HomeMy WebLinkAbout1989-1480.Union.90-03-25.~. Ot'iTARIO EMPL OY~ DE LA CO~RONNE
~,.~ CROWN EMPLOYEES DE L 'ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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'!480/89
1481/89
1482/89
TN THE MATTER OF AN ARBITRATION
Under
THE CROWN EI~PLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BO~I~D
BETWEEN
OPSEU (Union Grievance)
Grievor
The Crown in Right of Ontario
(Ministry of Natural Resources)
Employer
BEFORE: W. Kaplan Vice-Chairperson
J. Carruthers Member
F.' Collict Member
FOR THE A. Ryder
GRIEVOR Counsel
Ryder, Whitaker, Wright & Chapman
Barrister & Solicitors
FOR THE A. Rae
EMPLOYER Counsel
Winkler, Fili°n & Wakely
Barristers & Solicitors
HEARING[ August 27,1990
2
Introduction
This case concerns three grievances dated september 8, 1989. The
three grievances are as follows:
1. The Union grieves that the Ministry of Natural
Resources is continuing to violate the provisions of
Article 4 of the Collective Agreement in not.posting
vacancies in the Survey and Mapping Branch, 90 Sheppard
Avenue, East.
2. The Union grieves that the Ministry of Natural
Resources is continuing to violate the provisions of
.Article 4 of' the Collective Agreement in not posting
vacancies in the Communications Branch, Public Inquiry
Centre.
3. The union grieves that the Ministry.of Natural'
Resources is continuing to violate the provisions of
Article 4 of the Collective Agreement in not posting
vacancies in the Financial Resources Branch.
The remedy'sought in the case of 'each of these grievances i~
identical: "That the Ministry Of'Natural Resources comply with
the provisions of Article 4 of the Collective'Agreement and poSt
these positions 'forthwith."
The relevant portion of Article 4 of. the Collective Agreement is
as follows:
When a vacancy occurs· in the Classified Service for a
bargaining uni~ 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 will be
acknowledged. When practicable, notice of vacancies shall
be posted on bulletin boards.
Also relevant is Article 6.6.1 of the Collective Agreement:
Where an empkoyee is assigned temporarily to a position,
Article 4 (Posting and Filling of Vacancies or New
3
Positions) shall not apply except where:
(i) the term of a temporary assignment is
greater than six (6) months' duration, and
(ii) the specific dates of the term are
established at least two (2) months in advance
of the commencement of the temporary
assignment.
A hearing was convened in Toronto, at which time evidence was heard
with respect to a number of positions that the union alleged should
have been filled by posting according to the above-noted provision.
Introduced into evidence was a list of names of unclassified
personnel 'prepared by the Union. The union.submitted that the
persons on this list were performing ongoing positions within the
Ministry; that these positions should be filled under sections 6
and.7 of the Public Service Act and that, accordingly, they came
within the ambit of the procedure mandated in Article 4 of the
Collective Agreement. over the course of the hearing a number of
names were removed from the list. At the end of the day, the
following persons and their positions remained in dispute:
Dave Lyon - Survey and Mapping Branch (Legal Description
and Research officer)
Dave Deleon - Survey and Mapping Branch (Control Survey
Data Technician)
Neel Dutt - Communications Branch (Revenue Receiving and
Inventory Control Clerk)~
The Evidence
On the first day of hearing considerable evidence was heard from
several witnesses with respect to a number of the different
4
positions in dispute. On the second day of hearing an agreed
statement of fact was introduced with respect to the positions
occupied by Dave Lyon~ Dave'Deleon and Neel Dutt. The facts can
be summarized as follows:
Dave Lyon
Prior to July 20, 1988 the position~in~question, Legal Description
an~ Research officer, was filled by a permanent' classified
'~ employee, R.F. weatherbe. On July 20, 1988 Weatherbe resigned.
The position was posted government-wide and was also sent~ to the
membership of the Association of Ontario Land Surveyors. with a
closing date of August 12, 1988. Three applications were received.
One applicant Was out of the country at the time of the interview
and could not be reachedl One applicant was interviewed but
subsequently withdrew from the c~mpetiti°n, one applicant was
interviewed and offered the position but declined.
