HomeMy WebLinkAbout1986-2413.Innes et al.89-03-31CQMMISSION DE
REGLEMENT
DES GRIEFS
IN THE MATTER OF AKARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPsEcl (D. Innes et al ) Grievor
-and -
The Crown in Right of Ontario
(Ministry of Correctinnal Services)
Employer
Before:
For the Grievor:
For the Emdover:
For Mr. Tom Gushue:
Hearings:
F.J. Brandt Vice-Chairperson .J.p. MCM.?mUS Member
P.A. Peckham Member
H. Sharpe
A. Ryder
Counsel
Fnwling & Henderson
Barristers and SOliCitOrS
V. Malpass
Staff Relations Branch
Human Resources Secretarjat
J . Maair
Bentley, Mcnair and Butlrus
January 29, 19RR
.?UlY
14, 1.988 Pecemher 5, 7. 1988
wcroduction
This is a grievance of Dave Innes, Jaspinder Sahota and
eaul Worford each of whom grieve the failure of the Ministry to
award them the position of Industrial Officer at the Elgin
Middlesex Detention Centre for .which they competed in a
competition. The position was awarded to a candidate Erom
outside the Public Service, Mr. Tom Gushue.
Mr. Gushue attended the proceedings and was represented by
-., counsel at t!le hearings, on July 14 and December 5 and 7th, 1988.
Facts
The position became vacant as a result of a vacancy which
arose in the spring of 1986 when the Laundry Officer, Mr. Leonard
Cook, became ill and went on a short term sick’leave. Mr.
Charles Mulder, who was responsible for supervising the laundry
operation, filled the vacancy by a series of rotational
assignments until such time as the position was .permanently
posted in October of 1986. I
Mr. Paul Fleury, now Deputy Superintendent at the Elgin
Middlesex Detention Centre, but who at the time of the
competition was the Area Personnel Administrator, was responsible
for writing the job advertisement, preparing the pre-selection
criteria, reviewing the applications and selectiny the panel that
would consider the candidates. The panel consisted of Mr.
Fleury, Mr. Charles Mulder, Assistant Superintendent-Services
responsible for supervision of the l.aundry (operation where the
f : i i (
3.
\- position Was located, and Mr. Terry Muore.
In preparing the job advertisement Mr. Fleury reviewed the
Position Specification and spoke with Mr. Jim Cassidy, the then
Superintendent and with Mr. Joiln Lockhart, the Deputy
Superintendent.
The opportunity bulletin listed the qualifications for the
position as follows: practical knpwledge of, and experience in, a
laundry operation, ability to effectively instruct and supervise
inmates/young offenders, knowledge of pertinent safety procedures
i
) and regulations, ability to exercise good judgment and tact and .
-, ability to perform minor maintenance to laundry equipment.
The job opportunity-bulletin specified that the competition
was open to all qualified applicants within 40 kilometres of the
work location. Mr. Fleury testified that it was decided to have
an “open” competition since the Ministry Was looking for a good
number of qualified applicants and that, while it was felt that
some within the institution might have the qualifications, it was
hoped that others in the .community might have qualifications
which were at least as good as those possessed by persons within
the Public Service.
Mr. Fleury stated that in determining the pre-screening
criteria he was primarily looking for candi,dates who possessed
either laundry experience or correctional experience. These
criteria were re>flected in the score sheet for the competition
which assigned 72/142 marks for Knowledge (i.e. knowledge
concerning a safe, secure and efficient laundry operation in a
correctional setting); 30/142 marks for Laundry Experience ;
?0/142 narks \-~ for Laundry Maintenance/Repair Experience; and
20/142 marks forInstructional Experience in a Laundry Setting.
Candidates were invited to submit their applications or
resumes to their Superintendent who, in turn, would forward the
applications along with an assessment of the candidate and copy
of the most recent performance appra,i sal including information
concerning attendance to the Regional Personnel Administrator.
Mr. Fleury stated that the practice of seeking an assessment from
the Superintendent was a long standing practice and was designed
to give the panel information that might be
i clarification of the resume was required.
Twelve applications were received and seven candi
from outside and five from inside the instituti
interviewed.
useful if
dates (two
on) were
The members of the panel reviewed the applications before
the interviews commenced. Each candidate was interviewed
separately. At the beginning of each interview Mr. Fleury
explalned the process that would be followed. He ~told candidates
rf- that
2
there would be a number of formal questions asked; that
candidates’ responses to the questions would .not be the sole
basis for the decision; and that experience and knowledge of the
job and other factors would be considered. Candidates were told
to relax and to tell the panel as much as they could concerning
the questions that were <asked and that their responses to the
yuestions would be written down.
At the beginning tof each interview Mr. Fleury ,asked the
candidate general questions about their experience in the areas
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1)
\- 0 f launllry experience, ttIe1r expert 1 ence I n ma 1 II t e n *a ,I c e ,a nd
repair, and their instructional experience in a laundry setting.
