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HomeMy WebLinkAbout1996-1655.Strunc.00-04-05 Decision o NTARW EMPU)Y]ks DE LA COURONNE CROW"! EMPLOYEES DE L '()NTARW GRIEVANCE COMMISSION DE . . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1655/96 OPSEU # 96D998 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano Pubhc ServIce Employees UnIOn (Strunc) GIievor - and - The Crown m RIght of Ontano (Mimstn of the EnvIronment and Energy ) Employer BEFORE DanIel A. Harrts Vice ChaiT FOR THE Micheal Klug GRIEVOR Counsel Tolpuddle Labour CooperaTIve FOR THE Luc, SIraco EMPLOYER Counsel Legal SerVIces Branch Management Board Secretanat HEARING Jul, 9 1999 September 24 30 1999 Februan 7 11 2000 March 24 2000 2 THE PROCEEDINGS. The mmlstry of EnvIronment and Energy declared the gnevor, Vaclav Strunc, surplus on May 22, 1996 He was offered the pOSItIOn of semor envIronmental officer (E04) m the SpIlls ActIOn Centre, the office whIch coordmates the provmce's response to tOXIC spIlls mto the enVIronment He declmed that pOSItion on the baSIS that he was not qualIfied to do the Job, havmg spent the prevIOUS twenty-five years mstallmg, calibratmg and adJustmg field mstruments whIch momtor ambIent air qualIty He was not offered any other pOSItion. The umon takes the pOSItion that the gnevor was not mlmmally qualIfied to bump mto the pOSItIOn. The employer says that he was THE FACTS. The gnevor began workmg as a field mstrument technIcIan m August 1971 He occupIed that pOSItIOn through vanous mmlstenal reorgamzatIOns until January 12, 1998 when he retired, bemg the earlIest possible date he was elIgible to retire As set out above, he receIved a notice dated May 22, 1996, whIch adVIsed hIm that hIS pOSItion was bemg declared surplus He completed a "DIsplacement InformatIOn Record" and forwarded It to the DIrector, Human Resources Branch of the mmlstry of EnVIronment and Energy under cover of May 23, 1996 That covenng letter reads as follows 3 Mal) Etta Chene, DIrector of Human Resources Branch 5th Floor 40 St. Clair Ave. West Toronto Onto M4V 1M2 Ma, 23 1996 RE Vaclav Strunc, EnvIronmental Officer 4 SIN 443-148-267 MOEE Central Region With regard of dIsplacement possibIh~ please be advIsed that m, past expenence mcludes work of EnvIronmental Officer m Abatement Section Central Region (Toronto West) for five vears as Emergenc, Response Person (1986-1991) I have absolved all related courses and traInmg. Also note that there IS a precedent m two cases where two Au TechnIcIans (EO 4) recenth transferred from Tech. Support section (Au Momtonng) to Toronto DIstnct (Abatement) SectIOn and Y orlJDurham DIStnCt Office. (Nelson DUCUSlll and DanIel AqlllO) Regards, Vaclav Strunc cc Dave Crump, DIrector of Central Region MOEE There are also several pOSItIOns of Au Momtonng TechnICIan as well as Telemem and Meteorology TechnICIan (E04) at the AIr Resources Branch (125 Resources Rd. EtobIcoke) whIch are Wltlun the 40 km lI11llt. Thanks, V Strunc In hIS letter to the DIrector, Human Resources Branch, he relIed on hIS five years of part-time expenence as an Emergency Response Person (ERP) That pOSItion IS now called EnVIronmental Response Person. It IS useful at thIS Juncture to bnefly reVIew those duties m the context of the bumpmg opportumty proVIded to the gnevor 4 The ERP IS the provmclal government employee who responds to a spIll mto the envIronment by attendmg at the scene At the time the gnevor exercIsed the duties of the ERP, the program was reasonably new Employees of the mmlstry volunteered to be on call m the event a spIll occurred outsIde of regular workmg hours Dunng regular workmg hours, regularly scheduled abatement officers performed such duties The on-call employees would be contacted and adVIsed of the locatIOn of the spIll by the envIronmental officer m charge of the SpIlls ActIOn Centre (hereafter referred to as SAC) That IS the posItion offered to the gnevor after he was declared surplus The gnevor described hIS prevIOUS work as an air qualIty technIcIan. He Said It was a SImple Job that reqUIred lIttle mdependent deCISIOn makmg HIS was essentially a field pOSItion, whIch mvolved the routme mstallatIOn