On November 11, 1988 the Ministry received--approval to seek
reclassification Of the position to a Legal Survey Examiner 4
classification. However, the position was not reclassified. In
the meantime, the Ministry continued to be unsuccessful in
attracting professional surveyors to apply for the position. On ·
May 11, 1989 approval was received to hire unclassified staff for
the position. On May 13, 1989 Mr Lyon was interviewed. On May
15, 1989 Mr Lyon ~as offered the p~ition and he accepted the
following day fo~ the period June 5, 1989 to June 4, 1990 for 36
1/4 hours per week. On June 5, 1989 Mr Lyon commenced work under
contract... At that 'time, Mr. Lyon signed a form signifying his
understanding that his appointment was a temporary one and "is not
to be considered as leading to continuous or regular'employment."
On March 12,~ 1990 a contract position of Legal Description and
Research officer was advertised with a closing date of April 6,
1990. No applications were received. On June 4, 1990 Mr Lyon's
contract is extended for another year. The Ministry, st the time
of the hearing of the grievance, was continuing to seek
reclassification of the position as outlined above.
Dave Deleon
The position occupied by Mr. Deleon is cOntrol Survey Data
Technologist. Prior to November 17, 1988 the position was occupied
'by A. Harrison for the period August 13, 1984 to September 8, 1985.
It was occupied by P. Heney from October 21, 1985 to August 12,
1988. On NoVember 17, 1988 the position was posted as a one-year
secondment position. Two persons applied for the position: Geoff
Morris and Dave Deleon. On December 22, 1988 Dave Deleon was
awarded the position to work 36 1/2 hours per week for the period
February 13, 1989 to .February 12, 1990. Mr. Morris then grieved·
that he should have been awarded the position, but later abandoned
his grievance. On February 5, 1990 Mr. Deleon's contract is
extended for another year. A·document prepared in connection with
this position indicates that it was a non-recurring project with
a completion date.of January 1992. Mr. Deleon signed·that part of
the document indicating that he understood that his appointment was
of a temporary nature.
Neel Dutt
The position occupied by Ms. Dutt~at'the time of the grievance did
not.exist prior to February 1989. In February the position of
Revenue and Inventory Control Clerk was created to computerize
sales and product inventory in the Public Information Centre. On
March 20, 1989 Ms. Dutt was appointed to the position for the
Period March· 20, 1989 to September 20,' 1989 at 36 1/2 hours per
week'. On October 2, 1989 Ms~ ~Dutt's contract was renewed for the
period October 3, 1989 to December 8, 1989 for 21.25 hours per
week. On January 15, 1990, Ms. Dutt'·s contract was renewed for
the per~iod January 15, 1990 to May 15, 1990 for 36 1/4 hours per
week. On May 16, 1990, Ms. Dutt's contract was renewed for the
period May 16, 1990 to November 4, 1990 for 36 1/4 hours per week.
Introduced into evidence were various ."Appointment to Group 1 or
2 Unclassified Staff" forms signed by Ms. Dutt indicating that she
was aware that his appointment was of a temporary nature.
Argument.
It is useful to set out the,provisions of the Public Service Act
referred to and relied on by counsel.
· 1. (a) "civil servant"'means a person appointed to the
service of the Crown by the Lieutenant Governor in
Council on ~he certificate of the Commission or by the
Commission, and "civil 'service" has a corresponding
meaning;
(b)~ "classified service" means the part of the
public service to which civil servants are appointed;
(g) "public servant" means a person appointed under
this Act to the service of the Crown by the Lieutenant
Governor in Council, by the Commission or by a minister,
and "public service" has a corresponding meaning;
(i) "unclassified service" means the part of the
public service that is composed of positions to which
persons are appointed by a minister under this Act.
6.-(1) When a vacancy exists in the classified service,
the deputy minister Jof the ministry in which the vacancy
exists shall nominate in writing from the list of
eligibles of the Commission a person to fill the vacancy.
(2) The Commission shall appoint a person nominated
under subsection (1) to a position on the probationary
staff of the classified service for not more th~n one
year at a time.
