HomeMy WebLinkAbout1991-2934.Lobraico.93-10-07~' ~'"' : ' ' ' · ':~ONTARIO EMPLOYES DE LA COURONNE
· · ' CROWN EMPLOYEES DE L'ON TARIO
'--'- GRIEVANCE C,OMMiSSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
'};~0 DUNDAS STREET wEST S~/TE
lEO, ROE DUNDAS OCIE..qT, BUREAU 2100. TORONTO (ONTARIOJ. M50 IZ8 FAC.SI2.41LE.'TC~L~:COPtE· {4 ~6,~ f126-~39E,
·2934/91
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Lobraico)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health)
Employer
BEFORE: M. Gorsky Vice-Chairperson T. Browes-Bugden Member
F. Collict .. Member
FOR THE M. Doy1e
UNION Counsel
Ryder, whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE D.. Jarvis
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
HEARING September 3, ~992
January. 20, 1993
1
INTERIM DECISION
A0 Backqround
The Grievor, William C. Lobraico, whose date of hire with the
Employer was May of 1987, and whose position title and
classification at the time of the grievance were, respectively,
Nursing Homes Accountin~ Clerk and OAG 8, filed a 9rievance on
December 20, i991 (Exhibit 3) in which he claimed that:
Management (see attached list) have violated my rights
under art 24 of the collective agreement - job security.
The list attached to the grievance included the names of 1.2
persons from the "Public Health", "Human Resources", "Corporate
Accounting" and "Assistive Devices" Branches of the Ministry. The
list from "Public Health" showed the names:
- Dr. Richard Schabas, identified as the Director
- Ms. Catherine Rand, identified as a manager
- Mr. Terry Jamieson, identified as a manager
- Mrs. Sheila Fitzgerald, identified as one of the
Grievor's supervisors
- Dr. Roch Khazen, identified as the Grievor's
supervisor between April and July of 1990.
Under "Human Resources," the following names were listed
- Mrs Leanne Yarrow
- Ms. Patricia Johns
- Ms. Janet Geisberger
Under "CorpOrate Accounting," the following appear:
- Mr. Brian Kimberley, identified as~·th~ Director of
Finance and Accounting Branch
- Mr. Ed Jansen, identified as the Assistant Director
of the Finance and Accounting Branch
- Ms. Barbara Harmer, identified as the Manager of
Operations Services.
Under "Assistive Devices "was the name Ms. Rhoda Lawder, who
was identified as the person who had interviewed the Grievor.
The grievance followed an exchange of correspondence between·
the Grievor and Ms. Harmer. On December 12, 1991, the Grievor sent
a memorandum (Exhibit 1) to Ms. Harmer, shown as the Manager,
Operational ser~ides, Corporate Accounting Section, under 'the
heading "Grievance":
It has now been confirmed to me that management has
violated my rights under the job security provisions of
the collective agreement. Please reply in writing within
(7) seven days.
By·letter dated December 19, 1991 (Exhibit 2), Ms. Harmer
responded to the above quoted memo, as follows:
I wish to acknowledge receipt Of the above memo regarding
your Grievance.
As you know you were assigned to the position of Nursing
Home Accounts Clerk, Operational. Services, on March 25,
1991. The Finance and Accounting Branch did not know at
that time that the position complement would be reduced
a~ discussions to change the Nursing Home payment process
had not begun.
Your assignment to Corporate Accounting was done in good
faith, by all concerned.
By letter dated January 6, 1992 from MS. Harmer to Mr.
Lobraico (Exhibit 4), Ms. Harmer made the following stage 1
response:
I wish ~to acknowledge receipt of the above as step 1 of
the grievance process.
As you are already aware in my letter to you on December
19, 1991 in response to your memo dated December 12,
i99i, that at the time of assignment to the position of'
Nursing Home Accounts Clerk, Operational Services, on
March 25, 1991, we were not aware at that time that this
position complement would be reduced, as discussions to
change the Nursing Home payment process had not begun.
I must reiterate again, your assignment to Corporate
Accounting was done in good faith by all concerned.
By an amended grievance (Exhibit 5),. dated February 26', 1992~
said to have been "verbally amended on February 26, 1992," the
Grievor made the following statement of grievance:
Management (see attachment to original) have violated
rights under Article 24, Article 27 and Article 18 of the
Collective Agreement.
Under settlement desired the Grievor stated
Add to original - Documents identified by the Grievor
will be removed immediately from the grievor's corporate
file.
Added to the list of names, under the heading "Assistive
Devices Branch," were:
- Mr. Mark Cox
- Ms. Anne David
The stage two response of the Employer, dated March 4, 1992
(Exhibit 6), signed by B.A. Kimberley, Director of the Finance and
Accounting Branch, is as follows:
After careful review of the information provided at your
stage two meeting, I have determined that your assignment
to Corporate Accounting in March, 1991 occurred in good
faith.
I understand that you will provide additional written
information for inclusion with the grievance
documentation.
The Ministry is exploring the CAD training identified
during the meeting and is prepared to. consider al/ other
training initiatives that could lead to suitable OPS
employment.
The Miniatry and the Redeployment Unit are continuing to
work towards an appropriate placement under Article 24 of
the. Collective Agreement by exploring opportunities
within Health and with other Ministries,
In'conclusion, I must deny your grievance.
On March 17, 1992, the Grievor made a second amendment
(Exhibit 7) to his grievance, in which he stated:
Because of the attached response to my interview of
January 31, 1992, I have no option but to add the names
of the individuals involved as they have further violated
my rights under Article 24. of the c~llective agreement.
Therefore, please add the names of to the grievance dated
December 20, 1991:
1. Roseanne De Lio - HRB
2. Catherine Frank - Comm & Inform.
3. Florence Roach - Comm & Inform
to the grievance dated Dec. 20/91~
5
By letter dated March 19, 1992 from Ms. Geisberger, Personnel
Officer, Overlea Regional Personnel Office, Mr. Lobraico was
advised that the Employer had received his grievance dated March
17, 1992, in which letter he was informed that the grievance was
being combined with the December~ 20 grievance "as per your
request." (Exhibit 8)
Prior to the commencement of the first day of the hearing
scheduled for September 3, 1992, counsel for the Employer sent a
letter to Ms. Joan Shirlow, the Registrar of the Grievance
Settlement Board, with copies to Ms. Doyle, counsel for the Union
and to Ms. Geisberger, raising a number of preliminary objections
to the arbitrability of the grievance (Exhibit 15):
We are the solicitors acting on behalf of the Ministry ,Df
Health in the above-noted matter, Please be advised that
at the GSB hearing scheduled for September 3, 1992, the
Ministry of Health will be raising the following
preliminary objections to the arbitrability of this
matter:
t. The grievance of W. Lobraico dated December
420, 1991 and amended by supplementary
grievances dated February 26 and March 17,
1992 do not raise an arbitrable dispute. The
grievances claim a violation of Article 24 and
seek by way of remedy placement in a "secureLy
funded posit'ion." However, since December
1990 when Mr. Lobraico was first declared
~surplus under Article 24, Mr. Lobraico has
continued to receive full salary and benefits
without any interruption ~f employment in the
classified service. Accordingly, there is no
arbitrable or real dispute and the settlement
sought by the grievor has been satisfied in
any event.
