HomeMy WebLinkAbout1988-0554.Jeffrey.92-11-06 ONTA RIO EMP£ OYeS DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
~80 DUNDAS STREET wEST, SUITE ZiO0, TORONTO, ONTAR.~O. MSG IZ8 TELEPHOi'JE/TELE'°.',OFJE· (4:(;)3Zf-;3E~
780. ~UE DUNDAS OUEST, BUREAU 2100. TO~ONTO (ONTARIO,. M5G 1Z8 F~CStMiLE'TEL~CO~IE (416j 32~ ~3~5
~N THE ~TTER OF ~ ~T~TION
Unde~
THE CRO~ E~P~YEES COLLECT~ B~G~N~NG ~CT
Before
THE .GRIEV~CE 'SETTLE~ BO~
BETWEEN
CUPE (Jeffrey)
Grievor
and -
The Crown in Right of Ontario
(Workers' Compensation Board)
Employer
BEFORE: J. McCamus Vice-Chairperson
M. Vorster Member
D. Daugharty Member
FOR THE L. Richmond
GRIEVOR Counsel
Sack, Goldblatt & Mitchell
Barristers & Solicitors
FOR THE. M. Failes
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
HEARING: July 13, 1989
February 16,.1990
March 2, 1990
April 25, 1990
This grievance concerns a competition for appointment to the
position of Special Needs Consultant. The Grievor was an
unsuccessful candidate in the competition. The successful
candidate, Mr. Randy Jackson, was five days his junior. ~he
gravamen of the present grievance is that the Employer, in
conducting this competition, failed to comply with Article 5.~05 of
the Collective Agreement which provides as follows: '
"5.05 Role of Seniority in
Promotions and Transfers
Both parties recognize:
(a) The principle of promotion
within the service of the
Employer.
(b) That job opportunity shall
increase in proportion to
length of service.
(c) That the primary
considerations in filling a
vacancy are qualifications
and ability to perform the
required duties in a
competent manner.
(d) Therefore, in'making staff
changes, transfers or
promotions, where
qualifications and ability
are relatively equal,
seniority shall be the
determining factor."
More particularly, the Grievor alleges that the Employer has
failed to comply with sub-paragraph (d) inasmuch as it is his view
that his own "qualifications and ability" are "relatively equal"
to those of Mr. Jackson and that, accordingly, the Grie~or s~ould
1 ~
have been appointed to the position of Special Needs Consultant on
the basis of his greater seniority.
At the commencement of the hearings concerning this grievance,
the B~ard was advised by counsel that the incumbent, Mr. Jackson,
was given proper notice of these hearings and that he has chosen
not to attend or otherwise participate in them.
The Special Needs Consultant position had been created by the
Employer in 1987 as part of a much larger reorganization of the '
Employer's institutional structure and workforce. At the time of
the grievance, the Grievor held the position of Rehabilitation
Counselling Specialist, another of the positions to emerge from the
1987 reorganization. This position is rated at the same salary
level as that of Special Needs Consultant. The point of the
Grievor's complaint, therefore, is not that he should have been
promoted to a position to which a higher wage rate is attached.
Rather, the point of his grievance is that he feels that he was,
by experience and ability, well equipped for the challenges of the
Special Needs Consultant position and that he would very much like
to do the type of work involved.
In addition to the allegation that the Grievor and the
successful candidate should have been considered to be "relatively
equal", thus leading to the appointment of the Grievor, it is also
alleged that the competition itself was flawed in material
2
respects. It is further argued that the flawed nature ofl tt~e
competition should lead to the remedy of appointment of the Griever
to the position in question.
The Employer's response is that a sufficient difference
between the "qualifications and ability" of the Grievor and
Jackson, in Mr. Jackson's favour, was reasonably found by' the
Employer to exist and accordingly, that it was entitled to appoint
Mr. Jackson to the Special Needs Consultant posi{ion,
notwithstanding Article 5.05.
