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HomeMy WebLinkAbout1996-1298BAZINET98_04_14 -- - ~ 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 1Z6 TELEPHONE/TELEPHONE (416) 326-1388 18O,RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 1298/96 OPSEU # 96D892 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Bazmet) Grievor - and - The Crown m Right of Ontano (Mimstry of EnvIronment and Energy) Employer BEFORE L. Mikus Vice-Chair FOR THE E, Holmes UNION Counsel Ryder Wnght BlaIr & Doyle Bamsters & SoliCitors FOR THE D Strang EMPLOYER Counsel Legal ServIces Branch Management Board Secretanat HEARING June 23, 1997 August 20, 21, 1997 October 20, 28, 1997 - ~ I ~ 1 The gnevor, Mr DanIel Bazmet, gneves that he was Improperly laid off. In May of 1996 he was advised that hIS E05 posItIOn as a Waste Management Co-ordmator wIth the Mimstry of , EnvIronment and Energy (Heremafter referred to as "MOEE") was bemg surplused. He was reassIgned to the posItIOn of Semor EnVIronmental Officer m abatement WhICh IS an E04 posItIon. He gneves that there was an E05 posItIOn available m the InvestIgatIOn and Enforcement Branch of the Mimstry (Heremafter referred to as "IEB") wmch he had the mIrnmum qualIficatIOns to perform. The mcumbent, Nancy Johnson, has less semonty than the gnevor and was provIded wIth notIce of these hearmgs. i I The Umon took the posItIon that pursuant to ArtIcle 20 4 1 (a), If thIS Board should find that the Employer IS m breach of the CollectIve Agreement, It can and should order that the gnevor be placed m the posItIon WIth full retroactIvIty and benefits. It also asks the Board to order that the award be grossed up to place the gnevor m the posItIOn he would have been m but for the breach. Mr Strang, counsel for the Mimstry, took the pOSItIOn that the gnevor dId not possess the necessary qualIficatIOns for the Job he claims and asked that the gnevance be dIsmIssed. He explamed that before 1980 vanous mImstnes had theIr own speclalmveshgatIOn unItS WhIch were charged WIth the responsibilIty of mvestIgatIOn and enforcement. In the mId 1980's all of those special mvestIgatIOn umts were replaced WIth the InvestIgatIOn and Enforcement Branch whose responsibIlIty It IS to determme whether there has been a breach of an act or regulatIOn and, If so, whether that breach warrants prosecutIOn. If an mvestIgatIOn dIscovered that there IS reasonable and probable grounds for prosecutIOn It IS theIr responsibIlIty to aSSIst m the actual prosecutIon. Mr Strang likened theIr - . ~ 2 dutIes to those of drug enforcement umts wIthm polIce departments. Over the years and, more specIfically m recent years, the fines and penaltIes have nsen dramatIcally and now mclude mcarceratIOn m some SItuatIOns. The IEB undertakes senous prosecutIOns pursuant to Part III of the Provincial Offences Act. WhIle the gnevor m the 1970's had a role m enforcement m that he was authonzed to Issue tIckets under that Act, hIS role was pnmanly as an admmIstrator Enforcement has become much more speCialIzed. The mtroductIOn of the Charter has meant more extensIve rules for search and seIzure procedures and eVIdentIary proceedmgs. InvestIgatIOn officers (Heremafter referred to as "IO's") by the IEB attend a sIx-week mandatory trammg course The first two weeks are done ImmedIately upon hIre and the remamder when tIme IS aVailable WIth the expectatIOn that all of the SIX weeks wIll be completed m the first two years of employment. The Employer took the pOSItIon that, If the gnevor were allowed to bump an 10 from IEB, he would be replacmg an mvestIgatIOn officer who has completed all of the necessary trammg WIth someone who has knowledge m envIronmental Issues but no knowledge or expenence m enforcement. For that reason It asked that the gnevance be dIsmIssed. THE FACTS As thIS gnevance concerns a claim that the gnevor had the mImmal qualIficatIOns to perform an IO's pOSItIon, much of the eVIdence mcluded vanousJob descnptIOns. Those pOSItIOn speCIficatIOns were lengthy and detailed. Rather than reproduce all of them, I mtend to rely for the most part on the Job descnptIOn of the InvestIgatIOns Officer pOSItIon and compare the gnevor's expenence wIthm thIS Mimstry to that Job speCIficatIOn to determme whether he has the qualIficatIOns to perform that Job as he claims. . - ~ 3 The InvestIgatIOns Officer specIficatIOn provIded to me was dated May 1, 1995 The purpose of the posItIOn IS set out as follows To conduct investigatIOns under the directIOn of the Supervlsor-Mid-Ontano Region, of mdlviduals or compames alleged to have contravened a variety of environmental legislation and/or legislated mstruments and to carry out a vanety of related enforcement activities, The maJonty of the dutIes and related tasks (60%) were set out as follows Conducts investigatIOns within an assigned geographical area, mto offences of the EnVironmental Protection Act (EPA), the Ontario Water Resources Act (OWRA), the Pesticide Act (PA), the EnVIronmental Assessment Act (EAA), the Niagara Escarpment Plannmg and Development Act (NEPDA), their regulations and other related legislation by' Obtaining and examining and analysing evidence such as financIal records/books, eqUIpment, regulated instruments, way bills and mamfests, penmts, ledgers, invOices and other documentatIOn as required, Collecting samples for evidence for a vanety of materials including hazardous and non hazardous solid and liquid wastes, effluent from a vanety of outfalls (process), sewers, storm, pesticides and fall out from air pollution mCIdents all samphng is to follow legal protocol and be conducted wearing proper safety eqUIpment. Obtammg Search Warrants or Entry Seizure Warrants pursuant to the provisions of the EPA. IntervIewmg suspects and accused, often In an adversarial environment. Utilizing appropnate interviewing technIques and following rules of evidence to obtain voluntary statements (cautIOned statements), Locating, intervIewmg (occasionally outside working hours) and takmg statements from WItnesses, complainants, industry representatives, etc. MaIntaining a lead responsibility for the activitIes for a team of specialists m the collectIOn of evidence during the course of an InvestigatIOn, Obtaining and evaluating profile information on alleged defenders of envIronmental laws from a vanety of sources e,g. police departments, title and vehIcle registratIOns, searches, informants, associates, etc, Preparing comprehensive wntten reports on Crown Briefs. Detailing the findmgs of the investigatIOn and making recommendatIOns for further actIOn, e,g, prosecutIOn of a violator Liaising WIth federal, municipal and provincial pohce and employees of other regulatory orgamzatlOns and agencies of the Crown to determme Ifajomt investigation -. ..- ~ 4 is reqUIred, exchange information, etc. InvestIgating offences involving infractIOns of Control Orders, conditIOns on CertIficates of Approval, Permits and other legal instruments by companIes and/or indIvIduals. PreparIng rough sketches, taking detaIled notes and photographing scene of environmental vIOlatIOn, as necessary Responding to "requests for investigation" under the envIronmental BIll of Rights. PreparIng evidence to obtain a Court injunction, LiaIsing wIth staff of District and Regional Offices to exchange information on activities, advise of plans, etc, Utilizing a computer to access the EBR registry and program such as data bases, spread sheets and word processing to assist in an investigatIOn, Participates in investIgations as a team member within a Project Unit at locatIons at other than aSSIgned geographIC area, ApproXImately 25% of the Job dutIes mvolve actIVItIes of a ProvmcIal Officer to prepare and aSSIst WIth prosecutIOns by' Preparing and swearIng Informations before Provincial Court Judges or JustIces of the Peace to lay charges against vIOlators, Executing and serving Summons, Subpoenaed, Court Orders and InjunctIOn Orders as required, Ensuring the collectIOn, securIty and preparatIOn/ordering of eVIdence of Court proceedings. BrIefing Crown counsel by presenting facts obtained through statements or examinatIOn of witnesses clearly and In sequence. AppearIng as a materIal or expert wItness for the Crown. Attending PrOVincial Court as an agent of the Crown to set dates for trials, adjournments, etc, As well, approXImately 15% of the dutIes mvolve partIcIpatmg m mandatory m servIce trammg programs on subJects such as pollutIOn abatement polICIes and programs, envIronmental law, bookkeepmg and surveIllance and mvestIgatIve technIques as well as related dutIes mvolvmg commIttee work, trammg programs and other dutIes as aSSIgned. - , 5 In the Job specIficatIOn It states that IO's also reqUIre a comprehensIve understandmg of the Provincial Offenses Act, Ontario and Canada Evidence Acts, a workmg knowledge of the Cnmmal Code and other related envIronmental legIslatIOn, a knowledge of procedures prescribed m the envIronmental BIll of RIghts, sound knowledge of the theory and practIces related to envIronmental pollutIOn and pollutIOn control technology, a baSIC knowledge of mdustnal processes and operatIOns, keen powers of observatIOn, thoroughness, attentIOn to detail, abIlIty to thmk logIcally as well as baSIC computer and photography skIlls. It was stated that a very hIgh level of Judgment was necessary m dealIng WIth mdustry, mumcIpalItIes, lawyers and Judges m provIdmg mformatIOn and gUIdance m relatIOn to proposed charges. Judgement IS also reqUIred to Implement legal actIOn when collectmg eVIdence, takmg statements, observmg rules of eVIdence, prepanng and servmg legal documents, conductmg mtervIews, espeCIally of an accused. The pOSItIOn IS fully accountable for deCISIons made WIth respect to ItS actIOns, mcludmg those mvolvmg mappropnate recommendatIOns, madequate techmcal findmgs or mcomplete documentatIOn of eVIdence. The Employer relIed heavIly on the SIX weeks trammg course proVIded to new hIres. As stated before, new employees proceed through the first two weeks almost ImmedIately on hIre The subsequent four weeks are then completed over a two-year penod dependmg on tIme commItments. Because of the relIance of the employer on thIS traImng, It IS necessary to set It out m some detail to appreCIate ItS content. WEEK ONE Day One, Spent mamly on subjects such as branch history and status, MOEE ~ ~ 6 orIentatIOn, MOEE and government structure, branch policies and professIonal conduct. Day Two EPA structure - 2 1/2 hours, EPA powers, Provincial Officers - 45 mmutes. OWRA and Fisheries Act - 45 minutes. Pesticides Act - 2 hours, Day Three. TransportatIOn of Dangerous Goods Act - 1 1/2 hours, EVIdence - 45 mmutes, Archival photography - research - 40 mmutes, basIc photography and colour photographs - 45 minutes, occurrence reports - 2 hours. Day Four AIr Resources Branch - 45 mmutes, notebooks - 45 mmutes, Waste Management Branch - 45 mmutes, Hazardous Contaminants Branch - 40 mmutes, mvestigation files and case