and mamtenance of air qualIty measurement mstruments He mamtamed the mstruments at between SIX and eIght fixed locatIOns and mIght gIve SImple dIrectIOns to contractors responSIble for snow removal and the lIke at those locatIOns The mstruments transmItted data to a central locatIOn. In the event of faulty data bemg transmItted, he would follow up to flag the data as suspect and ensure that the field mstruments were calibrated WIth the mam computer He would also place measunng deVIces at temporary locatIOns of hIS choosmg HIS contact WIth the publIc was lImIted to satIsfymg the cunoslty of onlookers He was not reqUIred to deal WIth the news medIa or WIth emergency SItuatIOns The 5 gnevor's only past exposure to emergency sItuatIOns was as an on-call Emergency Response Person from approxImately 1985 to 1991 The gnevor described hIS mvolvement as an ERP as havmg been part-time after hIS regular shIft as an AIr TechnIcIan. He said that he would be called by the Semor EnvIronmental officer at SAC and told to go to a specIfic locatIOn to mvestIgate a complamt of a spIll or potential spIll Once there he would contact the SAC and receIve detailed mstructIOns as to what was to be done, mcludmg gathenng of samples, WItness names and the like The gnevor said that all mstructIOns came from SAC, he made no mdependent deCISIOns However, he was reqUIred to mvestIgate the complamt and was asked to call the people who complamed m order to let them know that the SItuatIOn was under control He was called to such a scene once or tWIce per week. The gnevor said that when the programme started he receIved a one-week trammg course to prepare hIm for hIS ERP duties He receIved a certIficate confirmmg he successfully completed the "SpIlls and Emergency Response Semmar" from June 16-20,1989 Although that trammg was not very deep, It mvolved all types of spIlls He also Said that It was more or less mandatory for all EnVIronmental Officers to be mvolved. The gnevor also successfully attended an "EnVIronmental Law Enforcement Course" from May 8-12, 1989 6 After performmg the ERP functIOn for approxImately five years, the gnevor was told that hIS classIficatIOn, technIcal support, would no longer be elIgIble to partIcIpate As the gnevor understood It, the functIOn was to be fulfilled by regular Abatement Officers, smce the wage premIUms for the ERP mcreased, and a larger pool of employees became mterested. The gnevor allowed that hIS ERP expenence would have been a small asset m performmg the E04 pOSItion he was offered m the SAC However, the gnevor testified that from the moment he was offered the SAC Job he had mlsglvmgs as to hIS competence to fill It. After bemg offered the SAC pOSItion the gnevor went to the SAC and met WIth JIm Renhan, the SAC supervIsor Mr Zikovltz, the Head of the SAC was not aVailable to meet WIth hIm Also present was a co-worker, Rudy De Guzman, another surplused field mstrument technIcIan who had been offered an E04 pOSItion m the SAC Mr Renahan described the pOSItion to them They asked If they would get trammg before startmg, they wanted a teachmg penod of preparatory courses Mr Renahan told them they would have to go on duty nght away The gnevor Said that they were told there would not be any courses offered "at least, not ImmedIately" The gnevor was concerned that he would be reqUIred to supervIse more knowledgeable E03 employees m the office He was also concerned that he would be scheduled to work alone on the mght shIft. However, the gnevor Said that they dId not dISCUSS the shIft schedule They only dIscussed 7 whether they would get trammg Mr Renahan's response was that they would have to start nght away Mr Renahan also testified about hIS meetmg WIth the gnevor and Mr De Guzman. He said he gave them a bnef tour and explamed the shIft schedule and the matenals used by the E04 on-the-Job As to schedulmg, Mr Renahan said that he told them they would not start ImmedIately on the mldmght shIft and they would have access to hIm as a resource He said It IS a standard routme to wean the EO's from relymg on supervISIOn. He belIeved that he had explamed that the schedulmg of the first mght shIft would