· Further, the Employer Argues that the competition process,
which involved an elaborate interview exercise, consultation Of
supervisors and a review of past Performance Evaluations,. was
beyond reproach. The Union includes amongst its complaints about
the competition process that the weighting of some of. the
evaluations for.particular questions on the interview schedule was
inappropriate. The Employer denies this allegation, but further
responds that even if this were true, the gap between the Grievor
and Mr. Jackson in the scores attained in the competition was ~such
that correction of any of the. alleged deficiencies in the process
would not have changed the result.
The two new positions, Special Needs Consultant ~ and
Rehabilitation Counselling Specialist (the position held byi the
Grievor at the time of the grievance), created in 1987 constituted
3
a realignment of responsibilities shouldered by two predecessor
positions, the Rehabilitation Specialist and the Health Care
Benefits (Field) Counselling Specialist. All four of these
positions deal with the .rehabilitation problems of the most
severely injured workers. As was explained on behalf of the Union,
the incumbents of these positions are the "top rehabilitation
people" and, as a result, they are the second highest paid
positions under the Collective Agreement.
In order to understand that nature of the transition that took
place in 1987 it will be useful to briefly (and therefore at the
risk of some over-simplification) describe the nature of this
rehabilitation work and the alignment of the responsibilities of
the two predecessor positions and the two new positions established
in 1987.
Broadly speaking, the needs, of the most ,severely disabled
workers, such a~ those who have suffered brain damage or spinal
cord damage rendering them either para or quadriplegic are of two
kinds. First, such clients require physical adjustments in their
environment and assistive devices in order to attain a maximum
level of mobility. Second, they ar~e obviously in need of
vocational and rehabilitative counselling to assist them in dealing
effectively with the social and financial difficulties arising from
their injuries and in enabling them to develop their full
vocational potential. In the former category, obviously, one would
4
include substantial physical modifications to the client's
residence in order to facilitate mobility. In the latter category,
for example, one would include the provision of advice concerning
rehabilitation services and.the development of a strategy designed
to secure a job placement of some kind f~r the client.
It will be obvious that there is some possibilit~ of
overlapping between these two types of services and herein lies
much of the explanation for the present dispute. In the course .of
developing a vocational rehabilitative strategy, of course, it mmy '
be necessary to consider, f6r example, further physical adjustment
to. the home environment in order to enable the client to engage in
a form of work or recreational activity in the home. In short,
providing an effective counselling function for vocational
rehabilitation may involve or require further initiatives on the
physical side. What occurred in the 1987 reorganization in
essence, was that this physical dimension of vocational
rehabilitation counselling was removed from its previous loc~tion
in the Rehabilitation Specialist position. (the position prior 'to
reorganization held by both the Grievor and Mr. Jackson) and placad
in the new Special Needs Consultant position, where it was combined
with the general responsibility for the arranging of home, vehicle,
or workplace modifications. ~
Prior to the 1987 reorganization, then, the principal
responsibility for the arrangement of such modifications for
5
severely disabled workers was a~signed to the Health Care Benefits
(Field) Counselling Specialists. The "Core Function" of that
position was described in the position description as follows
(Exhibit l(b)):
"To identify and assess the Health C&re Benefits of severely
disabled workers in order to assist them in adjusting to
living with their disability in a home environment. To make
recommendations and provide advice regarding Attendance
Allowance and other available Health Care Benefits services
and benefits. To evaluate the need for and authorize payment
of home modifications."
in the "Core Function" set out in the position description of the
Rehabilitation Specialists (the position then held by the Grievor
and Mr. Jackson), the emphasis is very much placed on counselling
in the following terms (Exhibit l(a)):
"To act in a Consultive capacity within the Division and
resolve complex vocational rehabilitation cases requiring a
high level of counselling skill in order to provide effective
rehabilitation service. To assist in the training of
'Rehabilitation Counsellors. To carry out special
investigations as required."
