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HomeMy WebLinkAbout1982-0342.Mills.84-02-29Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: G. Brent Vice Chairman E.J. Bounsall Member D.B. Middleton Member For the Griever: P. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: L.M. McIntosh, Counsel Ministry of the Attorney General Hearing: December 10, 1982 April 19, 1983 October 21, 1983 OPSEU (Jack W. Mills) Grievor - And - .( I The Crown in Right of Ontario (Ministry of Government Services) Employer DECISION In an interim decision dated January 11, 1983 the Board determined that the griever’s continuous service should be counted from January 31, 1977. The question of continuous service arose in connection with the grievance dated May 3, 1982 in which the griever claimed that he should have been appointed to the position of Leasing Agent (Property Agent 2). It “as agreed by the parties that once the griever’s continuous service date was settled he would be either more senior than all of the successful applicants or the most junior of all of the applicants. Accordingly we no” know that the grievar is the most junior of all the applicants for the position. The position in question “as advertised in ‘Topics” (Ex. I) as follo”s: The following positions are available with the Ministry of Governlnent Services, Location: Queen's Park, Toronto. LFZASING AGgNTS (Property Agmt 2) (Schedule A) $21,500 - 24,700 (under review) (restricted) Required by the realty services branch to ne&tiate and co-ordinate the provision of new leases and lease renewals throughout Ontario, ensuring that leases meet client ministry’s requirements and are justifiable. Duties include: preparing offer to lease documentation and written reports; determining fair rental rates; negotiating such terms as escalation clauses, energy conservation items and methods of completing leasehold improvements. File GS-44. Qualifications: proven progressively responsible experience in the leasing field with emphasis on office leasing; knowledge of government policies and procedures re leasing with general knowledge of real estate appraisal, building construction and property management; ability to negotiate effectively and ensure that market rentals are 3 obtained; well developed communication skills. Less qualified applicants will be considered at a lower salary level. The position specification form for the position (Ex. ‘3) appears below: PURPOSE OF ‘THE POSITION To negotiate and arrange for new leases and lease renewals in assigned region, ensuring that leases meet client ministry requirements and are economically justifiable, and occasionally to negotiate leasing out of vacant government owned space to the private sector. SUMMARY OF WTIES AND RESPONSIBILITIES 1. Upon request of client Ministry or Branch for new lease, locates several properties which meet requirements, and negotiates final choice by:- 70x - locating properties which meet client requirements, by personal search and study of an area, discussion with realtors, advertising, etc.; - presenting several alternative properties and arranging for inspection by client representative; - negotiating with owner or le ga 1 representative of property selected by client for fair terms and conditions including rental rate, complexities of tax and operating cost escalation clauses, responsibility for cost of maintenance, renovations, rearrangement of office layout and other leasehold improvements; - keeping supervisor informed, discussing problems, eg: failure to reach agreement, political pressure, etc.; - preparing ‘offer-to-lease” documents, often lengthy and complex, containing all terms and conditions of proposed rental agreement, for owner’s signature and submitting the “0 f fe r- to-lea se ” 6 “lease recommendation sheet” in the form of a report, and recommendation to supervisor for approval. 2. Arranges for and negotiates the renewal of leases in the Region when required, by:- 20x - determining fair rental rate of property lease to be renewed, by studying comparable properties on market in terms of availability and rates charged; -’ negotiating renewals of existing lease; ensuring fair terms, eg: rental rate, escalation clauses, leasehold improvements, etc. ; - keeping supervisor informed, discussing problems eg: owner demand for excessive rental rate, inability to reach agreement on conditions, etc.; - selecting,. when renewal of existing lease is deewd unsatisfactory, several alternative properties, by personal search of market, discussion with realtors, etc., taking photographs of properties, determining potential cost of moving client leasee; - preparing “lease recommendation” for client’s approval and signature; - approving renewal of leases within dele@tted financial authority, providing that annual expenditure does not increase by umre than 15% and recommending for approval by supervisor all leases over delegated limit or with increases of over 15%, by submitting report which includes the “‘offer-to-lease”, a signed “lease recommendation” and report on alternative buildings. 