HomeMy WebLinkAbout1986-0426.Burrows.88-09-213
ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES . DE
GRIEVANCE COMMISSION DE
REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 7Z8 - SUITE 2100
780, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 7Z8 - BUREAU 2700
TELEPHONE/
(4 16) 598-0688
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before :
For the Grievor:
OPSEU (John Burrows)
Grievor
and
The Crown in Right of Ontario
(Ministry of Transportation and Communications)
Employer
E.J. Ratushny
J. McManus
L.R. Turtle
Vice Chairperson
Member
Member
For the Employer:
J. Mosher
Counse 1
Gowling & Henderson
and Solicitors
M. Smeaton
Staff Relations Advisor
Human Resources Branch
Ministry of Transportation and Communications
Hearing :
October 9, 1987
January 7, 1988
January 8, 1988
DECISION
The Grievor, John Burrows, was unsuccessful in a job
competition. He claims that he should have been awarded the
position in question on the basis of article 4.3 of the
Collective Agreement which provides that where the qualifications
and ability of candidates are relatively equal, length of
previous continuous service shall be a consideration. The
employer concedes that the Grievor has far greater seniority than
the successful candidate but takes the position that their
qualifications and ability are not relatively equal so that
seniority is not a relevant factor. The Grievor also argues that
the selection process was unfair.
In a competition grievance of this nature, the Board is
not restricted to assessing the reasonableness of the employer's
decision but must go further:
to compare the relative qualifications and ability of
job applicants and, if satisfied that the employer erred,
to substitute its judgment as to relative equality for
that of the employer. (Per Swinton, at p.4 of Remark
G.S.B. 149/77).
In other words, this Board must determine whether the management
decision to award the position to Kevin Fidler rather than to
John Burrows was correct. Mr. Fidler was present throughout the
proceedings, was entitled to participate and testified as a
witness .
In assessing equality", this Board adopts the
following observation of Vice-Chairman Draper:
There is no definitive rule of which we are aware, no
specific percentage difference for example, according to
which relative equality
is to be determined. The view
found in a number of arbitral decisions is that if the
difference by
which one applicant is better qualified
than another is less than substantial and demonstrable,
they are relatively equally qualified. (at pp. 5-6 of
Worsely G.S.B. 347/81).
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However, it is also important to bear in mind that the relative
qualifications and ability of the candidates must be assessed in
relation to the position in question as described in the job
posting and position specifications. In other words, we
interpret article 4.3 as creating a seniority right where two
candidates are relatively equally qualified to perform "the
required duties'' of the vacant position. It does not contemplate
the elimination of that right through a consideration of
abilities and qualifications which transcend the requirements of
that position.
The Grievor has been employed by the Ministry of
Transportation and Communications since 1971. He began as a
caretaker and, after two years, transferred to a stock room as a
''Clerk 2 - Supply" where he issued parts and kept records of
inventory. After almost ten years he returned to manual labour
in order to be working closer to his home. This involved highway
patching and repair work, grass maintenance and the posting of
signs. In 1982, he was promoted to Highway Equipment Operator 1
as a result of the retirement of a senior employee. He continued
in that capacity throughout the competition which is the subject
of this grievance.
In the H.E.O.1 category, the Grievor's work consisted of
operating Type A equipment in the summer and acting as "wingman"
in the winter. A wingman accompanies the driver of larger snow
plough equipment and operates the plough and acts
as a safety
observer while the driver operates the vehicle. During more than
two years prior to the competition, he acted as a "control clerk"
or "dispatcher" rather than a wingman. The dispatcher, on
instructions from the patroller", arranges for
sand and
salt to be distributed to various locations. He also maintains a
log of what has been allocated and the location of equipment
which has been assigned for duty. (The night patroller travels
through an area, monitors adverse weather and road conditions,
and gives instructions as to the appropriate remedial action,
such as the deployment of equipment and personnel.)
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The Grievor, Mr. Burrows, essentially followed the normal
pattern of starting as a manual worker and, with experience and
familiarity with. equipment and operations, progressing to a
higher level . However, re-classification does not occur
automatically with greater qualifications. There must be a need
for the classification in question within the particular work
group .
The successful candidate, Mr. Fidler, began working with
the Ministry in 1979 and became a classified employee in 1981.
He started as a wingman in the winter and did highway patching in
the summer. In 1981, he was hired at the H.E.0.2 level and drove
a snow plough in the winter and tractors and other vehicles in
the summer. During the four summers prior to the competition, he
was an Acting General Foreman #1, with responsibility for
monitoring the work of independent highway maintenance
contractors. He was also called upon, occasionally, to act as a
night patroller.
The Job Opportunity Bulletin which was posted describes
the position as ''Patrol Operator B'' with a classification of
"Highway Equipment Operator 3". The duties are described as
follows :
To operate and maintain "Type A" equipment in summer and
night patrol duties in winter for a total at least 70% of
year's working time. Labouring duties as assigned.
