GSB#2013-3614, 2013-4264, 2013-4266

UNION#2013-0628-0003, 2014-0628-0001, 2014-0628-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Chabot et al)

Union

• and -

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

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

Billeh Hamud Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Kevin Dorgan Ministry of Government Services Legal Services Branch Counsel

HEARING

July 29, 2014

Decision

1This proceeding was conducted pursuant to article 22.16 of the collective agreement. This article provides for a mediation/arbitration procedure with the intent that grievances be resolved in an expeditious and informal manner.

2At the outset, the parties filed an Agreed Statement of Facts. That document is appended to, and forms part of, this Decision.

3This Vice-Chair met separately with the parties and received submissions with respect to the issues in dispute. No viva voce evidence was presented. I was also provided with the following authorites: Re Ontario Hydro and Canadian Union of Public Employees, Local 1000 (1996), 1996 CanLII 20366 (ON LA), 62 L.A.C. (4^th) 420 (Picher); Re Pepsi- Cola Canada Beverages (West) Ltd. and United Food and Commercial Workers International Union, Local 330W (1994), 1994 CanLII 18748 (MB LA), 44 L.A.C. (4^th) 47 (Chapman); CUPE Local 1750 (Union) and the Workplace Safety and Insurance Board, GSB #2010-2688 (Nairn); OPSEU (Beck) and the Ministry of Government Services, GSB#196-89 (Watters); OPSEU (Osborne) and the Ministry of Natural Resources, GSB#2011-3795 (Petryshen); OPSEU (Knapp) and the Ministry of Finance, GSB#2720-96 (Abramsky); OPSEU (Giasson) and the Ministry of Labour, GSB#2250-87 (Watters); OPSEU (Pino) and the Ministry of Education and Training, GSB#1236-94 (Kaplan); OPSEU (Group Grievance) and the Ministry of the Attorney General, GSB#1455-00 et al. (Abramsky).

4Prior to the preparation of this Decision, I reviewed and considered the Agreed Statement of Facts, the parties submissions and the authorities relied on. Having done so, I conclude that the grievances are to be dismissed for the reasons set out below.

5The job ad posted in September, 2013 in respect of the original competition (Job ID: 56981) set out a mandatory requirement of “advanced level oral French”. It is agreed that the grievors did not possess this qualification. At the time of the posting, their positions were designated as unilingual positions.

6Sudbury is designated as a French speaking area under the French Language Services Act. Approximately seventy-five percent (75%) of the positions at the Central Ambulance Communications Centre (CACC) are designated as bilingual. I accept that it was the Employer’s management right to determine if it needed bilingual Ambulance Communications Officers 1 in order to deliver service to the public. There is nothing to indicate that the Employer, in this instance, acted improperly or in bad faith when it assessed the need. In my judgment, the French language requirement was both reasonable and closely related to the job to be performed. I further accept that the Employer had a legitimate business purpose when it posted the positions as bilingual. I note, for the record, that the position material to this proceeding is the “1 fixed-term, full-time ACO1 position, for up to 12 months”. It follows that, as the grievors did not possess the mandatory qualification, they are not entitled to the position or to the remedies claimed in the grievances.

7The Union challenged the fact that the posting in issue did not require applicants for the bilingual positions to have already completed the Entry to Practice (ETP) training or to have secured an Ambulance Communications Officer Certificate. It is agreed that “in most job postings for ACO positions across the province (including most job postings for ACO positions in the CACC in Sudbury), candidates are required to have already completed ETP training/are required to already have an ACO Certificate”. Ms. Dumouchel, the successful applicant, did not have this qualification at the time she was awarded the position. As stated in paragraph #18 of the Agreed Statement of Facts, she was informed that completion of the ETP training was mandatory and that failure to do so in the required timeframe would result in an immediate termination of the secondment and a subsequent return to her home position. Simply put, Ms. Dumouchel was advised that completion of the necessary training was a requirement for continued employment in the position.

8Given the fact the grievors did not possess the French language qualification, the Employer’s decision to not require the completion of ETP training, or the acquisition of an Ambulance Communications Officer Certificate, in advance of the application is immaterial and of no consequence with respect to the resolution of these grievances. If the Employer had decided otherwise, then Ms. Dumouchel would not have qualified for the position. However, this would not have resulted in any of the grievors being selected for the job, as they did not satisfy the language requirement set out in the posting.

