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HomeMy WebLinkAbout1990-0226.Lake.91-07-24 \ .'- .' , I· .~: .. , . ';;';'1 ONTARIO EMPLOYES DE LA COURONNE : CROWN EMPLOYEêS DEL 'ONTARIO . , ." - ~ - ":' GRIEVANCE CpMMISSION DE 1111 SETTL.EMENT REGlEMENT BOARD DES GRIEFS 180 DUNDAS STREIT WEST, SUITE 2100, TORONTO, ONTARIO. MSQ IZS TELEPHONf;ITÉLEPHON£: (416) 325-1388 180, RUe DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG IZ8 FACSIMfLf;tTÉUÉCOPlf; : (416) 326- r396 226/90 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TliB GRIEVANCB SETTLEMENT BOARD BETWEEN OPSEU (Lake) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE: w. Kaplan Vice-Chairperson I. Thomson Member A. Stapleton Member FOR THE R. Healey . GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE S. McDermott EMPLOYER Counsel HickS, Morley, Hamilton, stewart & storie Barristers & Solicitors FOR THE John Simpson INCUMBENT Barrister & Solicitor HEARING NovelJÙ:)er 29, 1990 June 24, 1991 ,. . '\ . 3 were generally .equal in skill and ability, the Board should find that the employer properly took into account employment equity considerations in awarding the position to the incumbent. Mr. stirling is disabled as a result of a brain injury suffered as a child affecting his small motor skills. His disability precludes him from using knives in the work place. It was the employer's . submission that even if the Board found that the grievor and the incumbent were relatively equal, notwithstanding the grievor1s I greater seniority, the employer was under the obligation and had the right to award and accommodate the position to Mr. stirling. I With respect to the difference in seniority between the two applicants, the grievor began his employment in the part-time classified service as a Porter at the Hospital on October 9, 19ß6. Mr. Stirling began his employment in the part-time classified service as a Porter at the Hospital on October 16, 1986. There is, accordingly, only one week's difference in seniority between the grievor and the incumbent. In the employer's view, seniority was a consideration, but it was not the only one. Other considerations, such as employment equity, could be taken into account. The incumbent, Mark Stirling, was represented by his father on the first day of hearing, and by counsel on the second day of hearing. The incumbent submitted that he was qualified for the job in question, that he won the selection process and that that result . ,. . , 4 should not be set aside. The Evidence The grievor is a Porter and this position is classified as a Helper, Food Services. The grievor continues to occupy this position. On January 17, 1990 a full-time Porter's position was posted: The Ministry of Health, Brockville Psychiatric Hospital is seeking an individual with demonstrated institutional experience in food preparation and food service to assist in the preparation and distribution of meals for patients and staff, and to maintain the cleanliness of assigned areas. The successful candidate will have prior related experience in an institutional setting, communication skills to work in accordance with both oral and written instructions, the ability to operate food preparation and dish and pot cleansing equipment, and the demonstrated ability to maintain an acceptable level of attendance. In addition to the physical ability to perform .the duties of the position, the successful candidate will have the demonstrated ability to relate in a tactful and sensitive manner with patients and staff. The grievor applied for the position. The only other applicant was the incumbent, and both men were interviewed by a selection committee. It is convenient to set out the duties and related tasks indicated on the position specification: l. Assists in the preparation of food. by performing tasks such as: 30% -cleaning and preparing vegetables; -preparing pans; -portioning foods into pans for cooking or distribution. 2. Distributes meals to patients by performing tasks such as: JO% -loading food into hot food wagons; . , . 5 -delivering food and diet wagons to wards; -delivering milk to all areas. 3. Maintains cleanliness and sanitation in food service areas by: 35% -cleaning floors, shelves, refrigerators, kitchen equipment, food wagons, washing pots, pans and utensils; -picking up wet and dry garbage; -washing dishes using dish·machine. 4. Performs other related duties as assigned such as: 5% -directing patients in vegetable preparation. At the time of applying for the full-time Porter's position, the grievor had been occupying the job on an acting basis. There are eleven full-time Porters at the Hospital and three classified part-time Porters, and five unclassified part-time Porters. One of the full-time porters is permanently assigned to sanitation duties. Historically, the other full-time Porters have performed seven different Porter assignments on a rotating basis. They are: 1. Vegetable Room 2. Milk and Bread Wagon 3. Bake Shop 4. Oishwashing 5. Food Wagon 6. Pot Room 7. Float Prior to the incu~ent being awarded one of the full-time Porter positions, these seven posts were rotated on a nine-month cycle with one month spent at each post, with the exception of Food Wagon " . t 6 and Float, where each Parter spent two months. Some of the posts are hotter and dirtier and therefore less desirable than others. This rotation system has been in place for several years. The posting of the porter position in the instant case came about as a result