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HomeMy WebLinkAbout1996-2897.DONYINA98_06_09 OwrARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'OwrARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 800, TORONTO ON MSG 1Z8 TELEPHONEfTELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB #2897/96 IN THE MA TIER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETILEMENT BOARD BETWEEN PEGO (Donyina) Grievor - and - The Crown in Right of Ontano (Ministry of Environment and Energy) Employer BEFORE FeliCIty D Bnggs Vice-Chair FOR THE Larry Robbins UNION Counsel Union Consultmg SefV1ces EMPLOYER DaVid Strang Counsel, Legal SefV1ces Branch Management Board Secretanat HEARING June 26, 1997 July 18, 1997 October 15, 1997 Tills IS the fIrst collecTIve agreement between Management Board of Cabmet representIng the Crown m RIght of Ontano and the ProfessIOnal Engmeers and Arcilltects of the Ontano Pubhc Semce The gnevance of DaVId Donyma IS the fIrst matter to come to the Gnevance Settlement Board for heanng and determmaTIon. DavId Donyma IS a ProfessIOnal Engmeer who began workIng for the Mnnstry of Envrronment and Energy m April of 1987 Dr Donyma was nOTIfIed by letter dated May 22, 1996 that ills pOSITIOn of Sector SpeCIalIst Minerals, ProfessIOnal Bargammg Engmeenng 8 (heremafter referred to as "PB8") With the Envrronmental Momtonng and ReportIng Branch was bemg declared surplus effeCTIve that same day He was adVIsed that he would be assIsted m revIewmg ills enTItlement and searchIng for alternate employment. Fallmg ills bemg assIgned to another pOSITIOn, he was to be laid off November 22, 1996 By letter dated October 21, 1996 he was mformed that he rmght be able to dIsplace another employee WIth less semonty If he met the cntena found m artlcle 14 5 He was to mdIcate whether he wanted to exerCIse ills dIsplacement nghts and whether he was prepared to msplace mto a posl1:lOn beyond 40 kIlometers of ills headquarters The gnevor responded m the affinnatlve on the same day to both of those quesTIons However, on October 31, 1996, the gnevor was mformed that the Employer had been unable to Identlfy a dIsplacement opportunIty He was ultunately laId off as of November 22, 1996 On November 21, 1996, Mr AzIZ Ahmed, ChaIT of the Gnevance COmmIttee, sent the followmg gnevance to the Employer DaVId K. A Donyma, P Eng. receIved notificatIon dated October 31, 1996 that employer (sic) has been unable to IdentifY a dIsplacement opportunIty The Assoclauon gneves that the employer has vIOlated ArtIcle 14.5 of the CollectIve Agreement, smce there are dIsplacement opportunItIes available. As remedy, the ASSOCIation demands that ArtIcle 145 be correctly unplemented. 1 . 2 The relevant sectIOns of the collectIve agreement are as follows DISPLACEMENT 145 1 An employee who has completed ms/her probatIonary penod, who had receIved notIce oflay-offpursuant to Sectlon 14.3, and who has not been assIgned to another posItion ill accordance With cntena of SectIOn 14 6 shall have the nght displace an employee ill the same ll11Il1stIy who shall be IdentifIed by the Employer ill the followmg manner. (a) The Employer wIll IdentifY the employee With the least seruonty ill the same classifIcatIOn and the same Mirustry as the employee s surplus posItion. If such employee has less seruonty than the surplus employee, he/she shall be displaced by the surplus employee provIded that: (I) such employee's headquarters IS located WIthm a forty (40) kllometre radius of the headquarters of the surplus employee, and (ii) the surplus employee IS qualIfied to perform the work of the Identified employee. (b) If the surplus employee IS not qualIfied to perform the work of the least seruar employee Identrfied under paragraph (a) above, the Employer will contillue to IdentifY In reverse order of seruonty, employees In the same claSSIficatIOn and In the same mInIStry until a less seruar employee IS found WIthm forty (40) kllometres of the surplus employee's headquarters whose work the surplus employee IS qualIfied to perform. ( c) F ailing displacement under paragraphs (a) or (b) above, the Employer will IdentIfY ill reverse order of seruonty, employee ill the classes ill the same class senes In descendmg order until and employee With less seruonty If found In the same ll11Il1stry WIthm forty (40) kilometres of the surplus employee's headquarters The Identified employee shall be displaced by the surplus employee proVIded he/she IS qualIfied to perform the work. The pOSItIon that the gnevor claImS he ought to be allowed to bump mto IS Sernor Engmeer m the Approvals Branch, Industnal Wastewater Urnt. The pOSItIon IS a multl-mcumbent classmcatlOn and the most JUlllor of the SIX employees, Ms. Cyntlna Fung Cheung, was gIven -notIce of these proceedmgs She elected not to appear or partICIpate It IS not my mtentIOn to set out all of the eVIdence, much of wluch was techmcal ill nature I will detail only that wluch IS suffiCIent for the baSIS of tlus deCISIOn, For the maJonty of lus employment With the rrurustIy, the gnevor was a Sernor Sector SpecIalIst and was claSSIfied as a PBE 9 Ms. Cheung's pOSItIOn IS claSSIfied at the PBE 7 level. It was the Urnon's VIew that the gnevor can do the work presently petformed by Ms Cheung and, accordmgly, should be gIven the posloon With full redress It was the Employer's pOSItIOn that, wlule the 3 gnevor IS lughly quahfied m lus own field of metallurgy, lus IS srmply not quahfied to do the work of Semor Engmeer m the Approvals Branch, The gnevor can only bump mto the work If he can perform