Loading...
HomeMy WebLinkAbout1994-1586.Durant&Evans.96-05-30ONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT EMPLOY& DE LA COURONNE DE L’ONJARIO COMMISSION DE REGLEMENT DES GRIEFS 180 DUNDAS STREET WES’I; SUITE 2100, TORONTO ON MSG 7za 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 128 TELEPHONEIT&L~PHONE : (476) 326-7388 FACSIMILElTiL~COPIE : (416) 326- 1396 c GSB # 1586/94, 1587194 OLBEU # OLB192/94, OLB195/94 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Durant/Evans) - and - Grievor The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: FOR THE GRIEVOR FOR THE P. Murray EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARING N. Dissanayake Vice-Chairperson E. Mitchell Counsel Koskie h Minsky Barristers & Solicitors September 6, 1995 February 20, 21, 1996 March 20, 21, 22, 1996 2 DECISION Two individual grievances filed by Mr. Jim Durant (File 1587/94) and Mr. Mel Evans (File 1586/94) respectively, as well as a group grievance (File 1512/94) were scheduled to be heard before the Board. At the outset, on the agreement of the parties the group grievance was adjourned sine die. The two individual grievances arise out of a job Senior Security Officer positions at the LCBO Warehouse in Oshawa, Ontario. The successful Domenic Roti and Mr. Francesco Cabarle were this hearing, but neither chose to attend. posting for two Durham Regional candidates, Mr. given notice of The grievor's claim that the employer contravened the collective agreement by denying them an interview. By way of remedy, they seek a direction that they be awarded the Senior Security Officer positions with compensation for all losses, or alternatively a direction that the competition be re-run. The collective agreement provision governing these grievances reads: 21.5(a) Where employees are being considered for promotion, seniority will be the determining factor provided the employee is qualified to perform the work. The job posting, which was open to all full-time and casual employees at the Durham Regional Warehouse, as well as surplus employees outside, reads: 3 Durham Regional Warehouse requires two (2). security personnel to provide and ensure the security and safety of Warehouse staff, product .and property. Duties shall include; patrolling areas both inside and outside of the warehouse; report any safety/security deficiencies; opening and closing gatehouse and gates at the beginning and completion of each shift; logging in and out of all personnel; ensuring that all loaded trailers are locked and sealed; monitoring all alarm systems through panels, passwords, printouts and manual shunts; maintaining a daily log and memory book of security staff on duty, exceptional circumstances, calls to police, and any goods/material taken outside the premise, monitoring the security system for deviations from normal operation and notifying appropriate personnel; performing after-hours reception function and training and general supervision of contract security staff. QUALIFICATIONS: Tact and diplomacy is essential in handing potentially difficult situations. Experience in a security environment preferably within warehousing and familiarity with patrolling techniques and report writing. Excellent communication and interpersonal skills are required as is the ability to perform security foot patrols (climbing stairs) and to handle critical emergency situations such as plumbing, electrical and fire problems. Incumbents must be available to work shifts, weekends and holidays as required and must possess a valid Class rcGfl Ontario drivers license. EMPLOYMENT EQUITY: The Liquor Control Board of Ontario is dedicated to achievins and maintaininq a workforce that reflects population. We encourage qualified candidates: OntarioIs diverse applications from 0 PLEASE NOTE: A Q-35 form and resume with your department insurance number and must be submitted number, social the appropriate posting number accurately recorded and indicating current employment status, e.g. PFT or, in the case of employees eligible under Article 5.13, PPT, Casual or Recall. 4 Past satisfactory work performance and attendance will be considered in determining the successful candidate. Qualified candidates will be selected in accordance with the procedures in Article 21 of the Collective Agreement. A circular will be issued announcing the successful candidate. In total ten applications were received, all from employees within the warehouse. Out of these, only the two grievors were permanent full-time employees. The rest were casuals. The posting closed on February 25, 1994. On March 3, 1994 Mr. John Harris, Human Resources Advisor, reviewed the ten applications and "screened out" all but the two incumbents Roti and Cabarle. Only Roti and Cabarle received interviews which were held on May 13, 1994. The results, announcing the appointment of Roti and Cabarle were posted on July 27, 1994. The two new appointees assumed their positions on August 22, 1994. The parties agree that article 21.5(a) is a "threshold ability" or t'sufficient ability" clause, as opposed to a llcompetitionll or Velative ability" clause. They therefore agree that the two grievors, as the only two permanent full- time applicants, had the highest seniority and that pursuant to article 21.5(a) they would have been entitled to the positions, provided only that they were "qualified to perform the work". 5 The inquiry then must focus on whether the grievor's had the ability and qualifications to perform the Senior Security Officer job, rather than on their ability and qualifications relative to the other applicants. The union does not challenge the reasonableness or legitimacy of any of the qualifications set out in the job posting itself. The challenge rather is as to the manner in which the employer applied those qualifications to the grievors. The person who Ifscreened out" the grievors and denied them interviews was Mr. Harris. The screening guide he used was filed in evidence. It lists six qualifying factors: 1. Security experience (preferably within warehouse environment). 