GSB#2009-1110

UNION#2009-0154-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Green)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

Stephen Giles Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Suneel Bahal Ministry of Government Services Counsel

HEARING

September 15, 2009.

Decision

1This proceeding was conducted pursuant to the Mediation/Arbitration procedure set out in article 22.16 of the collective agreement.

2The grievor, Ms. Leslie Green, is currently a Client Services Representative in the Family Court of Justice in Windsor, Ontario. She grieves that she was not offered a temporary assignment as Acting Trial Co-ordinator in that same Court. A “Desk Drop” soliciting interest for the position was circulated in early 2009. It provided that the opportunity was “for a period of up to five and a half months subject to the return of the regular incumbent”. The grievor had previously held the position of Trial Co-ordinator, on a permanent basis, for a period of five (5) months commencing in 2007. The position here in issue was offered to another employee who was working as a Court Clerk in the Family Court of Justice.

3The temporary assignment for the Acting Trial Co-ordinator position did not have to be posted given that its duration was for a period of less than six (6) months. It is apparent from a review of the collective agreement, and related jurisprudence, that the Employer enjoys an unfettered discretion in making such assignments. The exercise of this discretion cannot be reviewed at arbitration in the absence of

bad faith or discrimination. After assessing the submissions of the parties’ representatives, I am satisfied that the decision here being contested was not made in bad faith or in a discriminatory fashion. Rather, I accept that it was made for a

valid operational reason, namely, the Employer’s desire to cross-train and cross-use its staff working in the Family Court of Justice. In this regard, I have not been persuaded that the Employer’s decision was improperly influenced by irrelevant considerations.

4For the above reasons, I find that the Employer did not contravene any provision of the collective agreement in awarding the temporary assignment as it did. The grievance is accordingly dismissed. The result in this case is consistent with Vairo, 1593/98 (Johnston) and Rebello, 2005/1165 (Carrier).