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HomeMy WebLinkAboutKhan 90-12-17IN THE MATTER OF AN ARBITRATION Caat S B E T W E E N: 87D64 Local 416 ALGONQUIN COLLEGE (The Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF F. KHAN - #87D64 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman Allen Merritt, Employer Nominee Ron Cochrane, Union Nominee APPEARANCES:- For the Employer: C.C. White, Counsel Janet Ross, Personnel Officer Peter Stone, Purchasing Manager For the Union: Susan Ballantyne, Counsel Bev Allen, President, OPSEU, Local 416 Fyrose Khan, Grievor AWARD This arbitration concerns the grievance of Ms. Fyrose Khan to the effect that she was improperly denied a promotion to the position of Buyer in the Purchasing and Support Services- Department of the College. The parties were agreed that the board of arbitration had been properly appointed, and that we had jurisdiction to hear and determine the matter at issue between them. The successful applicant for the position was a Mr. Rick Pook, who had been given notice of his right to attend and participate in the hearing, but who did not appear. The evidence indicates that the disputed position opened up because of a reorganization in the department, in the course of which a single Buyer position was replaced by a Senior Buyer and a Buyer. These two individuals were to report to the Purchasing Manager, and were to be assisted in their purchasing duties by the existing staff of four clerks, one of whom was the grievor. In the course of the reorganization, the Senior Buyer position was posted, and the previous incumbent in the Buyer position was the successful applicant. Subsequently, the Buyer position was posted, 'and a number of people applied for it, including the grievor. Only four of the applicants were bargaining unit members, and they were given prior consideration. Since one of them was in fact selected, consideration was never extended to anyone other than a bargaining unit employee. The position requirements as posted were in the following terms: -- 2 GENERAL ACCOUNTABILITY: Under the direction of the Manager, Purchasing and Support Services and Senior Buyer, this position_ effects purchasing activity on behalf of the entire College. The Buyer reviews requisitions, analyses supply requirements, processes purchase orders and conducts negotiations. The incumbent is required to develop and maintain internal and external contacts, to advise of college purchasing policies and to recommend alternative product/procedures. DUTIES: Typical duties include: market research to improve sources of supply; monitoring requisitions, selecting appropriate procurement procedures, analyzingquotations, negotating [sic] contracts and processing purchase orders. Liaison with suppliers' personnel and College staff is a major component of the Buyer's responsibilities. QUALIFICATIONS: 3 years of relevant experience in purchasing or a related field; High school diploma required, with preference given to candidates possessing post secondary Business credits, particularly PMAC or equivalent courses. Good communication and mathematical skills are essential. Fluency in English and French is an asset. Before entering into the detail of the selection process and the positions of the parties, it is useful to set out the provision of the collective agreement against which this competi- tion and its outcome must be tested. That provision is clause 17.1.1 of the collective agreement: 17.1.1 Consideration - Bargaining Unit Employees When a vacancy in the bargaining unit occurs and employees within the bargaining unit make application for such vacant position, the College will give proper -- 3 -- consideration to the qualifications, experience, and seniority of all applicants in relation to the require- ments of the vacant position. Notwithstanding the foregoing, where there is no increase in the complement of bargaining unit employees in the Department within which the vacancy arose, the College may forego posting and fill such vacancy by appointing a qualified bargain-' ing unit applicant from the Department. The Employer agreed, because of the dynamics of this case, to put its evidence in first, so that the reasons for the decision could be put before the board of arbitration and responded to by the grievor. This position was taken without prejudice to the Employer's argument, which we accept, that the onus in a case of this nature is on the Union to demonstrate that there has been a breach of the collective agreement. All of the Employer's evidence was put in through Mr. Peter Stone, the Purchasing Manager, who has been at the College since 1973, first in a Purchasing officer position, and then as Purchasing Manager. It appears that Mr. Stone was advised that he had a discretion under clause 17.1.1, as'set out above, to make a direct appointment. He indicated, however, that he preferred to- have a competition, particularly because there appeared to be more than one internal candidate, and he did not want to make a decision as between them on his own. The College's Human Resources Department has a written procedure by which job postings and selections are to be carried out, and there appears to be no dispute that ~this procedure was followed correctly in the present case. Ultimately, a selection committee was struck, comprising Mr. Stone, as Purchasing Manager, Mr. Paul Grace, the Senior Buyer and previous incumbent in the Buyer job, Ms. Pauline Blais, Staffing Officer in the Human Resources Department, Mr. Poncho Derriger, a Teaching Master in the'School of Trades and Technology at the College, and Ms. Louise- Barnabe, a Union Shop Steward nominated by the Union to sit on the selection committee. While there is some question on this point, the evidence indicates that the clerks in the department were invited to appoint one of their number to sit on the committee, but they declined to