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HomeMy WebLinkAbout1990-0579.Hall.92-02-12 ,c ;r .a ONTARIO EMPLOY~S DE LA COURONNE ... CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TOFlONTO, ONTARIO. M5G lZ8 TELEPHONE/TE:LEPHONE (416) 326-1388 180. RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZIJ FACSIMilE 1T(:LECOPfE (416) 326-1390 579/90, 580/90 IN THE HATTER O~ AN ARBITRATION Onder THB CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before - THE GRIEVANCE SETTLBHENT BOARD BETWEEN OPSEU (Hall) Grievor - and - The Crown in Right of ontario (Ministry of Correctional Services) Employer i BEFORE: M Watters Vice-Chairperson M. Lyons Member M. O'Toole Member ~OR THE P. Chapman GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE A. Pruchnicki EMPLOYER Staff Relations Officer Grievance Administration and Negotiations Ministry of Correctional services HEARING June 21, 1991 october 21, 1991 .. 'l -\ I ... This proceeding arises from two (2) grievances both dated March 21, 1990 The grievor claimed therein that he was denied the opportunity to apply for two (2) vacant Bailiff positions ;n SudburYJ Ontario He requested, inter alia, that he be placed in one (1) of the positions At the commencement of the hearing, the parties filed an Agreed Statement of Facts We have appended this document to our Award Both parties supplemented these facts through viva voce evidence At the outset, the Employer raised two (2) preliminary objections with respect to the Board's jurisdiction to hear the merits of the grievances Firstly, it was submitted that the Grievance Settlement Board lacked the authority to entertain a complaint concerning a decision to restrict the area of search The Employer argued that such an issue fell within the scope of management rights as provided for in section 18 (1) of the Crown EmDlovees Collective BarQaininQ Act, R S 0 1980, Chapter 108, as amended (CECBA) Secondly, it was asserted that the matter was not properly the subject of an individual grievance as the grievor had not in fact applied for the positions We were consequently urged to conclude that he had not been affected in an immediate and tangible way The Employer asked the Board to provide a ruling on these preliminary questions prior to proceedin.9 to the merits In response, the Union requested that we reserve on the 1 <" -- ---) ') ... -1 prellminary issues until after the presentation of evidence and argument Counsel for the Union advised that she wished to present eVldence to establish that the Employer was estopped from relying on its management rights Counsel further submitted that the evidence would demonstrate the propriety of the individual grievances filed in this instance I After hearing and considerlng the respective submissions, the Board elected to reserve its decision on the preliminary objections until after the presentation of evidence and argument The grievor has been a Provincial Bailiff since 1982 Up unt i 1 January 1990, hlS posltion was classified at the Balliff I level At that juncture, he assumed the acting position of Offender Transfer Co-ordinator This position was classified at the higher Bailiff 2 level 80th of the aforementioned positions were attached to the Offender Classification And Transfer Unit in Metropolitan Toronto At the time of the grievances, all but two ( 2 ) provincial Bailiffs worked out of that office These latter bailiffs were connected to the Thunder Bay Correctlonal Centre Notwithstanding such placement, the plannlng and coordinating of inmate movements was done through the Toronto office It is clear from all of the evidence that the grievor was an excellent employee while in the positions referred to above Indeed, his acting posltion was made permanent in December, 1990 2 -- ~ \ ) , ,. The gn evor, as ear1y as 1987, advised the Employer that he was interested in returning to Sudbury This interest was canvassed in all of his P P R 's from that year onward Additlonally, it formed the subject matter of numerous discussions with different members of management The grievor's interest in returning to his home town arose as a consequence of his parents poor health The Board was advised that his father has cancer and that his mother suffers from a heart condition The grievor wlshed to return to Sudbury so that he could be close to his parents He indicated that he returns there at least twice a month in order to be with them On several occasions prior to the competitions here in issue, the grievor had conversations with Mr A& Huson, the Superintendent of the Sudbury Jail, concerning the possibility of transferring to that facility as a Correctional Officer 2 Such a step would have constituted a demotion for the grievor It would also have required shift and weekend work The grievor testified Mr Huson advised hlm that he didn't anticipate any problems in hlS winning a job competition given his record and experience At or about that time) the Jail was to receive an lncrease in complement Ultimately, the grievor did not pursue this opportunity APparently, his wife was reluctant to leave her job In Toronto in view of the uncertainties inherent in the Sudbury position 3 r -- f". \ \ ) '" The grlever flrst learned in the Fa11 of 1988 that Bailiff positions might be estab,ished in Northern Ontarlo This development was the sUbject of discussion at a meeting in May, 1989 All of the bailiffs were in attendance at thlS meetlng It was the grlevor's evidence that Mr T Watson, the Manager of the Offender Classification And Transfer Unit, announced a decision had been taken to create a Northern Bailiff's office which would be lecated in either Sudbury or North Bay The griever questioned Mr Watson about his eligibility to compete for one (1) of the new positions He stated that his Manager , then told him that members of the existing unit would be permitted to compete It was the griever's further evidence that this assurance was repeated by Mr Watson during the lunch break of a meeting held in June, 1989 The griever received faxed copies