HomeMy WebLinkAbout1995-2109TILDEN98_10_19
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 TELEPHONEITELEPHONE (416) 326-1388
1OO,RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILEITELECOPfE (41(1) 326-1396
GSB # 2109/95,2110/95,2111195,2112/95
OPSEU 96D046, 96D047, 96D048, 96D049
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETILEMENT BOARD
BETWEEN
Ontario PublIc ServIce Employees Umon
(Ken Tilden)
Grievor
- and -
The Crown in RIght of Ontano
(Mimstry ofMumcIpal Affarrs and Housing)
Employer
EFORE Nimal V Dissanayake Vice-Chair
FOR THE Ahck Ryder, Q C
GRIEVOR Counsel
Ryder Wright Blarr & Doyle
Barristers & SolicItors
FOR THE LIane Brossard
EMPLOYER Counsel, Legal ServIces Branch
Management Board SecretarIat
HEARINGS July 9, November 26, December 12, 17, 1996,
April 8, 11,22, May 8, June 17,23, September 16,17,26,1997
2
DECISION
This decision is concerned with four related grievances filed by
Mr Kenneth Tilden ("Grievor") The grievor was first employed by the
employer on January 14th, 1974 as a Landscape Architect His position
was classified as Architect 3 (Atypical) and was excluded from the
.
bargaining unit As a result of a reorganization, in 1979 all Landscape
Architects, including the grievor, were brought into the bargaining
unit At that time his position changed to Regional Landscape
Architect, classified as Parks Planner 2 Following a grievance, his
position was reclassified in 1981 as Community Planner ("CP" ) 4
(Atypical) In 1984 he assumed a position at the Technical Support
Services Branch as Coordinator, Landscape Architectural Services, which
remained classified as CP 4 (Atypical) He subsequently grieved,
alleging that his position was improperly classified and sought
reclassification as CP 5 By decision dated June 20, 1990, (Decision
of Vice-Chair M Gorsky) the Grievance Settlement Board agreed that his
position was improperly classified as CP 4 (Atypical) but did not grant
the reclassification sought The Board concluded that his position did
not fit within the CP series at all, and issued a "Berry Order"
directing that the employer create a new classification for the grievor
On May 15, 1995 the grievor received surplus notice on the grounds
that his position had been abolished He therefore became entitled to
rights under article 24 (now article 20) of the collective agreement
Following the expiry of the six month notice period, he was laid off
effective November 15, 1995, on the basis that the employer had not been
able to identify a position to redeploy him pursuant to article 24
3
The four grievances before the Board are as follows
(A) a grievance dated November 10, 1995 alleging that the grievor's
position was abolished in bad faith and in violation of articles A and
24
(B) a grievance dated November 16, 1995 alleging that the employer
.
breached article 24 21 14 by failing to include a performance review as
part of the grievor's employee portfolio and thereby denied the grievor
an opportunity for placement in another position
(C) a grievance dated November 16, 1995 alleging (1 ) Improper
layoff (2) Failure to apply article 24 rights in a full and timely
manner (3) Denial of the right to bump into positions occupied by
employees with less seniority (4 ) Discrimination against the grievor
because of his union activities and his exercise of rights under the
collective agreement
(D) a grievance dated November 16, 1995 claiming that the grievor
was denied his right to a guaranteed job offer pursuant to article
24 17 1
On the second day of hearing union counsel advised that he would
not be relying on bad faith and discrimination as an independent cause
of action, but would be relying on that evidence only in support of the
allegation that the grievor's substantive rights under the collective
agreement were violated Therefore, the union has in effect abandoned
the grievance (A) above The allegation that the employer had
discriminated because of the grievor's union activity and exercise of
collective agreement rights was also not pursued during final
submissions In any event, the Board finds that the evidence before it
4
does not substantiate any discrimination on the grounds of a prohibited
ground nor any ill-will or bad faith on the part of the employer either
in its decision to abolish and declare the grievor's position surplus
or in the manner it applied the surplus and job security rights under
the collective agreement subsequently Therefore, this arbitration is
.
about whether the employer correctly applied the grievor's collective
agreement rights
Before the hearing into these grievances corrunenced, the Board
satisfied itself that the following incumbents whose employment may be
affected by the outcome of this proceeding received proper notice and
were accorded the opportunity to fully participate if they so wished
Laura Atkins, Seema Bakshi, Jane Brackley, Thelma Gee, Pamela King,
Brian Komoka, Darlene Mahyr-Richardson, Kirsten Mania, Nick Muneretto,
Patrick Roulston and Christopher Thompson
Some of the incumbents did not attend the hearings at all Others
were called to testify on behalf of the employer Some others attended
and participated on some days Ms Brackley was in attendance
throughout and participated fully
The hearing took 13 days to complete, starting on July 9, 1996 and
ending September 26, 1997 Subsequently the Board continued to receive
supplementary submissions from counsel by mail, the last of which was
received on December 12, 1997 I have considered all of that in
arriving at my conclusions
5
During final submissions, employer counsel conceded that the
employer had contravened article 24 21 14, by failing to include a
performance review in the grievor's portfolio However, the employer
contends that it was only a "technical breach", which had no impact
whatsoever on the grievor's right to be assigned or to displace into
a position
The grievor's formal education included a B A degree from the
Faculty of Arts and Sciences at Queens University in history, economics
and politics in 1969, and a Bachelor of Landscape Architecture from the
School of Landscape Architecture, University of Toronto l.n 1973
Following graduation as a Landscape Architect ( "LA") , he joined a
private sector LA firm in ottawa for one year In that period he worked
on the redevelopment of two family housing communities, making site
visits, doing drawings and attending meetings with tenants, consultants,
and contractors He also worked with LA consultants to assist them
complete two major site redevelopment housing projects in ontario
When the grievor joined the Ontario Public Service as a Regional
LA at the Ontario Housing corporation in January 1974, he became
responsible for most of Ontario outside Toronto, while the Senior LA Mr
Ois, had responsibility for all of the OHC housing units within Toronto
As Regional LA, the grievor reviewed plans for new OHC housing in
municipalities throughout ontario and performed other "line job"
functions of a LA in the course of providing LA design and site
development services to local housing authorities and branch offices
However, the grievor testified that after the Senior LA Mr ois left in
6
1984, the grievor gradually assumed many of the duties and
responsibilities previously performed by Mr ois, including the setting
and updating of standards and guidelines in LA
The grievor conceded that as Coordinator, LA services, he