The answers given were written down by e,2ch of the members of the
panel.
Candidates were not provided with copies of the assessment
of the superintendent; nor “l?KC+ they informed of any of the
contents of those assessments.
Mr . Fleury conceded that the information concerning laundry
experience could have been obtained by asking the candidates to
fill out a form. However, it was decided to proceed in this way
in order to relax the candidates. It was thought that an
informal discussion concerning ‘their prior experience would
assist In that regard.
Following this initial stage of the interview the candidates
were asked specific questions, totalling eleven in number. These
were asked by different members of the panel and, in each case,
the answers were either written down on the score sheet or a
check mark was made opposite the Ideal Response set down on the
0
scoring sheet opposite the question.
0
Five of the questions related to various technical matters
concerning the operation of a laundry; four of the questions
(1;3,4,6) related to correctional action to be taken with respect
to pr.oblems involving inmates (eg. inmate searches for
contraband, inmate assaults on other inmates); one question dealt
with how the use of laundry equipment would be demonstrated to
inmates; and one question dealt generally with the procedures to
1)
\-- he taken to ensure that the
efficient.
3 II n 1-1 r y
hper.ation w,as effective <and
At the conclusion of each interview each member of the panel
independently totalled the scores for that candidate. After ~11
of the candidates had been interviewed the members of the panel
reported their scores to Mr. Fleury who added them up.
The following table sets out the scores given by each of the
members of the panel for each of the grievors and for MK. Gushue.
-e candidate: C. ~Mulder P. Fleury T. MOOKe Total
-/ T. Gushue 86 87 95 268
P. Warford 56 61 62 189
J. Sahota 52 56 5s 163
D. Innes 48 so 59 157~s
Given what the panel regarded as the clear superiority of
ML. Gushue over that of any of the other candidates, including
the grievor, the panel decided to recommend MK. Gushue for the
position.
0’ In reaching their conclus
personnel files of any of the o
i on the panel did not review the
t her candidates since they did not
.~ regard it as necessary Y:! \!i!SW of the fact that MK. Gushue had
demonstrated such superigr .;ibi!ity in the competition. Nor did
they review the assr:.,.:::c:::L ~)f the superintendent which “3 s
.attached to each of the -:..~ndidate’s application form. In short
it was determined that si:~~(?, heving regard to the outcome of the
competition, there W,liS .I significant difference between Mr.
Gushue and the others, i y. w,-: -: r, ,:, t. necessary to look at any of the
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7.
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-L- other considerations, inc1uBlniJ seniority, t t: 3 t ,111 g h t h 3 v ”
entered into the decision.
However, some information concerning prior problems that had
been experienced with Mr. Warford, while he was in the position
which was the sub jec~t of the competition, was brought to the
*attention of Mr. Fleury ,annd Mr. Moore by Mr. Mulder, who h,ad been
Mr . Warford’s supervisor.
Although the selection panel’s first recommendation was to
offer the position to Mr. Gushue it made an alternate
recommendation to conduct a new competition. Mr. Fieury
J testified that this recommendation was made in~the event that Mr.
Gushue did not accept the position. It was felt that there would
be other people in the community who would have a more desirable
level of knowledge than that which had been exhibited by any of
the other candidates.
In cross-examination it became evident that the real reason
behind the alternate recommendation was 3. concer~n that Mr.
Warford not get the position. we shall deal later with the evidence
l concerning Mr. Warford’s employment record. l Mr. Fleucy admitted that even if Mr. Warford had come
close to Mr. Gushue in the competition the panel would not have
recommended his appointment. Mr. Fleury candidly stated that Mr.
Warford “would not have been a strong candidate regardless uf how
well. he had done in the competition”. Since he did not do well
it was not necessary to deal with that issue. However, the
committee anticipated that, in the event that Mr. Gushue did not
.3ccept the position, consideration would !;ave to be given to
I
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9 awarding it to Mr. Warford, <who ranked second behind Mr. Gushue
\-
and rather than recommend that he be awarded the position the
committee instead made the alternate recommendation to hold a new
competiti~on.
In due course Mr. Gushue’s references were checked and he
was offered and accepted the position.
We turn to the evidence led by each of the grievor’s
concerning their abilitirs.and qualifications.
-0 Mr. Innes, prior to his coming to Canada in 1956, had served
-Ta5 a cook, steward
worked at various pr i
.1972 when he began w ,i
cook. While in that
and laundryman in the Merchant Navy. He
vate sector jobs in Canada as a cook until
th the MiniStKy at the St. Thomas Jail as a
position he was responsible for supervisin,g
2 inmates in the kitchen. This involved him in searching inmates
to ensure than knifes weie not taken fr.om the kitchen and in
ensuring that they were returned to their cells.
