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HomeMy WebLinkAbout1985-0424.Cory et al.86-08-140424185, 0425185, 0427/85 0428/85, 0459/85, 0460/85 0477185 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befae THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (D. Gory, M. Klaassen, D. Brooks R. Ashenhurst and J. Martin) and Crievors The Crown in Right of Ontario (Ministryof Health) Employer Before: R. J. Delisle vice-chairman I. Freedman lMem!ier C. Peckham Member For the Grievor: A. Millard coumel Barrister & Solicitor For the Emplopr: L. Horton Staff Relations Officer Human Resouces Secretariat Management Board of Cabinet Hearing May 26, 1986 DECISION At the time of the grievance, May 1, 1985, the grievors were all employed in the Ministry of Health, Whitby Psychiatric Hospital, Adolescent Unit. The grievor Ashenhurst was a Child Care Worker 3. The grievors Klassen, Brooks, Martin and Gory were al~l Child Care Workers 2. The Adolescent Unit is divided into the Out-Patient Department and the In-Patient Department. In the former, staff work in the surrounding community and, in the latter, staff work in one or more cottages within the Hospital. The two positions affected by this grievance are allocated to the same classification, Child Care Workers 3. The duties of the two positions are not identical, and have different position titles and position specifications, The CCW3 in the Out-Patient Department is a Community Child Care Worker and the CCW3 in the In-Patient Department is a Supervisor, Child Care In- Patients. The position in the Out-Patient Department had been classified CCW2 until November, 1983 when it was reclassified CCW3. When the CCW standards were written' there were no Community CCWs. The CCW2 standard referred to a working level CCW reporting to a supervisor while the CCW3 standard referred to a supervisor. While the Cut-Patient position had no supervisory role the compensable factors of the CCW3 level were there to be found: independence, superior contacts, and necessary maturity and experience. On November 7, 1983, a Minute, Exhibit 1, resulting from a joint staff meeting, was issued by Robert Benner, Co-ordinator of Adolescent Cut-Patient Department. That 2 Minute states that the positions of Supervisor, Child Care In- Patients and Community Child Care Worker “are not interchangeable. The position, when a vacancy arises is applied for and awarded based on skills, deportment, general personality, and general merit." Dr. Lazor, Director, Adolescent Unit, noted that the meeting and consequent Minute were to allay fears of employees following the reclassification. ccw2s, In-Patient, were concerned that with the higher classification they would not be able to compete for the Out-Patient position. CCW3s, In- Patient, were concerned that management would begin an automatic rotation between the two positions and two of the'three employees in that position were nor interested in transferriig-,but. ccw3s, Cut-Patient were pleased with the promotion but would not like to ' be subject to a unilateral transfer in. Management also had a concern that different skills and qualifications were needed for the two jobs. There have been retirements and resignations in the Out-patient Department and postings of vacancies as a result. In the spring of 1984 there were allegations of unprofessional conduct directed at a Community Child Care Worker, who for purposes of this award will be called Mr. Smith, which allegations were of a sexual nature. These allegations were investigated by management and no grounds were found to support the allegation. In the following year Dr. Lazor was advised by Benner that there were difficulties in the Cut-Patient Department. Community Child Care Workers work in pairs. It is necessary to their task particularly when they engages in group I : 3 therapy. As one becomes involved the other can observe the dynamics of the group. There was tension and distrust between Smith and his co-worker who had difficulty accepting that he was innocent of the earlier allegation. Dr. tazor tried matching Smith with other Community Child Care Workers but the others refused. Dr. Lazor consulted with her supervisor, the Psychiatrist-in-Chief and countless meetings were held with staff to resolve the issue. It appeared impossible to resolve, the matter within the Out-Patient Department. Smith could not work in the Adult Unit of the hospital because the necessary qualifications and skills were Lacking. It seemed wrong to transfer him to the other Adolescent Unit in London since he had done nothing wrong. Likewise, a demotion to CC%?; In-Patient, was seen as inappropriate. Some six months before the difficulty was identified Dr. Lazor had been approached by one Gomez, CCN3, In-Patient, who asked for a transfer to the Out-Patient Department so that he might further develop his skills. At that time Dr. Lazor advised him the positions were not interchangeable and that he would have to wait for a vacancy to occur and a posting. Dr. Lator now approached Gomez to see if he was still interested in going out. Dr. Lazor looked at the qualifications and skills of Gomez and Smith and identified them as matchable as each had previous experience in the other's task. After consulting Sjonger, Co-Ordinator of Residential Sepices for Adolescents, and Benner, and the Director of Personnel, Snider, it was decided to switch Gomez and Smith and the staff 5~ere I 4 advised of the change by memo dated April 30, 1985. The instant grievance was filed the next day. The union maintains that management has violated Article 4 of the Collective Agreement, which provides: ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW POSITIONS 4.1 4.3 4.4 c When a vacant for a barqaininq unit oosition or a new classified