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HomeMy WebLinkAbout1984-1444.Timleck.86-11-07IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between Before: For the Griever: For the Employer: Hearing OPSEU (J. Timleck) - and - The Crown in Right of Ontario (Ministry of Correctional Services) R.J. Delisle J. McManus G. Peckham Alick Ryder Counsel Gowling & Henderson Barristers & Solicitors Doug Milic Staff Relations Officer Ministry of Correctional Services May 15, 1986 Griever Employer Vice-Chairman Member Member The grievor complains about a job competition for the position of Client and Information System Document Processing Clerk in which she was an unsuccessful candidate. That position. was classified Clerk 3, General and the grievor was, at that time, classified as Clerk 2, general. An Opportunity Bulletin, (Exhibit 4), was posted for this position on August 27, 1984, with a closing date of September 11, 1984. On November 9, 1984, the grievor was advised that she was unsuccessful in the competition as the Selection Committee believed that other candidates possessed a more suitable combination of knowledge and skills. The grievor met with Merle Grey, Personnel Administrator, on November 21, 1984, to consider why she had been unsuccessful. Ms. Grey advised the grievor that "most of what I didn't know was because I needed more on the job training and this is what helped the people who got the positions". The grievor filed a grievance November 23, 1984. The essence of the grievor's complaint is that the competition was unfair in that the successful candidates had received on the job training which she had been denied. By her grievance she asks that she be assigned to the job with retroactive pay and benefits to November 5, 1984, the day on which the successful candidates were appointed to the job. In February, 1985, the grievor was reclassified to Clerk 3, General retroactive to November 1, 1984, and the grievor has therefore suffered no monetary damages even if her present claim proves successful. The grievor seeks, then, a declaration that the competition was unfair and the opportunity to take the job. -2- The grievor came to the Binistry of Correctional Services as a Filing Clerk 2 in Inmate Records. She was Shop Steward between 1981 and 1984. The three successful candidates were Mamome, Bradford and Rennick. Mamome and Bradford were' contract employees who began work with the Ministry in 1982. The work assigned to them was with respect to records of Probation and Parole. This work was performed in the same large office where the grievor worked in Inmate Records. Rennick joined Mamome and Bradford in working on the Probation and Parole Records in May, 1983, while on secondment from a probation office. In October of 1982 the grievor learned that the work on Probation and Parole Records was being done by contract employees. The.grievor testified that she did not grieve at that time as she was not aware that she had the right. She spoke with another shop steward about the situation and requested that it be brought up at an Employee Relations Committee Meeting. The matter was placed on an agenda for a meeting on September 20, 1983 (Exhibit 10). The grievor did not attend the meeting and was unable to advise us if any discussion was had or action taken. On July 31, 1984, the grievor applied, (Exhibit 111, for a temporary assignment to the position of Clerk 3, General, Probation and Parole, so that she might receive training in the job. R.A. Wills, Manager, Client Information Systems, replied on the same date, (Exhibit 12), that there was no need to replace anyone working in the Probation and Parole module and therefore the request would have to be denied. ‘i . -3- The grievor did work in the Probation and Parole module, with Mamome and Bradford, on a temporary assignment from March 15, 1985, to February 1, 1986. The grievor testified that the work then performed by her was the same work that Mamome and Bradford performed in 1982. She testified that had she had this experience at the time of the competition her performance would have been 100% better. Mamome testified that the job she was performing in 1984 was the same job she had been given to do in 1982. While some of the techniques for performing the job had changed, e.g. microfiche to computers, the job itself had basically not changed. Mamome testified that all three persons grew with the job. She allowed that knowing the job helped her in the competition. Mamome testified that it was clear in 1982 that a new department, and a new job was being created. Rennick testified that in her view "there was a job to be done and nobody to do it - there was no complement" before Namome, Bradford and Rennick took it on. The Ministry takes the position that a new job was created by the Ministry in June, 1984, when the Position Specification for C.1.S . Document Processing Clerk was written and classified as Clerk 3, General (Exhibit 13). It was then that the employer recognized that the duties there described needed to be performed on a long term basis. The Ministry was justified in using contract help until it had identified its long term needs. Counsel for the Ministry recognizes that an acting assignment does give an advantage but maintains there was nothing amiss with respect to the posting and competition in this case. -4- The grievor's position is that the incumbents had experience in Probation and Parole that was not shared by other people in the competition. There is fundamental unfairness since the grievor had to compete with others who had an advantage, given by the Ministry, that could not be overcome. Management picked the winners in 1982 and the competition was a formality. The posting and job competition process must be fair and the posting must therefore be soon after the creation of the vacancy. A vacancy occurred in 1982 when there was a job of work to be done and management assigned employees to do the job. The grievor was denied the experience of the others. Counsel for the grievor argues that the Ministry should have posted the job in 1982 and cannot avoid the obligation to post by delaying the creation of the paperwork which recognizes the job. There is no allegation of anything improper in the procedures followed by the Ministry after the job was posted in August, 1984. The complaint of unfairness is born out of an allegation of impropriety in 1982. The equity in the grievor's case is plain. She was disadvantaged in the competition by her lack of knowledge and experience in the job. Others, placed in the job by the Ministry in 1982, had an advantage that could not be overcome. Any unfairness by the Ministry, however, occurred at that time and the complaint of the grievor is accordingly out of time. She was aware in 1982 of the grounds for complaint, made some tentative steps toward a resolution -5- but did not follow through. Despite the equity it is now too late to complain. Accordingly the grievance is dismissed. DATED at Kingston, Ontario this 7th day of November, 1986. Delisle, Vice-Chairman “I dissent” (see attached) J. McManus, Member Board File #1444/84 GRIEVANCE SETTLEMENT BOARD IN THE MATTER OF AN ARBITRATION BETWEEN: OPSEU (J. Timleck) - and - Grievor THE CROWN IN THE RIGHT OF ONTARIO (Ministry of Correctional Services) (Employer) DISSENT I have read the majority award but with respect find that I must disagree for the following reasons. My first observation is that no objection to the timeliness of the grievance was made by management during the course of the grievance procedure or during the hearing itself. Secondly, the decision of the majority to dismiss the grievance on the ground that it was untimely mischaracterizes the grievance we were obliged to determine. The grievance does not contest the "acting appointments" in 1982 even though they now turn out to have been a breach of the collective agreement respecting "acting appointments". Neither the grievor nor the union had any basis, in 1982, for knowing whether or not the appointments were authorized by the collective agreement. Clearly the union cannot grieve every temporary or acting appointment on the supposition that some of them may turn out, as the ones here, to be a breach of the collective agreement. - 2 - Rather the grievance contests the validity of the competition in.19855and it is that question we were obliged to decide. The majority agrees that the competition was unfair and, accepting the decisions of the Board that an unfair competition is a breach of Article 4, it follows that the grievance ought to,succeed if it was timely. Admittedly the grievance was filed within the time limits necessary to challenge the validity of the competition. Just because the chain of events which resulted in the invalid competition can be traced to the 1982 appointments, does not mean that the invalid competition in 1985 had to be grieved in 1982. That is the logic of the majority decision. The truth of the matter is that the effects of the improper 1982 appointments were not spent in 1982. Rather they rose again in 1985 when the competition was held. Management cannot escape the consequences of an invalid competition in 1985 by virtue of an earlier breach occuring in 1982. In short I believe the majority is wrong when it translates the competition into an untimely grievance against the 1982 appointments and accordingly I would have upheld the grievance and ordered an new competition.