HomeMy WebLinkAbout1994-1236.Pino.95-07-31ONTARIO
CROWN EMPLOYEES
GRIEVANCE
SETTLEMENT
BOARD
EMPLOY&S DE LA COURONNE
DE L’ONTARIO
CgMMlSSlON DE
REGLEMENT
DES GRIEFS
180 DJNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5Ci 128
180. RUE DIJNDAS OUEST, BUREAU 2100. TORONTO (ONTARIO). MSG 128
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TELEPHONE/Tf!LftPHONE: (4 76) 326- 1388
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GSB # 1236/94
OPSEU # 946106
IN THE MATTER OF AN ARBITRATION
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“.. ._ 1. Under ; - .
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THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT '
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN OPSEU (Pino)
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Education & Training) Employer
BEFORE
FOR THE
GRIEVOR
W. Kaplan Vice-Chairperson
G. Richards
Grievance Officer
Ontario Public Service Employees Union
FOR THE
EMPLOYER
B. Adams
Coordinator
Labour Management Relations & Client Services
OTAB
Ministry of Education & Training
FOR THE C. Hill
THIRD PARTY
HEARING July 25, 1995
Introduction
This case concerns the August 26, 1994 grievance of Mr. John Pino, an
Industrial Training Officer employed by the Ontario Training Adjustment
Board. In brief, Mr. Pino grieves both the process and the result of a job
competition for the position of Program Coordinator. The grievance
proceeded to an expedited hearing in Toronto at which time the parties filed
lengthy and detailed briefs. They also made extensive oral submissions.
The incumbent, Ms. Carol Hill, was notified of these proceedings, attended,
and made both oral and written submissions.
The Union’s Case
In brief, it was the union’s submission that the employer violated the
Collective Agreement when it failed to interview the grievor for the
Program Coordinator position. Sixteen individuals applied for this position
after it was advertised in Topical, and, following a pre-screening process,
five of the applicants were selected for an interview. In order to qualify
for an interview, applicants were required, in pre-screening, to achieve a
minimum score of 13 out of 20, and were further required to score at least
one point in each of three designated areas, and score at least four points in
total for these three areas. The grievor failed to achieve the minimum
score - he obtained a score of 11 - and also failed to achieve the threshold
score for the specifically designated criteria.
While the union raised a number of concerns with respect to the running of
this competition, two main flaws were identified: First, that the selection
criteria used by the employer inexplicably failed to include one important
factor listed under the skill and ability requirement in the position
specification - a factor that if considered would have worked to the
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grievor’s advantage. And second, that there was little or no evidence that
the employer turned its mind to the standards it would use for marking the
applicants on each of the selection criteria; consequently, there was a lack
of logical and consistent application of the criteria in the pre-screening of
the applicants.
Union counsel developed these submissions in both his brief and his
argument illustrating these two points with a number of examples. In
particular, counsel noted that the posting assumed that the applicants for
the position would arrive ready and able to begin work, and this
requirement was reflected in the position specification which required
applicants, among other things, to have a detailed knowledge of the Trades
Qualification Act. However, the employer failed to include knowledge of
this Act in the criteria it used for screening purposes. In the result, the
grievor, who had detailed knowledge of this Act - knowledge necessary for
the performance of the position in question - was screened out, while the
incumbent, who came from a different ministry, and had no working
knowledge of this legislation, was screened in. It was inconceivable that
the grievor, who had years of experience working with this legislation and
in this field, was not allowed to obtain any benefit from this knowledge and
experience. In the union’s view, for this reason alone the process the
employer employed was manifestly unfair. Counsel noted that if this
criteria had been included, and if the grievor had been given points for it, he
might have qualified for the interview and then obtained the position.
As noted above, the union also took issue with the manner in which the
selection criteria were defined and applied to the individual applicants.
While the union referred to a number of examples in support of this
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submission, and it is fair to say that in at least one of the examples raised
by the union it is quite difficult to understand the score given to an
applicant other than the grievor in one specific area, the main bone of
contention, from the union’s point of view, was the absence of detailed
standards and rationales for the various possible marks within the allowed
point spread. It is not necessary to recite the union examples chapter and
verse; suffice it to say that it was the union’s submission that the grievor
had similar experience to other applicants who received higher scores and
should, therefore, have also received a higher score. Had he done so, union
counsel noted, he would definitely have been interviewed, and he might have
obtained the position.
