HomeMy WebLinkAbout1983-0725.Ahluwalta and Vashist.85-09-12 i.
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CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT .
BOARD
180 DUIVDAS STREET WEST, TOROMM. ONTARIO. +u5G 1Z8-SUMF 1100 TELEPHONES 4181598-0888
725/83
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (V. Ahluwalia & P. Vashist)
Grievor
and
The Crown in Right of Ontario
(.Ministry of Transportation & Communications)
Employer :.
Before : I. C. Springate Acting Chairman .
W. A. Lobraico Member
S. Schachter Member
For the Grievor:
I. Freedman
Legal Director, Grievance Section
Ontario Public Service Employees Union
For the Employer :
P. W. Codner
Staff Relations .Officer
Personnel Services Section
Ministry of Transportation & Communications
Hearing: June 18 , 1984
_ .__.._ -_.�_..__—.�.._. �.._�--"^..'� .- .,_ -.—_, -:ra.. rs. .3"�r..-rte.•+.-r.r•-t--� _ _^—^.-e^,+-_
DECISION
These proceedinqs arise out of separate
grievances filed by Vinita Ahluwalia and Prabha Vashist . At
the relevant time, both Ms. Ahluwalia and Ms. Vashist were
employed by the Ministry of Transportation and
Communications in Toronto as "contract employees". As such
they were members of the unclassified public service, and
not civil servants .
In June of 1983 the Ministry posted notices
with respect to two competitions for positions within the
' classified service in Kingston. Traditionally, such notices
have invited applications only from employees within
the classified staff., The notices in question , however,
expressly stated that the competitions were also open ' to
"unclassified contract -staff employed at the time of
posting". Both of the grievors applied. Ms. Ahluwalia
applied with respect to a competition- where there were 12'
1
vacancies. Fifty-seven other individuals also applied.
Following a "pre--screening", the employer drew up a "short
list" of 31 applicants who were to be interviewed, including
Ms. Ahluwalia. Ms.. Ahluwalia was not, however, awarded one
of th'e positions. Of the 12 successful candidates, two were
members of the classified service. Tie other 10 were
contract employees in much- th,e same position as
Ms . Ahluwalia.
Ms. Vashist filed applications with respect to
both of the posted competitions . In the competition
- 2 -
referred to above, Ms. Vashist was "screened out" and not
laccorded an interview. In the other competition there were
42 applicants for nine vacancies. Ms. Vashist was also
screened out of this competition. it appears that with
respect to this competition one of the successful applicants
was from the classified staff, while the other eight were
contract employees.
The grievors then filed the grievances giving
rise to these proceedings . Both grievances allege that the
Ministry violated article 4 of the collective agreement, -
which provides as follows:
ARTICLE 4 POSTING AND FILLING OF
' VACANCIES OR XBW POSITIONS
4.1 When a vacanev 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 ten ( 14)
working days prior to the
established closing date when
advertised with a ministry, or it
shall be advertised for at least
fifteen ( 15 ) 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 .
4 .2 The notice of vacancy shawl state,
where applicable, the nature and
title of position, salary,
qualifications required , the
hours-of-work schedule as set out
in Article 7 ( tours of Work) , and
the area in which the position
exists. .
3
4 . 3 In Filling a vacancy, the Employer
shall give primary consideration to
qualifications and- ability to '
perform the required duties . where
qualifications and ability are
relatively equal, length of
continuous service shall be a
consideration.
4 .4 An applicant who is invited to-
attend an interview within the
civil service shall be granted time
off with no loss of nay and with no
loss of credits to attend the
interview, provided that the time
off does not unduly interfere with
operating requirements.
The employer takes the position that the
grievances are non-arbitrable in that article 4 of the . .
collective agreement does not apply to contract staff. In
this regard, the employer relies on article 3 of the
collective aqreement. Article 3 commences as follows:
3. 1 The only terms of -this'-Agreement
that apply to employees who are
not civil servants are those that
are set out in this Article.
Below this are _to- be found a series of provisions relating
to wades, holidays, vacation pay, attendance credits,
O.H.I.P. , bereavgment leave and health and safety. Also of
relevance is article 3. 14 which states as follow:
3 . 14 The following Articles shall also
apply to seasonal or part-time
employees : Articles 1 , 9 , 11 , .12,-
15, 16, 17, 21 , 22, 23, 25, 27, 32 ,
36 and 57.
4
Article 250 which is referred to in article 3. 14
deals with employee seniority, and provides, in part, as
follows:
25. 1 An employee' s length .of continuous
service will accumulate upon
completion of a probationary period
of not more than one ( 1 ) year and
shall commence from:
(a) the date of appointment to the
Classified Service for those
employees with no prior
service in the Ontario Public
Service; or
(by the date on which an employee
commences a period of
unbroken, full-time service in
the public service,
immediately prior to
appointment to the Classified
service.
