GSB# 2005-3002

UNION# 2005-0722-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McDonald)

Union

• and -

The Crown in Right of Ontario (Ministry of the Environment)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Jim Gilbert Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Jennifer Richards Counsel Ministry of Government and Consumer Services

HEARING

April 23, 2008.

Decision

The grievor, Cheryl McDonald filed a grievance in 2005 alleging she had been improperly denied an interview for a posted position. That grievance was settled by way of Minutes of Settlement that included an agreement that she would be interviewed for an anticipated vacancy in June of 2007. This award deals with her allegation that there has been a breach of that settlement. The parties provided me with the following statement of undisputed facts:

1. The grievor filed a grievance dated October 3, 2005 in which she alleged she was denied an interview for an Environmental Officer 5 (‘EO5’) position with the Program Services Section of the Ministry of the Environment.

2. The Parties entered into a negotiated settlement to resolve the above mentioned grievance on April 2, 2007. The Grievor signed the settlement. Mr. Jim Gilbert signed the settlement on behalf of the Union and Ms. Nathalie Osipenko signed on behalf of the Ministry.

3. As part of the settlement dated April 2, 2007, the Employer was to post an upcoming EO5 position (due to a maternity leave expected to commence in June 2007). The area of search was to be limited to the OPS. The Grievor was to be granted an interview for the position.

4. The job advertisement was posted on August 10, 2007 and closed on August 31, 2007.

5. The current incumbent’s last day in the office was July 30, 2007and her maternity leave began on August 27, 2007.

6. The area of search for the competition was restricted to the OPS. The position also provided for a flexible work location wherein the incumbent could reside in any Northern Region Office or other regional office.

7. The interviews for the EO5 competition were conducted on September 28, 2007. Pursuant to the settlement, the Grievor was granted an interview for the competition.

8. The established threshold for the competition was 70%. The Grievor scored 50% (52 out of 103 marks) and therefore was not deemed qualified for the position.

9. The interviews were evaluated and the candidates’ reference checks were completed by October 12, 2007.

10. The grievor was advised of the results of the competition on November 7, 2007.

11. The Grievor took resume writing training in Toronto at the Center for Leadership and Learning on October 15, 2007.

Jim Gilbert, for the Union, took the position that there has been a fundamental breach of the settlement in that both parties made promises that the Ministry has failed to keep. The grievor agreed to withdraw her grievance. The Ministry agreed that the area of search would be restricted to the public service. That was an important issue to the grievor since it narrowed the field of candidates thereby increasing her chances of success. The job has traditionally been stationed in the Thunder Bay office and there was no indication throughout the mediation that the Ministry intended to change that location of the job. Instead the Ministry posted the position location as flexible and applicable to any Northern or Regional Office including Thunder Bay, Kenora, Sault Ste Marie, North Bay, Sudbury, Timmins, Hamilton, London, Toronto or Kingston. A posting for a temporary position had never been done in such a manner and the Union could not have anticipated such a departure from the normal practice. The Ministry, on the other hand, was aware of its decision to open up the competition and said nothing during the negotiation of the Minutes of Settlement. It had an obligation to do so since that fact would have had a significant impact on the outcome of the competition.

The Union also alleged bad faith in the delay in finally posting the position. When the Minutes of Settlement were signed, the parties believed that the vacancy would commence in June of 2007. The posting was dated August 10, 2007. The Union made several inquiries about the delay and was advised by Ms. Mohamed, counsel for the Ministry, that the Ministry was waiting for clearance to post. Mr. Gilbert advised Ms. Mohamed that the Union had formally been advised that clearance was no longer, necessary for temporary assignments. Nevertheless, the position was not posted until August 10, almost three months later than the date expressed in the Minutes of Settlement, effectively reducing the length of time the grievor or any other incumbent would occupy the temporary position.

Finally, the Union submitted that the Ministry entered into a settlement that allowed the grievor an interview for a job competition she could not win, another indication of bad faith. The Employer has known her for 25 years and was aware at the time of the negotiated settlement that she would not qualify for the position. They should have made that clear during the negotiations so that she would be aware of the advantages or disadvantages of entering into a settlement. It took