of the postings on March 5, 1990 He then learned for the first time that the competitions were restricted to the Ministry's classified staff at the two (2) facilities in question The Opportunity Bulletins for the Provincial Bailiff positions at the Cecil Facer youth Centre and the Sudbury Jail are appended to the Agreed Statement of Facts as Schedules · A' and · B' , respectively The required qualifications for both positions were stated as follows Significant experience as a Correctional Officer 2 wlth solid background ln security practices and procf3dures, normally acquired through several years experience and exposure to escort duties and transferring of inmates/young offenders, valid Ontario Driver's Llcense and acceptable driving record, good 4 - \ I ~ report writlng skills, acceptable attendance and work record, willingness and ability to travel extensively throughout Ontario on trips of up to four days duration, knowledge of various warrants required by legislation The grievor subsequently spoke by telephone with Ms Paullne I Radley, the Regional Director of the Northern Region, with I respect to the decision to restrict the area of search It was the grievor's evidence that Ms Radley was unwilling to modify the area of search so as to allow him to apply As a result of this conversation, the grievor did not apply for either of the two (2) positions It was the grievor's recollectlon that postings were Province-wide for many of the vacancies which had previously been filled in the Toronto Bailiff's office The grievor asserted that, had he been advised in May, 1989 that the competitions would be restricted to the classified staff at the Cecil Facer Youth Centre and the Sudbury Jail, he would most likely have applied for a job as a Correctional Officer 2 at the latter facility He further stated that he would have changed his address to the Sudbury area The grievor believed that he would have been successful had he been permitted to compete fqr the positions This belief was premised on his past record and experience He noted that, at the time of the competitions, none of the classified staff at the two (2) aforementioned facilitles were Bailiffs 5 .;-.. -. \ I ) - <:j Mr J Dick, another Bailiff in the Toronto office, was present at the May, 1989 meeting during WhlCh the establishment of a Northern Bailiffs Unit was discussed He testified that Mr Watson 1ndicated that the M1nistry was considering establishing such a unit in either Sudbury or North Bay He further stated that Mr Watson, 11"1 response to a question, advised that interested persons in his unit would be able to apply when the positions were posted Mr D1Ck recalled a slmilar statement being made at the June, 1989 meeting Mr R Hudd, a Senior Bailiff 1n the same office, had an identical recollection as to what was said by Mr Watson during the May, 1989 meeting As noted, at the time material to this proceeding, Mr Watson was the Manager of the Toronto Unit His formal jOb title was then Manager, Program Support And Coordination - Offender Program Branch Mr Watson testified that the expansion of the Northern Bailiff system was discussed at the May, 1989 meeting He there advised that there could be a change in the Bailiff runs This was attributed, in part, to the establishment of the Northern Treatment Centre Mr Watson explained to those at the meeting that this development might result in the creation of a separate Bailiff organization to service some of the needs of Northern Ontan 0 From h1S perspective, the plans were then at the "development stage He was not sure at the time whether the unit would be located in Sudbury or North Bay 6 -.." \ '" Mr Watson acknowledged that, in the midst of the exchange, the grievor asked whether the Bailiffs present at the meeting could apply for the new positions There was, apparently, some concern on the part of the Bailiffs that they might not be able to do so as competltlons within MCS are frequently restricted to a particular institution In his evidence, Mr Watson suggested that the question posed was difficult to answer as there were many uncertainties existing at the time For example, it had not I I then been determined whether the Toronto Bailiffs would report to I the new Head Office in North Bay or whether they would be attached to a separate regional structure in Toronto Further, Mr Watson emphasized that the creation of the northern positions was simply an idea~ at that juncture He testified that all of this uncertainty was in his mind when he responded to the grievor's inquiry He did concede that he could not be certain that a 11 of the variables were communicated to the group Nevertheless, Mr Watson indicated he was confident he advised those in attendance that they could apply for the positions if the Bailiffs were attached to Head Office and if the positions were in North Bay He also premised his response on the assumption that he would be the person in charge of the unit In summary, it was Mr Watson's assessment that his answer to the grlevor contalned a lot of ifs~ or qualifiers He acknowledged that he could not be certain as to what the grievor took from his response Ultimately, lt was Mr Watson's position that he could not then promise something he was unable to control 7 I -, 'I J ;;) Mr Watson advised that most of the competitions for Bailiff positions withln the Toronto Unit had a forty (40) kilometre restriction in the area of search He could recall one (1) exceptlon relating to employment equity In that instance, the limited term positions were posted across the Province Relocation expenses were not provided to the successful app 1 i cants Mr Watson left the Southern Bailiff Unit in September, 1989 to become the Superintendent of the Northern Treatment Centre in Sault St Marie Before leavlng, he provided some input into the development of the Northern Bailiffs unit Ms Radley later asked hlm for further assistance with respect to the ,- establishment of that unit Mr Watson subsequentl'y recommended that it be separate from the Toronto Unit