HomeMy WebLinkAbout1976-0100.Zuibrycki.81-02-16ONTARIO
CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
BOARD
180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 1Z8 -SUITE 2100
This is Exhibit referred to in the
affidavit
1981 IN THE MATTER OF AN ARBITRATION
Under The
CROWN* EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: N. Zuibrycki
- And -
Before :
For the Grievor:
For the Employer.:
Grievor
The Crown in Right of Ontario,
Ministry of Industry and Tourism
Employer
J.R.S. Prichard Chairman
E. McIntyre Member
F. T. -Collict Member
G. Richards, Grievance Officer
Ontario Public Service Employees Union
P. T. Moran Hicks, Morley ani Hamilton
i
-2-
I
In this case, the Board has been asked by the parties to
make an award imposing a remedy on the parties to complete the
disposition of a grievance initiated in 1976.
Zuibrycki, grieved his failure to bid successfully for four posted
vacancies which would have comprised promotions for the grievor.
In each situation, another employee of the Ontario Development
Corporation was selected instead of the grievor.
the grievor alleged that the Corporation was in breach of the collec-
tive agreement and that he was entitled to one of the four positions.
The grievor Mr. Neil
In his grievance,
The processing of the grievance
has required numerous hear-
ings over four years.
useful to summarize the proceedings which have gone before us.
In order to put our task in context, it is
1.
2.
3.
4.
5.
The grievance was filed in October, 1976.
A hearing before the Ontario Public Service Labour
Relations Tribunal was held on November 19, 1976 to
determine whether or not the grievor was an employee
for purposes of the Crown Employees Collective
Bargaining Act.
In a decision dated April 18, 1977, the Ontario Public
Service Labour Relations Tribunal noted the agreement
of the parties that the grievor was an employee for
purposes of the Act.
A hearing into the grievor's case was held at the
Grievance Settlement Board on July 6, 1978 before
a panel composed of Professor Swan (Vice-Chairman),
Ms. Gibb and Mr. Simon. At that hearing the employer
took a preliminary objection to the Board's jurisdic-
tion to hear the grievance on the grounds that the
grievor was not an "employee" for purposes of the
Crown Employees Collective Bargaining Act.
In a decision dated September 6, 1978 the Grievance
Settlement Board rejected the employer's jurisdic-
tional objection and ordered that a hearing on the
merits be held in the matter. However, that panel
of the Board declined to hear the merits of the
case on the grounds that one member of the panel
had had some indirect personal contact with the
Ontario Development Corporati on.
-3-
6. On January 30, 1979, a new panel of the Grievance Settle-
ment Board consisting of Professor Adams
( Chairman) , Mr. Peckham and Mr. Simon was convened to hear the merits
of the case.
7. On May 3, 1979 the Board released its decision which
concluded as follows:
The grievance must therefore succeed. The matter is
remitted to the parties to fashion an appropriate
remedy forthwith The Board returns jurisdiction in
this respect and will entertain an application within
thirty days of the release of its decision should an
acceptable accommodation escape the parties.
Within 30 days of this decision, the Union advised the
Registrar of the Grievance Settlement Board that the
parties had been unable to reach agreement on the
appropriate remedy.
Chairman of the Grievance Settlement Board.
8.
9. In the spring of 1979, Professor Adams resigned as
10. Throughout late 1979 and the most of 1980, the parties
made various offers and counter-offers with a view io
settling the dispute. The employer did not offer the
grievor the particular remedy he sought and the 'grievor
found none of the employer's offers satisfactory. At
different stages the employer offered (i) a cash
settlement, (ii) a re-run of the job competitions,
(iii) an equivalent position in Sudbury, and (iv) a
lesser position in London, Ontario.
11. Despairing of their ability to settle the matter, the
parties asked the Registrar to reschedule the matter
before the Board. In light of Professor Adams' re-
signation, a new panel consisting of Professor Prichard
(Vice-Chairman), Ms. McIntyre and Mr. Collict was con-
vened. The hearing was held on December 22, 1980 at
'which time counsel summarized the history of the case and
the negotiations and made argument as io the appropriate
remedy.
In the result, more than four years after the initial job
competition, we are required to impose a suitable remedy on the
parties. While we are, of course, governed by the Crown Employees
Collective Bargaining Act, the collective agreement between the
parties and the previous decisions in this case, we are also motivated
-4-
by the desire to see these proceedings terminated and .the matter
finally resolved. It is difficult to imagine any labour relations
interest at all that would be served by further delay or proceedings
in this matter. II
The facts surrounding the grievance are quite straight-
forward.
