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HomeMy WebLinkAbout1987-2250.Giasson.88-11-07L.. , !.:: . . .. DNTARLO EMPLOYtSDEL.4 CO”RONNE CROWN EMPLOYEES ! GRIEVANCE OEL’ONTARIO COMMISSION DE mLEMENT RkGLEMENT RD DES GRIEFS IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN: Before: For the Grievor: For the Employer: HEARINGS: BEFORE THE GRIEVANCE SETTLEMENT BOARD OPSEU (G..GIASSON) - and - THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF LABOUR) F: V. Watters Vice-Chairperson Klym Member M. O'Toole Member L. Rothstein D. Wright Counsel Gowling & Henderson Barristers and Solicitors V. Malpass Staff Relations Branch Human Resources Secretariat July 7, 1988 July 8, 1988 GRIEVOR EMPLOYER DECISION This proceeding arose as a consequence of the grievor being denied an’ interview for the posted position of Construction Safety Officer in the Sudbury office of the Construction Health and Safety Branch of the Ministry of Labour. The posting in question stated that fluency in French was essential. The ‘L. grievor was denied the opportunity for an interview as he did not possess such ability. This decision was subsequently grieved and came before a different panel of this board on March 25, 1988. At the commencement of that hearing, counsel for the employer as to arbitrability. The argument raised a preliminary objection presented with respect to this which was chaired by J. B. Dev issue was rejected by the panel, lin, in a written decision dated May 20, 1988. In dismissing the employer’s objection the board stated: . ..* the board has jurisdiction to determine whether fluency in French which was required for the vacancy in the position of Construction Safety Officer vhich arose in Sudbury in the summer of 1987 was reasonably related to the job to be performed.” (Page seven). The panel of the board, as presently constituted, heard evidence and argument on this question on July 7th and 8th, 1988. ./ ‘,’ 1%: :~. ::;, t... ~?. .~ I, Claude Nadon. the successful applicant for the position, was in attendance at the hearing and was advised of his right to fully participate in the proceedings. His participation, however, was limited to a brief statement at the conclusion of the case. The grievor was the sole witness called by the union. The material part of his evidence may be stated as follows: (1) From 1971 to the present date, he has been employed as a Health and Safety Inspector in the Mining Health and Safety Branch of the Ministry of Labour. This position has the same classification as the Construction Safety Officer. Both are classified as ‘Occupational Health and Safety Inspector 2’. The move, therefore, would have resulted in a lateral transfer, had he been successful in the competition. For a substantial portion of his period of employment, the grievor has worked out of the Sudbury office. Indeed, this facility .houses both the Construction Health and Safety and the Mining Health and Safety Branchs. (2) The grievor’s position requires that he enforce the Occupational Health and Safety Act, and the regulations enacted pursuant thereto, as they pertain to the mining industry. In his estimation, the experience gained the.refrom would be readily transferable to the job applied for. Additionally, he stated that he has been required to enforce the construction regulations in respect of construction projects on mining property. The grievor further testified that he had performed as a Construction Safety Officer for a short period in the summer of 1985. On the basis of this past experience, he believed that he could perform the job sought. (3) The grievor conceded that he only speaks English and that he has no proficiency in French. He asserted, however, that this had not adversely affected his . performance in the mining sector. It was his opinion that such sector had a higher proportion of francophones in comparison to the construction sector. The grievor also testified that he has never encountered a problem vis a vis the need to communicate in French during the eleven year period of employment with the Ministry of Labour, including his brief stint in the construction branch referred to -2- above. In his evidence, he stated that English.is the language used on project sites in both sectors. He also expressed the opinion that the Construction Safety Officers of the Sudbury office did not use French 8s part of the exercise of their daily responsibilities. This view was premised on his informal discussions vith such officers and on the fact that he cou,ld not recollect the subject of French language having ever been a topic for discussion at any Employee Relations Committee meeting he may have attended in his capacity as a union steward. (4) Lastly, the grievor noted that other positions in the Sudbury area had not been designated as bilingual. Specifically, he stated that two subsequent positions in the Mining Branch of the Flinistry did not require fluency in French. Similarly, the position of Occupational Health and Safety Advisor, for which he applied in mid-1987, did not require such fluency. It was the grievor’s opinion that there was a greater need for French language skills in these pOSitiOns. He therefore questioned why the requirement had been incorporated into the posting for the Construction Safety Officer job. In summary, he did not believe that