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HomeMy WebLinkAbout2011-4120.Falco.13-07-03 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2011-4120 OPSEU# 2012-0585-0046 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Falco) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE Reva Devins Vice-Chair FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Susan Munn Ministry of Government Services Legal Services Branch Counsel HEARING August 16, September 25, November 29, 2012; February 6 and April 5, 2013 -2- Decision [1] The Grievor, Patricia Falco, had over 25 years seniority with the Ministry of Labour when her position was eliminated. She received a surplus notice and was ultimately advised that there were no positions for which she was qualified. She grieved the Employer’s failure to identify a more junior employee whom she can displace and alleges a violation of Article 20.4 of the Collective Agreement. [2] On consent, and without prejudice to their right to proceed with other grievances regarding other positions, the parties agreed to proceed with this grievance, which identifies the position of Secretary to the Director of the Employment Practices Branch as the position for which the Grievor seeks to invoke her displacement rights. The Employer maintained that the Grievor was not working level qualified with respect to several core components of the job. The Incumbent was notified of these proceedings and elected to attend as an observer. The parties further agreed to proceed under Article 22.16 and that this decision be issued without prejudice or precedent. Facts [3] The Grievor commenced employment with the Ontario Public Service in 1986 and worked continuously for the Ministry of Labour, progressing through a number of clerical and secretarial positions. From December 1988 to May 1997 she worked as the Secretary to the Director, Office of Mediation, and filled in for six months as the Administrative Assistant for the Office of the Assistant Deputy Minister of Labour, AMAPCEO Level 13. [4] In May 1997, her position as Secretary to the Director was declared surplus and she was assigned to a position of Audit Assessment Clerk, OAG 9, in the Employment Standards -3- Branch. Between 1997 and 2011 she also worked as an Employment Standards Officer 2, an Intake Officer and in further assignments as an Audit Assessment Clerk. [5] The Ministry declared her position surplus on March 14, 2011, with a lay-off date of September 14, 2011. The surplus notice was put on hiatus during a period of medical absence and November 30, 2011 was subsequently identified as the Grievor’s final lay-off date. [6] The Grievor was contacted after she received her surplus notice by Lissa Jose, an Employee Mobility Co-ordinator (EMC) and advised to prepare a detailed description of all of the jobs that she has held. The Grievor recalls receiving an Employee Portfolio Template but did not remember receiving a copy of the guide that was intended to accompany it. The Grievor understood that she could contact Ms. Jose if she had any questions, but went ahead and filled out the Portfolio on her own, without asking any further questions or requesting further information. [7] In her Portfolio, the Grievor indicated that she had advanced skills in the area of Administration Support, including Reception, Data Entry, Filing, Scheduling, Mail Services, Purchasing Procedures and Keyboarding. S he further noted advanced or functional skills in Computer Software, with advanced skills in Word Processing, Spreadsheets, Databases, most aspects of Graphics, and in Communication Skills. She acknowledged somewhat more limited skills in the area of Financial Processes, Supervision/Group Leadership and Working with Information and People, Records Management, Policy Analysis and Purchasing Administration. The only areas in which she said that she had no skills were Information Technology, Operational Maintenance and in the Scientific and Technical fields. Ms. Falco knew that she was required to support her -4- Portfolio Skills Assessment with information in her Employee Portfolio Resume and she attached a detailed summary of the key duties she performed in her various job assignments. [8] The Grievor provided a two-page summary of the duties she performed as the Secretary to the Director, Office of Mediation. She prepared this document from memory, without the aid of the relevant job description, but intended it to cover all of her primary responsibilities. The duties she listed included typing a variety of documents, scheduling, making travel arrangements, maintaining an efficient filing system, providing monthly statistical reports, answering the phone, managing incoming and outgoing correspondence and providing general secretarial duties. [9] The Grievor also provided details of her other experience in the Ministry, including her work with the Employment Standards Branch. In her various assignments as an Audit Assessment Clerk, she was responsible for assessing multiple files referred to her by an Employment Standards Officer to determine if there were outstanding wages, vacation pay, overtime or termination pay. She would analyse the file, prepare a detailed report and advise the Officer of the results of her analysis. More recently she was responsible for preparing Writs, requisitioning cheques, corresponding with claimants regarding the status of their file and preparing files for collection agencies. Performance of these functions required proficiency in ESSIS, a computer based tracking system that needed to be maintained and updated on a daily basis. [10] The Grievor also has experience as an Intake Officer and Resident Auditor in the Employment Standards Branch. As Auditor, she met with employers and reviewed their records to determine whether employees were being paid in accordance with the governing -5- legislation. She would answer any questions asked of her by those whom she was auditing, prepare the necessary documentation and follow up with respect to the outcome of the audit results, as required. [11] In her vive voce evidence, the Grievor provided somewhat greater detail of her responsibilities. She testified that when she served as the Secretary to the Director, she typed up Briefing Notes and Executive Letters. She would not draft them herself, but did edit them for spelling and grammar. She also drafted lower level correspondence for the Director’s signature as well as reports for the Director and for the Deputy Minister