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HomeMy WebLinkAbout1987-2238.Sahota.88-12-14223%/%7 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: Before: For the Grievor: For the Employer: Hearings: Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (T. Sahota) and The Crown in Right of Ontario (Ministry of Government. Services) M.V. Watters Vice-Chairperson G. Nabi Member M.F. 0"Toole Member M. Ruby‘ Counsel ~; ' Gowling & Henderson Barristers and Solicitors M.E. Cummings Counsel Mathews,~ Dunsmore, Dinsdale & Clark Barristers & Solicitors July 18, 1988 November 3, 1988 Grievor Employer ._..,.,. Z. . . . Thi ., Sahota dat s proceeding arises from the grievance of Mr. J. S. ed October 8, 1987, in which he alleged that.he had the position of El.ectrical Inspector in 159. This position was for the London been improperly denied competition number GS- District of the Realty Ministry of Government aforesaid competition, Group-Property Management Diviiion in the Services. At all times material to the’ .,. the grievor was employed as a Maintenance Electrician at th,e E~lgin-Middlesex Detention Centre in London, ~ Ontario. This facility is administered by the Minis.try of Correctional Services. The gkievor has worked at the centre for approximately eight years.’ He .feceived his provincial qualifications as a Journeyman Electrician in 1979 md.had previously obtained a similar certification in England in 1969. His .resume, which was filed with this board as Exhibi.t ‘S’, documents a varied work experience. We would describe .such work as being,primarily “hands-on” with an emphasis towards the installation, maintenance and repair of;electrical equipment. The posting ‘for th’is competition read as follq,w:s: “Required by the Ministry of Government Services, Property Management Division, London District. Y 0 u w i 1 1 : -.: :;; arrange for and inspeLt the installation, repair and renovation of fire alarm, electronic and electr..icai The posting.‘generated seventeen (1.7.) applica,t~ions for the Pas i to i tion. After some initial pre-screening, a--d’ecision was taken nterview ten (10) of the applicants. Applications and systems and equipment at Government owned and leased buildings/facilities throughout the District; prepare preliminary sketches, estima~tes and scopes of work to be used for preparation of tender documents;‘arrange pre tender site meetings; ensure adherence of electrical installation work to con.tract documents, by-laws, codes and regulations; conduct final inspections of completed projects; assess useful life of all electrical equipment and sys terns. QUALIFICATIONS Valid Electrician’s Certificate of Qualification. issued by the Province~of Ontario. Good knowledge of electrical systems, relevant codes and regulations. Ability to inspect work ca,rried out by contractors and prepare related reports.. Good communication skills. Valid Class G Driver~‘s .Licence.” Exhibit 10 resumes were reviewed’by the panel established to administer the competition. The grievor did not submit a formal application form or resume at the commencement of this competition. Instead, he applied by way. of a letter dated June 9, 1987, Exhibit Ill’, which generally served to outline his qualifications for the job. It also included a brief description of his current responsibilities. The grievor stated therein that “On numerous bccasions I have prepared sketch&s, estimates and scopes of.,work ;.. - for contract documents, and carried out final inspections;” ~^I i Interviews’were conducted on July 15, 16 and 20, 1987, by a panel comprised of Mr. Eric Morris, Project Manager; Mr. John Harrison, -2- to whom the succ.e.ssful candidate would report; and Mr. T. Boniface, who was then an Electrical Supervisor in the Operations-Maintenance section. This latter gentlemen was the sole electrician on the panel. It was agreed that of the three panelists, he possessed the superior technical expertise. An Interview Schedule Sheet, containing twenty-three (23) questions, was prepared for purposes of this competition. The questions selected~ had apparently been~employed previously in other similar competitions within the District. Que~scions 1 to 16 inclusiv~e weie under the heading ‘Technical’; questions 17 to 21 were related to ‘Inspections’; and lastly, questions 22 and ,2-3 focused on ‘Good Communicati~ons Skil,is - Oral’- ~Written’. The interview sheet indicated the suggested answer and had a space for the recording of the,ca,<didate’s ‘response. It also 9howe.d r;- .