this requirement was reasonably related to the position and the duties to be performed therein. Mr. William 0, vens, the Usnager ,of the Construction Health and Safety Branch in Sudbury, was the sole vitness called by the employer. His evi, dence may be stated as follows: L.. (1) He has occupied his present position with the Ministry for approximately six and one-half years. Prior to becoming Nanager, he had served as a Construction Safety Office for a period of seven years. (2) Mr. Owens assigns and coordinates the vork of seven Construction Safety Officers throughout seven geOgraph- ical areas in Northern Ontario. These areas or districts are: Algoma, Wanitoulin, Sudbury, Parry Sound, Nipissing, Timiskaming and Cochrane. Three officers are located in Sudbury, two in Sault Ste. Marie, and one in each of North Bay and Timmins. Work is distributed to these officers according to vhere it is to be performed. Specifically, they are involved in inspections, investigations, prosecutions, inquests and other vork, all of which is related to the enforcement of the Occupational Health and Safety Act. (3) Up until June, 1985, Mr. Owens had tvo bilingual officers on staff vho could be called upon to deliver services in (.~ (4) (5) (. French when required. With the retirement of a Hr. Paul Dubois from the Timmins office in that month, he was left with only one officer who was fluent in French. This was Mr. Raymond Boivin who worked out of the Sudbury office. Generally, the officers in that office were assigned projects on a rotating basis in the Sudbury, Manitoulin and vest half of the Perry Sound districts. Prom time to time, however. Ur. Boivin vould be aseigned to work outside of these areas vhen.a request was made for the delivery of services in the French language. While evidence was adduced in respect of only-one specific assignment to Kapuskasing, Mr. Ovens testified that this particular employee used his French language skills in the performance of his duties over a substantial period of time. Indeed, ae noted, all requests for services in French were directed to Mr. Boivin after June, 1985. The vacancy in question arose in June, 1987 vhen Mr. Boivin left regular employment and went on long-term disability benefits. It was at about that time that a decision was made to insert the French language require- ment into the job posting for the position. It is apparent that this was the first occasion where fluency in French was deemed as essential for the position. WI-. Ovens testified that he and Mr. T. Aki, Regional Manager, were “consul ted” as to the requirements for the position. He recollected specifically having,hed a telephone conversation with Mr. Aki in which he communicated his opinion that a bilingual person should be recruited given the past capability to deliver services in French and in view of the demographics of the region. At the time of this conversation, Hr. Ovens was also aware of the enactment of the French Language Services Act, 1986 and that five of the seven districts under his management were designated pursuant thereto. He stated that this legislative initiative was considered in the making of his recommendation that French should be required. At the time Hr. Ovens spoke to Hr. Aki, he was of the mistaken belief that francophones could require French services in the Sudbury area. He was not aware that the‘regulations necessary for the effective implementation of the legislation had not been passed. He was also unfamiliar with the specifics of the process for designation of positions as bilingual set out in the implementation manual prepared by the Office of Francophone Affairs. It was Mr. Owens’ assess- ment that this incomplete understanding of the Act ~88 immaterial in that the need to deliver servicesin the French language existed independently of the legislative requirement. His fourteen years experience “in the field” had convinced him of the demand for French services in the areas under his administration. While he appeared to concede that having only one bilingual person for the entire region might be somewhat inefficient, Mr. Ovens expressed the opinion that at this point in time “it is a practical necessity” in that it is the only way in which he can deliver the needed service. (6) Mr. Ovens candidly admitted that he did not make the final decision in regards to the French language requirement. Indeed, he could not provide the name of the ultimate decision maker nor could he be certain 88 to the grounds on which the decision was taken. His knowledge was limited to the information and opinion he had communicated to Mr. Aki in their telephone conversation referred to above. It was the position of the union that the employer had not established, to the degree necessary, that the French language requirement was reasonably related to the job to be performed. In support of this argument, it va8 noted that two of the three areas covered by the Sudbury staff, these being Parry Sound and Manitoulin, are not designated in the Schedule appended to the French Language Services Act. It was further argued that census data from 1981 reflected a greater population of francophones in other areas of Northern Ontario within Hr. Ovens’ mandate. For example, the Cochrane area is forty eight percent (48%) francophone in comparison to thirty five and eight