HomeMy WebLinkAboutUnion 00-11-22
IN THE MATTER OF AN ARBITRATION
BETWEEN:
JOSEPH BRANT MEMORIAL HOSPITAL
BURLINGTON
(the "Hospital/Employer")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 206
OPSEU FILE 99-206-195
(the: "Union")
AND IN THE MATTER OF A JOB POSTING GRIEVANCE
BOARD OF ARBITRATION
Paula Knopf, Chair
Serge Anissimoff, Hospital Nominee
Edward E. Seymour, Union Nominee
APPEARANCES
For the Hospital
D. W. Brady, Counsel
Margaret Young, Technical Director
Laboratory Services
For the Union
Mitch Bevan, Grievance Officer
For the Incumbent
Carol Simpson. on her own behalf
Hearing in this matter was held in Burlington, Ontario on April 11 and
October 19,2000
AWARD
This is a job posting case. The position in issue is that of a
Registered Technologist in the Histology Laboratory. There were seven
candidates for the position. A person with no seniority was awarded the job. The
Union has filed a group grievance in which four applicants allege that the
selection process was fundamentally flawed. The Union seeks an order that the
competition be rerun. The Hospital asserts that it complied with the collective
agreement by selecting the candidate with the most skill, ability, experience and
, qualification. The incumbent was present throughout the proceedings but
decided not to take an active role.
The applicable provisions of the collective agreement are:
13.06 In filling posted vacancies the selection shall be made based
on skill, ability, experience, and relevant qualifications of the
applicants. Where these factors are relatively equal,
bargaining unit seniority shall be the governing factor.
13.07 In matters of promotion and staff transfer, a successful
bargaining unit applicant shall be allowed a trial period of up
to sixty (60) days (450 hours for employees whose regular
hours of work are other than the standard work day) worked
during which the Hospital will determine if the employee can
satisfactorily perform the job. Within this period the
employee may voluntarily return, or be returned by the
Hospital, to the position formerly occupied, without loss of
seniority. Should the employee return or be returned to his
former job, the filling of subsequent vacancies will be
reversed.
In order to appreciate the issues in this case, some medical
background is necessary. Histology involves the preparation of tissues or fluid
samples from organisms, biopsies or frozen slices. These samples are
gathered either in operating rooms or doctors' offices. The samples are
prepared for diagnosis by a pathologist. The registered technologist in the
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Histology Laboratory works with the tissues and body fluids, processing them
and preparing them for slides that will be viewed by a pathologist. This is time-
sensitive work because the need for diagnosis may be urgent. Backlogs are not
tolerated. It is also a demanding job where there is no margin for error because
of the difficulty in obtaining further samples.
The applicants for the position were provincially certified Medical
Laboratory Technologists. The evidence on behalf of the' grievors was
presented by one person who the parties agreed could be considered as
representative of all the grievors. That person is Alice Parker. The grievors'
training in areas of "authorized practice" included
Phlebotomy
Hematology
Immunohematology
Biochemistry
Histology
Bacteriology
- Therefore, all the applicants were trained and authorized to work in the
Histology Laboratory. Ms. Parker described this training as making the
technologist "somewhat fluent" in Histology. The grievors' seniority ranged
, ,
from 9 to 29 years. They worked in other laboratories within the Hospital, such
as the Core Laboratory, which included Chemistry, Hematology as well as the
Blood Bank and the Microbiology Laboratory.
The position in the Histology Laboratory represented a lateral
transfer for the grievors. There would be no increase in compensation or
benefits. However, the job was desirable because it did not involve shift work,
weekends or working on statutory holidays. It was also viewed as "less
demanding" than the work in the Core Laboratory because it dealt with only one
subject.
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On October 14, 1999 the Hospital posted the vacancy for a full-
time registered technologist in the Histology Laboratory. The posting reads:
QUALIFICATIONS:
.
Current CML TO membership
Current two years' experience in Histology
Experience in grossing specimens
Experience in frozen sections, special stains
Experience with Pathology information system an asset
.
.
.
.