the work of the Idenufied posIuon, SpecIfically, It was the Employer's VIew that It does not have to replace a fully quahfied person wIth a dIsplaced employee who would have to learn the work. Dr Donyma obtamed a Bachelor of SCIence at McGIll UmversIty m 1971 He then went to the UmversIty of Toronto and receIved a Masters m Engmeenng from the Department of Metallurgy and Matenals SCIence and a Ph,D m 1981 HIS theSIS was regardmg "Process Metallurgy of Ferromanganese" After obtammg lus Ph.D he worked for Kettle Creek Mmes as a Semor Development Engmeer for SIX years before begmmng rus employment WIth the IllllliStry HIS first posIuon WIth the IllllliStry was as a Sector SpecIahst on the MumcIpal Industnal Strategy for Abatement (heremafter referred to as "MISA") project wruch was a major government lllitiative to estabhsh rules and regulations regardmg contammants m the envuonment. After eIght years m that pOSItion he became a NatIOnal Pollutant Release Inventory (NPRI) SpecIahst where he gathered, reVIewed and evaluated data pertammg to NPRI Issues Mr Wilfred Ng has been the Duector of the Approvals Branch for five years He has a -Masters of Chermcal Engmeenng degree and has worked WIth the IllllliStry smce 1977 He explamed the work of the Approvals Branch, He stated that there are three components to the work done by the branch. The first IS the Issuance of CertIficates of Approval for arr, water and wastewater dIscharges and waste management facihties Second IS the management of secnnty accollilts, that IS, the momes reqUITed to clean contammated SItes and the thrrd IS the pohcy and program development component. There are a also three sections to the branch. One section deals With au and nOIse ermSSIOns 4 Another deals WIth mumcIpal water and wastewater and fmally a sectIOn dealmg wIth waste management facIlItIes, such as landfill SItes It was Mr Ng's eVIdence that Seruor Engmeers m the Approvals branch are qUIte mdependent m theIr work. It was explamed that a CertIficate of Approval IS a legal mstrument that would allow an applIcant to proceed WIth certam actIVItIes The Engmeer consIders the applIcatIon takIng mto account the character of wastewater to be treated, detenrunes the treatment and effiCIency of the desIgned treatment system and the expected effluent qUalIty and compares It WIth the legIslated reqUIrements to detenmne If the applIcatIon complIes Once the applIcatIon IS assessed, the engmeer puts together the documentatIon WIth a summary and subrmts It to the DIrector of the Branch for SIgnature Accuracy IS essentIal because the CertIficates of Approval are used for future enforcement control. If necessary, the engmeer can establIsh condItIons to be met for applIcatIon approval and would conduct those negotIatIons New employees reqUITe onentatIon WIth a reVIew of manuals They are gIven sample applIcatIons and supervIsors "walk them through the process" There are mternal gUIdelmes to aSSIst new Approvals Engmeers to become completely fanulIar WIth the process of Issumg CertIficates of Approval. He recalled that when he began as an Approvals Engmeer he needed almost a full year before he was fully versed m all applIcatIOns and although It has been a number of years smce he began WIth the mmIstry he was of the VIew that a year would stIll be reqUITed for fanulIanzatIon to be complete Mr Ng stated that It was not unusual for engmeers m the Approvals Branch to consult others dunng the course of theIT work. They have standards to aSSIst but If standards have not been developed they can ask the standard development branch to seek an appropnate benchmark. Mr Ng testIfied that Ms Cheung has been a Seruor Engmeer m the Approvals Branch for 5 approXlIDately five years and so IS "fully operatIOnal" The Branch was attemptIng to have staff become experts m certam mdustnal sectors For example, Ms Cheung does forty five percent of the CertIficates of Approval for the power generatmg mdusOy It was not Mr Ng's VIew that bumpmg mto a pOSItIOn WIth the Approvals branch IS ImpossIble Indeed, one posItlon m the arr sectlon had been bumped mto and also one m water There was much eVIdence about one of the engmeers who bumped mto the branch. He, hke the gnevor, worked WIth MISA at one tune He was a chenucal engmeer WIth wastewater technology expenence He had worked WIth the SCIence and technology branch for a year and a half specIfically dealmg WIth mumcIpal water and sewage plants In assessmg whether the gnevor was quahfied to perform the work at Issue, Mr Ng stated that he used the "standard form" He consIdered whether the gnevor had pnor expenence With assessment of an apphcatlon and whether he had the requrred knowledge and expertIse He Said that "the key pomt here IS the ablhty to assess apphcatlons WIth a full range of compleXIty" In the wastewater Ulllt, he wanted an engmeer WIth a chenucal, CIVIl or samtary background to ensure that the mcumbent had expenence m the desIgnmg and treatment of wastewater Mr Ng testlfied that he derued the gnevor's dIsplacement request because he could not perform the mam functlons of the posItlon wmch are set out m the major responsibIhty sectIOn of the PosItlon Descnptlon. Those responsibihtles are ReVIews and evaluates engmeenng deSIgns, specificatIOns and other submIsSIOns subnutted WIth apphcatIons havmg a full range of compleXIty for constructIOn, mstallatIOn or modIfication of mdustnal wastewater treatment facilItIes; ensures accuracy and completeness of mformatIOn, and complIance WIth the Ontano Resources Act, EnVIronmental ProtectIOn