HomeMy WebLinkAboutMiller 17-02-131728/D
IN THE MATTER OF AN ARBITRATION
BETWEEN
ININEW PATIENT SERVICES
(“the Employer” / “Ininew”)
- AND -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(“the Union”)
CONCERNING THE INDIVIDUAL GRIEVANCE of JOSH MILLER (“the
Grievor”) Grievance No. 2015-0442-0009
Christopher Albertyn - Sole Arbitrator
APPEARANCES
For the Union:
Lori Davis, Regional Grievance Officer
Josh Miller, Grievor
For the Employer:
Clarence Willms, Director, Human Resources & Payroll
Midge Rouse, Director, Ininew Patient Services
Hearing held in KINGSTON on February 2, 2017.
Award issued on February 13, 2017.
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AWARD
1. The grievance concerns the Employer’s decision to appoint a person other
than the Grievor to a vacancy. The Grievor claims that he ought to have been
selected.
2. The Grievor is a part-time Residence Worker. A full-time position was
posted in June 2015. He applied. He was not interviewed, despite knowing how to
perform the duties. The Employer did not give the Grievor an interview because
he lacked the language proficiency requirement of the posting. He needed to be
fluent in Mushkegowuk, a Cree language.
3. The parties provide an Agreed Statement of Facts. It reads:
1. Josh Miller was hired as a Regular Part-time Security/Housekeeper at
the Geaganano Residence on October 16, 2013. Mr. Miller is a
bargaining unit member of OPSEU Local 442 (Ininew Patient
Services).
2. The job posting for which Mr. Miller was hired into included the
following minimum requirement: “sensitivity to deal effectively and
respectfully with the patients and families for the Geaganano
Residence” and the following desirable qualification: “ability to speak
Mushkegowuk Cree.”
3. During the negotiations for the term of the collective agreement from
April 1, 2014 – March 31, 2016, the Hospital communicated to the
Union that it would make every effort to recruit Cree speaking
individuals to any vacancies that occurred even if [that] resulted in a
delay in filling a vacancy.
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4. In that round of bargaining, the parties agreed to rename the
“Security/Housekeeper Worker” as “Residence Worker” and the
“Geaganano Worker” position was eliminated and renamed “Residence
Worker with Cree Premium.” In order to be eligible for the Cree
premium, the employee must be able to provide medical translation
services in Cree.
5. The “Residence Worker” and the “Residence Worker with Cree
Premium” were listed as separate classifications on Schedule ‘A’ of the
collective agreement that expired on March 31, 2016.
6. On January 19, 2015, the Hospital posted a Full-time Residence Worker
(Comp #2015-008) with the following minimum requirement:
“Fluency in Mushkegowuk Cree dialects for staff seeking the Cree
language bonus.” The position was posted as open and the deadline for
the posting was posted until filled, which was done by the Hospital to
ensure there was a sufficient Cree speaking candidate pool.
7. The successful candidate for Comp #2015-008 was a Cree speaker and
did not start the position until June 22, 2015.
8. Mr. Miller applied for the competition but he was not considered or
interviewed for the position as there were Cree speaking candidates.
Mr. Miller did not grieve the competition.
9. On June 26, 2015, the Hospital posted another Full-time Residence
Worker (Comp #2015-100) with the same minimum requirements as
Comp #2015-008. The position was posted as open deadline for the
posting was identical to that of Comp #2015-008. (Appendix “A” as
attached)
10. The job posting language under minimum requirements read as
follows: fluency in Mushkegowuk Cree dialects for staff seeking Cree
language. The Grievor’s interpretation of this was that the position
would pay an additional bonus for this skill set as per Wage grid in
Collective Agreement. ( Attached as Appendix “B”)
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11. As there was a sufficient Cree speaking candidate pool for the
competition, the position was filled on September 9, 2015.
12. Mr. Miller again applied for the competition but he was not considered
or interviewed for the position. Mr. Miller then filed a grievance
regarding the competition on August 31, 2015. After the grievance was
filed by Mr. Miller the parties agreed to a change of language in the
Collective Agreement during the bargaining process.
13. During the negotiations for the term of the collective agreement from
April 1, 2016 – March 31, 2019, the parties agreed to the following:
a. Amend Article 13.01:
b. “In order to ensure that employees are given the opportunity to apply
for vacancies occurring in the bargaining unit, the Hospital agrees to
post all full-time and regular part-time vacancies covered by this
agreement for a period of seven (7) consecutive calendar days. For
a vacancy in a position where the Cree language is a minimum
requirement and no internal qualified candidate is identified, the
Hospital will fill the vacancy on a temporary basis until an
external qualified candidate is hired. The Hospital and the Union
will discuss how the temporary position will be filled. The
successful applicant will be selected in accordance with Article
12.01…..”
c. Delete the following job classifications:
i. Residence Worker
ii. Residence Worker with Cree Premium
d. Add the following job classifications:
i. Residence Worker I
ii. Residence Worker II
iii. Residence Worker III
e. The Hospital clarified in bargaining that a minimum requirement for
a Residence Worker II job posting would be fluency in
Mushkegowuk Cree.
