P/0004/01

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

R. Ihasz

Grievor

• and -

The Crown in Right of Ontario (Ministry of Finance)

Employer

BEFORE

Henry Maeots Vice-Chair

FOR THE GRIEVOR

Cindy Ihasz

FOR THE EMPLOYER

Karin Rasmussen Counsel Legal Services Branch Management Board Secretariat

HEARING

October 4, 2001.

Decision on Preliminary Objection

This proceeding relates to a grievance of Mr. Ihasz dated April 30, 2001. Mr. Ihasz was unsuccessful in his candidacy in a posted job competition for the position of Tax Compliance Manager in March, 2000.

Mr. Ihasz was a bargaining unit member at the time of the competition, whereas the posted position was a non-bargaining unit one.

The successful candidate vacated the position after a few months and the position was posted again in the fall of 2000, at which time Mr. Ihasz occupied a non-bargaining unit position.

Mr. Ihasz contends that although he had not applied for the second posting, the position should have been offered to him. He believes that he was the third rated candidate at the time of the first posting. It is his understanding that the position was offered without posting to the second rated candidate when the first rated candidate vacated it. Further, he contends that when such second rated candidate declined the position, as an extension of the process that the Employer had commenced, he should have been offered the position rather than having it reposted. He also contends that the original competition was flawed in that it contained scenarios which caused him pain and indignity. Also, he alleges the Employer has violated its policy of Workplace Discrimination & Harassment Prevention.

The Hearing date of October 4, 2001 was taken up with submissions of the parties relating to preliminary issues and settlement discussions.

As the settlement discussions did not result in a resolution of the grievance, the board will herein address the preliminary issues.

The Employer raised a number of preliminary objections to the Board hearing the grievance on its merits.

Jurisdiction of the PSGB

The employer argued that the issues in contention arose at a time when the grievor was a bargaining unit member and as such he does not have recourse to this Board. Further, the employer argued that had the Grievor had access to the grievance process for management employees, the Employer has the management right to re-run competitions and as such right is not a term or condition of employment, it would not be arbitrable before this Board.

Timeliness

The time limits are determined by the process under which the Grievor can properly grieve and as such are dependent on a ruling on the issue of authority. At any rate, the Employer alleges that time limits have been substantially breached without good cause and that the Employer has thereby been prejudiced in preparing its response.

The Grievor’s representative, while acknowledging a breach of the management employees’ grievance process, gave an extensive explanation of Mr. Ihasz’s reasoning in not pursuing the matters at hand earlier, including his involvement in other proceedings which relate to some of the same events giving rise to this grievance.

Procedure

The Employer contends that even if the Grievor had access to the grievance procedure for non-bargaining unit employees, he failed to adhere to it in a number of respects. Again, the grieving party acknowledged technical violations of the prescribed procedure with explanations.

Disclosure

The Grievor sought disclosure of certain material facts which the employer objected to as being without relevance unless and until the Grievor particularized his allegations. The Grievor at first claimed his grievance was limited to the failure of the employer to offer him the position prior to the second posting, at a time when he was outside of the bargaining unit. Later, however, he expanded his grounds to encompass the format of the original competition.

As all other preliminary issues hinge on a ruling on the issue of arbitrability before this Board, the hearing was suspended pending that decision.

Both parties made reference to a number of earlier cases to assist the Board on the above matters.

It is the decision of this Board that although the grievance relates to matters extending over a period of approximately one year, it essentially regards one process commenced by the posted job competition of March 2000, a time at which the grievor was excluded from recourse under the Public Service Act and hence this Board.

The Board therefore orders that this grievance be dismissed.

Dated at Toronto, this 12^th day of October, 2001.