HomeMy WebLinkAbout1997-0007.Jackson.99-11-01 Decision
o NTARlO EMPUJYES DE LA COURONNE
CROW"! EMPLOYEES DE L 'ONTARlO
GRIEVANCE COMMISSION DE
-- SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONE/TELEPHONE, (416) 326-1388
180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396
GSB # 0007/97
OPSEU # 97B378
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Jackson)
Grievor
- and -
The Crown m RIght of Ontano
(Mimsm of Transportation)
Employer
BEFORE Ranch Hammer Abramsk" Vice ChaIr
FOR THE DIane Roberts
GRIEVOR Counsel, Ryder, Wnght, BlaIr & Doyle
Bamsters & SolICItors
FOR THE Len M~
EMPLOYER Counsel, Legal ServIces Branch
Management Board SecretarIat
HEARING September 9 1999
AWARD
The gnevance alleges that the gnevor Ruth Jackson, was Improperly surplused from her
pOSITIOn as an EnVIronmental Planner - Rentage m vIOlaTIon of the collecTIve agreement. The
Umon asserts that Ms. Jackson had a nght, pursuant to ArtIcle 2041 of the collecTIve
agreement, to displace a more Jumor employee m the pOSITIOn of EnVIronmental Planner
(GeneralIst)
ArtIcle 20 4 1 m pertlnent part, states that:
(a) The Employer will IdenTIfY the employee Wlth the least semonty m the same
classIficaTIon and the same mInIStry as the employee's surplus pOSITIOn. If such
an employee has less senIonty than the surplus employee, he or 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.
There IS no dIspute that Ms. Jackson had more semonty than the employee m the
EnVIronmental Planner (GeneralIst) pOSITIOn or that thIs pOSITIOn was Wlthm forty kilometres of
Ms Jackson's headquarters. The partIes' dIspute centres on whether Ms Jackson was
"qualIfied to perform the work" of the EnVIronmental Planner (GeneralIst) at the TIme of her
surplussmg.
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After the first day of heanng wmch consIsted of the tesTImony of the gnevor the Umon
decIded not to call further eVIdence The Employer then moved for a non-sUIt.
FACTS
Ms. Jackson worked for the MinIstry of TransportaTIon as an EnvIronmental Planner-
Histoncal from July 24 1989 until she was surplused from that pOSITIOn m January 1997 At the
TIme of her surplus, she was offered a dIsplacement opportunIty under Artlcle 204 l(b) as an
AssIstant PolIcy AdVISor m FreIght TransportaTIon whIch she declIned. She was not offered a
displacement opportumty to the posItIOn of EnvIronmental Planner (GeneralIst) and m December
1996 she gneved that she had been Improperly surplused under the colleCTIve agreement.
For all mghway projects, the Mimstry of TransportaTIon IS oblIgated by statute to
proVIde an envIronmental assessment. That assessment mcludes, among other thmgs, an
analysIs of the Impact of a project on ground water waste management, nOIse, wild-lIfe,
landscapmg, fishenes, soil eroSIOn, alr qualIty communIty and recreaTIon, archeology as well as
hentage and mstoncal buildings. The pOSITIOn held by the gnevor EnVIronmental Planner-
Histoncal, proVIded the hentage and hIstoncal component of the enVIronmental assessment.
SpeCIfically the gnevor's pnmary role was to proVIde hentage/h1stoncal analYSIS,
assessment and recommendatIOns to the EnVIronmental Planner (GeneralIst) and Project
Manager Other enVIronmental specIalIsts, or outSIde consultants, would proVIde an assessment
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of the other components of the envIronmental assessment to the EnVIronmental Planner
(GeneralIst) who would then draft an overall report.
