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HomeMy WebLinkAbout1988-0766.Eadie.89-06-14 ' ONTARIO CROWN EMPLOYS=ES GRIEVANCE SETTLEMENT BOARD DUNDAS STREET WEST. TORONTO. ONT4RrO. MSG IZS-SU/TE 21~00 TEI..EPHONE 766/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ~etween: OPSEU (EADIE) Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer B~ore: J.H. Oevlin Vi'ce~Chairperson P. Klym Member D. Montrose Member For the Grievor: Peter Lukasiewicz Counsel Gowling and Henderson Barristers and Solicitors For the Employer: Laurie Oudyk Staff Relations Officer Ministry of Correctional Services Hearia~: January 3, 1989 April 14, 1989 Anne Marie James appeared on her own behalf. DECISION This is a competition grievance in which Darlene Eadie claims that the Employer violated the Collective Agreement by failing to award her a vacancy in the position of Inmate Records and Incentive Allowance Clerk at the Millbrook correctional Centre which was posted in May of 1988. At that time, the Grievor had almost three years' seniority whereas the successful applicant, Anne Marie James, was a member of the unclassified staff and, therefore, without seniority. Ms. James attended and participated in the hearing of Ms. Eadie's grievance. The provision of the Collective Agreement which is alleged to have been violated is Article 4.3 which is as follows: 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. In this case, there was no dispute that both the Grievor and Ms. James were qualified to perform the duties of the position of Inmate Records and Incentive Allowance Clerk. The Union submitted, however, that the Grievor was relatively equal to Ms. James in terms of qualifications and ability and as the senior employee, she ought to have been awarded the job. Alternatively, the Union took the position that the selection process was flawed and that, as a result, the competition must be rerun. Prior to.considering the merits of Ms. Eadie's grievance, it is appropriate to s~t out a preliminary ruling which was made by the Board at the outset of the hearing and which counsel for the Union requested that the Board include in its award. The ruling arose in the following way: Prior to the hearing, the Employer provided to the Union copies of the notes made by the selection.panel at the oral interviews of the Grievor and Ms. James as well as scores of those interviews. Copies of the written tests and scores for the Grievor and Ms. James were also provided as were experience rating sheets. Counsel for the Union requested that similar material be provided for the remaining applicants, of which there were two. The Employer declined to provide this documentation and took the position that the Union was simply on a fishing expedition. After considering the submissions of the parties, the Board directed the Employer to produce the documentation requested by the Union. In our view, the request for production could not be characterized as a fishing expedition as the Union sought to obtain specific documents which were known to exist and which were required to support its case. Moreover, for purposes of production, relevance should be broadly rather than narrowly construed. As the selection process was in issue and, in particular, the manner in which the Employer scored certain questions and assessed the past experience of the applicants, the 3 documentation in respect of the candidates other than the Grievor and Ms. James was sufficiently relevant and, therefore, was properly produced by the Employer. The Position Specification for the Inmate Records and Incentive Allowance Clerk is as follows: Immediate Supervisor's title Chief Records Clerk Purpose of Position ... To assist the supervisor in the establishment and maintenance of inmate records; to be responsible for the computation and maintenance of inmates Incentive Allowance; to maintain records related to the operation of the Institution Canteen. To relieve supervisor as required. Duties and related tasks ... 1. 40% ASSISTS THE SUPERVISOR BY INDEPENDENTLY PERFORMING CLERICAL TASKS RELATED TO THE DOCUMENTATION OF INMATRS By: ADMISSIOn: Checking warrants for accuracy, correcting errors; posting information on various forms, eg. inmate information parole form, Earned Remission ledger: accurately computing possible discharge and/or parole dates using knowledge of good conduct remission with Provincial entitlements; advising police etc. of inmates' incarceration; maintaining record of inmates' property; storing inmates valuables in vault and prepare and maintain inmates' pin money ledger card; initiate incentive allowance ledger and transmittal card for each inmate, post weekly allowance and canteen spending; prepare weekly discharge and transfer sheet. 4 DISCHArGe: Computing incentive allowance, preparing appropriate incentive allowance forms, etc. for inmates signature; explaining conditions of release, i.e. the terms of Temporary Absence and/or parole; inform police regarding inmates' release on monthly basis in the event of outstanding charges, ensure necessary follow- up prior to discharge, in conjunction with institutional officials; organizing inmates' travel arrangements ensuring personal effects are returned to inmates, prepares certificate of incarceration for each inmate. 2. 50% PERFORMS CLERICAL DUTIES REIgnED TO MAINTENANC~ O~ LNMA~ ~NC~NTIVE ALLOWANCR PROGRAMMR BY: Post weekly entries on Ledger and Transmittal cards for each inmate; member of inmate incentive allowance earned remission committee, to determine on weekly basis earned remission entitlements-for each inmate; balancing incentive allowance cards and canteen weekly; confirming physical inventory is taken weekly and stock cards updated. 