HomeMy WebLinkAboutWei 03-07-03'~Jul-30-ZO03 1~:1Z From-RWBD 41~3409250 T-411 P.002/015 F-3~O
IN THE MATTER OF AN ARBITRATION
BETWEEN
SENECA COLLEGE
(the "Employer")
- and -
ONTARIO PUBLIC EMPLOYEES SERVICE UNION
(the "Union")
AND IN THE MATTER OF A GRIEVANCE
OF MR. TERENCE WEI
[02F031; 2002-0561-0001]
(the "Grievor")
BEFORE:
C. Gordon Simmons, Chair
Mr. Bob Gallivan, Employer Nominee
Ms Sherrill Murray, Union Nominee
APPEARANCES ON BEHALF OF THE EMPLOYER: Mr. William LeMay, Counsel
Ms Jane Wilson, Manager of Recruitmen$ and Support Services
Ms I{im Stewart, Program Manager- Students & Technolo97
Ms Kavita Cuhiba, Director of Employee Relations
Ms Rachel Arbour, Student-at-Law
APPEARANCES ON BEHALF OF THE UNION:
Mr. John Brewin, Counsel
Ms Janice Hagan, Chief Steward, Local 5Sl
Mr. Rod Bemister, President, Local 561
Mr. Terence Wei, Grievor
Mr. Xavier Lopez, Incumbent, representi~ag himself
Hearings into this matter were held in Toronto, Ontario on February 13,
April 16 and 30, 2003
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This grievance involves a layoff and bumping :rights. The relevant articles in the
Collective Agreement read:
:15,4.3 BumpL~g Procedure
The employee so identified ~hall be assigned by the College to the first
position deterr-,-med in accordance with the follo~ng se~ence:
- to a v~c~¢ posi~on in their classification pro~ded he/she
sati~fac~o~y p~o~ the core duties ~d respons~flities of ~he job.
there is no such position ~hen;
- ~o a vac~ posi~on in the sa~e payband pro~ded he/she
satisfac~ob2y peffo~ ~he core duties ~d responsibilities of the job, If
~here is no such position ~hen;
- to the position held by ~e most j~ior employee ~t~n ~s~er
payb~d ~ro~ded he/she c~ satisfa~o~y pe~o~ ~he core duties ~d
respons~ies of the job ~d he/she has ~e~ter se~o~y. If there ~ no
such posit~en then;
- to a vac~ po~i~ion in the Daybed ~th a m~ r~te o ne lower
the employee's o~ payb~d pxo~ded he/she c~ sati~acto~y peffo~
~he core duties ~d responsibilities of the job. M xhe~'e is no such
position tke~;
- to ~h~ posk~on he~d ~y uhe mos~ juror employee ~ the payb~d ~h
~i~um ra~e one lower ~han the ~mp]oyee's o~ payb~d prodded
he/she ¢~ $~sfacto~y pe~o~ t~e co~e du%ies ~d respons~1~ies of
the job ~ he/she has ~ea~er
paybands have been renewed in descen~g o~der of m~ ra%e
~d ei~e~ a yacht position or a po~i~on held by a more j~or employee
is identified ~d ~e ~mployee ~e~ed can satis~aczo~y pe~o~ the
core duties ~d respons~ties of the ~o~. ~ no suc~ position
identified ~he employee sh~l be l~d off,
~5.4.7 Fa~zation Period
I~ is ~derstoed that the College is not re.red ~o ~r~ an employee for a
position in;o w~ch he/she may be assigned p~su~t to ~icle !5.4.3, but
~he College sh~ pro. de a reason~le pehod o~ ~a~li~zar~on where
necess~.
The fac:s axe as follows. The grievor had been employed in the Grounds
D~parzrn~nt as a General Maintenance Worker. His position was au the payba~.Ld 5 level.
Upon being bumped from that poskion he sought to btn-np into the position of Technician
A itu the English Language Instkute (ELI). That position was likewise in payband level
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5. He was interviewed by Ms Kim Stewart, program manager - students and technology
of the ELI, who decided the grievor did not meet the necessary .,;ldlls to perform the core
functions of the sought-after position and refused to accept him. He grieved that
decision.
Mr. Xavier Lopez, the incumbent in ~he soughs-after position, attended the hearing
and was given a full opportunity to participate in these proceedings.