tenths percent (35.8%) in the Sudbury district and twenty nine and six tenths percent (29.6%) in the Regional Municipality of Sudbury. The union emphasized that the position in question had not previously required fluency in French and that the evidence of Hr. Boivin’s use of the language was not extensive or detailed. It ~8s also submitted that the employer should have adduced more specific evidence a8 to how and why the decision was made in this instance and vhy a similar initiative had not been taken in other 8reas having a greater francophone population. Counsel further argued that to the extent the French Languages Services Act ~88 relied on, such reliance was miepleced in assessing the need for the delivery of services in French. It was noted in this regard that the rights provided for by section five of the legislation have not crystalieed in that the necessary regulations have not been enacted. The union therefore submitted that the employer erred if it determined need on the basis of a mistaken opinion a8 to the level of their obligations under the legislation. The union further alleged that the imposition of the French language requirement had a discriminatory effect which could result in a contravention of The Human Rights Code, 1981, as amended. Specifically, counsel argued that the requirement could adversely impact those within the British ethnic group. Data from the 1981 census was relied on to illustrate that such requirement created a significant advantage to those of French origin. Given this potential for prejudice, the union submitted that the employer must establish, on clear and convincing evidence, that the requirement ~8s imposed in good faith and that such was reasonably related to the job. Indeed, it was suggested that once a prima facie case of discrimination had been made, the legal onus would shift to the employer to justify its action. It was lastly argued that this hoard had the jurisdiction and duty to interpret and apply The Human Rights Code to a case of this type. The following authorities were relied on in support of this submission: -6- Re Singh srrd The Crown In Right of Oatario (Ministry of Correctional Services), 27 L.A.C.. (2d) 295 (M. Eberte, November 1980); Cousens v. The Canadian Nurses Association, Canadian Bumen Rights Reporter, Volume 2, Decision 78, Paragraphs 3251-3325; Re Ontario Euman Rights Commission et al. V. Borough of Etobicoke, 132 D.L.R. (3d) 14 (S.C.C.). Re Ontario lfumen Rights Commission et al. v. Simpson Seers Ltd., 23 D.L.R. (Ath) 321 (S.C.C.). On the basis of the above argument, the board was asked to order a rerun of the competition. Such would require a fresh : posting with the French language requirement omitted. This would ensure, in the union’s submission, that those persons, who were initially disinclined to apply because of the restriction, would have the opportunity to demonstrate their ability and qualifications for the job of Construction Safety Officer. L In response, the employer submitted that management may establish the qualifications required for a particular job as long as it does so in good faith and the requirements are reasonably related to the job to be performed. It was argued that in this instance there was no evidence presented as to the existence of bad faith, and that the evidence led before the board demonstrated that the requirement was both reasonable and needed. We were urged to accept the evidence of Hr. Owens as’to the need for.8 bilingual officer subsequent to the departure of nr. Boivin in June, 1987. Counsel submitted that Mr. Owens was the best person to assess the everyday requirements of the position, in that he could testify from actual experience. It ~88 suggested that the described need ~8s not premisqd on the French Language Services Act. Reliance was placed on the -7- testimony of Mr. Ovens to the effect that French language capacity was required because of the nature of the position and the demographics of the region. Simply put, the argument presented was that the need existed without regard to the statute. It was therefore of no consequence that the ultimate decision maker may have relied on it when electing to incorporate the requirement into the job posting. Lastly, it was argued that the grievor’s opinions as to the greater need for French in the mining sector and his evidence as to other postings were not helpful to the resolution of this case. With respect to the former, the opinions were unsupported by any reliable data and were simply subjective judgments. With respect to the latter, it was submitted that evidence of practice in regards to other positions was irrelevant to the particular posting under consideration. The employer also took the position that the imposition of the French language requirement did not contravene The Human Rights Code, in that language is not a prohibited ground as contained therein. Further, it was argued that there was no definite correlation between ethnic origin and ability to speak a specific language,. The major thrust of the employer’s argument, hooever, was that there was no provision in the collective agreement restricting their right to require 8 given language skill. It was’submitted, therefore, that this board did not have the jurisdiction to interpret and apply the .Code. OPSEU (P. Shipley) and Ministry, of