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HomeMy WebLinkAbout1987-0768.Sequeira and Lueck.90-02-065~ ONTAR, EMPLOV~SDEU\ CO”f?ONNE CROWN EMPLOVEES DEL’ONTARE GRIEVANCE CQMMISSION DE Sg%-tl.l.MENT REGLEMENT DES GRIEFS TELEPHONE/T~L&WONE ,416,598-0688 768187, 796187 IN THE MATTER OF AN ARBITRATION Under TBE CROWN EMPLOYEES COLLECTIVE BARGAIlbNG ACT Before TRE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (J. Sequeira & J. Lueck) - and - Grievor The Crown in Right of Ontario (Ministry Of TKanSpOKtatiOn & COIIIIIIUniCatiOnS) ESIplOyeK Before: FOK the Grievor: FOK the Employer: Hearings: J. Gandz Vice-Chairperson J. Solberg Member G. Peckham Member P. Peloso Counsel Gowlinq, Strathy h Henderson BaKKiSfeKS & SOiiCitOKS D. Francis Counsel Winkler, Filion and wake Barristers & Solicitors 1Y January 22, 1988 October 14, 1988 DECISION The Grievance The grievors were unsuccessful candidates in a job competition (No. 6-86-72) for the position of Radio Operator 2. Mr. Sequeira was not granted an interview for the position and Mr. Lueck was interviewed but was not awarded the position. The Union seeks a declaration that the process was flawed, in that it was biased in favour of applicants who had first hand experience of this particular radio room, and an order that the competition should be re-run with a different selection panel. The Facts Following a job posting on October 7, 1986 the grievors applied for the position of Radio Operator 2 in the radio room of the Downsview Maintenance facility. There were two such positions available at the time. In the job posting the department identified certain “must haves” for the position and other “should haves”. Must have: 1 - demonstrated experience in the operation of a two/way radio system; 2 - clear enunciation and a good command of the English language; 3 - willing to work shift work. Should have: A - ability to work with minimum supervision; B - ability to establish priorities and to respond quickly to numerous calls from a variety of sources; C - tact and good judgement when dealing with M.T.C. personnel, outside agencies, and the public; D - a knowledge of the District Operations and the M.T.C. communication system would be an asset. Mr. Sequeira was then a patrolman/checker who dealt with snowplows and sanders. He had started as a radio operator in the radio room many years previously and had worked there for three months. He also testified that he had a radio operators international certificate which he had gained while working in communications in the middle east in the 1950s and was then an unlicensed ham radio operator. Under cross examination he testified that the Canadian government would only recognize his certificate if he passed an exam. He also testified that while he was familiar with the SONY system in the radio room he was not familiar with the Freeway Traffic Maintenance System. His contacts with various people over the radio system were limited to giving weather and other -2- reports to patrolmen or in “emergency situations” -- which Mr. Sequeira could not specify in his testimony. He also testified that he dealt with the OPP and Metro police through the patrolman who might ask him to contact the police. Mr. Lueck was at the time a highway equipment operator who had an extensive amount of experience as a checker and equipment operator in the district. While he had some eight years experience in commercial radio, he had no direct experience of the radio room at the district at the time he was interviewed. Accordingly, he testified that he felt at a severe disadvantage in answering questions 3,4,5 and 6 on the interview schedule which he believed were specific to the operations of the radio room. Although he was unsuccesful in the competition he was temporarily assigned to the radio room in June of 1987. Lueck testified that it took him about three weeks to get a general grasp of things within the radio room. Under cross examination Lueck gave several examples of how he would improve his scores on the interview questions with his additional ‘hands-on’ experience. According to Mr. Morrison, the supervisor of the radio room and a 17 year employee with the Ministry of Transportation and Communications, there were 29 applicants for these two positions. The initial applications were pre-screened by the personnel officer, Mr. Thibeault, but Morrison himself reviewed all 29 applications. He was personally involved in the competition and he and Mr. McDougal (the highway services maintenance manager) helped make up both the criteria for the job positing and the questions to be asked in the interviews. Mr. Sequeira was screened out prior to the interview stage on the basis that he lacked the “must have” of demonstrated experience in handling a two way radio system. Lueck was interviewed. Morrison testified as to the reasons for selecting those who were interviewed. Owens was an experienced OPP officer who used a two way radio in his work; Weelink had direct experience in the district radio room as did Armoogam, Curtis and Clappison;and Kelly had considerable armed forces experience of two-way radio communications. Having listened carefully to Morrison’s