3. Perform other duties such as:- 10X - assisting supervisor in locating tenants for vacant government-owned space, usually small or remote property, by contacting private real estate agents, potential clients, Leasing Agents, etc.; - determining a “fair” rental rate for space, by analyzing existing rental rate or by calculating rental rate on basis of appraised value; referring problems to supervisor; - negotiating terms with prospective ieasee, drawing up leasee’s “offer”, submitting -0 f f e r ” to supervisor and recommending approM1 of lease; - as assigned. SKILLS AND KNOWLEDGE KEQUIKED TO PERFOKM THE WORK Several years of experience in leasing field. Good knowledge of practices, problems, developments and other matters pertaining to leasing. Knowledge of government policies and procedures re leasing. General knowledge of real estate appraisal and of building construction. Ability to negotiate effectively. Tact and integrity. The griever’s employment history was outlined in the interim d&ision. Briefly stated, he was employed in the Ministry of Revenue as a Realty Assessor in the Succession Duty Branch from September 24, 1968 until 1975 when the Succession Duty legislation was repealed and his position was abolished. He then worked in the North York Assessment Office as an Assessor on a temporary placement. As found in our earlier decision he resigned from the Ontario Public Service in 1975 or 1976 and rejoined the Public Service in 1977 as a probationary employee and is currently a Property Assessor III in the Ministry of Revenue. In the Succession Duty Branch the griever was responsible for assessing real estate, including leasehold interests, in order to value it for Succession Duty purposes upon the death of the owner. In order to do this he was required to be familiar with the market value of real estate in the parts of the province to which he was assigned. The work also involved negotiations with estate representatives concerning the real estate valuation. These negotiations were not aimed at reaching a compromise valuation on which all parties could agree, but rather appear to have been discussions about the bases on which the valuations had been reached by the Kealty Assessor. In doing this work the griever worked WI thout direct day-to-day supervision. The griever’s work as a Property Assessor III in.the Ministry of l&venue involves assessing real estate for taxation put-poses. His work there involves the assessment of large rental properties and requires him to have a knowledge of current rental rates. The griever had some experience with a previous employer (York County) locating property which met the requirements of an agency and arranging for the acquisition of that property. The bulk of his working experience and of the courses which he has taken since beginning employment deal with real estate appraisal. The griever was interviewed for the position in dispute on Monday m 6 April 5, lYt12. Although there was some confusion on the griever’s part about the preparation done for the interview, we accept that he returned from vacation on March 2Yth and that he spent some time preparing for the interview based on his knowledge of the job requirements as set out in the advertisement. The griever testified that he considered that the interview questions fairly reflected the job requirements and that he was given an opportunity to discuss his past work experience. The questions prepared for the interview (Ex. 14) are reproduced below: 1. 2. 3. 4. 5. 6. 7. 8. 9. Although you have provided an application and/or resume of your work experience, in your own words, please indicate why you are interested in this posi tio” and also give a run down of your work history with particular emphasis on those facets effecting this position. What do you feel has been your most difficult leasing negotiation and how did you resolve it? What are the two main covenants in a leasing agr?ellEnt? If you were requested to locate office accommodation in a given Municipality what steps would you take in completing this assignment? You are renewing a lease with an option to renew at a rental to be negotiated. upon contacting the landlord you felt his renewal rate was too hi gh. How would you negotiate a reasonable rental rate? If the type of space required cannot be found in a designated area, what would be your course of action? What are the differences between a gross lease and a “et lease? What is the purpose of an escalation clause in a lease agreerrent and how does it apply? Please state in your own words the meaning of the following as it relates to the leasing of office accommodation: (a) front end benefit (b) effective rent ,(c) turnkey 10. In your previous leasing experience what was your involvement in leasehold improvements and tell u8 how this aspect of the work was completed in finalizing your agreement. 11. What aspects of your present position do you dislike or find most difficult (or vice versa)? The griever testified that he was not able to answer all of the questions which he was asked. It was his impression that some of the questions may have been “trick questions”; however, he never explained what he meant by that and how that’sssessment squared with his overall view that the interview was fair. In view of his evidence that the interview was fair and that he left it feeling good about his performance, we do not put any weight on the opinion that there were “trick questions”asked in the interview. In view of the time which had elapsed since the interview, the griever was unable to recall every question which he was.asked. He did recall being asked question 9 and admitting that he had never heard of the term “turnkey”. He also recalled being asked questions 4, 5, and 6 and believed that he was also asked questions 7, 8, 10, and 11. He was unsure about being asked questions 1,. 