HomeMy WebLinkAboutPark 14-03-06
IN THE MATTER OF AN ABITRATION
BETWEEN
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 479
and
ROYAL OTTAWA HOSPITAL GROUP
and
IN THE MATTER OF THE GRIEVANCE YUNA PARK
BEFORE: Brian Langille, Sole Arbitrator
APPEARANCES: For the Union: Raphael Laframboise-Carignan, Counsel
For The Employer: Michelle O’Bonsawin, Counsel
A hearing in this matter was held in Ottawa on December 3, 2013 and January 10
and 21, 2014.
AWARD
This is a job posting grievance involving a standard type competition clause
under which the job is to be awarded to the senior employee if factors of “skill,
ability, experience, and the relevant qualifications” are “relatively equal”. Initially
there were two senior grievors who claimed that the job had inappropriately been
granted to a junior employee but one of those grievances was settled. The junior
employee who was award the job is Ms. Stephanie Cantin and the more senior
employee who was unsuccessful in the job competition is Ms. Yuna Park, the
remaining grievor.
The job which was posted and which is in issue here is “Regular Part Time 0.4
Pharmacy Technician” at the Royal Ottawa. The position is an important and
technical one mainly involving dispensing drugs and the 0.4 indicates that it is 0.4
of a full time position.
The employer is a large hospital and it has, as one would expect, a sophisticated
set of human resource policies and procedures. These were followed in this case
and as a result there was a formal call for, and vetting of, applications followed by
a formal, standardized, interview process, all well processed, well documented, and
carried out by senior and experienced interviewers in accordance with the
established procedures which have been used many times. It was agreed by the
Hospital that all who were granted an interview were “qualified” and thus equal in
that regard. (As we shall see this is an interesting point to which we shall return.)
The evidence put before me concerning the interview process was, as is normal in
these cases, quite voluminous and provided by those who took part in it, both
interviewers and interviewee. It is quite clear that Ms. Cantin was ranked
significantly higher than the grievor on the basis of this process. That is, they were
found to be not “relatively equal” in terms “skill, ability and experience”. As a
result Ms. Cantin got the job.
But, as I understand the Union’s position, it is not so much what the Hospital did
in terms of evaluating the applicants, or in “running” the interview process, but
rather what it did not do which lies at the heart of its case. In large part the union’s
case is that the employer relied exclusively on the interview process and did not
seek out other information potentially relevant to the issue at hand under the
competition clause. In particular the employer did not seek out, for example,
performance appraisals from supervisors or, it was said, other relevant information
concerning the applicants. This is particularly significant because both the grievor
and the successful applicant were actually doing the very job being posted, albeit
in a part-time capacity, and were seeking “more hours” in that very job. It is also
true that the grievor had been in the position much, much longer than the
successful applicant (4.5 years as opposed to 1 month). In staking its claim on this
basis the Union relied on a series of decisions by arbitrators which do express
sometimes quite strong views about “over’” or “sole” reliance on an interview
process and the disregarding of other relevant evidence. One of the concerns
expressed in those cases is that there is a danger that the employer will end up
evaluating the ability to do well in an interview about the job, as opposed to the
ability to do the job well. (Or, as one arbitrator put it, the ability to “talk the talk”
as opposed to “walk the walk” – see Arbitrator Bendel in North York General
Hospital v SEIU 92 CLAS 43 at para 40.
Before turning to this point it is important to note that there is a large background
factual circumstance and context which is in play in this case and it is this: the job
of Pharmacy Technician is one which, in common with many in the Health
Professions, is undergoing change. It is being upgraded in terms of skills and
responsibility and thus qualifications. It is being “professionalized”. This is
because of an overall restructuring in Pharmacy which has resulted in a ripple or
“knock-on” effect downward as Pharmacists take on new tasks and thus need to
delegate more of the technical aspects of their previous job to those such as
Pharmacy Technicians. As a result, those positions are being upgraded.
All of this is happening under the Registered Health Professions Act of Ontario.
The transition period here runs until 2015 by which time all Pharmacy Technicians
at the Hospital must have taken the relevant training at an educational institution
accredited by the Ontario College of Pharmacists and be registered with the
College.
Ms. Park, the grievor, is caught up in the middle of this transition. She was hired
before the new regime and new set of qualifications were put in place and she is in
the process of upgrading her qualifications in order to become registered. She has
been in the process of obtaining, with the support of the Hospital, and through
various courses at accredited institutions, the qualification now required. All the
pre-existing Technicians employed at the Hospital have been taking, over time, the
required courses.
The evidence is that if there had been no internal candidates for this posting the
Hospital would have sought only external candidates who were registered. The
evidence is also that if by 2015 a current technician fails to become qualified and
registered they will be re-assigned to the position of Pharmacy Assistant.
