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HomeMy WebLinkAboutStanley 05-01-07 IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT -and- IN THE MATTER OF AN ARBITRATION BETWEEN: CONESTOGA COLLEGE - The Employer -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION - The Union AND IN THE MATTER OF THE GRIEVANCE OF JOHN STANLEY OPSEU GRIEVANCE #2003-0238-0001 BEFORE: Kathleen G. O'Neil, Chair David Guptill, College Nominee Ed Seymour, Union Nominee APPEARANCES: For the union: Caroline V. ("Nini") Jones, Paliare, Roland John Stanley, Grievor For the Employer: Ted J. Kovacs, Hicks, Morley Donna Runions, Manager, Labour Relations and Classifications Michael J. McClements, Associate Vice President Schools of Engineering and Information Technology, Trades and Apprenticeship, Woodworking Centre of Ontario Hans Zawada, Chair, Trades and Apprenticeship For the Incumbent: David Schmidt on his own behalf A hearing was held in Kitchener, Ontario on April13 and September 9, 2004 AWARD This decision deals with the grievance of John Stanley contesting the employer's failure to award him the position of Technologist C pursuant to a March 28, 2003 posting. It is the union's position that in denying the grievor an interview and thus the position, the employer failed to consider all the relevant facts and consequently acted arbitrarily and in contravention of the collective agreement. By contrast, the employer takes the position that the grievor was not qualified for the position as he did not meet the criterion of having excellent interpersonal skills, and therefore there was no obligation to offer an interview. The successful candidate, an external hire, was given notice of the hearing. He was present throughout the hearing, and was advised that he was free to participate if he chose. The Facts Aside from the core issue of the grievor's interpersonal skills, the facts are not in dispute. The grievor holds the position of Technologist B in the College's Trade and Apprentices program, where he has worked for about nine years. In this position he is responsible for the complex machinery and equipment used in the training programs for trades such as millwright, plumbing, and carpentry. The function of the Technologist C, by contrast, is focussed on assisting faculty members in the apprenticeship program, by maintaining facilities and inventory supplies, demonstrating practical skills and safe use of equipment to students, and providing input into the development of instructional plans. The college estimates that 85% of the work of the Technologist C is involved in interaction with other employees, compared to less than 10% for a Technologist B. The Technologist C position would have been a promotion for the grievor, and it is common ground that he is qualified, except for the dispute over the level of his communication, interpersonal and leadership skills. There have been issues about the grievor's interpersonal skills going back to 1999, when he was denied a Technologist C position for the first time. Since then, there have been a number of occasions on which the employer has responded to the grievor's interactions with others with counselling and discipline. For instance, on May 18, 2000, a memorandum was issued to the grievor concerning inappropriate interventions with students and failure to work cooperatively with some faculty. On July 20, 2001, the grievor was suspended as a result of several incidents regarding inappropriate remarks to students and faculty, some having racial or sexual content. This was grieved, and a settlement was reached at a hearing held on February 7, 2002, which reduced the suspension and recorded the fact that the grievor denied making some of the remarks attributed to him. A few days after the settlement, on February 11, 2002, the grievor "lost it", initiating a verbal altercation with a faculty member who had been subpoenaed to testify at the hearing. This incident attracted a further suspension, which was grieved. Although this last incident of discipline was fourteen months old at the time of the posting, the arbitration hearing had been held just a few months before, on January 9, 2003. At that hearing, the grievor maintained that he had done nothing wrong. However, the Board of Arbitration, chaired by Arbitrator Thorne, found otherwise in a decision dated April 3, 2003, the day before the competition for the Technologist C position closed. The five-day suspension in question at that hearing also covered an allegation that the grievor had ignored instructions and not turned a grinder off, which was not made out in evidence at the hearing. For that reason alone, the suspension was reduced to three days. As to the disputed factual issue of the level of the grievor's interpersonal skills, the grievor testified that when he came to the College after 25 years in industry, he did not realize there were any problems with his interpersonal skills, but having been disciplined, he has learned otherwise, and has taken courses to develop his skills in this area, starting in 2000. At the hearing before us, the grievor described the February 11, 2002 incident as a "momentary loss of common sense", which made him realize that there was a problem that he would have to work harder on, and that he needed to express himself with more forethought. Nonetheless, on cross-examination, he agreed with employer counsel's suggestion that although he conceded it was a mistake, what he had done was not wrong. The College's witness was Michael McClements who, as Dean of the School of Engineering Technology, Trades & Apprenticeship at the time of the application, made 2 the decision not to give the grievor an interview. He testified that he had turned his mind to the fact that the grievor had had more than a year discipline free. However, he viewed this