3. 10% PERFORMS OTHER R~I~TED DUTIES: Responding to requests from inmates answering various questions regarding sentences, outstanding charges, etc., referring difficult requests for Superintendent's approval; liaise with local police and courts regarding outstanding charges, warrants, etc.; liaise with Ontario Parole Board, Kingston, to establish list of upcoming ontario Parole Board Hearings; performs C.P.I.C. checks through Peterborough O.P.P. on potential staff and volunteers. N.B. The responsibility of Duty 2 will alternate between incumbents as will the responsibility of relieving the supervisor during absences. Skills and knowledge required to perform job at full working level ... Knowledge of office practices and procedures, good interpersonal and communication skills; ability to deal effectively with inmates; Good knowledge of applicable sections of the criminal Code and the Ministry of Correctional Services Act; knowledge of local security procedures when dealing with inmates within institution; ability to type routine forms/correspondence. As is evident from the Position Specification, there are two major duties of the Inmate Records and Incentive Allowance Clerk, one involving clerical tasks associated with the admission and discharge of inmates and the other relating to the maintenance of the incentive allowance programme. As a practical matter, there are two incumbents in the position and the major duties are rotated between the two. The incumbent responsible for the tasks associated with admission and discharge also performs the "OTHER RELATED DUTIES" which appear on the Specification and which account for 10% of the job function. With regard to the relative qualifications and ability of the Grievor and Ms. James to 'perform the duties of the position of Inmate Records and Incentive Allowance Clerk, the following evidence was introduced: Prior to commencing employment with the Ministry, the Grievor completed a secretarial course and also worked for a two-month period as a medical secretary. The Grievor began her employment with the Ministry in August Of 1985 and throughout, she has worked at the Millbrook Correctional Centre. From August of 1985 to January of 1988, the Grievor worked as a Receptionist/Typist and in this capacity, her duties included operating the switchboard, maintaining visitor and professional registers, performing typing and other clerical tasks, maintaining the inventory of stationery for the institution and receiving incoming and outgoing mail. While working as a Receptionist/Typist, 'the Grievor also relieved in other positions such the Duty Office Clerk and the Social Services Stenographer. In January of 1988, the Grievor was the successful applicant in a job competition for a vacancy in the position of Clerk/Typist. In this capacity, the Grievor's duties included typing purchase orders, requisition forms and other correspondence, assisting in the opening of inmate mail, providing clerical services to the inmates records section and maintaining inmate files. The Grievor also attended assessment meetings and recorded inmate assessments. The Grievor reviewed in some detail the duties listed on the Position Specification for the Inmate Records and Incentive Allowance Clerk and testified that prior to May of 1988, she had performed or assisted in performing many of the major job duties and, in respect of those she had not, she was familiar with the procedures involved. The Grievor conceded, however, that she had not performed any of the functions listed "OTHER RELATED DUTIES" on the Specification under the heading, . The successful applicant, Anne Marie James, initially gained clerical experience when working at a resort on a part- time basis and during the summer while attending high school. In 1986, Ms. James completed a Law Enforcement course at Seneca ? College and, as part of this course, she worked for a summer as an Assistant Correctional officer at the Peterborough Jail. During this period, Ms. James spent approximately 40% of' her time in the office assisting the Clerk of Records with court dockets, filing and other clerical duties. Ms. James was also responsible for the inventory of the institution. In May of 1986, Ms. James began working at the Peterborough Jail on a casual part-time basis as a Correctional Officer. In this capacity, Ms. James was required to maintain a daily log book and was responsible for inmate control and supervision as well as the preparation of documentation in connection with inmate transfers, admission and discharge. In the course of her evidence, Ms. James also reviewed the duties listed on the Position Specification for the Inmate Records and Incentive Allowance Clerk and testified that as both an Assistant Correctional Officer and as a Correctional Officer, she performed many of the same or similar duties. Ms. James explained that as the Peterborough Jail is a much smaller institution than Millbrook, there is no position equivalent to the Inmate Records and Incentive Allowance Clerk and that.a number of the duties of that position are actually performed by the Correctional Officers. As inmates do not serve their sentences at the Peterborough Jail, there is also no incentive allowance programme.' Nevertheless, Ms. James testified that items are purchased for inmates at a local store and that it is 8 necessary to maintain accurate records of such purchases. Although as a Correctional Officer, Ms. James was also not involved in computing possible discharge or parole dates, she testified that she was