The essential or "must have" qualifications are listed as:
Ability to successfully complete H.E.0.3 tests on
safety, road tests, traffic driving aptitude, general
maintenance and Ministry's test
on operations and running
maintenance
.
Must be in possession of.or ability to obtain a Class D
or better driver's license.
Must have successfully passed or have ability to pass
the Winter Maintenance (Night Patroller)
Course.
The desirable or "should have'' qualifications are listed as:
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- Acceptable driving record.
- Ability to supervise labourers or other assistants.
Mr. Burrows submitted a written application dated April 18, 1986
and subsequently received an oral interview.
We will review the specific criteria referred to in the
job posting under the following headings:
1. Driver's License and Record;
2. The H.E.0.3 Tests;
3. The Night Patroller Course;
4. Supervision of Assistants.
We will then consider the more general duties established by the
position specification under:
5.
6.
Labour Duties;
Night Patrol Duties.
There was no challenge to the bona fides of the criteria
established for the position.
1. Driver's License and Record
The evidence indicated that both the Grievor, Mr.
Burrows, and the successful applicant, Mr. Fidler, were in
possession of a Class D driver's license. Both had more than
acceptable driving records. (Both
were also qualified and
experienced in operating and maintaining Type A equipment.
2. The H.E.0.3 Tests
On his application for employment, Mr. Fidler indicated
taht he had successfully completed each of the specific tests
indicated in the job posting but at the H.E.0.2 level. Mr.
Burrows did not refer to the specific tests but expressed the
feeling that, based on his experience, he had the ability to pass
the required H.E.0.3 tests. He testified that he thought that
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he had completed some tests at the H.E.0.2 level but could not be
specific. He had assumed that the employer would simply refer to
his personnel file to determine which courses he had completed.
In our view, there is only a marginal difference between
the two candidates in relation to the H.E.0,3 tests. Mr. Fidler
was more precise in indicating that he had successfully completed
all of the required tests at the level directly below the H.E.O.
3 level. However, the evidence suggested taht the tests were not
very difficult and there is no reason to believe that Mr. Burrows
would not be able to pass these tests, bearing in mind his
experience and other qualifications. Indeed, his ability to pass
these tests was conceded by the employer.
3. The Night Patroller Course
At the time of the competition, Mr. Fidler had already
passed the Night Patroller course. Mr. Burrows had not. The
evidence indicated that this
was a two-day course consisting of
slide presentations, lectures and a written test. The subject
matter deals mainly with the effect of different weather
conditions upon the operation of different equipment. Once more,
the employer conceded that Mr. Burrows had the ability to pass
this course. In fact, not long after the competition in
question, Mr. Burrows did pass this course.
4. Supervision of Assistants
The job posting describes this "should have"
qualification as the: "Ability to supervise labourers or other
assistants? This appears to be related to the category of
duties described as "Labouring duties as assigned", In the
absence of further elabolation, we interpret this requirement as
being limited in scope to occasional supervision of small numbers
of persons.
Mr .
room in the
Burrows testified that while he worked in the stock
mid-seventies, he supervised student employees for
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four summers. He would show them how to take inventory and
control stock, assign them duties and monitor their performance.
After he returned to manual labour, he would transport employees
from the patrol yard to work-sites. For example, he would take a
crew of students with grass mowing equipment to an area where
grass was to be cut. As a manual
occasionally might be assigned a helper.
would have the responsibility to ensure
properly so that a supervisory aspect was
position specification for Mr. Burrows
labourer, Mr. Burrows
In these situations, he
that the job was done
involved . The current
state that he "May be
required to act as sub-foreman in the absence of the Patrolman".
However, he had never been assigned this responsibility since
there were always people with greater experience and seniority
available to assume this role.
Mr. Burrows testified that he had the ability to
supervise. He felt that the ability to get along with people and
common sense were necessary to proper supervision and that he
possessed these qualities. He displayed some sensitivity to the
supervisory role in suggesting that it did not simply involve
"telling" people to do things but also "asking" them and
"helping"
them to carry out their assignments.
Mr. Fidler has had considerably more supervisory
experience and responsibility than Mr. Burrows. These are
discussed in greater detail under the next heading. However,
with respect to the ability "to supervise labourers
or other
assistants" we do not see a significant difference in their
qualifications or ability.
As indicated earlier, this criteria
appears to be incidentally related to the labouring duties of the
position in question. Mr. Burrows is currently in a position
where
he might be required to act as a sub-foreman, even though
he has not actually done so. We agree with his testimony that he
has the common sense, ability to get along with people and
experience to fulfil this limited requirement.
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5. Labour Duties
It is apparent that both Mr. Burrows and Mr. Fidler have
satisfied all of the "must have" and "should have" criteria
listed in the job posting. The next step is to examine the
position specification.
