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HomeMy WebLinkAbout1987-0212.Fernandes.89-01-05ONiARIO EMPLOY~SDL LA COURONNE C,%xvNEpI OYEES DEL’Oh’TARIO GRIEVANCE C$WdlMISSION DE SElTLEMENT REGLEMENT BOARD DES GRIEFS Before: -- For the Grievor: For the Employer: HEARINGS : IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Bef& THE GRIEVANCE SETTLEMENT BOARD OPSEU (Fernandes) - and - The Crown in Right of Ontario (Ministry of Transportation and Communications) Grievor Employer T. H. Wilson Vice-Chairperson J. Anderson Member M. O’Tool? Member Helen Sharpe COUllSC?l Gowling & Henderson Barristers & Solicitors Donald B. Francis Counsel Vinkler. Filion & Wakely Barristers & Solicitors January 20, 19RR March 21, 1988 . March 22, 198P May 18, 1~988 ., i < DECISION The grievor is a Systems Officer 3 (503) in the Control and Administration Systems section in the Ministry of Transporta- tion and Communications. He grieves that he was unfairly denied a promotion to the position of System Development Specialist at the Systems Officer 4 classification (SO41 as advertised in Competition #TC-179. Specifically, the grievor alleges that he was unfairly denied the opportunity of a promotion to SO4 in that he was not given a reasonable opportunity to attend an interview. In this regard, it is important to note that the grievor was in fact scheduled for an interview but suffered a bout of illness just prior to the interview so that he was unable to attend it. Shortly afterwards he went on a scheduled vacation. Upon returning he was informed that the competition had been com- pleted. He alleges in essence that it was a "rigged" selection process in which a fellow employee - John Dube - was in fact pre- selected by management. Management denies that there was anything wrong with the way the competition was conducted, that John Dube was not a pre-selected favourite and that the grievor has no realistic grounds for complaining. Although the most critical period in terms of the grievor's not receiving an interview took place in December 1986, because the grievor alleges that Dube was pre-selected and so-to-speak put on the fast track, evidence relating to a longer period of time was adduced by both' parties. John Dube ~8s notified of the hearing, . - 2 - attended under summons for the Ministry and testified. The grievor began his employment on March 26, 1973 as a photoyrammedrist. During that period he attended classes at York University where he obtained a B.A. in computer science in 1979. . He was then transferred to programming by the Ministry. In 1982 he was transferred to the Driver System as a systems analyst. In 1984 he was promoted to an SO3 and is currently at the top of that classification. In 1982 he worked on Driver Control which runs from 4 p.m. to 2 a.m. When he was originally on Driver Control there were four people on call on a rotation basis but I from 1983-86 he testified he was the only one on call. Fernandes testified that in 1986 he was the only one in Driver Control and was in fact doing the work of an S04. With regard to the claim that preference was shown to Dube, the grievor testified that Dube was given a desk by a window - something he claimed was reserved for more senior staff, that Dube participated in a committee of senior staff, and that Bert Vervenne, the Manager of Regulation Systems office, (the Branch) told him that Mike Aymer who later became the Head of Control and Administration Systems in December 1986, had recom- mended Dube to an SO4 position and that Dube was being trained for an SO4 position in Driver Control. The grievor also tes- tified to the fact that he was put on the program for stock about that time without being consulted. In his view, Aymer was the management person principally behind Duhe's advancement and influenced Cindy Bernard who in November 19x5 had become the head - 3 - of Control and Administration Systems. The grievor complained about receiving only a "competency" rating for his 1985/86 Performance Report. This was signed by Cindy Bernard and dated June 20, 1986. Rernard had only become the Acting Read of Control and Administration in 1985; The grievor believed that Bernard had spoken to Aymer about him because "word for word she repeated what Aymer had said to Roger Chose," namely, "would it upset me if someone overtook me". It is important to note at this point that Aymer was not and had not yet been in the same section as the grievor. The grievor had worked for Aymer prior to November 1986 for about a half a year in 1983. On July 28, 1986, the grievor wrote a memorandum to, Bert Vervenne who as the Branch Manager was the immediate superior to the section heads. In it the grievor set out his concerns which he had raised in two meetings with Vervenne. He complained, among a number of things, about his recent loss of flex hours, about being removed from the Drivers System to the Stock System and that a junior person (Dube) had been moved into the Drivers System as acting group leader, whom he claimed he had been actively supporting due to his inexperience with that system. He alleged "You claim that your decision is based upon recommendation from a section head, wh,o has had no dealings with the Drivers System." He copied this letter to S. Pillar, the Director, Vervenne's superior. ~ Vervenne also testified ahout both the meetings and the grievor's memorandum. He claimed that the grievor was placed on . - 4 - stock in order to give him experience on the Data Based Language (called IMS) as a kind of on-the-job training. It was not disciplinary. So far as Dube was concerned, he was not an acting group leader - there is no such'thiny. He testified that when he did explain these things,~to the grievor the grievor would not listen. Aymer had nothing to do with it but was in another section. With regard to the loss of flex time privileges, Vervenne stated that was a result of the grievor's missing a target date. However, there was evidence and testimony that meeting the target date was not entirely within the grievor's control. Furthermore, the evidence showed that there was a lack of communication between Bernard and the grievor which con: tributed to the delay. What, however, is clear from the tes- timony is that relations were strained between the