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HomeMy WebLinkAboutLoughead 10-10-07 IN THE MATTER OF AN ARBITRATION BETWEEN: Community Living Meaford and OPSEU (Job Competition Grievances of Loughead) Before: William Kaplan Sole Arbitrator Appearances For the Employer: Errol Treslan Kirby Robinson Treslan Conlan Barristers & Solicitors For the Union: Christopher Bryden Ryder Wright Blair & Holmes Barristers & Solicitors This case proceeded to a hearing in Owen Sound on May 29,2009, June 15 & 18 and September 27, 2010. Introduction This case concerns a number of job posting grievances for a Counsellor 2 position filed by Ms. Rachel Loughead (hereafter "the grievor"). Potentially affected third parties were informed of the proceedings and invited to attend. None choose to do so. In brief, the union submits that the employer violated the collective agreement by preferring and choosing candidates who either possessed a Developmental Services Worker diploma (hereafter "D.S.W. diploma"), were working towards one and/or who held an equivalent diploma instead of the grievor who was the most senior applicant. There was also one successful candidate with a university degree. In the union's view, the grievor had the skill, ability, experience and qualifications for the posted positions and was, at the very least, relatively equal to all of the successful applicants. In these circumstances, given her greater seniority, not to mention the provisions of the collective agreement, set out below, she should have been awarded all of the positions in issue. The union also argued that the grievor had been discriminated against on the basis that her husband was the OPSEU Staff Representative who serviced the bargaining unit at the employer, Community Living Meaford (hereafter "CLM"). The grievor appears to have been the first person who received an offer of employment conditional upon obtaining the D.S.W. diploma in the future, and this, the union asserted, was not only discriminatory, but also demonstrated bad faith and was, therefore, improper. For its part, the employer took the position that there was no collective agreement breach in that management was entitled to establish the qualifications and required credentials 2 for the position in question. The D.S.W. diploma was clearly a reasonable credential- it related directly to the job - and the grievor did not have it, or any equivalent qualifications. The fact that she had many relief hours of seniority did not mean the she was relatively equal to the employees selected. The case proceeded to a hearing over a number of days in Owen Sound at which time evidence and argument were presented. Without impacting the evidentiary burden, but in order to proceed most efficiently, the employer agreed to call its evidence [lISt. The Collective Agreement It is useful to set out the relevant provisions ofthe collective agreement: ARTICLE 5 - MANAGEMENT RIGHTS 5.01 The Union recognizes and acknowledges that all rights and prerogatives of management are retained by the Employer and its management. Without limiting the generality of the foregoing, the Employer's exclusive rights, power, and authority shall include, but shall not be confined to the right to: (d) determine relevant qualifications of employees..... ARTICLE 14 - VACANCIES, PROMOTIONS AND TRANSFERS 14.02 (a) In filling a vacancy, the Employer shall give primary consideration to the skill, ability, experience and qualifications of the candidates. Where these factors are relatively equal, seniority shall be the deciding factor. In lieu of academic credentials for promotions and transfer, it is understood that on-the-job experience with this employer or an employer in a like agency in the community shall be taken into consideration. The Employer's Evidence The grievor was hired as a Counsellor 4/Relief Staff in May 2005. Prior to being hired, the grievor had attempted on a number of occasions to secure employment with CLM. She was unsuccessful until her husband, Mr. Ted Loughead, the OPSEU Staff 3 Representative, raised the matter with CLM's then Executive Director. The grievor was hired. At that time, the Grievor was advised in writing, and in person, that "a D.S.W. diploma or equivalent, is the prerequisite for positions at Community Living Meaford. You have agreed to begin working on this requirement upon your acceptance of this job offer." Indeed, the grievor signed a document in which she promised to upgrade her education to "D.S.W. or equivalent." On at least one subsequent occasion (memorialized October 9, 2007 and, as in May 2005, copied to the union) the grievor reconfrrmed her promise to upgrade her academic qualifications. Since May 2005, the grievor has not taken a single course toward a D.S.W. diploma or any equivalent program. She has, however, over the years, received a number of short-tenn/relief assignments and accumulated considerable hours. In management's view, the D.S.W. diploma was an important and highly relevant credential. Barb Carriere, Georgian College's Manager of Continuing Education, Apprenticeship & Workforce