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HomeMy WebLinkAbout2003-1631.Miller.05-03-31 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-1631 UNION# OLB335/03 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon (Miller) Union - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE Reva DevIns Vice-Chair FOR THE UNION Graham WillIamson Koskie Minsky LLP Barnsters and SOlICItorS FOR THE EMPLOYER Gordon FItzgerald Counsel LIqUor Control Board of Ontano HEARING February 7 2005 2 Award The gnevor Ms Jamce Miller IS a casual employee at LCBO Store 340 In Area J She applIed for a permanent vacancy In her Area and now gneves her non-selectIOn. The partIes agree that she had qualIficatIOns and abIlItIes relatIvely equal to the persons to whom the jobs were awarded and that she was the semor employeeI The Employer acknowledged that the Job PostIng descnbed a vacancy In Area J and that It determIned the specIfic locatIOn of the vacanCIes after the posItIOns were posted. Once the Employer IdentIfied the exact locatIOn of the vacanCIes, at Store 353 and 390 It selected the successful candIdates from those applIcants who were wIthIn the geographIc postIng area for those stores SInce the vacanCIes were not WIthIn the gnevor's geographIc postIng area, she was not consIdered for selectIOn. The Umon acknowledges that had the postIng specIfically advertIsed a vacancy at Store 353 or Store 390 Ms Miller would not be elIgIble for consIderatIOn. Nonetheless, In the Umon's submIssIOn, the Employer IS bound by the partIculars It provIded In the Job PostIng and IS not entItled to subsequently rely on a more restnctIve desIgnatIOn. In thIS case, SInce the Employer advertIsed a vacancy In Area J that posItIOn should be avaIlable to all casual employees who worked at stores In that Area. As the more semor applIcant from Area J the gnevor should have been selected In advance of the Incumbents The Employer submIts that ArtIcle 31 4 of the collectIve agreement lImIts casual employees to vacanCIes In theIr' geographIc area' The boundanes of the geographIc areas were further defined by the partIes and are expressed as the GeographIc PostIng Area. It IS the Employer's posItIOn that, regardless of what IS set out In the postIng document, casual employees are only elIgIble to apply for vacanCIes In theIr geographIc area. In thIS case, neIther vacancy occurred at a store 1 The parties advised that the incumbents had been notified of this Arbitration, however, neither incumbent attended nor did they indicate to either the Employer or the Union that they intended to attend. 3 wIthIn the gnevor's GeographIc PostIng Area and the Employer was therefore reqUIred to proceed on the basIs that she was not elIgIble for consIderatIOn at these locatIOns Agreed Statement of Facts The partIes submItted the folloWIng agreed statement of facts 1 The Employer created ajob postIng for a full tIme LIquor Store Clerk Grade 3 The postIng date was Apnl 30 2003 and the cloSIng date was May 14 2003 The postIng IndIcates that all bargaInIng umt employees In "Area J" may apply and that the locatIOn of the posted posItIOn IS In "Area J" A copy of the postIng IS attached at Tab 1 2 The PartIes have agreed to a senes of GeographIc PostIng Areas These are the "geographIc areas" referred to In ArtIcle 21 4(a)(l) and ArtIcle 31 4 of the collectIve agreement, GeographIc PostIng Area J Includes the folloWIng Stores 145 209 226 248 265 311340 346 353 390 404 453 523 529 536 590 612,618 623 693 and 783 Attached at Tab 2 IS a copy of the GeographIc PostIng Areas as agreed to by the PartIes 3 Ms Jamce Miller (the "Gnevor") IS a casual employee She submItted an applIcatIOn for consIderatIOn In respect of the above-noted postIng. 4 On or about June 13 2003 the Employer produced an announcement In respect of the postIng. A copy of the announcement IS attached at Tab 3 The Gnevor was not consIdered for or awarded the postIng. 