Loading...
HomeMy WebLinkAbout1980-0071.Lenehan et al.81-10-1571/30 140/80 142/9(? 223/8'J IN THE MATTER OF AN ARBITRATION tinder The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIZVANCE SETTLEMENT BOARD Between: -- Before: For the Griever: FCJK the Enployer: Hearings: MfZSS?CS. Lenehan, Csston, Therrien & Corosky Griavors - And - The Crown in Right of Ontario (Ministry of Heaith) EnplOyer Prof. M. R. Gorsky Vice Chairman MS. ."1. M. rerrin Xember Mr. A. G. Stapleton Member !4r. G. Richards, Grievance Officer Ontario Public Serrrice Enployees Union MT. J. Callas. Regional Personnel ?dministrstor Ministry of Health, Penetaxguishene May 25, 1931 s June 15. 13@i -2- INTERIN AWARD The matter before this Roard originally included the grievances of Messrs. G. Lenehan, G. Caston, C. Therrien and W. Corosky. At the opening of the hearing counsel for the Union indicated that the grievance of .~r. Corosky was being withdrawn. The grievance of Mr. Lenehan is as follows: "I have been appraised contrary to the governing principles and standards in regards to the past competition for Group III". The grievance of Mr. Caston is as follows: "I grieve that I wasby-passed for promotion \ to Group III Attd. [attendant] by the other Group II Attd's who worked under me when I was in charge of the ward." The grievance of Mr. Therrien is as follows: "I feel that I am continually and unjustifiably being discriminated against by management, through the means of unfair and predetermined promotion selections which are supposed to be fair and open competitions." It was agreed that all three grievances arose out of a competition held by the employer pursuant to the provisions of Article 4.1 of the Collective Agreement, which is as follows: "When a vacancy occurs in the Classified Service for a bargaining unit position' or a new classified position is created in the bargaining unit, it shall ' be advertised for at least five (5) working days prior to the established closing date when advertised within a ministry, or it shall be advertised for at least (10) working days prior to the established closing date when advertised service-wide. All applications will be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards." - 3 - The competition in question, being HL-32-61-79, was with respect to openings for senior attendants who were classified as Attendant-3-Oak Ridge (See Exhibit ;Y4), hereinafter referred to as "Attendant 3". At the opening of the hearing ,Kr. Richards raised, what he referred to as, a preliminary issue: was the announcement of openings for Senior Attendants,being for the position of Attendant-3, (Exhibit %4), with respect to ten positions, as submitted by the employer, or for thirteen positions, as submitted by the Union? This issue will be the subject Of our Interim Award. Mr. Callas, for the Employer, was content to have this preliminary issue presented and argued and he did not object to the position taken by the Union,which was: depending on the outcome of the preliminary issue, the Union would contest the positions awarded to either Xessrs. Cruise, Couling and XcDonald or Messrs. Pilon, Brophy and Playne. By way of clarification,it should,be noted that it was agreed that Xessrs. Cruise, Coulinq and McDonald, along with the grievo.rs, had applied for the position as posted pursuant to Exhibit #4 and that ?lessrs. Cruise, Couling and XcDonald were unsuccessful in that competition, while Xessrs- Pilon, Brophy and Playne were. It'was the position of the Union that there were, in fact, thirteen vacancies to be filled pursuant to the said posting. and not ten as maintained by the Employer. It was the further position of the Union that the Employer had, under the Collective Agreement, thirteen vacancies for the posted ?osi- - 4 - tions and that the employer was bound by the Collective Agree- ment to advertise all thirteen vacancies, which the Union CiaiiTS should have been filled, under the competition HL-32-61;79, in accordance with Article 4 of the Collective Agreement. The Union contends five of the thirteen positions, which should have been advertised, were replacement positions. The position of the Union is that whether this Board finds that the posting, above referred to,(Exhibit 141, relates to ten or thirteen positions, the employer was, in filling the positions, in breach of the provisions of Article '4.3 of the Collective Agreement which is as follows: "In filling a vacancy, the Employer shall give primary consideration to qualifications and ability'to perform the required'duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration." The Union argued that if the number of vacancies for the . posted position is found by this Board to be ten, then the three grievors were relatively equal in terms of qualifications and ability to three of the successful candidates, Andre Pilon, Dan Brophy and AlPlayne,and as the grievors had greater seniority thair the three noted successful candidates,this ought to have resulted in the grievors being appointed to the posted positions. In the alternative, the Union submits that if its submission, that the posting be treated as one for thirteen jobs,is accepted, then the following employees should be treated as having been awarded the three additional jobs as Group 3 Attendant: Son