HomeMy WebLinkAbout1999-1402.Sunga.01-03-21 Decision
o NTARI 0 EMPLOYES DE LA CO['RONNE
CROWN EMPLOYEES 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) 326-1396
GSB # 1402/99
OPSEU#99E232
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Sunga)
Gnevor
- and -
The Crown m RIght of Ontano
(Mimsm of the EnvIronment)
Employer
BEFORE Darnel A. HarrIS V Ice Chair
FOR THE Don Martm
GRIEVOR Gnevance Officer
Ontano PublIc ServIce Employees Umon
FOR THE LIsa Compagnone Counsel
EMPLOYER Legal ServIces Branch
Mimsm of CommunI~ and SocIal ServIces
HEARING February 20, 2001
DECISION
The gnevor, EstrellIta Sunga, was declared surplus to the needs of the
MInIstry of the EnvIronment At that tIme she unsuccessfully applIed for the
posItIOn of ApplIcatIOn Processor and filed two gnevances Those gnevances were
settled and thIS matter anses out of the settlement. As part of the settlement of
those two gnevances, Ms Sunga was gIven the opportUnIty to be IntervIewed for
the job and be awarded the posItIOn If she should score 70 out of 110 pOInts on the
IntervIew She dId not reach that threshold. She says that the IntervIew was not
fair and comes before the Board now for a reVIew of that competItIOn. At thIS
stage, the UnIon has closed ItS case and agreed that the Board should determIne
whether It has made out a prima facie case wIthout puttIng the employer to ItS
electIOn as to whether or not It wIll call eVIdence
THE FACTS.
The background to thIS matter IS a reorganIZatIOn of the Approvals and
Assessment Branches of the MInIStry Under the pnor structure the gnevor
worked as an InformatIOn and ReceIvables Clerk. In that capacIty she would
receIve applIcatIOns for CertIficates of Approval She revIewed them for accuracy
and completeness, ensured that the appropnate fees had been paid, coded and
logged the applIcatIOn for trackIng and assIgnment purposes and sent them on to
the co-ordInator for the responsIble sectIOn (NoIse, AIr, Water, Sewage) The
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SectIOn Co-ordInator would then assIgn the applIcatIOn to an engIneer for reVIew
The gnevor said that she was reqUIred to know whether an applIcatIOn was
covered by any legIslated or regulated exceptIOn from the reqUIrement to obtaIn a
CertIficate of Approval If It was, she would refer the file to the manager who
would deal wIth It dIrectly
The reorganIZatIOn empowered the new posItIOn of ApplIcatIOn Processor
wIth authorIty to deal wIth applIcatIOns In theIr entIrety That IS, they receIve the
applIcatIOn, reVIew It, recommend actIOn and approve or reject the applIcatIOn.
The employer said that as a result the new posItIOn reqUIres much greater techmcal
expertIse, whIch the gnevor lacks
Here the Umon says that the re-run competItIOn for the posItIOn of
ApplIcatIOn Processor was fatally flawed In two respects FIrst, one of the
questIOns was gIven a dIsproportIOnately hIgh value Second, the IntervIewers dId
not accurately record the gnevor's answers, thereby failIng to accurately reflect
her actual knowledge The gnevor testIfied that she worked hard to prepare for the
IntervIew and was surpnsed that she had not been successful
The Board IS beIng asked to rule on whether or not the Umon has made out
a prima facie case It has not done so, even when consIdered on a best case basIs
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The followmg chart sets out the scored questIOns, theIr value and the scores
awarded by the three mtervIewers
Scores ReceIved
QUESTIONS Value #1 #2 #3
1 This posItIon reqUIres 20 92/3 8 7
knowledge of: (1) envIronmental
legIslatIOn, (2) the envIronmental
approvals processes, (3) technIcal
knowledge WIth respect to pollutIOn
control and eqUIpment, mdustnal and
munIcIpal processes, and vanous
~'pes of mdustrIal eqUIpment. Please
tell us, how your skills and
knowledge meet each of these skills
reqUIrement?
