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HomeMy WebLinkAbout1978-0104.Sandford.81-07-08. IN THE MATTER OF AN ARBITRATION Under the CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Mrs. Claire J. Sandford and Grievor The Crown in Right of Ontario Workmen’s Compensation Board Employer Before: Professor K. Swinton - Vice-Chairman Mr. R. Russell !Member Mr. D. B. Middleton - Member For the Grievor: Fa the Employer: Mrs. Claire J. Sandford (Crievor) Mr. M. P. Moran Hick, Morley, Hamilton, Stewart and Storie Barristers & Solicitors Hearins April Z&h, 1981 -2- This is a grievance in which Claire Sandford claims that she was unjustly denied a promotion to the position of Claims Counselfor in the North Bay office of the Workmen’s Compensation Board, contrary to Article 5 of the co&active agreement. Mrs. Sandford appeared on her own behalf in this grievance. The union stipulated that jt would not be bound in any interpretation of the collective agreement which results from this .award of the Grievance Settlement Board. Sandford has been an employee. of the Workmen’s Compensation Board since.December 9, 1974, when she was hired as. a Stenographer in the Sudbury office. At the time she applied for the Claims CounselJor job on February 8; 1978, she was working ‘as a Claims Receptionist Counselor in the North Bay Office. She had held that job since February 18, 1977. The major activities of the Claims Counsellcr position are set out in the job description (Rx. 18). They include the following: 1. Assess and keep attuned to present and future needs; trends, problems and opportunities for improvement relating to community information ” and counselling needs. 2. Handle difficult enquiries pertaining to a specific claim cr general Board policies and procedures. 3. Obtain any necessary information, initiate and complete required action to satisfy, expedite or resolve enquiries. 4. Act as the interface and personal point of contact between the injured employee, employer or representative, and the Board to expedite decision making and facilitate communication of information. , -3- 5. Conduct field counselling and information gathering activities in response to community and Board needs, as required. 6. Conduct speaking engagements for small groups, on an informal basis and establish contact with employers and other interested community groups to promote public r,elations and a basic. understanding of the Board’s policies and procedures. 7. Provide assistance and guidance on all matters relating to the Information and CounsellIng Services in the Board. 8. Explain and inform the public of specific rights and entitlements under the Act. 9. 10. Respond to enquiries for information and provide counsel on other community agencies and services. Act as an interpreter and translate correspondence as required. II. Substitute for the Claims Investigator or Senior Counsellor during absences, prolonged illnesses or vacation periods, as required. 12. Perform other duties as assigned. The qualifications for the position are also found in the job description. They include: REOUIREMENTS 1. 2. 3. Grade XI I I or equivalent Three years related experience Effective communicative skills and established ability to work with people. 4. Skilled in interviews, report writing and counselling. 5. Good general knowledge of the Board’s operations, would be an asset. 6. Must be able and willing to travel as required. -4- 7. 8. Additional language facilities would be an asset. Willingness to relocate according to Branch needs. The grievor and one other employee applied for the position of Claims Counsellor.’ Both were interviewed by John Lawson, Senior Claims Counselfor in the North Bay office. The interview with Sandford occurred on February 15, 1978 and took approximately one hour. SubAequently, Lawson prepared a report, based on the interview and Sandford’s past performance, recommending that she be denied the promotion. His reasons were several. First, he mentioned that there was some doubt about her educational qualifications. While she stated that she met the Grade 13 requirement because she had Grade 12 from,Quebec, Lawson noted that her . application form stated that she had Grade 12. Her explanation was that she lied on the form in order not to appear overqualified for her original stenographer’s job. Lawson also mentioned her ability to speak English and French as an apparent asset. Secondly, he dealt with the requirement of three years related experience. Lawson felt that this requirement could be satisfied only if the grievor had three years of experience in communicating information to the public and relaying information to headquarters in Toronto, as these were important activities of the Claims Counsellor. He felt that the work of a Claims Receptionist Counselfor met this requirement, as it provided some opportunity to deal with enquiries. The griever had filled that job for only one year. Her earlier work as a Stenographer was not “related” -5- experience in his view. Thirdly, Lawson discussed the grievor’s communication skills. She appeared to be at ease in dealing with clients personally, although there had been a few complaints in the past about her manner on the telephone. These had been corrected. However, this past problem plus her inexperience in ryport writing lead to a negative finding on her qualifications under this requirement. Fourthly, there was discussion of the griever’s ability to trawl, which was required about four days a, month to service offices in New Liskeard and Kirkland Lake. Although she indicated a willingness~ and ability to travel, -Lawson expressed doubt about her sincerity because of her marital and family status. Mrs. Sandford is married and has two childFen. Fifthly, her general knowledge was rated insufficient for the job. In addition, reference was made to her ,attendance record, which Lawson regarded as “rather high” - 13 days and 2Y, hours in a one year period. Lawson testified that he took into account the grievor’s