Loading...
HomeMy WebLinkAbout1980-0566.Marks.81-04-23IN TRE MATTER OF .ti ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TRE GRIEVANCE SETTLEXEXT BOARD Between: -!- Seiore: c. ?or the Grievor: For the Zmployer: d Hearing: \larch 23. 1981 D. Jilarks and Griever, The Crown in' Right of Cntarlo Ministry of Natural Resources Employer. J.F.W. Weatherill Chairman G. Feckham Member )il. Perrin Member M. Xercer-DeSantis, Grievance Officer Ontario Public Service Pmpiorees L:nion A. Temwle 11inist;y of Natural Resources i. -2- DECISION There are before the Board six grievances, the first of which is dated September 11, 1980, and the last three of which are dated November 21, 1980. The grievances relate, in one way or another, to the employer's failure to appoint the grievor to a position of Senior Biological Technician in the Sault Ste. Xarie District. It was agreed that these matters are properly before the Board, and in this decision we make a final disposition of all six grievances. The position in question is a new position, within the classification Resource Technician Senior I, and was established in May of 1980 as part of the implementation of the Strategic Plan for Ontario Fisheries. The position was posted, in Competition No. 211/80, on July 3, 1980, with a closing date of August 1, 1980. The posting was service-wide, open, and appropriately published. There were approximately fifty applicants for the position. The grievor was one of the applicants. Mr. A.J. Gentile, a Senior Biological Technician, then working at Maple, was not. It would appear thathad Mr. Gentile been aware of the competition at the appropriate time, he would have applied , -3- for the position. It was neither his fault nor that of the employer that .Xr. Gentile did not know of the competition and did not apply. Among the qualifications set out for the job of Senior Biological Technician posted on July 3, 1980, was "graduation from an approved technical course in resource management". The position specification for the job provided, in that respect, that qualifications included "graduation from an approved technical course in resource management or an approved related discipline". Thus, in posting the job as it did the emplover had, perhaps inadvertently, limited the scope of qualifications more than was necessary. The employer did, however, interview certain applicants for the position even although those applicants did not in fact meet the qualifications as set out in the bulletin. It did not interview the grievor (and perhaps others) even although the grievor was, as is now acknowledged, qualified for the position. The employer then considered (correctly) that it had erred in interviewing the unqualified applicants. It did not, however, then proceed to interview the grievor -4- or any other qualified applicants there may have been for the job. Rather, on September 17, 1980, the employer reposted t'ne position as Competition No. "211/80 (reissued)". The grievor's application was considered as valid for that revised competition. Mr. Gentile did apply in Competition No. "211/80 (reissued)". I One of the centraLquestions for determination in this case is whether or not the employer acted properly in cancelling Competition No. 211/80 and posting Competition No. "211/8C'~reissued) ". The only change in the new competition was that the phrase ". . . or an approved related discipline" was added to the qualifications. Such a phrase could, of course, quite properly have appeared in the bulletin as originally issued. Before dealing with the question, however, we shall describe the subsequent steps taken by the employer in filling the position. It would appear that - perhaps as a result of a grievance filed by the griever alleging .bias and discrim- ination, and perhaps for other reasons - the employer cancelled Competion No. "211/80(reissued)", and returned -5- all applications to the applicants, advising that they miqht reapply when the job was reposted. It would appear that the employer was also concerned that the interviewing committee which had proceeded in the matter (mistakenly, as we have seen> would then be biased in the matter, and could not in any event then be completely recon- stituted, due to the absence of one of its members. While it does not appear to us that this consideration was soundly based, the point has no significance for the outcome of this case. On November 17, 1980, the employer posted Competition NO. 382/80, for the job in question. This posting, sur- prisingly, set out the same qualifications as those in the oriqinal oostinq, Competition No. 211/80, that is, the qualification material to this case was set out as "graduation from an approved technical course in re- source management". This posting in turn was "reissued" on November 21, 1980, amended so as to restrict the competition to Civil Servants. No issue -arises in this case as to that amendment. Proper or improper, it is not material to this case. -6- There were some seventeen applications for the final posting, and they include those of the grievor and Mr. Gentile. Three -of the applicants (including the grievor and Mr. Gentile) were considered qualified for the job. One of them withdrew, and the grievor and Mr. Gentile were interviewed. Each is a graduate of an approved technical couxse in resource management. On January 12, 1981, Mr. Gentile was notified that he was the successful applicant, and on February 16 he took up the position. Article 4.3 of the "working conditions" collective agreement provides as follows: In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. hhere qualifications and ability are rel- atively equal, length of continuous service shall be a consideration. The employer acknowledges that the griever was qualified for the job in question. Had Mr. Gentile with- drawn from the competition, or turned down the job, it would havebeen offered to the grievor. The union, for its part, does not contest that Mr. Gentile's qualifications were superior to those of the grievor and that