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HomeMy WebLinkAbout1987-1983.Laforest.89-04-28ONTARIO i’ --- m GR,E”ANCE CROWN EMPLOYEES mm CQMMISSION~.DE SETTLEMENT REGLEMENT DES GRIEFS Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (L.. Laforest) - and - Grievor The CTOWn In Rigat of Ontario (Ministry of Cnmnunity & Social Services~l . ,pployer Before: APPEARING FOR THE GRIEVOR: . APPEARING FOR THE EMPLOYER: Hearinss: R.J. R&erts Vice-Chairperson T. Traves Member D. Wallace Member -3. Wilson COG?lSel Fowling and Eendersnn Barr-lsters and Solicitors L. Brossard Counsel Lega: Services aranch ??inistry of Comxir?lty & socia: Se?-*ices . . ,. -- This is a .job posting case. It was claimed on behalf of the grievor that (i) the selection procedure was fatally flawed; and (ii) on the evidence adduced at the hearing, the grievor was relatively equal to the successful incumbent, and under the provisions of Article 4. of the Collective Agreement the grievor should be awarded the job. For reasons which follcw. ~'2 conclude that the selection procedure was fatally flawed: however, we decline to award the job to the grievor. Instead, we dire.ct that the competition be rerun in a manner not inconsistent with the terms of this award. Before proceeding further, w 2 note that the successful candidate, Mr. Allan Lamothe, was duly notified of his rights in the present proceeding. Mr . Lamothe was in attendance on all days of hearing and gave testimony as a witness for the Ministry. The job posting in questiongas for a Financial Analyst in the Sudbury Office of the Northern Region of the Ministry. ..~ According to the evidence, this job posting,and others like it in the Region, were precipitated by the decentralization out cf Toronto of tha finance function. In early 19S6, as part of this decentralization, Mr. J. Planarin was hired to act as an on-site Finance Manager. Mr . Manarin was given the. title of Manager. Finance and Administration, North Central Area. He reported to . the Area Manager, Mr Richard. Rivard. Two management staff members reported to Mr. Planarin, a Finance Officer, Ms. Susan - _ . . 2 Eibl, and a Systems Officer. In turn,,Ms. Eibl supervis2d five- six clerical accounting positions. These~were in the bargaining unit. At about this time, there was perceived to be a large gap between the leve$df financial sophistication of th2 most junior manager and the most senior .clerical p;0p1e. This; it seemed. created problems of proper control, monitoring and analysis b-f financial data. Ultimately, the job of Financial Analyst was created in an effort to bridge this gap. On March 27; 1987, this.. job was posted and advertised. At about the same time, for about e.leven months in thi . : period May, 1986 to July, 1987 I the grievor was assigned to perform so-called' reconciliations ins order to ge't rid of a backlog which had,.built up in the office. The grievor 2xplain2d in her testimony that reconciliation consist2d of verifyinc .-~ payments made,by the Ministry against expenditures of agencies, such as homes for the aged and homes for mentally handicappad, which received Ministry funding. This was a more complex task than previously executed by the grifvor as an Accounting Clerk 4. It seemed to be agreed among all of the witnesses who testified at the hearing that the grievor was assigned the reconciliation function because she was regarded as a superior employee. . . Th2re was considerable disagreement in the evidence. however, as to the' level of complexity of the reconciliation functions that the grievor performed during this assignment. The _i grievor's immediate Supervisor, Ms. Eibl,, testified that the grievor performed functions which'+,.required'- her to exercise a fairly high level of knowledge, skill and ability in accounting. -She stated that the grievor ensured that reconciliations came in, were recorded and verified by, the clerical staff. The grievor then would reconcile the estimated approved to actual .expenditures, determine why variations occurred, and if sha could not make that determination from available inf.ormation, sha would contact the programme supervisor responsible for the agency in question to discuss the matter with him or her. If no assistance was found to be available at this ~point. the grievor then would Abe given permission to call the agency to find out the reason. Thereaftfr,~ Ms. Eibl said, the grievor reported the reason for the variance back to her. MS . Eibl added that th2 grievor also had tom detsrmine whether the variance was in accordance with Ministry policy.or if the expenditures in question w2r2 inadmissible,: The grievor th2n . was required, Ms. Eibl said, to recommend whether th2 Ministry attempt to recover the.money or