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HomeMy WebLinkAbout1992-2536.McKay.93-11-09 ---- - - ~--;---=- . J..l,'~ -r " /' (--. C' - h ONTARIO ;\-...j""~ EMPLOYES DE LA COURONNE ,,;'~'.Y " ,;. :~ " CROWN EMPLOYEES DE L 'ONTARIO ' . '- .' 1111 GRIEVANCE COMMISSION DE , . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONEITEU!PHONE (416) 326-1388 180/ RUE DUNDAS OUEST Bl:iREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE f416) 326-1396 2536/92 IN THE MATTER OF AN ARBITRATION Under L THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMEN~ BOARD BETWEEN OPSEU (McKay) Grievor - and - The Crown in Right of ontario (Ministry of Health) Owen Sound Emergency Services Employer BEFORE: W Kaplan Vice-Chairperson I Thomson Member D Clark Member FOR THE H Sharpe UNION Counsel Gowling, strathy & Henderson Barristers & Solicitors - FOR THE J Middlebro \ EMPLOYER Counsel Midqlebro, Stevens & Marsh / Barristers & Solicitors FOR THE E Chrysler THIRD PARTY HEARING October 20, 1993 I i -- 2 Introduction By a grievance dated October 18, 1992, Terry McKay, an Ambulance Officer with Owen Sound Emergency Services Inc, grieves a violation of Article 13 06(a) of the Collective Agreement. It is the union's position that the grievor, as a result of his seniority, should have been awarded the Station Supervisor's position which was posted in October 1992 It was the employer's position that there was no Collective Agreement violation The case proceeded to a hearing in Toronto, at which time evidence and argument were heard The successful applicant, Mr Edward Chrysler, appeared on his own behalf, gave evidence and made submissions It should be noted in passing that there were a number of questions raised throughout I the case as to wh~ther Mr Chrysler was paid a remittance for his position as Training Officer, and who paid for the various courses which he attended In our view, both the questions and the answers are completely immaterial to the issue before us, and do not, in any event, indicate any impropriety on anyone's part. Article 13 06(a) of the Collective Agreement provides. In filling job vacancies, including promotions, transfers, and new positions within the bargammg unit, the job shall be awarded within thirty (30) working days of posting, or such longer period as is agreed between the parties, such agreement shall not be unreasonably withheld, to the senior applicant provided that he is able and qualified to perform the position The Evidence , Much of the evidence was not in dispute The grievor and the incumbent both work for Owen Sound Emergency Services Inc. (hereafter "the I employer) The employer operates three ambulance stations, one in Owen \ - 3 Sound, one in Port Elgin and one in Kincardine The latter two bases are satellite stations to the main Owen Sound station The grievor's seniority date with the employer is July 1976 The incumbent's seniority date with the employer is May 1977 In 1992, as a result of the retirement of Mr Elgin VanWyck, the bargaining unit position of Station Superintendent became vacant. The grievor expected, as a result of his seniority, to obtain this position It was instead awarded to Mr Chrysler, and the grievor believes that this result was preordained in that the required qualifications ) for the job were tailored to fit Mr Chrysler It is useful to point out that Mr Chrysler was the training officer for the Owen Sound base and, as will be set out below, possesses certain recognized instructors' qualifications There are Station Managers at both the Port Elgin and Kincardine bases, both of whom possess some instructors' qualifications It should also be noted that the job posting at issue in this case provides as a prerequisite that applicants possess 3 years of full-time employment as an EMCA. There is no dispute but that both the grievor and the incumbent possess this qualification It additionally indicates that "preference will be given to those applicants who are certified as CPR, First Aid & B T L.S Instructors and have i completed the E.H S Service Instructors workshop" Testimony of Terry McKay The grievor testified on his own beha~f He told the Board that when Mr VanWyck was hired in 1983 he possessed the CPR Instructors course qualification, and taught that course for a time After a short while, however, he allowed his qualification to lapse and Mr Chrysler became qualified to teach this and other courses In the grievor's view, I ! 4 qualification as an instructor is not necessary to perform the Station Manager's position, and the fact that the previous incumbent allowed his qualifications to lapse provided proof to him of the point. ') The grievor identified a copy of the posting and he testified that he could perform all of the duties and responsibilities listed on the Station Manager's job description attached to it. The grievor was asked whether he was given any opportunity to attend the ~ H S Service Instructors workshop, and he testified that he was not even aware that that workshop was taking place1 although he later heard through the grapevine that Mr Chrysler had attended The grievor testified that he was a fully qualified EMCA, and that the employer was aware of this He testified that as part of his college training he has taken various courses such as "Managing an Airway" and "Childbirth" The grievor testified that the incumbent was the only person qualified as a B T L.S (Basic Trauma Life Support) instructor, and he testified that Mr Chrysler was asked to take this course several years ago Everyone knew that Mr VanWyck was retinng, and the ,grievor expected, being number one on the seniority list, that he would get this job. However, when