HomeMy WebLinkAbout1990-0579.Hall.92-02-12
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.a ONTARIO EMPLOY~S DE LA COURONNE
... CROWN EMPLOYEES DE L'ONTARIO
1111 GRIEVANCE CpMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100 TOFlONTO, ONTARIO. M5G lZ8 TELEPHONE/TE:LEPHONE (416) 326-1388
180. RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZIJ FACSIMilE 1T(:LECOPfE (416) 326-1390
579/90, 580/90
IN THE HATTER O~ AN ARBITRATION
Onder
THB CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
- THE GRIEVANCE SETTLBHENT BOARD
BETWEEN
OPSEU (Hall)
Grievor
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The Crown in Right of ontario
(Ministry of Correctional Services)
Employer
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BEFORE: M Watters Vice-Chairperson
M. Lyons Member
M. O'Toole Member
~OR THE P. Chapman
GRIEVOR Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE A. Pruchnicki
EMPLOYER Staff Relations Officer
Grievance Administration and Negotiations
Ministry of Correctional services
HEARING June 21, 1991
october 21, 1991
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This proceeding arises from two (2) grievances both dated
March 21, 1990 The grievor claimed therein that he was denied
the opportunity to apply for two (2) vacant Bailiff positions ;n
SudburYJ Ontario He requested, inter alia, that he be placed in
one (1) of the positions At the commencement of the hearing,
the parties filed an Agreed Statement of Facts We have appended
this document to our Award Both parties supplemented these
facts through viva voce evidence
At the outset, the Employer raised two (2) preliminary
objections with respect to the Board's jurisdiction to hear the
merits of the grievances Firstly, it was submitted that the
Grievance Settlement Board lacked the authority to entertain a
complaint concerning a decision to restrict the area of search
The Employer argued that such an issue fell within the scope of
management rights as provided for in section 18 (1) of the Crown
EmDlovees Collective BarQaininQ Act, R S 0 1980, Chapter 108, as
amended (CECBA) Secondly, it was asserted that the matter was
not properly the subject of an individual grievance as the
grievor had not in fact applied for the positions We were
consequently urged to conclude that he had not been affected in
an immediate and tangible way The Employer asked the Board to
provide a ruling on these preliminary questions prior to
proceedin.9 to the merits
In response, the Union requested that we reserve on the
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prellminary issues until after the presentation of evidence and
argument Counsel for the Union advised that she wished to
present eVldence to establish that the Employer was estopped from
relying on its management rights Counsel further submitted that
the evidence would demonstrate the propriety of the individual
grievances filed in this instance I
After hearing and considerlng the respective submissions,
the Board elected to reserve its decision on the preliminary
objections until after the presentation of evidence and argument
The grievor has been a Provincial Bailiff since 1982 Up
unt i 1 January 1990, hlS posltion was classified at the Balliff I
level At that juncture, he assumed the acting position of
Offender Transfer Co-ordinator This position was classified at
the higher Bailiff 2 level 80th of the aforementioned positions
were attached to the Offender Classification And Transfer Unit in
Metropolitan Toronto At the time of the grievances, all but two
( 2 ) provincial Bailiffs worked out of that office These latter
bailiffs were connected to the Thunder Bay Correctlonal Centre
Notwithstanding such placement, the plannlng and coordinating of
inmate movements was done through the Toronto office It is
clear from all of the evidence that the grievor was an excellent
employee while in the positions referred to above Indeed, his
acting posltion was made permanent in December, 1990
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The gn evor, as ear1y as 1987, advised the Employer that he
was interested in returning to Sudbury This interest was
canvassed in all of his P P R 's from that year onward
Additlonally, it formed the subject matter of numerous
discussions with different members of management The grievor's
interest in returning to his home town arose as a consequence of
his parents poor health The Board was advised that his father
has cancer and that his mother suffers from a heart condition
The grievor wlshed to return to Sudbury so that he could be close
to his parents He indicated that he returns there at least
twice a month in order to be with them
On several occasions prior to the competitions here in
issue, the grievor had conversations with Mr A& Huson, the
Superintendent of the Sudbury Jail, concerning the possibility of
transferring to that facility as a Correctional Officer 2 Such
a step would have constituted a demotion for the grievor It
would also have required shift and weekend work The grievor
testified Mr Huson advised hlm that he didn't anticipate any
problems in hlS winning a job competition given his record and
experience At or about that time) the Jail was to receive an
lncrease in complement Ultimately, the grievor did not pursue