Development, testified generally about the D.S.W. diploma program. Ms. Carriere received her D.S.W. diploma in 1976, has extensive work experience in the field, not to mention years instructing in the D.S.W. program, one, she noted, that is offered on a part-time basis at the Owen Sound campus. According to Ms. Carriere, there are more similarities than differences between D.S.W. programs offered at the various community colleges. The D.S.W. program at Georgian College is a two year program. The purpose of the program is to provide students with the knowledge and skills required to support people with developmental disabilities to 4 . participate in all aspects of life in their communities. There is class work and placements. The mandatory courses include Active Living, Augmentative Communication, Person- Centered Planning, Drug Classification and Body Systems, Facilitative Techniques, Supportive Counselling, Dual Diagnosis, Behavioural Supports, Pharmacology, Health Skills, Childhood Development, Technology in Human Services, Adolescent and Adult Development and Professional Practice. There are optional courses as well. Instructional time varies in length for each course between 36 and 56 hours. Individuals with previous work and educational experience can apply for and receive credit toward their diploma. Ms. Carriere acknowledged the importance of practical experience, but pointed out that formal education in the different subject areas was also important, both for substance and to develop critical thinking and other skills. An academically trained D.S.W. had, by defInition, more depth and breadth of knowledge to bring to bear when working with clients. This point was illustrated by Ms. Carriere canvassing a number of the required and optional courses and describing their pedagogical and practical purposes. Academic instruction, reflected in the D.S.W. diploma, Ms. Carriere testified, was critical to providing a high level of client support. The value of a D.S.W. education was recently reflected, as a matter of public policy, by the Ontario government creating a D.S.W. apprenticeship program. The current Executive Director, Wally Selihar, echoed many ofthese observations. He testified that the decision to require the D.S.W. diploma was made before he arrived and furthered the core goals of CLM. At no time, he insisted, has the grievor been 5 discriminated against because her husband was the OPSEU Staff Officer. Other employees without the D.S.W. diploma have been treated in the exact same way. Since 2008, external hires joining CLM must have D.S.W. diploma or a related one, or be working toward their D.S.W. diploma. The grievor, he observed, had not taken a single course. Ms. Joan McConnell, a former teacher who is one credit short of her D.S.W. diploma, testified. She has worked at CLM since 1983 and described at some length why CLM seeks to integrate its clients into the community. It is all about pursuing the goals of independent living, and supporting people to be "the best that they can be" by helping them be as independent and active as possible. The Counsellor 2 job - and a copy of the job description was introduced into evidence - had this as its objective. And in Ms. McConnell's view, the D.S.W. diploma was indispensable to its proper performance as the knowledge gained through the program of study could and was regularly deployed in providing support and programming to clients. A number of examples were provided illustrating this point. Ms. McConnell was involved in the grievor's initial hiring, the Executive Director at the time instructing her to interview the grievor even though Ms. McConnell indicated that her review of the grievor's resume indicated no qualifications for the position. The Director apparently told her to interview the grievor anyway "because I say so." 6 Over the years, Ms. McConnell has observed the grievor at work. She is nice and conscientious. She does not, however, perform at the same level as an employee with a D.S.W. diploma. The job of a Counsellor 2 is to help the clients live in the community in a manner as consistent as possible with their chronological age. The grievor does not have the knowledge or those skills to fully accomplish this objective. When Ms. McConnell would periodically ask the grievor about her progress in obtaining her D.S.W. diploma the grievor would reply that she is an "autonomous leamer." Ms. McConnell was involved in a number of the job competitions. She insisted that the fact that the grievor was married to the OPSEU Staff Officer had nothing to do with the employer's decision in every case to offer the position to an applicant with the D.S.W. (or equivalent) diploma, and/or someone who was obtaining it or, in one case, extensive related experience and a university degree. The only courses the grievor has taken are the compulsory in-house training provided to all employees. D.S.W. course costs for employees are paid by CLM. Michelle Solaro (previously Johnson) also testified. She was involved in many of the contested job competitions and has years of managerial experience in