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HomeMy WebLinkAbout2008-2144.Policy.09-11-25 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-2144 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Policy) Association - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFOREVice-Chair Nimal Dissanayake FOR THE UNION Michael Mitchell Sack Goldblatt Mitchell LLP Barristers and Solicitors FOR THE EMPLOYER Brian Loewen Ministry of Government Services Counsel HEARING May 19, 20, 2009, October 6, 7, 20, 2009. - 2 - Decision [1]The essence of this policy dispute dated June 23, 2008 is that the employer is in contravention of article 27.8 of the collective agreement by requiring ministry specific knowledge in the process of matching surplussed employees for purposes of direct assignment to available vacant positions. [2] The relevant provisions of article 27.8 are as follows: Direct Assignment into Permanent Vacancies 27.8 27.8.1 The following processes and rules shall apply to: a) all employees at the time they are declared surplus; b) all employees who remain eligible or available for assignment into subsequent vacancies for the remainder of their surplus notice after the processes and options set out in Articles 27.6.2 and 27.6.3 have been followed; and c) all employees on recall. 27.8.2 The Employer shall undertake the matching and assignment of employees under Article 27.8 on a timely basis. a) The search for a vacancy that is undertaken by the Employer shall be within the parameters set out in Articles 27.8.3 and such broader parameters as the employee has identified and shall include those positions registered pursuant to Article 27.4. b) Where multiple matches may be possible, the vacancies shall be assessed in accordance with the employee?s preferences as set out in the employee portfolio or as amended thereafter. c) Where matches may be possible with more than on employee, the vacancy shall be assessed in respect of the employees in order of seniority. 27.8.3 Employees shall be directly assigned to a permanent AMAPCEO unit position that is vacant in the relevant time period, provided that: a) the vacant position is in a classification for which the maximum salary is n more than 5% above or 15% below the maximum salary of the classification of the position, as determined in accordance with Article 27.13, from which the employee is declared surplus (or, where the employee who is declared surplus is in the SMG classification, the maximum salary for the vacant position is no more than 30% below the job rate of the SMG employee?s classification); and b) the vacant position is within a forty (40) kilometres radius from the surplus employee?s existing permanent work location or the last permanent work location of an employee on recall; and c) the employee meets the entry level qualifications for the position; and - 3 - d) there is no other AMAPCEO unit employee who has a greater length of continuous service and who is eligible for assignment to the vacancy pursuant to this Article. [3] It is clear that under article 27.8.3 a surplussed employee is entitled to direct assignment to a vacancy available at the time, provided he/she meets the conditions set out in sub-sections (a) (b) (c) and (d). Central to the present dispute is sub-section(c), under which an employee must meet ?the entry level qualifications? for the vacant position, as a condition of entitlement to direct assignment. [4] Very briefly described, the direct assignment process unfolds as follows. It is the employer, as part of its management rights, that decides whether a vacancy exists that needs to be filled. For purposes of direct assignment of a surplussed employee two things happen. The employee, with assistance from the Human Resources Dept., sets out his/her skills and abilities in an employee portfolio. The Ministry where the vacancy exists prepares a Job Information Package (JIP?), which includes the qualifications required to perform the duties of the vacant position, and the selection criteria. [5] It is common ground that under article 27.8.2, the employer has the responsibility for the matching and direct assignment of surplussed employees. The employer is required to carry out that responsibility in accord with article 27.8.3. In other words, if the employee satisfies the four conditions in article 27.8.3, he/she must be directly assigned to the vacant position. This of course requires the matching of the employee?s qualifications as set out in the employee portfolio with the qualifications and selection criteria for the vacant position as set out in the JIP prepared by the Ministry where the vacancy exists. The employer carries out this matching process through its Employment Programs & Services Unit (?EP&S?). [6] The gist of the grievance is as follows. EP&S relies on Ministry managers to prepare the JIP, including the qualifications and selection criteria for the vacant position. Those managers from time to time set out ministry specific knowledge, as a required qualification. EP&S uses these JIP documents in determining whether an employee meets the ?entry level qualifications? for purposes of direct assignment. As a result, employees are denied direct assignments on the - 4 - grounds that they do not possess ministry specific knowledge. AMAPCEO?s position is that ministry specific knowledge is inconsistent with the ?entry level? standard in article 27.8.3(c). By applying qualifications which are inconsistent with the ?entry level? standard in the matching process, therefore, the employer is in contravention of the collective agreement. AMAPCEO submits that it does not matter who set the unauthorized ministry specific qualifications. The employer is obliged to comply with article 27.8.3. If it denies direct assignments by applying qualifications inconsistent with those specified in the collective agreement, it is not in compliance, regardless of where those improper qualifications originated. [7] AMAPCEO led evidence which it says establishes that EP&S has in fact denied direct assignments to surplussed employees, because they did not possess ministry specific knowledge. EP&S was of the view that ministry specific knowledge was inappropriate, but nevertheless proceeded to apply them. AMAPCEO?s evidence was of three types. First, documentary evidence was tendered wherein, AMAPCEO submits, the employer not