HomeMy WebLinkAbout1987-1544.Daniels.88-04-25TELEPHONE* rr9/599-0999
1544/87
Between: -------
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THH GRIEVANCE SETTLEblENT BOARD
Before: ----_-
FOZ the Grievor: ---------------
For tne Emgloyer: _---__----------
Rearing: ---.----
OPSEU (George Daniels)
and
The Crown in Right of 0ncari.o
(ministry of the solicitor General)
D. Fraser
Vice-Chairman
I. Freedman Member
G. Peckham i-tember
N. Blight
Counsel
Gowling and Henderson
Barristers and Solicitors
N. I'leishman
Counsel
Ministry Of the AtcOrney General
Fepruary stir; 1988
Grievor
DECISION
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The grievor, George Daniels. is a contract employee working as a file clerk
in the Ministry of the Solicitor General. As such he is a member of the
unclassified service and is not a civil servant. Neither is he a seasonal
employee. In early 1987, he applied to a job competition #SG 303/86 to fill a
position in the classified service, and was unsuctiessful. He has alleged that he
was denied that position “as per Article 4 of the collective agreement”, and
seeks confirmation in the position with full retroactivity and interest from May
5th. 1987.
The employer has raised the preliminary objection that Article 3 -
Unclassified Employees, of the collective agreement determines which terms of
the agreement apply to unclassified employees, and those terms do not include
Article 4 - Posting and Filling of Vacancies or New Positions.
Therefore, the Employer has submitted that this grievance. based on a
violation of Article 4, is not arbitrable. and should be dismissed. The board
has agreed to deal with this preliminary objection, and either to hear the case
later on its merits if the objection is not successful, or to dispose of it should
the objection succeed.
Before reviewing the various submissions on this matter, we woluld .noce
that counsel for the union conceded in her argument that .Article 4 does not
directly apply, although she relied on its content to provide “governing princi-
ples and .standards” for an appraisal of the grievor alleged to have been made
during the competition pursuant to Section 18(2)(b) of the Crown Employees COI-
lective Bargaining Act. and it is in the notion of such an appraisal that co11nse1
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for the Union primarily sought to establish jurisdiction for this board to pro-
ceed. We will deal with that issue in some detail later, but raise it now to
indicate the agreement that Article 4 does not directly apply, and to limit our
consideration of that matter to a brief review.
As submitted by counsel for the employer, Article 3.1 limits the terms of r
the agreement that apply to the grievor to those set out in Article 3, and Arti-
cle 3.2 provides that “Sections 3.3 to 3.15 apply only to unclassified staff other
than seasonal employees,” and thus to the grievor.
Article 3.15 provides that “The following Articles shall also apply to
unclassified staff other than seasonal employees: Articles 1. 9, 11, 12. 16, 16.
17, 21, 22~, 23, 25, 27, 32, 36’and 85.” No other sub-articles of Article 3 make
reference to Article 4, and thus that Article does not apply directly to the
grievor by virtue of the collective agreement. AS is conceded, any grievance
relying on such direct application must fail as not being arbitrable, which is a
result that may be found in Campbell and Ministry of Health, 1088186 (Draper).
That decision followed similar decisions in Wood and Ministry of Tranmrtation
and Communications 1527/85 (Delisle), and Ahluwalia and Vashist and Llini~~r~,
of Transoortation and Communications 725/83 (Springate).
Thus the preliminary objection of the employer, on a ground conceded by
the union, is successful, and we so find,
However, counsel for the union, in responding to this successful objection.
submitted that there were two other grounds which made cho grievance
arbitrable and gave us jurisdiction.
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Her first submission was that Section 18 of the Crown Employees Collec-
tive Bargaining Act provided a right to grieve as Mr. Daniels’ interview during
the competition process constituted a grievable appraisal as found in Section
18(2)(b). Her second submission was that as the preamble to the collective
agreement required, inter alia, the establishment and maintenance of “satisfac-
tory working conditions” for all employees, the failure of Mr. Daniels to succeed
in some twenty applications for classified positions over a period of ten years
of satisfactory employment as a contract employee is in abrogation of that
requirement in the preamble. Therefore, it was submitted, some standard of
review needs to be applied.