this opportunity APparently, his wife was reluctant to leave
her job In Toronto in view of the uncertainties inherent in the
Sudbury position
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The grlever flrst learned in the Fa11 of 1988 that Bailiff
positions might be estab,ished in Northern Ontarlo This
development was the sUbject of discussion at a meeting in May,
1989 All of the bailiffs were in attendance at thlS meetlng
It was the grlevor's evidence that Mr T Watson, the Manager of
the Offender Classification And Transfer Unit, announced a
decision had been taken to create a Northern Bailiff's office
which would be lecated in either Sudbury or North Bay The
griever questioned Mr Watson about his eligibility to compete
for one (1) of the new positions He stated that his Manager
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then told him that members of the existing unit would be
permitted to compete It was the griever's further evidence that
this assurance was repeated by Mr Watson during the lunch break
of a meeting held in June, 1989
The griever received faxed copies of the postings on March
5, 1990 He then learned for the first time that the
competitions were restricted to the Ministry's classified staff
at the two (2) facilities in question The Opportunity Bulletins
for the Provincial Bailiff positions at the Cecil Facer youth
Centre and the Sudbury Jail are appended to the Agreed Statement
of Facts as Schedules · A' and · B' , respectively The required
qualifications for both positions were stated as follows
Significant experience as a Correctional Officer 2
wlth solid background ln security practices and
procf3dures, normally acquired through several years
experience and exposure to escort duties and
transferring of inmates/young offenders, valid Ontario
Driver's Llcense and acceptable driving record, good
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report writlng skills, acceptable attendance and work
record, willingness and ability to travel extensively
throughout Ontario on trips of up to four days
duration, knowledge of various warrants required by
legislation
The grievor subsequently spoke by telephone with Ms Paullne I
Radley, the Regional Director of the Northern Region, with I
respect to the decision to restrict the area of search It was
the grievor's evidence that Ms Radley was unwilling to modify
the area of search so as to allow him to apply As a result of
this conversation, the grievor did not apply for either of the
two (2) positions It was the grievor's recollectlon that
postings were Province-wide for many of the vacancies which had
previously been filled in the Toronto Bailiff's office
The grievor asserted that, had he been advised in May, 1989
that the competitions would be restricted to the classified staff
at the Cecil Facer Youth Centre and the Sudbury Jail, he would
most likely have applied for a job as a Correctional Officer 2
at the latter facility He further stated that he would have
changed his address to the Sudbury area The grievor believed
that he would have been successful had he been permitted to
compete fqr the positions This belief was premised on his past
record and experience He noted that, at the time of the
competitions, none of the classified staff at the two (2)
aforementioned facilitles were Bailiffs
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Mr J Dick, another Bailiff in the Toronto office, was
present at the May, 1989 meeting during WhlCh the establishment
of a Northern Bailiffs Unit was discussed He testified that Mr
Watson 1ndicated that the M1nistry was considering establishing
such a unit in either Sudbury or North Bay He further stated
that Mr Watson, 11"1 response to a question, advised that
interested persons in his unit would be able to apply when the
positions were posted Mr D1Ck recalled a slmilar statement
being made at the June, 1989 meeting Mr R Hudd, a Senior
Bailiff 1n the same office, had an identical recollection as to
what was said by Mr Watson during the May, 1989 meeting
As noted, at the time material to this proceeding, Mr
Watson was the Manager of the Toronto Unit His formal jOb title
was then Manager, Program Support And Coordination - Offender
Program Branch Mr Watson testified that the expansion of the
Northern Bailiff system was discussed at the May, 1989 meeting
He there advised that there could be a change in the Bailiff
runs This was attributed, in part, to the establishment of
the Northern Treatment Centre Mr Watson explained to those at
the meeting that this development might result in the creation of
a separate Bailiff organization to service some of the needs of
Northern Ontan 0 From h1S perspective, the plans were then at
the "development stage He was not sure at the time whether the
unit would be located in Sudbury or North Bay
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Mr Watson acknowledged that, in the midst of the exchange,
the grievor asked whether the Bailiffs present at the meeting
could apply for the new positions There was, apparently, some
concern on the part of the Bailiffs that they might not be able
to do so as competltlons within MCS are frequently restricted to
a particular institution In his evidence, Mr Watson suggested