Nonetheless, the Rehabilitation Specialist would become involved
with what were referred to in evidence as Section 54 expenditures
on such items as home modifications. The great bulk of home
modifications and similar sorts of expenses would be made under
Section 52 of the governing legislation on the recommendation of
a Health Care Benefits (Field) Counselling Specialist. Where,
however, vocational rehabilitation required further modifications
to the client's environment, those expenditures would be made under
Section 54 of the Act on the recommendation of the Rehabilitation
Specialist. Thus, as the Grievor explained in his evidence, where
Section 54 type expenditures were required, the Rehabilitation
6
Specialist would work with the "Field Counselling specialis~" so
as to ensure that the recommendations made by the former' were
complementary to and consistent with those made by the latter. In
such cases, though the bulk of the modifications woul~d be
undertaken on the advice of the Field Counselling Specialist for
what might be referred to as medical reasons, the recommenda~ic~ns
of the Rehabilitation Specialist would, no doubt, have their own
importance. ~
The 1987 reorganization withdrew the Section 54 modification
work from those who were ~rincipally engaged in rehabilitation
counselling and placed it together with the Section 52 work in the
hands of the new Special Needs Consultants. The Core Function of
the Special Needs Consultant is set forth in its position
description as follows (Exhibit 2(a)): ~.
"To identify and assess the special needs of severely disabled
workers in order to assist them in adjusting to their
disabilities. To make recommendations and provide advice
regarding Attendance Allowance and other available services
and benefits. To evaluate, re6ommend and arrange the
installation of home/vehicle/workplace modifications and
environmental devices."
The job description goes on to make'it clear that the Special Needs
Consultant is involved in both Section 54 and Section 52
expenditures on modifications. The Core Function of~ the
Rehabilitation Counselling SDecialist (Exhibit 2(b)) emphasizes,
in language similar to that of the predecessor Rehabilitation
Specialist job description, the counselling function.
7 ~
When the reorganization of these positions was implemented in
1987, four Special Needs Consultants Positions were created. Two
of these positions were filled by affected employees pursuant to
Article 6 of the Collective Agreement. With respect to the
remaining two positions, representations came forward from the
existing staff requesting that these positions be awarded to
members of the existing rehabilitation counselling.staff on the
basis of seniority. In the event, this arrangement was agreed to
by the Employer, the two appointments were made and no objection
was forthcoming from either the Union'or other employees.
In due course, however, when a fUrther Special Needs
Consultant vacancy opened up, the Employer resolved to make the
appointment on the basis of a job posting and competition. It was
that first competition that gave rise to the present grievance.
Before turning to a consideration of the competition process and
its outcome, it should be noted that the union has urged in the
present case that the fact that the first four openings were filled
in the manner recounted above precluded or at least complicated the
Employer's ability to ignore Article 5.05(d) on the present facts.
As has been noted, the'third and fourth openings were filled on the
basis of seniority from a pool which included the Grievor and Mr.
Jackson. If the Employer was satisfied at that point in time to
make the appointments on the basis of seniority, can it now be
heard to maintain that either a competition is appropriate or that
the Grievor is not sufficiently equal in his "qual'ifications and
8
ability" to Mr. Jackson to render Article 5.05(d) applicable? In
this regard, the Union has not formally relied upon a doctrine of
estoppel, to the effect that the EmPloyer cannot now resile from
a prior commitment to seniority as the proper device for m~king
such appointments with respect to these very employees. In our
view, there is no evidence to suggest that such a forward lo~king
commitment was, in fact, given by the Employer. The Union~ does
argue, however, that this earlier decision casts some doubt on the
genuineness of the competition conducted for the contested
appointment and, indeed, on the credibility of some of the evidence
led on behalf of the Employer..
As a matter of general principle, it is our view that the
Employer is not bound, for the purposes of the present grievance,
by the practice adopted of awarding the third and fourth positions
on the basis of seniority. No evidence has been led before this
panel concerning the rationale adopted by those involved in making
the decision to act on this basis, apart from evidence which
indicated that a request was made that this approach be taken and
the Employer agreed to do so. The. fact that the Employer agreed
to do so on one occasion does not, in our view, preclude the
running of a competition on a later occasion. Indeed, the
Collective Agreement may require such a competition to be
conducted. Further, it is our view that the mere fact that the
Grievor was a member of the pool from which such appointments were
made does not, without more, preclude the Employer from making a
9
careful assessment of the respective merits of candidates drawn
from the same pool upon the occasion of a later competition.
