HomeMy WebLinkAbout1987-1617.Grossman et al.88-07-27EMPLOY~S OELA CO”RONNE DE L’ONrARIO
CQMMISSION DE
SETTLEMENT REGLEMENT
DES G~RIEFS
Between:
Before:
1617187
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (J. Grossman et al)
Grievers
The Crown in Right of Ontario
(Ministry of Community and Social Services)
Employer
M.K. Saltman Vice Chairman
F. Taylor Member
H. Roberts Member
For the Grievers: N.R. Wilson
Counsel
Gowling & Henderson
Barristers & Solicitors
For the Employer: W. Emerson
Employee Relations Officer
Ministry of Community and Social Services
Hearing: February 29, 1988
2
DECISION
There are five grievances in this case, concerning
six temporary assignments. Three of these assignments were to
bargaining unit positions and three were to management positions
outside the bargaining unit. The claim in each of the grievances
is that the Employer violated the collective agreement in failing
to post notice of the temporary assignments. At the outset of
the hearing, the Employer objected to the Board's jurisdiction to
deal with this claim in respect of positions outside the
bargaining unit. The parties agreed that the Employer's
jurisdictional objection would. be dealt with before proceeding
with the merits of the grievances.
The facts which are relevant to a determination of
the preliminary objection are as follows: At some point, which
was not established, the incumbent left the position of
Supervisor, Residential Counsellor, classified as OM 14, which is
a position outside the baigaining unit. (For ease of reference,
this position was referred to by the parties as Residential
Counsellor 4 ("RC 4")). Subsequently, two Residential
Counsellors 3 ("RC 3's") were assigned for successive periods of
four months each to cover the RC 4 position which had been
vacated. As a result of these temporary assignments, a gap was
created at the RC 3 level. In order to fill the gap, two RC 2's
were assigned to fill in for the RC 3's who were temporarily
assigned to the RC 4 position.
The grievances of Judi Corbett and Susan Brown claim
that the temporary assignments to the RC 3 posit.ions ought to
have been posted. The grievances of Judy Grossman and Cynthia
Linders claim that the temporary assignment to the position of RC
4 ought to have been posted and the grievance Virginia Forsthye
claims that both the RC 3 and RC 4 positions should have been
posted. The parties agreed to adjourn the hearings respecting
the assignments to the RC 3 positions pending a resolution of the
preliminary objection respecting the Board's jurisdiction to deal
with grievances respecting the RC 4 position.
The issue to be decided in order to resolve the
preliminary objection is whether the temporary assignments to the
RC 4 position ought to have been posted. In order to decide this
issue, it is necessary to consider the following provisions of
the collective agreement:
r 4
"ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW
POSITIONS
4.1 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 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 be posted on bulletin boards.
II
. . .
"ARTICLE 6 - TEMPORARY ASSIGNMENTS
. . .
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.
6.6.1 Where an employee is assigned temporarily
to a position, Article 4 (Posting and
Filling of Vacancies or New Positions)
shall not apply except where:
(i) the term of a temporary assignment is
greater than six (6) months'
duration, and
5.
(ii) the specific dates of the term are
established at least two (2) months
in advance of the commencement of the
temporary assignment.
6.6.2 Except as provided in 6.6.1, in no case
shall any provision of the Collective
Agreement with respect to the filling of,
assignment or appointment to a vacancy
apply to temporary assignments."
The Employer submitted that the obligation to post
vacancies arises from Article'4.1; that.Article 6.6.1 extends
the application of Article 4.1 to temporary assignments of
greater than six months' duration provided that certain
conditions are met; and that the provisions of Article 4.1 do
not apply to vacancies or temporary assignments-outside the
bargaining unit.
The Union submitted that Article 4.1 has no
application to temporary assignments; that temporary
assignments, provided they satisfy certain conditions, fall
within the prov isions of Article 6.6.1; and that Article 6.6.1
has application both within and outside the barga ,ining unit.
Article 4.1 of the collective agreement imposes a
requirement to advertise vacancies of "bargaining unit positions
or new classified positions" in accordance with the provisions of
6
vacancies within the bargaining unit only: see Re Cunningham and
The Crown in right of Ontario (Ministry of Consumer and -
Commercial Relations) (1981), 28 L.A.C.(2d)90 (Jolliffe); Dunn
13/79 (Teplitsky); Lansey 419/82 (Weatherill). Article 6.6.1 of
the agreement deals with the requirement to advertise temporary
vacancies. However, Article 6.6.1 does not create an independent
requirement to advertise or post vacancies but merely extends the
application of Article 4.1 to temporary assignments of greater
than six months' duration provided that certain time limits are
met respecting the assignment. Article 6.6.2 confirms that
Article 6.6.1 is the only provision respecting the advertising or
posting of temporary assignments. Article 6.5, on which the
Union relied, has no application to this matter but rather
preserves the rights and obligations of employees temporarily
assigned to positions outside the bargaining unit. There are,
however, no rights or obligations respecting the advertising or
posting of temporary assignments except those contained in
Article 6.6.1, which apply to positions within the bargaining
unit only. As the RC 4 position is a management position outside
the bargaining unit, it is not covered by the provisions of
Article 4.1 and, therefore, the grievances respecting temporary
assignments to the RC 4 position are inarbitrable.
The hearing will be reconvened to deal with the
grievances respecting posting of the RC 3 vacancies. The Board
will remain seized for the purposes of dealing with these
matters.
DATED AT TORONTO, this 27th day of Ju1Y* 1988.
M. Saltman. 'Vice-Chairman
H. Roberts, Member