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HomeMy WebLinkAbout1988-0977.Kozak.90-02-02 ON T,~-' E EMPL O ¥£<. 2 £ ~A COL':: '. ',5 C,qO~ '. EU~'£OYEE$ OEL'ONrX = 3 GRIEVANCE COMMISSION DE SETTLEMENT R~[GLEMENT BOARD DES GRIEFS WEST. ?O~ON?O. oNTAt%'O. ~JE,~T. TORONTO. (ONTJ. RIO) MSG 1ZS*BUREAL~ 977,, 88 IN T~E ~ATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BA/{GAINING ACT Before .~ TBE GRIEVAt~CE SETTLF2tENT Between: OPSEU (Kozak) Grievor - and- The Crown "in Right of Ontario {Ministry of Correctional Services) ..... Employer Before: - B.B. Fisher Vice-Chairperson J. Solbe rg Member M. O'Toole MemJ:e r For the Grievor: A. Ryder Counsel Ryder, Whitaker, wright and Chapman Barristers & Solicitors For the Employer: S. Currie Staff Relations Cf[icer Human Resources Secretariat Management Board cf Cabinet Hearing: September ', 198~ This is a job competition case involving a claim by an unclassified employee that 5e should have been selected for a position in the classified se.vice. The employer rv2sed a preliminary, objection on the grounds that as ordv cl~.;:.fed employees ir. ave access to Article 4, the gr/evor has no basis for bringin~ this Lq response the Union says that the grievor 3'as improperly appointed To the c2n:~.~_~sified serv/ce and that az the time of his grievance he should 5a~-e been appointed - c~ass~-,d service, ancl if he had been so, he would have access To Article 4, This preliminary objection was then proceeded with on the grounds that the Bcx:d would decide the issue as to whether it could, if there ~vas fL-st a finding that tDe gr:.i'.'or was improperly appoimed to the unclassified service, order the employer to ap?o,/nt the grievor to the classified service. I: sDm:id be noted that solely for the purpose of ar~o'uing the preliminao' ob:~.ction the above facts were assumed to be true, but that the employer vigorously d ....that the grievor was improperly appointed to the unclassified service. The recent case of+Vagner (351/89 Vice-Chah"'person $1 one ) w.a-~ disc~se'ct " before this Board. To clate,.nei~'er party has fled an appkication for judicial review to B"~er. Neither pan3.' took the position that either Wagner was Patently wrong or that tk~:e were exceptional circumstances to d/.fferentiate this case from Wagner. It~2g~zer is the ~-st "remedy" decision of the Beresford-type cases. Wagner clearly stands for the proposition that the GSB does not have the !~c..¥er to order the employer to appoint an indi~fdual to the classical service, primarily beca::se to do so wou~cl cause the employer ~o breach Article 4 o:' the Collective .'.:.-.~'~,-~ ~.,.,.~:~. As was __~id forcefully by. Vice-Chairman £~ or~e at Page 22: But it would'be completely different were ;ye to order :hat the Employer gram classifie, d status to the Grfevor in t/uk case. We would-be ordering tile E,.mployer to cotnpound its own error. and permit the Grievor to 'jump the queue'over eve.,'.'body else in the bargainb~g unit t'or wtmse benefit Article 60 ot':.;:e Collective Agreement kffst$. We cannot and would,rot order the Employer to ovedook those dght$. .~ticle 60 is the partrtime equivalent of Article 4 with respect to postings. Thus the preliminary objection of the employer is uphe~.d insofar as the Board confirms that it does not have the power to order tee Employer to appoint someone to t/~e c~assified set'v/ce w/Ihout following the postine requirements of the Coll..c~t~ ~ Agreement. However, ~he disposition of the pretiminar).' ob.[ection in favour of the Employer does not end the grievance because there are other remedies that this Board may be able to fashion which wou~,d not involve an order requiring the Employer to appoint the grievor to the classified service. Although this Board has not in any way ruled that the following procedure is'appropriate, it may be that the Board cou!d do the following if it was found that the grievor was improperly appo:,nted to the unclassified " sev, ice. 1. Order the employer to post the vacancy that existed for the job the gdevor was actually performing at the time he filed :he grievance. In essence, this is nothing more than the usual remedy where the Union brings a grievance alleging that the employer has failed to post a job where a vacancy, exists. 2. As part of that order the griev0r would be permitted to compete, no matter what other restrictions the employer put on the compe;ition. A similar order was allowed in Wagner to insure the grievor had access to the competition even though she was no Ionuer employed ~:h the ~ :-'- ~ -3- 3. If the grievor was successful in that competition he would be granted that position (and classified status) retroactive to :5s appropriate date (i.e. date grievance or 20 days prior)." Now ~e'grievor is m be ~reated as a classified ~mnln~'~, and as loni as date of re:roactive status is prior to the relev~: date for the being grieved, the grievor ~i1 be cor~idered a classified employee for ~he pu~oses of the grieved ~ompetitiom 5, ~erefore, the employee is entitled :o access :o ~ticle 4. A sro-step procedure of this nature :o a large extent p=ts the grievor in the same position he would have been had the contrac: not been breached (i.e. had the employer posted the vacan%' created by the grievor's job) without giving something more to the employee (i.e. achieving classified status without a competition). Ar uhe -~. _qttes~+ o~f :he parties re ..... hear';r+z da:~s are be nz sec DateOatToron{o, this 2nd dayof Februaw, 1000. 7 / ~: / ~- B. ~sher, Vice C~ai~erson j. bo!berg, Memt~er .Xl. (9 l ooie, .Member CONSULTANTS .. Box 180 Toronto. Ontario MSG 2G8 ~4[6} 977-8399 ' ~ddendum from: Janet $olber(t Union ',omi nee Reference: O'PSEJ .<ozak) an;~ The ~,i-is(ry of Co:---ectio-~t Se-vices "' tt 0c~-~7/58 This 8oard interprets the Wa~.g.neT c.=.se as --tand:ng for the nroposition that a Bc~rd Qa._.OO~ orzer an Emplo>er to make appointment to 'the c' ~ssified sef',Lce. _ don'- agree. Zn my vie~, %he ~a~e- case merei~, concl ~es ~'-=~ e. Bca~ ....... ¢o~ to make an appci~nment to the -'assiZied =_=-vice ~[nc- cannot',', because such 5n appointmer- is brxnd t.:. be in ccn¢' ~tia applicable posn:-g provisior, s. 7hat is an importar% :istincticn, Beca~.se the ~econo (and l submit, more correc:} conclusion 2(9¢_a!'a~ for the that a Board may redE:re the Emmlc'.'er to ~ake ~n appointment r.o the classified service (rather fha- to a specific position io the. classified service,l, Such an a=pcintmer% ~oulc not violate the collective agreement and would rec-ify t-e stanus of the in a satisfactory man,er, ~avin9 said %hat, co agree ~ith %he Bo,-d's cecision to accept ~t}risdiction, I dc a~¢ee with :ne 5oard's deci~.ion to set of remedies, and ' do admire %~e cre~%ivit~ of the alternative framework for fashioning an a=propriate remed:/. is ~hy this submissicn is an adder, dum ra%ner than a dissent. ADD~NDU~ i concur in the dispcs:.tion of the preliminary objection of the Employer but dissoci~te myself from the speculative commen.t~ cf the majority witk respect to remedy. In my :pinion these are inappropriate in ':he absence of full e','idence and argument having been heard on :!%e subject.