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HomeMy WebLinkAbout1988-1119.Hayford.89-06-08~ ~ ~ ON~RtO EMPLOYES OE ~ COURONNE CROWN EMPLOYES DE L'ON~O GRIEVANCE C~MMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1~ DUNDAS STREET W~ TORONTO, ON~RI~ MSG 1~ - S~ 2100 TELEPHONE/~PHONE ~8~ RUE DUNDAS OUE$~ TORONTO, (ON~O) MSG --- 1119/88 IN TBS HATTER OF AR ARBITRATION Under ~ THE CROWN E~PLOYEES COLLECTIVE BARGAINING ACT Before -~ ~... TBE G~ZEVARCE SETT~EMBNT BOARD Between: OPSEU (Robert Hayford) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: N.V. Dissanayake - Vice-Chairperson Y. Taylor - Member ~. Wood - Member APPF2~RING FOR A. Ryder THE GRIEVORt Counsel Gowling & Henderson Barristers & Solicitors APPEARING FO~ L. Oudyk THE KHPLOYER: Staff Relations Officer Ninistry of Correctional Services BEARING= March 16, 1989 DECISION In this Grievance dated October 17, 1988 the Grievor states: "I Grieve competition CI-3544-88 under article 4.2 of the collective agreement". Counsel for the Employer raised a preliminary objection to the Board's jurisdiction to hear this Grievance~ on two grounds. First, that the management action challenged is an exercise of a clear management right under Section 18 (1) of the Crown Employees C. ollective BarGainin~ Act. Second, that the grievance is not arbitrable as an individual grievance because the grievor was not directly affected by the impugned management action. The parties agreed at the outset that the Board should first determine the preliminary issue and further that for that purpose only, the Board should accept the facts allegedby the union as established. Accordingly, no evidence was heard for the purpose of this preliminary determination. The grievor is employed as a Correctional Officer 2 at the Millhrook Correctional Centre. He lives at 3 Bobcaygeon, Ontario. His residenc, Lindsay jail than to Millbrook. As a . to transfer to the Lind~ay jail and with that . made inquiries from management at the Lindsay jail. was advised to apply into competitions at the Lindsay jail. A posting occurred on September 15, 1988 at the hindsay jail for a CO 2 position. The grievor was very intereste~ in applying, but did not do so because the posting restricted the area of search "to classified and unclassified staff of the Ministry of Correctional Services at Lindsay jail" The grievor claims that the limitation placed on the area of search is in contravention of the collective agreement. Counsel for the grievor admits that the Board has held previously ~that the right to restrict the area of search in a job competition flows from the management rights in section 18(1) of the Crown EmPloyees Collection Baraaininq Act. and that court challenges to these decisions were unsuccessful. Nevertheless, he submits that the management right recognized by the Board and the Courts is not an unrestricted right, and that the Employer is obligated to accommodate other rights recognized by the collective agreement when exercising 4 the management rights. He submits that management must be able to justify in each case the exercise of its management rights, where the management's actions run counter to employee rights under the collective agreement. It is the union's position that the Employer, by shutting out the grievor, who is a bargaining employee within the classified service, has denied him the rights under article 4 to compete for job postings. In addition, counsel points out that the Employer has invited bargaining unit employees in the unclassified service to apply for the job posting, even though article 4 is not applicable to unclassified employees. He points out that promotions and transfers are bargainable under Section 7 of the Act and that by exercising its management rights as it did, the Employer has viola'ted article 4. Article 4 of the collective agreement reads as follows: 4.1 When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at least ten (10) 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 5 will be acknowledged, where practicable, notice of vacancies shall be posted on bulletin boards. 4.2 The notice of vacancy shall state, where applicable, the nature and title of position, salary qualifications required, the hours-of- work schedule as set out in Article 7 (Hours of Work), and the area in which the position exists. 4.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. 4.4 An applicant who is invited to attend an interview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend the interview, provided that the time off does not unduly interfere with operating requirements. 4.5 Relocation expenses shall be paid in accordance with the provisions of the Employer's policy. On a review of the Board decision in Crimps, 660/86 (Verity) we see no significant distinction in the facts. The grievor who was not within the area of search designated by the Employer made the following argument (p.7): The Employer's policy and practice in placing geographical limitations on the area of search for competitions is contrary to Article 4. Alternatively, it is unreasonable and inconsistent with a proper administration of that Article. 6 The Board set out the Employer's position at p. 7 as follows: As indicated previously, the thrust of the Employer's submission was that there was nothing in Article 4 of the Collective Agreement to restrict man~gement's right to limit Geographically the area of search. Ms. McIntosh argued that it was the exercise of a "pure" management right under s. 18(1) (a) of the Crown Employees Collective Bargaininq Act under which the Board was without jurisdiction to review. The Board then referred to a previous decision, Lavicne, 561/81(Delisle) which had held that the Employer has an unrestricted right to select the area of search in the absence of provisions in the collective agreement to the contrary and noted that an application for judicial review of that decision was dismissed by the court. The Board concluded: The novel issue said to arise in this case is the standard or scope of review of a management right conferred by statute. Restricting the area of search geographically in a competition is the type of management activity which the Ontario Divisional Court appears to' agree is within the exclusive function of the Employer as provided in s. 18(1) of the Crown Employees Collective Bar~ainin~ Act. S. 18 of the Act makes it clear that those matters within the exclusive function of the Employer shall not be the subject of Collective Bargaining and in particular, "nor come within the jurisdiction of a board". Accordingly, it would, be unreasonable and indeed improper, we think, for a Board to hinder or in any way interfere with management rights in those areas of exclusive jurisdiction. For the above reasons, this grievance must be dismissed. 7 An application for judicial review of the Board decision in Cri~Ds was also unsuccessful. Since this Board and the courts have recognized that the right to restrict the area of search is an exclusive function of management under section 18(1), it necessarily follows that a!~ bargaining unit employees cannot~have a right to compete for an available vacancy, as the union claims. In our view, this case is not distinguishable from the one dealt with in Crimms. In view of the Board's disposition of the issue with the court's subsequent approval, we see nothing in the submissions of Counsel for the Grievor which causes us to reach a different conclusion. Accordingly, we find that the designation of an area of search is a management right flowing from section 18(1) of the Act. The grievor has been unable to point to anything in the collective agreement that fetters the exercise of that right. Therefore, the Board is without jurisdiction to deal with the merits of this grievance and the same is hereby dismissed. Dated this 8th day of June, 1989 at Hamilton, Ontario Nimal V. Bissan~yake Vice-Chairperson Member