2008-2908

UNION#2008-0580-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Nucci)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Michael Lynk

Vice-Chair

FOR THE UNION

Laura Johnson Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Susan Munn Ministry of Government Services Labour Practice Group Counsel

HEARING

September 12 and November 1, 2011.

Decision

1The parties have agreed that this decision is without prejudice and without precedential value, as per the mediation/arbitration provisions of Article 22.16 of the Collective Agreement.

2The issue of dispute involves the question of whether the terms of the September 2009 Memorandum of Settlement between the parties which settled a 2008 grievance filed on behalf of Ms. Nucci (#2008-2908/#2008-0580-0003) has been complied with by the Employer. Ms. Nucci and the Union have alleged that the Employer breached the terms of the Memorandum by failing to award her the vacant position of Group Leader in the Ministry of Transportation in the autumn of 2009. The Employer maintains that Ms. Nucci did not have the requisite qualifications for the position and, therefore, its decision to pass her over for the position was justified and not in breach of the Memorandum.

Evidence

3Ms. Nucci has been employed in a full-time capacity in the Ontario Public Service (OPS) since January 2002. She has always been represented by OPSEU. Beginning in December 2003, Ms. Nucci was employed as a Disclosure Officer with the Health Board Secretariat, under the Ministry of Health and Long-Term Care.

4Sometime in 2008, she was notified by the OPS that her position was being eliminated and that she would be surplussed. As a surplussed employee, she was entitled to certain redeployment provisions, as per Article 20 of the governing Collective Agreement.

5Ms. Nucci elected to trigger her redeployment rights under Article 20. On 1 December 2008, she filed her grievance, alleging that the Employer had breached various provisions in the Collective Agreement with respect to her search for another position in the OPS.

6In the late winter or early spring of 2009, the Employer notified Ms. Nucci that she could displace a less senior employee as a Case Co-ordinator at the Consent Capacity Board, also within the Ministry of Health and Long-Term Care. Ms. Nucci accepted this assignment, and began working at the Board in April or May 2009. She has continued to work at the Board since then (although she has been on maternity leave for part of this time).

7Ms. Nucci’s December 2008 grievance remained alive after her assignment to the Consent Capacity Board, as she was not satisfied with the assignment to the Consent Capacity Board and wished to find another position in the OPS. At the scheduled hearing before the Grievance Settlement Board on 18 September 2009, the parties reached a “full and final” settlement, “on a without precedent and without prejudice basis and without admission of liability on the part of any party...” It was crystallized in a Memorandum of Settlement signed that day. The relevant terms of the Memorandum of Settlement are Paragraphs 1, 10 and 13:

1. The Employer agrees to conduct a search of all OPSEU vacancies currently in RIMS as of the signing of this Settlement to determine whether:

(a) there is a vacant position for which the Grievor is qualified to perform the required duties;

(b) such vacant position is within a range of classifications whose maximum rate is 5% above and 15% below the maximum rate of the Grievor’s position’s classification, provided the position is in a classification no lower than an OAG10 level; and

(c) such a vacant position is within Toronto, Richmond Hill, Woodbridge or Vaughan, except the 151 Bloor location.

10. If the Grievor chooses to update her Employee portfolio she will provide such updated portfolio to the Employer’s identified contact within 1 week of the signing of the Settlement.

11. The parties agree that Vice Chair Lynk will remain seized with respect to any issues that arise regarding the implementation of this settlement.

8Following the signing of the Memorandum, Ms. Nucci provided a 34 page employee portfolio and a curriculum vita to the Employer to assist in its search for a vacant position as per the Memorandum.

9The Employer then conducted a job search in the autumn of 2009, and considered Ms. Nucci for a number of available positions for which she was a potential match. Among other positions, it considered her for a Group Leader position in the Regional Operations (Central Region), Road User Safety Division, in the Ministry of Transportation. At the time of the search, the Group Leader position was vacant, although it was being filled on an acting basis.

10The Redeployment Officer who conducted the search on behalf of the Employer determined that Ms. Nucci was not qualified for any of the positions that it reviewed, including the Group Leader position.

