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HomeMy WebLinkAbout1985-0894.Jackson.87-08-27IN THE MATTER OF AN ARBITRATION UNDER THE dROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (F. Jackson) - and - Griever THE CROWN IN RIGHT OF ONTARIO (Ministry of Correctional Services) Employer BEFORE : FOR THE GRIEVOR: J. Devlin Vice-Chairman I. Thomson Member G. Milley Member P. Chapman Counsel Gowling and Henderson Barristers and Solicitors -. FOR THE EMPLOYER: J. Hannah Senior Staff Relations Officer Ministry of Correctional Services HEARING: June 24, 1987 1 .~. ‘~ ‘. The grievance which was filed by Faye Jackson is dated August 6, 1985 and provides as follows” ,I grieve that I was not given the position for job posting #Cl-3034-85”. Ms. Jackson requests that she be awarded the position “effective the date the job was available”. The material facts giving rise to Ms. Jackson’s grievance were agreed upon between the parties and are as follows : II 1) 2) 3) 4) . . . MS Faye Jackson was appointed to the unclassified service for the period April 22, 1985 to October 30, 1985. MS Jackson applied for and was interviewed on June 27, 1985 for the position of secretary~3, Brockville Probation and Parole, competition CI-3034/85. A total of five people were interviewed in the competition. At the time of the competition MS Jackson was a public servant employed in the unclassified service. ‘. MS Jackson’s contract was not renewed and she ceased to be a public servant on October 30, 1985. I8 At the outset of the hearing, Counsel for the Employer raised a preliminary objection to the arbitrability of L Ms. Jackson’s grievance. It was the position of the Employer that Article 4 of the collective agreement which deals with the posting and filling of vacancies, does not apply to those in the unclassified service.and, therefore, the Board is without 2 jurisdiction to entertain .the merits of Ms. Jackson's grievance. In support'of this submission, Mr. Hannah referred to Haladay and The Ministry of Industry & Tourism, GSB 94/78 (Swan) and OPSELI (V. Ahluwalia & P. Vashist) and The-Crown in Right of Ontario (Ministry of Transportation & Communications), GSB 725/83 (Springate). It was contended that this latter decision involved the same issue and, therefore, ought to carry considerable weight with the Board. It was the position of MS. Chapman, on behalf of the Union, that the Employer dealt with Ms. Jackson’s grievance on its merits and, therefore, waived its right to object to arbitrability at this stage. In this regard, Ms. Chapman pointed out that the Unions first received notice of the Employer’s objection in a letter from Mr. Hannah dated May 20, 1987. Ms. Chapman further made reference to two decisions In which preliminary objections were denied where the employer failed to raise its'objection in a timely fashion and treated the grievance on its merits. These consisted of OPSEU (Frank Carauana) and The Crown in Right of Ontario (Ministry of Health), GSB 27/82 (Roberts) and OPSEU (S. Anderson) and The Crown in Right of Ontario (Ministry of Correctional Services), GSB 1483/84 (,Brentl. Al’ternatively, Ms. Chapman contended that members of the unclassified service have a right to grieve as provided in Article 27 and, therefore, Ms. Jackson may seek enforcement of ,the provisions of Article 4 of the collective agreement. 4.2 4.3 3 The jurisdiction of the Board is statutory and is derived from the Crown Employees Collective Bargaining Act. Section 19 of that Act provides that the Board is vested with jurisdiction to determine disputes involving the interpretation, application, . administration or alleged contravention of the collective agreement. Although Section 18(2) of the Act confers jurisdiction upon the Board to deal with certain matters in addition to any other rights of grievance under a collective agreement, none of the matters contained in this Section deal with a claim of the nature advanced by Ms. Jackson. We must, therefore, determine the rights afforded to Ms. Jackson by virtue of the collective agreement. Article 4 provides as follows: ARTICLE 4 - POSTING AND.FILLING OF VACANCIES OR NEW POSITIONS 4.1 When a vacancy 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 (~10) working days prior to the established closing date when advertised within’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. The notice.of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required, the hours-of-work schedule as set out in Article 7 (Hours .of,Work), and the area in which the positions exists. In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the’ Article 3 which is entitled 'UNCLASSIFIED EMPLOYEES" contains the following: "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. UNCLASSIFIED STAFF OTHER'THAN SEASONAL EMPLOYEES 3.2 Sections 3.3 to 3.15 apply only to unclassified staff other than seasonal employees. II '. . . Articles 3.3 to 3.15 to which reference is made in Article 3.2 deal with a variety of subjects including wages, holidays, vacation pay,~ bereavement leave and'health and safety. Article 13.15 also provides for additional Articles which apply to unclassified staff other than seasonal employees, including Article 27. No reference, however, is made to Article 4. 4 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 inte.rview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend.the interview,,provided that the time off does not unduly interfere with operating requirements. 4.5 Relocation expenses shall be paid in accordance with the provisions of the Employer's policy." . 5 In OPSEU (V. Ahluwalia & P. Vashist), and The Crown in Right of Ontario (Ministry of.,Transpor’tation & Communications, supra, referred to by Counsel for the Employer, the Board was also faced .with a claim.by two members of the unclassified service that they had been denied vacancies which had arisen in the classified service. Although the decision was rendered under a prior collective agreement, the language in all material respects remains unchanged and in that case, another panel of the Board sustained the Employer’s preliminary objection and found .that Article 4 did not apply to the grievors. In our view, a decision of another panel of this Board on the same issue must be considered highly persuasive. Absent manifest error, the decision ought to be followed and, as a result, we too conclude that Article 4 of the collective agreement does not apply to the Grievor, Faye Jackson.. Although Article 3.15 of the collective agreement provides that Article 27 dealing with the grievance procedure applies to unclassified staff, it is unnecessary for the purposes of this case to determine whether members of the unclassified service have an independent right to grieve in respect of matters other than those dealt with in Article 3. The grievance makes it clear that Ms. Jackson is claiming that the Employer violated the collective agreement by denying her the position of Secretary and she ins seeking an order from the Board that she be placed the job. Given our finding with regard to the application of 3 i n 6 Article 4 to the Grievor, the Board lacks .jurisdiction to entertain this claim. We are also of the view that the doctrine of waiver cannot assis't the Grievor in this case. That doctrine would preclude the Employer f;om raising a procedural defect or irregularity at this stage in circumstances where the Employer initially responded to the grievance on its merits. Here, it is clear that in two written replies tom the grievance, the first in August and the second in October of 1985, the Employer responded to Ms. Jackson's grievance on its merits. As pointed by Ms. Chapman, prior to May of 1987, both the Union and 'the Grievor assumed that the Employer intended to proceed on this basis.- Nevertheless and while it.is wholly unsatisfactory that it took the Employer more than two and a half years to advise the 'Union of its objection to arbitrability, that objection is a substantial one, going to the root of the Board's jurisdiction and, therefore, cannot be waived. Finally and although Ms. Chapman suggested that the Grievor had altered her position in some way on the basis of the Employer's initial response to her grievance, the necessary ~elements to support the application. of the doctrine of estoppel have not been established. In.these circumstances, the Employer is entitled to rely on the language of the collective agreement 7 and for the~reasons set out, the grievance Of Ms. Jackson is hereby dismissed. DATED AT TORONTO, this 27th day of August I 1987. . I Ii Thomson Member G. Milky Member