HomeMy WebLinkAbout1998-1587.Bouchard.04-07-16 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~-,...
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tel. (416) 326-1388
Fax (416) 326-1396 Telec. (416) 326-1396
GSB# 1998-1587
UNION# 99C021
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OntaTIo PublIc ServIce Employees Umon
(Bouchard) Grievor
- and -
The Crown In RIght of OntaTIo
(Mimstry of the EnvIronment) Employer
BEFORE Richard Brown Vice-Chair
FOR THE UNION Ed Holmes
Ryder WTIght, Blair & Doyle
BarrIsters and SOlICItorS
FOR THE EMPLOYER Len HatzIs
Counsel
Management Board SecretaTIat
HEARING July 7 & 23 and December 9 & 19 2003
March 31 and June 23 2004
2
DeCISIon
MIchel Bouchard gneved the mInIstry's refusal to recall hIm from layoff to fill a
vacancy In the posItIOn of E04 abatement officer The employer contends he was
not quahfied to perfonn tlus work.
Mr Bouchard was employed by the MInIStry of the EnVIronment as an air
quahty technIcian In Cornwall from 1979 untIl 1997, classIfied as an
envIronInental officer 4 (E04) After reCeIVIng a surplus notIce In January of 1997,
he was offered employment as a senIor envIronmental officer at the SpIlls ActIOn
Centre (SAC) In Toronto, also an E04 Job, and he declIned thIS offer He was laid
off In July of 1997 The Instant gnevance relates to a vacancy In the posItIOn of
E04 abatement officer whIch was posted on November 20, 1998 and filled In Apnl
of 1999 Mr Bouchard's recall nghts dId not expIre untIl July of 1999 and he
contends the employer should have recalled hnn to fill tlus vacancy
I
The backdrop for the current dIspute IS provIded by two decIsIOns of tlus board.
one deahng wIth tlus gnevance and the other wIth an earher but related gnevance
The first gnevance by Mr Bouchard claimed he should have been allowed
to dIsplace a JUnIor employee In Cornwall workIng as an E04 abatement officer,
rather than beIng laid off In the first place In Ontarzo Publzc Servlce Employees'
Unzon (Bouchard) and Mlnzstry of EnVlronment and Energy, dated September 9,
1999, GSB FIle No 0055/97, I dIsmIssed thIS gnevance, because the gnevor
lacked the quahficatIOns to work as an abatement officer at the E04 level
DescribIng that Job and the employer's assessment of the gnevor, I wrote
The posItIOn specIficatIOn for an E04 abatement officer IdentIfies four
categones of dutIes, wIth a genenc descnptIOn for each category whIch IS
3
followed by a detailed hst of tasks The general descnptIOn for each category
and the percentage of tnne spent on the related dutIes are as follows
1 Under the mInnnal superVISIOn of the superVIsor, IdentIfy complex
problems and solutIOns, provIde consultatIve advIce to a wIde
vanety of contacts, and assIst In the management of complex
Issues (25%),
2 Inspect and mOnItor water supphes and sources of pollutIOn
IncludIng spIlls for comphance wIth envIronmental legIslatIOn
(35%),
3 IdentIfy and report on water supphes and a wIde vanety of sources
of pollutIOn (envIronInental contamInants) and recommend and
Implement abatement programs under mInImal dIrectIOn at
Industnal, mUnIcIpal, agncultural, commercIal and pnvate sources
(25%), and
4 Perfonn other related dutIes (15%)
The posItIOn specIficatIOn contaIns the folloWIng descnptIOn of the reqUIred
skIlls and knowledge
SIgnIficant relevant expenence In the envIronmental field wIth an
extensIve knowledge of the prIncIpals and practIces of Industnal and
mUnIcIpal envIronmental control, water supply systems, pollutIOn
abatement, and land use plannIng practIces, and extensIve knowledge
of apphcable envIronmental legIslatIOn and MInIstry pohcIes and
procedures IS reqUIred, knowledge of Industnal processes, mUnIcIpal
water supply systems, sewage systems and waste management, vahd
