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HomeMy WebLinkAbout1993-2321.Kimel et al.95-07-26 DecisionEMPLOYES DE LA COURONNE Grievance Settlment Board COMMISSION DE SEITLEMENT REGLEMENT . DESGRIEFS ONTARIO CROWN EMPL 0 YEES DE L'ONTARIO 180 DUNDAS STREET WEST SUITE 2100, TORONTO ON M5G 1Z8 180, RUE DUNDAS OUEST; TORONTO (ON) M5G 1Z8 CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD BETWEEN BEFORE : FOR THE GRIEVOR FOR THE EMPLOYER HEARING: TELEPHONEITELEPHONE : (416) 326- 1388 : (416) 326- 1396 GSB # 2321/93, 2322/93 CUPE # 93-67, 93-68 IN THE MATTER OF AN ARBITRATION Under CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEMENT BOARD CUPE 1750 (Kimel/Stasiulis) Grievor - and - The Crown in Right of Ontario (Workers' Compensation Board) M. Gorsky E. Seymour F. Collict Employer Vice-Chairperson Member Member P. Douglas CUPE National Representative E. Kosmidis, P. Hillen Counsel Workers' Compensation Board June 8, 1995 INTERIM DECISION The grievance before us, G.S.B. 2321/93, dated July 5, 1993, was filed by Sid Kimel, who has a seniority date of January, 1975. The statement of grievance provides: As an affected employee, I exercised my priority placement rights, when I applied for the posted position of Modified Work Program Specialist, in the Toronto West Integrated Services Unit. I was denied the job. Article and section alleged violated: Article 5 and any other pertinent articles of the Collective Agreement, and C.E.C.B.A., and any other related legislation. The settlement required was: That I be placed in the position of Modified Work Program Specialist, immediately. Articles of the collective agreement relevant to this decision are : 5.01 When a vacancy of a permanent nature occurs or a vacancy of a temporary nature occurs and is expected to exceed thirty calendar days (for reasons other than vacations) or a new position is created within the bargaining unit, the position will be filled as follows: (a) In accordance with Article 6 Technological and Organizational Change, first consideration will be given to placing employees occupying the same or higher salary classification within the bargaining unit who are affected by organizational or other changes which have resulted, or are likely to result, in a reduction of the workforce. The placement of affected employees shall be on the basis of seniority, provided the employee has the qualifications and ability to perform the required duties in a competent manner or can attain them within an eight (8) month training period. 2 (b) The Employer shall make every reasonable effort to provide suitable alternate employment to an employee who is unable to perform his normal duties as a consequence of injury, illness or advancing years. Where a suitable vacancy does not exist, the matter shall be discussed in the Joint Committee. (C) Subsequent to these considerations, all vacancies shall be posted on designated Boardwide bulletin boards for not less than five (5) working days, except those: (i) which have had a similar posting within the previous three (3) months, in which case the applicants for the previous posting will be considered as applicants for the current vacancy, (ii) vacancies of a temporary nature will only be posted in the geographic location where they occur (Head Office: Downsview Rehabilitation Centre; Regional Office; Area Office) when the vacancy is a result of absences under Articles 16 or 17. All other vacancies will be posted under Article 5.01. Information Offices will be part of the office to whom they report. When a temporary vacancy is filled through the posting procedure as outlined in this article, any subsequent vacancies resulting from the initial vacancy will not be posted. 6.06 Retraining (a) Where, as a result of technological and/or organizational change, an employee’s present position is significantly changed, requiring new or modified skills, such employee shall be provided with the opportunity for retraining. The Employer will provide a period not to exceed eight (8) months for this retraining during which time the employee must acquire the skills required in the changed position. This training shall be at the expense of the Employer, and where practical, take place during normal working hours. _-I_-- ____.________. 3 Where, as a result of technological and/or organizational change, an employee’s position becomes redundant and they are placed in a vacant position under the terms of Article 5.01(a), if necessary, they shall be provided with retraining. This retraining period will not exceed eight (8) months during which time the employee must acquire the skills of the position. This training shall be at the expense of the Employer, and where practical, take place during normal working hours. (C) At any time during the first sixty (60) days of the eight (8) month period set out in (a) and (b) above an employee who requests may discontinue their position and be considered again for placement under Article 5.01 (a). It is understood that each employee shall only be entitled to two (2) priority placements as a result of a technological and/or organizational change affecting the employee’s position. 