of a retirement. As already noted, there were only two applicants; the grievor and the incumbent, Mr. Stirling. After Mr. stirling won the competition, the employer reconfigured the rotation by assigning Mr. stirling the permanent post of Food Wagon, where it is not necessary for him to use knives. Mr. Lake gave evidence on his own behalf. He described at some length the use of knives at the Hospital, focusing on their requirements on three of the postings occupied by Porters: the Vegetable Room, the Milk and Bread Wagon and the Float. He told the Board that knives are used every day, and that these knives are very sharp. Knives are used for cutting bread ~n the Milk and Bread Wagon, and work in the Bake Shop involves cutting cheese and prepared meats. Knives are also used in the Vegetable Room for peeling potatoes and cutting carrots. As the Float requires movement between the other posts, knives must be used. Porters are also called upon to deb one turkeys approximately twice per week, and the use of a knife is obviously required' ·to do this work. Moreover, the Porters are required to use various equipment for shredding food items such as cheese and onions, and they have certain responsibilities with respect to the salad bar that require 7 use of knives. Electric slicers are used, and this also requires fine motor skills. Mr. Lake testified that he has worked with Mr. Stirling and on one occasion he saw Mr. stirling cut himself with a knife. Mr. Lake also testified._~~at he has recei ved good job appraisals, and in fact these appraisals were subsequently introduced into evidence. These appraisals are uniform in their praise of Mr. Lake and two of them recommend· the grievor for advancement to a full-time Porter's position. ... .. Mr. Lake testified that he feels he can do the job of a full-time Porter, and believes that his experience as a part-time Porter and as an acting full-time Porter has given him the knowledge that he needs. In cross-examination, Mr. Lake was asked about hi> preparation for the interview, and he indicated that he did some reading beforehand about procedures in the dietary department. He told the Board that he has applied for a full-time Porter's position on three occasions in the past and was interviewed each time. Counsel for the employer asked Mr. Lake if the questions he was asked for this job competition were different than those asked on previous competitions, but he could not recall. Mr. Lake agreed, however, that there were no surprising questions asked at the interview. " I a Mr. Kevin Hudson also gave evidence on behalf of the union. He is a Porter at the Hospital and has been employed since 1983. He became full-time in ~988 . Mr. Hudson testified that the use of knives is required on the Food Wagon at night in preparing vegetables. Knives used to be required for slicing cheese, although this is apparently no longer the case as processed cheese is now served. Mr. Hudson testified that Porters may be required. to assist in turkey de-boning, and when this is required they must use a knife to do this job. Mr. Hudson told the Board that knives are required, one way or another, every day. Mr. Hudson testified to witnessing the incumbent cut himself with a knife. This occurred when Mr. HUdson was demonstrating potato peeling to the incumbent. On that occasion, Mr. stirling cut himself three times and received minor injuries. Following this accident, Mr. Stirling was assigned other duties so that he would no~ cut himself again. In.this regard, Mr. Hudson testified that knives were not essential because there were a variety of people available who could do cutting work. Mr. Hudson told the Board that he has worked with the grievor and the grievor is a good worker who gets along with his fellow employees. The first witness for the employer was Linda Eckert, who is the Regional Personnel Administrator for the Ministry of Health's Human Resources Branch in Brockville. Ms. Eckert has held this positión for four years. , ; 9 Ms. Eckert testified that in March 1990 she was approached by the members·of the selection panel in charge of running the competition for the Porter's position. The selection panel advised Ms. Eckert that Mr. ßtirling had won the competition. Indeed, Mr. stirling had received 131.7 points and Mr. Lake had received 120.6 points. In the result, Mr. stirling's score was 10.6% higher than the grievor's score. The concern was, however, expressed that Mr. Stirling, because of his disability, could not do all of the duties required of the position. As already noted, he cannot use knives. Ms. Eckert discussed with the panel the requirements of Article 4.3 of the Collective Agreement. Ms. Eckert advised the panel that the jurisprudence of the Grievance Settlement Board was unsettled as to what was meant by the term "relatively equal" but informed them that the Ministry generally took the position in job competitions that a ten percent differential was significant. She also brought to their attention the employer's employment equity program and discussed generally the accommodation requirements under the Human Rights Code. Ms. Eckert testified about employment equity at the Hospital. A province-wide self-identification survey has been conducted,. and Ms. Eckert told the Board that disabled individuals are under- represented in the Hospital workforce. The equity program seeks , . cf 10 to correct denial of employment opportunities to individuals with handicaps. Ms. Eckert also discussed