HomeMy WebLinkAbout1986-0979.Thirmalai.89-11-01EMPLOYES DE LA COURONNE OE Lwmmo
C$N!AMISSION DE
REGLEMENT
DES GRIEFS
IN THE MATTER OF AN ARBITRATION
- Under -
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Thirumalai)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Industry, Tr~ade &.Technologyl Emplu?er
Before: Eric K. Slone Vice-Chairperson
J. McManus Member
L. Turtle Member.
For the Grievor: MS. Janet Masher, Counsel
Gowling, Strathy & Henderson
Barristers and Solicitors
For the Employer: Ms. Leslie .McIntosh, Counsel
Ministry of the Attorney General
Crown Law Office, Civil
For the Incumbent: Garth McElrea, in person
HearinUs: June 2, 1988, June 3, 1988,
November 29, 1988, April 13, 1989
and April 14, 1989
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AWARD
This grievance concerns a competition run for the position
of Financial Consultant within the London 'office of the Ontario
Development Corporation, a branch of the Ministry of Industry,
Trade and Technology .("the Ministry"). The job was posted in
June of 1986, and was open to the public as well as to applicants
vithin the public service. The successful candidate was Garth
McElrea, an outside applicant, who accepted the job offer and
assumed the position in September 1986.
One of the unsuccessful applicants for the job was Mr.
Thirumalai, who'was at the time a 54 year old individual with a
civil service background dating back to' 1970.
The Job
Over the course of five days of evidence, we heard much
about the position of Financial Consultant. For purposes of this *
award we do not need to go into great detail.
The Ontario Development Corporation ("ODC") fulfills a
public mandate of supporting small business and industry in the
Province, primarily through financial support but also by
providing consulting services to .assist businesses in achieving
viability. Ultimately, the aim df the program is to enhance and
support the Province's competitive position in the areas of'
industry, trade and technology. It is the job of.the Financial
Consultant to receive enquiries from small business
entrepreneurs, and ascertain whether or not they qualify for
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'financial assistance under the policies of ODC. If they do, the
Financial Consultant will work with the entrepreneur in writing
up a proposal for financing to be presented to ODC. If the
client does not qualify for financial assistance, nevertheless
the Financial Consultant must offer advice which will hopefully
benefit the entrepreneur and possibly. lead to sources of funding
elsewhere.
In order to perform the job, the Financial Consultant must.
have skills in the areas of accounting, financ.e and business
generally.
The particular position of Financial Consultant is an entry
level position, classified as an Industrial Development Officer
3. The Financial Consultant works under the supervision of a
Technical Consultant, and reports directly to a Manager within
the branch to which he is assigned.
The Grievor
The grievor has been a fulltime employee ,of ODC since 1976
His position at the time of then grievance, as now, is that of
Senior Insurance Officer. It is his job to review loan
applications and ensure that ODC is fully covered by way of
insurance on all assets which form part of the security package
held in support of the loan. The Insurance Section is part of
the Central Administration of ODC in Toronto.
The grievor joined.the Ontario public service in 1970 with
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the Ministry of Housing, where he worked as a management service
officer. He had certain financial administration dirties,
together with involvement in computer operations whereby, to use
his own words, he worked with program managers on improving their
operational efficiency and meeting day to day operational
requirements. In 1974, he joined the Ministry of Government
Services doing essentially the same work as before. Then in
he was taken in at ODC on a contract basis to help introduce
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computerisation to that agency. When his contract expired he was
absorbed into ODC as a fulltime employee. His classification was
Financial Officer 3. Up until 1981 he worked directly under a
Technical Consultant. When the incumbent in that position
retired, the grievor acted as a Technical Consultant 1 for a
period of 14 months and was ultimately reclassified back down to
a Financial Officer 3.
As described by the grievor, in his current position he
receives the accepted Offer of Loan which informs him as to the
details of the security being taken. It is his job to review the
application and determine the type and extent of insurance
coverage required. He must correspond with the borrower and
'communicate with various agents, lawyers and other
representatives. In his capacity first as Insurance Officer and
ultimately as Senior Insurance Officer, he has reviewed in excess
of 8,000 loan applications. Many of them he has read in full,
even though he is not strictly required to do SO. He advised
this Board, and we accept, that he acts with minimal supervision.
