraisal and superannuation, the
governing principles of which are subject
to reV1.ew by the employer with the
bargaining agent,
and such matters will not be the subject of
collective bargaining nor come wlthl.n the
jurisdiction of a board
We conclude from this simple reVlew that we lack
jurisdlction 1.n the instant case 1.n Vlew of the
submissions before us, which we accept and would note i
aga1.n were largely agreed to We have been invited to
suggest any other remedy to the grievor that may appear i
from our deliberations, but we regret that we are unable I
to do that in view of our role and lack of jurlsdiction
In the result, the grievance is d1.smissed
I
'-
..
8
Reference was also made to Dom1nic Tse, 895/88 ( Samue 1 s ) ,
decided February 7 , 1989, where the grievor appl1ed for the
position of Director of Assessment and Treatment Units, a
management position, and filed two grievances when he was
unsuccessful The Board appl1ed Jones and Cunningham 1n finding
that the grievor had no substantive right with respect to the job
competition and no right to gr1eve As the gr1evor had no
substantive rights, he had no consequent rights to appeal
management's denial of his grievance or to any other remedy under
the collective agreement
Reference was also made to Shelton et al., 520/90 etc
(Dissanayake), decided on October 9, 1990. In Shelton, counsel for
the union (at p. 5) conceded that all of the prior Board cases ran
"directly counter to the union's position . [but submitted] that
[the board] should find all of those decisions to be wrongfully
decided. 11 Counsel for the union in Shelton observed (at pp. 5-6)
that if the Board did
...not assume jurisdictlon, the grlevors would be left with no
remedy . [Counsel also submitted] that there is no room to
interpret art. 4.1 in such manner as to avoid such an unjust
result He contends that a fair result may be achieved by
interpreting the reference to 'bargaining unit' positions in
art 4 1 to be only an 'lnclusive' statement In other words,
we are urged to find that the reference to bargaining unit
positions in art 4.1 does not necessarily exclude other types
of positions
Alternatively . the board should assume jurisdiction under
s 18 ( 1) of the Crown Employees Collective Bargain1ng Act
[because] where the employer exercises a management
function in an unfair or unreasonable manner the board has
jurisdiction
-'
~
9
The Board stated at pp 6-7
Having cons1dered the submissions of the parties, the
Board finds that 1t has no jurisdiction to hear these
gr1evances The decisions cited above set out very clear
and preC1se reasons as to why this Board has no
jur1sdiction relating to a competition for a management I
position We do not propose to repeat those reasons
here. Suffice it to say that we do not find those
dec1sions to be wrongly decided On the contrary we find
them to be eminently correct Therefore we have no
reason or justification to not follow them (Re Blake)
The Board sympathizes with the plight of the grievors who
feel aggrieved by the Employer's actions, but cannot find
a legal forum to litlgate the1r concerns While it may
be tempting to do so this Board has no legal authority to
intervene To do so would be to totally 19nore and over-
step the Board's legal mandate
The Union's response to the Employer's position based on the
above noted objection was that the introduction of art. A.l 1 1nto
the collective agreement had the effect of distinguish1ng it from
those cases relied upon by the Employer. Art A 1 1. 1S as I
follows
There shall be no discrimination practised by reason of
race, ancestry, place of origin, colour, ethnic or1g1n,
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) .
The Union relied upon Lumley, 1257/91 (Gorsky), dated February
23, 1991. In Lumley, the Board, at pp. 50-51, held that the I
I
,
employer's rights under s 18(1)(b) of the Crown Employees
Collect1ve Barga1ning Act with respect to training and development
do not allow it to treat an employee contrary to the provisions of
the Ontario Human Rights Code In the case before us, the Employer
lS prohibited from discriminat1ng against a member of the
,
I
- -- --- -.-. - - --~- _ _ _____~_lJ
"-
10
bargainlng unlt for, among other reasons, race, ancestry, place of
origin, colour, ethic origin, and citizenship.
