Loading...
HomeMy WebLinkAbout1992-0299.Hudson.94-08-16  \.. . '~ ONTARIO EMPLOYES DE LA COURONNE ~ - ~ CROWN EMPLOYEES DE L'ONTARIO -~,, GRIEVANCE C,OMMISSION DE / / SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, 'TOF~ONTO, ONTARIO. M5G lZ8 TELEPHONE/T~L~PHONE; (476) 326-~388 180; RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), M5G 1Z8 FACSIMILE/TC~LECOPIE : (4~6; 326-7396 299/92 IN THE MATTER OF AN ARBITRATION '' Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hudson) Grievor - and - The Crown in Right of Ontario (Ministry .of the Solicitor General) Employer BEFORE: S. Tacon Vice-Chairperson J. Laniel Member A. Merritt Member FOR THE A. Lokan UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Costen EMPLOYER Counsel Legal services Branch Management Board Secretariat HEARING January 28, 1994 May 25 & 26, 1994 .DECISION In this grievance, the union ,alleges- that Tracy Hudson, the grievor, was improperly_ denied an appointment to a full-time classified pQsition as radio operator 2 or the renewal of her series of full-time -unclassified contracts in the Chatham Communications Centre°' That is, the four full-time classified positions as radio operator 2 ("RO2"') which came vacant required that the sUccessful candidates be bilingual. Hudson is a unilingual ang!ophone. In the union's view~ those hirings were discriminatory and contrary to article A.i.1 of the collective agreement and/or the Ontario Human Rights Code (the "Code")and/or the Canadian Charter of Rights and Freedoms (the "Charter") in that the bilingualism requirement had an adverse impact on the grievor, as a unilingual anglophone, because of her ancestry. As well, the union asserted that article 3.15.1 of the'collective agreement was violated in that there was an obligation on the Ministry to establish-permanent classified positions where the same work. is performed for at l'east two consecutive years and the Ministry determines there is a continuing need. The employer asserted that~the requirement of bilingualism for the four positions was not discriminatory under the collective agreement, the~ Code or the Charter. In the alternative, the requirement was bona fide in order to'implement the French Language Services Act ("FLSA"). Further, 'the employer contested the jurisdiction of' the arbitration board to create another full-time position in excess of complement. In this regard, it should be noted that the union was'not challenging the constitutiona-lity of the FLSA. Nor was the union asserting that~the FLSA had improperly designated the areas in SchedUle A to that Act; the union agreed that the geographic areas listed in Schedule A had francophone populations, r/ At the commencement of the hearing, the Board raised the issue of notice to the four incumbents. The parties agreed'to ad~journ in order to provide notice since the relief requested had the potential to displace one of the four. In fact, although no~tice was given, none of the four incumbents appeared at the hearing. The parties agreed,/ and the Board concurred, that it was appropriate in the circumstances to first hear and determine whether there was justification for the bilingualism qualification in the poSting. If the Board concluded no such justification existed, the Board would reconvene the hearing to consider the "merits" of the grievance, that is, whether the grievor would have been successful in the competition for any of the four 'positiOns but for the bilingualism condition. One other matter should be mentioned at this juncture. The grievance was framed as~ stated above. However, prior to the commencement of .the oral testimony, counsel for the union raised another issue with respect to the asserted failure of the employer to hire the grievor, ostensibly for health reasons, for a different position in the Peterborough Communications 'Unit in the same time period. This issue is factually unconnected w~h-the~bilingualism requirement in the Chatham postings. Counsel for the employer had not'had an opportunity to investigate the allegations'. Following' .submissions, the BOard ruled orally that it was preferable not to permit evidence' to be adduced on that issue at this p~int in the proceedings. 'The allegations were to be particularized and employer counsel Was to be given an opportunity t6 investigate. the parties were unable to resolve that matter, the issue Would be heard following, the determination of the bilingualism requirement question. This decision does not purport to set out the reasons, given orally in Point form, for that ruling. Two witnesses were called: the grievor on-' her own behalf and Kenneth Sharp, ~sUpervisor of the Chatham .Communications. Unit, ~on behalf of the employer. Ther~ was little dispute on the facts. The Board next recounts those factual findings.considered relevant and which reflect its assessment of the evidence, both oral and documentary. The Chatham Communications Unit (,CCU") services District 1, an area which includes the counties of Lambton, Kent and Essex. Prior to August 1989, the OPP operated a simple radio system province- wide to dispatch officers. In District 1, radio operators (dispatchers) were deployed in Essex, Forest and Petrolia d'etachments and headquarters in-Chatham. However, it was decided that dispatch services would be consolidated by district across the~ province. In District t~ that meant moving from four locati°hs to one, Chatham. At the CCU, there are nineteen full,time dispatchers, classified as radio operator 2. Other relevant staff at the Centre are four sergeants and one staff sergeant. The CCU is Physically housed in the same building as the District Headquarters.- Centralizing dispatch services occurred in the province in stages. Radio operators 2 ("RO2's"~) were redeployed to the cental locations and vacancies offered to other RO2's, classified and unclassified, in the district and then province. That serial centralization combined with a 1984 hiring freeze with respect .to RO2 hirings in anticipation of the new system resulted in ten vacancies for RO2's by the time the CCU came on line. Of the nine ~exiSting RO2's, two were bilingual (N. LaChapelle and M. Benoit). The CCU received permission to post for the ten RO2 vacancies. By this point., the FLSA was in force. There was no dispute that the CCU services areas which are designated under that statute as possessing francophone populations, including, for example, the Town of Belle River. The Ministry determined that seven Of the RO2 positions were to be bilingual in the total complement of nineteen. Ads were placed seeking bilingual and unilingual RO2's. Applications were screened. Those who met the requirements were short-listed and