HomeMy WebLinkAbout1989-0196.Beck.89-11-03 ONTA RIO EMPL O¥~.$ DE LA OOURONNE
~ROWN EMPLOYEES DE L 'ONTA RIO
GRIEVANCE COMMISSION DE
SETTLEMENT Ri~GLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/T~L~:PHQNE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8- BUREAU 2100 (416) 598.0688
196/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYERS COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Beck)
Grievor
- and--
The Crown in Right of Ontario
(Ministry of Government Services)
Employer
Before: M. V. Watters Vice-Chairperson
M. Vorster Member
G. Milley Member
For the Grievor:
J. Bouchard
Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
For the Employer:
P. Young
Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
Hearing Date: August i4, 1989
DECISION
This proceeding arises from the grievance of Ms. Agnes Beck
dated February 27, 1989 which claimed she had been wrongfully
denied the position of Purchasing Supervisor (Purchasing Officer
2) in the Sudbury District Office of the Ministry of Government
Services in the context of competition number GS 358/88. The
grievor requested therein that she be awarded the position
together with full compensation.
At the time of the competition, the grievor was employed by
the Ministry of Transportation as'a Purchasing Officer 1 in it's
Sudbury office, Seventy-five percent (75%) of her time in this
position was spent on the telephone' purchasing the required
items. The balance of her time was utilized for writing out the
necessary order forms, The Purchasing Office was also staffed by
a Manager and a Purchasing Officer 2. The Board was advised that
none of the three.positions required the incumbent to speak
French.
The grievor initially applied for the position here in
question in September, 1988 after observing the posting for same.
This posting stated that one of the qualifications for the
position was" advanced oral French-language skills" A decision
was subsequently taken by the Employer not to interview any of
the applicants. A second notice, containing the identical
language requirement and a wider area of search, was then posted.
The grievor reapplied and was interviewed by a competition panel
on.February g, lgSg, During the course of the interview, she
Questioned the need for the French language requirement. It was
her recollection that one of the panel members told her that the
need to use the French language had arisen on only six occasions
in the past thirty years. She also recalled being then informed
that a job offer would not be forthcoming unless she passed a
"French language test". The grievor subsequently took an
informal test which was conducted over the telephone by a person
from Toronto. It was clear that she was not satisfied with the
conduct and quality of such test. The grievor was then
officially tested by a representative of the French Training and
Evaluation Centre of the Human Resources Secretariat. This
resulted in her receiving a rating of intermediate minus. It was
estimated that 1035 hours of language training would be necessary
in order for the grievor to attain the required advanced
standard. This, we were told, would take a considerable period
of time as such training is provided on the basis of four hours
per week. Neither the grievor nor the Union presented any
serious challenge to the accuracy of t~e aforesaid test. The
grievor was next advised by Mr. D. Lafraniere, Manager-Finance
and Administration, that she was not selected for the position as
she "did not meet the required French Language Skills". Her
grievance was motivated by the belief that French language
capability was not a prerequisite for successful performance in
the position.
Mr. G. Silvestri, the previous incumbent of the position
being sought, described the job of Purchasing Supervisor.
As stated in the position specifications, its purpose, is "to
supervise and be responsible for the procurement of supplies,
materials and contracts required for minor capital construction,
renovations, repairs and maintenance of District government owned
and leased facilities." Mr. Silvestri retired in September 1988
after having spent thirty years with this Employer. He had
worked as a Purchasing Officer since 1969. He testified that
approximately ninety percent (90%) of his work as ~ Purchasing
Supervisor involved the tendering process. This aspect of his
job included some travel throughout the District to attend at
tender openings. The balance of his efforts were in respect of
the purchasing of material. Mr. Silvestri estimated that ninety
percent (90%) of the job necessitated contact with the public.
This "public" was variously described during the Course of the
hearing as being comprised of "suppliers", "vendors",
ahd"contractors", the terms at times being used interchangeably.