testimony, it is quite clear that he placed great store by applicants having had direct experience of the district radio room but that was not the only criterion since he was prepared to grant interviews to Owens and Kelly. Morrison testified that he did not recall having seen Sequeira’s radio certificate and that it “might have” altered the decision to give him an interview. Furthermore, Morrison did not recall having made notes about this pre-screening review. The interviews were conducted by a panel comprised of Morrison, Mr. Dimaline (the supervisor of the electrical crew) and Mr. McDougal (the highway services maintenance supervisor) using a prepared interview guide which was designed to tap “technical skills, operating ability, and dexterity”, ‘judgement” and “interpersonal/communications skills”. There is little doubt that these questions strongly favoured applicants who had detailed knowledge of the district radio room’s operations; for example, one question was “What has -3- been your knowledge gained of the District operations resulting from your radio operating experience? and another asked “If a concrete light standard was knocked down on a weekend, what personnel would you call”? And another asked “Why do you think documentation on log sheets are so essential in the Radio,Room?” Indeed, Morrison emphasized his preference for people with direct district radio room experience when he testified that “anyone who had not worked in OUT radio shop would not know how to handle our system.” The original interviewing panel had consisted of Lukasavitch, McDougal and Thibeault. Thibeault had declined to participate because he was too busy and he was replaced by a Mr. McKinna who was then replaced by Dimaline. Lukasavitch had withdrawn from the process since Weelink was his brother-in-law. Following the interviews the three members of the panel pooled their scores. Weelink was judged clearly superior, Curtis was within 10 percent on the scores, and Lueck was placed third since he was within 10 percent of Armoogam and had greater seniority. Reference checks were done on Lueck by talking with his supervisor, Ron Martin. Since the others worked for Morrison he did not do formal reference checks. The scores of the candidates on the interviews are set out below: Candidate Score Kelly 103.9 Weelink 211.4 Curtis 194.4 Armoogam 193.0 Clappison 163.4 Lueck 175.4 Rank Seniority status 6 None 1 Unclassified 2 81-05-04 3 n/a 5 None 4 82-12-18 The Arguments The Union argues that this process was flawed in several ways: the interview questions favoured those with experience in the radio room; Sequeira’s qualifications were such that he should not have been screened out of the interview process; formal input on references was not obtained from the supervisors of the successful candidates; and that this is all “fishy”given that one of the positions went to Weelink who was Lukasavitch’s brother-in- law. The Employer argues that this was a fair competition. Sequeira was not as well qualified as the others and even if the international radio license had been reviewed it would not have made a difference in the outcome. The focus on specific radio room -4- experience was impelled by the needs of the Employer and formed a fair basis for decision making. Furthermore, the Employer notes that Lueck did better on the interview than one of the people who was interviewed and was within 10 percent of two others. The Decision The collective agreement (Article 4.3) provides that: 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. In the case of Sequeira the Employer decided that he did not meet the requirements of the job to the same extent as the other candidates. In our view the Employer came about this decision quite properly, without any bad faith. We accept Morrison’s testimony that he reviewed the 29 applicants’ files and we do not find it necessary to have notes to that effect to accept his testimony. An examination of Sequeira’s qualifications indicate less direct and indirect experience of radio room operations than any of the others who were interviewed. His early experience was over twenty-five years old~and his more recent experience could best be defined as casual at best. The Employer had at least six more experienced applicants for the position and it is well established [Boreck, 256/82] that the Employer can restrict his interview list to a reasonable degree. In our view, interviewing six people for two jobs is a reasonable restriction. We also agree with the Employer’s submission that even had the international radio certificate been known to the Employer this would have made no difference to the outcome of this case. With respect to the subsequent competition, we find that it was carried out in a competent, if not,perfect, manner. An interview schedule was prepared, it was used, scores were properly assigned, and the candidates were ranked properly. In the event, Lueck finished fourth but was ranked third based on his seniority. He was well below Weelink and Curtis in the scores. Given the potential for nepotism, Lukasavitch did the only possible thing in disqualifying himself from the selection process and the fact