HomeMy WebLinkAbout2007-2339.Barbita.08-07-14 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# 2007-2339
Union# G-105-07-SOW
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587
(Barbita)
Union
- and -
The Crown in Right of Ontario
(Greater Toronto Transit Authority - GO Transit)
Employer
BEFORE Richard Brown Vice-Chair
FOR THE UNION Natasha De Menna
Green & Chercover
Barristers and Solicitors
FOR THE EMPLOYER
Megan MacRae
Employee Relations Consultant
Greater Toronto Transit Authority - GO
Transit
HEARING June 27, 2008.
2
Decision
Johanna Barbita filed this grievance because she was denied an interview for a
temporary assignment to the position of agency officer. The union alleges she was
not interviewed because of her disability. The employer made a preliminary
motion to have the grievance dismissed, without a full hearing on its merits,
because the facts alleged could not constitute a violation of the collective
agreement.
I
The employer?s primary argument is that the provisions of the collective agreement
relating to posting and filling of vacant positions do not apply to temporary
assignments. Article 8.1 specifies how vacancies are to be posted and filled.
According to article 10.2(1), temporary assignments extending beyond six months
are to be posted and filled in accordance with article 8.1. The clear implication of
article 10.2(1) is that article 8.1 does not apply to assignments of shorter duration.
In the absence of any obligation to post the position in question, the employer
contends it was under no obligation to interview Ms. Barbita for this position.
By way of an alternative argument, the employer contends the grievor would
have no right to be interviewed even if article 8.1 did apply. This argument rests
upon two parts of that article. The first is found in article 8.1(1):
The company reserves the sole and absolute right to carry out applicable
interviewing or testing that is necessary in its opinion.
Article 8.1(10) contains the second:
Where there is more than one applicant from the bargaining unit who in the
opinion of the Employer is qualified for the position, then the employee with
the longest seniority ? shall be offered the vacancy.
3
Noting the successful applicant is senior to the grievor, the employer contends it
was not obliged to interview her, because a there was a senior qualified applicant.
The union relies upon article 2.2 of the collective agreement incorporating
by reference the I also was referred to s. 5 of the stating
Human Rights Code. Code
?every person who is an employee has a right to equal treatment with respect to
employment without discrimination because of ? disability. The union argues the
employer violated the grievor?s right to equal treatment under s. 5, by deciding not
to interview her because of her disability, while interviewing other employees
some of whom had less seniority than her.
II
The essence of the employer?s argument is that the grievance should be dismissed
at this preliminary stage because the union does not allege a violation of the
contractual provisions relating to job vacancies. The union?s response is that the
grievance should be heard because it alleges a violation of the .
Human Rights Code
I am persuaded by the union?s argument. The union is entitled to have the
grievance heard on its merits because the facts alleged?the denial of an interview
to the grievor because of her disability coupled with the interviewing of junior
employees?could constitute a breach of the .
Code
I digress to note, if the was breached, the violation
Human Rights Code
would reside solely in the denial of an interview to the grievor, not in the decision
to appoint a more senior employee. The union does not challenge that appointment.
In other words, if a violation occurred, what the grievor lost was an interview, not
a job. An interview for a job that was properly awarded to someone else would
have little, if any, value. If the grievance is allowed on its merits, the remedy will
reflect this valuation.
4
th
Dated at Toronto this 14 day of July 2008
Richard Brown
Vice-Chair