HomeMy WebLinkAbout1997-0055.Bouchard.99-09-09 Decision
o NTARW EMPU) YES DE LA COURONNE
CROW"! EMPLOYEES DE L "()NTARW
GRIEVANCE COMMISSION DE
-- SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396
GSB # 0055/97
OPSEU # 97C203
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Bouchard)
Grievor
- and -
The Crown m RIght ofOntano
(Mimstry of EnvIronment and Energy)
Employer
BEFORE R. Brown Vice ChaIr
FOR THE E. Holmes
GRIEVOR Ryder, Wnght, BlaIr & Doyle
Bamsters & SOlICItorS
FOR THE J Cocker
EMPLOYER Legal ServIces Branch
Management Board Secretanat
HEARING February 3 1999
Apnl7 8 9 12,20 1999
June 2, 23 24 30 1999
July 14 1999
Michel Bouchard was employed by the Mimstry of the EnvIronment as an aIr qualIty techmcIan
m Cornwall from 1979 unTIl 1997 when hIS pOSITIOn was declared surplus. He receIved a surplus
nOTIce m January and ceased workmg m July As an aIr qualIty technIcIan, Mr Bouchard was
classIfied as an envIronmental officer 4 (E04) After receIvmg the surplus nOTIce, he declIned an
offer of employment as a bilIngual semor envIronmental officer at the Spills ActIon Centre
(SAC) m Toronto, also an E04 Job The umon contends Mr Bouchard was qualIfied to work
as an E04 abatement officer and, therefore, should have been allowed to bump the least semor
abatement officer m Cornwall Marc Robert, an abatement officer at that locatIOn Jumor to the
gnevor attended most days of the heanng and partIcIpated actIvely when m attendance
The sole Issue IS whether Mr Bouchard was "qualIfied" to work as an abatement
officer WItilln the meamng of artIcle 20 4 1 of the collecTIve agreement. In contending Mr
Bouchard met thIs standard, the umon advanced two arguments. The first contenTIon IS that the
gnevor was qualIfied to work as an E04 abatement officer Without any addiTIonal traImng. In the
alternaTIve, the umon contends he would have been qualIfied If gIven the traImng offered to all
employees who assume the role of abatement officer Accordmg to thIs alternaTIve argument, the
gnevor was qualIfied WIthm the meamng of artIcle 24 4 1 because he was no less qualIfied than
some one appomted to fill a vacancy who would be offered thIS traInmg.
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The pOSITIOn specIficaTIon for an E04 abatement officer IdenTIfies four categones of dutIes, WIth
a genenc descnpTIon for each category whIch IS followed by a detailed lIst of tasks. The general
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descnpTIon for each category and the percentage of tIme spent on the related dutIes are as
follows.
1 Under the mImmal supervIsIon of the supervIsor, IdenTIfy complex problems
and solutIOns, provIde consultaTIve advIce to a wIde vanety of contacts, and
assIst m the management of complex Issues (25%);
2 Inspect and momtor water supplIes and sources of polluTIon mcluding spills
for complIance With envIronmental legIslaTIon (35%);
3 IdentIfy and report on water supplIes and a wIde vanety of sources of
polluTIon (envIronmental contammants) and recommend and Implement
abatement programs under mImmal directIon at mdustnal, mumcIpal,
agncultural, commercIal and pnvate sources (25%); and
4 Perform other related dUTIes (15%)
The pOSITIOn specIficaTIon contaIns the folloWing descnpTIon of the reqUIred skills and
knowledge;
SIgmficant relevant expenence m the envIronmental field With an
extensIve knowledge of the pnncIpals and practIces of mdustnal and mumcIpal
envIronmental control, water supply systems, polluTIon abatement, and land use
planmng praCTIces, and extensIve knowledge of applIcable envIronmental
legIslaTIon and Mimstry polIcIes and procedures IS reqUIred, knowledge of
mdustnal processes, mumcIpal water supply systems, sewage systems and
waste management; valId dnver's lIcense (G2level or above); an abilIty to relate
theones and pnncIples to pracTIcal expenence IS reqUIred m resolvmg SenSITIVe,
complex or contenTIOUS problems, well developed oral and wntten
commumcaTIon skills to provIde mformaTIon and techmcal advIce, workmg
knowledge of software applIcaTIons and data entry skills as they apply to the
Job skilled m techmcal report wnTIng, samplIng and mterpretatIOn of results.