At the date of his grievance, the grievor was employed
as a Financial Officer 3 by the Ontario Development Corporation.
The job vacancies he applied for were for three positions as Technical
Consultant and one as a Senior Disbursement Officer. There were
numerous candidates for each position, and the grievor was not
successful in any of the competitions.
At the hearing into the merits of this matter, counsel for
the grievor called evidence of the grievor's qualifications and job
performance.
degree from the University of Manitoba and an M.B.A. from the
University of Western Ontario.
for the Ontario Development Corporation for 14 years.
The grievor holds both a professional engineering
He is 49 years old and has worked
At the hearing the employer elected to call no evidence.
In addition, the successful candidates in the four competitions who
were given notice of the hearing also chose not to testify or provide
other evidence or be represented by counsel.
from that called by the Union was a listing of all candidates and
their backgrounds and three competition summaries showing that the
grievor had been rated lowest in all of them.
The only evidence apart
In its decision dated January 30, 1979, the panel of the
"the Board chaired by Professor Adam commented at pace 8 that:
presentation cf the case by the employer was far from satisfactory
-5-
In our view, in retrospect, that is too generous an assessment. The
employer's failure to call evidence in a promotion case of this kind
is bound to lead to major difficulties and to prejudice not only
the employer's case but also the position of the successful candi-
dates. These candidates who rely on the employer to defend adequately
the selection decisions are left without representation when they are
neither represented through a proper presentation of the employer's
case nor aware until too late that they should make independent re-
presentations in light of the employer's failings.
Furthermore, the absence of evidence from the employer forces
the Board to accept the grievor's evidence to the extent that it
withstands cross-examination. Thus the panel chaired by Professor
Adam found a5 follows at page 8:
From this evidence we are satisfier! that he made cut a
prima facie case that he was at least equal in ability and
qualifications to all of the other candidates in each
competition.
established that he was demonstrably
qualifications and ability to any of the other candi-
dates. Accordingly, he successfully established his
claim, in a prima facie my, only in relation those
employees who possessed less seniority than he did, i.e.
Messrs. Quigley and Tofano,
However we are not satisfied that he
superior in
The reference in the final sentence quoted above is to two
of the four successful candidates, Mr. Quigley and Mr. Tofano. The
other two successful candidates had greater seniority than the
grievor and they were therefore entitled to their positions over the
grievor since, their qualifications were found to be relatively equal.
In the competition won by Kr. Quigley there were nine candidates in-
cluding the grievor.
more seniority than the grievor.
of the nine candidates, three had less seniority than the grievor
while five had more.
Of these, five had less seniority and three
In the competition won by Mr. Tofano,
i
-6-
III
At the hearing before us, counsel for the Union and counsel
for the employer set out their competing positions regarding the
appropriate remedy in this matter.
Counsel for the Union took the position that the Board
should declare that:
1.
2.
3.
4.
5.
The grievor was entitled to the position as Technical
Consultant won by Mr. Tofano; and
In the alternative, and based OR some reason of substance
to be offered by the employer not to grant (1), the
grievor was entitled to the position as Technical
Consultant won by Mr. Quigley; and
In the alternative, the grievor should be awarded a
new Technical Consultant position in the Toronto/
Hamilton area; and
The grievor should receive compensation equal to the
difference between his salary as a Financial Officer 3
and the salary he would have received as a Technical Consultant for the period from September 21 , 1976 to
the date of th2 award; and
The grievor should receive interest on the lost earnings
in (4) calculated in accordance with the formula used
by the Ontario Labour Relations Board.
Counsel for the employer took the position that as a remedy
the Board should order that the job competitions won by Mr. Quigley
and Mr. Tofano should be re-run by the employer.
candidacy should extend to the nine original candidates and their
qualifications should be those as of September, 1976. The ernployer
should, according to counsel, ignore the experience acquired by the
candidates since 1976.
counsel acknowledged that he would be entitled to .compensation for
the salary differential since 1976.
In the re-run,
If the grievor were to succeed in the re-run,
-7-
Counsel for the employer indicated that he recognized that the
remedy he proposed was an imperfect one in light of the difficulties of
holding a re-run four years after the event, particularly given the
somewhat strained relationship between the grievor and. the employer.
However, he stated that to grant any other remedy would be to exceed
our jurisdiction. He did indicate, however, that if the Board were
to make an award of a cash settlement payable to the grievor in
lieu of the re-run, the employer would be amenable to such a solution.
