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HomeMy WebLinkAbout1980-0052.Genys.dateunknown.IN THE MATTER OF AN ARBITRATION'~ Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD .~ . Between: Before: .,. For the Grievor: For the Employer: Hearing: Pete? P. Genys Grievor - And - . . The Crown in Right of Ontario (Ministry of ,the Environment) Employer E. B. Jolliffe, Q.C. Vice Chairman 'A. G. Stapleton Member I. J. Thomson Member L. Stevens, Grievance Officers Ontario Public Service Employees Union G. A. Berry, Staff R~klations Advisor 'Personnel Services Ministry of the Environment June 18, 1981 .> -2- DECISI'ON This grievance followed the result of a competition held in December, 1979, to fill a vacancy in the position of Waste and Water Project Operator 1 at the Lakeview Water Pollution Control Plant, located in Mississauga and operated by the .Ministry of the Environment. The grievor, Mr. Peter Genys, had been employed since December 12, 1977, as a Grounds and Buildings Care- taker at the Lakeview Plant. The successful candidate in the competition, Mr. John Bispo, had been employed in the same capacity since July 30, 1978, so that the difference in seniority was slightly more than seven months. Mr. Bispo had been notifed of the arbitration and was present through- out the hearing on June 18. He was given an opportunity to obtain representation, or to ask questions, or to make submissions on his own behalf, but declined to do SO. On consent, evidence: five exhibits were admitted into 1. The app licable collective agreement, made . between the Management Board of Cabinet and the Ontario Public Service Employees Union and stated to be effective from February 1, 1979, to December 31, 1979. 2. The notice inviting applications,posted by the hlinistry on November 2, 1979. -3- 3. The "Position Specification and Class Alloca- tion Form" in respect of the position, authorized on October 22, 1973. 4. The application made by Mr. Genys, dated October 9, 1979. ication made by Mr. B ispo, dated ';.~.,,. 5. The appl October 29, 1979. Since both applications antedated the posting, it can be inferred that both men knew of the vacancy in advance. They were interviewed in December, probably on December 13, and hlr. Genys grieved on December 24. The grievance (which forms part of the Board's records) complained that "the Article 4.3 of ~the collective agreement has been contravened in filling the vacancy for I a Waste and Water Project Operator 1 at Lakeview W.P.C.P." and requested "that I be given the position or that the competition be held over again." Apart from the five exhibits specified above, the ,only other evidence tendered was that of the grievor him- self. After a brief recess, Mr. Berry for the Employer elected not to tender any evidence, submitting that a p~ima facie case'had not been made out and that the grievance should be dismissed in accordance with the principle recognized in Fish 139177. In particular he quoted the following passage ,-at page 6: the fa A motion for non-suit requires the Board to decide whether the grievor has ‘led a suffi- cient quantum of probative evidence to make P * facie case. In this case the Board yin%?hat the grievor has failed’to do so and the motion for non-suit is granted. Ii making a compZaint that the employer vioZated Article 4.3 of the collective agreement, it was up to the grievor to show the nature of the work to be performed, his ability to do that work, and the relative equality between his ability to do the work and OuelZette ‘s ability to do so. While it may be possible to regard the job advertisement as indicating the nature of the work and while owe have evidence of Fish’s qualifications, we were,,. presented with no evidence of Mr. Ouellette’s qualificat’ions - even though Mr. OeulZette was pres~ent at the hearing. In a grievance involving competition between candidates, where s.eniority is not relevant until rela- tive equality between candidates has been established, there should be evidence as to the qualifications of both candidates. On behalf of the grievor, Ms. Stevens qu,estioned ,irness of the Employer's approach and argued that by failing to call any evidence the Employer had placed in jeopardy the interests of both the grievor and the third -party, Nr. Bispo. She pointed out the difficulty of the bargaining agent's role in such circumstances since'it had responsibilities to ally &iiployees in the bargaining unit. In Ms. Stevens' submission, the evidences.of the grievor himself taken together with .a comparison of the two applications establ~ished that their qualifications were at least relatively equal, thus bringing into play Article 4.3, which is as follows: In fiZling a vacancy, the EmpZoyer.shall give primary