Loading...
HomeMy WebLinkAbout1992-2993.Kinsella.95-09-29 "'ff / 1;.J: "" EMPLOYES DE LA COURONNE J ONTARIO --; CROWN EMPLOYEES DEL 'ONTARIO ?j, GRIEVANCE COMMISSION DE , 1111 SETTLEMENT REGLEMENT ,BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZiJ TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 GSB # 2993/92 OPSEU # 93A078 IN THE MAT~ER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Kinsella) Grievor . - and - The Crown in Right of Ontario (Ministry of Correcttonal Services) Employer BEFORE H Finley Vice-Chairperson J C Laniel Member D Clark Member FOR THE K Whitaker GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors J FOR THE M Mously EMPLOYER Grievance Administration Officer ~inistry of the Solici~or General & Correctional services HEARING November 17, 1994 February 7, 1995 March 9, 1995. - , " "- .. GSB # 2993/92 DECISION Mr PatrIck Kinsella, who became an unclassified CorrectIOnal Officer WIth the Mimstry I / of the SohcItor General and CorrectIOnal ServIces In January 1991, grIeves that In early 1992 he was demed consIderatIOn for a postIng for a CorrectIOnal Officer 2 at the Waterloo DetentIon Centre located In Cambndge, Ontario, on the baSIS of Ins gender The successful candIdate and Incumbent, KImberley MacInnis, who has a contInUOUS servIce date of October 24, 1988, was r- gIven notIce of the heanng but dId not attend. Mr Kmsella IS requestIng that he be placed In the pOSItIOn and that he receIve retroaCtivIty With Interest, as well as reImbursement for hIS commutIng expenses. The partIes agree that should the Board rule In the GrIevor's favour, that the partIes should determIne the retroactIvIty and that the Board should remaIn seIzed. Relevant ArtIcles, LegIslatIOn, DIrectives and Gmdehnes are found begInnIng at page 21 A ConCIse Chronology has been proVIded In AppendIx A. u THE EVIDENCE The Union. Patrick Kinsella - Grievor Mr KInsella began workIng for the Mimstry of the SoliCItor General and CorrectIonal ServIces in January 1991 as an UnclaSSIfied Correctional Officer at Waterloo DetentIon Centre. He has determined that he wishes to have a long-term career in the corrections field and therefore IS Interested In advanCIng In hIS chosen profeSSIOn. Mr Kmsella has apphed for other pOSItions In the system in order to advance his career goals and at the time of the heanng, haVIng been successful In another competitIOn, was a ClassIfied CorrectIOnal Officer, employed at the Stratford JaIl. , Mr Kmsella has a Diploma in Child Care from the Dublin Institute of Technology (1985) and from 1986 to January 1991, worked as a CInld Care Worker In a medIum-secunty facIhty, as a Child and Youth Worker In an open-custody program for young offenders, and as a Family ServIces Worker and Case Manager In a children's mental health centre ThIS expenence ~ ) '~ has, he beheves, provIded him With skIlls, partIcularly in the counselhng field, whIch are transferable to the correctIonssettmg, even though his work at Waterloo and Stratford has been With the adult Inmate populatIOn. He has contmued to broaden hIs professIOnal development through both work-related and volunteer actIvIties. Mr Kmsella has a partIcular current mterest m the field of human nghts and as a result of hIs concern and expenence has become mvolved wIth the OPSEU Human Rights Committee. He testIfied that hIs personal phIlosophIcal posItion I IS that he opposed to restncted Job competItIOns but that he IS fully SupportIve of the OntarIO Pubhc ServIce Employment EqUIty Program. Dunng the time he has worked for the Ministry of CorrectIOns Mr Kmsella has receIved no cOl,l11selhng or dIscIphne for mappropnate conduct, but has been the recIpIent of a number of positIve performance appraisals and three letters of commendatIOn. Following_hIs first SIX months at Stratford, he has been regularly assIgned as the Actmg ShIft SupervIsor, whIch means that he IS completely responsible for the operatIon of the mstItutIOn and of the communIty programs dunng a partIcular ShIft. Mr Kmsella testIfied that he apphed for a transfer back to the Waterloo Detention Centre as soon as he quahfied. He explained that hIS workmg at the Stratford Jail requires commutmg tIme of one hour each way as opposed to the twenty minutes he commuted each way from his residence to the Waterloo DetentIon Centre. He continues to reside With hIs wife and chIld m KItchener Early m 1992, Mr Kinsella applied for the position of General Duty Officer, CorrectIOnal Officer 2, CorrectIOnal Officer 1, underfill, at the Waterloo DetentIOn Centre. He first became aware of the posting in January 1992. The vacancy arose when a full-tIme classIfied CorrectIOnal Officer 2, retIred on December 31, 1991 Pnor to the date of thIs reSIgnatIOn, Mr R. M. Millar, Supenntendent of the Waterloo DetentIon Centre, had submItted a,Request for Staffing Action to the Western RegIonal Office. He partIcularly requested ~at the competItIOn be "restncted to the unclassIfied staff of the Waterloo DetentIOn Centre." On January 9, 1992, the RegIonal Manager (Western), J CassIdy, approved the postmg, refused the restnctIOn to the Waterloo DetentIon Centre, and ordered that the area of search be the folloWing' Employment EqUIty Restricted - Female Open area of search Western and Central RegIons 2 . ,/ ~ .. On January 15, 1992, Mr Millar wrote the folloWing letter to Mr Kmsella. Upcoming Competition for Correctional Officer - Waterloo D.C. I have Just learned from our RegIonal Office that the upcomnig competitIOn fora correctIonal officer has been designated "Employment Equity" and restncted to female apphcants. ThIS actIon IS m keepmg With the Mimstry's pohcy to mcrease the ratIo of female officers WIthm the classIficatIOn. I know you have been studymg in preparatIOn for thIS competItIOn and It must be a dIsappointment for (you. However, try not to be too dIscouraged as other OpportunItIes Will develop In the meantime, keep up'the good work and thank you for your valuable contributIon to the smooth running of thIs facility Should you wIsh to discuss thIS matter With me, I am available. Many thanks, Yours truly - R.M. Millar, Supermtendent It was Mr Kmsella's understandmg that a SImIlar letter went to all the UnclassIfied CorrectIOnal Officers at the Wa!erloo DetentIOn Centre. NotIce of CompetItIOn CI-4004-92 was posted from January 24, 1992 to February 6, 1992 and specIfied the followmg: , / A.r.ea-of Search. ThIS competItIOn IS an Employment EqUIty ImtIatIve whIch IS permItted by ~ SectIon 13 1 [now 14 1] of the Human Rights Code. This competItIon IS restncted to quahfied classIfied and unclassIfied female employees of the Western and Central RegIons of the Mimstry of CorrectIOnal ServIces. 3 . I q. .. Qualified candIdates are mvited to submIt applIcatIOns not later than 4.30 p.m. on February 6, 1992 dIrected to CompetitIon CI-4004-92 Supenntendent Waterloo DetentIOn Centre Mr Kmsella submItted the folloWing letter With hIS resume on February 6, 1992 I Wish to apply for the position of CorrectIOnal Officer at the Waterloo DetentIOn \ Centre, competItIon # CI-4004-92 You have my permission to access my personnel file for the purposes of thIs competItIOn. I feel I have all the attributes nessessary [sic] to fulfill the role of a full-tIme officer I have enclosed a copy of my resume for your attentIon. Thankyou [SIC] for consIdenng thIS apphcatlOn. I look forward to the challenge of sIttmg for an equal OppOrtunIty intervIew ! The follOWing day he wrote to Mr Millar, hIs Supenntendent as follows Dear SIr, I Wish to bnng your attentIOn to the enclosed photocopy of an "Employment EqUIty Notice' taken from the OntarIo Pubhc ServIce's "JOB-MART" publIcatIOn, dated January 31, 1992. As you can see It is possible for me to apply for any positIOn, mcludmg those deSIgnated for employment equity FollOWing recIpt [sic] of your recent letter to all unclaSSIfied correctional officers at our facIhty regarding competItIon # CI -4004-92, and our pnvate dIscussIOn of the same Issue, I understood I could not apply for thIs competitIOn. It now appears I was elIgible to, therefore, I would appreCIate If you would consIder that applicatIOn along WIth any others whIch have been recIeved [sic] for consIderatIOn. I wOlild appreCIate an opportunIty to dISCUSS thIs Issue further With you at your convemence, Thankyou very much. 4 ) !) i: The notIce referred to was the followmg, which, ac~ording to the eVIdence, regularly appears m Job-Mart. (The actual ongmal of the notice submitted in eVIdence was taken from a Job-Mart Issue of approxImately three weeks pnor to the heanng.) Employment Equity Notice To support our employment eqUIty goals, a phrase encouragmg applicatIOns from members of one or more deSIgnated groups - abongmal peoples, francophones, persons WIth dIsabihties, raCIal mmontIes and women - may appear m ads for underrepresented occupatIons. ApplIcatIOns continue to be welcome from all mterested applIcants and selectIOn will be on qualIficatIOns reqUIred. It was the eVIdence ofMr Kmsella that he understood the follOWing excerpt from aJob advertIsement m Job Mart to be an approved wording for certam employment eqUIty competItIOns. In accordance With our employment eqUIty goals for thIs occupatIon, apphcatIOns are partIcularly encouraged from abongmal peoples, francophones, racial mInontIes and women. ( ( On February 17, 1992, Patnck Kinsella met with Supenntendent Millar who, Mr Kmsella testIfied, apologized that he was unable to consider hIm an apphcant, due to hIS gender, and that he had been Instructed to return his applIcatIOn. Mr Kinsella was gIven back hIS resume, the green form and hIS, coverIng letter He also testIfied that he had receIved no acknowledgement of hIs applicatIOn as he should have pursuant to a Human Resources, Mimstry DIrectIve. He dId - not dISCUSS the matter With Mr Millar at the tIme as it was hIS perceptIon that Mr Millar had had no mput mto the deCISIon and hebeheved that the Supenntendent had requested that the competItIOn be restncted to the Waterloo DetentIOn Centre to gIve UnclassIfied CorrectIOnal \ Officers there, an OppOrtunIty he felt they deserved. Mr Kinsella made It Clear In hIS testImony that Supenntendent Millar was approachable and that he communIcated InfOrmatIOn to hIm throughout In a respectful manner FolloWing thIs discussIOn, Mr Kinsella was, as he testIfied, "not satlsfied" He dId not feel that he had receIved a clear answer from anyone concernIng the appropriateness of the restnction and he was suffiCIently bothered and determmed that he "deCIded to research the issue." 