5 The Umon, on ItS own behalf, and on behalf of the Gnevor filed a Gnevance In respect of the postIng. A copy of the Gnevance IS attached at Tab 4 In the Gnevance the Umon alleges that the Employer Improperly faIled to consIder the Gnevor for consIderatIOn In the postIng. 6 The partIes agree that If the Gnevor was elIgIble to apply for the posItIOn set out In the postIng (whIch IS the Umon's posItIOn, but whIch IS demed by the Employer) the Gnevor had qualIficatIOns and abIlItIes relatIvely equal to the persons to whom the job postIng was awarded, and was the semor employee 7 The PartIes agree that, pursuant to theIr Agreement In respect of the GeographIc PostIng Areas, the Gnevor's store, Store 340 falls wIthIn Area J By way of background, letters are used to desIgnate some geographIc areas wIth large numbers of stores It IS the Employer's posItIOn, whIch IS not agreed to by the Umon, that Store 340 IS only part of Area J to the extent that employees In Store 340 are elIgIble for vacanCIes In Stores 226 and 453 8 When the Employer sent out the announcement at Tab 3 IndIcatIng the fillIng of the postIng, It provIded the locatIOn of the posItIOn as beIng at Stores 353 and 390 Without prejUdICe to any further or any other matter between the PartIes, the Umon 4 acknowledges that had the postIng been advertIsed for a vacancy In Store 353 and/or 390 the Gnevor would not be elIgIble for consIderatIOn. ThIS IS because, wIth reference to Tab 2, In order to determIne whIch stores an employee IS elIgIble to be consIdered for a postIng, the employee finds theIr current store In the left hand column of the GP A lIstIngs and then references the Geo Posts column to find elIgIble stores 9 It IS the Umon's posItIOn, whIch IS not agreed to by the Employer that In thIS case, the Employer decIded that the postIng would be avaIlable to all employees In Area J and IndIcated that the vacancy eXIsted In Area J and that as the Employer dId not specIfy a store locatIOn for the vacancy It cannot rely upon the lImItatIOn In the GeographIc PostIng Areas agreed to by the PartIes 10 It IS the Employer's posItIOn, whIch IS not agreed to by the Umon, that regardless of what the postIng Itself may state, employees from Store 340 are only ever elIgIble to apply for vacanCIes In Stores 139 224 226 340 453 562, and 596 HavIng decIded that vacanCIes eXIsted at Stores 353 and 390 the Employer was entItled to determIne that the Gnevor was not elIgIble for consIderatIOn gIven that her store IS Store 390 11 The PartIes agree that, pnor to the announcement set out at Tab 3 the employees In the bargaInIng umt were not advIsed of whIch stores the postIng (attached at Tab 1) was for Additional evidence presented by the employer In addItIOn to the Agreed Statement of Fact, eVIdence was provIded by Paul ManCInI, the DIstnct Manager at the tIme of the postIng and Yolande Watson, the Human Resource Manager As DIstnct Manager Mr ManCInI was responsible for the operatIOns, human resources and budget of the stores In DIstnct 18 Ms Watson was responsIble for the postIng process Both of the Employer's wItnesses testIfied to the operatIOnal structure of the LCBO and the CIrcumstances surroundIng the postIng In Issue TheIr eVIdence was by and large not dIsputed by the Umon. Mr ManCInI'S DIstnct IS In Central RegIOn and Includes Stores 353 and 390 the sItes eventually chosen for the posted vacancy For admInIstratIve convemence, desIgnated areas that contaIn a large number of stores are referred to by a sIngle letter Area J A or G The Employer relIes on the applIcable letter desIgnatIOn as a form of short hand to aVOId lIstIng each of the Included stores IndIVIdually In most letter desIgnated areas, casual employees are elIgIble to apply for permanent posItIOns at any other store In theIr own letter area. That IS not the case In Area J where casual employees do not enjoy full recIprocIty WIthIn theIr letter desIgnated area. Store 340 the store where the 5 gnevor IS employed, IS one of the anomalIes In Area J The GeographIc PostIng Area for Store 