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HomeMy WebLinkAbout1994-0147.STEPHENS99_06_16 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 0147/94 OPSEU # 94C132 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Donna Stephens) Grievor - and - The Crown In RIght of Ontano (MInIstry ofCommumty and SocIal ServIces) Employer BEFORE Nimal V DIssanayake V Ice ChaIr FOR THE Susan PhIlpott GRIEVOR Counsel, KoskIe MInsky BarrIsters & SolICItors FOR THE Peter M. Rusk EMPLOYER Counsel, Legal ServIces Branch Mimstry of Commumty and SocIal ServIces HEARINGS August 18 1995, January 27,1997, June 16 July 13 14, 1998, January 27, 28, February 4, 18, 1999 (Wntten submIssions on remedy completed on March 9, 1999) - 2 AWARD The Board is seized with a grievance dated December 7, 1993, filed by Ms Donna Stephens The statement of grievance is as follows In May of 1991, I grieved my dismissal During this time my employer withheld pertinent information that caused me to lose the opportunity to apply for a full-time position Ms Stephens commenced employment at the Southwestern Regional Centre (SRC) in Blenheim, Ontario in 1964 While there was confusion about the classification of the positions she held since 1964, what is established is that Ms Stephens continued to be employed at the SRC until 1991 with two brief interruptions related to her pregnancies SRC lS a facility providing residential and treatment serVlces to severely handicapped persons In 1991, Ms Stephens was working at the SRC as a Special Needs ConsultaDt as an unclassified employee At the time she had approximately 20 years of experience working In various capacities with developmentally handicapped persons at the SRC For 10 years she was employed as a full-time classified employee, and the rest as a contract (unclassified) employee or as a self employed consultant The grievor's problems arose early in 1991 when it was announced that a number of positions at the SRC, which had been - 3 ,.. occupied by unclassified employees, were to be converted to classified positions and posted, as required by the collective agreement Ms Stephens was notified that as a result her services as an unclassified employee performing special needs duties would no longer would the required At the time, several postings were advertized including one for 12 positions titled Developmental Service Worker, classified as Counsellor 2 Residential Life (RC2) Ms Stephens applied for one of these positions This particular posting listed 9 "qualifications", one of which was "successful completion of the Developmental Service Worker Certificate Course or the Independent Work Study Program" The employer at the time had in place a policy titled "the Staffing Standards" which set out the credentials required for various positions within the Minlstry The credentials required for the position of RC2 were described as follows Community college diploma in a field directly related to the positions, i e Developmental Services Worker diploma, Child Care Worker diploma OR A Bachelor's degree from a university of recognized standing or a non-related college diploma, a minimum of one years experience at the Counsellor 1 Residential Life, Child Care Worker 1 or Medical Assistant 1 levels, and successful r - ~ 4 completion of an Individual Work Study Program (IWSP) OR At least four credits towards a Bachelor's degree or a community college diploma program or, for - those who are mature applicants and have grade ten education, a minimum of 18 months and a maximum of 24 months at the Couns I Res Life, C C W 1, or Med Ass't (and) successful completion of IWSP during this time period Requests for exemptions or equivalency assessments should be forwarded on a case by case basis to the Policy and Initiatives Section, Human Resources Branch (Emphasis added) The Independent Work Study Program (IWSP) referred to in the job posting and the emphasised portion of the Staffing Standards was offered internally by the SRC in the 1970s and 1980s, but was no longer offered after 1986 Ms Stephens had not completed this program The DSW was a 2 year college diploma Ms Stephens had completed many, but not all, of the courses required to receive the diploma She would have had the-DSW designation had she completed the 6 week re-training offered by the employer In early 1970 However, Ms Stephens had missed that As a result, she did not possess the educational credentials required by the posting for which she had applied - 5 Ms Stephens felt that it was an absurd situation, for she felt that the posted positions were the same as the position she had occupied for several years quite competently She approached Ms Pat Duquette, the Acting Manager of Human Resources Ms Duquette undertook to ascertain whether Ms Stephens had "equivalency" to the DSW designation, and if not what she had to do to compensate for the 6 week retraining she had missed A substantial amount of evidence was tendered about various communications which followed between Ms Duquette and Ms Stephens and between Ms Duquette and the Toronto Head Office of the Ministry It is not useful to review that evidence in detail It suffices to note that Ms Duquette sought a decision from the Toronto Head Office in deciding whether Ms Stephens had the equivalency to the DSW Suggestions were made to Ms Stephens that she may be able to acquire equivalency to the DSW by completing certain courses of study Ms Stephens commenced doing the courses as suggested, in an attempt to acquire the required educational credentials prlor to the competition However, ultimately Ms Stephens was advised that the only way she could qualify was by doing the courses to complete the full DSW Unfortunately, there was no time for Ms Stephens to do all of the missing courses in time for the competition in question - 6 While inquiries were being made about Ms