Loading...
HomeMy WebLinkAbout1986-0585.Tharakan.88-05-20IN TBE MATTEH OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GKLEVANCE SE~TLEP,BNT BOARD Berween : OPSEU (C. Tharakan) and The Crown in night of On tario (Ministry of Consumer and Commercial Helacions) Grievor Emgloyer Before: ------ J. Forbes-Roberts Vice-Chairman J. Solberg nember P.T. Collict Member SOL the Grievor: H. Sharse COUllSel Gowling & Henderson Barristers 5 Solicitors For the Employer: J. J. O'Shea Co-ordinator, Staff nelations Human Kesaurces Branch Minisrry of Consumer and Commercial tielacions Hearing: October 28. 1987 DECISION -------- This grievance involves a job competition for the position of Public Inquiry Clerk in the Ministry of Consumer and Commercial Relations. The position, at the relevant time, attracted a classification of Clerk 3 General. The grievor claims, and the Employer does not dispute, that his application for the position was not considered. The somewhat novel aspect of this case is that the Employer contends that the application was never received, and it was thus under no obligation to consider’the grievor for the job. The job Posting went up on January 10, 1986. The closing date for applications was February 3, 1986. In evidence the Employer’s witness stated that it was common to receive applications in one of three Ways; through the”norma1” mail, through internal mail, or by hand delivery. It was the grievor’s evidence that on February 3, 1986 he hand delivered to Personnel three applications in response to separate postings. This was done prior to the receptionists arrival. In other words, the three separate envelopes were left on her desk. He subsequently received standard acknowlegement letters for two of the applications, but not for the application for the job at issue. It was the grievor’s evidence that in the past he had responded to approximately fifty job competitions, but he had not always receieved acknowledgements. Very shortly after February 3, 1986, the grievor went off on sick leave. The period for which he was off is unclear. At any rate, some two to three weeks after his return he discovered that not only had the interviewsbeen completed but the successful candidate had already been chosen. The grievor then went to the Contoller of Records and inquired as to why he (the grievor) had not been awarded the job. Mr. Leafloor responded that no application had been receieved. The grievor said “I did apply and I’m going to grieve.“. The grievor had repeatedly applied for this position in the past, and had made it known to at least his direct supervisor that he very much~ wanted it.. The position was, as he put it, “the natural progression in my career”. Several months earlier he had posted for the same position and been granted an interview. The Employer called one witness, Ms. Lynn Gottschling who at the time of the grievance was a Human Resources Planning and Developement Officer, and part 01 the selection panel for the contested job. She testified as to the procedure by which applications are stamped and placed in the appropriate competition file. She stated that “every effort” is made not to lose applications. However it was also acknowledged that approximately one thousand applications per week are received by Personnel. At Mr. Leafloor’s request Ms Gottschling ordered a records search, but the grievor’s alleged application could not. be found. The grievance was thus denied. The Union had two arguements. First the application was filed in a timely - 2 - fashion, and at the very &&the grievor should have been~considered for the position. second, since the grievor had made known his interest in the job he should have been considered even if he -file an application. We specifically reject the second arguement. Article 4.1 of the collective agreement states: When a vacancy occurs... it shall be advertised for at least ten ( 10) working days prior to the established closing date when advertised within a Ministry, or it shall be advertised for at least fifteen ( 15) working days prior to the established closing date when ad- vertised service-wide. The contractual obligation on the Employer is very specific-it must advertise vacancies. It is not required to conduct a personal poll. It may encourage persons to apply, but is under no obligation to do so. If an employee does not comply with the procedure set out in the posting, the Employer is not re- quired to consider him or her. We turn now to the Union’s first arguement, ie. that the grievor did file his application in compliance with the accepted procedure and in a timely fashion. Obviously the Union bears the onus in this case. However it need only satisfy us that on the balance of probabilities that the application was filed. It was the grievor’s unshaken testimony that he did turn his in on February 3, 1966. The best the Employer can say is it can’t &I&it, therefore it didn’t happen. As noted above, the Personnel office processes one thousand job applications per week. It does not contort the imagination to envision one ‘going missing” occasionally. We find that the Union has met the necessary evidentiary onus, and the grievance suceeds. We now turn to the matter of remedy. The Union urged that this Board ought to simply award the job to the grievor. In the instant competition there were seven ‘acknowledged’ applicants. Of that number four were judged sufficiently qualified to receive interviews. We have no informatiom as to their qualifications relative to the grievor’s, nor is that a judgement that we should necessarily make. We choose not to award the job. In the alternative the Union argued that the competition should be re-run. This is an unwieldly process which is probably unnecessary. Given his previous experience it is safe to assume that had his application been received, the grievor would have been granted an interview. His score would then have been considered against those of the other four persons who were also granted interviews. Those four scores are still available. The only missing factor in the equation is tie grievor’s, We therefore direct that the Interview Panel be reconstituted, and the grievor be granted an interview. The Panel must use the same technique and questions as were used in the actual competition. Mr. Tharakan’s score should then be fairly considered in relation to the four already available. Any experience the grievor has acquired w the closing date of the. competition should not be considered relevant. The Board will remain seized of the matter in the event of difficulty in the implementation of this award:~ DatedatTorontothis 20th day of nay, 1gfjS. D., J. Forbes-Roberts, Vice Chairman .I J. Solberg, Member F.T. COlliCn, riember 1 ADDENDLIN This member basically is in concurrence with this award, owing to its particular circumstances. It is essential, however, that this concurrence should be qualified, as follows: 1. 2. 3. Had Mr. Tharakan's application for the posting been received, it is possible that he.might not have been interviewed. Every "latecomer" should not have an opportunity to request consideration for a job posting oppor- tunity. Should it be found that Mr. Tharakan is superior to the other four candidates who were interviewed for the subject position, there should be no lia- bility on the employer to compensate him for the wage differential from the time of appointment of the individual selected and the time when Mr. Tharakan might be assigned to the position. The position with reference to "remedy" is predicated upon the fact that the employer was not found to have erred in any way with reference to the processing of job posting applications. F. T. ColliCt,