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HomeMy WebLinkAbout1976-0100.Zuibrycki.79-05-03IN THE MATTER OF ,AN ARBITRATION Under The CRQH;I EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Mr. N. Zuibrycki and Griever The Crown in Right of Ontario Ministry of !ndustry & Tourism Employer Before: ,Mr. George Adams Mr. George Peckham Mr. Harry Simon Chairman Member Member For the Griever: Mr. George Richards, Grievance Officer Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario For the Employer: Mr. W. E. Rooke Director, Personnel Branch Ministry of Industry and Tourism 9th Floor, Hearst Block Queen's Park Toronto, Ontario Hearing: \ January 30th, 1979 suita 21% 180 Dundas St. West Toronto, Ontario - z- In this case the grievor, Mr. Neil Zuibrycki, grieves his failure to bid successfully on four posted vacancies. One vacancy involved that of a technical consultant for the Finance and Loan Administration Branch of the Ontario Development Corporation. Another was that of a senior disbursement officer for the Loan Disbursements Branch. And the last two vacancies were those of technical consultants in the Loan Applications Branch. I Mr. Zujbrycki challenged the Corporation's response to his applications in a memorandum to D. M. Rodgers dated October 13, 1976. ONTARIO DEVELOPMENT CORPORATION Mowat Block, Queen's Park 900 Ba$Street Toronto, Ontsrio.V7A 287 Phone 965-4622 Mem to D. M. Rodgers Date October 8, 1976 From: N. Zuibrycki Subject Promotional Opportunities on Internal Competitions - July to September 1976 I feel aggrieved by the recent promotions of A. Tofano, P. Byrnes, M.Bobadilla and J. Quigley. Having a career profile suggesting,qood to excellent related formal education,.10 years of industrial experience, 10 years of business term lending experience, in the past 2* years acting as the officer handling the mre difficult accounts in the Loan Disbursement Branch, 3 l/3 years seniority and a clear record, a personally favorable decision was my expectation, on the overall picture, of the four recent internal promotional opportunities. I am interested in some reasons for the recent internal promotiOnS, aS an explanation of my unsuitability in a mutual discussion or reply, since the records indicate my suitability, using the criteria established for the position of Technical Consultant 1, in the Staffing Standards Manual. I have already communicated this matter to Mr. L. S. Davis as per my attached memD dated September 28, 1976. c-e P 7, ,-L-i-AI_---- Iv. Zuibrycki (Signature) -3- Mr. Rodgers responded by memorandum dated October 13, 1976. It reads: ONTARIO DEVELOPMENT CORPORATION Mowat Block, Queen’s Park 900 Bay Street, Toronto, Ontario M7A 2E7 Phone 965-4622 Meim to Mr. N. Zuibrycki Date October 13, 1976 From D. M. Rodgers Subject Prormtional Opportunities on Internal Competitions - July to September 1976 This memorandum will record that the matters raised in your memorandum of October Eth, 1976 have been discussed with you personally. During the discussions the Corpora- tion's policies with respect to the engagement of new personnel and the promotion of existing personnel were outlined in detail. It was indicated that you could speak to any of the directors respecting your unsuccessful applications. However, your memorandum requests an explanation as to your unsuitability. Rather than being unsuitable, it is perhaps the case that you were not considered the,most suitable applicant for any of the positions for which you applied. It was further indicated to you th& a lateral transfer into one of the other divisions of the Corporation would be of benefit so that your talents could be more closely observed and also provide you with the opportunity of increasing your knowledge of the Corporation's functions. You were to give this latter point some consideration and let me know whether you would be willing to accept a lateral transfer, and your advices in this connection would be appreciated as soon as possible. Meanwhile I feel that you should x-examine your own position and the manner in which you conduct and apply yourself to your existing duties as there could be some habit or possible lack of co-operation which is known throughout the Corporation prohibiting you from being the successful candidate in competitions. DHR:ef -____~ .T i -4- The grievor is currently employed by the Corporation as a Financial Officer 3 or Loan Disbursement Officer. As a Loans Dis- bursement Officer he must deal with all three departments of the Corporation involved in a loan transaction - the Loan Applications Department, the Loan Disbursement Department; and the Loan Administra- tion Department. Before a loan can be disbursed, proper applications and other legal documentation must be completed by the applicant and the grievor was responsible for insuring this to be the case. He has been employed in the capacity since 1973 and subsequently received all available merit increases and has never been disciplined. The Staffing Standards Manual describes the personal requirements for the Technical Consultant I classification in the following way: Department of STAFFING STANDARDS MANUAL Category: SOC Group 8 Civil Service Class Series Class Code TECHNICAL CONSULTANTS 12114, 12116 TECXNICAL CONSDLTART 1 - 12114:.