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HomeMy WebLinkAbout1990-2503.Katsuno et al.91-05-22 DecisionEMPLOYES DE LA COURONNE DE RIO DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, M5G 1Z8 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G (4 326- 1388 : (4 326- 1396 2503/90 IN tge MATTER OF AN ARBITRATION Under the CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before the GRIEVANCE SETTLEMENT Board BETWEEN OPSEU (Katsuno/Lacroix/Lucas) Grievor The Crown in Right of Ontario (Ministry of Health) Employer BEFORE : FOR GRIEVOR FOR THE EMPLOYER BEARING M. Watters J. Carruthers D. Montrose Vice-Chairperson Member Member A. Ryder Counsel Ryder, Whitaker, Wright Chapman Barrsiters Solicitors M. Failes Counsel Winkler, Filion & Wakely Barristers & Solicitors May 3, 1991 This proceeding arises from the grievances of Mr. R. K Katsuno Mr. ii. Lacroix, and Mr. B. Lucas all dated December 6, 1990 The grievors alleged therein that the selection process in respect of competition # HL325690 was not impartial. They asked that the competition be rerun with a new panel. All of the grievors are Ambulance Officers with the Orillia Ambulance Service. They are each classified as an Ambulance Officer 2. The competition here in issue concerned two (2) new positions classified at the higher Ambulance Officer 4 level. These positions required the exercise of additional administrative and supervisory duties. The Employer initially intended to limit interviews to six (6) civil servants who were deemed qualified. Interviews were scheduled to assess their relative merits. These interviews were subsequently cancelled when complaints were received from non civil-service candidates who wished to be considered for the positions. The Regional Manager ultimately decided that these candidates would be included in the interview process. The present, grievors were interviewed by a competition panel on or about November 19 1990 The panel consisted of Mr. B. Higginson Manager of the Orillia Ambulance Service, and Mr. B. Fawcett and Mr. R. Whiting. Mr. Fawcett was the Manager of the Georgian Dispatch Service in Barrie, Ontario. Mr. Whiting was an Assistant Personnel Officer with the Human Resources Office in 1 Penatang Ontario All of the applicants interviewed were also required to complete an essay questions relating to disaster management’. the grievors were advised that they were not selected for the positions on or about November 23, 1990 The competition panel unanimously selected Mr. H. Clements and Mr. H. Simpson to fill the openings. These gentlemen attended at the hearing but elected not to participate in same. Each grievor was called to present evidence at the hearing. Mr. M. Lowell, the Unit steward also testified on behalf of the Union. The sole witness for the Employer was Mr. Higginson. The ev i dence adduced i s summar i zed bel ow. Each grievor testified that they informally heard they would be interviewed for the position prior to the receipt of written notification of that fact. Mr. Katsuno was so advised by one of the Ambulance Officer 4’s in the office. Mr. Lacroix obtained the same information during a discussion with Mr. Clements. Mr. Lucas over heard a conversation in which Mr. Higginison stated that only six (6) civil servants would be interviewed. He assumed that he would fall within such group. Mr. Higginson did not dispute this evidence although he could not specifically recall the conversation alluded to by Mr. Lucas. Mr. Lacroix overheard a telephone conversation that Mr. Higginson had while in the crew lounge. He recalled that the 2 Manager then stated that onl y Ministry personnel would be i n terv i ewed , i ncl udi ng one i emp 1 oyee who had been a supervisor, one i who had acted as a supervisor, and one ( 1 with management experience. Mr. Lacroix believed this to be a reference to both Mr. Clements and Mr. Simpson. Mr. Higginson testified that this exchange was with an external applicant who wanted to know why he was not receiving an interview. This person also requested information as to what traits the civil servants had that he did not possess. This request elicited the reference to managerial and supervisory experience referred to above. Mr. Higginson acknowledged that such experience was possessed by the candidates who ultimately were successful in the competition. In preparation for his interview, Mr. Katsuno reviewed a manual of policies and procedures which was available in the crew lounge. He noted that a section relating to ‘Counselling and Discipl ine’ was missing from the manual tie therefore proceeded to ask Mr. Higginison if there was an additional copy of same in the office. The Manager replied that the material was not available. A few days later, Mr. Katsuno repeated his request to Mr. W. Seib an Ambulance Officer 4. It was this grievor’s evidence that Mr. Seib was quickly able to locate the section in question Mr. Katsuno testified that one of the questions in the interview related to the topic of discipline. 