GSB#2013-0091, 2013-0092

UNION#2013-0453-0001, 2013-0453-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Robinson)

Union

• and -

The Crown in Right of Ontario (Ontario Tourism Marketing Partnership Corporation)

Employer

BEFORE

Ian Anderson

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors Counsel

FOR THE EMPLOYER

Lisa Compagnone Ministry of Government Services Labour Practice Group Counsel

HEARING

June 26, 2014

Decision

1In or about May 2012, the Employer provided notice of lay-off to the Grievor from her regular part-time position as a Travel Counsellor (des). The Grievor was laid-off in November 2012. In or about November 2012 the Employer posted a regular full time Travel Counsellor position (des). The Grievor applied. The Employer permitted her to compete for the position. In or about February 2013 the Grievor learned that she was not successful. The Union then filed two grievances on behalf of the Grievor. The first alleges that the full time position should not have been posted rather it should have been directly assigned to the Grievor pursuant to Article 20.3 (the “redeployment grievance”). The second alleges that in any event the Grievor should have been the successful candidate in the competition (the “posting grievance”).

2Both grievances have been referred to arbitration. They are to be heard together. The parties have agreed that the expedited provisions of Article 22.16 shall apply.

3The Employer considers written French language capability to be a requirement of the full time Travel Counsellor position. During the competition she failed to pass the written French language test established by the Employer. There is no suggestion that the test was not fair in its content or administration. Accordingly, unless the Union can establish that the written French language requirement established by the Employer was not a legitimate exercise of its management rights, neither grievance can succeed. There are few, if any, facts in dispute as between the parties with respect to this issue. It is efficient, therefore, to address this issue first.

4If the Union succeeds with respect to the first issue, the Employer reserves its right to argue that the redeployment grievance is untimely. There are few facts in dispute with respect to this issue and little viva voce evidence will be required. It is efficient to address this issue as a preliminary matter.

5Accordingly, the next day of hearing will be restricted to the first and second issues. The Union is to provide full particulars relevant to these two issues to the Employer by August 15, 2014. The parties are to use their best efforts to reach an agreed statement of facts for the purposes of the first and second issues. The hearing will resume on December 8, 2014. The parties are directed to give notice to the successful applicant for the full time position as her rights may be affected by the posting grievance.

6I am seized.