Act, EnVIronmental Assessment Act, EnVIronmental Bill ofR.J.ghts (EBR), regulatIOns and Mirustry pohcIes and gwdelmes and other cntena, Prepares reVIew reports and Certificates of Approval WIth assocIated terms and condItIons for approval by the sIgnmg DIrector under the legIslation. In cross-exammatlon Mr Ng conceded that a nux of acadenuc backgrounds IS good and he agreed that engmeers m the Approvals Branch work together However, he remamed - 6 adamant that the gnevor was not qualIfied to perform the work. Further, he agreed that new techmques appear from tIme to tIme and the engmeers are expected to learn and adapt to the changmg envrronment. Mr Ng dId not speak WIth the gnevor's supefVlsor regardmg ills ability or expenence dnnng the process of makmg ills assessment. He based ills decIsIon that the gnevor was not quahfied based on the gnevor's resume and employee portfoho Dr Donyma testIfied that dunng ills engmeenng educatIOn he took a course on how to deSIgn wastewater collectIOn and vanous treatment systems He also reVIewed ills workmg expenence that mvolved wastewater While at Kettle Creek Mines he was mvolved WIth the wastewater treatment system, Dunng the penod that he worked as a Sector SpecIalIst wIth MISA, the gnevor was responsible for one of the rune sectors HIS area of responsibIhty was mdustnal mmerals wmch are the non metallIc mmerals like clay and shale His dutIes and responsibIhtIes WIth MISA mcluded workmg WIth comrmttees to formulate regulatIons, momtonng dIscharge, evaluatmg and analyzmg data. He acted as spokesperson for the government WIth mdustry representatIve and acted as an adVIsor Each Sector SpecIahst was responsible for wastewater dIscharges from theIr sector and had to understand the technology for Its treatment. He had occaSIOn to adVIse the engmeer m the Approvals Branch dunng ills tIme WIth MISA. In ms next pOSItIon wIth the government, Dr Donyma became a multI medIa pollutant release specIahst. He dutIes mcluded collectmg data regardmg water, land -and aIr pollutants He also analyzed the matenal gathered to aSSIst m the determmatIon of governmentpohcy The gnevor conceded that he would need a short onentatIon to learn to appropnate paper traIl for apphcatIOns m the Approvals Branch, He testIfied that he was famIhar WIth wastewater facIhtIes and that he possessed the knowledge of baSIC theones and pnncIples mvolved m the deSIgn of wastewater treatment facIlItIes He stated that he was capable of all of the dutIes and responsibIhtIes set out m the POSItIon DescnptIon for Semor Engmeer 7 In cross examma1lon, the gnevor agreed that the purpose of metallurgIst IS to free metal from ore and that the purpose of wastewater treatment IS to punfy water He conceded that he never had occaSIOn to desIgn a wastewater treatment system but he desIgned expenments for rmposmg the qualIty of wastewater wlule he was WIth Kettle Creek Mmes In lus eVIdence m cluef, Dr Donyma stated that he had m-depth knowledge regardmg wastewater treatments However, m cross exammatIOn he conceded that he had no expenence m desIgmng or operatIng wastewater treatment systems mvolvmg stnppmg, reverse osmOSIS, dIs1llla1lon, VIolet dIsmfectIon process, sludge dIgestIon, IOn exchange process or any system m the aquaculture sector There was no dIspute between the partIes that the gnevor has more seruonty than Ms Cheung. UNION SUBMISSIONS Mr Robbms, for the Uruon, asserted that accordmg to artIcle 145 1 of the collectIve agreement, the gnevor ought to have been allowed to dIsplace Ms Cheung because he IS qualIfied to perform that work. It was the Umon's contentIon that artIcle 145 1 IS a threshold clause and therefore the gnevor does not have to be equal m skill or abIlIty to the mcumbent, he merely has to be qualIfied to do the aVaIlable work. Tlus test IS m dIrect contrast to that found at artIcle 7 3 dealIng WIth Job postIng. In those mstances, seruonty IS only utIlIzed m the event that the qualIficatIon of two candIdates are relatIvely equal. Mr Robbms subffiltted that tlus matter IS not one mvolvmg novel legal pnncIples but IS a 8 factual case The Board must assess the eVIdence and determme whether the gnevor IS qualIfied to do the work. The documents that assIst that task mclude the VarIOUS posItIon descnptIons, the gnevor's employee portfolIo and hIs cUlTlculum VItae A reVIew wIll show that the gnevor IS a hIghly qualIfied engmeer WhIle It IS correct that hIs mam focus was extractIve metallurgy, hIs work expenences mclude wastewater treatment systems Metallurgy IS closely allIed to chenncal engmeenng. Indeed, Dr Donyma testIfied that he took chenncal engmeenng courses dunng hIs educatIOn. The gnevor had to be an expert m mdustnal wastewater dunng hIs tune m the MISA proJect, the U mon suggested. Dunng that tune he was advIsmg mdustry representatIves about wastewater techruques The stated purpose of the posItIon of Semor Sector SpecIalIst accordmg to ItS PosItIon DescnptIon was To proVIde expert engmeenng and SCIentIfic advIce, assIstance and recommendatIOns m the major mdustnal sectIon (iron and steel) to head office, and regular staff m the preparatIOn, negotiatIOn, and ImplementatIOn of the MISA strategIes, programs and regulatIOns, ImplementatIOn of control programs, and on the resolutIOn of wastewater treatment problems. Under the Knowledge SectIOn of the POSItIon DescnptIon It was stated, m part: In-depth knowledge of mdustnal processes and wastewater treatment technology fanulIanty WIth applIcable federal and provmcIal acts and regulatIOns, and proven supenor abIlIty to mterrelate and