RESPONSIBILITIES:
To include, but not limited to, the following:,
. Routine Histology processing including section cutting and
special procedures
. Grossing specimens
. Cytology preparation
EXPECTATIONS
Courtesy and respect for all patients, families and colleagues.
Exhibits behaviour consistent with Joseph Brant Memorial
Hospital's mission, vision and values statements and demonstrates
excellence in patient care and personal and professional
accountability. Regular attendance of all employees is critical to
maintaining this level of excellence.
The candidate who was selected is the incumbent in these
proceedings, Carol Simpson. At the time of the posting she was working as the
"relief' registered technologist in the Histology Laboratory. She had held this
position for the past nine years. She obtained that relief position through an
appointment which does not involve the job posting process.
The Union does not challenge the reasonability or the relevance of
any of the details contained in the job posting. Looking first at the qualifications,
all the applicants were CML TO members. The incumbent, Ms. Simpson, had
more than two years of experience in Histology over her career. Ms. Parker had
.'
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worked in Histology from 1986 to 1988. No other applicants had any working
experience in Histology. The grievors did have experience in frozen sections and
special stains by virtue of their other laboratory work. However, they had no
experience in "grossing specimens." This involved providing a description of the
size, colour and consistency of a sample upon its arrival in the laboratory before
it was put in the cassette for processing. While all the grievors had experience
with information system~, none had experience in the "pathology information
system" per se except for Ms. Simpson. All the grievors had performed routine
histology responsibilities and done cytology preparation in their previous work
and training. There is no issue about their ability to fulfil the "expectations" listed
iri the job posting.
The Union's main complaint in this grievance is over the selection
process adapted by the Employer. The evidence establishes that a series of
questions were developed by the Director of the Laboratory, Marg Young,
together with the Charge Technologist and the Pathologist. These were
structured into a questionnaire. The questions were all assigned a potential
score totaling a possible of 45 marks. The questions were then given to each
candidate by Marg Young at the selection interview. Candidates were not told
that they would be asked questions and would be marked before walking into the
interview. The same questions were read to each applicant. They were told that
their responses would be marked and graded for use in determining the
successful candidate. The candidates were not given the questions in writing.
They were not told the potential score for each question. They were not given a
copy of the question sheet. One candidate did bring in a histology textbook to
her interview. However, she was not allowed to refer to it in formulating her
answers.
The Union does not challenge the propriety of háving the
candidates take an objective test, the substantial fairness of the marks assigned
or the reasonability of the questions that were asked. The Union strenuously
5
objects to the method of testing. The complaint is that the applicants were
unaware until in the midst of the interview that they would be tested and scored.
They were unaware of any other instance when such testing had been done in a
job interview at the Hospital. The grievors believed that they would have
performed much better if they had been forewarned that a test would be
administered. The applicants also thought that the fact that they were not allowed
to do the test in writing or know the marking scheme created a disadvantage.
At the same time, Ms. Parker admits that she was not surprised to
be questioned on histology issues at her interview. She agreed that the
questions were aimed at the "base level" of the "practical" aspects of histology.
Ms. Parker believes that she would have been able to do the work
in the Histology Laboratory at the time of the posting. To support her claim she
points out that she succeeded in winning a second posted position for the
Registered Technologist in the Histology Laboratory four months later. She had
had no further training or experience when she won this position. However she
was able to take up the responsibilities in the laboratory. She testified that she
'needed "some orientation", but that "within one week I was doing cutting, staining
of tissues, sections and special stains." She admits that she was given
orientation by the Charge Technologist and by the retiring technologist whose
position she assumed. There was a 3%-week overlap while she was an extra
person in the laboratory before the retirement took effect. She described her
orientation as "a good introduction." She agreed in cross-examination that after
four months in the position she was working at about an 80% capacity in terms of
the "quality and quantity of work" she was performing. She had not yet been
oriented in Cytology. She agreed that she "could possibly" work "a little bit faster"
and that her skill could be improved.
