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HomeMy WebLinkAbout1985-0735.Alam.88-08-10 I> .. ""t" - -~ ~ ,<; 1111 (~'-' ' \: ONTARIO CROWN EMPLOYEES EMPLOYES DE LA COURONNE DE L'ONTARIO GRIEVANCE SETTLEMENT BOARD COMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO, M5G lZ8 - SUITE 2100 180, RUE DUNDAS OUEST, TORONTO. (ONTARIO) M5G 1l8. BUREAU 2700 IN THE MATTER OF AN ARBITRATION Under 'J 1 TELEPHONE ITtLEPHONE (41/3) 598-0688 _ J(.: . ,-, I -'P'/ I r'-'L-J, " ',.. ,,' '..... '-.." -..: ;'. ; ! .-'~., " ~ (\ r~~ 0735/85 THE CROWN EMPLOYEES, COLLECTIVE ,BARGAINING ACT Between: ,r: Before: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Mubarka Alam) - and - The Crown in Right of Ontario (Ministry of Community and Services) G.J. Brandt M. G;;.ndal1 G. Peckham I . ~T. Roland Counsel GowJing, << Henderson Barristers & Solicitors For the Grievor: For the Employer: Hearings: Gr1evor Employer Vice-Chairman Member Member C. Slater Counsel Legal Servi c:es Branch' _ " Min. of Community ~nd Social Services Ma y 25, 1 9 H R ,. 2 1 NTER IN DEe 1 5 ION This is a job competition grievance which originally came before the Board on August 7, 1986, and in respect of wh~ch the ". . , ~ ~ ~ .;.' Board issued an award (on August 31, 1987) allo~ing the grievance and directing the Employer to re-run the competition. In its award the Board directed the Emp~oyer to have regard I to seven conditions in its conduct of the second competition. These conditions related to, inter alia, the breadth of the competition, the composition of the panel, the procedures to be .' . - . - - followed by the panel, and the questions to be asked in the competition. At the conclusion of its award the Board directed the I Employer to "conduct a second co~petitlon subject to the terms and conditions set out here in" and rerna i ned seized of jurisdiction "in the event that difficulties arise concerning the implementation of the conditions herein set do~n." In due course a second competition was held between the grievor and the original successful incumbent, Ms. Gloria Sokoloski. As a result of that competition Ms. Sokoloski was again successful and awarded the position. The grlevor and the Union no", challenge that decision by returning;:he matter to the panel of the Board which o~lglnally heard her grievance and which retained jurisdiction. For the record it should be 5tated that the panel currently hearing the matter is composed differently than that which heard the case originally. Mr. Russell has be~n replaced by Mr. j.- ,^ . i I', " \ .. '" . 3 Gandall. The parties, through their counsel, advised' the Board formally of their consent to this change. ' At the hearing on May 25, 1988 ,two preliminary is'sues were .,',;"",,. .-: ~~:::.. raised. - counsel to the Union sought an order under the Freedom of Information Act diiecting the Employer to produce certain documentat ion re lat lng to the, co'mpet it 1 on ~ Counsel to the i Employer advised the Board that it had no objection to producing ~he documentation requested but that it could only do so pursuant , , to such an order. The Board ordered the Employer to produce the documents " ", ^. requested. Upon examination of those' 'documents counsel to the Union requested, and counsel to ~he Employer con~ented, to an adjournment of the hear lng' to permit an 'examination of the documents. " The second, and more difficult,'matter concerns the scope of the grievance currently before the Board. counsel to the Employer took the position that the is~ue now before the Board was restricted to that of determining whether or'nof the Employer had complied with the conditions prescribed In'the ear-1ier award of the Board; that the jur lsdictlon reta1ned by the Board was,' on the face of the awa:rd, 1 imi ted to that questiot{.' I twas fu:rtheI: submitted that, to the extent that the' grievor or her union wished to raise issues concerning the conduct of the competition ~ .'r: ;'''''. ~ , which went beyond those relating to compliance with the ..... ~'"': . prescribed conditions, such issues should be raised in a new grievance. In this ~egard it was submitted that such new 4 "differences" could not be ~ubmltt~d to the Soard for disposition, without having been processed through the grievance procedure. Coun~el to the Union submitted that, while compliance with the prescribed conditions was a part of the issue, that was not .exhaustive and that the Union ought to be able to produce , evidence and argument respecting other ~ays In which the competition may have been defective, beyond those relating to compliance or otherwise with the conditions set down. It was suggested that it made no sense to have the Board deal with the