HomeMy WebLinkAboutGullett 18-01-09Between:
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IN THE MATTER OF AN ARBITRATION PURSUANT TO
THE LABOUR RELATIONS ACT, 1995
NIAGARA PENINSULA CONSERVATION AUTHORITY
("the Employer" or "the Corporation")
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 217
("the Union")
RE: DEBORAH GULLETT JOB POSTING GRIEVANCE
ARBITRATOR: Peter F. Chauvin
APPEARANCES FOR THE EMPLOYER:
Ted J. Kovacs
Counsel
David Barrick
Senior Director, Corporate Services
Misti Ferrusi
Human Resources Generalist
APPEARANCES FOR THE UNION:
Daniel Anisfeld
Counsel
Tami McGowan
Union Representative
Deborah Gullett
Grievor
Hearing concluded on December 11, 2017
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FAM ell 11
[i] The limited issue in this case is whether the Employer should have granted Deborah Gullett ("the
Grievor") an interview for a job posting she applied for in the classification of Administrative Assistant.
The Employer submitted that the Grievor was not entitled, under the language of their Collective
Agreement, to apply for the job posting, so it was not required to grant the Grievor an interview.
[2] The issue is not about the Grievor's qualifications. It is not about whether the Grievor was
qualified to apply for the posting, or was qualified to be granted the position. Rather, the parties agreed
that the limited issue to be considered is whether, under the language of the Collective Agreement, the
Grievor was entitled to apply for the job posting, and to be granted an interview.
[3] The background to this matter is as follows. Prior to May 2016 the Employer had two
Administrative Assistant positions. The Grievor had been the Administrative Assistant — Operations since
at least May 2012. Irene Bradnam was the Administrative Assistant - Watershed Management.
[4] Around May of 2016 the Employer decided that it wanted to hire another Administrative
Assistant, who would be the Administrative Assistant-1~inance and Corporate Services. The parties agree
that all three of these positions fall within the same classification of Administrative Assistant.
[S] On May 6, 2016 the Employer emailed to its employees a job posting for the new position of
Administrative Assistant - Finance and Corporate Services. The Employer also advertised this job to
persons outside of its workplace.
[6] The Grievor was the only bargaining unit member who applied for this job posting. Numerous
persons from outside of the workplace also applied for this job posting. The Grievor was not granted an
interview for the job posting. A number of the persons from outside of the workplace were interviewed
for the job posting. The job posting was ultimately granted to a person from outside of the workplace,
Gina Shaule, who was hired to fill the position. Ms. Shaule participated in this hearing.
[7] On June 17, 2016 the Union filed its Grievance claiming that the Employer had violated the
Collective Agreement by, among other things, not granting the Grievor an interview for the job posting.
[$] On June 24, 2016 the Employer responded by e-mail to the Grievance, providing a number of
reasons for why it did not grant the Grievor an interview for the job posting.
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[9] At the hearing, the Employer did not advance a number of those reasons. Rather, at the hearing
the Employer relied primarily on its argument that at law there is a presumption that "an employee has no
claim to any particular job in a [their own] classification, unless the collective agreement provides to the
contrary". The Employer submitted that this principle applies to both lateral transfers requested by the
employee, and to applying job postings. The Employer submitted that its Collective Agreement does not
rebut this presumption by providing that employees can apply for a job posting within their own
classification. As such, the Employer submits that the Grievor was not entitled to apply for the job
posting, or to be granted an interview.
[10] The Union opposed this argument, on two grounds. First, the Union submitted that no such
presumption at law exists, and that rather the terms of the collective agreement simply govern, and that in
this case they specifically grant the Grievor the right to apply for the job posting in her own classification,
and to be granted an interview. Second, and in the alternative, the Union submitted that the
responsibilities and job functions of the two Administrative Assistant positions are sufficiently different
that the Grievor was entitled to apply for the job posting, and be granted an interview.
[11] The focus of the parties' submissions was primarily on these Iegal arguments regarding job
postings. As such, I will now consider the parties' submissions regarding this job posting law. However, I
will first set out the following provisions of the Collective Agreement that the parties relied upon.
