Loading...
HomeMy WebLinkAbout1994-1284PIVA96_01_23 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L ON1ARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STl'~EET WEST, SUITE 2700, TORONTO ON M5G 7Z8 TELEPHONE/TELEPHONE (476) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPJE (416) 326-1396 GSB # 1284/94 OPSEU # 94G128 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Pi va) Grievor - and - The Crown in Right of ontario (Ministry of Finance) Employer BEFORE M Gorsky Vice-Chairperson FOR THE B Collrin GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE L Marvy EMPLOYER Counsel Legal Services Branch Manangement Board Secretariat HEARING January 5, 1996 2 INTERIM DECISION The grievor, Anna Piva, filed a grievance on August 2, 1994, clalming that she had been "unfairly marked in the competition for Assistant Co-ordinator Branch Services (File #271-93) Article 4 posting & filling of vacancy has been violated " She requested that she "be re-assessed and audited and be awarded the positlon of Asslstant Co-ordinator Branch Servlc~s " Exhibit 4 is a posting, dated March 25, 1994, with a closing date of April 11, 1994, with respect to the position of Assistant Co-ordinator Branch Services The posting related to six positions at five locations in the City of Toronto being 328 Bay Street 838 Broadview Avenue 2035 Danforth Avenue 112 St Clair Avenue West 439 University Avenue The posting provided for two positions to be filled at the 328 Bay Street location, with one position to be filled at each of the other four locations Each of the locations was allotted a separate file number, the file number for the 328 Bay Street location was 271-93, and the posting, in requesting the submission of appllcations by the closing date of April 11, 1994, advlsed the applicants to quote the "appropriate FILE NUMBER" (emphasis in original) 3 The area of search indicated that it was Restricted to t'/Jinistry of Finance classified clvil servants presently working at, or whose prlnciple resldence is within 40 km of the above stated offlces Ministry of Finance unclassifled and GO Temporary employees whose prlnciple resldence is within 40 km 0 f the above stated offices I are also eligible if they are employed during the posting period The posting also lists the six Management Board Secretarlat Clearance numbers with respect to the six positions available, the numbers at the Bay Street location covering two positions Nineteen candidates were interviewed, of whom fifteen applied for a position at all of the locations listed in the posting Ms Piva and one other candidate only applied for a position at 328 Bay Street Another candidate only applied for a . t- . at the posl~lon Broadview1 Danforth and St Clair locations And one candidate only applied for a position at the Danforth Avenue lO2ation Ms Piva/s score gave her a ranking of 12 out of the 19 candidates, and she was unsuccessful in securlng a posltion The six successful candidates applied for a positlon at all of the flve locations llsted in the posting Two of the successful candidates, Frank Zeni, who was a GO ~emp employee and who had the highest composite score, being 155 out of a possible 180, and Antonella Felicel whose composlte score was 140 and who ranked 4 fifth in the scoring, were awarded positlons at the Bay Street location At the opening of the hearing, counsel for the Employer made an application to consolidate the grievances of the grievor and another unsuccessful candidate, Susan MacDonald, whose composlte score was 132 and who was ranked ninth Ms MacDonald filed her grievance on July 13, 1994, claiming that she had "not been awarded the position of Assistant Co-ordinator Branch Services - Offlce Administration Group (0 A G 8) Re - Flle #271-93, 272-93, 273-93, 274-93 & 275-93 II Ms MacDonald, who applied for all of the SlX positions, requested that she "be awarded one of the six positions of Assistant Co-ordinator Branch Services retroactive to the date the position was filled with full wages and benefits " It was acknowledged that the employer conducted a single competition in which all of the applicants were interviewed by the same panel using the same questions and marking scheme to arrive at a common scoring and ranking Counsel for the Employer submitted that this was the kind of case within the contemplation of the Board's Practice Note dated April 11, 1986, which is as follows WHERE ORDER MAY BE MADE Where two or more proceedings are pending before the Grievance Settlement Board and it appears to the 5 Grievance Settlement Board that, (a) they have a questlon of law or fact in corrunon, (b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences, or (c) for any other reason an order ought to be made under this rule, the Grievance Settlement Board may order that, (d) the proceedings be consolidated or heard at the same time or one irrunediately after the other, or ( e) any of the proceedings be, (i) stayed until after the determination of any other of them In the order, the Grievance Settlement Board may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the Grievance Settlement