management - 2 hours, water resource branch - 1 hour Day Five, EnVIronmental Offences in Ontario - 2 hours, due diligence - 2 hours. WEEK TWO Day One Compliance Policy -1 hour and 45 mmutes. BasIc chemical safety - 1 hour and 45 mmutes, Corporate documents - 1 1/2 hours, obtaining MCCR documents - 1 hour and 10 minutes, Day Two Provincial Offences Act - 45 mmutes, Provincial Offences Act, tickets - 2 hours and 45 minutes. Regulation 309 - 1 hour and 40 mmutes, expert witness protocol - 1 hour Day Three Approvals, IIcensmg, certIficates and permIts - 1 hour and 40 mmutes, photography results - 45 minutes, Human Resources Branch - 45 mmutes, wItness statements and mtervIewmg technIques - 3 hours. Day Four Land Titles searches - 1 hour and 45 minutes, Crown briefs - 45 minutes, soft drInk legIslatIOn - 40 minutes, NIagara Escarpment CommIssion - 45 minutes, Day Five POA ticket, mock trIal - 1 hour and 40 mmutes, case studIes - 1 hour and 40 mmutes, WEEK THREE Day One Pollution IndustriallCherrllcal - 3 hours, Day Two Court room procedures - 2 1/2 hours, eVIdence - 3 1/2 hours Day Three IntervIewmg technIques - 50 mmutes, wItness statements - 50 minutes, statements--practIcal exerCIse - 5 1/2 hours. Day Four Regulation 308 AIr PollutIOn Control - 1 hour and 40 mmutes, landfill sites - 1 hour and 40 minutes, hydrogeology - 1 hour and 45 mmutes, well legIslation - 1 1/2 hours Day Five Crown brIefs and informations - 2 hours, WEEK FOUR Day One Interviewmg technIques - 2 1/2 hours, Day Two IEB caution statements - 1 hour, statement exercise - 3 hours and 15 mmutes, Day Four Search and SeIzure lecture - 2 1/2 hours, practical exercises-- -., ~ 7 mformation to obtam search warrant, in preparatIOn of search plans - 3+ hours, Day Four Search bnefing - 30 mmutes, practical exercise search warrant execution - I hour and 40 mmutes, complete seizure forms and mvestlgator logs - 1 hour return heanng - 1 hour and 40 minutes, presentation and search debriefing - 2 1/2 hours. Day Five Defense lawyers - 45 mmutes, presentation of case studies, search warrant and cautIOn statement cases - 3 hours, WEEK FIVE Day One Meteorology, -1 hour, air dispersion modelling - 1 hour and 15 minutes. Day Two Air pollution control equipment - 2 1/2 hours, jurisdictional problems - 2 hours, phytotoxicology and acid rain - 1 hour and 30 minutes, vehicle emissions - 1 hour and 15 mmutes. Day Three Pamt industry - 50 mmutes, power under control video - 50 mmutes, legal services branch - 1 hour and 45 mmutes, case study presentatIOns - 3 hours and 15 minutes Day Four Steel and Foundry Industry - 50 minutes, media relations - 50 mmutes, LIW Industry prospective - 1 hour and 45 minutes, first responder video - 1 hour, investigating environmental cnmes video - 1 hour and 15 minutes, Day Five PresentatIOn of case studies - 3 hours. WEEK SIX Day One Fraud awareness - 1 hour, BaSIC Forensic Accountmg - 2 hours and 15 mmutes, Day Two Enforcement office - 30 mmutes, mtroduction to surveillance, informatIOn gathering - 1 1/2 hours, cnme stoppers - 1 hour and 45 mmutes, mformation and summons, practical exercise - 3 hours and 15 mmutes Day Three Introduction, agncultural pollutIOn - I hour and 45 mmutes, Stormwater management - 1 hour and 45 mmutes, secondary steel - 1 hour, pulp and paper - 1 hour, MISA enforcement - 1 hour Day Four Mimng and Refinmg - 1 1/2 hours, sewage treatment - 1 1/2 hours, toxIcology - 1 hour Environmental Assessment Act - 40 mmutes, EnVIronmental BIll of RIghts - 2 1/2 hours. Day FIve SpIlls ActIOn Centre - 1 hour, TSS update - 30 mmutes, exam. That IS the Job that the gnevor claimed he was qualIfied for and should have bumped mto Mr Bazmet was first employed by the MOEE m May of 1973 When he was advIsed m May of 1996 ~ -~ ~ 8 that he was bemg surplused, he was a RegIOnal Waste Management Coordmator m the Mid Ontano RegIOn out of the Sudbury office and had been for about 2 1/2 years. At the date of the hearmg he was an EnVIronmental Officer m abatement, WhICh IS an E04 posItIon. Mr Bazmet testIfied that when he realIzed that he had not been accepted for the E05 posItIOn m I.E.B., he thought they had made a mIstake. At first he belIeved they had not revIewed hIS qualIficatIOns and then deCIded that they had SImply failed to follow the collectIve agreement. In hIS VIew he had more semonty than Ms. Johnson, who IS the least semor m the I.E,B and, m addItIon, he had all of the qualIficatIOns necessary It was hIS VieW that he had obtamed those qualIficatIOns throughout hIS career m the MOEE and through addItIonal courses he has taken over the years. When he began workmg WIth the MOEE as an EnVIronmental Officer m May of 1973, ills dutIes and responsibIlItIes mcluded mspectIOn of communal water and sewage work, waste dIsposal SItes, mannas, water wells and pnvate sewage dIsposal systems to ensure complIance WIth the Environmental Protection Act and the Ontario Water Resources Act and theIr regulatIOns. It also mcluded responsibilIty for the reVIew of subdIVISIOns and other mumcIpal and pnvate proposals m the plannmg and development stages to ensure that envIronmental safeguards were met. He provIded contmency responses, prepared eVIdence for Court cases, coordmated surveys, prepared reports, ensured proposals and programs met the envIronmental standards, and coordmated surveys of dIscharges to the enVIronment to ensure COmphaI1Ce WIth the legIslatIOn and gUIdelInes. From March of 1977 to June of 1980 he was an EnVIronmental Officer-Industnal Abatement. His dutIes mcluded surveIllance and assessment of mdustnal sources of pollutIOn, mvestIgatIOns, - ...:. ~ 9 mcludmg samplIng and data analysIs, meetmg wIth mdustnes, techmcal and management staff and evaluatmg abatement proposals, developmg technIcal expertIse, preparIng eVIdence for Court appearances, provIdmg contmgency responses, provIdmg responses to envIronmental questIOns from the general publIc and revIewmg proposals of mdustnal nature dUrIng the planrung and developments stages to ensure envIronmental complIance WIth envIronmental standards From May of 1989 to February of 1991 he was an Area SupervIsor-Abatement and hIS responsibIlItIes mc1uded supervIsmg full and part tIme stan: coordmatmg abatement programs, reVIewmg complex proposals and applIcatIOns to ensure complIance under varIOUS acts, supervIsmg mvestIgatIOns, recommendmg legal actIOn and provIdmg expert testImony for Courts and quasI- JudICIal bodIes, assIgmng work, assessmg programs, partIcIpatmg m gnevances, recommendmg ment mcreases and conductmg performance appraisals. He also assumed the dutIes of the DIstnct Officer dUrIng hIS absence. From June of 1980 to January 1993 he was an AIr QualIty Analyst for the north eastern regIOn and hIS dutIes mvolved planmng and Implementmg regIOnal aIr qualIty programs, plannmg and coordmatmg speCial air qualIty surveys, provIdmg consultmg servIces to staff and external clIents, prepanng offiCIal mImstry reports and documents, recommendmg controls and programs for abatement of air pollutIOn problems, preparmg eVIdence for Court cases and supervIsmg contract staff More explICItly, those dutIes mcluded plannmg, orgamzmg and carmg out speCial surveys to determme complIance WIth provmcIal cntena, mamtammg control of collected data by ensurmg dehvery to proper sectIOns wIthm the Mimstry and outSIde agenCIes, mamtammg data files, manually --. I ~ 10 and by computer, mampulatmg and orgamzmg data mto report form for dIstributIOn WltIDn the regIOn, prepanng wrItten reports on routme and specIal momtonng programs m the regIOn and lIaIsmg with head office wIth regard to data analysIs and mterpretatIOn. From June of 1991 to January of 1993 he was Planner, north east regIOn, and hIS duties mcluded coordmatmg the reVIew of applIcatIOns and prepanng certIficates of approval and permIts under the Environmental Protection Act, the Ontario Water Resources Act and the Pesticides Act, revIewmg and prepanng pestIcIdes permIts for aenal, land and water applIcatIOns, Implementmg regIOnal and envIronmental assessment land use plannmg and waste management programs and supervlSlng contract staff When the gnevor IdentIfied the E05 posItIOn m IEB, Mr Roger Howe was gIven the responsibIlIty assessmg hIS qualIficatIOns for the Job Mr Howe IS now a Coordmator m the Approvals Branch and has been smce May of 1997 Before that he was a field manager wIth the IEB and responsible for SIX regIOnal supervISors. As well as bemg responsible for ensurmg umformIty and consIstency of enforcement across the provmce, he had human resource dutIes WIth respect to the group that he managed. Mr Howe has been WIth the government smce 1969 and began as a pollutIOn control mspector WIth the Mimstry of Health. In 1974 the MOEE was formed and he began workmg m that Mimstry as a dIstnct mspector ImtIally he was aSSIgned to test air qualIty m hospItals and later was aSSIgned as a dIstnct mspector m Watertown, responsible for air pollutIOn and waste management Issues. His duties expanded to mclude nOIse pollutIOn. Over tIme and as pollutIOn Issues became more complex and restnctIons on waste dIsposal more stnngent, he transferred m 1981 to the SpeCial --:::. ~ 11 InvestIgatIOn Umt as a supervIsor From the SID evolved the IEB Most of the staff recruIted to the IEB came from the mvestIgatIOns area of abatement. The emphasIs was on the mvestIgatIOn of offenders. All new IEB officers were reqUIred to take the sIx-week traImng course referred to above. In addItIon there was contmumg educatIOn mcludmg three-day courses m 1992 and 1994 The 1994 trammg course mcluded tOpICS such as freedom of mformatIOn, enforcement case examples, mtervIewmg people WIth dIverse cultural backgrounds, "SCAN" statement reVIew technIques, mvestIgatIve analYSIS, new notebook format and laboratory mformatIOn. To some extent the courses were an upgrade m new formats and procedures and, m other cases, an expansIOn of the responsibIlItIes of IEB officers. Mr Howe described the aim of an mvestIgatIOn as bemg to determme whether an offence has been commItted and, If so, the elements of the offence, the baSIS for the charges, the preparatIOn of the crown bnef, the sweanng of the mformatIOn and the coordmatIOn of the case bemg prepared for tnal. These crown bnefs are dIrected to prosecutIOns m the provmcIal offences court before a provmcIal court Judge or JustIce of the peace He described the crown bnef as bemg of a standard format consIstmg of an mtroductory page settmg out the charges, the date, the officer m charge and the general background of the complamt. The book IS tabbed and there are sectIOns for a SynOpSIS of the eVIdence, the ongmal and a typed verSIOn of the wIll-say statements of the WItnesses, the exhibIts, tabbed and numbered, whIch could mclude corporate documents and photographs and a general sectIOn for any other relevant mformatIOn. As wIll be seen later these crown bnefs weIghed heavIly m the Employer's declSlon to deny the gnevor hIS bump -.. ~ 12 Mr Howe