7. The CommiSsion shall, if requested in writing by
the deputy minister, recommend to the Lieutenant Governor
in Council the appointment of a person on the
probationary 'staff-of the classified service to the
regular staff of the classified service, and the
recommendation shall be accompanied by the certificate
of qualification and assignment of the Commission.
8.-(1) A Minister or any public servant whQ is designated
in writing for the purpose by him may appoint for a
period of not more than one year on the first appointment
and for any period on anZ subsequent appointment a person
to a position in the unclassified service in any Ministry
over which he presides.
(2) Any~ appointment made by a designee under
subsection (1) shall be.deemed to have been made by his
Minister.
9. A person who is appointed to a position in the
public service for a specified service ceases to be a
public servant at the expiration of that period.
A lengthy definition of "unclassified service" m~y be found in the
regulations, and i~ reproduced below.
Union Argument
Union counsel argued ·that the evidence established the existence.
of ongoing·permanent~positions with respec~ to Dave Lyon, Dave
Deleon and Neel Dutt, in counsel's view, if there is an ongoing
position it automatically falls within'the scope of the classified
service, and'accordingly must be filled by a~ posting.
In counsel's submission, the Public Service Act 'Creates two
categories of· public Servants, classified employees appointed
pursuant to section 6 and 7 of the Act, and unclassified-employees
appointed under, section 8.. These appointments, counsel argued,
presuppose the existence of two types of serVice: classified and
unclassified.
Union counsel argued that this Board, in its interpretation of·
sections 6, 7 and 8 of the Public S~rvice Act,· has defined the
classified public service as including all of th~.ongoing permanent
positions ~of the public service, while the unclassified public
service is for temporary positions, where, for example, a work
bubble exists'and additional staff are engaged.
· Very simply, in counsel's submission, if there is an ongoing
position it is a classified position. If a vacancy occurs, it must
be filled by a posting. ~ .~
9
The key decision on point is Beresford (Mitchnick) 1429/86, where
the Board took jurisdiction in order to determine whether or not
the appointment to the unclassified'service had been properly made.
In brief, the Board found that the appointment of an employee to
the unclassified civil service had been improperly made.
in Beresford the Board reviewed the statutory and regulatory
framework within which the classified and unclassified services
exist. In addition to considering the statutory provisions set
out above, it also considered Regulation 881 of the Public Service
Acct. This Regulation provides that:
6.-(1) The unclassified service consists of employees
who are employed under individual contracts in which the
terms of employment 'are set' out and is divided into,
(a) Group. 1, consisting of employees'.who are employed,
(i) on a project of a non-recurring kind.,
(ii) in a professional or other sPeCial
~capacity,-
(iii) on a temporary work assignment arranged
by the commission in accordance with its
program forproviding temporary help,
(iv) for fewer than fourteen hours per week or
fewer than nine full days in four consecutive
weeks or on an irregular or on-call basis,
(¥) during their regular'school, college or
university vacation period or under a co-
operative educational training program;
(b) Group 2, consisting of employees who are employed on
a project of a recurring kind,
(i). for ~ewer than twelve consecutive months
and for fewer than,
(Ai 36-1/4 hours per week where the
t0
position, if. filled .by a civil
servant, would be classified as a
position requiring 36-1/4 hours of
work..per week,
(B) 40 hours per week where the
position, if filled by a civil
servant, would .be classified as a
position requiring 40 hours of work
per week,
(ii) for fewer than eight consecutive weeks
per year where the contract of the employee
provides that the employee is to work either
· 36-1/4 hours per week or 40 hoUrs per week;
.(c) Group 3 consisting of employees appointed on a
seasonal basis for a period of at least eight consecutive
weeks but less than-twelve'consecut'ive months to an
annually recurring position where the contract provides
that the employee is to work either 36-1/4 hours per week
or 40 hours per week.