The Purchasing Supervisor was also required to supervise a Clerk-
Typist and a Truck Driver. The Clerk Typist was primarily
responsible for typing and clerical duties associated with the
tendering and purchasing functions carried out by the Oistrict
Office. Given these responsibilities, they naturally learned
much about the technicalities of the tendering process, it would
appear that as a consequence, this position was used as a back-up
to the Purchasing Supervisor when the latter was unavailable due
to absence from the office.
Mr. Silvestri testified that neither he nor the Clerk-Typist
could speak French and that all of their business was therefore
conducted in the English language. He stated further that
tendering was done in both English and French language newspapers
and that many of the suppliers and contractors with whom he dealt
were French speaking. It was his evidence that all of these
persons conversed with him in English. He conceded, however,
that white the bilingual suppliers might have preferred to speak
French, they did not do so as they were well aware of his
inability to conduct business in that language. Mr. Silvestri
could not recall a situation in which the person he was speaking
to did not understand English. While he denied ever seeking the
assistance of a bilingual Staff, Mr. Silvestri did agree that the
use of a third party to faci.litate or interpret would be both
inefficient and unprofessional. This witness believed that there
were approximately ten to twelve bilingual staff within %he
District Office. He also noted the existence of a translatiom
service in Toronto, Ontario, which might be available should the
Purchasing Supervisor, or other staff, be confronted with
difficulties in communication.
Mr. A. Gibson, Oirector, Realty Group-Property Management
Division, Northern Region, gave evidence on behalf of the
Employer. Generally, he supervises the Division's administration
of the government's real estate portfolio in the Northern Region
which is comprised of three Districts. Mr. Gibson stated that
the incumbent in the Purchasing Supervisor position was one of
approximately two hundred and fifty employees across the Region
who ultimately reported to him. He also confirmed Hr.
Si]vestri's assessment of the job in that he agreed its primary
focus was on tendering with purchasing being a secondary element.
In his estimation, between from seventy (70) to ninety-percent
(90%) of the Purchasing Supervisor's time would be devoted to
dealing with the public.
Mr. Gibson testified that when the French LanGuaGe Services
Act,1986, was first tabled as a Bill, he began to consider its
future impact on service delivery in the areas under his
administration. He commenced discussions with District and Area
Managers with respec~ to present and future capacity to deliver
French language services. A management group was subsequently
formed consisting of himself, the three District Managers
(Sudbury, North Bay, Thunder Bay), and the Regional Executive
Officer which worked in conjunction with the Ministry's French
Language Co-ordinator, This group assessed the needs and
capabilities of each locality as well as those of the Region as a
whole. In this regard, they visited all of the District and Area
Officers to solicit input and gather relevant information.
Additionally, the group considered the guidelines contained in
the French Language Services Act Implementation Procedure Manual
published by the Office of Francophone Affairs. After a process
which took approximately one year, a decision was taken to
designate a number of positions throughout the region, including
the one relevant to this dispute, as bilingual.
In the process of designation, the management group
Attempted to isolate positions which had a high degree of public
contact. As noted, this criterion was satisfied vis a vis the
Purchasing Supervisor. Mr. Gibson testified that, subject to the
receptionist, the Purchasing Supervisor had the greatest extent
of public contact. While the group also considered the Clerk-
Typist position, it ultimately elected to designate the position
of Purchasing Supervisor as such had the highest'technical level.
It was the group's assessment that public service would be
promoted by such a designation. Mr. Gibson estimated that
twenty-five (25) to thirty percent (30~) of the suppliers and
contractors in contact with the Purchasing Supervisor spoke
French. While he recognized that the demand for French language
services was not significant in ~987 or 1988, he forecast that
such would increase with the effective implementation of the
Frencb_L~q~uag$ Services Act. 1~88, in November, 1989. Mr.
Gibson also agreed that the suppliers and con[factors who might
otherwise have wished to speak French, did not do so when Hr.