11The Group Leader position in the Ministry of Transportation is responsible for leading approximately eight regional scheduling clerks at a ministry call-centre located at the Ministry’s regional headquarters. The primary work of these scheduling clerks is to arrange appointment times for senior driver examinations in the region. (In this context, ‘senior’ refers to Ontario drivers over the age of 80.) Among other duties, the Group Leader is responsible for exercising leadership skills with respect to the scheduling clerks; answering technical, policy and legislative questions that arise in the office and among the particular clientele; exhibiting tact and effectiveness in the exercise of the work with the clientele, the staff, and senior Ministry officials; and demonstrating proficiency with the software systems and databases used in the office.

12The job description for the Group Leader position stated that 30% of the job required a “demonstrated knowledge of legislation (Highway Traffic Act) related acts and regulations; ability to interpret and apply ministry policies and procedures to unique and complex cases”. In determining that Ms. Nucci was not qualified for the position, the Redeployment Officer stated that she had: “No demonstrated knowledge of legislation (Highway Traffic Act), related Acts and regulations”. This was the Employer’s only stated reason for denying her the position.

13Following that determination, the Union notified the Employer that it was going to challenge its decision respecting Ms. Nucci’s qualifications for the Group Leader position, as the determination was in breach of the Memorandum of Settlement. In its view, Ms. Nucci did possess the essential qualifications for the position at the time of the search. Alternatively, she would have been able to acquire the capacity to become satisfactorily familiar with the Highway Traffic Act and the related legislation through a brief period of familiarization.

14At the second day of hearings, on 1 November 2011, the Union informed the Board and the Employer that, at some point during the autumn of 2009, Ms. Nucci had provided a revised and updated version of her employee portfolio respecting her qualifications to a staff employee of the Union. However, for unexplained reasons, that portfolio was not forwarded to the Employer. Consequently, the Employer had only considered Ms. Nucci’s original employee portfolio during its redeployment search during the autumn of 2009.

15Witness evidence was received during the 1 November hearing. Throughout the hearing on this date, Ms. Silvana Cianni was present. She was selected for the vacancy in the Group Leader position at the Ministry of Transportation in the autumn of 2009, and is the present incumbent in the position. As a third party with qualified standing, she was invited to give a statement, to participate in the questioning of witnesses, and to provide any additional relevant evidence and arguments to the Board. Ms. Cianni told the Board that she had been originally assigned to the position in December 2008 in an acting capacity, and was subsequently awarded the position because of her experience and qualifications, including her working knowledge of the Highway Traffic Act. She expressed resentment that the Union would not represent her at this hearing, although she acknowledged that the Union had informed her prior to the hearing that it could not legally represent both her and Ms. Nucci at the hearing.

16The only witness to give testimony at the hearing was Ms. Jabeen Khan, who was called by the Employer. Ms. Khan is presently the Regional Manager, Road User Safety Division, Regional Operations (Central East Division) at the Ministry of Transportation. In the autumn of 2009, she held the position of Manager of Field Services at the Ministry, to whom the Group Leader reported.

17In her direct evidence, Ms. Khan stated that the clerks who arranged the scheduling for the senior driver examinations with Ministry of Transportation officers were required to review the profile of the senior drivers in order to assess whether the driver was eligible for a renewal of his or her driving license; whether they still lived at the listed address; and whether there is any English language difficulty. They are frequently on the phone with senior drivers in order to schedule appointments, or to answer clientele questions. When the scheduling clerks are unable to answer queries posed to them by the public, they turn to the Group Leader for assistance, including on legislative and policy questions.

18According to Ms. Khan, the Group Leader is the go-to person at the call-centre. The Group Leader would be expected to have communication skills; leadership abilities; effectively deal with the public stakeholders, MPPs and the Minister’s office; and work well in a high-stress environment. When asked by the Employer if any training was provided to the Group Leader upon his or her initial appointment, she replied that no training was provided. Rather, there was an expectation that the successful candidate would have already obtained the requisite knowledge as a senior driver scheduling clerk or in some other comparable position in the Ministry. Upon appointment, the new Group Leader would be expected to “step right into the position”. In particular, the successful candidate would already have to be familiar with the Highway Traffic Act and other legislation relevant to the Ministry. All five individuals who had served as Group Leaders since 2003 had initially worked as senior driver scheduling clerks or in other related positions within the Ministry.

