HomeMy WebLinkAbout1988-1440.Daly.90-01-09 ONTARIO EMPLO Y~*S DE LA COUF~ONNE
CROWN EMPLOYEES DE L 'ON TARIO
. GRIEVANCE C,OMMISSION DE.
SETTLEMENT REGLEMENT
BOARD' . DES GRIEFS
180 DUNDAS STREET WEST. TORONTO, oNTArIo. MSG ;ZS. SUITE2100 TELEPHONE/T£L~'PHONE
780, RUE DUNDAS OUEST, TORONTO, (ONrAFEO] MSG lZS- BUREAU FIO~ (4tCJ 59~-~688
1440/88
IN THE-MATTER OF ~N ARBITRATION
Under , ..
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT .BOARD
Between= "
OPSEU (Daly)
Grievor
- and -
The. Crown":ifi. Right of' ontario
(Ministry of:Tourism and Recreation).
Employer
~' J.W. Samuels ' "'~" 'Vic~-Cha'irperson
M. O'To01e' *Member-
Pot the Grievor:. L. Rothstein
..... :codnSei * ,
--', Gow~i~g~,_ Strathyl &~Henders°n ,
Barristers &' SoliCitors -'
For the Employer: M. Fleishman Law Officer
Crown Law Office - Civil
Ministry of the Attorney General
~earings: .june 1, 1989
December 11, 1989 ''-'
In October I988, the griev0r applied .for a posted position as a
Travel Consultant in Niagara Falls. She did not get the position for one
reason only--her leveI of ~:ompetence in the French Ianguage was rated as
"Intermediate", whereas the Ministry wanted someone with an "Advanced"
rating. She grieved.
Later the position was reposted. The grievor applied, but was
neither interviewed nor selected. Ms. Garlene DeHaan was the successful
applicant.
This later activity 'is not the subject of the grievance before us. The
sole issue for us is whether or not the grievor's fights under the collective
agreement were violated when the Ministry failed to give her the position
after the first posting in October 1988.
Article 4.3 of the collective agreement provides:
In fi}ling a vacancy, the Employer shall gNe primary
consideration to qualif'~,ationa and ability to per-
form the re~;uirecl duties. Where c~ualifications and
ability are relatively equal, length of continuous ser-
vice.shall be a consideration.
This Board has said many times that, when the employer establishes
the requirements for a job, these requirements ~must be reasonably related
to the job to be performed see, f~r example, MacKenzie, 1243/87
(RatushnY), and Giasson, 2250/87 (the award on preliminary matters by
Devlin). The grievor argues that the requirement of "Advanced" verbal
skills in French was not reasonably related to the job to .be performed, and
therefore the Ministry violated Article 4.3 when it refused to give her the
job. i'
A Travel Consultant's job is to promote tourism in Ontario. When
someone enters one of the thirteen Travel Centres in the province, the
Consultant should provide the information and advice requested, and go on
to make helpful suggestions designed to increase the x;isitor's stay in
Ontario and use of the travel facilities in the province. Travel expendi/-ures
are essential to Ontai'io's economic health (tourism is our third largest
industry' by dollar value), and the TraVel Consultant plays an important
part in retaining and increasing the'se expenditures.
· .It is important that the Consultant be able to c6mmunicate effectively
with the travelling public-which comes in the door. .- ..
~The evidence at our heating discl~)sed that there 'are. a. substantial
'number of'l~renCh,.~peaki~g visitors, at the Niagara Fans, TraVel Centre,
particularly in the summer monthsl .. .
The grievor has worked for the Ministry since the summer of 1982.
She acted at that time'as a student cOnsultant in the Niagara Falls Travel
Centre. She did the same in the summer of 1983, During 1983 to .1985,
she was a supPi~ teacher and did relief .w-'6rk"for the Ministry. as a Travel
cOnsultant in the Trax~l--Centres.~t Niagara Falls. arid Fort Erie.' in the fall
of 1985, she worked on contract as a 'Travel.. Consultant in' Fort Erie. In
early 1986, She applied for a posted position as full-time Travel Consultant
in Fort Erie and was successful.
In the summer of 1988, the grievor married and moved to
Burlington. She continued w0.rking at the Fort Erie TraVel Centre. But it
~vould 'b'e preferabl~ 'for tier m drive a' shorter distance to and from. work
'each:day, so she'appiied for a transfer to Niagara Falls... But' ~iS request
'' Ih OCtober' 1988,'Wh;ii- th~ Posting Went ut~.'for the vacaricy in
Niagara Falls, she applierl and was unsuccessful because her lev~t of French
was~judged'to be huadequate. In fact, the Min~istry decided that no applicant
met the requirements of the job and no one' was hired as a result of this
posting; if the gr~ex;or h~d had "Advanced" French verbal skills, she
would have' been the successful applicant.
