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HomeMy WebLinkAbout1993-1625.Smith.95-02-08 ~ _:~ I ,~~,~t.- ~...)-' - .....' ~ ONTARIO EMPLOYES DE LA COURONNE CROWN ;MPLOYEES DE L'ONTARIO .. GRIEVANCE COMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST,.sUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DuNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPIE (416) 326-1396 GSB# 1625/93 OPSEU# 93E597 IN THE MATTER OF AN ARBITRATION Under THE CRO~ EMPLOYEES COLLECTIVE BARGAINING ACT Before ~HE GRIEVANCE SETTLEMENT BOARD BETWEEN ,) OPSEU (Smith) Grievor - and - The Crown in Right of Ontario (Ministry of NOFthern Dev~lopment & Mines) Employer BEFORE: , W Kaplan Vice-Chairperson \ I J Thomson Member F Collict M~mber FOR THE M Ma~zuca UNION Counsel Koskie & Minsky Barristers & Solicitors , FOR THE S Patterson EMPLOYER Legal Counsel Management Board Secretariat HEARING May 24, 1994 November 25, 1994 December 21, 1994 I - - .- ~ . ,~ \'~. .~l V 2 Introduction By a grievance dated August 26/ 1993, Robert Smith, an EconomIst 4 then employed by the Ministry of Northern Development and Mines, grieves a violation of Article 24 9 1 (d) of the .Collective Agreement. In brief, the union and the grievor take the position that Mr Smith, upon receiving notIce of surplus, should been allowed to exercise bumping rights to secure an Environmental Officer 5 position of Rehabilitation Inspector located in Sudbury held by Mr Pat Bolger The employer takes the position that the grievor was not qualified for that position, and that the terms of Article 24 9 1 Cd) of the collective agreement have not been breached. I The case proceeded to a hearing in Toronto at which time evidence and argument were heard Mr Bolger attended two of the three days of hearing, and was accorded full participation rights. On the second day of hearing he was called as a witness by the employer It is useful to set out the relevant portions of Article 24 It provides DISPLACEMENT \ Effective January 1, 1992, an employee who has completed his probationary period and who is subject to lay-off as a surplus employee, shall have the right to displace an employee, who shall be identified. by the Employer in the following manner and sequence I Cd) Notwithstanding the above, in the event that there are one or more employees in one or more classes in another class series in which the surplus employee has served during his current length of contmuous service who have .Iess seniority than the surplus employee, the surplus employee will displace the employee wIth the least seniority in the class with the highest salary . --------rfi - ~'i .~ 3 maximum (no greater than the current salary maximum of the surplus employee's class) and provided that the surplus employee has greater seniority than the displaced employee hereunder, provided that such employee is in the same ministry and within a 'forty (40) kilometre radius of the headquarters of the surplus employee and provided that the surplus employee i$ qualified to perform the work of such employee (emphasis ours) The main issue in this case, simply put, is whether thegrievor, the more senior employee, was qualified to perform the Rehabilitation Inspector's i ;' position held by Mr Bolger However, and as will be indicated below, the grievor, between 1980 and 1984, held a position in what later became the Environmental Officer class series when he was employed as an Environmental Technician While the parties were agreed that the I Environmental Technician series I~ter became the Environmental Officer series, they were not in a9reement (1) that holding a position in the former necessarily qualified an individual, a decade later, to hold a higher rated position in the latter or (2) that this work history entitled an individual to the benefits of this provision of the collective agreement. It is appropriate to set out in the introduction to this award some information about the Rehabilitation Inspector position The purpose of this position, as set out in the position specification, is '''to carry out compliance reviews/non-compliance investigations and related enforcement duties of mine rehabilitation plans designated for health/safety, environmental protection and reclamation of mined out land To co-ordinate the Closure Plan Process" The skills and qualifications of the job, as are relevant for the purposes -of this case, are set out in both the position specification and job posting j'Comprehensive knowledge of mine .~.- .,-{"', ',!J. - 4 re ha bilitation leg islation/theory / practices Knowledge of related environmental legislation, the mining/sequence/operations Knowledge " of/proven experience in/ environmental IOvestigatic:>n techniques, due process of law, rules of evidence and court procedures" The Union's Case Evidence of Robert Smith Mr Smith testified on his own behalf In 1980, the grievor obtained the posi~ion of 'Environmental Technician, and held that position until September 1984 when he j0ined the Ministry of Northern Development and Mines as an Economist. Unfortunately:, in May 1993, the grievor was informed that he would be deClared surplus On July 16, 1993, he was advised by Beverley Webb, the Ministry's Redeployment Coordinator, that following a "thorough review of the positions within the Ministry, Within 40 kil6metres, it has been determined that you are not eligible to displace another employee." The grievor continued in his efforts to secure employment, and in that regard, he provided Ms Webb with information about his activities as an Environmental Technician. An "Employee Portfolio" was completed and submitted This lengthy document sets out an employee's background and experience The "Personal Information" part is filled out by Human Resources, the remainder of the document, detailing the individual's employment history, is filled out by the employee On December " 3, 1993, the grievor's surplus declaration came into effect. He has subsequently obtained short-term employment with the Ministry of the Environment in Toronto The grievor testified in some detail about his background and experience He holds a B E S from the University of Waterloo, and told the Board that he - -- 'l; ,.