GSB #2007-1792

UNION# 2007-0310-0032

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Strain)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

Michael Fenrick Counsel Paliare Roland Rosenberg Rothstein LLP

FOR THE EMPLOYER

Lisa Amin Counsel Ministry of Government Services

HEARING

February 1 & 22, 2010.

Decision

The Proceedings

1In this matter, OPSEU grieves that, contrary to the collective agreement, David Strain(the “grievor”) was denied the opportunity to compete for a temporary position in the Barrie office. The position had been posted because the incumbent had taken a temporary secondment opportunity. Prior to the expiry of the posting period, the posting was taken down because the incumbent entered into a job trade with an employee in the Newmarket Office, pursuant to A.10.3. Article 10.3 is as follows:

10.3 JOB TRADING

10.3.1 The following terms and conditions apply in respect of job trading as indicated in 10.3.2 to 10.3.13.

10.3.2 Classified employees who hold full-time or regular part-time positions are eligible to trade jobs, except for those employees who are on notice of lay-off pursuant to Article 20A or 20B (Employment Stability) of the Central Collective Agreement.

10.3.3 An employee can only trade jobs with an employee in the same category (i.e., a full-time employee can only trade jobs with another full-time employee; a regular part-time employee can only trade jobs with another regular part-time employee).

10.3.4 An employee who wishes to trade jobs with another employee must register with his or her ministry's human resources branch and complete the required documentation, which includes the employee portfolio. The employee must also indicate the specific location or locations to which he or she is willing to relocate.

10.3.5 An employee may only trade jobs with another employee who holds a position

• in the same classification; and

• in the same ministry; and

provided he or she is qualified to perform the normal requirements of the position without training.

10.3.6 Notwithstanding seniority, an employee will be considered for job trading prior to other employees registered for job trading if his or her spouse is also employed in the Ontario Public Service and has relocated to continue such employment at a different headquarters location.

10.3.7 If an employee has registered for job trading and he or she has also offered to be declared surplus pursuant to Article 20A.7 or Article 20B.7 (Voluntary Exit Option) of the Central Collective Agreement, his or her rights under that article will be exercised before any rights under this job trading agreement.

10.3.8 Relocation expenses incurred by employees who trade jobs will not be reimbursed by the Employer.

10.3.9 In the event more than one (1) employee meets the criteria to trade jobs with another employee, the Employer will choose the best qualified employee for the job to be traded. Where the qualifications and skills of two (2) or more employees are relatively equal, seniority will be the deciding factor, subject to Article 10.3.5 above.

10.3.10 Employees cannot trade jobs unless both of their managers approve of the trade.

10.3.11 Job trading is voluntary. Provided an employee has not been matched with another employee's job, he or she may withdraw at any time.

10.3.12 A job trade is not final until all four (4) parties to the trade have confirmed their agreement, in writing, i.e., the trading employees and their managers.

10.3.13 Should the employment situation or relocation decision of either employee change after sign-off, the job trade agreement remains binding. For example, if an employee receives surplus notice after a job trade is completed, then he or she will be subject to the appropriate procedures for redeployment.

The Facts

2There is no real disagreement on the facts. In February 2007 the grievor was employed as an Income Support Specialist (ISS) by the Ministry of Community and Social Services in the Barrie Office of the Ontario Disability Support Program (ODSP). As a result of reorganization, his position was relocated to Newmarket. He elected to relocate rather than be declared surplus. As the grievor resides in Orillia, his commuting time increased significantly. On May 24, 2007, a posting went up for a twelve-month temporary ISS position in the Barrie office. The closing date was June 7, 2007. The grievor applied for the position by letter dated May 31, 2007, which was stamped as received that day by the Ministry’s Human Resources Department for the Central East Region. That same day, at 4:35 pm, an email was sent out to all staff that the job-competition had been cancelled.

3Lianne Raymond was the manager of the Barrie ODSP office at that time. She testified that the job competition was posted because the incumbent was going on a temporary assignment in Peterborough. She cancelled the job competition when she learned from Human Resources that the incumbent and an employee in the Newmarket ODSP office were going to trade jobs. She discussed the collective agreement obligations with Human Resources and made the decision to cancel the posting because of the job trade. At the time she cancelled the job competition she had no knowledge of who, if anyone, had applied for the position.

4The manager of the ODSP Office in Newmarket at the time, Diane Young, also testified. She said that she learned from Ms. Raymond that two individuals were interested in a job trade between the offices. It was her evidence that the only basis upon which a job trade would be denied is if one or the other of the interested employees is not fully trained. There was no basis on which to deny this trade.

5A job trade is effected by the execution of a “Job Trading Agreement”. In this case, the two employees signed the agreement on June 1, 2007. Ms. Raymond signed June 4, 2007 and Ms. Young signed June 7, 2007.

6The grievor testified regarding the serious personal impact of being relocated to Newmarket and the desirability of the twelve-month opportunity to return to the Barrie Office.

7He learned from the May 31, 2007 email that the job competition was cancelled. He learned the next day that it was cancelled due to the job trade. Accordingly, he filed the instant grievance.

8Since this incident, the grievor has requested a lateral transfer and registered for the Job Trading Program. He testified that he knew of the Job Trade Program prior to the job competition being posted. He did not know the details and did not look into it because the Region had only ever posted jobs in the past. He did work in the Barrie office from June 2008 to June 2009 as the result of a different job competition.

The Submissions of the Parties

9The Union characterized the issue before the Board as whether it was contrary to the collective agreement to cancel the job competition by approving a job trade after having received applications for the job competition.