Board may dispense with service of a notice or listing for hearing and abridge the time for placing a grievance on the hearing list " Counsel for the employer argued that both grievances have quostions of law and fact in common Reference was made to Article 4 3 1 of the collective agreement In filling a vacancy, the Employer shall glve primary consideration to qualificatlons and ability to perform the required duties Where qualifications and abillty are relatively equal, seniority shall be the declding factor It was submitted that corrunon questions of fact arlse because both grievors had applied for the same competltion, were 6 lntervlewed by the same panel members, were subject to the ldentical process where the same questlons were asked and where the same scoring system used and sought substantially the same rellef It vIas also submltted that the relief claimed ln both grlevances arose "out of the same transaction or occurrence, " belng the competition with respect to the posltion It was further submitted that the same questions of law would arise in both grievances relating to the same competition and to the interpretation of Article 4 3 1 It was submitted that the Practice Note was directed at situations such as the grievances of the grievor and Ms Ma.cDonald and was intended "to avoid unnecessary costs or delay " Counsel for the employer relied upon two cases where the union had made an application to consolidate a number of grievances, relying upon the Practice Note above-quoted Reference was made to Hardeman et al. 1206/90 etc (Verity) , an unreported decision, dated April 9, 1991 amd to Union Grievance 1526/91 etc (Kaplan) , an unreported decision dated March 18, 1993 In the Hardeman case, there were six identical grievances filed by employees in various classifications who worked on a specified ward at the Oxford Regional Centre operated by the Ministry of Community & Social Services At the outset of the 7 hearing, counsel for the union requested consolldation of the SlX grlevances with a number of additlonal grlevances relating to employees at the Centre The union sought to consolidate the six grievances concernlng employees assigned to Ward 8-C with a number of additional grievances relatlng to employees assigned to Ward I-East together with a union grievance lnvolving Ward 8-C, Ward I-East and the Dietary Unit There were three issues that would impact on the two Wards and the Dletary Unit referred to (1 ) The adequacy of staff scheduled on shifts (2) The adequacy of staff training (3 ) The appropriateness of the use of relief staff The union malntained that all grlevances involved essentially the same facts and the same law The panel in Hardeman was referred to the provision in the Rules of Civil Procedure relatlng to the "Consolidation Or Hearing Together" found in Rule 6, as well as the above quoted Memorandum dated Aprll 11, 1986, from Chairperson Shime, issued as a Directlon which II for all intents and purposes, adopted the provisions of Pule 6 01 " (Hardeman at p 4) After considering the submisslons, the Board was persuaded I 8 that there was "reason to avoid a multlplicity of proceedlngs before different panels of the Board and to accommodate some form of expeditious procedure " The Board noted, at p 5, that on the facts before It there was "reason to avold a multiplicity of proceedings before different panels of the Board and to accommodate some form of expedltlous procedure " The Board found that there were "essentially three groups of grievances" involving health and safety concerns which had "questions of law and fact in common whereby the relief claimed directly arises from management's decision in 1987 to 'downsize' the Oxford Regional Centre " In Union Grievance, the grievance filed alleged a violation of Article 25 of the collective agreement claimlng that the employer improperly calculated the continuous service of certain civil servants At the hearing, submissions and arguments were heard and an agreed-upon statement of facts was introduced The case concerned the Mlnistry of Natural Resources, and the parties agreed that as at August 6, 1991, being the date of the grievance, the Ministry employed over 4,000 classified employees who were subject to the collective agreement between Management Board and OPSEU The Mlnistry also employed a large number of seasonal employees whose terms and condltions of employment were regulated by the collective agreement between Management Board and 9 OPSEU Prior to June 13, 1991, seasonal employees who were successful applicants for permanent staff positions were entltled to credit for previous continuous service as unclassifled employees accordlng to the terms of Article 25 1 of the collective agreement in force at that time, which provided An employee's length of continuous serVlce will accumulate upon completion of a probationary period of not more than one year and shall commence ( a) from the date of appointment to the Classified Service for those employees with no prior service in the Ontario Public Service, or (b) from the date on which an employee commences a period of