allow the agency to k22p it. By January, 1987, Ms. Eibl said, she felt. that s'he had enough e.xperience to propose a classification for the job that 4 the grievor was doing. She drew up a job description, which was ent2red as an exhibit atthe hearing, and sent it to Mr. 14anarin. her Supervisor. for his comments. Ms. Eibl testified that, in her opinion, this job description was an accurate raflection of all the functions that the grievor was performing. Mr. Manarin and Mr. Mark Haley, the then Area Administrator, Human-Resources', in Sudbury, disagreed. Mr , Haley-t$stified that when he saw the job description that Ms. Eibl had prepared, ha questioned her as to its origin. Ms. Eibl r2plied that she had gotten the job specification for the Financial Analyst position which recently was created at the North. Bay Office of the Ministry, and substantially copied it. He said tha.t he felt that as such, th2 job description prepared~ by Ms.. Eibl was an overblown, inflated, grandiose description of th2 job that the grievor was performing. .'. Apparently, Mr. Manarin held the same opinion. There followed several meetings involving him, Mr. Haley and Ms. Eibl, and out of these meetin'gs grew a scaled-down job description which Mr. Haley declined to classify at the Finance Officer 1 level. This was the level assigned to the Financial Analys,t position. Instead, Mr. Haley classified the job at th2 lower OAG 10 level. This was somewhat higher than the qrievor's original classification of OAG 8. 5 Mr. Hal2y testified that, in particular, he scalad down th2 part. of the job description which referred to the gri2vor as performing analysis of financial data. H2. said that from his revi2w of the jo.b , the grievor was in no way responsible for analysis of financial data as that term was generally understood. Rather, ha stated, the grievor was performing clerical work which was slightly mor2 advanced than what had previously been assigned to her as a Financial Clerk. He went on to say that from his experifnce in evaluating jobs in the financial area, ;q. f understood analysis to mean more than dafining the difference between budgeted and actual expenditures. It meant analyzing with financial tools the legitimacy of expenditures. This might. involve comparative analysis, i.e., comparing the CUrrBnt veal-" s actual expenditures with those from th2 previous y2ars. or th2 current year's budget with the previous years. It would invoivz looking at ratios, he said, ardhaving an understanding of what is and is not reasonable. What the gri~2vor did, Mr. Haley went on, WElS to pull togethsr- voluminous amounts of information, identify variances and on occasion make inquiries of programme supervisors as to why those variances existed. There was no ~real analysis, he said. What was done was the .collection of a d.ata base for the review of a finance manager. -. I 6 I Ms. Eibl testifiad that when the grievor was advised that the reconciliation function that she W2.S performing was to 02 classified at the OAG 10 level. and not the Finance Offic2r 1 levsl, she considered filing a grievance. HOWeVer, after discussing the matter with Ms. Eibl, ths grievor de~cided against so doing. As to th2 job posting which is the subject of th2 pr2sent grievance, Mr. Manarin testified that the Financial Analyst Position for the Sudbury Office was advertised on March 27, 1987. It was advertised in the Sudbury Star, the North Bay Nugget, th2 Toronto Star and the Ontario Government publication, J 3 i- Mart/Topical. Mr. Manarin stated that this was an oper. competition, designed to ,,reach a wids market for potsntial candidates. Since this was a new position, Mr. Manarin said, he' felt that the market'had to be expanded. As it was, !3r. Manarin continued, 87 applications .were rec2iv2d. When ne screened these, Mr. Manarin testifi2d. he selected six candidates fcr ,. interview, including the grievor. His screening.criteria, Mr. Manarin stated, w2re education and experience. ~. Mr . Manarin also testified that he chose tha s2le~ction panel. It included four people: himself: Mr. Greg Punch. th2 Regional Financial Officer, Sault Saint Marie Office: Mr. Richard '* ,. Rivard, the Area Manager; and Mr. Bob Nye, the Regional Dir2'ztor. ,Human.Resources. Mr. Manarin prepared the questions for th2 7 interview in consultation with these panelists. The questions and their weighting were adapted to fit six sel2ction criteria that Mr. Manarin developed. These were '(i) reconciliation and ..~ financial analysis (28%); (ii) technical-legal agreements (15%); (iii) budget knowledge and process (12%); (iv) financial systems (19%) ; (v) communication skills - oral and report writing (17%); and, (vi) general knowledge (9%). As.t.0 the qualifications and ability of the ideal .incumbent. ? Mr. Manarin testified that he or:she would have a good knowledga of accounting principles, financial analysis, methods and techniques. He or she also would have knowledge -- as opposed to good knowledge .