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HomeMy WebLinkAbout1988-1357.Ansara.92-04-15 DecisionONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE SETTLEMENT BOARD COMMISSION DE REGLEMENT DES GRIEFS (Ry." fl U- ? 19'32 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TELEPHONE: (416) 326-1388 180, RUE OUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 FACSIMILE/TELECOPIE : (416) 326-1396 1357/88, 1426/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Union Grievance/AnsarA) Grievor - and - The Crown in Right of Ontario . (Liquor Licence Board of Ontario/ Liquor Control Board of Ontario) Employer BEFORE: FOR THE GRIEVOR FOR THE EMPLOYER HEARING July 19, December May 22, 2 July 10, March 21, July 3, 4 December 1989 5,7, 1989 3, 1990 11, 12, 1990 22, 1991 , 1991 6,1991 R. Verity Vice-Chairperson J. McManus Member D. Daugharty Member C. Flood Counsel Koskie & Minsky Barristers & Solicitors G. Luborsky Counsel Hicks, Morley, Hamilton, Stewart, Stone Barristers & Solicitors 2 DECISION In this matter, a union policy grievance dated January 11, 1989 and an individual grievance filed by George Ansara dated January 23, 1989 arise from the posting of a position in October 1988 for "A" Store Assistant Manager at Store #58 at Timmins (Competition'#NR1/88). The vacancy was created in May 1988 when Lucien Cloutier, a fully bilingual employee, was transferred from Assistant Manager at Store #58 to Manager of Store #592, a "C" Store in Timmins. The dispute focuses on the "reasonableness" or the "need" for the stated qualification in the job posting in question - "intermediate oral French Language skills required". Mr. Ansara, the senior applicant, was denied the position for the sole reason that, in the opinion of management, he lacked the requisite French Language skill. The grievor's seniority date is December 18, 1972. Marc Bussiere, a fully bilingual employee, was awarded the Assistant Manager's position effective February 27, 1989. Mr. Bussiere was in attendance at the hearing and was accorded full rights to participate. His seniority date is December 29, 1975. In essence, both grievances allege a violation of the provisions of Article 21.5(a) of the collective agreement. However, at the hearing, the Union amended its policy grievance by 3 adding a violation of the "Letter of Agreement, French Language Services". The Union introduced evidence of negotiating history allegedly to resolve an ambiguity in the Letter of Agreement and to ground an estoppel. It is important to note that the Union challenges neither the validity of the French Language Service Act, 1986 nor the L.C.B.O.'s Implementation Plan for the provision of French Language services. The following provisions of the collective agreement are relevant: ARTICLE 21 Assignments and Job Postings 21.5 (a) Where employees are being considered for promotion, seniority will be the determining factor provided the employee is qualified to perform the work. ***LETTER OF AGREEMENT*** FRENCH LANGUAGE SERVICES In expanding its French language services the Boards agree to the following: 1.To make reasonable effort to minimize adverse effects on employees which may be caused by the designation of bilingual positions. 2.To keep the Union apprised of the Boards' implementation plans. 3.To provide the Union with an opportunity to review any policy being proposed for French language training applicable to bargaining unit employees. Employees 4 directed by the Boards to undertake French language training shall do so at the Boards' expense and without loss of pay or credits. 4.To provide the Union with a list of all worksites at which the Boards are required to provide service in French in accordance with government or Boards' policies. Information will be provided as to the method by which the services will be provided at each worksite. 5.The designation of bilingual positions, the standards of fluency required, the training courses developed for bargaining unit employees and other related concerns shall be referred for discussion to the committee specified under Article 1.8 of the Collective Agreement. The parties agree that Article 21.5(a) is a threshold ability clause whereby the senior employee, if qualified, is entitled to the job. It was agreed that Mr. Ansara was qualified for the position except for the requisite level of French Language proficiency. Fluency in the French Language is not a requirement at the intermediate level of French proficiency. In fact, the only levels considered "functional" are "advanced" and "superior". At the intermediate level, the government's expectation is relatively low and is expressed as follows: "At this level one possesses some ability to work in French. One shows some spontaneity in language production, but the fluency is very uneven resulting in halting speech. One is able to