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Home My WebLink About1983-0354.Katchay.83-12-19354/83 IN THE MATTER OF AN ARBITRATION Under. THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (J.R.T. Katchay) Griever - and - The Crown in Right of Ontario (Ministry of Correctional SerViCeS) Before: J. F. E. W. Samuels Vice Chairman Taylor Member R. O'Kelly Member Mercer-DeSantis For the Grievor: M. Grievance Officer Ontario Public Service Employees Union Employer For the Employer: P. Mooney Staff Relations Officer Staff Relations Division Civil Service Commission Hearing: December 2, 1983 ( -2- The grievor is concerned that the Ministry should have looked to the pool of surplus employees under Article 24 of the collective agreement in filling the vacancy which was opened to competition CI-0064-82 (Revenue Clerk in the Ministry's Main Office in Toronto). Article 24 gives employees laid off "by reason of shortage of work or funds or the abolition of a position or other material change in organization" certain rights to be assigned to vacancies. In such cases, no competition is to be held. The parties agreed at our hearing on December 2, 1983, that we should hear only the arguments concerning the Ministry's preliminary objection that this is not properly an individual grievance and therefore the grievance should be dismissed. The grievor was not personally affected by the competition. He was not a surplus employee at all material times. However, he is President of the Local in which is found the position involved, and he is of the understanding that there are surplus employees in the Civil Service who could do the job. There are two sources of an individual's right to grieve bef0r.e this Board. Section 18(2) of the Crown Employees Collective Bargaining Act provides: In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; (b) that he has been appraised contrary to the governing principles and standards; or (c) that he has been disciplined or dismissed or suspended from his employment without just cause, t (y ‘I -3- may process such matter in accordance with~the grievance procedure provided in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final deter- mination applicable under section 19. --: This provision is not relevant in our case. : Articles 27.2.1 and 27.2.2 of the collective agreement provide: 27.2.1 An employee who believes he has a complaint or a difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference. .,,. 27.2.2 If any complaint or difference is not satisfactorily settled by the.supervisor within seven (7) days of :,, the discussion, it may be processed within an a.. ._ additional ten (10) days in the following manner. .- ..;c; r: '9 ?, The grievor argues that he does indeed have a "complaint" or "difference". ;. b,?~. It is clear in the jurisprudence that an individual grievance must concern the griever's own situation, and one must read the words "complaint" or "difference" in light of this established law. Reference is often made to E Canadian Broadcasting Corp'..and National Association of Broadcast Employees and Technicians (1973), 4 L.A.C. (2d) 263 (Shime), where the board speaks of four types of grievances (at page 266): (a) individual employee grievances where the subject- matter of the grievance is personal to the employee; (b) group grievances where a number of employees with individual grievances join together in filing their grievances. This type of grievance is really an accumulation of,individual grievances; (c) union or policy grievances where the subject-matter of the grievance is of general interest and where individual employees may or may not be affected at the time that the grievance is filed; . . . c-’ (d) there is a hybrid type of grievance which is a combi- nation of the policy grievance and the individual grievance. In this type of situation, although one individual may be affected, he may be affected in a way that is of concern to all members of the bargaining unit. Thus, the individual may grieve on the basis of how he is particularly affected while the union may also grieve citing the individual case asp an example of how certain conduct may affect the members of the bargaining unit generally. While there has been a tendency to broaden the scope of the Union's right to file policy grievances (see, for example, Re Corporation of Borough of Etobicoke and ‘Etobicoke Civic Employees' Local Union No. 185 (1980), 28 L.A.C. (2d) 1 (Shime)), for good reason there has been no similar tendency with respect to individual grievances. Palmer sums up the law correctly when he says: Generally speaking. the key to when one can institute an individual grievance is the existence of management action which specifically affects the individual grievor in an immediate and tangible way. (Collective~Agreement Arbitration in.Canada, (2nd edition, 1983), at page I/5) If the grievor were to proceed'with his grievance here, this Board could be put in the position of ordering the employer to look to a pool of surplus employees, none of whom was qualified for the job, and more importantly, none of whom was interested in the job. If there is an aggrieved surplus employee, he or she can file a grievance. The grievor's "complaint" or "difference" here is no different from an employee who is concerned about someone else being disciplined, when that someone else does not feel unjustly treated. Surely no grievance could be filed because one has a "complaint" or "difference" concerning discipline meted out to someone else. An employee may have many concerns about management's actions a ,* . -5- 5 or policies generally, but it is only when the action or policy actually affects the employee that there can be a"complaint" or "difference" under the collective agreement. The grievor has no personal stake whatsoever in the outcome of his grievance. His employment is totally unaffected by the employer's actions in competition CI-0064-62. For these reasons, we find that the grievance fails. There is no “complaint” or "difference" which is arbitrable here. Dore at London, Ontario, this day of A? a--- k , 1983. E.R. O'Kelly, Member ; . ,< ” F 1. 2. 3. 4. 5. - 6 - EXHIBITS Grievance Form Opportunity Bulletin Stage 1 Reply Stage 2 Reply Notice to third party