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HomeMy WebLinkAbout1982-0419.Lansey.83-06-29IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVAI6SETTLE&???OARD f Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Edward J. Lansey) Griever - and - The Crown in Right of Ontario (Ministry of Correctional SerViCeS) Employer J. F. W. Weatherill Chairman P. Craven Member A. M. McCuaig Member M. Mercer-OeSantis Grievance Officer Ontario Public Service Employees Union P. Van Home Staff Relations Officer Personnel Branch Ministry of Correctional Services ., j. ~. ;. March 23, 1983 -2- DECISION In this grievance, dated June 29, 1982, the griever, a Correctional Officer 3 and an employee of some six and one-half years' service, alleges that job competition CI-0015-82 was not held in good faith, and he claims entitlement to be assigned to the position in question, that of shift supervisor. The employer raises the preliminary objection that the matter is not arbitrable, in that the position in question is one outside the bargaining unit. It was agreed that the hearing in this matter would be limited to that issue. This Board is established under the Crown Employees Collective Bargaining Act, and its jurisdiction is conferred under that statute. Our jurisdiction is to arbitrate grievances arising under a collective agreement governed by the Act and, in addition, to determine matters of thesort referred to in Section 18(2) of the Act. The instant case is put forward as one arising under a collec- tive agreement. It was not put forward as one coming within the scope of Section 18(2) of the Act, and in our view it is not such. The provision of the collective agreement which is said to have been violated is article 4 thereof, which is as follows: - 3 - ARTICLE 4 - POSTING AND FILLING OF VACANCIES 4.1 4.2 4.3 4.4 OR NEW POSITIONS When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargining unit, it shall be advertised for at least five (5) working days prior to the established closing date when advertised within a ministry, of 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. 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. In filling a vacancy, the Employer shall give primary consideration to qualifica- tions and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. An applicant who is invited to attend an interview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend the interview, provided that the time off does not unduly interfere with operating requirements. The position in question is, it is agreed, one not coming within the bargaining unit. By article 4.1, a vacancy "for a bargaining unit position or a new classified position" is to be advertised in accordance - 4 - with the provisions of the article. Since the position in question was neither a bargaining unit position nor a new classified position, we conclude that itwas not one required to be advertised under article 4.1. Reading the provisions of article 4 as a whole, it is our view that it does not deal with the matter of filling non- bargaining-unit positions at all. Thus, where article 4.2 refers to "the notice of vacancy", it clearly refers to the notice required by article 4.1, and where article 4.3 states what is to be done "in filling a vacancy", the vacancy referred to, in our view, is one of the sort described in article 4.1. The heading of the article is an appropriate general heading for the text which follows, and cannot properly be read as somehow expanding the classes of vacancies dealt with in article 4 to those in positions outside the bargaining unit. This matter was dealt with at length, and to the same effect, in the Cunningham case, 279/79 (Jolliffe), which was followed in the Dunn case, 13/79 et al. (Teplitsky). In the instant case, counsel for the union invited us to review the Cunningham case, and we have done so. The doctrine of stare decisis does not apply with respect to the decisions of this Board. It may be thought a wise counsel for the Board to follow its own decisions, unless -5- it clearly appears that it should not do SO. However that may be, it is our view in the instant case that the reasoning and the conclusions reached in the Cunningham case were, with respect, correct, and that that case should be followed. i--’ to which that the tion was The matter is, we find, not one with respect this Board has jurisdiction. It may be noted grievor alleges not only that the job competi- not held in good faith, but that his rights under Section 3 of Ontario Regulation I 881 were not respected. That section is as follows: \/c- 3. Wherethequalifications of applicants for any position in the civil service are equal, preference shall be given to those who were honourably discharged or retired from active service in Her Majesty’s forces in respect of, (a) the War of 1939 to ,194s: or (b) the Korean War, 1950-1953. R.R.O. 1980, Reg. 881, s.3. The grievor, prior to his employment with the Ministry, retired and was honourably discharged after some thirty years' service with Her Majesty’s forces. If indeed the griever's rights have been violated, there should be a remedy therefore, and there / -b- should in any event be a forum in which the griever's claim can be heard and determined. It may well be that such a claim would come within the jurisdiction of the Public Service Grievance Board. It is not, howeVeF, within the scope of our authority to make determinations as to the jurisdiction of that Board or of any other tribunal. In the instant case, our jurisdiction is exhausted upon our determining, as we do, that this matter is not arbitrable. For the foregoing reasons, the grievance is dismissed. DATED AT TORONTO, this 29th day of June, 1983. @A&-ALU1 J.F.W. Weatherill, Chairman WS’ x 'Craven, Member bQY@!G% A.M. McCuaig, Member 2: 1100 5: 1200 10: 0000 11: 0000