do so, although it seems that the grievor had sat as a representative of the clerks on the selection committee which chose Mr. Grace for the Senior Buyer job. There appears to be no dispute about the appropriateness of the composition of the selection committee. On the day established for interviews for all four of the bargaining unit candidates, the committee met beforehand to discuss a list of selection criteria prepared by Mr. Stone, but apparently adopted by all of the committee. Once again, it does not appear that there is any particular dispute between the parties as to the appropriateness of the criteria chosen; it appears rather to be in the application of those criteria to the grievor's own qualifica- tions that the difference lies. While the committee was meeting, a written test was administered to the candidates in order to assess their mathemat- ical skills in relation to the requirements of the job. Apparently because of Union opposition to the use of such a test, the results of this test were ultimately not considered. The process followed by the committee appears to be unexceptional. The committee had already seen application forms and resumes from all of the candidates, and prior to each interview they had a brief discussion of that documentation. Each member of- the committee had been assigned a certain number of questions to ask, and the same member of the committee asked the same questions to each of the candidates in turn. Mr. Pook was the first candidate interviewed, and the grievor was the second. It appears that delays in the mathematics test put off interviews more and more during the course of the afternoon, and that the grievor's interview was delayed about one-half hour from the scheduled time. Following the interviews, the committee took a break, considered their notes and their own individual preferences, and then met again to summarize those preferences. It appears that a certain degree of discussion of the candidates also took place at this time. According to notes taken by Mr. Stone, four members of the selection committee chose a Mr. Mannell as their first choice, while Ms. Barnabe chose Mr. Pook as her first choice. Three members of the committee chose Mr. Pook as their second choice', and Ms. Barnabe and one other member chose a Mr. Blondin as their second choice. No one chose the grievor. According to Mr. Stone, Ms. Barnabe then raised with the committee the issue of potential sex discrimination. She stated that she felt that there had been no such discrimination, but merely asked the members of the committee to consider whether they felt comfortable with recommending only male candidates (the grievor was the only female candidate) as their first and second choices. After discussion, all members of the committee, apparent- ly including Ms. Barnabe, indicated that they were comfortable wi~h their choices. It was put to Mr. stone that Ms. Barnabe chose Mr.- Pook as her first choice on the basis of seniority, having concluded that all of the candidates were equal on. the other issues. Mr. Stone indicated that his recollection was that Ms. Barnabe gave this explanation during the course of the grievance procedure, but did not do so at the selection committee meeting itself. Ms. Barnabe did not appear as a witness. In the result, the job was offered to Mr. Mannell, but he decided not to accept it. It was therefore Offered to'Mr. Pook, and he was subsequently appointed. The dispute between the parties appears to be based upon the grievor's assertion that she was fully qualified for the posted position. In her evidence, she said that she had performed the functions of the Buyer's job, both because she works in the Purchasing Department herself and has functions to perform there which are directly related, and also because, on previous occa- sions, she had performed the duties of the Buyer position in the absence of the incumbent. The first of these propositions is directly contradicted by Mr. Stone, who is the Manager of the Department in which she works. The second was not directly put to Mr. Stone, bu~ neither was it corroborated by Mr. Ed White, who had been the grievor's supervisor from 1978 to 1983, who was called as a witness by the - 7 - Union to support the grievor's claim. Accepting the grievor's evidence, however, still does not clearly indicate that she performed herself the full range of duties of the posted position. Rather, what she says is that "all the clerks" fulfilled the- Buyer's position on one or two occasions when both Mr. White, as Purchasing Officer, and the then Buyer were absent for extended periods. The grievor is not the most senior clerk in the group, and the most senior clerk has a number of responsibilities, at least according to Mr. Stone's evidence, which exceed those of the grievor's own position. What seems likely is that the four clerks, working together, kept the department running during the absence of the Purchasing Officer'and the Buyer on a couple of occasions some years ago. That falls short'of what was asserted before us on behalf of the grievor, that she had personally performed the duties of the Buyer's job at a level of proficiency and complete- ness such as to indicate that she had, at the time of her inter- view, the full qualifications needed for the job. As to the grievor'~ assertions that her day-to-day functions involved the same requirements as the posted job, we are prepared to accept Mr. Stone's evidence in preference to hers. On the basis of her job description, and particularly as described by Mr. Stone, and, indeed, by the grievor herself, we are of the view that while she performed clerical support functions in a very competent and highly regarded way, the grievor could not claim that this performance of her duties in one job constituted a qualifica- tion for the other. The reason that these assertions were important is that the Employer's