"Unbroken service" is that which is
not interrupted by separation from
the public service; and "full-time"
is continuous employment as set out
in the hours of work schedules for
the appropriate classifications.
The employer 's position is that article 3 of the
collective agreement sets out those provisions which apply
to unclassified staff, and since it does not refer to
i
article 41 article 4 does not apply to the grievors. As for
the fact that contract employees were permitted to apply for
the positions in the first place, the employer contends that
while contract staff were permitted to compete for
classified positions, they did not have a right to grieve if
rejected. In this regard, the employer likens the position
r
� S i
of contract employees to persons not in the public service
who are seeking to enter the classified service .
The union contends that the grievances are
arbitrable. Relying on the fact that article 25, which .
relates to seniority, is ,one of the articles that applies to
non--classified staff, the union submits that the employer
was required to. consider . an employee's seniority whenever
seniority is referred to in the collective--agreement, and
r
further that this Board has jurisdiction to rectify any
failure on. its part to do so. In this regard, it is the
union's view that the seniority of the two grievor's was
ignored in the competitions in question, and since under.
article A seniority is a relevant factor, the collective
agreement was breached.
As already, noted, .the employer contends that the
grievances are non-arbitrable in that they make out no
possible violation of the .collective agreement. For the
purposes of deciding that issue , we. must assume that both
grievors have been continuously employed with the employer
for a longer period, of -time.. than 'at least some of the
successful candidates for the .two competitions, and that
the grievors possess_ not ,onI.y sufficient skill and ability
to perform the positions being- advertised , but greater skill
and 'ability than the successful candidates.
6 -
We are not aware of any cases that deal with the
fact situation before us. It is, however, qenerally
acceeted among arbitrators that for the Purpose of applying
for job ovenings , an employee's length of service should be
defined in the broadest possible manner . . This is true even
where the employee' s service has been outside of the
bargaining unit. See: Dominion Stores Ltd. (Sarnia)
( 1983) , 9 L.A.C. ( 3d) 238 (Roberts) and Northern Telecom
Canada Ltd . ( 1983) , 9 L.A.C. ( 3d) 225 (M. Picher) . The
grievors in our case were employed within the bargaining
unit. In these circumstances we believe it would be
appropriate to assume that they are entitled to .rely on
their length of service when applying for vacancies, unless
M the collective agreement clearly provides otherwise.
The wording of the collective agreement in this
case creates qenuine problems for the grievors. The
grievors allege that the employer has violated article 4. 3
which requires the employer to consider qualifications and
ability, and sometimes "length of continuous service" in
filling a vacancy. However, article 3. 1 provides that the
collective agreement applies only to "civil servants" ,
subiect to the other provisions of article 3 . The grievors
are not civil servants. Is there anythinq in article 3
which provides them with assistance? Article 3 . 14 vrovides
that certain articles - includinq article 25 - avoly also
-7 -
"to seasonal or part-time employees". The grievors appear
to be neither seasonal nor part-time employees . However ,
the employer. representative at the hearinq made his
submissions on the basis that the grievors were covered by
article 3 . 14. In these circumstances , we are prenared to
assume that article 3. 14 does apply to the grievors .
Article 3. 14 refers, to article 25. Article
25, 1 ( b) indicates that service in the unclassified service
should be counted in determining length of service of an
employee who is now in the classified service. It follows
that with respect to an employee already in the classified
service, this Board would be entitled to look at the
employees' continuous service, including the time spent in
the unclassified service. However, nothing in article 25
provides that an employee who is still in the. unclassified
service can rely on her service in 'the unclassified service
for the purposes of article 4. Accordingly, article 25 does
not assist the grievors in any way.
The grievors contend- that the employer has
violated article 4 of the collective agreement. Article 4 ,
however, does not apply to the grievors. Accordingly, even
if the grievors have an extensive service in the
unclassified service and a great deal of skill and ability,
and even if the employer ignored their service, skill and
i g
ability, the collective agreement would not have been
violated .
We would note that, in our view, nothinq is
altered by the fact that the employer indicated that
employees in the unclassified service could apply for the
vacant positions . In this regard the evidence does not
indicate that the employer intended, by advertising in the
unclassified service, to waive its rights under the
collective agreement. Further, there is no evidence to
indicate that in previous instances the emoloyer treated
applicants from the unclassified service as if they had full,
seniority rights, or that the union relied on any such
employer conduct to its detriment so as to now estop the
employer from exercising its rights under the collective
agreement.- This being the case, it is the wording of the
i collective agreement that must govern.