the matter of accommodation, and advised the selection panel to look at the job description in order to determine what was physically required of the Porter1s position and whether an accommodation to the position could be made so that Mr. Stirling could do the job. The panel determined that an accommodation could be made, and along with the fact that Mr. Stirling had scored higher on the competition and was clearly able to do the job, the panel decided to make an accommodation by assigning Mr. Stirling permanently to one of the Porter positions where the use of knives was not required. In cross-examination, Ms. Eckert told the Board that while she was not a member of the selection panel, she was familiar with the job because she had classified it. She agreed that the job involves the use of manual skills, and that an interview was not a perfect method to assess manual skills. She pointed out, however, that the selection panel did not rely entirely on the interview. Employment records were also reviewed, and at least one of the members of the selection panel, Mr. Ed Laroque, is chef at the Hospital and was personally familiar with the work of Mr. Stirling and Mr. Lake. With respect to the differential in scores, Ms. Eckert repeated her evidence that she considered a 10% differential significant. Lesser differentials might, in her view, also be significant. It would, she testified, depend on the facts of each case, and one important fact to be kept in mind was the employer's equity ; 11 program. Ms. Eckert also repeated her evidence-in-chief that it was the panel who· determined that accommodation was possible, and given that the selection process had determined that he was the most qualified, the panel decided to of~~r Mr. stirling the job. Ms. Rickey Grushcow was the employer's second and final witness. Ms. Grushcow is the Manager of strategic Planning and Employment Equity for the Ministry of Health. Ms. Grushcow has been in this position for tl1ree years. The position involves developing employment equity policy and objectives. Introduced into evidence was a policy statement with respect to employment equity at the Mini.stry of Health. The statement> indicates that the Ministry has identified a "clear under-representation of persons with disabilities in its workforce. 11 The stated objective is "to increase the number of persons with disabilities recruited, retained, and promoted within the Ministry of Health. II Also introduced into evidence were the results of a survey conducted by the Ministry in June 1989 with respect to the number of persons with disabilities at the Hospital. Thi~ survey indicates that 7.4% of Ontario's population consists of persons with disabilities. Overall in the Hospital, 6.1% of the workforce consists of persons with disabilities. In the bargaining unit, 5.4% of the workforce consists of persons with disabilities. These figures indicate that the workforce of the Hospital is not reflective of the population generally. And in this regard, Ms. ~ I . I : 'I" 12 Grushcow testified that the 7.4% figure is generally considered an under-representation of the percentage of people with disabilities in the province. Ms. Grushcow was not cross-examined. Mr. stirling gave evidence on· his own behalf. He testified about the cause of his disability, meningitis, and he confirmed that his disability precluded him from using knives because he would cut toward himself rather than away from himself. Mr. stirling reviewed the job specification. It is not necessary to rehearse his evidence in detail. Suffice it to say that he told the Board that the only job he could not do was vegetable preparation. Some of the jobs noted on the position specification he did not do, such as milk delivery, but this was because he had not been trained to do this job, or asked to do it. Mr. Stirling testified that since winning the competition he has been assigned permanently to the Food Wagon and has performed his duties without incident. In cross-examination, Mr. stirling was asked by union counsel to describe. the Porter's rotation prior to the instant competition. Mr. Stirling testified that Porters were required to use knives to prepare vegetables, in the Bake Shop and on the .Float. Mr. stirling reiterated his evidence that knives were not required on the Food Wagon. Mr. Stirling was asked whether, in addition to his problems using knives, he had other problems such as spilling soups and purees and he responded that all the Porters spilled things from time to time. : 13 Mr. Stirling also testified that the Food Wagon post was considered least desirable among the Porters because it started early and finished late~ Following Mr. stirling's evidence, Mr. Lake was recalled, and he testified that the Food Wagon post was not the least desirable of the different rotations. The Pot Room, for example can be hot with poor air circulation. The evidence having concluded, the matter proceeded to argument~ Union Argument -,- Union counsel began his submissions by noting that the Union ,-- endorses employment equity, but that in the instant case the employer had, with the best of intentions, made an error in awarding the position to Mr. stirling. counsel made four submissions: First, that the employment equity program has been , , misapplied and misconstrued. Second, that the incumbent lacks·the qualifications and ability to perform the required duties of the position. Third, in the alternative, that the incumbent and the grievor are relatively equal in qualifications and ability and so the grievor's greater seniority should be given effect. And fourth, that the competition was flawed. , Turning first to the submission that the employment equity program ,.. ~ '. 