2. Familiarity with patrolling techniques and report writing. 3. Ability to perform security patrols. 4. Ability to handle emergency situations. 5. Availability for week-ends, shifts and holidays. 6. Valid Drivers licence ffG1l. Mr. Harris testified that he reviewed each application and graded each of the factors with a ffYff (yes), lrNfl (no) or IIMII (marginal). Mr. Harris testified that a tfYtt denoted that the factor was clearly met, an ffNff meant that it was clearly not met and that an ffM'f meant that the factor Itmay be" met, 6 but it was questionable. No specific cut-off point was established such as maximum number of Ns.or Ms or a minimum number of ys. Mr. Harris testified that he concluded that only the 2 incumbents'passed the screening and only those 2 were interviewed. Durant was marked as flmarginalff for factors 1, 2, 3 and 4, and as ffyesff for factors 5 and 6. Under the ffcommentsff section, Mr. Harris wrote If? security experience ? ability to perform patrols WCB etc)". Under the column titled ffQualifiedff, while all of the other applicants were marked with a ffyff or ffnff indicating Ifyesff or Ifnoff, a question mark was placed for each of the grievors. Mr. Harris testified that he marked Durant's qualifications relating to security experience (Factor 1) as marginal because tfwhile his resume mentioned that he worked in security for two different companies between 1980-84, there were no details about what he did." Durantls resume included the following 'l1980-1984 - worked in security for Pinkertons in British Columbia, worked in security for City Pontiac-Buick in TorontoI'. With regard to Factor 2, Mr. Harris testified that he gave the benefit of the doubt to Durant and marked him ffmarginalff because It since he had done some security work 7 there was the implication that he may have done some patrolling and report writing“. With regard to Factor 3, Mr. Harris testified that he marked Durant ffmarginalff, because he had a concern about his ability to do patrols "based on my knowledge of his WCB history". The reason for the ffmarginalff mark for Factor 4 was stated to be Durantls WCB history and Mr. Harris' concern as to "how quickly he can react in an emergency or to remove a personIf. With regard to his tfcommentsUt, Mr. Harris testified that he questioned Durantls security experience since no details were provided as to what specific security duties he performed, and that he questioned his ability to perform patrols because he was aware that in January 1994 Durant had suffered a WCB injury and was off work at the time, although declared fit to return to work on March 21, 1994, under a number of physical restrictions. Mr. Harris testified that he was also aware that Durant had a poor discipline record, and that given the nature of the offences and the type of position Durant had applied for, he decided not to proceed any further with Durant's application. Similarly, Mr. Harris testified that Durant had a poor attendance record, indicating an absenteeism rate which was higher than the average for the warehouse. 8 With regard to grievor Mr. Evans, Mr. Harris ga've the following explanations for grading him.ffmarginalff for factors 1 to 4. Factor 1 - "because while his resume mentions security it did not detail what his exact experience wasI'. Factor 2 - Mr. Harris testified that the reason for the ffmarginalff grade was the same as for Durant, i.e. that since Evans had worked in security, there was an implication in the resume that he may have done some patrolling and report writing. Factor 3 - "because of his WCB history, his physical ability was marginal." Factor 4 - "because it was questionable what he could do physically in an emergency, if he had to move equipment or peopleff. Explaining the ftcommentsff he wrote about Evans, Mr. Harris testified that he questioned his security experience because no details were provided and that he also questioned his physical ability to perform the job because of Evans' WCB history. He testified that at the time Evans was still on modified work, with a number of medical restrictions. The union submits that the employer in effect conducted the screening process as if it was governed by a competition or relative equality clause. Counsel points out that in the screening process the grievors did not have a single ftnoff grade. They had only ffyesft grades and ffmarginalff grades, which Mr. Harris admitted was an indication that the grievors "may be" qualified with regard to the factors in question. 9 Counsel further points out to Mr. Harris' testimony under cross-examination that following the screening process, he had concluded that it was l'questionableff whether the grievors were qualified. He had not'concluded at that point, that they were definitely not qualified. This, she points out, was consistent with the “may bells and the question marks assigned by Mr. Harris to the grievors. Counsel points out that Mr. Harris did not bother to inquire any further in order to clarify the questions he had about the grievors, for example by requesting a current medical report on the grievorsl fitness, based on a job specification for the Senior Security Officer job, or by inquiring from the grievors what specific security experience they had gained in the security jobs they had mentioned in their resumes. Counsel submits that Mr. Harris did not do so, only because he was impressed by the qualifications of the two incumbents which he felt were far superior. Having found two superior candidates, he did not bother to ascertain whether the grievors were in fact qualified. Counsel submits that Mr. Harris did not make a proper assessment of the grievor's physical ability to perform the duties of the posted position. Instead, he relied on medical reports which were issued by the doctors with regard to Counsel submits that the restrictions placed on the grievors 10 with regard to the modified work would