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HomeMy WebLinkAbout1989-0438.Rolfe.90-04-03 ONTARtO EMPLOY~-S DE I..A COURONNE CROWN EMPLOYEES DE t.'ONTARtO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE2100 TELEPHONE/T~'L~PHONE I$0, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8. BUREAU 2~O0 (416)598-0688 438/89, 444/89 445/89, 446/89, 447/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN= OPSEU (Rolfe) Grievor - and - The Crown i~ ~£ght o[ Ontario (Ministry of Correctional Services} Employer BEFORE: W. Low Vice-Chairperson F. Taylor Member D. Montrose Member FOR THE I. Roland GRIEVO~: Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE C. Kay-Aggio EMPLOYER: Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors HEARING: February 27, 1990 DECISION The Grievor, Roger Rolfe, is a Correctional Officer 2 at the Metropolitan Toronto West Detention Centre. The Grievor has five grievances before the Board today, all arising from competition No. C1-1024-89 for the position of OM14. All the grievances are dated April 10, 1989. The first grievance is that a probationary staff CO1 was permitted to enter the competition; the second grievance is that the competition was flawed in that management used personal suitability as one of the criteri'a in the selection process and relied on personal opinion; the third grievance is that the Ministry failed to proceed in accordance with the policy procedures and staffing standards relating to the C03 classification; the fourth grievance is that the appointment of C02 Holroyd was unfair; the fifth grievance is that the management of the Metro West Detention Centre treated the Grievor unfairly and in a biased manner. Mr. Rolfe commenced his employment with the Ministry in 1975, and from 1979 to 1989, he held a position as Correctional Officer 3. In 1989, that position was abolished and Mr. Rolfe, together with all 27 other CO3's was demoted to the position of Correctional Officer 2. The employer then created 21 positions designated as OM14. The job of the 0M14 is to perform the former C03 functions, together with certain additional functions. It is an 2 agreed fact that the new OM14 position is not a bargaining unit position. The employer held a competition No. C1-1024-89 to fill these 21 new management positions, and Mr. Rolfe entered the competition but without success. His grievances concern the manner in which the competition was conducted. There is an unusual circumstance in this matter in that Mr. Rolfe found himself in a position of having to compete for a non-bargaining unit position which entailed performing essentially the same functions that he kad performed as a Correctional officer 3 for the ten years before the position was abolished and he was demoted. Mr. Rolfe found he had to compete to regain the ~e f_~ status and job which he had held prior to this time. It was thus urged on us that if Mr. Rolfe, a bargaining unit employee, had to enter the competition just to be able to hold the ground he had occupied before, that the standards and criteria applicable in the holding of competitions for bargaining unit positions should apply. While we are sympathetic to Mr. Rolfe's position in the circumstances, we unanimously hold that Mr. Rolfe's grievances are not arbitrable by this Board, and must be dismissed. The employer has made a preliminary objection that the Board has no jurisdiction .to entertain the grievances. We were referred to the decisions of Arbitrator Jolliffe in Cunnin~ham, Arbitrator Teplitsky in u~ and Arbitrator Weatherill in Lansey, all of which held that a grievance as to the conduct of a competition for a non-bargaining unit position is not arbitrable by this Board. Article 4.01 of the Collective Agreement governs Articles 4.2 through 4.5. In short, the procedures set out at Article 4 apply only to a bargaining unit position or a new classified position created in the bargaining unit. As the OM 14 position was neither, we are of the view that the grievance is not arbitrable and must be dismissed. DATED at Toronto this 3rd day of April , 1990. WAILAN LOW . Iff~e-Chairperson F. ~AYLOR y" Member D. MONTROSE Me. er