HomeMy WebLinkAbout1984-1397.Solomon.86-07-07For the Griever:
I
For the Employer:
Hearing
IN THE MATTER OF AN ARBITRATION
- Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Vedanthi Solomon)
- and -
Griever
The Crown in Right of Ontario
(The Ministry of Health) Employer
P.M. Draper Vice-Chairman
I.J. Thomson Member
G.A. Peckham Member
Sandra Laycock
Grievance Officer
Ontario Public Service Employees Union
John Zarudny
Counsel
Crown Law Office - Civil
Ministry of Attorney General
June 3, 1986
DECISION
The Griever, yedanthi Solomon, grieves that in Competition HL-47-48-84
held in October, 1984, he was unfairly denied promotion to the position of Research
Clerk, classified Clerk 4 General.
The successful applicant was Ms. Carol MacIsaac, who attended the hearing
but chose not to participate.
The relevant provision of the Collective Agreement is Article 4.3 which reads:
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 Griever was the only witness called by the Union and his testimony and
the documentary evidence introduced through him re,lated to his qualifications and
ability to fill the posted position, and to his seniority. The only testimony
touching on the selection process, which was brought out in cross-examination,
concerned the Griever’s answers to some of the questions put to him by the Selection
Committee.
Counsel to the Employer elected hot to call evidence and made a motion for
non-suit, submitting that since there was no evidence as to the qualifications and
ability of Ms. MacIsaac, but only evidence as to the qualifications and ability
of the Griever, the Union had failed to adduce any evidence as to the relative
qualifications and ability of the two, which was the issue before the Board. COU”Sel
sited Tofano 478182 in which a similar situation was before the Board.
. . . . 2
It is axiomatic that the party having the burden of proof in a proceeding
before the Board must tender evidence of facts supporting the claim made -
in this instance that the Griever’s qualifications and ability were relatively
equal to those of Ms. Naclsaac.
While it may be that the evidence adduced by the Union establishes t.hat the
griever had the qualifications and ability required by the posted position, it does
not constitute a prima facie case that his qualifications and ability were relatively
equal to those of Ms. MacIsaac. For present purposes the responsibility of the
Selection Committee may be described as being to determine whether or not the
qualifications and ability of the two applicants concerned here were relatively
equal. It is the obrigation of the Union to bring evidence tending to show that
the determination made by the Selection Committee waswrong and that the quelifications
and ability of the Griever were, in fact, relatively equal co those of Ms. Hacisaac.
This ic has nor done.
The motion for non-suit is granted.
The grievance is dismissed.
DATED at Consecon, this 7th day of July, 1986.
P. M. Draper, Vice-Chairman
- G. A. Peckham, Member
- /j