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HomeMy WebLinkAbout1987-2418.Nixon.88-11-16. . . . ,i i I ONTARIO ’ EMPLOYES DE LA CO”RONNE CROWN EMPLOYEES DEL’ONThWJ i 1, . GRIEVANCE COMMISSION DE SETTLEMENT RkGLEMENT I BOARD DES GRIEFS Between: 2418/87 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING.ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (n. Nixon) Grievor Before: For the Grievor: - and - The Crown in Right of~Cntarin (Ministry of Traa$portation) Employer For the EmDlover: Hearinus: B.B. Fi+.hek J.D. McManus D.C. Mont.rose Vice-Chairperson Member Member _. .v U. Rothstein counsel Fowling fi Henderson pr- *isters and Snlicitnrs D. Rradshaw Human Resources aranch. Mjnistry nf Transpnrt?tinn DECISION This is a job competition case. The position being applied for was a Field Office Dual Clerk in the London office of the Ministry of Transportation and Communications. A copy of the competition ad is attached as a Schedule to this decision. This job involves direct dealing with the public at a local office of the Ministry providing assistance to the public in obtaining motor vehicle registrations, instruction permits and drivers’licenses. . The incumbent, Wanda Urbanowicz, was present throughout the proceedings and was advised of her right to counsel and her right participate in the proceedings but she declined to do so, other than testify as a witness. .’ Initially, the Union took the position that there were serious procedural defects with respect to the running of the competition but that the Board should award the position .“. to the grievor and only in the alternative should a re-run of the competition be ordered. However, at the close of the Union’s case they changed their position and.stated that the only defect in the procedure had been remedied as a result of the introduction of certain evidence during the proceedings, which will be explained later, and therefore, they were not asking for a re-run of the competition anymore, but rather stated to the Board that the only remedy they were asking was that the grievor be given the job in question. The Union conceded’that insofar as now.the procedural defects, if any, have been cleaned up: there was no point in ordering a re-run so that unless the Board found that the grievor was relatively equal to the incumbent with respect to the job in question, the grievance should fail. The employer conceded that if the Board found that the parties were relatively ..~ equal, then given the significant difference in seniority between the grievor and the, incumbent, the grievor should get the job. Therefore, the task of the Board was to determine, based on the evidence before it, whether or not the grievor was relatively equal in skill and qualifications to.the incumbent. I , I -2- As is usual with these cases, there was an,extensive oral interview and a scoring of the answers. The employer based its entire decision on the interview scores and therefore, it is important tb examine the actual scores to see if they merit a decision that the parties were or were not relatively equal. The raw score of the grievor on the inteniew was 101.8 and the raw score of the incumbent was 120. The total score possible on the interview was.165 The employer took the position that a difference in scores between the parties of more than 10% means that the parties are not $atively equal and therefore, they compared the raw scores of the two candidates and determined that the differential was -1S.2 points. They then applied this differential of 18.2 points as’s percentage bf the lower score, that is the grievor’s score of 101.8 and determined that there was a differential of approximately 18%. ..: It would appear, however, that there would be two other methods by which the parties could have determined the percentage of differential and they are as’follows: 1. One could, again, compare the raw scor&but apply the differential to a percentage not of the lower score, but bf the higher score. In other words, determine the perce.ntage that 18.2 is of the higher score of 120 and that would produce a percentage differential of approximately 15%; 2. The Union states, however, that in order to determine the proper meaning of “relative equality”, we should compare the scores, not on a simple basis of looking at the raw scores in relation to each other but rather, the percentage score ins relation to the~overall score. In other words, the grievor scored 101.8/165 which produces an average of 61.7% and the incumbent, having obtained a score of 120/165, obtained an average of 72.7%. This shows only a 11 point differential when you compare the.scores of the paities against a standard. -3- It would appear that there is no case law specifically on point as to how to compare these percentages and at first blush, it struck the Board that the Union’s proposition of comparing the scores to a similar standard, that is, the highest possible score was the approprtate way but on reconsideration, the Board finds that since