HomeMy WebLinkAbout1987-1620.Vaillancourt.90-02-01EMPLOY~SOELA CO”RONNE oRowNEMPLo”EEs DE L’ONTARIO
GRIEVANCE CQMMISSION DE
SETTLEMENT --. .--~~~-.. REGLEMENT
BOARD ii ES GRIEFS
Between:
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Vaillancourt)
Grievor
- an8 -
The Crown in Riqht of Ontario
Before:
For the Grievor:
For the Emplover:
Hearinss:
(Ministry of Health)
T.H. Wilson
J. McManus
P. Camp
Vice-Chairperson
Member
Member
C. Dassios
Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
Employer
A. Rae
Staff Relations Officer
Human Resources Secretariat
Management Board of Cabinet
February 19, 1988
November 28, 1988
Page 1 !
John Vaillancourt is an Instructor 2 Occupational at the Mental
Health Centre in Penetanguishene, Ontario. He applied an a job posting for a
Motor Vehicle Driver 1, posting date May 1987, the competition restricted to
persons currently employed by the Mental Health Centre. Three individuals
were interviewed. The grievor who was not successful grieves that Article
4.3 of the collective agreement was violated.
The grievor has a class C licence which permits him to drive
buses, school buses 8 and trucks other than tractor-trailers. He has had that
licence since 1983 and prior to that had had a chauffeur's licence since 1965.
Prior to working with the Ministry he had worked when a student as a driver's
helper in the summer with Penetang Bottling and drove the big red Coke truck
on average about two hours a day. The trip was a 30 mile round trip in the
Midland area. In September 1967 he took a full time job with Imperial Optical
in Toronto. There was little driving experience on that job. In 1980 he
joined the Ministry of Health. He was on contract (unclassified) as a
Psychiatric Nursing Assistant. From time to time as such he ~escorted patients
off the grounds to other hospitals or for doctor's appointments. And on
occasion, he actually drove the vehicle including as far as to Toronto.
Between September 1981 and May 1982, he was off contract while taking the
R.N.A. course at Georgian College. He has also received CPR, paramedical
training and at the hospital the Crisis Intervention Certificate and after
receiving his RNA certificate he received the psychiatric course in-house at
DECISION
Page 2
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the hospital. In May 1982, he became classified staff as a Psychiatric
Nursing Assistant II. Until March 1983, there were no substantial changes in
his duties. At that time, he became an Occupational Instructor II.
His duties as an Occupation Instrutitor II are as follows: when
patients are admitted, he does a work evaluation and tries to set up a program
to improve their working skills. There are two shops on the grounds of the
Mental Centre. There is an outside work party in which inmates do grounds
work under supervision and there is a community work shop for patients who are
more advanced toward release. They go off the centre's grounds into the
community. There is also a warehouse where an instructor is in charge doing
receiving and shipping. The grievor was assigned to shipping and receiving
for one and one-half years. This involved driving a truck three hours a day,
moving goods from one area to another including trips to Toronto. The type of
truck used was like a furniture moving truck similar to the type of truck
driven on the job in the competition. Nonnally'he was transporting materials
around the Centre's grounds or into town. Usually one patient was assigned to
him and would accompany him on the truck to assist with the loading and
unloading.
The grievor testified that, while on the warehouse assignment, he
was in daily contact with the drivers. A driver would take a truck he had
loaded and drive it to Toronto, pick up new goods and then return with it.
The grievor would then get the truck from the garage and drive to the
warehouse, a few hundred feet away.
Drivers have a number of types of driving assignments:
Page 3
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
escorting patients from the hospital to other hospitals or
out of town (referred to as highway runs). This would
. . normally be done in vans or station wagons;
garbage runs: the garbage is in covered boxes;
food runs: delivering food from the kitchen to other
buildings on the grounds;
laundry run: to the hospital in Midland;
local runs: every so often this would be extended to
Midland, time permitting--it was done in a van;
the truck assigned to the Oakridge Division was used for
workshops (not often now). This also involved such things
as delivering skids to local industry and operating a fork-
lift truck;
driving a bus when patients went on excursions such as to
Barrie or Gravenhurst;
filling in as the driver or wing-man on snow ploughing.
The grievor testified that he believed that he was capable of
doing that work at the time he applied on the job posting.