participate in simple conversations on a one-to-one basis. The vocabulary is limited to that used in simple, non- technical, daily conversational usage. One can make and answer requests of information or directions, give simple 5 instructions and discuss simple needs. When addressing this person the speaker may have to slow down and repeat if he/she wishes to be understood." Some background information may be helpful to understand the sensitive nature of this dispute. These grievances arise in the context of the French Language Services Act, 1986 which was assented to on November 18, 1986. The Act established the right to communicate in French and receive services in French from Ontario Government offices in designated areas of the Province. The District of Cochrane, which includes the City of Timmins, is one of the designated areas. Store #58 is the only "A" Store in District #3 and the only designated store of the three liquor stores within the Timmins area. Under s.2 of the French Language Services Act, 1986, the Government of Ontario has a mandate to "ensure that services are provided in French in accordance with this Act". Under s.12 of the Act, the Minister responsible for Francophone Affairs has the statutory obligation "for the administration of this Act". There is, however, provision in the Act for a three year phasing in period with full services to be in place effective November 18, 1989. Jane Holmes was L.C.B.O. acting French Language Services Co- ordinator between January 1987 and August 1988. She testified that the L.C.B.O., under the direction of the Ministry of Consumer and 6 Commercial Relations, was cognizant of its responsibility to provide French services "as the most visible arm of the Ontario Government". Similarly, it was sensitive to the need to minimize adverse effects of the legislation on the existing employee complement. In early 1987, the L.C.B.O. conducted an employee survey, in reality an individual self-assessment, to determine the extent of existing oral and written French proficiency. According to Ms. Holmes, the result of the survey established that the L.C.B.O. would be unable to provide French services in all 251 liquor stores located in designated areas by November 18, 1989. Criteria were developed to determine which stores within the designated areas would provide "equal services in French and English". Eventually, 114 designated stores were identified including Store #58 at Timmins. The results of the self-assessment survey were used by the L.C.B.O. to determine the number of "bilingual" staff available and required at each of the designated stores. Apparently the number of bilingual employees required at a particular store was established on the basis of the store classification, hours of operation and scheduling considerations. At Store #58 in Timmins, it was determined that of an employee complement of 14 (eight permanent and six temporary) six permanent staff members and one temporary employee were "bilingual" and that the actual number of "bilingual" employees required was five. Those figures were included in the L.C.B.O.'s Implementation Plan of December 1987 (Exhibit 21) and remained unchanged in the Mid- 7 Term Corrections Plan dated September 12, 1988. (Exhibit 22). Ms. Holmes testified that in the spring of 1987, at the instigation of the Union, the parties met with the Office of Francophone Affairs to reinforce the Union's concerns about the legislation and in particular the potential for job loss. In December, 1987, the'L.C.B.O. submitted its French Language Services Implementation Plan to the Office of Francophone Affairs (Exhibit 21). The plan was prepared exclusively by the Employer, without Union input. The L.C.B.O. obtained approval from Francophone Affairs for "an undesignated Human Resources plan" for retail stores which would focus on the number of "bilingual" employees required in each designated store rather than the designation of a position per se. Therefore, in a designated store, each vacancy had to be carefully evaluated as to the number of "bodies" with French language skills in order to provide service during all operational hours. Ms. Holmes testified that based on the self-assessment survey, the L.C.B.O. lacked sufficient numbers of employees at the "advanced" and "superior" level of French proficiency. In these circumstances, the Office of Francophone Affairs reluctantly agreed that "a strong intermediate French language proficiency" would serve the needs of French speaking customers in liquor stores. However, Francophone Affairs made it clear that they would continue to monitor and audit the situation. The L.C.B.O. developed a French language proficiency test with the help of an outside consultant to assess the level of French 8 language skills. Employees were trained to administer the test, as for example, in