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HomeMy WebLinkAbout1987-2411.Sullivan.88-08-03_,, i c I’) ; i . . . . ONTAR, EMPLOYES Lx LA COURONNE i CROWN EMPLOIE.CS DEL’ONTARIO GRIEVANCE CQMMISSION DE REGLEMENT DES GRIEFS IN TRE.MA'JYlZR OF AN ARBITRATION Under THE CROWN EMPLOYEES C6LteCrIVE BARGAINING ACT Before THE GRIXVANCE SE'IYXEMENT BOARD Between: OPSEU (Roland Sullivan) -and- Grievor The Crown in the Right of Ontario (Ministry of Correctional. SerdCeS) Employer Before: D. Fraser Vice-Chairman I. Freedman Member W.~Lobraico Member For the Grievor: I. Roland Counsel Gowling and Henderson Barristers and Solicitors For the EmDloyer: 3. P. Sanderson, Q.C. '~3 Counsel Sanderson, Laing Barristers atid Solicitors Hearina: May 19th, 1988 DECISION - 2 - The grievor, Ronald E. Sullivan, xlaims that the Employer. the Ministry of Correctional Services, has discripinated against him in Competition #Cl-S,061 -87 in that he was the unsuccessful candidate for the position of Correctional Officer 2 at the Sudbury jail in the Northern Region of the Ministry. He requests that he be given the position and be made whole. At the time of the competition he was classified as a Correctional Officer 2 at the Mimic0 Correc- :. tional Centre, and he -is a full-time member of the bargaining unit. He accor- dingly mished to-‘transfer within his classification to the Sudbury Jail, and .: sought to do that by his application for the competition The successful applicant in the competition was Darcy Juhas. who at that time was a permanent part-time employee. He was an unclassified casual employee, who had been rated as a Correctional Officer 1 for pay.purposes. H.e has. been duly notified of this hearing and his rights with respect thereto, but chose .npt to attend. There were a total of eight further applicants for the competition, but they were all unclassified permanent part-time employees, and none’ were consequently full-time bargaining unit members. Counsel for the Employer has admitted at the opening of the hearing that ~. the competition was significantly flawed in its process. In consequence, the requirements of .~rticlo 4.3 of the collective agreement were not met. That article requires thacy ~. : - 2 - 3 - In view of this admission, the parties a,. -reed that the only issue before this board. is one of remedy, which involves two general questions. The first is whether we should award r.he position competed for CO the grievor. or whether the matter should be remitted back to the Employer for a determination. The swond question arises if the maccer is remitted back. What should the scope of the competition be, and char terms and conditions should be imposed on the process for rhe consequent determination? I Counsel for the Union has argued that, this is an appropriate situation for the board to a;vnrd the position to the -grievor. t!is position is. in brief. that there is no legitimate issue left to be determined by the Employer. and in such circumstances rhe jurisprudence of the board supports such an approach. Counsel for the Employer has essentially taken the position that where no . prior determination of relative qualifications and ability has been made ~by’the Employer, which is a consequence of the flaxTed process in the instant case. the board has in Ithe past elected to remit ‘.the .ma!:ter back to the Employer unless ._. exceptional or Iunusual circumstances exist. and should do so nou Should the board decide to remit the matter bacl;. both counsel agree that t~here should be no repostin, o of the competition, and rhey ar’e essentially in :i~:revmr!nr on a nt~rnh+~r of rondirionr rhat rh,: ho:ird should rc![llirc of such a - 4 - re-run. However, counsel for the Union has submitted that such a competition should be between the grievor and incumbent only. while counsel for the Employer has proposed that it should involve all of the original applicants who confirm their desire to be reconsidered, in order that the decision-making be compl.ete and proper. We will review these broad ijsues in order and in further detail. We will first d.etermine vihether this is an appropriate case Tao send back to the Employer for a re-run of the competition, or whether we should award the posi- tion directly to the grievor. If we determine that a re-run is appropriate, we will review the submissions on the sco!pe and process of the i-e-run in more detail, and will resolve the outstanding issues in’that area. The evidence came in either by opehin, 0 statements by counsel or agreed facts, which we have largely related already. and by documentary evidence which both counsel agreed constituted proof of the facts therein. The documentary evidence.included the grievance form; the posting of the competi- tion; the Position Specification for the position of Correctional Officer 2.at the Sudbury jail: the applications of ‘both the grievor and insumbent~ for the position i C~ .-;;.. ;~ ‘” .ir: the competit,ion and the ler.ters uf response from the Em?ployer to each. con- firming Mr. Juhas’ appointment and advising 111’. Sul;iv:%n. he. :$as Unsuccessful: and,.the personnel files of Mr. Sullivan and Xr. Juhas we will first review the board’s past jllrisp;udence in ligllt of the submis- sions of counsel on then first issue,. in order 1.0 set the context for our considextion of .the ei?idence. That jilrisprIld!!n!