Article 4 of the collective agreement and Section 18 of the Crown Employ-
ees Collective Bargaining Act each read as follows:
“ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW POSITIONS
4.1
4.2
4.3
4.4
When a vacancy occurs in the classified Service for a bargaining
unit position or a new classified position is created in the bargain-
ing 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 advertised 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 he 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 t.he cil-il
service shall be granted time off with no loss of pay and ,with no
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loss of credits to attend the interview provided that the time off
does not unduly interfere with operating requirements.
4.5 Relocation expenses shall be paid in accordance with the provisions
of the Employer’s policy.”
. .
“S.18--(I) Every collective agreement shall be deemed to provide 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 classifica-
tion of positions; and
(bl merit system, training and development, appraisal and super-
annuation, 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.
(2) In addition to any other rights of grievance under a collective
agreement, an employee claiming,
(a) that his position has been improperly classifledf
(bl that he has been appraised contrary to the governing princi-
ples and standards: or
Cc) 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. R.S.O. 1980, c. 108. s.18.”
And the preamble of the collective agreement is found in the following
terms:
PREAMBLE
1. The purpose of this agreement between the Employer and the linion
is to establish and maintain:
(a) satisfactory working conditions and terms of employment for
all employees who are subject to this Agreement:
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(b) a procedure for the prompt and equitable handling of
grievances and disputes.
2. It is understood that the provisions of this Agreement apply equally
to male and female employees.”
In more detail, counsel for the union argued that Mr. Daniels’ right to
grieve the competition in question arose from S.18 in the following way. Section
.
18(2) applies to members of the unclassified service by virtue of S.2 of the
Public Service Act. That proposition is not contested. S.18(21 reads in part
that
“(21 In addition to any other rights of grievance under a collective
agreement, an employee claiming,
(bl that he has ‘been appraised contrary to the governing
principles and standards;
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 application under section
19.”
Counsel then submitted that if an interview is given to an unclassified
employee pursuant to a job competition, the employee has then been appraised
pursuant to s.l8(2l(bl. If that, is the case, a right to grieve arises if such
appraisal has been “contrary to the governing standards and principles.” and
that,is a matter which the hoard has jurisdiction to assess on its merits. What.
then, are “the governing standards and principles”? They are the ones which
govern the competition. What governing standards and principles were applied
to the competition? Given that classified employees applied for the compet,ition.
they must be the standards and principles found in Article 4 of she collecti\-i>
consider length of continuous service.
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agreement. For example, Article 4.3 requires the employer to give primary con-
sideration to qualiflcaitons and ability, and where such are relatively equal, to
Thus, although the grievor as a member of the unclassified service cannot
grieve the direct application (or non-application) of Article 4 to him, as‘no
such right is provided; Lf he has been interviewed, he may (a) grieve that
interview and any consequent evaluation as an appraisal “contrary to the
governing .principles and standards,” by s.l8(21(bl of theAct, and (b) adopt
such principles and standards as are found in Article 4 as the ones which were
“the governing principles and standards.”
That completes our review of the position taken by counsel for the union
on her first submission. She thereafter distinguished the three cases cited ear-
lier by counsel for the employer as not having dealt with the arguments
respecting s.l8C2)(b) of the Crown Employees Collective Bargaing Act. and
invited us to find arbitrability, and consequent jurisdiction by virtue of the
right to grieve found in that section.
Counsel responded to this submission by noting that it requires the con-
cept of appraisal found in s.l8(2)(b) to be a competition appraisal. He :irglled
that it is not so: it is a performance appraisal, and he referred the’board to
Isaac and MacIsaac and Ministry of the Attorney General ?42/83 and 2-ti84
(Kennedy). wherein such a finding had been made.