14. On April 14 2016 the parties meet with Christopher Albertyn in an
effort to try to mediate a settlement between the parties as they are
obligated to do so. As a solution two offers for settlement were
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presented to the Grievor and both were rejected. The grievance was
then scheduled to proceed on to Arbitration for February 2, 2017.
15. The Grievor believes that he is qualified to do the position of Full-time
Residence Worker. He has been doing the duties of this position on a
part time basis since October 2013, without any negative job related
incidents. When he was first hired he was never informed that he would
need to be fluent in Mushkegowuk Cree.
16. The Grievor is a conscientious employee and has no record of discipline
on his file.
17. The Grievor feels that the employer has violated 12.01, 12.01(a), and
12.01(b):
Article 12 of the Collective Agreement- Promotion and Transfers
12.01(a) In cases of promotions, transfers (other than appointments
to position outside the scope of the bargaining unit), the
following factors shall be considered:
(a) skill, ability and qualifications
(b) seniority
Where factors in (a) are relatively equal, seniority shall
govern, providing the employee in question has the
qualifications to perform the work available. Such
judgement shall be made in a fair, impartial and consistent
manner.
18. The Grievor feels that because he was not considered for the
competition that he is being discriminated against and not treated fairly
and that the employer is in violation of Article job Posting 13.01 (a)
and 13.02 (b) :
13.01 (a) In order to ensure that employees are given the opportunity
to apply for vacancies occurring in the bargaining unit, the
Hospital agrees to post all full-time and regular part-time
vacancies covered by this agreement for a period of seven
(7) consecutive calendar days. The successful applicant will
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be selected in accordance with article 12.01.
Such notice shall contain the nature of the position and the
current hours of work as well as the salary range.
13.02 (b) All qualifications for job postings will be reasonable and, if
increased, the union will be notified.
The Griever feels that the employer violated 13.02 (b) in such that the Union
was never notified of the requirement for Mushkegowuk Cree. Previously the
full-time incumbent did not have this requirement. The Griever also maintains
that he was never informed when originally hired that this would be a
requirement for a full time position as a residence worker.
4. The Grievor explains that he feels disappointed that, as a part-time non-
Cree-speaking employee, he has a lesser chance of being appointed to a full-time
position. His disappointment stems from his not being told of this likely limitation
when he was hired in 2013. The Grievor feels discriminated against because, he
says, he does part-time what is required of the full-time position that he was not
appointed to.
5. The Employer responds by giving the historical background to the
requirement of Cree-speaking for the position. The program started in 1984, as a
result of a proposal written by Midge Rouse, the current Director of Ininew. Over
many years from the 1970s many First Nations people from the James Bay region
were referred to the Hotel Dieu Hospital (“the Hospital”), Kingston for medical
assessment or treatment. Ms. Rouse recognized that many who came were not
English-speaking. They found the hospital surroundings unfamiliar, they had
difficulty communicating their medical needs, and they had difficulty
understanding the medical information that was being conveyed to them by those
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treating them at the Hospital. There was concern that they be able to make
informed medical decisions. Ms. Rouse proposed that a service be provided to
give transportation, accommodation, translation support, and patient advocacy to
Cree-speakers coming from the James Bay area to the Hospital. Her proposal was
accepted and funded on a trial basis by Health Canada.
6. After the initial trial funding, and enthusiastic support from Cree
community leaders, the program was adopted by Health Canada, and has been
supported by Health Canada since. For many years the program was known as the
Weenebayko Patient Services, before assuming its current name, Ininew Patient
Services.
7. The program includes services from when the Hospital’s patients arrive in
Kingston until the time they leave. There are three charter flights per week from
the north. The person needing medical information is often accompanied by a
family member. The flights are met by an Ininew staff member, a Cree speaker.
Those met are driven to the Ininew’s residence facility, the Geaganano Residence,
where they are housed during their stay in Kingston. If the residence is full,
Ininew arranges for hotel accommodation. Ininew has staff who are Cree-
speaking, and others (like the Grievor), who do their best to make the residents
feel at home while they are at the Geaganano Residence. The staff take the
resident to their medical appointments at the Hospital and they help to interpret
the medical information between the Cree-speaking patient and the Hospital
medical staff. When the treatment or testing is complete, the patient and their
family are accompanied by Ininew staff back to their flight, back to the north.
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8. The Employer has particularly sought to hire Cree-speakers for the
Geaganano Residence, in order to make the visit by patients as comfortable as
possible. Those who interpret medical information with Hospital staff and the
Cree patients must be Cree-speaking so that the patients can make informed
decisions regarding their treatment.
9. From the inception of Ininew, management has sought to recruit Cree-
speaking staff. This has proved to be difficult, particularly for part-time and
casual positions. Cree-speakers from the north are unwilling to move to Kingston
on the prospect of only a part-time job. Consequently, about 10 years ago, the
Employer began to hire non-Cree speakers into part-time and casual positions.