not necessarily have applied to the Senior Security Officer job. Counsel further submits that Mr. Harris improperly relied on medical information which was on file, eventhough that information was not up to date. She points out that medical conditions are constantly changing and that Mr. Harris did not have any medical evidence as to the grievor's condition as of the time he went through the screening process. With regard to Mr. Durant, counsel submits that his discipline and attendance records were not raised at any time as a reason' for the denial of an interview. Those were not considerations in the screening process, which Mr. Harris testified was determinative of whether an applicant received an interview. Nor was discipline and attendance offered as a reason during the grievance procedure. Relying on jurisprudence relating to changing of grounds in discipline cases, Counsel submits that the employer should not be allowed at arbitration to rely on grounds which did not form part its consideration in the actual decision-making process. With regard to Mr. Durant's attendance, counsel relies on RE Martin _(OPSEU) and Ministry of Health, (1993) 31, 1.a.C. (4TH) 129 (G.S.B. - Dissanayake) to argue that since many of Mr. Durant's absences were due to compensable injuries, it would be contrary to the Human Rights Code and article A.l, to 11 consider those absences in a job competition to Mr. Durant's detriment. Counsel also made‘a "bad faith" argument, that Mr. Harris had a desire to favour the two incumbents, and therefore came up with unfounded reasons for denying interviews to the two grievors. On the basis of the evidence, it is clear that the first time the employer communicated to the grievors the reasons for not granting an interview was during the grievance procedure. Based on Xr. Harris' notes, the Board finds that during a grievance meeting on April 6, 1995, Mr. Harris used the term 'Iwork recordIf in describing his concerns about Mr. Durantls suitability. However, it is undisputed that even at that point no reference was made to the terms ltdisciplineft or lfattendancetf. Ms. Jean Chayhowsky, union representative, as well as Mr. Durant himself, testified unequivocally that they did not in any manner understand Mr. Harris as stating at the meeting that he had relied on Durant's disciplinary or attendance records. As far as they were concerned those were raised for the first time at the arbitration. On the basis of the evidence, I find that Mr. Harris did not communicate to the grievor or the union that either discipline or attendance was a reason for denying Durant an interview. Firstly, the terms ffdisciplineff and @fattendanceff were well known to Mr. 12 Harris, who was experienced in the human resources field. If Mr. Harris intended to communicate those.as reasons for his decision, it is likely he would have used these simple terms. While tfwork record" may be said to encompass discipline and attendance records, Mr. Harris' own notes indicate that the phrase was used in the course of a discussion about the employee's medical and physical condition and WCB injuries. The notes indicate that discussions occurred about any concerns raised by Mr. Harris, namely the physical/medical ability, security experience and an issue about a security licence. However, the notes do not indicate any discussions occurred at all about discipline or attendance. If Mr. Harris had raised the+issues of discipline and attendance, it is improbable that there would be no discussion at all about those issues. The employer, relying on Re Reitsma, 93/89 (McCamus) and Re Sinsh, 2078/96 (Dissanayake) takes the position that a finding that the employer did not rely on discipline and attendance as a reason prior to arbitration does not in any event preclude it from raising those issues at arbitration. Counsel points out that the job posting explicitly states that "past satisfactory work performance and attendance will be considered in determining the successful candidate". 13 The Board agrees, and the union does not take issue, that the employer was entitled to consider Durantls past disciplinary record and his (non-WCB) absenteeism record in the screening process. ‘However, the Board concludes, based on the screening guide and Mr. Harris' notes of the grievance meeting, that discipline and attendance were not in fact part of Mr. Harris' screening process and were not put forward as reasons for the denial of an interview to Durant at any time prior to arbitration. Mr. Harris testified that the screening guide process he went through for each applicant was determinative of whether the applicant received an interview. The screening guide did not include either discipline or attendance among the factors reviewed. Mr. Harris noted comments about his concerns about Durantls security experience and his physical and medical fitness, but none about his discipline and attendance records. The Sinsh and- Reitsma decisions (sunra) dealt with objections by the employer that the union had changed the nature of the grievance. The principles in those cases may be usefully applied to a case like this where the roles are reversed, but only if there is a parallel. In my view, this case is distinguishable from Re Sinsh and Re Reitsma . In @ Reitsma at p. 11 the Board observed: It is entirely within the spirit of the mechanism set forth in the collective agreement that lawyers may not become involved in the process until its later stages. Accordingly, it is 14 consistent with that general structure that the gravamen of the Union's grievance may be put forward at the arbitration stage within the framework of a legal analysis or argument that may not have been precisely formulated by the Union's representatives at earlier stages in the process. It is therefore necessary to distinguish, then, between the kind of fundamental change in the nature of the grievance that engages the line of jurisprudence set out above with the result that the grievance must be dismissed