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HomeMy WebLinkAbout1984-1141.McCormick.86-02-18.IN THE MATTER OF AN ARBITRATION -Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before 2 .- THE GRIEVANCE SETTLEMENT'BOARD .~:. Between: OPSEU (Raymond McCormick) Grievor . -and:- . _~. . . a The Crown in Right of Ontario (Ministry of Correctional. Services)- :Employer --, - _.. __ w. L n-fore: R.J. Roberts Vice-Chairman R. Russell <Member obraico Member For the Grievor: II;and, Esq. . . : Gowling & Henderson Barristers & Solicitors For the Employer: D. Dalgleish, Esq. Regional Personnel-Administrator Ministry of Correctional Services (Eastern Region) . . . Hearing: January 7th, 1986 : '., . - , - .’ .‘.: ._.. . ! 2. -' DECISION This is a job posting grievance. The application of the grievor for the position of Recreation Officer 2 in the Rideau Correctional Centre of the Ministry was rejected on the ground that he did not posses,s the required academic standing. For.this reason, the grievor's application did not even proceed to the interview stage. The grievor grieved the apparent refusal of the Ministry to consider his equivalent qualifications. For reasons which follow, the grievance is allowed in part. On February 15, 1985, the Ministry issued an Opportunity Bulletin advertising an opening for a Recreation Officer 2 at the Rideau Correctional Centre. This job posting set forth as one of the qualifications for candidates the "successful completion of an approved two-year Diploma Course in Recreation recognized by the Ministry of Education, or a Degree in Recreation or Physical Education from a recognized university." The area of search set forth in the job posting specifically included the Brockville Psychiatric Hospital, where the grievor worked. At that time, the grievor was a Recreation Instructor 2 at this Hospital. He testified that when he saw the Opportunity Bulletin, it appeared to him that the job was similar to the one that he held. Although he did~not possess a diploma or degree as required by the posting, he believed that he had equivalent qualifications. On February 29, 1984, he submitted his application. 3. On March 5, 1984, Mr. D. W. German, the Deputy Superin- tendent of the Rideau Correctional Centre, sent to the grievor the following letter: M.t. Raymond McCohck, Bar JJ31, Rtedcott, L)~~oJL&J, KOE ITO. . Dem MR. McComick: Re: c6mpCtdiOn #cl-0904-64 - ReGtedon odiiC13’2, Rideau Cofutetiiona! Cent&e. Wane in aeceipl or; youh app&aZion 604 the above noted compe-ti.tion. This ib to advtie you, thet e6 you do not po44eu the. aeqtied academic qu~-!i~i&.Liono, ed o&Lined &the Uppotiunity &e-&in, you u.d.! not be gunted an interview. The quati6icdionb me: an appuved two-yePn DipComa Come in Recreation tecognized by -the Mintitiy 06 Education 04 a Degree in Revleetion oh Phy&cac Eduction~@m 4 &ecog&zed uniuexi.ty. Thunk you 60~~ you inte,teat in thio position. , Sincvtely, This letter flatly stated that because the grievor did not have the required diploma 'or degree, his application was being screened out at the preyinterview stage. There followed a series of letters between the grievor and Mr. Gorman as well as other management personnel in the Ministry.", ~ 4. The'essential position that was taken by Mr. Gorman, i.e., that the grievor lacked the necessary qualifications because he did not have a diploma or degree, was reiterated along the line. This was in spite of the fact that in a letter dated March 9, 1984, the grievor asserted that he had equivalent qualifications by virtue of "many years of service in the related fieid of Recreoiogy . . . (and) a special training programme course prescribed for Recreationists." Finally, on April 19, 1984, the grievor filed the grievance leading to the present proceeding. At the hearing, a number of documents relating to the skills, abilities and qualifications of the gricvor were placed in evidence. These included his application and resum;?, his present position specification, and several of the pieces of correspondence which were written in his exchange with the Ministry. Although counsel for the Union did not have any questions to ask the grievor in direct examination, the grievor took the stand and testified under cross-examination by the representative of the Ministry. In this cross-examination, the grievor gave additional evidence relating to his fitness for the job of Recreation Officer 2, although it must be added that this evidence was far from corn- prehensive in nature. . The only other person to testify was Mr. Gorman. Although he confirmed on cross-examination that the griever's application was screened out on the basis of lack of academic standing, he 1. 5. went on to comment upon other deficiences of the grievor that he perceived'from the documentary mater,ial which was in evidence. He stated that in addition to his lack of academic standing, the grievor did not meet the requirement of one year's experience in a correctional setting. He also suggested that from a review of an Employee Evaluation Form from the Brockville Psychiat,ric Hospital which was attached to the griever's resum\e, the grievor appeared to be deficient in some areas of job performance. In their submissions at the end of the hearing, both parties agreed'that this case was governed by the provisions of Article 4.3 of the Collective Agreement. Article 4.3 reads as follows: ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW 'POSITIONS . . . . . 