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HomeMy WebLinkAbout1988-0016.Campbell.89-06-20 -- ONTAFtlO. EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO ~' GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS fao DUNDAS STREET WEST, TORONTO, ONTAR[O. MSG IZ8-SUITE 2100 TELEPNONE/T~_I.._~PHONE 1 $0, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 - BUREAU 2100 (416) 598.0688 16/88 MATTER OF AN ARBITRATIOI~ Under · THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Campbell) Grievor .. - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before: J.W. Samuels vice-Chairperson G. Nabi Member H. Roberts Member For the Grievor: N. Wilson Counsel Gowling & Henderson Barristers & Solicitors For the Employer: 'W. Emerson Employee Relations Officer · Ministry of Community & Social Services Hearings: AI~ARD This is our second award in this case. It deals with the appropriate remedy for the grievor: Anita Campbell, the grievor, is a Residential Counsellor 2 at the Midwestern Regional Centre. On November 23, I987, Ms. Y, Schieck, a Vocational Instructor at the Centre, went off on maternity leave for seventeen weeks. The grievor wanted an opp°rmnity tO try the work of a Vocational Instructor. There is no monetary difference between the grievor's regular job and that of the Vocational Instructor, but the grievor is interested in enriching her experience. Earlier in 1987, the Employer had posted three 'temporary vacancies for a Vocational Instructor when three other Vocational Instructors had gone off on maternity leave. When the first posting went up, the grievor was off on maternity leave. But she was back at work when the next two postings went up and she had applied for these two temporary positions. She was not chosen for the first opening for which she applied, and her application for the second positipn was thrown into the garbage by accident by management. (NOte: In our earlier award, we said that the grievor had applied for all three other temporary positions as a Vocational Instructor, and that she was unsuccessful each time. This was our error. In fact, the evidence introduced at our first day of hearing showed that she had made only two applications and only one of these application made it to a selection committee.) This time, the grievor hoped to replace Ms. SChieck. But the Employer chose not to post this fourth opening, and hired someone from outside the facility instead on a temporary contract basis. This new employee} Ms. S. J. Hammond, was initially hired for the seventeen weeks of the maternity leave, and then she was re-engaged for an additional six months when Ms. Schieck applied for and was granted an extension. Our first day of hearing took place before this six-month extension was over. In our first award in this matter, we decided that the Employer 3 had violated the collective agreement by failing to post Ms. Schieck's position and directly hiring someone from outside the bargaining unit to do the job. We then went on to say (at pages 9-10): By the time this award is issued, Ms. Schieck will be back at work. Therefore, even if the grievor should have been placed in the position had it been posted' (we. note that we have not made such a ' f'mding at this stage), there is nothing we can do.to give her an oppommity to do Ms. Schieck's job. Furthermore, there is no monetary difference between the grievor's regular job and that of the Vocational Instructor. In these circumstances, it is not clear that there would be any significant purpose served by reconvening to hear evidence concerning the gdevor's qualifications and ability to do the job. However, we will entertain submissions from the panics if one of them does waht us to reconvene, and if we do reconvene, we will hear argument concerning an appropriate remedy for the grievor in these circumstances, if she should have been placed in the position. The parties were unable to agree on an appropriate remedy for Ms. Campbell and we were asked to reconvene. In the interim, Ms. Schieck had resigned as of September 18, 1988. Ms. Hammond had stayed on in the position under contract. When the contract expired, the Employer posted a permanent position, for which the grievor applied. The grievor was not interviewed and someone else was selected. This decision was grieved and is proceeding to the Grievance Settlement Board. Before us, the Union is now seeking an order that the grievor be put in the next available temporary vacancy as a Vocational Instructor at the Midwestem Regional Centre. 