19When asked whether a candidate for the Group Leader position who did not have a Ministry background and experience with the Highway Traffic Act could assume the role with an orientation, Ms. Khan stated that an orientation would not be sufficient. The Ministry has never run an orientation session for the position. The expectation would be that the Group Leader would be an expert from the very beginning. “They must know the Act, not simply be able to read it.” She said that she herself could not do the job, because she did not have the requisite technical expertise and experience. In her estimation, it would take years to acquire the requisite knowledge, because of the complexity of the licensing control area. Ms. Khan pointed to the various flag alerts concerning licence suspensions that would appear on a senior driver’s portfolio which the Group Leader had to know intimately, such as suspensions for not attending an interview, or for not paying a fine, or for accumulating demerit points or for medical reasons.

20In Ms. Khan’s opinion, if the Group Leader did not have the requisite experience to handle these kinds of queries from the scheduling clerks, she or he would not gain the respect of the staff, and thus wouldn’t be able to effectively perform the job. An inexperienced Group Leader might provide a clerk with incorrect information, which could then lead to a driver retaining his or her licence and subsequently driving on the road when he or she might well be presenting a safety risk to the public.

21In cross-examination, Ms. Khan acknowledged that only specific parts of the Highway Traffic Act were relevant to the work of the senior driver examination scheduling office. When asked whether the Group Leader would be dealing with the same provincial legislation on a repeated basis, she said yes, but added that the call centre also received questions from the public that pertained to general features of licensing. According to Ms. Khan, no external candidates outside of the Ministry of Transportation have ever been appointed to be a Group Leader. It was not impossible for an external candidate to become a Group Leader, but they would not be qualified for the position unless they already had some licensing experience and they already knew the Act.

22On re-examination, Ms. Khan testified that the Group Leader was required to know the Highway Traffic Act well enough to assimilate its technical features so as to be able to accurately and effectively answer the actual questions posed by the clientele.

23In response to a question that I asked, Ms. Khan stated that the only part of the Highway Traffic Act that was directly relevant to the Group Leader’s job was the section on driver licensing. She was not aware as to how many sections were in this particular part of the Act.

Argument

Union

24The Union argued that there are two issues in front of me. The first issue is procedural: should the Employer be required to consider Ms. Nucci’s revised and updated employee portfolio, which contained additional information about her qualifications acquired during her most recent assignment at the Consent Capacity Board at the Ministry of Health and Long-Term Care? The Union maintained that the Employer had a duty, while searching for a vacant position for Ms. Nucci as per the terms of the Memorandum, to consider the skills and experience that she acquired through her current position.

25The Union referred to the following provision in the governing 2009-12 Collective Agreement:

Article 20.1.2.4

An Employee Portfolio will be deemed to include the qualifications and knowledge as identified in the employee’s current position description for the purposes of Article 20.3 (redeployment), unless otherwise modified by the employee.

26The Union submitted that the Employer’s failure to appoint Ms. Nucci to the Group leader position breached not only the Memorandum, but also these above-mentioned Collective Agreement provision. It maintained that, while the search was done via the Memorandum, the Employer was also bound by the Collective Agreement, in particular the requirement that her work at the Capacity Consent Board was to be part of her employee portfolio. The effect of the Memorandum was to extend the Employer’s obligation to search for opportunities for Ms. Nucci; since the Memorandum echoed the language of the Collective Agreement, these provisions applied to the search. Consequently, this procedural flaw in the search process had a substantial impact on Ms. Nucci’s rights during the search, and the flaw violated both the Memorandum and the Collective Agreement.

27The second issue raised by the Union is substantive: did the Employer breach the September 2009 Memorandum of Settlement when it declined to place her in the vacant Group Leader position at the Ministry of Transportation on the grounds that she lacked the necessary experience with the Highway Traffic Act and related legislation?

28The Union drew my attention to the following provision in the Collective Agreement:

Article 20.3.1

An employee who has received notice of lay-off in accordance with this article shall be assigned to a position that becomes vacant in his or her ministry or in another ministry during his or her notice period provided that:

(a) The vacant position is within a range of classifications whose maximum rate if 5% above and 15% below the maximum rate of the employee’s own classification; and

(b) The vacant position is within a forty (40) kilometre radius of his or her headquarters; and

(c) He or she is qualified to perform the required duties; and

(d) There is no other person who is qualified to perform the required duties, who has a greater length of continuous service and who is eligible for assignment to the vacancy either pursuant to article 20.3 or Article 20.6 (Recall).

