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HomeMy WebLinkAboutJovic 89-06-12BETWEEN: CAMBRIAN COLLEGE (The College) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF L. JOVIC - #88C092 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman D.J. Cameletti, College Nominee Wally Majesky, Union Nominee APPEARANCES: For the College: Paul Jarvis, Counsel Susan Pratt, Staff Relations Officer For the Union: Christopher M. Dassios, Counsel Louise Jovic, Local President #5805 - [15] AWARD A hearing in this matter was held in Sudbury, Ontario on May 15, 1989, at which time the parties were agreed that the board of arbitration had been properly appointed, and that we had jurisdiction to hear and determine the matter at issue between them. This dispute concerns a grievance filed by Ms. Louise Jovic on June 8, 1988, to the effect that the denial of her application for the job of Clerk D General in the Financial Aid Office at the College was improper. More specifically, the Union asserts that the requirement set out in the job posting for fluency in both official languages contravenes Article 14.4 of the collective agreement, and that the denial of an interview to Ms. Jovic on the basis that she lacked fluency in French was contrary to Article 17.1.1. The relevant provisions of the collective agreement are as follows: 14.4 Bilingual Policy Notwithstanding any official policy on bilingualism established at the College, no present employee shall be laid off from the College as a direct result of his/her inability to communicate in the French language. Recognizing that the College has the responsibility to determine the language requirements of any position, the College will, however, not unreasonably deny promo- tional opportunities to employees because of language requirements. Pursuant to Articles 4.2, 4.2.1, and 4.2.2 the Local Union may request a meeting and management will explain the reasons for the language designation. 17.1.1 Consideration - Bargaining Unit Employees When a vacancy in the bargaining unit occurs and employees within the bargaining unit make application for such vacant position, the College will give proper consideration to the qualifications, experience, and seniority of all applicants in relation to the require- ments of the vacant position. Notwithstand- ing the foregoing, where there is no increase in the complement of bargaining unit employ- ees in the Department within whcih the vacancy arose, the College may forego posting and fill such vacancy by appointing a qualified bargaining unit applicant from the Department. The history of this matter is not in dispute. The bilingual nature of Cambrian College is described in its current Calendar, at page 13, as follows: Each College was designed to be a regional institution, operating fairly autonomously under the direction of its local Board of Governors and to be responsive to the particular needs of the geographical district it is designated to serve. Besides the basic core programs in business, applied arts and technology common to most colleges, each College has developed unique and specialized programs that reflect the character of the College's district. For example, in 1975, the Cambrian Board of Governors designated Cambrian College a bilingual institution to serve the needs of the Francophone popula- tion. Since this designation and the formation of the French Language Division, the College's offerings have been expanded to the point that Cambrian is now the largest bilingual post-secondary institution in Northern Ontario. The College is now organized along the lines of two academic divisions, one of which offers programs essentially in English, while the other offers programs essentially in French. The Human Resources and Student Services Division, in which the disputed job is located, offers services to members of the College community in both official languages as required. Ms. Tina Sartoretto, the Registrar of the College, testified about the demographic realities of the College's place in the community. While some of the gross percentages which she used may not be entirely accurate, they are undoubtedly close enough for the purposes of this arbitration. The College's catchment area has a francophone popula- tion, for our purposes defined as those whose mother tongue is French, of somewhere between 30 and 50 per cent. The historical participation rate of the francophone community in post-secondary education has been significantly lower than that of the anglo- phone population, and part of the College's attempt to serve regional interests has been to increase that participation rate significantly. As a' demographic reality, the College does not expect growth in programs in English to be nearly as great as anticipated growth in programs in French, since the latter programs often constitute the first opportunity for post- secondary education in French in the region. Part of the College's attempt to expand French programs and francophone participation rates is carried out through outreach programs to the francophone community. This policy, however, must also be advanced inside the College, by ensuring that student services are reasonably available in French to w 4 -- students who require or wish them, since the availability of services in a student's mother tongue increases the student's comfort level with the institution, and enhances the probability of retention of current students and attraction of new students. At