6.07 Transfer Arrangements An employee affected by technological and/or organizational change who declines retraining when their job is significantly changed, who is unable to acquire the required skills through retraining or whose job is made redundant, shall be given priority consideration for vacant positions under Article 5.01 (a) . This applies to any vacancy in the province. The costs of relocation shall be paid by the employer if there is no alternative position at the current or equivalent salary grade in the same Division, Branch or Regional or Area office or Information Service Office as the case may be. 6.08 Income Protection Where an employee is placed under Article 5.01(a) or Article 6.10 into a position with a lower salary grade than his/her former permanent position, and the employee’s current salary is higher than the maximum salary of the lower salary grade, the employee will maintain his/her salary level, with regular salary increments for a period of two years following which the employee will receive 50% of future pertinent general salary increases or will 4 be paid at the maximum of the lower salary grade, whichever is higher. This Interim Decision deals with a preliminary issue that arose at the hearing as to whether Mr. Kimel, who it was agreed was an affected employee under art. 6.05, and who was entitled to "first consideration" to be placed in a position under the provisions of art. 5.01(a) on the basis of seniority, was, as the Union conteded, automatically entitled to the eight month training period provided for in the latter article, if he lacked the immediate qualifications and ability to perform the required duties of the position, or, as the Employer contended, it has, at the time of considering who is to be placed in the vacancy, the discretion to assess whether the employee entitled to "first consideration "can attain" the requisite qualif ications and ability to perform the required duties of the position "in a competent manner" "within an eight (8) month training period, and, if it concludes that he or she cannot do so within that period, decline to place him or her in the position. In this case the Employer, consistent with its interpretation of art. 5.01(a), denied Mr. Kimel the opportunity to receive training for the position of Modified Work Specialist, because it concluded that he could not be trained so that he could attain the requisite qualifications and ability "within an eight (8) month training period. 5 The position of the Union was that art. 6.06 (b) governs the placement of Mr. Kimel, and that the first sentence of that article refers to art. 5.01(a) only for the purpose of giving management the discretion to decide whether the employee being considered for appointment to the position had the qualifications and ability to immediately perform its required duties: that is, that training was unnecessary because the employee was already qualified to perform it without training. Where it decides that this is not the case, then it was submitted that there was a mandatory duty created by art. 6.06(b) to furnish an affected employee with retraining for up to eight months to see whether he or she could aquire the "skills required to perform the duties of the position" within the eight month period. The Employer was said to "have specifically given up any assessment rights" by agreeing to the language of art. 6.06 (b) . In further support of its interpretation, the Union referred to the provisions of art. 6.07, and emphasized the words "who is unable to acquire the required skills through retraining." It was submitted that the emphasized words indicate that the parties had anticipated that an employee afforded a retraining opportunity under art. 6.06 (b) might be unsuccessful in achieving an acceptable level of competency and have "set out what happens in that event." The submission was repeated in the Union's written reply. In further support of its position (in its original and reply submissions), the Union relied upon art. 6.06 (c) , where an employee 6 given a retraining period of up to eight months (in arts. 6.06(a) and (b)) has "the right" to leave the new position and return to the affected list, "at the employee's option only. We were asked to compare the operation of art. 6.06(c) with art. 5.06 of the collective agreement ("Trial Period: 5.06 Trial Period The successful applicant will be placed in a new position and will be considered to be on trial" for a period of sixty (60) working days. If, during that time, in the opinion of the Employer, the employee is unsatisfactory, or if the employee so requests, he shall be returned to his former salary classification and placed in a position for which he is qualified without loss of seniority. The Union noted that the latter article sets out the more standard" election of either the employee or the Employer to vacate the new position. Art. 5.06 deals with the trial period afforded a successful candidate after job posting. The Union referred to the difference between an employee's option in art. 6.06 (c) and the options of the Employer and the employee in art. 5.06 as supporting its contention that the regime of Article 6 is to give the benefit of doubt to the senior employee and afford them [sic] the best possible opportunity to secure the highest possible paying position. The provisions of art. 6.08 of the collective agreement were also relied upon by the Union as supporting its