when she acted as his Administrative Assistant. She prepared speeches and memos for the Director and had some experience with the preparation of spreadsheets, graphics and presentation software. The Grievor acknowledged that she might not have detailed all of this experience in her Employee Portfolio Resume, indicating she might have performed some of these tasks as part of a temporary assignment or that she simply might have missed some of the many things that she did over her 26 years in the OPS. [12] The Grievor was also advised during the redeployment process that HR had checked her corporate file and could not find results for a typing test. Ms. Jose asked her to take a new test so that she could be matched to vacancies with a typing to standard requirement. The Grievor refused. She insisted that she had passed the Dicta and Typing tests to government standards when she joined the OPS. She did not receive certificates and she considered it to be the Ministry’s responsibility to maintain a record of her results. The Grievor testified Ms. Jose did not refer to a specific position that required her to meet a typing standard; she understood that the request was with respect to the job search generally. In the Grievor’s opinion, she had held the position of Secretary to the Director for several years and had -6- therefore adequately demonstrated her typing skills. She felt that there was no need to retake the test as she had already demonstrated her qualifications in this regard. [13] Dali Aung, Program Consultant, Redeployment Services Offices (“RSO”) testified to the normal practice used by RSO staff when they review potential redeployment opportunities for surplus employees. I n the normal course, the employee would be asked to complete an Employee Portfolio setting out their previous experience, skills and knowledge. An Employee Mobility Coordinator would explain the surplus and redeployment entitlements to employees and provide template documents. The EMC would not verify or authenticate the contents of the Portfolio, but merely submit it to the RSO on behalf of the surplus employee. [14] Once they receive the Portfolio, RSO staff would determine whether there are any vacancies for which the displaced employee is qualified. If the surplus employee does not qualify for a direct assignment to a vacant position, RSO staff determine if the surplus employee is entitled to bump into an existing position by identifying positions within the Ministry that are held by more junior employees working at or below the surplus employee’s classification. The Employment Portfolio of the surplus employee is compared with the Skill and Knowledge section of the position held by the junior employee, and, if they appear to be a match for the position, staff performs a more detailed analysis and assess the demonstrated qualifications for the individual duties. All references in the Portfolio that could be relevant or equivalent to the skills, knowledge and experience required for each job duty are noted, as are any gaps in qualifications. [15] Ms. Aung did not assess the Grievor’s qualifications for the position at issue. Two other programme staff, who were not called as witnesses, analysed Grievor’s qualification for the -7- Secretary to the Director of the Employment Practices Branch. Ms. Aung participated in the displacement search for the Grievor with respect to other positions but only reviewed the written evaluation regarding this position when she prepared for arbitration. Ms. Aung was thus familiar with the decision that the Grievor was not working level qualified for the position but could only testify to her understanding of the reasons for that decision. [16] The Position Description Report (PDR) for the Secretary to the Director, MOL, Employment Practices Branch, effective from February 9, 2000, lists the responsibilities, requirements, knowledge and skills as follows: 3. Duties/Responsibilities 1. Preparing draft responses to queries, keyboarding executive letters, policy proposals, confidential materials, papers, correspondence, briefing notes, reports, using various software applications; setting up and maintaining hard copy correspondence files. Generating correspondence from written drafts and dictation. 2. Opening, logging and perusing mail, assigning and tracking correspondence requiring a reply to the appropriate manager. Retaining and drafting correspondence in priority order for own or director’s signature. Editing executive letters and replies prepared by other sections, i.e. district offices. 3. Receiving and screening telephone calls and visitors, e.g. senior government officials, senior executives from the private sector and media. Answering client inquiries, conveying information, contacting branch and field staff to obtain additional information or explanation. Providing factual information to queries by phone, Internet mail, faxes, regular mail and walk-ins based on thorough knowledge of OPS, Ministry and regional operations, functions, activities and personnel, referring to other internal and external sources as -8- required; identifying references and contacting sources on subjects as requested by director; and preparing findings in suitable format for review by requester. 4. Updating a computer based tracking system i.e. CMIS, hardcopy files for all correspondence actioned or received. Provide training and updates for managers and administrative staff on CMIS, house notes, briefing notes and common electronic files, establishing due dates, ensuring quality service standards are met and conducting follow- ups. 5. Researching and maintaining minutes for ministry and interministerial events, providing background information and support and compiling information for meetings, briefings, interministry and inter-government committees, speeches, and presentations. Preparing statistical reports, creating spreadsheets and graphic presentations. 6. Coordinating and attending meetings and conferences, assembling background information, contacting participants, rearranging schedules, preparing agenda and generating minutes. 7. Organizing and maintaining director’s meeting schedule; making travel, meeting and negotiating conference arrangements, including physical and logistical requirements and preparing and distributing agendas; providing administrative support to the Director including moveable assets, records management, purchasing office supplies, maintaining attendance records. 