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HomeMy WebLinkAbout2005-3002.McDonald.08-05-26 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2005-3002 UNION# 2005-0722-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McDonald) Union - and - The Crown in Right of Ontario (Ministry of the Environment) Employer BEFOREVice-Chair Loretta Mikus FOR THE UNION Jim Gilbert Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Jennifer Richards Counsel Ministry of Government and Consumer Services HEARING April 24, 2008. 2 Decision The grievor, Cheryl McDonald filed a grievance in 2005 alleging she had been improperly denied an interview for a posted position. That grievance was settled by way of Minutes of Settlement that included an agreement that she would be interviewed for an anticipated vacancy in June of 2007. This award deals with her allegation that there has been a breach of that settlement. The parties provided me with the following statement of undisputed facts: 1.The grievor filed a grievance dated October 3, 2005 in which she alleged she was denied an interview for an Environmental Officer 5 (?EO5?) position with the Program Services Section of the Ministry of the Environment. 2.The Parties entered into a negotiated settlement to resolve the above mentioned grievance on April 2, 2007. The Grievor signed the settlement. Mr. Jim Gilbert signed the settlement on behalf of the Union and Ms. Nathalie Osipenko signed on behalf of the Ministry. 3.As part of the settlement dated April 2, 2007, the Employer was to post an upcoming EO5 position (due to a maternity leave expected to commence in June 2007). The area of search was to be limited to the OPS. The Grievor was to be granted an interview for the position. 4.The job advertisement was posted on August 10, 2007 and closed on August 31, 2007. 5.The current incumbent?s last day in the office was July 30, 2007and her maternity leave began on August 27, 2007. 6.The area of search for the competition was restricted to the OPS. The position also provided for a flexible work location wherein the incumbent could reside in any Northern Region Office or other regional office. 7.The interviews for the EO5 competition were conducted on September 28, 2007. Pursuant to the settlement, the Grievor was granted an interview for the competition. 8.The established threshold for the competition was 70%. The Grievor scored 50% (52 out of 103 marks) and therefore was not deemed qualified for the position. 9.The interviews were evaluated and the candidates? reference checks were completed by October 12, 2007. 10.The grievor was advised of the results of the competition on November 7, 2007. 11.The Grievor took resume writing training in Toronto at the Center for Leadership and Learning on October 15, 2007. Jim Gilbert, for the Union, took the position that there has been a fundamental breach of the settlement in that both parties made promises that the Ministry has failed to keep. The grievor agreed to withdraw her grievance. The Ministry agreed that the area of search would be restricted to the public service. That was an important issue to the grievor since it narrowed the field of candidates thereby increasing her chances of success. The job has traditionally been stationed in 3 the Thunder Bay office and there was no indication throughout the mediation that the Ministry intended to change that location of the job. Instead the Ministry posted the position location as flexible and applicable to any Northern or Regional Office including Thunder Bay, Kenora, Sault Ste Marie, North Bay, Sudbury, Timmins, Hamilton, London, Toronto or Kingston. A posting for a temporary position had never been done in such a manner and the Union could not have anticipated such a departure from the normal practice. The Ministry, on the other hand, was aware of its decision to open up the competition and said nothing during the negotiation of the Minutes of Settlement. It had an obligation to do so since that fact would have had a significant impact on the outcome of the competition. The Union also alleged bad faith in the delay in finally posting the position. When the Minutes of Settlement were signed, the parties believed that the vacancy would commence in June of 2007. The posting was dated August 10, 2007. The Union made several inquiries about the delay and was advised by Ms. Mohamed, counsel for the Ministry, that the Ministry was waiting for clearance to post. Mr. Gilbert advised Ms. Mohamed that the Union had formally been advised that clearance was no longer, necessary for temporary assignments. Nevertheless, the position was not posted until August 10, almost three months later than the date expressed in the Minutes of Settlement, effectively reducing the length of time the grievor or any other incumbent would occupy the temporary position. Finally, the Union submitted that the Ministry entered into a settlement that allowed the grievor an interview for a job competition she could not win, another indication of bad faith. The Employer has known her for 25 years and was aware at the time of the negotiated settlement that she would not qualify for the position. They should have made that clear during the negotiations so that she would be aware of the advantages or disadvantages of entering into a settlement. It took the position that the settlement should be set aside and that the original grievance be allowed to proceed. In summary, Mr. Gilbert took issue with the