From the Hospital's perspective, the circumstances in the Histology
Laboratory were critical factors in how it approached this job posting. The
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Histology Laboratory is staffed by two full-time registered technologists and the'
Charge Technologist. There was also one relief technologist who filled in during
vacation, sickness or peak periods. This particular vacancy occurred when a
technologist who had been in the position for 18 years gave only a few days'
notice of her intention to retire within two weeks. She had two weeks' holidays
owing to her at the time. Accordingly, almost immediately upon giving notice,
she left the Hospital and never returned to work. This also occurred two weeks
away from the planned implementation of a new computer system in the
Histology Department. Part of the planning process involved the Charge
Technologist in Histology who was involved in training off site and who would
assist with the training of other staff for the implementation of the system. This
took her away from significant portions of her "hands-on duties" in the actual
laboratory.
Ms. Young is the Director of Laboratory Services. She found
herself faced with the imminent resignation of one of the two registered
technologists in Histology and a charge technologist who was handling additional
responsibilities outside of the laboratory at the same time. Ms. Young described
the laboratory's resources as being "stretched" at the time. She utilized the relief
technologist. But the additional responsibilities of the Charge Technologist put a
further load on the remaining Registered Technologist. This meant that there
would be limited time and resources available to orient a new Registered
Technologist in May when s/he would assume the new duties. Another area of
concern for the Hospital was the fact that the remaining full-time Registered
Technologist was planning to retire at the end of the year. Finally, Ms. Young
was also aware that summer vacation schedules were about to come into play.
All these were factors in Ms. Young's mind when she embarked upon the
process of filling the vacancy.
The method of selection was devised by Ms. Young on her own.
She did not get any assistance frorn Human Resources. As stated above, she
. .
7
created the questionnaire with the assistance of the Charge Technologist and
the Pathologist. Ms. Young administered the test at the interviews, recording
the answers and the results. She said she tried to be "generous" in her marking.
She did this alone because it w~s her "normal practice." The Pathologist has
never been involved in "choosing staff". The Charge Technologist is a member
of the bargaining unit and not involved in hiring or selecting.
Ms. Young also explained that she decided to apply a point system
for experience in her selection process. She was looking for someone with
"current experience" which she considered to be two years of experience in the
last three years. She assigned 25 points for this. She also allowed 25 points for
other past experience in Histology. She explained why she gave so much weight
to experience:
We had a situation where we were about to start up a computer
program which took major time out of the Charge Technologist. I
wanted someone able to step into the job with as little startup time
as possible. One thing you get with experience is the combination
of skill with speed.
When Ms. Young applied her scoring system, the following was the result
Experience Score Total
(25) (25) (45) (95)
Over 2 yr. Recent Questionnaire
Histology Within 3 yr
A 0 0 25.5 25,.5
B 0 0 15.5 15.5
C 25 0 30 55
0 0 0 24.5 24.5
Incumbent 25 25 39.5 89.5
F 13 0 31.5 44.5
G 0 0 21 21
8
Ms. Young did not consult the applicants' personnel files or
resumés because all the applicants worked under her supervision in the
laboratory and were well known to her.
The particular circumstances of the incumbent should be outlined.
At the time of the posting, she was the relief technologist in the Histology
Laboratory. Given her relief status, she had no seniority in the bargaining unit.
She had been working in this relief capacity for approximately six years. Unlike
the grievors, her education included advanced training in Histology. She helped
develop courses in Histology and taught at the Mitchner Institute which provides
training for registration and post-registration in the health disciplines. Some of
this background and experience are not listed in her resumé. However,
Ms. Young knew the details of her experience because of her long working
relationship with Ms. Simpson.
Ms. Young selected Ms. Simpson for the position because she
scored the highest when all the categories were totalled. Ms. Young said she
had "no doubt" that Ms. Simpson was the candidate who could best "step into
, the job with little or no training." Ms. Young did not consider that any of the
other candidates were "relatively equal" to Ms. Simpson.
Cross-examination of Ms. Young revealed some difficulties with
how she rated the candidates. For example, Ms. Young gave Ms. Simpson 25
, ,
points for having three years of current experience in Histology. However, while
Ms._Simpson had done relief work for the past six years at the Hospital, her
hours only equated to ten months of full-time work. Ms. Young explained that
she did not' look at the number of hours, but rather looked for two years of recent
work in the position. She admitted that she would have credited even one shift
of work in Histology in the last three years as deserving 25 points of credit. It is
not the amount of experience that she was rating, it was simply the actual recent
work in the field.
