HomeMy WebLinkAbout2011-0597.Holder.14-02-25 DecisionCrown Employees
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GSB#2011-0597
UNION#10-38
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees - Local 1750
(Holder) Union
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The Crown in Right of Ontario
(Workplace Safety and Insurance Board) Employer
BEFORE Ken Petryshen Vice-Chair
FOR THE UNION Jim Morrison
Canadian Union of Public Employees –
Local 1750
National Staff Representative
FOR THE EMPLOYER Gurjit Brar
Workplace Safety and Insurance Board
Counsel
HEARING February 17, May 23, 2012, June 6 and
September 4, 2013
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Decision
[1] In a grievance dated September 29, 2010, Mr. G. Holder alleges that the Employer
contravened article 5 of the Collective Agreement when it did not consider him a Qualified
Candidate for the posted vacant position of Senior Investigator, Investigations & Prosecutions
Branch. The release date for the posting was July 1, 2010. In his application for the position Mr.
Holder indicated that he was applying as a Qualified Candidate based on having held the position
of Fraud Investigator in the Special Investigations Branch (“SIB”) from December 28, 1992 to
July 22, 1994. The Union seeks a declaration that Mr. Holder was a Qualified Candidate for this
competition with the result that he should be placed in the position of Senior Investigator if he
had the seniority to obtain one of the two vacant positions. The Union also requests that Mr.
Holder should be fully compensated for his losses because of the Employer’s decision not to
consider him a Qualified Candidate.
[2] There is little dispute about the factual context giving rise to Mr. Holder’s
grievance, although each party characterizes the facts somewhat differently. In addition to Mr.
Holder, the Union called Ms. E. Harris and Mr. M. Gaspar to testify. The Employer called Mr.
M. Johnston, the Executive Director of the Regulatory Services Division, as its only witness. In
determining the facts, I have reviewed the oral and documentary evidence and considered the
submissions relating thereto.
[3] The parties agree that the relevant Collective Agreement provisions are clear and
unambiguous. Article 5 deals with recruitment, selection, reassignments and transfers. The
provision which provides for Qualified Candidate status is article 5.04(b). It reads as follows:
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List of Qualified Candidates
Preliminary candidates who meet the established threshold will be identified as qualified
candidates for the vacant position. All applicants will be notified in writing of their status
within 10 working days of notifying the successful candidates.
The Employer will maintain a list of Qualified Candidates, in order of seniority, for each
position posted. Candidates must indicate their interest in each subsequent posting.
Qualifications will remain valid for 24 months from date of posting.
Where an employee applying to a posted vacancy has held the same job on a temporary
or permanent basis, and they are eligible to apply to the posting, they will be deemed to
be a Qualified Candidate provided they successfully completed their respective trial
period in the same job. This is contingent on the following:
i. the job has not been significantly changed under Article 6 since they
vacated the job, and
ii. the employee was not involved in a documented, unsuccessful,
performance improvement plan in that job. A performance appraisal does
not count as a documented performance improvement plan.
iii. The Qualified Candidate status meets a demonstrated need for a specific
skill set for the following positions:
. Appeals Resolution Officer (Adjudication, Revenue)
. Learning & Development Specialist (Adjudication, Revenue)
. Program Evaluation Specialist (Adjudication, Revenue)
. Multilingual Specialist (specified language skill)
When the number of Qualified Candidates is:
. the same as the number of posted positions, the positions will be filled by the
Qualified Candidates.
. greater than the number of posted positions, the position will be filled by the most
senior.
. less than the number of posted positions, the hiring party will assess any remaining
Preliminary Candidates until all vacancies are filled, or the Preliminary Candidates list is
exhausted.
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[4] The parties referenced two other features of the Collective Agreement that are
worth noting. Article 6 addresses organizational and technological change. Where such changes
are planned, the Employer is obliged to discuss its intentions and the expected effects with the
Union. Employees whose permanent job will be significantly changed are entitled to notice and
are to be provided certain options. As provided for in article 5.04(b), the deeming of Qualified
Candidate status for holding the same job in the past is contingent on whether the job has
significantly changed under Article 6 since the employee vacated the job. The other feature is
the statement of intent at the beginning of article 5, which reads as follows:
Statement of Intent
To support the WSIB’s principle of recruitment from within, and in recognition of the
value to the organization of its employees, the parties agree to recognize knowledge,
skills and abilities obtained through employment at the WSIB, and will promote internal
development of skills essential to the success of the business.