2, and 3, although he would not dispute any assertion that they were asked. The griever testified that a great deal of his working time is spent locating properties and determining comparable sales in order to ascertain market values. He said that his job does not involve him in looking at property from the point of view of determining its suitability for government agencies to occupy as tenants. It was his opinion that there would not be too much to negotiate regarding price because with major landlords one either paid the asking price or did not take the space. He also said that the standard government leasing agreement would leave very little to be negotiated in terms of other covenants. The griever testified that he has never had to negotiate terms and conditions of a lease or to prepare offers to lease and that he is never heen required to keep a supervisor informed in his previous work. The griever also testified that he has no experience in the preparation of lease recommendations, locating tenants for vacant governmnt space, or determining a fair rental rate with the government. The successful applicant with whom the griever has compared himself for the purposes of this case is Mr. Koy Skinner. Mr. Skinner’s service date is June 29, lY70. He was appointed to the position of Property Agent I. Given the last sentence.of the advertisement (Ex. 1, supra) we can conclude that he was probably considered to be a “less qualified applicant”. The griever asserts that he is more qualified than Mr. Skinner although he Knows nothing of the Mr. Skinner’s background or previous employment other than that he was a Clerk 5 a.t the time of the competition in question. The only evidence which we have about Mr. Skinner’s qualifications comes from Mr. James Glenny, who is a Property Agent 2 (Property Administrator) and who is also familiar with the work done by those Property Agents who are Leasing Agents. Mr. Glenny is also the local Union president in the area which includes Government Services in the Ferguson Block. He said that it would be unusual for a Clerk 5 to go to the Property Agent position because the two jobs are unrelated. On cross-examination he said that as a Clerk 5 Mr. Skinner handled 9 escalation clauses in leases from the accounting point of view. He did not know whether Mr. Skinner had ever taken any of the courses leading to a designation relating to leasing agent’s work. As we understand the issue put to us, the Employer Is not taking the position that the griever was not qualified for the job in question. Indeed, we would have to agree that the griever has extensive experience in real estate appraisal which would make him familiar with the real estate market in general and which would be applicable to the requirements of the job in dispute. Much of his particular experience as an appraiser would not have given him the specific background in leases and leasing or in the duties required of someone whose primary job is locating vacant space suitable for occupation by a tenant client and negotiating with a view toward agreeing on all of the outstanding issues prior to occupation. There was also evidence from the griever and his witnesses, all of whom had formerly served as Keal~ty Assessors in the Succession Duty Branch, that the job which they all held in the Succession Duty Branch was more “sign1 ficant” than the Property Agent (Leasing Agent) job. From the evidence beEore us we can conclude that the griever is qualified for the position and that nothing is known about Mr. Skinner’s particular qualifications other than the general statement that it would be unusual for a Clerk 5 to go directly to a position like this. Such an opinion must be balanced against the evidence that Mr. Skinner’s previous work did involve him to some extent in evaluating leases. Both parties accepted that the onus is on the griever to establish a prima facie case. The clause in the agreement which deals with the mstter in dispute is Article 4.3 and it is reproduced below: In filling a vacancy, the Employer shall give primary consideration to qualifications and abllf ty to perform the req.uired duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. As already indicated, the griever’s “length of continuous service” is less than Mr. Skinner’s. The griever comes to this case as the most junior of the applicants and with approximately seven years less continuous service than Mr. Skinner. The Employer did not call any evidence reerding the substance of the matter before us. We therefore must consider whether the griever has established a prima facie case of the Employer’s breach of Article 4.3 so that he should succeed. All of the evidence before us indicates that the griever was given a fair and reasonable opportunity to present his qualifications to the Employer. He was given an interview which he considered to be fair and about which he felt positively. The questions asked in the interview were judged by him to be related to the job and to be reasonable. Throughout this case there has been no suggestion that there was any discrimination against the griever or lack of good faith on the part of the Employer. There fore, there is no evidence from which we can conclude that the process by which the selection was made was faulty. The sole issue then is whether there was, in all other respects, compliance with Article 4.3. In all of the cases cited to us in which this Board has considered the meaning of Article 4.3 it has been accepted, as indeed we accept, tnat Article 4.3 is a ‘hybrid” type of clause. That is, there are clauses which say that the senior person, if qualified should fill a vacancy; there are clauses which say that where applicants are relatively equal, then the