grievor ahd his supervisors. On the other hand, there were several openings for the SO4 classification in the competition .a11 of which were not filled with the result that Dube and the'grievor were not competing directly against each other. In the subject competi- tion (1986) there were six vacancies in the S02, SO3 and SO4 levels. There were three actual job openings at the SO4 level. In fact there was a staff shortage and it was an open competi- tion. In effect the issue in this case became in my view whether management conducted an unfair competition for the grievor and in not rescheduling his interview acted unreasonably and thus denied the grievor a fair opportunity. . - 5 - I intend to deal at this point with the grievor's accusations against Aymer that he favoured Dube and pushed him ahead into a senior position. Aymer was the Head of Registration Systems from the fall of 1983 until late November 1986 when he became the Head of Control and Administration Systems where he was the grievor's boss. He is now the Acting Manager Regulation Systems Office (Branch) which provides the driver computer systems for the province. He had been the chairman of the selection panel that promoted the grievor from SO2 to S03. Counsel for the Ministry put to Aymer whether he had ever.made a statement to Ghose.with respect to younger people's moving ahead of him. Aymer's response was "NO, and I wouldn't ask it. It is improper. It makes people feel inadequate particularly during an appraisal interview." He also denied that he was involved in the appraisal of the grievor by Cindy Bernard. At that time, although her position bore a "head" designation, in fact it was only at the AM19 (now is at the AM20 level) and she still reported to Aymer. When she moved from Senior Project Leader Registration System she took the driver photo-licensing work with her for which she was responsible. Dube at that time was working on that area and reporting to Bernard and so also moved in the job functional sense at that time. .When a desk became available in the Control and Administration Systems area, Dube was moved physically. That was the window location. Aymer testified that Dube got that location because there had been a resiqnation and it became available. He testified that most of the senior people - 6 - do sit in window spaces. He had nothing .to do with Dube's getting that location. He denied that he played favourites with Dube. ' Cindy Bernard moved to the Ministry of the Attorney General in August 1986. She testified that she had moved Dube to the window seat in March 1986 when one of the contract consul- tants moved to a different section and thus made a desk available in the Control area. She explained that she removed the grievor from the Driver Release 5 on which he had been working around the end of May 1986. The grievor had complained that it was just coding. She told him that the only alternative was stock which involved ninety per cent in-line transactions in which he had expressed an interest. De Sousa and Dube who were also then working on Driver Release 5 with the grievor remained on that project. Then in June she completed the grievor's Employee Performance Report. She noted: Jess intends to continue to focus his technical, specifically online, training during the next year (message format services IMSVS DC Programming II, Data Communication Concepts). Jess will continue to be assigned progressively more complex programming projects over the next year. Under the heading "Suitability for advancement may be included here, if applicable" "Not applicable at this time". She tes- tified that he did not have the skills for promotion: the other SO3's had qreatkr technical skills. She testified that the grievor's co-worker on stock was unahle to evaluate the qrievor's - 7 - capabilities because the grievor had just been moved to stock. Bernard did not consult with Aymer on the evaluation and she denied ever telling the grievor that he might be passed over for more junior employees. She also denied that Dube was doing the work of a ~senior project leader. Although the evidence shows that there was some rancour between Bernard and the grievor, between the grievor and Vervenne and later between the grievor and Aymer, I am satisfied that the grievor's belief that there was a conspiracy headed by Aymer to promote Dube in preference to the grievor is not supported by the evidence relating to the period prior to December 1986. If Vervenne and Bernard developed a dislike for the grievor, which this testimony did tend to display, it was a dislike that they acquired individually. Until his move in November to Head of Control and Administration Systems, Aymer had virtually no involvement with the grievor's situation. The evidence also shows that the famous senior staff committee on which Dube participated briefly had no great significance and in any event Dube's participation in it had nothing to do with Vervenne, Bernard or Aymer. 'I am convinced that there was no conspiracy and no plot to put Dube on the fast .track. The events on which the grievor relies to allege a conspiracy headed by Aymer are on the evidence neutral. Through perhaps a break down in appropriate communications between the grievor and his supervisors, the grievor came to see them as a part of some sinigter pattern. Turning then to the critical period of the missed 1 , i - R - interview, we are concerned to see whether the grievor was unreasonably denied .an .opportunity for an interview. As we noted he was 'selected in the competition for an interview. His vacation had been scheduled for a trip to England between 19 December 1986 to 21 January 1987. Aymer knew .that the grievor was going on holidays. On the evening of 16 December the grievor experienced an attack of gout in his right leg and went im- mediately to the doctor. The next morning he telephoned Aymer to tell him he could not come to work that day. According to the grievor, for the first time Aymer then told him that his inter- view was scheduled for the next day (Thursday 18 December) to which the grievor responded that usually a gout attack lasted two days and he did not think he could be back to work until Friday. According to the grievor, Aymer said the interview is set for Thursday. "Let's