HomeMy WebLinkAbout1982-0178.Ibbotson.82-10-06January 6, 1983
MEMORANDUM
i
Subject: Erratum re: 178/82 Ibbotson !
Please amend your copy of 178/82 Jbbotson by correcting the case number from
175/82 (as issued) to 178/82.
The Board’s decision was issued October 7th, 1982. It followed a three-day
hearing where, of hk. Ibbotson’s final grievances registered as 97/82, 175/C?,
176182, 177182 & 178182, all but 178182 were settled.
H.F. Goss
Registrar
/lb
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AWARD
The Grievor was employed as a Steam Plant Engineer
at the Rideau Correctional Centre, Burritt's Rapids, Ontario.
He began his employment at the Centre in March of 1979, coming
to Burritt's Rapids from Guelph and Kitchener where he started
in March of 1977. On February 24, 1982 he was-dismissed from
his.employment. The reasons for the dismissal as stated in the
letter of dismissal are as follows:
"(1) On the premises of the Rideau Correctional
Centre you sold illegal drugs on October
27 and 28;1980 to an inmate incarcerated
at that institution.
(2) On October 29, 1980 you admitted 'to an
Ontario Provincial Police under cover
narcotics officer that you sold illegal drugs on October 27, 1980, to an inmate
incarcerated at the Rideau Correctional Centre and further indicated that this
was a common practice."
Also stated in the letter as being grounds for dismissal are
the Griever's initial failure to comply with section 22 of
the Ministry of Correctional Services Act (with respect to
the giving of a statement to an investigator) and a one day
suspension without pay for reporting to duty with breath
smelling of alcohol.
There are two issues involved in this matter:
1. The question of whether or not the dismissal was for
cause and
just
2. Whether or not the delegation of authority to dismiss frcm
the Deputv Minister to ',e Superintendent was a yralid cne.
We propose to deal first with the question of the
dismissal. Depending on t?e outcome of &is aart Of e,?e m;iatter,
it nay not be necessary to deal with the question of .+~leL:L2tion.
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As a matter of general background, the Institution
is a medium security Institution with its own farm. It provides
trades, academic work, alcohol and drug counselling etc. All of
the inmates are housed in a large dormitory where they take their
meals. When they leave the dormitory their time out is logged on a
daily special duty control sheet by a control officer-at the ioor of
the dormitory. Approximately fifty feet from the dormitory
is a steam plant with a boiler room in which the Grievor works.
As required by relevant legislation there must be one stationary
engineer on,duty in the boiler room at all times. The engineer
on duty works with an inmate who is assigned to that position.
As with any other Institution, contraband does come into the
Institution and the inmates,although they are not supposed to,
do have certain sums of money available to them. It is a matter
of some ~concern to the Superintendent of this Institution as with
others that drugs not be available within the Institution,
particularly because this Institution provides alcohol and drug
counselling.
Much of the evidence available tc the Ministry concerning
the alleged drug activity of the Grievor came 'to it from an
informer who will be known as X. This informer was an inmate
tie had worked with the Ontario Provincial Police prior to
admission and who worked with the staff of the Institution. 3 e
staff of the Institution who gave evidence St the ?.ezrinS,
ha.1 conversations with X and had 'I?e benefit of 2 r.eP)rt <i.:en
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@ X to a police officer in late 1980. % was not called at
the hearing nor was his report filed and accordingly evidence
concerning the Grievor's alleged drug activity is circumstantial.
The Deputy Superintendent, David Gorman, met with
X at the Institution on October 27, 1980. At lo:15 a.m.,.X
handed over to Mr. Gorman a small plastic bag, plus five
rolled cigarettes. The contents of the bag and of the cigarettes
were,in our view,marihuana amounting to a total weight of
approximately seven grams. At approximately 1:30 p.m. on the
same day X met again with Hr. Gorman and was given $14.00 to
pay for the drugs he had received that morning.
On October 28, 1980, X met again with Mr. Gorman at
1:lO p.m. At this time X handed over to Mr. Gorman a plastic
bag approximately ten grams in weight. X was given $25.00 to
pay for that bag. X also handed over to Mr. Gorman, $35.00
which X had received from an undisclosed source.
