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HomeMy WebLinkAbout2005-2043.Cartwright.05-10-20 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2005-2043 UNION# 2003-0234-0126 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Cartwnght) Union - and - The Crown In RIght of Ontano (Mimstry of Commumty Safety and CorrectIOnal ServIces) Employer BEFORE Manlyn A. Nairn Vice-Chair FOR THE UNION Stephen GIles Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Rena Khan Staff RelatIOns Officer Mimstry of Commumty Safety and CorrectIOnal ServIces HEARING October 6 2005 2 DeCISIon The partIes have agreed to an expedIted medIatIOn-arbItratIOn process to determIne gnevances at the Maplehurst CorrectIOnal Complex and Vamer Centre for Women. It IS not necessary to reproduce the entIre protocol here Suffice It to say that the partIes have agreed to attempt to resolve matters at medIatIOn, faIlIng whIch, they have agreed to utIlIze an expedIted arbItratIOn process In preparatIOn, each party provIdes the Vice-Chair wIth wntten submIssIOns one week pnor to the heanng. Those submIssIOns Include a statement of the facts, as well as the argument (supported by any authontIes) on whIch each party Intends to rely At the heanng, oral eVIdence IS not called, although the Vice-Chair may request further InformatIOn or documentatIOn. In addItIOn, If It becomes apparent to eIther party or to the Vice-Chair that the Issues Involved In a partIcular case are of a complex nature, the case may be taken out of the expedIted process and processed through 'regular' arbItratIOn. Although IndIVIdual gnevors often wIsh to provIde oral eVIdence at arbItratIOn, the process adopted by the partIes provIdes for a thorough canvaSSIng of the facts pnor to and at the heanng, and leads to a fair and efficIent adJudIcatIOn process In thIS case, the gnevance asserts that the employer IS In vIOlatIOn of the collectIve agreement by denYIng the gnevor Robert Joseph Cartwnght, the opportumty to compete for the posItIOn of OperatIOnal Manager 16 ("OM 16") The employer raised an obJectIOn to the Board's JunsdIctIOn to hear thIS matter The umon argued that there must be a forum In whIch to have the matter determIned. There IS no dIspute that the OM16 posItIOn IS outsIde the bargaInIng umt. A gnevance filed before the PublIc ServIce Gnevance Board was dIsmIssed on the basIs that the gnevor was a member of the OPSEU bargaInIng umt. He was In an actIng OM16 posItIOn at the tIme hIS complaInt arose The avaIlabIlIty of a forum In these CIrcumstances IS not an Issue whIch I need detenmne The umon agrees that any JunsdIctIOn whIch the GSB may have IS lImIted to determInIng whether or not the employer acted In a manner that was dISCnmInatory or In bad faith. 3 AssumIng, and specIfically wIthout findIng, that the Board has such JunsdIctIOn, I am not satIsfied that the employer has so acted. On February 8 2003 the gnevor submItted an applIcatIOn to three OM16 restncted postIngs On February 19 2005 he was advIsed that he was not elIgIble for the competItIOn due to the IdentIfied restnctIOn. On February 23 2005 the employer re-posted the posItIOns wIthout the restnctIOn. That subsequent competItIOn closed on March 13 2005 On March 24 and 31 2005 the gnevor submItted a request to the employer to confirm that hIS applIcatIOn was stIll on file for the revIsed competItIOn. The employer had not revIsed the postIng numbers lendIng some confusIOn to the process However the gnevor was aware pnor to the cloSIng date of the second competItIOn that there could well be some questIOn regardIng the status of hIS applIcatIOn. In the normal course It would be Incumbent on an applIcant to actIvely satIsfy any such questIOn pnor to the cloSIng date In order to ensure that theIr applIcatIOn would be consIdered. The onus IS not on the employer and therefore the employer cannot be found to have acted In a dISCnmInatory fashIOn or In bad faith In these CIrcumstances ThIS gnevance IS therefore dIsmIssed. Dated at Toronto Ontano thIS 20th day of October 2005