5 I ---..------ -- ,ii- .~ The competition was held in February, 1992, and Mr Kmsella was not one of the candIdates. The Staff Requisition and Recruitment Summary - CSC302 for CompetItIOn CI- 4004-92 was submItted m eVIdence. It noted that the competItIOn was authorized by J CassIdy WIth the restrictIOn of "Employment EqUIty ImtIatIve - restrIcted to classIfied and unclassIfied female staff ofMCS m Western & Central regIOns" , WIth Mimstry/FacIhty postmg advertIsmg, ~ no french-language. The RecruItment Summary whIch mcluded the competitIOn process and results was authOrIzed by Doug Mackay, the Area Personnel AdmmIstrator (W). It showed that the followmg IndiVIduals made up the selectIOn panel. B McConnell Deputy SuperIntendent R. RankIne Assistant Supenntendent D Mackay Area Personnel Admimstrator (W) \ It also set out a . source and gender snapshot of the applIcants based. It presented the followmg pIcture: Number of applicants Internal External Total \ FemalelMale FemalelMale Applied 3 13 / 1 17 Met advertised criteria 3 10 / 0 13 Interviewed 3 3 Qualified (after interview) 1 1 Offer(s) accepted 1 1 ; In the result, the pOSItIOn was filled on February 25, 1992. Ms. MacInnis was notIfied by letter dated March 11, 1992 and the appointment was effective March 30, 1992. At about this time, Mr Kmsella contmued hIS personal enqUIry mto the vahdity of the restrIctIOn whIch had been Imposed on hIm and, as part of thIS, he contacted Monika Campbell, Manager of the Employment EqUIty Program for the Ministry of the SohcItor General & CorrectIonal ServIces. He asked her for information concernIng the Mimstry's Employment ) EqUIty polICIes and pOSItIve measures, and about the restrIctIOn of thIS competItIOn. Mr KInsella testIfied that she was unable to refer hIm to any government gUIdelIne, pohcyor program whIch 6 / ----- - ! ~ - ~, authonzed the restrIctIOn whIch had affected hIm but mstead cIted s. 14 [13] of the Ontario Human Rights Code [see page 27] as authonty for the establishment of posItive measures under employment eqUIty programs and for the concept of how these measures were to be developed ) and Implemented In the work place. Mr KInsella related to the Panel that he , was made to feel very uncomfortable dunng [his] enqUIrIes With her, almost to feel ashamed to ask questIOns concernIng the mInIStry polIcy, as It IS a hot potato , Issue. Mr Kinsella was not satIsfied With thIS response and further, he had receIved no documents WhICh mIght have shed lIght on the matter He testIfied that he then became more concerned that everythmg was not as It was supposed to be. lt was Mr KInsella's OpInIOn, based on hIS enquIrIes, that the Mimstry had no dIscretIOn or authonty to restrIct the competItIOn, and that the Human Resources Head Office of the MinIStry had no knowledge of the restnctIOn placed on the specIfic competItIon and that smce no one questIoned the restnctIOn, the result was the discnmmatIOn to WhICh he was subjected. He testIfied that he belIeved that Ms. Campbell alone, directed the restnctIOns, that she felt she had the authorIty to do so, and that she dId not recogmze the requirements of a plan and UnIon consultatIOn set out m the CollectIve Agreement and the Ontario Human Rights Code In purSUIt of further InfOrmatIOn, Mr Kmsella then went to the OntarIO Human Rights DIStrIct Office m Kitchener to request polICIes and gUIdelInes on pOSItIve measures. Here he was referred to s. 14 (5) [13 (5)]ofthe Ontario Human Rights Code, (See page 27) whIch states that the OntarIo Human Rights CommIssion has no authority over programs Implemented by the Crown, but that It does have authonty to review all others, mcludmg those of munICIpalItIes. Mr Kinsella testIfied that the Human Rights Office suggested that If he had concerns, he could dIrect them to the Employment Equity CommISSIon, thIs he did, directing numerous telephone calls to them durIng the sprIng of 1992. However, he found thIs a futIle exerCIse. Then Mr KInsella wrote to Grace-Edward Galabuzi, SpeCial Assistant to the Premier, and receIved the follOWing reply dated August 11, 1992 7 ~ \ ~ #. ~ . Dear Mr Kmsella. Thank you for your letter dated July 31, 1992 regardmg the Employment EqUIty Program m the Ontario PublIc ServIce (OPS) Unfortunately I dId not receIve the previous correspondence you referred to m your letter However, I do recall our conversatIon last spnng. The government IS committed to ehmmating barrIers to employment and promotIOn for women, vIsible minontIes, persons With dIsabilItIes and abongmals m the OPS I am forwardmg a copy ofyouf letter to Glenna Carr, Deputy Miruster, Management Board of Cabmet. I ,have requested .that she respond dIrectly to the questIOns raIsed m your letter Thank you for mqumng about the OPS Employment EqUIty Program. Yours smcerely, (SIgned) Grace-Edward GalabuzI SpecIal ASSIStant to the PremIer r cc.Glenna Carr, Deputy Minister Management Board of Cabmet In September 1992, he receIved the followmg correspondenc~ from Ms. Carr' Dear Mr Kmsella. I am respondmg to the questions posed m your letter dated July 31, 1992, to Grace-Edward GalabUZl, SpeCIal ASSIstant to the Premier Smce 1989, a number of competItIons m the OPS have been advertIsed each year under the auspIces of the Employment EqUIty InternshIp Program. These two programs have funded developmental and trainIng opportunItIes for deSIgnated group members mall mImstnes, m occupatIons where deSIgnated groups were under-represented. In the case of the Employment EqUIty Fund, opporturutIes have been restncted to deSIgnated group members. In the case of the InternshIp 8 --------- -- ~ , ." Program, qualified designated group members have receIved preference over non- desIgnated group applIcants. In each case, the restnctIOn or preference has been advertIsed explICItly F or your mformatIOn, I am attachmg matenal on the two programs. Apart from the~e programs, the approved approach to advertIsing competitlOns In occupatIOn~ where deSignated groups are under-represented has been the statement whIch appears m Job mart It encourages apphcatlOns from deSIgnated group members, but does not Imply or authonze-PLd'erence bemg gIVen to them I With respect to pohcy, the current SelectlOn Directive and GUldehne Issued by Management Board allow for employment eqUlty to be'a factor m screenm~ selectlOn decIsIons, where qualrficatIOns of candIdates are relatIVely equal It does not proVIde for restnctIon of competItIons for claSSIfied posItIon~ to > deSIgnated group members only Therefore, It would be mappropnate from the perspective of current polIcy for a mIniStry to indIcate to an OPS employee th~t she/he could not apply for an OPS competItIon for a claSSIfied posItlOn because of race, sex or other deSIgnated group status Management Board Secretariat IS In the process of developing pohci~or...1he OPS on pOSItive measures which are intended to reme.d.J'-dIscnmmatIon and dIsadvantage expenenc~(:LbS-desIgnated group members. RestrictIng competItIOns to deSIgnated group members IS one~_oi..posItive measure whIch is likely to he.Jn.cluded m the POhCle.5...- SectlOn 14 (formerly sectIOn 13) ofthe Ontano Human RIght~ Code provIde~ that such POSItIve measures are not conSIdered dIscTImIhatory under the Code; from a legal pomt of VIew, thIS takes precedence over OPS pohcy In addItIon, sectIon 11 (1) (b) of the draft Employment EqUIty Act (BIll 79) now before the proVInCIal legIslature would reqUIre employers to use pOSItIve measures for recruItment, I retentIOn and promotIOn of deSIgnated groups members. You have asked whether an mdivIdual has the nght to freedom from harassment for confidentIally askmg the questIOns m your letter There IS nothIng in law or pohcy WhICh prOVIdes that rIght, to the best of my knowledge. However, It would be reasonable for an employee to expect to be able to ask such questIons WIthOut harassment. You have also asked what responsibihty an employee has ifshe/he becomes aware of a mmIstry Improperly restrictmg a competItIOn. Employees have no speCIal responsibIhty m thIS area. MinIstry staffing practIces are subJect to audIt, and are revIewed m the context of employment eqUIty Employment Systems ReVIews. An employee who felt that she/he had lost an OppOrtunIty to be faIrly 9 ------- ------ ------ ,., ~ i consIdered as a candIdate In the competItIon could file a grIevance. I trust that the above InfOrmatIOn answers your questIons. Yours truly, , (SIgned for) Glenna Carr Enclosure \ [Emphasis added) ~ - Throughout the fall of 1992, Mr Kmsella contmued to be dIsturbed by what he perceIved as a dIscnmmatory practIce based on a mlSlnterpretatlOn of government dIrectIve and polIcy He was partIcularly offended as he conSIders hImself to be a strong supporter of "the removal of barriers from employment for all hIstoncally dIsadvantaged groups." Dunng thIS penod he spoke With Mr Bob Sherman Manager of the Workforce Planning and Employment EqUIty Branch of Management Board SecretarIat, who, accordIng to Mr Kinsella's testImony, IndICated that hIS branch had complete authonty for Employment EqUIty and therefore, for the handhng ofMr Kinsella's enqUIry FInally, m October, 1992, "at the suggestion of a senior bureaucrat", accordIng to the testImony of Mr Kinsella, he filed a gnevance In WhICh he stated that the Employer has VIolated the CollectIve Agreement and O.P S employment eqUIty polIcy by denying my Job applIcation for CompetItIOn # CI-4004-92. The gnevance was demed on October 19, 1992, at Step I and on December 18, 1992, at Step 2. The questIon of the restrIctIOn contmued to be unanswered for Mr Kinsella and almost a- -- year later, on November 13, 1993, he wrote to the PremIer, Bob Rae, settIng out hIS perspectIve WithOut In any way askIng the PremIer to Intervene In personal situatIon or hIs grIevance. Mr Kmsella receIved the follOWing reply dated December 2, 1993 10 ~ r l; I ~ i .; I Dear Pat Kmsella. I i Thank you for your letter abbut our government's employment eqUIty