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HomeMy WebLinkAbout1989-0582.Carson & French.90-08-07 ONTARIO EMPL 0 YEs DE ~A COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z. 8- SUITE 2100 TELEPHONE/T~cL~'PHONE 180, RUE DUNDAS QUEST, TORONTO, [ONTARIO) MSG I Z$ - ~UREAU 2'IO0 (416) 598-06,88 582/89 IN THE MATTER OF AN AiRBITi~ATION Under THE CROWN EMPLOYEES COLLECTIVE Bi--GAINING ACT Before THE GRIEVANCE SETTLEMENT BOA_RD BETWEEN OPSEU (CARSON/FRENCH) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer - and - B. Kirkwood Vice-Chairperson ....... ~ E. Seymour Member !]i!~{!"~ D. Clark Member -~ FOR THE A. Hudgins GRIEVOR Counsel Cornish Roland Barristers & Solicitors FOR THE P..Thorup EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING: April 18, 1990 Page 2 DECISION The parties presented an Agreed Statement of Facts and Issues as follows: 1. In or about June of 1989, the Employer posted a notice of vacancy and a competition dated June 9, 1989 for four positions as Correctional Officer II at the Quinte Detention Centre. The competition closing dated was in or - about June 20, 1989. The competition number was C!-3533-89. 2. The notice contained a provision restricting the area of search for the competi5ion to classified and unclassified staff then employed at the Quinte Detention Centre in Napanee, Ontario. 3. The Grievors at the time were employed as Correctional Officers II at the Whitby Jail. 4. The Grievors currently live in Oshawa, and did so at all times material to t~e'grievance. 5. The Grievors applied for the positions in question. 6. Mr. Meyer, the Superintendent of the Quinte Detention Centre, acknowledged the Grievors' application in te'tters dated June 21, 1989 and advised the Grievors that ~he competition was. restricted to individuals currently employed within the Quinte Detention CenSre and that their applications would not be given further consideration because they were not within the defined area of search. 7. The Grievors were not given interviews. 8. The Grievors, Carson and French, filed separate grievances dated July 4, 1989, and July t, 1989, respectively, attached as Schedule "A", alleging they had been unjustly denied the right to apply for the position of Correctional. Officer II at Quinte Detention Centre and requesting placement in that position. 9. The policy of the Ministry of Correctional Services regarding area of search is attached as Schedule "B". Other Ministries restrict the area of search in a similar or identical fashion. 10. The Grievor, Carson, has approximately five years experience in the classified service as a Correctional Officer II at Whitby Jail. 1i. The Grievor, FrenCh, has approximately two years experience in the classified service as a Correctional Officer II at Whitby Jail. 12. It is further agreed by the parties that before proceeding to the merits of the case, the Grievance Settlement Board should decide certain preliminary issues as follows: Has the issue raised in these grievances been decided by ~he Grievance Settlement Board such that the grievances ought to be dismissed? Alternatively or in addition, does the Grievance Settlement Board have jurisdiction to review the Ministry's decision to limit the area of search in Competition No. Ci-3533-89 to applicants already working at the Quinte Detention Centre? If so, what is the appropriate standard of review? 13. If the Employer is successful in i%s preliminary objection, the grievance must be dismissed.. If the Union is successful on the preliminary objection, it will be seeking a further hearing date to' deal with the merits of the case. Should that occur, the subpoena issued to Gary Meyer shall bind him for any future hearing date(s), unless released on agreement of the parties or by leave of the Grievance Settlement Board. The position was posted as follows: STAFFING PURPOSE: - To attract sufficient numbers of eligible ~. and qualified candidates for a vacancy. POLICY/ PROCEDURE - The Ajea of Search for Bargaining Unit and Management ~ecrui~ment up to add including The manager, in consultation with the regional person~i administrator, will decide on the area of search based on his/her knowledge of available resources and the guidelines contained in Sect:ion 5, Ontario Manual of Administration, Volume II. Page 4 Provided that due consideration is given to these guidelines and to the requirements to identify a5 least three candidates, a mana.ger can select from the following geographical areas of search: - local - restricted to employees working in as specific institution or office - employees residing within 40 km of work location - regional or ministry-wide - OPS-wide In addition to defining the geographical area of.search, a competition may be designated as falling within one cf the following three categories: - 'Open' - such a competition is 'open' to all members of the general public. As such, all applications should be entertained. However, postings of the competition notice may be re.stricted. ' - Restricted to classified employees. - Restricted to unclassified and classified employees of the Ministry of Correctional .. Services. Although the notice of application was open to all classified and unclassified staff at the Quinte Detention Centre, there were no classified staff employed at the Centre at the time of the posting and the Ministry filled the position from the pool of unclassified staff. The successful candidates were in attendance at the hearing and had the opportunity to participate. The preliminary issue before this Board is whether the Board has jurisdiction to consider the grievance, as raised in paragraph 12 of the Agreed Statement of Fact and Issue. '~-c.. "' Page5 The Ministry bases its preliminary objection on the application of the concept of issue estoppel. The Ministry's counsel submitted that as a result of the ~J~algamated T~an~i% Union (E. Bla~eo et al.