4 The Employer responded that this Board should not contemplate making such an order. The Employer's argument is that, according to our decision in our first award in this matter, when Ms. Schieck went on maternity leave, the Employer had the option of posting the temporary vacancy, or assigning some other member of the bargaining unit to the position. Had the Employer chosen the first course of action, the grievor could have applied for the position, but there was no certainty that she would have been successful. Thus, her only claim was to be considered for the position, not to get the position. Had the employer chosen the second alternative, there would have been no violation of the collective agreement and the grievor would have had no fight whatsoever to the position. Thus, in either case, the grievor did not have a claim to the position itself, and it would not be.fight now to give her the position itself. In a preliminary ruling, we told the parties that: 1. Unfommately we cannot mm back the clock to put the parties in the position they were when Ms. Schieck'went on maternity leave. Therefore, necessarily, any remedy will be imperfect. We cannot restore the panics to the position they would have been in had there been no violation of the collective agreement, particularly because there are no definable monetary losses. If the grievor has lost anything, it is the opportunity to enrich her working experience. 2. Pursuant to section 19(1) of The Crown Employees Collective Bargaining Act, we have the power to "decide the matter". In our view, this-gives us broad power to fashion an effective remedy to suit the needs of our particular case. As the Ontario Divisional Court said in Regina v. Ontario Public Service Employees' Union et al (1982), 35 OR (2d) 670 (at page 675): In order to "dec~de the nmtter" at issue between the part~es, the Board had the power, pursuant to the wording of s. 18(1), to grant ~he job to an unsuccessful applicant in appropriate cireumst~mces. That is the clear mandate of the Board pursuant to s. 18(1) and the labour relations jurisprudence of rigs province. Our courts have interpreted other h~our relations legisla- tion in a consistent way h~ the pa~ in order to arm arbitration boards with sufficient weaponry to perform their responsibilities effectively. Courts.have been unwilling to ]hnit the remedial powers of arbitration boards so as to enfeeble them. On the contrary, our court~ have sought to ensure that arbitration boards can effectively bring about the final and binding settlement of all differences between the parties. 3. In our circumstances, we are prepared to order that ~he grievor be given the next available temporary job as a Vocational Ins~'uctor, if the grievor satisfies us that, had she been the only candidate on a posting for Ms. $chieck's position, she could have demonstrated that she had the "qualifications and ability to perform the required duties" (Article 4.3 of the collective agreement). 4. This would'mean that the Bmployer may lose the oppommiw to choose or assign a better candidate, if there is one, bur the prejudice £o the Bmployer would be minimized by the fact that · itwould be a temporary vacancy and the grievor.would have the necessary qualifications and ability to do the job. 5. It is necessary to give the §rievor a real remedy, given that she has es~zblished a violation of the collective agreement which affec~d her. We turn now to a consideration of the grievor's qualifications and ability to do the required duties of the Vocational Instructors job. A copy of the position specification is appended to this award. In a nutshell, the job requires that the employee have the skills necessary to deal with developmentally handicapped people, and the skills invoIved in the actual tasks for which the residents are being trained. The ,.'~ Vocational Instructor trains developmentally handicapped people to do various simple commercial tasks--assembly of parts, woodworking, and so. on. Seventy percent of the job is the actual training of the residents. A number of the tasks involve 'the use of hand tools and power tools, in · particular in the woodworking area. The grievor's testimony showed that she is an experienced and well- trained counsellor of' developmentally handicapped people. However, she does not have the training or experience necessary to teach the tasks which ! are the stuff of the Vocational Instructor's job. Woodworking is part and parceI of the vocational instruction offered at the' Centre. The grievor has some experience working with her father in his woodworking shop, and has undertaken various projects around the house. But she did not demonstrate sufficient qualifications and ability to satisfy us that she could train people in woodworking tasks.- The issue is .whether the grievor had the "qualifications and ability to perform the, required duties" of Ms. Schieck's job, which is described in the position specification appended.to this award. In our view, the grievor did not have these qualifications and ability. For'these reasons, we f'md that there is no further remedy to which the .