Stephens' equivalency status, Ms Duquette allowed her to participate in the competition However, when the results were released Ms Stephens was not one of the successful candidates As a result, by letter dated May 30, 1991, Ms Stephens was informed by Ms Duquette as follows Due to the recent Developmental Service Worker competition, and the subsequent filling of the Residential Counsellor 2 vacancies within the facility, it has become necessary to formally notify you that your current contract will be terminated effective June 9, 1991 I would like to thank you for your care and concern for the clients during your employment at Southwestern Regional Centre, and encourage you to apply for any future opening that may be avallable Ms Stephens lodged a grievance dated June 26, 1991 stating "I grieve that I have been unjustly disciplined and dismissed from my employment at the Southwestern Regional Centre" -- Thls grlevance was settled by mlnutes signed on August 19, 1991 as follows Without prejudice and without precedent the parties hereto agree to a full and final settlement of this grievance on the following terms 1 The Ministry agrees to issue to the Grievor a full-time, unclassified 7 contract as an MRC Trainee, commencing June 3, 1991, and ending on the date of acceptance of this Memorandum of Settlement 2 The Ministry agrees to reinstate the attendance credits that were standing as of June 2, 1991 No additional wages above those actually earned will be paid for the period of June 3, 1991, to the date of acceptance of this Memorandum 3 The Ministry agrees to issue to the Grievor a 12-month, full-time unclassified contract for the period commencing the date of acceptance of this Memorandum of Settlement 4 The Ministry agrees to lssue to the Grievor a 6-mon th, full-time unclassified contract, effective immediately upon expiry of the 12-month contract mentioned above in Paragraph 3 5 The Ministry and the Grievor agree that the Ministry is under no obligation to issue any further contracts (beyond those described above in Paragraphs 2, 3, and 4) to the Grievor 6 The Ministry agrees to recognize that the grievor has completed the dacum requirements of the Independent Work Study Program 7 Prior to the explry of the contract mentioned above in Paragraph 4, Grievor agrees to show to the Ministry proof of successful completion of the following - 8 college courses (list of 5 courses omitted) 8 The Ministry agrees that, upon completion of the above requirements they will provide the grievor with a certificate attesting to her successful completion of the Independent Work Study Program 9 The Ministry and the Grievor agree that after the grievor has successfully completed the above-mentioned courses, grievor will be eligible to compete for any vacant classified Residential Counsellor 2 positions at Southwestern Regional Centre 10 The Ministry and the Grievor agree that the Grievor will not be eligible for educational assistance in the form of paid leave or payment of tuition fees during the above-described time period 11 The Ministry agrees to arrange the grievor's work schedule to accommodate her attendance at college classes 12 Grievor agrees 'to withdraw the grievance Ms Stephens completed the courses specified in para 7 of the minutes, and qualified herself with the DSW designation in November of 1991 At this time she was on a full-time contract position She now had the required educational credentials to apply for a 9 classified RC 2 position, but no vacancy was forthcoming Yet Ms Stephens continued as a contract employee and was willing to wait for a RC2 vacancy However, at the end of her contract, she was not given another full-time contract Instead, the employer gave her a contract on a call-in basis which did not provide her full time hours She understood that an untrained employee had been offered a full-time contract instead of her Ms Stephens testified that she was upset and distraught over this turn of events She always felt that "something was not right" about the way her situation was handled by Ms Duquette In the period leading up to her 1991 grievance She had a suspicion that Ms Duquette had not been truthful with regard to the information she gave about her dealings with the Toronto Head Office with the advice of the union, Ms Stephens sought disclosure of her 1991 grievance file, specifically seeking disclosure of correspondence between Ms Duquette and the Toronto Head Office In the period preceding the termination of her contract Ms Duquette resisted her request for disclosure claiming that the information was privileged Ms Stephens made a formal appeal under the Freedom of Information Act, and ultimately was successful in getting an order for disclosure dated October 19, 1994 In the meantime, Ms Stephens had filed the instant - 10 grievance dated December 7 , 1993 The disclosure pursuant to the FOI order in October 1994 gave Ms Stephens access to a number of pieces of correspondent between Ms Duquette and the Toronto Head Office The disclosed documents indicate that on March 18, 1991, Ms Marilyn Sacco, HR Representative wrote to the then Administrator of the SRC, Mr Lloyd Jackson, setting out Ms Stephen's employment history and recommending that Ms Stephens' case be referred to "the Policy and Initiatives Section, Human Resources Branch, who will review her experience and training for possible equivalency" (Emphasis added) Mr Jackson approved this recommendation and Ms Duquette became involved On April 15, 1991 she wrote a letter to Mr Tod MacKellar, Manager of the Policy & Initiatives Branch in Toronto, inter alia, setting out Ms Stephen's employment background, and stating "Given her training, background and work history, I am requesting your view of her experience and training -- as it relates to the DSW 2 position" On April 23, 1991 Mr MacKellar responded