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HomeMy WebLinkAbout1997-0258KHIMJI98_11_04 I ONTARIO EMPLOYES DE LA COIJRONNE CROWN EMPLOYEES DE L'ONTARIO _II GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONEfTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILEfTELECOPIE (416) 326-139tJ GSB #0258/97 . IN THE MA ITER OF AN ARBITRA nON Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ProfessIOnal Engtneers & Arclutects of the Ontano Public ServIce (Sluraz KlumJi) Grievor - and - The Crown m RIght of Ontano (Ontano Clean Water Agency) Employer BEFORE FelicIty D Bnggs Vice-ChaIr FOR THE Larry Robms GRIEVOR Uruon Consultmg ServIces FOR THE DaVId Strang EMPLOYER Counsel Legal ServIces Branch Management Board Secretanat HEARINGS October 21, 1997 October 23, 1997 February 2, 1998 . Mr Aztz Ahmed, Charr of the Gnevance COIDlDlttee for the Umon, sent the followmg letter on November 19, 1996, to Mr Greg Turchyn. Mr Shtraz KlmnJl, P.Eng. receIved a revISed letter of surplus dated November 1996, and was advised in the same letter that there was no dIsplacement opporturnties available for lum. Mr KhrrnJI'S posItion was Operations Engmeer at the PBE-09level. The AssoctatIon gneves that the employer bas VIOlated .ArtIcle 14 of the CollectIve Agreement. As remedy, the AsSOCIatIon demands that the employer rescmd the notIce of surplus, and correctly lIDplement ArtIcle 14 The Employer's posIoon IS well set out m a letter sent to Mr Ahmed after the stage two gnevance meetIng dated April 16, 1997 In that letter, Mr Turchyn stated, Tlus letter IS management's response to the Stage Two meetmgs that were held m London on March 14 and April 9, 1997 Dunng these two meetIngs we discussed the evaluatIon of Mr KhrrnJI' s Employee PortfolIo agamst the posrtlons ofDIStnct Engmeenng (PBE7) and Approvals Engmeer (PEB6) WIth the MIDlStry of EnVIronment and Energy's Southwestern RegIOn office located m London. Further, we reVIewed the wntten evaluatIon of the Project Engmeer (PBE9) pOSItIon WIth the Ontano Clean Water Agency located m Toronto PEGO has agreed that Mr KhrrnJIIS not qualIfied to dIsplace the Engmeenng SpeCIalIst (PBE9) pOSItIon WIth OCW A m Toronto Mr KhrrnJI asserts that lus twenty-one-plus years of serVIce are suffiCIent to qUalIfy lum to perform the work of the least semor employee Ident1fied m the above noted pOSItIOns; however, my reVIew of the ongmal evaluatIon and my consIderatIon of lus verbal presentatIOn of lus skills, knowledge and expenence agamst the reqUlrements of the pOSItIon have not persuaded me that Mr KhImJI IS qualIfied to perform the work of the least seDlor employee m those pOSItIOns. As a resuh of my reVIew, I find that ArtIcle 14 of the PEGO CollectIve Agreement has been correctly lIDplemented, and, therefore, your gnevance and request to rescmd the notIce of surplus, IS demed. Mr KhunJI receIved Ius fIrst nooce of surplus on September 30, 1996 He no1:1fied the Employer that he wanted to explore dIsplacement opportumoes and, by letter dated October 22, 1996, he was Informed that he could dIsplace mto a PBE7 posIoon WIth the MinIstry of Envrronment and Energy as a Flow Momtonng SpeCIalIst m the downtown Toronto office The gnevor accepted that dIsplacement. However, he reserved the nght to dIspute whether there was a posIoon he was qualrlied for Wlthm forty kilometers. Shortly thereafter the PBE7 1 2 posInon m the Toronto office was declared redundant. AccordIngly, on November 7, 1996, Mr KhnnJI receIved the followmg letter from Mona Kornberg, Actmg Vice PreSIdent of Human Resources TIus letter will supersede the letter dated October 22, 1996 A further reVIew has mdtcated there IS no displacement opportunrty beyond 40 Ian of your headquarters It has however, been deCIded to re-Issue you a new surplus letter effectIve November 7, 1996 I would like to prOVIde you With a summary of the entItlements and OptIOns available to you m accordance With ArtIcle 14 of the CollectIve Agreement for PEGO employees The Dmon took the po SInon that the gnevor should have been allowed to chsplace mto the posItIon of Approvals Engmeer WIth the MinIstry of EnVIronment m the Southwestern RegIOn office m London. As set out above, the MinIstry's posItIon was that the gnevor was not qualIfied to do the work. The present mcumbent, Todd Fleet, was gIVen nonce of the heanng. He attended and partIcIpated fully throughout the proceedmgs There was no chspute that the gnevor had more semonty than Mr Fleet. The sole Issue between the partIes was whether the gnevor IS quahfied to perform the work of Approvals Engmeer The relevant sectlOns of the collecnve agreement are as