primarily had a "policy role" as opposed to providing hands-on LA
services He testified, however, that at some point he was placed in
charge of a redevelopment project in Sudbury known as "The Ramball
Terrace", working directly under the Chair of the OHC, Ms Nancy smith
In this project the grievor had a dual role The first was to ensure
that all of the consultants working on the project adhered to policies,
standards and budgets set by the Sudbury local housing authority
Secondly, he was involved in assisting the OHC chair to develop an asset
management program with respect to all of the OHC units within Ontario
The union's position is that although the grievor's expertise was
as a LA and while he had held positions in that field, his knowledge and
experience was not limited to the LA field alone The union contends
that in order to effectively carry out his duties in the various
positions he held, the grievor had to, and did, have a broad knowledge
and gained experience in various areas relevant to public - non-profit
housing, including planning On that basis it is submitted that he had
the minimum qualifications to be assigned to a variety of vacant
positions, if necessary, with some retraining which he was entitled to
under the collective agreement Similarly it is submitted that with his
seniori ty, the grievor should have been entitled to displace junior
employees in a number of positions, for which he had the requisite
7
minimal qualifications Finally the union contends that the grievor was
entitled to a job offer guarantee under article 24 17
The employer's position is that the job offer guarantee provision
was not applicable in the circumstances of the grievor's layoff with
regard to assignment and displacement rights, the employer's primary
response is that, because the grievor's expertise and experience was in
a very narrow field, despite its best efforts no position could be found
for which the grievor was minimally qualified While the employer
recognized that it was unfortunate that an employee with some 21 years
of service had to be laid off, it was submitted that in the particular
circumstances the grievor did not have a right to be assigned to or to
displace into any position
The following provisions in article 24 are particularly relevant
to the issues in this case
ARTICLE 24 - JOB SECURITY
24 1 Where a lay-off may occur by reason of shortage of
work or funds or the abolition of a position or
other material change in organization, the
identification of a surplus employee in an
administrative district or unit, institution or
other such work area and the subsequent
assignment, displacement or lay-off shall be in
accordance with seniority subject to the
conditions set out in this Article
RETRAINING
24 4 1 The Employer agrees to establish a Ministry-
based Retraining Program for surplus employees
8
24 4 2 Retraining for surplus employees is intended to
facilitate placement of the employee in a
vacancy within the Ontario Public Service or to
improve his employment opportunities with
another employer
24 4 3 The Ministry will approve up to a maximum of
six (6) months of employment-related retraining
with pay and with no loss of credits for each
surplus employee This retraining will begin
early in the surplus period and consist of
- skills assessment, counselling job search
skills;
- job-related retraining in a classroom and/or
on-the-job
SALARY PARAMETERS
25 5 Salary parameters for the purposes of
assignment of an employee identified as surplus
shall be as follows
(a) during the first half of the surplus notice
period, the salary maximum of the vacancy is
not greater than three percent (3%) above nor
ten percent (10%) below the maximum salary of
his classification, and
(b) during the second half of the surplus notice
period, the salary maximum of the vacancy is
not greater than three percent (3%) above nor
twenty percent (20%) below the maximum salary
of his classification
REDEPLOYMENT
24 6 1 Where an employee is identified as surplus he
shall be assigned on the basis of his seniority
to a vacancy in his ministry within a forty
(40) kilometre radius of his headquarters
provided he is qualified to perform the work
and the vacancy is
- in the same class or position as the employee's
class or position;
9
- in a class or position in which the employee
has served during his current term of
continuous service; or
- another vacancy
24 6 2 with mutual consent, a surplus employee shall
be assigned to a vacancy in his ministry beyond
a forty (40) kilometre radius of his
headquarters provided he is qualified to
perform the work Relocation expenses shall be
paid in accordance with the provisions of the
Employer's policy
24 6 3 Where an employee has not been assigned in
accordance with sub-sections 24 6 1 or 24 6 2,
he shall be assigned on the basis of his
seniority to a vacancy in another ministry
within a forty (40 ) kilometre radius of his
headquarters provided he is qualified to
perform the work and the vacancy is
- in the same class or position as the employee's
class or position;
- in a class or position in which the employee
has served during his current term of
continuous service; or
- another vacancy
24 6 4 with mutual consent, a surplus employee who has
not been assigned in accordance with sub-
sections 24 61 1, 24 6 2, or 24 6 3 shall be
assigned to a vacancy in another ministry
beyond a forty ( 40) kilometre radius of his
headquarters provided he is qualified to
perform the work Relocation expenses shall be
paid in accordance with the provisions of the
Employer's policy
24 8 1 An employee who does not attend a placement
interview when requested by the Employer or who
does not accept an assignment in accordance
with sub-sections 24 6 1 or 24 6 3 shall be
10
laid off and the provisions of Sections 24 8 2,
24 9, and 24 13 shall not apply
24 8 2 Where an employee has not been assigned to a
vacancy in accordance with sub-sections 24 6 1,
24 6 2, 24 6 3, or 24 6 4 , he shall be subject
to lay-off in accordance with the following
applicable sections
DISPLACEMENT
24 9 1 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
(a) The Employer will identify the employee with
the least seniority in the same class in which
the surplus employee is presently working and
if such employee has less seniority than the
surplus employee, he will be displaced by the
surplus employee 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 is qualified to perform the work of
such employee;
(b) If no employee in the same class has less
seniority than the surplus employee, the
Employer will identify the employee in the
class in the same class series immediately
below the class in which the surplus employee
is presently working who has the least
seniority and if he has less seniority than the
surplus employee, he will be displaced by the
surplus employee 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 is qualified to perform the work of
such employee;
(c) Failing displacement under (a) or (b) the
Employer will revJ.ew the classes in the same
class series in descending order until a class
is found in which the employee with the least
11
seniority in the class has less seniority than
the surplus employee In that event such
employee will be displaced by the surplus
employee 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
is qualified to perform the work of such
employee;
.