[5] As article 5.04(b) indicates, one way to attain Qualified Candidate status is to have
held the “same job” as the one in a posted vacancy. The parties recognize that this aspect of the
article provides a significant benefit to an employee. Qualified Candidate status is not affected
by how long ago in the past an employee held the same job, as long as none of the disqualifying
factors are applicable, including whether the job has significantly changed under article 6.
Therefore, the fact that Mr. Holder is seeking to attain Qualified Candidate status based on a job
he held for about 19 months sixteen years earlier, by itself, is not problematic.
[6] As noted previously, the posted vacancy in this instance is for the job of Senior
Investigator. The job number for this position is 1037 and the salary grade is 885. There is a job
description for this position and the job posting sets out the primary responsibilities of the job.
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The following paragraph in the job posting provides a general description of the nature of the
Senior Investigator job:
The Senior Investigators co-ordinate investigations as a lead investigator and carry out
independent investigations that are complex/sensitive in nature into allegations of
irregularities or fraudulent activities, which directly affect the operational and financial
interests of the WSIB. They also prepare court briefs and participate in the presentation
of cases before the Courts, etc.
[7] Although Mr. Holder did not hold a job called Senior Investigator, the Union takes
the position that the Investigator job he held in the past is the same job as the Senior Investigator
vacancy that was posted in 2010. It argues that the core duties of his Investigator job are the
same as the core duties of the Senior Investigator job. It also submits that there has not been any
significant change to the job since Mr. Holder held it in the early 1990’s. In addition to
referencing section 4:2100 of Canadian Labour Arbitration, Brown & Beatty, the Union relied
on the following two decisions: Re Massey-Harris-Ferguson Ltd. (1955), 5 L.A.C. 2123
(MacRae); and, Re OPSEU and North Bay Parry Sound District Health Unit, an unreported
decision dated September 30, 2012 (Nairn).
[8] The Employer takes the position that Mr. Holder has never held the Senior
Investigator position in the past and has therefore not attained the Qualified Candidate status for
the posted vacancy at issue. Employer counsel reviewed the evidence at some length in an effort
to illustrate that the Union had failed to establish that Mr. Holder held the Senior Investigator job
in the past. After also referring to sections of Canadian Labour Arbitration, Brown & Beatty,
and the dictionary definition of the word “same”, Employer counsel relied on Re Algoma Steel
Inc. and United Steelworkers of America, Local 2724 (2006), 148 L.A.C. (4th) 289 (Knopf).
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[9] In order to succeed with this grievance, the Union must establish on the balance of
probabilities that the Investigator job Mr. Holder held in the early 1990’s for 19 months is the
same job as the Senior Investigator position. The evidence contains two main aspects that are
particularly relevant to this central issue. One aspect is the co-existence of the Investigator job
and the Senior Investigator job within the SIB through the 1990’s and up until February 2004
when the Investigator position was effectively eliminated. The investigator jobs in the SIB were
excluded from the bargaining unit until 2004 when the parties agreed to include the Senior
Investigator job in the bargaining unit as of May 2004. The other aspect of significance is the
implementation of Bill 15 in December 1995 which eventually changed the nature of the SIB and
the duties of employees engaged in the investigation of fraud. After considering these features of
the evidence in light of all of the evidence, I am satisfied that the Investigator job Mr. Holder
held for nineteen months in the early 1990’s is not the same job as the Senior Investigator job
that was posted in 2010.
[10] Mr. Holder began his employment with the WSIB in March 1978. He has held a
number of positions in the organization. The position at issue here is the non-bargaining unit job
of Investigator in the Special Investigations Branch (“SIB”) which he held during the early years
of the SIB. The SIB was created in June 1992 and was evolving as a Branch when Mr. Holder
became an Investigator. Mr. Holder was seconded to this job in late 1992 after he successfully
competed for the job, along with approximately eight other employees. In addition to Mr.
