HomeMy WebLinkAbout1987-0517.Murdoch et al.89-01-161) * :a
ONTARIO EMPLOYES DE LA CO”RONNE ; CROWNEMPLoYEES DFL’“N,ARIO
GRIEVANCE CPMMISSION DE
;E?l.&;;MENT REGLEMENT
DES GRIEFS
IN THE MATTER OF AN ARBITRATION
Between:
under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Murdoch et al)
and
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Before:
For the Grievors:
For the Employer:
Hearings:
B. Kirkwood Vice-Chairperson
I. Freedman Member
W.A. Lobraico Member
P. Lukasiewicz
Counsel
Gowling & Henderson
Barristers and Solicitors
0. Costen
Counsel
Legal Services Branch
Ministry of Community & Social Services
June 29, 1988
September 8, 1988
Grievors
Employer
0 Page 2 a
i
DECISION
589/86 Murdoch Dated April 22.1986
59 l/86 Pucciarelli
592/86 Campbell Dated May 27,1986
517187 Murdoch Dated November 28,1986
518/87 Pucciarehi Dated November 28, 1986
Policy grievance #588/86 was withdrawn when the parties negotiated the new contract
which is currently in existence. The grievance of Ashmore Bolton, #590/86, was
withdrawn on September 8, 1988. The parties agreed that the interest of Mr. Campbell
would only be argued, if the union was successful.
The facts are not disputed. In February 1986, Lynda Nagy, a Parent Support Worker,
advised the Ministry that she would be taking her statutory maternity leave from April 1,
1986. On June 23, 1986, Lynda Nagy advised the Ministry that she wished to take a
further six months leave. The Ministry granted her request in acco&nce with government
practice and scheduled Lynda Nagy to return to work on January 10,1987. The Ministry
assigned Laura Quirke to Lynda Nagy’s position for the period commencing April 1,1986
to July lo,1986 and continued to retain her in that position until January 10,1987.
The Mhjstry did not post Lynda Nagy’s job at any time..
The grievances filed in April, 1986 claimed that the grievors were denied their rights under
articles 4 and 6 of the collective agreement, when the vacancy of a Parental Support Worker
was filled on April 1, 1986. The grievances tiled in November, 1986 claimed that the
grievers were denied the right to compete for a vacancy of Parent Support Worker which
was filled on October 1,1986.
Articles 4 and 6 of the collective agreement dated January 1.1984 to December 31, 1985,
states as follows:
“Article 4 - Posting and Pilling of Vacancies or New Positions:
4.1
4.2
4.3
4.4
4.5
When a vacancy occurs in the Classified Service for a bargaining unit position
or a new classified position is created in the bargaining unit, it shall be
advertised for at least ten (10) wotking days prior to the established closing date
when advertised within a minisny, or it shall be advertised for at least fifteen
(15) workings days prior to the established closing date when advertised
service-wide. All applications will be acknowledged Where practicable, notice
of vacancies shall be posted on bulletin boards.
“The notice of vacancy shall state, where applicable, the nature and title of
position, salary, qualifications required, the hours-of-work schedule as set out
in Article 7 (Hours of Work), and the area in which the position exists.
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.
An applicant who is invited to attend an interview within the civil service shall
bc granted time off with no loss of pay and with no loss of credits to attend the
interview, provided that the time off does not unduly interfere with operating
requirements.
Relocation expenses shall be paid in accordance with the provisions of the
Employer’s policy.”
“Article 6 - Temporary Assignments :
6.1 Where an employee is assigned temporarily to perform the duties of a position
in a classification with a higher salary maximum for a period in excess of
eight (8) consecutive working days, he shall be paid acting pay from the day
he commenced to perform the duties of the higher classification in accordance
with the next highest rate in the higher classification provided that such acting
pay shall not be less than three percent (3%) above his current rate.
6.2 When an employee is temporarily assigned to the duties and responsibilities of
a position in a classification with a lower salary maximum where there is not
work reasonably available for him in the position from which he was
assigned, he shall be paid the lower applicable classification rate to which he
was assigned, after the expiration of the (10) consecutive working days in
such lower classification.
6.3 When an employee is temporarily assigned to the duties and responsibilities of
a position in a classification with a lower maximum salary where there is
work reasonably available for him in the position from which he was
assigned, he shall continue to be paid at the rate applicable to the classification
from which he was assigned.
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6.4 This Article shall not apply to temporary assignments where. an employee is
temporarily assigned to perform the duties and responsibilities of another
employee who is on vacation.
6.5 Where an employee is temporarily assigned to perform the duties and
responsibilities of a position not covered by this Collective Agreement, he
shall retain his rights and obligations under the Collective Agreement.”