that the question posed was difficult to answer as there were
many uncertainties existing at the time For example, it had not I
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then been determined whether the Toronto Bailiffs would report to I
the new Head Office in North Bay or whether they would be
attached to a separate regional structure in Toronto Further,
Mr Watson emphasized that the creation of the northern positions
was simply an idea~ at that juncture He testified that all of
this uncertainty was in his mind when he responded to the
grievor's inquiry He did concede that he could not be certain
that a 11 of the variables were communicated to the group
Nevertheless, Mr Watson indicated he was confident he advised
those in attendance that they could apply for the positions if
the Bailiffs were attached to Head Office and if the positions
were in North Bay He also premised his response on the
assumption that he would be the person in charge of the unit In
summary, it was Mr Watson's assessment that his answer to the
grlevor contalned a lot of ifs~ or qualifiers He acknowledged
that he could not be certain as to what the grievor took from his
response Ultimately, lt was Mr Watson's position that he could
not then promise something he was unable to control
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Mr Watson advised that most of the competitions for Bailiff
positions withln the Toronto Unit had a forty (40) kilometre
restriction in the area of search He could recall one (1)
exceptlon relating to employment equity In that instance, the
limited term positions were posted across the Province
Relocation expenses were not provided to the successful
app 1 i cants
Mr Watson left the Southern Bailiff Unit in September, 1989
to become the Superintendent of the Northern Treatment Centre in
Sault St Marie Before leavlng, he provided some input into the
development of the Northern Bailiffs unit Ms Radley later
asked hlm for further assistance with respect to the
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establishment of that unit Mr Watson subsequentl'y recommended
that it be separate from the Toronto Unit and that it report
directly to the Northern Regional Office He did not have any
role in the decision to restrict the area of search Lastly, Mr
Watson advised that Correctional Officers are normally hired into
Bailiff positions He expressed the opinion that a well-trained
Officer would satisfy the minimum qualifications for such a
position although some training might be required in respect of
the transportation of inmates
Mr B Roy, the Regional Manager for the Northeast Region,
was advised by Ms 'Rad 1 ey in mid-May, 1989 that a Northern
Bailiffs system would likely be established He was asked for
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his asslstance and input ln respect of the implementatlon of the
project Mr Roy testified that he was strongly committed to
service delivery in Northern Ontario H1S bias at the materlal
time was to enhance and support programs within the region It
was his judgment that the new service should be as northern as
possible In this regard, he argued that Sudbury, and not North
Bay, should be the base for the Northern Bailiff's Unit Ms
Radley ultimately accepted that recommendation Mr Roy also
viewed the creation of the unit as an opportunity to promote
career advancement within the North He noted that northern
institutional staff "never got a shot" at a lot of the positions
offered when the Head Office was located in Toronto
Mr Roy was responsible for the decision to limit the area
of search Initially, he selected the Sudbury Jail and the Cecil
Facer Youth Centre as they dealt with the two (2) population
groups to be transported, namely, adult inmates and Young
Offenders He then determined that there was a pool of
sufficiently qualified candidates at both facilities to satisfy
the Ministry policy as contained within Schedules 'E' and ' F' of
the Agreed Statement of Facts More particulary, Mr Roy
concluded that not less than three qualified candidates could
be secured within both locations At the time, fifty-three (53)
Correctional Officers were employed at the Jail) while one
hundred and twenty-three (123) were employed at Cecil Facer Mr
Roy testified that Correctional Officers in the North were very
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much" involved ln the informal transportation of inmates between
institutions, albeit their trips might not be as long as those
engaged ln by the Bailiffs It was his opinion that the
transporting and escorting of inmates was an important part of
the job of the Correctional Officer Mr Roy stated that he was
never contacted by the grievor concerning the competitions for
the two (2) positions in Sudbury
The relevant provisions of the collective agreement read
4 3 In filling a vacancy, the Employer shall give
primary consideration to qualifications and
ability to perform the required duties Where
qualifications and ability are relatively equal,
length of continuous service shall be a
consideration
27 16 The Grievance Settlement Board shall have no
jurisdiction to alter, change, amend or enlarge
any provision of the Collective Agreement
Section 18 (1) of CECBA provides as follows