Correctional Services, G.S.B. 0223186 i’ (Samuels) and OPSEU (B. Noah). and Hinistry of Community and Social Services, G.S.B. 767185 (Draper) were relied on in support Of this submission. -B- The issue before this board is whether the French language requirement inserted into the posting for the position of Construction Safety Officer in the Sudbury office was reasonably related to the job to be performed. After considering all of the evidence and argument presented at the hearing, our conclusion is that we must answer this question in the affirmative. While the ultimate decision maker was not called as a witness, we find that Ur. Owens was best positioned to address the actual requirements of the job. In this regard, the board accepts his evidence that he previously had the capacity to deliver.French services through two bilingual officers and that this ability was lost in June of 1987. While the evidence as to the number of instances in which l4r. Boivin used his language skills in the performance of his job was not extensive, we have no reason to doubt Mr. Ovens’ assertion that he utilised this employee for the delivery of French services over a considerable period of time. Given the demographics of the region under Hr. Ovens’ management, as disclosed by the census data provided to us, we think it more likely than not that the call for such services “8s more than just an isolated occurrence. In light of his past experience, the board finds it understandable why Hr. Owens vould want to retain one bilingual officerrin the Sudbury complement. Hare importantly, we have been persuaded that this prior practice establishes that the restriction in question w8s “reasonably related” to the job to be performed. We wish to make clear, -9- however, that our comments in this regard are limited to the sole position posted. The evidence adduced is insufficient to permit us to state vith any certainty vhether there is a need for more than one bilingual officer in the Sudbury office. The board can only speculate as to the effect that the French Language Services Act had on the decision to attach the contested requirement to the posting. As noted, the final decision maker was not called to give evidence. ‘Both k!r. Ovens c..:. and Hr. Aki were swsre of the legislation and the impact that it could have on their daily operations. The former sppesrs to have been under the mistaken impression that the legislation was in full effect in June, 1987. Notwithstanding this fact, our assessment of his testimony is that his conclusions as to the need for the requirement were based primarily on his past experience with the position. While Mr. Aki received l4r. Owens’ recommendation together with reasons, we cannot state with any certainty that these reasons by themselves dictated the final decision. It is likely that the existence of the legislation wss factored into such decision. We note in this regard that the employer, in responding to the grievance at Step One, referred in a general way to the rights created therein. The board does not, hovever, find this to be material. In our judgment, the need for a bilingual officer in the Sudbury office predated the legislation. It is apparent that the French Language Services Act did not creste the need, although it rosy serve to magnify it - in future. Indeed, Hr. Ovens testified thst such sn officer would have been required without even considering the impact of -lO- this legisletive initiative. We 8re inclined to agree vith his assessment on the basis of the evidence presented. In summary, we have looked to the position rather than to the Act in reaching - our conclusion that the restriction was reasonably related to the tasks to be performed.. In the context of the particular case before us, we do not think that much weight should be accorded to the employer’s decision vis a vis. other postings in the area. In our opinion, the employer may establish the qualifications required for a job pursuant to its management rights which, in this case, are reserved by section 18(l) of The Crown Employees Collective Bargaining Act, R.S.O. 1980, Chapter 108 ss amended. We concur with the stsndard of.review as articulated in Re Reynolds Aluminum Co. Canada Ltd. and Internstionsl Welders and Allied Workers Union, Local 28, 5 L.A.C. (2d) 251 (S. A. Schiff, February, 1974) st page 254: “In the ordinary exercise of management functions employers may determine in the first instance what specific qualifications are necessary for 8 particular job and what relative weight should be given to each of the chosen qualifications. After an employer has made the determination, arbitrators should honour the msnagerisl decisions except in one or both of two circumstences: First, the employer in bad faith manipulated the purported job qualifications in order to subvert the just claims of employees for job advancement under the terms of the collective agreement.... Secondly, whether or not the employer had acted in good faith, the chosen qualifications bear no reasonable relation to the vork to be done.” In this instance, we csn find no evidence of bad fsith on the part of the employer.’ Additionally, we have concluded that the requirement for fluency in French wss ressonsbly relsted to the -I l- job to be performed. The union, however, asks this bosrd to apply a further test, that is, does the restriction contravene the specific provisions of The Human Rights Code. It v** submitted that if a prima facie case of discrimination was established, the legal onus should shift to the employer to justify its actions.. While the submission msy be correct in the context of a human rights proceeding, we are disinclined to extend it to the present proceedings in which we can find no violation of the collective agreement. We sre of the view that alleged violations of the Code are more properly the subject matter of proceedings before the Ontario Human Rights Commission. We note in this regard the following comment found at page 4 of the Noah award previously cited: “The argument is made on behalf of the grievor that the employer is in violation of the Human Rights Code, 1981, in that the grievor has been denied equal trestment with respect to employment because of handicap o.f diabetes. The issue of the board’s jurisdiction to entertain that allegation is se bv the decision of the Supreme Court of Canada t i Board of Governors of ~Seneca College of Applied and Technology v. Bhadauria, 124 D.L.R. (3d) 19 finding of the court was that the Code estshlis exclusive procedures for the enforcement of its tled Ls The . es 7 h substantive provisions and so provides comprehensively for remedies for its breach.” the We slso note with interest that this approach was employed in the interim award in OPSEU (MacKenzie) end Ministry of Transportation and Communications, G.S.B. 1243187 (Ratushny), remsrkably similar to the one before this panel similarly concluded that they did not have juri which is a csse . The board there sdiction to desl -12- vith the grievance to the extent that it purported to allege a violation of The Human Rights Code. Counsel for the union i did not take iseue vith the Services Act or the principl n her argument stated that the union intent of the French Language e of bilingualism. Rather, the union’s concern vas to ensure, in the interests of its members, that moves taken by the employer to increase French language services were effected in a rational and judicious manner. Clearly, the employment prospects of union members with respect to promotions and transfers stand to be impeded if the employer can impose a French language requirement on vague or unsubstantiated data. While ve have not found this to be the case here, our task would have been made easier had the employer produced the ultimate decision maker. While this failure did not affect the result in this case, this should not be taken as an assurance that the same vi11 obtain in other cases. We *re ettracted’to the suggestion made by Chairman Shime in Consumers Glass Company Limited and Aluminum, Brick and Glass Workers, Local 269, (unreported, December, 1986) that “there is an onus on the employer to adduce evidence about those aspects of the matter which particularly lie within the employer’s competence and knowledge” (page 9). Given the union’s legitimate concern as to the effect the French Language Services Act may have on the bargaining unit, it should be accorded a fair opportunity to fully determine and assess the need to designate a position as bilingual. This is i i. ‘; .;, . 6~ !:,, : especially so in situations where French fluency has not previously been required. In cases vhere the dispute proceeds to arbitration, the union should be entitled to cross-examine those responsible for the decision to designate positions as bilingual. For all of the above reasons, the grievance is denied. DATED s.t Windsor, Ontario, this 7th day of November , 1988. (y?.j, &J G tiL& n. v. Wetters, Vice- Cnairperson “I dissent” (Dissent attached) P. hlym, idember -14- J. : ‘.... x.5. 2250/87 DISSENT Based on the evidence presented to the Board, I must respectfully dissent from the conclusions reached by the majority. When the employer designates a bilingual requirement on a job posting, where no such requirement previously existed, great care should be taken to properly explain and justify the reasons for such a decision. The evidence before the Board showed the following: i) ii) iii) iv) The position specification for Construction Safety Officer contains no bilingual requirement: There had never been a bilingual requirement on any previous job posting in this area for the Construction Safety Officer job; As late as June 1985, there was a job posting for a Construction Safety Officer in Timmins with no requirement for bilingual capability even though the Cochrane District is 48% francophone. I" fact, the person who was the successful applicant did not have French speaking ability; Two recent postings in 1987 for Safety Officers in the Mining Safety Branch in Sudbury did not carry a bilingual requirement. The above evidence together with other evidence adduced by the Union clearly established a prima face case regarding their claim. It was then incumbent upon the employer to explain by evidence to the Board why the bilingualism require- ment was introduced on this iob oostine. In following the reasoning of Chairman Shime in Consumers Gas Company Limited ,and Aluminum Brick and Glass Workers Local 269, "there is an onus on the employer to adduce evidence about those aspects of the matter which particularly lie within the employer's competence and knowledge". With respect to the conclusion reached by the majority, my finding is that the employer has completely failed to satisfy this onus. There is no evidence before this Board as to the actual reasons for adding the bilingualism require- ment. All we have before us is not evidence as to the reasons, but solely speculation. (‘..