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HomeMy WebLinkAbout1992-0827.DiFederico.07-02-09 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 Nj ~ Ontario GSB#1992-0827, 1993-0413, 1993-0414 UNION#[92E215], 1992-0205-0008 [93B510], 1992-0205-0009 [93B511] IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Difederico) - and - The Crown in Right of Ontario (Ministry of the Attorney General) Ken Petryshen Gavin Leeb Barrister and Solicitor Janice Campbell Counsel Ministry of Government Services October 4,2005; and January 9, November 9, November 16 and December 8,2006 Union Employer Vice-Chair 2 Decision Before me are three grievances filed in 1992 by Mrs. S. Difederico. During the relevant period, Mrs. Difederico was employed by the Ministry in the unclassified service as an Office and Systems Clerk and Cashier (hereinafter referred to as the "Clerk position") at the Ontario Court of Justice (Provincial Division) ("the Court") in Hamilton. In November of 1991 and October of 1992, the Employer posted classified Clerk positions. Mrs. Difederico applied on both occasions for one of the positions, but was unsuccessful each time. In a grievance dated January 15, 1992, Mrs. Difederico claims that she was unjustly denied one of the two classified Clerk positions posted November 12, 1991 ("the 1991 competition"). She requested that she be awarded the Clerk position effective January 6, 1992, and be compensated accordingly. In a grievance dated December 7, 1992, Mrs. Difederico challenges the Employer's decision not to select her for one of the three Clerk positions posted in the Fall of 1992 ("the 1992 competition"). One of the three Clerk positions was designated a bilingual position. The text of this grievance reads as follows: "That I was not awarded the position of Office & Systems Clerk and Cashier Competition AG #109A/92. The positions were awarded to individuals with less aggregate service. This is a violation of the collective agreement 3: 15.1, and any other relevant article of the collective agreement, including article (A) Al.1, Al.2, 4.3, 25.1 -last paragraph." She again requested that she be awarded a classified Clerk position. By letter dated December 7, 1992, Ms. M. Hudacin, Acting Manager, advised Mrs. Difederico that her unclassified contract would terminate on December 21, 1992, effectively ending her employment with the Ministry. In a grievance dated December 15, 1992, Mrs. Difederico challenged what she characterized as her unjust dismissal. She requested in this grievance that she be reinstated and compensated accordingly. 3 At an earlier stage in this proceeding, the Employer took the position that the three grievances filed by Mrs. Difederico in 1992 should be dismissed because of undue delay. The Employer argued that it had been prejudiced by the delay and the Union submitted that the Employer had failed to demonstrate that there was any actual prejudice in these unusual circumstances. The Union also took the position that the delay issue should be deferred in the circumstances of this case until the merits were heard. I concluded in a decision dated February 22,2005, that it was appropriate in the circumstances to reserve on the delay issue and to hear the merits of the grievances. In the unique circumstances before me, I determined that the best way to address the issues arising from these grievances, including the issue of delay, was to hear the merits. Further hearing days were scheduled to address the merits of the grievances and any additional evidence on the issue of delay. The hearing resumed on October 4,2005, and required five days to complete. The Union called Mrs. Difederico and Ms. 1. Fazakas to testify. The Employer called as its witnesses Ms. S. Wetherup (formerly Picklyk) and the three individuals on the 1991 competition panel, namely Mr. P. Philp, Court Services Manager at the time, Ms. D. McNeil, Acting Court Administrator at the time and Ms. M. Hudacin, who assumed the Acting Court Administer position as of December 1, 1991. In determining the facts, I have carefully considered the oral and documentary evidence. I have also considered the reliability of the evidence and I resolved any conflicts in the evidence by determining what is most probable in light of all of the circumstances. There is little dispute about the factual context giving rise to the three grievances. The first competition took place under the two year Collective Agreement that expired on December 4 31, 1991. A provision dealing with the conversion of unclassified positions appeared for the first time in this Collective Agreement. Article 3.15.1 provided as follows: Effective April 1, 1991, where the same work has been performed by an employee in the Unclassified Service for a period of at least two (2) consecutive years, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Classified