Loading...
HomeMy WebLinkAboutSleep 15-05-30IN THE MATTER OF AN ARBITRATION between Ontario Public Service Employees Union and Mohawk College Grievance of Judy-Anne Sleep ( OPSEU File # 2013-0241-0009) ________________________________________________________________________ Before: Louis M Tenace For the Union: Val Patrick, Sr. Grievance Officer (OPSEU) Kathy Maxwell, President Local 241 Judy-Anne Sleep, Grievor For the College: Brenda Bowlby, Counsel, Hicks Morley Tim Fricker, Director Student Success Initiatives Laura D'Allesandro, Human Resources Consultant Linda Grgurich, Director of Human Resources Hearings held in Hamilton, Ontario, January 9, 2015; February 18, 2015; May 14, 15, 19, 2015. 2 The grievor, Judy-Anne Sleep, is grieving that, according to Article 17.1.1 of the Support Staff Collective Agreement, she did not receive proper consideration by the College in a competition for the position of Student Success Advisor at the Stoney Creek Campus (STAART) and also that she was not notified of the successful applicant. As remedial action, the grievor is seeking to be appointed to the position. In his opening remarks, Mr. Patrick stated that the issue in this case is the denial of an appointment to the grievor who was qualified for the position and, indeed, had performed the duties of a Student Success Advisor in a one-year appointment. The College was now making an issue about the educational requirements for the position, arguing that the grievor did not meet the basic educational requirements. The grievor was interviewed, made a presentation and was given a computer test as part of the competition process. The interview was conducted by a panel with a set of questions. According to Mr. Patrick, this process was flawed inasmuch as the questions were "ambiguous and unclear." (Mr. Patrick's words) No consideration was given to the fact that she had successfully done the job for one and a half years. Ms. Bowlby, Counsel for the College, submitted that the grievor did not meet the academic qualifications for the position. Nevertheless, she was invited to an interview during which she demonstrated that she did not "grasp" (Ms. Bowlby's words) the essence of what the job entailed and did not possess the necessary qualifications and experience to fulfill the requirements of the position. Furthermore, she did not get a passing grade on the questions asked by the interview panel. Mr. Patrick requested the exclusion of witnesses which, following a caucus by the College, I granted. He then proceeded to take Ms. Sleep through various exhibits as well as a detailed examination of the revised Position Description Form (PDF) -(Ex-5) to demonstrate that the grievor had actually performed most of the duties of the position. Ms. Sleep was the sole witness on behalf of the Union. She testified that she was first employed by the College as a part-time employee in 1997 and became full-time in 2007 (her seniority was back-dated to 2006). Mr. Patrick then referred her to the position summary as set out on page 3 of the revised PDF(Ex- 5) and asked if she had performed most or many of the duties of the position described therein. She testified that she had performed most of these duties and gave examples of the work she had done in each of the areas. This exercise was quite extensive and I do not believe that it is necessary to repeat her testimony on this. Ms. Sleep then proceeded to provide some examples of some of the work she had done in terms of the various sections of the PDF, particularly with respect to Analysis and Problem-Solving, Planning and Co-ordinating, Guiding/Advising, Independence of Action, Service Delivery and Communication. She did note that she did not do career counselling but that she did set up regular advising sessions for students and organized "Working in Groups" and that she worked closely with the Program Coordinator with respect to 'at risk' students. Mr. Patrick introduced Ms. Sleep's Annual Development and Performance Management Plan covering the period 2012-2013, prepared by Mr. Fricker and signed by him and Ms. Sleep on or about September 13, 2013. It describes her performance as "fully effective". It also shows that 3 she completed some twelve presentations during that period, attended many workshops and continued to take courses to improve her qualifications. Ms. Sleep was invited to an interview through an e-mail (Ex-10) which explained that there would be a one-hour interview by a panel and that she would also have to prepare a ten-minute computer presentation on the topic outlined in the invitation. The names of the panel members were indicated. Ms. Sleep testified that she had done some research and spoken to a number of people before the interview but that she was quite nervous. She said she was told that she could ask questions at the end of the interview. She was not given a hard copy of the questions asked during the interview. She stated that she was not asked to explain any links to the Stoney Creek campus and that she was not asked any follow-up questions. In cross examination, Ms. Sleep stated that she did not have a post-secondary, three-year diploma or a certificate in education or counselling techniques as required by the competition posting. However, she had completed some nine courses of a ten-course programme in counselling and that she was taking the last of these courses (Diversity in the Workplace) at the time of her interview. In fact, she had reviewed material on developmental