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HomeMy WebLinkAbout1987-1525.Jones.88-04-22IN TBE PIATTEH OP AN AWBITHATION Under TtlE CROWN EUPLOYXES COLLIXTIVE BAHGAININti ACT Before ' TSE GRIEVANCE SETTLEMENT BOARD Between: --._---- Before: --._--- *or the -Grievor: ---.------------ For the Employer: ----------______ Hearing: ------- OPSEU (Wonald Jones) Grievor and The Crown in Hignt of Ontario (Ministry of tne Attorney tieneral) D. Fraser I. Freedman G. Peckham Vice-Chairman nember Herder Ii. Sharge Counsel Gowling and Henderson Barristers and Solicitors J. Mideo Staff Helations offices' Ministry Of the Attorney General Pebruary 5th, lL)&iS Employer 5 DECISION The grievance herein is brought on behalf of Mr. Ronald Jones, who alleges that “I grieve that I have been improperly and unjustly denied an opportunity to Compete for a job competition for which I applied within the Ministry of the Attorney General.” The Employer has raised a preliminary objection respecting the arbitrability of the grievance and the consequent jurisdiction of the Board 2 herein, and this decision is concerned solely with that objection. The objection arises from the fact that the competition in question was for a position excluded from the bargaining unit as it was a management. position, and that matter is common ground between the parties. The grievor was unable to attend the hearing, because of a severe family illness, but instructed Counsel to appear on his behalf and present submissions respecting the preliminary objection. An agreed statement of facts was provided at the outset of the hearing, and it reads as follows: GRIEVANCE OF RONALD JONES G.S.B. # 1525/87 STATEMENT OF FACTS ” February 5, 1988 1. The Grievor, Mr. Ronald Jones, was and is employed by the Ministry of Community and Social Services in the position of Parental Support Worker, within the Bargaining Unit. 2. In response to an advertisement which appeared in the Topi- cal/Job Mart (government recruitment publication), the Grievor -3- submitted his application for the position of Assistant Regional Manager in the Ministry of the Attorney General’s Support and Custody Enforcement Programme. 3. This position was and is classified at the A.M.-15 level in the Ontario Public Service Management Compensation Plan and is excluded from the bargaining unit. 4. The Grievor was not interviewed for this position as his application was deemed to have been received after the com- petition closing date. 5. The Employer has raised a preliminary objection to the arbitrability of this grievance and to the Jurisdiction of the Board to entertain its merits, 6. The only issue before the Board on February 5, 1988, is the determination of this preliminary objection.” The Employer then outlined the basis for the Board’s jurisdiction in the relevant statute and collective agreement and submitted that there was no jurisdiction there to hear a grievance respecting a management position. In support of his position, counsel relied primarily on the Cunningham case, 2?9/79 (Joliffe), where a similar issue before the Board in that case had been thoroughly canvassed and no jurisdiction had been found. Counsel noted that this result had been followed in the Lansey case, 419/82 (Weatherill). Counsel for the Union did not disagree with these submissions respecting the foundation of the Board’s jurisdiction and the results found in the cases cited, but she advised the Board that the Grievor’s position was that as the job had been posted and advertised as for any other competition, it would not have been the intention of the parties that. there was no remaining recourse or remedy of any sort. -4- In view of this essential agreement with the employer’s submissions, we shall review the jurisdictional situation very briefly. Section 19(l) of the Crown Employees Collective Bargaining Act, together with s. 18(21, provide the statutory basis for our jurisdiction. They read as follows: “18. - (2) In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined, or dismissed or suspended from his employment without just cause, may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19. 19. - (1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, appli- cation, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by thea greement.” These statutory provisions refer us to the collective agreement. Vacancies are dealt with in that agreement under Article 4 - Posting and Filling of Vacancies or New Positions, and the provisions under Article 4 read the following way: : 4.1 4.2 4.3 4.4 4.5 -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) working days prior to the established closing date when advertised within a ministry, or it shall be adver- tised for at least fifteen (15) working 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 rela- tively equal, length of continuous service shall be a consideration. An applicant who is invited to attend an interview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend the interview, provided that the timne off does not unduly interfere with operating requirements. Relocation expenses shall be paid in accordance with the provisions of the Employer’s policy.” Article 4.1 therefore provides a procedure which arises only “when a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit,...” In finding that this provisi’on had no application to the filling of a vacancy outside the bargaining unit, the Board in the Cunningham decision noted at p. 10 that “If it had been intended that “vacancy” should include a vacancy outside the bargaining unit, it would have been simple to omit (from 4.1) the limiting words “for a bargaining unit position” and “in the bargaining unit.” We agree with the result in Cunningham. We would briefly note in addi- tion that Article 18(Z) does not relate to the issue before us, and that Article - 6 - 18(l) reserves other matters to the exclusive function of the Employer. Article 18(l) reads in the following way: 18. - (11 Every collective agreement shall be deemed to pro- vide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization,. assign- ment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and clas- sification of positions; and (bl merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. We conclude from this simple review that we lack jurisdiction in the instant case in view of the submissions before us, which we accept and would note again were largely agreed to. We have been invited to suggest any other remedy to the grievor that may appear from our deliberations, but we regret that we are unable to do that in view of our role and lack of jurisdiction. In the result, the grievance is dismissed. Finally, we would note that the Grievor is going through a difficult per- sonal time, and we were invited at the hearing to comment in any way ~that may be helpful or provide a guide. In response to this, we advised the parties at the conclusion of the hear- ing that we had determined we lacked jurisdiction, with a brief award to be < -7- provided later, and we suggested as obiter dicta to the grievor that any further -- search for a remedy might best be done by seeking counsel in a private capacity for advice outside of the confines of the collective agreement herein. Dated at Ottawa, this 22nd day of Apri-1 1988.