Ontario Public Service Employees Union (Zimmerman) v Ontario (Natural Resources and Forestry), 2015 OGSB minicounsel 35

GSB#2014-0699

UNION#2014-0727-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Zimmerman)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE GRIEVOR

Billeh Hamud Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Thomas Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 9, 2015

DECISION

1This proceeding was conducted pursuant to the expedited procedure set out in article 22.16 of the collective agreement. In the absence of agreement under article 22.16.7, this Decision shall have no precedential value. I note, for the record, the parties agreement to extend the time for the issuance of the Decision.

2At the outset, the Employer raised a preliminary objection as to the arbitrability of the grievance. Counsel for the Employer submitted that the Grievance Settlement Board lacks the requisite jurisdiction to hear the grievance on the merits, and that the particulars supplied by the Union fail to establish a prima facie violation of the collective agreement. He advised that, for purposes of the preliminary objection, the Employer was prepared to accept the accuracy of the particulars.

3The Union’s particulars read, in part:

“The Grievor, Tracy Zimmerman, has a seniority date of May 1990. She is an Assistant Fire Operations Clerk with the Ministry of Natural Resources. She has over 24 years of experience in the Ontario Public Service.

On November 14, 2013, the Employer posted the Personnel Officer position with the Ministry of Natural Resources located in Dryden, Ontario.

On or before November 28, 2013, the Grievor applied for the Personnel Officer position.

On January 16, 2014, the Grievor was interviewed by Darren McLarty and Gerry Leroux.

On February 4, 2014, Mr. Darren McLarty informed the Ministry of Natural Resources Regional Offices that Jessyca Gauthier has been offered and accepted the Personnel Officer position with the Regional Emergency Operations Centre. Ms. Gauthier has less seniority than the Grievor.

On February 20, 2014, the Grievor filed a grievance alleging a breach of Article 6 of the Collective Agreement ………………………………………

The Union submits that the Employer’s assessment of the Grievor’s performance during the interview and the Employer’s assessment of the Grievor’s ability and qualifications were flawed.

The Union’s particulars list eight (8) alleged flaws with the selection process used by the Employer in this instance.

4The incumbent, Ms. Gauthier, did not attend the hearing. In response to a question from this Vice-Chair, counsel for the Employer advised that the Employer was representing her interests.

5At the time material to this proceeding, the grievor was working on a temporary assignment as a Communications Operator IR. The contract stated the assignment was operative between October 14, 2013 and March 31, 2014, subject to earlier termination. It described the grievor’s ‘Employee Class’ as “Fixed Term” and her ‘Employee Category’ as “Irregular/On Call’”. The grievor certified therein that she was not a Regular employee. I was informed that the grievor had previously worked under a series of seasonal contracts. The Personnel Officer position applied for is described on the posting as a “seasonal recurring contract”.

6The Employer filed a Book of Documents and a Book of Authorities in support of its preliminary objection. Counsel for the Employer presented a lengthy argument. Counsel for the Union responded to same and argued that the instant grievance is arbitrable and should be heard on the merits. Neither party called any witnesses. All of the materials filed and the submissions presented have been fully considered prior to the fashioning of this succinct Decision.

7Articles 1.1, 1.2, 1.3, 1.4 and 1.6 of the Definition section of the collective agreement provide definitions of “regular employee”, “Regular Service”, “fixed term employee”, “Fixed Term Service” and “seasonal employee”. It is clear from a reading of these definitions that the Regular Service does not include fixed term or seasonal employees. Such employees are not considered to be regular employees or to fall within the Regular Service, as defined in articles 1.1 and 1.2. I accept that the Regular Service and the Fixed Term Service are separate and distinct groupings of employees.

8Article 6.1.1 commences with the sentence: “When a vacancy occurs in the Regular Service for a bargaining unit position or a new regular position is created in the bargaining unit, it shall be advertised for at least ten (10) working days prior to the established closing date”. Given the definitions of “regular employee” and “Regular Service” mentioned above, it is clear on its face that article 6.1.1 was intended to capture positions in the Regular Service and to exclude both seasonal and fixed term positions.

9It is also apparent from a review of article 6.1.2 that it was intended to apply to the same type of vacancy or new position referenced in article 6.1.1, namely vacancies and positions in the Regular Service. Article 6.1.2 simply provides that, in the circumstances described therein, the Employer is not required to post or advertise the vacancy or new position, as would otherwise be required under article 6.1.1. I reach a similar conclusion with respect to article 6.2. On my interpretation, the notice of vacancy referenced therein refers back to the vacancy or new position contemplated by article 6.1.1.

10I note that article 6.4 also limits the right to time off to attend a job interview, without loss of pay or credits, to interviews within the Regular Service. This limitation reinforces the view that article 6 is intended to apply to vacancies in the Regular Service and not to positions in the Fixed Term Service, be they seasonal or fixed term.

11Article 6.3 speaks to what the Employer must consider when filling a vacancy. The article obligates the Employer to give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority is to be the deciding factor. When considering the plain and ordinary meaning of the above-mentioned sub-articles of article 6, and after reading article 6.3 in that context, I conclude that the vacancy referenced in article 6.3 was intended by the parties to capture the same type of vacancy or new position as described in article 6.1.1, this being a vacancy in the Regular Service or a new regular position. I have not been persuaded that article 6.3 was intended to apply to seasonal or fixed term positions. In my judgment, it is preferable to interpret all of article 6 in a consistent fashion and to not carve out, or give an inconsistent interpretation to, article 6.3. Simply stated, I accept the Employer’s submission that the obligation imposed on the Employer by the article applies when it is filling a vacancy or position in the Regular Service and that it is not engaged when filling a seasonal position such as the one in this case. It is immaterial that article 6.3 does not expressly reference the filling of a vacancy in the Regular Service. When article 6 is construed in its entirety, it is clear that the word “vacancy” in article 6.3 is intended to capture vacancies in the Regular Service and not any and all vacancies which may arise.

