Grievance Case Summary - G-229

The Grievor submitted a grievance against the language requirements of a position for which a staffing action had been initiated. She was unable to qualify for the position because she did not meet the language requirements. She argued that the mandatory review of the requirements when there is a staffing action had not been done and that the language requirements were no longer justified, given the changes to the Division and to the duties attached to the position. In response to the grievance, the Appropriate Officer who was acting at the time of the staffing action as the Commanding Officer, provided reasons why he decided to maintain the bilingual designation of the position. The reasons were based on the position's functions. The Grievor contended that some of those functions no longer existed or had changed.

The Grievance Advisory Board (the "GAB") recommended that the grievance be denied on the basis that the signature of the Appropriate Officer on the Request for Staffing Action form meant that a review of the language requirement had been conducted and that it had been decided to maintain the linguistic profile of the position. The GAB examined the work description of the position and further found that the position required the capability of communicating in both official languages. The Level I adjudicator agreed and denied the grievance. He found that due diligence had been exercised by the Appropriate Officer in his decision to retain the language requirements for the position.

On June 25, 1999, the ERC issued its findings and recommendations. The Committee found that a proper review of the position at the time the staffing action was commenced was not conducted, in contravention of Administration Manual. Although the Appropriate Officer did set his mind to the issue of whether the bilingual language requirements of the position remained justifiable, his review was conducted approximately two months after the staffing action had been initiated. In the circumstances of this case, which involved a change from a bilingual region to a unilingual region as well as changes in the position's functions, a proper review would be one that took these factors into account. The Committee also found that there was insufficient evidence before it on which to make a finding that a proper review would inevitably have led to a determination to maintain the language requirements of the position.

The Committee recommended that the language requirements of the position be reviewed in accordance with the Administration Manual and that the review take into account the questions raised in the Committee's analysis of the position's functions. If it is determined that the language requirements should have been identified as English essential at the time of the staffing action, the Grievor should be compared with the successful candidate and if found to be better qualified, promoted retroactively or awarded a future promotional opportunity effective to the date the position was filled following the staffing action.

The Committee also recommended that the Force ensure that the work description for the position accurately reflect the duties currently being performed.

On July 23, 1999, the Commissioner rendered his decision in this matter. His decision, as summarized by his office, is as follows:

The Commissioner examined the grievance and agreed with the Committee that it should be upheld. He ordered a full and complete revision of the language requirements of the Drill sergeant's position based on the analysis provided by the Committee.