be delayed as long as possible He also said that he had told them that there would be no trammg pnor to them startmg They had to have the mmlmum qualIficatIOns but would be onented to the Job HIS recollectIOn of the meetmg was that the gnevor dId not ask many questIOns The gnevor dId express hIS dIssatisfactIOn and said that It was not an appropnate pOSItion. He also recalled that the gnevor felt there was an exact match elsewhere and dId not know why he was matched WIth the SAC Mr Renahan also testified about the trammg usually proVIded for the pOSItion. He said that It IS essentially on-the-Job trammg New employees shadow an EO whIle they work m order to be exposed to the routme tasks of recelvmg telephone calls, entenng occurrence reports, faxmg occurrence reports to the dlstnct offices concerned and mamtammg the office eqUIpment He Said such onentatIOn lasts 8 approxImately one week and It would generally be five or SIX weeks before a semor EO would be reqUIred to work alone on mldmghts In recent years that Job shadowmg functIOn has been provIded by the same EO, who has developed a form oftrammg check-lIst. The only formal trammg courses reqUIred of new hIres would be the EnVIronmental Responders Course and the EnVIronmental Law Course Bob Shaw also testified. He IS the RegIOnal DIrector of the Central RegIOn. As part of the downslzmg of the mmlstry, he revIewed all pOSItions m the mmlstry from a functIOnal perspective In all, the mmlstry lost one-thIrd of ItS employees, bemg approxImately 130 to 140 employees m each of May 1996 and January 1997 Subsequent to the surplus notices bemg Issued, he determmed the pOSItIOns that surplus employees would be qualIfied for across the dIVISIOn. He reVIewed the gnevor's SItuatIOn to determme what pOSItion he was qualIfied to dIsplace to wlthm the operatIOns dIVISIOn. He dId not do the actual matchmg Smce the gnevor had been determmed to be qualIfied to dIsplace to the SAC, he was matched WIth the most Jumor E04, Scott Thompson. In hIS eVIdence, Mr Shaw explamed hIS understandmg of the duties of both the gnevor's ongmal pOSItIOn and that m the SAC In hIS VIew, the gnevor was qualIfied for the SAC E04 pOSItion based on the followmg factors the duties of the two pOSItions, the gnevor's length of time m the mmlstry, hIS ERP expenence and the very prescnptIve nature of the E04 pOSItion m the SAC As a long-term mmlstry 9 employee he had valuable knowledge of the basIc structure of the mmlstry The gnevor's expenence as an ERP gave hIm an Important vIsual context for the E04 Job Mr Shaw said that the E04 role at the SAC was to decIde If mmlstry personnel should attend the scene of a spIll That decIsIOn was gUIded by clear procedures He said the SAC Job was not a sImple Job, but It was straightforward. THE SUBMISSIONS OF THE PARTIES The umon submItted that the questIOn for the Board to determme IS whether the gnevor was qualIfied to perform the work of a semor envIronmental officer m the SpIlls ActIOn Centre m May 1996 The umon said that not only was the gnevor unqualIfied, but It would have been Irresponsible to put hIm m that pOSItion at that time Further, the umon said that the gnevor would have reqUIred trammg m order to perform the work. The umon said that the gnevor's expenence as an air qualIty technIcIan dId not proVIde hIm WIth any of the skills reqUIred of the SAC pOSItion. He was tramed to calibrate, repair and mstall ambIent air qualIty measurement mstruments Although he possessed sIgmficant and sophIsticated skills, they were not the skills reqUIred by the SAC pOSItion. Further, he was not reqUIred to make mdependent deCISIOns, m contrast WIth the SAC pOSItion. The umon revIewed the SAC pOSItion reqUIrements and urged upon the Board the conclUSIOn that It reqUIred 10 very partIcular skills wIth Immense responsibIlIty The semor envIronmental officer posItion was described as a key player m the Provmce' s response to spIlls mto the envIronment. The umon revIewed the posItion speCIficatIOn for the semor EO posItion and Said that It clearly reqUIred a level of responsIbIlIty far m excess of the gnevor's expenence The umon also revIewed the documents used by