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HomeMy WebLinkAbout1980-0504.Heffering.81-06-22Between: IX THE MATTER OF AN ARBITRATION Under The CROW4 EXF'LOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVAXCE 3ZTTLENF3T BOARD Mrs. 6. Heffering Grievor, - And - The Crown in Right of Ontario (Ministry of Consumer and Commercial Relations) Employer. Before: &-of. R. J. Eelisle Vice Chairman Mr. E. R. O'Kelly Xember Ms. J. Best Slember For the Grievo_r: ifr . S. T. Goudge, Counsel Cameron, Brewin & Scott For the Employer: Mr. R. Itenson, CouIisel Staff Relatincs Divisi.on Civil Service Commission Hearing: June 8. 1981 ;.< : .: ., \ .“, -. ~ ,A - 2.- q. : RULING ON RELEVANCXAND MATERIALITY (.. The griever's statement of grievance dated July 24, 1980 recites: I grieve that I have been denied unfairty a promotion to the position of CZerk 5, Genera2 (Senior Title Records Analyst) as posted in CR 167/80. and as settlement required: I request that I receive the promotion and the salary effective the date it was filZed by the successful applicant. Prior to the said posting the grievor was at the Clerk 5, General level in an acting capacity as Deputy Land Titles Registrar. The grievor appiied for two posted vacancies at the Clerk 5, General level and was unsuccessful; she was advised at the time that if she was unsuccessful she would be cut back in pay to Clerk 4, General as her then existing job was being eliminated. The above was described in an opening statement by counsel for the grievor who then characterized her complaint as being with the whole process c of denying her the vacancy and then demoting her. Counsel for the grievor maintains that at the time of the posting the grievor, though not officially designated a Clerk 5, , General was then legally entitled to be treated as a Clerk .5, General, had therefore certain "bumping rights". when her position was eliminated and should have been simply transferred to one of the new vacant positions without the necessity of competing with others for promotion; it was to that theory that counsel proposed to lead his evidence. Counsel for the :‘- I, ;y -3- employer claims that he is totally surprised by this c characterization as he came prepared to dispute a straight- forward promotion-posting grievance; counsel for the grievor admitted the fairness of the claim of surprise and allowed that he would not oppose an adjournment to allow for prepa- ration by the employer. The issue before the Board is whether the grievor can proceed at all with this grievance along the line of attack that has been chosen. The grievor now alleges that it was unfair to post both of these vacancies as one of them belonged to her as of right and that her consequent demotion on failure to achieve that position was wrong. The grievor may or may not be correct in these allegations, the employer may or may not have been unfair in a variety of ways, the grievor may or may not be able to sustain other distinct grievances, but the only issue before us at this time is whether these allegations can be entertained here given the grievance filed. The Board recognizes the wisdom ex- pressed by the Ontario Court of Appeal in BZouin lhywaZ% Contractors Ltd. v. United Brotherhood of Carventers. C.L.L.C. 14, 295: The company contends that the grievance must be strictly construed . . . No doubt it is the practice that grievances be submitted in writing,and that the dis- pute be clearly stated, but these cases shouZd not be won or Zost on the tech- nicality of form, rather on the merits and as provided in the contract and so the dispute may be ftnalZy and fairly resolved with simplicity and d2spatch. -4- The Board feels, however, that to accommodate the. grievor's present allegations within this grievance would require more than,simply a technical enlargement of form; it would require a very real change in substance. The Board recog- nizes that it must not strictly construe the grievance but also recognizes the necessity of giving some meaning to the words chosen by the parties. In fairness to both sides in their preparation and presentation and to assist the Board in understanding,and resolving the real dispute between the parties,that dispute must be framed with some accuracy. Unfairness cannot be alleged in the air. Accordingly,the Board rules that the,grievor cannot proceed alongthepath her counsel has described butratheris confined in presenting her case to the single issue of whether the grievor was unfairly denied a promotion because of a violation of Article 4 of the Collective Agreement which deals with Posting and Filling of Vacancies or New Positions. The Board offered to proceed on this basis but the griever's counsel insisted that it would be most difficult for him to separate out from the proceedings the grounds of unfairness described. In proceeding along the path suggested by the Board, the grievor's qualities and experience in her acting capacity.at the Clerk 5, General level'and the com- parison of the same to those of the successful applicant would of course be relevant in determining whether her promotion following the posting was unfairly denied but we cannot allow the creation out of that experience of 1 ? -5- ( another, completely independent theory of unfairness. Counsel for the grievor has asked for an adjournment to challenge this ruling and the same is granted, although with some reluctance considering the inconvenience to the witnesses who had come prepared to give evidence. DATED at Toronto this 22nd day of June, 1981. e$p-& Prof. I3.W Delisle Vice Chairman "I concur" Mr. E. R. O'Kelly Member "I concur" Ms. J. Best Uember P NOT? On October 8th, 1981, the Board was notified by the griever's counsel that the "grievance is being discontinued". Registrar October 9, 1931