unbroken, full-time service in the public service, immediately prior to appointment to the Classified Service, (c) for a regular part-time civil servant, from January 1, 1984 or from the date on which he commenced a period of unbroken, part-time service in the public service, immediately prior to appointment to a regular part-tlme position in the civll service, whichever lS later !I Unbroken service" is that which lS not interrupted by separation from the public service, 'full-time' is continuous employment as set out in the hours of work schedules for the appropriate classificatlons, and' part- time' is continuous employment in accordance wlth the hours of work specifled in Article 61 1 Prior to June 13, 1991, only actlve unclassified employment which was contiguous to the cormnencement of actlve employment In 10 the clvil service was credited The maximum credit that a seasonal employee could receive upon joinlng the classifled service was for the last season worked, provided it had ended immediately prior to the appointment to the classified service (at pp 3-4) Related to the events recorded was the filing of a union grievance on October 30, 1990, that claimed that the Minlstry was lmproperly appointing a number of employees to unclasslfled positions The basis of the union's claim was its assertion that the length of these contracts, up to 11 months in a 12-month period, indicated the existence of de facto permanent positions in the classified service rather than seasonal positions in the unclassified service On June 13, 1991, the partles settled this grievance, and the settlement was issued as per a Board Order and resulted in approximately 1,000 unclassified seasonal positlons becoming classified positions It also resulted in the "roll-over" placement of approximately 927 incumbents of seasonal positions to the classified civil service In resolving the 1990 grievance, the parties addressed the lssue of continuous service, and the effect of their settlement was to give pro-rated credit for continuous serVlce based on hours worked since 1984, and break periods were not included in the calculation (at p 4) The incident that led to the filing of the union grievance in 11 1991 was the M1nistry's maJor reorganizat1on of deployment and complement that affected all levels of class1f1cation 1n every major program area and in every reg10n in the prov1nce As a result of these changes, a number of employees either changed posit1ons or job locations Where job security was affected, the Ministry was obligated to consider the seniority of the affected employees At p 5, the Board noted Appointments to positions and/or work locations are determined among permanent staff on the basis, in part, of continuous service However , individuals who had prev10usly been appointed to the permanent staff pursuant to Article 4 of the Collective Agreement had been generally credited less generously with the1r unclassified cont1nuous service than those ind1viduals who were appointed to the classified staff pursuant to the settlement of the 1990 Grievance In the result, there are variations in the seniority among employees that depend not on actual time worked, but the formula used for crediting that time By and large, al though there are exceptions to this, those employees who rolled over have received greater seniority credit for time worked in the unclassified civil serV1ce than those employees who posted in After the roll-over came into effect, the employees who had posted in wanted to be treated, for seniority purposes, the same way as the employees who had rolled over, and so the 1991 Grievance was filed Between the settlement of the 1990 grievance and the exp1ry of the 1989-1991 Collective Agreement there were very few appointments to the permanent civil service On January 1, 1992, a new collective agreement came into effect, and Art1cle 25 1 was changed to provlde a different formula for the calculatlon of continuous service upon hiring from the unclassified public service 1nto the classif1ed public service (at 12 P 6) In order to evaluate the basis for a consolidation order that was made in Union Grievance, it is necessary to examine certain matters that were before the Board At p 7, the Board notes In brief, the unlon takes a number of alternative positions First, that Article 25 llb) of the 1989-1991 Collective Agreement provides that all unclassified service, which covers all calendar time from the date of an employee's first seasonal contract until appointment to the civil service, is credited to the employee upon entry into the classified civil service In the alternative the union argues that the settlement of the 1990 Grievance was with prejudice and provides the formula agreed upon by the parties for the determination of seniority of all employees, not just those who rolled over Or, in the further alternative, that the provisions of Article 25 l(d) of the successor Collective Agreement cover all employees, including those appointed to the classified civil service pursuant to the roll-over In the union's submission, the new Article 25 1 retroactively readjusts the