he saw the posting he realized that he would not be successful, and he testified that he believes that the posting was crafted to ensure that Mr Chrysler was the successful candidate. He testified that if he had known that the various courses indicated on the posting were qualifications for the position he would have taken those courses and obtained those qualifications Moreover, if he had been invited to take the E.H S Service Instructors course he would have done so The gnevor told the Board that he is not a First Aid Instructor, and does not believe that First Aid is a significant requirement given deyelopments in the field The grievor ------ 5 testified that he has leadership abilities and indicated he got along well with his fellow employees He also told the Board that he has served on town council and was, for a time, deputy chief of the local fire department. Cross-Examination of Mr. McKay In cross-examination the grievor agreed that his last formal training took place in 1981 when he completed his one-year college course While the grievor testified to having taken other courses in his capacity as deputy fire chief, he agreed that he did qot notify the employer of any of these courses The grievor's application for the position was introduced Into evidence Suffice it to say that is a one-paragraph handwritten letter applying for the job and making scant reference to his qualifications for the position The grievor agreed that with the exception of the E.H.S course, he had just as much opportunity, over the years, as Mr Chrysler to take various courses and to become qualified as an instructor He agreed that information about available courses is regularly posted and easily available to all employees. The grievor testified that one reason why he did not take -, these courses was because he was busy with his family and community responsibHities and because he felt that he was fully qualified to perform his position, and as he had no desire to become an instructor, and as the Station Manager was not an instructor, he could see no reason to become \ \ qualified as an instructor He testified that he was away in England in 1983 when Mr VanWyck became Station Manager, and he did not know that that posting also required instructors' qualifications Testimony of Tom Churchill Tom Churchill testified. He is the co-ownerQf Owen Sound Emergency Services Inc He testified that when Mr VanWyck was hired in 1983, ---- I " 6 qualifications for the position included EMCA, and CPR and First Aid Instructors status He told the Board that -when Mr VanWyck retired, management decided to upgrade the Station Manager's qualifications and responsibilities Mr Churchill was asked about the Ministry of Health's E H S course, and he testified that he was approached by the Ministry and asked to suggest employees to go on that course Documents introduced , into evidence indicate that only employees who possessed certain qualifications could be sent on that course The mandatory qualifications included EMCA and approval by the Regional Office through the certification process The preferred qualifications included a desire to promote continuing education within the service and some related teaching / experience In Mr Churchill's view, Mr Chrysler was the only employee at the Owen Sound station who possessed these qualifications, and \ so he was sent on the course i Mr Churchill was asked about the job competition at issue in this case. He testified that three applications were received, one of which was subsequently withdrawn The grievor did not submit any suppQrting docLiments with his application, and so Mr Churchill reviewed his personnel file That review indicated that the grievor had not taken any new courses sinc/e completing his college course in 1981 other than the required upgrading ofhi~ certificates. In contrast, Mr Chrysler had taken a great number of courses. MrChurchill testified that management decided to require instructors' qualifications because it had done so in the past and because of the rapid rate of change within the industry Management wanted to hire a Station Manager who was up to date, who showed initiative and who could assume additional managerial responsibilities In Mr Churchill's view, while the grievor was clearly more senior, he had none of ( 7 the qualifications other than EMCA and three years of ambulance officer experience, and accordingly was not given the job Cross-Examination of Mr. Churchill In cross-examination, Mr Churchill testified that when he asked Mr Chrysler to take the E.H S. course he had not decided to make completion of that course a preferred qualification for the Station Manager's position Mr Churchill reiterated his evidence that Mr Chrysler was asked because he was the only person at the Owen Sound station wh9 had the qualifications to attend Mr Churchill rejected a number of repeated suggestions that the incumbent was selected in advance for the Station Manager's position, or that the qualifications for that position were tailored to him He testified that as Mr VanWyck's retirement approached, management began discussing the Station Manager's position and determined that it would be a good idea to upgrade the qualifications for the position, as well as the nature of the responsibilities attached to it. Mr Churchill testified that Mr Chrysler, since taking the E.H S course, has updated employees in various techniques such as use of fracture boards and the scoop stretcher He noted that accepted practices and equipment are changing all of the time, and it is necessary for ambulance officers to ~eep abreast of these changes. He agreed that in the past the Station Manager