In 1977 he became a Correctional Officer at the .Elgin
0 Middlese,x Detention Centre in which capac~ity he was involved in
l the handling of inmates.
From February -July, 1979 and again from September 29
October 31, 1986, he worked in the laundry at the Elgin Middlesex
Detention Centre. In 1979 Mr. Warford was in charge of the
laundry and Mr. Innes filled in for him when he was off sick.
Around 1981 Mr. Warford went off on a long term disability and
the vacancy was posted. Mr. Innes applied .for the position at
that time but subsequently w i t hd r e w h i s application. The
until he left for reasons of illness. At this time Mr. 1 n li e c: ,
and a number of others, worked <a s a laundry~ officer on a
rotational basis, each for a period of approximately 6 weeks.
During that period he had responsibility for the cleaning,
pressing and distribution uf the laundry and for the supervision
of inmates. He was not, however, responsible for any repair of
clothing or any of the minor repairs Oi daily maintenance of the
equipment that is normally done by the laundry officer. Mr.
Mulder stated that during this period MY. Innes performed his
c duties without any problems.
When the position was’posted for a permanent replacement MY.
Innes applied for it and supplied his resume. He testified as to
the interview process and stated that at the beginning MY. Floury
asked him questions concerning his experience. In his eviden~ce in
chief he. stated that he could not recall whether or not he had
been told that -he would be graded on his responses in this
portion of the interview. On re-examination he expanded on this
to claims that he was not aware that he was being graded on this
part of the competition. He further claimed that had he been so
aware he may have done better.
As for the more “formal” questions Mr. Innes conceded that
they were generally “fair” questions (although he (disputed the
grade he had been yiven for some of his answers). However, he
felt that greater emphasis was being placed on the security
aspect of the laundry operation and that, for anyone to be able
to answer some of the questions !in parti~culJr, questions 4 and
L G), it would have been necessary to have had some experience
working in a corzectional setting. Hc thotrqtlt that the dnsuers
to some of the . questions were 111 the Stsnding orders which are
not available to people outside the institution. In an obvious
(if unstated) allegation against the integrity of Mr. Gushue and
those responsible for the conduct of the competition, he stated
that he didn’t believe that anyone who did not have such
experience could have answered these questions well unless they
had. either seen the questions beforehand OK had been “coached” in
some way.
Mr. Jaspinder Sahota is a li-tensed electrician who has been
employe-d at the Elgin Middlesex Detention Centre as an
electrician since 1980. As an electrician he has had experience
in the laundry in maintaining and repairing the equipment there.
He testified in examination in chief that he had experience
supervising inmates throughout the institution. The number of
inmates supervised would v&r,<.-- from day to d!;ly depending on what
he was ~involved in doing. On some days he had no responsibility
for supervising inmates. He estimated that on average he
supervised 2 inmates per week for a period of S-6 hours per (day.
On cross-examination it was suggested to him that the extent of
his supervision of inmates amounted on average to 1 inmate for
approximately 1 hour per week. He disagreed with that
suggestion.
COUZS;e sponsored by t!lr Mir;istry a?d recrived .3 certificate of
satisfactory completion.
Apart from the repair of machines in the laundry Mr. Sahota
had no experience working in .and running tile laundry operation.
When Mr. Cook went on 5F:i::rC %rrm leave and the opportunity to
work in the laundry on a rotational basis arose Mr. Sahota
applied to Mr. Mulder to be included among the rotation. Mr.
Mulder spoke to him ,and tcld him that it was unIikeiy that he
would be considered a part of the rotation since he was the only
qualified electrician that wa 5 on staff .and, unlike the
correctional oEEicers who were a part of the rotation and who
could be replaced tempor,ariiy by unclassified staff, that was not
possible for Mr. Sahota.
In his evidence Mr. Sahota agreed with this account but
stated that, in his conversation with Mr. Mulder, the latter had
asked him to withdraw his application since he was already “more
than qualified” to work there and that his withdrawal would ‘not
be held against him i’n t.he competition. In his evidence Mr.
Mulder stated that he co:.iI!? not recall telling Mr. Sahota that he:“’
was “more than qualified” for the posit.ion and thought it
unlikely that he would !:,;:‘e ;a id that . He +lsu conceded that it
would have been !~e?g~t,:? tz Mr. Sahota i !i the s ubsequent
competition if he had !I-~.t::: .~i%,,en an opportunity to participate in
the rotational assig:;:~?e:.:; ,.l:~ng with all the others.
When the position ‘n‘,?z permanently posted Mr. 3ahota .applied
Ear it and attended 3t the interview. The documentation
11.
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Q accompanying his application included the assessment of Mr. TV
Cassidy the Superintendent. That assessment recited that his
performance as an electrician had been satisfactory. However, it
went on to state that, although he was f:lmiliar with the repair
and maintenance of the equipment, he had “no experience in the
daily operation of the laundry” and that he “t? id not meet the
minimal qualifications” as described in the opportunity bulletin.
