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 Harris

Arbitrator

FOR THE UNION

Seung Chi Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel

HEARINGS

October 22, 2015, April 24, November 1, December 22, 2017, June 27, July 11, 2018

DECISION

1This is a job-posting grievance arising out of the Ministry of Community and Social Services, Family Responsibility Office. There were originally nine (9) grievors. There are now five (5). The job competition was for the position of Enforcement Services Officer and was run in October 2014.

2By a decision dated January 9, 2018, the Board determined that if the outcome of these proceedings resulted in a re-run of the competition, any retroactivity to a successful grievor’s pay should commence with the starting date of such a re-run competition.

3Article 22.16 of the collective agreement governs this proceeding. That article reads 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.

4Accordingly, this decision has no precedential value.

5Having heard the submissions of the parties and following my review of the particulars filed by the Union on behalf of the grievors, I order that the job competition be re-run. Taking those particulars as true and provable, the best result that the Union could achieve is a re-run of the competition. It is more likely than not that none of the grievors would be directly placed into the positions. Such a remedy is very rare and is certainly not likely in the circumstances present here.

6I heard the submissions of the parties and met with them on more than one occasion to review the circumstances present here. I am content that the expeditious and informal resolution of these matters favours a re-running of the competition.

7The submissions of the parties focussed on the law relating to an issue being moot. None of the cases relied upon by either of the parties involved a provision such as article 22.16 set out above. The Union properly conceded that article 22.16 vests a wide discretion to an arbitrator. The cases dealing with mootness are not engaged because of article 22.16.

8I exercise that discretion to order that the job competition be re-run. The logistics of the re-run are remitted to the parties. Either party may bring those issues back on before me if they are unable to agree upon the logistics of re-running the job competition. I encourage the parties to give due consideration to the incumbents who have occupied the positions for a considerable length of time. Some of the incumbents were present at the hearing and made submissions.