IV
The dramatically different remedial proposals suggested by
the Union and the employer derive from different understandings of
the Board's remedial jurisdiction in a promotion case such as the
one before us.
remedies available to us before selecting an appropriate remedy in
We must therefore determine the range of possible
the case before us.
The Board's jurisdiction is derived from both the Crown
Employees Collective Bargaining Act, S.O. 1972, c. 67, as amended,
and the collective agreement. The relevant provisions of the Act
are as follows:
.
-a-
worked by employees including paid holidays paid vacations
group life insurance health insurance and long-term income
protection insurance promotions, demotions transfers lay-
offs or reappointment of employees, the procedures applica-
ble to the processing of grievances, the classification
job evaluation system, and the conditions applicable to
leaves of absence for other than any elective public office
or political activities or training and development. 1974
c. 135, s.3.
Section 17.
to provide that it is the exclusive function of the employer
to manage, which function, without limiting the generality
of the foregoing, includes the right to determine,
(1) Every collective agreement shall be deemed
(a) employment, appointment, complement, organization
assignment, discipline, dismissal suspension, work
methods and procedures kids 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 bargaining agent,
and such matters will not be the of collective bar-
gaining nor come within the jurisidiction of a board.
(2)- In addition to any other rights of grievance
under c collective agreement, an employee claiming,
(e) that he has been disciplined or dismissed or suspended
from his employment without just. cause,
may process such matter in accordance with the grievance
procedure provided in the collective agreement and failing final determination, under such procedure the matter may be
processed in accordance with the pocedure for final de%?-
mination applicable under section 18. 1974, c. 135, s.9, part ?-*
-9-
present t322ir evidence and to mke
&c2e the ratter and its &cision -- the parties ~IC? the evZoyees covered b_v the ogrsenent.
(2) i'32e Gr4evme Setflmm.2 2oanZ hcs tk
same pcuers GS a borJd of mbiba$*h. urder s-dsectiom 12
and 23 of section 10.
(3) Where the Grievcmce SettZment Bomd
dete-whes that a disciplincy pemlty or iisrrriissat of mz
enpZoyee is ezcessive, it may su3s5ttlte such other pa~zZty
for the discipZine or ZisnissaZ as it cmxidsrs $it mzd
reasmsbZe in aZZ the cirmstznces.
(3a) . . . . .
(4) Where c pareg or an empZogee Pas faiZed
to comply with my of the terms of the decision of the
G&v,ame SettZement Board, any prty or employee affected
by the decision mq, after the eqimt;im of fourteen doys
from the date of the relecse of the decision or the date
provided in the decision for corr?ptiance, uhichever is later
fiZe in the of;cice of the Registrc of the Suprens Court e
copy of the decision, ezclusive of ths reason thepeyor,
where-qon the decision s7mZZ be en.tered in 5he scme way cs
a judgment or order of thct cart md ts enforceablz as
sL(ch. 1974, c. 135, s. 9, part. -.
The relevant provisions of the collective agreement are as
follows:
Article 4 - POSTING OF VAC&/CIES
4. I
skZl a&ertise SUL;'~ vacrmq for et Zeust five (5) work-hg
dcys prior to the cZosing date of the co.?e?*:t:or, for 52e
position or vacancy.
Wmrever practicable, advertisements for vac,r,&es WiZ I Z?e
post.eZ on hZZetin boards.
4.2 In f%IZing a vacancy, the ET;rpZoyer simZZ give
primcrry considercc+bz to quaZificati0n.s and
cbiZity to perfom the required duties.
opinion of the LEmpicyer, paZij%cccttons and ~biZi% me
TelutiveZy eqtuzz, Zength of cmtimous service skZZ 3e
a comileratim.
??hen a vacancy occ~crs Gr a ne~l position is
erected in the baqciniq unit, the ,'Zl;ptoye,n
AZZ appZicat<ons uiZZ be asZuzcule&~eZ.
%%ere, <n the
I
- 10 -
5.1.3 length of semice.
Article 30.4.1 If the grievor is not satisfied with tire
designee or if he does not receive the decision viithtn the
specified
time the grievor may apply to the Grievance
Settlemmt Board for a hearing of the grievance
decision of the Deputy Minister or his
Article 30.11
amend or enlarge any provision of the Collective Agreement
The Grievance Settlement Board shall
have no jurisidiction to alter, change
The effect of these statutory and contractual provisions is
to charge the Grievance Settlment Board with the obligation to hear
grievances arising from the interpretation, application, administra-
tion or alleged contravention of the collective agrement and to
decide the matters. In the case of disciplinary matters, the Board's
remedial authority is explicit as subsection 18(3) states that we
may "substitute such other penalty for the discipline or dismissal
as [we] consider just and reasonable in all the circumstances”.