~ --~ 5 i specialized in environmental matters, particularly technical skills such as air photo interpretation Before joining the Ontano Public Service, the grievor worked- for a number of conservation authorities. As an '. Environmental Technician between 1980 and 1984, the grievor testified that he was required to monitor activities of public utilities and industrial clients, including pulp mills and mining operations, in order to ensure compliance under the Environmental Protection Act, the Environmental Assessment Act, the Ontario Water Resources Act and the Pesticides Act. The grievor told the Board that in discharging these responsibilities he was required to conduct routine inspections, including acquiring water samples as appropriate The job entailed considerable travel and, for a large part of his time, the grievor was self-directed A copy of the grievor's position specification, from this period, was introduced into evidence, and the grievor testified that he performed all of the duties and responsibilities listed therein The grievor emphasized a number of his duties and responsibilities as an Environmental Technician which he believes are relevant to the Rehabilitation Inspector's position. The grievor told the Board that he pursued abatement projects with clients by "advising clients orally and in writing of compliance problems and recommending monitoring programs and abatement measures on an individual basis in consultation/cooperation with senior staff in -sensitive or contentious circumstances" He was also responsible for "collecting evidence and supporting information relating to alleged violations of legislation and interpretation thereof with appropriate recommendations for legal action to immediate supervisor" His duties involved "preparing and/or assisting in the preparation of all documentation and information ---- \ t.~i -~r'i 6 1 required for use by upper management and Legal Services Branch to pursue legal action" as well as "Interviewing witnesses, takmg sworn statements, \ serving subpoenas and orders, and providing investigative and technical ..." evidence in court and before quasi-judicial bodies (OMB, Environmental Assessment Board, Environmental Hearing Board, etc.) " And he also was required to prepar~ "technical memoranda, letters, minutes of meetings and routine inspection reports for issuance by the individual" The grievor received some training in order to perform these various tasksr but, for a number of reasons, he was never actually called upon to perform some of them For example, the grievor never actually took any witnesses statements, he did, however, take careful notes. The fact that the grievor never laid any charges was merely indicative of the Ministry's policy of ensuring compliance informally rather than throl:lgh prosecutions The grievor routinely prepared inspection reports After leaving his Environmental Technician position, the grievor joined the Ministry of Northern Development and Mines as an Economist 4 with the position of Community Development Economist. The grievor described this job to the Board In that capacity, the grievor was involved m delivering a variety of programs, particularly involving municipalities, and he testified about his familiarity with various statutes This job did not directly involve the grievor with mines, although he did have some oversight responsibilities for a business opportunity study respecting industrial minerals Turning to the position sought, the grievor thoroughly reviewed the pOSition specification for the Rehabilitation Inspector Job and testified that he was, --- i.~, l~:: 7 by and large, qualified for the position In order-to perform the job at the working level the following skills and knowledge, as .indlcated at the outset ~ of this award, are required "Thorough knowledge of Mining legislation, theory and practices related to mine rehabilitation including the mining sequence/ operations and related legisiation eg Environmental Protection I Act, and Occupational Health and Saf~ty Act/ Extensive knowledge of, and proven experience in safety environmental investigation techniques, due process of law, rules of evidence and court procedures. " In the grievor's view, he had the skills and knowledge necessary to do the job He testified that he was slightly aware of the Mining Act, and since January 1994, he has been involved in some correspondence to the Minister relating toa request under the Environmental AssesSment Act respecting the decommissioning of a mine and tailing area The grievor, however, never enforced the Mining Act when he was an Environmental Technician The grievor also testified that he was qualified in terms of the theory and practice of mine rehabilitation as a result of his work as an Environmental Technician, and that on one occasion, in that capacity, he was involved with the extraction and processing of tailings. In that instance, the grievor attended at a mine site in order to obtain information to be forwarded to the approvals branch of the Ministry of the Environment. .On another occasion, when an Environmental Technician, the grievor inspected a mme site as part of the Ministry's consideration of a mme reopening request. And on two other occasions, the gnevor inspected some tailings areas m order to investigate and report on the degree of compliance. The grievor was involved in a number of site inspections of new minin~ operations On approximately six occasions the grievor attended at new mining operations , 'lii (~ 8 in order to det,ermine if there were any major probl~ms in the mining operation or tailings disposal The grievor also conducted at least one investigation with respect to a spill on a mine property On that occasion the grievor was satisfied with the remedial steps taken by the mine owner and so there was no need to initiate a prosecution Altogether, the grievor probably investigated six or eight spills in his capacity as an Environmental Technician: All of these experiences, and others, the gnevor testified, gave him a sound grasp of mining theory and the mining sequence Indeed, the grievor testified that in enforcing the Environmental Protection Act he was I involved in all phases of the mining sequences, from development of the mine site through to the closure of a mine and the removal of buildings The grievor was, he said, extensively familiar with the Environmental Protection Act, and his familiarity with that statute continued after he became an economist with the Ministry of Northern Development and Mines. The grievor testified that he was also familiar with the Occupational Health and Safety Act, although in response to a question from the panel he could not identify the term "IRS i. Nevertheless, he was, for two years, co-chair of the Ministry of Northern Development and Mines' occupational health and safety committee, and in that capacity he was involved with building inspections and complaints about workplace hazards The grievor was also familiar with the rules of evidence and law, and this familiarity was obtained as the result of education seminars taken while an Environment TechniCIan He testified that he took at least two sessIons dealing with the enforcement of the Provincial Offences Act. or 1;1., ~ 9 Referring to the specific duties and related tasks in section 3 1 of the position specification - and some thirteen specific duties are set out in this part of the position specification covering 50% of the job - the grievor testified that he was either qualified, and/or experienced, and could perform almost all oJ them There were, however, a significant number of duties that the grievor had either never performed, or with respect to which he gave a qualified response For example, one of the duties