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Home My WebLink About1987-2339.Arora.88-08-23ONTARlO EMPLOV~SOEL4 co CROWNEMPLO”EES OEL’ONTARIO GRIEVANCE CQMMISSION DE SET’T;;MENT REGLEMENT DES GRIEFS 180 0”NOAS STREET WEST. TORONTO, ONTARIO. MS.0 US. SUITE21W ,80. RUE D”NOAS 0”E.v TORONTO. ,O”TARIO, MS0 12s _ B”REA” 2100 2339187, 2340187 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: For the Grievor: For the Employer: For the Third Party: Hearing: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Surjit K. Arora) and The Crown in Right of Ontario (Ministry of Environment). Grievor Employer R.J. Delisle Vice Chairman 1. Freedman Member G. Peckham Member A. Ryder Counsel Gowling & Henderson Barristers and Solicitors MS K. O'Shea Counsel Central Ontario Industrial Relations Institute A. Irwin, Systems Officer Ministry of Environment I. Parrish, Systems Officer Ministry of Environment May 18, 1988 DECISION In the fall of 1987 the Ministry ran competitions for two positions: Utility Systems Officer and System Support Analyst. In accordance with Article 4 of the Collective Agreement the positions were duly posted with a return date of September 14. Interviews were conducted on October 20 and 21. The grievor was unsuccessful and filed grievances dated November 20. Those grievances, drafted by the grievor, complained that he had not been afforded an V1egual opportunity to gain experience prior to selection of candidates but, before the Board, counsel for the grievor persuaded us to liberally interpret the grievances and to take them to be complaints that the competitions were not conducted in a manner which satisfies Article 4 in that they were unfair because: . ..insufficient care was taken, in conducting these competitions, to avoid the advantage enjoyed by the successful applicants from their..assignments to the jobs before they were posted. The successful candidates for the positions, Ian Parrish, Utility Systems Officer and Alan Irwin, received notification of the hearing and participated actively before the Board. The positions in dispute were both located at the Lakeview Water Pollution Control Plant. Kenneth Brown, Supervisor of Engineering Services at that plant, des'cribed how the positions came into being. In Decelnber , 1985, the plant took delivery of its first two micro- computers. People at the plant "played around with them" but there was no one on site who had any real expertise. On April 1, 1986, Ian Parrish was hired to a three- month contract to develop applications of the micro-computers to I . 5 y 2 the plant's process. Parrish brought expertise .gained from University courses, programs in computer programming, and experience as a programmer. He testified that when hired he was the only person in the province using micro+m@xrs in Utility Operations. He noted that when he came to the plant he "was a system, up and running... I didn't learn at the plant how to do it, I 'learned how to do it better." Be received no training or courses with the Ministry. He created applications for the micro computer, showed management what the advantages were and trained people in their use. Parrish's contract was renewed by a series of contracts as management was persuaded of the computer's value. Management began to recognize not just the value of the computer's applications but'also the need for someone to maintain the same and they~ became convinced of the need for a full-time position. Brown described then steps taken by management to gain approval for the position, budget submissions made in September, 1986 budgets approved i,n January, 1987, permission to fill on April, 1987, and actually filling the job October, 1987. Brown noted that by the time of the competition "Parrish showed us what could be done - there were then 12 micro-computers." The grievor's complaint with regard to this competition seems to us ,.- fully answered by the decision of this Board in Cooke 0895/85 (Kennedy) and his language we adopt: The .simple issue to be decided on this arbitration is whether or not in evaluating these candidates the Employer was entitled to take into account the qualifications and ability of the candidate Jackie White attributable to the time she had spent as an incumbent in the position as a contract employee. It is our decision that the 3 consideration of such qualification and ability by the Employer in no way contravenes the Collective Agreement between the parties. Article 4 requires the Employer to consider the qualifications and ability of all candidates to perform the required duties and places no constraints as to the basis upon which any particular candidate acquires such qualification and ability. It is not challenged that Miss White was a legitimate applicant for the position, and she is entitled to have her qualifications and ability evaluated as they may exist from whatever source. We would agree with counsel for the Union #at the competition held pursuant to Article 4 must be fair to be valid. However, such fairness cannot justify the rejection of particular qualifications or abilities of particular applicants unless the Collective Agreement so provides, or unless the Employer is in some way acting in bad faith or in contravention of the Collective Agreement in conferring some particular benefit or advantage on a candidate. Each candidate brings to the competition his or her own particular