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HomeMy WebLinkAbout1988-0393.Lucifora.89-03-30 ~ ~' '~ '~; ON TAR~O EMPLO¥~'$ DE LA COU~ONNE "~'~*'*' GRIEVANCE C,OMMISSION DE SETILEMENT REGLEME~T BOARD DES GRIEFS t80 DUNDAS STRE~'T WEST~ TORONTO, ONTA~O MSG ;ZS- SUITE R100 TELEPHONE/T~I..~'PHONE ~80, RUE DUNDAS OUEST, TORONTO, (ONTA.RIO) MSG ;ZB-BUREAU,~tO0 f416) 5~-0~ 393/88 [lq THI~. [R~TTEIt OF ~ ARBITI:tATION Under -THE CROCI SRPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (hucifora) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: J.W. Samuels - Vice-Chairperson S. urbain - Member A.S. Merritt - Member APPEARING FOR A. Ryder THE GRIEVOR: Counsel Gowling & Henderson Barristers & Solicitors APPEARING FOR M. Galway THE E~PLOYZR: Staff Relations Officer Ministry of Correctional Services HEARING: February 2, 1989 The grievor is a very experienced correctional officer at the Toronto East Detention Centre. He lives in Oshawa, much closer to the Whitby Jail than to Toronto East. In March 1988, he applied for a posted position of Correctional Officer 2 at Whitby and was unsuccessful. He grieves that the Ministry violated Article 4.3 of the collective agreement by selecting Ms. T. French for the position. In our view, the grievor is absolutely correct that there was a -,,iolation of Article 4.3 in this case, and we will explain the reasons for this. The posting described the duties of the position and the qualification criteria as follows: The ~E6tb~ Ja~ requires a ~ature, responsible individual ~ho c~ 'unction effectively ia a structured, disciplined settiM, to perfor~ a full range of auties related ~o the correctional care, control and supervision of ir~ates c~ an assigned, shift. (htario ~rade 1~ or formal proof of an equival~nt e~ucational standing; ~tisf~tou relat~ ~k e~ri~; g~ oral ~d witt~ c~i~tim ~flls; g~ ~~r~ ~ills ~d ability to ~ork eff~tively ~ ~a~, s~isors, ~rs, ~l~t~rs, e~.; ~ility to exerci~ s~d j~t~t ~d r~t to ~~ sixties; ~l~ge of rele~ l~islatim, re. latins, ~ltcies, e~.; ~!~le of ~tty ~i~es ~d ~~t; ~ll~ess ~d abilit~ to ~ork rotat~g ~H~, ~~ ~ holi~ys; abili~ ~ ~t ~ts~ e~i~l ~d ph~si~l s~d~, ~cl~l prov~ ability to ~~ ~tisf~ atonce. $~essf~ c~pleti~ of. ~tO~ ~is~ tr~ plus ~e ~'s ~tisf~t~y c~r~t e~rim~ ~ a ~rr~tim~ ~fi~r 1. (~idates 1~ ~ ~ ~i~ria ~11 ~ r~tr~ to ~ill at ~e ~~im~ ~fi~r 1 le~1). Article 4.3 of the collective agreement requires an appropriate consideration of the candidates in light of these required duties and qualifications. It reads: In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to per- form the required duties. Where qt~a~ificat!,ons and ability are relatively equal, length o! continuous ser- vice shall be a conside~lion. In this case, the Ministry failed utterly to give appropriate consideration to the candidates over the full range of factors necessary to make an adequate determination of the relative qualifications and ability of the candidates. The competition was intended to be an internal one at the Whitby Jail, and the candidates were all expected to be casual contract employees with somewhat limited experience. And so they all were until the grievor applied. The grievor had wanted to work at Whitby for some time, because his home is in Oshawa, and, as a result of a previous grievance which was settled, he had the right to apply for a correctional officer position at Whitby though the competition was internal. The grievor has been a correctional officer since 1974. He started at 'the CO 1 level, and moved to CO 2 in 1975 after completing his one year's probation. He has spent all but three months of his time with the Ministry at the Toronto East Detention Centre. He was a CO 2 for two months, then became an acting CO 3 for a year and a half, and was then made a CO 3 on a permanent basis. He remained a CO 3 for 3 1/2 years, acting as the Shift Supervisor (OM 15) on several occasions. Then he and his family bought a house and needed extra money. As a CO 3, he did very little overtime, so he was earning less in total than he could as a CO 2. He resigned his CO 3 position and retUrned to the rank of CO 2 in order to earn more money. And he's been a CO 2 ever since..This is a very fine career in the correctional service, and the Ministry did not suggest that the grievor's record is tainted in any way. So here we have a competition between some twelve largely inexperienced casual officers and the grievor, a very experienced officer who is considered by management to be CO 3 material, and whose performance has been so good that he has acted as Shift Supervisor at times. How is it that someone other than the grievor was selected from this group of candidates? The answer lies in the selection process. Mr. L. Migneault, the Deputy Superintendent at Whitby, was in charge of the selection process. He designed a questionnaire to test the candidates and the selection was based entirely on the scores