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HomeMy WebLinkAbout1988-0057.Neary.90-09-17 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARiO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G IZ8- SUITE 2100 TELEPHONE/T~L~PNONE 180, RUE DUNDAS OUEST. TORONTO. '(ONTARIO) MSG 1Z8- EiUREAU 2100 (416) 598-0688 0057/88 IN THE MATTER'OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Neary) Grievor - ~nd - The Crown in Right of Ontario .. (Ministry of Agriculture & Food) Employer - and - M. Saltman Vice-Chairperson I. Thomson Member D. Andersen Member. FOR THE R. Stephenson GRIEVOR Counsel . Gowling~ Strathy & Henderson Barristers & Solicitors FOR THE S. Currie EMPLOYER Staff Relations Officer Human Resources Secretariat ~Management Board of Cabinet HEARING: March. 12, 13, 1990 AWARD In this case, the Grievor, Donna Neary, claims that the Employer. violated the collective agreement by placing her at the start rate of the salary grid for Farm Products Inspector 1. At the outset of the hearings in this matter, the Employer raised a p~eliminary objection to the arbitrability of the grievance.' The Board dismissed the objection in a decision dated December 6, 1988 and proceeded with a two-day hearing of the merits of the griev- ance. 'This award deals with ~he grievance on its merits. The material facts are as follows: sometime prior to May, 1985,. the Employgr posted a yacancy for the position of Farm Products. Inspector 2.. The job posting reads as follows: POSITION VACANC~ ONTARIO MINISTRY OF AGRICUI3TURE AND FOOD FRUIT AND VEGETABLE INSPECTION BRANCH FRUIT AND VEGETABLE INSPECTOR Farm Products Inspecto~ 2 $471.28 - $498.51 per week Schedule 3 OPEN Required by the.Ministry of Agriculture and Food, Fruit and Vegetable Inspection Branch, to perform regulatory inspections under the Farm Products Grades and Sales Act. Duties will include the inspection of fresh fruit and vegetables, and 2 maple syrup and honey products at the producer, wholesale, retail and processor level; investigating problems of non- compliance with the regulations and taking or recommending appropriate actions; supervising contract staff in the grading of processing fruit and vegetables; and conducting inspections of storage and packing projects under the Ontario Storage and Packing Assistant Program. LOCATION: Ontario Food Terminal, Toronto, Ontario Position involves some travel. QUALIFICATIONS: A good general knowledge of the produc~ tion, processing and marketing of Ontario horticultural products; ability to com- municate and work effectively with a wide variety~of people; tact; good judgement; and keen powers of observation. Such skills and knowledge are normally acquired through a combination of related exper- ience and formal agricultural/horticul- tural training. Applicants with the academic training but lacking the required practical experience may be considered for an underfill appointment. Please submit application no later than FILE: AF-41/85 Director Personnel Branch Ontario Ministry of Agriculture and Food Legislative Buildings Queen's Park Toronto, Ontario MTA lA4" It is clear from the posting that the essence of the job in question is to perform regulatory inspections of fruits and veget- ables and other produce. Apart from inspections, 'the ~ob also .entails providing advice on compliance with the regulatory scheme, as well as taking action, if necessary, with respect to non- compliance, which may include conducting investigations and participating in prosecutions of violators under the relevant legislation. There were several Applicants for the job posting, including the Grievor, who was at the time a member of the clas- sified service, and John Henderson, Who was an outside candidate. Interviews were held with the various Applicants, including the Grievor and Mr. Henderson. According to a member of the interview panel, Mr. Henderson appeared to be unprepared for ~he i~terview., and'also appeared to be lacking in confidence and enthusiasm for the job. The Grievor,. on the other hand, performed well in the interview and was ranked either second or third by all of the members of the interview panel. Ultimately, the Grievor was ,awarded the job as the A~plicant who ranked first on the com- petition · wa~ eliminated following a reference check. In accordance with its usual practice once a successful Applicant has been chosen, the Employer made'an assessment of the Grievor's experience and qualifications in order to decide at what level she would be appointed and where she would be placed on the salary grid. As the Grievor had no agricultural education or experience, no actual inspection experience and only limited know- ledge of the marketing of fruits and vegetables, the decision was made to appoint her at an ,underfill" level, i.e., at the FP 1 level, and to place her at the first step of the salary grid.