The Collective Agreement
Article 8 —Management Rights
8.01 The Union acknowledges that it is the exclusive right and responsibility of the
Corporation to:
(a) maintain order, discipline and efficiency;
(b) select, fire, direct transfer, promote, layoff;
(d)generally to determine, in the interest of the efficient operation and highest standard of
service, the number of personnel required at any one time, the hours of work, starting and
stopping times, work assignments, work schedules, methods of performing the work, the
locations of the work, the number of shifts, the functions performed, procedures and
equipment used, quality and quantity standards, the qualifications to perform any particular
job and the use of improved methods and equipment in all aspects according with its
responsibilities;
8.03 The Employer agrees these functions in Article 8 will be exercised in a manner
consistent with the provisions of this agreement.
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Article 16 - Job Vacancies and Transfers
16.01 Where a vacant occurs in the bargaining unit or additional employees are required,
the following factors shall be considered...
16.03(a) Vacancies for a job within the bargaining unit and in which the Employer intends
to fill shall be posted for a minimum of five (5) consecutive days. Bargaining unit employees
will be notified via e-mail of any postings. If no suitable internal candidate applies, the job
may be filled by a new hire...
16.03(b) The posting shall show the classification vacant, the requirements of the job,
wages and wage skill, office location, division, duties presently assigned.
16.04(a) An employee ma apply fora posted job as designated on the posting, setting out
in detail, their qualifications for the job. Consideration for the em to ee will be made if the
employee has the qualifications of the job posting.
16.08 An employee will not be permanently transferred from one office to another within
the NPCA without prior written notice...
The Job Posting Law
[12] As stated above, the Employer submitted that there is a presumption at law that an employee is
not entitled to apply for a job posting for a position in their own classification, unless the collective
agreement rebuts that presumption by containing language that specifically allows employees to apply for
such job postings in their own classification. In support of this, the Employer relied upon the following
three cases, and the cases referred to in these cases: Ascolectric Ltd. and International Union of
Electrical, Radio and Machine Workers, Load 553 (1980), 26 L.A.C. (2d) 390 (J.F.W. WeatheriIl);
Corporation of the City of Victoria and Canadian Union of Public Employees, Local 50 (1982), 2 L.A.C.
(3d) 368 (R. Brown), and; Ontario Secondary, School Teachers Federation v. Barratt Haldinrand Norfork
Catholic District School Board (Posting Issue Grievance) (2014), 245 L.A.C. (4th) 302 (J. Hayes).
[13] The Union submitted that the Employer's interpretation of the law should not be accepted,
because there is no such presumption that applies to job postings, and that rather, the issue is simply
whether the collective agreement language does, or does not, allow employees to apply for job postings in
their own classification. In support of this, the Union relied upon the following two cases: Spar
Aerospace Ltd. and United Automobile Workers, Local 112 (1985), 20 L.A.C. (3d) 344 (E.B. Jolliffe) and
Messier-Doivty Inc. and IAMAIV, Local 905 (Godin), [2014] O.L.A.A. No. 78 (L. Davie). I will now
review these cases.
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[14] In Ascolectric(1980)(Weatherill) the job posting language stated that [underlining added]:
The company will post a notice of a job vacancy ... providing an opportunity to those for
whom the posted job represents a promotion to apply".
[15] Based on this specific language, which requires that the job posting must represent a promotion to
apply, Arbitrator Weatherill correctly ruled that the employee was not entitled to apply for the job
posting, because he found that the posted job did not represent a promotion for the employee.
[16] Given that the Collective Agreement in this case does not state that an employee can only apply
for a job posting if the posted job represents a promotion, Ascolectric is of little assistance in this case,
except that Ascolectric supports the principle that the collective agreement language must be examined to
determine whether it does, or does not, allow employees to apply for a particular job posting. Ascolectric
does not state that there is any presumption at law that an employee is not entitled to apply for a job
posting for a position in their same classification, unless the collective agreement rebuts that presumption.
