HomeMy WebLinkAboutHowe-Chevalier 14-06-27IN THE MATTER OF AN ARBITRATION
BETWEEN:
Mohawk College,
Employer,
-and -
Ontario Public Service Employees Union,
Union
BEFORE: Michael Bendel, Arbitrator
APPEARANCES: For the Union:
Billeh Hamud, Grievance Officer
Kathy Maxwell, President, Local 241
Lisa MacDonald, Chief Steward
Nicole Howe -Chevalier, Grievor
For the Employer:
Nadine S. Zacks, Counsel
Louisa Drost, Director of Health, Counselling & Accessible Learning Services
Kelsey Pursley, Intervenor
Heard in Hamilton, Ontario, on April 3 and May 29, 2014.
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ARBITRAL AWARD
In her grievance, Ms. Nicole Howe -Chevalier, a Customer Service Assistant in Counselling &
Accessible Learning Services, alleges that the employer violated Article 17.1,1 of the collective agreement
by denying her a promotion to the position of Student Triage Support Officer.
The employer conducted a competition in the summer of 2013 to staff the newly created
position of Student Triage Support Officer. The grievor's job at the time, which she had held since 2009,
was due to be eliminated. While there was undoubtedly an overlap between the grievor's job and the newly
created one, the parties disagree about the extent to which the demands of the two jobs were the same.
After interviewing the grievor and one other bargaining unit employee (who had more seniority than the
grievor), the employer decided that neither of them was qualified for the job and proceeded to interview two
external candidates. The job was awarded to one of the external candidates, Ms. Kelsey Pursley, who had
been working on a part-time basis for the employer. (Ms. Pursley attended the hearing and was given the
opportunity to participate.)
Although other possible arguments were alluded to in the union's opening statement
(including that Ms. Pursley benefitted from special consideration in view of a personal relationship with the
son of a dean), the union's argument, in the final analysis, was that the employer improperly limited its
consideration of the grievor's candidacy to her performance at the interview, and disqualified her from
consideration without adequately assessing her skill, ability and qualifications for the job.
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Article 17.1, 17.1.1 and 17.1.1.1 of the collective agreement read, in part, as follows;
17.1 Notices
Notice shall be posted of a vacancy in a position within a payband covered by the Agreement for a
period of five (5) days...Such notice shall contain position title, payband, hourly rate range, current
Campus location, current hours of work, current shift(s), and an outline of the basic qualifications.,.
17.1.1 Consideration — Bargaining Unit Employees
When a vacancy occurs and employees within the bargaining unit at the College apply, the College
shall determine the successful candidate based on the qualifications, experience and seniority of
the applicants in relation to the requirements of the vacant position. Where the qualifications and
experience are relatively equal, seniority shall govern, provided the applicant has the necessary
qualifications and experience to fulfil the requirements of the position.
17.1.1.1 Notification—Applicant
All applications shall be acknowledged and all applicants who are interviewed will be notified of the
outcome of their application and the name of the successful internal applicant, if any. The College
will not interview applicants from outside the bargaining unit until it had complied with Articles 17.1
and 17.1.1 above...
The job of Student Triage Support Officer was posted on ,lune 18, 2413. The poster reads
in part as follows:
JOB SUMMARY:
Reporting to the Director, Counselling, Health and Accessible Learning Services (ALS), the incum-
bent is the first point of contact for students and proposed students accessing services from ALS
and counselling.
This includes assessing inquiries from students regarding Counselling and ALS services and
providing information or referrals to Intake advisor sic as appropriate; conducting preliminary risk
assessment for students presenting in distress including assessing risk of suicide or threat to triage
sicj to Health Services, Counselling or security and/or assessment services and expediting refer-
rals to other agencies when appropriate (e.g. hospital); among others.
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This role involves responsibility for coordinating schedule to sic Intake Advisor for students
accessing services for the first time, and scheduling appointments for students already registered
with service both by phone and in person.
The incumbent must have a full understanding of mental health, and diagnoses; enhanced skill in
concurrent disorder; along with an understanding of the database, Clockwork 5 to reschedules sic]
ALS and Counselling appointments when staff is ill,
QUALIFICATIONS:
The successful applicant will have:
A three year diploma or degree in a professional health, social services or educational field such as
social work, psychology, health sciences, and adult and/or special education; or combination of
education and experience.
Successful completion of a certificate, course or program in suicide risk assessment, crisis Counsel-
ling, or crisis intervention (e.g., Applied Suicide Intervention skills Training, crisis line volunteer),
and/or Non -Violent Crisis Prevention and Intervention course.
