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HomeMy WebLinkAboutLangis 04-07-28 . IN THE MATTER OF AN ARBITRATION BETWEEN: The Ottawa Hospital - and - OPSEU (Grievance of John Langis) Before: William Kaplan Sole Arbitrator Appearances For the Employer: André Champagne Emond Harnden Barristers & Solicitors For the Union: Paul Champ Raven Allen Cameron & Ballantyne Barristers & Solicitors This matter proceeded to a hearing in Ottawa on June 11,2002, June 11 & 12,2003, June 8 & 14, 2004. 2 Introd uction On Apri117, 2001, Mr. John Langis, a long-service Respiratory Technologist (hereafter "RT") at the Ottawa Hospital working in the Ottawa Heart Institute, filed a grievance contesting the outcome of a job competition for the position of Senior Respiratory Therapist (hereafter "Senior"), also in the Oi;tawa Heart Institute. In brief, the grievor and the union take the position that the grievor should have been awarded the Senior position, which went, instead, to another employee with much less seniority. The grievor and the union submit that the job competition results should be set aside for a number of reasons, including the fact that the employer relied exclusively on the job interview results in deciding who won the position, not to mention the fact that the employer breached an earlier agreement about how this particular job competition was to be run. For its part, the employer takes the position that the incumbent - David Dafoe, who was notified of these proceedings and his entitlement to participate in them - was, by far, the superior applicant. In fact, it is the employer's view that the grievor did so poorly in this job competition that there were no circwnstances in which he could have been awarded the position. The Collective Agreement Article 3.7 of the Collective Agreement provides that: 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. 3 Union Evidence As noted above, the position at issue is Senior Respiratory Therapist. The posting for the job, dated March" 13, 2001, set out a number of basic qualifications for the position. Speaking French at a functional level was a preferred qualification. The grievor and the incumbent were two of three applicants, and they were both interviewed by a four- person panel in April. The- grievor ended up with a mark of 46.8 percent. The incumbent obtained a mark of 69 percent. The incumbent, obviously, was awarded the position. The grievor testified on his own behalf. In his "view, he should have obtained thejob because he has considerably more seniority than the incumbent (15.7 years versus 4.93 years), has a Bachelor of Science degree, speaks French and teaches in the field at the hospital and at Algonquin College. In contrast, in the grievor's view, the incumbent. barely, if at all, met the minimum requirements for the position, did not possess a university degree or speak French, and did not have his teaching experience. It was significant to the incumbent that previous postings for this position required five years of experience. In that regard, Tammy Macdonald, a long-time employee of the Ottawa Hospital who has held various positions in the predecessor bargaining unit, including President, testified that normally five years of experience was required for a Senior position, and a number of job descriptions with five year requirements, buttressing this point, were introduced into evidence. Ms. Macdonald agreed that when the posting came up indicating that only three years of experience in a Cardiac Intensive Care Unit was required, the union did not take issue with that. 4 The grievor testified at some length about his skills and abilities. There is no doubt, as was later readily acknowledged by management, that the grievor has excellent clinical skills. He reviewed his teaching experience at Algonquin and at the hospital where he - has, over the years albeit to differing degrees, been regularly engaged with students in the preceptorship program. The grievor de~cribed his understanding of the role of the Senior and testified that he was more than qualified for the position. While another and more senior member of the bargaining unit, Sandy Goldsmith, had once held the job, she had stepped down in 1997. The position was not filled for a "number. of years, and the duties were assumed by management and other RTs. However, in 2000, Ms. Elaine Vandenberg, the Manager of the Heart Institute responsible for a large pool. of both RNs and RTs (and ward clerks), realized that she needed to fill the Senior position (in part because of some personal circumstances that made it impossible for her to continue with these extra duties). As some time had elapsed since the position had last been filled, Ms. Vandenberg wanted to approach the job, and its possible redefinition, somewhat carefully. Initially, Ms. Vandenberg wanted to invite RTs working in the Heart Institute to fill the job on a trial rotational basis. That, Ms. Vandenberg reasoned, would give all the RTs an opportunity spend some time in the position. The union refused the request. Ms. Vandenberg then, needing to have someone take charge, appointed the incumbent to the position on a temporary basis. The grievor had also indicated interest in the position and his desire to take the first rotation, but Ms. Vandenberg testified that she decideq. to give the job to Mr. Dafoe first because, she believed, he had better time 5 management skills. The grievor found this comment, and several others he related, extremely objectionable and not grounded in fact. He noted that he had nothing but excellent appraisals and that no critical observations had ever been made to him about his work. In any event, the decision to award this temporary assignment to Mr. Dafoe elicited a grievance from the union, which ~as settled on the basis that the Senior job would be posted. There were a number of other terms to this March 7,2001 settlement that are relevant