Loading...
HomeMy WebLinkAboutMiller 90-06-14 IN THE MATTER OF AN ARBITRATION BETWEEN: FANSHAWE-COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION GRIEVANCE OF T. MILLER · BOARD OF ARBITRATION: JANE H. DEVLIN CHAIRMAN R.J. O'CONNOR COLLEGE NOMINEE JON MCMANUS UNION NOMINEE Appearances for the College: Brenda Bowlby Ari Bakker Gayle White-Malloy Appearances for the Union: A. Ryder In this case, the Grievor, Tim Miller, claims that he was improperly denied a posted vacancy in the classification of Caretaker C at the St. Thomas campus. The notice of vacancy which was dated November 4, 1988 is as follows: 2. Physical Resources - A.E.C. St. Thomas CARETAKER C - Pay band 3 Salary: $11.33 - $11.63 per hour DUTIES: performing heavy cleaning duties in the buildings which include washing and waxing floors, carpet maintenance, disposing of refuse, washing walls, moving furniture, and maintaining supplies· (3:00 p.m. to 11:00 p.m. shift) QUALIFICATIONS: A working knowledge of cleaning equipment, materials and methods and physical capabilities to undertake heavy cleaning duties· The successful applicant for the position of Caretaker C was Mirko P~esa who attended the hearing and was provided with the opportunity.to participate in the proceedings. Prior to his employment with the College, the Grievor worked as a Security Guard for a company which provided personnel to the College on a contract basis. The Grievor was hired by the College on January 2, 1987 and began work as a Caretaker C on the afternoon shift at the St. Thomas campus. At that campus, .there was alsO a Caretaker C assigned to the day shift from 6:00 a.m. to 2:00 p.m. and both he and the Grievor reported to Ari Bakker, the Manager of Caretaking Services. Mr. Bakker testified that he 2 generally visited the St. Thomas campus only once each month and accordingly, the Caretakers C performed their work without direct supervision. On. April 23, 1987, Mr. Bakker.placed a memo on the Grievor's file concerning a number of incidents which had taken place earlier that month. This memo indicated that on several occasions, the Grievor had been absent from the College during the supper hour and on one occasion when Mr. Bakker attended at the St. Thomas campus, he could not locate the Grievor. When the Grievor returned some two and one half hours later, he indicated that he had been repairing his car in the machine shop. On another occasion, the Principal of the St. Thomas campus was unable to locate the Grievor for approximately two hours and when the Grievor did arrive, he appeared to be under the influence of alcohol. When confronted by Mr. Bakker concerning these incidents, the Grievor indicated that he regretted his actions and would not engage in similar conduct in the future. Subsequently, on May 10, 1987, the Grievor was demoted to the classification of Caretaker B and the memorandum which was issued on this occasion indicates that this action was taken as a result of a number of incidents which reflected on the Grievor and his work. As a consequence of the demotion, the Grievor was transferred to the main campus and assigned to the night shift. Mr. Bakker testified that he made this assignment to ensure that 3 the Grievor was supervised in the performance of his job duties. The evidence indicat'es that on the main campus, a Foreman and three Lead Hands are assigned to the night shift. Following the Grievor's assignment to the main campus, there was some improvement in his performance and, in this regard, two appraisals were introduced into evidence. The first of these is dated July 9, 1987 and the second, August 27, 1987. In both appraisals, the Grievor's performance was described as satisfactory. Subsequently, however, the Grievor was suspended on two occasions, each for a period of two days. The first suspension was imposed in early November of 1987 and resulted from incidents of lateness, absence from work without notice and one occasion on which the Grievor was found asleep in the Heliotrope during his shift. The second of the two day - suspensions was imposed in mid February of 1988 and resulted from two incidents in which the Grievor was found asleep in a car parked in the body shop. On one of these occasions, the Grievor indicated that he was on a break as he had worked thrOugh his regularly Scheduled break. Finally, in May of 1988, the Grievor was discharged by the College as he was again found asleep in the Heliotrope. A grievance was subsequently filed which proceeded to arbitration in'October of 1988. At the hearing, the Union advised the College that Grievor had fallen asleep during his shift because 4 he had been taking medication which caused drowsiness. Evidently, this medication had been prescribed because the Grievor had experienced some difficulties adjusting to work on the night shift. In any event, based on this information, the College agreed to reinstate the Grievor on the following conditions: 1. Mr. Miller will be reinstated upon production of a medical certificate from his doctor indicating his fitness to perform the duties of a Caretaker. Upon production of this certificate Mr. Miller will be advised when and where to report to work. The medical certificate will be delivered to Debbie Laevens. 2. Mr. Miller will be examined by the College's doctor at a time to be arranged by the College. 