2. The grievances raised by Mr. Lobraico are
trivial, frivolous and/or vexatious. The
original grievance plus its amendments alleqe
that a total of 'seventeen persons ha~e
participated in the denial of Mr. Lobraicb's
rights under Article 24 of the Collective
Agreement, In addition, the grievances are so
lacking ~ in particularity ·as to be entirely
meaningless. Accordingly, the Grievance
Settlement Board should exercise its inherent
discretion to dismiss the grievances.~
3. The grievance of December 20, 199]. and its
amendments have not been filed in a timely
manner pursuant to Article 27.2.1 of the
Collective Agreement. The grievance appears
to relate to Mr. Lobraico's placement in the
position of Nursing Home Accounts Clerk in the
Finance and Accounting Branch in March 1991
due to ·his becoming surplus in the Public
Health Branch in December 1990. However, the
grievance ~s dated December 1991 which is more
than 20 days from March 1991. .Accordingly,
the Grievance Settlement Board is without
jurisdiction to hear the merits of this
grievance or its supplementary amendments.
we also wish to advise the Grievance Settlement Board
that we will be seeking a ruling on our preliminary
objections prior to the grievances being heard on their
merits.
Exhibit 15 referred to ~the Grievor having been first declared
surplus in December of 1990. This. was done by letter him dated
December 4, 1990, from Richard Schabas, M.D., Director, Public
Health Branch and Chief Medical officer of Health (Exhibit 9):
Recently~the role· of the Public Health Branch was changed
from individual case management to policy and
epidemiological analysis. This has resulted in: [sic]
the transfer of data entry functions from the Ministry to
Local Health Units; and~the elimination of the Vaccine
Distribution Service, and Milk Quality Control Program.
As a result of the material changes to the organization,·
the complement of the Information Resources Clerk
position has been reduced from eight to four, requiring
the dec laration of four incumbents as surplus to
requirements in accordance with Section 22(4) of the
Public Service Act.
7
Under the terms of Article 24 of the Cotlectiv~
Agreement, this letter will serve as confirmation of your
surplus status and placemeat on the corporate surplus
list effective December 5, 1990. Your date of lay-off
will be March 6, 1991.
Your Surplus Co-ordinator, will be Patricia Johns.
Please feel free to contact her at 965-2025 if you have
any questions.
we wish you every success in your future career
endeavours and thank you for your contribution to the
Public Health Branch.
By letter from Patricia Johns, Personnel Officer, Human
Resources Branch, Ministry of Health~ dated March 5, 1991, (Exhibit
10) Mr. Lobraico was informed that his lay-off da~e from the
Ontario Public Service would be extended from March 6, 1991 to
March 20, 1991:
This letter will serve as written confirmation that your
lay-off date from the Ontario Public Service will be
extended from March 6, 1991 to March 20, 1991. This
extension will allow additional time to place you in a
suitable vacancy under Articles 24.2.2 and 24,2.3 of the
Collective Agreement, or to arrange for a displacement
under Article 24.6.1 of the Collective Agreement.
As discussed, effective March 7, 1991 you are no longer
an employee of the Public Health Branch and all personal
belongings are to removed from the premises. As of this
date, you should have no reason to be anywhere near the
Branch work location. However, since you will remain on
the Branch payroll for the period of this extension, you
are expected to be available by telephone during working
hours should we need to contact you. If, for whatever
reason, you are not available by telephone, you are
expected to contact the undersigned on a regular basis
(twice per week) to determine if there have been any
d~velopme~ts with respect to your placement. It is hoped
that you will use this additional period of time for
interview preparation and job search purposes.
Thank you for your cooperation with this matter.
By letter dated March 20, 1991 from R. Oss, Director HumAn
Resources Branch, Ministry of Health Exhibit 11), Mr. Lobraico was
advised that he was being assigned to the position Of Nursing Homes
Accounting Clerk (which is classified as office Administration 8)
with the Ministry of Hea·tth, Finance and Accounting Branch. The
letter is as follows:
I am pleased to advise you that, in accordance with
Article 24.2.1 of the Collective Agreement, you are
assigned to the position of Nursing Homes Accounting
Clerk (Office Administration 8) with the Ministry of
Health, Finance and Accounting Branch.
Please sign below indicating whether or not you accept
the assignment.
I must inform you that failure to accept an assignment
will result in the application of Article 24.4: "An
employee who does not attend a placement interview when
requested by the employer or who does not accept an
assignment in accordance with sub-sections 24.2.1 or
24.2.3 shall be laid off and the provisions of.Sections
24.5, 24.6 and 24.10 shall not apply".
The scheduled starting date for your assignment is March
25, 1991. Please report at 8:15 a.m. to Mrs. Barbara
Harmer.
Please contact the above if necessary, to obtain further
information concerning the arrangements for your first
day at work.
On behalf of the Ministry of Health, I would like to
thank you for your service to date and wish you every
success in your new job.
At the bottom of the letter, there is a signature indicating that
the Grievor had accepted the assignment.
9
By letter dated January 2, 1992 (Exhibit 12), from B.A.
Kimberley, Director, Finance and Accounting Branch, Ministry of
Health, the Grievor was advised:
As discussed recently, the introduction of the cash flow
or equalized payment method for the Extended Care Program
will lead to organizational changes in the Nursing Home
Accounts unit. The staffing requirements for the unit
will be reduced by'5 positions in 1992.
Under Article 24.11 of the collective agreement and
section 22.(4) of the Public Service Act, you are given
notice that your position will be abolished as of March
31, 1992.
In our meeting on December t0th, in the presence of your
local OPSEU president, the staff affected by this change
were advised that they will be reassigned into a position
with the Ministry of Health, as soon as possible, in
accordance with entitlements under Article 24 of the
Collective Agreement. Also as indicated, arrangements
will be made with you to complete an Employee Profile to
assist in these reassignments.