The pOSITIOn specIficaTIon for the EnVIronmental Planner-Histoncal pOSITIOn mdicates
that the "[p ]urpose of posItIOn" IS "to coordinate and ensure that the mstoncal component
(cultural and archItectural) of Central RegIOn Program delIvery products meets the reqUIrements
of the Ontano Rentage Act and the EnVIronmental Assessment Act, and conforms to Mimstry
polICIes and procedures" Ms Jackson acknowledged, and the "dutIes and related tasks"
seCTIon of the pOSITIOn speCIficatIOn demonstrates, that the pOSITIOn deals almost exclUSIvely WIth
mstoncal Issues and the mstoncal component of envIronmental planmng. The "[ s ]kills and
knowledge reqUIred to perform [the] Job at full workmg level. " are "expenence m hentage
planmng" a "[w]orkmg knowledge of the Ontarlo Rentage Act, the EnVIronmental Assessment
Act, other related legIslatIOn and M.T 0 envIronmental polICIes and procedures" as well as
"[g]ood verbal and wntten skills and demonstrated orgamzaTIonal and supervISOry skills."
The gnevor's background and expenence were well-SUIted to thIs pOSItIOn. Pnor to
JOImng the Mimstry Ms. Jackson worked as Rentage Coordinator for East GWlllImbury for
three years on a part-TIme baSIS. In that pOSItIOn, she revIewed and evaluated plamng and
building requests pertaImng to hentage propertles and archaeological potentIal, researched and
prepared mstoncal deSIgnaTIOn reports and recommendatIOns and presented them to the
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Planmng CommIttee and CouncIl, and orgamzed the actlVlTIeS and budget of the LACAC (Local
ArchItectural ConservatIOn AdvIsory CommIttee)
Prom both her pOSITIOn WIth the Mimstry and as Rentage Coordinator for East
Gwilhmbury Ms. Jackson learned about envIronmental planmng generally to coordinate, and
deal WIth the pubhc and consultants, read envIronmental planmng reports, and work under
pressure At the hearmg, she appeared to be an mtelhgent, mOTIvated and ImpreSSIve mdivIdual.
She has no formal degree or trmmng m envIronmental studies.
In contrast to the EnvIronmental Planner-Histoncal pOSITIOn, the EnvIronmental Planner
(GeneralIst) mvolves the whole range of envIronmental assessment components. The "purpose
of pOSITIOn" as set forth m the pOSItIOn speCIficaTIon, states as follows
To proVIde profeSSIOnal envIronmental planmng, technIcal, project management,
and momtonng servIces and expertIse to ensure that the overall envIronmental
component of transportaTIon planmng, deSIgn, construCTIon and mamtenance
projects conform With and meet the mtent of all technIcal, procedural,
admImstraTIVe and consultatIve aspects of federal, provmcIal and mumcIpal
envIronmental legislaTIon, regulatIOns, pohcIes, procedures, and objeCTIves. To
proVIde techmcal support to proj ect managers of transportatIOn plannmg
projects. To proVIde mput to/ technIcal support for strategic hIghway planmng
and regional partlcIpaTIOn m mumcIpal planmng Issues.
The pOSITIOn speCIficaTIon further states that 55% of the "[d]utles and related tasks"
mvolve the follOWing:
ProVIde coordinaTIon of the overall enVIronmental component of planmng,
engIneenng, constructIOn and mmntenance proj ects by
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- assessmg transportaTIon projects, detenmmng the scope and detaIled
reqUIrements, and nsks of the overall project envIronmental work;
- provIding the enVIronmental mput to selectlon of project delIvery method, and
provIding the envIronmental component of project consultant acqUISItIOn
management, and evaluaTIon.
- co-ordinatmg the project mput ofMTO specIalIst enVIronmental staff
- ensunng that 'proponent' responsibilITIes under federal and proVISIonal
envIronmentallegIslatlon and polIcy are met
- ensunng that all proJ ect enVIronmental technIcal aspects are performed whIch
may mclude determme enVIronmental conditlons, conduct enVIronmental
component of reroute selecTIon, conduct the enVIronmental component of
overall facilIty deSIgn, develop an enVIronmental deSIgn plan for the preferred
project alternaTIve; conduct the envIronmental component of the development of
the facilIty deSIgn approach, develop an enVIronmental constructlon plan for the
preferred facilIty construCTIon approach, conduct/prepare post-constructIOn
envIronmental field work/reports.
- ensunng that all project enVIronmental process aspects are performed wmch
may mclude federal, provmcIal and mImstry EA process, publIc consultaTIon,
obtaImng formal envIronmental approvals, permIts and exempTIons.