18 (1) Every collective agreement shall be
deemed to provide that it is the exclusive
function of the employer to manage, which
function, without limiting the generality of
foregoing, includes the right to determine,
(a) employment, appointment, complement,
organizatlon, assignment, discipline,
dismissal, suspenSlon, work methods and
procedures, klnds and locations of
equipment and classification of
positions, and
(b) merit system, training and development,
appraisal and superannuation, the
governing principles of which are
subject to review by the employer with
the bargalning agent,
and such matters will not be subject of collective
bargaining nor come within the jurlsdlctlon of a
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As stated previously, it was the position of the Employer
that it possessed the exclusive right under section 18 (1) of
CECBA to determine and restrict an area of search The
representative of the Employer noted that article 4 3 of the
collective agreement is silent on that issue She, therefore,
asserted that the Board would contravene article 27 16 if we
limlted the Employer's right to restrict an area of search The
following awards were relied on in support of this submlssion
lav i ~::me, 561/81 (Delisle), Calicchia, 0302/85, 0602/85 (Roberts) ,
Criops, 660/86 (Verity), HaYford, 1119/88 (Di ssanayake) J
Carson/French, 582/89 (K i rkwood), Blake et al , 1276/87 et al
(Shime)
In LaviQne, the Employer elected to restrict the area of
search to "probationary and regular staff of this Mlnistry and
tre public within the geographical boundaries of the Elliott
Lake, Walford and Blind River Patrols " The Board, in dismlssing
the grievance, stated
We are satisfied here that the employer,
given the task of managing public funds, promotes
business efficiency by limiting the area of search
and we see nothing in the Collective Agreement
that in any way l,mits that right"
(page 6)
In Criops, the Board stated
"In the grievance before us, we are satisfied that
the right to limit the area of search geographically
arises from the statutory management rights provision
contained in s 18 ( 1 ) of the Crown Employees
Collective Barqaininq Act There is simply no
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provision in Article 4 which in any way limits the
right of management to determine the area of search
Moreover, we do not agree with the Unlon's contention
that following collective negotiations in 1984, the
inclusion of Artlcle 4 5 changes the result Clearly,
4 5 does not expressly limit the Employer's right to
restrlct the area of search In our opinion, the
effect of Article 4 5 is to authorize the payment of
relocatlon expenses, lf applicable, to a successful
applicant
Simply stated, we are not persuaded that the
Lavigne decision is manifestly wrong In our opinion,
that declsion, upheld as it was in Judicial review, is
an insurmountable barrier to the Union's success In
our opinion, the Employer has an obligation to operate
in a reasonably efficient manner Restricting the area
of search accommodates that objective
Similarly, the Board cannot agree that the
Employer's policy and practice in placing geographical
limitations on the area of search is unreasonable or
lnconsistent with the proper administration of Article
4 (page 9-10)
A similar statemeQt is found in the Hayford award at page seven
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( 7 ) The Board there concluded
"Accordingly, we find that the designation of an
area of search is a management right flowing from
section 18 ( 1 ) of the Act The grievor has been unable
to point to anything in the collective agreement that
fetters the exerClse of that right Therefore, the
Board is without jurisdiction to deal with the merits
of this grievance and the same is hereby dismissed
This Board was urged to follow the approach reflected in the
above-cited awards More specifically, we were asked to conclude
that we lacked the jurisdiction to entertain a complaint
regarding a restriction on the area of search
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In response, counsel for the Union submitted that it would
be wrong to "blindly follow past decislons of the Grievance
Settlement Board Rather, it was argued that a panel should
address all of the arguments in a given case and decide the
matter on that basis Counsel asserted that this was the
preferable approach as certain arguments may not have been
consldered in the earlier cases We were referred to the award
in Watts, 1340/90 (Stewart) and to the unreported decision of the
Divisional Court in MCS and DUDuis (released April 19, 1990) ln
support of this position In the former award, the Board stated
For the reasons expressed by the Chairperson of this
Board in the Blake decision, suora, the Board must be
extremely hesitant in departing from its established
jurisprudence However, the Board must consider all
the arguments raised before it in reaching a decision
in a particular case It cannot reject valid arguments
solely on the basis that their acceptance will result
in a decision that is inconsistent with a decision
which did not address those arguments
(page 10)
It was further submitted on behalf of the Union that
management's right to restrict the area of search is fettered by