· 4 Several months later, there was another posting for the job of Farm Products Inspector 2. Once' again, Mr. Henderson applied for the job. This.time, however, he displayed a positive attitude toward the interview. As a result, and in light of his experience and qualifications, Mr. Henderson was chosen as the successful Applicant on the 'job posting. As it had done with the Grievor, the Employer assessed Mr. Henderson's experience and .qualifications in order to determine at what level he would be appointed. The examination revealed (1) that Mr..Henderson was raised on a farm that produced potatoes and corn, which are commodities that he would be required to inspect as a Farm Products Inspector; (2) that he had experience as a Farm Operator dealing with both crops and livestock and, although the crops which were produced on the farm were not commodities which he would be required.to inspect, it was felt that this experience gave him an understanding of farming 'and farm issues. In this regard, Mr. H~nderson was also on the executiVe of a farming association; (3) that he had an Honours degree in Agriculture from the University of Guelph; and, finally, (4) that he had worked as an'Assistant Environmental Analyst with Ontario Hydro., which gave him experience ~in the preparation of reports and in the presentation of reports · at public meetings, and also experience in dealing with Farmers in controversial situations, i.e., in leasing back property which had been expropriated. It was felt that this experience prepared h~m for the type of confrontation he could encounter as ~ Farm Products Inspector. Although all o~ his experience was considered to be 5 relevant for the job in question, as Mr. Henderson had no knowledge of the marketing of fruits and vegetables and neither inspection experience nor a regulatory background, it was decided to appoint him to the job at the FP 1 (or underfill) level. However, taking into account his extensive agricultural experience and knowledge of farm issues, as.well as his education and work experience, Mr. Henderson was placed, at the second step of the FP 1 salary grid. Although at the outset of the reconvened hearings, the Employer once again objected to the Board's jurisdiction in this matter, this objection was ultimately withdrawn. In withdrawing the objection, counsel acknowledged that, in the course of admin- istering the pay pr. ovisions of the collective agreement, the ~ Employer has a discretion with respect to the initial placemen~ of employees..on the salary grid and that this disdretion must be exercised in a manner which is not arbitrary, discriminatory, unreasonable or in bad faith. In light of this acknowledgement, the issue to be decided is narrowed considerably and relates to the manner in.which the Employer exercised its discretion with respect to initial placement of the Grievor on the salary grid for Farm Products Inspector 1 and, specifically, whether the Employer exercised its discretion in relation to this matter in a manner which was arbitrary, discriminatory, unreasonable or in bad faith. The Union claimed that, in placing the Grievor at the first step of the FP 1 salary grid,' .whereas Mr.. Henderson was 6 placed at the second step, the Employer ~took into account an impermissible factor, namely, the Grievor's sex'or, in other Words, that the Employer exercised its discretion in a discriminatory manner. ~ The Employer'; on the other hand., submitted that'there was no evidence that it administered the pay provisions of the collec- tive agreement in manner which was arbitrary, discriminatory, unreasonable or in bad faith. In'fact, the Employer submitted that it 'took'into accouht the Grievor's experience and_qualifications in placing her at the first step of the FP-I salary grid. More- over, the fact that the Grievor was the successful Applicant 9n the 'first ~ompetition does' not necessarily indicate that her experience and qualifications were greater than'those of Mr. Hend- erson'as there were other factors'which were taken into account in the selection of the- Grievor. 'Indeed,. it was claimed that Mr. Henderson performed poorly on the initial interview and that it was for this reason that he was not chosen as the successful Applicant. In any event, the Employer submitted that'differeht considerations ~pply in the selection of a successful Applicant on a job posting th~n in the placement of an employee on the salary grid. But'even if the considerations are the same, it was submitted that the Employer made a proper assessment of the Grievor's. experience and qualifications and that, in view of the Grievor's lack of relevant education and experience, the decision to place her at the first step of the FP 1 salary grid was not unreasonable. By way of reply, the Union submitted that the same criteria apply to the selection of a successful Applicant on a job posting as to the