[17] For support for that presumption, the Employer relied primarily upon City of Victoria (1982)(R.
Brown), which pertains to a storekeeper position. The storekeeper position was in the Fitter 11
classification. There were about eight other positions in the Fitter It classification. The employee in the
storekeeper position was promoted to be a foreman. Rather than post the storekeeper position, the
employer transferred another Fitter R employee into the storekeeper position, and then posted another
position within the Fitter II classification. The union grieved, stating that the employer had to post the
storekeeper position, and had to give the employees, including the other employees within the same Fitter
II classification, the opportunity to bid for and obtain the storekeeper position. The storekeeper position
was viewed by the employees as being one of the preferred positions within the Fitter 11 classification.
[18] It is significant to note that the issue in Cite of Victoria was whether the employer had the right to
laterally transfer another Fitter It employee in to the Fitter II storekeeper position, and to not post the
storekeeper position. That is a different issue than the issue in this case. In this case, the Employer did
post the Administrative Assistant position, and the issue is whether the Grievor was entitled to apply for
that posting.
[19] Arbitrator Brown readily acknowledged that if the collective agreement allows an employee to
apply for a lateral transfer within the same classification, the employee is entitled to do so. Having said
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that, Arbitrator Brown then analysed the following Article 9.01, and concluded that it did not entitle the
employees to "move within a classification':
9.01 In all cases of promotion ... or in filling vacancies for new positions created, and in all
cases of decrease or increase of working forces, the following factors shall be considered...
[20] As such, Arbitrator Brown dismissed the grievance, meaning that the employer had the right to
laterally transfer another Fitter II employee in to the storekeeper position, being only a transfer of a work
assignment within the Fitter 11 classification, and therefore did not have to post the storekeeper position.
Again, that is a different issue than the issue in this case.
[21] However, in coming to this conclusion, after having reviewed numerous cases pertaining to job
postings and lateral transfers, Arbitrator Brown makes the following statement at paragraph 11:
The prevailing arbitral opinion is that an employee has no claim to any particular job in a
classification, unless the contract provides to the contrary.
[22] The Employer relies upon this passage and submits that it supports that there is an initial
presumption at law that an employee is not entitled to apply for a job posting for a position in their same
classification, unless the collective agreement rebuts that presumption. However, that passage comes from
a case that was dealing with a lateral transfer, and the passage is non-specific, and appears to pertain to
lateral transfers more than job postings. Also, to the extent that it can be said that it stands for the
principle that there is a presumption with regard to lateral transfers or job postings, it also says that that
presumption can be rebutted.
[23] The Employer submitted that Brandt Haldimand (2014) (Hayes) supports that such a presumption
exists, noting that the above statement from City of Victoria is quoted at paragraph 49 of Brandt
Haidimand. However, for the following reasons, Brandt Haldimand stands more for the principle that the
collective agreement language must simply be examined to determine what rights the employees have.
[24] As with City of Victoria, in Brandt Haddimand the issue was whether the position had to be
posted. Arbitrator Hayes considered the following Article 18.3(1) [underlining added]:
18.3(i) When an applicant who has completed the probationary period and who is not
having overall performance difficulties in his/her current position (as confirmed by a
performance evaluation) applies within his/her specific job classification, appointment will
be based on seniority...
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[25] Arbitrator Hayes stated that the approach taken by the School Board, of filling the vacancies
through transfers rather than posting the vacancies, appeared to him, on a practical level, to make sense.
However, he stated that ultimately the language of the collective agreement must govern. With regard to
whether an employee has the right to apply for a vacancy within their same classification, Arbitrator
Hayes considered the above passage from City of Victoria, and noted that there are cases that support the
employer's preference "to transfer suitable employees to open positions without the delay, cost,
inconvenience and uncertainty of outcome that may come with a job competition". However, Arbitrator
Hayes also states that "it is possible however for unions to negotiate restrictions on the exercise of such
employer preference - as all the case law suggests", and concludes that the union had done this through
Article 18.3(i), ruling that Article 18.3(i) does specifically give employees the right to apply for positions
"within his/her specific job classification". As such, Arbitrator Hayes ruled that this language governed
and that the School Board had violated its collective agreement when it did not post the position.
