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HomeMy WebLinkAbout1989-1236.St. Pierre.90-05-16 ONTA RiO EMPL 0 ¥£S DE LA COURONNE ~'~ CROWN EMPLOYEES DE L 'ONTAFtiO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS tSO DUNDAS STREET WEST, SUITE 2100, TOI~ONTO, ONTARIO. M5G IZ8 TELEPHONE/T~L~PHONE: (416J 326-~3~8 1236/89 i IN T~E ~ATTER OF AN ARBITI~ATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (St. Pierre) Grievor - and - The Crown in Right of Ontario {Ministry of Transportation) Employer - and - BEFORE: R.L. Verity, Q.C. Vice-Chairperson M. Lyons Member A. Stapleton Member FOR THE H. Law GRIEVOR: Grievance Officer Ontario Public Service Employees Union FOR THE J.P. Gallagher EMPLOYER: staff Relations Advisor Ministry of Transportation HEARING: February 14, 1990 DECISION In a grievance dated June 1, 1989, Wendy St. Pierre alleges wrongful denial of the position of Driver Examiner at Timmins (Competition #MT-45/EXT). The vacancy was created when Roger Dubeau,l a fully bilingual employee, was promoted to the position of Centre Supervisor at Timmins. The matter concerns an alleged violation of Article 4.3 of the Collective Agreement which reads as follows: In filling a vacancy, the employer shall give primary consideration to qualifications and ability to perform the required duties. When qualifications and ability are relatively equal, length of continuous service shall be a consideration. One of the stated qualifications for the posi%ion was "advanced oral French-language skills". The grievor was denied the position for the sole reason that she had not attained the advanced level rating. It was agreed that at the time of the competition, the grievor was at the "intermediate" level of oral French language skills. The position was awarded to Cecile Lavigne, an external applicant who had the advanced level oral French proficiency. Miss Lavigne was present at the hearing but chose not to participate. The Employer acknowledged that the grievor would have been the successful applicant on the basis of relative equality, had she possessed the advanced level qualification. The Union maintains that the Employer violated Article 4.3 of the Collective Agreement by applying a blanket policy requiring advanced level French in all positions requiring bilingual ability. The Union maintained that the grievor's "intermediate" level of French language proficiency was suitable for the position. The French Language Services Act Implementation Procedure Manual contains the following relevant definitions with regard to French language skills: 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 vocabulary is limited to that used in simple, non-technical, daily conversational usage. One can make and answer requests for information or directions, give simple instructions and discuss simple needs. When addressing this person the speaker may have to stow down and repeat if he/she wishes to be understood. 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 part 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. The grie¥or works as an Inside Examiner at the Drivers and Vehicles Office in Timmins. The Inside Examiner's position requires fluency in French and English at the "advanced" level of proficiency. As indicated previously, the grievor does not have the advanced rating. However, following a competition, she was appointed to the position on a contract basis from January, 1986 to December 21, 1987, and then she was appointed to the probationary staff. On January 6, 1988, the grievor was evaluated for French language proficiency by a certified government evaluator and was placed at the intermediate level. In December 1988, at the instigation of District Manager Maurice Desjardins, she was appointed to the regular staff. However, management withheld any pay increase until she attained the advanced level of French proficiency. The grievor has been married to a bilingual francophone for approximately ten years and is the mother of two bilingual children. Apparently the children speak French at school and church, although both French and English are spoken in the home. The grievor has fully complied with the Ministry request to attempt to upgrade her French language skills. Indeed, the Employer has subsidized the grievor's tuition in the various educational programs. Beginning in 1987, she took four separate French courses at Northern College. In addition, she successfully completed a three to four month conversational French course (May - August, 1989) atlLaurentian University and achieved a respectable mark of 73%. The ~rievor testifie6 that she is required to use oral French skills in her job as Inside Examiner and that she has done so successfully and without apparent customer complaint. Her evidence was to the effect that as an Inside Examiner she would handle French language inquiries varying in number from two a day to two a week. However, she candidly acknowledged that she mentally translated from English to French when conversing in the French language. The grievor was given a three month assignment in a Driver Examiner Training Program at Timmins from March to June, 1989. According to her testimony, the secondment focused exclusively on road testing duties and during the assignment, she experienced no difficulty administering two road tests in the French lan§uage including an explanation for a "failure" to one of the applicants. Maurice Desjardins is the Ministry's District Manager at Timmins. He worked for 8-I/2 years as a Driver Examiner including six years at the Timmins office. Mr. Desjardins testified that the francophone population in the District of Cochrane is in excess of 51%. In the City of Timmins, 41.5% of the population are francophones and that while most are bilingual, many prefer to receive their services ~n French. According to his testimony, the decision was made to post the position at the advanced level because of demographics and that it was deemed important for a Driver Examiner in Timmins to communicate effectively in either official language. Mr. Desjardins explained that the Timmins Driver Examiner may be required to provide relief services in any area of the Cochrane District and to work alone in predominantly francophone areas. The three man selection committee was composed of Mr. Desjardins, Roger Hudebine, Human Resources Officer in North Bay and Zigmund Janko~ics, Driver Program District Supervisor. Two segments of the competition dealt with the French language qualification. One involved the translation of a letter from French to English. The second segment was a French conversation on a topic of the applicant's choice. The grievor chose to speak about a lost licence. Mr. Hudebine assessed the grievor's French speaking capacity at the low end of the intermediate rating. Mr. Desjardins agreed with that assessment. In fact, he suspected that the grievor had not achieved the advanced level. In Mr. Desjardins opinion, the grievor seldom spoke French at work and when she did, she conversed in "a halting form" of speech. Further, he observed that the grievor had to seek assistance of other employees when dealing with francophone clients in the office, Roger Hudebine, whose first language is French, is