of the position is the preparation of a crown brief detailmg the findings of an investigation The grievor testified that he has not prepared such a brief; however, he knew what one was and he knew where to go to get the information required to prepare one In a similar vein,. the grievor has never served a subpoena, but he testified that here too he could easily obtain the information he needed to do this job. The grievor has not briefed legal counsel, he has had, however, conversations with Ministry lawyers. The grievor has not appeared as an expert witness for the Crown,. nor has he ever attended court to set trial dates A major part of the job, some 40% of the position, is the coordination of mine closure plans, and the grievor testified that his experience in this respect was limited to municipal. landfill sites. While the grievor had no direct experience with mine closures, he believed that these closures would involve obtaining soil and w~ter samples for analysis The grievor was not experienced in setting and meeting approval process deadlines, but was, he testified, experienced in the other duties included in this and the following section of the position specification, and he explained in each instance the specific experience which he had -- - - - - .. {ij 10 Cross-Examination. of Mr. Smith The grievor was asked a number of questions in cross-examination, beginning with his experience as an Environmental Technician. While the grievor worked in this job for more than four yeats, it is fair to say that his appraisals indicate real and continuing concerns about his job performance His first appraisal, dated October 9, i 980, appraises the grievor as working at below the expected level The grievor stated that it was his view that this appraisal was premature as he was new on the job and that it was understandable that it would take him sdme time to reach the expected level In his view, it might take a person up to two years to become fully competent in the Environmental Technician job, the time needed depended to a considerable extent on the mentoring that was made available When the grievor first began work as an Environmental Technician in the Timmms office, the technicians were divided into two .,groups municipal and private and industrial The grievor was assigned to the former group, although later in his tenure, around 1982, the two groups merged The grievor'snext appraisal, dated January 29, 1983, again rates the grievor as -\ working at below the expected level This appraisal states,among other things, that the grievOr performed less work than expected and that he had difficulty in prioritizing his assignments The appraisal concludes with the following observation "Bob's present attitude toward hi$ personal goal of wantmg to get out of Timmins as soon as possible shows up in his poor attitude towards the job, his lack of motivation to successfully complete tasks with pride and his lack of effort in ensuring that the Ministry and his clients interests are effectively dealt with" Close supervision was imposed on the grievor in the aftermath of this appraisai -- -- - - , _n__n_n__ _ __ ---- .. \\ I~ 11 The grievor did not agree with much of the substance of this appraisal and he wrote a long memorandum to the employer setting out some of the reasons for his poor work performance This membrandumexplains that at the time of the appraisal the gnevor was separated from his wife and daughter and was also suffering severe financial difficulties, and these problems affected his ability to perform all of his assigned work, a situation which was exacerbated by the fact that he was given responsibility for a number of "high demand projects." As a result of this performance appraisal, the grievor was denied a merit increase The grievor was given another performance appraisal in September 1983, and this apprai$al indicates that he was working at the expected level He remained, however, under close supervision, and another performance appraisal was scheduled at the end of the year According to the grievor, by this time he had sorted out his p~rsonal and financial problems and was giving his best to the job H~wever, the grievor decided to move on when another employment opportunity presented itself, and the employer began reassigning many of his tasks. Turning to his duties and responsibilities as an Environmental Technician, thegrievor agreed that his appraisals and his memorandum indicated that a good portion of hiS work focused on municipal and private abatement projects. He did not agree that this was an exclusive or overwhelming focus, however Nevertheless, when the grievor filled in his ".Employee Portfolio" In June 1993, the document circulated within his Ministry and to other ministnes as part of hiS search for new employment opportunities, he emphasized his municipal and private abatement work, and made only passing reference to the review of industrial development proposals The .- gnevor agreed that he nowhere indicated on this form that he had conducted --- - --- --- -- Iii c .\'1 12 inspections of industrial sites The grievor insisted that he had done so and that the omission was inadvertent and was definitely not a reflection of the fact that his industrial activities were minor. Turning to the position description for the Rehabilitation Inspector, and in particular to the duties listed in that job description, it is fair to say that , in virtually every case where the grievor had, in chief, indicated that he was either not qualified to perform a particular puty, or when he qualified his ability to perform that duty, this evidence was confirmed in cross Moreover, it is also fair to say that in a number of other cases where the grievor had indicated without reservation that he was qualified to perform a particular job, his qualifications were, following careful probing, not readily apparent. At best, his knowledge of key duties 'and responsibilities of the position can be described as superficial, although in each case where his testimony indicated as much, the grievor took the position that while he might not have the necessary information immediately at hand, he could readily obtain it. Re-examination of Mr. Smith In re-examination, Mr Smith testified that there was significant overlap between the municipal and private and industrial sections of this department. Moreover, there was also, in his view, considerable overlap in the duties performed by the Environmental Technicians The proof of this overlap was demonstrated by the fact that when the two ~ections merged, the inspectors in each section were not given any additional training to bring them up to speed about the work of the other section I ,~~ ,~ \ 13 The Employer's Case Evidence of Pat Bolger Mr Bolger was called asa witness on behalf of the employer He testified about his background and experience, as well as about his current duties and ( responsibilities Suffice it to say, with respect to his background