, 4
There is no dispute that the grievor's verbal French skills are
"Intermediate", as that word is defined in the French LangUage Services
ACt Implementation Procedure Manual, published by the Ontario Office of
Francophone Affairs (note: whether or not the French~ Language Services
Act is applicable in this case, the definitions in this Manual will serve to
explain ability in.French). This lex;el means:
Intermediate level: -- At this level one possesses some ability to work in French. One SHOWS
some spontaneity in language production but the fluency is very uneven resulting in halting
speech. One is able to participate in simple conversations on a one-to.one basis. The
vocal0ulary is limited to that used in simple, non-technical, daily conversational usage. One can
make and answer requests for information or directions, give simpre instructions and cliscuss
simple needs. When addressing this person the speaker may have to Slow down and reDeat if
he/she wishes to be understood.
The "Advanced" level is defined in the Manual as:
Advanced level: -- At this level one has the ability to participate in conversations and satisfy
many work requirements. One can discuss work related and other government related matters
with some ease and facility, expressing opinions and offering views. One is able to take pan in a
variety of verbal exchanges and to participate in meetings and discussion groups. However. one
still needs help with handling complications and difficulties. One is generally good in either
grammar or vocabulary but not in both.
When the grievor applied for the fUll-time job in Fort 'Erie in 1986,
she was required to have "fluency in French". She got the job. Before the
enactment of the French Language Services Act, no one ever questioned
her abiIity to handle the French conversation which was required to
perform the job.. During her service with the' MiniStry, in the Fort Erie
and Niagara Falls' Travel Centres, she worked in French when required.
She says she had no difficulty dealing with French-speaking visitors and
that. these visitors were very appreciative.' The. grievor never had to refer
5
a French speaking visitor to some other Consultant. The Ministry always
considered her to be a good Consultant.
In the Spring of 1985, a full-time .position was filled in the Niagara
Fails Travel Centre by Ms. Jacqui Phillip. She is rated as having
"Intermediate'' French.verbal skills. It was her move to the position of
Regional-Supervisor in Niagara Falls 'which opened the vacancy involved in
the October 1988 posting with which we are concerned.
Whatever evidence the Ministry.'had' concerning the grievor's
services in Niagara Fails and the services generally at that Travel Centre
· (inclt/ding, in Particular, the services of Ms. Phillip), suggested.that visitors
were very happy. The Ministry was satisfied that' ,it was Providing
effective service in the French langUage.'
Then along came the French Language serVices Act, 1986. For
various reasons, which we Will explain shortlY, in our vie~ this legislation
does not apply-to this ~ase. However, its enactment did lead to the
Ministry's decision to designate sixteen Travel Consultant positions in the
province as requiring an "Advanced'~ level of French verbal skills.
The Legislative Assembly in Ontario enacted the French Language
Services Act, 1986 because, as the Act says in. its Preamble; the Assembly
"recognizes the contribution ofthe cultural heritage of: the French speaking
PoPulation and wishes to l~reseive it for future g.enerafi?ns", and the
Assembly feels "it is desirable to ~arantee.th~ use of the French language
in institutions of the Leg e' and the Oo~,e~zru~ent 'O~-Ontan.'.O'. The
"French speaking population" about which theI Ac't speaks must be the
residents of Ontario wh6 a~e French speaking. This legislatipn was not
enacted in order'fo proq, ide better .service to the citizens of France or the
residents of Qui~i~c, not:'$f any other French speaking place outside
Ontario.
Section 5(1) of the Act piovides: ' .:
~i~f eo $.--(t) A person has the right in accordance with thi~,
MI r,,'k'e.x, in
Fter~h 10 communicale in French w~[h, and to receive avuilabl~
vices in French from, any head or centrul office of a govern-
ment agency or instilution of thc ~gisluture thu~ i~ designated
by the reguJulions~ and has Lhe ~me tight in res~cl ol~ any
o~her office of such agency or institution lhat is I~u[ed
~e5 an areu designuL~d in ~h~
Re~n~m (2) Sub~ection (~) i5 regaled thrc~ y~u~ uf~er it ~k~mc5 into
~ ~. 5 ~t] furc~ and ~he following 5ubsLimted
Ri~u (I) A ~on hu~ ~he righ~ in accordance wi~h ~hi~ Ac~
in Fresh communicate in French with. and to receive available
in French from. any head or cemrul office ol'a government
agency or institufiun of thc Legislature, und has th~
right in res~ct of any other office of ~uch.agency or
tion thut i~ I~uted in or ~rves an area de5ignaled' in Ihe
Schedule,
This section provides for the fight to services in French from the
following Ontario Government agencies and institutions--
· for three years after November 18, I986 (the date on which the
Act received Royal Assent, and therefore the 'date on which it
came .into force pursuant to section 17), if the agency~ 9r
institution is designated by the regulations
-- the head or central office,' and
-- any other office that is located in or serves an area designated
in the Schedule.
