Loading...
HomeMy WebLinkAbout1982-0364.Rhodes.82-11-24364/82 Interim Decision II IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Ms. Linda Rhodes) Grievor - And - The Crown in Right of Ontario (Ministry of the Attorney General) Employer Before: J.W. Samuels .Vice Chairman I.J. Thomson Member G. Peckham Member For the Grievor: S.T. Goudge, Counsel Cameron, Brewin & Scott For the Employer: H.J. Laing, Counsel crown Law Office Civil Ministry of the Attorney General For the Intervener: W. Andreou, Counsel Hearing: November 8, 1982 .-__’ --A -2- Introduction The grievor is a Clerk 3, currently employed by the Ministry at the East Mall Court Office in Etobicoke. For personal reasons, she wants to work at the Sheppard Court Office, and began trying to make this move in the latter part of 1981. As we shall see, there is no doubt that she made this desire to move very evident to the Ministry. Unfortunately, when a position just like hers became vacant at the Sheppard Court Office, the Ministry simply ran, a competition without any special notice to the grievor of the competition. The grievor never did know of the competition until long after some other person had been selected to fill the position. The grievor now argues that she should get the position. The successful applicant was given notice of our hearing and was represented by counsel. At the request of the parties, we will hear this matter in two parts. On November 8, we were asked to hear evidence and argument only.on the following questions: 1. Did the grievor get notice of the competition? 2. Was the grievor entitled to personal notice of the vacancy? 3. Should she have been considered as an applicant for the position, even though she did not fill out a formal application form in response to the notice of xompetition? ,If the grievor succeeds inshowing that the competition was faulty, we will hear evidence and argument on whether or not she should -3- get the position. That is, that she would have won the competition if she had been in it. At the conclusion oft the hearing on November 8, the Board met in executive session and decided unanimously upon the following preliminary award: Full award will follow, But the Board now’rules that the grievor succeeds on at least one basis - that is, that the notice of vacancy was not properly posted at the East Mall office for the 5 days required by,Article 4.1 of the Collective Agreement. We shall reconvene to determine two issues: 1. Whether the grievor, if she had been an applicant, would have obtained the position relative to the applicants who were considered? 2. If she would have succeeded/the remedy to be granted? This is our full award on the preliminary matters raised by the parties. Facts The grievor began her employment with the Ministry in 1975 as a Clerk 3 Typist at the Sheriff’s Office on University Avenue. After some three years there, she applied for and succeeded in the competition for a Clerk 3 position at City Hall. Less than one year later, she was laterally transferred to the East Mall Court Office at her request, made for personal reasons. In the fall of 1981, she knew she would soon be married and would be living near the Sheppard Court Office. On November 10, 1981, -4- she wrote to Mr. D. Avery, Administrator of the Provincial Court Criminal Division, to make known her interest inmoving (Exhibit 4): I expect to be marrying in January and will be residing in Thornhill as of February lst, 1982. If possible, I would appreciate a transfer to the Sheppard Court Office at the earliest oppor- tunity in the new year. I have been a court clerk (general 3) for almost four years. Previous to being a court clerk I worked for three years at the Sheriff’s office as a clerk 3 typist. Please find enclosed a copy of my resume for your perusal. In the event that no vacancies occur at the Sheppard Court Office I would accept a transfer to the Finch Court Office. However, my recent three year’s experi- ence in minor traffic are likely more applicable to the Sheppard Court. I would appreciate hearing from you as to whether a suitable transfer opportunity is likely to arise, so that I can make the necessary personal arrangements. The resume mentioned was a full one, containing all the information necessary for the Ministry to know her background and qualifications (Exhibit 5 is the same as the one enclosed, except for her new address 1. Mr. Avery responded on December 9 (Exhibit 6): I am responding to your request dated November 10, 1981 for a lateral transfer to.North York P.O.C. Our policy is to locate staff in Courts. as close as possible to their residence and therefore will consider a transfer for you as soon as practicable. This means whenever a .positidn is vacated through advancement, resignation or normal transfer. However, the process can be expedited if you are able to contact a Courtroom Clerk (Clerk 3 General). presently at North York who is interested in exchanging with you i.e. transferring to Metro West. *. .~. -5- 1 am certain that the Supervisor of Court Services will be agreeable to assist in this matter. Finally, please accept my best wishes on the _ occasion of your forthcoming marriage. Copies of these letters were sent by Mr. Avery to his Deputy Administrator, Mr. Pado, who was then in charge of initiating the process of filling any vacancies, and the Supervisor of Court Services, Mr. Cresswell. There followed in December several phonecalls from the grievor to Mr. Avery enquiring about a vacancy at the Sheppard Court Office, and each time she was told there was no vacancy. As well, enquiries were made over the phone and in person by Mr. L. Blackburn, a full-time Justice of the Peace, and Mr. Ayres, the Local Union President. These gentlemen always received the same answer-- there was no vacancy at the Sheppard Court Office. On or about December 23.