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HomeMy WebLinkAbout1995-0577BHATTI97_11_06 ONTARIO EMPLOY~S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE " SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTOONM5G 1Z8 TELEPHONErrELEPHONE (418) 32tJ-1388 1SO,RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G fZ8 FACSIMILE/TELECOPIE (418) 32tJ-13QtJ GSB # 577/95 OPSEU # 950017 ~N THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEKENT BOARD BETWEEN OPSEU (Bhatti) Grievor - and - the Crown in Right of Ontario (Ministry of Housing) Employer BEFORE o V. Gray Vice-Chair FOR THE E Holmes UNION Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE 0 Holmes EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING September 11, 19.97 /' DECISION At the conclusion of the union's closing argument m thIS matter, counsel for the employer saId she had been taken by surprise by one of the posItIOns taken by the union in argument. She saId she felt it represented an Improper enlargement of the union's case She asked that the matter be adjourned so that she could take instructions on how to respond and, in particular, whether to re- quest that the evidentiary portion of the hearmg be re-opened to permIt her to lead further evidence. I granted the requested adjournment on certam terms. This deciSIOn prOVIdes reasons for that disposition. It IS common ground that the gnevor worked for several years as an un. classified employee on a series of contracts m varIOUS office support positIOns m the MIniStry of Housing In the summer of 1992, the Mlmstry of Housmg posted a vacancy for a permanent Office Support Clerk pOSItion. The grievor and others apphed. The competition for that Job was put on hold in August 1992, pendmg clearance of the surplus hst. A surplus employee was assigned to the vacancy m May 1993 The Job competItIOn did not proceed The grievor contmued working on a further succeSSIOn of contracts untIl June 1994, when he was released. The gnevor filed two gnevances WIth respect to the Job competitIOn, and a tmrd grievance with respect to hIS release On December 6, 1994, the date set for the Board's hearmg of the gnevances, the partIes dIscussed settlement and even- tually SIgned a wntten agreement ("the Memorandum") that prOVIded as follows 1 The MmIstry will, notwIthstandmg any other prOVISIOn of the collectIve agreement between OPSEU and the Crown, advertIze the classIfied pOSItIon of Office Support Clerk (classIficatIOn OA3) at 56 Wellesley St. W , Toronto ("the pOSItIon") under ArtIcle 4 m January 1995, with the matter commg to full closure by March 30, 1995 and the competitIOn will be restncted to Mmistry of Housmg employees. - 2 - 2. The gnevor will be entItled to apply for the posItIOn, even though he IS not presently employed by the Mimstry, wIth full rIghts of gnevance under ArtIcle 4 if he IS not successful The gnevor will also have full recourse, If appropnate, under all applIcable laws Including the Human Rights Code. 3. Panel members In the competItIOn wIll be ImpartIal and wIll choose the successful candidate in accordance WIth ArtIcle 4. The manager to whom the positIOn reports will charr the competition panel. No informatIon will be provided to panel members concermng the grIevance, human rights and WDHP proceedmgs whIch preceded thIS settlement, and such proceedmgs will form no part of the panel's consideratIon. 4. The gnevor and the union hereby release the MInIstry and Its employees and agents from any liability arisIng out of these grievances and the gnevor's human rIghts complaint (OHRC File No. TE 000619) 5 The gnevor and the umon hereby withdraw these grIevances and the gnevor agrees to WIthdraw hIS human nghts complaInt forthWIth. 6. The parties agree that thIS Memorandum will be made and [sic] Order of the Board. The Board then issued a deCIsion declarmg that the Memorandum would have the force and effect of an award of the Board. In January 1995, the employer posted an Office Support Clerk pOSItion m accordance with the terms of the Memorandum. The grIevor apphed for the posi- tion, as the Memorandum contemplated he could. A selectIOn panel constituted m accordance with the Memorandum mterviewed the grlevor and ten other can- dIdates. The panel ranked the grievor fourth out of the eleven candidates. After the competition closed on March 30, 1995, the grievor was told that he had not been awarded the position. The grIevor then filed a grIevance dated AprIl 3, 1995 that saId, in part. Statement of Gnevance The Employer IS in violatIOn of ArtIcle 4 by Improperly denYIng me the pOSItion of Office Support Clerk whIch was posted VIa CompetItIOn No MH 9/95 The Employer failed to run the noted competItIOn In accordance WIth prOVISIOns of Art. 4. Settlement Desired The Employer award the pOSItIOn of Office Support Clerk ImmedIately The competitIOn referred to m the grIevance was the one prOVIded for m the Memorandum that gave the grIevor the right to partICIpate m that competI- - 3 - tIon and gneve If he was unsuccessful Portions of the gnevance omItted from the quotation above related to a claIm that imphedly challenged the enforceabil- Ity of the Memorandum. That claIm was abandoned when the grievance came on for hearing, as I noted in my deciSIOn of February 3, 1997 I also noted that after