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HomeMy WebLinkAbout1987-1243.MacKenzie.89-06-28I -. ONTIRO EWLOYCS DE LA CO”Rk CROWN EW‘OYEES DE “ONTARIO GRIEVANCE C(NvlMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS IN TEE MTTER OF AN ARBITRATION under TBE CROWN EMPLOYEES COLLECTIVE BARGAINING~ACT Before GRIEVANCE SETTLEEENT BOARD Between: OPSEU (L. MacKenzie) - and - Grievor The Crown in Right of Ontario (Hinistry of Transportation 6 Communications) Employer Before: For the Grievor: For the Employer Bearings: E. Ratushny Vice-Chairperson I. Thomson Member I-l. O'Toolc! Member C. Paliare 1 Counsel Gowling , St;athy 6 Henderson Barristers h Solicitors M. Failes Counsel Winkler, Filion & Wakely Barristers 6 Solicitors August 3, 1988 August 4, 1966 ,/-’ I I DECISION The Grievor alleges a contravention of Article 4.3 of the Collective Agreement which provides: 4.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where. qualifications and ability are relatively equal, length of continuous service shall be a consideration. When the position in question became vacant, it was designated as bilingual. There was no dispute that the Grievor was better qualified for the position than the person who was appointed except that the Grievor cannot speak French. It is well-established that management must exercise fairly its discretion to determine the qualifications to perform the required duties. In McCormick (G.S.B. 1141/84), Vice-Chairman Roberts stated: 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... In the present case, there was no evidence to indicate that the academic qualifications laid down by the Ministry were reasonably related to the job Of Recreation Officer 2., Whatever evidence there was, went the other way. (p.7). As a result, the Ministry was found to have violated Article 4.3 and the grievance was allowed. In Giasson (G.S.B.2250/87) the issue was almost identical to the one which we are facing: The issue before this board is whether the French language requirement inserted into the posting for the position of Construction Safety Officer in the Sudbury office was reasonably related to the job to be performed. (p.9). There the majority of the Board concluded that there was no evidence of bad faith on the part of the employer and, in addition, that the requirement was reasonably related to the job to be performed. In view of the similarity of the Giasson case to the one before us, it was decided to await that' decision before completing our own. After the Giasson decision was released, we wrote to counsel for the Grievor and the Employer, respectively, inviting further written submissions in light of Giasson. Such submissions were in fact received earlier this year. In the grievance before us, there has been no suggestion of bad faith so that the sole ksue is whether the bilingual requirement is reasonably related. to the position in question. It should be noted that- the criterion is "related" rather than "necessary". The latter test would imp0se.a 'higher burden upon the employer. Nevertheless, the relationship of the requirement to-the job must be more than tenuous or speculative. It must be ,borne in mind thsr if thi s additional requirement meets the tes-,, it will have the serious consequence of depriving the Grievor of a promotion to which she otherwise would be entitled. Prior to hearing the merits of the grievance, written reasons were given in relation to our rulings on certain jurisdictional issues (July 27, 1988). One of these rulings was that we did not have jurisdiction to. deal with that aspect of the grievance which purported to allege a violation of the Ontario Human Rights Code. The majority of'the Board in Giasson came to the same conclusion. However, counsel for the Grievor sought to resurrect the issue as an alternative'argument on the merits. The gist of this argument' is that our ruling in relation, to jurisdiction was simply that a grievance cannot be founded on I an alleged violation of the Ontario Human Rights Code. Here the grievance is not founded on such an allegation but on a contravention of Article 4.3. Nevertheless, the argument goes, in dealing with this grievance under Article 4.3, we must not give effect to a job qualification which is unlawful under the Code. While we admire counsel's persistence, we are of the view that such an approach would still involve a determination that there had been a contravention of the Code. For the reasons stated in our interim ruling, we do not have the jurisdiction to do so. 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 is described as Inside Examiner. The Supervisor position is full-time while the Inside Examiner is employed on contract for 24 hours per week. Approximately 80% of the work of the office involves direct contact wirh the pilblic. This includes dealing with aii inquiries by telephone Andy at the counter. For example, questions are asked by the public about the Highway Traffic Act, applications are received and permits and licenses are issued and modified. Written examinations are administered and appointments are made for road tests. In addition, there is banking to be done and other paperwork associated with administering the office. All of these tasks are performed by the Supervisor. However, the Supervisor also has the responsibility for road testing. The part-time position was established so that the office could continue to function while the Supervisor was absent for road