given a PERFEX test. Bilingual candidates were assessed as to their fluency prior to the PERFEX test. Thos~ performing at an advanced'oral level proceeded to the next stage. The twenty'minute PERFEX test is akin to a video game. It measures one's ability to follow instructions and perform tasks, reasoning ability, manUal dexterity and ability to deal with more than one task at a time. Those candidates successful on the PERFEX test were invited to interviews chaired by a committee. ~Each applicant was asked identical quest.ions from a list prepared by Human Resources. The interview scores were ·totalled. Finally, .the committee, ranked the candidates. The grievor'was one of the candidates in this hiring process. She satisfied the advertised qualifications'as a unilingual applicant, was~tested on PERFEX and given an interview. A ranked llst of approximately seventeen appliCants was forwarded to Human Resources. Positions were offered to the top ten.. One of those declined the offer of .employment and that Position was offered~to the eleventh ranked. Because of the number of R02's who were needed in the single round of'hiring, permission was given to hire unilingual candidates in. excess of the designated numbers, although .the Centre was encouraged to fill as many of the designated bilingual positions as possible. In fact, of those hired, only one (L. Castanier) was bilingual, bringing the total complement t° three bilingual RO2's of nineteen. The new dispatchers were phased in; each.was given a three week training sessi°n.~ Their start dates varied between June and July \ 4, 1989. Since the old system had to be operated up until the implementation date of the new system, the process occasioned some disruption, primarily because of the needed training sessions. Sharp, supervisor of the CCU, testified that training was only available at certain times and 'locations and the department, in efSect', had to'work arouhd that schedule. As well,'Sharp brought one sergeant on stream early to assist in the transition; the other serqeants were being trained and scheduled to start in July. The grievor ~had been ranked twelfth in the list of candidates and was the "next in line" had another of the successful applicants refused the employment offer. Recruiting was completed in June 1989. The grievor testified that it was her understanding that she would get~ the first opening thereafter. It should be noted that the grievor previously had worked as an RO2 for the OPP in 1986 on a three month contract but, for health reasons, interrrupted that employment until she again applied in 1989. Almost immediately after recruiting ended, Sharp, who was at a four week training session in Burlington, learned that one of the existing RO2's (P. smith) had resigned. Sharp contacted Human Resources seeking to return to the competition, list and offer the twelfth candidate that position. He was informed that the competition had closed and that the new vacancy had to be posted in the usual manner. As that process would take approximately six months to complete, Sharp requested permission to hire the grievor, as the twelfth candidate, in an unclassified position for that period of time so that the department would not be shortstaffed. · That was done and the grievor commenced what would become a series of unclassified positions. With respect to the vacancy, itself, Sharp was~ advised by Human Resources that the position had to be.posted as bilingual given 'that there ~ were only three bilingual RO2's' on staff of the designated complement of seven.. As noted, during the consolidation process 'already .adverted to, because of the number of new hires, the Centre was permitted to hire unilingual candidates in greate~ .than designated complement. Indeed, only one'of the ten hires was bilingual. However, 6nce that initial recruiting process was completed, Human Resources determined that further vacancies had-to be posted .bilingual if the existing bilingual complement was understaffed. Sharp did not make the initial decision to set the number of bilingual positions at seven; that was communicated to him by Human Resources in the late 1980's. Sharp did testify as to .the appropriateness of that number in view of the operational requirements of the CCU. The Centre operates twenty-four hours a day, seven days a week. RO2's work twelve hour shifts, .generally from-7:00 a.m. to-7:00 p.m. and vice versa. In order to cover the peak period from 12:00 noon until 7:00 p.m., an RO2 would work from \ noon until midnight every fourth set of nights. On each shift, four RO2's are scheduled plus a sergeant. The three other.RO2's would be designated as "floaters" to cover for.absences. There was only one sergeant (of five) designated as a "floater". As well, there was one staff sergeant, for the entire communications area, Sharp, who Worked steady days, and a superintendent responsible for the entire district. Because of the shift schedule, four bilingua! RO2's would be the absolute minimum needed to cover the shifts. That would not accommodate illness, vacation, seniority.entitlement in scheduling vacation, training or scheduled leaves (e.g. maternity). Further, it is possible for a maximum of three RO2's to be absent at the same time on scheduled leave. Given all these factors, Sharp testified~ that seven was an apprQpriate number to provide reasonable assurance that the necessary~bilingual coverage would be available. Sharp added that separate schedu'~ing lists were not kept for the bilingual RO2's. Although he tried to avoid scheduling two bilingual RO2's on the same shift, it was posSible that would happen on occasion if, for example, a ~loater who Was bilingual, filled in on a shift where another bilingual RO2 was already working. Sharp estimated that 40 t° 50% of the shifts betwen July 1989 and january 1992 were covered by-bilingual RO2's. Sharp noted that he had not reCeived any Complaints regarding lack .of service in French. HOwever, in Sharp's view, francophones were entitled to service in that language if they so chose, although most had not, as 'yet, exercised that right notwithstanding the enactment of' the FLSA. ~. ~There was evidence with respect to the number, of designated bilingual positions in related departmentS or areas. One OPP sergeant position is designated bilingual but that designation applies to the District Headquarters, not the Communications Centre, although both are housed in the same building. There are no clerical staff in the Centre; of the four clericals in the' District Headquarters, one is designated bil'ingual. Sharp testified that he had been involved in the process of providing 'FrenCh language services for_many, years. Detachments