Finally, the union raised some concerns about the incumbent noting that she
has continued to live in Toronto after obtaining this Sault Ste. Marie
position, and has, moreover, been spending a great deal of time attending
in-house Ministry training as well as classes at OISE. These facts raised,
in the union’s mind, certain suspicions about what taken place. Union
counsel suggested, for instance, that if the position was a training one, as
it now appeared, the relatively small differences in score results should
not have precluded the grievor from obtaining it, given his greater
seniority. Counsel noted that the grievor might have been interested in
receiving the same type of training and continuing education now apparently
being enjoyed by the incumbent.
For all of these reasons, union counsel asked me to find that the process
was flawed, and to direct the employer to rerun the competition after
ensuring, through the provision of a number of remedial steps, that a truly
fair competition take place between the grievor and the incumbent.
/’
The Employer’s Case
Mr. Adams, on behalf of the employer, began his submissions by referring to
the history of this particular competition. To make a rather long story
short, the position in question was first posted some time earlier and was
re-posted only because no one, including the grievor, qualified for an
interview. The grievor grieved and, as part of a negotiated settlement, was
given an interview. He was still unsuccessful in his quest for the position,
and he attended a post-interview debriefing. The job was then reposted.
Given the previous experience, the Manager of the Unit reviewed, and
downwardly revised, the scores required to obtain an interview. The
resumes of all the applicants, including the grievor, were assessed
according to the revised criteria. These criteria, Mr. Adams hastened to
point out, were not arbitrary; rather they were carefully thought out and
were directly relevant to the position in question. Moreover, a document
entitled “Details of the Selection Criteria,” was introduced into evidence,
and this document indicates the scores given for each of the criteria and
explains, albeit in somewhat summary fashion, how the range of scores was
to be assigned in each case.
In his submissions, Mr. Adams explained why each of the criteria were
chosen, and also reviewed their relevance to the position in question. It
was true enough that no grades were assigned for knowledge of the Trades
Qualification Act. The employer did not dispute the submission that
knowledge of this Act and its regulations were important. Nevertheless,
knowledge of this legislation was excluded for two important reasons:
First, to include it would give internal applicants an unfair advantage, and
second, the employer was of the view that the necessary knowledge could
be quickly obtained and would not, in the short intervening period, impact
negatively on the successful candidate’s ability to immediately perform the
Program Coordinator position. The employer also took the position that
knowledge of this legislation was only one small part of the skills and
knowledge required for the position, and it was not, therefore, appropriate
to give it undue emphasis as a criteria to be evaluated in the selection
process. What was important, and what had taken place, in the employer’s
submission, was the preparation of an advertisement that fully and fairly
set out the requirements for the position. This process was followed by the
pre-screening of the applicants in a manner that provided none of them with
any unfair advantage. Mr. Adams noted that it has never been the policy, or
a requirement, to indicate in a job advertisement, or to require in the
pre-screening process, enumeration or assessment of all of the skills and
knowledge required for a particular position.
With respect to the actual evaluation of the criteria employed in assessing
the applicants, Mr. Adams noted that the employer prepared a guide in
advance, referred to above, and used that guide in evaluating the applicants.
This process resulted in the objective assessment of all of the applicants.
While the union asserted that the grievor should have received higher
scores for a number of the criteria, the employer took the position that he
had been fairly evaluated in each and every case. It was also the employer’s
submission that it was not appropriate to compare the grievor with a
number of other applicants who scored higher in the pre-screening because
those individuals, for reasons that Mr. Adams explained, had different
backgrounds and experience than the grievor.
In the employer’s view, every job competition was unique, and required
special preparation by interested applicants. In this case, all that the
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grievor did was resubmit his previous application, and once again failed to
draw to the employer’s attention the specific qualifications he had for the
position in question. The employer still evaluated his application along
with all of the others submitted, and determined that the grievor did not
meet the threshold requirements. Mr. Adams argued that in following this
process the employer did nothing wrong and everything right. Just because
the grievor received an interview for the position on some previous
occasion did not mean that he was automatically entitled to an interview on
this occasion. It was up to the grievor to demonstrate that he met the
threshold requirements of the position, and on the materials he submitted,
those identical materials that had failed to obtain him an interview on the
first round (absent the filing and settlement of a grievance), he was not
granted an interview. This, Mr. Adams argued, was hardly surprising and
should not, in any event, lead to the Board ordering an interview in this
particular case as the job posting was consistent with the position
specification, and the evaluation of the grievor’s application was fair.