and the introduction of legal arguments and analysis. In rejecting the employerIs objection at p. 12, the Board described what occurred in that case: To be sure, the Union's view of the kinds of arguments that need now to be made in support of that alleged violation of the Agreement,. have altered. They have altered, however, in the light of factual circumstances that became known to the Union only by the time that the matter. had been scheduled for a hearing before this Board. That is to say, as far as the information before us indicates, the Union did not have available to it copies of the job descriptions in question until that point in time. In Re Sinqh at p. 12 the Board gave its reasons as follows: After the completion of the grievance procedure, the grievor sought legal advice in preparation for the arbitration hearing. Counsel concluded that an alternate legal argument based on the principle of Ifadverse effect discrimination“ was available to the grievor. What was Ifnewt in ' the March 22 letter in our view was the raising of an arsument that the policy was itself discriminatory because of the discriminatory results of its enforcement. In our view, the fact that this argument was not raised nor addressed during the grievance procedure does not preclude it being raised at arbitration. The concept of “adverse effect discriminationtf is a technical and legal concept, which a lay-person cannot reasonably 15 be expected to raise. In our view the rasing of this new argument by counsel at arbitration does not amount to a fundamental alteration of the grievance itself. Consequently it cannot be said the grievor was now attempting to litigate a new grievance. c It is apparent that in those cases what the union changed was the nature of the legal arguments in support of the grievance. In Re Reitsma, the Board found that the expanded facts the union relied upon as a basis for the new legal argument were not available to it prior to arbitration. In contrast, here what is being changed is not a legal argument but a issue of fact. The employer did not rely on discipline or attendance at the screening for interviews. Now it is asserting that the denial of an interview was justified because of the grievor's discipline and attendance records. Unlike in Re Reitsma, the factual information now relied on by the employer was available to it during the screening process if it wished to use-them. But it chose not to. As a result during the grievance procedure there was no opportunity to discuss those issues, for example, as to how much of the absences was WCB related and whether the employer was entitled to rely on those. The Board therefore finds that the employer is not entitled at arbitration to put forward Durantls discipline and attendance records as reasons for denying him an interview, when those issues formed no part of the decision. 16 That leaves the issue as to whether the employer was entitled to deny the grievors an interview on the basis of the reasons it actually considered, namely, their physical ability to perform the duties of the posted job and the sufficiency of their security experience. The Board notes that the union did not question that physical ability and security experience were legitimate considerations. While Mr. Harris was questioned in cross-examination as to whether he considered accommodating the grievors I disabilities, the Board notes that no argument was made that the employer had contravened the Human Riqhts Code by failing to accommodate. Rather, the union's position was that the employer wrongly concluded that the grievors lacked the required level of physical ability. In other words, the contention was that despite their injuries, the grievors were able to perform the duties of the posted job adequately. Securitv Experience- The employer submits that neither grievor's resume disclosed the extent of their security experience, particularly whether they had experience in patrolling and report writing. It is the employer's position that Mr. Harris was entitled to rely solely on the information in the resumes and that he had no obligation to make any further inquiries. Reliance is placed on Re Workers Compensation Board of B.C. 17 and Workers Compensation Board Emnlovees Union, Unreported February 1, 1984 (Hope) and Re Tullv, 1622/87 (Kirkwood). In the former 'case, the job posting required "an extensive knowledge of logging and sawmill operations". The grievor's application did not disclose any knowledge of logging and sawmill operations. He was denied an interview. The Board at pp. 19-20 held: In our view this grievance is answered by the fact that the grievor failed to assert qualifications required for the position. The Union argued that management was obligated to go searching to determine whether the grievor possessed qualifications not revealed in his application or his personnel file. We do not agree. Obviously management cannot blind itself to qualifications possessed by an internal applicant, as was found to be the case by Prof. Weiler in the earlier decision with respect to this grievor. But no employer can be expected to go searching for qualifications as opposed to giving a fair assessment of qualifications which are proffered by an applicant. In this case the WCB was not unreasonable in fixing hands on experience in the logging and saw milling industry, or its equivalent, as a necessary qualification for the position. Nor was manacfement unreasonable in its conclusion that the successful applicant was better qualified in that resard than the srievor. The grievor revealed no direct experience in his application, nor was any such experience recorded in his personnel file. When the grievor spoke by telephone with Mr. Allerdyce he mentioned some limited experience in the saw milling industry he obtained as a part-time employee during high school. The measure of that experience can be taken from the fact that the grievor, in a careful and detailed summary of his job experience which