The determmaTIon that the gnevor was not qualIfied to be an abatement officer was
made by Robert Shaw Before becommg dIrector of the mmIstry's central regIOn m February of
1998 Mr Shaw served a three-year secondment m the office of the deputy mImster where he
co-ordmated two phases of down sIzmg, one m 1995 and the other m 1997 Begmmng m 1975
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he held vanous pOSITIOnS m the techmcal support sectIon of the central regIon, mcluding sectIon
manager Mr Shaw tesTIfied he has dealt WIth abatement officers dunng most of ills career
In January of 1997 Mr Shaw completed a form staTIng why he had determmed the
gnevor was not mImmally qualIfied for the contested Job Under the heading "DutIes and related
tasks of Job willch surplus person not qualIfied/able to perform," Mr Shaw wrote
. IdenTIficaTIon and resoluTIon of complex abatement Issues,
. mspectIOn and momtonng of facIlItIes (sewage parks/waterworks/waste
disposal sItes/industnal discharges)
The followmg entry appears on the form under the heading "Skills and expenence lackmg"
. extensIve knowledge of mdustnal and mumcIpal envIronmental controls,
water supply systems, polluTIon abatement processes,
. extensIve knowledge of applIcable envIronmental legIslaTIon, mImstry
polIcIes and procedures (e.g. complIance polIcy delIvery strategIes)
Mr Shaw tesTIfied the pnmary role of an abatement officer IS to determme whether a
vIOlatIOn has occurred and, If so, to decIde what actIOn IS reqUIred to achIeve complIance To
perform tills role, one must know the processes utilIzed at polluTIon sources, the applIcable
legIslaTIon, and the mmIstry's complIance polIcy and delIvery strategIes. The complIance polIcy IS
a genenc procedure utilIzed to acilleve voluntary or mandatory complIance. There IS a delIvery
strategy for each type of polluTIon. Accordmg to Mr Shaw an aIr qUalIty techmcIan IS not
reqUIred to determme whether a vIOlatIOn has occurred or how to abate one, and such an
employee does not reqUIre the same knowledge as an abatement officer WIth the exceptIOn of
the delIvery strategy for aIr polluTIon.
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The posItIOn specIficaTIon for an aIr qUalIty techmcIan, the pOSITIOn held by the gnevor
throughout ills career With the mImstry contaIns the followmg descnpTIon of the purpose of the
Job
In a semor role, the mcumbent selects, mstalls, operates and mamtaIns a regIonal
network of aIr qualIty depOSITIOn and meteorologIcal mstruments to provIde
envIronmental momtonng data to support the regIon's abatement programs and
to determme ambIent aIr qualIty. undertakes specIal momtonng and samplIng
surveys to support Mimstry programs such as the provmce's aCId and tOXiC
disposITIon studies and deals mdependently With unusual or unpredIctable Issues
and occurrences.
As to the skills and knowledge reqUIred to fulfill tills role, the pOSITIOn specIficaTIon states
Demonstrated expenence m the envIronmental field With extensIve knowledge of
the theory pnncIples and praCTIces of aIr qualIty survey and assessment
techmques and the selecTIon, repaIr trouble shooTIng, and maIntenance of a
Wide vanety of complex aIr qUalIty and depOSITIOn momtonng and telemetry
systems. The techmcal knowledge and abilIty to operate mdependently m the
field. A valId Grade 2 or illgher Ontano dnver's lIcense and good phYSICal
condiTIon are reqUIred to perform mstallaTIon and mamtenance dUTIes.
Work reqUIres the techmcal expertIse, flexibilIty and depth of
background to deal mdependently With a wIde vanety of unpredictable
eqUIpment and momtonng problems relaTIng to aIr qUalIty evaluaTIon and
assessment where the mdivIdual's knowledge may be the only Immediate guIde
to actIon. ThIS would mclude
. an extensIve knowledge of the theory and praCTIce of electromcs
and telemetry technology for trouble shooTIng and repaIr of
electromc CIrcUIt boards to the ChIP level,
. an extensIve knowledge of the theory and practIce of
mstrumentaTIon technology to trouble shoot and repaIr a wIde
vanety of complex aIr qualIty and meteorologIcal mstruments,
. manual dextenty and apTItude to assemble components and sub-
components, samplIng mamfolds and meteorologIcal eqUIpment and
to operate a Wide vanety of calibratIOn, tesTIng, safety and repaIr
eqUIpment;
. working knowledge of electncal and buildmg codes and safety
regulaTIons,
. abilIty to plan and orgamze work schedules and set pnontIes;
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. demonstrated leadersillp and good oral and wntten commumcatIOn
skills,
. a knowledge of the rules of eVIdence and wItness conduct;
. mature Judgment, tact and the abilIty to deal With people mcluding
contractors and sIte operators,
. an extensIve knowledge of mIcro/mIm computer operaTIon and
assocIated software and theIr practIcal applIcatIOn to envIronmental
telemetry systems.