follows DISPLACEMENT 14.5 1 An employee who has completed bts/her probanonary penod, who had receIved nOTIce of lay -off pursuant to SectIon 14.3, and who has not been asSIgned to another pOSITIOn m accordance wIth cntena of SectIon 14 6 shall have the nght dtsplace an employee m the same nnmstry who shall be Identrfied by the Employer m the followmg manner (a) The Employer will IdentIfy the employee With the least semonty m the same classIficaTIon and the same MimstJ.y as the employee's surplus posITIOn. If such employee has less semonty than the surplus employee, he/she shall be dtsplaced by the surplus employee proVIded that: (I) such employee's headquarters IS located WithIn a forty (40) kilometre radIus of the headquarters of the surplus employee; and (ii) the surplus employee IS quahfied to perform the work of the IdentIfied employee. (b) If the surplus employee IS not qualIfied to perform the work of the least semer employee IdentIfied under paragraph (a) above, the Employer will contInue to IdentIfy, m reverse order of semonty, employees m the same clasSIficatIOn and m the same nnmstry until a less senIor employee IS found WithIn forty (40) kilometres of the surplus employee's headquarters whose work the surplus employee IS qualIfied to 3 perform. ( c) Failing msplacement under paragraphs (a) or (b) above, the Employer willldentlfy, m reverse order of semonty, employee m the classes m the same class senes m descending order until an employee WIth less semonty If found m the same rmmstry WIthIn forty (40) kilometres of the surplus employee's headquarters. The Identlfied employee shall be msplaced by the surplus employee proVlded he/she IS quahfied to perform the work. The eVIdence was complex, detailed and techmcal m nature Therefore I will proVIde only an overvIew suffiCIent to apprecIate the basIs of my decIsIOn. Mr KhrmJI took lns cIvil engmeenng educatIOn at the UmversIty ofNarrobl. He worked for three years m NarrobI and Kenya desIgnmg and supervIsmg contracts for water mams. He began wIth the MinIstry m April of 1975 He held the pOSItion of ReVIew Engmeer from 1975 to 1977 wlnch was at the PBE7 level. In that pOSItion he evaluated applIcations for mstallatIon of water and sewage systems, dealmg WIth water treatment plants AccordIng to lns Employee PortfolIo, dated October 3, 1996, lns duties m that pOSItiOn mc1uded. - to plan, co-ordmate and mrect the actIVltles of the sectlon m the engmeenng evaluatlon of apphcatlons for mumclpahtles and pnvate sector for the approval of mstallatlon of sewage and water works system - to asSIst m the estabhshment of cntena and standards to be used m the deSIgn of water supply and sewage system treatment works to be mstalled m Ontano From 1977 to 1989 the gnevor was an EnVIronmental Approval Evaluator That pOSItiOn was newly establIshed m the London office and It was somewhat sumlar to lns earlIer pOSItion. He testrfied that the pOSItiOn evolved and changed over the twelve years He acted as the co- ordmator for the regIOn's complex water approvals. When any company wanted to draw more than 15,000 htres from the ground, an applIcation was subIDltted and the DIrector's approval was reqUITed. He also dId some applIcations for approval that dealt WIth arr and fish hatchenes He was requrred to consIder applIcations for approval from quames and those applIcations consIdered nOIse levels, ground water, arr qUalIty Issues and haulage concerns He once reVIewed the documents m an applIcation for a complex landfill SIte A landfill SIte IS consIdered "complex" based on the quantity of garbage A SIte IS complex If It takes waste 4 from more than fifteen hundred people The gnevor was lookmg at the genenc terms and standard conmnons for such sItes. In Ins Employee Portfol1o, he attached a descnpnon of tlns poslnon and Ins summmy stated. To assISt m carrymg out the RegIon's responsibility under the EnVironmental Assessment Act; to proVide RegIOnal envrronmental mput to "quasI approval" applIcatIons, to co-ordmate Techrucal Support SectIon's mput to the RegIonal reView co-ordmator on complex water and wastewater approvals; to grant or refuse non-complex mdustnal applIcatIons and perrmts for the takIng of water; to co-ordmate the RegIon's mput to Envrronmental Approvals on fish hatchery. applIcatIons; to proVide expert testImony at heanngs and serve on comrmttees deaImg WIth approvals and enVlfOnmental assessment matters, to co-ordmate the MinIstry's mput on subdIViSIon applIcatIons It was later suggested by Mr Janse, Drrector of the Southwest RegIOn, that the gnevor's above descnpnon was farrly accurate except that he dId not have the authonty to grant or refuse approvals, His authonty extended only to makmg a recommendanon to the Drrector The gnevor dId not dIspute that correcnon. 