HomeMy WebLinkAbout1988-0016.Campbell.88-09-29EMPLOYES DE LA COURONNE
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001 6/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between :
Before :
OPSEU (A. Campbell)
Gri evor
and
The Crown in Right of Ontario
(Mi ni stry of Community & Soci a1 Services 1
Emp 1 oyer
J.W. Samuels Vice-Chairperson
G. Nabi Member
H. Roberts Me m b e r
For the Grievor: N. Wilson
Counsel
Gowl i ng and Henderson
Barristers and Solicitors
For the Employer: M.N. Emerson
Employee Relations Officer
Human
Resources Branch
Ministry of Community s( Social Services
Hear i ng :
August 30, 1988
DECISION 2
This case raises a neat and important point, which appears to have
come up for determination for the first time. The point arises out of a
preliminary objection by the Employer, which we will decide in this award
before convening to hear and determine the merits of the grievor's claim.
When there is a temporary vacancy (for example, one created by a
maternity leave), can management fill the vacancy from outside the
bargaining unit without posting the position?
The grievor's claim relates to a position which was temporarily vacant
and which was not posted. The Employer argues, as a preliminary objection,
that, in these circumstances, it had no obligation towards the grievor under
the collective agreement.
Article 4 of the collective agreement provides for the posting of new
or vacant bargainingunit positions; and obligates the Employer, in filling the
vacancy, to give primary consideration to qualifications and ability to
perform the required duties, and to consider seniority where qualifications
and ability are relatively equal. The Article reads:
ARTICLE 4-POSTING AND FILLING OF VACANCIES OR
NEW POSITIONS
4.1 When avacancyoccurs in the Classified Service for
a bargaining unit position or a new classified posi-
tion is created in the bargaining unit, it shall be
advertised for at least ten (1 0) 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.
4.3 In filling a vacancy, the Employer shall give primary
consideration to qualifications and ability to per-
form the required duties. Where qualifications and
ability are relatively equal, length of continuous ser-
vice shall be a consideration.
However, according to Article 6.6.2, these provisions are not generally
applicable when the Employer is making a "temporary assignment". Article
6.6.2 says:
3
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.
Thus, a vacancy does not need to be posted, and Article 4.3 is not
applicable, if the Employer is making a "temporary assignment", unless the
requirements of Article 6.6.1 are met. This latter provision reads:
6.6.1 Where an employee is assigned temporarily toaa
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
(ii) the specific dates of the term are established at
least two (2) months in advance of the com-
mencement of the temporary assignment.
In sum, if the Employer fills a vacancy by means of a "temporary
assignment", Article 4 does not apply to the situation, unless two conditions
are met---firstly, the term of the temporary assignment is greater than six
months; and, secondly, the specific dates of the term are established at least
two months in advance of the beginning of the temporary assignment.
The critical issue here is "what is a 'temporary assignment"'?
The Union argues that a "temporary assignment" involves the transfer
of an existing member of the bargaining unit to another position, and does
not include the hire of someone from outside the bargaining unit for a
temporary
The
temporary
period.
Employer argues that a "temporary assignment" is the filling of a
vacancy, whoever is chosen to fill the position,
In Sikand, 38MO (Samuels), a supervisor went off on maternity leave
for four months. The Employer assigned Mrs. G to do the supervisor's job
for the first two months, and Mrs. F to do it for the second two months.
4
While F was doing the supervisor's job, Ms. A was assigned to do F's regular
job. The grievor claimed that she should have been chosen to do F's job.
The Board held that Article 4 was not applicable to this situation (at pages 4-
5):
Article 4 governs the situation when
(i) "a vacancy occ'clrs 8*e for a bargaining unit
position" , or
(ii) ''a new classified position is created",
In my viewp neither of these situations occurred. Clearly
(ii) does not apply. Similarly, I think it is stretching
the contract language to apply it to the rearrangement of
personnel to cover a maternity leave. This is not a "va-
cancy". Rather, it is the "organization" of the workplace,
in the sense it is used in section 17 of The Crown Employees
Collective Bargaining Act, 1972, which reads:
41 (1) Every collective agreement shall be
deemed to provide that it is the exclusive func-
tion of the employer to manage, which function,
without limiting the generality of the foregoing,
includes 'the right to determine,
(a) employment, appointment, complement, or-
ganization, assignment, discipline,
dismissal,
suspension, work methods and
procedures, kinds and locations of
equipment and classification of positions;
and
(b) merit system, training and development,
appraisal and superannuation, the
governing principles of which are sub-
ject to review by the employer with the
bargaining agent,
5
and such matters will not be the subject of col-
lective bargaining nor come within the jurisdic-
tion of a board."