Holder, some of the original employees at the SIB as Investigators were Kevin Reed, Suzi Snow,
Alex Pearce and Gary Riemer. The Investigators were provided with five to six months of
training and then commenced their duties as Investigators. Mr. Holder had little difficulty
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passing the 30 calendar day trial period. His secondment to the Investigator job ended in July
1994 when he returned to his previous position as a Claims Investigator.
[11] During his time in the Investigator job, Mr. Holder was engaged primarily in three
complex internal investigations, but he was also involved in some external investigations. For a
period of time Mr. Holder took direction from and assisted Kevin Reed and Suzi Snow. In a
Performance Evaluation dated October 21, 1994, his Manager, Mr. T. Penney, described his
duties as follows:
Gary has been involved primarily in the investigation of matters/files that result in briefs
being prepared and presented to the police. The briefs, in most instances, have resulted in
the laying of charges under the criminal code. In other instances, where the investigation
did not require charges under the criminal code Gary has been responsible for preparing a
closing memorandum. As manager I was responsible for reviewing these reports.
The main focus of Gary’s assignments have been internal investigations. These
complicated investigations have required a thorough knowledge of the WCB and its
information systems. Gary has worked very closely with other departments within the
WCB, including the Internal Audit Branch. He has completed a number of assignments
with and for the Metropolitan Toronto Police (Metro).
Gary has also been involved, to a lesser degree, in the file reviews of the regional offices.
Finally, in addition to completing his own assignments, Gary has also worked closely and
assisted other SIB investigators and management, particularly myself, regarding a
number of assignments.
[12] It appears that the Investigator job had more than one level during the early 1990’s.
In a memo to his Manager in March 1994, Mr. Holder refers to his being offered a permanent
position as a Level 1 Investigator in the SIB in December 1993. I note that Mr. Holder’s
decision not to accept a permanent Investigator position was based on financial considerations.
Conceding that he did not know much about the SIB in the early 1990’s since he did not join the
Branch in Toronto until 1997, Mr. Johnson indicated that there were three investigator positions
in the early 1990s: Investigator at salary grade 556; Fraud Investigator at salary grade 557; and,
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Senior Investigator at salary grade 558. I was not provided with job descriptions for the
investigator jobs in the SIB for the time Mr. Holder was in his seconded Investigator job.
[13] Moving ahead to the time when Mr. Johnson had direct knowledge of the
investigator positions, there were twelve Senior Investigators at pay grade 558 hired during the
summer in 1997. These individuals were selected on the basis of their extensive investigation
background. At the time these Senior Investigators were hired, there continued to be four
Investigators at pay grade 556 namely, Kevin Reed, Suzi Snow, Alex Pearce and Gary Riemer.
These were the individuals that were Investigators along with Mr. Holder in the early 1990’s.
[14] By November 1997, the pay grades for the investigator positions changed. The
Investigator job was changed to pay grade 718. The Senior Investigator job moved to pay grade
720. Job descriptions with November 1997 dates for these investigator jobs were filed with me.
The Investigator job description with a salary grade of 718 is dated November 14, 1997. The
Senior Investigator job description with a salary grade at 720 is dated November 21, 1997. The
individuals in each of these jobs are engaged in the investigation of fraud. Without detailing
each job description, it is clear that what distinguishes these jobs is experience and knowledge in
the investigation of fraud which in turn allows the individual to perform a team leadership role in
fraud investigations. As one would expect, the Senior Investigators are the investigators that
have acquired the greater knowledge and experience in investigating fraud and have the ability to
lead a team consisting of Investigators or other Senior Investigators. As Investigators gained
experience and knowledge, they had the opportunity to eventually move into a Senior
Investigator job. Alex Pearce and Gary Riemer did become Senior Investigators in 1999. Kevin
Reed and Suzi Snow did not become Senior Investigators until January 2004. These later two
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colleagues of Mr. Holder’s when he performed the Investigator job took essentially twelve years
before they had gained the experience and knowledge to move into the Senior Investigator job.
They were the last two to fill the non-bargaining unit Investigator job before the Senior
Investigator job was moved into the bargaining unit in May 2004. Once in the bargaining unit,
the Senior Investigator job was given a salary grade at 885. As noted previously, this is the same
salary grade of the Senior Investigator job that was posted in 2010. There has not been a
significant change to the Senior Investigator job since it became a bargaining unit position in
May 2004.