340 IS confined to Stores 139 224 226 340 453 562 and 596 Of those stores, only Stores 226 340 and 453 are In Area J Employees at Store 340 are therefore only elIgIble for a few stores In Area J whereas the maJonty of stores In Area J are not wIthIn theIr GeographIc PostIng Area. The partIes have an ongOIng agreement2 that reqUIres the postIng of a full tIme posItIOn where casual employees work In excess of a specIfied number of hours In a calendar year DesIgnates of the Employer and Umon attend an annual meetIng to determIne whether the use of casual employees has generated the creatIOn of a permanent posItIOn (the PVR meetIng) Once It IS determIned that a vacancy eXIsts, the posItIOn need not be filled at the locatIOn nor by the IndIVIdual that generated the vacancy Pursuant to the 2003 PVR meetIng, a vacancy was declared In DIstnct 18 Mr ManCInI realIsed ImmedIately that Store 783 the locatIOn that generated the posItIOn, could not support another full tIme employee ThIS sIte was very small and was already sufficIently staffed. Another one of hIS stores, Store 390 was scheduled to double ItS retaIl floor space and based on hIstoncal data Mr ManCInI antIcIpated that the volume of sales at thIS locatIOn would Increase by 20-30% On thIS basIs Mr ManCInI ultImately concluded that the best operatIOnal use of another full tIme posItIOn would be at that locatIOn. He dId not decIde where the vacancy would be filled untIl after the Job was posted Mr ManCInI subsequently IdentIfied a further vacancy at Store 353 The first Incumbent, selected to fill the vacancy at Store 390 had been workIng as a casual employee at Store 353 and hIS departure, along wIth the absence of a full tIme employee on maternIty leave, persuaded Mr ManCInI that an addItIOnal vacancy should be filled at a second store ThIS vacancy was also filled from the applIcants to the Apnl 30 2003 PostIng. Once the locatIOns were IdentIfied, the successful candIdates were selected havIng regard to who was the most semor qualIfied, elIgIble casual employee elIgIbIlIty was determIned on the basIs of the agreed to GeographIc PostIng Areas Both of the Incumbents applIed as casual employees and were employed at Stores that Included Store 390 and 353 wIthIn theIr GeographIc PostIng 2 Set out in a letter of understanding. 6 Area. The IdentIfied vacanCIes were not sItuated at stores that were wIthIn Ms Miller's GeographIc PostIng Area and she was therefore not consIdered. In makIng the selectIOns, Mr ManCInI testIfied that he was not motIvated by favountIsm to the two Incumbents nor ammus towards the gnevor Mr ManCInI had not met Ms Miller and was not aware of her qualIficatIOns Nor was he aware that the Incumbents had applIed for the vacancy untIl after the cloSIng date for the PostIng. Ms Watson, the human resource manager responsIble for the relevant Job PostIng document, confirmed that she was unaware of the preCIse locatIOn of the vacancy untIl after the postIng document was prepared. She knew that the vacancy would not be filled at the locatIOn that generated the posItIOn at the PVR meetIng but she dId not know where the new posItIOn would be sItuated. Therefore she chose to descnbe the locatIOn of the vacancy In the Job PostIng In the broadest possIble terms to ensure that everyone who could be elIgIble for the posItIOn was aware of the postIng and could apply If they were Interested. On cross eXamInatIOn, Ms Watson agreed that the LCBO can and has posted for vacanCIes at specIfic store sItes, although she also testIfied that Central RegIOn has not. In any event, In thIS case, she was unaware of the ultImate locatIOn for the vacancy and so she Instructed the clerk to post the job In Area J to aVOId unduly restnctIng Interested casual employees from applYIng for a posItIOn for whIch they mIght ultImately be elIgIble Collective Agreement The relevant provIsIOns of the CollectIve Agreement are as follows Article 21 Assignments and Job Postings 21 4 (a )(i) If a new job classIficatIOn