HomeMy WebLinkAbout1985-1055.Tsiang.87-11-26Between:
IN THE MATTER OF AN ARBITRATION c.
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
-THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Joy Tsiang)
Griever
and
Before:
For the Griever:
The Crown in Right of Ontario
(Ministry of Industry, Trade and Technology)
Employer
For the Employer:
Hearing:
B. Kirkwood Vice Chairman
F. Taylor Member
H. Roberts Member
J. Masher C0llW.el
Gowliig and Henderson
Bai-risters a&Solicitors
J. Inderwick
Manag~er, Staff Relations and Employee Services
Ministry of Industry, Trade and Technology
June 17, 1987
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DECISIOil
The arbiuatlon of this matter was heard on June 17,1987, in Totonto.
The grievor alleges that she should have been assigned to the position of Clerical
Stenographer 3 in the Immigrant Entrepreneur sector after she had been advised that her job had
been abolished and there was a vacancy in the Clerical Stenographer 3 position. She alleges that the
employer violated article 24.2.1 of the collective agreement when she was not assigned to the
vacancy when a vacancy was within 40 kilometers radius; the salary maximum was not greater than
3 peer cent nor below 20 per cent of her w and she was qualified to perform the job function.
The parties agreed that the only i&e &keen them was whether or not she was qualified
to perform the job function. lhe employer’s positiotrwas that she did not have the dictaphone
skills which wem required for the job at the time the job was given. The grlevor maintains that she
hadtherequiredskills.
The grieve had received grade 13 and a one year secretarial course in Hong Kong. She
came to Canada in 1976 and successfully completed forty hours of Intermediate 3 and Basic and
Advanced CurriculUm on the Micom word processing system in English. She became employed
with the Ministry of Education in September of 1976 as a typisr/word processing operator and
subsequently became a typist 3 with the Ministry of Industry, Trade and Technology.
On September 4.1985. she received notice that her position would be abolished effective
December 4,1985, which notice stated:
“This is to formally advise you that it has become necessary, due to the
forthcoming decentmlimtion of. our telex operations, to identify you as a surplus
employee, and to notify you that your position will be abolished on December 4,
1985. Should’you not have been successful in relocating within the Civil Service
by that date, it will be necessary to lay you off. However, with the assistance of
the Government’s relocation program, which will be explained to you by your
surplus co-ordinator, Anne Morga, I hope that you will have been appointed to
another position in the Ontario Public Service well before that day.
With good wishes for your future”.
Following the directions set out in the letter, the grievor met Anne Morga, the relocation
officer for the Ministryof the Civil Service Commission and Marg Bury, who is the deployment
officer in the Deployment Unit of Human Resources. Although at the hearing, the griever could not
’ recall the substance of her meeting; Ms. Bury recalled that she had met the grievor and the union
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representative Terry Moore and she had explained the substance of article 24 which dealt with
surplus employees and had urged her to take the typing and dictaphone tests. Ms. Bury also typed
a resume for the griever.
Ms. Bury telephoned the grievor on September 12, 1985 to advise her that she had
arranged for a typing test for her on September 13,1985. Ms. Tsiang did not attend the test as she
was angry that she had beetr declared surplus without anyone having spoken to her. Ms. Bury
urged her to take the test as there was no record of her ski& on file and as the department was
considering her for many jobs it would be better for her if the department had a better idea of her
skills. She suggested that she again contact her union representative. Ms. Tsiang was very
emotional on the telephone and told Ms. Bury that everyone was putting too much pressure on her
and that “they were trying to kill her and her death would be on Ms. Bury’s conscience.” The next
day the griever did not appear for the test
Ms. Tsiang did meet the union repmsentative ,who similarly urged her to take the typing and
dictaphone tests and the tests were rescheduled for October 3.1985. There was no evidence as to
when the meeting.with the upion representative took place nor when the ariangements were made
for the rescheduling of the tests. The griever took the ryping test on October 3,1985 and passed i$
but .&en asked to take the dictaphone test the following day as she felt that she was not well as she
was again under too much pressure. The following day she passed the dictaphone test
Shortly after the griever’s meeting with Anne Morga and Marg Bury on September 11,
1985 or September 12.1985 the griever saw a notice adverdsing the secretary’s position with the
classification of Clerical Stenographer 3. The job description is described as follows:
“Required to provide typing, word processing and general clerical duties. You
will: copy type and/or u-anscribe letters, memoranda and reports from dicta tapes;
maintain files; answer telephone enquiries; and operate a micom word processor”.
The qualifications required were as follows:
‘Typing, dictaphone and word processing to Civil Stice Commission standards;
god interTersonal and communication skills: ability to work effectively under
pressure; tact and good judgment”.