This rearrangement of personnel is the exclusive function of
the employer.
/
It is significant that in Sikand all. of the people involved were members
of the bargaining unit before the supervisor went off on maternity leave. All
that the Employer did was shuffle the existing complement in order to cover
the overall workload of the department.
In Union, 498185 (Verity), the Board stated the issue before it as
follows (at page 4):
In this matter, the issue is whether a temporary
vacancy, resulting from a maternity leave is a vacancy contem-
plated by the provisions of Article 4 of the Collective Agree-
ment. If the answer is in the affirmative, the Employer vio-
lated the Collective Agreement in its failure to post the va-
cancy, hold the competition, and select a successful applicant.
As the Board later put it "In essence, the Union seeks to have all
temporary assignments posted" (at page 12).
The Board decided that a "vacancy" is created by a maternity leave,
and the posting procedure was applicable to the situation where the
temporary vacancy would be of "substantial duration". The Board said (at-
page 16):
Giving effect to the plain meaning of Article 4.1 it
is simply not possible to restrict posting procedures-to a per-
manent vacancy thereby excluding a temporary vacancy 6 f sub-
6
stantial 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 temporary vacancy.
The critical point about the Union case is that it was decided before
Articles 6.6.1 and 6.6.2 were introduced into the collective agreement. In
effect, these two articles largely codified the decision of this Board in the
Union case. The Board in Union held that a temporary vacancy could be a
"vacancy" for purposes of Article 4, but recognized that the expected
duration of the vacancy would be relevant in determining whether or not the
opening had to be posted, In Article 6.6.1, the parties to the collective
agreement have provided clear rules concerning the duration and nature of
the temporary assignments which will still be governed by Article 4; and, in
Article 6.6.2, they have agreed that all other temporary assignments will not
be governed by Article 4. .-
The issue raised in our case is whether a "temporary assignment"
includes the hire of someone from outside of the bargaining unit to fill a
temporary vacancy. Put another way, the issue is whether the words
"temporary assignment" are synonymous with "filling a temporary vacancy".
h order to understand what the parties mean by the words "temporary
assignment", it is useful to look at the whole of Article 6. It reads:
7
ARTlCLE 6-TEMPORARY ASSIGNMENTS
6.1.1
6.1.2
6.2
6.3
6.4
6.5
6.6.1
6.6.2
Where an employee is assigned temporarily to per-
form the duties of a position in a classification with a
higher salary maximum for a period in excess of
five (5) 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 higher rate in the higher classification,
provided that where such a change results in an
increase of less than three percent (3%), he shall
receive the next higher salary rate again.
Notwithstanding 6.1 .I, acting pay shall not exceed
the maximum of the salary range
of the higher classi-
fication except where permitted by salary note.
When an employee is temporarily assigned to the
duties and responsibilities of a position in a classifi-
cation 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 ten (1 0) cotisecu-
tive working days in such lower classification.
When an employee is temporarily assigned to the
duties and responsibilities
of a position in a classifi-
cation with a lower maximum salary where there is
work reasonably available for him in the position
from which hewasassigned, heshall continue to be
paid at the rate applicable to the classification from
which he was assigned.
This Article shall not apply to temporary assign-
ments where an employee is temporarily assigned
to perform the duties and responsi bilities
of another
employee who is on vacation.
Where an employee is temporarily assigned to per-
form the duties
and responsibilities of a position not
covered by thisCollective Agreement, he shall retain
his rights and obligations under the Collective Ag-
reement.
Where an employee is assigned temporarily t0.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
(ii) the specific dates of the term are established at
least two (2) months in advance of the corn-
mencement of the temporary assignment. .
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.
Articles 6.1.1 and 6.1.2 deal with the situation where an existing
employee is moved temporarily to a position which commands a higher
salary maximum. Articles 6.2 and 6.3 deal with the situation where an
existing employee is moved temporarily to a position which involves a lower
8
salary maximum. Article 6.5 deals with the situation where an existing
employee, who is in the bargaining unit, is temporarily assigned to perform
the duties and responsibilities of a position which is not covered by the
collective agreement. And then there are Articles 6.6.1 and 6.6.2.