Ministry?s position that the posting was proper because there was no restriction on the area of search: it was expressly limited to the OPS and the Ministry complied with that term. He took the position that the parties have an obligation during mediation to advise the other side about any anticipated change in a policy or practice that will have a direct effect on the negotiated settlement. In this case the grievor agreed to withdraw 4 her grievance in the belief that she would be allowed to compete in a field she was familiar with and felt she could compete in. To her surprise, the wider area of search opened up the competition to many unknown applicants thereby introducing an element of uncertainty that had not been anticipated. The Ministry had an obligation to advise the Union and the grievor that it intended to depart from its usual practice when it entered into a settlement it knew was based on that practice. If the parties to settlement discussions feel they cannot rely on the facts in existence at the time and must fashion settlement documents to take into account unexpected and unusual situations that may or may not exist or occur, settlements will no longer be as attractive. The uncertainty in those circumstances would have a chilling effect on the negotiation of settlements and would not be in the interests of the parties specifically and labour relations generally. : The Union relied on the following casesCanadian Corps of Commissionaires (Southern Alberta) and the Alberta Labour Relations Board v. Public Service Alliance of Canada[2004] A.J. No. 1132 (Alberta Court of Queen?s Bench;Re Add Vanced Contractors Inc. v. Ali Vakill and Canadian Imperial Bank of Commerce [1996] O.J. No. 2843 Ontario Court of Justice (Motions Court); Re Eecol Electric (Sask) Ltd. and Van-Can Projects Ltd. [1994] B.C. J No. 3124 (B.C. Provincial Court). Ms. Jennifer Richards, counsel for the Ministry, took the position there has been no breach of the settlement and the Ministry has acted in good faith throughout the process. Although the Minutes of Settlement stated the leave was expected to begin in June, it did not actually begin until August 27, 2007 and the incumbent?s last day of work was July 30, 2008. The position was posted in accordance with those time lines. The parties? expression of the expected date was simply an estimate based on what they knew at the time and was negotiated in good faith. With respect to the posting itself, the Ministry took the position it had complied with the terms of the settlement. The position was restricted to the OPS and the grievor was granted an interview, as agreed. There was no reference to the location of the position in the Minutes of Settlement and there were good business reasons to expand the geographic area of search. The grievor was given an opportunity to be interviewed for the position and did not meet the threshold. She only scored 50 % when the minimum requirement was 70%. 5 Ms. Richards took the position that there has been no breach of the settlement and the Employer has complied with every term in good faith. The Minutes of Settlement are clear and this Board should give effect to its terms. The exceptional circumstances that would allow a Board to set aside a settlement do not exist in the instant case. She took issue with the position taken by the Union that alleged that the Ministry negotiated a settlement allowing the grievor an interview for a position it knew she was not qualified for and could not achieve. The fact is she had been screened out of the original competition and was only granted an interview as part of the agreement that she would withdraw her grievance. She was given another chance to prove she could do the job and she did not meet the threshold. The parties clearly turned their minds to the likelihood she might not succeed. In paragraphs 4 and 6 of the Minutes, the parties considered what should happen if the grievor was successful and what would happen if she was not successful in her application. There was no guarantee that she would be successful, only that she could compete. The Union has alleged that the Employer knew or should have known that she would not meet the requirements based on the fact she had worked there for so many years. Ms. Osipenko testified that while she has casually known the grievor for 18 years, she had only been aware of her two level entry jobs and had not worked directly with her. The Ministry submitted that the Union?s allegations of undue delay are not borne out by the evidence. At the time the Minutes were negotiated, it was believed that the maternity leave would begin in June. Everyone involved, including the grievor, knew who the incumbent was and had some sense of when she would be eligible for her leave. The Minutes were vague as to the actual date of the posting for that reason. They did not bind the Employer to that date. As soon as the Employer was advised of the date of the leave, it acted promptly in arranging for the posting and the interview. Ms. Osipenko?s preference would have been to fill the position before the leave started to allow for some overlap but that was not her decision to make. Neither was it part of the settlement. Ms. Osipenko was unfamiliar with the posting process and relied on her manager and the Human Resources department to arrange the actual posting and the interviews. She did not intentionally delay the process and acted in good faith throughout. With respect