14 has been misapplied and misconstrued, counsel noted that this program does not have the force of law. Counsel argued that a ~uty to accommodate only applies where an individual can be said to be qualified, and counsel referred to an extract from the Manual of Administration setting out the definition of "qualified person", and argued that when this definition was applied to the incumbent it was clear that he was not qualified for the Porter's position. That position requires the use of knives, and the grievor could not use knives. Accommodation, in counsel's view, is not a mandate to create new positions. Ra ther , it involves' an obligation to accommodate to an existing position. In counsel's view, the evidence established that a new position without some of the duties stated in the position specification had been created and this.went beyond any accommodation obligations. Turning to his second submission, counsel argued that the incumbent lacked the qualifications and ability to do the job in question. Referring to Article 4.3 of the Collective Agreement, counsel argued that the employer's primary obligation is to give consideration to qualifications and ability to perform a position. Just because Mr. stirling was better able to answer questions at the interview, and in that way receive a higher score, was not, in counsel's submission, a satisfactory method of determining qualifications and ability. The use of knives was, in this regard, part and parcel of the Porter's job, and since Mr. stirling could not use them, he did not have the qualifications and ability . 15 required for the position. Counsel argued that the Porter's position requires a rotation, and if a person cannot do all of the jobs on the rotation then he or she is not qualified for the position. Mr. stirling cannot do all of the jobs on the rotation, and it therefore follows that he is not qualified. In contrast, it was the uncontradicted evidence that the grievor was qualified to do all of the jobs and perform all of the rotations. Indeed, the grievor did the job on an acting basis for some months. Had primary consideration been given to qualifications and ability then, counsel submitted, the selection panel would have come to the inescapable conclusion that Mr. stirling did not have the qualifications and ability and that the . grievor was better qualified and able. Union counsel's third submission was that the grievor and the incumbent were relatively equal in qualifications and ability. Counsel made two submissions in this regard: first, that the evidence indicated, given Mr. stirling's handicap, that at the very least the grievor and the incumbent were relatively equal in skill and ability. The second submission was that a careful analysis of the scores indicated that there was not that much difference between the two. . In this regard, counsel referred the Board to the decision in Nixon 2418/87- (Fisher) . In this case, the Board was call ed upon to I f, . . t 16 determine whether or not the grievor was relatively equal in skill and ability to the incumbent. The Board found: . . . that the appropriate method of comparison is to compare the relative scores of the parties between themselves and not to compare it to an overall standard. The question as to whether the percentage difterential should be based on a percentage of a lower score or a higher score, however, is not being decided by the Board at this time (at 3). counsel argued that the Board in the instant case should follow suit, and also took the position that the attendance part of the score should be deleted in this consideration because attendance was not relevant to qualifications and ability. Counsel submitted that if the above-noted method were employed and attendance was removed there would only be an 8% difference between the two scores. If attendance was included and the above-noted method employed, union counsel calculated that there would only be an 8 or 9% difference between the two scores, and that this indicated that the grievor and the incumbent were relatively equal. Counsel drew the Boardts attention to Bullen 113/82 (Samuels) , where the Board found relati ve-'equal i tybetween two candidates. The Board in that case- then turned its attention to an interpretation of Article 4.3 of the Collective Agreement and the matter of seniority. The Board in Bullen observed: While seniority may not govern necessarily in all cases where qualifications and ability are relatively equal, seniority will govern unless some overriding consideration suggests some other decision. And this accords with the clear basic intention of the parties. The filling of a vacancy should be done ~n a merit basis. Where merit is equal, seniority can govern. 