~ the marks assigned for each ~question and, had a further area ii which the interviewer could note the specific particular candidate. Each of the interviews approximately thi,rty to forty-five minutes, w i marks assigned to a lasted th each panelist asking a block of questions from the interview sheet in chronological order. The panel endeavored to individually record the answers given. While th~ere is some .confli~ct in the evidence as to whether they each assigned a sepirate grade for each question, it is clear that at the conclusion of an interview they considered the answers recorded and their recollection of same, -3- in order to arrive at a group or’?onsensus score for all answers provided. The consensus scores were subsequently noted on Mr. Morris’ interview sheet. As is stated below, it is important to note that the only sheets filed with this board at the hearing we.re those of Mr. Morris in respect of the grievor (Exhibit ‘13) and a Mr. Szabo (Exhibit ‘14’). For reasons which were not made entirely clear, the remaining sheets were forwarded to the Human Resources Branch in Toronto after the competition and were not retrieved for this arbitration. A dispute arose at the heaking as to whether the panel had actually reviewed a package of materials brought to the interview by the grievor. This package included references from fdrmer employers and his trade certifications. The grievor testified. that the panel. declined to look et this mZ.terial. It w..as ‘-the evidence of Mr. Morris that the package was-reviewed by each of the panel at the conclusion of the interview.and. then returned to .the grie.Var. We do not think that anything tu’;ns on this discrepancy. nowever, from an assessment of all of the evidence presented, we believe it more likely than not that the gri‘evor was mistaken in his ;ecollection.- The .top six (6) candidates at the end of the cntervie” process “erg as follows: . . - .-4- :.. : 1. 2. 3. 4. 5. 6. Mr. Ox-set-......,..7 1 out of 100 Mr.. Szabo ..... :..6 8 out of 100 Mr:.--Irving.. .... .63 out of 100 Mr .- Reynolds.. . :. 61 out of 100 Mr. Sahota.......LB out of 100 Mr. Edmonds...... 40 out of 100 The panel then arranged for the checking of references for the top three applicants. Of this group, only Mr. I.rving was from the bargaining unit. The remaining candidates, with the exception of Mr. Reynolds, fell within the bargaining unit. The*’ positions we,re~ ultimately filled b’y Mr. Irving and hr.‘Szabo. Mr. Orser apparently received a promotion from his ‘employer immediately after the refer~ence check and for that reason declined the offer extended to him. The panel did not’ consult ‘... with the’grievor’s supervisors after the interview. -In the words of. Mr. Morris, only the “successful candidates” were referenced. . ‘, The panel also did not resort to the personnel files of any of the candidates interviewed. It is-necessary at this ju?cture to review in greater detail certain aspects of the competition that was generally described above. As noted, the panel elected not to review the /- personnel files of the persons interviewed. With respect to the -5- grievor, his file contained, inter ali?., the following ,;. information: (i) a series of favorable references aris.ing from his pre-government employment (Exhibit.‘6’); (ii) attendance records relating to his employment-with the Ministry of Co~rrectional Services. These disclosed tha.t in eighties years, the grievor had missed four to five days of.work in total. This record was the subject of positive comment by the Attendance Review Committee in 1982, 1983, 1985, 1986, 1987 and 1988.- (-Ex;hibit ‘7’); (iii) his two most recent performance appraisals, both showing satisfactory performance of duties assigned (Exhibits ‘8’ and ‘9’); and ,I (iv) his. resume .(Exhibit ‘5’). i Both Mr. Morris and ‘Mr-.‘- Harrison commented on this failure and provided reasons for not reviewing the personnel files. The former stated that he was trying to be fair to all of the candidates and that-he wished to treat them all equally. He was concerned that some prejudice could be occasioned to the external candidat&~ if their records were not kept as comprehensively or accurately as those maintained within the publ-ic service.. He also quaered whethe~r ‘r,ecords.of other ministries could be accessed for competition purposes,. The latter indicated that within the context of. approximately sixty prior competitions, he had never before looked at the personnel fil,ee. of bargaining unit staff. While admittin,g to an awareness of the ,jurisprudence of the Grievance Setfl~ement Board on this practice, Mr. Harrison -6- st.ated that it wasn’t his ministry’s practice and “we didn’t have to do that.” The panel at the conclusion of the interviews determined that the grievor, by virtue of his score, did not possess the required level of competence to function effectively as an .