HomeMy WebLinkAbout1980-0628.Eacott.82-01-08IX TSE MATTER OF AN AR3iT3rIl'll
UnderThe
CSiM WLOYEES COLLECTIVE S,%?GkIAING AC?
Seicre
THE r;RIE\IA;!CE SETTLEWY BOX?"
Eetween: ..“. ‘. OPSEL! (John IsI. Eacottj
Before
and
The Crown in Xi:ght of Ontario
Tine Min;stry of Edccation
E. 8. Jolliffe, Q.C
A. G. Stapleton
M. Perrin
Griever
Vice-Chd+men
!?ember
ilember
For the Grikor:
G. Richards, Wevance Officer
Ontario Public Servlice E,Tglsyees snion
For the Emoloyer:
C. F. Murray, Counsel
Hicks I!orley Hamilton and Storey
ilearing:
April 27, 1981
D E C I S 1~0 X
This case arose because the grievor, Nr. Jchn
M.~ Eacott, wasnot appointed to a position as Education
Officer in the Central Ontario Region of the Ministry o.f
Education. His grievance of August 7, 1980 was as follows:
in respect of the Collective Agreement {n
jorce at ‘cessation of employment I w<sh it. kn9*Jr.
that- I ho’vd all 0~~ the criteria reyztired for a:n
appo<ntment for which I a?pl<ed unaer secziozs 24.4.1 a 3 b Icnd~‘sectior. Zala.5). ,“he lizion ‘\ and I have been distiriminated aga<nst because I
did r.ot receive the ?ositioE of sdz~cc:‘:ox ~,~.~<ce.n
with the CentrcZ Zegionat 3,;;'ice, kfb,nts*r'~ o.?
education.
The "Settlement Required" was stated in the
following words:
Appointment to the position or to any other
mutually acceptcble position uherein a sctarz
equ?:vaZant to my former salary as ?4asLar, Fecchers
Colleg’e shall be paid. Said appointment to be maze
Yithin 60 isiztyl days of settlement.
The references to certain provisions of the
C~ collective agreement~which appear above must have been
made in error. There is no Article 24.4.1 and there is
.no. 24.4.3.. Presumably the grievor was referring to
24.14.1 and 24.14.3,. These are the provisions on which
the grievor's representative, Mr. Richards, relied at the
hearing by this Board, and the employer's representative
MS. ,Murray, said she was content to have the grievance
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argued on the basis referred to by him. There was scme
discussion at the outset about the relevance or effect
of certain revisions, Exhibit 3, but Ms. Murray said she
wasp withdrawing her argument in that connection.
The grievor had been employed as a master at ,..
the Ontario Teacher Education College in Toronto from
September, 1969, until November, 20, 1978, when notified.
he would become a "surplus" employee in 1979. Subsequent
to notice he actually worked until August 31, 19i9, when
(in common with other masters at the College) he was laid
off.
In February, 1980, the grievor wrote +&e
"Supervisory Officer's Certificate Examination" conducted
by the Ministry. He passed that examination and received
the certificate;
In June, 1980, the grievor was notified in an
"Opportunity Bulletin* that the Ministry required two
Education Officers in the Central Ontario Region "to ensure
Provincial policies and guidelines (Kindergarten to grade 13)
are reviewed and applied effectively." Qualifications were
stated to include a de'gree from a university of recognized
standing with a valid Ontario Teaching Certificate, progres-
sively responsible experience in the education field with demon-
strated communication abilities, knowledge of the legal aspects
. ,
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.'I
of education, and the ability to interpret educational
data, extensive knowledge of the education field with a _
background in mathematics or history "an asset." Al.50
required was "proven ability to corrimunicate with school
board officials, teachers, various organizations and the
public." The grievor duly made application on June 13,
1980, was interviewed,, and informed,a little later of
his rejection.
As already indicated, 'ihe grievance iJas founded
on the provisions of Article 24.14.1 in the collective,z~ ~~ .-I_
agreement, which was the same in the agreement effective
in 1980 as in 1979. It is as follows:
24.14.1 Where an empZoyee whg has had at Zeasf
one year of continuous service is re-
leased and his former position or another posiSior.
car which he is quaZified becomes vacant Cn his
kinistry within one year after release, notice of ~’
the vacancy skatt be forwarded to tke emvloyee at
leas~t fourteer. (14) day.s prior to its 3e’ing fiZZed
and he.~ shaZZ be appointed to--the ?cccncy if,
c al he appZies thzrefor within tke fourteen
(141 days and,
,bl no other empZoyee who has similcr quc3ivT3- cations and a ,greater length of continuous
seraice applies.
