HomeMy WebLinkAbout1981-0333.Van Steen.81-12-07CRO‘;v;\’ E..CIFLOYSES COLLECTIvE ?d.RGA:NING ACT
aefore
THE GRIEVANCE SETTLEMSST WARD
Gisela Van Snzen
The Crown in Right of Ontaris
(!vlinistry of kdustry and Tourism:)
.Mr. P.M. Drsper Vice Chairmnsn
hr. G P-cktian .I 1 Iember
Troiessor F..Coilom :demDer
\tr . G. Xi&ads’
Grievance 3fficer ;*
anrario Fubiic Service Employees Union
G:ievor
Employer
._ ,:.
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The Griever,, Gisela Van Steen, whose position was Language.
Services Coordinator. classified Translator 2, in the Creative Services Branch.
Communications Division, Ministry of Industry and Tourism, was “identified as
surplus” by the Employer due to the re-organization of the division and the
resultant elimination of her position. She was placed on notice of lay-off on
November 20, 1980, and laid off on .May 22, 1981. She has not been assigned to
another position in the public service and has not succeeded in finding
employment outside the service.
It is submitted for the Crievor that the Employer acted unfairly in
not informing her of the impending elimination of her position so that she
could have reversed her decision not to compete for a position in the same
ministry that became vacant shortly before she was placed on notice of
lay-off and. secondly, that the Griever was denied appointment to a position in
another ministry that was created while she was on notice of lay-off and for
which she was qualified. Inreply, it is submitted that no duty of fairness
devolved upon the Employer; that. in any event. there was no unfair treatment
of the Grievor; and that the Grievor was not wrongfully denied the position,in
the other ministry.
In reviewing tne evidence presented and setting down the reasons
for our decision. it is convenient to follows the sequence in which evidence was
presented at the hearings relating to the two separate grounds advanced in
support of the grievance.
The Crievor testified that she was first employed by the ministry at
its Dusseldorf. West Germany. office as a translator-interoreter in 1965. 3n
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I coming to .Canada in 1967 she was employed as a Clerical Stenographer 3. In
1969 she was promoted to Translator 1 and later to Translator 2 in the
,Management’ Services Branch, Administrative Division. of the ministry. In
1975 she was given the title of Coordinator of Language Services. Among her
~..~ duties were the coordination of language services for the ministry, the making
of recommendations to ensure conformity to ministry language policy, and the
maintenance of translation quality. Effective September 1, 1980. the
Grievor’s position was transferred to the Creative Services Branch,
Communications Division, of the ministry and as of September 15, 1980. she
was moved to an office location not occupied by her new division. In June,
1980. the Griever discussed with Ennio Vita-Finzi. ,Manager. Business
Opportunities Section, Industrial Development Branch, Industrial Division, of
the ministry a then-existing vacancy for an Industrial Development Officer.
The position was posted in September, 1980, and the Griever filed an
application for it along with a personal letter to Vita-Finzi in which she
expressed some reservations about the position because it was classified ID02
and not ID03 as she had assumed from their earlier discussion. The Grievor
later withdrew her application for that reason. Shortly thereafter she
received a telephone call from Linda Peregantes. the ministry’s Wornens
Advisor: who inquired why she had withdrawn her application and said she
thought the Grievor was letting a career opportuniry pass. In late October.
1980. the Grievor requested a meeting with Patricia Jacobsen, Executive
Director? Communications Division. for the purpose of discussing her
unsatisfactory work location. Jacobsen said she also wanted to see the
Griever and a meeting was arranged for October 23, 1980. That meeting hIad
to be cut short and they met again on the next day. The subject of the ID0
vacancy came up and Jacobsen told the Crievor :hat she had originated the
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idea of having her apply for the position; that she had spoken to Vita-Finzi
about hoiding it open; that the translation service heid no career future for the
Griever; and that the rejection of the opportunity would mean it would not be
offered again., On November .IT, 1980: J.A. Hickman? her newly-appointed
superior as Director, Creative Services Sranch, told her that she was being
laid off and asked if she had known when the ID0 position was open that her
position was to~become redundant. to which she replied that she had not.
‘Written notice, of the lay-off followed on November 20: 1980. The Griever
was dissatisfied with the efforts being made to find her another public service
position and complained to L.&l. Tobias, Director, Recruitment Branch. Civil
Service Commission. Tobias wrote to W.E. Rooke. Director. Fersonnel Branch?
of the Crievor’s ministry about the matter and was assured that everything
possible was being done to assist the Crievor.
Patricia Jacobsen testified that she has been Executive Director!