past performance, referring to an evaluation dated June 7, 1977 (Ex. 19) in which he had expressed dissatisfaction with her performance. As well, documents dealing with the griever’s performance were introduced, showing various areas of criticism, such as telephone manner and maintaining a personal “miscellaneous” file contrary to Board practice. -6- The report of February 15, 1978 was followed up by two memos to George Picken, Manager, Claims Information and Counselling. Both dealt with Sandford’s educational achievements. Picken had instructed Lawson to ask Sandford for her graduation certificate, and these written memos documented conversations between Lawson and Sandford pertaining to the certificate, which Sandford said had been stolen. She told Lawson that she was trying to obtain a replacement, but had not done so by March 15, 1978. Her explanation, in evidence before this Board, was that the Quebec school which she had attended had been taken o&r by a new order of nuns and her records could not be found. In one memo, Lawson also commented unfavourably on the fact that Sandford’s daughter spent two and a half hours in the staff.lunchroom one day after a doctor’s appointment. This, to him, was evidence of Sandfords restricted mobility, should she become a.Claims Counsellor. Subsequently, George Picken recommended to the Director of Claims Information. and Counselling that neither Sandford nor the other candidate should be appointed. His report (Ex. 22) seems to rely heavily on Lawson’s report and memos with regard to Sandford’s gualifications. The result of these recommendations was notification to the grievor on March 22. 1975 that she was unsuccessful in her bid fat promotion in that she failed to meet the basic requirements of the position. In fact, neither applicant was selected. The Claims Counsellor job was withdrawn ,in June, 1973 and replaced by a Claims Receptionist CounseUor job through a change in staff requirement. The Claims Counsellor position was not reinstituted until . . -7- April, 1980, when the number of complex claims necessitated the change. By, that time, the grievor had been demoted to a stenographer’s position and.transferred back to Sudbury. This occurred in June, 1979. The grievor claims that she has been unjustly denied the promotion contrary to Article 5 of the collective agreement. Subsection (5) is of most relevance to the grievance. It reads: i’ 5. Role of Seniority in Promotions and Transfers Both parties recognize: (a)The principle of promotion within the service of the Employer. (b)That job opportunity shall increase in proportion to length of service. (c)That the primary considerations in filling a vacancy are qualifications and ability to perform the required duties. td)Therefore, in making staff changes, transfers or promotions, where qualifications and ability are relatively equal, seniority shall be the determining factor. The grievor argues that. she has been the subject of mjust discrimination in her employment with the Workmen’s Compensation Board and, in particular, in relation to this promotion. She testified about her employment history, from its beginnings in Sudbury to the time in North Bay prior to the job competition. She first alleged that she was Lnfairly -a- treated because she had been a union steward in Sudbury. This activity, she said, had caused the North Bay administrator, <Mr. Little, to resist her request for a transfer from Sudbury to ‘North Bay in August, 1976. However, she did obtain a transfer in late October of 1976. She testified that she had continuous difficulties with Little, especially as she had applied for and obtained a promotion from Stenographer to Claims Receptionist CounseUor in February, 1977 without his knowledge. Throughout her testimony the grievor expressed the view that various supervisors had treated her unfairly or dbcriminatorily - whether Little, Boody (hjs successor), Lawson, or the supervisor who ran a training course in Hamilton which she was required to attend in September, 1978. The grievor also testified that she was qualified for the Claims Counselfor job, stating that her educational background was equivalent to Grade 13, that she had three years related experience with the Board, and that she was willing and able to travel. In assessing the evidence, this arbitration board must decide whether the grievor possessed the qualifications and ability for the job which she sought, provided the requirements set by management were reasonable for the job.. As the Claims Counsellcr position is one requiring interviewing skills, an ability to convey information about The Workmen’s Compensation Acs and an ability to deal with claims files, the requirements of writing and communication skills, education, and knowledge of the Act listed earlier appear reasonable, and Sandford did not attack them. Rather she focused on the issue of qualifications and argued . -9- that she met the specified requirements, but was treated discriminatorily in the application of those requirements. After considering the evidence, we have found that Sandford failed to meet the qualifications for the job. Her educational qualification was in some doubt, although that need not be determinative here. She . . lacked the necessary experience in tasks sufficiently related to the Claims Counsellor job - that is, interviewing clients, report writing, dealing with claims files in relation to matters other than rehabilitation. Furthermore, it appears that the griever’s work and attitude, in Lawson’s opinion, needed improvement. Sandford denied this, yet there is some difficulty in accepting this testimony. In giving her evidence, she often evaded questions posed by counsel for the employer with regard to her work performance and, when pressed for an answer about criticisms of her performance or doubts about her qualifications, she tended to blame supervisors or others for her problems, rather than admit any deficiency in her performance. Finally, the grievor herself admitted in