Service to perform that work, and shall post a vacancy in accordance with Article 4 (Posting and Filling of Vacancies or New Positions). The purpose of article 3.15.1 was to limit the right of the Employer to use unclassified employees to perform work for which there was a regular and continuing need. The provision only has the effect of converting positions. While it does not convert the status of individuals from unclassified to classified, it does have, in a general way, the effect of increasing the rights of non-seasonal unclassified staff. In 1991, there were a number individuals employed in the Clerk position at the Court in Hamilton. Approximately fifteen individuals were in classified Clerk positions and five were in unclassified Clerk positions. The five unclassified Clerks were Mrs. Difederico, Ms. Picklyk, Ms. A. Stringer, Ms. Fazakas and Ms. L. Us selman The unclassified employees had been employed as Clerks on consecutive contracts for a number of years. Out of the five, Mrs. Difederico had been employed the longest, with a start date of March 17, 1987. Ms. Picklyk started in October of 1988, Ms. Fazakas on December 5, 1988 and Ms. Usselman on May 8, 1989. Given that the conversion provision was effective April 1, 1991, the Union and the unclassified employees were exerting some pressure on the Employer to post classified Clerk positions. A Staff Requisition document prepared by the Employer illustrates that Ms. McNeil made a request on June 27, 1991 to post four vacant Clerk positions as soon as possible. It appears from the document that Ms. McNeil was authorized subsequently to post three Clerk positions. Minutes ofa staff meeting held on November 13,1991 refers to a hiring freeze and 5 the fact that the Ministry was awaiting exemptions from the freeze, but would continue with the competition for classified Clerk positions but not make offers until exemptions were obtained. As noted previously, the Employer posted two classified Clerk positions for the Court in Hamilton on November 12, 1991. None of the management witnesses could recall why only two classified Clerk positions were posted, although they speculated it had to do with budgetary concerns. There were thirty-nine applicants for the two classified Clerk positions in the 1991 competition. It was an open competition. Fourteen of the applicants met the criteria for the position and thirteen of the applicants were interviewed. The interview panel reviewed the interview questions and the expected responses. Each panel member marked each candidate separately. Ms. Picklyk and Ms. Stringer, two of the unclassified employees, were the successful applicants. Out of a total of 123 interview points, the candidate who ranked second had an average of 107 points. Mrs. Difederico ranked seventh and had an average of 86 points. In addition to Mrs. Difederico, Ms. Fazakas and Ms. Usselman grieved the 1991 competition. Many of the documents relating to the 1991 competition were available because Mrs. Difederico had made a Freedom of Information request in March of 1992. After the 1991 competition was completed, Mrs. Difederico, Ms. Fazakas and Ms. Usselman continued to work in the Court as unclassified Clerks. As one might expect, they wanted to resolve the grievances and secure classified Clerk positions. The Union also pursued the matter with some vigour. In a grievance dated April 1, 1992, the Union filed a policy grievance claiming that the Employer violated the Collective Agreement by not posting two Cashier positions and one Clerk position at the Court in Hamilton. There were at least two attempts to settle the unresolved issues. The Union executed a document dated June 1, 1992 in 6 which it proposed, among other things, that the Employer post three Clerk positions by June 15, 1992. The Employer did not execute the document. The Employer executed a document dated September 4, 1992 in which it proposed to post two unilingual classified Clerk positions. The Union did not execute this document. In October of 1992, the Employer posted three Clerk positions and designated one of them a bilingual position. The documentation relating to the 1992 competition was destroyed in 1996 with the result that the kind of material that was available for the 1991 competition was unavailable for the 1992 competition. Ms. Fazakas and Ms. Usselman were successful in securing a non- bilingual Clerk position while another applicant obtained the bilingual Clerk position. There was no suggestion that Ms. Difederico was qualified for the bilingual Clerk position. By letter dated July 28, 1992, the Union withdrew the Union grievance it had filed in April of 1992. On December 4, 1992, Ms. Hudacin met with Mrs. Difederico away from the work location in a coffee shop. She advised her that she had not been successful in the 1992 competition and provided her with a letter