In non-disciplinary cases, our remedial authority i's implicit in our
power in subsection 18(1) to “decide the matter in a manner that is
final and binding upon the parties and the employees governed by the
collective agreement.
This is undoubtedly a broad remedial authority. However it
is entirely consistent with the Board's function which is to adjudi-
cate disputes which arise from the collective agreement from to tine
and to dispose of these matters in a manner consistent with the
sensible administration of labour relations in the Ontario public
- 11 -
service. The statute does not list any specific remedial powers .
except with respect to disciplinary cases; in all other situations
the power to “decide” is unconstrained, leaving the Board with the
responsibility to exercise the power wisely so as to ensure fairness
to the parties and the employee and to promote a reasonable labour
relations environment .
Counsel for the employer argued that this remedial power
is limited by subsection 17(1) of the Crown Employees Collective
Bargaining Act, by Article 5 of the collective agreement and by the
decision in Re Falconbrige Nickel Mines Ltd [1973] 1 O.R. 136 (C.A.).
We will consider each of these limitations in turn.
At first blush, subsection 17(1) is the equivalent of the normal
private sector management rights clause.
every collective agreement concluded in the ,Ontario Public- Service.
It states that it is the exclusive function of management to manage
It is deemed to be included in
and that this right to manage includes the right to determine employ-
ment, appointment, complement, assignment, discipline, dismissal,
suspension, etc.
although not specifically listed, fall within this management function,
Counsel's argument was that since promotions,
the Board's' jurisdiction is excluded.
acknowledged that section 17( 2) specifically instructs this Board to
review employees claims that the employer has improperly exercised
its powers since matters such as discipline, classification, etc.
fall within both subsections 1 and 2. Furthermore, once a matter
falls within the scope of subsection 17(2) , it automatically attracts
the Board's remedial power to “decide” under subsection 18(1).
At the same time, however, it is
1
- 12 -
The reconciliation of subsections 17(1) and (2) is eased in
part in that the prohibition in 17(1) is to the effect that the manage-
ment matters “will not be the subject of collective bargaining nor come
within the jurisdiction of a “board” A “board” is defined in subsection
1 (1) (d) as "a board of arbitration established under this Act'' and section
10 of the Act provides for establishing such boards.
lates to the concluding of a collective agreement not its interpretation.
The Grievance Settlement Board is not a “Board of arbitration although
under subsection 18(2)
the Grievance Settlement Board enjoys the sane
powers as a board of arbitration under subsections 12 and 13 of section 10.
In effect, then, subsection 17(1) deals with the negotiation and content
of a collective agreement while subsections 17(2) and 18(1) deal
the resolution of disputes arising under a collective agreement.
the case before us we are dealing with the resolution of a-dispute under
the collective agreement. As a result, our primary jurisdiction derives
from and is stated in subsections 17(2) and 18(1).
promotions is included within the terms of the collective agreement as a
result of negotiations within the context of sections 6 and 17(1), our
function is governed by subsections 17(2) and 18(1).
be guided by the proper allocation of functions between management and
the Union, we must still exercise our remedial authority under subsection
18(1).
Their function re-
with
In
Once a matter such as
While we must still
Counsel for
the employer also argued That the language of Article
5 of the collective agreement also limits our remedial authority in that
the Article refers to “in the opinion of the employer” Counsel argued
that the Board must therefore limit itself to reviewing the correctness
of the employer's decisions in promotion cases, remitting the matter
back to the employer for reconsideration if an initial decision is
wanting. In the absence of Re Falconbridge supra this argument would
to be more properly directed at the standard of review rather than our remedial
found
appear
authority.
