Loading...
HomeMy WebLinkAbout2006-0539.Major.07-11-08 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 IN THE MATTER OF AN ARBITRATION Under Nj ~ Ontario GSB# 2006-0539 UNION# 2006-0499-0023 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Maj or) - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Marilyn A. Nairn Laurie Kent Koskie Minsky LLP Barristers and Solicitors Gordon Fitzgerald Counsel Liquor Control Board of Ontario November 6,2007. Union Employer Vice-Chair 2 Decision A hearing in this matter was held on November 6,2007 in Ottawa. The grievance asserts that the LCBO (the "employer") violated the collective agreement by failing to award the position of Quality Control Logistics Representative to Mr. Major (the "grievor"). The incumbent in the position was provided notice of the hearing but did not attend. The employer raised a preliminary argument as to the arbitrability of the grievance. I heard the evidence and representations of the parties, following which I gave an oral ruling dismissing that objection. Other preliminary matters were then dealt with. This decision sets out the reasons for the oral ruling and records those other matters. The facts with respect to the arbitrability issue were not in dispute. The employer posted a job notice on February 6, 2006 for the position of Quality Control Logistics Representative. The position operates out of one of the employer's warehouses, but reports to Quality Control at the Head Office in Toronto. The posting closed on February 17, 2006. There were two applicants, the grievor and the incumbent. There was no dispute that the grievor is the more senior employee. There was also no dispute that Article 2 1.5 (a) of the collective agreement establishes a 'threshold test" in the circumstances. That is, the grievor need establish that he is qualified for the position in order to be successful. It is the position of the employer that the grievor is not qualified for the position. The union disputes that assertion. In the circumstances, the union is seeking a remedy that would place the grievor in the position should it be successful in the grievance. On February 17, 2006, the grievor was employed in the classification of Warehouse Worker 3 ("WW3"). The posted position is classified as a Warehouse Worker 4 ("WW4") position and is a higher- rated position. The collective agreement provides that employees move up classifications over time based on achieving successful performance ratings. Pursuant to that process, the employer determined that the grievor would move to the WW 4 classification. The performance appraisal process was conducted on March 8, 2006. The re-classification was approved on March 24, 2006 and was made retroactive to March 1,2006. The incumbent was in the same circumstances as the grievor. However his appraisal was delayed until April, 2006. The incumbent was awarded the position on April 18, 2006. The grievor was screened out of the competition in early March 2006. As a result, this grievance was filed on March 20, 2006, prior to the grievor receiving notice of being moved to the WW4 3 classification. There was no dispute that Article 21.5(a) of the collective agreement provides that employees may only post for a position that represents a "promotion". There was no dispute that, once the grievor was moved to the WW 4 classification he would not be entitled to use his seniority to obtain another position within the WW 4 classification. The parties were agreed that such movement constitutes a transfer and that the collective agreement does not contain language regulating transfers within a classification except for Article 21.4(c), which appears to contemplate transfers in the context of the opening of new facilities. While the employer may accommodate transfer requests in various circumstances, the collective agreement does not provide any additional framework for such activity. It is also the case that the employer posts to fill specific positions within a classification. It does not post for promotion to the classification. It was the position of the employer that the grievance was not arbitrable on the basis that the grievor was not eligible to be considered for the position. At the time of filling the position, the employer asserted, the grievor was a WW 4. As such, movement to this position would constitute a transfer, not a promotion. The collective agreement did not, argued the employer, allow him to utilize his seniority in that manner. It was the position of the union that at the time of the posting, the grievor's application represented a request for a promotion and he was therefore eligible to apply for the posting and to be considered for the position. Any change in status after the fact, argued the union, was irrelevant. I was referred to and reviewed the following cases: Hydro-Quebec and Syndicat Professional des Ingenieurs de I'Hydro-Quebec, [1986] 1 C.L.AS. 21 (Frumkin); Re Corporation of the City of Windsor and Canadian Union of Public Employees, Local 543, (2002) 113 L.AC. (4th) 38 (Saltman); W S Tyler Canada and US WA., Local 6399, [1992] 26 C.L.AS. 380 (Levinson); Re United Steelworkers, Local 2901 & SF. Bowser Co. Ltd., (1955) 6 L.AC. 24 (Forsyth); Re Brant County Board of Education and C. UP.E., Local 