required to be familiar with such computations in order to answer questions posed by inmates and that she actually did the computations as an Assistant Correctional Officer. Turning then to the selection process, there were four applicants for the vacancy in issue; namely, the Grievor, Ms. James, Connie Deemert and Michelle. Scriver. Like the Grievor, Ms. Deemert and Ms. Scriver were employed at Millbrook and it would appear that they became members of the classified staff only shortly before the job competition in May of 1988. The selection panel for the competition consisted of Jim Stephen, the Assistant Regional Personnel Administrator for Eastern Ontario, Alfred Lesser, the office Manager at Millbrook, and Audrey Smith, the Office Manager at the Lindsay Jail. Initially, it was intended that the applicants would be assessed primarily by way of an oral interview and, for. this purpose, Mr. Stephen prepared a series of 31 questions which he circulated to the other members of the selection panel. Prior to the interviews, the panel members reviewed the applications of the candidates and the candidates were then interviewed in turn, beginning with the Grievor. Each member of the selection panel 9 made notes of the answers given and following each interview, the members of the panel discussed and agreed upon the score to be given to the candidate for each question. Out of a possible total of 116 points on the oral interview, Ms. James received a score of 80 points, Ms. Deemert, a score of 78 points, Ms. Scriver, 72 points and the Grievor, 63 points. Because only two points separated Ms. James and Ms. Deemert, the Employer decided to conduct a written test and the questions for the test were prepared by Mr. Stephen in conjunction with the other members of the selection panel. The written test was marked out of 71 and the results were as follows: the Grievor - 42;' Ms. James - 41; Ms. Deemert - 38 and Ms. Scriver - 34. In addition to the oral interview and the written test, an experience rating sheet was designed to give credit for prior clerical experience. On this aspect of the assessment, Ms. Deemert received 12 points; Ms. James and the Grievor each received 7 points and Ms. Scriver, 6 points. On the basis of the oral interview, the written test and the experience rating, the results were as follows: l0 A.M. James 128 C. Deemert 128 M. Scriver 112 D. Eadie Although the selection panel also took into account the work performance of the applicants, Mr. Stephen conceded that the panel did not review the Grievor's performance appraisals. Mr. Stephen explained that the panel did not believe that it was appropriate to do so as similar documentation was not available for the other applicants. Instead, input concerning the performance of the Grievor, Ms. Deemert, Ms. Scriver was provided by Mr. Lesser who exercised some supervisory responsibility in relation to all of these individuals. Mr. Stephen testified that Mr. Lesser advised the other members of the panel that the performance of these employees was satisfactory. To obtain information about Ms. James' performance, Mr. Stephen telephoned both the Superintendent and the Office Manager of the Peterborough Jail from whom he received favorable comments about Ms. 'James' work at the institution. After considering the overall scores and the performance of the four applicants, it was the recommendation of the selection panel that the vacancy in the position of Inmate Records and Incentive Allowance Clerk be awarded to Ms. James. The panel's alternate choice was Ms. Deemert. Mr. Stephen 11 testified that because the selection panel did not consider the qualifications and ability of Ms. James and the Grievor to be relatively equal, the panel did not take the Griev0r's seniority into account. As indicated at the outset, the Union submitted that there were a number of flaws in the selection process. It was the initial position of the Union, however, that even on the Employer's scoring, there was a difference of only 8% between the Grievor and Ms. James and that this was sufficient to find that there was relative equality as between the two. It was the position of the Employer, on the other hand, that there was a difference of 16 points between the overall scores of Ms. James and the Grievor; that this difference was significant, and that it-was not appropriate to measure the difference as a percentage of the total score. Instead, the Employer submitted, that the Board ought to compare the scores of Ms. James and the Grievor to each other, in which case, the difference was approximately 13%. In this case, the scores for the oral interview, the written test and the experience rating totalled 202 points, out of which Ms. James received 128 points and the Grievor, 112 points. Leaving aside the manner by which the difference in scores should be expressed in percentage terms, there is a difference of 16 points between the two. In view of this difference, we are not prepared to find that relative equality 12 has been demonstrated. Moreover, for reasons which will follow, the Board finds that there were flaws in the selection process and, in the circumstances, the appropriate course is for the Employer to rerun the competition. In respect of the selection process, there is no dispute that the members of the selection panel engaged in consensus scoring or, in other words, that they discussed and agreed upon the scores to be given to each applicant for the individua1 questions on the oral interview. In Rl]sworth ~t al. and The Crown in Right of Ontario (Ministry of Community & Socla] Services), GSB File #361/80, the Board was