9
Submissions of the Parties
The Union's Submissions
The Union argues that the selection methodology was so
fundamentally flawed that the competition must be rerun. The Union describes
the scoring system as being "out of wack." The Union says that it is unfair that
50 marks, or 53%, were assigned to the "experience" factor. It was said that this
meant that Ms. Simpson could walk into the interview with a score of 53%
without having to answer any questions correctly. It was argued that this
created an unfairness because it gave a relief worker an unfair advantage over
members of the bargaining unit. This was because experience could be gained
without the accumulation of seniority. While no allegation of bad faith was made
in this case, it is argued that this practice could allow an employer to circumvent
the seniority provisions in Article 16.06. It was submitted that the competition
should be rerun again and that the experience factor should be put into a
"proper" perspective. The Union suggests that no more than 10% should be
assigned to experience in a competition such as this.
The Union also attacks the fact that Ms. Simpson was assigned
25 points out of a possible 25 for having "recent" experience. It was stressed
that the actual number of hours she worked in the last six years only amount to a
total of 10 months of full-time work. While there is no claim that bias existed in
this case, it was said that this type of scoring creates an appearance of bias.
Further, the fact that Ms. Young devised the method on her own, without the
benefit of Human Resources, also opens the door for the appearance of bias.
The Union also attacks the test that was administered. The
Hospital was faulted for not telling the candidates of the fact that they would be
tested in the context of a hospital that had never before applied such tests in job
10
competitions. It was argued that unfairness was created by the fact that the
candidates were not given copies of the questions, were not allowed to write their
answers and were not told how much each question would be worth; nor were
they given an opportunity to review their answers or add anything to them at the
end of the test. It was submitted that this resulted in an unfairness because none
of the grievors had an opportunity to work in the Histology Laboratory and
acquire the hands-on experience that would enable them to answer the practical
questions with the facility of Ms. Simpson. The Union emphasizes that it has no
problem with the concept of testing candidates for jobs like this because testing
allows the employer to make an objective .and fair assessment of the applicants.
However, the circumstances of the testing in this case are highly criticized.
The Union also attacks the procedure adopted by the Hospital. It
was argued that it is fundamentally unfair to have only one management person
involved in the selection from the beginning to the end. It was emphasized that
Ms. Young had "total autonomy" and no one to check on her process along the
way. Ms. Young was faulted for not looking at any of the candidates' personnel
files and for not considering the relative merits with regard to the "expectations"
listed on the job posting.
The Union relies on the following in support of its application to
have this job competition rerun: OPSEU (Clipperton) and Ministry of Community
and Social Services) GSB File 2554/87 (Watters), OPSEU (Savarimuthu) and
Ministry of Health, GSB File 2707/90 (Dissanayake) and Brown and Beatty,
Canadian Labour Arbitration, paragraph 6:3340.
11
The Hospital's Submissions
Counsel for the Hospital argued that the Union's submissions
effectively amountto a request to amend the collective agreement. It was
argued that the Union's submissions essentially amount to an application to
eliminate the term "experience" from the collective agreement in an attempt to
create a level playing field for all candidates. It was emphasized that the
collective agreement allows for and dictates that experience is an appropriate
~- factor to consider in terms of job competitions and that the Hospital properly
applied the collective agreement in this case.
