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HomeMy WebLinkAbout1982-0256.Borecki.82-10-18i SETTLEMENT BOARD I INTHEMATTEROFANARBITRATION Under THE CROWN EMPLOYEESCOLLECTIVEBARGAININCACT Before s THECRIEVANCESETTLEMENTBOARD Between: OPSEU (Walter Borecki) and The Crown in Right of Ontario (Ministry of Natural Resources) Grievor Employer Before: K. Swinton - Vice-Chairman I. Thomson - Member N. Cauola - Member For the Crievor: N. Luczaj, Grievance/Classification Officer Ontario Public Service Employees Union For the Employer: P. Mooney, Supervisor Staff Relations, Personnel Services Ministry of Natural Resources Hearing: August IO, 1982 ., i ( ., -2- This is a grievance arising out of a job posting for the position of Outdoor Recreation Technician II in the Niagara District. The successful applicant, Bill Fisher, was given notice and appeared at the hearing. (. The collective agreement, in Article 4.3, provides for a competition between candidates. Seniority is relevant only if candidates are relatively equal. The article reads: e 4.3. fin filling a vacancy, the Employer shaIl give primary cenaIdaatbm to quaIi&ationa and ability to perform the required duties. Where qualifications and ability are relatively equal, length of contin- service shall be a cons&ration. In this case, the grievor, Mr. Borecki, was not called for an interview. The employer screened the application forms and interviewed some, but not all, applicants. The union argues that this action was arbitrary and unfair and that all applicants should have been interviewed. It was also argued that the grievor was relatively equal to Mr. Fisher and, as the senior candidate, he should have been awarded the job. As the hearing proceeded, it become clear during the examination of Mr. Fisher that the union intended to conduct the interview process and the competition before the arbitration board. Counsel for the employer objected to this line of questioning. As a result, the board ruled that the hearing should proceed in two stages. First, the board should determine whether the employer acted improperly in denying the grievor I - 3 ~- an interview, with the onus on the employer to show that it acted properly. If it acted properly, the case would be over. If it acted improperly, the board would have to consider the relative equality of the candidates and the appropriate remedy. (1, ,‘I .,~. ..::.,:: The job posted consisted of several duties. For 45% of the time, or about five months of the year, the employee would act as Assistant Park Superintendent of Rock Point Provincial Park. His duties would include acting as the person in charge during the Superintendent’s - ,absence - for example, on his days off or when he was ill or at departmental meetings. The Assistant’s tasks would include supervising one Clerk and three staff on gate operations, supervising maintenance operations, supervising two wardens for enforcement of the RovInci4 Parks Act, and scheduling casuals. The park has 126 campsites and may have up to several hundred people using it on a summer day. The Superintendent and Assistant have the powers of an OPP officer to enforce the Liquor Licmce Act and Highway Traffic Act. For the remaining seven months of the year, the Outdoor Resource Technician would perform fish and wildlife duties, including administration of written and practical tests in the hunter safety program and administering the district controlled deer hunts by conducting a draw to select among applicants and establishing check stations during the hunts. He would also participate in a variety of technical projects: conducting creel surveys, conducting aerial surveys, assisting conservation officers on enforcement patrol, operating check stations, and assisting in a trails program. Other duties might include fire and flood control. Qualifications were stated as follows: 1. 2. 3. 4. * 5. 6. Tech&al skiUs and knowledge normally attained through the successful completion of a diploma course in resource management from a community college or equivalent. A sound working knowledge of provincial parks policies and operations normally attained through progressive experience in a provincial parks program. A sourid working knowledge of fish and wildlife manage- ment programs and pdicies normally attained through work experience in several areas of the program. Proven abllty to communicate both orally and in miting and to deal tactfulIy with the public. Demonstrated administrative and supervisory skiUs. Valid MTC drivers licence. Following the list of qualifications was the following statement: NO% In your application and resume , please ensure that you indicate specificaUy how your sklb, knowledge and experience relate to the qu3lifications listed above. Paul Drysdale, the Outdoor Recreation Supervisor in the Fonthill Office, screened the 52 applications received. He had written the job specification for the Outdoor Resource Technician job in December, 1981 when the position was created. The