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HomeMy WebLinkAboutRozario 92-02-07.. 90D582 Local 557--(~') IN THE MATTER OF AN ARBITRATION BETWEEN: GEORGE BROWN COLLEGE (The Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF AUDREY de ROZARIO - #90D582 BOARD OFARBITRATION: Kenneth P. Swan, Chairman R. Hubert, Employer Nominee Jane Grimwood, Union Nominee APPEARANCES: For the Employer: Susan J. McDermott, Counsel Regina Park, Manager, Classification/ F.O.I., Human Resources Laura Snazel, Manager, Ontario Skills Development For the Union: Maureen Doyle, Counsel /~WARD The hearing in this matter was held in Toronto on September 23, 1991, at which time the parties were agreed that the Board of Arbitration had been properly appointed pursuant to the Collective Agreement, and that we had jurisdiction to hear and determine the matter at issue between them. That matter is the grievance of Ms. Audrey de Rozario, to the effect that she was improperly denied a promotion to the classification of support services officer D. The grievance is dated July 20, 1990, and was processed through the grievance procedure to arbitration without resolution. The position in question was the subject of Competition No. 90-109. It was a job entitled Training Consultant in the Business and Industry Training Division at George Brown College. The job involved marketing and coordinating services offered by the College under the Ontario Skills Development Office. The specified qualifications for the job were as follows: - Three year Community College diploma in Market- ing/Sales or equivalent - Five to eight years practical work experience in the business environment with emphasis on market- ing/selling - Above average interpersonal and communication skills - Analytical and organizational skills and client/accounts management The position was awarded to another employee whose seniority was less than that of the grievor, and the grievor alleges that her own qualifications and experience for the job were superior or at least relatively equal to those of the successful applicant. The grievor therefore claims the posted position. The College resists this claim on two grounds. The obvious ground is a challenge to the grievor's claim to be qualified to such an extent as to entitle her to the job. The alternative ground is that this was a temporary position, and that its temporary status was specifically stated in the job posting document. Therefore, the College argues, the appropriate provision of the Collective Agreement under which to assess its decision not to select the grievor is Article 17.3.1 rather than Article 17.1.1, on which the Union's argument is based. The relevant provisions of the Collective Agreement are as follows: 17.1.1 Consideration - Bargaining Unit Employees When a vacancy occurs and employees within the bargaining unit at the College apply, the college shall determine the successful candidate based on the qualifications, experience and seniority of the applicants in relation to the requirements of the vacant position. Where the qualifications and experience are relatively equal, seniority shall govern, provided the applicant has the necessary qualifications and experience to fulfil the re- quirements of the position. The College need not consider probationary employees. 17.3 Temporary Assignments 17.3.1 Temporary Postings Where the College has at least four (4) weeks' notice of a temporary vacancy in the bargaining unit which is expected to be of more than four (4) months' duration, - 3 - the College shall post the temporary vacancy so that bargaining unit employees can indicate their desire to be selected for such vacancy. Recognizing that the College reserves the right to select a person in the bargaining unit or hire a temporary employee at its discretion, where a bargaining unit employee is selected as a temporary replacement the employee will have the right to return to his/her regular position or its equivalent on the expiration of the temporary assignment. Resultant temporary vacancies caused by the selection of a bargaining unit employee need not be posted. It is understood the provisions of Article 17.1 do not apply to temporary vacancies. There is no doubt that, at first glance, this case fits within Clause 17.3.1, and as a consequence, in accordance with the terms of that provision, the provisions of Article 17.1 would not apply to this competition. The Union argues, however, that because the College employed all of the trappings of the process usually used under Clause 17.1.1, including posting and an interview process, the College must thereby be seen to have invoked Clause 17.1.1, and thus be bound by the substantive provisions thereof. For this purpose, the Union relies upon Re Centennial College and Ontario Public Service Employees' Union (Goldin), April 30, 1990 (Brent). That case dealt with an earlier version of Clause 17.1.1, which included, after language materially similar to the present, the following sentence: 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 bargaining unit applicant from the Depart- ment. In that case, the College posted a vacancy which fit within that sentence, but then relied upon its discretion to appoint a bargaining unit employee without posting to defend against a complaint that the posted position was not filled in accordance with the criteria set out in the Collective Agreement. The Board of Arbitration concluded that the provision required the College to choose whether to post a vacancy or to exercise its right to appoint without posting, and that the effect of posting a vacancy was to prevent the College from relying subsequently on its right to appoint. Once the vacancy was posted, there would be an expectation that the usual considerations set out in relation to qualifications and experience would apply, and any subsequent appointment other than in accordance with those provisions would have the effect of undermining confidence in the normal selection procedure. We respectfully agree with this reasoning, in relation to the language in the Collective Agreement as it formerly stood. That sentence has, however, now been removed from the Collective Agreement and the provision requiring the posting of temporary vacancies has now been inserted in the Collective Agreement. There is therefore no