only recognizes that ministry specific knowledge requirements are by their very nature inconsistent with the collective agreement standard of ?entry level qualifications?, but also admits that employees have been denied direct assignments on the basis that they lacked ministry specific knowledge. Second, AMAPCEO relied on examples of particular employees being denied direct assignments on that basis. Third, evidence was tendered of statements made by employer representatives, which it submits, amounts to admissions that the collective agreement was not being complied with. I shall review that evidence in turn. [8] Counsel for AMAPCEO referred me to ?the Guide to the Employee Portfolio? dated December 2003. This, it was pointed out, was a document jointly prepared by the employer and AMAPCEO. Counsel reviewed various parts of the document which contain instructions to employees as to what information is to be included in an Employee Portfolio. He pointed out that in those instructions, the employee is directed to include skills of a general nature, including relevant experience gained through participation in unpaid activities. The directives are not confined to ministry specific skills or knowledge. My attention was particularly directed to the definition of ?skills? at p. 7: What are Skills? Skills are the basic part of your knowledge, ability and aptitude you use to perform tasks everyday. You communicate with people, make decisions, and perform tasks at - 5 - work. You may be involved in volunteer work that includes fund raising, organizing activities, etc. Therefore, you may posses skills you don?t think are important! When completing the Portfolio Skills Assessment, think about your job-specific transferable skills skills and any you may have developed through other activities. you can use in different types of work. Transferable skills are skills that For example, you may help organize a community function. You should think about all your experiences when filling out this Portfolio Skills Assessment. When determining your skills, think about your various work experiences and other types of activities where you may have developed each skill. Refer to the skills and assessment definition before you decide whether or not it applies to you. If you have questions about how to identify your skills or levels, ask your Human Resources contact or career counsellor for advice. Counsel submitted that since the Employee Portfolio is prepared specifically to facilitate the matching of employee skills with the qualifications of a vacancy for purposes of direct assignment, transferable skills would not be sought, if there was no intention to use them in the matching process. [9] Counsel also referred to a number of provisions in a employer document titled ?A Manager?s Guide to Staffing in the Ontario Public Service?, which recognizes that all selection processes must be based on the merit principle, and that to ensure that the merit principle is applied the selection processes must be barrier free. ?Selection criteria? is defined as bona fide staffing requirements expressed in terms of qualifications ? the knowledge, skills, abilities and competencies ?required to enter the position?. In determining staffing requirements needed upon entering the job, managers are instructed to choose the qualifications ?essential at the entry level and measurable predictors of future work performance?. Counsel pointed out the following instructions under the heading ?Quick tips for developing effective selection criteria?. Do not ask for knowledge of internal policies, procedures and operations if you intend to use an area-of-search that extends beyond your organization. Do not ask for knowledge that can be picked up relatively quickly on the job from a supervisor, co-worker or written material (e.g. legislation, policies, procedures). Avoid asking for knowledge if what you really need is ability (e.g., in some jobs knowledge of particular acts or regulations is not as important as the ability to interpret and apply legislation). - 6 - Avoid overly specific criteria, as they may not allow candidates with transferable skills to compete (e.g., working knowledge of WordPerfect 8.0 will screen out applicants with similar software knowledge of Word 7.0). [10] The Manager?s guide defines ?Direct Assignment? at p. 109 as ?workforce adjustment mechanism to place surplus employees in permanent or temporary vacancies based on skill, salary and geographic criteria? Counsel noted that the focus of the definition is on ?skill?. [11] Counsel submitted that if the employer understood its obligation to have barrier-free processes for hiring individuals into the OPS, it must have accepted at least similar obligations with respect to AMAPCEO employees, who have a specific right to direct assignment. The manager?s guide demonstrates, submits counsel, that the employer had undertaken a general philosophy of not tolerating barriers. [12] AMAPCEO counsel referred to another employer document titled ?Managers Guide to Writing Barrier-Free Employment Ads in the OPS?, prepared in March 2007. He pointed out that it makes the admission at p.2 that ?Currently, many OPS employment advertisements include unintentional barriers to employment that can impact applicants? accessibility to positions?. Particular reliance was placed on the description at p.2 of ?unintentional employment barriers as ?specific restrictions that unnecessarily limit broad access and are only ?assets? for the position. ?Assets? or ?nice-to-haves? should not be used as they are discretionary and not essential for effective work performance.? Four examples of these unacceptable unintentional employment barriers are set out. The very first is ?ministry specific policy/procedural knowledge?. In developing selection criteria, managers are instructed to ask ?what do you need an employee to know on day one to do this job?? Among the criteria managers are instructed to avoid are knowledge of ?Ministry?s purchasing procedures?, ?OPS decision-making process?, and ?finance branch core business and related Ministry programs?. While ?knowledge? of relevant legislation and guidelines is to be avoided, the use of ?demonstrated ability to interpret legislation and guidelines? is recommended. Counsel pointed out that the ?questions and answers? section of this document states that the use of the