In Exhibit 5, counsel for the Union stated his view that "
on the face of the grievance, it is clear that discrlminatlon by
the Employer was alleged l.n the statement of grlevance " The
Union, In maklng the above assertlon, must be relying on the
statement ln the grievance that relates to the Grievor's status as
a member of a visible minority " I belong to one of the groups
from WhlCh applicatlons were specif1.cally invited .. There is no
express allegation that the Grievor was discrlmlnated against by
the Employer ln any fashion, let alone contrary to the provisions
of art A 1.1 or of the Human Rights Code (the "Code".l
Given the language of the grlevance, there might be an
implication that the Grievor was alleging that he was qualifled for
the job based on the advertisement and that the Employer had falled
to glve proper consideration to the fact that he was a member of a
vislble minority, belng one of the groups "speclfically invited" to
apply If there is an implication, it is that the Employer failed
to give proper consideration to the language in the posting for the
position relating to lts special lnvltatlon to members of visible
minoritles. As such, the gr1.evance, even assumlng such an
implication, does not allege "discrimination practiced by reason
of" any of the stated grounds in art A 1 1
'" II
II
11 I
be said about the
The most that can nature of the Grievor's
allegations based on hl.S bel.ng a member of a vl.sl.ble ml.nority l.S
that the Employer invited him as a member of such a minority to
apply for the positl.on, and then denl.ed hl.m an 1nterv1ew. That is,
l.t fa1led to honour an alleged commitment to discrl.ml.nate in his
favour To give specl.al consl.deratl.on to, among others, members of
vl.sl.ble minorities That is not the allegation based on the kinds
of discrl.minat1on set-out l.n Exhl.bit 5
Although counsel for the Union , in Exhibit 5, refers to the
,
grievance be1ng clear in alleging "discrimination by the employer," I
I
!
we take h1m to mean discrimination contrary to the prOVl.Sl.ons of
art A 1 1 or of the Human Rights Code, as it is only this form of i
I
discrimination that could assist the in !
Grl.evor challengl.ng the
decl.sl.on of the Employer, given that the position that he applied
for was a management position whl.ch l.S outside of the bargaining
unit
I'
There is no suggestion that the Grl.evor specifl.cally ral.sed an ,
i
I
alleged violation of the provisions of art A.1.1 or of the Human I
I
Rl.ghts Code w1th any representative of management until the pre-
hearing held on July 13, 1993, and we cannot read the language of
the grl.evance in the manner suggested by counsel for the Union. We I
I
I
were 1nformed that there was no stage 2 meeting as provided for
under the collective agreement, and there was no suggestion that
II I
"
'i
12
the Grievor's supervisor had been g1ven any information other than
as 1S stated 1n the grievance at stage 1
We agree that a Board should not be overly technical 1n ruling
as to the real nature of a grlevance At the same time, a gr1evor
should not be perm1tted to expand upon his/her gr1evance and create
a new one, merely because, on reflection, it is now concluded that
another ground that was not part of the original gr1evance should
now be raised Nevertheless, without deciding the sufficiency of
the allegat10ns of discrimination, we will, for the sake of dealing
with the objection, assume that the Union can rely on the
allegations as set out in its statement of particulars
In the absence of the introduction of art A.l 1, we would
have followed the previous jurisprudence of the Board Is a
different conclusion called for on the facts of this case?
We are not here dealing with a case where we could review the
Employer's compllance with the prov1sions of art. 4 3.1 of the
collective agreement The additlon of art A 1 1 dld not have the
effect of allowing the Board to review the filling of a vacancy in
I a management position in accordance with the requirements of art
I
I 4 3 1 At most, the introduction of art A.1 1 would allow the
I Board to ascertain whether the Employer had, l.n the course of
I filling a management position as a result of a postlng, violated
I
the provislons of art A 1 1 This is quite a different thing from
c.
.