‘c has been thoroughly ; :. ,w .i. - 5 - canvassed by Vice-chairman Rrandt and his board members in the comparatively recent case of Alam 735/85. We will not repeat that review, but sill refer LO relevant portions of it. AS noted in the &&I case at p. 11, the Divisionai Court in R. v. Ontario Public Service Employees Union et al 35 O.R. (2d) 6iO. upheld an award of the board in Zubrycki (100/76) wherein the position in competition was awarded to the grievor wiih appropriate compensation. The Zubrycki award is also helpful in that makin, 0 such an award, a panel of the board chaired by ?.lr. Pritchard provided a caution in the exercise of such power. by saying: II arbitration boards must be sensitive to the limits of their institutional competence and to the advantages of relying on inter- nal processes for making promotidnal ~decisions. However, there will be cases in which sensible labour relations will require an externally imposed, final solution and. in our opinion, the before is. such a case.” In Zubrycki. an earlier panel of the board had determined that the grievor Kvas “at least equal in ability and qualifications to all of the other candidates” but had remitted the matter back to the parties to fashion an appropriate remedy whiie retaining jurisdiction On the failure of the parties to (10 so. tie board chaired by Sir. Pritchard awarded the job to the grievor %ith the caution noted. on the basis that “there had already been a favourable derermii;aIion on the rne.rits and that, having regard to the prior conduct of the employer. there was some reason to doubt that a fair competition could be-conducted were one ordered.” (m. supra. p. . 15.1 i - 6 - The question of a “prior determination” is an important one, and it lies at the heart of the submission of counsel for the Employer herein on the first issue before us. it is also found in the Parent case (555/82,.~556!82). referred to in m. AS is noted in Alam (at p. 16). a second competition in the m case showed that the grievor achieved the highest score, but failed to get the job because of an absolute standard applied by the Emp!oyer and found by the board to be unacceptable. Thus the board in u. concludes (at p. 16): “Therefore, in each of these cases, the issue as to the~appropriate remedy arose within a contest wherein there had already been a determination that, vis a vis other candidares for the job the grie\,or !vas at least relatively equal in qualifications and ability. In Zubrycki that determination hid been made by the Board. In Parent it had been-made through the results of the second competi- tion.” The board in Alam then reviewed other cases where a panel of the board directed the job to’ be awarded ,to the grievor without a second competition. ‘They include Newburn and Phillips 435/81. 486/81; u 113/82; Lethbridge 603i80, and Carrington 46?/80. Of those, u. Lethbridge and CarriniXon are of little help in the instant case as in the’first two, there was enough,informa- rion from the selection process for the board to find relative eqc;ality. and in the third the reasons are insufficient to draw any helpful conclusions. . . . . ~’ ~‘.?” Nenburn and Phillips is closer to the situation before us. As summarized in &lam at p. 17: - 7 - instant case [referring to .4lam] the Employer led substantial evi- dence with~respect to the issue of “relative equality”.” After a thorough review. the board in the Alam case remitted the matter -. back to the parties for a second competition to be conducted in accordance with a number of conditions. The jurisprudence represented by these cases is not entirely clear, as one might expect in viev. of the wi.dely-differing fact situations. On the issue of prior determination, however, ‘one may draw some limited conclusions. First, there is a presumption that the Board will remit a competition back to the Employer where no-prior determination of relative equality has been _ .I .made. The underlying principle is that the Employer is primarily in the busi- ness of running such competitions, among orher things. and that it accordingly has a competence to make such determinations to which a Board should defer unless there are reasons for the Board to assume t~hat role Hotvever, the Board may assume- that role xhere a different.panel of the Board, rather than the Employer, has already made such a determination, and there is sufficient evidence of bad faith to cast a shadow on the possibilit?. cf a fa;r competition if ordered (Zubrycki). The ‘Board may also assume the role where the process, including a secor,d : competition, pro\:ides enough evidence for- the Board i:self to make the final determination, and where:there has heen extensive delay (Parent) - 3 - Finally, where a prima facie case of re!ative equality is established by the Union, in the absence of any evidence from the Employer. the Board may’ find that sufficient to award the grievor the job even in the absence of any prior determination (Newburn and Phillips). In summary, factors such as bad faith, delay, and failure of the Employer to produce evidence in the face of a prima facie case may trigger an exercise of the Board’s own discretion in ordering that the grievor get the job, even in the absence of a prior determination by the Employer, but that discretion is o.nly exercised where sufficient evidence exists at the conclusion of the hearing for. the Board to be able to make the appropriate determination under Article 4 of the collective agreement. Hqti might these principles be applied tom the case before us? There has _been no prior determination here, but on the other hand. questions of bad faith