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HomeMy WebLinkAbout1982-0472.Tenszen.83-06-09FIN THE MATTER OF AN-ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE'GRIEVANCE SETTLEMENT BOARD Between: CUPE (Mrs. Elsie Tensmen) Griever - And - The Crown in Right of Ontario (Ontario Housing Corporation)~ Employer Before: R.L. Verity, Q.C. Vice Chairman H. Weisbach Member H. Roberts Member For the Grievor: T. Edwards, Representative Canadian Union of Public Employees For the Employer: A.P. Tarasuk, Consultant Central Ontario Industrial Relations Institute Hearings: April 6, 1983 May 13, 1933 - I- 2 - AWARD In a promotion grievance,, Mrs.Elsie Tenszen grieves her failure to be promoted to the position of "Tenant Placement Officer F Home Visitor" with the Central Niagara Housing Authority at Wel~land. The relief sought was thq$ she be awarded the position with pay retroactive to August 23, 1982. The sudcessfuj applicant, now the incumbent Mrs. Jenny Giovinazzo,was present and participated fully at the Hearing. A vacancy occurred for the position of Tenant Placement Gfficer 7 Home Visitor in late July of 1982, All staff members in the Welland office were aware of the impending vacancy in June of 1982. Mr. Sam Kalmuk, the Welland Housing Authority Manager, asked Mrs.,Giovinazzo and one other employee if either would be interested in, applying for the position. The Manager made no sj,milar Inquiry of the Grievor. On July 26, the day the Griever returned from a three week vacation, 'Mrs. Giovinazzo informed her that she (Mrs. Giovinazzo) would be selected for the position. The Grievor, a Union Steward, was understandably upset by that statement. In any event, the position was posted internally on July 30, 1982. Two applicants applied for the vacant position, namely Mrs. Giovinazzo and the Grievor. A Selection Board interviewed each applicant briefly.on August 10 during which time the Grievor wa~sgranted a five minute interview. The foljqwing day the Griever - 3 - was advised~by, letter that she had been unsuccessful in the competition and "that a candidate more suitably qualified has been selected" (Exhibit 6). The relevant provisions of the job posting are as follows (Exhibit 4): "Job Summary This position is one of co-ordinating Home' Visits with Tenants Placemen't activities within the Housing Authority portfolio. One must implement new guide- lines, policies and procedures as established by O.H.C. and/or the local Housing Authority Board for the purpose of,selecting, placing and leaving of Tenants in rental housing units. Reporting to the H,ousing .Manager activities of the Tenant Placement/Home Visiting Department. Must be capable of working with minimum supervision. vpical Duties Performed (but not limited to 1. Interviewing applicants and assessin su determine the type of accommodation requ 3 red andconducting Home Visits: itability to , arranging the following) 2. Keeping accurate records of all tenant applications received, approved or rejected and establishing priority of applications and visits. 3. Handling telephone or written enquiries from interested persons or enquiries from elected officials and municipal agencies investigating the current status of tenant appli- cations. 4. Interpreting the guidelines and directives of the housing Authority pertaining to the processing of new applicants, transfer requests from e.xisting Tenants, the allocation of vacant units and leasing oft the units. 5. Evaluation pf applications and transfers and recommending action to the Local Application and Transfer Review Co~mmittee as well as carrying out the directives of the Committee. 6. Reporting potential operating problems within I the Tenant Placement/Home Visitor s Department to the Housing Manager. 7.' Performing su~ch other duties as the Housing Manager may direct from time to time. gualifications; - Demonstratable experience ,in interviewing - Above average tact, diplomacy and Integrity for interacting with people at all levels. - Grade 12, a unjversity education in social sciences would be preferable. - French would be an asset. - Ability to communicate effectively both orally and ins writing is a requirement. - Possession of a.valid driver's licence and use of an, automobile may be required.'! The posting was accompanied by a most unusual memor- andum dated July 30, 1982 to all staff which read: The above position is being made avajlable as a secondment. to all qualified staff members of Central Niagara Housing Authority. This secondment will be for'a period of approximately 4 months, at which time the performance of the successful can- didate will be reviewed. Anyone who feels they qualify, under the attached; job description, kindly complete a personal resume outlining yourexperiences and qualifications to the Housing Manager at 266 Division Street, Welland no later than Friday, August 6, 1982.!' In a letter to the Grievor dated October 12, 1982, which was a Step 3 resporse (Exhibit 9), the Ministry quite properly admitted that the internal posting of a "secondment" was outside the parameters of the ColTective Agreement and therefore inappropriate. Of the two applicants, the Grievor has the greater seniority. Mrs. Tenszen'.s seniority dates back to August 21, 197.1? while that of Mrs. Giovinazzo dates back to August 28, 1972. The issue in this~ grievance is whether the junior employee should have been offered the position. The employment history wjth the Ministry of each applicant varies in several respects; The .Grievor worked for her husband commencing i n May 1968 pn a part-time basis during her husband's tenure as Assistant Manager and then Manager of the WelTand office: Fol lowing her husband's death in 1971, the Grievor was appointed acting Manager of the office (which was ih her home) from July 1971 to December 31, 1971. The Grievor was offered the position of yanager but declined to accept that position for personal reasons. A new Manager was appoin.ted effective January 1, 1972 at which time the Grievor performed as a Bookkeeper. The Grievor assumed much of the respons,ibility for the training of the new Manager,and also, played a role in the'trajning of Mrs. Giovinazzo when she commenced her duties with the Welland officein June of 1972. Mr. Kalmuk became Manager of the Welland office in 1973; however, the Grievor was not involved in the training of Mr. Kalmuk. The Grievor presently functions as a Bookkeeper/Accounts Clerk ly w 5 at dealing primar i and with clien t ith tenant rent calculations and collections, the office. T 6 - ljrs.Giovinazzo is presently a Clerk Typist. She commenced employment with the Ministry on a temporary basis on June 30, 1972 and became a member of the classified staff on August 28. 