#. :;p; - 2 - Mr. Owen’s testimony is fairly summarized in the majority decision. In his evidence, Mr. Owen clearly and unequivocally stated that he did not make the decision in regards to the French language requirement, nor could he tell the Board who was the ultimate decision maker, nor did. he know the actual reason for the decision. Mr. Owen testified that he had no role in the posting for the Timmins vacancy in 1985, and could not comment why his opinion was requested prior to the subject posting and not in 1985. The majority gives great weight to Mr. Owen's opinion that'there was a need for French language capability even without the existence of the French Language Services Act. However, a careful review of this testimony reveals how sketchy his evidence was on this point. He could give only one instance where Mr. Boivin was required to give services in French. He had no evidence for us regarding the number of requests received for services in French or the frequency and locations that French services are required - in spite of his six and one-half years in this job. There may very well be a need as he suggests, but I believe that more sub- stantive evidence than that presented is required for us to be able to come to that conclusion. This Board has to make its decisions on evidence presented and not be placed in the position where we are asked to make a decision on little more than speculation. In any event, it is my position that the opinions expressed by Mr. Owen are not the governing factor in this case. He clearly stated he does not know the reasons for the decision to add this French speaking requirement. There- fore, his opinions are no more than simply opinions, and we are left with no evidence to explain why this requirement was actually added. The employer did not call as a witness the person or peisons who made the decision or who knew the actual reason for the decision. This is extremely troublesome for a Board seeking to adjudicate this sensitive issue. We were not advised of any problems with availability of witnesses or.other reasons why they were not called. In a situation where experienced counsel are representing a party and they do not produce their best witness or offer an explanation, I believe the Board is entitled to consider the impact of this failure to produce the evidence and to give it appropriate weight. In this case, the Union is particularly prejudiced because they did not even know who was the decision maker and they could not themselves subpoena him. -3- Without this critical evidence and with the limited value of Mr. Gwen's evidence, a review of the other evidence presented to the Board is required prior to a final determina- tion of the issue. There is a strong inference that the provisions of the French Language Services Act were a major role in the decision to add the bilingualism requirement. The employer's answer in Step 2 of the grievance procedure states in part: "I under- stand that Sudbury is an area designated'where French may be essential". (Exhibit 11) Mr. Owen testified that he and Mr. Aki discussed the coming into force of the French Language Services Act and that it was one factor which he considered in his recommendation. In addition, at the preliminary hearing (.: of this case on March 25, 1988, regarding the jurisdictional issue, the employer's counsel raised an argument relying upon the French Language Services Act, 1986, to justify the bona fides of the requirement for fluency in French for the Sudbury vacancy. If the r,eal reason for the requirement for French fluency was actually the French Language Services Act, then before it can be said that the bilingual requirement was reasonable for this particular posting, we would be justified in satisfying ourselves that the proper procedures as laid out by the Office for Francophone Affairs in its "French Language ,Services Act Implementation Procedure Manual" were carried out. This Pro- cedure Manual spells out a very detailed process for management to assess the service delivery needs and the staff required. There is a detailed procedure for doing an inventory of exist- ing staff and providing some language training to fully qualify those on existing staff with sufficient potential. Only after going through these steps is a job posted for staffing from outside. jT:;>~.. The apparent intent of the Act and this Procedures Manual is to use the three year period following the coming into force of the Act on November 18, 1986, to establish adequate French language capability for the services to be required in the desig- nated areas by November 1989 when they will be mandatory on demand. If this Act was a major factor in the decision to add a French fluency requirement to this job posting, then before we can say that French fluency was required on this specific posting, we must be satisfied that all the Procedures were followed. If the services required could be delivered by existing staff or by other means, then obviously, there would be no need for this French fluency