Cruise, Bill Coding and Steven YcOonaLd. In that case, the Union submits that the grievors should have been awarded~tte positions of Attendant 3 and not Messrs. Cruise, Couling and McDonald, on the basis that the grievors' qualifications and ability to perform the required duties were relatively equal to those of.Xessrs. Cruise, Couling and McDonald and that the grievors ' length of continuous service ought to have resulted in their being awarded the positions.' On January 29, 1980, the ten positions, which the Employer claims were to be filled pursuant to Exhibit $4, were filled. and, as well,.on that date, Messrs.. Cruise, Couling and ,YcDonald were appointed from attendants Group 2 to Attendants Group 3, pursuant to the Temporary Assignments ProViSiOn of the Collective Agreement being Article 6.1. Subsequently, pursuant to the advertising and posting of a Competition for three Group 3 Attendant positions, Xessrs. Cruise, Couling and MacDonald were appointed as the successful applicants on December 8, 1980. .Yr. John Sajan, the Chief Attendant of the Oak Ridge Division, testified that he was the Chairman of the selection committees covering both the competitions above referred to, and had, as well, chosen Xessrs. Cruise, Couling and McDonald to act as Group 3 Attendants, as he put it, "arbitrarily", after receiving permission from Lhis Supervisor Mr. L. Miller, the Acting Director of Xursing at the time. The position of the Union was that the Employer deliber- ately refrained from declaring vacancies for three additional three Group 3 Attendant positions, at the time of the posting of Exhibit #4. This device,it was submitted, enabled the acting appointments of Messrs. Cruise, Coding and McOonald. The acting appointments, it wasargued, provided thelatterthree employeeswith an unwarrantedopportunitytoimprove theirqualifications and abilitytoperformtheAttendant3positions at the expense of the grievors. The Union argues that if the three additional positions had been included in the posting, (Exhibit #41, then ,the grievors would have been compared with Messrs. Cruise, Couling and McDonald, at an earlier date and at that time it would have been possible to more easily demonstrate the relative equality of the grievors, when compared with Nessrs. Cruise, Couling and McDonald in the areas of qualifications and ability to perform the duties required of an Attendant 3. Mr. Sajan testified that about the!time the competition .was posted (Exhibit #4), a reorganization of staffing occurred at Oak Ridge (reorganization of assignments and complement). This, then left a shcrtage of three Attendant 3's in the authorized complement of 32. Accordingly, he did, on January 29, 1980, pursuant to Article 6.1 of the Collective Agreement make three acting appointments to the Attendant 3 position as above described. He stated that in filling the acting positions - 7 - he considered how this might be accomplished with the ieast disruption to the service. He stated further that his choices were from Attendant 2's whom he viewed as being familiar with the ward.it's patients and staff. This evidence was somewhat in conflict with his earlier testimony that his choices for the acting positions were made arbitrarily. Mr. Sajan was asked why he had waited until January 29, 1980 to make the three acting appointments when he was aware of his authority to do,so sometime prior to the end of December 1979. He responded that December of 1979 coincided with the end of a strike at the facility. This had resulted in low morale among the staff and this,along with uncertainty as to whether certain Attendant 3's whose positions were to be filled would return to work, caused the delay in making the acting appointments. Mr. Sajan was also asked whether the delay in making the acting appointments was affected by the competiton (Exhibit 141. Be responded that this was a factor in that if the acting appointments were made, followed~by the holding of a competition, it might be that some of the acting appointments would have to be replaced if they were successful in the competition. From ‘ML-. Sajan's answers I would take it that authority to fill three Attendant 3 positions by acting appointments existed s:ior to December 10; 1979. Mr. Sajan stated further, in his evidence, that if he had thirteen true vacancies to be filled on Oecerrber 10, i979, he would have filled all thirteen positions. This was so, became -a- in his opinion, to do otherwise would unnecessarily increase work for himself and others in running two competitions and would create morale problems among Attendant 2's. 1n support of its position that there were thirteen Attendant 3 positions to be filled, 'the Union submitted that there was clear evidence to demonstrate that a number Of Attendant 3's were not at work when the decision to post Exhibit #4 was made, in such circumstances as could lead. to only one reasonable conclusion: that those employees would not be returning to work in the future. Thus, there were thirteen vacancies to be filled when the Employer determined to post Exhibit $4. Examples furnished related to: 1. Joseph Brunelle~, an Attendant 3 who ceased to work on April 19, 1979, without any indication that there was any expectation that he would return to work. There was evidence