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HomeMy WebLinkAboutHundevad 03-05-26 1/03 THU 12:56 FAX 6135487624 ELIOT, SMITH IàJ 002 -- , IN THE MATTER OF AN ARBITRATION BETWEEN: Religious Hospitallers of Saint Joseph of the Hotel Dleu of Kingston, Employer, - and. Ontario Public Service Employees Union, Local 442, Union BEFORE: Michael Bendel, Arbitrator APPEARANCES: For the Union: Peggy E. Smith, Counsel Mary Lou McCartney, President Elizabeth Hundevad, grievor For the Employer: Les Foreman, labour Relations Consultant Robin Jones, Director, Child Development Centre Scott Mcinnes, Director of Human Resources Intervenor: Carol J. Rogers Heard in Kingston, Ontario, on February 20, March 3 and May 13, 2003. OS/29/03 THU 12:56 FAX 6135487624 ELIOT, SMITH IàJ 003 ~ ; -2- ARBITRAL AWARD I In her grievance, Ms. Elizabeth Hundevad, a Social Worker, challenges the employer's decision to deny her a promotion to the position of Senior Social Worker in the Child Development Centre. The vacancy in the position of Senior Social Worker was advertised internally and exter~ nally at the same time. The grievor was the only internal candidate. Five extemal applications were received. Only the griever and one external candidate, Ms. Carol Rogers, were interviewed. The employer decided to appoint Ms. Rogers to the job. The grievor had held the position of Social Worker since 1994. The only full-time Social Worker positions at the Child Development Centre were the grievor's and the Senior Social Worker position. The grievor challenges the employer's decision on several grounds. She claims that the employer decided that she would not get the job before the process had even begun; that the employer sought experience that was well beyond the true requirements of the job; that the interview and selection process were seriously flawed; and that Ms. Rogers did not meet the minimum requirements of the job. The employer defends its decision. It denies that the process was in any way defective. It asserts that the grievor did not meet the minimum requirements of the job, and that she was granted an interview only as a courtesy, or in the interests of good labour relations. It also alleges that, in any event, the OS/29/03 THU 12:57 FAX 6135487624 ELIOT. SMITH 1àJ004 .. ; -3- grievance was not presented within the time stipulated in the collective agreement, with the result that the arbitrator is without jurisdiction. II The first matter to be considered is the timeliness of the grievance. The interviews were held on June 4, 2002. On June 13, Ms. Robin Jones, the Director of the Child Development Centre and the chair of the selection committee, spoke to Ms. Rogers and told her she was being offered the job. They agreed on an August 19 starting date. Ms. Rogers was not alerted to the possibility that a grievance might be launched by the griever. Later on June 13, Ms. Jones met the grievor and told her she was not successful in the competition, adding that her clinical skills were excellent but that she lacked administrative and leadership experience. The griever was upset at learning that she would not get the job. According to Ms. Jones' testi- mony, the grievor told her that she knew who the other candidate was, and she doubted the other candidate had the right background for the job. According to the grievor's testimony, however, there was no mention at their meeting of the name or background of the successful candidate. The next day (June 14), the griever called in sick. Later that day, Ms. Jones went on vaca. lion. 05/~9/03 THU 12:57 FAX 6135487624 ELIOT, SMITH I4J 005 ~ ~ -4- Ms. Jones returned from vacation on June 24. She spoke with the grievor, and it was agreed that they would meet to review the competition. The grievor suggested they meet on June 27. but Ms. Jones was not available that day. They agreed to meet on July 2, the first date that was convenient to the two of them. At their meeting on July 2, they discussed why the employer felt the grievor was not quali- fied for the job, but no men bon was made of the name of the successful candidate. On July 2, Ms. Jones also issued a memorandum to staff, informing them 6f Ms. Rogers' appointment and of her background. The grievor testified that this memorandum first came to her attention on July 3, bye-mail. On July 5, the grievor presented her grievance. In replying to the grievance at the first and second steps, and also at the arbitration, the employer objected to its timeliness. The provisions of the collective agreement dealing with the bmeliness of grievances are these: ARTICLE 10: GRIEVANCE AND ARBITRATION PROCEDURE ... 