[26] In Spar Aerospace (1985)(JoIIiffe) the employer relied upon City of Victoria and numerous other
cases for the principle that there is a presumption that an employee is not entitled to apply for a job
posting in their same classification. In response to this, Arbitrator Jolliffe reviewed many of those cases
and ultimately states, at paragraph 37, that:
What emerges is that many of the cases cited relate to very different issues and fail to
support the rather meaningless statement that "an employee has no claim to a particular job
classification, unless the contract provides the contrary". The test is not whether the contract
provides something to the contrary; the test is what does the contract actually require?
[27] Arbitrator Jolliffe also states at paragraph 49 that "each and every case must be decided upon the
precise language of the agreement by which the parties are bound, a fundamental principle occasionally
overlooked".
[28] Noting that the job posting language stated that "an employee who has attained seniority is free to
apply for any posted job", Arbitrator Jolliffe ruled that the language of the collective agreement allowed
the employee to apply for a position within his own classification.
[29] Finally, the same approach to this law was taken in Messier-Dowly(2014)(Davie). The employer
had posted a job, and the issue was whether an employee was entitled to apply for that position in his own
classification. Again, the employer relied upon Cite of Victoria and other similar cases. Arbitrator Davie
distinguished Cite of Victoria and other cases on the basis that those cases pertained to whether the
employer had to post a position, as opposed to whether an employee was entitled to apply for a position
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that had already been posted. With regard to whether an employee is entitled to apply for a posted
position in their own classification, Arbitrator Davie stated that: "That issue must be answered having
regard to the language of the collective agreement". Arbitrator Davie then examined the language of the
collective agreement extensively to assess whether it entitled employees to apply for posted positions
within their own classification. In doing so, Arbitrator Davie did not apply any presumption. The most
significant language was Article 9.07(b), which stated that "any employee may apply" for a job posting.
Arbitrator Davie concluded that the employee could apply for the job posting in his own classification.
ANALYSIS AND RULINGS
[30] Having regard to all of these cases, I conclude that the analysis is whether the language of the
Collective Agreement does, or does not, allow the Grievor to apply for the posted position. I find that it
does, for the following reasons.
[31] The Employer posted the position pursuant to Article 16.03(x). Most importantly, Article
16.04(a) states that "an employee may apply for a posted job". This is a very broad statement. There are
no restrictions placed upon the employee, or the posted job. It states "an" employee. This could be any
employee. Also, it does not say that the posted job has to be a promotion for the employee, or that the job
cannot be within the employee's current job classification. Nor are there any such restrictions found
elsewhere in the Collective Agreement regarding who can, or cannot, apply for any particular job posting.
[32] Also, Article 16.04(a) goes on to state that "Consideration for the employee will be made if the
employee has the qualifications of the job posting". The parties have agreed that they are not considering
any issues regarding the Grievor's qualifications at this point. Article 16.04(a) also supports that the
Grievor should have been given an interview, so that she could have been given "consideration" for the
job posting.
[33] Finally, 16.03(x) also states that "If no suitable internal candidate applies, the job may be filled by
a new hire...". This also lends some support that the Grievor, being an internal candidate, should have at
least been given an interview, before the Employer gave interviews to a number of persons from outside
of the workplace, and then granted the position to one of those persons. I find that together, all of these
provisions granted the Grievor a right to apply for the posted position, and to be considered and granted
an interview for the posted position.
[34] I do not accept the Employer's submissions that there are restrictions in the collective agreement
that preclude the Grievor from applying for the job posting. First, the Employer noted that the
management rights provisions state that the Employer has exclusive right and responsibility to maintain
order and efficiency, to select, direct and transfer employees, and to generally determine, in the interest of
efficient operation, work assignments. However, the Union noted that the management rights provision
concludes with: "The Employer agrees these functions... will be exercised in a manner consistent with
the provisions of this agreement". The general statements contained in the management rights provisions
cited by the Employer must be exercised in a manner consistent with the more specific entitlements
contained in Articles 16.03(a) and 16.04(a), and that this means that the specific rights of the employees
contained in Articles 16.03(a) and 16.04(a) are not usurped by the management rights provisions.