program and the recent advertIsement! for a lImIted ehgibilIty competItion. I I While thIS measure was intrdducedsolely to further the goals of employment equity, it IS clear that It has sbarked genuine and Widespread concern, both among i desIgnated groups and WithIn the populatIon at large. As a result, Bnan Charlton, fhaIr of Management Board of Cabmet, announced on November 15 that he IS suspendIng all advertIsements for any hmited ehgiblhty competItIon and that he Will reVIew the apphcation of thIS measure. I One measure cannot be allowed to endanger an entIre program. I appreciate your sharmg YO'IT VIews on this matter WIth me. Yours smcerely, '-/ (sIgned) Bob Rae In February, 1994, Mr Kinsella still dId not feel that he had a satIsfactory or concrete reply from I the senIor levels of government as to "whether or not Cabmet had approved employment eqUIty, I lImIted elIgibilIty programs for 1991-1992" He therefore wrote to Ms. Pat Cugey, SpeCIal ASSIstant to the Secretary of the Cal )met and Clerk of the ExecutIve COunCIl. bater that month I i DaVId Agnew, Secretary of the Cabinet and Clerk of the ExecutIVe CouncIl, replIed to Mr - Kmsella on the PremIer's behalf Dear Mr Kmsella. I am wrItmg In response to your faxed letter of February -}, 1994 addressed to Pat Curley I understand that you wante~ to have a response dIrectly frOlp. the PremIer However, the PremIer has asked me to respond on hIS behalf, and I WIll continue to do so t ~ In late 1990, CabInet approved an accelerated OPS employment eqUIty program. I ThIS mcluded mItIatIves m the followmg areas. pohcy development, research and I data, accountablhty, consultatIOn,trammg and communIcatIOns. t 11 I i I , I ,c '4' CabInet also approved In prIncIple the InclUSIOn of positive measures m the expanded employment eqUIty program whIch was then under development. However, it was recogmzed that pohcy work In thIs area would be needed before posItIve measure would be implemented, With the exception of the Employment Equity Fund and the Employment EqUIty InternshIp Program, WhICh were already in place. Details of these programs were gIVen to you by Glenna Carr In an attachment to her letter to you dated September 15, 1992. In December 1 991, Management Board of Cabmet approved the Employment Eqmty DirectIve wHich required mImstrIes to deSIgn and Implement posItlVe measures. ThIS DIrective was Issued m March 1992 However It dId not refer to lImIted ehgibihty competItIons, and It mdIcated that the POSItIve Measures DIrectIve and GUIdelme, which would form the basis for the implemeIJ.tatIOn of posItive measures, had not yet been Issued. Cabmet approved the POSItIve Measures Directive and the LimIted EltgibIhty CompetitIons DirectIve m July 1993, and the DIrectIves became effectIvejll August 1993. In December 1993 the use of the LImIted Ehgibihty CompetItIOns DIrectIve was suspended. Therefore, Cabmet dId not authorize limited ehgibility competItions until 1993... except for the Employment Eqmty Fund and Employment EqUtty InternshIp Program referred to abQYe.. Since-.1h1s-15-the case, there IS no "eVIdence" of a llJriIted ehgibIhty competltIOns program bemg in existence III 1991. For your mformation, I am attachIng, a number of documents from the MBS \ Human Resources DirectIves and Guidelines Manual. the Introduction to Employment Equity, and the Employment EqUIty DirectIve, the IntroductIOn to "- PosItive Measures, the POSItIve DirectIve, and the now suspended LImIted EhgibIhty competItIons DIrectIVe I am also attaching two further documents as background mformatIon. "The Ontano PublIc ServIce Employment EqUIty Program - A Strategy for ImplementatIOn" and "The OntarIo PublIc ServIce POSItIve Measures Program - Background InformatIOn" 12 - I ~ ) #~ I believe the above mformatIOn and the attachments provIde what you requested m your letter of February 1, 1994 to Ms. Curley l Yours sIncerely, (SIgned) J DavId Agnew [Emphasis added] ThIs constItuted the Union's eVIdence With respect to the metIts. The Employer. Monika Campbell - Manager of Employment Equity for the Ministry of the Solicitor General and Correctional Services Doug Mackay - Area Personnel Administrator, Western Region, Ministry of the Solicitor General and Correctional Services These two wItnesses testIfied With respect to the process 'and the authonty under WhICh they believed they had correctly used restncted competItIOns as an employment eqUIty measure. Monika Campbell had been Manager of the Employment EqUIty Program for the Mimstry of the SolICItor General & CorrectIOns smce 1984 and has been WIth the Mimstry since 1977 Doug Mackay had been the Area Personnel AdmInIstrator In the Western RegIOn, whIch Includes the Waterloo DetentIOn Centre smce May, 1989 He has been wIth the Ministry SInce 1971 and hIS mvolvement as a member of the SelectIOn Panel m the competItIOn was noted above Ms. Campbell explamed the programs for WhICh she IS responsible, and theIr hIstory She ~ stated that m endeavounng to have the workforce representatIve of the communIty, the government had Identified five deSIgnated groups [aborigInal peoples, francophones, persons With dIsabilItIes, raci~ minoritIes and women] and had identified under-represented occupatIOnal groups and set numencal goals, not quotas, m 1989 as well as measures and tImetables to achIeve , 13 \ J - I .~ these goal WIthIn the under-represented occupational groups. The establishment of the Employment EqUIty Fund enabled the Mimstries to create developmental OpportunItIes and an mternshIp program offered OpportunItIes for graduatIng students from the desIgnated groups. , There were also mentonng and career development programs as well as accelerated career OpportunItIes. As well, an mternal mcentIve fund eXIsted to encourage mmistrIes to create developmental opportunitIes for theIr own staff. Ms. Campbell explaIned that an Inter-mmistenal commIttee for the development of pOSItIve measures as a tool of employment equity was establIshed in 1989 and contmued untIl 1993 She stated that she sat on that committee for the first two years of its eXIstence. She also testIfied that pOSItIve measures were used WIthm the Ministry of the SohcItor General & CorrectIOnal ServIces from 1988 to 1991 and that the competitIOn bemg grIeved was one ofa number of competItIons to be restncted durmg that tIme. Accordmg to her, the authonty to do 'so came from the Ontario Human Rights Code, s. 14 [so 13] as adVIsed by Management Board. Ms. Campbell acknowledged that there was no government policy In place whIch permItted the Mimstry to hold restncted competItIOns. She went on to testify that at the tIme of the heanng, the Mimstry was no longer conductIng restncted competitIOns for employm~nt eqUIty and had not done so smce AprIl/May, 1992 when a dIrectIve was receIved from Management Board to cease restnctIng competitIOns for employment eqUIty purposes. It was her understandmg that negotIatIOns were takIng place centrally around ArtIcle 4.3.2 of the CollectIve Agreement (See page 22), and that all Mimstnes were asked not tb use restncted competItIOns until the matter was resolved. Ms. Campbell testIfied that thIS directlve had been complIed WIth. However, she pomted out that the Mimstry was stIll restnctmg competItIOns for partIcular needs. She explamed that thIs was done under the Ontario Human Rights Code, s. 24 (b) [so 23 (b)], (See page 24), Ms. Campbell testIfied that she understood that the Mimstry has had a pohcy on the aSSIgnment of male and female CorrectIOnal Officers SInce 1984 at WhICh tIme It was granted a five-year exemptIOn by the Human Rights ComimssIOn. She explamed that when a renewal of 14 ( I , ~ "- ~. / the exemptIOn'was applIed for m 1989, the Ministry was told a new exemptIOn was not \ necessary and that It could stIll use the eXIstmg code, and therefore the exemptIon was contmued. She went on to state that thIS polIcy on assignment does not mclude selectIOn and, to the best of her knowledge, no polIcy on selectIOn cnterIa exists to meet operatIonal needs. Once the goals and tImetables were set, they were, accordIng to Ms. Campbell, dIvIded regIOnally and sent to each RegIonal Personnel AdmImstrator who was asked, by Ms. Campbell, to look at the goals when 1'0stIng pOSItIOns. Following that, they would confer pnor, to applymg restrIctIOns m J speCIfic sItuatIons. Dunng cross-exammatIOn, Ms. Campbell agreed that . Management Board was m a pOSItIOn to duect all Human Resources matters at anytIme J . all MinIstnes are expected to follow all Management Board dIrectIves ap.d gUIdelInes . complIance With the dIrectIves and gUIdelmes IS partIcularly Important In a collective } bargaInIng context -. . all hmng practIces are to be consistent WIth Management Board dIrectIves and With the CollectIve Agreement At the request of Counsel for the UnIOn, Kevm WhItaker, Ms. Campbell revIewed the Human Resources Duectives and GUIdelInes on staffing, and acknowledged haVIng seen the dIrectIve, although she could not recall seeIng the first two pages (4 1 1 and 4 1.2), the Introduction and the settmg out of the Exceptions to the Competitive Process (See page 23) She dId however, acknowledge that the set of DIrectIves and GUIdelInes released m January 1991, would1have applIed to the Competition CI-4004-92. She also agreed that under DirectIve 4.2.5 - RESPONSIBILITIES, the original authonty flows from the CIVIl ServIce CommISSIOn and IS delegated to the Deputy Heads who In turn authonze the Ime MimstrIes to hue, also, that the delegatIOn would only be valid if It were conSIstent With the gUIdelInes. Ms. Campbell \ further testified that It was not the Human Resources SecretarIat which had pnmary -l responsibIlIty for the goals and tImetables, rather, these were developed by the speCIfic \ MinIstrIes and once estabhshed, 'they were then sent to Management Board Secretanat. 