having significant French populations were identified and a number of positions were designated as bilingual in those detachments, including officers ~nd civilian staff. Factors such as contingencies, resource sharing and the service level needed were considered in determining the appropriate level of services in French. Sharp did not know if continuous bilingual'shift coverage was provided by ~he officers in the OPP detachments nor the number of' OPP~ officer positions designated bilingual in the relevant detaChments. The grievor coUld not be precise with regard to the number of OPP officers on duty per shift in 'the district but thought that the figure of sixty was high. Sharp also indicated the various areas of the Chatham catchment area which had francophone populations. .As this was not in dispute, the detailed listing need not be reproduced herein. Before proceeding further, a brief description of the duties of the RO2's is appropriate~ The dispatchers are the primary contact with the public, receiving incoming calls and ~aking the necessary ~eferrals to.officers. The RO2 obtains the pertinent facts frOm ) the-caller and enters that ~nto the computer which generates an "occurrence". The'"occurence report" would be handled by the R02 responsible for dispatching to the area where the incident arose. ~The information would be relayed to the oPP officer in the specific area and detachment for investigation. The supervisor would also field incoming calls on breaks or if the Centre was extremely busy. Otherwise, the supervisor would assist the RO2's with operational or legal matters and act as a resource for the public. The RO2 was described by Sharp as one of the most demanding of civilian positions with the OPP, requiring technical skills on the computer driven dispatch system and extensive additional knowledge gained on the job and through experience in dispatching. For example, there 'are policy and procedures and communication codes to master. In Sharp's view, one "never got the same call twice,, and an RO2 had to be "fast on one's feet". There was some evidence with respect to the ability of RO2~s to "patch" through calls directly from the public to an officer. Under the'old radio system, it was felt that calls could be patched through to a French sPeaker if needed. However, SharP testified that, once the new equipment was installed, for technical.reasons, that was not a viDble option on the 800 lines. The 800 lines are -the ~main source of calls for service from the public. It. was standard department practice not to.transfer or patch through 800 ' calls, although a caller could telephone the department again on a regular phone line and be patched~through. The grievor testified that, in her view,,calls could be patched through. However, the grievor stated that'she had never actually done soandacknowledged that management did not suDport such action. On this point, the testimony of Sharp is preferred. 'In any event, Sharp stated that it was not the intention of adispatch centre, to regularly connect callers directly to OPP officers in the field, even apart from the language issue. Sharp was questioned with ~espect to alternatives.' to providing continuous bilingual·coverage through the R02's.~..For example, it was Suggested that French· language services Could be provided through bilinguaI clerical staff, bilingual· opP officers and telephone linkS with larger desighated centres (such as London, Toronto). In esSence, Sharp felt.that those were not feasible in operational~terms on a regular basis. While· some Calls were not urgent and time would be'aVailable to get the bilingua~ resource person, others were'more urgent and.did not provide the luxury of canvassing for bilinguaI support. The grievor testified that, during her period of employment from July 1989'to JanUary 1992, she was aware of only three calls which- required service in French. None were received·by her personally. On one occasion, the~call was handled by a bilingual Opp officer who fbrtuitouSly happened to ·be ~available in the CommuniCations 'Centre. The grievor did not khow if a bilingual OPP officer was dispatched to handle the, call. The grievor did not know the details of the other two calls, except that both were handled by bilingual RO2's whom the grievor overheard taking the· call in French. '~ Sharp had several informal and brief conversations With the grievor during 'her employment with the ·Centre regarding. the bilingual postings. The grievor men~i0ned a number of times that she did not like the fact that the ads'for the vacancies required bilingual ability. Sharp explained the quota of seven bilingual positions that had been in effectsince She commenced her first unclaSsified / position and that the department had to post the ~vacancies· as bilingual in Order ko ·reach the designated complement. The grievor, and all other unilingual applicants who responded tb the ads, received a letter indicating that their applications·would be kept on file until .a unlingual·position was open. It is not necessary to outline precisely the-various unclassified contracts with the grieVor. Each was for-·a de'fined period of time 10 and related to short-staffing in the department.for a variety of reasons. For example, one of ~the bilingual RO2's (J. Dupuis) resigned, reducing that complement to two. In the roughly six months needed to fill that vacancy, also posted as bilingual, the 'grievor worked as an unclassified R02o -It should be noted that the return of a new hire, L. Castanier, .from training brought the' numbers of bilingual RO2's back up to three in short order. A unilingual R02, G. Preston, took a lateral transfer to Belleville. In the interim between the transfer and the rePlacement hire, the grievor remained at work as an unclassified RO2.' Various RO2's ~were ~absent on sick leave (D. Thebarge, L. Bell, P. Varga). Another R02 Was temporarily.