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HomeMy WebLinkAbout1993-1351.Campbell.95-01-24 - -------- 7!~.- -...;" . ONTARIO EMPLOYES DE LA COURONNE ~ CROWN EMPLOYEES DE L'ONTARIO j - GRIEVANCE COMMISSION :DE , 111111 SETTLEME~T REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G IZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G IZ8 FACSJMJLEITELECOPIE (416) 326-1396 GSB# 1351/93, 257/94 OPSEU# Q4A628, Q3GOQS IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Campbell) Grievor - and - The Crown in Right of On~ario (Ministry of Labour) Employer BEFORE: R. J. Roberts Vice-Chairperson / M Vorster Member D Clark Member - FOR THE S stamm UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE G. Sutton EMPLOYER Staff Relations Officer Ministry of Labour HEARING March 15, 1994 November 10, 1994 .. \ - ;;1 2 INTERIM AWARD I ThIS mterim award addresses the way m WhICh several proviSIons of the Collective Agreement mteract WIth each other These provlSlons are. ArtIcle 3 15 1 {converSIOn of unclassified positions to classified pOSItions), ArtIcle 4 (postmg and fillmg of vacanCIes or new positions), and, Article 24 18 (assignment of surplus employers) As to the context of thIS case, InItially there were two gnevances before the Board one chummg Improper appointment to the unclassified servIce, and the other essentIally'clalmmg that the unclassified job bemg performed by the gnevor should have been made a new claSSIfied position and posted in a Job competition long before It was reqUIred to be filled by the aSSIgnment of a surplus employee. At the heanng upon the preliminary objection, counsel for the UnIOn conceded that the gnevor was properly appomted to the unclassIfied servIce. ThIS left only the second grievance to be determmed In this case. In hIS preliminary objectIOn to the second gnevance, counsel for the Employer submItted that the assignment of a surplus employee to the claSSIfied posItiOI} bemg sought by HIe gnevor ended the matter In hIS submISSIOn, an aSSIgnment pursuant to Article 24 18 of the Collective Agreement overrode any reqUirement to post under ArtIcle 4, and, as such, extingUIshed any right the gnevor may have had to reqUIre such a postmg I " I ~ 3 Counsel for the UOlon, however, essentIally contended that the gnevor stIll retaIned the nght to place before the Gnevance Settlement Board a chum that the Employer breached the CollectIve Agreement by not creating and postIng the new pOSItIon earlIer than It dId, thereby filling the pOSItIon before August, 1993, when a large number of employees were declared surplus and had to be matched WIth then-exIstIng vacancies We agree that despIte the aSSIgnment Into the gnevor's posItion of the surplus employee, the grievor retained th~ right to have thIS Board determine whether the timing of th~ converSIon of hIS unclaSSIfied positIon Into a classified posItion met the reqUIrements of the Collective Agreement. Accordingly, the prelimInary objectIOn is dismissed. II At the hearing, the parties submItted the followmg agreed statement of facts. Grievor employed on end to end contracts as Audit Assessm~nt Clerk (OAG 9) at the Ministry of Labour's Employment Standards Branch to work in the Employee Wage Protection Program. Tbe grievor's pOSition, namely Audit Assessment Clerk, was created in April, 1991 Tbe Grievor commenced work as an Audit Assessment Clerk in October of 1991 on a contract from October 1, 1991 to March 31, 1992 and was employed under concurrent contracts as follows, March 31, 1992 to March 31, 1992 May 1, 1992 to March 31, 1993 April 1, 1993 to December 31, 1993 , < , .- 4 The grievor received notice on June 16, 1993 of early termination of his contract, stating that his employment would end on October 8, 1993 in accordance with the mass termination notice provisions. of the Employment Standards Act. On October 4, 1993, the employer granted an extension of his notice of termination to December 31, 1993. The grievor remained in his position until December 10, 1993 and was paid to December 31, 1993 From October 1, 1991 to December 10, 1993 the grievor performed the same work, i.e" was always an Audit Assessment Clerk, Classified employees who had been declared surplus were subsequently matched with available positions including positions like the grievor's clerk position in accordance with Article 24 of the Collective Agreement. The Ministry has determined that there is a continuing need for that work to be performed on a full-time basis: these positions became classified. The Ministry determined that the number of Audit Assessment Clerks be reduced from 8 to 6 in the Toronto Area. From this agreed statement of facts and additional evidence entered at the heanng, there was little doubt that as of Apnl, 1993, the unclassified positIon of Audit Assessment Clerk had I It was aiso shown that by June, eXisted and was performed by the grievor for at least two years 1992, while the gnevor was m the pOSitIOn, the Employer recognized that there waS a contInuIng need for the work of the Audit Assessment Clerk to be performed ona full-time baSIS I On thIS: latter point, Ms. Ho Chan; the grievor's Manager, testified that in December, tIAl!th! 1992, the Employer applIed to the Treasury Board... the Management Board of CabInet to ^ convert fundmg that It had for unclaSSIfied AudIt Assessment Clerks Into funding for use for permanent classified posItions : ~ ~~ ~, ~ i 5 It was not untIl August, 1993, however, that the c1assltied AudIt Assessment Clerk posItions were created There was httle eVIdence as to the reason for the delay of about 8 months from the date of apphcatIon to Management Board Soon afterward, it became apparent to management that a large number of employees were about to be declared surplus and that It would be necessary to attempt to match them with " existing vacancies, Includmg those ,n the newly-created Audit Assessment Clerk positlOns On November 8, 1993, a surplus employee was assIgned to the positlOn OCCUpIed by the grievor The gnevor's contract extended until December 31, 1993, however, he was ,permItted to leave on December 10, 1993, to look for other work while being prod untIl the end of the month ill The submIssIons of the partIes focused upon the followmg provisions of the Collective Agreement. CONVERSION OF UNCLASSIFIED POSITIONS TO CLASSIFIED POSITIONS 3 15,1 Effective April 1, 1991, where the same work has been performed by an employee in the Unclassified Service for a period of at least two (2) -r' consecutive years, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work, and shall post a vacancy in accordance with Article 4 (Posting and filling of Vacancies or New Positions) 316 The following Articles shall also apply to uncl~ssified staff other than seasonal employees: Articles" 4.1, 4.4. ;-----;--- I i ~ ,"" . 