The union submitted that a vacancy was created what Lynda Nagy took her maternity leave
and the employer assigned Laura Quirke to Lynda Nagy’s position. The union submitted
that the assignment of a person to do Lynda Nagy’s job was a recognition by the employer
that a vacancy existed. As a result, the employer was under the obligation to post the
vacancy under the terms of article 4 of the collective agreement. By its failure to do so, the
employer was denying the grievors the opportunity to compete for the job.
The Ministry’s submitted that Lynda Nagy’s maternity leave did not create a vacancy
within the meaning of article 4.1 and therefore, there was no obligation on the employer
to post her position. The Ministry also submitted that no vacancy was created by the
extension of the maternity leave, as Laura Quirke was already doing the job, at the time of
the extension.
In any event, the Ministry argued that article 6.6.1 of the current collective agreement was
a coditication of what procedure was to be applied in Lynda Nagy’s situation. It provided
that terqorary assigrmsents less than six months did not have to he posted. The employer
submitted that as neither the maternity leave nor the extended maternity leave were greater
than six months, the position did not need to be posted.
The issue is whether a maternity leave creates a vacancy as contemplated in article 4 of the
wllective agreement.
This issue has been considered by the Grievance Settlement Board in the cases of B
(GSB. # 381/8O)(J. W. Samuels) and in the 3.?nj~ grievance (GSB. # 498/86)
(R.L.Verity). In the $&g~~d grievance, the Ministry directed two persons to take the
position of Acting Supervisor, while the Supervisor was on maternity leave. Each person
was in the acting position for one half of the duration of the leave. The grievor claimed that
she should have heen offered a temporary assignment to do the work done by one of the
employees covering the maternity leave. Mr. Samuels held that a vacancy has not occurred
within the meaning of article 4, as it was within the ability of the employer to reorganize its
l Page 5
workplace under section 17 of Crown Employees Collective Bargaining Act, R.S. 0. 1980
as amended, and therefore; was not contemplated by the parties to be a vacancy.
In the case before Mr. Verity, an employee, Mrs. Ellison advised the Ministry in late
January 1985, that she was going on maternity leave in July, and would not return until
Jarmary 1986 “at the earliest.” She had had a previous maternity leave of ten months. At
the time of the hearing in October 1?85, she was still on leave, but she was expected to
return.
In that case, the board found that a temporary vacancy was created when she left on her
maternity leave. The board found that “the vacancy created by her leave was for a
significant and indefinite period of time which could conceivably extend for some 6 to 10
months.” The board reviewed and accepted the principles set out by Mr. K. Burkett in &
and Ue (1976) 13
L.A.C. (26) 287. The principles which the Board accepted, are stated at page 290 and 291
of the w decision as follows:
“Arbitral jurisprudence holds that a vacancy does not exist because there is no one
filling an existing classification or because the duties of an existing classification
have been assigned to other person in other classifications. Rather it has been held
that a vacancy exists when, in the opinion of the company, there is sufficient work
in the classification to justify filling it The jurisprudence has been capsulised in Re
Polymer Corp. Ltd and Gii, Chemical and Atomic Workers. Local 9-14 (1974) 5
L.A.C. (26) 344 (Rayner), wherein it is stated at p.346:
The threshold issue that must be decided before this article becomes operative is
whether a vacancy does, in fact, exist. It is generaBy accepted that a vacancy does
not exist simply because an employee is not filling a particular classification.
Rather, a vacant position exists when there is adequate work to justify the existence
of an employee in that position, In Re United Brewery Workers, Local 800, and in
Loblaws Groceterias Co. Ltd (1967) 18 L.A.C. 420 (Weatherill), it was stated, at
p. 423:
Whether or not work is required in any particular classification...is, in my view, a
matter for the company to determine. When the company does determine that the
work is to be done in a particular classification, and there is no employee in that
classification, then a vacancy, whether temporary or permanent, exists.
In reaching that conclusion, he relied on a decision of a board of arbitration chaired
by Reville, C.C.J., Re Oil. Chemical & Atomic Workers, Local 9-599, and
Tidewater Oil Co. (Canada) Ltd. (1963). 14 L.A.C. 233. In that case, the learned
arbitrator stated: “The term vacancies...not merely means an emptiness or a vacant
position in the dictionary sense of the term, but means a vacant position for which
there is adequate work in the opinion of the Company to justify the tilling of that
position.”
And at pp. 291, Arbitrator Burkett states:
i) Page 6
“The right of the company to unilaterally decide if work exists in a classification
sufficient to create a vacancy is not, however, an unqualified right. First, it must
withstand an examination of the company’s practice. An employer cannot, on the
one hand, assert that there is no vacancy and on the other, require the work of the
classification to be done to an extent as would establish that there is a ‘job of work
being done.”
Mr. Verity found that when the employer decided to assign the work on a fulltime basis to
another employee, it was recognizing that the job had been left unoccupied and therefom
had created a vacancy.