Once all profiles have been completed and upon
consideration oi all other factors, you will be advised
of your specific reassignment. I assure you that you
will be given training and' orientation as necessary to
ensure success in. your new position
By letter (Exhibit 13) dated March 5, 1992 to the Grievor,
from Ms. Geisberger, he was advised:
The revision of Article 24 in the Collective Agreement,
which become effective January 1, 1992, requires
Management to provide sis (6) months notice to an
employee who is declared surplus.
Accordingly this will confirm that your layoff date has
been revised to July 2, 1992.
On May 26, 1992, Renate Krakauer, Director, Human Resources
Branch of the Ministry of Labour, wrote to the Grievor (Exhibit 14)
as follows:
I am pleased to advise you that, in accordance wit'h
Article 24.2.1 of the Collective Agreement, you ~'re
assigned to the position of Group Leader Client
Information {Office Administration.8) with the Ministry
of Health, Assistive Devices Branch.
Please sign below indicating whether or not you accept
the assignment.
I must inform you that failure to accept an assignment
wilt result in the application of Article 24.4: "An
employee ~ho does not attend a placement interview when
requested by the employer or does not accept an
assignment in accordance with sub-section 24.2.1 or
24.2.3 shall be laid off and the provisions of Sections
24.5, 24.6 and 24.10 shall not apply".
The scheduled startin9 date for your assignment is
June 22, 1992, as you requested ....
At the foot of the letter there is a signature indicating that the
Grievor had accepted the assignment referred to.
There'were certain statements made by counsel for the Employer
relating to the factual background in this matter which were not in
dispute:
1. The position of Nursing Homes Accounting Clerk, to which the
Grievor was assigned on March 20~ 1991, .appeared as a vacancy in
the Corporate Surplus List (also called the Displacement List)
maintained by the Ministry to identify Dosi~i~ns for the purpose of
the implementation of art. 24. The Grievor was qualified for this
position.
2. In March of 1991, representatives ofthe Human Resources
Department of the Ministry of Health approached management in the
11
Finance and Accounting Branch concerning the above vacancy. Thr4~e
identical vacancies for the position appeared on the Corpora're
Surplus List, and the assignment of the Grievor to the position
would result in his classification and rate of pay being the same.
There was,however, a problem arising out of the fact that the
positions shown as being available were unfunded in the Finance and
Accounting Branch budget. Negotiations took place between
representatives of the Public Health Branch and the Finance and
Accounting Branch and an offer was made by the Director of the
Public Health Branch to fund one of the vacant positions for a
period of a year.
3. The initial response of the Finance and Accounting Branch was
favourable, however, it added a condition that if at the end of a
year the position was still unfunded the Grievor would have to be
returned to the Public Health Branch. This created a difficulty
because no vacancy existed in that Branch as a result of the
Grievor having been declared surplus.
4. The matter was then referred to the Assistant Deputy Minister
of the Minist~of Health. ~
5. At no~ time during the negotiations between the Public Health
and Finance and Accounting branches was there a question as, to the
Nursing Home Accounting Clerk positions being declared surplus in
the future. Reference was with respect to the three vacant
positions shown "on the books" of the Financial and Administration
Branch. As matters stood at that time, the Public Health Branch
was prepared ~o fund a Nursing Homes Accounting Clerk position for
the Grievor with the Finance and Accounting Branch for a period.of
one year, with the obligation to fund the position thereafter being
with the Finance and Accounting Branch. When the Grievor con~enced
his work as a Nursing Homes Accounting Clerk with the Finance and
Accounting Branch in March of 1991, the question of the future
funding of the position was "set aside."
'6. The Grievor commenced his work in the position of Nursing Home
Accounts Clerk in the Finance and Accounting Branch in March 6f
1991 but was informed, in'December of 1991, that he was again being
declared surplus and this was confirmed by E.xhibit 12 dated January
2, 1992.
7. Of the three Nursing Homes Accounting Clerks affected by the
organizational changes referred to in Exhibit 12, the Grievor was
the most junior and it was for this reason that the Employer
declared him to be surplus pursuant to the provisions of art. 24.of
the collective agreement. ~The organizational changes referred to
in Exhibit '1~ did not affect the amount of funding received by
nursing homes~but only'the manner in which monies were received by
them. Included in the changes was the transfer t0 the nursing
homes of certain additional bookkeeping functions with respect to
'the calculation of the amounts to be received by them. The changes
13
commenced toward the end of August 1991 after the Grievor had be~n
placed in the Nursing Homes Accounting Clerk position in March of
1991.
8. The change in the accounting procedures followed a request
being made by Ms. Kimberley of Ms. Harmer, the Manager of
Operational Services, to review a position paper which dealt with
the new cash flow methodology and to prepare a feasibility study
that was to include an assessment of staffing implications. It was
as a. result of this review that a decision'was made to implement
the chanqes. Throughout the fall of 1991 negotiations took place
between representatives of the Ministry of Health and the Ontario
Nursing Homes Association, the result being an agreement to the
change in the accounting process, to be implemented on January 2,
1992. Once it became known that the changes would be implemented,
'there was a need to eliminate five positions in the Finance and
Accounting Branch.
9. A meeting took place on December 10, 1991 to announce the
elimination of the five positions effective January 2, 1992. The
effective date was chosen to allow employees to have the benefit .Df
the new job security provisions found in the collective agreement.
This was adverted to in Exhibit 13 which extended the layoff date
to July 2, 1992.
14
10. As noted in Exhibit 14, prior to the July 2, 1992 layoff da~e
a new position Of Group Leader Client Informatioa was found for the
Grievor in the Assistive Devices Branch of the Ministry, with his
classification, pay, benefits and service remaining unchanged.
Counsel for the Union, in responding to the submissions of
counsel for the Employer, referred to some additional facts that
. ..... she wished the Board to consider:
1. When the Grievo~ commenced his employment as a Statistical
Reporting Clerk in the Public Health Branch~ there were two types
of jobs in the department where he worked:, one half'of the
employees were Information Clerks, and the other half, including
the Grievor, were Statistical Reporting Clerks. ,~ -
2. In the winter of 1989-90, a new computer program was
introduced into the department which resulted in changes to the
duties of both groups of employees.
3. The Grievor was required to perform different duties in
January of 1990, and he then.~quested a job description which was
not produced until July of 1990, He objected to the position
description which he-felt did .not properly describe his duties and
responsibilities.
15
4. Commencing in April of 1990, the Grievor was given a series 6f
temporary assignments in his department working on a variety of
kinds of reports.
5. On or about November 2, 1990, the Grievor was given oral
notice that he would be laid-off.
6. On November ll, 1990, the Grievor received a letter of
discipline in which he was suspended for allegedly inappropriate
and aggressive behaviour, which grievance was settled.
