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HomeMy WebLinkAbout2008-2908.Nucci.11-12-22 Decision Crown Employees rieva nce Settlement oard 1Z8 l. (416) 326-1388 x (416) 326-1396 t des griefs es employés de la t Z8 l. : (416) 326-1388 léc. : (416) 326-1396 UNION#2008-0580-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ETWEEN G B Suite 600 180 Dundas St. West Toronto, Ontario M5G Te Commission de règlemen d Couronne Bureau 600 180, rue Dundas Oues Toronto (Ontario) M5G 1 Té Té Fa GSB#2008-2908 B Ontario Public Sployees Union Union (Ministry of Health and Long-Term Care) Employer ervice Em (Nucci) - and - The Crown in Right of Ontario BEFORE Michael Lynk Vice-Chair FOR THE UNION ice Employees Union FOR THE EMPLOYER Laura Johnson Ontario Public Serv Grievance Officer Services ractice Group HEARING Susan Munn Ministry of Government Labour P Counsel September 12 and November 1, 2011. - 2 - Decision [1] The parties have agreed that this decision is without prejudice and without precedential value, as per the mediation/arbitration provisions of Article 22.16 of the Collective Agreement. [2] The issue of dispute involves the question of whether the terms of the September 2009 Memorandum of Settlement between the parties which settled a 2008 grievance filed on behalf of Ms. Nucci (#2008-2908/#2008-0580-0003) has been complied with by the Employer. Ms. Nucci and the Union have alleged that the Employer breached the terms of the Memorandum by failing to award her the vacant position of Group Leader in the Ministry of Transportation in the autumn of 2009. The Employer maintains that Ms. Nucci did not have the requisite qualifications for the position and, therefore, its decision to pass her over for the position was justified and not in breach of the Memorandum. Evidence [3] Ms. Nucci has been employed in a full-time capacity in the Ontario Public Service (OPS) since January 2002. She has always been represented by OPSEU. Beginning in December 2003, Ms. Nucci was employed as a Disclosure Officer with the Health Board Secretariat, under the Ministry of Health and Long-Term Care. [4] Sometime in 2008, she was notified by the OPS that her position was being eliminated and that she would be surplussed. As a surplussed employee, she was entitled to certain redeployment provisions, as per Article 20 of the governing Collective Agreement. [5] Ms. Nucci elected to trigger her redeployment rights under Article 20. On 1 December 2008, she filed her grievance, alleging that the Employer had breached various provisions in the Collective Agreement with respect to her search for another position in the OPS. - 3 - [6] thin the Ministry of Health and Long-Term Care. Ms. Nucci accepted this assignment, and began working at the Board in April or May 2009. She has continued to this ll a without precedent and without prejudice basis and without admission of liability on the part of any party...” It was crystallized in a Memorandum of Pa RIMS ition for which the Grievor is qualified to perform the lassifications whose maximum rate is 5% above and 15% below the maximum rate of the Grievor’s position’s (c) ithin Toronto, Richmond Hill, Woodbridge or Vaughan, except the 151 Bloor location. 10. rovide such updated portfolio to the Employer’s identified contact within 1 week of the signing of the Settlement. ] Following the signing of the Memorandum, Ms. Nucci provided a 34 page employee on In the late winter or early spring of 2009, the Employer notified Ms. Nucci that she could displace a less senior employee as a Case Co-ordinator at the Consent Capacity Board, also wi work at the Board since then (although she has been on maternity leave for part of time). [7] Ms. Nucci’s December 2008 grievance remained alive after her assignment to the Consent Capacity Board, as she was not satisfied with the assignment to the Consent Capacity Board and wished to find another position in the OPS. At the scheduled hearing before the Grievance Settlement Board on 18 September 2009, the parties reached a “fu and final” settlement, “on Settlement signed that day. The relevant terms of the Memorandum of Settlement are ragraphs 1, 10 and 13: 1. The Employer agrees to conduct a search of all OPSEU vacancies currently in as of the signing of this Settlement to determine whether: (a) there is a vacant pos required duties; (b) such vacant position is within a range of c classification, provided the position is in a classification no lower than an OAG10 level; and such a vacant position is w If the Grievor chooses to update her Employee portfolio she will p 13. The parties agree that Vice Chair Lynk will remain seized with respect to any issues that arise regarding the implementation of this settlement. [8 portfolio and a curriculum vita to the