GSB#2014-2726

UNION#2014-0534-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Yin)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Vice-Chair

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Susan Munn Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 16, 2015

Decision

1In a grievance dated August 15, 2014, Ms. H. Yin claims in essence that the Employer contravened the Collective Agreement in the way it handled the filling of a permanent and a temporary Desk Auditor positions at Oshawa that were posted on March 7, 2014 (competition #63878). The Employer ended up filling only the permanent Desk Auditor position at Oshawa in this competition. As a remedy, Ms. Yin seeks a permanent Desk Auditor position. The parties agreed to deal with this grievance pursuant to article 22.16 of the Collective Agreement.

2At the hearing on April 17, 2015, the parties tried to settle the grievance, but were not able to resolve this dispute. The representatives of the parties provided me with the circumstances giving rise to the grievance and their positions on the grievance and requested that I address the grievance in a brief decision.

3The relevant events began in early 2013 when Ms. Yin applied for a position in response to a posting that went up on January 2, 2013 for Desk Auditor (Talent Pool) (competition #48791). She had indicated that she was interested in a Desk Auditor position at a number of locations, including Oshawa. The posting indicated that there were two positions currently available and that the competition would be used to create an eligibility list to fill upcoming permanent and temporary positions within the next twelve months. Ms. Yin was interviewed for a Desk Auditor position, but did not secure such a position at that time. However, she was advised that her name was placed on the eligibility list, that candidates on the list may be contacted until March 14, 2014 to fill Desk Auditor vacancies and that she had ranked #7 for the locations she had identified on her application. Ms. Yin expected that she would be contacted for a Desk Auditor vacancy in Oshawa, one of the locations she had identified, if a vacancy arose before March 14, 2014. The individuals who ranked #2 and #5 on the eligibility list had also identified Oshawa as one of their locations.

4With respect to the March 7, 2014 posting for the two Desk Auditor positions at Oshawa, the Employer was obliged to first ascertain whether the positions could be filled by persons on lay-off through the targeted direct assignment (“TDA”) process. The TDA process was not completed until March 24, 2014. It was then that the permanent Desk Auditor position was authorized. This authorization took place after the expiry of the eligibility list that had been created in the earlier #48791 competition. I understand that Ms. Yin also applied for a Desk Auditor position in response to the March 7, 2014 posting, but was not successful.

5In an email to the Careers Team dated July 3, 2014, Ms. Yin inquired as to why the positions posted on March 7, 2014, were not filled by using the eligibility list that had been created in competition #48791. Unfortunately, she was initially provided with incorrect information. The claim arising from Ms. Yin’s grievance is that the Employer should have filled the permanent Desk Auditor position at Oshawa referenced in the March 7, 2014 posting by utilizing the eligibility list created in competition #48791.

6The Employer’s position is that it was not obliged in the circumstances to go to the eligibility list to fill the permanent Desk Auditor position at Oshawa that was referenced in the March 7, 2014 posting because the eligibility list had expired by the time authorization had been obtained to fill the position. The Employer also took the position that there is no basis for concluding that Ms. Yin would have been selected for the Desk Auditor position in Oshawa even if it had been obliged to fill the position from the eligibility list because of where she ranked on the list.

7In reviewing the circumstances in the instant case, it appears that the Employer’s position that it was not obliged to use the eligibility list from competition #48791 to fill the permanent Desk Auditor position that was posted on March 7, 2014, has considerable merit. In any event, even if the Employer was obliged to fill that permanent position from employees on the eligibility list, I am not satisfied on the basis of the material before me that Ms. Yin would have been selected to fill the position at Oshawa given her ranking on the eligibility list. Therefore, even assuming that the Employer had contravened the Collective Agreement by not utilizing the eligibility list, I am not satisfied that a remedy for the breach would be to award Ms. Yin with a Desk Auditor position.

8For the foregoing reason, Ms. Yin’s grievance dated August 15, 2014, is hereby dismissed.