~reassigned ~0 training within the district. What is noteworthy is that these various events reSulted in the grievor's Continuous employment in a series of unclassified R02 pOsitions from July 1989 to January 1992. · In each instance'when a temporary replacement was needed, Sharp testified that the ~grievor was available for .work and had experience in the job. The grievor, in fact, was the only unclassified R02 employed during the period'.from July 1989 to January 1992. The Centre was permitted to underfill 'a poSition with a Uniilngual unclassified RO2 even where the formal, posting required a bilingual candidate. During the PeriOd that the grievor was employed as an unclassified RO2, 'she had no discipline or perf°rmance problems. Indeed, her performance evaluation was positive and she received a merit increase. As well, ~she received letters ~f commendation for her performance in twO specific incidents while On duty. While four vacancies for classified RO2's arose during the Period in which the grievor held unclassified RO2 positions, she only applied for one. With respect to the first position, posted in July 1989, the grievor testified that she did~not apply because she unaerstood that the applicant had to be fluently bilingual. The grievor did apply for the second posting, notwithstanding the bilingual requirement, and received the letter issued to all unilingual candidates. The gr~evor testified that she had learned the "basics" in French at school. Between the first and second of thei vacancies, she enrolled in a French course (FrenCh 101) at St. Clair College; however, the course was cancelled because of low enrollment. The grievor also testified that she informed Sharp that she was prepared to take French classes but was told that she had to be proficient in 'French at the time she applied for a vacancy. The grievor testified ~that she did not attempt to enrol in other courses because, in her view, there were so few calls in French that she felt Whatever French she learned would not be used and would be lost. She did state that, in her view, she was capable of acquiring the language. The grievor did not apply for the two subsequent ~acancies. It is useful to summarize the four vacancies which were posted and the resulting, hires. As a result of the posting in July 1989, L. Castanier, a bilingual applicant, was hired to replace the unilingual P. Smith who resigned, as mentioned above. J. Dupuis, a bilingual RO2, resigned and was replaced by D. Thebarge, also bilingual. G. Preston, a Unilingual RO2, accepted a lateral transfe~ and J. Lachance, a bilingual applicant, was hired. Finally, D. Thebarge herself resigned and was replaced by another bilingual RO2, C. Belanger. The last hire, Belanger, occurred near the end of the grievor's final contract. None of the four had prior RO2/~PP experience or qualifications,~ although all met the advertised qualifications, performed appropriately on the PERFEX test and oral interview and were rated at the advanced oral level with respect to their bilingual language skills. Once hired, all attended the three week training course. Thus, at the point the grievor's final unclassified position ended and was not renewed in January 1992, the department_had-only five 12 of ~the seven bilingual positions filled (Belanger, Castanier, Benoit, Lachance, LaChapel-le). Sharp also testified that, in the period from J~ly 1989 to January 1992, there was a union steward at the ChathamCentre, Benoit, with whom he worked in seeking to implement a compressed work week, as was permitted in the cOllective agreement. When Benoit resigned as union steward, the post was apparently n6t filled. The grievor testife~ that she was not aware she had a right to grieve until a union meeting in February 1992 Where she spoke to the local president. At the time, there was no union steward the Chatham Centre. Prior to that meeting, the grievor had contacted a number of people about her situatiOn; including the Ombudsperson, local MPP's and the Ontario Human Rights Commission. ~he thorough and able arguments.of 'counsel are next summarized. Counsel for~the union acknowledged that the instant grievance did not involve bad faith or an attack upon the FLSA or bilingualism. CounSel argued that the failure to appoint the grieVor to a full- Time RO2 position constituted adverse impact discrimination. Counsel conceded that the collective agreement and the COde did not expressly mention "language" as a prohibited groun~ but did include "ancestry" and, as demonstrated in statistical material tendered in evidence, there was a strong co-relatiOn between "ancestry" and "language". ~hat is, th9~ incidence of bilingualism was significantly related to French, rather than English, as the.moth'er tong.ue. Counsel contended that statistical evidence was sufficient to establish adverse impact~discrimination, that the bilingualism requirement had a disproportionate effe6t on those whose mother tongue was English rather.than French. Thus, while the FLSA was bona fide legislation, the Board could ~examine whether the designation of seven Was reasonable in the circumstances or whether other steps were ava~iable to minimize the discriminatory impact. Jurisprudence dealing with adverse impact~ discrimination was canvassed in support of counsel's submissions. It was also argued that the number of designated ~bilingual positions was not reasonably related to the demand'for French language services. Nor was there evidence as to_ the origin rof~ the number or the per centage of francophones in the population serviced by the CCU. Counsel argued that he was entitled to cross-examine witnesses with respect to those matters. Counsel stressed that, as the grievor was permitted to fill-in during the posting process and as bilingual coverage had only approximated 50%'of shifts during the relevant time and without complaints, the number of positions designated bilingual was unreasonable. Alternative means of delivering services in French were sugqested to minimize the adverse' impact discrimination on the grievor,' including patching calls to OPP officers, utilizing other bilingual staff on site or relaying the calls~to other locations (e.g., Toronto; London) where there were bilingual R02's available. Even if tWenty-four hour bilingual coverage in'the CCU was marginally Preferable,~ ~hat had to be measured against the adverse impact on the grievor.. In summary, counsel argued that the BOard, even at the behest of an unclassified RO2, 'shoUld ~onclude that the grievor had s~'ffered adverse impact discrimination contraryto the collective agreement, the gode and/or the Charter. cases 'cited included: Cousens v. Canadian Nurses Association, (1980) C.H.H.R., VOio ~2, D. 78, D365 ~(Ratushny); Cochrane Temiskaming -Resource Centre (unreported, April 10, 19891) (MarszewSki); OPSEU v crown in'Right of Ontario (Ministry' of Government services) (GSB. #1391/90, 1931/90, October 7, 1991) (Kaplan).