GSB# 1441/00, 0044/01, 0045/01, 0188/01, 0271/01
UNION# 01A057, 01A402, 01A403, 01A404, 01A405, 01A406, 01A407, 01A408, 01A409, 01A410, 01A411, 01A468, 01A469, 01A568, 01A59
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Persaud)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Correctional Services)
Employer
BEFORE
Owen V. Gray Vice-Chair
FOR THE UNION
John Brewin Ryder Wright Blair & Doyle Barristers and Solicitors
FOR THE EMPLOYER
Mary Pat Moore Counsel Management Board Secretariat
HEARING
December 3, 2002.
DECISION
1The parties settled several grievances, including a competition grievance, on terms recorded in Minutes of Settlement dated March 4, 2002.
2Paragraph 2 of those Minutes of Settlement provided that the grievor would be awarded a particular temporary position on certain terms, “subject to obtaining at least 70% on a test of her skill at using the computer to do a spreadsheet exercise on the Excel program similar to the third written question in the original competition.” Such a test was to be given within 10 days. The grievor was given a test within that time. She did not obtain 70% on it. The union requested a hearing to deal with its assertion that the test given was not “similar to the third written question in the original competition.” When that hearing convened, I was asked to deal with the issue in an expedited manner.
3Having heard the parties’ descriptions of and submissions about the test and the circumstances in which it had been administered, for reasons given orally at hearing I concluded that that test had not been “similar to the third written question in the original competition”, and that I could not determine from the results of that test whether the grievor would have achieved the required mark if the test had been “similar.” Having addressed the ways in which the test was not “similar,” I directed that a “similar” test now be administered. The outcome of this further test will determine what else, if anything, must be done to give effect to the original terms of the Minutes of Settlement and remedy its breach. That decision and those directions are hereby confirmed.
4After being advised of my decision, the parties came to agreement on the following with respect to this further test:
(1) As provided in paragraph 2(i) of the minutes of settlement, the test is to be “similar to the third written question in the original competition”, and the passing mark is to be 70%.
(2) The test will be provided to me in advance for approval as to whether it is “similar to the third written question in the original competition.” That determination is to be made without either counsel making submissions on the matter, and without revealing the contents of the proposed test to the union or anyone on its behalf or to either counsel.
(3) The test will be given no sooner than 5 working days and no less than 10 working days after I approve the test.
(4) A union representative will be entitled to observe the test on the following terms: While the grievor is performing the test, the representative will wait outside the office in which she does that. The representative may be present in that office before the grievor begins the exercise to observe the opening of the test file from the disk provided, will observe the time at the beginning and at the end of the test, and may be present in the office again when the grievor saves her results to the disk provided.
(5) I remain seised with any outstanding or subsequent issue concerning the implementation and interpretation of the Minutes of Settlement and the directions recited in this order.
Dated at Toronto this 5th day of December 2002.