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HomeMy WebLinkAbout1982-0033.Simard.82-12-06, IN THE MATTER OF AN ARBITRATION Under THE CROWN EadPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOA,RU Between: OPSEU (Gerald Simard) - And - Before: For the Grievor: For the Employer: Hearings: Grievor The Crown in Right of Ontario (Ministry. of Community and Social Services) Employer R.J. Roberts Vice Chairman I.J. Thomson Member E.R. O'Kelly Member J. hliko Grievance/Classification Officer Ontario Public Service Employees Union A. Greenbaum Employee Relations Officer Personnel Branch Ministry of Community and Social Services August 12, 1982 August 17, 1982 ._ =: 2 DECISION In this arbitration, the grievor claims that he was denied appointment to a vacancy for the position of Observation and Detention Home Worker Level 2, in violation of the provisions of Article 24.14.1 of the collective agreement between the parties. This is the Article essentially governing placement of a surplus employee into another position for which he is qualified. The Employer made two submissions in response to this claim. First, the Employer took then position that the grievance constituted a challenge to the Employer's exclusive right .to classify,and hence was inarbitrable. Secondly, the Employer submitted that Article 24.14.1 was not violated because the grievor was not "qualified" for the job in question within the meaning of that Article. On the jurisdictional issue, we conclude that the grievance is arbitrable. The grievance does not challenge then right of the Employer to create the classification of Observation and Detention Home Worker 2; rather, it challenges the conclusion reached by the Employer that the qrievor'was not qualified for this position. Upon due consideration of the evidence and argument of . the parties on the substance of the case, we con- clude that the grievor is qualified for this position, and hence was denied this position in violation of the provisions of Article 24.14.1 of the collective agreement. Accordingly, to this extent, the grievance is allowed. The circumstances from which this grievance emerged began with a decision of the Ministry of Community and Social Services to close its Champlain School, which is a training school for juveniles located in Alfred, Ontario. The grievor was a Supervisor of Juveniles Level 2 at this institution. At the time of the closing of the. Champlain School, the grievor had been on permanent staff for about two years. Before that, he had worked at Champlain as a casual Supervisor of Juveniles on a 24 hour contract. There seems to be little doubt that the grievor performed well as a Supervisor of Juveniles Level 2 during his tour of duty at Champlain. On _. . . 4 August 12, 1981, Mr. S.H. Szabadka, Superintendent of the Champlain School, wrote a letter of recommendation for the grievor reading, in pertinent part, as follows: Gerald has been a good employee. He got along well with all staff, including his superiors. He is self-confident and does not hesitate to * seek advice when appropriate. He is not the kind of person who has to be pushed to work. In fact, Gerald is very active in the community as a volunteer and has participated in numerous after-hour activities with our boys and staff. I have no reservations in recommending Gerald for other positions in which he has demon- strated an interest. * 'Sincerely, Frank H. Szabadka, Superintendent. The bein 1 ,g etter indicated that the grievor, in addition to a good worker, was interested enough in his work to participate in a number of after-hour activities involving the wards at Champlain School. At aboutthetime that the grievor received this letter of recommendation, he was declared a surplus employee andreieasedfrom~enployment at Champlain effective . .5 5 August 14, 1981. Shortly thereafter, the Ministry of Community and Social Services notified the grievor that there was a vacancy for an Observation and Detention Home Worker position in the Ottawa Observation and Detention Home. The grievor responded that he was interested in this position. On October 2, 1981, the grievor was interviewed for the above position by an interviewing committee composed of Mr. A. Martin, the Superintendent of the Ottawa.facility; Denise Emard, Assistant Superintendent? and Mr. D. Taylor, a shift supervisor. The interview lasted for a period of about 142 hour to 45 minutes. Four days later, on October 6, 1981, Mr. Martin sent to the grievor a letter of rejection stating, in pertinent part, "The Selection Committee was unable to qualify you for the above-noted position [Observation and Detention Home Worker 21 and therefore I cannot authorize your reassignment under the Surplus Employee Policy." On November 12, 1981, the grievor grieved this rejection. His grievanceclaimedessentially that the Employer contravened Article 24.14.1 of the collective agreement when it did not assign the grievor to the 6 position of Observation and Detention Home Worker 2. The grievance requested, "Assignment to [the1 position with no loss of pay and benefits retroactively." In due course, this hearing followed. At the hearing, the Union submitted evidence tending to indicate that the positions of Supervisor of Juveniles 2 and Observation and Detention Home Worker 2 overlapped to a substantial degree. The Employer, on the other ha-nd-, attempted to differentiate the positions on a number of grounds, including reporting requirements, admission procedures, power over the-children in the areas of discipline and health; contact with persons at institutions outside of the Observation and Detention Home, length of stay of the children, and differences in security: While we appreciate that there are some differences between the above two positions, we find ourselves compelled to accept the submission of the Union that there existsa substantial similarity between the two. In a previous award of this same panel, we concluded, "In the areas of documentation, programming, type of inter-action with the juveniles, type of juveniles supervised, reporting relationship, security, staffing and 7 organizational structure, there seemed to be little, if any real difference between the work being performed by the S.O.J. 2's and 0. & D.