HomeMy WebLinkAboutGodin 95-01-31 IN THE MATTER OF AN ARBITRATION
BETWEEN:
ALGONQUIN COLLEGE OF APPLIED ARTS AND TECHNOLOGY
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
GRIEVANCE OF ELAINE GODIN
BOARD OF ARBITRATION:
JANE H. DEVLIN CHAIR
ANDREW SHIELDS COLLEGE NOMINEE
RON COCHRANE UNION NOMINEE
WALLACE KENNY, FOR THE COLLEGE
GAVIN LEEB, FOR THE UNION
OPSEU FILE NO.: 93C696
HEARING DATES: November 19, 1993 June 20, 1994
September 2, 1994 November 22, 1994
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The grievance, which was filed by Elaine Godin,
involves a claim that the College violated the layoff provisions
contained in Article 15 of the collective agreement. In
particular, the Union contends that the College failed to
properly consider the Grievor for a number of vacant positions in
accordance with Article 15.4.3. This Article, together with
other relevant provisions of Article 15, are as follows:
15.4 Layoff Procedure
When the College decides that circumstances require a
reduction in personnel in any position within a
classification the following provisions shall apply:
15.4.2. Post Probationary Employees ·
When the qualifications of employees in the affected
position who have completed their probationary period
are relatively equal as to that position their layoff
shall be on the basis of seniority.
15.4.3. Bumping Procedure
The employee so identified shall be assigned by the
College to the first position determined in accordance
with the following sequence:
- to a vacant position in their classification provided
he/she can satisfactorily perform the requirements of
the job. If there is no such position then;
- to a vacant position in the same payband provided
he/she can satisfactorily perform the requirements of
the job. If there is no such position then;
15.4. ?. Familiarization Period
It is understood that the College is not required to
train an employee for a position into which he/she may
be assigned pursuant to Article 15.4.3, but the College
shall provide a reasonable period of familiarization
where necessary.
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15.6.1. Yacancy/Recall
For the purposes of this Article, a vacancy is any
position within a classification or an atypical
position in which the College requires staffing and
includes vacancies posted under Article 17.1 for which
a final selection and confirmation of employment has
not been made by the College...
For purposes of the hearing, the Union identified three
vacancies for which the Grievor was interviewed which were as
follows: (1) Ontario Skills Project officer which is classified
as a Support Services officer C at payband 11: (2) Microcomputer
Applications Developer, an atypical position at payband 10, and
(3) jobsOntario Training Consultant, an atypical Support Services
Officer position at payband 10. There would appear to be no
dispute that this latter vacancy was not in the bargaining unit
but instead involved a secondment opportunity for the period from
January, 1993 to December 31, 1993.. The evidence also indicates
that although the Grievor was interviewed for this position, she
was not considered for four earlier vacancies for jobsOntario
Training Consultants which were filled in December, 1992. Two of
the earlier vacancies were for the period from December, 1992 to
December 31, 1993 while the remaining vacancies were for the
period from December, 1992 to December 31, 1994.
As to the Grievor's education and work experience, the
evidence indicates that she has a grade 12 diploma and completed
a number of courses at the grade 13 level. From 1954 to 1957,
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she worked in various clerical positions at Central Mortgage and
Housing Corporation. Thereafter, from 1959 to 1966, she was
employed at CN Telecommunications where she initially occupied a
number of clerical positions and later worked as a Supervisor in
the Telephone and Service Departments. In these various
capacities, she had contact with government and private sector
clients in connection with matters such as pricing, invoicing and
telegram delivery. As well, when working as a Supervisor, her
duties included training and supervision of staff.
The Grievor began her employment with the College in
August, 1969 at which time she worked as a Secretary in the
Economics Department. In December of that year, she was the
successful applicant for a secretarial position in the offices of
the President and Vice-President, Administration. She was later
promoted to the classification of Support Services officer and
during the period from December, 1969 to August, 1983, her duties
included preparation and distribution of College policies and
procedures; scheduling meetings and preparing agendas; assisting
in the preparation of Division and College budgets as well as the
annual report to the Board of Governors; and administering travel
expenses. As a Support Services Officer, the Grievor also
trained and supervised a number of part-time staff. In addition,
as Supervisor, Office Systems and Documentation, she was involved
in co-ordinating, promoting and supervising the implementation of
the College's first computerized administrative office systems.
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In this capacity, she implemented security procedures as well as
techniques for indexing, data storage and recovery of files. She
was also involved in the installation of software and the
provision of technical advice and training to system users.