that claim and another Issue were dealt WIth It then emerged that the union would be alleging that the employer had breached both Article 4 and Article A of the parties' collective agreement m conductmg the competition and awarding the position m Issue. Counsel for the UnIon consented to the employer's request for an order drrectmg that the unIon prOVIde particulars of those allegatIons before hearing contmued. Accordmgly, I drrect that the UnIon prOVIde the employer WIth full partIculars of the allegatIons of fact on whIch it rehes in this proceedmg, including 1 details of the specIfic acts and omiSSIOns commItted by or on behalf of the employer that the UnIon alleges constitute a breach of the collective agreement, 2. the names of the mdividuals alleged to have committed any such alleged acts, and 3. the tunes when and places where such acts were allegedly commItted. These particulars are to be dehvered to counsel for the employer wIthm four weeks of the date of thIS order, or wIthm such further tune as the partIes agree. The hearing of the grIevance WIth respect to the conduct and result of the competItion IS adjourned to April 23 and 24 and May 12, 1997 Thereafter, the union delivered 22 paragraphs of partIculars of "the an- ticIpated eVIdence of AmJad Bhatti." The first 14 paragraphs deal WIth events up to and includmg the settlement, 10cluding alleged dIscnm1Oatory treatment of the grievor by Ehzabeth Mason, who 10 1993 became manager of the office at wmch the gnevor had worked in an unclassIfied pOSItIOn for several years. The last 7 paragraphs alleged as follows. Matenal Facts 15 In comphance WIth the Board Order, the Mmistry posted a permanent pOSItIon of Office Support Clerk (lvImIstry's Book of Documents, TAB 3) AmJad BhattI was gIVen the right to compete even though he was no longer working m the pubhc servIce. The postmg went up January 13 1995 and by letter dated January 27, 1994 BhattI apphed for the pOSItIOn. Sometune m January 1995 Bhatti encountered Braham Kapal m the Scarborough Town Centre. Kapal stated "management doesn't want you to have thIS pOSItion. They will offer It to another person" Kapal dId not say who the other indIvidual was, but he dId encourage Bhatti to apply anyway - 4 - 16. Later BhattI called Kapal at home to tell hIm that he couldn't see the sense m preparmg for hIS upcommg intervIew In that phone conversatIon Kapal stated "the job is fixed." Bhatti beheves Kapal taped the conversation. 17 At 0900 hrs. on March 9, 1995 BhattI attended his Job interview Pnor to the commencement of the interview, Bhatti was handed a Job descnptIOn to examine however he was not gIVen enough time to reVIew it. Neither was he given enough tune to properly fill out the reference check form supphed to him. 18. When the mtervIew began BhattI recogmzed Kapal on the panel however he dId not know the other two members, one of whom was a woman. That woman stated to Bhatti "we know your SItuatIon and its gomg to be confidential." From this, BhattI mferred that the female panel member knew all about his gnevance hIStOry and drlficultIes WIth Mason. The entrre interview lasted for 15 20 mmutes and no one asked BhattI about his preVIOUS 6 years experience as an Office Support Clerk. Bhatti understands that his years of experience in the position was [sic] not gIVen any weight whatsoever 19 By letter dated March 30, 1995 Bhatti was informed that he had not been successful in the job competition. Earl Abalajon was awarded the positIon even though he had considerably less OPS experience than Bhatti. More sIgmficantly, AbalaJon had only 3 months of expenence as an Office Support Clerk WIth Rent ReVIew ServIces whereas BhattI had several years expenence domg the work of the exact pOSItion. 20 The MmIstry conducted file reVIews of other candIdates however, no file review was done for BhattI. On April 3, 1995 BhattI flied the grIevance currently before thIS Board. Allegations: 21 The Dmon alleges that the MmIstry dId not enter mto the dIsputed Job competItIOn m good faith, that the panel had predetermmed that Bhatti would not be successful. The panel members were bIased due to dIscrimmatory VIews inherited from other management staff, specnically Ehzabeth Mason who made racIal slurs regarding Bhatti and openly engage m office practIces that excluded BhattI. 22. Numerous employees, Jumor to BhattI were given permanent pOSItIon Zara Mohammed Nadia, Shiv Anand, Arnie, Tom. DespIte his years of servIce and good performance record, BhattI was unsuccessful m becommg permanent. BhattI beheves that the MmIstry's VIew of hun was prejudIced because of hIS colour, first language, ethmcIty, and country of ongm. The hearmg proceeded thereafter The grIevor testIfied for the umon.The three members of the competitIOn panel testIfied for the employer For purposes of thIS deCISIOn It IS unnecessary to reVieW the testimony gIven, except to note that umon counsel elICIted admIssIOns from the competition panel members that the rankmg of candIdates mtervIewed was based solely on marks aSSIgned to candIdates' answers to questIOns asked m theIr mtervIews, that personnel files 5 - :/ were not revIewed for all candIdates nor by all panel members, that candIdates' supervIsors were not contacted unless named by the candIdates as referees, and that