Nr. Richards said he also relied on.the
reguirements of Article 24.13, as follows:
24.13 I' ts xndarstood S;lct wha,: it <s
necessary to CSS<.-~ sur~Z;rs an~l<~a~s
in cccoricnce rzic;I this ..lr:1232, ; rA 2 -7 r 0 t, i s -- 2 -. 5 . 0; Articla 4 snczt not c:F:?.
I’
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I I
It is apparent that the vital words in Article,
24.14.1 above~are: "another position for which he is
qualified,"
To establish his qualification, Mr. Eacott set
out a number of facts in the resume'accompanying his
application. On these he expanded in the course of'
giving testimony before this Board. The undis?,uted facts
may be summarized as follows:
1, The grievor graduated from the London Teachers'
College in 1960. He also obtained a three-year B.A. de'gree
from M&laster University in 1967, his major subject being
Geography with some emphasis on History. His work experience
included three years of elementary school teaching at
Burlington, six years as an elementary school principal in
charge of classes from Kindergarten to grade 8, with ,a
staff of 14,' at Innerkip, Oxford County. There followed
his decade as a master with the Ontario Teacher Education
t. College in Toronto, instructing in methods of teaching
Social Studies and Science for the primary, junior and ..,~,
intermediate programs between the Kindergarten level and
grade 10. The grievor states that he spent up to four
months in each year supervising the field work of
beginning teachers and also taught courses to experienced
teachers who were taking summer retraining courses.
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As "related professional experience" the griever
mentioned the following. He was president (after holding
lesser offices) of District 11, Ontario Public School Xen
Teachers' Federation in 1966, 1967 and 1968. He was
president of Local 543, Ontario.Public Service Employees
Union (on the Toronto campus of Ontario Teachqr Education
College) connnenking ih 1978. While teaching at Innerkis
,.,, he had been the author of an "Oxford Study Manual" a text
for use in schools of the area, &'aling with its history.
He Chad an association over 18 years with the Boy Scouts of
Canada and.gave some years of camp leadership, attending
two world scout jamborees. He was a memberof the Assoc-
iation of Teacher Educators and of the National Council for
Social Studies. ,He has travelled widely throughout the
world and among his hobbies are photography, plant-breeding,
el,ectronics and local history as well as woodwark. The
grievor emphasises as a qualification his success in
obtaining a "Supervisory Officer's Certificate" early in
1980 --drafter his lay-off. ;.
In his testimony, the grievor pointed out that
while principal of the school at Innerkip he had been
obliged to deal with the East Zorra School Board and during
his last six months (after the consolidation of schools) with
the Oxford County Board of Education. At the'college in
Toronto he had dealt from time to time with school
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superintendents rather than Roards.
There was an open competition for the two
vacancies when Mr. Eacott applied. He felt it should have
been more restricted. A personnel officer told him that
,~.
200 had applied and advised hiin he wouid‘be "wise to look
elsewhere." He said~ the same personnel officer was-a
member of the selection board. His interview lasted about
45 minutes and his "feeling" was that a decision had
c already been made. In cross-exakination he could not
recall some of the questions alleged to have been asked.
He had no memory of telling Mr. Glendenning, directcr '
of the Ministry's personnel branch, that he was "qualified,"
but confirmed an assertion he wa's entitled to the job under
the collective agreement. He denied telling Xr. Glendenning
.,
he had failed to prepare adequately for'the interv-iew. He
., : conceded having~ told the selection board that in his o?inion
there was repetitive emphasis on Canadianstudies in the
c curriculumwhen .there were other possibilities.
The case submitted by the employer simply is that
in the unaminous opinion of the selection board the grievor
was not really qualified for the position of an Zducation
Officer in the Central Region.
Mr. Glendenning.testified that an ap~ointcent to
the level of an Education Officer 2 would be regarded as a
r
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promotion; there were greater responsibilities and t;he
maximum salary was $39,300 as compared with a maximum of
$31,800 for a College master, the position previously
held by the &ievor. The duties required working at a
professional level in Regional~ Offices, interpretation
of the policies of the Ministry, getting a "feedba'ck"
from Boards and Superintendents , iind above all ensuring
that the policies of the Ministry are duly carried out.
In cross-examination he said it was quite common prior (..~ _,'
to 1970 for masters to reach them Bducation Officer levei,
but not so common sin&'1970. Education Officers.usually
came from the ranks of experienced school administrators.
He estimated that of the College masters laid-off, 60 in
all at the Toronto and Hamilton campuses, about 15, or
one-quarter had been re-employed.. The competition held
in 1980 was "open,"and among the applicants were both
civil servants and school officials. He identified . A
t Exhibit 9 as a list of 10 applicants within the Ministry
or subject to recall, one of them being Mr. Eacott. Of
these, six were former masters at the College; the others
were ~civil servants. In Exhibit 9, -XL-. Zacott appears
to be fifth in order of seniority, The most senior in the
group, a Mr. McKay, had service dating from December 1,
1964, and he had been re-employed by the Yinistry in Zune,
1980. The second most senior had also been re-emoloved by - -
the Ministry.