In our view, it appears that, in Article 6, the parties intended to deal
with the temporary movement of bargaining-unit employees. The word
"employee" means a person who is covered by the collective agreement.
The Article sets out various terms and conditions which apply when such a
person is temporarily assigned to do the work of a position which he or she
does not regularly do. The Article does not deal with the assignment of
newly-hired employees to their first positions.
It is time that we say something about the facts in our case.
The grievor, Anita Campbell, is a Residential Counsellor 2 at the
Midwestern Regional Centre.
On November 23, 1987, Ms. Y. Schieck, a
Vocational Instructor at the Centre, went off on maternity leave for
seventeen weeks. At Ms. Schieck's request, her leave was extended for six
months and will expire on September 18, 1988. The grievor wanted an
opportunity to try the work of a Vocational Instructor. Earlier in 1987, she
had applied for the position three times when three other Vocational
Instructors had gone off on maternity leave and their positions had been
posted. Each time, the grievor was unsuccessful. She hoped to replace Ms.
Schieck. But the Employer chose not to post this fourth opening, and hired
someone from outside the facility instead on a temporary contract basis.
This new employee, Ms. S. J. Hammond, was initially hired for the
seventeen weeks of the maternity leave, and then she was reengaged for the
additional six months of the extension granted to Ms. Schieck.
9
In our view, the Employer violated the collective agreement by failing
to post Ms. Schiek's position and directly hiring someone from outside the
bargaining unit to do the job.
Article 4 requires that a "vacancy" be posted. Here there was a
vacancy, albeit temporary, just as there was in the Union case referred to
above. The Employer did not simply rearrange the workplace to cover the
absent employee,
as occurred in Sikmd, but rather filled the whole position
for the whole period of leave with someone else.
Article 4.3 obligates the Employer to fill the vacancy with the most
senior employee, where qualifications and ability are relatively equal. Thus,
if the grievor had the qualifications and ability to do the job, and her
qualifications and ability were relatively equal to other applicants, she had a
right to the job over less senior employees.
Pursuant to Article 6.6.2, the posting requirement and the
requirements of Article 4.3 are not applicable if the Employer chooses to fill
the position by way of a "temporary assignment". Though even in the case
of a "temporary assignment", Article 4 will apply if the nature and duration
of the assignment meet the conditions set out in Article 6.6.1.
In our case, there was no ''temporary assignment"---that is, no
bargaining-unit employee was moved temporarily from his or her reguiar
job. Rather, the Employer hired someone from outside the bargaining unit.
Because there was no "temporary assignment", in the sense meant in
Article 6 of the collective agreement, the Employer was obligated to post the
position pursuant to Article 4.1, and to fill the vacancy according
4.3, and the Employer failed to do these things.
For these reasons, we find that the Employer did violate the
agreement .
to Article
coUective
By the time this award is issued, Ms. Schieck will be back at work.
Therefore, even if the grievor should have been placed in the position had it
10
been posted (we note that we have not made such a finding at this stage),
there is nothing we can do to give her an opportunity to do Ms. Schieck's
iob. Furthermore, there is no monetary difference between the grievor's
..
_- -
to hear evidence concerning the grievor's qualifications and ability to do the
job. However, we will entertain submissions from the parties if one of them
does want us to reconvene, and if we do reconvene, we will hear argument
concerning an appropriate remedy for the grievor in these circumstances, if'
she should have been placed in the position.
(With addendun attached.!
/k& k&4*
6. Nabi, Member
H. Roberts, Member
Campbell, 16/88
From the facts presented, and the provisions of Article 4
of the Agreement, a Vacancy must be posted.
the Employer to fill the posted vacancy giving preference
to the most senior Employees, providing qualification and
ability are relatively equal.
that the Grievor was not afforded this opportunity and the
terms Of the Agreement has been violated. 1 fully concur
Article 4.3 obligates
The Board has rightly determined
With this decision, but am somewhat concerned on the question
of remedy.
Her grievance form states her desired settlement was to be
given the opportunity to fill the vacancy on a Temporary Basis.
As stated in the award this will not be possible if Ms. Schieck
has returned from Maternity leave. It is my submission however,
that she has been unjustly treated by the Employer and some
form of compensation be made as an acknowledgement of unjust
practice. An order that a letter of apology to the Grievor
would seem appropriate under this circumstance.
Gordon A. Nabi