GSB # 1655/96
OPSEU # 96D998
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Strunc)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Environment and Energy)
Employer
BEFORE Daniel A. Harris Vice Chair
FOR THE Micheal Klug
GRIEVOR Counsel Tolpuddle Labour Cooperative
FOR THE Lucy Siraco
EMPLOYER Counsel Legal Services Branch Management Board Secretariat
HEARING July 9, 1999 September 24, 30, 1999 February 7, 11, 2000 March 24, 2000
THE PROCEEDINGS:
The ministry of Environment and Energy declared the grievor, Vaclav Strunc, surplus on May 22, 1996. He was offered the position of senior environmental officer (EO4) in the Spills Action Centre, the office which coordinates the province’s response to toxic spills into the environment. He declined that position on the basis that he was not qualified to do the job, having spent the previous twenty-five years installing, calibrating and adjusting field instruments which monitor ambient air quality. He was not offered any other position. The union takes the position that the grievor was not minimally qualified to bump into the position. The employer says that he was.
THE FACTS:
The grievor began working as a field instrument technician in August 1971. He occupied that position through various ministerial reorganizations until January 12, 1998 when he retired, being the earliest possible date he was eligible to retire. As set out above, he received a notice dated May 22, 1996, which advised him that his position was being declared surplus. He completed a “Displacement Information Record” and forwarded it to the Director, Human Resources Branch of the ministry of Environment and Energy under cover of May 23, 1996. That covering letter reads as follows:
MaryEtta Cheney
Director of Human Resources Branch
5th Floor 40 St. Clair Ave. West
Toronto Ont. M4V 1M2
May 23, 1996
RE: Vaclav Strunc, Environmental Officer 4 , SIN 443-148-267
MOEE Central Region
With regard of displacement possibility, please be advised that my past experience includes work of Environmental Officer in Abatement Section Central Region (Toronto West) for five years as Emergency Response Person (1986-1991); I have absolved all related courses and training.
Also note that there is a precedent in two cases where two Air Technicians (EO 4) recently transferred from Tech. Support section (Air Monitoring) to Toronto District (Abatement) Section and York/Durham District Office. (Nelson Ducusin and Daniel Aqino)
Regards,
Vaclav Strunc
cc. Dave Crump, Director of Central Region MOEE
There are also several positions of Air Monitoring Technician as well as Telemetry and Meteorology Technician (EO4) at the Air Resources Branch (125 Resources Rd. Etobicoke) which are within the 40 km limit.
Thanks, V. Strunc
In his letter to the Director, Human Resources Branch, he relied on his five years of part-time experience as an Emergency Response Person (ERP). That position is now called Environmental Response Person. It is useful at this juncture to briefly review those duties in the context of the bumping opportunity provided to the grievor.
The ERP is the provincial government employee who responds to a spill into the environment by attending at the scene. At the time the grievor exercised the duties of the ERP, the program was reasonably new. Employees of the ministry volunteered to be on call in the event a spill occurred outside of regular working hours. During regular working hours, regularly scheduled abatement officers performed such duties. The on-call employees would be contacted and advised of the location of the spill by the environmental officer in charge of the Spills Action Centre (hereafter referred to as SAC). That is the position offered to the grievor after he was declared surplus.
The grievor described his previous work as an air quality technician. He said it was a simple job that required little independent decision making. His was essentially a field position, which involved the routine installation and maintenance of air quality measurement instruments. He maintained the instruments at between six and eight fixed locations and might give simple directions to contractors responsible for snow removal and the like at fixed locations. The instruments transmitted data to a central location. In the event of faulty data being transmitted, he would follow up to flag the data as suspect and ensure that the field instruments were calibrated with the main computer. He would also place measuring devices at temporary locations of his choosing. His contact with the public was limited to satisfying the curiosity of onlookers. He was not required to deal with the news media or with emergency situations. The grievor’s only past exposure to emergency situations was as an on-call Emergency Response Person from approximately 1985 to 1991.
