Loading...
HomeMy WebLinkAbout1991-0358.Mitchell.95-04-12 ~. , . · ;,? ' '~. ~:i . ONTARIO. EMPLOY~'$ OE LA COblR'ONNE , · ' :i '~ :': CROWN EMPLOYEES DE L'ONTARJO "~"' GRIEVANCE COMMISSION DE BOARD DES GRIEFS APR 1 z 1995 180, RUE DUND~ OUES~ BUR~U 21~, TORONTO (ON) MSG lZ8 FAC~~O~H ~- 13~6 APPEAL BOARDS GSB ~ 358/91 OPSEU ~ 91B474 IN THE ~TTER OF ~ ~IT~TION Under THE CRO~ EMPLOYEES COLLECTIVE B~GAINING ACT Before THE GRIEV~CE SETTLE~NT BO~ BE~EN OPSEU (Mitchell) Grievor The Crown in Right of Ontario (Minist~ of the Enviro~ent)- Employer . BEFO~ N. Dissanayake Vice-Chai~ermon E. Se~our' Me, er J. Miles Me, er FOR'THE I. Mitchell, Grievor GRIEVOR A. Ryder Counsel Ryder, Whitaker, Wright Barristers & Solicitors FOR THE C. Rowan EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors HEARIN~ November 14, 1994 DECISION This is a most unusual case. In November of 1989 the employer posted a vacancy for the position of Electrical Foreman. There were three applicants. The present grievor, Mr. Irvin Mitchell was eligible to apply but did not. Following a competition process, the position was awarded to one of the three applicants. One of the two unsuccessful applicants Mr. James Cardno grieved, 'alleging that the competition process had been flawed. The evidence indicates that following settlement discussions, Mr. Kevin Whitaker, counsel for the union forwarded to employer counsel Ms. Maureen Farson, draft Minutes of Settlement of Mr. Cardino's grievance, which included a provision that "The competition is to be re-run between the grievor and the incumbent". . The employer had concerns about restricting the re-run of the competition'to the two individuals. Following discussion between the two counsel, the provision in question was struck out in the draft by Ms. Farson. In its place she wrote by hand the words "Only the original applicants may apply" and faxed the draft back to union counsel. The uncontradicted evidence is that, while the amendment was not initialled by anyone, when the Minutes of Settlement were executed on November 7, 1990 by the employer, union and %he grievor Cardno, the document contained the amendment. By a grievance dated January ~15, 1991 Mr. Mitckell grieved the fact that he was denied t~e opportunity to compete in the re-run as a result of the settlement restricting the re-run to the original applicants. His grievance came before a panel of the Grievance Settlement Board on May 22, 1!)92. The panel consisted of Vice-Chair Bronstein and Board Members Clark and Shipman. The evidence indicates that at that hearing the employer was represented by counsel Ms. Maureen Farson and the union by Mr. J. Gosal, a union representative. The employer raised a preliminary objection to the arbitrability of the grievance on the basis that the Minutes of Settlement were binding and that the Board could not go behind it. The union did not dispute the existence of the settlement, but indicated to the Board that Mr. Mitchell had a number of concerns. These were elaborated to the Board by Mr. Gosal as (1) Whether the hand- written amendment in the Minutes of Settlement was made before or after its signing, (2) whether the Minutes constituted a decision of the Grievance Settlement Board and (3) why only two of the three original applicants had participated in the re-run of the competition. Employer counsel responded that the amendment was made before the signing, that the settlement was not a de~ision of the Board and that the third applicant had chosen not to participate in the re-run. 4 Following this exchange the Board received submissions on the employer's preliminary motion that Mr. Mitchell's grievance was inarbitrable because the settlement was binding and that since he was not one of the applicants in the original competition, he was not entitled to participate in the re-run held pursuant to the settlement. Following a recess of approximately 30 minutes the panel rendered an oral ruling upholding the employer's position that Mr. Mitchell's grievance was not arbitrable. Following the ruling, Mr. Mitchell sought to address the Board and the Board agreed to hear him. Mr. Mitchell testified before us that he raised six points with the Bronstein panel. (1) What document was regarded by Management as the valid document - the original~ or amended version. (2) Who made the hand-written amendment and when. (3) Was the settlement document a decision of the Board. (4) That the settlement document was contrary to article 4 and that the union had a duty to inform the employees why the settlement was made. (5) Why one of the original applicants had not been invited to participate in the re-run. (6) That the union had failed in its responsibility towards him by conceding that the original competition was flawed without any evidence to that effect. Mr. Mitchell testified before us that when he addressed the Bronstein panel, he was aware that a ruling had already been made that § his grievance was inarbitrable and that whatever he had to say to the Board would not make any difference. Ail of the evidence indicates that while the Board made an oral ruling, it clearly intended and expressly undertook to the parties that a written decision would be issued confirming the oral ruling. However, repeated attempts by the parties as well as the Chairperson of the Grievance Settlement Board to obtain a written decision from Ms. Bronstein have been unsuccessful. Everyone concerned appears to be satisfied that a written decisioh will not be forthcoming. The union requested in the ~circumstances that Mr. Mitchell's grievance be re-scheduled. The present pane], was assigned to deal with the dispute between the parties as to the legal consequences