position is that no one was qualified, and that it was therefore looking for potential to grow into the job with on- the-job training and experiehce. Mr. Stone testified that, while- the grievor looked better than Mr. Pook on paper, apparently because of her educational achievements and her current employment in the Purchasing Department, Mr. Pook emerged from the interview as a clearly preferable candidate to the grievor. Mr. Pook was the first choice of one committee member and the second choice of three others, while the grievor was not the first or second choice of any committee member. There was a considerable degree of discussion throughout the hearing in this matter as to the extent to which the grievor's nervousness during the interview, which was testified to by both the grievor and Mr. Stone, made the interview process unfair to her. There is no particular reason ascribed in the evidence for this nervousness. The grievor was kept waiting, but not for very long, and even she does not say that the waiting caused her nervousness. The grievor is involved in a number of activities and contacts which would be difficUlt to carry out if she were regularly nervous, and she says that she had been interviewed for other jobs and was not nervous then. Mr. Stone indicated that her nervousness was uncharacteristic, and that he had seen no evidence of such nervousness in her usual performance of her duties. He agreed that the committee took the nervousness into consideration as to how she might handle herself under stress, which was one of - 9 - the criteria on which the committee acted, but he rejected the proposition that the decision was made entirely on that basis. This leads us finally to a discussion of the requirements of the collective agreement in respect of such competitions, and- the standard of review which a board of arbitration ought to apply to a grievance of the present kind. The appropriate test was elaborated in Re Fanshawe Colleqe and Ontario Public Service Employees Union (Bates), unreported, May 26, 1980 (Brown), at page 10: This provision is quite different from many others contained in collective agreements allowing for competi- tions between employees where seniority governs. Where relative equality exists as to when skill and ability are qualifications for the job are established, the senior employee is entitled to the job, in that in this collective agreement the obligation is on the Employer to give proper consideration to the factors of qualifica- tions, experience and seniority to the applicants. This 'gives a broad scope of review of the applicants within those .areas with none of them being a primary factor. In other words, seniority is not given preference over qualifications or experience where, for instance, it is established that qualifications are relatively .equal. The obligation on the employer is simply to consider all of those factors in making its decision. While we do not wish to state this as a general proposi- tion, we think that in the present case a certain degree of deference has to be given to the decision of the selection committee. Two members of the selection committee came from the department where the job would be performed; one of them was the immediately previous incumbent. Both of them would necessarily know the grievor well, and would be able to assess very easily the accuracy of the grievor's claims to have performed the job or to - 10 - be possessed of directly relevant experience. Another member is from the Human Resources Department, and ought, at least, to be- familiar with the criteria set out in the collective agreement. The fourth member was a member of the academic staff, chosen- because of his role as a regular user of the services of the Purchasing Department to purchase supplies in technical areas. The final member of the committee was a Union representative, who very· properly reminded the committee to consider the possibility of latent sexual discrimination, and may or may not have also reminded the ~committee of the fact that 'seniority was an issue to be considered. None of these individuals chose the grievor as being in any way superior to Mr. Pook on the basis of the criteria which they applied, criteria which are not seriously challenged before us as being improper or irrelevant. In the result, we think that the Union simply has not made out a case that the grievor was entirely qualified for the job, nor that she was better qualified on the basis of the criteria set out in the collective agreement than Mr. Pook. The Union has established that she was nervous, but this nervousness does not appear to have stemmed from any fault of the Employer, nor does it appear to have been by itself a particularly telling issue. We do not think that, as the Union suggests in an alternative argument, the grievor's nervousness constitutes justification to order a complete repetition ~f the interview process in order to give the grievor another chance to demonstrate her qualifications. At the hearing before us, we were satisfied that the objective evidence would not support her claim, whatever effect the nervousness may have had on her advocacy of that claim at the time of the-competi- tion. It should be observed that no one suggested for a moment- that the grievor was anything but an excellent employee in her own position, and a valued member of the department. Nor did anyone suggest that the grievor would not be abl~e to perform the'job with appropriate training and on-the-job experience. The difficulty for the grievor is that the collective agreement provides for a bargaining unit wide posting and competition, which uncovered a better candidate. In the result, the grievance is denied. DATED AT TORONTO, this 17th day of December, 1990. Ke~rman I concur "Allen S. Merritt" Allen S. Merritt, Employer Nominee I dissent; dissent to "Ron Cochrane" follow Ron Cochrane, Union Nominee