3 the Corporate Manual located in his off ice. in any event Mr. H igginson noted that the Ambulance officer 4 was not responsi ble for the adm i n i strat i on of d i sc i p l i ne In the i s regard, he adv i sed that this subject was not addressed in the interview. Mr. I i gg i nson cou i d not recal l the request descr i bed by Mr . Katsuno He conceded it was possibie that such a request was made. The Hi Manager furter testified that the Employer's pol discipline was posted on the bulletin board which to staff. Neither Mr. Katsuno or Mr. Lacroix cou the document at that l ocat i on. cy on was access i bl e d recall seeing Mr. Katsuno claimed that a social relationship existed between Mr. Higginson and Mr. Clements and, to a iesser extent between the Manager and Mr. Simpson. He did not however have any fi rst hand knowledge as to the precise nature of the relationship. Generally, he had heard from others that Mr. C l ements had as i s ted the Manager w i the a move wh i ch occu rred approx imately two (2) years ago. Mr. Katsuno also bel ieved these two 2j gentlemen saw each other social ly outsdie of regular work i ng hours Lastl y , he stated that Mr. Hi ggi nson and Mr. C lements frequently had coffee together at the work place both during and at the end of the latter's shift Mr. Lucas had Mr. Higginson acknowledged his friendship with Mr. Clements. He testified that Mr. Clements had offered to help him move approximately three (3) years ago. He stated further that he had attended at Mr. Clement’s house for parties on two (2) to three (3) occasions, the most recent being about a year ago. Mr. Clements had also been invited to his home for a Christmas party. Mr. Higginson also agreed that he regularly had coffee with Mr. Clements. He asserted, however, that this usually occurred at the end of the latter’s shift. The Board was informed that the Manager also had coffee with several other employees from time to tim time It was Mr. Higginson’s evidence that this social relationship did not infiuence him in the conduct of the competitton. He noted, in this regard, that the panelists were unanimous in their final selection of the incumbents. Mr. . Lucas testif ied that he spoke to Mr. Higginison about the competi tion approximately one (1 ) week prior to the interviews. He stated that he was then told the essay question would be f f ocused on the subject of disasters. Ye assumed from this conversation that this was common knowledge. Mr. Lucas found this :io: to be the case after subsequently speaking grievors. t, h e o t h e r h Mr-. Higgi nison recal led the above-mentioned exchange. More specifically, he stated that Mr. Lucas asked for information as to the type of question which might be asked on the writter? exam. His response was that "disaster type questions were very popular in interviews for supervisors. " Mr. Higginson testified that he had no other conversat i ons w i th respect to the type of quest ons which might form the subject matter of the essay. Mr. Lucas also stated that Mr. Higginson posted the job specification in the crew lounge approximately three (3) weeks prior to the interviews. He further testified that the Manager then looked in the direction of Mr. Clements and said "know this". Mr. Higginson advised that he posted the speciffcation as the nterview would be based on same. He denied that attempted to alert Mr. Clernents to this Fact through his subsequent statement. To the contrary, Mr. Hi ggi nson bel ived he was alerting all employees as to its significance by the postig of the document The Board was advised that a copy of the job speci fication was ava i lable at the iriterview for- external and i dates who had not prev i ous l y had an opportuni ty to rev i ew 6 Mr. Katsuno conceded that no reason existed for Mr. Whiting to be biased in favour of a particualr applicant He felt however-, that Mr. Fawcett mi gh t have been parti al towards Mr. Clements as he had previously supervised that employee and might thereby be more familiar. with the quality of his work It was h is evidence that Mr-. Hi ggi inson could not evaluate the girevors efforts as he did not accompany them on calls. Mr-. Katsuno stated he knew prior to the interviews that Mr. H Higginson would be on the selection panel He only learned of Mr-. Fawcett's participation on same when he entered the interview room. Mr. Katsuno testified that he did not voice any concerns to Mr. Higginson about the latter's involvement in the competition process until he was advised as to the result. At that juncture, he informed the Manager that, in his estimation, the interview was "not particularly fair." Mr. Katsuno did not then elaborate as to the foundation for his assessment. Mr. Higginson stated that neither the grievors nor the Union voiced concerns as to his impartiality prior to the interviews. He did not recall Mr. Lowell suggesting that he not sit on the panel in view of his friendship with Mr. Clements. Rather he recal ied that the Steward said he wouldn't want to participate on the panel with vie (5) internal empioyees having applied In reply, Mr. Lowell generally confirmed this recollection. He stated ne advised Mr. Higginson that he might not want. to put himself in a difficult position given that a number of the candidates were from the Ori l l is office. Mr. Lowel l considered this to be merely "a friendly suggestion." Mr. Higginson nevertheless, el ected to serve on the panel i t was h is j udgment that such part i c i pat i on was expected, and i ndead requ i red of a Manager Simply put, it was the position of the Union that a bias had cumulative effect of all of the evidence presented by the grievors. The Board was asked to objectively assess such evidence and to conclude that the credibility of the competition had been destroyed in the mind of any reasonable .employee. way of remedy, the Union requested that, at a minimum, the By competition should be rerun in respect of the position awarded to Mr. Clements. in response, it was the position of the Employer khat there existed no clear or cogent evidence of actual bias. From its perspective, if flaws existed in the competition process, they were not material to its ultimate result. It. was also submitted that the grievors were under an obligation to raise the issue of bias prior to the filing of the grievances. For these reasons, the Employer asked that the grievances De dismissed. We were referred to the following authorities in support of these arguments Chiasson 262/79, 512/80 (Kruger); Sedore, 