Once Mr. Verity found that there was there was a vacancy, he held that article 4 had to be
applied as it did not make a distinction between a temporary and a permanent vacancy. At
p. 16 of Mr. Verity’s decision he states:
“Giving effect to the plain meaning of Article 4.1 it is simply not possible to restrict
posting procedures to a permanent vacancy thereby excluding a temporary vacancy
of substantial duration. Naturally, the requirement of posting a temporary vacancy will be determined on the facts of each case, having regard to the expected duration
of any such vacancy. In summary, there is simply no rationale for finding on the
facts of this case, that a vacancy as set out in Article 4.1 does not contemplate a
vacancy.”
Mr. Verity did not find that the sikpnd decision was at odds with the case before his panel.
He agreed that the board correcrly found that the position did not need to be filled, as it
could be handled by a reorganization of the workplace. However, Mr. Samuels did not
consider whether a vacancy must be permanent for article 4 to apply.
Mr. Verity realized that his decision would have consequences, which would.likely extend
beyond his particular fact situation. Although he stated that each case will depend on the
facts before it, we find that the facts in the case before his panel, are sufficiently similar to
the facts before us, that it must be applied. This is especially SO in light of the recent
decision of the Grievance Settlement Board in the u grievance (May 3, 1988)(0.B.
Sbime) in which Mr. Shime reviews the jurisdiction of the Grievance Settlement Board and
holds that the panels of the board act as one entity and not as a series of separately
constituted boards of arbitration. Accordingly, the panels should decide in unison and not
overrule each other.
In the case before this board, the maternity leave resulted in Lynda Nagy’s absence from
work for an extended period of time of approximately eight and one half months. The
6 Page 1
leave was clearly a temporary absence as Lynda Nagy was rescheduled to work for July
10.1988 which return date was subsequently extended to January 10.1987. By having a
specific term contemplated, both in April 1986 and later in June 1986, Laura Quirke was
being asked to do Lynda Nagy’s job on a temporary basis. Laura Quirke could have no
expectation to retain Lynda Nagy’s job beyond the maternity leave period and Lynda Nagy
would have the expectation to return to her job. Therefore, Laura Quirke was being
temporarily assigned to Lynda Nagy’s job.
If a person is assigned to a job, the assignment itself is a recognition that the job has to be
done and cannot be left in abeyance. It would be a different matter, if there were only
certain portions of the job which were being coveted. However, if an employee is taking
over the position on a full-time basis, the fact that it was necessary to have another
someone take over the position of another employee, illustrates that the job was vacant or
not occupied and needed to be filled and was filled... In the m case, there was no
evidence referred to in the decision, that me position that the grievor was seeking on a
temporary assignment was filled. During the maternity leave, the position sought, was not
the position of the absent employee, but the position of the covering employee. Therefore,
this interpretation is in accordance with the M decision and with Mr. Verity’s decision.
The distinguishing feature between the situation before. Mr. Verity and the situation before.
this board, is that in the Verity decision the employer was unsure of the length of Mrs.
Ellision’s maternity leave and in the case before us, the term was defined. The Verity
decision did however, find that the leave would take between nine and ten months. As the
term was also lengthy in our situation, it still falls under the umbrella of the Verity
decision.
Therefore, after considering the m decision, Mr. Verity’s decision, the necessity that
we be bound by other panels of grievance settlement board as enunciated in the ,&&
decision, and the facts before this case, we find that the vacancy did not occur when Lynda
Nagy left her job, but when the company decided that her job needed to be done in her
absence, and it assigned Ms. Quirke to do her job from April, 1986.
We cannot except the employers argument that Article 6.6.1 of the current collective
agreement which specifically exempts posting of temporary assignments not greater than
six months, is a codification of existing practices as this article was not in effect at the time
of the occurrence of the incidents before us.
- * ‘i.
We do not find that article 6 is relevant to this hearing. This grievance does not involve the
payment to Laura Quirke. The purpose of the article was to provide monetary protections
to any employee who was required to take a temporary assignment for a period greater
than eight days outside their classification, to prevent that employee from being prejudiced
financially by the move.
In summary, this board finds that a vacancy .was created on April 1, 1986 when the
employer assigned Laura Quirke to Lynda Nagy’s job. As it is a vacancy and article 4.1 is
not restricted to permanent vacancies, the job had to be posted. The grievances axe therefore
upheld with respect to the breach of article 4 of the collective agreement.
The parties agreed that posting of the job was not practical at this point. However, the
union asked the Board to remain remain seized, which it will do, to resolve any matter of
compensation that may arise as a consequence of this decision, if the parties are unable to
resolve the same.
DatedatTorontothis 16th day of January, 1989.
B. A. Kirkwocd, Vice-Chlirperson
/Awit&- 4F
W. Lobraico, Employer Nominee