against the background of the grievor's history of being counselled and agreeing to behave in a cooperative manner with faculty, and then being involved in similar issues at a serious enough level to attract discipline again. He mentioned that lengthy periods had gone by earlier without discipline, and then there were further incidents. He had seen no evidence of significant improvement and thus felt that the grievor was still not qualified in the area of excellent interpersonal skills. Even though Mr. McClements works at a different location than the grievor, and only saw him a handful of times a year at work, he was aware of the grievor's background from having issued the discipline outlined above, and from attending the hearing in January, 2003. He was also aware that the grievor had completed a management development program by the time of the application. However, he felt that the courses were not having enough effect on his behaviour. As well, he considered that the fact that the grievor had worked as a faculty member in 1995 before obtaining the Technologist B position did not outweigh the other considerations, as that work occurred prior to the letter of counselling and subsequent discipline. He could not remember if he had looked at the grievor's resumb submitted in response to the posting, when making his decision. He had no first hand information about how the grievor was interacting with faculty at the time of the posting. There is no evidence that Mr. McClements consulted anyone else before deciding not to give the grievor an interview. The other evidence before us about the grievor's level of interpersonal skill near the time of the decision not to grant the grievor an interview concerns the grievor's performance appraisal from 2003. It shows that Mr. Zawada, the manager to whom the grievor reported, was still of the view that the area of interpersonal skills needed more improvement even at the Technologist B level. It was his view that the grievor was unpredictable in this area. The grievor did not agree with this portion of the assessment and wrote a response indicating that he thought the issues had been addressed, and did not continue to be a problem. He thought he was doing well, having had no further incidents, and having completed the ©ntario Management Development Program (©MDP) given by the College. In this program, he had received very high marks for all his courses, a number of which had helped him problem-solve with groups and deal with problems with other people with the least amount of antagonism possible. Submissions of the parties and Conclusions Union counsel argued, and we accept, that the role of a Board of Arbitration in cases such as these is to see to it that the collective agreement has been complied with, as held in Great Atlantic and Pacific Co. of Canada vs. Canadian Food and Allied Workers Union, Local 175, (1976) 76 CLLC para. 14, 056 at 332 (Div'l. Court). The disposition of the grievance before us flows from a finding on whether the employer breached the provisions of Article 17.1.1 (set out below) of the collective agreement, which turns on the answer to two questions which arise from that wording: Did the grievor have the necessary qualifications and experience to fulfill the requirements of the position? Further, did the College base its determination on the grievor's application on those qualifications, experience and seniority in relation to the requirements of the vacant position? The second question includes the question of the sufficiency of the procedure used by the College. Turning first to the question of the grievor's qualifications, as noted, the only necessary qualification that is in issue here is "excellent, communication, interpersonal organizational and leadership skills". The evidence of the union was aimed at showing that the grievor had those skills, and thus should have been offered the position. Counsel underlined that the grievor has taken positive steps to remedy any previous deficits bY enrolling and successfully completing the management development course. Further, she noted that the grievor had shown his excellent interpersonal skills, including his ability to be an active listener, in his evidence before us. The union argues that the prior discipline should not be considered an indication that the grievor was not qualified at the time of the posting, as enough time, fourteen months, had gone by since the last occasion of discipline, there being no evidence of problems of any kind in the interim. Any problems with interpersonal skills should have been considered remedied. Further, the fact that the scheduling problems inherent in the arbitral process resulted in a hearing almost a year from the discipline itself should not extend the time that the discipline is considered relevant. The union argues that by focussing on the incident of over a year earlier, the employer cut itself off from more current relevant information, and denied the gdevor the benefit of Article 17.1.1 of the collective agreement, which provides as follows: When a vacancy occurs and employees within the bargaining unit at the College apply, the College shall determine the successful candidate based on the qualifications, experience and seniority of the aPplicants in relation to the requirements of the vacant position. Where the qualifications and experience are relatively equal, seniority shall govern, provided the applicant has the necessary qualifications and experience to fulfil the requirements of the position. It is not disputed that if the gdevor were qualified, he should have been awarded the post, as he was the only internal applicant. Thus, there is no question of comparing the relative qualifications of the grievor and the incumbent, as the College was required to assess the grievor as an internal applicant