4. Staffing and Licensing Requirements -9- Job requires typing to government standards and full proficiency in word processing, graphics, database, presentation and spreadsheet software applications. 5. Knowledge Job requires knowledge of the Ministry’s, main offices and region’s role, objectives, programs and activities including Employment Standards, Health and Safety, Workers Compensation, Human Rights and Labour Relations legislation in order to: provide guidance to managers on correspondence and respond to inquiries and to research and compile information for meetings, briefings, speeches, by researching internet, intranet, files, policies and precedents. Job requires knowledge of secretarial functions and established internal office procedures to provide support to Director. Job requires detailed knowledge of procedures relating to file storage and retention, movable assets policies and purchasing policies to implement these initiatives in the Director’s office and provide administrative and purchasing guidance and support. Job requires knowledge of performance management process including setting training and development plans in order to process and track these documents. Job requires knowledge of office equipment such as photocopier and facsimile to copy material and transmit information. 6. Skills Job requires analytical skills to determine the nature of calls and to make decisions concerning the permissibility or confidentiality of information and to research and -10- assess information; written communication skills to edit and compose correspondence; verbal and interpersonal skills to liase with a variety of contacts and to respond to the public, media, and private sector. Job requires the ability to identify priorities, establish timeframes and to co-ordinate resources. [17] The Job Ad for the position at issue set out the responsibilities and qualifications as follows: Your responsibilities will include: preparing verbal and draft correspondence responses; setting up/maintaining correspondence files; managing mail; editing executive letters; receiving and directing telephone calls and visitors; updating computer based tracking systems; researching, compiling information, and maintaining minutes for ministry and inter-ministry events; preparing statistical reports, creating spreadsheets and graphic presentations; coordinating travel arrangements; organizing and maintaining director’s meeting schedule; assisting with special projects including healthy workplace and training initiatives. Qualifications: Demonstrated organizational skills to coordinate/schedule meetings, draft responses, prioritize multiple tasks to meet deadlines, resolve conflicting priorities and demands; Proficiency in the operation of a computer and software such as word processing, spreadsheet, presentations and database management; Demonstrated knowledge of OPS secretarial, administrative and internal office procedures including file storage management and retention, moveable assets policies and purchasing policies; Familiarity of relevant legislation/regulations such as the Employment Standards, Occupational Health and Safety, Worker’s Compensation, Human Rights and Labour Relations; Proficient oral -11- communication skills to respond courteously and tactfully. Demonstrated written communication skills to compose correspondence, summaries, statistical reports and contribute to office communications. Proven interpersonal skills to liaise and maintain effective working relationships to obtain information and provide advice to management and co-workers to resolve problems; Demonstrated analytical skills to detect errors in expense claims and invoices, typed materials, resolve errors, collect background information and make summaries for the Directors requirements. [18] Ms. Aung testified that she understood that the RSO Programme Advisor who reviewed the Grievor’s Portfolio determined that the Grievor was not working level qualified for the position having regard to the following gaps in her qualifications: [19] No demonstrated experience preparing draft executive letters, policy proposals, briefing notes and correspondence from written drafts and dictation (Duty 1). [20] No demonstrated experience editing executive letters (Duty 2). [21] No demonstrated experience using CMIS, providing training on CMIS, house notes and briefing notes (Duty 4). [22] No demonstrated experience preparing graphic presentations (Duty 5). [23] No demonstrated experience providing admin support such as moveable assets (Duty 7). [24] In assessing displacement eligibility, the normal practice would be to consider the number and size of the qualification gaps without any further contact with the surplus employee. Staff would simply rely on the information set out by the surplus employee in her Employee Portfolio. If there was only a minor gap in demonstrated qualifications, they -12- might make further inquiries. In this case, Ms. Aung believed that if the Grievor’s only gap in skills was with respect to moveable assets, then the Programme Advisor might have exercised her discretion to contact the Grievor for further clarification of her previous experience. However, since so many gaps were identified, she did not believe that there was any further contact with the Grievor. [25] In Ms. Aung’s view, it would not be physically possible to contact every surplus employee with respect to every position for which they were considered. The RSO is not responsible for the content of the Employee Portfolio and do not have the resources to ask about qualifications that are not supported in the required documentation. Ms. Aung noted that although the Grievor indicated in the Skill checklist component of her Portfolio that she possessed a large number of skills, she did not provide any corroborating support for that assertion in the detailed listing of the duties that she had previously performed. Ms. Aung also testified that, for the purposes of displacement, an individual must have performed the exact task in a previous position in order to be considered working level qualified to perform the core components of the position. [26] For example, Ms. Aung noted that the Grievor detailed experience preparing routine correspondence, but did not list experience editing executive letters, or preparing executive letters, briefing notes or policy proposals. Similarly, there was no reference to experience with CMIS in the Grievor’s Portfolio. CMIS is an online correspondence management system that is primarily