commlUllcate effecuvely With people, mcludmg negotIatmg WIth mdustry and the publIc Keen awareness of pollutIOn control advances, productIOn technology Improvements, and busmess and market trends necessary for rapId comprehenSIOn of envIronmental problems and tImely recommendatIOn of potentIal solutIOns In an addendum to the POSItIon DescnptIon for redeployment purposes dated September 20, 1996, under the selectIon cntena sectIon It was stated, m part: In-depth knowledge of mdustnal processes and wastewater treatment technology for all mdustnal sectors With speCIfic expertIse m the Iron and steel sector In-depth knowledge of Ontano s Iron and steel sector and current wastewater treatment. Techrucal knowledge of environmental Issues and fate of cheIll1cals m the enVIronment. In-depth knowledge of the theones, pnncIples and pracuces of mdustnal processes, wastewater engmeenng and provmclal and federal enVIronmental legIslation, polICies, standards and gUldelmes m order to effectively plan, orgaruze, dIrect and control mdustnal envIronmental programs, Keen awareness of polluuon controVpreventIOn advances, production technology Improvements and bus mess and 9 market trends necessary for rapId comprehenSiOn of envIronmental problems and tlIllelV recommendatiOn of potentIal solutIons. Mr Robbms acknowledged that wlule the gnevor was workmg m the MISA program he worked at a macro level and the mstant pOSITIOn could be saId to be engmeenng on a Illicro level. However, that drfIerence does not render the gnevor unquahfied to perrorm the work of a Seruor Engmeer m the Approvals Branch. Indeed, the gnevor helped create the framework for gmdelmes that Seruor Engmeers m the Approvals Branch use on a dally baSIS Dr Donyma IS faIlllhar WIth the standards, regulatlOns and guldelmes In lus most recent pOSITIOn, Dr Donyma worked WIth all aspects of pollUTIon. There are many engmeers who consult and help each other m therr work. There are new technologIes emergmg all of the time and each engmeer must learn It to keep up The SCIence IS evolvrng and the gnevor would be able to perrorm the work. The Druon referred to the breakdown of Ms. Cheung's work. It mdlcated that she worked m the electnc power generaTIon sector, the rron and steel sector, metal castmg sector and aquaculture Tlus Board cannot find that the gnevor has to be able to fit squarely wlthm that work asSIgnment. The Druon asserted that the Employer will be askmg the Board to fmd that the gnevor IS not quahfied because he IS not faIlllhar WIth every wastewater treatment technology However, Mr Ng adtmtted that a vanety of technologIes are rarely seen. In fact, accordmg to the work breakdown authored by Ms Cheung, she spends less than fifteen percent of her tlme on Illiscellaneous apphcaTIons wluch mclude those mfrequently seen processes Mr Robbms remmded the Board that Mr Ng had allowed one of the other MISA engmeers to msplace mto the Approvals Branch. Mr Ng's eVldence was that the gnevor's background was more llIllited. However, at no pomt dId Mr Ng contact the gnevor's supefV1sor to mqwre as to lus qualrficaTIons and abiliTIes. It must be eVldent from the gnevor's expenence and educaTIon that he IS qualrfied to do the work. If tlus Board upholds the gnevance, It wIll 10 allow the gnevor to be dIsplaced mto a demotlOn. The Dmon rehed upon Re The Plummer Memorial Public Hospital and Ontario Nurses' Association (November 10, 1993), unreported (Venty), Re Humber MemorIal Hospital and Ontario Nurses' Association (January 24, 1994), unreported (Stanley), and Re Denison Mines Ltd. And United Steelworkers (1986), 25 L.A.C (3d) 230 (Spnngate) EMPLOYER SUBMISSION Mr Strang, for the Employer, began by suggestmg that tlus Board should keep m mmd throughout Its deliberanons that tlus unIon IS dIfferent from that wluch represents most employees m the pubbc servIce PEGO IS a unIon of professlOnal employees and the Employer IS enutled to expect profeSSIOnal servIce from the workforce The Mnnstry expects a level of Judgement and expertIse that IS not necessanly demanded of other pubbc servIce employees Tlus expectanon IS not mappropnate, It was suggested. Engmeers are profeSSIOnals and the Employer ought to be able to completely rely upon therr adVIse The functlOn of a Semor Engmeer m the Approvals Branch IS to examme processes suggested by mdustry and to ensure that therr apphcanons meet all of the necessary cntena for approval. They have to know the standards and ascertam whether the proposed system wIll meet those standards Mr Strang subrmtted that all of the gnevor's expenence WIth MISA IS ofhttle asSIstance for the posIuon at Issue The MISA project set standards and, no doubt, the gnevor was most helpful m that regard, However, the Job of Semor Engmeer IS one whIch ensures that all of those standards are met. The skIlls needed for those two posIuon are qUIte separate and dIStmCt. The Employer readIly conceded that there was no quesnon that the gnevor was lughly 11 qualIfied, However, ills expenence has been most WIth metallurgy and that would not be sufficIent for the work at Issue The other MISA employee who was allowed to bump mto the Approvals Branch had expenence as a wastewater specialIst. Some of the gnevor's expenence nught be useful m the posIoon at Issue However, that IS not the standard to meet accordmg to the dIsplacement proVIsIOns m the collecove agreement. The gnevor must be able to step m and perform the work and there can be no doubt that he cannot. The Dmon and the gnevor must prove to tlus Board that he IS able to bump mto the