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HomeMy WebLinkAbout1986-1088.Campbell.88-01-11IN THE MATTER OF AN ABB~TRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Patricia Campbell) Grievor and The Crown in Right of Ontario (Ministry of Health) Employer Before: For the Grievor: For the Employer: Hearin= P. Draper - Vice Chairman G. Nabi Member I. J. Cowan - Member M. Cherney Counsel Gowling and Henderson Barristers and Solicitors B. Neale Reg. Personnel Admin. Human Resources Branch Ministry of Health December 2, 1987 DECISION The Grievor, Patricia Campbell, is a contract employee working at the London District OHIP office. She is a member of the unclassified service, but not a seasonal employee, and is not a civil servant. She was an applicant to a job competition held in early 1986 to fill two vacant permanent positions in the classified service. The competition was open to members of both the classified and unclassified services. There were ten applicants, all from the unclassified service, of whom five, including the Grievor, were interviewed. The Grievor grieves that she should have been one of the successful applicants. It is argued for the Employer, by way of preliminary objection, that by virtue of Article 3 of the collective agreement Article 4 - Posting and Filling of Vacancies or New Positions - under which the competition was held, does not apply to the.Grievor. Since she is not a civil servant, she cannot grieve under an article that has application only to such employees. It is submitted for the Grievor that the competition was an Article 4 competition to which the Grievor was entitled to and did apply. The Employer, having conducted an open competition under the article, cannot now be heard to say that its provisions do not.apply to her because of her employment status. At'the request of the parties the Board agreed to hear and determine the issue raised by the Employer's objection, the outcome to result either in the later hearing of the grievance on its merits or in. its final disposition. i. The relevant provisions of Article 3 are: 3.1 The only terms of this agreement that apply to employees who are not civil servants are those that are set out in this Article. 3.2 Sections 3.3 to 3.15 apply only to unclassified staff other than seasonal employees. 3.15 The following Articles shall also apply to unclassified staff other than seasonal employees: Articles 1, 9, 11, 12, 15, 16, 17, 21, 22, 23, 25, 27, 3i, 36 and 85. Articles 3.3 to 3.14 do not contain job competition provisions. There is no mention of Article 4 in Article 3 and it is therefore an article that applies only to employees who are civil servants. While the Grievor has the right to grieve under Article 27 - Grievance Procedure - because it is made applicable 'by Article 3.15 to employees who are not civil servants, that right is necessarily limited to grievances based on articles which are also made applicable to such employees by Article 3. The Board cannot so construe Article 4 as, in effect, to add it to those articles now contained or referred to in Article 3. The unfortunate result, from the standpoint of members of the unclassified service, is that they have no recourse where an Article 4 competition in which they have participated may have been improperly conducted. However, this seeming inequity is for the parties, not the Board, to address. In Ahuwalia and Vashist. GSB 0725/83, the employment status of the two grievors was identical to that of the Grievor. The Board found that Article 4 did not apply to them and that they could therefore not grieve that their seniority 2 I “-’ 2. ,< ,,‘-\ . ..~ was not considered in a job competition. That decision was followed in Wood. GSB 1527/85. We concur with those decisions and accordingly find that the grievance is not arbitrable. These proceedings 'are terminated. Dated at TORONTO this 11th Day of January, 1988 P. Draper Vice Chairman /4+dld&. G. Nabi Member 3