- 13 -
Counsel linked his argument based on th2 collective agreement to his re-
liance on th2 Ontario Court of Appeal's judgment in Re Falconbridge supra since the
language of the collective agrement in that case and ours is
similar. In Falconbridge there were three applicants for a promo-
tion and after one of them was selected, one of the two unsuccessful
applicants grieved alleging that the company had not acted .in a fair
and reasonable manner in that it had failed to make sufficient in-
quiries about certain aspects of the grievor's experience. The board
of arbitration allowed the grievance and upon finding on the evidence
that the grievor and the successful applicant were relatively equal
in skill, directed that the grievor receive the promotion. The
company in its application for judicial review succeeded in the
Court of Appeal which found as follows at page 138:
On the question of whether the board acted without
jurisdiction in ordering the company to place Cowen in
the vacant position, it is unnecessary to decide what
the powers of the board would be if there had teen only
two applicants for the vacant position - Simard and
Cowen. In such a case the question is academic. In
fact, there
was a third applicant and in my opinion
under arts. 3.01, 12.10 and 12.11 the appellant has c
clear management right, if not the duty to make a
choice between Cowen and the third applicant in accord-
ance with the terms of the agreement. By its award in
my opinion, the board usurped the function of management
I have mentioned and exercised G power it did not have
Fort Arthur Shipbuilding Co. v. Arthurs et al.,
S.C.R. 85, 70 D.L.R. (2d) 653.
here and below I would set aside The order of Galligan
J., and in its stead quash the majority award and remit
the matter to the board to direct the company to promote
either Cowen or the third applicant in accordance with
the terms of the collective agreenent and particularly
art. 12.11.
[1969]
In the result I would allow the appeal with costs
AppeaI aIlowed
By analogy, in the case before us, counsel for the employer argued
that to award the job to the grievor would usurp the employer's
judgment under Article 5 of the collective agreement.
I
- 14 -
The case before us and that before the Court, in Falconbridge
do have certain basic similarities: the language of the collective
agreement and the more-than-two-applicants fact .situations are both
common. However there are a7 so some fundmental differences between
the two cases, differences which in our opinion necessarily lead to
the conclusion that Falconbridge does not strictly limit the Board
in fashioning an appropriate remedy in this case.
.
. The primary and dominant difference is that Falconbridge .
was decided in the private sector on the exclusive basis of the
distribution of powers according to the collective agreement while
the case before us arises in the public sector pursuant to a statutory
grievance procedure and before a publicly appointed Board which gains
its authority from the Crown Employees Collective Bargaining Act as
well as the collective agreement. In the result, decisions based
in private sector settings are not automatically applicable to the
public sector when the issue concerns the scope of the Board's reme-
dial authority. Rather our statute and the collective agreement must
be read and interpreted in the context of the sensible administration
of labour relations in the Ontario public sector.
cial decisions based on the private sector are frequently of assist-
ance in determining our powers and responsibilities but they are
rarely determinative.
statute, as indicated above, grants us full remedial authority to
Arbitral .and judi-
Our primary guide must be our statute and the
resolve disputes between the parties.
In addition, the reasoning in Falconbridge would appear to
be applicable only on situations in which the matter can be remitted
back to the employer for a new decision with the confidence that the
- 15 -
employer will be able to make a fair decision. In our opinion, such
a requirement is implicit in the Court of Appeal's decision.
case, while there is no allegation of bad faith or bias, the passage
of tine since 1976 has made it virtually impossible to hold a true re-
run of the original competitions. Even counsel for the employer frankly
acknowledged his difficulties in this respect.
In this
In addition, in Falconbridge the defect which led to the.
grievance was one of process in that the employer failed to familiarize
itself with the relevant facts. In the case before us, the failure would
appear to be one of judgment in that there was apparently no evidence
concerning any procedural irregularity. Thus, there is no need to
remit the matter to the employer to "cure" any procedural defect.
We should also add that if we were to follow the Falconbridge
decision strictly the new competition would have to exclude Messrs.
Quigley and Tofano just as the successful candidate was excluded in
the Falconbridge re-run. Thus even applying Falconjridge would not
assist the two men most directly affected by the decision we reach
below. It would only benefit those persons who were not selected and
did not grieve.
In light of these differences, we are of the opinion that our
statutory authority under subsection 18(1) gives the power to choose
an appropriate remedy in this case unfettered by the legal holding in
the Falconhridge decision.
mindful that in many cases the appropriate remedy in multiple-applicant
promotion cases may well be to remit the matter to the employer for a
re-run.
reasonable decision is arrived at, particularly when the Board is in
a position to give the employer instructions as to the proper conduct
of the competition.
nay often be the most appropriate remedy, it is not in our opinion the
mandatory remedy.
that to remit the matter would be neither fair to the grievor nor
At the same time, however, we are not un-
This will often be the best way to ensure that a fair and
However, while remitting the matter to the employer
In some cases the Board will properly be of the view
likely to promote good labour relations.
- 16 -
The case before us is one such case. It is acknowledged that
a fair re-run of the competition would be impractical ,at best. Further-
more, the difficulties the employer faces in this case can be attributed
directly to its own behaviour at an earlier stage in this proceeding.