the northern region, Camille Clements-Pitchkur and Don Thibodeau. With the above background information, we turn now to consider the evidence. We might say that this arbitration proceeded at great length, during 13 hearing days. To consider every piece of evidence that was raised would carry this decision beyond reasonable bounds. The grievor, George Ansara, has been Assistant Manager at Store #592, a "C" Store at Timmins, since 1981. Previously he worked for approximately eight years at Store #58 and briefly at Store #128, a "C" Store in adjacent South Porcupine. The grievor testified that he had high school French and worked as a salesman in the French language some 20 years ago. In his opinion, he had a working ability in the French language at the intermediate level. The grievor was tested in oral French proficiency on November 28, 1988 by District Manager Don Thibodeau. Apparently the test is designed to evaluate oral comprehension and oral competence in the French Language. The grievor testified that he scored 13 out of a possible 14 in oral comprehension, which he described as "the picture test". He recalled that the oral competency component was tape recorded and took the form of a conversation in French. In the grievor's words "I found the test quite reasonable" and he answered the questions "fairly well or quite well". The grievor 9 had some difficulty recalling the sequence of events in this matter which is not surprising given the passage of time. In particular, he did not recall receiving the letter of December 21, 1988 from Don Thibodeau (Exhibit 9) advising that he (the grievor) had not met the French language requirement. The grievor maintained that while he is "not fully bilingual", he can make himself understood in the French language. Ted Zajac is Assistant Manager of Store #128 at South Porcupine. He was the third applicant for the position in question. Mr. Zajac testified that he was not interviewed for the job because he was the junior applicant and did not speak French. Lucien Cloutier, a bilingual employee, is Manager of Store #592 in Timmins. He testified that when he worked as Assistant Manager at Store #58 (until May 1988), there were five bilingual full-time employees; namely, Manager Paul Pilon, the two Assistant Managers Guy Piche and himself, Marc Bussiere, then Clerk 4 and Art Chartier, then Clerk 3. He later testified that Bob Fritz, a Clerk 3 whose first language was English, had passed "a bilingual test" so that technically there were six bilingual employees at Store #58. Mr. Cloutier recalled that he had observed the grievor perform in French "a few times" and that "he (the grievor) tries his best". However, Mr. Cloutier refused a request by District Manager Don Thibodeau to write a letter as to the grievor's ability to speak French. In cross-examination, Mr. Cloutier justified his 10 refusal on the basis that he had no involvement in French Language proficiency testing. John Miles was President of the Union. He gave detailed evidence of collective negotiations between the parties that lead to the introduction of the Letter of Agreement, French Language Services. The Letter of Agreement was agreed to on February 14, 1987. Mr. Miles testified that the Union had a number of concerns as to the effect of the French Language Services Act, 1986 including lay-offs, the impact of the Act on current employees, the designation of positions requiring French language proficiency, the restriction of promotional opportunities for unilingual employees and the possible "parachuting" into positions by new bilingual employees. The Union's initial position was tabled on October 2, 1986 which requested the inclusion of a new article in the collective agreement entitled "Bilingual Bonus" (Exhibit 12) as follows: 5) New Article - Bilingual Bonus Create a new article which contain the following provisions: a)a substantial monetary bonus for Board employees occupying bilingual positions; b)bilingual training courses during working hours for interested unilingual Board employees, c)provision of a list containing all worksites where bilingual positions will exist in accordance with government policy. 