Loading...
HomeMy WebLinkAboutDobratz 12-05-241 IN THE MATTER OF AN ARBITRATION : •' FAMILY AND CHILDREN'S SERVICES OF THE WATERLOO REGION (the "Employer ") ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 258 (the "Union ") AND IN THE MATTER OF •. SEU # 2010-0258-00 Louisa M. Davie Sole Arbitrator Appearances For the Union: Mitch Bevan For the Employer: Paul Young This is a job posting grievance in which Dale Dobratz ("the grievor") asserts that, as the senior qualified applicant, she should have been awarded the position of Education Treatment Worker ("ETW") posted October 1, 2010. It is the Employer's position that the collective agreement has a competition clause which specifies that relative equality is determined "in the judgment of the [Employer]" and that "such judgment shall be made in a fair, impartial and consistent manner." As a result, although the grievor was senior and qualified, it was the Employer's judgment, made in a fair, impartial and consistent manner, that the grievor was not "relatively equal" in "skill, competence, relevant academic qualifications and efficiency" to the incumbent applicant with whom the grievor competed for the position. At the commencement of the hearing the parties agreed that I was properly seized and did not raise any issues with respect to my jurisdiction to hear and determine the matters in dispute. I note that the incumbent had been given notice of the proceedings, attended the hearing, and was afforded the opportunity to fully participate in the hearing. At the commencement of the proceedings I heard detailed opening statements from the Union and the Employer. Each outlined their respective positions and referred to the evidence upon which each intended to rely in support of that position. The parties agreed to file a number of documentary exhibits, including the resume of the grievor and the incumbent. Thereafter the parties agreed to use the mediation/arbitration provisions of the Labour Relations Act in an effort to resolve the grievance in a mutually satisfactory manner without recourse to the more adversarial arbitration process. They did so in order to promote ongoing labour relations and to avoid lengthy, costly and potentially acrimonious litigation with uncertain results. During the course of the mediation/arbitration process it was evident that there was much common ground between the parties. It was also apparent that the facts and circumstances giving rise to this grievance are unique and special. Those circumstances include the fact that the person to whom the ETW position was awarded did not have the academic qualifications listed in the posting but, in the judgment of the Employer, had equivalent experience because she had been in the ETW position, on a "contract" basis, for a number of years. The special circumstances include also the fact that the ETW position had been posted as a "contract" position shortly before the posting which gave rise to this grievance. Both the grievor and the incumbent applied for that contract position. The incumbent was awarded the position at that time. Most significantly, the special circumstances surrounding this grievance include also the fact that the grievor is currently in an ETW position on a "contract" basis. The extraordinary circumstances surrounding the facts giving rise to this grievance underline the reasons why the parties agreed to a mediation/arbitration process. There can be no doubt that at the time of the job posting the Employer was faced with a difficult decision. The grievor is an eminently qualified employee, with significant seniority (10.9 years), who has rendered valuable service to the Employer. The incumbent has provided equally valuable service during her tenure (9.2 years of seniority) with the Employer. Both are currently in the ETW position and are performing well. In these unique circumstances it made sense to engage the mediation/arbitration process rather than spend days in litigation, perhaps over many months, to challenge the job competition held more than 18 months ago. In all the circumstances of this case, and having regard to the matters raised during the mediation/ arbitration process, I order that Jennifer Bannister remain in the position she was awarded in posting #108-2010. 1 further hereby order and direct that the Employer appoint the grievor to the next "complement" full-time ETW position within its 0 organization. By reason of this order and direction a vacancy will not occur and need not be posted as the grievor shall, by my direction, be immediately placed in the full- time ETW position. I shall remain seized in the event the parties experience any difficulty implementing this award. Dated at Mississauga this 24th day of May, 2012.