present, 834 of 3,050 post-secondary students at the College list French as their mother tongue. Of this group, 650 are enrolled in French language programs; the other students are enrolled in English programs, usually because a desired program is not yet offered in French. About 15 per cent of all adult education students are also taught in French, and some fran- cophones also take such programs in English, again often for the same reason. A significant, but unknown number of these students have no effective fluency in English. Over the last academic year, francophone post-secondary' enrollment increased by 8 per cent, while the overall student body increased by only 3 per cent. Preliminary figures for the next academic year indicate that this trend is expected to continue. The Financial Aid Department, which until recently was also responsible for a liaison function, has four full-time employees. The Manager, Financial Aid, a non-bargaining unit employee, is responsible for the operation. Reporting to him are the Financial Aid Officer, in the Support Services Officer classification, a Clerk D and a Clerk B. As far as official language skills are concerned, the Manager and the Clerk B are fluent only in English, while the Financial Aid Officer and the Clerk D (the person who was successful in the disputed job posting) are fluent in both French and English. We were supplied with position description forms for both the Clerk D and Clerk B position, and also with detailed evidence as to how the duties outlined in those forms are actually performed. It is not necessary for our purposes to review these duties in great detail, but we observe that an important aspect of the job involves advising students .on the availability of Various financial 'aid programs, including the Ontario Student Assistance Program (OSAP) and College scholarship and bursary programs. Administering the OSAP program involves answering questions from and giving advice to students beginning in May and continuing through the summer, usually with the assistance of a Student on a job placements' Forms are provided to the students to fill out, which require detailed financial information from the student, the student's parents and the student's spouse if applicable. The importance of completing this form correctly is indicated by the fact that a fine of $1,000 is provided for giving false information on the form. Moreover, while the form may quickly become routine to the employees in the Financial Aid Office, it would appear to be anything but routine to the student filling it out for the first time. Throughout the process of advising students, handing out the forms, receiving the returned forms, editing them for data processing and making inquiries from students, their parents and their spouses, the Financial Aid Office is in direct contact with students on a regular basis. At the beginning of the academic year, there is a period of time set aside for interviews with students at the time of providing them with their first cheque. This interview procedure is repeated in January when the second disbursement is made under OSAP. In the meantime, the College's own scholarships and bursaries are awarded, again involving the completion of a standard form which is then edited and assessed in the office. Advice is dispensed to students as required, and once the awards are made, students are informed of success in these competitions. The Union's position in this case is that the require- ment for fluency in French in the office is minimal, and that to whatever extent there is a requirement, that requirement can be met by the Financial Aid Officer, who is fluent in'French as well as in English. The Union argues that the grievor is entirely qualified for the job apart from the requirement for fluency in French, and that she should have been interviewed and considered in the competition without regard for the language requirement. If she succeeded on the basis of her other qualifications, the Union asserts, she should have been entitled to French language programs to permit her to achieve, over time, the requirement for fluency in French. We begin by observing that there is no question about the grievor's other qualifications to perform the job. The College did not question those qualifications, and we think it is fair to say that they appear to be of the same order as those of - 7 - the successful applicant. It is clear that the difference between the successful applicant and the grievor is that the successful applicant is fluent in both French and English, while the grievor is fluent only in English. We think that we can also reasonably conclude that, apart from communicating with students in the French language, the grievor would be entirely able to carry out the duties' of the job, even though some of the forms and some of the correSpondence might be in French. The forms and the correspondence are apparently extremely standardized, and the Clerk B, Leola Tucar, who is not fluent in French, is nevertheless entirely able to deal with the forms even when they are completed in that language. Indeed, Ms. Tucar has performed the duties of the Clerk D job on a temporary basis in the past, and was actually offered the Clerk D job when it came open on one previous occasion as a promotion without a competition. 