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HomeMy WebLinkAbout1979-0139.Saras.80-11-05. . ..T,:i:. 1;. ,:, ;!z< ONLVXO CROWN EMP‘OYEES GRIEVANCE S&EMENT 139/79 (‘7 . . :- . ,t- - ~- \ IN THE MATTER OF AN ARBITRATION "Under The CROWN EMPLOYEE.Si COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. Thomas..Saras and 2~‘~ Before: The Crow in Right of Ontario (Ministry of the Solicitor General) Mr. E. B: Joil~iffe, Q.C.j Vice-Chaibain F. T. Collict, Member Mr. G. Beaulieu, hlember For the Grievor: Mrs. L. Stevens Ontario Public Service Employees Union, For the Employer: A. H. Schaefer Civil Service Commission Hszrinq: September 24th, 1980 ._ -2- This c.ase turns on the interpretation and application of ~. Article 4.3 in the C.ollective Agreement between the Ontario Public Service Employees Union and the;Crown in right of Ontario, Exhibit 1. It is as follows: . In filling a vacancy, the Employer shall give primary consideration to qualifications and abilfty to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a coixsideration. I-n his statement of grievance dated May 14,*1979, it, was said by Mr., Thomas Saras:. I applied for the position of cleaner foreman. Subsequently I,was informed by letter, dated May S-79, that another person was selected for the position. I now grieve that the selection was not made in accordance with Article 4.3 of the Collective dyreeqent. The settlement required was as follows: : That the position be re-opened for competition and that the position be filled in accordance with the terms of the collective dgreement. At the hearing of this case, however, it was stated by Mrs. Stevens on behalf of the griever and by Mr. Schaefer on behalf of the employe,r that if this Board finds the~competition complained of to have. been invalid, it would not be appropriate to direct that another competition be held and the proper course would be for the Board to.make a finding on the merits of the grievor and the other competitor, having due regard to the provisions of Article 4.3. . ._ -3-. . In brief,. the case for the grievor is that his "qualifications and ability" are manifestly superior to those of Mr. John Bonnet, while the employer's case is that their "qualifications and ability to perform the required duties" are "relatively equal", so - . that the position must be awarded to the candidate with the greater "length of continuous service", i.e. seniority, which would be Mr. Bonnet. As the successful candidate in the 1979 competition, Mr. Bonnet received due notice of the~union's application for a hearing by this Board, and he was also called as a witness by Mrs; Stevens.. His testimony may be summar;zed as follows: He is 53 years of age and believes his schooling was the ,equivalent of Ontario's grade 8.~ On arriving from Malta in 1963, he irnnediately found a job at the Court House in Toronto as a cleaner. Responsibility for the work was assumed by the Province about 1968; thereafter he served with the Ministry of Government Services and then the Ministry of the Solicitor General at various locations, and for the last three years in an Ontario Provincial Police building at 125 Lakeshore Road, Toronto.:.There,~he,,worked, as he sti~ll:does, from 4 p.m. to 12:30 a.m. with three other cleaners. Before being sent to 125 Lakeshore (being then classified Cleaner 2) he was told he would be in charge of the night shift and responsible for-showing or telling others whatto do and how to do it. According to him, he was promised more money for being in charge but received -, no increase until he won the competition in 1979 and became a Cleaner 3. When there was special or extra work to be done (such as periodic cleaning of Venetian blinds) he had to supervise additional workers temporarily ‘, ._ -4- ; . assigned from other locations - both before and after his promotion. In 'April, 1979, the newly-created position of "Clegner Foreman, Night (Cleaner 3)"was posted, and Mr. Bonnet applied. In due course he was interviewed by Mr. H. M. Saudino (the 0:P.P. supervisor of building services) and a lady he did not know. He had sometimes seen Mr. Saudino but had never talked to him previously. (His immediate superior was and is Mr. J. Klimowski, who is located a few.hundred metres away at 90 Ha'rbour Street, the O..P.P. headquarters). Mr. Bonnet recalls. that his intervjew with the Selection Board lasted about.25 minutes, that he was n not asked questions about how he would train new staff, and that Mr. Saudino (who seemed to know what his experience was) said "You do a very good job there." Mr. Bonnet explained that his duties included that of ascertaining k/hat supplies were needed for the cleaning routines at 125 Lakeshore. He would regularly take an order on "a piece of paper" to headquarters at 90.Harbour Street, and his needs would be met within a day or two. This was among the responsibilities he had both before and after his promotion in 1979. He believed that his long experience as a cleaner made him thoroughly familiar with cleaning materials and their 'pi. proper use. He had never.received a reprimand or any other kind of discipline. In cross-examination, Mr. Bonnet said he carried his seniority with him when transferred from'employment by Metro to employment by the province. He thought that for 18 months before April, 1979, he -5- i ‘i:& "didn't do anything different" from what he does now. There were about 50 cleaners at 90 Harbour and. 125 Lakeshore,~of whom (according to his estimate) ~" only two have English as a first language, but he felt he could communicate with them in his own way and had not received any complaints about his work. . 