used in executive offices to track correspondence, briefing notes and confidential materials. There are also a number of similar databases, such as OCMS, however the Grievor did not list familiarity with any electronic correspondence maintenance system. Nor did she indicate that she had any experience or familiarity with -13- presentation software, such as Power Point, or any experience maintaining moveable assets, such as furniture or electronic equipment. [27] On cross-examination Ms. Aung confirmed that she considered preparing draft executive letters, policy proposals and briefing notes as a core component of the position. She then acknowledged that the duties listed in the PDR only refer to keyboarding these documents and that the Grievor did have experience keyboarding and editing executive letters in her former position as Secretary to the Director. She also conceded that the Grievor had experience with broad based, computer tracking systems, even if it was not focussed on correspondence management. [28] The Incumbent, Deanna Roy, held the position of Secretary to the Director for the Employment Practises Branch for roughly 5 years, until September 2012, at which time, the position was eliminated and she moved to a new position by direct assignment. [29] As the Secretary to the Director, her main responsibility was to manage a large amount of incoming documents and correspondence. A good deal of the correspondence was internal to the Employment Practices Branch and she used the Online Correspondence Management System (OCMS), which electronically routes correspondence to the relevant contact for response, within the appropriate timeline. Some letters would require input from multiple sources and the system would also record the appropriate party responsible for signing the letter. Ms. Roy has never worked with CMIS, but believed that it was essentially an older version of OCMS. She acknowledged, however, that she did not know how to use CMIS or the manner in which it varied from OCMS, all she knew for sure was that it was an online correspondence management system. She further testified that OCMS and ESSIS were both online management systems, but that they perform different functions. OCMS was used -14- exclusively for correspondence and ESSIS was used as a claims tracking process with multiple functions. They can both be used to scan documents and extract information, but ESSIS can also generate reports or letters, whereas OCMS cannot. [30] As the Secretary to the Director, she also managed correspondence from the public, other programmes in the Ministry of Labour and the Ontario Public Service. She was responsible for printing out the correspondence and ensuring that it required a response from the Branch. She would also determine if there was a specific claim associated with the author of the letter, in which case it would be referred to the officer assigned to the file for response. If the inquiry were of a general nature she would draft a preliminary response that was then reviewed by the provincial co-ordinator. For more complex issues, the correspondence would be referred to a specialist. The correspondence would then go to the Director for review and be routed back to the correspondence unit, through OCMS, for approval from the Minister, Deputy Minister or Assistant Deputy Minister, as appropriate. [31] The Secretary to the Director’s other duties included general administrative functions such as answering the phone, photocopying, logging and distributing documents, and taking any further action, as required. She was responsible for ordering moveable assets, such as, office furniture and equipment through an online ordering system, where she would select a product, order it and track delivery, all on final approval of the Director. With respect to briefing notes, a programme consultant dealt with the complex matters whereas Ms. Roy would occasionally draft an update on a specific, straightforward issue for an existing document, under the direction of the specialist. Ms. Roy would also prepare presentations from time to time, on average about once per month. She would typically create a chart using Excel and import it into a Power Point presentation to be used by the Director. -15- [32] Ms. Roy estimated that well over half of her time was related to incoming and outgoing correspondence. With respect to the other half of her time, scheduling occupied the most time. She would also spend a fair amount of time answering the phone, photocopying and performing regular secretarial duties; she did not spend a lot of time addressing moveable assets, updating or revising briefing notes or preparing presentations. Submissions [33] The Union submits that the Employer is obliged to identify all employees with less seniority than the Grievor who are in the same classification, the same Ministry, within 40 kilometres of the Grievor’s headquarters and perform work that the Grievor is qualified to perform. The Grievor need not demonstrate that she is relatively equal or better than the Incumbent to exercise her displacement rights. She need only demonstrate that she has the skills and knowledge to perform the core components of the position at a working level. Furthermore, she is entitled to a period of orientation, familiarization and integration into the new workplace, although she would not be considered qualified if she requires training to acquire new skills. [34] In this case, the Union maintains that the Grievor is working level qualified for the position of Secretary to the Director of the Employment Practices Branch and is therefore entitled to bump the Incumbent, a more junior employee, from that position. The Grievor held the same position in the same Ministry for several years and the Union submits that she has experience in virtually all of the required areas. She also has extensive experience in the Ministry of Labour and, more specifically, with the application, interpretation and enforcement of Employment Standards legislation. -16- [35] The Union acknowledged that the Grievor does not have experience with CMIS, however, neither did the Incumbent and the Grievor does have experience with other tracking systems. Nor does she have significant experience preparing graphic presentations or with moveable assets. In the Union’s submission, the Grievor does, however, have demonstrated experience with comparable duties and would be able to perform these components of the job with a minimum amount of