testing or other duties outside of the office. The Inside Examiner is bilingual., The previous Supervisors, ! I :., extending back at least ten years, were bilingual. Therefore, as a matter of practice prior to the vacancy inquestion, bilingual service was available to the public .in all facets of the operation of the New Liskeard office. When the position of Driver. Examiner Supervisor became vacant in April of 1987, bilingual capacity was made a job requirement. The Grievor is an Inside Examiner in the Sudbury Office of the same Ministry. This office is larger than the one at New Liskeard. In addition to the Supervisor, there are three full-time outside .examiners land from three to four full-time inside examiners including the Grievor. The Supervisor and one of the outside examiners are.able to provide road examinations in French when requested. There is no such flexibility at New Liskeard since the Supervisor is 'also the only outside examiner. When the position in New Liskeard became vacant *but before it was filled on a permanent basis, employees were assigned from other offices to carry out these duties on an 2 & basic. In Cact; the Grievor, herself was assigned there cn four occasions. On each occasion, one-half day would be spent travelling from Sudbury to New Liskeard and another one-half day would be spent on the return trip. On 'these four occasions she spent a total of nineteen days actually performing the duties of the Driver Examination Supervisor at New Liskeard. Another unilingual employee from' the Sudbury office also had been assigned to fill in at the' New Liskeard office during this period. In addition, some bilingual employees from Timmins were also assigned to fill in during this, period. The majority in.Giasson reached its conclusion that the bilingualism requirement was'reasonably related on the basis of the nature of the position in question, quite apart from the potential application of the French Languaqe Services Act, 1986. - Nevertheless, that legislation provides important context for assessing the reasonableness of the relationship of the qualification to the position. The Preamble to the Act includes the following: Whereas the French language is an historic and honoured language in Ontario and is recognized by the Constitution as an official language in Canada; and whereas in Ontario the French language is recognised as an official language in the courts and in education; and whereas, the Legislative Assembly recognises the contribution of the cultural heritage of the French speaking population and wishes to preserve it for future generations; and whereas it is desirable to guarantee the use of the French language in institutions of the Legislature and the Government of Ontario, as provided in this Act... Amongst other things, the Act establishes the right to receive available services in French from government offices in designated municipalities and districts. Provision is made for the phasing in of this right over a three year period commencing on November 10, 1986, through the designation by the regulations of the various government agencies or institutions until all are included. Counsei for the Grievor did not challenge the purpose or policy of the legislati.on but merely the implementation of the policy on the facts of this grievance. In Giasson, the Board pointed out that the ultimate decision-maker in designating the position bilingual had not been presented as a witness. In contrast, the Regional Manager, Mr. Stonehouse, was called to testify before us and was subjected to extensive cross-examination by counsel for the Grievor. He pointed out that the Government of Ontario had an official policy for the development and making available of French language services for many years prior to the French Language Services Act, 1986. He is responsible for the designation of offices as bilingual under the Act. - b - Mr., Stonehouse indicated that. there were a number of factors which were considered in determining whether a position should be designated as bilingual. With respects to the New Liskeard position: 1. The office is in an area designated under the Act; 2. There would be no other French language capability with respect to road testing if the position were not bilingual; 3. There was no reasonable alternative for providing the service; 4. The service had been provided, in fact, on a continuous basis for some time. This witness provided considerable detail as to the manner in which the decision was'taken and the others 'who were involved. Under cross-examination he conceded that he did not have a personal knowledge of the requirement for French capability in the new Liskeard office. Rather, his judgment was based upon consultations with staff, correspondence with the public and periodic visits to the New Liskeard office. In our view, it would not,be practical for the Regional Manager to-make a direct assessment of each position based upon personal knowledge and we do not consider the process by which the designation occurred to be unreasonable. _L Nevertheless, it remains for this Board to form its own conclusion to the reasonableness of the relationship between the bilingualism requirement and the position in question. The Grievor stressed that ~her success in filling in at New Liskeard while the position was vacant clearly demonstrates that there was no demand for services to be provided in the .French language. She was able to conduct driver examinations while at New Liskeard .’ and to fulfil1 the full range of duties of a Driver Wtaminer Supervisor without ever being required to use French. Moreover another unilingual person had been assigned to New Liskeard. While this is certainly evidence in her favour, there are other factors. Firstly, while she was assigned to New Liskeard, the Inside Examiner worked on a full-time rather than a part-time basis and the Grievor spent 80% of her time doing road testing. This was not the usual allocation of time for the Driver Examiner Supervisor in New Liskeard. In other words, the Inside Examiner was in the office whenever it was open in order to provide continual bilingual service. Secondly, it is obvious that no requests for driver examinations in French would be assigned to the Grievor since she was not capable of conducting them. However, we agree with Mr. Paliare that the failure to call the Inside Examiner as a witness is a factor to be weighed against the Employer. Nevertheless, there was significant evidence of the demand fcr services in the Frer.=h language. The Griever testified that her experience in New Liskeard suggested that from 4 to 59 of the clientele were French-speaking to the extent of having "an accent or dialect" indicating that they were "more French than English". On cross-examination she elaborated that those falling within this category of from 4 to 5% would have a "very heavy accent" or would "have trouble finding the right word" or would speak in "broken English". She was unable to estimate how many of the remaining 95 to 96% of the clientele might have preferred to speak in French even though they were able to communicate effectively in English. Maurice Desjardins is the District Manager in Tiaunins but previously had been District Manager in Sudbury. In 1980 he was the Driver Examiner Supervisor in New Liskeard for eight months. : j 0, id’. - 8 - He testified that the clientele situation would not have changed much from 1980 to 1987. He agreed with the Grievor that approximately 5% of the clientele would have trouble speaking .English. However, he estimated that if a French speaking capacity were available, from '15 to 20% of the clientele would take advantage of that opportunity as their preference. This view certainly corresponds with what little data was presented but which indicated that well over 20% of the population in both the Timiskaming area and the smaller area serviced by the New Liskeard office was francophone. Counsel for the Employer made the point that, the '"reasonably related" criterion must be assessed not by whether people would. have been able to "get by" without speaking French but by whether French language services would be utilised significantly if they were available. Bearing this in mind, it is a reasonable inference that there was a significant demand for French language 'services even though records of such demand were not kept and surveys were not taken. It remains to consider whether the Employer ~acted reasonably in concluding that alternative means of providing French language services in the office in question were not available. The nearest office to New Liskeard at which such. services are available is North Bay. This is almost a two hour drive and for that reason would not provide an adequate level of service. It was also suggested that a bilingual outside examiner could be assigned to New Liskeard on certain days. However, that would disrupt the operation of that examiner's home office (particularly its French speaking services) and would result in significant expenditures for travel costs and lost time due to travel. - 3 - < . . A In sum, we are of the view that the designation of the position of Driver Examiner Supervisor in the New Liskeard office as bilingual was reasonably related to the position in question. The grievance is dismissed. DATED at Ottawa, Ontario this 2Db day of JUIY, 1989. DISSENT I read the award of the Chairman and must dissent from it. The decision is seriously flawed in two fundamental ways. First, the majority completely disregards the importance of seniority in Article 4.3 of the Collective Agreement. Many Boards of Arbitration, over the last 25 years, have quoted the passage from Judge Reville in the Tund-Sol of Canada Ltd. case and it obviously bears repeating: ~lVSeniority is one of the most important and far- reaching benefits which the trade union.movement has been able to secure for its members by virtue of the collective bargaining process. An employee's senior~ity under the terms of a collective agreement gives rise to such important rights as relief from lay-off, right to recall to employment, vacations and vacation pay, and pension rights, to name only a few. It follows, therefore, that an employee's seniority should only be affected by very clear. language in the collective agreement concerned and that arbitrators should construe the collective agreement with the utmost strictness wherever it is contended that an employee's seniority has been forfeited, truncated or .abridged under the relevant sections of the collective agreement." (Tuna-Sol of. Canada Ltd.' (1964), 15 L.A.C. 161 (Reville), at p. 162 It is obvious, that the majority has failed to construe this collective. agreement "with the utmost strictness" when an employee's seniority is being forfeited. . . I -2- Mrs. MacKenzie clearly had substantial seniority which ;Jas completely and absolutely disregarded by the employer when it chose to