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HomeMy WebLinkAbout1984-0564.Glenny.87-09-15IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: (. OPSEU (JIM GLENNY) Grievor -'and- THF, CROWN IN RIGHT OF ONTARIO (Ministry of Government Services) BEFOREi ERIC K. SLONE Vice-Chairman c J. McMANUS Member H. ROBERTS Member FOR THE GRIEVOR: A. Ryder Counsel Gowling & Henderson Barristers & Solicitors FOR THE EMPLOYER: i.. MS. Susan Currie Staff Relations.Officer Staff Relations Section Human ResourcesSecretariat \ HEARING DATES: June 11 and July 20, 1987. Employer - DECISION The'Grievor is a Property Manager 2 in the Realty Services Branch of the Ministry of Government Services. On June 1, 1984 he filed a grievance stating as follows: "STATEMENT OF GRIEVANCE: That Mr. W.H. Comartin, Manager, Property " Administration Section has contravened Article 4 of ~the Collective Agreement, in that he is. filling vacancies with (I prolonged selective secondments and contract staff. SETTLEMENT REQUIRED: That Mr. W.H. Comartin comply with Article 4 and that competitions be held for the existing vacancies." At the outset of the hearing on the first.day, counsel for the .Employer br0ught.a preliminary Motion to dismiss the grievance on the ground that it is not arbitrable as an individual'grievance. She argued that the management action complained of did not affect the Grievor personally, c. and should havi been brought.(if at all) as a union grievance. I We ruled at that time that we were not satisfied, without having heard any evidence, that the Grievor was not individually affected. Accordingly, the matter proceeded o'n the basis that we would deal with arbitrability together with the merits of the grievance. -c - 2 - Mr. Comartin, the individual whose conduct gave rise, to the complaint, was called as a witness for the Griever., He was called upon to explain his actions in connection with two particular "positions' involving the use of some four temporary personnel. TBIZ COMPUTER PROGRAMMIRG/INPUTTIBG JOB ( .' Sometime in 1983 the branch acquired a small computer to assist: with the storage and retrieval of information relating to realty taxes paid and payable on certain properties owned by the Government.. Prior to this time the branch operated ona manual information system. The : individuals responsible 'for 'that system were,the Realty Tax 'Clerk and the Realty Tax Administrator. Mr. Comartin testified that her was given permission' by his superiors to hire a co-op student on a temporary basis to train the tax k clerk and tax administrator, and to build the ,data base by inputting the existing information in the manual files. The intention of Mr. Comartin was then to have the system up and l running under the aegis of the tax clerk and tax administrator. One Winnie Wong was hired for the summer of 1983 on a contract basis to do.the job of inputting data and training the others. Her initial contract ran out August 38, 1983 c ‘~ - 3 - and, because the job was not complete, was extended forfour months and again to April 30,1984 . After this date Ws. Wang moved on to another job in a different branch of the Ministry. I Apparently the computer system was not yet up and running by April 30, 1904. Mr. Cotirtin sought and received permission to recruit a further contract employee for a six- C~ month term. Louise Peacock, who was a data processing technician 2 elsewhere in %he publ'ic, service, was seconded on a contract running between May 11, 1984 and November 16, 1984. Accordi'ng to Mr. Comartin the backlog of work kept accumulating because of the reluctance of the tax clerk and tax administrator to take over and keep up the function. Louise Peacock's contract was also extended to March, 1985. Mr. Comartin testified that he had been told at the t. outset by his superiors that he was 'not to create another full-time job in the section. He candidly admitted that he came to regret ever having obtained the computer. Lianna Haughton, who is now responsible for the realty tax are.a (since Mr. Comartin's retirement), testified that use of the computer has been suspended for about a year pending a reassessment of its usefulness. There is no one now performing the job of inputting information into this computer. - 4 - TBR PROPERTY MABAGER 1 JOB A Property Manage? 1 performs most of the same functions as a Property Manager 2 except that her latter position is more seniorand fnVolVes less SUperVision. In or about November, 1983 a vacancy Occurred When a c Property Manager 1 left. Instead of holding a job~~ competition immediately, Mr. Comartfn temporarily appointed one Rajah Gurud8Van to the job as an Acting Property Manager on a career d8V8lOpm8nt contract. Mr. Gurudevan had b88n.a Clerical employee in the ,branch since about 1978. He had aspired to be a Property Manager and had taken a number of cours.es on his own to obtain some of the necessary education. Mr. Comartin evidently admired Mr. Gurudevan's ambition and determination c and felt that it would further his career development to carry the Property Manager 1 portfolio for a while. In fact, he spent~a few months in each of tyo different portfolios. Ultimately both of those jobs were filled by a prop8rly conducted job competition. Mr. Gurudevan did not' himself succeed in winning either competition. In December, 1984 he moved on to a different job in the branch. \ . - 5 - c THE GRIRVOR'S CGMPLAIRT The Grievor complains that Article 4 of the Collective Agreement was breached in both cages. In the case of the data processing job,. he complains that a competition ought to have been held to fill the vacancy. In the case of the Property Manager 1 job he complains that the job ' competition ought to have been held immediately, instead of having been delayed while Mr. Gurudevan performed the job on a t8mpOrary