Later that afternoon X met again with Mz. Gorman and,
indicated that he did not wish to continue his undercover
activities. He was given the $35.00 back. Thus the inmate X
had apparently received on October 21 and 28 a total of 11 grams
of marihuana with a value of approximately $39.00. We can
speculate that he may indeed have received more and that the
$35.00 in question came from his sale to other inmates of
cigarettes from the amount he had received, but there is no
evidence concerning this.
On October 29, 1980, the Grievor and a Nr. Bennett,
a known drug dealer, met undercover officer Knapp in a van
belonging to the Grievor in the MacDonald's restaurant parking
lot in Kingston. The Grievor had driven Bennett to Kingston
from Smith 'falls to enable Bennett-to pick up a package~at the
bus station. The Griever, Mr. Bennett, and Constable Knapp
talked for about 25 minutes in the back of the van. Durinq this
conversation Bennett was negotiating with Knapp to buy large
quantities of hashish and marihuana and the Parties shared a
/ joint of hash. (Knapp indicated at the hearing that he "simulated".)
During the conversation in the~van the Grievor indicated that he
worked at Burritt's Rapids and had 'just taken two ounces of
marihuana into an inmate a couple of days ago." He also indicated
that the inmate had sold it inside for $2.00 a joint and that
it was "a common practice'! Whether the latter comment was a
reference to 'the Griever's activities or to the activities of
other persons including the-Grievor or not, is unclear.
Subsequently, Constable Knapp, arranged with
Bennett to buy a quarter pound of hashish and Bennett was
arrested in mid-December, 1980.
On November 4, 1980 acting on information received
the staff of the Institution searched tie boiler room and found
a small package containing two c.igarettes of marihuana.
In September of 1981, the Griever's house was searched
under tie authority of a search warrant and a syringe, a roach
clip, and a hashish pioe and a small 5 gram ,cial were found.
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These items,with the exception of the syringe apparently had
traces of cannabis onthem. The Grievor indicated that they
were old and had been in a desk which he had moved directly
from Guelph three to four year's earlier. No explanation
was offered concerning the syringe which was found above
a ceiling tile.
In December 1981, the Grievor came to work with the
smell of alcohol on his breath. He was subsequently suspended
from work for one day as a result of this and the Ministry
decided to pursue the'alleqations concerning drugs, arising
from the incidents approximately one year before.
Following an investigation, the Grievor was dismissed on
February 1982.
Considerable evidence was given concerning tie
activities in the boiler room area of the Institution. On .
October 25, 26, 27, and 28, 1980, the Grievor worked with
inmates other than inmate X on the mid-night to 8:OO.a.m. shift.
On October 29, 1980 he was off duty and the "van incident"
occurred. Inmate X worked the 8:00 a.m. to 4:00 p.m. shift on
Saturday, October 25, apparently.on Sunday, October 26, Monday,
October 27 and Tuesday, &tober 29, 1980. The evidence from
the special duty control sheet shows that it was X's normal
practice to leave the dormitory area between 6:00 and 7:00 in
the morning and to go to the boiler room. Some time before
.8:00 a.m. X would have breakfast back in the dormitor:. area
but it, is clear that on ',e days of Oc,toi;fr 15, 26, 27 and 25
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there would be anywhere from 3 hour to i hour when the
Griever, the inmate with whom he was working, and X would
be in the boiler room. No evidence~was given concerning
anybody who saw the Grievor talking to X during these
times but it is undoubted that the opportunity to do SO
existed and that conversations took place.
No drug charges were ever laid againstthe
Grievor, and the basic question is whether or not it has
been proven that the Grievor sold drugs to X on October 27
and 28, 1980 or thereabouts.
With respect to October 27, the evidence is
clear that before the Grievor went home at 8:00 a.m., he
had an opportunity to meet with X. Later that day X did
turn o~ver approximately seven grams of marihuana to
Ur. Goraan. With respect to October 28 it is also clear
that before he left for, home at 8:00 a.m. the Griever had
an opportunity to meet with X and that X turned over a
further ten grams or so of narihuana to Xr. Gormao laxer
that day. Put at its highest this evidence as well as
the evidence concerning the van incident is the nGb of the
Uinistry’s case.