Employer to assist in its search for a vacant positi as per the Memorandum. - 4 - [9] t considered her for a Group Leader position in the Regional Operations (Central Region), Road User Safety Division, in the Ministry of Transportation. At the lled on 0] The Redeployment Officer who conducted the search on behalf of the Employer the office and among the particular clientele; exhibiting tact and effectiveness in the exercise of the nd ucci was not qualified for the position, the Redeployment Officer stated that she had: “No demonstrated knowledge of legislation The Employer then conducted a job search in the autumn of 2009, and considered Ms. Nucci for a number of available positions for which she was a potential match. Among other positions, i time of the search, the Group Leader position was vacant, although it was being fi an acting basis. [1 determined that Ms. Nucci was not qualified for any of the positions that it reviewed, including the Group Leader position. [11] The Group Leader position in the Ministry of Transportation is responsible for leading approximately eight regional scheduling clerks at a ministry call-centre located at the Ministry’s regional headquarters. The primary work of these scheduling clerks is to arrange appointment times for senior driver examinations in the region. (In this context, ‘senior’ refers to Ontario drivers over the age of 80.) Among other duties, the Group Leader is responsible for exercising leadership skills with respect to the scheduling clerks; answering technical, policy and legislative questions that arise in work with the clientele, the staff, and senior Ministry officials; and demonstrating proficiency with the software systems and databases used in the office. [12] The job description for the Group Leader position stated that 30% of the job required a “demonstrated knowledge of legislation (Highway Traffic Act) related acts and regulations; ability to interpret and apply ministry policies and procedures to unique a complex cases”. In determining that Ms. N (Highway Traffic Act), related Acts and regulations”. This was the Employer’s only stated reason for denying her the position. [13] Following that determination, the Union notified the Employer that it was going to challenge its decision respecting Ms. Nucci’s qualifications for the Group Leader - 5 - essential qualifications for the position at the time of the search. Alternatively, she would have been able to acquire the capacity to become d a ployee of the Union. However, for unexplained reasons, that portfolio was not forwarded to the Employer. Consequently, the Employer had only considered Ms. ring ide oard ighway Traffic Act. She expressed resentment that the Union would not represent her at this hearing, although she tly the Regional Manager, Road User Safety Division, Regional Operations (Central East Division) at the Ministry of Transportation. y, position, as the determination was in breach of the Memorandum of Settlement. In its view, Ms. Nucci did possess the satisfactorily familiar with the Highway Traffic Act and the related legislation through a brief period of familiarization. [14] At the second day of hearings, on 1 November 2011, the Union informed the Board and the Employer that, at some point during the autumn of 2009, Ms. Nucci had provide revised and updated version of her employee portfolio respecting her qualifications to a staff em Nucci’s original employee portfolio during its redeployment search during the autumn of 2009. [15] Witness evidence was received during the 1 November hearing. Throughout the hea on this date, Ms. Silvana Cianni was present. She was selected for the vacancy in the Group Leader position at the Ministry of Transportation in the autumn of 2009, and is the present incumbent in the position. As a third party with qualified standing, she was invited to give a statement, to participate in the questioning of witnesses, and to prov any additional relevant evidence and arguments to the Board. Ms. Cianni told the B that she had been originally assigned to the position in December 2008 in an acting capacity, and was subsequently awarded the position because of her experience and qualifications, including her working knowledge of the H acknowledged that the Union had informed her prior to the hearing that it could not legally represent both her and Ms. Nucci at the hearing. [16] The only witness to give testimony at the hearing was Ms. Jabeen Khan, who was called by the Employer. Ms. Khan is presen In the autumn of 2009, she held the position of Manager of Field Services at the Ministr to whom the Group Leader reported. - 6 - [17] phone drivers in order to schedule appointments, or to answer clientele questions. When the scheduling clerks are unable to answer queries