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The other witness for the employer, Yr. ;chn
Storey, had been director of the Central Ontario Region
for the past two years. His wide range of experience
included some time as a master at the Hamilton campus
of the College.
Mr. Storey explained that the Central Region
deals with 46 Boards responsible for 2,700 schools, and
is the largest of six regions in Ontario. Because of
( its size, there are four superihtendents, .each supervising
12 Education Officers, as well as business superintendents
and one superintendent incharge of French-language schools.
The Region is also. responsible for background research on
capital allocations.
Mr. Storey said there were 153 applications for
the competition in the summer of 1980. The paper qualifi-
cations of the applicants were reviewed. Xost were
screened out; the selection board eventually interviewed
27 over a four-day period. .The Board developed selection
criteria and prepared questions to be asked, some or all
of which were put to the candidates. T~he selection board
had focused on question number 4: "what is your leadership
style?" He testified that "Mr. Eacott told us his style
was authoritarian and he chuckled about it," --- a quotation
previously denied by the grievor. The griever was also
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asked about the~curriculum, particularly Social St!;dies
and the guidelines for teaching History. According to
I Mr. Storey, the grievor was "not too pleased" with them
and would have favoured more world history in grades 7
to 10. Mr. Storey also said the grievor. did not seem
familiar with the resource papers available with the
guidelines.
As for poiicies of the Ministry, Ilr. Storey
testified the grievor was asked six questions and "did
not give satisfactory answers." For example, he was not
familiar wit% the system of "co-operative evaluation of
school systems," to which the Ministry attached some
importance. His answers in relation to the Kindergarten
regulations were not correct. He failed 'to show a know-
ledge of the capital grants system or of the way in which
an Education -Officer would be involved in the problems
which arise in that area.
c
,>_
According to Mr. Storey, "the main weakness of
the grievor was his lack of knowle~dge of the Xinist-y's
work and policies." He was also not satisfied that Lhe
candidate possessed the necessary "interpersonal skills"
such as tact, nor was he satisfied with the grievor's
attitude: "nothing seemed very important to him, there
was a high degree,of cynacism and a negative attitnde."
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His relative strength as compared with other candidates
had been assessed.
In cross-examination Mr.. Storey agreed that
passing the Supervisory Officer's Certificate examination
was a good sign and added that most Education Officers
possess the certificate. All of the 27 applicants inter-
viewed, including Mr. Eacott, had the "paper qualifications"
for the appointment,but the purpose of the interviews was
i to determine whether those qualifications could be success-
fully applied in practice.
Mr. Storey testified there was a short list of
four possible appointments among those listed on Exhibit 9.
These four names were submitted to the Assistant Deputy
Minister, and the qrievor was not among them.
Re-examined by Ms. Murray, Mr. Storey said-,
"frankly, I didn't think Mr.. Eacott could do the job at
i: all." Be added that his views were shared completely by
the other two members of the selection board.
In argument 18lr. Richards submitted that the
employer had proceeded into rrectly as though +his were a
competition under Article 4 of the collective agreement.
He was referring to 4.3 which is as follows.
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Mr. Richards said this proceedure was wholly
inappropriate for dealing with surplus employees~.to
whom Article 24.14.1 applied, relying of course on 24.12
which expressly states that when it is necessary to assign
surplus employees in accordance with~the provisions of
Article 24, then the provisions of Article 4 "shall not
apply.' The selection board's approach in looking for
the best person available affected its ability to recog-
nize the minimum requirements of. qualification which
triggered the grievor's entitlement to. fill the~Rosition
a.% a su,~lus employee who had been laid off. There could
be~no valid choice without using the approach provided for
in Article 24.14.1.
Mr. Richards argued that the minimum qualifications
listed in Exhibit 5 (the "Opportunity Bulletin" advertising
the vacancies) had been clearly established: there was no
doubt whatever 'that the qrievor possessed all those qual-
ifications. The very conduct of the employer in accepting
Mr. Eacott's application and interviewing him with 26 others
constituted an admission that in, fact he had the minimum
qualifications. Mr. Richards conceded that two of the
applicants named in Exhibit 9 were more senior than LMr.
Eacott, and said they should have filled the two vacant
positions, but since Mr. Eacott alone had grieved aqainst
the result, he was the proper choice at this tize. The
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employer was wrong in arbi' ,rarily setting up a new standard
considerably higher than the ones specified in Exhibit 3.
