HomeMy WebLinkAbout1978-0104.Sandford.81-07-08. IN THE MATTER OF AN ARBITRATION
Under the
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Between: Mrs. Claire J. Sandford
and
Grievor
The Crown in Right of Ontario
Workmen’s Compensation Board Employer
Before: Professor K. Swinton - Vice-Chairman
Mr. R. Russell !Member
Mr. D. B. Middleton - Member
For the Grievor:
Fa the Employer:
Mrs. Claire J. Sandford (Crievor)
Mr. M. P. Moran
Hick, Morley, Hamilton, Stewart and Storie
Barristers & Solicitors
Hearins
April Z&h, 1981
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This is a grievance in which Claire Sandford claims that she was
unjustly denied a promotion to the position of Claims Counselfor in the
North Bay office of the Workmen’s Compensation Board, contrary to
Article 5 of the co&active agreement. Mrs. Sandford appeared on her own
behalf in this grievance. The union stipulated that jt would not be bound in
any interpretation of the collective agreement which results from this
.award of the Grievance Settlement Board.
Sandford has been an employee. of the Workmen’s Compensation
Board since.December 9, 1974, when she was hired as. a Stenographer in the
Sudbury office. At the time she applied for the Claims CounselJor job on
February 8; 1978, she was working ‘as a Claims Receptionist Counselor in
the North Bay Office. She had held that job since February 18, 1977.
The major activities of the Claims Counsellcr position are set out
in the job description (Rx. 18). They include the following:
1. Assess and keep attuned to present and future
needs; trends, problems and opportunities for
improvement relating to community information ”
and counselling needs.
2. Handle difficult enquiries pertaining to a
specific claim cr general Board policies and
procedures.
3. Obtain any necessary information, initiate and
complete required action to satisfy, expedite
or resolve enquiries.
4. Act as the interface and personal point of
contact between the injured employee, employer
or representative, and the Board to expedite
decision making and facilitate communication of
information.
,
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5. Conduct field counselling and information
gathering activities in response to community
and Board needs, as required.
6. Conduct speaking engagements for small groups,
on an informal basis and establish contact with
employers and other interested community
groups to promote public r,elations and a basic.
understanding of the Board’s policies and
procedures.
7. Provide assistance and guidance on all matters
relating to the Information and CounsellIng
Services in the Board.
8. Explain and inform the public of specific rights
and entitlements under the Act.
9.
10.
Respond to enquiries for information and provide
counsel on other community agencies and
services.
Act as an interpreter and translate
correspondence as required.
II. Substitute for the Claims Investigator or Senior
Counsellor during absences, prolonged illnesses
or vacation periods, as required.
12. Perform other duties as assigned.
The qualifications for the position are also found in the job description.
They include:
REOUIREMENTS
1.
2.
3.
Grade XI I I or equivalent
Three years related experience
Effective communicative skills and established
ability to work with people.
4. Skilled in interviews, report writing and
counselling.
5. Good general knowledge of the Board’s
operations, would be an asset.
6. Must be able and willing to travel as required.
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7.
8.
Additional language facilities would be an asset.
Willingness to relocate according to Branch
needs.
The grievor and one other employee applied for the position of
Claims Counsellor.’ Both were interviewed by John Lawson, Senior Claims
Counselfor in the North Bay office. The interview with Sandford occurred
on February 15, 1978 and took approximately one hour. SubAequently,
Lawson prepared a report, based on the interview and Sandford’s past
performance, recommending that she be denied the promotion. His reasons
were several. First, he mentioned that there was some doubt about her
educational qualifications. While she stated that she met the Grade 13
requirement because she had Grade 12 from,Quebec, Lawson noted that her
. application form stated that she had Grade 12. Her explanation was that
she lied on the form in order not to appear overqualified for her original
stenographer’s job. Lawson also mentioned her ability to speak English and
French as an apparent asset.
Secondly, he dealt with the requirement of three years related
experience. Lawson felt that this requirement could be satisfied only if
the grievor had three years of experience in communicating information to
the public and relaying information to headquarters in Toronto, as these
were important activities of the Claims Counsellor. He felt that the work
of a Claims Receptionist Counselfor met this requirement, as it provided
some opportunity to deal with enquiries. The griever had filled that job for
only one year. Her earlier work as a Stenographer was not “related”
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experience in his view.
Thirdly, Lawson discussed the grievor’s communication skills. She
appeared to be at ease in dealing with clients personally, although there
had been a few complaints in the past about her manner on the telephone.
These had been corrected. However, this past problem plus her
inexperience in ryport writing lead to a negative finding on her
qualifications under this requirement.
Fourthly, there was discussion of the griever’s ability to trawl,
which was required about four days a, month to service offices in New
Liskeard and Kirkland Lake. Although she indicated a willingness~ and
ability to travel, -Lawson expressed doubt about her sincerity because of
her marital and family status. Mrs. Sandford is married and has two
childFen.
Fifthly, her general knowledge was rated insufficient for the job.
In addition, reference was made to her ,attendance record, which Lawson
regarded as “rather high” - 13 days and 2Y, hours in a one year period.