this sector. She is currently employed by Bruce County CAS. According to Ms. Solaro, the grievor did not even come close to establishing relative equality in any of the job competitions with which she was involved. The D.S.W. diploma was a long standing job requirement, and the employer considered this qualification extremely important. To be sure, the one successful applicant without a D.S.W. diploma had a university degree in religious studies, but that individual also had considerable crisis counseling experience, stress 7 management and some sign language, which management deemed important to further the goals of assisting clients in achieving independent living. In Ms. Solaro's view, the grievor's work experience and qualifications were not relatively equal or commensurate to any of the successful applicants, and she explained why. Ms. Solaro reviewed the qualifications of the successful candidates and compared those to grievor. While the grievor would show up for her shifts and was likeable, she did not.do any of the paperwork nor any other written planning for any of the clients to whom she was assigned. She was, Ms. Solaro testified, a relief employee comparable to a substitute teacher with no long-term involvement, active participation or responsibility for client planning. Theresa Funston testified about the work ofa D.S.W. at CLM. She is a member of the bargaining unit and began work in April 1993 after graduating with her D.S.W. diploma. She described how she incorporated her academic training in her daily work with clients. She testified that employees, like the grievor, who lacked the academic training, would focus on client personal care and housework while the professionally trained D.S.W.'s attempt to actively assist individuals in independent living. Ms. Funston recounted observing the grievor interacting with a client by playing paddy cake, or "who stole the cookie from the cookie jar." Juvenile activities of this kind, and several others were also identified, undermine independent living according to Ms. Funston. The people we support, Ms. Funston testified, are adults and should not be treated like children. They are entitled to respect and dignity. 8 When cross-examined by the union, Ms. Funston agreed that placements and on-the-job training was critical, but insisted that academic training in the form of the D.S.W. diploma program was an essential part of doing the job at a high level and in a meaningful manner. She also testified that while having fun with the clients was important, and to be encouraged, that did not mean engaging in infantile activities with adults. Age appropriateness was what mattered. The Union's Evidence OPSEU Staff Officer Ted Loughead testified flISt. He has been married to the grievor for thirty years and has been responsible for the OPSEU bargaining unit at CLM since 2001. In 2005, he suggested to the then Executive Director that the grievor be interviewed after she had applied two or three times but had been unable to secure an interview. Mr. Loughead was aware from advertisements in the community that CLM was looking for employees, and believed that his wife could do a good job. He had, he testified, no idea that when she obtained the position that she had agreed to pursue a D.S.W. diploma. He never saw the appointment letter and his wife never mentioned this condition to him. He flISt leamed of this in 2008, when she was unsuccessful in one of the job competitions and brought the paperwork to his attention. Mr. Loughead agreed that there was a relationship between the D.S.W. diploma and the Counsellor 2 position. He also thought it was useful for employees to take courses and to upgrade their skills. What he objected to, however, was the employer preferring junior employees with this credential when a senior employee, his wife, was relatively equal to 9 the successful applicants and had repeatedly demonstrated complete suitability for all of the posted positions. In his view, not awarding the grievor these jobs constituted a violation of the collective agreement. Deb Farrar testified on behalf the union. She is a Counsellor 2 at CLM and has worked there for 17 years. She has an E.C.E. diploma from Georgian College and has also taken four or five D.S.W. courses. She described her work at CLM and her various activities directed at integrating clients into the life of the local community. Ms. Farrar has observed the grievor at work. She testified that the clients like the grievor who brings a fresh and fun approach to different activities. According to Ms. Farrar, she does notuse much of what she leamed in her D.S.W. courses in her daily work. Another employee, Jan Alcock, testified to the same effect. She obtained her D.S.W. diploma in 2008. For the last few months, Ms. Alcock has been working at CLM as a Counsellor 3 full-time at nights (and had previously worked there in the summers and on relief). In her opinion, the D.S.W. diploma was not very helpful. She has, however, leamed a lot of practical skills from the grievor and believes that a person with a lot of experience in the field is just as qualified as someone with the diploma, which in any event, she described at one point as "not beneficial" to the job. Ms. Alcock complained about not having the time to do certain activities with the clients, such as detailed person centered planning, but agreed that there were no client demands preventing this as she worked, and was paid to be awake, during the night shift when her clients were asleep. 