Again, the Collective Agreement may be thought to require the
running of a proper competition of this kind. In summary, then,
we see no reason for concluding that the Employer is prevented,, by
its earlier conduct, from posting the fifth opening for the Special
Needs Consultant position, running an appropriate competition and
reaching a conclusion that one member of the earlier pool had
Sufficient superiority to another candidate from that same pool to
make it ~acceptable for the Employer to depart from the seniority
rules set out in Article 5.05(d).
The manner in which the competition for the fifth opening was
conducted was described in some detail ~in. the evidence of Mike
Jarmasz, the Manager - Specialized Counselling Service Section, who
was essentially responsible for running the process and for making
the final decision with respect to the appointment. The job
opening was posted' (Exhibit #4). Applications were submitted by
interested candidates and those who were considered to be
sufficiently qualified were interviewed ~for the position. An
elaborate interview format was prepared setting forth areas of
assessment and, indeed, specific questions to be asked candidates.
Mr. Jarmasz prepared model answers for those questions. The total
point count for the entire assessment was 175. The individual
headings and the points allocated to those headings in' the
"Selection Matrix" (Exhibit #7(a)) were as follows:
10'
1. Communication Skills 25
2. Education 5
3. Work Experience 5
4. Interview Preparation & Presentation 30
5. Knowledge of W.C.B. 15
6. Knowledge of S.V.R.S.D. 20
7. Case Management Skills 20
8. Problem Solving 30
9. Knowledge of External Resources 5
10. Training/Public speaking Assignments 5
11. Self-Development 2
12. Willingness to Travel 3
13. Other Language Capability 5
14. kttendance
175
The scoring for each heading was not in each case dependent
exclusively on the interview. The evaluation under a particular
heading would combine, in some instances, information garneredfrom
the interview, the applicant's resume, the applicant's performance
evaluations and conversations with current or previous supervisors.
It was Mr. Jarmasz's evidence that approximately 1/2 of the 175
points were allocated from information that would emerge from the
interview itself; the other half would be based on information
gleaned from these other sources.
11
The interviews were conducted by Mr. Jarmasz and Mary McMurty.
Ms. McMurty had served as Supervisor of the Field 'Counselling
Specialists. Her role in the process, according to Jarmasz, was
to assist in conducting the interviews and in making the selection.
In the event of any disagreement, Jarmasz's views were to prevail.
Both Jarmasz and~McMurty participating in the asking of questions
and both maintained separate scoring sheets. Those concerning the
Grievor and Mr. Jackson were filed in evidence (Exhibits #7 and 8).
Jarmasz indicated that after each interview the two interviewers ·
briefly discussed each candidate and then did their separate
scoring.
After completing the interviews and independent scoring,
Jarmasz then checked references, spoke with supervisors and the
interviewers reviewed performance appraisals going back three
years. The particular supervisor consulted by Jarmasz concerning
both the Grievor and Mr. Jackson was Pat Lennie. Ms. Lennie had
supervised both of these candidates as, indeed, had Mr. Jarmasz.
Having engaged in these' consultations, Jarmasz reported on
their content to McMurty and the two then collaborated on the final
scoring of the candidates. The Interview Evaluation Matrix which
was the product of this exercise was filed as Exhibit #11. That
document sets out the scores~ for all of the seven interviewed
~candidates, their total scores and the relative ranking of the
12
candidates bY Jarmasz and McMur.ty. Set out below is the list of
candidates, ranked in their final order, the initial ranking of
each candidate by McMurty (under the initials "MM") and by Jarmasz
(under the initials "MJ") and the total score awarded to'each
candidate. ~
MM MJ TOTAL SCORE
1. R. Jackson 3 1 130
2. M. Gregg 1 2 122
3. G. Anderson 2 3 103
4. A. Jeffrey 7 4 99
5. K. Cookish 6 7 96
6. RJ Teufel 4 5 86
7. R. Dickson 5 6 82
As will be seen in the above table, Ms. McMurty initially
ranked the Grievor 7th and last. Jarmasz had ranked him ~4th.
McMurty had ranked Jack,on as 3rd and Jarmasz ranked him ~lst.