Other experience relevant to this grievance was his brieE
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tour of duty as a Loan Follow-up Officer in the Administrative
Branch of ODC. The function of that position is .to maintain
control on the borrower’s activity after the loan has been
disbursed. It involves obtaining and reviewing current financial
statements, and generally monitoring the operation to make
whatever adjustments to the security arrangements as are
required.
Prior to joining the Ontario Public Service in January 1970,
the grievor had been employed for many years with the railways in
India. He had progressed through the ranks first as a junior
cost accountant and ultimately as a senior cost accountant. His
education included a Bachelor of Commerce degree from Poona
University in India. He enjoys the professional designation in
Canada as a Certified Management Accountant, or C.M.A.
It is apparent that the~grievor has coveted the job of
Financial Of'ficer for some time. He has engaged in several
competitions for op,enings in that job. In order to enhance his
prospects, he participated in 1985 and 1986 in an Orientation
Program run by the Loan.Applications .Branch, the purpose of which
was to familiarise personnel in other branches of ODC with the
Financial Consultant's job functions. The grievor was only one
of three people to complete the program successfully. As part of
his orientation, he interviewed a client and wrote up a proppsal
for a $65,000 loan to that company. By all reports, he did a
creditable job for a first effort in putting together a loan
application.
,, 6,
When the subject job was' posted, the grievor was quick to
apply. It was his testimony that he felt the duties of a
Financial Consultant were well within his capabilities as a
C.M.A., and as someone experienced overall with the workings of
ODC .
The Comvetition
The selection committee consisted of John Mitchell, the
Director of the Loan Applications Branch, David Wright, the
Ranager of the Southwest Region of the Branch, and Richard
Nahabedian from the Human Resources Department of the Ministry.
A large volume of applications was screened, and it was decided
to give interviews to all persons who scored at least 12 out of
16 on either of Mitchell's or Wright's assessment based on a
simple set of selection criteria. It was also decided to give
interviews to any internal ODC candidates, regardless of their
scores. The grievor's scores on this initial screening were 10'
out of 16 according to Mitchell and 10-l/2 out of 16 according to
Wright. As an internal candidate, he was offered an interview.
For purposes of the interview, a,set of questions was
developed with a certain~ number.of marks assigned for each
question, totalling 100.~ A number of questions had several
parts, and it is of some significance that there was no agreement
among the interviewers as to the apprqpriate rating to be given
to each part of the question. Some of the questions were very
technical, such as question 4(a).which asked the applicant to
"determine the working capital position of a company based on the
7
balance sheet. What other section within the financial
statements would give you the same answer?" Other questions were
more policy oriented, such as question 10 which asked: "What do
you see as the government's role ih providing financial
assistance programs?" Others were purely personal, such as
question 12 which asked the applicant: "As you understand the
job, what strengths do you think that you can bring to it?"
Other parts of the questionnaire required the intervievers
to rate the candidates in the areas of communication skiUs,
academic qualifications, willingness to travel and preparedness
to relocate.
It should be mentioned that present during the interview-s
was a Mr. Joe Wood, a Financial Consultant from the London
office, who was present only as an observer and whose scores did
not play any part inthe final selection.
By all accounts, the grievor's interview did not go ver)
well. It was the grievor's evidence that not all,the questions
on the interview sheet were asked of him. More'likely, they were
asked but perhaps in slightly different terms. It appears that
at one point the grievor got into a debate with Mitchell and
Wright on a fairly picky technical point, relating to the
question of what other part of a financial statement would
provide one with the working capital of a company. It is not
important to decide who was correct in that debate. It was ,the
perception of Mitchell, Wright and Nahabedian that the grievor
had come to the interview with an attitude that he was the best
man for.the job and should get it. They also raised a serious
concern about the grievor's communication skills. Lt was felt by
all three that.the grievor was not a good listener. They also
criticised his speech as too rapid. It is a given fact that the
grievor speaks with a noticeable Indian accent which may be more
foreign to some ears than others. In the final analysis, the
grievor scored quite low on all of the scoresheets of the three
interviewers. He was not offered a second interview. 'Chat
opportunity was offered exclusively to the successful applicant
HcElrea, and to a Mr. Craig Richard, an internal applicant who
.had scored well with all interviewers.