7. During January and February of 1991, the Grievor continued to
report to the same office and work location in the Public Health
Branch where he had carried on duties previous]y, but was assigned
no duties as a Statistical. Reporting Clerk or any other duties, and
was instructed to spend his time carrying out' a job search.
8. On February 5, 1991, the Grievor received a further letter of
discipline alleging that he was guilty of inappropriate behaviour
and that his attitude was also inappropriate.
9. During January and February of 1991, the 'Grievor identified
and attempted to secure a number of positions that he felt
qualified to perform, one of them being as a Finance Clerk in tlhe
Public Health Branch. He was unsuccessful in obtaining any of the
positions identified by him.
16
10. The Grievor 'had been informed that the last mentioned posit, i6n
was going to be filled by competition. However the competition was
cancelled and a day later it was filled without a competition.
11. During the Grievor's employment in the Finance and Accounting
Branch as a Nursing Homes Accounting Clerk, he heard rumours that
he was not'on the payroll of tha~ Branch but was on the payroll of
the Public Health Branch.
12. Around April of 1991, the Grievor approached his supervisor,
Barbara Harmer, concerning the funding of his then position and was
advised that "there were'no problems in that area°"
13. After receiving a notice of layoff from his position in the
Finance and Accounting Branch, the Grievor, in January, February
and March of 1992, attempted to %dentify a~ position that he felt
qualified to'fill and made attempts to'obtain such a position,
however, he was unsuccessful in doing so.
14. One of the positions identified by him du~ing that time was in
the Communication Br~Dch of the Ministry of Health, being that of
Distributions Coordinator. He attended an interview for the latter
position and subsequent to the interview received a letter, on
March 2, 1992, dated February 26, 1992, indicating that he would
not be assigned-to that position~ The three persons listed in the
second amendment to the grievance of December 20, 1992: Ms. DeLio,
17
Ms. Frank and Ms. Roach, were the persons on the interview pane~[%
The Grievor took exception to the characterization of the interview
as having been conducted in a "hostile environment," as referred to
in the letter of February 26, 1992 informing him that he would not
be appointed to the position.
15. The Grievor was upset because of the characterization of the
interview in the letter of February 26, 1992, and requested that
any future interviews that he attended with respect to a position
sought by him would be conducted with Union representation. In the
alternative, he asked for permission to record the interview on
tape.
16. Counsel for the Union stated that by letter dated January 23,
1992, after an interview had been set-up for the Grievor with
respect to a Financial Clerk position in the Assistive Devices
Branch of the Ministry, he was notified that the interview w.as
being cancelled because the position was not going to be filled .at
that time on a full-time basis.
17. The Grievor's requests for Union accompaniment occurred as
early as January 1992, however, his requests were denie~.
Subsequent to the receipt of the letter of February 26, 1992, the
request was reiterated.
18. Counsel for the Union informed the Board of the Grievor's wi~h
to have her note his position that a Financial Clerk position.in
the Assistive Devices Branch was identified by him two weeks after
he was placed in the position of Group Leader, Client Information
Servicers, in that Branch on June 22 of 1992, and i~terviews
commenced to fill that position. This statement was made in
relation to the fact that an interview had been set-up for him for
a position of Financial C]srk in the. Assistive Devices Branch that
had been Cancelled by the Employer by the letter dated January 23,
1992, and that the Grievor had been advised that the reason for
doing so was because of the current financial environment, planned
changes to the program, resignations and illnesses.
19. Portions of art. 24~ entitled "job security" referred to by
counsel for the Grievor were art. 24.1 and ar~. 24.2.1 which are as
follows:
24.1 Where a lay-off may occur by reason of a shortage
of Work or funds or the abolition of a position or
other' material change in organization, the
identification of a surplus employee in an
administrative district or unit, institution or
other such work area and the subsequent assignment,
displacement or lay-off shall be in accordance with
seniority subject to the conditions set out in this
Article.
24.2.1 Where an emPloyee is identified as surplus be shall
be assigned on the basis 'of his seniority to a
vacancy in .his ministry within a forty
kilometre radius of his headquarters provided he is
qualified to perform the work and the salary
maximum of the vacancy is not greater than three
percent (3%) above nor twenty percent (20%) below
the maximum salary of his classification as
follows:
19
- a vacancy which is the same class or positi6n
as the employee's class or position;
- a vacancy in a class or position in which the
employee has served during his current term of
continuous service; or
- another vacancy.
20. It was the position of counsel for the Union that the Grievor
was entitled to be assigned to a properly funded vacant position
pursuant to art. 24.2.1, and that the Nursing Homes Accounting
Clerk position was not so funded. It was also the position of
counsel for the union that after the position of Nursing Homes
Accounting Clerk had been declared surplus, as a result of the
actions of the Employer, the Grievor was denied a proper assignment
to the Financial Clerk position in the Assistive Devices Branch.
21. It was the further position taken on behalf of the Grievor,
that the positions identified by him were the ones that he was
entitled to be assigned to under the provisions of art. 24.2.1.
22. It was the further position taken on behalf of the Grievor,
that but for the actions of the Employer, above described, which
were said to be in contravention of art. 24.2.1 of the collective
agreement, he would have been appointed to the positions identified
by him: Financial Clerk in the Public Health Branch or Financial
Clerk in the Assistive Devices Branch. We were asked to find the
assignment of the Grievor on, March 1, 1991, to the Nursing Homes
Accounting Clerk position, to be invalid and contraryu to his right's i
uaOor art, 24.2.1o We were asked to order the Employer to make a
propor assignment to the Grievor of the above noted positions ±n
the alternat/_ve.
Argument on Behalf of the Employer With Respect to Its First
Preliminary Objection
(a) That the Matter is Moot, There Being No Real Dispute.Before
the Board
Counsel for the Employer argued:
i. The purpose of art. 24 was to establish rights and procedures
concerning employees who had been declared surplus so 'as to
relocate them, as soon as possible, without loss of employment
before the effective layoff~date. Here, the Grievor was declared
surplus on December 4, 1990, with~a layoff date of November' 21,
1991. The Employer was able to reassign the Grievor to a position
.within the same building where he worked without any change in
classification, seniority, wages or benefits. Accordingly, there
was no basis for claiming a violation of the collective agreement.
It was further submitted that to proceed on the merits would
represent a "waste of time."
2. If there was a technical violation of art. 24, which was not
admitted, the Grievor was placed in a permitted position after his
having been declared surplus. Accordingly, at most, the Board's
order would be declaratory. We were asked to weigh the competing
interests of the Grievor against the costs of a lengthy and, what
was said to be, unnecessary proceeding.