Thus, both interviewers ranked the successful candidate well ahead
of' the Grievor, and, for what it is worth, the total Score
indicates a substantial gap between Mr. Jackson and the Grievor,
the Grievor being placed significantly below the median point in
the range from the highest score of 130 to the lowest score of 8:2,
A number of objections were made by the Union to the design
o'f the competition process. We are persuaded, however, that'.none
of the alleged defects rendered the process vulnerable to being set
13
aside in a grievance. In some cases, even if the process were
assumed to be defective, correction of the defect would not
significantly 'alter the respective scoring 'of the candidates.
Thus, for example, it was objected that the s¢0ring under the
categories of Eaucation and Work Experience was unfairly done.
Both of these items were assigned a maximum score of .5 points.
With respect to Education, Jackson received 5 points and the
Grievor, 4. As the Grievor appears to have more formal educational
qualifications than Mr. Jackson, in some sense, this scoring seems
hard to defend. The explanation offered by Mr. Jarmasz was that
the Grievor, having completed a B.S.W., appeared to believe that
he needed no further training. Whether or not this explanation
rings true, it is doubtless the case that if the scores of the two
candidates were reversed, this would have only a minuscule impact
on the scoring.
~ similar.response may be made to the Grieyor's objection to
the scoring in the area of Work Experience. In this category, both
candidates achieved a score of 4 out of 5. The Grievor protests,
however, that although the two candidates had worked for a similar
period of time he, the Grievor, had greater experience in working
with "spinal cord" cases, cases which would involve the Grievor in
some modification work. Thus, the Grievor's view is that he had
more experience in an area that was directly related to the Special
Needs Consultant job. Perhaps it is not surprising that two
candidates who have almost identical periods of service in the same
14
position were ranked equally under this heading. Nonetheless, it
is again the case that if the scores were adjusted to reflect the
Grievor's view, the outcomo of the total scoring would n6t be
significantly effected.
Other objections to the process fail, in our view, to ~dent~fy
real deficiencies in the process. Thus, it was argued by the Union
that the process was fatally flawed because the final score had
taken place after the~ consultation of other sources 'described
above. This had the effect of introducing "subjective" material.
We see no principled basis for objecting to the approach taken by
the Employer. As many decisions of this Board have indicated,
those other sources should normally be consulted in a competition
process of this kind. We see no flaw in the fact that the Employer
then tried to blend that further information into the evaluation
process in the form of making final assessments under the various
categories set out in the interview schedule.
Finally, it was objected that the weighting given to' ti~e
various factors was wholly "irrational". In the Union's view, more
weight should have been given.to work experience, for example, and
so on. We do not doubt that reasonable people could differ as to
the amount of weight that should be assigned to each of the
categories. Further, we accept that in an appropriate case the
problematic weighting of various factors could, indeed, constitute
an important flaw in the process. In the present case, however,
15
we view the matrix as one which constituted a reasonable attempt
on. the part of the Employer to provide a fair and adequate
opportunity to demonstrate and 'be~. assessed upon their relative
"qualifications and ability" for the Special Needs Consultant
position.
While we are thus satisfied that the competition process does
not suffer from a. fatal defect, the central question to be
addressed by this Board is whether the Union has succeeded in
establishing that in making the decision to appoint Jackson, the
Employer acted in breach of Article 5.05(d) on the basis that the
candidates being "relatively equal", the decision should have been
based on seniority. A number of arbitral authorities were relied
on by the Union to establish the scope of the jurisdiction of this
Board to review the merits of the Employer'sdecision and, further,
to indicate the nature of the burden assumed by the union in a case
of this kind. It is not necessary to consider these matters at
length for present purposes. We accept the following propositions
advanced by the union. First, we.understand the decision of the
Divisional Court in Re: Great Atlantic & Pacific Co. and Canadian
Food and Allied Workers, Local 176 (1976), 13 L.A.C. (2d) 211 n,
76' C.L.L.C. para. 14, 056 to give a clear instruction to
arbitrators in cases of this kind that the Board should not adopt
a posture of deference to management decision making in these
matters but, rather, "in determining the 'reasonableness' of the
employer's decision, the board may go a long way to determine the
16
issue submitted to it". Although we appreciate that arbitral
opinion is somewhat mixed on this Point, and further, though 'we
note-that in the A & P case, Cory, J. did not straightforwardly
state that the "unreasonableness" criterion should be ignored, 'we
are nonetheless persuaded that the significance of the A~& P
decision for present purposes was accurately stated by Professor
Palmer in Re: Governing Council of the University of Toronto and
Service Employees Union Local 204 (1981), 30 L.A.C. (2d) 187 at
p.191 as follows:
"In our opinion the onus is on the union'to show, in a case
such as this, that the grievor has qualifications for the job
in question that are relatively equal to those of the person
selected by the employer. In so doing a board of arbitration
is not bound by the employer's determination as to what the~e
qualifications in the abstract are or their assessment of the
various applicants. As we read the A & P case this is a
matter of fact like any other matter of fact and no special
deference is to be paid to the employer's views, except to the
extent the facts of the individual case support such a
conclusion. To do otherwise would, in our opinion, run
counter to the implicit intent and explicit wording of the ~
& P case."