posting occurred February 26, 1982. Of the 52 applications, only three were from permanent staff members. The grievor was one of these three, while Mr. Fisher was then on the unclassified staff and, therefore, had no seniority. -5- Mr. Drysdale decided to screen the applications, so as to interview eight or nine candidates. He set up an evaluation system whereby applicants were rated zero to five for each of the qualifications quoted above. Minimum requirements were set for each qualification - for example, the parks knowledge qualification required, at a minimum, experience in two job functions; similarly, two job functions in fish and wildlife were needed. A person with one or zero for a criterion was not qualified in that respect under Mr. Drysdale’s system. The grievor is employed as a Resource Technician III in Engineering Services in the Wawa District Office. He has never worked in a pro&cial park, although he does have contact with the public who camp on Crown lands. Between 1974 and 1978, he worked in the Lands Services Branch. For three years during that’ period he acted as a Deputy Conservation Officer, enforcing fish and wildlife regulations and patrolling provincial parks on peak weekends. He had instructed hunter safety courses on his own time for three years prior to 1978 and helped Conservation Officers administer the exams. When rating the griever’s qualifications, Mi. Drysdale gave him four points for technical skills and knowledge, the first criterion. The grievor graduated from Sir Sandford Fleming Community College in 1974 as a Forest Technician, following a two year course. As well, he had 100 months of work experience. h+r. Fisher receive five points, as he had a three year course from Sir Sandford Fleming, and he specialized in fish and I ,,. - 6 - ” wildlife in his second and third years. He also had 34 months experience. When it came to “a sound working knowledge of provincial parks policies and operations ‘I, the grievor received a rating of one. While he had some courses in parks work (Parks Certificate Course, 1979; Parks Enforcement Course, 1980; Provincial Offences Seminar, 1980), he had never worked in a provincial park. Mr. Drysdale felt that Crown land camping experience was not relevant, as the Ministry has little control over or contact with such campers, except to enforce anti-littering laws a&J to engage in public relations functions. In contrast, an employee working in a park would be aware of parks procedures and the enforcement of The Liquor Licence Act and Highway Traffic Act. Mr. Fisher had served as Assistant Superintendent at Rock Point, as a casual, from April 1 to December 31, 1981. He had also worked in the Park Preserves Program three seasons, dealing with the public and doing maintenance. He, therefore, received a rating of four. Qualification three required sound working knowledge of fish and wildlife management programs and policies. Mr. Drysdale was looking for a variety of experience. The grievor received a grade of two, as he had worked in a deer yard for three months, worked on a moose check station 10 days, and acted as a Deputy Conservation Officer for three years, and he had courses in Law Enforcement and Provincial Offences. Mr. Fisher received four because of his courses (Deer Aging and Checking, Deputy Conservation Officer, scuba diving) and the breadth of his experience in both fish and wildlife programs and enforcement. He had participated in numerous programs including creel surveys and check stations. The griever’s communication skills and tact in dealing with the public were rated three, based upon his experience in lands, the operation of trails programs, and public access efforts. Mr. Fisher received four, because he had daily dealings with the public in his parks work. i Both received four on administrative and supervisory skills, - because of their job history, and both received five because of their driver’s licence. lMr. Drysdale noted that he had some difficulty in evaluating some of the griever’s experience, especially the work as. Deputy Conservation Officer and his communication skills, because of the lack of elaboration in the application. The work of a Deputy Conservation Officer varies considerably from individual to individual. The total points for the grievor were 19; 26 for (Mr. Fisher. Five applicants were interviewed, and all had 23 to 26. The grievor, tied with eight others at 19, stood behind 16 other applicants. Did the employer act improperly, then, in failing to interview the grievor? In conducting a job competition, an employer can not be required to interview all the applicants, regardless of their suitability. -8- When numerous applications come forward, as is common in the public service with its large number of employees, questions of efficiency and cost may require some screening of applications. At times, only those meeting the basic qualifications may be considered. Of course, these qualifications must be reasonably related