HomeMy WebLinkAbout1994-0097.Harris.95-09-14
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARlO
1111 GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-
GSB # 97/94
OPSEU # 94A540
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Harris-Bernard)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Labour)
Employer
BEFORE R J Roberts Vice-Chairperson
FOR THE M A Kuntz
GRIEVOR Grievance Officer
Ontario Public service Employees Union
FOR THE B Loewen
EMPLOYER Counsel
Legal Services Branch
Management Board Secretariat
FOR THE H Rolph
THIRD PARTY Counsel
McMillan, Binch
Barristers & Solicitors
HEARING May 29, 1995
September 8, 1995
1
AWARD
ThIS IS a umque arbItratIOn case that, It seems, turns on ItS specIfic facts The gnevor essentially
claImed that her nghts under the collectIve agreement were adversely affected when the
employer chose, for all mtents and purposes, to treat two separate Job postmgs as one ThIS
meant, the gnevor claimed, that the successful mcumbent was treated as If she was an applIcant
elIgIble for the second competItIOn when she was not, and thIS resulted, It was submItted, m the
gnevor bemg demed the pOSItIOn. Both the employer and the successful mcumbent submItted
that there was no breach of the collectIve agreement, partIcularly smce there was nothmg m the
Job postmg prOVISIOns of the agreement suggestmg that the employer was oblIged to conduct Job
competItIOns m the order m WhICh they were posted. For reasons whIch follow, It IS concluded
that there was a breach of the collectIve agreement and, accordmgly, the gnevance must succeed.
The relevant facts of the case were presented m an agreed statement of facts, whIch reads as
follows
Ms Hams-Bernard has been employed WIth the Mmlstrv smce Januarv 1 1990 and at the time
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of this gnevance (February 11 1994) was employed as a Wage Assessment Clerk. (OAG 9) In the
Scarborough office SInce October 1994 she has been seconded for developmental purposes to
an ESA 2 posItIOn In an underfill capacity at the ESA 1 wage rate
The gnevance alleges a breach of artIcle 4 of the collective agreement In respect of four
competitIOns held by the MmIstry for mne Employment Standards AudItor 2 pOSitIOns,
specifically the competItIOn numbers were
- L B 037-9307, L B 038-9307 flowmg from an mItIal postmg dated October 14,
1993 for four positIOns (three Scarborough and one Edward Street), and
- L B 100-9311 and L B 101-9311 flowmg from a second postmg dated
November 17, 1993 for five posItIons (three Scarborough and two Edward Street)
The partIes agree that the MImstry WIthdrew the mnth pOSItIOn and assIgned the salary dollars to
create an OAG 9 pOSItIOn of Intake clerk to WhICh a Ms Lee Slrangelo was assIgned pursuant to
article 24 of the collective agreement In December 1993 Ms Slrangelo had been gIVen her
surplus notice In November 1993
The parties acknowledge that the deCISion to Withdraw one posltlon was made well In advance of
the testmg and IntervIew process and further, that thiS decIsIOn was not commumcated to the
candidates at any tIme pnor to the IntervIews In January 1994
.,
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The partIes acknowledge that ongInally there were three gnevors challengIng the outcome of
these competItIons they were, P Hams-Bernard, J McPherson and M Allossery Both Ms
McPherson and Ms. Alossery have subsequently competed successfully for ESA 2 posItIOns and
have wIthdrawn theIr gnevances Both Ms Allossery and Ms McPherson had secondments (on a
developmental basIs) to an ESA 2 posItIOn pnor to the competItIons In whIch they were
successful
The partIes agree that the MInIStry conducted a sIngle set of mtervlews and tests on January 24
and 25, 1994 m respect of both po stIngs. Ms McPherson was also IntervIewed at a later date and
was ranked tenth among the competItors
The partIes agree that a total of thIrteen persons receIved mtervIews and were tested. Among
those IntervIewed was Ms Susan GoodWIn, who was employed WIth the MInIStry from January
6, 1992-November 5, 1993 m a contract pOSItIOn as an OAG 9 and who has been served thIrd
party notIce In respect of these proceedIngs
The partIes agree that Susan Goodwm, the Incumbent who ranked seventh In the competItIon
process, was not employed by the MInIstry dunng the second postIng penod November 17,
1993-November 30, 1993
The partIes agree that Ms Goodwm applIed for the postIng dated October 14 1993 InvolVIng
competItIOn numbers L B 037-9307 and L B 038-9307
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By letter dated November 18 1993 Ms Goodwm applIed for the postmg dated November 17,
1993 Bv letter dated December 7, 1993, ElIzabeth DaIley, on behalf of the MInIstry advIsed Ms
Goodwm that she was not elIgIble to be consIdered for that competItIOn.