· after November 18, 1989,
-- the head or central office, and
-- any other office that i~ located in or serves an area designated
Thus, there is a different r6girne in the first t/tree years from the
later r~gime. In the first-tltree years, the only agencies and institutions
which are. affected are those which have been "designated by the
regulations". The posting in this case occurred during the first three years
of application of the Act, and counsel for the Ministry was not able to point
to any regulation which designated the Ministry of Tourism and Recreation
as one of those agencies or institations to which the Act would apply in the
first three years. Therefore, this is one reason for which we find. that it
has not been proven that the Act applies to our case.
, And there is another reason for this_.f'mdirig.'..
Whethe~ it be in /fie first 'thr~e years or'thereaf.ter, Section 5(1)
provides for serVifies in French in' "any .other office" of the agency, or
institution' only if this Sther office "is located in or serves an area
designated.ih-the SChedule" (emphasis added), The Schedule 'designates flue
areas of the p.rovince where [here is a ~ignificant French speaking resident
popuiatioh,' The Sch~dul~ does not designate Niag-~ra Falls..Within the~
Regional Municipality of N!_agara, the only designated areas are the cities
of P~)rt Colbome an.d' Welland~' Therefore, the_.Niagara Falls Travel Centre
is clearly not located in an areadesignated"in the S~hedule.
Does' this Trave1 Centre serve an area designated in the Schedule?
We had no evidence that ..the Fren.gh speaking p.eople in Port C°lbome or
Wella~d',~ver availed .th~selv%'o-f }.he sei-v£~es (~f the Travel Centre in
Niagara Fall. T~e PUipose of this Travel C~ntre appears to be to welcome
people t~rbm outside Ontari~ to the province' When they cross into ontario
from'the United States at Niagara Falls, or to w~ic0me all visiiors to the'
Fails area itsel/when they. come to,Niagara Falls from anywhere. It was
'suggested to us that we should'ta~, e .a broad view and find that this Travel
Centre "served'i. French sp~aki.n.g people from alI over Ontario who
happened to ira~ei.to Niag~a Fails.' 'But. there' was no evidence that these
people' do'tr~v~i'to miag~ l:/alls ir~ any si,gni_.'.fic.ant...n .umbers. Indeed, from
Whatever slim evide,nce...was ..provided... .. to. us,. .it .-,aPPears· ~hat the
o r? ng majority of French speaking.v.is, it6rs to ~e.Travel_Centte
come from Europe or 'Quebec: TherefOre,' in our view,, it cannot be said
that th~'~i~ga}a Fal~,s.Travel Cenire ~erves an area designated in the
Schedule.
'Th"us,' we' t;-md that ~e Act is not applicable in this case.
But even if we did fred that it applied, we would come to the same
result.
If the Act applied, Section 7 provides that the obligations of
government agencies and institutions of the Legislature under the Act are
"subject to such limits as circumstances make reasonable and necessary,' if
ail reasonable measures and plans for compliance with this Act have been
taken or made". Thus, the Act calls for rea$olaable measures.
Which leads to the same test as has been applied by this Board for a
long time concerning the requirements established for a job by the
employer.
The real issue is whether the requirement of' "Advanced" verbal
skills in French is reasonable for the Travel Consultant' position for which
the grievor applied. ..
The evidence at- our hearing showed that there are a substantial
number of French speaking visitors to the Travel CentTM in Niagara Fails.
It is important that effective services be' Provided in French' so that the
Ministry can carry out its mission of increasing the tourism expenditures in
Ontario.
Ms. Martha Lowrie, Who has worked for the Ministry since 1978,
and is now the Acting Coordinator of Travel Centres for the whole
province, suggested that the "Advanced'" level is required~ She herself
would be rated at the "Intermediate" l~vel, and she felt that she could not
offer a good travel counselling session in Fx:ench.
However, the need for French services_ at the Niagara Fail's Travel
Centre pre-dated the French Langudge Sergices Act, 1986~ and the
Ministry did require "fluency in French" before the Act. The grievor, and
others with "Intermediate" French verbal ~kills, filled this bill and Ms.
Lowrie acknowledged that there was no evidence whatsoever of any.
complaint or problem with the French language, services at the Niagara
Falls Travel Centre.
-The gfievor confirmed 'that' she had never.had anj Problem S~rving
visitors in' 'French, and that the~'Freneh gpeakirig-visitors seemed very
-appreciative 6f the information and adviae she gave them.
