HomeMy WebLinkAbout1998-0582.Rouleau.01-04-05 Decision
o NTARI 0 EMPLOYES DE LA COURONNE
CROWN EAIPLOYEES DE L 'ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 3261396
GSB#0582/98, 1011/99
OPSEU#98C293 99B8964
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THEGIDEVANCESETTLEMENTBOARD
BETWEEN
OntarIO Pubhc ServIce Employees Umon
(Roleau)
Gnevor
- and -
The Crown m RIght of Ontano
(Mimstn the EnvIronment)
Employer
BEFORE Darnel A. Harns Vice-ChaIT
FOR THE Don MartIn
GIDEVOR Gnevance OfficIer
Ontano Pubhc ServIce Employees Umon
FOR THE Carol Ann Witt, Counsel
EMPLOYER Legal ServIces Branch
Management Board Secretanat
HEAIDNG Ma, 24 Ma, 25 Ma, 26 and Juh 31 2000
2
DECISION
The Proceedmgs
There are two gnevances before the Board filed by OPSEU on behalf of the
gnevor, Stephen Roleau, an Abatement Officer wIth the MmIstry of the
EnvIronment. The gnevances deal wIth two dIfferent Job competItIOns for the
posItIOn of InvestIgatIOns Officer wIth the Mimstry of the EnvIronment. As
elaborated upon below, the Umon alleges that the mtervIew process was
fundamentally flawed m that It undervalued the gnevor's envIronmental
expenence and knowledge and overvalued expenence and knowledge of
mvestIgatIve techmques The Umon said that the Job reqUIred both "content" and
"process" abIlItIes, yet the competItIOn gave undue weIght to mvestIgatIve process
skIlls, knowledge and abIlIty and too lIttle weIght to envIronmental content skIlls,
knowledge and abIlIty The gnevor was of the VIew that there was an actIve
ammus exhIbIted by the employer agamst Abatement Officers who sought to
move up to the posItIOn of InvestIgatIOn Officer The Umon dId not rest ItS case
on such bad faith but rather upon the dIsproportIOnate emphasIs descnbed above
The Umon concentrated ItS efforts on the first Job competItIOn. The gnevor
had walked out of the mtervIew for the second competItIOn because of hIS VIews
regardmg the employer's bad faith. Accordmgly, the remedy sought by the umon
was wIth respect to the first gnevance
3
The Employer said that the gnevor lacked the breadth and depth of skIll,
knowledge and abIlIty necessary to qualIfy for the posItIOn and that the Job
competItIOn process was a fair assessment of the relevant factors
The Facts
The gnevor first worked for the MInIStry of the EnvIronment (MaE) In
1985 He was subsequently employed In a number of dIfferent capacItIes WIth
vanous employers untIl he began to work full-tIme wIth the MaE In June 1989
At that tIme he was hIred as an EnvIronmental Officer 2 to work In the "MunIcIpal
Industnal Strategy for Abatement" UnIt of the West Central RegIOn (hereafter
MISA)
His employment expenence wIth the MinIstry of the EnvIronment IS SUCCInctly set
out In hIS resume as follows
Mimstry of the Environment
West Central RegIOn, Dlstnct Office
119 Kmg Street West, cjh floor
Hamilton, Ontano L8P 4Y7
POSitIOn Environmental Officer 4 Abatement (Actmg)
(August II 1997- )
Job DescnptlOn Respondmg to complamts m-order to assess vIOlatIOns of
environmental legislatIOn. InsurIng that non-compliance Issues are corrected m a tImeh
manner Dealing With the media, public, muniCipal, and compan, officials. Issumg
tIckets and Field Orders, preparIng ProvmcIal Officer reports and appeanng as a witness
4
m court. Respondmg after hours to emergencIes as part of the MOE s Emergenc,
Response Program.
Mimstry of the EnvIronment
West Central RegIOn, Approvals & Planmng
PosItIOn EnvIronmental Officer 3 Approvals & Plannmg
(March 14 1997 - August 11, 1997)
Job DescnptIOn Assessmg CertIficates of Approval apphcatIOns for completeness.
Deahng WIth pubhc munIcIpal, and DIStrICt Office concerns. Attendmg local
council/commIttee meetmgs. Workmg WIth TechnIcal Support personnel to msure
ground and surface water concerns are addressed. Preparmg certIficate condItIons to
ensure that the actIvI~ allowed b, the certIficate IS done m an envIronmentalh sound
manner Also responsible for handhng of ApphcatIOn Fees.
Mimstry of the EnvIronment
West Central RegIOn, Approvals & Plannmg Office
PosItIOn Resource Manage 3 Approvals (Actmg)
(September 30 1996 - March 14 1997)
Job DescnptIOn Preparmg CertIficates of Approval for waste transfer and processmg
sItes. Deahng WIth pubhc, mumcIpal, and DIStrICt Office concerns. Attendmg local
council/commIttee meetmgs to explam apphcatIOns and mmIsm procedures. NegotIatmg
WIth compan, officIals WIth regards to CertIficate condItIons or financIal assurance
Issues. Also responsible for all EnVIronmental Bill of RIghts Issues for West Central
RegIOn.