Silves%ri was on the job as they were well aware of his inability
to communicate in that language. It was his opinion that the
designation in question would encourage those persons to speak
their preferred language. Mr. Gibson appeared to dispute the
former incumbents evidence with respect to the incidence of
French language Inquiries. As stated above, Mr. $ilvestri denied
that any occurred which required him to seek assistance
elsewhere. Mr. Gibson stated that such did in fact occur, albeit
intermittently, and that in those instances the resultant
problems in communication had to be resolved in an adhoc fashion
through the somewhat inefficient use of other bilingual
personnel,
Mr. Gibson testified that the management group attempted to
designate in a way which would minimize any disruption for
current staff. They wished to implement the process through
attrition if such could be achieved. This was possible in
respect of the Purchasing Supervisor position given the
retirement of Mr. Silvestri in September, 1988. The group als~
considered the fact that the District of Sudbury was designated
under the provisions of the French Lanqua~e Services Act, 1986,
although this consideration, in the opinion of Mr, Gibson, was
simply part of the larger issue relating to needs and
capabilities.
Ms. C. Auger, the successful candidate, attended the hearing
and presented evidence on ~ehalf of the Employer, Ms, Auger is
bilingual with French being her native language. She has a
certificate in French from Laurentian University. Her level of
French skills was not disputed in the instant proceedings. Ms.
Auger has been in the position as of June, 1989. Since that
time, she has spoken to suppliers both by telephone and in-
person. In her estimation, five to ten percent (10%) of her
contacts are conducted in French. Ms. Auger indicated that in
some of her conversations, the caller has switched from English
to French once they were aware that she could communicate in the
French Language.
The position of the Union was that the French language
requirement per se was not reasonably related to the needs of the
position. It did not contest the case on the basis that advanced
oral French, as opposed to some lesser level of skil!, was
required. This submission was premised primarily on the fact
that an English speaking person had satisfactorily occupied the
position in question for some twenty years and that services
within that period had not been offered in French. It was argued
that this history served to distinguish this dispute from that
brought before the Board in Giasson, 2250/87 (Watters) and
HacKenzie, 1243287 (Ratushny) as in both of those instances
bilingual services had been provided for prior to the adoption of
a French language requirement. It was also submitted that
alternate methods existed for de]ivering the service. In this
regard, reference was made to there being ten bilingual persons
within the District Office and to the existence of a bilingual
service centre in Toronto, Ontario which could be accessed by
telephone. Lastly, mention was ma~e of the guidelines contained
within the French Language Services Act Implementation Procedure
Manual. The Union asserted that such guidelines had been
breached by the Employer's failure to designate the Clerk-Typist
position notwithstanding that its incumbent would engage in
telephone and over the counter contact with the public and would
serve in a back-up capacity to the Purchasing SuPervisor. We
were asked to infer that the need to designate the latter
position did not exist as the Employer had not made any lasting
arrangement for the supply of French language services in ~heir
absence, For all of these reasons, the Board was requested to
award the position to the grievor. Counsel argued that this was
the more appropriate remedy as the sole reason for rejection was
that the grievor could not satisfy the language requirement.
The Employer, in response, submitted that the requirement
was reasonably related to %he position both in the abstract and
in the context of the new regime imposed by the French Language
Services Act, 1986, Reference was made to the fact that ninety
percent (90%) of the Purchasing Supervisor's time was spent
dealing with a public which had a significant Prench speaki.ng
component. It was argued that the Suppliers and contractors
would have made more extensive use of such a service had the
prior incumbent been able to speak French. This was supported by
the concession of Hr, Silvestri that it was likely the French
language "vendors" would have preferred to transact business in
French and by the evidence of Ms. Auger as to the incidence of
French language contacts after she assumed the position in June,
1989. The incumbent had stated in her evidence that such contacts
occurred on a daily basis. The Employer also alluded to the
statements of Mr. Gibson to the effect that Nr, Silvestri had
received calls in French in the past and that such were dealt
with in a less than satisfactory manner given the human resources
then in place. It was further submitted that it was reasonable
to designate the Purchasing Supervisor position, as the person
occupying same would have the primary responsibility'and
technical expertise to respond to the inquiries of contractors
and suppliers. In contrast, the Clerk-Typist spent approximately
sixty percent (60%) of their time engaged in typing and clerical
functions. Additionally, it was noted that there was little, if
any, evidence as to the nature of the service centre in Toronto
and as to whether it had any capacity to deal with tender matters
arising in Sudbury.
