Loading...
HomeMy WebLinkAbout1986-1733.Bent.89-01-23Before: ELWHONE/TtL&HONE H16,SSS-OS9S i733/86 IN THE MATTER OF AN ARBITRATION Under TRECROWN EMPLOTRES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (D.Bent) Grievor -and - The crown in Right of Ontarlo (Ministry of Transportation) Employer 5. Fisher Vice-ChaIrperson I. Freedmar? Member - A.G. Stapleton Member For the Grievor: C. Wflkey Counsel Cornlsh fr Associates Barristers and Solicitors For the FmDlover: M. Failes Counsel Winkler, Fllion and Wakely Barristers & SOliCitOrS my 12. 1986 June 9, 198a October 7, 1986 .$ i, , DECISION This is a job competition case. The grievor was competing for tbe position of Safety Instructor Officer Trainee with the Ministry of Transportation and Communications. The incumbent was not present during the bearing as he no longer o&pied the position in question. However, the person presently occupying the job, Mr. Close, was present throughout the proceedings and although given an opportunity to participate, declined such opportunity. A job specification for the position in question is attached as an appendix. Rather than go through all the evidence involving the process, this Board feels that it would be more useful to simply list the various procedural defects claimed by the Union and to comment on each of them. The procedure defects claimed by the Union are as follows: 1. consensus scoring The evidence was clear that a large part of the decision making process by , the selection unmnittee was based on the scoring of the oral interview. There’were numerous questions asked and a score assigned to each answer. There was a typical selection committee of three people, two with technical knowledge of the job in question and one Human Resource person with apparently little or no technical knowledge. The evidence is that each member made a prebminary scoring of each question and then when the interview was finished they compared their individual scores. The evidence was also clear that each of them had the same score for each question and that this was achieved as a result of consensus scoring. The term “consensus scoring” means that the three members of the selection panel discussed and ultimately agreed on a score for each individual question. This Board finds that the method of consensus scoring is inappropriate and should not be continued~ by this or any other Ministry in the selection process. The purpose of having three individuals on a selection committee is presumably -2- so that each person can bring their own input into the decision making process. A consensus method of scoring means that the parties must agree on the scoring for each question and that raises the spectre of either a majority of two overruling the third : person each time or a dominant member of the panel exercising his superior position or knowledge over the other members. Furthermore, it leads to the possibility that there would be “horse-trading” between selection committee members. For &ample, a committee member could agree to a certain scoring on one question in exchange for another &nmittee member changing his position on another question. There is in this Board’s opinion, no advantage at all in consensus scoring over individual scoring. An issue was raised with respect to an advantage of consensus scoring in that it allows a member of the selection committee lacking technical knowledge, like a Human Resource person, to get the benefit of the superior technical knowledge of the other panel members which would not be available in an individual scoring system. However, even in an individual scoring system, the selection eommittee members could quite properly discuss their individual view points and ask questions of each other, however, when it comes down to the actual scoring, each member of the selection committee must put downbis own opinion without the necessity of reaching a consensus. Therefore, this Board would envisage a free and lively discussion among the selection committee members before individual scoring was exercised but ultimately, the member must score the candidate as he deems fit and not so as to please the other members of the selection committee. If this open approach is taken it would allow the less technically competent member of the selection committee to hear the views of his colleagues but still exercise his own judgment when it comes to scoring. Obviously, when a comparison is made between the scores of individual claimants it is appropriate and indeed proper to average the scores of the selection committee so that a proper comparison can be made. i -3- This, however, does not in any way infringe on the right of the individual member on the selection committee to express his views, it just means when you compare it to other applicant’s scores, the effect of a minority position will be diluted which is perfectly proper. Therefore, this Board finds that the use by the selection committee of a consensus scoring system was a defect. 