(the grievor said that it was December 31, but we.accept Mr. Avery's testimony on this point), Mr. Avery was on his rounds wishing a "Merry Christmas" to his staff. At the East Mall Court Office, the grievor went up to him and introduced herself. Again she mentioned her desire to move and was told that there was no vacancy. The grievor testified that he then undertook to inform her of.a position when one became available. We accept Mr. Avery's testimony that he did not make such a promise. From the testimony at our hearing, we can understand how the gr.ievor might have formed this impression that a promise had been made, but we accept that no such undertaking was in fact given. ‘:. _i - 6 - At this point, it should be said that, each time he gave an answer, Mr. Avery consulted first with his Administrative Services Section to see whether or not there was a vacancy at the Sheppard Court Office. This Section handles some of the documen- tation when there is- a vacancy. However, the evidence at our hearing made’it clear that the best source of information would have been the Human Resources office at 18 King Street East. Mr. Avery never checked with this office. In fact, a competition for a Clerk 3 position at the Sheppard Court Office was posted on December 31, 1981 (Exhibit 7), with a closing date of January 12, 1982. The competition was made necessary when the Clerk 3 at this.office, who was on maternity leave, decided not to return to work. The location of the position was said to be .“Toronto, Ontario”. Had the grievorseen this notice, she would shave enquired the precise office, and would have responded to the ~posting when she learned it was for the Sheppard Court Office. However, we accept as a fact that this notice was not up at the East Mall Court Office for the requisite 5 days called for by Article 4.1 of the Collective Agreement. The grievor testified that she checked the bulletin board every day and was working when it,would have been posted. Mr. D. Brain, the Union Shop Steward, who works at the East Mall Court Office, came to our hearing under sub-poena and testified that he did see the .notice once. But on cross-examination, he made it clear that he did not know if it was up for any longer than the brief period when he saw it, and he ! :. -7- may in fact have seen another similar notice (this one was shown to him, but not introduced in evidence). We also heard. testimony from.the person who prepared the notice, butshe could say nothing about whether or not it was actually up at the East Mall Court Office. It was acknowledged that it should have been there. In sum, the evidence does not disclose that the notice was properly posted, and we accept the griever’s testimony that she was watching for it faithfully. When the competition closed, the Ministry ultimately selected Ms. Camposano for the position. Sometime in January 1982; Mr. Blackburn again made enquiry for the grievor and was told by Mr. Avery that there was a position for the grievor and she would be transferred. Mr. Blackburn is definite about this point, and we accept his testimony. Mr. Avery testified that her had told Mr. Blackburn that there was a vacancy, because that is what he learned from his sources. However, shortly after speaking with Mr. Blackburn, Mr. Avery learned that there was no vacancy. He tried to reach Mr. Blackburn, but to no avail. And when the grievor called Mr.. Avery after hearing the good news from Mr. Blackburn, she was told by Mr. Avery that he had made an error. In April, the grievor learned that she had missed the competition. * i -a- To explain his answers to the grievor and her enquiring friends, Mr. .Avery testified that two events in late 1981 accounted for the confusion. Firstly, when OHIP and a group at the Ministry of Revenue were moved out of Toronto, the Civil Service Commission decided upon a policy to handle the employees who did not want to relocate. Whenever a vacancy came up in any Ministry, these employees were to be considered before any competition was run. There would be a “true” vacancy only if this search of redundant OHIP and Revenue employees failed to turn up a person for the job. Thus, each time he made enquiry, Mr. Avery was being told that there was no “true” vacancy. Secondly, between December 9 (when he first replied to the griever’s letter) and December 23 (when they met for a “Merry Christmas”), the Ministry received two awards from th.is Board which now ruled out lateral transfers without a compe- tition. We will come to these awards later. In any event, Mr. Avery ,testified that he mentioned these awards to Mr. Blackburn and Mr.. Ayres ,~ but not to the grievor. And, since the grievor was interested in a lateral transfer, he was answering her correctly in saying there was no opportunity here. Conclusions In the first place, Article 4.1 provides: When a vacancy occurs 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) wozing days prior to the established closing date when advertised within a ministry, or it shall be advertised 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. (Emphasis added) - 9 - In our view, it is the Ministry’s responsibility to post the notice in a proper fashion so that it is “advertised”. In thi.s case, the only ~method of advertisement was posting on the bulletin boards. If the notice is not properly posted on the boards, and this includes a situation where the notice is put up by the Ministry but taken down by some unknown person, the Ministry remains responsible for the need to advertise the vacancy for 5 days. As we have indicated, the