17 In Crossley 1481/88 (Fisher), the Board asked whether seniority was the governing factor once it was determined that the'candidates are relatively equal. The Board reviewed relevant cases and came to ,... the conclusion that "there can be factors other than seniority considered once relative equality has been determined, however, those other considerations would have to be 'overriding' ones in order to defeat the applïcation of seniority rights (at 4). II The Board in Crossley then went on to consider whether employment equity was a proper overriding consideration. As in the instant case, the parties did not dispute that employment equity was a goal shared by both the employer and the union. The union, however, took the position that employment equity cannot and should not be achieved by affecting seniority rights under Article 4.3. Various reasons for and against this position are set out in the award (at 4ff) . The Board found: The issue is not whether or not employment equity is a valid labour relations objective as the parties agree that 'it is. The issue is rather whether or not employment equity can be advanced through the process of allowing it to be considered as a consideration which override-so seniority. Clearly, if the inclusion of employment equity considerations at the second stage of the Article 4(3) process would not advance the overall objectives of employment equity, then it is not a proper factor to consider. If it could be proven, through empirical evidence, that the inclusion of employment equity as a second stage consideration advanced the objectives of employment equity, then this Board would be prepared to permit employment equity to be considered as a relevant factor at the second stage of the Article 4(3) process. However, even if this Board were to find that employment equity was a valid consideration at the second stage of the Article 4(3) process, the employer would still have &: 1 . . '18 to show, on a case by case basis, that given the particular facts of the case, the factor of employment equity should override seniority. .In assessing this balance, the Board would have to consider a number of factors, some which may be, , 1. the quantum of seniority difference between the candidates: . . .. . The onus of proving that the consideration of employment equity at the second stage of Article 4(3) process would in fact enhance the goals of employment equity is clearly upon the employer for they are seeking to add a new factor to the hiring equation that has never existed before. Furthermore, as . the Union has established a prima facie case of relative equality and greater seniority, it is for the employer to justifY the existence of an additional factor to be considered~ The employer led no real evidence on this issue, rather it simply argued the matter as a statement of faith.. . The employer has therefore failed to satisfy the necessary onus and thus it was improper for the employer in this case to consider employment equity once there was a finding that the qualifications and ability of the candidates were relatively equal. e" In the absence of any other consideration other than seniority, the grievor is clearly entitled to the position (at 6-7). Counsel argued that in the instant case the reasoning of the Board in Crossley should be applied. The. evidence established, in counsel's submission, that the candidates were relatively equal. The grievor had greater seniority and the employer had not adduced sufficient evidence to demonstrate that employment equity was an overriding consideration. Empirical evidence would be required to establish this, and there was no such evidence, counsel suggested, . in the instant case. In his final submission, union counsel argued that the competition :"1:. ~ ~ 19 was flawed because of the manner in which the selection panel approached Ms. Eckert. In counsel'_s view, it was the responsibility of the panel to make the decision, and the evidence indicated, counsel submitted, that in approaching Ms. Eckert the panel improperly fettered its discretion. Counsel argued that the grievor should be awarded the position with full retroactivity or, in the alternative, that the Board direct that the-competition be re-run. Employer Arqument Counsel for the employer argued that the proper result was reached in this case and that there was no basis on the evidence or in the Board's jurisprudence to interfere with that result., The evidence, counsel submitted, indicates that the incumbent can do the job and it was within' the jurisdiction of the employer, pursuant to section 18 of the Crown Employees Collective Bargainìng Act, to arrange the position in such a way so as to accommodate _the incumbent's disability. The Porter rotation system was not fixed by law or by the Collective Agreement, and the employer could adjust it, which is what took place in the instant case. In counsel's view, the use of a knife was not a core duty of the position, and this is illustrated by the fact that the employer was able to offer Mr. Stirling a Porter's position that did not require the use of a knife. Counsel also submitted that the assignment of Mr. stirling to the Food Wagon post did not indicate that the employer was of the view that this was the only job that Mr. stirling could ,. I I · '2 20 perform. In fact, counsel pointed out that the evidence established that Mr. stirling had performed other Porter jobs as well. Moreover, neither the job specification nor the posting required the use of knives. With respect to the evidence about the use of scores, counsel pointed out that even if the union's calculations were given effect they still demonstrated a significant difference between the grievor and the incumbent. Indeed, doing some calculations of her own, employer counsel noted an error in the initial calculation which reduced the incumbent's score. If this error was corrected, the difference between the incumbent and the grievor would be greater. Counsel also argued that attendance was