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HomeMy WebLinkAbout1982-0327.Barnard.83-02-15IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: c For the Employer: T. W. Wheeler Classification and Pay Administration Section Personnel Branch Ministry of Transportation and Communications Hearina: \ OPSEU (D. G. Barnard) Grievor -And - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer J. w. Samuels T. Traves M. Gibb Vice Chairman Member Member L. Stevens Grievance/Classification Officer Ontario Public Service Employees Union November 17. 1982 - 2 - Ihe griever iz e!??loyed 5y the Miniscry OF ?rzn~por:~:icn 2nd Communications 2s 2 Safety Officer 2 in Kenor?. 14. e ,-6-CC 0 7 - d r::s: he is improperly classified and should be a "s2fefy ~.~St.~~J~tiC~2~ Officer 3”. At our hearing on November 17, the parties a&reed (Exhibit 11) that we would deal only with the preliminary objection by the Ministry that this Zoard is not properly seized of the miatcer for two reasons-- 2. because the grievor failed to comply with the time limits in the Collective Agreement; and b. because the grievance was withdrawn, and the grievor is estopped from carrying on with the matter. The facts were not in dispute, concerning this prelininar: obje ctlon. The grievor filed his first grievance on February i, 1982 (Exhibit 1). The Ministry’s first response came on Febrluzry iC, when Mr. Gaebel, the griever’s immediate supervisor, wrote to szy that he would review the grievance and would make his reply by March 31, 1982 (Exhibit 2). Unknown to the griever, this “review” involved a reevaluation of the griever’s Position Speeificzticn. On March 31, the grievor and. Mr. Gaebel were called into the office of Mr. C. Barty, Head of the Regional Personnel Cffice in the Northwestern Region. When Mr. Harty learned thit the griever had not yet seen his revised Position Specification, he made a co?y fcr the griever anti the meeting adjourned on the untierstanding Lhat :ke griever would review the doccmen: and the three ,zeo;le wou~c’ ;zeet :?e next mcrning to discuss it. The nex: mornir.5. the griejlor -3- reported that he still had not had an opportunity to read the revised Position Specification. The meeting adjourned, 2nd Mr. Gaebel wrote to the grievor that day to say that the grievance w2s denied (Exhibit 3). The grievor told his Union Representative to proceed further with the matter, but this representative forgot about it. Later,.when the griever asked his representative what had happened, the man said it had slipped his mind, but they would file another grievance. -Which they did on May 19, 1982 (Exhibit li It has been the Ministry’s consistent view since the filing of this second grie‘Jance that it is the same grievance as the first one, which was withdrawn, and therefore the grievance is out of time (Exhibits 5, 8 and 9). i. On June 22, 1982, before receiving the reply of the Deputy Minister to the second stage of the second grievance, the Union wrote to this Board for a hearing (Exhibit 7). 27.3.2 of be slubmit after the the essence of the Ministry’s position is that Article Coliective Agreement provides that the grievance must o the Deputy Minister at the second stage se,Jen days ted t reply to Stage One. The reply here came on April 1, and the griever did not submit the grievance to the Deputy Minister within the seven days. Article 27.9 provides that failure to meet a time limit means that the gries-ante is deemed to be withdrawn. Thus the time limit is mandatory and the grievance has been withd.rac;n. Xaving been withdrawn, the grievance cannot be resubmitted, becauee t.9e grievor is estopped from doing this. We 2ccept this line of i~g;~e~;\ ir. f>Jll. The _. * 7‘ , - 4 - ,r 0 However, the Collective Agreement is not the cnly source of tne griever's righ; to come to this Board. Section i8(2 of the Crown Employees Collective Bargaining Act, R.S.O. 19e0, c. 108, provities : In addition to any other rights of grievance under a collective agreement, an employee claiming, (a) that his position has been improperly classified; . . . . . . . . . . . may process such matter in accordance with the grievance procedure provided in the collective agreement, and failing final determination under such procedure the matter may be processed in accordance with the procedure for final determination appli- cable under section 19. (emphasis added) Ther., section l? sees on to deal wit h arbitration before this Board. In Keeling, GSB 45178, this Board reviewed the meaning of these provisions at length. In short, it was held that the procedure set cut in the Act is clearly in additionto any procedure in the Collective Agreement. tience, an employee who missed a time limit under the Agreement, could still succeed in getting to arbi:ration under the Act. The decision was appealed to the Supreme Court of Ontario, Divisional Court, and was upheld in a decision released on April 14, 1980. The Court held that it should confine itself to deciding whether or net the award was patently unreasonable, an2 -he award was not patently unreasonable. In our view, the award was correct. i ,: - 5 - catlon, appraisal conirary to governing principles 2nd standards: and di.scipline or discharge without ius: ca.use. The .4cc provides no time limitation. if a griever is time-barred from proceeding under tie Collective Agreement, he may proceed under the Act, if his case involves a matter covered by section 18(2). The