'That offer, which was made by the Manager, was subsequently recinded by the Registrar on the basis that the job should be posted, and that the requirement for fluency in both languages should continue. We observe that fluency has not always been a requirement for the job in the past, and the job has been offered on at least one occasion to another person not fluent in French, who ultimately declined it for personal reasons. From all of this, we conclude that it would be entirely possible for someone not fluent in French to do the "office" part of the Clerk D job, even where the applicants being dealt with require service in the French language. The College tacitly acknowledges this, but asserts that the requirement for direct communication with students on financial matters, as well as further communication from time to time with parents and spouses, often involving sensitive financial and personal matters, needs someone who is fluent in the mother tongue of these students in order to provide appropriate and effective services, so as to enhance the comfort level of francophone students and thus further the College's mission in the francophone community. The parties agree that the effective provision of the collective agreement is Article 14.4, but they disagree as to how this provision is to be interpreted in this case. The College referred us to the award in Re Cornwall General HosDital and · Ontario Nurses' AssoCiation (1986), 22 L.A.C. (3d) 141 (Burkett), while the Union referred us to an unreported decision in Re Royal Ottawa HosDital and Ontario Nurses' Association, May 31, 1988 (Emrich). In the Cornwall General Hospital case, the majority stated that the test for qualifications established by an employer is that those "must be reasonably related to the work that he wishes to have done", subject to the following exception, found.at page 148: However, this analysis does not hold up when applied in the case of a language require- ment. Where an employer stipulates that the successful applicant for a particular position must have proficiency in a certain language the issue is not whether the candidate can somehow "manage" without the - 9 - language proficiency but, rather, whether the language requirement meets the test of legitimate business purpose. Surely an employer, in the exercise of its discretion to manage, has the right to assess the market-place and its customers' needs and to decide if a bilingual capacity is required. If it is proven that such is the case and the employer has not acted in an arbitrary or discriminatory fashion, then, in our view, the language capability becomes a requirement of the job. On the other handf in the Royal Ottawa Hospital case, the majority considered the Cornwall General Hospital test, but appears to have adopted instead the somewhat more stringent test in Re McKeller General Hospital and Ontario Nurses' Association (1984), 50 L.A.C. (3d) 353 (Beatty), to the effect that "the means chosen to implement a legitimate business purpose should be rational .and proportionate to the purpose served and interests infringed". In the case before us, the parties have expressly provided for the way in which a bilingualism policy in a college is to be balanced against other interests, specifically promo- tional opportunities for employees. Clause 14.4 obviously requires a balancing between two interests, and the test is that the College must not unreasonably deny promotional opportunities, despite the clear authority given to the College to establish language requirements for any position. On the language of the clause, therefore, we think that the test is closer to that set out in the McKeller General Hospital and the Royal Ottawa Hospital cases than that set out in the Cornwall General Hospital - 10 - case. On the other hand, we should also observe that the provisions of Article 14.4 involve obligations of the College to the local union, and not specifically to any individual employee. The Union is entitled to raise any particular concern relating to the language requirements of any specific job posting at a college/campus committee meeting,- and if it is dissatisfied with the explanation given, may launch a grievance under clause 14.4. In our view, an individual employee cannot call clause 14.4 in aid of a grievance under clause 17.1.1, as has been done in this case. Since, however, the grievor is also the local Union president, we think it is reasonable in these circumstances to treat the Article 14.4 issue on its merits despite the way in which it comes before us. A second observation which we feel compelled to make is that the collective agreement does not require language training in order to permit an otherwise qualified employee to meet the language requirements of a particular job. While an employee with rusty language qualifications might well be allowed a period of time to grow into a job with a language requirement, the essence of clause 17.1.1 is that an employee must be presently qualified in order to satisfy a job posting. Finally, we observe that the College has not developed any criteria for deciding when a position should be designated as involving a language requirement. While it may be impossible to develop a detailed structure of such criteria, it might well - 11 - forestall grievances like the present if the College were to articulate the way in which it proposes to meet its obligations under clause 14.4 when it decides that a particular position has a language requirement. In doing so, because of the provisions of clause 14.4, it must of course address not only the College's mission, the demand for