The umon's contenTIon that Mr Bouchard IS qualIfied to be an abatement officer IS not
based solely upon ills performance of the dUTIes of an aIr qualIty technIcIan. Rather umon
counsel claIms the gnevor acqUIred the reqUIsIte skill and knowledge from a combmaTIon of five
sources (1) working m mdustry before JOlmng the mImstry. (2) attending courses relaTIng to
abatement; (3) partIcIpatmg m the work of the Cornwall AIr Strategy Working Group (4)
mteractIng daily With abatement staff at the Cornwall office; and (5) accompanymg abatement
officers as they camed out theIr dUTIes.
After compleTIng a course of study m process control at St. Lawrence College m 1972,
Mr Bouchard worked for Courtaulds Canada and Domtar Pulp and Paper both located m
Cornwall. In an employee portfolIo completed m January of 1997 the gnevor described ills
work at Courtaulds from 1972 to 1978 as follows
SupervIsor of 45 staff m the productIon of nylon. The process mvolved the
manufacture of nylon spInned yam from the first phase of nylon polymer pellets
to the final nylon yam producTIon. I was supervIsor on a heavily umomzed
operatIOn. Courtaulds employed over 3000 personnel m the early 1960s and
downsIzed gradually I also worked m process control for all Courtaulds
Canada m the support of the steam plant operaTIon rayon manufactunng, fiber
manufactunng. My dUTIes dunng that penod were to maIntaIn computer and
control process eqUIpment for the total operatIOn of Courtaulds Canada. I
worked amongst a team of 5 people who mamtamed plant operatIOn under
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qualIty control and process control Worked on the most advanced technology
m the mterfacmg of computer network to real tIme process control.
As to hIS work WIth Domtar from May of 1978 to May of 1979 the gnevor wrote m hIS
portfolIo
Process Control EngIneer Mamtam and support all process computers,
controls, mterfacmg WIth the fabncaTIon of paper Also mamtaIned all the energy
plants m the mill such as theIr producTIon of steam for the process and heaTIng
systems. Also mamtamed theIr recovery boiler mcmerator calcmer and
copeland plant. Worked With chemIcals control such as cWonne caUSTIC,
amoma, chlorate (explosIves) CS2, DMA. Worked wIth dIgesters. Worked
With electromc, dIgItal pneumaTIc, computer software development to mterface
real tIme systems to producTIon control Also Yf,orked on pollution control
equipment. (emphasIs added)
Mr Bouchard tesTIfied he had responsibilIty for the enTIre Courtaulds plant when he
worked on the mght sillft. Tills mcluded responsibilIty for aIr emISSIons, spills and disposal of
waste matenal, because members of Courtaulds envIronmental control group did not work at
mght. Asked m cross-exammaTIon what thIs group did, the gnevor answered. "They kept track
of envIronmental Issues--I don't know" He could not recall what legIslaTIon was m place at the
TIme. As to Domtar Mr Bouchard tesTIfied he dealt WIth hydrogen sulfide emISSIons, waste
water treatment, run-off from bark and spills. In cross-exammaTIon, the gnevor saId he dId not
know whether Domtar had an envIronmental group
Dunng ills years With the mImstry Mr Bouchard has taken a number of courses offered
by the Mimstry Some of these courses are among those attended by abatement officers.