( d) Notwithstanding the above, J.n 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 continuous service who have less
seniority than the surplus employee, the
surplus employee will displace the employee
with the least seniority in the class with the
highest salary 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 J.s in the same ministry and
within a forty (40 ) kilometre radius of the
headquarters of the surplus employee and
provided that the surplus employee is qualified
to perform the work of such employee
24 10 The employee must indicate in writing to the
Director of Human Resources his intention to
displace another employee as far in advance as
possible but not later than two (2) weeks in
advance of his date of lay-off If he does not
indicate his intent to displace another
employee within this period, he shall be deemed
to have opted to be laid off and the provisions
of section 24 13 shall not apply
24 13 1 Where a surplus employee has not been assigned
to a vacancy in accordance with section 24 6
and no displacement is possible under section
24 9 and the employee is within the two (2 )
week period prior to his date of lay-off, he
shall be assigned on a retraining basis to a
vacancy in his ministry within a forty ( 40)
kilometre radius of his headquarters, subject
to the following conditions
12
(a) Such assignments shall be made on the basis of
seniority;
(b) Such assignments shall be made during the two
(2) week period prior to the employee's date of
lay-off, where, based on information in its
records or as provided by the Union or the
surplus employee, the ministry determines that
the employee has transferable skills which
would enable him to meet the normal
requirements of the work of the vacancy within
a maximum retraining period of twenty-five (25)
days;
(c) Such assignments shall be limited to a class
which has a salary maximum no greater than the
maximum of the surplus employee's current class
and section 5 4 of Article 5 (Pay
Administration) shall not apply;
(d) Where a surplus employee is assigned to a
vacancy in accordance with 24 13 1, his date of
laY-Off shall be extended to accommodate the
retraining period, up to a maximum of twenty-
five (25) days;
(e) A surplus employee who has been assigned to a
vacancy in accordance with 24 13 1 shall have
no rights under Sections 24 6 or 24 9 following
his original date of laY-Off;
(f) If, at the end of the retraining period, the
surplus employee meets the normal requirements
of the vacancy to which he has been assigned,
he shall be confirmed in that vacancy,
(g) If, at the end of the retraining period, the
surplus employee does not meet the normal
requirements of the vacancy to which he has
been assigned, he shall be laid off without any
additional notice under Section 24 2
24 15 Where an employee has been identified as
surplus, reasonable time off with no loss of
pay and with no loss of credits shall be
granted to attend scheduled interviews for
13
employment opportunities, provided that the
time off does not unduly interfere with
operating requirements
JOB OFFER GUARANTEE - CONTRACTING OUT, DIVESTMENT, RELOCATION
24 17 1 effective January 1, 1992, employees whose jobs
become surplus as a result of contracting out;
divestment or comparable transfer of work from
the ontario Public Service to a Crown agency,
broader public sector, non-profit organization,
or the private sector; or relocation of an
operation will be guaranteed a job offer in
accordance with this Article
SALARY PARAMETERS
24 17 2 Salary parameters for the purposes of
assignment of an employee identified as surplus
shall be as follows
(a) for the first six ( 6) months after receiving
notice, the salary maximum of the vacancy is
not greater than three percent (3%) above nor
ten percent (10%) below the maximum salary of
his classification; and
(b) thereafter, the salary maximum of the vacancy
is not greater than three percent (3%) above
nor twenty percent (20% ) below the maximum
salary of his classification
JOB OFFER GUARANTEE
24 17 3 Where possible and practical, an employee with
entitlements in accordance with 24 17 1, shall
be offered a job within a forty (40) kilometre
radius of his headquarter provided that he is
qualified to perform the work
24 17 4 Where the Employer determines that a job offer
within a forty (40) kilometre radius of the
employee's headquarters is not possible and
practical, the Employer shall notify the
14
employee of the geographic radius within which
a job offer is practical
The evidence indicates that Ms Marcia Grimes, Senior Human
Resources Advisor with the Ministry, was responsible for administering
the surplus/job security provisions of the collective agreement with
.
respect to the grievor At the time he was surplused the grievor worked
in the OHC Support section of the Housing Operations Division In her
examination-in-chief, Ms Grimes testified that between May and October
of 1995, 225 bargaining unit employees in the Ministry received surplus
notices All of those employees were, however, either redeployed
through the process under article 24 or they took advantage of other
options such as early retirement The only exceptions were the grievor
and a Ms Nickoluk Even Ms Nickoluk was subsequently found a
temporary assignment enabling her to attain her 80 factor for early
retirement That left the grievor as the only employee in the Ministry,
who was laid off with no benefit under the collective agreement
Documentary evidence indicates that as of April 30, 1996 only four
employees in total were ultimately laid off in the whole OPS
Ms Grimes stated that in the redeployment process, 4 criteria were
considered (1) Seniority (2 ) Salary Parameters (3) Availability of
vacancy within 40 kilometres and ( 4) Entry level qualifications Ms
Grimes testified that even before the surplus notice was issued to the
grievor, with the involvement of the Staffing Review Committee, she
searched for job vacancies where the grlevor may be reassigned in
accordance with the 4 criteria
15
Ms Grimes admitted that she received notice in October 1995 from
the grievor that he desired to exercise his bumping rights During the
last two weeks of his 6 month notice period she searched for a bumping
opportunity for him, with the aid of a summary she had prepared
identifying all the positions the grievor had held at the Ministry Ms
.
Grimes testified that article 24 9 1 subsections a, b and c were not
applicable because the grievor was the only incumbent in the
classification of Coordinator Landscape Architecture, which had been
uniquely fashioned for him pursuant to a "Berry Order" She then turned
to subsection (c) , which she understood allowed the grievor to bump the
employee with least seniority in any other class series in which he had
served in the past The grievor had once been an Architect III, but
that classification no longer existed in the Ministry He had also been
a Community Planner 4 Atypical A number of Ministry employees held
positions in that classification Two were in unclassified positions
and therefore not subject to displacement Mr McElroy, who was at the
Markham Regional Office had already been declared surplus Mr Foley's
position was considered but he was outside 40 klms That left for
consideration the positions held by Ms Pam King and Ms Jane Brackley
However, Ms King's position was also declared surplus after the grievor
was laid off Therefore the focus turned to Ms Brackley, who held the
position of Community Development Officer (CDO) , classified as CP 4,
Atypical
Ms Grimes testified that in consultation with Ms Brackley's
manager Mr Farley, and the HR Advisor who was responsible for the area,
she determined the minimum qualifications for Ms Brackley's CDO
16
position She reviewed the grievor's job description and employee
portfolio as well as Ms Brackley's position specification She found
that Ms Brackley's job involved a significant amount of advocacy on
behalf of affordable housing and the ability to deal with communities
that opposed the location of affordable housing in their neighbourhood
.