11 The Employer did not agree with that proposal in any respect. Mr. Miles candidly acknowledged that when the French Language Services "letter" was agreed to on February 14, 1987 the Employer had no policy or guidelines in place and was "unclear" as to the level of French language proficiency that would be acceptable to the Office of Francophone Affairs. Mr. Miles testified that during negotiations, the Employer agreed to make feasonable efforts to minimize adverse effects on the existing employee complement and, in general, adopted a stance of "trust us". Mr. Miles recalled that in February 1987 the Employer had no implementation plan then in effect and was unsure as to the demands of the Office of Francophone Affairs. Camille Clements-Pitchkur is Co-ordinator of Human Resource Service for the L.C.B.O.'s Northern Region. She testified that Store #58 at Timmins is the only "A" Store of 22 liquor stores in District #3. Store #58 is a designated store with a two shift operation (day shift and afternoon shift) with operational hours from 9:30 a.m. to 10:00 p.m. Monday to Friday and from 9:30 a.m. to 6:00 p.m. on Saturday. Mrs. Clements-Pitchkur testified that the L.C.B.O. had an obligation to ensure that during operational hours Store #58, as a designated store, must provide "equitable" customer services in both English and French. In her words "from a staffing standpoint, we had to have at least one staff member on hand to respond to the needs of a client who might request services in French". She stated that although Store #58 had a "1-800 toll free 12 number" to provide telephone service in French, "it was an alternative but not a substitute" for employee service. Mrs. Clements-Pitchkur viewed the vacancy at Store #58 from the standpoint of being a designated store, the existing full-time staff complement with French language skills (four employees) and the scheduling demands. After considering a number of options, she concluded that equitable services could not be provided without a French language designation contained in the posting. She maintained that Store #58 employee Bob Fritz was not sufficiently proficient to meet the standards of either the Office of Francophone Affairs or the L.C.B.O. Although Mr. Fritz had not applied for the vacancy in question, he had been previously tested for French language skills and had failed to achieve a strong intermediate level grade. She described the reason for preparation of at least two and possibly three postings in this competition. However, all three applicants were considered for the position, in her words because of the "ambiguity" of the posting notices. Mrs. Clements-Pitchkur described in some detail the French language testing procedure developed by the L.C.B.O. Briefly stated, under the oral competency section, candidates are tested for language delivery, ability to make oneself understood, vocabulary, grammar and pronunciation. Without knowledge of the mark assigned the grievor by Mr. Thibodeau, Mrs. Clements-Pitchkur evaluated the grievor's tape. In assigning a mark of 9 out of 20, 13 she concluded that the grievor had failed the test. She stated that a mark of 10 was the minimum requirement for the intermediate level and that a mark of 12-14 would indicate strong intermediate French language skills. Mrs. Clements-Pitchkur forwarded the tape to Jacques Bastien, then L.C.B.O. Co-ordinator for French Language Services. Apparently, Mr. Bastien assigned a mark of 8 out of 20. Subsequently, Mrs. Clements-Pitchkur evaluated a tape of Marc Bussiere's oral competency test and was satisfied that he surpassed the minimum requirement. Don Thibodeau, as District Manager, was part of the decision to post the vacancy with the French language qualification. He testified that with a full-time staff complement of four who had French language skills there was no alternative but to post with the language qualification based on employee rights under the collective agreement, the hours of operation and the normal scheduling pattern. He had previously evaluated the French language skills of the four employees. In cross-examination, Mr. Thibodeau acknowledged that in assessing the need for the French language qualification only permanent full-time employees were considered. In other words, casual employees and permanent part- time employees were not considered in scheduling concerns. In assessing the grievor's oral competency, Mr. Thibodeau stated that the grievor's delivery 'twas his one strong area" but that he had difficulty with vocabulary and grammar and would frequently revert to English. Mr. Thibodeau assigned the grievor a mark of 9 out of 14 20 and concluded that he lacked the requisite French language skills. He then forwarded the tape to Camille Clements-Pitchkur for an independent assessment. Subsequently he evaluated Marc Bussiere using the same test and concluded that Mr. Bussiere had the requisite French language skills. In reply evidence, Union Vice-President Gord Gerrard, currently a "B" Store Assistant Manager in Mississauga, introduced a number of schedules to illustrate that it was possible, to schedule one employee on each shift with the requisite French language skills (Exhibit 38). Essentially, there are two central issues in this case; namely, (1) whether the designation of French language skills in the posting was "reasonably related" or "necessary" to the position in question; and (2) whether the testing was fair and reasonable. We make no attempt to repeat the able submissions of