HomeMy WebLinkAbout1987-1243.MacKenzie.88-07-27EMPLOY~SDhACOURONNE
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1243187
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
i THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (L. MacKenzie)
Before:
and
The Crown in Right of Ontario
(Ministry of Transportation'and Communications)
Employer
E.J. Ratushny Vice Chairman
I.J. Thomson Member
M. O'Toole Member
For the Grievor: C.,Paliare
Counsel
Gowling & Henderson
Barristers & Solicitors
For the Employer: M. Failes
Counsel
Winkler, Filion and Wakely
Barristers and Solicitors
Grievor
Hearing: March 24, 1988
.
RULING ON JURISDICTION
This grievance is in relation to the position of Driver
Examiner Supervisor in the New Liskeard Office of the Ministry of
Transportation and Communications. There is one additional position
in this Office which was described to us as Inside Examiner and which
is a part-time position. The Grievor holds the latter position and
when the Supervisor position became vacant, she became Acting
Supervisor for a number of weeks prior to the job posting.
When the position was posted 'it was described as a
Bilingual position. The position specification also had been modified
to include this bilingual requirement under both headings of "Position
title" and "Skills and knowledge required'. Under the latter heading,
the following words are used: "Fluency in English and French
required. To the Advanced Level". This was the first designation of J
this position as bilingual although we were informed that, as a matter
of practice, previous incumbents were actually bilingual.
The Grievor,. claims that the competition in question
violated the Collective Agreement "in its request for bilingualism".
She seeks to be awarded the position and granted all lost wages,
benefits and credits.
At the hearing on February 5th. counsel for the Employer
made a preliminary objection that the grievance raises matters which
are beyond the jurisdiction of the Grievance Settlement Board to
decide. The gist of his argument was that the content of a position
specification falls within "the exclusive function of the employer to
manage" as established by section 18(l) of the Crown Employees
Collective Bargaining Act. More specifically, the offering of
bilingual services to the public falls within "work methods and
procedures" as specified in section 19(l)(a). Although'the Government
is committed to collective bargaining, there is an over-riding
responsibility to provide services to the public and it cannot be
fettered in the manner in which it chooses to provide these.
Counsel for the Grievor responded that section 7
specifically authorizes the employee organization to bargain in relation to
"promotions". He argued that the essence of this grievance is the
issue of advancement based on seniority under Article 4.3 of the
Collective Agreement.
A few weeks after the initial hearing, the Board was
informed by counsel for the Grievor that an identical jurisdictional
question had been raised in the subsequent case of OPSEU (Giassonland
Ministry of Labour, G.S.B. 2250/87. There the Board ruled orally that
it did have jurisdiction and that written reasons would follow. In
these. circumstances, the Vice-Chairman of our panel indicated to the
parties that our ruling on the jurisidictional argument would be
delayed until thecwritten reasons in Giasson were received, together
with any further submissions by counsel.
The Giasson reasons were received in early June. Further
submissions were received from counsel for the Employer in late June.
Further submissions from counsel for the Grievor were received on July
13th.
In seeking to consider the reasons of the Giasson panel
prior to ruling on the argument before us, we have been conscious of
the role of the Grievance Settlement Board as described by its
Chairman 0.8. Shime in E. Blake et al and Amalgamated Transit Union
and Toronto Area Transit Operating Authority, G.S.B. 1276/87 et al. --
He said:
But more important is that the decision in the
Francis Case is the decision of the Grievance
s ttl t Board. In the private sector ad hoc
btard??f arbitration have a separate and
distinct capacity to decide each case on its own
merits. Recognizing that individual, but
different, decisions on the same point or issue
may create confusion, arbitrators have balanced
the interests of individual decision making with
predictability by generally adopting a policy
that they will not depart from earlier decisions
unless such decisions are manifestly in error.
-3-
But the Grievance Settlement Board is one entity
- it is not a series of separately constituted
boards of arbitration. Under Section 20(l) Of
the Crown Employees Collective Bargaining Act
there is "a Grievance Settlement Board" - that
is, one Board. Under Section 20(4) the Grievance
Settlement Board may .sit in two panels and under
Section 20(6) a decision of the majority of a
panel is "the decision" of the Grievance
Settlement Board.