as follows In response to your letter of April 15, 1991, we have reviewed the material regarding Donna Stephens with respect to her education and experience In relation to the requirements for - 11 the position of Counsellor 2, Residential Life Based on the well-researched and thorough synopsis which you submitted, our response is as follows 1 With respect to the Ministry's current staffing standard for the Counsellor 2, Residential Life position, it does not appear that Mrs Stephens possesses the primary academic requirement, i e DSW diploma (formerly MRC certificate) from a community college Your documentation indicates that Mts Stephens did not complete training requirements In the late 1960's (due to leave of absence) for the MRC certificate which would have qualified her for the Counsellor 2, Residential Life position During her years of subsequent employment at SWRC, she did not obtain this certificate either through a community college or by means of an in-house individual Work Study Program Consequently, Mrs Stephens should not be appointed to the full working level of a classified Counsellor 2, Residential Life position upon the initial converSlon of her unclassified position, HOWEVER 2 Mrs Stephens does possess one of the accepted equivalencies for an underfill appointment to the Counsellor 2, Residential Life position, i e she is a mature applicant with a grade 10 education Therefore, she can be appointed on an underfill basis as a Counsellor 1, Residential Life for a - 12 minimum of 18 months and maximum of 24 months during which time she must successfully complete an Individual Work Study Program (See staffing standard which is enclosed) Following successful completion of the IWSP and the 18 to 24 month experiential component, the underfill would be removed and she would be appointed to the Counsellor 2 level We note your comment that Southwestern's policy is not to underfill Counsellor 2 positions, however, the Ministry staffing standard does allow for certain equivalencies to the DSW certificate, and when applicants present themselves with these equivalencies, it is Ministry policy (as set out in the staffing standard) to consider these equivalencies, where appropriate This is the situation in which your facility now finds itself Conclusion Mrs Stephens' employment cannot be terminated on the basis of the staffing standard It is our strong recommendation that Mrs Stephens be appointed to a classified Counsellor 2, Residential Life posltion on an underfill basis at the Counsellor 1 level for a minimum of 18 months to a maximum of 24 months, during which time she must successfully complete an IWSP program Once the experiential and IWSP components of the underfill are completed, she can then be confirmed at the Counsellor 2 level You will note that the staffing standard also allows individual managers in conjunction with the Facility Administrator the discretion to "reduce" the experiential component of the underfill after the IWSP has been completed Considering the years of relevant experience 13 which Mrs Stephens possesses, you may wish to keep this in mind If you have any further questions or concerns, please contact Karen Braybrook, Policy Advisor, at 327-4793 On May 2, 1991, Ms Duquette wrote to Mr MacKellar again It included the following paragraph Donna is currently enrolled in several courses at St Clair College and I spoke recently with the college's counsellor about the "Human Services Certificate Program" This certificate program is apparently accepted by the associations in the local area I am attaching a description of the courses that are required for the certificate program Please review the material and advise me if this certificate program could be considered equivalent to the course work material for an IWSP The courses Ms Stephens was enrolled in and her status in each course were listed in the letter On May 14, 1991, Ms Karen Braybrook, a HR Policy Advisor wrote to Ms Duquette on behalf of Mr MacKellar, advising that t-he HR Branch did "not have the expertise or information to be able to assess the equivalency of the Human Services Certificate courses to courses which may be taken as part of an IWSP program" - 14 Having read these documents for the first time in October of 1994, Ms Stephens decided to proceed with her grievance dated December 7, 1993 Arbitrability The employer has ta ken the position that as a result of the settlement of Ms Stephens' 1991 grievance, the present grievance is res judicata The union submits that res judicata does not apply because the issues raised in the present grievance are substantially different than the issues in the grievance settled Alternatively, the union submits that the Board should set aside the settlement of the 1991 grievance because Ms Stephens was induced into settling that grievance as a result of misinformation and failure to provide material information, on the part of Ms Duquette One of the key requirements before the doctrine of res -- judicata can operate as a bar to the arbitration of a second grievance is that the grievance must deal with the same subject matter as the grievance previously settled See, Re R Angus, division of Finning Ltd , (1992) 29 LAC (4 th) 102 (Beattie) This requirement is also reflected in the oft-quoted passage from 15 Re City of Sudbury, (1965) 15 LAC 403 (Reville) at p 404, quoting from Re Mueller Ltd , (1961) , 12 LAC 131 (Reville) The grievance procedure lS designed to provide members of the bargaining unit and the union with a method of orderly precessing their respective grievances In order to avoid the expense inherent in the arbitration process the procedure provides for bona fide efforts to be made by both the grievor and management to settle the dispute at various stages and at various levels It follows, therefore, that if the grievor and/or the