It would appear that on paper the grievor had the necessary qualifications for the
position. He received a Bachelor of Civil Engineering f~om the Shenyang Axclfitec~ural
& Civil Engineering Institute, Shenyang, China. Fro~.~ 1982-1990 he was employed as
a Civil Engineer ir, Shenyang. From 1990-1992 he worked as a Site Manager and Civil
Engineer for the China State Constr~ction & EngJ_~eering Corporation in Gaborone,
Botswana. Between 1992 and 1996 he was employed by the Francistown Town Cotmcfl
as Chief Technical O~cer mFrancistown, Botswana. t~[e moved to Winston-Salem, North
Carolina in 1996 where he was employed as a waiter at the Sichuan Palace Restaurant
until 1998 when he moved ~o Ontario and became employed at Seneca College. His
initial employment at Seneca College was ir~ the h~temational Student Department
where his resume sta~es his duties were he (ex. 2, tab 7):
· Provided assistance services for international ~udents, in¢ladmg airport
pick-up, housing assistance and home stay,
· Dealt with travel arrangernen~ for local touxs and extended excursions
~uch as transportation and ho~el a¢commoda'~ions
· Providec~ translation services for intemationa~ stuclen~s anct :raining
groups in orientation, training programs, banking services and setting
procedures
· [nvolved in student visa acquisitions through Buffalo Irnm~gra:ion Post
· Ensured the students received prompt and ¢oumeous sen, ices
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The griever was bumped from the International S~udent Depa~raent position to
the Grounds Department. His resume states his skills include:
Laag-uage: Fluent in English and Chinese
Computer; E~ficiency in Auto ¢.,~g~ R14, Microso~ Word, Advanced
Excel and Access
As stated earlier, the griever's paper qualifications would appear to clothe him
with the necessary skills To perform the core functions of The position.
The panel was provided wi~h a copy of the "Position Description Form" (FDF) for
"Technician A" which con;ains an outline of the duties and responsibilities which read
as fo]/ows (ex. 2, tab 6):
A. POSrl/ON
The incumbent performs a v~fie~¥ of techn/ca/ Tasks in the
maintenance and operation of the Multi Med/a coznputer labs in the
EngLish Language Institute. He/she provides demonstration and
supervision on th~ correct u~e and operation of both h~rdw~re and
sof~ware in the la~s a~d ensures that students are completing
assigned work.
B. PUT/ES AND RESPONSIBILITIES Approximate
% of T~me
Annually
Supervision o~ IndividuaLized Lab Periods 80%
- clemonstrates correct ~:echniques fo~ %%se of
equipment ~nd sof~ware
- under direction of ~he technologist
faculW, ~nsuzes that s~udents a~e
¢on~ple~Lng uheir assigned work and
in the specified time
- unde~ direction of :he technologist,
maintains student records of activity in
the lab
- ~ransfer grades ~or i~d/vidualized mazks
2, Equipment Maintenance 15%
- set~ up new equipment
- ensures ~h® labs ~re c~eaned
-:epo~s equiprnen~ feiluze and maintains
equipment, r~cords
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- performs minor repa/rs as directed by the
technologist
3, Other duties as assigned 5%
- assis~in~ with special projects
TOTAL 100%
Mr. Rod Bemis~er, local union president, /s a technician at payband 8 hu the
English Language Institute. He testified the students enrolled in the Institute are mainly
of Chinese descent. They comprise approximately 80% of the population. The remaining
20% is made up of Korean students (10%), Spanish-speaking students comprising
between 7-8%, wi~h the remaining students coming from differen~ parts of ~he world.
The mother tongue of ~he Chinese students is either Mandarin or Cantonese with
Mandarin be/rig the domLuant language. The students are newly arr/ved in Canada and
~_re here on student visas.
The technicians monitor the s~udents' progress in their homework assignments
as assigned by instrac~ors.
Mr. Bern/stet walked the panel through what the technician's role is during the
orientation stages of the study program. There is an or/entation program which
illustrates v~rious rules to be followed (such as no iood or drink or cell phones to be
Taken in~o the lab) and needs (such as an Engl/sh dictio.~ary, headphones and
rn/crophones) (ex. 4). Next the su~dents are shown an example exercise shee: which
d/rects s~uden~s through a certain exercise. Once the student has finished ~he list of
exercises contained on the exer¢is~ sheet s/he raises one's hand a~d the technician
checks ~he work ~o see if it has been completed. There are other rol~s the technician
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performs in assisting students in the operation of the computers and in carrying out
minor repairs.
