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HomeMy WebLinkAbout1997-0482ANSARI98_11_13 I ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARJO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON M5G 1Z8 TELEPHONEITELfPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G tZ8 FACSIMILEITELEcOPIE (416) 326-1396 GSB # 0482/97 OPSEU 97C353 INTHEMATfEROF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Uruon (Ishrat Ansari) Grievor - and - ~ The Crown m RIght of Ontano (Mirustry of Agnculture, Food and Rural Affairs) Employer BEFORE Randl H. Abramsky Vice-Chair FOR THE Knstm A. ElIot GRIEVOR Counsel, ElIot, SmIth Bamsters & SolICitors FOR THE Lucy SIraco EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING November 4, 1998 \. - AWARD At Issue IS whether the gnevor, Ishrat Ansan, was "ffilrumally qualIfied" to perform the Job" of Programmer Analyst wIth the Mirustry of Health under ArtIcle 205 1 (c) . Under the collectIve agreement, he must have "the abilIty to do the Job at entry level" to be deemed "ffilrumally qualIfied" for the pOSItIon In a redeployment sItuatIon, FACTS The gnevor, Mr Ansan, was employed WIth the Mirustry of Agnculture, Food and Rural Affarrs, as a Techrucal Analyst, and he held that pOSItIon SInce late 1989 until hIs Job was surplussed on June 30, 1997 He began workIng for the Mirustry In 1986, on a SIX- month contract as an ApplIcatIOn Programmer ThIs was followed by three years, from 1986-1989, as a Juruor Programmer Analyst. His seruonty date IS June 16, 1986 On December 20, 1996, Mr Ansan was notIfied that hIS pOSItIOn of Techrucal Analyst was to be surplussed There was no ImmedIate redeployment opporturuty and he elected to work hIs notIce penod so as to be elIgible for dIrect aSSIgnments To that end, the gnevor completed an Employee PortfolIo and updated hIs resume His resume lIsts hIs pOSItIOn as "Techrucal Programmer Analyst" for the penod "1986 - Date" and describes hIs work as follows i \, - 2 . Technical Programmer Analyst (S02) Techrucal Support to Programmers and users m the Mamframe and Micro EnvIronment. MVS/JCL, JES2, TSO/ISPF, CLIST, COBOL and M204, RDMBS TAPE and dIsk storage space management utilIzmg DF/DS software Secunty work usmg RACF In Micro computer envIronment, supported systems wntten m Dbase III+ WAN Network management, file transfers and 3270 emulatIOn. BackuplRestore of SQL/SYBASE files . There was no mdependent lIstmg of ills work as a Jumor Programmer Analyst, or of ills SIX month contract work. In terms of hIS computer knowledge, the gnevor listed the followmg on hIS resume COMPUTER KNOWLEDGE * MS-DOS 6 2 * WINDOWS 3 1 * C 2 25 * ACCESS 2 0 * VISUAL BASIC 3 0 * ServIcmg PCs * DBASE III Plus * Data CommumcatIOn - * COBOL * M204 Database * SQL/DS He testIfied that he dId not list PL-l because he was not expert m It and had only "below mtermedIate" knowledge of that language He stated that he had varymg degrees of expertness m the listed areas, he was not expert m all of them. SectIOn 2 1 of the gnevor's Employee Portfolio describes ills "key Job responsibilItIes" WIth the Mimstry as follows for the posItIOn of Techrucal Analyst ProVIde DASD & TAPE Management Create and mamtam JCL for Pack and Dataset Backup, usmg D ,F 0 S utilitIes Arcillve, de-arcillve datas Check results (J C L ) of productIOn Jobs and take correctIve actIOns where ( necessary Momtor tape usage and compile statIstIcs ProvIde general \.. 3 techrucal support to chent branch staff and RJ.E facIhty m locatIOn of Toronto For hIs posItIOn of Juruor Programmer Analyst, he wrote as follows Support mamframe systems wntten m COBOL, PL 1 DesIgn, test & Implement Mirustry's programs Support Microcomputer systems wntten m DBASE III. Set up new databases and extract reports . The gnevor testIfied that he had expenence wntmg computer programs, pnmarily m COBOL, a thIrd general language, as a Juruor Programmer Analyst under the dIrectIOn of a Seruor Programmer SpecIfically, he wrote a number of programs for the Mirustry, mcludmg FMTS (fresh milk testmg system), TMGS (tomato gradmg system), .MP AS (milk plan audIt system) and CQTS (cream quahty testmg system) whIch was wntten m PL-l He further testIfied that he performed some hmIted programmmg as a Techrucal Analyst to correct "level one" errors, whIch dId not need to be referred to the - Programmer But hIS pnmary Job responsibihty as a Techmcal Analyst was to proVide techrucal support to programmers In early May 1997, the gnevor's Redeployment AdVIsor, Marilyn Evenngham, was adVIsed by Stephen Brown, MBS Corporate Placement, that the Mirustry of Health was consIdenng Mr Ansan