It is agreed by the parties that the grievor's ;rafing in. verbal French
'isa "solid mid-Intermediate".' The definition' of this level, quoted in full
earlier in this award, says-that a person who'has this'ability
is able to participate in simple conversations on a
one-to-one basis. The vocabulary is limited to
that used in simple, laon,techni~:~l, daily
,. conversational usage. '..One can make and answer
-. requests for .information..i or directions, give',
· " simple instructions and discuss .s.'~_anple nee~. ..
hi Our view, the types of coav~i;sati6n des'cfibed in this def'mition are
the-types of Conversation engaged, in by a Trax/~I Consultant. The Travel
-cOnsultant is not selling nuclear reactors. The TraVel Consultant is selling.
sights, sodndi~, 'activities, ac'commodation, ~itta'a'ctions.' -' This. is ";simple",
"iaon-technical:', "daffy conversatiohal usage.. '~' -'
· '. The French Lan'gUage. $.~rvices-' Act'Irapleraentdtion Procedu're
Manual, in Appendix D ("Description of French Language Capability
Levels of Designated PositionsD, sets' out the deflrdfii>ns of the various skill
:' Land ability levelS,' including those foi-~the intern3~diate' and A~lvanCed
" 'verbal skills that we have quoted iri~fuli in ihis 'award, and then concludes
In Practical Terms. .... .' , ~
The lower two levels of~skills, namely elementary
and intermediate, are c'onSidered nori-functional in
":"' 'terms of the~ French language r~qt/irements 'fOr
:.~ .... . , designated positions,, In. other words, the :,
employee who possesses only these skills cannot
10
perform the duties of the position requiring a
French language capability.
It was this passage which led the Minis, try's French Language Services
Committee (established to determine how 'the Ministry of Tourism would
implement its obligations under the new legislation) to designate the
Niagara Falls position as requiring "Advanced" verbal skills.
Ms. Lowrie served on the Committee. When she. called the grievor
to tell her that she had not been accepted for the posted posi~on in Niagara
Falls, she said that "Advanced" French verbal skills were now required
because "This is the law".
We have already said thatl,in fact, it was not "the law", because the
Act didn't even apply to the posted position. And even if the Act did apply,
the issue is--what is a reasonable requirement, given the particular job
functions of the Positi°n in qUestiorl.
Why should the Elementary and Intermediate levels.of skill always
be considered "non-functional"? Surely there are jobs .among the thousands
of positions in the civil service which do not require, conversation .beyond
the "simple", "non-technical", "daily conversational usage". · It is simply
not reasonable to say that every_ French,speaking job. in the ,Ontario civil
service requires more that "simple", "non-technical", "daVy conversational
usage"
Section 7 of the Act requires .Ontario Government.agencies and
institutions to do. what is reasonable to meet their obligatiqns to provide
services in French. This does not mean that only people with. l'Advanced"
French skills can function effectively to provide these services. In our
view, the conclusion in the Manual that "In practical terms..:...The lower
two levels of skills, namely elementary and intermediate, are considered
non-functional" goes, bey6nd What is requi/'ed under the A6t.
And the evidence is right here in this case. The Niagara Falls Travel
Centre has been offering Service in French for years. The new legislation
didn't change anything in terms of the need for this Centre to serve the
~effectively
'public in French. The freed was alway~i the're, and it wa~
~.eini, .met..Th.e grievor .was one of those who P~'ovided the se .rvice;. She
also provide,~ service in French in Fort' Erie, where her job"requires
, "fl.U n:cy,.'m, French".'., The Ministry's own_. evidence. :.suggests that .this
service has ,alway.s been satisfactory. In .these circumstances,..in our v, iew,~it
is simply not reasonable now to impose some higher, !e.v.~l of French
capabi~ty in order to do the job.
In effect, the gri~'or'haa-appiied fOr aj°b-which sile l{ad already
done satisfactorily, and the job had not changed. A. higher leCel of French
capability than the grievgr' already had .was not a reasonabl~ ,.requirement
~'or this job.
12
In sum, we find that the Ministry did violate Article .4.3 of the
collective agreement by denying the posted position to the grievor for the
sole reason that she did not have "Advanced" F~ench' verbal skills. We
order now that the grievor should be pul/into 'the 'position and she should
be compensated for any financial loss she suffered as a result of the
Ministry's violation, including a mileage allowance for the extra distance
she had to drive each day since the 'date on which she would have first
assumed the position.
We will reserve our jurisdiction to hear and determine any matter
relating to' this order.
Done at Eondon, Ontario, this 9th day of JanUa~') ,199o.
_{~. S~rlue]s, 'v ~'c e~Cha i rp e r Son
I. Freedman~dVlember
M. 0 Toole, M~mber