~ EDUCATION: A degree from a university of recognized standing in Engineering, Accounting, Finance, Commerce, Business Administration, or another business-oriented discipline g an equivalent combination of education and senior management experience. EXPERIENCE: Evidence of ability to identify and diagnose fairly 6omplex business problems, and recommend effective corrective action in such areas as plant layout, capital eguipment, production methods, re-organization of mnagment, financial assistance, etc. This ability will have been acquired through executive interviews, plant.tours, contacts in industry, and confidential reports; plus day-to-day experience in either the production or financial management of manufacturing - 5 - companies, This experience will preferably have been acquired in several industries at a fairly senior executive level. PERSONAL SUIl'AEILITY: Evidence of ability to: inspire the confidence of client executives; identify and analyze broad mansge- ment problems; convince client management that pro- posed improvements are correctly recommended: perform with little supervision; convey the purpose of the Ontario Development Corporation as guest speakerto service club, etc.; maintain liaison with similar organizations such as the Industrial Development Rank, Trade and Industry Division, municipalities, etc.; write clear, concise reports with carefully planned and documented recommendations. Recruitment Branch Date May 3, 1971 The class standard for this classification sets out the regponsibi- lities of the classification in some detail. It reads: CLASS STANDARD: 12114 TECHNICAL CONSULTANT 1 This class covers the positions of employees of the Ontario Development Corporation, who conduct investigations into the management problems of companies requesting assistance from the Corporation . Under the supervision of a senior consultant or Branch Director, they provide technical and advisory services to companies and individuals, analyzing problems, arranging for financial and other aid and ensuring that proposed solutions are viable. They analyze applications, interview senior management officials and observe the actual operations in order to determine the type of assistance required and how it may best be provided. In addition to their own studies, they also evaluate reports solicited from such sources as company auditors and independent investment analysts prior to the granting of financial or other assistance. In co-operation with other advisers and analysts from tbe Corporation and after the granting of assistance, they ensure the company’s adherence to a budget established by them- selves through a continuing review of financial statements and other reports. They maintain liaison with chartered banks and other financial institutions and Federal and Provincial Govern- ment departments, in order to facilitate negotiations for long and short term loans for the companies with which they deal. They make recommendations for the rejection or ratification of applicant companies. when assistance is granted a company, they represent the interests of the Province ensuring that the companies abide by the terms and conditions under which the assistance has been granted throuqh a review of financial and other reports. .> P . . i -6- SKILLS AND KNOWLEDGE REQUIRED: Good understanding of the objectives and powers of the Ontario Development Corporation;. extensive knowledge of Ontario's industries, resources, end economic development; broad knowledge of the various areas of business activities, financial, managerial and technical; good understanding of sound business techniques; ability to analyze complex problem situations and reconrmend solutions; managerial skills; ability to communicate effectively; ability to establish end maintain good working relationships; a high degree of tact and good judgement. MINIMUM STAFFING STAMIARDS: A good general education and extensive res&wnsible &ministretiVe experience at the senior management level preferably in more than one medium-sized or large industrial company, OR - Professional education end extensive progressively responsible industrial experience 4s a senior consultant or manager in a ProfeS- sional or technical area such as engineering, finance, plant management, marketing, production end quality control. Revised June 29, 1969 The grievor is forty-eight years old and is married. He has a profes- sional engineering degree from the University of Manitoba and an M.B.A. degree from the University of Western Ontario. From 1966 to 1972 he was