That the Settlement Souqht in the Grievance Had Been
ImDlemented
Counsel for the Employer argued:
1. The Grievor had been placed in a securely funded position in
March of 1991, when he was assigned to the Nursing Homes Accounting
Clerk position, and it was further submitted that he is in a
securely funded position today as a Group Leader, Client
Information Services, Assistive Devices Branch. The lattter
position was said to be "as securely funded as any position."
Furthermore, "the Grievor had not been guaranteed a job for life
under the collective agreement."
2. Counsel relied upon Gr~nt, 3097/90 ~(Emrich), where the Board,
at p.1, "declined to exercise its jurisdiction to hear the merits
of the grievance" because of its "conclusion at the hearing that
the grievor had received the redress sought in her grievance." Her
grievance was filed on January 25, 1991, and the Board found that
she had received the redress sought by her "as early as mid-
February,. 1991" and concluded that "the issues raised by the
.grievance were rendered moot."
What-~he grievor in the Grant case was complaining about was
the employer's having placed (at p.1), "... certain restrictions as
to the type of work she would be allowed to perform and [the
· imposition of] certain conditions in respect to the nature of her
supervision. ..."
The restrictions placed on the grievor in Grant are referred
to at p.4 of the decision:
... the grievor was not allowed any direct contact with
clients drawn from the inmate population of the facility;
the grievor was not allowed to open or read client files;
and the grievor was not allowed to conduct research
involving human subjects.
The position position of the Union, in Grant, 'was that it
wished:
... a declaration that Article A-1 of the collective
agreement ha~ been breached from early January to mid-
February 1991 because the grievor had not been allowed to
perform the usual range of duties of he~ position fo~
approximately a month, despite medical certification that
she was able to do so. Furtherm0re it was contended that
the grievor had been treated without dignity and 'in a
discriminatory fashion by the imposition of unreasonable
restrictions on the nature of her work and an
unreasonable and discriminatory condition in respect to
the manner of her supervision. In addition to such
declaration, the grievor sought a written apology from
mama~eme~t be placed on her file ....
23
Counsel for the Employer, in the case before us, relied on
statement of the Board in Grant, at p.8:
... the grievor has been working free of any
objectionable restrictions or conditions for nine months
at the time of the hearing. At most, if a declaration
were to issue~ it would only pertain to a very short time
frame from early January until mid-February when the
grievor was allowed %o resume the full range .of her
duties.
The Board concluded, at p.ll:
There are certainly complex and important issues involved
if the merits of the parties' arguments were canvassed.
However, we must weigh the benefit of a decision on the
points of law in a context which has rendered the matter
of more academic interest than practical significance,
against the real.costs of five days of hearings scheduled
for this case. The Board concluded that the costs
outweighed the beaefits as the matter is essentially
moot .... The issues raised in this case are certainly
important but should be fully canvassed in different
circumstances when the relief sought has not been
provided already.
3. Counsel for the Employer also referred to Ronkai, 320/88
(Knopf). In'that case the grievor alleged a violation of art. 27.1
of the collective agreement which provides:
It is the intent of this Agreement to adjust as quic~:ly
as possible any complaints or differences between the
parties arising from the interpretation, application,
administration or alleged contravention of this
Agreement, including any ~lestion as to whether a matter
is arbitrable.
At the outset of the hearing, in Ronkai, the employer raised
a preliminary objection as to arbitrability on the grounds that
art. ~7.1 was merely a statement of intention but did not create
any substantive rights. Counsel observed, at p.2, that nowhere in
the Crown Employees Collective ~argaining Act or in the collective
agreement was there any raquirement that a party advise the other
party of any position regarding jurisdiction of a grievance, which
obligation was alleged to .exist by the union. The.Board concluded,
at pp.3-4, that art. 27.1 did not create any ' substantive
obligations upon the parties and, Specifically, does not create an
obligation on the parties to state any positions at any stages of
the grievance procedure. Accordingly, the Board agreed with the
employer that the 9r~evance did "not disclose any matter which
falls within the '.interpretation, application, administrationL~0r
alleged contravention of the agreement," the p~eliminary 'objection
was uphetdr and the grievance was dismissed.
Further at p,4, the Board concluded:
On the basis of the submissions put to us by the grievor
and his counsel as stated above, we. have no hesitation in
concluding that even if everything the grievor alleged
could be proven, he would not succeed in achieving any
remedy. We say this because he would not be able to
establish that any acts of management objectively
prejudiced him in any meaningful way. The only prejudice
he claims to have suffered is delay. But there is no
suggestion that any ~passage of time has affected his
ability to pursue remedies elsewhere.
C. Response of the Union to the First Objection of the Employer
Counsel for ~he Union argued:
25
1. There was an arbitrable and real dispute to be adjudicated
upon, and that the settlement sought by the Grievor had not been
satisfied by the Employer's actions.
2. The Grievor had been placed in an invalid vacancy not within
the meaning of art. 24.2.1, as a result of which he was not
considered for vacancies that were within the meaning of that
article.
3. By placing the Grievor in the Nursing Homes Accounting Clerk
position, the Employer evaded its responsibility to place him in
the Financial Clerk position in the Public Health Branch. It was
further submitted that after the Grievor was declared surplus' in
the position of Nursing Homes Accounting Clerk, he was improperly
denied appointment to the Financial Clerk position in the Assistive
Devices Branch.
4. In responding to the Employer's reliance on the ~onkai case,
counsel referred to p.4, where the Board stated that the grievor
could not succeed in achieving any remedy even if the facts alleged
could be proven because: "... he would not be able to establish
that any acts of management objectively prejudiced him in any
meaningful way. The only prejudice he claims to have suffered is
delay." Counsel argued that in the case before us the Grievor did
suffer prejudice because he 'was assigned to a position not within
the meaning of art. 24.2.1
.D. Additional Objection to ~rbitrabitity
On the second day of hearing (January 20, 1993), in the course
of responding to the Union's submissions with respect to the
preliminary objections, counsel for the Employer raised, without
objection, What he referred to as a fourth preliminary objection.
He reviewed the history of the grievance, as above set out, and
focused on two i~sues~ which he identified as:
a) Does article 24, and in particular art. 24o2·,1, require that
a "vacancy" to which an employee "identified as surplus" is to be
assigned pursuant to art 24 2 1 be "properly fundea . and
b) Is~ there any scope within art. 24 for an employee being able
to choose-a' vacancy and, in effect, direct the employer to assign
him/her to that vacant position?