responsible for co-ordinating French language services in the Ministry's northern region. As indicated previously, Mr. Hudebine was of the opinion that the grievor's French speaking capabilities were on the low side of the intermediate level. Mr. Hudebine is not, of course, a certified language evaluator. He acknowledged 'that he erred in completing a government form which stated that the grievor was one of three qualified candidates. In his opinion, the grievor lacked the required advanced proficiency to merit qualification for the position. Final argument took the form of written submissions. Able and detailed arguments were subsequently received by the 8oard accompanied by numerous arbitral precedents. The submissions can be briefly sun~narized. The Union does not challenge the designation of the position as requiring an appropriate level of French language proficiency, but submits that the "advanced" level qualification is not reasonably related to the job - hence the Ministry violated Article 4.3. The thrust of Mr, Law's argument is that the grievor's demonstrated success in providing French language services as an Inside Examiner and on secondment as a Driver Examiner constitute a similar fact situation to those in OPSEU (Daly) and Ministry of Tourism and Recreation, 1440/88 (Samuels}. In the alternative, the Union contends that the grievor should have been given the position on an underfill basis. The Employer argued that there was no violation of Article 4.3 of the Collective Agreement and that in the context of the Tint, ins office the advanced level requirement for oral French proficiency is reasonably related to the job. Mr. Gallagher contends the grievor does not merit the position on an underfill basis. The French Language Services Act, i986 came into effect in Ontario on November 18, 1986. The Act establishes the right to receive available services in the French language from government offices in designated municipalities and districts. That right is provided in s. 5 of The Act which reads as follows: 5. - (1) A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature that is designated by the regulations, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule. (2) Subsection. (1) is repealed three years after it comes into force and the following substituted therefor: (1) A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule. S. 7 of The Act, also merits repetition: 7. The obligations of government agencies and institutions of the Legislature under this Act are subject to such limits as circumstances make reasonable and necessary, if all reasonable measures and plans for compliance with this Act have been taken or made. Clearly, s. 7 requires that "reasonable" measures must be taken. The Grievance Settlement Board has on numerous occasions restated the principle that under Article 4.3 management must exercise its discretion fairly and reasonably to determine qualifications that are reasonably related to the job in question. See, for example, McCormick and Ministry of Correctional Services, 1141/84 (Robe~ts~; O~SEU (L. McKenzi~ an6 Ministry of Transportation and Communications, 1243/87 (Ratushny); and OPSEU (Daly) and Ministry of Tourism and Recreation, supra, (Samuels). The issue before us is whether or not the advanced level qualification can be said to be reasonably related to the job functions of Driver Examiner in Timmins. We have difficulty with the Union's contention that the facts before this Panel are %pon all fours" with the Decision in Daly. While the Award is - 9 ' helpful for the principles involved, in our opinion, the facts are quite dissimilar. In the Daly case, the Board found that The Act was not applicable and that the Niagara Falls Travel Centre did not serve an area designated under the Schedule. In that case the grievance wast. allowed on a finding that intermediate French proficiency was adequate for the position of travel consultant in Niagara Falls. Having carefully considered all the evidence, in these particular circumstances, the Board concludes that the advanced French language proficiency rating is reasonably related to the position in question. Further, we are satisfied that the decision to place the job at the advanced level was made in good faith and without discrimination. We must disagree with the Union's contention that the Employer's language requirement was rigidly applied. In our opinion, the Employer gave due consideration to a number of relevant factors in establishing the advanced level rating. The Ministry office at Timmins is located in an area which is designated under the FrenchlLanguage Services Act, 19B6. The City of Timmins contains a significant francophone population (41.5%). The previous incumbent in the position, Roger Bube~, ~s fully bilingual and as a result there was a pre-existing level of proficiency in providing French language services to the community. Indeed, consideration of applicants at the advanced level represented a lower level of service than had been previously enjoyed with~a fully bilingual employee. We accept Mr. Desjardins evidence that many francophone citizens in Timmins prefer to receive their services in French. In addition, management considered the need for the incumbent Driver Examiner to fill in, az needed, in relief assignments throughout the district. It should be noted that many communities in the Cochrane District, such as Hurst for example, contain primarily francophone populations. Given these considerations, management cannot be faulted for selecting the advanced level French proficiency qualification as being reasonably related to the position. The posting for the postion stated that "less qualified applicants may be considered at a lower salary". Therefore, it is understandable that the grievor as a competent employee in a related job would be granted an interview. The failure to attract a fully qualified applicant would have entitled the Employer to select the grievor on an underfill basis. However, when at least two qualified employees were identified during the competition, it cannot be said that the grievor should have been awarded the position on an underfill basis. In reality, the grievor holds her current position as Inside Examiner at Timmins as an underfill. She lacks the "advanced" level qualification for the Inside Examiner position. The panel, of course, is not required to determine the merits of that appointment. As indicated previously, the grievor is acknowledged to be a competent employee. However on the evidence, the Board is left with the impression that she has difficulty speaking French on a o~e-to-~ne b~sis. It may well be that the Laurentian University conversational French course has been of assistance to the grievor. She is to be greatly admired for her pursuit of the advanced French level proficiency. Unfortunately, she did not have that qualification at the time of the competition in question. She should be encouraged to pursue the goal. in the result, this grievance is dismissed. DATED at Brantford, Ontario, this 16thday of May , A.D., 1990. R. L. VERITY, Q.C. - VICE-CHAIRPERSON -~ IlI .'? Z/''I'/ ........ .h. .~, .: ~.-~'"~i', ...'~". ...... M. LYONS-~/I~EMBER ' z ' A~'~AAL~6~~6~ .................