HomeMy WebLinkAboutPaquette 02-01-31
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IN THE MATTER OF AN ARBITRATION
BETWEEN:
SUDBURY REGIONAL HOSPITAL
(the "Employer")
AND:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 659
(the "Union")
IN THE MATTER OF:
SYLVIE PAQUETTE GRIEVANCE
OPSEU FILE NO. 00-659-109
SOLE ARBITRATOR:
Kevin M. Burkett
APPEARING FOR THE EMPLOYER:
Geoff Jeffery - Counsel
Wayne Auchinleck - Human Resources Consultant
Maureen McClelland - (formerly) Clinical Manager
Tony Cunningham - Coordinator Respiratory Therapy
APPEARING FOR THE UNION:
Jim Gilbert - Grievance Officer
Yves Shank - OPSEU Local 659 President
Sylvie Paquette - Grievor
Hearing in this matter was held in Sudbury, Ontario on January 10, 2002
AWARD
The union grieves in this matter that Ms. Sylvie Paquette was denied
selection to a job vacancy in contravention of article 13.06 of the collective agreement.
Ms. Paquette applied for the job of Senior Therapist-Pulmonary Function Lab that was
posted August 25, 2000. She was interviewed along with three other candidates. The
successful applicant, Ms. Chantel Desjardins, is junior to the grievor. There is no dispute
as to my jurisdiction to hear and determine this matter. The successful applicant was
served with notice of these proceedings and advised of her right to participate.
Article 13.06, stipulates as follows:
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.
This is a classic competition clause under which the most qualified applicant
is entitled to the position with Seniority used as a tie-breaker should the qualification of
two or more candidates be "relatively equal".
The job posting reads as follows:
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Posting #: 00-444
Position: SENIOR THERAPIST-PULMONARY FUNCTION LAB
Status: FULL-TIME
Department/Services: RESPIRATORY THERAPY
Site: AS ASSIGNED
Under the supervision of the Clinical Manager, Medical Outpatient Services, the Senior Therapist
will act as role model for all staff working in Sleep Disorders Core Groups. The Senior Therapist
will be responsible for the daily workload of othèrs and provide technical guidance to assigned
staff. He/she shall be certain that proper techniques are utilized to ensure that work output meets
established standards. He/she will assist with the clinical guidance and development of assigned
staff. In so doing, will demonstrate proficiency and leadership in the assigned area. A position
description is available from Human Resources.
Qualifications:
Working conditions: 7.5 hour shifts, Monday to Friday, 7.5 hour per week will be dedicated to
core group leadership, without an assignment. The remainder of the week shall be spent
performing the regular duties required in the pulmonary Function Lab*
** subject to change based on requirements of the service
Position requirements:
- current certificate of registration with the College of Respiratory Therapists of Ontario
- demonstrated clinical and technical competence in the assigned Core Group
- registered Polysomnographer designation for the Sleep Disorders position
- excellent communication and problem-solving skills
- recent experience and demonstrated ability in a leadership position
- adult teaching experience
- successful completion of courses, certifications in the assigned area
- proof of ongoing commitment to self-development
- team-building capacity
- excellent work attendance
Salary: $22.22. ............ .......... .... .... ............... ......... ........$28.57/hour
Interested candidates MUST attach a full resume/summary, detailing their skill, ability, experience
and qualifications to the standard HRSRH application form. Candidates will be short-listed for
interviews based on the details provided with their application.
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I heard extensive opening statements from counsel during which the relevant
documentation was fùed, subject to proof. After the completion of opening statements and
a review of the documentation I advised counsel that on the face and without prejudice to
a full hearing on the merits, there appeared to be a defect in the selection process.
There is no dispute as to the following facts:
. The employer constituted a selection committee comprised of those, in its view,
best situated to make the selection.
. The interview format was adopted and modified from an earlier group leader
competition.
. The successful applicant had applied for the earlier group leader competition and,
therefore, was familiar with the questions. The grievor had not applied for the
earlier group leader position.
. A uniform grading system was applied to each candidate under which the successful
applicant scored 145.5 points and the grievor scored 144.5 points. A third
candidate, who was also senior to the successful candidate but junior to the grievor
scored 155.7 points. She chose not to grieve. A fourth candidate scored 115.5
points.
