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Home My WebLink About1990-0729.Agboka.93-01-15 " " /":\ '... , . ¡ ( , ONTARIO EMPl.OY~S DE LA COURONNE ~ CROWN EMPLOYEES OEL'ONTARIO 1111 GRIEVANCE COMMISSION DE (0 SETTLEMENT RÈGLEMENT r, ~ BOARD DES GRIEFS fBO DUNDAS STREEr WEsr, SUirE 2100, rORoNro. ONrARIO. MSG tZ8 TELEPHON€lrF.L~PHON€: (416) J2E-JJ88 180, RuE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), MSG rZ8 7' t'4~EITÈLÈCOP/E . (416l J2!-1396 \ """ :IN THE HATTER OP AN ARBI:TRATXONÇ ~ Under » . THB CROWN EMPLOYEBS COLLECTIVE BARGAINlli Before + THE GR:IEVANCE SBTTLEKEN'1' BOARD ~ ~ - ' '\. . \" BETWEEN OPSEU (Agboka) Grievor - and -. The Crown in Right of ontario (Ministry of Revenue) BIIlployer BBFORE: B. Fisher vice-Chairperson J.C. Laniel Member M. O'Toole Member FOR THE R. Anand gøl:ON Counsel Scott & Aylen Barristers & Solicitors POR THE I. Werker . .. n þ_ ~ EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors .. HEARING February 26, 1991 March 14, 15, 19, 25, 1991 May 23, 1991 _n June 11, 1991 July 29, 30, 31, 1991 - August 9, 1991 october 25, 1991 March 18, 19, 1992 ~- , , , r (' 0 1 AGBOKA This case Involves the termination of employment 01 a probationary employee who was employed as a Field Auditor In the Small Business Development Corporation Branch of the Ministry of Revenue. This position was classified as a Financial Officer 3 (F03). The Ministry's position was that this was a release under Section 22(5) of the Public Service Act. -A deputy Minister may release from employment any public serY8"-t during the first year of' his employment for failing to meet the requirements of his posltion.- The MlnlstryJs position was that in so far as it was a release and not a dismissal, the Grievance Settlement Board had no Jurisdiction to review the Ministry's decision. ' This was raised as a preliminary obJection. The UnlonJs, position was that since this was a preliminary objection, the Ministry 'had to present evidence to prove the termination was a release and as such they should go first. - ' In a oral ruling given on the first day of the hearing, the Board, with Mr. O'Toole <, dissenting, said --. -It Is the Ministry which must prove the defence of Section 22(5) of ~ the Public Service At, which Includes proving that the grlevor was given a fair assessment, that It was done In good faith, and that there was a rational coimection between the facts and the declslon.(Sheppard 2492186 Slone) . '" - . . - ( ( . . . ,2 u This Information Is clearly In the possBsslon of the Ministry, thus the Ministry should go first. Furthermclre since we are examining the Ministry's process, they should gCt flrsl- In so far as the Ministry Indicated that 11 was ~Iot relying on the doctrine of lust cause, the determination of the preliminary oblectlon became Ule case Itself, for by choosing not to rely on lust cause, the Ministry accepted the consequence that " the termination was not a release, It must have been a discharge without lust cause. Forlowlng this falrfy speedy resolution of the legal Issue of who goes first, the hearing proceeded over a period almost two years (which was 4, times as long as the gnevor's enUre employment with the Ministry). During this time· the Board members, and I suspect also counsel for the parties, learnt almost everything WI ever wanted to know about audlOng under the Small Business Development Corporation Act. but were afraid to ask. There was a palnstakingl, detailed røvJew of the workings of auditors In ,genaral, the working of the particular branch and the details of numerous training audits. At the end of the day thl's Vice Chair had not only a much deeper appreciation of what auditors actually do, but also was reminded. of the wisdO~ of his own personal career choice of law over accounting. "- -. - We therefore do not Intend to review in this award the entire breadth of the evidence presented In this case. but rather will focus on those parts of the case which the Grlevor claims amounts to evidence that he was not given a fair assessmenl .;: ~ : { ~ 3 I The Grlevor's position specification Is attached to this award. By way of overview It Is useful first to set out a chronology of the various ,events which took place during the Grlevor's employment , . Date Event December 4, 1989 The Grlevor Joined the Ministry and received Inltl~1 orientation, Including meeting other Small Business Development Corporation staff. December 5, 1989 111e Grlevor received the Small Business Development Corporation Audit Manual. a copy of The Small Business Development CorporaUon Act (the -Act") and other materials and was told to familiarize himself with these materials and ask questions .11, he had any problems. The Grlevor also received 3 old audit files lor review purposes. ",:,.'1.