confirming that she had not been selected for a Clerk position. Ms. Hudacin also advised Mrs. Difederico that she would soon be advised in writing that her unclassified contract would terminate on December 21, 1992. The letter so advising Mrs. Difederico is dated December 7, 1992. With the conversion of the five unclassified Clerk positions into classified positions, there was no longer a Clerk position in the unclassified service at the Court in Hamilton. Mrs. Difederico started working again for the Ministry in Hamilton on April 25, 1994 in the unclassified service. She worked initially as a Sheriff s officer but soon thereafter she began performing court services duties which she continues to perform to this day. 7 On a number of occasions during her testimony, Mrs. Difederico expressed the view that management at the Court in Hamilton had "a plan" to remove her from the Clerk position at the Court. From her perspective, most if not all of the managers who were at the Court since at least 1990 participated in "the plan". Mrs. Difederico explained her failure to secure a classified Clerk position and the termination of her unclassified contract by stating that "it was all part of the plan". She testified that she knew beforehand that she would not be successful in the 1991 and 1992 competitions. She referred during her testimony to a number of events and circumstances, some of them occurring as far back as 1989, which she believes establish the basis for why management treated her unfairly and in bad faith during the two competitions and when it terminated her contract. The managers who testified denied that there was a plan to remove Mrs. Difederico form the Court. I will briefly address this evidence because the Employer did refer to it in its submissions and there is no doubt that Mrs. Difederico feels strongly that the circumstances she referred to are significant. Mrs. Difederico testified that management discriminated against her because of her friendship with Ms. H. Ravenberg. Ms. Ravenberg was the manager who hired Mrs. Difederico in 1987. It appears that Ms. Ravenberg was charged by the police with a work related offense in 1988 or 1989, and then left her position at the Court. Mrs. Difederico believes that management treated her improperly because of her association with Ms. Ravenberg. There is no evidence to suggest that Mrs. Difederico had a relationship with Ms. Ravenberg that differentiated her from other staff at the Court. The managers on the 1991 competition panel came to the Court after Ms. Ravenberg had left and, although they had heard some rumors relating to her, they were unaware of a relationship between Ms. Ravenberg and Mrs. Difederico. There is simply no 8 evidence to support Mrs. Difederico's allegation that management discriminated against her because of her association with Ms. Ravenberg. Mrs. Difederico testified that she was interviewed by the police on two occasions with respect to work related investigations. It appears that in each instance all staff were interviewed so that Mrs. Difederico was not being singled out for different treatment. She testified that she received harassing phone calls at home and that she believed her home telephone number was tapped. There is no direct evidence to establish that her home phone was tapped and she never reported this issue to anyone. Mrs. Difederico does not know who made what she characterized as harassing phone calls and she agreed that she could not establish that management was behind them. She testified that she was followed on more than one occasion. In one instance, she believed that a police detective who had previously interviewed her and who was walking on the opposite side of the street was following her. Mrs. Difederico also testified about an incident that occurred at a Christmas lunch for staff. She testified that Ms. McNeil, who was sitting beside her at the lunch, put her arm around her. Mrs. Difederico interpreted this as an action by Ms. McNeil to point her out to someone, although she did not know who. Mrs. Difederico called her husband to tell him "they were at it again". Mrs. Difederico testified that when she returned home there was a car close to her home, although she could not identify who was in the car. Although Mrs. Difederico found these events quite troubling, the absence of direct evidence, the nature of the events and the absence of a link to management for some of the events compel the conclusion that they do not support her allegations against the Employer. The Clerk position encompasses a number of duties, including a cashier function. Many of the Clerks did not like to perform the cashier function. Mrs. Difederico testified that she was assigned cashier duties primarily and that she had little opportunity to gain experience with the other duties of the position. From her perspective, other