the determination we are to look at is that of relative equality, it makes more sense to compare percentages as between the two parties only and-to disregard the standard or top score. The reason for this rationale is as follows. If we assume a hypothetical in which the top interview score was 500 and one party obtained a mark of 50 and the other party obtained a mark of 90, then if we apply the Union’s logic, the person obtaining a score of 50 would have a percentile rating of 10% and the person with the raw score of 90 would have a percentile score of 18% thereby showing only an 8% differential between the parties and therefore, arguably relatively equal. However, common sense tells us that if someone got 50 on a test and the other person got 90 on the test, then the person who got 90 did almost twice as well as the other person and they cannot possibiy be relatively equal. Therefore, with respect to how to compare scores of a mathematical nature either as a result of an interview or any other basis, this Board finds that the appropriate method of comparison is to compare the relative scores of the parties between themselves and not to compare it to an overall standard. The question as to whether the percentage differential should be based on a percentage of lower score or a higher score, however, is not being decided by this Board at this time. Ifthis case were to end here, given the Union’s position that they were not objecting to the procedure, the Board would have been inclined on the basis of either a 15% or 18% spread that the parties were not relatively equal. However, the case does not end here because the selection committee failed to properly consider an extremely important aspect of this case, namely, the performance of the grievor during a secondment. The incumbent, -4- prior to obtaining this position worked in another Ministry in a clerical job but obviously one quite different to the position that she ultimately obtained. The grievor, on the other hand, although he had a, varied career in different jobs.,Fthin the Ministry had performed the actual job in question on a six month secondment shortly before the competition. Furthermore, a supervisor of the grievor, Mr. Nitch, produced a report for his supervisor, Mr. Home, dated 1987/06/02 setting out an assessment of Mr. Nixon’s performance while on the secondment for the job in question. The assessment sets forth in detail the various and numerous tasks that were performed by Mr. Nixon during his secondment and although they do not encompass each and ever): aspect of the job, they certainly indicate that he performed a large number of the aspects of the Field Office Dual Clerk. In addition, the last paragraph of the memorandum contains this vety favourable -. comment, ‘7 found Mr. Nix&z to be punctual, reliable and able to handle his work in a competent manner and would call on his services withbut hesitation if the need arose. ” Surprisingly enough, the selection committee totally and utterly ignored this letter in assessing Mr. Nixon. In fact, the only consideration given by the selection committee to the fact that Mr. Nixon had performed.the job in question for six months was that it qualified him to get an interview, but other than the fact that it may have assisted him in answering the interview questions, they gave no consideration to it whatsoever. ’ Again, notwithstanding the .- numerous decisions of this Board telling a selection committee that part of the selection process is to interview the parties’ supervisors, the selection committee chose only to conduct a reference check on the incumbent and only after they had scored the interview. They specifically only contacted her supervisor in an effort to verify their finding that she was the superior candidate. Having reviewed the reference check onthe incumbent, the best that can be said for it is that it is no better than the grievor’s assessment. -5- This Board finds that the failure of the selection committee to consider the assessment of Mr. Nixon in his secondment to be a serious matter and had they done so, like the Board has now been able to do, they would undoubtedly have realized that the difference in qualifications between the candidates was much less than would appear to be from a mere comparison of the mathematical difference between the interview scores. When one looks at the entire picture, being the interview scores and the assessment of the grievor’s performance on secondment, it is clear to this Board that Mr. Nixon was at least relatively equal with respect to his qualifications and abilities to perform the job in question and since he had higher seniority than the incumbent, he should have been appointed to the position of Field Office Dual Clerk at the time of the original competition. An issue was raised by the employer on the first day with respect to the fact that the grievance itself does not ask for an award of the job to the grievor but only that the competition be re-run, however, Union counsel