12Article 31A.16.1 lists a series of articles that also apply to fixed term employees, other than seasonal, student and Go Temp employees. Article 32.21.1 similarly lists articles that also apply to seasonal employees. Both articles list articles 6.1, 6.3 and 6.4. As previously mentioned, at the time of the posting and interview process the grievor was working on a fixed term contract. The position applied for was seasonal in nature.

13As noted earlier, article 6.1.1 references a vacancy in the Regular Service or a new regular position. It does not expressly contemplate a posting requirement for seasonal or fixed term positions. To read such a requirement into article 6.1.1, on the basis of articles 31A.16.1 and 32.21.1, would be tantamount to an alteration, change, amendment or enlargement of the collective agreement. The Grievance Settlement Board has no jurisdiction to do any of these things given the clear prohibition found in article 22.14.6. The Employer, in this instance, opted through the exercise of its management rights and discretion to use a posting process. That decision does not create new contractual obligations on the Employer. Similarly, it does not result in new rights for the grievor where none existed before.

14As indicated above, the time off provision contained in article 6.4 is restricted to attendance at interviews within the Regular Service. As with article 6.1.1, this Vice-Chair would contravene article 22.14.6 were I to find that article 6.4 also applies to interviews for fixed term or seasonal positions. I conclude that articles 31A.16.1 and 32.21.1 have the effect of providing the time off when either a fixed term or seasonal employee is interviewed for a position in the Regular Service.

15After considerable thought, I similarly find that the reference to article 6.3 in articles 31A.16.1 and 32.21.1 provides fixed term and seasonal employees with the right to grieve a job competition, on the basis of an alleged violation of article 6.3, when such employee is applying for a vacancy or new position in the Regular Service. The articles do not provide fixed term and seasonal employees with the right to grieve under article 6.3 with respect to a position in the Fixed Term Service.

16I note that article 6.3 was first added to the list of articles cited in articles 31A.16.1 and 32.21.1 in the 2009 to 2012 collective agreement. At the same time, the words "Regular Service” replaced “Classified Service” in article 6.1.1. I think that if the parties then intended to extend grievance rights for employees applying for seasonal or fixed term positions, they would have resorted to clearer language to express such intent. To reiterate, I have been persuaded that the changes made in that round of negotiations served to extend the rights of seasonal and fixed term employees when they applied for a vacancy or new position in the Regular Service.

17I am inclined to accept the Employer’s submission that the parties have agreed to a separate regime for seasonal and fixed term employees in view of distinct operational requirements. Counsel for the Employer advised that there is a need to quickly fill a large number of seasonal positions, many with an uncertain duration, in order to meet operational needs. He further maintained that a requirement to post and compete these positions under article 6.3 could seriously impact the Employer’s business interests. Counsel observed that, if article 6 applies to seasonal positions, the Employer would have to post the job for ten (10) working days and then administer a competition. Such requirements could potentially attach to a vacancy as short as eight (8) weeks. I find merit in counsel’s argument that a purposive analysis supports the conclusion I have reached with respect to the applicability of article 6.3 to the circumstances of this case.

18Article 8.6.1 provides that article 6 does not apply to a situation where an employee is assigned temporarily to a position except where: (i) the term of a temporary assignment is greater than six (6) months’ duration; and (ii) the specific dates of the term are established at least two (2) months in advance of the commencement of the temporary assignment.

19In my judgment, the above exception is inapplicable here for the following reasons. First, the circumstances existing in this case did not involve the Employer making a temporary assignment. Rather, the grievor applied for a temporary seasonal recurring contract pursuant to a posting. Second, the posting for the Personnel Officer position did not clearly specify that the duration of the contract would be for a period of greater than six (6) months. While the Job Term stated “1 Temporary 9 month seasonal recurring contract”, under the heading of Additional Information the position was described as “Seasonal, duration up to 9 months”. I note that all of the grievor’s prior seasonal contracts filed in this proceeding stated that the term was “subject to earlier termination”. Additionally, the posting did not reference a period of February to November, as did another posting for a Warehouse Clerk position which was provided by the Union. Lastly, no firm evidence was led to establish that the specific dates of the term were set at least two (2) months in advance of the commencement of the temporary assignment. Indeed, the specific term of the contract was not expressly identified in the posting.

20The Union’s position, in substance, is premised on a claim that the grievor’s rights under article 6.3 and 8.6.1 were contravened by the Employer. I have determined above that neither article is applicable in this instance. It follows that the particulars provided by the Union are insufficient to establish a prima facie violation of the collective agreement. Viewed from a slightly different perspective, it is established that the Grievance Settlement Board lacks jurisdiction to review the Employer’s exercise of management rights unless the exercise of same affects some right of an employee under the collective agreement. That impact has not been made out in this case. Additionally, there is no allegation that the Employer acted in bad faith. Accordingly, this Board lacks the jurisdiction to hear the grievance on its merits.

21For all of the above reasons, the preliminary objection of the Employer is sustained and the grievance is hereby dismissed.