article 4 3 of the collective agreement More particularly,
counsel suggested that the Employer could not limit the area of
search in a way that would prevent it from giving effect to the
primary conslderations in article 4 3, namely, the
qualifications and ability to perform the required duties of
the position It was the position of the Union that this
argument had not been addressed in any of the awards presented by
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the Employer AdditionallYJ it was asserted that this Board
could review the restriction placed on the area of search to
determine if it was made pursuant to an honest exercise in
managing the undertaking Counsel submitted that any decision
taken to restrict the area of search must be premised on a
legitimate business purpose From the perspective of the Union,
this type of decision could be challenged if made in bad faith or
in an arbitrary or discriminatory fashion We were referred to
the following awards in support of these arguments Union
Grievance) 0311/88 (Watters) . Da Costa, 570/84 (Samuels)
Reference was also made to the decisions of the Divisional Court
in both Laviqne and Crioos
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Ultimately, it was the position of the Union that the
decision to restrict the area of search prevented the Employer
from giving effect to the primary considerations set out ln
article 4 3 of the collective agreement It was further
submitted that the initiative was not taken pursuant to a
legitimate business purpose In this regard, the Union referred
to the evidence of Mr Roy Counsel asserted that his bias
towards the Northern Region reflected an inapproprlate and
arbitrary preference for a particular group of employees It was
suggested that Mr Roy's primary consideration did not relate to
the qualifications and abilities of prospective candidates
Indeed, counsel emphasized that the decision to restrict the area
of search excluded those persons with current or prior experience
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as a Bailiff She further submitted that Mr Roy did not
sufficiently review the pool of employees existlng at the two (2)
facilities to determine if they possessed the requisite
qualifications for the jobs to be filled We were urged to
conclude that Mr Roy's consideration of qualifications was
merely II an afterthought given his predisposition to enhance
career development within the North
In reply, the Employer submitted that Mr Roy had properly
addressed the issue of qualifications Firstly, reference was
made to the Opportunity Bulletins included in the Agreed
Statement of Facts The Employer representative argued that the
quallfications outlined therein were directly related to the
requirements of the positions It was noted that Mr Roy and Mr
Watson both believed that significant experience as a
Correctional Officer would satisfy the threshold set out in the
Job postings Secondly, the Employer emphasized that Mr Roy had
made the determination that three (3) qualified candidates could
be secured from the two (2 ) facilities so as to comply wlth the
Manual of Administration policy respecting the area of search
Thirdly, the Employer argued that the promotion of career
opportunities for Northern employees was a legitimate business
purpose Its representative stressed that such opportunities
were not previously available when the Bailiffs were located in
the Central Region Lastly, it was submitted that the Union had
not demonstrated any violations of article 4 It was the
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Employer's position that article 4 3 "clicks in .. after the area
of search has been established More specifically, the
representative for the Employer argued that such article does not
limit management's rights under section 18 (1) of CECBA We were
asked to follow the prior decisions of the Grievance Settlement
Board on this question
The Board has considered all of the evidence and argument
presented by the parties on this jurisdictional 1ssue In our
judgment, the prior panels in Laviane, CrioDs and Hayford
correctly determined that the collective agreement does not llmit
the Employeris statutory right to restrict the area of search
I We have not been persuaded that article 4 3 serves to fetter that
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right i~ the manner suggested by the Union In any event, the
Board is satisfied on the evidence that Mr Roy did in fact give
sufficient attention to the presence of sUltable qualifications
Ultimately, we accept that the qualifications set out in the
Opportunity Bulletins were reasonably related to the job to be
performed Mr Roy determined that a suitable number of
candidates possessing such qualifications could be secured from
both the Cecil Facer Youth Centre and the Sudbury Jail We think
that this gentleman did sufficiently conslder the qualifications
of prospective applicants from within this pool before the
decision was taken to narrow the area of search Further, the
Board 18 unable to conclude that Mr Roy's decision was made
pursuant to an improper business purpose so as to justify our
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intervention Without doubt, he wished to promote career