and experience, that Mr Bolger has extremely impressive credentials At university, then for many years in the private sector, and then with the Ontario .government, Mr Bolger has worked in su~cessive'y more" senior positions dealing with mines. His resume indicates, and Mr Bolger gave evidence on this' point, that he has fourteen years experience in the mining industry coordinating complex environmental projects followed by six years experience in government coordinating mine rehabilitation projects He has a comprehensive knowledge of many aspects of mining operations, and possesses all the skills and knowledge required" for the Rehabilitation Inspector's position It should also be noted that Mr Bolg~r has taken a great many mine-related courses, and is also involved in delivering instruction programs to other employees While there were one or two duties listed on the position specification which Mr Bolger has not yet i performed, he demonstrated in his evidence that he was ;familiar with what these particular duties required and could, if called upon, perform them. Mr Bolger descnbed hIs duties as a Rehabilitation Inspector; and testified that one of his major responsibilities was the administration of mine closure review plans He is personally responsible for twelve niines that require mine closure plans He is also responsible for a number of abandoned mines which require inspection and identification of problems in order to evaluate safety and other .hazards. According to Mr Bolger, abandoned mines present a variety of safety risks, and it is his job to .~ 14 determine how best to reduce those risks Part of this task involves the determination of the ownership of the mine which reqUIres attendance~ a~ the Land Registry Office Mr Bolger will also check with the Mining Lands Group and the Mining Recorder to obtain additional information Mr Bolger Inspects working and on-going mines on an as-needed basis If a site has serious problems he regularly visits it in order to monitor the situation. When a mine is being closed Mr Bolger will first the visit the -mine as part of the initial clOSure plan r~view This first visit involves a thorough tour \ of the site and a comprehensive assessment of the health, safety and environmental risks Chemical use will be identified, holes and other risks noted, and storage and waste facilities appraised Mr Bolger will also examine all of the water ponds and sewage system, and- search out evidence of leaching Following this initial visit, Mr Bolger will involve experts from his Ministry and other ,ministries; sometimes outside specialists may have to be called in Mr Bolger testified that it is a legal requirement that such mine closure plans be prepared and approved as a precondition to the closure of a mine, and Mr Bolger described the extensive process he pursues as the coordinator of these plans Once drafted, Mr Bolger c~refully reviews t.he draft plan and makes suggestions for changes and amendments. Once approved, and this process was also described, Mr Bolger .monitors the implementation of the plan in order to insure compliance These duties, and others, are listed on the position specification for the Rehabilitation Inspector's job, and Mr Bolger described some of the indicated duties in considerable detail For example, he told the Board that his job required him to read mine plans, and to determine from those plans the location of holes that needed to be capped. Stopes, large underground 1:: !.' 15 cavities, must be located and filled, and the crown pillars, the shafts that maintain the surface area, may have to be reinforced After the mine is closed, Mr Bolger's oversight role continues, and he described the on-going .monitoring job he perform~, which involves the circulation of reports to other government officials and the coordination of responses., two activities which are directed at ensuring continuing compliance In another example, again drawn from the position specification, Mr Bolger testified about the different types of reports he would write, anq these reports would depend to a considerable extent on the type of mine and the particular issues presented Mr Bolger testified that he has taken numerous courses on environmental law enforcement and interviewing skills for investigators There was, Mr Bolger testified, a significant difference between gathering samples and gathering evidence Gathering samples merely required putting the sample in a bottle and sending it to the laboratory When he gathered evidence, he ensured that sterilized bottles were used, that the bottle was immediately sealed after the sample was collected, that a .label was affixed indicating time and date and that various other precautions were taken to ensure the integrity of the evidence Mr Bolger .has recently prepared a Crown Brief, and he bnefly described the contents of that brief He has also obtained and executed court orders,and while he has not served as an expert witness, he has testified in court on behalf of the Ministry He regularly speaks at public meetings and to association and environmental groups on the activities of his branch Cross-Examination of Mr. Bolger In cross-examination, Mr Bolger was asked a number of questions about his training, and he described in more detail the various courses which he took. ~ 'i: ~ 16 Some of the courses were day long, others lasted for up to one week. Mr Bolger was asked a number of questions about the specific duties of his job He agreed that he did not usually personally conduct title searches In the normal course he would sehd someone to do that task in his stead Moreover, while he earlier testified that he was involved .in prosecutions, in cros~-examination he agreed that his involvement, to date, has been extremely limited, although he has been involved in a number of potential prosecutions. Mr Bolger has not laid any charges" and he has only prepared one Crown Brief That brief will lead to the laying of charges While Mr Bolger has only testified once on behalf of the Ministry, he has been subpoenaed to give evidence on a number of occasions Mr Bolger has not had occasion to deal with the news media, but he regularly interacts with members of the public. Mine Closure Plans are ultimately approved by the Director, however, Mr Bolger is responsible for ensuring that the plan is complete before it is submitted to the Director While Mr Bolger relies on advice received from Ministry engineers, he also conducts his own careful review of the plan to ensure it meets Ministry standards Before Mr Bolger obt.ained the Rehabilitation Inspector's position, he was an Environmental Officer He testified that in that capacity he investigated, spills, and did so for municipal, private and industrial clients. Mr Bolger a~reed that his work in this position was primarily focused on the municipal and private side After investigating the spill, Mr Bolger would draft a report and comment on compliance Mr Bolger agreed that