testIfied that as a mvestIgator wIth the IEB It IS necessary to have expenence m mvestIgatmg procedures of a forenSIC nature as well as a procedural and substantIve knowledge of the due process of the law, a knowledge of the Charter and ItS effect on prosecutIOns, the Impact of delay and Its legal consequences. Mr Howe described a forensIc mvestIgatIOn as bemg dIstmct from all other types done m abatement. It was hIS eVIdence that an Abatement Officer focuses on resolvmg problems usmg vanous mechanIsms at hIS or her dIsposal. The Abatement Officer's mvestIgatIOn IS not usually done WIth a VIew to observmg the rules of eVIdence m a court of law An IEB mvestIgator, however, begms hIS or her mvestIgatIOn WIth a VIew to provmg that an offence has taken place To do that he or she must know the legIslatIOn, m partIcular the offence sectIons, must have an understandmg of how to mterpret those sectIOns, how to collect the eVIdence to prove the offence and how to conduct mtervIews, mcludmg advIsmg people of theIr nghts. They have to know when cautIOn statements are appropnate and be prepared to Issue them. They must have a degree of technIcal knowledge and expertIse and know when a case reqUIres expert eVIdence. They must have good commumcatIOns skIlls, be well organIzed and have an understandmg of the admmIstratIve process regardmg laymg charges and ISSUIng search warrants Mr Howe dIscussed the mandatory sIx-week trammg program, He described the purpose of the first two weeks as bemg deSIgned to mtroduce an employee to the Mimstry, to the branch, to gIve an overvIew of the orgamzatIOn, ItS polICIes and procedures and a baSIC mtroductIOn to the legIslatIOn mvolved, mcludmg ItS enforcement mechamsms. Employees are also mstructed WIth respect to mamtammg records and notebooks and safety Issues. Week number two IS more concerned WIth Issues of complIance, tIcketmg under the POA and WItness statements. Accordmg to Mr Howe the - ~ 13 first two weeks are done ImmedIately upon hIre m order to start the process of developmg the necessary skIlls for the Job The two weeks provIde for an mItIal cross matchmg of SkIlls and expenence. It sets out the expectatIOns of the branch and allows a new employee to become famIlIar WIth branch polIcy Immediately upon hIre. He agreed that the amount oftIme set aSIde dUrIng the SIX week program was mdIcatIve of the amount of mformatIOn reqUIred on any gIven subJect. For example, m week two the same amount of tIme, that IS 45 mmutes, was set aSIde for the preparatIOn of crown bnefs as was reqUIred to dISCUSS soft dnnk legIslatIOn. Mr Howe agreed that m a competItIOn a new 10 would be expected to know some but not all of the mformatIOn provIded m the first two weeks of trammg, However, m the case of someone bumpmg mto the department who has been surplused, Mr Howe's expectatIOn would be that they would be reqUIred to know at a mImmum what IS taught m the first two weeks of traImng m order to be consIdered qualIfied, In hIS VIew the mImmal reqUIrements of the Job dIctate that a person be able to conduct an envIronmental forenSIC mvestIgatIOn. Mr Howe agreed as well that, based on hIS mterpretatIOn, only someone who not worked for the IEB would have the qualIficatIOns to bump mto the IEB dUrIng a down sIzmg because of the unIqueness of ItS trammg reqmrements, Another area of contentIOn mvolved search warrants, although Mr Howe conceded that they were not commonly used. The most common use arIses when an 10 wants to mtervIew the employees of a company and the company mSIsts that ItS lawyers SIt m on those mtervIews, Often the corporatIOn wants everythmg dealt WIth through ItS mam office when the 10 IS more mterested m the local or regIOnal offices. WhIle concedmg that IO's or AO's have the same powers under the Provincial Offences Act, Mr Howe mamtamed that the utilIzatIOn of those powers could be m conflIct WIth the - ~ 14 Charter unless care IS taken to aVOId that. It was hIS VIew that the gnevor was not qualIfied. InvestIgatIOns done under the IEB reqUIre specIfic skIlls umque to the pOSItIOn and It would be rare to find somebody who could step mto all of the dutIes of the Job WIthout some traImng and/or dIrect expenence Mr Howe completed the OPSEU DeclaratIOn-Surplus Person form by statmg as follows. a, (major/signIficant) duties and related tasks of job whIch surplus person not qualIfied/able to perform at minimally acceptable level Conduct forenSIc investigations into environmental offences, IntervIew and obtaIn voluntary/cautIOnary statements in accordance WIth rules of evidence and Chalter of Human Rights. Plan, obtam and execute search warrants, b SkIlls and experience lackll1g whIch are required to mll1lmally perform Job There is no IOdlcatlOn this surplus person IS famIlIar WIth the strategies and tactics of quasi cnmmallaw enforcement and has not had expenence In conductIng forenSIc investIgations c. Other concerns/consIderations None, In cross-exammatIOn Mr Howe made some conceSSIOns that are relevant to tills Issue. For example, he admItted that losmg Ms, Johnson, who has been m the pOSItIOn smce 1985, would have had a sIgmficant Impact on the department and was a relevant concern for management. He also agreed that he was lookmg for a hIgher standard of qualIficatIOns m thIS case than he would have been m the normal or average competItIOn. A competItIOn, m ills VIew, meant selectmg a candIdate who met the needs of the pOSItIOn but needed some traImng m all areas. In a bumpmg SItuatIOn, such as the one mvolved m the mstant gnevance, It was hIS understandmg that the person had to be able to perform the fundamental reqUIrements of the Job WIthout any traImng, He also acknowledged that there was no questIOn but that the gnevor has performed well m all of the Jobs he has done m the past and that performance was not a factor m hIS deliberatIOns. He was shown the Job postmg for a temporary pOSItIOn as an 10 and he agreed that, m a temporary aSSIgnment, the Mimstry was lookmg for r- ~ 15 somebody WIth expenence m envIronmental or cnmmallaw enforcement whereas he wanted both m these CIrcumstances. As well, the temporary posItIOn reqUIred somebody who had appeared before a court or other JUdICial body, whereas he was lookmg for someone who had expenence m both. Mr Howe relIed to a large extent on the curriculum vitae (CV) of the gnevor m assessmg hIS qualIficatIons. He noted that the gnevor had been prepared to gIve eVIdence as an expert WItness but could not tell from the CV whether he had, m fact, done so He acknowledged that whIle It was Important to hIS conSIderatIOns, he dId not ask the gnevor for clanficatIOn. Based on the gnevor's CV, Mr Howe admItted that he had no concerns about hIS demonstrated abIlIty to mterpret and apply legIslatIOn or hIS computer and photographIc skIlls. Mr Howe also accepted the gnevor's knowledge of the rules of eVIdence because they had been taught to hIm at an Aylmer opp trammg course the gnevor had attended m the past. As mentIOned before, one of hIS concerns was the gnevor's mexpenence m dealmg WIth search warrants although he conceded that they were rarely necessary and, when they were, most often they were done WIth the adVIce and aSSIstance of crown counsel. The meetmg to dISCUSS the gnevor's qualIficatIOns was held on June 3, 1996 Also m attendance was Ms. Bassett, Ms. Johnson's supervIsor and Mr Kerr, RegIOnal SupervIsor of the eastern regIOn. Mr Howe dId not have the gnevor's portfolIo dunng the majorIty of the meetmg but dId recall It bemg faxed to hIm at some pomt before the declSlon was made to deny hIm the bump Mr Howe was --" I ~ 16 asked by hIS supervIsor, Ms. PatncIa Hollett, to reVIew the gnevor's credentIals and It was hIS deCISIon to mvolve Ms. Bassett and Mr Kerr Although the declSlon was ultImately hIS, both Mr Kerr and Ms. Bassett concurred wIth hIS decISIOn to deny the bump Mr Howe relIed exclUSIvely on the documents before hIm m commg to the declSlon to deny the gnevor tills bump. He testIfied that willie he was an Abatement Officer he had have some expenence m prosecutIOns. The gnevor's CV and portfolIo however dId not make any mentIOn of prosecutIOns and Mr Howe assumed that he had not done any At the tIme he belIeved that the portfolIo was prepared speCIfically for the Job at Issue and assumed that It would contam all mformatIOn relevant to the Job bemg sought. Another Issue of concern for Mr Howe mvolved cautIOn statements. Before the formatIOn of the SIU or the IEB, Abatement Officers mIght have been reqUIred, on occaSIOn, to Issue cautIOn statements. However, once the mvestIgatIve aspects of the Job were formally gathered under one branch, It was no longer necessary for AO's to adVise people of theIr nghts under the Charter Mr Howe testIfied that at one tIme AO's dId mvestIgate WIth a VIew to prosecutIOn. For that reason the Aylmer course mcluded mstructIOns on preservmg eVIdence and preparmg a case for prosecutIon. To Mr Howe's knowledge, none of the mvestIgatIOns mItIated by an AO that ultImately lead to prosecutIOn by the IEB have ever been challenged m court for a faIlure to properly warn WItnesses of theIr nghts or for failure to properly mamtam a cham of eVIdence ~: ~ 17 Mr Howe was specIfically cross-exammed about the process used to evaluate the gnevor's j qualIficatIOns. He conceded that, although the meetmgs started around 9'00 A.M., the gnevor's portfolIo was not faxed to them untIl 12.26 P.M. The meetmg concluded shortly after 3'00 P.M. and so, for the maJonty of the evaluatIOn process, the commIttee dId not have the benefit ofMr Bazmet's portfolIo to asSISt them m theIr deliberatIOns. Mr Howe testIfied that for the first part of the day they dIscussed the basIc qualIficatIOns reqUIred for the posItIOn. They were attemptmg to develop gUIdelInes to deal wIth thIS and future bumpmg requests. It was suggested to hIm that the purpose of the meetmg was not to determme the qualIficatIOns of the gnevor but to develop cntena to specIfically keep the gnevor and other Abatement Officers from bumpmg mto IEB pOSItIOns. Ms. Hollett, the director of the IEB at the tIme, mstructed Mr Howe and the other members of the commIttee to develop those cntena for the gnevor and for the future Mr Howe demed any such suggestIOn. It was put to hIm that Mr Kerr's eVIdence would be that Ms. Hollett called rum and gave rum those very mstructIOns. It was stated that hIS eVIdence would be that he was uncomfortable With the Idea of excludmg Abatement Officers from these pOSItIOns and, further, that he was not m agreement WIth Mr Howe that the gnevor was not qualIfied. Mr Howe maintained hIS pOSItIon that they were all m accord at the conclUSIOn of the meetmg. Indeed Mr Kerr's eVIdence was exactly as stated. At the tIme of the heanng he was an EnVIronment Consultant but before that he had worked WIth the MOEE for twenty-seven years. Most recently he had been the regIOnal supervISor for the IEB eastern regIOn. He went dIrectly from abatement to the SIU m the early 1980's and began hIS dutIes Immediately as an 10 after hIS two week trammg program. He testIfied that towards the end of May m 1996 he receIved a call from Ms. Hollett to -,-.. .. 