reason for this legislative provision seems to be clear--to ensure a sroper resolution of the real differences between the parties on these fundamental issues. In our case, the rationale for this legislation is ful- filled. The grievor’ s difference with the Ministry is on-going. it makes good sense for it to be dealt with once and for all by this 3oard. As well, there are other employees who will be affected by OCR lecision, and any cne of them might grieve the classification. Indeed, while it is not a reason for our decision, the L’nion did indicate that there were a number of others who wanted to grieve (for example, Exhibit 10). In conclusion, we find that the grievance is properly before us, 2r!d we will set a date to hear evidence and argi?ment op. the s u 5 s t an ,c e . Done at London, Ontario, thcis 7. Tre.:es, Member , M. Gibb, Member 1. 1 L. 3. ?I . 5. 5. 7. 8. C ,. 10. 11. Reply, Cebrcary 19, 19&2 Final reply, April 1: 1982 Grievance Form, May 19, 1982 Reply! June 4, 1982 (the one stibmitted to this 5oardj Stage Two Letter from J. Spalding, Union June 4, 1982 Staff Represetitaiivf Application by the Union to this Board, J une 22, 1982 Stage Two re?ly from the Deputy Minister, June 28, 19E2 Letter to this Board re preliminary objection, July 5, 1982 Letter from Mr. Fogue, undated Letter re our hearing, November @, 1982 i '331/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEESCOLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Griever: For the Employer: Hearings: OPSEIJ (Dr. Peter B. Loebel) Griever - and - - The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing) R. L. Verity, Q c. Vice Chairman S. R. Hennessy '~.' Member _ F. T. Collict Member Employer J. Miko Grievance Officer Ontario.Public Service Employees Union A. P. Tarasuk Counsel Central Ontario.Industrial Relations Institute November 4, 1982 December 17, 1982 January 7, 1983 - 2 - DECISION In a Grievance dated April 8th, 1982, the Grievor, Dr. Peter Loebel, alleges that he, was improperly denied the position of Community Renewal Dfficer (Classification - Community Planner 3) which had been posted on February 5th, 1982 and subsequently advertised by the Ministry of Municipal Affairs and Housing. By way of settlement, he seeks appointment to the position with pay retroactive to February lZth, 1982. At the time of the posting in question, the Grievor's position of Child Abuse Program Con~sultant with the Ministry of Community and Soci,.a-I Services had been declared surplus to the Ministry's needs. Accordingly, the Grievor became a surplus employee on February 12th, 1982. On February 15th, the Grievor exercised his surplus employee preferential rights pursuant to Article 24.2.3 of the Collective Agreement and advised the Ministry of Municipal Affairs and Housing that he wanted the job of Community Renewal Officer. Accordingly, the posting was effectiv.ely suspended and the Grievor was granted an.interview to determine whether he was "qualified to perform the work" within the Imeaning of. Article 24.2.3 of the C.ollective Agreement. A three person selection board interviewed the Grievor and concluded that he was not qualified. The position in question was subsequently frilled in accordance with the normal posting procedures. ::. - 3 - The Grievor has an impressive academic background to his credit having graduated from McGill University with a Bachelor of Arts degree in 1953 (English and History). He subsequently obtained a Master of Social Work degree from the same University in 1957. Dr. Loebel later received a Doctorate of Social Work from the University of Toronto in 1976 for a Thesis entitled "The Municipal Planning Process -- Implications for Social Welfare". In the private sector, Dr.~ Loebel was a consultant to the Social Planning Council of Metropolitan Toronto from 1961 to 1971; a consultant with the Borough of York Planning Board from 1971 to 1972; a consultant with Planning Boards in _ Etobicoke, Toronto and York; a teaching assistant (research) at the University of Toronto Faculty of Social Work from-1972 to 1973; a part-time lecturer and tutor (introduction to social services) at York University from 1968 to 1972; and a part-time lecturer (community organization) at Ryerson Polytechnical Institute, ,.. Social Services Department 1964 to 1967. Dr. Loebel became Senior Planner and Manager, Community Planning Division of the Ministry of Housing from 1973 to 1977. He was Manager, Developme,nt and Support from November 1973 to January, 1975 and from there he moved to the local Planning Branch of the Ministry until Decembe.r of 1977. His persona 1 (Exhibit 5) states that: Policy resume - 4 - "Responsibilities entailed the development of guidelines for personal social services policies and official p.lans. Other responsibilities included a review and ana7ysis of public participation undertaken in the preparation of regional official plans, the preparation of guide- lines for public participation in neighbourhood improvement (undertaken jointly with the Ministry of Culture and Recreation), the design of a descriptive study~ of coordinated human services and land-use planning, the organization of a seminar to explore ,the feasibility of shared ~curriculum for the professional training of urban planners and social workers in the social planning sequence and consultation to an interministerial working group on group homes." In January of 1978, Dr. Loebel changed Ministries and