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HomeMy WebLinkAbout1989-1760.Union.90-10-01 I ONTARIO EMPLOYES OE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO -" GRIEVANCE CpMMISSlON DE SETTLEMENT REGLEMENT. BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8 - SUITE2100 TELEPHONE/T~L~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) Mt~G 1Z8. BUREAU 2100 (416) 598-0688 1760/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Union Grievance) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer - and - J. Roberts Vice-Chairperson T. Browes-Bu~en Member A. Stapleton Member FOR THE C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE W. Emerson EMPLOYER Employee Relations Officer · Human Resources Branch Ministry of Community & Social Services HEARING: May 24, 1990 AWARD This is an unusual case. It seems that in 1988 one of two Hair Dresser positions went vacant at the Oxford Regional Centre, a facility for the developmentally handicapped in Woodstock, Ontario. Instead of posting the ~osition, management filled it with unclassified staff on contract. On January 8, 1990, when it became apparent that this was a vacancy in the classified staff which should have been posted, the Union filed the grievance leading to the present'arbitration. Shortly after the filing of this grievance, management conceded that the position had improperly~ been placed in the unclassified service and posted the position in what was regarded by management as compliance with the requirements of the Collective Agreement. The posting, however, was made upon two conditions:' first; the job competition was to be "clOsed", in the sense that it was restricted Go applicants from within' the Oxford Regional Centre, and, secondly, it was characterized as a "career development opportunity" with a duration of just one year. The Union refused to accept the above posting, with its two conditions, as a complete answer to its Grievance and the matter proceeded to arbitration. It was the position of the Union tha~ both conditions were improper. In the submission of the Union, the job competition should have been made open to applicants from the general public as well as from within the classified staff at the Oxford Regional Centre. It als0 was the position of the Union that it was improper to designate the job as a developmental opportunity and that instead, ±t should~have been designated a regular, full- t/me position. At the hearing, Mr. F. Loach, the Manager, Human Resources, at the OxfOrd Regional Centre gave evidence as to the purpose of the two conditions. He stated that under a multi-year plan for the period 1987 to 1994 at the Oxford Regional Centre, it was incumbent upon management to prepare for reduction in staff. 'This was necessitated by a reduction in the client population at the Centre in favour of integrating them into the community. In order to reduce staff in as progressive manner as possible, Mr. Loach explained, it was decided to adopt an advanced approach rather than utilize the historic practice of "surplusing" unneeded employees. The idea was to "empower" ~taff-to pursue alternative careers by providing them with extensive support services as the Centre decreased in size. In executing this philosophy, Mr. Loach continued, the Oxford Regional Centre established a full-time Career Centre on-site. Its purpose was to assist employees in assessing their interests, skills and values so that they might determine the types of careers which these might favour. The Career Centre also assisted employees in determining the developmental requirements which would 3 be necessary to enable them to move into alternative careers, i.e., formal education, training, experience,, etc. It also provided assistance in the development of inter'view Skills, job research skills and resume preparation skills. Finally, the Career Centre made available to employees a large network of contacts with other Ministries and outside employers. When it came to the.attention of management that the vacancy in the Hair Dressing position should have been posted, Mr. Loach stated, several factors were considered in determining the conditions of the posting. These were consistent with advanced principles for vacancy management. The first question, Mr. Loach said, was whether the position needed to be filled, if the answer was yes, he went on, it was asked whether the position could be used to increase the skills and/or marketability of staff. If 'the answer was' yes again, he said, the position would be posted as a career development opportunity, which is essentially a temporary assignment. ~ The length Of such an assignment, Mr. Loach said, was determined by the length of time actually needed to learn' the job in conjunction with the institutional need to ensure the sense of security of the residents and consistency of service. In addition, he said, the Centre also considered the length of time an employee would need in such a position to.permit him or her to document it 4 in a credible way upon a resume. In most cases, this required' at least a period of one year. ~ The Hair Dresser job was designated a career development job, Mr. Loach testified, because management was aware of at least two employees at the Oxford Regional Centre who were licensed Hair Dressers but who were not practising this profession. Instead, they both were drivers. It was thought that posting the job as a career development opportunity would allow them to re-visit this career, revise