1n 1989 Mr KhnnJI apphed for and was promoted to the posloon of Operaoons Engmeer - UtIhty Operaoon Secoon m the London office He began as a PBE8 but the posloon was elevated to PBE9 m 1991 Agam, he was mvolved m the management of water and sewage operatIOn of plants for murucIpal chents He was responsible for ensunng that sewage facIhoes operated m accordance WIth the gmdelmes and that dnnkmg water met specIfic quahty requrrements He was makmg apphcaoons for the alteraoon to sewage trea1ment plants In 1993, Ins posloon fell under the auspIces of the Ontano Clean Water Authonty, but It was vrrtually unchanged m content. In Ins Employee Portfoho, the gnevor summanzed the duoes and responsibihoes of tlns posloon as OperatIons Engmeers are responsible for ensunng the proVisIon of water and wastewater servIces to clIent groups such as mumcIpal, federal, provmCIal and pnvate agencIes. Smce these sefVIces are on a charge-back basIS, OperatIons Officers must be accountable to the chent groups for operatIng costs. OperatIons Officers are accountable for effluent control and enVironmental effects from plant operatIon, safety of plant staff and the publIc as well as complIance With vanous regulatIons under a number of Acts The gnevor also hsted Ins areas of expertIse on Ins resume The tlurd area hsted was as 5 follows Water and Wastewater Busmess - possess a strong knowledge of water and wastewater treatment processes and urnt treatment costs - possess a good workmg knowledge of enVlronmentallegtslatIon affectmg water and wastewater busmess - mamtam excellent rapport WIth murncIpal chents m Oxford, Perth, Middlesex CountIes - knowledgeable about competItors m area When he was declared surplus on September 30, 1996, Mr KhrmJI was actually offered a posltJ.on m Toronto However, that posrhon was declared redundant and so he was declared surplus agam. Mr KhrmJI testJ.fied that he was famihar With the posrt:J.on at Issue and WIth the mcumbent. Dunng ills testImony, he reVIewed the Job specmcatJ.on and stated that he was capable of many of the Job responsibiht:J.es There were some of the dunes hsted that he had done at some pomt m ills career With the MinIstry He had expenence With one waste dIsposal apphcat:J.on and had dealt With ground water quahty Issues while he worked With sewage treatment apphcat:J.ons and With quames He stated that he was famihar With waste management pohcles but conceded that he would have to reView matenal to "come up to speed" He thought he would need two or three weeks to be able to do the Job or perhaps he could be ready to do the work m one week IT he was allowed to "buddy" With the mcumbent. In cross exammatJ.on, he agreed that the focus of ills expenence was With water and sewage and that he had never done and apphcatJ.on for approval for a land fill SIte, he had no pnor expenence With waste regulatJ.on nor had he ever worked With the Envrronmental BIll Of RIghts The mcumbent receIved ills bIO-energy engmeenng degree from the Umverslty of Western Ontano Some of ills educatIOn was bIO-chenncal. He had preViously attended Fanshawe College to become an AIr and Water Resource Techmclan. He began With the MinIstry as I 6 an Approvals Engmeer m Toronto m 1989 The followmg year he became the RegIOnal Approvals Engmeer m the London office It was and contmues to be a smgle mcumbent posItIon. In the begmnmg he spent approxnnately fifty percent of Ins tune on waste approvals and the rest of Ins tune was taken up WIth matters regardmg water, pIts and quarnes as well as arr pollutIon Issues. However, now vntually all of Ins tune IS taken up WIth mumcIpal and . mdustnal apphcatIons for landfill or waste SItes He works under the Envrronmental Bill of R1ghts wInch IS legIslatIon to enhance pubhc partIcIpatIon and consultatIon for every mstrument developed or Issued by the MinIstry The mstruments he works WIth are CertIficates of Approvals and orders WIder the Environmental Protection Act and the Ontario Water Resource Act. He testrfied that he IS consIdered to be the expert m the southwest regIon about the Bill of R1ghts and for matters regardmg waste regulatIons Mr Fleet was asked to reVIew the Job specIficatIon for the posInon once held by the gnevor of Envrronmental Approvals Evaluator Of the eleven dunes and responsibIlInes lIsted, he had never performed seven, occasIOnally performed three and only dId one on a regular baSIS m Ins current posIllon. Mr Fleet tesnfied that Ins current Job specIficanon does not