The Isaac and MacIsaac case was primarily concerned with a timeliness
issue involving two grievances respecting a joh competition. but the notion ot
P
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an appraisal as found in s.l8(2)(b) was also explored by the board which noted
the following (at p.18):
“The substance of the grievance which is before us related to challenging,
in the context of a job competition, the selection that was made by the
Employer. It is true that that selection process involves an assessment
of the competition candidates. but it is our view that an apptais,al. m fall
within the principles of Section 18(2)(b) of the G. involves an appraisal
of the employee in the performance of his existing job with a view either
to constitute an ongoing record of his performance in that job or to sup-
port some particular action or sanction with respect to that job. In the
context of a job competition and an employer selection in that competi-
tion, however. we are outside of the concept of ‘an appraisal within Sec-
tion 18(2)(b) of the m, and the right to challenge the Employer’s selec-
tion is found, not within the statute, but within the language of the Col-
lective Agreement.”
We adopt the views found in the above excerpt, but with two additionai
comments. The first is that the context of Section 18 supports the view of the
board we have quoted, that the concept of appraisal as found in s.l8(2)(b) does
not refer to a job competition.
When s.18 is read in its entirety, s.lB(l) restricts various matters to the
exclusive function of the employer, and s.18(2) provides a right to grieve for a
series of matters. It is apparent that ss.(2) creates various listed exceptions tc
ss.(l). For example, there is a right to grieve an improper classification in
s%(2)(a), which is a limitation on the employer’s exclusive function tn determine
classification of positions found in ss.(l)(a). There is a right to grieve dis-
cipline, dismissal or suspension without just cause in SS.(~)(C). creating a
limitation on the employer’s exclusive function to determine discipline. dismissal
and suspension in ss.(l)(a). One may therefore conclude that the right to
grieve having been appraised contrary to the governing principles and standards
found in ss.(?)(b). is a limitation on the “appraisal” by “governing principles”
found in ss.(l)(b).
?c
:.:.
That latter entire sub-section gives the employer the right to determine
“merit system, training and development, appraisal and superannuation, the
governing principles of which are subject to review by the employer with the
bargaining agent.” These matters are concerned primarily with on-going per-
formance and training in various’respects, and do not refer directly to job com-
petitions. The context of s.18 accordingly gives support to the conclusion found
in Isaac and MacIsaac, in the quote above.
Our second comment is that the excerpt quoted ends with a view that the
right to challenge the employer’s selection is found not in the statute but in
the collective agreement. We would reiterate that it has been conceded in this
case that no such right exists for the grievor herein from Article 4 of the col-
lective agreement, and we conclude that Section 18 of the Act does not provide
the jurisdiction sought to be established by the union
We turn finally to the issue of the Preamble to the collective agreement.
wherein the union seeks to prove that the requirement to “establish and main-
tain satisfactory working ,conditions” has- been abrogated by Mr. Daniels’
failure to succeed in some twenty applications for classified positions over a
period of ten years of satisfactory employment as a contract employee. and that
such abrogation is, in essence, a grievable violation of the collective agreement.
It is our view that whatever the equities of this situation may be, our
jurisdiction to hear a grievance from Mr. Daniels is specifically determined b?
the articles referred to earlier. and nowhere do they create a right to grieve an
alleged violation of the Preamble. Even if we were to attempt to take the
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broadest view of the Preamble and view it as more than a valuable aid to
intepretation of the collective agreement, which we would be reluctant to do in
any event,‘we would be barred by Article 27.16 from creating a new right to
grieve its abrogation, in view of the specific enumeration of such rights else-
where in the agreement. Article 27.16 denies us jurisdiction to “alter, change,
amend or enlarge” any provision, and that would be’an absolute bar to such a
result.
In the result, this grievance must be dismissed as it is not within our
jurisdiction to review an alleged violation of Article 4 for an unclassified.
employee, and as jurisdiction to hear the matter alIeged is neither found in
Section 18(2)(b) of the Crown Emdlovees Collective Bargaining Act, nor in the
Preamble to the collective agreement.
Dated at Ottawa this 25th day of April, 1988.
,_-.
L-L-.
D. Fraser, ‘Vice Chairman