the semor EO and other documents explammg the role of the SAC The umon submItted that the complexIty of the pOSItion was beyond the abIlIties of the gnevor The umon also revIewed the gnevor's expenence as an emergency response person. The umon Said that the pOSItIOn at the time relIed heaVIly on the dIrectIOn and expertIse of the semor EO m the SAC That IS, the gnevor's expenence was as the eyes and ears of the semor EO He merely followed speCIfic dIrectIOns as to what was to be done at the SIte of the spIll Accordmgly, he learned very lIttle as an ERP The umon also Said that the eVIdence was conSIstent WIth the semor EO contmumg to contnbute expertIse to the field ERP The gnevor would have had lIttle to contnbute The umon submItted that the gnevor would be reqUIred to fulfill the full duties of the semor EO from the outset On that baSIS he would have qUIckly been scheduled to work the mght shIft alone, leavmg an unskilled mdlvldual m charge to respond any tOXIC spIlls up to and mcludmg nuclear spIlls or releases The 11 umon Said that the gnevor had the nght under the collective agreement to be offered a Job he was capable of domg. He was demed that nght when the employer offered hIm the SAC Job m the hope that he would declme It. The umon relIed on OPSEU (Laebe!) and ministry of Municipal Affairs and Housing GSB#331/82, (unreported, 83-02-15, Venty) The employer charactenzed the Issue as whether the umon had met the onus of demonstratmg that the gnevor was not mlmmally qualIfied to perform the duties of the semor envIronmental officer m the SpIlls ActIOn Centre The employer Said that It had the nght to deCIde on the qualIficatIOns reqUIred for a Job The Job speCIficatIOn was Said to set out the Ideally qualIfied candIdate rather than the mlmmal qualIficatIOns to do the work. It was submItted that the umon's VIew of the mlmmal qualIficatIOns reqUIred was so hIgh that no one would possess them The employer Said that the umon had not met ItS burden. There was no eVIdence that the gnevor had not performed hIS prevIOUS E04 Job well The eVIdence of the employer was Said to establIsh that the SAC Job was straight-forward and prescnptIve It mvolved obtammg mformatIOn from people callmg m to report spIlls and usmg the vanous SAC resources to determme whether to send out an ERP The gnevor's prevIOUS Job reqUIred suffiCIent declsIOn-makmg so as to qualIfy hIm for the SAC E04 Job It was submItted that the gnevor's apprehenSIOns about the complexIty of the SAC Job were unfounded. HIS twenty- 12 five years expenence wIth the mmlstry also sUIted hIm for the SAC posItion. The SpIlls ActIOn Centre IS responsible for gathenng mformatIOn to ensure that ultimately there IS legIslative complIance It IS not the pnmary emergency response, that role belongs to the mumclpalIty The gnevor was also Said to have mIsapprehended the relative roles of the SAC E04 and the ERP The employer submItted that the ERP was not dIrected by the SAC E04, rather, the SAC E04 mltIated the call-out and the ERP ensured an adequate field response The SAC E04' s role was to record the mformatIOn obtamed, m accordance WIth establIshed procedures The ERP role had changed smce the gnevor performed It. As to hIS other qualIficatIOns, the employer Said the gnevor had database management skills, sIgmficant technIcal expenence and trammg, problem solvmg skills, baSIC knowledge of chemIstry, computer hardware and software competency as well as ERP expenence and trammg The employer argued that the gnevor was capable of performmg the mmlmum reqUIrements of the pOSItion WIthout trammg It argued that the gnevor was entitled to a famIlIanzatIOn penod, whIch would have been suffiCIent to onent hIm to the Job, espeCIally gIven that It was not expected that anyone would memonze the varIOUS procedures They were only expected to be able to look up the appropnate procedure as needed. 