Mimstry of the EnvIronment
West Central RegIOn, DIstnct Office
PosItIOn EnVIronmental Officer 3 Abatement
(Juh 1, 1994 - September 30 1996)
Job DescnptIOn Respondmg to complamts m-order to assess vIOlatIOns of
envIronmental legIslatIOn. Insurmg that non-comphance Issues are corrected m a tImeh
manner Dealmg WIth the medIa, pubhc, munIcIpal, and compan, officIals. Issumg
tIckets and FIeld Orders, preparmg ProvmcIal Officer reports and appearmg as a wItness
m court. Respondmg after hours to emergencIes as part of the MOE's Emergenc,
Response Program.
Mimstry of the EnvIronment
West Central RegIOn, RegIOnal InspectIOns
PosItIOn Semor EnVIronmental Officer InspectIOns (Actmg)
(Januan 24 - Juh 31 1994) & (June 17 - November 4 1991)
5
Job DescnptlOn Prepanng DIrectors InstructIOns for the creatIOn of new PCB sItes.
Updatmg the PCB Computer Inventon Deahng WIth the pubhc, munICIpal, and
compan, officIals. Notr~'mg and advIsmg RegIOnal, DIStrICt and IEB staff of SItuatIOns
of non-comphance and/or contentIOus Issues. Attendmg meetmgs of the PCB
Coordmators CommIttee InspectIOn of PCB destructIOn SItes for comphance WIth C of
A s. ReVIew of new approvals deahng WIth PCB Issues for Approvals Branch.
Mimstry of the EnVIronment
West Central RegIOn, RegIOnal InspectIOns
POSItIOn EnvIronmental Officer 3 InspectIOns
(Januan 28, 1991 - June 30 1994)
Job DescnptlOn InspectIOn of PCB Waste Management SItes. Wntmg of reports
assessmg comphance WIth envIronmental legIslatIOn. Prepanng DIrectors InstructIOns
for the transfer decontamma tIon, and storage of PCBs. Deahng WIth the medIa, pubhc
munICIpal, and compan, offiCIals. NotI~'mg Semor staff of SItuatIOns ofnon-comphance
and contentIOus Issues Testr~'mg m court as an expert WItness m regards PCB waste
Mimstry of the EnVIronment
West Central RegIOn
POSItIOn EnVIronmental Officer 2, MISA
(June 6 1989 - Januan 28 1991)
Job DescnptlOn VenficatIOn mspectIOns, MISA audIts, submIssIOn of legal samples,
reVIew of data submIssIOns, deahng WIth compan, offiCIals and theIr concerns/problems,
the wntmg of letters regardmg the MISA program.
The gnevor applIed for a pOSItIOn as InvestigatIOns Officer (hereafter 10) In
November 1997 IntervIews took place In February 1998 The qualIficatIOns for
the pOSItIOn were set out on the Job postIng In the follOWIng terms
QuahficatIOns Demonstrated expenence m envIronmental or cnmmallaw enforcement,
mvestIgatIve techmques and JudICIal procedures and relevant legIslatIOn. Expenence
testr~'mg before a court or ct:her JudICIal bod, Demonstrated abih~ to acqUIre a
knowledge of mdustnal processes and pollutIOn control. Excellent judgement, analytical,
organIzatIOnal and communIcatIOn (oral and wntten) skills. Demonstrated abih~ to
mterpret and apph legIS latIon. Abih~ to acqUIre computer and photographIC skills.
OccaSIOnal travel throughout Ontano and a vahd drIvers hcense IS also reqUIred.