of this unusual situation. The proceeding before us became even more complicated because the union did not represent'the grievor Mr. Mitchell with regard to his challenge to the validity of the Minutes of Settlement. Therefore the grievor represented himself with regard to (a) the question of when the hand-written amen(~ent to the minutes of settlement was made, and (b) his allegation that the settlement was void because it was contrary to article 4. However, on behalf ofl the grievor, the union advanced the position that any oral ruling made by the' Bronstein panel was not a binding decision of the Grievance Settlement Board in the absence of a written decision and that therefore this panel was entitled to hear Mr. Mitchell's grievance de novo. Reliance was placed on section 17 of the Statutory Powers Procedure Ack which provides: S.17 A tribunal shall give its final decision and offer, if any, in any proceedings in writing and shall give reasons in writing therefore if requested by a party. The employer takes the position that the Statutory Powers Procedure Act has no bearing on the binding nature of a Grievance Settlement Board decision. Counsel relied on section 12(4) of the Crown Employees Collective Baraaining Ac~ which provides: S.12(4) The Arbitrations Act and the Statutory Powers Procedure Act do not apply to arbitrations under this Act. The union's response is that the reference in S. 12(4) "arbitrations" is limited to interest arbitrations and not to proceedings before the Grievance Settlement Board. The grievor Mr. Mitchell has demonstrated that he had personal concerns that his rights under the collective agreement have been violated. It was apparent that in this regard he was at odds not only with the employer, but also with his union. If this grievance is determined on the legal issue of arbitrability, the grievor's lingering concerns may never be allayed or answered. That would not be condusive to a good ? relationship between the grievor and his employer and the union. In the circumstances, we have decided that it is preferable to deal with the merits of Mr. Mitchell's grievance, assuming, but without finding, that it is properly before us despite the earlier ruling.by the Bronstein panel. As noted, the union's participation in the hearing before us was restricted to the legal issue, of whether the oral ruling by the Bronstein panel was a bar to this panel's jurisdiction to hear Mr. Mitchell's.grievance. It did not take a position on the merits of Mr. Mitchell's allegation that the settlement in question was ~oid as being contrary to his rights under article 4. Mr. Mitchell led evidence and made submissions on his own behalf in relation to the merits of his grievance. Having carefully.considered the evidence and submissions, we have no choice but to dismiss his grievance. The most significant fact in this grievance is that the grievor was not an applicant in the Original competition. He testified that at the time he was not in a position to participate in a competition proces~ because of the serious illnesses afflicting his parents-in-law. While we fully understand and sympathize with the grievor in relation- to the reasons for not applying for the posting, those circumstances do not change the legal consequences~of his non-participation 8 in the competition. Once he failed to apply, he no longer has the standing to question the competition process held pursuant to the posting. Where a job applicant grieves that a posted position has been improperly denied, the grievance would go before the Grievance Settlement Board for a formal hearing, if the parties are unable to resolve it. Where the Board concludes that the competition process was flawed one of two remedies may follow. Under certain circumstances the position may be awarded to the grievor. Alternatively, and in most cases, the remedy is to direct that the competition be re-run. Where the Board resorts to the latter remedy, the re-run is almost without exception restricted to the grievor and the successful incumbent, or in some cases to all of the original applicant~. We cannot think of any circumstances in which the Board would extend the re-run to employees who did not apply in the first instance. Therefore, it is apparent that what the union in this did in this case is no different from what the Board would have done if a flawed competition process was found. Mr. Mitchell appeared to take the position that the union ought not to have taken the position that the process was flawed. However, there is no evidence that the union in any way acted in bad faith. Even if the union's actions were somehow tainted by an unlawful motive, that does not violate any right of Mr. Mitchell under article 4 or any other provision of the 9 collective agreement, although he may have had reco~rse against the union before a different forum. Mr. Mitchell also raised concerns about the late invitation extended to one of the original applicants, Mr. Surgit Arora, to participate in the re-run. If the employer erred in this regard, it does not affect any right that M~. Mitchell had. If any thing, it would have violated the rights of Mr. Arora. Mr. Arora in his testimony made it clear that he had found another job and that he was not interested then or now in the re-run competition. Mr. Mitchell is thus not entitled to enforce any right that Mr. Arora may have had. In all of the circumstances we find that there has been no violation of Mr. Mitchell's collective agreement rights. Therefore his grievance is without legal basis and must fail. The grievance is hereby dismissed. Dated this 1)_thday of 'Apri-t-~ 1995 at Hamilton, Ontario Vice~Chairperson E. Seymour Member