work and perform all of the pnmary functIOns Mr Strang contended that a reVIew of the POSloon Descnpoon of Semor Engmeer and the Job that the gnevor performed WIth MISA mdIcates that there IS lIttle overlap Further, a reVIew of the gnevor's cumculum VItae mdIcates that he has no expenence WIth the CertIficate of Approval process Indeed, he has nothmg but penpheral assocIaoon WIth the evaluaoon of wastewater treatment deSIgns HIS expenence at Kettle Creek Mmes prOVIded some expenence WIth wastewater but he solI had no mvolvement With the desIgmng of wastewater systems He was rejected by Mr Ng because he could not step mto the posIoon and perform the cnocal elements of the Job Wlule the Employer agreed that the gnevor IS not to be compared to the mcumbent, It was submItted that It would be helpful for the Board to look at Ms Cheung's cumculum VItae Virtually her entrre career has been spent dealmg WIth waste treatment and most of that has been dealmg With water The gnevor, on the other hand, followed a producoon engmeenng path. There IS no doubt that wastewater was a part of what he dId but that does not prOVIde hIm WIth suffiCIent skIlls to perform the work at Issue Even dunng ills expenence WIth Kettle Creek Mines, the gnevor dId not go through the CertIficate of Approval process, he merely prOVIded techmcal adVIce to the engmeer who was domg that work. It was contended by the Employer that as a lay person, It nught be dIfficult for the Board to 12 grasp the dIfferences m the vanous engineenng dIscIplmes Whtle one engmeer has consIderable knowledge about the a partIcular mmmg process or how to deal WIth solId waste, It does not follow that s/he has any knowledge about wastewater treatment. The onus IS on the Dmon to prove that the gnevor can do the work at Issue and that onus has not been dtscharged m thIs case Although the gnevor IS a lughly qualIfied metallurgIcal engmeer, he IS not quahfied to be responsible for the Certrficate of Approval process. The eVIdence of Mr N g was that It takes a lengthy penod to become facIle wIth the work. The gnevor cannot expect that penod of famihanzatIOn. He must be able to perform the cntIcal functIOns of the Job from the outset and there IS not proof that he would be capable of that. The Employer relIed upon Re The Crown in Right of Ontario (Ministry of Citizenship) and OPSEU (Henderson) (March 31, 1992), unreported (Barrett), Re The Crown III Right of Ontario (Ministry of Municipal Affairs and Housing) and OPSEU (Loebel) (February 15, 1983), unreported (Venty), Re The Crown in Right of Ontario (Ministry of Transportation and Communications) and OPSEU (Allison) (January 18, 1984), umeported (Roberts), Re The Crown in Right of Ontario (Liquor Control Board of Ontario) and OLBEU(Dyer) (March 8, 1983), unreported (Saltman), and Re The Crown in Right of Ontario (Ministry of Northern Development and Mines) and OPSEU (Smith) (February 8, 1995), unreported (Kaplan) In reply, Mr Robbms asserted that the effect of the Employer's argument IS that no one WIll ever be ale to bwnp mto a specIalty other than therr own and tlus cannot have been the mtentIOn of the partIes when they negonated artIcle 145 1 In the Dmon's VIew, It was understood between the partIes that the bargammg umt members are professIOnal engmeers and that they have many transferable skIlls The Employer's VIew of what IS requrred to be qualIfied to do the work IS beyond what was mtended, 13 DECISION In the mstant collectIve agreement, employees are entItled to bwnp mto other posItIOns based on therr semonty proVIded they are qualIfied to do the work. Tills proVIsIOn IS not UIllque It recogmzes the necessary balance m tunes of downsIzmg between the rmportance of semonty and the employer's need to be able to contInue domg busmess There has been much arbItral dISCUSSIon on willch of those competIng mterests prevaIls m any partIcular fact sItuatIon. Like many before me, I quote and endorse the comments of ArbItrator ReVIlle m Re Tung-Sol of Canada Ltd. (1964), 15 L A,C 161 found at page 162 Semonty is one of the most unportant and far-reachmg benefits wruch the trade umon movement has been able to secure for its members by VIrtue of the collective bargalll1llg process An employee's semonty under the terms of a collectiVe agreement giVes nse to such important nghts as relIef from lay-off, nght to recall to employment, vacatiOn and vacatiOn pay and penSiOn nghts, to name only a few It follows, therefore, than an employee's semonty should only be affected by vel)' clear language m the collective agreement concerned and that arbitrators should construe the collective agreement With the utmost stnctness whenever it is contended that an employee's semonty has been forfeited, truncated or abndged under the relevant sectiOns of the collective agreement. The language set out m the mstant collectIve agreement IS substantIally the same as that between the government and Ontano PublIc ServIce Employee Dmon. Virtually all of the junsprudence proVIded by the Employer were preVIOUS Gnevance Settlement Board decIsIOns between those partIes Although that junsprudence IS of assIstance, there IS one substantIve drfference m the case before me I am deahng WIth a workforce made up entrrely of professIOnal engmeers and arcilltects In thIs regard I note the comments of ArbItrator Venty m Re Plummer Hospital (supra) wherem he was decIdmg a gnevance filed by a regIstered nurse In ills delIberatIons, he took mto account an earlIer deCISIOn of ArbItrator Slume m a decIsIOn m the mdustnal settIng, ArbItrator Venty says