While we mention the process of scoring for purposes of the
narrative, it must be observed at this time that this process was
highly deficient and ultimately we cannot attach much weight to
the scores which emerged from the interviews. Frankly, we are
not convinced that even the interviewers themselves placed much
reliance on their own scores. On the basis of all the evidence-,
we were left with the distinct impression that the intervielcers
formed a "gut impression" as to which candidates were seriously
"in the running", and which were not. That gut feeling, rather
than the more objective test scores, was the factor that decided
that McElrea and Richard were to be the two finalists. For us,
it was difficult to come to any other conclusion after hearing
all the evidence about the way the test scores were compiled.
Produced as exhibits at the hearing were the score sheets for
each of the official interviewers as well as Mr. Wood. Nr.
Wright was fairly consistent in jotting down responses and scores
as the interviews happened. Mitchell, on his own admission, made
J
.few notes as he went along. Rather, he went back after each
day's interviews were completed and filled in what he recollected
of the responses, and assigned scores based on those
recollections. Mr. Nahabedian filled in some responses and
scored some questions, but not all. It is very telling that
Mitchell did not even bother to assign scoresto a number of the
candidates. He only scored the interview reports of McElrea and
the grievor. He did not assign any scores to Craig Richard, the
other finalist granted a second interview. His explanation for
why he scored the grievor was that he was expecting a grievance.
We do not question the veracity of that very candid statement.
Indeed, from all the evidence it seems that the interviewers did
not expect the grievor'to be "in the running". The grievor must
have sensed that his interview was considered'to be a formality,
if not a farce. Since this was his fourth interview for an
equivalent position, and since he had strong beliefs about his
own qualifications for the job, he must have experienced a strong
sense of frustration. Unfortunately, that disappointment spilled
over into the interview and tainted his performance.
We are compelled to conclude that the interviews were
conducted in a highly irregular fashion. There were gross
disparities between the marks given by one interviewer and those
given by another, for the same question. .This occurred time and
time again, including in areas where the subject matter was
relatively objective and there ought to have been much closer
correspondence. Mr. Nahabedian was admittedly a novice in the
area of accounting, yet he was assigning scores to technical
questions and awarding marks that were often considerably lower
I”
than those being given by the technically knowledgeable Messrs.
Wright and Mitchell.. This can only derive from the failure on
the part of the interviewers to establish at the outset the
answers or qualities in an answer that they were looking for. If
the final scores actually produced the two most qualified
candidates, which we cannot say that they did, then the forces of
coincidence were exceptionally active on that day.
The main mark against the grievor was his perceived lack of'
communication skills. He was also faulted for not having
sufficient experience in the area of marketing and for lackin?
other private sector experience. However, it was conceded b?;
both Mitchell and Wright that'the grievor had the technical
ability to do the job.
As for marketing and other business exposure, it was also
conceded by Wright and Mitchell that a Financial Consultant
rarely has all the desirable exposure. They bemoaned the fact
that there are too few generalists in that position.
Accordingly, the grievor could be said to have certain strengths
in the accounting area and certain weaknesses in thee businc?ss
area, but that is not an indictment of his qualifications overall
as compared with most other people doing that job.