Ms Stewart, the program direccoz, testified on behalf of the employer. She
explained in greater de~a/] what, in her view, comprised the duties and responsibilities
of the Technician A position and expanded upon where Mr. Bernister left off. She sra~ed
that the incumbent's main responsibiliw is to ensure the students in the individualized
lab setxing complete the ~a~ks as assigned by faculty. The incurnben~ must also be able
to can7 out certain repairs to The hardware and software, such as:
· repair floppy drives that have faltered
· find screen errors
· repair/replace microphones that fail to function
· repai~ keyboards
· transfer new images to the haxd drive
· change ha_rd drive
· set up new machinery/equipment ~hat are introduced into ~he lab
According to Ms Stewart the 80% portion of the technician's duties and
responsibilities as reproduced on p. 4 above require him to be able zo show the student
how To g@t into the menu; to assist him in the exercises they are required to perform; and
to be able to demons%-rate r_he proper techniques to be followed in use of computers, This
final point is important as many students come into the program without any keyboard
experience. It is also impo~an~ for a technician To be able to assist students in the
operation of computers. For example, the Institute uses Wixtdows as its operating
system. The technician must be familiar with its use (such as copying files clisk to disk)
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and while a technician is not expected to be able to change it he is expected to know
how it works.
Also, a technician must be familiar in the use of the Intemet and in the use of the
various search engines that are available. While the College uses Google there are other
engines available such as Yahoo and Licos. The technician must be able to conduct
searches and to use key words in limiting those searches,
While the above narrative is incomplete, the panel is of the view iT is sufficient to
demonstrate the general nature of what is expected of a ~ecb. nic:ian in the performance
of his duties and responsibilities.
Turning now to the events surrounding this grievance. Ms Stewart was informed
by Ms Jane Wilson, manager of recruitment and support services, that the ¢[rievor had
been declared surplus and the Employment Stability Committee (art. 15.3) had, after
considering The grievor's background, recomrnended ~he grievor be assigned To The
Technicis.u A position in ELI. Ms Wilson testified she understood the reasons for the
Committee's recommendations to the Pzesident were based on the grievor's ~esume
(ex. 2, tab 7) wherein it stated he had efficiency skills in Microsoft, Excel, Access, and
Auto CAD R14.
Ms Wilson informed Ms Stewa_~ she could quesQon ~he grievor and assess his
practical skills. Wtfile the Committee was of the view it was a cjood match, Ms Wilson
informed Ms S~ewart it was her decision whether or no~ ~he grievor possessed ~he skills
to satisfactorily perform the core duties and responsibilities of the posifiom In ~he event
Ms Stewart considered ~he grievor would not be a proper match after meeting with him,
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she was to convey her reasons for deciding to reject him to Ms Wilson who in turn would
convey her reasons to The union.
Ms Ste~vart and the grievor met in Ms Stewart's office on Monday, March 4. They
had spoken over the phone ~he previous Thursday or Friday. Ms Stewart made notes
during the interview (ex. 10), There were at least two items during the interview that
caused Ms Stewart concern. The lab had approximately 50 computers, In order to
maintain consistency with the image on all screens there is a device known as
"ghosting" which is an image stored on a file server. The image is moved onto each
computer to ensure consistency and to have a safe network er. Lvirorm~ent. The grievor
was not farm/iaz with the term *'ghosting" and informed Ms Stewart that one should not
move images because in doing so it might cause viruses To appear, Ms Stewart informed
the panel the grievor was incorrect in this regard. One never moves a virus and it is
rnos~ irnporcanr to ensure the image is virus ~ree before moving it.
Another.area of concem was a question Ms Stewaxt asked ~he grievor over what
he would do if he discovered a floppy disk ~o be fu/1, She testified he responded by
saying that "while sometimes they become full it's true but he didn't know how to deal
with ~he problem." Ms Stewar~ ~estified she expected a technician to determine if the
problem was a full floppy or not, If it was not full she would expect the techrdcian to
save the student's file then help the student troubleshoot the disk ~o solve r/qe problem.
The grievor ~vas ~_~nfs_n-iiliar with ~his process,
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Another area of concern to Ms Stewart was when she asked him to perform two
exercises on a computer. The first was a.r% assignmen~ for him to "find five sites that are
useful to ELI students on the restaurant ban of smoking in Toronto. Printout the sites".