and life cycle theories before going to her interview. She acknowledged that she had some knowledge of developmental theory but "mostly not" (her words). She did attend, on her own and without being asked to do so, a one-day symposium on the development of retention strategies in May of 2013. She stated further that she had not been asked to do so as part of her job as Student Access Advisor. When asked if she had ever been involved in "intrusive advising", she stated that she had read about it but that she had never undergone any specific training in that regard before she was in the position. Ms. Sleep was asked whether she has had any experience with the Stoney Creek Campus, to which she replied that the job, as it relates to Stoney Creek, is somewhat unique as it focuses on skilled trades and apprenticeship programmes. She acknowledged that she had no experience with academic aspects relating to the apprenticeship programmes at Stoney Creek.. Ms. Bowlby then proceeded to review the actual interview questions and responses given by the grievor. With respect to many of them, the grievor testified that she was uncertain and could not remember exactly what she had said at the time but agreed with the general tenor of what the panel had written as being her replies. In re-examination, the grievor acknowledged that she could not remember precisely what she had said during her interview and that she had been quite nervous at the time. Concerning the development of retention strategies, the grievor stated that she did not understand that she was to do such development in this role. Mr. Tim Fricker is the Director, Student Success Initiatives, and has been in this position since July of 2012. He has an Honours B.A.(Geography) from the University of Windsor and a M.Ed.(Post Secondary Studies, 2011) from Memorial University. Briefly, his major functions involve the College-wide facilitation of student success and retention initiatives. He is also the Director of Academic Advising Programmes, the Manager of Learning Support Centre 4 Programmes and Supervisor of the ministry-funded First Generation Project. He was the sole witness for the College. Mr. Fricker testified that, shortly after assuming the position of Director, he began to revise the then-existing PDF for Student Success Advisor (Ex-19), taking some eight months to do so. The resulting PDF(Ex-5) was significantly altered from its predecessor. It was now more comprehensive; the focus was on student development, retention and best practices. His objective was to introduce "Student Development Theory" as the foundation for the Student Success Advisor's role, with the emphasis being on "how students learn and grow throughout their college and university years" and "how to encourage them to find answers on their own and to be responsible for their own success." This approach included "developmental advising" and "intrusive and lifecycle advising" which were explained in greater detail in Ex-20. One of the areas in the revised PDF (Ex-5) changed the educational requirements for Student Access Advisor so that it now required a three-year diploma/degree plus professional certification or equivalent. The previous PDF (Ex-19) required only a three-year diploma/degree or equivalent. Mr. Fricker testified that Ms. Sleep had been in a temporary assignment position which had been extended in April of 2013. On August 30, 2013, he sent Ms. Sleep a memorandum (Ex-7) outlining a change in her duties regarding the type of "advising" she would henceforth be doing, the student clientele with whom she would be dealing as well as a change in her office location. Her existing PDF was not altered. He testified further that Ms. Sleep did not have the qualifications set out in the revised PDF(Ex-5) and that she was not covering the full scope of the Student Success Advisor's role. Her role was mainly of an informational and explanatory nature. Because she did not have the formal qualifications, he had no expectation of her being able to perform the revised duties. Apart from not meeting the educational requirements for the position, it was his view that she did not understand what the revised job consisted of and that her knowledge of what it entailed was quite superficial. Notwithstanding these shortcomings, she had worked with his team and he decided to give her the opportunity to compete for the position at Stoney Creek. As best he could recall, only one of the candidates met the educational requirements for this job posting. Concerning the actual competition, he noted that none of the four candidates was successful. He had developed the competition format, questions, suggested answers and marking scheme together with Laura D'Allesandro, the Human Resources Consultant. They also developed together the criteria for the Computer Presentation to be made by each candidate. Its' purpose was to have each candidate give recent examples of their use of "developmental, intrusive and lifestyle approaches" to support student success. Candidates were also asked to provide an example of an initiative they could implement at the Stoney Creek campus to support student success. With respect to Ms. Sleep's performance in the competition, Mr. Fricker testified that she did well in terms of the technical form of her presentation; she provided three situations as she was instructed to do but she made no references to "developmental, intrusive and lifestyle approaches" with respect to Stoney Creek, something that