18 partIcIpate m a meetmg WIth Mr Howe and Ms. Bassett, the purpose of whIch was to develop reasons for the demal of a bumpmg request by Mr Bazmet m Sudbury When he attended at the meetmg the three of them dIscussed reasons for the demal. They were antIcIpatmg addItIOnal surplus notices WIthm the abatement branch and operated somewhat as a "trunk tank" to develop grounds to deny bumps mto IEB Although he was aware that Mr Howe had a document m ills hand WhICh he referred to throughout the meetmg, he personally never saw the gnevor's portfolIo and as far as he could recollect none of the dISCUSSIons specIfically referred to the gnevor but rather generally referred to Abatement Officers. He testIfied that none of the three attendees were comfortable. The IEB had been seeded by abatement for years and a good portIOn of the people workmg there came dIrectly from abatement. Mr Kerr's opmIOn was that any suggestIOn that a semor AO dId not meet the mInImum qualIficatIOns of an 10 was a change of past practIce that would reqUIre an explanatIOn. It was never ills OpInIOn that Mr Bazmet was unqualIfied or mcompetent to bump mto the pOSItIOn. Mr Kerr agreed that as a general rule It was unlIkely they would find people outsIde of the IEB able to do the full range of the Job dutIes Immediately It was hIS VIew that If he were placmg somebody new mto a one-person office, he would need somebody who could do the Job Immediately However, Ifhe was placmg somebody m an office WIth other IO's, It would be suffiCIent to have someone who was famIlIar WIth the reqUIrements of the Job but not necessanly expenenced at domg It. What It came down to m hIS VIew was the amount of supervISIOn reqUIred. He mamtamed that rather than develop general cntena to establIsh mImmum qualIficatIOns, hIS role at that meetmg was to exclude abatement officers. He demed the suggestIOn that they were SImply lookmg at genenc condItIons to be applIed m a future downsIzmg and Said that what they were to do was develop new cntena that had never before been used. As far as he was aware, the deCISIOn had already been made WIth respect ~- ' , 19 to the gnevor and they were to sImply develop a ratIOnale to defend It. Mr DavId Bradbury testIfied about the IEB He IS currently one of the three program managers. He started wIth the MOEE m May of 1974 as ProvmcIal Officer desIgnated under the Environmental Protection Act. He work out of the nOIse abatement sectIOn until 1980 when he transferred to the mdustnal abatement branch. In 1982 the mdustnal abatement sectIOn was dIVIded and Mr Bradbury was transferred mto abatement. His responsibIlItIes mcluded respondmg to complamts about cheffilcal and envIronmental spIlls, mcludmg enforcement. He transferred to the IEB m 1985 when It was formed and worked there untIl March of 1997 He sat on the IEB traImng commIttee, whICh ImtIally provIded traInmg wIthm the branch by management personnel. After the SIX weeks mandatory traImng program was completed, upgradmg was provIded WIthm the branch but It was theIr VIew that a more comprehenSIve upgradmg regIme was needed on a more regular basIS. In companng theIr SIX week traming course wIth the one week Ontano PolIce College Course m Aylmer taken by the gnevor m 1987, It was hIs VIew that the Aylmer course dId not the depth of mformatIOn taught m the IEB course It was Mr Bradbury's VIew that one of the sIgmficant dIfferences between the IEB mvestIgators and other officers wIthm the MOEE IS the level of profeSSIOnal conduct expected of them. That profeSSIOnal conduct IS part of theIr trammg program and IS umque to the IEB They have stnct rules regardmg dress code and profeSSIOnal conduct that gIVes them the nght to correctly IdentIfy themselves as mvestIgators. He Said that "they lIke to present themselves m a professIOnal manner that sets us apart from other m1ll1stry employees." It was hIS opmIOn that after the first two weeks of the trammg program an employee would have a good foundation towards becommg an mvestIgator but would not yet be competent to do all of the aspects of the Job -'111 ' ~ 20 Mr Bradbury contrasted the role of an IEB mvestIgator and an Abatement Officer WhIle both of them conduct InvestIgatIOns, Abatement Officers have the authorIty to Issue tIckets to a mronmum of $500 00 They also have to understand the rules eVIdence and the basIs for reasonable and probable grounds for the tIcket. Once an alleged offence IS forwarded to the IEB, the InvestIgatIOn, however, IS taken to a hIgher level. He analogIzed It to a polIce force WhICh has dIfferent areas of mvestIgatIOn. IEB officers have the authonty to Impose penaltIes as illgh as $2,000,000 00 a day and up to one year mJail. The degree of penalty IS much hIgher and the care taken to prepare the case IS that much more comprehensIve. IEB InvestIgators operate under closer scrutInY because all of the eVIdence they collect has to stand up m a court of law In order to properly prepare that eVIdence they have to be properly tramed. Mr Bradbury stated that the IEB officers look at theIr 10 posItIOns as dIStInct career paths separate and apart from abatement. Mr Bradbury stated that as an Abatement Officer he was not mvolved m prosecutIOns but at the tIme thmgs were very dIfferent. It was much ea~Ier to get a conVIctIOn then and the offences and offenders were more ObVIOUS. One of the skills reqUIred by an InVestIgator of the IEB IS the abilIty to obtaIn search warrants. Once a search warrant has been obtaIned, a team ofmvestIgators appears at an establIshment and conducts an m-depth reVIew of corporate documents and/or files and anythmg else that mIght assIst them m prosecutmg the offender The search warrants are used rarely but are stIll conSIdered an effectIve and necessary enforcement tool. The threat of a search warrant IS usually enough to obtam complIance. CautIOn statements are, on the other hand, a very common tool and are used at least once m every mvestIgatIOn. SImilarly, crown bnefs are prepared for every case that reaches prosecutIOn and IS the ~ 21 bluepnnt for how a case wIll be presented at court. Mr Bradbury took great pnde m the fact that the crown bnefs prepared by his branch are vIewed by crown counsel as bemg excellent m form and substance. Once a bnefhas been prepared It goes through a reVIew process mvolvmg the prosecutIOn coordinator and the legal servIces branch that ultImately approves the charges. The mvestIgator then lays the charge and prepares the appropnate summons. Another more recent change m procedure Involves dIsclosure The latest rules and court declSlons are updated by the crown law office and are revIewed by mvestIgators on an on-gomg basIs. Mr Bradbury was Involved In desIgnIng a trammg and upgradmg matnx for theIr branch wmch mvolved mcorporatmg all these reqUIrements and changes so that an mvestIgator would be fully aware of all aspects of the Job In cross-exammatIOn Mr Bradbury allowed that he went dIrectly from abatement to enforcement and that, as an Abatement Officer, he responded to VIOlatIOns and/or spIlls pursuant to the Environmental Protection Act. He was generally first on the scene and was reqUIred to gather eVIdence and take samples WIth a VIew to comphance. He mamtamed that there were sIgmficant dIfferences m the two roles, although he conceded that the Charter had httle Impact on the collectIOn of eVIdence and preparatIon for prosecutIon sInce the reqUIrement for contmUIty of eVIdence predated the charter There was, m hIS VIew, a dIstmctIOn In the fact that an Abatement Officer IS mvolved m pubhc protectIOn and welfare and IS generally lookmg for comphance durIng an InvestIgatIOn. They are the first on the scene to collect eVIdence contemporaneous WIth the event but WIth a dIfferent focus. He dId agree that the procedure for collectmg eVIdence would be the same, IrreSpectIve of the v." ~ 22 ultImate goal. He stressed agam the dIstmctIOn between an Abatement Officer and an InVestIgator from IEB by pomtmg out the reqUIrement for IEB mvestIgators to properly IdentIfy themselves as InvestIgators when they approach an alleged offender When asked where people would get the kmd of expenence they reqUIred m new mres, he stated that some Abatement Officers would have conducted themselves m such a way that they would have gamed the expenence necessary As well they have recnllted from Canada Customs and pohce forces. It was also suggested to hIm that an Abatement Officer and an IEB mvestIgator lay charges based on reasonable and probable grounds and conduct then mvestIgatIOn on that baSIS. He agreed but noted that the dIfference was that Abatement Officers base theIr deCISIOn to lay charges on a personal VIew of what happened, whereas, an 10 WIth the IEB must pIece together what happened through eVIdence With respect to the search warrants, Mr Bradbury testIfied that SInce 1985 he has been mvolved m two SItuatIOns where search warrants were needed, one, four years ago, the other SIX years ago The cautIOn statements referred to Involve notIce to the person bemg mtervIewed that they mIght be charged under a certam sectIOn of an Act and that, whIle they are not obhged to sayanythmg, anythmg that they dId say could be used agaInst them. Mr Bradbury agreed that mvestIgators carry black notebooks WIth the standard form cautIon statement mcluded. All that the 10 has to do IS msert the sectIOn(s) of the Act allegedly VIolated 111 the CIrcumstances. The mvestIgator reads the cautIOn statement to the person bemg 111tervIewed and records hIs/her response verbatIm. He agreed that If a new mvestIgator had a good understandmg of eVIdence he/she would, after the 45 m111ute lecture provided dunng the trarmng penod, have acqUIred a basIC competency level m prepanng crown bnefs. ~ 23 Regardmg the Issue of dIsclosure, Mr Bradbury stated that durmg a course of an mvestIgatIOn, everythmg that IS relevant must be dIsclosed to the other SIde. ImtIally the mvestIgator makes a determmatIOn as to what IS to be dIsclosed wIth the assIstance of management personnel and legal advIsors. Generally an mvestIgator errs on the SIde of cautIOn and dIscloses essentially all of ItS eVIdence. That IS, m essence, the Job that the gnevor was seekmg to bump Into When he was adVIsed that he was demed his bump, hIS first thought was that they must have made a mIstake and that they had not properly revIewed hIS quahficatIOns. He then deCIded that they had not followed the CollectIve Agreement and filed hIS gnevance. Mr Bazmet has an Honorary Bachelor of SCIence Degree m BIOlogy His degree IS ecology based and mcludes a mmor m phYSICS and math from LaurentIan UmversIty He recently obtamed ms masters of SCIence on the Effects of Wood, Smoke From ReSIdential CombustIOn. He obtamed hIS masters through the support of the