13
treatlng the management positlon as if it were subject to the
prOV1Slons of art 4 3.1. If a violatlon of art A 1 1 has been
alleged in the grievance, and if we have jurisdictlon to apply that
artlcle to a competition for a management positlon, then our
consideration of the qualifications of the Grievor would be in the
context of reviewing the actions of the Employer to see if they
were discrlmlnatory as defined in art A 1 1
"
"
"
I
Five of the six statements of particulars contalned in Exhibit
5 relate to the Grlevor's having allegedly suffered adverse impact
discrimination because he did not have the professional designation
of CA, CGA, CMA required under the posting (Exhlbit 3 )
The Employer relied on a series of Board cases, referred to
above, which have uniformly held that the provisions of art 4 3 of
the collective agreement that deals with the responsiblllty of
management ln assessing candidates ln a competition for a
bargainlng unit position have no application when the competitlon
is with respect to a position outside of the bargaining unit
The UnJ.on argues that the cases relied upon by the Employer
are no longer relevant to the adjudication of this case because of
the introduction of art A.1 1 into the collective agreement This
article, it was submitted, furnishes a grievor with a rlght to
grieve a violation of art A 1 1 even where the alleged
dlscrimination relates to a competition for a position outslde of
I I
j
---
..
~
the barga1ning un1t and where the right to gr1eve is not dependent
on an allegation that management has fa1led 1n its obligat1on to
conduct a competition in accordance with the requirements inherent
1n art 4 3
In order to assess the valid1ty of the Union's posit1on, l.t is
necessary to cons1der the effect of the introduct1on of art A 1 1
into the collective agreement. It cannot be said that the
1ntroduction of that article allowed the Board for the first t1me
to interpret and rely on the Code As a statute of general
application, the Code must be obeyed Where an employer's actions
are in v~olation of the Code, arbitrators are empowered to declare
that such actions are 11legal This was the law prior to the
1ntroduction of art. A.1 1. since McLeod et al. v. Egan et al.
(1974), 46 D L R (3rd) 150, [1975J 1 s C.R. 517, 5 L A.C (2nd)
336 sub. nom. Re USW 2894 and Galt Metal Industries 74 C.L.L C
para 14,220, it has been recognized that arbitrators may declare
actions of an employer contrary to a statute of general appl1cation
to be illegal
In Re Wentworth County Board of Education (1984) 14 LAC
(3rd) 310 ( Dev I in) , the arbitrator reviewed the effect of the
McLeod case at pp 322-323 and noted
Can it be assumed that in negotiat1ng the collective
agreement the parties intended that either one or the
other could carry out its rights and obligations 1n a
manner contrary to public policy or contrary to a public
statute The answer must be in the negative
At p 325 of the Wentworth case, the board stated
I
I
I II
r' ,
~
15
i
Whlle the collective agreement glves to management the 1
right to assign job duties within a classification, that I
I
right was carried out in a manner which was
discriminatory and which denied the grievor equal
treatment because of her physl.cal handlcap In I
consequence, that rl.ght was exercl.sed in a manner whl.ch II
l.S contrary to publl.c POllCY as enuncl.ated l.n the Human
Rights Code, 1981 ,
The application of McLeod and Egan to cases properly before i
this Board is not now in doubt, and the obligation of the Employer I
not to violate statutes of general application in carrying out its I
I
rl.ghts under the collective agreement continues to be ,I
recognl.zed,
"
as can be seen from the recent Board case of Armes, 123/93 (B i
Kaplan) , where the Board stated at p 14 I'
Obviously, had we found that the [employer] was requiring
the grl.evor to vl.olate any statute we would have almost
certainly upheld the grievance
In Pitirri, 1685/92 etc (W. Kaplan) , one of the cases rell.ed
upon by the Unlon, reference was made to Kimmel/Leaf, 1391/90 etc i
(W Kaplan) At pp. 51-52 of Kimmel/Leaf, the Board acknowledged !
the effect of McLeod v. Egan on arbitrators, including panels of
this Board What art A 1 1 achieved was to incorporate the Code
l.nto the collective agreement so that a vl.olatl.on of the Code ln 1
i
the context of the collective agreement would enable the Board to
I
apply Code remedies ln the course of adjudicating a grievance I
properly before it At pp 51-52 of Kimmel/Leaf, the Board stated I
i
has long established that ,!
