GSB#2009-2592

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Association of Management, Administrative and Professional Crown Employees of Ontario (Vander Kooij)

Association

• and -

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

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

James McDonald Sack Goldblatt Mitchell LLP Barristers and Solicitors

FOR THE EMPLOYER

Cathy Phan Ministry of Government Services Counsel

HEARING

May 3, 2010.

Decision

1In this dispute, the complainant, Lisa Vander Kooij, alleges that the employer conducted an unfair job competition. She seeks appointment to the position in question. The employer asserts that I am without jurisdiction to entertain this dispute. This decision deals with that objection.

2The parties filed the following statement of agreed facts:

For the purposes of dealing with the Employer’s preliminary objection, the parties agree to the following facts, while reserving the right to argue about whether some, or any, of them are relevant to the determination of the Employer’s preliminary objection to the arbitrability of the Dispute.

1. Lisa Vander Kooij (the “Complainant”) was a fixed term unclassified contract employee with the Ministry of the Attorney General, Office of the Public Guardian and Trustee (the “Employer”) from January 13, 2003 to June 19, 2009.

2. As a fixed term unclassified contract employee, the Complainant’s terms and conditions of employment are governed by the AMAPCEO collective agreement.

3. From approximately January 13, 2003 to June 19, 2009, the Complainant worked in fixed term unclassified contract positions, including from August 2003 to March 2005 and from May 1, 2007 until February, 2008 as an unclassified 14AFA Client Representative, and from March 2005 until April 2006 and from May 1, 2007 until February 1, 2008, as an unclassified Senior Client Representative.

4. In January, 2008, the complainant was the successful candidate for an unclassified Senior Client Representative (17ASL) contract, which was to last until August, 2008, and was subsequently extended until January, 2009, and then to June 19, 2009.

5. On June 12, 2009 the Employer posted Job ID 17966, a job posting for a number of classified 14AFA Client Representative positions, at the Office of the Public Guardian and Trustee (“OPGT”). (Exhibit 1)

6. On June 12, 2009, while she was still an employee of the OPGT, the Complainant submitted her application for Job ID17966.

7. On June 19, 2009, the Complainant’s unclassified contract as a Senior Client Representative ended, before the closing date of the competition on June 26, 2009.

8. The Complainant attended an interview for the position on August 6, 2009 with other candidates, and completed all of the questions and was assessed for the position.

9. By letter dated September 14, 2009 (Exhibit 2), the Complainant was advised that she had not been successful in the competition.

10. the Employer filled five of the eight positions as a result of the competition in question, and subsequently held another competition to fill the remaining three positions on a backfill basis.

11. On September 16, 2009, the Complainant filed a Stage One Dispute alleging that the Employer had conducted an unfair competition for Job ID 17966 (Exhibit 3). On September 28, 2009, AMAPCEO filed an amended Dispute at Stage 2 of the Dispute Resolution Process (Exhibit 4).

12. In its Stage 2 response letter of October 22, 2009, the Employer denied the Dispute and raised a preliminary objection to the jurisdiction of the GSB and the arbitrability of the Dispute (Exhibit 5).

13. On [June] 15, 2009, the Complainant and Doug Dixon, Director, Client Services and Deputy Public Guardian and Trustee exchanged emails (Exhibit 6).

14. On September 8 and September 9, 2009, the Complainant and Careers Restricted exchanged emails (Exhibit 7).

3The nature of the employer’s preliminary objection is simple and straightforward. While it acknowledges that the complainant was an employee at the time she submitted her application for the job in question, her status changed shortly thereafter and even before the closing date of the competition. By the time it was decided and the complainant was advised that she had been unsuccessful in the competition, almost a full 3 months had elapsed from the termination of her employment.

4The employer acknowledges that Article 21.1.1(b) of the collective agreement is applicable to the complainant. It reads:

Fixed term employees under the Agreement will have notice entitlements under the Employment Standards Act and be entitled to apply to restricted competitions under Article 27.11.8 for twenty-four (24) months after the date of layoff.

5Despite that provision and the complainant’s agreed ability to enjoy its benefit, the employer maintains its preliminary objection, arguing essentially that the complainant, as a former employee, cannot advance her dispute regarding the job competition.

