P0008/89
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
C. Lacombe
Grievor
- and -
The Crown in Right of Ontario (Ministry of Colleges and Universities)
Employer
BEFORE
J. A. Willes S. Goldberg
Chairperson
Member
FOR THE GRIEVOR
C. Lacombe
FOR THE EMPLOYER
C. Peterson Counsel Winkler, Filion and Wakely Barristers & Solicitors
HEARING
February 20, 1990.
INTERIM DECISION
The grievor, Mr. Claude Lacombe, a Senior Policy Advisor in the Research Support and International Activities Branch of the Ministry of Colleges and Universities, submitted a grievance dated December 12, 1989, which reads as follows:
I, Claude Lacombe, Senior Policy Adviser, Research Support and International Activities Branch, Ministry of Colleges and Universities, hereby submit a request for hearing by the Public Service Grievance Board under the Working Conditions and Terms of Employment Grievance Procedure (R.R.O. 1980, Regulation 881, section 53) regarding the following matters:
a competition held for the position of Manager, Research Support Unit in the Research Support and International Activities Branch on September 12, 1989 in which I was an unsuccessful candidate was awarded without due consideration of the merit principle which is supposed to guide all appointments in the public service;
a major factor in the decision to appoint another candidate to the position of Manager was the fact that I am a francophone born outside Canada;
prior and following the competition and in spite of repeated requests, I have been systematically denied work assignments commensurate with my classification and my abilities, qualifications and performance.
A hearing was scheduled and held on February 20, 1990, at which time counsel for the employer raised a preliminary objection with respect to the remedy requested by the grievor.
Counsel for the employer submitted that the grievance should be dismissed because the remedies requested by the grievor do not fall within the jurisdiction of this Board to grant as relief. In support of this position, counsel argued that the only remedy available to this Board (if the Board should uphold the grievance) would be to order a re-run of the competition in question. Counsel cited as authority for this argument previous Public Service Grievance Board cases numbered 233/245/64 L. Verrier and N. Bugg and The Crown in Right of Ontario (Department of Health); Messrs. Webb, Reeves & Renshaw and The Crown in Right of Ontario (Ministry of Revenue) No. 864/75; F. Kehoe and Crown in Right of Ontario (Ministry of Transportation and Communications) 914/82; Dr. J. Hough and Crown in Right of Ontario (Ministry of Community and Social Services) 927/84.
The grievor submitted that the jurisdiction of the Board has nothing to do with the remedy, and that the Board has the authority to fashion an appropriate remedy if it should find in favour of the grievor. The grievor argued that his grievance was about a competition that in his view was unfairly conducted, and this fell within the jurisdiction of the Board to hear, as it was related to "working conditions and terms of employment”. In support of this position, the grievor cited the case of C. Colacci and The Crown in Right of Ontario (Ministry of Consumer and Commercial Relations) 912/82, where the Public Service Grievance Board held that grievances concerning position competitions fall within the jurisdiction of the Board under the Public Service Act Regulation 881 s. 50 (1).
This Board has reviewed the submissions of the parties concerning the employer's preliminary objection as to the jurisdiction of the Board to hear the grievance, and we see no reason why this Board should not assume jurisdiction to hear complaints related to position competitions. This position is consistent with the determination of jurisdiction taken by the Public Service Grievance Board in previous matters before it, notably, the Colacci case cited to us at this hearing. The question of remedy however, is a different matter. The remedy which this board would normally fashion for a flawed competition would be a remission of the matter back to the employer to have the competition properly carried out. This is so because Boards of Arbitration are rarely (if ever) prepared to substitute their judgement for that of the employer's selection committees with respect to the relative qualifications and abilities of the candidates for particular positions. Nor are they prepared to order an employer to promote or create a new position for a successful grievor in such a case for which reasons are obvious.
While this Board finds that it has jurisdiction to hear the grievance as it relates to an allegedly flawed competition, the grievor should be aware of the general policy of the Board as it relates to remedy for flawed competitions.
The preliminary objection of the employer is therefore are dismissed.
DATED AT KINGSTON THIS 25TH DAY OF MAY, 1990.