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HomeMy WebLinkAbout1977-0139.Fish.78-12-04,. ” ‘. ^I IN.THE- MATTER OF AN ARBITRATION Under The .~' CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr: Wm. M.' Fish . : ?, And The Crown in Right of Ontario Ministry of Labour Before: .~‘. -. i Professor Katherine Swinton Vice-Chairman -Mrs. Mary Gibb Member Mr. Ron. Cochrane Member 7 For the Grievor: . Mr. Richard Nabi-, Grievance Officer Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontaric , For the Employer: Mr. Eric Scott, Solicitor. Ministry of Labour ~ Legal Branch ‘. 14th F.loor, 400'University Ave.. Toronto, Ontario ,.. .~.~ Hearing: October 12, 1978 Suite 2100, 180 Dundas St. W. Toronto, Ontario In this grievance, Mr. Fish claims that he has been unjustly denied a promotion to the position of Industrial Safety Inspector 2 in the Ministry of Labour, contrary to article 4.3 of the Working Conditions .Collective Agreement. In particular. he alleges that the employer acted unreasonably and in bad faith in not selecting him and that it failed to consider his seniority. This is a case in which the rights of a third party could be materially affected by the decision of the Board. and the employer accordingly notified Nr. Leroy Ouellette, the present incumbent of the position of Industrial Safety Inspector 2, of this fact. Mr. Ouellette was present at the hearing, and he allowed his position to be presented through the employer. The grievance requires the Board to interpret the words of article 4.3 of the collective agreement, which state - In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. The words of article 4.3 place an onus on the grievor to prove that he has the requisite qualifications and ability'for the job, and that he was relatively equal to Mr. Ouellette. Only then does length of continuous service become a consideration. (See Doherty and Ministry of Health, 43/76; Morton & Tdynen and Ministry of the Attorney General, 11/77). Arbitral review with regard to management decisions on job promotions is restricted in scope. The arbitration board will not substitute its -3- decision for that of management wjth ~regard to questions of qualifications and ability. Rather; it will look,to,see, first, whether management has . : acted in bad faith, arbitrarilyl or Jn'a discriminatory manner, and secondly, whether management's decision. was reasonable (Doherty, supra; Re Union Carbide Canada'Ltd.w;j967),'ff' i:A.C. 109 (Weiler) at 118). I'_: '.'. '. The grievor, Fish, is presently employed as Field Counsellor I, Ministry of Colleges land Universities;in the Industrial Training Branch. He applied for the position of Industrial Safety Inspector 2 in the CitY of Windsor after seeing an advertisement in the,government newspaper, Topical Job Market (Ex. 3). That advertisement readi June 17 ,- Topical Job Market. p. 5. 'Ex. 3 :'.' rndus'trial Safety Inspector 2 $17,500 - 18,700 .: (restricted) Experienced befsoris are ~required by the Ministry of Labour to ins&t industrial establishments .~ and enforce the Industrial Safety Act with respect: to hazards associated with the safety and health of employees within the assigned region. In these positions, you will: recognize the .hazards associated'with the operation of machinery, use of chemicals, indus- 'trial pro&esses;work procedures, building design and prepare accurate reports of inspections and accidents; advise nianagement and,workers on . all aspects of safety, including machine guarding and safe. work practices. Location: Windsor. .T . -4- Qualifications: secondary school graduation or acceptable equivalent; extensive knowledge of the operation and maintenance of industrial machinery, guarding regulations; several years experience as plant foreman/woman or superintendent. Submit detailed resums or appli- cations by July 4 to: File 15-14, Ministry of I&our, Personnel Branch, 400 University Avenue, 7th Floor, Toronto, Ontario, M7A lT7. Mr. Fish gave evidence of his qualifications for the job of Industrial Safety Inspector 2 in light of the content of the advertisement. His qualifications include Grade 12 education, plus a one year course in supervisory management at St. Clair College in Windsor; a certificate of qualification as a millwright; and previous employment experience that included 5k years at Kelsey-Hayes Ltd., ending as Supervisor Of Maintenance of Industrial Trades; 2 years at Canadian Canners as head mechanic, Maintenance; and 4 years at Chrysler Canada as an industrial millwright apprentice. He has been with the Ministry of Colleges 8 Universities since October 1974. Through his work at Kelsey-Hayes, he gained familiarity with the provisions of the Industrial Safety Act, particularly because the work of the millwright involves design of machine guards. In addition, while at Kelsey-Hayes, he attended a six- day course in supervisory safety sponsored by the National Safety Council Mr. Fish was one of several applicants interviewed for the vacancy in the Industrlal Safety Branch, but he was disturbed by the selection procedure used. On June 30, 1977 he was informed by letter that he would -5- '. be contacted before July:22 if-he was to be dnterviewed for the job ..1 I. I. i . . (Ex. 5). Since he was going on