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HomeMy WebLinkAbout1988-0665.Foster.90-04-23 '~? ONTARIO EMPLO¥{:S DE LA COURONNE . CROWNEMPLOYEE$ DEL'ONTARIO ~ GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES *GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE2100 TELEPHONE/T~-t~PHONE I80, RUE DUNDAS OUEST, TORONTO, rONTARtO) MsG 1Z8 - BUREAU 2100 (416) 598-0688 665/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Fosterl Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer Before: R.L. Verity - Vice-Chairperson T. Browes-Bugden - Member D.A. Wallace - Member APPEARING FOR M. Kuntz THE GRIEVOR: Grievance Officer Ontario Public Service Employees Union' APPEARING FOR D.B, Francis THE EMPLOYER: Counsel Winkler, Filion & Wakely Barristers & Solicitors HEARING: December 5, 1988 February 7 & 8, 1989 DECISION In a grievance dated May 27, 1988, the grievor, Murray Foster, claims that he was wrongfu)ly denied the posted position of Crown Land Planning Technician in the Bancroft District of the Ministry's Algonquin Region. Mr. Foster seeks appointment to the position with full retroactive salary and benefits. Robert Dynes was the successful applicant and although given notice of hearing he chose not to attend. However, Mr. Dynes did testify on behalf of the Employer. The relevant provision of the Collective Agreement is Article 4.3, although it may b~ useful to set out the entire Article: ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR' NEW POSITIONS 4.1 When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at least ten (i0) workingldays prior to the established closing date when advertised within a ministry, or it shall be advertised for at least fifteen (15) working days prior to the established closing date when advertised service-wide. All applications will be acknowledged. Where practicable, notice of vacancies shall be ~osted on bulletin boards. 4.2 The notice of vacancy shall state, where applicable, the nature and title.of position, salary, qualifications required, the hours-of-work schedule as set out i~ Article 7 (Hours of Work), and the area in which the position exists. 4.3 In filling a vacancy, the Employer.shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. 4.4 An applicant who is invited to attend an interview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend the interview, provided that the time off does not unduly interfere with operating requirements. 4.5 Relocation expenses-shall be paid in accordance with the provisions of the Employer's policy. The position in question is a new position in the Bancroft District within the classification Resource Technician Senior t. It is one of two new Positions in a newly created planning division of the timber section, designed primarily to assist Management Forester Bruce Fleck. The position of Crown Land Planning Technician was posted province-wide on February 9, 1988, Competition #803-88, with a closing date of March 3, 1988. Both the job specification for the position and the pOsting were prepared through the combined efforts of Bancroft Forester Bruce Fleck and his supervisor, Bancroft Forest Management Supervisor Frank Walker. Qualifications listed in the posting were summaries of duties in the relevant position specification form. The posting read, in part, as follows: RE: CROWN LAND PLANNING TECHNICIAN RESOURCE TECHNICIAN SENIOR 1 ($580.90 - $630.77 PER WEEK) SCHEDULE 6 ALGONQUIN REGION - BANCROFT DISTRICT DUTIES: UNDER THE SUPERVISION OF THE MANAGEMENT FORESTE~ TO ASSIST IN THE DEVELOPMENT AND IMPLEMENTATION OF THE 20 YEAR FOREST MANAGEMENT PLAN BY CONTROLLING THE COLLECTION AND RECORDING OF DATA FOR THE FOREST INVENTORY SYSTEM SILVICULTURAL RECORDS, TIMBER STAND MANAGEMENT SYSTEM, PERMANENT AND SEMI-PERMANENT SILVICULTURAL PLOTS, PROVIDING LICENCEES WITH ALLOCATION INFORMATION, ASSIST THE MANAGEMENT FORESTER IN THE PREPARATION AND IMPL£MENTATION OF THE ANNUAL WORK SCHEDULE WITH REGARD TO TIMBER LICENCES, TENDERING CROWN TIMBER, PROCESSING PENALTIES, PRIVATIZATION INITIATIVES. ASSIST THE MANAGEMENT FORESTER WITH FIELD INSPECTIONS TO VERIFY.PLANNED TREATMENTS AND TO SET OPERATIONAL PRESCRIPTIONS, MONITORING FIELD PROJECTS, ASSIST IN THE PREPARATION OF ANNUAL PLANS FOR PEST CONTROL, SEED ORCHARDS, SEED PRODUCTION AREA, PRESCRIBED BURNS. ASSIST IN THE ORGANIZATION AND DELIVERY OF DISTRICT TRAINING COURSES AND FIELD TOURS. QUALIFICATIONS: 1. TECHNICAL SKILLS AND KNOWLEDGE AT THE LEVEL USUALLY ASSOCIATED WITH THE SUCCESSFUL COMPLETION OF AND GRADUATION FROM A TWO-YEAR COURSE OF STUDY AT A COMMUNITY COLLEGE. 