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HomeMy WebLinkAbout1990-0813.West.90-11-22 ,- ( '. ONTARIO " '.., EMPLOYÉS DE LA cOURONNE .. CROWN EMPLOYEES DE L'ONTARIO , , ~. 11.11" GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT . BOARD.. DES GRIEFS 180 DUNDAS STREET. WEST, TORONTO, ONTARIO. M5G lZ8.. SUITE 2100 TELEPHONE/iÉLlPHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G lZe -BUREAU 2100 (416) 598-0688 813/90 IN THB HATTER OF AN ARBITRATION Under THB CROWN EMPLOYBES COLLECT:IVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD, BETWEEN OPSEU (West)' Grievor ~ and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE: ' P. Knopf Vice-Chairperson P. Klym Member, M. O'Toole Member FOR THE , L. Newton GRIEVOR Counsel Cornish Roland Barristers & Solicitors FOR THB E. McKnight EMPLOYER Staff Relations Advisor Human Resources Branch Ministry of Transportation HEARING: October 24, 1990 i J \ I ~ DECISION This case involves a grievance over a job competition. At the outset of the proceedings, the Ministry ,raised a preliminary issue. It was admitted on behalf of the Ministry that the job competition had been conducted in a manner that would be considered defective by this Board. The Ministry realizod this soon after the grievance_had been filed and had offered a rerun of the competition. The Grievor declined that opportunity and proceeded to process the grievance through to the hearing. The Ministry argued that, given its admission and willingness to conduct a new , competition, the Board should decline to hear the case and should simply order that ,the competition be rerun. The Union disagrecdõ It was pointed out that only three people applied for the position in question. Those three were the Grievor, the Incumbent and a third individual who was willing to tes~ify on behalf of the Grievor. Counscl for the Union stressed that since the Board has the jurisdiction ,to award the position to a grievor in the event that the selection process violates the collective agrQeme~t, we ought to accept our jurisdiction to do so. We were told that the Union could prescnt evidence to show that the Grievor was the rno~t sonior candidate and the most qualified for the position and ought therefore to be placed directly into the position. We also heard from the Incumbent, Mr. Bruce Fry, who appeared on his own behalf. He felt that he had'been fairly and properly accepted into the position. nc'stressed that he has performod the duties of the job without complaint and hopes to retain the position. · \ I ; - 2 - I " Upon reflection, the Board ruled that in the unusual circumstances of this case, it would be appropriate to hear evidence and argument on the appropriate remedy in this situation. While the Grievance Settlement Board ought not to place itself in the position of management and sit in judgment on the relative qualifications of applicants for a job posting, the situation before us was unique. There, were only three applicants for the job and they were involved in the hearing, we could conduct the inquiry and render a decision in loss time than would be involved if 'the competition was rerun and there was some apprehension on the Union's part as to the ability of management to conduct an impartial revi~w of the candidates, given the circumstances leading µp to the grievance. Accordingly, we invited both parties and the Incumbent to present evidence to us on the sole issue of the relative seniority and qualifications of the Grievor and the Incumbent as well as evidence regarding the job in question. This.would enable us to determine an appropriate remedy, that could include the possibilit~ of returning the question to the Employer to rerun' the competition in any event. The position being sought is that of a Highway General Foreman 1. The class covers positions of employees who supervise the activities of sub-foroman, equipment operators and manual workers, who are engaged in, road repairs and the maintenance of bridges, fences, culverts and other construction and maintenance projects within the applicable area. Basically, they would supervise the Operator 3ts who arc Highway Equipment Operators. These people operate a variety of equipment. They transport personnel, ~ut grass, maintain the road shoulders~ do snow removal, and maintain equipment. J - 3 - i . ,,' I " Both the Grievor and the Incumbent wer~ Operator 3'5 at the time of the posting. The Grievor had 23 yoars' seniority and the Incumbent had less than one year's seniority. So the Incumbent was not yet a permanent employee. There is no question that both the Grievor and the Incumbent were qualified to do the job. However, it is this Board's task to weigh their relative qualifications. The evidence before us shows that .the Grievor has worked wi thin this operation for a number of years. He has taken a variety of courses dealing with the maintenance and 0p9ration of all the applicable equipment, as well as occupational health and I 1 safety and safe driving courses and WHMIS. For nine years he has acted in a supervisory role over assigned