that following approval of Long Term Income Protection benefits for Xr. Brunelle, in August of 1990, he was transferred to the inactive payroll, retroactive to October 20, 1979, Don Cruise was appointed to fill Mr. Brunelle's position. on an acting basis, from January 2, 1980, to December 9, L980, when the competition for the three Attendant 3 ~positions became effective. - 9 - It was the position of the Union that Mr. Brunelle was off work from April of 1979 and his medical problem was known to, the Employer well in advance of the posting date of December 10, 1979. ~This knowledge, it was submitted, made it abundantly clear that Mr; Brunelle was not going to return to work. 2. Harold Wooley, was an Attendant 3 and was absent from work because of a number of physical cornpLaints from some date in 1978. An examination of Mr. Wooley's record dis- closes that, after being on sick leave for sometime in 1978, an application to obtain L.T.I.P., (November 27, 1978), was made on his behalf. Some six days later he appeared at work bearing with him a medical certificate indicating I: that he was fit to return to work. He was again off work from February 3, 1979, because of illness and remained off work thereafter. , An application for Long Term Income Protection for ,Nr. Wooley was made on August 15, 1979. A statement by a physician, dated August 15, 1979, a copy of which was forwarded to the Employer, indicated that SW. Wooley was then totally disabled and that no fundamental change was expected in his physical condition. A supplementary medical statement, dated September 15, 1979, indicated that continued exposure to patients made !lr. !Jooley particularly vulnerable to injury. - LO - On November 27, 1979,approval was obtained for :?r. ijocley to be placed on the inactive roll. There is a notation dated, January 10, 1920, that an application for Canada Pension Plan Disability Payments was not being approved for Mr. Wooley because he was not considered to be totally disabled within the meaning of the relevant I legislation. A memorandum dated March 20, 1980, indicates that Long Term Income Protection benefits payable to Mr. Wooley would.be terminated, effective April 1, 1980, if new information relating to his physical condition was not furnished. There was no evidence as to what events promptedthe directive of lYarch 20, 1980. There'is a further notation that L.T.I.?. benefits pay- able to Mr. Wooley were reinstated, retroactive to April 1, 1980. There was, however, an indication in Xr. Wooley's file, based on a letter of April 9, 1986, that ?-lr. Wooley was fit to return to work in April of 1980. A similar argument was maintained by the Union with respect . to Mr. Wooley. It was argued that the Employer was well aware of the fact.that-Mr. Wooley's physical condition wouid not permit him to return to work. Reliance was had on tSe fact that an L.T.I.P. application, had been made.on August 15, 1979 and that approval was obtained for Mr. Wooley's being placed on the inactive roll on November 27, 1979. It was submitted that there was no reasonable explanation to explain the delay in declaring ,Mr . Wooley's position vacant. - 11 - It was the position of the Employer that at the material time, December 1979, and, thereafter, until April 9, 1990, there may have been concern about the ability of Hr. Wooley to return to work but there was insufficient informationthat &. Wooley would not be able to return to work. In support of its position the Employer relied upon the denial of Canada Pension Plan disability benefits in January 10, 1980,as well as the indication that 1Yr. Wooley would be taken off L.T.I.?. as of April 1, 1980, in the absence of certain new information being furnished to the carrier. The Employer also relied upon Mr. Vooley's having advised it, sometime after December 25, 1979,, that he would be returning to work. It was acknowledged that Mr. Wooley, upon being advised at that time that he would have to bring with him evidence in the form of a doctor's certificate indicating that he was physically able to carry out the functions of an Attendant 3, disclosed that he did not possess such a certificate. Nor did he apparently secure one, thereafter. It is difficult,. on the evidence adduced before us, to draw any definite conclusions concerning Mr. Wooley's prbgnosis, based on the conflicting indications drawn from the references' made to us from his file. What iscertain, however, is, that unlike the case of Mr. Don Cruise, who was appointed to fili 1 &Xr. Brunelle's position on an acting basis, from January 2,~ 1935, there was no record of ?4r. Wooley's position having been fiiled on an acting basis. - 12 - 3. Reference was also made to the case of Ted Howard, also an Attendant 3, who, as at the date of Exhibit +4, had been absent from.work for a number of years because Of illness. Mr. Howard was on the active payroll of the Employer in December of 1979 and was so shown until the effective date of his retirement, being January 31, 1980. The evidence discloses a Letter to the Employer from a physician,.dated January 3, 1980, indicating that 41r. Boward could return to work provided he had no patient contact, which, it.was stated, meant he could not function as an Attendant 3.