Here the successful candidate had taken a full-time college program to obtain the
qualification necessary for registration with the College.
But, as noted already, the employer in this case treated all applicants for the job at
issue here as “qualified” and eligible for an interview whether they had the
qualifications necessary to become a Registered Pharmacy Technician (as the
successful applicant did) or were in the process of obtaining that qualification. As
noted, the successful applicant entered the field as part of the new regime. She was
hired with the relevant College training already in place. But both applicants were
given an interview as the hospital treated both as having the relevant qualification.
That is, applicants such as the grievor were not screened out on the basis of their
“training in progress” status, they were screened in.
I heard extensive evidence on the interview process. The panel was made up of
The Director of Corporate Pharmacy Services (also referred to as the Chief
Pharmacist), the Acting Vice President of Professional Practice, and a member of
the Hospital’s Human Resources department. There is no need to review this
evidence in detail. I am satisfied that those involved made a good faith and serious
effort to construct an interview process or “tool” that would test the relevant
knowledge, experience, and ability of those being interviewed. While counsel for
the union was concerned to make some points about some of the questions,
particularly those non- technical or “behavioral” ones, I do not think there is a real
failure on any significant scale in this regard and in any case the main claim here is
about what was not done, not what was done.
The Pharmacy Department is a small one with a head, 4 registered Pharmacists, 9
regular part-time and one full time Pharmacy Technicians, and 2 casuals. There
were four internal applicants for the job at stake here. The griever was ranked
third of the four with an overall score of 65. The successful applicant scored 86. It
is not the case that the grievor scored equally on the technical questions and thus
suffered solely in comparison because or her responses to the non-technical
questions. As indicated I have no substantial reason to doubt the validity of the
scores in any case.
The grievor also testified and she offered her testimony in a precise, quietly
spoken, and dignified manner. But she was also forceful and effective in defending
her record as an employee, and her efforts in pursuit of both the required external
training and other avenues of self-improvement.
But the key to this case lies in examining some very basic truths which cannot be
avoided. First, I have found that the interview process was, in its fundamentals and
on any reasonable standard, designed to be and was a fair and rational one.
Second, I also cannot put much stock in Ms. Laframboise-Carignan’s able
argument that the employer’s reliance on the interview process was fatal in this
case. I say this for a number of reasons. First, while it is true that arbitrators have
expressed legitimate concerns, sometimes in strong language, about over reliance
on interviews it is also true, as always, that these remarks and these cases must be
read in context. In this case there is the significant background factual
circumstance to which I referred above – the upgrading of qualifications and the
need for registration with the College.
Second, it is my view that arbitrators must be careful in shaping the jurisprudence
in this area because it has a direct impact on how responsible employers structure
their human resource processes. In this regard arbitrators have, over the years,
made very significant and proper demands upon employers to use a fair, rational,
structured, and equal selection process. This has involved demands about both the
content and the process of interviewing job applicants. This was largely, or at least
in part, done in the name of avoiding employer or supervisor “discretion” or
“favouritism” or even worse (invidious discrimination, for example) in the
selection process. This was done as part of the overall arbitral task of imposing the
rule of law and its allied idea of “reasonable contract administration”, as opposed
to unfettered managerial discretion, in the workplace and is required because very
significant employee entitlements based on seniority, are at issue. As a result
employers such as the one in this case have created highly structured and formal
processes in the name of seeking relevant information and in a formally fair and
equal manner. While it is no doubt important to not mistake talent at interviewing
for the real skill, knowledge and ability needed to do the actual jog it remains the
case that the values of substantive rationality and procedural fairness are important
ones for both employers and employees. Arbitrators should be careful, in my view,
having now constructed a jurisprudence demanding processes which seek to
maximize these values, in making new demands which might, if not properly
considered, take us in the other direction.
To these general considerations we need to add the following concrete facts in
play in this particular case. This is a case where the Hospital has embarked on a
program to support the transition all the existing Pharmacy Technicians to the new
reality of Registration with the College. Although the grievor has been in the
department much longer than the successful applicant this cannot be determinative
or of any over-riding importance. This is because the successful applicant had the
required accredited college course as a result of a full time enrollment in an
accredited institution. That was a significant investment in time in order to acquire
the relevant skills and knowledge for the job. The grievor did not have this full
time educational experience but had been on the job, on a part time basis, and was
working on a series of courses to achieve the same level. The simple fact is that the
time spent in class at college on a full-time basis is now the obvious way of
achieving the pre-requisites for registration under the new regime. Given that the
grievor had and was pursuing a different path more or less required, in my view,
that the employer devise an objective way of determining what the collective
agreement requires – their relative “skill, ability, and experience” required for the
job.
I pause here to note also that “experience” here cannot be read as simply time on
the job. That would be to confuse “experience” with “seniority” which is the
separate and “tie-breaking” factor in a competition clause case such as this.