15 -'- ---- ,~ "" GuidelIne G 4.2.1 was exammed dunng thecross-exammatIOn of Ms. Campbell, in partIcular, the sectIOns on Seniority, and Employment Equity Goals, (See page 26) Ms. Campbell agreed that, accordmg to the gUIdelme, employment eqUIty consIderatIOns would only come mto play once It had been determmed that two candIdates were relatIvely equal and that the relative equalIty must be first determined. She accepted that If the Employer does not \ allow some person or groups of persons to put theIr qualIficatIOns before the selectIOn panel, that the Employer does not have the InfOrmatIOn to make the determmatIOn of relatIve equahty She also conceded that under DIrective 4.2.1 (See page 24), that It was not appropnate to screen out applIcants who meet the cntena Without reVIeWIng their qualIficatIOns. She acknowledged that \ Mr KInsella and other potential male applIcants, because they were told they were not qualIfied to compete, dId not have theIr qualifications assessed and that, in the end, the Mimstry had admmIstered the competitIon m a manner mconsIstent With the dIrective She claImed, however that the Mimstry was usmg the Ontario Human Rights Code and she was not willmg to aclq}owledge that the provIsIons of DirectIve 4.2.14 are inconsIstent With POSItIve measures recruItment programs, on the baSIS that the Ontario Human Rights Code was used mstead. She explaIned that ignonng the directive in favour of the Ontario Human Rights Code was done m order to try to ach~eve .thelr goal. She mdIcated that the gender restnctIOn was not used in all competitIOns. Ms. Campbell was referred to the letter of Glenna Carr, Deputy Mimster, Management Board of Cabmet, wrItten after seven months after the competItIOn, (See pages 8,9 and 10) m WhICh It IS stated that Ontano Public ServIce polIcy does not provIde for restnctIOn of competItIOns for clasSIfied positIons to deSIgnated group members. She acknowledged this, but pomted out that the letter also says that from a legal pomt ofview, section [i3]14 of the Ontario Human Rights Code takes precedence over the Ontario Public ServIce policy She explained that she sees herself governed by Ontano PublIc ServIce polIcy but has the authonty to use the~ Ontario Human Rights Code She conceded that she dId not, m her pOSItIon, have permissIOn to go beyond Ontario PublIc ServIce polIcy ( 16 r '- ,j In re-exammatIon, Ms. Campbell-explamed to the Panel, her understandmg of several terms used throughout the hearing. The dIfference between screening and posting: She defined postmg as the ImtIal part of the recruItment process in which selection cntena and qualIficatIOns are IdentIfied and stated that screemng took place folloWing the postmg part of the process and pnor to the mtervIew ElIgible. She was referred to DIrective D 4.2.14, (See page 26) and explamed that "elIgible" means that the applIcant meets the mImstry cntena and qualIfies In the cut set out m the postmg. DuectIve A 'dIrectIVe' IS a rule WhICh must be followed. GUIdelmes. A gUIdelIne IS a way of applymg the dlfeGtIves or an mterpretatIOn of the dIrectives. Ms. Campbell testIfied that the Mimstry dId not apply DtrectIve 4.2.14 WIth respect to Competition CI-4004-92 and that at the time she did not believe that she was vIolatmg a polIcy, nor dId she have the benefit of the mformatIOn found m the letters of Ms. Carr (See pages 8,9 and 10) and Mr Agnew (See pages 11, 12 and 13) There was, she stated, no clear dIrectIOn from Management Board WIth respect to the use of restncted competItIOns. \ Mr Mackay testIfied that he was mvolved m the postmg and fillmg of the pOSItIon m CompetItIOn CI-4004-92 He explamed that the "Request for Staffing ActIOn", was SIgned, as usual, by the RegIonal Manager who has the delegated authority to respond to the request. Mr Mackay was part of the consultatIve process. His role was between the Superintendent of the InstitutIOn, Personnel and the RegIOnal Manager, one he normally assumes mJob competItIOns. It was-Mr Mackay's explanatIon that the competItIOn In questIon was restricted to meet the employment eqUIty goals and tImetables of the Mimstry He stated as well, that there was an operatIOnal reason, and explamed that smce there are female Inmates at the Waterloo DetentIon 17 ~ ,I>, Centre, there was a need for female CorrectIonal Officers, partIcularly with respect to searches of female Inmates, and that a polIcy regardmg male and female correctIOnal officer aSSIgnment eXIsts to help meet thIS need. He testIfied that the Waterloo DetentIOn Centre had ItS quota of unclassIfied Corr~ctIOnal Officers and they were all male. (There were ten.) Mr Mackay was not able to provIde mformatIon regardmg any study or analysIs WhICh mIght have been camed out and which mIght have a IdentIfied a problem of under-representatIOn at the Waterloo DetentIOn Centre. In ~ Mackay's opImon, however, If there were eIther 8 or 10female CorrectIOnal Officers at the Waterloo DetentIOn Centre, there was a need to get more mto that mstItutIOn. He was not able to tell the Panel whether or not the goal of 22% had been reached at the Waterloo DetentIon Centre Mr Mackay explamed hIs understanding of the degree of dIscretIOn whIch was afforded by the Human Resources DirectIves and GUIdelme. He stated that there was an oblIgatIOn to act consIstently With DIrectIves and that GUIdelmes provIded how to do mformatIon, that gave --/ varymg degrees of dIscretIOn. For mstance, heexplamed, If a gUIdelme states that somethIng should be done, then he would mterpret that to mean that the Item IS one of the consIderatIOns WhICh he should use to make a determmatIOn, m conJunctIon With the Collective Agreement and the relevant legIslation. If a gUIdelme says that one may do somethIng, then dIscretIon IS allowed. On the other hand, If the gUIdelIne states that somethIng IS not to be done, or not appropriate then one IS oblIged to act accordmgly In cross-exammation, Mr Mackay was referred to DIrectIve 4.2.14 (See page 26) and -" acknowledged that the Employment EqUIty Goals sectIon states that these goals are to be ( consIdered m the screening process (as opposed to the earlIer posting part of the process). Mr Mackay testIfied that, other than gomg to the P,rinciples sectIon of the DIreCtIves, nothmg m the DIrectIves and GUIdelines permIts employment equity goals to be mserted at the postmg stage but noted that the ImplementatIOn of the DIrectwes and GUIdelines IS up to the mdIvIdual mInIStry He also acknowledged that the GUIdelme on Employment Equity Goals, states that 18 ------- \ ~ of) the mmIstry's employment equity goals should be consIdered m the screenmg decIsIon. /' He acknowledged that, m thIS context, It means that you cannot step over non-desIgnated groups. Mr Mackay stressed that the Ontario Human Rights Code gave the Mimstry the authority to post restricted competItIOns, but dIsagreed with Ms. Campbell's testImony that It was mconsIstent WIth GUIdelIne G 4.2.14 m the context whIch was bemg dealt With here. He dId ~ confirm, however, that the OntarIO PublIc ServIce polIcy had not changed between the date of the postmg (January 24, 1992) and the date of Ms. Carr's letter (September 15, 1992), although he dIsagreed m terms of the "tIme context." According to Mr Mackay, once the CollectIve Agreement came out, a dIrective was Issued from Management Board to stop restncted competItIons and get a central agreement With OPSEU I 1 J Mr Mackay Informed the Panel that during 1990/1991 several restrIcted competItIOns were carried 9ut m the Mimstry of the Sohcitor General and CorrectIOnal ServIces as well as m other Mimstnes but that the practIce was dIscontmued. He testified that CompetItIOn CI-4004-92 was the last because of the nnplementatIOn of the new CollectIve Agreement. He explamed that the procedure m place at the tIme of the heanng was that, upon receIpt of a Request for Staffing ActIon at the RegIOnal Office, an Opportunity Bulletin IS drafted and sent to Management Board Secretanat along With a requlSltIon, where It IS cleared for surplus, and If approved, gIven a clearance number, and returned to the RegIonal Office, at whIch time It can be posted m the 'J appropnate workplaces. Mr Mackay explamed that he was responsible for running the competItIOn process and completmg the post-competItIOn procedures, 3.FI.d that he had been mvolved m the declSlon to restrIct the postmg to females CorrectIOnal Officers. He testified that the geographICal and gender restrIctions were placed on the competItion for employment equity reasons but that, before domg so, all optIOns were conSIdered. He explained the process whIch IS set out m the 1 Staff RequlSltIOn and Recruitment Summary He added that 13 candidates were too many to 19 ) ,i; ~ mtervIew for a- smgle posItIOn. In the end, three were deemed to meet the qualIficatIOns and experIence for the posItIOn, as well as the senionty Mr Mackay testIfied that It was hIS understandmg that the authorIty for restncted competItIons came from s 14 [13] of the Ontario Human Rights Code and that there was a polIcy of Management Board, as well as the MinIstry's a polIcy, With Its goals and tImetables for employment for desIgnated groups. He was referred to DIrectIve 4.2., mdIcated hIs familIanty With It, and testIfied that there was nothing m thIs DIrectIVe precludmg the Ministry from applymg restrictIOns and CIted the pnncIple that The area of search and advertlSlng methods chosen shall contribute to the effectIveness of the staffing process and to the goals of employment eqUIty (See page 24). He saw thIspnnciple as a reinforcement of the staffing process and a means of meetmg the goals, at that time the partIcular goals and tImetables of employment eqUIty In cross-examinatIOn, Mr Mackay was asked why, gIVen that the indIvIdual occupymg the posItIon to be filled was a male CorrectIOnal Officer, could a male not have occupIed that position and earned out the duties. He explamed that, although he was not familIar With the \ staffing comple)llent at the Waterloo Detention Centre at that partIcular time, he surmIsed that thIS was an opportunity for the Employer to meet operatIonal reqUIrements, smce they had found It necessary on occaSIOn to call m a nurse to carry out correctIOnal officer duties when a female ) CorrectIonal Officer was reqUIred. He agreed that Supermtendent Millar dId not see ha'Ymga female CorrectIOnal Officer as a pnority or a reqUIrement at that tIme but thought he was probably choosmg between needs. He acknowledged that there was no need for another female CorrectIOnal Officer at the Waterloo DetentIon Centre m February, 1992. Mi" Mackay was asked by Counsel for the Umon If there was a pOSItIve