2 A representatIve of a major 20 7Y2 8 7
CI~ such as HamIlton, calls you and
asks you what the envIronmental
approvals and processes are reqUIred
for developmg a new landfill sIte to
serve hls/her communI~ Please
outlIne your response to the clIent
clearh mdlcatmg the Act and
approval or process reqUIred under
that Act.
3 What, if an, are the EBR 10 4 5 4
publIc partIcIpatIOn reqUIrements for
the followmg:
a) new baghouse
b) new pamt spra, booth
c) new dIesel generator
d) new water mams
e) new waster transfer statIOn
4 Could you describe to us 10 1 1 0
pnman secondan and tertIan
treatInent, whIch are means of
treatmg samtary sewage?
5 Please list three ~'pical sources 10 513 5Vz 5
of contammant emISSIOns mto the
atInosphere from an automobIle
manufacturmg facilI~
6 This is a scenario question. 10 9 9 9
You have receIved 15 applIcatIOns to
process from your supervIsor over
the last 3 days You Just receIved
another 5 today One of the clIents
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from the batch of 5 that you just
receIved toda, calls you. He says
that he IS m a hum and needs to
have hIS applIcatIOn revIewed and
approved wlthm the week. He
mdlcates that thIS proposal will result
m 30 new Jobs m Ontano and IS
worth over $5 millIon. Because of
the net benefit to Ontano he IS
refusmg to pa, the fees reqUIred for
the applIcatIOn. If hIS applIcatIOn IS
not approved m a week, he says that
he will be callIng the PremIer How
would you respond?
7 You have received an 10 8 8 7
applIcatIOn under sectIOn 52 OWRA
for constructIOn of watennams
Please mdlcate the ~'pe of
mfonnatIOn reqUIred for the
applIcatIOn to be consIdered
complete
8 Oral Communications Skills 20 10 10 10
TOTALS 110 55 55 49
A VG SCORE 53
The first questIOn allocated 6 2/3 marks for each of the three knowledge areas
addressed. The gnevor achIeved the follOWIng scores
Knowled~e Area INTERVIEWER
1 2 3
1 envIronmental legIslatIon 3 3 1
2. envIronmental approvals process 623 5 6
3 technIcal knowledge 0 0 0
The gnevor testIfied wIth the aid of notes she made Immediately follOWIng
the IntervIew She Said that the recorded answers dId not reflect what she Said at
the IntervIew regardIng her knowledge of the legIslatIOn nor of all the steps In the
applIcatIOn process
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However, It was clear from her eVIdence, as well as the recorded answers,
that she dId not demonstrate any "technIcal knowledge wIth respect to pollutIOn
control and eqUIpment, Industnal and mUnIcIpal processes and vanous types of
Industnal eqUIpment." AccordIngly, she properly dId not receIve any pOInts under
that headIng Had she receIved perfect scores on the other two headIngs she
would have receIved an addItIonal 3 2/3, 5 1/3 and 6 1/3, pOInts from the 18\ :td, and
3rd IntervIewers respectIvely
As to questIOn two, the gnevor testIfied that the only Item mISSIng from the
recorded answers was that she had mentIOned the need for publIc partIcIpatIOn In
such a project. The pOInts to be awarded for thIS questIOn were allocated as
follows
Answer
a) EnvIronmental Assessment Act (2.5 marks)
2.5 marks
- submIssIOn of the Terms of Reference
- IndIvIdual EnvIronmental Assessment
b) EnvIronmental ProtectIOn Act (2.5 marks)
2.5 marks
- CertIficate of Approval for a Waste DIsposal - landfill SIte
- CertIficate of Approval (AIr) (1.e for landfill gas flare)
c) Ontano Water Resources Act (2.5 marks)
2.5 marks
- CertIficate of Approval for mdustrIal sewage (1.e for a leachate
collectIOn system)
d) EnvIronmental Bill of RIghts (2.5 marks)
2.5 marks
- EBR reqUIrements of CertIficates of approval (PublIc partIcIpatIOn)
