HomeMy WebLinkAbout2013-0091.Robinson.14-12-11 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#2013-0091, 2013-0092
UNION#2013-0453-0001, 2013-0453-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Robinson) Union
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The Crown in Right of Ontario
(Ontario Tourism Marketing Partnership Corporation) Employer
BEFORE Ian Anderson Vice-Chair
FOR THE UNION Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Lisa Compagnone
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING December 8, 2014
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Decision
[1] This decision is issued in accordance with Article 22.16 of the collective agreement, and is
without prejudice or precedent.
[2] The issues to be addressed by this decision are set out in the following Agreed Statement of
Facts.
Background
1. Pursuant to article 22.16 the GSB issued a decision dated July 4, 2014, see
attached decision at Tab 1. In this decision the GSB identified for the
parties the preliminary issues in dispute, and directed the parties to work
towards agreeing on a statement of facts.
2. In its decision the GSB summarized at a general level that the Grievor was
laid-off in November 2012 from her Regular Part-Time position as a
Travel Counsellor (RPT-TC). Thereafter the Grievor applied for a Regular
Full Time position as a Travel Counsellor (RFT-TC) that had been posted
by the Employer. In or about February 2013 the Grievor learned that she
was not successful in the competition.
3. The Grievor provided two grievances to her manager on February 18,
2013, each dated February 15, 2013, see attached at Tab 2 and Tab 3.
4. The first grievance alleges that the RFT-TC Position should not have been
posted and that the Grievor ought to have been directly assigned to this
position as per Article 20 (redeployment grievance), see attached at Tab 2.
It is the Employer’s position that this grievance is out of time and thus,
should be dismissed.
5. The second grievance alleges a flawed competition was held for the RFT-
TC (competition grievance), see attached at Tab 3.
6. As outlined in GSB decision dated July 4, 2014, a mandatory requirement
for the RFT-TC position is written and oral French proficiency at the
advanced competency level. Accordingly, the GSB has directed that the
first preliminary issue is whether this requirement is a legitimate exercise
of management rights? If so, both grievances are dismissed. If not, the
GSB will determine whether the redeployment grievance is untimely. As
well, the competition grievance will proceed to the merits.
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Surplus of Grievor’s Position as a RPT - TC
7. The Grievor had been an employee with the Ministry of Tourism since
May 1, 1995.
8. From May 1995 to October 10, 2010, the Grievor held a seasonal position
at the Lancaster Centre from May 1 to Thanksgiving annually.
9. The Grievor’s most recent position was as a RPT – TC, with the Ontario
Travel Information Centre at the Cornwall Centre, Ontario Tourism
Marketing Partnership Corporation, Ministry of Tourism, Culture and
Sport until her layoff of November 30, 2012. Prior to her surplus the
Grievor was in this recent position for approximately 17 months (Dec 13,
2010 to May 31st 2012).
10. Both the seasonal position and the RPT-TC position were located at the
Travel Information Centres in designated areas of the province, in
Cornwall, a designated area pursuant to the French Language Services Act
at Tab 8.
11. During her employment as a seasonal TC and as an RPT-TC the Grievor
regularly communicated orally with clients in French but she was not
required to produce correspondence in writing. She would provide clients
with already produced French language literature if required and provide
quick handwritten notes for clients such as highway routes or attraction
hour operations/costs etc, but nothing that would require in depth
information.
12. The Grievor also understood that if there was a need for a written
document to be created in French that it would be her responsibility to
make the initial draft and then send it to her Manager who would in turn
forward to French Language Services for revision and editing, a service
internal to the Ontario Public Service. It would then be sent to her to
provide to the client or sent to the client directly. Over the course of her
employment the Grievor never had to create a written document.
13. The Travel Counsellor position has evolved and counsellors can be
required to translate correspondence and/or draft responses in French to
customer inquiries and provide instantaneous responses in French to
tweets or e-mails. As well, it should be noted that at some point after her
surplus the internal French translation service was no longer available, and
any request for revision and editing of French documents is sent for a fee
to an external translation service provided.
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14. On March 26, 2012 the Grievor was advised by Suzanne Rubinstein,
Director of Travel Information Centres that the Travel Information Centre
at 903 Brookdale Avenue, Cornwall Ontario was being closed as of April
30, 2012 and that her position was being declared surplus.
15. On May 15, 2012 the Grievor was provided with pre-notice that on May
31, 2012 she would receive formal notice of layoff from her position, see
attached correspondence at Tab 4.
16. On May 31, 2012 the Grievor received her formal notice of layoff which
identified her layoff date of November 30, 2012. The Grievor elected for
redeployment, see attached correspondence at Tab 5.
