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Home My WebLink About1992-2647.Flynn.95-03-09 ~ -'-'" ~- -~"", ~ ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 11I11 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-138 180. RUE DUNDAS OUEST, BUREAU 2100. TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-139 _..-_ P. '.' 0:. -. _.........-:->.- ___ ....,.,.-__~_ -~ RECEIVED GSB 41 2647/92, 2730/92 OPSEU 41 92G725, 92G804 MAR 1 0 1995 IN THE HATTER OF AN ARBITRATION PUBUC SERVICE Under APPEAL BOARDS ~ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT '" Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Flynn) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE O. Gray Vice-Chairperson w. Rannachan Member F. Collict Member FOR THE M. McFadden GRI2VOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE A_ Gulbinski EMPLOYER Grievance Administration Officer Ministry of the Solicitor General & Correctional Services ~ HEARING November 23, 1993 April 5, 1994 July 12, 1994 - - . ._, - - , --~- -~- --- - - -- "'" {\ to ( \ Decision Allen Flynn was hired in October 1987 as an unclassified employee to per- form mamtenance work on a regular part-time basIs at Camp Dufferm. That employment was renewed m a senes of contracts thereafter untIl 1992 In 1992, at the union's request, the Ministry decided to convert that pOSItIOn into a classi- fied regular part-time pOSItion. There was a competition. The gnevor applIed and was intervIewed by a panel of three persons including James Shortt, the Camp Administrator Four of the seven other applicants who were interviewed did bet- ter than the gnevor As a result, he was out of work in late September 1994. He filed this gnevance on October 6, 1992. STATEMENT OF GRIEVANCE I do hereby grieve that the competition process for Facilities Officer (Maintenance Mechanic 2), File CI 4047 has been very seriously flawed. SETTLEMENT DESffiED That I be reinstated immediately to my previous position, with full retro pay, with interest, to date of my terermination [sic] Also that the competition be re- run with a new board, proper questions, and only those individuals meeting the 40 km area of search from the original candidates be allowed interviews. He filed thIs grievance on November 2, 1992 STATEMENT OF GRIEVANCE I grieve that I have been unjustly dismissed from my job position as Maintenance Mechanic 2, at Camp Dufferin. SETTLEMENT DESffiED That I be reinstated to my position immediatly [sic], with full retro-active pay to the date of my dismissal, including interest on all monies own. [sic] Those are the grievances referred to arbitratIon in this proceedmg The unIOn concedes that as an unclaSSIfied employee, the gnevor does not have the right to grieve an alleged violation of Article 43, the proviSIOn of the applicable collective agreement whIch governs the fillmg of vacancies. The un- IOn's pOSItIOn IS that the employer's deCIsion to deny the gnevor the permanent pOSItIOn was motivated by hIS age and past medIcal problems contrary to Article .-y... ( .~. - ;I- 2 A.I or was otherwise made 10 bad faith, and that thIS board has JurisdictIOn to entertain a grlevance by an unclassified employee on either of those gro~nds The grievor was SIXty years old at the time of the competition. In the two years prior to the competition he was absent from work for medical reasons on two occasions, each of 6 or 7 weeks' duration. It is common ground that the gnevor's performance m the unclassIfied pOSItion was satisfactory, and that the Job for WhICh the competition was held was essentIally the job he had been doing Roy Lawder was, a correctIOnal officer at ,Camp Dufferih. He was the shop steward at the time of the competition. He met with Mr Shortt on October 22, 1992 He testified that he asked Mr Shortt why.the grievor did not get the job He claims Mr Shortt replied "Roy, you have a responsibility to the union and. your members, I have a responsibility to the Ministry" and "put yourself in my shoes. If you were in my shoes would.,you hire a 60 year old man who has already undergone two senous operations in his life, knowing perfectly well that the best yO\ire going to get out of mm IS five years' work?" Mr Lawder claIms to have re- sponded by saying that If that was the reason Mr ShoJ,t,t did not hIre the grievor, he had made a serious mistake. He says Mr Shortt replied that "the fascmatmg thing about two people haVIng a conversation is that either one can deny It ever happened." Mr Lawder was transferred to Millbrook at his own request in January 1993 He testified that he was not sure when he requested the transfer He could not even say whether it was made some time in 1992 Mr Shortt testified that around October 22, 1992, he met with Mr Lawder to discuss Mr Lawder's personal s~tuation. He says Mr Lawder had a number of personal Issues, was under extreme stress and was haVIng difficulty controllmg his emotions. He suggested that Mr Lawder take personal leave, but Mr Lawder was concerned that that mIght compromise the request for transfer whIch he had by then made. Mr Shortt also suggested that Mr Lawder take ad- vantage of the Employee AsSIstance Program or consult WIth a psychiatrist who l had prOVIded confidentIal therapy for employees in the past. Mr Shortt testified that there was no dISCUSSIOn about the grIevor on thIs occaSIOn, the focus was entirely on Mr Lawder's SItuatIon. He derues ever saying the thIngs Mr Lawder claims he saId on October 22, 1992 .t!-~ ~~ , ( I 3 Mr Shortt testified that he had no concern about the grievor's age In- deed, he saw It as an advantage m deahng wIth teenage offenders He encour- aged the grievor to prepare for the competitIOn when the permanent vacancy was posted. He would have had no concern about placing the grievor in the perma- nent position If he had not done so poorly in the interview Indeed, earlier, on January 29, 1992, he had sent a memo to his superior recommendmg that the grievor and the mcumbent in another positIOn which was to be converted be ) waIved into the permanent pOSItIOns without a competition, having regard to their length of servIce and "excellent work record," as well as the savings associ- ated wIth not holdmg formal competItions. Mr Shortt saId he was "bowled over" by the gnevor's poor performance at the mterview One of the grievor's answers to a questIOn about electrical wirmg "would have resulted in his death," he saId. ," The union's argument starts wIth the propOSItion that there must be something serIously wrong with a competition in which the mcumbent m the subject position does so poorly after performing in that pOSItion satisfactorily Further, all or some of the selection committee must have understood that there must be something seriously wrong with the competition. The union submIts that the fact that the committee would nevertheless recommend that the results of the competition be acted upon suggests that they were motivated by some ir- relevant or improper consideration. It inVItes us to accept Mr Lawder's eVIdence about what he claims Mr Shortt said, and conclude that Mr Shortt had an age bIas which tainted the result of the competition. Mr Shortt knew of the grievor's age and medical history in January 1992, when he recommended in writing that the grievor be gIven the permanent posi- tion without a competition. If hIs age and medical hIstory were not then a reason for Mr Shortt to seize the opportunity of a competltlon in the hope of replacmg the gnevor wIth someone else, it IS not apparent why those matters should later have become for Mr Shortt a reason to deny the grievor that pOSItion. We accept Mr Shortt's testimony that they did not playa part in his assessment of the grievor's applicatIOn in September 1992 We reject Mr Lawder's testimony that Mr Shortt saId otherwise on October 22, 1992 as implausible 10 all the circum- stances. ( i , I ;';:...- -~.' 4 The unIOn has not establIshed that the employer breached Article A or engaged inb,ad faIth conciuct in its dealings wIth the gnevor while he remained an unclassified employee. HIs, grievances are therefore dIsmIssed. Dated this 9 t hCiay of March, 1995 ~ v:~ Owen V Gray, Vice-Chair ~/cr=~,~.c,~ -=-- W Rannachan, Member f{~