for the pOSItIon of Programmer Analyst, but that additIOnal mformatIOn about hIs quahficatIOns was needed. On May 5, 1997, he e-mailed a memo to Ms Evenngham whIch she then forwarded to Mr Ansan. That memo, m pertment part, states as follows ! \ 4 Mr Ansan IS under consIderatIOn for a Programmer! Analyst (classIfied at the Systems Officer 2 level) The posItIOn develops mformatIOn to support declSlon makmg for vanous ffilruStry and external chents m operatIons, polIcy-makmg, and research. The mcumbent assIsts clIents wIth defirung theIr mformatIOn reqUIrements. The mcumbent develops solutIOns, and desIgns, wntes and tests programs The mcumbent performs prograffiffilnglanalysls tasks usmg a PL/1, SAS or FOCUS on a large MVS mamframe The pusltIOn reqUIres expenence usmg a 3GL program on a mamframe, OS/MVS, JCL and TSO/SPF, PL/1, SAS or FOCUS The employee's background demonstrates some related skllls, but I reqUIre clanficatIOn and addItIOnal mformatIOn to ensure a match eXists 1 Programmmgl Analysis I reqUIre clanficatIOn of Mr Ansan's prograffiffilnglanalysls expenence [H]IS skllls-set appears to be restncted to COBOL and dbaseIII The EP [ employee portfoho] (notably ills tenure between 1986 to present) emphasIzes tape management wIth no programmmg or analysIs As Techrucal Programmer Analyst, what programmmg responsiblhtles was he tasked wIth? 2. Consultation - The mcumbent of the posItIOn must work wIth chents to define theIr mformatIOn reqUIrements and to develop solutIOns What related expenence does Mr Ansan have to offer? Answers to these questIOns will assIst me m deterffilrung Mr Ansan' s candIdacy for the Programmer/Analyst posItIOn. Please prOVIde me wIth your response by Wednesday, May 7, 1997 The mformatIOn contamed m the May 5, 1997 e-mail largely matches a Job ad for the pOSltlon, partIcularly m regard to the "qualIficatIOns" reqUIred. Ms. Evenngham thought that she had e-mailed a copy of the Job ad to the gnevor but he dId not receIve It. The Job ad hsts the "quahficatIOns" for the posItIOn as follows ! Vaned expenence m prograffiffilnglanalysls usmg a 3GL prograffiffilng \ language on a mamframe, expenence With OS/MVS, JCL and TSO/SPF, 5 familIanty wIth a vanety of PC packages, excellent commurucatIOn and mterpersonal skills, abihty to meet deadlmes, expenence wIth PL/1, SAS or FOCUS On May 5, 1997, Mr Ansan e-malled a response to Ms Evenngham. He testIfied that she told illm to reVIew the e-mail very carefully and respond to what was asked. He vIewed It as an opporturuty for illm to have mput mto the process In ills response, Mr Ansan wrote as follows 1986-1988 Juruor Programmer/Analyst (ApphcatIOn Support) class S02 Workmg for Ont. Mirustry of Ag. & Food was responsible for collectmg data and mformatIOn from chents to wnte programs m Cobol and Dbase III. Supported apphcatIOns such as FMTS, CQTS, MP AU, TMGS on mamframe On mICro supported ApIary, Gram certIficatIOn apphcatIOns 1988-1997 Programmer Analyst (Techrucal) class S02 In tills capacIty DASD (DIrect Access Storage DeVIce) and Tape management was my mam area of work. Mamtammg mventory records of Mirustry's Tape and DASD resources Conservmg storage space by deletmg and arcillvmg files m ConsultatIOn WIth programmers and other chents Wntmg programs m M204 and COBOL to collect data and produce reports on tape and DASD Morutoflng M204 regIOn. Subffilttmg backup and restore JCL to manage files Helpmg programmers where programs have failed. Perform baSIC secunty work m M204 and RACF Help pnntmg staff So I have had almost two years expenence m prograffiffilng and analysIs before I was transferred to Techrucal sectIOn But haven't done any SAS or FOCUS When Ms Evenngham noted that he dId not mclude any mentIOn of consultatIOn expenence, Mr Ansan sent a second e-mail on May 6, 1997, willch mcluded ills first response and added the followmg \ - To answer the second questIOns Re ConsultatIOn. 6 I have related expenence In case of developmg systems for Gram Elevator and FruIt & Vegetable InspectIOn m Dbase3 I used to consult wIth the manager Mr Dock Stockton and Nelsha Beekharry User of the system to detefffilne theIr needs and requIrements ConsultatIOn I have also done wIth Coos Gans and rus staff regardmg wntmg programs for Apiary System. With Chns Shamsher regardmg buildmg a Fax Macrune database Accordmg to Ms Evenngham, she told Mr Ansan that she was sendmg hIS response to Management Board and If they thought there was a match, they would call her and she would then call rum. Eventually, she heard back from Management Board, eIther from Stephen Brown or another mdlVldual, that the