Accordmg to Mr Bouchard, he attended two week-long semmars on spIll and emergency
response, one m June of 1986 and the other m December of the same year The gnevor testIfied
these courses dealt WIth the same subJect matter Mr Bouchard also testIfied about attendmg
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two week-long courses on envIronmental law one m October of 1989 and the other m
September of 1992 It appears these two courses also dealt largely WIth the same subJect
matter Accordmg to Mr Shaw the one m 1989 probably was the precursor of the one m
1992. The gnevor tesTIfied about taking a one-day course on radiaTIon spIlls and releases m
1993 and a one-day course on the EnvIronmental Bill of RIghts m 1994 CertIficates showmg
Mr Bouchard had completed some of these courses were entered m eVIdence His tesTImony
about compleTIng the other courses was challenged by Mr Robert m argument but was not
contradIcted by any eVIdence
In cross-exammaTIon, Mr Bouchard was asked a number of quesTIons about subJects m
willch he had been traIned. The folloWing examples are representaTIve Asked Ifhe had been
tramed m the tOpICS on the outlIne for the 1986 spIlls course, he answered. "I have a certIficate
from the course. I can't recall exactly" Asked how he would IdentIfy the contammant from an
overturned truck, he saId he would speak to the polIce officers or firefighters at the scene The
gnevor could not recall any detaIls as to what the Environmental Protection Act says about
spills. Asked about the defense of due dilIgence, willch exculpates someone who commIts a
vIOlatIOn despIte exercIsmg reasonable care, the gnevor saId It related to "an offender who has
commItted a vIOlaTIon purposely" He was unable to name any type of proJect willch would
reqUIre an envIronmental assessment. Asked to describe the proper procedure for dIsposmg of
lIqUId waste off-sIte, he saId that he could not recall.
In addItIOn to completmg the courses taken by Mr Bouchard, new abatement officers
take a number of other mmIstry courses and work under the watchful eye of those WIth more
expenence Some officers start domg abatement work at the E02 level, others at the E03 level
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and still others at the E04 level. Whatever the pomt of entry new abatement officers undergo a
trammg program compnsed of a senes of 100 level courses, offered by the mmIstry and on-the
Job tutelage from seasoned officers and supervIsors. New officers take the full range of 100
level courses With mmor excepTIon. An officer may be exempted from a course If ills or her
background renders It redundant.
Mr Robert completed the followmg mImstry courses not taken by the gnevor
. Wastewater Treatment
. Industnal Waste Water Treatment
. DnnkIng Water Treatment
. Waste Management
. Cleanup of Contammated SItes
. ACTIvated Sludge Treatment
. PIts and Quames
. EnvIronmental Industnes
. DelIvery StrategIes
. Approvals Reform
. Hauled Sewage-SItes and Systems
. Workplace Hazardous Matenals InformatIOn
The eVIdence does not mdIcate whether all of these courses are at the 100 level
Robert HellIar was abatement supervIsor m Cornwall from 1985 to 1995 and dIstnct
manager there from 1995 to 1997 He testIfied a new officer generally takes all of the reqUIred
courses m the first year on the Job According to illm, the duraTIon of the tutelage program vanes
from office to office wIthIn the mImstry He also tesTIfied a new employee "after a year or so
starts to become more comfortable" m carrymg out the dUTIes of an abatement officer Asked m
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cross-exammaTIon whether Mr Bouchard had "much the same type of background" as people
illred to be abatement officers, Mr HellIar answered m the affirmaTIve
Mr Shaw was asked m exammaTIon-m-chIef about how much traImng the gnevor would
reqUIre to funcTIon as an E04 abatement officer He answered that people hIred at the E02
level normally take eIghteen to twenty-four months to reach the E04 level, With the mImmum
bemg twelve months.
Mr Bouchard was a member of the Cornwall AIr Strategy Working Group (CASWG),
a working group of abatement and techmcal staff whIch developed strategIes for abaTIng aIr
polluTIon problems m Cornwall. It was created m 1991 and conTInued to functIon when the
gnevor was declared surplus. As a member of tills commIttee, he partIcIpated m plant tours
conducted to IdentIfy emISSIon sources and attended meetmgs where abatement strategIes were
discussed. Robert HellIar also a member of the commIttee, tesTIfied the gnevor's role on It was
that of an aIr qualIty techmcIan. As to mformal mteraCTIon on the Job throughout most of ills
employment Mr Bouchard's base was an open-concept office willch he shared With abatement
staff
Mr Bouchard tesTIfied he attended more than five spills to "help out" abatement staff.
SpecIfically menTIoned where an oil spill at Umversal Termmals and a truck accIdent at Curry
Hill. Documents relaTIng to the latter spill name the abatement officer mvolved, Rheal DelaqUIs,
but not the gnevor He also tesTIfied about "gomg along" With abatement officers on mspecTIons
of sewage works m Cornwall, Hawkesbury and L'Ongnal and on mspecTIons of water works m
Hawkesbury and Cornwall. He vIsIted the Cornwall water works daIly to attend to
meteorologIcal eqUIpment. He also testIfied about accompanymg abatement staff on mspectIOns
10
of waste disposal sItes and PCB storage sItes, but he did not say willch ones. In hIS tesTImony
the gnevor provIded few If any details of what he did on any of these occaSIOns.