guide is mandatory, and further that its advice against employment barriers applies to redeployment as well. Counsel noted the recognition in question no. 8 that ?All provisions within the collective agreements, legislation - 7 - and OPS policies have been adhered to in the creation of this guide?. Particular attention was drawn to question and answer No: 10: Q:I really need someone that has specific ministry knowledge as I don?t have the time or resources to train new hires. Can I keep this barrier in my employment ad? A: No. You should always remove obvious barriers from your ads. Try to reword the requirement so that it is not ministry specific. Think about what can be learned on the job (e.g. learning a policy) versus what is important to know on day one of the job (e.g. ability to interpret legislation so that they can understand your policy). Think of recruitment as a long-term objective that is focused on hiring the best quality candidate as opposed to fulfilling short term needs. Therefore, it is worth the investment to remove barriers up front in order to attract the right quality candidates. [13] Finally, AMAPCEO relied on a memorandum dated September 28, 2007 from Ms. Karen Pashleigh (Assistant Deputy Minister, HR Service Delivery Division), to all Human Resources Branch Directors. The relevant parts read: SUBJECT : Renewed Commitment to Employment Programs and Services Our objective in the HR Service Delivery Division is to serve the OPS as one employer and ensure consistent and fair HR practices for all our clients. The redeployment process is one in which HR branches play an important role in supporting Employment Programs and Services (EP&S)?s administration of collective agreement and health reassignment employee entitlements, and in working with their clients to help them understand the rules and processes. Our community goal is to facilitate the placement of employees in opportunities in the OPS and to work with our clients to ensure that employees who are assigned to vacancies in their ministries are supported and integrated in the workplace in a positive and supportive manner. In recent months, EP&S has been experiencing increased and sustained activity in the areas of redeployment and health reassignment. EP&S has managed to continue to undertake matching activities with a frequency that is maintaining a high standard of service in the processing of clearance requests. A number of issues have emerged that require immediate attention. This memo outlines the issues and identifies the actions that are being put in place, effective immediately. . . . Job Information Packages (JIPS) The JIP is what is used to consider potential pre-surplus, surplus, health reassignment and displacement opportunities for employees. EP&S has been experiencing a decrease in quality and completeness of JIPs. It is critical that these documents be prepared with care, that they are complete and that their components are consistent. - 8 - This is essential to ensuring clearance requirements are processed quickly and accurately. Effective immediately: . JIPs for classified positions must include a complete and approved job description. JIPs that lack a job spec are proving to be an impediment to diligent review of direct assignment, displacement and health reassignments. . Ministries will be expected to submit job ads and selection criteria that are consistent with the Writing Barrier-free Job Ads Guide that was issued by the Enterprise Recruitment Centre on April 24, 2007. A copy of the guide is included as an attachment to this memo. . Where no job description accompanies a JIP for a classified position and/or where EP &S determines that there are barriers in the selection criteria and/or the job qualifications as reflected in the job advertisement, it will be returned to the ministry for correction. [14] AMAPCEO submitted that despite the many policy documents espousing a barrier free deployment process, despite a recognition that requiring ministry specific knowledge is an unacceptable employment barrier, and despite the ADM?s explicit directions, AMAPCEO bargaining unit employees continue to be denied direct assignments as a result of barriers in the selection criteria used. To demonstrate this, evidence was tendered about individual cases where employees were not matched to available vacancies because they lacked ministry specific knowledge. Three examples (without identifying the employee) were relied on, where the reason the respective employees were found not to meet the ?entry level qualifications? are set out as follows: (1) No demonstrated knowledge of the ministry?s core business, programs and organizational structures to respond to enquires, co-coordinate correspondence and research. No demonstrated knowledge of, or proficiency with CCM or IFIS. (2) No demonstrated experience with First Nations, Inuit and Métis communities and organizations, or knowledge of aboriginal issues, programs or services. (3) No demonstrated knowledge of and experience with financial management and accounting policies, practices and processes to coordinate and administer the Branch Budget. The JIPs used with respect to the above were also filed in evidence. With respect to (1) above, in the selection criteria the highest allotment to any one criterion is 25 percent. That is for ?knowledge of Ministry core businesses, programs and organizational structures to respond to enquires, co-coordinate correspondence and research and compile information for meetings, - 9 - briefings and other events.?Another 15 percent is assigned for ?knowledge of relevant administrative, financial, procedures, guidelines and directives, and office management practices including correspondence/document tracking systems, file storage and retention and purchasing to effectively manage and coordinate administrative activities for the ADM?s office.? In (2) above, the selection criteria allots as much as 50 percent for ?experience with First Nations, Inuit and Métis communities and organizations, and knowledge of Aboriginal issues. Knowledge of Aboriginal issues, programs and services, relevant federal lingages, and Aboriginal and non- Aboriginal stakeholder relationship.? The JIP for (3) above allots 40 percent for ?knowledge of Government/Ministry financial management and reporting and accounting policies, practices and processes ?? etc, and