at page 11 However, the facts of the mstant gnevance are illstmguishable from the Slume award, both on the language and the dIfference between labounng Jobs and profeSSiOnal Jobs. In our opmiOn, arbitrator boards must exerCise cautIon m ngIdly applymg pnnciples from the mdustnal settmg mto a profeSSiOnal settmg. While I would not refer to most classIficatIons With the publIc servIce "labounng jobs", I am -- 14 of the VIew that I cannot srmply rmport the Gnevance Settlement Board Junsprudence between the Employer and OPSEU mto tlns dIspute Without havrng regard to the professIOnal status of the members of the bargammg umt. I too must exerCIse cautIOn to ensure that certam pnncIples are not ngIdly applIed, gIVen the profeSSIOnal nature of the workforce m PEGO The partLes were m agreement that cases such as tlns matter are fact based, That IS to say that my task IS to assess whether the gnevor was qualIfied to bump mto the posItIOn of Seruor Engmeer Approvals Branch at the tune he attempted to do so Further, the partIes were agreed that the gnevor and the umon bear the onus of establIshIng that the gnevor was qualIfied to perform the work at hand. After careful consIderatiOn of the facts, I am of the VIew that the gnevance must be allowed, In arnvmg at tills decIsIOn I dId reVIew all of the Junsprudence proVIded, In Re Loebel (supra), Vice ChaIT Venty stated, at page 18 In our VIew, the words "qualrfied to perform the work" must be mterpreted broadly If we are to give any real meanmg to the provIsions of the Article. "Qualified to perform the work" must relate to the reqUIrements of the Job m question. In the mstant Gnevance, qualIfications mclude educatIOnal background, knowledge of the functIOns of the Commuruty Renewal Branch, the Mirustry and government generally- knowledge of all relevant legislatIOn, knowledge of the contents, objectives and ehgibility reqUIrements of all speCIfic programs offered by the Branch, related expenence dealmg With Muruclpal Councils and Muruclpal OffiCials, and good oral and wntten commurucatlOn sla.lls And later at page 21 that Article has been mutually agreed upon by the Parties to benefit surplus employees by affordmg them certaIn preferential nghts of appomtment. Few, If any surplus employees would succeed m movmg successfully from one Mirustry to another If the accepted test were more stnngent than rrummum competence m all of the maJor components of the lOb. Such an mterpretatlOn does not mean that a surplus employee must possess skill and knowledge m all actiVIties asSOCiation With the pOSItion. However, It does mean sla.11s and knowledge of the mam components of the pOSItIOn. (emphaSIS added) In that case, the gnevor was attemptmg to bump mto a pOSItIOn of Cornmumty Renewal 15 Officer With the MimstIy of MumCIpal Affarrs and Housmg. He had been workIng as a ChIld Abuse Program Consultant With the MnustIy of Commumty and SocIal ServIces The Board dIsmIssed the gnevance because the gnevor's "knowledge of the detads of the specIfic programs offered by the Commumty Renewal Branch and the enablmg legIslatIOn appears on the eVIdence to have been less than satIsfactory" Further, the Board found that the gnevance could not succeed because "the eVIdence IS clear that hIs knowledge of the contents, objectIves and elIgibIlIty requIrements of the branch programs was defiCIent and maccurate m many respects" S1Ill1larly, m Re Smith (supra) Vice ChaIT Kaplan applIed the test set out above to a case mvolvmg a gnevor who was attemptIng to bump mto an EnVIronmental Office 5 pOSItIOn of RehabilitatIon Inspector He had been surplused from hIs own pOSItIon of Econoffilst 4 WIth the MmIstry of N orthem Development and Mmes but had occupIed a pOSItIon of Envrronmental T echmcIan for a penod of four years The Board reVIewed the eVIdence and dIsffilssed the gnevance It was stated at page 28 His eVIdence established that while he may have the present abIlIty to perform some of the tasks of the Job, he does not have the present abIlIty to perform the Job at a mmmuun level. He has no farmlIanty With the Minmg Act, and what familIanty he has With the other key legislatIVe enactment, namely the OccupatIOnal Health and Safety Act, does not appear to extend to conditIOns found m mmes The gnevor has no real knowledge about the mme closure plan process, while the eVIdence establIshes that tlus functIOn occupIes approxunately 40% of the mcumbents tune. His knowledge of the mmmg sequence IS scanty at best. In another example, the gnevor does not have the skills and knowledge to conduct a proper mvestIgatIOn. The gnevor may have the abIlIty to perform a few discrete tasks, but tlus does not eqwp lum With the abilIty to do the Job at a mmunallevel. In Re Henderson (supra) the Board agam adopts a sImilar test m determmmg whether the gnevor, who was surplused as a Contracts and Grant AdVIsor, was qualIfied to do the work of a Human RIghts Officer In denymg the gnevance, Vice ChaIT Barrett stated, at page 12 ArtIcle 24.2.3 IS not a Job competitIOn artIcle and It IS clear that surplus employees need only have the mmunal quahficatIons to perform the essentlal duties of the pOSItIOn. Tlus IS clear from the wordmg of artIcle 24.2 3, and the JUTIsprudence of the board, and the memoranda from Management Board of Cab met referred to above. Tlus does not mean, however that a new lower standard of what It means to be qualIfied has been mtroduced mto the collective 16 agreement. ArtIcle 24.2.3 speaks to present quahficatIOns, not those that could be obtamed through extensIve trammg. With