familiarisation. [36] The Union rejects the suggestion that an employee can only be assessed against the precise words used in their Employee Portfolio. The Grievor prepared this document on her own, from memory and without the assistance of the relevant PDR or input from Human Resources. It is therefore not surprising that she might have used language that is different than that used to describe the job duties as set out in a formal job documented created by human resource specialists. [37] The Union also maintained that the Job Ad used to hire the Incumbent should be considered in determining the core components of the position. In this instance, the Job Ad does not require or mention a number of skills that the Employer now suggests are required but not demonstrated by the Grievor. The Ad does not refer to CMIS, drafting executive letters, policy proposals, briefing notes or dictation. In the Union’s submission, if these duties were not important enough to mention in the Job Ad, then they should not be considered core components of the position and should not be determinative of whether the Grievor is working level qualified. [38] The Union further submitted that the evidence of the Employer established that RSO staff used a standard that was both inconsistent with the case law and unduly onerous. The acknowledgment that an individual would have to have performed the identical task in -17- order to demonstrate that they were working level qualified ignores their right to a period of orientation and integration. In the Union’s submission, the standard employed by the RSO establishes an unreasonable barrier to an employee’s right to displace a junior employee. [39] The Union also argued that there were other, more specific errors in this case. Notably, it appears that staff misread the PDR and inserted more demanding requirements than were contained in the relevant document. Whereas the PDR detailed responsibility to keyboard complex documents, reviewing staff treated this as requiring experience preparing them. [40] The Union seeks an Order awarding the position to the Grievor with no loss of income, seniority, service and benefits. It relied on the following cases in support of its submissions: OPSEU (Strunc) v Ontario (Ministry of the Environment and Energy) [2000] O.G.S.B.A. No. 21 (Harris); Elgin County Roman Catholic Separate School Board v. London & District Service Worker’ Union, Loc. 220 (Xuereb) (1992), 26 L.A.C. (4th) 204 (Rose); PEGO (Donyina) and Ontario (Ministry of Environment and Energy) (1998), GSB #2897/96 (Briggs); York University v. Canadian Union of Public Employees, Loc. 1356 (Price) (2008), [2008] O.L.A.A. No. 218 (Chauvin); Children’s Aid Society of Metropolitan Toronto v. Canadian Union of Public Employees, Loc. 2316 (Xuereb), [1990], 14 L.A.C. (4th) 403 (Foisy). [41] The Employer maintains that the main issue before me is whether the Grievor has demonstrated that she has the necessary experience and knowledge to perform the core components of the position at a working level. The Employer argued that the core components of the position should be identified by reference to the PDR and the evidence from the Incumbent with respect to the tasks that she actually performs. It was submitted -18- that the Job Ad was irrelevant as it serves a different purpose and the standard for selection in a job competition is not the same as the standard that applies in displacement situations. [42] In the Employer’s submission the Union has not met their onus of establishing that the Grievor is working level qualified to perform the core components of the position at issue. The duties that the Grievor performed in her previous position of Secretary to the Director were sufficiently different from those of the current position that her experience does not automatically establish that she is qualified to displace the Incumbent. While there is some overlap between the two positions, there are a number of core components for the position of Secretary to the Director of the Employment Practices Branch for which the Grievor has no demonstrated experience. [43] The Employer submits that despite her past experience performing executive secretarial duties, the Grievor’s skills are out dated and insufficient for this position. In particular, it was argued that she did not have demonstrated experience drafting executive letters, preparing briefing notes, managing correspondence electronically, preparing graphic presentations or with regard to moveable assets. [44] The Employer also maintained that the assessment of whether the Grievor has demonstrated that she is working level qualified should be restricted to the information that she provided in her Employee Portfolio. The Grievor was aware that she could contact her Employment Mobility Co-ordinator if she needed assistance in filling out her Portfolio. She did not ask for any help and refused to co-operate when she was asked to take another typing test. In the Employer’s submission, the process set out under the collective agreement was followed and it would be inequitable to permit the Grievor to rely on further evidence after the agreed to process was completed. -19- [45] The Employer argued that the collective agreement entitles the Grievor to a matching process if her position is declared surplus and the parties have agreed to how that matching process will operate. The Union failed to establish that the agreed to process was not followed in this case and therefore there has been no violation of Article 20.4 in that regard. To the extent that the Union suggested that the process was inadequate because the Grievor did not obtain any assistance, the Union did not put forward any additional evidence that was not found in the Employee Portfolio. Therefore, there is no basis to find that the Employer did not have all of the relevant evidence when it determined that the Grievor was not qualified. [46] The Employer referred me to the following cases in support of its position: OPSEU (Loebel) v. Ontario (Ministry of Finance), GSB #331/82 (Verity); OPSEU (Henderson) v. Ontario (Ministry of Citizenship) (1992), GSB #1097/91 (Barrett); OPSEU (Ansari) v. Ontario (Ministry of Agriculture, Food and Rural Affairs) (1998), GSB #0482/97 (Abramsky). Decision [47] The Grievor’s position was declared surplus and the Union has identified a position that it alleges gives rise to her entitlement to displace a more junior employee. The parties agree on the applicable level of qualifications: “The