was incorporated in his initial application to the WCB in 1972 he did not mention his part-time experience. (Emphasis added) 18 In Re Tullv, at pp. 11-12 the Board observed: By relying on the written material presented by the applicant in every case, the, employer was looking at the applications in as objective manner as possible. Outside material and contacts by their nature are variable in quality and quantity, and had the employer investigated all the outside sources for references to flush out further qualifications of all the applications, he could easily be subjected to criticism for not handling the applications in an even manner, notwithstanding, a desire to do so and deliberate action to do so. Furthermore, as it is a competition, if it appears from the applications that there is a reasonable pool of people who meet the qualifications that the employer requires, the employer does not at this stage have to make further investigations. There is also an obligation upon an employee responding to a job posting to set forth in his application, resume and covering letter those qualifications which he or she has which best meets the qualifications described in the job posting as best as the applicant can, as the nature of the hirins procedure is a competition between applicants. The employee is at his peril if he does not provide sufficient detail, as the employer is not under the obligation to interview all applicants to allow each applicant to develop his resume. In this case, the grievor certainly was not inexperienced in applying for jobs. He had made applications almost every year in which he was in the Ministry, up to three months before this application. In addition he had acted as a union president for three years and was experienced with job competitions and acknowledged that he knew about the job competition process and what was required in competing for a job. Even though he was not warned specifically to forward as complete a resume as possible, he was still aware from his previous experience as a union president that it was a competition, and that it was incumbent on the applicant to be able to show that he or she is best suited for the iob. Although the grievor had not spoken to anyone before applying to this job, he was aware that a resume was required in addition to his application, and he duly submitted one. His resume was appropriately prepared and was subject to analysis in competition with the other 19 applicants. However, in comparison with the criteria and ultimately to the successful candidates, the qrievor's coverinq letter, application and resume did not indicate that the qrievor has an manv skills as the successful competitors. ‘ (Emphasis added) In the Board's view, in each case a fair balance must be drawn between the obligation of an applicant to specify his qualifications in his resume, and the obligation on the employer to ascertain details of particular aspects of qualifications that particularly concern it. In Re W.C.B. of B.C. Isupra), the posting required an "extensive knowledge" of logging and sawmill operations and the applicant did not disclose any knowledge whatsoever of that area in his application. In those circumstances, the arbitrator held that the employer had no obligation to make its own inquiry. _ In contrast, in the case at hand, the qualification posted was "Experience in a security environmentI'. The posting then went on to describe the particular aspects of that experience the employer was looking for. Thus it noted that security experience in warehousing is preferable, that familiarity with patrolling techniques and report writing was required and that excellent communication and interpersonal skills, ability to do foot patrols, climbing stairs, handle 20 critical emergency situations such as plumbing, electrical and fire problems are necessary skills. If the grievors had not disclosed any security experience at all in their resumes, the Board agrees that the employer had no obligation to find out, if in fact they had such experience, unless it knew that they did. However, unlike in the W.C.B. of B.C. case, each grievor specified in his resume that he had security experience. What he did not do was to specify particulars of that experience. The grievors testified that that they expected that the employer would ascertain those details of their security experience at an interview. In the Board's view, in the particular circumstances, that was not an unreasonable assumption on the grievorsl part. If they had not disclosed any security experience at all it is one thing. But here they did. While it is preferable from the employer's point of view to have as much detail as possible in a resume, the failure to provide a perfect resume should not deny these employees, who have negotiated seniority rights in the collective agreement, their opportunity to be assessed for their qualification. Seniority is one of the most sacred rights that unionized employees obtain through negotiations. Seniority rights are critical particularly when it comes to promotions. See, Re Tuna-Sol of Canada Ltd., (1964) 15 L.A.C. 161 (Reville). On the other hand, this employer had only 10 job applications for the two positions. 