Accordingly, we must consider whether, on all the evidence led by
the parties concerning the respective merits of the Grievor andMr.
Jackson, the Union has discharged this onus.
It has also been urged on behalf of the Union that in
discharging this burden it need only establish the absence 9f a
"substantial and demonstrable margin" between the two candida'res.
In support of this proposition, the Union placed reliance on
statements to this effect in Re Lady Galt Towels Ltd. and Textile
Workers Union (1969), 20 L.A.C. 382 which attracted the approval
17
of this Board in the decision in OPSEU (Anderson) and Ministry of
Environment 105/86. In Re Lady Galt the board stated as follows
at p.385:
"In the collective agreement before us I have come to the
conclusion, in the words of the arbitrator in Owens - Illinois
Glass Co. (1962), 2 CCH Arb. 8660, that "the real test is one
to determine who is best qualified by a substantial and
demonstrable margin .... If the margin is less than
substantial then qualifications are relatively equal and
seniority becomes the determining factor." Whether the same
might be said where the seniority clause referred to
qualifications being simply "equal" need not be decided in
this case."
(underlining added)
While we are thus persuaded' of the relevance of the "substantial
and demonstrable margin" test, we also think it important, to note
the further gloss on that test set out in the Great Atlantic &
Pacific Tea Co. of Canada Ltd. (1979), 21 L.A.C. (2d) 444 at p.447
which was also quoted with approval by this Board in the Anderson
ca~e:
"In Re Ladv Galt Towels Ltd. and Textile Workers Union (1969),
20 L.A.C. 382 (Christie), the board adopted the view that the
test of "relative equality" is really one of determining
whether'or not one employee is more qualified than another by
a "substantial and demonstrable margin". We would agree with
this, subject always to the qualification that the
determination is to be made having regard to the particular
job in question. While we imagine that differences between
employees must always be "demonstrable" if they are to be
relied on, the notion of what is a "substantial" margin of
difference is, like the notion of "relative equality" itself,
one which calls for judgment in relation to the relevant
circumstances. While a small difference between individuals
might not be substantial or significant with respect to some
unskilled job, a small difference could well be substantial
and significant in relation to a more complex task. It is a
matter of judgment, and, at least under the collective
agreement before us, that judgment is to be exercised in the
first instance by the company."
18
The point from this passage which we believe to have some releYance
to.the present dispute is the suggestion that the importan6e or
weight to be given to a particular difference between the s~ills
and qualifications of two candidates will vary with the complexity
of the task or responsibility to be discharged. Thus, the.more
complex the task involved may be, the greater the weight that may
be attached to a difference in skill or qualification in applying
the "substantial and demonstrable margin" test. Against the
background of this proposition, we remind ourselves tha~ the
Special Needs Consultants are, as we were told, the '"top
rehabilitation people" empl6yed by the Employer and, as such, are
the second highest paid positions under the Collective Agreement.
In Support of its position that a substantial and demonstrable
margin is established in the present case, the Employer relies not
only on the relative success of the Grievor and Mr. Jackson i~ the
competition process itself but, as well, on assessments of the
relative merits of the work performance of the Grievor and Mr.