Aavinq reqard to the foregoing , the grievances
are hereby dismissed.
i
Dated at Toronto this 12th day of September , 1985 .
I. C . Sprin�gate
�Lc
W. A. Lo raico, Member _
"I dissent" reason to follow.
S. Schachter, Member
In ti-.-e of an Arbitration 725/83 49 A
undei ti ✓ - ��7inin�Mo Crown Erpkiyess COW. �
before
The Griprance -ettlerMent Board
;rr bet',rJ n
. ':.�F�Ei? ';v :�.1 ilU?r'all:• '.'-• F. '•i a�hist�
and
The Crown i:i rigrit of Ontario (I,4TO
Dissent
I hwn� the of the majority and find that I
The �,i-ievors in thas case are "contract eriipiovees" and as such are not
ci'?il ;er'? .lta. 'A?'.pile ori�inall', the of "�:ontract ernplo merit"
r>rt '� tf *ve ser'�ed the soclall;T useful purpose of permitting the' Cron
;o carry out special prc,«ral %7ithout 11a'•.'lnm tj create a permanent
joi) for" the lricurnbent It eeI?15 .!-ar that � Ic d'''?ice is now being;
used to .•atisf v regular oricoing public function_:. There is no lonv+er
anv reason to :ieri�l such incurnbents job security. Therefore if it Is
possible to interpret the applicable coll`ecti ve agreement in a fashion
that does not cteti�� fob security benefit: to tiis r7pe of ernploye?,
Boards of :arbitration Should vrefer such a result.
Firstly, I am not We to accept the conclusion of the ma 2orit1T set out
on page 6 that the ernp1c ver did not intend to waive its ri�ht to den��
enforceable- ,ob vostino, benefit: to the jZrie,?ors, while it asked the
Er:_plover 7h -I uld 1i1_elv�iave denied any such waiver it :riust be bound
1 . . Vic, , n ci a o l q a
,r ��; its' actions. It soa�,rit to indu�� try., m.�t qualified d pot.ntial
applicants to =apply for the fob whether or not tide=t were civil
w; sFrvants. As such the Ernplo per 1,`?Ished to infringe on the seniority
f'.,. rights of civil s?• (ants by in,.cn?a3ing the field of applicants o that it
s �r70uld },r les_ lil�el�� it ,7ould ha--e to decide on the basis of length of
contir:uous service,
c pay e r i v ,-ard the
Furtrlerr-:��re, as .et out �n .� 1 of the tia orit, a;a,..
Ei ipl yv r e_,pressl•Y open,pd up the corripetition. '.I:1�,' F:Yi�hc-Isis) to
Ur,C 'c s:fle� `oritra�t staff. The term corllpwtltir n neccessarily inn plies;
the e:: .tence of a slr:�-!G set of rules Uial are fwrl ti' rind anlforrml v
applied to all participants.
5AThe Emplo y7er can not have it both ways by being able to select sorne
cor:trac,t staff and therel v defeat the seniority rights of civil ser-.*ants
'". , v:fl":ile at the sarne time retalninrg a rig,.ht to refuse to appoint other
' Contract =•Miff t?he) could demonstrate 'their s Derior qu&llfivations. I
' would lia'?r found that th— amplover, by 9s po5,'.irt� of tl notme had �
• �c<'.'?E'd its rights to rely? or. the lirnitation found in Article 3.1.
1
T o hold othery-;zae lead to the unlikely conclusion that on1v the
+ union could lnavEe grieved thie failure? o! the Empover to Pro.t,.
,ii-)col%! thM rrovi_lm.-, of Artl.c!e 4 .> tut not the a�,�&punts v-,ho
:+, r, .c,, eras, r: er •} a o. }'
dej...� pro • ns i .on u. d �. rt1��1N That tl- uni,:z-� could
u�
4 .1„r p f ''r )' r t T 1- •- . r r r RA
.�.:.�u. � (1 ..:F'' E.:3r�Ilt:7s±i' !� ���.�1• u1[e r'. �� 1J3f,i1_ of .•?rla
i -
' ` Ili t�rl yT e;rNrlt• I Tr.rf�uld have found treat, even if the Emnl: eyer's right in
�:.:.
Article 3.1 �t,re1-e Iint waived that trie grievors still had enforceable
` v rights under article 4.
Fi_ tiv , I ,l. not subs..rib to the doubt t xpr v_:�r d b y the r.na j oritT, 1 i
t°� r r r, subscribe�a e r n , a pcc,Y S � r� r f) - .