Communica:ions Division. of the ministry since 3anuaryt 1980. ,A mandate to
re-organize the division. combined ,with budgetary~ restrictions, required that
she evaluate existing services performed in the division and set priorities for
futnre services. The process took place over a period of about six mon?hs.
The Griever’s duties were to act as a translator and interpreter, to provide
in-house translation services. to advise on the use of outside translation
services. and to coordinate the ministry’s language services with those of the
Transla?ion Bureau of the Ministry of Culture and Recreation. The ministry’s
wanslation services. including the Griever’s position, were transferred to her
division because they had to do principally with publications. On learning ?har
the Grievor had withdrawn her application for the ID0 vacancy. she spoke to
Vita-Finzi to ask if it could be kept open. She told the Griever at their
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meeting on October 24, 1980. that in her opinion the ID02 position opened a
better career path than the Grievor had before her in the translator series and
that she should take this “second chance” to apply for it. She did not say that
the opportunity, if refused, ,would never be offered again. The Griever replied
that an offer of an ID02 position was an insult. Following a review of the
positions in the division during the first two weeks of November, 19SO. in
which, due primarily to the decreased demand for language services, a low
priority was given to the Crievor’s position. the decision was made to abolish
it.
It is argued on behalf of the Crievor that the Employer must have
known that the Griever’s position :vas to become redundant and so acted
unfairly and unreasonably in not informing her of the consequences of her
decision to withdraw from the competition.for the ID02 vacancy. From the
facts that Jacobsen was undertaking an extensive re,organization of the
division; that the Crievor’s position had a low priority in Jacobsen’s mind, fhat
the Griever was moved to a location apart from the rest of the division. and
that the Grievor was pressed to continue to compete for the ID02 vacancy
after having withdrawl the inference is drawn that Jacobsen knew and did not
d&close to the Grievor when she could have that the Griever’s position ;vould
be eliminated. The argument is made on behalf of the Employer that because
no breach of .Arric!e 24i(ZYll or Xr:ic!e 24(2!(2) of the collective agreement is
alleged or took place: the concept of the duty of fairness is not applicable and.
alternatively. t,hat there is no ‘oasis for the assumption that at the time the
Griever refused to compete for the ID02 vacancy Jacobsen knew or intended
that the Griever’s position would 3e eliminated.
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We have come to the conclusion that since the administration of the
collective agreement between the parties is not ‘at issue in this branch of the
case, the stimission made on .behalf of the Griever must fail. A duty of
fairness can surely not be found simply because an employer,employee
relationship exists oi even because a collective agreement is in effect. It :
must? as we,understand the jurisprudence, be referable to some provision of
rhe collective agreement between~the parties and to some conduct of one of
them related to the operation of that provision. Here there is no provision of
the collective agreement that has been violated by the Employer. Further.
there is no provision of the collective agreement which, because of some
conduct of the Employer, has operated to the detriment of the Griever. In
these circumstances, we do not see how a duty of fairness can be said to exist.
Ye have had the benefit of the thorough review of the cases concerned with
the concept of fairness contained in Ontario Public Service Employees Union
and The Crown in Right of Ontario (Ministry of Transportation and
Communications) !455/30) and the view of the concept expressed by the Board
in deciding that case. Our reading of the grounds for the Board’s decision
confirms us in the opinion we have reached.
Continuing her testimony, the Griever stated that on March 25.
1981, she received from a colleague, Timothy Nau. a note informing her that
he had discussed her qualifications with Katherine Eastham. Direczor!
Newcomer Services Branch. ~lulriculturalism and Citizenship Division.
Ministry of Culture and Recreation. who said she was !ooking for someone with
language skills. Tne Griever did not hear from Eastham. On March 31. 1981.
she received in the mail from an anonymous source a copy of an announcement I
from the March i7! 1981, issue of Topical/Job ,Martl a publication of the Civil
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Service Commission, of an open competition for the position of Multilingual
Information Development Consultant, classified Community Development
Officer 2, ~3n the Newcomer Services Branch, ,Ministry of Culture and
Recreation. She consulted Janet Keith, Personnel Administrator in her
ministry, was encouraged by her to apply and did so on April 6, 1981. She
received an acknowledgement which stated that the applicants who were to be
interviewed would be notified by May 1, 1981. She was’not so notified. On
May 4! 1981, Keith told her she had rafked to .Moses Darhalli, Personnel
Administrator, :Ministry of Culture and Recreation on May II !981, about the
competition and was told that there were many qualified applicants and that
the Crievor might not be one of those interviewed. Keith convinced Darhalli
thar the Crievor should be interviewed because her position had been
eliminated. The Griever. knew she was to be interviewed for that reason and
not as-.a participant in the competition. The interview was held on ?ilay 5.
