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HomeMy WebLinkAbout1983-0393.Allison.84-01-18IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Harold C. Allison) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer R. J. Roberts Vice Chairman H. Weisbach Member D. B. Middleton Member C. G. Paliare Counsel Gowling & Henderson Barristers & Solicitors M. Milich Staff Relations Officer Staff Relations Division Civil Service Commission December 1, 1983 - 2- DECISION The issue in this arbitration involves the question whether the Employer breached the terms of Article 24.2.3 of the collective agreement, relating to. filling job vacancies with surplus employees who are "qualified" to perform the work, when it filled the position of Driver Examiner Supervisor, Oakville, with(a surplus employee from the Ministry of the Attorney General. For reasons which follow, we conclude that there was a breach of Article 24.2.3 in the circumstances of this case, and for this reason the grievance is allowed. In early 1983, the Employer announced a competition for the position of Driver Examiner Supervisor, Oakville (Driver Examiner Supervisor I). .This was not a management position; it was more in the nature of that of a "lead hand". Essentially the successful applicant was expected to become the supervising member of a three-person staff of Driver Examiners at the Downsview office of the Ministry of Transporation,and Communications. Besides undertaking certain supervisory duties such as tak:ng responsibility for equipment, security, monies and preparation of performance appraisals, the successful applicant was expected to work alongside the other Driver Examiners in conducting driver examination tests and performing driver license issuing functions. - 3 - Shortly hefore the closing date of the competition, which was March 31, 1983, the Employer cancelled the competition. By letter dated April 7, 1983, the District Personnel Officer, C.L. Malloy, notified the applicants, including the grievor, as follows: It is with regret that we must advise you that the Competition for 83-27, Driver Examination Supervisor, Oakville has been cancelled.- Since the posting of this competition, several surplus staff with the Ministry of the Attorney General have been identified as having sufficient qualifications to fill this position. We have now filled'the position with a surplus employee, Mr. Jim Newman. We recognize that this is disappointing for you who have applied for the position, however, we also must keep in mind that we are living in days of constraint and should we ever be declared surplus to the requirements of the Ministry, we would appreciate the same treatment. Your interest in the position and in advancing the Ministry is appreciated and we would hope that when a position becomes vacant in the future for which you are eligible and qualified, you will again apply. Yours truly, CLM/eb C.L. Malloy District Personnel Officer Apparently pursuant to theprovisions. ofArticle24.2.3 ofthe collective agreement the Employer had filled the opening in the position with a surplus employee from the Ministry of the Attorney General, Mr. Jim Newman. . . It seems that the Employer did not send Mr. Newman to the Downsview office until Nay 30, 1983. In the six week period preceding this date the Employer assigned Mr. Newman to its District Office in Stoney Creek to receive what must be described as training in the duties of a Driver Examiner, i.e., the duties of the two employees at Downsview who would be under his supervision and alongside' whom he was expected to work. One of the members of the panel which selected Mr. Newman, Mr. William Doherty, the District Manager, Drivers and Vehicle Section, Toronto East District, acknowledged that Mr. Newman was sent to Stoney Creek to be trained. Headded'that Mr. Newman held a Driver Instructor license, had knowledge of driver examination techniques,,and had extensive knowledge of the provisions of the Highway Traffic Act. Further, Mr. Doherty testified, Mr. Newman had - considerable supervisory ability and administrative skills. On cross-examination,Mr.Doherty stated, "We hired Mr. Newman for the supervisory job because we felt that he would become able to do the job in a very short time." . It seems to us that the forgoing facts indicate that when the Employer appointed Mr. Newman to the job they violated the requirements of Article 24.2.3 of the collective agreement. This Article provides as follows: - 5- 24i2.3 Where an employee has not been assigned in accordance with subsections 24.2.1 or 24.2.2, he shall be assigned on the basis of his seniority to a vacancy in another ministry within a forty (.40) kilometer radious of his headquarters provided he is qualified to perform the work and the salary maximum of the vacancy is not greater than three per- cent (3%) above nor twenty percent (20%) below the maximum salary of his classifica- tion, as follows: - a vacancy which is in the same class or position as the employee's class or position; - a vacancy in a class or position in which the employee has served during his current term of continuous service: or - another vacancy. Under this provision Mr. Newman must have been "qualified to perzorm the job" at the ~time of his appointment. It seems to us that he was not. To meet this requirement, Mr. Newman would have had to possess "the necessary skills and knowledge to - perform at a.minima~l level of competence all of the functions of the [position of Driver Examiner Supervisor]." Re Loebell and Ministry of Municipal Affairs and Housing (Aprillgk 1983),G.S.B. #331/82 (Verity). (Emphasis suF'plied.) While Mr.Newman mighthave possessed thenecessary skills to perform at a minimal. level of competence a.11 of the functions of this position he was woefu>ly 1,acking in the neces:;ary knowledge. - 6- The Employer acknowledgedthis when it provided him with a six week training program at a location other than the one in which he would be required to take up his supervisory duties. As it was, the evidence indicated, even this was inadequate. The two Driver Examiners who were supposedto be supervised by Mr..Newman wound up having to provide him with more training over a considerable period of time. This was hardly a solid foundation for cultivating the respect that a person in the position of a lead hand must command ~from his colleagues. The grievance is allowed. The job must be vacated and the competition that was cancelled when Mr. Newman was selected for the position must be reopened with respect to those applicants who entered the competition prior to the closing date of March 31, 1983. Of course, the Employer will be entitled to consider for the position those surplus employees who were identified as potentially capable of filling the position but were less senior than 1Mr . Newman. We understand there were about three of these employees. It would be inappropriate to consider any others. It seems to us that if theEmployer decidesto followprocedures they should bepursued simultaneouslyand without undue delay. I - 7 - DATED at London, Ontario this 18th day of January, 1984. , H. Weisbach, Member D. B. Middleton, Member