(referred to as "Kimmel/Leaf"); OPSEU v. Crown in Right of Ontario (Ministry of Correctional Services) (GSB #16/93, 199/93, 1162/93, March 23, 1994) (Gray) (referred to as "Mers~n"); OPSEU v. Crown in Right of Ontario (MiniStry of Government Services) (GSB #3027/92, December 15, 1993) (Dissanayake) (referred to as "McIntosh"); OPSEU v. Crown in ~ight ~of-Ontario (Ministry ~of the Solicitor General ) (GSB #386/91, -December 4, 1992 ) (Gorsky) (referred .to as. "Booth"); Re Ontario Human Rights Commission and Simpson-Sears Ltd. (1985), 23 D.L.R. (4th) 321 (S.C.C.); Griggs v. Duke Power Co. (1971) 401 U.S. 424. Counsel also ref~erred to the Ontario Human Rights Code, R.S.O. 1990, c. H~19. Counsel for the employer reviewed the evidence, emphasizing the front-line nature of the RO2 position And the urgency which mhy be associated with the calls, in support of his submission that the bilingualism requirement was reasonable in the circumstances. Counsel reviewed the policy embodied in-the ELSA, as expressed in the preamble and implemented through s.5, in particul.ar. Counsel disagreed with the suggestion that the failure to mee~ the designated number of seven and utilizing the grievor on unclassified Contracts while filling vacancies indicated the number "seven" was inappropriate or that the Ministry'was not serious about that ratio of bilingual to unilingual RO2's. With respect to the legal issues, counsel submitted ~that the Code and the collective agreement were not breached because bilingualism was a "language skill,' and neither the Code nor the agreement protected language skills. Moreover, that skill was required in order for the Ministry to comply with the FLSA and that skill was not "inherent" but could be acquired, as ,the grievor agreed she was capable of doing, unlike the characteristics protected in the Code and the collective agreement. Indeed, counsel argued that the statistical data demonstrated that the skill could be acquired; it was simply that those whose mother tongue was French had done so more frequently. It was submitted that the union had not satisfied the onus of establishing a prima facie case of discrimination and, consequently, no-breach of the collective agreement. In the alternative, counsel argued that the FLSA fell within the "special program" exemption in the Code and the designati0n~ of seven bilingual poSitions to reasonably ensure coverage was supportive of the implementation of' the FLSA. With respect to.the question of ,,adverse[rimpact discrimination'', counsei~contended that, if the identifiable "grOu~" of which the grievor 'was a member was unilingual anglophones,.their needs had already been accommodate'd in that fourteen of the nineteen positions Were held by unilingual incumbents and, at worst, twelve positionsldid not have a bilingual requirement. It was alsoasserted that the Posting obligation is contained in article 4-of the collective agreement to which employees in unclassified positions do not have access, in contrast to the non-discrimination provisiOns in article A.I.1. The test~in article 4, counsel argued, was whether the requirement was reasonably relatedto the position', not the more stringent test as to whether the requirement was necessary to perform the duties. In assessing whether bilingualism was reasonably related to .the RO2 duties, counsel submitted that the FLSA provided~the context for that assessment and the question should be answered in the affirmative. In summary, counsel asked that the Board find that the bilingualism requiremen~ in the postings did not violate the collective agreement or the Code and should be upheld. Cases referred to included: OPSEU v. Crown in Right of Ontario (Ministry of Transportation & Communications) (GSB #1243/87, July 28, 1989) (Ratushny) (referred to as "MacKenzie"); Edwin Roberts and Her Majesty She Oueen in Right of Ontario and the Ministry of Health (Board of Inquiry, unreported, April 14, 1989) (Backhouse) (referred to as "Roberts"); Ontario Human Rights 'Commission v. Borough of Etobicoke (1982), 132 D.L.R. (3d) 14 (S.C.C.); Broadley v~ .Steel Co. of Canada Inc.. (1992) C.H.R.R., Vol, 15, D. 35, D408 (Hovius).. In reply, union Counsel submitted that the essence of adverse impact discrimination is that it results from an otherwise neutral requirement. It Was argued that, if the link between the skill (bilingualism) and ancestry was established, it was necessary to analyze-whether th~ skill constituted a reasonable requirement for the.position. Counsel contended that th~ FLSA and the RO2 hirings could not be justified under the "special program" pr°vision~ ~of 16 the code. With respect to the duty to accommodate, counsel argued that the issue was whether the number of designated bilingual positions was reasonable in the circumstances given the impact on a disfavoured group (unilingual anglophones). It was acknowledged that it'would not be possible to fault the employer if the number so designated was four but that seven was excessive and yet that still could not provide an absolute guarantee of coverage. Counsel referred to Booth, supra, with respect to 'the appropriate test under the Charter and, in. that regard, noted the low level of demand for French' language services in the instant case. It' is appropriate at this juncture to address a number of matters that were not in dispute or t~ose which the Board does not r~gard it asnecessary or useful to deal with at any length. As noted earlier, the union is not challenging bilingualism or the constitutionality of the FLSA. Nor is it asserted that the statute improperly designated the areas in Schedule A ~to .that Act; the union agreed that the geographic areas listed in Schedule A had francophone populations. The union is-not asserting that the employer acted in bad'faith in determining that the'four vacancies (and seven designated positions in total) should be posted as bilingual. As well, the~employer did not challenge the grievance on timeliness grounds, that is, that the matter shoUld be dismissed because of the delay in filing the grievance. Given the Board's conclusions, as outlined below, the Board need not deal with the assertion by employer counsel that the Board lacked the remedial jurisdiction to order'the creation of an RO2 position in excess of complement to accommodate the grievor. Employer counsel argued, in the alternative, that ~the FLSA fell within the "special program" exemption in the Code and the designation of seven RO2 pOsitions as bilingual was supportive of the legislative aims. The~Board has Some cohcerns as to whether the FLSA could be characterized as a "speciaI program" under the 17 Code but need not determine that issue herein given its disposition of the grievance on other grounds.. The Board has not considered the Charter separately from the submissions with respect to the Cod~, in view of the way in Which the matter was argued. There was no assertion that the Charter ~protected.rights otherwise not protected by the~Code with respect to the instant grievance.