union actually or impliedly accept the decision of management they should not be allowed to have second thoughts on the matter and reprocess essentially the same grievance at a later date If this were to be allowed, management would never know whether, in fact, its decision had been accepted by the individual grievor or the union representing him, and management would be plagued and harassed in what would be a plain abuse of the grlevance procedure (Emphasis added) It has been also held that in deciding whether res judicata applies, considerations of efficiency and finality must be weighed against the substantive issue in question, and that prima facie the -- rights created by the collective agreement should be dominant and should give way only to a demonstrated abuse of process See Re - Governing Council of University of Toronto, (1975) , 10 LAC (2d) 417 (Adell) 16 The evidence indicates that in Ms Stephens' 1991 grievance the focus was the employer's right to terminate her The evidence was that during the grievance procedure the discussions centred around how Ms Stephens may be allowed to attain the educational requirements in order to qualify as a DSW There was no discussion as to whether Ms Stephens had "equivalency" on the basis of her employment experience The discussions during the grievance procedure nor the minutes of settlement touched upon the competition process Ms Stephens participated in The present grievance, in its written form, only referred to the withholding of pertinent information by the employer However at arbitration the union raised, without objection from the employer, as its primary grounds, an alleged breach of article 4 3, l e that the employer failed to properly assess Ms Stephens' qualifications and ability during the competition process An allegation of a breach of article 4 3 formed no part of the grievance procedure or the settlement of the 1991 grievance Therefore the primary issue raised in the present grievance is not the same, and res judicata does not bar the arbitration of the present grievance There is an additional reason for not applying res judicata in the present case The evidence indicates that at the time the grievor signed the minutes of settlement, she had not been made - 17 aware that the head office, which the employer considered to be the authority on deciding equivalencies, had concluded, inter alla, that "Mrs Stephens does possess one of the accepted equivalencies for an underfill appointment to the Counsellor 2, Residential Life position", and had stated that "Mrs Stephens' employment cannot be terminated on the basis of the staffing standard" The employer submitted that it was not bound by these opinions and recorrunendations of the head office, and that they were based on incorrect assumptions and misconceptions on the part of the head office Whether or not that is correct, the point is that there is no reason to doubt Ms Stephens' testimony that had she been given this information that the head office supported her own position, she would have had a much stronger bargaining position, and would never have agreed to the terms of settlement as she did In the present grievance she is relying on that information which she only received after she had signed the minutes of settlement Until then she was deprived of that information because of the employer's mistaken belief that the information was privileged In the circumstances, Ms Stephens' present grievance relying on this newly acquired information cannot reasonably be seen as an abuse of process 18 For all of those reasons the Board concludes that the grievor is not barred from arbitrating the present grievance The Merits The union made several arguments in support of Ms Stephens' grievance As noted, its primary position is that the employer failed to properly assess Ms Stephens' qualifications and ability as required by article 4 3 of the collective agreement That provision reads 4 3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties Where qualifications and ability are relatively equal, length of continuous service shall be a consideration The evidence before the Board clearly establishes a number of thlngs Ms Stephens missed the 6 week re-training offered by the employer early in 1970 because at the time she was away on maternity In any event she would not have received that re- training at that time because she was not employed in a residential setting The evidence is also that the retraining had a predominantly programming content It is beyond doubt that it was this missing 6 week retraining which caused the employer to deem Ms Stephens to be not qualified as a DSW In response to a 19 question from the Board, Ms Duquette had no hesitation confirming that Ms Stephens would have been qualified as a DSW if she had not missed that 6 week re-training It is also clear that the employer's concern was not about Ms Stephens' actual skill and ability to perform the duties of the posted positions, but the lack of the posted formal education as a technical requirement This was made abundantly clear during Ms Duquette's testimony She testified during her examination-in- chief that in her Special Needs position Ms Stephens "was regarded highly as a good counsellor and respected by her managers" Under cross-examination when union counsel put Ms Stephens' performance appraisals to her and asked what they indicate about Ms Stephens' work performance, Ms Duquette replied, "Even without looking at these I can say she was an excellent staff" Ms Duquette agreed that the appraisals indicated that Ms Stephens had "excellent prograrmnlng skills", and that she did all aspects of the job in a very satisfactory manner Union counsel then put before Ms Duquette the position specification for Ms Stephen's Special Needs position and the following exchange followed Q She did these duties