position because: The affected employee knows that his/her salary will be protected up to a period of two years after which he/she will receive one-half of any general salary increases until the grid catches up to their protected 7 rate. It is then clearly in their economic interest to secure the highest possible position if their current position is declared redundant. It was also submitted on behalf of the Union that article 5 is essentially designed for the situation of promotion" where the "Employer has retained the right to examine candidates in a relative ability competition ( [art. ] 5.05) “ which type of clause afforded a wider discretion than a threshold' type of promotion clause." Mr. Douglas, for the Union again emphasized the Employer's specifically granted right in a promotion case (art. 5.06) to "return a successful candidate to [his] former position during the trial period in the new position." Article 6, in contrast, was said to establish a threshold test where an affected employee able to perform the duties and responsibilities of the position must be placed in it. Affected employees who do not meet the threshold test were said to have an absolute right to receive up to eight months training, and, concomitantly, the Employer is mandated to furnish such training and has no discretion to refuse it on the basis of its opinion that the employee will be unable to achieve an acceptable level of competency within the designated period. The discretion with respect to receiving training was said to rest entirely with the affected employee who could accept or reject it. The distinction drawn by the Union was said to be supported by sound policy reason": 8 The affected employee is not moving up" as in a promotion. They are using their seniority to lay claim to an equal or lower position. From the employee's perspective, they are interested in securing the highest possible position for economic reasons (6.08). From the perspective of the Employer, it is useful to employ the skills of the redundant employee at the highest possible level - rather than be left with an workforce. The Employer maintained that it had the right to assess if an affected employee had the requisite qualifications and ability to perform the required duties in a competent manner prior to placement. The Employer relied on the "plain wording" of art 5.01(a) in support of its position and referred to the word provided in the second paragraph of art. 5.01(a) and to the dictionary definition of that word. Provide is defined as to make a proviso or stipulation ... to have as a condition: STIPULATE ...” (Webster's Dictionary). The use of the term provided signifies that the placement of the employee is intended to be contingent on or subject to the factors which follow that term. Consequently, the placement of an employee can only be made after the Employer has considered whether either of the two subsequent conditions has been met. The Employer must first consider whether the employee has the qualifications and ability to perform the required duties in a competent manner. If so, then the Employer is obliged to place that employee in the position. If the employee lacks the qualifications and ability, the Employer must then consider whether there is a reasonable likelihood that the employee can attain them within the training period. If the Employer determines that the employee cannot attain those skills during that period, there is no obligation on the Employer to place the employee. 9 It is critical to note that the Employer's obligation is only to give "first consideration to the affected employee. Consideration means "continuous and careful thought (Webster's Dictionary). The use of this term cannot reasonably be construed to be mandatory in nature. "First consideration means solely that the affected employee is to be considered for the position within the meaning of Article 5.01 and prior to other employees. It confers no other entitlement. This view is also buttressed by the fact, for example, that Article 5.01(c) states that subsequent to these considerations, all vacancies shall be posted on designated Boardwide bulletin boards...". It is clearly anticipated under the terms of the WCB/CUPE Collective Agreement that there may not be any affected employees who can fill the vacancy within the meaning of Article 5.01 (a). To arrive at a different conclusion would render Article 5.01(c) meaningless, a construction which the Article cannot reasonably bear. In this respect, the clear intention of the WCB/CUPE Collective Agreement is to set up a hierarchy of posting, starting with the affected employee and ending with the general posting to all employees. There is no automatic entitlement to a position at any point along that hierarchy. Counsel for the Employer also argued that Article 5.01(a), as written, focuses on a point in time being that of the vacancy and "it establishes a consideration process to be followed at that time. (emphasis in Employer's submission) . The process, being so focused, was said not to envisage: . . . a process, stretching over potentially several years, during which a series of affected employees have eight months in which to show they can attain the qualifications and abilities to perform the required duties. To argue automatic