At’ the beginning of the interview, which Mr. Sahota
characterized as a “chat”, he mentioned that he hoped his not’ l having taken the rotation would not tje held against him to which
Mr. Mulder agreed. He testified that he was not aware at this
point that he was being graded on his responses; that he thought
that the panel was just trying to relax him.
As for the formal questions asked in the interview he agreed
generally with the evidence of Mr. Innes to the effect that sume
of the questions could not be answered by a layman who had not
had some first hand experience working in a correctional
institution. He too did not know how Mr. Gushue could have
scored as highly as he did, although he did not go so far as to
suggest that Mr. Gushue had been coached in some way.
MZ. Paul Warford has been employed in the Ontario Publi C
Service since 1972. He began with the Ministry of Health wher e
he was employed as a Cleaner at the London Psychiatric Hospital.
IIe also worked for a period of 2 l/2 years in the laundry at the
London Psychiatric Hospital where he w35 onr) of 24 employed in
a11~ the variolls phases of a laundry. During that period he had
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responsibility for “5uperv15111g” 4 patients who were engaged in
sorting clothes.
In 1977 he began to work for the Ministry of Correctional
Services at the Elgin Middlesex Detention Centre in the same
position as that which in: the subjfct of t!lese proceedings. !le
worked in that job for 4 years when he was required to go on
leave as a result of a back injury. He was off for two years and
returned as a CO 2, the position which he now occupies.
His first performance appraisal, on January 23, 1978, rated
him as satisfactory except in respect of attendance. He was off
work for 12 days OVPL a period of 10 months and had been
counselled for arriving late .3nd leaving early. In August of
1978 he was again counselled for poor attendance and a letter was
put in his file. A performance appraisal for the period December,
1, 1983 to November 30, 1985, during which time he was a
Correctional Officer gave him a satisfactory rating for all
critical skills but noted that his attendance record was still
“very much below average”.
While he was working in the laundry from 1977 to 1980 he
completed a Laundry Managers Course at the University of Guelph
where he received an average grade of 82% over s.11 and a grade of
88% in laundry management.
In the fall of 1986 he participated i n the rotational
program that had been set IUP by Mr. Mulder pending the permanent
posting of the vacancy creJted by the departure of Mr. Cook.
During that peKiOd he esperiv.nced a number of problems.
Several occurrence reports from Correctional Officers came to the
attention of Mr. Mulder. These concerned the misplacement of
clothing and the failure to deliver socks, T-.shirts and shorts to
the units. On September 16, 1986 Mr. MuIder spoke to Mr. Warford
concerning these matters and another matter concerning his
failures to show up ,for work after he had been refused a request
for a day off. Similar ,lrob!ems with items of clothing occurred
over the next 2 weeks an2 Mr. Mulder again spoke with Mr. Warford
on September 30, 1986 concerning these matters.
When the position was ;jostrd at the end cf the rotaticlnal
period Mr. Warford applied Esr it and sent in his resume.
Accompanying his application was the assessment of Mr. Cass idy,
the Superintendent in which it was confirmed that Mr. Warford had
experience working in the laundry department at the London
Psychiatr !c Hospital (although curlotisly no mention is made of
his having worked in the laundry department at t11e Elgin
?liddlesex Detention Centre from 1977 to 1980); that he had
carried out his duties as a correctional officer in a
satisfactory manner; and that he met the qualifications outlined
in the opportunity bulletin. The assessment also made reference
to the 6 week rotational assignment and stated that Mr. Warford
“was not able to carry out all the duties as expected.”
Mr. Warford, like Mr. Innes and Mr. Sahota, testified that
he was-not aware that he wa s being graded on his responses to the
quest ions being asked at the beginning of the interview. He
thought that Mr. Fleury was simply trying to put him at ease and
felt that had he been aware that this was part of the competition
hc would have rcspondcd in j w?y which would h,ave prod!lced a
that generally his answers to questions wouId affect the eventual
decision and thit experience was a relevant factor. tlowever , he
maintained that he thou:;ht the first part of the interview wii’;’
just an ” i n f 0 L ma 1 c ha t ” a :; d thought that the examination proper
began ‘when the different members of the panel !,egJn JS!?iW$
different questions. He !:ad no other complaints with rel;pect to
the rest of the interview although he did state that he was never
given any opportunity t.o respond t0
the concerns which
Ministry had over his attendance or the problems which he
been experiencing in the laundry during the rotational per
These matters were simply not raised in the interview.
the
had
od.
Like Mr. Innes and Mr. Sahota, Mr. Warford also testified
that he thought that candidates could not answer questions 3,4,,
and 6 unless they had either had some experience working in a
correctional setting or that they had been coached.
