HomeMy WebLinkAboutHemmerling - 03-09-02
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IN THE MATTER OF AN ARBITRATION
BETWEEN
SUDBURY REGIONAL HOSPITAL
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
LOCAL 659
HEMMERLING JOB POSTING GRIEVANCE
Arbitrator:
Richard Brown
For the Union:
F or the Employer:
Will Presley
Geoff Jeffrey
Hearing:
June 19, 2003
Sudbury Ontario
Last Written Submission:
September 5, 2003
Susan Hemmerling has grieved the employer's decision not to appoint her to the
position of senior technologist in hematology. Ms. Hemmerling's seniority date is
June 28, 1976. The job was awarded to Loreen Vino whose seniority date is June 8,
1981. Ms. Vino attended the hearing, asked a question of one witness and submitted
written argument.
On the first day of hearing, the parties fashioned a "process agreement"
narrowing the issues in dispute:
I. The issue to be determined by the arbitrator, Mr. Brown, is whether the
Union has established, on the basis of the evidence to be adduced, that the
competition process was fundamentally flawed, with respect to:
a) The weighting of the components of the competition form and the
consideration of candidates' work record and internal references and the
use of a written test; and
b) The appropriateness of certain questions in the competition process,
namely questions 1,2,7,10, II, 12, and 13.
2. It is understood by the parties that evidence as to the relative qualifications
of the grievor and the incumbent will be inadmissible.
3. If the arbitrator determines that the process is fundamentally flawed, the
grievance will be upheld and the Hospital will be required to re-run
competition (only the Grievor and the incumbent to be considered).
4. If the arbitrator determines that the Union has failed to establish that the
process was fundamentally flawed, the grievance will be dismissed.
5. If the arbitrator determines that a flaw exists but is unable to determine
whether it is a fundamental flaw, the arbitrator will advise the parties, and
the arbitrator will retain jurisdiction to hear further evidence and
submissions on this issue.
6. The parties agree to adjourn this matter for a day of hearing for the purpose
of hearing evidence and submissions on this issue.
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I
The job posting, dated March 1,2002, lists the following "qualifications":
. graduate of recognized Medical Laboratory Technologist program
. current registration with the College of Laboratory Technologists
. minimum of 7 years relevant experience in Hematology
. A.R.T. or equivalent in Hematology preferred
. Positive work record and good attendance record
. Good Organizational and interpersonal skills
. Ability to work independently and as a team player
. Good communication skills
There were four people on the selection panel: (1) Rick Mancini, laboratory
manager; (2) Pam Kirwan, laboratory supervisor; (3) Wayne Auchinleck, human
resource consultant; and (4) Dr. Michael Rutherford, pathologist. The first three
panel members testified at the hearing.
The selection panel awarded marks to candidates under three headings:
. professional designation (maximum of 4 marks);
. additional courses (màximum of 2 marks); and
. interview (maximum of 92 marks).
The highest total score possible was 98 and the interview had a weighting of 92 out
of 98 or 93.8%.
Thirteen questions were asked at the interviews. Six questions, worth a total of
32 marks, were "behaviour-based" and required a candidate to describe an occasion
when she had demonstrated a particular skill-i.e. leadership, communication, team-
building, teaching, conflict resolution and technical writing. Two questions, worth a
total of24 marks, probed a candidate's technical ~owledge of hematology. The
remaining five questions, worth a total of 36 marks, were about work experience,
vision for the laboratory when consolidated at one site, professional development,
goals and miscellaneous matters. Two questions out of thirteen, worth a total of 24
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marks were given to the applicants a week in advance so they could prepare a
response for presentation at the interview.
The selection process gave little weight to how the two applicants had
perfonned on the job over the more than two decades each of them had been
employed as a medical laboratory technologist by the CUITent employer or one of the
three hospitals merged to form the new regional health-care facility in 1997. Ms.
Kirwan testified perfonnance appraisals were not considered because none were
found in personnel files. Those who had fonnerly supervised or managed the
applicants were not consulted. The CUITent manager and supervisor for both
applicants, Mr. Mancini and Ms. Kirwan respectively, were on the selection panel,
but the marking scheme did not permit them to take into account their prior
knowledge of either candidate's job performance. The selection process required
each applicant to be judged exclusively on the basis of her professional designations,
additional courses and answers given at the interview. Answers to behavior-based
questions were the only avenue by which their job performance was considered by
the selection panel.
II
The union contends the competition process was "fundamentally flawed due to the
94% weighting on the interview itself' and "this fact alone is sufficient to require a
re-run of the competition." In support of this contention, the union relies upon the
following passage from Leading Cases on Arbitration by Mitchnick and Etherington:
In recent years, many arbitrators have held that undue reliance on an
employee's interview perfonnance created a fatal flaw in the selection process.