accurately represent how he spends hIS tIme He proVIded for the Board a lIst of all of the files that he had worked on smce movmg to the southwest regton. In an effort to asSISt the Board to understand Ins work, he also proVIded vanous documents and gave eVIdence about vanous matters mcludmg an applIcanon for a Waste DISpOSal SIte (Orgamc Soil CondInorung), an apphcanon for a CertIficate of Approval for an Orgamc Waste Management Syste~ an apphcanon to amend a CertIficate of Approval for a Waste DISpOSal SIte and an apphcanon that mvolved hazardous wastes He explamed the actual responsibIhtIes of Ins posInon mcludmg the draftmg varymg condItIons to be met to receIve approvals. He also gave eVIdence that, WIthm the procedure of approvmg apphcatIons, he goes through a process whereby he assesses the I 7 total cost of potentIal clean up of the vanous sItes m the event of unforeseen later problems. He estunates an amount and negotIates the financIal assurance WIth the applIcant. Not all of the applIcatIons for approval he receIves are complex and he conceded m cross exammatIon that an understandmg of dramage and the mIgratIOn of waste through the waste water and soIl IS an nnportant part of some applIcatIOns Mr Fleet s3.1d that he has encountered a number of SItuatIOns where there was no current standard that applIed to a partIcular problem and he has had to develop them. He described some standards as bemg qUIte "sIte-specIfic" Mr James Janse became the Drrector for the Southwestern RegIOn m 1994 He had prevIOusly been the ASSIstant Drrector He IS a CIvil engmeer who has been employed WIth the MinIstry smce 1967 He testrfied that he was mvolved m the deCISIOn to deny the gnevor thIS rnsplacement. Mr KlumJI'S supervIsor reports to Mr Janse He s3.1d that he had knowledge of the gnevor and ills dutIes and responsibIlItIes as well as those of the mcumbent. Mr Janse testrfied about a number of changes WIthm the Mimstry m recent years regardmg the approval process. In 1997, It was deCIded to centralIze all approval authonhes and now all Approval Engmeers mcludmg Mr Fleet report to a supervIsor m Toronto Pnor to that, Mr Fleet reported drrectly to Mr J anse Mr Janse gave eVIdence about the gnevor's former Job and the pOSItIon now held by Mr Fleet. He described all of the changes that have taken place m the department generally and WIth Mr Fleet's pOSItIon more specIfically It was ongmally thought that Mr Fleet would spend only fifty percent of Ius tIme on waste approvals. In the fall of 1996, Mr Janse estImated that eIghty percent of Mr Fleet's tIme was spent dealmg WIth waste Issues Accordmgly, a number of other Job functIons were transferred from Mr Fleet to others to allow for the mcreasmg work m waste approvals Mr Fleet IS the only Approvals Engmeer m the regIOn and so IS the person who makes recommendatIOns to the Drrector regardmg these types of certIficates of approval. He IS also the only one dealmg WIth the 8 EnvIronmental Bill of RIghts m the regIon and the only person who has responsibihty for developmg financIal assurances When he receIved the gnevor's request to d1splace, Mr Janse reVIewed vanous documents such as the gnevor's Employee Profile and Job specmcatlOns He took that mformatlOn mto account as well as lus knowledge of the duties and responsibihties of the gnevor and the mcumbent to determme whether Mr KlumJI was quahfied to do the work. It was lus VIew that, although there were a few aspects of the Mr Fleet's posItion that the gnevor could perform, he could not do most of the work. Mr Janse's VIew m tlus regard d1d not change after heanng the eVIdence at the arbItration. The gnevor gave reply eVIdence. He reVIewed some of the documents and eVIdence entered by the mcumbent and stated that he had "s11I1ilar" expenence m lus vanous pOSItions at the MIll1Stry He testified that there were "srmilar" Issues and the processes had "sllllllar" pnncIples. For example, he stated that he had some expenence With reserve funds wluch he likened to the fmancIal assurance process As well, he suggested that the Bill of RIghts process was very snnilar to the EnVIronmental Assessment Process In cross exammation he conceded that he had not been mvolved With an approval for a compostmg SIte, he had never operated a sohd waste plant nor had he dealt With approvals for a sohd waste plant. Mr KhunJI suggested that Just because he had not partlCIpated m these processes regardmg sohd waste d1d not mean that he was not fa.nnl1ar With the Issues mvolved. UNION SUBMISSIONS Mr RobbInS, for the Dmon, subIll1tted that artIcle 14 5 1 ( c) of the collective agreement was VIolated when the