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HomeMy WebLinkAbout2000-1405.Union Grievance.01-09-27 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1405/00 UNION# 00U125 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union Grievance) Grievor -and- The Crown In Right of Ontario (Ministry of Community and Social Services) Employer BEFORE Graeme H McKechnie Vice-Chair FOR THE GRIEVOR Mlhad Fahmy Counsel Eliot, Smith Barristers & Solicitors FOR THE EMPLOYER Ferlna MUrjl Legal Services Branch Management Board Secretariat HEARING June 15, 2001 This grievance lodged by OPSEU, arises out of a Job competition The agreed statement of facts IS shown as Appendix A to this decIsion Briefly stated, the Issue IS whether the Employer violated the collective agreement when It offered the position of Program AdVisor, Early Childhood Education, to Ms Van Noort. Ms Van Noort, who IS the Incumbent, was adVised of the hearing and chose not to attend As the agreed statement of facts Indicates, the Job competition was held, three persons were Interviewed and the Individual who placed first In the competition accepted the position, then declined It. The Employer then offered the position to the second place candidate, and that candidate, Ms Van Noort, accepted No eVidence was called and the parties proceeded directly to argument. The relevant two articles of the collective agreement are 611 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 All OPSEU bargaining unit applications will be acknowledged, where the applicant has Identified himself or herself as an employee In an OPSEU bargaining unit. Where practicable, notices of vacancies shall be posted either electronically or on bulletin boards and, upon request, shall be provided In large-sized print or braille where the posting location has the capacity to do so 612 Notwithstanding Article 6 1 1 above, the Employer may hire qualified candidates who previously applied for a similar vacancy or new position In the same classification at the workslte from which the vacancy originates provided that a competition was held dUring the prevIous SIX (6) months The Employer may ultlllze thiS provIsion to fill a vacancy or vacancies at the workslte(s) from 2 which the vacancy or vacancies originate, regardless of the workslte of the applicant. The Employer In these circumstances IS not required to post or advertise the vacancy or new position Where the Employer uses this provIsion, It shall notify the Local Union President where the vacancy or new position eXists, ten (10) working days prior to filling the vacancy or new position The Union argues that Article 6 1 2 must be read In the context of the whole of Article 6 governing posting and filling of vacancies It IS the Union's argument that Article 6 1 2 cannot be applied to persons who are excluded from the OPSEU bargaining unit unless another Job posting and competition are completed In the Instant case, as the agreed statement of facts Indicates, the Incumbent was In a position of management excluded employee for a number of years and then worked within two OPSEU Bargaining Unit positions on temporary assignment and / or secondment. The Union argues that Article 6 1 2 contains three particular criteria which must be satisfied prior to the Employer being able to fill a vacancy without posting first, the competition must be held within the prevIous SIX months, second, the qualified candidate must have been one of the applicants and finally ten days notice must be given to the Union However, It IS also the Union's view that Article 6 1 2 must be read narrowly and applied only to bargaining unit members If there IS no bargaining unit member available, then a new posting and new competition must be completed 3 The Union directs attention to Article 6 3 1 In WhiCh, "seniority shall be the deciding factor," In filling the vacancy should qualifications and ability be relatively equal save and except the provIsions of Article 6 3 2 which provides for employment equity exceptions It IS the Union's view that If the Employer IS allowed to select an excluded employee without further posting, then a non- bargaining unit employee could be hired rather than a bargaining unit employee and no competition would have been held ThiS, In the Union's View, IS not appropriate given the language of the collective agreement. The Union argued that, In Article 6 3 1, the significance of seniority IS highlighted and If a bargaining unit member With equal qualifications and ability compared to a non-bargaining unit member emerged, the bargaining unit member would not be able to assert seniority over an excluded person and thiS could not