In such cases, excessive emphasis on the interview has often come at the
expense of a more balanced consideration of other relevant factors, including
work history, past training, performance appraisals, comments of supervisors
and coworkers, and test scores. The risk of placing too much reliance on an
interview is especially acute where the Grievor has had significant work
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experience in the employer's establishment, since this is likely to offer a more
dependable prognosis of future performance than the ability to communicate at
an interview. (at 19.4.2; emphasis added)
The authors suggest jobs should be award based upon not only interview results but
also past performance on the job as measured by performance appraisals and
comments of supervisors. Two awards are cited as illustrative of the approach
generally taken by arbitrators: University of Toronto and Canadian Union of Public
Employees (1995), 52 L.A.C. (4th) 387 (Burkett); and Greater Niagara General
Hospital and Ontario Nurses' Assoc. (1997), 60 LA.C. (4th) 289 (Devlin).
The grievor in University of Toronto was rejected for the position of lead hand
because his confrontational behavior at the job interview was thought to demonstrate
he lacked of the necessary judgment and inter-personal skills. The selection panel
ignored his seventeen-year history of employment, including the two most recent
years spent in another lead-hand position. Arbitrator Burkett wrote:
[T]his process was fundamentally flawed. It was fundamentally flawed by
reason of the panel's decision not to consider the grievor's seventeen year
work history, including the most recent two years in a lead hand position. The
panel, by their own admission, relied exclusively on the interview performance
of the grievor in finding him unsuitable while, at the same time, it had prior
work related recommendations before it in deciding that the other candidates
were suitable and otherwise qualified.
The members of the interview panel relied solely on the interview of
Mr. Kyriakopoulos to conclude that he lacked both the judgement and the
interpersonal skills necessary to be a lead hand caretaker working in the
student residences. While the cases cited by the University stand for the
proposition that these attributes can be assessed in an interview, they do not
stand for the proposition that the assessment of these attributes should be
restricted to performance in an interview. As arbitrator Chemiak was careful to
observe in Re Fairview Home Inc. (supra):
Interviews cannot and should not be used however as a complete
method of assessment. The ability to conduct oneself during an
interview is only one facet of an employee's abilities, and often it is not a
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particularly significant or relevant facet. So much depends
unfortunately, on the ability of the interviewer to go beyond the surface
impressions in the artificial atmosphere of an interview and probe
deeply into the applicant's vision and knowledge."
The arbitrator went on to comment that the employer should have considered
the work history of the two applicants as shown through their performance
appraisals and should have spoken with their supervisors. Arbitrator Brandt
reached essentially the same conclusion in his Roman Catholic Separate
School Board award, (supra). (pages 7 and 8; emphasis added)
As well as saying job performance should be taken into account, Arbitrator Burkett
made some comments about how it should be measured. He cited with apparent
approval Arbitrator Cherniak's conclusion that consideration should be given to
performance appraisals and comments by supervisors. Dealing with the facts before
him, Arbitrator Burkett faulted the employer, not for considering the comments of
supervisors per se, but for using such remarks for some candidates while not doing
the same for the grievor.
In Greater Niagara General Hospital, the selection process for the position of
charge nurse in the operating room was based upon an examination, with a weighting
of 15%, and a behaviour-based interview, with a weighting of 85%. Allowing the
grievance, Arbitrator Devlin wrote:
There is no question that an interview may be a useful tool in assessing
applicants for a job vacancy. ... Nevertheless, as pointed out by the
Association, the B.B.!. [behaviour-based interview] depends largely on an
applicant's ability to recall and recount appropriate anecdotes and the
applicant's mark may vary based on the nature of the anecdote selected.
Moreover, the B.B.I. process is premised on the theory that the best predictor
of future performance is past behaviour in similar circumstances. This theory,
therefore, would appear to support consideration of actual job performance. In
any event, as noted by the Association, there are a number of awards in which
it has been held that it is inappropriate for an employer to rely solely on test
scores or interview results. Instead, it has been determined that a balanced
assessment requires a consideration of all relevant factors, including test and
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"
interview results, on-the-job performance, related courses and performance
appraisals: see, by way of example, Re Inglis Ltd. and US. W. Loc. 4487
(1979),22 LA.C. (2d) 175 (O'Shea); Re Winnipeg (City) and C. UP.E., Loc.