and update their skills and get specialized experience in that area. Upon cross-examination, Mr. Loach agreed that the reason why the competition was' restricted to classified employees at the Oxford Regional Centre was that in a "downsizing" situation, management was not interested in adding additional classified people. Moreover, Mr. Loach added, management wanted to encourage classified people to leave the Centre before they would be required to bump down, etc., as the reduction in staff proceeded. It was submitted by counsel for the Union that, given the fact that the job was improperly filled with unclassified staff until after the grievance was filed, it was incumbent upon the Board to direct that the .job p~sting should be: (1) designated as a permanent vacancy and not a developmental position; and, (2) open 5 to applicants from outside the classified staff and not restricted -to classified employees within the Oxford Regional Centre. Counsel for the Ministry submitted that management's actions in posting the position satisfied the grievance and that it was beyond the jurisdiction of the Board to review the conditions placed upon the posting, i.e., designating the job as a one-year developmental position and restricting' the field of search to applicants from the classified staff at the Centre, because they were imposed in the exercise of the exclusive management rights of the Ministry under Section 18 of the Crown Employees Collective Bargaining Act. Section 18 (1) of the Act reads as follows: 18 (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine, (a) employment, appointment, complement, organization, a~signment, discipline, dismissal, suspension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b) merit system, 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 subject of collective bargaining nor come within the jurisdiction of a board. Under section 18 (1) (a) management has the exclusive right to determine, inter alia, employment and appointment. Under section 18 (I) (b)., it has the exclusive right to determine "training and development." So long as management reasonably exercises these rights in a manner not inconsistent with the remainder of the Act or the express provisions of the Collective Agreement, its actions will not come within the jurisdiction of the Grievance Settlement Board. Bearing this in mind, we have no alternative but to conclude that the decision of the Ministry to restrict the competition to classified staff at the Oxford Regional Centre is beyond the jurisdiction of this Board. We do not have the authority to substitute our judgment for that of management which, the .evidence disclosed, rested upon solid personnel considerations. We refer specifically to Mr. Loach's testimony that it was Considered to be inconsistent with the process of downsizing to add additional classified people, and his knowledge of the existence of some classified people at the Centre who were, in fact,, licensed to perform hmir dressing. The designation of the job as a one-year developmental position, however, stands upon another footing. It is not the designation of a job as "developmental" which ousts the jurisdiction of the Board under Article 18 (1) (b); the job must be developmental in fact. The Act speaks to s~bstance and not form. 7 We do not think that the drafters of the Act intended the substantive meaning of the word "development" in section 18 (1) (b) to include the process which management characterized as development here. In Re Union Grievance and Ministry of Transportation. and Communications {1986), G.$.B. #672/84 {Palmer) the Board said "[that] for the Employer to make use of the [training and development] exception of Section 18 (1) of the Act one of two situations must exist: either persons must be undergoing 'training' to prepare themselves for existing jobs; or they must be undertaking 'development' activities in relation to or in conjunction with an existing position." Id. p. 24. For "development", within the meaning of section 18 (1} (b) to occur, there must be a process for the enhancement of existing skills in an existing permanent position. See Id. at pp.. 24-25. In the present case, there was no development in this sense. The idea was not to enhance existing skills in an existing permanent position but rather to reacquaint, employees with former skills in a temporary one-year position to enable them to leave the employment of the Oxford Regional Centre and pursue an alternative career elsewhere. Within the meaning of the Act, this would not even qualify as a "training position" because, as already indicated, the purpose of "training", within the meaning of the Act, must be to prepare employees for existing jobs and not potential careers elsewhere. 8 According%Y, the grievance must be allowed in part. The posting which was made by the Ministry was not a complete answer to -the grievance. The job should not have been posted as a developmental position; it should have been posted as a permanent position. It was, however, within the province of the Ministry to restrict, the competition to applicants from within 5he classified staff at the Oxford Regional Centre. The matter is remitted to the parties in this position. We will retain jurisdiction of the matter pending implementation of 'a remedy not inconsistent with the terms of this award. DATED at London, Ontario, this 1st day of October R. J. Roberts, Vice-Chairperson r. rOwes-Bugden, .'t' · Member A. StaDleton, ~:~ Member