The partIes agree that letters confirmmg the offers of employment were sent to the top eIght
candIdates wIth specIfic reference to the competItIOn numbers as follows
RANK CANDIDATE COMPETITION NO
I Dananna WynnckYJ LB 101-9311
2 Anthony PIerre LB 100-9311
..., Ralph Gaw1ma LB101-9311
.J
4 Barbara Uysal LB 100-9311
5 Max De Sousa LB 037-9307
6 Nolan Sukhedo LB 100-9311
7 Susan Goodwm LB 038-9307
8 Gerry Lalonde LB 037-9307
The partIes agree that Ms Allossery, Ms McPherson, and Ms Hams-Bernard ranked mnth,
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tenth and eleventh respectively and that their marks, rangmg from 85 to 89 were "relatlvelv
equal" Further It IS agreed that, had the mnth posItIOn bemg filled from among the candIdates
mtervIewed, Ms McPherson would have acceeded to that posItIOn smce she had more semontv
than eIther of Ms. Hams-Bernard or Ms. Allossery
Dunng the course of the heanng, It was conceded on the part of the employer that the
declsIon-makmg process, lIke the mtervIewmg and testmg of the candIdates, was melded mto
one Counsel for the mtervenor, however, refused to Jom m makmg thIS conceSSIOn. It was
submItted on behalf of the mtervenor that the facts dId not estabhsh whether the selectIOn process
for both postmgs was conducted at the same tIme or, mdeed, whether the selectIOn for the second
postmg was made first. ThIs was Important, counsel for the mtervenor suggested, because If the
selectIOn for the second postmg was made first, the mtervenor would have bemg successful over
the gnevor 10 any event.
The reason for thIS, counsel explamed, was that there was consIderable overlap between the
candIdates 10 the competItIOns for the two postmgs If the top candIdates had been aSSIgned
pOSItIons from the second postmg, they would have been elImmated from the field of candIdates
for the first postmg ThIs would have placed the mtervenor 10 a pOSItIOn to succeed over the
gnevor 10 the competItIOn relatmg to the first postmg
In much the same vem, It was submItted on behalf of the employer that It was entIrely 10 the
dIscretIOn of the employer to determme the tImmg of the completIOn of the competItIon process
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for posted positIOns Accordmg to this submissIOn, the employer could for practIcal reasons
decIde to conduct two competItIOns for IdentIcal Jobs m any order meludmg sImultaneous Iv
should the employer so desIre
It was submItted on behalf of the gnevor, however, that m the CIrcumstances of the present case
there was a constramt upon the employer's dIscretIOn. Here, counsel for the umon submItted,
there was a umque sItuatIon m WhIch the mtervenor solely qualIfied for the first Job postmg She
was not permItted to apply for the Jobs m the second postmg because by that tIme, she had
ceased to be an employee of the Mimstry, and the competItIOn was lImIted to current employees.
Meldmg the two competitIOns mto one as the employer dId here counsel submItted, had the
effect of makmg the mtervenor elIgible for the Jobs m the second postmg as If she had been a
qualIfied applIcant. ThIs trenched upon the gnevor's nghts, It was submItted, because It had the
effect of shIftmg her one place farther down m the rankmg of the candIdates, and as It turned out,
out of the runnmg for one of the Jobs.
In response, counsel for the employer pomted out that the Job assIgned to the mtervenor was one
of the Jobs m the first competitIOn. Accordmg to counsel for the Umon, however thIS made lIttle
dIfference Smce the Jobs m the first and second postmgs were all rolled mto one and assIgned to
the top eIght candIdates, once agam all rolled mto one, It was of lIttle consequence It was
submItted, WhICh partIcular Job desIgnatIOn was wrItten down agamst each successful candIdate's
name That, It was submItted, was too easy a mampulatlOn, and as such could have lIttle beanng
upon the outcome of thIS case
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GIven the umque nature of the CIrcumstances of thIS case It IS of lIttle wonder that the parties
could not refer me to any substantIal bodv of authorIty for gUIdance In determining thIS matter
The most relevant authorIty cIted to me appeared to be Re MaglIocco and MmIstry of
CorrectiOnal ServIces (1994), G S B No 213/93 (Finley) In that case, as here, the employer
decIded to conduct a single set of intervIews and tests for Identical Jobs In two separate
competItIOns When It came time to select the successful candidates, however the employer
separated them out accordmg to the competItIOn(s) for whIch they had applIed. The grIevor was
elIgible to apply for both competItIOns but only applIed for one She was the top-rated candIdate
In the Jomt intervIew and testmg process. As such, she was assIgned a Job In the one competitIOn
for whIch she had applIed. When that Job was subsequently elIminated, she gneved, claImmg
that because the mtervIewmg and testmg had been melded mto one, so should the selectIOn
process. ThIS would have resulted m her reCeIVing aJob from the other competItIOn, one that stIll
eXIsted.