to this case: a) The time spent by the current incumbent performing the duties of the position will not be considered to his benefit when assessing the "experience" factor. b) Any assessment of the current incumbent's performance of job tasks in the position will not be considered when assessing "skill" or "ability". c) Any "relevant qualifications" obtained by the current incumbent as a direct result of his performing the job will not be considered. d) The Hospital may ask questions designed to elicit responses to hypothetical situations, provided the current incumbent is directed not to reply using examples that occurred during the time spent in the position. The grievor applied for the posting, as did the incumbent and a third person who later moved to Calgary. According to the grievor, he had a sense going into the interview that the selection decision was afait accompli, as Ms. Vandenberg had already, he concluded, indicated her selection by awarding the job prior to the posting to the incumbent. Also on the panel was Sandy Goldsmith, a member of the bargairiing unit, and the former Senior, Cheryl Homuth, the Chief Allied Health, Respiratory Therapy/Cardiopulmonary Services, and Nancy Tee, the Clinical Care Manager, Coronary Care Unit and ECG. The grievor had some concerns about the interview panel, their suitability and qualifications for the task. He was also perturbed by the absence of any representative from Human Resources. The grievor felt uncomfortable when he was told that he could attend a post-interview 6 debriefing if he wished. That too made him wonder if the competition result was preordained. In his evidence, the grievor reviewed a number of the questions and answers taking issue with the propriety of certain questions and the lack of marks received on certain answers. No purpose would be serv.ed in reviewing this evidence here. I am, for reasons that follow, satisfied, on balance, even accepting for the purpose of argument that one or two of the questions were not exactly- on point, or that there was one or two answers that could have or might have attracted .more grades, that the differences were not sufficient to even come close in narrowing the gap between the grievor and the successful applicant. One reason for that may be preparation. The grievor's preparation for the interview, he testified, consisted of updating his resume, going to Human Resources to look at a copy of the job description - the griever testified that-he may have looked at the job description briefly but that he was not allowed to take a copy away with him - and performing some review by attempting to anticipate questions that he might be asked. It appears from the evidence of the management witnesses who testified that the incumbent, they later learned and in marked contrast to the grievor, conducted a fair bit of pre-i:nterview research. The,grievor-was also concerned that no one on the panel asked for references. To varying degrees, all of the members of the interview team were consulted by Ms. Vandenberg on the interview tool. They all testified that the interview was conducted exactly the same way for each candidate, that the questio~ were divvied up and that the panel engaged in consensus scoring at the conclusion of each interview. A few of 7 the questions had greater weight (and while there was some concern expressed by the union whether there might have been some confusion in grading the higher-rated questions, I do not find that to be the case). Each of the panel members spoke at some length about their background and experience. It is clear that they brought with them to the task considerable knowledge of the position and its requirements. It was taken as a given that the three applicants had the clinical requirements for the job, and so none of the questions were directed at assessing that. Moreover, all the panel members were satisfied, having studied the resumes and other application materials, that all of the . applicants, including the incumbent, had the minimum three years experience required by the posting. Considerable testimony was elicited in both direct and cross on this point. There was agreement among the panel members that a Bachelor's degree was not necessary for the job. The grievor's ability in French, one of the preferred qualifications, was not taken into account. Ms. Homuth testified that if the incumbent had not scored as well as he did, it was her view, expressed at the time, that there would have to be another job competition. In her view, the grievor's responses, generally considered, were not what one would . accept from someone with his background and experience applying for the Senior position. A number of examples were given illustrating these points. Ms. Goldsmith, who decided not to apply for the position, testified that, in her view, the questions asked in the interview captured the essential elements of the Senior role. In Ms. Goldsmith's opinion, the grievor presented at the interview with almost an entitlement or expectation that he should be awarded the position. Ms. Goldsmith, , 8 however, did not think that he demonstrated an understanding of the skills and abilities, leadership and otherwise, needed for the position. His answers were more reflective of someone approaching the job with the viewpoint of an RT, not the viewpoint of a Senior. Examples relating to certain of the grievor's answers to questions dealing with calling in staff, memoranda, ~e management, mediating cortflict and dealing with employee morale, among others, were referred to as evidence of the grievor's approach - an approach that Ms. Goldsmith did not believe was appropriate for the position. In her own experience with thegrievor, Ms. Goldsmith testified that sometimes the grievor did not get his work done. Ms. Tee also testified that the grievor approached the interview with an air of entitlement to the position. In contrast