measures program m 1992 He recalled that the Mimstry had receIved goals and timetables and that there were minIStry percentage goals for the deSIgnated groups, and a target date to bring up the 20 -----~- \ ~ '" levels. Assessment was part of thIS process. It was Mr Mackay's unde~standmg that It was a dIrective for the Mimstry to meet the targets and they would then use the Ontario Human Rights Code and-Employment Equity to meet the goals. He stated that It was hIS understandIng that restnctIOn of competItIOns was one of a wide range of pOSItive measures whIch include as well outreach, advertising In speCIfic areas, internshIp and developmental assIgnments. He testified that all of these were used In the Western RegIOn. The above constitutes the Employer's eVIdence on the merIts. RELEVANT ARTICLES, LEGISLATION, DIRECTIVES, AND GUIDELINES Collective Agreement The excerpts below are taken from the 1992/1993 CollectIve Agreement (green)' and changes from the preVIOUS Agreement (blue) are underlmed. i Article 86 sets out the term of the green CollectIve Agreement which IS currently muse ARTICLE 86 - TERM OF AGREEMENT 861 ThIS Agreement covers the perIod from January 1, 1992 untIl December 31, 1993 The effectIve date of any changes to the terms of this Agreement from the preVIOUS Agreement, unless otherWIse mdIcated, shall be February 3, 1992. This Agreement shall contInue automatIcally thereafter for annual penods of one (1) year each unless eIther party notIfies the other In Wfltmg that It Wishes to amend thIs Agreement, In accordance with SectIOn 22 of The ) ) Crown Employees CollectIve BargamIng Act, ReVIsed Statues on Ontano, 1980, Chapter 108, as revIsed. SIgned at Toronto thIS 5th day of March, 1992 ARTICLE A - NO DISCRIMINATI0NlEMPLOYMENT EQUITY A.l 1 There shall be no dISCrIminatIOn practIsed by reason of race, ancestry, place of ongm, colour, ethnIC ongm, CItIzenshIp, creed, sex, sexual onentatIOn, age, marital status, famIly status, or ) handIcap, as defined In sectIOn [9(1)]10 (1) ofthe Ontario Human Rights Code (OHRC) 21 if ~ A.l.2 There ~hall be no dIscnm1OatlOn or hara~~ment practI~ed by rea~on "- of an employee's member~hip or actIvity in the UnIon. A.2 It IS recogmzed that m accordance With sectIOn [13] 14 of the OHRC, the Employer's employment eqUIty program shall not be consIdered a contraventIOn of this artIcle. ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW POSITIONS 4.3 1 In fillIng a vacancy, the Employer shall gIve pnmary consIderatIOn to qualIficatIOns and abIlIty to perform the requIred dutIes. Where qualIfications and abIlIty are relatIvely equal, senIonty shall be [a consIderation] the decid10g factor. 4.3.2 Notwtthstand1Og ~ubsectlOn 4 3.1, the Umon and the Employer may agree that employment eqmty sha1lbe-1Ilade the ovemdmg con~lderatIon. S~ch agreements Will be-IDade 10 advance ofJ.oh post1Ogs and may be bas.ed on 10dIVIdual pO~ltlOn~, groups of pOSItIons, classIficatlOns or other groupings of Jobs as approprIate. 4.3.3 Agreement~ under subsectIOn 4.3.2 Will be based on an analysIs of workforce data and employment systems indicat10g that a deSIgnated groupis or group~ are under represented 4 .3 4 It is recognized that m accordance WIth sectIon 14 of the Ontano Human Rights Code, the Employer's employment eqUIty program shall not be consIdered a contraventIon of thIs artIcle. (b) thediscnmmatIOn m employment IS for reasons of age, sex, record of offences or mantal status If the age, sex, record of offences or mantal status of the applIcant is a reasonable and bona fide qualIficatIOn because of the nature of the employment; (c) an IndIVIdual person refuses to employ another for reasons of any prohibIted ground of dIscnmmatIOn m sectIOn 5, where the pnmary duty of the employment is attendmg to the medIcal or personal needs of the person or of an ill child or an aged, mfirm or III spouse or other relatIve of the person, or (d) an employer grants or withholds employment or advancement in employment to a person who IS the spouse, chIld or parent of the employer or an employee. 1981, c. 53, s. 23 22 ~ ;:.i 44 AA applIcant who IS InvIted to attend an intervIew wIthm the civil servIce shall be granted tIme off With no loss of credits to attend the mtervIew, provIded that the tIme off does not unduly mterfere With operatmg requirements. 4.5 Relocation expenses shall be paId m accordance with the provisIOns of the Employer's policy 461 With the agreement of the UnIon, the employee and the Employer, an employee may be assIgned to a vacancy where' (a) the vacant posItIon is IdentIcal to the posItIon occupIed by the employee, and (b) the vacant posItIOn IS m the same mInIStry as the posItIon I occupIed by the employee, and I And the provISIons of sections 41,4.2,4.3,44 and 4.5 shall not I apply 46.2 The assIgnment of an employee to a vacancy In accordance With ArtIcles 5, 24, 30, 42, 50 and 51 shall have prIonty ov~r an assignment under sectIOn 4 6 1 47 Where the dutIes of a posItIon are modified to accommodate an employee With a dIsabilIty, the posItIOn shall not be conSIdered a vacancy for the purposes of thIS artIcle. * Underlmed sectIOns were Introduced in the green CollectIve Agreement (January 1, i 1992 to December 31, 1993) and retroactIve to February 3, 1992. HUMAN RESOURCES DIRECTIVES AND GUIDELINES JANUARY 1991 INTRODUCTION! (4 1 1) All staffing decIsIOns In the OntarIo PublIc ServIce are based on the follOWing pnncIples. SelectIOn IS based on ment. Staffing IS managed through a planned reCrUItment process to create a workforce 23 - - - " fl.' '" whIch delIvers government programs and services effectIvely Staffing m the Ontario PublIc ServIce strIves to achIeve a workforce WhICh, at all occupatIOnal levels, IS representatIve of'the populatIon It serves. Staffing processes and procedures are free of overt and systemIc barners. Staffing IS conducted In accordance With the OntarIO Human RIghts Code, the CollectIVe Agreement and other relevant legIslatIOn. OBJECTIVE (4.2.1) To ensure a consIstent and eqUItable approach to the assessment and selectIOn of candIdates through a competItIve process. APPLICATION AND SCOPE ThIs dIrectrve applIes to all mimstnes and Schedule 1 agencIes hInng classified staff under the authonty of the Public Service Act, except the SenIor Management Group and Deputy Mimsters' Compensation Plan, PRINCIPLES (DIrectIve 4.2.1) Fairness and commItment to employment eqUIty are ~damental to the selectIon process m the Ontano PublIc ServIce. \ The area of search and advertismg methods chosen shall contribute to the effectIveness of the staffing process and to the goals of employment eqUIty AdvertIsmg m external medIa andjob mart shall reflect the government's commItment to cost effectIveness and profeSSIOnal advertISIng ~tandards. CandIdates are assessed usmg a variety of rating methods agaInst reasonable and bona fide cntena whIch are free from unnecessary credentIalism. 24 .' 9 RESPONSIBILITIES (DIrectIve 4.2.5) -- Civil Service Commissi_on The CIvIl ServIce CommISSIon is responsible for DelegatIng the authonty tOI recruIt staff for t~e cIvil servIce to deputy heads, \ IdentifyIng those mmIstrIeS where such delegated authonty shall not apply' and those classes/posItIOns where such delegated authonty shall not apply Human Resources Secretariat The Human Resources Secretanat IS responsible for provIdIng adVIce and aSSIstance on the selectIOn process, l admImstenng the corporate surplus program, developmg corporate staffing and employment equity goals and obJectIves, \ managIng the Ontario government's recruitment advertISIng program, establIshmg standards wh~re reqUIred, such as French language proficiency Deputy Heads Deputy Heads are responsible for ensurmg that the pnncIples and mandatory reqUIrements contamed m thIS dIrectIve are adhered to withIn the mmIstry; ensurmg that the collectIOn, use, disclosure and retentIon of personal mformatIOn used In documentation for a competItIOn IS conSIstent With the Freedom of Information and Privacy Act;, the IntegrIty of the s~lection process. Ministries MinIstrIes are responsible for 25 ------------- .:-:, ~ establIshmg a recruItment process m accordance With corporate polIcIes, establIshIng selectIOn cntena and physIcal demands analysIs based on the reqUIrements of the pOSItIon, ensunng that all selectIOn board members know their responsibIlIties whIch mclude conductmg selectIOn mtervIews, ratIng and rankIng candIdates, assessIng reference check mformatIon and makmg a formal wntten offer to the successful candIdate, ensunng that when there IS no consensus, the manager of the pOSItIOn beIng staffed IS responsible for decIdmg on the successful candidate and documentIng the reasons for the deCISIon, I documentIng all selectIOn actIvItIes. - SCREENING (GUIdelme 4.2.13/14) Seniority Where two or more eligible applIcants for a bargaInIng unIt vacancy m the ctassIfied servIce appear to have relatIvely equal q\lahficatIOns and abIlIty, length of contInUOUS servIce shall be a conSIderatIOn. Employment Equity Goals Where two or more eligible apphcants appear to have relatively equal qualificatIOns and abilIty, the mImstry's employment eqUIty goals should be considered In the screenmgdecIsIon. - It may be deSIrable to Increase the total number of candIdates IiltervIewed as a way of consIdenng more deSIgnated group members. When domg thIS, It IS not appropnate to IntervIew designated group members while passmg over non- deSIgnated group members who more fully meet the screenmg CrItena. In addItIon, no candIdates, whether members of a deSIgnated group or not, should be screened If they do not meet the mImmum qualIficatIons for the pOSItIOn (unless an underfill appomtment IS bemg conSIdered) 26 r!) ONTARIO HUMAN RIGHTS CODE [Excerpts are from R.S 0 1990, c. H.19, last amended 1994, WIth earlIer numbenng, If dIfferent, m parentheses and changes underlined.] 5. (1) [4 (1)] Employment.--Every person has a rIght to equal treatment With respect to employment WIthout dISCnmInatIOn ,because of race, ancestry, place of ongIn, colour, ethnIc origIn, cItIzenshIp, creed, sex, sexual orIentatIOn, age, record. of offences, mantal status, famIly status or handicap 14. (1) [13 (1)] Special programs.