10.03 It Is the mutual desire of the parties hereto that complaints shall be adjusted as quickly as possible, and it is understood that an employee has no grievance until she has first given her immediate manager the opportunity of adjusting her complaint. Such complaint shall be discussed with her immediate manager within seven {7} continuous days from the event giving rise to the grievance, or from when the employee ought reasonably to have become aware of the event giving rise to the grievance and failing settlement within seven continuous days it shall OS/2g/03 THU 12:57 FAX 6135487624 ELIOT. SMITH 141006 . , -5- then be taken up as a grievance within seven (7) continuous days following advice of her immediate manager's decision in the following manner and sequence: SteD No.1 The employee must submit the grievance in writing signed by her to her immediate manager... .,. 10.11 No matter may be submitted to Arbitration which has not been carried through the steps required under the Grievance Procedure. '" 10.15 The time limits set out in the Grievance and Arbitration Procedures herein are mandatory and failure to comply strictly with such time limits except by the written agreement of the parties, shall result in the grievance being deemed to have been abandoned. Agreement to waive such time limits shall not be unreasonably denied. If the respondent does not reply within the time limits, the grievor may proceed to the next step. Also of possible relevance to the question of timeliness is Article 13.02: 13.02 Where an employee has applied through the job posting procedure for a promotion or transfer and has been unsuccessful, the employee upon inquiry shall be advised of the reasons by the Human Resources Department or her Department Head. The employer says that, in the calculation of the time available for the grievor to present her grievance, time started to run on June 13. when the gnevor was advised that she was not the successful candidate. Under Article 10.03, she therefore had until June 20 to discuss the matter with her immediate manager. Following receipt of her manager's decision, she had a further seven days to submit her griev. ance. The employer points out that the time limits are mandatory (Article 10.15). July 5 was, on any analy- sis, too late for the grievor. OS/29/03 THU 12:58 FAX 6135487624 ELIOT, SMITH 1àJ007 ¡ .. -6- The union maintains that Article 10.03 must be read as incorporating a subjective element, with the result that time did not start to run until the grievor was aware of the identity and the background of the successful candidate. Until the grievor was in possession of that information, she could not come to an informed decision as to whether to initiate a grievance. The griever acted diligently. Most of the delay between June 13 (when the grievor was informed she was not successful) and July 5 (when she presented the grievance) is accounted for by Ms. Jones' absence on vacation and by the delay, upon her return, in finding a meeting date suitable for the two of them. Ms. Jones' willingness to meet with the grievor and discuss the competition with her on July 2 could be interpreted as a waiver of the time limits in the agree- ment. In the alternative, the arbitrator should exercise his statutory authority to extend the time for the pres- entation of the grievance. III - When Ms. Jones met with the grievor on June 13, it was for the purpose of informing her that she had not been successful in the competition. Although the grievor was upset at the news and ' (according to Ms. Jones' testimony) expressed doubt as to the suitability of the successful candidate for the job, I cannot regard that meeting as being the discussion of a ~complaint. by the grievor, for the purposes of Article 10.03. The grievor only heard the news at that meeting and I am not satisfied that she had time to digest it and decide how to react to it before the meeting was over, Article 10.03, in my view, envisages a situation where an employee, having learned of an event or decision and having decided to challenge it, seeks out her manager to express her displeasure and to give the manager an opportunity to adjust the complaint. Accordingly, while I am prepared to accept that time started to run on June 13, with the griever learning she was not successful, the meeting that day was not the discussion of a complaint, within the meaning of ArtIcle 10.03. It is also worth noting that Ms. Jones does not seem to have felt that any decision . OS/20/03 THU 12:58 FAX 6135487624 ELIOT. SMITH IàJOO8 , ; .7- by her was called for following the June 13 meeting, although a decision would have been required, pursu- ant to Article 10.03, if that meeting had been for the purpose of discussing a complaint. Upon Ms. Jones' return from vacation on June 24, they agreed to meet and discuss the competifion on July 2. Although I do not know exactly what the grievor and