combination of native skill, education and work experience, and is entitled to have all of those aspects considered in the job competition. Only a contractual provision or a situation &are the Employer has improperly conferred a benefit on a particular candidate can justify or require the selection committee from excluding some aspect of a candidate's qualifications and ability. No bad faith can be alleged on the facts of this case, there is no evidence of any impropriety on the.Uinistry's part, and the grievance with regard to this competition is dismissed. The competition for the position of System Support Analyst is somewhat different. A m$i?computer, Sentrol, had been installed at the plant. This was a sophisticated and expensive piece of equipment which was continually breaking down. Though the computer couid properly monitor the process it could not be depended on to actually operate the. system and the Operators preferred to manually control the system. Irwin was a Senior Operator who had developed an interest in computers. In April, 1986 Irwin was assigned extra duties. In addition to his duties as Senior Operator he was expected to work with Sentrol and to 4 encourage other operators to do the same. Management was concerned that an expensive piece of equipment was lying idle and sought to salvage some use. On February 24, 1987 the Employer/Employee Relations Committee met and concern was expressed by Jim Wardi, secretary of the union local: Jim Nardi said that there is a rumor that a position will be created to look after the Supervisory Control Systems and that a person has already been selected for this position. Be said that this person has already been doing the job and he would therefore have an unfair advantage when it comes to interview for the position. Also, he has been sent on a course that it would help him get the position. Doug Lewis (Plant Superintendent) said that Al Irwin has been put on a temporary assignment and has done a good job in helping get the computer into operation. Be found out about a course on his own and that is why he was the first person to .be sent on it. Another employee is also being sent on the course and that if anyone else should . apply and is equally qualified then he could also get sent on the course. John Timko (Systems Manager) said that Al Irwin has shown initiative and that we appreciate employees that show initiative. They are the 'ones that get handed extra duties and it is to their credit that these extra duties may. give them experience that may give them a better opportunity to advance to other positions. At the present time the tiomputer position has not been created but that management is leaning towards creating it. If so then anyone in the South Peel System could apply for the position and that selection would be made in accordance with the normal government selection criteria which is designed to be fair to all. Ken Brown, who was also at the meeting, testified .that indeed .* management was "leaning towards creating" the position .but "hadn't yet decided for sure on the job". They did later decide on creating the job and he drafted the Job Specification for System Support Specialist (Exhibit 12). Brown screened the application5 to see who would be interviewed, prepared the 1 5 interview questions and selection criteria and participated in the interviews. He testified that he tried to make the questions not site specific since he knew there would be applicants from outside the plant and indeed outside the Ministry. Some measure of the general nature of the questions is seen from the fact that Brown actually scored someone from outside the Ministry higher than the successful candidate Irwin: the other two interviewers scored Irwin the highest while all three scored the grievor last. In cross-examination of Brown it was suggested that management acted improperly when, having decided in February that there would be a position and therefore a competition,they failed to give the grievor an opportunity similar to Irwin's to learn the job and gain experience and to go on the same course as Iiwin. Brown'$ response to the suggestion is also our response to .the grievance. It would not‘be logical. The Sentrol system was meant to operate the system. Irwin was a Senior Operator who had the qualifications and expertise necessary to operate the process. The grievor was an electrician in the Maintenance Department. He lacked the qualifications and the expertise necessary to operate the process. The position contemplated was to perfect the Sentrol system,to permit the operation of the .- process,and to encourage other operators in its use. It would not be logical to put the grievor in that position. So too it would not be logical to send the grievor on a course which was expensive and which was unrelated to his then existing work. When regard is had to this job we must not lose eight of the fact that the job is to operate the sewage disposal system through thq .minimmputmand not just to operate a mini-colpputer., Obviously experience gained by Irwin assisted him in the competition but . there cannot~ d& seen to be any impropriety, vie-a-via the grievor, in placing Irwin in the position for an extended period I prior to the competition. The Grievance is accordingly dismissed. Dated at Kingston this 23rd' _~.~ _ day of August, 1988. / I. Freedman Member ,/7 Member