evidence shows that the posting was not proper in this case. Hence, on this ground alone, the competition becomes nuil and void, once it is challenged by the grievor. We could end our award here, but it would be best to deal with the other matters raised.by the parties, so that there will be some guidance from this Board for the future. Was the grievor entitled to personal notice of the vacancy? We have already said that Mr. Avery made no undertaking to give her such notice (he did make such an undertaking later in his response to the grievance, and this undertaking still applies--Exhibit 2 of May 21, 1982). While one might have expected Mr. Pado, the Deputy Administrator, to have thought of the griever’s letter and Mr. Avery’s reply when he made out the forms to begin the process of filling the Sheppard Court position (why else did Mr. Avery send him copies of these letters?), there was no legal obligation on the Ministry to make any special effort on the griever’s behalf. - 10 - The Ministry could not laterally transfer the grievor. This Board made that clear in Manson, 449/81, and McGuire, 207178. In these cases, this Board ruled that Article 4 governs the filling of vacancies and lateral transfers cannot be made as an exercise of managerial discretiqn. Hence, the griever’s letter and Mr. Avery’s reply had to be read as a clear expression of interest on the griever’s part to move to the Sheppard Court Office by competition, if necessary. It would be unreasonable to say that she evinced interest only in a lateral transfer. Clearly she wanted to move. If it was not possible to simply transfer, then she would compete. Should the grievor have been considered as an applicant? Here we accept the argument put forward by. the Ministry, that applications must be made in the regular way. The Ministry has many employees and it would be far too difficult to accept appli- cations at any time and for various jobs in general. While the grievor was interested in moving to the Sheppard Court Office, she had not identified any particular job at that office, and it would be unfair to impose on the Ministry the obligation of considering her letter (Exhibit 4) as an application for any particular job, including the one which did become vacant, even though it. was the ‘same job as she was doing at the East Mall. ~Her letter was not a response to the call for applications. However, there is a further point which must be covered, and wherein the Ministry’s responsibility is engaged. We accept that, towards the end of December 1981, when Mr. Avery told ! - 11 - Mr. Blackburn, Mr. Ayres and the grievor that there was no vacancy, there was in-fact a vacancy. It is simply not believable that a notice could be prepared and go up on December 31, given the Christmas holidays and other demands of the season, without the - Ministry knowing of the vacancy before December 23 or earlier. Mr. Avery was the Ministry’s spokesman. He was the griever’s direct manager, not her immediate supervisor, but h.e was clearly her manager. While we accept that he was telling the grievor and others all he knew, the Ministry must bear the responsibility if his information was incorrect. He misled the grievor to her detriment. If he had told Mr. Blackburn, Mr. Ayres and others that he was basing his information on his Administrative Services Section, and this information might.be incorrect, then matters would be different. But these people were entitled to rely on his information. After all, he was the Administrator. He would know whom to call to check on vacancies, and if he said there were’ no vacancies then it must be so. Indeed, it may .have been that when Mr. Avery told the grievor there was no position in January (we do not know the exact date of this), the competition was still open! The fundamental point is that throughout this period, the grievor evidenced her keen interest in moving to the Sheppard Court Office, and also made it clear that she was relying on Mr. Avery to give her the correct information about vacancies. While Mr. Avery had not undertaken to let her know of vacancies, he must have known that when an enquiry was made she was relying on him for the correct information. His evidence at our hearing made it clear that he knew the best source of information was the -~ .5 - 12 - Human Resources office, yet he never consulted them in preparing his answers to the various enquiries. Even if the posted notice had been adequate, we would have been prepared to permit the grievor to go on with her proof of qualifications, given that she was misled by the Ministry into. believing there was no vacancy, and therefore no competition. In conclusion, we shall reconvene to determine: 1. Whether the grievor, if she had been an applicant, would have obtained the oosition relative to the applicants who were considered? 2. If she would have succeeded, the remedy to be granted? Finally, it should be said that we heard no evidence or argument whatsoever on these points. Hence, it is possible, if necessary/for this Board to have a somewhat different composition for thenextstage. It may be very difficult to get all three members of this Board together again at a convenient time, and some change may be necessary. Done at London, Ontario, this ]qday of , 1982. “I concur” G. Peckham, Member 632522 - 13 - 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. LIST OF EXHIBITS Grievance Form Letter to grievor, May 21, 1982 Final response to grievor, June 24, 1982 Letter re transfer, November 10, 1981 Griever's resume Letter, to grievor, December 9, 1981 Posting, December 31, 1981 Letter to Clendenning, April 21, 1982 Letter to grievor, May 3, 1982 Letter from Blackburn,'July 14, 1982