before any external applicants as provided in Article 17.1.1.1, which reads: All applications will be acknowledged and all applicants who are interviewed will be notified of the outcome of their application and the name of the successful internal applicant, if any. The college will not interview applicants from outside the bargaining unit until it has complied with articles 17.1 [the posting clause] and 17.1.1 above. The College will not consider applicants from outside the bargaining unit until it has assessed internal applicant and notified them of the results. Union counsel also made reference to Article 16.4 which reads as follows: 16.4 Removal of Notices from file Each employee may, once each calendar year, request the removal of a disciplinary notice that has been in his/her official personnel file for more than one (1) year. The removal of such notice shall be at the discretion of the College. Such discretion shall not be exercised unreasonably. Although counsel acknowledges that the removal of letters is discretionary, she suggests that the one-year period gives an indication of the time period in which the discipline should be considered less relevant. The union also argued that the discipline in February 2002 was dramatically different, and much narrower than the earlier discipline. It involved no issues with students, violation of procedures, or inappropriate interventions about human rights, just an inappropriate and heated exchange with a faculty member. Where the employer sees a pattern of inappropriate behaviour, the union sees a pattern of marked improvement and the effective working of progressive discipline. Counsel urged the panel to consider all the things the employer did not, and to find that the grievor has excellent interpersonal skills, having moved on and improved. The employer, by contrast, argues that it complied with the collective agreement in finding the grievor unqualified. Counsel focuses On the fact that, in the College's view, the incident and discipline in February 2002 showed the grievor to be seriously deficient in interpersonal skills even at the lower level required by the Technologist B job. The intervening period with no discipline does not remedy the situation, in the employer's submission, especially given the grievor's position just a few months before the posting, that what he did was not wrong. Management acknowledges as well that the grievor has made efforts to improve his skill by taking the OMDP program. However, the employer points out that he had begun the courses in this program before the suspension in 2001. We are urged to find that the discipline-free period should not be considered equivalent to having progressed to the level of excellence in interpersonal skills required at the Technologist C level. In considering the evidence and argument on the subject of the level of the grievor's interpersonal skill at the time he was denied an interview, it is appropriate to note that a precise measure of the necessary level to be considered qualified is not possible, because of the intangible nature of interpersonal skills. And "excellent" must be taken in context of the actual workplace demand of the position at an entry level, not the ideal or most skilled or experienced employee. Nonetheless, it is clear from the evidence that the Technologist C position is more demanding, in the sense of requiring many more interpersonal interactions that might test one's skill in this area, than the position currently held by the grievor. Thus, it is not a given that a level of skill in this area sufficient to "stay out of trouble" in the Technologist B position is enough to warrant being considered qualified as excellent in interpersonal skills at the Technologist C level, even at the entry level for that position. We agree with the jurisprudence to the effect that a prior disciplinary record can be considered in the context of a promotion, where the record reflects upon the employee's ability or qualifications, but that the weight of relevant prior discipline diminishes over time. See, for instance, Fanshawe College and OPSEU (Grievance of T. Miller), an unreported decision of a panel chaired by Jane Devlin, dated June 14, 1990, and the decision of the Ontario Crown Employees Grievance Settlement Board in Ontario Liquor Board Employees Union v. Ontario (Liquor Control Board) (Sam grievance) [2000] OSGBA No. 5 (Dissayanake). On the facts before us, the prior discipline is directly relevant, as the incidents in question were ones demonstrating poor interpersonal skills for the workplace setting. And the question here is not whether the discipline was ever relevant, but whether the intervening period without discipline shows that the grievor should be considered as qualified for the higher-rated position. It is clear that, for the employer, this is not the case, and it appears that any mitigating effect of the discipline-free period was marred by the grievor's testimony at the January, 2003 hearing concerning the last incident. In evaluating the evidence and argument on this point, it is appropriate to take account of the fact that the grievor was engaged in an adversarial proceeding challenging the discipline, which affects the weight of this evidence as an indicator of potential job performance. Although a hearing is an opportunity to display interpersonal skills, of a sort, it is not designed to be a job interview, nor is it the same as actually performing the job functions. However, given that insight into one's own behaviour is an important element of excellent interpersonal skills, we do not find it to have been an irrelevant consideration for the employer to weigh the fact that the grievor still did not see anything wrong with the behaviour for which he had been disciplined. The nature of the February 2002 incident, coming