21 The two grievors were internal applicants. The employer had information that each of them had some security experience. It could not have been too much of an inconvenience for the employer to make an in'quiry to clarify any questions it had about that experience, if indeed it did not wish to find that out at an interview. In fact, the evidence indicates that the employer did exactly that with regard to the two incumbents. They were granted interview based on their applications which were filed in evidence. Cabarle's resume sets out that between 1980-1990 he was a police officer with the Philippine National Police with "Responsibilities to protect life and property, maintain peace and order, to protect the innocent against intimidation, to enforce law and order". It is notable that, this resume does not specify any more than the grievers' resumes, that Cabarle had familiarity with patrolling and report writing techniques, although it can be reasonably assumed that a police officer would have that familiarity. However, in the same vein, Mr. Harris admitted that since the grievors had security experience, it raised the implication in his mind that they would have familiarity with patrolling and report writing techniques because most security jobs involve those. All he needed was to confirm that. 22 Mr. Roti's application in my view is even more troublesome. While the job posting specifically required a resume to be filed, Roti did not do so. He merely attached to his application form certificates indicating that he had completed a fire arms training course for the use of a revolver and a 20 hour armed security officers basic training course. His application did not disclose any actual employment experience at all in a security environment. Yet he was given an interview. Since the employer's position is that it relied solely on the applications for purposes of screening for interviews, the manner in which it treated the incumbents' applications and the grievers' applications for that purpose is not consistent. Furthermore, it is significant to note that in both Re W.C.B. of B.C and Re Tullv, the Boards were dealing with collective agreements which contained 81competitionll clauses. As the emphasized- portions of the excerpts from those decisions set out above indicate, the fact that a competition between applicants was involved, greatly influenced the decisions of both boards. In other words, since the grievors had to establish that they were at least relatively equal to the less senior applicants, the Boards felt that it was up to the grievors to put as much information as possible in their resumes to be able to compete with the other applicants. 23 In the case at hand, the collective agreement has no competition clause. The grievors are 'only required to establish that they meet the minimum qualifications. They are not required to compete' with the other applicants. Mr. Harris testified that upon a review of the grievers' applications on March 3, 1995 using the Screening guide, he concluded that the grievors security experience was "questionable" because while there was an implication that they may have the required experience, he could not confirm that from the applications. The Board finds that given that the grievors had the obligation only to meet the threshold qualifications, where they had demonstrated that they may meet that standard, it was not proper for the employer to refuse to consider their applications further. The screening process was flawed to that extent and not consistent with the obligation of the employer to determine whether senior applicants were qualified. Security licence The evidence also indicates that a further reason for denying Mr. Durant an interview was the employer's concern that he lacked a security licence. The Board finds, based on the evidence of the union witness' testimony, confirmed by Mr. Harris' own notes from the grievance meeting, that this concern persisted even at that stage. It has now been 24 conceded that no such "security licence" existed, and that it was not a proper qualification for the -employer to have sought. Based on all of the foregoing, the Board finds that the employer's denial of interviews to the two grievors was not justified based on the qualification of security experience, and in Mr. Durant's case, based on his discipline or attendance records. It therefore leaves for consideration whether their physical ability justified that decision. Physical ability In determining this aspect of the grievance, the Board must take into account the extent of the physical demands of the Senior Security Officer position. For this purpose, upon agreement of the parties, I was provided a tour of the warehouse facility during which I actually did the full patrol which an officer would do inside the warehouse, outside the building and along the perimeter fence around the property. I also heard the testimony of Mr. Glenn Hunter, Supervisor of Security, who had also worked for 8 years as a Officer at the facility, as to the nature performed by a Senior Security Officer. Senior Security of the duties The evidence indicates that depending on the shift and the rotating schedule of duties, the duties and 25 responsibilities of a Senior Security Officer may vary. On the day shift, officers are assigned to inside duties, sealing duties or gate-house duties. On the afternoon and night shifts and during week-ends, patrols concentrate on the outside, i.e. the parking lot, the compound, the perimeter fence around the property, and the valve rooms and the pump house located separately in different parts of the property. The evidence indicates that the officers on inside duty rotate every 2 hours between patrol duty and control room duty. While the latter involves sitting at the control desk, the officer on inside patrol is constantly patrolling all areas within the building which is the size of several foot- ball fields. The building has several levels including the main floor, mezzanine and the high building. Moving around within the building requires climbing stairs and ladders to get over many conveyor belts. The sealer duties require the officer to continuously seal loaded trucks by climbing a short ladder. Unless extreme weather prevents it, once a shift, the outside officer is required to patrol along the perimeter fence. The terrain along the fence is very uneven and in wet and icy conditions could be quite slippery. The gate-house assignment is relatively lighter, although the officer still has to climb a short ladder to inspect trailers that enter and leave the premises. The control room duties are the most sedentary of the security officer's duties. 