The grievor described his involvement as an ERP as having been part-time after his regular shift as an Air Technician. He said that he would be called by the Senior Environmental officer at SAC and told to go to a specific location to investigate a complaint of a spill or potential spill. Once there he would contact the SAC and receive detailed instructions as to what was to be done, including gathering of samples, witness names and the like. The grievor said that all instructions came from SAC; he made no independent decisions. However, he was required to investigate the complaint and was asked to call the people who complained in order to let them know that the situation was under control. He was called to such a scene once or twice per week.
The grievor said that when the programme started he received a one-week training course to prepare him for his ERP duties. He received a certificate confirming he successfully completed the “Spills and Emergency Response Seminar” from June 16-20, 1989. Although that training was not very deep, it involved all types of spills. He also said that it was more or less mandatory for all Environmental Officers to be involved. The grievor also successfully attended an “Environmental Law Enforcement Course” from May 8-12, 1989.
After performing the ERP function for approximately five years, the grievor was told that his classification, technical support, would no longer be eligible to participate. As the grievor understood it, the function was to be fulfilled by regular Abatement Officers, since the wage premiums for the ERP increased, and a larger pool of employees became interested. The grievor allowed that his ERP experience would have been a small asset in performing the EO4 position he was offered in the SAC. However, the grievor testified that from the moment he was offered the SAC job he had misgivings as to his competence to fill it.
After being offered the SAC position the grievor went to the SAC and met with Jim Renhan, the SAC supervisor. Mr. Zikovitz, the Head of the SAC was not available to meet with him. Also present was a co-worker, Rudy De Guzman, another surplused field instrument technician who had been offered an EO4 position in the SAC. Mr. Renahan described the position to them. They asked if they would get training before starting; they wanted a teaching period of preparatory courses. Mr. Renahan told them they would have to go on duty right away. The grievor said that they were told there would not be any courses offered “at least, not immediately.” The grievor was concerned that he would be required to supervise more knowledgeable EO3 employees in the office. He was also concerned that he would be scheduled to work alone on the night shift. However, the grievor said that they did not discuss the shift schedule. They only discussed whether they would get training. Mr. Renahan’s response was that they would have to start right away.
Mr. Renahan also testified about his meeting with the grievor and Mr. De Guzman. He said he gave them a brief tour and explained the shift schedule and the materials used by the EO4 on-the-job. As to scheduling, Mr. Renahan said that he told them they would not start immediately on the midnight shift and they would have access to him as a resource. He said it is a standard routine to wean the EO’s from relying on supervision. He believed that he had explained that the scheduling of the first night shift would be delayed as long as possible. He also said that he had told them that there would be no training prior to them starting. They had to have the minimum qualifications but would be oriented to the job. His recollection of the meeting was that the grievor did not ask many questions. The grievor did express his dissatisfaction and said that it was not an appropriate position. He also recalled that the grievor felt there was an exact match elsewhere and did not know why he was matched with the SAC.
Mr. Renahan also testified about the training usually provided for the position. He said that it is essentially on-the-job training. New employees shadow an EO while they work in order to be exposed to the routine tasks of receiving telephone calls, entering occurrence reports, faxing occurrence reports to the district offices concerned and maintaining the office equipment. He said such orientation lasts approximately one week and it would generally be five or six weeks before a senior EO would be required to work alone on midnights. In recent years that job shadowing function has been provided by the same E.O., who has developed a form of training check-list. The only formal training courses required of new hires would be the Environmental Responders Course and the Environmental Law Course.