dnver's hcense (G2 level or above), an abIhty to relate theones and
prIncIples to practIcal expenence IS reqUIred In resolvIng sensItIve,
complex or contentIOus problems, well developed oral and wntten
commUnICatIOn skIlls to provIde InfOrmatIOn and technIcal advIce,
workIng knowledge of software apphcatIOns and data entry skIlls as
they apply to the Job, skIlled In technIcal report wntIng, samphng and
InterpretatIOn of results
The determInatIOn that the gnevor was not quahfied to be an
abatement officer was made by Robert Shaw Before becomIng dIrector of
the mInIstry's central regIOn In February of 1998, Mr Shaw served a three-
year secondment In the office of the deputy mInIster where he co-ordInated
two phases of down SIZIng, one In 1995 and the other In 1997 BegInnIng In
4
1975, he held vanous posItIOns In the technIcal support sectIOn of the central
regIOn, IncludIng sectIOn manager Mr Shaw testIfied he has dealt wIth
abatement officers dunng most of hIS career
In January of 1997, Mr Shaw completed a form statIng why he had
determIned the gnevor was not mInImally quahfied for the contested Job
Under the headIng "DutIes and related tasks of Job whIch surplus person not
quahfied/able to perfonn," Mr Shaw wrote
. IdentIficatIOn and resolutIOn of complex abatement Issues,
. InSpectIOn and mOnItonng of facIlItIes (sewage parks/water
works/waste dIsposal sItes/Industnal dIscharges)
The folloWIng entry appears on the fonn under the headIng "SkIlls and
expenence lackIng"
. extensIve knowledge of Industnal and mUnIcIpal envIronmental
controls, water supply systems, pollutIOn abatement processes,
. extensIve knowledge of apphcable envIronmental legIslatIOn,
mInIstry pohcIes and procedures (e g comphance pohcy, dehvery
strategIes)
Mr Shaw testIfied the pnmary role of an abatement officer IS to
determIne whether a vIOlatIOn has occurred and, If so, to decIde what actIOn
IS reqUIred to achIeve comphance To perform tlus role, one must know the
processes utIhzed at pollutIOn sources, the apphcable legIslatIOn, and the
mInIstry's comphance pohcy and dehvery strategIes The comphance pohcy
IS a genenc procedure utIhzed to achIeve voluntary or mandatory
comphance AccordIng to Mr Shaw, an air quahty technIcian IS not reqUIred
to detennIne whether a vIOlatIOn has occurred or how to abate one, and such
an employee does not reqUIre the same knowledge as an abatement officer,
wIth the exceptIOn of the dehvery strategy for air pollutIOn (pages 2 to 4)
The unIon's pnmary argument was that Mr Bouchard met the test of
"present abIhty" expounded In OPSEU (Loebel) andMlnzstry ofMunzclpal Alfazrs
and Houszng, dated Feb 15,1983, GSB No 331/82 (Venty) ReVIeWIng the
eVIdence relatIng to the gnevor's quahficatIOns, I wrote
In January of 1997, dId Mr Bouchard have the "present abIhty" to work as
an E04 abatement officer? HIS expenence as an air quahty technIcian,
standIng alone, dId not quahfy hIm for the Job he seeks ThIS expenence
5
would be useful to an abatement officer but would not be sufficIent In
perfonnIng the dutIes of an air quahty technIcian, the gnevor supported
abatement actIvItIes by provIdIng mOnItonng data, but he was not dIrectly
Involved In detennInIng whether vIOlatIOns eXIsted or In abatIng them
Moreover, he dId not acqUIre a sufficIent understandIng of eIther the full
range of Industnal and mUnIcIpal processes overseen by abatement officers
or the legIslatIOn they apply
UnIon counsel contends any deficIencIes were remedIed In five ways
The first IS Mr Bouchard's work at Courtaulds and Domtar ThIS expenence
gave hIm a good grasp of process control, IncludIng the process element of
pollutIOn control, In two Industnes What he learned may have some