The Grievor ad..itted at the hearing tha? he did
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I. ,
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to be -t&by them and to be one of, the group, he made the
statement. He did not admit making the statement concerning
the "common practice" and since that statement did r.Dt appear
in Officer Knapp's notes made at the time and only subsequently
showed up in his report, we are not totally,satisfied that this
part of the statement was made. In our view that sort of comment
would be important and it would be the sort of thing that Officer
Knapp would put into his notes as soon as possible after it was
made.
What does concern us is the statement made @ the
Grievor on October 29 that he did take two ounces of marihuana
into the Institution a couple of days earlier. As suggested
by Mr. Benedict in,his able presentation, it is a singular
coincidence that a couple of days earlier X had turned over
to Mr. Gorman.some seven grams of marihuana. How did the
Grievor know about this transaction? One inference is,of
course,that it was his transaction. Another one is that he
discussed X's activities either with X or with the inmate
with whom he was. working on that day or others and had learned
of the transaction. One thing that does concern us .is the
discrepancies in amounts. In the statement the Grievor refers
to two ounces. Two ounces is approximately 77 grams. Only
seven grams were turned over by X to Mr. Gorman on October 27.
Either X was holding out, or had sold a considerable amount
already to inmates or some other possibility exists. If i?::ee.-:
X was !?oldinq out, that would suggest he was not teinq Eorthriq?.:
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,
with the people in the Institution and his ~orci might
well not be trusted, or that the staff were allo?ving him
to sell as his profit from being an informer.
The evidence of X was not received by us in
any form. ‘#hat we do have is evidence concerning action
taken by the staff of the Institution after talking with
S and the fact that X did turn over certain drugs to the
staff at the Institution. If this were a criminal charge,
and X chose to give evidence, he would of course being an
informer and having taken part in criminal activity, be an
accomplice. As such his evidence would have to be corrobo-
rated by evidence independent of him. He did not testify
and the only evidence on October 27 and 28 capable off.
corroborating what he might have said is evidence concerning
opportunity. S;ch opportunity also existed in other i,nmates
and other members of staff. Thus the opportunity is not
even exclusive. Given the disparity in amounts, the
fact that no one saw X talk to the Grievor on October 27.
and 28, the fact that there is.no direct evidence of the
transactions, we are left in the position that we are highly
suspicious of the Grievor but are not satisfied on the
balance of probabilities t!:at the evidence has shown tile
Grievor to have taken part in these sales. In reaching
this conclusion we are doing so on the basis of an ab.sence
of clear and credible evidence> given that this is a serious
m3t:er. In the result the grievance is :a?lo~ec! and _!ie
G:‘ievor is ordered to be reinsrated ;vi:!l lost :~ag:e~ ;u~d
!>\~!l,-;‘i~:~s. I\‘+ rfl:>tn;n iul-isclir,ri~:: clvb:r this;.
!Je cannot close without some comment concerning +-\e
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on our decision, we are concerned that it took approximately
14 months after the event before the decision was made to
discipline the Grievor for the alleged drug sales. It is
true that much of the investigation against the Grievor and
others was ongoing until September or October of 1981, but
by that date at least whatever evidence was available to the
Ministry had been received. It was not until the Griever
came to work with alcohol on his breath in December of 1981
that a decision was made to proceed. Given that the presence
of drugs in an Institution is a very serious matter, we
suggest that action might have been taken in the fall of 1981.
In his evidence the Grievor disclaimed smoking in
the van on October 29, 1980, as well as disclaimed any use of
marihuana to the officers conducting the search in September
- of-1981. owe were not impressed with these disclaimers nor
were we impressed with his explanation for the paraphernalia
found at ,his home at that time. We are also reasonably suspicious
that at t!!e time of the van incident in October of 1980 he knew
.very well who Mr. Bennett was and &at activities he was engaged
in. It is a reasonable speculation that in 1980 and 1981 he was
a user of drugs. Since he was a peace officer, we would like to
make it clear that it is not with any amount of satisfaction t.?at
we allow the grievance but do so solely oh rhe basis 0:‘ the
poor quality of the evidence and the strict application of the
burden of proof which in this case works In his favour.