By failing to call any evidence the employer made it impossible for the
Board to determine the nature of the employer's decision-making.
the result the Board is ignorant of the employer's procedures and would
be casting the matter back into a void. Through its conduct, the em-
ployer has restricted the range of appropriate remedies, eliminating
the appropriateness of a re-run. Furthermore, after four years this
case cries out for a final determination.
to extend the matter even further and to invite another
round of griev-
ances and arbitral review.
In
To order a re-run would be
We have no desire to set such a process in motion.
In commenting strongly on the employer's conduct at an earlier
hearing, we recognize that the employer was not at that time represented
by counsel.
this Board from the responsibility to present its cases properly or from
the obligation to be bound by its conduct.
to hear and decide cases
before us.
inadequacy wiil fall upon the party responsible for it.
However, that does not relieve any party appearing before
ble are under an obligation
ble must do so based on the information put
If that information is inadequate, the implications of that
Before leaving Re Falconbridge, we should add that it has been
distinguished even in the private sector in numerous cases.
example, City of Toronto (1978), 17 L.A.C. (2d) 304 (Kates) and the
cases collected in Brown and Beatty, Canadian Labour Arbitration (1977)
at pp. 274-275.
(See, for
V
Turning to the particular facts of the case before us, it
must be remembered that the earlier panel of the Board found that
the grievor possessed ability and skills at least equal to a71 of the
candidates in each competition.
led over Messrs. Quigley and Tofano, each of whom had less seniority
than the grievor.
In the result, he should have prevai-
I
- 17 -
There were other candidates more senior than the grievor who, on the
Board's findings, were relatively equal in ability and skills and who
therefore would have been entitled to prevail over the grievor if they
had grieved and if the same findings of fact had been made.
they did not grieve and have not grieved to this date. They therefore
have forfeited any claim they may otherwise have had to the positions.
It is widely accepted in labour relations that those with a grievance
should raise the matter in a timely fashion so as to allow the parties
to the collective agreement to assess the situation and respond appro-
priately. In particular, if the other candidates had grieved, the
grievor's case and
the employer's case may well have been different.
However, by not grieving the other candidates are now foreclosed from
claiming (or having claimed for them by the employer any rights in
this arbitration.
However,
In the result; we are therefore of the opinion that the
grievor must succeed in his claim to be entitled to a declaration
that he should have succeeded over Messrs. Quigley and Tofano and
that he is entitled to one of their positions as a Technical Con-
sultant. Since the grievor can only actually succeed in one or the
other of the two competitions, we must choose between them.
he expressed
a preference for the position held by Mr. Tofano, the
employer persuaded us that it would be more desirable to award the
Although
grievor Mr. Quigley's position since it is located in Toronto where
the grievor would
not be the only Technical Consultant in the office.
The employer has a policy of not starting new Technical Consultants
in offices where they would be working alone. Thus, it is Mr. Quigley's
position which the grievor must receive.
- 18 -
We might add at this point that our decision to give the
grievor a position as Technical Consultant is done in the knowledge
that during the negotiations between the parties since the decision
in 1979 by the panel chaired by Professor Adams, the employer did
offer the grievor a position as a Technical Consultant. While this
offer was not accepted since it was for a position in Sudbury and
was unaccompanied by any compensation for lost earnings, it did
indicate that the employer accepts that the grievor is capable of
doing the job of a Technical Consultant. Furthermore, if the grievor
is not capable of doing the job, the employer is in a position to
remove him for incompetence if and when it is able to prove this
incompetence.
The grievor's claim for compensation must also succeed as he
is entitled to compensation for the lost salary differential since
1976. Counsel for the employer advised US that the amount owing as of
May, 1980 was between $9,800 and 517,400 while the grievor's counsel
advised
us that the amount was between $15,000 and $25,COO for the
entire period. Normally we would instruct the parties to negotiate
a mutually agreed upon figure by way of compensation, but given the
unsuccessful. record of prior negotiations in this. case, we do not
believe such an order would now be appropriate.
all the evidence we have concluded that a lump sum award of $15,000
represents fair compensation for the grievor
for his lost earnings
and the interest thereon. The employer is therefore instructed to
pay this amount to the grievor by way of compensation.
Rather, in light of
In reaching our decision we recognize that we have assumed a
broader remedial authority than that available to arbitration boards
- 19 -
in the private sector in light of Falconbridge. This difference
derives from differences in the statutory mandate of this Board.