Mimstry They pard for hIS trammg, allowed hIm tIme off to attend classes, prOVIded hIm WIth lab support and eqUipment and gave mm techmcal support as well. It took mm almost ten years to obtaIn his degree but, m ms VIew, It was of asSIstance to him because It reqUIred techmcal knowledge on how pollutants move from one place to another and aSSIsted hIm I m helpmg to prove cause and effect and Issues concernmg neghgence Over the years he has also ; taken an ImpreSSIve number of addItIOnal courses at LaurentIan UmversIty mvolvmg au pollutIOn, meteorology, botany and other areas related to the enVIronment. In 1987 he took a one-week course r by the Ontano Pohce College whIch mcluded Issues on the role of an Abatement Officer, the role of !" I ~ - ~ 24 an Envlfonmental Officer, the Charter of Rights, JunsdIctIOnal problems, Mimstry of Envlfonment legIslatIOn, orders under the Provincial Offences Act, collectIOn and preservatIOn of eVIdence, cnme scene drawmg, Provincial Offences Act, mtervIew techmques, land regIstry system, rule of IEB/abatement, mvestIgatIve photography, notes and notebooks. That was the Aylmer course referred to earher As an EnVIronmental Officer he was responsible for the operatIOns of plants run by the Ontano Government mvolvmg water treatment and sewage facIhtIes. His dutIes mvolved darly knowledge of what was happemng m each operatIOn, revIewmg data and samples and possibly mvestIgatmg effluent for problems. EnVIronmental Officers acted upon complamts and were reqUired to document the results of theIr mvestIgatIOn mto those complamts. That mvolved documentmg and collectmg samples and photographs, always wIth the VIew m mmd that theIr collectIOn of data mIght ultImately result m court actIon. They prepared mspectIOn and observatIOn reports based on theIr mvestIgatIOn of each complamt and noted whether gUIdelmes had been exceeded and whether there had been charges lard under the Provincial Offences Act. They also made recommendatIOns about prosecutIOn and proVIded Input on whether charges should be lard. EnvIronmental officers were also be reqUIred to gIve eVIdence m a court ar1d, m fact, the gnevor had not only gIven eVIdence before the Ontano MumcIpal Board but also presented a case before It as the Mimster's representatIve As an Envlfonmental Officer he prepared WItnesses to testlfymg before the EnVIronmental Assessment Board, the EnVIronmental Appeal Board and the OMB Part of hIS dutIes mcluded constantly prepanng techmcal reports, from usmg a basIC tIck-off sheet to prepanng a full report WIth findmgs, recommendatIOns and conclUSIons. He has wntten numerous reports on envlfonmentalIssues that - I ~ 25 were ultImately adopted by the Mimster ,1 In hIS role as Waste Management Program Coordmator, he was mvolved extensIvely m waste management legIslatIOn and acted as an "expert" to the Mimstry He had to be knowledgeable of the vanous Acts and theIr regulatIOns and sat on several commIttees dealmg WIth recommended amendments to make them more enforceable. He commumcated WIth the IEB legal adVIsors m consIdenng whether changes should be proposed for the legIslatIOn. He was Involved m recommendmg legal actIon, pnmanly on the mterpretatIOn of vanous regulatIOns and whether they had been dIsregarded or VIOlated and whether a case could be proven. All of those dutIes reqUIred a workmg knowledge of all of the various statutes and regulatIOns mvolvmg envIronmental Issues. In hIS pOSItIOn as AIr Quahty analyst, he was reqUIred to have extensIve knowledge of the Environmental Protection Act. That mvolved collectmg samples and conductmg mvestIgatIOns WIth a VIew to ultImate court actIOn. He was reqUIred to prepare detaIled reports and some of hIS pubhcatIons were subsequently used by the Mimstry WIthout amendment. He conSIdered mmself to be an expert m au quahty In 1989 he was mvolved m a prosecutIOn under the Environmental Protection Act ofE.B Eddy Forest Products LImIted. He became mvolved m the ImtIal stages when the complamts were filed, collected samples, took statements from complamants, took photographs and recorded hIS eVIdence He was mvolved m developmg a momtonng program to determme whether the levels exceeded the Environmental Protection Act. To do so he had to collect and analyse eVIdence -,.". ~ 26 With respect to the Job specIficatIOns of the 10, the gnevor testIfied that he had conducted mvestIgatIOns, mcludmg analysmg and obtaImng samples as a Waste Management Coordmator, an Abatement Officer, an Envuonmental Officer and as a SupervIsor That mcluded mvestIgatmg offences under the Environmental Protection Act, the Ontario Water Resources Act, the Pesticide's Act, and the Environmental Assessment Act. He also was mvolved m revlewmg and mvestIgatmg finanCIal records and books as an Au QUalIty Officer and Waste Management Program Coordmator He conducted mspectIOns at Inco and Falconbndge and reVIewed waybIlls and marufests. He collected samples of numerous matenals for eVIdence dlmng all of hIS employment m abatement. He followed legal protocol and collected what he referred to as "legal samples", ensunng a contmUIty of eVIdence. Although he has not personally obtamed a search warrant or entry and seIzure warrant, he suggested that It would not be a problem and that each tIme the legal branch has sought to obtam a search warrant, they have asked for aSSIstance from the Abatement and EnVIronmental Officers mvolved In the case. He has mtervIewed suspected offenders several tImes m an adversanal enVIronment. He also located, mtervIewed and took statements from Witnesses and complainants as the first contact on the scene. He was the lead person responsible for the actIVItIes of a team as an All' Quahty Analyst and as a Waste Management Coordmator He was also lead m the OMB case referred to earher and It was he who deCIded who would be a WItness and what eVIdence they would present. He has been bnefed by crown counsel as an expert WItness and was prepared to gIVe eVIdence m the E.B Eddy case, although ultImately It was not reqUIred. ARGUMENT Mr Holmes, counsel for the gnevor for the Umon, took the pOSItIOn they had proven the necessary - ~ 27 elements of the case The gnevor was surplused and he asked to bump mto a Job of the same Ii' classIficatIOn wIthm the same mmIstry wIthm 40 kIlometres of where he hved. The mcumbent he asked to bump has less semonty and, by all of those standards, he should have been allowed ms bump. The only element m dIspute IS hIS competency to perform the mam components of the Job at a mImmallevel of competence. The Issue IS not whether the gnevor IS more quahfied or supenor to the mcumbent or even whether he IS at the same level of skIll as the mcumbent. The sole Issue for thIS Board to determme IS whether the gnevor has the skIll and knowledge to perform the mam components ofthe Job at a mImmallevel of competence The Umon argued that the test for thIS Board to apply IS found m the case of Re Loebel and Ministry of Municipal Affairs and Housing, 1983, (February 15,1983), GSB #331/82. In that case, It was Said at page 18 In our view, the words "qualified to perform the work" must be interpreted broadly if we are to give any real meamng to the provisions of the Article. "Qualified to perform the work" must relate to the requirements of the Job in question. In the instant grievance, qualifications include educational background. knowledge of the functions of the Community Renewal Branch, the Ministry and Government generally; knowledge of all relevant legislations, knowledge of the contents, objectives and eligibility requirements of all specific programs offered by the branch; related experience dealing with Municipal councils and Municipal Officials, and good oral and wntten communicatIOn. The Board went on at page 21 to say the followmg. To determme if a surplus employee IS qualIfied to perform the work pursuant to Article 24.2.3 the Board accepts Management's argument of "present ability" to the extent of mimmum competence m all components of the job reqUirements. To adopt any higher test of present ability would be to destroy the significance of Article 24.2.3 That Article has been mutually agreed upon by the parties to benefit surplus employees by affordmg them certam preferential rights of appointment. Few, If any surplus employees would succeed in moving successfully from one Ministry to another, if the accepted test were more stringent than minimum competence in all of the major components of the job Such an interpretation does not mean that a surplus employee must possess skill and knowledge and all activities associated with the __-:t.... ~ 28 position, however, it does mean skills and knowledge of the main components of the position... In the mstant case the Employer has argued that the gnevor would be reqUired to attend a mandatory trarmng program of SIX weeks before he would be able to do the work. However, the eVIdence has clearly shown that only the first two weeks must be taken Immediately upon mre, the remarnmg four weeks to be taken at some pomt dunng the first few years of employment. All employees are therefore expected to have the present abIhty to do the work after the first two weeks of traImng. All of the Employer's WItnesses agree that the first two weeks of trammg would gIve somebody a good foundation for the Job The Umon also took the pOSItIon that the procedure followed by the Employer m decIdmg to deny the gnevor hIS bump was flawed. It rehed on the Hill case (infra) m support of hIS pOSItIOn that more mformatIOn could and should have been obtamed before a deCISIOn was made QuestIOns were raIsed by Mr Howe dunng the gnevor's evaluatIOn that were never properly answered. Mr Howe had some questIOns about whether the gnevor had actually testIfied as an expert WItness but dId not bother to seek an answer to that questIOn when It was clearly relevant to hIS conSIderatIOns. Mr Howe mterpreted the gnevor's resume and portfoho to SUIt hIS ends. He dId not make any mqumes about relevant areas that mIght have made a dIfference to ms determmatIOn. Mr Howe's actIons fell below the standard reqUired m amassmg and assessmg all of the mformatIon necessary to make a proper determmatIon of the gnevor's competence. Ifhe had asked the nght questIOns, he would have found out that the gnevor dId, m fact, have some of the background that he thought was lackmg. The reason for ms failure IS found m the eVIdence ofMr Kerr The Umon urged the Board to accept - ~ 29 Mr Kerr's eVIdence over that of Mr Howe's m that regard. Mr Kerr has nothmg to gam. He never met the gnevor before today so had no personal preference and no reason to assIst hIm. He came before tills heanng to tell the truth and that IS that he was sent to the meetmg to develop cntena to keep Abatement Officers out of IEB and not to determme whether the gnevor was qualIfied to bump mto the Job TheIr role was to buIld a wall around the IEB to keep Abatement Officers out and, in order to do that, they