to the restrictions in the posting, the Employer submitted that the only qualifier was that it be restricted to the OPS. If the Union had concerns about the site location, it should have 6 raised them at the time. The Board has heard there were valid business reasons to widen the search and, as long as it is not acting in bad faith, the Employer has the right to manage the work force, including the location of the work to be done. There is no evidence of bad faith in the instant grievance and the grievance should be dismissed. In any event, it was said, the grievor was given an interview as promised but did not meet the minimal threshold. There has been no fundamental breach of the settlement sufficient to persuade this Board to set aside the settlement and re-open the grievance. In support of its position the Ministry relied on the following cases:Re Minister of the Solicitor- General and Correctional Services and OPSEU (Harrison et al) (1999) GSB # 1164/92 (P. th Knopf);Re Selkirk College and Service Employees? Union (59 L.A.C. (4) 14 (Chertow); Re Ministry of Community and Social Services and OPSEU (Edgett et al) (1991), GSB # 2476/90 (Dissanayake);Re Ministry of the Attorney General and Gottwald (1998), GSB # P/0127/96 (Leighton). Ms. Nathalie Osipenko has been employed by the Ministry of the Environment since 1989 and has been the Supervisor of the Program Services Sector since May of 2005. She has been involved in this grievance from its inception. She was also involved in the negotiations that led to the Minutes of Settlement respecting the failure to interview. She prepared the posting for the position at issue and was in attendance during the grievor?s interview. Although she had known the grievor for about eighteen years, she had never worked with her and had no expectations about her failure or success at the interview. The four candidates interviewed were given an oral and written test and the threshold to meet was 70%. The grievor scored 50% and was deemed unqualified for the position as a result of her test scores. With respect to the timing of the posting, Ms. Osipenko testified that she had hoped to fill the position before the maternity leave started but did not receive approval until July 17, 2007 due to significant budget restraints that existed at the time. She made several inquiries about the delay in receiving approval but, as soon as she received approval, she contacted the recruitment centre to begin the process and advised the grievor about the expected posting. When they negotiated the Minutes, neither party knew the actual date of the maternity leave and the reference to June was based on the information they had at the time. The three weeks between the interviews and the notification to the candidates of the result seemed a reasonable time frame to Ms. Osipenko. 7 Ms. Osipenko explained that there were valid business reasons to enlarge the geographical location of the position. There had been problems in obtaining a competent candidate pool in past postings that were limited to the Thunder Bay area. As well, at the time, there was an ongoing initiative to be more flexible in the location of various positions within the Ministries. There were significant budgetary restraints and it would be more cost efficient with respect to travel and moving costs. The section itself was in transition from the present location to more scattered workplaces. This temporary position was, in effect, a pilot project to test the viability of this initiative. It was her recommendation to expand the search area but the final decision was made by the Regional Director. She acknowledged that at the time of the settlement she was contemplating a province-wide posting because she recalled waking up the next morning wondering whether she should have told the Union about her plans. She contacted her legal counsel and was advised that it was not relevant. REASONS FOR DECISION This Board is being asked to set aside a settlement negotiated by the parties regarding the job posting grievance of Ms. MacDonald. The Board?s jurisprudence and practice on this issue was set out in the Harrisoncase (supra) on page 11 as follows: I must start with recognition of the policy considerations that govern this Board?s enforcement of Memorandums of Agreement. In the Gottwald decision, supra, it was said: The policy considerations behind giving effect to settlement agreements reached by parties to a grievance were noted in OPSEU (Policy Grievance) when Arbitrator Kaplan cited Landry-King 1593/84 (Knopf) where the Board held: The Board wishes to do everything to foster and honor settlements reached by the parties. Once settlements are achieved parties must feel confident that they can rely on them. Otherwise, there would be no incentive for the parties to even attempt to settle matters. Unless there is a compelling reason why settlements once obtained cannot be honored by the parties, this Board should not even attempt to interfere with the settlement. (at 8- 9). Arbitrator Kaplan also cited Edgett 2476/90 (Dissanayake) where the Board held that: Those policy considerations supporting the need to uphold the final and binding nature of grievance settlements recognized by private arbitrators and the Ontario Labour Relations Board apply with equal vigor and force in proceedings before this board. The purpose of the pre-arbitration grievance procedure under the collective agreement is to provide the parties opportunity