2. DEMONSTRATED PROGRESSIVELY RESPONSIBLE EXPERIENCE IN FOREST MANAGEMENT. 3. DEMONSTRATED KNOWLEDGE OF AND EXPERIENCE IN THE SILVICULTURAL TECHNIQUES OF THE GREAT LAKES - ST. LAWRENCE FOREST REGION. 4. GOOD WORKING KNOWLEDGE OF THE MANAGEMENT PLANNING PROCESS AND INTEGRATED RESOURCE MANAGEMENT. 5. GOOD KNOWLEDGE OF MINISTRY POLICIES AND PROCEDURES AND RELATED LEGISLATION. 6. DEMONSTRATED ADMINISTRATIVE AND SUPERVISORY SKILLS. 7. ABILITY TO PLAN, ORGANIZE AND TO MAKE AND EFFECT SOUND DECISIONS. , 8. ABILITY TO COMMUNICATE EFFECTIVELY BOTH ORALLY AND IN WRITING WITH THE GENERAL PUBLIC, CLIENT GROUPS AND GOVERNMENT AGENCIES. VALID M.T.C. DRIVER'S LICENCE. 10~ GOOD WORKING KNOWLEDGE OF THE OCCUPATIONAL HEALTH AND SAFETY ACT. NOTE: PLEASE INDICATE IN A SEPARATE COVERING LETTER HOW YOUR SKILLS, KNOWLEDGE AND EXPERIENCE RELATE TO~FHE QUALIFICATIONS LISTED ABOVE. There were 31 applicants for the position including the grievor, Mr. Dynes and one Fred Werner, a "casual" Tim6er Technician in the Bancroft District. The evidence established that for seven applicants already classified as TM 13, including Mr. Dynes, or RTS 1, appointment to the position would have been a lateral transfer. Mr. Walker chaired the three-person selection committee which included Bancroft Forester Bruce Fleck and Minden District Forest Management Supervisor Brian Cross. The committee wrote a series of 12 technical questions to be asked of each candidate selected for an interview with suggested answers in point form for the benefit of the panel. These questions were forwarded to Bancroft District Manager Adair Ireland-Smith for approval. The District Manager granted her approval and added one further question with regard to the current ev'olution of Forest Management Planning. According-to MK. Walker's evidence it took the better part of two days to review, assess and grade the 31 applications. Marks were assigned each application under the various qualifying categories, with special emphasis and extra markes assigned to "knowledge and experience in the Silviculture techniques of the Great Lakes - St. Lawrence Region" and "knowledge of Ministry Policies 'and Procedures". Based on the written applications, the con~nittee decided to interview the five candidates with the highest scores. Local candidates Foster 'and Werner placed first and second respectively. However, Mr. Dynes, having placed eleventh in the pre-screening process, was not among the five applicants granted an interview. In fact, only one of the seven applicants classified as TM 13 or RTS 1 was granted an interview. The selection committee conducted the interviews in mid-March. Each candidate was asked the same questions although, through inadvertence, the planning question drafted by Adair Ireland-Smith was omitted. The committee did not review reference information on any of the candidates nor did it confer with any applicant's supervisor. As Mr, Walker stated, two of the three panel members had worked with the grievor and were familiar with his capabilities. Mr. Walker testified that when the marks were totalled the grievor scored the most points, although there was "little difference in the marks of the five interviewed". The committee submitted the grievor's name to the District Manager for the approval of the Regional Director. Regional Director Allan Stewart was contacted and expressed concern as to the propriety of the selection procedure followed. He testified the his concerns included the fact that a number of qualified applicants had not been granted an interview and that. there was insufficient emphasis on the planning focus of the job. Mr. Stewart was surprised that the two top candidates were from the Bancroft District and that a number of senior employees seeking lateral transfers had been' denied interviews. He reviewed the competition file and called for reports from the District Manager and from Regional Personnel Officer Jim Purves, From his investigation, he concluded that the selection procedure was flawed and must be set aside. Mr. Stewart appointed a second selection committee to review the applications and to conduct a set of interviews based on the -7- qualifications for-the position. The five candidates originally selected would be reinterviewed. The second s~election panel was composed of Oistrict Manager Adair Ireland-Smith, Regional Forester Terry Dbbes, Regional Personnel Office Jim Purves and Bancroft Forest Management