a perfectly proper matter to take into account, and the competition was not won or lost on the Þasis of the questions that were posed. Personnel records were consulted, and at least one member of the panel was personally familiar with both candidates' work. With respect to the evidence about employment equity, counsel argued that the evidence met the test set out in Crossley. This was not a case where there was simply an expression of opinion about employment equity. Rather, the employer called evidence about the numbers of disabled persons working at the Hospital, and this evidence indicated that the Hospital was not yet meeting the employer's stated objectives. In this respect, counsel drew the Board's attention to Article A of the Collective Agreement.: , 21 A.1 There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, marital status, family status, or handicap, as defined in section 9(1) of the ontario Human Rights Code (OHRC) . A.2 It is recognized that in accordance :with section 13 of the OHRC, . the Employer's employment equity program shall not be considered a contravention of this article. Counsel argued that in assigning Mr. Stirling to the Food Wagon on a permanent basis the e~pJoyer had not, as the union suggested, created a new position. All that it had done was accommodate a '-, position to Mr. stirling after he won a competition in which the .. .- selection panel determined that he was the most qualified of the applicants. Counsel reviewed a number of provisions of the Ontario Human Rights Code, and also referred the Board to a number of authorities on point. In counsel's view, the employer has a legal obligation to accommodate a qualified individual up to the point of hardship. The accommodation in the instant case was nowhere near that point. In fact, it was easily achieved, -for Mr. stirling could perform the essential duties of the Porter position. Counsel distinguished the Crossley decision re.lied upon by the Union and noted that this decision expressly contemplates that employment equity may be an overriding consideration where qualifications and ability are considered equal. In Crossley, moreover, there was no evidence about the equity program. In the instant case, two witnesses testified with respect to it, and the results of a survey indicating that the Hospital had not achieved ¡. . " ,t 22 the employer's employment equity objectives had been introduced . into evidence. Empirical evidence had, counsel submitted, been brought before the Board. Counsel argued that if the Board found relative equality, then employment equity should override seniority I in the instant case because there was only one week's difference between the two applicants. Counsel argued that there was no evidence of any flaw in the competition, and submitted that there was nothing wrong with the panel, having scored Mr. stirling highest but having concerns about his disability, consulting a Human Resources professional with respect to its legal and employment equity obligations. It was the uncontradicted evidence of Ms. Eckert that the panel made its own decision to award the position to Mr. Stirling, and this decision was made after its prior determination that Mr. stirling was the most qualified. Mr. Stirling had, counsel noted, received the i higher score. \ In counsel's view, the union had not met its onus in this case to demonstrate a violation of the Collective Agreement. A selection panel determined that one of two applicants was most qualified. That applicant had a disability. The selection panel, after consulting with Human Resources, reviewed the position and determined that it could offer the position to the applicant by changing the rotation. To do so would advance the employer's employment equity program. And in the result, Mr. Stirling got the I . 23 job. This, counsel., submitted, did not violate the Collective Agreement. Incumbent's Arqument Mr. Simpson made some submissions on behalf· of Mr. stirling. In counsel's submission, Mr. stirling was found by the selection panel to be the most qualified, and he was awarded the job on that basis. It was not necessary, therefore, to consider seniority or other considerations. If the Board found relative equality, then Mr. Simpson adopted the employer's arguments with respect to the consideration of the equity program and the assignment to Mr. Stirling of a job where the use of knives was not required. Union Reply -- In reply, union counsel submitted that the employer does not have .. the right to tailor a job to a person, and that nothing in the Crown Employees Collective Bargaining Act gave _ it that right. Counsel reiterated the union's view that the use of knives is a core duty of the Porter position, and by creating a position where knives were not required, the~mployer was in fact creating a new job. In counsel's submission, accommodation does not involve placing unqualified persons in positions, and the ontario Human Rights Code provisions are intended to ensure that qualified persons are not precluded from employment because of physical .to: challenges. In the instant case, Mr. stirling was not qualified for the job because the job requires the use of knifes~ ~. . " -.I , 24 Decision Having carefully considered the evidence, authorities and arguments of the parties, we have come to the conclusion that this grievance must be dismissed. In general, it is the jurisprudence of this Board that a party contesting the outcome of a job competition bears the