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HomeMy WebLinkAbout1999-1402.Sunga.01-03-21 Decision o NTARI 0 EMPLOYES DE LA CO['RONNE CROWN EMPLOYEES DE L 'ONTARIO -- GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 1402/99 OPSEU#99E232 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Sunga) Gnevor - and - The Crown m RIght of Ontano (Mimsm of the EnvIronment) Employer BEFORE Darnel A. HarrIS V Ice Chair FOR THE Don Martm GRIEVOR Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE LIsa Compagnone Counsel EMPLOYER Legal ServIces Branch Mimsm of CommunI~ and SocIal ServIces HEARING February 20, 2001 DECISION The gnevor, EstrellIta Sunga, was declared surplus to the needs of the MInIstry of the EnvIronment At that tIme she unsuccessfully applIed for the posItIOn of ApplIcatIOn Processor and filed two gnevances Those gnevances were settled and thIS matter anses out of the settlement. As part of the settlement of those two gnevances, Ms Sunga was gIven the opportUnIty to be IntervIewed for the job and be awarded the posItIOn If she should score 70 out of 110 pOInts on the IntervIew She dId not reach that threshold. She says that the IntervIew was not fair and comes before the Board now for a reVIew of that competItIOn. At thIS stage, the UnIon has closed ItS case and agreed that the Board should determIne whether It has made out a prima facie case wIthout puttIng the employer to ItS electIOn as to whether or not It wIll call eVIdence THE FACTS. The background to thIS matter IS a reorganIZatIOn of the Approvals and Assessment Branches of the MInIStry Under the pnor structure the gnevor worked as an InformatIOn and ReceIvables Clerk. In that capacIty she would receIve applIcatIOns for CertIficates of Approval She revIewed them for accuracy and completeness, ensured that the appropnate fees had been paid, coded and logged the applIcatIOn for trackIng and assIgnment purposes and sent them on to the co-ordInator for the responsIble sectIOn (NoIse, AIr, Water, Sewage) The 2 SectIOn Co-ordInator would then assIgn the applIcatIOn to an engIneer for reVIew The gnevor said that she was reqUIred to know whether an applIcatIOn was covered by any legIslated or regulated exceptIOn from the reqUIrement to obtaIn a CertIficate of Approval If It was, she would refer the file to the manager who would deal wIth It dIrectly The reorganIZatIOn empowered the new posItIOn of ApplIcatIOn Processor wIth authorIty to deal wIth applIcatIOns In theIr entIrety That IS, they receIve the applIcatIOn, reVIew It, recommend actIOn and approve or reject the applIcatIOn. The employer said that as a result the new posItIOn reqUIres much greater techmcal expertIse, whIch the gnevor lacks Here the Umon says that the re-run competItIOn for the posItIOn of ApplIcatIOn Processor was fatally flawed In two respects FIrst, one of the questIOns was gIven a dIsproportIOnately hIgh value Second, the IntervIewers dId not accurately record the gnevor's answers, thereby failIng to accurately reflect her actual knowledge The gnevor testIfied that she worked hard to prepare for the IntervIew and was surpnsed that she had not been successful The Board IS beIng asked to rule on whether or not the Umon has made out a prima facie case It has not done so, even when consIdered on a best case basIs 3 The followmg chart sets out the scored questIOns, theIr value and the scores awarded by the three mtervIewers Scores ReceIved QUESTIONS Value #1 #2 #3 1 This posItIon reqUIres 20 92/3 8 7 knowledge of: (1) envIronmental legIslatIOn, (2) the envIronmental approvals processes, (3) technIcal knowledge WIth respect to pollutIOn control and eqUIpment, mdustnal and munIcIpal processes, and vanous ~'pes of mdustrIal eqUIpment. Please tell us, how your skills and knowledge meet each of these skills reqUIrement? 2 A representatIve of a major 20 7Y2 8 7 CI~ such as HamIlton, calls you and asks you what the envIronmental approvals and processes are reqUIred for developmg a new landfill sIte to serve hls/her communI~ Please outlIne your response to the clIent clearh mdlcatmg the Act and approval or process reqUIred under that Act. 3 What, if an, are the EBR 10 4 5 4 publIc partIcIpatIOn reqUIrements for the followmg: a) new baghouse b) new pamt spra, booth c) new dIesel generator d) new water mams e) new waster transfer statIOn 4 Could you describe to us 10 1 1 0 pnman secondan and tertIan treatInent, whIch are means of treatmg samtary sewage? 5 Please list three ~'pical sources 10 513 5Vz 5 of contammant emISSIOns mto the atInosphere from an automobIle manufacturmg facilI~ 6 This is a scenario question. 10 9 9 9 You have receIved 15 applIcatIOns to process from your supervIsor over the last 3 days You Just receIved another 5 today One of the clIents 4 from the batch of 5 that you just receIved toda, calls you. He says that he IS m a hum and needs to have hIS applIcatIOn revIewed and approved wlthm the week. He mdlcates that thIS proposal will result m 30 new Jobs m Ontano and IS worth over $5 millIon. Because of the net benefit to Ontano he IS refusmg to pa, the fees reqUIred for the applIcatIOn. If hIS applIcatIOn IS not approved m a week, he says that he will be callIng the PremIer How would you respond? 