1972, Her first responsibilities were that of a Tenant Placement Dffic,er; however,she is now primarily involved in cl'erical duties including typing, leases, filing, and assisting applicants generally. The evidence is clear that Mrs.Giovinazzq was well qualified for the position in question. Both the Grigvor and Mrs. Giovinazzo appear to have the cr~edentials for the position, Mr. kalmuk testified that Mrs. Giovinazzo was offered the position primarily because of her superior experience in conducting home visits and tenant placements. In addition, he testified that there was no documenta- tion to,support the Grievor's claim that she had conducted any home visits. The Board accepts the Grievpr's evidence that she did conduct home visits and tenant placements between July and December of 1971 ~when she was acting Manager of the Welland office. During that period she did acquire some experience in home visits. However, the evidence is undisputed that Mrs. Giovinazzo had extensive experience in home visits and tenant placements in 1972, 1973, 1974 and 1975. We are of the opinion that the Grieyor had the requisite interviewing experience for the position, although admittedl~y her past responsibilities have not required the depth of subjectivity in interview procedures practised by Mrs. Giovinazzo? However, the Grievor, the mother, of four children, has acquired a commendable record volunteer service which has inevitably invol with people of all ages. of community ved interaction The Board is of the view that both Mrs. Giovinazzo and the Grievor possess the requisite tact necessary to fulfill that qualification. The Grievor has never been corrected by management,for alleged abruptness. Both women possess the necessary educational background; however, neither is bilingual. In addition, both are well s P oken and there is no evidence o.f any deficiency in written work. Both women possess valid driver's licences. e' that gives rise to this, grievance is Article reads: The Artic 1' Article 6.08. That "6.08 Seniority as referred to .shall mean length of cant the Employer and shall be eration in determining pr for promotion, transfers, in this agreement inuous service with the primary consid- eference or priority demotion, lay-off, permanent reduction of the work force, and recall. In considering candidates for promo- tion or transfer the Employer may consider qualifications and ability. Where the qualifications and ability of two or more candidates are relatively equal, seniority shall be the determining factor." - 8 - The issue to be determined is the application of , Article 6.08 tq the factual circumstances of this case. The Union argued that seniority is the primary factor as a mandatory requirement in the applfcation of Article 6.08 and that ref,erences made tp qualifications and abiT,ity are merely directory in nature. On beha~lf of the Grievor Mr. Edwards alleged that the posting by way of a "secondment" is in violation of Article 8 (Vacancies) and accordingly the posting was void ab initio. In addition there were allegations of discrimination against the Grievor contrary to Article 3.1 of the Collective Agreement. Mr. Tarasuk, on behalf of the Ministry, argued that although seniority is a factor it is not the only factor to be considered; that the Article does contemplate a competition; and that the final sentence of the Article provides that seniority is the determining factor only where qualjfications and ability are deemed relatively equal. Mr. Tarasuk argued that the Board in its deliberations must confine itself to the relief sought in the grievance form. Article 9.05 of the Collective Agreement does prevent the Board from a consideration of issues not raised in the grievance. Article 9.05 reads as follows: - 9 - "9.05 The Union in all steps shall be confined to the grievance and redress sought as set forth in the written grievance filed as provided for in the previous steps." Accordingly, any consideration of issues raised by the Union at. the Hearing that were not'specifled in the grievance form are inappropriate considerations. Article 6.08 states clearly that seniority shall be "the primary consideration".in the determination of a number of situations including promotion. The Article also states tha t the employer may consider the additional factors of qualifications and .ability. In the instant grievance, the employer has properly taken intq account those additional factors. Nevertheless, the seniori,ty factor described as "the primary consideration" makes provisions that seniority remains a strong consideration that must be taken into account once the ffnding is made that a candidate has the requisite qualifications and ability. The Article refers to seniority a second time in its concl,uding sentence in the fact that seniority shall be deemed to be the there is relative equality between two or governing factor where more. candidates in qua 1 ificatfons and ability. I Giovinazzo placements n the instant grievance, it may be said that Mrs. has greater experience in home visits and tenant than the Grievor, and a more varied bpckgrou,nd of interview experience. - la - However, the Griever's greater seniority is a factor which tends to balance the effect of Mrs. Gioyinazzo's "lead" as stated above. 'On the evidence, we find that Mrs. ,Giovinazzo and the Grievor.are.relptively equal based on all the factors outlined in Article 6.08 of the Collective Agree- ment. We are of the opin i on that the Selection Board failed to give adequate recognit ,i on to the Grievor's accumulation of seniority in awarding the vacancy to Mrs. Giovinazzo. In the result, this Grievance is allowed. It is this Board's award that the G~rievor shall~ be promoted to the position of Tenant Placement Officer - Home Visitor with the Niagara Central Housing Authority in Welland, and that she shall be compensated for all lost earnings retroactive to August 23,~1982. We shall reta in jurisdiction in the event of difficul~ties between the Part ies on the appropriate quantum of compensatipn. DATED at Brantford, Ontario, this 9th day of June, A.D., “I dissent” (Diesent to follow) H. 'Roberts Member;