} and Toron%o Are~ ~ransit Operating Authority 1276/87 (Shime) decision, the principles of issue estoppel are applicable to the Grievance Settlement Board. The Ministry's counsel submitted that the issue whether a Board could review and limit the management's area of search has already been considered and decided by other .:.- panels of the Grievance Settlement Board in the OPSEU (Robert ..-. Hayford/ and ~j~j stry of CorrectioBal Services G.S.B. %1119/88 (Dissanayke) case, the OPSEU {T.. Cripps1 and Ministry of Correctional Services G.S.B. g660/86 (Verity) case, and the OPSEU (C~ Cal/cchia} and Ministry of TraDsport~%~on ~d Communications G.S.B. %302/85, 602/85 {Roberts) case, which followed the OPSEU (Yvon Lavign~ and Min]stry of Trans~ortat~o~ ~nd Communications G.S.B. ~561/81 (Delisle) case and held in the Ministry's favour. The Union's counsel submitted that the previous cases cannot be relied upon as there were a number of fundamental errors in the cases, which create exceptional circumstances, which then provides a basis for the Board to depart from the earlier decisions. She further submitted that a collective agreement must be interpreted according to %he principles of contract law, and therefore it must be negotiated in good faith. The Ministry cannot undermine the collective agreement by exercising its rights in bad faith to the detriment of the Union and its employees. The Union's counsel submitted that the cases which denied review on the basis of bad faith were fundamentally flawed. " Page 6 While the Union's counsel conceded that the ~ayfDrd (supra) decision dealt with the same parties and the same issues, she submitted that the Hayford (supra) decision was not decisive of the issue as it did not consider 5he right to review management's actions if the actions were based on bad faith. She submitted that a review"'on the basis of an allegation of bad faith was still available. The Union's counsel submitted that the Ministry acted in bad faith and undermined Article 4 of the collective agreement by pre-determining the candidates by defining the area of search. She alleged that limiting the search on the basis of business efficiency was not applicable when the Ministry gerrymanders the area to establish a pre'determined result. The Ministry .argued that it is common pr.actice for management to limit the area of search as a measure of efficiency. It considers the job position on a need basis and determines the area that would provide a number of candidates with the breadth of experience necessary for the job. The Uniqueness of the position determines the scope of the area of search. :i The Ministry submitted that it is common that in many facilities there are unclassified staff members who hope to move into classified positions, and competitions such as these, offer them the opportunity to do so, provided that they are qualified to do so. The first question which is raised in the Agreed Statement of Fact and Issue arises as a consequence of the Blake (supra) decision in which the Board held that the Grievance Settlement Board acts as one board and does not act as different panels. Mr. Shime, held, on behalf of the Page ? Board, that the various panels of the Grievance Settlement Board are bound by prior decisions of the Grievance Settlement Board, unless there are exceptional circumstances which warrant a departure from the earlier decisions. The concepts set forth in the Blake (supra) decision have been reviewed by the Divisional Court in the unreported decision of Her MajeSty ~h~ Queen in Eight of Ontario a~ R~esented by the Ministry of Correctional Services and Ontario Public E~plQy'ee'~ U~iQn (Daniel Dupuis) and the Gri~eVance Sett%ement Board, Reid J. May 9, 1990. Mr. Justice Reid found that the decision in Blake when reviewed in its entirety rested on the acceptance of ~he principle that the earlier decisions must be relied upon unless they are manifestly wrong. In obiter dicta, the Divisional Court expressed a concern about the application of the test of "exceptional circumstances", but did not find th'at it was manifestly wrong. Therefore, although the role of the Divisional Court in judicial review is to determine if the interpretation of the Board is patently reasonable or not, and is not to confirm the decision of the Board, the reasonableness of the Dlake decision has been upheld and the test set out in the D~ decision is still applicable. Therefore, we must consider if there are 'other decisions which decide the same issue as before this board, and' if so, we must follow the principles 'previously established unless the earlier decisions are manifestly wrong or unless there are exceptional Circumstances which provide a basis for not following the earlier decisions. The issue which is the'basis of the grievance is whether the Board has the jurisdiction to review management's decision to limit the area of search in a job competition. Page 8 This issue has been- considered by the Grievance Settlement board on many occasions. It involves the consideration of article 18 (1) of the Crown Enlp!oyees' Collective RargD~sin~ Act R.S.O. 1980, c.108 as amended, and articles 4.03 of the collective agreement. It also involves article 4.5 of the collective agreement which has been added since the l.avigne (supra) decision. Section 18(1) of the Crown r.~loyees' Col!ectj.va Dargaini~g Act states: 18.