this part of the competition 5 specifically required her to do. Moreover, the content of her presentation was weak and did not demonstrate that she would be able to fulfill the duties of the position. Concerning the actual interview questions asked of each candidate, Mr. Fricker testified that they were designed to permit the candidates to demonstrate an application of their knowledge and experience. No prompts or follow-up questions were made or asked of any candidate. It was the view of the interviewing team that this might be unfair to the candidates, depending upon what responses they had initially given. Mr. Fricker acknowledged that he played a major role in the interview. It was determined that 70% would be the minimum acceptable score. He stated that Ms. Sleep's responses to the questions were weak, superficial and did not demonstrate any real knowledge of what the job entailed and she did not achieve a passing grade from any member of the panel. The final scoring was an average of the scores of the interviewers (T.Fricker, L.D'Allesandro, D.Daniels). The questions (Ex-12A)were scored as follows: Unacceptable (less than 39% of preferred response) - 0 Points Not acceptable (40-49% of preferred response) - 1 Point Marginally acceptable (50-59% of preferred response) - 2 Points Acceptable (60-69% of preferred response) - 3 Points Comprehensive (70-89% of preferred response) - 4 Points Superior (90% or greater of preferred response) - 5 Points Counsel then proceeded to review Mr. Fricker's score sheet as it pertained to Ms. Sleep's responses to the questions. Suffice it to say that the grievor was not given a passing mark by any of the three panel members. It is interesting to note that Mr, Fricker's total mark was the highest of the three on both the interview questions and the presentation. In cross examination Mr. Fricker testified that, in his opinion, none of the individuals in his group were knowledgeable about student development theories when he assumed his functions. They were not expected to be psychologists. He began to revise the PDF and started making changes after he assumed the role of Director in 2012. He began to hold a number of formal training sessions in May of 2013; it was discussed at staff meetings and he encouraged people to undertake training but no person was ever required to go to university for an additional degree. Mr. Fricker testified that he knew formal training, i.e., education and experience were both required to perform the job well and that is why he built these factors into the PDF. Ms. Sleep was at these staff meetings and she got the same information and training as everyone else while remaining in her existing position. From his perspective, she was not performing the full duties as reflected in the new PDF. When he gave her the temporary assignment, she understood fully that she was not performing the full range of duties. Mr. Patrick argued that the issue to be resolved was whether Ms. Sleep had sufficient qualifications to do the job successfully. Although she was doing the job, albeit on a temporary basis, she was the incumbent and should have been appointed to the position. He submitted that the questions asked by the interviewing panel were "flawed, loaded, ambiguous and unclear." There were no probing or follow-up questions, notwithstanding the fact 6 that the panel members were given scoring sheets which allowed for the possibility of asking such questions. Furthermore, there was no proper assessment of how she had been performing the job on a temporary basis and the assessment of her responses to the interview questions were subjective. The Union was not challenging the new requirements of the position as posted for this competition (Ex-5); however, the panel should have looked at Ms. Sleep's equivalent qualifications. The questions themselves were so flawed that the process should be rejected as an improper use of management rights. Ms. Sleep should have been appointed to the position. As a minimum, he submitted that the matter should be referred to another panel "for proper assessment." Mr. Patrick submitted that there is no mention in the position summary at the beginning of the PDF (Ex-5) that one had to be a specialist in "developmental theory" He acknowledged that the cross-examination of Ms. Sleep confirmed that she did not have all the qualifications required for the position but that she had been doing the job on a temporary basis. In his opinion, the new PDF was merely a "shift in the type of advising being provided." The College's position was quite arbitrary. In his opinion, Mr. Fricker's mind was made up before the competition. He believed that the candidates with the proper qualifications should know exactly what to do. Mr. Fricker heard only what he wanted to hear. Although Mr. Fricker had testified that the candidates were expected to provide examples related to the Stoney Creek Campus in their "Presentation", this was not specifically asked of Ms. Sleep. There were no "probing" or "follow-up" questions. In fact, he acknowledged that there were no probing or follow-up questions asked of any of the candidates. Mr. Patrick then proceeded to review the scoring sheets (Ex- 12 A,B,C) of the panel members and the notations made thereon by each. He reviewed each of the questions on the scoring sheets as well as the marks accorded by the panel member for the grievor, while, at the same time, indicating what he thought the proper marks should be. (I shall return