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The gnevor made no mentIOn of the Ontario Water Resources Act at all,
nor dId she refer to the Environmental Bill of Rights AccordIngly, her best result
would be to allow her full marks for the Environmental Assessment Act and the
Environmental Protection Act and 2 5 marks for refernng to the need for publIc
partIcIpatIOn. That result would Increase her score by 5, 4 lIz and 5 lIz marks
respectIvely
The expected answer to questIOn 3 IS as follows
Answer
a) a mllllmum of 30 days IS reqUIred on the EBR Reglsm for publIc comment
(2 marks)
b) a mllllmum of 30 days IS reqUIred on the EBR Reglsm for publIc comment
(2 marks)
c) none (2 marks)
d) none (2 marks)
e) a mllllmum of 30 days on the EBR Reglsm plus some other ~'pe of publIc
partIcIpatIOn such as advlslllg the nelghbours, mformatIOn seSSIOns, newspaper
ads, etc (2 marks)
The gnevor got full marks on a) and b) She testIfied that she dId not know the
answer to c) or d) Her answer to e) Included that there was a reqUIrement for a
publIc heanng, whIch IS wrong. She was scored as follows
Answers In terviewer
1 2 3
a 2 2 2
b 2 2 2
c 0 0 0
d 0 0 0
e 0 1 0
Her best Improvement IS an addItIonal mark from each of IntervIewers # 1 and #3
for part e) of the questIOn.
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As to QuestIOn 4, the umon objected to the vtlIght gIven to thIS questIOn.
There was no allegatIOn from the gnevor that the answers were Incorrectly
recorded nor that the mark gIven was Inappropnate I am unable to conclude that
on balance thIS questIOn IS dIsproportIOnately weIghted. The treatrrent of samtary
waste IS clearly WIthIn the mandate of the Mimstry and Intncately bound up In the
CertIficate of Approval process ThIS questIOn IS testIng one of the underlYIng,
fundamental knowledge reqUIrements of the posItIOn. It IS worth only 9% of the
overall total AccordIngly the gnevor could not Increase her score on thIS questIOn
even on a best case scenano
As to questIOn 5, no ObjectIOn was raised to the marks awarded or the
recorded answers
As to questIOn 6, the gnevor receIved nIne rut of ten marks from each
IntervIewer A key response looked for was that the supervIsor was to be Involved
In such a problem only In extreme CIrcumstances The gnevor's answer Included
the Involvement of her supervIsor as a matter of course I would rot Interfere wIth
that mark. However, on a best case basIs, the gnevor would have receIved an
extra mark from each IntervIewer
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As to questIOn 7, the gnevor took no exceptIOn to the marks awarded nor
the answers recorded. She said the marks were fairly awarded.
QuestIOn 8, calls for an assessment of the gnevor's oral commumcatIOn
skIlls Each IntervIewer awarded ten out of a possIble twenty marks The
IntervIewer's each grounded theIr marks and comments as to how they amved at
theIr marks In the Ir prevIOUS observatIOns relatIng to the other questIOns On ItS
face there can be no reason to Interfere at thIS stage wIth the marks gIven.
In the result, the gnevor, on a best case scenano, mIght have Increased her
marks by 10 2/3, 11 and 14 % for totals of 65 2/3, 66 and 61 % from IntervIewers 1,
2, and 3 respectIvely On a best case scenano, her average score could not have
exceeded 65 The threshold for success was 70 marks AccordIngly, the gnevor
faIled to meet the threshold reqUIrement and IS not qualIfied for the posItIOn.
The complaInt that the employer has faIled to abIde by the terms of the
settlement IS dIsmIssed.
Dated at Toronto, thIS 21st day of March, 2001
Damel A. Hams, VIce Chair
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