holidays, Fishcontacted the Ministry on July 14 and asked if he.was to be-interviewed because he was about to go away. He was given no indication about'an interview. Ultimately, '. a telegram was sent. July 19;setting up an .interview July 21 (Ex. 6). This telegram did not arrive until July 26, but in any event Fish was away. On.his,return from holidays, he heard that interviews had been conducted, and he contacted the Ministry to object. An interview was .then arranged~for August 8. : .. : Mr. Fish found the interview of twenty minutes fair but brief. : ; , .. I_ ~, His major concern was that it was pro form. In the office prior to the interview, Keith McIntyre, the Office Manager and one member of the 3-man interviewing panel, said to Fish that he thought there was a mix-up and a person had already been "selected" for the job. Oncross-examination, Mr. Fish changed "selected" to "considered" for the job. Nevertheless, _ Fish 'was interviewed and' later heard of Ouellette's selection for the job. .~, No further evidence was presented by the grievor. Mr. Scott, for ,. the employer, then made a motion for non-suit. The Board put him to his election as to whether to call evidence (as in me Orenda Ltd. (1972), 1 L.A.C. (2dJ 72 (Lysyk) at 80; Re Gilbarco Canada Ltd. (19731, 1 L.A.C. (2d) 348 (Carter) at 351-53; Re tiercules Canada Ltd. I. (1974J, 5 L.A.C. (2d) 257(O'SheaJ at 262-631'. Mr. Scott elected t0 call no evidence and proceeded with h,is argument on the motion. - 6 - A motion for non-suit requires the Board to decide whether the grievor has led a sufficient quantum of probative evidence to make a prima facie case. In this case, the Board finds that the grievor has failed to do so, and the motion for non-suit is granted. In making a complaint that the employer violated article 4.3 of the collective agreement, it was up to the grievor to show the nature of the work to be performed, his ability to do that work, and the relative equality between his ability to do the work and Ouellette's ability to do so. While it may be possible to regard the job advertisement as indicating the nature of the work and while we have evidence of Fish's qualifications, we were presented with no evidence of Mr. Ouellette's qualifications - even though Mr. Ouellette was present at the hearing. In a grievance involving competition between candidates. where seniority is not relevant until relative equality between candidates has been established. there should be evidence as to the qualifications of both candidates. In addition to the complaint that the employer failed to give proper consideration to his seniority, the grievor raised questions about the reasonableness and good faith shown by the employer in the selection procedure used. All that the Board has in evidence is a statement by McIntyre that another candidate had been "selected" or "considered". and testimony by the grievor that he was given notice of the interview by telegram only two days before the interview was to have taken place. Notice was apparently the result of some prompting by the grievor himself. No evidence was led to show when the interview -7- list for applicants had been established, that the notice period was any less than that given to other candidates, or when Ouellette learned that he had the job. No evidence was led as to the interview procedure used for applicants other than Fish - e.g., questions asked or composition of the interview panel. As a result, we must find that the grievor has led insufficient evidence to prove that the employer acted unreasonably, for he was given a hearing which he said was conducted fairly, although it was brief. While the grrevance is dismissed, the Board does wish to express its concern witch regard to the procedure which appears to have been used by the Ministry of~Labour in filling this job vacancy. No evidence was led to show the procedure employed, but counsel for the employer did indicate, on questioning from the Board, that the panel interviewing Fish on August 8 differed in composition from that interviewing the other candidates on July 21 (one member being different). He indicated that the-panel was only a screening device to assist Fred Burton, the Area Supervisor, who'made the final decision. Burton was a member of both panels. .Nevertheless. the procedure used was unfair to the griever, who was entitled to have his candidacy evaluated by the same screening panel as the other applicants (see Bancej, P.s.G.B. 882/78h Furthermore, there was no indication of a list of prepared questions used for each applicant, a procedure suggested by this Board in Morton & ~aynen & the Ministry of the Attorney G~IEEJ, u/77 at 17. Also, the advertisement answered by the grievor mentioned a competition restricted to members of the classified service, while the competition was in fact unrestricted. -8- Such practices by the Ministry are not conducive to promoting good morale among employees and can only lead to further grievances. Had evidence of such practices been led, the Board might well have reached a different result. For the reasons outlined above, the grievance is dismissed. Dated at Toronto, Ontario this 4th day of December. 1978. Katherine Swinton Vice-Chairman I concur Mary Gibb Member I concur Ron. Cochrane Member