In 1983, the Grievor was transferred to the Computer
Services Department where she continued to perform the duties of
Supervisor, Office Systems and Documentation. While in the
Department, she also assisted in the conversion of existing
hardware and software to the microcomputer system. In this
regard, she met with vendors of computer equipment and software
and recommended particular software applications based on the
needs of individual departments. As well, she trained staff on
software such as Wordperfect and Ventura Desktop Publishing.
From 1985 to 1992, while classified as a Support
Services officer C, the Grievor worked in the Microcomputer
Information centre where she was involved in planning and
directing the day-to-day operation of the Centre. She also
assisted with the purchase of hardware and software which again
involved vendor contact; engaged in troubleshooting and quality
c0ntrol; conducted hardware and software audits; and provided
support and aSsistance to end-users of~the microcomputer system.
As well, she trained and supervised students who acted as
laboratory monitors and provided reports on their work
performance to management.
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From the spring of 1992 to the late spring of 1993, the
Grievor was involved in conducting software registration which
entailed liaising with senior officers and administrative staff
to identify requirements and recommending storage procedures.
She was also involved in updating the existing hardware and
software database.
Apart from the positions referred to, on a part-time
basis in 1988 and 1989, the Grievor was the Director of
Employment and Education Equity and chaired the Employment Equity
Committee. At one time, she was also the support staff
representative on the Career Development Plan Committee and, in
this capacity, was involved in formulating policies and
procedures for the Plan. During her employment with the College,
the Grievor also attended various workshops and seminars on
subjects such as word processing, management skills and
implementing information centres. As well,, she taught several
courses in word processing.
As to the vacancies in issue in this case, the Position
Description Form ("PDF") for .the Ontario Skills Project Officer
indicates that the incumbent assists in the delivery of the
Ontario Skills Program by assessing the validity of training
plans and recommending approval or rejection of applications to
the Manager. As well, the incumbent assists clients in preparinq
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applications and developing training p~ans; performs evaluations
of selected plans; and engages in client and public relations to
promote the Program. By way of training and experience, the PDF
indicates a requirement for a three-year community college
diploma with courses in human resources, personnel, education,
economics, political economy or human behaviour. There is also a
requirement for at least five years' experience in human
resource-related fields in business or industry or equivalent
experience in dealing with the human resource needs of private
sector clients.
A vacancy in the position of Ontario Skills Project
Officer was posted in November, 1992 and the Grievor was
interviewed for the vacancy by Andrew Sheppard, the Acting
Manager of the Ontario Skills Program. The Grievor testified
that prior to the interview, Mr. Sheppard provided her with
certain materials relating to the Program and at the outset of
the interview, outlined the nature of the Program and its
relationship to other Departments.
The Grievor expressed the view that based on her
experience, including her contacts with government
representatives and vendors of computer equipment and software,
she could perform the duties of the Ontario Skills Project
Officer. As well, given her experience in providing training on
various computer systems, she was confident that within a short
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period of time, she could learn to document training plans. She
also testified that in a number of positions, including her
positions in the Offices of the President and Vice-President,
Administration, her position in the Microcomputer Centre and her
supervisory position at CN Telecommunications, she had
involvement with human resource issues. She acknowledged,
however, that with the exception of her position at CN
Telecommunications, this involvement was peripheral to her main
job duties and that, in fact, she did not have a minimum of five
years' employment in human resource-related fields. Moreover,
although she attended a number of courses and workshops on
subjects pertinent to human resources, she did not have a
community college diploma as specified on the PDF.
Mr. Sheppard testified that as he recalled, he
interviewed the Grievor for the position of Ontario Skills
Project Officer within the same time period as he interviewed
other applicants for the vacancy and he assessed all applicants
against the requirements of the PDF. He also testified that he
ranked applicants with a view to ascertaining the most suitable
applicant although the final decision was not based on his
recommendation alone. In any event, Mr. Sheppard also testified
that the Grievor was not qualified for the position as she did
not have the minimum training and experience required by the PDF.
In Mr. Sheppard's view, such training and experience were
essential to effectively carry out the job duties. Moreover,
9
even if the duties could be performed without the particular
training and experience set out on the PDF, Mr. Sheppard
suggested that equivalent training and experience would be
necessary and there was no indication that the Grievor could
satisfy those requirements.