2. Counsel conducted a detailed analysis of the previous
provisions of art. 24 and those found in the current· collective
agreement. He noted, that the provisions of the, old collective
agreement covered the first designation of the~Grievor as surplus
in December of 1990, and that the current collective agreement
might "coincide" with the period when the Grievor was declared
surplus for a second time on January 2, 199'2. Counsel pointed out
that there was no material difference between the old and the new
provisions for the purposes of this gr~ievance.
27
3. Counsel reviewed the provisions of the current and previc, us
collective agreements found in art. 24, and examined the five steps
identified in the article.
4. Counsel referred to art. 24.4:
An employee who does not attend a placement interview
when requested by the Employer or who does not accept an
assignment in accordance with sub-sections 24.2.1 or
24.2.3 shall be laid off and the provisions of Sections
24.5, 24.6 and 24.10 shall not apply.
5. Art. 24.5 provides:
Where an employee has net been assigned to a vacancy in
accordance with sub-sections 24.2,1~ 24.2.2, 24.1.3 or
24.2.4, he shall be subject to lay-off in accordance with
the followin~ applicable sections.
6. Art. 24.6.1 commences:
An employee who has completed his probationary period and
who is subject to. lay-off as a surplus employee, shall
have the right to displace an employee who shall be
identified by the Employer in the following manner and
sequence:
7. Counsel argued that the case before us is concerned with the
application of articles 24.2.1, 24.2.2, 24.2.3 and 24.2.4.
8. Counsel submitted that unless the Grievor had complied with
arts. 24.2.1, 24.2.2, 24.2.3, 24.2.4, then art. 24,4 requires that
he/she be laid off and the provisions of arts. 24.5, 24.6 and 24.10
would not apply to him or her. This is what counsel for the
Employer stated ought to be applied to the Grievor, If the Grievor
did not accept an assignment in accordance with arts. 24,2.1 or
24.2.3, he would be properly laid off without recourse to the
articles referred to in art. 24.4. In brief, the position of
counsel for the Employer was that there were successive stages
which a Grievor had to pass through, and until the requirements of
a previous stage had been exhausted a grievor could not claim the
benefits of successive ones. In the case before this panel of the
Board, the Grievor could not claim displacement rights found in the
second stage of art. 24 until he had passed through the first
stage.
9. Counsel referrea to Read et al., 1548/89 aha 2015/89 (Gorsky;,
In the Re~ case, the Board noted, aG p.ll, that the grievors
interpreted art. 24 in a way that would not require them to "await
the c~nclusion of the assignment process" before "exercising their
rights under art. 24.6.1 to.displace junior employees."
10. Counsel referred to the statement of the Board found at p.19-
20 of the _Read decision:
Article 24 is .an unusual Article, ~hich is quite
different from similar provisions found in the private
sector which deal mainly with displacement rights of
senior employees. If it had been the intention of
parties to permit employees subject to Article 24.1 to
circumvent the assignment procedure, it would have been
a simple matter to say so. As it is, the parties have
drafted a job security provision which creates employee
rights which move through successive stages of
assignment, displacement or layoff. While I would not,
in the circumstances, find the acceptance of the
assignment by Ms. Van Luven as p~ecluding her arguing
that the assignment right and the displacement right are
not part of a scheme that must be followed; having
29
considered Article 24 in its entirety, I would agree with
Mr. Verity, although in a different factual context, that
the situation cannot be avoided given the present wording
of Article 24. I find that this Article does not permit
an employee to forego the process of assignment. Where
assignment is offered and refused the employee would be
subject to layoff without any rights under Article
24.6.1. The wording of Article 24 leads me to the same
conclusion as arrived at by Mr. Verity, although in a
different factual context. That is: "The only chonce
given to a surplus employee under Article 24 is to accept
an assignment or to face layoff ....
As Mr, Verity noted, although restricting his comments to
the process of assignment, there must be: " ... a degree
of order in sequence in view of the number of employees
involved in a major reorganization ... otherwise chaos
would be the end result." Not only employees have a
genuine concern over the subject of job security when
there is a material change in organization or the
abolition of a position. The Employer is concerned w~th
carrying out a reorganization in an orderly fashion. If
employees had a choice between assignment and
displacement rights, the situation for the Employer could
become truly chaotic. I am satisfied that if the parties
had decided to create alternative rights (either
assignment or displacement) in favour of employees
affected by Article 24.1, it would have been a simple
matter to say so. In drafting Article 24.1 as they did
the parties created a scheme that is much more consistent
with the establishment of a mandatory process moving from
assignment to disp)acement to layoff. I~ each case
subject to certain rights and subject to the penalty of
a loss of those rights where an employee does not accept
an assignment as provided for in Article 24.4.
The reference to the statement of Mr. Verity in the Read case, is
to Palangio, 227/83 (Verity), at p.8, and at p.18:
It would appear that Article 24 provides a certain
measure of job protection in the sense of guaranteeing a
job and the avoidance of a sudden lay~off, but doe~ not
provide classification protection. The purpose of the
Article generally is to provide employment stability and
salary stability on the basis of seniority. Assignment
of employees on a seniority basis means that the more
senior the employee, the earlier the assignment.
There is an aspect of the "luck of the draw" as is
patently evident on the facts of the instant Grievance.
Here, we find three other employees who~had identical
jobs to the Grievor and worked in-'the same office as the
Grievor did obtain better jobs than the Grievor,
However, that situation cannot be avoided under the
present wording of Article 24. The wording of that
Article does not permit an employee to shop around for
assignments. Simply stated, if an assignment is offered
and refused, the employee is then subject to lay-off.
The only choice given to a surplus employee under Article
24 is to accept an assignment or to face lay-off. The
assignment p~ovisions of surplus employees under that
Article is not ~esigned to provide an employee with a
preferred job, or a choice among jobs, or even the same
job.
11. Counsel also referred to Laurin, 1759/90 (Verity), where the
Board, at p.17, followed the rationale in the Rea_~d decision,
quoting from pages 19 and 20.
12. Accordingly, counsel noted that where the parties intended to
give a surplus employee a choice they did so explicitly, and
reference was made 'to art. 24.2.4. It was therefore submitted that
if an employee did not accept an assignment made under art. 24.2.1,
there was no room for the .introduction of other consequences, such
as giving the employee a choice of another position or the right to
be offered another position.
13. Counsel referred to Becke~, 511/82 (Samuels), where the issue
before the Board was whether "the process for placing surplus
bargaining unit employees complies with art. 24 of the collective
agreement."