6
At the tIme, of the postmg, the gnevor was an Abatement Officer (hereafter
AO) wIth the MOE He revIewed the qualIficatIOns set out m the Job postmg m
the context of hIS expenence as an AO He belIeved that the 10 posItIOn was a
natural progressIOn from bemg an AO because the AO was responsIble for the
mItIal mvestIgatIOn of envIronmental offences as part of theIr dutIes to obtam
complIance wIth the vanous envIronmental statutes In seekmg to ensure
complIance, the AO mtervIews wItnesses and gathers other eVIdence mcludmg
samples and photographs m order to determme whether there are grounds to
conclude that an envIronmental offence has occurred. Once the eVIdence leads to
that conclusIOn, the matter would be handed to the 10 for further mvestIgatIOn and
prosecutIOn. The gnevor said that m hIS capacIty as an AO he had prepared
occurance reports that detailed hIS belIef that an offence had occurred and the
basIs of such belIef Those reports would have gone on to the InvestIgatIOn and
Enforcement Branch for assIgnment to an 10
The gnevor also said that he had gIven eVIdence two or three tImes m court
proceedmgs and was accordmgly famIlIar wIth JudIcial proceedmgs His most
dIrect courtroom expenence was whIle he worked as an AO from January 1991 to
July 1994, m the West Central RegIOn. Dunng that tIme he was mvolved wIth the
Management of PCB Waste Management sItes It was m the course of that
assIgnment that he photographed 350 PCB sItes and assIsted Crown Counsel and
the 10 m court proceedmgs m whIch he was a MOE wItness
7
In the gnevor's VIew, the "relevant legIslatIOn" referred to m the Job
postmg was the relevant substantIve envIronmental legIslatIOn such as the
Environmental Protection Act the Ontario Water Resources Act the Niagara
Escarpment Act and the Pesticides Act all of whIch he was famIlIar wIth. The
only procedural legIslatIOn the gnevor thought was relevant was the Provincial
Offences Act smce It was under that Act that tIckets were Issued for contraventIOn
of the substantIve legIslatIOn. He said that he had Issued more than one tIcket m
hIS capacIty as an AD
The gnevor also testIfied that m hIS capacIty as an AD he had knowledge of
vanous mdustnal processes, pollutIOn control, excellent Judgment, analytIcal,
organIzatIOnal and commUnICatIOn skIlls He had expenence mterpretmg and
applymg legIslatIOn, as well as computer and photographIc skIlls developed or
refined on the Job as an AD He also had a valId dnver's lIcense
The gnevor testIfied about the Job competItIOn process He said that he was
surpnsed at the questIOns asked dunng the mtervIew because only one questIOn
related dIrectly to hIS substantIve knowledge of envIronmental law That questIOn
was tIme - lImIted and dId not provIde hIm wIth an opportUnIty to showcase hIS
knowledge of envIronmental law The vast maJonty of the questIOns related to
mvestIgatIve technIques such as the Issuance of search warrants He said to hIS
8
knowledge only one search warrant had been executed In hIS tIme as an employee
wIth the MOE
HavIng receIved the hIghest score, gnevor filed a gnevance, SInce no one
was selected to fill the advertIsed posItIOn. The competItIOn was re- run as an open
competItIOn. The gnevor applIed to the open competItIOn and found the same
overemphasIs on InvestIgatIve procedure at the expense of substantIve
envIronmental law content He was agaIn unsuccessful but dId not gneve It was
filled by an outsIde candIdate
The gnevor applIed for the 10 posItIOn agaIn when It was posted as a
secondment opportumty He attended the IntervIew but left when he heard the
first questIOn. It was apparent to hIm that hIS expenence would Just be repeated,
so It was futIle to stay The second gnevance before the Board relates to that
competItIOn.
Terry O'NeIll testIfied on behalf of the employer He has been wIth the
MOE SInce 1974 At the tIme of the heanng he was the Programme Manager for
West, Central and Eastern RegIOn. He has never been an InvestIgator He
explaIned that the 10's report to a co-ordInator who then reports to hIm. That IS,
the InvestIgatIOn and Enforcement Branch IS orgamzed centrally, rather than
regIOnally He descnbed the 10's as the "eyes and ears of the MOE" When an
9
alleged vIOlatIOn IS uncovered an occurrence report IS generated whIch goes to
hIm. He decIdes whIch occurance reports reqUIre further actIOn. The co-ordInator
then assIgns the matter to an 10 The 10 proceeds wIth the InvestIgatIOn IncludIng
the preparatIOn of the Crown Bnef Some 10's are traIned as prosecutors and may
handle the prosecutIOn In Court Other cases would be refered to the Legal
ServIces Branch for prosecutIOn. There are 10s In all the dIstnct offices across the
ProVInce
Mr O'NeIll supervIsed the Job competItIOns at Issue here He said that he
had been dIrected to lImIt the competItIOn to employees of the MOE and the
Ontano Clean Water Agency, due to the large number of surplus employees,
whIch resulted from the 1996/97 dOWnSIZIng There were SIX applIcants for the
first competItIOn. One was dIsqualIfied as outsIde the 40 km lImIt and one
dropped out, so the remaInIng four were IntervIewed. There were three people on
the selectIOn panel They developed the IntervIew questIOns USIng a collectIOn of
questIOns kept on file He said that the questIOns were matched to the selectIOn
cntena, developed by the Branch and used as the standard. Mr O'NeIll finalIzed
the questIOns that would be used.
