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HomeMy WebLinkAbout1990-0702.Patrick.91-03-25 ·~ - 1~ ONTARIO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G 128 TELEPHONE/TELEPHONE' (4 ¡6¡ 326- '388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), MSG lZ8 FACSIMILEITELÉCOPIE ' (416) 326-1396 702/90, 704/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GR¡EVANCE SETTLEMENT BOARD BETWEEN OPSEU (Patrick) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer BEFORE: G. Simmons Vice-Chairperson E. Seymour Member R. Scott Member FOR THE P. Lukasiewicz GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors , FOR THE J. Ravenscroft EMPLOYER Staff Relations Officer Human Resources Management Ministry of Correctional Services HEARING: January 29, 1991 . I ~. (, 2 The parties appeared with an Agreed statement of Facts. This statement reads as follows (Exhibit 1): , 1. In or about January, 1990, the Ministry posted an Opportunity Bulletin advertising 6 vacancies at the Whitby Jail for the position of General Duty Officer, classified as a Correctional Officer 2. 2. The opportunity Bulletin contained, inter alia, the following provisions: Note: 1. Applicants will be expected to successfully complete the Ministry Central Recruitment testing to be eligible for an interview, unless currently employed on the classified and unclassified staff as a Co~rectional Officer 1 or 2. Area of Search: Restricted to the classified and unclassified staff of the Whitby Jail. 3. The Grievor is employed by the Ministry as a Correctional Officer 2 at the Toronto East Detention Centre. 4. The Grievor lives in Newcastle and did so at all times material to the grievance. 5. The Grievor applied for the posted position. The Acting Superintendent of the Whitby Jail wrote to the Grievor on February 16, 1990, advising As this competition is restricted to the classified and' unclassified staff of Whitby Jail, I must inform you that you do not meet the criteria of the area of search. 6. The Grievor was not given an interview for the position. 7. The Grievor has over 13 years experience with the Ministry as a Correctional Officer 2. 8. The Ministry granted an interview to an individual employed on the unclassified staff of the Whitby Jail as a security officer, notwithstanding the fact ,- .. ~ 3 that the individual had not successfully completed the Ministry Central Recruitment testing as required by Note 1 of the Opportunity Bulletin. This individual was not a successful candidate. 9. .The Ministry interviewed 14 qualified candidates for the 6 vacancies. 10. The policy of the Ministry of Correctional Services respecting staffing is attached as Schedule 'A'. 11. The policy of the Management Board of Cabinet respecting Area of Search is attached as Schedule 'B' . 12. The distance between Newcastle and Toronto East is about 100 kIn (1 hour drive) and the distance between Newcastle and the Whitby Jail is about 20 kID (15 minutes drive). References to Schedule I A I and I B' refer to staffing policies. The pertinent provision in Schedule 'A' reads (Exhibit 2): POLICY/PROCEDURE I The Area of Search for Bargaininq Unit and Manaqement Recruitment up to and including AM-16 The manager, in consultation with the regional personnel administrator, will decide on the area of search based on his/her knowledge of 'available resources and the guidelines contained in section 5, Ontario Manual of Administration, Volume II. Provided that due consideration is given to these guidelines and to the requirements to identify at least three candidates, a manager can select from the following geographical areas of search: - local - restricted to employees working in a specific institution or office I - employees residing within 40 km of work location I - regional or ministry-wide - oPS-wide 1:,> 1\ 4 In addition to defining the geographical area of search, a competition may be designated as falling within one of the following three categories. - 'open' - such a competition is I open I to all members of the general public. As such, all applications should be entertained. However, postings of the competition notice may be restricted. - Restricted to classified employees. - Restricted to unclassified and classified employees of the Ministry of Correctional Services. , The relevant provisions of Schedule I B' (Exhibit 3) read as follows: Considerations in Determining Area: I The following shall be considered in determining a reasonable area of search: · all relevant Acts, policies, procedures and programs relating to staffing actions~ · the size of the candidate population required to identify not less than three qualified candidates; · the need to provide career opportunities for civil servants; · the need, when recruiting outside the civil service, to ensure that civil servants are given opportuníties to apply ánd to be consídered; · the urgency and cost in satisfying the staffing needs of the ministry program. Shortly following the éommencement of these proceedings, the Employer raised a preliminary objection claiming that the Board was without jurisdiction to hear the matter on its merits. Counsel submitted a prior decision of this Board (Carson/French 582/89 dated August 7, 1990, Kirkwood Vice-Chair) in support of its I .to ~.. 