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DATED at London, Ontario this 7th day of October, 1952.
F.D. Collom Xember
"I dissent" (see attached)
E.R. O'Kelly Member
DISSENT
I find with regert that I am unable to agree ,with the miority
award in this case. The Chairman has set down the essential
evidence and it xi11 therefore not be necesscJ to repeat it here.
There is no doubt the grievor chose to associate with the drug
dealer Bennett and drove hin to Kixigston on Cct. 29/80 in the
grievol’s van. He permitted Bennett and Constable Knapp-(a police
under cover agent ) to use his van for 25 minutes while negotiating
a deal in drugs. He admitted to Knapp selling marihuana in the
hlrritt’s Rapids institution a couple of days before. All of this
inspite of the fact the griever was a Peace Officer and receiving
the Custodial Allowance at this institution which is one designated
for the rehabilitation of inmates with drug and alcohol problem.
The part played by “X” JUJ be open to question. However, it nould
appear he had nothing to gain fros his part in the affair and
furthermore Ibbotson’s conversation with Constable Knapp on Oct.
29th ties in.with nX”‘s reports on his activities on Oct. 27th
and Oct. 28tjl.
I share the conocrn of the Chaimauin regard to the quality of
the evidence presented at tiiis hearing, however on balance I
feel it is adequate to support the dismissal of Zdr. Ibbotson.
I would have denied the grievance.
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182/82
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Between: OPSEU (Carol De Los SantOS)
Grievor
and
The Crown in Right of Ontario
(Ministry of Colleges and
Universities)
Employer
Before: R. J. Roberts - Vice Chairman
W. A. Lobraico Member
E. McIntyre Member
For the Grievor: J. K. A. Hayes, COUnSd
Golden, Levinson
Barristers & SOliCitOrS
For the Employer: R. B. Itenson -*
Staff Relations Officer
Civil Service Commission
Hearing: June 22, 1982
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AWARD,
This is a disturbing case. At the conclusion of the
evidence offered on behalf of the grievor, the Employer
made a motion for a non-suit on the ground that the
grievor had not led sufficient evidence to establish
a prima facie case on all of the issues that were
essential to success on her grievance. In line with
this motion, the Employer opted to submit no evidence.
Argument followed. The case then was remitted to this
panel for decision. Apparently, this was only the fourth
time in the history of the Grievance Settlement Board
that a motion for non-suit had been made.
With considerable regret, we have come to the
,conclusion that the motion for non-suit in this case
must be granted. The case involved a job posting
grievance. Under the jurisprudence of this Board, the
grievor had the burden of proving either that the
selection procedure adopted by the Employer was unfair
and hence then competition should--be re-run; or, that
under a proper~ application of the terms of Article 4.3
of the Collective Agreement, she should have been the
successful candidate for the job.* The grievor did not
pIace,sufficient facts in evidence to establish a prima
*Of aurse,~it is always opan to a grievcx to sM.4 that an inappropriate
sel&ctiOn prccedurewasused ard tbtupm a@ication of appnpriaie criteri he or she should have been placed in the pxted position.
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facie case on either of these alternatives.
Before leaving this brief summary of our conclusions
in this case, we wish to allude to the reasons for our
considerable regret. First, this ruling which we were
required to make pursuant to the Employer's motion does
little to promote satisfactory labour-management relations.
Any consideration of what might have been legitimate
substantive issues has been thwarted.
Secondly, in a job posting grievance such as the one
at hand, the motion for non-suit seems to be little more
thana snare to trap then unwary. Most of the'facts regarding.
the selection procedure used in a competition are peculiary
within the knowledge 'of the Employer and not the grievor,who
has then burden. In recognition of this, other "representatives
of the' Employer' have made what might be called 'full
disclosure' by calling witnesses, including those who made
the selection, so~that the' Board could be informed as to
how the competition was conducted and the reasons for ,which
the 'cho~ice was made. " Re' 'Genys~ and Ministry of the Environment,
G.S.B. #52/80 (Jolliffe), at 7. I Given the existence of
t.hi~s practise, counsel for the.grievor undoubtedly was
surprised by the Employer's motion.