extensIve tra1l11llg, an electnclan could become a plumber and a plumber could become an electncIan. NeIther has the present quahficatIOns to perform the other's Job Tra1l11llg of a Human Rights Officer 2 IS done on the Job and lasts from SIX month to one year, but It IS not classroom tra1l11llg. It must be done on the Job and m the context of a huge backlog of cases and very pressmg tune demands on all staff members, both managenal and barga1l11llg umt. In Re The Plummer (supra), ArbItrator Venty stated at page 12 In our View, however, when the partIes use the phrase "quahfied to perform the available work" that phrase must be read broadly The partIes mtended to proVIde a temporal quahficatIOn that employees have the quahficatIOns to perform the work at the tune of a possible lay-off. In our VIew, to exerCIse msplacement nghts under ArtIcle 1007(a), an mdlVldual nurse must be quahfied to fulfill the normal reqUIrement of the Job, but cannot reasonably be expected to fulfill llnmedlately all the dutIes and responsibIlItIes of the Job OtherwIse, It would be extremely dIfficult If not unpossible to bump mto a new or more specIahzed area of practice, thereby dnrumshmg those nghts assocIated With semonty I endorse those comments ArbItrator Stanley m Re Humber (supra) acknowledged that "arbItral junsprudence accords sIgruficant deference to the exerCIse of semonty nghts m a lay-off SItuatIon" He then quoted ArbItrator M. PIcher from Re Norther Telecom Canada Ltd and VA W (1983), 9 L.A,C (3d) 224 wherem he saId at page 229 Canaman arbItrators have conSIstently recogruzed the cntIcal value of semonty nghts to employees. They have acknowledged a general presumptIOn m favour of semonty nghts absent a clear and express restncbon of semonty nghts, a collecbve agreement that confers mmvlduals' nghts based on semonty should be construed so that doubtful language IS mterpreted m a way that preserves and enhances those nghts The oral and documentary eVIdence presented to thIs Board leads me to fmd that the gnevor .IS competent to perform the essentIal elements of the job He IS a hIghly educated profeSSIOnal engmeer WIth conSIderable work expenence That hIs formal engmeenng educatIon was m metallurgy does not, m and of Itself, mean that he IS not quahfied to do work whIch IS normally performed by chermcal or statIonary engmeers } The gnevor conceded that he was not completely knowledgeable about all types of wastewater treatment systems. However, the partIcular systems that he was less famihar WIth fell mto the smallest sectIon of Ms. Cheung's job breakdown, That the gnevor cannot do all 17 of the elements of a posltlOn that he attempts to bump mto wIll not dISqUalIfy hnn from the posI11on, I am of the View that the gnevor and the Dmon dIscharged theIT onus to prove that the gnevor can do the essen11al elements of the posI11on. Further, the Employer relIed on the fact that the gnevor had never been through the CertIficate of Approval process In ItS View, ills faIlure to have partIcIpated m that process meant that he could not possibly be qualIfied to do the work. I must dIsagree If I were to make such a fmdmg, no engmeer who works outSIde of the Approvals Branch could bump mto that office and I cannot belIeve that the partIes mtended such a result when they negonated artIcle 14.5 Indeed, as men110ned earher, there was eVidence that other engmeers had bumped mto the Approvals Branch. Mr Ng saId m ills eVidence that normally the posltlOn of Semor Engmeer was held by an engmeer WIth educatlOn as a CIVIl, chermcal or sta110nary engmeer At the tune he rejected the gnevor, he conSIdered that fact nnportant. Snnply put, I had no eVidence before me that, based on the fact that the gnevor IS a metallurgIcal engmeer, he should be demed the posI11on. Moreover, there IS nothIng on the posI11on specIfica110n that would suggest that one partIcular dlsclplme IS to be preferred over another or than metallurgIsts need not apply Indeed, under qualIfica110ns sec110n It IS stated that the "posI11on reqUITes full membersillp m the ProfesslOnal Engmeers of Ontano (PER)" It was the gnevor's eVidence that he possesses that quahfica11on. If a partIcular dlsclplme was conSIdered essen11al, nnportant or merely preferred for the posI11on of Seruor Engmeers m the Approvals Branch, It would have been a snnple matter to have stated It. It dId not. In my View, the gnevor's expenence WIth MISA IS not lITelevant as was suggested by the Employer He spent eIght years m a posI11on that had, as part of ItS stated purpose, "nnplementatlOn of control programs, and on the resolu11on of wastewater treatment 18 problems" In the attached addendum to the PosItIon DescnptIon for the gnevor's posItIOn of Semor Industnal SpecIalIst WIth MISA, the followmg was stated as the fIrst selectIOn cntena. In-depth knowledge of mdustnal processes and wastewater treatment technology for all mdustnal sectors With specific expertIse m the Iron and steel sector In-depth knowledge of Ontano s Iron and steel sector and current waste water treatment. Techrucal knowledge of envIronmental Issues and fate of cheIDlcals m the enVIronment. In-depth knowledge of the theones, pnncIples and practlces of mdustnal processes, wastewater engmeenng and provmctal and federal envrronmentallegIslatIOn, pohcIes, standards and guldelmes m order to effectively plan, orgarnze, dIrect and control mdustnal envIronmental programs. Keen awareness of pollutlon controVpreventIOn advances, productIOn technology rmprovements and busmess and market trends necessary for rapId comprehensIOn