to the incumbent, she did not find that the grievor was prepared or had prepared. Ms. Tee, in her evidence, like all of the other. panel members, spent considerable time reviewing various questions and answers. She expressed concern about the grievor's general approach, and focused attention on how he proposed to deal with complaints from family members. in one of the hypothetical questions as a case in point in which the grievor appeared to lack insight into the . Senior's role and responsibilities. Ms. Vandenberg, who was in charge of the. process, testified that it was her view that someone with strong leadership, communication and conflict resolution skills was needed for the position. The Senior had to also work collaboratively with other disciplines such as nursing. The ideal applicant could work independently and would have a vision about the job and about the work of RTs. It was in order to assess these 9 critical skills and qualifications that Ms. Vandenberg developed the interview tool. She also testified that she designed the tool in such a way so as to preclude the incwnbent from taking advantage of his time in the position. None of the questions,. she testified, were related to any specific assignments Mr. Dafoe had performed. Put somewhat differently, none of the hypothetical situations related to real experiences he had had. The tool itself was based on one devised for the selection of a charge nurse, and Ms. Vandenberg testified that it worked well in that earlier competition in identifying candidates with the same type of leadership skills, etc., being sought in this competition. The scenarios and hypotheticals were, obviously, changed to reflect the work of a Senior. Ms. Vandenberg testified that the grievor, when asked why he wanted the job, replied that it was a natural evolution in his career. Ms. Vandenberg did not find this satisfactory and indicated that it was almost as if the grievor felt entitled to the position because of his long service. Concern was also expressed about the grievor's answers to a number of questions; concern about communication, conflict resolution and leadership, for the most part, and examples from the answers given such as with respect to mediating a conflict between the family of a patient and an RT. The grievor's approach, Ms. Vandenberg asserted - and this was reviewed in some detail - was simply not consistent with the type of leadership and patient care being sought. The grievor's attitude and approach toward filling out certain work measurement tools - a preexisting sore point - was also considered inconsistent with the Senior role, to give another example. 10 Union Argument In the union's submission, the grievor had clearly demonstrated that he was, at the very least, equally qualified as the incumbent. That being the case, his greater seniority should have been taken into account and he should have been awarded the position. When one considered his university degree, teaching experience, in and out of the hospital, and French fluency, that conclusion was reinforced. It just waf? not right, the union continued, that one job interview, and a flawed one at that, was used to determine who ended up with one of the best and most responsible positions in the bargaining unit. Union counsel argued that a number of the questions were not particularly useful in deterJJ:1inIDg who had the skill and ability for the position and, turning to other questions, it was far from clear how the marks were actually arrived at, as in some cases marks appear to have been given when one of the applicants answered a question a certain way, but when the other applicant answered the same question with t~e same answer, no credit was obtained. Various other flaws were also reviewed and the point repeated that whatever happened in the interview, the results could not be relied upon. The fact that there was consensus scoring underscored, to the union, the overall unreliability of the process. The fact that references were not obtained further negatived the process. The grievor had vastly superior clinical skills, had extensive teaching experience, had the greatest seniority by a long shot. These factors, along with his university education - and the union noted that the grievor testified abouthow that education even better equipped him for both the RT and Senior role - should have been taken into account. In contrast, 11 it was dubious, to say the least, whether the incumbent even had the three years of required clinical practice, and it was suggestive of something that the usual five-year rule had been modified in this case. The union asserted that to some degree, mala fides played a role in the selection decision. The union agreed that leadership was important. The grievor had demonstrated leadership in his extensive teaching. The grievor had also, in the union's view, demonstrated leadership and the other desired qualifications in his answers to various questions posed at the interview. In the union's submission, if the irrelevant questions were omitted and if the grievor had received all the credit he was entitled to, his score would have been higher. Moreover, if references had been checked, his qualifications properly considered and other manners of assessment performed, there was no doubt, none whatsoever, that the grievor would have established, at the very least, relative. equality. And that meant that the grievor, with his greater seniority, was entitled to the position. A number of the authorities were reviewed in support of these submissions. Accordingly, the union asked that the grievor be immediately placed in the Senior position and be compensated for all his losses. In the alternative, the union requested that the job competition be re-run but, to level the playing field, that the grievor first be given six months in the Senior position. The union asked that I remain seized with respect to the implementation of my award. 