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HomeMy WebLinkAbout1989-0902.Watkin.90-01-24/ ~* . ONTARIO EMPL O Y/~S DE LA COURONNE f"~ CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE C,OMMISSION DE SErFLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDA,.~ STREET WEST, TORONTO, ONTARIO. M5G 1Z8- SUITE2100 TELEPHONE/TIlLS'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8- BUREAU2100 (416)598-0688 902/89 IN THE 14~TTER OF ~N ~tBITI~TION Under THE CRO~N EHPLOYEE8 COLLECTIVE B~G~INZNG ~CT Before THE GRIEVANCE SETTLENENT Between: OPSEU (Watkin) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer Befores J.W. Samuels Vice-Chairperson L. Robbins Member G. Milley Member For the Grievor: R. Wells Counsel Gowling, Strathy & Henderson Barristers & solicitors For the Employer: S. Shamie Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Third Part¥: P. Brochu Hearingz December 21, 1989 ~'aE~,TmNA~V U~C~STO~ 2 This award deals with several preliminary matters which arose when our hearing commenced. In February 1989, the grievor, who has worked in the Ministry for some time, applied for a posted position of Economic Consultant,. with the classification Economist 4. This was at least the fourth time he had applied for such a posted position. On at least three earlier occasions, there appears to have been no one who was finally appointed. This time, there were two positions available. Mr. Watkin applied and was interviewed. He scored highest, based on the resumes and interview answers, achieving 81 1/2 out of 100. But two more senior applicants were successful--Mr. P. Bro~hu, who scored 80; and a Ms. Ong, who scored 75. The grievor says that he was the best candidate and therefore should have been given one of the positions. As well, he claims that there were a number of flaws in the competition process. At the outset of our hearing, the Ministry raised a preliminary objection. It was argued that this grievance is now moot because, subsequent to the competition in issue here, the grievor applied for another position of Economic Consultant, classified as Economist 4, and was successful. This position is in another section of the same branch as the position in issue here. The grievor moved into his new position in November 1989. Therefore, he now has a position as an Economic Consultant, and has the salary of an Economist 4. Furthermore, the Ministry is willing to pay him the difference in salary he would have earned had he achieved the Economist 4 classification as a result of the competition in February. The parties are agreed that this sum is $522.06, but the grievor has refused to take the money in settlement of his claim. However, it is argued that, once the grievor is paid the retroactive compensation, he would have arrived at the situation he claims in his grievance, and the grievance is moot. 3 The Ministry is concerned about the anxiety which would be caused if this grievance proceeded--it would involve nothing but "mud-slinging and finger-pointing" and suggests that this problem should be avoided if there is no useful purpose to be served by proceeding. Furthermore, the Ministry is concerned that, if the grievor is given one of the positions posted in February, this will upset the results of the competition later in the year which resulted in the grievor"s move to Economist 4. We were referred to Humeniuk and Meyer, 449 and 450/89 (Kirkwood), where the grievors sought reimbursement for certain meals. Before the hearing commenced, the Ministry issued cheques to the grievor to cover the meals, but the Union was not prepared to accept the cheques without an acknowledgment that the monies were paid for the meals in accordance with the collective agreement. At the hearing, the Ministry acknowledged that the cheques were for the meals claimed in the grievances, and that the Ministry was making the payment because the conditions for reimbursement had not been fully explained to the grievors by the Ministry and the grievors had incurred the meal expenses with the reasonable expectation that they would be reimbursed. The grievances did not seek a declaration that any particular provision of the collective agreement had been violated. Rather, the grievances simply claimed payment for the meals, and this was nOw done. The Board decided, therefore, that the matters had been settled and dismissed the grievances. However, in our view, the grievor here has raised a ~ difference which must be heard and determined. He wants the position in issue, not just the money for the interim period before he too became an Economist 4. The grievor is "not unhappy" (the grievor's words) in his present position, but he would prefer to do the work of the positions which were opened for competition in February 1989. He is not just seeking money, nor a declaration, nor a re-run of the competition--he wants this Board to put him in one of the posted positions, and we have the authority to do that. 4 The Ministry's offer of the money is not a satisfactory answer to the grievance, therefore we must proceed to hear and determine the grievance put before us. As this Board said in Loney, 590/83 (Samuels), "Once the grievance procedure is commenced there is no final conclusion until the parties agree to a settlement, or the matter is decided by a Board of Arbitration" (at page 3). And there was another preliminary matter which arose at the commencement of our hearing. As we have said, there were two posted positions, ukimately filled by Brochu and Ong. But only Brochu appeared at our hearing. Ms. Ong had not even been given notice of the hearing. Apparently, Ms. Ong had filed a grievance relating to some other posting, and this grievance was settled. The terms of this settlement were not put in evidence before us. However, we were told that, arising out of this settlement, the grievor does not challenge her right to the position she is in after the February 1989 posting. Counsel for the grievor would not say whether Ms. Ong is in the position as a result of the competition or as a result of the settlement, but no one is challenging her right to the position. Therefore, the grievor was only targeting Mr. Brochu. In our view, this cannot be. The grievor is challenging the job competition itself. Suppose that we were to find that the three leading applicants were, in their order of merit--Watkin, Brochu, Ong. How could we say that Brochu should be displaced rather than Ong? Or suppose that we were to find that Watkin and Brochu were relatively equal, in which case Brochu should get the position because of his greater seniority, but that Watkin did have greater merit than Ong? Perhaps the settlement made between the parties concerning Ms. Ong's grievance will have a bearing on Ms. Ong's situation in our case, but on the face of the matter before us, surely Ong has a distinct interest in our proceedings and ought 5 to have been given proper notice of our hearing and her right to be present, to make representations, and to have counsel of her own. We cannot proceed until this has been done. For these reasons, we adjourned our work on December 21, and we will continue our hearing on April 18 and May 1. In the meantime, we expect that one or both parties will give proper notification to Ms. Ong. Finally, we ought to memion two other minor preliminary matters. 6 In his grievance, the grievor claimed that the Ministry withheld the decision with respect to the competition for a long period of time without proper cause, and that, by denying him the job, the Ministry violated a verbal undertaking made in the summer of 1987. At our hearing, the grievor's counsel told us that these two points were no longer being pursued. Done at London, Omario, this 24th day of January , 1990. ~arnue s, Vice-Chairperson L. Robbins, Member G. Milley, Member