of envIronmental problems and trmely recommendatIOn of potential solutIOns. I am compelled to comment that I found the lack of mvestIgatIOn that was done at the trme of the gnevor's applIcatIOn to bump mto the pOSItIon of Semor Engmeer troublmg. Accordmg to Mr Ng, he dId not speak WIth the gnevor or ills supefVlsor He testIfIed that he dIscussed the gnevor's employment portfolIo WIth the ASSIstant Drrector who IS an expert m wastewater management and they deCIded that he was not qualIfIed. He felt that It was ObVIOUS from the gnevor's employment portfolIo that he was not qualIfIed, He saId that It became clear from a reView of the portfoho that the gnevor would not be able to deal WIth the full range of compleXItIes of apphcatIons WIthout m-depth trammg on the Job Tills was contrasted WIth eVidence regardmg the employee who was dIscussed m the eVidence who had also worked on the MISA project but was allowed to bump mto a pOSItIon WIth the Approvals Branch, In that mstance Mr Ng thought that because of ills expenence WIth wastewater there "rmght be a match" To help WIth those deliberatIOns he spoke WIth that employee's supefVlsor and after that dISCUSSIOn It was deCIded that he could bump mto the Approvals Branch. In my View, that perfunctory reView of the gnevor's portfoho IS not suffICIent m these Clfcumstances. It may be that If an plumber applIed to bump mto an engmeenng pOSItIOn the apphcatIon could be rejected out of hand. However, gIven the gnevor's educatIOn, 19 credentIals, work expenences and Ius semonty, he deserved a more thorough mvestIgatIon. The Employer's fallure to do so rmght be seen to make hght of the bumpmg proVIsIOns of the collectIve agreement. Mr Ng testIfied that he used a standard form m Ius evaluatIon of the gnevor It stated, On revIewmg the posItIOn specificatIon for the surplus person s posItIon and companng tlus InformatIOn WIth the posItIOn speCIficatIOn of the posItIOn, I declare that the surplus person IS not (ll1l111II1ally) quahfied to perform the job for the followmg reasons (a (MajOr/SIgmficant) DutIes and related tasks of the job wluch surplus person not quahfied/able to perform at ll1l111II1ally acceptable level. PosItion reqUITes the skills and knowledge to reVIew a full range of apphcatIOns and create certJ.ficates of approval for mdustnal wastewater The surplus employee does not have the knowledge nor the expenence m tlus area. (b) Skills and expenence lackIng wluch are requITed to ll1l111II1ally perform job Same as a) above ( c) Other concerns/consIderations (state) ego Pendmg llllpact of MOEE Busmess Plan on tlus posItIOn. When Mr Ng was asked wIuch responsibilitIes lIsted m the PosItIon SpecIficatIon he felt that the gnevor could not perform and he answered that "numbers one and two are the most Important ones m my oprmon, Based on the mformatIon m the gnevor's employment portfoho I am of the oprmon that he would not be able to perform dutIes under numbers one or two WIthout m-depth on the Job trammg" There was nothmg m the documentary eVIdence nor was there anythmg m Mr Ng's eVIdence that would mdIcate that he reVIewed the PosItIOn SpeCIficatIon for the posItIon that the gnevor held for eIght years, that IS Semor Sector SpecIahst WIth MISA. Indeed, from the documents and eVIdence before me the only thmg that he conSIdered m tlus regard IS what httle IS set out m the gnevor's employee portfoho Tlus document has an approxnnately three mch by SIX mch box for employees to wnte m what they conSIdered to be therr key Job responsibIhtIes WIth present and preVIOUS pOSItIons. In the gnevor's case, there IS a dearth of mformatIon found therem, It IS dIfficult to rmagme an mformed deCISIOn could be made based on the sparse mformatIon set out m that package Mr Ng saId that he conSIdered what the gnevor had wntten and determmed 20 that Dr Donyma focussed on effluent momtonng and lumts That was what was set out by the gnevor m ills portfoho However, that hardly proVIded Mr Ng WIth sufficIent mformatIOn to make a decIsIon as rmportant as whether the gnevor, an employee wIth consIderable semonty, was quahfied to do the work of a Semor Engmeer m the Approvals Branch, It was conceded by the Umon that Dr Donyma worked on a macro level while he was workIng WIth MISA. However, gIVen Ius eVIdence regardmg ills knowledge and expenence, hIS VarIOUS posItIOn descnptrons and specIfically the posItron descnptron of the Semor Engmeer, I am of the VIew that he IS qualIfied to the essentIal elements of the work. The Umon suggested this Board make a fmdmg that "an engmeer IS an engmeer IS an engIneer" That IS to say that VIrtually any engmeer IS quahfied for and can do all engmeenng work. I cannot make such a fmdmg. Indeed, this deCISIOn IS not to be construed as a fmdmg that specIahty and dIscIplme are not rmportant consIderatrons m dIsplacement matters There may well be tunes when a metallurgIcal engmeer IS not quahfied to perform work normally performed by CIVIl and chenncal engmeers However, m the mstant matter, the gnevor has educatIOn and expenence that leads to the meVItable conclUSIOn that he IS quahfied to do the work at Issue Tills case has been deCIded based on the pecuhar facts For all of those reasons, the gnevance IS upheld. The gnevor IS to be placed m the pOSItron of Semor Engmeer m the Approvals Branch WIth full compensatron and semonty lost as a result ofbemg demed the pOSItron. I will remam seIZed m the event that there are dIfficultres rmplementmg this deCISIOn. ( Dated m Toronto, this 9th day of June, 1998 7:[ dt~5r F ehclty D Bnggs - Vice CmuT