2. Improper weighing of scoring’ For some inexplicable reason, the Ivfinistry adopted quite an unusual method of rating which was as follows. There were four categories of rating consisting 0E “Very Good”, “Good”, “Fair” and “Poor”. However, rather than have each of these catagories equal to one point, in other words, with a high of four and a low of one, the selection committee designated the point spread as follows: Very Good / 5 points Good 1 3 pomts Fair/ points Poor/O points When asked why the selection committee chose this particular rating system the answer was that that was how it had.been done in the past. Obviously, this method of weighing is inappropriate because one can assume that the difference between “Poor” and “Fair” and “Fair” and “Good” and “Good” and “Very Good” in the use of those words was meant to be equal whereas the point spread is not equal. This would distort any mathematical comparison of the scores. This is extremely important given that it is the experience of this Board that the employer sometimes slavishly follows the mathematical results of its scoring and therefore, any defect in the mathematical calculation is bound to be exaggerated when an overall comparison is made of the applicants. Therefore, the appropriate method of scoring would be to have the same point spread between each category and because this selection committee did not -4- adopt such a straightforward method of scoring, its failure to do so is a defect. It should be noted in this case that there was a point spread of 146 points between the grievor and the successful candidate which resulted in a percentage difference of 33%. Their actual scores were 433 for Mr. Kullman, the successful candidate, and 287 for Mr. Bent. There were two other people who had scores in between that of Mr. Kullman and Mr. Bent so therefore, Mr. Bent placed fourth in the scoring. 3. Reference check With Supervisor The evidence is clear that the Ministry only contacted the supervisor of the success&l candidate for a reference check and did not contact any other supervtsor. . This practice exists in spite of mtmerous previous Grievance Settlement Board decisions that say it is an essential part of the selection process to do a reference check on the candidates. This Ministry, however, seems to adopt the practice that they are only veri@ing their decision by checking with the supervisor of the successful candidate presumably to see if the reference check bears out their opinion This again emphasizes the slavish devotion that the Ministry seems to have with respect to interview scores and its failure to understand that an interview& only part of the selection process, another part being a reference check ofsll the candidates who have at least obtained interviews. It should be noted that the successful candidate, Mr. Kullman, was from outside the employ of the government and therefore, the employer had no problem in obtaining a reference check for Mr. Kullmau Therefore, this Board finds that the failure to consult Mr. Bent’s supervisor was a defect. However, it should be noted in this case that Mr. Bent’s position had very little, if anything, to do with the job for which be was applying. The job held by the grievor at the time of this competition was basically that of a lead hand in the Forestry Division of the Ministry. This job involved mostly manual work in the gardening sector of the Ministry. -5- The only relevant experience that the grievor had in relation to the job in question was that be was a member of the Health and Safety Committee. It is questionable how much knowledge Mr. Bent’s supervisor would have had with respect to Mr. Bent’s involvement in the Health and Safety Committee but still it would not have caused any administrative problem for the employer to at least consult with this gentleman because he may have been able to shed some light on Mr. Bent’s qualifications for the job in question. It should be noted, however, that Mr. Wilson, the chairman of this selection committee had some knowledge of Mr. Bent’s work as a member. of the Health and Safety Committee because he interacted with Mr. Bent on a number of occasions in his capacity as the Staff Safety Supervisor for the Central Region of the Ministry of Transportation and Communications. 4. Improper Question Regarding Medical Confidential@ One of the questions on the interview, presumably to test interpersonal and communication skills, was as follows. “Medical confidentiality in the workplace has received much attention. Please comment on the issue. n The selection committee prepared draft answers for most of the questions in the interview, however, did not prepare one for this question as they were trying to elicit the candidate’s ability to communicate effectively. However, in this Board’s opinion, the above question is inappropriate because it involves a controversial issue involving a difference in opinion between the views of the Union and Management. By asking this question, they would undoubtedly elicit the personal view of the candidate on a matter of some controversy between the employer and the Union. This obviously is inappropriate because it would tend to either intimidate the employee into giving an answer that he did not believe in or, more likely, influence the selection committee in deciding on the adequacy of the -6- candidate with respect to the opinion that he expresses rather than the manner in which he expresses it. Questions of this nature have no place whatsoever in a job selection process and therefore, the asking of such a question and the recording of its answer and the consideration of the score is a defect. 