and that it report directly to the Northern Regional Office He did not have any role in the decision to restrict the area of search Lastly, Mr Watson advised that Correctional Officers are normally hired into Bailiff positions He expressed the opinion that a well-trained Officer would satisfy the minimum qualifications for such a position although some training might be required in respect of the transportation of inmates Mr B Roy, the Regional Manager for the Northeast Region, was advised by Ms 'Rad 1 ey in mid-May, 1989 that a Northern Bailiffs system would likely be established He was asked for 8 ~ his asslstance and input ln respect of the implementatlon of the project Mr Roy testified that he was strongly committed to service delivery in Northern Ontario H1S bias at the materlal time was to enhance and support programs within the region It was his judgment that the new service should be as northern as possible In this regard, he argued that Sudbury, and not North Bay, should be the base for the Northern Bailiff's Unit Ms Radley ultimately accepted that recommendation Mr Roy also viewed the creation of the unit as an opportunity to promote career advancement within the North He noted that northern institutional staff "never got a shot" at a lot of the positions offered when the Head Office was located in Toronto Mr Roy was responsible for the decision to limit the area of search Initially, he selected the Sudbury Jail and the Cecil Facer Youth Centre as they dealt with the two (2) population groups to be transported, namely, adult inmates and Young Offenders He then determined that there was a pool of sufficiently qualified candidates at both facilities to satisfy the Ministry policy as contained within Schedules 'E' and ' F' of the Agreed Statement of Facts More particulary, Mr Roy concluded that not less than three qualified candidates could be secured within both locations At the time, fifty-three (53) Correctional Officers were employed at the Jail) while one hundred and twenty-three (123) were employed at Cecil Facer Mr Roy testified that Correctional Officers in the North were very 9 \! . much" involved ln the informal transportation of inmates between institutions, albeit their trips might not be as long as those engaged ln by the Bailiffs It was his opinion that the transporting and escorting of inmates was an important part of the job of the Correctional Officer Mr Roy stated that he was never contacted by the grievor concerning the competitions for the two (2) positions in Sudbury The relevant provisions of the collective agreement read 4 3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties Where qualifications and ability are relatively equal, length of continuous service shall be a consideration 27 16 The Grievance Settlement Board shall have no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement Section 18 (1) of CECBA provides as follows 18 (1) Every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of foregoing, includes the right to determine, (a) employment, appointment, complement, organizatlon, assignment, discipline, dismissal, suspenSlon, work methods and procedures, klnds and locations of equipment and classification of positions, and (b) merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargalning agent, and such matters will not be subject of collective bargaining nor come within the jurlsdlctlon of a board - 10 --.-.---, _..h_ ___n.' _______.._____ ~ !! As stated previously, it was the position of the Employer that it possessed the exclusive right under section 18 (1) of CECBA to determine and restrict an area of search The representative of the Employer noted that article 4 3 of the collective agreement is silent on that issue She, therefore, asserted that the Board would contravene article 27 16 if we limlted the Employer's right to restrict an area of search The following awards were relied on in support of this submlssion lav i ~::me, 561/81 (Delisle), Calicchia, 0302/85, 0602/85 (Roberts) , Criops, 660/86 (Verity), HaYford, 1119/88 (Di ssanayake) J Carson/French, 582/89 (K i rkwood), Blake et al , 1276/87 et al (Shime) In LaviQne, the Employer elected to restrict the area of search to "probationary and regular staff of this Mlnistry and tre public within the geographical boundaries of the Elliott Lake, Walford and Blind River Patrols " The Board, in dismlssing the grievance, stated We are satisfied here that the employer, given the task of managing public funds, promotes business efficiency by limiting the area of search and we see nothing in the Collective Agreement that in any way l,mits that right" (page 6) In Criops, the Board stated "In the grievance before us, we are satisfied that the right to limit the area of search geographically arises from the statutory management rights provision contained in s 18 ( 1 ) of the Crown Employees Collective Barqaininq Act There is simply no 1 1 - ~ . ' \ I - ~ provision in Article 4 which in any way limits the right of management to determine the area of search Moreover, we do not agree with the Unlon's contention that following collective negotiations in 1984, the inclusion of Artlcle 4 5 changes the result Clearly, 4 5 does not expressly limit the Employer's right to restrlct the area of search In our opinion, the effect of Article 4 5 is to authorize the payment of relocatlon expenses, lf applicable, to a successful applicant Simply stated, we are not persuaded that the Lavigne decision is manifestly wrong In our opinion, that declsion, upheld as it was in Judicial review, is an insurmountable barrier to the Union's success In our opinion, the Employer has an obligation to operate in a reasonably efficient manner Restricting the area of search accommodates that objective Similarly, the Board cannot agree that the Employer's policy and practice in placing geographical limitations on the area of search is unreasonable or lnconsistent with the proper administration of Article 4 (page 9-10) A similar statemeQt is found in the Hayford award at page seven - ( 