his work in this respect was an asset to him when he became a Rehabilitation Inspector Finally, Mr Bolger testified that he has been involved in the training of the other Rehabilitation Inspectors. The purpose of this training was to bring everyone to a common knowledge level While there were, at the relevant I .1 !; 17 time, five Rehabilitation Inspectors in the office, the training was made available to some twenty branch employees Some of the traming, which Mr Bolger arranged but did not personally provide, was in the form of day-long seminars, while some of the training was informally given during the course of regular office meetings. Mr Bolger testified that there have not been any significaht changes to the Mining Act since' 1991 The eVidence having been completed, the matter tl.!rned to argument. Union Argument Union counsel began his submissions by defining the issue before the Board This case, lie argued, was not about which candidate was superior - and counsel candidly acknowledged that if this case were a job competition, Mr Bolger would likely be confirmed in the position - rather, this case was about the proper interpretation of Article 24 9 1 (d) And in that respect, the union took the position that the grievor met both of the requirements of this provision He had served in the relevant class series and he was qualified to perform the work of a Rehabilitation Inspector Union Submissions with Respect to the Grievor's Qualifications Beginning with the grievor's qualifications to perform the Job, counsel took the position that the jurisprudence on this issue was both settled and accepted Counsel referred to Loebel 331/82 (Verity) In interpreting a collective agreement provision similar to that at issue in this case, the Board in Loebel set out the standard to be applied' In our view, "qualified to perform the work" must be interpreted broadly if we are to give any real meaning to the provisions "of the Article. "Qualified to perform the , I .. 18 work" must relate to the requirements of the job in question. (at 18) In our view, for the Grievor to have succeeded he must I have demonstrated the necessary skills and knowledge to perform at a minimal level of competence all of the functions of the [position in question]" (at 20) To determine if a surplus employee is qualified to perform the work. the Board accepts M~nagement's argument of "present ability" to the extent of minimum competence in all components of the job requirements To adopt any higher test of present abilIty would be to destroy the significance of Article 24 2 3 That Article has been mutually agreed upon by the Parties to benefit surplus employees by affording them certain preferential rights of appointment. Few, if any surplus employees would succeed in moving successfully from one Ministry to another if the accepted test were more stringent than minimum competence in all of the major components of the job Such an interpretation does not me.an that a surplus employee must possess skill and knowledge in all activities associated with the position However, it does mean skills and knowledge of the main components of the position. In the subject case, knowledge of the' Ministry's objectives, policies and programs are all major components of the position, each of which is essential to a surplus employee to be deemed "qualified to perform the work" (at 21-22) After setting out these broad principles, the Board in LoebgJ dismissed the grievance having found that the grievor in that case did not meet the requirements of the provision It concluded with the observation that there was "no doubt" that the grievor could have become qualified for the position in tIme That was not, however, "the issue before thIS Board" (at 23) ~-~ ---- ,~ 19 While takmg the position that the Loebel case set out the general standard ,. to be applied, counsel also referred the Board to a number of other authorities in support of his submissions including Hill & Campbell 492/83 (Roberts), Re Queen Elizabeth Hospital and CUPE 2 L.A.C. (4th) 281 (Craven), Naraine 1320/90 (Stewart), Henderson 1097/91 (Barrett), Simard 33/82 (Roberts) and Tsiang 1055/85 (Kirkwood) In the union's view, one way, and an appropriate way, of stating the test had been suggested m the Simard case "The question is, can the grievor do the job? We are not looking for the best. We are looking for someone with the minimum qualifications." In the instant case, the union took the Rosition that it had met its evidentiary burden and had proven that the grievor, at the very least, had the minimum qualifications for the Rehabilitation Inspector's position Counsel pointed out that the employer never led any evidence about the requirements for the job and, as a result, the only evidence about those \ requirements before the Board was set out in the position specification and position posting Counsel canvassed the qualifications referred to in the posting, and argued that the grievor demonstrated in his evidence that he possessed them. And in this regard, counsel noted that some of the duties which the grievor testified that he had not performed, such as preparing ! Crown Briefs, were, on the employer's own evidence, a small part of the job Very simply, the union argued that the grievor had proven that he had all of \ the requirements of the job specification and posting Counsel submitted that as an 'Environmental Technician the grievor had developed expertise in the mining area, and counsel referred to some of the grievor's evidence about attending at mine sights and conducting investigations and writing reports pertaining to both operating a.nd closed mines There was no doubt, - ~ l' .' 20 counsel suggested, that the grievor had an excellent knowledge of environmental legislation for his Environmental Technician position was largely concerned with ensuring environmental compliance And to this end, the grievor was experienced in obtaining samples, and had taken some courses respecting the rules of evidence While the grievorhad never actually laid any charges, that was, in the union's view, neither here nor there as the fact of the matter was that the grievor was prepared and able to do so should the appropriate opportunity arise The grievor was also, the union argued, fully aware of Occupational Health and Safety legislation, and this was illustrated by the fact that he served as co-chair of the Ministry's Occupational Health and Safety Committee In support of these submissions, counsel referred to various portions of the grievor's Environmental Technician position specification which indicated that incumbents of that position had responsibilities of this kind And this experience, and these qualifications, provided the grievor, in the union's view, with the present ability to perform the contested position The union, however, took the position that in meeting its onus it would be reasonable in the circumstances of this case for some initial training to be provided to the grievor if the Board' was of the view that the grievor was lacking with respect to knowledge of the Mining Act. All of the Rehabilitation Inspectors had received training upon entry, and it was only right that the grievor receive similar training Counsel referred to the Board's decision in Hill & Campbell In that case the Board found that the Ministry was looking for "present ability" However, in the circumstances of that case, "present ability" would be acquired following "completion of a mandatory ten-week training course which was required to be completed by all' persons hired on as Occupational Safety and Health Officers. It was acknowledged that if -- -- - .. 