so close on the heels of the settlement of the previous grievance would properly have been considered as indicative of the fact that the grievor did not "get it" in terms of how he had to behave towards others at the College, and the testimony in January 2003 gave the impression, no doubt, that this had not yet changed. However, if actual performance on the job were consistent with the grievor's having achieved a level of interpersonal skills appropriate to the Technologist C job, despite the doubts planted by the testimony, that testimony would not by itself be a reliable basis on which to find the grievor unqualified. As to the union's request that we take into account the grievor's manner of giving evidence before us, we did find the grievor to be quite articulate about his situation, and we have no reason to doubt that he has learned a lot from his management development courses. He acknowledged that his original style of doing things needed changing, and testified persuasively that he is determined to make the necessary changes to progress at the college. As well, he feels that he has dealt with the problems raised in the past and that he should now be considered to have made sufficient progress to be promoted. It is the amount of progress made which is at the heart of the dispute here. The evidence indicates that, compared to the earlier incidents, the grievor's year and two months discipline-free represents very significant progress. However, in the view of the majority of this Board, the evidence, on balance does not make it clear that he should be considered to have gone the distance necessary for the more demanding Technologist C position. Mr. Stanley's performance in this area had not been just a little short of excellent in 2002, but very unsatisfactory. A suspension of three days, the level upheld for the February, 2002 incident, is not a minor penalty; there was quite a distance to go from February 2002 to get back even to a neutral position. In this regard, there is no time limit after which the discipline is automatically spent, either in the collective agreement or the jurisprudence. And although union counsel relies on the one year period for requests for removal of letters, one could just as easily say that the 2000 settlement of the posting grievance suggested that the parties had agreed that two years was the appropriate length of time for maintaining excellent interpersonal skills. But it is really unnecessary to specify a time period. The more important point is that there is not positive evidence which gives a basis on which to find that the higher level of skill had been achieved. Given the history here, the majority of this Board is not prepared to find that the employer was wrong that fourteen months was not a sufficient time period to establish that the grievor was ready for a larger challenge to his interpersonal skills. As to the grievor's work since 2002, there are two sources of information: the discipline free period, just discussed, and the April 2003 performance appraisal. The latter discloses that there was still a large difference in perception between Mr. Stanley and his supervisors about his level of performance in the interpersonal area. Even taking Mr. Stanley's rebuttal as diluting the weight of Mr. Zawada's remarks on the appraisal, we do not have such clear evidence of unproblematic interpersonal skills that we are persuaded that the employer was arbitrary or wrong in its assessment. We found Mr. Stanley to be a sincere and straightforward witness, but his evidence does not prove that the college was wrong or unreasonable on this point. Interpersonal skills are a subject on which reasonable people can, and often do, differ. The fact that Mr. Stanley does not share the College's view is not a sufficient basis on which to make a finding of fact that the grievor was qualified in this area at the higher level required for the Technologist C position, in the absence of other evidence contradicting that of the College. We turn then to the issue of whether the College made its determination as required by the collective agreement, which includes the question of the sufficiency of the process itself. The union submits that the evidence shows that the process was fundamentally flawed in that the College took nothing into account other than the discipline on Mr. Stanley's record and did not even grant an interview which would have provided the occasion to get more current information. Further, and more specifically, when the College answered the grievance at the second step, Mr. McClements' reply refers to the September 12, 2000 settlement of the grievor's earlier posting grievance, which contained the following paragraph: The College agrees to give John Stanley the first technologist C posted vacancy, for which the grievor applies and is qualified and has the seniority, which becomes available after May 15, 2002, provided John Stanley demonstrates in the period from May 15, 2000 to May 14, 2002 that he has excellent interpersonal, communication and team skills. Such demonstration shall be deemed to satisfy any requirement for excellent interpersonal communication and team skills in respect of the above- noted position. Should incidents of poor interpersonal, communication or team skills occur subsequent to May 15, 2002 and prior to a posted vacancy, these incidents may be relied upon. The response goes on to say that it is the college's position that he has not demonstrated these skills between May 15, 2000 and May 14, 2002, making reference to the discipline on file, as demonstrating that the grievor did not meet the qualification of excellent communication, organization and leadership skills. The union submits that this shows that the College was focussed on the settlement, rather than the current, regular posting