Bob Shaw also testified. He is the Regional Director of the Central Region. As part of the downsizing of the ministry, he reviewed all positions in the ministry from a functional perspective. In all, the ministry lost one-third of its employees, being approximately 130 to 140 employees in each of May 1996 and January 1997. Subsequent to the surplus notices being issued, he determined the positions that surplus employees would be qualified for across the division. He reviewed the grievor’s situation to determine what position he was qualified to displace to within the operations division. He did not do the actual matching. Since the grievor had been determined to be qualified to displace to the SAC, he was matched with the most junior EO4, Scott Thompson. In his evidence, Mr. Shaw explained his understanding of the duties of both the grievor’s original position and that in the SAC. In his view, the grievor was qualified for the SAC EO4 position based on the following factors: the duties of the two positions, the grievor’s length of time in the ministry, his ERP experience and the very prescriptive nature of the EO4 position in the SAC. As a long-term ministry employee he had valuable knowledge of the basic structure of the ministry. The grievor’s experience as an ERP gave him an important visual context for the EO4 job. Mr. Shaw said that the EO4 role at the SAC was to decide if ministry personnel should attend the scene of a spill. That decision was guided by clear procedures. He said the SAC job was not a simple job, but it was straightforward.
THE SUBMISSIONS OF THE PARTIES
The union submitted that the question for the Board to determine is whether the grievor was qualified to perform the work of a senior environmental officer in the Spills Action Centre in May 1996. The union said that not only was the grievor unqualified, but it would have been irresponsible to put him in that position at that time. Further, the union said that the grievor would have required training in order to perform the work.
The union said that the grievor’s experience as an air quality technician did not provide him with any of the skills required of the SAC position. He was trained to calibrate, repair and install ambient air quality measurement instruments. Although he possessed significant and sophisticated skills, they were not the skills required by the SAC position. Further, he was not required to make independent decisions, in contrast with the SAC position. The union reviewed the SAC position requirements and urged upon the Board the conclusion that it required very particular skills with immense responsibility. The senior environmental officer position was described as a key player in the Province’s response to spills into the environment. The union reviewed the position specification for the senior EO position and said that it clearly required a level of responsibility far in excess of the grievor’s experience. The union also reviewed the documents used by the senior EO and other documents explaining the role of the SAC. The union submitted that the complexity of the position was beyond the abilities of the grievor.
The union also reviewed the grievor's experience as an emergency response person. The union said that the position at the time relied heavily on the direction and expertise of the senior EO in the SAC. That is, the grievor’s experience was as the eyes and ears of the senior EO. He merely followed specific directions as to what was to be done at the site of the spill. Accordingly, he learned very little as an ERP. The union also said that the evidence was consistent with the senior EO continuing to contribute expertise to the field ERP. The grievor would have had little to contribute.
The union submitted that the grievor would be required to fulfill the full duties of the senior EO from the outset. On that basis he would have quickly been scheduled to work the night shift alone, leaving an unskilled individual in charge to respond any toxic spills up to and including nuclear spills or releases. The union said that the grievor had the right under the collective agreement to be offered a job he was capable of doing. He was denied that right when the employer offered him the SAC job in the hope that he would decline it. The union relied on OPSEU (Loebel) and ministry of Municipal Affairs and Housing GSB#331/82, (unreported, 83-02-15, Verity)
The employer characterized the issue as whether the union had met the onus of demonstrating that the grievor was not minimally qualified to perform the duties of the senior environmental officer in the Spills Action Centre. The employer said that it had the right to decide on the qualifications required for a job. The job specification was said to set out the ideally qualified candidate rather than the minimal qualifications to do the work. It was submitted that the union’s view of the minimal qualifications required was so high that no one would possess them.