21 either of the grievors had been successful, they would have been put through the course" (at 19) Likewise, the union argued, "present ability" in the instant case should be taken to mean "present ability" following receipt of whatever training the other Rehabilitation Inspectors received upon entry into the job Counsel suggested that the Mining Act, like other statutes, changes from time to time and It did not made sense, in these circumstances, to expect a newly hired employee to be fully familiar with its provisi.ons Counsel concluded this part of his submissions by urging the Board not to give too much w~ight to the grievor's performance appraisals. The evidence established that these appraisals were given at a time when the grievor was experiencing serious economic and personal problems. The evidence established that he has overcome these problems, and counsel noted that the grievor received a promotion in the Ontario Public Service when he applied for and obtained the .Economist 4 position Union Submissions with Respect to the Class Standard In the union's view, the evidence established that the grievor 'had served in the Environmental Officer class series. It was agreed between the parties that that series changed in the spring of 1989, retroactive to 1986, two years after the grievor left the job However, in the union's view, for the purposes of exercising rights under Article 24 9 1 Cd), onetime membership in the Environmental Technician series was sufficient to bump, all the other requirements being met, into the Environmental Officer series "In support of this submission, the union referred to a September 8, 1993 letter to the grievor from the Ministry's Redeployment Coordinator, Ms -.----- .} -r. 22 -~- Beverley Webb Ms. Webb states in this letter that the Ministry had, following Issue of a surplus notice to the grievor, reviewed positions for displacement in the Economist series and, "basea on.-your work history with the MOE, positions classified in the Environmental Officer series 1-5 " The union argued that this letter constituted an official admission on the part of the employer that the grievor was entitled to Iqok to jobs in the Environmental Officer series in the exercise of his bumping rights Conclusion to Union. Submissions In conclusion, the union argued that it had discharged its burden in this case as it had proved that the 'grievor had the present ability to perform the job and tnat he had, at one time, worked in the Environmental Officer series Accordingly, the union asked that the Board issue a declaration to this effect, and remain seized with respect to the implementation 'of its award and with respect to the computation of damages Employer Argument Employer counsel began his submissions by indicating his general ~ agreement with the union about the principles of law applicCible in this case Employer counsel did, however, have a few additional observations to make. In the employer's View, "qualified to perform the job" and "present ability" did not generally mean "qualified to perform the job" and "present ability" following training The standard which the Board has consistently applied in cases of this kind, in the employer's view, is present ability to perform all of the functions of the job This standard, employer counsel argued, was made clear in the Loebel case and in the cases which followed In that context, Hill & Campbell did not represent a change to the standard as the training that was given there was a mandatory and structured ) .-.- ...- .- - ----~ - - -- - - - - - -- -- -. - - ,. r. 23 program which each new employee of that particular position was required to take Exceptions. of" this .kind aside, employees could only exercise their Article 249 1 (d) rights if they had the ability to immediately perform the job The fact that they had the ability to learn the job at some future date was not an appropriate consideration to take into account. Employer Submissions with Respect to the Grievor's Qualifications In the instant case, counsel argued that the evidence was clear that the grievor did not have the present ability to do the job While many mdividuals with four-and-a-half years of experience in the Environmental Technician's position might present a plausible claim in a case of this kind, the employer argued that an examination of the grievor's work history established that his claim to the Rehabilitation Inspector's position could not be given much weight. Counsel argued th~t the grievor's performance appraisals indicated that the grievor took considerable time to reach a working level in the Environmental Technician position, and that was a lower rated position then the one now being sought. The employer also took the position that the evidence established that when in tt)at job, the grievor had minimal, at best, exposure to the mining industry The main focus of the grievor's attention was mUnicipal and private sewage and water treatment facilities, and what exposure he had to mining was mcremental Indeed, in the employer's submission, the evidence established that even after the municipal and private section was merged with industrial, the grievor's caseload continued to focus on the former And, soon after he reached a workmg level of competence in his job, he had a number of personal crises that led to a reduction of his workload and caused the employer to deny the grievor a merit increase 'and to put him under close : ., .. 24 supervision Sometime after that the grievor obtained a new job, and his remaining case load was gradually transferred to other Environmental Technicians "- , There really was no doubt, in the employer's view, that the grievor did not have the qualifications or the present ability to do the Rehabilitation Inspector's job. He did not have "comprehensive knowledge of mine rehabilitation legislation/theory/practices" Collectively all of the grievor's evidence about his expenence with mines could be summanzed, .