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HomeMy WebLinkAbout1991-2704.Union.93-02-18~ ONTA RIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES . DE L~ONTARIO -' GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET wES~ S~TE 2 lO0, TORONTO, ONTARIO. M5G IZ8 TELEPHONE/T~L~HONE. (4 16) 326- I388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G rZ8 FACSIMILE/T~L~CO~E : (4 t6) 326 t396 2704/91 Under THE C~O~I~ EHPLOYEES COLLECTIVE B~RGAIN[NG ~CT Before THE GR[E~NCE SETTLEHEI~T BOARD BETWEEN OPSEU (Union Grievance) erievo~ - &~d - The Crown in Right of Ontario (Ministry of Correctional Services) .Employer B~FOR~: W. Kaplan Vice-Chairperson I. Thomson Member M. O'Toole Member FOR THE M. McFadden UNION Counsel Koskie & Minsky Barristers & Solicitors FOR THE J. Ravenscorft EMPLOYER Grievance officer Ministry of Correctional Seri~ce~ FOR THE THIRD D. Cain PART~ HEARING January 14, 1993 Introduction By a grievance dated November 28, 1991, the union alleges that the empioyer has contravened Article 4 of the Collective Agreement. That provision states: 4.1 When a vacancy occurs in the Classified Service for a bargaining unit 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 (1 $) working days prior to the established closing date when advertised service-wide. Where practicable, notices of vacancies shall be posted on bulletin boards. 4.2 The notice of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required, the hours-of-work schedule as set out in Article 7 (Hours of Work), and the area in which the position exists. 4.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. 4.4 An applicant who is invited to attend an interview within the civil service shall be 9ranted time off with no loss of pay and with no loss of credits to attend the interview, provided that the time off does not unduly interfere with operating requirements. It is also useful to cite the relevant statutory provision. Section 18(1) of the Crown Employees Collective Bargaining Act provides: 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, ia) employment, appointment, complement, organization, assignment, discipline, dismissal, suspension, work methods and procedures, kinds'and locations of equipment and classification of positions; and This grievance proceeded to a hearing in Toronto, at which time the parties submitted an agreed statement of facts (and this statement was without prejudice or precedent to any other matter that may arise between the parties). Mr. Cain, the incumbent, also testified on his own behalf, and was accorded full participation rights. In brief, it was the union's Position that the employer had contravened the Collective Agreement by allowing Mr. Davicl Cain to compete in a classified job competition, and then awarding him the position contrary to the stated requirements of the job posting. The employer argued that it had adhered to the requirements of the job posting, and that there was no violation of Article 4 of the Collective Agreement. The Evidence The Elgin-Middlesex Detention Centre (hereafter the "Detention Centre") is a maximum security institution located in London, Ontario. At the relevant time, the Detention Centre employed approximately 151 classified correctional officers, and approximately twenty-five to thirty unclassified correctional officers. In the three years prior to the filing of this grievance, there have been, on average, ten classified vacancies each year. On August 12, 1991, the Detention Centre posted a classified correctional officer vacancy. The relevant part of this posting states: "Area of Search: This competition is RESTRICTED to the classified and unclassified staff of Elgin-Middlesex Detention Centre, London." Mr. David Cain applied for the position, as did several other employees. Mr. Cain was successful, and shortly after his appointment was announced the union filed the grievance at issue in this case. Mr. Cain testified. He has been a government employee and union member for over sixteen years. Mr. Cain's public service career began at the Oxford Regional Centre in Woodstock. Prior to the appointment referred to above, Mr. Cain was a Residential Counsellor, ;~. Beginning on May Zl, 1991, Mr. . Cain was assigned to the Detention Centre on a Developmental Assignment. A memorandum of agreement was entered;into and signed by Mr. Cain, a representative from Human Resources at the Oxford Regional Centre, the acting local union president of the Oxford'Regional Centre and the Superintendent of the Detention Centre. Among other things, this document stated that Mr. Cain would retain his Residential Counsellor 2 salary while on the Developmental Assignment. That salary, in fact, was slightly lower than that received by unclassified Correctional Officers with whom Mr. Cain worked. The memorandum provided that Mr. Cain would still be paid .by the Oxford Regional Centre, which would be reimbursed by journal entry by the Detention Centre. The memorandum further stated that Mr. Cain.would occupy the "position" of "Correctional Officer 1 Underfill Schedule 4,7 40 hrs. per week," The assignment began on May 21, 1991, and was scheduled to run until November 21, 1991. The developmental assignment was. subject to renewal, and could be terminated by either party on two weeks written notice. Prior to the expiry of its term, Mr. Cain won a competition and began work as a full-time classified correctional officer.