an investigation officer and credit officer for the Industrial Development Bank. His duties in the latter role included handling initial loan inquiries with businessmen; scheduling investigations; reviewing investi- gation reports on loan proposals to the Bank for authorization; setting up loan contracts; disbursing funds on completion of various stages of loan programme; and follow-up loan administration during repayment. Loans ranged from $5,000 to $200,000. His work experience before this included employment with the Canadian Westinghouse Co. Ltd. as a manufacturing engineer; the University of Western Ontario as a mechanical engineer; and with General Motors Diesel Limited as a service engineer. Mr. John King, Oirector of Advisory Services with the Corporation. : -‘J _ was called on behalf of the grievor.~ He was responsible for hiring the grievor and supervised his work for several months. He said he had been very satisfied with the grievor's performance and would be prepared to consider him for a technical consultant position. On cross-examination the grievor admitted that the Minaki Lodge account had been taken from his responsibility but did not know the reason why: He assumed that his supervisor wanted greater control in the administration of this matter, but he was never told what these better controls might be. He said this was the largest loan the Corporation , ever made and it had been constantly plagued by problems over which no one had control. He was not aware of any complaints in his handling of this account. He also denied knowledge of any complaints about his handling of the Great Lakes Barge account. Finally, he was shownthe judge- ments of both the Ontario Supreme Court and Court of Appeal in the cas,e of Patrick L. Roberts Limited v. Sollinger Industries Limited and Ontario Development Corporation. The decision of Mr. Justice Grant appears to have beenreleased on June 30, 1976. In this case the learned trial judge found the grievor to have made misrepresentations to the plaintiff serious enough to activate the principle of Hedley Byrne & Co. Ltd. v Hiller & Partners Ltd., I19641 A.C. 465 and his decision in this respect was upheld on appeal. The grievor, before this tribunal, denied the judge's findings of fact and questioned the competence of the Counsel who had acted for the Corporation. The other co-defendant was not repre- sented at trial and it would appear that the grievor was not personally represented either. The employer chose to call no evidence. The successful candidates in the challenged competition were given notice of this hearing and attended the proceedings. The notice given to these four people was filed with the Board. However, these people did not choose to testify -B- or provide the Board with any other evidence. The only evidence filed with the Board, without objection by the Union, was a listing of all candidates and their backgrounds and.three.competition summaries showing that the grievor had been rated lowest in all three competitions. DECISION The presentation of this case by the'employer was far from satisfactory. The grievor testified and he called one witness. From this evidence we are satisfied that he made out a prima facie case that he was at least equal in ability and qualifications to all of the other candidates in each competition. However, we are not satisfied that he established that he was demonstrably superior in qualifications and ability to any of the other candidates. Accordingly, he successfully established his claim, in a prima facie way, only in relation to those employees who possessed less seniority than he did i.e. Messrs. Quigley and Tofano. In our view, at the conclusion of the grievor's case, the evidential burden shifted to the employer and these two candidates to explain and otherwise justify the employer's decision. We must note that the grievor admitted to no shortcomings in his performance and the findings against the grievor in the decision of Mr. Justice Grant cannot be applied against the grievor in this case. The grievor was not a party to those earlier proceedings and he disputed the findings of fact made by the learned judge. In such circumstances, the Board would be relying on hearsay evidence if it took the findings in that piece of litigation to be facts established in these proceedings. Moreover, there was no evidence that the various selection boards relied -9- on the decision of Mr. Justice Grant in coming to their decisions. The grievance must therefore succeed. The matter is remitted to the parties to fashion an appropriate remedy forthwith. The Board retains jurisdiction in this respect and will entertainan applica- tion within thirty days of the release of its decision should an accept- able accommodation escape the parties. Dated at Toronto this 3rd day of May 1979.' George W. Adams Chairman' I concur George Peckham Member I concur Harry Simon Member