began working as 'a Consultant wi,th the Ministry of Community and Social Services. His responsibilities inc'luded providing consulting services on behalf of the Ministry's Child Abuse Program to community agencies in Northern Ontario including Children's Aid Societies, Hospitals, Police Departments, School Boards, Public Health Units and Area Offices of the Ministry. In his persona 1 resume referred to above,~ Dr. Loebe 1 states: "I have a spec social condit impose stress opportuni,ties components of alized interest in assessing ons in the environment that upon families and in encouragi‘ng to coordinate physical and social planning." zation Dr. Loebel's position with the Child Abuse Unit was terminated as a result of the Ministry's policy of decentrali of services in favour of local governments of the roles previously assumed buy provincial Consultants. “Mi:n Mun and the Grievor sought in the instant matter was advert follows (Exhibit 6): stry of cipal Affairs Ho u s i n.g - 5 - The position of Community Renewal Officer which ised as PROMOTIONAL OPPORTUNITY. Position Title: Community Renewal Classification: Community Officer Planner 3 Division: Plans Administration Salary Range: $25,200-$29,917 p.a. Branch Community Renewal Schedule: 6 Branch File Number: MAH-23 Position Summary Open Required by the Community Renewal Branch to assume responsibility promotion and implementation of community renewal programs in the region of the province. Responsi.bilities include: provi'bing adv information,& local governments regarding community renewal prog for the assigned ice and rams, available funding and program criteria; analyzing project proposals for warded by local governments and reporting on their acceptability to sen staff; managing complex community renewal projects by monitoring their progress to ensure funds are sent according to established criteria and ior providing advice regarding Branch programs and allocation of funds for Managemen t Board and Senior Ministry management,~. Some travel is required. Location: Toronto This competition will al~so be advertised in Topical/Job Mar Minimum Qualifications Degree in community planning or a related discipline with eligibility for membe.rship in the Canadian Institute of Planners; good knowledge of the provincial role, programs and policies related to community renewal; related experience dealing with municipal councils and officials preferred; - 6 - good oral and written communication skills. Less qualifi~ed applicants may be considered on an underfill-basis in the absence of suitably qualified candidates. Equality of Opportunity for Employment Written applications are to be received no later than February 19, 1982 in the Ministry of Municipal Affairs and Housing, Human Resources Branch, 60 Bloor St., W.,.3rd Floor, Toronto, Ontario M4W 3K7. Posting Date: February 5, 1982" In order to receive the appointment, the Grievor had to establish that he was "qualified to perform the job" within the meaning of Article 24.2.3 of the Parties' Collective Agreement. That Article reads: "24.2 3 Where an employee has not been assigned in ..,accordance with subsec~tions 24.2.1lor 24.2.2, he shall be assigned on the basis of his seniority to a vacancy in another minist'ry within a forty (40) kilometer radius of his headquarte,rs provided he is qualified to perform the work and the salary maximum of the vacancy is not greater than three per- cent (3%) above nor twenty percent (20%) below the maximum salary of his classification; as follows: - a vacancy which is in the same class or position as the employee's class or position; - a vacancy in a class or position in which the employee has served during his current term of continuous service; or . . .i i_.__ -%y+. - another vacancy." As indica L L the Ministry of Mun i 15th that he wanted ed previ ously, .the Grievor advised cipal Af fairs and Housing on February the position in question. On the following day, the Grievor telephoned Peter Boles, the Manager of the Program Operations Section of~the Community Renewal Branch of the Ministry. Mr. Bol.es spoke at some length with the Grievor in that telephone conversati on and answered questions posed by the Grievor. At the Gri evor's request, Mr.'Boles made available a packet of written information on all programs offered by the Branch (Exhibit 1.6), which was entitled Community Improvement Resources Kit. That packet of materials contained book'l~e'ts entitled "Ontario Downtown Revitalization Program - Administration Guide"; "Main Street Revitalization - Program Guidelines"; "Main Street Revitalization - Program-Application"; "Ontario Neighbourhood Improvement Program -~ Program Administration Outline". In addition, the written materials given to the Grievor included an envelope with contents entitled "Business Improvement Areas" and four separate pamphlets;:entitled "Outline" which briefly describe Ontario Downtown Revital.jzation Program, .Community Renewal Branch, Ontario Main Street Revitalization Program, and Ontario Neighbourhood Improvement Program. -a- On Feb~ruary 23rd, ,the Grievor was interviewed by a three member panel consisting of Peter Bol es, referred to above; Miss Sally Hannon, Senio~r Community R enewal .Officer; and Mrs. Paula Lytwyn, Ministry Personnel Officer. A list of questions and antic.ipated answers was prepared by the selection board (Exhibit 14). These questions various members of the selection board and sub- were posed by same questions were asked of all candidates who sequently the were granted questions and interviews as a resu 1 anticipated answers t of the posting. The were as follows: "INTERVIEW DEMONSTRATED.INITIATIVE AND MOTIVATION , 1. Describe your previous experience with particular attention to the requirements 'of this position. , a) specific experience with each of"our programs b) experience with,the government programs field delivery of other ,ience of the Plann c) knowledge and exper and processes ing Act _.