P/0015/92
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
D. Burt
Grievor
- and -
The Crown in Right of Ontario (Ministry of Correctional Services)
Employer
BEFORE
J.A. Willes D. Leighton
Panel Chair Member
FOR THE GRIEVOR
D. Burt
FOR THE EMPLOYER
J. Benedict Manager, Staff Relations & Compensation Ministry of Correctional Services
HEARING
April 19, 1993
Decision
The grievance in this matter arose out of a job posting for the position of Discharge Planner at the Elgin-Middlesex Detention Centre, an institution under the control and direction of the Ministry of Correctional Services, and located at London, Ontario. The Grievor, Dennis Burt, at the time of filing this grievance, and at all material times, was employed in the classified service in a management position at the Elgin-Middlesex Detention Centre.
On June 15, 1992, the Grievor filed a grievance in which he alleged that he had been denied an interview for the position of Discharge Planner, a bargaining unit position at the institution. The grievance reads in part as follows:
“I, Dennis Burt of London in the Province of Ontario, hereby grieve:
That I was denied an interview for the position of Discharge Planner, Competition #CI-4017-92, at the Elgin-Middlesex Detention Centre in London, posted on February 27, 1992.
I was discriminated against because of my management position, contrary to the governments stated philosophy to treat all staff fairly and equally.
That I was denied an interview for the said position after fulfilling all of the qualifications set out in the Opportunity Bulletin.
That the pre-screening selection was set up for certain individuals rather than meeting the qualifications set out in the Opportunity Bulletin.
I hereby request the following:
That I am given an interview for the Discharge Planner position, Competition #CI-4017-92, posted at the Elgin-Middlesex Detention Centre in London, February 27, 1992.
That I work in such a like capacity as that of the position of the Discharge Planner, at the Elgin-Middlesex Detention Centre, London, Ontario, with the hours of 0800-1545 daily, Monday to Friday and with like wages and benefits of the Discharge Planner’s position.
The Pre-Screening Criteria should be posted in the Opportunity Bulletin, reflecting the qualifications, requested.
Costs – All costs incurred with relation to this grievance.”
The grievance was denied by the Employer, and the matter came on for hearing before this Board on January 18, 1993. At the hearing, the Employer raised a preliminary objection as to the jurisdiction of this Board to hear the grievance on its merits. Very briefly, the objection was that the Grievor was a management employee, and as such, was not entitled to apply for a bargaining unit position. The Employer further submitted that the job posting process and any grievance related to the process was a collective bargaining matter and fell within the jurisdiction of the Grievance Settlement Board.
This Board issued an interim decision dated April 6, 1993, concerning the Employer’s preliminary objection, a copy of which is hereto annexed. In that decision the Board determined that the Grievor had the right to apply for a bargaining unit position, and was prepared to hear further evidence and argument on this narrow issue.
The hearing continued on April 19, 1993, at which time the Employer conceded that as a management employee, the Griever had a right to apply for a bargaining unit position. The Employer, nevertheless submitted that the Public Service Grievance Board lacked jurisdiction to hear a grievance from a management employee related to the job posting process or the selection of the candidate for a bargaining unit position.
The Grievor acknowledged that his application for the bargaining unit position had been received by the Employer, but submitted that his qualifications had not been properly assessed or considered by the Employer in the selection of candidates for interview.
The evidence placed before Board clearly established that the Grievor’s application for the bargaining unit position was considered by the Employer. The balance of the Grievor’s evidence concerned the selection process and the consideration of his qualifications by the selection panel, but no evidence was placed before this Board to establish bad faith on the part of the selection panel in either the receipt of Grievor’s application or the consideration of his qualifications.
This Board's jurisdiction in this grievance is limited to actions of the Employer that may affect the Grievor's terms of employment and working conditions. In our interim decision of April 6, 1993, this Panel determined that the scope of its authority was limited to those matters related to the Grievor’s right to apply for a bargaining unit position, and the obligation on the part of the Employer to accept the application in good faith for consideration along with other applicants. This Board in our view has no authority to enquire into the assessment of the applicants by the Employer nor the jurisdiction to deal with any dispute concerning the job posting process or the selection of candidates for the bargaining unit position. These activities would appear to be matters that fall within the collective agreement, and the jurisdiction of the Grievance Settlement Board.
Since the evidence presented to this Board indicates that the Grievor was not denied the opportunity to apply for the bargaining unit position, and that the Grievor’s application was considered by the Employer, this Board has no authority to further deal with the grievance.
The grievance is therefore dismissed.
DATED AT KINGSTON THIS 17th DAY OF MAY, 1993.