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HomeMy WebLinkAboutSalo 14-08-26IN THE MATTER OF AN ARBITRATION between ONTARIO PUBLIC SERVICES EMPLOYEES UNION and CONFEDERATION COLLEGE Grievance of Irene Salo (#2013-0731-0005) APPEARANCES: For the Grievor: Jane Letton, Counsel (Ryder, Wright, Blair and Holmes) Irene Salo, Grievor Adair Conlon, OPSEU For the Employer: Craig R. Lawrence, Counsel (Hicks Morley) Jeannine Verdiuk, Senior Manager, HR Darlene Giba, HR Consultant Janis Cox, Associate Dean, School of Business Before: Louis M. Tenace (Arbitrator) Heard in Thunder Bay, Ontario, May 27 and August 18, 2014. 2 The grievor, Irene Salo, is grieving the fact that she was not the successful candidate in a competition held at Confederation College for the position of Academic Support Officer. Specifically, she alleges that the College was in violation of Article 17 (Job Postings/Promotions). There were six original applicants, all of whom were bargaining unit members. Five were scheduled to continue in the selection process and one of these subsequently withdrew her candidacy. The remaining four applicants were given a written test. The grievor and one other candidate scored 19 and 27 respectively out of a possible 40 marks, and were not considered further. Of the two remaining individuals, their marks on the test were extremely close (32 and 36) and the position was offered to the person with the greater seniority, notwithstanding the fact that her marks were slightly but negligibly lower. Both candidates had had some prior experience in the position. The grievor alleges that the competition was flawed and that she should have been offered the position. She alleges that her prior experience was not considered, that her personnel file was not properly reviewed, that the test had no marking scheme, that she was not aware of the value of each question on the test, that the questions did not relate properly to the posting and that the test was not properly scored. Also, she was not provided with a proper ergonomic keyboard with which to complete the test.The grievor believes that she should have been placed into the Academic Support Officer position. The grievor, Irene Salo, testified that she has been employed at Confederation College for some thirty-seven and one half years during which time she has worked in a wide variety of positions and gained experience in a broad spectrum of tasks relating to the work of the College and to the duties of the position in question. When the position became available, she applied and received a response to the effect that she did not meet the educational requirements of the position. Nonetheless, she was invited to take the written test along with the other candidates. She testified that when she sat down to take the test, she concluded that one would have had to have been in the position to properly answer the questions. Although the test questions related directly to the Position Description Form (PDF), one would have been at a disadvantage unless one had spent some time working in the position. The grievor's Counsel then walked her through the test questions. During this review, she indicated that there were areas in which she had had no previous experience or responsibility, that she had found some of the questions confusing and that some of the questions reflected only the major duties of the position. She also felt that she should have been given some marks for having tried to answer some questions. It was her conclusion that the test had not been designed to test her past experience and that it was unfair and biased. In cross examination, the grievor acknowledged that the job posting (Exhibit A, Tab 2) reflected the duties of the position as described in the PDF and that it properly reflected the requirements of the Academic Support Officer's job responsibilities. As for the test itself (Exhibit A,Tab 5), she also acknowledged that the test questions were properly interrelated and that the test questions and the job posting were accurately tied to the duties of the position. Darlene Giba is a Human Resources Consultant who has been with Confederation College for some twenty-seven years, eleven of which have been spent in HR. She is responsible for many competitions and usually does three or four each month. She was responsible for the one in question. She reviewed the PDF, prepared the job posting, received and reviewed the qualifications of the six applications; one was eliminated. Candidates were then given about a week to prepare for a written test. No further information was given to any of the candidates. Ms. Giba then administered the tests in her own closed office using her own computer and ergonomic keyboard. Each candidate was allowed one and one-half hours to complete the test. She then marked the tests using the set of prepared answers. She also contacted the two lowest scoring candidates and told them that they would not be considered further. One of these was the grievor. She also scheduled a meeting with the grievor at the grievor's request to discuss her test results. She testified further that the grievor seemed satisfied with the explanations provided. In cross-examination she stated that the Academic Support Officer previously in the position had been asked to prepare the written test and answers. No candidate knew the value of each question nor was there any indication of the score needed to pass the test. She acknowledged that a person who had had previous experience in the position might do better on the test. This was the case for the two highest scoring candidates, each of whom had had some prior experience in the position or in another similar position. Grievor's Counsel submitted that the grievor had the qualifications, experience and seniority required and should have been given the position. At the time of the posting she was not in a full-time job and was receiving less pay. She was scored low on the test artificially and the test did not cover everything in the job posting, The marking of the test was unreliable. Also, she should have been given points for part answers. The competition was flawed. There is also concern that the test was prepared by a previous Academic Support Officer, particularly when the successful candidate had been in the job on a temporary basis. It was also alleged that the College relied totally on the test score and did not take into consideration the grievor's qualifications and experience. In support of her submission, Counsel referred me to the following cases: Great Atlantic and Pacific Company of Canada Ltd, and Canadian Food and Allied Workers Union, Locals 175 and 633 [1979121 L.A.C. (2d) 444 (Weatherill); Northern Electric Co. v. Communications Workers of North America, Local C-9 [19691, 20 L.A.C. 222 (E.E.Palmer, Chair); Great Niagara General Hospitaly. Ontario Nurses' Assn. [ 19971 L.A.C. (4TH) 289 (Devlin). Counsel for the employer submitted that this grievance was really about the College exercising its discretionary powers as provided by Articles 3 and 17. 