29The Union argues that, whether or not the Employer properly considered her work at the Consent Capacity Board, Ms. Nucci was qualified to be appointed to the Group Leader position. In particular, she had the requisite abilities, skills and qualifications to understand, interpret and apply the relevant Ministry legislation. Even if she did not have the necessary immediate knowledge of the Highway Traffic Act, she would have been able to acquire this knowledge through a general orientation period, which the Employer would have been required to provide. In failing to appoint her to the Group Leader position, the Employer violated Articles 1 and 3 of the Memorandum.

30The essence of the Union’s argument on this point is that the Employer cannot expect the employee to have full knowledge of the new position in the Ministry, such that he or she would be ready to start immediately upon assignment at full gallop. Rather, in the Union’s view, the employee is qualified if he or she has the requisite transferable skills to learn the new position in a relatively short period of time.

31Turning to the evidence, the Union maintained that the Employer’s only stated reason for rejecting Ms. Nucci’s candidacy was her lack of demonstrated knowledge of legislation (Highway Traffic Act), related Acts and regulations”. It emphasized that knowledge on the Act requires intimate familiarity only with the driver licensing section of the legislation. Accordingly, any other evidence pertaining to the duties of the Group Leader position are not relevant in this context.

32Addressing Ms. Nucci’s qualifications, the Union submitted that her employee portfolio –whether the original portfolio or the updated and revised one – demonstrated that she possessed extensive experience and abilities to learn and to work with the relevant Ministry legislation. These are all transferable skills that Ms. Nucci would be able to bring to the Group Leader position, and that these skills were wrongly overlooked in the re-assignment process.

33As case law, the Union submitted OPSEU (Ken Tilden) and Ministry of Municipal Affairs and Housing (19 October, 1998) (Dissanayake) and AMAPCEO (Policy Grievance) and Ministry of Government Services, [2009] O.G.S.B.A. No. 215 (Dissanayake).

34The Union has requested an order that Ms. Nucci is to be awarded the Group Leader position.

Employer

35The Employer responded first to the Union’s procedural issue, as to whether it was required to consider Ms. Nucci’s experience and qualifications developed during her current position when conducting the surplus search.

36It submitted that the answer can be found in Paragraph 10 of the September 2009 Memorandum of Settlement, which it maintained modified and superseded the Collective Agreement. The Employer pointed out that Paragraph 10 granted Ms. Nucci with the opportunity to provide an updated employee portfolio to the Employer within a week of the signing of the Memorandum, and she did not take advantage of this opportunity. The Employer acted within its responsibilities and obligations by relying upon the existing portfolio as per the Memorandum. Accordingly, there is no procedural flaw in the process, and the Union’s argument on this point ought to be dismissed.

37Turning to the Union’s substantive argument, the Employer submitted that, even if Ms. Nucci’s work at the Capacity Consent Board was required to be considered in these circumstances, and even if her qualifications include the scheduling of employees and the interpretation of legislation, she was not qualified for the Group Leader position in the Ministry of Transportation, and the Memorandum was not therefore breached by the Employer.

38The relevant provision in the Memorandum of Settlement is Paragraph 1(a):

1. The Employer agrees to conduct a search of all OPSEU vacancies currently in RIMS as of the signing of this Settlement to determine whether:

(a) there is a vacant position for which the Grievor is qualified to perform the required duties;...

39Simply put, the Employer argued, Ms. Nucci did not have the requisite qualifications for the position because she did not have the required experience and familiarity with the Highway Traffic Act. This requirement is a fundamental and appropriate pre-condition for the Group Leader position. Ministry-specific knowledge was required for the position, and this requirement falls within the rights of the Ministry to employ.

40Specifically, the Ministry required five qualification factors for the group leader position, and Ms. Nucci had to possess all five factors in order to receive the position. She was qualified for four of the factors, but not with respect to the legislative requirement. This legislative factor was a significant and vital feature of the job, as evidenced by the 30% value attached to it. As a leadership position, this legislative qualification factor is an essential pre-requisite, for which training or familiarization are not appropriate employment substitutes for possessing the actual and already-acquired skills.

