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HomeMy WebLinkAbout1990-1314.McKeegan.91-12-12 t , ~¡:?'- ONTARIO EMPLOYÉS DE LA COURONNE ~ CROWN EMPLOYEES DE L'ONTARIO 111_ GRIEVANCE COMMISSION DE ~ SErrLEMENT REGLEMENT I BOARD DES GRIEFS 180 DUNOAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONEITÊLËF'HONE.' (4161 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, ' TORONTO (ONTARIO), M50 lZ8 FAcSIMILEITÉLÉcOPIE .' (<116) 326-1396 1314/90 IN THE HATTER OP AN ARBITRATION under THE CROWN BHPLOYEES COLLECTIVE BARGAINING ACT Before THB GRIEVANCB SEftLEDN'1' BOARD BETWEEN OPSEU (McKeegan) Grievor - and - . The Crown in Right of Ontario (Ministry of Health) Employer BEFORE :, J. Roberts Vice-Chairperson S. Urbain Member F. ,Collict Member )lOR THE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & solicitors' FOR THB J. Crawford EMPLOYER Counsel Legal Services Branch Ministry of Health BEARING May 27', 1991 ~ t .. . 1 INTBRIM AWARD . At the outset of the hearing in this matter, counsel for the Ministry raised an objection to jurisdiction of the Board. This objection was based upon two grounds: . (l) that as a part-time employee the grievor did not have any right under the Collecti.ve Agreement to grieve the loss of a job competition for a full-time position: and - ~ . (4) even if a part-time employee had the right to grieve the loss of a job competi tion fOll:' a full-time posi tiOD, the grievo:, still would not bav'e been entitled to grieve because ht::: was a contract elD.ployee in the unclassified service and, accordingly, did not have access to the protection offered classified emplo:;2'es under the Collective Agreement~ It was recognized by the parties that the first issue, above, was a threshold issue in the sense that a finding against the grievor thereupon would make it unnecessary to deal with the second issue; however, it was agreed between the parties that regardless of our decision upon the first issue they were! content to have the Board make a declaration upon what was termed the Beresford issue, i.e., whether the grievor' s appointment to th.e uncla,ssified service was I . ., . 2 proper, within the meaning of section 8(1) of the ~ublic Service , . Act. 1. THE RIGHT OF REGULAR PART-TIME CLASSIFIED EMPLOYEES TO GRIEVE THE LOSS OF JOB COMPETITIONS FOR FULL-TIME j?OSITIONS I Essentially the submissions of the parties upon this issue revolved around the following provisions of Part C of the Collective Agreement. dealing with regular part-time civil servants: Part C - REGULAR PART-TIME CIVIL SERVANTS ARTICLE 58 - APPLICATION OF PART C, REGULAR PART-'TIME CIVIL SERV ANTS I 58.1 The only terms' of this Agreement that apply 10 employees who are regular part-time civil servants ?-n: l~ose that an: set out ill this Part, No provisions In this Agreement other than those inCluded in this Part ~hall apply to civil servants in regular part-time. pOßluons, ARTICLE 59 - OTHER APPLICABLE ARTICLES, REGULAR PART· TIME CIVIL SERV ANTS 59,1 The following Articles of this Agreement shall also apply LO regular part-time civil servants.: ARTICLE I Recognition ARTICLE A No Discriminationl ARTICLE 2 Employment Equity Check-õff of Union Dues ARTICLE 6 Temporary Assignments ARTICLE 9 Scheduled Tour of Duty or Shift ARTICLE 10 Shift Schedules ARTICLE II Shift Premium ARTICLE /2 Res. Periods ARTICLE 14 Call Back ARTICLE 16 On-Call DUlY ARTICLE J7 Meal Allowance ARTICLE 21 Non-Pyramiding of ARTICLE 22 Premium Payments llilometric Rates ARTICLE 23 Time Credits While TravellinB ARTICL~ 2S Seniority (length of Continuous Service) ARTICLE 26 Closing of Facilities ARTICLE 27 Grievançe Procedure ARTICLE 11 Lta~ - Union At\Î\lities ~ ~ 3 ARTICLE 29 Leave Wilhout Pa~ ARTICLE 30 U,ave - Special ARTiClE .11 U,ave -- Foreign, 1 nlergovernmental ARTICLE J2 L(,ave - Jury Duty ARTICLE 3J Leave -. Military Sen'"¡ce ARTICl.E 34 Le,ave Credits Report ARTICLE 35 Local and Ministry Negotiations ' ARTICLE 36 Information t,o New Employees ARTICLE 37 Joint Consultation Committee ARTICLE 85 Term of Agreement ARTICLE ~ - POSTING AND FILLING OF REGULAR P¡\RT·TIME POSITIONS 60.1 Effective Marçh 16. 1987, when a vacancy occurs in the Classified Service for a regular part-1ime position in the bargaining unit or a new regular part-time classified position is crealed in Ihe bargaining unit, it shall be advertised for alleast ten (10) calendar days prior 10 lhe established closing dale when advertised within a Ministry, ,)r it shall be advertised for at least fifteen (15) calendar da)l$ prior to the established closing date whe'1 advertised service-wide. All applications will be acknowledged. Where practicable, nOlice of vacancies shall be posted on bu lIetin boards. 