mformatIOn provIded dId not show that Mr Ansan had the entry-level quahficatIOns for the Job There IS conflIctmg testImony between the gnevGr and Ms Evenngham about the role, If any, that the gnevor's supervIsor, Winston Isaac, would play m asslstmg the gnevor m trus process, and whether the gnevor was supposed to contact Winston or VIce versa, but I do not find It necessary to resolve that confhct smce It IS not germane to the central Issues m thIS case Therese Stevens, Manager InformatIOn Retneval for the Mirustry of Health, testIfied about the posItIOn of Programmer Analyst and the gnevor's qualIficatIOns for the Job In May 1997, Ms. Stevens was asked by her manager, Pat Stuckless, to reVIew the gnevor's resume to detefffilne If there was a possible match to the Job As Manager \ 7 Informaton Retneval, the pOSltlon of Programmer Analyst was to report to her She testIfied that the pOSltlOn requIred an mdlVldual wIth actual expenence - at an mtermedIate level - m prograffiffilng and analysIs m a trurd generatIOn language, plus sohd expenence m PL-1, SAS or FOCUS She stated that If the mdlVldual was not expenenced m PL-1, but had other trurd generatIon language expenence such as COBOL, they would also have to . have SAS or FOCUS knowledge In her VIew, based on rus resume, the gnevor lacked these key skills She vIewed rus Job of Techrucal Analyst as a trouble-shootmg, technIcal support role, not mvolved m desIgnIng and wntmg programs usmg PL-1, SAS or FOCUS She found no mdlcatIOn on rus resume that he had such prograffiffilng expenence Ms Stevens assessment of the Programmer Analyst posItIOn comCIdes WIth the posItIOn specIficatIOn, wruch was not provIded to the gnevor, and mdeed, wruch Ms Evenngham dId not possess eIther The Job specIficatIon hsts the "skllls and knowledge reqUIred" as follows Work reqUIres thorough knowledge of PL/1 programmmg language, structured desIgn and programmmg technIques, and good knowledge of the standards and tools to be used, file desIgn techruques, mteractlve tefffilnal use for program development and testmg; use of software packages, utIlIty programs or subroutmes for testmg optlffilzatIOn and report preparatIOn. Skill IS reqUIred m structunng and deslgrung computer programs, sometlmes complex; m deslgrung the layout of reports, mput and output forms and record, estabhsrung Job Control Language statements, m debuggmg programs Without assIstance, m translatmg program specIficatIOns mto workmg programs. The mcumbent must have sufficIent knowledge of proJect management practIces, commUnICatIOn skIlls and tact to deal effectIvely wIth chents, data centre staff, analysts and assIgned programmers The mcumbent must have the abilIty to provIde technIcal gUIdance to JUnIor staff \ ~. 8 . Tills combmatIOn of knowledge and skill IS normally acqUIred after progressIvely responsible progrmng expenence wltilln an InformatIOnal/statIstIcal applIcatIOns area m an orgamzatIOn engaged m the development and mamtenance of computenzed InformatIOn systems On cross-exaffilnatIOn, Ms Stevens was shown the gnevor's employee portfoho sectIOn mvolvmg ills work as a JUruor programmer analyst but she testIfied that although It . gave a lIttle more mdlcatIOn of prograffiffilng expenence, It dId not mdlcate at what level and she found ItS presence on the employee portfoho but not on ills resume SUSpICIOUS There IS no mdlcatIOn that Ms Stevens was gIven any InformatIOn to revIew other than the gnevor's resume Ms Stevens testIfied that she reported her conclusIOns to her supervIsor who concurred wIth her assessment. The record IS deCIdedly unclear as to what happened next or even who made the decIsIon that the gnevor dId not possess the "abihty to d~ the Job at entry level" - whether It was made by Stephen Brown or Ms Stuckless, both of them, or someone else Nor was the gnevor officIally mformed of thIS decIsIon. He learned about It when he asked ills supervIsor about the posItIOn and was told that the Job was gone DECISION Under ArtIcle 20 5 3, an employee who has been declared surplused but has not been assIgned to another posItIOn m ills ffilruStry under ArtIcles 20 5 1 or 20 5 2, "shall be assIgned to a posItIOn that becomes vacant many ffilnIStry proVIded the condItlons outlmed m ArtIcle 205 1 (a),(b),(c) and (d) are satIsfied." The only questIOn here IS \ - 9 whether the gnevor was "ffilmmally quahfied" to perform the Job of Programmer Analyst wIth the Mimstry of Health under ArtIcle 20 5 1 (c) It IS undIsputed that all of the other condItIOns set out m ArtIcle 20 5 1 were met. ArtIcle 20 5 1 (c) proVIdes as follows . An employee who has receIved notlce