-- A nght under Part I IS not mfrInged by the ImplementatIOn of a specIal program deSIgned to relIeve hardshIp or economIC dIsadvantage o~ to assIst dIsadvantaged .persons or groups to achIeve or attempt to achieve equal opportunity or that IS likely to contribute to the elImmatIOn of the mfrIngement of rIghts under Part 1. (2) Review by the Commission.-- The CommIssIon may, (a) upon Its own mItIatIve (b) upon applicatIOn by a person seeking to Implement a special program under the protectIOn of subsectIOn (1), or (c) upon complamt m resp-ect of whIch the protectIOn of subsection (1) IS claimed, I mquire mto the speCIal program and, m -the dIscretIOn of the ComnllsslOn, may by order declare, (d) that the specIal program, as defined m the order does not satisfy the reqUIrements of subsectIon (1) or (e) that the specIal program as 4efined m the order, With such modIficatIOns, if any, as the CommIssIOn ( consIders adVIsable, satIsfies the requIrements of subsectIon (1) ( (3) A person aggneved by the making of an order under subsection (2) may request the CommIssIOn to reconSIder its order and sectIOn 36, With necessary modIficatIOns applIes. (4) SubsectIOn (1) does not apply to a speCIal program where an order IS made under clause (2) (d) or where an order IS made under clause (2) (e) With 27 J ( I "" ~ modIficatIOns of the specIal program that are not implemented. (5) SubsectIOn (2) does not apply to a specIal program Implemented by the Crown or an agency of the Crown. 198:1, c. 53, s. 13 24 (1) [23.;.(1)] Special employment.-- The rIght under section 5 [4] to equal treatment With respect to employment IS not mfrInged where, (a) a relIgIOUS, philanthropIc, educatIOnal, fraternal or socIal Ii1stItutIOn or organIzatIon that IS prImarIly engaged m servIng the mterests of persons IdentIfied by theIr race, ancestry, place of OrIgm, colour, ethnIC ongIn, creed, sex, age~ marItal status or handIcap employs only, or gives preference m employment to, persons SImilarly Identified If the qualIficatIOn is a reasonable and bona fide qualIfication because of the nature of the employment. (b) the dIscnmmatIOn m employment IS for reasons of age, sex, record of offences or mantal status if the age, sex, record of offences or marItal status of the applIcant is a reasonaole and bona fide qualIficatIOn because of the nature of the employment; ARGUMENT The Umon's pOSItIon presented by Kevm WhItaker, Counsel for the Umon, IS that the CollectIve Agreement dated January 1, 1992 to December 31, 1993 (green) app~Ies and In precludmg Mr Kinsella from CompetitIon CI-4004-92 the Employer has VIOlated ArtIcles A and 4 of thIS CollectIve Agreement (See pages 21, 22, and 23) Mr WhItaker pOInted out that the Gnevor had submItted hIS applIcatIOn on February 6, 1992, and that the determInation was made when the new language was in force. Further, he stated, the Employer had not finalIzed the declSlon or commUnIcated It to the Incumbent until after March 5, 1992, the date of the SIgnIng ofthe green CollectIve Agreement. Counsel for he Union drew the Board's attention to the fact that CollectIve Agreements pnor to thIS one were silent as to procedures around employment equity In ArtIcle 4.3.2/4.3.3/4.3 4, the partIes deVIsed a scheme WhICh allows for the 28 ) ej. ImplementatIOn of employment eqUIty programs. In order for employment eqUIty to be the overrIdmg consIderatIOn three factors must be present: . an agreement between the Employer and the Umon . the agreement must be made m advance of job postmgs I . the agreement Will be based on an analysis of workforce data and employment systems whIch mdIcated that a desIgnated group or groups are under represented. Under thIS artIcle, Mr WhItaker submItted, when determimng factors have been met, then senIonty (ArtIcle 4.3.2 at page 22) whIch IS histoncally of central concern to the UnIon, IS not the overrIdmg consIderatIOn and thIs tIes m With ArtIcle A 2 (See page 22), and IS consIstent WIth the Ontario Human Rights Code He emphasized the reqUIrement of polIcy work and program desIgn based on workforce data, in the Collective Agreement and theIr contemplatIOn m the Ontario Human Rights Code OPSElJ and Management Board of CabInet have agreed, Mr WhItaker submItted, to a scheme mvolvmg special measures, one WhICh is consIstent With both the CollectIve Agreement, the Ontario Human Rights Code and the correspondence from the PremIer (See page II) The Employer IS, he mamtamed, Management Board of CabInet acting on behalf of the .MinistrIes, \ and not the Mimstry of the SolIcItor General and CorrectIOnal ServIces actmg on behalf of Management Board of CabInet. It IS the Union: s posItIon that the Mimstry of CorrectIOnal ServIces (as It then was) acted contrary to the agreed-upon arrangement and in domg so has breached ItS oblIgatIOn tu;lder ArtIcles A and 4 and ItS contraventIOn of the negotIated agreement between the parties, renders the CollectIve Agreement meanmgless. In consIdenng the competItIon m the context of the Waterloo Detention Centre, Counsel for the UnIon submitted that the Superintendent was the best person to know the operatIonal needs of that InstItutIOn and that ifhe had been of the OpU:lIOn that a female CorrectIonal Officer ( was reqUIred, he would have asked for that. Further, Mr WhItaker made the pomt that the positIon being filled was vacant due to the retIrement of a male CorrectIOnal G>fficer, therefore It 29 ,..1.:.. ~ " can be concluded that the operatIonal needs would have been met had the posItIOn been filled by "- a man. Mr WhItaker argued In the alternative that If the Board should find that the earlIer Collective Agreementwere In force, that, notWIthstandmg the absence of ArtIcle 4 (See-page 22), that the Employer's practIce of gender restnction was mconsIstent with Article A (See pages 21 and 22) of the CollectIve Agreement, as It then was, and it could not be saId that the Employer's employment eqUIty program met the requirements of SectIOn 14 [13] of the Ontario Human Rights Code(See pages 27 and 28). The Employer Mike Mously, for the Employer, submItted that the Issue of posItive measures IS both controversIal and uncomfortable and thIS case comcIdes With the tIme durmg whIch the Government was dealmg With that. It IS common knowledge, he submItted, that the Issue has been the subject of political debate and critiCIsm. In the mstant case, we are dealmg WIth a claIm of reverse dIscnmmation In a sItuation where the competition was posted to deal With a dIsadvantaged female group. The Employer VIews thIs as SImIlarly supported by ArtIcle A of the CollectIve Agreement (See pages 21 and 22). It IS, however, Important, he mamtaIned to look at the Employer's deCISIon at the tIme It was made That deCISIOn must be weIghed not m lIght of the recent polICIes, nor m regard to recent changes m polIcy or pOSItIOn but m the context of the legIslahon, Collective Agreement and polICIes in place at the tIme. It IS the Employer's position, Mr Mously stated, that the postmg of the pOSItIOn preceded thecommg into effect of the green CollectIve Agreement, and he referred the Board to ArtIcle 86 (See page 21) It IS hIS contentIOn that the preVIOUS Collective Agreement (January I, 1989 to December 31, 1991, the blue agreement) applIes and that ArtIcle 4.3.2/4.3.3/4.34, 46 1, \ 46.2, and 47 of the subsequent Agreement (See pages 22 and 23) dId not comemto effect untIl February 3, 1992, the effectIve date of the January 1, 1992 to December 31,1993 (green) 30 \ ~' Agreement. He belIeves that thIs was one of the last postmgs restncted on grounds of employment eqUIty The Union, Mr Mously argued, has concluded that the Employer should have antIcIpated the changes In the Collective Agreement or $hould have undone what was started under the prevIOus <:ollectIve Agreement. IIn thIs Instance, the posting and the fiUmg of I the positIOn straddle the perIod between the two Collective Agreements. However, the actual restnctmg of CompetItIOn CI -4004-92 had been completed pnor to February 1992 and pnor to the sIgnmg of the green CollectIve Agreement and It IS not unreasonable for the Employer to carry out the competItion gIven that It had no mdIcatIOn that the new CollectIve Agreement reqUIred the procedure set out in ArtIcle 4.3 1/4.3.2/4.3.3/4.3 4 (See page 22) Mr Mously made the pomt that if the Panel determines that the blue Collective Agreement IS In force, then Mr Kinsella as an unclassified employee, had no right to gneve, a Job competItIon, under the green Collective Agreement, thIS nght was avaIlable to hIm only If JunsdIctIOn could be found on the grounds of arbitrarmess, unreasonableness or lack of bona \\ fides and, Mr Mously submits none of these IS present m the mstant SItuatIon. The Issue, according to Mr Mously, is whether or not the Employer had the authorIty In January 1992, to restrIct the competItIOn to females only The Employer acted In the belIef that the Ontario Human Rights Code and the CollectIve Agreement permitted It to apply restrIcted I competItIons as part of its employment eqUIty program, gIven that ItS language permIts specIal ,- programs. LimIted elIgibilIty, Mr Mously submItted, has been Identified as one form of speCIal program and SectIon 14 states that In such a case, no nght m mfrmged or nor does the program t constItute dISCrImmatIOn. Further, he argued, the legislation, in this case, the Ontario Human Rights Code, takes precedence over Ontano Ptlbhc Service polIcy and It would not be J appropnate for the Employer to say that If could not c;omply WIth the Ontario Human Rights [ \ Code because It dId not have an establIshed polIcy The Employer had had a practIce for some time where m SItuatIOns In whIch It b~lIeved that It had reasonable grounds, and for bona fide operatIOnal reasons, It had restncted 31 - .....,- ~ competitIOns. The eVIdence of Ms. Campbell confirms that Management Board was supportIve of the use of pOSItIve measures and that she had had no IndIcatIOn from them that the apphcatIOn of these measures was mappropnate. Instead, she was referred to the Ontario Human Rights Code, and It is reasonable, In that case,. for~e Mimstry to assurtle that SInce clearance was receIved for the posting, that Its terms were approved by Management Board, otherWIse, the result would have been no clearance. The Employer was not Waiting