The board demed the gnevance It concluded that the employer dId not create an unfair SItuatIOn
for the grIevor by meldmg together the mtervIew and testmg process The board rejected the
grIevor's claim that she had been mIsled mto belIevmg that because of the JOint mterVIeW and
testing procedure she would be conSIdered In both competitIOns WIthout the neceSSIty of
applymg for both. It was up to the gnevor to apply m both competItIOns the board Said, and
smce she dId not, she could not claim a pOSItIOn for whIch she had not applIed.
8
In the present case, the employer apparently dId what the gnevor In MaglIocco contended should
have been done It melded together the IntervIew, testIng, and selectIOn processes for two
separate po stIngs for Identical jobs As was concluded In MaglIocco, It would seem that meldIng
together the IntervIew and testIng processes occasIOned no unfaIrness to the gnevor Any
unfaIrness that resulted In thIS case must have ansen by VIrtue of the meldIng together of the
selectIOn processes DId that happen here? It seems that It dId.
The conclUSIOn appears to be mescapable that the meldIng together of the selectIOn process had
the effect of pemuttmg the mtervenor to be conSIdered as If she were mcluded m a field of
applIcants elIgible to compete for the jobs In both postIngs There was a smgle rankmg of
applIcants for a smgle pool of jobs I must accept the submISSIOn of the umon that the aSSIgnment
to the Intervenor of a job that was Included, on paper at least, among the jobs In the first postIng
cannot be credIted WIth much weIght. WntIng down a partIcular job deSIgnatIOn agaInst a
partIcular candIdate's name at the end of the dav seems to be too easy a mampulatlOn of form
over substance to have any bearIng upon the outcome of thIS case It must be concluded that the
Intervenor was treated as If she were elegible for all the Jobs In both postmgs when, Indeed, she
was not. ThIS was a breach of the collective agreement.
There IS no doubt that the above breach created substantIal unfaIrness to the gnevor It had the
effect of shlftmg her one place down In the overall rankIng of candIdates and, as It turned out. out
of the runmng for any of the jobs. ThIS bnngs me to the questIOn of remedy Should the gnevor
be ordered Into the job now occupIed by the Intervenor?
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Both counsel for the employer and the Intervenor submItted that thIS remedy would not be
appropnate They pOinted out that according to the agreed statement of facts, Ms McPherson
ranked ahead of the gnevor and would have been the next In line to receIve a job In the
competItion. Moreover, It was submItted, Ms Allossery was vIrtually tIed wIth the gnevor In the
ranking and mIght have been the successful candIdate mstead of the gnevor In hght of thIS,
counsel suggested, It would be Inappropnate to award the job to the gnevor
Counsel for the umon, however, pOinted out that Since the filmg of the gnevance In thIS case,
both Ms. McPherson and Ms Allossery had been successful In competItIOns for other ESA 2
jobs and would not be mterested In pursumg the job at hand. To sIgmfy thIS, counsel noted, Ms
Allossery and Ms McPherson wIthdrew theIr gnevances In thIS case, leavmg the gnevor to
proceed on her own.
Having consIdered the submIssIOns of both partIes, I must conclude that there IS no more
appropnate remedy to apply In thIS case than to award the gnevor the job now occupIed by the
Intervenor ThIS IS not a case where some other tradItIOnal remedy In job postmg arbItratIOns,
such as ordenng a rerun of the competItIOn, would be appropnate Here, there was no suggestIon
by the UnIon that the testmg and intervIew procedures were at all faulty so as to lead to a
mIsleadmg rankmg of the ments of the candIdates These are the usual reasons for ordenng a
rerun, Moreover, only the gnevor remams m contentIOn. Hers IS the only gnevance remaining
before me The other two candIdates, who mIght have succeeded ahead of her WIthdrew theIr
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gnevances The\ appear to be satIsfied with other sundar Jobs that have come theIr \va)
AccordIngly the gnevor IS hereby awarded the Job presently occupIed b\ the Intervenor It
would also seem appropnate to award her full retroactlvel) back to the date of her gnevance, as
requested by counsel for the umon. It IS so awarded
Before leavmg thIs matter I must express my regret regardIng the potential Impact of thIs
decIsIOn upon the employment status of the Intervenor The record leaves lIttle doubt that the
mtervenor IS a person of substantial ment and Integnty She IS not at all responsible for the
sItuatIOn In whIch she no\\- finds herself. Hopefull) wIth the assIstance of the employer the
Intervenor wlll find placement In sUItable alternatIVe employment as qUIcklv as possIble
Dated at Toronto, OntarIO thIS 14th day of September, 1995
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