282, [1995] 37 C.L.AS. 373 (Kilgour); Re Premdor Inc. and United Brotherhood of Carpenters and Joiners of America, Local 1072, (2001) 98 L.AC. (4th) 314 (Hinnegan); Re Letter Carriers' Union of Canada and Office & Professional Employees' International Union, Local 222, (1976) 11 L.AC. (2d) 211 (Curtis); and Canadian Broadcasting Corp. and National Association of Broadcast Employees & Technicians, (1992) 28 L.AC. (4th) 74 (Picher, M.). My reasons for ruling that the grievance was arbitrable are summarized following. The employer argued, and the union did not dispute, that the grievance was only arbitrable if the job represented a promotion. The issue therefore was whether the job represented a promotion for the grievor. One must determine the grievor's status and, in the particular circumstances, that determination depends on the appropriate time for that assessment. Thus, the employer argued that the grievor's status must be 4 considered as of the time the decision to fill the job was made in April 2006. The union argued that the grievor's status must be determined at the time ofthe posting. I rejected the employer's position. Article 21.5 (a) ofthe collective agreement states: Where employees are being considered for promotion, seniority will be the determining factor provided the employee is qualified to perform the work. The collective agreement is silent regarding the specific date for assessing a candidate's status. The collective agreement simply references the circumstance of it being a "promotion". The words "being considered for a promotion" presuppose a determination that it is a promotional opportunity, thus inherently presupposing a determination of the employee's status. That is, the question of status is determined prior to any consideration being given to the application, and logically therefore, before any decision is made. The determination of an applicant's status must depend on a fixed point in time. One simply cannot run an appropriate competition process based on potentially and/or continually changing circumstances that depend on an unknown point when the employer chooses to engage in its decision- making. It is not necessary for me to determine whether the appropriate date is the date of application or the closing date of the posting as the grievor applied for the position on February 17, 2006, the closing date of the posting. The date can be no later than the closing date of the posting. A fixed time frame provides a reference point for both the employee and the employer. The posting period provides a time frame during which applications will be received. Applications received beyond the closing date will not be considered. Knowledge of the posting period enables an employee to determine whether she/he is eligible to be considered for the position and thereby make an appropriate decision whether or not to apply. An employee cannot be expected to anticipate or guess as to their status at some unknown future date when the employer chooses to make a decision. Similarly, the fixed posting period also acts to encourage an open and fair process. For example, having determined the pool of applicants following the closing date of a posting, were an employer to then delay its decision-making in order to provide an opportunity for a particular candidate to be given experience relating to the position, and then rely on that experience in assessing the candidates, that employer would likely find itself in the position of being challenged for conducting an inappropriate process, having taken such latterly obtained experience into account. An employer argument that it was appropriate to assess experience as of the date of its decision-making in those circumstances would in all likelihood fail. In this case, the grievor had been advised that he would not be considered for the position 5 and the grievance had already been filed by the time the decision to move him to the WW 4 classification had even occurred. The case law referred to by both parties is entirely consistent with a view that the posting period is the relevant time frame for determining employee status. The awards in City of Windsor, supra, Brant County, supra, and Letter Carries Union of Canada, supra, all reflect cases that determined that the employee's eligibility to be considered for posted positions was based on their status at the time of the posting. For example, in City of Windsor, supra, it was found that a discharged employee, reinstated pursuant to minutes of settlement after the closing of a posted period was properly considered to have been an external candidate for the position. The individual did not have the status of "employee" at the time of the posting. Similarly, in Canadian Broadcasting Corp., supra, the grievor was denied access to early retirement incentives offered by the employer in early January 1991. It was found that the grievor had retired effective December 31, 1990 and was therefore not eligible for such incentives, as he no longer held the status of "employee". The Hydro-Quebec, supra, award summarizes the concern. In that case, the grievor attempted to rely on his status as a surplus employee to obtain a transfer. It was found that the "surplus" status was only acquired upon receipt of the written notice