critical of a selection panel which compared the scores of the respective applicants after each interview. The Board suggested that scores should not be compared until all'interviews have been completed. In OPSEU (Cross] and The crown in Right of Ontario (M~nistry of Transportation and Communications), GSB File # 339/81, the Board expressed the view that the members of the selection panel would have gained credibility by arriving at their scores independently rather than simply meeting after the interviews as they did and deciding that one of the candidates deserved a perfect score. Finally, in OPSEU (Bent} and The Crown in Right o~ Ontario ~Ministrv of Transportation), the Board found the selection process to be defective where members of the selection panel had engaged in consensus'scoring~' The Board-suggested that this method of scoring precluded independent decision-making on the 13 part of the panel members, created the potential for one member of the panel to dominate the others or for there to be "horse- trading" among panel members with 'respect to particular questions. As a result, the Board concluded that consensus scoring was inappropriate and should not be continued. In our view, the impropriety of consensus scoring is not as clear as suggested, particularly in the Bent award and, in future, the Board may wish to re-examine this method of scoring to determine whether it can satisfy the requirements of the Collective Agreement. In light of. the jurisprudence which has developed to date, however, and for the sake of consistency within the Board, we find that the selection process in this case was defective because the members of the selection panel did not independently score the oral interview. We also find that the selection panel acted improperly in failing to consider and review the Grievor's performance appraisals. The fact such documentation may not have been available for other candidates is not, we find, a proper basis for disregarding appraisals of the Grievor's work performance. Moreover, in this case, Mr. Stephen telephoned two individuals who had supervised Ms. James whereas for the Grievor and the other two applicants, he relied solely on the comments of Mr. Lesser. Mr. Lesser', however, had only been at the Millbrook Correctional Centre for approximately five months prior to the 14 job competition and so may not have been in a position to provide a complete assessment. In these circumstances, the Board is not satisfied that the selection pane~ gave proper consideration to the Grievor's prior work performance with the Employer. Nevertheless, as no particular score was given to the applicants for prior work performance, it is not clear that the result of the competition would have been affected had the Employer considered the Grievor's performance appraisals~ Although these appraisals indicated that the Grievor was a good employee, a similar opinion was expressed by Mr. Lesser. The more difficult issue concerns the effect of consensus scoring. .In this case, there was no dispute _that the Grievor was qualified to perform the duties of the position of Inmate Records and Incentive Allowance Clerk and on the written test and the experience rating, the scores of the Grievor and Ms. James were virtually identical. In fact, on the written test, the Grievor's score was one point higher than that of Ms. James. In these circumstances, there exists the real possibility that outcome of the oral interview was affected by the method of scoring which was used. In view of the conclusion reached by the Board concerning consensus scoring, the only appropriate remedy is to rerun the job competition. In directing that· the competition be rerun, however, we wash to make it clear that we do not accept the submission of the 15 Union that the selection process was flawed because the written test and the oral interview were not given equal weight. In our view, there was no requirement that'these two methods of assessment be weighted equally and at the outset, of course, it was intended that only an oral interview would be conducted. It was only when the scores of Ms. James and Ms. Deemert were so close on the oral interview that a written test was added to the assessment. Moreover, the oral interview was not designed simply to test oral communication skills, but for the most part, the questions were directed to knowledge of relevant clerical skills required of the Inmate and Incentive Allowance Clerk. In view of the conclusion which we have reached, it is unnecessary to deal with the Union's objection to the Employer's assessment of particular questions on the oral interview or the scoring of clerical experience. There may, however, be some merit to the Union's contention that the Employer was particularly generous with the rating given to MS. James for prior clerical experience. In the result and for the reasons set out, the Board directs that the job competition be rerun and that this competition be open to those who participated in the original comDetition. The Employer shall constitute a new selection panel to ensure that there is a fresh determination of the matter and the panel shall discount any experience gained by Ms. James since I6 her appointment to the position of Inmate Records and Incentive Allowance Clerk. The experience gained by Ms. James prior to the original competition is, of course relevant to her qualifications and ability to perform the job. The Board shall remain seized for purposes of implementation of this award. DATED AT TORONTO, this 14th day of June , 1989. J.H. Devlin,~ Vice-Chairperson P. Klym, Member D. Montrose, Member