HomeMy WebLinkAbout1989-0782.MacLean.91-01-04I -Z ONTARIO EMPLO Y~'S DE LA COURONNE
~"' ~, CROWN EMPLOYE£S DE L 'ONTAR$O
-, GRIEVANCE COMMISSION DE
t SETTLEMENT R~=GLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/T~cL '~PHONE
180, RUE DUNDA3 0UEST. TORONTO, (ONTARIO) M5G 1Z8 - BUREAU2100 (475) 598-0688
782/89
IN TEE MATTER OF AN ARBITRATION
Under
TEE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
TEE GRIEVANCE SETTLEMENT BOA-RD
BETWEEN:
0PSEU (MacLean)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
- and -
BEFORE: M.R. Gorsky ViCe-Chairperson
G. Majesky Member
D. Montrose Member
FOR THE R. Wells
GRIEVOR: Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR TEE M. Failes
EMPLOYER: Counsel
Winkler, Filion and Wakely
Barristers & Solicitors
~'EARINGS: December 22, 1989
March 23, 1990
DECIS~0N
_The Grievor filed a grievance on June !2, 1989, which
stated:
"'I grieve that I have been denied an interview for the position
Highway Operator 2"
The position in question was covered by Ottawa Distric't
Competition ~9289-70, with a posting date of May 2, 1989, and a
closing date of May I8, 1989. The competition was open to
classified and unclassified staff of the Ontario Public ~er'?ice.
Crown 5~ptoyees and the public. The position title is "Patrc, 1
· Operator AB (bilingual) and the classification is: "Highway
Equipment Operator 2". The headquarters for the position is at
the Vankleek Hill Patrol,
The position specification and class allocation with respect
to the position (Exhibit 3), provides as follows:
"2, Purpose of position (why does this position exist?)
To operate and maintain within a specified patrol area ,~ne
or more units of M.T.C. type 'A' and 'B' equipment .for the
purpose of maintaining roads and right-of-way. To perform
the duties of night patrolman.when assigned. To perform
general labouring duties when required.
3. Duties and related tasks ,(what is employee required to
do. how and why? Indicate percentage of time spent on
each duty)
!. Under the supervision of a Patrol Supervisor,
inc,'_?.bents perform duties and accept responsibilities
involving v.ar~ous combinations o~ wo~ assignmer:~=
relative to the operation of equipment known as Type A
and B, performing ,as night patrolman ,and general
labouring duties to provide good maintenance of
Highways and right-o.f-way within a specified patrc, l
area. Typical combinations of work activities are as
follows:
a) for at least 70~ of the year's working time is
ass%'gned to operate a combination of Type 'A' and
'B' equipment with a minimum of 40% on Type
'b) acts as labourer in summer and performs duties .~f
night patrolman for a minimum of 4 months during
winter:
c) operates type 'B' equipment in summer (40% of
time) and acts as Wingman during winter for a
total of at least 70% of year's working time.
2. While operating equipment performs such duties as:
-transporting Patrol personnel, equipment or
materials from Patrol Yard to job locations:
- cutting grass on Highway right-of-way;
- maintaining roadside shoulders with t?actor
attachments:
- loading materials onto vehicles or stockpiling
salt and sand;
- plowing snow from road surfaces - applying salt
and sand.
3. Maintaining equipment to which assigned by performing
such tasks as:
- washing, cleaning and greasing as required:
- inspecting equipment daily, reporting mechan~ca!
defects to supervisor;
- checking fuel, oil and lubricant levels and
topping when required;
- checking all safety equipment, flares, fuses,
signs~ first aid kits,, fire equipment, etc., and
ensure such equipment is in good operating
condition;
- completes equipment report forms daily, 'noting
fuel and oil consumption, type of operation, etc.
4. Performs a variety of labouring tasks as assigned such
as:
-digging ditches;
- replacing damaged guide rails:
- cutting grass and weeds using hand mowers;
- acting as flagman warning motorists of work in
- cleaning and sharpening hand toc!s:
- miscel'laneous janitorial duties in and around
patrol headquarters;
- re-erecting damaged Highway signs:
- patching road surface:
- removing beaver dams.
5. As Night Patrolman patrols specified Patrol area
frequently, visually inspecting road conditions, lJsLnw
mobile radio, directs snowplow or sanding crews as
required. Prepares reports of shift operations.