WIthIn the bargaInIng umt IS created, or a permanent vacancy occurs In an eXIstIng job classIficatIOn, before InVItIng applIcatIOns from persons not employed by the Employer or employees who are outsIde of the bargaInIng umt, the Employer wIll post wIthIn the geographIc area as specIfied, notIce of such new job or vacancy for a penod often (10) workIng days dunng whIch employees wIthIn such area may apply The notIce shall stIpulate qualIficatIOns, classIficatIOn, salary range, department and locatIOn concerned. Article 31 7 Casuals The provIsIOns of thIS CollectIve Agreement shall apply to casuals except wIth respect to the folloWIng modIficatIOns and exceptIOns lIsted In ArtIcle 31 3 31 3 The applIcatIOn of ArtIcle 21IS lImIted by the provIsIOns of ArtIcle 314 below 31 4 (a) Casuals shall have the nght to apply for certaIn permanent part- tIme posItIOns In accordance wIth the provIsIOns of ArtIcle 21 AssIgnments & Job PostIngs They shall, however only be elIgIble to apply for vacanCIes WIthIn theIr geographIc areas If there IS no permanent part-tIme employees promoted In accordance wIth ArtIcle 21 5(a) (b) The Employer agrees to gIve consIderatIOn to the qualIficatIOns and abIlIty of casuals for permanent full-tIme vacanCIes at the entry level In theIr geographIc area, provIded that no permanent part-tIme employees have applIed Where qualIficatIOn and abIlIty are relatIvely equal, semonty shall be the determInIng factor Submissions The Umon submIts that the Employer must be reqUIred to stnctly adhere to the terms of the Job PostIng document to ensure fairness and transparency In the selectIOn process In It'S submIssIOn, the Employer was free to desIgnate a vacancy at a partIcular store and, had they done so then the lImItatIOns contaIned In the GeographIc PostIng Area would have properly defined elIgIbIlIty In thIS case, however the Employer desIgnated the locatIOn of the vacancy In the Job PostIng as Area J and the gnevor who IS elIgIble for Area J posItIOns, IS entItled to be consIdered for the vacancy as It was descnbed In the Job PostIng. In the Umon's submIssIOn, the Employer erred by dIsregardIng the PostIng Document and retroactIvely applYIng the lImIts set out In the GeographIc PostIng Area to exclude the gnevor The Umon maIntaInS that the GeographIc PostIng Area only applIes when the Employer IdentIfies the store locatIOn In the postIng Itself and that where they faIl to do so they are bound by the locatIOn IdentIfied In the Job PostIng. In a case such as thIS, where the Employer elects to declare a vacancy In a general area, applIcants are entItled to rely on the terms set out In the postIng and the Employer cannot subsequently lImIt elIgibIlIty by ImpOSIng narrower terms It would be Inherently arbItrary and unreasonable to allow the Employer to mampulate the process In thIS manner 8 Upon heanng the eVIdence ofMr ManCInI wIth regard to the second vacancy the Umon also asserted that that selectIOn was Improper as It was filled wIthout the benefit of an Independent Job PostIng. The second posItIOn was created well after the postIng had closed and should therefore be re-run. In support, of ItS posItIOn the Umon cItes Re Fletcher Challenge Canada Ltd and Communications Energy andPaper)1,orkers Union, Local1l23 (1997),62 L AC (4th) 62 (Taylor) Re Northern Electric Co and United Automobile Workers, Local 27 (1972) 1 L.A C (2d) 51 (Palmer) Re Mount Sinai Hospital and Ontario Nursing Association (1991), 13 LAC (4th) 230 (HaeflIng) Re Co-Operative Regionale de Nipissing Sudbury Ltd and R. WD S. U (1998), 77 L AC (4th) 328 (Solomentenko) and CanadIan Labour ArbItratIOn, ThIrd Ed. para. 5 2524 (Brown and Beatty) In the Employer's VIew a vacancy In the casual employee's geographIc postIng area IS a pre- condItIOn to consIderatIOn of theIr applIcatIOn for a full tIme posItIOn regardless of the content of the Job PostIng. In thIS case the gnevor's GeographIc PostIng Area was lImIted to some but not all of the stores In Area J Once