advancement in Northern Ontario That alone is not
objectionable Our decision on this aspect of the case would
have been otherwise if he had pursued such objectlve in the
absence of a suitable number of qualified applicants In
summary. the Board finds that the proper focus for the
competition was not diverted in this instance
As previously stated, the Employer argued that the grievor's
complaints could not be pursued through individual grievances as
he had not applied for elther of the vacancies The Employer
suggested that, as a consequence, the grievor had not been
affected in an immediate and tangible way It was further argued
that breach of an oral undertaking is inarbitrable The Employer
relied on the following awards in support of this position
Anderson, as cited earlier, Meades, 1322/88 (Kirkwood). Hall,
717/89, 867/89 (Roberts) , Pehlke, 791/85 et a1 (ROberts)
In response. the Union asserted that the grievor had indeed
been affected in an immediate and tangible way Counsel argued
that his interest in the competition was real rather than
hypothetical She emphaslzed that the grievor had consistently
expressed his interest in Northern positions, inCluding the
Bailiff positions which are the subject of this proceeding
Additionally, the grievor attempted unsuccessfully to have the
area of search expanded so that he could apply Counsel argued
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that the grievor's application was ultimately dlscouraged by Ms
Radley's unwlllingness to amend the postings We were urged to
I accept that he would have applied had she been otherwise
inclined
Given our disposition of this case, it is unnecessary to
make a final determination on this lssue However, we would be
disposed to reject the Employer's position In the Board's
judgment sufficient evidence exists to establish the grievor's
interest in the positions We accept that he never applied for
same as a direct consequence of Ms Radley's refusal to modify
the restriction on the area of search In view of this findin9J
in conjunction with the prior expression of interest in securing
a Northern position, we would conclude that he was personally
affected by the Employer's decision such that the issue could
properly be pursued through an individual grievance This
conclusion is premised on the unique set of facts existing In
this case
The real lssue before us is whether the Employer is estopped
from relying on) what would otherwise be, its management right to
restrict the area of search It was the position of the Union
that this question should be answered in the affirmative
Counsel submitted, in this regard, that a 11 of the preconditions
for the application of the doctrine were present 1n this case
Firstly, 1t was clear that Mr Watson represented that members of
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his unit could apply for the positions being created Counsel
noted that none of the Union witnesses could recall the
qualifiers referred to in the evidence of Mr Watson Secondly,
it was submitted that Mr Watson had the authority to make
statements as to what would occur ln respect of the Northern
Sa i 1 iff proj ect Counsel argued that it was reasonable for the
grievor to believe that his supervisor could speak on the subject
of which employees would be permitted to apply Thirdly, it was
submitted that the grievor did rely on the representations to his
detriment as he "let up" on his efforts to obtain another
position in the North Further, he did not act to bring hlmself
within a more limited area of search prior to the postings For
all of these reasons, the Board was asked to find that the
Employer could not rely on section 18 (1) of CECBA as a complete
defence to the grievances The Union relied on the following
authorities in support of its position Baars et al , 457/90
(Stewart) , H anwe 11 , 609/82 ( Swan) , Canadian National Railway
Company et al v. Beatty et al , 82 eLL C 14, 163 (Ont Div
Ct ) , Hookins, 373/86 (Springate)
In Baars, the grievances related to the contracting out of
work at the Ontario Science Centre The Employer there asserted,
inter alia, that the Board was without jurisdiction to deal with
the merits of the complaints In the course of considering the
objection, the Board stated
" in general, the matter raised in the
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grievances at hand is a matter which falls within the
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exclusive discretion of the Employer There is one
important exception to this general proposition
however That exception is where the Union is able to
establish that the doctrine of estoppel should apply so
as to restrict the Employer in the exercise of its
rights (page 7)
The Board subsequently found that the Employer was estopped from
exercising its rights to contract out employment except in
accordance with certain written representations given to the
Union In Hookins, the doctrine of estoppel was applied on the
basis of verbal exchanges between the grievor and management
personnel
For all of these reasons, the Union asked that we place the
grievor in one (1) of the positions posted Alternately, the
Board was requested to order a reposting effective as of March 5,
1990 together with an ancillary order that the grievor be allowed