After reviewing the Statute and regulations, the Board decided that
the job being.done by the grievor in Beresford did not fit into any
of the categories recognized in Regulation 881, and found that the
power of the Minister to appoint to the unclassified service was
limited to those types of jobs referred to~in any one of.Gr0ups 1,
2, or 3. Moreover, the Board said "that, in order.to fall within
the contemplation of the Legislature. as to what constitutes a
'proper' appoin'tment on a limited term basis, there ~must be ,
something about the job in its initial conception 'which
distinguishes it from the normal 'permanent' position in the
classified service" (at 15). For these, reasons, the appointment
in question was accordingly determined to be "improper."
11
The issue was'also considered in the Mille¥ (1972/87) case, where
Vice-Chairperson Mitchnick said: "In simplified terms...the
~classified' staff are the regular or 'permanent' employees of the
government, and the ~unclassified' staff are the employees hired
on fixed-ter~ contracts. Those latter contracts, by their own
terms, 'self-destruct' on their expiry date..." (at 5).
Both the Beresford and Miller decisions were upheld by the
Divisional Court (Her Majesty the Oueen v. OPSEU) (unreported
December 6, 1988).
In union counsel's views, these decisions require the. Board to
consider the positions in dispute in the instant case and determine
whether or not they can be properly characterized as classified
or unclassified. If the position in question is an ongoing one,
then it is.a classified one and must be filled by posting.
Union counsel acknowledged that the Beresford decision did not go
any further than to declare that the appointment had been
improperly made. And counsel pointed out that subsequent to the
Beresford decision two related questions have come before the
Board: First, does the Board have the power, assuming it finds
the appointment to have been improperly made, to order the position
posted? And second, is the Board empowered to confer classified
status on an employee in situations of this kind? These questions
will be considere~ together.
12
In Wagner (Slone) 351/89 the union alleged that the position to
which the grievor'had been 9ppointed was not properly an
Unclassified position. Therefore, the union argued, the grievor
was not an'unclassified employee. Accordingly; the question was
asked, if the grievor was not.an unclassified employee what was
she?
The Board in WaGner said:
The Union relies on Beresford, but realizes that there
were limits to what' was decided in Beresf0rd. It
accordingly asks us to go the next step and declare that
the Grievor is to be considered a classified employee
with a right to grieve her dismissal and other rights
attaching to the classified status. It is urged that we _~
use our plenipotentiary powers to fashion a remedy for
the Grievor (at 8).
The Board in WaGner then went on to conside~ in 'some detail the
Beresford apprOach, and found that the position in question ~was
not one that ought to have been filled by appointment to the
unclassified service. "It does not fit nicely into any one of the'
categories created by section 6 of Regulation 881. The job has all
the attributes of a.permanent part-time position" (at 12). In the
result, the employer at some stage "ought to have concluded that
the job was not one to which an unclassified employee could
continue to be appointed. At some' point in time, it came under'an
obligation to post the position under the provisions of either
Article 4 or' Article 60 of the Collective Agreement" (at 13). The
Board then went on to consider the consequences that flowed from
that failure. The Board in Wagner observed that:
the jurisprudence makes it quite clear that ~our finding
of an improper appointment does not necessarily imply
any tangible success for the Grievor, Beresford stopped
dead at this point of the analysis, and sent the case
back to the parties ostensibly to attempt to settle the
question of remedy but in reality to· send it on 'an
excursion through the Divisional Court and the Court of·
Appeal. Both courts declined to interfere with what the~
Board had decided. Now the question of remedy must be
faced (at 14).
In facing this question the Board set out a number of remedial
principles and applied them to the facts of the Waqne~ case,
concluding that the remedial approach·"of this Board should be to
· order a party to do something that it ought to have done and is
permitted to do" (at 21). In the Wagner case the Board determined
that.the position should have been.filled by a posting and an
appointment to the classified service. Nevertheless, the Boar~
determined that it would be improper to order the ·employer to
classify the employee. However, it did require the employer, 'if
it decided to fill the position, which had since the time of the
grievance become vacant, to post it ~nd· to invite the grievor to
apply. The Board found that the grievor had no status other than
someone who was at one time an unclassified employee. "She is not
classified, nor has she ever been classified" (at 23).
(With respect to the status issue, Member Vorster dissented. In
his view it would be more accurate to describe the grievor as a
"former unappointed classified employee." The Public Service A~
only contemplates~.two~types of employees in the public service,
classified or unclassified. Accordingly, Member Vorster submitted,
14
if the appointment was improper, it was~the appointment which
should be corrected, not the job or the status of the particular
employee.)