The employer said that the union had not met its burden. There was no evidence that the grievor had not performed his previous EO4 job well. The evidence of the employer was said to establish that the SAC job was straight-forward and prescriptive. It involved obtaining information from people calling in to report spills and using the various SAC resources to determine whether to send out an ERP. The grievor’s previous job required sufficient decision-making so as to qualify him for the SAC EO4 job. It was submitted that the grievor’s apprehensions about the complexity of the SAC job were unfounded. His twenty-five years experience with the ministry also suited him for the SAC position. The Spills Action Centre is responsible for gathering information to ensure that ultimately there is legislative compliance. It is not the primary emergency response, that role belongs to the municipality. The grievor was also said to have misapprehended the relative roles of the SAC EO4 and the ERP. The employer submitted that the ERP was not directed by the SAC EO4, rather, the SAC EO4 initiated the call-out and the ERP ensured an adequate field response. The SAC EO4’s role was to record the information obtained, in accordance with established procedures. The ERP role had changed since the grievor performed it.
As to his other qualifications, the employer said the grievor had database management skills, significant technical experience and training, problem solving skills, basic knowledge of chemistry, computer hardware and software competency as well as ERP experience and training.
The employer argued that the grievor was capable of performing the minimum requirements of the position without training. It argued that the grievor was entitled to a familiarization period, which would have been sufficient to orient him to the job, especially given that it was not expected that anyone would memorize the various procedures. They were only expected to be able to look up the appropriate procedure as needed.
The employer relied on the following authorities Newfoundland (Treasury Board) and N.A.P.E., Re (1992), 1992 CanLII 14509 (NL LA), 27 L.A.C. (4th) 137 (Browne); Husby Forest Products Lts., and I.W.A., Loc. 1-71, Re (1989), 1989 CanLII 9344 (BC LA), 5 L.A.C. (4th) 118 (Bird); PEGO (Donyina) and ministry of Environment and Energy, GSB# 2897/96, (unreported, 98-06-09, Briggs); OPSEU (Palangeo) and ministry of Transportation and Communication, GSB# 227/83, (unreported, 84-03-07, Verity)
REASONS FOR DECISION:
In this matter the union says that the employer violated article 20.4.1. It says that the grievor was not qualified to perform the work of the least senior employee in his classification, being that of Mr. Scott Thompson. Accordingly the employer was required to carry on the search for an appropriate position under article 20.4.1(b). Article 20.4.1 is as follows:
20.4.1 An employee who has completed his or her probationary period, who has received notice of lay-off pursuant to Article 20.2 (Notice and Pay in Lieu), and who has not been assigned in accordance with the criteria of Article 20.5 (Redeployment) to another position shall have the right to displace an employee who shall be identified by the Employer in the following manner:
(a) The Employer will identify the employee with the least seniority in the same classification and the same ministry of the employee’s surplus position. If such employee has less seniority than the surplus employee, he or she shall be displaced by the surplus employee provided that:
(i) such employee’s headquarters is located within a forty (40) kilometre radius of the headquarters of the employee; and
(ii) the surplus employee is qualified to perform the work of the identified employee.
(b) If the surplus employee is not qualified to perform the work of the least senior employee identified under paragraph (a) above, the Employer will continue to identify, in reverse order of seniority, employees in the same classification and in
The issue for determination is whether the grievor was qualified to perform Mr. Thompson’s work, being the position of senior environmental officer in the Spills Action Centre. The qualifications required in order to displace a junior employee are not those of a fully qualified and experienced incumbent. It is well established that a displacing employee need only have minimum competence in the major components of the job. The foundation case in this area is Loebel (supra). Vice Chair Verity said the following at pages 21-22:
To determine if a surplus employee is qualified to perform the work pursuant to Article 24.2.3, the Board accepts Management’s argument of “present ability” to the extent of minimum competence in all components of the job requirements. To adopt any higher test of present ability would be to destroy the significance of Article 24.2.3. That Article has been mutually agreed upon by the Parties to benefit surplus employees by affording them certain preferential rights of appointment. Few, if any surplus employees would succeed in moving successfully from one ministry to another if the accepted test were more stringent than minimum competence in all of the major components of the job. Such an interpretation does not mean that a surplus employee must possess skill and knowledge in all activities associated with the position. However, it does mean skills and knowledge of the main components of the position. In the subject case, knowledge of the ministry’s objectives, policies and programs are all major components of the position, each of which is essential to a surplus employee to be deemed “qualified to perform the work”.