~nspector. Mr. Morris stated that an ~applicant would not be considered fbr the position unless .they achieved a score of sixty marks. He speculated that if forty-eight had been the highest score assigned, then the. competition would have’ been re-run. Mr. Morris and Mr. Boniface both testiif’ied that in their es:imation .t&e. grievor had not demonstrated sufficient technical skill to perform the “expert” tasks demanded of an inspector. Generally, they categorized his prior experience as excessively narrow. ,In their opinion, his previo;s work history was lacking in the areas of inspection end contract administration. These witnesses -.pe,r~ceived thes,e areas as core elements of the job applied for. In summary; they appeared to cdnclude, that the grievor cduld not ;t.ransfer his skills from the preventCti,$ maintenance sector to the . administration and inspection of new construct~io.n .projects. “The pa~nel members therefore suggested that it was un<ecessary .to review Mr. Sahota’s personnel file or to speak with his supervisors. More spec.ifically, Mr. Morris stated that the grievor would not have been hired even had these items been canvassed. In’ his opinion, the grievor simply lacked the ..- -7- appropria.te technical expertise. Mr. Morris was candid Ian admitting fhat this assessment was based on the answers.received during the course of the interview. Indeed, it was the interview that served to determine who would be referenced and ultimately hired. AS indicated above, the interview sheets of Mr. Harrison and Mr. Boniface were not presented to this~ board. The only documentation provided eo us in respect of the grievor’s answers .’ was the sheet completed by ?ir. ?iorris who had. acted as chair of the competition panel. This sheet; showed the “consensus” scores referred to earlier in this award. Such scores represented the panel’s assessment based on what had been individually recorded and on their respective recollections as to the content of the answer. Unfortunately, Mr. Morris did not summarize on his sheet the tea-sons for the~assignment of the consensus grade. Instead, f;+ it merely reflected his initial comments. Mr. Morris ,i”~dicated ~ in cross-examination that material not found in the suggested answer could be considered in assessing the response and allocating~ a score. Mr. Boniface, in his testimony, suggested that this was limited to the use of language different-from that found one the answer sheet. . The grievor complained that his answers were nbt fully recorded on Mr. Morris’ answer sheet. He testified that. the -6- . . . notations-shown thereon did not represent his “word for word” answers. The grievor expressed the -opinion that the answers recorded constituted a “shorter version” of what was actually said. We were invited to conclude, therefore, that he may not have received credit for parts of his answers which had not been recorded. Mr. Morris, in his response, claimed that all a&wers “pertinent” to the question were definitely recorded. He stated further that “off-topic items” would not have been noted. The position of the union was two-fold. First, it was submitted that sufficient evidence had been adduced to show ~that .~. Mr. Sahota was relatively equal to the fwo.incumbents in respect of his qualifications and ability to perform the required duties of the job in question. Consequently, ve were urged to award him the, position of Electrical Inspector in view of his greater seniority. Article 4.3 of the collective agreement was relied on . -;,>;., :;:. ,. ~.. in this regard. Alte.;natively, it was argued that the ::;::.,, competition was seriously flawed and should be re-run. In support of this subm,ission, it was noted that the grievor~.‘.s personnel file was not reviewed and that his supervisors had not been consuited about his suitability for the position. ._ Additionally, the union suggested it was improper to utilize the ,interview as the sole cr~iterion -for. detcrminirg the successful candidate. It was further submitted that the questions asked fherein were insufficient to allow for a full assessment of the r- -9- grievor’s ability to perform the range of functions refe~rred to in the position specification. Counsel suggested that, in the circumstances of this case, a written “test” might have been more appropriate. The following authorities were relied 6n.i” support of the argument that the administration of the present competi~tion was contrary to standards established by the Grievance Settlement. Board: OPSEU (Clip,perton) and MCSS, 2554-87 cwatters;; OPSEU (Worsle‘y) and MGS, 347/81 (Draper); OPSEU (Poole) and MOH, 2508-87 (Samuels). In response; the employer c!o”cede,d that the competition may not have been administered in strict conformity with the jurisprudence relied on by the union. HOWeVer, it was submitted that the process used was more than sufficient to produce information that could lead the panel to properly Conclude the grievor was not relatively equal to the incumbents. Counsel argued that the results of the interview clearly demonstrated , that the’grievor did not possess the technical abiIity to perform the job. She there~fote suggested