HomeMy WebLinkAbout1981-0449.Manson.82-03-18- And -
The issue in this case is whether in the circumstances
the employer had an obligation under Article 4 of the applicable
collective agreement to observe the .provisions.and requirements
of that Article, in particular Article 4.1.
In June, 1981, Mr. John D. Manson was a Supply Clerk
and Hessenger, Clerk 2, Supply, in the Sheriff's office for t'he
Judicial District of York, within the Ministry of the Attorney-
General.
On June 24.,, 1981, Mr. Man-son presented the following
grievance :
I grieve that *he position of Supervisor, B and
NPlY -P-t having keen vacated by Mr. Pibale! cn, or
&out February, 1981, has hen foreclosed and that T wasn't
given anopFortunityt0 apply for same. Ihis action is contrary
to Article 4 of the subsistiq Collective Agreement.
The "Settlement Required" was the following:
5% jab of Supervisor, Resources ax? Supply Dqrbxnt.
However, at the hearing held on December 10, 1981,
Mr. M. Pratt, representing the Union and the grievor, said the
proposed settlement ias not appropriate and requested that the
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Board direct a posting of the position sought by Mr. Nanson pur-
suant to the provisions of Article 4. He further suggested that
thecompetition thereunder should be restricted to those eligible
at the time a competition ought to have taken place.
The third party involved, Mr. Robert Campbell, had been
subpoenaed by Mr~. Pratt as a witness, but was not called on to
testify. He was given an opportunity to make representations to
the Board, but said he had "nothing to add."
The facts are not.in dispute. Prior to February, 1981,
there was a position in the Sheriff's office classified as Clerk 4,
General, and described as "Clerk, Administrative Services." It
had been described in a "Position Specification and Class Allocation
Form," dated August 5, 1978, Exhibit 3. .The incumbent of the
position was a Mr.Whaley, but he vacated it in February, 1981.
At no time thereafter'was that positio‘n filled.
On June lC1.1981, an evaluator approved a "Position
Specification and Class Allocation Form," Exhibit 4, for the
position of "Resource and Supply Officer" in the Sheriff's office,
with a class allocation of Clerk 5, General.
A comparison of Exhibits 3 and 4 becomes necessary.
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Exhibit 3, referring to the "Clerk, Administrative Services" in
the Sheriff's office, classified Clerk 4, General,had a position
code number of 02-8310-45, which was designated (in 1978) as a
"revised ".classffication. The purpose of the positionwas stated:
"To supervise a small stock room supplying several sections of the
Sheriff's office and to provide a variety oft administrative
services."
Exhibit 4. referring to the position of "Resource and
Supply Mficer' in the Sheriff's, office with the classification
Clerk 5, General, gave the "Purpose of Position" as follows: "To
-. _. maintain and supervise the Sheriff's pound locations for the storage
of goods received, the receipt and distribution of supplies,. and to
perform a variety of related administrative tasks." The position
code number is 02-8310-03, and it is designated by Exhibit 4 as
a "new" position. -
Both documents say the incumbent is responsible to
the Senior Deputy Sheriff and that there is only one incumbent
with no one supervised indirectly and one person supervised
directly.
Most of the'duties and responsibilities specified in
Exhibit 4 are similar to those specified in Exhibit 3. However,
there are some differences.
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In Exhibit 3, giving reasons for the classification
chosen in 1978, the evalu.ator said:
Variety of responsible clericaltasks in the maintenance of a
smallstockrocm and several storage areas as well as in the pnM.sion of administrative services. Complete familiarity
tithwideass ortmentof stock and moveable assets printing requirements .a& options required.
hdgment required in establishing adequate supply levels, resoluticn
of huilding maintenance matters, supervision.
Fhysical se@ration affords little opportunity for supervision.
On the other hand, in Exhibit 4, the reasons given by
the evaluator in June, 1981, were the following:
Pasition involves Fespsnsible clerical duties requirhg a thorough
knowledge ad urxierstanclhg of the Sheriff's Cffice system, its
maintenance ad admbistraiive services mquirements.
booties include: su~ising,the receiptanddistritutionof stcck
and supplies; supervision and m+rdination cf facilities for the
storage ad maidenaxe of seized gods; ensuring the maintenance of the Ccurt bxse ad Sheriff's mice assets.