13 The employer relIed on the followmg authontIes Newfoundland (Treasury Board) and NA.P E, Re (1992),27 LAC (4th) 137 (Browne), Husby Forest Products Lts, and I WA., Loc 1-71, Re (1989),5 LAC (4th) 118 (BIrd), PEGO (Donyina) and ministry of Environment and Energy, GSB# 2897/96, (umeported, 98-06-09, Bnggs), OPSEU (Palangeo) and ministry of Transportation and Communication, GSB# 227/83, (umeported, 84-03-07, Venty) REASONS FOR DECISION. In thIS matter the umon says that the employer VIOlated article 20 4 1 It says that the gnevor was not qualIfied to perform the work of the least semor employee m hIS classIficatIOn, bemg that of Mr Scott Thompson. Accordmgly the employer was reqUIred to carry on the search for an appropnate pOSItIOn under artIcle 2041(b) ArtIcle 20 4 1 IS as follows 20 4 1 An employee who has completed hIS or her probatIOnal) penod, who has receIved notIce ofla, -off pursuant to ArtIcle 20.2 (Notice and Pa, m LIeu), and who has not been asSIgned m accordance WIth the cntena of ArtIcle 20 5 (Redeployment) to another pOSItIOn shall have the nght to dIsplace an employee who shall be Identified b, the Employer m the followmg manner (a)The Employer will Identr/\ the employee WIth the least seruon~ m the same clasSIficatIOn and the same lllirusm of the employee s surplus pOSItion. If such employee has less seruon~ than the surplus employee, he or she shall be dtsplaced b, the surplus employee proVIded that: (i) such employee s headquarters IS located WIthm a fom (40) kIlometre radIUS of the headquarters of the employee; and (ii) the surplus employee IS qualIfied to perform the work of the IdentIfied employee. 14 (b) If the surplus employee IS not quahfied to perform the work of the least semor employee IdenTIfied under paragraph (a) above, the Employer wIll conTInue to Identrf\ m reverse order of semon~ employees m the same classIficaTIon and m The Issue for determmatIOn IS whether the gnevor was qualIfied to perform Mr Thompson's work, bemg the posItion of semor envIronmental officer m the SpIlls ActIOn Centre The qualIficatIOns reqUIred m order to dIsplace a Jumor employee are not those of a fully qualIfied and expenenced mcumbent. It IS well establIshed that a dlsplacmg employee need only have mmlmum competence m the major components of the Job The foundatIOn case m thIS area IS Laehel (supra) VIce Chair Venty Said the followmg at pages 21-22 To determme If a surplus employee IS quahfied to perform the work pursuant to ArtIcle 24.2.3 the Board accepts Management s argument of present abih~ to the extent of lllimmum competence m all components of the Job reqUlrements To adopt an, hIgher test of present abIh~ would be to destro, the sIgmficance of ArtIcle 24.2.3 That ArtIcle has been mutualh agreed upon b, the PartIes to benefit surplus employees b, affordmg them certam preferentIal nghts of appomtment. Few If an, surplus employees would succeed m movmg successfulh from one lllimstn to another If the accepted test were more strIngent than lllimmum competence m all of the maJor components of the Job Such an mterpretaTIon does not mean that a surplus employee must possess skill and knowledge m all aCTIVITIeS assocIated WIth the pOSITIOn. However It does mean skills and knowledge of the mam components of the pOSITIOn. In the subJect case, knowledge of the lllimstn s obJeCTIves, pohcIes and programs are all maJor components of the pOSItIOn, each of whIch IS essenTIal to a surplus employee to be deemed qualIfied to perform the work Havmg conSIdered the eVIdence, mcludmg the extenSIve reVIews of the Job pOSItion speCIficatIOns put forward m the course of the heanng, I conclude that the gnevor dId have mmlmum competence m the mam components of the pOSItion. 15 The E04 posItion m the SAC IS not a SImple one However, I agree wIth Mr Shaw that It IS straightforward. The central tasks of the Job are to document the facts of a reported spIll mto the enVIronment and to determme whether It IS necessary to dIspatch an envIronmental response person to the sIte of the spIll The pOSItion also proVIdes adVIce to those mvolved WIth the spIll and notificatIOn of the spIll to others who should be mvolved. The gnevor was of the VIew that he dId not possess the reqUISIte knowledge to perform the pOSItion. That IS, hIS lack of knowledge meant that he could not make the deCISIOns necessary to carry out the Job The Job IS straightforward m that the protocols for dealmg WIth vanous eventualIties are