As to the position of jobsOntario Training Consultant,
the PDF indicates that the incumbent is responsible for
recruiting employers and identifying new incremental job
positions within the private sector in accordance with an
established participation rate. The incumbent also assists in
the development of training plans for participants, monitors and
evaluates training and recommends training credit funding. By
way of training and experience, the PDF indicates that the
position requires a three-year community college diploma or
equivalent in a related discipline and three years' business
exposure, including experience in consulting or training and
development.
The Grievor was interviewed for a vacancy in the
position of jobsOntario Training Consultant which was posted in
January, 1993. (As indicated previously, four earlier vacancies
for which the Grievor was not considered were filled in early
December, 1992.) The Grievor's interview was conducted by Hugh
Wright, the Project Manager for the jobsOntario Training Fund
and, according to the Grievor, the interview was brief and Mr.
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Wright's approach, somewhat perfunctory. Nevertheless, she also
acknowledged that she may not have appeared particularly
confident as she had not been offered one of the vacancies which
had been posted previously. In any event, when questioned by Mr.
Wright as to her experience in dealing with private sector
companies, particularly in the areas of consulting or training
and development, the Grievor made reference to her experience in
pricing and issuing invoices at CN Telecommunications. She
believed that she also made reference to her contacts with
vendors of computer equipment and software during her employment
with the College. At the hearing, the Grievor testified that she
also had experience training staff both at CN Telecommunications
and at the College and that she acted in a consulting role when
dealing with vendors and department managers concerning software
needs. In any event, based upon her experience and the fact that
the jobsOntario Training Fund was a new program to the College,
the GrieVor testified that she was certain that she could learn
the duties of the position.
Mr. Wright agreed that his interview with the Grievor
was brief and testified that based on the Grievor's resume and
her responses at the interview, it was apparent that she did not
have the minimum training and experience required to carry out
the duties of the position. Moreover, Mr. Wright testified that
as the program was new to the College, it was all the more
necessary that an employee appointed to the position have the
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training and experience specified on the PDF. Mr. Wright also
testified that at the conclusion of the interview, he suggested
to the Grievor that her skills and experience did not appear to
be a "good fit" with the job requirements and that the Grievor
agreed with his suggestion. The Grievor testified, however, that
she could not recall precisely how she responded to Mr. Wright's
suggestion.
The final vacancy in issue is that of Microcomputer
Applications Developer. The PDF for this position indicates that
the incumbent addresses the information needs of the Physical
Resources Department and develops microcomputer systems to meet
those requirements. In the course of carrying out particular
projects, the incumbent determines and documents system
requirements and prepares system specifications; identifies and
evaluates alternate solutions including technical and cost
feasibility analysis; reviews proposals with the Project Manager;
programs and implements new systems to meet specifications and
end-user requirements and provides training, troubleshooting and
fine tuning in response to user requests. As to training and
experience, the PDF indicates a requirement for a three-year
community college diploma, preferably in Computer Science or
Business Information Systems or equivalent. As well, there is a
requirement for at least three years' experience with
microcomputer system development and programming, preferably in
4GL/RDBMS, DOS environment.
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The Grievor was interviewed for a vacancy in the
position of Microcomputer Applications Developer in March, 1993.
The interview was conducted by Carol Anderson, the Manager of
Administrative Services for the Physical Resources Department,
and the Grievor testified that, during the interview, Ms.
Anderson indicated that strong programming skills were required
for the position. The Grievor acknowledged that she had no prior
experience in programming. Although she also testified at one
point that sh~ could perform 85% of the job without training, she
agreed that she would have to rely on others to perform the
programming functions. She also acknowledged that she did not
have a community college degree as specified on the PDF but in
view of her experience with various databases, she testified that
it would not take her long to adjust to the requirements of the
position.
Ms. Anderson testified that programming skills are
essential to the job of Microcomputer Applications Developer as
the incumbent is involved in designing and developing programs to
meet user requirements. She also testified that the time spent
on programming varies with the particular project and that in the
case of a utility project which took approximately 4 months'
time, 70% to 75% of the work entailed programming. As well, Ms.
Anderson testified that when engaged in programming, the
incumbent works with little supervision and performance is
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measured primarily by whether the application developed meet user
requirements. In any event, given the Grievor's lack of
experience in programming and the fact that she did not have the
training specified on the PDF, Ms. Anderson was of the view that
she did not meet the requirements for the position.
