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HomeMy WebLinkAbout1987-1940.Maloney.88-07-04EMPLOY.3 GELA CO”RONNE DE“ONTARID CQMMISSION DE SElTLEMENT REGLEMENT DES GRIEFS Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (R. Maloney) and The Crown in Right of Ontario (Ministry of Correctional Services) J.H. Devlin Vice-Chairman T. Traves Member W. Lobraico Member For the Grievor: R. Nelson Counsel Gowling and Henderson Barristers and Solicitors . . For the Employer: J.F. Benedict Manager, Staff Relations Ministry of Correctional Services Grievor Employer Bearing: April 22, 1988 DECISION The grievance which was filed by Robert Maloney involves the claim that he was improperly denied the right to participate in a promotional competition. The position sought by the Grievor was that of Correctional Officer 3 or Senior Shift Officer, as it is more commonly known, at the Eurtch Correctional Centre for which a vacancy was posted in .the summer of 1987. The Grievor is a Correctional Officer 2 at the Centre and at the time of the posting, he had been performing the duties of a Senior Shift Officer on an acting basis for approximately four months. The Grievor was advised that his application for the posted vacancy was being rejected as he did not have a satisfactory attendance record. In particular, in the year and one-half prior to the posting, the Grievor was absent for more than 13 days on more than eight occasions. There is no dispute that prior to 1987, the Grievor experienced some difficulty with his left knee, as a result of which he had two operations. The first operation, which took place in 1985, was designed to correct the position of the knee but was not entirely successful. Although the Grievor returned to work following the operation, he continued to experience pain and had difficulty walking as a result of which he was absent from work from time to time. The Grievor's second operation took place in the fall of 1986 and at that time, an artifical knee was implanted. The Grievor testified that this ,second operation was successful and, following a period of recuperation, he returned to work in February of 1987. Shortly 2 thereafter, the Grievor injured his back in an accident and was absent for a brief period. The Grievor testified, however, that from early March of-1987 to the date of the posting, he was not absent from work and he suffered no pain or difficulty with his knee. The posting for the position of Senior Shift Officer is dated July 13, 1987 and among the qualification criteria is the requirement for "satisfactory work performance and attendance". Michael O'Byrne, the Deputy Superintendent at the Burtch Correctional Centre testified that attendance is particularly important in the position in question. The Burtch Correctional Centre is a medium security facility which houses 252 adult male offenders in 5 dormitories and employs approximately 85 Correctional Officers. The Senior Shift Supervisor is responsible for manning the institution's control office, the radio communication system, the main gate'and also performs certain duties in relation to inmate traffic. Mr. O'Bry~ne testified that the control office is staffed-24 hours per ~day and in the event of absence, a replacement must be obtained which may necessitate the payment of over-time. Evidence concerning the selection process used by the Employer for the job competition in issue was given by Brian ROSS, an Area Personnel Administrator with the Ministry. Mr. Ross testified that there were 15 applicants for the position of . 3 Senior Shift Off icer and as it was not pract who applied, the Employer found it necessary .ical to interview all to develop a screening mechanism. In this case, that mechanism consisted of the application of a formula based upon the average attendance of Correctional Officers at the Burtch Correction Centre in the period from January 1, 1986 to July 31, 1987. During this period, the average rate of absenteeism was 13 days on eight occasions. Mr. Ross explained that days of absence were measured in eight hour periods and that one occasion involved one unbroken period of absence. Applicants for the position of Senior Shift Officer who exceeded the average rate of absenteeism both in terms of the number of days of absence and the number of occasions of absence were advised that their applications would not be considered by the Employer. Mr. Ross prepared attendance summaries for all applicants for the position and the summary of the Grievor’s attendance record indicates that he was absent for 104 l/4 days on ten occasions in 1986 and 28.5 days on two occasions in 1987. As he exceeded the institutional average referred to above, Mr. Ross testified that the Grievor's application was rejected and that he was not permitted to proceed to the next step of the process which involved a written examination. At the time this decision was made, Mr. Ross acknowledged that he was aware that the Grievor had been performing the duties of Senior Shift Officer on an acting basis for a number of months and, in addition, that much of the Grievor's past absenteeism was caused .‘ 4 by the problems he had experienced with his knee. Mr. ROSS also agreed that in the material provided to him in connection with the.Grievor's application was a letter dated July 24, 1987 from Mr. Moclair, the Superintendent of the Burtch Correctional Centre. The letter indicates that the Grievor's use of leave credits related primarily to his absence for knee surgery and that the Grievor's condition had stabilized. Despite this letter, Mr. Ross did not inquire as to the Grievor's prognosis and acknowledged that the fact that the Grievor's attendance exceeded the institutional average was the sole basis upon which he was excluded from the competition. It was the submission of Mr. Benedict, on behalf of the Employer, that attendance is a legitimate matter to be considered by the Employer in assessing the qualifications of applicants for posted vacancies. Mr. Benedict contended that, in this case, it was not practical to interview all applicants for the position of Senior Shift Officer nor was their any requirement to do so: OPSEU (Walter Borecki) and The Crown in Right of Ontario (Ministry of Natural Resources) GSB File #256/82 and OPSEU (Frank Balics) and The~.'Crown in Right of Ontario (Ministry of the