for about 8 years? - 20 A Yes Q From 1983 to 1991? A Yes Q You knew that? A Yes Q This specification details the duties she performed? A Yes Q In 1991, this Special Needs position was converted as a classified RC 2 job and posted? A Yes Q Requirements for it became a DSW or equivalent? A Yes Q Before that Ms Stephens did the same duties for 8 years but no DSW was required? A Yes Q How does the Job In this positlon specification differ from the posted classified job? A I wouldn't say it did I'd say its essentially the same job Subsequently, counsel suggested that if Ms Stephens was lacking the 6 week retraining, her experience more than made up for it Ms Duquette responded, "No I agree she was an excellent employee But that does not make up for her education lapses" When asked what that education would add to Ms Stephens ability to be a RC2, Ms Duquette replied, "That's not the point There was 21 an educational designation prescribed We had some 700 employees in the classification who had met this prescribed education one way or the other" She agreed with the proposition, "So no matter what she had done, what experience she had - if she didn't have the formal education prescribed she would not get a position " It is evident that when Ms Duquette set out to ascertain Ms Stephens' equivalency, she intended to consider Ms Stephens' experience as part of the equivalency Thus In her letter dated April 15, 1991 to Mr MacKellar she wrote "Given her training, background and her work history, In am requesting your review of her experience and training as it relates to the DSW position" This was consistent with the recommendation by HR Rep Ms Sacco to the Administrator that Ms Stephens' case be referred to the Policy and Initiatives Section, "who will review her experie-rce and training for possible equivalency" While the employer intended, at least initially, to consider Ms Stephens' experience as part of the assessment of her equivalency, in reality that was not done When union counsel asked Ms Duquette whether she gave any consideration to Ms Stephens' significant experience as an equivalency to the missing formal education, she replied that she had no authority to - 22 determine equivalency and that it was Mr MacKellar who had that authority under the staffing standards However, she also agreed that she did not inform Mr MacKellar of the duties Ms Stephens had performed in her Special Needs position and speclfically that there was no material difference between the duties she had performed competently for some 8 years and the duties of the posted job Mr MacKellar prefaces his letter dated April 23, 1991 by stating that "We have reviewed her education and experience " Howeve r , there can be no doubt that Mr MacKellar in actual fact did not give any consideration to experience as a relevant factor in assessing whether Ms Stephens had equivalency to a DSW The extent of his assessment was to investigate whether Ms Stephens had formal education other than those specified in the staffing standards, which may be considered equivalent His review was to see if she had equivalency to the posted educational requirement through some form of other formal education - courses, diplomas, certificates etc Experience was not considered relevant to the issue of equivalency This was made clear by Ms Karen Braybrook, Human Resources Policy Advisor, who worked closely with Mr MacKellar on Ms Stephens' case She candidly testified under re- examination that her understanding was that under the staffing 23 standards, experience alone could never qualify an individual who lacked the prescribed educational qualifications She stated that she was not aware of anyone who was considered qualified based on experience alone As noted earlier, Ms Duquette was also of the view that regardless of an individual's actual skill and ability based on experience, she would not be awarded a position if she did not possess the posted formal educational designation It is significant to note that this is not a case of a grievor who had no related formal education But for the missing 6 week retraining, Ms Stephens would have been found to possess the required educational requirements In terms of the DSW designation, at the time of the competition, she was lacking only 5 courses, which she subsequently completed within a very short period The missing formal education was only a technical default There was no suggestion that she lacked the necessary skill, knowledge or ability to competently perform any of the duties of the posted positions or that obtaining the missing education would better equip her to perform those dutles The question therefore lS whether this particular collective agreement permits the employer to deny a position to an employee who is perfectly able to carry out the duties and responsibilities of the posted posltion, 24 on the sole grounds that she did not fully possess the educational requirements posted by the employer Under article 4 3 the obligation on the employer was to give "primary consideration to qualifications and ability to perform the required duties " In Re City of Edmonton, (1991 ) 20 LAC (4 rh) 445 (Power) the relevant article of the collective agreement read In making promotions to vacant positions coming within the jurisdiction of the Union, the required knowledge, qualifications and skills contained in the job posting shall be the primary considerations and, where two or more applicants are qualified to fulfill the duties of the position, seniority shall be the determining factor The job posting specified qualifications for the posted position, including "High School Graduation" The employer awarded the job to a Mr G, who was considered qualified for the job although he did not have high school graduation, and was the most senior among qualified applicants The union grieved, arguing