We are so disturbed by this factor that if we were
convinced that counsel for the grievor had elicited all
of the evidence reasonably within his grasp regarding
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the fairness of the selection procedure -- and yet failed to
establish a prima facie case -- we would have been tempted
e to change the law of this Board by shifting ,to the Employer
both components of the burden of proof, i.e., burden of
producing evidence and burden of persuasion, on the issue
of the fairness of the selection procedure established
by the Employer for filling the posted vacancy.
We now turn to detailed consideration of the case.
The law relating to motions for non-suit in job posting
cases was establishedzintwo earlier decisions of this
Board, Re Genys, supra, and Re Fish and Ministry of Labour,
G.S.B. #139/77 (Swinton). In the latter case, Professor
Swinton set forth the basic requirement for success on
such a motion, saying, "A motion for non-suit requires
the Board to decide whether the grievor has led a sufficient
quantum of probative evidence to make a prima facie case."
Id. at 6. A prima facie cake is established by evidence
of a particular fact-in-issue which is sufficient to
jatisfy the Board of the existence of that fact. Where
circumstantial evidence is submitted on a particular
question of fact the sufficiency of this evidence to
establish a prima facie case might be tested by asking,
"Are there facts in evidence which if unanswered would
justify men of ordinary reason and fairness in affirming
the question which the plaintiff is bound to maintain?"
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Wigmore on Evidence, s.2494.
In the present case, counsel for the grievor indicated
that the thrust of his case would be that the Employer
used an unfair or inappropriate selection procedure and
as a result, the competition must be re-run. Accordingly,
it was crucial to the case for the grievor to submit evidence
which if unanswered would justify a person of ordinary
reason and fairnessinconcluding ‘that the selection procedure
was unfair. The evidence that was submitted on behalf
of the grievor falls short, it seems, of satisfying this
test.
Only the grievor testified in the case-in-chief.
understandably, she knew little of the selection procedure
which was mused. All.that she really knew was that she had
submitted a resume in response to the job posting in question,
which was for an industrial training consultant in the
tiinistry of Colleges and Universities. The grievor
testified that she was not even granted an interview.
She found this strange because the same resume had fetched
her an interview with respect to a previous job posting
for an industrial training consultant in the same Ministry.
There was little, if any, other evidence~to support
the grievor's claim that the selection procedure must have
been unfair. The grievor gave brief testimony that she
was acquainted with the successful candidate for the
job and that she believed the successful candidate was
not as well versed as she with respect to certain routine
policies and procedures within the relevant Branch:
of the Ministry. There was no evidence to indicate
what the qualifications of the successful candidate
were. The grievor did not call the successful candidate
to give evidence, although it seems that she was available
to the grievor.
The grievor did testify that in a conversation
- with her supervisor after the selection procedure
was comp,leted, he indicated to her that he believed
she had not been granted an interview because
in the history.of the Branch, no Clerk had ever been made
a Consultant. The jump was too great. At the same time,
the evidence indicated that the grievor's supervisor
was not a member of the selection panel. There was no
evidence,to indicate that the supervisor had discussed
her application with the selection panel.
The grievor also gave considerable evidence on
her qualifications for the job in question. There was,
however, no evidence of the qualifications of the
successful candidate. Further, there was no evidence
,of the qualifications of other candidates who had reached
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the interview stage.
There ~was, however, submitted by counsel for the
grievor a Stage 2 answer to the present grievance from
H.T. Beggs, Director of Operation, Skills Development
Division, Ministry of Colleges and Universities, which
commented on the qualifications of other candidates
as follows :
I am writing today to formally report to you the outcome of our meeting of April 2, 1982, which
was held as' the result of the grievance which you initiated on February 22, 1982 pertaining to competition ED/CU 205/81 - Industrial Training Consultant, East Toronto.
. . . At that meeting, I had the'opportunity to review
the information presented by you and Mr. Jim Best, Staff Representative ~of the Ontario Public Service
Employees~' Union, and ~to examine the qualification criteria established for the competition, your
personal'resume, and the qualifications of candidates
who' wer'e inter'viewed. On that basis, I am of the opinion that, at the' time then competi.tion was called,
several candidates whd possessed stronger qualifications
than you were, in fact, available for interview, and were ther.efore granted,the opportunity to meet with
the selection.panel in formal interviews for the position advertised.