Environment) GSB File #42/84. Mr. Benedict further submitted that average attendance at the Burtch Correctional Centre over an appropriate period was a suitable screening mechanism and was applied to all applicants without exception. The Employer also fairly took account of both the number of days and the number of occasions of absence. Finally, 5 Mr. Benedict suggested that the Grievor did not adequately account for all occasions of absence and that he did not produce any medical evidence to substantiate his statement that the problem with his knee, which accounted for much of his absenteeism in the past, had been rectified. In support of the Employer's position, Mr. Benedict also referred to OLBEU (A. Glysinskie) and The Crown in Richt of Ontario (Liquor Control Board of Ontario) GSB File #42/81 and #107/81 and OPSEU (Barry E. Riddock) and The Crown in Riqht of Ontario (Ministry of Correctional Services) GSB File #592/83. In the result, Mr. Benedict requested that we find that Mr. Maloney failed to meet the selection criteria established by the Employer and that, for this reason, the Employer was not obliged to consider his application. Mr. Nelson, on behalf of the Grievor, did not dispute that attendance -is a relevant factor in assessing the qualifications of employees for posted positions but disputed the basis upon which this factor was applied in this case. Mr~. Nelson contended that the Employer's refusal to consider the _. Grievor's application was arbitrary and unreasonable and that by the time of the job posting in July of 1987, the Grievor no longer suffered from the condition which had accounted for most of his absenteeism in the past. This, it was submitted, was substantiated by the letter from Mr. Moclair and, as a result, Mr. Nelson suggested that it could not be inferred from the Grievor's past record that he would be unable to attend work : 6 regularly in the future. In these circumstances, Mr. Nelson requested that we find that the Grievor's application for the position of Senior Shift Officer was improperly rejected by the Employer and direct the Employer to allow the Grievor to complete the application process. As conceded by Mr. Nelson in this case, there is jurisprudence of this Board as well as numerous authorities in the private sector to the effect that the Employer is entitled to consider attendance in assessing the qualifications of job applicants. In the Board's view, however, this cannot be accomplished by using an attendance formula as was done in this case. Firstly, attendance must be considered in relation to the job for which the vacancy occurs. In some cases, it may be that an employee's attendance record prior to the posting will demonstrate a pattern of absenteeism from which it can be inferred that it is unlikely that the employee will be in a position to provide regular attendance in the future. In other cases,'however, past absenteeism will not be an accurate reflection of the employee's prospects for future attendance as . . where a particular illness or disability has been successfully treated. Standing alone, therefore, past absenteeism is not conclusive of the likelihood of regular attendance in the future. Secondly, by applying a formula as the Employer did 'in this case, the ability of an applicant,to obtain an interview may depend entirely upon the level of health of his fellow I . r -i : 7 employees in the period in which average attendance is considered. Given the variations in rates of absenteeism, an employee may also be eligible for an interview at one point in time and not in another, although there may have been no change in his individual attendance record. Further, as acknowledged by Mr. Ross, had the Grievor been absent for a total of 132 days on one occasion, he would have been provided with an opportunity to take the written examination. Had another applicant been absent for a total of 14 days on 9 occasions, he would no longer have been considered for the position. This, however, would not appear to serve the Employer's interest in ensuring that the successful applicant for the position of Senior Shift Officer is able to attend work on a regular basis. As indicated previously, there was some suggestion by the Employer that Mr. Maloney did not adequately account for every day of absence in the one and one-half years prior to the job posting and that he did not, by way of medical evidence, demonstrate that he no longer suffers from the disability which caused his earlier absenteeism. It is apparent, however, that -_ the Employer rejected the Grievor's application because he did not satisfy the attendance criteria established and the Employer cannot now rely upon another basis to justify its decision. In fact, the evidence suggests that the Grievor's disability has been successfully treated and that his prospects for future attendance are good. In any event, if the Employer required further information from ,the Grievor concerning his past 8 absenteeism or with respect to his prognosis, that information ought to have been sought and assessed prior to the Grievor's application being rejected. As pointed out by Mr. Benedict, there is authority for the proposition that an employer need not interview all applicants for a posted vacancy. If an application is to be rejected, however, this must be done on the basis of a proper assessment of the employee's qualifications. In this case, the Employer screened applicants solely by reference to average attendance at Burtch Correctional Centre in the period of approximately 18 months prior to the posting. For the reasons set out, we do not find the application of such a formula to be an appropriate screening mechanism. In the result, we find that the Employer improperly rejected the Grievor's application for the position in question and we direct the Employer to allow the Grievor to complete the application process which is the remedy sought by the Union. The Board shall remain seized for purposes of implementation of this award and ultimately to hear the merits of Mr. ~Maloney's grievance in the event that this becomes necessary. DATED AT TORONTO this 4th day of July ;- 1988 ,,--5' . . .~ \ i '(,. ; -LA-ii,--- -w--w' ---- i --em ~J.H. Devlin Y Vice-Chairman _ &iJzsa- ----------------------- T. Traves - Member /h!i& 4y -------__-----___---___ W.A. .Lobraico - Member