Lawson testified that he took into account the grievor’s past
performance, referring to an evaluation dated June 7, 1977 (Ex. 19) in
which he had expressed dissatisfaction with her performance. As well,
documents dealing with the griever’s performance were introduced,
showing various areas of criticism, such as telephone manner and
maintaining a personal “miscellaneous” file contrary to Board practice.
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The report of February 15, 1978 was followed up by two memos to
George Picken, Manager, Claims Information and Counselling. Both dealt
with Sandford’s educational achievements. Picken had instructed Lawson
to ask Sandford for her graduation certificate, and these written memos
documented conversations between Lawson and Sandford pertaining to the
certificate, which Sandford said had been stolen. She told Lawson that she
was trying to obtain a replacement, but had not done so by March 15, 1978.
Her explanation, in evidence before this Board, was that the Quebec school
which she had attended had been taken o&r by a new order of nuns and her
records could not be found.
In one memo, Lawson also commented unfavourably on the fact
that Sandford’s daughter spent two and a half hours in the staff.lunchroom
one day after a doctor’s appointment. This, to him, was evidence of
Sandfords restricted mobility, should she become a.Claims Counsellor.
Subsequently, George Picken recommended to the Director of
Claims Information. and Counselling that neither Sandford nor the other
candidate should be appointed. His report (Ex. 22) seems to rely heavily on
Lawson’s report and memos with regard to Sandford’s gualifications. The
result of these recommendations was notification to the grievor on March
22. 1975 that she was unsuccessful in her bid fat promotion in that she
failed to meet the basic requirements of the position. In fact, neither
applicant was selected.
The Claims Counsellor job was withdrawn ,in June, 1973 and
replaced by a Claims Receptionist CounseUor job through a change in staff
requirement. The Claims Counsellor position was not reinstituted until
. .
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April, 1980, when the number of complex claims necessitated the change.
By, that time, the grievor had been demoted to a stenographer’s position
and.transferred back to Sudbury. This occurred in June, 1979.
The grievor claims that she has been unjustly denied the
promotion contrary to Article 5 of the collective agreement. Subsection
(5) is of most relevance to the grievance. It reads:
i’
5. Role of Seniority in Promotions and Transfers
Both parties recognize:
(a)The principle of promotion within the service
of the Employer.
(b)That job opportunity shall increase in
proportion to length of service.
(c)That the primary considerations in filling a
vacancy are qualifications and ability to perform
the required duties.
td)Therefore, in making staff changes, transfers
or promotions, where qualifications and ability
are relatively equal, seniority shall be the
determining factor.
The grievor argues that. she has been the subject of mjust
discrimination in her employment with the Workmen’s Compensation Board
and, in particular, in relation to this promotion. She testified about her
employment history, from its beginnings in Sudbury to the time in North
Bay prior to the job competition. She first alleged that she was Lnfairly
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treated because she had been a union steward in Sudbury. This activity,
she said, had caused the North Bay administrator, <Mr. Little, to resist her
request for a transfer from Sudbury to ‘North Bay in August, 1976.
However, she did obtain a transfer in late October of 1976. She testified
that she had continuous difficulties with Little, especially as she had
applied for and obtained a promotion from Stenographer to Claims
Receptionist CounseUor in February, 1977 without his knowledge.
Throughout her testimony the grievor expressed the view that various
supervisors had treated her unfairly or dbcriminatorily - whether Little,
Boody (hjs successor), Lawson, or the supervisor who ran a training course
in Hamilton which she was required to attend in September, 1978.
The grievor also testified that she was qualified for the Claims
Counselfor job, stating that her educational background was equivalent to
Grade 13, that she had three years related experience with the Board, and
that she was willing and able to travel.
In assessing the evidence, this arbitration board must decide
whether the grievor possessed the qualifications and ability for the job
which she sought, provided the requirements set by management were
reasonable for the job.. As the Claims Counsellcr position is one requiring
interviewing skills, an ability to convey information about The Workmen’s
Compensation Acs and an ability to deal with claims files, the
requirements of writing and communication skills, education, and
knowledge of the Act listed earlier appear reasonable, and Sandford did not
attack them. Rather she focused on the issue of qualifications and argued
.
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that she met the specified requirements, but was treated discriminatorily
in the application of those requirements.
After considering the evidence, we have found that Sandford
failed to meet the qualifications for the job. Her educational qualification
was in some doubt, although that need not be determinative here. She . .
lacked the necessary experience in tasks sufficiently related to the Claims
Counsellor job - that is, interviewing clients, report writing, dealing with
claims files in relation to matters other than rehabilitation.
Furthermore, it appears that the griever’s work and attitude, in
Lawson’s opinion, needed improvement. Sandford denied this, yet there is
some difficulty in accepting this testimony. In giving her evidence, she
often evaded questions posed by counsel for the employer with regard to
her work performance and, when pressed for an answer about criticisms of
her performance or doubts about her qualifications, she tended to blame
supervisors or others for her problems, rather than admit any deficiency in
her performance. Finally, the grievor herself admitted in
cross-examination that she did not meet the standards of the Workmen’s
Compensation Board for the Claims Counsellot job, although she argued
that she could adapt if given the opportunity.