the final determInatIOn was made IdentIfYIng the specIfic stores where the vacanCIes would be filled, the Employer was oblIged by the terms of ArtIcle 31 4 to select applIcants who were elIgIble for those sItes, to do otherwIse would be to Ignore the clear provIsIOns of the collectIve agreement. The Employer suggested that they are free to set out the locatIOn of a vacancy In the broad terms employed In thIS case In any event, If they are not, the Employer's only error In thIS Instance was theIr faIlure to set out a more preCIse locatIOn for the vacancy when It was posted. In theIr submIssIOn, even If the Job PostIng should have provIded a more specIfic locatIOn, the gnevor cannot be awarded a posItIOn for whIch she IS not elIgIble under the express terms of the collectIve agreement. In support of ItS posItIOn, the Employer cItes Re Ontario Hydro and Canadian Union of Public Employees Local 1000 (1987),30 L AC (3d) 331 (Brent) Re Marks and The Crown in Right of Ontario (MinistlY of Natural Resources (1981),30 L AC (2d) 61 (Weathenll) Re Union Gas Ltd and Energy and Chemical Workers Union, Local 764(1988), 1 LAC (4th) 254 (Palmer) Re Hershey Canada Inc and Retail, Wholesale & Department Store Union. Us. WA. Local 9 461 (1995) 51 LAC (4th) 299 (Kates) Re International Nickel Co of Canada and United Steehwrkers (1974),6 L AC (2d)104 (Rayner) and Re St. John sTraining Schoolfor Boys and Ontario Public Service Employees Union, Local 361 (1999), 91 LAC (4th) 76 (Knopf:) Analysis Under the terms of the current collectIve agreement, casual employees have lImIted nghts to apply for permanent posItIOns ArtIcle 31 4 restncts the scope of that entItlement and confines casual employees to vacanCIes WIthIn theIr 'geographIc area' The partIes have delIneated the specIfic lImIts of an IndIVIdual applIcants' 'geographIc area' and set them out In detaIled GeographIc PostIng Areas whIch they have defined by reference to IndIVIdual stores The Employer has ItS own letter desIgnated areas that by and large mIrror the GeographIc PostIng Areas but whIch are not a perfect match. The Issue that anses In thIS case IS a consequence of the lack of symmetry between the defined GeographIc PostIng Areas and the language employed to descnbe the locatIOn of the vacancy when the Employer's descnptIOn does not correspond to a locatIOn In the defined GeographIc PostIng Areas, what 'locatIOn' defines elIgIbIlIty? The Umon submIts that an applIcant's elIgIbIlIty IS governed by the terms set out In the Job PostIng document, whereas the Employer maIntaInS that the selectIOn process, for casual employees, IS first and foremost determIned by reference to ArtIcle 31 4 The facts In thIS case are not In dIspute The Employer advertIsed a vacancy wIthIn a broad geographIc regIOn, IdentIfied as Area J wIthout further IdentIfYIng the store at whIch the vacancy would be filled. SInce the defined boundanes of the GeographIc PostIng Areas are store specIfic, potentIal applIcants who revIewed the Job PostIng would not have known whether the vacancy was In theIr GeographIc PostIng Area. The Gnevor applIed for the vacancy and was elIgIble for some stores wIthIn Area J the posted locatIOn of the vacancy After the vacancy was posted, the Employer determIned the preCIse locatIOn where the posItIOns would be filled. Stores 353 and 390 the ultImate sIte of the vacancIes, are not WIthIn the gnevor's defined GeographIc PostIng Area and she was consequently not consIdered for the vacanCIes It was conceded by the Umon that If the Employer had IdentIfied eIther of these stores In the Job PostIng, the gnevor would not have been elIgIble for eIther vacancy The Employer 10 acknowledged that the gnevor possessed qualIficatIOn and abIlIty relatIvely equal to the Incumbents and that she was the semor candIdate On the basIs of these agreed facts, the partIes agree that the gnevor would be entItled to the vacancy If she IS elIgIble for consIderatIOn. The Umon maIntaInS that the Employer elected to