Nature of position precludesdirectsupervi.sion.
It clearly appears on the face of the two documents that
the position of "Resource and Supply Officer," although it has
undoubtedly replaced the former position of "Clerk;Administrative
Services," involves somewhat larger responsibilities, and that the
two position are distinct. In short, the position described in
Exhibit 4, appro.ved on June 10, 1981, was a "new classified
position," and it is conceded by Mr. Pi~tkin on behalf of the
:s
i
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employer that it is "in the bargaining unit."
On these facts, the new position seems to fall within
the language set out in Article 4.1 of the collective agreement,
which is as follows:
'&en a vacancy occurs in the Classified Service for a
bargaining unit psition 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 tien
advertised within a ministry, or it shall& advertised for at
least ten (10) varking days prior to the established closing
date when advertised service-wide. AU applications will'&
xknowledged. We practicable, notice of vacancies shall be
psted on Ladletin bards.
The. heading over Article 4 is not without significance:
"POSTING AND FILLING 9.F VACANCIES OR NEU POSITIONS,n
Nevertheless, officials of the Ministry took a different
view of the matter. In substance their position is that the
appointment of Mr. Robert Campbell to fill the new position w&s
merely -a transfer from. another position, in which he had held
the same classification, i.e. that of a Clerk 5, General: Ilore-
~- . over the employer considers it had good reasons for. effecting the
transfer and that its was in.the best interests of the employee,
Mr. Campbell, as well as being in the best interests of the
employer.
.
The employer's initial responses may be seen in a
sequence of documents now to be quoted. '
On June 22, 1981, Mr. 8. Kashuba, Deputy Sheriff,
addressedthe f,ollowing memorandum, Exhibit 5, to "John Hanson,
Supply Clerk" and"Alistair Uheway, Supervisor:"
Iampleasedto advisethatL~.i+obertCampbellhasbsen
addedtb the SWriff's staff cn a transfer from the C&nty
Ckurtof the Jticial District of York.
.Mr. CampW.1~~11 assume resrrnsibilities as supervisor of
the Resources ad Supply department of the Sheriff's Qffice ard will co-sdinate ard liaise with-e. 'Kheway in this
area.
Yair assistance arrd m-owatim will not only be appreciated
by the deparrtmentbatby Mr. Cam&eU as well. &look for an orderly transition ia this area.
The information given in the memorandum quoted~above
gave rise to Mr. Manson's grievance of June 24.
In reply to the grievance, Mr. Kashuba wrote the grievor
on July 2, Exhibit 5A, as follows:
'LX.?, letter is in respnse to your gri.ev.am+e dated June 25, 1981.
The position vacated by &. wheway is still vacant ard is
presently uder review. Inasmu& as the'position of Resource and
Supply Cff+r resulted from the t?ansfet of furris and the inarnbentfrom the ccunty Wt. Ycrk to the Sheriff's Office, no
~. vacancy existed ad article 4 afthe Collective Agr-nt Was rot violated. Far this reason I am unable to grant the settlement
requested.
On July 22, Mr. Allan K. Chan, Regional Personnel
Administrator, wrote Mr. Campbell, notifying him that a meeting
would be held to discuss Mr. Manson's grievance and that he should
attend~to make representations on his own behalf. The letter is
Exhibit SB.
On July 31, Mr. Chan wrote another letter, Exhibit SC,
addressed to Mr. Manson, giving his decision:
Pursuant to ok meeting CnJuly 28, 1981, I have carefully considered all thematters !&ichwere raised ard muld advise
yh ofmydecision, as follows.
'Ihe transfer of Mr. R.B. Canpbellto the position of Resource
ard Supply CfEicer was notin contraventionof the Collective Agree-
ment. Irxieed, ths award of the said Position to you, as you reguested, cn a promotion without competition tid clearly violate rot only the
letterlxt also the spirit of that Agreement.
If you are'mt satisfied with my decision, ycxl should instru&
your Union Representative to apply to the Grievance Settlement Bcerd for a hearing within 15 days of the specified time limit for receiving
this decision.