In Koza____~k (Fisher) 977/88 the Board was called upon to adjudicate
a grievance where an unclassified employee claimed that he should
have been selected in a job competition for a position in'the
.classified service. The employer raised a preliminary objection
that only classified employees have access to Article 4 of the
Collective Agreement. in response, the Union claimed that 'the
grieVor had, at the time of his grievance, been improperly
appointed to the unclassified servi~e, and if he had been properly
appointed he Would have had access~to Article 4. For the purposes
of arguing the preliminary objection;' the allegation .that the
· grievor was improperly appointed to the unclassified service was
considered to be true.
The Board in Kozak followed Wagner in finding that it did not have
the power to' appoint an individual to the classified Service, for
to do so would cause the employer to breach the posting provisions
of the Collective Agreement. Having determined what remedial power
it did not have, the Board went on to canvass what remedial powers
it might have:
Although this Board has not in any way ruled that the
following procedure is appropriate, it may be that the
Board could do the following if it was found that the
grievor was Improperly appointed to the unclassified
service.
15
1. Order the employer to post the vacancy
that existed for the job the grievor was
actually performing at the time he filed the
grievance. In essence, this is nothing more
than the usual remedy where the Union brings
a grievance alleging that the employer has
failed to post a job where a vacancy exists
(at 2).
The grievor would then, as in Wagner, be permitted to compete for
the position in question: "A two-step procedure of this nature to
a large extent puts the grievor in the same position he would have
been in had the contract not been breached (i.e. had the employer
posted the vacancy crea%ed by the grievor's job) without giving
something more to the employee (i.e. achieuing classified status
without a competition)" (at 3).
Accordingly, in light of the Waqner and Kozak decisions, it can be
said, and union counsel said it, that while it may not be clear
whether the Board can order an unclassified employee to be
classified, it can order the posting of a position held by an
unclassified employee if it determines that the position should
have been classified. In this respect, the Board may make such
further orders so as to ensure that the unclassified employee who
performed the position is allowed to compete for it. Counsel
submitted that in light of this jurisprudence, if the Board found
that the positions in question were permanent onas, then it had
the power to order their posting.
16
In counsel's submission the three positions in question could be
fairly described as permanent ones. The position held by Dave Lyon
· existed prior to July 1988. Indeed, prior to that time it was
filled by a classified employee. In counsel's view, nothing has
happened since' 1988'to bring this position out of the classified
service. Counsel· argued~that it hardly behooved the employer to
say over an extended period of time that it was waiting fom the
position to be reclasgified before posting·it. After all, the
.employer has carriage of the Classification procedure.
With respect to the position occupied by,.Dave Deleon, counsel
pointed out that the Position has existed since at least 19'84, and
pointed out that'the employer did not ·call any evidenc~
convincingly demonstrating that this position was a temporary one.
The fact that the position had been performed..for approximately-six
years was further evidence of its ongoing and permanent nature.
With respect to the position .occupied by Neel Dutt,. counsel
acknowledged that it has'nevar been a classified one, but that it
was nevertheless ongoing work of the ~Ministry. In counsel's
submission, even when Dutt only ~orked 21.75 hours per week, the
part-time wor~ fell within the part-time classified service.
Counsel argued, moreover, that pursuant to Article 6.6.1 of the
· Collective Agreement, there was nothing wrong with having a
temporary unclassified person filling in on a classified position
17
where the incumbent was away for less than six months. However,
in counsel's submission, after six months if an unclassified
individual is occupying a classified position then that 'position
should be posted.
Employer Argument
As a general principle, counsel for the employer argued that it is
up to the employer to determine whether or not there~is sufficient
work to fill a vacant position. The. corollary of this principle
is ·that no~ vacancy exists, for' the purpose of the posting
requirements under the Collective Agreement, where the assignment
is, and is understood to be, temporary ~n nature.