- vor is entitled, other than our original decision that the Employer ~,'. '~ . · ated the collective agreement by failing to post the position and directly ... someone from outside the bargaining unit to do Ms. Schieck's job. ,...:... -. Position Specification VOCATIONAL INSTRUCTOR at Midwestern Regional Centre ~. PU,qPOSE OF POSITION raw, oo~s ~,ao.~'no~ ~x,$'r;, ~t~ ~ o~t~v~ ~ To ~evelop appropriate work sk~11s and b~av~ou~ fna group of develop~ntally hand~capped residents, in ayocat(onal setting consisting of contract ass~bly.~ woo~o~ing, payroll, sales and collating; to p~pa~'~s(dents, for co~unity workshop or p~ivate employ~nt placements by ~posure in Facility Serytces plac~nts; to assist tn the co-ordination and supervision of residents tn co~unity wor~ place~nts; to develop and matn~atn co~unity contacts to obtain 3. SUMMARY OF DUTI ES AND RESPONSlBiLITIES (iNO~T~ P~C;NTAGa O; TiME ~NT ON ~ ~ mmimic' m ~ ut tabl,e, workshop projects. I~;OI~TE ~E, EQUI~ENT, ~RKtNG ~NOITIO~ UN~A~ ~RE$ ~j In an institutional Vocational setting, the incu~ent has the ~sponsibiltty for: 1. Determining individual ~sident's vocational/occupational skills, needs and program objectives by: ~ - assessing and ~nitoring ~stdents vocational perfomance on a ~gular basis and maintaining accurate records of sam; - establishing (in concert with the vocational team) the vocatto6al goals and training progra~ for each resident;- - mco~nding {through multtdisctplinary p~ogram revi~ ~e'tin~) residents for placement into apmpmpriate training p~gra~ or Jobs in the facility or co~unity; - ~tntainfng up-to-date i,P,P.'s and I.T.P.'s on vocational residents. 2. Training a group of residen{s tn work skills and behaviours that a~ in keeping with the resident's individual needs and vocational objectives by: - scheduling ti~ for teaching work skills and maximizing his/her proficiency at work task~ through the u~e of effective training procedures. - developing occupational requim~nts such as safety awaren.ejs in the use of hand tools, operation of power equip~nt and tidiness of wo~ ama; p~6ctuality, consistent attendance and tolerance for work pressures, by applying accepted training and behaviour management techniques; - assigning ~sidents work tasks that allow for work skills being 'taught and/or the practice of acquired skills-~.- - promoting residents into Facility Services Jobs and into Co~unity employ~nt settings and assessing, monitoring, evaluating, supervising th~m..in these training a~as. ~ aid ~stdents tn the ~tion'of t~e(r W0~k Etaining progra~'by: ~ -'-' -- ~ - carrying out_tasEa~aly~(S,m.ti~ and ~tion. studies; .................... m ............... )% - aecem~n.lnt opt~ml training methods, ~°repartng ~stdents~. . attendance ~cords~ and p~. mll on. a .rog ular p marranged s che d ule', ~nspect(ng ~ qualtty of ~stdents wort, maintain(rig quality control and providing a breakdown of projects; . . r . . . observing all safety standards and practices, maintaining reasonabl· care of all e~utp~t and reporting ~ ~pat~/~plac~nts a~ ~quiredt .' . 4, Contributing to the total training program of facility res(dents a~ a member of individual program monitoring/treat~_nt team by: - attending multidisciplinary program team meetings and conferences [program, Annual, Special Review); ~ phoviding and sharing clear concise vocational assessments/information on residents · '-; at said. meetings; - ensuring that residents' [,P,P.;s, I,T,P,'s and Program/progress reports are complete and current; - ensuring that vocational training programs are integrated with programs Ueiiver,.,d oy othe~ seryt ce Departments/Areas; .... - problem So. lying to remediate training and management problem~ wit[t "difficult" residents both on s~te and off site. m 5, Perfo~ing other related duties such as: - - attending-.Istaff meetings and training/professional ~]evelopment seminars; - having meetings witlt res(dents as.required - assisting the entire Department C(~.g.' Recreation Section) in a variety of seasonal acti yities; - maintaining good comuntty liaison:" ? as assigned ......... - ...... _~$ AND KNOWLEDGE REQUIRED TO PERFORM THE WORK (S~ArE EOUC~I'mONo TRAINmNG. EXPERIENCE ETC.) '~uccessful completion of a two year Community Co]leg. course in vocational/occupational training or related instructional field or other Ministry course(s)in the same areas; experieno in.vocational or related program service delivery; demonstrated ability to understand and wot'< e. ffectively with the dev~opmentally-handicapped; leadership, resourcefulness skills and ~-~ personal suitabilILy.._.