In cross-exammaTIon, Mr Bouchard was asked about some of the sItes he claImed to
have mspected. Asked If there was any dIfference m funcTIon between the Cornwall and
Hawkesbury sewage plants, he replIed. "I doubt It." Mr BIShop testIfied Cornwall has a
pnmary treatment plant and Hawkesbury has a secondary treatment plant. According to hIm,
the difference IS an ObVIOUS one of willch an abatement officer should be aware. Umon counsel
obJected to Mr BIShop's testImony on the grounds that the gnevor had not been told m cross-
exammaTIon that ills testImony would be contradicted. As the gnevor m essence admItted not
knowmg whether there was a dIfference, I do not VIew Mr BIShop's testImony that a difference
eXists to be contradictory Accordingly the obJectIOn IS dismIssed.
Mr Bouchard also was cross-exammed about ills tesTImony at a heanng on September
4 1984 dealIng With a classIficaTIon gnevance m willch he claImed to be performmg the work of
a systems officer Umon counsel also obJected to thIS lIne of quesTIonmg. The Board's decIsIOn,
dated October 31 1984 mdIcates the gnevor "estImated" that from 1979 to 1983 "the amount
of tIme he devoted to the [systems] proJect grew from 25% to 75% " I ruled thIS summary of
the gnevor's eVIdence was admIssible only to the extent It was adopted m ills tesTImony before
me. He was asked whether he now belIeved the eSTImate recorded m the decIsIon to be true
Rather than disavoWing It, he replIed that he had done a lot of the systems work on ills own
TIme The decIsIon mdIcated he was able to devote progressIvely more TIme to systems work
because the resulTIng automaTIon reduced the TIme reqUIred for manually checking momtonng
staTIons. Asked Ifhe had tesTIfied to thIS effect, the gnevor saId he could not recall
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Robert HellIar who took charge of abatement m Cornwall m 1985 tesTIfied he was not
aware ofMr Bouchard domg any abatement work other than attending a few spills. Paul EllIOtt
was the gnevor's direct supervIsor from January of 1988 until ills layoffm July of 1997 The
supervIsor was based m Kmgston whereas the employee worked m Cornwall, but "they talked
frequently through each week," according to Mr EllIOtt. Paul EllIott tesTIfied he was not aware
of the gnevor domg abatement work. NeIther Mr HellIar nor Mr EllIott have any knowledge
ofMr Bouchard's work m the years ImmedIately after he Jomed the mmIstry m 1979 Asked m
cross-exammaTIon whether abatement work compnsed a larger percentage of ills dutIes m those
early years than later m hIS career Mr Bouchard replIed It was difficult to say
Any abatement work done by the gnevor IS not recorded m the documentary eVIdence
presented at the heanng. A memo from Mr Bouchard to Mr EllIott, entItled "ProJectIOn of
Workload--June 1991 to November 1991 " states "lIase WIth abatement m Cornwall to
establIsh pomt source momtonng and help to produce cleaner aIr" but the memo contams no
further reference to abatement work. Asked about thIs omISSIOn m cross-exammatIOn, the
gnevor saId the memo lIsted only work willch was "on top of regular dUTIes." In another memo
to ills supervIsor, enTItled "The EvoluTIon of AIr QualIty Assessment Cornwall DIStnct Office
1979-92," the gnevor mentIOned CASWG and "second-lIne" emergency response, but made
no menTIon of partIcIpatmg m mspecTIons or other abatement work except m a support capacIty
Asked about thIS omIssIon, the gnevor SaId It was "probably a mIstake" In the employee
portfolIo compIled by the gnevor m January of 1997 he made no menTIon of attending spills or
partIcIpaTIng m mspecTIons.
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An occurrence report IS generated to document every notIficaTIon, complaInt and spIll.
Mr Bouchard tesTIfied he has Issued occurrence reports, "probably a lot of them," mcludmg
some between 1990 and 1997 NeIther Mr HellIar nor Mr EllIott can recall any occurrence
reports Issued by the gnevor All occurrence reports smce 1990 are recorded m the ORIS
computer system. A search of ORIS conducted by Mr Robert dIsclosed one occurrence
"reported" by the gnevor mvolvmg hIgh S02 readmgs, but no occurrences to willch he was
"assIgned" as the officer responsible for abatement.
Nine performance appraIsals, the earlIest from March of 1980 and the latest from
December of 1994 were entered m eVIdence The only menTIon of abatement work IS m the
most recent appraIsal Under the headmg of "Career Development," It states "Abatement
traImng With the Cornwall DIStnct Office."