As for his communication skills, it was'wrong for the
interviewers to judge him strictly on his performance at the
.
interview. The grievor has been performing a job for this came
employer for at least ten years that requires communication
skills. It was conceded that the interviewers made no attempt to
something of a point of principle, when he was passed over for a
promotion to president in favour of an import from the parent
company. It was quite clear that he was still considered a
valuable employee of that company, and he was encouraged to stay
on as a vice-president, but it was his choice to leave.
contact the grievor's supervisor -or coworkers, and.did not
consult his personnel file, to ascertain whether his
communication skills were adequate on the job (as opposed to the
artificial setting of an interview). It was established in
evidence by virtue of an agreed statement of certain facts, that
the grievor's supervisor Mrs. Bobadilla held the grievor in high
regard. In a performance review of the grievor~ in July 1986,
Mrs. Bobadilla commented inter alia that the grievor "has
finished his orientation program in loan applications and
deserves a chance to display his multi-faceted talent." Surel?
this information would have assisted the grievor in his chances,
had the selection committee seen fitto acquire and consider it.
Garth McElrea
The incumbentGarth McElrea attended at the~hearing. and
while unrepresented by counsel, made his presence felt and
contributed where he felt it was in his interest to do so.
Mr. McElrea applied for the Financial Consultant job after a
successful and lengthy career in private business. He began as
an accountant, becoming controller, then secretary-treasurer and
ultimately vice-president and general manager of a Canadian
subsidiary of a large U.S. company. He left his last position on
After leaving his long-time employer, Mr. McElre& did some
consulting for private clients, assisting them in the
computerisation of their accounting operations. When he chanced
upon the advertisement for the job with ODC, he decided to apply.
As already noted, he scored very well and sufficiently impressed
the interviewers to be offered a second interview, and ultimately
the job.
Mr. McElrea a~lso impressed this Board as a very competent
and genial individual. Clearly, his lengthy business experience
qualified him to do the job, although consistent with the
observation that generalists are hard to find, we note that Hr.
McElrea's experience was heavily weighted on the accounting side
of the business.
However qualified Mr. McElrea might be to do the job, that
finding does not end the matter.
The Law
The relevant Article of the Collective Agreement is Ar.ticle
4.3, which provides as follows:
"4.3 In filling a vacancy, the Employer
.shall give primary consideration to
qualifications and abil'ity to perform the
required duties. Where qualifications and
ability are relatively equal, length of
continuous service shall be a consideration."
The governing
grievor's and the i
"relatively equal",
13
principle that we must apply, is that if the
ncumbent's qualifications for this job were
then the issue of seniority ought next to
have been considered. In this case, since Mr. McElrea was an
outside candidate, he had tio seniority to his credit. Given the
grievor's considerable length of continuous service, seniority
would inevitably have been determinative and the grievor wo111cl
have been entitled to the job. See for this proposition
Clipperton GSB 2554/87 (Watters) at p-18. The right to ha1.e
seniority at least considered.is a very important benefit to be
respected when the employer conducts open competitions.
In determining relative equality, management must fairly
assess whether one candidate is better qualified by a
"substantial and demonstrable margin": He Textile Workers Unio!] _._ _..~... ..,.
and Lady Galt Towels Limited (1969) 20 L.A.C. 382.' That test h:is
stood the test of time, subject to the observations of arbitrator
Ueatherill in Great Atlantic & Pacific Tea Co. of Canada Ltd.
(1979) 21 L.A.C. (2nd) 444, that the degree of margin required to
qualify as demonstrable'must depend on the particular job. F‘o I'
example, small differences might be significant in relation to a
complex task:
Thus, the question we must answer is whether or not the
employer in our caseifairly came to the conclusion that Mr.
McElrea was more qualified than Mr. Thirumalai to do the job, b)
a substantial and demonstrable margin. For this grievance to
succee.d, we must conclude on a balance of probabilities that the
process of evaluation was so deficient as to preclude a fair
assessment having been made.
The jurisprudence of this Board has highlighted a number of
factors that management ought to have considered, or procedures
that ought to have been followed. Several of these are
appropriate for consideration here:
Consultation with supervisors
It is generally considered desirable to consult a
candidate's supervisor, assuming, same is available for
consultation: see Moore GSB 1051/86 (Watters) and the cases
cited therein.
In the instant case, we are persuaded on a balance of
probabilities that the grievor's supervisor was accessible, and
had she been asked would have provided a positive assessment of
the grievor in his present job, as well as a positive opinion of
his capabilities and ripeness to do the job being competed for.