~-- of Ontario Government Accounting practices. The ideal incumbent, Mr. Manarin stated, also-would have superior analytical and communication skills. As to the ideal background that the panel was looking for, Mr . Manarin testified that it would involve experienc2 with financial statements, experience with audited financiai statements, and/or reiated post-secondary education such as university or college degrees in accounting or businfss and/or being in the final years of accounting dfsignation courses. As to the ideal work background that was being sought Manarin indicated that the panel sought someone with exper in the preparation of financial statements, ha'ving , Mr. ience some _i 8 involvement in internal or external audits, and who had performed the function of analysing financial statements in a progressively supervised environment. i.e., on2 in which the candidate's work was reviewed so as to provid2 him or her with the necessary feedback to 12am the function. With respect to the Financial Analyst postion in the Sault Saint Marie Office, Hr. Manarin commented, the successful incumbent possessed a community college ;.*:,.- degree and was two courses short of receiving the certified --L.T,: gen2ral accountant designation. Mr. Manarin summarized his expectations of the successful incumbent as follows: (i) (ii) (iii) (iv) (V) (vi) complete rqconcilia.tions; provide analysis of reports, i.e., financial statements; provide reports -on problems identified from ._ financial statements to provide a basis fur further action: provide feedback to Program Managers to giv; thzm .sufficient information to allow them to negotiate ,budgets with transfer payment agencies; bacon2 involved with the financial reviews of th2 agencias; and psrform the technical co-ordination function." 9 Mr. Manarin also stated that the candidate had to have a general knowl2dge of computers. He said that the panel was iooking for someone who could use computer tools in analyzing financia? statements and understand what computers could do to enhance efficiency. The Board does'not intend to review in detail the questicrs which we,re asked during the interview. Nor do we intend to review the nature of a case study which all candidates were requested to analyze in writing,.and which accounted for some 2516~ of the total score. No question was raised at the hearing as to the sufficiency of the s2lection criteria. Likewise, no question was raised as to the relevance of the questions,~ and thsir weighting to evaluating candidates according to those criteria. Question was raised, however, as to the adequacy of reference checks made by the panel, and it is to this point that we now turn in our review of the facts. Mr. Manarin testified that when th2 panel discuss2.d -the candidates who were intervifwed. they did not have before the5 the personnel files nor the performance appraisals of gov2rnm2nt employees such as the grievor. Nor were reports solicited from. their. supervisors. Mr. Manarin agreed on cross-examination that thisinformation would have been available at thi time-and could have been placed before the panel. He also agreed that it could be a valuable determinant in deciding whether a candidate had the .i 10 ability to do the job. Further, Mr. Manarin agreed that it was a generally accepted part of the selection procedure to look att personnel files and performance appr.ai.sals. Mr. Manarin went on to say that, in 'his oginion. this omission did not in any way. prejudice the candidacy of the .grievor. He said that while he did not review the grievor's personnel fiie and performance appraisals specifically with respect to this job competition, he had reviewed them upon assuming his current position as Manager. Moreover, he stated, he was familiar with then fact that the grievor was a superior employee. Not only did the grievor's Superviscr, Ms. Eibl, advise him oft this, but, he stated, he had occasion T)o o'bserve the grievor's superior qualities himself when ,he acted as, he,c direct Supervisor during' Ms. Eibl's maternity leave. Mr. Nan,;rin agreed, however, that he never had occasion personally to give the grievor a performance appraisal. _I.~ -.