5 position. Counsel for the Employer stated that the matter of grieving the Employer's decision to restrict the area of search for a competition has been decided on numerous occasions. The Carson/French decision canvasses this issue and concludes that, without an allegation of bad faith, the issue has been settled and dismissed the grievance. Counsel contended that this Board is likewise without jurisdiction to entertain the matter on its merits and sought to have the grievance dismi~5~d. Counsel for the union asserted that the issue in the instant proceeding is distinguishable from the Carson/French decision in that the Union is not claiming that the Employer cannot restrict the area of search. Rather, it is claiming that the policy set out in both the Ministry and Management Board guidelines requiring at least three candidates for each position was violated when, as will be seen, there were only 15 applications (14 qualified) for the six available positions. Therefore, the three candidates requirement for the available positions was not met and the competition was therefore not properly carried out. After hearing the parties we are in agreement with the 'Union that the issue before the instant Board is somewhat different than that which was before the prior panels and we therefore do not agree with the Employer that we lack jurisdiction to enquire into the matter. Therefore, the preliminary objection is dismissed, and we will now proceed to the merits. As stated in the Agreed statement of Facts, the Ministry, through the superintendent at the Whitby Jail, posted a competition ¿-,. {¡ 6 inviting applications for six vacancies in the position of "General Duty Officer". The classification is "Correctional Officer 2". The posting went up on February 1, 1990, and the closing date was February 15, 1990. The posting set out the following qualification requirements (Exhibit 4): QUALIFICATIONS ontario Grade 12 or formal proof of an equivalent educational standing; satisfactory related work experience; good oral and written communication skills; good interpersonal skills and ability to work effectively with inmates, supervisors, peers, volunteers, etc.; ability I to exercise sound judgement and react to abnormal situations; knowledge of relevant legislation, regulations, policies, etc. ; knowledge of security techniques and equipment; willingness and ability to work rotating shifts, weekends and holidays; ability to meet Ministry medical and physical standards, including proven ability to maintain satisfactory attendance. Successful completion of mandatory Ministry training plus one year's satisfactory current experience as a Correctional Officer 1 (candidates lacking the above criteria will be required to underfill at the Correctional Officer 1 level). Note: 1." Applicants will be expected to successfully complete the Ministry Central Recruitment testing to be eligible for an interview, unless currently employed on the classified and unclassified staff as a Correctional Officer 1 or 2. 2. Applicants may be short-listed based upon experience, satisfactory work performance and attendance. 3. Applicants may be required to successfully complete a written examination in order to qualify for an interview. " 1 7 Qualified and eligible applicants are invited to submit an application by 4:30 p.m. on February 15, 1990 to: The Superintendent Whitby Jail 200 Victoria Street West Whitby, ontario Y1N 5G3 AREA OF SEARCH: Restricted to the classified and unclassified staff of the Whitby Jail. It is to be noted in the job posting that the area of search was restricted to the classified and unclassified staff of the Whitby Jail. It is acknowledged that at the time of the posting there were 21 unclassified staff members employed at the Whitby Jail. However, as the Agreed statement points out the Ministry interviewed 14 qualified candidates plus one other who was not qualified. The Union claims that the policy of both the Ministry and I Management Board of Cabinet was not followed in the instant situation because there were six vacancies and only 15 applicants or candidates applied for the positions. Therefore, the Union seeks a declaration that the competition was invalid and that it be rerun. The Employer's position was that there were 21 potential applicants and therefore the policy w~s not violated. We are of the opinion that the Employer's position is to be preferred over that of the Union's. When one looks at the policy of Management Board of Cabinet one can see that one of the (~ <" , 8 - I I considerations reads in part as follows: ffthe size of the candidate pOPulation required to identify II is the operative . . . comment in that statement. If one were to stand back and assume I the role of the person who is to make the decision concerning what area is to be included in a search, one would have to start with the population that he/she had to work with. In other words, assuming that it was the superintendent in the instant situation, he was the person who decided that he required six positions to be filled. Before putting up a posting he would have to decide the candidate population that he had to work with. Upon looking at this population he would know that he had at least 21 staff members who could be candidates for the six positions. It appears, therefore, that having more than 18 potential candidates the superintendent had a sufficient population to meet the policy requirements. Once the vacancies are posted the superintendent no longer possesses any control over what transpires. All 21 staff members may apply or only a portion may do so. The point is, however, the superintendent has no further control over what transpires after the posting goes up. To say that there had to be at least 18 applications to fulfill the requirements of the policy would dictate what the superintendent must do prior to the posting going up. As pointed out, this cannot be the intention of the policy because to decide otherwise would be analogous to having the tail wag the dog. Accordingly, we do not believe that the policy was violated and that the Employer was correct in restricting the search as it , '! '\. '0'- \ J 9 did, and that therefore the grievor cannot complain because he was not granted an interview. The grievance is therefore dismissed. Dated at Kingston, ontario this ~ day of M-'lrrh , 1991. Þ4 'cf Mr. C. Gordon Simmons vice Chairperson á~/¿4~ Mr. Ed Seymour Member ~ Mr. Rollie Scott Member -