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HomeMy WebLinkAbout1989-0314.Branch.91-09-20 · f{'".'""'~ ONTARIO EMPLOY~-$ DE LA COURONNE CROWN EMPL ~)YEE$ DE L'ONTARfO GRIEVANCE C,OMMISSION DE ,. SETTLEMENT REGLEMENT BOARD DES GRIEFS I 180 DUNDAS STREET WEST, SUtTE,~?O0, TORONTO, ONTAR~. MSO [Z8 TELEPHONE/TEL~PHOr~E: (416)3`26- [80, RUE D~JNDAS OUEST, BUREAU ~,r~o, TORONTC" (ONTAR/O,~. MSG 1Z8 fiACS~'MILE/T~'LECOP.~E : (4 ~6,~ 3.26-~396 314/89 ZN ~ I~TTER OF ~ ~.B'rTI~TION Un~e~ T~E C~O~ ~P~E8 COL~~ B~GAINING ~CT Be~o~e T~ GRI~CE 8ETT~~ BO~ BE~N OPSEU (Branch) Grievor - a~ - The Cro~ in Right of Ontario (Minist~ of Transpo~ation) ~mplo~er BEPOR~ = M. Gorsky Vice-Chai~erson M. Vorster Me. er. H. Roberts Me~er FOR THE P. Chapman GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J. Gallagher · MPLOYER Counsel Staff Relations Officer Ministry of Transportation HEARING August 15, 1991 DECISION The Grievor, Ian Brandh, filed a grievance on April 12, 1989 requesting that he be awarded the position of Control Operator AB at Calabogie Patrol, which was posted pursuant to art. 4 of the collective agreement in competition ~9-89-06. The Grievor, at the time of the posting, had been appointed as a seasonal employee as defined in art. 3.17 of the collective agreement. The position of the Employer was that the Grievor, as a seasonal and unclassified employee, could not rely on the provisions contained in art. 4, which deals with "posting and filling of vacancies or new positions." Although counsel for the Union was not urging us to accept a proposition that the Grievor, if properly appointed to the unclassified service, had the right to grieve an alleged violation of art. 4, she did argue that: (1) The Grievor had been improperly appointed to the unclassified service and that we should so find. Counsel for the Union acknowledged that evidence would have to be tendered to establish this position. (2) The Board could fashion a remedy for the Grieuor even if he was not a member of the classified service at the time of the posting, provided it could be established that he had been improperly appointed to the unclassified service. Counsel for the Union asked that we first rule on the argument with respect to (2), above, and hear full argument with respect to (1), above, only after we had issued an interim award with respect (2). 2 In the interim dec~sion dated February 28, 1990, the Board decided that: only after hearing ... additional evidence on the question of whether the grievor was improperly appointed to the unclassified service, as well as argument on that issue, will we be in a position to decide the issue of the, relief available to the grievor, should there be a finding in his favour. If the grievor succeeds, to the extent that we decide that he was improperly appointed to the unclassified service, then we will have to rule on the argument already presented to us as to the nature of the additional relief, ~if any, which the grievor wil~ be entitled to. On the basis of the interim decision, the Board requested the Registrar to reconvene the hearing. When the hearing was reconvened we were requested by counsel for the parties to grant a recess in order that certain documents which were not previously available Could be reviewed by counsel for the Union. When the hearing resumed following the'recess, counsel for the Union reviewed her position with us that she did not take issue with the general proposition that art. 4 could not be relied upon by a person properly appointed to the unclassified ser¥ice and that the position of the Union was as above stated. The position of the Union during the hearing of the preliminary matter was that we find that the Grievor had been improperly appointed to the unclassified service and if we so found, then a remedy was available to the Grievor~which would enable the Board to scrutinize the job competition or to fashion some other remedy ¥ 3 in order that relief could be afforded to the Grievor. The Board did not rule one way or the other as to the remedy that might be available to the Grievor should he be successful in establishing that he had been improperly appointed to the unclassified service. Rather, the Board concluded that it would be inappropriate for it to rule on this question of remedy before deciding the issue of whether there had been an improper appointment of the Grievor as an unclassified employee. Counsel for the Union advised us, upon examining the doc. uments produced by the Employer, some of which were only received on the morning of the reconvened hearing, that she had concluded that it was now not possible for the Union to establish a case that the Grievor had been improperly appointed to the unclassified service. As a result of this concession, as was indicated in the earlier decision of February 28, 1990: "... a finding that the Grievor had been properly appointed to the unclassified service would 'require an immediate holding that the grievance was not arbitrable .... " As noted above, this decision does not affect the second issue which we do not now have to deal with: if the Board had concluded that the Grievor had been improperly appointed to the unclassified service, did it have the jurisdiction to fashion a remedy for the Grievor if he was not a member of the classified, service at ~the time of the posting? In the interim decision, the Board noted that if the Grievor 4 'succeeded on the first issue, we would then have to rule on the argument already presented to us as to the nature of the additional relief, if any, which the Grievor would be entitled to. In the ci~cumstances, such a decision will have to await the presentation of a case where suck a ruling is appropriate. Dated at Toronto, Ontario this 20th day of September, 1991. 'M. R. Gorsky - V~e Chairperson M. Vorster - Member H. ?oberts - Member