Ms Stewar~ testified her purpose in having the grievor conduct a search on the
In:emet was to demonstrate to her that he could help students do Internet seazches. He
printed the result of his search but none related to the question asked. He retrieved
information/Yom British Columbia and Calgary, All0ert. a as well as a document prepared
by Health Canada and one on safe work concerning second-hand smoke (ex. 2, tab 4),
bu: none of the search results focused on the restaurant ban of smoking in Toronto.
The second exercise was to "type a formal letter addressed to me detailing your
skills and especially how they relate To this position" (ex. 2, tab 5). The grievor wrote the
letter by using "hard returns". That is, he used the computer in the s~ne m~nner one
would use an "old typewriter" method. According ~o Ms S~ewarc's evidence, he
apparently hit "enter" when he got to the fight-hand side of the screen thereby
proceeding to the next line. In fact, he was using the Word p~ogram as a typewriter
instead of as a word processor.
When the grievor was finished Ms Stewart asked him to prin~ the letter and save
it to the disk. She picked due prin:ed letter from the printer but unfonumately [he grievor
was unable to save the letter to the disk which resulted in Ms Stewart having to show
him how to do it. Ms Stewart informed the pe_uel that it is a requiremen~ to be able to
save floppy drive images as students do iT daily. It is unacceptable for a technician not
being able ro show students how ro retrieve it. Furduer, the job postiug sta~ed it
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required excellen~ written and oral communication skills and while Ms Stewart
suspected the grievor ran a spell check on the lette:r he typed there were a number of
errors m spelling in the letter such as "Shenyang" on line o~]e whereas it is spelled
"Shengyang" on line two. Other spell~g and grammatical errors occur in the body of the
letter,
Ms Stewar~ res%tiffed [he grievor took approxLmately one hour and fifteen minutes
to perform the two exercises on the computer. She stated she conducted a search on the
restaurant smoking ban in Toronto and retrieved t. housands of sites in less r. han a
minute. She also ~esfified r. ha~ she decided the grievor was not qualified for the position
after taking into consideration all the factors in r~he letter, the Inl;emet search, and some
of his answers to her questions during the interview.
The issue to be determined is whether the 9'rievor is ~;ntizled to a reasonable
period of familiarization as set out in art. 15.4.7 of the collective agreement. Counsel for
both pardes provided the panel with a number of previous decisions in suppor~ of their
respective positions.
The following cases are in support of the union's position: Ca~aHi..
~4rbitration Cases (3rd) - Seniority 6:2330, December 2002; Loyalist College and OPSEU
(StrethenO, 1999, unreported at p. 14; Canada Forgings Inc. and CA 14/£oca1275 (1992), 29
LAC (4th) 438 (Ham~); OPSEU and Ministry of Environment and )~nergy (Bazinet), 1997
(Mikus), GSB #12@8/95; Re Computing Devices Canada Ltd. and Employees' ,4ssocfation
(~994), 41 LAC (4th) 47 (Emrich); Re St. Catharines General Hospital and Service Employees'
Union, Local 204 (197~), 10 LAC (2d) 258 (G. Adams); Re Saskatchewan Health Care
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Associates and S,U.N. (1994), 45 LAC (4th) 33 (Priel); ~e Le.,J~ox'.iJndustries anti GrSFI~4,
I, ocal ?255 (1983), 12 LAC (3rd) 241 (Kermedy); E.E. Palmer, Collectt've Agreement
Arbitration hr Canada, 2nd Edition al: 517; Re }t/bite Farm Equip~nent Canada I. td. and U,4tF,
Local 458 (1982), 9 LAC (3rd) 380 (Rayner) at p. 383; Re Maple Le. afMills Ltd. and UFCI;F,
Local 5300 (1993), 31 LAC (4th) 385 (Sprin~Tare).
Th~ ~rnployer provided the panel x~zil:h the following authorities in suppor~ of its
position: St. Clair College and Ontario Public Service Employees Union, unxeporl;ed, 13 June
[959 {P. Picher); Fanshawe College and Ontario Public Service Employees Union, unreporl:ed,.