A minimum of two years of practical experience, in a service-oriented environment within an educa-
tional setting; primarily related to supporting applicants, students and staff.
The grievor applied for the job. In her letter of application, she highlighted that she held an
Honours B.A. degree, with courses in t=rench and Business Administration; that she was studying for an
M.A. in Education, for which she had recently taken courses in Student Development and Counselling
Techniques, with graduation expected in 2094; that she was also studying for a Certificate in Counselling
Techniques, with completion expected in 2013; that she had completed professional development work-
shops in suicide risk assessment; and that she had four years experience Wth the employer as a Customer
Service Assistant in Counselling and Accessible Learning Services, in the course of which she had worked
with students in a triage role, including students with disabilities and mental health concerns.
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The grievor testified that she viewed the posted job as a logical next step for herself. While
the Student Triage Support Officer role had a few duties that she had not performed as a Customer Service
Assistant in Counselling and Accessible Learning Services, the most significant difference between the jobs,
in her view, was in the time allocated to various tasks. The new job was two paybands higher than her job of
Customer Service Assistant.
The grievor was interviewed for the job on July 24, 2013. In the course of the interview, she
was asked a series of questions by a three-person committee, two members of which were bargaining unit
employees. It lasted about 30 or 40 minutes. No questions related to her educational qualifications. She felt
the interview went well.
However, on July 29, she received an e-mail from Ms. Louisa Drost, the manager who
chaired the interview committee, in which she was told that she would not be offered the job. The e-mail
read, in part, as follows;
...[Yjou did not adequately demonstrate the necessary skill level and specialized experience we
require in order to effectively deal with individuals with disabilities and/or mental health concerns
and therefore successfully fulfill the requirements of this position.
The Triage Support Officer role is crucial to the success of the new model supporting the Counsel-
ling and ALS team, and is essential in allowing the College to provide this critical function for our
students in crisis, and those in need of coaching, advocacy and support, Therefore, we require a
candidate with a very strong background and experience in crisis intervention and dealing effec-
tively with extremely complex and difficult student issues. Through this recruitment process, the
questions and the expected answers were carefully crafted in order to allow the candidate an
opportunity to demonstrate a functional knowledge of the intricacies associated with working with
this specialized student group at the Support Officer level. Your responses did not exhibit the
expertise required in order to successfully fulfill the requirements of this role. We were not able to fill
the position and it has not been awarded to any candidate at this time.
Ms. Drost, the Director of Health, Counselling & Accessible Learning Services since
September 2012, testified that important changes had been made in Student Services, starting in 2011. One
of the changes had been the establishment of a central Welcome Desk, which was the first point of contact
for people wishing to access various services. The grievors old job had provided similar services for one of
the 17 departments now served by the Welcome Desk. In her old job, the grievor had spent about 90% of
her time answering the telephone to book student appointments. In that role, she was not required to assess
or triage students in crisis, which was a major focus of the new job. For that reason, a full understanding of
mental health was required, something the grievor lacked.
Ms. Drost testified that, when she perused the grievors resume, she did not feel that the
grievor met the educational requirements of the job, lacking a degree in "a professional health, social
services or educational field such as social work, psychology, health sciences, and adult and/or special
education". However, the job poster stated that relevant experience could compensate for inadequate
educational qualifications, so it was decided to interview the grievor to see whether she had the necessary
skills for the job.
At the interview, the grievor was asked a series of 17 prepared questions, each of which
had a prepared "expected response". Ms. Drost testified that she and the other interviewers rated the candi-
dates independently, but then compared notes to arrive at a consensus score for each question for each
candidate. Ms. Drost felt that, to be successful on the competition, a candidate would have to score "4" or
"5" (out of 5) on almost all the questions, with an occasional "3" being acceptable. A score of °1n or 7 on
any question would not have been acceptable.
The grievor, according to Ms. Drost, gave poor answers to Questions 7, 9, 12, 15 and 17.
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Question 7 was as follows:
Please provide an example of when you have used superior interpersonal skills to de-escalate
and/or resolve conflict.
The grievor was accorded a score of 2.5. Ms. Drost felt that the example given by the grievor demonstrated
a lack of understanding of the boundaries between the incumbent of the job and the professors.
Question 9 was as follows:
What strategies would you use during initial contact with a student who appears very disengaged
with you and the scheduling process?
Again the grievor scored 2.5. Ms. Drost testified that the grievor stated, at one point in her answer, that she
would tell the student that since she had other students to deal with, she could not deal with him or her
forever. According to Ms. Drost, that would have been an inappropriate way of engaging with the student.