not change it: leave it the way it is. If you are.not here, I'll talk to you when you come back from vacation." The grievor testified that he understood by this that he would get an interview after the vacation. The grievor returned to work on Friday but there was no discussion between him .and Aymer at that time. That night the grievor flew to England. In cross-examination, the grievor stated that by December 15 he stiL1 had no, date for his interview and had gone to see the union representative who, he said, recommended that he write Personnel that he was going away on vacation. He did so on December 16 and‘delivered it to Personnel (Exhibit 10). He further stated that prior to this he had gone to Personnel about : . - 9 - not having a date for his interview. He spoke to Arija Raze who apparently got the idea that he was going to go to the Ontario Human Rights Commission. This got back to Bert Vervenne who questioned him about it. The grievor agreed that Aymer did tell him that the interview scheduled for the 18th was especially scheduled for him because he was going on vacation; the other candidates were being interviewed on December 22, 23 and 24 and January 7 and 8, 1987. Aymer testified that he put the schedule for interviews together although it would be Human Resources (Personnel) which would slot interviewee names into the various times available. He ,went to the grievor on Monday December 15 to ask what days the grievor would be away on vacation. He then asked the secretary to set up an interview that week for the grievor. She selected Thursday morning. Aymer testified that he then went back to the grievor either the Monday afternoon or Tuesday morning and told him the interview was Thursday.December 18. The grievor said that his gout was flaring up and he was not well enough-,to come in Thursday. Aymer said they would hold Thursday open for him for his interview. He also recalled the grievor's calling him while he was off ill and saying he would not be in on the Thursday. The Friday was the time of the staff Christmas party and other people went out for the Christmas lunch. On December 22 the panel met and decided to go ahead with the competition and to remove the grievor from the short list. They felt there was so much difficulty attracting quali- - 10 - fied computer people that they should not postpone the compe- tition. Ms. Lau and Dube were successful in being appointed to SO4 positions. In cross-examination, Aymer stated that after he spoke to the grievor on December 15 or 16 he struck him off their list. Although in hits opinion there was a shortage of SO4's because of the difficulty of attracting and keeping qualified applicants, he did not want to keep the competition open too long. Once or twice in the last six years the interview period has been extended to allow for interviews where there wa,s a mix- i up on the dates. Arija Koze testified that the incident where the grievor had spoken to her was on October 22, 1986. It did not relate to the competition because it had not yet started. It related to the hiring of consultants and his not getting ahead in the branch. As a result she had telephoned Vervenne who was attending a conference and had to be tracked down to take her message. Vervenne confirmed these events in his testimony. At the time of the grievor's letter on December 16 there was no discussion with the grievor. Dube's name had not been mentioned in the October discussion. The fundamental issue is whether the Ministry un- reasonably or unfairly denied the grievor an interview. It is important here to note, firstly, that he was selected for an interview and secondly, that an effort was made to give him an early interview because of his scheduled holidays, namely for the Thursday December 18. It is also important to note the real 0 . - 11 - basis of the grievor's complaint: when he became ill suddenly and could not attend a Thursday interview which had been scheduled for him., the competition as a whole went ahead on schedule and was concluded before he returned from vacation. I accept on the evidence that Aymer organised the competition schedule of interviews for the reasons he gave in evidence: it was a very large competition with 160 applicants, 40 of whom were selected for interviews and, because it is a competitive area, it was not delayed so as to avoid losing qualified candidates who might otherwise accept other job offers before the contest could be concluded. The grievor gave one example of one other competi- tion which had been held open to permit one of the applicants to attend an interview late - the de Sousa competition - but it was a small competition for an SO3 position. Aymer admitted there had been two other instances: But there was no evidence o,f a general tendency to do so and the subject competition was very large and actually of longer duration than most of the other competitions for which data was produced in evidence at the hearing. Unquestionably, there is an obligation to run compe- titions on a fair and reasonable basis so that the candidates can compete equally. Whether there is unfairness in any particular case depends on the facts of the case. Applying a subjective test I do not find on this evidence that the contest was con- ducted by Aymer or management in general with.an improper motive. Aymer did try to' accommodate the grievor's special situation. Given the real 'needs of the competition itself he did not delay 1 i i, ., . . - 12 - the competition further when the grievor became ill but he was not motivated, in my opinion, by any intention. to frustrate the grievor.'s rights.. The grievor's inability to attend an interview was the result of his own circumstances which Aymer had made an honest effort to meet. Applying an objective test, I do not find that the Ministry was required to do more. A judgment had to be made about going ahead. It was not an unreasonable decision for the reasons referred to above. A balance between the needs of the competition itself and the situations of the individual candidates has to be struck. On these facts the decision taken not to postpone was justifiable. Accordingly the grievance is dismissed. DATED AT TORONTO, Ontario this 5th day of January , 1989. +2tk %L&&Id AOMAS H. WILSON, vxe-Chairperson I