Loading...
HomeMy WebLinkAbout1988-0362.Fernandez.89-01-09 ON rA RIO EMPL 0 Y£$ DE LA COURONN£ CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE coMMISSION DE SETTLEMENT Ri GLEMENT BOARD DES GRIEFS fSO DUNDAS STREET WEST, TORONTO, ONTARIO. MSO 1Z~ - SUITE 2~00 TELEPHONE/T£L~'I~..IONE TSO, RUE DUNDAS OUES~ TORONTO, (ONTARIO) MSG 1Z8-BURE. AU 2~O0 (418~ 5g~8-0~88 0362/88 IN THE HATTER OF AN ARBI?RATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT \ Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (J. Fernandez) Grievor - and - The Crown in Right o~ Ontario (M(nistry of Community and Socia) Services) : Emp]oyer Before: R, J. DelisIe Vice-Chairperson P. K]ym Member A. Merritt Member For the Grievor: J. Pau] Grievance Officer Ontario Public Service Employees Union For the Employer: S. Patterson Counsel Legal Services Branch Ministry of Community and Social Services HEARING: December 2, 1988 DECISION By a grievance dated April 15, 1988, the grievor complains that the employer is in violation of Article 4 of the Collective Agreement in denying him the pdsitton of Librarian/Junior Programmer. Tt~e employer raised a preliminary objection that the grievance was not timely in accordance with .Article 27.2: 27.2.1 An employee Who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor wfhin twenty (20) days of first becomin8 aware of the complaint or difference'. 27.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (?) days of the discussion, it may be processed within an additional (10) days in the following manner. Ue have determined that the objection is well taken' and the grievance is · accordingly dismissed. The position sought by the grievor was posted for competition with applications to be in by December 18, 1987. The position was evidently fille~ in early gebruary, 1988. The grievor was not formally notified of his failure to obtain the position but heard via the grape vine that another had been placed in the 3ob. On February 11, 1988 he discussed the issue with the Director, 'Sam Marafiott. He expressed his shock and disappointment and complained that he had not received written notif~cation. According to the grievor, "Marafioti made it clear to me that the other person was successful and I wouldn't be." The grievor acknowied~es that his grievance is out of t~me according to the Collective Agreement but sought to make out a case of estoppel. The evidence concerning the grievor's meeting with Marafioti and other meetings with his Supervisor, Stephen Cooke, is somewhat in conflict, According to Cooke all he ever said to the grievor was that he should apply in future to other postings as they came up. According to Maraftoti he tried to be supportive of the grievor and encouraged him to apply for future positions. He also told him there'd be other opportunities coming up but he never promised him e job. The grievor recalls thc Marafioti told him on February 11 that there'd %e another position opening up in Operations and that he, the grievor, should maintain contact with his supervisor Cookeaoncerning this position. The grievor contacted Cooke, Cooke didn't know any new position but said he'd look into it. The ~rievor contacted Cooke three or four more times about what wa~ happening regarding the new position but nothing developed. The grievor contacted the union who advised him to file a grievance and he did so. The grievor testified: "I was not really interested in the Operations job. I was still interested in the librarian 3ob." Even if we accept the grievor's description of events, we cannot say that i~ was reasonable for the grfevor to infer that his complaint was being dealt with and that he would be successful in securing the Librarian/Junior Programmer job without the need to file a grievance. We cannot say that the. employer's actions raise an estoppel against their invocation of the timeliness argument, By the employer's responses at the Stage One and Stage Two levels (Exhibits 2 and 3) it is clear also that the emploMer has never waived their right to rely on the time provisions. In the event therefore the grievance is dismissed. Dated at Kingston, Ontario this qth day of January, 1989. ~;~.J.~..~elisle, Vice-Chairp. rso~- A. Merri~, Member