~ the employer suggested, by the statement that he had been professionally involved to an extremely limited degree with a few mines on a few occasions It was far from clear, the employer suggested, that the grievor had ever actually conducted \ an annual inspection of a mine On this ground alone, the employer submitted that the grievance should be. dismissed This was not, in the employer's view, the only ground for the Board reaching this result. While the grievor may have had some general knowledge about environmental legislation as applied to municipal and private water and sewage, his knowledge of environmental legislation respecting the mining industry was extremely limited, as was, counsel argued, his knowledge of occupational health and safety legislation The position required that the grievor have, in just one example, a "thorough" knowledge of occupational health and safety legislation The evidence established that the grievor did not know what the internal responsibility system was, yet he was still claiming tha~ he met this threshold Counsel suggested that the evidence established that he did not. --- t'. t. 25 The employer also argued that the grievor did not have any apparent knowledge of mining sequence operations, and his experience .~nd training in. environmental investigation techniques, due process of law, the rules of evidence and court procedures was, generously described, extremely rudimentary The grievor's lack of qualifications for the job was also indicated, the employer argued, by his evidence with respect to the duties and responsibilities enumerated on the position specification There were many duties that the grievor had not performed, and when his evidence was probed about some of the duties he claimed familiarity with it was clear, in the employer's view, that the grievor did not demonstrate present ability or qualifications necessary to do the job. There was no evidence that the grievor had real familiarity with mine closure programs and protocols, and there was no evidence that he could do this part, i'ndeed, any part of the job. Mr Bolger's evidence indicated the kind of qualifications required for the position, and the employer argued that any comparison of Mr Bolger's testimony with that of the grievor established that the grievor did .not have the ability to do the job. The grievor was simply not, the employer argued, ready to assume the duties and responsibilities of the position in question The faGt that some individuals received training upon assumption of their positions was not a relevant consideration in this case, for the training that was received was not part of a formalized program required of all new employees In the employer's submission, the evidence clearly and unequivocally established that the grievor did not have the qualifications or present ability to perform the position However, there were, in the employer's - .., - .. 26 view, a number of other considerations to take into account. Counsel suggested that Article 24 should be strictly interpreted There was an incumbent in the position - and counsel noted in passing that many of the cases relied on by the union concerned attempts to bump into vacant Jobs - and before that incumbent was bumped the Board should, counsel 'argued, be absolutely certain that the employee exerCising bumping rights was ready and able to begin work on the job. Given that the evidence in this case established that he was not, counsel urged the Board to strictly interpret the provision and deny the grievor's claim. .. Employer Submissions with Respect to the Class Standard In the employer's submission, the grievor's claim must also fail because he had never worked in the Environmental Officer class series For the reasons already outlined, including' the implications of a bump on the incumbent, counsel argued that this part of the provision should be stnctly applied Had the parties wished, they could have opened bumping rights to employees who had served in the classification or "any predecessor classification" They choose not to do so, and counsel argued that the Board should not interpret Article 2 4 so as to include predecessor classifications The class standards for both the Environmental Technician and Environmental Officer classificatIons had been introduced into evidence and a purview of them revealed that they were not the same There was simply. no justification, in the employer's view, to broaden bumping rights by extending them to predecessor classifications when the parties themselves had chosen not to do so Conclusion to Employer Submissions In conclusion, counsel asked that the ,grievance be dismissed on the basis I I I I I . 1.4- r. 27 I ~ that the union had not proved that the grievor was qualified or had the present ability to do the job, and because he had not, as is required by the collective agreement, previously served in the class series to which ,he now was seeking to bump Union Reply Union counsel made a few observations in reply He noted that all of the employees with the exception of Mr Bolger received training upon assumption of the Rehabilitation Inspector's posItion, and there was no reason why the grievor should be precluded from obtaining. that position if he required a commensurate amount of orientation training Counsel also pointed out that when the municipal and private Environmental Technician .sections were merged with the industrial in approximately 1982, none of the technicians received additional training, and the only explanation for this was that the Ministry was of the view that all of the Environmental Technicians were qualified to perform the full -range of functions. This evidence, which was uncontradicted, precluded the employer, In the union's submIssion, from arguing that the grievor did not have relevant training and experience with respect to mines. With respect to purported differences in \ the class standards, counsel argued that there was no evidence of any significant differences, and counsel pointed out that the employer, had it wished, could have called evidence of this nature but had chosen not to Finally, counsel again cautioned the Board not to compare the grievor with Mr Bolger There was no doubt but that Mr Bolger was a qualified and talented employee But that was not the test. This case was not about companng the grievor and Mr Bolger This case was about whether the grievor had the ability to do the job, and the union submitted, for the reasons already indicated, that he did .'!'- ~..