Accordmg to the Job speCIficatIOn, twenty-five (25) percent of the Job reqUIres the
EnVIronmental Planner (GeneralIst) to "proVIde advanced technIcal adVIce m the area of
enVIronmental assessment process, provIde an overall perspecTIve of the reqUIrements and
mteractlon of the WIde range of federal and provmcIal enVIronmental legislaTIon, polIcy and
approvals; represent the mImstry m negoTIaTIons With external agenCIes, at publIc meeTIngs and at
formal mformaTIon centres." Fifteen (15) percent of the Job IS proVIding "techmcal support to
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project managers of transportatIOn plannmg projects, provId[ing] mput to/techmcal support for
strategic mghway plannmg and to regional partlcIpation m mumcIpal planmng Issues."
The "[s]kills and knowledge reqUIred to perform Job at full workmg level. " are, m part,
as follows
Detailed knowledge of current pnncIples and practIces for envIronmental
assessment and protectIOn. W orkmg knowledge of planmng, deSIgn and
construction practices. Proven expenence m the applIcation of the Wide range
of enVIronmental factors and diSCIplInes assocIated With transpIration planmng,
deSIgn, construction and mamtenance undertakings, and of the Wide range of
federal and provmcIal envIronmental legislation and polIcy that typIcally apply to
such undertakings.
Demonstrated expenence m the mteractlon of enVIronmental diSCIplInes and
reqUIrements, and the mteraction between enVIronmental and transportation
reqUIrements.
IrutiatIve, good Judgment, diplomacy Excellent mterpersonal, negotiation,
orgamzatIOn, presentation and commumcation skills (both oral and wntten) are
essential AbilIty to work m a dynamIC and sometimes pressured work
enVIronment, and to work to tight schedules/deadlInes. Demonstrated
expenence m working effectlvely m PUbIC seSSIOns/meetings, mduding those
wmch deal WIth controversIal Issues and the publIc reactIOns that are assocIated
With such Issues.
AnalytIcal, problem-solvmg, and organIzational skills to plan, conduct and
report/recommend on multifaceted, complex aSSIgnments With mImmal
supervIsIon. ProVIde abilIty to wnte reports and bnefing matenals.
BegInnmg m 1995 the gnevor was asked and encouraged by her supervISors to act as
the EnVIronmental Planner on a number of projects to broaden her skills and cross-tram. She
accepted only one such aSSIgnment m lIght of her eXlstmg workload. The proJ ect was a
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relanvely small one mvolvmg the mstoncal lIght fixtures on a portlon of the Queen Ehzabeth
Way It did not mvolve a full array of envIronmental Issues.
In her tesnmony both dunng exammanon-m-cmef and cross-exammanon, Ms. Jackson
acknowledged that she could not "provIde advanced technIcal adVIce" m the areas of
envIronmental assessment except for the hentage component, but could acqUIre It on the Job In
her VIew that expertIse could be "easily acqUIred" though not m a day or two but m under SIX
months for someone WIth above-average mtelhgence She felt that she had "general knowledge"
but not "detailed knowledge" of current pnncIples and pracnces for enVIronmental assessment
and protecnon and that such detailed knowledge could be acqUIred dunng the first few months
on the Job She acknowledged that to be at "full workmg level" m such areas as soIl eroSIOn,
wild-hfe and waste management would reqUIre a "penod of trmmng" Just "like any other EP
hIred would." She acknowledged that the thmgs that she needed to learn are an essentIal part
of the Job although she stated that "they're the specIfics, the functlons of the Job (coordinanng,
wnnng, dealmg WIth people)" she could handle. She agreed, however that to perform the
pnmary funcnon of the EnVIronmental Planner Job she would need to know the full range of
enVIronmental factors. She tesnfied that the EnVIronmental Planner IS not an expert but a
generahst, but acknowledged that when there was no envIronmental specIahst or outsIde
consultant available for adVIce, the assessment would have to be done by the EnVIronmental
Planner In those sItuanons, the substantIve area would have to be "learned pretty fast."