to this later in the decision). He submitted further that one was hard pressed to determine where the marks came from. He asked that I should do my own scoring of the questions and responses. Further, he argued that the grievor should have been given points for her seniority. He requested that I should place the grievor into the position and make her whole. Mr.Patrick referred me to the following cases in support of his submission: Ontario Public Service Employees Union, Local 563 and Seneca College, September 5, 2014 (Keller); Ontario Public Service Employees Union, Local 421, October 16, 2011 (Saltman, Chair); Canadian Union of Public Employees, Local 5167 and the City of Hamilton, March 27, 2009 (Surdykowski). Counsel for the College submitted that the onus in this case was upon the Union to show that the grievor not only met the qualifications for the position, but that she was qualified to do the job and that the process was flawed. In her opinion, the Union has failed to do so on all fronts. She submitted that not only did the College have the right to change the duties and set new qualifications for the position advertised but it also had the right to implement the changes "prospectively",i.e. to make them a requirement for any employee hired into the position. She submitted further that the competition was not flawed as a consequence of the questions being possibly flawed or that there was a lack of follow-up questions asked by the panel. She also submitted that the question of seniority did not come into play in this competition as there was no successful candidate. The position in question is one of the highest paid in the support 7 services group and the requirements and qualifications are necessarily at a high level. Counsel noted that the grievor was in a temporary position, not in an incumbent position . Mr, Fricker had asked her in August of 2013 to perform some of the duties of the newly-described PDF (Ex- 7) but these duties were of an informational and explanatory nature; the y did not involve the general thrust of the new PDF in terms of doing the developmental and advising functions as set out therein. Counsel noted further that in her "presentation" which was part of the competition, the grievor mentioned nothing about how developmental theory is implemented, which she should have done as this is what the job was all about. The job location was at the Stoney Creek Campus but the grievor made no mention of Stoney Creek. One would normally expect a candidate to provide responses in relation to the job being filled. Counsel submitted that the grievor did not meet the minimum qualifications for the position but that Mr. Fricker decided to give her an opportunity to compete because she was a good employee with long service. Concerning the questions posed to the candidates, Counsel submitted that the process involved more than simply collecting information. The position in question had a significant, abstract component which required the panel to ask subjective questions. Each panel member gave marks for the answers. It is not enough to simply suggest that the process was unfair; the Union would have to show that the grievor was not given the opportunity to respond fully. Such was not the case. There was also no evidence to show that probing or follow-up questions would have provided more information to the panel. Counsel then proceeded to review the questions and the grievor's responses. In doing so, she attempted to show that the questions were not only appropriate but also that the grievor did not really deal with the essence of the questions or that she simply showed no grasp of developmental theory. Finally, Counsel submitted that the Union has failed to show that the process was unreasonable, arbitrary or discriminatory or that the grievor was prevented from demonstrating her capability to do the job. If the panel did not ask probing or follow-up questions, it was still the grievor's responsibility to show that she understood the job and would be able to do it properly. In support of her submission, Counsel referred me to the following cases: Re Seneca College of Applied Arts and Technology v. Ontario Public Service Employees Union. 1996, 52 L.A.C. (4th)129, Schiff (Chair); Ontario Public Service Employees Union OPSEU and Loyalist College, October 16, 2001 (Saltman, Chair); Le SEFPO et le Collège Boréal, le 29 octobre, 2007 (Tenace, Président); Niagara College of Applied Arts and Technology and Ontario Public Service Employees Union, October 15, 2004 (Starkman, Chair); Re Winkel's Your Independent Grocer and RWDSU (McVey), 2007 CarswellOnt 10908, 91 C.L.A.S. 176; Algonquin College and Ontario Public Service Employees Union, February 4, 2010(Devlin); Le SEFPO et le Collège Borèal, le 14 mai 2012 (O'Neill, Présidente); George Brown College and Ontario Public Service Employees Union, May 24, 1994 (Bendel, Chair). In reply, Mr. Patrick submitted that the grievor had done the job for several months. He agreed that the test here was one of reasonableness. Also, he was not suggesting that the College did not have the right to change or upgrade the qualifications. Rather, he argued mainly that the process was flawed. If the College was seeking more comprehensive answers, then the panel should have asked their questions accordingly. She answered what she was asked. Finally, Mr. Patrick requested that I should find in favour of the grievor and that she should either be given the job or 8 that there should be a