~. (Confirm'degree and CIP 'membership) 2 (a) Why are you interested in this .position? a) career development b) emphasis on communication/personal skills - clarity of expression - organization of thought - ease of manner - adaptability - 9 - 2 (b) What are your career goals, and how will this position help you to achieve them? a) Emphasis on ~cdmmunication!personal skills - clarity of expression - organization of thought i' ease of manner - adaptability 3. What is your concept of this position and what are the most important aspects..of the position as you see them? a) Promotion of community renewal programs and activities; b) Program delivery within assigned territory; c) Effective liaison with clients (i.e., municipal-' ities); d) Report to serrior management; e). Monitor effective implementation of program. -,At this point, Peter Boles describes position (t-e: .i. classification, area of,responsibility, CRB Programs, reporting relationship, etc.) TECHNICAL KNOWLEDGE~ RE PROGRAMS 4. Can you describe ONIP in terms of program objectives, eligibility criteria and prog~ram operation (legislative authority). a) Program Objectives _ - to encourage and assist municipalities in -.implementing a municipal involvement strategy; - to improve conditions in older deteriorating but, potentially stable and predominantly residential neighbourhoods occupied by low and moderate.income households; - to assist municipalities in improving municipal services, public utilities and social] and recreational facilities in eligible residential neighbourhoods; - 10 - - to encourage investment in the rehabilitat of existing housing stock and new infill development by private and/or socially ass housing; on sted - to encourage energy conservation through energy efficient land use. b) Municipal and neighbourhood eligibility criteria (see attached). C) Program Operation Then redevelopment legislation: - Section 22(2) Redevelopment Area - Section 22(5) Redevelopment Plan - Section 22(3) Land Acquisition - Section 24 - Agreement between Province and Municipality - Management Board Report 5a) Can you describe the B.I.A. program and the involvement of this Branch in its administration. a) Section 217 of the Mu~nicipal Act provides for the designation of a retailing area as a Business Improvement Area for the purpose of promotion and the improvement of municipally owned land,beyond what the municipality would normally do. A Board of Management operates the BIA and a tax is imposed on all persons paying business tax within the designated area which is used for promotion and beautification. b) Community Renewal Branch is responsible for the administration of the Business Improvement Area Legislation and the promotion of the concept. 5b) Can you describe how the Main Street Revitalization Program and the Business Improvement Area Program .-.inter-relate. a) To participate in the Main St~reet Revitalization Program a municipality must have a Business Improvement Area, a population of less than 35,000 and an Official Plan. b) The purpose of the Main Street‘Revitalization Program is to assist in the implementation of a Business Improvement Area Plan in smaller and medium sized communities. - 11 - 5c) Do you feel that the Main Street Revitalization Program can be effectively meeting its objectives? If so why? Because it was designed to assist i of a BIA plan thereby providing up Business Improvement Areas. Other acceptable answer. If not, why not? n the implementation front funding to legisla tion inuity of There are oroblems with the BIA concept and which makes it difficult to ensure the cant th,e program. The program would be better integrated with planning process. There is insufficient funding. the municipal The legislation is inflexible. Other acceptable answer. 6. Let us assume that you have prepared a report for the Minister in which you make a series of recommendations on po~licy issues related to the Ontario Downtown Revitalization Program. Upon review, the Minister first rejects your recommendations, and secondly adopts a positibn which you specifically advised against. How would you respond? a) First assess by discussion with Senior Planner .and/or Manager whether there was a clear under-~~. standing of the facts. If not, determine an alternative imeans of addressing then matter again. . b) Secondly, accept the Minister's decision. c) The Minister has the ultimate decision-mak i authority and as a Ci;vil Servant~this must recognized. 