500 (1990), 12 LA.C. (4th)231 (Freedman), and Re F airview Home Inc. and
Fairview Nurses MNU, Loc. 21 (1991),21 LA.C. (4th) 223 (Chemiak). (pages
305 and 306; emphasis added)
The arbitrator awarded the job to the grievor based upon her twenty years of
experience in an operating room, her designation as acting charge nurse on evenings
and weekends, and the high ratings she had received in performance appraisals.
The union cited three additional cases where employers were faulted for
overlooking job performance: Victoria General Hospital and Canadian Brotherhood
of Railway, Transport & General Workers (1991), 21 LA.C. (4th) 185 (Sloan);
York-Finch General Hospital and Ontario Nurses Assoc., unreported award dated
October 25, 1991 (Burkett); and Elgin County Roman Catholic Separate School
Board and London & District Service Workers' Union, unreported award dated April
27,1992 (Rose).
The employer relies upon two awards dealing with interviews and indicators
of past performance on the job: Ottawa Hospital and Ontario Public Service
Employees' Union (2002), 109 LA.C. (4th) 168 (Kaplan); and Sudbury Regional
Hospital and Ontario Public Service Employees Union, unreported award dated
January 31, 2002 (Burkett). The grievor in Ottawa Hospital was denied the position
of charge technologist based solely upon her resume and interview. Her grievance
was dismissed based upon the following reasoning:
[T]he union took the position that the selection process must assess the ability
of the candidates to do the job, not just the ability of the candidates to perform
well in an interview describing how they do the job. In my view, that argument
might, in some cases, have some merit. It is not persuasive in this case,
however. This job requires a person to perform, under pressure, demonstrate
initiative and take action. I cannot conclude in these circumstances that
questions that ask the applicants how they would respond to particular
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situations-the very situations they can expect to face when doing the job--
fail, given their obvious connection to the job to be done, to assess the ability
of the applicants to perform the position. (page 183)
Arbitrator Kaplan did not rely upon any previous awards and his ruling is at odds
with all of the earlier decisions mentioned above. Moreover, the arbitrator's
reasoning is not persuasive. He may be correct in saying an interview is a way to
evaluate a candidate's ability to perfonn under pressure, demonstrate initiative and
take action, but his analysis overlooks entirely the important point made by
numerous arbitrators-an interview is not the only one way to assess the attributes of
a candidate and, like all other ways, it has its limitations. Those arbitrators held an
applicant's past performance on the job is another useful indicator of qualifications
and should be considered along with interview results. I agree with the prevailing
arbitral consensus.
Sudbury Regional Hospital, involving a recent job competition under the
collective agreement that preceded the one applying to the case at hand, deals with
how job perfonnance should be measured. Employer counsel contends this decision
precluded the selection panel from considering references provided by internal
referees, particularly those "in a management position senior to the selection panel."
In the earlier case, the grievor achieved an interview score of 144.5 and the
successful applicant a score of 145.5. Faced with these marks, the selection panel
sought references for both candidates from the director of medicine and another
manager. The job was awarded based upon these references. Formal performance
appraisals existed but were ignored. Allowing the grievance, Arbitrator Burkett
wrote:
I have a grave concern with respect to the use of so-called internal references
subsequent to the evaluation of each of the candidates by the selection
committee.
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Ms. Paquette and Ms. Desjardins were in a virtual dead-heat on the basis
of the assessment carried out by the selection committee. Indeed, the opinion
of internal references were sought because they had been assessed as
relatively equal. We must find, therefore, that for the purposes of the
application of article 13.06, they were relatively equal in qualification, and,
given the grievor's excellent performance appraisal, would have remained
relatively equal in qualification even if the successful candidate also had an
excellent appraisal.
Under this collective agreement seniority must be used as the basis for
selection where, as in this case, two candidates are "relatively equal" in
qualification. This collective agreement does not contemplate that in the event
of relative equality the selection shall then be made on the basis of the opinion
of senior managers who mayor may not be equally familiar with each of the
candidates, who mayor may not be predisposed toward one or other of the
candidates, and whose views may carry undue weight because of the position
they occupy. ... While consideration should be given to each candidate's work
history, an employee's work history is to be found in his/her annual 7
appraisals as attested to by his/her manager and signed off by the employee. It
is not to be found in the views of internal references brought to bear after
proper evaluation of the candidates by a duly constituted selection committee
that is privy to all relevant information. (pages 7 and 8; emphasis added)
The italicized passages indicate Arbitrator Burkett was concerned, not only about the
use of internal referees in general, but also by the way the selection committee made
its decision to use them in this particular case. The decision was made after the
committee had determined the candidates to be relatively equal and because that
determination required some means to break the tie. Mr. Burkett held this decision-
making process violated the provision in the agreement designating seniority as the
tie breaker. As to the use of internal references in general, he expressed the view they
are less reliable as a measure of job performance than performance appraisals, and he
faulted the employer for relying upon internal references while overlooking the
grievor's excellent rating on such an appraisal. On the facts before him, he was not
required to decide whether internal references should be utilized as an indicator of
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job performance when no formal appraisals exist and where there is no tie to be
broken.
