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HomeMy WebLinkAbout1995-0577BHATTI97_02_03 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 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 :# 577/95 OPSEU :# 950017 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bhatti) Grievor - and - The Crown in Right of Ontario (Ministry of Housing) Employer BEFORE O.V Gray Vice-Chairperson FOR THE R Murdock GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE D Holmes EMPLOYER Counsel Management Board Secretariat HEARING January 27, 1997 DECISION Tills proceedmg concerns the followmg grIevance of AmJad Bhatti dated Apnl 3, 1995 Statement of Grievance The Employer is in vIOlatlon of Article 4 by improperly denying me the posItlon of Office Support Clerk whIch was posted Via CompetltIOn No. :MH 9/95. The Employer failed to run the noted competitlon in accordance with prOVISIons of Art. 4. The Employer fully honour the terms of the Settlement offered in letter dated July 27, 1994 by Mallila Wilson re grIevances (GSB#s 1584/83 [SIC] and 1585/93) see attached Settlement Desired The Employer award the posItlOn of Office Support Clerk rmmeillately The Employer rmmeillately rem state and Implement the terms of Settlement offered ill M. Wilson's letter dated July 27, 1994 (see attached) Tills deCISIOn records the result of efforts to clanfy the Issues raIsed by the gnev- ance, and provIdes dIrectIOns wIth respect to the delIvery of partIculars before the hearmg of eVidence begIns. The employer and trade umon agree on the followmg background facts. . The gnevor worked for several years as an unclaSSIfied employee on a senes of contracts m various office support posItIOns m the MImstry of Housmg In the summer of 1992, the MmIstry of Housmg posted a va- cancy for a permanent Office Support Clerk posItIOn. The gnevor and others applIed. The competitIOn was put on hold m August 1992, pendmg clearance of the surplus lIst. Clearance was obtamed m Feb- ruary 1993 A surplus employee was aSSIgned to the vacancy m May 1993 The gnevor contmued workmg on a further succeSSIOn of con- tracts until June 1994, when he was released - 2 - . The grIevor filed two grievances with respect to the Job competitIOn, and a third grievance wIth respect to the release . An order of the Board dated December 21, 1994 reflects what took place when the grievances came on for hearmg. A hearmg was convened in Toronto on December 6, 1994 to deal wIth the grIevances of Amjad Bhatti. Prior to the commencement of the hearmg, the Board was advised that the grievances had been wIthdrawn and that the parties had executed a Memorandum settmg out terms of settlement. The parties filed copIes of the Memorandum of settlement and asked that It be incorporated moo an order of the Board In accordance WIth the parties' request, the Memorandum of Settlement 18 attached as Appenchx "1\:' herem. This Memorandum shall have the same force and effect as if it were an award of the Board. . The Memorandum of Settlement attached to the order reads as fol- lows. APPENDIX "N File Nos. 1584-85/93 0318/94 In the matter of three grievances between OPSEU (Bhatti) and THE CROWN IN RIGHT OF ONTARIO (Mmlstry of Housmg) MEMORANDUM OF SETTLEMENT The parties agree to resolve these grIevances as follows. 1 The Ministry will, notwIthstandmg any other prOVISIOn of the collective agreement between OPSEU and the Crown, advertize the classified pOSItIOn of Office Support Clerk (classIficatIOn OA3) at 56 Wellesley St. W , Toronto ("the pOSItIOn") under ArtIcle 4 m January 1995, with the matter coming to full closure by March 30, 1995 and the competition will be restrIcted to MmIstry of Housmg employees. 2. The grIeVor will be entitled to apply for the pOSItIOn, even though he IS not presently employed by the MmIstry, WIth fullJIghts of grIevance under Article 4 If he IS not successful. The grIevor will also have full recourse, If approprIate under all applIcable laws mcludmg the Human RIghts Code. 3. Panel members m the competitIOn WIll be Impartial and will choose the successful candIdate m accordance WIth ArtIcle 4. The manager to 3 whom the posItIOn reports will chaIT the competitIOn panel. No mformatIon will be provIded to panel members concernmg the grIevance, human nghts and WDHP proceedmgs which preceded thIS settlement, and such proceedmgs will form no part of the panel's consIderatIOn. 