In June of 1996 Mr Bouchard proposed an exchange of dUTIes between illmself and an
E04 abatement officer Jeff Columbus. In an e-mail to Paul EllIott setTIng out tills proposal, the
gnevor revIewed ills illstory m both pnvate mdustry and the mImstry mcluding the abatement
courses he had taken. There IS no menTIon of ills havmg done abatement work. Jeff Columbus
also raIsed the Idea of exchangIng dUTIes With the gnevor m an e-mail to Robert HellIar In
respondmg to Mr Columbus, Mr HellIar stated he supported the Idea m pnncIple but was not
willIng to Implement It dunng a TIme of staff reductIons. In ills tesTImony Mr HellIar conceded
that expenence as an aIr qualIty technIcIan would have been valuable m domg abatement work.
He testIfied he supported the proposed exchange as a means of career development. Asked If
such an exchange would have mvolved the gnevor assummg the full responsibihty of an
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abatement officer Mr HellIar saId the gnevor would have needed traImng and a lot of
supervIsIon.
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The umon's pnmary argument IS that the gnevor meets the test of "present abihty" expounded m
OPSEU (Loebel) andMinistlY of Municipal Affairs and Housing dated Feb 15 1983
GSB No 331/82 (Venty) Speaking for the maJonty m Loebel Mr Venty wrote
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 minimum competence m all components of the Job
reqUIrements. To adopt any hIgher test of present abilIty would be to destroy
the sIgmficance of ArtIcle 24.2.3 That ArtIcle has been mutually agreed upon
by the PartIes to benefit surplus employees by affording them certam preferenTIal
nghts of appomtment. Few If any surplus employees would succeed m movmg
from one Mimstry to another If the accepted test were more stnngent than
mmImum competence m all of the maJor components of the Job (pages 21 and
22, emphasIs added)
Mr Venty went on to address the matter oftraInmg:
There IS no doubt Dr Loebel could have become qualIfied to perform the Job m
TIme However that IS not the Issue before tills Board. In the present wording of
artIcle 24.2 3 there is no provision for afamiliarization or training period
(page 23 emphasIs added)
In January of 1977 dId Mr Bouchard have the "present abIlIty" to work as an E04
abatement officer? His expenence as an aIr qUalIty techmcIan, standing alone, dId not qUalIfy illm
for the Job he seeks. ThIS expenence would be useful to an abatement officer but would not be
sufficIent. In performmg the dUTIes of an aIr qUalIty techmcIan, the gnevor supported abatement
actIvITIeS by provIding momtonng data, but he was not directly mvolved m determImng whether
vIOlatIOns eXisted or m abaTIng them. Moreover he did not acqUIre a sufficIent understandmg of
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eIther the full range of mdustnal and mumcIpal processes overseen by abatement officers or the
legIslaTIon they apply
Umon counsel contends any deficIencIes were remedied m five ways. The first IS Mr
Bouchard's work at Courtaulds and Domtar Tills expenence gave hIm a good grasp of process
control, mcluding the process element of polluTIon control, m two mdustnes. What he leamed
may have some apphcaTIon to other mdustnal or mumcIpal enterpnses, but It falls short of gIvmg
illm an adequate understanding of all types of regulated actIvITIes. The gnevor's mabihty to name
the then apphcable legIslaTIon, and hIS lack of knowledge about the envIronmental groups at
these two compames, suggest he gaIned httle, If any understanding of envIronmental legIslaTIon
from these Jobs.
While m the employ of the Mimstry Mr Bouchard took courses on spills,
envIronmental law m general, and the Environmental Bill of Rights m partIcular His answers
to quesTIons on these subJects suggest he has not retamed much of what he learned. As the
maJonty of these courses were taken between five and mne years before he was laId off, It IS
reasonable to conclude most of thIS loss of knowledge occurred before the layoff, rather than m
the two years smce I note also the gnevor has not completed the full range of 100 level courses
whIch abatement officers are reqUIred to take, mcluding courses deahng WIth such matters as
sewage plants and water treatment.
The gnevor's tesTImony about "helpmg out" or "gomg along" on spill responses and
mspecTIons mdIcates he played only a secondary role on these occaSIOns, perhaps as an
observer ThIS conclusIOn IS buttressed by ills mabihty to dISTInguIsh between the treatment
processes used at sewage works m Cornwall and Hawkesbury where he attended mspectIOns
15
In addiTIon, the nature and extent of ills mvolvement m abatement actIvITIeS was not sIgmficant
enough for illm to menTIon It m the proJectIon of future work prepared m 1991 m the reVIew of
past work prepared m 1992, m the Job exchange proposal--specIfically relaTIng to abatement
work--prepared m 1996 or m the employee portfolIo prepared m 1997 ThIS work also was
not menTIoned m any of mne employee appraIsals and, With very mmor excepTIon, was not
known to Messrs Helhar or EllIott. The combmed effect of all of thIs eVIdence IS to suggest the
gnevor's mvolvement m abatement work was not sIgmficant.