III
Turning to the case at hand, I conclude the selection process was fundamentally
flawed because it was based largely upon the answers given by candidates during
their interviews and paid little heed to how they had performed on the job over a
period of more than twenty years. Actual performance at work entered into the
selection process only via an applicant's response to the six behaviour-based
questions. Interviews in general and behaviour-based questions in particular are
useful tools; but both have their limitations. As Arbitrator Cherniak commented in
Fairview Home, "the ability to conduct oneself during an interview is only one facet
of an employee's abilities." And as noted by Arbitrator Devlin in Greater Niagara
General Hospital, the score awarded for answers to behaviour-based questions
"depends largely on an applicant's ability to recall and recount appropriate
anecdotes." The job performance of candidates should have been considered, along
with their interview scores, because it was relevant to several of the qualifications set
out in the job posting-i.e. positive work record, good organizational and
interpersonal skills, ability to work independently and as a team player, and good
communication skills
The selection panel cannot be faulted for not reviewing performance appraisals
when none could be found. However, in the absence of such appraisals, the members
of the selection panel should have utilized some other indicator of job performance.
Their failure do so was a fundamental flaw in the competition. Accordingly, the
process agreement requires the job competition to be repeated.
At the least, the panel should have taken into account the opinions of the
applicants' current manager and supervisor, Mr. Mancini and Ms. Kirwan
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'r
respectively. Both of them were members of the panel, but the selection process was
designed to preclude consideration of their prior knowledge of a candidate's
performance on the job.
The union contends managers not on the selection panel should have been
asked to provide an evaluation of Ms. Hemmerling's work, because Mr. Mancini and
Ms. Kirwan had a shorter and more distant working relationship with her than with
Ms. Vino. This claim arises from the grievor being employed by Laurentian Hospital
and the incumbent by Sudbury Memorial Hospital before those two institutions
merged with Sudbury General Hospital in 1997 to create Sudbury Regional Hospital.
After the creation of the new regional hospital, the grievor remained at the
Laurentian site and the incumbent at the Sudbury Memorial site. Mr. Mancini and
Ms. Kirwan each worked at Sudbury Memorial Hospital for many years. Mr.
Mancini was Ms. Vino's manager there from 1988 to 1998. He was her supervisor
from 1998 to January of 2002, while she remained at the Sudbury Memorial site and
his office was at the Sudbury General location. He also supervised the grievor from
1998 to January of2002 while the two of them were based at different sites. For
much of the 1990's, Ms. Kirwan and the incumbent were fellow bargaining-unit
members working in hematology at the Sudbury Memorial site. From May of 2000
until the job competition in March of 2002, Ms. Kirwan supervised the incumbent
and they continued to be based at the same site. Ms. Kirwan supervised the grievor
from May of 2000 to March of 2002 while they were based at different sites.
The individuals whom the union suggests should have been consulted about
the grievor's job performance are Jean Jacques Arsenault and Dr. Angelo Mazzuchin.
The only evidence about their work history came from Ms. Kirwan. As
Administrative Director of Clinical Diagnostics, Dr. Mazzuchin was Mr. Mancini's
boss at the time of the job competition. Dr. Mazzuchin was laboratory manager for
the consolidated hospital "for 1998 and 1999" and before the merger he managed the
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laboratory at Laurentian Hospital, where the grievor worked. Mr. Arsensault was
laboratory manager at the regional hospital between the tenure of Dr. Mazzuchin and
that of Mr. Mancini.
Having determined the competition must be run anew, I refrain from deciding
whether Dr. Mazzuchin or Mr. Arsenault should have been consulted during the first
competition or whether either of them need be consulted the next time around.
Whatever means the employer adopts to evaluate the job performance of applicants,
the method used must ensure they are treated in an even-handed fashion, in the sense
that the selection panel has sufficient information to undertake a proper evaluation of
each of them, to the extent this is reasonably possible.
The union made a number of complaints about interview questions. In the
circumstances of this case, I believe the interests of the parties are best served by me
adopting a posture of arbitral restraint and not making any unnecessary rulings. The
employer has heard the union's concerns and may decide to recast some questions.
~
.
Richard M. Brown
Ottawa, Ontario
September 9, 2003
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