Having considered the evidence, including the extensive reviews of the job position specifications put forward in the course of the hearing, I conclude that the grievor did have minimum competence in the main components of the position.
The EO4 position in the SAC is not a simple one. However, I agree with Mr. Shaw that it is straightforward. The central tasks of the job are to document the facts of a reported spill into the environment and to determine whether it is necessary to dispatch an environmental response person to the site of the spill. The position also provides advice to those involved with the spill and notification of the spill to others who should be involved.
The grievor was of the view that he did not possess the requisite knowledge to perform the position. That is, his lack of knowledge meant that he could not make the decisions necessary to carry out the job.
The job is straightforward in that the protocols for dealing with various eventualities are well laid out in a number of documents upon which the EO4 is required to rely. The incumbent is not, and could not be, expected to know all of the contents of these documents. Certainly over time one would increasingly gain familiarity with their contents. However, the employer does not, nor could it, expect individuals in the job to have committed such voluminous materials to memory.
Various types of spills are anticipated in the document entitled “Spills Action Centre Operating Procedures”. Those procedures include reference to other written resources available in the SAC or by telephone to guide the EO4 through any required decision-making. The response expected is reasonably prescribed. It is not necessary to review this documentation in detail. It is sufficient to note that for a given situation, the EO4 has at her or his disposal instructions on how to proceed.
The grievor has 25 years of experience with the ministry. His previous job required careful monitoring of data, data entry, and follow-up to ensure that the data was reliable. As an ERP he took measurements and samples, contained spills, preserved evidence, was the on-site liaison person with municipal and other emergency response personnel, interviewed witnesses and, on at least on one occasion, was called upon to give evidence in court. He said that he attended on site as an ERP once or twice per week for approximately five years. The grievor said that while he was an ERP he took instruction from the EO4 in the SAC. The evidence discloses that at the time of his displacement opportunity only abatement officers attended at the site as an ERP and the relationship between the EO4 at the SAC and the ERP was one of collaboration. The grievor relied on the prescriptive nature his previous ERP experience to diminish his ability to discharge the duties of an EO4 in the SAC. That is, in his view, his ERP activities were so directed by the EO4 that he was not exercising any discretion at all. However, his covering letter to the Director, Human Resources Branch, relied on the same experience in order to support his suggestion that he be matched to an abatement position. He said in his evidence that he was hoping that his ERP experience would help him to get an abatement job. He understood that abatement officers worked with companies known to be polluting to bring them into compliance by, for example, checking on the technical aspects of scrubbers and so forth to make sure they were properly maintained. Nonetheless he now says that the ERP experience would be of only little assistance in the SAC.
There is some discrepancy between the formal position specification for the EO4 position in the SAC and the position as performed. Even taking the position specification at its most stringent, it is not determinative of the minimum qualifications needed to secure the position in a displacement situation. The grievor had the minimum requirements given the prescriptive nature of the expectations of him, the requirement that he use the written and verbal resources laid out in the procedure and other manuals, his twenty-five years of training and experience with the ministry in the environmental field, his general, albeit rudimentary, understanding of chemistry, his ERP formal training and five years of part-time experience, his extensive computer skills, including data management and, finally, the important fact that everyone who comes into an EO position in the SAC is thoroughly oriented to the job by a fellow employee. What makes this job straightforward is that it requires on-the-job orientation. It is not a position that requires training per se since one must be thoroughly oriented or familiarized on-the-job to the prescriptive nature of the tasks. Someone bumping into a position has the right to a familiarization period. The familiarization period here is thorough enough that a person with the grievor’s general environmental training and experience has the minimal qualifications necessary to displace the junior incumbent.
DECISION:
The offer to the grievor of an EO4 position in the Spills Action Centre was not an inappropriate match as alleged by the union. Accordingly, the grievance is dismissed.