With respect to the position occupied by Dave Lyon, counsel pointed
out that this position was posted when a vacancy arose following
the resignation of the incumbent. A qualified candidate was not
identified as a result of the posting procedure and the employer
decided to reclassify the position. Pending that rec!as~ification
the employer hired an unclassified individual. Counsel'drew the
Board's attention to a letter introduced into~evidence from the
Ministry to Mr. Lyon~ dated May i5, 1989, ~indicating that the
position was for a period of one year, although it might be renewed
so long as the position was not permanently filled, counsel
submitted that this letter made it clear that the position was a
temporary one in that the Branch wasstill attempting to secure'its
reclassification. Counsel advised the Board that once the position
18
is reclassified it will be posted. In counsel's view there was no
evidence indicating anything other than that the position was, in ~'
its unclassified state, a temporary one.
With respect to the position.occupied by Dave Deleon, counsel
argued that the evidence established that he was a group one
employee. Records introduced into evidence indicate that the
position he was performing was initially expected to be of a
relatively short duration. Subsequently his project was extended,
and one exhibit gives an ending date for Mr. Deleon's project o'f
January 16, 1992. In coun~el.'s submission the documentary evidence
established that the project should have ended earlier and tha~,
in any eVent, the project was of a non-recurring kind. Moreover,
Mr. Deleon was not holding a position formerly held by a classified
employee, where th~ posting requirements set out in Article 4 and
Article'6.6.1 of the Collective Agreement might be said to apply..
Counsel argued that nothing in the Public Service Act put a time
.limitation on a project of a ~on-recurring kind. The fact that the
project has been an ongoing one does not detract from its essential
non-recurring character. Counsel also pointed out that on November
17, 1988 the position held by Deleon was posted as a one-year
secondment. Two people applied, including a member of the Union.
The position was awarded to Deleon, and in Counsel's submission,
in these.circumstances the Union should be estopped from arguing
" that the position is not a temporary one.
19
Counsel for the employer did not make any arguments with respect
to the position occupied by Neel Dutt.
With respect to'Article 6.6.1 of the Collective Agreement counsel
agreed that any time the employer could clearly say that there
would be a vacancy of more than six months in a classified position
an obligation to post would arise. This obligation would not
arise, however, where it was originally thought that the vacancy
wo~ld last less than six months. It is, in counsel's view,
necessary to look at the reasons for the person occupying the
position.
Decision
While we did not hear significant evidence with respect to the
three positions in issue, what evidence we did hear establishes
their continuing character. The evidence establishes that the
position occupied by Dave Lyon has existed since prior to 1988 and
has, in the past, been filled by a classified employee. Likewise,
the position occupied by Dave Deleon has existed since at least
1984, and the fa6t that it has been around for so long strongly
suggests that it represents ongoing work of the Ministry. With
respect to the position occupied by Neel Dutt, the employer
effectively conceded its ongoing nature by not making any
representations with respect to it. Based on the evidence that we
heard, we have comp to the conclusion that none of the positions
before us falls ~ithin Regulation 881 of the Public Service Act.
2O
In ou~ view, just because a position is described, for example, as
a "project of a non-recurring kind" does not'make'it so, especially'
where all the evidence goes to its continuing nature. In Wagner
the Board made this point:
'The job has all of the attributes of a permanent part-
time position. Counsel for the Employer suggested that
it was a "project of a recurring kind" within Group 2.
We are trouble by the implicit suggestion that every job
could be said to be a "project." If that were so, then
every part-time.job could be filled.with an appointment
to the unclassified service, and the whole category of
· Regular Part-Time Civil Servants as recognized by Part
C of the Collective Agreement couId be dispensed with at
the Whim of the Employer. The rights of part-timers
gained through the negotiation process should not be so
lightly regarded. We are not prepared to. say for all
time precisely What is,a "project", but surely it would
~not include a.part-time job that but for its hours of
work is indistinguishable from the job being done by
someone else in the same workplace who has.the status of
a full-time classified employee. The Grievor was
employed in a job; she was not hired to undertake a
"project." Even if it was a project, can it be said to
have been "recurring"? This~ concept implies something
that stops and later beings again, according to a pattern
that may or may not be.predictable. This "project" was
continuous, and clearly the limitation of "for fewer than
twelve consecutive months" has not been met. The grievor
.worked for almost two years. The fact that none of her
contracts was for more than twelve months does not change
the fact that she was employed for more than twelve
months, The Employer cannot bring itself within the
less-than-twelve month limitation merely by giving a
series of short contracts.