-_ .. AS to tha state of knowledge of tha other members of the selection panel, Mr. Manarin indicated that he briefed tham as to his knowledg,e. of then grievor's superior performance as an employee. He stated that Mr. Rivard indicated to,him that he was very familiar with the grievor, although Mr. Manarin was unsure whether Mr. Rivard had ever seen her personnel file. As to Mr. rq* I the Director of IIuman Resources, Mr. Manarin stated that-Mr. Nye indicated that he was well aware of the griavor, who she was 11 and her suparior potential in terms of ability: Mr. Manarin said that in his conversations with Mr. Nye. he described what the grievor's functions were, how good a worker she was, etc. The remaining panel member, Mr. Punch, was called to testify, on behalf of the Ministry. He stated that he did not recall seeing the grievor's personnel file. However, he said, in performing his duties he talked to her on tha telephone and dealt with her directly on several occasions. .-Through these~contacts, he said, he managed to obtain considerable information regarding her superior ability. Despite this, Mr . Punch said, he was surprised to seethat Mr. Manarin had selected the grievor for an interview and questioned him about it. He said that he did net feel that the grievor's qualifications met the re.q&irements'ket out in the advertisement or job specification. In his view, 1-k Punch stated, the grievor was *'a good clerk...a superior ,clericai staff." But, he testified, the grisvor would not have had the general awareness of accounting principles that in his view constituted the bulk of the position of Financial Analyst. In Re Sahota and Ministry of Government Services (19881. G.S.B.. #2238/87 (Watters), the Board enunciated the standards which have been established and applied in job posting cases as follows: Article 4.3 is the provision of the collective agreement relevant to the resolution of this grievance. It.reads: . 12 "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 sarvica shall be a consideration." As stated by the board in Clipperton, numerous panels of the Grievance Settlement Board have had ths opportunity to interpret and apply the above-cited article. Clear standards have been established for the parties, both as to the essential elements of a competition and as to wh.at effect should be -given to greater -seniority. The award in MacLennan and DeGrandis, 506, 507, 690, 691-81 (Samuels! I summarizes the criteria established by which to assess a competition. These were stated as follows: 1. 2. Candidates must be evaluated on all the relevant qualifications for the job as ser: out in the Position Specification. 3. 4. 5. 6. The various methods used to assess the candidates should' address -these relevant qualifications insofar as is possible. For example, intervie:< questions and evaluation forms should cover ali the qualifications. Irrelevant.factors should not be consider~id. All the members of a selection committee shou1.d review the. personnel files of all the applicants. The applicants' supervisors should be asked f,or their. evaluations of the applicants. Information should be accumulated in a syst~en;atic way concerning all the applicants." (Pag@s 25-263 :d. at pp. ll-12.< This Board has consistently held that failure -to cnns;iit ._, personnel files and reports of supervisors are significant flaws in the selection procedure. Where the Board finds such flaws tc exist it generally invalidates the competition in question. SE2 Sahota. supra. at PP. 12-14: Ra Elcrntvre and Ministrv of Community and Social- Services (1987). G.S.B. #014i/85 (Knopfi, at PP. 9-10; Re CliPPerton and Ministry of Community and Social Services (13881, G.S.B. #2554/81 (Watters), at pp. 15-17. The hand of the Board will only be stayed when' it is presented with convincing evidence that the deficiencies could not have prejudiced the candidacy of the grievor. Such evidence was presented in Re Renton and Ross and Ministry of Government Services 91986), G.S.B. Nos. 1577/84; 1578/84 (Roberts). In that case, two of the three members of the panel had directly supervised the grievers for a number of years. There ;ias no doubt that they had briefed the third panel member completely as to the qualifications and abilities reflected in the gri2vors ' personnel files. Moreover, "There was nothing in the. evidence tc indicate that these briefings were anything ‘but objective. ?3n the evidence, neither of these persons had any reason to be dishonest, biased.or actuate: by malice or ill will_", Id at p. 18. In the present case, the briefing that Mr. Manarin gave to the other three panel members re'garding the qualifications and abilities of the grievor fell far short of that in Renton & m. Mr . Wanarin. had only a~ few month's experience in directly supervising the .grievor. Moreover, ~this .supervision was of relatively low intensity. The evidence indicated that there ".a.