a further 20 percent for ?knowledge of Ministry and government administrative policies, directives and guidelines in the areas of human resources ? etc.? [15] AMAPCEO offered evidence relating to surplussed employee LM, which indicates that LM identified a vacant position of Information Analyst at the Fire Marshall?s Office in Midhurst, among others, for direct assignment. That position was classified at 14 AGA, and thus represented a demotion for LM, who had been surplussed from a 19 AGA position. She was prepared to take significantly less pay in order to be close to her family in Barrie. AMAPCEO made inquiry as to why LM had been denied the direct assignment to that vacancy. EP&S responded that LM ?was deemed not qualified as her Employee Portfolio does not demonstrate knowledge of the policies and procedures of the Office of the Fire Marshall?s programs. She also does not demonstrate knowledge of information management principles, best practices, concepts and standards to provide consultation, research, analysis, and technical services in the management of information that is collected and maintained in the Office of the Fire Marshall?s Records Management System.? [16] The case of employee GG was also relied upon by AMAPCEO. GG was surplussed from her position as Senior Facilities Coordinator (19APA) at the Ministry of Municipal Affairs and Housing. EP&S concluded that she met the entry level qualifications for a vacant position of Facilities Planning Coordinator at the Ministry of the Attorney General, also classified at (19APA). However, the management at the Ministry of the Attorney General disagreed with the match identified by EP&S. EP&S sought an explanation. The Ministry explained that the match - 10 - was based on the outdated job description in the JIP, which did not accurately reflect the current duties of the position, and gave examples of some skills and abilities which are not reflected in the JIP. EP&S wrote to the Ministry stating as follows: I have reviewed the ministry?s assessment rationale and cannot accept it. The Ministry has indicated that the employee meets the selection criteria but that the selection criteria is based on an outdated job description which does not reflect the requirements of the position. As I see it the ministry has only two options (in no particular order): Option 1 ? If the package is incorrect then they should cancel the competition and start again. As you know, this will require a letter from the DM or designee (generally CAO/ADM) with a sound business reason, since they are cancelling after referral of a surplus employee. From our perspective there is a risk to cancelling given that AMAPCEO is already making enquiries about this employee and this assignment. Anything other than a direct assignment is going to require an explanation to the bargaining agent. Option 2 ? Proceed with the assignment and provide the details as requested since we deemed the employee appropriately qualified for direct assignment based on the Job Information Package that you submitted. The Ministry took option 1, and cancelled the competition. AMAPCEO submits that instead of insisting that the direct assignment be pursued as required by the collective agreement, the employer suggested ?a way out?, and the Ministry took it. [17] The third aspect of AMAPCEO?s argument is based on statements made by the employer at meetings with AMAPCEO representatives. In this regard, the evidence of AMAPCEO witnesses set out herein is uncontradicted, since the employer called no witnesses. Mr. Matthew Hill, AMAPCEO Labour Relations Specialist, testified that in July of 2007, 21 Ministry of Health employees were identified as surplus. Direct assignments were identified for 8 of them, leaving 13 employees with no direct assignments. Many of those 13 employees had over 20 years of service and were surprised that no direct assignments had been identified for them. AMAPCEO sought an explanation from EP&S as to the grounds on which these employees were found to be lacking the entry level qualifications for available vacancies. [18] This led to a meeting on September 13, 2007 between Mr. Hill and Ms. Ann McDonald, Manager of EP&S. Mr. Hill took notes at this meeting and testified in detail about the discussions that took place.Mr. Hill testified that during the discussion he asked Ms. McDonald - 11 - how ?entry level qualifications? are defined by EP&S during the matching. According to him, Ms. McDonald said, ?Entry level is whatever the manager defines it as in the selection criteria.? When Mr. Hill asked ?Then the manager establishes the entry level definition?,? Ms. McDonald responded ?yes. Via the selection criteria?. [19] Mr. Hill testified that following this meeting, AMAPCEO sought, and received additional disclosure as to the matching process carried out by EP&S. From that disclosure it became apparent that in many instances, the managers had included ministry specific knowledge in the selection criteria. If the employee did not have the ministry specific knowledge in the employee portfolio, EP&S considered the employee as not meeting the ?entry level qualifications? for the vacancy and denied direct assignment. AMAPCEO concluded that the 13 employees were not matched for direct assignment because of the improper inclusion of ministry specific knowledge in the selection criteria. [20] This issue was discussed again at a meeting on November 13, 2007 attended by Ms. Ila Watson (Director/Enterprise Recruitment) Ms. Paula Pipe (Team Lead/EP&S), Ann McDonald (Manager/EP&S), Ms. Deborah-Ann Long (Staff Relations Officer) for the Employer, and Mr. Gary Gannage, Mr. Rob Smalley, and Mr. Hill for AMAPCEO. Mr. Hill testified that the AMAPCEO representatives repeatedly asserted that EP&S was not in compliance with the collective agreement when it applies ministry specific knowledge as a selection criteria in the matching process. The response from Ms. Watson and Ms. McDonald was that the matching has to be based on the selection criteria prepared by managers and ?thats how things are?. When Mr. Gannage suggested that there are no checks and balances as to what is included in the selection criteria by managers, Ms. McDonald responded that there are checks and balances in that the managers write the selection criteria based on their need at a given point in time, and that the JIP reflects that need. She