The issue, then, is whether the College violated the
provisions of Article 15 of the collective agreement. In this
regard, Article 15.1 sets out the procedure to be followed in
the event of a reduction in staff within a classification and
provides that an affected employee shall first be assigned to a
vacant position within his or her classification and then to a
vacant position within the same payband provided that, in each
case, the employee can satisfactorily perform the requirements of
the job. Article 15.6.1 further provides that for purposes of
Article 15, a vacancy~is any position within a classification or
an atypical position in which the College requires staffing and
includes vacancies posted under Article 17.1 for which final
selection and confirmation of employment has not been made.
Article 15.4 provides that the College is not obliged to provide
training in any position to which an employee may be assigned
pursuant to Article 15.4.3. although, where necessary, the
College is required to provide a reasonable period of
familiarization.
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In this case, it was the initial submission of the
Union that the College violated Articl~ 15 of the collective
agreement in that it failed to consider the Grievor for the
vacancies in issue prior to posting the positions. The College,
however, disputed that there is any requirement to consider an
employee subject to layoff for a vacant position prior to the
position being posted in accordance with the requirements of the
agreement.
As pointed out by the Union, for purposes of Article
15, the parties have agreed that a vacancy is not limited to a
position posted under Article 17.1 but extends to any position
for which the College requires staffing. Nevertheless, there is
nothing in Article 15 to indicate that an employee subject to
layoff must be considered for a vacancy prior to the position
being posted as required by the collective 'agreement. To this
extent, therefore, we find the awards relied upon by the Union to
be distinguishable. In each of those awards, it was found that
notice to the Union was a condition precedent to the Employer
advising employees of an impending layoff or effecting an
involuntary transfer. In this case, in contrast, we find that
the College is not obliged to consider an employee subject to
layoff for a vacant position prior to posting the position in
accordance with the agreement.
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Turning to the vacancies in issue, the Union contended
that the Grievor ought to have been interviewed for the initial
vacancies for jobsOntario Training Consultants and that as she
was not, the College was not entitled to remove her from her
position. In the Board's view, however, the submission of the
Union cannot prevail. It is apparent that where a layoff is
contemplated, the parties consider alternate positions, including
positions outside the bargaining unit, with a view to minimizing
the dislocation of employees. Nevertheless, in the Board's view,
the term "vacant position" in Article 15.4.3. is intended to
refer to a position within the bargaining unit and an employee
cannot insist on appointment to a position outside the unit. In
any event, in this case, the evidence indicates that the Grievor
did not have the minimum training and experience specified on the
PDF and Mr. Wright testified that such training and experience
were necessary to carry out the job functions. As well, the
Grievor appeared to acknowledge that she would have to learn the
duties of the position and although she would undoubtedly apply
herself conscientiously to this task, in the Board's view, it is
clear that she would require training to satisfy the requirements
of the position. As noted previously, however, there is no
obligation to provide training in the event of an assignment to a
position under Article 15.4.3.
As to the Ontario Skill Project Officerl the Union
contended that the Grievor was improperly considered in the
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context of a competition with other applicants. In particular,
it was submitted that Mr. Sheppard was endeavouring to find the
most suitable applicant which was inappropriate given the
requirements of Article 15.4.3. While we agree with the Union
that Article 15.4.3. does not contemplate a competition among
applicants and that an employee subject to layoff is to be
assigned to a vacant position provided'he or she can
satisfactorily perform the requirementk of the position, in this
case, Mr. Sheppard determined that the Grievor lacked the
necessary training and experience and, based on the evidence, we
must agree with that conclusion. Moreover, the Grievor appeared
to acknowledge that she would have to learn to carry out the
duties of the position and, in the circumstances, we find that
she could not satisfactorily perform the requirements of the job.
Finally, there is the position of Microcomputer
Applications Developer. Although this position is admittedly not
in the Programmer or Programmer/Analyst classification,
nevertheless, the evidence indicates that the position requires
programming skills and while the amount of time spent on
programming may vary with the particular project, the Board is
satisfied that programming is an integral and essential part of
this position. As the Grievor acknowledged that she had no
experience in programming and that she would have to rely on
others to perform this'function, we cannot conclude that she
could satisfactorily perform the requirements of this position.
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In the result, the Board finds that the Union has
failed to demonstrate a violation of the collective agreement
and, accordingly, the grievance of Ms. Godin is dismissed.
DATED AT TORONTO, this 31st day of January, 1995.
Chairman
"Andrew Shields"
College Nominee
"Ron Cochrane"
Union Nominee