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HomeMy WebLinkAbout1982-0472.Tenszen.83-08-08MEMORANDUN Re: 472/82 CUPE (MS :Elsie Tenszen) and Crown/Ontario (Ministry of Municipal Affairs and Housing) Please attach the attached copy of Mr. Roberts' dissent to your copy of 472/82 Tenszen. ch Toronto, Ontario August 8, 1983 Attach. 1 . . . -5 CUPE (Elsie Tenszen) and Ministry of Municipal Affairs and Housing - File #472/82 DISSENT I have read the award of the Board relative to the above grievance, and I regret that I cannot agree with the decision reached. The resolution of this grievance, in my opinion, must arise from the interpretation and application of Article 6.88 of the currect Collective Agreement, which is reported in r full at the foot of page 7 of the Award. There are two distinct elements to this Article 6.08. The first, beginning from the start of the article and ending with the words "and recall" (i.e. the first full sentence of the article), sets out that--"seniority shall be the primary consideration in determining preference or priority for an employee for promotion, transfers, demotion, lay-off, permanent reduction of the work force, and recall." The second element of Article 6.08, outlined in the re- maining two sentences of the article, modifies the first element, noted above, by providing for the consideration by the Employer of "qualifications and ability" between em- ployees who are candidates for"promotion or transfer." Seniority shall be the determining factor in selecting an employee for "promotion or transfer"--"where the qualifi- cations and ability of two or more candidates are relatively equal." My interpretation of this section of the article leads me to read that seniority.shall be the determining factor only where the qualifications and ability of two or more -2- candidates are relatively equal. The onus is on the Grievor to convince the Board that her qualifications and ability are relatively equal to those of the Incumbent. Requirements of the position in dispute--"Tenant Place- ment Officer-Home Visitor" --which the Employer regards as key requirements and which were those most extensively dis- cussed before the Board are, home visits, tenant placements and interview experience. Evidence before the Board as to the relative capabilities of the Grievor and the Incumbent in these areas, is reflected accurately in the following statements from the Award: Page 6-(second paragraph)-"The Board accepts the Griever's evidence that she did conduct home visits and tenant place- ments 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 (the Incumbent) had extensive experience in home visits and tenant placements in 1972, 1973, 1974 and 1975." Page 9 (final paragraph)-"In the instant grievance, it may be said that Mrs. Giovinazzo (the Incumbent) has greater experience in home visits and tenant placements than the Grievor, and a - more varied background of interview experience." (Underlining is mine.) Accordingly, from these two conclusions drawn from evidence, it must be apparent that the qualifications and ability of the -3- Incumbent in the key areas noted is measurably greater than the Grievor's. Applying this fact to the second section of Article 6.08 as set out above could only lead me to the conclusion that the Employer had given the proper consideration to both candidates for the position in dispute and, having de- termined that the qualifications and ability of Mrs. Giovinazzo were demonstrably superior to those of Mrs. Tenszen, .in the key areas of concern named, made a choice under Article 6.08 which was valid and indeed, under the circumstances, could not have been otherwise. I would, with respect, have dismissed the Grievance on these grounds. H. Roberts, Member /ch