--- December 12, 1989 The Grfevor met other Small Business Pevelopment Corporation staff - . and reviewed materfals provided to him. The Grfevor was given " material for Training Audit No.1. . ....'- December 13, 1989 The Grlevor conducted and documented Training Audit No.1 with Mr. - Tam as his parallel auditor. , . . . , , I " 4 I January 2, 1990 The Grlevor was assigned Training Audit No.2 with Mr. Sosln as the parallel auditor. The Grlevor spent 3 days preparing this audil January 5, 1900 The Grlevor had a meeting with Mr. Khong, the Audit Supervisor of the S,mall Business Development Cc)rporatlon Branch. Mr. Khong told him that his preparaUon for Training Audit No.2 waalnadequate and that If this conUnued he could be released after 3 months. January 10. 1990 The Grlevor attended on Training Audit No.2. January 12, 1990 . The Grlnor attended on Training Audit No.3. Jan.17 to 30, 1990 The Grlevor was given extra tralrnlng Including Intensive review of Act and numerous exercises and tests. February 1, 1990 The Grlevor received a written performance evaluation of his performance from December 4,1989 - January 31, 1990. This report was quite critical of the Gtlevor's performance. The report Indicated that at the end of February his employment status would be determined. February 23 to - . March 14, 1990 DUring this period the Grfavor was not glvan any assigned work as .. the MInistry was consJderlng whether or not to let him go. He spent -~ his time reviewing Sman Business Development Corporation . - materials. · þ , , C : 5 March 14, 1990 The Grlevor and his Union Stewart mel with Mr. Xhong and requested that the Grlevor be permitted to go on more training audits. Mr. Khong then agreed to extend the review period to June 14, 1990. At the same time the Grlevor was given a two page document outlining what was expected of him over the next 3 months. March 21-, 1990 The agreement reached on March 14, 1990 was put In wrlUng and - ... a copy was given to the GrJevor. March 26, 1990 The Grlevor ,was given one page memo ouUlnlng a training plan complete with deadlines and reference material. March 27, 1990 The Grl8l1or attended on Training Audit No.4. I . April 9, 1990 The GrJevor received a written performance evaluation for the penod March 15, 1990 to April 4, 1990. This report was very critical. of the 'Grlevor's performance. The report Indicates that unless there was significant Improvement In his performance, the Grievor would be .~. '.." "~ released from the Ministry. The Grievor was also given a separate memo outlining more tralnlrig requirements. .. I April 10, 1990 The Grlevór attended on Training Audit No.5. - .-.-. April 20, 1990 The Grievor was given a memo regarding a training programme with - respect to Financial analysis, Including recommended texts and exercises, together with deadlines for these exercises. ( , . { 6 April 22, 1990 The Grlevor performed Training Audit No.6. April 27, 1990 The Grlevor Is given two written performance reviews for the period April 5 - 18, each one covering a different training audit Both review are extremely critical. The Grievor Is again reminded that if he falls to Improve he would be released. May 5, 1990 The Grlevor attended on Training Audit No.7. May 10, 1990 The Grlevor received a written penomanee appraisal for the period of April 27 - May 9, 1990. This rovlew was critical although some Improvement Is noted~ The Grievor was again reminded of his I possible release. i May ~7, 1990 The Grlevor, was released «Iue to a failure to meet the requirements I of the position. 11\e evidence of Mr. Khong, Mr. Sosln and Mr. Tam was consistent In that they felt that at the time of the Grlevor's release, the Gl1evor was not competent to perf~rm the lob In .