entitlement to training would possibly lead to a situation where a vacancy could not be filled for well over a year. To provide an example of this absurd result, assume that there are five affected employees, each of whom is given an opportunity to train for the job and each of whom is unsuccessful. This would result in a prolongation of the posting period for up to 10 40 months (5 employees x 8 months) could move to the next step of the the vacancy. This interpretation supported by either the wording of section as a whole. before the Employer hierarchy in filling is one which is not the provision or the If the WCB/CUPE Collective Agreement had intended that the training period be automatically provided to the affected employee, it would have contained an express provision to that effect. For example, it would have stated that the affected employee "must be provided" with an eight (8) month training period. Alternatively, it would have stated that the employee has attained" competency rather than can attain" competency. In addition, it can be argued that Article 6.06(b) does not anticipate that training will even be provided until the steps contemplated in Article 5.01 (a) have been exhausted and an employee is placed thereunder. This is clear evidence of the intention that training is to be provided only after the Employer considers the steps set out in Article 5.01(a) and makes a determination regarding placement. Counsel for the Employer referred to a number of cases in support of its submissions. Re Phillips Cables Ltd. and International Union of Electrical. Radio & Machine Workers, Local 525 (1977) 16 L.A.C. (2d) 345 (Adams, Philips, Knopf-dissenting) provides a thorough review of the cases on this issue. The Arbitration Board considered the grievor's argument that he was senior to the successful candidate in a job vacancy and thus should have received the job. The relevant provisions of the collective agreement are set out below: Article 25.02 The vacancy shall be filled from among such applicants for which the vacancy is a promotion, on the basis of their seniority subject to their capability to perform the work under the provisions of paragraph 25.04. Article 25.04 Employees so promoted shall be given twenty (20) consecutive working days for training purposes, at the end of which time the supervisor concerned will 11 decide whether or not employee is to be retained in the new position .... The union argued that management could assess whether the employee is capable of performing the work only upon completion of the training period. Alternatively, if the company could assess the capability of an employee before providing him with a training period, "it should be able to refuse the training period to the senior employee only if his or her application, even with the benefit of a training period, is patently preposterous or an attempt to put a "square peg in a round hole (page 349). The employer argued that the collective agreement required it to assess the employee twice. The first time was when the application was received, with a view to determining whether the candidate would be capable of learning the job within 20 days. If the employer concluded that the employer [sic] could learn the job, the second time would be at the conclusion of the training period. The Board found that Article 25.04 was not operative until an employee had been promoted within the meaning of Article 25.03. It stated that "if it is thought that the most senior applicant can perform the work or will be able to perform the work after having received the benefit of the training program he or she [is] to be promoted" (page 350). This meant that the company: ... must, in cases where a training programme is necessary, assess an employee's entitlement to a job at two junctures. First, when the application is made initially it must assess whether the employee has the capability of performing the job, understanding that he or she is entitled to a 20- day training programme. In other words, the company must ask itself whether the employee will be capable of performing the job after having had the benefit of a training programme ... Should the company conclude that the employee will be able to perform the job after having had the benefit of the training programme the second point of assessment arises at the completion of the programme when the supervisor is to decide whether or not the employee is to be retained (page 351). . . . ... quite obviously the trade union's interpretation results in a cumbersome process and is potentially a very costly one. . . . It takes very little imagination to visualize situations where a number of the most senior applicants are obviously 12 incapable of learning the job within the stipulated training period and yet the proposed interpretation would require the company to expend the time and shoulder the costs of a series of fruitless training programmes. And all this to the prejudice of other applicants who must await the passing of a futile exercise. In my opinion, such a result should only flow from the most explicit language . . . Indeed if the meaning of para 25.03 were as the union contends it should simply have provided that the senior applicant for any job would be trained for it (pages 352-3) The wording in the collective