Therefore, following the reasoning in Beresford, we
conclude that the job in which the Grievor was employed
was a job that ought to have been filled by an
appointment under sections 6 and 7 of the Public Service
Act. This may not have been the case when Welcome House
opened, because it is possible that the Employer may not
have known that the job was going to be as permanent as
it was. But if not right from the beginning then at some
later stage the Employer ought to have concluded that the
job was not ope to which an unclassified employee could
continue to be appointed, At some point in time,~it came
under an obligation to post the provision under the
provisions of either Article 4 or Article 6 of the
Collective Agreement. Having failed to do so, then, we
are in the position of assessing the consequences that
flow from that failure, and what if any benefits accrue
to the Grievor (at 12-13).
As already noted, the Board in Wagner then went on to order that
the grievor be entitled to compete for the position .should it be
posted in the future.
Accordingly, we find that the three positions in issue are ongoing
positions within the Ministry. Having made this finding, we now
turn to the matter of remedy. .
In our view, the jurisprudence of this Board Clearly establishes.
the principle that having found positions to be ongoing ones with
a particular government ministry, the Board has the power to order
that they be posted. That'is the issue before us in this case,
and we order .that the three positions in question be posted in
accordance with the procedure mandated in the Collective Agreement.
In making this determination, it is not necessary for us to comment
on' what, if any, limits exist to our jurisdiction to confer
classified status on unclassified employees.
We are satisfied that.the facts establish the ongoing nature of
the positions in dispute. The union, as it has done here, is
entitled to bring a grievance that the employer has failed to post
a job where a vacancy exists. While the grievances in the instant
case have been brought a~ a policy gr%evance by the Union, we are
of the view that in fairness to the unclassified employees holding
the positions in issue, they should be entitled to compete for them
when the posting takes place.
In the result, the grievance is upheld and the employer is ordered
.to post the~positions occupied by Dave Lyon, Dave Deleon and Neel
Dutt.
23 ~'
We remain seized with respect to the implementation of this award.
Dated at Ottawa this 25thday of March 199~~-
/
Vice-ChairPerson
F. Collict --
"Addendu~ attached"
Member
ADDENDUM TO G.S.B. #1480/89, ETC.
UNION GRIEVANCE
This Member Is tn concurrence with the award in this case and, as derived
from G.S.B. #351/89 (Wagner),
".,,the Jurisprudence of }his Board clearly
establishes the principle that having found
positions to be ongoing ones with a particular
government ministry, the Board has the power
fa order that they be posted."
(p, 21 o1' # 1480/89, etc.)
However, this Member would note that the matter is not as simple as that
stated by Union counsel to the effect that,
",..if there is an ongoing position, it
automatically falls within the scope of the
classified service, and accordingly must be
filled by a posting." "
(p. 8 of the award)
Hindsight does tend to provide 20-20 vision. Nevertheless, from an
operational viewpoint many jobs in the OPS are Initiated on the basis of
short term assignments, "bubbles", political programs (farm loan o.r grant
programs - O'Breza, G.S.B. ¢1101/88), summer programs, etc,; and it Is
indeed quite proper for these openir~gs to be filled with unclassified
employees, notwithstanding the fact that thy are doing a type of
work that normally would be done by classified employees within the
government, This point is conceded in G.S,B. #357/89 (Wagner),
"...This may'not hove been the case (of
assigning to the classified services) when
Welcome House opened, because it is possible
that the Employer may not have known that
the job was going to be as permanent as if
,
Regardless of this position however, thts Member is in agreement with the
Wagner award fa.the effect that,
",..at some.,.stage the Employer ought to have
concluded that the Job was not one to which
an unclassified emplayee could continue to be
appointed. At some point In time, If came
under an obligation to post the provision under
the provisions of either Article 4 or Article 6 of
the Collective Agreement."
F.T, Colli~
DATE