-- question. Union counsel, In his Closing argument Indicated that they we~ not SUbmitting that the . . Grlevor was able to perform the Job In question al the Ume of his release. . - - The Union's argument Is based more on the process Itself rather than the conclusion. Their submission Is that the employer's evaluaticln process was so deficient and flawed that It Is Irrelevant whether or not the Grfevor could perform the fob. ~ , j, ( , 7 I The defects alleged by the Union are as follows: a) Mr. Khong's ·Socratic· teaching methods. Mr. Khong utilized a teaching method, often utilized In law schools, whereby the student's questions are not answered dlrecUy by the teacher, rather the teacher answers the student', question with another question. The purpose of this teaching method Is to force the· student to logically think through and analyze a problem, rather than Just beIng provided with the answers. The Grløvor did not respond well to this process, however Mr. Khong refused to-change his teaching methods. The Union alleges that In the hands of someone Uke Mr. ~onø, the Socratic method of teaching became a tool of cruelty and embarrassment Mr. Khong's position was that he felt It was ,8 good system of learning Inao ,far as It forces the new auditor to think through " the problem. He furthermore Indicated that ,be had used It luccas~fully in the past to te8ch other auditors JncJudJng Mr. 80sln and Mr. Tam. We find that this ·SocratiC- method of teaching was not a defect In the asseument process. It is a legitimate teaching method and Is applicable to the training of professionals like ~. 'ce:-. :.__ auditors who are required to exercise considerable Judgment The _ fact that the Grlevor did not respond well to thIs method does not mean the contlnuatfon of this methodology was unreasonable. .. - ,-- b) The Union contended' that Mr. Khong was overly critlcal of the Grlevor's "- performance, to the degree that It Illustrates his bad faith. The Unton points to the - fact that In the six performance evaluations performed by Mr. Khang, the single , . , . (' ( 8 r I I poslUve comment made about the Grlevor Is found in the- evaluaUon of May 10, 1990 In which Mr. Khong states , In relation to Tr;ainlng Audit No.7. "On this audit, having been told what to do, you were able to follow Instructions and carry out the audit tests. Your documentation of the test results was adequate! Every other' comment In aJJ 7' appraisals was utterly negaUve bo.Jb In tone and -. context. We agree with the Union's contenUon. The performance mleWl are completely unbalanced In their tone and content Even the one non-negative comment referred to In the May 10, 1990 evaluaUon Is -demeaning In tone. In 'fact" sounds more Uke 8 commentary on the performance Of'8 canine In an obedience training course rather than an objective review- of an I I I professional. These performance reviews-were not supposed to be IIlIe disciplinary nOOcel. where I the sole oblectlve Is to note negative behaviour. Rather, they are supposed to be., an obJective .. - analysis of one's total performance. The sheer negativity 01 thesn numerous 8val~tlons Is a - - dramatic example of how Mr. Khonø was not setting out to be Objectively evaJuate the GrJevor's .. performance, but rather he was sImply ·papertng the case- $0 Ihal he could get his superiors to "- I release the Grfevor. We are satisfied that Mr. Khong reached his decision about the Grlevor early I I I on hf1he process, and nothing short of a miracle was going to change his mind. To proceed with . , I an evaluation with that mind set Is certainly some evidence of bad faith. I . I , .. . . . f ,. ( 9 c) 111e Union contended .that the Grlevor's orientation was Inadequate. The Union relied partly on the fact that the Grlevor was given an out of date Interpretation Manual to studyf which did not properly reflect some recent amendments to the underlying legislation. furthermore the Grlevor was criticized for _ not doing the exercises found In the back of each chapter of the Audit Manual, however the Grlevor was not specfflcally told to do this. The employer's response was that It was expected that a professional person who Is given a manual to. re~d and learn ". should know to perform designated exercises In the book without being specifically Instructed to do so. We do not feel that the Grlevor's orientation was Inadequate. The Issuance of the out of date manual Wàs èaused by the fact that there was no up to date manual Inexistence. Previous auditors had been trained with no manual at all. Furthermore we find that It Is peMeetly reasonable for Mr. Khong to have expected the Grlevor to do the exercises without specifically having been told to do so, as you would expect tbat sort of Initiative from an audl~rf especlall,..:.". one whof like the Grlevor f had obtained a M.B.A. from an American university. " . ~ d) The Union submitted that Mr. Khong was unwUllng to acknowledge that when the . ---- Grlevor did something