posed to them by the public, erk Group l iliar with the Highway Traffic Act and other legislation relevant to the Ministry. All five individuals who had served as Group r e he se In her direct evidence, Ms. Khan stated that the clerks who arranged the scheduling for the senior driver examinations with Ministry of Transportation officers were required to review the profile of the senior drivers in order to assess whether the driver was eligible for a renewal of his or her driving license; whether they still lived at the listed address; and whether there is any English language difficulty. They are frequently on the with senior they turn to the Group Leader for assistance, including on legislative and policy questions. [18] According to Ms. Khan, the Group Leader is the go-to person at the call-centre. The Group Leader would be expected to have communication skills; leadership abilities; effectively deal with the public stakeholders, MPPs and the Minister’s office; and work well in a high-stress environment. When asked by the Employer if any training was provided to the Group Leader upon his or her initial appointment, she replied that no training was provided. Rather, there was an expectation that the successful candidate would have already obtained the requisite knowledge as a senior driver scheduling cl or in some other comparable position in the Ministry. Upon appointment, the new Leader would be expected to “step right into the position”. In particular, the successfu candidate would already have to be fam Leaders since 2003 had initially worked as senior driver scheduling clerks or in othe related positions within the Ministry. [19] When asked whether a candidate for the Group Leader position who did not have a Ministry background and experience with the Highway Traffic Act could assume the role with an orientation, Ms. Khan stated that an orientation would not be sufficient. The Ministry has never run an orientation session for the position. The expectation would b that the Group Leader would be an expert from the very beginning. “They must know t Act, not simply be able to read it.” She said that she herself could not do the job, becau she did not have the requisite technical expertise and experience. In her estimation, it - 7 - concerning licence suspensions that would appear on a senior driver’s portfolio which the Group Leader had ing ob. An inexperienced Group Leader might provide a clerk with incorrect information, which . tion have ever been appointed to be a Group Leader. It was not impossible for an external candidate to 2] On re-examination, Ms. Khan testified that the Group Leader was required to know the ponse to a question that I asked, Ms. Khan stated that the only part of the Highway Traffic Act that was directly relevant to the Group Leader’s job was the section on driver licensing. She was not aware as to how many sections were in this particular part of the Act. would take years to acquire the requisite knowledge, because of the complexity of the licensing control area. Ms. Khan pointed to the various flag alerts to know intimately, such as suspensions for not attending an interview, or for not pay a fine, or for accumulating demerit points or for medical reasons. [20] In Ms. Khan’s opinion, if the Group Leader did not have the requisite experience to handle these kinds of queries from the scheduling clerks, she or he would not gain the respect of the staff, and thus wouldn’t be able to effectively perform the j could then lead to a driver retaining his or her licence and subsequently driving on the road when he or she might well be presenting a safety risk to the public. [21] In cross-examination, Ms. Khan acknowledged that only specific parts of the Highway Traffic Act were relevant to the work of the senior driver examination scheduling office When asked whether the Group Leader would be dealing with the same provincial legislation on a repeated basis, she said yes, but added that the call centre also received questions from the public that pertained to general features of licensing. According to Ms. Khan, no external candidates outside of the Ministry of Transporta become a Group Leader, but they would not be qualified for the position unless they already had some licensing experience and they already knew the Act. [2 Highway Traffic Act well enough to assimilate its technical features so as to be able to accurately and effectively answer the actual questions posed by the clientele. [23] In res - 8 - al: of Health and Long-Term Care? The Union maintained that the Employer had a duty, while skills and experience that she acquired through her current position. [25] The Unve Agreem d he her e ve Agreement, these provisions applied to the search. Consequently, this procedural