well laid out m a number of documents upon whIch the E04 IS reqUIred to rely The mcumbent IS not, and could not be, expected to know all of the contents of these documents Certamly over time one would mcreasmgly gam famIlIanty WIth theIr contents However, the employer does not, nor could It, expect mdlvlduals m the Job to have commItted such volummous matenals to memory Vanous types of spIlls are anticIpated m the document entitled "SpIlls ActIOn Centre Operatmg Procedures" Those procedures mclude reference to other 16 wntten resources aVailable m the SAC or by telephone to gUIde the E04 through any reqUIred declsIOn-makmg The response expected IS reasonably prescribed. It IS not necessary to reVIew thIS documentatIOn m detail It IS sufficIent to note that for a gIven SItuatIOn, the E04 has at her or hIS dIsposal mstructIOns on how to proceed. The gnevor has 25 years of expenence WIth the mmlstry HIS prevIOus Job reqUIred careful mOnItonng of data, data entry, and follow-up to ensure that the data was relIable As an ERP he took measurements and samples, contamed spIlls, preserved eVIdence, was the on-sIte lIaison person WIth mUnICIpal and other emergency response personnel, mtervlewed WItnesses and, on at least on one occaSIOn, was called upon to gIve eVIdence m court. He Said that he attended on SIte as an ERP once or tWIce per week for approxImately five years The gnevor Said that whIle he was an ERP he took mstructIOn from the E04 m the SAC The eVIdence dIscloses that at the time of hIS dIsplacement opportUnIty only abatement officers attended at the SIte as an ERP and the relatIOnshIp between the E04 at the SAC and the ERP was one of collaboratIOn. The gnevor relIed on the prescnptIve nature hIS prevIOus ERP expenence to dImInIsh hIS abIlIty to dIscharge the duties of an E04 m the SAC That IS, m hIS VIew, hIS ERP actiVIties were so dIrected by the E04 that he was not exerclsmg any dIscretIOn at all However, hIS covenng letter to the DIrector, Human Resources Branch, relIed on the same expenence m order to support hIS suggestIOn that he be matched to an abatement pOSItion. He 17 Said m hIS eVIdence that he was hopmg that hIS ERP expenence would help hIm to get an abatement Job He understood that abatement officers worked wIth compames known to be pollutmg to bnng them mto complIance by, for example, checkmg on the technIcal aspects of scrubbers and so forth to make sure they were properly mamtamed. Nonetheless he now says that the ERP expenence would be of only lIttle aSSIstance m the SAC There IS some dIscrepancy between the formal pOSItion specIficatIOn for the E04 pOSItion m the SAC and the pOSItion as performed. Even takmg the pOSItion specIficatIOn at ItS most stnngent, It IS not determmatIve of the mmlmum qualIficatIOns needed to secure the pOSItion m a dIsplacement SItuatIOn. The gnevor had the mmlmum reqUIrements gIven the prescnptIve nature of the expectatIOns of hIm, the reqUIrement that he use the wntten and verbal resources laid out m the procedure and other manuals, hIS twenty-five years oftrammg and expenence WIth the mmlstry m the envIronmental field, hIS general, albeIt rudImentary, understandmg of chemIstry, hIS ERP formal trammg and five years of part-time expenence, hIS extensIve computer skills, mcludmg data management and, finally, the Important fact that everyone who comes mto an EO pOSItion m the SAC IS thoroughly onented to the Job by a fellow employee What makes thIS Job straightforward IS that It reqUIres on-the-Job onentatIOn. It IS not a pOSItion that reqUIres trammgper se smce one must be thoroughly onented or famIlIanzed on- the-Job to the prescnptIve nature of the tasks Someone bumpmg mto a pOSItIOn 18 has the nght to a famIlIanzatIOn penod. The famIlIanzatIOn penod here IS thorough enough that a person wIth the gnevor's general envIronmental trammg and expenence has the mlmmal qualIficatIOns necessary to dIsplace the Jumor mcumbent DECISION. The offer to the gnevor of an E04 posItion m the SpIlls ActIOn Centre was not an mappropnate match as alleged by the umon. Accordmgly, the gnevance IS dIsmIssed. Dated at Toronto, thIS 5th Apnl, 2000 DanIel A. HarrIs, V Ice-Chair