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Positions of the Parties
The Employer has moved to non-SUIt the gnevance, assertmg that the Umon failed to
establIsh a prima facie case that the gnevor was "qualIfied to perform the work" of an
EnvIronmental Planner (GeneralIst) at the TIme of her surplussmg WithIn the meamng of ArtIcle
2041 In the Employer's submIssIOn, based on the eVIdence presented, the gnevance must be
dismIssed.
In support of ItS contentIOns, the Employer relIes on the GSB case law mterpreTIng the
words "qualIfied to perform the work" as set m OPSEU (Loebel) v The Crown (MinistlY of
Municipal Affairs and Housing) GSB No 331/82 (Venty 1983) OPSEU (Smith) and
The Crown (Ministry of Northern Development and Mines) GSB No 1625/93 (Kaplan,
1995) OPSEU (Ryce) and The Crown (St. Lawrence Parks Commission) GSB No
665/96 (SImmons, 1997) In ItS VIew the gnevor's need for trammg to perform the pOSITIOn of
EnVIronmental Planner (GeneralIst) means that she did not have the "present abIlIty" to perform
the core funCTIons of the Job Accordingly m ItS submISSIon, the gnevor had no nght to displace
the mcumbent m that pOSITIOn under ArtIcle 20 4 1
The Umon submIts that It has met the threshold of a prima facie case and that It has
establIshed eVIdence that Ms. Jackson was qualIfied to perform the work of an EnVIronmental
Planner at the mImmum level of competence. In ItS VIew the trmmng acknowledged by Ms.
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Jackson was needed to reach the "full workmg level" not the mInImUm level reqUIred under
ArtIcle 20 4 1
In support of Its contenTIons, the Umon relIes on OPSEU (Loebel) v The Crown
(Ministry of Municipal Affairs and Housing) supra. In Its vIew the gnevor's admIssIon to
the need for trmmng m order to work at the "full workmg level" does not JUSTIfy dIsmIssmg her
gnevance on a prima facie baSIS.
In reply the Employer submIts that the gnevor's tesTImony regarding the need for
trmmng was m relaTIon to her "present abilIty" to perform the Job and that the term "full
workmg level" m the context of Ms. Jackson's tesTImony should be read as "present abIlIty "
Further, It submIts that the words "full workmg level" are only used m the pOSITIOn specIficaTIon
m relatIOn to "skills and knowledge" not m relaTIon to "duTIes and related tasks." The Employer
contends that the eVIdence was clear that she would need trammg to proVIde "advanced
techmcal adVIse" m areas other than hentage
DECISION
In thIS case, the Issue IS whether or not the umon has establIshed some eVIdence that the
gnevor was qualIfied to perform the work of an EnVIronmental Planner (GeneralIst) at a
mInImUm level of competence. With a non-SUIt, as long as there IS some eVIdence to support the
necessary elements of the case, the mOTIon should be denIed.
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Under ArtIcle 20 4 1 the gnevor IS enTItled to displace a less semor EnVIronmental
Planner (GeneralIst) provIded that she IS "qualIfied to perform the work" of such employee
The GSB Junsprudence cIted by the partIes clearly mdIcates that m order to exerCIse
displacement nghts, an employee must have "demonstrated the necessary skills and knowledge
to perform at a mImmallevel of competence all of the functlons of the pOSITIOn." OPSEU
(Loebel) and Ministry of Municipal Affairs and Housing supra at p 20 The Board m
Loebel contmued at pp 21-22
To determme If a surplus employee IS qualIfied to perform the work pursuant to
ArtIcle 24.2.3 [now ArtIcle 20 4 1], the Board accepts Management's
argument of "present abilIty" to the extent of mInImUm competence m all
components of the Job reqUIrements. To adopt any hIgher test of present abilIty
would be to destroy the sIgnIficant of ArtIcle 24.2.3 That ArtIcle has been
mutually agreed upon by the PartIes to benefit surplus employees by affording
them certam preferenTIal nghts of appomtment. Few If any surplus employees
would succeed m movmg successfully from one MinIstry to another If the
accepted test were more stnngent than mInImUm competence mall 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.