4.3 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 continu- ous service 'shall be a consideration. This provision leaves to the discretion of management the matter of determining the "qualifications and ability to perform the required duties." -, It was the position of the Union that in making this determination, the Ministry failed.to act fairly, as it was required to.do, at least with respect to determining the "qualifications . ..to perform the required duties." The requisite fairness was , missing, it was submitted, because in prescribing the academic 6. qualifications that it did, with no provision for equivalance, the Ministry was prescribing a credential which was not demon- strably required by the job. This unfairly excluded the grievor and others like him from consideration. In its case, the Ministry did not attempt to show that in prescribing the academic qualification it was acting fairly, in the sense that there was a demonstrable relationship between the qualification and the job in question. In fact, no evidence was called upon this aspect of the case. Instead, the thrust of the case for the Ministry focused upon underlining the fact that this Board has repeatedly refused to require the various Ministries to interview all applicants in job competitions. It also was mentioned that it was not permissible for the Union to attempt to use Civil Service staffing standards, etc., which were in evidence, as if they were part of the Collective Agreement and, as such, gave rights to members of the bargaining unit. It was stressed that these were guides for management only. While we agree that documents meant solely for the guidance of management may be of limited utility in defining rights under provisions of the Collective Agreement, it nevertheless must be concluded that on this record, there was a violation of the pro- visions of Article 4.3 of the Collective Agreement. It was undisputed that under Article 4.3, the fairness doctrine required management to exercise fairly its discretion to determine the qualifications _,, , a :- 7. to perform the required duties.“ This Board has long been of the view that in order to satisfy this requirement, the qualifications. established by management must be reasonably related to the job in question. See Borecki and Ministry of NaturalResources (1982), G.S.B. #256/32 (Swinton), where the Board said, "of course, these qualifications must be reasonably related to the job in question".. Id. at p. 8. See also, Re Cook and Ministry of Correctional Services (1985), G;S.B. 39/84 (Delisle) , where the Board said once again, "in ranking the applicants...., did,supervision take into account all the qualifications reasonably related to the '. - job in question?" Id. at p. 6. t. , In the present-case, there was no evidence to indicate that the .academic qualifications laid down. by the Ministry were ( reasonably related to'the job of Recreation Officer 2. Whatever evidence there .was,went the other way. Accordingly, we. are con- strained to find that in establisiiinggthis as one ,of. the qualifications for the job, the Ministry violated Article 4.3 of the Collective: Agreement. To this extent/ the grievance must be allowed.. .It would appear, however, that in the circumstances of this case, a certain degree of creativity will be required with'respect to remqdy. As counsel for the Union candidly conceded,~the evidence fell far short of establishing that the grievor would have been the successful candidate for the job, or indeed, would be the successful candidate if the competition ’ L 8. were to be re-run. Still, the grievor unfairly was denied the opportunity to have his qualifications and ability evaluated and compared. It seems to the Board that the only way in which this unfairness can be remedied is to order that he be granted an inter- view at the earliest mutually convenient date. If, after this interview, it becomes evident that an entirely new competition wili be necessary to remedy the grievor's position, then that is ordered. This Board will remained seized of the matter pending its resolution. As a footnote to this order, it should be noted that this Board has given detailed consideration to the position taken by m. German with respect to the other qualification that the grievor allegedly lacked, i.e., "at least one year of satisfactory experience in a correctional setting." In light of Mr. Gorman's testimony regarding the breadth of experience which would satisfy this qualification and the griever's evidence regarding his exper- ience in dealing with patients at Brockville who were detained on Lieutenant Governor's Warrants, it is the conclusion of this Board that the grievor meets this qualification. * DATED at London, Ontario, this 18th day of February, 1986. 1986. . - R. Russell, Member