reference checks would only have affected the results If the references were negative (and none were) Durmg closmg argument, umon counsel asserted that the employer had breached ArtIcle 4 of the collective agreement because 1 It failed to take all reasonable steps when considenng quahficatIOns and abihty to perform the reqwred duties, and, 2 It dId not enter into the job competition in good faIth, m that the Ministry was prejudiced agamst him, the panel members had inher- Ited the dlscnmmatory VIews of Ehzabeth Mason and It had been pre. determmed that the grievor would not be the successful candidate. The first branch of the argument was that the competition was flawed because the employer gave no weIght to whether the candIdates had performed the very Job m issue (independent of marks assigned to answers to questIOns about the Job), nor to theIr supervisors' appraIsals of theIr Job performance (eIther by con- tactmg the supervisors or by assessmg the supervIsors' performance appraIsals m the candIdates' personnel files) The submissIOn was that m these respects the competitIOn was not conducted in comphance with ArtIcle 4 as mterpreted m MacLellan and Degrand~s, 506/81 (Samuels) and other Board decIsions, that these flaws materially affected the outcome of the competition and were there- fore grounds for rehef even ~f the dec~swn was untamted by any of the alleged bad faah or d~scnmmatory motwatwn. It was this aspect of the argument by whIch employer counsel saId she had been caught by surpnse. Employer counsel saId that up to that pomt she had understood that the umon's case rested entIrely on the allegatIOns of bad faIth and dlscnmmatory motivatIOn referred to m the last two paragraphs of the umon's partIculars She observed that the umon's "new" claIm m effect alleged a VIOlatIOn of sectIOn 43 of ArtIcle 4 of the collective agreement in force at the time the Memorandum was - 6 - sIgned. The only sections of ArtIcle 4 that sectIOn 337 of that agreement made applicable to unclassIfied employees were sections 4 1 (whIch provides for the advertising of vacancIes and acknowledgement of apphcations) and 44 (which provides that apphcants will get tIme off wIth pay to attend mterviews) Thus, unclassIfied employees had only limited rIghts to challenge the result of a compe- tItion. Accordmgly, she said, the grlevor could not grIeve about flaws that did not involve bad faith or discrImmatlOn. Union counsel had submitted that the Memorandum imposed an inde- pendent contractual obhgation on the employer to conduct the competItIOn m ac- cordance with ArtIcle 4, that any breach of that obligatIOn was properly the sub- ject of complaint by thIs grievor, and that particulars of the alleged breaches had been given, as required, in paragraphs 18, 19 and 20 of the union's particulars. Although employer counsel acknowledged that the failures to assIgn weIght to job experience and to conduct file reVIews had been pleaded m para- graphs 18 and 20 of the particulars, she saId she had taken those to be pleadmgs of actions demonstratIve of bad faIth or dlscrlmmatory motIvation, not mdepend- ent grounds for reVIew of the result of the competItion on a grIevance by this grIevor, who had never been a clasSIfied employee. With respect to the uruon's submIssion that paragraph 3 of the Memoran- dum created an ArtIcle 4 obhgatlOn enforceable by the grIevor, and my questIon about the meaning she assigned to the provision m paragraph 2 of the Memo- randum for "full rIghts of grIevance under ArtIcle 4 If he IS not successful," em- ployer counsel saId that whIle she had not been mvolved m the negotIatIOn of the Memorandum she understood from those who had been that the partIes had had a shared understanding that the references In it to ArtIcle 4 were only to gIve the grIevor the grIevance rIghts that he would have had If he had been an unclaSSI- fied employee at the tIme of the competItIOn. It was m that context that employer counsel asked for an adjournment to another date m order to take mstructlOns on whether to seek to reopen the em- - 7 - ployer's case to mtroduce eVIdence concernmg the negotiatIOn of the Memoran- dum, and perhaps also additional eVIdence with respect to the conduct of the competItIOn. Umon counsel opposed the request on the basIs that the gnevance had clearly been based on Article 4 without hmltatIOn, and that further delay would prejUdICe the grievor The order made on the first day of hearing requIred only that the umon dehver partIculars of the allegatIOns of fact on which It rehed, not of the argu- ments It proposed to make on the basis of those facts. Accordmgly, the partlCu- lars it dehvered dId not restrIct the umon in the way employer counsel sug- gested. In light of employer counsel's claim, however, umon counsel's assertion on the first day of hearmg that It rehed on both ArtIcle 4 and ArtIcle A mIght not have alerted employer counsel that the union could be taklng the positIOn in question, nor might the partIculars delivered by the union thereafter There had not been any pomt prior to argument at wluch the union had expressly asserted that the grlevor was entitled to rehef even If there had been no dIscrlminatIOn or bad faIth. Equally, there had been no pomt at which the union had explicitly hmIted the baSIS of ItS attack