7 ) The Board there concluded "Accordingly, we find that the designation of an area of search is a management right flowing from section 18 ( 1 ) of the Act The grievor has been unable to point to anything in the collective agreement that fetters the exerClse of that right Therefore, the Board is without jurisdiction to deal with the merits of this grievance and the same is hereby dismissed This Board was urged to follow the approach reflected in the above-cited awards More specifically, we were asked to conclude that we lacked the jurisdiction to entertain a complaint regarding a restriction on the area of search 1 2 ~ \ \ , In response, counsel for the Union submitted that it would be wrong to "blindly follow past decislons of the Grievance Settlement Board Rather, it was argued that a panel should address all of the arguments in a given case and decide the matter on that basis Counsel asserted that this was the preferable approach as certain arguments may not have been consldered in the earlier cases We were referred to the award in Watts, 1340/90 (Stewart) and to the unreported decision of the Divisional Court in MCS and DUDuis (released April 19, 1990) ln support of this position In the former award, the Board stated For the reasons expressed by the Chairperson of this Board in the Blake decision, suora, the Board must be extremely hesitant in departing from its established jurisprudence However, the Board must consider all the arguments raised before it in reaching a decision in a particular case It cannot reject valid arguments solely on the basis that their acceptance will result in a decision that is inconsistent with a decision which did not address those arguments (page 10) It was further submitted on behalf of the Union that management's right to restrict the area of search is fettered by article 4 3 of the collective agreement More particularly, counsel suggested that the Employer could not limit the area of search in a way that would prevent it from giving effect to the primary conslderations in article 4 3, namely, the qualifications and ability to perform the required duties of the position It was the position of the Union that this argument had not been addressed in any of the awards presented by 13 .: ,- ~ l i \ I ": the Employer AdditionallYJ it was asserted that this Board could review the restriction placed on the area of search to determine if it was made pursuant to an honest exercise in managing the undertaking Counsel submitted that any decision taken to restrict the area of search must be premised on a legitimate business purpose From the perspective of the Union, this type of decision could be challenged if made in bad faith or in an arbitrary or discriminatory fashion We were referred to the following awards in support of these arguments Union Grievance) 0311/88 (Watters) . Da Costa, 570/84 (Samuels) Reference was also made to the decisions of the Divisional Court in both Laviqne and Crioos - Ultimately, it was the position of the Union that the decision to restrict the area of search prevented the Employer from giving effect to the primary considerations set out ln article 4 3 of the collective agreement It was further submitted that the initiative was not taken pursuant to a legitimate business purpose In this regard, the Union referred to the evidence of Mr Roy Counsel asserted that his bias towards the Northern Region reflected an inapproprlate and arbitrary preference for a particular group of employees It was suggested that Mr Roy's primary consideration did not relate to the qualifications and abilities of prospective candidates Indeed, counsel emphasized that the decision to restrict the area of search excluded those persons with current or prior experience 14 ( "- as a Bailiff She further submitted that Mr Roy did not sufficiently review the pool of employees existlng at the two (2) facilities to determine if they possessed the requisite qualifications for the jobs to be filled We were urged to conclude that Mr Roy's consideration of qualifications was merely II an afterthought given his predisposition to enhance career development within the North In reply, the Employer submitted that Mr Roy had properly addressed the issue of qualifications Firstly, reference was made to the Opportunity Bulletins included in the Agreed Statement of Facts The Employer representative argued that the quallfications outlined therein were directly related to the requirements of the positions It was noted that Mr Roy and Mr Watson both believed that significant experience as a Correctional Officer would satisfy the threshold set out in the Job postings Secondly, the Employer emphasized that Mr Roy had made the determination that three (3) qualified candidates could be secured from the two (2 ) facilities so as to comply wlth the Manual of Administration policy respecting the area of search Thirdly, the Employer argued that the promotion of career opportunities for Northern employees was a legitimate business purpose Its representative stressed that such opportunities were not previously available when the Bailiffs were located in the Central Region Lastly, it was submitted that the Union had not demonstrated any violations of article 4 It was the 15 . ~ \ \ ) -, .. Employer's position that article 4 3 "clicks in .. after the area of search has been established More specifically, the representative for the Employer argued that such article does not limit management's rights under section 18 (1) of CECBA We were asked to follow the prior decisions of the Grievance Settlement Board on this question The Board has considered all of the evidence and argument presented by the parties on this jurisdictional 1ssue In our judgment, the prior panels in Laviane, CrioDs and Hayford correctly determined that the collective agreement does not llmit the Employeris statutory right to restrict the area of search I We have not been persuaded that article 4 3 serves to fetter that - right i~ the manner suggested by the Union In any event, the Board is satisfied on the evidence that Mr Roy did in fact give sufficient attention to the presence of sUltable qualifications Ultimately, we accept that the qualifications set out in the Opportunity Bulletins were reasonably related to the job to be performed Mr Roy determined that a suitable number of candidates possessing such qualifications could be secured from both the Cecil Facer Youth Centre and the Sudbury Jail We think that this gentleman did sufficiently conslder the qualifications of prospective applicants from within this pool before the decision was taken to narrow the area of search Further, the Board 18 unable to conclude that Mr Roy's decision was made pursuant to an improper business purpose so as to justify our 16 ". - ...