Supervisor Frank Walker. The second panel identified 14 applicants to be interviewed. However, 13 applicants were interviewed as one had already accepted another position. New questions were prepared by the second panel and the interviews took place in mid-May. The second panel unanimously selected Robert Dynes as the successful candidate. The 9rievor'placed fourth in the competition. The experience and qualifications of the grievor and Mr. Dynes should be briefly outlined. The grievor has worked for the Ministry in the Bancroft area since January 1967. He has been a Timber Technician (RT II) from 1967 to April I972; a District Timber Clerk (RT III) from 1972 to May 1976; and a Timber Group Leader (RT III) from 1976 to January 1988. Recently, he has served as Bancroft District Cut Control Inspector in charge of all logging operations on Crown Lands, To gain planning experience, Mr. Foster accepted the temporary assignment of Timber Technician (Planning) in January 1988 at the suggestion of Messrs. Walker and Fleck. Obviously, the grievor has acquired considerable technical expertise ~n silviculture techniques in the Great Lakes - St. Lawrence Forest Region, and is highly regarded fo~ that expertise by Messrs. Walker and Fleck. He has greater seniority than does Mr. Dynes. At the time of the competition, Robert Dynes was Senior Unit Technician (classification TM 13) in the Wawa District of the Ministry's North-Eastern Region. He has been with the Ministry since his student days in 1971 and currently assists the Unit Forester in reviewing management plans for the Magpie Forest F.M.A. and the Jack Pine River Crown' Management Unit. He has been a manual labourer, a Technician I, II and III as well as Resources Technician (TM-13). Ne has a broad knowledge of silvicultural techniques primarily in boreal forests and has some five to seven years experience, prior to 1981, in tolerant hardwoods in the Great Lakes - St. Lawrence Region. His Curriculum Vitae indicates a broad range of responsibility in forest management including the planning process and integrated resource management. The Union contends that Management acted improperly in setting aside the selection of the §rievor by the first panel. Miss Kuntz argued that the grievor was qualified for the requirements of the position and that management wrongly. interfered with the reasonable exercise of the first panel's disc.retion in naming a successful candidate. In support, the Union cited the following authorities. Re Marks and the Crown in Right of Ontario (Ministry of Natural Resources) (1981), 30 L.A.C. (2d) 64 (Weatherill); Re Robb Engineering, Division of Dominion Bridge Company Ltd. and United Steelworkers, Local 4122 (1978), 20 L.A.C. (2d) 340 (MacDougall); and OPSEU (P. B. Kuyntjes & R. Larman) and Ministry of Transportation and Communication GSB File #920/85, 921/85 (Gandz). The Employer maintained that the grievor was not qualified for the posted positilon. Mr. Francis argued that Mr. Stewart was justified in voiding the results of the first panel when a number of qualified candidates or better qualified candidates were not interviewed. In sum, Counsel contended that the selection of the grievor for the position would have been manifestly wrong and unfair. The Employer relied upon the following authorities. OPSEU (EatonI and Ministry of Transportation and Communications 629/85 (Knopf); OPSEU (Fazzolari, Kumal and 8udwaI) and Ministry of Transport'ation and Communication 1244/84, 1353/84, 1354/84 (Verity); and Chittle and Ministry of the Attorney General 273/80 (Verity). The central question for determination is whether or not the Employer acted properly in setting aside the recommendation of the first panel and selecting a second selection panel to choose the successful.candidate. The staffing policy of the Ontario Government Manual of Administration specifies that a competition is deemed to have been held where it can be shown that (a) "an attempt has been made to identify at least three qualified and eligible candidates" and (b) "a process of assessing and comparing the relative qualifications of eligible candidates against the selection criteria has been · followed". Similarly, the Manual of Administration defines "selection criteria" as "the requirement of a position expressed in terms of knowledge, skills, abilities, experience and personal characteristics necessary for effective performance in that position". The parties agree that the Board is not required to examine the merits of the