Clerks were assigned to perform all of 9 the duties of the position. Mrs. Difederico believed that management intentionally assigned her to perform cashier functions on a continuous basis in order to disadvantage her. Mrs. Difederico's view that her failure to obtain experience in the other duties of the Clerk position was a disadvantage to her in the 1991 and 1992 competitions may very well be correct. However, there is no evidence to indicate that management intended to limit her job experience as part of a plan to disadvantage Mrs. Difederico. Indeed, the evidence is that Mrs. Difederico was quite prepared to perform the cashier duties and that she performed them very well. Given that other employees preferred not to perform those duties, it is not surprising that management would have elected to assign Mrs. Difederico to perform them. When asked to explain why she referred to certain parts of the discrimination provision in the Collective Agreement in her second grievance, Mrs. Difederico stated that she believed that management discriminated against her because of her Scottish ancestry and because of her activity in the Union. With respect to the first item, she offered only the assertion that she was the only Scot on staff. With respect to the second item, she stated that she was a Union member, attended Union meetings and was working to become a steward. Mrs. Difederico assumed that individuals who were not sympathetic to the Union advised management of her activity with the Union. There was simply no evidence to support the allegations that Mrs. Difederico was discriminated against because of her ancestry or because of her limited and unexceptional activity in the Union. I agree with the submission of Employer counsel that that there is simply no evidence that management at the Court had a plan to remove Mrs. Difederico from her position with the Ministry. The allegations that were intended to establish the existence of such a plan are without any foundation. The renewal of her unclassified contract for many years and her rehire in 1994 10 are inconsistent with the existence of a plan to remove Mrs. Difederico from the workplace. I turn now to address the Union's submissions. Counsel for the Union took the position that but for the conduct of the Employer Mrs. Difederico would have been in a classified Clerk position by no later than the end of 1992. In his submissions, counsel focused on the timing of the postings for the classified Clerk positions, the scoring of Mrs. Difederico by Ms. McNeil in the 1991 competition, the relative equality between Mrs. Difederico and the other applicants in that competition and why her length of service should have been the deciding factor, and the failure of the Employer to consider her performance as a Clerk when assessing her ability. In support of his submissions, counsel relied on the following decisions: Re Norland, 3160/92 (Gorsky), Re Union Grievance andMTO, 211/02 (Brown), Re Tolmie, 975/91 (Saltman), Re Nixon, 2418/87 (Fisher) and Re Group Grievance andMCS, 1999/98 (Harris). Counsel argued that the Employer should have posted the vacancies in the Clerk position earlier in 1991 pursuant to article 3.15.1 and, if it had done so, Mrs. Difederico would have obtained a classified Clerk position. There is some merit to an aspect of this submission. When the conditions in article 3.15.1 have been met, there is an obligation on the Employer to post a vacancy within a reasonable period. Given that the evidence in the instant case demonstrates that the conditions for posting the Clerk vacancies had been met, the Employer was obliged to post all of the vacancies as soon as reasonably possible subsequent to April 1, 1991, the effective date of the provision. Administrative measures such as a hiring freeze or budgetary issues are not valid reasons for failing to post vacancies pursuant to article 3.15.1. However, the failure of the Employer to post Clerk vacancies earlier does not assist Mrs. Difederico. As noted previously, article 3.15.1 only has the effect of converting positions and would not convert Mrs. Difederico 11 from unclassified to classified. What is problematic about the Union's submission is its contention that Mrs. Difederico would have secured a classified Clerk position if the Employer had posted the vacancies sooner. This contention is pure speculation. The Employer would likely have posted one of the positions as a bilingual position, leaving only four classified Clerk positions available. There is no guarantee that Mrs. Difederico would have had a better chance of success if the Clerk positions had been posted earlier. It is noteworthy that she finished seventh in the 1991 competition and that she was unsuccessful in obtaining one of the four positions available to her in the two competitions. In my view, there is no basis for concluding that