A related consideration is the failure to consult the two
Financial Consultants-with whom them grievor had worked in the'
course of his participation in the orientation program. Had they
been asked, ,Nick Zwibrycki and Art Tofano would have spoken
highly of the grievor's,efforts in the client interview and
preparation of the written submission. This assessment clearly
11
reflects on the grievor's qualifications to do the job, yet it
was not sought out even though Mitchell and Wright knew very we
that the grievor had participated in the program and had
therefore been under the scrutiny of one or more Financial
I.2
Consultants.
Personnel files
It is generally desirable to look at the candidates'
personnel files, and in the case of outside candidates to check
their references. ~See among other cases Clipperton (cited
above). In the instant case, we are not persuaded that the
, grievor's personnel file would have proved enlightening. i\S for
references, the incumbent's references'were checked, but only
after it was decided to offer him the job. There. is no reason to
believe that in this case it would have made any difference if
his references had been checked at an earlier stag‘e.
No standard answers
In order for interview questions to be marked in a
meaningful fashion, there must be a consensus among the
questioners as to what constitutes a correct or acceptable
answer. There should also be agreement as to the appropriate
marking weight to be assigned to parts of a multi-faceted
question. In the instant case, the different interviewers in
some instances gave widely differentassessments of the same
answer (e.g. ranging from a low of 4 to a high of 8 out of JOJ,
and weighted their‘answers to sub-questions differently. There
is ample evidence upon which to conclude that the numerical
scores do not represent a fair, objective basis for comparing the
candidates. This is even more so'given the failure of Mr.
Mitchell to record the answers contemporaneous with the
interviews, and the highly spotty marking practices of all the
interviewers. Thus, the information available through the
lb
interview process was not collected in a systemat.ic,
comprehensive manner and the interviews largely failed to do that
which they were designed to do, namely, to provide object.ive
assessments which could form the basis of fair comparisons.
Irrelevant considerations
It is incumbent upon the selection committee to be guided. as
much as possible by relevant considerations. This point sholuld
be obvious, but what is truly relevant is not always so obvious
much
cand i
There were a number of considerations that were given to:)
weight, in our opinion. For example, they considered the
dates""management potential" and ranked the incumbent
higher than the grievor. Perhaps the assessment is in itself
fair, considering the co~nsiderable management experience that Mr.
McElrea has had, but the job in question is not a management .iob.
The key consideration is the candidates' ability to do the job irl
question, not some other job.
There was also an open question left dangling before us,
whether or not the grievor's Indian 'accent was counted against
him. The committee members protested that it was the grievor's
rapid speech pattern and poor listener qualities that caused them
to mark him down in the area of.communication skills. We heard
about an apparent comment made some years ago by Mr. Wright to
one Mr. Muntaz Ali (a senior solicitor with ODCI, that the
grievor would likely be promoted but for his thick accent.
Counsel for the grievor did not cross-examine Mr. Wright on this
point, and he therefore had no opportunity to explain his
I ,
comment. However, the comment was testified directly to by Mr.
Ali, who gave his evidence before Mr. Wright was called as.a
witness, and therefore the employer's counsel could have asked
him in chief to explain or deny making the statement. Under the
unusual evidentiary circumstances, we believe that it is proper
to consider the statement but to do so in the most innocent l~i<ht: '
possible, which equates to giving it minimal weight. However,
considering this and all the other evidence we are left with 9
serious question as to whether the grievor's accent influerlceci
the committee, even if only subconsciously. In a multi-rllltural.
society that welcomes immigrants from foreign lands, emp:lo?r!~~
and a fortiori governments, must make a special effort to
accommodate persons with foreign accents. It would be wrong to
deny opportunities unwittingly to otherwise qualified men and
women, by failing to see beyond their accented speech.
CONCLUSIONS
On a consideration of all the evidence, we are compelled to
conclude that the selection process was fundamentally flawed and
cannot stand. The grievor was not fairly assessed by the
interviewers. From their point of view, the interview of Mr.
Thirumalai was more a courtesy to an internal applicant than-;1
serious effort to assess a potential candidate. Not only did
they not expect him to win; they (or at least one of themt
expected a grievance before the interview was even conducted!
