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HomeMy WebLinkAbout1987-2592.Hawley.88-10-04“,,,^,I,Y oRowNEMPLo”EEs OEL’ONONTARIO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ,,go DUNOAS STREET WEST, TORONTC~ ONTARIO. M50 IZB - SUITE 2toD I&l, RUE ouNoAs 0”E.x TORONTO, ,ONTAaJO, MS0 128 - SWEA” 2100 *’ THE GRIEVANCE SETTLEMENT Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before BOARD OPSEU (Arlene Hawley) and 2592187 Grievor The Crown in Right of Ontario (Ministry of Natural Ras~urcas) Employer Before: N.V. Dissanayake Vice Chairperson I.J. Thomson Member L. Turtle’ Member For the Grievor: M. Ruby COUllSel Gowling & Henderson Barristers and Solicitors For the_Employer: P. Pasieka Counsel Winkler, Filion and Wakely Barristers and Solicitors Hearing: July 5, 1988 -2- DECISION This is an employee grievance filed by the grievor Ms. Arlene Hawley alleging that the Employer has failed to post and fill a vacancy which arose for the permanent position of Petroleum Resources Secretary at the Petroleum Resources Section of the Ministry of Natural Resources Offices in London, Ontario...' The grievor : claims that by the failure to post that vacancy, the Employer has contravened article 4 of 'the collective agreement. By way of relief she seeks a direction that the said position be posted pursuant to article 4. The Employer denies that a vacancy exists for the position in question. However, in addition to contesting the grievance on its merits, counsel for the Employer raises two preliminary issues. First, she contends that an individual employee has no capacity to grieve en alleged failure to post a vacancy. 'In her view, only the union has the capacity to make such a grievance. Secondly, counsel submits that the grievance is in any event premature. In order to understand these preliminary issues it is necessary to briefly review the context within which this grievance was filed. -3- The grievor had been employed as a secretary In the Regional Personnel Section of the Ministry of Natural Resources in London, Ontario for some six years prior to July 1987.. During this period the grievor had some disputes with the management. As a result, she filed several grievances, and complaints before the Public Service Labour Relations Tribunal and the Ontario Human Rights Commission. By a memorandum of Settlement .' executed on June 3, 1987 all of these disputes were resolved. Paragraphs one and two of the memorandum read as follows: 1. The Ministry agrees to place Ms. Hawley in an acting assignment with equivalent duties and responsibilities and with equal rights,to training and development by July 1, 1987 in London Regional Office, working under a supervisor other than Mr. D. Watt and will maintain her. existing level of compensation during this assignment. 2. Ms. Hawley agrees to apply to all O.P.S. vacancies advertised in the London area at an d.A.8 or equivalent level and agrees to accept any resulting job offers which she will not unreasonably withhold. The Ministry will actively assist Ms. Hawley with these applications. Further to the foregoing terms of settlement, by memorandum dated June 26, 1983, the grievor was offered "a training and development assignment as Secretary, Petroleum Resources Section", for a period of UP to one year commencing July 2. 1987. This offer was accepted -4- by the grievor. Her one year term in the Assignment expired on July 1, 1988. However, the assignment period has been extended for a .further six months .in an arrangement which, the parties agreed, were irrelevant to this proceeding. At the time of the'hearing the grievor was still occupying the position of Petroleum Resources Secretary on the extended assignmenr period. The evidence is that prior to the grievor assuming the position of Petroleum Resources Secretary in July, 1987, it was occupied by a permanent employee for a,manber of years. That position became available for the grievor because the incumbent left the position permanently. The grievor's contention is that when her temporary assignment further to the Memorandum of Settlement expired on July 1, 1988, a vacancy was created, and that pursuant to'article 4, the Employer was obliged to post the vacancy at that time. With this factual background, the Board turns to the issues raised by Employer counsel. Her first contention, namely that the grievor lacked the capacity to grieve a failure to post a vacancy, was made in a I -5- general way. No reference was made to the language in Article 4 (job Posting) or article 27 (Grievance Procedure) in support of the Employer's pos%tion. i\!or was she able to provide the Board with any award of this Board or of a private Board of Arbitration as standing for a general proposition that no individual grievances can raise an issue of failure ta post a vacancy. In our view, if such a limitation of the ability of an employee to grieve is to be found, i: must arise out of the provisions .of the collective agreement. There are some collective agreements which create mutually exclusive categories of individual and union (or policyi grievances. Some go on to stipulate that certain kinds of grievances may only be filed under one or the other of such categories. We have examined the collective agreement applicable here and find that it does not contain any such provisions. In the absence of any specific language in the collective agreement limiting an employee's ability to grieve, any employee should be able to grieve any employer conduct which affects him/her in a material way and which he/she feels is in contravention of the collective agreement. Provided that condition is met, an employee may grieve the Employer conduct, even if the same conduct may also -6- 'properly be the subject of a union or policy grievance. In the situation before us; the position alleged to be' vacant is the very position that the grievor has occupied in a temporary capacity for over one year. There is no suggestion that she is not eligible to appiy for the position if it is posted. As the incumbent, albeit'on a term assignment, she has a greater interest than any other employee in ensuring that the job is posted' in accordance with the provisions of the collective agreement. In these circumstances, there is no reason to deny her access to the grievance procedure with respect to the alleged contravention by the Employer. Accordingly, we find that the grievor did have the ability to file the present grievance. The second preliminary objection raised by Empioyer counsel on the other hand, is in our view, a valid one. The grievance'herein was filed on January 25, 1988. The gist of the grievance is that the Employer should post the job at the end of the grievor's special assignment, namely, July 1, 1988. As a result of totally fortuitous circumstances, this hearing took place approximately two weeks after the July 1st date. However, the hearing could have just as easily have taken place prior to July -7- 1, 1938. While counsel for the grievor submits that "there is nothing wrong" with the Employer posting a vacancy in advance to be effective at a later time, CtZS issue in the grievance is whether there is a contravention of the collective agreement. And it is beyond question that as of the time of the filing of the grievance there could not have been such a violation. Therefore, the Board can reach no otherconclusion but that the grievance is premature. We so find and for that reason this grievance is dismissed. Dated this 4th day of October,.l988. Vice Chairperson Member L. Turtle Member ,