6. Auxiliary duties:
- may be required to supervise a group of labourers
as assigned;
- may be required to act for Patrol Supervisor in
his/her absence;.
- as assigned;
- may be required to complete daily patrol
, documents.
NOTE: Incumbents are subject to shift schedules during
winter months.
4. Skills and knowledge required to perform job at full
working level. (Indicate mandatory credentials or
l'icences0 if applicable)
Valid Class 'D' Ontario Driver's Licence and an M.T.C.
Operator's Permit. Experience in the operation of highway
equipment or .related machinery and an acceptable
record. Supervisory ability and good physical condition."-'
It was acknowledged that the Grievor was not granted an
interview because he is unilingual and the qualifications call
for an incumbent who is bilingual and the qualifications further
provide: "Ability to communicate verbally at the advanced level,
in both English and French languages." It would not have'
mattered, in th~s .case, if the qualifications called for a lesser
ability to communicate verbally in French, as it was acknowledged
that the Grievor is unilingual. It was the position taken on
behalf of Grievor that the position did not require an incumbent
t.? ccm~'.t~icate ,/erba~~../, at any ~evel,. ~n_ the ~-~h. ...... ~ngu~=~~: ...... ~',,~
~hat any requirement that an incumbent be able %o com, municate
verbally in the French language was unreasonable and,
accordingly, the grievance ought to be allowed and the qrievcr
~houtd be ~ranted an interview ~n a rerun of the compet~tic, n.
There was no dispute to the position taken on behalf of
Grievor that he possessed all of the qualifications for the
position, as posted,save for the ability to communicate verbally
in the French language, and ~f the Grievor"s position is
vindicated he would appear to be entitled to the relief sought in
some form.
?h.~e incumbent, Serge Fauteux. who was the suc,ze'ssful
applicant, was given notice of 'the hearing and advised of his
right to attend and participate at the hearing,and he did so
attend.
Both pa~ties brought the case of Giasson, 2250/87 (Watters)
to our attention. In the Giasson case, the grievance also arose
as a result of the grievor being denied an interview for a posted
position which stated that fluency in French was essential. ?h~e
decision to deny the grievor in the Giasson case an 'interview was
grieved before a different Danet of the Board and a prelim/nary
objection as to arbitrability was heard on March 25, t988, the
panel being chaired by J. H. Devlin. The decision on the
preliminary objection, dated May 20, 1988, dismissed the
Employer's objection and the Board there stated:
" ....~-~..e Board has jurisdiction to ~term~ne wh,e~ ....
fluency in French which was required for the vacancy ~n the
position of Construction Safety Officer which arose in
Sudbury in the summer of 1987 was reasonably related to the
job to be performed." (p.
In the decision o'n the merits in the Giasson ~as~ at ~
.the Board found that the grievor's supervisor: " ... had the
capacity to del'iver French services through two bilingual
officers and that this ability was lost in June of 1987."
Further at p. 9, ~t is stated:
"Given the demographics of the region under Mr. Owens'
.management, as disclosed by the census data provided to us,
we think it more likely than not that the call for such
services was more than just an isolated occurrence. In
light of his past experience the Board finds it
understandable' why Mr. Owens would want to retain one
- bilingual officer in the Sudbury complement.
importantly, We have been persuaded that this prior practice
establishes that 'the. restriction in quos{ion wa~ 'reasonably
related' to the job to be performed."
In the Giasson case, reference was made to the French
L&n~uace Serv;ces 'ac't, s.o. 1'986, 'c..,4~. " .:~ ~i
~ '
At p~. 10-11 of the Giasson case, it is stated:
" !-he board can only speculate as to the effect that the
French Lancua~e Services Act had on the decision to attach
the contested requirement to the posting. As noted,-the
final decision maker was not called to give evidence. Both
Mr. Owens and Mr. Aki were-aware of the legislation and the
impact that it could have on their daily opDrations.. The
former appears to have been under t~e mistaken impression
that the legislation was in full effect in June, 1987.