- 'Mr. Cain testified generally about his duties and responsibilities at the Oxford Regional Centre. He worked with mentally retarded adults, and persons with psychological problems. His duties included teaching these persons life skills, and Mr. Cain told the Board that he liked working with people. His future at the Oxford Regional Centre was not, however, a promising one as that institution was downsizing, and it is anticipated that it will eventually close. Accordingly, Mr. Cain began to look for other work.- A career centre was set up at the Oxford Regional Centre, and Mr. Cain became interested in working in corrections, as this would allow him to remain in the public service, and still work with people. Central recruiting held a test for prospective employees, and Mr. Cain took it and passed. Subsequently, he attended a job fair at the Oxford Regional Centre, and he approached one of the representatives from the Detention Centre to inquire about his job prospects. Later that day, he was advised that he was second on the list for a job at the Detention Centre, and he was offered a part-time casual position. Needless to say, with almost seventeen years of seniority with the Ontario Public Service, Mr. Cain was somewhat reluctant to resign from his classified position to begin work as an unclassified part-time employee. Accordingly, he inquired whether or not it would be possible to be seconded to the Centre for some time, and Mr. Cain testified that the developmental assignment described above was immediately entered into with the enthusiastic support of all concerned, including his acting local union president. Mr. Cain began work, he liked his job, and when the classified position was posted, he applied for it. Mr. Cain testified that he received the same training as did other new employees at the Detention Centre. Moreover; his' working conditions were exactly the same as those of other employees, and he worked the same schedules and was subject to the same supervision and discipline as other correctional officers working at the Detention Centre. His vacations and absences were also subject to Detention Centre approval. He told the Board that it was his understanding, when he took the developmental assignment, that he could apply for full-time classified positions which arose during the term of his assignment, and he also understood that there were no guarantees that he would have a full-time job at the end of that assignment. He also testified that his job at the Oxford Regional Centre has become redundant, and that there was no .position for him to return to. Some further facts are also relevant to the disposition of this case. At the time of the competition in issue, Mr. Cain had not been declared surplus at the Oxford Regional Centre. In addition, it is not uncommon for there to be temporary assignments between instituti°ns within the Ministry of Correctional Services. Persons occupying temporary assignments have always been considered to come within the area of search for competitions restricted to a particular workplace. I~oreover, the I~inistry of Correctional 7 Services Policy and Procedure Manual sets out the employer's policy with respect to this issue as follows: Acting Positions, Secondment or Temporary Assignment Staff in these situations may apply for competitions where area of search includes their home/assignment location. Union Argument Union counsel began his argument by.referring to the job posting and pointing out that it clearly indicates that the competition is restricted, and arguing that Mr. Cain was, accordingly, not eligible to apply. Counsel did not take issue with the employer's right to determine the area of search, but argued that once the employer has limited the area of search it must abide by the limitations that it has established. As Mr. Cain was a permanent employee of the tvlinistry of Community and Social Services he was not, in counsel's submission, eligible to apply for the position. Expanding on these points, counsel argued that as Mr. Cain ~was on a developmental assignment he must have expected, at the end of that assignment, to return to his former position. In counsel's view, the facts suggested that this was the case, and couns.el pointed out that Mr. Cain continued to receive his salary from the Ministry of Community and Social Services. The whole point of a developmental assignment is for an employee to gain experience in different positions and workplaces, and then use that experience in his or her job, or in taking advantage of the surplus provisions of the collective agreement. Counsel reviewed those provisions with the Board, and argued that they establish a scheme whereby surp~used 8 employees attempt to find positions in their own ministry first, and then look for positions in other ministries. In counsel's submission, the surplus provisions establish the fundamental importance of one's home ministry, and the fact that members of the public service are employees of particular government ministries. Counsel cited a number of cases in support of his argument including Heginbottom 647/81 (Samuels) and Tsiang 1055/85 (Kirkwood). In counsel's view, the surplus provision of the collective agreement was specifically designed to assist employees similarly situated to Mr. Cain, but instead of going through the procedure outlined in that article, the employer had, in this particular case, done an end run around