process. For the union, this amounts to a fundamental error, the failure to conduct a regular posting process as contemplated by the collective agreement. For its part, the union is not relying on the settlement, but submits that the grievor should have been allowed to demonstrate his qualifications in the regular hiring process. Union counsel submits that the effect of the College's focus on the settlement was to impose a requirement that the grievor demonstrate his excellent interpersonal skills in the period specified in the settlement (2000 to 2002) in order to be considered qualified in this regular posting process in 2003. Counsel underlines that if this were the case, the grievor could be forever barred from promotion by the 2002 discipline, an unfair result. Further, the union submits, referring to Greater Niagara General Hospital and ONA, (1997) 60 L.A.C. (4th) 288 (Devlin), that there was a general failure to carry out a balanced assessment of the grievor's application, in that the employer failed to consider his resume, application, the courses he was taking, the improvement in his behaviour, the fact that he had been discipline free for over a year, and the grievor's ongoing work in another town. An interview would have been one way to ensure that all these things were considered. Failure to interview where the grievor is qualified on the face of the application is a fundamental flaw in the union's submission. By contrast, the employer's position is there was a balanced assessment, given the situation where the previous discipline had been tested at arbitration and was relevant to the qualifications and that at best the situation was a shrinking problem of discipline. Further, employer counsel underlines that the union brought no evidence of current working relationships. Counsel refers to an unreported decision, considering the same collective agreement language, of a panel chaired by Michael Bendel in the case George Brown College and OPSEU (Grievance of Kamal Gocool) dated May 24, 1994, for the proposition that there is substantial discretion in the employer as to what specific procedure to adopt, and a Board of Arbitration should only interfere if the process was unfair, unreliable or unreasonable. There are two aspects of the process used by the employer which ar.e, at least initially, quite troubling, in light of the legitimate expectation referred to in the jurisprudence that an employer will consider all the relevant and available information in such a process. See for instance, the Greater Niagara General Hospital case, cited above. Firstly, the lack of clarity over whether the grievor's resumb was even read by Mr. McClements 10 does not inspire confidence in the thoroughness of the process. Similarly, there is no evidence that any information as to the grievor's actual work performance after February 2002 was taken into account. It appears that the union is correct that the employer's focus was on the discipline, and its meaning for the grievor's level of skill in the interpersonal realm. All of this might be reason to re-run the competition, were it not for the effect of other facts peculiar to this case. For instance, the above-noted settlement includes the fact that the parties agreed in writing that Mr. Stanley was qualified for the Technologist C position except for the question of interpersonal skills. This means that in a context where he was the single internal applicant, the only question left for the employer to answer in order to determine his qualifications, as required by the collective agreement, was whether the grievor had skill in the interpersonal area at the level required by the Technologist C position. Thus, the fact that there was not a thorough going review of the grievor's experience and qualifications in the area of courses taken, or previous experience, for instance, is not problematic, in our view. As in the Fanshawe College cited above, it is not a breach of the collective agreement to fail to consider something, where the facts that would have been clarified by considering certain facts or documents (in that case performance appraisals) were not in dispute. Further, as to the union's submission that the employer's decision makers were confused as to whether the issue was whether the grievor should just be slid into the job pursuant to the settlement, or whether a regular posting process was to be conducted, the second stage reply does focus on the provisions of the settlement, and the fact that the grievor had not demonstrated excellent personal skills during the period May 15, 2000 to May 14, 2002. However, any confusion in this respect had been clarified by the time of the third step reply where the Director of Human Resources notes the union's point about wanting the "normal" competition process, and that the grievor was not asking to be just "given" the job. Her reply is that, based on the documented evidence in the file, there was a lack of excellent interpersonal skills, for which reason the grievor failed to qualify for an interview. Further, and more importantly, the evidence does not establish that Mr. McClements was focussed on the settlement at the time he made the decision not to grant an interview. There remains the question as to whether the failure to give an interview or to consider his more current performance amounts to a breach of the collective agreement. This would be the case if these omissions indicated that the employer's determination was not based on the grievor's qualifications as to interpersonal skills, as required by the collective agreement, that being the only issue in dispute of the factors set out in the collective agreement. The evidence before us concerning the grievor's April 8, 2003 performance appraisal and rebuttal is instructive here. This evidence is closely contemporaneous