,voreover, said rNr. Richards,. the grievor's
administrative ability had been proven by his record for
some years as a school principal: his certificate shows "
that he has knowledge o f the legal aspects of education
required for the position, and above all itwas unreasonable
for the employer to substitute for these qualifications its
own impressions gained at a brief interview. If the pievor
was as lacking in merit as Mr. Storey suggested, it surely
would have become apparent during his decade at the College,
and the're was no evidence to that effect. If he had seemed
somewhat cynical during the interview, that was anatural
frame of mind after a lengthy lay-off following ten years
of service at the College, and it probably influenced his
responses .to questions. Mr. Richards concluded by affi--ming
that the whole proceedure of selection had been invalid and
that the only proper remedy was the appointment of the
grievor as an Education Officer, level 2, and compensation
for the time he had.lost since the summer of 1980.
In her argument the employer's counsel, Xs. Xurray,
took issue with the theory that all the grievor needed was
to possess the "minimum qualifications." She referred to
the provisions of ;irticle 24.2.1 and the following clauses
which suggest that a sur;llus employee’s entitiament to be
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recalled is within a certain range of positicns.
Counsel said the grievor had failed to meet the
requisite qualifications for the position he sought on three
grounds. First he had demonstrated insufficient knowledge of
the law relating to schools and the interpretation thereof.
Second, he had shown himself.to be lacking in the.nec,essary
communication skills. Third, he was deficient in the "inter-
personal skills" which were of importance in dealing with
(' school boards and superintendents. Even if he had the "oaper
qualification" for the position, entitlement existed cnly if
no other employee. of similar qualifications and equal seniority
applied. She argued that the words "no~other employee" in
24.14.1 (b) meant "no other employee covered by the collective
agreement," and not "r&other employee who has been released
or laid-off." In other clauses when references were to an
employee who is surplus or who has been released, it is so
stated, e.g. .
in 24.14.2 and the following clauses. Even if
C~ it be assumed that paper qualifications were the only quali-
fications required, then eat least four of the people named in
Exhibit 9 had longer service than .Xr. Eacott --- assuming that
all those interviewed were eligible. If the qualifications
required are broader than mere paper qualifications, then it
was apparent that one of the employees (who was on the short
list of four possibilities) had more seniority than the griever.
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/
Ms. Murray also stressed that the griever hat
made a poor impression at his interview. There must h&i
been a basis for the unanimous view that he was not caRable
of doing the job.
In reply Mr. Richards:said the employer's \
argument lost sight of .the real issue, which is whether the
grievor was qualified. That issue had been resolved by
proof of the grievor's experience and record in the service
in of school boards and the Xinistry.
This Board is not competent to determine exactly
what Mr. Eacott's qualifications are in relation to the
level of an Education Officer 2. Nor can we decide on the
evidence.before us how his qualifications compare with those .~ . . ..'.W‘
of others who sought the position or those who were successful
in being appointed.
Obviously, the key words in Article,24.14.1 are
c "another position for which he is qualified." We do not
,think this~means any position but rather one for which,
having regard to the nature of the position as well as his
own record, he appears to be qualified. Beyond doubt, it
becomes necessary to consider.the nature of the position.
It is clear that the vacancies at the level of
Education Officer 2 had to be filled by qualified Terscns
who were eligible for promotion, not merely eligibla for new
i
employment by the Ministry. Eeyond doubt, a ?ronotion was
involved because the maximum level of r.enumeration was
$7,500 per annum higher than the maximum level in the
classification the grievor h.ad held as a master at the
College.
We are not persuaded that the provisions of
Article 24.14.1 apply to a case such as this, where the
Ministry finds it necessary to make appointments involving
promotions of the order mentioned above. A series of--
clauses in Article 24 suggest strongly that the initial
entitlement to re-employment of an employee who has been
laid off is within a limited range of salary and location. :
For example Article 24.2.1 is as followsi
24.2.1 Yhere an empZoyee is identified ES sur~iz4s
he shoZZ be assigned on tire bcsCs of his
seniority to a vacancy in his mir.isfry &thin a
.f‘ortu (40) kiiometre r.pdius of his hecdquzfers
provked he . is quclijied to per;^orm 5’ae 2ori cr.c’ she
salary maximum of the vccancy is pot grscter Si2cn 2;2rez
-3ercent 13.z) cbove nor twenty per?en5 (23z:! be3ow tke
ma&mum soZary of his ctassdfication, GS ~OZZOWS:
a vacancy whicti is in the same ciass or
position as the employee ~cZc.ss or Fosition
a vacancy in a cZass or 3osCtion <n uirich
the emutoyee-, has served &r<n; ;t<s cxrrerf
term 0: conttnuous servdce; 3n
cnother vacancy
To ascertain the intention of the parties, the
whole of Article 24, which contains no less than 22 clauses,
must be read and considered. The title of the Article is
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"Job Security." It begins by stating the problem: "where a
lay-off may occur by reason of shortage of work or funds'or
the abolition of a position or other material change in
organization..;.. the subsequent assignment, displacement or
lay-off shall be in accordance with seniority subject to the
conditions set out in this Article."