9I accept that the Employer framed the posting as it did for a legitimate business purpose, namely, to recruit bilingual applicants for the Sudbury CACC. I note that the Employer ultimately had to staff the position first with Ms. McAllister and then with Mr. S. Fong on a unilingual basis between January 6, 2014 and the date of the incumbent’s return, given “there were no bilingual ACO1 employees at the CACC in Sudbury that were available to perform this temporary assignment”.

10In the final analysis, I find that the Employer’s decision was a permissible exercise of discretion under its management rights. The decision was consistent with the job specification referenced in paragraph #11 of the Agreed Statement of Facts. Additionally, there is no evidence of any bad faith on the part of the Employer. Finally, I have not been persuaded that the Employer failed to fairly and uniformly apply the selection criteria with respect to the instant competition.

11The grievors, and particularly Ms. Chabot and Mr. Bone, claimed that they, rather than Mr. Fong, should have been appointed to backfill the temporary position after Ms. Dumouchel vacated same in April, 2014. Their claim was premised on having greater seniority than Mr. Fong. I do not think that this claim flows from their grievances concerning their lack of success in the original competition which commenced in September, 2013. Rather, the complaint relates to the Employer’s actions, many months later in April, 2014, when Ms. Dumouchel chose to leave the position. I am satisfied that the grievors should have filed a second independent grievance if they wished to contest Mr. Fong’s appointment. In my view, this matter was not captured by their initial grievances.

12In any event, I accept that the Employer acted properly when it appointed Mr. Fong to backfill the position, as it did so to provide for a developmental opportunity within the CACC. I was advised that the grievors had all previously worked in fixed-term, full-time ACO1 positions, whereas Mr. Fong had not. There is no evidence to establish that the Employer acted in bad faith or in an improper or arbitrary fashion with respect to Mr. Fong’s appointment.

13For all of the above reasons, the grievances are dismissed.

Dated at Toronto, Ontario this 5^th day of August 2014.

APPENDIX

STATEMENT OF FACTS

Background

1. This case deals with grievances filed by Louise Chabot, Darryl Bone and Josie McAllister (“the Grievors”) regarding a competition for a bilingual Ambulance Communications Officer 1 (ACO1) position located at the Central Ambulance Communications Centre (CACC) in Sudbury in the Ministry of Health and Long-Term Care.

2. The CACC in Sudbury is generally staffed with the following complement of positions:

• 12 regular full-time bilingual ACO1 positions;
• 4 regular full-time unilingual ACO1 positions;
• 4 regular full-time ACO2 positions;
• Several fixed-term, on-call ACO1 positions; many of these positions are unilingual and some are bilingual

3. The fixed-term, on-call ACO1 employees are generally hired on 6-month contracts. These employees backfill the regular full-time employees when they are absent from work. As such, the hours of work of these employees may vary from 0 to 40 hours per week.

4. At the time they filed their grievances, the Grievors were employed with the CACC in Sudbury in fixed-term, on-call ACO1 positions. Their positions are designated as unilingual positions.

5. The Grievors do not possess “advanced level oral French” skills. Therefore the Grievors are not qualified for bilingual ACO1 positions at the CACC in Sudbury.

6. During a shift, if a unilingual ACO cannot speak French, and he/she is communicating with a Francophone caller, the Employer’s local guidelines state that the call is to be transferred to a bilingual ACO, or the “Language Line Services” may be used. The “Language Line Services” is a third-party telephone service by which an ACO is immediately connected with an interpreter who may translate for the caller and the ACO.

Original Competition (Job ID: 56981) – September 2013

7. On September 10, 2013, a job ad was posted (Job ID: 56981) for the following positions at the CACC in Sudbury:

• 2 regular, full-time ACO1 positions;
• 1 fixed-term, full-time ACO1 position, for up to 12 months

8. The job ad restricted the competition to employees in the Ontario Public Service living or working within 125 km of the CACC in Sudbury.

9. The fixed-term, full-time ACO1 position was posted to backfill for a regular, full-time ACO1 employee who was scheduled to go off work on pregnancy/parental leave starting in October 2013.