of lay-off m accordance wIth tills artIcle shall be assIgned to a posItIOn that becomes vacant. dunng ills or her notIce penod provIded that (c) he or she IS ffilmmally quahfied to perform he Job, tills IS defined as "the abilIty to do the Job at entry level", The GSB Junsprudence establishes that tills prOVISIon means that the employee must have "ffilmmum competence m all of the major components of the Job" OPSEU (Loebel) and Ministry of Municipal Affairs and Housing (1983), GSB No 331/82 (Venty, Vice-ChaIr), at p 22 Based on ills or her ~present abihty", usually wIthout traImng, the employee must have "skills and knowledge of the mam components of the posItIOn." Loebel, at p 22 Accord, OPSEU (Bazinet) and Ministry of Environment and Energy (1998), GSB No 1298/96 (Mikus, Vice-ChaIr) Further, the Employer's decIsIOn that an employee does not have the "ffilmmum quahficatIOns" for the Job must be correct As stated m OPSEU (J Heginbottom) and Minzstry of Revenue, GSB No 647/81 at 20, quoted m Loebel, supra at 18 "The Gnevor IS not entItled only to a fair heanng. He IS to get the poslton If he can do the work." I \. ,; -- 10 In the Instant case, the maIn component of the Job was prograffiffilng, at an Intermediate level, usmg PL-l, SAS or FOCUS The eVIdence establIshed that the gnevor had some Jumor programmmg expenence, pnmarily usmg COBOL and some hffilted PL-l expenence The only eVIdence of ills knowledge of PL-l was ills development of one program (CQST), eIght to ten years earher The fact that he dId not Include knowledge of PL-1 on hIS resume IS sIgmficant, partIcularly SInce he hsted Items m willch he had varymg degrees of expertIse, not Just those In willch he was expert It IS further underscored by the fact that he dId not hst It m response to the May 5, 1997 memo willch specIfically stated that knowledge m PL-1 as a reqUIrement of the Job Instead, he responded that, as a Juruor programmer, he wrote programs m COBOL and Dbase III, wIth no mentIOn of PL- 1 Further, by ills own adffilsslon, ills knowledge ofPL-1 was "below mtermedlate " GIven the reqUIrements of the Programmer Analyst posItIOn, tills lack of knowledge estabhshes that he dId not possess a key skill of the Job In my VIew, hIS knowledge of PL-l and expenence m prograffiffilng were msufficlent to perform the Job of Programmer Analyst Clearly, the gnevor's expenence and skills met some requIrements of the Job - consultatIOn, knowledge of JCL, the abihty to debug programs and provIde technIcal gUIdance, among others But for the mam component of the Job - deslgmng and developmg programs usmg PL-l, SAS or FOCUS - he sImply dId not possess sufficIent knowledge or expenence 11 I find It very troubhng, however, that the only InformatIOn that Ms Stevens revIewed was the gnevor's resume The gnevor's Employee Portfoho and the supplemental InformatIOn he provIded m May should have also been revIewed before an assessment of ills sUItabilIty was made There IS no IndIcatIOn, however, that the final declSlon was made by Ms Stevens Indeed, there IS no IndIcatIOn what InformatIOn the actual decIsIon-makers, whoever they ffilght be, consIdered Consequently, If tills case was sImply about a lack of commumcatIOn about the skills and expenence that the gnevor, In fact, possessed and set out In the InformatIOn he provIded (z e , the employee portfoho, ills resume and supplemental InformatIOn), the outcome would be dIfferent. As noted In the Bazinet case, supra at p 39 and the cases cIted thereIn, when management reVIews the quahficatIOns of surplus employees It must take steps to ensure that It has all the relevant InfOrmatIOn about the employees' quahficatIOns to perform the work But In thIS case, the problem was not one of commurucatIOn of skills and expenence that the gnevor possessed, but a lack of programmIng expenence and a lack of sufficIent knowledge of PL-1 Without that knowledge and expenence, I cannot conclude that he was "ffilmmally quahfied to perform the Job" wltilln the meanIng of ArtIcle 20 5 1 I have no doubt that, In tIme, he could learn the Job But on the eVIdence presented he does not possess the "present abilIty" to perform the Job of an IntermedIate Programmer Analyst. 12 I Finally, the fact that the gnevor subsequently obtaIned Programmer Analyst Jobs In the pnvate sector does not IndIcate that he was quahfied for thIS Job wIth the Mimstry of Health. The eVIdence demonstrates that the Jobs were sImilar In name, but not In content and It IS the content that matters For all of the foregOIng reasons, the gnevance IS dlsffilssed Dated thIS 13th day of November 1998 In Toronto i \. 13