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HomeMy WebLinkAbout1980-0273.Chittle.81-07-24 ONTARIO LRCWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 OUNDAS STREET WEST. TOR�NTC. ONTARIO. M5G 1Z8 SURE 2100 TELEPHONE' 4161598-068E 273!80 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between : IL-. Gaynor D. C'hittle Grievor - And - The Crown in Right of Ontario (Ministry of the Attorney General ) Employer Before : Mr. R. L. Verity, Q.C. Vice Chairman Mr. E. R. O1Kelly Member Ms. M. M. Perrin Member For the Grievor: Ads. L. Stevens, Grievance Officer Ontario Public Service Employees Union For the Employer : Mr. B. C. Pitkin , Deputy Director, S.C.O. Ministry of the Attorney General Hearing: June 1 , 1981 ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 OUN04S ST9iEE7 WES`. TOPONTO. ,ONT41i/O A15G 1ZB-SUITE 2160 TELEPHONE.- 4761598.06BS ONF.tR10 CROl4'V Er7PLU'rEf$ GRIEVANCE SETTLEMENT BOARD 180 DUNDAS S'uEET WEST. 7GR;urG. C,IJT.%,'o. 1,15G 'Z8-SUITE 2,700 TELEPHONE! 4161598-0588 I 3 `I f I i I I 3 I I 2 - J A W A R D }� Three Grievances were filed, requesting that each of the Grievors be awarded the advertised position "Trial Co-Crdinator, S.C.O. and Matrimonial Causes Clerk 5, General" at Windsor. Two of the Grievances were withdrawn at the time of the Hearing on June lst, 1981, and only the Grievance of Gaynor D. Chittle remained to be determined by the Board. The successful applicant, Vivian Derbyshire, appeared in person and gave evidence on behalf of the Employer. The material facts are as follows. The Local Registrar S.C.C. at Windsor, required a replacement for the previous Trial Co-Ordinator, S.C.O. , a Mrs . Burtchell, who retired in December of 1979. The successful applicant, Mrs . Derbyshire, assumed Mrs . Burtchell' s duties on an acting basis on December 1st, 1979 , and was officially appointed Trial Co-Ordinator S.C.O. at Windsor in March of 1980 . A selection board was established consisting of four persons of considerable experience and background, namely ;sirs . Penny D' Brass , Personnel Officer with the Ministry of the Attorney-General, Mr. 3. Pitkin, Deputy Director of the Supreme, County and Surrogate Courts , Ms . Lynne Poyntz, Trial Co-Ordinator S .C.O. at Toronto, and Mrs . Anja Eperon, Local Registrar S.C.O. at Windsor. i 3 The position was posted on December 4th, 1979 , on a "restricted" basis (full-time civil servants within the County of Essex) with a closing date of December 17th, 1979 . The job posting was advertised as follows (Exhibit 1) : "MINISTRY OF THE ATTORNEY-GENERAL TRIAL CO-ORDINATOR, S.C.O. ;LND MATRIMONIAL CAUSES CLERK 5, GENERAL $272. 42 - $313. 62 per week (RESTRICTED) A responsible individual, is required by the Local Registrar, S .C.O. , Essex, to co-ordinate sittings of the Supreme Court of Ontario and Matrimonial Causes held in Windsor. This position demands considerable initiative and highly developed co-ordinative ability in order to maximize utilization of available judicial time by assessing and determining caseload allocation in relation to the type of matter in consultation with solicitors and in response to constantly changing circumstances which affect the estimated duration of trials . In addition, you will assume respon- sibility for arranging and training necessary courtroom staff, ensuring courtroom accommodation, arranging conduct of prisoners and providing for. the completion of associated statistical data, office records through the assignment of work to Clerk, S.C.O. and Matrimonial Causes . Work is carried out through significant contact with the judiciary, Crown Attorney and members of the legal profession. LOCATION: WINDSOR QUALIFICATIONS : In addition to the attributes noted above a thorough understanding of the Supreme Court jurisdiction and courtroom procedures in order to train courtroom staff; complete familiarity with the Rules of Practice to ensure cases properly set down for trial.. Ability to set priorities and assign work to support staff. Superior oral communication skills. A self-starter able to independently co-ordinate and expedite matters in a relatively high volume setting under pressure. These skills and knowledge are normally acquired through progressively responsible experience in a courts related area. I ' _ 4 Qualified civil servants are invited to submit an application to: AG 685/79 Personnel Management Branch Ministry of the Attorney General 18 King St. East, 14th Floor Toronto, Ontario. M5C 105 Posting Date : December 4 , 1979 Closing Date: December 17, 1979 Area of Search: All Provincial Government Offices within the County of Essex. EQUALITY OF OPPORTUNITY FOR EMPLOYMENT PLEASE POST ON ALL BULLIETIN BOARDS" Five applications were received and all five a:plicarts were interviewed. apparently all five candidates met the basic qualifications for the position, however the selection board decided to broaden the area of search to include the Counties of Lambton, ,%iddlesex, Elgin and Kent in addition to the County of Essex, obviously for the purpose of obtaining a superior applicant. As a result of the selection board's action, a new job posting was advertised on an "open" basis with a posting date of January 8th, 1980 , and a closing date of January 21st, 1980. This second job posting was in the identical wording to the first posting, with the exception that it was an "open" competition, and contained an expanded area of search as referred to above. Sever new applications i 4 V I - 5 - were received as a result of this second posting, and four interviews were granted on February 1st, 1980, to some of these new applicants , . and in addition each of the original applicants in the first job posting were again considered by the selection board, al though not interviewed a second ti.