hire a new employee to fill the position of ariver Examiner Supervisor in the New Liskeard office. In addition to her seniority, the grievor was clearly considered to be an excellent employee in every respect. Seccndly, the majority has made some significant errors ;iith respect to its application of the evidence. There is no doubt that the Grievance Settlement Board can accept evidence which would normally not be admissable in a court. Thus, hearsay evidence can, and is often accepted by the Board. However, the jurisprudence is clear that a Board of Arbitration cannot find an essential part cf its decision on hearsay, even though hearsay evidence 4s admissable. The majority has unwittingly committed the error of accepting hearsay evidence and then has used the hearsay as the basis for deciding fundamental issues in the case. i. i I I,.,. 1 : The uncontradicted evidence of the grievor was that she had been appointed, by the employer, on four separate occasions for a tote1 Of 19 days to fill the position in New Liskeard as a unilingual Driver Examiner Supervisor. In addition, on other occasions, the employer assigned'a unflingual employee from the Sudbury office to also fill in at the New Liskeard office. There was never any complaint with respect to the unilingual service being offered by these employees. Moreover, the repeated r - 3 - reappointment of these unilingual employees must, by clear inference, indicate that the employer was satisfied to have a unilingual.employee perform this task. Moreover, the only uncontradicted evidence with respect to the current situation regarding the extent. of the requirement for bilingualism came from the grievor. She testified that 4 to 5 percent of the population would have a very ,heavy accent or would have trouble finding the correct word, or would speak in broken '~ English. The employer called no evidence to refute the assertions made by the grievor concerning the situation in New Liskeard at or about the time of the posting. Rather, the employer called evidence from Mr. Desjardins with respect to the situation in New Liskeard in 1980, where he -. performed this job for 8 months. He then gave his opinion that. the c,lientele situation would not have changed much from'.1980 to 1987. That statement was' obviously made without either his having.worked out of that office or his having lived in the area. Be was simply in no position to have been able to justify his _ opinion. ., : Furthermore, ~the comments by the majority at page 6 with respect to the evidence of Mr. Stonehouse are completely at odds with the jurisprudence related to the use of hearsay evidence by a Board of Arbitration. The majority recognizes- that Mr. ‘Stonehouse . . - ., I / I ; -4- admitted in cross-examination that "he did not have a personal knowledge of the requirement for French capability in the New Liskeard office". Rather, his judgment was based an consultations with staff, correspondence with the public and periodic visits to the New Liskeard office. None of the correspondence was produced and the periodic visits were very infrequent (once or twice a year) and were nothing more or less than a short visit to the office. In other words, his entire opinion was based on information from others. Obviously, the hearsay,nature of his evidence could not be the basis for judging whether or not the designation to bilingual was reasonable. From a natural justice point of view, the Union was precluded from cross-examining any of the people from whom Mr. Stonehouse obtained his information. ( : The majority goes on to state that in the view of the majority "it would not be practical for the Regional Manager to make a direct assessment of each position based upon personal knowledge and we do not consider the process by which the designation occurred to be unreasonable". I must completely dissociate myself from this view. Nothing could be more at odds with the jurisprudence both from this Board and the private sector. Quite simply, we have only the hearsay evidence of Mr. Stonehouse to justify the designation. It may be that as the Regional Manager, he is entitled to rely upon that information. However, we as a Board of Arbitration must do justice to the parties and to the -5- provisions of the collective agreement which have seniority as one of the basis for deciding job promotions. In order to justify its position, the employer is obliged to call evidence which is slightly more tangible than the out-of-date recollections of Mr. Desjardins or the hearsay evidence of Mr. Stonehouse. What is lacking in this case is.any non-hearsay evidence which would establish the reasonableness .of the relationship between the bilingualism requirement and the position .in question. At best, it is highly speculative that there may have been a relationship.' However, 'when seniority rights are being truncated, something more than hearsay or speculation must be the foundation for setting aside those seniority rights. Finally, by relying on the French, or its preamble, the majority has once again relegated seniority to the 'back burner contrary to the express provisions of the collective agreement. The new legislation is not intended to override or trammel seniority rights of employees who are bound by a collective agreement. Thus, in my view, on the evidence that was adduced, I would have found that there was no reasonable relationship between the requirement. of bilingualism and the performance of the job in ,