Question 3 asked ,candidates to identify what areas of the
body and clothing might conceal.contraband. The ideal responses
included hair, body openings, seams of clothing, soles of shoes;
inside socks etc. Mr. Warford conceded in cross examination th.at
most people could correctly guess a number of the responses to
this question without having had any correctional experience.
Quest ion 4 asked candidates to identify what actions they
would take if an inmate refused to be searched. The ideal
responses were to contact the shift supervisor, to recommend that
the inmate be placed in segregation until he submits to the
search, and to complete an occurrence or a misconduct report. Mr
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War f ord conceded that these responses could be made by someone
exercising “common sense” and that it took nc, corrcctinnal
inst i tuti’onal experience to be .ab?e to provide 3t le.3st s*me of
these responses.
Question 6 asked candidates what action they would take in
the event that cone inlirate lssaulted another inmate in the
laundry. The ideal responses were to notify a :hlft supervisor,
order them to stop fightirili, .lttempt to break up the fight either
alone, or if ser1ou5, whe:~: a L’ackup arrives, apyly~, first ,aid,
complete various reports (accident, occurrence, misconduct). Mr.
Warford conceded that, while it may be the case that someone
without correctional experience may not know what a “misconduct”
OK an “occurrence” report was, it needed no expertise ,to know
what to do to stop a fight..
Mr. Fleury also testified a:; to the relationship between the
answers to these questions and the possession of correctional
experience or famil~iarity with the standing orders and as to the
allegation that Mr. Giu:?!illr had beet? coac!led. He regarded t\~e
latter claim as “outrageu;ls”. He stated that !:IIP qllestions which
he prepared were kept i II I1 is custody until the day of the
interview; that not eve? YK. 3ulder saw them until that day; and
that he, personally, did II:~P: coach Mr. Gushue, whom he had never
met until the day of t!lt: ir;!crview.
With respect to the? ,;:.irstions in issue Mr. Fleury stated
that he did not interld t,; !.l;c:e questions to test. :A candidate’s
krrowledye of the st,3nL!i:.; .;r,Iers (which he did not ‘h,jve in hi:~;
C2055 examination he c;lnr:el!ed that a number of the ideal
responses to these Iquest. i ens could be found in the standing
orders. However, he %Jintained that many of them were also
matters of common sense.
On behalf of the grievor5 it was submitted that in
determining whether or not relative equality had been established
between the gr ievors and Mr. Gushue (in which case seniority
should apply) the best evidence of that relative equality is
demonstrated ability to do the particular job in question. In
that regard It Was
submitted that the abilities and
qualifications of the grievors should be assessed against the two
major components of the job, viz operation of a’ laundry and
supervision and control of inmates, and that care must be taken
not to place too much weight on the repair/maintenance function
which, it was argued, was less significant in that major repairs
were typically done by maintenance staff and only minor repairs
were done by the laundry officer.
On the factor of ability to operate a laundry it was noted
that Mr. Innes had both formal training and a number of years of
experience in operating a laundry and that he showed his ability
during the rotation.
As for Mr. Sahota it was admitted that he had no operating
experience but it was argued that he was denied .3n opportunity tn
have that experience during the rotation and at that it would be
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unfair to hold this against him when comparing his experience to
that of other candidates.
AS for Mr. Warford it was noted that he had experience
working in the laundry at the London Psychiatric Hospital and
also had 4 years of experience operating thelaundry at the Clgin
Middlesex Detention Centre as well as the experience q3 ined
during the rotation. With respect to the problems which he had
in operating the laundry it was submit ted that there was no
evidence which traced these problems to Mr. Warford and that he
* was not given any opportunity during the competition to respond
to the allegations that had been made against him.
Mr. Gushue’s laundry operation experience was not denied.
However, it was argued that, in terms of experience, there was
little to choose between any of the 4 candidates.
On the second major aspect of the job, viz, supervision and
control of inmates, it was submitted that the grievor5 had far
more experience than Mr. Gushue. Mr. Snnes had been a
Correctional Officer since 1972; Mr. Warford had 4 years of
experience with inmates in the laundry and has been a
correctional officer since his return from being off work due to
his, injury; Mr. Sahota had experience supervising inmates in the
maintenance department and has a certiEicate of Custodial
Responsibility.
Mr. Gushue on the other hand had no experience or training
in the supervision or control of inmates. it was suggested that
tlis experience in supervising sther emi’hy’es wa1s I I 0 k
transferable tt:l the supervision of inmates in respect of which
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the Ministry
employees.
1tse
19.
Counsel submitted that, given these facts, there was an onus
on the Ministry to justify its decision :lut to award the position
to one of the yrievors. Whiie the results of the competition, in
which Mr. Gushue scored mu c h better than gr ievors might
constitute that justification, counsel argued that in a number of
respects tile competition was flawed and should be discounted.