gnevor was derued lus request to d1splace mto the pOSItion of Approvals Engmeer Such a d1splacement would have constituted a demotion for Mr KlumJ1. Artlcle 9 14 does not proVIde that the gnevor has to be equal m skill or ability to Mr Fleet. It IS a threshold clause and therefore the Board only has to find that the gnevor IS qualIfied to do the work. It was the Dmon's posItIon that the Employer conceded that the posItIon at Issue evolved from a posItIon once held by the gnevor The eVIdence establIshed there IS suffiCIent sImilanty m Job functIons for the gnevor to be consIdered qualIfied to do the work. There . was no dIspute that the gnevor IS an engmeer WIth much educatIon and expenence The Dmon contended that each gnevance dealmg WIth dIsplacement Issues IS qUIte dependent on the facts There IS no need for tlus Board to establIsh new law The Board's task IS snnply to assess the relevant eVIdence and deCIde whether the gnevor IS qualIfied to do the work. However, the Dmon suggested that there IS also a larger Issue between the partIes and that IS whether engmeers who have lnghly specIfic work can take theIr knowledge and expenence and apply them to another engmeenng posItlOn. In antICIpatIon of the Employer's subrmSSIOll, Mr Robbms thought that It would suggest to tlus Board that, while the gnevor held a pOSItIon wInch was a precursor to that held by Mr Todd, the evolutIon of the functIOns and compleXIty of the aSSIgnment m most recent years renders the gnevor unquahfied. TIns Board should not accept that VIew There are over five hundred engmeers workIng for the government. It rmght be that some have pOSItIons that have Job dutIes that are SIte specIfic or asSIgnment specIfic However, It must be eVIdent that engmeers can apply theIr consIderable educatIon and expenence to a number of other sImilar pOSItIons It was urged that the Board should find that there was notlnng presented m the eVIdence of eIther Mr T odd or Mr J anse that establIshed there IS anythmg new m the Approvals Engmeer pOSItIon that the gnevor cannot do He held a snnilar pOSItIon for a number of years and he possesses the skills to perform the functIons of the aSSIgnment. In order for the 10 gnevor to be consIdered qualIfied, he does not have to be found to have done every aspect of the Job at Issue. The mcumbent proVIded the Board With a hst of the work he has done However, the gnevor testrfied that he could have done that work. The Vmon rehe~ upon Re The Plummer Memorial Public Hospital and Ontario Nurses' Association (November 10, 1993), unreported (Venty), Re Humber Memorial Hospital and Ontario Nurses' Association (January 24, 1994), unreported (Stanley), and Re Denison Mines Ltd. And United Steelworkers (1986), 25 L.A.C (3d) 230 (Spnngate) EMPLOYER SUBMISSIONS The Employer acknowledged at the outset that the gnevor IS lughly expenenced and competent. However, lus area of competence IS WIth wastewater and the posIoon at Issue deals not With water or wastewater but With approval of waste SItes mvolvmg solId waste and lIqmd mdustnal waste It IS for tlus reason that the Employer detenmned that a chermcal engmeer was the appropnate chOIce It was With tlus knowledge m rmnd that Mr Fleet was recruIted long before the mstant gnevance was filed, Mr Strang, for the Employer rermnded the Board that It had the benefit of heanng from the mcumbent about the range of dunes and responsibihnes mvolved m lus posInon. It was clear m the eVIdence that on a number of occaSIOns the mcumbent had certam knowledge, skills and expenence that was beyond the gnevor For example, Mr Fleet had expertIse With the Envrronmental Bill of RIghts. Mr K..h1mJI had no expenence With It. Mr Fleet has much expenence m ascertammg finanCIal assurances Mr K..h1mJI has not. That process alone entails an m-depth understandmg of waste SItes to allow an engmeer to know the range of what can go wrong and, m the event somethmg does, how to fix the matter and how much money It Will cost to do so I 11 The Employer asserted that the gnevor had no knowledge of waste and waste fields and that lack must detenmne thIs gnevance. Wlule It IS true that the gnevor held a posItIon srmilar to that now held by Mr Fleet, there has been consIderable change to the work over the years The mstant poslf!on focusses on approvals under the Environmental Protection Act. There IS even a illfferent statute now m effect and the regulatIons and processes have changed as well smce the gnevor was an Approval Evaluator The Employer rehed upon Re The Crown in Right of Ontario (Ministry of Citizenship) and OPSEU (Henderson) (March 31, 1992), unreported (Barrett), Re