be the Intention of that section of the collective agreement. In summary, the Union's position IS that Article 6 1 2 can only apply to bargaining unit members and If there are non-bargaining unit members or excluded members, a new posting and competition must take place The Employer argued that a management excluded employee IS only one category and there are non-OPSEU personnel who can apply for particular Job postlngs In ItS View, Article 6 1 2 IS clear and unambiguous First, the article states that the Employer can hire "qualified candidates" and there IS no limitation 4 that these must be OPSEU candidates Further, there IS no limitation on the scope of Article 6 1 2 as shown by ItS language The Employer's argument IS that Article 6 sets forth a particular procedure for the posting and filling of vacanCies, or new postlngs, and these are not limited to OPSEU members, they could be members of other unions or non-bargaining unit members Article 6 IS triggered by a vacancy and, In the Instant Situation, a vacancy arose under the OPSEU collective agreement and the Employer followed the procedure to post and fill the vacancy according to that article It IS the Employer's view that Article 6 applies to the bargaining unit position and not the particular candldate(s) who may apply for It. The Employer argued that If the Union's position were to be accepted, and the winning applicant vacated the position, the second place candidate, who may not be an OPSEU member, could have higher qualifications than the third place candidate who was an OPSEU member; however, the Employer would have to re-post the position and go through another competition or choose a lesser qualified Individual ThiS, In the Employer's View, cannot be the Intent of the collective agreement, nor IS It the language of the particular article The Employer argued that If the parties wanted to limit the scope of Article 6 1 2 they could have put an OPSEU qualifier Into It and thiS would therefore restrict It; however, because no such qualifier eXists, the article has no restriction other than what the clear language Indicates 5 The Employer argues that Article 6 3 1, which Indicates that seniority will be the deciding factor If qualifications and ability are relatively equal, IS not superceded by Article 6 1 2, rather, Article 6 1 2 IS an exception to article 6 1 1 That IS, It IS an exception to the general posting rule The Union argued In reply that If the position IS not re-posted and a new competition undertaken, bargaining unit members who did not apply for the first competition would be disadvantaged As a result, It IS the Union's position that the seniority Issue refers to potential candidates, not those who were In the first competition The agreed statement of facts does not complain that the first competition was flawed In other words, the three persons who were Interviewed were ranked appropriately following the competition for the particular position of Program AdVisor, Early Childhood Education As a result, there IS no Issue before me that Ms Van Noort, who placed second In the competition, was more qualified, or more able, than the third place applicant. The Issue IS simply whether, after the first place applicant vacated the pOSition, the Employer was required to post the position again and hold another competition After reviewing the arguments, I come to the conclusion that the language of Article 6 1 2 does not require the Employer to re-post the position and hold 6 another competition as the Union has argued provided that, the Employer held the competition dUring the prevIous SIX months, that the Employer filled the vacancy at the work site from which the vacancy originated and that the Employer notified the Union In the appropriate time period, which are the criteria In Article 6 1 2 of the agreement. In the Instant case, the Employer followed all of these requirements The Union's argument IS rejected based on the clear language of Article 6 1 2 of the agreement. The Important sentence for the Instant grievance IS as follows "The Employer may utilize thiS provIsion to fill a vacancy or vacancies at the workslte(s) from which the vacancy or vacancies originate, reqardless of the work site of the applicant. (emphasIs added) Article 6 1 1 and ItS following sections come Into operation when a vacancy eXists and there IS no restrictions that the applicants be members of OPSEU, another union or from outside the bargaining unit. There IS no suggestion that the Incumbent In the Instant situation was barred from making application There was also no Indication that the Incumbent was barred from taking part In the competition The