'He thought about 25 per cent of his~time isspent on "foreman's duties" and the rest'as a cleaner. He distributes pay-cheques to his group and also ~handles vacation applications which go to 90 Harbour for review. Mr. Bonnet said he replaces his superior, Mr. Klimowski, when the latter is away. This means acting as night supervisor at both 90 Harbour and 125 Lakeshore, a function he has performed only since being promoted. '. Referring~ to.the grievor, Mr. Bonnet said he had worked with Mr. Saras for more than 'a-year (about 1975 or 1976) at 90 Harbour, and "he's a good worker". The grievor, Mr. Thomas Saras, testified that he had begun at 125 Lakeshore as a Cleaner Helper in 1971, but with others was promoted to Cleaner 2.lhen Mr. Bonnet was transferred from 8 York Street, the.grievor "was sent there as group leader" for eight months, but remains a Cleaner 2. He now works nights at 90 Harbour and on occasion has replaced Mr., Klimowsk (who is classified Buildings Cleaner 3) as night supervisor. As for his qualifications Mr. Saras sajd he had attended the University of Salonika in Greece; he speaks English fluently, Greek, Italian and French, and understands Spanish. In Canada he had taken the St. John Ambulance course, instruction in teaching, and a French language course :. ._ ,-6- sponsored by the Civil Service Cormnission. Recently he took a "hospital housekeeping" course conducted by the Ontario Hospital Association. To ' improve his knowledge of cleaning materials and techniques, he has also P taken courses at George Brown College and is now taking another. Nevertheless, - . he said, his competition interview with Mr. Saudino and another person had lasted only about six minutes. Mr. Saras referred to considerable experience in other fields. He had worked, he said, in a Greek bank and also as a manager in a shoe plan,t. He has studied business management and real estate, qualifying as a member of an Appraisal Institute. .He is active.in the private sector and thus receives literature from the cleaning materials industry. He was somewhat critical of purchasing practices and said that many times workers have tested and reported unfavourably on new products. High-speed machines were in use and there had been~ a bad accident rate. Supervisors had a responsibility, he said, to report accidents, and if a worker were not sufficiently familiar with English or the Board's requirements, he could fail to receive benefits from the Workmen's Compensation Board. In cross-examination, Mr. Saras contended that the position of "Cleaner Foreman, Night" (Cleaner 3) was "managerial", or at least the first rung in the ladder to management rank and therefore very important to him. The St. John Ambulance course was required of supervisors, and he had taken it. The George Brown courses were "eight hours a day fir one month"; he had taken them at his own expense and on his. own time. He declined to assess Mr. Bonnet's performance, but believed he himself had more experience and more skills. ._ :’ 7 - i ‘. Mrs. Isabelle Rodzinski was also called as a witness by Mrs. Stevens.-'She has been a Cleaner 2 on the day shift since 1975 at 90 Harbour and also cleans the ladies' rooms at 125 Lakeshore at igast once a day. As a convenience, she frequently carries notes between the - . two buildings - - such as the day Foreman's requests for supplies - - and delivers time sheets and pay cheques. She seldom sees Mr. Bonnet now, but had worked beside him for six years in earlier times at other locations. "We are friends," she said, "but he made life difficult for me," Recently, she testified, Mr. Bonnet had asked for certain supplies I and was told they had already been sent. The only witness called by the employer's representative was Mr. Hugo Martin Saudino. Since 1977 he has been supervisorof all , building services for the O.P.P., including the headquarters building at 90 Harbour and the neighbouring building at 125 Lakeshore. : These had formerly .beencared for by contractors,-but the. other buildings had been -under his supervision from 1967 to 1977. He now has in his care 192 buildings across the province, including all O.P.P. detachment offices and district headquart&. He visits them regularly but must entrust supervision to others. His principal function is to establish standards and see to it that they are maintained. In 1977, he explained, some cleaners were transferred from --9O Harbour to 125 Lakeshore, "including Bonnet, who acted asp crew chief, and was linked to Klinnwski, who controlled supplies." He went on to say that when the Building Superintendent, a Nr. Isakov reached retirement, it was felt that "we could do without his job, but required a supervisor-at a lower level - - primarily a cleaner's job with an el~ement of supervision ._ -81 . .,,” and a bit of'stock control." He thought the supervisory element would involve not more than two hours a day. Mr. Saudino was examined and cross-examined at length about Exhibit 3. This was a statement of job specifications for the new - . position of "Cleaner Foreman, Night" (Cleaner 3) approved in March, 1979. Its stated purpose was "to provide group leadership for the night staff enga9ed~'in cleaning and servicing duties within O.P.P. General Headquarters Buildings and to assist and participate in the work." ;'- .Referring to Exhibit 2, the posted notice of a competition for the new position, Mr. Sa~udino said there were only two :$: applicants. Both were interviewed and questioned by himself and Mrs. Chris E.urchell~, aapersonnel officer, There were no formal appraisals on file, abut he knew both men were very good cleaners, there had been :no complaints and no problems in respect of either. He did not have prepared questions, but found both men's knowledge of equipment was "very competent.". As for experience: "One had unofficially served' . as team leader-t-.,the other had not on our flle~had any supervisory experience." Mr..Satiino produced Exhibit 4, a hand-written document entitled "Selection Criteria" prepared by Mrs. Burchell. He said their. "overall conclusion': was that the merits of the two candidates were -: "so close that it was impossible to choose one over the other; hence we relied on seniority". The result, he said, had been satisfactory; it was no longer necessary for Mr. Klimowski (the night supervisor) to visit 125 Lakeshore more than a few times a week. .- -9- In cross-examination Mr. Saudino'said it was not possible to pay Mr. Bonnet as an acting crew Chief prior to 1979 because no such P position existed on the establishment; Mrs. Burchell's knowle~dge of. the candidates had been gained "fromthe.interviews and from me." 'He said he did not know when Exhibit 4 (the "Selection Criteria") had been written, but it wasp "definitely given to me after the competition." It represented. the questions he and Mrs. Burchell had in mind at the time of the interviews:;~ he could not recall whether all the questions were actually raised. He did not formally add up points for each candidate. There was no opportunity to investigate.their educational background. His information~ came "mainly from others" because tie did not often see Mr. Saras or Mr. Bonnet. If the former claimed he had previous : supervisory experience there was nothing on file to support it and the 'onus was on him to prove the claim. He.admitted there was also nothing on file to support Mr. Bonnet's record as a "crew chief". He recalled that both men had been present at a demonstration of a new product. When re-examined, Mr. Saudino said the "communication skills" referred to in job specifications related to the need to impart .knowledge to'inexperienced workers, it being necessary to train people with a very limited knowledge of the English language. He said: ~ ."I don't think when~you are dealing-with people at the caretaker level, it's important to have a good education. They are mostly immigrants." Mr. Saudino did not agree the interview with the grievor had been as brief as six minutes. He thought it was between 25 and 30 minutes. ~ . , 4 ,_ - 10 - In argument, Mrs. Stevens said her approach was based on this Board's decision in Remark, 1@/77; and the two decisions in Quinn ,- g/78.. The evidence here supported the allegation that a fair and impartial decision had not been made. The Selection Board consisted of one person who knew neither candidate: and another person who knew one man better than the other. There was no help in the files. Mr. Saudino knew much about Mr. Bonnet but did not investigate the other man's qualificat’fons Perhaps both meet the requirements of the job, but the evidence showed Mr. Saras to be superior in theoretical and practical knowledge as well as in the communication skills required by the job. Mr. Schaefer on behalf of the employer argued that Article 4.3 emphasizes not only qualifications but ability "to perform the required duties." Here the grievor did have some superior qualifications, but they were not of a kind required for the job. He said the griever's, "level of education and skills in communication exceeds that which is $equired." Citing the remarks of.Mr. Weatherill in Great Atlantic A.&P. co. and Canadian Food and~Alli.ed Workers, Locals 175 and (1979) L.A.C. 2d 444 at p.446, he urged that in applying the concept of what is "relatively equal", one must have regard for the nature of the job to be done. There was an onus on the grievor to show "substantial" superiority; minor differences were not sufficient. In this case; said Mr. 