Counsel for the Hospital also argued that the alleged "flaws" in the'
competition do not establish a violation of the collective agreement because the
evidence ultimately reveals that the incumbent was a superior candidate. It was
submitted that the Hospital should not be faulted for not giving advance rJotice of
the fact that it would be testing candidates. It was emphasized that all
candidates expected to be questioned about Histology. It was said that they
knew or ought to have known that the purpose of an inteNiew was to "put their
'best foot forward" and that they should have prepared for the inteNiew. Further,
it was said that the situation at the Hospital at that time was such that it was
appropriate to place heavy emphasis on experience as a factor. This was
reflected in the fact that the questions in the test were of a practical nature
because the Hospital needed someone who could step in and do the job with
little or no training. The situation at the Hospital at the time of this posting was
contrasted with the situation four months later when Ms. Parker did succeed in
winning a position. At that point there was an opportunity to give her proper
orientation with a 3% week overlap of the retiring technologist and when the
Charge Technologist was not occupied with other duties. Even in that situation,
Ms. Parker admitted that after four months in the job she was not completely "up
to speed" and was only working to 80% capacity. All this was said to be
12
significant in assessing the evidence in the case at hand where the Hospital
needed someone with a "present ability" to do the job.
Further, the Hospital emphasized that the fact that the incumbent
had experience and knowledge in the field cannot be discounted or held against
her in the assessment of this evidence. It was suggested that an acceptance of
the Union's submissions would mean that a test should be devised that
minimizes an enquiry into the fundamental skills of the position. It was submitted
that the Union should not be able to sustain an argument that proposes that it is
unfair to give an advantage to a person with experience in the job given the
language of this collective agreement. It was also stressed that there is no
formula in the collective agreement or the case law that sets the weight that
ought to be given fòr experience. The Board of Arbitration was urged to refrain
from assigning a particular level or factor that should be assigned to experience.
This was said to be the sole prerogative of management. It was submitted that it
has long been recognized in arbitral jurisprudence that unless management has
acted in an arbitrary, discriminatory or bad faith manner, or has violated the
collective agreement, management's decisions with regard to the process and
methodology of selection should not be overturned.
Further, the Hospital argued that it was not inappropriate for
Ms. Young to refrain from reviewing the personnel records or considering the
"expectations" in the job posting. Given the number of candidates, their working
relationship with Ms. Young, and the smaJl size of the work place, it was argued
that she had sufficient knowledge to be able to make an informed decision about
their experience and qualifications. Alternatively, it was argued that all the
candidates were_relatively equal in terms of qualifications and experience.
Therefore, the test was an appropriate method to elicit the differences in terms of
their skill, ability, qualifications and experience.
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Further, it was argued that there should be no criticism of the fact
that Ms. Young made the decision on her own rather than with a panel of
selectors. It was argued that no cases dictate that a panel must be used.
Further, in the circumstances of this Hospital, there were no other people
available who could assist with the selection. In addition, this has been the
method adopted without criticism for a long period of time.
Counsel for the Hospital urges the Board of Arbitration to focus on
the results of the selection process. It was argued that the evidence shows that
the grievors had no current experience in Histology, no experience in grossing of
specimens, no experience in the Histology information system and no experience
in Cytology. While it was conceded that a Board of Arbitration could suggest
methods of selection that might have been better in this case, it was argued that
the methodology resulted in the choice of a significantly superior candidate with
the present skill, ability, experience and qualifications for the job in the Histology
Laboratory. The particular circumstances in the Laboratory were emphasized.
Counsel argued that the Hospital was "in a bind" and needed someone with
present skill and ability. It was argued that the specifíc situation should be
-applied to the language of the collective agreement. Further, it was emphasized
that the Hospital took into consideration relevant considerations, there is no
evidence of bias, there are no allegations against the type of questions that were
asked during the examination and there is no allegation that the methodology
was devised to ensure a foregone conclusion.
The Hospital relies on the following cases in support of its approach
and position: Grace Maternity Hospital and Canadian Brotherhood of Railway,
Transport & -General Workers, Local 606 (1986),27 LAC. (3d) 204 (DeMont),
'- ,
, , "
, Cityof Lethbridge and Cànadian Union of Public Employees} Local 70 (1990),
13 LAC. (4th) 315 (McFetridge) and Whitecourt-Fox Creek General Hospital
District No. 97 and United Nurses of Alberta, Local 149 (1994), 39 LAC. (4th)
430 (Smith).
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Replv Submissions
By way of reply, the Union submitted that the fact that Ms. Parker
,," '
was able to perform many of the duties in Histology within one week when she-
got appointed to the position four months later should be considered as evidence
of the fact that she possessed the "present ability" to do the job back in April.