Notwithstanding this fact, our .assessment of his testimony
is that his conclusions as to.the need for the requirement.
were based primarily on his past experience with the ~
position. While Mr. Aki received Mr. Owens' recon~nendation
together with reasons, we cannot state with any certainty
that these reasons by themselves dictated the final
decision. It is likely that the existence of the
leqis!ation was factored into such decision. We note in
tk~s regard ~hat the employer, in responding to the
~rievance ~t Step C~ne. referred in a genera! way te
rights created therein. ~%e board does net, however, find
this to be material. In our judgment, the need
bilingual officer in the Sudbury office predated the
legislation. It is apparent that the French Language
Services Act did not create the need, although it may serve
to magnify it in future. Indeed, Mr. Owens testified that
such an officer would have been required without'even.
considering the impact of this legislative initiative. We
are inclined to agree with his assessment on the basis
the evidence
position rather than to the Act in reaching our conc!usicn
that the restriction was reasonably related to the tasks to
be performed. In the context of the particular case before
us, we do not think that much weight should be accorded to
the employer's decision vis a vis other postings in the
area.
/'he Employer submit{ed to us the case of MacKenzie, 1243/87
(Ratushny),'which was decided after the giasson case. It should
be noted that in neither of those cases was there any allegation
o~ bad faith against the employer, nor was there
allegation in the case before us. In the MacKenzie case, as in
the case before us, the sole issue was "whether the bilingual
'=~<F~rement is reasonably related {o the position in question."
(MacKenzie at p. 2).
In the MacKenzie case it was stated at p. 2:
"It should be noted that the criterion is 'related' rather
than 'necessary' The latter test would impose a higher
burden upon the employer. Nevertheless, the relationship of
the requirement to the job must be more than tenuous or
~}l~se=!.~ speculative."
In the MacKenzie case, the ~rievance related to the position
of Driver Examiner Supervisor in the New Liskeard office of the
Ministry of Transp6rtation and Communications. Approximately 80%
of the work of that office involved direct contact with the
public including telephone inquiries and inquiries made at the
the Highway Traffic Act. Applications are received and permits
and licences are issued and modified and written examinations are
administered and appointments are made for road tests. There is
?
also'banking performed, as well as other paper work associste,~
with the administrat~0n of the office. .There is an i~.=~
examiner who is bilingual and previous Supervisors eT[tending back
for at least ten years were bilingual. The Board found, at, p. 4
of the MacKenzie case, that:
"... as a matter of practice prior to the vacancy in
question, bilingual service was available to the public in
ali facets of the operation of the New Liskeard office.
When the position of Driver Examiner Supervisor became
vacant in April of 1987, bilingual capacity was made a job
requirement."
At p. 4 of the MacKenzie case it. ~s stated:
"The Srievor ~s an Inside Examiner in. the Sudbury Office of
the same Ministry. This office is larger than the one at
New Liskeard. in addition to the Supervisor, there are
three full-time outside examiners and from three to
full-time inside examiners including the.Grievo~.
Supervisor and one of the outside examfners are able to
provide road examinations in F~ench when.requested. There
is no such flexibility at New Liskeard since the Supervisor
is also the only outside examiner."
At pp. 4-5 of the MacKenzie case, in referring to Giasson,
the majority of the panel Stated:
"The majority in giasson reached its conclusion that the
bilingual~sm requirement was reasonably related on the basis
of the nature of the position in question, qui~e apart from
the potential application of the French Lancuace Services
Act, 1986. Nevertheless, the legislation provides important
context for assessing the reasonableness of the relationship
of the qualification to the position. The Preamble to the
Act includes the following:
'Whereas the French language is an historic and
h,)noured language 'in Ontario and is recognized by the
wheress in Ontario the French language ~s re'co~
an official language in the courts and in
an:{ whereas the Leg{statUre Assembly recogn~
contribution of the cultural heritage of the French
speaking population and wishes to preserve it for
future-generations: and whereas it is desirable to
guarantee the use'of the French language in
institutions of the Legislature and the Government of
Ontario, as provided in this Act ,..'
Amon~s-t other things, the Act establishes the right to
receive available services in French from government ,?ffices
in designated municipalities and districts. Provision is
made for the phasing in of this right over a three year
eriodcommencing on November 18, 1986, through the
esig~ation BY ~b~ FegulatiO~ of the various Government
agencies or ~.ns~%utions un%~ all are include~. Counsel
for the Grievor did ~ot challenge the purpose or policy of
the legislation but merely the implementation of the policy
on the facts of this grievance."