22 SeptemJoer ~993 (M. Picher); Re Gabriel of Canada Li'd. and Internatiot~al Associations of
Machinists, Local 2295 (1978), 20 LAC (2nd) 168 (Kates); Re CampbellfordMemorialHospital
and Canadian Union of Public Employees, Local 2247 (1998), 7~ LAC (4l:h) 434 (K~nned¥);
Sheridan College and Ontario Public Service Employees Union, ur~.eported, 2 Maxch 1998
(Bendel); Seneca College of Applied Arts and Technology and Ontario Public Service Employees
Union, unxeporced, 23 FeBruary 3.996 (Oarnpbell}; R,~. Hamilton Street Railway Co. and
Amalgamated Transit Union, Local 1585 C[$97), 64 LAC (4th) 2~4 (Levinson); "The Scope
of 3ffbi~al Review," Brown & Beater, Canadian Labou.eArbitration, 3rd Edition, ¶6:3~00;
Re Consumers Glass and Ahtminium, Brick and Glasswork,rs International Uniolt, I. oca1269G,
61 LAC (4th) 304; Re International Union of Electrical, J~adio and Machine Workers, Local 542
andRCA Victor Co. Ltd. (197~), 22 LAG 329 (Simmons).
Whge tho foreGoinG d~ci$ions have Been carefully considered in our deliberations
the result, in our view, is largely dependen, on the facts and l:he interp:etadon that we
have placed on ~hose facts.
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As a starting point i~ is recognized that an employee who is assigned to a position
pursuant to art. 15,4.3 is entitled to a reasonable period of farr~liarization (15,4.7). t~ut
az~. 15.4.7 contaLus a caveat in the words "where necessary". A.rt. 15,4,3 stipulates the
employee is to be assigned to a position enumerated in the article "provided he/she can
satisfactorily perform the core duties and responsibilities of the position".
Ar~. 15.4.3 appears to have a threshold requirement for rile grievor to cross before
he is entitled to a reasonable period of fan'dliazization. Can he satisfactorily perform the
core duties and responsibilities of the position? O-n paper he appears to satisfy the
requirements. But Ms Stewart decided he did not possess ~he necessary skills to satisfy
the core test. Ms Stewaz~ took issue with his grammar skills; although he espoused
years of experience at the computer, his word processing skills: would require training
to learn the proper technique in this category; the "sea~ch on the Intemet" and the
ab/liW to refine the research ~vas also critical to assisting a student in the lab. I-Ils lack
of familiariw with other aspects of the dudes and responsibilities of the position such as
"ghosting" and assisting students in problem solving were other factors that led to
Ms Stewart's decision to reject his being placed in the posir~on.
In the panel's view, ~he language of The collecti'~e agreement allows ~he employer
the ability to assess, on a basic and pze/lrr~nary basis, whether the employee who
intends ~o bump into another position has the skills to satisfactorily perform the core
duties a_ud responsibilities of ~he position.
After having had an opport~_m~ty to carefully rev~,ew uhe evidence and sub:missions
of the paxties the Panel concludes Ms Stevcart's decision to not accept the gnevor into
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the position was not ur~reasonable. The grievor failed to satisfy her he could
satisfactorily perform the core duties and responsibi. Lfties of the Techn/cian A position
Ln ELI. She believed he would require more tha~ a reasonable period of familiarization
before he could perform the core duties and responsibilities of the position, qT~e Panel
cloes not disagree with her assessment. Afortiori, it was not necessary to provide the
grievor with a reasonable period of famgiarization.
The grievance is therefore dismissed.
Dated a; Kingston, Ontario, this 3rct day of July, 2003.
C. Gordon Simmons
Chairperson
I concur~dissent Bob Gallivan
Bob Qalljvan
Employer Nominee
I concur/dissent "See Attached Addendum"
Sherrill' Murray -"
Union Nominee
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Addendum
It was very apparent that Mr. Wei has the capability of learnin9 this position. It was a/so
evident that the others who worked in the department would assist Mr. Wei. However
The language of this collective agreement does require that in order to hump another
bargaining unit member from kis position the grievor must be able to perform the core,
basic duties.
It was apparent that Mr. Wei would have to learn both the basic technological aspects
oft. he job and the minimal level of the software involved as opposed to "familiarize" him
to the position.
While one can appreciate tha~ English is not Mr. Wei's first language and that his ability
to speak Chinese may have been considered a superior asset by some students, his
· ability in both ora/and written English needs improvement.
If the job requiremems had placed greater emphasis on his maturity, knowledge of
Chinese culture and abilir? to welcome students, there could be no doubt this member
wou/d have awarded ~he job to Mr. Wei.
Although Mr. Wei would no doubt have become an asset to ~he department,
management acted within its right to deny him the position.
Sherrifl Murray