GSB# 2005-1165

UNION# 2005-0546-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Rebello)

Union

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Joseph D. Carrier Vice-Chair

FOR THE UNION

Serge Linarello Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Julie Legault-Hockley Labour Relations Consultant Ministry of Finance

HEARING

July 24, 2007

WRITTEN SUBMISSIONS

July 26, 2007.

Decision

This matter was presented by way of an Agreed Statement of Facts prepared jointly by representatives of the employer and the Union. The grievance as filed on behalf of Ms. Eremita Rebello alleges that she had "been unjustly denied access of the position of Retail Sales Tax (OAD11) in violation of the Collective Agreement including but not limited to section (8.6.1) and section (6)".

In April of 2005 the Employer had posted a request "for expressions of interest with respect to two temporary assignments of less than 6 months duration for the position of OAD11 in Retail Sales Tax. The Grievor had signified her interest in accordance with the Employer's request but was unsuccessful in her bid.

There was no allegation of bad faith or discrimination with respect to the manner in which the Employer filled the temporary assignments. The Collective Agreement in Articles 8.6.1 and 8.6.2 clearly exclude from the posting provisions of the Collective Agreement (Article 6) Temporary Assignments of Less than Six Months Duration.

It was the Grievor's position that she should have been granted one of the two temporary assignments based on her seniority and years of service relative to those employees who were chosen for the positions.

I have considered the facts in this case and the provisions of the Collective Agreement and I am satisfied that there is no basis upon which I could intervene or set aside the determination made by the Employer in the filling of the two temporary positions in question. The Collective Agreement is clear that the Employer enjoys an unfettered discretion in making temporary assignments of less than 6 months duration. While the Grievor may feel disconsolate having been overlooked in favour of more junior employees, there is no basis in the Collective Agreement pursuant to which her claim can be validated. Indeed, there may have been other valid business considerations to maintain the Grievor in her then current position rather than temporarily transferring her to one of these assignments. Be that as it may, as I have already stated, there is no basis within the Collective Agreement upon which the Employer's decision could be reviewed at arbitration. This is especially so in view of the fact that there are no allegations of bad faith or discrimination alleged.

In the circumstances the grievance concerning these temporary assignments must be dismissed.

Dated at Toronto this 24^th^ day of August, 2007.