Mr O'NeIll's general conclusIOn regardIng the gnevor was that he had no
practIcal abIlItIes but good potentIal He dId not feel that the gnevor could go Into
the Job as a full-tIme InvestIgator and perform as reqUIred. He said that the panel
10
consIdered the applIcatIOns, resumes and results of the mtervIew It also occurred
to hIm that m the past he had not seen any occurance reports from the gnevor,
even though he routmely reVIews occurrence reports from the field. That IS, he
relIed on hIS memory of hIS day to day actIvItIes as the Programme Manager and
concluded that the gnevor dId not file enough occurrence reports as an AO
Although he could have done a computer search to determme the number of
occurrence reports filed by the gnevor, he dId not do so
Mr O'NeIll said that he dId not check the gnevor's references or
performance evaluatIOns because none of the candIdates had done well enough to
warrant further enqUIry
The foregomg excerpts from the eVIdence set out some aspects of the
dIspute between the partIes The Board has carefully consIdered all of the
testImony of both wItnesses and the exhIbIts filed. It IS most convement to turn
now to a compendIOus consIderatIOn of the mtervIew questIOns
As IS the usual practIce, the panel was made up of three mdIvIduals, m thIS
mstance, Terry O'NeIll, Mana Kusznmyk and Dave Bradbury There were
thIrteen questIOns asked. The matnx of the gnevor's scores IS as follows
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Ques. # Potential Sel. 1 Sel.2 Sel.3
Score
1 (a) 5 1 1 1
1 (b) 10 4 3 4
2 18 10 10 15
3 5 5 5 5
4 7 6 6 5
5 10 3 3 3
6 6 4 4 4
7 15 6 6 6
8 20 12 10 8
9 4 2 2 0
10 (a) 4 2 2 1
1 0 (b) 3 1 lIz 2 2
11 3 3 3 3
Total 110 59~ 57 58
The thrust of the Uillon's case IS that the questIOns were overly concerned
wIth the genenc process of law enforcement and undervalued knowledge of
substantIve envIronmental law That IS, the law that was to be enforced.
The selectIOn cntena used III the Job competItIOn were as follows
SELECTION CRITERIA
INVESTIGATIONS OFFICER
1) Investl2atIve/Envlronmental Expenence
30%
?? Demonstrated expenence m mvestIgatIve procedures obtamed through
the mdepth mvestIgatlOn of cases of a cnmmal or envIronmental nature
which mcludes seekmg out eVidence conductmg mtervlews to extract
mdependent facts, analvzmg the eVidence and fact to draw conclUSIOns,
executmg search warrants and testIn'mg m court.
?'1 Demonstrated expenence m envronmental enforcement mcludmg
conductIOn mspectlOns, developmg abatement programs, preparmg and
12
Issumg control documents, partlclpatmg m pubhc meetmgs and
prepanng and fihng occurrence reports.
2) InvestI2atlve/Envlronmental Knowled~e
20%
?'1 A demonstrated knowledge of the due process oflaw the rules of
eVIdence and mvestIgatIve techmques
?'1 A demonstrated knowledge of safe samphng procedures, pollutIOn
control the on a basIc understandmg of mdustrIal processes, an abih~ to
make a prehmman assessment of pollutIOn on the envIronment
3) Le2IslatIOn
15%
?? Abih~ to mterpret and apph legIslatIOn mcludmg POA, eee EP A,
OWRA, P A, EAA, EB~ EVIdence Act.
4) LltI~atlOn
10%
?? PrevIOus related expenence m prepanng mformatIOns, summonses and
subpoena
?'1 Demonstrate expenence at testrf\'mg m court or before an, other JudIcIal
bod,
5) CommUnICatIOns
10%
?'1 Demonstrated abih~ to prepare accurate and detailed reports and clear
correspondence
?'1 Demonstrated abih~ m oral communIcatIons
?'1 Demonstrated ablh~ to commumcate effectIveh wIth all manner of
mdlvlduals
6) Jud~ement
10%
?'1 Abih~ to use sound Judgement m makmg recommendatIons on the
results of mvestIgatIOns, deahng WIth mdlvldual mcludmg regulated
partIes, the pubhc other agencIes, court officials and mmlsm staff
7) Other
5%
?? Abih~ to acqUIre basIc computer and photograph, skills
Mr O'NeIll testIfied that m each of the seven areas the percentage value
was roughly dIvIded between the bulleted subheadmgs However, one bulleted
13
pomt was not necessanly weIghted heavIer than another Both wItnesses testIfied
as to theIr VIews of how the mtervIew questIOns related to the selectIOn cntena.
Reasons for DecIsIOn
The first two questIOns asked the applIcants to descnbe a sIgmficant law
enforcement mvestIgatIOn m whIch they played a promment part. That questIOn
relates to the first of the selectIOn cntena. It also most narrowly fits the first
bulleted pomt, mvestIgatIve expenence, rather than envIronmental expenence,
although both areas came mto play The gnevor's answers relIed heavIly on
envIronmental enforcement rather than mvestIgatIve procedures The gnevor's
complamt regardmg that questIOn was that the tIme lImIt of seven mmutes was too
short. He candIdly admItted that the example he pIcked mIght not have been the
best one and that he foundered m hIS answer overall There IS no real challenge to
the sconng. The questIOns were worth 5 and 10 marks respectIvely
The thIrd questIOn, worth 18 marks, asked the applIcant to dISCUSS three
mvestIgatIve techmques, theIr strengths and weaknesses Mamfestly, thIS questIOn
IS dIrected to the second cntenon. LIke the first, the second cntenon IS dIvIded
mto two bulleted pomts, mvestIgatIve knowledge and envIronmental knowledge
The questIOn asked only addresses the first bullet of cntenon 2, mvestIgatIve
knowledge
14
The fourth questIOn, worth 5 marks, asked, "What IS a voir dire and what IS
ItS purpose" AgaIn, thIS questIOn tested InvestIgatIve knowledge expressed as
"the rules of eVIdence" In bullet one of cntenon 2
The fifth questIOn, worth 7 marks, dealt wIth a claim of SolIcItor-clIent
pnvIlege WIth respect to company records seIzed under a search warrant. AgaIn,
that questIOn relates to rules of eVIdence
The sIxth questIOn reads as follows
Q 5 ProvIde a hst of steps/actIons/events/dutIes that could occur followmg the lavmg of
charges, to the tIme when a penal~ IS paid m full, m whIch an mvestIgator IS likeh to be
mvolved.
