AH - 177

IN THE MATTER OF AN ARBITRATION

BETWEEN:

CANADIAN PACIFIC LIMITED

(the “Company”)

AND

CANADIAN PACIFIC POLICE ASSOCIATION

(the “Union”)

IN THE MATTER OF THE GRIEVANCE OF R.A. SAUNDERS

SOLE ARBITRATOR:        J.F.W. Weatherill

There appeared on behalf of the Company:

J. McGuire

And on behalf of the Union:

R. Skelly

A hearing in this Matter was held at Montreal, Quebec, on September 25 and December 12, 1980.

AWARD

                In the grievance, dated January 4, 1980, the grievor protests the company’s failure to appoint him to the position of Constable at its Royal York Hotel in Toronto.  It is alleged that failure was in violation of the provisions of the collective agreement.

                The job in question was posted by Bulletinno.90 on December 12, 1979.  The grievor, it seems, was the only applicant.  On December 12, 1979.  The grievor, it seems, was the only applicant.  On December 27, 1979, bulletin no 90A was posted, indicating that “no qualified applications” had been received.  Subsequently the company appointed another employee to the position.

                Article 4.02 of the collective agreement provided as follows:

4.02        Vacancies shall be filled on the basis of qualifications and seniority:  qualifications being equal, seniority shall govern.  The officer of the Company in charge shall be the judge of qualifications subject to appeal, such appeal being made in accordance with the Grievance Procedure.

                Under this provision, to be entitled to a posted job an employee must be qualified for it.  Where there is more than one qualified applicant, the employee best qualified is entitled to the job, and it is clear that the company is the judge of relative qualification, in the first instance.  Only where qualifications are “equal” does seniority determine the matter.  Where, as here, there is only one applicant, the only question which arises is whether or not that applicant is qualified for the job.  The company of course must take its own determination on the matter of qualifications, but that determination is subject to appeal, and must be correct.  In the instant case, I have no doubt that the company acted in good faith and without any improper discrimination.  The question is, however, whether or not the grievor was in fact qualified to perform the job.

                The position in question was in classification of Constable.  The grievor had been employed in that classification for some six years.  Evidence as to the appraisal of his work shows that he was rated as a “good” or “average” employee.  There can really be no doubt that he was “qualified” in a general way for a position in the classification of Constable.  Within any classification, however, work is to be performed within particular positions and in particular area or circumstances.  It is possible that a person generally qualified as a Constable might not in fact be qualified to perform certain jobs within that classification.

                In the instant case, although the Bulletin listed no special requirements for the position, the company’s evidence is that the position of Constable at the Royal York Hotel called for qualities of diplomacy, good judgment and tact which, it is said, the grievor did not possess in sufficient measure.  In order to assess the validity of that judgment, it is necessary to consider the evidence of the grievor’s relevant work record and of his personality.

                The earliest matter of which there is evidence is a commendation of the grievor made by the Metropolitan Toronto Police in October of 1974.  At that time the grievor had obtained information which lead to certain charges being made in respect of offenses relating to drugs.  That is certainly evidence of the grievor’s qualifications and responsibility as a Constable in a general way, but it has no particular relation to the special qualities sought for work at the Royal York Hotel.  The next matter referred to was certain personal conduct of the grievor’s at another hotel owned by the company in 1975, during a period when he was apparently off work for a time after having been shot while on duty.  Whether or not the grievor could be said to have exercised “good judgment” in that matter, it is my view that it was too far removed in time, in place and in nature from any of the grievor’s potential duties at the Royal York to have any substantial bearing on this case.  The grievor, in that instance as in others, appears to have been rather truculent when questioned about his activities.  While I would agree that that aspect of the grievor’s personality is a negative one, the lack of tact thus revealed is a matter of degree:  because the grievor is something less than perfectly tactful or diplomatic, it does not necessarily follow that he is so tactless or undiplomatic as to be “unqualified” for the job in question.  These consideration would certainly weigh in comparing the grievor with some other applicant; here, however, where the grievor is the only applicant, the question is only whether or not he is qualified.  It is not material that there may well be room for improvement in some respects.

                Similar consideration apply with respect to an incident which occurred in December, 1976, in which the grievor,, who apparently suffered a minor concussion when attacked while on duty, behaved in a truculent and disagreeable fashion when taken to hospital for examination.  His conduct, while unpleasant, was not seriously improper and may have been attributable in part to his injury.  The incident does not really justify any conclusion as to the grievor’s qualification for work as a Constable at the Royal York.

                In April 1978 and again in December of 1979 the grievor was warned for being absent form duty without permission, in one case to do some personal banking and in another to get something to eat.  These incidents do relate to the matter of reliability, an important factor surely in any police position.  It should be noted, however, that assessments of the grievor’s performance over the years have rated him, under the heading of reliability, as “good” or as “satisfactory plus”.  These are not, I gather, particular high ratings, but are those of an average employee.  They do not suggest an employee who is unqualified.  Further, it must be observed that discipline and qualifications, while related, are distinct concepts.  In this case at least the grievor’s discipline record does not reveal an employee so unreliable or irresponsible as to be unqualified.

                The grievor has worked as a Constable for the company for some six years and formerly a police officer in England.  Over the years, he has worked on many occasions at the Royal York Hotel, and there is no evidence of complaints with respect to such work.  While, as I have indicated, there is some justification for the company’s view that he was somewhat lacking in tact and diplomacy on occasion, and while it would appear that he is at times “over-eager”, the evidence does not establish that the grievor’s shortcomings in these respects were so marked as to make him “unqualified” for the job.  It could well be that some other candidate would properly have been judged to be better qualified.  In this case, however, there was no other candidate.  While I do not agree with the union’s original contention, set out in the grievance, that being in the classification of Constable “automatically qualifies” the grievor for the position in question, it at least suggests a prima facie case for a finding of qualifications, especially where the employee has worked in the position on a number of occasions.

                For all of the foregoing reasons, it is my conclusion that the grievor was in fact “qualified” for the position in question and that, there being no applicants, he as entitled to it by virtue of article 4.02 of the collective agreement.  It would be proper for the company to point out to him the particular need for tact and diplomacy in that position.  It may be noted too, that article 4.03 of the collective agreement provides for a period of ninety days in which an employee must meet the requirements of a new assignment.

                The grievance is therefore allowed, and it is my award that the grievor be assigned to the position in question.

DATED AT TORONTO, this 9^th day of January, 1981.