First, it was argued that the competition was administered
and marked in such a way as to favour Mr. Gushue and to prejudice
the grievora. In particular, reference was directed to the marks
awarded to Mr. Gushue and the grievors on the questions involving
inmate supervision where Mr. Gushue scored better than both Mr.
Innes and Mr. Warford .and only one mark below Mr. Sahota..
Counsel argued that these results “defied logic” given his lack
of experience and training in t,hese areas. It was suggested
that, considering that the questions required some technical
knowledge of information to be found in the standing orders, the
only credible explanation for these results was that the panel
had been very generous in its grading of Mr. Gushue or that he
had been coached. That his answers were a product of “common
sense” alone was not, in-counsel’s submission, credible.
Second, it was argued that the marks awarded for
instructional experience in a laundry setting failed to take into
account the fact that a laundry in a correctional institution is
not an ordinary laundry and requires skills, in the supervision of
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inmates which skills are different fr~om t!~ose which may be
obtained through the supervision of employees.
Third, it was argued th,>t the competition was affected by
factors outside the interview itself, The panel was i n the
pussession of t t+! recommendation of the Superintendent, which
recommendation, it wac argued, WC3.s
intended to have s 0 me
influence and must have had some influence in the marking. Thus,
with respect to both Mr. Warford and Mr. Sahota, the panel was
aware of the negative comments of Mr. Cassidy at the time that
they began their interviews of these candidates. It was
suggested that this would bias the marking.
A second “outside” factor related to the decision of the
Ministry to exclude Mr. Warford no matter how well he did in the
competition, a decision which, it was submitted, rendered the
competition quite “meaningless” for Mr. Warford. It was argued
that the Ministry could not “blackball” Mr. Warford in this way.
If it was concerned’ about his attendance or his performance in
the past it should, counsel submitted, have made that a factor in
pa ‘the competition. Having not done so and having failed to give
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Mr. Warford an opportunity to address these matters in t 11 e
competition the Ministry conducted a “sham” competition which,
counsel submitted, undermined the v.alidity of the whole
competition.
In terms of relief counsel for the Union asked the Board to
place the best qualified grievor into the position. If the Board
were to conclude that ? or more of the grievor5 were relatively
eql”“1 t;hcn the p 0 ‘; i t i 0 n s h o u 1 d g 17 t I) the 12 nr w i t h the fgr+~3te.t
in the competition it was not possible to determine who should
have the position it was suggested that the Board order a new
competition.
markedly superior to ,any of the gr irvors and that, consequently,
the greater seniority of tl:r;: grievers was not a factor to take
.”
*
into account. In his sabmi~sion, if the competition could be
considered to h.ve been fairly adminictered then the Board s,hould
be guided by its results.
It was submitted that t!iere was no evidence to support what
he characterined as the “outrageous” allegation that Mr. Gushue
had been coached. Mr. 51:shue had no prior contact with any
member of the panel ,and the only basis for the allegation lay in
an inference that the Unl.;n .inc! the gr Icvors ;o!lght to ~draw from
the fact that Mr. Gushug? h,lrl done well on the (questions involving
inmate supervision and control.
/~-
f-
In that regard it ji.is s:lbmitted that an euamination’of the
questions involving ihmat+ supervision and control revealed that
they could be well answer-2 by anyone by the xoe of common sense,
a conclusion which W,~S .;~:;.y,;rte;! by Mr, Warford himself. While
it was admitted that ::z, ,~~1 ::,i’ :> i c the ideal responses (eg. prepare an
occurrence report r,r d “~:::,-,J~1::d”ct”) reguir?d some knowledge of
the standing ocder: <or ;;: :“~i::ri:z wit-h1~n t 5 !J i ast itution, it was
noted that on those I I;:::‘- I j :’ ~. M: ‘uL;j:!,5 :? i !! I: c i, re1ati v e 1 y
8 poorly with scores of 3,3, and 2 out of 10 respectively. With
22.
respect to the arguments made concerning the ~lecision not to
award the positi.on to Mr. War-ford irrespective of his score in
the competition it was argued that the questions themselves were
not structured in such a way as to ensure that Mr. Warford score
poorly. Thus, if the Ministry wanted to “blackball”. Mr. Warford
from the outset, it could have made attendance and discipline a
factor in the competition. However, it did not do so. Those,
considerations only became a factor after the results of the
competition were known and should not, it was submitted, be
relied upon a5 a basis upon which the reliability of the
competition itself could be challenged.
Moreover, in the administration of the test Mr. Warford was
not treated any differently than the rest; He WJS asked the same
questions as the others and given the same opportun .i
everyone else to make his best case.
With respect to the claim that the Ministry had .over
in a way which
noted that the
this factor, a
the maintenance/repair functions in the laundry (
gave an undue advantage to Mr. Gushue) it was
scoring sheet only gave 20 out of 142 points to
weight which counsel argued was appropriate.
ty as
valued
Counse 1 submitted that the argument that ,instructional
experience in a laundry other than a jail laundry should be
discounted might be valid if the competition hid not tested the
ability to supervise inmates. However, there were questions on
this topic and Mr. G II :5 hue wa s t r e a ted the same as the others in
those questions.