During her testimony, Ms Grimes went through Ms Brackley's job
description and pointed to the key skills she had identified as
essential to be able to carry out this advocacy function They were,
the ability to find out about interest groups; to attend at the ontario
Municipal Board and negotiate in support of affordable housing in
specific communities; tact and diplomacy to deal with hostile and
emotionally charged communities, to initiate the resolution of the
planning process re rezoning etc ; negotiating skills to solicit
community acceptance of affordable housing; and ability to liaise with
community groups, rate-payers and politicians She concluded that the
major component of the CDO position was "the ability to advocate
affordable housing"
Ms Grimes testified that comparing the grievor's portfolio and
attached CV, she observed that he had been a LA from 1974 His
qualifications were as a LA providing hands-on LA duties including doing
feasibility studies, landscape designs etc She concluded that his
skills were all focussed specifically on LA site development, while the
COO job involved developing strategies for getting community acceptance
of affordable housing While the grievor had experience providing LA
services to non-profit and public housing, Ms Grimes explained that he
did that only after approval had been granted for the housing project
17
When asked what her final conclusion was, Ms Grimes replied "That Mr
Tilden's skills were focussed on all the components of LA as it related
to local housing authorities, whereas the CDO position required advocacy
and negotiating skills and the ability to get approval for affordable
housing in a community Therefore, he did not meet the minimum
.
qualifications required"
Ms Grimes next turned to CP 3 positions, which had a consolidated
job description applicable province wide From the documentation, she
noted that the grievor's involvement J.n the planning process was
specifically geared to LA and it occurred after approval for the housing
had been granted He had no involvement in the approval process for an
official plan When asked what her conclusion was as to whether the
grievor had minimum qualifications for a CP 3 position, she replied
"Because a CP 3 makes authoritative decisions relating to official plans
by analysing planning issues in accordance with the Planning Act, it was
felt that Mr Tilden's background did not demonstrate those skills"
She testified that Mr Thompson's CP 3 position additionally required
a knowledge of the Rental Housing Protection Program and that she "could
find no evidence in the documentation" that Mr Tilden had that
experience
With regard to CP 2 positions, Ms Grimes' evidence was that there
were no incumbents for bumping Of the two employees, Ms C Wong was
unclassified, while Mr P Kakaletris was actually a CP 3 under-filling
at the CP 2 level
18
Ms Grimes testified that she considered a possible bumping for the
grievor at the CP 1 entry level, a position held by Mr Seema Bakshi
She determined that the grievor did not have minimum qualifications for
this either She explained that the CP 1 position required a
.
fundamental knowledge of the planning system and the Planning Act and
that "the documentation did not disclose any evidence that the grievor
had that knowledge" While the grievor had experience relating to
rezoning for parking and drainage etc , those occurred after the
planning process was completed and approval obtained, which according
to Ms Grimes was not the same Ms Grimes stated that the MBS was
responsible for searching for displacement opportunities for the grievor
outside his home ministry For that purpose she sent a copy of the
grievor's portfolio and surplus notice to MBS on July 12, 1995
Ms Grimes testified under cross-examination that the search for a
vacancy for assignment of a surplus employee was done in two stages
The first stage was a computer match done by MBS The evidence
indicates that this process resulted in a "match" for the grievor of
some vacancies at the Ministry of Environment However Ms Sally
Augustine, Acting Manager of Human Resources, sought clarification from
the grievor about his experience in environmental assessment and
subsequently MBS determined that the grievor did not meet the minimum
qualifications for the matched positions
Ms Grimes conceded that under the applicable collective agreement,
it was mandatory that a performance review be included as part of an
employee portfolio Yet she expressed her view, "1 don't think it has
19
a major significance" Mr J Sanderson, who had been the grievor's
manager for approximately 2 years immediately preceding his layoff had
refused to do a performance review claiming that he was unable to
comment on the grievor's performance She testified that she asked Mr
Schafft to find another manager to do a performance review and reminded
.
him several times of its importance In the meantime the portfolio had
gone to MBS without a performance review and MBS did not complain or
object Finally Mr Schafft got Mr John Sloan to do a performance
review for the grievor but it was not received until well after the
grievor's layoff on November 15, 1995 When union counsel suggested
that an inference may be drawn by ministries with vacancies that the
grievor's managers had been unwilling to provide a performance review
for the grievor because they did not think highly of him, Ms Grimes'
response was that she personally would not have drawn such an inference
I have carefully reviewed the voluminous evidence and extensive
submissions of counsel in each of the areas in dispute However, I do
not consider it necessary or useful to review that in detail or to
determine each and every alleged defect in the manner the employer
administered the collective agreement What is critical is whether any
defect or breach occurred which denied to the grievor the job security
that he was entitled to in the circumstances In this regard I agree
with employer counsel that if the grievor was not qualified at the
required level to be assigned to a vacancy or to displace into a
position held by an employee with less seniority, the mere fact that
there were defects and shortcomings in the process carried out on part
of the employer does not entitle the grievor to any redress In other
20
words, the union must establish on a balance of probabilities not only
that defects occurred but also that if not for the defects the grievor
would have not been surplused and/or laid-off
Based on all of the evidence I have concluded that the grievor's
.
article 24 1 rights were breached in two separate instances - where but
for the breaches, the grievor would have had a job Prior to a review
of the specifics, it is appropriate to make the following observations
The employer has conceded that it was a mandatory requirement under the
governing collective agreement that the employee portfolio prepared for
the purpose of administering rights under article 24 contain a
performance review The portfolio used when applying article 24 to the
grievor did not contain that mandatory part and the employer
acknowledged that thereby the collective agreement was contravened
However, during her submissions, employer counsel characterized it as
a mere technical breach with no consequence or significance The
employer's position was that the absence of the performance review did
not in anyway hamper the search it carried out for an assignment or
displacement opportunity for the grievor, because it had the benefit of
the position specification and the rest of the portfolio
In the Board's view, this is very telling and demonstrative of the
basic flaw in the employer's approach to administration of the job
security provisions negotiated on behalf of surplus employees That is,
the failure to distinguish between duties the grievor has actually
performed and duties he may be capable of performing This same flaw
was indicated by the strong emphasis placed by the employer on the fact
21
that the Board had found that the grievor's position did not fit within
the Community Planner Series In a classification case, the issue for
the Board is to determine the appropriateness of the classification in
view of the actual duties performed by the employee concerned The
Board is not concerned about what the employee mayor may not be capable
.
of performing beyond what he is required by his current job Thus, the
fact that the Board finds that the actual duties of an employee do not
fit within a particular classification, does not also mean that the
employee has no skill and ability to perform the duties of that
classification They are two different issues Similarly, what the
position specification and the employment history in a portfolio
discloses is what the employee has actually done in his prior positions
It does not necessarily disclose the potential scope of the employee's
skill and ability
Throughout Ms Grimes testimony it was evident that she considered
that the grievor was unable to perform a duty unless the documentation
she had in her possession established that he had actually performed
the exact duty in the past Her process was to compare position
specifications If a particular function in the grievor's position
specification and the specification of the position targeted for
assignment or displacement were not identical, the conclusion was that
the grievor did not have the ability to do the duty in the targeted
position The philosophy behind this "stencil approach" to a job
search appears to be the belief that "if you have not done it - you are
not capable of doing it" This in my view is a false premise Article
24 21 14 very clearly states that a portfolio "will include a
-
22
performance review" among other things The Board cannot accept that
the parties would stipulate that a performance review is a mandatory
part of a portfolio (and the employer has conceded this to be the case),
if it is of no use or significance in the job search Besides, in light
of the distinction the Board has highlighted above between duties an
.