that he was Lukasavitch’s brother-in-law should not act to Weelink’s disadvantage. This board has established standards for conducting job competitions through many awards, notably MacLellan and DeGrandis (506/81, 507/81, 690/H, 691/H) (Samuels) Included among these is the requirement that applicants’ supervisors should be asked for their evaluations of the applicants. The Union criticizes the Employer’s decision on the basis that not all supervisors were asked their views of all of the candidates. First, Morrison had personal knowledge of the work of Curtis, Weelink and Armoogam and -5- nothing would have been served by writing a formal reference on these candidates. But he, or others on the selection panel, did not know Lueck’s work well. Morrison testified that he asked Martin for his views on Lueck and that Martin had said “he was a good man”. However, there was nothing written to this effect and -- importantly -- the ‘reference check portion of the Candidate Ranking Form and Selection Board Summary Report was left completely blank. If this were a close competition between Lueck and either Weelink or Curtis then we would find this lack of a formal written reference to be a fatal flaw in the selection process. However, we do not find this so in this particular case. The two successful candidates had more direct work experience, they were able to be operational almost immediately, and they performed in a clearly superior fashion in the interview. It is hard to conceive of a sufficiently superlative reference for Lueck which would have overcome these relative inequalities. Having concluded this, we still marvel at the seemingly perverse refusal of some ministries to heed the repeated blandishments of this board and do the thing properly! While Morrison testified that he had little experience in running such competitions, there are resources available to avoid this kind of thing happening by accident. This really leaves the issue of whether the Employer was entitled to set the conditions for success in the job based on intimate knowledge of the operations of this radio room in this district. Common sense requires that the Employer should be able to specify the “should haves” and “must haves” for a job, particularly when public safety is involved as indeed it is in this case. Fairness requires that such criteria not be set which are so tight as to eliminate from consideration candidates who --with a very short familiarization period -- would be able to do the job. Put simply, selection criteria cannot be manipulated to hand the job to a favoured candidate over other, relatively equally qualified candidates. In the instant case we did not find that this occurred. We accept the Employer’s argument that intimate knowledge of the radio room’s operations were a bona fide job requirement and Lueck’s own testimony was that it took a matter of three weeks or so for him to master the routines when he was assigned to the radio room in July 1987. Accordingly, we conclude that, despite some procedural deficiencies, there was no breach of the collective agreement and no fundamental injustice was done and, therefore, these grievances are denied. -6- DATED at London, this 6th day of Februxy,ll990. ~. J. GANDZ, VICE-CHAIRPERSON "I dissent) (Dissent attached) J. SOLBERG, MEKBER / G. &&AM,~MEMBER -i - Dissent from: Janet Solberg Union Nominee Re: OPSEU and Ministry of Transportation and Communications Grievance of Sequeira and Lueck _----_------------------~------~~~-~~~~~~~~~-~~--~--~~~~~~-~~~-~~ I will start this dissent by agreeing with the 8oard. It seems to me that on the basis of the information supplied by Mr. Sequeira in his application, the Ministry reasonably concluded that his experience as a radio operator was indirect,, casual and outdated. -- _~.- -. However, I am far less comfortable with the Board’s decision regarding MY. Lueck. In the job posting, the Ministry required as a must have someone who could operate a two-way radio system, someone who knew the general policies and procedures and codes of radio operation. As a secondary, and only as a secondary requirement, the Ministry requested that the applicant should have knowledge of the district operations and the MTC communications system. On paper, that is a reasonable and defensible division of needs. Unfortunately, the interview did not proceed on that basis. The should have became a must have. The questions asked, on the Ministry’s own documentary evidence and on the Ministry’s own testimony in front of the Board, clearly favoured someone who knew the policies, procedures and even the personnel directly and specifically related to the radio room of that district. That was neither reasonable nor fair. The issue of public safety is merely a convenient detour. After all, both the successful candidates had to have been trained at -,_ some point prior to the vacancy. Moreover, MY. Lueck himself was p=ed in the’ job- o‘na-tempoFary basis later in the- year’.- -- -.- -- Presumably, in both situations, public safety was not compromised. In the end, I believe the interview and selection process were fatally flawed. This Board should have allowed the grievance. -.. -