agreement in Phillips Cable lends itself far more readily to an argument that the training must be automatically provided than does the wording in the WCB/CUPE Collective Agreement. Nonetheless, the Board vigorously rejected the argument that the employee is automatically entitled to a training period. It concluded that the employer was entitled to assess whether the employee would benefit from that training period prior to placement in that training period. The Board in Phillips Cable also found that the length of a trial/training period may be a factor in interpreting entitlement to the period. It referred to a case in which a 3 day training period was given to an employee and commented: . . . the disruption of an unfettered employee’s access to [the training period] would not be as great. For this reason, it is not as easy to conclude that an unfettered senior employee’s entitlement is an unlikely result of the parties’ intent and thus an arbitrator could be justified in not demanding as explicit language as I have in this case. (page 361) In the WCB/CUPE Collective Agreement, the training period is eight (8) months, which is a significantly longer period than that considered even in Phillips Cable. On the basis of the duration of the training period alone, only unequivocal, unambiguous language could lead to the conclusion that the training was intended to be provided automatically. Article 5.01 does not contain such express language and thus cannot be construed as providing automatic entitlement to that training period. Further, from pp. 8-9 of the Employer’s submissions: 13 In Re Andres (B.C. ) Ltd. and United Brewer Workers, Local 300 (1984), 14 L.A.C. (3d) 238, the Arbitration Board considered a competition where the successful candidate had less seniority than the grievor. The collective agreement provided that vacancies or new positions shall be filled by the applicant who has the most seniority, providing he shows willingness and incentive and is capable of doing the workf (Article 3.11). Article 3.12 provided that the selected applicant was to be provided with a 30 day trial period to prove his suitability. The union argued that if the grievor met the threshold requirements of the position, he should be given the 30 day training period. The Panel found that: ... in the absence of express words, where a collective agreement qualifies a senior employee's entry into a trial/training programme by reference to skill, ability, capability or qualifications, he will be entitled to it only where on the evidence it is reasonably likely that he will be able to become fully functional in the job within the time provided. (page 249) The majority of the panel concluded that the grievor was not entitled to a trial period under Article 3.12 since it was convinced that on the evidence it was not reasonably likely that he would become fully competent during that time. As in Phillips Cable, the wording in Andres Wines lends itself far more readily to an argument that the training must be automatically provided than does the WCB/CUPE Collective Agreement. Nonetheless, the Panel clearly indicated that the only reasonable interpretation of the collective agreement was that the employer is to assess the employee prior to placement in the training program. The Board agrees with the statement at p. 245 of Andres: Although the jurisprudence on this subject appears to be confused and complex, in fact it is not wholly irreconcilable. In fact, the board in Phillips Cables did an admirable job in that respect if not by weaving a consistent thread, at least by distinguishing them. In Andres, after reviewing the jurisprudence, the board summarized their conclusions, at p. 249: To summarize then, what Phillips Cables did was to recognize that it is entirely possible for parties to a 14 collective agreement to expressly provide for mandatory trial/training periods to senior employee without more. However, in the absence of express words, where a collective agreement qualifies a senior employee’s entry into a trial/training programme by reference to skill, ability, capability or qualifications, he will be entitled to it only where on the evidence it is reasonably likely that he will be able to become fully functional in the job within the time provided. It rejected that the decision is to be made by the employee. In effect, it decided that the jurisdiction of an arbitration board in that respect is not limited to a determination of whether the subjective assessment of the employee is bona fide held but followed the Great Atlantic line of authority that no such limitations should be implied [Re Great Atlantic & Pacific Co. of Canada Ltd. and Canadian Food & Allied Workers, Local 175 (1976) , 13 L.A.C. (2d) 211n, 76 C.L.L.C. para. 14,056; affd L.A.C. loc. cit.] A collective agreement is to be enforced according to its terms. In that context, the distinction urged by counsel for the union in this case is immaterial. The rule is that where a trial or training period is required to be given to the most senior applicant subject to ability or capability, he is to be given that trial or training if there is a reasonable likelihood that he could become fully functional within the time provided. Even where the word capalbe is used it will not be sufficient to demonstrate mere aptitude but that the employee will in all probability qualify during the trial/training period. Any other conclusion would have the effect of extending the period. The more recent consensus found in the jurisprudence is also summarized in Brown and Beatty, Canadian Labour Arbitration. 