insisted that it must be left to the managers to prepare the selection criteria. Mr. Hill testified that the disagreement was not resolved at the meeting. [21] In cross-examination, employer counsel suggested that at the meeting the employer representatives stated that they expected selection criteria to reflect the entry level qualifications, and that if that was not the case the selection criteria is sent back to the Ministry. Mr. Hill did recall the employer stating that it had the ability to send it back, but was not sure they said they - 12 - do it. Nor did he recall a statement that transferable skills are taken into account whenever ministry specific knowledge is required. In re-examination, Mr. Hill stated that such a statement is not reflected in the 15 pages of notes he took at the meetings. [22] Mr. Rob Smalley (AMAPCEO Director of Dispute Resolution) testified that he agreed with Mr. Hill?s testimony about the November 2007 meeting. The focus of his testimony was about a follow-up meeting on May 15, 2008, he attended with Mr. Gannage and Mr. Hill. In addition to Ms. Watson and Ms. McDonald, the employer was represented by Mr. David Brooke (Acting Director/Manager MGS Negotiations Division) and Ms. Lori Aselstine (Acting Director, Corporate Labour Relations). Notes he took at the meeting were filed as an exhibit. [23] When asked for a summary of the meeting, Mr. Smalley stated: ?We again outlined our concerns for the benefit of Mr. Brooke and Ms. Aselstine. Then a heated discussion took place as to what the employer was or was not prepared to do. In essence, Mr. Brooke recognized that there were problems in that EP&S had no overall authority to make direct assignments or bumping matches, if a ministry or manager did not agree with the match identified by EP&S. Ila and David also recognized that although managers were to follow all directives like the barrier- free guide and the September 2007 memo from the ADM, Ms. Pashleigh, it was left to the manager of the current vacant position to determine the content of the JIP, including the selection criteria. That if EP&S identifies a barrier as per the guide, they could attempt to get the manager to change the JIP information, but if the manager refused, they had no authority to force the change to eliminate the barrier.? Mr. Smalley testified that AMAPCEO stated that it had raised this issue months earlier and could not understand why the employer would come to a meeting only to say that there was nothing it could do about it. [24] Mr. Smalley testified that the employer agreed with AMAPCEO that barriers should be removed from all JIPs and selection criteria. The Employer also agreed that from time to time barriers are included in JIPs. However, Ms. McDonald took the position that a JIP is a ministry document and therefore, EP&S has no control over its content. He also testified that Ms. Long stated that the employer had put out a guide setting out what is expected, and could not do much else. - 13 - [25] Under cross-examination, Mr. Smalley explained that at the meeting AMAPCEO was told that it was up to EP&S to decide whether or not to challenge a barrier in selection criteria. He understood that as an admission that EP&S does not challenge every time a barrier is identified. He agreed with employer counsel, that in essence the employer?s position at the meetings was that its responsibility was only to instruct and advise ministries and managers, and that AMAPCEO?s position was that that was not enough [26] Both counsel made extensive submissions over two hearing days, reviewing the documentary, and viva voce evidence, and case law supporting various principles. However, in the end, for most part, there was no disagreement between the parties on these. Therefore, I will review those principles very briefly, and then focus on the narrow area of disagreement which is critical to the determination of this grievance. [27] AMAPCEO starts with the proposition that the collective agreement is between itself and the employer, and that in the OPS there is only one employer. In article 27.8.2 the employer has explicitly undertaken the responsibility for the matching process for purposes of direct assignment. Therefore, regardless of how the employer decides to share and delegate its authority, it is not entitled to point fingers at someone else if there is non-compliance with the collective agreement. [28] Counsel for AMAPCEO also reviewed numerous provisions of the collective agreement and submitted that job security is a dominant feature. Article 27.8 dealing with direct assignment of surplus employees is a major component of that job security. He reviewed various provisions within article 27 which provides flexibility and choices, which are designed to ensure that surplussed employees are given every opportunity to obtain a direct assignment, and thereby avoid bumping or layoff, provided only that they meet the conditions in article 27.8.3. Counsel submitted that the ?entry level qualifications? requirement in article 27.8.3(c) must be interpreted with this overall philosophy of the collective agreement in mind. He suggested the definition of ?entry level qualifications? to be ?the basic skills that are barrier free, needed to do the job.? [29] Counsel further reviewed the posting provisions in the collective agreement and suggested that ?merit? is the principle recognized. He submitted that by their very nature - 14 - employment barriers are inconsistent with the merit principle. Counsel reviewed in detail the employer guides and directives, and pointed out that they clearly recognize that employment barriers are not acceptable. He specifically pointed to various references where the employer directs managers to avoid use of ministry specific knowledge as a requirement. He also relied on the documentation to show that the employer was aware that contrary to the guidance and direction provided, ministries were continuing to include ministry specific knowledge in selection criteria. [30] The crux of AMAPCEO?s position is that despite all of the foregoing evidence, the employer, through EP&S, continues to use JIPs which include barriers, i.e. ministry specific knowledge, in the matching process. He relied on the evidence indicating that individual surplussed employees have been denied matches, on the grounds that they lacked ministry specific