Notwithstanding certain statements found in the MacKenzie
case, it does not appear that the majority of the Boar-~ fo~ind the
legislation to furnish other than an "important context
assessing the reasonableness of the r. elationship of the
q~a.~ification to the position," (MacKenzie at p. 5)°
Of significance in the MacKenzie c~se is the fact:
"... there was'significant evidence of the demand for
services in the French language. The Grievor testified t. ha%
her experience in New Liskeard suggested that from
of the clientele were French-speaking to the extent of
having 'an accent or dialect' indicating that they were
'more French than English' On cross-examination she
elaborated, that those falling within this category of fr,2~n 4
to 5~ would have a 'very heavy accent' or would 'have
trouble finding the right word' or would speak in 'broken
English' She was unable to estimate how many of the
remaining 95 to 96~ of the clientele might have preferred to
speak in French even though they were able to communicate
effectively in English."
Further, at p, 8 of the MacKenzie case the Board found:
" ... that if a French speaking capacity were available,
from !5 to 20% of the clientele would take advantage of that
opportunity as their preference ~'i~is view
corresponds with what little data was presente2 %.ut
indicated that well over 20~ of the populati,sn in beth the
Timiskaming area and the smaller area serviced by the New
Liskeard office was francophone. Counsel for the Empieyer
made the point that the 'reasonably related' criterion must
be assessed not by whether people would have been able to
'get by' without speaking French but by whether French
language services would be utilized significantly
we,'~ available. ..... Bearing %his in mind ~t is a re ....
inference that' there W~s a significant deman,~ for French
~.~'~la..~~ g..~ services eve~ thn~,gh ......... re,-~,~s :~. such '~.=-~,~,~_ .... _.,_
not kept and surveys were not taken."
The final consideration .made by the majority of the Board
concerned: "... whether the Employer. acted reasonably in
concluding that alternative means of providing French language
services in the office in question were not available."
.(MacKenzie case at p. 8.). The Board went on to state:
"~..e nearest office to New Liskeard at which such services
are available is North Bay~ .This is almost a two
and for that reason would not provide an adequate
service. It was also suggested that a bilingual outs~d_
examiner could be assigned to New Liskeard on certain days.
However, that would disrupt the operation of that examiner's
home office (particularly its-French speaking services) and
would result in significant expenditures for travel costs
and lost time due to travel."
We were also referred to the case of ~, 1440/88
(Samuels).
" ... the. grievor applied for a posted position as a Travel
Consultant. in Niagara Falls. She did not get the position
for one reason only - her level of competence in the French
language was rated as 'Intermediate', whereas the Ministry
wanted someone with an 'Advanced' rating " (Da__~_ at
2.)
The Board in the Da!y' case referred to MacKenzie and to
Giasson. In the latter case, only to the Award on the preliminary
matter by the panel chaired by Ms.Devlin. In the Da!y case, the
unreasonableness alleged was not the imposition of a requirement
that there be some ~.ev.e] cf competence in the ~e~:chr, !~'..~e
~he requirement that the incumbent have an Advanced" ~eve=
verbal sk~ll in French. The Grievor argued that this: " ... was
not reasonably related to the job to be performed, and therefore
the Ministry violated Article 4.3 when it refused to give 'the
Griever] the job." (Daly .at p. 2).
The Board in the Dal¥ case found that the French Lancua~e
Services Act, 1986, did not apply to the case before it. In this
respect, the Dal¥ case is no different from the G~asson or
~acKen~ie cases. In the G~asson case, at p. 11, the ma3ority of
the Board concluded: "In summary, we have looked to the position
rather than to the Ac_~t in reaching our conc!usion that the
restriction was reasonably related to the tasks to be performed
.... " In the MacKenzie case, the majority of the Board emp!oyed
the Act for the purpose of providing an: " ... important context
for assessing the reasonableness of the relationship of the
qualification to the posit~on." (MacKenzie at p. 5}.
Neither counsel argued that the Act applied directly to this
case. Counsel for the Employer argued, however, relying on the
MacKenzie case, that the legislation also provided a-significant
context for assessing the reasonableness of the qualification
with respect to fluency in French to the position.
The Employer also referred to Beck 196/89 (Watters). In the
latter case, the Chairman, who was also the Chairman in the
G~asson case, agreed w~th the comment of the Board in the
~acKenzie c~se that th~ French LaDqu~ce Services Act.
provides an "important context for assessing the reasosab!ene?s
of the relationship of the qualification to the position."