~ This was the first indica- tion received by the Employer that Mr. Howard could resume his duties, albeit, subject to the limitation noted. Mr. Howard, instead of returning to work, chose to resign, effective January 31, 1980. While the evidence does not disclose when Mr. Howard resigned, it was agreed that he did so after Janaury 3, 1980. Mr. Howard was replaced as an Attendant 3, on an acting basis, by a Mr. Puddicombe, in September of 1979, until his position was declared vacant and a competition declared in May of 1980. This position was filled, effective June, 1980, by ,Mr. Puddicombe, who was the successful applicant. When Mr. Howard retired on January 31, 1980, a new job specification was drawn up by the Employer to utili:e the position vacated by him, being that of "~eniorXct~vlt~Centre~t*~~=.'l - 1: - A job description was prepared with the pay status of an Attendant 3 and was classified effective April of 1980, advertised in May of 1980, and filled in June of 1980. This new position was awarded to Mr. Howard, who was assigned to the front office, whereas he had, prior to his resignation, been assigned to the wards. In the case of Mr. Howard the Union submitted that his absence for such a long period of time ought to have reasonably prompted the Employer to conclude that he would not be returning to work and that he should have been replaced by the time Exhibit #4 was posted. Mr. Richards submitted that Mr. Howard, consistant with his assignment in June of 1980, to the newly.created position of Senior Activity Centre Attendant, ought to have been affected by the provisions of Article 5.6 which is as follows: "Where,for reasons of health,, an employee is assigned to a position in a classification having a lower maximum salary, he shall not receive any salary pro- gression or salary decrease for a period of six (6) months after his assignment, and if at the end of that period, he is unable to accept employment in his former classification, he shall be assigned to a classification consistent with his condition." This submission was based upon the allegaizion that the position to which Mr. Howard had been appointed was in fact more properly an Attendant 2 position. WhS.tever meri: the Union submission night have been in another COntext,.'~e are dealing with the issue whether there were 13 positions avail- able on December 10, 1979 and the Union position, based on an application of Article 5.6, is not relevant to that issue cn the facts before us. - 14 - 4. Mark Hamelin, an Attendant 3 with the Employer, xas off work from February 11, 1980, because of illness. He was placed on the inactive roster by the Employer on August 13, 1980. His position was declared vacant in October or November of 1980. and was filled on December 8, 1980. Mr. Hamelin's position as an Attendant 3 was filled by Steve McDonald, on an acting basis, until August 11, 1980, although it was acknowledged that Mr. McDonald may have, in fact, been acting in place of another Attendant 3 whose name was not given in evidence. The Union indicated that it would not be relying on the case of ‘Mr. Hamelin in support Of its position, and his case is referred to merely to make it clear that,although it was adverted to in evidence, it does not figure in our interim award. 5. In September of 1979, three other Attendant 3's employed by the Employer, H. Beriault, M.J. Ladacoeur and L. LeCamp, were on the inactive list and were so shown in January of 1980. The evidence did not disclose when they were replaced, although it was assumed that they were replaced on a permanent basis as no additional unaccounted for vacancies were shown. It was not shown when these three employees were replaced. 6. The Union also referred to the case of an Attendant 4, Marcel Quesnelles, who was, on November 30, 1979, on L.T.I.P. and on the inactive payroll. It was not established, however, that Mr. Quesnelleshad been - 15 - replaced by an Attendant 3. It was indicated that the Attendant 4 complement had been filled on a permanent basis prior to November 30, 1979, with the exceptions above noted. 7. Gord Barnes, who was an Attendant 4 with the Employer. commenced educational leave in September of 1978. Three Attendant 3's replaced him on a temporary basis from September of 1978 to August 11, 1980. Along the chain of replacement, when Dan Hamelin, an Attendant 3 replaced Mr. Barnes, Steve McDonald filled the Attendant 3 position vacated temporarily by Dan Hamelin, as of January 29, 1980. It was acknowledged that the two previous Attendant 3'5, who temporarily filled Mr. Barnes ' .position as an Attendant 4,did so without their temporarily vacated Attendant 3 positions being, in turn, filled on a temporary basis. Dan.Hamelin served as an Acting Attendant 4 from January of 1979 until Mr. Barnes' returned.. 