apphcatIOn to other Industnal or mUnIcIpal enterpnses, but It falls short of
gIVIng hnn an adequate understandIng of all types of regulated actIvItIes
The gnevor's InabIhty to name the then apphcable legIslatIOn, and hIS lack
of knowledge about the envIronInental groups at these two companIes,
suggest he gaIned httle, If any, understandIng of envIronmental legIslatIOn
from these Jobs
WhIle In the employ of the MInIStry, Mr Bouchard took courses on
spIlls, envIronmental law In general, and the Envlronmental Blll of Rlghts In
partIcular HIS answers to questIOns on these subJects suggest he has not
retaIned much of what he learned. As the maJonty of these courses were
taken between five and nIne years before he was laid off, It IS reasonable to
conclude most of thIS loss of knowledge occurred before the layoff, rather
than In the two years SInce I note also the gnevor has not completed the full
range of 100 level courses whIch abatement officers are reqUIred to take,
IncludIng courses dealIng wIth such matters as sewage plants and water
treatment
The gnevor's testImony about "helpIng out" or "gOIng along" on spIll
responses and InSpectIOns IndIcates he played only a secondary role on these
occaSIOns, perhaps as an observer ThIS conclusIOn IS buttressed by Ius
InabIhty to dIStIngUISh between the treatment processes used at sewage
works In Cornwall and Hawkesbury where he attended InSpectIOns In
addItIon, the nature and extent of Ius Involvement In abatement actIvItIes
was not sIgnIficant enough for hIm to mentIOn It In the proJectIOn of future
work prepared In 1991, In the reVIew of past work prepared In 1992, In the
Job exchange proposal--specIfically relatIng to abatement work--prepared In
1996, or In the employee portfoho prepared In 1997 ThIS work also was not
mentIOned In any of nIne employee appraisals and, wIth very mInor
exceptIOn, was not known to Messrs Helhar or Elhott The combIned effect
of all of thIS eVIdence IS to suggest the gnevor's Involvement In abatement
work was not sIgnIficant
6
As to the gnevor's Involvement In CASWG, the eVIdence IndIcates
Ius pnmary role was In provIdIng technIcal support and that he had httle
dIrect Involvement In abatement actIvItIes There IS no eVIdence as to the
substance of Ius day-to-day InteractIOn wIth abatement staff In the office
space he shared wIth them
The foregoIng analysIs leads me to conclude Mr Bouchard dId not
have the reqUIred understandIng of Industnal and mUnIcIpal enterpnse and
of envIronmental law and procedure In the words of Loebel, he lacked the
"present abIhty" to functIOn as an E04 abatement officer (pages 14 to 16)
The unIon's alternatIve argument sought to carve out an exceptIOn to the
present abIhty test AccordIng to thIS argument, Mr Bouchard should have been
allowed to dIsplace a JUnIor employee workIng as an E04 abatement officer,
because the gnevor would have been quahfied to do tlus work If he was gIven the
traInIng offered to employees appoInted to fill vacanCIes I ruled there was no such
exceptIOn In the context of a dIsplacement
There IS a compelhng ratIOnale for recognIZIng an exceptIOn to the present
abIhty test In the context of a vacancy In a posItIOn for whIch traInIng IS
mandatory When a posItIOn IS vacant, whoever IS appoInted to fill It would
have to be traIned. A surplus employee IS no dIfferent than anyone else In
tlus respect It would be absurd for the employer to argue the surplus
employee IS unquahfied because he or she lacks traInIng whIch every other
candIdate also lacks, because no-one would be quahfied accordIng to tlus
argument ThIS absurdIty probably explaIns the conceSSIOn made by
management In Hlll and Campbell [OPSEU (Hlll and Campbell) and
Mlnzstry o.fLabour, dated Oct 12,1984, GSB No 492/83 (Roberts)]
