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Home My WebLink About1981-0561.Lavigne.82-04-29IN THE MIiTTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING AC? Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU !Yvon Laviqne! -And - Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: Professor R. J. Delisle - Vice Chairman S. ~Dunkley - Member N. Cazzola - Member For the Grievor: J. Shilton Lennon, Counsel Golden Levinson For the Employer: N. H. Pettifor Staff Relations Supervisor Dersonnel Branch ‘Yinistry of Transportation & Communications Hearing: April 19, 1952 The grievor complains that he was discriminated against in his application for the position of Patrol Operator A in Patrol 811, Elliot Lake. This position carries the classification of Highway Equipment Operator 1 (B.U) and it appears to be common ground between the parties that the grievor possesses the necessary skills and abilities for the classification. The job posting ~for the position contained the following preamble: "This competition is open to probationary and regular staff of this Ministry and the public within the geographical boundaries of the Elliot Lake, Walford and Blind River Patrols." The gtievor resides in the City of Sudbury, a distance of some 60 km. from the easternmost boundary of the above noted areas. The grievor, perhaps not unnaturally considering the ambiguity in the above preamble, considered the geographical limitation not applicable to members of the staff in the Ministry. It appears to be accepted by both parties that the preamble did in fact limit geographically the applicants whether they were employees in the Ministry or members of the public and it was on th.at sole basis that the applicant's application was denied. The grievance as filed with the Ministry on August 27, 1981 asked for consideration and an interview for the position though before this Board the grievor sought to assert his entitlement to the position over the incumbent who had less -2- seniority at the time of the application. The incumbent was notified of the hearing but chose not to attend. The reimbursement policy of the Government for relocation expenses as noted in the Ontario Manual of Administration imposes as eligibility criteria the need for the transferred employee to come from a distance of at least 40 km. from his former place of residence. The position of the Ministry before this Board was that they were entitled to impose geographical limitations as threshold qualifications for persons seeking new jobs and that this limitation was a reasonable one considering the expenses that would otherwise be imposed on the Government in relocating prospective employees. Again, according to the Ontario Manual of Administration the policy re staffing provides: "Area of Search The area deemed necessary by management to attract qualified and acceptable candidates for a competition. 1.. Considerations, in Determining Area: . The following must be considered in determining a reasonable area of search: - all relevant Acts, policies and procedures relating to staffing actions; - the size of the candidate population required to identify not less than three acceptable candidates; - the need to provide career opportunities for civil servants; - 3 - - the need, when recruiting outside the civil service, to ensure that civil servants are given opportunities to apply and to be considered: - the urgen:y and cost in satisfying the staffing needs of the ministry program." D. Strong, head of the Administrative Services in District 17, chaired the selection panel on this job posting and it was that panel that chose the geographical limitations described above following Strong's examination of eligible applicants in that area. He determined from his records that there were three classified staff and two seasonal staff within the area who were eligible to apply and of course noted that members of the public as well were entitled. He testified that it was normal practice to fill Patrol staff by going to the local areas to avoid relocation . expenses. He estimated for the board that relocation expenses would average roughly $15,000 for a person who owned his own home. As it developed only two applications were forthcoming for the job posting, that of the incumbent and of the grievor. Strong admitted that in hindsight he chose an area which was too small and that on another occasion he would go to a larger area. The grievor attached to his application a notice to the Ministry that while he lived in the Sudbury area he owned a dwelling within the boundaries of the Blind River Patrol and that he was prepared to relocate within the boundaries of Elliot Lake and that there would be no expense necessary on the Ninistry's part. -4 - It is against this background that the grievor maintains that the Ministry is in breach of Article 4.3 of the Collective Agreement which provides: "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 grievor maintains that the employer is in breach in setting a geographical residence at the time of the application as one of the "qualifications". The employer on the other hand maintains that management has the unrestricted right to select the area of search and that the staffing policy noted in the Ontario Manual is government policy applicable to all Ministries which has never been challenged until this grievance. The employer, of course, relies on Section 18 of the Crown Employees Collective Bargaining Act which provides: "18(l) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions: and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of the board." The employer notes that had the griever been considered for the position and had,he been successful then the employer would be subject toga grievance by the present incumbent in that the job was awarded to one who did not have the qualifications as set out in the job posting; the employer might also be subject to grievances from others outside of the geographical limits~ who might have applied but did not believing that they did not possess the necessary qualifications: see decisions of this Board, I Marks, 566/80 and Chittle, 273/80. I In Re Algoma Steel, 19 L.A.C. 236, 239 (Weiler,1968) we note: "Management has the presumptive privilege of making changes in the organization of its work force, as long as it is exercised in good faith and for purposes of business efficiency, rather than the undermining of provisions of the agreement." -6- I We are satisfied here that the employer, given the task of managing public funds, promotes business efficiency by limiting the area of search and we see nothing in the Collective Agreement that in any way limits that right. Counsel for the grievor suggested that the ability in the 'employer to limit the search held the seeds for possibility of abuse in that the employer might, prior to posting, regard those who are eligible and then limit the area of search to ensure awarding the job to its preselected candidate. The short answer to that possibility resides in the thought that then the employer would be subject then to attack on the grounds of bad faith: in this case no allegation of bad faith was made nor evidence of the same led. We are confirmed in our view of the unrestricted right in management to select the area of search in the absence of provisions in the collective agreement to the contrary by the presence in the collective agreement in article 24 - Job i Security, limitations on the assignation of employees designated as surplus to vacancies within a set geographical area. The grievor also relied on the decision of Re - Canadian Pacific Limited, 19 L.A.C. (2d) 202 (Schiff, 1978) for the proposition that geographical limitation on the applicant's candidacy was discriminatory. We are satisifed however that the result in that award was dictated by the particular provisions of the collective agreement ..’ 5T , ., " -7- there under review and accordingly has no application to the instant grievance. In the result the grievance is dismissed DATED at Kingston, this 29th day of April , 1982. J Ronald J. Delisle, Vice-Chairman "I concur" S. Dunkley, Member nI concur" N. Cazzola, Member