5. ~ailpre to Symmatiieally Consider and !kore Information on Application Form and Educational Background, The educational background and the work experience of the grievor was set i’ forth in considerable detail on his application form. According to the evidence the application form was considered twice, once prior to the granting of the interview and second, just before the commencement of the interview. Therefore, no serious contention can be made that the employer failed to consider the contents of the application form, however, the Union is saying that it is not enough to say that the employer read the application form but rather there has to be a systematic consideration of it. However, the Union was unable to provide the Board with a suggestion as to how matters of this nature could be scored, short of a mathematical score. It may well be that it is possible to provide a mathematical score for items such as education and _ work experience but the failure to do so is certainly not a defect. It is sticient to show that these matters were considered and given due consideration, that is not ignored and not over empbasized. The Board is satisfied that the selection committee did consider these matters and that due consideration was given in reaching their decision. 6. Over-emphasis on Mr. Kullman’s Educational Background It is clear that Mr. Kullman had outstanding educational qualifications with respect to the job. On his application form it is indicated that he recently graduated from the Safety Engineering Technology Program at Humber College and furthermore, after his degree he had worked at the Regional lv&nicipality of Waterloo as a Chemical Safety Co-Ordinator. As such, his job involved conducting field audits, researching -7- health and safety legislation, compiling reports outlining new policies and procedures involving hazardous mate&I, developing and implementing training programs and creating a data base for hazardous materials owned by the Region of Waterloo. It is hard to imagine better work and educational experience for the job applied for. In fact, that is the crux of the Union’s case. They do not dispute that Mr. Kullman’s work, background and more importantly, his educational background fuhills the requirement of the job. They say his edueationrd background far exceeds the job requirement and to ! the degree that they are in excess of the job requirement they should be ignored by the selection committee. There is no question that as a matter of law qualifications in excess of the job requirement are not to be considered by the selection committee as Section 43 talks about “quahfications and ability to perform other required duties.” Therefore, skills over and above the requirement for the required duties are not a relevant consideration. The question in this case really comes down to one of fact, ’ that is, whether or not the~educational background and the past work history of . .- Mr. Kullman is such that it exceeds the requirements to perform the job. This Board .- heard evidence. from Mr. Montgomery, who is the Senior Program Co-ordlnator of the Technology Division at Humber College. He was one of Mr. Kullman’s instructors with respect to the course that Mr. Kullman took. Mr. Montgomery explained the course, i and although it is an extensive one, it is clear that it is a community college-type course ‘x and not in any way a university equivalent and certainly not a post-graduate university equivalent. T’his course would appear to be open to anyone with the prerequisite educational qualifications to enter a community college and covers the topics that would fall into the dally duties of a person applying for the position in question. This Board finds, however, that the educational qualifications of Mr. Kullman, although impressive, do not exceed to any large measure the degree of knowledge and responsibility entailed in the position competed for. Therefore. this Board finds that in considering Mr. Kullman’s superior educational qualifications the selection committee did not err and it was appropriate and indeed proper to consider this important factor. I. Failure to Consider the Grievor’s Minishy Experience The successful candidate, Mr. Kullman, was not even employed by the government at the time he applied, however, the grievor had been in the employ of the Ministry since 1970 and therefore, it can be assumed that he was quite familiar with various Ministry policies and procedures insofar as it touched on his job responsibilities. Management decided to make this competition open to everyone and as such, they felt it was inappropriate to have questions on the interview relating to specific knowledge of Ministry policies and procedures. The Union counsel conceded that it is management’s tight to set the scope of the job search, however, having said that, the Union takes the position that one cannot ignore a component of the job that requires a knowledge of h4inistry procedures in an attempt to be fair to people outside the Provincial government end therefore, not members of the Union. There is no reference whatsoever in the job posting to the requirement of knowledge of any Ministry policies and procedures and that was a deliberate act on behalf of the selection committee because they felt to do otherwise would be unfair to outsiders. However, the job specification makes reference under Part 4 to the fact that one of the skills and knowledge that is required to be performed at full working level is “requires a thorough knowledge of Ministry policies, procedures, work practice and equipment used and relevant legislation”. The Union says that because of the inclusion of that terminology in the job description that consideration and weight should have been