The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing) and OPSEU (Loebel) (February 15, 1983), unreported (Venty), Re The Crown in Right of Ontario (Ministry of Transportation and Communications) and OPSEU (Allison) (January 18, 1984), unreported (Roberts), Re The Crown in Right of Ontario (Liquor Control Board of Ontario) and OLBEU(Dyer) (March 8, 1983), unreported (Saltman), and Re The Crown in Right of Ontario (Ministry of Northern Development and Mines) and OPSEU (Smith) (February 8, 1995), unreported (Kaplan) Mr Strang subrmtted that m Dyer, It was found that where the gnevor was lackmg expenence m a slgrnficant component of the job, the gnevance could not succeed. The gnevor has to prove to the Board's satIsfactIon that he can do the job, not merely that he thmks he IS able. In the mstant matter, the gnevor has not shown that he has any trammg or expenence m waste SItes. Mr Fleet testrfied that he IS expert m the area of workmg Wlth vanous statutes and that he IS vel)' fanuhar Wlth the regulatory schemes The gnevor conceded that he illd not have expenence Wlth recent legIslatIon for waste Indeed, m the eVIdence m cruef, the gnevor canilld1y adnntted that he was not famihar Wlth the Envrronmental Bill of RIghts or finanCIal assurances. There IS no questIon that Mr Khnnjl IS farmhar Wlth some envrronmentallegIslatIon. However, that knowledge IS not suffiCIent 12 for the gnevor to be found quahfied for tlus posItion. Mr Strang noted that Mr Fleet testIfied that he was told when he first took the POSItiOn, waste approvals would be a large part of the work. It began as approxunately fifty percent of ills work but that has evolved to approxunately eIghty percent. The nature of the work IS such that the engmeer has to be able to antiCIpate problems. Indeed, Mr Fleet testified that m one mstance he noticed that an applIcant was proposmg to nnx chenncals that were mcompatible together and would cause corrOSIon. The matters that are dealt With by the mcumbent are complIcated and complex chenucal problems. The gnevor IS not snnply quahfied to do that work. The Employer, as mdtcated m the eVIdence of Mr J anse, underwent a thorough assessment of the gnevor's skIlls and found hnn to be wantIng for the pOSItion at hand. While Mr KhImJIIs a hIghly qualIfied engmeer With respect to wastewater, the Job at hand does not reqUITe that expertIse INCUMBENT SUBMISSIONS Mr Fleet argued that the gnevor has assumed that the Job at Issue IS the one that he once occupIed ten years preVIously The eVIdence was clear that Mr KhnnJI IS mcorrect m that regard and lus understandmg of the present poSItion dtd not hold up to scrutIny The pOSItion reqwres a background m chenucal engmeenng and an expertIse With the waste mdustry and the gnevor has neIther accordIng to hIs own eVIdence m cluef. In reply the Dmon subnutted that the gnevor could take hIs expenence and background and apply that knowledge to the new statutes and regulatory schemes The test for the gnevor to meet should not be that he 15 able to do all aspects of the work illlIDedIately upon lus amval 13 mto the po SInon. DECISION I stated m Re The Crown in Right of Ontario (Ministry of Environment) and PEGO (Donyina) unreported (June 8, 1998), that It IS appropnate for me to keep m mmd that the gnevor IS a member of a professIOnal bargammg umt. It IS rmportant to carefully apply the junsprudence takmg that mstmcnon mto account. I mdIcated ill Donyina that It would be wrong to srmply rmport pnncIples set by Boards of ArbItranon ill thelT consIderanon of gnevances that arose from workplaces that consIst of less skilled workers I thmk It would be useful to set out part of that deCISIOn agam, begmnmg at page 13 The language set out m the mstant collectIve agreement IS substantIally the same as that between the government and Ontano PublIc ServIce Employee Dmon. Virtually all of the junsprudence proVIded by the Employer were preVIOUS Gnevance Settlement Board deCISIOns between those parnes Although that junsprudence IS of asSIstance, there IS one SubstantIve dIfference In the case before me. I am dealIng WIth a workforce made up entIrely of profesSIOnal engmeers and arclutects. In thIs regard I note the comments of ArbItrator Venty m Re Plummer Hospital (supra) wherem he was deCIdIng a gnevance filed by a regIstered nurse In lus deliberatIons, he took mto account an earlIer declSlon of ArbItrator Shnne In a deCISIOn m the mdustnal settIng. ArbItrator Venty says at page 11 However, the facts of the Instant gnevance are dIstIngUIshable from the Shnne award, both on the language and the difference between labounng jobs and profesSIonal