6In support of its position, the employer relied upon three arbitration awards. In OPSEU (Gallagher) v. Ministry of the Solicitor General and Correctional Services, GSB File No. 1994-0152, October 24, 1996 (Gray), a decision of this Board, the grievance of a former unclassified corrections officer contesting the termination of his employment (or, perhaps more accurately, the employer’s decision to not renew or offer a new contract) was dismissed. The Board concluded, on the facts of the case, that the impugned decision was taken at a time when the grievor was no longer an employee (the grievor had been off work for several months as a result of injuries sustained in an automobile accident and when the decision was taken not to offer a further contract, the grievor, whose last contract had expired some weeks earlier, was still not in any position to return to active duty). The grievance asserted that the decision constituted improper discrimination on the basis of handicap, prohibited by the terms of the collective agreement.

7The Board concluded that the differential treatment complained of occurred after the grievor had ceased to be an employee covered by the collective agreement and therefore could not be the subject of a grievance.

8In arriving at that conclusion, the Board observed as follows (at page 12):

…The employer’s treatment of someone after he or she has ceased to be an employee covered by the collective agreement is not governed by that collective agreement, unless the treatment in issue is in respect of an entitlement which arose while the individual was still an employee. For example, some amounts earned by an individual during employment may not be due and payable until a time when the individual is no longer an employee. The failure to pay those amounts could still be the subject of a grievance on that individual’s behalf even though it occurs after he or she ceased to be an employee, because the employer’s obligation to pay arose out of and during employment governed by the collective agreement.

9The other two cases relied on by the employer also involved the dismissal of grievances filed by former employees. In Re Honeywell Ltd. And United Automobile Workers, Local 80 (1975), 1975 CanLII 2104 (ON LA), 10 L.A.C. (2d) 446 (Hinnegan) the insurer discontinued the grievor’s LTD benefits. The benefits had been in place for some 3 years, the last of which was after the termination of the grievor’s employment. In Toronto (City) v Canadian Union of Public Employees, Local 416 (Toronto Civic Employees’ Union) (Morland Grievance), [2004] O.L.A.A., on facts which bear some similarity to the instant ones, the grievors had been employees at the time they submitted applications for a job posting but were eliminated from the process before it was concluded but after they had terminated their employment.

10In both cases the grievances were dismissed on precisely the same basis the employer urges me to do in the present case – the grievors, not being employees under the relevant collective agreement at the time the grievances were filed, were unable to advance any right under the agreements. In particular, in the City of Toronto case, the arbitrator concluded (at page 5):

…the parties did not intend that individuals who were no longer employees were entitled to this right [the right to proceed in a job call]. Had the parties intended this result, it would have been quite easy to draft language that entitled anyone who applied while an employee to continue in the competition after they ceased to be an employee. It is far more likely, given the language used, that the parties never intended that former employees who become employees of other employers would continue to have the right to be considered for job postings with their previous employer.

11The employer also points to the Dispute Resolution Procedure in the collective agreement and, in particular, to the Statement of Intent found in Article 15.1, which talks of resolving employee complaints. The employer acknowledges that Article 27.1.1(b) applies to the complainant and that it would be a violation of the collective agreement to not allow her to apply for positions subsequent to the termination of her employment – however, that, it is submitted, is the extent of her right, i.e. to apply and nothing more. She cannot initiate and pursue a dispute challenging the propriety of a job posting process which follows the termination of her employment.

12The Association submits that a virtually identical issue has already been decided by this Board. It relies on the decision in OPSEU (Union Grievance) v. Management Board Secretariat, GSB File No. 1999-0405, May 8, 2001 (Abramsky) and the cases cited therein. That case arose under the OPSEU collective agreement which contains a provision that relates to employees identified as surplus who opt to receive pay in lieu of notice, thereby forfeiting certain job security entitlements. However, the collective agreement (in Article 20.2.3) provided that such an employee:

…will be eligible to apply for restricted competitions from the last day of work until twenty-four (24) months from the date on which lay-off would otherwise have occurred.

13The policy grievance considered by the Board dealt with the employer’s position that individuals who applied for restricted competitions under that Article were not entitled to grieve with respect to those competitions. One of the arguments advanced by the employer and rejected by the Board is similar to the one before me. As the Board described it (at page 6):

…the Employer argues that the “right” surplussed employees have to apply for restricted competitions should be literally interpreted to mean that they are “eligible to apply for restricted competitions…” period. If they are precluded from applying, it submits that may be grieved, but nothing further. This limited “right”, it asserts, is what the parties agreed to in Article 20.2.3, and the Board has no power to alter or amend the collective agreement. Acceptance of the Union’s position, it asserts, would constitute an alteration of the parties’ agreement. The Board, it argues, must give the language its “plain meaning”…It contends that the fact that the grievance procedure is limited to “employees” further underscores that non-employees should not be allowed to grieve under Article 20.2.3.