Article 24.14.1 is only one of the many clauses
(. which follow the clause quoted above. He are unabie to find
.anywhere in the Article a provision expressly providing fcr
the entitlement of a surplus employee or a laid-off employee
to a position which involves a promotion. This is not surpris-
ing ; it would be strange if the displacement or release of an
employee necessitated his appointment to a higher level in the
.civil service.
_’
It was sugges,ted in argument that the employer pro-
ceeded as though this were a competition under Article 4 of
the agreement, contrary to the requirement in Article 24.13
that Article 4 "shall not apply" to assignments under Article
24. Certainly, Article 4 need not apply and does not apply
to assignments under 24.14.1 for the simple reason that 21.11.1
itself has its own requirements. One of these is the condition
stated in 24.14.1 (b) that "no other employee who has similar
qualificatiqns and a greater length of continuous service
c’~.
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applies." Seniority can be learned from personnel records.
But how can it be determined whether applicants have "similar
qualifications" without going .through a selection process?
The Ministry wculd be open to criticism if it failed to
interview applicants before deciding that Mr. A. has --- or
does not have --- qualifications similar to the qualificatioas .\
of Mr.~B. For al; these reasons we cannot find that the
employer was wrong in holding a competition for the vacancies
i in the Central Region and setting out to identify the candidates
best qualified forrappointment to the vacant positions. If
Mr. A. is better qualified than Mr. B, then their qualifications
are obviously not "similar."
As previously stated, we cannot pass judgment on the
qualifications of.Mr. Eacott;as compared. with other candidates
interviewed by the selection board, or to find whether they
were "similar." It would be improper to do so when we have
c. had no opportunity to assess the merits of the others.
As for the argument that the competition should have
been restricted, it seems to be based on the assumption that
the words "other employee" in 24.14.1 (b) means "other
employee who has been declared-surplus." We do not think the
language will bear that interpretation. Rather, it refers t0
any other employee, its ordinary significance. If the nartles _-
intended it to mean "any other surplus employee” it wou'c have
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been a simple matter to say so in plain words. It follows
that the employer was entitled to consider the merits of both
surplus employees and other employees in the bargaining unit.
Although the word "minimum" does not ~appear in
Article 24.14.1, it has been argued that a surplus employee
with.seniority and."minimum qualifications" is entitled to
fill a vacant position. Even if credit be given to that
theory, it is not relevant in a case such as thi,s. The ieal
question is not whether qualifications are minimum or better.
The real question is: "similar qualifications" for what position?
Obviously, an employee may be highly qualified for one position
in the Ministry and at the same time totally unqualified for
another position. Our ,view is that the employer must take
into account the nature ,of the position, the more so when a
promotion is involved. It is not in the interest of either the
employer of the candidate that an employee, simply by virtue, of
seniority, be placed in a position where he is unlikely to
succeed. To do so merely invites the application of what has
been called "I the Peter Principle."
What we have been asked to do in this case is to over-
rule the conclusion reached by a selection board that the grievor
was not qualified for promotion to a particular position, t!iz:
of an Education Officer 2. 'This is not to say that he was
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unqualified to serve,at the level in which he had already served
Zor 10 years; the selection board.made no.such finding and indeed
there is ample evidence that he had the experience and talent
required'for the position at the College. The selection board
did decide that the grievor was not yet capable of serving in a
particular position at a higher level.and that several other
candidates were. Proof is lacking that the selection board was
wrong. The grievance therefore fails.
Rockwood
October 14, 1981 I :
I?' B. J+illiffe,&?.- Vicer6ha&man _
I concur
A. G. Stapleton - Member
I dissent (see attached)
M. Perrin -
Member
:_.
EBJ;Jce
1?1 TU NATTER OF AN AR3ITUTIOS
BETKEEN OPSEU
AXD THE MIlu’ISTRY OF EDUCATION :iQ , ./z:
REGARDING THE GRIEVA?!CE OF
)lR. JO!iX Ll. EACOTT
Dissent:
I regret that I must dissent from the majority’s decision in
this matter. I submits that the majority have misinteqreted
the scheme of job secu&ty provisions set out in article 1:
of the collective agreement, and in the result., their
application of the article to the facts of this case is cze
the words will not reasonably bear.. .