10The Union submitted that management has the discretion as to when it posts a job competition, but once it is posted, there is no provision that gives it the unilateral right to remove the posting. To permit the Employer to fill a posted vacancy by other than a consideration of the qualifications and ability of candidates in effect reads the ability clause out of article 6. For example, article 6.6.1 permits direct appointments only with Union approval because direct appointments are contrary to the overall purpose of article 6. Job trades are not a matter just between employees; the Employer must approve them. The approval in this case was unreasonable and unfair.

11The Union submitted that absent a right in the collective agreement to cancel a job competition, the Employer may only do so when the posting was the result of an innocent error or there are sound and practical reasons, that arose after the posting to do so. The Union relied on the following authorities: OPSEU (Leung et. Al.) v. Ontario (Ministry of Finance) GSB No. 0319 (Abramsky); Foothills Provincial General Hospital and A.U.P.E. (Bernal) 1998 CanLII 30058 (AB GAA), 1998, 76 L.A.C. (4^th) 371 (Moreau); Regional Municipality of Niagara and C.U.P.E. (1982), 1982 CanLII 5010 (ON LA), 8 L.A.C. (3d) 171 (Weatherhill); Chilliwack General Hospital and B.C.N.U. (1994), 47 L.A.C. (4^th) (McPhillips).

12The Employer submitted that it may cancel a posted job competition if it has sound and practical reasons to do so, which is the situation in this case. The job trade was an employee-driven, unforeseen development, which is employee driven. The effect of the job trade was to move the vacancy to Newmarket. The job trade was not used to fill the vacancy contrary to article 6. The vacancy moved to Newmarket, so the competition in Barrie was cancelled. The vacancy ceased to exist, which was the sound and practical reason to cancel the competition. There was no reason to deny the job trade. The approval was in keeping with the collective agreement and was done in good faith. Not to have approved the job trade would have been contrary to the collective agreement and an exercise in bad faith. The grievor was not registered in the Job Trading Program at the material time, so he was not considered.

13In reply, the Union submitted that work remained in Barrie. The Union does not allege that the Employer was acting in bad faith. Rather, having posted the vacancy, it was not open to the Employer to deprive applicants of the opportunity to compete for it.

Reasons for Decision

14Article 6.3 and article 6.6.1 were referred to by the Union:

6.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor.

6.6.1 With the agreement of the Union, the employee and the Employer, an employee may be assigned to a vacancy where:

(a) the vacant position is identical to the position occupied by the employee, and

(b) the vacant position is in the same ministry as the position occupied by the employee, and the provisions of Articles 6.1.1, 6.2, 6.3, 6.4 and 6.5 shall not apply.

15In Leung, supra, relied on by both parties, the Board reviewed the jurisprudence relating to the cancellation of postings and summarized its effect at page 23 as follows:

The jurisprudence, both within the GSB and in the private sector, hold that once a position is posted, the employer may cancel it but only in limited circumstances. In the absence of collective agreement language expressly permitting cancellation, a competition may be cancelled when there are "sound and practical" reasons to do so. Based on the case law cited by the parties, this generally means that a genuine mistake occurred so that there is, in fact, no vacancy; or unforeseen developments beyond the employer's control occur after the posting, resulting in a change in circumstances such that no true vacancy exists. In general, there is no obligation to continue when the employer. acting in good faith and with bona fide reasons, has had to revise its position.

16The question in this matter is whether the job trade request was a “sound and practical” reason to cancel the job competition. The Union submitted that a job trade requires the Employer’s approval and the decision must be exercised fairly and reasonably. To accomplish that requires that the impact on the extant job posting should have been considered.

17In my view, nothing in the language of article 10.3 subordinates the job trade process to the posting process. The rights advanced under article 10.3 are those of the two employees who effect the trade. To subordinate the job trade to the posting process would deny the incumbent of the Barrie position the right to relocate to Newmarket and the Newmarket job trader to relocate to Barrie. The grievor was not registered in the Job Trade Program even though he had prior knowledge of its existence. The Employer had no operational interest in whether the vacancy was in Barrie or Newmarket. When presented with the job trade request, there was be no reason under article 10.3, grounded in fairness or objectivity, to turn it down, since both employees requesting the trade were in the same classification, in the same Ministry and fully qualified. Indeed, to have turned down the request would have been unfair, unreasonable, and likely a breach of article 10.3. Having received notice of the impending job trade, the Barrie Manager promptly cancelled the posting. Although technically the job trade was not finalized until the agreement was signed, nothing stood in the way of the agreement and it was only prudent to cancel the job competition sooner rather than later.

18The job trade meant that the Barrie incumbent permanently moved to Newmarket. It was from that new headquarters that she took her leave to go to the secondment opportunity in Lindsay. The vacancy then occurred in the Newmarket office. The vacancy no longer existed in Barrie as a result of employees exercising their rights under the collective agreement to trade jobs. In my view, the Employer has demonstrated sound and practical reasons for terminating the posting.

19I have every sympathy for the grievor’s personal circumstances. However, he had, and knew of, the opportunity to register for the Job Trade Program, but was not registered at the material time. He feels that the system has not adequately taken care of his interests, in that everyone knew of his plight yet no one supported him; instead, management supported the job traders.

20As set out above, I find that the Employer’s actions in approving the job trade and subsequently withdrawing the job competition were fairly and reasonably taken. The Employer acted in good faith and had bona fide reasons to revise its position. There was no violation of the collective agreement.