position is created in the baroainina unit, it shall be advertised for at least ten (lOI workinq davs prior to the established closina date when advertised within a ministrv. or it shall be advertised for at least fifteen (15) workina davs prior to the established closino date when advertised service-wide. All aoolications will be acknowledqed. Where oracticable, notice of vacancies shall be oosted on bulletin boards. The notice of vacancy shalt state, vhere applicable the nature and title of position, salary, qualiEications required, the hours-of-work schedule as set out in Article 7 (Hours of Work), and the area in which the position exists. In filling a vacancv, the Emulover shall crive primarv consideration to oualifications and abilitv to perform the reouired duties. Where qualifications and abilitv are relativelv ecNalc 1 en th of shall be a consideration. An aoolicant who is invited to attend an interview within the civil service shall be cranted time Off with no loss of way and with . no loss of CredltS to - _r.c at+endthe interview, orovided that the timl does not undulv interfere with oueratinu. requirements. The union argues that when the decision was made to switch the two persons two vacancies were created, one inside and one outside, and each should have been posted. While grievances were filed with respect to the lack of posting for both jobs, at the hearing the union said it was maintaining only the. grievances regarding the job in the Out-Patients Department. The relief 5 sought is a declaration that the shift was'improper and an order that a competition be held for the position of Community Child Care Worker, 3. The short response from management is that a vacancy never occurred, in either position, and there was therefore no need to post nor to conduct a competition. If, according to the jurisprudence, a vacancy occurs when there's a job of work to be done which the employer decides to fill then, management argues, here there was no job of work to be done that wasn't being done. No one resigned, no one retired. One employee was experiencing difficulty in performing his job. There was never any change in the complement of the Adolescent Unit. The single question for the Board to decide then is whether a vacancy occurred when the switch of personnel took place. A number of previous decisions of this Board were referred to in argument and it is now necessary to consider them. In a prior decision of this Board, McGuire, 207/78, one Damphouse, Sheriff's Officer 1, in Toronto, reguested a transfer to Windsor since she would be ret&red to move there following her forthcoming marriage. A position came open in Windsor, Court Reporter 1, on the promotion of its incumbent. Damphouse was demotionally assigned to that position for which there was no posting. McGuire, Counter Clerk in Windsor, grieved that mangement violated Article 4 by filling a job without first posting it. The grievance was upheld on the basis that once t?,e decision to fill the Windsor job was made the Employer determined 6 the existence of a vacancy andthe requirements of Article 4 were applicable. The Board there noted that while Damphouse had compassionate grounds for seeking a transfer other employees, perhaps better qualified, might have had more compelling compassionate grounds. In any event, the Board noted, nothing prevented the parties, both Union and Employer, from agreeing to waive the posting clause in appropriate circumstances. The Ministry in McGuire argued that Article 4 related only to promotional opportunities and did not relate to either lateral transfers or demotions. In that case Professor Swan wrote, and we agree: . . . there is nothing in the language used to justify any limitation of the sort proposed by the Employer so as to restrict the provision to cases where an employee would be entitled to a promotion. The clause speaks of the occurrence of a vacancy and the filling of that vacancy. A number of arbitration decisions have indicated that, while a job posting clause may be limited to promotional opportunities by proper language to that effect, clear wording would be required to produce such a result. That award dealt with a demotional transfer but its reasoning suggests, and we agree, that lateral transfers as well should be posted if there is a vacancy. In McGuire there was a vacancy caused by the promotion of the incumbent and the decision by management to assign someone to the position. McGuire is authority that Article 4 applies to lateral and demotional transfers to a vacancy but it contributes nothing of aid to our question of whether there was ever a vacancy in our fact situation. In Manson, 449/81, one Whaley, Clerk 4 General in the . 7 Sheriff's office, vacated the position February, 1981, and the position was not filled. On June 10, 1981, a new position was created, Resource and Supply Officer in Sheriff's Office, with a classification of Clerk 5, General. Management transferred a Clerk 5, General, one Campbell, to fill this new position. On June 24, 1981, Hanson, Clerk 2, Supply in the Sheriff's Office, grieved that he wasn't given an opportunity to apply for that position. In upholding the grievance this Board held a new position had been created, a vacancy occurred, and following McGuire, management could not just laterally transfer Campbell but rather the vacancy needed to ,be posted and a competition held. Again this decision is of no assistance to' our determination of whether a vacancy occurred in our fact situation. In Rhodes, 364/82, the grievor, a Clerk 3, had advised management of her wish to transfer to another location. Unfortunately, when a vacancy occurred at that other location, management, without notifying her, ran a competition and selected another candidate. The grievor claimed she was improperly denied her right to compete and the Board agreed. In passing the Board commented: The Ministry could not laterally transfer the grievor. This Board made that clear in Manson, 449/81 and McGuire, 207/78. In these cases, this Board ruled that Article 4 governs the filling of vacancies and lateral transfers cannot be made as an exercise of managerial discretion. Again this award does not speak to our problem. 