descnbe the locatIOn of the vacancy In very general terms and that It InvIted applIcatIOns on that basIs The Umon suggested that the Employer was free to desIgnate the locatIOn of the vacancy as they dId, however It was then restncted to the terms It set In the Job PostIng. It was the Umon's posItIOn that the GeographIc PostIng Areas only applIed when a specIfic store was IdentIfied In the Job PostIng Where the Employer does not specIfy a store locatIOn In the postIng document, It cannot subsequently rely on the lImItatIOns contaIned In the GeographIc PostIng Areas I was urged to maIntaIn the transparency and preserve the Integnty of the selectIOn process by lImItIng the Employer In thIS way Although I have some sympathy for the Umon' s posItIOn, I do not thInk that the collectIve agreement can be Interpreted In the manner that they contend. ArtIcle 21 4 provIdes that certaIn detaIls of the vacancy must be Included In the notIce provIded to prospectIve applIcants IncludIng "qualIficatIOns, classIficatIOn, salary range, department and locatIOn" Pursuant to ArtIcle 31 3 whIch governs casual employees, the applIcatIOn of ArtIcle 21 IS expressly lImIted by ArtIcle 31 4 ArtIcle 31 4 goes on to state that casual employees are eligible to apply for permanent vacancies yt,ithin their geographic area and that the Employer wIll consIder the "qualifications and ability of casuals for permanent full-time vacancies at the entry level in their geographic area, provIded that no permanent part-tIme employees have applIed. Where qualIficatIOn and abIlIty are relatIvely equal, semonty shall be the determInIng factor "(emphasIs added) As acknowledged by the partIes, the collectIve agreement provIdes lImIted nghts to casual employees ArtIcle 31 4 sets out the condItIOns that apply when casual employees are seekIng a permanent posItIOn. A number of restnctIOns are enumerated, however chIef among them IS the reqUIrement that the vacancy be In the applIcant's geographIc area. UltImately the partIes have determIned that for casual employees, qualIficatIOn, abIlIty and semonty IS subordInate to geographIc locatIOn. In my VIew thIS ArtIcle clearly establIshes that a casual employee's elIgIbIlIty for a full tIme posItIOn IS contIngent on a vacancy anSIng In geographIc proxImIty to 11 that employee's eXIstIng posItIOn. There are no exceptIOns, qualIficatIOns or dIscretIOnary components to thIS aspect of ArtIcle 31 4 The InterpretatIOn suggested by the Umon would, In effect, create an exceptIOn to the reqUIrement of geographIc proxImIty I see nothIng In the language of ArtIcle 31 to suggest that such an exceptIOn should be read Into the agreement. Indeed, It would be surpnsIng If the Employer could elect to umlaterally Waive the restnctIOns set out In 31 4 by the language It chose to descnbe the locatIOn of the vacancy As the Umon qUIte nghtly notes, the Job PostIng document IS created by the Employer and the InterpretatIOn advanced by the Umon would enable the Employer to determIne on ItS own ImtIatIve when and whether the negotIated geographIc postIng areas would be operatIve In my VIew a plaIn readIng of the relevant provIsIOns of the collectIve agreement supports the Employer's posItIOn that to be elIgIble for a vacancy the vacancy must anse In the casual employee's geographIc area. The only "geographIc area" contemplated by ArtIcle 31IS that defined by the partIes as the GeographIc PostIng Area, It IS sImply not open to either party to SubstItute some other defimtIOn for that whIch has been JOIntly decIded. Undoubtedly It was open to the partIes to define "geographIc area" broadly or narrowly or to agree on multIple defimtIOns and leave It to the dIscretIOn of the Employer as to whether the locatIOn, and hence elIgIbIlIty wIll be a general area, such as Area J or store specIfic In the end they have proceeded to define the relevant geographIc area by reference to IndIVIdual stores and not desIgnated areas The combIned effect of ArtIcle 31 and the partIes' own