4. The gnevor and the uOlon hereby release the Mmistry and ItS employees and agents from any hability ansmg out of these grIevances and the grIevor's human nghts complaint (OHRC FIle No. TE 000619) 5 The grievor and the uOlon hereby wIthdraw these grIevances and the gnevor agrees to withdraw hIS human nghts complaint forthwIth. 6. The parties agree that thIs Memorandum will be made and order of the Board "James DyY' "Sam Chonra" For the Mmistry For the DOlan "AmJad Bhatti" Gnevor . In January 1995, the employer posted an Office Support Clerk posItion m accordance wIth the terms of the Memorandum of Settlement. The grievor apphed for the positIOn, as the Memorandum of Settlement provIded he could A selection panel constItuted m accordance with the Memorand um of Settlement mterviewed the grievor and ten other candIdates. The panel ranked the grievor fourth out of the eleven can- didates After the competition closed on March 30, 1995, the grIevor was told that he had not been awarded the posItion. He then filed the grIevance that IS the subject of these proceedmgs . When he filed this grIevance on AprIl 3, 1995, the grIevor had not wIthdrawn the human rights complamt referred to m paragraph 4 of the Memorandum of Settlement. . In June 1996, the successful candIdate m the competitIOn m Issue was dIsplaced from the posItIOn m Issue as a result of bumpmg by another employee. That employee, the present mcumbent of the posItIOn in IS- sue, had more semorIty than the gnevor would have had If he had been awarded the posItIOn m Issue. Accordmgly, If the gnevor had been awarded the posItion m 1995 he would have been dIsplaced from It m 1996 The present mcumbent of the pOSItion m Issue, Betty Lee, had notice of and was present at the hearmg In her mItIal opemng statement, umon counsel - 4 mdlcated that the remedy sought wIth respect to the competitIOn dId not mclude an award of the pOSItion. Ms Lee wIthdrew from the hearing on that assurance that no outcome of thIS proceedmg would dIrectly affect her nght to her present posItIOn. In her opemng statement, counsel for the employer submItted that smce the grievor had not comphed with a term of the very agreement pursuant to which he had gamed the right to file this grievance, the grievance should be dIS- missed. She suggested that that issue be dealt with as a prehmmary matter, be- fore hearing the merits of the gnevance. During her response, counsel for the umon advIsed that m !nid-Apnl 1995 the Ontario Human Rights CommissIOn had decIded not to deal wIth the com- plamt referred to m paragraph 4 of the Memorandum of Settlement. Its deCISIon read as follows. ONTARIO HUMAN RIGHTS COMMISSION Amjad BhattI and MinIStry of Housmg, Rent Control Programs File No. TE.OOO619 The CommIssIon has exercised ItS mscretIon under sectIOn 34(1)(a) of the Code and has decIded not to deal with thIS complamt for the followmg reasons: 1 SectIOns 45(8) and 45(10) of the Labour Relatwns Act state an inmvIdual has the nght to me a grievance at whIch time an arbItrator has the power to determine the nature of the dIfferences, to determme all questIOns of fact or law, and to interpret and apply the requrrements of human nghts and other employment related statutes. 2. The evidence mmcates that the matters raIsed m thIS complamt will be the subject of a grIevance arbItratIon meetmg. 3. Accordmgly, the Complaint falls wIthm the prOVlSlons of sectIOn 34(1)(a) of the Code. Counsel for the umon further stated that a second complaint had been filed with the CommIssIon m March of 1995 She filed a copy of the complamt. It does not appear to challenge the conduct or outcome of the competItIOn m Issue m thIS gnevance She stated that she understood that thIS second complamt had been dIsmIssed, but did not have a copy of the deCISIOn. Counsel for the umon also stated that the grIevor took issue WIth the Board's order of December 21, 1994 and the Memorandum of Settlement referred to therem. She saId he felt he had accepted an earher settlement offer pursuant - 5 - to which he was to receIve a payment of $10,000 00, among other thmgs. ThIs offer was to be found in the letter of July 27, 1994 referred to in the grIevance Counsel said that the grIevor alleged that he had been coerced mto sigmng the Memorandum of Settlement by the lawyer whom the umon had retamed to act for hIm in respect of the grIevances it purported to settle. The grIevor had com- plamed about thIS to the Law SocIety of Upper Canada, but had not applIed for JudIcial reVIew of the Board's order of December 21, 1994 or filed an unfaIr