different from the way either Mr. Tam or Mr. Sosln did It, - It could not be due to a difference In professional ludgement, rather the Grlevor was simply wrong. However when Mr. Sosln or Mr. Tam disagreed with Bach other . . " ~ . . ( r-' 1 , 10 or wIth Mr. Khong, It was a matter of professional Judgement. There were a number of examples of this situation In the evidence. One example will mUltrata this attitude. Mr. Khong was very concerned with the Idea that an auditor could. not properly do an audit without first Identifying what were the -key concerns-. He constantly crIticIzed the Grlevor for either .not JdentJtrlng something as a -key concern- or when the Gl1evor did Identify something as such, being criticized because. In Mr. Khong's opinion, that Item was not a -key concern-, but only a -concern- or a -minor concern-. However when either Mr. Tam or Mr. Sosln did the same thing, Mr. Khong accepted It as a -'egitimate professional difference of opinion- . Again, In the first training audit, the Grlevor went out with Mr. Tam. Mr. Tam seemed to be a easy going sort of guy, and lor th" audit, the Grievor was not I I 'asked to prepare a '1empJale- or plan of the audit, as Mr.. Tam himself did not follow that procedure. However on the second audit, the Grlevor went out with Mr. Sosln. who was more of the mould at Mr. Tam. The Grlevor did .not 'prepare a ,..-..... template for this audit, however he was soundly criticized ~ both Mr. Sosln and Mr. Khong for this gross derellctJon of duty. .. -- We agree with the Grlevor's position on this Issue. TIme and time again the evidence showed that Mr. Khong was unwnUng to g've the Grtevor \he benefit of the doubt when he freely gave It to Mr. Tam and Mr. Sosln. Mr. Khong seemed Ita have little or no respect for the ". . . ( (' . ~ 11 ( . Grlevor's ludgement At one point he criticized the Grlevor as being too diligent In trying to recoup monies owing to the Government, however that was one of the prime functions of his department Presumably Mr. Khong preferred the attitude of Mr. Tam, who when asked by the Grlevor why they should .not pursue this collection, responded, ·Why should we make the man suffer tor It?-. e) The Union submitted that the 6 month period In which the Grlevor was assessed was too short. Although the other 4 auditors received 3 months or less trainIng, " the UnIon submlUed that they came Into the, Job with more qualifIcaUons. In that they had either previous auditing .experlence or experience dealing with ~e Small Business Development Corporation Act, whereas the Grlevor had neither. In effect the Union was saying that where the Employer chooses to hire someone without ' the proper qualifications and experience to do the lob, they must accommodate the Individual by either lengthening or redesigning the training or tamlllarlzatlo~ per,od accordingly. ~. ....~ We have trouble with this submission In so far as It virtually suggests that where the Ministry In effect hires an unqualified person, that person Is entitled to special consideration .. during the probationary period. We do not feel that the obligation to reasonably assess someone . '-'0.,- should require the Employer to go to that extent It was reasonable for Mr. Khong to assume that the-Grlevor would be up to speed within 3 months, as that Is the lengthiest period that the other auditors took. The fact that the Grievor had 6 months to prove himself only supports the fairness - . ( ¡" ( 12 of the length of the probationary period In the Grlevor's case. The problem here was not the I length of the period, but rather, what went on during those 6 m(.nUls. t) The Union submitted that Mr. Tam exaggerated tho Grlevor's faults to his superiors when ha recommended the Grlavor's release. Mr. Khong did not have Oie authority I to release the Gflevor, rather that power vested 1111 William Gullar, Manager of the Small Business Development Corporation Program. However an oUhe Mr. Gullar's - Information came from Mr. Khong. Some of thelnformaUon ilrovlded by .r. Khong to Mr. Gullar was clearly wrong. For Instance, In his letter of May 10, 1990 to Mr. Gullar,Mr. Khong stated that the Grlevor IdenUflad none of the -key Issues on the seven training audits he undertook-. The Union pointed out that In a previous performance evaluation dated April 9. 1990 the Grievor was criticized lor only Identifying one ot two key issues. Clearly theret:ore he must have Identified onl key Issue on this audit, thus Mr. Khong', comlment to Mr. Gullar Intentionally painted a worse picture of the Griavor than the facts would support. ..