. The annual performance appraisals of the candidates were not considered. The
grievor's August 2, 2000 performance appraisal, by her manager, Maureen
McClelland, who also served on the selectÏon commÏttee, rated the grÏevor as
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between a 4 (superior) and a 5 (exceptional) (the highest rating). In order to obtain
an exceptional ranking an employee must "exceed all objectives and standards of
performance, demonstrate exemplary leadership skills, excel in achieving
administrative priorities... (and be) a role model...". The manager's written
comments conflTill that the grievor had taken on "an informal leadership role in the
area of asthma education and pulmonary testing and is "extremely knowledgeable
in the area of PFT's and contributes positively to the smooth function of the PFT
area"
. after each of the candidates had been graded by the selection committee with the
successful applicant and the incumbent in a virtual dead-heat, the employer sought
to make the determination on the basis of the opinions given by two internal
references. In this regard Gerry Grimand and Dr. Cameron (the director of
medicine) were asked to comment on the relative strengths of each candidate under
eight headings. Two points were then given to the candidate judged most suitable
under each heading. As a result the succe~sful applicant was given an additional 16
points thereby, in the mind of the employer, breaking the tie with the grievor, who
was initially given zero additional points; later amended to 5 additional points. If
the candidates had not been relatively equal in qualification as assessed by the
selection committee the internal references would not have been used.
. Dr. Cooper had earlier (1994) written a reference letter on behalf of the successful
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candidate in respect of her application for an outside job. Dr. Cameron's reference
letter formed part of Ms. Desjardin's resume as put before the selection committee.
. Chantal Desjardins, with a seniority date of December 9, 1995, was declared the
successful candidate based on her total score, including the 16 points awarded on
the basis of the internal references. Sylvie Paquette, with a seniority date of
January 11, 1988, was declared an unsuccessful candidate.
This collective agreement contemplates that the employer shall determine if
a vacancy exits, shall specify the relevant standards and qualifications for a vacant job;
shall strike a selection committee as it did here; shall determine the best method of
assessing the various candidates; shall interview, test and otherwise assess the various
candidates against the relevant qualifications required for the job; and shall make a
selection based on who is the best qualified candidate. Under this collective agreement
seniority is to be used as a tie-breaker should two or more candidates be "relatively equal"
in qualification.
While I am prepared at this juncture to assume without fIDding that the
qualifications identified as relevant were in fact relevant and while I am prepared at this
juncture to assume without fIDding that the selection committee engaged in a proper
assessment of the candidates (although I have some concern with respect to the prior
exposure of the successful candidate to the interview questions and in addition, with
respect to the committees' failure to consider the performance appraisals of the various
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candidates), 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.
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 fIDd
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. Indeed, in this case Dr. Cameron, the medical
director, was already on record as considering Ms. Desjardins an "excellent and reliable
employee". Ms. Desjardins considered this endorsement important enough to include in
her resume submitted to the selection committee. While consideration should be given to
each candidate's work history, an employee's work history is to be found in hislher annual
.
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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 dilly constituted selection committee that is privy to all relevant
information.
Even if I was to have heard all of the evidence in this matter going to the
qualification of the grievor relative to that of the successful candidate I would nevertheless
be forced back to what I consider to be a fatal defect in the process; that is the use of
internal references to break a tie in qualification as determined by the selection committee.
Once the selection committee, using all of the information at its disposal, including test
and/or interview results, determines that two candidates are relatively equal in qualification
the collective agreement requires that the senior candidate be awarded the position. It
should also be noted that even if the subsequent use of internal references to break a tie as
between relatively equal candidates was not a clear violation of the collective agreement,
which it is, it woilld nevertheless constitute a subversion of the selection committee process
upon which the employer relies in support of the bone-fides of its ultimate decision.
Having regard to the foregoing I hereby fIDd that the selection process was
flawed. Accordingly, the issue that remains is one of remedy. The parties have agreed
that in the event of such a fIDding they be given the opportunity to make written
submissions with respect to remedy. In this regard it has been further agreed that the facts
set-out herein and the exhibits that have been filed may be relied upon. More specificaUy,
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it is agreed that Karen Shute, the unsuccessful candidate who was ranked highest by. the
selection committee but did not grieve, scored 155.7 on the interview and had greater
seniority than the successful candidate. For the purposes of remedy the union does not
challenge the scoring of Ms. Shute's qualification by the selection committee.
I remain seized to accept the written submissions of the parties with respect
to remedy and to determine that issue.
DATED in Toronto, Ontario on this 3pt day of January, 2002
Kevin M. Burkett