Issue IS simply that once the competition was completed and the first place applicant vacated the pOSition, did Article 6 1 2 allow the Employer to select the second place applicant Without further posting? It IS my respectful opinion that Article 6 1 2 does not have any reference to OPSEU and as a result, the Employer IS able to select from among the qualified applicants given the criteria that Article 6 1 2 clearly Indicates 7 The Union argues that the Issue of seniority was a matter of concern, however, that Issue IS one that would have to be taken up In a specific grievance and IS not the Issue In the grievance before me There IS no Incompatibility, between Article 6 1 2 and Article 6 3 1 of the collective agreement. The Union argued that re- posting the position and holding another competition would allow non-applicants a further opportunity and to bar them would potentlonally disadvantage them with respect to non-bargaining unit applicants The language of the article does not bear out the Union's agreement. There IS no language which would provide a second chance for persons who failed to submit applications when the vacancy was originally posted Article 6 1 2 IS an exception to Article 6 1 1 and nothing more If two candidates are substantially equal, then Article 6 3 1 will be triggered and the Issue of seniority would then have to be addressed There IS no Indication In the current grievance that there was an Issue of seniority and therefore to address It In a hypothetical way would be Inappropriate As a result, based on the arguments presented, I find that the grievance must fall and IS therefore dismissed Dated at Toronto, thiS 2ih day of September, 2001 (f1j1]L---- Graeme H McKechlne, Vice-Chair 8 APPENDIX A GSB #1405/00 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (OPSEU) - and- The Crown In Right of Ontario (Ministry of Community and Social Services) AGREED STATEMENT OF FACTS Before. Graeme H McKechnie Vice Chair, Grievance Settlement Board Counsel for OPSEU. Mlhad Fahmy Eliot, Smith Counsel for MCSS. Ferlna MUrjl Legal Services Branch Management Board Secretariat AGREED STATEMENT OF FACTS Competition CER - 14 - 99 1 On February 1,2000 the Ministry of Community and Social Services (MCSS) posted one vacancy for the position of Program AdVisor, Early Childhood Education (ECE) at the Newmarket Office The relevant Job posting number was CER - 14 - 99 2 On March 27, 2000 Interviews were held for Competition CER - 14 - 99, Program AdVisor ECE for the Newmarket Office The three Individuals who were Interviewed were Donna Readman (placed first), Debbie Van Noort (placed second), and Carla Keays (placed third) 3 On April 1, 2000 Ms Readman was offered the position of Program AdVisor ECE pursuant to Competition CER - 14 - 99, which she accepted 4 On May 12, 2000 Ms Readman was notified that she was successful In obtaining a lateral transfer (same position) to the Barrie Office 5 On June 7, 2000 a letter was sent to Bill Warren, OPSEU Local 310 President, as notification of the Ministry's Intention to offer the vacancy created by Ms Readman's departure to Ms Van Noort (who placed second In Competition CER - 14 - 99) The letter to Mr Warren Indicated that the placement was In accordance with Article 6 1 2 of the operative collective agreement. 6 On June 21,2000 Ms Van Noort was offered the position of Program AdVisor ECE In the Newmarket Office, pursuant to Article 6 1 2 Ms Van Noort accepted the position, which was to be effective June 26, 2000 7 At all relevant times, and particularly at the time of the CER - 14 - 99 competition posting (February 2000) and at the time Article 6 1 2 was applied (June 2000), Ms Van Noort was working In an OPSEU bargaining unit position and was paYing OPSEU union dues 8 The position of Program AdVisor ECE IS an OPSEU bargaining unit position Background of Debbie Van Noorl's Employment History. 9 For the period of June 1981 to January 1999, Ms Van Noort occupied various positions within the category of management excluded employees 10 For the period of January 1999 to September 1999, Ms Van Noort occupied the position of Licensing Officer (OPSEU Bargaining Unit position) pursuant to a temporary secondment agreement. 11 For the period of September 1999 to June 25, 2000, Ms Van Noort occupied the position of Program AdVisor ECE In the Central East Region on a temporary assignment (same position as competition CER - 14 - 99) 12 For the period of June 26, 2000 to present, Ms Van Noort occupies the position of Program AdVisor ECE In the Newmarket Office ThiS IS the position Ms Van Noort was placed In, pursuant to Article 6 1 2 of the operative Collective Agreement.