'-
par,-r- i of the award as to the applicability Of Article 3,14. �^.rticle 3 of
th- collective agreement is titled seasonal or part-tame
. Y '
employees- 1 �nrould lia�ie found e;ieri in the ab'senoc of th2 concession
of _ he Em plc)ver at the hearing that. the parties - to the collective
rw' r - Ci's o s t- Ie wT ,r iy r.0 to
w>. •�.�I 'el ri�'nt 1��„i r.�?I�rl��`.� the t�'r,E l .,L'a�i1l i�'il ..r �:Ja: � ten� i 1�J1 V y? .,
include all non •it �er ;art.. To hold oth .r � s . > Ild x- c l Ii',r to
such eniplo�.7ees all the other rights in Articles li:�ted in 'Article 3.1�
In clud. 11 lirticle
2,7 the Brie;lance procedure. 5uc1? a concluslnn is
corfipletelrr untenable.
I' lore fundamentally, I can,-not accept the conclusion on .page pane 3 of the
IslsYl�ft'it,',? ci��Tc"�Y{1 that Article tir�le ��,� f}r,e r1{yt �2SSist, till' grievors rn any
r T �. C p p
via Firtue of Articl}v 3.14 the ;:I"iezlilr s must lia�,T sorr! ri hts
under Article 2,15 exerciseable bV thern while then are still non--civil
serTrants. If the ma jorit'v were correct in their opinion that Article 2
onl?,r assisted- non-civil servants once they already gained entry to the .
class11 -v-d service than there would be no need t6 incuude Article 25 in
s' the list of Articles that avvl v to s?.s nal or p��7-t-t,irrie plTi z_e
{ ' Having concluded that Article 2 F• care be of assistance to the grievors it
remains to be determined what the nature of those rights are. article
F ? creates for those ernplojreeS covered by it the attribute of
s` continuous service or seniority . The final clause of Article _25.1 makes
clear that seniorit•,r includes tirlie that the elnplos*ee covered by the
'r collective agrF'?merit spends in that part of the �1s?lic Se'r'i ice that is
not the ci*ill service, r1IS last 5tat'ri"ierlt sets ou the p::act situation
of the Brie;Tors.
A—bitral jurisprudence holds that when a' collective afire=�rnent creates
s` .the attribute of senloritsr in respect of an employee that attribute
roust be capable of som tangible application. An 6: aminatio�i of the
n •3, ? " p14pal no possible application of
I-lY,rit c n ae ,refs lI1 ��rt•lcla .1 to .1 r s �-•
tliis attribute. 11I1r1ilal'l V a review of the Articles listed ire article 3.14
reS?eals no =crssil:le application of this attribute. Tree olilt� risible
ap licati n of s nior.t . must be in relation tc. rights, contai?ieC in are
frli 1 not pr .�I ; listed r e r e_; ess y sted in Article �7 and t,ie e.�prp^aa listing of
k. Article 25 in Article•3.14 has the effect of incorporating into article 3
the j rticle containing the right to apply seniority
In revie'.-,And, the rerrlaininY provisions of the collective agree n ent to
t. dNterrliirie £lie a Ca ion ofp+s niority rights treat must be possible
:li�. �'N
because of :article 225 ire�e must ignore the v'nntent of Articles 7�y
throuz h 56 because of the et pre -s provision or article 30 Iii-nitinp, the
application of the subsequent Articles to civil servants. Thus the`onl;?
Y possible applications lications of sivniority rights to non-civil servants are found
l in Article - Posting and Article 24 - Job Security.
To riold that non-ci,ril servants had rights under article 4 �,,Tnuld have
far le'Ss reprecussions to the distincti-Ons bets„7een civil uwr i arits and
non-civil ser%!zgnts than to conclude that Article 24 applied. t.o non-6: ?ill
} serl7ants. The choice of the latter Article would it ilL,17? that non-civil
servants had permanent ,job security ric;hts wMIt:- the 'Icholce of :article
�i would onl�r entitle tli= non-civil servarit the ri�,ht to be appointtad to
`, C le * c. os + r T”, ov e she Sr�T � at 1:�`Y�;t �'f �:a11,7 �i_.3Lified �_ii
:� �E .��. cl�i.. �.c�.�iLi�Ii. �.r . ._ire ''Yl . � .
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thl Ernpl(,viE�_r har,-i �!,-aived richt to r'-'vT on th- lirr.,Jtation found in
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I . -ol v -, v.7ill on"!v b,� 'able
intere�-,t. carbitration proceedinc. the tm 0 1 e to
the w,�7,airldinc_, of lenio�itv .mlls 'to hon-cr7il si�rv_ants if it �-ar.
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