and delay have not arisen. indeed, the Employer’s frank admission at the out- set of a flawed a process supports the bona fides of the Employer in this matter. We art! left with the issue raised b>, counsel for the Union when he pro- posed that the evidence before shows us that there is nothing left to determine. He has submitted that the tl~iden~e before ii.? vitiates the need for an); furthei determination by the Employer because ic i~iu:irl~- shn\LZ rhar the Griei’or is an - 9 - Counsel for the Employer has responded to this by refusing to attack the qualifications and abilities of the Grievor, hut by noting that there has indeecl been no had faith shown. nor delay. and that it is appropriate under the circumstances that the due process of a determination by the Employer be allowed to happen In reply, Counsel for the Union has invited us to consider again the resu!t in Newburn and Phillips. There the job was awarded on, a prima facie case made by the Union: here the situation is analogous, However. in th~is case, counsel for the Employer did ca11 evidence. p..s he pointed out. counsel jointly submitted’the personne,l fi!es of the grievor and the incumbent, and it cannot be concluded ‘that. as in Newburn and Phillips, the Empioyer submitted no evidence at all. it is our \:ierv that. under such circumsrwnccs, the answer lies iti. the evi- .dence itse!f. and not in the process of. submission. If the el;idence before LS. ~:’ even if joigrly submitted, is sufficient for the ho~arri to determine the issue (under .Ar&?!~e -I of the collecri\:e agreement. with lir.tle or no discretion left 10 he esercised by the Employer if there v?ere a remission back, then good indug- trial relations would suggest thar it is. appropriates under the unique circum- stances of this case for the hoard to bring the matter to fin;llity. In such - 10 - The position posted is that OP a General Duty Officer, and its Classifica- tion is “Correctional Officer 2 (Correctional Officer I Underfill).” The main part of the posting dealing with abilities and qualifications reads as follows: “The Sudbury jail requires macure responsible inditriduals who can function in a structured, disciplined setting, to perform a full range of duties related to the correctional care, control and ,supervision of inmatesNoung Offenders on a rotational shift basis. The Sudbury Jail is a maximum security institution. QUALIFICATION CRITERIA . . Ontario ‘Grade 12. or formal prooP of an equivalent standing, satis- factory related work experience: good oral and written communica- tion skills, good interpersonal skills and abi.lity to work effectively with Inmates/Young Offenders, supervisors, peers, volunteers, etc.; willingness and ability to work rotating shifts, weekends and holidays; ability to meet Ministry medical and physic&l standards; successPu1 completion ,of mandatory Ministry Correctional Officer Training~and one year of satisfactory experience as’% Cprrectioiral Officer 1 (suitable candidates lacking the latter criteria will be required to L’nderfill at the Correctional Officer 1 level); satisfac- tory attendance and work record.” The grievor. as has been noted. is already a Correctional Officer 2 and a fuil-time’member of the bargainin g unit, and he had both these qualifications at the time of the posting. .A review of ..his personnel file indicates consistentl) that he has been a very good, if not outstanding employee. For example, both the annual Performance Planning and Review as5essments of him for November i. 198-l to “November 1. 1985. and for September 1, 1986 1.0 August 31. 1987, show his ratings in ali~cntegories as ranging witi<out escepr.ion from :I to 4 with 3 being satisf:lctory ar111 4 bcin:: r:o~~sisrcr~l.iy ~!zr:cption:vl. - 11 - The Supervisor’s comments in those reports are consistently complimentary. containing such phrases as “progressed. steadily,” “maintained good work habits,” ” a very cooperative and conscientious correctional officer.” “willingly gives a little extra,” and “demonstrates no performance concerns.” We would note that counsel for the Employer, Mr. Sanderson. did not produce any evidence to con- test. or counteract these assessments, and was fair and direct in not disagreeing. with them in argument. In. vierv of the position taken by counsel on this evidence, it is unnecessary to comment further on the evidence in the grievor’s personnel record. We conclude that he is a good to outstanding employee, who is clas- - sified at thee required level of Correctional Officer 2 for the position. The incumbent’s personnel record is much more limited. as he was a permanent part-time employee at the time of the competition. He was unclassi- fied, and had been rated as a Correctional Officer 1 for pay purposes. His appointment on winning the competition is described in a letter from A.G. Hooson. Superintendent, Sudbury Jail, which reads as follows: November 6. 