made it very clear on the first day that she was seeking an order to award the job to the grievor and since a lengthy adjournment was granted between the fist and second day of this hearing, there cannot be, of course, any prejudice to the opposing parties as a result of this change in the settlement desired. Therefore, the grievance is allowed and an order will go appointing the grievor to the position of Field Office Dual Clerk effective the date upon which the incumbent actually started the position. Furthermore, the grievor shall.be compensated for all lost wages and benefits from the date upon which the vacancy Gas filled to the date thaihe assumes the position. This award is to include interest as calculated according to the previous decisions of the Grievance Settlement Board. The grievor’s seniority in this position shall be deemed to commence from the date in which the vacancy was originally filled. This Board retains jurisdiction if the parties have any problems in either determining the appropriate amouiii of -_ compensation or problems in implementing this award. s 16th dayof November, hairperson *I-L /h&4 J. McManus, Member 1988. :.+- ,, M),nisiry ol ,. Trapsporl,alion and “Schedule” LOCAL AD ,.,/. EXHIBIJ~~~, Co’h+nicalhns COMPETIII~N ..No. I lll31iO S/W 87-60 CI.lJSItic DATE: October 2, 1987 11s COHPETITION IS OPEN TO CLASSIFIED AND UNCLASSIFIED STAFF OF THE ONTARIO PUBLIC SERVICE, tOUN EhlPLOYEES, AND THE PUBLIC WITHIN COtDBJTINGDISTANCE OF THE LONDON DISTRICT OFFICE. TITLE: FiELD OFFICE DUAL CLERK SALARY: $11.91 - $13.24 per hour SECTION: Drivers and Vehicles BnArrCIi/REClON: Souchvester” Region SI’ECIAL NOTE: CLASSIFICATION: Office Administration 8 SCHEDULE: 387 OFFICE: London LOCATION: London District 1 Clearance UP 4602 fE JOB: s a Field Office Dual Clerk, you will serve the public in their endeavours to obtain metor chicle registrations, instruction permits, and drivers’ licences, as veil as perform other elated clerical work. Duties include: examining and assessing applications and supporting documents for vehicle registrations, nstructional permits, and driving licences, ensuring accuracy, completeness, and validi,ty to eet prescribed legislation, standards, and policy, eg. requirements for insurance statements, ertificaces of sale, mechanical fitness, custom clearance, reciprocity privileges, procedures egarding health, disabilities, vision standards, etc. conducting and assessing results of driver vision and written teats, deciding if pass or ailure according to prescribed standards; performing photo-on-licensing duties; explaining reasons for rejecting applications and test failures and providing advice as to emedial action necessary to meet requirements, eg. affidavits required, referring to notaries ,ublic, vision specialists; answering enquiries in’person or by telephone concerning the various requirements for vel-.icle egistrations, d$iving’licences and tests, eg. sales tax p,a)me”ts, class of vehicles, age esrrictions, demerit point system, re:instatements; determining and collecting fees and issuing receipts appropriate to type of service rendered; ,reparing reports of daily transactions and compiling bank deposit documents; -transposing and typing information on to appropriate registration forms, instruction persits, !riving licences, etc.‘, requiring attention to derail, a high degree of accuracy and reasonable yping speed; xecording appointments for driver examination road tests, ensuring against double bookings, :llswing for cancellations and arranging for .unwarranted lapses in schedule; -maintaining stock of permits, applications,.pamphlets, etc., filing documents. XE CANDIDATE: lust Have ‘I’ -demonstrated responsible clerical experience. Zhould Have >I -a uorking knowledge of legislation, policy, and procedures relating to vehicle I:STEIW+OI:S ~TC’ APPLICAGTS: - -. Cont’d on Back... o ensure maximum consideration of your nppllcntlon, please respond asfollov~: Apply by submitting a completed Ontario Public Service “Application for Employment” Fo:::. 540-1062. Submit a completed “Application for Fnlployment Attacl~mcnt” Form ADil-P-25. On this form esrond in nertinent detail to Tlte Candidate ElUST.5 and SIIOULDS listed’above. Explain wl!ere . . . Shwl 2’ Ueve Cont’d. .’ reEistl;rio?, driver licensing, and testing; BI- - th= ability to maintain awareness and apply current and new legislation, policy, and procedures pertaining to vehicle registration, licence issuing, and driver testing; Cl -initiative in organiring and completing work assignments with a minimum of supervision; 31 - the ability to make rapid and accurate mathematical calculatioas and to prepare and nacntain clerical records; Cl -the ability to adapt io use,of a typewrite’i and to successfully function in an environment dhere detail, accuracy, and reasonable speed are of prime importance; iI -ability to communicate tactfully, diplomatically, and authoritatively with members of the +b?i;, ;]. -uillinEaess to accept responsibility to cash.