‘s” Re Brecht and The Crown in Righ.t of 0n~ta.ri.o ,(Mi.nistry of Community and Social Services), G.S.B. #171/81 (Feb. 25, 1982). While it may be that the Employer has shown that the job of Observation and Detention Home Worker 2 places more emphasis upon certain skills of the employee, e.g., in preparing detailed reports to be used in the courts, giving viva voce~ evidence -- in court, or negotiating home supervision agreements with parents and others, there does not seem to be any reason to suppose that this.increased emphasis comprises such an important element of the job as to differentiate it completely from the job of Supervisor of Juveniles 2. In saying this, we do not suggest that holding the classification of Supervisor of Juveniles 2 automatically qualifies an employee for the 0. & D. Home Worker 2 classification within the meaning of Article 24.14.1, or for that matter,' vice Ve~rsa. It is possible that a qualified Supervisor of Juveniles 2 might be so deficient in certain skills upon which there is more emphasis in the Observation and Detention Home Worker 2 classification as to disqualify him from the latter position. It seems to us, however, that in view of the considerable overlap between the two jobs, the deficiency would have to be of substantial proportions. , We do not find any such deficiency in the skills of the grievor. The Employer submitted that the grievor lacked the communication skills, both in terms of written and oral communication, that are emphasised in the job of * Observation and Detention Home Worker 2. The Employer stated that the grievor's written responses to questions posed at his interview were ungrammatical. Some words were misspelled. It also was stressed that the grievor had less than a Grade 12 education. In this regard, it was noted by Mr. Martin in his testimony that he had never before interviewed a person who; like the grievor, had less education than that suggested as desirable on the position specification for Observation and Dentention Home Worker 2, i.e., Secondary School graduation with completion of an accepted Child Care Training Course or an equivalent or a B.A. degree from a university of recognized standing. The Employer suggested that because of this alleged deficiency in communication skills, the grievor would not be able to prepare literate and *Along the same lines, the Employer also submitted that the grievor lacked the child care skills essential to adequate performance in the classification of Observation and Detention Home Worker 2. It did not seem to us that this point was pressed with much vigor by the Employer. In any event, we reject the submission. Our own assessment of the evidence indicates thatthe grievor's child care skills are more than adequate to qualify him for the positions of Observation and Detention Home Worker 2. correct court reports or preserit testimony in support of his reports in a satisfactory manner. We reject this submission. It may be that the grievor did not perform well at his inter~view. But our own observations of the' grievor during his testimony at the hearing indicate to us that he should have little, if any, difficulty in communicating. The grievor is a Francophone. English is not his mother tongue. Despite this, the grievor testified in ,English both 'on direct and cross-examination without encountering any serious difficulty in conveying to the Board an accurate impression of his evidence. While _ the grievor's lack of intimacy-tiith the English language may result in the presentation of written reports containing some grammatical errors and some misspellings, this does not seem to us to constitute so substantial a deficiency as to disqualify'him from the Observation and Detention Home Worker 2 position. In making this latter observation, we refer-' to the.express wording of Article 24.14.1 of the collective agreement. This Article provides as follows: ,i 10 24.14.1 Where an employee who has had at least one (1) year of continuous service is released and his former position or another position for which he is qualified becomes vacant in hisministry within one (1) year after release, notice of the vacancy shall be forwarded to the employee at least fourteen (14) days prior to its being filled out and he shall be appointed to the vacancy if: (a) he applies therefore within the fourteen (14) days, and. (b) no other employee who has similar qualifications and agreater length of continuous service applies. Both counsel at the hearing indicated that under this prov?sion a surplus :employee should.get the job in question as long as he can do it. As counsel for the _. Employer stated in his concluding argument, "The question is, can the grievor do the job? We are not looking for the best. We are looking for someone with the minimum qualifications." It seems~ to us that the grievor has the minimum qualifications to do the job of Observation and Detention Home Worker 2. It does not seem to us that to have the minimum qualifications for this job, the grievor must write English as if he were an Anglophone with a college degree. The griever's background as a :Supervisor of Juveniles 2 gave him sufficient knowledge, skills and experience to perform at a minimum level of competence all of the functions of an Observation and Detention Home Worker 2 .except the communication function. The grievor demonstrated at the hearing that he possessed at least the minimum level of competence that would be needed to qualify him for this position in the area of oral communication. And while the grievor's written communication in English may not approach that of an Anglophone college graduate, there is nothing in the record to indicate that the grievor's skills in this area are so poor as to fall below a minimum level of competence. On this latter point, we note that Mr. Martin criticized the written responses that the grievor made at the interview on a formal basis, i.e., spelling and grammar. He did not suggest that his English was so inadequate as to fail to convey to the reader the substance of the grievor's ideas. Indeed, Mr. Martin's testimony tended to indicate that he understood quite well the substance of the written responses provided by the grievor. The grievance is 'allowed. The griever is 11 1 12 , entitled to be appointed to the vacancy in the classification of Observation and Detention Home Worker 2 at the Observation and Detention Home in Ottawa. The Award shall be effective as of the date of the .hearing. We shall retain jurisdiction pending implementation. DATED at London, Ontario this 6th day of December, 1982. R.J. Roberts Vice Chairman "I concur" (see addendum attached) I.J. Thomson Member L E.R. O'Kelly Member 6:3300 e--+ 13 ADDENDUM I agree with the decision to award the Grievor thee position of Observation and Detention Worker Level 2 at Ottawa, Ontario. I disagree with the award of backpay and benefits only to the date of the hearing. I feel Mr. Simard should be awarded the sum total of pay and. benefits back.to October 6, 1982. This was the date he was notified he had not been successful in obtaining the position.