17. November 30, 2012, the Grievor was laid-off from the Ontario Public
Service and she had no further entitlement under the applicable collective
agreement.
Competition for RFT - TC Position in Bainsville
18. On November 13, 2012, Redeployment Services Office (RSO) received
for surplus clearance competition #47967, for RFT-TC # 51084, Ministry
of Tourism, Culture and Sport, in Bainsville, see job posting at Tab 6 and
job description at Tab 7. No employees matched to the position and thus,
RSO cleared the position for competition.
19. The RFT-TC position is in the Bainsville Office in a designated area, See
French Language Services Act at Tab 8. It was also a designated bilingual
position, see request to designate position at Tab 9
20. The Bainsville Office is the only travel centre in the designated area. There
are three positions in this office: Team Leader, RFT Travel Counsellor,
and RFT Travel Counsellor (des). The RFT Travel Counsellor position is
vacant.
21. Under the French Language Services Act, French-speaking Ontarians have
the right to receive provincial government services in French. See French
Language Services Act at Tab 8.
22. In June 2011 the employer implemented a “Staffing and Managing
Designated Bilingual Position- Practical Guide for Management”. This
Guide established that in the case of designated bilingual positions
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(French/English) the manager was responsible for ensuring that the person
who fills the position has the appropriate language skills. The Guide
provided management with practical tools needed to assess the level of
French required for a specific designated position. The Guide identified
four levels of proficiency for both oral and written skills, advanced minus
was the lowest level of proficiency. See Staffing and Managing
Designated Bilingual Positions: A Practical Guide for Managers at Tab 10.
23. The RFT-TC position in the Bainsville Ontario Travel Information Centre.
The Centre is located 1 km west of the Quebec/Ontario border in the
OnRoute Service Centre accessible only from Highway 401 Westbound.
This is the first stop for vehicles travelling into Ontario from Quebec and
the majority of the visitors who stop for service at this centre are French
speaking.
24. The RFT-TC position in the Bainsville Office provided the opportunity to:
respond to inquiries in person, by telephone and in writing; plan
customized travel itineraries and respond to consumer and travel industry
requests; research information from a variety of sources; represent the
Ontario Tourism Marketing Partnership Corporation at special interest
groups and tourist association presentations and showcases; update
publications and assist in the planning and delivery of training programs;
maintain reference files, complete inventory stocking and monitoring as
well as handle retail sales functions. See Job posting at Tab 6.
25. Pursuant to the job posting a mandatory requirement for the RFT-TC
position in the Bainsville Office was both written and oral French
proficiency at the advanced competency level, see job Posting at Tab 6.
26. November 14, 2012 the RFT-TC position was posted.
27. November 23, 2012 the Grievor applied for the position.
28. At some point between November 14, 2012 and November 23, 2012 the
Grievor spoke to her manager Ms. Ruth Parkes with respect to the French
Language requirement and she encouraged the Grievor to seek assistance
in preparing for the French Language skill test.
29. It is the Grievor’s evidence that Ms. Parkes encouraged her to apply and
advised that the Grievor could upgrade her French Language skills. It is
also the Grievor’s evidence that this had previously been done for Ms.
Debra Baker, a Team Leader.
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30. Contrary to the Grievor’s statements above it is the Employer’s evidence
that Ms. Parkes encouraged the Grievor to take the French language test as
it was a mandatory part of the recruitment process. When the Grievor did
not meet the required French levels for the position, Ms. Parkes notified
the Grievor that she would proceed to the interview stage and should she
be the successful candidate, would be placed in the role contingent on
meeting the required level within one year of the start date.
31. On December 13, 2012 the Grievor attended a French language test (oral
and written) in Cornwall. The test evaluation indicated that the written
requirement was for advanced minus; however, the job posting indicates
that the written requirement was for French at the advanced level. The
Grievor did not obtain the mandatory requirement of advanced level in
either oral and written French, see attached test result at Tab 11.
32. On January 15, 2013 the grievor interviewed for the job.
33. January 28, 2013 the Grievor was advised that she was not the successful
candidate.
[3] The documents referred to in the Agreed Statement of Facts were filed as exhibits. The
parties agreed that it was not necessary to resolve the conflict in evidence described in
paragraphs 29 and 30 for the purposes of this decision. The parties also agreed to stipulate
that while the posting indicated “advanced” level of French was required, candidates with
“advanced - minus” level would have been considered in the absence of successful
candidates who had advanced level French. This is reflected in a “Language Proficiency
Evaluation Request Form” sent to the third party service provider which administered the
test. The person submitting the form also provided the following as a “brief description” of
the job: “Front line service (99% verbal) promoting and providing travel information to
Ontario tourists.”