that a review of the personnel file or a consultation with the grievor’s supervisors would not have advanced Mr. Sahota’s intete’bts. Counsel also alluded t6 the practical difficulties that might arise in attempting to ‘access the personnel files of applicants f,rom other ministries or. from outside the bargaining unit. Give” this possibility, it wars submitte~d that it was both reasonable and fair to disregard the -IO- 1’ : -: personnel files. Lastly, the employe’r denied that it had relied exclusively upon the’ interview to determine the result in this competition. The evidence indicated that application documentation was considered and that the top three candidates were subject to a reference check. In summary, the primary position of the employer was that the competition was not significantly flawed and‘therefore its result should stand. Alternatively, if the board were to f,ind it flawed, the employer urged us to order a re-run rather than to award the position to the grievor. This secondary position was premised on the .a.,. submission that insufficient evideince was before this board...to establish the grievor as being relatively equal to the incumbents. The award in OPSEU (Moore) and MOT, 1051-86 (Watters) w& relied on by the employer. +. Article 4.3 is the provision of the collective agreement relevant to the resolution of this grievance. It reads: “In filling a vacancy, the employer shall give primary consid.eration to qualifications and ability to perform the required duties. Where qualificatiops and ability ar~erelatively equal, length of continuous service shall be a consideration.“,. . AS stated by the board -in Clipperton, numerous panels of the.- Grievance Sertlement~ Board h,ave had the opportunity to interpret and apply the above-cited article. Clear standards have been established for the parties, both as to the essential elements of -i I- .- a competition and as to what effect should be given to greater seniority. The award in MacLellan and DeGrandis, 506, 507, 690, 691-81 (Samuels), summarizes the criteria established by which assess a competition. These were stated as follows: ” I . Candidates must be evaluated on .811 the relevant 2. qualifications for the job as set out in the Position Specification. ;:. t . . The various methods used to assess the candidates should address these relevant qualifications insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifications. 3. 4. : :+rrelevant factors should not be considered. * All the members of a selection committee.shou,ld review the personnel files of all the app~licants. 5. The applicants’ supervi.sors should be asked for their evaluations of the appIicants. to 6. Information should be accumulated in a systematic way concerning all the applicants.” (Pages 25-.?6) After considering the totality of the evidence, it is 9u.r - jud.gment that these standards were not met in this case and that as a consequence the competition must be described as.‘seriously flawed. We have arrived at this conclusion for the following reasons: 1. The panel conceded that it did not review the’personnel files of any of the applicants, including that of the % grievor. Indeed, as noted above, Mr, Harrison~ stated that.it was not this employer”s practice to consider such, information. He also expressed the opinion that “we didn’t have -to do that.” With respect, we disagree with such opinion. Numerous decisions of this board, including MacLellan and DeGrandis and Clipperton have declared that in competitions of this nature, the employer must review and consider personnel files. Simply put, this is to ensure that they direct their attention to the~applicant’s qualifications and ability to perform the duties of the position sought. If such a+l investigation is not under- taken, the employer will not be able to fully or properly assess what effect should be given to the applicant’s length of continuous service. Viewed from another perspective, the rights of members of the bargaining unit to benefit from their greater seniority may be prejudiced if the employer does not direct its mind in a comprehen- sive fashion.to those factors identified in Article 4.3. It is no answer, in our est.imatio”, to assert that a search of personnel files was snot done in order to prevent prejudice to ex&ernal applicants. Such a” approach taken to the extreme would permit the employer to disregard the personnel files of bargaining unit members in any open competition in-which a single. external candidate was accorded an interview. We have certainly not been persuaded that either the collective agreement, or the interpretation placed the&o” by prior panels of this board, contemplates such a result. Similarly, the employer argued that it might encounter some difficulty in accessing personnel files contained in the offices of other -ministries. We have no evide”c.e before us that such difficulty surfaced here. To the contrary,. the request for this source of. information was not eve.” made. In any event, we think that th.e obIigation to consuIt ” personnel files’ cannot be restricted to-competitions in which all applicants emanate from the same ministry~. Rather, we find that it extends to personnel files within the_public service as a whole. 