re-assessment of her qualifications and test scores and that she should be placed into the position. He was not suggesting that the entire competition be done over. The issue in this case is whether the grievor was improperly denied the appointment to the position of Student Success Advisor as set out in the job posting dated November 20, 2013 (Ex- 14). The applicable article of the collective agreement is Article 17.1.1 Consideration-Bargaining Unit Employees, which states as follows: 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 fulfill the requirements of the position. What Article 17.1.1 provides for is that when the College posts a position for which members of the bargaining unit may apply, the successful candidate will be selected on the basis of qualifications, experience and seniority in relation to the requirements of the vacant position (emphasis added); however, where qualifications and experience are determined to be relatively equal, seniority will be the determining factor if the candidate with the most seniority has the necessary qualifications and experience to fulfill the requirements of the position (emphasis added) . For seniority to be the governing factor, not only must the qualifications and experience of the candidates be relatively equal but the candidate selected on the basis of seniority must have qualifications and experience "in relation to the requirements of the vacant position" as well as the qualifications and experience "to fulfill the requirements of the position". The grievor did not meet the educational requirements for the position as posted on the competition poster (Ex- 14). This was never in dispute. Mr. Fricker testified that she was permitted to be a candidate because she was a good employee with long service and related experience. The College might have chosen to eliminate her from the competition but was probably wise not to do so without giving fair and reasonable weight to any equivalent qualifications she possessed. In any event, she was permitted to compete and the College was obliged to treat her fairly and on the same basis as the other candidates. It is significant that none of the candidates qualified and this was not an issue. The format for the competition, both the presentation and the interview questions and suggested responses, were prepared by Mr. Fricker and Laura D'Allesandro, the Human Resources Consultant. There was no suggestion that the process was "rigged". While Mr. Patrick reviewed the questions at great length and attempted to demonstrate that they were not "good" questions, I am unable to come to that conclusion. It is common practice to accord deference to interviewing panels, assuming, of course, that they have not been unreasonable, arbitrary or unfair in their treatment of the candidates. Based on the testimony of Mr. Fricker and Ms. Sleep, I am satisfied that such was 9 not the case. I note here that Ms. Sleep's testimony was that she could not remember too much of her responses to the questions posed by the interviewing panel but that she agreed, generally, with what they had indicated as being her responses (Ex- 12A,B,C). I am unable to conclude that the questions were flawed. Mr. Patrick argued that she should have been given higher marks for her responses to some of the questions. I am not in a position to do such an evaluation as it would entail my having virtually a verbatim account of the entire question and answer process, which I do not have; and it would also would mean substituting my conclusions for those of the interviewing panel. The panel members made only brief notations on their scoring sheets to guide them in compiling their marks. This does not constitute a flaw in the process. They were not "true" or "false" questions; rather, they were questions requiring some thought before answering. The scoring sheets did list areas which the candidates were expected to deal with in their replies and they were scored based on the replies given. The Union argued that the interview process was flawed because the panel did not ask any probing or follow-up questions. While I am sympathetic to the position taken that such questions are a normal part of an interview process, the fact that the grievor was not treated differently or uniquely in this regard does not make the process unfair or unreasonable. It was Mr. Fricker's evidence that the panel had decided that no follow-up questions would be asked of the candidates because "It was the view of the interviewing team that this might be unfair to the candidates." Frankly, I am at a total loss to understand this reasoning. Nevertheless, I do not consider this a fatal flaw to how the interview was conducted. It was applied to the candidates equally, including the grievor. I would only express the hope that this is not a "norm" to be followed by the College. It seems to me that probing and follow-up questions are an inherent part of any interview process. Mr. Fricker was hired by the College to take it in a new direction involving Student Development Theory which emphasized student learning and development practices which went beyond the standard transactional question-answering and problem-solving modes and with a different goal of helping students solve problems for themselves (Ex- 20). Such theory attempts to describe how students learn and grow throughout their college and university years. To this end, he spent some eight months developing a new PDF which was to form the basis of hiring