It been arbitrators may use :1
legislative enactments, such as the Ontario Human Rl.ghts
Code, to aSSl.st l.n the construction of collectlve I
agreements (McLeod v. Egan (1974) 46 o L R ( 3d) 150) 1
In the instant case, there lS no issue of conflict
between a statute and the collective agreement Article
I I
I
I
I
I
- .-----
""
.
16
A does not, however, contain any express duty to
accommodate to the point of undue hardship such as that
found ~n section 10(2) of the Code Nevertheless, such
a duty can and must be inferred in th~s case ~n the same
way that it has been ~nferred by the Supreme Court of
Canada ~n other cases such as Alberta Human Rights
Commiss~on v. Central Alberta Dairy Pool (1990) 72 D L R
(4th) 417 Not only ~s ~t the law of the land, but
absent such a duty what would be the point of Art~cle A?
One can assume that th1S prOV1S10n was ~ntended to mean
something, and the only way it can mean much 1S if the
prohib1tion on discrim~nation carries wl.th it a remedy
when such discrimination has been established In this
regard, the Ontar10 Human Rights Code, setting out the
law and publ~c policy in Ontar10 provl.des an important
aid to the interpretation of Article A (see also the
Preamble to the Code)
In the same way Canadian courts have repeatedly
sanctioned a purposl.ve approach to discriminatl.on that
broadly interprets human rights laws so as to ellminate
discrimination and provide meaningful relief, Artlcle A
of the Collective Agreement should also be 1nterpreted
In reachlng this conclusion we are merely giving effect
to the agreement reached by the parties. . .
None of the cases filed by the Employer 1n support of its
position that the Board lacked jurisdictlon to adjudicate a
grievance arising out of a competition with respect to a management
pos1t10n dealt with a situation where the grievor had alleged a
v10lat10n of the Code so as to bring into play the pre-art A.1.1.
jurisprudence
If in the course of conducting a competition w~th respect to
a bargaining unit position, the Employer had allegedly violated the
provisions of the Code by doing what the Union alleges in this
case, its actions could have been declared to be invalid prior to
the introduction of art A 1 1 As was observed 1n Kimmel/Leaf,
the effect of art A 1 1 was to allow the Board to utilize Code
I ' II
I
.'
17
remedies that would, heretofore, only be capable of enforcement by
a board of inquiry appointed under the Code
What would be the result, emploYlng a scenarlO where the
competition was with respect to a management position Prlor to the
I
introductlon of art A 1.1, unlike the bargainlng unit scenario, I
the Board would have no jurisdlctlon to find and declare that the
I
I
Employer's identical actlon was in vlolatlon of the Code and hence !
of no force or effect That could only be done by a board of
lnquiry appo1nted under the Code, the competitlon being outside of
the purVlew of the collective agreement The affected employee
would not, however, be depr1ved of a remedy as he or she would
still be able to challenge the employer's action by fil1ng a
complaint under the ~
I
II
None of the cases relled upon by the Union in support of its
position that art A 1 1 applied to a pos1tion outside of the
bargaining unit dealt with such a situation.
In Lumley, 1257/91 (Gorsky) , the grievor had been denied an
I
interview with respect to a management developmental ass1gnment.
However, 1n that case, although the ass1gnment was offered to
bargaln1ng unit personnel, it was in no way a competition with
respect to an appointment that would take the grievor out of the
barga1nlng unit into a management position, as is the case in the
matter before us In Lumley, there was no evidence to indlcate
I I
- --.--- /I
'. I
j
18
that the successful candidate 1.n the management development
assignment competition would cease to be a member of the bargaining
unit when on such assignment
In Pitirr1., 1685/92 etc (W Kaplan) the issue related to the
union's request not only to have the Board find that there was a
violation of art. A 1 1 but to accommodate his hand1.cap as 1.t
related to a bargaining unit position.
Counsel for the union also relied on Merson, 16/93 etc (Gray)
and Chircop, 3039/92 (Kaufman) which followed Pitirr1.