it, and this violated the collective agreement. If Mr. Cain had truly been on a developmental assignment, counsel argued, he would have returned to the Oxford Regional Centre at the end of the assignment, and then he would later have been declared surplus. Then he would have looked for another position within his ministry, and if he had failed to find one he could have then looked for jobs in other ministries including Correctional Services. This, counsel submitted, is what should have happened in the instant case. In the alternative, counsel submitted, if Mr. Cain's assignment was not a legitimate developmental assignment, then it should have been posted at the Detention Centre as a vacancy. In either case, counsel argued, the collective agreement had been infringed, and so the grievance should be allowed. Employer Argument Employer counsel began her submissions by objecting to the union changing the grounds of its grievance at the hearing. Counsel' pointed out that the grievance alleges a violation of Article 4 of the collective agreement, while union counsel, in his submissions, alleged an improper developmental assignment, as well as a violation of Article 24. Counsel argued that this, in and of itself, was improper, and that in any event, there had been no violation of any collective agreement provision. Counsel pointed out that the collective agreement explicitly contemplates developmental assignments, and the one in issue in the instant case had been entered into with the signed approval of the acting 0PSEU local president. , Turning' to the substance of the matter in dispute, counsel conceded that it was true enough that Mr. Cain continued to be nominally paid by the Ministry of Community and Social Services while he was on his developmental assignment, but argued that this was for administrative convenience only, and that in every other respect, Mr. Cain was treated as if he was an employee of the Detention Centre. While he retained his prior salary while on the developmental assignment, counsel argued that the salary protection provision was there to do just that: protect employees from losing wages if they choose to take a developmental assignment, and nothing more could be construed from the fact that he was paid at his previous salary. Counsel argued that there was no violation of Article 4 in this case. A vacancy arose, it was posted, and it was filled in accordance with the provisions of that article. Counsel argued that Mr. Cain fell within the area of search, as contemplated by the employer, and she noted that it is an 10 exclusive management function, and one recognized by the union, to determine the area of search. Counsel referred the Board to both the posting and to the Ministry's practice of allowing persons similarly placed to Mr. Cain to apply for positions that arise during their placements. Very simply, the Ministry has a policy, which it has consistently applied, of treating government employees temporarily assigned to correctional institutions as employees for job postings.' Counsel submitted that if the employer had not allowed Mr. Cain to apply for the position in issue, a grievance alleging breach of the collective agreement might properly have been filed given the past practice on point; Counsel argued that the surplus provisions of the collective agreement were not relevant in the instant case given the fact that Mr. Cain was not a surplus employee at the time the competition arose. In conclusion, counsel submitted that the :employer's interpretation of the area of search, as informed by its past practice, should be preferred to that of the union, and she pointed out that Mr. Cain was, at the time he applied for the position, virtually indistinguishable from every other employee working at the Detention Centre. Counsel' cited a number of cases dealing with the employer's legal right to restrict the area of search including Patrick 70Z/90 (Simmons), Carson/French 582/89 (Kirkwood) and Hayford 1189/88 (Dissanayake). Counsel pointed out that the employer, if it had wished, could have restricted the area of search in the instant case to specifically exclude Mr. Cain. it chose not to, and in counsel's view, the evidence indicated that the area of search was drawn so that persons like Mr. Cain could apply for the posted position. Counsel provided the Board with a dictionary definition of the word "staff," which defined that term as a ."group of persons carrying on work under manager, etc.". In counsel's submission, Mr. Cain clearly fell within that definition. Incumbent's Argument Mr. Cain made several submissions on his own behalf. He argued that he had done nothing wrong, and that he had fulfilled all of the provisions of the developmental assignment. He advised the Board that his old job at the Oxford Regional Centre had been dectared surplus, and that if he lost his position as a Correctional Officer he would be in serious trouble given the fact that he was the sole provider of his family of four, which included a two year-old and a baby of seven weeks. He also told the Board that he was a good Correctional Officer and that he felt that he was doing a good job in that position. Union Reply In reply, union counsel argued that the GSB had broad remedial powers, and that it was incumbent upon the Board to resolve the matter in issue between the parties. In counsel's view, the evidence indicated that Cain's developmental assignment