The Grievor is such an employee. At times even full-time positions could not be
filled by Cree-speakers after an effort was made to recruit in the James Bay area,
and the Employer was obliged to hire a non-Cree speaker into the position.
However, the aim has always been to have as many Cree-speaking staff as
possible, particularly in full-time positions.
10. In the past few years the Employer has been successful in recruiting Cree-
speakers into full-time vacancies.
11. The Employer is subject to posting requirements under the collective
agreement, referred to in the Agreed Statement of Facts. Posting occurs for 7
consecutive calendar days. A Cree-speaker from the James Bay area is unlikely to
apply within this small time frame. Consequently, the Employer has negotiated an
amendment to this provision which permits it to temporarily fill a vacancy
requiring the Cree language until an external qualified candidate is hired
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(assuming there is no Cree-speaking qualified internal candidate). This gives the
Employer the opportunity to recruit up north to find a suitable candidate.
12. The Grievor explains that he did not grieve the January 2015 posting
because he was working almost full-time hours at the time. By June 2015, when
the next posting occurred, the Grievor was working less hours.
13. The posting on June 26, 2015 was the one grieved by the Grievor. Again
there was an open deadline, with the same language minimum requirement as in
the January 19, 2015 posting.
14. The Employer explains the need for the language requirement. Not only is
there benefit in having Cree-speakers working as Residence Workers, but the
Cree-speaking Residence Workers are the individuals from whom the future
medical translators will be drawn. Being a Residence Worker is a training ground
for the more complex work of medical translations between the residents and the
Hospital. They are the individuals who will, in time, take over the positions that
provide front line medical services to Cree-speakers from the north.
15. From the strict language of the posting, the Grievor understandably
thought that that he was qualified to apply for the vacancy and be given an
interview so long as he did not seek to obtain the “Cree language bonus”.
However, what the Employer intended by the posting for the minimum language
requirement was that the successful candidate must be Cree-speaking. That was
one of the minimum requirements, not, as the posting stated, only if the candidate
wanted to be paid the Cree language bonus.
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16. As mentioned in the Agreed Statement of Facts, there were sufficient
Cree-speaking candidates and the position was filled by one of them on
September 9, 2015. The Grievor was not interviewed because he is not Cree-
speaking.
17. The issue in this case includes whether the language requirement was bona
fide.
18. The real intention of the Employer in the job posting was revealed in the
qualification, that “this competition will remain open until a suitable candidate is
hired”. The Employer was looking for a Cree-speaker in conformity with its
general objective to ensure adequate staffing by Cree-speaking individuals.
19. As mentioned in the Agreed Statement of Facts, the collective agreement,
at Article 13.02(b), has the following provision:
All qualifications for job postings will be reasonable and, if increased, the Union
will be notified.
20. In this case, on the posting that the Grievor has grieved, the Union was
notified by the Employer of the increase to the qualification, of the fact that the
Employer wanted a Cree-speaker to fill the position, despite the way in which the
reference to the language requirement was expressed in the posting. The Union
knew of the fact that the Employer was going to continue to look for a Cree-
speaker, hence the posting reference to the position remaining open until a
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suitable candidate had been found, rather than the usual 7 days.
21. Therefore, although the strict language of the posting did not have the
language requirement, the Union understood that requirement to exist, as the
Employer intended it.
22. The Grievor’s position is that he performs all of the duties of a Residence
Worker, save for speaking Cree. He says the need to speak Cree is very seldom
required and, when the need arises, there are always Cree-speaking staff available.
23. An employer has the entitlement to determine what qualifications are
necessary for a particular position. That entitlement must be exercised reasonably.
The requirements and qualifications must accurately reflect what is needed of the
position, of the functions the incumbent will perform. In this case, Ininew wishes
to make the visitors to Kingston from the James Bay area feel as comfortable and
as supported as possible. Ininew recognizes that the visitors are making a trip to a
strange place for purposes that are likely to cause some anxiety, namely, medical
examination and treatment. Ininew wants to make the experience as smooth and
uncomplicated as possible. Having qualified staff who speak the language of the
visitors adds to the comfort and support the visitors will feel. In this context, the
language requirement for certain full-time Residence Worker positions is
reasonable. The ratio of Cree-speaking to non-Cree speaking is also a matter that
reasonably falls to the Employer to determine.
24. While I recognize that the Grievor is a conscientious employee who
continues to perform his work most ably as a part-time Residence Worker, the
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Employer’s actual language requirement for the June 2015 posting was bona fide
and reasonable, given the overall objective of Ininew to ensure an adequate
number of full-time Cree-speaking staff. Despite the slightly inaccurate reference
to the language requirement in the posting, in the context of the Union’s
understanding of the Employer’s declared needs, I find that the posting complied
with the collective agreement and that it contained a reasonable and bona fide
language requirement.
25. Having regard to these considerations, I find that the Employer did not
breach the collective agreement when it failed to interview the Grievor and, as a
result, failed to consider him or appoint him to the vacancy.
26. In the circumstances, the grievance is denied.
DATED at TORONTO on February 13, 2017.
_____________________
Christopher J. Albertyn
Arbitrator