As to the gnevor's mvolvement m CASWG, the eVIdence mdicates hIS pnmary role was
m provIding techmcal support and that he had httle dIrect mvolvement m abatement aCTIVITIes.
There IS no eVIdence as to the substance of hIS day-to-day mteractIOn WIth abatement staffm the
office space he shared WIth them.
The foregomg analysIs leads me to conclude Mr Bouchard did not have the reqUIred
understandmg of mdustnal and mumcIpal enterpnse and of envIronmental law and procedure. In
the words of Loebel he lacked the "present abihty" to funcTIon as an E04 abatement officer
III
The umon's alternaTIve argument IS that the Mr Bouchard falls WithIn an exceptIOn to the test of
"present abIhty" In thIs regard, Counsel referred to a senes of cases begInnmg WIth OPSEU
(Hill and Campbell) and Ministly of Labour dated Oct. 12, 1984 GSB No 492/83
(Roberts), a case mvolvmg vacant pOSITIOns. Havmg been declared surplus, the two gnevors
sought work as occupatIOnal health and safety officers. All candIdates appomted to thIS pOSITIOn
underwent a ten-week traImng course The argument advanced by the employer m Hill and
Campbell was summanzed by Mr Roberts as follows
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Here, the Mimstry was not looking for "present abilIty" rather It was looking
for an employee who would possess present "present abIhty" upon completIOn
of a mandatory ten-week traImng course willch was reqUIred to be completed
by all persons illred as OccupaTIonal Health and Safety Officers. It was
acknowledged that If eIther of the gnevors had been successful, they would
have been put through tills course (page 19)
In other words, the employer conceded the gnevors should not be deemed unquahfied merely
because they had not completed the mImstry's traImng program. The employer's argument was
that the gnevors lacked the basIc quahficaTIons reqUIred to be illred and undergo thIs traInmg.
Mr Roberts agreed wIth respect to one gnevor but not the other GIven the employer's
conceSSIOn about It'S traImng program, the board was not called upon to decIde whether the
lack of such traImng rendered an employee unquahfied, and Mr Roberts reframed from domg
so Accordingly If Hill and Campbell recognIzes an excepTIon to the test of "present abihty"
one whIch apphes where all new appomtees undergo mandatory traImng, the excepTIon was
created by way of employer conceSSIOn rather than Board rulmg. It mIght be noted the
conceSSIOn was made m the context of a surplus employee fillmg a vacancy not m the context of
one employee displacmg another
In OPSEU (Smith) and Ministry of Northern Development dated Feb 8 1995
GSB No 1625/93 (Kaplan), the gnevor sought to dIsplace another employee As m Smith and
Campbell the relevance of a mandatory traInmg program for new appomtees was addressed
by counsel but not by the Board. Mr Kaplan summanzed management's argument about
traImng as follows.
The standard whIch the Board has consIstently apphed m cases of thIS kind, m
the employer's VIew IS present abihty to perform all of the funcTIons of the Job
ThIS standard, employer counsel argued, was made clear m the Loebel case
and m the cases willch followed. In that context, Hill and Campbell did not
represent a change m the standard as the traImng that was gIven there was a
mandatory and structured program whIch each new employee of that partIcular
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posItIOn was reqUIred to take ExcepTIons of tills kind aSIde, employees could
only exerCIse theIr ArtIcle 24.91 nghts If they had the abihty to Immediately
perform the Job The fact that they had the abihty to learn the Job at some future
date was not an appropnate consIderatIOn to take mto account. (pages 22 and
23)
As artIcle 24 9 1 dealt WIth one employee displacmg another thIS passage mIght be read as
suggeSTIng the employer acknowledged an excepTIon to the test of present abihty apphed m the
context of such a displacement. However any such acknowledgment appears to be
contradIcted by employer counsel m another submIssIon recorded by the Board.