issue of compliance with the prescribed conditions alone and, in a separate proceeding possibly before a different panel of the Board, entertain a different grievance respecting some other feature of the competition unrelated to those which concerned the Board in its earlier award. It is the ruling of the Board that the issue currently before it is not restricted to a dete~mination af whether or not ,the Employer complied with the conditions attached to the conduct of the second competition. The original 9~ievance, in which the grievor claims that she is entitled under the collective agreement to the position of Intake Control and Statistics Officer, is still before the Board and has yet to be dIsposed of. The Board was unable to determine that question in view of its conclusion that the first competition was flawed. Consequently~ it directed a re-run of I I I j ! r .1\ ~ ~ s the.competItIon In order to better permit it to reach a conclusion, on the merits of the grievance. The Board does not interpret th~concluding.paragraph of its first award in this matter as limiting itself to an investigation only into the questlon of compliance 'with the prescribed conditions. It is clear' from a'reading of the award, in general that the Board was concerned about the fact! that" in view of the flawed competition, the results of that competition did not permit the Board to reach an informed conclusion as tu the "relative equality" of the grievor' vis a vis .Ms. Sokoloski. Consequently, it directed a second competition in order that it be better informed. The 'cond it ions preset ibed were', directed at ensuring, 50 far as possible, tha~ the results of the competition reflect a fair ~nd objective assess~ent 6f the r~lative abilities of the competing applicants such that the Board would be able to reach a decision concerning the grie~ari~e on its merlts~ The concern that th~ competition produce reliable results , ' -, remains. To the extent that the conditions may.have been , . that, for, other reasons, the results' of the second competition are unreliable the Board'would'still be in the 'position where it could not dispose'of the matter.: It would, in our respectful opinion, defy common sense to bi-furcate the issue raised in this giievance by requiring that the issue as to compliance with the conditions be addressed by one panel and other issues, arising out of the same event, be :: . " .T:'.... - 6 dealt with in a different grievance brought before this or a different panel of the Board. Efficiency surely demands that the Board deal with all of the issues arising out of this competition at the same time. In this connection we wish to adopt the views expressed by the Board on Zybrvcki 1100/76) which commented on the problems which arise in job competition grievances where, as a result of a flaw in the competition, a second or more competitions are re- run all of which leads to unconscionable delays in the determination of the matter in issue. The Board there observed that there must be a final determination of the issue of relative equality between competing job applicants and that it is neither fair nor likely to promote good :labour relations to sanction a process which produces inevitable and unconscionable delay. This case has not yet reached the level of delay and complexity exhibited by ZYbrycki. However, we too believe, with respect, that there must be an end to this matter. We do not believe that the position taken by the Ministry with respect to the scope of our jurisdiction to deal with the grievance --- contributes to an expeditious resolution of this grievance which, it may be noted, was filed in respect of a competition first conducted on June 20, 1985, approximately three yeats ago! Having reached this conclusion that the Board has jurisdiction to consider issues arising out of the second competition which go beyond those relating to compliance with the prescibed conditions, it is necessary, paradoxically, for this ~;..:t.; ..... 'r:, (t". .._....'i.. .' ,. "".;'"- ~ "'~ . ~. ~ ~ (, ( , .- .. ~ ~ ....~ 7 panel to withdraw from further involvement in the matter. All members of the panelr for differing reasonSr face serious difficulties in s~heduling a continuation of the matter until, at the earliest, the spIing of 1989. Consequently, it was agreed by the parties that the Registrar be requested to schedule the matter to ,be heard by a differently constituted panel of the Board at a date convenient to the parti~5 no earlier than September 1, 1988. Dated at LONDON, Ontar 10 this lOth day of , 1988 Au qu s t /{? G. J. Brandt, Vice Chair ~2i&~, !B1{ M. Gandall, Member ,~ i / "- ~ ~. ' .c--~_,.4 -../ ~/~_-~-:.-:,.."" G. Peckham, Member