services in a particular language, and the efficient provision of those services, but also the extent to which imposing a language requirement might "unreasonably deny promotional opportunities to employees". Given the structure of the rest of clause 14.4, we think it is obvious that this clause was originally drafted to protect the rights of employees who are fluent only in English, but it might well also operate to protect the rights of employees who are fluent only in French, as the French language programs grows. Having set out what are, in our view, the principles on which this matter must be decided, we now turn to the propriety of the College's designation of this position as requiring fluency in both official languages. In our view, on the evidence before us, there can be no question that this requirement was entirely reasonable. While the College was first required to articulate its reasoning in the terms of clause 14.4 only at the hearing, we think that reasoning adequately meets the provisions of the collective agreement in this respect. While it is true that an employee fluent in English only can deal with the "office" aspects of the job even where it involves applications and correspondence in French, we are of the - 12 - view that the requirement for personal communication with students, parents and spouses is such that the College is right to wish to maintain an ongoing capacity to provide such com- munication in both French and English. While the Union evidence was to the effect that many francophone students are in fact themselves fluent in English, and that many are content to communicate in English when there.is no one available to communi- cate in French, that is really not the point° The College's desire to provide services directly in two official languages is entirely consonant with its mission, and is clearly contemplated by clause 14.4 of the collective agreement. Moreover, the way in which the College has gone about implementing this capability is, in our view, entirely reasonable. Of a staff of four, two employees are fluent only in English. The other two, as it happens both of the middle ranking employees, are fluent in both languages. The precise mix of language capabilities across the members of the department might well be permitted to vary, and apparently has varied in the past, but we are hard-pressed to see how the College could possibly manage to provide its services in both official languages without at least two persons who are fluent in French as well as being entirely conversant with the operation of the department and the services of which it provides. The present grievance, if it were allowed, would require the department to operate with only one person fluent in French. That would cast an extremely heavy load on that one - 13 - person in addition to her other duties, since she would be required to deal with almost one-third of the students in the College throughout the.period when applications are being given out, advice is being offered, and questions about individual application forms are being asked, as well as throughout the interview period. Moreover, the absence -of that employee on vacation during the summer, or any unforeseen absence due to illness or for any other reason, would leave the department with no French language capacity at all, a situation which would make the provision of important student services in French impossible for the duration of the absence. The present arrangement of posi- tions into those which have a bilingual requirement and those which do not, therefore, permits the College adequately to carry out its mission to the francophone Community in an efficient and responsive way, by staffing two positions with people who are able to deal with either the anglophone or the francophone students as required. While it might be reasonable to alter the language requirements for job posting for the Clerk D position in the future, for example if a new incumbent of either the Man- ager's position or the Clerk B job were to have the required fluency in both' languages, as the staffing is presently es- tablished the language requirement for the vacant Clerk D job was properly imposed. As to the balancing of interests, there is nothing in the evidence to suggest that the otherwise reasonable imposition' - 14 - of a language requirement unreasonably denies promotion oppor- tunities. That calculation has to be made across all of the bargaining unit, and can't be assessed on the basis that this grievor is prevented from getting this job, unless the require- ment is unreasonable of itself. Finally, we think it might be appropriate to comment that the College might reasonably direct its attention .to the advancement of its anglophone staff members at the same time as it pursues its mission to francophone students. It appears that the College has offered language training in the past to its staff, and that the grievor herself had embarked on such train- ing. She says that she was discouraged from proceeding further because of comments'by a former management employee to the effect that no one could become bilingual through such training, since bilingualism required being raised and schooled in both the French and the English language. If such a comment was indeed made, it would be a great disservice both to the College's attempt to upgrade the language skills of its employees, and to the members of its staff who wish to participate in such training. What