--(1) Every collective agreement shall be deemed to provide that it is the excl'usive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the .right to determine, (a)emptoyment,appointment, complement, organization,assignment,discipline, dismis sal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit systems, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such .matters will not be the subject of collective bargaining nor come within the jurisdiction of a board. Article 4.03 of the cotlectiv~ agreement states: 4.03 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. Article 4.5 of the collective agreement states: I ' -,- Page 9 4.5 Relocation expenses shall, be paid in accordance with the provisions of the Employer's policy. The l.av4, gne (supra) case is the first decision that considered this issue. It dealt with section 18(1) of the Crown Employee's Collective Bargai~4ng Ac~, and article 4.03 of the collective agreement. The Union claimed that the right of the Ministry to limit a job search to a geographical area was in contravention of Article 4.03 of the Cdllective Agreement. The Ministry however, maintained that management had an unrestricted right to select the area of search and relied further on the staffing policy noted in the Ministry's Personnel Policy and Procedure Manual. The Board held that management had the unrestricted right to select the area of search in the absence of other provisions in the collective agreement to the contrary. Article 4.3 was not found to be a restriction on management rights. Professor Delisle recognized the Ministry's responsibility to take business efficiencies into account when managing public funds. Professor Delisle stated at page 6 · We are satisfied here that the employer, given the task of managing public funds, promotes business efficiency by limiting the '-' area of search and we see nothing in the Collective Agreement that in 'any way limits that right. Counsel for the grievor suggested that the ability in the employer to limit the search held the seeds for possibility of abuse in that the employer might, prior to posting, regard those who are eligible and then limit the area of search to insure awarding the job to its preselected candidate. The short answer to that possibility resides in the thought that then the employer would be subject then to attack on the grounds of bad faith; In this case no allegation'of bad faith was made nor evidence of the same led. We are confirmed in our view of the unrestricted right in management to select the area of search in absence of provisions in the collective agreement to the contrary by the Page 10 presence in the collective agreement in Article 24 -' Job Security~ limitations on the assignation of employees designated as surplus to vacancies within a set geographical area. The grievor also relied on the decision of re Canadian P~c~f~¢ [,im~ted, 19 L.A.C. (2nd) 202 (Schiff), 1978, for the proposition that geographical limitation on the applicants candidacy was discriminatory. We are satisfied however that the result in that awa'rd was dictated by the particular provisions of the Collective Agreement. They are under review and accordingly, has no application to the instant grievance. This decision was judicially reviewed by the Divisional Court and was upheld. The Union's counsel submitted that it would be wrong for the Board to rely on the Lavjg~e (supra) decision as the Board in the L~v. igne case did not consider the decision of 'Re Canadian Pacific t,imit%d 19 L.A.C. (2d) 202 (Sqhiff) . In the gADadian Pacific 7,imited (supra) case, Professor Schiff found that as the collective agreement included a clause providing relocation expenses that the grievor was being discriminated against, by being excluded from the competition, by the t6cation of his residence. She submitted that the language in the Cana~ian.P~cific I~imited (supra) case which provided for location expenses was similar to the.language in article 4.5, which has since been included in the collective agreement between the parties to this grievance, and submitted that therefore, the Board ought to consider follow the Canadian.Pacific I,imited (supra) case. Although a similar provision was considered in the Canad]~D Pacific 1,4m4ted (supra) case;, in the Cripps (supra) decision, the Grievance Settlement Board considered the same issue as between these parties, article 4 which included article 4.5 as presently drafted, and the decision of the Divisional Court in l,avigne (supra). It held that the right Page 11 to limit the area geographically arises from management rights in s. 18(1) of 5he Crown Employees' Collective Bargaining Act, and" no provision in article 4 limited managemen~'s rights to determine the area of search at page !0 of the decision, Arbitrator Verity stated: The novel is'sue said to arise in .this case is the standard or scope of review of the management right conferred by statute. Res%ricting 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 section 18 (1) of the Crown Employees' Collective Bargaining Act. Section 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. The Divisional Court upheld the Board's decision. We are not persuaded that there was a manifest error in the Cripps (suprA) decision· Article 4.5 merely works in conjunction with management rights in article 18.01. Management has the right to manage its business, which includes establishing the criteria for the competition. As in the I.avigne (supra) decision, the area of search is not a qualification and subject to this Board's review under article 4.3 of the collective .agreement. If a person is chosen and is eligible for relocation expenses pursuant to article 4.5 of the col~ective agreement, that applicant will receive the relocation expenses. Pagcl2 To suggest tha~ the presence