staff to fulfill this goal. If this was the reason for hiring Mr. Fricker, it is not surprising that he would seek out individuals with this training and the appropriate qualifications to do the job. The educational requirements for the position were upgraded and some training was provided to existing staff, including the grievor. It should have been no surprise to anyone that a competition for such a position would seek individuals with the desired qualifications. Mr. Patrick suggested that the panel did not ask questions specific to the Stoney Creek Campus. Counsel for the College replied that the job posting specified that the position was in respect of Stoney Creek and, moreover, the presentation topic for each of the candidates specifically asked each to "provide an example of an initiative you could implement at the Stoney Creek campus to support student success" (Ex- 14). It seems sensible that if a specific job is advertised for a specific location that it would behoove candidates to tailor their responses in relation to that. Mr. Patrick stated that the grievor had, in fact, being doing the job. It is clear, however, from Mr. Fricker's testimony that she had been only performing a part of the job as a temporary 10 assignment and that this was documented in his memorandum to her dated August 30, 2013 (Ex- 7) as shown, in part, below: August 30, 2013 Dear Judy-Anne: This letter is a follow-up to your temporary assignment extension provided in April of this year, and the conversations we had at that time about adjusting your portfolio to include some more traditional advising duties outside of the Access Project. All changes are still consistent with your current PDF and simply constitute a new office location, new student clientele, and slight shift in the type of advising provided. This summer you also participated in some general orientation and training provided by your peers on the Student Success Advising Team. This letter confirms the following changes, which are effective immediately: Tuesday's and Thursday's (sic): You will remain in your current office location (J105). Your primary focus will be to continue to provide transitional advising and support to students with the Access Project portfolio. Monday's, Wednesdays, and Fridays: You will work out of the workstation provided in F175. Your primary focus will be to provide traditional student success advising to the students within schools and programs of Interdisciplinary Studies (Humanities, Social Sciences, and General Arts and Sciences). The following details about your temporary assignment as a Student Success Advisor - Access, have not changed; ..........your current rate is below. I sincerely hope that you will continue to find your temporary assignment to be both challenging and rewarding. Tim Fricker Director, Student Success Initiatives As far as the allegation that Ms. Sleep was not notified of the successful candidate, it was noted above that there was no successful candidate. In any event, this allegation was not addressed further during the course of the hearing. Both Mr. Patrick and Ms. Bowlby presented a number of cases in support of their submission. I have reviewed each of these carefully and have little quarrel with them and, indeed, found some areas where they have proven helpful, such as the need to consider equivalent qualifications as well as the practice of showing deference to interviewing panels; however, none of the cases submitted was on all fours with the instant case. Several were concerned with the issue of a candidate not being interviewed, some with the issue of seniority not being properly considered, another involving a motion for non-suit. In the instant case, the grievor was permitted to compete, notwithstanding the fact that she did not meet the educational requirements of the position. 11 Having due regard to all the evidence before me, I am satisfied that the competition was conducted fairly and that the panel did not act in an unreasonable, arbitrary or discriminatory manner. While the College acknowledged that the grievor had performed some of the duties of the job in question, the evidence showed that she had not performed the most significant portion of those duties which required the application of theories of developmental, intrusive and lifestyle approaches in advising students. Mr. Patrick did not dispute the nature of the questions asked. His preoccupation was with the marking of the job competition. However, as explained above, deference should be accorded an interview panel except where a process is so obviously tainted, that it demands a remedy. I did not find that the process was tainted. The panel had prepared questions and possible answers together with a marking scheme which were put to each candidate. The final mark for each candidate was determined by averaging the marks of each of the panel members. No issue was taken with the College's upgrading of the educational qualifications for the position. It was their right to do so. It was obvious throughout the hearing that the grievor is a valued employee whose past work was shown to be an asset to the College. In her testimony, she struck me as being both forthright, honest and a dedicated employee. She has been upgrading her qualifications and I have no doubt that she will continue to give excellent service to the College. For all the reasons outlined above, the grievance is denied. Signed in Ottawa this 30th day of May, 2015 Louis M Tenace (arbitrator)