- - I TIlls Board agrees 'thai Mr. Khong fended. to exaggerate the Grfevors bad points .. When recommending to Mr. GuUar that the Grfevor be released. This was undoubtedly In part - - ! because Mr. Khong decIded three months previous that,the Grlevar was not capable of performing I the lob. One could assume that Mr. Khong may ha\f8 wanted to Insure that hIs supervIsors would I I support his release recommendation and for that reason he pres:ented the somewhat misleading ; I . . í í . 13 report of May 10, 1990. This action Is clearly a sign of bad faith. . g) The Union submltted,that Mr. Khong', reluctance to procell the Grlevor's education request was evidence of bad faith. In late January or early February, the Grlevor asked. Mr. KboRg to sign off on I form so that he could be reimbursed by the " Ministry fo, a eGA course he was taking. Despite their being no question thai the Grievor was entlUed to this payment due to the work related aspect of this course, - _. Mr. Khong Intentionally ·sat on· this request fo', a number of weeks. When asked why he did this Initially Mr. Khong said he had no particular reason. On further , thought, Mr. Khong laid that he dldn't return It to the GrJevor 'because he wanted him to concentrate on the lob training and furthermore If the Grlnor needed this COURe, then he was misleading the Ministry as to his actual quallflcations. We find Mr. Khong's attitude towards this Incident especially distUrbing as It seems to Indicate that Mr. Khong felt these courses were a waste 0' time for the Grlevor. Ibis Is odd -..,...- because at the same time he was urging the Grlevor to update his basic accounting skills. Mr. Khong's lob was 10 fill out his portion of the form and let the Grtevor submit It He had no right " to Intentionally delay the processing of this form and his actions In so doing indicate his overall . .-.- attitude and bad faith towards the Grievor. ~ · , ( , 14 h) The Union submitted that the Employer's fa II u rei to provJde the 'documentation regarding Training Audits 6 and 7 meant the Employer had failed In Its onus to prove the Grlevor's Incapacity. This Board was I¡rovlded with all the backup for I Audits 1 to 5, however not for the last two audlh;. This was somewhat troubling to us because we were frankly more Interested In how the Grlevor performed at the end of his probatronary period rather than at the beginning. In so far as we have found that Mr. Khong's ability to obJectively assess the Grlevor's performance was questIonable, we can place IIWe reliance on his evaluation of the Grievor's performance In these audIts. What we do have however Is the, Griovor'$ evidence that by Audit 7, he felt he was starting to get the hang of IL, Mr. Tam tesUtled that the Grferor Improved by Audit 7. However we do not feel that we can safely , conclude that the Grlevor was capable of performing the Job as of his date of I release, and therefore the absence of documentary evidence on Audits 6 a~d 7 Is I not fatal to the Employer's case. I ¡ ì- ---------- I / ,. - I : In summary therefore, we find that although we are satisfied that ~e Grievor was - ' I not In fact capable of fulfilling the requirements of his position as of the date of release, we also , I .. feel that the Ministry's evaluation process was neither fair, reasonable, nor performed In good / faith. ' c_·_ ~---" I i i I · ( ( = ; 15 In normal circumstances the Board would then have fashioned a remedy putting the Grlevor back to his previous poslUon with' 6 months of his probaUon to run. However on the last day of the hearing, during the Union's argument, we were surprised to hear that the grlevor's requested remedy was not that he be returned to the position from which he had been terminated but rather that he be put Into the first available F03 position for which he Is qualified. Through his counsel he stated that It would not serve either his or the ,- Ministry's Interest to put him back Into the Small Business Development Branch. The Union was a'so maintaining that he should be compensated tor his 'ossss from hIs date of termination (May 17,1990) to unUI he Is In fact placed In a F03 poslUon~ The Union said there should be some cap to his future entlUement, and suggested 6 months. This position on remedy also took the Ministry by surprise, and as such the. Board allowed Ministry counsel to reply to this poslUon by written argument on a later date which be did on August 14. 