focused on areas like search warrants to JustIfy theIr exclUSIOn. Mr Howe's conclUSIOn was that the gnevor dId not have expenence m dehvenng cautIOn statements, executmg search warrants and generally conductmg forenSIC mvestIgatIOns. The Umon's argument focused on three general headmgs, enforcement, mvestIgatIOn and general. Dealmg first WIth the Issue of enforcement, Mr Bradbury testIfied that for the most part, IEB recruItment was aimed at pohce officers and persons m the MOEE WIth enforcement expenence. At first they were looking for people With ten years of enforcement expenence. Once they had ImtIated theIr own trammg program, they were prepared to accept people WIth five years of expenence In cross-exammatIon, he was asked where an employee would acqUIre such expenence and he Said, "m abatement" By ms answer he acknowledged that Abatement Officers have enforcement expenence. He worked m abatement and would know that. Indeed the eVIdence from Mr Howe, Mr Bradbury and Mr Kerr IS that most IEB mvestIgators came from abatement. Mr Bradbury's SItuatIOn IS, m fact, very SImilar to the gnevor's. He had ten years of expenence when he moved mto IEB, although he dId not have the supervISOry expenence that Mr Bazmet dId. The gnevor has been employed WIth the MOEE for twenty-five years and has held a vanety of Jobs. _...t ~ 30 He has been provmcIal officer dunng all of that tIme and has been charged WIth enforcmg the statutes, regulatIOn, pohcies and programs of the MOEE m that tIme. He has been mvolved In ISSUIng certIficates of approval, control orders, recommendmg legal actIOn and provIdmg expert eVIdence. He has had one week of trammg at the OPP college m Aylmer to learn about a varIety of Issues, mcludmg eVIdentIary procedures. In 1977 he took the MOEE trammg course In law enforcement and has taken other courses smce then. He has the reqmsIte knowledge of enforcement and the skills to do the Job With respect to mvestIgatIOns, the gnevor has been the first on the scene m numerous SItuatIOns. As first on the scene he IS also the first to start the mvestIgatIOn, mcludmg gathenng facts, askmg questIOns, speaking to WItnesses, takIng samples and preservmg eVIdence. All of tms IS WIth a VIew to possible prosecutIOn. The gnevor has extensIve expenence m collectmg samples and eVIdence, wmch Mr Bradbury conceded would be done accordmg to the same procedures as the IEB utIhzes. The gnevor was trained m the proper method of domg that durmg hIS Aylmer course and therefore has had and contInues to have mImmal competence m that area. The gnevor also has had extenSIve expenence m mtervIeWIng WItnesses, not only as the first on the scene at an envIronmental mCIdent but also In preparatIon for OMB heanngs. He has contacted and mtervIewed WItnesses, prepared WItnesses for heanng, represented the Mimstry at a hearmg, presented eVIdence and has been prepared to be an expert WItness hImself. An Issue was made about the defence about due dIhgence and the neceSSIty to be tramed to deal WIth Issues of that defence dunng an InvestIgatIOn. Mr Bradbury's eVIdence was most clear m tills regard and he agreed that Abatement Officers would ask ~ 31 slfmlar types of questIOns. There IS no questIOn that the gnevor has had expenence m mtervIewmg and questIOmng wItnesses WIth specIfic regard to the defence of due dIhgence. In any event Mr Bradbury saId that It was not mandatory but preferable expenence and so carmot be the baSIS upon whIch the gnevor was demed hIS bump Much was made about the Employer's pOSItIOn that Abatement Officers do not Issue cautIOn statements m the same marmer as IEB mvestIgators. Mr Bradbury testIfied that there IS a standard form that IS read to a WItness. The only mdependent thmkmg reqUired IS to msert the correct name of the act or acts allegedly VIOlated. There IS no doubt that the gnevor IS fully knowledgeable of all the envIronmental statutes mvolved and IS certamly competent to read a cautIOn statement from a standard form. The eVIdence has shown that the key m Issumg cautIOn statements IS knowledge of the legIslatIOn under whIch It they are bemg gIven and there has been no suggestIOn that the gnevor IS not knowledgeable of that legIslatIOn. Another area where Mr Howe found the gnevor defiCIent mvolves search warrants. Accordmg to Mr Kerr's eVIdence, It was deCIded to focus on them because they are one of the few basIS upon wmch the two pOSItIOns could be dIstmgUIshed. However, the Umon asked the Board to note Mr Bradbury's eVIdence that smce 1995 he has only been mvolved m obtammg and servmg two search warrants. ThIS Board should not accept the Employer's suggestIOn that sometmng that has been done tWIce m the past twelve years, the last tIme four years ago, could be conSIdered a core component of the Job If the Board were to accept the Employer's charactensatIOn of thIS Job duty, It would render ArtIcle 24 meanmgless. I ~ 32 Regardmg crown bnefs, the Umon took the posItIOn that once It IS estabhshed that the gnevor IS competent m the other aspects of the job, that IS eVIdence, WItness statements, technIcal support, collectmg samples and mtervIewmg WItnesses, the preparatIOn of the crown bnef flows naturally The bnef IS prepared m a standard format and It IS done by an 10 under the dIrect supervlSlon of the supervIsor and legal adVIsors. The bnef IS made up of all the elements that proceed It. All of the eVIdence, mcludmg any samples, cautIOn statements, WItness statements, warrants, etc., are mcluded. If someone IS competent enough to prepare all of those documents, puttmg them together m a crown bnef IS not a dIfficult task and cannot be rehed on to exclude the gnevor from the Job As the Waste Management Program Coordmator, the gnevor was responsible for prepanng sound, clear reports wIth defensible recommendatIOns, mcludmg recommended amendments to the legIslatIon, recommendatIOns for legal actIOn and techmcal reVIews. As an AIr QualIty Analyst he was charged WIth the responsibIhty of preparmg for pubhcatIon wntten and technIcal reports and memos. For ms Masters theSIS he dId an m-depth study and report of an envIronmental Issue. All of thIS eVIdence supports the fact that the gnevor knows how to wnte expert technIcal reports, recommend legal actIon, mtervIew WItnesses and generally collect all the InformatIOn needed to prepare a crown bnef. Just because the gnevor has not actually prepared a bnef does not necessarIly mean that he cannot. It was the Umon's pOSItIOn that he could prepare one ImmedIately and defimtIvely after two weeks of trammg. In general, as a supervIsor m the abatement branch, the gnevor was responsible for ensurmg comphance WIth the Mimstry's acts, regulatIOns, pohcIes and gUIdehnes. The gnevor was fully versed _.'::""" ~ 33 m all four aspects of that Job He had to ensure people comphed wIth the laws and assess whether there had been comphance. He had to do so by InVestIgatmg and mspectmg 10cahtIes to determme whether there had been comphance. As an EnvIronmental Officer the Job specIficatIOns state that he was to IdentIfy, monitor, mvestIgate and report on facihtIes. His dutIes and tasks m those posItIOns were httered WIth words like "mvestIgatIOn", "mspectIOn", "recommendatIon", "preparmg orders", "certIficates of approval", "momtonng", "collectmg eVIdence" All of those words are words used m the IO's Job wIth the IEB and mdIcate that, to a greater and lesser extent, they were Involved in domg the same work. Finally, the Umon took the posItIOn that anybody reportmg to work as a new 10 would be reqUIred to take a mandatory sIx-week tramIng program, two of them ImmedIately upon hire. If that program IS mandatory, then whether the gnevor was bumpIng mto the pOSItIOn through surplusmg or Job competItIOn, the Employer IS reqUired to proVIde mm With that two weeks of trammg. That IS theIr own pohcy It was the pOSItIOn of the Umon that, based on a reVIew of hIS expenence m the Mimstry for the past 25 years, the gnevor has the present abIlIty to do the Job In the alternatIve, the grievor would certamly have the present abIhty to do the Job after the two weeks of mandatory traming the Employer IS obhged to prOVIde The gnevor has met the threshold test and should be awarded the job retroactIve to the date of hIS grievance, Includmg payment for any lost wages. In support of ItS pOSItIOn the Umon relIed on the followmg cases Re Loebel and Ministry of ~ 34 Municipal Affairs and Housing (1983), GSB # 331/82 (Venty), Re Hill and Campbell and Ministry of Labour (1984), GSB #492/83 and 493/83 (R. Roberts), Re Smith and Ministry of Northern Development and Mines (1995), GSB #1625/93 (Kaplan). Mr Strang, counsel for the Employer, began by restatmg to thIS Board the fact that none of the cases rehed on by the partIes hold that the gnevor IS entItled to trammg. In the Hill and Campbell case (supra), all of the successful candIdates were to get some trammg. The case stands for the propOSItIOn that the famIharIzatIOn IS not traImng. Secondly, accordmg to the Umon, the Abatement Officers perform all of the same Job dutIes as mvestIgatIOn officers. It begs the questIOn, argued the Employer, If they are the same Job why one IS claSSIfied as an E05 and the other as an E04 The mvestIgator's Job IS a speCial Job WIth speCIal dutIes and IS dIstmct from an Abatement Officer's Job In thIS case we are dealmg WIth a umt created to meet specIahzed needs for 1l1vestIgatIon and prosecution. The Employer took the pOSItIOn that the processes used are fundamentally dIfferent m that theIr purpose IS to punIsh. There IS a possibihty for Jail and substantIal fines. Cnmmal rules of eVIdence apply, Charter Issues are relevant and defences such as stnct habilIty and due dihgence must be conSIdered. There IS no defense m dealIng with admmIstratIve actIOn. For example, If an Abatement Officer determmes that some company IS pollutmg the enVIronment, theIr role IS to stop the pollutIon. It IS theIr duty to help the company find ways to aVOId pollutmg the atmosphere. In prosecutIOns, If the company can estabhsh that It dId everythmg possible to prevent pollutIOn, the prosecutIOn fails. The order to stop mIght remam on file but the prosecutIOn for faIlure to obey the order is frustrated. ~"'-.