Accordingly, Mr. Adams asked that the grievance be dismissed.
Submissions of the Incumbent
Ms. Hill made a number of submissions on her own behalf. She described her
background and experience in the Public Service, and also detailed some of
her efforts to prepare for this competition. According to Ms. Hill, she has
had a great deal of experience in interpreting and applying various statutes,
and in preparation for this job competition she familiarized herself in short
order with the Trades Qualification Act. Ms. Hill did not deny that she has,
in addition to working in her position, been taking training courses in
Toronto. She pointed out, however, that she applied for these courses and
further noted that she had provided information about these courses to the
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grievor who could have, had he wished, also applied to take them.
It was Ms. Hill’s position that the grievor failed to prepare himself for this
employment opportunity. Ms. Hill noted that she had had three or four
interviews with OTAB prior to successfully obtaining this position, and
noted that she worked hard to obtain this job. It was hardly fair, in these
circumstances, for the grievor, who had not prepared for the job, to both
grieve the result and then to suggest, if his grievance was successful, that
he should be given various “equalizing” opportunities in order to compete
more effectively in a rerun. Ms. Hill argued that the job competition was
properly administered and asserted that she won it fair and square. In her
view, the grievance should be dismissed.
Decision
Having carefully considered the evidence and arguments of the parties, and
the evidence and argument of the incumbent, I have concluded that this
grievance should be dismissed.
In my view, the evidence establishes that the employer reviewed the
position description and then developed selection criteria that were related
to the position in question. It is true enough, as the union asserted, that
these criteria do not comprehend all of the knowledge required for the
position as set out in the position specification, but having reviewed both
the position specification and the selection criteria, I am satisfied that the
latter are specific enough so as to provide a valid measure of the true
requirements of the position in question. In making this finding, it should
be noted that the knowledge of one piece of legislation, which was required
on the job, was not assessed in the pre-screening process. However, as Mr.
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Adams pointed out, knowledge of this legislation was found among a
relatively long list of skills and knowledge required, and its absence alone
cannot be considered fatal to the process particularly where all of the
other criteria, as I have found, do provide an appropriate basis for the
pre-screening of applicants for interviews for the position. When one
further considers the stated reason for eliminating knowledge of this
legislation from the criteria - namely to open the competition to other
members of the Public Service - one is hard pressed to find that its
omission is fatal to the integrity of the competition especially since, in
this case, the necessary knowledge could be readily obtained.
The union also took the position that the grievor had been unfairly scored in
a number of categories and suggested that the absence of a scoring system,
and the manner in which grades were assigned, was further evidence of a
flawed competition. While the scoring system that was used is not a model
of comprehensiveness, it is clear that the employer did, prior to the
pre-screening of the applicants, consider in some coherent fashion how
each of the criteria would be assessed and how scores would be assigned.
There is no evidence of any bias or impropriety in the application of that
scoring system - all of the evidence is to the opposite effect. Moreover,
while the grievor believes that he should have received higher scores for a
number of criteria, and provided reasons for this belief, I must, having
reviewed these arguments, and management’s response, ultimately conclude
that the grievor‘s reasons are unpersuasive. In general, the applicants with
whom the grievor compares himself are more qualified and have higher
levels of experience in the criteria being assessed. It is hardly surprising,
in these circumstances, that they received higher scores and, in that way,
qualified for an interview.
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Without a doubt, the process employed in this case, like in every job
competition, was not perfect. Few human endeavors are. However, it is
clear, that when the process is considered in its entirety, that the criteria
were reflective of the position, and that the different applicants were
consistently evaluated based on the information they submitted. While the
scoring guidelines could have been, and probably should have been, further
developed, any problems with them are not of such a significance to merit a
rerun or any other remedial relief. There is no evidence of bias or bad faith
in the screening of the grievor’s application and, having reviewed that
application, and those of the applicants granted an interview, I have no
reason to conclude that the grievor was short-changed in any way in the
assignment of particular grades. It should be noted as well that if the
grievor’s resume failed to indicate that he had the required skills and
knowledge, he has only himself to blame. It was certainly open to him to
revise and update his resume instead of submitting the same one he had
submitted one year previously which had failed, at first round, to result in
his receiving an interview.
Accordingly, and for the foregoing reasons, the grievance is dismissed.
DATED at Toronto this 31 st day of July 1995.
;/“;‘.Y /’ -L------------B-B
William Kaplan
Vice-Chairperson