senior person should fill the 11 vacancy; and there are clauses which simply set out the considerations which the Employer must weigh without necessarily determining that seniority, or length of service, will be the tie breaker. The latter type of clause is what is generally referred to as a ‘hybrid”and that is the sort of provision which we find in Article 4.3. We agree with the position that where a junior applicant is chosen over a senior applicant that the Employer must satisfy the Board that the incumbent is “*demonstrably superior” to the senior applicant (See, for example, Brown 597/81). In Gras 139/79, where a junior applicant was claiming that the job should have been awarded to him, the Board stated, at page 11: It is clear from the language of Article 4.3 and from previous decisions of this Board that if the griever has proved superior qualifications and ability to perform the required duties, then seniority is not a factor and he is entitled to the job. Thus the issue in this case is whether such superiority has been .proved. We specifically adopt this test and consider that it is the appropriate test to be applied when a junior employee is alleging that the Employer should have awarded the job to him pursuant to Article 4.3. Moreover, as was pointed out in the Saras case (supra), and all of the other cases cited to us, the important considerations .are the qualifications and ability to perform the required job. Accordingly, the fact that a person is superbly qualified in a general sense, so that he may in fact be qualifded for a more demanding job, does not matter because the proper test of qualifications and ability must be in the context of the posted position. Having defined the test which the griever must meet in order to succeed, it is therefore possible to determine the prima facie case which the griever must establish In order to succeed. It is our belief 12 that it is not possible to determine what a prima facie case is inany particular set of circumstances without first determining the question before the Board, or in other words, the test which the griever must meet. Here the question is ‘Ts the griever so superior to Mr. Skinner that the Employer should not have considered Mr. Skinner’s greater seni ori ty? ‘L Therefore, in order to succeed, the griever must satisfy us that his qualifications are demonstrably superior to Mr. Skinner’s. A fair summary of the evidence before us is that, on balance, the griever is probably qualified and able to do the job in question. It is also reasonable to conclude that the griever’s former job in the Succession Duty Branch was one which may have involved greater independence and responsibility than the job in question. There is also evidence that the griever had never been involved in the particular sort of leasing work which was required in this job and that he had only his general background in real estate to rely on. We have no evidence concerning Mr. Skinner’s qualifications and ability other than that given by Mr. Glenny. Clearly Mr. Glenny did not have a thorough knowledge of Mr. Skinner’s background, qualifications, and ability. There is evidence from Mr. Glenny which shows that Mr. Skinner was previously employed in a job in the Ministry of Government Services which brought him into some contact with leases from an accounting point of view. Therefore, there is no basis for saying that Mr. Skinner was totally unfamiliar with leases and leasing in the sense required in this job. As we have stated earlier, in order to succeed i t is incumbent on the junior employee to show that he is the superior candidate. It is impossible to do this just by reference to the junior applicant’s 13 qualifications, unless one were faced with a situation where the junior employee was so endowed with the very qualifications and abilities needed for the particular job that it would be reasonable to conclude that there could be no better qualified candidate. The griever’s qualifications and abilities are not so directly transferable to this particular job that we could draw the latter conclusion. There fore, we require some evidence of the incumbent’s qualifjcations from the griever in order to allow us to conclude that griever was so superior to the incumbent that the Employer must answer the case or lose it. Evidence that Mr. Skinner possessed none of the qualifications and abilities to perform the job would have put the Employer in that position. We have no such evidence. Evidence that all of Mr. Skinner’s qualifications were not known but that he may have possessed some qualifications which were relevant to the particular position is not sufficient to put the Employer in that position because there is no real basis for concluding that the griever possessed superior qualifications to Mr. Skinner as opposed to being relatively equal to Mr. Skinner. There is no denying that the griever is an able .pe.rson with many years of experience in the various aspects of assessment. We do not in any way denigrate or minimize that experience. On the evidence before “6, we can only say that it is not so directly relevant to the job in question that we are reasonably able conclude, on that basis alone and without evidence of Mr. Skinner’s qualifications, that the griever was demonstrably superior to the more senior applicant. For all of the reasons set out abow, the grievance is dismissed. DATED AT LONDON, ONTARIO THIS 29th DAY OF February m 1984. j?&!i %b.+a Gail Brent, Vice-Chairmn. D. B. Middleton, Ma&r. "decision to follow" E. J. Bounsall, Member.