From the above correspondence it emerges that.the
employer thought there was "no vacancy" when Mr. Campbell received
his transfer. Indeed it has been argued by Mr. Pratt before this
Board that "the es'sence of this case is whether there was a
vacancy. '4
Itseems to have been overlooked that the language of
Article 4.1 is by no means restricted to the filling of a "vacancy."
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The opening words of 4.1 also expressly refer to "a new classiriad
position..... created in the bargaining unit." In the opinion r
of this Board, this is the crux of the matter: Was there a new
position created in the bargaining unit?
Written in his capacity as "Regional Personnel Xdminis-
trator" and "Deputy Minister's Designee," Mr. Ghan's reply of
July 31 pointed~ out that to promote the grievar without competition
would violate both the letter and the spirit of that agreement.
That statement was correct but irrelevant in its context. The
issue was not whether Mr. . Manson should be promoted to the position.
The real issue was whether the employer had vio.lated its obligations
in Article 4 bye failing to post the new position and hold a
competition.
Mr. Pitkin ,argued that this Board has no juri~sdiction,
since "Article 4 does not, a.pply." He explained that Mr. Campbell
had been transferred from the County Court's office where-he had
failed to perform accounting duties satisfactorily. The position
of Resource and Supply Mficer in the Sheriff's office was un-
occupied at the time of the transfer. (Being a new Position it
was obviously "unoccupied" 1 ..~ Mr. Campbell had not grieved against
his transfer. Under Section 1811) of The Crown Employees Coliective
Bargaining Ac,t, the employer had a right to transfer an employee
and the "propriety" of the transfer was not in question, according
~,.~.
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to Mr. Pitkin. He said that between February and June the job
in the Sheriff's Office had been "rewritten." (It was in fact
a "new" position, as stated in Exhibit 4). Prior to that time
the grievor had been directly supervised by ti. Wheway, but is
now supervised by Mr. Campbell. Then and now he was only a Cler!k 2,~
Supply, being a Supply Clerk and Messenger. Mr. Pitkin added
that the grievor had-been with the employer since ?larch, 1958, but
that Mr. Campbell had served sinceI~l967 after two or three years
in a provincial court position.
Further, Mr. Pitkin argued that the right to transfer
by reason of incompetence was well:.documented in the jurisprudence,
and he cited several cases in the private sector. They are simply
not applicable to this case. The same’is true of Prew 114/78,
a decision authored by Mr. Adams, in which'he found a dismissal
for incompetence (after a transfer) to be an excessive penalty,
and suggested that the grievor ought to have been transferred to
\ a more suitable position.
A&O inapplicable is Watters 36/79, in which the griever
was complaining of a "lay-off" by reason of incompetence. !4r .
Pitkin said that aA& these cases, read in the light of Section
18(l) in the Act, mean that there is a right to transfer employees
for good and sufficient reasons.
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Mr. Pitkin further submitted that a vacancy does not
exist when there is a reasonable need to transfer another employee.
The idea has some merit because, as Hr. Pratt conceded, cases may
arise in which a transfer could be justified for "compassionate"
reasons. Be that as it may, we find no words in Article 4 to
permit it, and of course this Board cannot read into an agreement
something that just isn't there. We must take the agreement as we
find it; only the parties can amend it.
Although factually distinguishable, one case cited to
us has some bearing on the issue. In McGuire 207/78, Vice-
Chairman Swan reviewed several previous decisions under Article 4,
and made the following observation at page 7:
Article 4 was,:.= were informed, first inserted in the collective q-r-nt by an interest arbitration award dated
January~28, 1976 issued by a Ecmrd chaired by Mr. H.D. Brown.
It hassuhsequently been included in successive allective
agreements ad sl.ightlymdified. It has thus both been the
subject aE collective bargw a-d has been included within
the prprted "jurisdiction of a board" (of arbitration).
In the McGuire case, a Clerk 3, General, alleged that
"Management violated Article 4..... by filling a job without first
posting it." What had happened was that a Court Reporter 1
position in Windsor became vacant when the incumbent won a pro-
motion. A Toronto employee with a higher classification sought
a transfer to Windsor by reason of her forthcoming marriage.