As the griever failed to meet the qualifications for the job, her
grievance is dismissed. There is no evidence that the grievor was denied
the job because of union activity or personal ill will towards her on the part
of her supervisors.
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Before closing, the Board wishes tb express some concerns which
arose in the hearing because of the manner in which Sandford’s application
for promotion was considered. It appears that Lawson and Picken, who
wrote the determinative reports with regard to her application, relied on
certain considerations which seem inappropriate to the outcome of the job
competition. In particular, we were disturbed by the comments with
regard to Sandford’s ability to travel, the .implications drawn from her
child’s visit to the office, and the negative references to her attendance
record. With regard to the latter, her absences totalled thirteen days,~all
me?lically justified. The office average was about nine days a year.
Therefore, Sandford’s record was not a serious departure from the norm.
She also testified that the Leason for her absence was a congenital defect
in her hip which was corrected through surgery. Therefore, reliance on this
consideration seems unwarranted. Similarly, the skeptical attitude in
Lawson’s and Picken’s reports towards the griever’s expression of ability
and willingness to travel demonstrates a close-minded stereotyping of the
applicant because of her family status , rather than an open and fair
consideration of her personal circumstances and plans, should she obtain
the promotion sought.
While these observations should not have entered into the reports
on the griever’s qualifications, they do not affect the outcome of the
grievance. Mrs. Sandford failed to meet several of the qualifications
required for the Claim Counsellor job. Therefore, her grievance is
dismissed.
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DATED at Toronto this 8th day of July, 1981.
r
Prof. K. Swinton - Vice-Chairman
“1 dissent” (See attached)
Mr. R. Russell - Member
”
It
4 &/,wf ,
Mr. D. 8. Middleton - .Member
DISSENT
Claire J. Sandford
and
Workmen's Compensation Board
I have read the draft of the Chairman, Prof.
Swinton and I regret I cannot agree with the conclusion
set out in the draft ,award. Therefore, set out below are
my differences regarding the draft award.
r
This case was somewhat unusual in that the grievor
was obliged to represent herself in that the Union did.
not have a representative attend the hearing. On the
other hand, the employer used the services of a trained
and experienced lawyer. Consequently, I feel the grievor
was somewhat at a disadvantage in clearly presenting her
case.
I tend to believe the evidence of the grievor that
Mr. Little, her North Bay Administrator,was opposed to the
Union and as the grievor was a union steward this worked
against her. Moreover, from the evidqnce I conclude %r.
Little passed on his bias when the grievor did obtain a
transfer without Mr. Little's permission or knowledge.
Two matters must be taken into consideration by
the Arbitration Board:
1. Did the grievor have the ability and qualifica-
tions for the job she was seeking?
2. The language of the Collective Agreement.
Article 5. -
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I cannot agree that the grievor did not meet the
qualifications for the job. In my view a good deal of
weight was given to Lawson's opinion that the grievor's
attitude needed improving. The company stressed picayune
matters, such as saying they could not satisfy themselves
on her education records or that she was absent a total z
of 13 days 23 hours in a whole year which Lawson charac-
terized as high or that the grievor's.daughter once spent
2+ hours in the lunch room waiting for her mother after
attending a doctor's appointment. These' few illustrations
are only some of the small matters that influenced manage-
ment's opinion. It is interesting to note (again by way
of example) that despite the grievor's clear statement to
management that she was willing to travel, management used
as one of the reasons for denying her the job that because
her child spent 2+ hours waiting for her once in the lunch
room, this was proof she could not travel.
On the other hand, the management played down such
an important attribute possessed by the grievor, namely
her ability to converse, read and write in Canada's two
official languages. For the interview work required for
the job she applied for bearing in mind the geographic
location of Northern Ontario; this was a tremendous asset.
But the management played it down as unimportant.
It would appear that the grievor met the require-
ments of the Collective Agreement, Article 5 and I parti-
cularly note 5(b) "That job opportunity shall increase in
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proportion to length of service".
I tend to accept the fact that there has been some
discrimination against the grievor in regard to this
promotion.
While the grievor may have lacked some experience
in related work to a claims counsellor's job, this did not
mean she could not do the job.
Rather than set,out my views in detail as to why I
believe management subjectively decided against giving t,he
grievor the-,job she applied for, namely Claims Information
and Counselling,and why I believe discrimination influenced
their subjective determination, I point to Exhibit 22 as
one illustration of this.
I have read over the evidence and referred to the
,exhibits and the conclusion I am obliged to arrive at is
that the-role played by the grievor during the union organ-
izing campaign and her subsequent acceptance of the position
of union steward, made a lasting impression on her super-
visors which made it difficult if not impossible for them
to view the grievor and her work record objectively.
I would, under the circumstances grant her the
promotion she sought. This'would date from the date of
the grievance, namely, April 7, 1978.
K. K----y I
R. Russell
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