The French Proficiency Requirement
[4] There is no dispute between the parties as to the applicable analysis. It is set out in
Reynolds Aluminum Co. Canada Ltd., (1974) 5 LAC (2d) 251 (Schiff) (and has been
adopted in several cases of this Board provided to me by the parties):
In the ordinary exercise of management functions employers may
determine in the first instance what specific qualifications are necessary
for a particular job and what relative weight should be given to each of
the chosen qualifications. After the employer has made the
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determination, arbitrators should honour the managerial decisions
except in one or both of two circumstances: First, the employer in bad
faith manipulated the purported job qualifications in order to subvert
the just claims of the employees for job advancement under the terms of
the collective agreement…Secondly, whether or not the employer has
acted in good faith, the chosen qualifications bear no reasonable
relation to the work to be done…
[5] The Employer argues that there is no evidence that it acted in bad faith. Further it argues
that the French proficiency requirement was reasonable. The position was located in an
area designated under the French Language Services Act (“FLSA”) as one in which a
person has a right to communicate in French and receive services in French. It is close to
the Ontario - Quebec border and it is reasonable to infer that a large portion of the persons
who would be stopping at the Travel Centre requesting services would be French speakers.
An application was made to designate the position as bilingual. The Guide provides
guidance as to the level of French proficiency required. The Employer asserts that the
Guide was applied. In the result the job posting indicated that the position required
proficiency in both French and English, oral and written, at the “advanced” level. The
Grievor was tested and demonstrated “advanced - minus” level in her oral interview and
“Intermediate - plus”, which is lower than “advanced - minus”, on her written test.
Accordingly, the grievances should be denied.
[6] The Union argues that it was not a reasonable exercise of management rights to require
advanced level of French for the position given that the Grievor had successfully performed
the position at a geographically proximate location for 17 years. Given the Grievor’s
successful performance of the position, there was no basis to infer that a greater level of
French proficiency was required. The Employer acted in bad faith when it arbitrarily stuck
to the requirement for advanced proficiency and did not consider the Grievor’s 17 years of
experience and her day to day duties of communicating to persons seeking services in
French at the Travel Centre.
Decision
[7] There is no evidence of bad faith on the part of the Employer. There is no suggestion, for
example, that the required level of proficiency was established in order to exclude the
Grievor. Further, the Employer considered, by means of the test, whether the Grievor had
the required level of proficiency (obtained through her 17 years of work at the Travel
Centre or otherwise). The Grievor did not pass the test. Having established and posted a
required level of proficiency, it would have been problematic, if not a breach of the
collective agreement, for the Employer to have awarded the position to the Grievor over the
successful candidate on the basis of the Grievor’s past experience notwithstanding her
failure to demonstrate that level of proficiency.
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[8] The level of proficiency established bore a reasonable relationship to the work to be done
by the person in the position. The position was located in a designated area under the
FLSA. Therefore, it fell within an area in which persons have a right to receive services in
French and English. Further, the need for such services may reasonably be inferred from
its location at the Ontario - Quebec border. A request was made to “designate” the
position, specifically referring to the right to French language services guaranteed by the
FLSA and the lack of currently designated position in the area to provide those services.
The request states: “This position would provide services to both English and French
language speaking clients and responds to enquiries in person, by telephone and in
writing.” There is no dispute that the request to designate the position was approved.
There is also no dispute that the Guide was applied to determine the level of proficiency
required. The Guide contemplates levels of proficiency ranging from “advanced - minus”
to “superior”: “intermediate - plus”, the level of proficiency achieved by the Grievor on her
written test, is below the lowest level contemplated by the Guide.
[9] The Grievor’s experience of doing the job and the brief description of the job provided to
the testing service suggest that the ability to write, in French or English, was a very small
part of the position. It is easy to understand why the Grievor would be of the view that the
Employer was incorrect in its assessment that the position required the ability to write in
French at an advanced level. However, the position had evolved over time and the full
position description contained in the posting and in the Job Specification refer to a number
of duties which would require the ability to write including preparing reports, editing
tourism publications and communicating in writing. Given these duties, I am unable to
conclude that the ability to write in French bears no reasonable relation to the work to be
done.
[10] For all of the foregoing reasons, the grievances are dismissed. Accordingly, it is not
necessary for me to consider whether the redeployment grievance was untimely.
Dated at Toronto, Ontario this 11th day of December 2014.
Ian Anderson, Vice-Chair