surplus employee must be qualified to perform the work of the position identified. This means that the surplus employee must have the necessary skills and knowledge to perform the core components of the position at a working level and will not require training in these areas.” The parties further agree that “training does not refer to the orientation and integration any employee would normally -20- receive when entering a new position nor does it prohibit training to raise skills above a working level.” [48] The parties’ consensus on the relevant standard to be applied in this case reflects a longstanding analytical approach taken by the Board. In Loebel, the leading case on this issue, Vice Chair Verity set out the test to be applied: To determine if a surplus employee is qualified to perform the work pursuant to Article 24.2.3, the Board accepts Management’s argument of “present ability” to the extent of minimum competence in all components of the job requirements. To adopt any higher test of present ability would be to destroy the significance of Article 24.2.3. That Article has been mutually agreed upon by the Parties to benefit surplus employees by affording them certain preferential rights of appointment. Few, if any surplus employees would succeed in moving successfully from one Ministry to another if the accepted test were more stringent than minimum competence in all of the major components of the job. Such an interpretation does not mean that a surplus employee must possess skill and knowledge in all activities associated with the position. However, it does mean skills and knowledge of the main component of the position. In the subject case, knowledge of the Ministry’s objectives, policies and programs are all major components of the position, each of which is essential to a surplus employee to be deemed “qualified top perform the work”.1 1 Supra, at p. 21. -21- [49] Similarly, in Henderson, Vice Chair Barrett described the test as follows: Article 24.2.3 is not a job competition article and it is clear that surplus employees need only have the minimal qualifications to perform the essential duties of the position. This is clear from the wording of article 24.2.3, and the jurisprudence of this board, and the memoranda from Management Board of Cabinet referred to above. This does not mean, however, that a new lower standard of what it means to be qualified has been introduced into the collective agreement. Article 24.2.3 speaks to present qualifications, not those that could be obtained through extensive training. With extensive training, an electrician could become a plumber and a plumber could become an electrician. Neither has the present qualifications to perform the other’s job.2 [50] Finally, Vice Chair Harris in Strunc has succinctly restated the test and underscored the notion of minimal competence: “The qualifications required in order to displace a junior employee are not those of a fully qualified and experienced incumbent. It is well established that a displacing employee need only have minimum competence in the major components of the job.”3 [51] Before addressing the main issue of qualification, there are two preliminary issues that I must consider: (a) How do I determine the core components of the position? 2 Supra, at p. 12. 3 Supra, at paragraph 27. -22- (b) What evidence should be considered in determining qualifications? [52] The Employer suggested that I should determine the core components of the job by interpreting the PDR in light of the Incumbent’s vive voce evidence of what she actually does. The Union urged me to consider the PDR, the Job Ad and the evidence of the Incumbent. [53] I prefer the approach suggested by the Union. While it is appropriate to examine all of the available evidence to determine what the core components of the job include, the greatest weight must be given to the PDR, the formal document created by the Employer to outline the responsibilities, duties, skills and knowledge in respect of this position. The Job Ad reflects a more limited view of what the Employer considered important when it was seeking candidates to fulfil those requirements. Similarly, the evidence of the Incumbent is relevant, however in no way determinative. [54] In the end, if a duty is not specified in the PDR, I cannot find that it is a core component of the job merely because the current incumbent performs that function. In order to respect the jurisprudence of this Board, it is important not to define the core components in a manner that effectively elevates the minimal qualifications required to do the job to the level of proficiency demonstrated by an experienced person currently performing in that role. [55] This should not be interpreted as a negative comment on the ability of the Incumbent. Ms. Roy is clearly a very intelligent and highly capable employee. However, this is not a competition between her and the Grievor. If I rely on the evidence of Ms. Roy to determine the content or required duties of the position, qualification would inevitably be defined on the basis of her particular strengths and unique abilities. It thus runs the risk of setting an -23- arbitrary bar for qualifications that is dependent on the identity of the incumbent at that particular time. [56] The PDR states that the purpose of the position of Secretary to the Director is to “provide secretarial and administrative support to the office of the Director”. Duties include the kinds of duties one would generally expect of an executive secretary: preparing standard letters, statistical reports, spreadsheets and graphic presentations; keyboarding; managing correspondence, including use of a computer based tracking system; receiving and screening calls and visitors; answering general queries; admin support to co-ordinate, organise and maintain schedules, meetings, conferences and travel; and providing other admin support such as moveable assets, purchasing office supplies and maintaining attendance records. [57] The Job Ad focuses on organizational skills, proficiency in the use of a computer and relevant software, knowledge of OPS secretarial, administrative and internal office procedures, familiarity with relevant legislation, demonstrated written communication skills, analytical skills and interpersonal skills. The Incumbent confirmed that the majority of her time is spent managing correspondence: tracking it on OCMS, referring correspondence to the appropriate person for response, and preparing some draft