- . ) } intervention Without doubt, he wished to promote career advancement in Northern Ontario That alone is not objectionable Our decision on this aspect of the case would have been otherwise if he had pursued such objectlve in the absence of a suitable number of qualified applicants In summary. the Board finds that the proper focus for the competition was not diverted in this instance As previously stated, the Employer argued that the grievor's complaints could not be pursued through individual grievances as he had not applied for elther of the vacancies The Employer suggested that, as a consequence, the grievor had not been affected in an immediate and tangible way It was further argued that breach of an oral undertaking is inarbitrable The Employer relied on the following awards in support of this position Anderson, as cited earlier, Meades, 1322/88 (Kirkwood). Hall, 717/89, 867/89 (Roberts) , Pehlke, 791/85 et a1 (ROberts) In response. the Union asserted that the grievor had indeed been affected in an immediate and tangible way Counsel argued that his interest in the competition was real rather than hypothetical She emphaslzed that the grievor had consistently expressed his interest in Northern positions, inCluding the Bailiff positions which are the subject of this proceeding Additionally, the grievor attempted unsuccessfully to have the area of search expanded so that he could apply Counsel argued 17 -- , ( j t that the grievor's application was ultimately dlscouraged by Ms Radley's unwlllingness to amend the postings We were urged to I accept that he would have applied had she been otherwise inclined Given our disposition of this case, it is unnecessary to make a final determination on this lssue However, we would be disposed to reject the Employer's position In the Board's judgment sufficient evidence exists to establish the grievor's interest in the positions We accept that he never applied for same as a direct consequence of Ms Radley's refusal to modify the restriction on the area of search In view of this findin9J in conjunction with the prior expression of interest in securing a Northern position, we would conclude that he was personally affected by the Employer's decision such that the issue could properly be pursued through an individual grievance This conclusion is premised on the unique set of facts existing In this case The real lssue before us is whether the Employer is estopped from relying on) what would otherwise be, its management right to restrict the area of search It was the position of the Union that this question should be answered in the affirmative Counsel submitted, in this regard, that a 11 of the preconditions for the application of the doctrine were present 1n this case Firstly, 1t was clear that Mr Watson represented that members of 18 r- 1 \ his unit could apply for the positions being created Counsel noted that none of the Union witnesses could recall the qualifiers referred to in the evidence of Mr Watson Secondly, it was submitted that Mr Watson had the authority to make statements as to what would occur ln respect of the Northern Sa i 1 iff proj ect Counsel argued that it was reasonable for the grievor to believe that his supervisor could speak on the subject of which employees would be permitted to apply Thirdly, it was submitted that the grievor did rely on the representations to his detriment as he "let up" on his efforts to obtain another position in the North Further, he did not act to bring hlmself within a more limited area of search prior to the postings For all of these reasons, the Board was asked to find that the Employer could not rely on section 18 (1) of CECBA as a complete defence to the grievances The Union relied on the following authorities in support of its position Baars et al , 457/90 (Stewart) , H anwe 11 , 609/82 ( Swan) , Canadian National Railway Company et al v. Beatty et al , 82 eLL C 14, 163 (Ont Div Ct ) , Hookins, 373/86 (Springate) In Baars, the grievances related to the contracting out of work at the Ontario Science Centre The Employer there asserted, inter alia, that the Board was without jurisdiction to deal with the merits of the complaints In the course of considering the objection, the Board stated " in general, the matter raised in the , grievances at hand is a matter which falls within the 19 " ' -~ ~ , } 1 " exclusive discretion of the Employer There is one important exception to this general proposition however That exception is where the Union is able to establish that the doctrine of estoppel should apply so as to restrict the Employer in the exercise of its rights (page 7) The Board subsequently found that the Employer was estopped from exercising its rights to contract out employment except in accordance with certain written representations given to the Union In Hookins, the doctrine of estoppel was applied on the basis of verbal exchanges between the grievor and management personnel For all of these reasons, the Union asked that we place the grievor in one (1) of the positions posted Alternately, the Board was requested to order a reposting effective as of March 5, 1990 together with an ancillary order that the grievor be allowed to compete The Union submitted that any decision in the grievor's favour vis a vis the positions should be