1987 Yr. Darcy Juhas cIo Sudbury J,ail RE: CO~lPETi’flO?l #CI-50fii-8; - - 12 - until 16 November, 1988. During this rime. your performance will be subject to regular review and assessment. Since the position that you occupy is classified as a Correc- tional Officer 2. your appointment is regarded as an underfill. You will be eligible for reclassification to Correctional Officer 2, pro- vided you have 1) completed successfully the prescribed Staff Training Course, and 2) exhibit acceptable performance during your probationary year. If you have any questions concerning this matter, please feel at liberty to contact me. The bargaining agent for your Union is Mr. Peter Slee, 1’685 LaSa!le Blvd.. Suite 202, Sudbury, Ontario. The local president is Mr. Ken McCausland. the Chief Steward is hlr. Claude St. Jean, and both are located at the Sudbury Jail. I hope that your employment with this Ministry will be enjoyable and rewarding. Yours truly, .4. G. Hooson Superintendent His personnel file does not show any assessments, but notes that he was an unclassified Correctional Officer at the Sudbury Jail from February 9th. 1967, to the time of the competition. Prior to that he had been an Automotive Sales Representacive~~with Sears for some seven years. In addition to graduating from high school, he had completed a course in “Law and Justice” at Laurentian University. a marketing course in “Business .Administration” at Cambrian College. and courses in Fi,rst ;iid. C.P.R.. and Baton .Training This evidence indicates that the grievor was fully qualified at the Correctional Officer 2 level for the posted ~,position, but there was a difference of opinion between counsel as to whether the incumbent was qualified. The posting. which we have noted above. requirrls in part under “Qi~alificarion Cril.erin” the fotiowing: - 13 - and one year of satisfactory experience as a Correctional Officer 1 (suitable candidaces lacking the latter criteria will be required to underfill at the Correctional Officer 1 Level):...“: Counsel For the Union noted that the incumbent did not have the year of satisfactory experience. and was ac~cordingly appointed on a probationary basis to underfill the position. Therefore, he submitted, the grievor was the only fully qualified candidate for the position, and should have been axarded it without any competition with the incumbent Counsel for the Employer noted the phrase “suitable candidates” in the excerpt quoted above, and submitted that the incumbent was a suitable candidate under the Qualification Criteria. His lack of experience was al!owed for under those criteria, and was accordingly taken into account when he was awarded the position Our view of this matter is that there are plainly two levels of qualifica- tion under the Qualification Criteria. .4 candidate with one year off satisfactory- experience at the Correctional Officer 1 level (which the grievor more than had), is a fully qualified candidate, not requiring any probationary underfill. A candidate lacking. that qualification wxs “suit:Ib!e,” ;rnd basicaliy qualified ur!der the Criteria, but would be subject,.to a probationary underfill period. Cjhether or not it is appropriate to have two such levels of qualification in a job posting is none of our concern. The approach presumably suits the - 14 - Both were qualified, therefore, to one extent or another. However, the range between their qualifications is such that we cannot see any relative equality between an unclassified casual employee, such as the incumbent, and a permanent employee classified as Correctional Officer 2 at the time of the com- petition. That difference alone creates a prima facie case of superiority for the grievor, over the incumbent, which is similar in some respects to the prima facie case created in NeGburn and Phillips by the failure there of the Employer to call evidence. In chat case, there was no contrary evidence.. In this case, the inequality. and rhe full qualifications of the grievor result in an overwhelming case in his favour. The evidence of ability apart from what may be derived from the above, is similarly conclusive on any reasonable basis of assessment. We may conclude the incumbent’s performance as a casual was adequate at least, on the presump- tion that he would not otherwise have been given the position in the competi- tion. In contrast, the grievor’s performance has been consistently assessed as being in the upper range, as a consideration of the evidence reviewed~ earlier shows. We would not conclude from this that it, wo~uld never be appropriate for a competition to be held, and a determination to be made, bet:ceen another “basi- call?;” qualified candidate and anothet “fuil~.” ~lunlifie: candidate in another _ case. Each situation must be assessed on its own merits, and two such r,andiii:i:es in:iy-otiir!r,cise be close ~rioligh th:ir :i cemper.ition to determine rela- ?ir,e kbiliries wo;~ld he full,~ appropriate. ’ - 15 - : ,i :; However, on the evidence of this case, .we w,ould conclude that lirr!? or no purpose would be served if we were to remit this marter bath: tc the Employer for a competition. -The evidence is clear that the grievor’s qualifications and abilities are not relatively equal to the incumbent, but are superior, and Lhere is little to choose between such evidence in the result, and the evidence of the _ prima, facie case in Newburn and Phillips. We note that similar considerations obtain for the other unsuccessful candidates as they were also unclassified employees. and no evidence cf their abilities aas professed by-Lhe Empioyer at the hearing. The griex’ance accordingly succeeds. ,The grievor is appointed forthwith t@ the position of General Duty Officer in the Correctional Officer !? ciassificarion at the Sudbuty Jail, as found in Competition #U-5061-87. We .make no award of compensation for 16s~ earnings as such was not requested al-the hearing. We retain ~jurisdiction in rhe event that difficulties arise in then implementacion of this award. Dated at Ocrawa, this 3rd day of ~ugusr , 1988 D. Praseemman