Mrs. Difederico would have secured a classified Clerk position if the Employer had posted the vacancies earlier. Counsel noted that the scoring by Ms. McNeil of Mrs. Difederico's responses to the interview questions were significantly lower than the scores of the other panel members, particularly with respect to the question dealing with experience. Ms. McNeil gave a score of 10 for her response to that question, while each of the other panel members gave her a score of 18. Overall, each of the other panel members gave Mrs. Difederico a score of96, while Ms. McNeil gave her a score of 66. Counsel argued that Ms. McNeil's score should be ignored because the differential is evidence of bad faith and an effort to keep Mrs. Difederico from entering the classified service. Although there is a difference in the scoring of Mrs. Difederico's responses among the panel members in the 1991 competition, the evidence does not support the conclusion that Ms. McNeil was acting in bad faith. An examination of the scoring of all the candidates reveals that there is a considerable variance in the scoring by all the panel members. It appears that Ms. McNeil often gave a candidate the lowest score, not just Mrs. Difederico. The difference in 12 scoring likely occurred because, as the manager of the area, Ms. McNeil was being more critical of the responses of each candidate. As counsel for the Employer noted, Mrs. Difederico would have only ranked fifth in the 1991 competition if Ms. McNeil gave her the same score as the other panel members. Focusing on the 1991 competition, counsel submitted that Mrs. Difederico was relatively equal to the successful candidate that ranked second and, relying on Re Norland, supra, he argued that her length of continuous service should have been considered, which would have secured her a classified Clerk position. Even if the Union's general analysis is correct in the circumstances, it does not assist Mrs. Difederico. Although the Union referred to instances where the Employer determined relative equality by using a percentage differential greater than ten per cent, it is my conclusion that the ten per cent rule is applicable in the circumstances of this case. The raw score differential between the second ranked candidate and Mrs. Difederico was 21 (107-86). Whether one applies this differential to a percentage of the higher or lower score, the differential is at least over fifteen per cent. In my view, the interview scores demonstrate clearly that Mrs. Difederico was not relatively equal to the second ranked candidate so that even if the Union's analysis relating to article 4.3 is correct, Mrs. Difederico's length of continuous service is irrelevant. Prior to Re Norland and before the introduction into the Collective Agreement of article 3.15.1, the GSB held that a competition grievance filed by an unclassified employee was inarbitrable. In Re Norland, the GSB decided as a preliminary matter that an unclassified employee in Mrs. Difederico's position can file a competition grievance and can claim a breach of article 4.3. I was not referred to any decision which addressed how to apply article 4.3 in circumstances where an unclassified employee had grieved a competition. It appears that there is 13 no decision on the merits of the Norland grievance. Given that unclassified employees do not accumulate seniority, it is arguable that an unclassified employee can succeed in challenging a competition using article 4.3 only if the grievor can demonstrate that he or she has superior ability when compared to the other candidates. Mrs. Difederico was certainly not superior to the successful candidates in the 1991 and 1992 competitions. Given my view that she was not even relatively equal to the successful candidates in both competitions, it is unnecessary to consider how article 4.3 would be applied to unclassified employees. Counsel also argued that it was inappropriate for the Employer to rely only on the interview scores and that it should have considered Mrs. Difederico's work performance. I agree with those decisions which indicate that it may be inappropriate to decide a competition only based on interview scores. However, in this case there is no evidence to indicate that a consideration of Mrs. Difederico's work performance would have altered the result in the two competitions. There is no evidence to suggest that her work performance was better than the performance of the successful candidates. In fact, Mrs. Difederico's testimony suggests that the work performance of the successful candidates may have been superior because they performed most of the duties of the Clerk position, while she was limited primarily to cashier duties. In summarizing the merits of the grievances, there is no basis for concluding that the 1991 competition was flawed or that the Employer's conduct in connection with