for the Implementation of, the formal pohcy'to apply the Ontario Human Rights Code. At the tIme, Ms. Campbell dId ~ot beheve that she was actmg In a manner mconsIstent With pohcy It IS the MimstrIes, he mamtaIned that develop theIr own recruItment process and It IS expected of them that they will make determmatIOns and set pnontIes. HavIng been gIven thIS responsibIlIty for declSlon makmg, the Mimstry then take responsibIlIty for the decisIOns made wIthI,n It. He mamtamed that the authonty for the Employer's restrIctIOn comes from the Ontario Human Rights Code and IS three-fold. . The Identification of specIal programmes and their IdentIficatIOn as a means of reachmg employment eqUIty; . the practIce of the Employer of carrymg out specIal programmes and the absence of response from the Umon, . The eXIstence of the restrIctive practIce In regard to competItIOns, and the SIlence of the Umon m thIs regard. On March 5, 1992, the newly sIg~ed prOVISIOns of the Collective Agreement meant that a protocol was establIshed and the previous practIce ceased. However, Mr Mously, argued that ArtIcle A.2of the earlIer blue CollectIve Agreement antICIpates that measures such as the one used by the Employer would be taken and thIs IS borne out by the partIes' adoptIOn of the protocol m the green subsequent CollectIve Agreement In ArtIcles A.2 and 4.3.2/4.3 3/4/3/4 It IS the Employer's pOSItion that Without explIcit mstructIOn to use or not to use POSItIve measures that It was rIght In gomg back to the legIslatIOn, where there was still a reqUIrement. Mr Mously demed that the Employer had failed to carry out any analysis and noted that 32 .l {fJ \ goals and tImetables With percent~ge targets In occupatIOnal goals, had been arrived at In advance of the competirIOn and that there was a process and measurable means to determme need, and these were provIded to Management on a regular basIS. There was, he argued, no formal reqUIrement for workforce data analysIs untIl March, 1992. 0 Mr Mously addressed the Issue of the letters presented In eVIdence by the Gnevor and noted that they were, as one would expe~t, favourable to hIs positIon. They were also wrItten in hmdsIght and followed the drama of the limIted competItIOns, and the polIcy at the tIme of the letters could mdeed have been quite dIfferent from that which was in place at the tIme of the competItIOn. . The Employer had receIved correspondence from government OffiCIalS indIcatmg that the SItuatIOn was beIng dIscussed, but had receIved no formal notIce regardmg changes or notIce to prohibIt the practic~. It is the Employer's posItion, Mr Mously submItte4, that the authonty was there, the deCISIon was made on sold grounds and in good faIth and the gnevance should be dIsmIssed. DECISION The Issue of whether or not the use of LimIted EhgibIhty CompetItIons IS deSIrable or approprIate IS not bemg dealt with m thIs declSlon, nor are the POlItICS surroundIng It. The questIons the Panel must answer ate whether or not the Mimstry of Corrections, as It was m the first quarter of 1992, had the proper authonty to restnct CompetItion CI - 4004- 92 to women at the posting stage, thereby preventmg the Gnevor from havmg hIS applIcatIOn receIved and --consIdered, and whether or not thIs gender restriction in any way violated the Collective Agreement. The Panel has taken as ItS startmg pomt that If the Employer, In thIs case, the Mimstry of the Sohcitor General and CorrectIOnal ServIces, IS implementmg a program or part of a program, the Mimstry must have the authorIty to do so,. whether that authonty IS gIVen for a partIcular program or part of a program, or whether the authorIty IS delegated to the Mimstry 11'1 the broader , 33 ." t sense. It cannot sImply put a program mto effect Wlthoutthe requisIte authorIty, nor can It Implement a program in contravention of the CollectIve Agreement. The restrIctIOn being apphed to CompetItion CI-4004-92 was the last of a number of SImIlarly restncted competItIons within the Mimstry WhICh restncted the competItIOn to apphcants from one of the five desIgnated groups (aborIgInal peoples, francophones, persons With dIsabIhtIes, raCIal mmontIes and women), namely women. It IS necessary at the outset to determme WhIch documents were m effect In the first quarter of 1992, the tIme at whIch the competItIOn was posted, held and :finalized. .{ Collective Agreement The Employer takes the pOSItIOn that the earher blue CollectIve Agreement applIes, for the folloWing reasons. the competItIOn postmg was January 24, 1992, the subsequent green Agreement was not SIgned until March 5, 1992 and the changes were not effectIve retroactIvely, until February 3, 1992. The UnIOn takes the pOSItIon that the later green CollectIve Agreement applIes on the basIS that It was SIgned before the competItion was complete, and the Incumbent notIfied of her success. The ,Panel has conSIdered the arguments of both partIes and has taken the followmg approach WhICh conSIders the questIon of tImIng, not from the pOInt of VIew of the competItIOn, but from the point of VIew of the alleged dIscnmmatIOn. The gnevance was filed under the later, green CollectIve Agreement, on October 13, 1992 but m the Panel's OpInIOn, the date offilmg IS not determmatIve of whIch CollectIve Agreement applIes rather, It IS, the tImIng of the gneved mCIdent. The earher blue CollectIve Agreement was m force untIl March 5, 1992, the date of the SIgning of the subsequent, green CollectIve Agreement. In those matters ariSIng after March 5, 1992, whIch are affected by the changes to the CollectIve Agreement, those changes would be 34 " -' 4} appled retroactIvely to February 3, 1992, m accordance With ArtIcle 86 ((See page 21) For the retroactIvity to apply m the case of Mr Kinsella, the dIscrimmatIOn must have occurred after March 5, 1992. The alleged discrimmation might be said to have taken place from January 15, 1992 at the tIme that Mr KInsella receIved the letter from Supenntendent Millar statmg that the competItIOn ( was to be restncted, or from January 24, 1992, at the tIme of the postIng, or from February 6, 1992, at the tIme Mr Kinsella submitted hIS applIcatIOn to Mr Millar, or, finally, from February 17, 1992, at the tIme Mr Millar returned Mr Kinsella's applIcatIOn. It IS the Panel's findIng, that the alleged dISCnmInatIon would have begun on January 15, 1992 at the tIme the letter was sent to Mr KInsella mformIng hIm of the restnctIOn, and would have ended at the pomt that the pOSItIon was filled, on February 25, 1992, as opposed to March 11, 1992 when the successful candIdate was notIfied. (The Panel recognIzes that m a case of discnmmatIOn, while the actual dIscnmInatory actIOns may cease, that residual effects of the dISCnmInatIOn may contmue for some tIme.) Therefore, it IS the determmatIOn of the Panel that the dISCrImmatIOn occurred under the blue Collect~ve Agreement. The fact that it occurred, in part, between February 3rd and February 25th, does not bnng It withm the retroactIvity penod because It dId not come Into eXIstence after March 5, 1992, the date of the sigmng of the green CollectIve Agreement, and the resultmg establIshment of the retroactIvIty penod. Humap. Resources Directives and Guidelines The Umon mamtamed, and the Employer acknowledged, that the Human Resources and DirectIves and GUIdelines January 1991 were in effect during the first 'quarter of 1991 The 1 DIrectIves are mandatory and non-dIscretIOnary, while the GUIdelInes frequenfIy permIt both chOIce and dIscretIOn. The Panel confirms that the January 1991 DIrectIves and GUIdelInes were m effect at the tIme of the CompetItIOn CI-4004-92 and makes the further findmg that thIs document contaIned no authonty for restnctmg CompetitIOn CI-4004-92 or any other Job competItIOn to women. It does however, contaIn authorIty for defimng the area of search on a 35 .. .~\ ~ geographIcally restricted basIS. The Employment EqUIty GUIdehnes Issued In March, 1992 would not have applIed to the current situatIOn, gIven the date of the Issue and the Board's findmg that ArtIcle 4.3 1/4.3.2/433/434 does not apply Further, the POSItIve Measures " IntroductIOn issued as a Human Resources DIrectives & GUIdelInes In August 1993, and the LImIted EhgibilIty CompetItIOns DIrectIve Issued m August 1993, and suspended m December 1993, have no effect on CompetItion CI-4004-92. Ontario Human Rights Code WhIle there have been amendments to the Ontario Human Rights Code smce 1990, none of these was made between 1990 and the first quarter of 1991 Further, the relevant sections dId not change In any substantIve way between 1990 and 1994 SectIOn 5(1) [4(1)] of the Ontario Human Rights Code sets out Mr Kmsella's nght to "equal treatment WIth respect to employment Without dISCrImInatIOn because of .sex" (See page 27) SectIOn 14 (1) [13(1)] ( permIts an employer to Implement a "speCIal program" to attempt to achIeve equal OppOrtunIty, WithOut beIng deemed to be dIscmhinatIng against negatively affected employees. It does not give authonty to create a program, It simply says that if the Employer does create a specIal program deSIgned to relieve hardshIp or economIC dIsadvantage or to assist disadvantaged persons or groups to achIeve or attempt to achIeve equal opportunity, or that IS likely to contribute to the elImInation of the mfrmgement of nghts under Part I that the program WIll not be conSIdered an Infrmgement of rIghts under Part I, In thIS case, of the GrIevor"s rIght to equal treatment With respect to employment Without dISCrImInatIon because of sex. Section 5 (1)[4(1)] There was no speCial program m place, and no authorIty IS found In the Ontario Human Rights Code for the restnctIOn of CompetItIon CI -4004-92 on the baSIS of sex! gender The exemptIOn referred to by Ms. Campbell related to the reassignment of male and female CorrectIOnal Officers for whIch, accordmg to her testimony, there was a polIcy m place. However, It dId not apply to LImIted EhgibIlity CompetItIons and has no effect on the m;itter at hand. Therefore, the Panel 36 , I ~ 't1 has concluded that the Employer rehed, in error, on the Ontario Human Rights Code when It restncted CompetItIon-CI -4004-92. ConClusion The .Panel has determmed that the earlIer blue CollectIve Agreement applIes, that the