seniority of the roll-over employees and in that way ensures that all employees are treated equally for the purpose of seniority calculation The employer takes the position that Article 25 l(d) of the 1992-1993 Collective Agreement provides the formula for the calculation of seniority for all employees except those covered by the 1990 grievance settlement, the roll- over employees It is worth noting in passing that the seniority calculation provision in the 1992 -1993 Collective Agreement is more favourable to employees than that found in the predecessor Collective Agreement, but is not as favourable to employees as provided for in the roll-over settlement of the 1990 Grievance At pp 9-10, the Board notes Between the flrst day of hearing and the second scheduled day of hearing the union filed another grievance Dated July 9, 1992, this grievance alleges that the Ministry is calculating the seniority of civil servants unequally 13 The remedy sought 1S a declaration that seniority hould be calculated 1n the same manner for all employees, along with any other remedial relief that may be a consequence of the improper calculation of seniority The union sought to have this grievance (hereafter referred to as the '1992 Grievance' ) consolidated with the 1991 Gr1evance The employer refused the request, taking the position, inter alia, that the grievances did not involve the same issue and so should not be before the same panel The union wrote the Chair of this Board requesting a consol1dation order By letter dated December 11, 1992, Mr Shime referred this request to this panel of the Board for argument and decision At p 10, the Board noted that Union counsel argued that the two grievances dealt w1th the same subject matter, that is the proper calculation of seniority They were about exactly the same thing, and the best way for this issue to be resolved was by the Board hearing them both together, either by way of consolidation or seriatlm Employer counsel (in Union Grievance) argued that the two grievances were not the same and therefore should not be heard together (at p 11) Counsel for the employer argued that the Board was seized with the first grievance and that it would be lmproper, the hearing of the case having begun, to consolldate a second case with 1t, especially given the objectlons of one of the parties I ibicLJ Employer counsel further argued that a necessary precondition to consolidation was that two or more matters be "pendinglt before the Board In employer counsel's V1ew, the 1991 grievance was pending but the 1992 grievance was not because no panel of the Board had yet been seized wlth ~t (at p 12) In addition, employer counsel argued that thf~re was no 14 evidence before the Board to enable it to find that condltions (a) and (b) of the practice note had been met Counsel for the employer noted that the agreed statement of facts entered into evidence on the first day of hearing did not apply to the 1992 grievance In addltion, a different collective agreement was in force for each grlevance, so it could not be said that there was any common question of law In addition, employer counsel suggested that the union's various alternative arguments were unique to the 1991 grievance and so could not be part of a consolidated case involving the 1992 grievance Employer counsel also relied on principles of natural justice based on the fact that the Board was seized with one case so that it could not be said to be starting with a "clean slate" with respect to the determination of the second case Counsel for the employer also argued that the Board was constituted by a collective agreement and only had jurisdiction to hear cases arising out of the agreement under which the dispute arose Although employer counsel agreed that the Board was also constituted by statute, he submitted that it could not, at the same time, simultaneously constitute itself under two different collective agreements (p 12) Employer counsel also argued that the Board's jurisprudence dld not permit consolidation orders in the case of poL_ cy grievances (pp 12-13) 15 The Board, ln allowlng the application for a consolldatlon order, stated that it not only has the statutory power and responsibility to detemine lts own procedure, It has, in the Consolidation Practice Note, set out its policy with respect to consolidation applications (p 14) In flndlng that lilt would be hard to think of a more appropriate occasion in which to direct the consolldation of two casesll (p 14) , the Board noted that the two grievances arose out of the same set of facts and affected the same group of employees, IIgenerally considered " (ibid.) The Board also noted, referring to OPSEU and The Crown In Right of Canada (1989) , 51 o R ( 2d) 474 (Div Ct ) , that the IIBoard is a creature of statute which, at all relevant tlmes, has had jurisdiction to deal with grievances under whatever collectlve agreement may have been in force between the employer and the applicant union II .L\.t pp 14-15, the Board noted Both grlevances involve the seniority entltlements of the same employees Senlority entitlements are extremely