[351 Second, the Employer noted that Article 16.08 states that "An employee will not be permanently
transferred from one office to another within the NPCA without prior written notice...", and submitted
that it is only this specific requirement to give "prior written notice" that overrides management's rights
regarding transfers and job postings, and that otherwise management rights apply with regard to job
postings. Again, I find that with regard to this job posting, the specific entitlements contained in Articles
16.03(a) and 16.04(x) apply, and not management rights.
[36] Third, the Employer also submitted that Article 16 does restrict employees from applying for job
postings within their own classification. The Employer noted that Article 16.03(b) states that: "The
posting shall show the... division, [and the] duties presently assigned". The Employer submitted that by
requiring that the division and the duties presently assigned be included in the job posting, the parties
were agreeing that employees could not apply for a job posting that would have the same or similar
duties, in the same division. I do not find that this interpretation can be sufficiently drawn from Article
16.03(b) so as to override the more clear Ianguage of Article 16,04(a). It is equally plausible that the
parties, through Article 16.03(b), simply wanted to ensure that the job posting would be sufficiently clear
with regard to "the classification vacant, the requirements of the job, wages and wage scale, office
location, division, duties presently assigned", so that persons would be sufficiently informed of the
position that they could make an informed decision as to whether they wanted to apply for it.
[37] Also, this is the parties' first Collective Agreement, constituted by a Memorandum of Settlement
dated November 3, 2015. The job posting was on May 3, 2016. No witness gave negotiating history, past
practice or extrinsic evidence that would assist with the interpretation of the Collective Agreement. As
such, my interpretations above are based upon the plain language of the Collective Agreement.
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[38] Given that I have found that the language of the Collective Agreement allows the Grievor to
apply for the posted position in her own classification, I do not need to address the Union's alternative
argument: that the responsibilities and job functions of the two Administrative Assistant positions are
sufficiently different that the Grievor should have been allowed to apply for the job posting. AIthough
much evidence was given at the hearing regarding this alternative argument, since the Grievor is entitled
to apply for a job posting within her own classification, this evidence need not be reviewed.
[39] To summarize, I find that the Grievor was entitled to apply for a job posting within her own
classification, and that the Employer was required to consider the Grievor's application, and in doing so
had to grant the Grievor an interview. The Union has requested that if I conclude that the Grievor should
have been granted an interview, that i order that the Adininistrative Assistant - Finance and Corporate
Services position be re -posted, so that employees, including the Grievor, if she wishes, can apply for it,
and be considered and granted an interview. I hereby order the Employer to re -post the Administrative
Assistant - Finance and Corporate Services position, not later than January 31, 2018, or as may be
otherwise ordered by me, and to grant the Grievor an interview for that job posting, if she applies for it.
[40] Finally, the Employer's June 24, 2016 e-mail stated that allowing the Grievance would result in a
violation of the Employer's Recruitment Policy 1-1.2 - Employment of Relatives. This issue was
addressed at the hearing. However, by not granting the Grievor an interview, the Grievor was not given
an opportunity to address this issue through the job posting process. I have found that the Grievor is
entitled to re -apply for this position, through the re -posting, and to be granted an interview. This issue
regarding the Recruitment Policy 1-1.2 does not prevent that re -posting. Also, I am not satisfied that the
Employer's concerns regarding the Recruitment Policy 1-1.2 amounted to a sufficient ground to not grant
the Grievor an interview, especially since it appears that the Grievor's relative was leaving the workplace
around the time that the Administrative Assistant - Finance and Corporate Services position was being
filled. Recruitment Policy 1-1.2 can be considered upon the re -posting of the position, subject to the
circumstances that exist upon the re -posting.
Signed at Toronto on January 9, 2018,
Peter F. Chauvin, Arbitrator