Human Resources Directives and GUIdelmes January 1991 were In effect at the relevant tIme, and that the Employer erred in relymg on the Ontario Human Rights Code as authonty for restncting CompetItIOn CI-4004-92. ArtIcle A.2 of the blue Collective agreement states that: A.l There shall be no dIscrImination practised by reason of race, ancestry, place of OrIgIn, colour, ethnIC orIgm, cItIzenshIp, creed, sex, sexual OrI~ntatIOn, age, mantal status, famIly status, or handIcap, as defined m sectIOn [9(1)]10 (1) of the OntarIO Human Rights Code (OHRC) A.2 It is recogmzed that In accordance WIth sectIOn 13 [14] of the ., OHRC, theEmployer's employment eqUIty program shall not be consIdered a contraventIOn of thIS artIcle. T):le Board has found, however, that LimIted EligibIlIty CompetitIOns, or the restnctIOn of I competItIOns, m thIS case on the basIS of sex/gender was not part of the Employer's employment eqUIty program at the tIme the competition was posted In January 1992, and thus the exemptIon \ to ArtIcle A.l set out In A.2 does not apply Therefore, the restnctIOn of the competItIOn to women which resulted in the bxclusion of men, In general, and the Gnevor, In particular, from submIttmg an applIcatIOn was discrImInatory m the case of Mr Kinsella and m VIOlatIOn of the CollectIve Agreement. REMEDY The partIes agree that Mr Kinsella's contInUOUS servIce date IS the date he began hIs employment WIth the Ministry of the SolICItor General & CorrectIOnal ServIces. Mr Kinsella mamtaInS that had he become a classified CorrectIOnal Officer m FebruaryiMarch 1992, that he would have been promoted to a CO 1, Level 1 and then to a C02, Level 2, SIX to eIght months * * earher than otherWIse. Dunng that penod he would have been workIng full-tIme as opposed to '.l 37 I "'. ~ the part-tIme hours WhICh he receIved as an unclassified Correctional Officer He testIfied that the difference In pay was between $3 00 and $4 00 per hour, and m hours approXImately one thousand. In hIs cross-eXamInatIon Mr Kmsella made it clear that he beheved that he had a good chance of success mthe competItIOn. He dId not agree With Mr Mously that Unclassified CorrectIOnal Officers were necessarily dIsadvantaged In aJob competItIOn. It was Mr Kmsella's OpInIOn that It IS, rather an assumptIOn whIch Human Resources makes. At the tIme of the competItIOn he had recently (December 1991) completed Phase IV of the mmIstry trammg program. Mr Mackay was asked about Mr Kinsella's specIfic SItuatIOn and he explaIned that SInce the start date and the contInUOUS servIce date are one and the same, that the tImmg of the competItIOn had no beanng In thIs partIcular case, and that hIS success m CompetItIOn CI -4004- 92 would make no dIfference to his semority date Further, he testified that IfMr Kmsella had been successful; that the ment Increase polIcy for unclasSIfied staff members would not have affected hIm as It was dIrected to unclassIfied CorrectIOnal Officers only Mr WhItaker SaId that the Umon IS seeking an order that the Employer has \ breached the provlSlon of the CollectIve Agreement and has acted Improperly In restrictIng the c~mpetItIon on the baSIS of gender It IS also asking the Board to place Mr KInsella m the pOSItIOn of a claSSIfied Correctional Officer whIch coincides WIth the tenure of the Incumbent and to order that he be paId retroactIvely the compensatIOn to whIch he would be entItled as a result of the Increase, WIth Interest, to the date of the placemeilt. Mr WhItaker noted that Mr Kinsella IS qualIfied to perform the duties undertaken by the Incumbent. The Employer has demonstrated that It IS aware of his abihtIes, having placed hIm m a claSSIfied pOSItion and havmg assIgned him management responsibIlIties and other speCIal assIgnments.Mr WhItaker submItted that, It IS not reasonable to run a competitIOn, three years after the onginal competitIOn has taken place. The Umon IS also a seeking compensatIOn for the travel tIme and mIleage for hIS trips to the Stratford JaIl. , 38 \ ~ <Y Mr Mously noted that Mr Kinsella was an unclassIfied CorrectIOnal Officer at the tIme of the competition and that the successful candidate was a Classified CorrectIOnal Officer With semonty datmg from 1988 and a number of years of expenence at another facIlIty There IS no mdIcatIon that the screemng, of whIch Mr Kinsella was not a part, was Improper or m bad faIth, or that the competItIOn was flawed. The Board may, he submItted, need to conSIder whether or not the outcome would have been dIfferent If the Grievor had, m fact, competed, gIven that he / was unclasSIfied and had less semonty than other competItors. He pomted out that Mr Kinsella IS now a ClasSIfied CorrectIOnal Officer at the Stratford JaIl and that hIS semority has been back- dated and therefore hIS semonty, clasSIficatIOn or rate of pay would not be affected by hIS beIng at eIther Waterloo or Stratford. Even If he had been successful, there IS no loss to hIm, and he would not have been In a dIfferent pOSItIOn than he IS today and there IS no remedy available to hIm. The Panel has conSIdered the eVIdence before It m relatIOn to the Gnevor's likelihood of success In the competItIOn and has not been persuaded that Mr Kinsella would have been ( successful in that competition If the Incumbent were competing, given the Incumbent's experIence and claSSIfied status. The Board is not, therefore, prepared to place the GrIevor m the pOSItIOn, or to order that the competItIOn be rerun. Nor is it prepared to award compensatIOn for travel smce It is of the opImon that an award for travel attaches to success In the competItIOn. ( There IS no questIOn, m the Panel's collectIve mmd, that the Gnevoqs capable, knowledgeable, hIghly motivated and is upwardly mobile in the. field of correctIOns. Indeed these quahtIes have now earned hIm claSSIfied status and actmg pOSItIons of trust and responsibIhty The Board belIeves that a declwatIOn that the exclusion of the Gnevor from CompetItIOn CI -4004-92 was dISCrImInatory under ArtIcle A of the CollectIve Agreement IS appropnate m thIs case. It also recogmzes that the depnvatIon of OppOrtunIty should be nghted In some way and It therefore orders that Mr Kmsella be permitted to apply for any CorrectIonal Officer pOSItIOns whIch are posted In the Western RegIOn for a perIod of two years from the date of this declSlon, and that any restrictIOns whIch are attached, shall not apply to hIm. 39 4.' 'V \ ~ ~~~ H.S F~Y;Vice-c~ Dated at. r' ~ r ~ ~, Cl ~ ola- I 7 ')S M Clark Member ~~. 1 ' D..,y JC L- - ( 40 - .- I ,'1 t": APPENDIX A Concise Chronology Timmg IS an Important factor m consIdenng the gnevance of Mr Kmsella and a conCIse chronology IS helpfuL Late 90 Cabmet approved an accelerated OPS Employment EqUIty Program and also approved the mclusIOn of posItIve measures m the expanded employment eqUIty program WhICh wasbemg developed ** Jan 91 Mr Kmsella began employment as an unclassIfied CorrectIOnal Officer With Ministry of SolICItor General and CorrectIOns. ** Jan 91 Issumg of Human Resources DIrectIves and GUIdelInes - Staffing ** Jun 91 Government announced an accelerated Employment EqUIty Program WhICh mcluded posItive measures [OR WAS THIS DEVELOPMENT OF] ** Dec 91 MBC approved Employment EqUIty DIrectIve reqUIring MimstrIes to deSIgn and \ implement positIve measures. (See March 1992) 20 Dec 91 Supenntendent Millar applIed to RegIOnal Office (Western) to post a classified positIOn (C02) requested postIng restncted to Waterloo DetentIOn Centre. 31 Dec 91 Date of reSIgnatIon of CorrectIOnal Officer at Waterloo DetentIon Centre 09 Jan 92 J CasSIdy , RegIOnal Manager approved postIng, demed restnctIOn to Waterloo and Imposed employment eqUIty restnctIon to femaie and extension to Western and Central RegIons. 15 Jan 92 Supenntendent Millar notified Mr Kmsella m wntmg of restnctIOn 14 Jan 92 Postmg date of Competition CI-4004-92 03 Feb 92 EffectIve date of green CollectIve Agreement changes** 06 Feb 92 Date ofMr Kmsella's applIcatIOn for CompetItIOn CI-4004-92 41 - . .' .'S 06 Feb 92 Closmg date of CompetItIon CI-4004-92 25 Feb 92 Date positIOn filled m CompetitIOn CI-44004-92 ** Mar 92 Human Resources Directives and GuidelInes - Employment Systems RevIew issued (See December, 1991) 05 Mar 92 Date of signing of green CollectIve Agreement 11 Mar 92 Date of letter of notificatIOn to successful candIdate (K. MacInnIS) 30 Mar 92 EffectIve date of appoIntment and reassIgnment of K. MacInnIS AprlMay 92 NotIce from MBC to Ministnes to cease restrIcted competItIons (Accordmg to Ms. Campbell) 31 Jul 92 Date ofMr Kinsella's letter re Employment EqUIty mOPS to*** 11 Aug92 Letter from Grace-Edward GalabuzI, SpeCial ASSIstant to Premier to Mr KInsella, replymg to hIS of July 31, 1992 15 Sep 92 ReceIpt of letter from Glenna Carr, Deputy Mimster, Management Board of CabInet by Mr Kinsella 03 Oct 92 ReceIpt by Mr KIilsella of the Human Resources Directives and Guidelines from Bob Sherman, Management Board Secretanat, Workforce PlannIng and Employment Equity Branch 03 Oct 92 Letter from Mr Kinsella to Supenntendent Millar re COmpetItIOn CI - 4004 -92 enclOSIng a, copy of the "Current SelectIOn DIrectIve and GUIdelInes" Issued by MBC In January 1991 ** Oct 92 Meetmg between Mr Kinsella and Supermtendent Millar 13 Oct 92 Filmg of grIevance by Mr KInsella J ** Jul 93 Cabmet approved POSItIve Measures DIrective and LImIted ElIgibIlIty CompetitIons Directive ** Aug 93 Human Resources DIrectIves and GUIdelInes - POSItIve Measures Issued 13 Nov 93 Mr Kinsella's letter to PremIer 42 I ~ . i --, l:" 15 Nov 93 BrIan Charlton, ChaIr of MBC announced the suspensIOn of all advertIsements for any lImIted eligibility competItIOn and a review of the measure. (PremIer's letter) 24 Nov 93 A second letter to the PremIer's office or mcorrect date? July 29, 1995 ** Dec 93 Use of LimIted Eligibility Competitions DirectIve suspended. (D Agnew's letter) 02 Dec 93 Premier's letter responding to November 13, 1993 letter ofMr Kmsella 01 Feb 94 Mr KInsella's letter to Pat Curley, SpeCIal ASSIstant to Mr Agnew in response to a letter (not submItted ?) From DavId Agnew, Secretary of the Cabmet and Clerk of the ExecutIve CouncIl 17 Feb 94 Mr Agnew's response to Mr Kmsella's letter of February 1, 1994 to Ms. Curley 43 _.. IJ