- ~ ~ 35 The Employer also took the posItIOn that If the gnevor ever had trarmng m IEB Job dutIes, It was ten years ago and that was the tIme to bump Smce then thmgs have changed conSIderably and the gnevor carmot rely on InformatIOn he obtamed that long ago The Employer argued that the Hill and Campbell case (supra) IS of no asSIstance to the gnevor because It mvolved a reqUIrement that the gnevor be mInImally quahfied to perform the Job at an entry level. The dIfference between that language and the one before tms Board IS that, m the mstant case, there IS no reqUirement for traImng. The gnevor IS askmg to take over the Job of a quahfied person and dIfferent conSIderatIOns apply To the extent that some of the Job functIOns of an Abatement Officer overlap those of an 10, the Employer asked the Board to reVIew carefully the Job speCIficatIOns to note the dIfferences. For example, crown bnefs are an advanced level of preparatIOn for a prosecutIOn. They are essentIal to a successful prosecutIOn. The crown IS requued to make full dIsclosure but there IS no recIprocal duty on the accused. The Issue of absolute lIabIhty has changed and there IS now a mIddle ground that mvestIgatIOn officers must be aware of. The pomt IS that there IS a clear dIVISIon m the statutes between a prosecutIOn and a regulatory body There are dIfferent procedures and dIfferent rules and the gnevor does not have expenence m those rules. The Charter of Rights reqUires a dIfferent body of knowledge than that reqUIred by an Abatement Officer It IS SImply unreasonable to beheve that someone who took a course m 1987 could apply that knowledge m 1997, gIven the changes that have occurred m the law smce then. It was the pOSItIon of the Employer that It was up to the Board to make a factual determmatIOn of ! whether thIS gnevor can step 111 at the m111Imallevel. Mr Kerr Said he could not. He saId that he , - ~ 36 could not let somebody out on theIr own unless there were other people m the office to aSSISt. As well, notWIthstandmg the Umon's argument about two weeks trammg, the fact IS that the gnevor IS not entItled to It under the collectIve agreement. The details of the meetIng that Mr Howe and Mr Kerr attended are Irrelevant to the Issue of the gnevor's qualIfications. The meetmg was to estabhsh mImmal standards not only for the gnevor but for future dIsplacements. It was a maJor problem for the IEB at the tIme because If they were reqUIred to replace 10's WIth untramed officers, theu work might well be m Jeopardy They were attemptmg to come up WIth cntena agamst whIch to evaluate all bumps m the future The gnevor speCIfically was not accepted because he dId not have the knowledge or expenence to do a forenSIC mvestIgatIOn. He dId not have the knowledge or expenence to execute search warrants, take WItness statements or Issue cautIOn statements. Even at the hearmg It was clear that the gnevor does not understand the dIfference between abatement and IEB mvestIgatIOns. He mamtamed that they were essentially the same and that he could do both. The Employer rehed on the followmg cases. Re Dyer and Liquor Control Board of Ontario (1982), GSB #506/80 (Saltman), Re Allison and Ministry of Transportation and Communication (1984), GSB #393/83 (Roberts), Re Henderson and Ministry of Citizenship (1992), GSB #1097/91 and 1269/91 (Barrett) DECISION Before dealmg WIth the facts of the mstant case the pnncIples m the cases rehed on by the partIes are v- ' ~ 37 an appropnate startmg pomt for my deliberatIons. The appropnate test IS set out m the Loebel case (supra), and that IS whether the gnevor was quahfied to perform the work wIthm the meanmg of ArtIcle 24.2 3 In that case reference was made to the case of Heginbottom and Ministry of Revenue, GSB #647/81 (Samuels) at pages 19 and 20 The grievor has the fight to be assigned to a position if he fulfils the conditIOns under the Collective Agreement. He doesn't have to compete for the Job Article 24.2.3 makes it clear that the grievor is to be assigned to a position ifhe is qualified to perform the work. This is not an absolute provision. The grievor is not entitled only to a fair hearing: he IS to get the position if he can do the work. In the Henderson case (supra), It was stated at page 12 Article 24.2.3 is not aJob competition article and it IS clear that surplus employees need only have the nllmmum qualIfications to perform the essential duties of the position...This does not mean, however, that a new lower standard of what it means to be qualified has been introduced into the collective agreement. Article 24.2.3 speaks to present qualificatIOns, not those that could be obtained through extensive training...The incumbent m thiS position must have a mimmum level of competence from the outset because he must be deployed on the job from the outset.. Surplus Employees under this Collective Agreement are to be given extra consideration when applying for jobs. Present abIhty was defined m the Loebel case (supra) at page 21 as follows To determine if a surplus Employee is qualIfied to perform the work pursuant to Article 24.2.3, the Board accepts Management's argument of "present abilIty" to the extent of minimum competence in all components of the job reqUirements. To adapt any higher test of present ability would be to destroy the significance of Article 24.2.3 That article has been mutually agreed on by the Parties to benefit surplus employees by affording them certain preferential nghts of appointment. Few, if any, surplus employees would succeed in movmg successfully from one Ministry to another if the accepted test were more stringent than minimum competence in all of the major components of the job. Such an interpretation does not mean that a surplus employee must possess skill and knowledge in all actiVities associated With the position. However, it does need skills and knowledge of the main components ofthe position. Willie It IS clear that an evaluatIon of a surplus employee's quahficatIOns to bump are to be Judged on , the basIS of "present abIhty" that does not mclude a trammg or famIhanzatIOn penod, the Hill and l Campbell case stand for the propOSItIOn that there are exceptIons to that general rule It was stated at page 18 - ~ 38 With respect to this issue, the evidence showed that the Ministry approached the question of who might be qualIfied in a special sense. Ordinarily, "to determine if the surplus employee is qualified to perform the work pursuant to Article 22.2.3 [there must be] present ability' to the extent of minimal competence in all components of the Job reqUirements" re LoebeJ and Ministry of MunicipaJ Affairs and Housing (1993), GSB #331/82 (Verity), at 21 Here, the Ministry was not lookmg for "present abilIty" rather, It was looking for an employee who would possess "present abilIty" upon completIOn of a mandatory 10-week trammg course which was required to be completed by all persons hired on as OccupatIOnal Safety Health Officers. It was acknowledged that If either of the grievors had been successful they would have been put through this course. Based on the eVIdence before It that Board was satIsfied that one of the gnevors, Mr Hill, would have had the present abIhty to perform the work of an OccupatIOnal Health and Safety Officer 2 after the 10-week trammg course In the Smith case (supra), the gnevor was seekmg to bump mto a rehabIhtatIOn mspectors posItIOn after bemg surplused. UltImately ms gnevance was dIsmIssed because It was found that he dId not have the present abIhty to perform the work. However, the employer's argument m that case reaffirms the deCISIOn of the Board m the Hill and Campbell case. On page 22 of that declSlon the employer took the posItIOn that an employee bemg surplused was not entItled to any trarmng. It made reference to the Loebel case and the cases whIch subsequently followed It WIth the followmg comment: In that context, Hill and Campbell did not represent a change to the standard as the training that was given there was a mandatory and structured program which each new employee of that particular posItIon was reqUired to take. Exceptions of this kind aSide, employees could only exercise their Article 24 9 1 (d) rights If they had the abilIty to immediately perform the job Fmally, the Hill and Campbell case (supra), also stand for the propOSItIOn that there IS a certam standard of reVIew expected when the employer IS consIdenng a request to bump pursuant to a surplus notIce. On page 15 of that award It was stated. Turning, however, to the procedure followed by the Selection Board, there appeared to be ~'- ~ 39 certain deficiencies in the way m which the qualifications of the gnevors were evaluated. The grievors were surplused employees and were entitled to be evaluated as such. In makmg such an evaluation, it would seem appropnate to expect the mterviewers to have made every reasonable effort to ensure that they have before them all relevant information bearing upon the qualifications ofthe 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 senous determmation. It is not a case of promoting a government employee who already has ajob. It is a case of finding ajob for a government employee who, through no fault of his or her own, no longer has one. In the present case, the efforts of the interviewers to mform themselves regarding the qualifications of the gnevors fell below even the standard of care to be expected with respect to job competitions. As was stated m Re Cross and Ministry of Transportation and Communications (1982), GSB #339/81 (Jolhffe), More difficult to understand is the reluctance or unwIllmgness of Ministry officials to inform themselves more fully about candidates interviewed. This is not a question of reviewing hundreds of files from all over, as Mr Pettifor suggested. In this particular case it would have been extremely simple to look at the grievor's annual evaluations and equally simple to ask the Ministry of Natural Resources in the same area for information about Mr Lam and his performance...even if the true destination was safely reached, the driving procedures used to get there were neither correct nor efficient. If selection boards obJect to being well informed about candidates and persist m relymg almost entirely on interviews, they are over estimatmg their own powers of judgment on Sight. They are using a primitive approach to personnel selection and inVite more contests before this Board. .Id. at 15? The Board strongly suggested that even m a job competition the members of a selection board should undertake to inform themselves fully about the candidates. Applymg those facts to the mstance gnevance we first note that there IS no Issue WIth respect to many of the aspects of the Job of an Abatement Officer and a 10 WIth IEB The gnevor has had expenence m conductmg mvestIgatIOns mto offences of the Environmental Protection Act, The Ontario Water Resources Act, The Pesticides Act and The Environmental Assessment Act, theu regulatIOns and other related legIslatIon. He has obtained, exammed and analysed eVIdence, mcludmg financial records and books, eqUipment, waybIlls and manIfests, permIts, ledgers, etc. He has " ~ 40 collected samples for eVIdence of a vanety of matenals, mcludmg hazardous and non-hazardous solid and hqUId wastes. He has located, mtervIewed and taken statements from WItnesses, complamants and mdustry representatIves and has taken lead responsibIhty for a team of specIahsts m the collectIOn of eVIdence. He has an extenSIve knowledge of all of the legIslation that IO's would be expected to deal WIth. He has m the past shown ms abIhty to make mdependent declSlons, exercIsed Judgment m prepanng comprehenSIVe reports and recommendatIOns for further