placement of an employee on the salary grid; that the Grievor's experience and qualificati'ons were determined to be superior to those of Mr. Henderson, which leads to the inference that the decision to place the Grievor at the first step of the salary grid was based on an impermissible factor, namely, the Grievor's sex. It, therefore, must be found that the Employer discriminated against th'e Grievor on the basis of sex, which viol- ates the collective agreement. The issue then to be decided is whether~ th~ Employer violated the.pay provisions of the collective agreement in piacing the Grievor at the first step of the F~ 1 salary grid. The evidence indicates that following her selection'as the successful Applicant on the job posting for Food Products Inspector 2, the Employer made an assessment of the Grievor's experience and qualifications in order tO decide at what level she would be appointed to the job. Following this assessment, it was decided that the Grievor was not fully qualified at the FP 2 l~vel and, therefore, that she ought to be appointed at the FP 1 level and placed at the first step of the salary grid. There was no dispute as to the decision to appoint the Grievor at the FP 1 level. The only dispute was whether the Employer discriminated 8 against the Grievor 'in placing her at the first steD in the salary grid. Before determining this matter, it should be stated.that although it is improper to discriminate against employees.in the .administration of the pay provisions of the collective agreement On the basis of gender, it is perfectly proper to differentiate between employees based on permissible fDctors. In this case, it was submitted that the decision to place the Grievor at the first step of the FP I salary grid was based on an impermissible factor, namely, the Grievor's sex. In the Board's view, however, the evidence does not bear out this submission. The evidence estab- lishes (1)-that th9 Employer made an assessment of the Grievor's experience and'qualifications; that thi~ assessment was based on five factors, namely, formal education, agricultural background or experience, inspection experience, knowledge of the marketing of fruits and vegetablgs, and other work experience, all.of which factors were drawn in substance from the Farm Products Inspector 2 class standard; and (2) that these factors were taken into account'in assessing Mr. Henderson's experience and qualifications for the purposes of placement on the salary grid. Based on ~his assessment, the Employer determined that the Grievor should be placed on the first step of the FP 1 salary grid, whereas Mr. Henderson should be placed at the second step. According to the Union, the Employer discriminated against the Grievor in appointing 9 her at a lower rate than Mr. Henderson, who ranked below the Grievor on the first competition. In the Board's view, the fact ~that the Grievor ranked ahead of Mr. Henderson on the first competition does not necessar- ily indicate that her experience and qualifiCations were greater. In fact, there may be any number of reasons why an individual is unsuccessful on a job posting. 'In this Ease, the evidence indic- ates that Mr. Henderson performed poorly on the interview, which resulted in his being eliminated from the competition. When subsequently Mr. Henderson was able to perform well on the inter- view and put forward his experience and qualifications, he Was chosen for the job. Based on a comparison of Mr. Henderson's experience and qualifications (inclUding, it would seem, a strong background in farming, an Honours degree in Agriculture and exper- ience-in dealing with both Farmers and members of the general public in controversial situations)' with those of the Grievor (who had neither agricultural background nor education, limited know- ledge of the marketing of fruits and vegetables (Mr" Henderson had none) and no real inspection experience (Mr. Henderson also had none)), the Board.is unable to conclude that the appointment of the Grievor at the first step of the FP 1 salary grid was based on an~ irrelevant and~ impermissible factor, namely, the Grievor's sex. It should noted at {his point that although there was evidence submitte~ respecting the level at which other individuals were appointed as Farm Products Inspectors, that evidence was frankly i0 unhelpful. Suffice it to say that the evidence does not support the conclusion that females tend to be appointed at a lower ~ate than males on the FP '1 salary grind. In any event., there is no basis in this case'upon which to conclude that the Employer~dis- ~riminated against the GrieVor or otherwise exercised its discre- tion improperly in placing her at the first stgp of the FP 1 salary grid. The grievance, therefore, must be dismissed. DATED AT TORONTO, this 17thday of Sept~ember 1990. Vice-Chairperson, M. Saltman Member, I. Thomson Member, D. Anders~n