Pat Dupuis has been the driver/supervisor for the Centre since
April 1977. He was a driver prior to that for about nine years. His present
staff includes seven full-time drivers and two part-time drivers. the
equipment includes four 12-passenger vans, one seven-passenger mini van, a 32-
passenger Blue Bird bus, two four-ton trucks, two 16-ton trucks, a five-ton
truck (IT Shops) and two one-ton trucks (maintenance department which they
service). They also service a converted van (maintenance department). At one
‘. 3
x
Page 4
point or another, all the drivers have driven these vehicles. Generally some
drivers are assigned to specific vehicles--the town run, the highway run lie.
transfers to Toronto, Whitby, and Hamilton for example), the IT truck, and the
garage and laundry van in which two drivers alternate.
Dupuis stated that the driver should have a thorough knowledge of
the Highway Traffic Act, should be able to do minor mechanical repairs both on
the road and in the shop, should be courteous to the public, neat in
appearance and dependable. He would expect an applicant to have a couple of
years of experience on all vehicles including the 16-ton truck, the bus and
the 12-passenger van for which a C licence is needed. These requirements
appear in the Positions Specification (Exhibit 20) under "Skills and Knowledge
Required" and also in the Position Posting. Because of the .qeoqraphical
location of the Centre, the vehicles bear extra colouring painted on them like
that on an ambulance so that they are more visible in the white-out conditions
that occur from time to time in the winter season. You can expect bad road
conditions 30% of the time in the area.
There were four applicants on the posting. The Selection
Committee had three members. They drafted the job posting. After the
interviews, these three got together and awarded points to the applicants.
The grievor was awarded one out of 10 for experience on buses; two out of 10
for vans and 5 out of 10 for trucks. On the safety portion of the interview
sheet the questions except one were taken from the driver's manual for "C"
licence. The grievor scored a total of 6 out of possible 12. He apparently
had not reviewed these materials before hand. Dupuis testified that the
grievor stated that he had driven the van used in the centre grounds but it is
not classified as a 12-passenger van; it is just a converted ambulance and it
,
Page 5
does not qo on the highway. The grievor had also indicated that he had driven
the station wagon that the Centre used to have but had driven only three times
on the highway (Score 2). With regard to the trucks: the grievor had
operated the 16-ton truck on the grounds, had taken it on some trips to the
outskirts of townand had made two trips to Toronto (Score 5). Brian Schell,
the incumbent, had taken five trips with the bus according to the records
(Score 5). He, had driven the automobile-vans eight times (Score 8). He had
highway driving experience. He had experience on trucks (Score 7) including
the IT 16-ton truck (seven trips to Toronto). Schell is a part-timer and
averages 17 hours per week and filled in for regular drivers. On week-ends
his duties were to pick up garbage. He also had experience with a dump truck
and had driven tractor-trailer for Elayflower.
Another competitor, Lalonde, scored 61 while Schell scored 54.
However, Schell won because he had more seniority than Lalonde. Lalonde did
not grieve.
Greg Lee is a senior staff relations officer for the Ministry of
Correctional Services. He was involved directly in the job competition in
order to ensure coordination of the overall competition. He testified that at
the cut-off date or just before it, he would have gotten together with Dupuis
and Barrie Morris to set up the questions for the interview and the selection
criteria along with the weight to be attached to them. The weight was based
on a consensus reached through his own personnel experience and the
supervisor's knowledge of the job itself. Driving and safety knowledge were
the biggest elements,the latter being based on knowledge of the Highway
Traffic Act.~ When asked whether he had reviewed the personnel files, he
testified that they had reviewed them as a committee after the interviews.
Page 6
Dupuis had testified that he had not reviewed the files. Lee stated that it
is his normal practice to have the files and have the committee read them. He
stated that he remembered reviewing the files.
When asked whether the uniformity of scores among the .three
interviewees was a result of the discussions among the members of the panel,
Lee replied "Yes that and the criteria of the questions themselves."
The union claimed that the competition was wrongly decided for two
different types of reasons: 1. procedural and 2. substantive. The first
procedural issue is an allegation that the personnel files were not examined.