career d8velopm8nt~cOntraCt. The first point we~'would make is that there was no evidence tendered which suggeets that Mr. Glenny would have wished to compete for either of the two ,jobs. Indeed, it.is illogical to believe that the Grievor would have b88n int8r8St8d in competing for either Of tW0 jobs that tier8 clearly junior to the position he already held. Mr. Ryder on behalf of the Grievor ar,guee.that it is'sufficient that the Grievor could have competed for the jobs. Re argued that i everyone in the bargaining unit is~ in,dividually affected if he or she is denied the right Tao compete, for a job, regardless of whether that lost opportunity has any real as opposed to theoretical significance to the individual. We disagree. The basis for an individual grievance is that the individual grievor have a complaint about "management action' which specifically affects the Grievor in - 6 - an immediate and tangible way"r Palmer, Collective Agreement Arbitration in Canada (2nd edition, 1983) at.Page 175. We are of the view that this Grievor was not so affected. He was in a position to observe certain management practices of which he does not approve. He had the option of complaining to the Union and requesting that a Union grievance be launched. To permit this Grievor standing would be to broaden the scope of individual grievances beyond what is necessary or, desirable to give effect to the spirit and Letter of the Collective Agreement. An analogous iSSU8 arose in this Board's decision in OPSRU (Katchay and The Crown in.Right of.Ontario (Ministry Oi :Correctional Services, 354/03. In that case the Gri8VOr Complained that the Ministry ought not to have held a particular job competition, but ought instead to have looked to a pool.of surplus employees. The Grievor was not himself in that pool. Vice-Chairman Samuel8 writing for the Board in that case stated at Page 4-5: "If the Griever were to proceed with his grievance here, this Board could be put in thee position of .ordering the employer to look to a pool of surplus employees, none of whom was qualified for the job, and more importantly, .none of whom was interestad in the job. If-there is.an aggrieved surplus employee, he or she can file a grievance. The Grievor's 'complaint' or 'difference' here is no different from an employee who is concerned about someone else being disciplined, when that someone else does not .‘. ( - 7 - feel unjustly treated. Surely no grievance could be filed because one has a ‘complaint' or 'difference'.concerning discipline meted out to someone else. An employee may have many concerns about management's actions or policies generally, but it is only when the action or policy actually affects the employee that there can be a 'complaint' or 'difference' under the collective agreement. I The Gr$evor has no personal stake whatsoever in the outcome of his grievance. His employment is totally unaffected by the employer's actions in competition Cl-0064- 82;” While arguably the Grievor in this case is in a stronger position b8CaUs8 Of his th8Or8tiCa1, right t0 enter the competition, we are of the view that the reasoning in Katchey is still applicable. The Grievor is not personally affected in any way~that is meaningful. Accordingly, the grievance is not properly arbitrable at his instance. However, since we heard the merits completely we are also in a position to.comment onthem. In our view there was i no violation of Article 4 of the Collective Agreement.in I~. either case. With respect to the computer processing job, we are of the view that this began as a job which clearly fell within the unclassified service. Under S. 6(l)(a)(i) of Reg. * 881 under the Public Service Act, management is entitled to hire an unclassified employee on a project of a non-recurring kind. Under S. 6(1)(a)(v) an unclassified employee can be hired under a-co-operative educational training program. Mr. , f - 8 - f Comartin was instructed not to ?zreate a permanent job. He was attempting to‘set up a computer system that, once up an6 running, would be maintained by the existing bargaining unit personnel. Unfortunately the project proved more difficult , than originally anticipated. Contracts were renewed and extended from time to'time. Currently the project is in limbo. We can find no basis to conclude that a new bargaining unit position ought to haV8 been created and filled by a job competition. As for the Property tianager 1 position, we are not prepared,to comment negatively on the practice employed. Und8r.S. M(l)(b) of the Crown Employ8es'Collective ,Bargaining Act the employer has the exclusive function to d8ViS8 training and development programs. The~employer here used two temporary vacancies as an opportunity to further the training and development of an eager, ,highly regarded employee-elsewhere, in the,public service. We were not told. much about the eventual job competitions that filled these positions. We.were not given particulars of the delay which it is suggested occurred prior to the competitions being held. Temporary vacancies occur at the,best of timeS.~ We are not prepared to say that the employer was wrong to delay the holding of a competition; in the'absence of some evidence as to ,the dates that the vacancies occurred and of th8 steps actually taken to post and hold the hompetiti,ons. Whiles we ! -9- can see a potential for abuse if job competitions were . regularly delayed for inordinate periods of time, we see no such abuse here. / Accordingly, we would have dismissed the grievance on the merits had we not first.decided that the matter is not : c \ properly arbitrable at the instance of this Grievor. Dated at Toronto, Ontario, this.15th day :of September, 1987: cl/ /fuea-- BRIG R. SLONE, VICE-CBAIRHAN "I dissent" (without written reason J. McMANUS, MEMBER H. ROBERTS, MEMBER (-