Ms. Jones expected to do at their meeting, it seems to me that this is the meeting that is envisaged by Article 13.02. However, I am inclined to view the discussion on July 2 as being not just the meetlng called for by Article 13.02, but also a discussion of the grievor's complaint. There was no indication whether the grievor actually asked Ms. Jones to change her decision (which is what Article 10.03 seems to envisage), although it must have been obvious to the grievor that Ms. Jones was not prepared to do any such thing. If time started to run on June 13, the meeting on July 2 was beyond the time stipulated by the agreement for the initiation of a complaint. However, since, in meeting with the grievor on July 2 to discuss her complaint, the employer did not give any indication that it regarded the complaint as being out of time, it seems reasonable to conclude that the employer waived the failure to comply wíth the time limits. As a result, the grievance is properly before me. If I am wrong in the above analysis, I would have no hesitation in exercising my power under section 48 (16) of the Labour Relations Act. 1995, S.D. 1995, c. 1, Sch. A, to extend the time for the presentation of this grievance. In this regard, I rely on the following: . The delay was only a few days; OS/2Ð/03 THU 12:58 FAX 6135487624 ELIOT, SMITH IàJ 009 . : - 8 - . The delay was largely attributable to Ms. Jones' absence on vacation and to the difficulty, upon her return, in finding a date convenient to the two of them; . There might well have been uncertainty about how a complaint is to be presented if the immediate manager is absent during the seven days after a grievor learns of the event giving rise to the grievance; . There might well have been confusion on the relationship between the discussion of the complaint (Arti- cle 10.03) and the discussion of the reasons for the grievor's lack of success in the competition (Article 13.02); . The grievance related to a matter of considerable Importance to the grievor, since this was the only position at the Child Development Centre to which she had any expectation of promotion; . The employer was given no reason to believe that the grievor was reconciled with its decision or had abandoned her right to present a grievance; and . The employer unconditionally offered the job to Ms. Rogers before the grievor was even informed of the outcome of the competition (and therefore before the expiry of the time for the grievor 10 present a grievance) with the result that there will be no prejudice to the employer in extending the time for the presentation of the grievance. IV Article 13.03 of the collective agreement establishes the criteria for promotions and trans- ters: Promotions and transfers to new or vacant positions within the bargaining unit will be based primarily on the judgement of the Employer as to skill, ability, experience and academic qualifications of the employee concerned, but as between two (2) persons of equal standing based upon the above factors, seniority will govern. I OS/2-9/03 THU 12:59 FAX 6135487624 ELIOT,SMITH IàJO10 , : -9- The posting read, in part, as follows: SUMMARY OF DUTIES As the Senior Social Worker in CDC and consistent with the overall mission and ooals of the CDC: + Provide initiative and leadership to CDC Social Workers in clinical programs and outcome evaluation including but not limited to: establishing and monItoring quality improvement goals and the steps to achieve those goals; establishing standards of practice for Social Work on multidisciplinary teams; ensuring accountability in all aspects of Social Work practice in CDC + Ongoing analysis of workload measurement data, staff and client utilization patterns, caseload management and allocation + Conduct on-going clinical evaluation of CDC Social Workers to ensure compliance to College Standards, determining job expectations, professional development goals, etc. . Other administrative duties as assigned As a member of CDC multidisciDlinarv teams: . Provide social work assessment, counselling and follow-up for clients and families referred to the Child Development Centre that support children, siblings and their care- givers to adjust to the psychosocial impact of disability + Responsible for initiating, developing and maintaining liaison with community agencies and for facilitating community referrals as appropriate . Ensure timely written assessment reports for all clients a case/oad rsicl that establish appropriate goals and evaluate progress regularly . Continue individual professional development and contribute to the knowledge of social work practice . Record daily acüvities as per computerized workload measurement system (WinCIS) . Other duües as assigned MINIMUM REQUIREMENTS: . Masters Degree in Social Work . Member of the College of Social Workers and Social Service Workers of Ontario . 