of relocation expenses creates an entitlement to anyone to apply for the job no matter where that person lives, would create an undefinable area of search and there would be no limits on the expenses that may be incurred. It would contrary to the inherent responsibility of the Ministry to take business efficiencies and expenses into account when handling public funds. Nor can we accept Union's counsel submission that we could not rely on the Crigps (supra) decision as the ~anadian Pacific l, imited (supra) case had no% been brought to the Board's attention. Firstly, we cannot determine by the decision whether the decisions were considered. Secondly, even if it had, in light of the Blake (supra) decision, when there is a prior decision of the Grievance Settlement Board on the interpretation of the same article of the collective agreement between the same parties, as before the present panel, the 'decision of the earlier panel of the Grievance Settlement Board must be applied. The decision of an outside panel may only be of assistance as a guideline indicating one interpretation' by an arbitration board on a similar situation. It does not set a precedent for the'Grievance Settlement Board. We also cannot accept the Union's Submission that we cannot rely on the Cr~9ps (supra) decision as the Board had not referred to the ~l]~chia and Da Costa decisions. She had submitted that by not referring to the decisions,' the Board did not say that they should not be followed. We do not find tha~ even if the Ealicchia and Da CQSta decisions were considered that it would advance the Union's case. The Ca] icchla (supra) case supports the principles held in the Lavigne (supra) case, but on the Page 13 facts, the Board did not find that there was any bad faith on the part of the Ministry or ~hat the Ministry gerrymandered the area of search to predetermine candidates and therefore the right to review the decision on ~he basis of bad faith was not reviewed. No allegation of bad faith ~was raised in the qrievance nor was it even raised in the opening statement of the 'Union. It arose only as a result of the quaere for clarification raised by the Board The Union's counsel argued that the allegation of bad faith was included in the reference in the grievance form, that the grievor was "unjustly" denied the opportunity to apply for the position. We find to Che contrary, "unjust" is not broad enough to ihclude bad faith. An allegation of bad faith is a serious allegation and goes to the Tvery basis and veracity .of 'an agreement be%ween the parties and to the modus operandi of the parties. If bad faith is found, it can void the transaction or agreement. Unjustly, however, does not mean that the transaction is void, but that it is "unfair", which at most, may find that the transaction i's voidable. · Whenever a party becomes aware that there are facts that support an allegation of bad faith, that party must present that position to the other side as soon as possible upon. becoming aware of the facts in order that the other party can meet the issue. Although there .are no pleadings, as there is in civil litigation, the grievance form presents the. foundation of the case tO be met. Furthermore the purpose of the grievance procedure is to discuss %he various positions .to maximize the chance for settlement. If a party has facts which suggest that the actions may be void, it cannot sit and attempt to surprise the other side once the . other party has put in its case, as it did in this case. Page 14 _ Such an allegation cannot be used frivolously nor as a basis for a fishing expedition into the process which the Ministry followed. In addition, if there is an allega%io~ made of bad faith, that allegation must be supported by facts. Although · 'no viva voce evidence was heard at the hearing, if the union were seriou~i~'pursuing thf~.aliegation a statement of the evidence upon which the union was relying should have been brought to the Board's attention at the commencement of the hearing. This is not the situation'wher~ facts come to light in the course of the hearing and one party is given an adjournment in order to meet a key issue. If the Union .had thought that the procedure which the Ministry had followed was improper, it could have raised the issue by means of a policy grievance when the job was posted. Therefore, in summary, we find that the Grievance Settlement Board and the Divisional Court have considered the issue that is before this Board and has found that the Ministry has an unrestricted right to limit the area of search for a job.competition. When considering the cases preceding t~is decision, the submissions of counsel and the Agreed Statement of Fact and Issue, we find that there are no contradictions in the earlier cases, nor do we find that there are exceptional circumstances, nor even any manifest errors in the preceding cases which would persuade us that these cases' were not appliCable. Accordingly, we find that the designation of an area of search for a job competition is a management right flowing from Section 18(1) of the Act. .The grievor has been Page 15 unable to point to 'anythinq in the Collective Agreement that fetters the exercise of that right, other than article 4,5, which as we have stated, does not restrict the Ministry's rights. We do not find that ~here is any suggestion of any facts that would lead the Board to concluded that a possibility of bad faith occurred. Therefore, the Board is withoUt jurisdiction to deal with the merits of this grievance and the same is hereby dismissed. Dated at Toronto, this 7th day of August 1990. B.~. K~'~rkwoo~,' Vicecha~rperson E. Seymour, Union Member D. Clark, Employer Member