1.1 of the collective 4 agreement. The College has the right to chose the best candidate. The process was fair to all candidates. There was a proper set of questions and answers. All candidates were on the same level and no person had any advantage over the others in this regard. The questions and answers had been prepared by someone totally familiar with the job requirements. Moreover, the grievor agreed that the test was an accurate reflection of the job posting and it was up to the grievor to show that she deseived higher marks. To argue that she should have been given part marks for her answers to some questions would have meant that this would have had to have been done for all the candidates. There were no flaws shown in this competition which prejudiced the grievor. In support of his submission, Counsel for the employer referred me to the following cases: Consumers Glass and Aluminum Brick and Glassworkers International Union, Local 269G (Cardoni)[19971 61 L.A.C. (4th) (Shime); Conestoga College and Ontario Public Service Emplo ces Union, Local 238, 2003, (Saltman, Chair), George Brown College and Ontario Public Service Employees Union, 1994, (Bendel, Chair); Conestoga College and Ontario Public Service Employees Union, 2005, (O'Neil, Chair). Having reviewed all the evidence and the case law submitted, I am satisfied that there has been no substantiation for the allegations made by the grievor. I can find no fault with the College having a test and answers developed by a person who was completely familiar with the duties and responsibilities of the position in question. To have done otherwise might have led to some cause for concern. No evidence was adduced that pointed to any bias or unfairness with respect to how the test was conducted. All candidates were treated in exactly the same way and given the same amount of time to complete the test. In cross examination, the grievor testified that the job posting accurately reflected the PDH that it reflected the Academic Support Officer duties and that the questions were properly interrelated. The grievor also acknowledged that past experience was a relevant factor in considering a person for a job. It is the grievor's contention that there was a breach of Article 17 of the collective agreement, mote specifically, Article 17.1.1., which reads as follows: 17.1.1 Consideration - Bargaining Unit Employees When a vacancy occurs and employees ii ithin the bargaining unit at the College apply, the College shall deterinine the successful candidate based on the qualifications, experience and seniority of the applicants in relation to the requireinents of the vacant position. Where the qualifications and experience are relatively egital, seniority shall govern, provided the applicant has the necessary qualifications and experience to fidfill the requirements of the position. Clearly, this article is designed to ensure that seniority will be the determining factor in a competition where the qualifications and experience of candidates are "relatively equal". The grievor was not successfiil in the written test and consequently, this Article has no application to her in that regard. Of course, if her qualifications and experience were not 5 properly taken into consideration, then that aspect is relevant. However, the evidence does not support her allegation that these factors were not considered by the College. It was suggested that the grievor was not given a proper ergonomic keyboard with which to complete the test. No evidence was put before me to suggest what constituted a "proper ergonomic keyboard" or whether it was a different ergonomic keyboard from the one provided in Ms. Giba's office which all candidates used. In any event, it is doubtful that the keyboard used by the grievor was a sufficiently relevant factor leading to her significantly lower test score. Certainly, time to complete the test was not a factor. I have reviewed the grievor's answers to the test questions and her responses, generally, were a good deal lengthier than the suggested answers. It was submitted that the test should have shown a marking scheme for each question. While that might have been useful, I do not see it as casting a shadow over the test. All candidates were subjected to the identical test and no advantage was enjoyed by any person. It was also submitted by grievor's Counsel that there should have been a follow- up interview of each candidate. While I am inclined to agree that written tests and interviews of the candidates often go hand-in-hand, there is nothing to suggest that this is a requirement and there is no such provision in the collective agreement. It is a proper function of the College to run competitions for positions and in doing so they have a broad discretion. Of course, they must do so in a fair and reasonable manner and treat all candidates accordingly. I do not know whether a formal intet view process in addition to the written: test would have helped in this case but I have no doubt that it would not have harmed the process. In any event, there was no obligation for the College to do so. Based on the evidence adduced, there is nothing to suggest that this competition was not handled in an open, fair and unbiased manner. Finally, with respect to the submission by grievor's Counsel that her experience and qualifications were not taken into consideration, I must reject that argument. The very fact that the grievor was one of the five candidates accepted to participate in the competition (a sixth was not) is an indication that her experience and qualifications were reviewed. For all of the reasons outlined above, the grievance is dismissed. Signed in Ottawa this 26th day of August, 2414 Original signed by Louis M. Tenace Louis M. Tenace (Arbitrator)