burden of proving there were flaws in the competition and that these flaws went to the result. In the instant case, we are satisfied that the competition was properly run, that Mr. stirling was properly identified as the superior applicant and that after this result was reached, the employer properly considered what accommodations were necessary to award him a porter position. The employer then made those accommodations and awarded him the posted position. In our view, very simply, the selection panel determined that two candidates were not equal in qualifications and ability, and the grieyance can be disposed on this basis alone. .Even if we were persuaded, which we are not, that there was only an 8 or 9% difference between the two candidates, as opposed to a 10%+ difference, we would have found on the evidence before us that the qualifications and ability of both candidates are not relatively equal. Our conclusion in this regard is buttressed by the fact that notwithstanding his disability, Mr. stirling still scored significantly higher in the competition than did the grievor. Moreover, the grievor had the advantage, during the job competition, of actually having occupied the contested position on . , 25 an acting basis. The grievor is undoubtedly qualified for the position, but that is not the issue before us. On the evidence, Mr. stirling scored higher than the grievor, so much more so that it is not necessary to consider the grievor's marginally greater seniority or any other considerations in dismissing the grievance. There is no evidence before the Board of any flaws 'in the running of the competition. The grievor testified, for example, that he . was not surprised by any of the questions. Union counßel made some arguments with respect to the relevance of attendance in scoring the applicants, but we are of the view that the employer is entitled to consider attendance in its assessments of the qualifications and ability of the applicants to perform the required duties. We note, in this regard, that the jqb posting indicates that the successful candidate will have the "demonstrated ability to maintain an acceptable level of attendance." Moreover, the weight given to attendance is not disproportionate to the weight given to ·the more directly relevant qualifications. A few additional observations are in order. Had we found that the grievor and the incuxnbent were relatively equal, we would still have dismissed the grievance. In the absence of any other considerations seniority should govern. That is not the instant case, for the grievor's . disability raises an additional ,. '. t . 26 consideration which the employer was entitled to take into account. Both the union and the employer are committed to employment equity. Recently a provision reflecting this commitment was negotiated in the Collective Agreement. The jurisprudence of this Board, as set out in Cross¡ev. is that employment equity considerations may be taken into account. Crossley stands for the proposition that where these considerations are overriding they may be given effect. It is not sufficient, as Crossley notes, to simply mouth an I affirmation of these considerations. In the instant case, the I Board heard and received empirical evidênge, which was unchallenged .- I by the union, demonstrating that the percentage of employees'with j , disabilities at this Hospital is below the stated objective of the employer. This empirical evidence meets the standard set out in ¡ Crossley. It is also worthwhile to point out that in Crossley the Board determined that the quantum of seniority of the applicants was one of a number of issues to be considered in determining whether the employment equity objectives should be given precedence' over seniority. In the instant case, there· is only one week IS difference in seniority between the two applicants. This is not, I I therefore, a case of a long-serving employee losing a"competition , to a junior employee as a result of the implementation of employment equity. A few final points. We reject without exception the union's submission that Mr. stirling is not qualified for the Porter's . , . . ,~ , . 27 position. It is true enough that at one time this position rotated among a number of stations. That does not' mean that this rotation is fixed for all time. In the instant case, Mr. stirling won the competition. Despite his disability he scored higher in the competition. Those scoring him knew that he could not use knives. He still got the higher overall score. The selection panel then inquired, as we find it was entitled to do, about the employer1s employment equity program and obligations. Having learned that an ~ . 1'-" . ,._'f>',. obligation exists in law, not to mention the existènce of a formal employment equity policy within this Ministry, the panel considered how the job might be adjusted to take into account Mr. Stirling1s disability. No new job was created. Insteaq, what the employer did was carve out one position from the rotation where knives were not required. This Porter's position was awarded to Mr. Stirling : and he is obviously qualified to perform it. Any suggestions to the contrary are without foundation in the evidence before us. In the result, the grievance is dismissed. Dated at ottawa thís.("+~ay of 'J -'I í 7 1991- i ! i I . ¡ oJ ,Vfilliam Kaplan ~Vice-Chairperson / ", . ~ --ç'>~--z--r:-<,~~~-<--" ' 1. Thómson Member / /c /..".- / 1 / /. / (- . -, ":"~Ý' _.: ~..: l.--. X. (" Stapleton / Member ,.