Question 12 was as follows:
If contacted, how would your current or most recent employer describe your initiative and commit-
ment to students and your work?
Ms. Drost testified that she did not get the sense from the grievor's answer that she was portraying a good
image of herself, despite the opportunity to do so offered by the question. She gave a score of "1" for this
question, with the other interviewers giving a "1" and a #2".
Question 15 was as follows:
What actions and support, in your experience, make a team function successfully? Give examples
of this.
Her answer left Ms. Drost wondering whether she was a true team player. In particular, Ms. Drost did not
like the grievor saying that other people should "ask me nicely". The grievor was assigned a score of `2".
Question 17 was as follows:
A student arrives at your desk who is loud and agitated. He pushes his way past other students to
communicate with you. His tone of communication is threatening. What do you do?
The grievor received a score of "2.5" on this question. She replied at the interview that she would tell the
student that she was very sorry and would be with him in just a moment "so other students do not feel like
they are hanging". Ms. Drost did not like the grievor's use of the word "hanging" since every week she
encountered two or three suicidal students in her work.
The final decision on the competition was Ms. Drost's, although she discussed it with the
other two interviewers and with Human Resources. She concluded that the grievor's lack of a degree in one
of the fields specified in the job poster, together with her poor answers to several of the interview questions,
made it impossible to offer her the job. The other two interviewers agreed with this conclusion, noting
several "red flags" in the language the grievor had used in some of her answers.
Ms. Drost added that over 40 people applied for the job. Not all were interviewed. She
stated that her main concern with the grievor was in her use of inappropriate language in some of her
answers. This was the "deal -breaker, she testified. She was not aware, however, of any dissatisfaction with
the grievors use of language in her old job, and she did not contact any of the grievor s references to check
up on this. Ms. Drost was not persuaded, in the final analysis, that the grievors combination of education
and experience was sufficient for this job.
Mr. Hamud, on behalf of the grievor, argued that she had the skill, ability and qualifications
for the job, but had been improperly excluded. In particular, the selection process was flawed by reason of
the employer relying solely on the grievors responses at the interview and refraining from assessing her
education and experience. There was an obvious and admitted overlap between her old duties as a
Customer Service Assistant and the duties of the position being staffed. Ms. Drost had little or no personal
knowledge as to the quality of the grievor's work as a Customer Service Assistant and took no steps to
inform herself. It was wrong for the employer to have placed so much emphasis on the interview and on the
language used by the grievor at the interview, While an interview could be a useful tool in staffing a position,
it should not be used to the exclusion of others.
Mr. Hamud maintained that if the arbitrator concluded that the process was flawed, it would
be appropriate to order that the grievor be appointed to the job with full retroactive pay, since she had
extensive experience in the closely related job of Customer Service Assistant. In the alternative, the arbi-
trator should order that the competition be re -run, with compensation for lost income in the event the grievor
was eventually awarded the job.
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In the course of his submissions, Mr. Hamud referred to Re University of Toronto and
Canadian Union of Public Employees, Local 3261 (1995), 52 L.A.C, (4(h) 387 (Burkett), Re Greater Niagara
General Hospital and Ontario Nurses' Association (1997), 60 L.A.C. (4th) 289 (Devlin), Brown & Beatty,
Canadian Labour Arbitration (3rd ed.), at paragraph 6:4100, Re St. Joseph's General Hospital and Canadian
Auto Workers, Local 1120 (2004), 126 L.A.C. (4th) 114 (Harris), Re Temiskaming Hospital and Ontario
Nurses' Association (2006), 150 L.A.C. (4th) 334 (Rose), and Re AGT Ltd, and International Brotherhood of
Electrical Workers, Local 348 (1994), 41 L.A.C. (P) 154 (Tettensor).
Ms. tacks, on behalf of the employer, observed that the onus was on the union to prove a
violation of the collective agreement, Under the agreement, seniority only governed if the senior applicant
had the necessary qualifications and experience. Counsel argued that the union had failed to prove that the
grievor had the qualifications and experience necessary for the job. Since the grievor lacked the type of
degree specified in the job poster, she had to demonstrate that she had a combination of education and
experience equivalent to the specified degree, and the purpose of granting her an interview was to give her
the opportunity to do so. The questions asked at the interview were designed to assess the quality of her
experience. The process used was fair and reasonable, with objective standards and relevant questions.
Some of the grievor's answers led the employer to doubt whether she understood the role of the position. In
the final analysis, Ms. Drost concluded, on the basis of the grievor's resume and interview, that the grievor's
combined education and experience fell short of the specified degree.