employee has actually performed and what that employee may be capable
of performing, the functional purpose of a performance review becomes
evident The performance review sets out the key strengths, interests
and talents of an employee It sheds light on the employee's
versatility and potential, his ability to learn quickly, his initiative
and determination etc or the absence of any of the above These are
all factors which assist in assessing whether an employee (with or
without some familiarization/training) may be able to adequately perform
a particular function, even though he may not have performed that
identical function in the past The people searching for a job on
behalf of the grievor did not have that benefit and therefore could not
have assessed the potential ability of the grievor
The evidence indicates that the employer did not in any way turn its
mind to the transferability of the grievor's experience to duties of
targeted positions The employer had the option of interviewing the
grievor to give him an opportunity to explain how his existing skill and
past experience would assist in performing the duties of a new and
different position The employer did not take that opportunity Ms
Grimes repeatedly explained her decisions by stating to the effect that
the documentation in front of her did not demonstrate that the grievor
had done a particular duty
23
The adverse impact of adopting a "stencil approach" of matching
position specifications is greatly increased when the person undertaking
the exercise is not knowledgeable in the profession under review Ms
Grimes was not knowledgeable in LA or planning She was a human
resources specialist In passing she mentioned that she had input from
.
supervisors But no information was provided as to what that input was
For example, Ms Grimes admitted that the grievor, as a LA, had to have
a knowledge of the Planning Act, but only what was required from a LA
point of view She opined that that was different from the "in-depth
knowledge" required by a planner However, when union counsel asked
what knowledge a planner required was different from what was required
from a LA, she responded that she was not a planner and could not answer
that question The difficulty with Ms Grimes' approach is this It
may be the case that as a LA, the grievor did not have to have a
knowledge of certain aspects of the Act However, that is not the same
as saying that he in fact did not have knowledge of those aspects of the
Act Before deciding whether the grievor had minimal qualifications for
a position it was incumbent on the employer to ascertain whether the
grievor in fact had that knowledge, even though it was not a mandatory
requirement of his job, and whether he could have readily acquired that
knowledge in view of his general familiarity with planning and the
Planning Act through his involvement in affordable housing for a period
of over 20 years
The employer administering the job security rights has a positive
obligation to ascertain whether a surplus employee is "qualified to
perform the work" It is trite law that a surplus employee does not
24
have to compete for the job to prove that he is qualified to perform the
job All he must show is that he has minimum competence in all
essential aspects of the job in question (See, Re Loebel, 131/82
(Verity) In deciding whether the surplus employee met this threshold
standard, it is not adequate for the employer to put the burden on the
.
employee alone to feed the relevant information to it It has a
positive du.ty to make all reasonable efforts to ascertain the employee's
qualifications Ms Grimes admitted under cross-examination that the
employer had an obligation "to market" a surplus employee's
qualifications It goes without saying that the employer must first
ascertain what the true qualifications are, before it will be in a
position to market them
In Re Tsiang, 1055/85 (Kirkwood) the Board addressed the nature of
the employer's obligation under article 24 to make all reasonable
efforts to ascertain the qualifications of a surplus employee At p
6 the Board stated
As the employer under this collective agreement is
obligated to assign the employee if the employee is qualified,
the duty falling the employer assigning a surplus employee is
greater than the duty falling the employer who is selecting the
candidate which the employer considers the best for a job when
there is competition between the applicants There J.s an
obligation upon the employer to protect the employee who has
lost their job through no fault of their own and to be
knowledgeable about the employee's qualifications and to make
all reasonable efforts to ascertain the employee's
qualifications This duty on the employer was confirmed in
OPSEU (D Hill and D Campbell) and The Crown J.n Right of
Ontario (Ministry of Labour) Oct 12/84 (#492/83 and 493/83)
R J Roberts In that case the interviewers made little inquiry
about the grievor and relied on their interview with the
grievors Even though the grievors would have had an
opportunity to advise the interviewers of their qualifications
in their interviews, the Board held that as the interviewers had
made no reference to their personnel files, nor made any contact
25
with previous supervisors' references, they were not prepared to
canvass the grievor's qualifications properly
(Emphasis added)
In Re Hill and Campbell, (supra) at p 15, the Board stated
.
The grievors were surplus employees and were entitled to be
evaluated as such In making such an evaluation it would seem
appropriate to expect the interviewers to have made every
reasonable effort to ensure that they had before them all
relevant information bearing upon the qualifications of the
grievors to perform the work Because the evaluation was
conducted within the context of the job security provisions of
Article 24 of the collective agreement, it does not seem
unreasonable to expect interviewers to have exercised a higher
degree of care in this regard than in the case of a competition
under Article 4 An application under article 24 of the
collective agreement involves a very serious determination It
is not a case of promoting a government employee who already has
a job It is the case of finding a job for a government
employee who, through no fault of his or her own, no longer has
one
In Re Hill and Campbell, the employer interviewed the grievors and
thus they did get an opportunity to advise the interviewers of their
qualifications Yet because the interviewers did not review the
grievors' personnel files or previous supervisor's references, the Board
concluded that the employer failed to ascertain the grievors'
qualifications properly In contrast, in the present case the employer
did not even interview the grievor All that the employer did was
compare the employment history and the position specification of the
grievor with the position specification of the targeted position There
is no evidence whatsoever that anyone at anytime considered whether the
grievor's experience and knowledge, though somewhat different, were
transferable and adoptable to the requirements of the targeted position
26
In this regard consideration must also be given to article 24 4
which provides for retraining rights In article 24 4 1 the employer
agrees to establish a ministry based retraining program for surplus
employees The purpose of retraining is stated in article 24 4 2 to be
two-fold, first "to facilitate placement of the employee in a vacancy
within the Ontario Public Service" or second, "to improve his employment
opportunities with another employer" Article 24 4 3 states that the
employer will approve up to six months of employment related retraining
with pay, including job-related retraining in classroom and/or on the
job These provisions indicate the intention of the parties that even
if the surplus employee did not possess the required qualifications, the
employer must approve any retraining, in class or on the job, which will
allow the employee to upgrade his qualifications to the required level
For reasons that will be set out, the Board finds that the employer did
not meet the letter or the spirit of the retraining obligations
The Board concludes that the employer's fundamental failure to make
reasonable efforts to ascertain the grievor's actual qualifications and
ability and to consider retraining, denied job security rights which the
grievor would have otherwise been entitled to The Board now turns to
those specific areas
The right to be assigned to a vacancy at the ontario Realty Corporation
The grievor testified that after he had received his surplus notice
in May of 1995, he saw an advertisement in the "Topical" dated June 9,
1995 for 2 positions of Senior Portfolio Consultants (classified at
27
community Planner 4 ) at the Ontario Realty Corporation He felt that
he had the required qualifications for the advertized positions He
confirmed this by discussing the duties of the position with an employee
he knew, who had occupied one of the advertized positions on a
secondment He expressed his interest ~n the jobs to Ms Kendra
.