Experience here means not experience in the sense of seniority but experience in
the sense of demonstrated command of relevant knowledge and ability to deploy it
effectively. We do not say a worker is experienced to convey simply that they have
been working for a long time, but rather to convey that they know what they are
doing.
There are several other problems with the union’s position. First, the evidence is
that the sort of “other” non-interview evidence the union (and the cases relied
upon) refer to either does not seem to exist, or has already been taken into account
in this case. For example, there are no “supervisors” to consult or their reports to
read, because there are no supervisors in the department at all. The cases relied
upon by the Union also refer to “courses taken” as an example of other potential
relevant non-interview material. Here courses taken were clearly taken into
account and to the grievor’s benefit.
But I think these are minor points which miss a rather large and important real-life
reality. This is a small department. One of the interviewers was the leader of the
department. In my view the Hospital was right to seek to “objectify”, as best it
could, and spread among experienced managers, as much as it could, the selection
process to choose of the right person - and precisely not rely upon the subjective
observations of those (in this case a single person) in positions above those
applying. It was to the grievor’s - and all other applicants’ - advantage that this
approach be taken. Otherwise, on the facts of this case, the leader of the
department could simply, in effect, chose (or greatly influence the choice of) the
winner on the basis of their supervisory experience alone. As I indicate above, this
is, in my view, in large measure what arbitrators have sought to avoid. So, if other
non-interview evidence is said to be available it must be considered carefully and
tested for its reliability and objectivity. For example, supervisor appraisals may
vary quite a bit on these important dimensions from workplace to workplace.
Moreover, and this is important in this case, there must in my view, be some onus
on a union to show, in the teeth of a reasonably sound interview process, that there
was actually some evidence relevant evidence, obtained in a procedurally fair and
consistent manner, which should have been considered and which would have, or
reasonably could have, made a difference. It cannot be enough to assert or
speculate about the possible existence of such evidence. In this particular regard
the following point should be made. The one concrete allegation or evidential point
raised by the union and the grievor in this regard was that she was actually called
upon to “cover” the shifts of the successful applicant after the hire. But this turned
out to not be true. As a result there is no evidence, in my view, of anything relevant
which could have been, but which was not, taken into consideration.
I can also add that I have read with profit the cases relied upon by the union and,
as always, the sometimes broad statements they contain have to be read in light of
their facts. In most of the cases there was evidence tendered of other non-interview
evidence – see Sudbury Regional Hospital (Burkett, 2002), Greater Niagara
General Hospital (1997) 60 LAC (4th) 289 (Devlin) for examples. In some cases
non-interview evidence was considered for some but not others. (See, for example,
University of Toronto (1995) 52 LAC (4th) 387 (Burkett). That is an obvious
procedural flaw in itself. Or, there were other important flaws in the interview
process itself - see Association of Management Administrative and Professional
Crown Employees of Ontario v Ontario [2008] OGSBA No. 122 (Dissanyake).
And some of the cases involve promotions to lead hand or supervisory positions
where the skills include dealing with and managing people, as opposed to, as here,
technical processes. Here evidence of past success in that role, as opposed to class
room learning about it, might be thought to be of more critical importance. Other
of the cases seem to be decided on other grounds – see North York General
Hospital (Bendel), supra. But it is not necessary to review these cases in detail
because there is no evidence before me of other relevant information which could
have been and should have been considered.
All involved in the labour arbitration process are every familiar with “job
posting” cases such as this one. In this case we followed the normal path of calling
employer witnesses and having them explain how the interview questions were
selected and weighted and then how they came to the various “scores” and thus
ranking for each of the applicants. This is a painstaking if familiar process. It often
reveals that the process was not perfect in all of its particulars. But perfection is not
the standard and the overall question, aside from good faith and fairness in the
design and administration of the process, is whether it sought to and did test, in a
real and substantial way, for what the collective agreement sets out as the relevant
criteria. Here the qualifications for the quite technical job were changing and
required a series of courses which the grievor was undertaking over time and
which the successful applicant has taken in full time study. Having heard all of the
evidence I am not in a position to say that the employer’s interview tool did not
test and test with reasonable accuracy the relevant knowledge, skills and
experience of the applicants.
In my view the evidence supports the conclusion that the process was aimed at
this goal and I have been provided with no reason to call into question the
conclusion of those who made the selection decision. The relevant judgement
about the knowledge, skill, and experience about a quite technical and detail
oriented job has been made, as I see it, in good faith and on the basis of an
objective and appropriate process. And to reiterate, the Union has not made out its
claim that the process ignored other relevant and available information.
For these reasons the grievance is dismissed.
Dated at Toronto this 6th day of March, 2014.
Brian Langille. Arbitrator