We must hasten to emphasize, however, that the labour relations
considerations which underlie the proper exercise of an arbitration
board's powers remain the same in the private and public sectors.
In both settings, arbitration boards must be sensitive to the limits
of their institutional competence and to the advantages of relying
on internal processor for
making promotional decisions.
there will be cases in which sensible labour relations will require
an externally imposed, final solution, and, in our opinion, the case
before us is such a case. Here to rely on the internal processor
would be to rely on a process which in the circumstances is seriously
However,
flawed and to almost certainly produce further grievances.
opinion, despite the risks, it is better for us to decide and dispose
of the matter at arbitration.
In our
VI
Before concluding this award it is necessary for us to
comment on the positions of Mr, Quigley and Mr. Tofano.
virtue of almost entirely fortuitous events, Mr. Tofano has escaped
being prejudiced by the result in this case, Mr. Quigley stands to
bear the full brunt of it. It is his position that is lost; it is
the result in the competition in which he succeeded that we have
found invalid.
While by
To be fair, Mr. Quigley had proper notice of these proceed-
ings at each stage and of his right to appear, be represented,
adduce evidence and address arguments to the Board.
sense he has been treated fairly.
In that limited
- 20 -
However, in reality Mr. Quigley has been severely prejudiced
by the employer's conduct in this case
the employer's presentation of the case which turned out to be
utterly inadequate. He also appears to have foregone the opportu-
nity
to compete for other Technical Consultants' positions as they
have come vacant over the past four years. NOW, in the absence
of some remedial action by the employer he will be left without
a position
as a Technical Consultant at least until another suitable
vacancy occurs which he could compete for.
Not only did he rely upon
No doubt his four years
experience
on the job will hold him in good stead in any such com-
petition, but pending such a competition he is severely prejudiced.
While we do not believe we have the authority to order the
employer
to take steps to remedy this unfortunate situation, we
could not overstate our concern in this respect. A failure to take
remedial steps would appear to work a substantial unfairness on
Mr. Quigley.
VI I
In conclusion, the grievance is allowed. The grievor is
to be appointed forthwith to the position of Technical Consultant.
He is also entitled to an award of compensation for lost earnings
for the period from September, 1976 to the date of this award.
The Board orders that this conpensation be fixed at $15,000
payable by the employer within 60 days of the date of this award.
Finally, we wish to express our gratitude
to Mr. Moran and
Mr. Richards for their assistance in this matter. They were both
most accommodating of the Board's desire to see this matter resolved
- 21 -
short of arbitration and made every reasonable effort in that
respect.
Dated at Toronto this 16th day of February 1981.
J . R . S chard Chairman
"I concur - E. McIntyre"
E. McIntyre Member
"I dissent" - see attached
F. T. Collict Member
/lb
I dissent with the majority award.
The majority award ststes at page 14 that
"our primary quide must be our statute and the
stature, as indicated above, grants us full
remedial authority to resolve disputes Between
the parties. ”.
This position is based upon en interpretation of The Crown Em-
ployees Collective Bargaining Act, 1972, and a distinction made
between a "board of aribitration" whose function Is related to
the concluding of a collective agreement, while the Grievance
Settlement Board is not a :board of arbitration”, as such, but
which is
established to deal with. resolction, of disputes which
arise under the collective agreement The authority for this
position is subsections 17(2) and 18(1) of The The Crown Crown Employees
Collective Bargaining Act.
2.
This s is cocsistent wikh subsection 1Sii) of the
statute However, the staternent at pzGe 11 cf zhe zajcrizy
?osition, to the effect that the rernedizl
'I.... power to 'decide' is .unconstraine?, leaving
the Board with the res2onsibrlity to exercise
the'power wisely so BS to ensilre fairness to the
. paryies and tne employee and to promo:e a Z~ESOZ-
able labour relations environaent"
is quite inconsistent with the . -.
of the statute.
the purpcse of 18(1) BS "Arbitration of disputes under eszee-
nent". Certainly, therefore, it wzs ilct the intent of those
Even the marginel nOie of the scatute defines
who drzfted the language
of the stetcte to arovite Soards sf arbitration xikh completely "unccnszr2Fned" and cnlixited
acthority in effecting resoluticnc
parties
?over given to Boards of zr5i:raticn ~s rn e:<ce;zi.cn to the
to disputes between the
in fact subsection 1&(3) is ihe 022 specific . -. remedial
".... the inter?retztion, applicatoin oz alleged
contrzvenzion of the agreement....”.
that not
nixority 2osFtion is that
a-
-- the tiae of
csnsiderzzicn. "
3.