Counsel for the Employer relied on the Frgnch Lanquage
~ervices Act,1986 in support of the action taken. Specifically,
it was suggested that designating the position hereunder
consideration was consistent with the intent of the
aforementioned legislation as it served to promote the extension
of French language services. It was further noted that the
population of the District of Sudbury is 35.8/ francophone and
that all of the District has been designated under the Act. We
were asked not to interfere with the thorough and time consuming
process which the Employer had utilized in an effort to comply
with the legislation. In the alternative, the Board was
requested to order a re-run of the competition should we find
that the language requirement was unreasonable. Three separate
postings, were used before a candidate was ultimately selected.
Throughout the process, applicants were not assessed absent the
French language requirement. It was submitted that another
competition would be necessary for purposes of such assessment
and to ensure that others, who had failed to apply because of ~he
requirement, were accorded an opportunity to contest the
position. The Employer did not agree with the Union's contention
that Ms. Beck was necessarily the most qualified candidate should
the language requirement be set aside.
The Employer relied on the awards in Giasson and MAcKenzie
cited above. In the former award, the grievor was denied an
interview for the posted position of Construction Safety Officer
in the Sudbury Office of the Oonstruction Health and Safety
Branch of the Ministry of Labour. The posting stated that
fluency in French was essential. The 9rievor was denied the
interview opportunity as he did not possess such ability. The
majority of the Board found that the requirement was reasonable
as the Employer had previously had the staff necessary to deliver
a bilingual service. That capacity had been lost after June,
t987 when the bilingua] employee went on long term disability
bene¢its. ~n view of this prior capacity, the majority of the
Board was satisfied that the Employer could reasonably require
f]uency in French for the position in question. Additionally,
found that the need for such requirement predated the passage of
the French Lanquage Services Act,1986, given the nature of the
job, the demographics of the region, and the prior ability %o
deliver French services. Ultimately, the Board looked to the
position rather than to the legislation in concluding that the
qualification was reasonably related to the tasks to be
performed. In HBcKen~ie, the grievance concerned the position of
Driver Examiner Supervisor in the New Liskeard Office of the
Ministry of Transportation. In that instance, eighty percent
(80%) of the work involved direct contact with the public,
Bilingual services had previously been available prior to this
capacity being made a job requirement. The grievance conteste~
such requirement. It was agreed by the parties that the grievor
was the best qualified for the position and would have been
accorded same but for the fact that he could not spear French.
The majority of the Board assessed the impact of the French
Languages Services Act,1986 and concluded that it provided an
important context for assessing the reasonableness of the
relationship of the qualification to the position. It appeared
to find that there was significant evidence of the aemand for
French services from the fact that four to five percent (5%) of
the clientele were clearly French speaking and might have some
difficulty communicating in English. Further, it was estimated
that if a French speaking capacity were available, between
fifteen and twenty percent (20%) of the clientele would take
advantage of that opportunity as their preference. The Board did
not consider the suggested alternatives to be feasible in the
circumstances.
There is no doubt that the Employer may initially establish
the qualifications required for a job pursuant to it's management
rights which are reserved by section 18(1) of the Crown Employees
Collective Bargaining Act, R.S.O. 1980, Chapter 108, as amended.
It is similarly clear that decisions taken pursuant to such right
are reviewable. The Board concurs with the standard of review as
stated in the following excerpt from Re Reynolds Aluminum Co.
'Canada Ltd. and International Molders and Allied Workers Union,
Local 28, 5 L.A.C. (2d) 251 (Schiff, February 1974)'
"In the ordinary exercise of management functions
employers may determine in the first instance what
specific qualifications are necessary for a particular
job and what relative weight should be given to each of
the chosen qualifications. After an employer has made
the determination, arbitrators should honour the
managerial decisions except in one or both of two
circumstances: First, the employer in bad faith
manipulated ~he purported job qualifications in order
to subvert the just claims of employees for job
advancement under the terms of the collective
agreement .... Secondly, whether or not the employer had
acted in good faith, the chosen qualifications bear no
reasonable relation to the work to be done." (page 254)
The Union did not assert a claim of bad faith in this instance.