Kowolik, the Human Resources Advisor assigned to assist him since Ms
Kowolik did not take any action, on July 5, 1995 the grievor faxed a
photocopy of the advertisement to Ms Grimes, with a covering note
stating "Should I not be interviewed for assignment to this position
as per the collective agreement " Subsequently Ms Grimes informed the
grievor that the posting had been "cancelled or frozen" However,
shortly before the grievor was laid-off in November 1995, the grievor
noticed in the new OPS telephone directory that two names were listed
as occupants of the positions that had been advertized He ascertained
that contrary to the information he received from Ms Grimes the
vacancies had in fact been filled The grievor met with the ADM Ms
Shirley Hoy and explained to her what had occurred Nothing came out
of that He also raised the matter with Ms Sally Augustine, Acting
Manager Human Resources Services
The evidence indicates that contrary to the information provided to
the grievor, the competition for the 2 positions in question proceeded
as scheduled Interviews were held and the two successful candidates
were notified by letters dated July 21, 1995 with start dates of July
31, 1995 One of the successful candidates was Mr Patrick Ralston -
an employee of the Ministry of Housing
28
Ms Grimes testified that when she received the grievor's fax
indicating his interest in the advertized positions, she brought it to
the attention of the Management Board Secretariat (MBS) and requested
that the grievor be considered for the positions According to Ms
Grimes, MBS agreed to do so, but subsequently advised that the positions
.
will not be filled - that the competition process had been stopped
After the grievor discovered that the competition had in fact
proceeded and the positions filled, he complained to a number of persons
in management including Ms Augustine In response, Ms Augustine wrote
the following memorandum dated December 8, 1995 to MBS
In the June 9, 1995 edition of Topical, two positions for Senior
Portfolio Consultants, (community Planner 4) were advertised as
permanent vacancies in the ontario Realty corporation,
Management Board Secretariat
Mr Ken Tilden, a surplus employee of our ministry, identified
the posting on July 5, 1995 and brought it to our attention We
called Corporate placement on his behalf to obtain priority
consideration for these vacancies
Corporate Placement notified us that Management Board
Secretariat had placed the vacancies on hold, therefore our
employee would not be considered for a match at that time
Subsequently, I understand that the competition resumed and
other candidates who were not surplus were successful in
securing these two positions
Mr Tilden was laid off by the ministry as of November 15, 1995
and has filed several grievances In order to respond to Mr
Tilden's grievances with respect to why he was not given
priority consideration, we will require the details on the
disposition of these vacancies and in particular, why Mr Tilden
was not matched initially
29
Please investigate what transpired with these vacancies and
provide us with the specifics as soon as possible, as this
information 1.S necessary for the ministry in preparing our
response
On December 22, 1995, Mr Terry Forget, MBS Acting Manager of
.
Corporate Services replied to Ms Augustine as follows
I am writing in response to your memo dated December 8, 1995,
regarding Competition #ORC 11/95, Senior Portfolio Consultant
Ms Kendra Kowolik called Corporate Placement Services on July
12, 1995 to ask us to consider Mr Tilden for these vacancies
Following our normal practice, we advised Management Board
Secretariat, in writing, that they were not to staff the
position until further notice We were then informed these
vacancies were affected by a ministry-wide staffing freeze An
exemption from the freeze was ultimately granted; however, we
were not informed about it The Ministry did extend offers of
employment to other individuals
It is important to note that Corporate Placement Services had
determined Ken Tilden did not meet the minimum qualifications
for the Senior Portfolio Consultant's job and would not have
been matched to these vacancies even if they were available
I understand Linda Wendel discussed Mr Tilden's redeployment-
related complaints with you If he does lodge a grievance on
this particular issue, please forward it to us for reply Since
Corporate Placement Services is responsible for inter-ministry
assignments, we are in the best position to address complaints
of this nature
I trust this information is satisfactory Should you require
further assistance, please call me at 325-1428
The evidence is unchallenged and uncontradicted in two significant
aspects First, there is no question that for whatever reasons, the
employer's "system" failed to identify the aRC vacancies that existed
for possible assignment of the grievor The employer should have on its
30
own identified the vacancies and given priority consideration to
placement of the surplus employee It did not happen The employer had
the opportunity to get back on track when the grievor brought to its
attention that he should be considered for the vacancies Unfortunately
however, again something went terribly wrong, although it is unclear
.
what happened Mr Forget's letter suggests that a ministry-wide freeze
had been "imposed on competitions and that subsequently the ORC
competitions had been granted an exemption without MBS being informed
However, the employer was unable to produce any document indicating any
freeze or delay in the competition process On the contrary the
documentation suggests that the competitions proceeded normally In
view of this, the union expressed its suspicion that there was in fact
no freeze and that the employer simply proceeded to fill the vacancies
without giving any consideration to the grievor
The employer does not deny that here (as with the failure to prepare
a performance review as part of the employee portfolio) it had failed
to fulfill its obligation under the collective agreement When a
vacancy exists, the employer has to give priority consideration to the
surplus employee Ms Augustine acknowledges that obligation in her
memorandum of December 8, 1995 Yet, the vacancies were filled with no
consideration given at all to the surplus employee Despite everything
that went wrong, however, the defence of the employer (as with the
absence of a performance review) J.s that its failure was without
significance, because even it had given priority consideration to the
grievor as it was obligated to do, the grievor would have been found to
be not minimally qualified for the positions
31
In this regard, it is to be noted that at the time Mr Forget wrote
his response to Ms Augustine on December 22, 1995 he had concluded that
"Corporate Placement Services has determined that Ken Tilden did not
meet the minimum qualifications for the Senior Portfolio Consultant's
job and would not have been matched to these vacancies even if they were
.