10 The grievor also testified. As noted above, she has logged many hours at CLM. Notwithstanding the written documentation, referred to above, the grievor had no recollection being advised, or agreeing, in the hiring process, to pursue the D.S.W. diploma. To the extent that the grievor recalled anything about this, it was her impression that if courses were required they would be provided at work. She testified that she is an autonomous leamer who pursues knowledge by reading books, go ogling and studying articles on wikipedia. The grievor reviewed her resume which included providing subsidized child care in her home in Peel Region, and daycare and foodservices work at the Kingston Family YMCA, and testified that, in her view, these assignments, which she described, were work at "a like agency." Moreover, this background, together with all of the on-the-job experience she had accumulated at CLM, put her in the position where she was at least relatively equal, in all of the job competitions at issue, to the selected candidates. In every case, she was the senior employee and should have, by operation of the collective agreement, been awarded the position. In fact, she was only interviewed for one of the positions, and no questions were ever asked about her extensive background and qualifications as outlined on her resume and described in her evidence. At CLM, the grievor testified she does everything that all the other Counsellor 2's do. It is true, the grievor observed, that she does try to inject fun into the day, but to suggest, as Ms. Funston did, that she does in an inappropriate manner, was not correct. The grievor engages in all sorts of activities with the clients, not simply the ones singled out by the employer. Over the years, the grievor has leamed a lot about the clients and how to respond to their diverse and challenging needs. Examples were provided and the point 11 made that some games, involving hand-eye coordination, were useful and highly enjoyed by certain clients. Given her considerable experience, the grievor is often asked for advice by other counselors, including those with the D.S.W. diploma. The grievor was asked, during cross-examination, about what autonomous learning she had done in the various mandatory course areas for the D.S.W. diploma. She testified that courses could be helpful, but so too was self-learning, experience, and consultations with colleagues. The grievor insisted that she was qualified for the Counsellor 2 position because she performed it and had been doing so for years. There was nothing leamed in the D.S.W. program, for example, that could tell the grievor how to respond to the needs of a particular individual. She knew how to appropriately respond because she had worked with that person and knew what was required. The grievor had worked in every shift in every house. She was, she believed, completely qualified for the Counsellor 2 position. Moreover, she had demonstrated that in terms of skill, ability, experience and qualifications that she was, at the very least, relatively equal to all of the successful applicants. Employer Argument In the employer counsel's submission, the collective agreement clearly set out in the Management Rights provision the employer's entitlement to set qualifications for positions. It had exercised this power for entirely appropriate and justifiable purposes: namely, improving the quality of care offered to clients at CLM. The evidence also established that CLM management had decided well before the grievor was hired to 12 require, or to prefer, some one with a D.s.W. diploma, or someone committed to obtaining it and actively involved in doing so. This was regularly brought to the union's attention and no objections were raised prior to this set of grievances. The grievor was employed on that basis. There was nothing wrong, employer counsel continued, and everything right, about CLM requiring an upgrading of staff qualifications and looking to engage applicants with the D.S.W. diploma. Ms. Carriere's evidence established the significance and relevance of the credential, which was an important qualification, to the work of CLM. In not one ofthe job competitions, the employer submitted, did the grievor even come close to establishing equivalency with any of the successful candidates, or even to most of the other applicants, where there were multiple applicants, who were, like the grievor, unsuccessful in obtaining the positions in question. Referring to a number of authorities, the employer took the position that the test was not whether the grievor could, at some basic level, perform the position. The test was whether the grievor's skill, ability, experience