knowledge. [31] Counsel further referred me to the uncontradicted testimony of the union witnesses that at the meetings they attended, the employer had agreed that despite its guidance and directives, individual ministries continued to include barriers in selection criteria, and had in essence taken the position that there was nothing more the employer could do. The employer had in effect told AMAPCEO that it will accept whatever the managers say are the entry level qualifications. [32] AMAPCEO counsel submitted that ?entry level? envisages nothing more than what can be expected from an individual entering the job on day one. Counsel repeated that the obligation of ?matching? is explicitly placed on the employer by article 27.8.2. The employer must comply with the ?entry level? standard each time it does a match, and each time it uses selection criteria which includes ministry specific knowledge in the matching process, it is in violation of its collective agreement obligation. Counsel submits that the evidence establishes that this is not merely a hypothetical possibility, but it has occurred regularly in actual fact. Counsel characterized it as a systemic problem. [33] By way of remedy, AMAPCEO sought a declaration that the employer contravened the collective agreement by using selection criteria which contain barriers inconsistent with the ?entry level qualifications? standard in article 28.7.3(c) and by using such selective criteria in the - 15 - matching process. A direction was sought that the employer carry out those functions in conformity with the collective agreement. [34] Counsel for the employer pointed out that, as a general matter, it is the employer?s right to decide what vacancies to fill, and what the required qualifications are for the vacant position. He agreed that, unlike in job competitions, for purposes of direct assignment, the applicable standard is ?entry level qualifications?. [35] Counsel reviewed the provisions of the Public Service Act, to substantiate the position that the employer (as represented by the Ministry of Government Services ?MGS?) has the right to delegate its management responsibility to individual ministries and its managers. When the employer avails itself of this right of delegation, it retains for itself only the responsibility for oversight, which it does by providing advice and guidance to ministries and managers. [36] Counsel submitted that the employer follows this same approach in complying with its collective agreement obligations with respect to direct assignment. Referring to the various employer guides and directives to managers, counsel submitted that the employer has made a lot of effort to convey to ministries and managers, the employer?s expectations when setting qualifications to be in compliance with the ?entry level? standard. [37] While recognizing that the employer?s documents include instructions that employment barriers should be eliminated from qualifications, counsel pointed out that there is nothing in the collective agreement about qualifications being barrier-free. Article 28 only refers to ?entry level qualifications?. According to counsel, employment barriers may be a factor in the entry level threshold, but not necessarily in every case. [38] Counsel submitted that the evidence indicates that the employer relies substantially on managers to determine the qualifications required for vacant positions. That is appropriate, because managers are in the best position to do that, since they have familiarity with the duties and functions of each position. That is also permitted by the Public Service Act as a legitimate delegation of the employer?s responsibility. - 16 - [39] Employer counsel conceded that the obligation to carry out the matching process is on the employer. The employer carries out this function through EP&S. It has an elaborate process to develop employee portfolios and JIPs. In the former, a special effort is made to ascertain the employee?s transferable skills. An employee at EP&S then does an in-depth comparison of the skills, abilities and knowledge in the employee portfolio, with the qualifications required for the vacant position set out in the JIP. In the process of this comparison to determine whether the employee meets the ?entry level? threshold, the emphasis is on transferable skills and not on exact skills. [40] Counsel pointed out that this task of applying the ?entry level? test is very difficult for an EP&S employee, because that employee has no personal familiarity with the position, and the matching is done solely based on a paper review. There is a real possibility, therefore, that the real job may be different from what appears on paper. [41] Because of this possibility, submits counsel, the employer refers all ?matches? identified by EP&S on a paper review, back to the managers for acceptance or rejection. This is done in recognition that the managers have most familiarity with the position. If the managers do not accept the ?match? identified by EP&S, it provides a rationale for rejection. They set out what qualifications required for the vacant position is not possessed by the employee. If EP&S disagrees, it will ?push back? and challenge the managers? rationale for rejection. However, if the managers refuse to change their position, EP&S concedes, recognizing that the managers know best. [42] Counsel for the employer submits that the Association?s position in effect would require EP&S, with limited knowledge of the vacant position, to force its decision over the heads of those who have most familiarity with the position. He submitted that this Board has disapproved that practice. Re Tilden, 2109/95 etc (Dissanayake). [43] Counsel agreed that under the process, the employer leaves the final decision as to whether a surplussed employee meets the entry level qualifications to its managers. He agreed that if the managers deny a direct assignment by applying a qualification which is inconsistent - 17 - with the entry level standard, there is a violation of the collective agreement, and the employer is responsible for that violation. [44] Therefore, submits counsel, the issue for the Board in every case is whether a barrier inconsistent with the entry level standard has been applied to deny a direct assignment. He submitted that, provided that the managers acted in good faith, the Board should