jobs. In our OplDlOn, arbItrator boards must exerCIse cauTIon In ngIdly applyIng pnncIples from the mdustnal settIng Into a profeSSIonal settIng. While I would not refer to most clasSIficatIOns WIth the pubhc servIce "labounng jobs", I am of the VIew that I cannot sunply unport the Gnevance Settlement Board junsprudence between the Employer and OPSED Into thIs dIspute WIthout havmg regard to the profeSSIonal status of the members of the bargammg urnt. I too must exerCIse cauTIon to ensure that certaIn pnncIples are not ngIdly apphed, gIven the profeSSIOnal nature of the workforce In PEGO The partles were m agreement that cases such as tlus matter are fact based. That IS to say that my task IS to assess whether the gnevor was qualIfied to bump mto the pOSITIOn of Semor Engmeer Approvals Branch at the tIme he attempted to do so Further, the parnes were agreed that the gnevor and the urnon bear the onus of estabhshIng that the gnevor was quahfied to perform the work at hand. 14 After careful consIderatIon of the facts, I am of the VIew that the gnevance must be allowed. In arnvrng at tlus decIsIon I dId reVIew all of the Junsprudence proVIded. In Re Loebel (supra), Vice ChaIr Venty stated, at page 18 In our VIew, the words "qualrlied to perform the work" must be mterpreted broadly If we are to gIve any real meanmg to the prOVIsIons of the ArtIcle. "Quahfied to perform the work" must relate to the reqUIrements of the Job m questIon. In the InStant Gnevance, qualIficatIons mclude educatIOnal backgrowlCI; knowledge of the functIons of the Commumty Renewal Branch, the'MinIstry and government generally; knowledge of all relevant legIslatIOn, knowledge of the contents, ObjectIves and elIgibilIty reqUIrements of all speCIfic programs offered by the Branch, related expenence dealmg WIth MUnICIpal Councils and MumCIpal OffiCIalS, and good oral and wntten commumcatIOn skills And later at page 21 that ArtIcle has been mutually agreed upon by the Pames to benefit surplus employees by affordIng them certaIn preferentIal nghts of appomtment. Few, If any surplus employees would succeed m movrng successfully from one MinIstry to another If the accepted test were more stnngent than mInImum competence m all of the malor components of the lob. Such an mterpretatIon does not mean that a surplus employee must possess skill and knowledge m all actiVItIes asSOCIatIOn WIth the pOSItIOn. However, It does mean skills and knowledge of the mam components of the pOSItIon. (emphasIs added) In that case, the gnevor was attemptIng to bump mto a pOSItIon of Commumty Renewal Officer With the MinIstry ofMurucIpal AffaIrs and Housmg. He had been workIng as a Child Abuse Program Consultant With the MinIstry of Commumty and SOCIal SerVIces The Board dIsmIssed the gnevance because the gnevor's "knowledge of the details of the speCIfic programs offered by the Communrty Renewal Branch and the enablmg legIslatIon appears on the evIdence to have been less than satIsfactory" Further, the Board found that the gnevance could not succeed because "the evIdence 15 clear that lus knowledge of the contents, ObjectIves and ehgibilIty reqUIrements of the branch programs was defiCIent and maccurate m many respects" SImtlarly, m Re Smith (supra) Vice ChaIr Kaplan applIed the test set out above to a case mvolvmg a gnevor who was attemptmg to bump mto an EnVIronmental Office 5 pOSItIOn of RehabilItatIon Inspector He had been surplused from lus own pOSItIon of Econonust 4 WIth the MinIstry of Northern Development and Mines but had OCCUpIed a pOSItIon of EnVIronmental TechnICIan for a penod of four years. The Board reVIewed the eVIdence and dIsnussed the gnevance It was stated at page 28 His eVIdence establIshed that while he may have the present abilIty to perform some of the tasks of the Job, he does not have the present abihty to perform the Job at a nummum level. He has no famihanty WIth the MinIng Act, and what familIanty he has WIth the other key legIslatIve enactment, namely the OccupatIOnal Health and Safety Act, does not appear to extend 15 to conmtlODS found m nunes. The gnevor has no real knowledge about the nune closure plan process, while the eVIdence estabhshes that tlus functIon occupIes approxunately 40% of the mcumbents tIme. His knowledge of the nunmg sequence IS scanty at best. In another example, the gnevor does not have the skills and knowledge to conduct a proper mvestIgatlOn. The gnevor may have the ability to perform a few mscrete tasks, but tlus does not eqUip hIm With the abilIty to do the Job at a mmImallevel. In Donyina, I foUnd that the gnevor was "competent to perform the essentIal elements