received on this questionnaire. In conception this was a fatally flawed process, and in its execution it was even worse. First of all, there was no consideration of the personnel files of the applicants whatsoever. Therefore, with respect to all the factors which ought to have been considered and could not be tested by a questionnaire, the selection panel had no information and gave no consideration. The questionnaire could tell the panel nothing about the maturity and responsibility of the candidates, yet the posting made it clear that the · person sought had to be "a mature, responsible individual who can function effectively in a structured, disciplined setting, to perform a full range of duties related to the correctional care, control and supervision of inmates". The person sought needed "good ..... written communication skills", yet the candidates weren't asked to write anything and no information about their writing skills was before the panel. The person sought needed "good interpersonal skills and ability to work effectively with inmates, supervisors, peers, volunteers, etc." this is probably the most important bundle of attributes which had to be measured by the selection panel yet the panel had nothing before it whatsoever from which to effectively judge these characteristics. Secondly, the questions asked and the way they were scored made very little sense. For example, the candidates were asked to outline their employment and related experience. As long as a candidate had two years' experience as a correctional officer, the candidate scored 5 points for this experience. For related experience, a candidate could score an additional 3 points. Thus, the grievor's long and distinguished service as a correctional officer was given the same 5 points as the two years' of casual service recorded for a number of the other candidates. Then, because the grievor did not have any related experience (he'd been a correctional officer for virtually ail his working life), he got no points for related experience, whereas other candidates got up to three points for activity such as being a security guard. In short, given the scoring system used, the grievor wound up with fewer points on this question than most of the other candidates, yet any rational appraisal of the situation would say that he was far more experienced than any of the other candidates. Many of the questions asked were trivial or dealt with matters which do not go to the heart of assessing the qualifications and ability of a candidate to perform as a correctional officer--what is the definition of (a) segregation (b) close confinement? Name three accessories approved for -wear on your uniform? Who is the most senior public servant in the Ministry of Correctional Services? List 5 sources that govern your authority, duties and responsibilities as a C.O.? In sum, no reliance whatsoever can be placed on the scoring done by the selection panel. So what is the remedy in this case? In some cases, this Board has ordered that a competition be.rerun. In other cases, the Board has awarded the job to the grievor. The jurisprudence is explained well in Alam, 735/85 (Brandt), at pages 11-18. In our view, this is a situation where the grievor ought to be given the posted position. Given his overwhelming superiority in experience over all of the other candidates, and the fine career he has had as a correctional officer, it is inconceivable to us that any good purpose would Finally, the grievor asked for monetary compensation to cover the extra mileage he had to travel each day since the competition. He would pass the Whitby Jail on his way to and from the Toronto East Detention Centre. However, monetary compensation is intended to put a grievor into the monetary position he would have been in under the conl:r~t¢ if the breach had not occurred. In this case, the grievor has no right to a mileage allowance under the contract. Therefore, there can be no compensation for lost mileage. Done at London, Ontario, this 3Oth day of M~-c.}, ,1989. ~Q J.W. Samuels, Vice-Chairperson S. Urbain, Member A. S. Merritt, Member be served by rerunning the competition. Almost certainly, he is superior to the Other candidates in terms of qualifications and ability to perform the required duties. But .even if this were not so, he is at the very least relatively equal, 'and then his much greater seniority would have to be considered. We order that the grievor be placed in the posted position. Having said this, we are mindful of the impact this may have on the seiected incumbent, Ms. T. French. She began her employment with the Ministry in December 1986. She has a Bachelors of Arts in Psychology and Criminology. And, from her brief appearance before us, would seem to be a real asset to the Jail. We hope that the Ministry will. be able to retain her services as a correctional officer, to take advantage of the bright promise she offers.