GSB#2013-2575, 2013-2576
UNION#2013-0368-0125, 2013-0368-0126
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Fitzpatrick et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Ian Anderson
Vice-Chair
FOR THE UNION
Indika Chandrasekara Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Kevin Dorgan Treasury Board Secretariat Legal Services Counsel
HEARING
December 16, 2015
Decision
1This decision is issued in accordance with Article 22.16 of the collective agreement, and is without prejudice or precedent.
2Both of these grievances relate to the temporary assignment of Amie Hilditch to the position of Probation and Parole Officer (“PPO”) in Peterborough by Joe Woodgate. The initial assignment was for a period of four months, however this was subsequently extended by a further three months. Prior to the assignment, Ms. Hilditch was a Rehabilitation Officer at the Central East Correctional Centre (“CECC”) in Lindsay. The Grievors are also Rehabilitation Officers at the CECC. They have more seniority than Ms. Hilditch. Each of the Grievors asserts that she should have been given the temporary assignment.
3The following provisions of the collective agreement are relevant to temporary assignments:
8.6.1 Where an employee is assigned temporarily to a position, Article 6 (Posting and Filling of Vacancies or New Positions) shall not apply except where:
(a) the term of a temporary assignment is greater than six (6) months’ duration, and
(b) the specific dates of the term are established at least two (2) months in advance of the commencement of the temporary assignment.
8.6.2 In no case shall any provision of this Central Collective Agreement with respect to the filling of, assignment or appointment to a vacancy apply to temporary assignments, except as provided in Article 8.6.1.
4The Union and the Grievors raise in essence two categories of concerns. The first is whether Article 8.6.1 operated to exclude the temporary assignment from the posting provisions of Article 6. The Union asserted that the Employer knew or ought to have known that the duration of the assignment was more than six months and further that the Employer was aware of this duration of the assignment more than two months in advance of the assignment.
5There is no direct evidence to support either assertion. Ms. Fitzpatrick asserted that Ms. Hilditch told her more than two months in advance of the assignment that she was going to be getting an assignment as a PPO. I prefer the direct evidence of Mr. Woodgate. Mr. Woodgate stated that the need for the assignment arose only two weeks before when an individual who was filling the position on a fixed term contract, Stephanie Leonard, advised him that she had accepted a permanent position elsewhere and would be leaving. Ms. Hilditch’s initial temporary assignment was for the period September 12, 2013 to January 6, 2014. Her temporary assignment was subsequently extended to April 13, 2014 in order to backfill for another employee on temporary assignment, Ryan Mason. Mr. Mason had been given the temporary assignment on September 16, 2013, after the decision was made with respect to Ms. Hilditch’s initial assignment.
6Ms. Fitzpatrick asserted that the Employer would have known that Ms. Leonard’s departure would give rise to a vacancy of over six months which would need to be filled. The basis for this assertion was Ms. Fitzpatrick’s knowledge of the Employer’s practice with respect to Correctional Officers. Ms. Fitzpatrick states that the Employer carries a complement of fixed term contract Correctional Officers and that it takes more than six months to hire a new one to maintain the complement. Therefore, temporary assignments to fill a vacancy in the complement of fixed term contract Correctional Officers are more than six months long. Again I prefer the direct evidence of Mr. Woodgate. Mr. Woodgate stated that what ever the practice may be with respect to Correctional Officers, there is no practice of maintaining a complement of a fixed term contract PPOs in the Peterborough office.
7Accordingly, I find that Article 8.6.2 operated to exclude the operation of any provision of the collective agreement to the temporary assignment. Given this, it is common ground that the filling of the temporary assignment was a matter of Employer discretion. It is also common ground that the Employer must exercise that discretion in accordance with the “good faith” standard articulated in Bousquet. The second category of Union concerns relate to whether the Employer did exercise the discretion in good faith.
8Neither party provided Bousquet, rather they provided cases that quoted from and applied Bousquet. The Union provided Ontario Public Service Employees Union (Perez) v. Ontario (Ministry of Community and Social Services), 2003 CanLII 52894 (ON GSB) (Abramsky), relying on the statement from Bousquet that while there is nothing in the collective agreement which requires the Employer to consider advancement opportunities for employees, it cannot use its management rights in such a way as to “deliberately tilt the field with a view to preferring one employee over another”. The Employer provided Ontario Public Service Employees Union (Dufour) v Ontario (Ministry of Community and Social Services), November 9, 2015, (Briggs) as the most recent application of Bousquet.
9There is no real dispute on the applicable principles. I find the following statement by Vice Chair Abramsky in Perez useful:
In Re OPSEU (Young et al./ Group Grievance) and Ministry of the Attorney General, supra, I reviewed the “good faith” standard as set out in Bousquet. I concluded at pp. 14-15:
The Board in Bousquet extensively reviewed the jurisprudence regarding what constitutes “good faith.” The Board adopted, essentially, a two-part standard. The first requirement is the absence of bad faith, i.e., the decision must not be improperly motivated or maliciously intended. The second requirement is a requirement of “reasonableness”