23. 7 i
a prima facie case that the competition was defective and that
the results of the competition should stand. F!lr thermore, if the
Board were to find that the competition was defective as regards
Mr. Warford (but was in other respects a fair competition) it was
suggested that the Board should, on an assessment of the evidence
respecting Mr. Warford, conclude that, even if the competition
had been run fairly in respect to him, he would not have been
awarded the job in any event.
Counsel for the Ministry addressed the claim that Mr. Gushue
COUld not have answered the inmate supervision and control
questions unless he had been coached. She noted that Mr. Fleury
was not looking for responses from the standing orders and did
not consult the standing OKdeKS when preparing the questions.
Moreover it was noted that the grievers themselves did not make
any reference to the standing orders .in their responses to the
questions. As for the claim that Mr. Gushue had been coached it
I. was noted that Mr. Fleury had taken dare that the examination
8
questions were not revealed to anyone and stated that he,
personally, did not meet Mr. Gushue until the day of the
examination.
It was submitted that in the administration of the
examination all of the candidates were treated the same way in
that all were asked the same quest ions and II 1 1 were rated
independently by each of the members of the panel. The results
of those ratings indicated that each member of the pclnel
consistently rated Mr. Gushue higher than all of the grievers,
*
thereby attesting to the validity of the
It was submitted th.et the claim of
not appear to be advanced in argument)
that the first portion. of the intervi,
prucess.
the grievers (which did
that they were unaware
ew was a part of t.he I
examination, was simply not credible; that the grievers were made
aware that experience was .e relevant factor in the decision; and
knew or ought to have known' that when their answers were being
written down they.weKe being graded on their responses.
In summary it was submitted that the selection process was
not flawed and that since the results demonstrated that Mr.
Gushue was better tti.Jn the grievers by a "substantial and
demonstrable" margin, his'selection for the position should be
maintained. Whlle Mr. Innes was able to perform the job in a
satisfactory manner his score in the competition was lowest and
far below that of the other grievers and Mr. Gushue. Mr. Sahota
had impressive qualifications to perform those duties related to
maintenance and repair but he lacked the other qualifications for
,_ extensive experience in
8
the position. Although Hr. Warford had
the position he had a number of problems while in it indicating
that he was unable to perform the duties in a satisfactory
manner.
Thus, since Article 4.3 requires that primary consideration
he given to qualifications and ability, and since' the
competition, which counsel argued was conducted fairly, revealed
a demonstrable difference twtwcen each of the yrievors and Mr.
Gushue, the' issue of : !'..! .~3 :. I ve eq~~ality never a: nre 3 nd i t was
25.
grievers over that of Mr. Cushue
Decisioa
It should be stated at the outset that there is no eviden,ce
before the Board which supports any finding that, MI. Gushue was
coached by anyone prior to the interview. The Union’s case is
based entirely on an assumption that, si.nce Mr. Gushue had
performed well on those questions involving inmate supervision
* and control, questions which, in the Union’s opinion could only
be answered well by someone who had worked in a correctional
institution (which Mr. Gushue had not) or if the candidate had
been coached. However, Mr. Wasford agreed with the suggestion
that the questions could have been answered by the application o,f
common sense. We have examined those questions and we conclude
that they are of a nature which could be answered well bY a
candidate who did not have correctional experience and who wa 5
not familiar with the. standing orders.
We are also satisfied from the evidence that there was no
I~
8
prior contact between Mr, Fleury and Mr. Gushue in which a n
opportunity would be available for Mr. Gushue to be coached.
Consequently, we make an express finding of fact that Mr.
Gushue was not coached prior to the examination.
Second, we are not impressed by the claim of the grievers
that they were. unaware that the initial part of the interview was
an ~informal “chat” that was not a part of the formal interview.
Thry ought to have been aware that, as the responses they gave to
26.
i
questions were being written down, this was a part of the formal
l
interview. The questions related to their experience which they
knew was a facto; to be taken into consideration in the ultimate
decision.
Some of the gr ievors oluggested that they would have said
more on this part of the interview had they been aware that it
counted. Yet, they were told at the outset to tell the panel as
much as they wanted about their experience.
Third, we do not accept the claim of the Union that the
selection ~’ panel had over-valued the maintenance and repair
functions of- the job in a way which gave Mr. Gushue an advantage
over the others. These duties were included in the Opportunlty
Bulletin as one of the duties required to be performed in the
job. None of the questions ,asked in the interview focused on this
aspect of the job. Furth-rmore, the weight assigned to this part
of the job, viz, 20/142, does not appear to us to be
inappropriate.
Fourth, we do not ,acce-pt the argument that, lnsofar as Mr.