41The Employer cited the evolution in the language used in the Collective Agreement’s Redeployment provisions over the past three Agreements. In the 2002-04 Collective Agreement, the language in Article 20.5.1 (c) stated that the employee seeking redeployment is to be “minimally qualified to perform the job; this is defined as ‘the ability to do the job at entry level’”. The same language is found in Article 20A.5.1 (c) of the 2005-08 Collective Agreement. However, in the 2009-12 Collective Agreement, the language in the Redeployment provision – Article 20.3.1 (c) – now stated that “he or she is qualified to perform the required duties”. This change, the Employer submitted, had raised the qualifications bar for surplussed employees seeking a new position through redeployment, and reinforces the Employer’s argument that the legislative familiarity requirement for the Group Leader position is justified.

42The Employer also submitted the memos dated 25 July 2006 and 4 November 2009 from the Employer and the Union, where they have provided explanatory notes to “assist the parties in interpreting and applying the Employment Stability provisions of the Collective Agreement”. These memos were drafted by the parties to assist managers and union officers with the implementation of the redeployment provisions. In the 2006 memo, the parties answered the question as to the meaning of “qualified to perform the required duties” as found in Article 20.3.1 (d). The 2006 memo provides the following:

This means the employee must have the necessary skills and knowledge to perform the core components of the position at a working level and will not require training in these areas of the position.

In the 2009 memo, reflecting the current Collective Agreement, the parties repeated the above-mentioned wording. They also added the following:

Where no EP [Employee Portfolio] is submitted, an employee’s EP for the purpose of matching the surplus employee to a position under Article 20.3 will be deemed to include the qualifications and knowledge as identified in the employee’s current home position description, unless otherwise modified by the employee. An employee may update their EP at any time and the changes will be implemented within five working days.

43The Employer submitted that, arising from the language of the Collective Agreement and these explanatory memos, there is no requirement on the Employer to provide training in a redeployment case. Thus, the matter of dispute arising from the 2009 Memorandum of Settlement should be dismissed.

44In further support of its argument, the Employer cited the following case law: AMAPCEO (Policy Grievance) and Ministry of Government Services, [2009] O.G.S.B.A. No. 215 (Dissanayake); OPSEU (Ishrat Ansari) and Ministry of Agriculture, Food and Rural Affairs (13 November 1998) (Abramsky); OPSEU (Henderson) and Ministry of Citizenship (31 March 1992) (Barrett); and OPSEU (Loebel) and Ministry of Municipal Affairs and Housing (15 February 1983) (Verity).

45In the alternative, if the Union is successful in establishing that Ms. Nucci had the requisite qualifications for the Group Leader position, then I should not displace the current Group leader from her position, but rather order a new search.

Decision and Reasons

46The substantive question posed to me by the parties is whether the Employer’s determination that Ms. Nucci was not qualified for the Group Leader position in the Ministry of Transportation breached the terms of the September 2009 Memorandum of Settlement.

47Before answering that question, I must first answer the procedural question raised by the Union: should the Employer be required to consider Ms. Nucci’s revised and updated employee portfolio, which contained additional information about her qualifications acquired during her most recent assignment at the Consent Capacity Board at the Ministry of Health and Long-Term Care?

48In my view, the answer to the procedural question is no. This matter can be decided on the clear wording of Paragraph 10 of the Memorandum of Settlement. There is nothing in the evidence which establishes that the Employer breached this provision. In the alternative, I find that, even if Ms. Nucci’s updated employee portfolio had been placed by the Union in a timely fashion in front of the Employer as it was conducting its redeployment search, it would not have any bearing on the Employer’s assessment of Ms. Nucci’s qualifications for the Group Leader position that is presently in dispute. The substantive issue in this matter goes to the meaning of “qualifications” in this context and whether Ms. Nucci had a demonstrated knowledge of the Highway Traffic Act. Her updated employee portfolio would not have contained any additional, helpful or relevant information on this matter, as she did not acquire any experience with the Act during her work at the Capacity Consent Board that would meaningfully add to her earlier employee portfolio that had been completed and forwarded to the employer.

49Turning to the substantive issue, I am carefully considered the evidence, the arguments, the case law submitted by the parties, the wording of the 2009 Memorandum, and the context provided by the language of the Collective Agreement. The factors that I have particularly kept in mind are the following:

1. Paragraph 1(a) of the Memorandum requires the Employer to conduct a search of all OPSEU vacancies currently in RIMS as of the date of the signing of the Settlement to determine whether there is a vacant position for which the Grievor is qualified to perform the required duties. [Emphasis added]

2. While I am not directly guided by the language of the Collective Agreement, as this is not a grievance going to a purported breach of the CA, I note that Article 20.3.1(c) – the redeployment section – states that a laid-off employee shall be assigned to a vacancy, provided that “he or she is qualified to perform the required duties”[Emphasis added]. This language is identical to the relevant language in the Memorandum.