MacKenzie, referred to at p. 15 Beck). .The Board in the Beck
case found {at p. !5) that:
"Unlike the situation in Giasson, the decision to
incorporate the language requirement in the posting was
motivated, in part, by the enactment of, and the need
to comply with, the French Lanqua~e Services Act, 1986.
In our judgement, the process described by Mr. Gibson,
which led to the establishment of the qualification,
was comprehensive and based on considerations which
were directly related to the demands of both the
Iegislat~on and the posit~on. Throughout, a major
objective of the Employer was to arrive at a result
which would enhance the existing level of French
language services within the District and the Region.
It wished to ins~dre that a reasonable level of-service
would be provided to those persons who wished to
communicate with government in French. We think it
reasonable for the Employer to isolate positions having
a significant degree of public contact as such would
likely serve to maximize the opportunity for service
delivery in that language. More specifically, we find ..
that the Employer properly considered the nature of the
responsibilities exercised by.the.Purchasing ''
.Supervisor. Persons in the position would have
substantial contact with contractors and suppliers,
often on issues of some complexity .... Whit'e demand
for such a service had not been great in. the past, it
is a reasonable inference that it would increase if the
service actually was available."
Further at p. 17 of.the Beck case:
"Lastly, we think it was reasonable for the Employer to
implement the French Lan~uaqe Services Act, !985 in such a
way as to minimize disruption to existing staff ....
The Board in the ~ case does not appear to have had the
Beck case brought to its attention.
It was agreed that th~ major work involved in the posted
po=~ion is ~,perat~ng snowpt,~ws in wint=~' - ~ cut~ ~ ~
...... ;.n~ _ ~tus from the road and performing ~oa~ ma~nt
duties in summer. ~nis would include repairing guide rails.
fixing broken signs and patching pot holes.
Brett Clemens is the Patrol Supervisor in Patrc, l Yarl 25.
VanK!eek Hill, and has occupie,1 that positior: since :3ct,~ber cf
19~8 ~d supervises the incumbents in the positi~Dn sought
the Grievor. He described the staffing in winter as consisting
of four snowplow helpers and fourteen persons occupying the
Patro~ Operator AB Positioa classified as Hea~ Equipment
Operator 2s. He described the Patrol Operator AB inc~ents as
performing general equipment operator dutie~ or night patrol
,Juries. Of th~ 14 Patrol O~era%ors who work d~.~r~ng %~e
,.~=.~.s. ~hree are assigned to Night Patrol duties
~e Vankle~k Hill Patrol Yard service~ a~ area i~ci~.~ii~9,
county of Prescott whose ~oDulation having French as a mother
tongue is approximately 75~ and the county of Glengarry were the
percentage is ap9roximately 40~.
~ere are two shifts for the snowplow crews, one beir~g from
8:00 a,m. to ~:00 p.m. and the other from 8:00 p,m. to ~:00 a.m..
and both crews operate five days a week from Monday to
If crews are required outside of regular hours and weekends., such
needs are met by overtime ausig~ents. ~e three Night Patro!mer~
referred to work either an 8:00 a.m. to 5:00 p.m. or an 8:00
to 6:00 a.m. shift. ~$re are two night patrolmen on duty
days a week with two of them working while the other is off. In
and 5:00 p.m. to 8:00 p.m. w~!! be covere~i. Al! Patrel
are sub~ect to being selected to work a~ Night ~.~-~','
serving as a Patrol Operator, an employee operates equipment and
performs general maintenance. Incumbents are also responsible
for the other duties above referred to. As Night ~trc!men ~hey
are responsible for supervising the snowplow crews.
In summer, there are six full time Patrol Operators who work
a five day week from Monday to Friday, there being one shift from
?:45 a.m. to 4:30 p.m. During the summer, the average time-off
taken by a Patrol Operator is five weeks, with four weeks
representing vacation time and one week representing overtime
accumulation from the winter operation. Vacation and overtime
accumulation time- off must be taken during the summer months.
Winter is treated as being the period from November 1 to March
31.
It was the position of the Employer that there are a number
of occasions when Patrol'0perators must perform tasks, few of
them being specifically set out in the position specification,
which require them to have the ability to communicate in French.