of the Job" I mSIDlssed the notIon that all engmeers had to have formal engmeenng educatIon and expenence m a partIcular speCIalty to be qualIfied to do work WIthm that mscIplme I saId at page 16, "That hIs formal engmeenng educatIon was m metallurgy does not, m and of Itself: mean that he IS not qualIfied to do work whIch IS normally performed by chermcal or statIOnary engmeers" I upheld the gnevance fmdIng the gnevor qualIfied to perform the Job of Seruor Engmeer m the Approvals Branch, Industnal Wastewater Urut because the eVIdence mmcated that the gnevor had conSIderable expenence, albeIt not m approvmg certlficates, m the area of wastewater In the mstant case, the Employer suggested that the Smith deCISIOn IS one whIch should persuade me to msrmss the gnevance As always, m matters where an assessment of whether a gnevor IS qualIfied to do partIcular work, the deCISIOn WIll turn on an applIcatIon of the facts In thIs case, I had -the benefit of hearmg detailed and speCIfic eVIdence from the mcumbent. That eVIdence was vel)' helpful and proVIded an m-depth reVIew of the vanous aspects of the nature of the pOSItIon and a descnptIOn of how those dutIes have changed over recent years Mr Fleet also testIfied at length about a number of rmportant responsibilItIes , and dutIes he present performs that are not contemplated m the Job speCIficatIon. After ! i conSIderatIon of the facts of the mstant matter, I find that I must mSIDlSS the gnevance In my I i i I VIew, the eVIdence srmply does not support a findIng that the gnevor IS qualIfied. i I i i I I am still of the VIew that educatIon alone, that IS the specIfic engmeenng mscIplme, does I ! ~ not, m and of Itself: deterrmne the matter at hand. There rmght be occasIOns, like m the case ~ ( ! ~ ! ! I ~ I 16 of Dr Donyma, when expenence m partlcular aspects of engmeenng WIll outweIgh formal educatIOn. However, m thIs case, I am convmced that the gnevor has not had sufficIent expenence dealmg WIth the vanous chermcal aspects needed to be consIdered qualIfied to do the work of EnVIronmental Approvals and Plan ReVIew Engmeer as performed by Mr Fleet. While It IS true to say that the Job specmcatIon for the pOSItIon contemplates the abilIty to emulate and comment on "proposals relatIng to the mstallatIon, mollificatIon and operatIon of murucIpal and pnvate water works, sewage works and mdustnal abatement uruts", the eVIdence ofMr Fleet was uncontramcted that the vast maJonty of hIs tlme IS spent dealmg WIth Issues surroundIng and procedures regardmg waste SItes Indeed, thIs eVIdence was conftrmed by Mr J anse In my VIew, as was found m Smith, the gnevor does not have the "present abIlIty to perform the Job at a ID1ll1IDum level" Further, I do not belIeve that he has the "rmrumum competence III all of the maJor components of the Job", as stated m Loebel. I agree WIth Vice ChaIr Venty that It IS not necessa1)' to fmd that "a surplus employee must possess skIll and knowledge m all actIVItIes assocIated WIth the pOSItIon" But m thIs case, there are srmply too many aspects of the work where the gnevor had msufficIent expenence or no expenence whatsoever For example, accordmg to hIs own eVIdence, Mr KhnnJI had never worked WIth the Environmental Bill of Rights or under the regulatol)' scheme thereto Further, he had no knowledge of, or expenence WIth, the FmancIal Assurance process whIch figures prommently m the approvals process Although he thought that he had done sIIDilar work, I was not convmced that the gnevor was qualIfied. In the gnevor's resume that formed part ofhts Employee Profile, he lIsted a number of areas of expertIse. Those areas mc1uded publIc relatIons, marketIng and sales, mterpersonal skill, commurucatIOn, as well as coordmatIon and orgaruzatIon. However, the only hIghlIghted area m terms of hIs engmeenng abilItIes was vel)' speCIfic to "water and wastewater busmess" 17 I was not convmced on the eVIdence that the gnevor could take hIs educatIon and expenence WIth wastewater, apply It to the posItIon at Issue and be consIdered qualrfied. As the Employer stated m ItS openmg statement and m ItS c10smg arguments, there IS no . doubt that the gnevor IS a hIghly qualIfied and competent engmeer Indeed, the Employer expressed consIderable regret that a posItIon could not be found for the gnevor as he was a valued employee I do not doubt that. However, m my VIew, he IS not qualIfied for the posItIon ofEnvrronmental Approvals & Plan ReVIew Engmeer that IS currently held by Mr Fleet. F or all of those reasons, the gnevance IS msrmssed. Dated thIs 4th day of November, m Toronto, 1998 ~Jt F eh;lty D Bnggs jI6 Vice Charr f