was not a real developmental assignment, but was instead designed to circumvent the collective agreement. Counsel . argued that there was no evidence before the Board of what the acting local union president understood when he signed the developmental assignment agreement, and that the MiniStry of Correctional Services policy with respect to area of.search was not part of the collective agreement' and so could not be relied upon by either the employer or the Board. Union counsel agreed that Mr. Cain had acted properly, and recognized that he was in a terrible predicament. Counsel suggested that if Mr. Cain had completed his developmental assignment and returned to his former job, it was quite likely and possible that he would have been put into the position he currently occupies by virtue of the surplus provisions of the collective agreement. Counsel noted that there are unclassified employees working at the Detention Centre, and submitted that their interests have been adversely affected by Mr. Cain being allowed to apply for the posted position. In counsel's submission, the collective agreement has been violated, and he urged the Board to make a finding to that effect. Decision Having carefully considered the evidence and arguments of the parties and of Mr. Cain, we have come to the conclusion that this grievance must be dismissed. On the evidence before us there has been no violation of any term of the collective agreement. Mr. Cain entered into a developmental assignment at the Detention Centre with the approval of the Oxford Regional Centre, the Detention Centre and his local union. The developmental assignment agreement specifically indicates that while at the Detention Centre, Mr. Cain would occupy the "position" of "correctional officer." Had the union wished to allege otherwise, it was within its power to call the acting local union president who signed the developmental assignment agreement to testify to that effect. Mr. Cain did occupy the position of correctional officer, and he was by virtue of that fact alone entitled to apply for the full-time vacancy that arose. His case, however, is even stronger than that. We find, on the evidence and argument before us, that Mr. Cain was a classified employee and member of the staff of the Detention Centre at the time the posting arose. This finding too, entities him to apply for the position at issue. In every important respect, Mr. Cain was indistinguishable from every other Correctional Officer working at the Detention Centre. Moreover, we find, on the evidence and argument before us, that the employer intended, in drafting the scope of the search, to include persons on a developmental assignment, and its 'policy to that effect provides proof of this. Indeed, had the employer not allowed Mr. Cain to apply for the position, we would have found on the facts of this case that it had violated Article 4 of the collective agreement. Accordingly, and for the foregoing reasons, the union grievance, is dismissed. DATED at Toronto this lst~ day of February 1993. William Kaplan Vice-Chairperson " I Dissent " (Dissent attached) {. Thomson Member M. O'Toole Member 2704/91 (Union Grievance) and the Crown in Right of Ontario Ministry of Correctional Services Dissent The whole issue here is, is a person wh° has been seconded on a Developmental Assignment to a different Ministry allowed to participate in a Job Competition at his place of secondment to the detriment of classified and unclassified staff at the location and subsequently be placed in that position? The majority in this award say "yeS', and I strongly disagree and dissent from the Award. The facts are fairly set out in the Award. The incumbent, David Cain, was an'employee of the Oxford Regional Centre as a Residential Counsellor. He had 17 years with this Ministry and no evidence was adduced to show if he was in imminent danger of lay off. Exhibit 2C dated June 30/92 stated 21 employees would be laid off by September/92 but we don't know if Mr. Cain would have been included in the 21. - 2 - GSB File No.2407/91 While the O.R.C. is being downsized and the staff was being reduced proportionately, however at the time of the event Cain was not a surplus employee under Article 24 of the Collective Agreement.' This article grants an employee declared surplus additional rights to jobs in other Ministries without entering job competitions. It in fact gives him preference over other classified and unclassified employees in securing the job. Mr. Cain passed a test held at ORC which made him eligible to be considered for employment with the Ministry of Correctional Services. He then proposed that a secondment take place so he would be hired full time. This was. agreed to by all parties concerned except the Local Union at E.M. Jail. The Award takes issue with why the Acting Local Union President at O.R.C. was not called to testify since he also signed the secondment. I don't think anything should be taken from him not testifying. He simply signed a 6 month secondment for Developmental Training at E.M. We have no eVidence from him or - 4 - GSB File NO.2407/91 I sympathize with Mr. Cain's position but it is not right to use a DA to allow him to compete. The job competition should be re-posted and the incumbent Cain should not be able to compete in this competition until such time as he is declared a.surplus employee when it will not be necessary for him to compete.