There was an mcumbent m the posItIOn--and counsel noted m passmg that many
of the cases rehed upon by the umon concerned attempts to bump mto vacant
Jobs
--and before that mcumbent was bumped the Board should, counsel argued,
be absolutely certain that the employee exercising bumping rights Yf,as
ready and able to begin Yf,ork on the job (page 26 emphasIs added)
In short, the Board's summary of the employer's argument m Smith suggests management
eqUIvocated as to whether an exceptIOn to the test of present abilIty applIed m the scenano of
one employee seeking to bump another Saymg notillng about any such excepTIon, the Board
dismIssed the gnevance.
The last case m thIs senes, and the one upon willch umon counsel rehes most heavily IS
OP SEU (Bazinet) and MinistlY of Environment and Energy dated Apnl 14 1998 (Mikus)
The gnevor m that case sought to displace an mvesTIgaTIons officer after bemg declared surplus.
All employees appomted to thIS pOSITIOn took SIX weeks of trammg, two weeks at the outset and
the remaImng four weeks spread over the course of two years. The employer contended the
gnevor was unquahfied because he dId not know what was taught dunng the first two weeks.
Havmg revIewed the relevant legal pnncIples and the eVIdence, Ms. Mikus
18
apphed the law to the facts before her She first ruled Mr BazInet was qualIfied to do the Job he
desIred Without any traImng:
In summary gIven the Wide range of dUTIes set out In the Job specIficaTIon [the
employer's] few areas of concern are not sufficIent to conclude the gnevor IS
unable to do the core reqUIrements of the Job It IS my VIew that IS sImply a
matter of supervIsIOn rather than traImng (page 44)
HavIng decIded the gnevor already had the abIhty to do the Job Ms. Mikus could have
allowed the gnevance Without saYIng anythIng about what should happen In the hypotheTIcal
sItuaTIOn of a gnevor who would acqUIre thIs abihty only after further traImng. Nonetheless, she
went on In the next paragraph to address tills Issue In the folloWing obiter rulmg:
In any event, like the Hill and Campbell case, the Employer has a mandatory
traImng program whIch all employees must attend. If the first two weeks are a
mandatory program sImilar to that In the Hill and Campbell case, the gnevor
will no doubt be reqUIred to attend those two weeks of traImng before assumIng
any Job dutIes. There IS no questIOn In my mInd that, after the first two weeks,
he would be capable of performIng the core dutIes of the Job Without difficulty
(page 44)
Before these obiter comments In Bazinet the Board had not ruled upon any excepTIon
to the Loebel standard. The employer acknowledged an excepTIon In Hill and Campbell In the
context of a vacancy but there was no clear acknowledgment of an exceptIOn In Smith m the
context of a dIsplacement. The obiter rulmg In Bazinet took the exceptIOn conceded In Hill and
Campbell In the setTIng of redeployment to a vacant pOSITIOn, and apphed It to dIsplacement of
an Incumbent employee. The ruhng was made Without acknowledgIng thIs factual disTInctIon and
Without consIdenng whether It was sIgmficant. The propnety of such an extensIOn ments
consIderaTIon.
There IS a compelhng raTIonale for recogmZIng an excepTIon to the present abIhty test In
the context of a vacancy In a pOSITIOn for willch traImng IS mandatory When a pOSITIOn IS vacant,
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whoever IS appoInted to fill It would have to be traIned. A surplus employee IS no different than
anyone else In tills respect. It would be absurd for the employer to argue the surplus employee
IS unquahfied because he or she lacks traInIng willch every other candidate also lacks, because
no-one would be qualIfied accordIng to thIs argument. Tills absurdity probably explaIns the
conceSSIOn made by management In Hill and Campbell
When there IS no vacancy the sItuaTIOn IS different. As the Incumbent has completed the
mandatory traImng, there IS no need to traIn anyone, unless the Incumbent IS displaced by the
surplus employee In the context of a dIsplacement, It IS not absurd for the employer to argue
the surplus employee IS unqualIfied because he or she reqUIres traImng willch the Incumbent
already has In other words, the same ratIOnale does not eXIst for a departure from the normal
standard of "present abihty" set out In Loebel
ThIS standard was establIshed at least fifteen years ago and has not been changed In
collectIve bargaImng In the IntervenIng years. In the absence of some absurdity an arbItrator has
no authonty to modify a long-estabhshed rule willch the partIes to the collectIve agreement have
seen fit not to alter In succeSSIve rounds of negoTIaTIons. AccordIngly I am bound to apply the
ruling In Loebel to the gnevance at hand.
The gnevance IS dismIssed.
Dated at Toronto, thIS 9th day of September 1999
RIchard M. Brown, Vice ChaIr
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