14In rejecting the employer’s contention, the Board reasoned as follows (at page 11 et. seq.):

Based on the case law cited, the question of arbitrability of Article 20.2.3 depends on whether that provision creates a substantive right on behalf of employees who elect pay in lieu of notice. Whether the individual is an “employee” at the time of the grievance or at the time the claim arose is not determinative because a collective agreement may confer a right or benefit on a non-employee that is enforceable through the grievance arbitration procedure. See, Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 [(1975), 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103 (O.C.A.)]…What matters is whether the collective agreement creates a substantive right and that is a matter of contract interpretation.

For a number of reasons, I conclude that the last sentence of Article 20.2.3 creates a substantive right in surplus employees who elect pay in lieu to apply to restricted competitions for a period of twenty-four months.

By its terms, Article 20.2.3 states that employees who elect pay in lieu “will be eligible to apply for restricted competitions...” By definition, a restricted competition is limited to current classified civil servants or unclassified staff working in the OPS during the posting period. Accordingly, the ability to apply to restricted competitions is an ability which non-employees do not enjoy. It is a real, tangible, substantive benefit.

That the parties intended it to be meaningful, as opposed to gratuitous, is evident from the fact that it was bargained. It was a negotiated benefit. It was part of a package of benefits negotiated to encourage employees to accept pay in lieu instead of remaining to seek displacement or redeployment opportunities…

The fact that the words “eligible to apply” are used rather than “right to apply” makes no material difference. Stating that employees who elect pay in lieu “will be eligible to apply” is no different than stating that they have the right to apply.

Accordingly, I conclude that the right to apply to restricted competitions contained in Article 20.2.3 is a substantive right in the employee who accepts pay in lieu which may be asserted against the Employer. As such, a dispute over it creates a “difference between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement…” as set forth in Article 22 and Section 7(3) of CECBA.

15The Association urges me to adopt this reasoning and to dismiss the employer’s preliminary objection to the arbitrability of this grievance.

16For the reasons which follow, I am satisfied that the employer’s preliminary objection must be dismissed. At the outset, however, and in the interest of clarity, I underscore what is and is not being decided herein. It was clear from the parties’ submissions that, even assuming this preliminary objection were to be dismissed, there is a further legal issue which separates them. The employer indicated that even if its conduct of the job competition process were subject to review under this grievance, the standard to be applied would be a fairly limited one (a proposition which may be supported by the Union Grievance relied upon by the Association in defending against the employer’s preliminary objection). For its part, the Association indicated that, in its view, no meaningful distinction exists as between the standard this complainant can claim and that which would be available to a fixed term employee whose employment status was intact at the time of the filing of the grievance. This issue was not fully addressed by the parties and does not form the basis of the employer’s preliminary objection and, consequently, is not determined or addressed in this decision. The parties will obviously have the full opportunity to pursue their positions when the hearing convenes to deal with the merits of the grievance.

17I have not found the cases relied upon by the employer to be supportive of its case. It is undoubtedly true that, as a general proposition, collective agreement rights are conferred upon bargaining unit employees and non-employees cannot assert rights found in a collective agreement. That proposition, however, is not devoid of exceptions in the appropriate cases. Neither do I take the comments of this Board in the Gallagher case to be intended to or to otherwise establish an exhaustive catalogue of the circumstances in which a grievance may advance the rights of former employees. There is a critical distinction to be made, however, as between the facts before the Board in that case and those in the instant one. In Gallagher there was no collective agreement provision relied upon or pointed to that created rights which were clearly and explicitly fashioned to survive the termination of the employment relationship. The same is true in respect of both the Honeywell and City of Toronto cases. Indeed, in the latter case, the arbitrator premised his conclusion, at least in part, on the fact that had the parties wished to extend the rights in question to former employees, they could have drafted collective agreement language to effect that result. In my view, the parties have done precisely that in the instant case. Indeed and while the precise nature and extent of the right may be the subject of further argument in these proceedings, the employer in this case does not dispute that the complainant is entitled to the benefit of Article 27.1.1(b) which it agrees applies to her.

18In that context, I find the approach and reasoning of the Union Grievance to be far more apposite and persuasive. The parties have negotiated a right which, while its full breadth and scope may be yet to be determined, clearly inures to the benefit of former employees. That right is and must be meaningful and enforceable and cannot be dismissed through the vehicle of a preliminary objection based on the complainant’s employment status when such status is not an obstacle to the negotiated benefit.

19Accordingly, the employer’s preliminary objection must be and hereby is dismissed. The parties should contact the Registrar for the purpose of setting further hearing dates.