- The grievor testified that it was her understanding that she would receive the next available RO2 position. The Board accepts that the grievor regarded herself as "next in line" given her ranking as twelfth of the seventeen candidates in the initial round of hiring. However, the Board is not persuaded, nor was it argued, that' the grievor's view could reasonably be characterized as giving rise to an estoppel Or other such basis for challenging the s~bsequent postings and hirings. The grievor only applied for the second of the four-postings. As well, employer counsel asserted that the posting obligation is contained -in article 4 of the collective agreement to which emplOyees in~unclassifiedPositions~do not have access, in contrast to the non-disCrimination Provisions in article A.i.1. The Board has Serious concerns with respect to both-of these matters but does not regard it as necessary to dealwith these further~. The'Board is prepared, to' asSume, without deciding, that neither of theSe matters constitutes an impediment to'dealing~with the argument of union cOunsel that the bilingualiSm requirement was discriminatory under the collectiVe agreement and/or the Cod~. The Board first deals with the argument by union counsel'that the bilingualism requirement in the posting',constituted adverse impact discrimination. Thi~ argument is predicated upon the asSerted statistical co-relation between'mother tongue and 'bil%ngualism, that the incidence of bilingualism was significantly related to 18 French, rather than English, as the mother tongue.. Hence, it was argued that the language requirement really addressed the anceStry of the applicants and had a disproportionate effect on those whose mother tongUe Was English rather than French. "Ancestry" is one of the prohibited grounds included in the Code and the collective agreement. It is not necessary'to set out herein the relevant sections of the Cod~ or article A.i.1 of the collective agreement. The Board has carefully reviewed the jurisprudence cited regarding' adverse impact discrimination. The Board accepts the definition of adverse impact discrimination articulated in SimpSon-Sears, supra, as follows: "[AdverSe impact discrimination] ~arises where an employer for genuine business reasons adopts a rule or standard-Which is on its face neutral, and which will apply equally to all employees, but whiCh haS a discriminatory effect upon a prohibited ground on one employee or group of employees-tin that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force." (at p. 332) The Board is not persuaded that there is a sufficient nexus between bilingualism and ancestry to warrant characterization of the bilingualism requirement in the posting as adverse impact discrimination on the basis of ancestry. Rather, the Board regards bilingualism as a skill which may be, and is, acquired by persons of varied ancestry. The statistical data do. reveal a co-relation between mother tongue and bilingualism but-that evidence falls far short of what would be needed to establish a compelling connection between the acquisition of the second official language and ancestry. Indeed, the grievor herself testified that she considered herself capable of learning French. The Board finds further support for this conclusion in the Cousens decision, supra.~ In that case, the impugnedposting required the successful candidate be bilingual and-"preferably a francophone". The Board therein recognized that to be francophone did not necessarily imply French descent but did connote French speakingin the sense of having French as one's "langue maternale" or "mother tongue". The Board determined that "mother .tongue" was closely enough associated to ancestry that, to give preference in employment to a "francophone'' could constitute a contravention o~ the Code on the basis of ancestry (at D/365), although the Board acknowledged that that proposition was not entirely without difficulty since mother-tongue is not always related to ancestry. The Board found that a significant factor in the ~termination of C0uS~ns was the fact that he was not francophone and upheld the complain~. In its analysis, the Board distinguished between - fluency and.mother tongue. The following passage is apposite': "As Mr. Cousens stated in his testimony: 'I can become bilingual but I could not become a Francophone.' In other words, a potential employee can acquire fluency in a language but cannot change his mother tonque." i(at D/368) In the instant grievance, the issue is not one of "mother tongue" but merely that of language skill. As is recognized in cousens, "a potential employee can acquire fluency in a language". The posting' required candidates be bilingual, specifically that~they be rated at the advanced oral level With respect to their bilingual language skills. The C~de and the collective agreement do not -include "language" in the list of prohibited grounds and, in the Board's view, the posting requirement cannot reasonably be characterized as a matter of "ancestry". On this basis, then,-the union's argument of adverse impact discrimination fails. In the alternative, even if bilingualism can be so characterized, the Board is satis~fied that the requirement is reasonable and bona fide in the circumstances within the exception in s. 11 of the Cod~. In the context of the exercise of management rights to establish qualifications for the RO2 posi%ion, the Board is satisifed that the requirement is reasonably related to the job in question. ~AlthOugh~ these issues overlap somewhat, each will be dealt With separately, commencing ~with the collective, agreement aspeCt. ~ As mentioned earlier, ~._this analySis is predicated on the assumption, without deciding, that the .grievor may challenge the qualifications for a posted position notwithstanding the fact that she held unclassified positions as an-RO2. The Board accepts the test articulated in the jurisprudence that the qualifiCation must be "reasonably related" to the position in question. The standard is less stringent than ,necessary'' but the relationship must be "more than tenuous or speculative": MacKenzie, supra; Booth, supra and the cases Cited therein. -Both MacKenzie, supra, and Booth, supra, involved challenges to a bilingualismrequirement. In both cases, the Board looked to a number of factors, such as, the per centage of 'francophones in the catchment area and potential'demand for services in French, the nature of the position ~in3olved, including the extent of contact with the public,~ and the availability of~reasonable alternative means of Providing~services in French. In-Booth~ supra, the Board concluded that the clerical nature of the position did not invOlve significant public ~ontact nor require bilingual capacity to perform thoSe Clerical functions, there was no urgency to the response, the level 9f demand was low and there Were reasOnable and practical alternatives to provide