The Grievor 1.n Merson was an unclassified employee who had
been employed on a series of S1.X month contracts Prior to his
contract expiring on March 31, 1993, he was informed, at a meet1.ng
on February 14, 1993, that his contract would only be renewed for
three months. The grievor gr1.eved on February 26, 1993, among
other things, that he was being discriminated against by being
placed on a three month contract
On June 22, 1993, the employer's representative adv1.sed the
grievor that his unclassified contract, which was to expire on June
30, 1993, would not be renewed On June 28, 1993, the grievor
grieved the decision not to renew h1.s contract, the position taken
by the un1.on being that the decision was made because of the
grievor's hav1.ng been injured and havingng filed a Workers'
I
I
I II
~". I
I
I
. .1
19 i
1
Compensation claim in October of 1992, and also because he had I
I
I
i
flIed two earl1er grievances The employer raised an objection
that the matter was not arbitrable because under s 18 of the Crown
Employees' Collective Bargaining Act R S 0 1990 c C 50
( "CECBA" ) , the dec1sion to appoint was an exclus1ve funct10n of
management
Among the cases relied upon by the employer in Pit1rr1 was
ShiJ2lgy, 223/86 (Samuels), where the Board observed at p. 4 and
later at pp 9-10
. this 1S not a case involving a violation of the
collective agreement The grievor does have rights under
the collective agreement, pursuant to Art1cle 3 and other
provisions, but these rights apply to him only while he
is a member of the unclassified staff. The employer did
not breach any rights which the gr1evor had during the
grievor's term of employment The substance of the
grievor's complaint 1S that he d1d not have employment
after the term of his contract expired. But he had no
contractual right to renewal and there was no violation
of his contractual rights during his term of employment
Counsel for the Union before us argued that the situation
1S different when we know that but for the employer's
adherence to the policy (which 1t 1S argued 1S lllegal
because it is contrary to the Ontar1o Human rights Code
1981) , the grievor would have been renewed. With
respect, we don't [sic] see how that changes the
situation. Even if we were to decide that the POl1CY is
1llegal, we cannot get around the fundamental point that
the grievor had no contractual r1ght to renewal There
has been no violation of any contractual right
It may be that there has been a violation of the Human II
I
Rights Code (but we emphasize that we are making no such
find1ng) , in which case the proper forum for the grievor
1S the Ontar1o Human R1ghts Commission. It 1S the body
which 1S empowered to investigate and make findings
concern1ng breaches of the Code
I j
- ---- I
--
"
I
20
After referring to art A 1 1, the Board ~n Merson purported
to d~stingu~sh Sh~plev because it arose "before the parties
~ntroduced art A into their collect~ve agreement "
In Merson, the grievance was found to be arbitrable to the
extent that it alleged breaches of art A to impugn decisions that
led to the grievances before the Board. It ~s clear from the
language employed by the Board (at p 9) that while it m~ght not
grant the grievor a remedy if the un~on merely proved that the
employer's decision involved filing grievances or some other form
of bad faith which did not amount to discrimination under art. A,
1t would do so (which decision was consistent with K1mmel/Leaf) if
it found discrim1nation contrary to art A It is s~gnificant that
the decision of management which was the subject of the grievance
was one w~thin the four corners of the collective agreement There
1S nothing in the decisions in Merson or Pitirri to ~ndicate that
an allegat~on of discrimination contrary to art A would permit the
Board to assume jurisd~ction where the alleged discrimination was
with respect to a compet1t1on for a management pos~tion, being
outside of the ambit of the collective agreement.