Jackson offered by Mr. Jarmasz, who had supervised them both, and
by Ms. Pat Lennie who had previously supervised both candidates.
It was the view of both Jarmasz and Lennie, both of whom testified
in this proceeding, that a substantial' difference between the. two
candidates in favour of Mr. Jackson does exist and became apparent
to each of them through their supervision of the two candidates.
It. was further suggested that this difference is manifest, to some
extent, in the performance appraisals concerning the two candidates
19
which were reviewed by the selection committee.
In his evidence, Mr. Jarmasz indicated that at the conclusion
of the interview pro~ess, he did a number of reference checks and
with respect to the Grievor and Mr. Jackson, he had a discussion
witk Pat Lennie. Jarmasz indicated that Lennie had.advised him
that there were problems with the Grievor's candidacy, but that
Jackson was a superior candidate in a number of respects. He was
said to have excellent communication skills, superior case
management skills,'good problem solving skills and was described
as a "self-starter". Ms. Lennie had supervised both candidates at
a time when they were both involved to some extent in home and
vehicle modifications and that she reported that Jackson had
'superior skills in this area. The Grievor, on the other hand, who
was said to be a good communicator with good counselling skills,
was said to be experiencing difficulties in other areas such as
ease management, problem solving and decision making. 'Jarmasz
testified that Lennie's view was consistent with his own experience
in supervising th~ two c~ndidates and that he agreed with her view.
Ms. Lennie's ow~ testimony was consistent with Jarmasz's
account. Lennie indicated that Jarmasz asked her whether she could
recommend either the Grievor or Mr. Jackson for the job. Lennie
indicated that she could not recommend the Grievor. There were
said to be a number of problems with his performance. Further,
Lennie testified that she had raised these questions with Jarmasz
2O
when he succeeded her as the Grievor's supervisor. L~nnie
indicated that the Grievor had knowledge for the position as he had
been doing modifications for a number of years. Nonetheless,
because of a number of problems Lennie indicated she had with the
-
Grievor's performance, she indicated to Jarmasz that he would' have
to be satisfied that th~ Grievor's performance had "turned around".
Lennie further testified that she had been sufficiently concerned
in the summer of 1987 that she had .pulled all of the GrieVor's
current operating files and had reviewed them with the Gri~vo:r,
pointing out a number of areas of concern. .
According to Lennie, Jackson was, on the other hand, a strong
performer in.all of these areas. His work was said to be of very
high calibre and she indicated that she would recommend Jaqkson
strongly for the position.
When asked to explain why he found Jackson's candidacy to be
superior to the Grievor's, Jarmasz summarized his views by saying
that, overall, Jackson had superior problem solving abilities,
decision making skills, ability to adhere to policy directives,
coordination skills, the ability to do various things at the'same
time, flexibility, case management practices and ability to, get
down to the level of the worker he is counselling and tailoring his
strategy to the needs of the person. Jarmasz testified that he had
come to this conclusion based on his own observation, on' his
discussions with Lennie and on his review of.previ°us Performance
21
Evaluations.
Although the Performance Appraisals do not, on their face,
manifest a vast gulf in the abilities of two candidates, a careful
perusal of them does indicate that Jackson consistently receives
more favourable assessment in them than did the Grievor. It would
be pointless to quote passages from these documents at length~in
the present context. As a general matter, while the Grievor's
evaluations are generally favourable, compliments are Very often
coupled with criticisms or suggestions for improvement. While Mr.
Jackson's evaluations are not free from the latter, the compliments
are typically more effusive and less frequently coupled with
critical comments.
While some attempt was made on the Grievor's behalf to
challenge the assessments and relative ranking of the two
candidates by Ms. Lennie and Mr. Jarmasz, it is our view that no
substantial basis has been laid for a conclusion that the views of
either Ms. Lennie or Mr. Jarmasz with respect to the relative
merits of the candidates are unreliable or unworthy'of belief.