to compete The Union submitted that any decision in the
grievor's favour vis a vis the positions should be retroactive to
the-date of the original competition Lastly, the Board was
urged to attach conditions to the rerun of the competition to
ensure that the incumbents did not receive undue advantage
In response, it was the position of the Employer that the
doctrine of estoppel was inapplicable to the instant dispute
The thrust of the Employer's argument was that any information
communicated by Mr Watson in May and June of 1989, was
preliminary, rather than definitive, in nature It was noted
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that the exchanges occurred at a time when the Northern Bailiffs
Office was simply an idea, the implementatlon of which had yet
to be confirmed The Employer's representative described the
situation in May, 1989 as being in a "state of flux She noted
that the ultimate headquarters for the Bailiff operation was then
also uncertain The decislon on that issue would impact on the
competition for Northern positions It was the Employer's
submission that Mr Watson could only communicate general
information about possibilities given the state of uncertainty at
the time Further, it was suggested that the grievor was well
aware of such uncertainty It was also argued that the Employer
could not be estopped from exerclsing a management right and that
any detrimental reliance needs to be established in respect to a
party to the collective agreement in contrast to an individual
Lastly, the representative for the Employer noted that the
grievor never communlcated with Mr Roy who was the person
responsible for the competitions in question The Board was
referred to the following awards ln support of these arguments
Bouchard et al , 1154/88, Brown, 0513/86 (Barrett) , Carter et
21 , 2291/86, 2292/86 (Knopf)
The Board accepts the reasoning in Baars to the effect that
the Employer may be estopped from exercising what would otherwise
be a strict management rlght Further, we think that the
representation, on which the estoppel is founded, may be made to
an individual covered by the collective agreement Indeed, the
21
" ",--
\
!
:0 I
Employer representative conceded, in response to a question from
thlS Chalrperson, that the grievor could have relied on a firm
representatlon from Mr Roy relating to the area of search
In our judgment, the most significant question surrounding
the applicabillty of estoppel is whether the grievor could
reasonably rely on the statements made by Mr Watson in May and
June, 1989 We are satisfied that the grlevor understood Mr
Watson to say that he could apply for positions which might
subsequently be created in Northern Ontario We are equally
confident, however, that Mr Watson's response was given in the
context of a developing and somewhat uncertaln situation The
uncertainties included the following ( i ) whether the positions
would ultimately be created in Northern Ontario. ( i i ) whether
positions would be located in Sudbury or North Bay, (iii) whether
the headquarters for the Bailiff operation would be located in
Toronto, North Bay or elsewhere. and ( 1 v) when any positions
created would be filled After considering all of the eVldence,
we conclude that a representation made almost one (1) year prlor
to the decision being contested, at a time that the Bailiffs Unit
in the North was just being contemplated, cannot serve to bind
the Employer's subsequent exerClse of its management rights The
Board further accepts that the grievor understood that the future
of the project was marked with some uncertainty and that its
implementation was still in the early stages Seen ln this
context. we conclude that the grievor could not reasonably rely
22
~
.
on Mr Watson's comments so as to restrict management's right to
determine the appropriate area of search In summari, we have
not been persuaded that a firm foundation exists for the
application of the doctrine of estoppel
This Board has considerable sympathy for the grievor's
predicament His wish to relocate to Sudbury is understandable
glven the unfortunate circumstances affecting his parents In
view of the fact that the Employer was well aware of these
circumstances, we question why more was not done in an attempt to
accommodate the grievor's interests The parties may wish to
consider the creation of a mechanism to permit lateral transfers
in this type of situation
For all of the above-reasons, the grievances are denied
Dated at Toronto Ontario this 12th day of, February,1992
Chairperson
23
",
AGREED STATEMENT OF FACTS
.
In the matter of an arbitration between the Ministry of
Correctional Services and Mr. John Ha~l, Provincial Bailiff,
Offender classification and Transfer Unit, GSB File No. 579/90
and 580/90
The Ministry and the Union agree that the following statement
accurately represents the facts in the above-noted grievance.
1 The grievor is currently employed by the Ministry of
correctional Services at the Offender Classification and
Transfer Unit, 185 Judson street, Toronto, as a
Provincial Bailiff.
2. The grievor's continuous service date is October 30, 1978.
3. The qrievor's principal address at the time of the grievance
was 62 Pringle Avenue, in the Town of Markham.