250/83 a (Delisle); Mountain Barrell MacLellan, 629/89, 630/89 633/89 (Fisher) Re Gordon et al, and East Side Plating Ltd. et al [1 1972 1926 1972 2 O.R. 469 0nt. H.O.J. ); Re Thompson And Local 1026 of The International Union Of Mine, Mill And Smelter Workers et al., 35 D.L.R. (2d) 333 (Man. C.A.). The Board after a review of the evidence concludes that the Union has failed to demonstrate the existence of partiality in the instant competition. More particularly, we find as follows: The Board attaches little significance to the fact the grievors received advance notice that they would be granted an interview. The circumstances in which such notice was received does not suggest a bias on the part of Mr. Higginson. it is likely that all internal candidates were aware they would be interviewed for the open positions given the Employer’s initial decision to only interview persons within the civil service. This decision, for whatever reason, was circulated prior to formal notification that an interview would be granted. To repeat, we cannot find that this line of evidence is consistent with a bias towards Mr. Clements. Similarly, the Board has not been convinced that the telephone call overheard by Mr. Lacroi x demonstrates a lack of impartiality We accept that Mr Higginson was merley isolating certain qualifications not possessed by the caller. Given the nature of the positions posted, we think it understandable that he would reference these types of qualifications. Ultimately, the Board has not been iti persuaded that Mr. Higginson's remarks exhibited a predispostion Discipline policy As noted ear? ier, the Manager couid not recall the specific request. Given this inability, it remains a matter of speculation as to why the policies sought were not provided to the grievor. After considerable thought, we are disinclined to find that the refusal to provide the information represented a bias against Mr. Katsuno. In this regard, we accept Mr. Higginson's evidence that the policies sought were not relevant to the position applied for. Further, we are satisfied that they were not subject to examination in the interview. It is difficult for the Board, on the evidence presented, to conclude that the Manager was hostile towards Mr. Katsuno. We note in this regard that Mr. Higginson had initially offered Mr. Katsuno an acting Ambulance Officer 4 position some two (2) years earl ier I hat offer was declined by the grievor. the Union did not provide any evidence that their relationship had deteriorated t in the two (2) year period preceding the competition. In the final analysis, we are unable 'to state with any degree of conf idence that Mr. Higginson's refusal reflected either a against Mr. Katsuno or a predisposition in favour of Mr. C ements Cl e (iii) As stated prev i ous l y, Mr. . H i gg i nson acknow l edged t he existence of a social relationship with Mr. Clements. further the provided evidence as to the extent of same. After reviewing this idence the Board is unable to f d that the exiistence of has been ished. given the relatively small size of t l- e Or i l l i a Ambulace ance serv i re, we can readi l y unders tand how social relationships could develop between staff. Whi le we might question Mr. Higginson’s judgment in serving on the panel given his friendship with Mr. Clements, we nave not been persuaded that such friendship materially influenced the competition process. we are incl i ned to accept the Manager’s evidence to the effect that he bel ieved it to be his duty to participate on the pane: . A greater sensitivity on his part to appearances might have avoided the present dispute. (iv) The Board is unable to conclude that Mr. Higginson’s disclosure with respect to the essay question supports the allegation of bias towards the incumbents. This type of information would not likely have been communicated to Mr. Lucas i-F the Manager had actually intended to favour either Mr. C lements or Mr. Simpson. Notwithstanding this conslusion we have reservations about the propriety of such a disclosure as it could potentially prejudice other internal or external candidates who were not privy to same the Board has reached a simi lar c enol ion wi th respect to the posting of the job spezi fi cati on some threee 3 weeks prior Lo the interviews. In our judgment, this action alerted all internal candidates of the importance of the job specification to the interview. This document would not likely have been posted had it been Mr. Higginson’s intent to Cl 11 to prejudice these grievors. (v) The Board does not accept Mr. Katsuno's statement that Mr Fawcett may have had preconceived thoughts as to the relative abilities of the applicants by virtue of his having supervised Mr. Clements. The,-e is simply no evidence beore us to support that assertion. (VI) The Board has not been persuaded that much turns on the fact that the grievors did not question Mr. Higginson's participation in the process until after the interviews. It is beyond dispute that the instant grievances all alleged lack of impartiality. In our judgment, the complaint was raised in a timely fashion. The failure to raise it earlier, in the circumstances of this case, does not by itself complet the dismissal of the grievances. In summary, the Board has not been persuaded that the , th . i ntegr i ty of the compet i ti on process has been compromi sed i n th i s instance. We are unable to find that the cuniula-tive effect of the evi dence l eads to the conc l us i on that Mr. H i gg i nson l acked impartiality so as to render the competition unfai r, We consequently decl ine to order that the competi tion be rerun For all of these reasons, the grievances are dismissed. Dated at Toronto , Ontario this 22nd day May 1991 M. V. Watt D. Montrose, Member 13