12 Employer Argument Employer counsel began his submissions by observing that there was no question but that the grievor was an extremely skilled RT rendering valuable service to the Ottawa Hospital. His excellent clinical skills were, likewise, not the issue. What was at issue, in management's view, was whether the job c:ompetition was flawed and whether there had been any violation of the Minutes of Settlement leading to that job competition that somehow vitiated the result. In management's view, the union had not come close to discharging its burden in this case. In the employer's submission, adopting either a standard of reasonableness. or a standard of correctness, the evidence adduced demonstrated that a fair job competition .' process took place and the superior applicant was selected; It was noteworthy, at least to management, that the union and the grievor attacked this question and that question, but never did the math to demonstrate that changing a result here or there would bring the grievor and the incumbent into the narrow range of relative equality. The reason why the union and the grievor never did the math, employer counsel suggested, was because at the end of the day it was obvious that the there was no equality between the grievor and Mr. Dafoe. The union, employer counsel observed, also took issue with the three-year experience requirement. However, the union, counsel noted, did not object to that requirement when the posting went up. And on the evidence, it was incontrovertible that the incumbent possessed it. He had, the employer observed, just shy of five years at the Ottawa Hospital. There was, in management's submission, no evidence whatsoever of 13 any mala fides. There was a decision to post. An interview tool was developed. A proper and qualified selection committee formed. Interviews were conducted, and a superior applicant was identified. All of the panel members testified without contradiction that they approached their task in an honest, not predetermined way. There was a full and frank discussion about each answer given by each candidate and an agreement on a scoring. In the employer's view, this could not fairly lead to the union asserting bad faith. The process was not perfect; no job competition ever is. But perfection, employer counsel observed, was not the standard. A number of authorities were reviewed on this and other points. With respect to the Minutes of Settlement, the employer took the position that if there was non-compliance with any of its terms, that non-compliance was technical at best, and the breach, to call it that, did not affect in an iota the final result. There was no basis, the employer suggested, to conclude, assuming for the sake of argument that I found a breach, that the proper remedy for that breach would be to put the grievor in the Senior job for six months and then rerun the competition, an alternative remedy the union announced it was seeking for the first time in final argument. That offer, management noted, had, in effect, already been made and rejected when rotational assignments were first suggested. It was also not an appropriate remedy where the results of the competition were so far apart. Being a good RT did not, employer counsel . concluded, necessarily mean that one would be a good Senior. In this case, the evidence established that a proper and fair job competition had taken place. At the end of that competition the grievor had not even come close. Accordingly, and for all of these reasons, the employer asked that the grievance be dismissed. 14 Decision Having carefully considered the evidence and arguments of the parties, I am of the view that this grievance must be dismissed. I conclude that the interview tool was, in this case, a satisfactory mechanism for determining who should be awarded the Senior position and that there is no relative equality between the grievor and the incumbent. This job competition, .like most of them, has it strengths and weakness. Put under a microscope years after the fact, problems can be identified and issues raised. To be sure, the union was able to point to some questions that seemed less relevant to the job than others, and to scoril1g 011 particular questions that did not seem as generous as it might . have been. Overall, however, and it should be noted that much hearing time was spent on these issues, where the grievor should have received marks, he got them., and where his answers were less strong, he did not get-marks. The same general points must be taken to equally apply to the incumbent. What really matters is whether, on balance, did the questions and the manner in which they were scored, give management a sound, fair and rational basis to determine who was the better candidate -for the position? The answer to that question is clear: yes, and the person correctly identified was the incumbent. The grievor's preparation for the job interview was, to say the least, minimal. All of the panel members noted in their evidence that it was as if the grievor believed he was entitled to the position because of his greater seniority; he did not understand that he had to earn the job by demonstrating his qualifications. 