second ~nterview process. Therefore, for the grievor to succeed, the Board must be persuaded that the process followed by the first selection panel was fair and reasonable. This is not a case where a job posting and a competition have been cancelled. In Re Robb Engineering, supra, the issue'in that case was whether or not the Employer has sufficient cause, acting in good faith, to terminate job posting procedures-. It was held that "sound and practical" reasons must exist. In the instant grievance, the evidence does not support any allegation that the Employer, in setting aside the results of the first selection panel, acted with malice or sought to discriminate against the grievor. Rather, the Employer satisifed itself, quite properly we think, that a number of apparently qualified candidates should have been interviewed and were arbitrarily and without reason denied that right. It is important to note that the posting in question was advertised on a province-wide basis. The identification of at least three qualified and eligible candidates is, of course, a minimum requirement of the government staffing policy. On the evidence adduced, there was'no rational justification for arbitrarily limiting the number of interviews to five. In the Kuyntjes case, supra, the selection panel interviewed only four of 22 applicants; however, they based the cut-off for interview purposes on the seniority of the applicants. As Vice-Chairman Gantz stated in that case at pp 5 and 6, "if the pre-screening decision screens out a better qualified candidate, the eventual decision cannot help but be faulty. Therefore, while there is clearly no right to an interview in the Collective Agreement, the nature of the eventual decision to be made requires that the pre-interview screening be done in a comprehensive and fair manner". In the instant grievance, the Board is satisfied that there was a bias, perhaps unintentional, on the part of the first selection panel in favour of local candidates. We do not fault either Mr. Walker or Mr. Fleck in actively encouraging the grievor to accept the planning technician position on a temporary basis in January 1988 on the understanding that the grievor would be ~ntitled to his old job in the event that he Was not ~uccessful in the competition. Less understandable, however, is Mr. Walker's ad~ice to the grievor to withhold any reference to the temporary pl~anning assignment in his application for the position in question. It is not credible that qualified outside employees seeking a lateral transfer would not merit an interview. Similarly, in these particular circumstances it is not credible that the two local Bancroft candidates would achieve the highest marks in the pre-screening process. In our opinion, Mr. Stewart properly intervened to complete the 'process in a reasonable manner. There was no reason to terminate the competition. The posting was properly advertised, qualified candidates applied within the time limits and the vacancy continued to exist. Despite the able argument of Mr. Francis to the contrary, the Board is I satisfied that the grievor was a qualified candidate. Obviously, Mr. Foster has a wealth of knowledge and experience as a Technician involved in tolerant hardwood in the Great Lakes - St. Lawrence Region. In our opinion, he has acquired some experience in planning as was his evidence, in his 23 years of service with the Ministry. Although he candidly acknowledged a lack of experience in the 20 year Forest Management Plan, his related experience does establish a minimum planning qualification. We are supported in this finding by the evidence that the grievor placed fourth overall (out of 13) in the second interview process. There can be no doubt that Robert Dynes was highly qualified for the job on the face of the application and was therefore entitled to an interview. His planning backgroun<~ was not seriously quest.ioned at the hearing. His experience in sil¥icu'ltural techniques in tolerant hardwoods in the Great Lakes Region, although admittedly not as extensive as the grievor's experience, meets the necessary qualification. On all the evidence, the Board is s~tisfied that Robert Dynes emer§es as the better qualified candidate for the position in question. Accordingly, the results of the first panel cannot stand. For the above reasons, this grievance must be dismissed. DATED at Brantford, Ontario, this 23rd day of April, 1990. R. L. VERITY, Q.C. - VICE-CHAIRPERSON T. BROWES-BUGDE~} MEMBER D. WALLACE - MEMBER