that without the posted high school graduation Mr G was not qualified to fulfill the duties of the posted job At p 447 the Board observed Except to the extent that the language of a collective agreement indicates to the contrary, the jurisprudential trend is towards the view that the decision as to who is qualified must relate to the abilities necessary to do the job, 25 because only those factors are relevant To make a determination otherwise would be to make a decision which was unreasonable, arbitrary, discriminatory, or otherwise lacked bona fides Our collective agreement states that the primary considerations In deciding who is qualified are skills, knowledge and qualifications required by the job posting The expression "primary considerations" implies that other considerations may be taken into account as well, although as mentioned, "other considerations" taken into account must be relevant to the abilities necessary to do the job In dismissing the grievance, the Board concluded at p 448 as follows Particularly bearing In mind the jurisprudence which focuses its attention on the relevance of the factors considered by the selection panel in relation to the abilities which a suitable candidate must possess to do the job, we find that a requirement specified in a City of Edmonton job posting under this collective agreement may be deemed to have been met if it is obvious that the candidate possesses the requisite skills In Metropolitan General Hospital, (1990) 17 LAC (4 th) 57 (Roberts), the Board held that in the absence of specific authority In the collective agreement to set educational requirements, the employer was not entitled to insist on formal educational requirements as a condition precedent to obtaining a promotion In that case, the relevant article provided that "Nurses shall be 26 selected for positions on the basis of their skill, ability, experience and qualifications Where these factors are relatively equal amongst the nurses considered, seniority shall govern " The job posting for a vacancy for a part-Time Staff Educator position required, inter alia, a B Sc N Degree and experience teaching adult learners The Board was called upon to consider the power of the employer "to reject even able applicants because they lack the credentials in terms of academic degrees or specialized experience called for in the job posting" The employer submitted that the word "qualified" was to be broadly construed to include not only ability to do the job, but also possession of more formal qualifications such as academic credentials or specialized training, and that it had the unilateral management right to require formal academic credentials in any job posting Arbitrator Roberts quoted the following passages from Re St Catharines General Hospital, (1984) 13 LAC (3 rd) 378 (Teplitsky) at p 381 A qualified applicant, in my opinion, is one who is competent to perform the work required by the classification Although educational accomplishments may assist in determining whose qualifications are superior in the context of the contest which lS established by art 10, that is quite different from asserting that management can establish some level of educational attainment as a condition that must be complied - 27 with prior to obtaining a promotion If the employee is qualified in fact (has the know-how, the ability and any necessary prerequisite licences) in my respectful opinion, under this collective agreement he is qualified On the other hand, where management is afforded the right by the collective agreement to establish qualifications for a particular position, once it is determined that the qualifications are reasonable, that is, relevant and made in good faith, then in my respectful opinion it is not open to an arbitrator to require management to accept an employee without such qualifications notwithstanding the employee may be able to perform the work competently (Emphasis added) Arbitrator Roberts stated at pp 64-65 In making these observations, Mr Teplitsky was referring to a provision with the same wording as that of art 10 05(c) in the present case He indicated that unless the management rights clause or some other provision of the collective agreement afforded management the right to establish qualifications for a particular position, it could not pass over applicants from the bargaining unit who were, in fact, competent to perform the work It would not be legitimate to use educational credentials or formal trainlng to bar from promotion-~an otherwise competent member of the bargaining unit To me, this makes good labour relations sense Seniority rights are involved here, rights which often have been said to constitute the soul of a collective agreement The legitimate expectations of competent employees to progress in their careers must be glven full recognition They should not be easily trammelled At the same time, the hospital should have recourse to a - 28 means to establish from time to time, reasonable and relevant educational requirements for highly skilled jobs This can be accomplished through the exercise of a pre-existing management right to establish qualifications, the negotiation of such a right where none exists, or even the negotiation of such a right with respect to certain specified jobs or classifications In the present case, the collective agreement does not grant the hospital a management right to establish qualifications Nor was any specific provision of the collective agreement pointed to which would permit using educational credentials such as a full or partial B Sc N , or formal training in adult class-room teaching, as conditions precedent to promotion to the position of staff educator (Emphasis added) It was held that the employer was not ]ustifled in regarding the possesslon of the educational credentials as a condition precedent to