'Schaefer, the employer had not been arbitrary, unreasonable or discriminatory; the evidence showed that the candidates~ were "relatively equal" in merit, and it followed that Mr. Bonnet's greater seniority must prevail. In reply, Hrs. Stevens said the employer had an obligation -,ll - to select the "best possiblecandidate", which she submitted had not been done. She insisted she had not dwelt on the grievor's university education, but ratheron his superior ability to corrrmunicate, the importance of which, appeared in the job specifications. . It is clear from the language of Article 4.3 and from . previous decisions of this Board that if the grievor has proved superior ~. qualifications and ability to perform the required duties, then seniority : is,not a factor and he is entitled to the job. Thus the issue in this i case is whether such superiority has been proved. That being the real issue and the parties having stated that it ,is now for this Board to make a decision on the merits, it is not really~necessary to assess the validity of the procedure in the competition conducted on behalf of the employer in April, 1979. We cannot refrain from commenting, however, that we doubt it met recognized standards. The written "selection criteria" were not before Mr. Saudino and Mrs. Burchell when they interviewed the two candidates. There were no appraisals available. If the Selection Board had files there isno evidence that they contained any.significant information. No real effort was made to inqui.re into the supervisory experience or capacity of either man. Mrs. BurchelCs knowledge of both was limited to what she learned at the interviews and what Mr. SaWino told her; his knowledge was, he admitted, largely second-hand or based on general impressions and rather infrequent encounters. There do,not appear to have been any written reports from other supervisors, although both men had.served under supervisors at 8 York Street, 190 Harbour and elsewhere. We.are not persuaded that the compeGtion was taken seriously; on the contrary ._ - 12 - the' procedure seems to have been superficial, perhaps because the position was neither highly skilled nor highly paid (the advertised rate being "$5.54 to $5.72 per hour, under review") or perhaps because of the"hints or promises Mr. Bonnet had been given in 1977 that if he served for a'time . as a crew chief at 125 Lakeshore, he would eventually get a little more money. .~ We turn briefly,to the "selection criteria" which Mr. Saudino says reflected his approach at the interviews, although he did~ not see them in hand-written form until later. These criteria, Exhibit 4, are as follows: Selection Criteria (1) Supervisory Experience - Demonstrated ability to direct and manage subordinate staff (2) Cleaning Experience - Minimum of 3 years preferably more (3) Knowledge of Cleaning ‘Yethods - and.Materia1.s - Must have cur&t knowledge and ability to instruct subordinate staff in usage and care (4) Knowledge of Supply Control and Maintenance ~- Nust demonstrate qood knowledge of supply adcess, distribution and maintenance. ._. I (5) Communication Skills - Ability to understand instructions and to instruct junior cleaners In his testimony, Mr. Saudino,said the,selection board "didn't go too deeply" into No. 5 above - - - "comnunication skills," but considered Nos. 1 and 3 to be the main criteria, although Nos. 2 and 4 were also important. In his final answers to this Board, Mr. Saudino summarized his assessment of the two candidates according to the five . - 13 - . criteria 'above: Nb. 1 - "Pretty well equal" No..‘! - "Equal" No. 3 - "Pretty well equal" No. 4 - "Bonnet controlled a stock room at the time. Saras had s,tock room knowledge from his course at George Brown College." No. 5 - "Both adequate". .,... ,:. Thus the result, in Mr. Saudino's opinion,was a draw. This Board's view is that more.appropriate criteria are to be,found in the job specifications approved some weeks before the competition, which (unlike the "Selection Criteria") had obviously-been prepared tiith care and thought. We have had the advantage of considering the explanations given by Mr. Saudino and the very full testimony of both Mr. Bonnet and Mr. Saras - - - all in the light of the specifications clearly set out in Exhibit 3 as the "required duties." Parts 1 and 2 have already been mentioned. Parts 3 and 4 of the job specifications are as follov+s: 3. Summary of Duties and Responsibilities (Indicate Percentage oft time spent on each significant function. Indicate scope, eqiiipment, working conditions unusual features etc.) 1. Supervises and participates in cleaning and servicing duties by: -receiving and issuing cleaning supplies; reporting apparent undue use to supervisor; -training staff,~ demonstrating new equipment and cleaning techniques; ; -checking work, instructing and advising as required; visiting employees in different locations to ensure the maintenance of hiyh standards of performance and cleanliness; -rexrtinq anticipated or current absence to supervisor; 85% -assigning duties and re-scheduling to cover absences, workload fluctuations etc; advising supervisor of personnel problems such ~' as persistent absenteeism, negligence, etc. -making recommendations for changes in procedures as appropriate: -preparing tentative.vacation schedules for approval; -distrib;tiny pay cheques to night cleaners; -ensuring that staff report and leave at appointed times, recorrnendiny early dismissal or yranting time off in special ,’ . . 