consideration to qualifications and ability to perform the required duties. h’here qualifications and ability are relatively equal, length of continuous service shall be a rnnctdcrotion. -5- The evidence of the grievor himself may be summarized as follows. After reaching Grade 10 in 1967 or 1968 at the Central Technical School (where he took such subjects~as automotive mechanics, plumbing, basic wiring;carpentry and sheet metal work) he was employed at various jobs in construction, dry-cleaning, an elec- trical'shop, a garage, and as a Superintendent in charge of maintaining a swimming pool, air conditioning and the heating systems in various apartment houses and a hotel, until he joined the Ministry at Lakeview. There he has been assigned to work on the grounds and in. the buildings of what is known as Section 3. He said that when he applied for the job he asked if there were any prospects for advancement and was told (not surprisingly) that there were. He also said he, applied for admission to certain Ministry courses so that he could upgrade his qualifica- tions, but received no reply. He conceded that he would have much to learn about the work of an Operator 1, but also said he had done inside work such as removing a large valve, which was not really a part of his normal duties. He insisted he had.been asked very few questions as to what he knew about the various operations carried on at then plant, but said later he had been asked about the pumps and valves used, to which he had ~to reply that he did not know. nrs . Stevens invited the Board to compare the application of h:r. Genys, Exhibit 4, with that of.hlr. Bispo, Exhibit 5, which we have done. This much can be said of -6- these documents: they suggest (on their face) that Mr. Bispo had a little more education --- he claimed to have attained in Portugal the equivalent of Grade 12 --- and that Mr. Genys appears to have had more practical, exper- ience in such areas as mechanics, electricity, air conditioning and the cqntrol of water quality in swimming pools. On the other hand, according to Mr. Bispo's applica- tion, his major subject in school was'~&hemistry; he has done some laboratory work on such problems as acidity and alkalinity, and he added: "Actually I'm taking a night course which gives me good knowledge of water studies (Biology and Bacteriology. on surface waters)." Previously, he had worked as an interpreter, driving instructor and apartment building Superintendent. ~. As Ms. Stevens said, there is some evidence --- that of the grievor himself and statements in the two applications. In the Board's view, such evidence is not sufficient to establish a prima facie case that the grievor's. qualifications and ability.are relatively equal to those of the successful candidate. His own testimony merely informed us of his own experience and qualifications and gave no indication whatever of hlr. Bispo's qualifications or ability. The Bispo application is a frail reed on which to depend for an assessment of his credentials and provides little basis for comparison with those of the ,grievor. As for the conduct of the competition, the only evidence is that the grievor, who complains he was not asked to::explain his knowledge of the plant's operations. Unfortunately, this proves nothing about the questions put to Mr. Bispo or the answers. Nor do we have any evidence about the criteria used by the Selection Board in conclud- ing --- as it must have concluded --- that Mr. Bispo was better qualified than Mr. Genys. This is not to say that the Board is entirely satisfied with the course adopted by the Employer in this case. In other cases, representatives of the Employer have made what might be called "full disclosure".-by calling wit- nesses, including those who made the selection, so that the . Board could be informed as to how the competition was con- ducted and the rea.sons for which the choice was made. The "full disclosure" policy is more likely to promote good relations between the parties and reinforce the credibility of the system. If management is confident that the correct. decision was made, it has nothing to fear from "telling all". All parties have an interest in improving the competition system, wherever there may be room for improvement. A policy of non-disclosure, if.such were to be adopted for tactical reasons, is not conducive to'such improvement.. ." Having regard to the ,paucity of evidence, the Board must find in this case that the grievance~fails.. There was an onus on the grievor to show either (a) that his qualifica- tions and ability were superior to those of the suc,c~essful candidate; or (b) that they were "relatively equal". This has not been done and the grievance must be-.dismissed. .: .