14. At p.t3 of the Becket case, the Boar.d stated:
31
At the outset, it is important to make it clear that this
Board cannot create a set of rights and obligations which
seem, to the Board, to be the most desirable or
reasonable. Our role is restricted to interpreting the
Collective Agreement arrived at by the parties. Wkat
have they said about their respective rights in their
agreement? (Emphasis in original)
15. Reference was made to the statements of the Board, in Becket,
at pp.14-15:
Article 24.2.1 provides that this position shall be in
the employee's own ministry. Article 24.2.2 allows for
an assignment to a vacancy in one's own ministry _~ond
40 kilometres "with mutual consent". Then Article 24.2.3
provides for an assignment in some other ministry, "where
an employee has not been assigned in accordance with sub-
sections 24.2.1 and 24.2.2".
These qualifying words in Article 24.2.3 make it clear
that, if an assignment can be made within the terms 6f
Articles 24.2.1 or 24.2.2, Article 24.2.3 does not come
into operation. Therefore, it is possible to be assigned
to a position carrying a reduced salary in one's own
ministry, ~hough there are vacancies elsewhere at the
same level as the employee's current classification,
available at the same time.
It would also appear that, when consideration is being
given under Article 24.2.1, the employee must be assigned
to the best position available within his or her own
ministry, depending upon qualification to perform the
work and seniority. The article lists the vacancies to
be considered in descending order, from those in the same
class or position as the employee's current class or
position, down to any other vacancy within the salary
parameters established. And then a similar priority
attaches to consideration under Article 24.2.3. However,
Article 24.2.3 need not be considered if an assignment
can be made under Articles 24.2.1 or 24.2.2.
(Emphasis in original)
16, Relying on the Becket case, counsel stated that the employer
could, in the circumstances, act unilaterally, in applying the
provisions of art. 24.2.1.
17. Counsel pointed out that nowhere in art. 24 is there amy
language that would require the Employer to appoint a surplus
employee to a "legitimate or valid (properly funded)" vacanc~ To
do so would represent an impermissible reading into the agreement
of language not agreed to by the parties.
18. Counsel argued that if it had been the intention of the
parties to require that a vacancy in art. 24.2.1 be properly
funded, it would have been a simple matter for them to have
included it at-the end of art. 24.2.1 by adding: "a vacancy that is
properly funded."
19. Counsel also observed that there was nothing in art. 24 that
required the vacant position to which an employee had been assigned
to last for some minimum period of time.
E, ~nion Response to Employer Reply
Counsel for the Union stated:
1. Counsel clarified her argument by stating that she
acknowledged that the Grievor was not given a choice of positions
under art. 24,2.1. She was arguing, however, that a position
envisaged under that article had to be properly funded. It was her
position that after the Grievor was placed in a position that was
not properly funded (an "invalid vacanay"), he was entitled to be
placed in one of the positions identified by him, which were "valid
vacancies," and only such placement wou].d amount to compliance with
art. 24.2.1.
2. Counsel stated that the position of the Employer begged the
question of: "Is the vacancy to which the surplus employee has been
assigned in purported compliance with art. 24.2.1 such a vacancy as
is contemplated by that article?" Counsel then stated that if it
was not a legitimate vacancy, then the Grievor's rights in not
being assigned a position within the contemplation of art. 24.2.1
had been denied.
3. Counsel argued that when the Grievor was assigned to the
Nursing Homes Accounting Clerk position it was more in the nature
of a term appointment rather than a permanent full-time omc. She
referred to a case where the Employer, in compliance with art.
4.2.1, assigns an employee to a full-time permanent position, where
unforeseen events elfminate it, and contrasted it with the
situation where the Grievor was appointed to the Nursing Homes
Accounting Clerk position where the event that ended the
assignement was foreseen: the end of funding by the Grievor's
former Branch.
4. Counsel responded to the counsel for the Employer's argument
that common sense dictated the interpretation suggested by him. as
there will, of necessity, be times when a position will not b~
properly funded, and that this is why the collective agreement has
certain job security provisions, by stating that, from her
perspective, come, on sense dictated that the "legitimacy" of the
vacancy must be considered, and she raised the subject of bad faith
on the pa~t of the Employer in assigning the Grievor to a time
limited vacancy. In making the last argument, counsel stated that
she was not limiting her argument to one based on the motivation of
the Ministry. (Counsel forL the Employer objected to the
characterization of the Nursing Homes Accounting Clerk position as
being a limited term appointment. He stated that there was no
evidence to demonstrate that the Finance and Accounting Branch had
made a final decision not to continue the funding of the position.
The only agreed-to evidence was that the Public Health Branch would
fund the position for a period of one year.)
5. Counsel relied upon Pilkington Brothers Can__ada Ltd. (1976)~ 13
L.A.C. <2d; 287 (Burkett), where the grievance alleged that the
employer had violated the collective agreement by not posting a
particular job. The position of the employer was that there was no
vacant' job to be posted "because of the intermittent and irregular
nature of the work." (at p.289) Article 7.08 of the relevant
co]lec'tive agreement provided, inter al.ha: "Vacancies for jobs
within' the scope of the bargaining unit shall be subject to job
posting .... "
35
6. Counsel relied upon a statement contained at p.291 6f
?ilkingto~ Brothers, being a quote from Horton Steel [1973), 3
L.A.C. (2d} 54 (Rayner), where the arbitrator, referring to
%'idewater Oil (1963), 14 L.A.C. 233, stated at p.56:
The key words in the above quote, in the board's opinion,
is the phrase "for which there is adequate work in the
opinion of the company to justify the filling of that
position." This statement cannot, of course, mean that
the company can turn a blind eye to the realities of the
situation. The company must determine in its opinion
whether there is, in fact, adequate work for_.the filling
of the position. However, in the board's opinion, the
company's opinion must be exercised on the basis of a
reasonable view of the objective facts as they exist at
the time the vacancy is alleged to exist.
7. Counsel also referred to the statement from the P~ilkin~ton
Brothers case at p.293:
If the job is intermittent or irregular then an
individual cannot be assigned to it on a permanent basis
and it cannot be said that a permanent job vacancy
exists ....
Counsel als6 referred to the statement of the Board at p.294:
On the basis of the evidence presently before it,
however, this board is satisfied that the company has
engaged in a ~roper exercise of its discretion by
considering the availability of continuous work .....
Counsel submitted that, in the case before us, the Employer
did not consider the availability of continuous work when
purporting to apply the provisions of art. 24,2,1, which it
argued by analogy to the Pilkington case, it ought to have done.
If it had done so, it would have concluded that there was no
"vacancy."
36
9. Counsel also referred to R.J. Simpson Manufacturing Co.
(1976), 1! ~LoA.C. (2d) 145 (Hinnegan). This was also a case that
raised the issue of whether there was a vacancy' which had to be
posted under the collective agreement. The arbitrator in Simpson
also referred, with approval, to the Horton Stee~ case, which, in
turn, had followed the Tidewater Oil case, where it was held that
the employer must act reasonably on supportable facts in making a
determination as to whether a vacancy existed which had to be
posted under the applicable'collective agreement.