7. Let us assume that in reviewing an application for funding~ un,der the terms of the Ontario Neighbourhood Improvement Program, you identify a proposed project which. is not eligible under the terms of the program. What would you do? - 12 - a) Disc.uss problem with b) Contact municipality details and gain addi Advise that project i Senior Planner; by phone to discuss tional information. s ineligible; cl Offer to meet with municipal officials and/or Council,before putting concerns in writing;. d) Prepare letter for Directorls signature advising that project is ineligible and .' reasons why and ask for revised submission. a. In analyzing an application for funding under the ONIP Program you conclude that 80% of the funding will be expended on -hard services such as water, sewers, sidewalks, but the application shows that there is a desperate need for social and recreational facilities. How would you respond? a) Application meets requirement for SO/20 split under program criteria, therefore, proposal is eligible. .b) May choose to discuss concerns with municipal official to determine possible problems and public reaction. 9.~(~ Do you feel that the activities of the Ministry in the general area of community renewal or improvement will change over the next five years? If so, how? a) Economic constraint means less funding available at Federal/Provincial/Munic.ipal levels; b) New Planning Act requires Commun Strategy therefore emphasis will delivery to promotion; ity Improvement change from cl New program initiatives will change to provide flexibility in meeting needs at municipal level; d) New areas of interest include industrial area revitalization, commercial area improvements, umbrella package of programs. - 13 - ANALYTICAL AND ORGANIZATION SKILLS 10: How would you personally go about organizing your workload under circumstances where you are requi'red to u.ndertake a number of long and short term projects~with differing priorities and deadlines? a) Personal system with ability to set and meet priorities deadlines and to discuss with supervisor if and when necessary. lla) What is the most difficult p 1 problem you have dealt with? (Identify) anning and/or renewal lib) How did you resolve this problem, an.d what did you learn from it? a) Good judgement and well-developed~~a6alytical abilities demonstrated. Indication that lesson was learned from problem. OTHER CONSIDERATIONS Availabi~lity Confirm working hours - willingness to work overtime Valid driver's license Confirm salary ($25,200 - 29,91Z) and explain underf References illing Approximate date successful candidates to be notified Attendance" All three members~of the selection board gave evidence at the Hearing. Each member made extensive notes in connection "L, with the Grievor's answers at the 'interview which were subsequently entered as exhibits at the Hearing. Mrs. Lytwyn's intervi.ew evaluation of the Grievor was Exhibit 13; Miss Hannon's notes Exhibit 1'9; and Peter Bole's notes Exhibit 20. :’ i :, - 14 - The evidence is clear that no member board determined that the Grievor was quali the job. of the selection fied to perform Peter Boles testified at the'Me.aring that during the interview the Grievor "did not demonstrate a clear unders by the .genera anding,~...or':necessary knowledge of the programs offered branch". I+ir. Boles stated the Grievor's knowledge ly was sketchy and that he rambled~ in his responses and brought in extraneous information. not related to the questions posed. Niss Hannon stated that the Grievor "had no clear understanding of the functions of the position", that "he didn't know the legislation" and that in general "he was unable to answer the Guestions". In addition, she illustrated numerous areas where incorrect answers had been gi.ven by the Grievor. Nrs. Lytv:yn testified that the Grievor's responses contained no detail of any Ministry program and conveyed the indication that "the Grievor didn't understand the requirements of the position". Dr..Loebel in which the Griever failed to a~,chieve of 50:. Peter Bo les was the most generous in hi;s allocation in a.:2 rding the Griever 49 marks in to In the result, each memb'er assigned a final mark to. even a mark marking tal. r’ - 15 - Mrs. Lytwyn subsequently prep'ared a memo for the Corporate Staffing Officer of the~Civi1 Service Commission dated February 26th, 1982 (Exhibit 15). That memorandum reads as follows "MEMORANDUM TO:~ Mr. T. Clarke Date: February 26, 1982 Corporate Staffing Officer Civil Service Commission Re: Mr. Peter Loebel Surplus Employee (Released effective Feb~ruary 12,. 1982) We request approval to proceed with recruitment of the Community Renewal Officer vacancy in our Communi Renewal Branch. After interviewing Mr. Loebel on Tuesday, February 23, 1982, the selection board determined that he was not qualified to perform the work for the following reasons: 1.~ Mr. Loebel's academic bac~kground and practical experience are oriented towards social work/planning and social policy development ,~rather than 'physical' land use planning as is required for this position. In add.ition, he has very little experience dealing with municipalities, municipal councils and boards. There was no indication of any practical experience~negotiating with municipalities on politically sensitive planning issues. 2. He lacks technical knowledge of the community renewal programs, their basic objectives, -criteria and/or legislative provisions. His responses to the question~s posed in this area were. vague and often confused. -- tY 3. He did not demonstrate the ability to practically apply and ie.1at.e program objectives- and criteria. The board was surprised by his poor responses, e~specially in that he was given a complete information package a week previously (the package is enclosed for your information). The material clearly outlines the basic responses the questions were designed to draw out. - 16 - 4. Mr. Loebel had difficulty presenting his responses in a logical and organized fashion. He became confused in explaining the various programs and did not have a clear idea of the intent of the programs and/or the role the community renewal officer plays iti the delivery of those programs. 