flaw in the search process had a substantial impact on Ms. the Argument Union [24] The Union argued that there are two issues in front of me. The first issue is procedur should the Employer be required to consider Ms. Nucci’s revised and updated employee portfolio, which contained additional information about her qualifications acquired during her most recent assignment at the Consent Capacity Board at the Ministry searching for a vacant position for Ms. Nucci as per the terms of the Memorandum, to consider the ion referred to the following provision in the governing 2009-12 Collecti ent: Article 20.1.2.4 An Employee Portfolio will be deemed to include the qualifications and knowledge as identified in the employee’s current position description for the purposes of Article 20.3 (redeployment), unless otherwise modified by the employee. [26] The Union submitted that the Employer’s failure to appoint Ms. Nucci to the Group leader position breached not only the Memorandum, but also these above-mentione Collective Agreement provision. It maintained that, while the search was done via t Memorandum, the Employer was also bound by the Collective Agreement, in particular the requirement that her work at the Capacity Consent Board was to be part of employee portfolio. The effect of the Memorandum was to extend the Employer’s obligation to search for opportunities for Ms. Nucci; since the Memorandum echoed th language of the Collecti Nucci’s rights during the search, and the flaw violated both the Memorandum and Collective Agreement. - 9 - [27] e September 2009 Memorandum of Settlement when it declined to place her in the vacant Group Leader position at the Ministry of Transportation on the grounds that she lacked [28] The ve n classification; and (b) The vacant position is within a forty (40) kilometre radius of his or her headquarters; and have uld have been able to acquire this knowledge through a general orientation period, which the Employer Ministry, such that he or she would be ready to start immediately upon assignment at full gallop. Rather, in the The second issue raised by the Union is substantive: did the Employer breach th the necessary experience with the Highway Traffic Act and related legislation? Union drew my attention to the following provision in the Collective Agreement: Article 20.3.1 An employee who has received notice of lay-off in accordance with this article shall r ministry or in another be assigned to a position that becomes vacant in his or he ministry during his or her notice period provided that: (a) The vacant position is within a range of classifications whose maximum rate if 5% abo and 15% below the maximum rate of the employee’s ow (c) He or she is qualified to perform the required duties; and (d) There is no other person who is qualified to perform the required duties, who has a greater length of continuous service and who is eligible for assignment to the vacancy either pursuant to article 20.3 or Article 20.6 (Recall). [29] The Union argues that, whether or not the Employer properly considered her work at the Consent Capacity Board, Ms. Nucci was qualified to be appointed to the Group Leader position. In particular, she had the requisite abilities, skills and qualifications to understand, interpret and apply the relevant Ministry legislation. Even if she did not the necessary immediate knowledge of the Highway Traffic Act, she wo would have been required to provide. In failing to appoint her to the Group Leader position, the Employer violated Articles 1 and 3 of the Memorandum. [30] The essence of the Union’s argument on this point is that the Employer cannot expect the employee to have full knowledge of the new position in the Union’s view, the employee is qualified if he or she has the requisite transferable skills to learn the new position in a relatively short period of time. - 10 - [31] ason for egulations”. It emphasized that knowledge on der tfolio or the updated and revised one – demonstrated that she possessed extensive experience and abilities to learn and to work with the relevant airs ing (19 October, 1998) (Dissanayake) and AMAPCEO (Policy Grievance) and Ministry of Government Services, [2009] O.G.S.B.A. No. 215 (Dissanayake). Nucci is to be awarded the Group Leader position. e Agreement. The Employer pointed out that Paragraph 10 granted Ms. Nucci with the Turning to the evidence, the Union maintained that the Employer’s only stated re rejecting Ms. Nucci’s candidacy was her lack of demonstrated knowledge of legislation (Highway Traffic Act), related Acts and r the Act requires intimate familiarity only with the driver licensing section of the legislation. Accordingly, any other evidence pertaining to the duties of the Group Lea position are not relevant in this