~:~ little in the way of intensive interaction. Generally, the grievor worked on her own. 14 Moreover, all that Mr. Manarin was in a position to pas's on to his fellow panelists was his observation that the grievor performed at a superior level in the clerical job to which she was assigned. He was not in a position to pass on any information regarding the grievor's qualifications and ability to perform a higher level - of wo~rk such as that assigned to a Financial Analyst. To find that out, it would have. been necessary to consult the grievor's personnel file and obtain from Ms. Eibl, her long-time direct Supervisor, a report which might hava illuminated qualifications and abilities which the grievor possessed but xhich were not necessary to be used in tha performance of her clerical ,duties: In short, without making this kind of inquiry, the panel could not have been sure of its judgment that the grievor possessed no more familiarity with ,,accounting principles‘%han those book-keeping skills essential to her clerical function.. This omission raised,great potential for prejudice. The evidence tended to indicate that because the.panelists knew the grievor was an Accounting Clerk with the Ministry, the grievor was '*pegged" as a clerk, as a person who had no more familiarity Hith general accounting principles than a clerk. The evidence of -both panel members who testified, Mr. Manarin and Mr. Punch, confirmed that this WaS the view taken of,the grievor. When .reviewin,g the answers given by the grievor and the successful . 13 interview, Mr. Manarin constantly commented~ that the grievor's answers demonstrated her clerical background. He said that it was clear to him that in each category there was a strong indication of the grievor'~s background in the clerical function. The grievor was, Mr. Manarin said, "a very efficient Clark, but sh2 had a deficiency in what w2 were looking for." Similarly Mr. Punch referred to his experience with the grievor as showing that she was a good clerk, a superior clerical staff. He, too, perceived the :grievor's responses during the interview to b2 what would be expected from a clerk. Even on th2 cas2 study, where the grievor and the successful lncumb.ent received the same mark upon the merits of their answ2rs.:Mr. Punch found in his tastimony'reason to differentiate~on the basis of the grievor's~'status as a clerk and the successful incumbent's status as an accountant. .;'. ..,, Review of the personnel file of the grievor .'and a report from her imr.ediate supervisor might have shown.that the grievor had much more familiarit~y~:~Cith general accounting principles than that with which she was credited. There was 'a real pot2ntiai.for prejudice to her~candidacy. Accordingly, it is ths finding of r 1 the -Board that the failure to review the grievor's .personnel file and 'obtain a report from her supervisor were flaws which we're fatal .to the fairness of the'selection procedure, and as a result the competition must be invalidated. At the sa,me time, iwe decline to award the grievor the job without a further competition. This is a case where we musr. heed the oft-cited admonition to be sensitive '~. to .the limits of our institutional competence. Hfre we have a case in which the '~.-.selection must be based in large part upon familiarity with general-accounting principles. This is an area which is b'eyond the expertise of this panel and properly within the province of the prof.essional accounting staff of the Ministry. see generally, R2 Alam and Ministry of Community and Social Serum (1987), G.S.B. #0735/85 (Brandt), at pp. 14 et seq. Accord.ingly. the Board directs~ that the competition .b2 rerun subj2ct to the following terms and conditions: (1) The grievor and the intervener, Mr . Lamothe, shall retain their present positions pfnding the rerun of the competition; (2) The interviews in the rerun competition shall ta!se place within thirty days from the date of issue of this decision to the parties; 1. (3) The selfction panel shall consist,-of four persons, none of whom shall have participated in the original 1ntervlfws; (4) Prior to the interviews, the panelists shall revi2w the personnel files and performance appraisals of the calididates . In addition, they shall.reviev a wr-itten report prepared by each internal candidate's supervisor which evaluates the candidate's qualifications and abilities; .~.. (5) The-experienca of Mr. iamothe as a Finance Analyst since the original interview shall not be taken into account: (6) All.~other relevant criteria shall be considered by th2 panelists; (7) All of the candidates who were interviewed in the first competition shall be invited to..participate in the rerun: . (8) This pan21 shall retain jurisdiction pending th? determination of the n2w selection panel. .,I. . . DATED at London, Ontario, this 23th day of April D. Wallace, ~~~~~~