3. The language in Article 20.3.1(c) is less restrictive than the redeployment language in the previous Collective Agreement, which used the term: “he or she is minimally qualified to perform the job; this is defined as ‘the ability to do the job at entry level’”.

4. As a general rule, the redeployment of surplussed employees would not ordinarily require ministry-specific or other unique knowledge, beyond the expected and justifiable qualifications, as an essential pre-condition for an assignment to a particular position. I agree with Vice-Chair Dissanayake, in AMAPCEO (Policy Grievance) and Ministry of Government Services, para. 52, that, with respect to the meaning of “qualifications”, the spirit of the redeployment provisions should only require the surplussed employee to demonstrate that she or he has adequate transferable skills and experience, and is capable of learning the specifics of the vacant job under consideration within a reasonably short period of time. I say this even though the language in the Memorandum is arguably more lenient towards the Employer than the “entry level qualifications” language in the AMAPCEO collective agreement considered by Vice-Chair Dissanayake.

5. However, I also agree with Vice-Chair Dissanayake’s comments later in that same decision that, as an exception to the general rule, some positions may legitimately require ministry specific or other unique qualifications that should not expect a familiarization period. That is, the employee is expected to be fully or virtually-fully functional upon commencing the new job. In circumstances where the Employer is going to raise this kind of requirement as an essential qualification, it must demonstrate, on the balance of probabilities, that this ‘fully-functional’ or ‘virtually-fully-functional’ qualification is integral to the core duties and responsibilities of the particular position, and therefore the position cannot be expected to provide a familiarization period.

6. All parties agreed that Ms. Nucci did not have any specific experience or familiarity with the relevant portions of the Highway Traffic Act.

7. When devising the position description for the Group Leader job, the Employer had assigned a value of 30% to: “Demonstrated knowledge of legislation (Highway Traffic Act) related acts and regulations; ability to interpret and apply ministry policies and procedures to unique and complex cases”. This value assignment made it equal to the other leading criteria pertaining to group leadership skills.

50Having considered all of the evidence, I am satisfied that the Employer has demonstrated, on the balance of probabilities, that it was proper for the Group Leader position to require that a surplussed employee would have to be ‘virtually-fully-functional’ upon assignment to this particular position. In other words, as an essential pre-condition, the surplussed employee must have a demonstrated knowledge of the Highway Traffic Act without the opportunity for a familiarization period.

51I have come to this conclusion because Ms. Khan’s evidence has persuasively demonstrated that the Group Leader position required someone who could function immediately at a high level with an intimate understanding of the relevant parts of the application legislation. Ms. Khan’s evidence was not significantly shaken on cross-examination. In directly supervising the Ministry’s call centre, the Group Leader is responsible for ensuring the efficient and accurate flow of legislative, technical and policy information from the regional scheduling clerks to the public. A core aspect of the job involves the hands-on regulation of public safety on the roads. All of these features demonstrate the necessity of the person in the Group Leader position possessing, from the beginning, an intimate familiarity not simply with the skill of legislative interpretation, but with a specific personal knowledge of the relevant Act and its pertinent sections. These features are sufficient in this case to establish the ‘virtually-fully-functional’ qualification for the job, and to make the Group Leader position one of those exceptions to the general rule pertaining to ‘adequate transferable skills and experience’.

52I am quite satisfied that Ms. Nucci is a capable and skilled public employee. Hence, this decision should not be seen as an adverse commentary in any way of her abilities and qualifications. Rather, the outcome speaks to the quality of the Employer’s evidence: the Group Leader position is one of those exceptions that legitimately requires more than the standard possession of ‘adequate transferable skills and experience’ by a surplussed employee engaged in the redeployment process.

53Accordingly, for the reasons stated, I have dismissed the Union’s contention that the Employer has breached the terms of the 18 September 2009 Memorandum of Settlement with respect to its decision not to redeploy Ms. Nucci in the position of Group Leader in the Ministry of Transportation.