It has been pointed out that the position which Mr.
Burrows currently holds, which is classified at the H.E.O.l
level, includes as "auxiliary duties" the possible requirement of
acting "as sub-foreman in the absence of the Patroller". The
next two positions at the H.E.0.2 and H.E.0.3 levels add to that
the possible requirement ''to supervise and direct a group of
labourers as assigned". This suggests a higher degree of
supervisory responsibility than acting as sub-foreman and perhaps
a higher degree than that suggested by the job posting.
If it does involve the supervision of large numbers of
persons in more demanding assignments,
Mr. Fidler s
qualifications would provide a significant advantage in his
favour. However, no evidence was presented as to what this extra
degree of supervision might entail and we have not taken it into
account
6. Night Patrol Duties
Although the duties of night patroller constitute only
35% of the duties of the position in question, they are by far
the most demanding in terms of responsibility and skills.
The responsibilities of a "Night Patroller" are described
in the position specification
for a Patrol Operator B - Highway
Equipment Operator 3 as follows:
patrols specified patrol area frequently visually
inspects road conditions. Using mobile radio orders out
snow plough or sanding crews as required. Prepares
reports of shift operations.
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Further evidence about the nature of this position was provided
by George Allan, who is the Area Patrol Supervisor for the
district in which vacancy in question arose.
Mr. Allan was employed by the Ministry in 1966 and
progressively worked his way through the H.E.O.1, H.E.0.2 and
H.E.0.3 levels to Patrol Supervisor and, finally, Area Patrol
Supervisor. He described the night patroller's basic
responsibility as keeping the highways as safe as possible during
adverse weather conditions.
He considered the most important
qualification to be the ability to assess weather conditions
based upon past experience. There is no simple calculation which
can be made as to what materials should be placed on a road in a
particular situation. There are guidelines but each storm has
its own distinct characteristics and other factors such as
traffic volume must be taken into account. Time is also a factor
since the job must be done as quickly as possible. In general,
the night patroller has overall direct supervisory responsibility
for the deployment of personnel, equipment and materials in
response to unsafe weather or other driving conditions. He must
remain under pressure since the consequences of unsafe
driving conditions can be severe.
Thus the position requires general supervisory
responsibility and skills which go beyond the supervision of
"labourers or other assistants" . In this respect, Mr. Fidler s
experience is clearly superior to that of Mr. Burrows. During
the four summers prior to the competition Mr. Fidler served as
"Acting General Foreman or "Head Inspector" in relation to
hot mix road patching contracts. This is an onerous
responsibility involving' the direct supervision of contract work
which is being performed on the highways. In this role, Mr.
Fidler had to ensure that the fulfilled the specific
requirements of the contract according to certain standards of
quality. He supervised the contractors' equipment operators and
labourers as well as his own assistants.
-9-
In addition, safety factors would have to be considered.
For example, if work operations were about to commence and it
started to rain slightly, he would have to decide whether the
weather and traffic conditions permitted the work to continue or
whether the equipment should be removed in order to avoid a
potential ten-car collision. There is nothing in the work
experience of Mr. Burrows which matches this degree of
supervisory and decision-making responsibility.
Mr. Fidler was also at an advantage in terms of
experience because of his classification as an H.E.0.2 while Mr.
Burrows was at the H.E.O.l level. The position specifications
related to an H.E.0.2 expressly include night patroller duties
but these are not within the specifications of an H.E.O.l. In
practice, an H.E.0.2 will only be assigned this responsibility
for a short period of time or when there is a vacancy on a shift.
Mr. Fidler had, in fact, acted as a night patroller on a few
occasions while Mr. Burrows had never done so.
Mr. Fidler had also worked as a snow plough operator,
which he was entitled to do as an H.E.0.2. Mr. Burrows could not
do so since a snow plough is classified as Type B equipment which
is beyond the ambit
of the H.E.O.1 classification. Moreover, at
the time, Mr. Burrows did not have a license to operate this type
of equipment although the evidence suggested that he would be
capable of obtaining such a license. Mr. Burrows' absence of
experience in relation to the actual operation of a snow plough
was mitigated by his experience in driving a truck of the same
nature as the one to which ploughs are attached for
snow-ploughing purposes. He also had observed highway operations
from his position as a wingman and gained some familiarity with
the night patroller's role
as the dispatcher who receives
instructions and relays them to the operators who are to carry
them out. Mr. Fidler has also acted as a wingman and as a
dispatcher earlier in his career.
.-
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Mr. Fidler's experience as a night patroller and snow
plough operator was not available to Mr. Burrows because he
is at
the H.E.O.l level rather than at the H.E.0.2 level. Is it unfair
to take this experience into account? In our view, this
differential experience is appropriate for consideration,
particularly where it flows from a logical progression through
levels of classification. There is nothing to preclude Mr.
