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HomeMy WebLinkAbout1987-0745.Klonowski and Addison.90-02-02745/87, 800/87 IN THE MATTER OF AN ARBITRATION Under TEE CROWN ENPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (J. Klonowski and J. Addison) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: A. Barrett Vice-Chairperson J. McManus ,Member P. Camp Member For the Grievor: M. Ruby Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: G. Lee Senior Staff Relations Officer Staff Relations Branch Ministry of Correctional Services Hearing: March 7. 1988 - ^ i i .? .- ‘ \ - DECISION -___- This is a job competition grievance filed by two grievors who were pre-screened out of a competition and thereby denied an interview and examination which they say would have given them an opportunity to show that their qualifications and abilities for the job were relatively equal to the four encumbents selected. One of the four encumbents, Mr. Cheeseman, attended and participated at the hearing. It was agreed by Counsel that we should proceed with this grievance in a two-step procedure as outlined in G.S.B. 256/82 (Borecki). First we should determine whether the employer acted improperly in denying the grievor6 an interview, with the onus on the employer to show that it acted properly. If it acted properly the case will be over; if it acted improperly the Board will then have to consider the relative equality of the candidates and the appropriate remedy. Article 4.3 of the Collective Agreement governs the job competition criteria and is set out below: "Article 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 relaively equal, length of continuous service shall be a consideration". , ,.,..-..___ _,_-___,_ _.~_ _... _-_-... .,-._-.- .I . . -2- \ The job posting in, question was forfour openings in the Correctional Officer 3 category. The job posting is set out below: Applications are invited for :ASSISTANT TO THE UNIT SUPERVISOR the position of (4 positions) Classification :CORRECTIONAL OFFICER 3 I Salary Schedule Location :$14.60 - $15.40 per hour : 4,l :Maplehurst Correctional'Centre Milton Responsibilities: As Assistant to the Unit Supervisor the successful candidate will ensure the correctional care and control of adult inmates on an assigned shift in an assigned area of the institution and provide direction to subordinate correctional officers. Note: Successful candidate(s) may be required to rotate through all C.O.3 positions in the Maplehurst Correctional Centre. Qualification Criteria: Demonstrated satisfactory and significant experience as a Correctional Officer and completion of Ministry in- service training programs. Working knowledge of relevant legislation, policies and procedures; sound knowledge of inmate population moods; ability to communicate effectively both orally and in writing; supervisory ability; supervisory experience in a correctional environment an asset; ability to meet Ministry medical and physical standards; satisfactory work performance including attendance. Note: Candidates will be required to complete a written examination 1 as part of the screening process. Short-listing will be based on the criteria noted above and the results of the examination. The examinatio- will be held during the week of March 2, 1987 and interviews will be conducted during the week of March 16, 1987. Area of Search: Restricted to classified staff of Institutions in the Central Region, Ministry of Correctional Services. Qualified candidates are invited to submit a complete application/ resume with covering letter to their Superintendent not later than February 10, 1987. Superintendents are requested to forward applications, with a copy of the latest performance planning and review, and Superintendent's assessment not later than February 17, 1987 to: Mr. E. J. Anthony Regional Personnel Administrator (C) Ministry of Correctional Services 6711 Mississauga Road South, Suite 406 Mississauga. Ontario LSN 2W3 POSTING DATE: January 28, 1987 CLOSING DATE: February 10, 1987 .i ., -3- At issue are the pre-screening criteria. Mr. Du Cheneau, the Superintendent of Maplehurst since May 1986, testified that 29 qualified Correctional Officers 2 applied for the four jobs and that it was not practical to interview and examine all of them. In consultation with the Deputy Superintendent and a Personnel Representative, Mr. Du Cheneau created two pre-screening criteria to eliminate potential contenders. Candidates were screened out from interviews on two grounds: 1. If they had less than one year classified service or less than two years total full-time service (classified or unclassified) and 2. If they had at or above both: 8 days absence and 6 occurrences of absence for the calendar year 1986. Of the 29 original candidates, one withdrew from the competition, 3 were scree~ned out for insufficient service, and 9 were excluded for not meeting theattendance criteria. The - grievors fell into this latter category for exclusion. One contender, Mr. Cheeseman, would have been excluded for attendance ; but was granted an interview and examination asth.e..result of the settlement of an earlier grievance whereby he was guaranteed an opportunity to write the examination in this competition. Mr. Du Cheneau said that the basis of determining the attendance criteria was the Maplehurst average absentee rate for correctional employees, excluding long-termers who are on long-term ,; income protection. The average was 7 days absent over 5 occurrences ,, “. i -4- ‘. for the calendar year 1986. Accordingly, 8 days.absence spread over 6 occurrences was considered to be unacceptable., Mr. Du Cheneau testified that there is an Attendance Review Committee in place at