5. In addition, the board was concerned that his emphasis on social planning and social issues woul'd be projected to client groups when the Ministry's emphasis is in 'ohvsical' land use planning. It was felt this could present difficulties for the unit. This concern was raised during the interview and although he indicated he would separate his professional feelings from that of his role as a Civil Servant, the pattern of interview indicated that such a separation might be extremely difficult for him. I have included a copy of the selection criteria and questions for your information~. If there are any questions, please do not hesitate to contact me. Your prompt attention to this matter would be greatly appreciated. 'P. Lytwyn' -P. Lytwyn Personnel Officer Human Resources Branch Ministry of ,Municipal Affairs and Housing 3rd Floor, 60 Bloor St. W. Toronto, Ontario M4W 3K7 965-9402 Enclosures /mcd" Subsequently Dr. Loebel requested a second meeting with the selection board to discuss his failure to receive the appointment. According to the Grievor's evidence., that meeting - 17 - took place at the end of March or at the beginning of April of 1982. It was the Grievor's evidence that three reasons were advanced by the selection board for his rejection for the position in question: 1) The determination he wasn't qualified; 2)~ Poor performance at the interview; 3) A desire to employ a person with direc experience with the programs. t On behalf of the Grievor, Ms. Miko alleged that the Grievor possessed the minimum qualifications for the position and in spite of his poor performance at the interview he should have received the appointment.. She argued that the Grievor's personal suitability was being judged andnot his qualifications. Ms. Miko argued strongly that the selection committee expectations were too high in the determination of the qualifications of a surplus employee. On behalf of the Ministry, Mr. Tarasuk argued that in dealing with surplus employees under At-title 24.2.3, a successful applicant must demonstrate "present ability" in the exercise of his preferential rights ove,r other employees. Mr. Tarasuk noted that there was no provision within the wording of Article 24.2.3 for a trial period or a familiarization peri'od.~for an applicant to .become qualified. It was the Ministry position that Dr. Loebel's performance at the interview .demon- strated the need for extensive training ~requirements. - 18 - The sole issue in the instant Grievance iswhether the Grievor was qualified to perform the work within the meaning of Article 24.2.3. The Grievor has the right to be awarded the job if he is deemed qualified. As stated in the Award of Vice-Chairman Samuels in OPSEU (J. Heginbottom) and Ministry of Revenue, 6~47181 at pages 19 and 20: the 1 trial word "The grievor has the right to be assigned to a position if'he fulfils the conditions under the collective agreement. He doesn' have to compete for the job..... Article 24.2.3 makes clear that the grievor is to be assigned to a position if he is qualified to perform the work. This is. an absolute provision. The Grievor is not entitled only to a fair hearing. He is to get the position if he can do the work." It should be noted that there is no provision in anguage of Article 24.2.3 for a training period, or .'. period or familiarization period. In addition, the' "qualified" appears fin the terminology of the Article without elaboration. In our view, the words "qualified to perform the work" must be interpreted broadly if we are t.o g meaning to the provisions of the Article. "Qua1 the work" must relate to the requirements of the In the instant Grievance, qualifi-cations include ve any real fied to perform job in question. educational background; knowledge of the functions of the Community Renewal Branch, the Min.istry and government generally; knowledge of all, relevant legislation; knowledge of the contents, objectives and D ,3 ‘, . . - 19 - ,i. eligibility requirements of al 1 specifi the~Branch; related experience dealing and Municipal Officials; and good oral skills. c programs offered by with Municipal Councils and written communication The above test appears to be in line with arbitral precedents of the Grievance Settlement Board in.related although not identical Collective Agreement interpretations -- See OLBEU (R. Sabharwal) and Liquor Control Board of Ontario, 322/82 (McLa,ren) and OPSEU (Gerald Simard) and Ministry of Community and Social Services, 33/82 (Roberts). The determination which this Board must make is essentially a factual determination. Under the test set out above, the Grievor would achieve mixed results. Undoubtedly ., his educational background is more than adequate in what we deem to be a related discipline. Similarly, the Grievor has a good general knowledge of government by virtue of his 8 years experience with two separate Ministries. The evidence is clear that Dr. Loebel had adequate experience in dealing with ".;.,...' Municipal Officials and Nunicipal Councils. Also, in spite of considerable evidence to the contrary,:we are of the opinion that the Grievor's 'oral communication skills are more than adequate. Similarly there can be no doubt that his written communication skills are well above average. ? i” :, -2o- - ..’ On the other hand, Dr. Loebel's knowledge of the details of the specific programs offered by the Community,. Renewal Branch and the enabling legisl-ation appears on the ., evidence to have been' less. than satisfactory. In particulaS, the evidence is clear that his knowledge. of the contents, objectives and eligibility requirements of the branch programs was deficient and inaccurate in many respects. k!e'are not satisfied that Dr. Loebel has the minimum basic requirements of knowledge of the functions of the Community Renewal Branch. This is difficult to understand when the evidence was that the Gri.evor \;'a~ given all written materials on the Branch's programs approximately one b!eek prior to his interview (Exhibit 16). Accordingly, we are unable to find that he \;'a~ qualified to perform the work as contemplated by the terminology of Article 24.2.3. In our view,for the Grievor to have succeeded he must have demonstrated the necessary skills and knowledge to perform at a mini~mal level of competence all of the-functions of the Community Rene\<al Off.icer position. Vice-Chairman Roberts addressed a similar issue in dealing with a surplus employee under krticl'e 24.14.1 in OPSEU (Gerald Simard) and Ministry of Communitv and Social Services~ cited above. Professor Roberts stated at pages 10 and 71 of his kwa'rd: - 21 - "Both counsel at the hearing indicated that under this provision a surplus employee should get the.job in question as long as he can do it. As counsel for the employer stated in his concluding argument, 'The question is, can the grie,vor do the job? We are not looking for the best:‘-We are looking for someone with the minimum qualifications.' It seems to us that the grievor has the minimum qualifications to do the job of Observation and Detention Home Worker 2.~ It does not seem to us that to have the minimum qualifications for this job, the grievor must write English as if he were an Anglophone with a college degree. The Grievor's background as a Supervisor of Juvenil,es 2 gave him sufficient knowledge, skills and experience to perform at a minimum level of competence aT1~ of the functions of an Observation and Detention Home Worker 2 except the communication function. The grievor demonstrated at the hearing that he possessed at least the minimum level of competence that would be needed to qualify him for this position in the area of oral communication. And while the grievor's written communication in English may not approach that of an Anglophone college graduate, there is nothing in the record to indicate that the grievor's skills in this area are so poor as to fall below a minimum level of comoetence." To dete,;rmine if a surplus employee is qualified to perform the work pursuant to Article 24.2.3, the Board accep t Management's argument of "present ab ility" to the extent of minimum competence in all components of the job re,quirements To adopt any higher test of present ability would be to destroy the significance of Article 24.2.3. That Arti.cle has been mutually agreed upon by the Parties to benefit,, .-. surplus employees by affording them certain preferential rights of appointment. Few, if any surplus employees would S - 22 succeed in moving successful1 if t.he accepted test were mor y from one e stringen Ministry to another t than minimum compe tence in all of the major components of the job. Such an interpretation does not mean that a surplus employee must possess skill and knowledge in all activities associated with the position. However, it does mean skills and knowledge of the main components of the ~position. In the subject case, knowledge of the Ministry's objectives, policies and programs are all major components of the position, each of which is essential to a surplus employee to be deemed "qualified to perform the work". -. .The evidence~is clear that Dr. Loebel is a dedicated public servant who has specialized in the social consequences of urban planning. His present predicament as a surplus employee is a direct result of the present provincial restrain program and the decision to terminate certain provincial involvementin child abuse matters. The Grievor's services . ..to the Ministry of Municipal Affairs and Housing could have beenrelevant had not the government made the political decision in 1976 to"involve itself solely in the physical component of planning and to leave to local governments the social consequences ., of urban planning. That political decision by the Ministry was obviously a disappointment to Dr. Loebel, ,but we are,satisfied on the evidence' that he would have put aside his personal views and - 23 - would have conformed to current Ministry policy. The Board is of the opinion that Dr. Loebel was totally honest and forthright in his testimony and he candidly admitted that none of the present Community Renewal Programs were in place when he left the Ministry in January of 1978. For the past 4 ye~ars, the Grievor has served in other Ministries in a position as consultant in the Child Abuse Unit -- a position that bears little similarity to that of a Community Renewal Officer. There is no doubt that Dr. Loebel could have become qualified to perform the job in time. However, that is not the issue before this Board. In the present wording of Article 