to the posting process, and as noted above, indicates that the grievor's supervisor was still of the view that progress was needed in the area of interpersonal skills in the jOb of technologist B, with its less frequent interaction with staff and students. This effectively counters any suggestion that the grievor's chances would have improved if Mr. McClements had asked the grievor's supervisor about his current performance. It is fair to note that the evidence does not make it clear whether Mr. McClements did or did not consult Mr. Zawada or someone else working with the grievor; it was to the effect that Mr. McClements had no first hand knowledge of the grievor's then current performance. Further, it was not suggested there was any other source of evidence other than the grievor that could have established the error or arbitrariness of the employer's conclusions in respect of his level of qualification in the area of interpersonal skills. Given our finding above that, although straightforward, the grievor's evidence and opinion as to his current performance does not outweigh that of the College, the majority of this Board is not persuaded that it is likely that an interview would have yielded information which would have changed the employer's mind as to its view of the grievor's qualifications in the area of interpersonal skill, given their view of the severity of the previous incidents of discipline and its continuing implication. We have considered the comments of Arbitrator Simmons in Halton Adolescent Support Services and OPSEU (1994) 44 L.A.C. (4th) 129 to the effect that whether or not the grievor's views would have changed the minds of the decision-makers is of no moment. In that case the Board of Arbitration found that the fact that the decision-makers failed to consider all of the available information, including the grievor's own comments about his performance appraisals, before making their decision flawed the process and demonstrated that the decision was not made in a "fair impartial and consistent manner", the language of the collective agreement in that case. As well, the evidence established that the employer had missed information that might have influenced the result, an 12 important difference when compared to the facts of this case. Similarly, Re City Consumers Co-operative Society and RWDSU, (1993) 34 L.A.C. (4th) 44 (D.M. Browne, Nfld.) is distinguishable because the evidence convinced the Board of Arbitration that the grievor was in fact qualified, and should have been interviewed. We find the facts of our case more analogous to the George Brown College case cited above, where the evidence before the Board did not suggest that recourse to a broader database would likely have affected the result, and no breach of the collective agreement was found. As noted in the Liquor Control Board case, cited above, at para. 59, flaws in the process that do not prejudice the result may not result in a finding of a contravention of the collective agreement. It is regrettable that there was no interview granted, as the process would have inspired much more confidence, and the decision making process would have been more transparent to all concerned. However, the collective agreement does not require an interview, and we are not persuaded that the failure to grant an interview or inquire into the grievor's current performance cut the employer off from information which might have assisted the grievor. In short, we do not find that these aspects of the selection process prejudiced the result, or that the employer's determination was made on some basis, or in a manner, prohibited, by the collective agreement. To recap, in the unusual circumstances of this case, where the grievor was pre-qualified by agreement of the parties, in every aspect except interpersonal skills, the employer was entitled to limit its focus to that area. Therefore, it is the majority's view that the employer did not breach the collective agreement by failing to inquire more widely into the grievor's qualification for the job. As to the employer's focus on past discipline, it was an important indicator of the grievor's skill in the area of interpersonal skills. Their assessment, which was to the effect that progress had not been made to the level of excellence required for a Technologist C position, has not been shown to be wrong or arbitrary, although the grievor continues to hold a different opinion. As to the process itself, although it would have been far preferable if management had engaged in a process which gave a more comprehensive look at the grievor's application and performance since the last letter of discipline, and granted an interview, the majority is not persuaded that management breached the collective agreement in so doing, or that the grievor was prejudiced in this respect. Before leaving this matter, it is appropriate to acknowledge that the role of the previous discipline in the employer's assessment of the grievor's interpersonal skill level must continue to decline with time, if there are no further similar problems, and that our findings relate to the spring of 2003, and not the present, a period of time which was not in issue before us. For the reasons set out above, the grievance is dismissed. Dated this 7th day of January, 2005 Kathleer G. O'Neil, Chair I dissent (Dissent attached) Edward Seymour, OPSEU Nominee I concur David Guptil, College Nominee 14 IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT - and - IN THE MATTER OF AN ARBITRATION between CONESTOGA COLLEGE (The Employer) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF JOHN STANLEY OPSEU Grievance No. 2005-258-0001 DISSENT OF Edward E. Seymour, Union Nominee I have read the Majority Award and I must, with respect, dissent. It is my view that the College violated article 17: 