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Home My WebLink About1983-0141.Persaud.84-04-18IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before' THE GRIEVANCE SETTLEMENT BOARD Between: OPSELI (Kharanan Persaud) Grievor - And - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: E.E. Palmer, Q.C. Vice Chairman T.J. Kearney Member G.A. Peckham Member For the Grievor: J.A. Ryder, Q.C., Counsel Gowling & Henderson For the Employer: R.B. Itenson Senior Staff Relations Officer Staff Relations Division Civil Service Commission Hearing: February 9, 1984 -2- AWARD ----- The present arbitration arises out of a grievance filed by Mr. K. Persaud on 13 January 1983, alleging he was "unjustly and improperly denied a position of Construction Group Leader .' This matter was not settled during the grievance pro- cedure and so forms the basis of the present arbitration, At the hearing in this matter,which was held in Toronto, Ontario, on. 9 February 1984, no question was raised concerning the composition of the Board, a matter relating to timeliness was. This matter : is the subject of the present award. With respect to the decision on the jurisdictional issue, there can be little doubt as to the facts and, indeed, some of the argument which lies behind it. Thus, there is no dispute between the parties,.in the circumstance of the instant case, the time limits which are imposed are mandatory. Further, it was agreed that, pursuant'to Article 21 of the Collective Agreement in effect between the parties, in effect, the grievor has 20 days from the point in which he became aware of the facts which would give rise to his grievance to file such. With respect to the question of time in this matter, it would seem that the notice of the job for which the grievor makes his claim was posted in January of 1982, the competition for such closing on 12 February 1982. Subsequent to this, the grievor was notified on 21 May 1982 that he had not been success- ful in this matter. Thus, it would seem that, in the normal case, that time would begin to run from this point. Naturally, the delay : c -3- of filing the grievance until 13 January 1983 would be well beyond the mandatory time limits here affecting the case. The essence of the Union case, then, is whether, in fact, the grievor was aware of the basis of his grievance. On the latter point, it would seem the,testimony of the grievor is dispositive. Thus, Mr. Persaud indicated 'that he had applied for the job and had gone through the procedure leading to the selection of the successful applicant[s] for the jobIs] in question. There is a certain amount of evidence given which would re,late to matters which would, from the grievor's point of view, indicate that the procedure adopted was not entirely satisfactory. Suffice it to say, however, that from the point of view of this case, the grievor was eventually satisfied with what had occurred. On the foregoing point, it should be noted that the grievor was made aware, as a result of his actions, that some 15 openings, at three locations in Ontario, were the subject of the particular posting that he had. After finding that he had been unsuccessful for any of these positions, he had made certain enquiries as to who had been successful; but he had not received a great deal of details on these. This occurred, apparently, in early June. Nonetheless, the significant aspect of.this case is that the grievor stated that he was, to~.all intents and purposes satisfied with what had occurred or, as he put it, "resigned" to the procedure. -4- The events which precipitated this grievance, however, occurred sometime over the Christmas holidays in 1982. Apparently, on returning from this vacation, the grievor was made aware of a grievance which had resulted in a.si&eenth per&c being placed in the job for which he had applied. Although Mr. Persaud was not aware of the specifics of this grievance, he now felt that there was a basis for his claim to a job in the classification in question and filed the instant grievance. _; At this point, it should be noted that the grievance just mentioned was filed by a person who had initially been successful in the competition in question. However, that person had not accepted the position as this would have required him to move from, the location where he worked. However, he subsequently filed a grievance which indicated that his job was improperly classified and should be dealt with as being identical or, at.least, so similar to the job which was the subject of the competition, that he should be reclassified into this job. This, then, was the grievance which succeeded. Further, to reiterate the point made earlier, this Was the sixteenth person in the position, which the grievor considered opened up his claim in this case. One further point was made and that was that some two weeks preceding the hearing of this matter, the grievor became aware that one of the persons who had been successful in the original competition was a member.of management. It was argued that this new evidence would also relate to the question of timeliness in this matter. -5- Without going into depth in reciting the arguments of the parties, it is the view.of this Board that the argument relating to timeliness is.one which is correct. Central to -this decision is the fact that the grievor, himself, indicated that he was satisfied, or "resigned" as he put it, that the competition was one which he would not grieve in late 1982. Be had made certain enquiries, he.knew of the results which had occurred, yet he'saw no reason to grieve. The question, then, is whether the successful grievance already mentioned would hrovide some newly-acquired knowledge which would provide the grievor with the basis for his claim. In our view, such cannot be the case. Obviously, the grievance which gave the person a position in the job in question had no relation whatsoever to the instant competition. The question of whether this person should have been appropriately classified as being in this job was one which related to job requirements which he had been doing, presumably, before the competition itself. However, even if the duties had changed at a later date and the Ministry concurred that he was entitled to be reclassified, it is impossible to see how that gives right to the grievor to claim that a totally irrelevant competition to that issue is one which he can now file a grievance upon. Quite obviously, were the case otherwise, every reclassification grievance would have the effect of opening all decisions relating to persons who are within a particular job classification. In short, in the opinion of the Board, there is a clear distinction between a job competition which creates openings determined by the Employer -6- and a reclassification grievance where new jobs within a classification may be created eventually by arbitration. Again, we see no strength in the argument of the Union that the subsequent determination that one of the original successful applicants had been a member of management gives rise to such.type of information as would allow the grievorto file a timely grievance. Quite obviously, the decision to appoint this person from management to the job in question had been made at least by May of 1982. The grievor had indicated that he had attempted to find out who these persons were. It is perhaps the case that he did not do so. None- theless, on his own testimony, he was satisfied with that decision. Not having followed the matte,r up at that time and having indicated that he was satisfied with what had occurred, it is the view of the Board that he cannot now raise this, as it were, as an after thought. For the foregoing reasons, then, this Board finds the grievance in question untimely and that we have no jurisdiction to deal with this matter. Consequently, this grievance is dismissed. -7- 1984. DATED at London, Ontario, this 18th day of April, E.,E. Palmer, Q;C. .I'. J. Kearney G. A. Peckham