the Institution which reviews everybody's attendance at least yearly. Attendance is also addressed in the employee's performance appraisal performed yearly, Anyone who is above average in absences has that fact pointed out to him or her, in writing, and further action may or may not be taken. The Superintendent assumed in allcases that the absences were legitimate and made no enquiries into the reasons for them. Mr. Du Cheneau said that he.perceived the ability to be at work regularly as part of an employe& ability to perform the job,and a necessary qualification for the job. There is only one C.O. 3 on each unit on each shift and he or she is the first line of supervision in that unit. Not only should the supervisor be a role model for the C.0.2'~ and C.D.l!s under his supervision, but he or she must provide continuity of supervision with the staff and inmates. Single day absences are the most problematic because someone must replace the C.O. 3 on an ad hoc basis and this is not always a satisfactory solution. While it is admitted that.both grievors fell below the 8 and 6 absence criteria they~say that such a rigid rule for exclusion is unfair and does not give proper weight to their other abilities and qualificaions. They also complain that .i . -5- these pre-screening criteria were not known to potential competitors and should have been clearly specified in the job posting if they were meant to be exclusionary. In addition, the grievors say that the note in the job posting stating: "Candidates will be required to complete a written examination as part of the screening process" seemed to indicate that all candidates would be entitled to write the examination. Mr. Du Cheneau admits that the job posting may have been ambiguous with respect to the issue of who could write examinations, and further admitted in his 14 years prior experience as Superintendent and Assistant Superintendent at 13 different institutions, he has used different attendance criteria to determine unacceptable absentee levels. On occasion he has used Ministry-wide averages or Institution averages but in this particular case he was relying on a Grievance Settlement Board decision (which was not produced to us) suggesting that only the averages for Correctional Officers should be mused. That is what he did in this case. As was stated in the Borecki case cited above: "In conducting a job competition, an employer can not be required to interview all the applicants, regardless of their suitability. When numerous applications come forward, as is common in the public service with its large number of employees, questions of efficiency and cost may require some screening of applications. At times, only those meeting the basic qualifications may be considered. Of course, these qualifications must be reasonably related to the job in question. At other times, the pool of apparently qualified applicants -6- ’ may be so large that a ranking of the most qualified will have to occur and only those with the highest scores will be called for an interview and~further consideration. The ranking, again, must be reasonable, in the sense that each candidate's qualifications are reasonably evaluated. Failure to interview an employee with greater seniority than the successful candidate may well lead to a grievance, with the senior employee arguing that he is relatively equal." In this case there was a large pool of apparently qualified applicants, all C.O.~?S, and it was reasonable for the employer to pre-screen some of those applicants. The experience and attendance criteria used were not discriminatory in that they were applied equally 'to all applicants (except for Mr. Cheeseman who was an exceptional case). Another Grievance Settlement Board decision No. 592/83 (Riddock) dealt with a very similar situation to the case at hand. In that~case the grievor wasdenied an interview for the C.O. 3 position based on his poor- attendance record. There the ,~ grievor had 53.5 days absence in one year and it was-found as' a fact that at the time of the posting absenteeism had attained chronic proportions at the Thunder Bay Correctienal Centre, :~ where the.job was posted. The job posting in that case, as in the present case, alerted competitors to the fact that satisfactory attendance was considered a qualification criterion and the board decided that "in the absence of medical evidence to the contrary, the employer was justified in drawing the inference that the grievor's generally unacceptable absenteeism -l- record would likely continue in the future." Subsequent to the hearing in this matter a decision of this Board directly relevant to this issue was brought to our attention. The Maloney case No. 1940/87 was released July 4, 1988. We advised the parties we would take this case into consideration and invited written argument, which we have received and reviewed. The Malonev case is similar to ours factually in that an applicant for a C. 0. 