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Home My WebLink About1993-1068.George et al.99-10-06 Decision o NTARW EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARW GRIEVANCE COMMISSION DE .11 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 Dr 'VDAS STREET WEST SL'iTE 600, TORONTO ON M5G 1Z8 TELEPHONETELEI'HONE. (416) 26-1,88 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G IZ8 FACSIMILE/TELECOPIE. (416) 326-1396 GSB # 1068/93 1069/93 OPSEU # 93E295 93E296 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (George et al) Grievor - and - The Crown In RIght of Ontano (Royal CIty Ambulance ServIces) Employer BEFORE Ken Petryshen Vice Chair FOR THE Andrew PInto GRIEVOR Barnster & SOlICItor FOR THE DavId Damels EMPLOYER Counsel, Mathews, DInsdale & Clark Barnsters & SOlICItorS HEARING Apnl 12, 1999 2 DECISION In a gnevance dated June 30 1993 Ms Michelle George claims that she was not offered a full-tIme posItIOn In Fergus contrary to ArtIcle 1504 of the CollectIve Agreement. In a gnevance dated June 28 1993 Mr Dean Neumann makes the same claim Mr Jeff George, a steward, filed a UnIon gnevance relatIng to the same CIrcumstances In whIch he asserts that the Employer dId not follow the "Inter-bargaInIng UnIt postIng method" for the full-tIme posItIOn In Fergus posted Apnl 28 1993 These gnevances were dealt wIth as part of the med-arb backlog process The Employer operates ambulance servIces In Guelph and In Fergus and It employs full-tIme and part-tIme ambulance attendants at each locatIOn, Each locatIOn IS covered by a separate collectIve agreement. A vacancy was created In Fergus when a full-tIme employee, K. Bala, went to Cambndge, caUSIng the Employer to post a full-tIme ambulance attendant posItIOn on Apnl 28 1993 WithIn fourteen days of the postIng, Mr Neumann and Ms George, each a full-tIme ambulance attendant In Guelph, applIed for the vacant posItIOn, Two part-tIme employees and a person who was not employed by the Employer also expressed an Interest In the Fergus vacancy Because the two full-tIme employees at Guelph applIed and because of the Interest In the posItIOn from others, the Employer decIded that It would test all those Interested In the posItIOn, The testIng process was carned out by an Independent organIZatIOn, In the Employer's VIew such testIng would provIde an ObjectIve assessment of the relatIve skIlls of the applIcants 3 After the passage of the fourteen days from the date of the postmg, Ms George and Mr Neumann wIthdrew theIr applIcatIOns They dId thIS based on a perceptIOn that the Employer was gIvmg consIderatIOn to a part-tIme applIcatIOn and because of the reqUIrement that they be tested, By the tIme the testmg was conducted and the decIsIOn made as to whom would fill the vacancy the applIcatIOns from Ms George and Mr Neumann had been wIthdrawn, The Employer filled the posItIOn WIth G Bala, a part- tIme employee m Fergus and a brother ofK. Bala, The relevant part of ArtIcle 15 04 provIdes as follows In the case of promotIOns (other than for promotIOns to posItIOns outsIde the bargammg umts) and demotIOns (other than dIscIplInary demotIOns) and m all cases of mcrease and decrease of the number of employees wIthm the bargammg umt the followmg factors shall be consIdered (a) abIlIty and qualIficatIOns as determmed by the employer (b) semonty Where m the opmIOn of the employer the factors m (a) are relatIvely equal, factor (b) semonty shall govern, Where a Job vacancy occurs the vacancy shall be posted at all Royal CIty Ambulance bases for a penod of fourteen (14) calendar days Dunng the first fourteen (14) days, only applIcatIOns from full-tIme employees wIll be consIdered, If at the end of the fourteen (14) day penod no full-tIme employee has expressed mterest m the postmg, then consIderatIOn wIll be gIven to part-tIme applIcants IfwIthm a penod of twenty-one (21) days no applIcant sUItable to management IS hIred for the posItIOn, It wIll be filled from outsIde the company The mter-bargammg umt postmg method wIll contmue only as long as Royal CIty Ambulance ServIce Ltd, owns and operates more than one base of operatIOn, Subject to the terms of thIS artIcle, (i e 15 04-a) the appomtment to fill a Job vacancy wIll be made from the candIdates wIth the greatest semonty m the bargammg umt. It IS understood that semonty of part-tIme employees wIll be calculated on the basIs of an accumulatIOn of hours 4 worked, Each SIX (6) months the semonty lIst wIll be revIsed to show any changes The Umon argued that the wordIng of ArtIcle 1504 