1992 as follows: 'p-.- -REMEDY - ' , On the last day of hearing, the Union surprised us by requesting r8~ ,,, Instatement to the first available position (other than the SODC auditor F03 position) which the grlevor Is qualified for and .-.,...- compensation to the date the new Job begins. The Union did not I contend that the grievor meet the requirements of the position - ~ which makes the nature of the remedy requested all the more Intriguing. , , ( \ , . 16 We submit that the requested remedy Is Ina~lproprlate lor two reasons. First. It Inappropriately attempts to borrow lrom remedial approach In disciplinary matters where arbUrators have Jurisdiction to substitute lesser penalties for discipline Imposad by management : See the Crown Employees Collective Baraalnina Act. s. 19(3). The I express statutory authority tosubstltute re-InsGltement to another i poslUon Is strictly limited by CECIl, s. 19(4). to 1:lrcumslanc8s that have no relevance to our situation. Second, It Is contrary to governing remedial plrlnclple that apply where a non-discipllnary grievance Is upheld - namely. to the extent possible. to put the arlevor In the same state that he would have been In had the collective agreement [or Public Service Act] not been breached. In cases where the employer unsuccessfully asserts that It released the grlevor, the standard remedy Is re-Instatement to the same position held -at the time of termination: see Gulshan Abdulla and the Ministry of Municipal Affalrs-l 1103/85 (Verity); Don Sheppard and the Ministry of Government Services. 249118& (Slone): Manon Shlrallan and Ministry of Government Services. 0914/86 " (Roberts)~ We know of no probationary release case where, this Board ordered re-Instatement to a different position. These points aside, re-Instatement to some other position would I likely lead to further disputes between the parties. He-Iostatlng the grlsror to a different poslllon would provide him with a benefit over I and above damages actually Incurred as It wDuld award him a I position for which he was never required to ,coml~ete. ~or example, n the grfevor Is given the opportunity to·shop around· for a position, dls.putes may arise as to whether or not the grievor Is or Is not qualified for a given position. Also. the expdctsd delay In locating_ -....-.- any such position would make any calculation of monetary compensation (if any) Impossible as of the date of the Board's decision. In contrast, the usual remedy of re·lnstatement'to the former posJtJon. on the other band, would ensure certainty In the Board~s decision and aUow the parties to Implement It quickly without need of further third party Intervention.· ._.~ ~ In considering a remedy in this case. the Board makes the following observations. . ." I ( , .. . 17 First of all, It Is clear that any re-Instatement would be to a probationary posItion with the balance of the probationary period to run. this has been the procedure followed In a number of probationary re-Instatement cases [Walker 1272188 (FIsher), Sheppard 2492186 (Slone) and Nicholson 1294/18 (Ratushny)]. Secondly In terms of compensation, although' a number of awards have aulomatlcally given compensation upon re-Instatement ,walker 1272188 (Fisher)) some awards have not (Manlate 56m (Swan)). " one appltes the basic principles of contract damages to these cases, the rule Is that the Grlevor should be put In the same position he would have been had the contract not been breached. If the contract had not been breached, the grievor would have been In the position that at any time up to the end of his probationary period he could have been released due to his. failure to meet the requirements of the lob. He would only achieve the coveted prize of permanent status , once be had successfully completed his probationary period. It follows then that we do not know "'. '.0·- at this point whether or not the grievor will pass his probationary period If he Is reinstated. In fact he could be reinstated to his probationary status and fall to pass probation. If that Is so, why .. reward him now with over 2.5 years of back pay? Instead the compensation award should be made conditional upon this successful completion of the reinstated probationary period. this _.n arra-Dgement would provide him with the full compensation to which he may be entllJed while at the same time prevent him from receiving an unearned windfall payment. - . I i . 