Therefore, it was argued that the Hospital was not really in a position that it was
essentially forced to appoint a person like the incumbent.
The Decision
The parties do not disagree about the principles that govern this
arbitration. They agree that t~e collective agreement language is determinative
and that principles of fairness apply. Both parties referred to extracts from
Brown and Beatty's Canadian Labour Arbitration, 2nd edition 1984.
Para. 6:3100, at p. 298:
[More specifically, it is generally conceded] that unless there is
evidence of discrimination, bad faith, ... or [that] the employer
exercised its judgment unreasonably, arbitrators should be loath
to interfere with management's decision.
Para.6:3300, at p. 316
Nevertheless, regardless of the type of seniority clause which the parties
have included in their agreement, it is also firmly settled that an ,
employee's claim that he was improperly denied a particular job would
prevail if it could be established that the standards and criteria relied
upon by the employer in making its judgment were not contemplated by
the collective agreement and did not bear any reasonable relationship to
the work to be done, or that they were not invoked in good faith, or that
such standards were not fairly or uniformly applied to all applicants.
15
Para. 6:3340
In order to assess the requisite ability and qualifications of employees for
a particular job, arbitrators recognize that it is quite proper for an
employer to require the applicants to submit to examinations and other
tests, including general aptitude tests, to demonstrate their skill and
ability. And at least one arbitrator has upheld the propriety of testing in
the bumping, as opposed to job competition, context. Those tests must
be administered fairly, without bias, and meet certain standards of
relevance, reliability and validity. Specifically, in order that such tests
may be said to reasonably reflect an employee's ability and qualifications,
arbitrators routinely inquire into the reason for the institution of the test,
the adequacy of the preparation that was afforded to the employee prior
to the test, the method and circumstances under which the test was
administered the reliability of the marking of the test, and the relevance of
the test to the particular work to be performed.
The parties disagree about whether the prescriptive process adapted by
the Grievance Settlement Board should be taken or whether deference should be given
to management as is suggested by some arbitrators. When the Grievance Settlement
Board was considering a job competition under the collective agreement which
required that service shall be considered where qualifications and ability are relatively
equal, the following criteria were established to judge a competition:'
3.
4.
5.
1.
Candidates must be evaluated on all the relevant qualifications for
the job as set out in the Position Specification.
2.
The various methods used to assess the candidates should
address these relevant qualifications insofar as is posSible. For
example, interview questions and evaluation forms should cover all
the qualifications.
Irrelevant factors should not be considered.
,All the members of a selection committee should review the
personnel files of all the applicants.
The applicants' supervisors should be asked for their evaluations of
the applicants.
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6.
Information should be accumulated in a systematic way concerning
all the applicants.
(Ministry of Health, supra).
On the other hand, the Employer adopts the approach of Arbitrator Ponak cited in
the City of Lethbridge, supra:
It may be that someone else doing the assessment could conceivably
elect to use different criteria or assign different weights. However, the
question of whether someone else (or the board) might do it differently
is not the issue --the issue is whether the criteria and weighting used in
this case were fair and reasonable. Based on the evidence presented
it is the board's conclusion that the criteria and weighting used were
fair and reasonable in the circumstances...
It is not necessary to select a specific approach in this case or to try to
reconcile the two approaches. Suffice to say that the approach of this Board of
Arbitration is to ensure adherence to the language of the collective agreement that
the parties have negotiated and to apply arbitral principles that assist in that
analysis.
This collective agreement creates a classic competition clause.
Selection is based on "skill, ability, experience and relevant qualifications." Only
when and if these factors are "relatively equal," will bargaining unit seniority be a
factor in selection. Therefore, the task of the Board of Arbitration is to determine if
the Employer has properly based its selection of the registered technologist on skill,
ability, experience and relevant qualifications.