«e. she selection board for the second set of interviews was composed of each of the persons involved in the first selection board with the exception of Ms . Poyntz, who by that time had retired. A :ors. Valerie Drawbell was also present, but only in the capacity o, an observer. The selection board was unanimous in its selection of the successful applicant, Mrs . Derbyshire. Mrs . Derbyshire was not one of the applicants as a result of the original posting. The Article in question is Article 4 of the Collective Agreement which provides in part as follows : "4 .1 when a vacancy occures in the ' Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at least five (5) working days prior to the established closing date when advertised within a ministry or it shall be adver- tised for at least ten (10) working days prior to the established closing date when advertised service-wide. All applications will be acknowledged. Where practicable, notice of vacancies shall be posted on bulletin boards. f i 6 - 4. 2 The notice of vacancy shall state, where applicable, the nature and title of position, salary,' qualifications required, the hours-of-work schedule as set out in Article 7, Hours of Work, and the area in which the position exists. 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 cf continuous service shall be a consideration. " The evidence is clear, that had the successful applicant, Mrs. Derbyshire, applied for the first posting that she would have been awarded the position. The difficulty was that she was unable to apply for the initial posting because she was a part-time Employee and therefore ineligible to apply for a restricted posting. The evidence indicates that Mrs. Derbyshire is a woman of considerable maturity, stability and experience in various supervisory capacities . It is not surprising that she has been the recipient of several complements from visiting Supreme Court judges on her performance. From the evidence presented, it was also clear to the Board that Rrs. Derbyshire's qualifications are superior to those of the Grievor. Accordingly, it would serve no useful purpose in elaborat-::g upon the evidence of the respective qualifications of the two Parties involved. 7 This Board is concerned about the effect of the second posting, bearing in mind the Marks Award dated April 23rd, 1981 (566-80) of Chairman J. F. W. tiveatherill. Undoubtedly the f act situation at hand differs from the Marks case, and yet this Board is of the opinion that the principle involved is identical, namely that the subsequent job competition must be deemed a 'hullity" in the circumstances. In the instant case, the job was properly posted on a "restricted" basis . The determination of a restricted or an open competition remains the sole prerogative of management. Management had the right, if it -had so desired, of selecting an open posting in the first instance. For some unknown reason, management decided to proceed on the basis of a restricted posting. The closing date was established, namely December 17th, 1979. Five candidates were interviewed, and we accept the evidence of Mrs. D'Brass a selection committee member, that all five original applicants met the basic qualifications for the position when the interviews had been completed. The Grievor applied within the time limit of the first posting, was granted an interview, and was undoubtedly qualified for the job. I - 8 We adopt the position that the Employer's actions in extending the established closing date in the first posting beyond the advertised closing date of December 17th, and the establishment of a second posting by management was both improper and unreasonable. Although there was no evidence of bad faith on the part of manageren*_, the competition was not carried out fairly. Article 4 . 1 of the Collective Agreement reads "the established closing date" , and there is nothing in that Agreement allowing for an extension of the time limit of the closing date. Unfortunately, Mrs , Derbyshire could not properly have been considered as an applicant for the first job posting. In the circumstances , the job in question should have been awarded to the Grievor, and the subsequent posting shall be considered a nullity. Accordingly, the Grievor shall be appointed to the position Trial Co-Ordinator, S. C.O. and Matrimonial Causes Clerk 5, General forthwith, with compensation for any .loss of earnings from and after January 8th, 1980 , the date of the second posting. One final observation is worthy of note, namely the procedure followed by the selection board in this instance. it appears that the selection board decision was based primarily on the interview of each applicant, and upon Mrs. Eperon's personal knowledge of the qualities and abilities of each of the applicants - a somewhat subjective approach. Apparently, each candidate was asked basically the same questions, and each were given equal opportunity to express his or her comprehension 9 - of the job, and his or her background experience . It would have been preferrable to have viewed the personal records, and evaluation doc•.;--' en- tation of each of the applicants in addition to the interview. It would be advisable for management to bear in mind the procedures set out in considerable detail for the filling of vacancies in the Quinn Award (149--77 Prichard) . The Board shall remain seized in the event that there is any difficulty in the interpretation or implementation of this Award. DATED at Brantford, Ontario, this 24th day of July, A.D. , 1981. RICHARD L. VERITY, Q.C. er E. R. O'KELLY M. PERRIN