context. [32] Addressing Ms. Nucci’s qualifications, the Union submitted that her employee portfolio – whether the original por Ministry legislation. These are all transferable skills that Ms. Nucci would be able to bring to the Group Leader position, and that these skills were wrongly overlooked in the re-assignment process. [33] As case law, the Union submitted OPSEU (Ken Tilden) and Ministry of Municipal Aff and Hous [34] The Union has requested an order that Ms. Employer [35] The Employer responded first to the Union’s procedural issue, as to whether it was required to consider Ms. Nucci’s experience and qualifications developed during her current position when conducting the surplus search. [36] It submitted that the answer can be found in Paragraph 10 of the September 2009 Memorandum of Settlement, which it maintained modified and superseded the Collectiv - 11 - k of pportunity. The Employer acted within its responsibilities and obligations by relying upon the existing s. rk at the Capacity Consent Board was required to be considered in these circumstances, and even if her qualifications include the scheduling of employees and the on in the Ministry of Transportation, and the Memorandum was not therefore breached by the Em [38] The relevant provision in the Memorandum of Settlement is Paragraph 1(a): as d tions for the position because she did not have the required experience and familiarity with the n, e was ent. This legislative factor was a significant and vital feature of the job, as evidenced by the 30% opportunity to provide an updated employee portfolio to the Employer within a wee the signing of the Memorandum, and she did not take advantage of this o portfolio as per the Memorandum. Accordingly, there is no procedural flaw in the process, and the Union’s argument on this point ought to be dismissed. [37] Turning to the Union’s substantive argument, the Employer submitted that, even if M Nucci’s wo interpretation of legislation, she was not qualified for the Group Leader positi ployer. 1. The Employer agrees to conduct a search of all OPSEU vacancies currently in RIMS of the signing of this Settlement to determine whether: (a) there is a vacant position for which the Grievor is qualified to perform the require duties;... [39] Simply put, the Employer argued, Ms. Nucci did not have the requisite qualifica Highway Traffic Act. This requirement is a fundamental and appropriate pre-condition for the Group Leader position. Ministry-specific knowledge was required for the position, and this requirement falls within the rights of the Ministry to employ. [40] Specifically, the Ministry required five qualification factors for the group leader positio and Ms. Nucci had to possess all five factors in order to receive the position. Sh qualified for four of the factors, but not with respect to the legislative requirem value attached to it. As a leadership position, this legislative qualification factor is an essential pre-requisite, for which training or familiarization are not appropriate employment substitutes for possessing the actual and already-acquired skills. - 12 - [41] of e 1 (c) – now stated that “he or she is qualified to perform the required duties”. This change, the Employer submitted, had e Collective Agreem officers ides the following: the In the 2 above-m Where no EP [Employee Portfolio] is submitted, an employee’s EP for the orking days. 3] The Employer submitted that, arising from the language of the Collective Agreement and f Settlement should be dismissed. The Employer cited the evolution in the language used in the Collective Agreement’s Redeployment provisions over the past three Agreements. In the 2002-04 Collective Agreement, the language in Article 20.5.1 (c) stated that the employee seeking redeployment is to be “minimally qualified to perform the job; this is defined as ‘the ability to do the job at entry level’”. The same language is found in Article 20A.5.1 (c) the 2005-08 Collective Agreement. However, in the 2009-12 Collective Agreement, th language in the Redeployment provision – Article 20.3. raised the qualifications bar for surplussed employees seeking a new position through redeployment, and reinforces the Employer’s argument that the legislative familiarity requirement for the Group Leader position is justified. [42] The Employer also submitted the memos dated 25 July 2006 and 4 November 2009 from the Employer and the Union, where they have provided explanatory notes to “assist th parties in interpreting and applying the Employment Stability provisions of the ent”. These memos were drafted by the parties to assist managers and union with the implementation of the redeployment provisions. In the 2006 memo, the parties answered the question as to the meaning of “qualified to perform the required duties” as found in Article 20.3.1 (d). The 2006 memo prov This means the employee must have the necessary skills and knowledge to perform core components of the position at a working level and will not require training in these areas of the position. 