HomeMy WebLinkAbout1987-1289.Roxborough.88-07-04Between:
Before:
1289/87
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN RMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Roxborough)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Community and Social Services) Employer
For the Grievor:
For the Emnlover:
Hearinqs:
J . W. Samuels Vice-Chairman
I. Thompson Member
M. O'Toole Member
S. Ballantyne
Counsel
Cavalluzzo, Hayes & Lennon
Barristers & Solicitors
E. Hipfner
Staff Relations Officer Human Resources Secretariat
May 10, 1980
June 8, 1988
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The grievor claims that she is entitled to a particular clerk typist
position (referred to in the grievance as “the OAG 3 position”) at D’Arcy
Place Developmental Centre. The real issue is whether or not she can
perform the work of the position.
The grievor began her employment at the Centre as a residential
counsellor in 1977. In 1982, she injured her knee at work and went off on
workers’ compensation. From then until May 1985, the grievor was off
work for periods and back to work. She had two operations on the knee.
In May 1985, it was determined that she would never again be able to do
the work of a residential counsellor. She was off work on workers’
compensation and in receipt of long-term income protection benefits
(LTIP), so that her income remained what it was when she was a
residential counsellor.
From September 1985 to June 1986, she attended the Cobourg
District Collegiate Institute with the assistance of the Workers’
Compensation Board, and achieved a certificate in business studies.
In June 1986, she spoke with Mr. R. Marston, one of the Ministry’s
human resources officers, about the possibility of an office job.
In January 1987, the clerk typist position involved in this case
became vacant at D’Arcy Place when the incumbent was promoted. The
job involved clerical and typing services for the Director of Residential and
Program Services, .Mr. L. Cowen, and for other professionals at the
Centre, as well as receptionist duties in the office. In January 1987,
roughly 50% of the work was typing.
An agreement was reached between the Ministry, the grievor, and
the Workers’ Compensation Board, pursuant to which the grievor was
placed in the position to determine her ability to do the job. At the outset,
it was to be an eight-week placement to March 13, 1987, but this was
extended to April 16 in order to give the grievor a further opportunity to
prove herself.
The grievor was told before the placement that she would have to
pass the Civil Service typing test (to meet “the CSC standards”), which
required that she type 50 words per minute. She had already failed this test
twice in the fall of 1986. Before agreeing to the placement, Mr. Marston
suggested she prove some skill in typing by doing one of her own tests
from the business studies course. She was able to type 51.25 words per
minute. So the placement agreement was entered into.
During the placement, she tried three times to pass the Civil Service
typing test and was unsuccessful. Thus, when the twelve weeks was over,
the Ministry posted the job and the current incumbent took over.
By early April 1987, management planned to increase the typing
load of the job considerably. Whereas up until then, the clerk typist was
typing work primarily for Mr. Cowen, one residential supervisor, and one
psychometrist, in the near future the same clerk typist would be responsible
for typing work for Mr. Cowen, two residential supervisors, three shift
supervisors, a full-time psychometrist, a part-time psychologist, various
residential counsellors, and occasionally for a seco~nd full-time
psychometrist. And once this office reorganization was completed, 70-
75% of the job would be typing. The other duties, such as reception work,
remained the same.
While she was on the placement, the grievor was able to cope with
the work given to her. Mr. Cowen was pleased with the quality of her
typing, but he did comment that she was slow in that task. The grievor
says that, while she was working, she would type an average of 50-55
words per minute. She says that she tested herself privately twice and
achieved 53 words per minute the first time and 54.5 on the second
occasion, though she did not take into account the error rates.
Why did she always fail the Civil ‘Service typing test? Mrs.
Roxborough says that she is just too nervous to show her skill during a test.
And there is no doubt that she was very nervous. Mr. Cowen bent over
backwards to help her to pass. While normally she would have had to do
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the test in the office of the Human Resources Department, arrangements
were made for her to do the test on her usual typewriter in the office in
which she worked. Mr. Cowen would come and disconnect the telephone.
He would put a sign on the door to keep everyone from disturbing the
grievor during the test. He would stand outside the office to time her. On
two of the three occasions, when he first came in after the grievor had run
through a test, she told him that she had done badly and he threw the first
attempt into the garbage and she tried again.
In our view, the Civil Service test was a reasonable way to determine
with some accuracy just how quickly the grievor could type. It was a fair
way of determining Mrs. Roxborough’s typing qualifications. And it was
necessary to know how well the clerk typist could type, because after April
1987, this position required someone who could type well. The Ministry
was more than fair in its effort to help the grievor to pass the test. And
given all this assistance from Mr. Coweli, and the number of attempts Mrs.
Roxborough made to pass the test, we are simply not satisfied that the
primary reason for her failure to pass the test is her nervousness. We are
not stiisfied that her self-estimate is accurate. In our view, it is much more
likely that Mrs. Roxborough simply cannot type to the CSC standard.