26 Although very extensive evidence was adduced as to the Senior Security Officers' duties and how-often the various functions are performed, I will not review those details here. Based on the evidence, 'including the tour I had, it is fair to conclude that on the whole the job is a physically demanding one. Particularly when on inside duties, the job involves almost continuous walking and climbing of stairs and ladders. The outside duties require extensive walking, including a fence patrol once a shift, which requires walking for extended periods on uneven terrain, which sometimes can be slippery. The issue then is whether Mr. Harris correctly decided that the two grievors lacked the physical ability to perform these duties. The medical reports which were in the employer's possession at the time and which were relied on by Mr. Harris were filed in evidence. Mr. Durant The evidence indicates that on January 18, 1994 Durant suffered an injury at work and was off on workers compensation at the time of the posting and the screening process. On March 14, 1994 he returned to modified duties based on his physician's report which imposed certain restrictions on lifting and carrying. 27 His modified job was in the examination room examining bottles for sediments. It is clear that it was a very sedentary job. Hc.wever, after a few days he was allowed to do checking duties at his discretion. The grievor testified that for about half his time he did checking duties which required him to walk around skids and take down certain information from the stocks. However, he agreed that at any time he was free to return to the more sedentary examining duties. The evidence indicates that on May 5, 1994, Mr. Durant reported a recurrence while on modified work and missed time again. On May 9, 1994, his physician again issued a report declaring him fit for modified work. This time more restrictions were imposed. These included walking only short distances, standing or sitting limited to 30 minutes, avoid lifting, bending at the knees only, no twisting, no ladder climbing and certain weight restrictions on lifting and pushing. When asked by union counsel whether patrolling outside for 1 to l-1/2 hours or climbing ladders would have been a problem had he been awarded a Senior Security Officer position, Durant answered Arnold. However, during cross- examination when shown the medical reports with the various physical restrictions, Mr. Durant agreed that he would not 28 have been able to walk for 1 to l-1/2 hours and that his doctor would have had a problem if he did-that. k Mr. Evans Mr. Evans suffered a work related knee injury on August 9, 1993 and was off on compensation for about 4 weeks. He then returned to work but re-injured his knee. A doctor's report dated December 30, 1993 indicates that Evans was totally disabled at the time. Another physician's report dated January 13, 1994 declares Evans fit for modified work with the following restrictions: Walking only short distances, standing or sitting for only 1 hour, no stair climbing and no squatting. A subsequent physician's report dated March 1, 1994 indicates that he was not fit for regular duties, but fit for modified duties with walking restricted to only short distances, standing for only one hour, no stair climbing and weight restrictions for lifting, carrying and pushing. Three subsequent physician's reports dated March 1, 1994; May 24, 1994 and November 1, 1994 continued these restrictions, and another dated January 15, 1995 added a restriction on the use of forklifts. A letter dated January 31, 1995 from a Vocational Rehabilitation Management Counsellor of the WCB to the employer notes that as of that date Mr. Evans' could return to his regular warehouseman job with the aid of a knee brace with the precautions IIn0 29 repetitive walking, stair climbing, ladder climbing, squatting or kneeling". Mr. Evans testified in chief that during his modified work programme he spent his time between the examination room and checking duties. He testified that by July/August 1994 he could have performed all the duties of a Senior Security Officer except climbing the stairs in the high building. When asked if he could have climbed the ladders over the conveyor belts, he replied "1 think I could have done it, if it was not repetitiven. He said that as long as he did not have to run, he could have done the outside patrol as of May 1994. Under cross-examination employer counsel reviewed with Evans his physician's reports including the restrictions. When counsel suggested that in March 1994 his doctor would have concluded that he could not perform the posted job, Evans replied "We didn't-get a chance to find that out". When counsel suggested that the 10 physician's reports indicate that he could not do the posted duties, Evans agreed. The union submits that it was not proper for Mr. Harris to rely on the restrictions placed on the grievors by their doctors, because those were not based on the job duties for the Senior Security Officer position. Counsel submits that Mr. Harris should have obtained medical opinions as to the 30 grievorsl ability to perform the particular duties of the posted job. Also, counsel submits that .while the grievors were returned to work under medical restrictions, the grievers' evidence was that they did not always adhere to those restrictions in their modified jobs. Instead, their supervisor allowed them to exceed the restrictions to the extent that the grievors could do so comfortably. Counsel submits that Mr. Harris did not consult the grievors or their supervisors in order to find out what duties the grievors in fact performed in their modified work programme. Nor did he familiarize himself with the exact duties performed by a Senior Security Officer. As a result, for example he testified that the officer had to confront and pursue intruders and to move equipment in an emergency. The Security Supervisor, however, testified that these were not duties required to be performed by Senior Security Officers, and that confronting and pursuing intruders was in fact contrary