.
With respect, I submit that article 23 is built around three
~,,.I..’ basic provisions for th:ee-job security of members of the
bargaining unit:
(1) Surplus employees are entitled, s-xbject to specified
restrictions, to vacant positions. The pay of such
employees is kbject to “red circle protection” as
described in clause 5.5.
(2) Surplus employees for whom vacant positions cannct
be found shall be entitled, subject to specified
restrictions, to displace employees with less
\ seniority.
(31 Surplus employees who are not ass
positions, or who do not displace
igned ‘to vacant
relatively juxior
employees are subject to laydoff with certain recall
rights.
,’ - _ . . -
‘2 -
Since ‘article 4 of this collective agreement also provides
that vacant positions will be filled through a process of
competition, it will be apparent that there is a potential
for conflict between the interests.of surplus employees :s;?o
face the prospect of lay-off and.other employees in the
bargaining unit anxious to seek promotional opportunities.
The parties have chosen to resolve this conflict through
the express inclusion of clause 24.13 in the 1979 and 1980
collective agreements. It provides that
11 . . . when it is necessary to assign surnl-5
employees in accordance Iiith this article,
the provisions of article 4, . . . shall not apply.”
It is worth noting that while the agreements between these
parties have always pr.ovided for appointment to vacancies
through the competitive process, the 1979 collective agreement
was the first to restrict the application of this process
:hrough the inclusion of a clause such as 24.13.
Hence,it is submitted that the parties have clearly signified
their intention to prefer the interest of surplus employees
over that of regular employees by dropping the ccmpetition
process as a method for filling vacancies when either surplus
or laid off employees are available who are qualified to
perform the work in question.
/3- . . .
The majority have clearly ignored this Frinciolc in their
,comment at page 15 of the decision, that-
“we are not persuaded that provis.icns of
article 24.14.1 apply to a case such as
this, where the ministry finds it necessa’qy
to make appointments involving promotions of
the order mentioned above. ~A series of
clag,ses in article 23 suggest that .;the initial
entitlement to re-employment of an ‘eqloyee
who hasp been laii off ins witkiz a liy,itec
range of salary and location.”
In support of this doubtful proposition, the majority points
to article 24.2.1.
The reasoning by the majority, however, suggests real
confusion as to when or how clause 24.13 should apply. The
union has argued that the clause apjlies regardless of whether
one is assigning a surplus employee to a vacant position
pursuant to article 24.2 or a laid off employee to a vacant
position under article 24.14. The employer~did not address
this issue and hence, there is no reason for this board to
reject the union’s interpretation.
The majority, however, have written that article 2-1.14.1 does
not apply because of the order of magnitude of the prcmotic?.
.that was involved in this case. Kith respect, the magnitude
of the promotion is such that Mr. Eacott would not have been
: ‘,
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able to claim the~Ec!Jcation Ozc' AAlcer position as a matter cf
right under article 24.2 had the vacancy occurred after tie
iqas declared SUT~~US but. before his lay-off; but that is ;?ot
the case befbre us. The restrictions found in article 2G.2 aye
specifically confined to the surplus employee beir.g considered
for vacant positions in what I have chosen to call the first
stage of the thre.e-stage scheme for jcb security described iz
article 24.
This grievance concerns the recall rights of a suq~lxs ez~lcyee
who has actually reached the third and final lay-off stage ci
this three phase. job security scheme. The language of .-. .:
article 24.14 simply does not contain the same restrictions
as to salary and location as are specifically found in the
provisions'dealing with the first two phases of the scheme,
namely those concerning assignment to vacancies cr dis?lacenent.
The logic behind this distinction shculd be self-evident. Those
surplus employees who have been.~,unable t,a,,,z.f+nd vacant positions,
or to displace relatively junior employees are laid cff and
the economic hardship which this precipitates is obviously
sufficient to entitle such persons to greater consideration
than is the case for other surplus employees who are more
readily placed, or is deserving by regular employees xho are
IlOt SIlTFlUS, Hence, it is submitted that article 2-1.13 a?p.lies
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to.positions of interest to the laid off emp’lcyee and such a:.
employee is entitled by virtue of clause 24.14.1 to reclaim
his former position or another position for which he is qualified,
s’hould eithe.r become vacant so long as:
(11 the vacancy is in his ministry,
(21 it occurs within a year after release,
(31 he applies within 14 days, and
(4) no other employee who has ‘similar qualifications
k. in a greater length of service abplies.
The gxievor clearly met the first three criteria and, given
the.absence of other grievances, I am satisfied the fcurth
did not apply.