to the job in question. At other times, the pool of apparently qualified applicants may be so large that .a ranking of the most qualified will have to occur and only those with the highest scores will be called for an interview and further consideration. The ranking, again, must be reasonable, in the sense that each candidate’s qualifications are-reasonably evaluated; Failure to interview an employee with greater seniority than the successful candidate may well lead to a grievance, with the senior employee arguing that he is relatively equal. After considering the employer’s actions here, we have concluded that the employer acted reasonably in deciding not to calf Mr. Bore&i for an interview. Mr. Drysdale, in testimony, demonstrated the reasonableness of the qualifications specified for the job to be performed. Almost half of the job would be spent as an Assistant Park Superintendent, and it is obvious that a person in charge or second in command of a provincial park would need to know the applicable legislation, as well as the procedures operative in parks. These employees have the powers of peace officers to enforce certain laws in the parks. Mr. Drysdale mentioned that there are two binders of procedures applicable to parks, covering items such as the taking of water samples, issuing refunds, capital work, and operating procedures. He felt that it was -9- important to know these procedures to ensure quality control and safe operations. With regard to the other parts of the job, Mr. Drysdale stressed the need for both fish and wildlife knowledge. The location of the district office in Niagara’ resulted in the need for both fish and wildlife conservation programs. _ The griever, Mr. Borecki, was lacking in both parks knowledge and fisheries experience. His career pattern had led him into the Lands Service and Engineering Branches, while the job sought in this competition was in Parks, His career experience had given him no exposure to parks operation, and he had gained knowledge only through courses. He had no knowledge of special parks procedure, as evidenced by his answer to a question about parks policy. He replied that parks policy is vague, “just providing a service. ” Knowledge of parks procedure is an important part of the job, and the grievor did not meet this qualification. Counsel for the grievor suggested that~ there was some unfairness in giving ,Mr. Fisher the job. Inevitably ,Mr. Fisher had parks experience, because he had filled the position already. While Mr. Borecki is admittedly at some disadvantage because of this fact, that results from career pattern. There is no apparent unfairness in requiring parks experience for the job, and (Mr. Borecki did not have it. ? . ‘. ‘1: b I - IO - In addition, Mr. Borecki fell behind in the range of his experience in fish and wildlife management. True, he had worked at a deer yard and on a check station and he had taught hunter safety, but all of this experience was several years in the past, the last time being in 1978. There was no fisheries experience, and the number of wildlife tasks which he had performed was limited. He did not elaborate on his Deputy Conservation’ Officer experience in his application, although he was cautioned to do so. As a result, Mr. Drysdale could not evaluate that experience as well as he might. Other experience which the grievor had, * such as the trails and canoe programs, was of little interest in Niagara, where there were no equivalent programs. Overall, the griever’s qualifications and experience appear to have been considered fairly and given weight. While members of this arbitration board might have added a point or two to the rating of some qualifications, the grievor would st~ill fail to meet the cut off point for an interview. More significantly, he would still lack the knowledge of parks policies and procedures which is an important requirement for the job. His course work, while of some value, needed some practical experience to allow him to meet the basic qualifications, while his Crown lands experience was not analogous to park operations. Overall, we find that the employer acted properly. There ls no evidence of discrimination either against the grievor or in favour of IMr. Fisher. - I1 - The decision in this case is not meant to indicate that ,Mr. Bore&i is not a good and valuable employee, for, as Resource Technician III, he clearly bears a great deal’of responsibility over programs and staff. He faces a difficulty here, because he is trying to change fields, and he has run up against a common dilemna - experience in the new field is demanded, yet the only way to obtain that experience is to work in the field. Mr. Fisher had the good fortune to have done so as a member of the unclassified staff and, therefore, he met the threshold qualification. For these reasons, the grievance is dismissed. DATED at Toronto, Ontario this 18th day of October, 1982. K. Swinton Vice Chairman V I. Thomson .Clember N. Cazzola Member /lb i.