When there IS no vacancy, the sItuatIOn IS dIfferent As the Incumbent
has completed the mandatory traInIng, there IS no need to traIn anyone,
unless the Incumbent IS dIsplaced by the surplus employee In the context of
a dIsplacement, It IS not absurd for the employer to argue the surplus
employee IS unquahfied because he or she reqUIres traInIng whIch the
Incumbent already has In other words, the same ratIOnale does not eXIst for
a departure from the normal standard of "present abIhty" set out In Loebel
ThIS standard was estabhshed at least fifteen years ago and has not
been changed In collectIve bargaInIng In the IntervenIng years In the
absence of some absurdIty, an arbItrator has no authonty to modIfy a long-
estabhshed nlle whIch the partIes to the collectIve agreement have seen fit
not to alter In succeSSIve rounds of negotIatIOns AccordIngly, I am bound to
apply the ruhng In Loebel to the gnevance at hand. (pages 19 and 20)
7
II
The second gnevance relates to the vacancy posted In late 1998 and filled In early
1999 When the heanng of the second gnevance began, the employer contended It
was barred by the doctnne of Issue estoppel The UnIon dIsagreed, submIttIng the
two gnevances posed dIfferent questIOns In a decIsIOn dated October 30, 2002, I
ruled these two questIOns mIght well dIffer
There IS an Important exceptIOn to the general rule that the "present abIhty"
test IS utIhzed to assess quahficatIOns In Hlll and Campbell, the employer
conceded thIS test dId not apply to a vacancy for whIch any successful
candIdate would have to be traIned. In my decIsIOn on the first gnevance, I
explaIned why such an exceptIOn was warranted when a surplus employee
claims a vacancy but not when such a person seeks to dIsplace someone else
In short, where traInIng for a posItIOn IS mandatory, the present abIhty
test apphes to dIsplacement of a JUnIor employee but not to filhng vacanCIes
In other words, where there IS mandatory traInIng, the questIOn anSIng from
a dIsplacement gnevance IS dIfferent than the one anSIng from a gnevance
about recall
The questIOn posed by Mr Bouchard's recall gnevance would be
dIfferent than the one posed by Ius ear her dIsplacement gnevance If there
was mandatory traInIng for the posItIOn of abatement officer E04 at the
relevant tnne The two questIOns would be the same If there was not
mandatory traInIng (pages 10 to 12)
III
The exceptIOn to the present abIhty test IdentIfied In my Intenm decIsIOn rests
upon the notIon of equal treatment If vacanCIes tYPIcally are filled by employees
who receIve further traInIng to be fully quahfied to do the Job, but a candIdate for a
partIcular vacancy IS reJected merely because he or she lacks the skIll or
knowledge that very traInIng would provIde, thIS IndIVIdual has been denIed equal
treatment
8
An employer's obhgatIOn to afford equal treatment to all candIdates for aJob
was recognIzed In Ontarzo Hydro and Canadzan Unzon of Publzc Employees
(1996),62 L.A.C (4th) 421 (M. PIcher) AlloWIng a gnevance relatIng to the fihng
of a vacancy, ArbItrator PIcher wrote
In our VIew, by ultImately applYIng the test of whether the final group of
candIdates could, by vIrtue of theIr expenence and abIhtIes, reasonably
perform the Job wItlun a penod of SIX months [after beIng appoInted to It],
and failIng to apply that same standard to other candIdates, IncludIng the
gnevors, the CorporatIOn's selectors unwIttIngly apphed a dISCnmInatory
standard In our VIew, It must be taken as ImphcIt by the terms of the
collectIve agreement that all candIdates for a vacancy are to be consIdered In
accordance wIth the same standards and that, as among candIdates
consIdered quahfied for the posItIOn, the senIor candIdates are to be selected.