French language services th'rough ready'access to other bilingua1 employees' In those circumstances, the grievance was upheld. In MacKenzie,. supra, the Board found~that the~position of DriVer Examiner sUpervisor did involve, extenSive public contact in a catchment area with asignificant francophone poPulation and there were no reasonable alternative means of providing French language services in the office in question. In that case, the grievance was dismisSed. In that context, the Board must assess the instant grievance. In .passing, the. Board notes ~that the the decision in Co~hrane 21 Temiskaming, supra, is not considered helpful in that the arbitrator found that bilihgualism had not been listed as a requirement, merely an asset, and thecollective agreement provided that sen'iority would govern Where candidates were "relatively equal". The analysis suggests~that the resul~t would have been otherwise had the posting required bilingualism and/or the agreement upheld seniority only where the candidates were "equal". The circumstances in Cochrane Temiskaming are not analogous. Union counsel acknowledged that the CCU catchment area included francophone populations and had appropriately been designated.in Schedule A to the FLSA. The challenge on this issue focuSed on the designation of seven bilingual positions (as opposed to a lesser number) and. on alternative means of providing services in French. The Board ~did not hear evidence from Human Resources as to the origin of the designation ~of the number seven. In some circumstances, the absence of such evidence, which would include an' assessment of the proportion of francophones in the relevant geographic area, might well be fatal. While there was no evidence of complaints with respect to the level of services, provided in French and th'e current demand level is apparently low, the Board accepts the proposition that the appropriate focus is whether French language services would be utilized significantiy if' available (see, MacKenzie, supra). In the Board's view, that proposition is particularly relevant where, as here, the contact involves a request for police assistance. In the instant case,'as noted, there was no dispute-that the CCU catchment area included franc°phones and had appropriately been designated in Schedule A to the ~. The Board is satisfied that the potential demand for French language services is sufficient and the particular per c~ntage of francophones in the'population not critical in.view of the nature of the R02 position. What is critical, is the evidence of Sharp which pr6Vided an operational rationale for the 'number .seven. That evidenCe, which ~the Board accepts, need not be repeated in detail. What is established is that, for the CCU to operate twenty-four hours per pay, seven ~days a ~week,~ sevenl designated bilingual RO2,s would provide reasonable~assurance that the shifts Could be covered, allowing for anticipated'absences for · Vacations, illness, leave,.letc. The current~number of four or fiVe bilingual RO2's enabled Sharp'to provide French.ianguage services only on approximately 40% to 50% of the shifts betw.een jUly 1989. and January 1992. ! Union counSel conceded that the employer could not be faulted if fOur Positions were designated bilingual .but asserted that seven was "overkill''. In the circumstances, the'Board is Satisfied that- the number se~en is not excessive. While seven would' no,t absolUtely~ guarantee such coverage - only a full' Complements'of nineteen bilingual RO2's~would do so, seven designated positions would Provide-a reasonable prospect of one bilingUal R02 being available on each shift to provide French language services. cOUnsel for the-union also argued that the' fact that only five of the!current RO2's are bilingual and the fact that the grievo~,was hired as an unclassified R02 during the posting and hiring process Supported the assertion that seven was an excessive number. With respect, the Board disagrees. The employer simply does not have the luxUry of not providing continuous RO2 coverage for the CCU; calls.for, police assistanCe must be answered. If the CCU was underfilled .with respect to the number of designated bilingual positions, the employer acted respOnsibly in ~filling those positions'with a temporary, unclassified Position while the posting and hiring process - which the evidence' indicated took approximately six months - was underway. The~grievor Was the only unclassified R02 hired during the relevant period. Each temporary contract~ was for a-specified period and related to specific turnover or other ·absences of· full-time, RO2's (e.g., maternity leave, illness). In that regard, the Board4 does not agree that there was any violation of article 3..15.1; the Ministry did pOst 23 and fill permanent classified positions to maintain the Complement at nineteen. This argument was raised initially by union counsel but not pursued. The Board simply notes its view on this point, in passing. It is also important to emphasize the Board's conclusion that the bilingualism requirement is reasonably related to°the nature of the RO2 position. Unlike the clerical position in Booth, supra, the RO2 is the front-line contact between the public and the 0PP. The dispatchers receive incoming ~calls, obtain the necessary information from the caller and make the appropriate referral to OPP officers for investigation. The contact between the dispatcher- and the public is the essence of the job and the nature oS the contact may well be urgent and require an immediate response.. Union counsel also suggested possible alternative means of delivering services in FrenCh, including patching calls to OPP officers, utilizing other bilingual staff on site or relaying the calls -to other locations where there were bilingual RO2's available. In Booth, supra, the Board was satisfied that there were other such reasonable means of providing French language services; in MacKenzie, supra, the Board Was not so persuaded. The focus of the analysis in both cases was the exigencies of the job in question. In the instant case, the Board is satisfied that the circumstances more Closely resemble those in MacKenzie, supra. Indeed, the urgency which may be associated with calls for police assistance militates against a finding that other alternatives are reasonable. It is accurate to note that many calls, are not urgent and there would be an opportunity to canvass other staff to respond in French. In that regard, it should be stressed that only one of four clerical staff is bilingual, as is one of the staff sergeants, and those staff are not associated with the CCU but~ part of District Headquarters, which is housed in th~ same