The gricvor spoke to the former secretary about the nature of the job and was told that the
job was to type handwritten drafts into a machine and to answer telephone calls. Therefore, the
griever made no reference to her dictaphone skills nor to her experience in Hong Kong when she
completed her application form.
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Jennifer Indenvick, the manager of Staff Relations at the h4in.i~ of Trade and Technology
ttxeived applications for this job until September 16.1985. She reviewed the applications until she
came to Ms. Tsiang’s. Realizing that Ms. Tsiang was a surplus employee she called Marg Bury to
find out what the correct procedure was for surplus employees and furdxrmore to ask whether the
grievor could take a dictaphone test as there was nothing on her application which indicated that she
was qualified in that area. Ms. Inderwick and Ms. Bury asked Anne Morga to arrange for the
dictaphone test. On September 17,1985, Anne Morga told Jennifer Inderwick that as the grievor
had vehemently refused to take the typing test it was probably~pointless to ask her to take a
dictaphone test Ms. Inderwick did not contact the grievor personally to canvass her qualifications
as she felt that as surplus employees are in a delicate position, she should only deal with the surplus
co-ordinator. Thqfore, as a result of her discussions with Ms. Bmy and her review of Ms.
Tsiang’s application, Ms. Inderwick found that Ms. Tsiang was not qualified and proceeded to
interview the other applicants. On September 17.1985 a form letter was sent to the grievor which
stated:
‘“I am pleased to acknowledge receipt of your application ,for the above-noted CXXIlpCtitiOll.
‘Your application will be reviewed against the qualifications established for die position and if you have nof heard from us by October 8.1985 you may assume
ihat you have not been selected for an intervieti.
Thank you for your expression of interest in this position and
in your fume endeavours”.
I wish you the best
The interviews were completed on October 1.1985. As the department urgently needed a
secretary, an offer was made to an applicant on October 2,1985, which was immediately accepted
and the new applicant started work’on October 7, 1985. On October ?, 1985 Ms. Inderwick
learned from Ms. Bury that the grievor had arranged to take the tests, but by this time the offer had
beenaccepted.
. . . .
After the griever saw that the vacancy was filled she filed her grievance. Third parties who
may be affected by this grievance wexe given notice of the hearing, but chose not to appe&
The union argued that under Section 24 “Job Security” the employer was obliged to find
alternative work for an employee who is declared surplus. In the union’s submission, Article
242.1 is a mamjatory article which~ @xx-rides any issue of seniority and o%-ides the posting and
tilling of vacancies as expressed in article 4 of the collective agreement Furthermore, the sole test
that waj put forward in the case of OPSEU (Dr. Peter Loebel) and The Crown in Right of
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Ontario (Ministry of Municipal Affairs and Housing) R.L. Verity, Q.C., File
No.331/82. April 19,1983 to determine whether or not the grievor was qualified to perform the
work, is that the surplus employee must demonstrate a skill and knowledge and have minimum
competence. The grievor was able to perform the skills tequired at the minimum level as she had
had typing and word processing skills and general clerical skills since 1976 and the Civil Senrice
Commission Standards’ test demonstrated that she had the mquisite skill for dicta and typing.
It was the union’s submission that it was incumbent upon the employer to investigate and
ascertain the qualitYcations of the employee and that it was unreasonable for the employer, upon
hearing that the employee had declined to take the test on an earlier occasion, to assume that the
grievor did not have the requirements for the position. It was the union’s submission that the
employer was at least obliged to interview the employee to ask if she had dictation skills and to
csnvass her qualiiIcations with her.
It was the employers submission that the employer did not breach article 24.2.1. The
employer’s position was that she was not quaIifIed at the time of the job posting as she did not
possess the requisite dictaphone skills until October 4, 1985 when the results of the tests were
available. The Ministry does not dispute the fact that the grlevor had the right to Rll the’
stenographer 3 position if she were qualified to perform the duties of the job at the time that the
decision was made to till the job. She did recognize that after the results were available that Ms.
Tsiang had the minimum standard required for the job and that had Ms. Tsiang indicated on her
application that she had dictaphone ability then she would have been givenan interview and most
certainly would have been given the job. However, the employer submitted that the grievor was
awanz of sr&le 24 and thereby had the onus to pmvide the information that she was qualified at the
relevant time. The griever had not provided more details other than that which was in her
application form and had not taken the tests at the ume the position was vacant Therefore, it was
not unreasonable for Ms. Inderwlck to assume that the grlevor did not meet the requirements for the
job when she refused to take the test and had no information before her that illustrated that she had
the quallticafions.