and qualifications were relatively equal to those of the other applicants. If relative equality was established, then the grievor would be successful. In management's view, however, the evidence amply established that relative equality had not been established. Being able to perform the job at a minimal level did not establish relative equality. The employer argued that the evidence of its witnesses should be preferred to those of the union who barely acknowledged the benefits of the D.S.W. 13 diploma. Finally, with respect to the assertion that the grievor had been discriminated against, or that the employer had been acting in bad faith, the employer argued that the evidence was actually to the exact opposite effect. It was only because her husband was an OPSEU Staff Officer with responsibility for the CLM bargaining unit that she was even interviewed in the flIst place. The employer asked that all of the grievances be dismissed. Union Argument In the union's submission, the employer never made a reasonable, objective and fair- minded assessment of the grievor's skill, ability, experience and qualifications. Instead of appropriately exercising its management rights by carefully considering these factors, it fettered its discretion by imposing the blanket requirement of possession, or pursuit, of a D.S.W. diploma or its equivalent as a precondition to successfully winning one of the posted positions. This was contrary to the collective agreement and the established authorities. The union did not argue that the D.S.W. diploma was irrelevant or completely unrelated to the contested positions. The union also did not take issue with the employer's right to set qualifications. What was important was that the evidence convincingly demonstrated that the grievor was relatively equal in all four areas: skill, ability, experience and qualifications. Instead of carefully ex~mlnlng the grievor's resume, interviewing her, and seeking references - all of which would have established this relative equality - the employer had, instead, arbitrarily ruled out her candidacy simply because she did not 14 possess a particular credential with the result of abrogating her seniority rights. The employer was required by the collective agreement to assess on the job experience where a candidate did not have a particular credential. It had failed to do so thereby violating the collective agreement. The truth was that many Counsellor 2' s at CLM did not have this credential or had only taken some courses in pursuit ofit. The D.S.W. diploma may have some benefits, but it could not, the union argued, be a precondition to advancement particularly in the case of someone like the grievor who had been doing the very job for years and was, by far, the most senior applicant. It was noteworthy, union counsel continued, that the employer never claimed the grievor could not do the job. Instead, management based its entire case on the fact that applicants with the credential were to be preferred. That proved, the union suggested, that the diploma was not a legitimate requirement. The matter to be determined was not who had the better credentials, but whether the grievor was relatively equal in which case her seniority must be taken into account and the positions awarded to her. The union argued that it had established relatively equality. To demonstrate this point, union counsel reviewed the grievor's qualifications and then compared them with the qualifications of the successful candidates. In the union's opinion, this comparison left no doubt but that the grievor was, at the very least, relatively equal. She had worked in like agencies in the past, and had the tremendous knowledge that she had obtained on-the-job. It was quite clear, looking at the collective agreement, that the parties had deliberately distinguished "credentials" from 15 "qualifications." The grievor had the qualifications, the skill, ability and experience. She was as qualified as each and everyone one of the successful applicants. Therefore, her seniority should have been, the union argued, allowed to trump. Moreover, in the union's submission, by operation oflaw, it was impermissible for CLM to impose a condition upon the grievor at the time of hiring, and doing so, in any event, served to demonstrate that it was discriminating against her on the basis that her husband was the OPSEU Staff Officer. This demonstrated that management was not acting in good faith. Accordingly, and for all of these reasons, the union asked that the grievances be allowed. Decision Having carefully considered the evidence, arguments and authorities advanced by both parties, I am of the view that there has been no collective agreement violation and that all of the grievances must be dismissed. The grievor is clearly a compassionate, dedicated, and hard-working employee performing an important job for the benefit of CLM and its clients. But that is not the test in this case. The issue is whether there has been a collective agreement breach. As noted above, a number of job competitions are in issue. There is no doubt, when