2. . 10% 3. 5% - 14 - circumstances during supervisor's absence; - participating in cleaning and se&icing routines; dealing with special cleaning problems; - ensuring adhere&e to safe work procedures; Performs related duties by: -testing new cleaning products and, techniques; -reporting repair needs such as broken windows. or locks, plugged.drains, damaged or non working electrical fixtures, etc; -investigating and reporting any complaints or occurrences including accidents, inj~uries or damage; -replacing supervisory during absence; Performs other related duties as assigned. P 4. S~ILI.5' AND KNOWLEDGE REQUIRED TO PERFORM THE WORK (State Education, Training, Experience etc.). Preferably ~Grade 8; good knowledge of cleaning equipment, materials and methods. Several years related experience. Leadership qualities; ability to apply general “instructions and to assign and re-schedule duties. It'will have been noted that the summary quoted above assigns weights of 85 per cent'to paragraph (l),, IO~per cent to paragraph (2) .~ and 5 per cent to paragraph (3). These were not reflected in the so-called "selection criteria", Exhibit 4. In presenting the case for the grievor, Mrs. Stevens emphasized that "conununi,cation skills" are involved in most of the duties specified above, whether it be in training, instructing,~ making recommendations or reporting on various matters., On that basis she pointed out that Mr. Saras is exceptionally articulate, with .an excellent comnand of language, as he demonstrated at some length when giving testimony. On the other hand, Mr. Bonnet also testified at length before this Board and demonstrated that he is not lacking in ability to express his thoughts, although notin the same way and certainly not with the same eloquence, as Mr. Sarai. ._ j E j . - 15 - Apart from "communication skills", both candidates had ample experience as cleaners;both were knowledgeable about materials and 'P methods .I both had unblemished records. It is common ground that both , were capable of meeting the requirements of the position. .The question is whether the superior education, speaking ability and legitimate ambitions of Mr. Saras are of sufficient~ importance in - this particular case to negate the employer's belief that the merits of the two men are relatively equal. If the competition were for a position with much more demanding requirements, no doubt the education, experience and other qualifications of Mr. Saras would stand him in good stead. It does not follow however, that they make him demonstrably, substantially or significantly superior in "qualjfications and ability to perform the re~quired duties.!' We cannot accept the theory that "the best man must always win," because that is not the complete meaning of Article 4.3.. The proper tests must ..':I, : .l, always be related to the requirements of the position, which in this case is that .of a Cleaner 3. Even if the grievor were a Ph.D. and an Olympic prize-winner with a distinguished military record,-we would not, consider such factors to be decisive or even relevant, having regard to the -I. .~.. "required duties" spelt out in Exhibit 3. Those.duties are not of a kind associated with management or even those of a "foreman" in the usual sense of the word. 2 On all the evidence.placed before us, particularly in the light of Exhibit 3 and the testimony of both Mr. Saras and Mr. Bonnet, this Board is of the opinion that their "qualifications and ability to perform the : required duties" of the position are "relatively equal" and that therefore - 16 - - . the grievance cannot be upheld. Notwithstasding the result in which the grievance fails, we deem it proper to add'that Mr.: Saras clearly has a wide range of qualifications and abilities which should be recognized. He has ,demonstrated a keen interest in selfldevelopment and in futur.e firomotion and has taken initiatives to increase his knowledge and skills. He has expressed strong interest in a management career within the-Ministry, and it does not seem reasonable that he be limited to the role of a Cleaner 2 or Cleaner 3. .In~ our view, he should be encquraged by way of counselling and by consideration in compeiitions for future promotion in the field of cleaning and caretaking or perhaps in some other field where his energy and talents could be fully utilized. .Edward B. Jolliffe, Vice-Chairman I concur F. T. Collict, Member I concur G. Beaulieu Dated at Toronto this 5th day of November, 1980