60.2 The notice of vacancy shall stale, where applicable, the nature and lille of the position. the qualifica- lions required, the ~weekly hours of work" and Ihe ~basic hourly rate" or Ihe "weekly rate'" 0Cp~y as defined in Article 62 \ Pay and ßcncfits '\dmlnIßtra- I ion I, and the area in which t he position ex ists. 60,) In filling a vacanc~, I he ,E mployer shalt @:ive p~imary consideration 10 qualificalions and ability to perform Ihe required duties, Where qualifications and abilit)' are relatively equal. l£ngth of continuous §to-ice shall be a consideration, An applicant who is invited 10 attend an interview within Ihe civil service shall be granted lime off With no 1055 of pay and with no loss of crediu to attend the interview. provided that the time.c.ff does not unduly interfere with operating requiremenu, It was evident from the submis~lions of the parties that counsel for the Union based his contenti.on that part-time employees were entitled to grieve the loss of jOb competitions for full-time positions upon Article 60.3, above. It was stressed in this I ~~ , ~ 4 sUbmission that Article 60.3 essential mirrored Article 4.3, relating to jOb competitions for full-time employees, and, moreover, in its express terms Article 60.3 solely related to a "vacancy". It was not restricted to vacancies occurring in part- . time positions. This meant, it was submitted, that part-timers were entitled under Article 60.3 to file.grievances challenging the application by the Employer of the selection criteria set forth in Article 60.3, regardless of whether the vacancy in question was for a full-time or part-time position. - . Counsel for the Ministry, however, submitted that Article 60.3 could not be read in such a fashion. .It was pointed out that the title of Article 60 -- posting and filling of regular part-time positions -- related solely to part-time positions and moreover, because Article 59.1 excluded from apPlication to part-time employees the provisions of Article 4 of the Collective Agreement, it would be unreasonable to interpret Article 60.3 in accordance with the submission of the Union. With regard to this, the Board also noted that Article 60.1, which forms part of the same code as Article 60.3, relates solely toa vacancy "for a regular part-time position in the bargaining unit or a new regular part-time classified position." Upon considering these submissions, the Board unanimously concluded that Article 60.3 did not provide part-time employees with the right to grieve the loss of job competitions for fUll-time ~ " 5 l positions. We concluded that this pro'i7ision solely related to part-time vacancies, as evidenced by the exclusion of Article 4 in Article 59.1, the title of Artic:Le 60 and the express limitation to part-time positions in Article 60.1~ In liqht this findinq, w'e must conclude that· the preliminary objection to'jurisdiction-raised by the Ministry is allowed. Even if the qrievor had been a member of th,e classified service, be still would not have possessed the riqht to qrieve the job competition for the instant full-time pOfiÍtion. , - 2. THE PROPRIETY OF THE GRIEVOR' S APPOINTMENT TO THE 'UNCLASSIFIED SERVICE PURSUANT TO SECTION 8 (1) O]~ THE PUBLIC SERVICE ACT As indicated at the outset of this i:nterim award, the parties agreed to submit the foregoing issue to this Board regardless of the conclusion we reached on the first issue, above. Initially, we were tempted to take the parties up on this offer, however, upon reflection, the best course of action seems to be to decline, and we do so. . This panel is aware that the questiOltl of improper appointment to the unclassified service is one of the most-litiqated issues currently before this Board. It would seem unwise for a panèl that is functus officio, in the sense of having finally disposed of a grievance, to add to the current avalanche of jurisprudence its own I ~ .::.. 6 gratuitous pronouncements upon the issue. Such pronouncements would be no more that obiter dicta, since they would not have formed part of the determination of any issue essential to the disposition of the case. Moreover, the panel is troubled by the lack of guidance from the parties upon what we consider to be a fundamental aspect of the question they sought to place before uš: the degree of authority that the Grievance Settlement Board must accord to Regulation 881, promulgated by the Civil Service commission under the public Service Act~ At the hearing, it was unclear to us whether this requlation had any binding effect upon us in interpreting the Public Service Act or whether it only had to be accorded respect. When we put our concerns to the parties regarding this aspect of the case, they were unable to offer us authorities upon which we could rely. . It is our recommendation that should this issue arise in a future qrievance between the same parties, they direct the Board to authorities from the area of administrative law that may be helpful upon this question. The grievance is dismissed. . . . . 1 DATED at London. Ontario. this 12th day of December, . 1991. ¿- ~ .. (without written reason) s. Urbain ~7 gf¿~:f F. 4'&lli t" I . l· I I I