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Home My WebLink About1987-0712.Smith.89-09-11m&YES DE LA COUFiO”NE DE “ONTIRIO CQMMISSION DE SElTLEMENT REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under TNN CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLBNBNT BOARD Between: OPSEU (Smith) - and - The Crown in Right of Ontario (Ministry of Transportation & Communications) 712/87 Grievor Employer For the Grievor: For the Bmnlover: Hearinq: J. Forbes-Roberts Vice-Chairperson I. Thomson Member D. Montrose Member R. Nelson Counsel Gowling, Strathy & Henderson Barristers & Solicitors P. Young Counsel Winkler, Filion & Wakely Barristers & Solicitors May 4, 1988 DECISION 2 The instant case involves job competition #NR/86/33/RW for the position entitled Senior Construction Technician. The competition was opens to employees in the Northern region and closed on January 8. 1987. While the competition represented six (6) vacancies there was but one (1) in the Huntsville work area, and hit is only that opening with which this Board is, concerned. The successful candidate (the incumbent) was duty notified of his right to fully participate in these proceedings. It was agreed that the grievor had superior seniority rights compared to the incumbent. The relevant portion of the collective agreement is entitled Posting and Filling of Vacancies or New Positions and states in part: 4.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. Union counsel argued first that largely on the basis of previous experience the grievor, Mr. James Smith, was more qualified than the successful Huntsville area candidate, Mr. Mark Hillman. As the more qualified and more senior candidate, the former should be awarded the position outright. In the alternative the job competition was so procedurally flawed as to render it a nullity, and therefore it should be ordered rerun. Employer counsel took the position that aptitude test scores and interview results clearly revealed the incumbent to be the more qualified candidate. Further any alleged flaws in the selection procedure were so minor as to render them inconsequential. The grievor has been with the Ministry of Transportation and Communication (W.T.C.") in various capacities since 1970. The majority of that time was spent involved with the construction division. Of particular relevance to this Board is his position between 1975 and 1984. job competition the In 1975 pursuant to a grievor earned the position of Technician I, Construction. This position was also known as party chief and involved supervising survey crews, training new employees in the skills of weighing and checking materials, surveying, and occasionally performing inspection duties. In 1979 or 1980 while there was no change in job duties the position title was Senior Construction- Technician, changed to by the Union's lights the same job for which he again posted in 1987. 3 In 1984 the grievor's position was declared redundant and he transferred to the Highway equipment division as an Operator III. This was considered part of the maintenance division of the M.T.C. At approximately the same time in 1984 the incumbent's job was also declared surplus, He however, transferred to a job within the construction area and remained there until posting into the position in question. The grievor submitted his application for the job competition in a timely fashion on December 29, 1986. He was granted an interview during which his skill and ability to perform the duties were to be orally tested. The interview panel was composed of Messrs. Don Brown, Construction Manager, William Muckier, Construction Manager Huntsville, and Bernard Chiasson, Chairman of the Selection Panel. The panel members had collectively made up and weighted the interview questions. Each panel member had set questions to ask each candidate. They then picked the best answer, awarded it a lllO'V, and then marked the others accordingly. Ultimately the incumbent scored 224 points and the grievor 162 points. The grievor's first complaint regarding the results of the competition was that he was more qualified than Mr. Hillman. He felt that he had more extensive and varied experience, more years on survey, grade and concrete work. It is worthy of note that at both the interview and before this Board the grievor was most candid about his short comings as well as his strengths. Between 1979 and 1984 in his tenure as Senior Construction Technician III the emphasis had been on new road construction. The division of functions had been approximately 50% surveying and 50% inspection, with emphasis on grade work and some limited exposure to concrete. His experience with asphalt was limited and far less than Mr. Hillman's. It was the uncontradicted evidence of Employer witnesses Messrs. Chiasson and Muckier (both of whom were familiar with the grievor's work) that latterly the emphasis had shifted from new construction to repair, with an attendant shifting emphasis in importance on inspection duties and knowledge of asphalt and concrete. They testified the at the relevant time the duty split was approximately 10% surveying and 90% inspection, areas in which Mr. Hillman had more familiarity. This accounts not only for the interview questionnaire's focus on these areas but not also ,for the incumbent's superior score. We find that on the basis of their interview scores and the panel's knowledge of his previous work the grievor was not the more qualified candidate. (It is worthy of note that the grievor had no quarrel with the composition of the selection panel). i I 4 We turn now to the Union's complaints regarding the competition procedure. Mr. Smith lived approximately 50 miles from the interview site. Despite his entirely timely application it is undisputed that he received less than twenty-four (24) hours notice of his interview. This was apparently due to an error in Personnel. However, both the grievor and the Employer witnesses agreed that apologies were made for the oversight and he was offered the opportunity to re-schedule his interview for a later date. There was no suggestion that this offer was anything but genuine. The grievor however declined and elected to proceed on short notice at the initially appointed time. We therefore find that any irregularity with respect to notice period was waived. The adequacy and currency of the Job Specification ("job spec.") and the job posting were next raised. Union counsel argued that both were out of date and did not properly reflect the changes which had occurred in the job since 1984 when the grievor last occupied it (at least in title). With respect to the job spec. we would raise two (2) points. First the grievor readily agreed that he had not seen the job spec. any where near the time he applied for the competition. Second, he volunteered that it had been out of date when he was in the job himself. This is born out b.y the spec's effective date of January 1, 1980, a phenomenon hardly uncommon in many Ministries. While each aspect of a job competition procedure is important, in the present case we do not find the fact that the job spec. was out of date sufficient to nullify the competition results. Finally, we deal with the job competition posting itself. It was argued that because under the heading The Job the first of three (3) listed items dealt with surveying duties and only the third dealt with quality control and inspection of asphalt and concrete that the nature and emphasis of the job had been substantially misrepresented to the grievor's detriment. First, we fail to see how rearranging the duties could or would have enhanced the grievor's chances of success. Second, we view the format to be at worst a minor error in judgement by the form's draftsmen, and in no way sufficient to have affected the outcome, or to void the competition . ’ f 5 ._ The Rrievance is hereby dismissed. DATEn at Toronto. Ontario this l~lthday of Sqt., 19R9. - Forbes-Roberts, Vice-Chairperson 1.J. Thomson, Member D.C. Montrose, &mber