3 years demonstrated leadership experience in the habilitation and rehabilitation of children with a wide range of complex disabilities such as Muscular Dystrophy, Acquired Brain Injury, Spina Bifida, Cerebral Palsy and Developmental delay . Demonstrated proficiency in clinical management, conceptual, interpersonal, communi- cation and written skills . Demonstrated knowledge of local community resource system . Demonstrated knowledge and experience in working in multidisciplinary teams + Must have own car and valid driver's license U:>/"II/UJ HW~;':: 01:1 .t'll IHJ541176:!4 ELI OT . SMITH I4I 011 . ; -10- As noted earlier, the employer established a selection committee, chaired by Ms. Jones. which interviewed the grievor and Ms. Rogers. It based its decision essentially on the interview, although it also checked on the references provided by the two candidates, which, in its view, confirmed the results of the ìnterview, Even before setting up the interviews, the selection committee did not believe that the grievor. who was personally known-to Ms. Jones and to other members of the selection committee, met the minimum requirements of the job, but it decided to interview her anyway since she was a valued employee whose services the employer did not want to lose. The main concern was that the grievor did not appear to have the required "leadership experience". Ms. Jones testified that an interview .would give the grievor an - opportunity to overcome that deficiency". The selection committee asked the same 15 questions, some of which were in several parts, to each of the candidates, Ms. Jones described the interview as a .competency-based model". In addition to the 15 questions, each member of the selection committee gave a "global score" to each candi- date to rate her likelihood of success in the position. Ms. Jones testified that the decision to offer the job to Ms. Rogers was reached on the basis of the two candidates' rásumés. their scores on the interview ques- tions, and their global score. The grlevor was judged to have scored 74 points (out of 130) on the questions, and 6.5 (out of 10) on the global score, while Ms. Rogers scored 106.5 points on the questions. with a global score of 8.5. I VOl ..-~I V,J ItlU ~~:~~ t-AA Ula54~7624 ELIOT, SMITH 141 012 . : -11 - According to Ms. Jones, five questions (nos, 2, 3, 4, 5 & 9) related, in whole or in part, to the candidates' leadership experience. These questions were worth a total of 45 points. The grievor's score on these questions was 22, while Ms. Rogers' was 38. At the hearing, Mr. Foreman, representing the employer, added that a further three questions (nos. 8, 12 & 13), worth 25 points, also related to leadership experience. On these questions, the grievor scored 9.75, while Ms. Rogers scored 21. V Much of the dispute between the parties revolves around the employer's determination, stated in the competition posting, that the job required a minimum of three years' leadership experience in this field. The union took the position that this was an unreasonable decision in that this was not a senior management position, just a working level one with some added administrative duties. The employer main- tained that the qualifications it sought were consistent with the work to be performed. As noted earlier, there are two full-time Social Workers at the Child Development Centre. In addition, there has been one part-time one for about a year. The employer expects the Senior Social Worker to provide lIinitiative and leadership" to the other Social Workers, as well as to be engaged in the analysis of their effectiveness and in the development of standards. The Senior Social Worker also has her own caseload. I was referred to several awards where arbitrators have had to assess the reasonableness of the qualifications stated by the employer. In Re Reynolds Aluminum Co. Canada Ltd. and International Molders and Allied Workers Union, Local 28 (1974), 5 LAC. (2d) 251 (Schiff), the board of arbitratlon stated the proper approach for an arbitrator in such a situation (at pages 254-5): OS/29/03 THU 13:00 FAX 6135487624 ELIOT, SMITH 141 0 1:3 . : . -12 - In the ordinary exercise of management functions employers may determine in the first instance what specific qualifications are necessary for a particular job and what relative weight should be given to each of the chosen qualifications. After the employer has made the determination, arbitrators should honour the managerial decisions except in one or both of two circumstances; First, the employer in bad faith manipulated the purported job qualifi- cations in order to subvert the just claims of employees for job advancement under