Thus each decision by a panel becomes a decision
of the Board and in ouropinion the standard of
manifest error which is appropriate for the
private sector is not appropriate for the
Grievance Settlement Board. The Act does not
gjvesone panel the right to overrule another
panel or to sit on appeal on the decisions of an
earlier panel. Also, given the volume.of cases
that are currently administered by this board,
the continuous attempts to pursuade one panel
that another panel was in error only encourages
a multiplicity of proceedings and arbitrator
shopping which in turn creates undue
administrative difficulties in handling the case
load;
,
We are mindful, however, that there is no
provision for appeal and there are limits to
judicial review. While it is our view that the
"manifest error" theory is too lax a standard,
we recognize that there may be exceptional
circumstances where an earlier decision of this
board might have to be reviewed. At this point
we are not prepared to delineate what
constitutes exceptional circumstances and the
fleshing out of that standard will be determined
on a case by case basis. The onus will be on the
party seeking revjew to establish exceptional
circumstances.
This passage has been quoted in full since the ruling which follows
relies heavily upon the results and reasons contained in earlier
awards.
.
In his written submissions, counsel for the Employer
framed the issues in the following manner:
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1.
2.
3.
Does the Board have jurisdiction under the
Crown Employees Collective Bargaining Act to
determine whether the qualifications for a
job, as set out in the job specification,
are reasonable.
In the alternative, if the Grievance
Settlement Board does have iurisdiction
___ __. _..~~~
ermine whether
-~~.-are reasonable, does the
Grievance Settlement Board have jurisdiction
to review the determination by the Ministry
that the work be done in a certain fashion
(i.e. that the service be provided in both
French and,English). In particular, does the
Grievance Settlement Board have jurisdiction
to inquire into whether the position is
properly designated. as one in which the
service will be provided in both French and
English or must the Grievance Settlement
Board accept that designation as appropriate
and only inquire into whether the
qualifications ,set for the job are
reasonable in light of this work
requirement.
Does the Grievance Settlement Board have
jurisdiction to consider the grievance
insofar as the grievance purports to allege
a violation of the Human Rights Code.
Counsel for the Employer cited OPSEU (Brick and Roth) and
Ministry of Transportation, and Communications G.S.B. 244/82 as an
example of the operation of section 18 of the Act. As part of an.
affirmative action plan, the employer there assigned women employees
to certain positions where they would receive "on-the-job training".
They would then return to their previous positions but would be better
.qualified to apply for higher positions when these became vacant. The
union characterized this program as providing "promotional
opportunities". However, the Board found that it involved training and
development. falling within the exclusive management right of the
employer under section 18(l)(b). Accordingly, the Board lacked
jurisdiction to hear the grievance. While this decision does provide
an example of the Board declining jurisdiction on the basis of section
18, the facts are rather remote from the grievance et hand.
-5-
In OPSEU (Lapraik) and Ministry of the Attorney General
G.S.B. 657/84, the grievor was denied an interview for a bilingual
position because she does not speak French. The Board described the
issue before it as being whether or not the requirement of
bilingualism was improperly added to the position specification and
applied as a criterion in the'selection process. The following result
was reached:
Provided that, as here, the posting fairly sets
out the criteria that will be used in the
selection process and that those cri.teria fairly
represent the requirements of the position as
contained in the position specification, the
applicant is properly informed about the object
of the competition. (p. 5)
The Employer relies on this passage for the proposition that the
content of the position specification is beyond the reach of this
Board. However, that decision was made on a much narrower basis. The
challenge in Lapraik was made specifically on the basis that:
The Employer cannot add to a position
specification a requirement not contained in the J
class standard for the classification to which
it is allocated . . . (p.3)
The Board specifically concluded that the Employer was not precluded
from revising the position specification by adding the bilingualism
requirement simply because of the absence of that requirement from the
relevant class standard. This still leaves open the first issue before
us as to our jurisdiction to determine whether the qualifications for
a job, as set out in the job specification, are reasonable.
On this issue, counsel for the. Grievor cited, OPSEU
(McCormick) and Ministry of CorrectSonal Services G.S.B. 1141/84.
There the grievor had applied for a position which included the
following qualifications in. the job posting: "... successful
completion of an approved two-year Diploma Course . . . or a Degree . . .
from a recognized university . ..". Although the grievor did not
possess the required diploma or degree, he believed that he had
equivalent qualifications. Nevertheless, he was screened out at the
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preyinterview stage. The decision states that:
It was undisputed that under Article 4.3, the
fairness doctrine required management to
exercise fairly its discretion to determine the
qualifications to perform duties. This Board has . long been of the view that in order to satisfy
this requirement, the qualifications established
by management must be reasonably related to the *
job in question. (pp. 6-7)
The Board allowed the grievance on the basis that there was no
evidence to indicate that the academic qualifications laid down by the
Ministry were reasonably, related to the job in question. On the
contrary, the limited evidence pointed in the opposite direction. It
is to be noted that the decision does not limit its observations to
qualifications contained in the job posting but speaks, more
genera?7y, of "qualifications established by management".