The expected answer IS a lItany of the due process of law AgaIn, thIS questIOn,
worth 10 marks, relates to the first bullet of the second cntenon.
QuestIOn seven asks for a defimtIOn of a "stnct lIabIlIty offense" AgaIn, It most
closely fits the first bullet of the second cntenon. ThIS questIOn IS worth 6 marks
15
QuestIOn eIght asks, "What IS a Search Plan and what should It Include?" AgaIn,
It seeks InvestIgatIve knowledge In the terms expressed In the first bullet of the
second cntenon. ThIs questIOn IS worth 15 marks
QuestIOn nIne deals wIth a hypothetIcal sItuatIOn InvolVIng contradIctory
statements from two company employees IntervIewed regardIng "the
CIrcumstances of a spIll (caused by the company), whIch IS obvIOusly a vIOlatIOn
of a MOE regulatIOn." Clearly the substantIve envIronmental law IS not an Issue
The expected answer IS such a convement summary of the factors to be consIdered
In assessIng contradIctory evidence that It IS useful to set It out
- Evaluate m hght of other eVIdence or known facts
- ConsIstenc,
- Estabhsh pomts of sImilan~
- Impact of external factors e g. ac to gnnd, revenge/reward
- Credibih~ /verbal behavIOur
- Expenence/apparent famiharI~ WIth events, processes, eqUIpment, safe~
reqUIrements
- Procedures
- POSItIOn and/or responsibih~ level m the compan,
- Advantage/dIsadvantage to be gamed or lost
- Non-verbal behavIOur/bod, language
- Peer pressure
- Self assurance or mtImIdated
- What makes sense
- Morah~ or moral standards
QuestIOn mne IS worth 20 marks and agaIn deals only WIth the first bullet of the
second cntenon.
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QuestIOn ten IS worth 4 marks asks for a defimtIOn of the "Judge's Rules", that IS,
the need to cautIOn a wItness before takIng a statement. AgaIn, the first bullet of
the second cntenon.
QuestIon eleven asks for an explanatIOn of "a program approval" QuestIOn
twelve asks a specIfic questIOn regardIng fines under the Environmental
Protection Act and questIOn thIrteen asks If a person who has receIved a Program
Approval enJoys any pnvIlege In regard to prosecutIOn. Those questIOns are worth
4, 3 and 3 marks respectIvely and all test knowledge of substantIve envIronmental
legIslatIOn, beIng cntenon three
AccordIngly, vIewed obJectIvely, the questIOns asked addressed bullet one
of cntenon 2 to a value of 85 marks out of a total possIble of 110, or 77% Fully
three-quarters of the marks were allocated to that selectIOn cntenon. The gnevor
scored 47 out of 85, beIng 553% The eVIdence establIshes, and I so find, that the
gnevor obtaIned a paSSIng grade on what IS clearly a comprehensIve test of hIS
knowledge of genenc InvestIgatIve techmques and the law applIcable thereto
In hIS testImony Mr O'NeIll reconstructed the dIstnbutIOn of the pOInt
scores among the selectIOn cntena. Indeed he said that pnor to the heanng, and as
part of hIS preparatIOn for the heanng, he had created a summary document wIth
17
Just such a dlstnbutIOn on It That document was sought to be mtroduced as
eVIdence The Uillon objected and the ObjectIOn was upheld because the summary
dId not meet the elementary eVIdentIary test of contemporaneous creatIOn to allow
Its use as an aide memoire In hIS eVIdence he gave a comprehensIve account of
how the questIOns properly related to the welghtmg set out m the selectIOn cntena.