promotion In the present case also, it is beyond doubt that the employer considered the possession of the-DSW designation by one or more of the methods set out in the staffing standards to be a condition precedent to the awarding of a posted RC2 position Employer counsel argued that the employer set the educational designation in good faith in the exercise of its management rights, and that since the designation required was relevant to the posted positi0~ and in 29 accordance with the employer's policy as contained in the Staffing Standards, it was entitled to do so The Board has no difficulty accepting as a general rule that the employer has the right to set educational credentials as qualifications in job postings However, in applying those qualifications to individual cuses the employer must comply with the collective agreement The language in article 4 3 is very clear, and even stronger in the union's favour than the provisions in the awards referred to above, where arbitrators have held that quallfications set by the employer must relate to the skill and ability necessary to do the job Article 4 3 obliges the employer to glve primary consideration to qualifications and ability to perform the required duties Thus any qualification or ability required must relate to the required duties In the absence of explicit authority In the collective agreement, the employer cannot set an educational credential as an independent and separate mandatory requirement, unrelated to the applicant's ability to do the job The case of Re Toronto Public Library, (1989) 5 LAC (4 th) 192 (Burkett) is instructive, although there what the grievor lacked was "four years professional library experience" that the employer had set as a qualification in the job posting The employer argued that since the union did not allege that the - 30 requirement of the qualification was not arbitrary or discriminatory, it could not attack its application to an individual who lacked the qualification In rejecting this submission, the Board at pp 200-201 stated If the employer lS correct the concept of equivalent qualification has no place under this collective agreement Equivalent qualifications are those that although not stipulated have equal significance or value in relation to the job at issue The object of any job posting (whether or not under a competition clause) is to identify the applicants who have the "ability" or are qualified to perform the job that has been posted Accepting that the employer (unless the collective agreement provides otherwise) has the right to establish relevant qualifications it would be a strange result indeed, given the overriding purpose of any job posting procedure, if an individual who possesses equivalent qualifications is nevertheless declared unqualified It is for this reason that we hold to the view that in the absence of express language rendering the stated qualifications as absolutes, with no room for consideration of whether an applicant possesses equivalent qualifications, we ought not to infer that the parties would have intended such a result In support of this view we quote from the award of Professor Rayner in Re Sunbeam Home and London 7 District Service Worker-s, supra, as follows [at p 187] These authorities support a conclusion that a board of arbitration may examine equivalency In terms of formal educational requirements This conclusion is also supported by common sense Formal requirements relate to the job To conclude that a person who lacks the precise stated qualifications, when that person can clearly establish - 31 true equivalent qualifications, would not only turn a blind eye to the realities of the situation but would also defeat legitimate expectations of employees without advancing any legitimate interest of the employer (Emphasis added) At p 202, arbitrator Burkett concluded It lS our view, along with that of arbitrators Rayner and Adams, that absent express language to the contrary, an employer, in determining whether an applicant is, in fact, qualified (that is, meets the qualifications established by the employer) , must consider whatever equivalent qualifications are brought to the competition by the individual In the present case also, the employer has not pointed to any language in the collective agreement authorizing the employer to set educational qualifications as absolutes There is no suggestion that the educational credential lnsisted upon by the employer is a requirement by law, such as a legally required licence or ticket It was set by the employer relying upon its own staffing standards See, Re City of Edmonton (supra) Indeed, the staffing standards themselves expressly contemplate consideration of equivalency on a case by case basis and the evidence is that the employer recognized the need to consider "equivalency" and set out to make inquiries However, its search was restricted to other 32 academic credentials equal to the academic credential it had established in the posting It failed to give any consideration to the grievor's experience in the very duties of the job as equivalency The evidence is absolutely clear that had the employer done that, it would have concluded that Ms Stephens was indeed qualified for the posted positions, because she was able to do all of the duties of the posted position competently, despite the missing education The Board therefore concludes that by failing to consider Ms Stephens' experience as an equivalency to the posted qualifications the employer contravened article 4 3 In view of this finding it is unnecessary to deal with the alternative submissions made by the union Remedy As previously noted, had Ms Stephens received the 6 week -- retraining, the employer certainly would have considered her to be qualified The evidence is that the duties of Special Needs position that Ms Stephens had performed