retroactive to the-date of the original competition Lastly, the Board was urged to attach conditions to the rerun of the competition to ensure that the incumbents did not receive undue advantage In response, it was the position of the Employer that the doctrine of estoppel was inapplicable to the instant dispute The thrust of the Employer's argument was that any information communicated by Mr Watson in May and June of 1989, was preliminary, rather than definitive, in nature It was noted 20 -- " \ I that the exchanges occurred at a time when the Northern Bailiffs Office was simply an idea, the implementatlon of which had yet to be confirmed The Employer's representative described the situation in May, 1989 as being in a "state of flux She noted that the ultimate headquarters for the Bailiff operation was then also uncertain The decislon on that issue would impact on the competition for Northern positions It was the Employer's submission that Mr Watson could only communicate general information about possibilities given the state of uncertainty at the time Further, it was suggested that the grievor was well aware of such uncertainty It was also argued that the Employer could not be estopped from exerclsing a management right and that any detrimental reliance needs to be established in respect to a party to the collective agreement in contrast to an individual Lastly, the representative for the Employer noted that the grievor never communlcated with Mr Roy who was the person responsible for the competitions in question The Board was referred to the following awards ln support of these arguments Bouchard et al , 1154/88, Brown, 0513/86 (Barrett) , Carter et 21 , 2291/86, 2292/86 (Knopf) The Board accepts the reasoning in Baars to the effect that the Employer may be estopped from exercising what would otherwise be a strict management rlght Further, we think that the representation, on which the estoppel is founded, may be made to an individual covered by the collective agreement Indeed, the 21 " ",-- \ ! :0 I Employer representative conceded, in response to a question from thlS Chalrperson, that the grievor could have relied on a firm representatlon from Mr Roy relating to the area of search In our judgment, the most significant question surrounding the applicabillty of estoppel is whether the grievor could reasonably rely on the statements made by Mr Watson in May and June, 1989 We are satisfied that the grlevor understood Mr Watson to say that he could apply for positions which might subsequently be created in Northern Ontario We are equally confident, however, that Mr Watson's response was given in the context of a developing and somewhat uncertaln situation The uncertainties included the following ( i ) whether the positions would ultimately be created in Northern Ontario. ( i i ) whether positions would be located in Sudbury or North Bay, (iii) whether the headquarters for the Bailiff operation would be located in Toronto, North Bay or elsewhere. and ( 1 v) when any positions created would be filled After considering all of the eVldence, we conclude that a representation made almost one (1) year prlor to the decision being contested, at a time that the Bailiffs Unit in the North was just being contemplated, cannot serve to bind the Employer's subsequent exerClse of its management rights The Board further accepts that the grievor understood that the future of the project was marked with some uncertainty and that its implementation was still in the early stages Seen ln this context. we conclude that the grievor could not reasonably rely 22 ~ . on Mr Watson's comments so as to restrict management's right to determine the appropriate area of search In summari, we have not been persuaded that a firm foundation exists for the application of the doctrine of estoppel This Board has considerable sympathy for the grievor's predicament His wish to relocate to Sudbury is understandable glven the unfortunate circumstances affecting his parents In view of the fact that the Employer was well aware of these circumstances, we question why more was not done in an attempt to accommodate the grievor's interests The parties may wish to consider the creation of a mechanism to permit lateral transfers in this type of situation For all of the above-reasons, the grievances are denied Dated at Toronto Ontario this 12th day of, February,1992 Chairperson 23 ", AGREED STATEMENT OF FACTS . In the matter of an arbitration between the Ministry of Correctional Services and Mr. John Ha~l, Provincial Bailiff, Offender classification and Transfer Unit, GSB File No. 579/90 and 580/90 The Ministry and the Union agree that the following statement accurately represents the facts in the above-noted grievance. 1 The grievor is currently employed by the Ministry of correctional Services at the Offender Classification and Transfer Unit, 185 Judson street, Toronto, as a Provincial Bailiff. 2. The grievor's continuous service date is October 30, 1978. 3. The qrievor's principal address at the time of the grievance was 62 Pringle Avenue, in the Town of Markham. 4. Attached as Schedule A, is a copy of the Opportunity Bulletin for Competition No. CI-5050/91. 5.t.,. Attached as Schedule B, is a copy of the Opportunity BUlletin for Competition No. CI-5051-91. 6 The grievor did not apply or submit a resume for the above- noted competitions. 7. The qrievor was not granted an interview for either of the above-noted competitions. 8 There were nine applications/resumes submitted by classified employees for competition No. CI-5050/90 (Cecil Facer) r all nine applicants were granted an interview 9. There were eight applications/resumes submitted by classified employees for competition No C!-5051/90 (SUdbury Jail), all eight applicants were grantea an interview. . 10 As of June 1, 1991, the grievor's address is 55 Cherrywood Drive, Sudbury, ontario. II. Attached as Schedule C, is the grievance filed by the grievor on March 21, 1990 pertaining to competition No. 5050/90. 