to policy. Their role-was to observe and call the police or the mobile security unit. The Board agrees with the union that the process folIowed by Mr. Harris was flawed to the extent that he did not attempt to familiarize himself with the work the grievors performed on modified work or with the exact nature of the duties performed by a Senior Security Officer. Similarly, it would have been preferable if he had obtained medical opinions about each 31 grievor's fitness to perform the posted duties. Mr. Harris testified that he made the decision that the grievors lacked the physical capability to perform the posted duties, sometime after he went through the screening guide process on March 3, 1994. His own testimony was that at the end of that process he had a number of questions about the grievers' physical ability. He did not testify that he concluded decisively that they lacked the physical ability. This is attested to by the fact that in the screening guide he did not give either grievor any r8noV' grades. Instead he gave them 81marginal grades" or question marks for the factors related to physical ability. Under the column titled 11qualified18, rather than a ltyesf~ or a rlnotl, each grievor was marked with a question symbol. Mr. Harris testified that subsequently, he consulted with the other two members of the selection panel who were not involved in the screening process, and confirmed with them that the grievors could not perform the posted duties. There was no explanation as to what information, if any, those two panel members could have provided about the grievers' abilities, which caused Mr. Harris to change his conclusion from "questionableVV to a definite WotV. All of the circumstances indicate that it is probable, as the union suggests, that the availability of two highly trained candidates in Roti and Cabarle influenced Mr. Harris' thinking. Because there were two superior candidates 32 available, Mr. Harris did not make information in order to clarify the grievers' security experience and ‘ any attempt to obtain more questions he had about the physical ability. Such a process is tantamount to treating the job posting article in the collective agreement as a competition clause, which it clearly was not. DECISION The Board dismisses as unfounded the allegation of bad faith. There is simply no evidence to suggest that Mr. Harris had any motivation to favour the incumbents or that he harboured any ill-will or grudge against either grievor. Eventhough the Board finds that the screening process used to deny the grievers' interviews was flawed, after careful consideration, the Board concludes that Mr. Harris' decision that the grievors were in fact incapable of performing the posted duties at the time he made that decision was the correct one. In other words, even if a flawless process had been followed and Mr. Harris had done those things which the Board noted he should have done, he would have still come to the same conclusion that the grievors lacked the physical ability. The Board notes that the bulk of the Senior Security Officer's job involves constant walking and climbing of stairs 33 and ladders. This was evident on the tour the Board took and is also highlighted in the job posting itself, where foot patrols and climbing of stairs is explicitly mentioned. At the time of the screening process, Mr. Durant was completely off work. When the employees returned on modified duties, they had severe restrictions on the amount of walking and standing they were allowed to do. In five different physicians' reports issued between January 13, 1994 to May 24, 1994 a 'Ino stair climbingVt restriction was placed on Mr. Evans. Mr. Durant had severe restriction placed on the amount of walking, standing and sitting, and a Itno ladder climbingn. The evidence indicates that Mr. Durant claimed a recurrence of his injury on May 5, 1994 while performing the modified work. The evidence is that the medical restrictions were placed by the doctors, not based on the duties of the posted position but based on the modified work. However, the Board agrees with employer counsel, that it makes no difference. If the doctor determined that an employee should not walk for more than 30 minutes or that he should not climb stairs, it should not matter in what job he is doing that. Furthermore, it was open to the union to call evidence from the doctors to say that those restrictions would not have applied in the posted position, or for that matter that the grievors could have adequately performed the posted duties at the time. However, no medical evidence was adduced in that regard. 34 Not much weight can be put on the grievers' testimony that despite the medical restrictions in file, they did the checking duties during their modified work program, which involved a fair amount of standing and walking. It is clear that those duties are not comparable in terms of volume or in terms of physical strain as in the patrols and constant climbing of stairs and ladders required in the posted position. The evidence also indicates that the grievors did the checking duties solely at their discretion and that at any time they were free to return to their sedentary examination room duties. The Board acknowledges the two grievorsl desire to try to be as active as possible despite their injuries. However, the fact is that, at the time the employer screened them out, they were under severe medical restrictions, which impacted on the most significant part of the posted duties, namely, standing, walking and climbing: Based on all of the evidence, the Board agrees with the employerts decision that at the time it decided not to interview the two grievors, they were not physically capable of performing the posted duties. While the employer did many things that were improper, its decision itself as to their physical ability was correct. 35 For all of those reasons, these grievances are dismissed. Dated this 3oth day of'May, 1996 at Hamilton, Ontario Vice-Chairperson