On August 23.1985, a vacancy arose and therefore the position was posted pursuant to
article $1 of the coIlective agreement which states as follows:
“4.1 When a vacancy occurs in the Classified Service for a bargaining unit position or a
new classit%d position is createcl in the bargaining uni& it shall be advertised for at.
least ten (IO) working days prior to the established closing date when advertised
within a ministry, or it shall be. advertised for at least fifteen (15) working days prior
m the established closing date when advertised service-wide. All applications will .:.
_’
4.2
4.3
4.4
4.5
z;towledg& Where ptacdcable, notice of vacancies shslI be posted on bulletin
‘Ihe notice of va&cy shall state, where applicable, the nature and tide of position,
~salary, qualifications required, the hours-of-work schedule as set out in Article 7
(Houn of Work), and the area in which the position exists.
In filling a vacancy, the Employer shah give primary consideration m qualifications
and ability to perform the required duties. Where qualifications and ability are
relatively equal, length of continuous service shall be a consideration.
An applicant who is invited to attend an interview within the civil service shall be
granted time off with no loss of pay and with no loss of credits m attend the
interview, provided that the time off does not unduly interfere with operating
req-ts.
Relocation expenses shall be paid in accordance with the provisions of the
Employe+s policy.”
However, on September 4, 1985, when then grievor received her notice of surplus status
her rights m another job were secured by article 24 - Job Security - the relevant portions of which
are as follows:
“24.1 Where a lay-off may occur by reason of shortage of work or funds or the abolition of a position or other materA change in organization, the
identilication of a surplus employee in an administrative district or uni&
institution or other such work area and the subsequent assignment,
displacement or lay-off shall be in accordance with seniority subject to ‘.: the conditions set out in this Article.
24.2.1 Where an employee is idend6cd as surplus he shall be assigned on the
basis of his seniority to a vacancy in his ministry within a forty (40)
kilomette radius of his headquarters provided he is qualified m perform
the work and the salary maximum of the vacancy is not greater than
three percent (3%) above nor twenv percent (20%) below the maximum
salary of his classification, 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 send during his current term of continuous service; or
another vacancy”.
In order that the Ministry can process and assign jobs m surplus employees they have set
up a.system whereby as soon as the liason officer in the DepIoyment Unit of Human Resources
receives the noticeof surplus the officer puts the employee’s name on a seniority list and the list is
matched with the current vacancies. The department’s task is to match each job vacancy with the
inost’senior eligible employee. Although the system did not ~work in this case as the computer never
matched this vacancy with the griever’s name, this defect was cured when the griever saw the job
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posting and made her application.
As the employer undex this collective agreement is obligated m assign the employee if the
employee is quaWed, the duty falling the employer assigning a surplus employee is greater than the
duty falling the employer who is selecting the candidate which the employer considers the b+for a
job when there is competition between the applicants. There & an obligation upon the employer to
proteci the employee who has lost the& job through no fault of t&r own and m be knowledgeable
about the employee’s qualifications and m make all reasonable efforts to ascertain the employee’s
qualifications. This duty on the employer was confirmed in OPSEU @. Hill and.D.
Campbell). and The Crown in Right of Ontario (Ministry of Labour)- Oct.12/84
(#492/83 and 493/83) RJ. Roberts. In that case the interviewers made little inquiry about the
griever and relied on their interviews with the grievers. Even though the grievers would have had
an opportunity m advise the &&&wers of their qualifications in their interviews, the Board held
that as the interviewers had made no reference m their personnel files not made any contact with ’
previous supervisors’ references, they were not prepared m canvass the prievor’s qualifications
properly*
In this case, h&g Bury of the Deployment Department, spdke to the grievor, received
input Cum which enabled Marg Bury to type her resume, reviewed her personnel fTile and urged her
to take the tests. Unlike the D. Hill and D. Campbell (supra) we do not know how well the
qualifications were canvassed as we do not ,have any information as to the nature of her meeting
with the grievous the griever was unable m remember the contents of the meeting and Ms. Bury
could only xcall that she had canvassed article 24 with the grievor.
By September 17, 1985, the griever had noOt taken the tests, but subsequently met her
union representative and agreed to take the tests on October 3. 1985. When the tests were
rescheduled the employer had taken a step to fur&r ascertain the griever’s qualifications and the
grievor then cannot be prejudiced by the fact that the test was m b taken after the job was filled.
Othdse it could lead m the absurd situation whereby an employa could set set up procedures to
detcrminc an ~&nployee’s qualifications which are beyond the control of the employee and are to the ‘~
employee’s prejudice. Therefa once the gdevor’s tests were rescheduled, the employer is not able
to dismiss her application Mti it is established that the grievor did not have the qualifications.