3. Upon reinstatement, Mr. Miller will carry out the duties of his job as required and assigned and he will follow all rules and regulations. 4. Any further incidents of sleeping of(sic) the job, failing to report any absence in advance of the absence or incidents of absence wit.hin the year following his~ reinstatement exceeding the department average shall result in Mr. Miller's automatic termination from employment with the College. 5. For every incident~ of illness, Mr. Miller shall produce a medical report. 6. Mr. Miller will report his absences to the designated administrative person or persons. 7. Mr. Miller will receive no retroactive pay for the period between the date of his discharge and the date of his reinstatement. The letter of discharge will be removed from Mr. Miller's record. The incident giVing rise to the grievance shall not be considered to have been the subject of discipline. 8. The agreement shall become an order of the arbitration board. 5 In accordance with the conditions set out, the Grievor was reinstated to employment on November 6, 1988 and was assigned to work on the afternoon shift at the main campus. On the day following his reinstatement, the Grievor applied for the vacancy in the classification of Caretaker C at the St. Thomas campus. The only other applicant for the posted vacancy was Mirko Plesa whose seniority date is March 15, 1987. In November of 1988, Mr. Plesa was working as a Caretaker B at the main campus. From time to time, he had also worked as a Caretaker C. at the St. Thomas campus on a relief basis. The Grievor and Mr. Plesa were interviewed for the vacancy by a panel composed of Ari Bakker, Debbie Laevens, the Assistant Manager of Caretaking Services and Judy Mills, a Personnel Assistant. Mr. Bakker and Ms. Laevens testified that the Grievor was 25 minutes late for his interview and that when he arrived, he offered no explanation for his lateness. Although the Grievor could not recall being late for the interview, he testified that if he had been late, he would have provided an appropriate explanation. Each of the interviews lasted approximately 15 minutes and during the course of the Grievor's interview, he indicated that he had matured and believed.that he deserved "a second 6 chance". According to Mr. Bakker and Ms. Laevens, the Grievor also advised the panel that he would benefit from additional training in blackboard maintenance and floor care. Although the Grievor did not deny making reference to the need for training, he testified that this applied to all Caretakers at the College. At the conclusion of the interviews, it was the unanimous view of the panel members that the job of Caretaker C at the St. Thomas campus should be awarded to Mr. Plesa. Mr. Bakker testified that in making its decision, the panel took into account the Grievor's prior record and based on this record, the panel had serious, concerns about the Grievor's timekeeping, attendance and ability to work without supervision. The panel had no similar concerns about Mr. Plesa. The panel also considered the fact that the Grievor had indicated a need for further training which Mr. Plesa had not. Finally, the panel took into account an incident which occurred subsequent to the Grievor's reinstatement and prior to his interview on November 15, 1988. In this regard, Ms. Laevens testified that shortly after his reinstatement, the Grievor requested 'that she provide him With bleach which he intended to mix with floor stripper to make a cleaning solution. Ms. Laevens refused to do so and advised the Grievor that such a mixture was dangerous. According to Ms. Laevens, the Grievor repeated the request a few days later and when she would not comply, he lodged a complaint with the Union. The Grievor testified that he could recall making only 7 one request for bleach and while he agreed that Ms. Laevens advised him it was dangerous to mix bleach as he proposed, he testified that this was a common practice among the Lead Hands. Ms. Laevens, however, was aware of only one other employee who had attempted to mix bleach in the manner described. The issue then is whether the COllege violated the Collective Agreement in awarding the position of Caretaker C at the St. Thomas campus to Mr. Plesa. In this regard, Article 17.1.1 of the Agreement provides as follows: " 17.1.1 Consideration - Barqaininq 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 requirements of the vacant position. Notwithstanding the foregoing, where there is no increase in the complement of bargaining unit. employees in the Department within which the vacancy arose, the College may forego posting and fill such vacancy by appointing a qualified bargaining unit applicant from the Department." As noted by the Board in Durham College and Ontario Public Service Employees.Union March 25, 1988 (Samuels (unreported)), Article 17.1.1 does not provide that the senior employee with the requisite ability is entitled to the job, nor does it provide for a competition among employees in which seniority is to govern where skill and ability are relatively equal. Instead, Article 17.1.1 provides that the College is to give proper consideration to the qualifications, experience and seniority of the respective 8 applicants in relation to the requirements of the vacant position. Thus, the College has a broad scope of review. In