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HomeMy WebLinkAbout1994-1229GARRISON95_06_26 ONTARIO EMPLOYES DE LA COURONNE ,/ CROWN EMPLOYEES DE L'ONTARlO ~ 1111 GRIEVANCE COMMISSION DE 6 G t~.f;<" SETTLEMENT REGLEMENT BOARD DES GRIEFS J~~ 180 DUNDAS STREET WEST. SUITE 2100, TORONTO ON M5G 1 Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 I".MI~ GSB # 1229/94 ~qECEJVED OPSEU # 94F258 JUN 2 7 1995 PUBLIC SERVICE IN THE HATTER OP AN ARBITRATION APPEAL BOARDS Under .J THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Garrison) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEPORE w. Kaplan Vice-Chairperson POR THE R. Murdock GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE L. Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING June 19, 1995 2 Introduction By a grievance dated August 29, 1994, Mr G. Garrison, a properly appointed unclassified employee, grieves that he was "denied a promotion to the position of Sign Erector/Sign Painter Improver as advertised in Competition # ER/8/94-49, contrary to the Collective Agreement." The remedy sought is that he "be awarded the job effective as of the date it was filled by the successful applicant with reimbursement of any and all losses flowing from the violation(s) of the Agreement." The case proceeded to a hearing in Toronto, at which time employer counsel raised a preliminary objection In brief, the employer took the position that the grievance was not arbitrable as properly appointed unclassified employees such as the grievor do not have the right to grieve job competitions. Employer counsel began his submissions by noting that the parties were agreed that the grievor was a properly appointed unclassified employee The parties were also agreed that the job at issue in this case does not arise as a result of Article 3 1 5 1 of the Collective Agreement. In the normal course of events, agreement on these facts would be sufficient for the Board to find that the grievance at issue in this case was inarbitrable (see Mcintosh, 3027/92 (Dissanayake)) However, the Board has, in cases of this kind, taken jurisdiction where the union has alleged that the employer acted in bad faith In this case, union counsel argued that the union intended to show that the competition was tainted as a result of employer bad faith, and advised the Board that it would lead evidence establishing that the successful candidate, Mr David Harris, was favoured by the employer, and that the outcome of the job competition had been determined in advance The union asserted that it would establish this ,;" 3 allegation by demonstrating that Mr Harris worked closely with the supervisor, Mr Glen Connell, and that Mr Harris had openly expressed his intention of replacing Mr Connell when he retired in two years. Moreover, the union would also establish, counsel advised, that the grievor had been denied computer training in the months leading up to the competition The union also took the position that if the grievor had received computer training he would have scored higher in the competition than Mr Harris and would likely have obtained the job. Accordingly, union counsel took the position that the Board should take jurisdiction to hear the case For his part, employer counsel pointed out that he did not receive any notice of the union's bad faith allegations until the day of the hearing He was, therefore, not in the position to lead evidence specifically rebutting the union's claims. Be that as it may, employer counsel nevertheless took the position that the allegations, as articulated by union counsel, were, on their face, insufficient to support a bad faith claim. It was hardly sufficient, in the employer's view, for the Board to take jurisdiction simply because the successful candidate may have expressed his intention of replacing his supervisor when he retired several years hence Whatever the incumbent's statements might represent, even assuming for the sake of argument that they were true, they did not represent any bad faith on the part of the employer in the running of this job competition or in the result. Moreover, there was no reason to believe that the computer training, and its purported denial some time prior to the job competition at issue in this case, had anything to do with that job competition. There was simply no nexus between the union's allegation, baldly asserted, and the claim of bad faith. Counsel further pointed out that even if the grievor had received a perfect score for the computer portion of the competition, he would still have been 4 unsuccessful given that the successful incumbent was a classified employee with seniority significantly in excess of the grievor F or these reasons, employer counsel asked that the grievance be dismissed Decision Having carefully considered the submissions of the parties, I am of the view that this grievance should be dismissed. As noted above, there is no dispute between the parties that, in general, grievances of this kind filed by persons situated as the grievor are inarbitrable In Mcintosh, however, the Board held that the Board has jurisdiction, in cases of this kind with respect to grievances filed by persons in the same situation as the grievor, "to review the employer's conduct in carrying out the job competition in order to determine whether there is merit in the grievor's allegation that the employer acted in bad faith. "(at 22) See also Norland, 3160/92 (Gorsky) It is important to point out that in McIntosh. the union stated that it would "establish bad faith on the part of the employer by leading evidence that one of the incumbents received assistance and preferential treatment during the competition process, and that the selection panel deliberately placed obstacles against the chances of the grievor's success" (at 3) The allegations of bad faith in that case are, clearly, quite different in kind and character from those asserted in the instant one Evidence that the successful applicant stated that he intended, one day, to replace his supervisor, or that he had worked closely with that individual, may show some things, but it does not show bad faith on the part of the employer in the running of this job competition, or in its result. Moreover, claims that the grievor did not receive computer training are simply insufficient, in the 5 " absence of some link to the job competition, to demonstrate employer bad faith, and to establish, as the union asserted, that the outcome of the job competition had been determined in evidence. When this finding is combined with the undisputed fact that the successful candidate, a classified employee with many long years of service, would have likely , trumped the grievor even if the grievor had received a perfect score for the computer questions, there is simply no basis to conclude that the allegations of bad faith are any more than that. It should also be noted that the allegations were made just before the hearing In the normal course of events, claims of this kind should be made in advance of the hearing and should be accompanied by detailed particulars which would establish, if proved, bad faith in the running of the competition or in its result. Accordingly, and for the foregoing reasons, the grievance is dismissed. DATED at Toronto this 26 t h day of June 1995 tv/~ ---------- William Kaplan Vice-Chairperson