and after the closing of the posting period. The arbitrator commented: [19] ...Until that decision which will make reference to its effective date issues, the employee for purposes of rights and obligations under the Collective Agreement continues to be the holder of his post.. . .. [20] ... It would be quite impractical to expect rights and obligations which the Collective Agreement contemplates as attaching to the status of an employee to remain uncertain where changes are taking place. . . . [22] The Tribunal has not ignored an argument advanced by Union counsel to the effect that the status of competing applicants be considered not at the date of the termination of the posting but at the date of selection. ....It does, however, see a difficulty in this approach. It must not be forgotten that rights and obligations which characterize the selection procedures affect not only the Company in its relationship with its employees. Also concerned are competing applicants and their rights with respect to each other. In effect, the selection process is a competition. All candidates must be evaluated upon the basis of the same criteria and it simply cannot be permitted that the Company be in a position to modify or bend the rules in midstream. The difficulty in the approach suggested by union counsel rests in the fact that the company might accelerate or delay the date for selection so as to enable certain candidates to gain advantage over others by reason of a foreseen change in status. In the same vein, employees who wish to apply must know where they stand. Their entitlements during a period of posting should not be allowed to depend upon when the Company, in its discretion, might choose to make the selection. ... As far as [the Tribunal] is concerned, an employee's rights to a position which compete with the rights of others must be assessed and evaluated as they existed at the termination of the posting. [emphasis added] 6 To the extent that the union made reference to the incumbent, it was not to assert that there had been discriminatory treatment as that allegation had been made in Canadian Broadcasting Corp., supra. The union was noting the logical inconsistency in the employer's argument. The incumbent was also eligible to move up to a WW4 effective retroactively to March 1,2006 and, on the employer's argument, would therefore equally have been ineligible for the position as of April 2006 if that was the appropriate date on which to determine status. The fact is, neither employee could know that their status might change following the closing of the posting. More to the point however, in this workplace, postings reflect specific positions within a classification. An employee is entitled, by the terms of the collective agreement, to utilize their seniority to seek to obtain a particular position pursuant to a promotion, rather than wait for a possible (or even likely) upgrade to the same classification but with little or no opportunity to seek a particular position within the classification. Given the limited transfer language in the collective agreement, the promotion opportunity becomes significant for obtaining preferred or specific positions. To argue that the grievor has been classified as a WW 4 following the closing of the posting period and is therefore ineligible, denies this opportunity to employees to obtain a position of their choice. The grievor was classified as a WW3 as of the date of the closing of the posting period. As such, his application for the position represented an application for a promotional opportunity to the position of Quality Control Logistics Representative, classified as a WW 4 position. He was therefore eligible to apply for the position. The grievance, asserting that the employer violated Article 21.5(a) of the collective agreement, is therefore arbitrable. The preliminary objection is therefore dismissed. * The union then made a request for production of documents relating to the competition process. Having heard from the parties, I made an order for production and hereby record that order. The employer is directed to produce forthwith to union counsel any documents and/or materials relating to the job posting for Quality Control Logistics Representative including but not limited to, tests, test results, reports and/or notes of interviews, the incumbent's personnel file, and any correspondence between the employer and the incumbent between February 1 and April 30, 2006, whether electronic or otherwise, that bears any relation to the job and/or the job posting. I hereby direct the union to keep the incumbent's personnel file confidential, and order that it be utilized solely for the purpose ofthis hearing. 7 Further to the agreement of the parties, I hereby direct the union to provide written particulars to the employer within a reasonable time prior to the next day of hearing. Any other preliminary matters, should they arise, are to be dealt with by contacting the Board for purposes of convening a telephone conference call with the Vice-Chair. Three days of hearing will be set in consultation with the Registrar of the Board to hear the parties' evidence and submissions with respect to the merits of this grievance. Dated at Toronto, Ontario this 8th day of November, 2007.