Counsel except in summary form. The Union contended that neither grievance involved opposition to bilingualism or to the legitimate extension of French Language services. Mr. Flood argued that in light of Article 21.5(a) of the collective agreement, the appropriate standard of review was the higher standard of necessity. In the alternative, the French language qualification was not reasonably related to the job. In the further alternative, the grievor possessed the requisite language skill or that the process was 15 flawed. Mr. Flood argued that negotiating history was admissible to resolve an ambiguity in the words "reasonable effort" in the phrase "reasonable effort to minimize adverse effect on employees which may be caused by the designation of bilingual positions" as contained in paragraph 1 of the Letter of Agreement. He also contended that John Miles' evidence was relevant to ground an estoppel on the basis that a number of broad statements were made by management and that the L.C.B.O. would make reasonable effort in effect to redress the wrongs of the past. In support, the Union cited the following authorities: OPSEU (Giasson) and Ministry of Labour 2250/87 (Devlin) (Interim Decision); OPSEU (L. MacKenzie) and Ministry of Transportation and Communications 1243/87 (Ratushny) (Interim Decision); OPSEU (Daly) and Ministry of Tourism and Recreation 1440/88 (Samuels); OPSEU (St. Pierre) and Ministry of Transportation 1236/89 (Verity); Canadian Food and Allied Workers Union, Local 175 v. Great Atlantic and Pacific Company of Canada Limited et al 76 CLLC 332 (Ont. Div. Ct.); OPSEU (L. MacKenzie) and Ministry of Transportation and Communications 1243/87 (Ratushny) (Final Decision); OPSEU (G. Giasson) and Ministry of Labour 2250/87 (Wafters) (Final Decision); and Re Eastern Provincial Airways (1963) Ltd. and Canadian Airline Employees' Association (1979), 24 L.A.C. (2d) 71 (Christie). The Employer urged the panel to view these grievances in the context of the French Language Services Act, 1986 and in light of the operational requirements of the only designated store in 16 Timmins, a city with a substantial Francophone population. Mr. Luborsky acknowledged G.S.B. jurisprudence that a panel has jurisdiction to determine whether a job qualification is reasonably related to the job. However, he argued that under s.18(1) of the Crown Employees Collective Bargaining Act that once it is established that the L.C.B.O. was implementing government policy in good faith, a panel has no further jurisdiction. In the alternative, Mr. Luborsky argued that the standard of review deemed appropriate was the standard of reasonableness and not necessity. He argued that the extrinsic evidence adduced was not probative and that there was no ambiguity in the Letter of Agreement and no basis for the application of an estoppel. In sum, the Employer urged a finding that the French language qualification is totally appropriate in these circumstances and that the grievor was unsuccessful based on his ability to meet the language qualification. The following authorities were cited: OPSEU (Carroll Lapraik) and Ministry of the Attorney General 657/84 (Draper); OPSEU (Beck) and Ministry of Government Services 196/89 (Watters); OPSEU (Moses) and Ministry of Consumer and Commercial Relations 715/89 (Barrett); and Re Ontario Hydro and Canadian Union of Public Employees, Local 1000 (1987), 30 L.A.C. (3d) 331 (Brent). In our view, there is no ambiguity in the Letter of Agreement, French Language Services. If we are wrong in that regard, we must say that the extrinsic evidence offers no assistance in the resolution of the matter and accordingly is of no probative value. 17 The Letter of Agreement came into effect on February 14, 1987 in the absence of any L.C.B.O. policy, guideline or Implementation Plan. During negotiations the Union addressed legitimate concerns on behalf of its membership on the effect of the new. Act. However, the L.C.B.O. made it clear to the Union that the Implementation Plan was in the formulation stage and that the Plan proposed would have to be negotiated with the Office of Francophone Affairs. Similarly, on the evidence adduced, there is no basis to ground an estoppel in the absence of any firm representation on the part of the L.C.B.O. At best, during negotiations, the Union was made aware of the approach that the L.C.B.O. was likely to follow, and of its intention to advance the merits of an undesignated human resources plan. The job posting in question must be viewed in the reality of the French Language Services Act, 1986, the fact that Store #58 is the only designated store in the Timmins area, the fact that the District of Cochrane is a designated area under the Act and the fact that the City of Timmins has a Francophone population of approximately 45%. Under the management rights