rep- resentatIOn complaint wIth the Ontario Labour RelatIOns Board. HIS pOSItion, she saId, was that the terms of the memorandum referred to in Board's order of December 21, 1994 should be set aside and replaced by the terms of the offer re- ferred to m the second paragraph of hIS grIevance. HIS refusal to WIthdraw the human rights complamt as reqUIred by the Memorandum of Settlement was, she understood, tied to hIS feehng that the memorandum and the Board's order were Improper I note parenthetically that the draft settlement document that was en- closed WIth the letter to WhICh the grievance refers offered the grIevor a SIX month contract that would not be renewed It contamed no commitment to post any pOSItion within the hfetime of that contract. The only reference m the offer to the sum of $10,000 00, or to any sum of money, was m the followmg para- graph. 8. The GrIevor specIfically releases the Employer from the Umon's request for the following rememes: (a) a declaration that Article A, 3.15 1 and 4 were VIolated by the MmIstry of Housmg; (b) the Grievor's positIon be posted effective January 1992, and that he be gIven an opportumty to apply for the pOSItion WIth appropriate safeguards, and (c) the Gnevor be gIven damages for emotIOnal and mental mstress m the sum of $10,00000 The gnevor was gIven the opportumty to amphfy on umon counsel's ex- planatIOn of hIS pOSItion m thIS grievance He clearly wanted to attack the Board order and memorandum, whIle at the same time pursumg a grievance about the conduct of the job competitIOn conducted m purported compliance WIth the terms of the order and memo rand um. -6 Both counsel agreed that the referral of the present grievance to arbItra- tion dId not gIve me jUrisdictIOn to set aSIde eIther the Board's order of Decem- ber 21, 1994 or the Memorandum of Settlement mcorporated mto that order Counsel for the union said that she was unaware of any baSIS on which I could compel the employer to honour the terms of an offer that had not become an agreement. I explained to the grievor that If he wished to have the Board order of De- cember 21, 1994 and the incorporated memorandum of settlement set aside he would have to begin appropriate proceedings before a court or other tribunal wIth the JurisdICtIOn to provIde that rehef, and that If he chose to do that the hearing of thIS grievance could not go ahead before such other proceedmgs had come to a conclusion. I also explamed that If he wIshed the hearmg of tills grIev- ance to proceed wIthout hIS first challengmg the order and memorandum of set- tlement m another forum, that could only be done on the baSIS that he accepted that the order and memorandum were valid and bmdmg After havmg an opportumty to reflect, the grIevor saId that he dId not m- tend to attack the order and memorandum in court or elsewhere He agreed that the agreement made on December 6, 1994 as mcorporated mto the Board's order of December 21, 1994 was vahd and bmdmg Thereafter, the employer gave further consideration to ItS prehminary ar- gument about the grIevor's faIlure to WIthdraw hIS 1994 human rights com- plamt, in light of the dIsmIssal of that complamt m April 1995 After the lunch recess, counsel for the employer adVIsed that it was not pursumg that argument. It then emerged that the umon would be allegmg that the employer had breached both ArtIcle 4 and ArtIcle A of the partIes' collective agreement m con. ducting the competitIOn and awardmg the pOSItIOn m issue Counsel for the un- Ion consented to the employer's request for an order dIrectmg that the umon prOVIde partIculars of those allegatIOns before hearmg contmued Accordmgly, I dIrect that the umon prOVIde the employer WIth full par- ticulars of the allegatIOns of fact on whIch It rehes m thIS proceedmg, mcludmg 1 detaIls of the speCIfic acts and omIssions commItted by or on behalf of the employer that the umon alleges constitute a breach of the collec- tive agreement, - 7 2 the names of the indIvIduals alleged to have commItted any such al leged acts, and 3 the times when and places where such acts were allegedly commItted. These partIculars are to be delIvered to counsel for the employer wIthm four weeks of the date of thIS order, or wIthm such further time as the partIes agree. The hearmg of the gnevance wIth respect to the conduct and result of the compe- titIOn is adjourned to Apnl23 and 24 and May 12, 1997 Dated at Toronto thIS 3rd day of February, 1997 4.x.- ( Owen V Gray, Vice-ChaIr