2. The panel also conceded that.it did not consult the grievor’s supervisors in the course of the competition. Such failure, as in the case of’ the personnel files, served to limit the employer’s ability to assess then grievor’s suitability for the position of Electrical Inspector. The omission here was of some significance in that the grievor in his letter of application claimed to ha-ve performed some work of the type that would be undertake” in the position being considered. The panel did not question him ‘on t’ii‘i% statement. Notwithstanding this fact, they concluded that he did not possess the requisite expertise. In .oLr opinion, this was an ‘area chat should have been canvassed with the grievor’s supervisors, as they would have been ideally placed to comment on the nature and extent of his responsibilities at the Detention Centre. I” this respect, this case is > -13- distinguishable from the “rather unique circumsrances” found in Moore, in which the board found that a similar failure to consult with supervisors sh,ould not serve to abrogate the decisionCof the panel. In that arbitration, the board was confident that such consultation would not have materially augmented the information already before the panel. In our judgment, the same cannot be said here. 3. As mentioned above, the.aployer’s position was thst resort to the personnel files and to the supervisors,was unnecessary as the interview demonstrated the grievor’s lack of. ability for the job. This~position seems to assume th;it’the interview alone was sufficient to allow the panel t~6 make the. as,sessment called for by Article 4.3. Indeed, from the evidence presented, we have no doubt whatsoever that the grievor’s failure in the competition was based entirely on his performance in the interview. The assumption just alluded tp is contrary to the underlying premise of the jurisprudences cited by the union. Those awards suggest that questions relating to qualifications and ability are best resolved through recourse to a number of informationa. sources in addition to the intervi’ew. In Poole the selection panel relied exclusively on ansF;iven to a series of questions without regard to information available from appIicat.ion. forms, personnel files, or supervisors. The board f.ound such policy to be “incomprehensible” and “entirely inadequate”. Further, it concluded that “there must be a full gathering of information concerning the qualifications and ability of the applican.ts. It is simply not.satisfactory to consciously ignore information as was done here.“’ We agree with this assessment. In our view, the failure to gather and consider this additional information constitutes a violation of Article --:, 4 . 3 . 4. This board is also concerned about the scoring of the ; .~. competition. As indicated, the panel adopted a “consensus” approach. Each panelist initially made their own notes of the answers gi,ven by the persons interviewed. There is some dispute as to whether they also determin~ed a preliminary score for each question. Mr. Morris and Mr. Boniface denied that this was done. Mr. Harrison; however. asserted that he scored each answer and that his scores “were very close to the others.” His recollectC,on obvious.ly .was that his co11 eagues had similarly scored the answers. What is clear is that at the end of each interview the panel discuss ed the merits of the answers provided by the candidat?. This discussion focused on -14- their recorded answers, and on their recollection of what had been said. Thereafter, they assigned the consensus score for each question. These scores were inscribed onto Mr. Morris’ interview sheet, ~which was filed as Exhibit ‘13’. Unfortunately, as noted above, we were only provided with Mr. Morris’ scoring sheets in respect of the grievor and Mr. Szabo. We were not given his sheet for the other incumbent nor’were we given any of the sheets completed by the other panelists. This we find to be a significant omission, for it does not permit this board to assess the ent.ire basis upon which the consensus score was assigned. By way of example, in respe,ct,~of the grievor, we received only one of three interview sheets. ‘This might not be material had the chairman of the panel recorded the relevant portions of his colleagues’anSwers that were not originally noted on his sheet. This, however, did not occur here. It is clear to the board that the answers recorded on Exhibit ‘13’ may not reflect the ,total answer given