3 position was pre-screened out of the competition due to above-average absences during an 18 month period preceding the competition. In fact Mr. Maloney had significant absences due to a chronic knee condition which had been rectified surgically. He produced evidence along with his application indicating that prior absences were due to the knee problem and that the knee problem was now corrected. At page 6 of the Maloney decision the Board found as follows: "Firstly, attendance must be considered in relation to 'the job for which the vacancy occurs. In some cases, it may be that an employee's attendance record prior to the posting will demonstrate a pattern of absenteeism from which it L>an be inferred that it is unlikely that the employee wxll be in a position to provide regular - 8- attendance in the future. In other cases, however, past absenteeism will not be an accurate reflection the employee's prospects for future attendances as where a particular illness or disability has been of successfully treated. Standing alone, therefore, past absenteeism is not conclusive of the likelihood of regular attendance in the future. Secondly, by applying a formula as the Employer did in this case, the ability of an applicant to obtain an interview may depend entirely upon the level of health of his fellow employees in the period in which average attendance is considered. Given the variations in rates of absenteeism, an employee may also be eligible for an interview at one point in time and not in another, although there may have been no change in his individual attendance record. Further, as acknowledged by Mr. Ross, had the grievor been absent for a total of 132 days on one occasion, he would have been provided with an opportunity to take the written examination. Had another applicant been absent for a total of 14 days on 9 occasions, he would no longer have been considered for the position. This, however, would not appear to serve the Employer's interest in ensuring that the successful applicant for the position of Senior Shift Officer is able'to attend work on a regular basis. . . . There is authority for the proposition that an employer need not interview all applicants for a posted vacancy. If an application is to rejected, however, this must be done on the basis of a proper assessment of the employee's qualifications. In this case, the Employer screened applicants solely by reference to average attendance at Burtch Correctional Centre in the period of approximately 18 months prior to the posting. For the reasons set out, we do not find the application of such a formula to be an appropriate screening mechanism. In the result, we find that the Employer improperly rejected the Grievor's application for the position in question and we direct the Employer to allow the Grievor to complete the application process which is the remedy sought by the union. The Board shall remain seized for purposes of implementation of this award and ultimately to hear the merits of Mr. Maloney's grievance in the event that this becomes necessary." -9- We agree with the finding in Maloney. These grievances are distinguishable on their facts, however, in that each grievor had been advised in his most recent performance planning and review appraisal that his attendance was unacceptable. The job posting indicated that "satisfactory work performance including attendance".was a qualification criterion. The job posting informed them that short listing would be based on the qualification criteria. Neither grievor submitted with his application any documentation to suggest that his past attendance level was an anomaly and unlikely to continue in the future. In fact, Mr. Addison testified at the hearing that his absences were due to flu, coughs and colds and the like; nothing exceptional. In the absence of any evidence to the contrary, the employer has the right to assume from an above-average absentee record such as this that the applicant for a promotion has an above-average susceptibility to these minor illnesses and will likely have the same susceptibility in the future. Once it is accepted, as it has been by this Board many times in the past, that the ability to maintain regular attendance is a relevant criterion in assessing qualifications, then in our view the onus shifts to a job applicant to show why his past attendance record is not an accurate reflection of his - 10 - ability to maintain regular attendance, in the future. Any evidence adduced by a job applicant, of course, must be considered by the selection committee. In our view the Maloney case stands for the proposition that the employer cannot use a rigid attendance formula based on averages to pre-screen applicants for job competitions when there is evidence to the contrary suggesting that the past attendance record is not truly reflective of an ability to maintain regular attendance in the future. We do not find the case authority for the proposition that it is improper to use average attendance of correctional officers similarly situated as a suitable comparison base from which to judge an individual's attendance record. This is in line with the Riddock decision cited above, wherein it was stated at page 9: "This Board is of the view that in the spring and summer of 1983, in the absence of medical evidence to the contrary, the employer was justified in drawing the inference that the Grievor's generally unacceptable absenteeism record would likely continue in the future". An employer does not know until it posts a job how many qualified applicants it will have. The more qualified applicants it has the higher it can set its pre-screening standards to reduce the numbers who must be interviewed and examined. Accordingly, it is reasonable that the pre-screening - 11 - criteria are set after the job posting is closed and not set out in the job posting itself. It is understandable that the applicants would like to know in advance what pre-screening criteria will be applied; first of all so that they can know whether or not it is worth applying, and secondly, so that the union can launch a grievance if it feels that the pre-screening criteria are unfair or unreasonable and not related to the job. Nevertheless, to tie the hands of management by requiring the employer to set out its pre-screening criteria in advance of. the closing of the job competition would be to tie management's hands unduly. If many fewer qualified applicants had applied for the job than occurred