Frankly, the analysis of the evidence in this case leads to a very
problematic conclusion. The evidence establishes very conclusively that the
incumbent, Ms. Simpson, had significantly greater skill, ability, experience and
relevant qualifications to do the job at the time of the competition. She had superior
training in that she had advance certification in Histology. She had "present skill"
17
and ability as evidenced by her test results and the fact that she was currently
performing the actual job in question on a relief basis. She was the only candidate
with actual experience on the job. While the evidence also shows that it would
have taken little for a candidate such as Ms. Parker to step into the job and develop
specific Histology skills, the evidence is still overwhelming that Ms. Simpson was a
superior candidate in all categories. She was the only candidate who had actual
experience in grossing specimens. She was the only candidate who had worked in
Cytology. She was the only candidate with experience in the Pathology Information
System. The arbitral process and hearing allowed us to compare the grievors
through their representative candidates. Even seen in their best light, they are not
comparable in the field of Histology to Ms. Simpson. The collective agreement
allowed management to select the best candidate if the skill, ability, experience and
qualifications were not relatively equal. On the facts of this case, it cannot be
concluded that those relevant factors were relatively equal.
But the problem in this case is that even if the best candidate was
selected, there were major and significant flaws in the way that the selection
process was undertaken. Management cited the Lethbridge case, supra, which
quotes with approval the following extract:
Regardless of the relative weights attached to competence and
seniority, the measurement of competence must be carried out in a
manner which is reasonable in the circumstances .... and involves a
fair, appropriate and unbiased procedure.
There is no allegation of bad faith in this case. But we can and should look at the
fairness and appropriateness of the procedures. In doing this we agree that we
should not impose our own notion of an ideal or theoretically 'perfect selection
process on the Employer. Nor do we prescribe a methodology. However, we
must examine what was actually done and assess it against an objective notion
of fairness and reasonability.
OJ "
18
Looking first at the weight given to experience in this case, we do
not conclude that it was unreasonable. This is not to say that assigning a factor
of 53% to experience is appropriate in all cases. But in the situation facing the
Hospital in April 1999, the heavy weighting of experience was understandable.
The laboratory faced the difficult situation of a registered technologist retiring with
virtually no notice at a time when the Charge Technologist was preoccupied with
other, important duties that took her away from her bench duties for considerable
amounts of time. This left just one full time registered technologist with
responsibilities for ongoing laboratory duties. That technologist was known to be
, intending to retire within a few months. The overall situation would have impact
on the ability of the laboratory to orient and supervise a new technologist. The
situation demanded that the new technologist be able to come in and do the job
with little or no supervision or training. By giving high weight to experience, the
Hospital was reflecting its need to select someone who had present skill. This
type of weighting may not be appropriate when the laboratory is fully staffed and
there would be an opportunity to overlap and orient. However, it cannot be
considered that the heavy weighting of experience was unreasonable in the case
at hand.
Having reached this conclusion, it must b~ ~aid that the score
credited to the incumbent's experience was not reasonable. She was given 25
out of 25 marks for having three of years of current experience. While it is true
that she had worked as a registered technologist in Histology for the last six
years, she did this on atelief basis. Her actual experience in that period only
amounted to the equivalent of ten months of full-time work. Therefore it was
unfair and unreasonable to give her a perfect score in this category. Her
experience should have been prorated to reflect less than the full amount of
current experience being sought.
The other aspect of unfairness that was revealed in this case
concerned the methodology of testing. The candidates were all questioned,
19
tested and marked in the same way. But none of them expected that the
interview would include a formal testing process. This had never been done
before at the Hospital. There is nothing unfair or wrong with testing per se. The
Union properly emphasized that tests can provide an objective and accurate
measure of skill and ability. But in this case, the candidates were disadvantaged
by having no foreknowledge of the fact that they would be tested. They were not
given an opportunity to "bone up" on their technical knowledge of Histology or to
prepare for a test situation. While it was admitted that they knew that they would
be questioned on Histology, there is a very different expectation if one anticipates
an interview format as opposed to an examination format. Further, examination
questions are more fairly administered when candidates are told how they will be
marked and told the total amount of points assigned to each question. This gives
the candidate an idea of the depth of answers that are to be expected. In the
case at hand, candidates were not forewarned of the fact that they would be
tested or advised of the marking scheme. This means that they were all
disadvantaged by the process. As the test was very practical in nature, it meant
that the only one who would score well would be a person actually doing the job.