The sole issue confronting us, therefore, was whether the
qualification was reasonably related to the work to be performed.
In this regard, we agree with the statement found at page 2 of
the MacKenzie award that this test is premised on a criterion of
"related" as opposed to "necessary" and that the evidence in
respect of such relationship must be "more than tenuous or
speculative." Additionally, we would concur with the comment of
the Board therein that the dictates of the French Lan~uaqe
Services Act,1986, which establishes the right to receive
available services in French from government offices in
designated areas, provides an "imDortant coDte×t for assessing
the reasonableness of the relationship of the qualification to
the pgsition" (page 5).
After a careful consideration of all of the evidence and
argument presented by the parties, the Board concludes that the
French language requirement was reasonably related to the tasks
to be performed by the Purchasing Supervisor in the Sudbury
District. Unlike the situation in Gi~sson, the decision to
incorporate the language requirement in the posting was
motivated, in part, by the enactment of, and the need to comply
with, the French Lan~uaqe Services Act,198§. In our judgment,
the process described by Mr. Gibson, which ted to the
establishment of the qualification, was comprehensive and based
on considerations which were directly related to the demands of
both the legislation and the position. Throughout, a major
objective of the Employer was to arrive at a result which would
enhance the existing level of French language services within the
District and the Region. It wished to ensure that a reasonable
level of service could be provided to those persons who wished to
communicate with government in French. We think it reasonable
for the Employer to isolate positions having a significant degree
of public contact as such would likely serve to maximize the
opportunity for service delivery in that language. More
specifically, we find that the Employer property considered the
nature of the responsibilities exercised by the Purchasing
Supervisor, Persons in the position would have substantial
contact with contractors and suppliers, often on issues o¢ some
complexity. The evidence presented suggested that between twenty
five and thirty percent (30%) of this group of individuals, who
may be regarded as consumers of the service, were French speaking
and might wish to avail themselves of the opportunity to speak in
their native language. While demand for such a service had ¢~o~
been great in the past, it is a reasonable inference that it
would increase if the service actually was available. This seems
to be borne out by the evidence of the present incu,nbent and,
indeed, such likelihood was con'ceded by Mr. Silvestri. The
demographics of the District would also suggest that services in
French would likely be utilized by those persons in contact with
the Purchasing Supervisor. The Board has been fur%her persuaded
that it was preferable to apply the qualification to the position
with the higher base of technical' knowledge, While the Clerk-
Typist has a certain amount of technical expertise by virtue of
the job they perform, the majority of their time is devoted to
typing and clerical functions. We find it understandable why the
Employer would wish to integrate a French language caoacity in
the POSition which has the primary responsibility for the
administration of the tendering and purchasing process. The
Board is unable to find that the alternatives suggested by the
Union would provide for a more effective use of such capacity.
We were not given much evidence as to the abilities of other
bilingual staff within the District, nor were we left with any
firm understanding of the bilingual service centre located in
Toronto. Lastly, we think it was reasonable for the Employer to
implement the French Lanquaqe Services ~ct,1986 in such a way as
to minimize disruption to existing staff. This goal was readily
achievable in this case given the retirement of Mr. Silvestri.
For all of the above reasons, the grievance is denied. Had
we found otherwise, the Board would not have been inclined to
award the position to the grievor. Rather, we would have ordered
a re-run of the competition. As stated above, three postings
were necessary before the position was filled. Throughout the
process, applicants were not assessed without reference to the
French language requirement. A fourth competition would permit
for such an assessment. Further it would allow those prospective
applicants, who might have been discouraged from previously
applying, 15o submit their applications, Zn our judgment such. an
order would best accord with article 4.3 of the collective
agreement.
Dated at Windsor, Ontario this 3rd day of Noverober 1989.
M.V. Watters, Vi ce-Chai rperson
M. Vorster, , Member
6. Milley, ~Membe r