suggests that the Employer cannot test employees In CIrcumstances where full-tIme ambulance attendants from one locatIOn apply for the same Job at another locatIOn, The Umon also argued that the Employer was oblIged to select one of the full-tIme applIcants wIthIn the fourteen day penod and that It could not gIve any consIderatIOn to other applIcants dunng thIS penod of tIme GIven the passage of tIme, the Umon dId not request that the Employer be dIrected to offer one of the gnevor's a full-tIme posItIOn In Fergus Instead, the Umon sought a declaratIOn that the Employer contravened ArtIcle 15 04 and a monetary award of$1 00000 In assertIng that there had been no vIOlatIOn of the CollectIve Agreement, the Employer submItted that ArtIcle 15 04 dId not preclude testIng, The Employer maIntaIned that ArtIcle 15 04 was Intended to first gIve full-tIme employees the opportumty to fill a vacancy and that It dId nothIng here whIch was InCOnsIstent WIth that oblIgatIOn, SInce It determIned that testIng was appropnate, the Employer decIded to test all those who expressed an Interest In the posItIOn and It was not possible to have the testIng done wIthIn the fourteen day penod, In the Employer's VIew the vacancy would have been filled by one of the full-tIme applIcants, lIkely by Mr Neumann, the semor full-tIme applIcant, but for the wIthdrawal of the full-tIme applIcatIOns The Employer submItted that by wIthdrawIng from the process, the gnevors cannot complaIn that one of them was not selected to fill the vacancy The Employer also argued that there IS no basIs 5 for a monetary award, even If a contraventIOn of the CollectIve Agreement had been establIshed, Although I have some dIfficulty In appreciatIng why the Employer would find It necessary to test applIcants In these cIrcumstances, ArtIcle 15 04 does not preclude testIng, Where there IS more than one applIcant for a vacancy as was the case here, ArtIcle 15 04 contemplates that the Employer wIll have to determIne whether the applIcants are relatIvely equal Although the Umon argued to the contrary that part of ArtIcle 1504 whIch states "Subject to the terms of thIS ArtIcle (ie 15 04-a)" clearly suggests that the Employer IS reqUIred to Judge the relatIve equalIty of the candIdates Where such a reqUIrement eXIsts, It IS dIfficult to argue wIth an approach whereby such a Judgment would be made on an ObjectIve basIs, through testIng, AccordIngly I am left to conclude that Employer's decIsIOn to test applIcants IS not InCOnsIstent WIth ArtIcle 1504 of the CollectIve Agreement. The Inter-bargaInIng umt postIng method IS structured to gIve a preference to full- tIme employee applIcants It does not preclude other employees from applYIng for the vacancy The purpose of the fourteen day penod IS to allow full-tIme employees to apply for the vacancy Once a full-tIme employee expresses a tImely Interest In the vacancy no consIderatIOn should be gIven to part-tIme applIcants untIl a decIsIOn IS made as to whether any full-tIme applIcant IS entItled to fill the vacancy SInce the testIng could only be scheduled after the fourteen day penod, the Employer made ItS decIsIOn after the fourteen day penod elapsed, However the language In ArtIcle 15 04 does not provIde, 6 eIther explIcItly or ImplIcItly that the Employer has to decIde whIch full-tIme applIcant wIll fill the vacancy wIthIn the fourteen day penod, When It makes Its deCISIOn, the Employer must gIve preference to any full-tIme applIcant. The Employer does not dIspute thIS oblIgatIOn, Although Ms George and Mr Neumann felt that the Employer faIled to meet thIS oblIgatIOn, what the Employer dId here was not necessanly InCOnsIstent WIth ItS oblIgatIOn under the CollectIve Agreement. By wIthdrawIng theIr applIcatIOns before the Employer made ItS deCISIOn, Ms George and Mr Neumann created a sItuatIOn where there was no longer a full-tIme employee applIcatIOn to whIch the Employer had to gIve a preference The Employer was then entItled to consIder any part-tIme applIcant. From the eVIdence before me, It appears that the Employer would have been reqUIred to select the semor of the two full-tIme applIcants for the vacant posItIOn, The Employer asserts that the only reason thIS dId not happen was because of the decIsIOn of the two gnevors to wIthdraw theIr applIcatIOns In these cIrcumstances, I am unable to conclude that the Employer has contravened the CollectIve Agreement as alleged, AccordIngly the gnevances are dIsmIssed, Dated at Toronto thIS 6th day of October 1999 .. Ken Petryshen, Vice-Chair