1981, by the Selection Board conducting the competition and was made up of
the same components being used in the csmperition - a practical test. a
writ?en test, and an oral test based on written questions. In the practical test
the Griever was required to operate audio-visual groducrion equipmenr. In the
written test she was required to review the imaterial presented on the
s:ide/tape. The text covering these two portions of the interview reads as
follows:
WRITTEN TEST - MULTILINGUAL INFORMATION
CONSULTANT
This slide/tape was developed by a community group for
use in workshops with South-East Asian refugees who are
seeking employment. The program is shown in the native
language of the newcomers in each session? that is,
Vietnamese, Chinese, Lao or Khmer, and subsequent
discussion also takes place in that language.
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View the program using the two trays of slides, the tape
and the script (to the end of Part 1). Please write a
review of this program. In the review, analyze: the point
of view (producer’s assumptions), the degree of sensitivity
to the newcomer’s situation, the content. in terms of the
value of the information, the use of the audio/visual
medium, the technical quality of the presentation, etc.
You will have one hour and 20 minutes for this. The slide
tape takes approximately 20 minutes to play.
Use the script to view the show. Advance the slides each
time you see a nuntber in brackets.
The Griever was not familiar with the type of equipment being used and asked
for instructions. She stopped the equipment and turned on the lights as the
program went along in order to make notes. In the oral test the questions put
to the Ctievor were the ‘following:
Multilingual Development Consultant Job Interview
General
1. Please describe your background and experience as
they relate to this job and why you were interested
in applying for the job?
Media Promotion, Development and Production
2. The Newcomer Services Branch of the Ministry of
Culture and Recreation plays a lead role for the
Ontario Government in the field of newcomer
integration. However, it is a Branch objective to
encourage other ministries to become involved in
providing multilingual materials in ways that relate
to their mandate. lf you were asked to initiate a
process to encourage other ministries either to
produce multilingual information themselves or to
co-operate with and possibly co-fund such material
with the NSB, how would you proceed with and
carry out this assignment? Assume that at least
some of these ministries would rather not get
invobfed.
3taa) You are asked to develop a mini-Guide or brochure
based on the most relevant material in the
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(b)
4.
5.
6.
“Newcomers Guide to Services in Ontario” for
newcomers from linguistic groups whose numbers
do not warrant the costs related to producing the
fulf guide. How would you proceed?
Having developed a mini-Guide, how would you
ensure that the content and the translations were
suitable to the particular linguistic audiences for
which they were intended?
What factors~ would you consider and how would
you plan and implement an evaluation of the
“Newcomers Guide”? Take into account that the
Guide is distributed at points of entry e.g. Toronto
International Airport, at the Ontario Welcome
House, by a wide variety of government and
community agencies who are counselling or
working with newcomers and through classes in
English as a second language. It is available
presently in eleven languages, besides English.
You are asked to, look at the possibility of
producing audio/visual materials for use with
newcomers in orientation classes. The classes or
workshops are held in the native language of the
newcomers taking part. What factors would you
consider and how would you proceed?
What are the steps involved in producing a book?
Field/Community Liaison and Consulting
7. You are asked to be a liaison person for all Branch
programs in a particular field region. In this
region, the ‘staff all come from a recreation
background and have had very little contact with
immigrants. There are almost no services for
newcomers operating in this region. The field staff
are resistant to getting involved in Newcomer
Services Branch programs and do not see working
with fledgling groups of different cultural
backgrounds as a priority. You are aware that
there are a number of immigrants and refugees
who have settled in the area and know that there
are unmet needs. What process would you use to
work with this field region?
8. How would you develop a process of program and
budget planning with the field region with ‘which
you were responsible for liaison?
9. What factors would you consider in assessing the
effectiveness of an organization applying for a
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grant and in assessing their abiiity to carry out the
project for which they have applied? How would
you go about working with a group to improve their
effectiveness in co-operation with the Field
consultant?
A group cal!s you directly and complains about not’
heariig back on their grant application and never :
being able to reach the field officer. They intend
to go to the press. How would you follow up?
Other
II. What other skills or knowledge do you have which
would contribute to other parts of the Orientation
Unit’s work; for example, leadership,
organizational development or adult education
Ski&?
The Grietior felt intuitively that Elizabeth Butterworth, who was chairing the
Selection Board! was hostile in that there was no effort to put her at ease at
the outset, but this did not last.
Elizabeth Butterworth testified that she has been employed in the
.Minisrry cf Culture and Recreation since 1966. has been classified Communiry
Development Officer 3 since 1975, and has been Supervisor. Orientarien L’nit,
Newcomer Services Branch, Ministry of Culture and Recreation since 1979.