and Training Officer positions have been distinct. Mr VanWyck did not do ) any training He noted, however, that the Training Officer position is a voluntary one and the incumbent did not receive any additional remuneration from the employer for his work as the Training Officer Mr Churchill agreed that he knew before he posted the Station Manager -~ - \ 8 ( position that Mr Chrysler wa~s the only employee qualified to fill it. He testified that Mr Chrysler's curriculum vitae was impressive, while the grievor simply submitted a handwritten note He agreed that the posting did not say that resumes should be submitted. He refuted a suggestion that by combining the training position with the Station Manager's position he was eliminating a job, and testified that it was management's right to change both job qualifications and position descnptions \.. Testimony of Edward Chrysler Edward Chrysler testified on his own behalf He told the Board that he noticed in 1983 when Mr VanWyck became Station Manager that instructors' qualifications were required, and so he began to systematically acquire those qualifications A copy of his application for the instant position was introduced into evidence, and it indicates that Mr Chrysler has taken a wide variety of emergency care courses and has recently completed the Ontario Management Development Program. Mr Chrysler testified that all of the emergency courses, with the exception of the E H S course, have been available to all employees: He described some of these courses. He noted, for example, that knowledgebf B T L.S is extremely important, and can make a big difference in saving lives Cross-Examination of Mr. Chrysler In cross-examination, Mr Chrysler testified that he took the B T L.S course on his own time Mr Chrysler disputed a suggestion from union counsel that senior Ambulance Officers such as the grievor who have not taken the B T L.S. course are nevertheless fully familiar with it. While the grievor and others could obtain the training manuals and could review them, that was / - 9 no substitute for actually receiving the training and conducting appropriate practice exercises Mr Chrysler testified that he took the CPR and First Aid Instructors courses because he knew that they had been qualifications in the past for the S~ation Manager's Job, and he expected that they would be qualifications in the future Since taking the E H S. course, Mr Chrysler has, on a number of occasions, instructed employees in various subjects The evidence having been completed, the case proceeded to argument. Union Argument In the union's view the Collective Agreement was clear. where two candidates were both qualified for a position, the position must be awarded to the senior applicant. In union counsel's submission, the evidence established that the grievor was qualified for the Station Manager's position in that instructor's qualifications were not necessary for the performance of that job Accordingly, the grievor should be awarded the job Union counsel noted that there was no formal interView process, and she referred to Mr Churchill's evidence, which was to the effect that the employer knew that the incumbent was the only person qualified for the position In counsel's view, the employer should not have required \ instructors' training given that Mr VanWyck had performed the job in the past and even if he had once possessed that certification, he quickly let it lapse Union counsel noted that the grievor was aware that Mr VanWyck did not act as an instructor, and .so there was no reason for him to acquire that training. The grievor wanted to perform the Statioh Manager's job in the same way that it had been performed by Mr VanWyck. Counsel argued, that 10 having established that instructors' courses were not necessary to the position, and given the evidence that the grievor could perform the job in \ \ the same way as Mr VanWyck, the Board should find that the grievor should have been given the position because of his seniority Counsel noted that there was absolutely no dispute in the evidence that the grievor possessed the qualifications to do the job as it had been done by Mr VanWyck In union counsel's view, the employer had unfairly assisted Mr Chrysler by requiring instructors' training and by sending him on the E H S. course While the employer has the discretion to change job descriptions and qualifications, it must, in the union's submission, exercise that discretion fairly, and counsel argued that in this case it had not. Union counsel argued that the effect of all of this was to degrade and interfere with the grievor's seniority rights, and as there was no legitimate business reason to do so, I the Board should direct that the grievor's seniority interest be recognized and award him the position in dispute Counsel noted that the Station Manager and Training Instructor positions have always been distinct, and there was no business reason to interfere with the status quo Union counsel argued that simply because the Station Managers at Port Elgin and Kincardine had instructors' qualifications, did not mean that they were actually doing any instruction Counsel referred to a number of cases in support of these submissions including Re Northwest Child & Family Services Agency and CUPE. Local 2153 12 L.A.C. (4th) 383 (Bowman), Anderson 3005/90 (Watters), Re United Parcel Service Canada Ltd. and Teamsters Union. Local 141 29 L.A.C (2d) 202 (Burkett), Da Costa 570/84 (Samuels), Greenberg v. Meffert et al 50 o R. (2d) 755 (OCA) and Bousquet 541/90 (Gorsky) At the end of the day, in I 11 the union's submission, the employer had acted unfairly and in contravention of the