009 memo, reflecting the current Collective Agreement, the parties repeated the entioned wording. They also added the following: purpose of matching the surplus employee to a position under Article 20.3 will be deemed to include the qualifications and knowledge as identified in the employee’s current home position description, unless otherwise modified by the employee. An employee may update their EP at any time and the changes will be implemented within five w [4 these explanatory memos, there is no requirement on the Employer to provide training in a redeployment case. Thus, the matter of dispute arising from the 2009 Memorandum o - 13 - [44] APCEO y of Agriculture, Food and Rural Affairs (13 November 1998) (Abramsky); OPSEU (Henderson) and Ministry of ipal 5] In the alternative, if the Union is successful in establishing that Ms. Nucci had the ions for the Group Leader position, then I should not displace the current Group leader from her position, but rather order a new search. ive question posed to me by the parties is whether the Employer’s determination that Ms. Nucci was not qualified for the Group Leader position in the by the consider Ms. Nucci’s revised and updated employee portfolio, which contained additional information about her qualifications thing d Ms. substantive issue in this matter goes to the meaning of “qualifications” in this context and In further support of its argument, the Employer cited the following case law: AM (Policy Grievance) and Ministry of Government Services, [2009] O.G.S.B.A. No. 215 (Dissanayake); OPSEU (Ishrat Ansari) and Ministr Citizenship (31 March 1992) (Barrett); and OPSEU (Loebel) and Ministry of Munic Affairs and Housing (15 February 1983) (Verity). [4 requisite qualificat Decision and Reasons [46] The substant Ministry of Transportation breached the terms of the September 2009 Memorandum of Settlement. [47] Before answering that question, I must first answer the procedural question raised Union: should the Employer be required to acquired during her most recent assignment at the Consent Capacity Board at the Ministry of Health and Long-Term Care? [48] In my view, the answer to the procedural question is no. This matter can be decided on the clear wording of Paragraph 10 of the Memorandum of Settlement. There is no in the evidence which establishes that the Employer breached this provision. In the alternative, I find that, even if Ms. Nucci’s updated employee portfolio had been place by the Union in a timely fashion in front of the Employer as it was conducting its redeployment search, it would not have any bearing on the Employer’s assessment of Nucci’s qualifications for the Group Leader position that is presently in dispute. The - 14 - information on this matter, as she did not acquire any experience with the Act during her ly considered the evidence, the arguments, uires the Employer to conduct a search of all OPSEU vacancies currently in RIMS as of the date of the signing of the Settlement to ot 3.1(c) – the 3.The language in Article 20.3.1(c) is less restrictive than the redeployment language in the re I pable onably short whether Ms. Nucci had a demonstrated knowledge of the Highway Traffic Act. Her updated employee portfolio would not have contained any additional, helpful or relevant work at the Capacity Consent Board that would meaningfully add to her earlier employee portfolio that had been completed and forwarded to the employer. [49] Turning to the substantive issue, I am careful the case law submitted by the parties, the wording of the 2009 Memorandum, and the context provided by the language of the Collective Agreement. The factors that I have particularly kept in mind are the following: 1. Paragraph 1(a) of the Memorandum req determine whether there is a vacant position for which the Grievor is qualified to perform the required duties. [Emphasis added] 2. While I am not directly guided by the language of the Collective Agreement, as this is n a grievance going to a purported breach of the CA, I note that Article 20. redeployment section – states that a laid-off employee shall be assigned to a vacancy, provided that “he or she is qualified to perform the required duties”[Emphasis added]. This language is identical to the relevant language in the Memorandum. previous Collective Agreement, which used the term: “he or she is minimally qualified to perform the job; this is defined as ‘the ability to do the job at entry level’”. 