In Giasson, the grievor was denied an interview for the
vacancy in question since he slacked fluency in French which was a
requirement for the position. It was specifically argued on behalf of
the employer that the grievance was inarbitrable since the requirement
for fluency in French was, established by the employer in the exercise
of its management rights. Counsel for the grievor relied upon
McCormick to claim that the Board has jurisdiction to determine
whether the qualifications established by the .employer for the
position in question are reasonably related to the job to be
performed. Otherwise:
*.. the Employer could establish qualifications
bearing no relationship to the work to be done,
deprive qualified applicants of positions to
which they were entitled and yet, the matter
would not be subject to review. (p. 51
The grievor took the position that the requirement for fluency in
French was not reasonably required and was potentially discriminatory
on grounds proscribed by the Ontario Human Rights Code. It is clear
that the Giasson grievance broceeded on very similar grounds to the
grievance at hand;
-7-
In Giasson, (Vice-Chairman Devlin) the Board concluded
f that:
Article 4.3 of'the Collective Agreement clearly
relates the qualifications to be considered by
the Employer to the required duties to be
performed and in keeping with the jurisprudence
of this Board, we find that the qualifications
to which reference is made in Articles 4.2 and
4.3 of the collective agreement must bear a
reasonable relationship to the job to be
performed. (p. 67
and:
. . . the Board has jurisdiction to determine
whether fluency in French which was required for
the vacancy in the position . . . was reasonably
related to the job to be performed. (p. 71
In his written argument, counsel for the Employer sought ,to
distinguish Giasson on the basis that:
. . . it would appear that the requirement for ,
French was contained only in the job posting
itself and was not contained within the job
specification.
However, our reading of that decision does not reveal, any indication
that the qualification in question was not contained in the job
specification. It is true that the decision was based on Article 4 of
the Collective Agreement which specifies the procedure for posting.
However, there is no reference to a discrepancy between the job
specification and the posting. In any event, if the rationale for
reviewing the reasonable relationship between the qualifications and
the job is to ensure the integrity of the operation of Article 4, then
that review should extend to the specification as well as to the
posting.
On the basis of the McCormick and Giasson decisions, we
rule that this Board does have jurisdiction to determine whether the
qualifications for a job, as set out in the job specification, are
reasonable.
-8-
The second issue expressed by counsel for the Employer
raises broader considerations. Although this issue was framed in
subsequent written submissions, it would appear to be related to
counsel's oral submissions at the hearing to the effect that the
Government has an over-riding responsibility to provide services to
the pub7ic and cannot be fettered in the manner in which it chooses to
provide these.
In our view, this is not a jurisdictional issue for
determination at this time. No authorities or arguments were cited
apart from section 18 of the Act. It is a long step to decline
jurisdiction on that basis alone. In searching for guidance on this
issue, we see a possible analogy in relation to management's ability
to assign work. Under the heading of "The Requirement of Bona Fides",
Brown and Beatty Cotmnent:
Although arbitrators have insisted that
management's ability to assign work within the
unit can be fettered only by clear and express
language, nevertheless, as with most instances
involving an exercise of management's rights,
there is a general arbitral presumption that the
right to reorganize the workforce must not be
carried out in bad faith, arbitrarily or
discriminatorily. However, while insisting ~that
such reorganizations be carried out in good
faith and for valid business reasons,
arbitrators have generally been of the view that
the particular cause or reason for the change in
work allotment is irrelevant . . . where it is
established that the decision was effected in
good faith, it would be of no consequence to
allege that the action taken . . . was simply for
the company's convenience or was merely
unreasonable. (Canadian Labour Arbitration,
Second Edition, at pp. 231;21.
In the public sector, in addition to factors such as cost and
efficiency, the concept of "valid governmental [as. opposed to
"business"] reasons"might be superimposed.
In other words, even where a job qualification might not
meet the standard of reasonableness, it might be justifiable on the
/
J
I
- 9 y
basis of a broader governmental purpose. In a democratic society,
I governments frequently must balance competing interests in reaching a
public policy. .It is inevitable that such a policy will be viewed as
unreasonable by at least some individuals. It seems to us
inappropriate for this Board to be placed in the position of
"second-guessing" the reasonableness of governement 'policy. The
situation is different where the bona fides of such a policy is --
questionable in relation to the operation of a collective agreement.