giving "proper consideration" to the factors set out, however, the College must gather sufficient information upon which to assess the respective applicants and must give appropriate weight to the various factors given the requirements of the posted position. In this case, the Grievor has approximately two months more seniority than Mr. Plesa. At the time of the posting in November of 1988, both the Grievor and Mr. Plesa were working as Caretakers B at the main campus. The Grievor had actually held the.position for which he was applying while Mr. Plesa had worked in the position on a relief basis. In deciding to award the job of Caretaker C to Mr. Plesa rather than to the Grievor, one of the factors relied upon by the College was 'the Grievor's prior record. It was the submission of the Union, however, that it was inappropriate for the College to consider this record because it related to the Grievor's reliability as an employee rather than to his ability to perform the duties of the job. The Union further contended' that to deny the Grievor the job on the basis of his record would constitute a double penalty as the Grievor had already been sanctioned for the incidents contained on the record. In any eVent, even if the College was entitled to consider the record, 9 it was submitted that the College should not have done so without also considering the Grievor's performance appraisals. In this regard, Mr. Bakker acknowledged that such appraisals were not taken into account by the panel in making its decision. In the Board's view, it is generally accepted that an employee's disciplinary record can be considered in the context of a promotion provided that the record reflects upon the employee's ability or, in this case, his qualifications and experience in relation t° the requirements of the job. As acknowledged by the Union, the Grievor's record reflects upon his reliability and, in our view, the incidents contained on the record are relevant to the Grievor's ability to work. without supervision, a requirement of the position of Caretaker C at the St. Thomas campus. This is not to say, however, that the Grievor's record will forever preclude him from obtaining such a position. Were the Grievor to perform his dUties for a reasonable period without incident, it might be said that he had rehabilitated himself so that it Would no longer be appropriate for the College to consider his prior record. In this case, however, it will be recalled that the Griev°r applied for the job of Caretaker C only one day after his reinstatement. In these Circumstances, we do not find that the College~acted improperly in considering his prior record in assessing his qualifications and experience in relation to the requirements of the job. 10 As to the College's failure to consider the Grievor's performance appraisals, we agree with the Union that there exists the potential for prejudice and the possibility that an employee's qualifications and experience will not be properly considered where the College takes into account the prior disciplinary record but fails to consider the employee's performance appraisals. In the case, however, we do not find that the Grievor was actually prejudiced or that the failure to consider his appraisals resulted in a violation of Article 17.1.1. The appraisals of the Grievor which were conducted by Mr. Bakker related to.his performance of the job duties of Caretaker. There was no dispute about the Grievor's ability to perform these duties and this was not relied upon as a basis for denying the job to the Grievor. Instead, the College's concern related to the Grievor's ability to work without supervision. - Finally, the Union objected to the manner in which the selection panel considered the incident which precipitated the Grievor's discharge. In this regard, the Union pointed to the evidence of Mr. Bakker that he considered this incident to be disciplinary whereas the parties agreed that, as a condition of reinstatement, the incident would not be viewed in this manner. While the parties' agreement is clear, it is not clear at what point Mr. Bakker viewed the culminating incident as disciplinary and certainly it was initially treated as disciplinary by the College. In any event, even if the manner in which the incident 11 was considered by-the panel was inappropriate, in our view, it is not fatal' to the College's decision in this case. The balance of the Grievor's record, his statement that he would benefit from further training and the incident involving the bleach justified the College's decision to award the job to Mr. Plesa rather than to the Grievor. Although Mr. Plesa was the junior employee, he had performed his duties as a Caretaker B and as a Caretaker C in a satisfactory manner; he had no prior disciplinary record and he had not indicated a need for further training. In the result, we do not find that the College violated the Collective Agreement in selecting Mr. Plesa for the job of Caretaker. C at the St. Thomas campus. In light of our disposition of this matter, it is unnecessary for the Board to consider the College's objection to the ~grievance on the ground of timeliness. Accordingly, the grievance of Mr. Miller is hereby dismissed. DATED AT TORONTO, this 14th day of June, 1990. Chairman "R.J. O'Connor" College Nomine Dissent to Follow Union Nominee