Ms. Zacks maintained that there was no basis for the arbitrator to intervene. Arbitrators
should hesitate to second-guess competent selection committees, to whose judgment they should show
some deference. There was nothing unreasonable in using an interview, in conjunction with the resumes, as
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the basis for the selection decision. The use of interviews was implicitly authorized by Article 17.1.1.1 of the
collective agreement.
In any event, counsel argued, even if the arbitrator were to conclude that the process was
flawed, the most the arbitrator should do would be to order that the competition be re -run, which is what the
grievor had sought in her original statement of grievance.
In response to a question from the arbitrator, Ms. Zacks argued that, despite the language
used in Article 17.1.1 of the collective agreement, which failed to mention candidates' skills or abilities, it
was legitimate for the employer to assess these elements, as was held in Re Fanshawe College and
Ontario Public Service Employees Union (unreported award of arbitrator Brent, dated April 19, 1994).
In the course of her submissions, Ms. Zacks referred to Re Conestoga College and Ontario
Public Service Employees Union (unreported award of arbitrator Saltman, dated June 13, 2004), Brown &
Beatty, s, upra, at paragraph 6:3100, Re George Brown College and Ontario Public Service Employees
Union (unreported award of arbitrator Bendel, dated May 24, 1994), Re City of Summerside and Canadian
Union of Public Employees, Local 1174 (1996), 55 L.A.C. (4th) 182 (Murray), Re Seneca College _and
Ontario Public Service Employees Union (unreported award of arbitrator Schiff, dated February 23, 1996),
Re Kingston General Hospital and C.U.P.E., Local 1974 (2010), 191 L.A.C, (4th) 97 (Chauvin), Re Ottawa
Hospital and Ontario Public Service Employees Union (2002), 109 L.A.C. (40) 168 (Kaplan), and Re
Fanshawe College and O.P.S.E.0 1992 CLB 11330 (Devlin).
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IV
On several occasions, arbitrators have questioned whether the use of an interview as the
exclusive selection tool can enable an employer to make a valid assessment of an employee's qualifications
for a job. In North York _General Hospital y._ Service_ Employees International Union, Local 1 on (Liongco
grievance), (2008] O.L.A.A. No. 1, 1 had occasion to review some of the case-law on this question. I stated
the following (starting at paragraph 40);
Arbitrators have cautioned several limes that, while interviews can be a valid selection tool, it is
important that the interview be designed to bring out whether the applicants meet the requirements
of the job. The criticism, valid in my view, has been made that interviews tend to favour applicants
who (to use the vernacular) can 'talk the talk", and that the questions asked often do not probe the
applicants' true ability to perform the work, merely their ability to articulate interesting or insightful
ideas about the job.
For example, in Re Fairview Home Inc., supra, [Re Fairview Home Inc. and Fairview Nurses
M.N.U., Local 21 (1991), 21 L.A.C. (4th) 223 (Cherniack)] arbitrator Cherniack said the following (at
page 235):
An interview can be an artificial assessment of an applicant`s ability to talk, to charm, or to
use words that the interviewer clearly wants to hear. The ability to be articulate, or the
slate of being excited about the prospect of becoming a charge nurse, does not neces-
sarily prove an ability to be a good charge nurse.
Despite the general hesitation on the part of arbitrators in endorsing interviews as an exclu-
sive selection tool, l am satisfied that, in the present case, reliance on the interview was fair and reasonable.
The selection committee, chaired by Ms. Drost, had concluded, on a review of the grievors application, that
she lacked the formal educational qualifications specified in the job poster (a conclusion not challenged by
the union), and had decided to interview her for the purpose of assessing whether, as envisaged in the job
poster, a combination of her education and experience could be considered the equivalent of the required
educational qualifications. In assessing her experience, the committee chose to focus on what she had
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learned in her time as a Customer Service Assistant. In other words, it was concerned, not just with the
quantity of her experience, i.e. the length of time she had worked in this environment, but also with the qual-
ity of that experience, including its pertinence to the job being staffed. Undertaking that inquiry, in my view,
was in full conformity with the "outline of the basic qualifications" stated in the job poster (Article 17.1 of the
collective agreement). An interview was a reasonable method of evaluating the quality of the grievor's
experience in relation to the duties of the job for which she had applied. I am not persuaded that the selec-
tion committee erred by failing to seek out other information about the grievor.
I should note that the union took no issue with the relevance of the questions asked at the
interview or with the selection committee's grading of the grievor's answers.
The grievance is hereby dismissed,
DATED at Thornhill, Ontario, this 27th day of June 2014.
Michael Bendel,
Arbitrator