City of Ottawa failed to post temporary job opening
The Amalgamated Transit Union local 1760 filed a grievance against the City of Ottawa after the employer failed to post a temporary vacancy.
As an administrative clerk, Grace Tsang was responsible for inputting information into the employer’s payroll computer system. In March 2014, she approached her manager to request leave for one month to travel. Management approved the leave and, in her absence, assigned her payroll duties to two other employees. The payroll duties occupied these employees for two to three working days each week during Tsang’s absence.
Neither employee received additional compensation during this time. The union was not notified of Tsang’s leave and was not involved in the process of reassigning her duties during her absence. According to the union, the parties’ collective agreement required the employer to circulate an email to other members of the bargaining unit to advise them of the vacancy and give them an opportunity to express their interest in temporarily performing those duties. The union filed a grievance on July 22, 2014.
The union argued any absence of more than 10 days constituted a vacancy under the collective agreement and, therefore, triggered the employer’s responsibility to notify the bargaining unit. The union further argued the position should have been posted as a temporary full-time position and the duties should not have been split between two employees. By way of remedy, the union requested a declaration that the employer was required to have posted notice of the vacancy as well as damages for the union.
Additionally, the union requested compensation for one of the employees filling in for Tsang, as the work she performed during Tsang’s absence was rated at a higher pay grade than her own position. But the need to treat every vacation absence of more than 10 days as a vacancy — as stipulated by a clause in the parties’ collective agreement — would seriously impair operations, the employer said.
Furthermore, the employer argued the collective agreement provided management with the sole discretion to determine and declare a vacancy. Additionally, the employer argued the union had no right to damages because it suffered no loss as a result of two employees taking over Tsang’s duties while she was on vacation.
Any monetary award would amount to a penalty, rather than compensation.
Arbitrator Paula Knopf agreed that an emptiness or absence from a position did not necessarily trigger a vacancy or the requirement to post. However, both parties agreed the duties of the time administration clerk continued to be performed throughout Tsang’s absence. Knopf ruled this constituted a temporary vacancy under the parties’ collective agreement.
Concerning the agreement’s requirements regarding temporary vacancies and potential for impairment of operations, “the requirement to send out a notice and wait two days for responses cannot be viewed as burdensome. This could potentially lead to a richer pool of applicants than might have been envisioned," said Knopf. "Therefore, it would seem to be advantageous to widen the pool by soliciting interest and choosing the best candidate."
While the union argued the employer had no right to split the duties of the vacant position during Tsang’s absence, nothing in the collective agreement imposed such a limit, Knopf ruled. She also declined to order compensation or damages. As a result, the grievance was upheld in part, with Knopf declaring the employer did not adhere to the minimal dictates of the collective agreement when it failed to notify the bargaining unit of the temporary vacancy.
Reference: City of Ottawa and the Amalgamated Transit Union local 1760. Paula Knopf — arbitrator. Steve McCardy for the employer, John McLuckie for the union. May 26, 2015.