This submission was also said to be applicable to a Patrol
Operator when he acts as a Night Patrolman. Those occasions
referred to were as follows:
1. Assisting the travelling public whose vehicles have become
disabled on the highway.
2. Assisting persons who have been involved in accidents on the
hi,~hway.
9. Dea!in~ with the~public who make' complaints with respect to
such matters as fencing and drainage,
Engaging in traffic control where there has Peen a ve~%~c!e
break~cwn c.r an accident on the highway.
5. Dealing with private contractors who perform repairs ~n
Ministry equipment. This would include prlvate contractors
who operate local garages.
6. Dealing with snowplow contractors who are hired by the
Ministry in winter to operate snowplows and salt units.
Patrol Operators have to work with these contractors, as
they plow the roads as a team. Depending on weather
conditions, different formations are utilized and the Patrol
Operators and private contractors must harmonize their
method of operation.
7. During the summer, pr.ivate contractors haul gravel for
shoulders and Patrol Operators are assigned to supervise
this work which occurs once a week in the case of
shouldering and as much as twice a month in connection with
hauling gravel. Each operation may take two weeks.
Ditching operations are also conducted during the sum~er and
contractors are hired to assist in this operation. Mr,
~" Clemens testified'that approximately §0~ of the contractors
have French as their mother tongue,
8. The Patrol Operator~ are also required to deal w~th propert)~
owners a~,~g. Highway 417, a ma~or~ highway being ..'~"~.-~,,, ~ ....... ~".
the Vankieek Hill Patrol Yard. ~e Patrol Qperat?rs are
responsible for carrying out fencing operations along
adjoining properties and they frequently have to deal with
the adjacent property owners who are approx{mate
fr,~ncopho~e. Questions are frequently asked about the
nature of the work to be conducted ~d requests are
frequently made for repairs.
Mr. Clemens estimated that contact with the travelling
public by Patrol Operators would occur, on average, twice a week.
Fifty percent of the travelling public were said to be
francophone. While the francophone population did not insist on
being spoken to in French, they ~ould normally speaM French and
some of them cannot speak En~!ish.
Mr. Clemens testified that there are two bilingual Patrol
Operators assigned to the Vankleek~Hill patrol yard, one of whom
i~ the incumbent of the position bein~ sought by the ~i{~vor.
During the winter months lw~. Clemens assigns a bilingual Patrol'
Operator to each shift so that it would be possible, through
radio communication, to provide service in En~Iish and French.
It was the position of the Employer that' the composition of
the public being dealt with by Patrol Operators, comprising
large percentage of francophones, including a large percentage of
francophone contractors, makes it a reasonable requirement that
the incumbent be able to communicate with contractors and the
public in French. This was said to .be even more ~ecessary
t?~e planning that must be carried out with a view te the
~equ~rements of the French Lan,~ua~e Services Act whi~~ ar= ~ke!y
to apply to the Vankleek Hill patrol yard.
Although it was submitted on behalf of the grievor
the ~v~eption ~-,f traffic control the Patro1 Oper~o~
does not include the duties and responsibilities involving
communication with the public and with contractors listed above,
we find that they were part of the actual duties and
responsibilities of Patrol Operators.
We are concerned with the actual duties and responsibi!±ties
of a Patrol Operator and we are satisfied that the position
includes .alt of the listed Fontacts. They are somethin~
than mere adjunct responsibilities and they are essent~a! to the
position even though they involve only minor percentage of the
incurabents' working t~me.
The question is: is the ability to communicate verbally in
the French language a reasonable requirement for appointment to
the position7 Much of the Grievor's ability to testify as to the
contact responsibilities of the Patrol Operator was affected by
the fact that although he has worked in the snowplow operation
for seven years, it was as a snowplow helper operating the wing
at the side of the snowplow. He did not fulfil the functions of
Patrol Operator, I believe that he did not wish to mislead us but
I accept the evidence of M~. Clemens,. who did function in the
position for a period of time, and would find that his evidence
· ::s to the frequency of contact and the nature of the
Patrol Operators with the public and with contr.~ctors is ~..o_ ~
accurate.