constitutes "fluency" for the purposes of any particular job will depend very much upon the duties and responsibilities of that job. Even an' employee who is not "bilingual" by the definition above may well meet the requirement of being able to function effectively in the required language. It is difficult to go through a complete business day anywhere in this country without encountering people who are - 15 - entirely functional in one of our official languages for the pu~oses of their emplo~ent, even where they learned that lan~age as a second lan~age only as an adult. We would urge the College to encourage its staff me~ers to upgrade their language skills, always bearing in mind that it will not be possible for eve~one to achieve the fluency rewired for every job. In the result, therefore, the grievance must be denied. While both parties appear to have proceeded upon some misap- prehension as to the meaning and application of clause 14.4, we are of the view that there has been no breach of that provision, or of any other provision of the collective agreement, in this particular case. DATED AT TORONTO, Ontario this 12th day of June, 1989. ~~e~th P. Swan, Chai~an I concur "D.J. Cameletti" D.J. Cameletti, College Nominee I dissent; see attached "Wally Majes~" Wally Majes~, Union Nominee RE: CAMBRIAN COLLEGE AND O.P.S.E.U.; L. JOVIC GRIEVANCE - 9 88C092 DISSENTING OPINION After listening to the College's eloquent plea that CAMBRIAN COLLEGE serves a very large francophone community in a large socio/geographic area, the College deems itself to be a bilingual institution. Aside, from some unsubstantiated evidence it is hard to visualize or conceptualize how the college either department by department or programme by programme actually delivers these 'francophone services!. What is even more unclear is what is the colleges definition of a bilingual institution. Looking from a corporate point of view there was no evidence produced that substantiated a formalized corporate bilingual policy as it applies to employees and management and students. It would seem by some of the evidence submitted at the grievance hearing that in effect there really is no official college bilingual policy. Further to compound the matter, it would seem that past practice of encouraging employees to upgrade their - 2 - bilingual skills especially their francophone fluency skills, has been ad hoc and wasn't officially recognized as allowing employees to use this up grading to access bilingual or francophone positions conversely this probably would apply to francophone employees who would4 need English up grading to improve their English fluency. In reality, it would seem that there is no systematic or formalized approach to either French or English up grading at the College. Even though the j6b posting for the Clerk D position clearly had in its job description the pre requisite of French fluency; the College was amiss in not holding a formal job competition for the posting. If the College had held a open job competition this would have allowed each candidate to be evaluated on all the relevant qualifications as set out in the job specifications. Though the out come may well have been the same, the grievor was denied the opportunity to apply for the job. That in itself was a denial of a open and fair process where one could be evaluated on a common set of evaluation standards. Another, relevant point is that if there had been a formalized job competition process the whole question of French fluency - 3 - could have been evaluated and secondarily the grievor would have had the opportunity to raise the question of her previous French language up grading. It would seem that the College purposely did not hold a job competition because they felt they had the right to make this decision and didn't think it warranted a job competition. By not holding a job competition, the College is giving a clear signal that the job posting process is not always the key element in how employees get access to new job postings. The problem with this approach is that you end up with a process which is quite arbitrary and does not take into account evaluating job applicants in certain specified criteria like: · skills · competence · efficiency · qualifications and clearly the employer did not apply this test of criteria in this instance. - 4 - This type of action clearly clouds the issue and leaves the College open to justifiable accusations, that they acted in biased/unfair manner to the grievor. My dissent stems from the fact that the College has not acted in good faith in this job competition process. Hopefully the College in future will have a job competition process whereby all applicants will be judged on a common set of criteria such as skills, efficiency and competence. Any other pre determined criteria and that these elements should be scored and totaled in a formalized job evaluation/job posting process. The College will have to implement a French/English language employee up grading programme if it is to become a truly bilingual institution. It is not good enough to state in its current calendar that the College is responsive to the particular needs (in this instance the francophone community) of the geographical district it is designated to serve. The College will have to show very clearly how it can assist its own employees to become truly bilingual in both French and English and only then can they say that they are a bilingual College. Union~omi~ee