GSB# 2005-2043
UNION# 2003-0234-0126
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Cartwright)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Marilyn A. Nairn
Vice-Chair
FOR THE UNION
Stephen Giles Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Rena Khan Staff Relations Officer Ministry of Community Safety and Correctional Services
HEARING
October 6, 2005.
Decision
The parties have agreed to an expedited mediation-arbitration process to determine grievances at the Maplehurst Correctional Complex and Vanier Centre for Women. It is not necessary to reproduce the entire protocol here. Suffice it to say that the parties have agreed to attempt to resolve matters at mediation; failing which, they have agreed to utilize an expedited arbitration process. In preparation, each party provides the Vice-Chair with written submissions one week prior to the hearing. Those submissions include a statement of the facts, as well as the argument (supported by any authorities) on which each party intends to rely. At the hearing, oral evidence is not called, although the Vice-Chair may request further information or documentation. In addition, if it becomes apparent to either party, or to the Vice-Chair, that the issues involved in a particular case are of a complex nature, the case may be taken out of the expedited process and processed through ‘regular’ arbitration. Although individual grievors often wish to provide oral evidence at arbitration, the process adopted by the parties provides for a thorough canvassing of the facts prior to, and at the hearing, and leads to a fair and efficient adjudication process.
In this case, the grievance asserts that the employer is in violation of the collective agreement by denying the grievor, Robert Joseph Cartwright, the opportunity to compete for the position of Operational Manager 16 (“OM16”).
The employer raised an objection to the Board’s jurisdiction to hear this matter. The union argued that there must be a forum in which to have the matter determined. There is no dispute that the OM16 position is outside the bargaining unit. A grievance filed before the Public Service Grievance Board was dismissed on the basis that the grievor was a member of the OPSEU bargaining unit. He was in an acting OM16 position at the time his complaint arose. The availability of a forum in these circumstances is not an issue which I need determine. The union agrees that any jurisdiction which the GSB may have is limited to determining whether or not the employer acted in a manner that was discriminatory or in bad faith.
Assuming, and specifically without finding, that the Board has such jurisdiction, I am not satisfied that the employer has so acted. On February 8, 2003 the grievor submitted an application to three OM16 restricted postings. On February 19, 2005 he was advised that he was not eligible for the competition due to the identified restriction. On February 23, 2005 the employer re-posted the positions without the restriction. That subsequent competition closed on March 13, 2005. On March 24 and 31, 2005 the grievor submitted a request to the employer to confirm that his application was still on file for the revised competition. The employer had not revised the posting numbers lending some confusion to the process. However the grievor was aware prior to the closing date of the second competition that there could well be some question regarding the status of his application. In the normal course it would be incumbent on an applicant to actively satisfy any such question prior to the closing date in order to ensure that their application would be considered. The onus is not on the employer and therefore the employer cannot be found to have acted in a discriminatory fashion or in bad faith in these circumstances.
This grievance is therefore dismissed.
Dated at Toronto, Ontario this 20th day of October, 2005.