I reject that account as an ex post facto ratIOnalIzatIOn. I have no doubt that the
Uillon IS correct m ItS assertIOn that the questIOns were skewed towards
mvestIgatIve process and dId not adequately test the gnevor's knowledge of the
substantIve envIronmental law
The selectIOn cntena set out above were developed from the Position
Specification for the 10 posItIOn. Item 4, of the Position Specification IS entItled
"SkIlls and Knowledge reqUIred to perform Job at full workmg level", and It reads
as follows
4 Skills and knowledge reqUired to perform Job at full workmg level (Indicate
mandatory credentials or licences, If applicable)
The duties of thiS positIOn reqUire an extensive knowledge of mvestIgatIve techniques,
due process of law the Judicial process, rules of eVidence and court procedures. A
thorough knowledge of the EP A, OWRA, EAA, P A and NEDP A and regulatIOns made
thereunder
A comprehensive understandmg of the ProvmcIaI Offenses Act, OntarIO and Canada
EVidence Acts. A workmg knowledge of Cnmmal Code of Canada and other related
environmental legislatIOn such as the Canadian Environmental ProtectIOn Act and the
Flshenes Act. A knowledge of the procedures prescribed m the Environmental Bill of
Rights. A sound knowledge of the the on and practIces related to environmental
18
pollutIOn and pollutIOn control technology A basIc knowledge of mdustrIaI processes
and operatIOns. EffectIve commUnICatIOn skills, both oralh and wntten are essentIal.
Performance of these dutIes also reqUIres keen powers of observatIOn, thoroughness,
attentIOn to detail and abih~ to thmk. 10gIcalh BaSIC computer skills and photograph,
skills are also needed. Incumbent reqUIres a vahd drIvers hcense
JUDGEMENT
Work. IS performed under general dIrectIOn of the regIOnal supervIsor Judgement and
tact are essentIal m conductIng complex mvestIgatIOns WIth mm1ll1um mput from
supervIsor As an mvestIgator and as the pnme mlnISm representatIve a ven hIgh level
of Judgement IS necessan m deahng WIth mdusm munlclpahtIes, lawyers and Judges m
provldmg mformatIOn and guIdance m relatIOns to proposed charges. As envIronmental
mvestIgators, Judgement IS reqUIred to Implement appropnate legal actIon. Judgement IS
also reqUIred when collectmg eVldence/takmg statements observmg rules of eVldence/
preparmg and servmg legal documents. Sound Judgement IS also needed when
conductmg mtervlews, especlalh where mdlvlduals ma, be accused and ma, also be of
dubIOus character
ACCOUNT ABILITY
The posItIOn IS fulh accountable for decIsIOns made WIth respect to matters requmng
expertIse m the field of mvestIgatIOns m deahng WIth cases of non-comphance and m the
preparatIOn of prosecutIOn packages. Inappropnate recommendatIOns madequate
technIcal findmgs or mcomplete documentatIOn of eVIdence could result m consIderable
financIal losses to the mlnISm and to other partIes and loss of the mlnISm s credibih~ m
purSUIt of regulaton comphance
CONTACTS
External
The frequent pnman pomt of contact IS WIth the regulated pubhc F or the purpose of
obtammg eVIdence m an mvestIgatIon contacts will mclude officers of corporatIOns,
dIfferent levels of management, professIOnals, operatIOnal and technIcal employees and
the general pubhc Regular contacts mvolvmg the Judlclan are made for the purpose of
processmg legal adnunIstratIve documents and attendmg court. Regular contacts IS made
WIth experts from the federal government to obtam eA1Je rt eVIdence OccasIOnal contacts
are made WIth the medIa and professIOnal aSSOCiatIOns to provIde mformatIOn.
OccasIOnal contact IS made WIth officIals of out provmce and federal enforcement
agencIes to exchange mformatIOn on enforcement mltIatIves or partIcIpate m Jomt forces
mvestIgatIOns.
Internal
The frequent contacts are made WIth envIronmental officers, management, technIcal and
speclahst wlthm the mmlstn for the purpose of revlewmg or obtammg eVIdence On
occaSIOn contact will be made WIth senIor mlnISm staff to obtam eVIdence or provIde
mformatIOn. Regular contact IS made WIth crown counsel to reVIew cases and regular
contact IS also made wIth mlnISm experts and experts from wlthm the provmclal
government to obtam expert eVIdence OccasIOnal contacts are made WIth provmcIaI
agencIes to exchange mformatIOn on enforcement mltIatIves and partIcIpate on Jomt force
mvestIgatIOns.