8. Pat Burns, was an Attendant 4 on study leave from September of 1978 until August ,of 1980,along with M-r. Barnes-~ He was replaced on Nay 14, 1979 by Ken LeClair, who served as an Attendant 4 until Mr. Burns' return to work on August 11, 1980. Nr. Joseph Brunelle. above referred to, served, as an Acting Attendant 3, replacing Xr. ieClair, ccmenci;ly December 18, 1978, and so served until April 19, i979, when he left work because of illness. It should be noted that Nr. LeClair was cnly an Attendant . - 15 - 2 when he first replaced Yr. Burns, hut was promoted to the permanent position of Attendant3 on Zanuary 28, 1980, while serving as an Acting Attendant 4. Mr. Bill Couling was appointed to replace Mr. LeClair from January 29, 1980, .as an Acting,Attendant 3. Mr. LeClair continued to serve in the capacity of an Acting Attendant 4 until the return of Mr. Burns. Having been displaced from the Acting Attendant 4 position on August 11, 1980, as a result of ,Nr. Burns' return to work, .Xr. LeClair, gin turn, displaced Xr. Couling from the Acting Attendant 3 posi- tion that he then occupied and Mr. Couling reverted to his former status of Attendant 2, until he was promoted as ,a result of competition for the vacant positions above referred to. Relying on the chain of temporary replacements following the departure, on study leave, of Messrs. Byrnes and Barnes, the Union argued that the Employer deliberately ignored the existence of true vacancies in the Attendant 3 complement, which should have been filled by a competition and not by a series of temporary appointments. It was the position of the Union, relying on the above recited facts, that the Employer had neglected to .declare at least three additional vacancies for Attendant 3 positions,which ~siticns should havebeen included in Cxhibit +4. Relying on the history of absences by certain employees and the repiacements arranged for them, the L'nion contended that there was no reason- able explanation for the Employer's failure to declare the additional vacancies. In the result,the Zmplcyer. being in - 17 - breach of its obligations to declare the additional -Jacancies, was.in a position to appoint Zessrs. Cruise, Couling and S. McDonald as acting Attendant 3's on January 29, 1980. In Lhefzrtner result,the three last mentioned employees were provided with an unwarranted opportunity to gain additional experience in the duties of an Attendant 3. This, in turn, gavethose employees an unearned advantage in securing the permanent positions of Attendant 3 on December 8, 1980, after those positions had been advertised. It was submitted that if the competition for those three positions had been included along with the positions advertised in Exhibit #4, then the grievors would have been competing for the Attendantspositions without the disadvantagesabovereferred to. Mr. Sajan acknowledged that such a disadvantage wou1.d affect the employees who were not given the opportunity to gain additional experience'while temporarily posted to the ' Attendant 3 position. It washis position that the decision to proceed in the manner complained of by the Union was justified by the absence of additional agailable positions when Exhibit 3,was posted. After carefully examining the evidence adduced, which *was often less than clear,' it is not possible to find that the Union's position has been sustained. nest of the evidence which could bear on the issues should hat-e been within the possession of the Employer and its performance in presenting a factual picture of the situation, as it related - 18 - to the several employees referred to, was somerJhat inadeguate Nevertheless, it remains the obligation of the Union to satisfy this Board that its position,.cn the preliminary issue ought,to be sustained. The Union's evidence con- cerning the employees referred to was also less than helpful. While this is to some extent understandable, an arbitration hearing is not a fishing expedition in which a case, only dimly conceived, may be made. With all of the difficulties facing it in adducing evidence the Union did not, for reasons which were not made clear to us, approach the Employer within a reasonable time, to secure the information desired. In the result, when this Board intervened with a view to facilitating the furnishing of reasonable information to the Union, there was, apparently, insufficient time to use such information to the best effect. While there is evidence that the Employer was somewhat lax in monitoring the status of employees absent from work and it may be that if it had been more attentive to its responsibilities it would have been made manifest that there Yere additional vacant positions for Attendant's to be filled when Exhibit 4 was posted, on the evidence before us, it is not possible to find, as the Union requested, that the Lzployer was in breach of Art. 4.1, in ~failing to include in Exhibit $4 three additional Attendant 3 positions, and tSe Union therefore fails on the preliminary issue. The Registrar will,therefore.be requested to set a date i - 19 - for the continuation of the hearing and issue a notice to that effect. The heariog will proceed on the basis that Exhibit #4 was with respect to the ten positions as awarded on January 29, 1980. ‘We would add that if the Employer had, indeed, deliberately manipulated the posting (Exhibit 4) so as to artificially create a situation where it could bestow an unfair advantage on some employees through an abuse of the provisions for acting appointments then,we would have had to view the matter differently. However, as has been stated above, the evidence in this case fell short of establishing the contention of the Union. M.R. Gorsky, Vice-Chairman "I dissent" (no paper) M. M. Petrin, xember Dated at London, Ontario this 15th day of October, 1981.