the grievor's qualifications are reviewed, and compared to the successful applicant in each and every case, that there has been no collective agreement violation. For example, in one of the competitions (November 28,2007), the successful applicant (Currie) had relevant work experience, a two-year diploma in recreation and leisure services, a person-centered 16 planning course, a certificate in the prevention of and management of aggressive behaviour and completion of a number of other courses (similar to ones taken by the grievor). No one objectively comparing the qualifications of these two applicants could fairly conclude that the grievor and the successful applicant possessed qualifications that were relatively equal. By the time of another competition (April 18, 2008), Ms. Currie was working on obtaining her D.S.W. diploma and she was the successful applicant in that competition too. After reviewing all of the contested competitions, the same general conclusion is reached: the grievor has not demonstrated relative equality. Even in the case of the individual with the BA in Religious Studies, that person, Ms. Picket, had worked as a Home Support Worker, provided specialized foster care, had extensive counselling training, some fluency in sign language, taken courses in abuse, AIDS awareness and critical incident stress management. When she applied, Ms. Picket was taking a course in Person Centered Planning at Georgian College as well as a Team Building Seminar. The grievor, in contrast, has provided childcare in her home, worked in food services at the YMCA, and provided further childcare at that institution, run a catering business, was employed in an office and worked at CLM. In fact, I cannot conclude that the grievor's work at the Kingston YMCA was even work of "a like agency." The only courses the grievor had at CLM were in-house and required of all employees. She can do the job. That is obvious. But that is not the question to be answered here which, to repeat, is whether she had established relative equality with the other applicants. The answer to that question is that she has not. 17 The employer is clearly entitled to establish qualifications for the position in question. In doing so, the relationship between the D.S.W. and Counsellor 2 position was not only established in the evidence, but is self-evident. The more education, training and skills an employee can bring to this important job, the better he or she can perform it to the benefit of the clients and the community. The fact that the grievor had no discipline on file, good evaluations, worked at all of the sites, and had logged many hours, does not automatically mean that she is relatively equal to other applicants. To be fair, the grievor should not have been told, as she once was, that applicants with D.S.W. diplomas received "priority," for posted positions. The employer is required, in each case, to actually assess the qualifications of all of the applicants and that includes assessing their work experience, at CLM, and like agencies, where they lack a particular credential and contacting their references. The application of a blanket policy of preference for a desired credential and the automatic exclusion of candidates without it is inappropriate. The employer has an obligation to turn its mind to the work experience of a candidate with the employer and elsewhere at like agencies. However, after carefully reviewing all of the evidence, the failure to do so in one or more of the job competitions in this case does not change the result as relative equality has not been established in any area and would not have been established had management done so. Finally, in my view, there was nothing discriminatory in the way that the grievor was treated. She was not discriminated against because her husband was the OPSEU Staff Officer. She obtained her position as a result of the former executive director agreeing to 18 a request from that Staff Officer to provide her with an interview. The fact that the records indicate that the grievor was the flIst employee hired with the condition to obtain the D.S.W. diploma in the future does not demonstrate any discrimination against her. Around that time, CLM made a decision to upgrade staff qualifications. Other employees hired around the same time as the grievor, and afterwards, who did not have the D.S.W. diploma also confrrmed their obligation to obtain one. The union argued that this was an individual contract not countenanced by the collective agreement and was contrary to the established authorities and was another reason for allowing all of the grievances. Assuming for the sake of argument that this is correct, it is also true the union was notified of all of these appointments, and the conditions underlying them, and for years did not raise a single objection, at least not until the current case. In any event, and most importantly, the evidence does not demonstrate relative equality. All of the grievances are dismissed. DATED at Toronto this 7th day of October 2010. "William Kaplan" William Kaplan, Sole Arbitrator 19