Collective Agreement. Accordingly, union counsel urged us tq uphold the grievance, direct the employer to award the Station Manager's position to the grievor together with back-pay and interest, and remain seized with respect to the implementation of our award Employer Argument Employer counsel began his submissions by referring to ArtiCle 4 01 (d) of the Collective Agreement, which provides, in part, that it is the exclusive function of the employer to determine the content of jobs In this case, employer counsel argued, the employer determined in selecting a new Station Manager that it wished that person to possess instructors' qualifications In making that determination, the employer did not change any of the qualifications from previous job competitions for that position, although it did upgrade the nature of those qualifications Employer counsel noted that there is a teaching aspect to the Station Manager's position, and he noted that the job description itself, which was introduced into evidence, indicates that the incumbent possesses certain training duties including the supervision of orientation, in-service and other training programs, and additionally participates in training sessions and seminars. Very simply, in the employer's submission, training and ) instruction is an important part of the position, and the fact that Mr VanWyck did not maintain his training qualifications was not material to the instant job competition The employer was entitled, by the Collective Agreement, to establish job content and qualifications, and in this case it determined for sound business reasons to require such training experience Counsel cited Re The Tribune and Communication Workers of America. Local 12 r- 226 4 L.A C (4th) 390 (Chertkow) in support of this submission In the employer's view, even a cursory review of the two applications for the position established that Mr Chrysler was qualified and that the grievor f was not. Counsel noted that despite the cursory nature of the grievor's job application, Mr Churchill nevertheless reviewed his file in order to determine whether he had any training qualifications, and discovered -/ instead that he had not undertaken anything but the required upgrading programs since completing his college course in 1\981 Employer counsel noted that the evidence was uncontradicted that instructors' qualifications were required when Mr VanWyck got the job, and that had the grievor wished he could have availed himself of numerous opportunities to obtain those qualifications It was twe enough that the employer had not suggested the grievor for the E.H S. course, but that could be explained by simple reference to the fact that the grievor was not qualified to take that course Counsel noted that the grievor does not even possess the qualifications that were required for the position in 1983 In conclusion, employer counsel asked that the grievance be dismissed Decision Having carefully considered the evidence and arguments of the parties, we are of the view that this grievance should be dismissed. The evidence is clear and uncontradicted that the employer decided, for business reasons, to upgrade the preexisting training qualifications required of the Station Manager It is true enough that the previous I incumbent did .not make use of his qualifications and, in fact, allowed them to lapse, but we can hardly find that this fact prevents the employer, once , C' ;; 13 the position becomes vacant, from determining that such qualifications are necessary to it. We de not find any unfairness or interference with thegrievor's seniority rights There is no evidence to support the allegation that the employer preselected the incumbent and tailored the job posting to him Indeed, the evidence is to the effect that the incumbent selected himself in that over the course of a number of years he systematically obtained the skills necessary for the Station Manager's position. He took note of what skills were required of Mr VanWyck, and he went about acquiring them.. The fact I that the incumbent was sent, in preference to everyone else at the Owen Sound station, to the E.H S course is the simple result of the fact that the incumbent was the only employee at that station who had the qualifications necessary to be accepted in that course There is simply no evidence of favouritism, bad faith or any untoward, conduct on the part of the employer At the end of the day we find that the employer, as it was entitled to under the Collective Agreement, established certain qualifications for the Station Manager's position It sought applicants who were certified as CPR, First Aid and B T L.S Instructors and who had completed the E H S Service ( Instructors workshop These qualifications are demonstrably relevant to the position in question, and it was well within mana~ement's right to require these credentials as a qualification for the position The fact that the posting indicated that preference would be given to applicants with these credentials does not, on the facts of this case, indicate to us that they were tangential or unnecessary to the performance of the position The, evidence on this point was to the opposite effect. And the evidence is clear that while the grievor is along-service employee who is undoubtedly -- --- ~, ! 14 rendering valuable service to the employer, he did not possess the necessary qualifications for the Station Manager's position Accordingly, and for the foregoing reasons, the grievance is dismissed DATED at Toronto this 9th day of November, 1993 IJV v---- -------~--------- William Kaplan Vic~-Chairperson ~~---- C/~ Thomson Member 1b. ~ d/ _r - ---------- D Clark Member ( ) I (