(pages 435 and 436)
Other decIsIOns reqUInng equal treatment of all candIdates for a Job are cIted In
Brown and Beatty, Canadzan Labour Arbltratzon, at 6 3300
In my prevIOus ruhng, I cast the exceptIOn to the present abIhty test as
relatIng to mandatory traInIng I borrowed the term "mandatory" from Hlll and
Campbell However, the notIon of equal treatment dIctates that a candIdate for a
Job be offered any sort of traInIng tYPIcally taken by newly appoInted employees,
regardless of whether they are compelled to take a partIcular course
AccordIngly, the remaInIng Issues In tlus case are two-fold. (1) were
vacanCIes In the posItIOn of E04 abatement officer at the relevant tnne tYPIcally
filled by employees who receIved further traInIng to be fully quahfied to do the
Job, and (2) If so, would Mr Bouchard have been quahfied Ifhe had receIved the
sort of traInIng offered to others?
IV
9
The employer called two wItnesses to testIfy about mInIstry courses for abatement
officers Brock Paterson has been employed by the mInIstry as a learnIng
consultant SInce 1988 Robert Helhar was abatement superVIsor In Cornwall from
1985 to 1995 and dIstnct manager there from 1995 to 1997 From 1997 to 2000, as
a superVIsor reportIng to the regIOnal dIrector In KIngston, he supervIsed E05' s
assIstIng abatement officers wIth dIfficult problems
Mr Helhar's testImony at the first heanng IS summanzed In the first
decIsIOn
[N]ew abatement officers take a number of mInIstry courses and work
under the watchful eye of those wIth more expenence Some officers start
dOIng abatement work at the E02 level, others at the E03 level and stIll
others at the E04 level Whatever the pOInt of entry, new abatement officers
undergo a traInIng program compnsed of a senes of 100 level courses,
offered by the mInIstry, and on-the Job tutelage from seasoned officers and
supervIsors New officers take the full range of 100 level courses wIth mInor
exceptIOn An officer may be exempted from a course If Ius or her
background renders It redundant
[Mr Helhar] testIfied a new officer generally takes all of the reqUIred
courses In the first year on the Job AccordIng to hIm, the duratIOn of the
tutelage program vanes from office to office wItlun the mInIstry He also
testIfied a new employee "after a year or so starts to become more
comfortable" In carryIng out the dutIes of an abatement officer Asked In
cross-eXamInatIOn whether Mr Bouchard had "much the same type of
background" as people lured to be abatement officers, Mr Helhar answered
In the affirmatIve (pages to 10)
Mr Paterson was the first wItness called at the heanng of the second
gnevance He produced a table hstIng courses offered between 1987 and the spnng
of 2000 and shoWIng whIch ones were offered In each year He described five
courses as beIng mandatory for all abatement officers Three of the them were
three days In duratIOn and offered In only one year Comphance Pohcy Workshop
In 1995, Dehvery StrategIes In 1998, and BIll 82 TraInIng In 2000 These three
courses were superseded by a fourth mandatory course, Level 1 Comphance
Three-weeks In length, It was launched In 2001 and offered agaIn In 2002 and
10
2003 Mr Paterson testIfied Level 1 Comphance and Its predecessors dId not
addresses pollutIOn abatement processes and dId not deal wIth how to IdentIfy a
vIOlatIOn None of these courses provIde extensIve traInIng In envIronInental
legIslatIOn except In relatIOn to specIfic enforcement prOVISIOns AccordIng to Mr
Paterson a fifth course, entItled PestIcIdes TraInIng, also was mandatory
The table produced by Mr Paterson hsts thIrteen non-mandatory abatement
courses at the one-hundred level He testIfied each of them was offered only when
a mInImUm of ten people regIstered for It There IS no eVIdence about the duratIOn
of these courses and very httle eVIdence was led about theIr content Mr Paterson
dId testIfy they deal more wIth the IdentIficatIOn of vIOlatIOns than do the
mandatory courses
In cross-eXamInatIOn, Mr Paterson was asked about traInIng on the
mInIstry's comphance pohcy for new abatement officers between 1995 and 2001,
dunng the years when thIS subJect was not addressed In mandatory courses He
testIfied aspects oftlus subJect were taught In a 1998 course called IntroductIOn to
Comphance However, he conceded between 1995 and 1998 and agaIn between
1998 and 2001, the only place for a new abatement officer to learn about the
mInIstry's comphance pohcy was on the Job Asked whether one-hundred level
courses mIght be accurately described as "basIc" or "low-level", Mr Paterson
answered In the affirmatIve He testIfied they were tYPIcally taken by someone In
the "first two or three years" of dOIng abatement work.