She participated in the preparation of the Position Specification for the new
position da?ed Varch 24. 198!! and the announcement that appeared in
Topical/Job M&t on larch 27! 1981. The Selection 3oard was aware before
the Griever’s interview was held that her position had ‘been eliminated and that
she was not required to compete for the new posi:ion but only to prove thar
she was qualified for i:. It was her opinion that in the written test the Griever
did not demonstrate the necessary skills in writing or critical analysis and did
not convey the impression of knowing now to respond to the assignment. The
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Griever was not held to- the one-hour limit. In the oral test the Griever
emphasized her translation experience and conceded that she was not qualified.
in some of the relevant areas. She did not understand some questions and
others had to be re-phrased so as to elicit answers from her. The Crievor’s
answers. with few exceptions. were poor. too general or missed the point of
the quesrion. The Griever was the last person interviewed on Way 5. 1981,
after a number of applicants in the competition. The position is not a training
position. Her own conclusion, and that of the Selection Board, was that the
Grievor did not have the qualifications necessary for appointment to the new
On this branch of the case it is argued on behalf of the Crievor that
because she was a surplus employee at the time the new position in the’
Ministry of Culture and Recrearion came into existence and because she ‘was
qualified to perform the work, she was denied her right to be assigned to it in
violation of Article 24(2)(3) of the collective agreement. Thar arricle.reads as
follows:
24.2.3 Where an employee has not been assigned in
accordance with subsections 24.2.1 or 24.2.2,
he shalJ be assigned on the basis of his
seniority to a vacancy in another ministry
within a forty (40) ‘kilometre radius of his
headquarters provided he is qualified to
perform the work and the salary maximum of
the vacancy is not greater than three percent
(3%) above nor twenty percent (20%) below
the maximum salary of his dassification, as
follows:
- a vacancy which is in the same class or
position as the employee’s class or position;
- a vacancy in a class or position in which
the employee .)as served during his current
term of continuous service; or
- another vacancy.
Then Employer submits that there has been no breach of that article by the
Employer and that the Board has before it ample evidence on which to find
that the Griever is hot qualified to perform the duties of the new position.
Extensive evidence was adduced as to the Griever’s qualifications.
However. as we conceive it? our task in the circumsrances present here is not
to decide whether or not the Selecrion Board. on the basis of the Grievor’s
performance in her interview. should ihave found her tom be qualified. or TO
decide. on the basis, of t:le evidence put before us. whether or not the Crievor
is qualified. Xather. it is to determine whether or not the process by which
the Griever’s quaiifications were evaluated was such as to permit a fair and
reliable judgement to be made by the Selection Board. It is nbt argued for the
Crievor that the interview was faulty in the sense that it was not related to
the requirements of the new position, or that it ivas not adequate to reveal the
Griever’s qualifications? or that the. members of the SelecTion Board showed
bias against the Griever. It is. however, submitted that the interview was
“coloured” by its juxraposition to an open competition for the new posirion.
Ye do not believe that the fact that the Empioyer proceeded with the
competition was prejudicia! to the Crievor. T;le circumstance of a
competition 5eing in progress did nor interfere with her rights as a surplus
employee. In effect? rhe competition was interrupted for the purpose of giving
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the Grievor the opportunity to demonstrate her qualifications and, the.
members 0: the Selection Board were instructed as to her status and rights. In r
our opinion:‘the Griever was not made to compete with the applicants in the
competition by reason of being put to the same test. There is no evidence that
her performance was measured against that of any applicant. The conclusion
of the Selection Board was simply that she ‘was not qualified. We find that the
process by which the matter of the Griever’s qualifications for the new
position was determined was fair and reasonable and we see no reason to
disturb the result.
The grievance is dismissed.
Winston Tinglin, the successful applicant in the competition for the
new position in the Ministry of Culture and Recreation was present at the
hearing and chose not to make any representations to the Board.
Before leaving the case, we are consrrained to comment that if the
circumstances here are typical. the administration of the provisions in the
collective agreement for the assignment of surplus employees leaves much to
be desired. The system is supposedly coordinated by the Civil Service
Commission, yet its activities in this case seem to have been extremely
limited. Given the language of .Article 2+, we would have assumed a more
positive involvement by rhe coordinating body. It is difficult to see how.
efforts to place surplus employees can be effecrive unless some centra! agency
is acrively engaged and service-wide resources are utilized in the search for
employment opportunities. Some though1 might well be given to the
respective responsibilities of employer and empioyee and :o rhe workings oi
i,
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the system in situations csntemplated by Article 24.
DATED at foronto, Ontario this 7th day of December. 1981.
Mr. PJA. Draper. Vice Chairman
Mr. G. Peckham. 4lember
Y Professor F. Collom. :b,lember