24.2.3 there is no provision for a familiarization or training period. In addition, the Board quotes Vice-Chai~rman Jolliffe in OPSEU (John M. Eacott) and The Ministry of Educ.ation, 628/80 at page 19 ~of his Award: "Proof is lacking that the selection board was wrong." f :.. -- - 24 - That sta tement applies equally to the instant Grievance. Accord ingly, this Grievance is denied. DATED at Brantford, th,.is 15th day of February, A.D., 1983. R. L. Verity, Q.C. -- Vice-Chairman "I dissent" (to follow) F. T. Collict -- Member Majority award released April 19, 1983 6: 3200 6: 3340 6: 3100 DISSENT No. 331/82 I have had the opportunity to read and consider the major- ity's carefully reasoned decision.' I find myself in agreement with most of the findings of the majority but I cannot, with regret, agree with the conclusion that Dr. Loebel has not satisfied the Board that he, "has the minimum basic requirements of knowledge of the functions of the Community Renewal Br&nch." My reason for this position is based on the evidence of the Selection Committee members that they applied the wrong test in assessing whether Dr. Loebel was qualified to perform the work. The Selection Committee were under the erroneous impres- sion (possibly because this was their first experience with article 24.2.3) that they were able to select the best or most qualified candidate instead of the candidate who met the minimum or basic requirements of the job. Their assessment of Dr. Loebel was based on the wrong criteria and as such, in my opinion, seriously prejudiced Dr. Loebel's opportunity to demonstrate his qualifications for the job. The attitude on the part of the Selection Coxmnittee when coupled with the Committee's over emphasis of Dr. Loebel's social planning background (see exhibit 15) and further inaccurate assessments of Dr. Loebel on the other required qualifications (see majority award page 19) requires that, in my respectful submission, the Selection Committee's findings should be set aside. This result leaves us with the question of what to do with Dr. Loebel's application under article 24.2.3. On one hand it can be argued that the matter should be remitted to a differently con- stituted selection committee to assess Dr. Loebel's qualifications 2. 5 1 2. based on the correct test or in the alternative that this Board, after having an opportunity to hear all of the evidence, should determine, pursuant to its jurisdiction under the collective agree- ment and the Crown Employees Collective Bargaining Act whether or not Dr. Loebel met the minimum qualifications. In a normal situation I would support the majority's decision to take the latter course, of action. However, given what I consider to be the unusual circumstances involved in this case I must, albeit, with reluctance, conclude that the error of the Selection Committee concerning the test applied coupled with the Comnittee's over emphasis of Dr. Loebel's social planning background (to the virtual exclusion of his extensive academic and practical experience) seriously prejudiced Dr. Loebel's chances of a fair and impartial assessment as well as this Board's ability to pro- perly assess the evidence presented to it concerning Dr. Loebel's qualifications. Only a complete reconsideration by a new Selection Committee would clear the matter at this stage. In say- ing this I appreciate the problems which such a resolve would bring; however, the employer must bear, in my opinion, the brunt of the blame for the failure of its Selection Committee to be appraised of the correct standard. Dr. Loebel, on the other hand, must accept some responsibility for his presentation. However, because of the serious and basic error of the Committee for justice to be done and seen to be done it is necessary, in my opinion, that a new Selection Committee be reconvened. Therefore I would have remitted the matter to the employer with the direction to convene a differently constituted Selection Committee to reassess Dr. Loebel and have reserved jurisdiction to deal with any matters that might arise out of the implementation of this award. I 3. If I am wrong in this conclusion then based on the evidence presented to this Board and specifically on exhibit 16, I would have found that Dr. Loebel did meet the minimum basic knowledge require-, mats of the programs and policies relating to community renewal. I base this finding on the evidences presented to this Board that the policies and programmes were contained to a great extent in exhibit 16. The evidence showed that there was little if any discretion involved in the application of the existing policies and any new or novel problems were to be referred to higher levels for decision or review. The Conmnmity Renewal Officer's job, in my opinion, called for the application of straightforward and detailed programmes and policies with little discretion. Given Dr. Loebel's impressive academic background and practical experience in government and the private sector the ability to apply these programmes and policies would have simply required a review by Dr. Loebel of this material prior to connnencing his duties. In conclusion then, I would have found that Dr. Loebel met the minimum requirements of the programme and policies relating to community renewal and as such demonstrated the necessary skills to perform at a minimum level of competence on all of the functions of the Community Renewal Officer's position.