this competition was tainted by bad faith. Based on a conversation she overheard between Ms. McNeil and Ms. Picklyk, Ms. Fazakas testified that she believes that Ms. McNeil provided Ms. Picklyk with the interview questions in advance. There is no direct evidence from the conversation she overheard to support this belief and Ms. Wetherup (Picklyk) testified, truthfully in my view, that she was not provided with the interview questions in advance. Given the limited evidence concerning the 14 1992 competition, there is no basis for a successful challenge to that competition. There was no suggestion that the Employer was not entitled to designate one of the Clerk positions as bilingual or that it was acting in bad faith by doing so. In one sense, Mrs. Difederico's perception that she was victimized by these events is true. She was a victim of circumstances. With five unclassified employees competing for four classified Clerk positions, she found herself in the unfortunate position of not having an unclassified Clerk position. The Employer's decision to terminate her unclassified contract was not an arbitrary decision or one made in bad faith. As noted previously, the Employer had taken the position that Mrs. Difederico's grievances should be dismissed because of undue delay. It reiterated this position during final argument. When taking into account the evidence at this stage of the proceeding, the Employer's position appears to have some merit. However, having dismissed the grievances on their merits, it is unnecessary to determine whether the unique circumstances of this case would also warrant the dismissal of the grievances for undue delay. Finally, I will address an issue that arose on the day scheduled for final argument. At the commencement of the hearing on December 8, 2006, counsel for the Union requested that the Union be allowed to reopen its case in order to call further evidence relating to the 1991 competition. Counsel indicated that he had been advised on the previous day that there were additional witnesses with relevant testimony that were now willing to come forward to testify. He advised that the Union was aware previously that these witnesses could provide relevant testimony but the Union had been advised that these witnesses would refuse to cooperate. Counsel argued that the GSB had the power to permit the Union to reopen its case and that it should exercise that power in these circumstances so that the requirements of natural justice could be satisfied by the presentation of all of the relevant evidence. Counsel argued that any 15 further delay would not be significant and that such a concern could be addressed in a remedial order should the grievances succeed. Counsel requested that the hearing be adjourned and that the Union be permitted to call the witnesses on a subsequent hearing date. After adjourning to consider the Union's request, I made the following oral ruling at the hearing: "On the day set down for final submissions and after the Union had closed its case in chief and elected not to call reply evidence, the Union requested that it be permitted to reopen its case in order to call additional evidence from two witnesses relating to the 1991 competition grievance. The Employer has vigourously opposed this request. After considering the circumstances and the submissions of counsel, and in balancing the relevant interests, it is my conclusion that it would be inappropriate to allow the Union's request. Accordingly, given the basis for the request, I decline to exercise my discretion to permit the Union to reopen its case. Reasons for this determination will be included in the final decision dealing with the merits of the grievance. There is no doubt that as master of its own procedure the GSB has discretion to permit a party to reopen its case. The exercise of this discretion will involve a balancing of competing interests, such as the need for finality and the need to provide a fair hearing. This is not a case where the Union was unaware of the existence of the evidence when it was presenting its evidence in chief. It appears that the Union was aware of the evidence that the witnesses it now wants to call could provide, but it understood that they would not be cooperative. In my view, a party's assessment of whether a witness is willing to cooperate or the cooperativeness of a witness are not factors which favour permitting a party to reopen its case. Given the history of this proceeding, including the length of time it has taken, I was not convinced that the circumstances relied on by the Union warranted the unusual step of permitting it to reopen its case. 16 For the forgoing reasons, the three grievances before me filed by Mrs. Difederico in 1992 are hereby dismissed. Dated at Toronto, this 9th day of February, 2007. 11~ : .~ -, ~ ~ -' ~~ - "" '." Ken Petryshen, Vice-Chair