10. The job ad listed “advanced level oral French” as a mandatory requirement for all three positions.

11. The job specification attached to the job ad also stated the following:

Staffing and Licensing:

Mandatory Staffing Requisites for Position: as noted under the Ambulance Act of Ontario incumbents will be free of any criminal conviction considered relevant to the position of Communications Officer; ability to successfully complete pre-employment standardized testing; obtain a Ambulance Communication Officer Certificate and successfully complete/sign off at the local training; within thirty days of employment acquire a valid Standard First-Aid and Targeted-Responder CPR and obtain a Restricted-Radio Operators Certificate through the ACO program provided by the ministry.

Designated positions: FLS oral Advanced.

12. The deadline for applications was September 24, 2013.

13. All three positions were filled through the competition, as follows:

• The 2 regular, full-time ACO1 positions were awarded to Nancy Gosselin and Daniel St. Pierre. The start dates for these two employees was January 6, 2014.
• The 1 fixed-term, full-time ACO1 position was awarded to Roxanne Dumouchel. The start date for Ms. Dumouchel was April 14, 2014.

14. At the time she was awarded the fixed-term, full-time ACO1 position, Ms. Dumouchel had “advanced level oral French”. However, Ms. Dumouchel did not have an Ambulance Communication Officer Certificate.

15. In order to obtain an Ambulance Communication Officer Certificate, Ms. Dumouchel was required to attend and complete Entry to Practice (ETP) training. This training, which lasts 6-8 weeks, must be completed in order to obtain an Ambulance Communication Officer Certificate.

16. In most job postings for ACO positions across the province (including most job postings for ACO positions in the CACC in Sudbury), candidates are required to have already completed ETP training/are required to already have an ACO Certificate.

17. Ms. Dumouchel’s start date was set for April 14, 2014, since the earliest available ETP training was scheduled for April 2014.

18. On December 19, 2013, Ms. Dumouchel signed a Temporary Assignment Agreement, which including the following terms:

OTHER CONDITIONS

The Employee is required to attend the mandatory Entry to Practice (ETP) – Ambulance Communications Officer Training Program starting on April 28, 2014. Attendance is mandatory for duration of the certification program and as such, requests for time off will be denied to ensure employee is qualified for this seconded position.

Failure to certify in ETP, will result in an immediate termination of this secondment and employee will be required to return to home position with proper notice.

19. In the interim, between January 6, 2014 and April 13, 2014, one of the Grievors, Ms. Josie McAllister, was temporarily assigned to a fixed-term, full-time ACO1 position. Under this fixed-term contract, Ms. McAllister was not required to possess “advanced level oral French” skills. The Employer hired Ms. McAllister on a fixed-term contract for this 3 ½ month period in order to backfill for Ms. Dumouchel, given Ms. Dumouchel’s delayed start date. There were no bilingual ACO1 employees at the CACC in Sudbury that were available to perform this temporary assignment.

20. Following Ms. Dumouchel’s departure from the position in April 2014, the Employer hired an employee into a unilingual, fixed-term ACO position to backfill for the employee on maternity leave.

Additional vacancy leads to job ad for employees on notice of lay-off – October 2013

21. In the fall of 2013, two additional vacancies arose in the CACC in Sudbury. These vacancies related to two regular, full-time ACO1 positions.

22. These two vacancies arose because one employee successfully competed for an ACO2 position, and the other employee resigned to accept a position outside the Ontario Public Service. Both ACO1 positions left by these 4 employees had been designated as bilingual positions requiring “advanced level oral French”.

23. The Employer decided to award these two positions to two unsuccessful candidates in the competition described above (Job ID: 56981). In order for the Employer to “reach back” into a prior competition, the conditions under Article 6.1.2 must be met. This Article states:

6.1.2 Notwithstanding Article 6.1.1 above, the Employer may hire qualified candidates who previously applied for the same vacancy or new position provided that a competition was held during the previous fourteen (14) months following the closing date of the posting and was within 125 kilometres of the work location of the previously posted position, and provided that the position has cleared surplus. The Employer in these circumstances is not required to post or advertise the vacancy or new position. Where the Employer uses this provision, it shall notify the Local Union President where the vacancy or new position exists, ten (10) working days prior to filling the vacancy or new position. (FXT, SE)

[underlined emphasis added]

24. In order to first ensure that the vacancies had “cleared surplus”, the Employer posted a job ad for each of the two positions (Job ID 57967 and Job ID 58634). Both job ads clearly stated that the posting was “restricted to OPSEU represented employees who have or have been deemed to have received notice of layoff and eligible for a Targeted Direct Assignment in accordance with OPSEU Article 20.”