3rd ed. para. 6:3230: Even when a provision in a collective agreement specifically provides for some training or a trial period, it has usually been thought that this is not an unqualified right. ... More generally, where it could be established that an employee was incapable of performing the tasks associated with the position claimed, viz., that she did not possess the capability for doing it even after a period of ... training, arbitrators have confirmed management’s prerogative to deny her the benefits of those training . . . periods. In those circumstances, and depending upon the language used, where the agreement provides for such training or trial 15 periods, arbitrators have usually required the employer to make an evaluation of the applicant's qualifications both before and after the trial or training periods.. . . It is significant that Brown and Beatty do not differentiate between cases where a trial or a training period is provided. That is, there is no special significance to be attributed to the training period being associated with a competition case or with a case such as the one before us. If the parties intended to impose a mandatory duty on the Employer to give the senior affected employee a training period of up to eight months to attain the necessary qualifications and ability to perform the required duties of the position in a competent manner, they had to express their purpose in clear language. A collective agreement is entered into in the context of an existing body of jurisprudence. For a party to overcome an arbitral consensus it must see to it that appropriate, clear language is agreed to. The reference made on behalf of the Union to art. 6.07 does not affect the application of the general rule. All it says (in that portion relevant to this case) is that where an affected employee is unable to acquire the skills through retraining," which in the circumstances there described must mean within the eight month period, he or she is to be given priority consideration for other vacant positions under article 5.01 (a) . Article 6, 07 I__....._ .I 16 says nothing about when the assessment is to be made, so as to indicate a departure from the usual rule. Nor does the reference made on behalf of the Union to art. 6.06(c) alter the usual rule, as it does not state that the affected employee has a mandatory right to retraining. It only gives the employee an earlier opportunity to discontinue the retraining period once the period has commenced. Consistent with the rule, the Employer, once it has considered the relevant facts and afforded the retraining opportunity to the affected employee, must give that employee the entire period of eight months retraining to achieve competence within the meaning of the second paragrph of art. 5.01(a) paragraph. Although there is an economic interest under art. 6.08 for an affected employee to secure the highest possible position if his current position is declared redundant, this does not amount to a clear indication that such employee has an right to request and be granted up to eight months retraining, with the assessment of competency to take place only after retraining. We cannot agree with the submission of the Union that the because we are dealing with a threshold of competency case the Employer has accepted the obligation to afford affected employees the retraining opportunity provided for in art. 5.01(a). We have 17 already dealt with argument made as to the effect of art. 6.06(c) in this regard. Although we agree with Mr. Douglas' submission that it is, from the Employer's perspective, useful to employ the skills of the redundant employee at the highest level - rather than be left with an underemployed' workforce, this cannot alter the application of the usual rule when the language of the collective agreement does not support the Union's position. Furthermore, it can be argued that it is also important to the Employer that it should not have to assume the expense and innef iciency of affording eight months training to a redundant employee where the evidence indicates that he or she will not be able to aquire the qualifications and ability to perform the duties of the position in a competent manner with up to eight months training. In the Union's written submissions (original and reply) emphasis was placed on the fact that we are not dealing with a promotion competition, and that art. 6.06 (b) provides for retraining and not training and that the operative clause for the grievor is 6.06(b)I1 (see reply submissions of Union, at p.1). We cannot agree with the Union's reply submission (at p. 4) that art. 6.06 (b) provides for "mandatory retraining if necessary, if there exists a vacancy identified throush [art. ] 5.01 (a) . (Emphasis in the Union's reply submissions.) Art. 6.06(b) is explicit in stating when it only operates: when the affected 18 employee is "placed in a vacant position under the terms of Article 5.01(a) .” Article 5.01(a) and not art. 6.06(b) governs the circumstances