responses on her own that are subsequently reviewed by a more senior staff member. [58] In her closing argument, Counsel for the Employer suggested that the Grievor was not working level qualified with respect to several core components of the position: drafting executive letters, preparing briefing notes, managing correspondence, preparing graphic presentations and providing admin support with respect to moveable assets. -24- [59] Having reviewed the PDR and the other relevant evidence, I am not persuaded that the Grievor must demonstrate experience or qualifications preparing draft executive letters, policy proposals, briefing notes or complex correspondence. The PDR indicates that she would be required to keyboard these documents, but limited the preparation of drafts to responses to general queries. Counsel for the Employer suggested that I should read in the responsibility to draft other executive level documents based on the evidence of the Incumbent. As I have already concluded, that would establish a core component that vastly exceeds the duties detailed in the PDR or Job Ad. In effect, it would require the Grievor to demonstrate that she is as proficient as the Incumbent. That is clearly not the standard to be met in this case. [60] Nor do I find that familiarity with CMIS is a core component of the position. The PDR refers to CMIS in the broader context of updating and training others on a computer based tracking system. In fact, the Incumbent was herself only vaguely familiar with the programme and does not use CMIS. Correspondence management, including online tracking is clearly a core component, however, it should not be so narrowly defined that it frustrates the purpose of Article 20.4. [61] The Employer also argued that the Grievor was entitled to a displacement process that had been established with the agreement of the Union. The Employer followed that process in this case and the Grievor should not be entitled to rely on additional evidence of her qualifications to in effect do an end run around the process. I was therefore urged to restrict my examination to the information contained in the Employee Portfolio. [62] I accept that there is a heavy burden on management and the Grievor to make every effort to get it right in the first instance. It is very disruptive for the Incumbent and the system -25- generally to provide evidence of new qualifications at this late stage. However, the Grievor is entitled to more than a good faith effort to place her in another position. The Collective Agreement establishes a substantive entitlement to a position for which she is qualified if it is held by a more junior employee. In my view, all of the evidence, including the clarification provided at arbitration, must be considered to determine whether the Grievor has the requisite qualifications. [63] I would also note that, in this case, I do not have any direct evidence of the process that was followed in comparing the Grievor’s qualifications against the core components of the position. The only witness that the Employer called from RSO was neither the Grievor’s Employee Mobility Coordinator nor the person who assessed her qualifications for this position. Consequently, there is only minimal evidence of the process actually followed by RSO. [64] What evidence there is, suggest errors in the review and incorrect conclusions regarding the core components of this job. For example, I have already determined that preparing draft executive letters, policy proposals and briefing notes should not be considered as core components. The PDR is clear that the duties include preparing draft responses to queries, but are limited to keyboarding higher level or more complex documents such as briefing notes or executive letters. Nonetheless, RSO cited an absence of demonstrated experience preparing executive documents as one of the main deficiencies in the Grievor’s qualifications. [65] There was also evidence that the Employer used an excessively high standard to assess whether the Grievor was qualified to perform the job. Ms. Aung made it clear that she and her colleagues operated on the assumption that an individual must have actually performed -26- a specific duty in order to be deemed qualified. They did not examine broad duties but focussed on very narrow and specific individual tasks when they assessed whether there was match. Moreover, their approach did not take into consideration whether the Grievor had sufficient experience so that she could perform the major components of the job after a period of familiarisation and orientation. [66] In my view, RSO asked whether the Grievor was fully qualified to do every aspect of the position, at an advanced or senior level. Such a narrow focus gives rise to a real risk that the preferential rights based on seniority that are granted under Article 20.4 will become illusory. While Ms. Aung acknowledged that the conclusion in this case might have been different if the Grievor was considered deficient in only one small aspect of the position, the orientation was to screen out “possible/potential” matches where ever there was not a perfect overlap, not to screen in the senior employee where they demonstrated minimum competence to do the job. [67] The overly technical view that was taken by RSO was made even more problematic by the information they relied upon. Employees fill out an Employee Portfolio on their own, describing their skills and experience, in their own words. RSO employees then compare that document with a formal Position Description Report looking for precise matches. I accept that staff make genuine efforts to identify relevant skills and that surplus employees must take responsibility for ensuring that they provide complete information regarding their previous work experience. Nonetheless, RSO must take into account the limitations that are inherent in the process and should seek further clarification where appropriate. [68] This was not a case where RSO was assessing an Electrician against a Plumber, or even a Metallurgic Engineer seeking the position of a Civil Engineer. This is a case where the -27- comparison is between a former Secretary to a Director in the Ministry of Labour and a current Secretary to a different Director in the same Ministry. It seems surprising that the two positions would be so dissimilar that an employee could have lengthy experience in one position and not be working level qualified to perform the core components of the other. [69] Counsel