\
Xhile suggesting that article ,24.14 gives the laid off employee
a greater “area of ,search” than is available for the merely
surplus employee, by virtue of freedom from, inter alia, any
salary restrictions, I appreciate that it nay be somewhat
c unus’ual if such a laid off employee caq so exerci.Fe these rights
as to gain a promotion. The error of the majority, however,
lies in their conclusion that the parties have fashioned their
agreement in such a way as to prohibit that which is mereiy
unlikely. I -submit that the facts in this case are unusuai.
The grievor, who was already a highly qualified teacher, has
chosen to use his ‘free time since his actual lay-off to further
qualifications an, abilities through the aco.uisitior’.
isory Officers ’ certificate in February 15130. T:l3t
upgrade his
of a Superv
. . .,‘tj-
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this should enable him to meet some minimal rec.uireaent
:OT an Education Officer’s position is attested tC 3;
the acknowledgement of MT. Glendenning, reported at
page 7, that
‘- “it was quite common prior to 1S;O for
Nasters to reach the Education Officer
level.‘.’
i hhile stating that it was less common since iS73, he
stated that about ij blasters had been employed as
Education Officers and Khile E.O.‘s since ISTO usually
come from the ranks of School Administrators, it should
not be forgotten that Mr. Eacott also served for 6 years _
asan Elenentav School Principal.
Given t,hat ?Jr. Eacott was urima facie,~.qua?ified for the
Education Officer position, it is submitted that the
employer violated article 24.13 in proceeding to hold
the competition for the.Education Cfficer position
pursuant to article 4, and the majority of this board
have exceeded their jurisdiction as set. out in article
27.12 of the collective agreement in failing to so rule.
The majority attempt to escape from this conclusion by
, sugge~st .Ing, at page 16, that
“Article 4 need no: a-,?ly and dces not- a;;::.
to assignments under 24.14.1 for the sia~le
reason that 24.14.1 itself has its cwn
requirements . . . . seniority can be learned
from personnel records. IJut. box can it
be determined whether a?Flicants have
‘similar qualifications’ withcut going
through a selecticn ~rccess7”
Kith respect, clause 24.14.1 may indeed :ontemplzt? scze
form of selectionprocess, but not the one implied b)
the majority decision. The majority decision holds that
1’
the provision for receipt of apglications under clause
24.14.1 means that the clause provides a com?etiticn
process open to any other enplcyee in the bargaining unit.
It is held that if the parties intended the language to
mean “any other surplus. employee” it xould have been a
C.~ ~.si~mple matter to say so. in plain words.
‘---’
With respect, I disagree. The majority is saying in
effect that while the parties have agreed, through tke
provision. of clause 24.13 to waive the obligaticn~ for a
competition under article 4 in the case of surplus employees,
the~y have replaced that procedure with a virtually identica:
one which allows any employee in the bargaining unit tc
apply . . In my opinion, it does not make sense to interFret
.
effect of article 24.13. In s f: 0 r - i , t h c z a j 0 r I f *: 7; i c :..~
takes the clause out of the context of the entfre article
dealing with job security.
(.
It is submitted that the only ,interpretation that the
Icords will reasonably bear is cne that recognizes that
Cause 24.14.1 de.als ;iith the third part, namely the
rights of. employees ;iliO are released or iai? off, <r-r A__ &U
lchich the 20 odd classes of this article are arranged.
For this reason, all references to “employee” in tke
article should be viewed as an employee who has been
released. It is suggested that the lack :.of such
qualifying phrase adjoining the reference to "emplcyee"
in clause 24.14.1 (b) arises from the fact that it
.
wou,ld be redundant in the context of this ~ciause rat:?er
than ‘as an indication of theparties ’ i’ntent to convey a
broader meaning to the word “em?loyee”.
c.
In support of this view, I would point out that the
only employees in a position to apply for a vacant
position pursuant to clause 24.14.1 are those k.ho have
received notice of the vacancy in accordance with the
provisions of the ,clause, naznely those employees who
have been released. Regular employees are not expected
to apply for this position because they receive 20
notice of the vacancy because there is no advertisement
.’ 2 _ . . .
:; .
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because article 4, even on the majority’s c:in admFssi:n,
does not apply.
On the facts of this case, the employer held an o?en
competition and ev-en considered applications from persons
outside the bargaining unit, Such persons 2re soi eqlcyees
within the meaning of the collecti:;e agreement and for ,~
this reason, there was a clear breach of c1ause~ 24.12-l.
Khile another panel of this 3oard has held that ccm;etiricns
under article 4 are not restricted to employees under then
collective agreement, re Lavigne and Xinistry of Transcorta-
tiOn and Communications, SS3 tlg,o/sD; the language of article
4. j is clearly di.fferent in this respect from the language
of article 24.14.1; hence, we may reasonably conclde
that even if there are: as the majority sugges:s, separate
selection procedures under articles 4 and 24, .then the
eqloyer in this case erroneously follcwed the procedure
under article 4 rather than under article 24.