in this case the pre-screening process may have been more forgiving. Or in fact if the numbers.were small enough perhaps all competitors would have been given an interview and an examination. We heard no evidence that the employer used this attendance criterion in a discriminatory or arbitrary fashion and we were persuaded on the evidence that good regular attendance was an important qualification for the job. The selection committee did not ignore evidence with respect to probable future attendance as it did in the Maloney case. We conclude that it was not unreasonable or unfair on the part of the employer to use this criterion to screen out otherwise qualified applicants. - 12 - In result we do not find the employer acted improperly in denying these two grievors interviews and an opportunity to write examinations for the jobs in questions, and the grievances are dismissed. 1; DATED at Toronto, this &d,.' day of P.ebru&y;?l~$ti: _ . "I'Edissent" (Dissent attached) ;y$z - _. , .-- J. MCMANIJS, Member _ ,,.. :~ - * -. /iqgiJ.-TJ Q--Ap ,_ ' P: Camp Member l KLONOWSKI and ADDISON - Ministry of Correctional Services - 745/87, 800/87 DISSENT The majority of this panel indicates that it agrees with the findings in Malonev (#1940/87). I also agree with Maloney but am of the view that the majority cannot distinguish that award on its facts. If Maloney is read properly, it leads, in my view, to a result opposite to that reached by the majority. In particular, I would highlight the following excerpts from the Maloney award: II . . . standins alone, therefore, nast absenteeism is not conclusive of the likelihood of regular attendance in the future. (at page 6) Secondly, by applying a formula as the Employer did in this case, the ability of an applicant 'to obtain an interview may depend entirely upon the level of health of his fellow employees in the period in which average attendance is considered. Given the variations in rates of absenteeism, an employee may also be eligible for an interview at one point in time and not in another, although there may have been no change in his individual attendance record. Further, asp acknowledged by Mr. Ross, had the grievor been absent for a total of 14 days on 9 occasions, he would no longer have been considered for the position. This, however, would not appear to serve the Employer's interest in ensuring that the successful applicant for the position of Senior Shift Officer is able to attend work on a regular basis. (at page 7) . . if an application is to be rejected, however, this must be done on the basis of a DroDer assessment of the # em 1 ee' s the emDlover screened aaolicants solelv bv reference to average attendance , i . . i 2 at n nce a eriod of aDDroximatelv 18 months Drier to the Dostins. For Q the reas ns s ut lication of such a formula to be an anx, oDriate screeninq mechanism". (at page 8) (my underli%ng) The screening formula used in this case was virtually identical to that used in Maloney. Futhermore, Vice-Chairman Devlin's remarks are not specific to the state of Mr. Maloney's health or his future prognosis - her criticisms go to the formula used, which she finds to be deficient for the reasons given in the exerpts set out above. To decide this case differently from Maloney creates inconsistent decisions of this Board. The confusion created by such a result is precisely what Chairman Shime was attempting to avoid in the Blake award. (#1276/87). I cannot accept, as the majority suggests, that past susceptibility to, minor illnesses, like colds or the flu, gives the employer a right to assume that such susceptibility will continue in the future. This assertion is, with respect, pure speculation rather than a valid logical inference. There was no evidence of future prognosis for such a conclusion either before this panel or before the employer in the course of the screening process. I have great difficulty with the suggestion that there was no unfairness in failing to post the specifics of the attendance requirement. Because the specifics were not posted, it would not have occured to the grievor6 to include with their applications a note from their doctor, for instance, that addressed the matter of future prognosis. The majority decision has placed the grievors in the impossible position of having an onus upon them, at the application stage, of having to defeat an assumption of which they were not even aware. There is no means, short of arbitration, of meeting such an onus. The majority award also goes against the decision of the Board in Borecki (#256/82) which provided that the emolover has the onus to show that it has acted properly in screening out candidates for a competition. The majority in this case reverses the onus by requiring applicants to provide evidence of future prognosis to meet attendance criteria, which criteria, unless they are revealed in pre-arbitration negotiations, may not become known until the hearing date. The same problems exist with the screening process in this case as in m. For example, Mr. Addison, whose absences were "slightly above the institutional average" (Exhibit 8) was absent 9 days on 8 occasions in 1986. Bad he been absent 10 days on 4 occasions, he would have been granted an interview; his bad luck is that he had too many short illnesses. His luck is also bad in that the institutional average was N 8 and 6" in the particular year; had it been higher his chances for promotion would have been much enhanced. Because I believe the Malonev decision, and basic fairness, leave us no other choice, I would have allowed this stage of the grievance and permitted the grievors to present their case as to why they were relatively equal to the successful candidates.