25. One of the job ads (Job ID: 57967) (which was posted on October 17, 2013, with a closing date of October 31, 2013) did not list “advanced level oral French” as a mandatory requirement for the position.

26. The Grievors saw this job ad (Job ID: 57967) for OPSEU-represented employees on notice of lay-off. The Grievors advised local management that they wanted to apply for the position.

27. It was at this time that local management became aware that the job ad (Job ID: 57967) contained an error in that it had not listed “advanced level oral French” as a mandatory requirement for this position.

28. There were no Targeted Direct Assignment matches to Job ID: 57967.

One of job ads for employees on notice of lay-off corrected to include bilingualism requirement – December 2013

29. On December 23, 2013, the Employer re-posted Job ID: 57967 as Job ID: 59848. However, this time, the job ad included “advanced level oral French” as a mandatory requirement for the position. The closing date was listed as January 9, 2014. Once again, the job ad was restricted to OPSEU-represented employees on notice of lay-off.

30. On December 23, 2013, each of the three Grievors received a letter from local management which stated:

Thank you for bringing our attention the Job Ad posted on October 17, 2013 with Job ID 57967. As you pointed out, this Job Ad did not specify as a mandatory requirement for the qualifying application to be bilingual. As you are aware this job was posted for Sudbury CACC position number 182805 which is designated as a Bilingual Ambulance Communications Officer 1.

As a result of your question related to the October 17, 2013 posting, and after reviewing the job ad, it has been decided to repost using the proper criteria and ensuring only qualified individuals who are bilingual and are in notice of lay off may apply. Please see the attached new posting with Job ID # 59848 and with a closing date of January 9, 2014.

According to the posting with Job ID # 59848, only individuals in notice of layoff and who are able to meet all the requirements inclusive of proficiency in English and advanced level oral French may apply.

Grievances

31. On December 24, 2013, Louise Chabot filed a grievance which stated:

STATEMENT OF GRIEVANCE:

I grieve that competition 56981 was improper and was conducted in violation of Article 2 – Management Rights, Article 3 – No Discrimination/Employment Equity, Article 6 – Posting and Filling of Vacancies or New Positions and any other Acts, Articles or Policies that may apply.

SETTLEMENT DESIRED:

That I be awarded the position and be reimbursed for all lost pay, benefits, credits, seniority and overtime lost as a result of the Employer’s violation of the Collective Agreement. That I receive interest at the appropriate formula for said monies owed. That I receive a written apology from the Employer. Any other remedy that the Arbitrator deems to be appropriate.

32. Almost identically worded grievances were filed by Josie McAllister on January 18, 2014, and by Daryl Bone on January 24, 2014.

Employer fills vacancies pursuant to Article 6.1.2

33. There was no Targeted Direct Assignment matches for Job ID: 59848 and Job ID: 58634, and as such, the positions “cleared surplus”.

34. As a result, in January 2014, the Employer “reached back” to the job competition that occurred in the fall of 2013 (Job ID: 56981) and, pursuant to Article 6.1.2 of the Collective Agreement, hired two unsuccessful candidates from that earlier competition (Crissy Gravelle and Kim Ross) into two bilingual, regular, full-time ACO1 positions. At the time, both Ms. Gravelle and Ms. Ross were already working in bilingual fixed-term, on-call ACO1 positions.

Additional events

35. Ms. Dumouchel left her employment at the CACC in Sudbury only a few weeks after beginning her fixed-term, full-time contract on April 14, 2014. Ms. Dumouchel never completed the ETP training required under her Temporary Assignment Agreement.

36. One of the Grievors, Josie McAllister, successfully competed for a unilingual, regular, full-time ACO1 position in CACC in Sudbury. She has held this regular, full-time position since April 28, 2014. The two other Grievors remain in fixed-term, on-call ACO1 positions.

Parties’ positions

37. It is the Union’s position that the prerequisite qualifications for the Unilingual position should be the same as the Bilingual Ambulance Communications Officer position.

38. The Employer's position is that it is not prohibited from hiring candidates into ACO positions who have not already completed ETP training/who do not already possess an ACO certificate. In these circumstances, the candidate's completion of ETP training and successfully obtaining an ACO Certificate is a requirement for continued employment in the ACO position.```