available" It is clear that by this time the vacancies were not
available because they had been already filled Mr Forget testified
as to how and why he concluded that the grievor would not have possessed
the minimal qualifications, had he been given due consideration
Mr Forget testified in-chief that the primary function of the MBS
Corporate Placement Services was to "deliver on the job security of
surplus employees and administer article 24" Mr Forget stated that
generally the MBS receives the portfolio of a surplus employee between
2 to 3 weeks after the date of issuance of the surplus notice The
grievor's portfolio should have been received approximately 2 to 3 weeks
after May 15, 1995 However, in the grievor's case the portfolio came
in parts and MBS did not have enough information to commence a search
until July 12, 1995 Even then the portfolio was incomplete in that a
mandatory component, the performance review was not included Mr
Forget admitted that the job search for the grievor was commenced later
than normal However, he testified that he concluded after the fact
that the grievor had not missed any job opportunities as a result He
did this by doing a "cleared vacancy match report" to see whether any
jobs with minimal qualifications which the grievor could have
potentially met had gone through the system since May 15, 1995 - the day
of his surplus notice Since the report did not disclose any such
32
posi tion, Mr Forget was convinced that even if the commencement of a
job search for the grievor had not been delayed, no suitable vacancy for
him would have been identified
Under cross-examination Mr Forget testified that after MBS was
4
notified that the grievor had brought to the employer's attention that
he had a right to be considered for assignment to one of the ORC
vacancies, a Human Resources Consultant, Ms Chantel Gagnon was assigned
to assess the grievor's qualifications vis-a-vis the requirements of the
ORC positions Rather than do the computer matching as usual, it was
decided that a manual analysis ought to be done because the surplus
employee himself had identified the vacancy Using the grievor's
portfolio and the job information package for the vacancies, Ms Gagnon
was to do an initial assessment of the grievor's qualifications
However, Ms Gagnon could not proceed because she found that two pages
of the portfolio were "missing" Those pages were subsequently obtained
and Ms Gagnon did her assessment Mr Forget testified that based on
that assessment it was decided that the grievor "met the comparison
test" He agreed that in light of that, it was safe to assume that the
grievor would have attained a computer match had one been done Mr
Forget testified however, that the same day July 12, 1995, he was
advised that the Director of Human Resources MBS had issued a directive
announcing a "freeze" on all competitions within the MBS, including the
ORC Therefore, nothing further was undertaken on behalf of the grievor
with regard to the ORC vacancies The Ministry was advised that "there
may be a surplus employee who may be referred" and a request was made
that the vacancies be not cleared for filling by competition However,
33
unbeknownst to Corporate Placement Services, an exemption was granted
to clear the two aRC vacancies for filling and the competition
proceeded Mr Forget explained that "We had done our job" but that
"they proceeded with the competition without informing us" When
counsel asked "so they ignored what you said?", Mr Forget responded
.
"yes or the message was not communicated"
There can be no doubt whatsoever that the grievor did not get any
consideration, let alone priority consideration, during the process that
led to the filling of the two aRC positions It was Mr Forget's
evidence that after the positions were filled and the vacancies were no
longer available, and after the employer had realized that it had failed
to give priority consideration to a surplus employee as required by the
collective agreement, a consultant went through the exercise of
assessing whether the grievor would have been eligible for placement if
he had received priority consideration When union counsel suggested
that by then it was too late to correct the error, Mr Forget said "no
We could have still exerted pressure on the Ministry" Counsel asked
"Exert pressure to revoke the appointments?" Mr Forget replied "NO
We would have taken a different tact - to see if there was another
vacancy for Mr Tilden by saying that there may be a grievance filed as
a result"
The employer simply did not give any consideration to the assignment
of the grievor to the aRC vacancies pursuant to article 24 6 1 If the
after-the-fact assessment had led to a conclusion by the employer that
the grievor should have been assigned to one of the vacancies, the
34
employer would have faced quite a dilemma because the vacancies no
longer existed As Mr Forget conceded the appointments would not have
been revoked His suggested tactic of pressuring the Ministry to find
another vacancy for the grievor is baffling because there was always an
obligation on the employer to seek out any possible vacancy that meets
~
the requirements of article 24 6 1 To say the least, the exercise
undertaken by Mr Forget's office after the fact gives the perception
of a self-serving attempt at damage control
Quite apart from that problem with the process, on the whole of the
evidence the Board is satisfied that even the conclusion reached by the
employer after the fact was not reasonable nor correct I will not
review each area in which the grievor's qualifications were found to be
lacking What is clear 1S that Mr Forget and his consultant also
followed the same flawed approach to assessment of qualifications
followed by Ms Grimes, i e merely comparing the written words in the
job requirements of the vacant position with the written description of
the duties performed by the grievor No assessment was ever made of the
transferability of the grievor's qualifications and experience to the
job requirements of the vacant position, particularly considering that
the grievor had entitlement to training to upgrade his qualifications
to qualify for the vacancy The evidence indicates that without reason
or justification negative assumptions were made with regard to the
grievor's knowledge and ability without inquiry, the narrowest
possible interpretation was given to his experience To illustrate,
during his examination-in-chief Mr Forget testified that the material
reviewed indicated that the grievor "did not have a knowledge of the
35
Planning Act, the Environment Protection Act and related legislation"
During cross-examination, union counsel asked him whether that is his
evidence His response was "I may have over-stated it But one has a
sense that his knowledge is strictly about landscape architecture and
nothing else The ORC jobs involve aspects of legislation other than
~
landscape architecture" Counsel put to Mr Forget, the grievor's
experience and involvement in land use planning and the Planning Act and
asked what aspects of the Act the grievor would not be involved in as
opposed to a planner Mr Forget replied that he did not know He then
agreed that he did not know what parts of the Act the grievor was or
was not familiar with The difficulty is, article 24 does not allow the
employer to make decisions about a surplus employee's right to a
livelihood based on intuition It is an extremely serious decision
which must be made upon a consideration of all of the relevant
information, which must include a consideration of the transferability
or adaptability of the employee's skills and experience
with regard to training the evidence is that after he was declared
surplus, the grievor requested that he be allowed to take a Real Estate
Finance Course at York University but was denied by the consultant Ms
Kendra Kowolik Ms Kowolik was not called to testify as to the reason
why the course was denied The evidence before the Board establishes
that while that course by itself may not have qualified anyone for the
ORC vacancies, with his other qualifications and experience the
grievor's chances of qualifying for one of the ORC vacancies would
definitely have been enhanced if he had that course
36
On the basis of all of the evidence the Board concludes that the
grievor, with his past experience and his qualifications, and with the
training that he was entitled to together with a reasonable period of
orientation, had the minimal ability to perform the essential duties of
the ORC position Therefore by failing to assign the grievor to one of
the two vacancies that existed, the employer contravened article 24 6 1
Displacement to a Community Planner I position
The CP I class definition states that it covers "entry level
positions performing elementary community planning work under close
supervision " A characteristic of this class standard is that an
incumbent works under supervision, works with more senior partners and
plays a role of assisting as opposed to working independently The