In reaching this conclusion, it is submitted that the
majority has been distracted by the knowiedge that the
position claimed by the grievor xou?d have invclved a
sub~stantial promotion. Khile it may indeed ‘IL+ strange
. . . .I / ; T; _
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if the displacement cr release of an emplo].ee necessirat-ti
!iis appointment to a higher level in tie Ci:rii ,Cer-;ice”,
the possibility should not be exciuded if the erpicyee
.is in fact qua1 ified for the position in questior.. T:? e
majority’s concern about the possible ‘applicaticn of
the Peter Principle kould probably have had little or no
application if the griever bad. sought a vacant positicn
et an equal or louer rate of p2y tn his former p3itic.n.
Ir, short, it is s-~by~:.itte< ::?a; the szl;ry rela:icnsy.i,
betiieen the redundant position and the position clairrec
under article 24 is an irrelevant consideration, except
insofar as it is specified in clause 21.2 and 24.5 concern-
ing assignment to vacancies or displacement, neither ci
which is involved in this case.
This brings me to what must be the real issue in this
case. Very simply, I believe that this board x,-as being
asked to consider whether or net Eacott “was quaiified”
for the position of Education Officer. If the ansuer is
“yes”, he is entitled to the position. If the answer
iS “no”, he is not entitled to the position ant! t,L.e.
grievance must fail. Consequently, the problem posed
for this board of arbitration is virtuaily identical
j
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to that whkh faces a.ny board called n?cn tc decide
the merits of a grievance for a va~cancy when an
employee ’ s rights are determined by what has beccme
knowp as a “sufficient ability clause!‘. It is
submitted that this baord has both a right a;li a tzt;.
to answer this questior,.
Xe: ifhitby Welding Ltd., 11 L.&C (2dj 31-Z [,>‘Y:ea): and
ge: DOW Chemical of Canada Ltd., 22 LXC 52 (Y:ea:::erill: ,rr.d
Rie: Great Atlantic and Facilic ~Como2n-v .cf C;n~&z Lrt.,
13 LAC (Zd) 211%.
In light of these authorities, I disagree with the
majority’s statement, at page 14, that “this board is
not competent to determine exactly what :.;r. sacott’s
qua1 ifications are in relaticn to the level cf 2~
.Education ~Officer 2.” Indeed, in taking this a;T:rcac.?,
I would submit that the board has faiied to exercise
the jurisdiction given to’ its and has thereby eqosec
itself to the possibility of judicial relVie:i.
In an effort to.escape this characteri:atio-; tke
majority states in their conclusion, at ?age IS, t:?a:.
“proof is lacking that the selection board ~2s :;rcng”
(in its conclusion that the griever was nc; :.-et
capable of serving in an Education Officer
position), Ki th respect, t::.e evidence zn t.‘.is :a::t’:
!
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is conflicting and self-serving from both T;arties. Le.c~-a’21.,. “. #
the standard demanded by the majority for the grie-;ance t;
succeed is virtually unattainable, since an;: finding as to
i;hether or :not the grievor kas qu2lified appears tc rest cn .._
subjective, rather th2.n. objective considerations. For ex22:;31E:,
consider the testimony of Xr. Storey, a member of the selecticn
board which rejected the griever, rercrted at nage S, i:ho
~.~ _ . . -. . ,;; .~ . _
stated that:
i “The Eoard deveioped selection criteriz and
prepared questions to be asked, some or all
of which -Gere put to t:he candidates. Z?P
selection board had focused on question 54
‘What is your leaders&? style?’ ‘I
Other panels of this board have already attacked defects in
the managerial process of selecting candidates.~to fill
vac2ncies : See fcr exemple Re: Quinn and ?!.T.C. ,‘SS3 ?C/‘:j
(Interim Award), and Re: Remark and Minis:?-!- of Revenue,
c GSB t149/77.
The selection board in this case appears to be guilty cf
similar defects in its procedures.
,7: _ . . .i-d
i
In light of these fir.dir.gs, I would fi?:-’ t;laf t?e gr<e’.‘rir ..i .’
met the only objective st?ndard available,in this c,ase ir:
t:?at he clearly brought himself withi the a&*:erCi:ed
“paper requirements” listed on the notice of vacar?cy. Fcr
this reason, I would have upheld the grievance, directed
Mr. Eacott Is appointment to the Education Ofiicer I;oslticn,
and ordered the employer to pay. compexsaticz for 1~s~ of
earnings azd ber,efits.
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