show some deference in recognition that the managers are more familiar with the positions than the Board is. [45] Counsel stated that the AMAPCEO bargaining unit consists of highly educated quasi- professionals. Often they are experts, who others rely upon for directions and assistance. In this context, submits counsel, ?entry level? qualifications for AMAPCEO positions can be at a very high level. What is required ?on the first day? for an AMAPCEO position would be very unique to that position. He drew the analogy with what may be expected on the first day of hire from an articling law student versus a senior lawyer. From the latter a high level of skill and knowledge may be expected, while in the former expectations will be very limited. In his view, an employee taking up an AMAPCEO position is comparable to the senior lawyer. [46] Counsel reiterated that the principle that ministry specific knowledge is not an acceptable qualification for purposes of direct assignment, is not part of the collective agreement. Rather, it is only a standard set unilaterally by the employer for its managers. Given the senior level of AMAPCEO positions, it may be that in particular cases the managers are correct in taking the position that ministry specific knowledge is required even at the entry level. He pointed out that there are some 10,000 employees in the AMAPCEO bargaining unit, occupying over 6000 different positions. The entry level qualifications for each position may be different. In order for the Board to determine whether or not ministry specific knowledge is a qualification consistent with the entry level test, the specifics of each case as to the duties and responsibilities of the particular position must be scrutinized. The Board has to hear from the managers as to why they considered ministry specific knowledge to be an entry level qualification. [47] On that basis, counsel submitted that the Board ought not make a general declaration based on a policy grievance, because it is not in a position to decide whether a violation occurred in any particular case, without the evidence necessary to determine whether the particular - 18 - ministry specific knowledge is in fact required to perform the duties and responsibilities of the particular position at the entry level. In his view, that may only be decided on a case by case basis through individual grievances. [48] Counsel cited to me Re Loebel 331/82 (Verity); Re Ansari 0482/97 (Abramsky); and Re Khimji 0258/97 (Briggs). I do not find it useful to review them. None of the three were decided under the AMAPCEO collective agreement. More importantly, in those cases the Board was not called upon to consider the argument made by AMAPCEO, i.e. that ministry specific knowledge is not consistent with the ?entry level qualifications? standard. [49] AMAPCEO counsel submitted in reply that where the employer takes the position that a particular barrier in the qualifications set by managers is unacceptable, it is no defence for it to say that it did its best to correct that situation, that the managers would not agree. Given the obligation it has undertaken in the collective agreement to conduct the matching, it is not open for it to say in those circumstances that the managers were given the final say because they know best. That does not cure the violation. If the employer applies a barrier which is inconsistent with the entry level standard it is in violation regardless of who came up with the barrier. [50] Counsel submitted that the good faith of managers is irrelevant if the ministry specific knowledge is inconsistent with the entry level test. The Board cannot defer to a management decision which is in violation of the collective agreement. Counsel submitted that the Board does have the specifics of individual cases, namely, that EP&S disagreed with the requirement by managers of ministry specific knowledge, but nevertheless gave in at the end, and proceeded to apply that qualification to deny direct assignments. DECISION [51] The employer did not disagree, and I find, that regardless of the origin of a barrier which is inconsistent with the collective agreement, the employer would be in breach of the collective agreement, if it applies such barrier to deny a direct assignment. Therefore, the critical issue is whether on the basis of the evidence before me, I can conclude that the employer has done so. - 19 - [52] The employer agrees that appropriate weight must be attached to transferable skills of employees in assessing their entry level qualifications for a position. The employer has explicitly recognized in its various documents and directives the need to ascertain and consider transferable skills of surplussed employees in administering the direct assignment process. I find that, as a general matter, requirement of ministry specific knowledge by its very nature seems to run counter to the concept of transferable skills. In determining whether an employee meets the ?entry level qualifications? envisaged in article 27.8.3.(c), the employer is obligated to give appropriate consideration to transferable skills. In assessing qualifications the employer is entitled to look for present ability to function at the entry level, without additional training. However, the parties would not have expected an employee moving from one ministry to another to have knowledge specific to the latter ministry on day one. Given the philosophy evident in article 27.8 of making every effort to find jobs for persons surplussed through no fault of theirs, that is highly improbable. Assuming that ministry specific knowledge is required to function at the entry level, an employee should qualify provided he/she has adequate transferable skills and experience to learn the ministry specific knowledge within a reasonably short period of time. That is inherent in the concept of transferable skills. [53] The evidence is substantial that the employer has repeatedly and emphatically directed its managers that ministry specific knowledge is to be avoided. However, contrary to AMAPCEO?s submissions, there is no evidence before me that the employer did so because it considered ministry specific knowledge in all cases to be a contravention of the ?entry level? standard in the collective agreement. I could find nothing in the evidence, wherein the employer concedes that. The ?admissions? are