given to Ministry experience whether or not this appears to be fair to outsiders. This Board notes that the sentence quoted above is only one small part of the section of the job specification and that it is clear that -9- this section is found within the section entitled “Skills and knowledge required to perform job at full working level”. As this was an entry level position, it would seem that management could not expect the candidates to have all the skills listed in Part 4 because they would not be at full working level on the first day. Moreover, the reference to knowledge of Ministry policies, procedures, work practices and equipment forms only a very small part of the overall job specification. The employer’s evidence was that although they did not ask any questions on the interview which would have given an inside advantage to a Ministry employee, they stated that Mr. Bent’s employment with the Ministry was an advantage to him in that it helped to get him an interview. Although it is important that the criteria used in the selection process relate to the requirements of the job as set out in the job specification it is not necessary for every single criteria of the job specification to be given the exact mathematical equivalent in the selection process. Rather it is sufficient if there is a rough correlation between the requirements of the job as set out in the job spetication and of the criteria set~forth by the selection committee. Applying those principles to ,. the case, the Board finds that the minimal emphasis put in the job specification on knowledge of Ministry policies and procedures does not require the employer to set up the selection process so as to give, in essence, an advantage to inside Ministry employees as opposed to outsiders and that management may properly exercise this discretion to have an open competition and thereby make the selection criteria equal to all who apply. In summary this Board finds that the selection committee did not err on this particular issue. 8. Questions Too Difficult This is basically the crux of the Union’s case. The grievor states that the questions asked on the interview were too diEcult and therefore inappropriate for the -10. position. In support of this contention, the grievor produced questions from two previous competitions that he bad been involved with, (and been unsuccessful on), one for the identical position as the one in this case and another one as a Safety Instruction Officer II. Extensive time was spent both on examination and in argument pointing’out the similarities and/or differences between the questions on those previous competitions and this one along the lines that the other questions were easier and therefore, the questions on this competition were too difficult. It was emphasized that this position is a trainee position, therefore an entry one, and due consideration should be given to that factor. On the other hand, there was no evidence at all that this position involved any training, in fact, the evidence was to the contrary that the employee would.be expected to perform the duties of the job from day one. Obviously; there would be a familiarization period in which the individual would become.acquainted with Ministry policies and procedures, personnel and things of that nature but it was not expected that the person would receive formal tmining in order to perform the job. Quite frankly, this Board got the impression that the grievor based his position on the propriety of the questions on the basis of whether or not he got them right. For the ones be could not answer be consistently said they were too difficult for the position. However, a close comparison of the questions which be claimed were too difficult as opposed to the questions that he claimed were fair in the previous competition shows that they are relatively equal in the sense of overall difficulty. It is not the duty of this Board to conduct a microscopic dissection of each and every question put forward by a selection committee with respect to the degree of difficulty nor does this Board intend to do so. It appears to the Board that these questions were related to the job in question, that is, they asked questions in rough proportion to the requirements of the job and with respect to topics involved in the daily operation of the job. In fact, the - ll- grievor admitted on cross-e xamination that the issues raised in every one of those questions was part of the job in question. Therefore, this Board finds that the selection committee did not err with respect to the difficulty of the ,questions. Having said all this, it is clear that the selection process had defects within it. However, that does not automatically lead to the conclusion that either the grievor should be awarded the job or that a re-run should be held. The Union takes as it first position that the grievor should be awarded the position as it is shown that he is relatively equal. This Board has difficulty in determining that h4r. Bent is relatively equal when in fact the main submission of the Union is that selection process was so defective that a proper decision could not be made. This Board faces the same problems that the selection committee did, that .i.s, they are now being asked by the Union to make a decision based on a defective process and this Board does not feel that it is appropriate that they do so, Furthermore, the difference in the rating between the grievor and Mr. Kullman