important, and are of a continuing nature We are hard pressed to think of any legal and policy reason ln support of having these virtually identlcal policy grievances separately heard and declded At p 15, the Board noted that the grlevances ralsed "common lssues of fact and law II The Board also noted that there were other 16 reasons in support of a consolldation order based on the need to make best use of the Board's or the parties resources The 1992 Grievance would eventually be scheduled for hearing, and at that time many of the same submissions and arguments would be made To be sure, part of the claim and some of the facts in the 1991 Grievance are different from that in the 1992 Grievance However, thlS can be dealt with by consolidating both cases and hearing submissions and arguments with respect to the 1991 Grievance f1rst, and then hearing submissions and argument with respect to the 1992 Grievance Obviously, there is nothing wrong with the union making alternative submissions with respect to the first of these grievances, and the fact that it may end up doing so is not a bar in and of itself to a consolidation order Alternative submissions are commonly made before this Board, and by proceeding in the manner just outlined any concerns that the employer expressed about the possible breach of the requirements of natural justice can be met Put another way, those facts and arguments that pertain only to the 1991 Grievance will be heard first Then we will hear the facts and arguments that pertain to the 1992 Grievance Then we will issue reasons for decision in both grievances Because the parties did not submit any agreed statement of fact in this case, and because no viva voce evidence was called, it is not possible to say with certainty that there are common issues of fact or law in the two cases with respect to which consolidatlon 1S sought There was no agreement between the parties as to the 1ssues of fact and law that were raised by each grievance The exact nature of the challenge to be raised in each grievance agalnst the way in which the competition was conducted not being the subject of agreement, and no evidence having been adduced with respect to these matters, we are left to conJecture as to what the common lssues of fact or law raised by the grlevances might be The 17 factual issues and the legal issues that may emerge ln each of the grievances may not be common to both cases even though they arise out of the conduct of the same competltion Nevertheless, both grlevances arising out of the same competition there may, indeed, be common lssues of fact or law, not necessarily covering all of the issues of fact and law lnherent in each of them Consolidation and related procedures provided for under the Practice Nirection are not limited to cases that have questlons of law or fact in common The relief claimed in both grlevances arises Hout of the same transaction or occurrence, II the competitlon representing either the same transaction or occurrence Based on the experience of the Board, issues concerning the sufficlency of a competition that arise in one grievances are very l~kely to arise in other grievances challenging the sufficiency of the panel's conduct. of the selection process in the same competition The structure of the interview questions, the model answers and the marks to be given for different answers are usually explored in detail in competltion ca8es, and lt would be an lnappropriate use of the resources of the parties and of the Board to require these matters to be explored on more than one occasion It should be noted that there is a dJ.fference between the 18 consolidation of grlevances and the hearlng of the grievances at the same time or one immediately after the other, which are also provided for under the Practice Direction On the facts before us, there are reasons to make an order that the two grievances be heard "one immediately after the other " In making such an order, no unfalrness will be imposed on the grievors or the parties, and it wlll, thereby, be posslble "to avold unnecessary costs or delay" and the possibillty of disparate findings should the matters be heard by different panels of the Board By ordering that the grievances be heard one immediately after the other, the Board will be able to decide common issues of fact or law in the same way If there are no such common questions, there will be no significant hardship imposed on either the grievors or the parties In the circumstances, we direct that the two grievances be heard one immediately after the other by this panel When the parties inform me of the number of hearing dates that they anticlpate wlll be necessary in order to hear the grievances, I shall advise the Registrar, who will contact them to make the necessary schedullng arrangements 19 The parties have undertaken to notify all persons who may be affected by the decision and who are entltled to an opportunity to attend, participate, and be represented at the hearlng DATED at Toronto this 23rd day of January, 1996 -,~' f G /. L ' ' l --<Y-<:.-\/'"".....-'~ r M R Gorsky, Vice-Chairperson .