Thus, the Grievor indicated that he was not aware of' any
substantial degree of concern on the part of Ms. Lennie with
respect to his work performance. We accept this view as genuine
on the Grievor's part but, at the same time, we accept Ms. Lennie's
evidence to the effect that she did have such concerns and that
they'formed the basis for her judgment that she could not recommend
22
the Grievor~ for appointment to the SpeCial Needs. Consuitant
position. The evidence of Mr. Jarmasz and Ms. Lennie is, however,
quite consistent with the view that the Grievor is a v~lued
employee who ably discharges a difficult set of responsibili{ies.
Perhaps it is not surprising, therefore, that the Grievor doe~ not
view himself as an employee who has "problems". The fact that the
Grievor may be characterized as a valued employee workin~ an
acceptable or even a good level is not inconsistent, however,'with
a judgment that there are some'areas of concern and, further,"with
the judgment that another employee is demonstrably .' and
substantially superior in his performance in a number of respects.
On the basis of the evidence adduced at these proceedings, we
have come to the conclusion that the Union has not discharged the
burden it bears to establish that the Grievor's "qualifications and
ability are relatively equal" to those of the successful candidate,
Mr. Jackson. We do not doubt the sincerity of the GrieVor's
perception to the contrary. He had done more home modification
work than Mr. Jackson. He understandably vieWed himself as a
successful employee and is disinclined to view Mr. Jackson as' a
substantially better performer. We are persuaded, however, that
the Employer had come to' a legitimate conclusion, warranted by the
prior performance of the two candidates, that there was. a
significant difference between them with respect to.the various
skills and qualifications identified by Mr. Jarmasz as being
important. It is, of course, often difficult to determine whether
23
such differences should be considered to rise to the level of the
"substantial and demonstrable margin" threshold. We are, however,
satisfied that that standard has been met in the present case,
especially in light of the complexity of the responsibility of the
Special Needs Consultant Position and the centrality of the various
areas in which differences between the two candidates were noted
with respect to the requirements of the position.
For the foregoing reasons, then, we reach the conclusion that
the present grievance should be and therefore is hereby dismissed.
Dated at Toronto this ~th day of November, 1992.
John Vi~hairperson
DisSent" (dissent attached)
M. Vorster, Member
24
~I.~FNT ~Y ~NK~N NOMIN~- MrNN~
,~zn.~ign Z ~n~n of ~ Em~ az],d the .M~n/stry of
fariewr ot Alec_,Jetfrey (GRR
' When (he reorganizaiion of (he Branch took piace'in i§87. one of the two
new positions created was that- of S.13e¢iai Needs C,;onsuita, nt. it was agreed that!
m
seniority would be used to determine which members of the existing rehabilitatian: - '
counselling staff would be awarded the new posit~on. The grJevor, Mr. Jeffries. Was'
among those considered for one of the four position. At that time, there was no
question by the Employer about the grievor's ability to do the job. The g~ reason.
Mr. Jeffries did not become ~t Special Needs Consultant at that dine wa.~ lower
seniority than those who were ultimately ptaced into the positions. Had he beer~
appointed at that time, Mr. Jeffries would have been given preference for ithe
position over Mr. Jackson, the incumbent in the instant case. by virtue of his gm.~,' tar
seniority.
While the majority has accepted that the job selection process was ;no'[
f!awed. I must differ o.", this point as well, The Chair al~o submits that 5coring was
not based entirely on the interview process, but the evidence shows that fhe
interview was by far the greatest factor in determrning the final ranking of
candidates.
The assignment of poipt vaiues to particular categories made very little sense.
Pot example, out of the 175 scoring points possible, on!y 5 were directly atfrrbutable
to "work experience", while "intervi~,¢ preparation and presentation" received a 30
point value. "Education" was worth only 5 points and "self-development" was
valued even less by being assigned only 2 points. The Chair submits fhat the
'scoring system is not sufficiently flawed since a reversal in' the.scores awarded to
the griever and the successful candidate in these categories would not have altered
the results. [would suggest, however, that had the scores been more fairly
distl'ibuted to the various categories the results may well have been different, t
would respectfully submit that the lack of rationale provided by the empfoyer, for
using such a skewed marking system should by itself be sufficient cause to negate
the results of the competition.
I would have allowed the grievance,
Respectfully s[~bmitted,
Menno Vorster