to the effect that ministry specific knowledge is inappropriate and ought to be avoided. There is no indication whether the employer found it inappropriate because it considered such a requirement to be contrary to the collective agreement or its own policy or both. The only reference I could find in the evidence to the collective agreement is the employer?s statement in ?The Manager?s Guide to writing Barrier-Free Ads in the OPS? to the effect ?All provisions within the collective agreements, legislation and OPS policies have been adhered to in the creation of this guide.? I do not read that as a statement that a breach of the guide is also a breach of the employer?s collective agreements. - 20 - [54] There is also evidence, both in documentary form, and through statements by employer representatives to AMAPCEO representative, that there have been ?admissions? that despite its best efforts, surplussed employees continue to be denied direct assignments because they did not possess ministry specific knowledge. The foregoing evidence clearly establishes that the employer?s own policies and directives continue to be violated by managers from time to time, and the employer, has not, or has not been able to, stop that. In the circumstances, it is easy to understand the frustration expressed by AMAPCEO and its members. [55] However, the issue before me is not whether the employer enforced its own policies. I must be satisfied that the failure to do so, also constituted a failure to adhere to the entry level qualifications standard set out in article 28.7.3(c). The employer has itself recognized that requiring ministry specific knowledge as a qualification for purposes of direct assignment results in an unacceptable employment barrier. It has explicitly directed managers to refrain from requiring ministry specific knowledge as a qualification. I have concluded that as a general rule, requiring ministry specific knowledge appears to be inconsistent with the requirement to recognize transferable skills. The employer has conceded that it must give due consideration to transferable skills. Therefore, on the face of it, requiring ministry specific knowledge appears to be contradictory. [56] In light of all of that, it is tempting to conclude, as AMAPCEO suggests, that by ignoring its promulgated guidelines, and its own determination to the contrary, the employer is in contravention of the collective agreement by ?giving in? to the managers. However, following much thought and reflection, I have concluded that I must act with caution in deciding this issue. As I have already noted, there is overwhelming evidence that in specific instances, ministry specific knowledge has been required by managers as a qualification for direct assignment, in contravention of explicit directions from the employer. The evidence also establishes that, in some instances the employer has deferred to the managers? decisions on the basis of that they are best situated to determine qualifications for a vacancy within their ministry, even though the employer disagreed with those decisions. As a result employees have been denied direct assignments on the grounds that they did not possess ministry specific knowledge. - 21 - [57] For me to conclude in this proceeding on the basis of the foregoing evidence, that the employer had contravened article 28.7.3(c) (which, of course, is a pre-condition for the granting of the declaration sought by AMAPCEO), I must find that ministry specific knowledge can never be a legitimate entry level qualification, regardless of the nature and the duties and responsibilities of any vacant position. Despite my strong reservations about the compatibility of ministry specific knowledge with ?entry level qualifications?, I cannot conclude with confidence that ministry specific knowledge can never be part of ?entry level qualifications? for any position within the AMAPCEO bargaining unit. As an abundance of caution, I have concluded that I ought not make such a broad finding. I find merit in the submission of employer counsel that before I make such a decision, I must receive and consider evidence as to the duties and responsibilities of a particular position and determine in light of that evidence whether the particular ministry specific knowledge could reasonably be considered a qualification required to function at the entry level. The Board is not familiar with the duties and responsibilities of any of the positions involved in the individual cases relied upon by AMAPCEO. While I have evidence that in those instances the employer denied direct assignment to the surplussed employees on the grounds that they did not have the required ministry specific knowledge, I have no evidence as to the core duties and responsibilities of the positions and as to how the particular ministry specific knowledge relates to the performance of those duties at the entry level. I cannot rule out the possibility based on the evidence before me, that a particular position may have unique core duties and responsibilities that make such knowledge a requirement, even at the entry level. I must, at least, permit the employer to offer its rationale for deciding that to be the case, before making a decision. I did not have that evidence in this proceeding. Indeed, in my view, it would have been inappropriate to delve into the merits of the individual cases in this proceeding which is about a policy dispute. This is particularly, so since it came to light during the hearing that at least one of the cases is the subject of an individual grievance awaiting arbitration. [58] I agree with AMAPCEO counsel that this outcome means that each individual case would have to be litigated separately, resulting in delay and costs. Regrettably, that result is unavoidable in the circumstances. The employer must have the opportunity, if it so desires, to attempt to convince the Board that the core duties and responsibilities of particular position are - 22 - such that ministry specific knowledge forms a required qualification, even at the entry level of that position. [59] For all of the foregoing reasons, the instant policy dispute is hereby dismissed. The outstanding dispute relating to health reassignment shall continue on the days scheduled. I remain seized for that purpose. th Dated at Toronto this 25 day of November 2009. Nimal Dissanayake, Vice-Chair