building. There 24 was evidence that a proportion of OPP officers are bilingual. That alternative Would require determining which bilingual offiCers were on duty and available to take the call. Moreover, the Board accepts that patching through such calls is not'a'viable option for technical reasons relating to the dispatch system. All these .options, however, would require a delay in responding to calls where there may well be serious risk to iife and property. Relaying Calls to other centres would likewise involve a delay which is not appropriate. The fact that, in th~ past and currently on some shifts, the public has been forced to communicate in English is not an answer. The FLSA provided rights to French language services. The requirement of bilingualism is reasonablyrelated to that objective and.to the natUre of the RO2 position. The number seven for the bilingual complement is not excessive and is rationally related to coverage by bilingual RO2's in operational terms. Thertest is not whether it is theoretically possible to provide alternative bilingual coverage, but whether such alternatives are reasonable in the circumstances. The Board is satisfied t~at there are no such reasonable alternative means to provide French language services. The Board next turns to consideration of the provisions of s. 11 of the Code. In doing so, the Board emphasizes that there has~been a finding that the bilingualism requirement does not constitute adverse impact discrimination and this analysis is in the alternative. The following~passage from Ontario HUman Rights Commission v. Borough of Etobicoke, supra, deals with ~the criteria for determining whether a requirement which otherwise would constitute adverse impact discrimination is a bona fide occupational qualification: "To be a bona fi~e occupational qualification and requirement a limitation, such as a mandatory retirement at a'fixed age, must be imposed honestly,, in good faith, and in the sincerely held belief that such limitation'is imposed in the interests of th~ adequate performance of the Work involved With all reasonable dispatch, safety and economy, and not for ulterior or extraneous, reasons aimed at obj'ectives which could defeat'the purpose of the Code addition it must be related in an' objective sense to the performance of the employment concerned, in that it is reasonably necessary to assure the efficient and economical performance of the job without endangering the employee, his fellow employees and the general public." (at p. 19-20) The Board considers' that the instant circumstances meet that test and need not repeat its earlier analysis. The standard under the collective agreement is "reasonably related" and that just enunciated is "reasonably necessary". Even ~if the two tests are somewhat different, the Board is satisfied that its analysis outlined above sustains a finding that the~bilingualism requirement is reasonably necessary to the efficient and economical performance of ~the RO2 job. - section 11(2) requires that a finding of a bona'fide occupational qualification also depends upon a conclusion that ~the duty to accommodate has been-'satisfied· In the instant case, the Board so satisfied~ while union counsel has focused on the fact that seven of the RO2 positions are designated as bilingual, it must be remembered that the majority, twelve of nineteen, are not so designated. That is an important consideration in dealing with the dUty to accommodate what union counsel described as "unilingual anglophones". The Board' does not regard it as appropriate to ignore the fact that twelve of the nineteen positions are available to ~unilingual anglophones-and narrowly apply the duty to accommodate with respect to, the remaining seven bilingual positions. In any event, the Board is not satisfied that such accommodation is possible without undue hardship within the meaning of the Code. Again, the Board need not reiterate its findings with respect to the lack of other reasonable and p~actical alternatives, especially in light of the urgency which may be required for a 26 response to a request for police assistance. ~ In that regard, as well', the Board notes that the employer did not enforce the requirement that seven of the~positi0ns be~bilingual when faced with the mass- hiring on consolidation of the CCUo Rather, the employer acted reasonably in achieving what compliance with the biiingual designations was possible in the circumstances. Further, the employer did not seek subsequentlyto terminate full- time unilingual RO2's in excess of twelve. Instead, the employer waited for vacancies to occur in order t0 achieve what the Board has determined to be a valid and reasonable level of seven bilingual RO2's. The process by which the employer chose to proceed resulted in the opportunity for the grievor to hold a series of unclassified R02 positions. There are no compelling grounds, Under the collective agreement or the Code, which would warrant the striking down the the bilingualism requirement in the foUr postings at issue. The nUmber of bilingual RO2's in the relevant period did not exceed, and is currently at five, rather than seven. The parties' argument proceeded on the basis of a challehge to the designation of seven positions as bilingual. The Board sees no utility in dealing with this grievance in a fashion- which would necessitate further litigation if additional vacancies arose 'and the postings were designated bilingual (until the requisite complement of seven is reached and maintained). Thus, for the foregoinq reasons, the Board finds that the designation of seven R02 positions as bilingual does not violate the collective-agreement or constitute adverse impact discrimination within the meaning of the Code. In the alternative, the requirement constitutes a bona fide occupational qualification under the Code. The grievance alleging that the grievor was improperly denied an appointment to a full- time, classified~R02 position at the CCU is denied. Nor does the Board find any contravention of the collective agreement in the failUre of the employer to renew or otherwise continue the 27 grievor's series of unclassified contracts, thelast of which ended in January 1992. That ieaves'the allegation raised for the first time at the hearing with respect to an asserted failure of the employer to hire the grievor~ ostensibly for health reasons, for a.different position in the Peterborough Communications Unit. If the parties have been unable to resolve that matter, the union is to request that the hearing be reconvened to deal with that allegation. DATED this 16th day of August, !994. S~.an Tacon, Vice-Chairperson J.C. Laniel, Union~Member A'. Merritt, Employer Member