on the competition decisIOn to the bad faith and dlSCrlmmatory motivatIOn that it had alleged. On reflection, It seemed to me that the questIOn whether the employer should be allowed to mtroduce further eVldence was inextncably bound up wIth whether It was true, as employer counsel was allegmg, that the partIes had had a shared understandmg that the Memorandum would only gIve the grIevor the grievance rights that he would have had if he had been an unclassIfied employee at the time of the competitIOn. I understood employer counsel to be saymg that the claim that there had been thIS shared understandmg was not based sImply on the personal behefs of the employer's negotiators about the meamng of the words of the Memorandum m a context disclosed by the eVIdence already before me. From her answers to my questIOns, I understood employer counsel to be saymg that thIS clmm mIght be based, at least m part, on the words and conduct of the umon's representative durmg the negotiatIOn of the Memorandum. I say - 8 - "mIght be" because counsel said she had not had the opportumty to Investigate the matter herself and determIne the preCIse basIs of the InstructIOn she had been gIven that there had been thIS shared understandIng If It were true that by words or conduct the umon's negotiator had repre- sented or agreed that the Memorandum would only give the gnevor the griev- ance rIghts that he would have had If he had been an unclassified employee at the time of the competitIOn, then the heanng would be cast in a different light. However unsurprised I might have been by the argument In issue, knowIng only what had taken place In the hearing before me, the employer's surpnse would be understandable If there had been such actions by the umon's negotiator at the time the Memorandum was negotiated. Employer counsel's InabIhty to gIve par- ticulars of such words or conduct Immediately would be equally understandable, given that she had not negotIated the Memorandum on behalf of the employer GIven all of that, it appeared that refusing the employer the adjournment requested mIght cause it greater prejudice than the delay could cause the grIevor The only remedIal claIm here is for monetary compensatIOn and surplus rights, SInce It IS common ground that If the gnevor had been awarded the job In April 1995 he would have been surplused out of it in or about June 1996 If It happened that the grievor was entItled to those remedies, delaying that outcome would hkely cause less harm than the employer would suffer If it happened that there was convIncing evidence of the umon actIOns alleged and the employer was demed the opportumty to adduce it. AccordIngly, I adjourned the hearIng on terms that the partIculars em- ployer counsel was not then able to prOVIde be dehvered, deferrIng my deCISIOn whether the hearIng would be reopened to permIt further eVIdence until the na- ture of the new eVIdence could be made clear I dIrected that 1) The employer is to adVIse the Board and counsel for the umon by September 19, 1997 whether it is seekmg to reopen the hearmg a) to adduce eVIdence WIth respect to the negotIatIOn of the mmutes of settlement, b) to adduce further eVIdence WIth respect to the Job competItIOn. - 9 - 2) If the employer advIses that It wishes to reopen the hearmg, then for each witness it wIshes to call in a reopened hearmg It IS to provIde the Board and counselfor the union, by October 17,1997, a statement of the eVIdence that It expects the wItness to gIve m chIef, set out in sufficIent detail that the employer would be prepared to have the statement stand m place of the witness's testimony m chief. 3) If the employer advises that it wishes to reopen the hearmg, then by November 14, 1997 the umon 18 to advIse the Board and counsel for the employer whether It opposes the requested reopenmg m whole or in part. 4) On the next hearmg date - November 26, 1997 - I will deal wIth any outstanding dIspute with respect to whether and to what extent the hearing may be reopened, and will begin hearing such addItional evidence as the union has consented or I determine that the employer may call, as well any evidence the umon wIshes to call in response. These directIOns were confirmed m a letter to counsel dated September 24, 1997, in which I made the following observatIOns about paragraph 2 [I]t IS my intention that the statements contemplated in paragraph 2 set out the details of the events about which the witnesses would testily - who said or did what to whom and where and when they saId or dId it. An assertIOn that [the employer's negotiator) understood or beheved that the language of the [Memorandum) had a particular meaning will not advance the enquIry unless the factual basis for her behef is not already before me. If her behef was based on something more than the language of the [Memorandum] and contextual facts already in eVIdence, then that addItional factual basis for her behef will have to be made clear in the statement. If she clarms that communications durmg the negotiation of the [Memorandum) lent the words of the resultmg document a meanmg they might not otherwise have had, those communicatIOns will have to be identllied wIth particularity' what was said or done, when, where, by whom, to whom. Dated at Toronto tills 6th day of November, 1997 .