Now the Union argues that Mrs. Roxborough should have been
maintained in the position, at least for six months, pursuant to Articles 5.5
and 5.7 of the collective agreement. These articles read:
5.5 Where, for’ reasons of health, an employee is
assigned to a position in a classification having a
lower maximum salary, he shall not receive any
salary progression or salary decrease for a period
of six (6) months after his assignment, and if at
the end of that period, he is unable to accept
.employment in his former classification, he shall
be assigned to a classification,consistent with his
condition.
.
=> ’ .
Lj 5
5.7 It is understood that where an employee is
assigned to a position pursuant to Section 5.4, 5.5
or 5.6, the provisions of Article 4 (Posting and
Filling of Vacancies or New Positions) shall not
apply.
These are curious provisions. They appear within a general article
headed “Article S-Pay Administration”, and they are surrounded by
various provisions governing pay administration. Do Article 5.5 and 5.7
go further to confer a substantive entitlement to a position? And when
Article 5.5 speaks of an initial “assignment” to a position, would this term
include the type of placement which put Mrs. Roxborough into the clerk
typist position? We don’t intend to answer these questions.
In our view, whatever Articles 5.5 and 5.7 mean, they cannot mean
that an employee has a right to a job which the employee is not qualified to
do. Common sense dictates that an employee has to be able to do a job
before the employer is obligated to maintain the employee in the position,
unless the collective agreement is very clear that this common sense is not
to apply. There is nothing in Articles 5.5 and 5.7 to suggest that these
provisions are intended to establish some charitable rkgime, to permit
employees to stay in jobs for which they are simply unsuited.
The grievor has not demonstrated that she was qualified to handle the
position as it was to be after April 1987. For this reason, her grievance is
dismissed.
Before closing, we must record a preliminary ruling which we made
during the hearing.
The Ministry argued at the outset that the Union could not raise
Articles 5.5 and 5.7 because these provisions had not been mentioned at the
outset and the Ministry had understood that the grievance challenged the
competition which was run for the position. We dismissed this preliminary
objection.
.:;:..;
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Article 27 establishes the grievance procedure. Article 27.2.1
requires that an employee state her “complaint” or “difference”. There is
no requirement to specify which article of the collective agreement is being
invoked. Though clearly there must be sufficient specificity to suggest a
violation of the collective agreement.
The grievance form here said “I grieve that management has unfairly
restricted my opportunity to the OAG 3 position”. In this form, and at the
second stage meeting (about which we heard some testimony), it was clear
that the grievor’s essential claim was that she should have the position. The
Union’s argument was that, given her service as a residential counsellor,
and her work-related injury which now renders her unfit to continue as a
residential counsellor, and that she had done the OAG job satisfactorily, she
should be maintained in the position. In our view, it was not necessary at
that stage to specify the provision pursuant to which the claim was made.
The “complaint” was clear---under the collective agreement, she should get
the OAG job.
Now the Union argues that the claim is pursuant to Articles 5.5 and
5.7. As formulated, the Union argument deals with the essential complaint
raised in the grievance itself.
There is a general prohibition against changing a grievance late in
the day, and arbitrators have not permitted changes in the specifics of the
claim, because it is desirable that the Employer have the opportunity to
address the claim effectively during the grievance procedure and before
arbitration [see, for example, Re Electrohome Ltd. and International
Brotherhood of Electrical Workers, Local 2345 (1984), 16 LAC (3d) 78
(Rayner), at page 82; and Gwin, GSB 27/83, at page 5). But here, the
Ministry’s response throughout has been that Mrs. Roxborough was not
qualified for the job. And this is the same substantive response to the
Union’s claim under Articles 5.5 and 5.7. Thus, the Ministry has addressed
the “complaint” in as full a fashion as it will ever do, and it will not change
its case in response to an argument under Articles 5.5 and 5.7. There is
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nothing that the Employer would have done differently had the grievance
form itself mentioned these articles, or had the Union mentioned them
specifically at a grievance meeting. In these circumstances, there is no
prejudice to the Employer or to the grievance process if we continue to
hear and determine the case based on the Union’s argument concerning
Articles 5.5 and 5.7.
So, we permitted the Union to proceed, and we have already given
the reader our conclusion on the merits.
Finally, we agree with counsel for the Ministry that any rights which
the grievor may have in her situation flow out of Article 42.10(a), which
reads:
When an employee who has been receiving or was
eligible to receive L.T.I.P. benefits is able to
return to full-time employment, the provisions of
Article 24 (Job Security), with the exception of
section 24.3, shall apply.
And Article 24 provides for a scheme for the reassignment of
surplus employees.
We heard some evidence concerning a position which was offered to
the grievor in March 1988, but we make no finding concerning whether or
not the Ministry has met its obligations under Article 24. The parties did
not argue the point.
In sum, had the grievor been able to meet the CSC typing standard,
the Ministry would have maintained her in the OAG 3 position and there’d
have been no grievance. She did not meet this standard, she grieved, and
we dismiss her grievance because she is unable to meet the standard.
Done at London, Ontario, this 4th day of July! 1988.
J. W. Samuels, Vice-Chairman
M. O’Toole, Member