18 I ' ' Thus. If the grlevor were to be~ reinstated, this; Board would not provide for automatic compensation, rather we would make It a condition tll\at h's compensation award be contingent upon the successful completion of his probationary pnrlod. I this brings us back to the" main question as to whethef Of not this Board should . grant the unusual remedy requested by the Grlevor, that Is relnsltatement to a different position ,than the one he was terminated from. First of allft should be noted that this Is not like the sort of case where a Board I reinstates 8 person to a different location due to a breakdown of the emplovmeßt relationship at a partleular slle. In Kowal 813/88 (Vertty) the Board re'nstateÐ\, a pharmacIst but to a location I other than where he previously worked. This was done because there was a complete breakdown In the relationship between the grlevor and his supervisor. It Is, Important to note however that first of an the grlevor was not a probationary employee, and secondly his position of pharmacist remained the same, only his work lite changed. In the anevor's l[:ase he was cla"l~ed as a F03, ".< - but the lob completion which he won was tor a very specific position of Field Auditor l~.the SBDC I programme. There are numerous F03 positions within the clvll service, and being qua'",ed lor one ! .. does not necessarily make one quallßed for another. The Union recognlzecll this In their remedy .- .~ request In so far IS they asked that the grlevor be awarded a F03 Job for which he was qualified. - I I . . . i ( : . . 19 However Article 4 (the posting requirement) Is not a minimum qualification test, It Is a relative equality tesl Furthermore as a probaUonary employee he has no I8nlorlty (Article 25.1) and as such would have to prove under ArtIcle 4 that he was superior (not lust relatively equal) to the other candidates. Therefore to grant the Union's remedy would give this grievor a substantial advantage over outsiders, other probationary employees, unclassified staff and even other -, permanent cMI servants. as none 01 these people are entitled to the lob simply 'by showing they are qualified. The f03 classification Is a well paying, one In terms of bargaining unlt.- classifications and would, be a coveted lob for a lot of lower classified civil servants. It Is InconceIvable that this grlevor should have a first shot at-tuch a lob to the detriment of long service civil servants and In contravention of Article 4. , " , Out of respect of the Importance of Article 4, this Board has b~en extremely reluctant to award lobs to people without the necessity of a proper competition. as can be Q evidenced In the numerous Beresford remedy cases. The Divisional Court has told us we have the . --.'.. power to In effect bypass Article 4 by awarding a position to someone without a competition, but this-power has been rarely exercised. i I' ~ ' . . I . . . 'i 20 We do not choose to exercise that power In this case for It Is not appropriate to bypass the provisions of Article 4 where it is the Grlevor who dl[)esn't wish his old lob back. We therefore have a situation where the only award which we would be prepared to make Is to reinstate the Grlevor to his old position without c:ompensation until and continent upon his successful completion of his probationary period. 111e Grlevor however has already Indicated that he will not return to such a position, thus there Is no point In making such an order As such the only remedy open to us Is to simply declare that the Grlevor was unlustly dismissed 'on May 14. 1990. Pursuant to the EmplOJlltent Standards Act. as the Grlevor was employed In excess of 3 months. he Is entitled to one weeks termination pay plus 4% vacation pay, which we order to be paid If It has not already been donel. Dated At Toronto this 15 day of 1993. .. -- - ' .. VICE·CHAIRPERSON _n ~j O!.Z-tA~ .O·TOOLE .. EMPLOYER NOMINEE -- , .. .. . ~.. N .. ...oetUOn ....1I\c.-... a... ~_d '\a"al: ; \!I.J"- ...... · .... fInft ,., ~..... ~ · ,.. ), Co<- r..~1I~¡¡~-1 _....~ I. ~--- I {'...-~\¡.... -- .... -- ·r~QM -- r·· - - ...' . '...D,C. rh.14 AIMH,or ,lDrl , . . u-"O'"Zf, .." ""-""allt.,T 1_,,,",,1 -~øt-. ...... ~i_"_.""'1 ~'r..........-....' . - 0 ..... 0 ...... 0 ... 0 [J t ~J. . r"'~." --. .6."'"W.__ - , ' ---- ..'" ~1 tion ........ .. v . " _, - - , ........ ~ ..._1-__ - . ......_ .,... "wn~, ..1\4 ~..,.t., n~.. .................-~,lÑu..."t... ~ -- -- ' .. ~'Wc ~ . Mo'~ FlHlI , 'ftIÞ&cco ~ll, 'fOVU.. _ h4 n.. 1111' hr..... "'I~ o.~~. . ,,,."'... 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