~ ;- .o. 28 Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that the grievance shoulQ be dismissed While we have considerable sympathy for the personal circumstances which Mr Smith now finds himself, and can readily understal1d his motivation in seeking a position in Sudbury, we have no choice but to conclude that the grievor is not qualified to perform the position in question In the result, the grievance is dismissed Even a very broad interpretation of the the words "qualified to perform the work" would dictate this result as the grievor does not have, to borrow the language used in the Loebel case, the necessary skills and knowledge to perform the main components of the Rehabilitation Inspector's position at a minimum level of competence His evidence established that while he may have the present ability to perform some of the tasks of the job, he does not have the presentability to perform the job at a minimal level He has no familiarity with the Mining Act, and what familiarity he has with the other key legislative enactment, namely the Occupational Health and Safety Act, does not appear to extend to conditions found in mines TA~ grievor has no real knowledge about the mine closure plan process, while the eVidence establishes that this function occupies approximately 40% of the incumbent's time His knowledge of the mining sequence is scanty, at best. In another example, the grievor does not have the skills and knowledge necessary to conduct a proper investigation The grievor may have the ability to perform a few discrete tasks, but this does not equip him with the ability to do the job at a minimal level ~, ~. 4., 29 When the purposes of the position, and the skills and qualifications. required for it, are considered, it IS clear that the grievor could not, in either the short or medium term, perform this job While Mr Bolger is obviously an except~onal employee, his evidence about his duties and responsibilities (even when, discounting it significantly to take into accollnt the fact that he is performing the job at a superior level), taken together with the information found in the pOSition specification and job posting, is properly compared to the evidence of the grievor, and the documents relied on by the union in support of its case The result of this comparison is the conclusion that the grievor could not do this job. The fact of the matter is that the grievor would not simply require some orientation training to get up and running Had that been the case, we may have reached a different result. Neither the evidence of the grievor, nor the documents introduced, assist the grievor and the union in this particular case A review of the Environmental Technician position specification does not 'lead us to conclude that the job would provide a former incumbent with a necessarily strong claim to the position presently at issue The large part of the duties and responsibilities of that pOSition are not directly relevant to the Rehabilitation Inspector's posItion The purpose of the Environmental Technician job was "to undertake the surveillance, investigation, and assessment of industrial, municipal, and private sources of pollution, and to develop and/or assist in the development of abatement programs and to respond to queries, complains, and contingency problems associated with these sources" The skills and knowledge required of that job are "a working knowledge of the theory, principles and practices of industrial and/or municipal environmental control and pollution abatement and land use planning practices, well developed knowledge of industrial processes ~ '~ 1t~ '" 30 and/or municipal water supply, sewage disposal systems and waste management procedures " Obviously, the purpose of that position is quite different from the purpose of the position now being s049ht, as is the skill level required When the grievor's own evidence IS factored Into the equation there IS little reason to believe that he has the skill, knowledge, background or experience to perform the Rehabilitation Inspector's position It should be noted, in this respect, that the class standard for the Environmental Officer 5 position, which is the classification of the Rehabilitation Inspector's job, states, among other things, that the incumbent will "be required to have extensive knowledge of environmental investigation and enforcement procedures or proven technical knowledge such that the employee is recognized as an expert in a specific field. A thorough knowledge of a wide range of environmental legislation, regulations, and pOlicies as well as a working knowledge of related legislation. and regulations is also mandatory " We can only conclude that the grievor is also completely lacking in this respect, insofar as the Rehabilitation Inspector's position is concerned Not only did the grievor's evidence fail to satisfy us that he has the qualifications for the position, the documentary evidence which he personally prepared serves to corroborate this conclusion The grievor could have,had he wished, emphasized his knowledge of mining matters on his Employee Portfolio. Not only did he not do so there, he did not do so on other occasions, such as when he submitted his resume in support of his application for the Economist 4 position No mention is made on that resume of any activIties related to mines The grievor describes his Environmental Technician position as one focused on municipal and private water pollution and waste disposal At the end of the day, the conclusion is -- -- !j"' ,~~ ':~ " 3-' inescapable that the grievor .has no relevant experience with respect to mines When all of this eVidence is considered we can only find that the grievor is not qualified to perform the job in question Accordrngly, 0n this basis alone the grievance is dismissed A final observation is in order While we have dismissed this grievance on the basis that the grievor was not qualified to perform Mr Bolger's position, had we found that he was qualified we would have awarded him the job satisfied as we are that he had previously performed a position in the classification in question. In this case, the evidence establishes that the Ministry, in searching for a new job for this grievor, considered the Environmental Officer series This constitutes an admission that the grievor has bumping rights in that series, and on this basis we would have found that he was entitled to exercise his bumping rights in this series Obviously, an employee's seniority interest, particularly ,in times of economic restraint accompanied by a reduction in staffing' which, of course, occasioned this grievance, should not be considered lightly The grievor in this case is the senior employee, and the parties have agreed that senior employees, provided qualified, are entitled to exercise bumping rights in their class series and in any class series in which they have previously served. If the employer wishes to take the position that the class series has fundamentally changed since the time when a particular employee served in it, and that series should not therefore be considered rn the exercise of a bumping claim, it is incumbent on the employer to lead evidence to that effect. In this case, the employer explicitly acknowledged - -- ,I.~.' ,e,. '~ ... '- 32 to the grievor that the Environmental Offic~r senes was an appropriate one to consider in a bumping claim. ~ However, as already indicated, the grievance fails because the gnevor has failed to demonstrate that he is qualified to perform the position in question Accordingly, and for the foregoing reasons, the gnevance is dismissed DATED at Toronto this 8th day of FebruarYt 1995. r t//'v ------------- William Kaplan 9~SO~ F Collict Member '1 );.,.. ~~~~t~ I Thompson Member , \ .-- -