by’the grievor. To assess the total answer given, one would need to review the~answers recorded by all three of the paneIists. We furth.er noted that’Mr. Morris was extremely vague and uncertain the reason for variations in scores between Exhib and ‘14’. Similarly, he was unable to shed much ; why marks were given or withheld in respect of pa r answers with which he was confronted. Mr. Mo’rris stated that material beyond that contained in the as to tS ‘13’ ight on t icular also suggested .answer could be considered in the assignment of the consensus score. Wot being in a position to review all of the score sheets, we~are unable to determine the extent to which this was done. More imp~ortantly,, we are unable to evaluate the, accuracy of the consensus score. In summary, this board is severely handicapped by not having all of the relevant evidence before us. If the employer wishes to adopt the consensus model, it is incumbent on it to provide all of the score sheets should the matte.= proceed to arbitration. Its failure to do so in this case raises some doubts as to the reliability of the scores presented. This may also be the reason for the grievo.r,,@s complaint that his answers did not appear to have been recorded in their entirety. The board has carefully reviewed the job posting; the ~. 1 ‘:~-posit~ion specifications for Electrical Inspector; and the interview sheet which was utilized in the competition. We have -15- concluded therefrom that both the posting and the questions asked reflect the range of responsibilities as contained in the specifications. In this regard we have noted the grievor’s statement that with one exception the:questions were “good questions”. He also agreed that they related to the job to be performed. We have not been persuaded that a written test would ~. have been mote appropriate for use in this competition. Ultimately, we find th,at the flaws in the competition dictate that it be re-run. This is not the case in which to award the grievor one of the contested~positions. We so conclude because there is simply insufficient evidence before us to .,. -~ properly determine whether the grievor is relatively equal in qualifications and ability to either of the incumbents. The -. incumbents were present during the proceedings and klere advised of their right to fully participate.. They did no.t choose to present any evidence on their own behalf nor were they called as witnesses for either the union oFthe employer. We were not able therefore to assess them first-hand. Additionally, with the exception of Exhibit ‘14’ relating to Mr. Szabo, we were not provided with the interview sheets for these incumbents. Given the practice of the emplbyer, the board was also...+~pt in a position to review the content of their personnel files. While th.ese circumstances may raise certain questions as to the nature of the evidentiary,onus in proceedings OF this type, we do not ., -15- think that this case should be resolved on that basis. Rather, we find that the preferable course of action is to order a re-run of the competition subject to conditions outlined below..’ This will hopefully ensure that the next competition is administered within the -standards previously established by the. Grievance Settlement Board. The conditions are as follows: 1. 2. 3. 4. 5. 6. 7. It should be re-stricted tb the grievor and the .-two incumbents; .,.. The~selection’panel should not include any of the three individuals who conducted the process which we have found to be flaved; The process should be commehced within thirty days of the issuance of this award, subject to mutual agreement as to the extension of time; A fresh set of questions should be prepared for the interviews which reflect the position specifications as of the date of the last competition; The -selection panel is co review the personnel files available in respect of the grievor and the incumbents. Additionally, the supervisors of the candidate& should be consulted with respect to their past experience and suitability for the position sought; The selection panel is to discount th.e experience gained by the incumbents since their appointment to the contested Electrical..Inspector pF:.zition; ~~ The selection panel is to develop and employ a scoring system consistent with the Yenor of this award. The reasons for assigning par,t-i.cular gra$es to specific questions are to be recorde’a on tliescoring sheets. Such sheets ar.e to be secured such that they may be available for any future proceedings..,. The grievance is therefore allowed in part. We will _, - 1,7- retain juri sdiction to resol ve any difficulties that may develop in the imp1 ementation of thi s award. DATED at Windsor, Ontario, this liith day of December , 1988. / ,I, ,:,c.jn-i L’ iLLl:Et&b M. V. Watters, Vice-Chairperson ..- /,.:: ,r ,4 M. O’Toole, Member- ,: -13- ‘- ’ ” ” c