19
As can be seen from both the selectIOn cntena and the Position
Specification, the Job Postmg Itself dIsproportIOnately emphasIzes the genenc
mvestIgatIve aspects of the posItIOn. The Job Postmg reqUIres a "demonstrated
abIlIty to acqUIre a knowledge of mdustnal processes and pollutIOn control" The
Job SpecIficatIOn and purported selectIOn cntena reqUIre present knowledge of
mdustnal processes and pollutIOn control ThIs Job selectIOn process was senously
compromIsed by ItS failure to value appropnately envIronmental knowledge
Although the selectIOn cntena were mtended by the panel to reflect the descnptIOn
of the Job m the PosItIOn SpecIficatIOn, the questIOns formulated to capture those
cntena fell far short of that goal
I am also troubled by Mr O'NeIll's admIssIOn that he took mto
consIderatIOn hIS ImpressIOn that the gIevor had not been actIvIst enough whIle
actmg as an A 0 Mr O'NeIll said that as part of hIS dutIes occurance reports from
AO's cross hIS desk. He said m chIef that one factor he consIdered was that as a
manager who read occurance reports he wondered why he had not seen any from
the gnevor ThIs pomt was elaborated upon m hIS cross- exammatIOn. He
admItted that he dId not know the number of occurance reports the gnevor mIght
have filed, but an AO should be generatmg occurance reports and he had not
notIced the gnevor's When he was closely questIOned on thIS pomt, It was
establIshed that Mr O'NeIll was only m a posItIOn to see the gnevor's occurance
reports from August 1997 to January 1998, whIle the gnevor was m the posItIOn of
20
actIng PO at the EnvIronmental Officer 4 level By the tIme of the IntervIew In
February 1998 the gnevor was back In the Approvals Branch. Dunng the
gnevor's prevIOUS stInt as an AO (July 1994 to September 1996) Mr O'NeIll was
not the Programme Manager and was In no posItIOn to form any ImpreSSIOn at all
On sum, It IS clear that Mr O'NeIll relIed on a mere ImpreSSIOn that the
gnevor had not Issued many occurance reports and, IronIcally, he made no effort
to actually InvestIgate the facts He said he dId not have to check the number of
occurance reports filed by the gnevor because he could rely on hIS own memory
He said that he tended to form an OpInIOn because he sees those who do
comprehensIve occurance reports, he said, "I do get some sense" He also said
that there mIght be 13,000 occurrence reports filed In the regIOn annually, but he IS
only Interested In vIOlatIOns that recommend actIOn. He also could have pnnted
out a lIst of the gnevor's occurance reports but dId not do so Instead he relIed on
hIS ImpressIOn. Further, that ImpreSSIOn was not shared wIth the other panel
members
Another flaw alleged by the UnIon was the failure of the panel to refer to
the gnevor's personnel file The file was entered as an exhIbIt In these
proceedIngs The most recent "Performance PlannIng and ReVIew" document on
file was completed In January 1998, beIng a few days pnor to the 10 IntervIews It
was certaInly completed pnor to the competItIOn's selectIOn notIficatIOn date of
21
February 20, 1998, as set out on exhIbIt 6, the mformatIOn form provIded to the
gnevor at the mtervIew I find that It was aVailable to the selectIOn panel yet they
dId not refer to It. ThIS Board has on numerous occaSIOns made It clear that It IS
mcumbent upon a selectIOn panel to reVIew these documents Indeed, the
employer shares that VIew The "DIrectIves and GUIdelmes" of the Human
Resources Secretanat mcludes the followmg reqUIrement to reVIew personnel
files
Personnel File Revie>t and Performance Appraisals
These tw 0 assessment tools should not be overlooked as potentIal sources of mformatIOn
about a candIdate s past performance The Gnevance Settlement Board consIders
competItIOns flawed where thIS mformatIOn has not been assessed b, all selectIOn board
members.
What do I do with the information?
InformatIOn obtamed from these sources can provIde leads that should be followed up m
reference checks or b, mtervIew The, ma, contam both posItIve and negatIve
mformatIOn, such as letters of appreCiatIOn or dISClphnan actIOn reports. When
exammmg files and appraisals, conSIder onh mformatIOn that IS relevant to the selectIOn
cntena for the Job bemg staffed and aVOId makmg unsupported mferences about the
candIdate
Had the selectIOn panel checked the gnevor's most recent performance appraisal It
would have found the followmg
Part 1 ExpectatIOns and Standards
For this review penod, review and summanze the objectives set out m Part 3
(Future Objectives Planned for Next Penod) from prevIOus evaluatIOn If available.
The purpose of this discussIOn and review IS to ensure that the standards and
expectatIOns of those objectives were clear (If Part 3 was not completed preVIOusly,
review performance agamst reqUirements of the job speCificatIOn and/or work
plans.)
22
Stephen was moved mto the DIStrIct Office m Juh 1994 as part of a staff redIstributIOn.
Smce that tIme he has been an envIronmental officer wIth normal range of
responsibihtIes for a geographIcal area. Hat area was the part of Hamilton Wentworth
east ofHm 20 and then changed to Norfolk..
Stephen s Mam responsibihtIes mcluded mspectmg and reportmg on sources of pollutIOn,
respondmg to complamts of envIronmental pollutIOn and mfractIOns, negotIatmg
abatement programs and recommendmg IEB mvestIgatIOn mfractIOns. Stephen has
expenence m Issumg FIeld Orders and POA offense notIces.
Smce thIS IS Stephen s first performance reVIew at thIS office It IS not possible to
evaluate performance agamst prevIOus plans Stephen s ke, accomphshments mclude
1. DIStrIct resources for dehven of Reg 362 whIch mcluded coordmatIOn of the
DIStrIct mspectIOn commItments, provIdmg technIcal advIse mamtammg PCB
data base
2. Served as DIStrIct rep for JHHSC and conducted workplace safe~ mspectIOn
3 Served field order for a sIte clean up m Stone, Creek
4. Ke, mvolvement WIth a prosecutIOn for sec 14 sec 9 EP A vIOlatIOns on a
medmm SIze meat processmg plant.