6 I ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW POSITIONS 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 i~ shall be advertised for at least fifteen (15) working days prior to the' established clo~ing date when advertised service-wide, All applications will be acknowledged, Where practicable, notice of vacancies shall be posted on 'bulletin boards. 4.2 The notice of vacancy shall state, where applicable, the nature of title of position, salary, qualifications required, the hours-of-work schedule as set out in Article 7 (Hours of Work), and the area in wJlich the position exists, 4.3 1 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perronn the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor 4.3,2 Notwithstanding subsection 4.3 1, the Union and the Employer may agree that employment equity shall be the overriding consideration, Such agreements will be made in advance of job postings and may be based on individual positions, groups of positions, classifications or other groupings of jobS as appropriate. 4.3,3 Agreements under subsection 4,3,2 will be based on an analysis of workforce data and employment systems indicating that a designat~d group is or groups are under represented, 4,3.4 It is recognized that in accordance with section 14 of the Ontario Human Rights Code, the Employer's employment equity program shall not be considered a contravention of this article, 4.4 An applicant who is invited to attend an interview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend the interview, provided that the time of does not unduly interfere with operating require~ents. 4,5 Relocation expenses shall be paid in accordance with the provisions of the Employer's policy - ., 4f}:! R '!t. .~ 'i 7 4.6.1 With the agreement of the Union, the employee and t~e Employer, an employee may be assigned to a vacancy where: (a) the vacant position is identical to the position occupied by the, employee, and (b) the vacant position is in the same ministry as the position occupied by the employee. and the provisionS of sections 4.1, 4.2, 4.3, 4.4 and 4.5 shall not apply 4 6.2 The assignment of an employee to a vacancy in accordance with Articles, 5, 24, 30, 42, 50 and 51 shall have priority over an assignment under section 4.6.1 4.7 Where the duties of a position are modified to accommodate an employee with a disability, the position shall not be considered a vacancy for the purposes of this article. 24.18 It is understood that when it is necessary to assign surplus employees or appoint persons in accordance with this Article, the provisions of Article 4 (Posting and Filing of Vacancies or New Positions) shall not apply Counsel for the Employer submitted that the 'assignment of a surplus employee mto the newly-created AudIt Assessment Clerk posItion under Article 24 18 of the Collective Agreement ousted Article 4 of the Collective Agreement, lllcludlllg the posting and notice requirements of ArtIcle 4 4 This, it was submitted, left the grievor WIth nothlllg to gneve I I It IS noted that under Article 3 16 of the Collective Agreement, supra, unclassIfied staff only have nghts under the postmg and notice provIsions of ArtIcle 4 1, and the time off for mtervIew processlOns of ArtIcle 4 4 . \T- f 8 Counsel for the Union~ however, submitted that thIS was not the case Before an assIgnment of a surplus employee under Article 24 18 could oust the postmg and notice reqUlrements of ArtIcle 4 1, It was submitted, the creation of the vacancy m the AudIt - Assessment Clerk position had to beaccomphshed in accordance WIth the requirements of ) ArtIcle 3 15 1, supra and the aSSIgnment had to be In accordance WIth the reqUIrements of ArtIcle 24 18 The Union wished to challenge the ments of the creation of the vacancy m the ) AudIt Assessment Clerk pOSItIon In the Umon's submIssIon, ArtIcle 3 15 1 reqUIred the new classified positIon to be created soon after the expIration of the two year period and the Ministry's determination of a contmUIng need for the pOSItIOn The delay of at least eIght months, m this case, It was s~bmitted, was too long to satisfy the requirements of ArtIcle 3 15 1 If the Job had been created sooner, It was further submItted, It would have been filled through the posting provIsions of ArtIcle 4 1, long before It became necessary to aSSIgn a surplus employee under ArtIcle 24 18 of the Collective Agreement. In thIS regard, counsel for the Umon referred the Board to Re McIntosh and Mimstry of Government ServIces (1993), G S B No 3027/92 (Dissanayake) In that case, It was concluded that the Board had junsdiction to consIder the ments of a gnevan~e of an unclaSSIfied employee allegmg bad faith m the Job competItion process. See Id at 11 et~. We lIkeWIse conclude that we have Jurisdiction in the present case, hmited though it may be to the narrow inquiry suggested by counsel for the Umon ~ I ~ \ ; I 9 Accordmgly, the prelImmary objectIOn IS dIsmIssed The gnevor retams the nght to have \ thIS Board determine whether the tImmg of the converSIOn of hIS unclassIfied_position met the requirements of the CollectIve Agreement. DATED at London, ,Qntano, this24thday of January, 1<)<)5 , R J Roberts, Vice-Chairperson ~ M. Vorster, Union Member 1 }J~ -~ ..A.t ~.--: '. D Clark, Employer Member I