is so dramatic that it would be inappropriate in a case like this to even consider awarding the job to the grievor. -. The only possiile remedy open to the Union would be to order a,re-run of the competition However, it is not sufficient for the Union to show that there were defects. They fmtst go beyond that and show that these defects would have some effect on the outcome. The Union takes the position that once a defect has been found, a re- run should automatically be ordered unless the Board is satisfied that even with the corrected defects the parties would not be found to be relatively equal. However; the employer takes the position-that the onus is squarely upon the Union’s shoulder to show that if the defects had not occurred then the grievor would be found to be relatively equal. A review of the case law, in particular, sedore 250/83, a decision of Vice - 12 - Chairperson Delisle gives some insight into the process. In that decision the following quote is found In Marek 414/83 selection becaaise t Samuelr) tbir Bad ordered a new 5 werepenuad~ by the ‘evor that he could ver): likely emonstmte relative e jrollo~er~” 2. locedure warundeltakerL~ zt%g~ l4J that we now turn to etamme the sekction prvces under attack. At page six of the decision, the following quote is found, The grievor hat failed to persuude us that he was relamely might be P to the succ@ applicant or that he le to persuade a new panel of the same. From this it seems clear that the onus is on the Union to establish not only that the defects existed but that had the defects not occurred, that the grievor would have got the position. Although it is not articulated in the Delisle decision, it seems appropriate that the onus should simply be on the balance of probabilities. In other words, if the I Union-is able to show that there were procedural defects in the selection process then theymust show on the balance of probabilities that had those defects not occurred, the grievor would be found to be relatively equal. - If we apply that test to this case, the Board is not satisfied on a balance of j. ‘.. probabilities that the grievor is relatively equal even if the defects were cleaned up. Although the defects found by the Board are somewhat numerous and not insignificant, one must not lose sight of the fact that in general the Board found that the questions were appropriate and that the defects would not have had a significant difference in the scoring. There was a point spread of 146 points and even if the defective question was eliminated, and all the other defects corrected, it is not clear at all that the grievor would have succeeded. In fact, this Board had extensive opportunity to hear the grievor’s response to questions and they were not favourably impressed with his ability to grasp the essential aspects of the job. The grievor failed to prepare adequately for -l3- the interview and moreover, he failed to review documents and statutes that were already in his posse.ssion. Although his supervisor should have been consulted, it is unlikely that the supervisor would have amm%uted anything sign&ant to the determination of his relative equality. The scores are so significantly apart that even the improper weighing would not bring Mr. Bent the realm of relative equality. Therefore, in consideration of all the evidence . thiS Board is not satisfied that the Union is able to satisfy their omts on the balance of probabilities that had the defects not occurred the grievor would be found to have been relatively equal. Therefore, the grievance is dismked Dated at Toronto, this 23rd day of January , 1989. * . .“i,..k.)!&& A. Xapleton, yember . . ‘amon li,U Gnau Eom SAFETY INSTRUCTION OfPICClt TRAII’EC OG-5001-00 I. Y,‘. WPk ,“~.7.Pan. ONvt ctnia;:;;,‘;lrei;r;L; ~,h~-ro~g.-,~r~“:Ic~~~Iru~“,.~~~ ,MlmmDladlM,i Under the Supervision of the Regional Staff Safety Supervisor, incoabcnt will 4S.*i*: the Region Staff Safety Officers by: 1. G5: -visiting each votkplaef on D regular basis -eneuring that niniatry employees are protected from known hazards -investigating any Health and Safety eomploints -reconmending the ptovision of protective clothing end dcvieca or chang to w-k methods where omployces are at risk -inotrl.ctino erouDs of omolovecs in Pirst hid. D.D.C Keyman, hazerdoos subst; nccs; itc.- _ - -monitoring the workplace for hazardous substances, using 0 VatiCCy of complex pieces of equipment, e.g., C.O. monitor, dosimetcrs, nolee 1evc1 natec, etc. -providing blologicel monitoring of employees by conciuctin*J *xlic!wtcJ.C arranging for utine testo, X-Reys end Pulmonary function tE‘et.$ end. oleawhera. -acting aS member of lleelth and Safety Comnittce to review XCidcntZ end recommend remedial procoduccs. Promote1 lleolth end Accident Prevention Programs within tech DietriFt in Central Region by: 2. 10% -rceuorching, collecting end ovaluattng r”lcvant informatiOn -developing procedures or lesson plans -ravioving existing tzoining aide sxh as films, sltdeor CtC. -developing no” training oido P.T.“. - --- 4kiLx;Ikmw~vvqvrc4tosmfamlJabmhlU~khg*rL I--a.T- ~liunmhl~d~1 Gco2 level of oral and written co.emunication skills. thorough knovlodge OC instruction techniques and eccidcnt prcvonticn techniques. E.blllty to Carry Out invcstigotione, deal petsueeivaly Incumbent assists in conducting a cowprchcn;ivc silrety training [acc’I;rem for District and Regional Staff. _--__-_._-- . .~ ,. ,. , . r ii ‘4 4 4 5 _- 6 7 ii 9 l( 1' 6 1: 14 .-? I