staff and equipment while the Patrolman was on holidays, or at other assigned times whe~ necessary. On such occasions he has kept records, diaries, time sheets and the appropriate equipment log. He has also acted as the union Representa ti ve 'and the Safety Representative within his unit. He is învolved' in the community as a minor softball coach. The Grievor's performance appraisals for a number of years were filed. These appraisals show a consistently satisfactory work performance. In 1988 his supcrv~sor summarized the appraisal by saying: aill is very competent· at equipment operations and equipment maintenance. Bill is very competent at highway and facility ,maintenance. He is very good at solving difficult problems that arise from time to time. Bill is very safety conscious. Bill takes over for s~pcrvisor·when needed and is very competent in this area. Bill could go on to the next level of his career in highway maintenance. We were also given evidence regarding the Incumbent. Prior to joining the Ministry, Mr. Fry worked for the County I I - - 4 - I ~ " I of Hastings from 1986 to 1989 in the Roads Departmennt. In this capacity he earned'ð Class A-Z Driver's Licence and took a variety of courses dealing with Air Brakes and WHMIS. He also got a wide breadth of experience working on a number of , pieces of equipment dealing with'road maintenance. He joined the Ministry in 1989 and gained certification on Type A and Type B equipment. He also took a number of other courses. Like the Grievor, Mr. Fry is active in the community, playing Junior B and Major Junior A hockey as well as assistant coaching a Peewee "en team to the Ontario Championship. l1r. Fry's "three-month" and nnine-month" work appraisals were filed. They are very positive. They indicate that Mr. Fry met the performance ,job expectations and was recommended to become a regular employee. Article 4.3 of the collective agreement provides: In filling a vacancy, the Employer should give I primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal,. length of continuous servico shall be a consideration. The Employer admits that the process it used to evaluate the qualifications and the ability of the people who applied for this job was,procedurally flawed. While the Employer would' have preferred to have this Board remit this matter back to management to determine the rclativ~ qualifications anew, the Ministry did not challenge the fact that this Board has the authority and jurisdiction to make such determination. Hence, on the evidence before us, we are called upon to consider the qualifications and ability of , the Gricvorand the Incumbent. Wo had the advantage' of hearing evidence from the Incumbent, Mr. ~ry , as well as reviewing his applicatio~ and his job performance appraisals. There is no doubt that he is I , ~ " I - 5 - . I a very impressive young man. He is articulate, though tfu 1, and very anxious to do a good job in this Department. As he said t;,o us, "I've done more than was expected of me. r look forward to doing extra. n He impressos us as someone who I would be a very valuable employee and an asset to any department. We are confidónt that the Ministry recognizes this and will take the appropriate steps necessary to encourage Mr. Fry to pursue a long career with the Ministry. However, 'we must weigh the relative qualifications and ability to perform the required duties of this position between Mr. Fry and Hr. West. Despite Mr. Fry's potential and good performance at the time of the competition, Mr. West has been able to demonstrate a long history of success and ability at all the relevant job, skills. He has long years of experience lnall the pieces of equipment applicable to the job. For a number of years he has worked in an acting supervisory capacity on several occasions without evidence of . < , any complaints. He has undertaken many of the supervisory functions·such as record-keeping and problem-solving amongst his staff. The job appraisal indicates that he is ready for a promotion within his field. At the very least" he has to be considered relatively equal to the Incumbent, in which case, his len~th of continuous service of 23 years over the Incumbent's probationary status has to govern. But also" viewed objectively, it is very difficult to see how tho Grievor's qualifications and ability to perform the required duties could not be considered higher than those of tho Incumbent at this stage in their careers. Thus, on either basis, it is appropriate to order that the Grievor ought to have been given the position. Thus we conclude that the, Grievor ought to be promoted to the position of Patrol Foreman/Woman. He is to be compensated for any income he may have lost from the date that the Incumbent was placed in the job .' He rc ta i n '. " . ~ '. - 6 - ,,' jurisdiction to deal with any matter of implementation should our assistance be required further. DATED at Toronto, Ontario, this 22nd day of November 1990. /' I~ Paula Knopf - Vice-Chairperson ¡ic,·~.~ ; P. Klym - Membor l 117 ,_;J (' 4ð!~ M. O'Toole - Member i , :1 \1 I ,