7 You have received an 10 8 8 7 applIcatIOn under sectIOn 52 OWRA for constructIOn of watennams Please mdlcate the ~'pe of mfonnatIOn reqUIred for the applIcatIOn to be consIdered complete 8 Oral Communications Skills 20 10 10 10 TOTALS 110 55 55 49 A VG SCORE 53 The first questIOn allocated 6 2/3 marks for each of the three knowledge areas addressed. The gnevor achIeved the follOWIng scores Knowled~e Area INTERVIEWER 1 2 3 1 envIronmental legIslatIon 3 3 1 2. envIronmental approvals process 623 5 6 3 technIcal knowledge 0 0 0 The gnevor testIfied wIth the aid of notes she made Immediately follOWIng the IntervIew She Said that the recorded answers dId not reflect what she Said at the IntervIew regardIng her knowledge of the legIslatIOn nor of all the steps In the applIcatIOn process 5 However, It was clear from her eVIdence, as well as the recorded answers, that she dId not demonstrate any "technIcal knowledge wIth respect to pollutIOn control and eqUIpment, Industnal and mUnIcIpal processes and vanous types of Industnal eqUIpment." AccordIngly, she properly dId not receIve any pOInts under that headIng Had she receIved perfect scores on the other two headIngs she would have receIved an addItIonal 3 2/3, 5 1/3 and 6 1/3, pOInts from the 18\ :td, and 3rd IntervIewers respectIvely As to questIOn two, the gnevor testIfied that the only Item mISSIng from the recorded answers was that she had mentIOned the need for publIc partIcIpatIOn In such a project. The pOInts to be awarded for thIS questIOn were allocated as follows Answer a) EnvIronmental Assessment Act (2.5 marks) 2.5 marks - submIssIOn of the Terms of Reference - IndIvIdual EnvIronmental Assessment b) EnvIronmental ProtectIOn Act (2.5 marks) 2.5 marks - CertIficate of Approval for a Waste DIsposal - landfill SIte - CertIficate of Approval (AIr) (1.e for landfill gas flare) c) Ontano Water Resources Act (2.5 marks) 2.5 marks - CertIficate of Approval for mdustrIal sewage (1.e for a leachate collectIOn system) d) EnvIronmental Bill of RIghts (2.5 marks) 2.5 marks - EBR reqUIrements of CertIficates of approval (PublIc partIcIpatIOn) 6 The gnevor made no mentIOn of the Ontario Water Resources Act at all, nor dId she refer to the Environmental Bill of Rights AccordIngly, her best result would be to allow her full marks for the Environmental Assessment Act and the Environmental Protection Act and 2 5 marks for refernng to the need for publIc partIcIpatIOn. That result would Increase her score by 5, 4 lIz and 5 lIz marks respectIvely The expected answer to questIOn 3 IS as follows Answer a) a mllllmum of 30 days IS reqUIred on the EBR Reglsm for publIc comment (2 marks) b) a mllllmum of 30 days IS reqUIred on the EBR Reglsm for publIc comment (2 marks) c) none (2 marks) d) none (2 marks) e) a mllllmum of 30 days on the EBR Reglsm plus some other ~'pe of publIc partIcIpatIOn such as advlslllg the nelghbours, mformatIOn seSSIOns, newspaper ads, etc (2 marks) The gnevor got full marks on a) and b) She testIfied that she dId not know the answer to c) or d) Her answer to e) Included that there was a reqUIrement for a publIc heanng, whIch IS wrong. She was scored as follows Answers In terviewer 1 2 3 a 2 2 2 b 2 2 2 c 0 0 0 d 0 0 0 e 0 1 0 Her best Improvement IS an addItIonal mark from each of IntervIewers # 1 and #3 for part e) of the questIOn. 7 As to QuestIOn 4, the umon objected to the vtlIght gIven to thIS questIOn. There was no allegatIOn from the gnevor that the answers were Incorrectly recorded nor that the mark gIven was Inappropnate I am unable to conclude that on balance thIS questIOn IS dIsproportIOnately weIghted. The treatrrent of samtary waste IS clearly WIthIn the mandate of the Mimstry and Intncately bound up In the CertIficate of Approval process ThIS questIOn IS testIng one of the underlYIng, fundamental knowledge reqUIrements of the posItIOn. It IS worth only 9% of the overall total AccordIngly the gnevor could not Increase her score on thIS questIOn even on a best case scenano As to questIOn 5, no ObjectIOn was raised to the marks awarded or the recorded answers As to questIOn 6, the gnevor receIved nIne rut of ten marks from each IntervIewer A key response looked for was that the supervIsor was to be Involved In such a problem only In extreme CIrcumstances The gnevor's answer Included the Involvement of her supervIsor as a matter of course I would rot Interfere wIth that mark. However, on a best case basIs, the gnevor would have receIved an extra mark from each IntervIewer 8 As to questIOn 7, the gnevor took no exceptIOn to the marks awarded nor the answers recorded. She said the marks were fairly awarded. QuestIOn 8, calls for an assessment of the gnevor's oral commumcatIOn skIlls Each IntervIewer awarded ten out of a possIble twenty marks The IntervIewer's each grounded theIr marks and comments as to how they amved at theIr marks In the Ir prevIOUS observatIOns relatIng to the other questIOns On ItS face there can be no reason to Interfere at thIS stage wIth the marks gIven. In the result, the gnevor, on a best case scenano, mIght have Increased her marks by 10 2/3, 11 and 14 % for totals of 65 2/3, 66 and 61 % from IntervIewers 1, 2, and 3 respectIvely On a best case scenano, her average score could not have exceeded 65 The threshold for success was 70 marks AccordIngly, the gnevor faIled to meet the threshold reqUIrement and IS not qualIfied for the posItIOn. The complaInt that the employer has faIled to abIde by the terms of the settlement IS dIsmIssed. Dated at Toronto, thIS 21st day of March, 2001 Damel A. Hams, VIce Chair 9