HomeMy WebLinkAbout1984-0141.Thompson.84-09-27IN THE FATTER OF AN ARBITRATION
Under
OYEES COLLECTIVE GARGAINING ACT
Before
THE CROWN EKPL
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (K. Thompson)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Transportation and
Communications)
Employer
Before: R: J. Roberts Vice Chairman
S. Dunkley #ember
P. D. Camp !!ember
For the Grievor: B. Herlich
Grievance Officer
Grievance Section
Ontario Public Service Emp loyees Union
For the Employer: 0. W. Brown, Q.C.
Crown Law Office Civil I
Ministry of the Attorney General
Hearing Date: -July 23, 1984
DECISICN
2.
The issue that was ra i sed in the grievance in the present
arbitration was whether a job rotation scheme for Property
Agents in the Ministry was subject to the job posting
requirements of Article 4 of the collective agreement. For
ievance is dismissed. reasons which follow, the gr
The evidence disclosed that the grievor was a Property
Agent 2 in the Property Section of the Ministry in Kingston,
Ontario. The functions assigned to Property Agents in this
section related to the acquisition of land according to
the needs of the Ministry. They performed their duties .
in three distinct areas which were referred to as the
Appraisal Section; the Negotiations Section; and the Land
Management Section.
The primary functions of the Property Agents in the
Appraisal Section involved appraising the fair market value
of property required by the Ministry. The Property Agents
in the Negotiations Section would, on the basis of such
appraisals, negotiate for the purchase' of the property.
Once the property was acquired, the Property Agents in the
Land Management Section looked after various functions related
to the use to which the Ministry intended to put it, including
the removal of obstacles and the demolition of houses which
might be cbstructing a right-of-way for a proposed highway.
3.
It was a pal icy of management in the Property Section
to' rotate Property Agents through the above three areas.
This policy was administered in a loose manner, in the sense
that there was no fixed schedule for rotation. While it
was considered to be ideal to rotate a Property Agent from
one area into another every two to three years, it was not
uncommon for individual agents to spend considerably more
time in one section or another. According to testimony
from Mr. P. Kinnear, the head of the Property Section, the
work load of the Ministry in particular areas sometimes
made it impossible to rotate agents according to this ideal.
Many agents did not appear to object to being required
to spend considerably more than three years in one particular
area
who
Inst
however, others did. The latter, it seems, were those
were seeking various designations from the Appraisal
tute of Canada. Apparently, for certain designations,
such as the Certified Residential Appraisal Designation,
there was a requirement of direct appraisal experience.
This provided those Property Agents who were seeking such
a designation with considerable incentive to seek rotation
into the Appraisal Section.
The grievor was one of these persons. Since joining
the Property Section as an Agent in 1979, the grievor had
been rotated only once, from the Land Management area to
the Negotiations area. After spending two years in the
I
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.i
4.
latter area, he became anxious to rotate into Appraisal.
Without this experience, he would be frustrated in achieving
his short-term goal of receiving his C.R.A. Designation
by late 1984.
In early 1984, a less senior agent was rotated into
the Appraisal area. In order to make way, another agent
was rotated from Appraisal to the Negotiations area, from
which this less senior agent had come. Although the agent
who was rotated into the Appraisal Section had spent more time
in Negotiations than the grievor, the latter nevertheless
decided to grieve.
At the hearing, counsel for the Union made extensive
submissions upon the question whether the less senior agent
was rotated into a "vacancy," within the meaning of Article
4 of the collective agreement. In the course of their
submissions, counsel made extensive reference to arbitral
jurisprudence, both within and without the context of the
Grievance Settlement Board. None of these authorities,
however, dealt with a rotation scheme such as the one at
hand. They all appeared to deal with the filling of a
position which had been vacated, e.g., through retirement
or promotion, or created as ~a result of a reorganization
instituted by the employer.
_. .(
5.
The circumrt ,nces of the present case seem to differ
considerably from 'these. The rotation scheme of the Ministry
depended upon the simultaneous movement of two or more
employees. If this movement had been characterized, it
would resemble a swi thing of positions much more closely
than it would the fil!,:ig Of a vacancy.
There does not app ar to be any authority for the
proposition that ,the mer switching of positions within
a classification would 3,eate a "vacancy" which must be
posted in accordance with t e requirement of Article 4 of
the collective agreement. Mort wer , it would seem appropriate
to be hesitant to reach such '~ conclusion on the facts of
the present case. In a rotatcon involving, e.g., three
positions, Article 4 would requi:? three postingsand three
comlzetitions before the rotation r>uld be carried out. It
would seem that the costs involved in going through these
exercises might soon deter managerant fro; implementing
any rotation scheme. On the evidence, this would stand
as a loss to the Ministry and employe,?s alike, in that a
degree of flexibility could be lost tc the Ministry and
the opportunity to gain professional recognition would be
lost to many Agents.
The grievance is dismissed.
6.
DATED at London, Cntario this
1984.
27th day of September,
R. J. Roberts., Vice Chairman
S. Dunkley, FZember
P. D. Camp, Nember