Burrows moving directly from the H.E.O.1 to the H.E.0.3 level but
that should not prevent the employer from weighing the experience
of another candidate which was gained at the H.E.0.2 level. This
actual experience is another factor rendering Mr. Fidler more
qualified than Mr. Burrows to carry out the duties of night
patroller
.
7. The Selection Process
It was argued on behalf of the Grievor that the selection
process was unfair
for the following reasons:
Too great a reliance was placed upon the interview
The panel members did not individually rate the answers
Supervisory ability was not adequately assessed.
Each will be addressed in turn.
results
of the applicants;
The Interview Results
We agree with the Grievor's submission that interview
results should not form the sole basis for assessing the
qualifications of applicants. The personnel files should be
reviewed and considered and supervisors should be consulted.
However, in this case, the files of both Mr. Burrows and Mr.
Fidler were reviewed by each member of the selection
panel and subsequently discussed by all three. One of the
panelists consulted the supervisors, took notes of these
discussions and reported orally to the other panelists.
It was also suggested that inadequate weight was given to
these sources. The decision was reached on the basis of 90%
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being allocated to the interview results and only 10% to the
files and supervisors' reports. The latter were assessed as
"Good" for both Mr. Burrows and Mr. Fidler as well as for a third
applicant who rated far lower on the interview results. In the
absence
of unusual circumstances, the personnel files and
comments of supervisors reports are not likely to be a fertile
source for assessing the relative merits of applicants. Rather,
they tend to provide a threshold indication of suitability. That
is illustrated by the identical rating
of all three applicants in
this respect with a wide variation in their interview results
ranging from scores of 660 to 884 to 1048. In these
circumstances, it has not been established that the weight given
to the personnel files and comments of supervisors was unfair.
With respect to the interview, Mr. Burrows received a
weighted score of 884 while Mr. Fidler received a score of 1048.
However, Mr. Burrows had received a score of zero for the second
of the nine questions in the first part.
He testified that he
was nervous and was capable of providing an answer later but did
not attempt
to do so. If this question and score were eliminated
completely, Mr. Burrows would continue to have a weighted score
of 884. If Mr. Fidler's weakest answer and score were also
eliminated, his weighted score would be reduced to 998. In our
view, this still indicates a substantial difference between the
applicants.
The Rating of Answers
The Grievor took the position that each of the panel
members did not record an individual score for each of the
questions. It was argued that this defeated the very purpose of
having more than one on the panel. However, the evidence
of one of the panelists was that each panelist did form an
independent rating
in relation to each question. During the
meeting following the interview, each panelist, in turn, would
express his rating for a particular question. Discussion would
follow and a consensus would be reached as to what score should
be assigned for that question and answer. In these
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circumstances, we are not satisfied that the method of rating
answers was unfair.
Assessment of Supervisory Ability
It was argued on behalf of the Grievor that, in view of
the emphasis placed upon the importance of supervisory ability by
the employer
, the interview questions were inadequate €or this
purpose. It was suggested that, of the twelve questions, only
the three which dealt with interpersonal skills could be said to
be related to supervisory ability. It was pointed out that Mr.
Burrows received scores of 8, 10 and 10 on these questions while
Mr. Fidler received scores of 8, 8 and 10. We consider this
difference to be marginal.
Moreover, this approach treats supervisory responsibility
in the narrower sense of direct supervision over individual
persons. It does not take into account the general supervisory
responsibility of a night patroller to deal with general
operations or particular emergencies. Two of the first nine
questions provide opportunities to demonstrate an understanding
of these responsibilities. One involves the appropriate response
to a two-vehicle accident which is blocking one lane of a
highway. The other involves a description of the
responsibilities of
a night patroller . On these two questions ,
Mr. Fidler received scores of 10 and 10 while Mr. Burrows
received scores
of 6 and 8. While the other questions were more
technical
in nature they appear to be directly related to the
duties of the position in question.
Conclusion
The Board is satisfied that the selection procedure in
this case was generally fair and free from bias and
discrimination. The interview questions permitted a proper
comparison of the qualifications and abilities of each of the
candidates. The heavy reliance on the interview questions
actually operated in favour of the Grievor since it did not
include a consideration of Mr. Fidler's general supervisory
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experience. Nor did it include consideration of his actual
experience as a night patroller or as a snow plough operator.
These are also relevant considerations which indicate that Mr.
Fidler was better qualified than Mr. Burrows for the position in
question. In conclusion, the Grievor has not satisfied the Board
that his qualifications and ability are relatively equal to those
of the successful applicant and the grievance is dismissed.
DATED at Ottawa this 21st day of September, 1988.
Ed Ratushny, Vice- Chairperson
John McManus. Member
L.R. Turtle, Member