provision of s.18(1) of the Crown Employees Collective Bargaining Act, the Employer has the right to establish qualifications required to perform a particular job. It is now well established that the appropriate standard of review is to ensure that a particular qualification is reasonably related to 18 the job in question. See for example, MacKenzie and Ministry of Transportation and Communications, supra, (Ratushny) and (Giasson) and Ministry of Labour, supra, (Watters). We are unable to agree with the Union's principal argument that the standard of review in these particular circumstances should be one of necessity. In the case before us, there is no allegation of bad faith against the Employer. At the time of the posting in October of 1988 there were only four full-time employees at Store #58 who had the requisite French language skills (Pilon, Bussiere and Chartier). The provision of French Language services during all store hours is an operational requirement of a designated store. While it may be appropriate to consider casual and permanent part- time employees for any such operational requirement, it would appear reasonable, we think, that the L.C.B.O. in assessing the situation at the time of a vacancy would rely upon the number of full-time staff to achieve the appropriate balance under the French Language Services Act. The evidence of John Gerrard satisfies us that the equitable scheduling of employees to provide French language services during all hours of operation is a complex task. Briefly stated, Mr. Gerrard was unable to provide any schedule that would comply with both the French Language service requirement and the provisions of the collective agreement. In our view, the French Language Services Act, 1986 provides an important context in assessing the 19 reasonableness of the French language qualification. Further, the timing of the phasing in procedure during the second year (1988 as opposed to 1989) is quite understandable given the significant French speaking component in the City of Timmins, the existing staff complement with French language skills, and the projected date of implementation for Store #58 (November 18, 1988). Accordingly, we must find that the French language qualification in this posting is reasonably related to the position in question. It is a truism that no competition when wider intense scrutiny can escape criticism. For example, it is difficult to understand the rationale for the Employer Assistant Manager Marc Bussiere language skills when the Employer seeking the opinion of acting regarding the need for French knew or ought to have known that Mr. Bussiere would be an applicant for the job. Similarly, there were three separate postings prepared for this particular competition through a combination of errors which we were led to believe, arose at head office. However, all applications for Competition #NR1-88 were duly considered. If indeed the Employer was testing for a strong intermediate level of French proficiency, that fact appears to have escaped the attention of examiner Don Thibodeau. Similarly, there was no reference to strong intermediate level in the job posting. On the sensitive issue of French language qualifications, the Employer would be well advised to clarify its expectations in future job 20 postings. However in the final analysis, it is an irrelevant consideration given the evidence that the grievor failed to achieve a mark at the minimum level of intermediate French language proficiency. Inevitably, there will be some degree of subjectivity in marks awarded for oral competency. However, the grievor's taped conversational test was independently assessed by three experienced evaluators. No evaluator found the grievor qualified even at the minimum level of oral intermediate French language proficiency. On the evidence adduced, we find that the grievor was fairly assessed in accordance with provincial criteria for French language evaluation. Because of the impact of the French Language Services Act, 1986, in these particular circumstances, we cannot find that the Employer violated the provisions of Article 21.5(a) of the Collective Agreement. Similarly, we find no violation of the Letter of Agreement, French Language Services. By all accounts, George Ansara is a respected employee who has a degree of French Language skill particularly in the area of comprehension. He was, of course, the senior applicant for the position. Unfortunately, the evidence does not support his claim that he possesses the ability to speak French at the intermediate proficiency level. For all of the above reasons, Mr. Ansara's 21 grievance and the Union policy grievance must be dismissed. DATED at Brantford, Ontario, this 15th day of April, 1992. R. L. VERITY, Q.C. - 4ICE-CHAIRPERSON "I Dissent" (dissent to follow) J. McMANUS - MEMBER de D. DAUGHARTY