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HomeMy WebLinkAbout1984-1397.Solomon.86-07-07For the Griever: I For the Employer: Hearing IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Vedanthi Solomon) - and - Griever The Crown in Right of Ontario (The Ministry of Health) Employer P.M. Draper Vice-Chairman I.J. Thomson Member G.A. Peckham Member Sandra Laycock Grievance Officer Ontario Public Service Employees Union John Zarudny Counsel Crown Law Office - Civil Ministry of Attorney General June 3, 1986 DECISION The Griever, yedanthi Solomon, grieves that in Competition HL-47-48-84 held in October, 1984, he was unfairly denied promotion to the position of Research Clerk, classified Clerk 4 General. The successful applicant was Ms. Carol MacIsaac, who attended the hearing but chose not to participate. The relevant provision of the Collective Agreement is Article 4.3 which reads: 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. The Griever was the only witness called by the Union and his testimony and the documentary evidence introduced through him re,lated to his qualifications and ability to fill the posted position, and to his seniority. The only testimony touching on the selection process, which was brought out in cross-examination, concerned the Griever’s answers to some of the questions put to him by the Selection Committee. Counsel to the Employer elected hot to call evidence and made a motion for non-suit, submitting that since there was no evidence as to the qualifications and ability of Ms. MacIsaac, but only evidence as to the qualifications and ability of the Griever, the Union had failed to adduce any evidence as to the relative qualifications and ability of the two, which was the issue before the Board. COU”Sel sited Tofano 478182 in which a similar situation was before the Board. . . . . 2 It is axiomatic that the party having the burden of proof in a proceeding before the Board must tender evidence of facts supporting the claim made - in this instance that the Griever’s qualifications and ability were relatively equal to those of Ms. Naclsaac. While it may be that the evidence adduced by the Union establishes t.hat the griever had the qualifications and ability required by the posted position, it does not constitute a prima facie case that his qualifications and ability were relatively equal to those of Ms. MacIsaac. For present purposes the responsibility of the Selection Committee may be described as being to determine whether or not the qualifications and ability of the two applicants concerned here were relatively equal. It is the obrigation of the Union to bring evidence tending to show that the determination made by the Selection Committee waswrong and that the quelifications and ability of the Griever were, in fact, relatively equal co those of Ms. Hacisaac. This ic has nor done. The motion for non-suit is granted. The grievance is dismissed. DATED at Consecon, this 7th day of July, 1986. P. M. Draper, Vice-Chairman - G. A. Peckham, Member - /j