defimtIOn of geographIc area precludes me from acceptIng the Umon's arguments Area J IS not a defined GeographIc PostIng Area and cannot be used to extend the avaIlable pool of elIgIble applIcants In a manner that IS InCOnsIstent WIth ArtIcle 31 4 In support of ItS posItIOn, the Umon has argued that It IS ImperatIve that the postIng and selectIOn process be fair and transparent. As I suggested earlIer I am sympathetIc to the need for transparency IdentIfied by the Umon and agree that It IS essentIal that the selectIOn process be fair and be perceIved to be so I also accept that potentIal applIcants should be able to rely on the Job PostIng and that they are entItled to certaIn basIc partIculars In the notIce of the vacancy ArtIcle 21 4 outlInes the mImmum content reqUIred of the Job PostIng and Includes the dIrectIve that the locatIOn of the vacancy be IdentIfied. The Umon dId not ask me to find that the 12 Employer faIled to comply wIth the terms of ArtIcle 21 4 Indeed, theIr submIssIOn was contIngent on the Employer's dIscretIOn to IdentIfy the locatIOn as broadly as they have SInce I was not asked to address the adequacy of the Job PostIng, I wIll refraIn from makIng any findIngs In thIS regard. I wIll note, however that whether or not It constItutes a breach of ArtIcle 21 4 a faIlure to IdentIfy the exact locatIOn of the vacancy does InVIte confusIOn and dISappOIntment. GIven that elIgIbIlIty IS determIned by reference to an applIcant's proxImIty to the geographIc locatIOn of the vacancy the process mIght be better served If applIcants knew the preCIse store where the vacancy wIll be filled before they put In theIr applIcatIOn. In any event, despIte my sympathy for the general arguments raised by the Umon, I have concluded that the collectIve agreement does not permIt the remedy requested. Nor do I thInk that the facts of thIS case otherwIse warrant Interference wIth the Employer's selectIOn. In arnvIng at thIS conclusIOn, I am satIsfied that the Employer acted In good faith In selectIng the ultImate locatIOn and the IndIVIdual applIcants to fill these vacanCIes and that It acted In accordance wIth the collectIve agreement. There IS no eVIdence to suggest that the Employer acted for any Improper purpose, that It was motIvated by favountIsm or ammus wIth regard to any of the IndIVIdual applIcants or that ItS decIsIOn to sItuate the vacanCIes at Stores 353 and 390 was for any reason other than legItImate busIness consIderatIOns I also find that management elected to desIgnate Area J as the locatIOn of the vacancy to encourage the wIdest possIble pool of applIcants that mIght be elIgIble for the posItIOn and therefore acted to preserve, not lImIt, the potentIal entItlements of ItS casual employees There was ample InfOrmatIOn avaIlable to casual employees to alert them to the lImIts of theIr elIgIbIlIty On ItS face, the Job PostIng IndIcated that "the area of search wIll be the geographIcal postIng area" and further that "Casual candIdates wIll be selected In accordance wIth the provIsIOns under ArtIcle 31 4 of the CollectIve Agreement." The Job PostIng reInforced the restnctIve elIgIbIlIty of casual employees and explIcItly referred to ArtIcle 31 4 It further IndIcated that the area of the search would be the geographIc postIng area. In these cIrcumstances, I find that the Job PostIng dId not prejUdICe the gnevor In any way She knew that she was potentIally elIgIble for the vacancy and she applIed for the posItIOn. There was no eVIdence to suggest that the gnevor or anyone else, consIdered the use of the broader letter desIgnated area, Area J to have expanded her elIgIbIlIty or that she relIed on that belIef to her 13 detnment. I apprecIate that she was dIsappoInted when It was revealed that the final locatIOns chosen for these posItIOn were at stores that were not wIthIn her geographIc postIng area, however It was not arbItrary dISCnmInatory or unfair to her to proceed In thIS manner I have concluded that ArtIcle 31 4 lImIts