for some 8 years, and the duties of the posted positions were substantially similar Ms Duquette readily conceded that The employer has also admitted that Ms Stephens was an excellent employee and highly regarded by - 33 management In that position This is attested to by her performance appraisals The employer has not in any way questioned Ms Stephens' ability to competently perform any duty of the posted position In the circumstances, the Board concludes that Ms Stephens' experience more than adequately compensated for the missing education/training and that the employer should have considered her to be qualified at the time While Ms Stephens participated in the competition, the evidence is that she was allowed to do so only pending the employer's decision on her equivalency She was not informed of her ranking in the competition The competition file had been destroyed and there was no evidence as to how Ms Stephens fared However, it is a necessary inference that once the employer concluded that Ms Stephens lacked equivalency, she was no longer in the running no matter how well she had performed in the competition process, because she was deemed not qualified for the posted position The unlon has requested that the Board direct that Ms Stephens be appointed to a classified RC2 position retroactively with full compensation The employer submits that the Board lacks jurisdiction to make such an order In addition, the employer - 34 submits that the Board did not hear any evidence about the relative qualifications of the other applicants, and that therefore it lS not ina position to order which of the successful incumbents is to be displaced by Ms Stephens In Re Martin, 1582/91, (Dissanayake) the Board concluded that the employer had discriminated on the basis of handicap contrary to article A-I by denying a promotion to the grievor because of his WCB related absences At pp 30-31, the Board wrote The Board has found a violation of the collective agreement In the circumstances the Board derives its remedial authority from section 19 (1) of the Crown Employees Collective Bargaining Act Under the provision, where the Board finds a violation, it has a broad authority, and indeed an obligation, to remedy that wrong [ In this regard see generally, the decision of the Divisional Court in Re OPSEU (Carol Berry at all and the Ministry of Community and Social Services] The objective in fashioning a remedy must be to attempt as best as we can, to put the grlevor in the same position he would have been in, if not for the employer's breach Here, a number of facts become pertinent The employer agreed that all of the applicants were more or less equal on the basis of the results of the interview process Therefore the employer decided to award the positions solely on the basis of seniority It is also agreed that the grievor was the most senior out of the 16 applicants Thus the grievor would have been made the first job offer That did not happen only because of the employer's consideration of the grievor's absenteeism record The employer considered his absenteeism record to be so poor that it 35 concluded that the grievor lacked the qualifications and ability to perform the duties of the posted position It is clear that this conclusion in turn was justified only because the employer considered the grievor's WCB related absences in breach of the Code and the collective agreement The employer, even at arbitration, did not take the position that it would have been justified in reaching the same conclusion based on the grievor's non-WCB absences alone Indeed, considering that in the two years immediately preceding the competition the grievor had so few non-WCB related absences, such a conclusion could not reasonably have been made The Board ordered, inter alia that the grievor be appointed to the posted position effective the date the first of the two vacancies was in fact filled The circumstances here are very similar The only grounds upon which the employer objected to the Board's jurisdiction to determine the present grievance, (i e res judicata as a result of prior settlement) was rejected The Board has found a violation of the collective agreement Therefore the Board must answer the question, what would have been the result, if the employer had not breached the-collective agreement There can be little doubt on the basis of the evidence that as a highly regarded employee who had performed the very duties of the posted position extremely competently for some 8 years, if the employer had not blocked out work experience as a valid consideration in assessing equivalency, Ms Stephens would have been awarded one of - 36 the 12 vacant RC2 positions In other words, she was denied a position only because the employer treated the formal educational requirement as an absolute pre-condition, and it was not entitled to do so The inevitable conclusion is that, but for the breach, Ms Stephens would have been awarded one of the posted positions In the circumstances, the Board does have the authority to make Ms Stephens whole by restoring her to the situation she would have been in, but for the employer's breach The Board orders that Ms Stephens be appointed to a full-time RC2 position at the SRC, retroactive to the date appointments were made pursuant to the posting in question It is not this Board's function to decide how this appointment is to be done It is up to the employer to decide how to give effect to the Board's order The grievor lS also entitled to be compensated for all losses that resulted from the employer's breach, including interest ---- The Board remains seized in the event the parties have difficulty in quantifying the compensation owing or in implementing the terms of this decision - 37 Dated this 16th Day of June 1999 at Hamilton, Ontario ~e/---<-- Nirnal V Dissanayake Vice Chairperson -