Loading...
HomeMy WebLinkAbout1982-0478.Tofano.83-03-09IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEXENT BOARD Between: Before: For the Grievor: ??.A. Luczay Grievance Officer Ontario Public Service Employees Union For the Employer: R.B. Itenson Staff Relations Officer Ci.vil Service Commission OPSEU (Art Tofano) Grievor - And - The Crown in Right of Ontario (Ministry of Industry and Trade) I Employer A. Kruger P. Craven E. McLean Vice Chairman Member hlenber Hearing: January 17, lc'O3 '- 2 - This matter arises from a grievance by Mr. A. Tofano resulting from his failure to secure a .job transfer. The . successf,ul candidate for the job opening, Mr. B. Cahoon, was notified of the hearing. He appeared and was informed of his right to participate in the proceedings. The Board heard testimony from Mr. Tofano. He informed the Board of his ~qualifications for this position including his relevant formal education and his work experience. At the time of the events leading up to this hearing, Mr. Tofano was employed as a Technical Consultant I in the Hamilton office of the Ontario Development Corporation. The opening in question was for a technical Consultant I in the Peel office of the Ontario Development Corporation. Apart from his evidence concerning his own qualifica- ,tions, Mr. Tofano told the Board that his discussions with another applicant, Mr. Zuibrycki, led him to believe that different questions were put to different candidates by the selection board that interviewed applicants. He also believed that his qualifications including both his formal education and his experience, were superior to those of Mr. Cahoon. He had considerably longer seniority than Mr. Cahoon. The only other witness called by the Union was Mr. Cahoon. He was asked for his seniority date and told the Board he had joined the public service in January 1980. No further questions were put to this witness. The Employer elected not to call evidence and moved a motion of non-suit. The Employer directed the Board's attention to Article 4.3 of the collective agreement which states:- In filling a vacancy, the employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. It was the Employer's position that while the grievor may have shown that he was qualified to do the work, he had failed lis "qualification and ability to make a prima facia case that h are relatively equal" to those of grievance must fail. Mr. Cahoon. Accordingly the The Union responded by stating that the grievor had established his superior qualifications and had also shown irregularities in the process as demonstrated by the different questions put to different applicants. The motion of non-suit should, therefore, be rejected and the grievance should succeed. Re. Art i This Board accepts the interpretation of Article 4.3 in Doherty and the Ministry of Health (43/76 - Prof. Beatty). cle 4.3 is very clear in stating that before seniority is. even considered, the Employer must be of the view that qualifi- cations and ability are relatively equal". Even then, seniority does not determine the matter but onl,y enters as a .further consideration. The assessments of qualifications and ability are to be made by the Employer. - 4 - A Board of Arbitration can only overturn an employer's decision under a clause like Articles 4.3 if the decision was arbitrary, discriminatory or unreasonable in the light of the facts. The Board concludes that while the Union has shown that the grievor was qualified to fill the vacancy, it has failed to make a prima facia case that his qualifications were at least "relatively equal” to those of the successful applicant. The Union called Mr. Cahoon as a witness but did not ask him to testify concerning his qualifications. The only evidence the Board received on this matter was the opinion of the grievor based largely on his longer service as a Technical Consultant I. As for the evidence that the Board asked different candidates different questions, we are not satisfied that it casts sufficient doubt on. the procedures used by the Employer for us to overturn the Employer's decision. The Union did not bring direct testimony from the third candidate; Mr. Zuibrycki. In any case, some differences in the questions put to Mr. Tofano and Mr. Zuibrycki may have been justified by the differences in training and experience of these two men. Further, nothing was said about the questions put to the successful applicant. -5- The Board concludes that for all these, reasd-ns the griever has failed to make a prima facia case and the grievance - must fail. Accordingly this grievance is denied. DATED at Toronto this 9th day of March, 1983. A. Kruger - V: r "I dissent" (see attached) P. Craven - Member E. McLean - Member 6:2100 6:2310 6:1120 3:2640 478/W (Tof ano) DISSENT The wording of the grievance is significant. Tof ano grieved that “the selection board ..‘. erred in passing me over in selecting another person over me for the position . . . II He is not bound by an allegation that his qualifications and ability to perform the required duties are relatively equal to those of the successful ~candidate, so that seniority ought to have governed. While he clearly believes this to have been the case, it is not necessary to a determination in his favour. It will be suffi- cient if he has made out a prima facie case that the selection Ii board erred. It is the griever's uncontested evidence that he WaSI in- formed of the result of the competition on June 18 by a telephone call from Carter, a supervisor who sat on the selection board. Carter said that there were four applicants and that the final decision, a very difficult one, was between Cahoon and Tofano. Carter said that the position was given to Cahoon because Tofano was senior man in Hamilton and the selection board felt for this reason he should remain there. This was an irrelevant consideration. It was the responsi- bility of the selection board to determine'whether Tofano's and Cahoun's qualifications and abilities were relatively equal. If they were, then. seniority should have governed. It was no part of the selection board’s task to determine the posting on the I ba$is of Tofano's position as senior man in Hamilton and its desire to keep him there for that reason. According'to Tofano’s unchallenged account of his conversation with Carter, the irrele- vant consideration was the determining factor. In Doherty 43/76, Professor Beatty found (at page 17) that the employer's decision was reached on the basis of irrelevant considerations and faulty information. Nonetheless, he proceeded to uphold the selector's determination. His language is instruc- tive: " In the result however and even allowing for these de- f iciencies we are satisfied that there was relevant and material evidence before the employer, on which the respective abilities and qualifications of these two employees to perform the required duties of the job in issue could reasonably be distinguished." (18) The inference must be that in the present; of evidence of irrelevant considerations and/or faulty information, .the onus shifts to the employer to satisfy the board that it possessed relevant and material evidence in support of its decision. I It is unnecessary for the determination of the gri,evance for thi; board to decide whether or not Tofano’s qualifications and abilities were equivalent to.Cahonn's. The griever has made out a pFi.W facie case that irrelevant factors accounted for the selection board’s decision not to award him the transfer. The onus necessarily shifts to the employer either to rebut this case or, on the authority of Doherty, to show that notwithstanding the irrelevant consideration the selection board had before it rel e- vant and material evidence to support its decision. The effect of the employer's non-suit is that it has failed to satisfy this O"U5 i Id have determined this matter in For these reasons I wou the grievor'e favour. Paul Craven Member