[15] In his application for the Senior Investigator position, Mr. Holder included the
Investigator job description with a salary grade of 718 dated November 14, 1997. He testified
that the job duties and responsibilities set out therein are consistent with the Investigator job
duties and responsibilities that he performed in the early 1990’s. He also testified that the job
duties and responsibilities set out in the 2010 posting for the vacant Senior Investigator job with
a salary grade at 885 reflects the essential duties of the Investigator job that he performed in the
early 1990’s.
[16] The history of the investigator jobs in the SIB illustrates that there were two distinct
jobs of Investigator and Senior Investigator for many years before the Senior Investigator job
came into the bargaining unit in 2004. The Union’s claim that “an investigator is an
investigator” is not borne out in circumstances where there have been at least two distinct
investigator jobs in the SIB for many years. The two jobs at issue here are not merely different
in name. The Senior Investigator job is for employees that have acquired the greater knowledge
and experience in investigating fraud and who can take on a team leadership role in complex
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fraud investigations. In order to prove in these circumstances that Mr. Holder held the “same
job”, it is incumbent on the Union to demonstrate that he held the Senior Investigator job and the
duties and responsibilities that it entailed.
[17] The evidence about the investigation duties Mr. Holder performed for nineteen
months in the early 1990’s clearly indicates that they fell within the Investigator job. Mr.
Penney’s description in the Performance Evaluation of the work Mr. Holder performed, Mr.
Holder’s testimony about his duties as an Investigator and the fact that his investigator
colleagues remained Investigator’s for many years before becoming Senior Investigators indicate
that Mr. Holder did not perform the duties of and hold the job of Senior Investigator when he
was in his seconded job investigating fraud in the early 1990’s. The conclusion that he did not
hold the Senior Investigator job in the past means that he can not be deemed a Qualified
Candidate for the posted vacant position of Senior Investigator in 2010. This alone provides the
basis for the dismissal of Mr. Holder’s grievance.
[18] Even if the evidence had established that Mr. Holder had held a Senior Investigator
job in the early 1990’s, there would still be an issue as to whether he would be entitled to
Qualified Candidate status in this instance. The Union’s position is that Mr. Holder did hold the
Senior Investigator job in the early 1990’s and that there has not been a significant change to the
job since then. However, Bill 15 brought with it changes to the SIB and to the nature of both the
Investigator and Senior Investigator jobs. Instead of investigating fraud and then handing a
matter over to the Police for prosecution under the Criminal Code, as was the situation when Mr.
Holder was an Investigator, investigators during the latter part of the 1990’s began playing a
greater role during an investigation and in the prosecution of offences under the Provincial
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Offences Act (“POA”). For example, the job has evolved such that a Senior Investigator is now
required to: obtain a cautioned statement from an accused consistent with the Charter; prepare a
comprehensive Information to Obtain a Search Warrant; plan, lead and execute a search and
seizure in accordance with the POA; work with private surveillance providers and incorporate
surveillance evidence in briefs; and, commence proceedings by laying a Part 111 Information in
Provincial Offences Courts. These changes to the job are more than process changes. Senior
Investigators come to the position with the skill set to perform these functions. These are duties,
amongst others, which Mr. Holder was not required to perform when he was an Investigator with
the result that he would require more than refresher training to perform the job of a Senior
Investigator in 2010. Contrary to the Union’s position, there have been significant changes to
the Senior Investigator job since Mr. Holder was investigating fraud in the SIB in the early
1990’s. These changes occurred before the Senior Investigator job was brought into the
bargaining unit in 2004, when the obligations of the Employer under article 6 did not apply.
These significant changes would also have affected Mr. Holder’s claim for Qualified Candidate
status for the Senior Investigator job in 2010.
[19] For the foregoing reasons, Mr. Holder did not acquire Qualified Candidate status
for the posted Senior Investigator job by virtue of his having held the Investigator job in the early
1990’s. Accordingly, Mr. Holder’s grievance dated September 29, 2010, is hereby dismissed.
Dated at Toronto, Ontario this 25th day of February 2014.
Ken Petryshen, Vice-Chair