Where a policy is,adopted in bad faith or arbitrarily in relation to a
collective agreement, the Board would appear. to have a valid role
under. section 19 of the Crown Employees Collective Bargaining Act.
We are quick to add that we do not adopt these
observations as our final position in relation to this issue. Rather
we share them with the parties as our preliminary views in the search
for a clearer focus. We will be seeking the guidance of counsel as to
whether these comments should form the basis for our final approach to
this issue.
The third issue relates to our jurisdiction to consider
the allegation of a violation of the Ontario Human Rights Code.
Counsel for the Grievor argued that this issue fa7ls under the
principle acknowledged in. HcLeod v. Egan (1974) 46 D.L.R. (3dl 150
(S.C.C.1 which requires an arbitrator to construe and apply any
relevant statute law even though it "was not a projection of the
collective bargaining relations of the parties". Counsel also cited
Re Peterborough Civic Hospital and Ontario Nurses' Association (1981)
3'L.A.C. (3dl 21. However, we do not consider this case to be helpful
since the collective agreement there specifically incorporated the
application of the Ontario Human Rights Code.
The case of Re Singh (19801 27 L.A.C. (2dl 295 is much
more persuasive. There Vice-Chairman Eberts thoroughly reviewed this
issue and concluded that this Board has "the jurisdiction and the
duty" to hear a grievance even though it also properly might be the
subject of a complaint under the Ontario Human Rights Code. In
reaching this conclusion, she relied in part upon the decision of the
.
-lD-'
Ontario Court of Appeal in Bhadauria V. Board of Governors of Seneca
I College of Applied Arts & Technology (19797 705.0.L.R. (3d) 707, which
affirmed in Ontario the existence of a tort of discrimination in spite
of the availability of the avenue of redress established by the
Ontario Human Rights Code for acts of discrimination.
However, the Supreme Court of Canada subsequently reversed
the Ontario Court of Appeal in Bhadauria and a series of more recent
decisions of this Board'has uniformly reached an opposite conclusion
to -that in Singh. In OPSEU (Noah) and Ministry of Cormsunity and
Social Services G.&B. 767/85 (September 72, 1986) the 8oard stated:
The issue of the Board's jurisdiction to
entertain that allegation [of discrimination
based on ohvsical disabilitvl is settled bv the
decisionof the Supreme Co& of Canada in Board
of Governors 'of Seneca College of Applied-
and rechnology v. Bhadaurla 124 D.L.R. 1361 7?73- .
The flndlna of this Court was that the Code
establishes" exclusive procedures for the
enforcement of its substantive provisions and so
provides comprehensively for remedies for its
breach. (p. 47
A similar result was reached in: OPSEU (Mousseaul and Ministry of
Correctional Services G.S.B. 1182/85 (December 26, 19861; OPSEU
(Shipley) and Mfnfstry of Correctional Services G.S.B. 0223/86
(November 10, 1987); and OPSEU (Aubinl and Ministry of Correctional
Services G.S.B. 1044/85 (January 15, 19881.
Although dissenting reasons were given in each of these
last three decisions; we are not prepared to depart from this
consistent line of decisions. In this connection, we do not see
"exceptional circumstances", in the words of Chairman Shime in w,
which would warrant a review of these earlier decisions. Accordingly,
we do not have jurisdiction to deal with this grievance to the extent
that it purports to allege a violation of the Ontario Human Rights
Code.
. . .
- 11 -
In summary:
1. The Board has jurisdiction to determine whether the qualifications
for a job, as set out in the job specification are reasonable;
2. Our preliminary view is that where certain qualifications are the
result of broad governmental policy, the ~standard for assessment
by the Board is not reasonableness but bona fides. We will --
receive further submissions before formulating our conclusions on
this issue;
3. The Board does not have jurisdiction to deal with that aspect of a
grievance which purports to allege a violation of the Ontario
I Human Rights Code.
Dated at Ottawa this 27th day of July, 1988.
E. Ratushny, Vice-Chairman /
M. O'Toole, Member
ADDENDUM
I agree with the reasoning set out .in this Award. However, I wish to
support the,views set out by my colleagues on the Human Rights Issue, as
issued in dissent filed by W. Walsh in the GSB decision (1182/85
B. Mousseau) Vice-Chairman - E.B. Jolliffe and also in the dissent of
Mr. J. McManus in the GSB decision (1044/85 C. Aubin) Vice-Chairman -
J. Gandz.
The Awards from GSB have clearly established the pattern on this issue and
I could not add anything, further.
/ .,<’ : ..’ I.J. Thomson