actIOn, dealt WIthJunsdIctIOnal Issues regardmg federal, mumcIpal and provmcIaI agenCIes, wntten comprehenSIve reports wmch have subsequently been adopted by the Mimstry, lIaIsed WIth staff of dIstnct and regIOnal offices to exchange mformatIOn on actIVItIes, is conversant WIth the computer and has partIcIpated m mvestIgatIOns as a team member As a provIncIal officer he has been mvolved WIth the collectIOn, secunty and preparatIOn of eVIdence for court proceedmgs, been prepared as an expert WItness for the crown and partICIpated on numerous commIttees, both mtra and mter Mimstry There IS no questIOn but that he has been a valuable employee over tIme and has obtamed more than the reqUiSIte educatIOnal qualIficatIOns. He has attended numerous workshops and semmars over the years and has kept hImself up to date m hIS field. The mam area of dIspute between the partIes seems to be focused on hIS abIhty to perform forenSIC mvestIgatIons ,wmch mcludes collectmg, processmg and preparmg eVIdence for tnal, mtervIewmg WItnesses, admImstenng cautIOn statements, executmg and servmg summons and preparmg crown bnefs. Before commentmg on the perceIVed defiCIencIes of the gnevor It should be noted that the Job ~ 41 specIficatIOn for 10 also mcludes a reqUirement for knowledge of the theory and practIces related to enVIronmental pollutIon and pollutIOn control technology, a basIC knowledge of mdustnal processes and operatIOns, effectIve commlillIcatIon skills, both orally and wntten, key powers of observatIOn, thoroughness and attentIon to detaIl, abihty to think logIcally, basIC computer and photography skills. There can be no questIOn gIven the gnevor's expenence and resume that he has all of those quahficatIOns. Indeed that IS what he has been domg for most of hIS twenty-five years WIth the Mimstry As well, It IS expected that all 10 would have good Judgment and tact m conductmg mvestIgatIOns WIth a mImmum of mput from a supervIsor, a hIgh level of Judgment In dealmg WIth mdustry, mumcIpahtIes, lawyers and Judges, m provIdmg mformatIOn and gUidance m relatIOn to propose charges and, as envIronmental mvestlgators,Judgment to Implement appropnate legal actIOn. There has been no suggestIOn that the gnevor does not have the Judgment reqUIred to perform the Job. I note specIfically these pomts on the Job specIficatIOns as proof that, except for the defiCIencIes rehed on by the Employer, the gnevor would appear to have all of the expenence and background m abatement, pollutIon and envIfonmentalIssues and related legIslatIOn that one would want m the Job at Issue. Dealmg now WIth the dIfferences between the Jobs the gnevor has held m the past and 10, It IS my opImon for the most part It IS a matter of degree rather than substance. The gnevor has been tramed and has, for years, actually been collectIng samples, mtervIewmg people and collecting InformatIOn about possible VIOlatIOns to the envIronmental protectIOn legIslatIOn. Mr Bradbury took pams to explain that the focus of the mvestIgatIOns m these CIrcumstances IS deCIdedly dIfferent from an IEB mvestIgatIOn and, as a result, the grIevor dId not appreciate some of the factors that an 10 must , ~ 42 always have regard to In partIcular, Mr Bradbury rehed on Issues concermng the Charter, the dIsclosure of InformatIon and procedures related to search and seIzure warrants. WhIle I accept hIS eVIdence about the dIfference In focus, I find It dIfficult to understand hIS refusal to accept the expenence the gnevor gamed as an Abatement Officer domg mvestIgatIOns. He, hImself, was an Abatement Officer who went duectly 1l1to the mvestIgatIons branch, based, I suspect, for the most part on his expenence m abatement. While I apprecIate that there may be a dIfference In the approach taken, I cannot accept hIS VIew that an Abatement Officer does not understand arId/or apply the same pnncIples. It mIght be that Mr Bazmet WIll need some InstructIOn as to how to conduct mtervIews m dIfferent SItuatIOns but that IS more a matter of supervISIOn and InstructIOn than trammg or famIlianzatIOn. It cannot be saId that he does not understand the fundamentals of intervIewmg people, collectmg eVIdence, mamtmmng a contInUIty of eVIdence and generally prepanng a case for prosecutIOn. It IS SImply a matter of the depth to whIch he has had to apply that knowledge m the past that IS an Issue. I accept the Employer and Mr Bradbury's eVIdence m partIcular that search and seIzure warrants are an effectIve and powerful tool of enforcement. Nevertheless I cannot Ignore the fact that over the last 12 years Mr Bradbury has only had recourse to them tWIce, the last tIme m 1991 A knowledge of and understandmg oftms tool IS no doubt essentIal for an mvestIgatIon's officer Nevertheless, It cannot be Said that It IS a core element of the Job gIven ItS mfrequent use In my VIew It cannot be relied on as grounds upon whIch to deny the gnevor the pOSItIon m these CIrcumstances. The crown bnefwas a contentIOUS Issue between the pmiIes. It was the pOSItIOn of the Employer that ~-~ ~ 43 the crown bnefs are sometillng umque to the IEB and a core element of any case that they would be prosecutmg. I agree. However, agam the eVIdence IS clear that there IS a standard format for these bnefs that IS found m a manual. A new employee need sImply follow the steps m the manual to prepare a crown bnef accord1l1g to theIr specIficatIOns. Therefore, the format of the bnef IS not sometmng beyond the competence of the gnevor The content of the bnef IS another matter As I understand it the bnef IS made up of all of the components of an mvestIgatIOn. It Includes the eVIdence to date or at least reference to It, WItness statements and cautIOnary statements that have been given concurrent wIth them as well as WItness hsts. All of that mformatIOn would have been amassed dunng the 1l1VestIgatIOn and would as a matter of course become part of the crown bnef. But as I understand It the crown bnef IS not prepared solely by an 10 but rather IS prepared subJect to the cooperatIon and supervISIon of others wIthm the department, mcludmg the officers, supervIsors and advIsors from the legal servICes branch of the government. GIven the number of checks and balances mherent in the preparatIOn of the bnef, I thmk the gnevor would reqUire supervlSlon m prepanng It but not trammg m the tradItIOnal sense. CautIOn statements to WItnesses were another area where the Employer found the grievor to be lacking. Again I carmot accept the Employer's assessment m tills regard. The cautIOn statements are read verbatIm from a notebook to the person bemg mtervIewed. The only mdependent Judgment mvolves a determmatIOn of what act and what provlSlons of what act wIll be mcluded. That IS a matter of knowledge of the legIslatIOn, whIch m the gnevor's case has never been at Issue. Once somebody has the reqUISIte knowledge to IdentIfy the act gIvmg nse to the VIOlatIOn, It IS SImply a matter of readmg a form to a WItness. The Employer argued that It IS not Just a matter of readmg the ~ ~ 44 cautIon statement but more a matter of understandmg when they would be appropnate. Agam, while that may be a matter for expenence, knowledge and Judgment, I do not beheve It IS somethmg that reqUIres trammg, but rather sImply supervlSlon m makmg the appropnate declSlon m the cIrcumstances. In summary, gIVen the WIde range of dutIes set out m the Job specIficatIOn, these few areas of concern m my VIew are not sufficIent to conclude that the gnevor IS unable to do the core reqUirements of the Job It IS my VIew that It IS sImply a matter, as Mr KelT testIfied, of supervISIOn rather than traInmg. In any event, like the Hill and Campbell case, the Employer has a mandatory traImng program wmch all employees must attend. My understandmg, based on the eVIdence before me, IS that every new employee to the department IS reqUIred to attend for the first two weeks of the traimng almost Immediately upon hIre. The remammg weeks are to be completed dUrIng the first two years of employment at the latest. If the first two weeks are a rnandatory trammg program SImilar to that m the Hill and Campbell case, the gnevor wIll no doubt be reqUIred to attend those two weeks of trammg before assummg any Job dutIes. There IS no questIOn m my mmd that, after the first two weeks, he would be capable of performlllg the core dutIes of the Job WIthout dIfficulty As has been stated before, thIS IS not a case of a Job competItIOn. Mr Bazmet IS not attemptmg to Improve his work SItuatIOn by applymg for a Job promotIOn. He IS SImply lookmg to mamtaIn his status based on ms years of expenence and trammg. The Employer has faIled to gIve full credit to hIm for those years of expenence. Much of that expenence mvolved mvestIgatmg the very types of -.' I ~ 45 vIOlatIOns that the IEB mvestIgates. He has a speCialIzed knowledge of envuonmental Issues, mcludmg the legIslatIOn relatmg to them, an asset that appears to have been overlooked or, at the least, undervalued. GIven the eVIdence before me, It IS abundantly clear that the process utihzed to evaluate the gnevor's competency was flawed from the outset. I accept Mr Kerr's eVIdence on thIS pomt. He had not met the gnevor before the heanng and had no reason to he on hIS behalf. His verSIOn of events was not shaken m cross-exammatIOn. The events occUITlng at the tIme gIve credence tf hIS story Even though they began theIr dehberatIOns at around 9'00 a.m., they dId not have the gnevor's CV or portfoho untIl after lunch. Even after they receIved It by fax, Mr, Kerr never actually read It or conSIdered the InformatIOn on It. One wonders what they dIscussed for three hours If It was not the gnevor and hIS quahficatIOns. The mescapable conclusIOn IS that, as Mr Kerr has testIfied, they dIscussed developmg exclUSIOnary cntena whIch they could then apply to the gnevor My opmIOn on tms matter IS remforced by the fact that, even after they had hIS portfoho and questIOns arose about hIS speCIfic expenence In some areas, no mqumes were made of the gnevor to satIsfy those concerns. To the extent that the Employer had questIOns about Mr Bazmet's expenence and/or abihty to perfornl some aspects of the Job, such as gI vmg expert eVIdence before a tribunal, It had an obhgatIOn to Inform Itself. It dId not do so It SImply mterpreted Mr Bazmet's portfoho and resume m a manner that allowed It to Ignore credIt m some areas and to penahze hIm m others WIthout knowmg whether It was a vahd exerCIse of theIr Judgment. Theu faIlure to do so leads to the f conclusIOn that they dId not evaluate hIm fairly m the CIrcumstances. ~ 46 The gnevances therefore are allowed. Mr Bazmet IS to be awarded the posItIon of InvestIgatIon Officer posItIon at the 05 level and IS to be compensated for all lost wages and benefits m the mtenm. I will remam seized in the event the parties encounter any difficulty In Implementmg thIS award Dated at Toronto, Ontano, this 14th day of April, 1998 ~ )w4&/ Loretta Mikus, Vice-ChaIr