At the heanng of the second gnevance, Mr Helhar testIfied the mandatory
courses dId not teach pollutIOn source IdentIficatIOn, samphng and results
InterpretatIOn, pollutIOn control processes or spIlls response He
paInted a dIfferent pIcture than he had done prevIOusly about new officers takIng
one-hundred level courses In partIcular, he testIfied non-mandatory courses were
"recommended" for new abatement officers but often not taken by them As
reasons why a course mIght not be taken, he hsted not only a person already
11
havIng the reqUIsIte knowledge but also conflIctIng personal commItments, courses
not beIng offered for an extended penod and local budgetary constraInts Asked In
cross-eXaInInatIOn about Ius testImony at the first heanng, Mr Helhar rephed the
"Ideal" state of affairs would be for new officers to take the full range of courses as
he had descnbed, but that was and not "reahty"
The UnIon requested productIOn of resumes for everyone, wIthout pnor
abatement expenence at the mInIstry, who was appoInted as an E04 abatement
officer between January of 1996 and the spnng of2003 In response to thIS request,
resumes for twelve officers were produced. ReVIeWIng these documents after the
heanng, I noted the resumes for five of the twelve IndIcated they had worked In a
JUnIor abatement posItIOn before beIng appoInted at the E04 level I asked the
partIes about tlus The response of counsel for the employer was that SIX of the
twelve In fact dId have pnor abatement expenence wIth the mInIstry and should be
Ignored. UnIon counsel asserted the employer should not be allowed to revoke ItS
earher stIpulatIOn that none of the twelve had such expenence ThIS eVIdentIary
dIspute need not be resolved, because ItS resolutIOn would not affect the dISposItIOn
of the gnevance
Of the twelve new E04 abatement officers, seven at the tnne of appoIntment
held eIther a UnIVersIty degree or a communIty-college dIploma In envIronInental
sCIence, envIronmental studIes, envIronmental health or envIronmental technology
The other five had at least a degree or dIploma In a related field. Bradshaw had a
BSc In geology and a MSc In earth SCIences, Leavoy had a dIploma In terraIn and
water resource technology, Lendvay had a BSc In bIOlogy from one UnIVersIty and
had taken seven envIronmental courses at two others, McNIece had one dIploma In
natural resources technology law enforcement and another as a fish and wIldhfe
technIcian, and Ryan had a dIploma In cIvIl engIneenng WIth an envIronmental
specialty
12
The employer provIded a hst of courses taken by each of the twelve officers
after theIr appoIntment at the E04 level From the data provIded, I constructed the
folloWIng table shoWIng whIch of these twelve officers took each of the one-
hundred level abatement courses after beIng appoInted to the Job
COURSE OFFICERS TAKING
Samphng In the EnVIrOnInent Addy
Anderson
Chartrand
KentIsh
Randhawa
Wastewater Treatment for EO's None
Industnal Wastewater Treatment None
DnnkIng Water Treatment for EO's KentIsh
AIr PollutIOn Abetment for EO's None
Waste Management for EO's Anderson
Chartrand
EnVIrOnInental LegIslatIOn for EO's Bradshaw
Chartrand
KentIsh
EnVIrOnInental Responders Addy
Bradshaw
KentIsh
Leavoy
Lendvay
Approval Processes for EO's None
Land Use PlannIng for EO's None
Industnal UnIt Processes Anderson
Lendvay
EnVIrOnInental NOIse for EO's None
MISA InspectIOn and Samphng None
As recorded In the table, four employees took none of these courses, two took one,
