GSB#0058/97, 1361/98, 0081/99
UNION#97C197, 97C198, 98C520, 99C089
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Kuntz)
Grievor
-and-
The Crown in Right of Ontario
(Ministry of Municipal Affairs and Housing)
Employer
BEFORE Belinda Kirkwood Vice-Chair
FOR THE GRIEVOR Ed Holmes
Counsel
Ryder Wright Boyle & Doyle
Barristers & Solicitors
FOR THE EMPLOYER Hiroko Sawai
Counsel
Legal Services Branch
Management Board Secretariat
Jim Tober
Corporate Compensation Specialist
Compensation Policy, Bargaining Units
Management Board Secretariat
Sunil Kapur, (on first day)
Counsel
Legal Services Branch
Management Board Secretariat
HEARING DATES: December 17, 1998; March 8 and 29, 1999, September 27, 1999, October 5 and 25, 1999, November 1 and 2, 1999; February 17 and 28, 2000, March 9 and 28, 2000, May 9, 15 and 16, 2000, July 25 and 26, 2000, September 18 and 19, and 25, 2000, October 23, 2000; January 22, 2001, February 20, 2001, March 26, 2001.
DECISION
The grievor has been employed with the Ministry since December 1974. He was a Plans Examiner from 1979 to 1984, and then a Roofing Specialist from 1985 to 1992. He was surplused in 1992. He grieved and the issue was resolved by placing him in the position of Services Supervisor 2, Architectural Technologist. He unsuccessfully applied to three job competitions for the position of Building Code Advisor. As a result he launched the three grievances, which are the subject of this decision.
The grievor claims that he ought to have been given the position, as of approximately January 1997, the filling of the first vacancy. Notice was given to the successful candidates who are still employed with the Ministry but they chose not to appear. Notice was not given to the successful candidate of the first competition as he is no longer employed with the Ministry and would not be affected by this decision.
The Position
Dr. Arlani, the Manager of Code Development and Training Section of the Ministry of Municipal Affairs and Housing, Housing Development Branch, testified on behalf of the Employer.
Dr. Arlani developed the Job Position Specification for the Building Code Advisor, (“the Advisor”) which came into effect as of January 1, 1980. The purpose of the position is to provide “advice and interpretation on the Building Code Act and on all requirements or the Building Code that are not performance oriented. To assist in the development and maintenance of regulations not requiring engineering expertise.”
Dr. Arlani testified that the Advisor Position has three distinct functions, Ontario Building Code (“Code”) interpretations and advisory functions, training others on the Code, and assisting in the redrafting the Code.
The department which now has approximately 18-21 people, receives approximately 150 to 200 inquiries a day, which include inquiries from the public, from the internet site, from the Buildings Code Commission (“BCC”) and the Building Material Evaluation Commission (“BMEC”), municipal building officials, fire officials, engineers, builders, contractors and occasionally Members of Parliament. The Advisor receives approximately 15-20 inquiries a day on the interpretation and application of the Code. Although most of the requests for information and clarification from the public are dealt with immediately, it is government policy that the Advisor must provide analysis for both the BCC and BMEC and will advise each commission what is required from their inquiries within five days.
The regulatory function requires analysis of the