the terms of the collective agreement. See Re United Brewery Workers. Local 178. and Carlino Breweries Ltd. (1968), 19 LAC. 110 (Christie); Re Textile Workers Union and Lady Galt Towels Ltd. (1969), 20 LAC. 382 (Christie); Re Canadian Trailmobile Ltd. and UAW.. Local 397 (1973), 2 LA.C. (2d) 13 (Brown). Secondly, whether or not the employer had acted in good faith, the chosen qualifications bear no reasonable relation to the work to be done. See Re U.A.W.. Local 707. and Ford Motor Co. of Canada Ltd. (1970),21 LAC. 61 (Weatherill); Re Oil. Chemical & Atomic Workers, Local 9-14. and Polymer Corp. Ltd. (1972),24 LAC. 277 (O'Shea). In Re Board of School Trustees. Delta School District and Canadian Union of Public Employees, Local 1091 (1994),46 LAC. (4th) 216 (Laing), the arbitrator issued this caution about the employer's statement of job qualifications (at page 229): The standard, or minimum qualifications as they are sometimes called, must be reasonable in the sense that they must bear a reasonable relationship to the basic requirements of the particular job. An employer cannot artificially puff up the minimum qualification of the job to I the extent that employees who, by any objective standard, have the knowledge, ability and skills to perform the job, given the trial period agreed to by the parties, are either discour- aged from applying in the first instance or. even if they apply, are told they do not meet the qualifications and consequently are ßnot capable". While the employer may legitimately and properly establish minimum qualifications to avoid having to train persons who are not capable of doing the job, it may not disenfranchise employees by stretching the requirements unreasonably or raising the standard floor to a degree that is no longer in reasonable relationship to the job. In this case, I find that the requirement that applicants must have .several years' grounds experience", which I take to mean at least two years, is simply not reasonable, given the evidence before me as tQ the work to be performed, the length of time it would take an employee to learn the individual tasks, and the fact that this is an entry level job. This is especially so in light of the parties' agreement that the successful applicant will be given a three-month trial period during which his suitability will be confirmed. It may be that there are positions in the bargaining unit where an employee can only be considered capable of performing the job if the employee has several years' experience. But it cannot be said that the job of labourer - grounds is one of them. If there are peculiar or special reasons why I i OS/29/03 THU 13:00 FAX 6135487624 ELIOT,SMITH 141014 ~ . : -13 - . the job requires such a dramatic amount of experience, no evidence was presented to me to support this contention and no reasons were advanced, other than a general assertion of the right of management to make this determination. I do not doubt the importance of the administrative or leadership component of the job of Senior Social Worker. However, after carefully reviewing the evidence, I am satisfied that it was unreason- able for the employer to have placed so much emphasis on prior leadership experience. Where I fault the employer is in having sought leadership experience, as opposed to leadership ability. The fact that a person has not had particular experience does not necessarily indicate that he or she lacks the ability to perform the job. It is illogical to conclude that, in the absence of three years' prior leadership experience, a person could not perform the work satisfactorily. One wonders where the next generation of leaders would come from if prior leadership experience were routinely insisted upon in such positions. The job in dispute, it is fair to say, is one that combines uworking.level" work and fìrst-line administrative or supervisory work. There is every reason to believe that an experienced Social Worker, with leadership potential, could handle this job in a fully acceptable fashion, even if she had no prior experience in a leadership role. To quote arbitrator Laing, supra, the employer "may not disenfranchise employees by stretching the requirements unreason a- bly or raising the standard floor to a degree that is no longer in reasonable relationship to the job". That, in my view, is exactly what the employer has done in this case. I should add a further concem of mine in relation to the statement of minimum require- ments. Ms. Rogers, the successful candidate, has had a career in which she has exercised a leadership role ill the field of social work for many years. However, none of her experience has been specifically with cases of the kind served by the Child Development Centre, namely children with "complex disabilities