5 NegotIated successful abatement plan at meat processmg plant
6. IdentIfied and abated a mystenous odour source m lower Stone, Creek
7 AchIeved Part V comphance at plastIc processmg plant m SImcoe
8. Abated air emISSIOn problem at metal processmg plant m SImcoe
9 Abated panIt overspra, problem at a metal coatmg plant m Stone, Creek
Part 2. Overall EvaluatIOn Of Performance
An overall summary ofthe employee's performance. If development IS reqUIred m
certam areas, a plan for achIevmg thIS should be mcluded.
Stephen IS not bound b, ngorous structure He wilhngh provIded adVIce and acted as a
resource to the DIStrIct on Reg 362. He regularh accepted tasks outsIde of geographIcal
area. He willmgh moved from dutIes m Hamilton Wentworth to HaldImand Norfolk.
ThIs demonstrates hIS flexibih~ and teamwork.
Stephen has effectIveh communIcated WIth mternal and external chents on hIS area of
expertIse m Reg 362.
Stephen s attendance and punctuah~ do not pose an, performance concerns. He often
works beyond normal expectatIOns of work hours for no formal reward.
Stephen IS wilhng to do what It takes to provIde excellent customer servIce He does not
pass-off' but wIll m to set up a one wmdow contact.
Stephen s expenence and formal educatIOn provIdes a sound foundatIOn for
understandmg technIcal Issues that ma, anse both mSIde and outsIde the Mimsm ThIs
plays out m qUIck understandmg of mdustrIal processes and pollutIOn controls hence a
strong abih~ to solve problems.
23
Stephen dIsplays a strong commItment to envIronmental protecTIon.
Attendance and Punctuahty.
(Comments wIth respect to attendance and punctuahty durmg thIS performance
reVIew penod)
No Concerns.
The appraisal set out above was a contemporaneous front-lIne assessment
of the gnevor, whIch clearly mdIcates that he meets the envIronmental content
aspects of the 10 posItIOn. Indeed, he appears to exceed them. If nothmg else It
would have dIssIpated Mr O'NeIll's ImpreSSIOns as erroneous The prevIOUS
evaluatIOn covered a 26- month penod endmg m Apnl 1993 Dunng that penod he
was m the PCB InspectIOn Umt, as an EnvIronmental Officer - InspectIOns (E03)
His performance evaluatIOns mdIcated a competence m envIronmental expenence
and knowledge, legIslatIOn, lItigatIOn, commumcatIOn and Judgement as well as a
demonstrated abIlIty m computer and photography skIlls
There were other concerns raised by the umon regardmg the flaws m thIS
competitIOn. There was no effort made to check the gnevor's references nor speak
to hIS supervIsors There was also an allegatIOn relatmg to whether a notice was
sent to the gnevor confirmmg receIpt of hIS applIcatIOn. Mr O'NeIll said there
was not, even though the DIrectives and GUIdelmes reqUIre such confirmatIOn. All
m all, It IS clear to me that there was no genume attempt to assess the gnevor
24
agamst the selectIOn cntena and the Job reqUIrements The competItIOn was
flawed and the Board Issues a declaratIOn to that effect
I am satIsfied on the basIs of the foregomg that the gnevor had the skIlls
and knowledge reqwred to perform the 10 Job at a full workmg level That
conclusIOn IS buttressed by the followmg two practIcal consIderatIOns FIrst, Mr
O'NeIll's eVIdence was to the effect that there are gradatIOns of expertIse amongst
the 10's For example, not all 10's are tramed as prosecutors HIS eVIdence was
that an entry level 10 would carry a caseload of approxImately seven cases The
mference to be drawn from the eVIdence IS that a person startmg out as an 10
would not necessanly be gIven the hardest cases Second, accordmg to the
PosItIOn SpecIficatIOn and the eVIdence at the heanng fully 10% of the dutIes of
the 10, are m- house trammg. The fact IS, everyone hIred as an 10 IS reqUIred to
complete a trammg programme after bemg hIred.
The DecIsIOn
The Board declares that Job CompetItIOn # EE-IOl/IE/97 was fatally
flawed. The gnevance IS allowed. I turn now to the appropnate remedy As set out
above, the gnevor obtamed a passmg grade on a ngorous test of hIS knowledge of
due process and clearly meets the remammg selectIOn cntena as IS eVIdent from
hIS performance reVIew and on the Job expenence In my VIew he ought to have
25
been awarded the posItIOn. 1 make thIS findmg wIthout reference to the gnevor's
concerns regardmg the emp loyer's motIvatIOns m the runnmg of the competItIOn.
Accordmgly, the gnevor IS to be awarded the next, comparable 10 posItIOn. He IS
also to be fully compensated for hIS monetary losses, If any That loss runs from
February 20, 1998, as that IS the date by whIch notIficatIOn of the selectIOn was to
be made 1 remam seIzed to deal wIth any outstandmg or ImplementatIOn Issues
Dated at Toronto, thIS 5th day of Apnl, 2001
Damel A. Hams, VIce Chair