Malcolm MacMaster also testified on behal~ of the Em~i~
He is the District Engineer for t.he area. including V~nkleek
Hilt, and is the senior manager for the District. Mr~ HacMaster
agreed with the evidence of Mr. Clemens relating to the contact
of the Patrol Officer with the public and with contractors and
added the contact betwe~h the Patrol Operator and representatives
of municipalities, where there is overlapping jurisdiction
between provincial and municipal authorities. He testified that
except for the reference to flagmen in the position-
sp~cification, there was no reference to the duties and
responsibilities involving dealing with the public,.contractors,
and municipal authorities, but he added that it was,
nevertheless, an intrinsic part of the job carried ou% by all
Patrol Operators.
Mr. MacMaster's evidence, in addition to dea!inq with the
various contact responsibilities of Patrol Operators, also dealt
with his role in the implementation of the. French Lan~uace
Services Act for the District. He was the persbn responsible for
~mplementation of the Ac__t in the District. He testified that he
became aware of the Ac___%t in August of 1986 and completed Exhibit
~7, which is part of the planning process prior to the
implementation of the Act with respect to the District. Exhibit
~7 != entitled: "French Language Set/_., Act .........
Planning Process" ."7~..e relevant portions of the document are as
"tev~l ....n~ded A11 lezations must have at leas~, .... .one
,-~qu~emen~s r,f the o,~tion ~n
,',= ~ Act
Present level District Office and certain patrols/crews
cannot meet this requirement.
Action required The competition process will be used to
meet the requirements of the Act.
Time frame All locations to have this capability by
for action November 18, 1989.
Given the percentage of francophones in the area se, v,c~d by
the Vankleek Hill Patrol Yard, it was not unreasonable to
anticipate that the area in which the Vankleek Hill Patrol Yard
is located would be ~esignated in a schedule so as to be affected
by the provisions of section 5 of the .Ac%. In light of this
reality, Mr. MacMaster prepared Exhibit 97, The action provided
for: "The competition process will be used to meet the
requirements of the Act", was a reasonable response by M~..
~acMaster, given the ~inguistic breakdown of the area serviced by
the District,
Mr. MacMaster testified that the original number of
bilingual Patrol Operators to be appointed over time was five,
but this was reduced to two on the basis that it would be
sufficient to have one person on each shift who could fulfil the
language requirement. In addition, because of the reduced number
.:,~ persons work,nc du..nc s an a ..... p.. wou.d ............
,:,per,to·.. with two persons who.could communicate'in. French,
c~,~ were required they could be considered at a later date
One person was deemed to be insufficient as this would only
~nable. ,-,~e..~ shift to be ~_.~ered,~, . It was felt that in the
one bilingual ?~troi Operator would be insufficient bec.~use cf
the fact that this is When vacation and accumulated overtime time
off is taken. Mr. MacMaster concluded that two persons who
· filled the language requirement would represent a reasonable
attempt to serve the Vankleek Hill Patrol at this time.
I would find that designating the position as bilingual was
a reasonable response by the Employer.
~nere was no suggestion in the evidence ~iven on behalf
the Employer that the imposition of th~ requirement was·for any
other purpose than to place the District in a position where it
could comply with the Ac__t when its requirements applied to the
area served by the VankIeek Hill Patrol Yard. The Employer' does
not have to wait until s. 5(1) of the Act becomes app!~cab!e to
the area serviced by the Patrol Yard.
A reasonable employer, in the circumstances, could take
necessary steps so that the Ac___~t would not create a chaotic
situation within the District upon its being made applicable to
the Vankleek Hill Patrol Yard.
Although the impetus for the introduction of the requirement
that the incumbent be able to communicate verbally in French was
the enactment of the French Lan~uace Services Act, the
.~ ........... s of the position an~ in ~spect of sue~ zationshi~
was mot. than tenuous or speculative. See reference to the
MacKenzie Award test at p, 14 of the Beck Award.
'eve!, it is irrelevant for the purposes of this Decision tllat
the ~loyer imposed a standard of communication ~n Frep. ch "~
the ~,,~'-~ ~','~"
For at! o~ the a~ove reasons, the grievence is denied.
DASD AT Toronto, Ontario
this ~th day of J~ 199~-.
M. R. Gorsk,/
¥ice-Chairperson
"! D~SENT .," (Dissent: wi~:hout writ:ten reason)
G. Ma jesk.~ .......
Me~er
D. Montrose
......... I~ember