12. Attached as Schedul,e 0, is another grievance filed by the I grievor on March 21, 1990 pertaining to Competition No. cr-S051j90. 13. Attached as Schedule E, is the Ontario Public Service Manual of Administration policy respecting the area of search. 14. Attached as Schedule F, is the Ministry of Correctional services Personnel POlicy and procedures respecting the area of search. -- ----~-- - --- --~- - _~__~_r~~T'""_ ___..._.--------,..,.,-..,....,....-----L-_ - --- r-, I [ RECEIVED 06/11 g~.~S 1991 AT '.16-3Z6SH5Z PAGE 3 (PRIHTED PAGE ~, J P3 '~~!:.. '91 ag:OO ~G}~T (tf) tcS 1 70S 673 B'370 ~ ~ (~ Ministry (,\t COfreG: I iona! Op )ortunity 3uletin Services ~ Miois~e des Annonce d'emp oi ServiC83 conecttonneltl C::.I.: JIM 08121 . ~.1I.1U111 ~~ Al"PtICAt'1ll6 ARE nI\m"Ji:D JCR 1:NK KlSl'J'U>>f (JP ; Pft?lINC[AL $tI..IW (IW 1tISD'IaC, ur.ltr'ICfJ : QQL IK2R 1!OO1'H axrRE ctASnCAr'lnt : MIOIDCW. S\ILIlF 1- fW.ARr : $l8.8C ~ ~19.83 _!IXIR ((Kg ~ SOIEIXIIt t .. (40 JIJlRS lID 1G!ZK) 'D'* ~ .........i""'tA 1d.U ba ~~ 1t.lC' tbe .ate, ~ ~ of ~, ~. _ JllIlM:I 8IotlQ _ ftaalIl itrII!Ita8~ ~ ~ ~ __ cL tb8 rt:JdbBn ~ 1d.t!l ~ cut at ... . ~. bt' JXId4 ..! all:. 0tlliU CIQti.e8 will "....,I~1 JJa:1Alns 1II1tb , nasiYing' iltd ~ eeouritr at all t:fmes; a:.r.c.wtezriDg :f~ ~ tlQr court ~: subdtt1ncJ ~ to tbe SaWff ~ oa ..n jnc1deQtII 11114 ......1. ~. ~TnC7Cl'I(l$: - ~~ ~ .. a O:aecUtnll ottJcer 1 witb eaU4 ~. in eec:uri.ty ~ .-lI ~f A08fIUy ~ tbD:::Jugh ~ )'CMW ~ Ii'ld ~ to CSCJart cS&alJ.8II ID1 t:awrCdDg elf imata/JQ:lflO ~1J; ~ CM.U1.o Od,,,... I~ _ ~ dd.dIJg ~ gac>> ~ cdtlg alc:W8. <<~1" ot~ M! WJdC ~ ~ -. ab1lit;F to t:I::eNl ed:ead"-'ty tbzoI~ Patario <Ill t:dps at tV m tcxc ~ watkln, ~-3lI of ~ ~.t:s Dl)Ilnd bf ~. .N.B.: P1eaCe 1.rllI1.:at:o JQIr cxnJl!lIlt 10 t:bel CZMIriDg lett:<< to a1.1.aw you&' ~1 tile to be ccessed tor pJrp>>es of ..1I,....,iDg JOUC' q....,H"C"""'llons. r.uJ.um tc: 1JlClt$ l'OIZ dI:laSeftt: v:l1J. ~t in )fttr ~~ beJAg IUf~UaS CID tbe basie af 1nb:mat1Od ~ ia yew: WU-1,,"\/~. QuAlifW "W'~t:s ca tlWlbla to aDd.t aD ~ by ~ 16, J.P90 \ tal \ 'i KDaSS'fI:! OF ~. SfdlYl.CIiS I'1LR <:1-5050-90 Pa'nONIL ~. ~~VR 199 tA1Qt~, 1Sr !UlOR SQJ!DRr. t'WI"ARJD PJB 519 AR&\ OP Sl!1lBaJ: '!hiM. c:aIIIplt1:i~ 14 ~tdaGi to claa.lr1e4 ~ of t:be HfJdstxy <It ~ Serricea 4t Qs:11 racer :t0l,ltft, C8ttxe.. \ ....,., 1I1!IDfI""" I~"'" lIO!i'I'IiI'; Dl\'m . K\ROf 5. 1990 a.c;sDG JWl'I $ )WQI 16. 1990 ru1J~ 10 ~ lQJI.'I'r . , ~ r<, ;. ':oJ - I -- ," [ RECEIVED 06/11 U'I."'1 1991 AT ,~~ 1'116-3Z6S9SZ PAGE Z (PRINTED PAGE } I ...J1J'I 11 '91 00:59 REG ()- eN) MCS 1 79S 673 e97B ~8 P2 - --- .... , ;'-..j ~ Minislry 01 Correctional Opportunity 3u etin ~ Services . Mlnls1e(o des Annonce d'emploi i Services : correctionnels r I t.N.. KUA 081 to ~.",.~ ~T1QS Alti :ltN1'1U) RIllllB J.IOS1'1'I(I( or . PJlCIIDI:::I:AL BlILIl7 (1D~ LDC:.a'JON , JiUBIIIr J.AI(. a.taS11'lCA'r1(J4 t ~ am.nr 1 SAUICI . '18.84 - fol9.13 1a: ~ ((IdII: IIBVIDI') ~ I . (.0 IDJRS fIER 1IPS] ~ ".--.,..;u ~ .u1. bo 1~""hl.., Ax tile ~ ~ ~ at pDW'ltG1.at. 'f~ IIIId ftIIWA -.la BNl &laallI ~~ ~ ~ Nod:beGatsD __ of ~ a..:u-... ~ ..uta C1ccllldCll1l4 cut or ana u-...... bf D)IId .., Cr 0tbliII" ~ .t.n jDOlI~t I....~~ with . ftCIIttYing aM ~ oec::uri.tr at: G1.l 1::iaIa: t::r:w.&l:rJog leaei2Il ~ 'tGE' oeun: ~~. rp.*-ftUftlJ ~ U) 1:be as;} f~~ ~ <1ft IIll ..-.oidcata all4 um8UlIl ~-"Cl._. w.umom:Q6. ~ ~~ Q8 4) ~ ~ 2 with tml14 ~~ in 88cuctt:y ~ 8IId ~, IllIDIIIllJ ~ trraIugt1 GCM::n1 ,)"C!llQ ~ eftd ex:pcdIJre tD acart cJutia _ "'--'flUiftg at .tm.tJ./JG.f19 of1 ""~l v.Ud Ofttll"S/:ll. Od.~. ~ tall ~~ <b:1~ ~ goc4 npoct witiaa oId.118t GCiCfVN.'. ~ si:I .m z.eca6b.....dfi . .nd Abi.I.1b' to ~t ~ 1:IuIc1ughaut Clllt3r>> lIB ~ of '9 to leur dof8 baI::Lan.J ~ of WIZioulI ~ ~~--' by 1~.ltltiDo. N.H.I PleaM Jadicate. yaur: 00RiCftt iA tba ~ ~ W elJaw l'OIr pullOoGel file to m: al- I ......., fix' ~ of lUUIJng fUU&'~. FaU1D:O t4 1nclo:Sa ]'OUX' ocntaIt. will z=ult JII tQa" ~ IBInw ~ az t:hIa 1Xla1& 0' ~ CllIl\ta1nId in 7CU!' ~_____ O...Ht'i'" tSppllC".-t& au:e Jnv1tB! U) S\Dld.1:'" ~ by Hm;b 16. 1990 tol \ HINIS1'2t' OP ~ SERYUzlI , /' na C'l-5051-to ! RmraW. ~~ ,'" UllCK stSII!Ia, 1Hr 1'UUI S(blJRf. Qll'AlU):) P3E '119 ~ OF SIWI:O(: "1't\1s ~d.c:D 1s& ~ to ...19lK1fi.ed ataff of the M!n:LI;tzy of ~ ~ at ~ JClll. - .u....~n..' UII4 ~ 0A't'2~ MIUQt 5, 1990 a.astftC pam: NAR:H lIi, 1990 ~ '10 DIKODEHr ~ .... 'j. , 0 ~ ---- ,\ '( s.~ c GRIEVANCE FORM $- , '1:1- C(CGO\O _......_..-... _L.,..._" '#_. .........-, ~..-. _.... ....._ - -........ --- .,:p .. -~~- ...... ~...~-... .-... ...- .-::. ......~ .......~ _._,~ .. ~ 6 TH COPY. TO BE GIVEN TO MANAGEMENT AT STEP 3 --- I ~ OPSEU -.~ ~ NAME .J 0/./ <oJ #",0 / ~ lOCAl NO,.;:) X;; ~ ~SS1,5 ~ ~ CL(~ -:~~~ - . .}. ...... - ._- .; TOWN! (l'VI, POSTAL L ~. ~ -"...r. J ~~ CITY .i .' / /1/- r r~'',tt2 COOE - ,- ..... 7 ~ - ------. -----.-.-. -..-- ------ '! ( AIIEA CODE) J.... " ( AREA CODe ) - l HOME TEL NO: ~ / ~ j // - 0 -' ~ Z- BUSINESS TEL NO: ..." / (-;. .: ~ _. ,. / EXT " ~ ~ ClASSlFICATIONl ,~. /-.$-7 - . , . -- 'i ClASS TInE r /: 7.'~.J c:.' "eo,.. c.. / / .- _ .DATE OF HiRe ....c.J ,-po -- /. .q i' . ..., ..::? .:;." . ' /' ~/ ' :t ... ..:~ .' POSITION nn.e .;' -.; C--".i9 . ~ / r -- HOURS OF WORK .../ --.. ,/ .~ /.: ~. ~: ~ : EMPLOYED BY .. , - SECTION OR /-'. -r. <- ~,' ~. . (WlHISTRY-coa.u:G~ .~ ././ ~/ C.... /? /J _ ~ /.."./ t DEPARTMENT U C / :... ~1 . ,_ ~_ ~ ~ 1\). ~ EMPlOYER'S / t / -'" J ....... _ .A r .'" ~~ ')" AOORESSISTREET ~ ...~ , . -J .".,.... v r - ;r~ -.. "'Of ~ ::.~ TOWNI _ POSTAL t.'< . CtTY /=- / 61'"-7 .. c. " / ~ (CODE "~ " r ) t' NAME OF .-- ,...., - NAME OF LOCAL -' .~ "'"I ~ ';. STEWARD (:) .;./ / "- '''- PRESIDENT _, /. .. t::. ... -~ ~ .~-....._.~ ..~......_~, --....--- -...- "- . - ~ - ... .;~sr~_2F,GR!EV~~.~:,j~~?f'_~ii~~~~1 I.r ,. .~ ;.. ---.- ~ - ~ ., _: / /j P /' /" /" / .N,..C / /' ,.-., f ... . - ~ ;/ , ~ ~ ,r "'~ 1 / ._ / ~.. .~ _' _ / "" ",' ':',' 1 .,..,. i' -' . "''' '..."''' / " ..., ~ ..... / -~ -, P' j<l .. - . ..~ _...f" .' "-" - . :'\1 -.. - - .... - .