class standard also anticipates that there is opportunity to learn on
the job For example it is stated that "As part of the training they
assist" in a number of functions Then the final paragraph of the class
definition states "As experience is gained they will assume planning
responsibility for small projects of limited complexity, exercising
initiative and carrying the assignment through to completion under
general supervision "
The qualifications for CP 1 are listed as follows
1 A degree from a university of recognized
standing, preferably in Planning, economics,
Geography, Sociology Engineering or
Architecture; or grade 12 education plus a
minimum of found year's acceptable experience
in town planning or in an acceptable related
field
37
2 Some familiarity with municipal government
organization and administration
3 Keen powers of perception and analysis; tact,
good judgement, personal suitability
~
Item one above is clearly satisfied by the grievor because he had
not one but two degrees from universities of recognized standing, one
degree being in one of the preferred areas, namely architecture He
graduated in 1969 with a bachelors degree from the Faculty of Arts and
Sciences at Queens University in History, Economics and Politics, and
a bachelors degree in Landscape Architecture in 1973 in Landscape
Architecture from the University of Toronto
Ms Grimes, during her examination-in-chief testified that she
considered the possibility of the grievor displacing the CP I position
held by a junior employee Seema Bakshi She stated that her decision
was that the grievor lacked minimal qualifications for the position
because the position "required a knowledge of the planning system,
planning legislation and policies", and the material she reviewed did
not disclose that the grievor had "the fundamental knowledge of the
planning system required" When employer counsel asked why the
grievor's extensive experience was not sufficient considering that the
position was at entry level, Ms Grimes responded "His experience had
focussed primarily on landscape architecture for local housing
authorities The material did not demonstrate any knowledge or
experience in using the planning system or the Planning Act, which are
fundamental requirements"
38
Under cross-examination Ms Grimes initially took the stand that if
the grievor had acquired a knowledge of the planning system in a job
other than as a community planner that was not acceptable However
subsequently she changed her position and agreed that if a fundamental
knowledge was acquired in any capacity that would be sufficient Then
~
counsel asked whether she was saying that with over 20 years experience
as a landscape architect, the grievor did not have a fundamental
knowledge of the ontario Planning System, and she replied that in her
view, the grievor had no knowledge of the ontario Planning System as it
relates to community planning Then counsel asked how the planning
system as it relates to community planning was different from the system
as it relates to landscape architecture - whether it was not the same
Ms Grimes responded that she was not a planner and was unable to get
into those distinctions, that she came to her conclusion by comparing
job specifications Subsequently following a lengthy cross-examination
she accepted that there was an overlap in the area of planning between
the duties of a planner and the duties of landscape architect
Ms patricia Boeckner, the Manager of the Provincial Planning
Services Branch was called to testify by the employer That branch had
the responsibility for all approvals under the Planning Act During her
examination-in-chief she was asked what skills were required for an
entry level CP I position She replied, "A basic background in
planning That is, an understanding of basic principles and techniques
and some experience from a summer job, co-op program or volunteer work
A general understanding of the Act and the ontario Planning System, some
organizational and analytical skills and some pretty good report writing
39
skills" Counsel asked her to review the grievor's portfolio and asked
"Doesn't it include some experience in planning?" She replied that she
would not call it planning experience
Under cross-examination counsel pointed out that the grievor had
been in charge of a community re-development project at Ramball Terrace
in Sudbury which included several buildings, 507 units and a property
of several acres and suggested that the grievor would need to have a
planning knowledge at least to the level expected from a CP I to be able
to do that She replied that was not necessarily so because a re-
development project was the tail-end of a planning project When
counsel reviewed the planning duties the grievor carried out at Ramball
Terrace and suggested that he had to know more about planning than what
a summer student may learn, Ms Boeckner stated "I don't diminish the
skills Mr Tilden may have required All I say is it's a different kind
of work" When counsel asked what a summer student would learn about
planning as compared to the planning knowledge the grievor would acquire
over a period of over 20 years in re-development, Ms Boeckner replied
that she did not know what planning knowledge the grievor had - that she
was only going by the portfolio
It is also in evidence that as a result of the passing of Bill 163
in 1995 and Bill 20 in 1996, a number of policies relating to planning
changed Ms Boeckner testified that since 1995 there were significant
changes That required the upgrading of the staff's knowledge Asked
how the upgrading was done, she replied "Through quite a bit of
training" Union counsel asked how many days of training was provided
40
since 1995 and she responded "I don't know Its quite a bit, spread
over 2 years and we are still at it "
On a review of the evidence there can be no doubt that in his
~
capacity as a LA, the grievor's duties required a knowledge and use of
the Planning Act and the ontario Planning System The employer
discounted that knowledge and experience on the basis that there was a
difference between the planning knowledge and experience acquired by a
LA and that of a community planner Yet none of the employer witnesses
were able to point out what that difference was The CP I position is
an entry level position The incumbents do not make independent
decisions They assist others and work under supervision until they
gain adequate experience At that point they are expected to assume
planning responsibility for small projects of limited complexity Even
then they work under general supervision This J..S the expectation as
set out in the CP I class definition The limited nature of the
expertise expected is demonstrated by the employer's own evidence that
the necessary knowledge can be acquired through a summer job, a co-op
program or volunteer work in a municipal office
The Board is convinced that the grievor's experience in planning
over more than 20 years gives him the minimal qualifications required
to displace into a CP I position Had he been allowed to bump in 1995
he would have had the benefit of the extensive retraining that other
staff received Given that the grievor was generally a competent
employee and had over 20 years experience as a LA which constantly
involved him in planning issues, the grievor would have been able to
41
gain the necessary experience and assume more responsibility in due
course as contemplated by the class standard
Summary
In support of the grievance the union targeted a number of positions
in different classifications, as positions the grievor had entitlement
to be either assigned to or displace into Having reviewed the evidence
the Board has concluded that
(1) The grievor was entitled to have been assigned to one of the
ORC vacancies which were filled through a competition
(2) The grievor had the qualifications and was entitled to displace
the incumbent of a CP I position, who had less seniority than the
grievor
By failing to accord these entitlements to the grievor, the employer
contravened the collective agreement
Remedy
The evidence is that under the redeployment process under article
20, the employer first exhausted any assignment opportunities before
turning to consider displacement rights Therefore, had the employer
complied with the collective agreement, the grievor would have been
assigned to one of the ORC position Therefore the appropriate remedy
is to direct that the employer appoint the grievor to that position
retroactively to the time when he should have been assigned and to
compensate him for all losses The Board so directs
42
Of course, given the passage of time and the restructuring that has
gone on within the ministry in that time, it is open to the parties, if
-
they can so agree, to devise a remedy of their own as an alternative to
the remedy ordered by the Board
The Board remains seized with jurisdiction in the event the parties
have any disagreement relating to the remedy
Dated this 19th day of October 1998 at Hamilton, ontario
~e7---'--
Nimal V Dissanayake
Vice-Chair
,