16/83, the grievor was transferred In Klonowski, 8 involuntarily from Maplehurst to Metro West Detention Centre. The union argued that the transfer was in violation of the collective agreement since Article 4 had not been followed. Management argued that Article 4 did not apply since there was no vacancy at Metro West because that centre was overstaffed. The Board upheld the grievance, and Vice-Chairman Teplitsky wrote: In my opinion, once the employer decided to fill a position at Metro West a vacancy existed for purposes of Article 4.1 Notional staffing levels are not relevant. The employer cannot be compelled to fill a position. men,, however, it decides to do so, a vacancy exists which must then be posted. This award does not deal with our problem. In our fact SitUatiOn, in the Adolescent Unit there was no change in complement nor any change in jobs being performed. The recent decision of this Board in Jovner, 0138/85, which quotes with approval from Klonowski and Rhodes, is not helpful to our determination. In Jovner the Ministry had unilaterally transferred the grievor to another position when she returned from an illness covered by L.T.I.P. though the position she occupied prior to the illness remained vacant. Again we are not assisted in determining when a vacancy occurs for the purpsoe of Article 4. In Thompson 141/84, the grievor was a Property Agent 2 in the Property Section of the IYinistry of the Attorney General. Property Agents performed their duties in three distinct areas: Appraisal Section, Negotiations Section, and Land Management Section. It was a policy of management to rotate Property Agents through the three areas. There was no fixed schedule for . 9 rotation. The grievor had been rotated only once, from Land Management to Negotiations, and was anxious to rotate into the third area to assist him in achieving a Certified Residential Appraisal Designation from the Appraisal Institute of Canada. When a less senior agent was rotated into the Appraisal Section the grievor filed a grievance. The Union complained that Article 4 of the Collective Agreement ha'd been violated. The grievance was dismissed and Vice-Chairman Roberts wrote: The rotation scheme of the Ministry depended upon the simultaneous movement of two or more employees. If this movement had been characterised, it would resemble a switching of positions much more closely than it would the filling of a vacancy. There does not appear to be any authority for the proposition that the mere switching of positions within, a ,classification would create a 'vacancy' which must be posted in accordance with the requirement of Article 4 of the collective agreement. Moreover, it would seem appropriate to be hesitant to reach such a conclusion on the facts of the present case. In a rotation involving, e.g., three positions, Article 4 would require three postings and three competitions before the rotation could be carried out. It would seem that the costs involved in going through these exercises might soon deter management from implementing any rotation scheme. On the evidence, this would stand as a loss to the Ministry and employees alike, in that a degree of flexibility could be lost to the Ninistry and the opportunity to gain professional recognition would be lost to many Agents. This award is dealing with a situation much closer to our situation and is instructive. To insist on a posting and competition in our case, when dealing with a switch of employees within the same classification, would be to lose flexibility in the Ministry's task of getting the job done and also the opportunity in the Child Care Workers to develop their skills by exposure to different jobs. 10 In this case a difficult problem was presented. Through. no fault of his own Smith was experiencing difficulties carrying out his duties. Gomez wanted a transfer to the Out- Patient Department. Smith and Gomez had the qualifications and experience to perform each other's duties. Each was agreeable to a switch in jobs between h:'s respective positions. There is nothing in the evidence to suggest, and indeed everything contra indicates, that Gomez and Smith would have agreed to switch had they been advised that each would have to compete for the job to which they were going. Vacancy must be interpreted within its context in Article 4. Vacancy is not to abide some metaphysical notion that in order for :.James and John 'to switch jobs there had to be a moment in time when each left their job and so a vacancy occurred. Vacancy should be defined in terms of the rights sought to be protected by the parties by the insertion of Article 4 into the agreement. Article 4 is designed to protect the rights of an employee to compete for an open job. Have the grievors here been prejudiced? Bave they been deprived of any right to compete? If Smith and Gomez had to compete to switch there would have been no switch and the grievors would have had nothing for which to compete. In the switch they have been denied nothing that they would otherwise have been able to claim. Viewed in that context no vacancy occurred, no posting was . . 11 required, no breach of the collective agreement occurred, and the grievance is accordingly dismissed. Dated this 14th day of August 1986. -------- Ronaldw Delisle , Vice-Chairman @- I. Freedman, Hember -42 // Z&L- / G. Peckham, Hember