In this regard the Union Counsel cited Pool and Ministry of Health (GSB
#2508/97 decided 21 Sept. 1988). That case involved a competition between a
very experienced psychiatric nurse and a newly coined nurse competing for the
position of Hospital Educator. The grievor did poorly in the interview and
the successful candidate did very well on the interview. The Board found that
the competition was not run properly and directed that the grievor be placed
in the posted position. The Board found that the grievor "had much better
qualifications and far greater experience to perform the required duties than
the successful applicant." At page 5 the Board found:
"all of this was obvious from her application form and could have
been confirmed by the selection panel if it had consulted her personnel records."
And further on:
"The information was in their hands or readily available if only
the panel had done its job according to the procedures long established by this Board."
The reference is made in the decision to MacLellan and De Grandis, --
506181 which sets out the criteria for competition of which number 4 states
"4. All members of a Selection Committee should review the personnel files of all the applicants."
Pag.e 7
In our own case, Dupuis testified that he had not reviewed the
personnel files after the interviews. Lee's testimony we have noted. I am
satisfied that Lee's recollection is more dependable. As an experienced
personnel professional, as he stated, his practice was to bring the personnel
files and I find that perfectly credible. I would also sound a note of
caution here: The Board's policy is clearly stated that during competition
the files are to be reviewed. At the same time, if a competition is
challenged, there still remains en onus on the grievor to show that a failure
to review the personnel files during the competition may have affected the
result. Obviously, this Board will not upset the result of a competition
where the corporate files were'not consulted when there are no grounds to
conclude that the corporate files might have altered the result.
The second procedural objection to the competition is that the
Selection Committee should not have consulted so as, so to speak, to "co-
ordinate their marks." Mr. Lee.did not deny that it had some effect on the
marks. It scarcely needs to be stated that if this Board felt on the evidence
that a Selection Committee had "cooked" the results so as to suborn the
separate decision-making of the individual members of a Selection Committee
the result would be set aside.
The Board was referred to McIntyre @&i Ministry I?f COntnWdty &
Social Services (GSB 141/85 decided August 10, 1989) in support of a
submission that the member of the Selection Committee should not consult to
produce the same score results. In HcIntvre the scoring of the oral
questions of the candidates was done initially by each interviewer separately
as each question was asked. At the end of the interview the total scores
Page 8
assigned by the two interviewers were added together. There was virtually no
consultation between them over the marks they assessed: One of the
interviewers, Mr. Ambrose marked the written test and that score was added to
the combined totals from the oral examination and a final score reached. Two
candidates scored 307 and 300 respectively and the grievor, McIntyre, scored
256. The two higher candidates were selected. A reference check was made on
the one of those two who was not known by the selection committee. No checks
of references, .iu+tjiioFi3 or personnel files were done on the other
candidates since their practice was to check only on references of persons to
whom they planned to offer positions.
At page 8, M!$ P. Knopf wrote:
"We also find no fault in the way that the scores in the test were
calculated. It is true that the interviewers' failure to consult
and discuss anomalies in their scores in individual questions could result in some inaccurate assessments on some very subjective areas. This is so because, given the nature of the job
and the kinds of guestions that had to be asked, many judgmental
types of answers were solicited. But the methods adopted by the
interviewers here were a lesser evil than the risk of collusion
that would have been created had the interviewers consulted with
each other on their scores.M
The Board then went on to find other serious problems. The
McIntyre case is as Union Counsel pointed out the reverse of the present
situation. The McIntvre panel did however refer specifically to the danger of
collusion where the interviewers consulted on their scores. The selection
panel in our case did consult and did award uniform scores. Schell got 54 (44
+ 10 for attendance) and the grievor got 37 (27 + 10 for attendance).
McIntyre indicates the prohibited scoring is that arrived at by collusion.
Actually, in my opinion, collusion need not be actually shown to invalidate a
scoring process: collusion is defined in the dictionary as a "secret
i . .
i
Page 9
agreements for a wrongful purpose, especially between persons wishing to
defraud another or between persons who wish to appear as adversaries." I
doubt that the Board in McIntvre meant that the grievor actually had to show
that level of corruption to invalidate a scoring process. I would be willing
to set aside a set of scores where the evidence showed that the three members
of the panel actually surrendered their individual judgments. Uniform scoring
is an indication of that and does raise a very serious doubt. However, on the
actual facts of this case where most of the test was reasonably objective and
not very highly judgmental, somewhat stronger evidence would be needed to show
that the panel members actually abandoned their individual judgments to reach
a common scoring. But I do not wish to be taken as approving the method used
in the present case: it does give me concern and if the facts on this point
had been somewhat stronger in the grievor's favour, I would certainly have set
this scoring aside.