in which an affected employee becomes entitled to a training opportunity of up to eight months. It refers to first consideration being given to affected employees for placement in the position, and placement is not stated in imperative language so that the right to be placed in the position with up to eight months training is automatic once seniority is established. Because of our conclusion, the retraining referred to in art. 6.06 (b) can only mean the same thing as the training period referred to in art. 5.01(a). (We also note that art. 6.06(b) not only refers to retraining" but in its last sentence uses the word "training. Article 6.06 (b) does not say under what circumstances an affected employee will be given retraining, but specifically states that the placement of the employee will be under the provisions of art. 5.01(a). Rather than being the operative provision that determines the circumstances under which an affected employee will receive a training opportunity, art. 6.06(b) has the function of explaining, in slightly greater detail than art 5.01(a), that an employee placed in the position on a retraining basis, has up to eight months to "acquire the skills required to perform the duties of the position. It also indicates who pays for the training, and when it is expected to be conducted. 19 For all of the above reasons we have concluded that affected employees do not have an automatic right to the training period provided for in art. 5.01 (a), which, as art. 6.06(b) makes clear, is the article that governs whether such employees will be placed in a vacant position. If clear language had been employed giving affected employees an automatic right to the eight month period of training/retraining if they did not have the present qualifications and ability to perform the required duties, it would not matter that the consequences of such an interpretation led to a situation that the parties would not likely have intended. There are many reasons why parties to a collective agreement agree to certain articles: bargaining power; willingness to acceed to a demand in one area in order to achieve benefits in another, and arbitrators should not lightly interfere with the clear language in their agreement. In Andres, at p. 213, reference was made to the argument of counsel for the Union that the Phillips case ought not to: be accepted as authoritative on this point since the decision in that case was based upon consequences rather than rights. The arbitration board in that case found that it was unlikely that the parties would have intended a prolix appointment procedure involving the rotation of senior candidates through a succession of trial/training periods. She said the board ought to have concentrated on what the collective agreement actually provided. Under this agreement, if the grievor meets the threshold requirements of the position, he should be given the 30- day trial period: Re Inglis Ltd. and U.S.W., Local 4487 (1977) 15 L.A.C. (2d) 227 (O’Shea) Where the language plausible interpretations surrounding circumstances 20 of an agreement is unclear and two are before a board, it can consider the that would be known to the parties when they negotiated the provision(s) to be interpreted. In this case, as in Phillips, at p.352: Quite obviously the trade union's interpretation results in a cumbersome process and is potentially a very costly one. Moreover, as I have said, the submission that only a latent faculty need exist at the end of the 20-day training period goes against the fact that the parties have specifically limited the training period to 20 days. It takes very little imagination to visualize situations where a number of the most senior applicants are obviously incapable of learning the job within the stipulated training period and yet the proposed interpretation would require the company to expend the time and shoulder the costs of a series of fruitless training programmes. And all this to the prejudice of other applicants who must await the passing of a futile exercise. In my opinion such a result should only flow from the most explicit language. Although we have ruled that there is no mandatory obligation on the Employer to afford the up to eight month training/retraining opportunity sought by the Grievor, we still have to deal with the issue of whether the Employer properly carried out its obligations under the collective agreement when it decided that Mr. Kimel would be unable to attain the qualifications and ability to perform the required duties of the Modified Work Program Specialist in a competent manner within an eight (8) month training period" as provided for in art. 5.01 (a). Al though we find that the Emp 1 oyer does not have an unfettered discretion to deny training to an affected employee, we cannot accept the Union's suggestion that the Employer has a mandatory obligation to provide up to eight 21 months training/retraining to the senior affected employee who requests it. We emphasize that we are not dealing with an either (complete and unfettered discretion) or (mandatory duty) situation. The Employer has discretion, but it is not unfettered. It must be exercised taking into consideration all relevant information that is reasonably available to it concerning whether the affected employee has the