"5.2 Where, in the opinion of the Employer
qualifications ana ability are relatively equal
length of continuous service shall be a consider-
ation. ” .
(underscoring added)
Very clearly it is the opinion of the Employer that is important,
not the opinion of the Board; and as stated in the above mentioned
Falcmbridge case at the Court of Appeal
”.... the board usurped the function of management
I have mentioned and exercise6 a power it did not
have. "
To rule, therefore, that grievor Zuibrycki should be assigned to
a Technical Consultant position would “.... usurp the function of
management ....'I in this case and. would. further be in violation
of Article 30.11 of the agreement between the parties at chat time
set out as follows: -
"30. 11 The Grievance Settlement Board shail have
no jurisdiccion to alter chance, amend or en-
large any provision of the Collective Agreement. "
“ was at least equal in ability and quali-
....
ficacions to all of the other candidates in
that he established that he was demonstrably
superior in qualifications and ability to any
other candidates ....”
the competition. However, we are not satisfied
In referring the case back to the parties in May of 1973 the
Board referred the case back for the purpose of giving "con-
sideration" to the greater length of continuous service that
Mr. Zuibrycki had as ccmpared to Messrs. Quisley and Tofzno.
It must be noted that the language of the agreemett does not
state that length of service shall "govern" in the event that
ability and qualifications ere relatively equal as between several
applicants for a competition. In this respect also as related to
the above mentioned Falconbridge case, it should be noted that
the case was overturned and referred Seck to management for a
review of the applicants regardless of the more definitive
language see out in Article 12.11 in the Faicenbridge agreement.
shall govern. " when ability , knowledge skills, etc. are “ ...
to all intents and purposes equal as between two or more ex-
ployees ....".
This latter agreement specified that " .... relateive seniority
" consideration “ .
5.
of the applicants or has in some way violated the provisions
of the agreement between the parties, the position in question
has been declared vacant and the employer has Seen directed to
repeat the evaluation process.
In
this respect, Brown and Beatty at page 273 have stated the
following:
“.... where it is detemined that the employer's
initial decision was improper, arbitrators, in no
recent awards, have generally adopted the view
that rather than themselves determining which of
the various applicants shall be appointed to the
job, they should simply remit the decision back
to the employer for a fresh determination to be
re
based on such standards and terms as are prescribed
by the agreement. “ .
Moreover and specifically with reference to both the specific
langage of the agreement and remedial powers of the arbitrator
Brown and Beatty at page 275 cite cases which support the follow-
ing conclusion
". ... it appears that arbitrators do not possess broad
equitable powezs to fashion remedies, suitable in the
circumstances which would require the employer to do
more than he was expressly obliged to do by the terms
of the agreement. " .
[Association of Radio and Television Employees of
Cznacia vs. Canadian Broadcasting Corporation (1973),
4.0 D.L.R. (3d) 1, 73 CLLC 14, 139 (S.C.C.)
1
It fiss 3een suggested. that the principle set out in the Ontario
Court of Appeal as related to the Falconbricige case might not
apply in some promotion cases. That is, in re St. Catharines
General Hospital (1975), 10 LAC (2d) 258 (Adams), and Reynolds
Aluminum Co. of Canada Ltd. (1973), 4 LAC (26) 370 (Schiff),
".... it has been asserted that it would be proper for the
arbitrator to actually award the job to the successful grievor.”
relative t
& Beatty) 2. 275. However, this position is qualified
relative to situations where the collective agreement language
“.... does not specifically provide that the assessment of an
employee's skill
or ability is to be based cn ‘management’s
judgment
or opinion". (Brown & Beatty 2. 274). Certainly the
language of Articles 4.2 and 5.2 cited earlier make it abundantly
clear that it is the employer in this subject case who will con-
sider or assess the qualifications and/or ability of the candi-
dates in the competition.
It is the minority position that grievor Zuibrycki is not
entitled to the position of Technical Consultant, nor is he
entitled to any compensation as claiined. Grievor Zuibrycki's
entitlement under
the clear language of the agreement is con-
sideration of his length of service as related to his quali-
fications and ability which have been found to be equal to
those of other applicants. It is conceded that to refer the
case back to the parties after a four year interval would
result in certain practical problems in the re-evaluation
process. This position, however, is not inconsistent with
the Falconbridge case which was referred back to the parties
similar promotion cases where it was found --',-- that the evaluation
process was found to be faulty.
after a long interval; nor is it inconsistent with other
“F. T. Collict"
F. T. Collict Member