as far as the actual assessment made pursuant to article 4.3 is concerned, the employer was not inviolation of the agreement. The issue is as to the propriety of the procedures followed by the employer, as they have been described. Article 4.1 and 4.2 of the collective agreement are 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 advertisad 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 ten (10) working days prior to the estab- lished closing date when advertised service- wide. All applications wiil be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards. The notice of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required, the hours-of- work schedule as set out in Article 7, Hours of Work, and the area in which the position exists. In the instant case, Competition No. 211/80 would appear to have been properly posted in accordance with the above provisions. In our view, it would be open to / -8- an employer to correct errors in job postings, particularly where such corrections are made before the time for making applications has expired. In the instant case, we think it can scarcely be said that the omission of the phrase ". . . or an approved related discipline" was an error of such a nature as entirely to vitiate the competition. It will be remembered that when the "reissued" bulletin 211/80 was withdrawn, the bulletin which was then issued, NO. 382/80, set out the job qualifications (insofar as they are material) in precisely the terms of the original bulletin. The job was filled on that basis. The original bulletin, in our view, was properly posted, and no attempt was made to "correct" it before the time for making applications had expired, and indeed a number of interviews had been held. The grievor had applied in timely fashion under that bulletin, and was qualified for the job. The employer erred, as is admitted, in proceeding to interview persons who did not meet the qualifications it had set for the job, while at the same time failing to interview the grievor and perhaps others who were qualified. It seems to have been in mattempt to rectify this error that the employer purported to "cancel" the notice of - 9- vacancy and to start the procedure again. With respect, that procedure does not appear to us to be in compliance with the provisions of the collective agreement. The vacancy existed at all times. A proper notice of vacancy had been posted. Employees, including at least one qualified employee, had applied. The employer, wrongly, had given consideration to employees who did not meet the qualifications set out in the notice. Surely the obvious way to rectify this mistake was simply to eliminate the unqualified employees from consideration, and to consider the applications of those employees who were qualified. In "cancelling" the originai notice and "beginning again", the employer has in reality simply extended the time for making applications for the job. The vacancy, we repeat, existed at all times, and the qualifications set out were, for all material ourposes, unchanged. Because of the employer's actions,however, the time for making application for that job was extended well beyond the "established closing date" contemplated by the collective agreement. The effect of this, of course, was to deprive the grievor of consideration of his application together . -lO- with those of other employees made in the same competition and filed in accordance with the terms of the competition. In these circumstances, it is our conclusion that there has been a vioiation of the collective agreement with respect to the grievor. Given the qualificationsof the grievor (and no higher valid claim being before us), the jcb in question ought to have been awarded to the grievor. It was the subsequent job competition which must be considered a "nullity" - and it will be clear that Mr. Gentile too has been prejudiced by the employer's action. The instant case is, we would observe, an even stronger one than the Into case 16 L.A.C. 216 (Lane, C.C.J. ,)! where although the employer would appear to have had a more substantial reason for "cancelling" a job posting, it was held that the company was bound to complete the first posting by naming the sccessful candidate. That case, like the Union Gas case, 24 L.A.C. 159 (Lysyk), expresses the "concern . . . that if management for some reasons did not wish to give the job to a particular qualified applicant . . . it night be tempted to simply I -ll- terminate the posting". Reference may also be made to the Robb Engineering case 20 L.A.C. (2nd) 340 (MacDougalll, i \. where the question was said to be whether or not the employer had sufficient cause, acting in good faith, to terminate job posting procedures. It was said that "sound and practical" reasons must exist. The Board might well be inclined to support the employer's actions in a case that met those criteria. In the instant case, as we have indicated, there was no sufficient reason to terminate the first competition. Qualified candidates had applied within the time limits, the vacancy continued to exist, and the qualifications (on the basis of the ultimate appointment) were (insofar as they are material), unchanged. It should be added, however, that there is nothing in the evidence to show that the employer acted with‘deliberate bias or sought to discriminate improperlyagai~nstthe grievor. For the foregoing reasons, the grievance is allowed. The grievor is the only qualified applicant on the original competition of whom we have evidence. Mr. Gentile's application, not being made within the appropriate time for consideration ought not to have been considered. Our award is that the grievor be eopointed to the position in question forthwith, with compensation for any loss of earnings Chairman Member -12- from and after September 17, 1980, when , as the union argues, the fundamental error was committed and by which.timea proper appointment op. the first competition ought properly to have been made. DATED AT TORONTO, this 'I$,& day cf April. 1981.