cross-examination that she did not meet the standards of the Workmen’s Compensation Board for the Claims Counsellot job, although she argued that she could adapt if given the opportunity. As the griever failed to meet the qualifications for the job, her grievance is dismissed. There is no evidence that the grievor was denied the job because of union activity or personal ill will towards her on the part of her supervisors. - 10 - Before closing, the Board wishes tb express some concerns which arose in the hearing because of the manner in which Sandford’s application for promotion was considered. It appears that Lawson and Picken, who wrote the determinative reports with regard to her application, relied on certain considerations which seem inappropriate to the outcome of the job competition. In particular, we were disturbed by the comments with regard to Sandford’s ability to travel, the .implications drawn from her child’s visit to the office, and the negative references to her attendance record. With regard to the latter, her absences totalled thirteen days,~all me?lically justified. The office average was about nine days a year. Therefore, Sandford’s record was not a serious departure from the norm. She also testified that the Leason for her absence was a congenital defect in her hip which was corrected through surgery. Therefore, reliance on this consideration seems unwarranted. Similarly, the skeptical attitude in Lawson’s and Picken’s reports towards the griever’s expression of ability and willingness to travel demonstrates a close-minded stereotyping of the applicant because of her family status , rather than an open and fair consideration of her personal circumstances and plans, should she obtain the promotion sought. While these observations should not have entered into the reports on the griever’s qualifications, they do not affect the outcome of the grievance. Mrs. Sandford failed to meet several of the qualifications required for the Claim Counsellor job. Therefore, her grievance is dismissed. -II- DATED at Toronto this 8th day of July, 1981. r Prof. K. Swinton - Vice-Chairman “1 dissent” (See attached) Mr. R. Russell - Member ” It 4 &/,wf , Mr. D. 8. Middleton - .Member DISSENT Claire J. Sandford and Workmen's Compensation Board I have read the draft of the Chairman, Prof. Swinton and I regret I cannot agree with the conclusion set out in the draft ,award. Therefore, set out below are my differences regarding the draft award. r This case was somewhat unusual in that the grievor was obliged to represent herself in that the Union did. not have a representative attend the hearing. On the other hand, the employer used the services of a trained and experienced lawyer. Consequently, I feel the grievor was somewhat at a disadvantage in clearly presenting her case. I tend to believe the evidence of the grievor that Mr. Little, her North Bay Administrator,was opposed to the Union and as the grievor was a union steward this worked against her. Moreover, from the evidqnce I conclude %r. Little passed on his bias when the grievor did obtain a transfer without Mr. Little's permission or knowledge. Two matters must be taken into consideration by the Arbitration Board: 1. Did the grievor have the ability and qualifica- tions for the job she was seeking? 2. The language of the Collective Agreement. Article 5. - t ;2- I cannot agree that the grievor did not meet the qualifications for the job. In my view a good deal of weight was given to Lawson's opinion that the grievor's attitude needed improving. The company stressed picayune matters, such as saying they could not satisfy themselves on her education records or that she was absent a total z of 13 days 23 hours in a whole year which Lawson charac- terized as high or that the grievor's.daughter once spent 2+ hours in the lunch room waiting for her mother after attending a doctor's appointment. These' few illustrations are only some of the small matters that influenced manage- ment's opinion. It is interesting to note (again by way of example) that despite the grievor's clear statement to management that she was willing to travel, management used as one of the reasons for denying her the job that because her child spent 2+ hours waiting for her once in the lunch room, this was proof she could not travel. On the other hand, the management played down such an important attribute possessed by the grievor, namely her ability to converse, read and write in Canada's two official languages. For the interview work required for the job she applied for bearing in mind the geographic location of Northern Ontario; this was a tremendous asset. But the management played it down as unimportant. It would appear that the grievor met the require- ments of the Collective Agreement, Article 5 and I parti- cularly note 5(b) "That job opportunity shall increase in -3- proportion to length of service". I tend to accept the fact that there has been some discrimination against the grievor in regard to this promotion. While the grievor may have lacked some experience in related work to a claims counsellor's job, this did not mean she could not do the job. Rather than set,out my views in detail as to why I believe management subjectively decided against giving t,he grievor the-,job she applied for, namely Claims Information and Counselling,and why I believe discrimination influenced their subjective determination, I point to Exhibit 22 as one illustration of this. I have read over the evidence and referred to the ,exhibits and the conclusion I am obliged to arrive at is that the-role played by the grievor during the union organ- izing campaign and her subsequent acceptance of the position of union steward, made a lasting impression on her super- visors which made it difficult if not impossible for them to view the grievor and her work record objectively. I would, under the circumstances grant her the promotion she sought. This'would date from the date of the grievance, namely, April 7, 1978. K. K----y I R. Russell I