five took two and one took three
13
UnIon counsel noted the traInIng data for the twelve new hIres conflIcts WIth
the table of courses produced by Mr Paterson, Insofar as the fonner IndIcates
certaIn officers took certaIn courses In years when the latter IndIcates those courses
were not offered. The conflIct In the documentary eVIdence produced by the
employer should be resolved In the unIon's favour, even though tlus approach may
overstate the amount of post -apppoIntment traInIng receIved by some officers
AccordIngly, I treat the traInIng data for the twelve officers as accurate wherever It
conflIcts WIth Mr Paterson's table of courses
The best eVIdence of the traInIng provIded to abatement officers IS found In
the specIfic data provIded for twelve employees from across the prOVInce I prefer
thIS eVIdence to the testImony ofMr Helhar whIch IS subJect to the vaganes of
memory and any lnnItatIOns nnposed by Ius havIng worked exclusIvely In eastern
Ontano AccordIngly, there IS no need to resolve the conflIct between Mr Helhar's
testImony at thIS heanng wIth that gIven by hIm at the first hearIng
V
Would Mr Bouchard have been quahfied to do E04 abatement work If he had
receIved the sort of traInIng provIded to the twelve officers for whom traInIng data
was provIded?
Of the thIrteen 100-level abatement courses, the largest number taken by any
of these officers IS three The three-week Level 1 Comphance course has been
mandatory SInce 2001 and had shorter precursors that were also mandatory
AccordIngly, the maXImum basIc traInIng provIded to any of the twelve officers IS
Level 1 Comphance plus three abatement courses at the one-hundred level
As the traInIng data for the twelve officers was not produced untIl after Mr
Paterson and Mr Helhar had testIfied, they were not asked whether the sort of
traInIng provIded to these employees would have remedIed the deficIencIes In the
gnevor's quahficatIOns that I IdentIfied In my first decIsIOn The paucIty of
14
eVIdence about the content and duratIOn of the 100-level courses prevents me from
detennInIng the extent to whIch any of them would have corrected these
deficIencIes
The foregoIng analysIs leads me to conclude the UnIon has not demonstrated
on the balance of probabIhtIes that the gnevor would have been quahfied to be an
E04 abatement officer If he had been gIven the traInIng taken by others after beIng
appoInted to thIS posItIOn
In comIng to thIS concluSIOn, I have not overlooked the fact that twelve
officers were able to do the E04 abatement Job, havIng receIved tlus amount of
basIc traInIng, or less, after beIng appoInted to the posItIOn The employer contends
some of them had prevIOUS expenence dOIng abatement work Even If none of
them had such expenence, theIr abIhty to do the Job wIth at most tlus amount of
basIc traInIng post -appoIntment IS not sufficIent to demonstrate the gnevor would
have been quahfied If he had gotten the same traInIng, because the eVIdence does
not show that he was as quahfied for the Job as they were before aSsumIng It In
partIcular, each of them held a degree or dIploma In an envIronInental field or
some related subJect As noted by UnIon counsel, such a degree or dIploma IS not a
reqUIrement for the Job Nonetheless, tlus sort of fonnal educatIOn IS one way to
acqUIre the sort of knowledge that IS a reqUIrement
The gnevance IS dIsmIssed.
Dated at Toronto tlus 16th day of July 2004
~
(' ... .... ... -"--f ,~~ ~ --
/RIchard Brown
VIce-Chair