GSB# 2007-2339
Union# G-105-07-SOW
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Amalgamated Transit Union - Local 1587 (Barbita)
Union
- and -
The Crown in Right of Ontario (Greater Toronto Transit Authority - GO Transit)
Employer
BEFORE
Richard Brown
Vice-Chair
FOR THE UNION
Natasha De Menna Green & Chercover Barristers and Solicitors
FOR THE EMPLOYER
Megan MacRae Employee Relations Consultant Greater Toronto Transit Authority - GO Transit
HEARING
June 27, 2008.
Decision
Johanna Barbita filed this grievance because she was denied an interview for a temporary assignment to the position of agency officer. The union alleges she was not interviewed because of her disability. The employer made a preliminary motion to have the grievance dismissed, without a full hearing on its merits, because the facts alleged could not constitute a violation of the collective agreement.
I
The employer’s primary argument is that the provisions of the collective agreement relating to posting and filling of vacant positions do not apply to temporary assignments. Article 8.1 specifies how vacancies are to be posted and filled. According to article 10.2(1), temporary assignments extending beyond six months are to be posted and filled in accordance with article 8.1. The clear implication of article 10.2(1) is that article 8.1 does not apply to assignments of shorter duration. In the absence of any obligation to post the position in question, the employer contends it was under no obligation to interview Ms. Barbita for this position.
By way of an alternative argument, the employer contends the grievor would have no right to be interviewed even if article 8.1 did apply. This argument rests upon two parts of that article. The first is found in article 8.1(1):
The company reserves the sole and absolute right to carry out applicable interviewing or testing that is necessary in its opinion.
Article 8.1(10) contains the second:
Where there is more than one applicant from the bargaining unit who in the opinion of the Employer is qualified for the position, then the employee with the longest seniority … shall be offered the vacancy.
Noting the successful applicant is senior to the grievor, the employer contends it was not obliged to interview her, because a there was a senior qualified applicant.
The union relies upon article 2.2 of the collective agreement incorporating by reference the Human Rights Code. I also was referred to s. 5 of the Code stating “every person who is an employee has a right to equal treatment with respect to employment without discrimination because of … disability. The union argues the employer violated the grievor’s right to equal treatment under s. 5, by deciding not to interview her because of her disability, while interviewing other employees some of whom had less seniority than her.
II
The essence of the employer’s argument is that the grievance should be dismissed at this preliminary stage because the union does not allege a violation of the contractual provisions relating to job vacancies. The union’s response is that the grievance should be heard because it alleges a violation of the Human Rights Code. I am persuaded by the union’s argument. The union is entitled to have the grievance heard on its merits because the facts alleged—the denial of an interview to the grievor because of her disability coupled with the interviewing of junior employees—could constitute a breach of the Code.
I digress to note, if the Human Rights Code was breached, the violation would reside solely in the denial of an interview to the grievor, not in the decision to appoint a more senior employee. The union does not challenge that appointment. In other words, if a violation occurred, what the grievor lost was an interview, not a job. An interview for a job that was properly awarded to someone else would have little, if any, value. If the grievance is allowed on its merits, the remedy will reflect this valuation.
Dated at Toronto this 14th day of July 2008