requirement. If there was no French Language Services Act in effect, then perhaps we could decide this case on the subjective opinion of a manager's needs, provided he actually made the decision. But the Act and the associated procedures add a new dimension to the case. The Government has obviously seen the need to adopt detailed procedures to provide for an orderly implementation i. ./: c.’ r. ,’ - 4 - of the Act's requirements to minimize conflict and to provide some protection for the rights of existing employees. Is it then proper for management to claim they imposed a French fluency requirement on a job in a designated area for other reasons and that the French Language Services Act and its pro- cedures shoud not be considered, even though they are in full effect? How are we to differentiate and conclude that the Act had no bearing - particularly when we do not have such evidence presented to us. It does nobody any good if management is allowed to side- step the Act and the Procedures by claiming they made the posting bilingual for other reasons, and thus escape the bother of the details in the Procedures. This type of action borders on bad faith and should be strongly resisted by the Grievance Settlement Board. Indeed, a good argument can be made that with the French Language Services Act and the Procedures in place, no position should be designated as bilingual without first follow- ing these Procedures, regardless of the other reasons which may exist or have existed. I would comment briefly on the Human Rights argument pre- sented by the Union and its disposition by the majority. In this grievance, both the violation claimed and the remedy requested are well within the purview of the Collective Agreement and the Crown Employees Collective.Bargaining Act. On the question of reasonableness of the French fluency requirement, I believe we have a right and a duty to consider the Human Rights Act provisions to assist us in making this determination. JIf the requirement apparently violates the Human Rights 'Act., then it is appropriate for the Board to conclude that it would not pass a Collective Agreement test of reasonableness. Thee Collective Agreement itself would then allow a remedy to be fashioned. I do not believe this is inconsistent with the general content of the cases presented to us regarding the Human Rights issue. The Canadian Human Rights Reporter in Volume 2, Decision 78, concluded that the intent of the Ontario Human Rights Code is to prohibit effective discrimination on ancestry even 1 though the particular manifestation may be in language (see paragraphs 3286, 3289, 3290). AlSO, in paragraph 3294 it states that extensive and detailed language requirements often will be completely justifiable in the context of the position in question. In the Ontario Human Rights Commission et al V. Borough of Etobicoke case which involved a mandatory retirement age for fire-fighters, the Supreme Court of Canada ruled: "The onusfor proving that a mandatory retirement age lower than that prescribed by the Code is warranted is on the employer. The onus is not discharged by addressing impression- istic evidence to the effect that fire-fighting is a 'young man's game'. Although no fixed rule covering the nature and sufficiency of the evidence required can be laid down, in a case such as this statistical and medical evidence based upon observation and research on the question of aging would have been more persuasive." The information filed with the Board from the 1981 Census of Canada (Exhibit 8) shows that in Ontario, 71.1X of the French ethnic group has French speaking ability compared to only 5.4% of the British ethnic group. If we accept the decision of the Ontario Human Rights Commission that there is effective disc~rimination on the prohibited grounds of ancestry even though the particular manifestation may be in language, in our case we have a prima facie case of discrimination established. The onus for bringing forth proper evidence to show a justifiable language requirement in this particular job posting is on the employer. As stated earlier, the employer has not discharged this onus. Therefore, the arguments presented to us regarding the Human Rights Act serve further to lead to the conclusion that it has not been shown that the French fluency requirement was a reasonable condition on this posting. For the above reasons, I would find that the grievance should succeed and a re-run of the job posting should be held. I wish to add that I recognise and agree with the goals of the French Language Services Act and the need to provide services in French to the francophone population in the designa- ted areas. Because of the importance of providing these services in French, it is essential that the employer scrupulously follow the procedures laid out for the implementation of the Act to avoid unnecessary controversy and not to make decisions under the management prerogatives which cause existing employees to perceive unfair treatment for them. With the French Language Services Act in place, it does not bode well for smooth labour relations if the employer is allowed to decide when a bilingual requirement on a job posting is due to the French Language Services Act or to claim it is for some other reason and thus escape the laid down implementation procedures. Peter Klym.