such as Muscular Dystrophy, Acquired Brain Injury, Spina Bifida, Cerebral Palsy and Developmental delay" (to quote from the competition poster). Although experience in this field was stated to be a minimum require~ I OS/20/03 THU 13:01 FAX 6135487624 ELIOT, SMITH 1àJ015 . . . ~ . -14.. ment of the job, the selection committee chose to take a generous view of Ms. Rogers' experience, inferring that she might well have dealt with children with complex disabilities when she worked as a Senior Social Worker in a children's mental health centre. Moreover, none of the questions at the interview dealt specifi. cally with working with such children. The union argued at the hearing that, in turning a blind eye to Ms. Rogers' lack of experience with such children, while highlighting the grievor's lack of administrative or leadership experience, the committee was guilty of bias. I express no views on the charge of bias. I mention this matter merely to underline that, in the interests of ensurtng a transparent process, it is important that the statement of qualifications bear a reasonable relationship with the work to be performed. If the employer is of the view that the fact of leadership experience is more important than the type of cases where such lead- ership has been exercised, one would expect to see this reflected in the competition poster, VII The issue of leadership experience played such a prominent role in this competition that, even without other flaws in the process, the result of the competition would have to be set aside. However, I should note that two other matters are of concern to me. In the first place, while do not question the employer's decision to rely heavily on an inter- view, I do doubt the usefulness and fairness of some of the questions asked at the interview. For example, candidates were asked the following questions and were scored on them: "How did you prepare for this interview?", "What are your professional goals for the upcoming year?" and "Change seems to be a constant factor in our daily work life, whether it derives from internal or external sources. As the Senior Social Worker, what would be important to consider in managing these changes?" I do not understand how I I I . OS/29/03 THU 13:01 FAX 6135487624 ELIOT, SMITH !4l 016 . , ~ . -15- these questions could help the selection committee to assess the Us kill , ability, experience and academic qualifications. of the candidates in relation to the job (Article 13.03). They might have enabled the selection committee to determine how well the candidates were able to articulate interesting ideas in an Interview, but I am not satisfied that they were relevant to the matter at hand. Similar thoughts were expressed in Re Wellesley Hospital and Ontario Nurses' Association (1989), 5l.A.C. (4th) 55 (Weatherill), where the arbitra- . tion board questioned the employer's reliance on the candidates' ability to perform well at interviews (at pages 60-1): In both cases, although more particularly in the case of the interviews, it frequently appears that what is being assessed is not so much the Individual's actual work performance as her skill at presenting an image of herself. In this respect, the grievor's reticence and modesty appear (again, particularly in the interview), to have been taken - incorrectly, in our view - as indications of a lack of forcefulness or even of motivation. That a person manifesting these qualities in an Interview would therefore not be expected to display appropriate lead- ership qualities as a charge nurse has not been shown to be a valid proposition and is certainly not an obvious truth. My other concern is with the 'Iglobal scoreR. Since this was worth only ten points, its effect on the outcome would be minimal. However, this global score amounts to nothing more than the interview- ers' "gut feelings" about the quality of the candidates, It is a purely subjective conclusion, unaccompanied by reasons and based on considerations that were not explained at the hearing. Whatever usefulness such subjective evaluations might have in other contexts, I question whether an employer relying on them in a job competition can claim to have followed an acceptable process. An unsuccessful candidate, it seems to me, is entitled to something more than the employer's bald assertion that, in its judgment, the selected candidate was superior, even if more objective reasons were also given for the result. I I I ,()5/29/03 TEl! 13:01 FAX 6135487624 ELIOT, SMITH IàJ 017 . . ¡ . -16 - VIII For the foregoing reasons, I have concluded that the employer's decision on this competi- tion must be set aside. The matter is hereby remitted back to the employer for a new determination. DATED at Thornhill, Ontario, this 26th day of May 2003.