10. Counsel also relied on Union Grievance, 311/88 (Watters),
where the union grieved that the employer had violated art. 4 6f
the collective agreement by failing to post certain positions under
art. 4 of the collective agreement. In 'deciding that the employer
had breached art. 4, the Board he]dr at pp.15-16,- that there was a
vacancy because the employer required staff to meet its on-going
and regular needs for approximately 40 hours a week on a regular
basis.
11. We were asked to find that the word "vacancy" found in
art. 24.2.1 has content over and above the qualifiers found in that
~article, and relying on the argument made in the cases cited this
content required that there be a funded vacancy which would be
indicative that it was a vacancy of an ongoing nature. Knowing
what the Employer was aware of about the funding of the Nursing
37
Homes Accounting Clerk position, it was submitted that assigning
the Grievor to it was not an assignment to a valid vacancy.
F. Discussion on the First Objection to Arbitrability
1. It is evident that the Grievor not only regards himself to
have had a right to have been appointed to a properly funded
position after he was given notice of layoff on December 4, 1990,
he also regards the representatives of the Employer to have acted
in bad faith in appointing him to a position that did not ha. ye
secure funding. In fact, he regards the Employer to have, on
numerous occasions, manifested its bad faith in exercising i~s
management prerogatives.
2. As above noted, counsel for the Union did not argue that the
Grievor had any right to choose the vacancy to which he must be
appointed pursuant to art. 24.2.1, but relied on both the failure
of the Employer to appoint him to a properly funded position, as
well as the alleged actions manifesting bad faith, as a basis for
our ordering his appointment to one the "properly funded" positions
identified above.
3. if we had found that the position taken on behalf of the
Grievor was correct and that a vacancy to which he was assigned
under art. 24.2.1 had to be t'properly funded'~ in the manner
described, and that, in the circumstances, the Nursing Homes
Accounting Clerk position to which he had been assigned was not
such a vacancy; and if we had also found that the representatives
of the Employer had acted in bad .faith land we emphasize that we
have made neither of those findings), the most that the Grievor
could expect by way of remedy would be an order that he be assigned
to a vacancy that is properly funded an~ meets all of the other
requirements of art. 24,2.1.
4. When the Employer~ on May 28, 1992, assigned the Grievor to
the position of Group Leader, Client Information with the Assisti%e
Devices Branch, With his classification remaining as office
Administration 8, and with his seniority status and benefits
remaining unchanged, it assigned him to a position within the
required radius of his headquarters, within the salary range
provided for, which represented "a vacancy which is in the same
class or position as [his] class or position, as provided for in
art. 24.2.1."
5. In the circumstances, to have issued an order requiring the
Employer to appoint the Grievor .to one or other of the positions
that he identified would not accord with the requirements set out
in art. 24.2.1. If the Employer had breached that article, as
alleged by the Union, such breach could be remedied by the Employer
being ordered to appoint the Grievor to a vacancy that satisfied
the conditions set .out in the article; not by requiring it to
appoint the Grievor to a vacant position identified by him.
39
6. Article 24.2.1 does not distinguish between vacancies which
are in the same class or position as the employee's class or
position. Accordingly, where an employee "is identified as
surplus" he has no greater rights than are provided for in
art. 24.2.1. If that article is violated, the employee is entitled
to be placed in a position esBablished under that article. This is
what happened to the Grievor, and the effect of a proper assignment
would rectify any earlier violation.
?. The Grievor has not suffered any loss in rate of pay,
seniority, benifits or classification status as a result of an
alleged violation of article 24 by the Employer. The job posting
cases relied upon by counsel for the Union d~ffer from the case
before us in a number of ways. It is significant that in the job
posting cases referred to, the grievors could, if successful, be
appointed to'the job they had applied for. In the case before us~
success for the Grievor would not require the Employer to appoint
him to any particular job. The Grievor would only be able to claim
the right to be appointed to some available job within the
contemplation of art. 24.2.1, and as the Employer has done so, he
is not entitled to any other form of relief. From the perspective
of art. 24.2.1, the Employer does not have to consider the
preference of the Grievor, who cannot insist on being appointed to
a particular vacant position because he regards it as being more
secure.
8. We emphasize that the nature of the case before us does not
require us to decide whether a "vacancy" has to be properly funded
· to permit the Enployer to make an assignment pursuant to art.
24,2,1. Our decision assumes this to be the case without having to
decide the point.
8. We recognize that the Grievor wishes to have us adjudicate his
complaint that he has been dealt with unfairly by the Employer.
This was made clear from the factual assertions, above recorded,
made on his behalf by counsel for the Uhion. We also recognize that
arbitration frequently involves more than rendering a decision on
a narrow legal issue. Not infrequently, a grievor wishes to air
related complaints that involve unfair treatment that affect his
integrity as a human being, even where these allegations may not be
capable of yielding other than declaratory relief. We do not
ignore the additional concerns of the Grievor, but wish to assess
the cost of permitting the case to proceed against the iikelely
benefits to be derived,
9. As we have found that even if the allegations of the Grievor
could be established (those relating to the bad faith of t'he
Employer in purporting to exercise its rights), the tangible relief
that could be afforded him would be unaffected.
10. In order to satify the desire of the Grievor to "expose" the
bad faith of the Employer, we are satified that a minimum of.~en
41
days of hearing would be required. The formidable list of persoas
referred to in the grievance, as amemded, indicates that o~r
estimate may be insufficient]}~ conservative. Without foreclosiog
the possibility of another panel of the Board, in similair
c~rcumstances, proceeding to hear evidence of bad faith~ given ali
of the circumstances, not the least of which is the considerable
cost of continuing with the hearing at a time when the economic
implications of our decision cannot be ignored, we decline to do
SO.
Decisio__q
In the circ~unstances, and for the above reasons, the grievance
is denied.
Because of our decision it is unnecessary for us to deal with
the other 'two objections raised by counsel for the Employer. It
was also unnecessary for us to deal with ail of the arguments
raised by counsel in dealing with the first objection. It is
usually best to avoid dealing with issues that are not, strictly
speaking, essential to the decision and, notwithstanding the
excellent arguments submitted by counsel, we have decided to limit
our reasons for the decision to those that were essential to
dispose of the case.
Dated at Toronto this 7th day of Oc. tober, 1993.
Mo Gorsky - Vice Chairperson
"I Dissent" (dissent to follow)
T. 8rowes-Bugden - Member