In Kimmel/Leaf, the Board, at pp 51-2 (L,A C 159) concluded
that it should take a purposive approach to the interpretat10n of
art. A, and it decided that the art1cle was 1ntroduced for the
purpose of enabling the Board to go beyond grant1ng declaratory
relief In deciding that art A was concerned with giv1ng the
~-II
, ,
~
21
Board jurisdlction to grant certaln Code remedies, the Board noted,
1b1d. , that prior to the 1ntroduct1on of art A, McLeod v. Egan had
furn1shed a bas1s for uSlng the Code where 1t conflicted with the
collect1ve agreement
It 1S slgnificant that 1n Merson the alleged violat1on was
said to have occured "while the [grievor] was still employed and
covered by the collect1ve agreement " Th1S was also the
f1ndlng in Chircop, at p 19
We do not find the reference to Shipley to be helpful The i
I
Board there did not squarely address its jur1sdiction, based on the ,
application of McLeod v. Egan, to declare the policy that allegedly
led to the failure to reapoint the gr1evor to the unclassified
service to be 111egal because 1t v10lated the Code. It merely found
that lt had no juriduction to find breaches of the Code (at p. 10)
From a practlcal point of view the Board in Shipley recognlzed that
1n the absence of a provision giving it the right to require the
employer to renew a grievor's contract a mere declaration that the
employer's action was illegal would not furnish the redress sought
As we view the matter, if the Board had addressed lts rlghts based
on McLeo~ and Egan, and the cases that followed it, it could have
found the action of the employer to be illegal even if it lacked
the jurisdlction to grant a remedy. This lnterpretation lS
consistent with Kimmel/Leaf's interpretation of the purpose of art
I
I
!
- -- -- -...-- I j
...
'I
22
A, followed in Pitirri, which was, ln turn, followed in Merson and
Chirco~
Chlrcop, 3039/92 (Kaufman) also concerns the case of an
unclasslfled employee whose last appointment explred and was not
renewed. The grievance referred to ln that case that here concerns
the Board was dated August 28, 1992, and claimed, among other
things " . . wrongful dismissal, discrimination, harassment and
intimldation. " The employer took the position that the grlevor
ceased to be a public servant on the date his last contract ended
and that the Board had no jurisdiction to assume over any complaint
presented by him. The employer submitted that the Board had no
jurisdiction to review the expiration of or reasons behlnd the non-
renewal of the appointment to the unclassified service The unlon,
relying on Pitirri and Merson, argued that the dismissal grievance
alleged discrimination and the Board could assume jurisdictlon to
hear the grlevance on ltS merits
In ChlrCOp, the Board noted, at pp 17-18, that the acceptance
of jurisdiction by the board in Pitirri was based on the fact that
the grievor was there treated as having remained an unclassified
employee and "therefore [tol have retained the status to grieve the
employer's conduct under Art. A " We note that in Shipley, the
grievor was not so regarded
-- ---- -
I ~'I
\
23
At P 18 of Chircop, the Board not~ced that ~n Merson, the
Board also found that "but for the discrim~nat~on, the gr~evor's
contract would have been renewed. The un~on argued that the
decision not to renew the gr~evor's 6-mo contract was made while
the gr~evor was still employed and covered by the collect~ve
agreement, and that the employer's decision constituted
discrimination contrary to Art A of the collect1ve agreement II "
,
,
II
I
The Board in Chircop followed both Pit~rrl and Merson :
I ,
What differentiates the cases relied upon by the Union and
this case 1S that they dealt with a purported exercise of
discret10n w~th respect to pos~t10ns clearly within the barga1n1ng I
I
I
un~t where the Board, while ~t could have declared the exercise of I
,
I
the discret~on ~nval~d as being in conflict with the Code prior to I
!
the introduction of art. A, could not have granted an effective
remedy as provided for in the Code.
Our conclusion in no way deprives a grievor who has applied
for a management position of the protection of the Code It merely
f1nds that art. A was not introduced with the pupose of br1ng1ng
certain management decisions with respect to positions outside of
the collective agreement within it.
Accordingly, for all of the above reasons, the preliminary i
I
object1on is allowed and the gr1evance is declared to be
I I
-- -- --- .-- I,
<<. .
-;
l
I
24
lnarbitrable Because of our hav1ng found that we have no I
jurlsdlction to adjudicate a grievance based on an alleged
violation of art A 1.1 by the Employer 1n the course of
adminlstering a competition for a management pos1t10n, lt lS
unnecessary for us to rule on the other objections raised.
I
Dated at Toronto, this 3rdday of March, 1995.
-1rl.e~
M R Gorsky - Vlce-Chair
R ~nr~~~/
M Khalid - Member
111 f ())7~
M. O'Toole - Member