-'" ~. , /... - _) / - ... t,.: 0 - / cJ :,;;; . .' .' / .'-. .,. ~ ~ ~ r I ~ ~ ~ /." EHT 'i ':!f . ~ , ,t _ -...., /.J _ - . Et ... ./ " (;1/ ' _' /G ;>.~ ,. ,. ~ '" -- ,...,/ r>"'- - -1.7...' ~~. t!~ :; . ,.' ~ ~~ '.~ . - - - " . - '.I' ..J:! 1 ./..; - f ~ A- -::... J J 4 _ ........- ~ !:. .,-.... -...." ~~ .~ F ~~ ') -- - .- ~ . ~ t -' r~ '~ .. ~ ~ '::.> .~ ~' 1 ' t :. -. , I -'~ ~ SIGNATURE /~/" / ~/ -:'/ 714/' -::: /0 OF GRlE'IOR.. ~ ,,'" ,- '-. 4'''' -;, .- DATE - -~::;~~~.~.~~~~~... ~.~~':~~~~~.&i~:;f~.~:.h.:~~~~:;r:~m~~l~~:--=~: , I HEREBY SUBMIT THE ABOVE GRIEVANCE TO: (PLEASE PRINT) AT STEP 3 t ; ~ . 1 MANAGEMENT OFAClAUNAME POSIT1ON j . .. - " .-~. III ~-~ ~~~ . 1'':- !1 ~ ~1 ~ ~'i SIGNATURE OF GRIEVOR OR ~ d UNION REPRESENTATIVE - DATE ,~ ~ !, ...~ ,.: tOO-t01WoNGE,sTAeerA~~, .. ,-- ''FfiE€(AiiEk4'f8J.-;1~~FRee'(AREAS5Ji81:k:005)~lit~'<~ ~O~ONTARJO.f,I4S'4ZS~ ' ~7<423 -" '~.~t:.!~'-~~~; -1,.aao;.__~~~~ I . ,........,...-~ . ... , ... ~_.............-.~-....~ :0.-. V ~ ~ A.-! ~~t) - - ,I' } ,*' ''''':........ .....-~- ~~~.;'"'"...:..:~'r-o" ':"" ...-,~'!J'~~..",;1.::t<~.:r'~~~:...r:.g.~;~_~:~ . GRIEV ANCE r=:ORM /:f~ ' ~ .. - <:J :0.....:.. ,.;-" ..... -.............. ~-^-....~...~"'_ .....::..r;......:...;.~ ,.:....;...,.".~.\,,:.;}.'~ Ontario Public Service Employees Union CfacQ ( ( .~:r-~4~!,~-.~.;rBli~.]';~~!{:~iA~J:1~~~~Y~~~~~!E:~:~~~~~~~tf:;'i~J~~'.~:t::&~~~~i$;5f~~~~; 6 TH COPY. TO SE GIVEN TO MANAGEMENT AT STEP 3 ~i ~f!: ~ , l6 ,........ i ...... ..::70## #!~.t-. OPSEU ~-,; -:)- .i;:U LOCAl NO. --'"- - I ~ ADORESSI -'? "- , STREET 6..c h/'/6LC /'9t/,€ , ~4 "'~) k ,r/..o:,- I~AL ~ :5P-.2~7 S -- j ~COOE)?'7/ J .-./ - ( AREA CODE ): - ;;.k HOME TEl... NO: / '/6 - !f' CI ~ BUSINESS TEL. NO: 0/'/6 . .)-- -/),.. EXT ~cJ/;/C//l~ & OATEOFtmU: SU (] c r 7.f' ., ..- . ,/7,,$. / /" .- POSmOH TTTLE /Jotl //'./C .'AI- ,{f): /L ~/: fr HOURS OF WORK YO hiJ' R5 AJ?./:-~' . EMPLOYED BY :;l?'1. i') '"" -..:- ~ 1'7" (:;;;QR (;c -..:;..... ~ I~o C /t;L/ (IlIINIS1RY~ '" ' >(~''''.''''y ~, / 0 EMPlOYER'S /i ;a- - .ADORESSISTREET y~' /?"'~,.) 4./~ (Y'CPJ \.. 1< . . , . ': J POSTAL .. r= · . r , i ~ -; ; , CODE . ~ -11 ~ ~~ - ::";'":..:J/t/'-CA~~ :t., IrG O/c~ I / 6ff/...-:- U,r r /./ ,,4 :r / ~j /J ) c..c. ,~ ;r~. ,; 7~ ~ v -i:. . ~ ...... +-,/~.-... c-. 6'"' n '" -:- ..,: ,,~... ,,;;y -/. / ,... c; ,1 PI'" "- .v -/" " ~ ..." AI' ~ , . ; i , C/ it - - ' ,- ....:J r - I ;-/~j I' .; . - .J c ::s / - /(J , ""-"'..1 ........ . "'" ...., '. I 71::'; e~ .r:'.... /.'~ ,"'" " ~ ~4.",",-: A - ) j ...A./ " ". / ~ \ ", "'0' '! ,/,j - ....~/ ..sO ~ ~. ~. //.. .4f.. <:. .!; . A~It!-/E. r"'qel'-.? I .....J-r.. . . A.~ " V ' - ru ("" -;- " ~ I ';a ...q ~ '/)c-t'_ I DATE ::?/ .~ //~r-..I J 7?"'7./1 .:;: ?o ,~ ,. , "" , I HEREBY SUBMIT THE ABOVE GRIEVANCE TO: (PLEASE PRINT) - AT STEP 3 it! .' . \ ,~: '.' MANAGEMENT OFFlClAUNAME POSmON ~ ll' .ff ~ @ m PJi SIGNATURE OF GR1EVOA OR .' ! UNIOH REPRESENTATIVE DATE ~ - .10) !~i'90iYONGEsTfEr~~~~lot;~~(AREi~~REElAA~.,~ "',TOROHTO',ONTAAIOM4S..as ,~~ "~'482.7~". ..~~' '26lHI85O,~.:;" .' ~7376' ,. . ,-...., :: ~ ~~ ,.,.I"'......,.....................~...h.i}'T'-.:.-~1'.~c.. ,.,'" r., ~~ . __ , .> ,I. ~ ~ --.. " ~ Ontario Manual of S&.ui.u1l E Administration POLICY ~ ( Staffing THE STAFFING PROCESS (continued) . . .. AREA OF SEARCH Definitions .. Area of Search" The area deemed necessary by management to attract eligible and qualified eandidates for a vacancy. . "Restricted Competition" A competition that is limited to: . civil servants; ~ . employee.s of those agencies which have a reciprocal staffing agreement; and (" . released employees to whom Article 24 of the Working Conditions Agreement and page 5-57-3 of this volume apply. "Open A competition to which civil servants. uncl.issified staff. Competit1on~ Crown employees and the public may apply. NOTE: Application of these definitions may change due to .7 ~uuating circumstances in lfhich ease ministries will be so advised by the Civil Service Commission. ~ Considerations in Determining The following shall be considered in determining a reason- Area: able area of searcb: '. , all relevant Acts. policies. procedures and programs :: . 1< relating to staffing actiorta; . t''= . C I . tbe size of the c:andidate population required to identify not less than tbree qualified candidates; . the need to provide career opportunities for civil servants, . the need. when recruiting outside the ci9il service. to ensure that civil servants are given opportunities to apply and to be considered; . the urgency and cost in satisfying the staffing needs of the ministry program. Applicants and Area of Search Only applicants from within the designated area of search r - shall be considered. (--... , -- \ , i ) , ; ~~ ,"", ~ Ministry of ... W Corr~ctional ServIces Personnel Subjed. Number Ontario ( Policy and Procedures PER 02 01 01 Section Date Recruitment Mar 1991 Subject Page . Area of Search I Reference Human Resources DIrectives & GUidelInes Purpose To attract sufficient numbers of eligible and qualified candidates for a vacancy Policy / Recruitment below AM-I? Level Procedure Managers, in oonsultation with RP ~ will select area of search based on g,ovemment and emreloyment e<J.uity initiativesf guidelines and their know edge of available resources. Provided that due oonsideration IS given to: these guidelines and requirement to identify at least 3 elIgible candidates, a ( manager can select from the following geographical areas of search: a) local- employees worklDg in a speClfic institution/office b) employees whose prinCipal residence is within 40 kID of work location c) regional I ! d) ministry-wide . I e) OPS-wide.. . In addition to speCIfymg geographical area of search. a competition may be designated as fallIng Wlthm 1 of the following 3 categones: -1. 'Open' - competItion is 'open' to the general publIc and all applications should be consIdered. However, postings of the competition notice may be hmited 2. Restricted to classified employees. ,~--.. 3. Restricted to classIfied/unclassIfied employees. ( <