1.1.1. of the Collective Agreement because it did not "assess: Mr. Stanley's qualifications for the job. I am in agreement with the majority that the only qualification over which there is an issue was Mr. Stanley's communications and interpersonal skills. It is obvious from the evidence that the employer declined to interview the griever for the posted position solely on the basis of his disciplinary record relating to incidents with students and faculty, the most recent of which occurred fourteen months before the job was posted. It is clear, in my view, from Mr. McClement's evidence in both direct and cross-examination, that little effort was made to "assess" Mr. Stanley's improvement in his interpersonal skills. There was also no Page 2 attempt by the employer to be specific about what it perceived to be the major shortcomings in Mr. Stanley's performance in this area. This was not an oversight. Mr. Stanley not only requested the performance appraisal, he also asked Mr. Zawada to be more specific about the areas in which improvement was expected. These specifics were not forthcoming. Arbitrators have been clear that when improvements are sought in job-related performance, the areas needing improvement should be specifically identified. In the Appraisal issued on 08 April 2003 (Ex. 9), Mr. Zawada did focus on interpersonal skills as a problem; he did so in these terms: "However, with respect to your personal relationship with program co-ordinators, faculty and support staff, much improvement is still required. At time you have demonstrated co-operation with other staff, while at other times you have not demonstrated the ability to work in a co-operative and effective manner with college faculty members, staff and students. This unpredictability, and the continuing difficulties demonstrated in working co-operatively with faculty and support staff is inappropriate. "John, while there has been some improvement in your working relationships with program personnel, I encourage you to continue to improve your judgement in addressing theses concerns." Mr. Stanley took issue with these remarks and, in an attachment (also part of Exhibit 9) stating that the problems which were brought to his attention "were addressed and remedied a long time ago--." In his evidence at this Hearing, Mr. Stanley stated that neither Mr. Zawada nor Mr. McClements offered any further details regarding the perceived shortcomings in his interpersonal Page 3 and communications skills. Given that Mr. Zawada was not called to refute Mr. Stanley's evidence, it can only be assumed that the employer had no significant concerns regarding that evidence. I am in agreement with the Majority's contention - page g - "that Interpersonal Skills are a subject on which reasonable people can, and do differ;" however, when differences occur between an employer and an employee, as is the situation here, it is incumbent upon the employer to define, in clear terms, what is expected. Mr. Stanley's request for specific details was not an unreasonable one, particularly when "some improvement had occurred." It would have been prudent for the employer to outline the areas in which Mr. Stanley had improved, and to detail those in which improvement was required. The employer did not do that. Further, when filling the vacancy, the employer took what can only be regarded as "an-anybody-but-Stanley approach," which I, personally, find very disturbing. I am in full agreement with the Union's contention that the employer took nothing but the disciplinary record into account when deciding not to grant the griever an interview. I take issue with the Majority's assertion on page 10 "that there was a lack of clarity as to whether the griever's resum~ was even read by Mr. McClements." On this point the evidence is quite clear. Under cross-examination Mr. McClements stated that he did not look at the resum~ in determining Mr. Stanley's qualifications for the job .... The last time he examined Mr. Stanley's resume was before 1999. He could not recall if it was in 1997. Assuming it was in 1997, that makes it approximately six years before the job posting. Mr. McClements was only "vaguely aware" that Mr. Stanley had taken courses, "directly related to improving his interpersonal and communications skills." He was not aware of the level of success attained in those courses, nor was he aware of the content. In his memorandum to the griever, dated 18 May 2000, Mr. McClements reviewed what had transpired at a meeting between him and the griever. In that memo, Mr. McClements wrote in part: Page 4 "As I stated during our meeting, without debating the merits of each incident, given the passage of time, I would prefer to look forward, and agree that in regards future conduct, the understanding is that we will experience a co- operative and mutually respectful working relationship with students, with full and part-time faculty members, fellow support staff members both full and part-time, and administrative personnel." Despite his stated preference "to look forward," it was clear from Mr. McClements' evidence before this Hearing in April 2004 that it was he, who continued to focus on "old transgressions." He had no appreciation of Mr. Stanley's efforts to improve, nor was he willing to acknowledge his progress in doing so. Given the evidence wherein the total focus was placed on the griever's 14-month-old disciplinary record, the failure of the employer to recognize his improvement, or to identify the shortcomings, if any, which continued to exist, I would have found that these transgressions of the employer entitled the Union, at the very minimum, to have the vacancy re-posted, together with a directive that the griever be granted an interview; I would have so ordered. Edward E. Seymour, Employee Nominee opeiu:343 File: OPSEUStanley.dis.wpd