The test scores reflect this reality.
There is a further difficulty with the Hospital's approach. Ms. Young
worked with and knew all the candidates well. She was the supervisor of the
laboratory. She saw no need to elicit resumés or peruse their personnel files.
This is a small work place. Perhaps this approach is understandable. But this
meant that Ms. Young relied on her own personal knowledge in assessing the
applicants. She did not ask about their experience in their interviews. She also
supplemented information from their applications and resumés with her own
personal knÒwledge about the candidates. There IS no suggestion that this
resulted in her overlooking or failing to consider any relevant or important
information. But the process itself invites criticism. In another bargaining unit
with another supervi~or, this type of process could also invite or support an
allegation of bad faith. It is to be emphasized that there was no allegation of bad
20
faith here. But it is recommended that selectors not restrict themselves to
reliance on personal knowledge.
..)
Finally, it should be noted that the scoring method, and the
weighting of the experience factor was revealed for the first time during the
cross-examination of Ms. Young. While Ms. Young believes that she had
communicated this methodology to Human Resources, it became clear in the
hearing that the methodology was a surprise to both the Union and management.
The Union did not suggest and there is no evidence of any attempt at subterfuge
or bad faith. However, it is very unfortunate that information as important as this
surfaces at an arbitration hearing. The proper way for this kind of information to
, be communicated is in the competition process initially so candidates know
exactly how they are going to be assessed. An open rating scheme leads to a
better understanding and acceptance of the result. Further, information like this
should also be revealed in the grievance step process. That process is designed
as a method of dispute resolution. Resolution cannot take place in a factual
vacuum. The Union is entitled to know the basis of the decision-making process
in a job competition case so that it can make an informed choice about the
appropriateness of proceeding to arbitration. Withholding or failing to reveal
information can lead to unnecessary litigation and/or suspicions of fabrication.
Fortunately, there is no suggestion that there has been a deliberate attempt to
withhold information or to fabricate in this case. But it is hoped that a similar
situation never arises again.
Having revealed all the difficulties with the selection process, we
must now return to the arbitration board's task of determining if there has been a
violation of the 'collective agreement. If the selection process is so fundamentally
flawed that it prevented the Employer from making a fair or rational selection of
the candidate in accordance with Article 13.06, then the result should not be
allowed to stand. But if we analyze the effects of the errors and the process in
this case we are still left with the conclusion that the Employer selected the
~
. ~
21
candidate who was significantly superior to the others in terms of skill, ability and
experience. Even if the incumbent's experience was properly prorated, she
would still have scored well above the other candidates. For example, if she was
given only 7/25 for current experience, her final total score would have been 74.5
compared to the next closest score of 44.5. This would have credited her with
less than one-third of the available points for current experience and would have
properly prorated her actual full-time experience. However, it still leaves her
significantly higher than the others. Further, if we adopt the Union's concerns
that the testing prevented the candidates from demonstrating their proper level of
skill and ability and gave Ms. Simpson an unfair advantage, we can compensate
for this by deeming that all the candidates achieved the same result as the
incumbent, Le. 39.5 out of 45. If we deem those scores into the totals of the next
rated applicants, they would only achieve scores of 65.5 or 54. Again, these
scores are significantly different from the incumbent's adjusted score of 74.5.
Seniority only becomes a factor under the collective agreement where skill,
ability, experience and qualifications are "relatively equaL" With the Union's
concerns taken into account and the scores adjusted, a ten per cent differential
still remains. In this case, it must be concluded that despite the errors in
methodology, the results reflect a significantly superior candidate for the specific
circumstances at the Hospital at the time of this posting.
22
Accordingly, despite the able submissions of the Union, the grievance is
denied.
DATED at Toronto, Ontario, this 22nd day of November, 2000.
///"
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CMair I I
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I concur
"Serge Anissimoff"
Employer Nominee
Î concur
"Edward E. Seymour"
Union Nominee