qualifications and ability to immediately perform the required duties of the position in a competent manner, and if not, whether he or she can attain them within an eight month training period. It must not consider irrelevant evidence, and if it does, it must be clear that such consideration did not influenced its decision. It must act in good faith, and its decision must be one that could have been reasonably arrived at by an employer relying on the relevant evidence before it. There is no reason for the Employer to be put to a greater or lesser test. We wish to thank all counsel for their carefully prepared and thoughtfuly presented submissions, which were extremely helpful to us. Dated at Toronto this 26th day of July, 1995. M. Gorsky - Vice Chairperson “I Dissent" (dissent attached) Ed Seymour - Member 22 G.S.B. File 2321/93 CUPE Local 1750 (Kimel Stasiulis) - and - THE CROWN IN RIGHT OF ONTARIO (WORKERS' COMPENSATION BOARD) DISSENT Edward E. Seymour I have read the Majority Award on this preliminary issue and, with respect, I must dissent. In the Award, the Majority (at page 15) state: "If the parlies intended to impose a mandatory duty on the Employer to give the senior affected employee a training period of up to eight months to attain the necessary qualifications and ability to perform the required duties of the position in a competent manner, they had to express their purpose in clear language. “ It is difficult to imagine how the language could be made clearer. the first paragraph of Article 5.01 (a) reads: "In accordance with Article 6 Technological and Organizational Change, first consideration will be given to placing employees occupying the same or higher salary classification within the bargaining unit who are affected by organizational or other changes which have resulted or likely to result in a reduction of the workforce. “ There is no qualifying language in this paragraph. First consideration "will be given", not "may be given." The second paragraph of Article 5.01 (a) is equally clear: Page 2 "The placement of affected employees shall be on the basis of seniority, provided the employee has the qualifications and ability to perform the required duties in a competent manner or can attain them within an eight (8) month training period. “ The employee will be placed if he/she can do the job or can obtain the qualifications within an eight (8) month training period. The Employer, in its own submission, agreed that if the employee can do the job , he/she would be placed in the position immediately. At page 4 of its submission, the Employer correctly I contend, states: "The Employer must first consider whether the employee has the qualifications and ability to perform the required duties in a competent manner. If so, then the Employer is obligated to place that employee in the position. “ In the absence of any language to the contrary, the same obligation extends to the Employer's requirement to provide training to an affected employee who cannot perform the job immediately. I am in agreement with the Union's argument at page 2, which states: "There is no room for the "employee's discretion" with these mandatory requirements. " I am also in agreement with the Union's position stated on Page 5: "The Employer has retained their right to examine candidate in a relative ability competition (5.05) and with the type of clause their discretion is wider than with a "threshold" type of promo- tion clause. Further, the Employer, in the case of a promotion, retains the right to return a successful candidate to their former position during the trial period in the new position (5.06). "The Employers' and employee's rights are distinctly different in Article 6. When it comes to an employee whose position has been declared redundant, if that employee is immediately capable of Page 3 performing the requirements of a position that becomes vacant they are placed in that position (5.01 (a) ) . There is no "relative ability" competition in this circumstance - it is a clear case of establishing threshold competence. If, on the other hand, the redundant employee cannot perform the vacant position immedia- tely, the Employer has accepted the obligation to train them for up to eight months. There is no discretion accorded the Employer, during the training, to remove the employee (6.06 (c) ) . That election is solely up to the employee. “ There is no language anywhere in Article 5.01 which places a lesser obligation to provide training to an affected employee without the competency at the outset than there is to place an affected employee with the competency in the job immediately. The first paragraph in 5.01 (c) gives first consideration to the affected employee; the second paragraph (1) places the employee in the position if he/she can do the job immediately; and (2) provides for training if he/she can do the job within eight (8) months. These two obligations are not only contained in the same Article, but in the same paragraph, and should be complied with before Article 5.01 (e), which addresses "posting vacancies" can be applied. For these reasons, I would have ruled that the Employer's obligation to provide re-training in the circumstances of this case is a mandatory requirement. : Edward E. Seymour, Union Nominee opeiu:343 \ kmls tsls . ds t