Similarly once the grievor asked if she could complete the dictaphone tests on the following day,
being October 4, 1985 and the employer had given its consent, the employer must wait for those
result3 m be pmcessed
The other matter thatconcerns the Board is that the skills which are being c&dexd were
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related m the type of skills the grievor might have had. Although she had not acted as a secretary
for the seven years in which she was with the Ministry the ability m transcribe material ti-om a
dicming wit is sufficiently related m the job that it is ressonable to expect that she may have these
skills. In fact although there was no mention of these skills on the application form, Ms.
Inderwick inqubed as m whether the griever had the skills and she suggested that the grievor take
the test. When Ms. Bury indicated m Ms Indenvick that it was unlikely that the grievor would take
the test she prejudiced the gtievor as Ms. Inderwick no longer considered the grievor’s application.
Once Ms. htderwick asked Ms. Bury m arrange for the dictaphone tests then it was incumbent upon
Ms. Bury m assure that the gtievor was asked and the response provided to Ms. Inderwick. If the
g&or kuowing that the dictating skills were required and that her personnel record did not show
that she has the skills and knowing that she had not used dictaphone skills in any of her past jobs
with the Minisny then she would be at pesil if she then refused m take the test, as the employer
would then have done all that is reasonably possible m ascertain the qualifications. If on the other
hand she agrees m take the test, the obligation is on the Deployment Cenue m advise the interviewer
.of the test and the interviewer will then have m wait until the results are available as stated above.
Therefore in this case had Ms. Inderwick known of the tests being done and had waited for the
results she would have learned that the gtievor did have the minimum standard of skiUs necessary
for the job.
The griever was also prejudiced by the letter dated September 17,1985 which she received
from MS. Indenvick. Although Ms. Jnderwick did not treat the grievor as an employee in a
competition situation but as a surplus empfoyee, the griever did not know this. This letter
suggested that the grievor was being assessed in comparison to other applicants. Even if the letter
should have alerted the grievor m the possibility that she was not being considered as a surplus
employee, it would be require the griever m have a sophistication and experience m understand the
distinction between the two situations, and although article 24 had been explained to her, we do not
believe that she was in the state of mind m clearly grasp the distinction. Furthermore as the letter
indicated that if the gtievor had not heard fkom the Ministry by Ocmber 8.1985 the griever would
not be interviewed, there was nothing m alert the grievor that she is prejudicing herself by not
taking the tests undl the third and fourth of October.
lhemfore in summary the Board finds that the employer did not make all reasonable effotts
to ~ascertain the qualiications of the grievor when there was a vacancy. At page 21. of the Dr.
Peter Loebel case (supra) the Board accepted the argument that the grievor has to have the
“present ability” m perform all of the major components of the job at a minimum level of
competence. This grievor had those minimum skills as was evidenced by the tests and therefore by
the application of article 24 the griever should properly have been assigned the job. There is a -
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measurement of blame that also falls upon the griever, for although she may have teen angry at the
situation and perhaps insulted that she should have m take tests when she had beeti working in the
Minisuy for seven years, she should also have made her best efforts m put her qualifications
forward However the breakdown in communication between Ms. Jndenvick, Ms. Bury and Anne
Morga co nceming the assignment outweighs the grievork actions.
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Therefore the grievor is awarded the job of clerical stenographer 3 in the Immigrant
Enazpreneur section effective as of the date of this grievance, with no loss of serdori~, wages or
benefits. The grievor was placed in another position and therefore all monies and benefits which
she received should be taken ium account. The Board will remain seized in the event there is any
difficulty in the implementation of this award.
DatedatToronfD,this 26ti+d& of NW-en&& 1987.
ii. ~~ZIIU&OOD VICE-C~MRPERS~N
H.ROBERuMPLOYER MEMBER
Addendum
Since in retrospect it would seem ‘that the griever did possess the
minimal qualifications required for the position of Clerical Stenographer 3,
and, since the Ministry has acknowledged that if this information had been
available to it before the close of the competition Ms. Tsiang, as a
designated surplus employee would have been awarded the position, I-have
no option but to accept and concur in the award as set out.
However, I believe it should be emphasized for the record that had
the griever properly listed her dictaphone qualifications on her application
for the position, and had she been less negative in her response to
Ministry’efforts to help her establish her qualifications before the
competition deadline, this whole matter could have been resolved without
the necessity of a grievance and subsequent arbitration.
The Ministry conclusion to consider Ms. Tsiang as “not qualified”
when reviewing applications for the position was a reasonable one, in
view of the $nformation it hah on hand or could elicit at that time.
H. Roberts