1 5 While the union took issue with reliance on the interview as the sole determining factor in awarding the job, suggesting that this reliance fat,Üly flawed the competition, that is not a proposition which, on the facts of this particular case, I can agree. Obviously, management should, whenever possible, obtain references and look at the personnel files of applicants for positions. Common sense, and many of the authorities, suggests no less. In. this particular case, however, the applicant pool was extremely limited, and the applicants and their already established and well-regarded clinical abilities were well known to the panel and to the employer. The whole purpose of the interviews was to find someone with the leadership skills and abilities for the Senior job. That is what the interviews were testing. Having carefully reviewed the questions, and the manner in which the whole process was conducted, I am satisfied that whatever concerns the union was able to raise, they are only around the edges. The process itself was fair and the result such that it should not be disturbed. However, the matter of compliance with the Minutes of Settlement must be considered. Without a doubt, Ms. Vandenberg should have told the panel member about these Minutes and about their specific terms. She should also have instructed the incumbent at the start of his interview that he was not entitled to rely on any of his experience in the position in answering the questions. She did neither of these things. Ms. Vandenberg testified that she designed the interview tool in such a way so as to preclude the possibility of the incumbent from relying on his experience as a Senior, obviating any need to provide him with the instructions when the interview process began. There may have been one or two questions, at best, that were not in compliance with the Minutes of Settlement. . . . 16 The fact that there was non-compliance is important. To the extent that there was, I find that the Minutes were breached and I issue a declaration to that effect. However, the breach, or breaches, in the circumstances of this case - in particular, where there is a wide gap in score results on the merits between the grievor and the incumbent - is not sufficient, years after the fact to set aside the competition. That result would be completely disproportionate to the breach or breaches. Moreover, I decline the union's invitation to put the grievor in the Senior's position on an acting basis for a period of six months followed by a re-run so as to level the playing field. For whatever this observation is worth, an acting opportunity was made available. to the grievor. It was declined. The union, as it was entitled, decided it wanted the job posted permanently, not made available rotationally. There was a job competition. The interview tool performed its designated role, and the grievor scored well below the. incumbent. Even if a few of the results were changed, for instance to take into account the breach of the Minutes, the scores are still far apart, too far apart. And I have concluded that the breach or breaches of the. Minutes of Settlement was not sufficiently serious, in the circumstances of this case, to set aside the result or to grant the . alternative relief the union seeks. Obviously, it is of critical importance in labour relations that the parties, and adjudicators, give effect to Mmutes of Settlement. Our entire system depends on honouring the agreements we reach. However, in this case, the evidence establishes that the competition was run in such a way so as to eliminate any home team advantage accruing as a result of the experience gained by the incumbent in the j . - " 17 position. Moreover, I am not persuaded that the breach or breaches identified by the union comes close to explaining away the large gap in the two scores. A few final observations. The union took issue with the employer's decision to require only three years experience as a precondition to this posting. Ms. Macdonald, who has a great deal of knowledge and experience in the practices of the employer, testified that the normal rule was five. Fair enough. But the time to have complained about a change to preexisting requirements relating to experience, if indeed one took place here, was at the time of the posting, not after the fact when the decision on the merits is put into issue. It must also be noted that on this point, when asked about this, the griever testified that it was his view that a posting was better than no posting. Had the grievor and the incumbent been doser in score, the employer would have been obligated to take into account the one stated preferred qualification: fluency in French. But until the gap was narrowed, there was no obligation on m~agement, having det~rmined that it was not a required qualification, to give it any weight. Likewise, while the grievor's university degree is undoubtedly invaluable to lùm and his work, it is not a requirement of the position. It was not required for the Senior role and was not, appropriately, therefore, given weight in determining relative equality. The grievor's teaching at Algonquin is impressive. There was nothing stopping the grievor from drawing from his teaching experience in demonstrating and illustrating the leadership he intended to bring to the Senior position. , -.' 1 8 Finally, the union asserted that management had acted in bad faith. While I have found that the employer breached the Minutes of Settlement, there is no basis to conclude that management acted in bad faith. Ms. Vandenberg dearly had a preference when it came to fillL.'g the Senior job on an acting basis. That does not mean she acted in bad faith. It means she had a preference, and she explained her reasons for it. There was what appears to be a change from-five years experience to three years. The union, if it did not like that change, should have grieved it. In the actual competition, there is no evidence that Ms. Vandenberg, motivated by bad faith, attempted to steer the results in favour of the incumbent. All of the other panel members testified about the manner in which they approached their task. It was with honesty and integrity. That testimony was unimpeached. The incumbent did better. This was not the result of Ms. Vandenberg directing these otherwise fair-minded people, including a member of the bargaining unit, to her own point of view. There is no basis for an assertion of bad faith in this case. Accordingly, for all of these reasons, the grievance is dismissed. DATED at Toronto this 28th day of June 2004. fJ I L--- William Kaplan, Sole Arbitrator