GSB#2014-4059; 2014-4249; 2014-4326; 2014-4327; 2014-4328; 2014-4329; 2014-4330; 2014-4334; 2014-4335; 2014-4501; 2014-4502

UNION# 2014-0534-0026; 2014-0534-0028; 2014-0534-0031; 2014-0534-0032; 2014-0534-0033; 2014-0534-0034; 2014-0534-0035; 2014-0534-0039; 2014-0534-0040; 2014-0534-0041; 2014-0534-0042

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Askarzada et al)

Union

• and -

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

Employer

BEFORE

Daniel A. Harris

Arbitrator

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARINGS

October 22, 2015, April 24, November 1 and December 22, 2017

DECISION

1This decision is made pursuant to the Mediation/Arbitration provisions of the collective agreement between OPSEU and the Crown in Right of Ontario. The salient provisions for the purposes of this Decision are as follows:

22.16 MEDIATION/ARBITRATION PROCEDURE

22.16.1 Except for grievances concerning dismissal, sexual harassment, and/or human rights, and Union grievances with corporate policy implications, all grievances shall proceed through the GSB to a single mediator/arbitrator for the purpose of resolving the grievance in an expeditious and informal manner.

22.16.2 The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (five) days after completing proceedings unless the parties agree otherwise.

22.16.7 Decisions reached through the mediation/arbitration process shall have no precedential value unless the parties agree otherwise.

2Accordingly, this Decision is not binding on any future proceedings between these parties, as the employer specifically did not agree.

3This is a job-posting grievance arising out of the Ministry of Community and Social Services, Family Responsibility Office. There were originally nine (9) grievors who grieved that a job competition for the position of Enforcement Services Officer, run in October 2014 was not properly run. There are now six (6) grievors who are pursuing the grievances. The first day of hearing was October 22, 2015. The second day of hearing was April 24, 2017 and the third day of hearing was November 1, 2017. Those days were largely taken up with unsuccessful mediation efforts and procedural matters. On December 22, 2017, these matters reconvened to deal with two preliminary considerations.

4The first was with respect to which of the incumbents should be given notice of the proceedings so that they could participate should they wish to do so. Following the job competition in October 2014, the employer offered permanent positions to nine of the applicants and temporary positions to fourteen of the applicants. Those temporary positions have run their course and the parties are agreed that they are no longer in play. In any event, the grievors before me are only interested in the permanent positions. In the union’s submission, if the grievors are to be successful in their challenges to the fairness of the competition, such success would be measured against whether the purported flaws in the competition were so fatal that one or more of the grievors would have been successful. In such a situation they should be put into the position. The second possible outcome would be that the purported flaws would only have resulted in a finding that one or more grievors could have been successful. In such a situation, the job competition should be re-run. The third outcome would be that there were flaws in the running of the competition but they were not of such a degree that any individual remedy is available. All that would issue would be a declaration.

5On the first issue before me, the parties agree that any successful applicant in the job competition should be given notice of the proceedings and permitted to have party status. There are two exceptions to that. The first is that there was one successful applicant who is senior to all of the remaining grievors and would have first claim over the remaining grievors in any event. He has no interest in the outcome of these grievances. The second exception relates to those grievors who have moved on to other jobs in other Ministries. That would be consistent with my decision in this matter dated November 9, 2017 requiring attendance on December 22, 2017 for their matters to proceed. This latter category failed to attend.

6The second preliminary consideration dealt with on December 22, 2017 was whether, if there was a re-run ordered, there would be any retroactivity with respect to wages should any of the remaining grievors be successful in the re-run job competition.

7The union took the position that there should be retroactivity in order to make a successful grievor whole. It relied on the following authorities: OPSEU and Ontario (Ministry of Correctional Services), (GSB #1999/98, Harris, March 1, 2002); OPSEU and Ontario (Ministry of Labour), (GSB #2007-2529 et al, Dissanayake, June 15, 2010).

8The employer submitted that should a grievor be put into a position because the job competition was so fatally flawed that they would have won the competition, absent the flaws, they should be made whole, including retroactive pay. Its further submission was that grievors who are successful on a re-run competition should not be entitled to retroactive pay. The employer relied on the following authorities: OPSEU and Ontario (Ministry of Correctional Services) (GSB, Harris, March 1, 2002); OPSEU (Zuibrycki) and Ontario (Ministry of Industry and Tourism) (GSB, Prichard, 1981); Brockville and Area Community Living Association and OPSEU (Loshaw) 1997 CarswellOnt 6666 (Thorne).

9First, the union is misreading my earlier decision of March 1, 2002 relating to the Ministry of Correctional Services. The penultimate paragraph of the decision refers to the retroactivity date for compensation as the “starting date of the competition”. The entire paragraph relates to the ground-rules for re-running the competition. All of the antecedents of “this competition” are related to the re-run of the competition not the original competition.

The Board is in no position to award the job to any of the individuals involved in the instant matter. The competition is to be rerun and any of the five individuals herein may compete. The competition is to be rerun with primary consideration given to the candidates’ qualifications and abilities to perform the required duties of the position as at September 1998. If there is a written component, all candidates are to write the test at the same time, under the same conditions including the length of time permitted to write the test. All candidates are to be provided with a “wheel” in order to assist with the calculations. A new selection committee is to be struck, no member of the previous selection committee shall sit on the newly constituted committee. The selection committee shall obtain and consider references from each candidate’s supervisor or other person familiar with their work. Such references shall be designed so as to elicit information about each candidate’s qualifications and ability to perform the essential tasks of the position. Each member of the selection committee shall review each candidate’s personnel file and performance appraisals for the purpose of assessing their qualifications and ability to perform the essential tasks of the position. All written records shall be retained. The competition is to be designed so as not to favour the current incumbent. If any of the grievors are successful, they are to be compensated from the starting date of this competition.

10In my view, on this article 22.16 Decision, there is no reason to depart from that outcome. This job competition was three (3) years ago. Should the result here end in re-running the competition the time will stretch back even further.

11My conclusion is buttressed by both Vice-chair Prichard’s reasons (supra) where the grievor was compensated because he was put into the position and the decision of arbitrator Thorne (supra) at paragraph 20:

20 This board might have rated these individuals a little differently on some of the factors assessed, but I am not satisfied that a case has been made out that the grievor would have been the successful candidate. Only if that were the case would the grievor be entitled to the compensation which the Union is seeking for her. In other circumstances this might be a case in which the Employer would be directed to re-run the competition, but in this case the temporary assignment in question has been completed and there cannot now be a real competition for the position. It would not be appropriate to award compensation to the grievor (or to any of the other candidates) on the basis that she might have won the competition in other circumstances.

12I am mindful that Vice-Chair Dissanayake took a different approach. However, in the context of this article 22.16 proceeding, I am of the view that any retroactivity to a successful grievor’s pay, if a re-run is ordered, should commence with the starting date of such a re-run competition. I remain seized to hear submissions on the exact date, in that eventuality.