This letter, which is the only evidence we have regarding . .
the other candidates in the competition, states that in
the opinion of the writer they possessed stronger qualifica-
tions than the grievor.
Can these facts if left unanswered justify a person
of ordinary reason and fairness in concluding that the
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selection~procedure used by the Employer was inappropriate
or unfair? We think not. At best, the circumstances
proven by the grievor go no farther than to.establish'
that she suspected that the selection procedure was
unfair. This falls far short of establishing a prima
facie case for the grievor. In this regard, we note that
in Fish, supra, where the Board had considerably more
reason to believe that procedural unfairness had occurred,
the grievance nevertheless was dismissed in response to
a motion for non-suit. See id. at 6-7.
We hasten to reiterate what we said previously in
this Award, i.e., that had we been convinced that the
grievor elicited all of the evidence reasonably at her
dkposal regarding the unfairness of the selection
procedure, yet still fell short of establishing a
prima"fa.cie 'case of unfairness, we would have been tempted
~to change the law of .this hoard. The grievqr, however;~.
did not. The successful applicant could have been called
by the grievor to,give evidence reg.$rding her own
qualifications for the position and the questions asked
or comments ma~de during the interview process. The
grlevor might also have been able to secure a copy of
the application and resume of the successful applicant.
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See Genys, supra, where the grievor did submit in evidence
the application of the successful candidate. There was
no indication by counsel for the grievor that he had
attempted to secure such additional evidence and could
not because of lack of co-operation or unavailability.
The grievance is dismissed.
DATED AT~London, Ontario this 6th day of October, 19S2.
, Vice-Chairman
"I concur"
W. A. Lobraico, Member
"I dissent" (see attached)
I?. NcIn<yre; Member
+ DISSENT
I am compelled to dissent from the decision of
the majority on several aspects of their award.
In my view the majority.has wrongly interpreted
the current state of'arbitral jurisprudence with respect to
the nature of the prima facie case which must be led by the
grievor in a case such as this involving competitive promotion
language. The majority has concluded that to establish a prima
facie case, the grievor would be required to show that on the
comparison between herself and the incumbent, she should have been
the successful candidate fcr the job, This conclusion is in direct
contradiction to the weight of arbital authority which is succinctly
stated in Brown and Beatty; Canadian Labour Arbritration, (1977),
para. 6: 3200, p.p. 260-1, as follows:
"Once an employee has made out a case that.he
does possess the requisite skill and ability for
the job on the standards invoked by the employer,
however, the onus will shift to the employer 'I
to come forward and establish the grounds for
its opinion"."
There are a number of decisions which have followed this line
of reasoning, including, Re Bridge and TanR Co. of Canada Ltd. and
U.S.W. Local 2537, 1975 9 L.A.C. (2dJ 47 (Weatherill), Re Corporation
of the Town of Valley East and Canadian Union of Public Employees,
~Local 6, (198 1, 27 L.A.C. (2d) 154, (Kennedy),and Ontario Nurses
Association and Elisabeth Bruyere Health Centre (August 30th, 1982)
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(Saltman), (unreported). The Corporation of the Town of Valley East
case was very similar to the matter before this board. It also
was a promotion case involving competitive seniority language.
The grievor gave evidence establishing that he could do the job.
No evidence was called with respect to'the comparative skills
and abilities of the incumbents. Mr. Kennedy at page 160 says:
"In applying the foregoing principles to the fact
situation before us, we think it reasonable to conclude
that the employee has made out a prima facie case
that he does possess the'requisite skill and ability
to perform the job in view of the fact that he has
performed it on four occasions in the past and, further
that on four occasions inthe past the company has
on a job posting awarded this specific job to the
grievor. It is self-evident that neither the grievor
nor the union is privy to the interal proceedings
and deliberations of the company and the grievor's -
evidence that the company has neither given him
any reason for its selection has not been refuted.
In the circumstances, we are satisfied, consistent with
the authorities referred to in Brown and Beatty,
that the onus has shifted t2 the company to come
forward and establish the grounds for its opinion that
the training, skill and efficiency of the grievor and
Denmore are not relatively equal. This was not done
in the evidence presented to the hearing."
