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Home My WebLink About1989-0715.Moses.91-11-27 ONTARIO EMP~.O¥~:S DE LA COURONNE CROWN EMPL 0 YEE$ OE L 'ONTA RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE P.*rO0, TORONTO, ONTARR~. M5G ?Z8 TELE~'HO~E/TEL.~HONE. (416) 325- r388 150, RUE [~UNDAS GUEST, BUREAU 2~00, TORONTO (ONTARIO]. MSG tZ8 FACSIM~LE,'TELECOP~E . (4 ~6) ~25- ~396 715/89 IN THE M~TTER OF AN ARBITRATION Under THE CROWN EHPLOYEE$ COLLECTIVE BARGAINING &CT Before THE gRIEVANCE SETTLEMENT,BOARD BETWEEN OPSEU (Moses) Grievor - and - The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations) Employer B~FORE: A. Barrett Vice-Chairperson T. Browes-Bugden Member A. Stapleton Member FOR THE E. Bessner GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE P. Jarvis EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart & Storie Barristers & Solicitors FOR THE J, Spanos INCUMBE~qT: CorPorate Services Section Ministry of Consumer & Commercial Rel'ations HEARING October 23, 25, 1990 March 4, 1991 This is a job competition grievance for a bilingual position framed as follows: "I was not called for an interview for the position cf an Examiner OAG 10 File CR 278. I am familiar with all the requirements and deal with all aspects of the Acts in my present position. I feel I was qualified and it was unfair that ! did not Get an interview. Settlement desired: That I be given the position of Examiner OAG 10 File CR- 278. Dated: April 26, 1989." As a result of this grievance Ms. Moses was given an interview for the job and a French test to determine her level of' proficiency in that language. A stated qualification for the position was Advanced French language skills. On the French test she was assessed at the Intermediate level, which means that she can ask and answer simple questions on familiar topics and handle simple situations or transactions, but cannot narrate and describe in the past and future tenses, or handle a complicated situation or transaction. The tester predicted that it would take Ms. Moses 600 hours of instruction to reach the Advanced level. On her interview, in English, Ms. Moses was rated sixth out of the eight candidates. The position is titled Examiner (Bilingual) in the Companies Branch, and the duties of the incumbent are to examine - 2 - applications for Letters Patent, and for Extra-Provincial Licences, Articles of Incorporation. fundamental change documents, and supporting docUments to ensure their conformity to the.provisions of the Corporations Act, the Extra-Provincial Corporations Act, and the Business Corporations Act, Branch policy and practice, to authorize the issuance of incorporations, amendments, licences, and corrected certificates, and to provide services and information to client group in Engl.ish and French, as required. The skills and knowledge required for the position set out on the position specification are as follows: "Sufficient to perform on a paralegal level in the interpretation and application.of the Corporations Act, the Extra-Provincial Corporations Act, and the Business Corporations Act, to permit the incumbent to provide consultative and evaluative services' to lawyers, businessmen, M.P.P.'s, police authorities, and the general public in explaining the requirements' and processes under this legislation, and in app!yin~ the legislation for decision-making purposes. General knowledge of other legislation administered by the Companies Branch, and the policies, procedures, and- p~ocesses used by the Branch. Ability to explain orally, or in writing using legal terminology, or general terminology, depending upon the specific focus of the response, requirements of specific sections of the above Acts, or the regulations, procedures, optional approaches available to the client, exception to the rule, etc. in English 'and French. Strong oral/written communication skills in both languages. Proven experience in effectively dealing with the public." - 3 - Ms. Mos~s complains that she was only granted an interview after Julie SDanos had been awarded the job, and after the filinG of the grievance, and that she should have been granted an ~nterview in the first place along with the other seven candidates selected for interviews. She ~aid that her Derzonne! file was not looked at, nor were her references checked, and she was not really given a fair chance at the job. The late interview was perfunctory, and the incumbent was awarded the job (albeit on an "acting" basis) before she was even given a French test. With respect to her French abilities, the griever says that althouqh the job is designated as bilingual under the French Language Services Act, 1986, there is really very little need to use French on the job. About 80 percent of the clientele are English-speaking members of the legal community in Toronto, although the office serves the entire province and has a reciprocal arrangement with Quebec as well. Ms. Moses was pre-screened out of the job competition and not greater.an interview initially because it was felt her French language skills were insufficient and did not meet the Advanced level requirement. Ms. Moses' application for the job did not reveal that she had ever worked in the French language, and the only indication of her French ability was a notation under the heading, "Courses", stating: "Conversational French {presently enrolled)" Ms. Maio, the supervisor ~f the position, and one of the three-Derson committee struck to run the competiticn~ knew that Ms, Moses was attending the same series of French classes Maio was. M~. Maio knew that Ms. Moses was at the Intermediate level in the' course, while she ~Ms. Maio) was at the Intermediate Plus level. Ms. Maio testified that even at her ~ore advanced level, she could not fulfil the requirements of the position in French. Ms. Spanos revealed on her application form that her last two positions in the Ministry were designated bilingual. After she scored first on the oral interviewr her personnel file was reviewed and it was discovered she had a certificate rating her French language skills at Intermediate P!u$~ dated 1-1/2 years earlier. It had been the intention of the selection committee to test the top candidate from the interviews in the French language to ensure the Advanced level way met prior to awarding the position. However, the Branch was so Short-staffed that Ms. Maio requested that Ms, Spanos be~given the job on an acting basim until the~ French temt could be held. The test was held about six weeks later and Ms. Spanos achieved the Advanced level. She was then confirmed ~n the ~ob. It is set out {n the job description and was conceded by all witnesses, includinG the.grievor, that the job r~quires strong - 5 - oral and written communication skills. Ms. Moses also conceded that she does not hav~ strong skills in French. She ~ee!s. however~ that she could get by in her dealings with French-speaking clients because the need would not arise very often. That reasoning is not in accord with the purpose and intent of the French Language Serv±ces Act. By that Act people have a right to deal with designated government offices in French. If that right is to be a meaningful one the person with whom they are dealing must be quite fluent in French. If the nature of the job in question requires strong oral and written communication skills in English, surely the French-speaking public is entitled to a similar level of communication. The employer has the right pursuant to section 18 (1) of the Crown EmDIoyees Collective Bar~ainin~ Act to set the qualifications for a job. This discretion is limited in the arbitral jurisprudence by a requirement that the qualifications be reasonably related to the job in question. This Board has recently consldg~ed ~he impact of the French Language Services Act, 1986 on the issue of whether or not a requirement for Advanced French in a position designated as bilingual is a reasonable requirement. (GSB Beck, 196/89; GSB St. Pierre, 1236/89). It should be well- settled by now that a requirement for Advanced French language proficiency is reasonably-related to a position designated as - 6 - bilingual under the French Lanqua~e Services kct. Ms. Moses does not have this advanced proficiency in French and was therefore properly pre-screened out of the competition. Any flaws in the competition and interview process are irrelevant when assessing this grievance. The employer is entitled to pre-screen applicants who do not have an essential skill, ability or qualification for a job, and that is what was done here. The subsequent granting of an interview and a French test after the filing of the Grievance only confirmed the correctness of the pre- screening decision. AccordinGly, the grievance is dismissed. DATED at Toronto, this 27th day of November, lqql. SA SARRETT, Vice p on .... "! Dissent" (dissent_ to follow) T. BROWES-BUGDEN, Member