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Although it involved a demotion to a lower classification she
was offered and accepted the Windsor position which had been
vacated. It was a case of "filling a vacancy" and not an
appoi~ntm~ent to a new position.
In thatcase, as in this case, the employer's argument
was based chiefly on the provisions-of Section 18(l) (formerly
17(l) before the new consolidation) which is as follows:
Every collective agreement shall be deemed to provide
that it is the exclusive fuxtion of the empioyer to manage,
which function, without limitirq the generality of the fore-
going,ticludestherighttodete.mnine,
(a) employment, appointment, complement, organization,
assignment, discipline, dismissal, suspension, wxk
methcds and procedures, kii$s and locations ti eguip-
ment and classification of psitions; and
(b) merit system, training ard devel&ment, appraisal and
sqerannuation, the governiq principles of tiich are
subject to review.by the employer with the bargaining
agent.
and such.matters will not be the subject of collective bargaining nor came tithirthe jurisdiction of a board. <
It would be wrong, however, to consider Section 18(l)
in .a vacuum. Reference must.also be made to Section 7 (formerly
Section 6) which relates to the scope of bargaining:
:
Upon hsinggrantd representation rights, the employee
organization is authorized tc bargain with the employer on
terms and conditions of employment, except as to matters that
are exclusively the function of the employer de- subsection
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18(l), ard, without Limit* the generality of the foreqoing,
includiq rates of remuneration, hours of work. overtime arzl
other,premium allow%nc& for wxk performed, the mileage rate payable to an employee for miles travelled when he is required
to use his own autcmobile on the employer's Ixsiness, benefits
partsiniog to time notwrkedby employees inclw paid holidays, paid vacations, group Life insurance, health in-
surance and lorg-term income protection insurance, promotions,
demotions, transfers, lay-xffs or reapFoi.ntments of employees, the procedures applicable ta theprocessingof grievances,
the classification .a& job evaluation system, ard the conditions
applicabie to leave3 of absence for other than any elective
public office or political activities or traininq and development.,
i It will be noticed that Section 7 above specifically
authorizes bargaining in relation to "promotions, demotions,
transfers, lay-offs or reappointments of employees." The parties
have so bargained and agreed, particnlarly in Article 4, and it is
futile to pretend that the Article relates only to "promotions."
Indeed, when a competition is held to fill a vacancy,or a new
position,. employees at the same level or a higher level have
every right to apply, although success would not mean .a promotion.
Incidentally, the word "promotion" appears nowh,ere in Article 4.
After discussing both Sections in the Act, i.e. those
,which are now 7 and 18(l),the Board decided in McGuire (4up&zj
that Management had erred. Referring to the appointee transferred
from Toronto, the Board said at page 18:
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She had, indeed, compassionate grourds for seeking a transfer. Eut who can know, when the job was not posted, how many other qualified
employees (cerhaps even better qualified, more senior employees) might have had even more compelling compassionate grourds? :+a aiso
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.
observethatcompassionate grounds are not listed among the criteria
for selection under 4.3, bk that wuld not pevent the parties -
both Lbion and hployer - from waiving the clause in appropriate
compassionate circomstarzes.
The Board concluded:
L-I the result, we fird the failure to post pxition 7X0-14 in
Windsor was in breach of clause 4.1 of the agreement, as was the
selection of Miss Damphouse to fill that job contrary to clause 4.3.,
'rk therefore make a declaration that the grievance is upheld, ard
the Board shall remain seizedaf this matter pending any final
disposition of the grievance by the parties.
We are of the opinion that the principle was made
clear in McGuire, even though the facts were somewhat different
from the facts in this case. It is our conclusion that the
plain meaning of Article 4.1 must be respected, and that the
new position to which Mr. Campbell was transferred must be
advertised, with 'all the usual consequences. Since the appoint-
ment.of Mr. Campbell was not valid, the new position becomes
"vacant" and 'Ihe requirements of 4.2 and 4.3 must be met.
The relief sought by the griever was not appropriate,
but the substance of his grievance is upheld.
.., .
DATED at Toronto this 18th day of Harch, 1982
Mr. E.B. Jolliffe, Q.C. Vice Chairman
Prof. F. Collom Member
Mr. E. R. O'm Member