4. Attached as Schedule A, is a copy of the Opportunity
Bulletin for Competition No. CI-5050/91.
5.t.,. Attached as Schedule B, is a copy of the Opportunity
BUlletin for Competition No. CI-5051-91.
6 The grievor did not apply or submit a resume for the above-
noted competitions.
7. The qrievor was not granted an interview for either of the
above-noted competitions.
8 There were nine applications/resumes submitted by classified
employees for competition No. CI-5050/90 (Cecil Facer) r all
nine applicants were granted an interview
9. There were eight applications/resumes submitted by
classified employees for competition No C!-5051/90
(SUdbury Jail), all eight applicants were grantea an
interview.
.
10 As of June 1, 1991, the grievor's address is
55 Cherrywood Drive, Sudbury, ontario.
II. Attached as Schedule C, is the grievance filed by the
grievor on March 21, 1990 pertaining to competition
No. 5050/90.
12. Attached as Schedul,e 0, is another grievance filed by the I
grievor on March 21, 1990 pertaining to Competition
No. cr-S051j90.
13. Attached as Schedule E, is the Ontario Public Service Manual
of Administration policy respecting the area of search.
14. Attached as Schedule F, is the Ministry of Correctional
services Personnel POlicy and procedures respecting the area
of search.
-- ----~-- - --- --~- - _~__~_r~~T'""_ ___..._.--------,..,.,-..,....,....-----L-_
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"
~ Ontario
Manual of S&.ui.u1l E
Administration POLICY
~ (
Staffing
THE STAFFING PROCESS (continued)
.
.
.. AREA OF SEARCH
Definitions
.. Area of
Search" The area deemed necessary by management to attract eligible
and qualified eandidates for a vacancy. .
"Restricted
Competition" A competition that is limited to:
. civil servants;
~ . employee.s of those agencies which have a reciprocal
staffing agreement; and ("
. released employees to whom Article 24 of the Working
Conditions Agreement and page 5-57-3 of this volume
apply.
"Open A competition to which civil servants. uncl.issified staff.
Competit1on~
Crown employees and the public may apply.
NOTE: Application of these definitions may change due to
.7 ~uuating circumstances in lfhich ease ministries will be
so advised by the Civil Service Commission.
~ Considerations
in Determining The following shall be considered in determining a reason-
Area: able area of searcb:
'. , all relevant Acts. policies. procedures and programs
:: .
1< relating to staffing actiorta; .
t''= . C
I . tbe size of the c:andidate population required to
identify not less than tbree qualified candidates;
. the need to provide career opportunities for civil
servants,
. the need. when recruiting outside the ci9il service.
to ensure that civil servants are given opportunities
to apply and to be considered;
. the urgency and cost in satisfying the staffing needs
of the ministry program.
Applicants and
Area of Search Only applicants from within the designated area of search
r - shall be considered.
(--... , --
\
, i )
, ; ~~
,"", ~ Ministry of
... W Corr~ctional
ServIces Personnel Subjed. Number
Ontario
( Policy and Procedures PER 02 01 01
Section Date
Recruitment Mar 1991
Subject Page
.
Area of Search I
Reference Human Resources DIrectives & GUidelInes
Purpose To attract sufficient numbers of eligible and qualified
candidates for a vacancy
Policy / Recruitment below AM-I? Level
Procedure
Managers, in oonsultation with RP ~ will select area of
search based on g,ovemment and emreloyment e<J.uity
initiativesf guidelines and their know edge of available
resources.
Provided that due oonsideration IS given to: these guidelines
and requirement to identify at least 3 elIgible candidates, a
( manager can select from the following geographical areas of
search:
a) local- employees worklDg in a speClfic institution/office
b) employees whose prinCipal residence is within 40 kID of
work location
c) regional
I
! d) ministry-wide .
I
e) OPS-wide..
.
In addition to speCIfymg geographical area of search. a
competition may be designated as fallIng Wlthm 1 of the
following 3 categones:
-1. 'Open' - competItion is 'open' to the general publIc and
all applications should be consIdered. However,
postings of the competition notice may be hmited
2. Restricted to classified employees.
,~--.. 3. Restricted to classIfied/unclassIfied employees.
( <