The Loebel case also held that there was "no proVIsIon m the language of ArtIcle 254.2.3 [now
ArtIcle 204 1] for a trammg penod, or tnal penod or familIanzaTIon penod." (Loebel, supra at
p 18) The standards set forth m Loebel have been followed by the GSB See OPSEU
(Smith) and MinistlY of Northern Development & Mines, supra, OPSEU (Bouchard) and
Ministry of Environment and Energy supra.
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GIven the mohon for non-sUIt m thIs case, the Issue IS whether there IS some eVIdence
that the gnevor at the hme of her surplus, possessed the present skill and knowledge to perform
the mam components of the Job at a mImmum level of competence. In my VIew there IS some
eVIdence that the gnevor could perform some components of the Job at a mmImum level of
competence But there was no eVIdence that she had the present abilIty WIthout trammg, to
perform a sIgmficant number of the mam components of the Job
A sIgmficant portIOn of the Job of EnvIronmental Planner(GeneralIst) - 25% - IS to
provIde "advanced technIcal advIce m the area of envIronmental assessment process." Ms.
Jackson did not have the expenence or background to perform tills task m any area other than
hentage Undoubtedly With hme, she could acqUIre the necessary expertIse. But she did not,
at the hme of surplus, have the present abilIty to perform thIs functIon
Further although she had a general knowledge of the areas of envIronmental assessment
other than hentage, she dId not have the expertIse or the detailed knowledge needed to perform
the Job In her VIew there was no real need for expertIse smce the Job was pnmarily one of
coordmahng the specIalIsts' or consultants' reports and she knew how and where to access the
necessary mformahon. In her VIew expertIse m envIronmental plannmg was necessary at the
"full workmg level" and could be acqUIred dunng the first few months on the Job Although she
would need to learn the "specIfics" she felt that she could do the Job because she had general
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knowledge and the abilIty to coordinate, deal With people, wnte reports, and work under
pressure Based on my reVIew of the posItIOn specIficatIOn, however I cannot agree The
pOSITIOn reqUIres sIgmficantly more expertIse m enVIronmental planmng than the gnevor
possessed.
The purpose of the Job IS to provIde "professIOnal envIronmental plannmg, techmcal,
proJect management, and momtonng servIces and expertIse to ensure that the overall
envIronmental component of transportaTIon plannmg, desIgn, constructIon and mamtenance
proJects' meet federal, provmcIal and mumcIpal envIronmental reqUIrements and obJecTIves."
The EnvIronmental Planner (GeneralIst) IS responsible for the full range of transportaTIon
proJects, from small ones to maJor new hIghways. The Job also mvolves "provId[ing] technIcal
support to proJect managers of transportatIOn planmng proJects." There IS clearly a basIc level
of expertIse and techmcal knowledge reqUIred to coordmate the overall envIronmental
assessment component, to determme what IS needed and to momtor and assess what has been
done as well as to provIde techmcal advIce. EnvIronmental Planners cannot sImply rely on the
specIalIsts, consultants or anyone else They must know at least at a mmImum level, the
"specIfics." Unfortunately at the TIme of surplus, the gnevor lacked the reqUIred level of
knowledge and expertIse m the Wide range of envIronmental factors and dIscIplInes needed to
perform the pOSITIOn at a mImmum level of competence.
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Because of the gnevor's mtellIgence and expenence, I belIeve that, m TIme, she could
have learned what was needed to be an EnvIronmental Planner (GeneralIst) But, as noted m
Loebel, supra, and more recently m Bouchard, supra, there IS no traImng or familIanzaTIon
penod m a dIsplacement sItuaTIOn. To dIsplace an mcumbent, the surplused employee must
have the "present abilIty" to perform all of the maJor components of the Job at a mImmallevel of
competence. In tills case, there was no eVIdence that the gnevor had the present abilIty to
perform, at a mImmallevel, some maJor components of the Job Accordmgly the mOTIon for
non-sUIt must be granted and the gnevance IS dismIssed.
Dated at Toronto, thIS 1st day of November 1999
fI, r4brn){[j(
RandI Hammer Abramsky Vice-ChaIr
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