the gnevor's entItlement to permanent posItIOns WIthIn her geographIc area. The partIes have defined the boundanes of the geographIc postIng area and they have done so by reference to specIfic stores and not large, general areas The Employer was not oblIged to consIder the gnevor for thIS vacancy and It acted properly In selectIng applIcants who were employed as casuals at stores wIthIn the GeographIc PostIng Area for vacanCIes at Store 390 and 353 In arnvIng at my conclusIOn I have carefully consIdered the cases provIded to me by counsel As they candIdly conceded In argument, none of the cases are dIrectly on pOInt and ultImately I dId not find that they were of much assIstance ThIS IS not a case where the employer sought to amend, Ignore or otherwIse alter the qualIficatIOns used In selectIng candIdates as was the case In a number of the cases cIted by the Umon (Fletcher Nipissing Mt. Sinai and Hotel Dieu) The Employer's decIsIOn regardIng the locatIOn of the vacancy was not one that went to qualifications reqUIred to perform the job at Issue Although the Employer's chOIce oflocatIOn clearly affected eligibility It IS not comparable to a retroactIve change to the reqUIred qualIficatIOns As I have already concluded, the lImItatIOns on elIgIbIlIty that were applIed by the Employer flow dIrectly from the collectIve agreement and are not Independent qualIficatIOns Nor IS thIS case analogous to the cases provIded by the Employer The Employer dId not attempt to cancel the job competItIOn or correct an error contaIned In the postIng document. The Employer acted delIberately In order to allow Itself the tIme and fleXIbIlIty It consIdered necessary before choOSIng the optImal locatIOn for the newly created posItIOn. A general vacancy was posted, wIth the specIfic sIte of the vacancy determIned at a later stage In the process There was no mIstake In the postIng that the Employer subsequently tned to correct nor dId It move to cancel the vacancy Arguably the Job PostIng lacked sufficIent partIculars, however at no tIme has the Employer sought to rectIfy any deficIency In the end, thIS case turns on the language found In ArtIcle 31 4 and the rather umque CIrcumstances of the GeographIc PostIng Area at Issue In the vast majonty of po stIngs where the 14 employer mIght descnbe the vacancy In sImIlar terms, there would be full recIprocIty and any employee wIthIn the desIgnated letter area would be elIgIble to apply at any other store wIthIn that area. It IS the exceptIOnal sItuatIOn where the general letter desIgnatIOn does not correspond to the GeographIc PostIng Areas agreed to by the partIes Although the partIes have not defined them as Interchangeable terms, they are, for practIcal purposes, by and large complementary Regrettably thIS gnevor IS a casual employee at a store wIth a more lImIted GeographIc PostIng Area and one that crosses boundanes across regIOns and dIstncts Consequently the general postIng Area that Includes her home store does not make her elIgIble for all stores In that Area. In cloSIng argument, the Umon also requested that the second vacancy be over turned on the basIs that It was not filled as a consequence of ItS own Job PostIng. I agree wIth the Employer that the Umon' s request IS beyond the scope of thIS gnevance I have already determIned that the Employer acted properly In determInIng that the gnevor was not elIgIble for consIderatIOn for eIther vacancy The concerns raised by the Umon may properly form the basIs for another separate gnevance, however It does not advance the cause of thIS gnevor and I would therefore declIne to consIder It further 15 Conclusion For the reasons provIded, I would dIsmIss the gnevance The gnevor IS not elIgIble for eIther vacancy awarded as a consequence of the Job PostIng at Issue Issued at Toronto thIS 31st day of March 2005 ~.. ~ - -.-.' .' , - _u_ . - ". - ~ f ~_; ...,. ';:; n. . ,.' . . ?j - _ ._. i' ...~ ~ ':'1_. ......, ,.~ .. . . . ~U.f'; -".~"_.~"" Reva DevIns Vice-Chair