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The Elisabeth Bruyere Health Centre case is also
similar to this one. It too involved a competitive job promotion
clause. There was no evidence called by either side with
respect to the comparative skill, 'competence, efficency and
qualifications of the incumbent and the grievor except to the
extent of some eivdence on absenteeism rates and prior experience.
The grievor howevertendered evidence sufficient to establish that
she had the necessary skill, competence, efficiency and qualifications
to perform the job in question. That Board said that thiswas a
sufficient prima facie case to shift the onus to the employer
to establish the basis of the selection.
It is clear from these cases that, while it
is necessary for the grievor to establish a prima facie case,
that this is done when the grievor establishes that he or she
does possess the requisite skill, and ability for the job. At
this point, the onus then shifts to the employer. An application
of this analysis to the evidence tendered in this case clearly
shifts the onus to the employer to establish the basis for its
decision.
The majority, while recoynisiny that the facts regarding
the selection procedure used in the cornpetiTion are peculiarly within
the knowledge of the employer and not the grievor, has
not taken the next step in shifting the burden to the employer.
terms:
Rather, the majority has set up a test in these
‘.
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"We are so disturbed by this factor that if we
were convinced that counsel for the yrievor had
elicited all the evidence reasonably within its
grasp regarding the fairness of the selection
procedure.... we would have been tempted to
change the law of this board by shifting to
the employer both components of the burden
of proof...."
In my view this test is an inappropriate one in that it would
require the parties to enter into an exercise of calling evidence
on the availability of evidence; This could lead to no end of
problems. In this case- all the'Sbard knows as. to the
availability of evidence is the allegation by counsel for
the employer thatthe grievor was in the position to call
the incumbent. It is not appropriate to.accept this
type of assertion by counsel nor is it appropriate to expect
union counsel to testify as to difficulties in obtaining
evidence; The more reasonable approach would be,
to place the avidentiary burden as to the selection
process and the rationale for the decision automatically upon
the employer once it has been established by the grievor that
she has the skill and ability to do the job in question.
The second basis on which I would dissent from the
reasons of the majority, is on their assessment of the evidence.'
Even if one were to accept the legal analysis of the majority,
the evidence presented by the union establishes a prima facie
case. The collective agreement requires that the employer
"shall give primary consideration to qualifications and ability
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to perform the required duties". It was the union's assertion
that the employer, with respect to Mrs. De Los Santos, did not
give the consideration required. My review of the evidence
.‘inBicates that there is evidence to support this assertion.
1. Mrs. De Los Santos was not given an interview
by the selection committee.
2. The evidence given by the grievor with respect
to's conversation with her superior would indicate
that he was not consulted with respect to her abilities.
It would appear therefore, that consideration was
given to the grievor only to the extent that her
qualifications were reflected in her resume. No
consideration was given to her abilities.
Accordingly, there is a prima facie case made out
by the grievor that the employer has breached the first part
of Artical 4.3. On this issue, as distinct to the issue of the
comparison between the incumbent and grievor, the union
has indeed called all evidence which is reasonably within
its grasp. The bunion cannot be reasonably be expected to
subpoena and examine the members of the assessment committee not
to subpoena and examine any other member of management who _s
may have been involved in considering the qualifications
and abilities of the applicants. The majority has indicated
that the incumbent could have called the successful applicant
to give evidence with respect to her qualifications and abilities.
However, this would have thrown absolutely no light on the first
and primary issue; whether the employer gave the required consideration
to the grievor.
.
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Finally, in my opinion, the majority has underrated
the evidence before the board with respect to the second issue:
the comparative qualification abilities of the Grievor and incumbent.
We have evidence as to the skills and knowledge which the employer
considered to be required for the position as set out in
the job posting notice. We also have evidence that the incumbent
had not worked in the department before, that she did not have
as much familiarity with the programs of the Ministry as did
Mrs. De Los Santos and further that she had difficulty in
performing her duties. Given the policy consideration setout
in the majority decision, that evidence establishes a prima
w case on the second issue such to require the
employer to come forwards with the evidence which is obviously
available to it.
In light of the above, I would have upheld the
grievance in this matter.
Elizabeth &cIntirs'
Member ouhe Board