for the Employer suggested that the positions were not identical because the job had evolved since the Grievor served in the role and because different duties were required to meet the needs of this particular Director. The PDR for the Grievor’s former position was not available, however, the PDR for the position at issue was developed in 2000, three years after the Grievor left her former position. One wonders how much of an evolution in the position could have occurred in that intervening period. Nor was there evidence to explain why there would be a significant difference in the same position, classified at the same level, in the same Ministry, simply because it was for the Director of a different Division. In these circumstances, the Employer should have contacted the Grievor to clarify the information contained in her EP. That was doubly true where, as here, the Grievor indicated that she possessed certain skills essential to the performance of the position under review, but her EP did not include detailed information to support her self-assessment. [70] For all of these reasons, I find that it would not be appropriate to restrict the evidence that I consider to that found in the Employee Portfolio. In my view, the Union is entitled to rely on the vive voce evidence of the Grievor that was given at arbitration to establish that the Grievor is qualified for the position held by the Incumbent. [71] Has the Union established that the Grievor has the minimum competence to perform the core components of the position at issue? I find that it has. She has experience working in a similar position and performed a myriad of general administrative support and secretarial -28- duties over many years. While it has been a number of years since she held the position of Secretary to the Director, she has provided detailed support for the vast majority of the core components of this position in her Employee Portfolio. The Grievor’s qualifications might be wanting with respect to a couple of minor aspects of the position, however, she has the necessary skills and experience to be considered working level qualified after a modest period of familiarisation. [72] The Grievor’s evidence clearly establishes that she has experience keyboarding and editing executive correspondence. She also has extensive experience preparing basic correspondence, functions that she performed when she previously held the position of Secretary to the Director and in her subsequent positions with the Employment Standards Branch. She also acquired significant experience with Employment Standards legislation when she worked as an Audit Assessment Clerk, Intake Officer and Resident Auditor with the Employment Standards Branch. She gained further experience analysing data, drafting reports and responding to related inquiries in these later positions with the Branch. [73] In argument, the Employer suggested that preparing executive documents was one of the main functions of the position and that the Incumbent “takes the lead” in drafting responses that raise policy issues under the Employment Standards Act. Since the Grievor did not have demonstrated experience preparing a range of executive level documents, including complex correspondence, briefing notes and policy papers, the Employer took the position that she was not qualified for the job. I accept that the Grievor has not drafted complex or executive level correspondence, or prepared briefing notes, however, I have already found that they are not in fact core components of the job. -29- [74] The Employer also challenged the Grievor’s qualifications to prepare presentations and provide administrative support to the Director for moveable assets. The Grievor testified to some experience creating charts, graphs and spreadsheets but acknowledged that she did not have experience creating illustrations. She also admitted to limited experience with presentation software, but noted extensive experience with other, comparable software, including Excel. The Grievor further acknowledged limited experience regarding moveable assets. [75] I do not regard either of the above noted gaps as determinative of whether the Grievor is minimally qualified for the position. First of all I note that moveable assets and preparing presentations comprise only a small part of the overall responsibilities, according to the Incumbent. More importantly, the Grievor has all of the necessary skills and demonstrated experience to establish that she will be able to perform these duties after a relatively brief period of orientation. She has a broad range of computer based skills and familiarity with a wide array of software. The Grievor would undoubtedly be able to master these tasks after familiarisation with the relevant computer programme, office procedures and protocol. In my view, she does not need to be trained to develop new skills, but rather to build on her existing skills through a period of orientation, integration and familiarisation in the new position. [76] Finally, I find that the Grievor is working level qualified with respect to correspondence management. The Grievor has several years experience with manual file retention and correspondence tracking systems from the period when she was a Secretary to the Director and the Assistant Deputy Minister. She thus has the demonstrated conceptual skills associated with correspondence management, having assumed that responsibility in her former position. While she does not have any familiarity with the specific computer -30- programme now in use within the OPS, she has experience in other computer based tracking systems. Her experience with ESSIS, in a claims based environment, was described by the Incumbent as a more sophisticated system that used multiple functions. Despite the absence of actual experience with CMIS or OCMS, I find that the Grievor’s experience is sufficient and that she is qualified to manage and update a computer based tracking system, including a correspondence management system. [77] I would allow the grievance and Order that the Grievor be placed in the position of the Incumbent and that she be made whole with respect to her pay, benefits, seniority, service and pension. The matter is remitted back to the parties to determine the manner in which my order will be executed. I will remain seized in the event that an issue arises with respect to the interpretation or application of this Decision. Dated at Toronto this 3rd day of July 2013. Reva Devins, Vice-Chair