From the grievor's point of view, he sensed correctly that
.he was not seriously "in the running". He allowed his
frustration to affect his performance at the interview. He was
not relaxed, and came across as arrogant and argumentative. He
was fed up with interviewing for the same job over and over
again, with no apparent advancement to his position. He believed
hecould do the job, but.allowed his emotions and bitterness to
impair his ability~ to sell his qualifications to the selection
committee.
As for the process itself, we have already commented on its
deficiencies. While "gut level" assessments may be quite v&id
and unimpeachable in many contexts, they are not a substitute fu[,
some objective criteria where, as here, the assessment is sub.;ec!:
to a review.
We therefore conclude that the relative qualifications of
Mr. McElrea and the grievor 'have never been objectively compared.
Had we concluded that they were relatively equal, we would ha\.e
awarded the job to the grievor based upon his lengthy senioriCy,
but despite hearing .a11 the evidence we do not consider o~ursel:-~~
to be in a good position to make that finding. In this case,
management must do so.
By the same token, had we been certain that the panel made
the correct decision, despite the flaws in the process, we would
not have felt compelled to order a rerun of the competition. We
would have concluded that there was no miscarriage of justice and
dismissed the grievance.
We are accordingly ordering that the competition for this
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job be rerun. The following guidelines must be followed:
1. The competition is to be restricted .to Garth McElrea and
the grievor.
2. The selection panel must consist of qualified persons
not including any of Messrs. Mitchell, Wright, Nahabedian or
Wood.
3. The selection panel ought to devise a set of inter\-ieri
questions and selection factors that are restricted to the
qualifications of the candidates to do this job, and the panel
.should agree in advance of the interviews as to the correct or
acceptable answers and the breakdown of marks to be awarded.
4. The panel his directed to ignore as much as is humanl?
possible the qualifications gained by Mr. McElrea while in the
subject position. In particular, they are to consider his resume
as it existed prior to his acceptance of the job in September
1986.
3. The panel is directed to turn its collecti,ve mind to the
sole question: are the two candidates relatively equal in their
qualifications to do this job,, or can it fairly be said that one
.
candidate is better qualified than the other by a substantial and
demonstrable margin. Either conclusion should be backed~up wit11
objective evidence gleaned from the interview process, and should
be reported to the two individuals involved by way of a written
communication explaining briefly the committee's reasons for
20
reaching the conclusion.
If it should turn out that the candidates are relatively
equal, i.e. that the margin if any between them is not
substantial, then the grievor is entitled to be awarded the .job
as soon as is practicable thereafter. There will be no award of
compensation for the period of time since the first competition,
since in our view the grievor is not entirely blameless for his
poor showing in that interview. We appreciate that his
frustration was genuine and perhaps even understandable. But his
attitude that he was the best candidate for the job.and shoul~l
get it, was more arrogant than merely confidenti and was clearly
off-putting to the panel-~ Thus, in our discretion, we decline to
compensate him retroactively if it turns out that he wins thr new
competition.
If in that eventuality Mr. McElrea must stand aside for the
grievor, we fully understand the disappointment that he will
experience. However, we do not believe that a man of Mr.
McElrea's integrity would want to continue in a job which he hiis
obtained unfairly at the expense of someone else. We have ever>
confidence that with minimal delay he will be successfully placed
in a position commensurate with his considerable skills and
experience.
Of course, if Mr. McElrea is found to be the superior
candidate by a substantial and demonstrable margin, then he will
retain the position. If Mr. McElrea should for any reason desire
not to enter the competition, then the grievor is to be offered
b ;. 21
the .position by default, without any interview or competition.
In the 'result, therefore, the grievance is allowed to the
extent set out in these reasons. We are grateful to both dounsei
who conducted the hearing with their customary skill and sense of
fair play.
Dated at Toronto this 1st day of November 1989.
Eric K. Slone, Vice-Chairperson
J
~~_.
J. McManus, Member
"I dissent" (Dissent to follow) -.. L. Turtle, Member