< ~. Sahota is concerned, it w.3~ not fair to
8
penalize him for his
comparative lack of e:<perience when he had been denied an
-
opportunity to participate in the rotational assignments in the
laundry. The reasons 51: excluding him were legitimate and
indicate no bad faith on the part of the Ministry. In this
respect Mr. Sahota w ,3 L: in no different position from any
candidate who applies fz:r ,Ii
job without having had as much
experience in the posit !:~::I is :zther candidates against whom he is
competing.’ His experieric,? or ?,ack thereof is ,a part of what. he
treated as having had the requisite experience when, in fact, he
has not had it. That would be unfair to other candidates who
have the experience.
Fifth, we do not consider the fact that the panel was in
possession of the assessment of the Superintendent at the time
that it conducted the interviews as fatal to the fairness and
integrity of the competition. It was suggested by counsel, in
argument, that as Mr. Cassidy was a superior of at least two of
l the three members of the panel, they would be unduly influenced
by his comments and would allow his opinion to colour their own
views of the candidate.
Mr. Fleury stated that the purpose of having this
information was to assist the panel in deciding what to do in the
event that more than one candidate demonstrated re.lative equality;
that assessment, along with other information, including
seniority; was to be considered at that juncture. As it turned
o;t it was unnecessary to consider those assessments since Mr.
Gushue had achieved a score which was markedly higher than that
of any of the other candidates including the grievers.
The evidence does not persuade us that these assessments
influenced the panellists in how they graded the candidates. It
does not appear that the assessments were studied at length
before the interviews began. Moreover, except for Mr. Warford,
the accompanying letter from Mr. Cassidy does not add any
information which was not obtained from the ‘grievor-s during the
1 part of the interview. initia
20.
8 We turn, finally, to the way in
Mr. Warford.
Once the results of the competit
evident that, among the grievers, Mr
candidate most likely to be awarded
which the Ministry treated
ion were known it became
Warford was probably the
the position, in the event
that Mr. Gushue did not .accept the offer. His experience in the
position was the longest of any of the candidates and he came
second in the competition, 26 points higher than the next ranking
grievor, Mr. Sahota. Yet the members of the panel were concerned
.*
about Mr. Warford’s ability to do the job, having regard to the
problems which he had experienced during the rotation period. As
a result of this concern the panel’s alternate recommendation of
a new competition was made.
However, ill disposed the panel may have been to having Mr,.
Warford succeed to the pos i.t ion, we are not persuaded that the
competition should be voided on this account. The evidence is
clear that Mr. Warford was not treated any differently than any
of the other candidates during the competition. He was asked the
same questions as everyone else and given the same opportunities
to impress the members of the panel with his experience and his
knowledge of the job. It was not until after the results of the
competition became known that attention was directed to his work
performance when Mr. Mulder, his supervisor, informed the panel
of the problems that he had been having.
We see nothing improper in that. Indeed, in a number of
cases before the Board competitions have been found to be flawed
where the members of the panel did not have ,access to input from
the supervisors of the candidates. Here that requirement has
been met by having Mr. Mulder sit on the panel. The Union cannot
be heard to complain where the input provided by a supervisor is
negative in nature.
Nor do we think that it is necessary in a competition
lntervlew for the Ministry to afford a candidate .an opportunity
to defend his employment record. Were that the case each
interview would have to be structured separately for each
candidate in order that the separate and unique employment
0
history of each candidate be made a part of the interview
process. The competition is intended to be a process wherein
information concerning the suitability of candidates for a
particular position is gathered in a “systematic” way. That is
why all candidates must be asked the same questions in order that
all are judged according to the same standard.
Mr. Warford’s difficulties while in the position are a
matter of record. To our knowledge none of the occurrence
reports or the counselling he received was grieved by him. We do
not believe that the competition interview should become an
8
,opportunity for a candidate to attempt to challenge the record.
Consequently, we arrive at the conclusion that~ the
competition was conducted in a fair manner and represented a n
appropriate and systematic method of assessing the qualifications
and ability of the various candidates for the position.
In terms of prior experience the only respect in which Mr.
Gushue suffers by comparison with that of the grievers is in
30.
?b e*ms of inmate supervision and control. However, insofar as
that .was tested in the forma 1 interview and insofar as Mr. Gushue
demonstrated knowledge of that function at a level superior to
both Mr. Warford and Mr. Innes and only slightly below that of
Mr. Sahota, we are satisfied that his relative lack of actual
working experience in a correctional setting, should not
disqualify him from having the position which he clearly won in
the competition.
l . In the result the grievances are dismissed and Mr. Gushue is
T confirmed in the position.
Dated at LONDON, Ont. this 31st day of Ma rc.h . 1999.
G. J. Brandt, Vice ChairpPrson
” 1 DISSENT”
J.Dh kHanus - Member
G.A; Peckham - Member