4. As a general rule, the redeployment of surplussed employees would not ordinarily requi ministry-specific or other unique knowledge, beyond the expected and justifiable qualifications, as an essential pre-condition for an assignment to a particular position. agree with Vice-Chair Dissanayake, in AMAPCEO (Policy Grievance) and Ministry of Government Services, para. 52, that, with respect to the meaning of “qualifications”, the spirit of the redeployment provisions should only require the surplussed employee to demonstrate that she or he has adequate transferable skills and experience, and is ca of learning the specifics of the vacant job under consideration within a reas - 15 - ore e s going to raise this kind of requirement as an essential qualification, it must demonstrate, on the balance of e particular position, and therefore the position cannot be expected to provide a familiarization period. h r job, the Employer had assigned a value of 30% to: “Demonstrated knowledge of legislation (Highway Traffic Act) related acts and regulations; ability to interpret and apply ministry policies and assignment to this particular position. In other words, as an essential pre-condition, the period of time. I say this even though the language in the Memorandum is arguably m lenient towards the Employer than the “entry level qualifications” language in the AMAPCEO collective agreement considered by Vice-Chair Dissanayake. 5. However, I also agree with Vice-Chair Dissanayake’s comments later in that same decision that, as an exception to the general rule, some positions may legitimately requir ministry specific or other unique qualifications that should not expect a familiarization period. That is, the employee is expected to be fully or virtually-fully functional upon commencing the new job. In circumstances where the Employer i probabilities, that this ‘fully-functional’ or ‘virtually-fully-functional’ qualification is integral to the core duties and responsibilities of th 6. All parties agreed that Ms. Nucci did not have any specific experience or familiarity wit the relevant portions of the Highway Traffic Act. 7. When devising the position description for the Group Leade procedures to unique and complex cases”. This value assignment made it equal to the other leading criteria pertaining to group leadership skills. [50] Having considered all of the evidence, I am satisfied that the Employer has demonstrated, on the balance of probabilities, that it was proper for the Group Leader position to require that a surplussed employee would have to be ‘virtually-fully-functional’ upon surplussed employee must have a demonstrated knowledge of the Highway Traffic Act without the opportunity for a familiarization period. [51] I have come to this conclusion because Ms. Khan’s evidence has persuasively demonstrated that the Group Leader position required someone who could function immediately at a high level with an intimate understanding of the relevant parts of the - 16 - application legislation. Ms. Khan’s evidence was not significantly shaken on cross- examination. In directly supervising the Ministry’s call centre, the Group Leader is responsible for ensuring the efficient and accurate flow of legislative, technical and f the res retation, but with a specific personal knowledge of the relevant Act and its pertinent sections. s this ntary in any way of her abilities and qualifications. Rather, the outcome speaks to the quality of the Employer’s evidence: the the issed the Union’s contention that the terms of the 18 September 2009 Memorandum of Settlement with respect to its decision not to redeploy Ms. Nucci in the position of Group Leader in sportation. Dated at Toronto this 22nd day of December 2011. Michael Lynk, Vice-Chair policy information from the regional scheduling clerks to the public. A core aspect o job involves the hands-on regulation of public safety on the roads. All of these featu demonstrate the necessity of the person in the Group Leader position possessing, from the beginning, an intimate familiarity not simply with the skill of legislative interp These features are sufficient in this case to establish the ‘virtually-fully-functional’ qualification for the job, and to make the Group Leader position one of those exception to the general rule pertaining to ‘adequate transferable skills and experience’. [52] I am quite satisfied that Ms. Nucci is a capable and skilled public employee. Hence, decision should not be seen as an adverse comme Group Leader position is one of those exceptions that legitimately requires more than standard possession of ‘adequate transferable skills and experience’ by a surplussed employee engaged in the redeployment process. [53] Accordingly, for the reasons stated, I have dism Employer has breached the the Ministry of Tran