to resolve disputes 8 promptly, informally and without the expense and delay of arbitration. Besides, it is generally accepted that a settlement reached between the parties is a far preferable way of resolving a dispute than an award handed down by a third party. If the efficacy of the settlement is to be maintained, the parties must be held to their agreement. (at 10-11). It is important for the Board to respect and honour settlements that the parties have achieved. The policy of the Board is to encourage settlement and to provide assistance for reaching the resolution of grievances. The adjudicative aspect of the Board should be seen as a final resort where the parties should only turn when there is no ability to reach a resolution on their own. The adjudicative powers of the Board should not be available to undo or deny settlements achieved by the parties unless there are compelling policy reasons why the settlement should not stand. In my view, there are no such compelling reasons in the instant case. The Union has alleged that the settlement was made in bad faith for several reasons. First, it asserted that the Employer knew the grievor was not qualified when it negotiated the settlement and should have made its views known to the grievor at the time. I do not agree. The original grievance was filed because the grievor had been denied an interview. In essence, she had been screened out at the first stage of the competition. That was a clear indication that the Employer did not feel she was qualified.When it agreed to grant her an interview, there was no reason to believe it had changed its view of her qualifications. It did not promise to award her the position, nor did it guarantee that she would meet any threshold. It merely granted her a chance to compete with others who had been deemed sufficiently qualified to be interviewed. If a settlement of this nature is taken as a promise that an interview will lead to a position, employers will be very reluctant to agree to similar terms in the future. The Union has also alleged that the delay in posting the position was based on bad faith considerations. The Minutes of Settlement stated that the Employer would post the vacancy that was due to a maternity leave that was expected to begin in June. The actual job posting was dated late in August. At the time the settlement was being negotiated, the parties, including the grievor, were aware that another employee would be taking a maternity leave but none of them knew with certainty when that leave would commence. That was why the settlement was worded in such a vague and uncertain manner. The Employer was not bound to post that vacancy in June. It was understood the vacancy at issue was the one that would begin sometime in the future, maybe in June. The Employer did not delay posting the position out of malice or 9 bad faith. Ms. Osipenko would have preferred to fill the position before the maternity leave commenced but that was not her choice. Once the maternity leave was confirmed, she acted promptly to begin the selection process. That took longer than the parties hoped but was, unfortunately, unavoidable in the circumstances. There is no evidence before me that the delay was a deliberate attempt on the Employer?s part to avoid its obligations under the Minutes of Settlement. Finally, and more troubling, is the Union?s allegation that the Employer withheld material information from the grievor that had a direct impact on the competition and should have been disclosed during the negotiations.I agree with the Union that this information should have been disclosed before the Minutes were signed. The grievor believed she would be competing in a pool of internal applicants in the area. She knew, or at least believed she knew, who would be competing for the position and agreed to take part in the competition on those terms. If she had known at the time that the applicants could come from any regional office in the province, she might not have been willing to withdraw her grievance in favour of an interview. She had a right to know that the practice of posting this position was going to change and that the change would affect her directly. However, having come to that conclusion, I am not of the view that this omission is sufficient to nullify the settlement. In the first instance, I do not believe it was done in bad faith. I accept Ms. Osipenko?s evidence that she simply did not think about it until the next morning. Once she realized her mistake, she took steps to clarify her obligations under the settlement. Secondly, and more significantly, the grievor did attend at an interview and did not achieve a passing score. The Employer was looking for at least 70% on its oral and written tests. The grievor scored 50%. If this Board decided to void the settlement, the grievor would be left with the right to litigate her initial grievance. If she succeeded in that grievance, she could only expect an order granting an interview. Even if a different group of candidates were evaluated during that interview, the grievor has already shown that she cannot meet the threshold. There would be no advantage to the grievor and would be a waste of the Board?s time and resources. 10 DECISION For the reason stated above, I do not find the Employer acted in bad faith and reject the Union?s request that I void the settlement. The grievance is dismissed. th Dated at Toronto this 26 day of May, 2008. Loretta Mikus Vice-Chair