This brings us to the substance itself of the decision. The test
of course as set out in the collective agreement is "relatively equal.” I
certainly understand and agree with the Ministry's search for an experienced
driver. The union does not seriously challenge that. We have of course to
avoid falling into a purely numbers game. Still, in this case because the
factors are reasonably straight forward and do not require a highly subjective
evaluation of sophisticated skills, the raw numbers are more meaningful than
they might otherwise be. The incumbent got 55 out of 70 and the grievor got
37 out of 70. Under the circumstances of the nature of the job position, that
cannot be considered as relatively equal. That is 79% vs. 53% which is a
significant spread which widens even further if you remove the 10 points given
each for attendance. (73% VS.45%). That of course does not answer the issue
Page 10
since it is much more important to look at the actual basis on which the
scoring was awarded, i.e. the facts themselves. The union referred the Board
to Worsley & Ministry of Government Services (GSB 347/81) a decision of
Vice-Chairperson Draper. At pages 5-6 thereof, he sets out an analysis of the
tests used in applying "relatively equal"
"The issue for determination by the Board is whether or not the
Selection Committee acted reasonably and correctly in finding, on
the basis of its dwn evaluations, that the qualifications and ability of the grievor and Miss Nis were not relatively equal
ad, as a consequence, not giving consideration to seniority as required by Article 4.3 of the Collective Agreement.
"There is no definite 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. Certainly, relative equality differs from, because
lesser in degree than, lequal’itjl Nor is it simply a euphemism for equality, absolute equality being, in any event, an inappropriate
and impracticable notion to apply in the selection process. It
does seem to us reasonable to assume that the concept of relative
equality, at the very least, is intended to serve a practical
purpose, not to satisfy a strict definition."
The test of “substantial and demonstrable difference in
qualifications and abilities" would appear to be a workable word formula for
testing for "relative equality.”
I,do find the word formula "acted reasonably
and correctly" as a test for arbitrable review somewhat puzzling since
"reasonability" and Ucorrectnessm are generally considered in terms both of
logic and the jurisprudence to be different tests. As I understand the
jurisprudence the proper test is whether the Selection Committee erred in
evaluating the candidates ie. acted correctly, not whether it acted
reasonably. Be that as it may, the test for relatively equal is correctly set
out in that decision. The Union challenged the omission of credit for
experience and training in dealing with patients. The Ministry's position was
that that is not a requirement for the driver. Whether it ought to be or not
a qualification for drivers is not really part of our determination: the
attendants are currently responsible for patients and in a job competition,
the Board is not prepared to mandate that the drivers be qualified to do that
as well. I have set out the evidence on the driving skills and whether or not
the great difference in experience as found by the selection panel are as
great as their raw numbers indicate, it is in my opinion sufficient to find
that there is a demonstrable and substantial difference between the incumbent
and the grievor. And I do so find.
There remains one other issue in this case which the evidence
raised. The incumbent was related to one of the interviewers. The
grandmother.of the incumbent is the aunt of Dupuis. Dupuis testified that he
really had no close personal contacts with the incumbent, although of course
he was from time to time in contact with his aunt, the incumbent's
grandmother. He did not disclose the connection of the other members of the
panel for as he testified it did not even occur to him. Many employees at the
Centre'are related in one way or another as the local community is small. I
might note in my own experience in small towns generally, this is not unusual.
Ironically, Mr. Lee disclosed in evidence that the grievor was his wife's
cousin! I cannot find that there was any reasonable apprehension of bias by
reason of this remote familial relationship. However, again I believe that to
prevent unnecessary problems in the future, Selection Committee members should
disclose any such relationships.
Accordingly, to summarize, I am satisfied that the selection
procedures on this evidence were sufficiently fair and that the Selection
Committee did not err in finding that the grievor (the more senior employee)
was substantially and demonstrably less qualified than the incumbent, the
successful candidate. The incumbent attended the hearing and was afforded
full opportunity to participate in the proceedings. The grievance is
dismissed.
DATED at Toronto, Ontario this 1st day of February, 1990.
lhomas H. Wilson, Vice Chairperson
“I dissent” (Dissent to follow)
J.. HcManus , Mqnber