HomeMy WebLinkAboutMarsh 90-05-22 IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO COUNCIL OF REGENTS FOR COLLEGES
OF APPLIED ARTS AND TECHNOLOGY
(LOYALIST COLLEGE)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
- Grievance of Ron Marsh
No. 88B542
BOARD:
MARTIN TEPLITSKY, Q.C.,
Chairman
R. J. Gallivan,
College Nominee
Joe Herbert,
Union Nominee
APPEARANCES:
On behalf of the
Union: Richard P. Stephenson, Counsel
On behalf of the
College: Douglas K. Gray, Counsel
Hearing held February 9, 1989 in Belleville
May 8, 1989 in Toronto
October 19, 1989 in Toronto
May 17, 1990 in Belleville
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DECISION
The grievor attempted to obtain the position of
Broadcast Technician C pursuant to the bumping provisions of
the Collective Agreement. His request was refused and the
matter subsequently came on for arbitration.
At the first hearing, the Board suggested to the
parties, and they accepted its recommendation, that the
grievor be re-tested both in written and practical form by 2
independent persons. In due course these tests were
administered. The grievor failed both the written and the
practical tests.
At the next hearing the grievor alleged that the
tests had been unfair.
The Board ordered particulars. These were provided
and a hearing was conducted in Belleville on May 8th, 1990
with respect to the grievor's allegations that the test had
been unfair in the particulars noted by him.
As to the written test, the grievor withdrew his
objections to the written test insofar as the audio portion is
concerned and his mark stands at $ out of 22 for a 36% result.
There is no question that this is a failure.
The grievor had some concerns about the written test
with respect to the visual portion and I have given effect to
some of these objections but having done so the net effect is
that he obtained 3 out of 9 correct for a 33% average. This,
of course, is also a failure.
The grievor is noted as having failed the audio
portion of the practical test notwithstanding that he was able
to locate the "fault" on the basis that it took him longer
than it should have. I suspect that it did take him longer
than it should have. Nevertheless, he was not given a time
limit within which to find the fault and accordingly, in my
opinion, he passed that portion of the test.
I turn then to consider the visual part of the
practical test. There were two faults that needed to be
detected. The grievor's own expert said as to the first fault
that it was a common problem which should have been spotted
immediately. The grievor did not spot it immediately and
never corrected it.
As to the second fault, the person who administered
the test, who is clearly an expert, testified that there was a
clue that should have led the grievor to the fault. The
grievor was aware of the clue, namely, that the tape was
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curling, but he was not aware of the significance of it.
There was no contradiction of this evidence by the expert
called on behalf of the grievor or by the grievor himself.
Accordingly, it is clear to me that the grievor failed the
visual aspect of the practical test.
Accordingly, the decision not to award the grievor
this position was correct and the grievance is dismissed.
DATED the 22nd day of May, 1990.
ISSUED the 2nd day of August,, /19~90. / //
MARTIN TEPLITSKY, Q.C.
Chairman
Colleg~ Nominee
Union Nominee '~