dispute that the College had to post in the present case, even if it intended to proceed under Clause 17.3.1. There- fore, the mere act of posting does not change in any way the fact that this is a temporary vacancy and fits within Clause 17.3.1 rather than 17.1.1. It is true that the College went through a selection procedure in this case, including the establishment of a Selection Panel and the convening of interviews with candidates, that is essentially identical to its practice in cases under Clause 17.1.1. We observe, however, that none of that practice is required by Clause 17.1.1. It may be that the College would have a difficult time justifying its decision under the criteria set out in that provision without proceeding in some such way, but the important thing is that adoption of such a procedure is in no way mandated by the Collective Agreement. Similarly, adoption of such a procedure under Clause 17.3.1 is not in any way precluded, and it is simply not a tenable argument to suggest that adopting it under one clause where it is not required to be adopted somehow has the effect of invoking another clause under which the procedure is often used, but is also not required. It is therefore our view that the College properly carried out the selection in this case under the provisions of Clause 17.3.1, and that the criteria, and in particular the priority of seniority where qualifications and experience are relatively equal, set out in Section 17.1.1, did not apply. Therefore, although we had the benefit of a considerable degree of argument from the Union about how that provision should be applied in the circumstances of the present case, we are of the view that those arguments are essentially irrelevant to what amounts to an exercise by the College of a discretion not subject to those criteria. In the alternative, the Union argued that the exercise of the College's discretion in this case was flawed, having regard to the standards for the exercise of discretion set out in the award of the present chairman in Re Meadow Park Nursing Rome and Service Employees' International Union, Local 220 (1983) 9 L.A.C. (3d), 137 (Swan). At page 143, the following appears: _._we think that the exercise of the employer's discre- tion must be in good faith, must be a genuine exercise of discretion and not merely the application of a rigid policy, and must include a consideration of the merits of each individual case. All relevant factors must be considered, but no extraneous or irrelevant considera- tions may be taken into account. Finally, we think the parties must have intended that an exercise of discretion so unreasonable that no reasonable employer could ever have come it would fall outside of the meaning of [the provision there at issue]. We heard evidence on the selection procedure from the grievor, and from two members of the Selection Panel. The grie- vor's testimony may be summarized by paraphrasing her own con- clusions. She agreed that she had not elaborated on her relevant experience to an extent anything like what she said in evidence before us, and said that she did not do so because the questions posed at the interview did not call for it. She said that she felt that the members of the Panel were just not listening to what she was saying, and that she was just going through the motions. She also said that when she gave an answer, no one picked up on that answer and explored it to see what else she had to say. She felt, in conclusion, that the questions asked at the interview were closed questions which did not give her an opportunity to set out all of her experience. On the basis of all of the evidence before us, we are simply unable to conclude that the grievor's sense of what happened was in fact objectively the case. The Selection Panel awarded the job to the successful incumbent on an unanimous decision, and did not even rank the grievor second among the applicants. In fact, the employee who ranked second had greater seniority than the grievor. It is true that the Panel did not pursue the grievor's past experience by asking for references and checking them out, but the interview certainly gave the grievor the opportunity to make the most of her past experience in relation to the qualifications for the current job. The College seems to have treated personal references as being a check on whatever was said at the interview', rather than as an independent area for investigation, and we are not prepared to say that such an approach is in any way a failure to consider all relevant factors. In effect, the Selection Panel would have been prepared to accept any statements made by the grievor at face value, subject only to checking them with referees should she had have been selected for the job. The Union argues that the selection was based entirely upon the interview. That is true, in the sense that the answers given at the interview were scored, but those answers were to questions which were designed to elicit specific information about qualifications. This is not a case where only personal impression was considered, as are some of the cases where arbitrators have inveighed against the use of interviews as the sole selection mechanism.' To whatever extent personal impression was involved, it should be remembered that this job involved marketing of College services, and personal impression was therefore in itself a very important qualification. Finally, the Union complained that the successful candidate was given credit for a post secondary degree in fine arts, but once again we are not convinced that the credit given to the grievor and the successful incumbent was other than that justified by the objective facts. There was certainly no such misconduct by the Panel in relation to qualifications as would be required to overturn an exercise of a discretion conferred by the Collective Agreement. Therefore, given that the specific criteria of Clause 17.1.1 do not apply, we are unable to say on the evidence presented that the discretion conferred upon the College under Clause 17.3.1 was improperly exercised in the present case. The result, there- fore, is that the grievance is dismissed. DATED at Toronto this 7th day of February, 1992. K~neth P. Swan, Chairman I concur "R. Hubert" R. Hubert, Employer Nominee See attached "Jane Grimwood" Jane Grimwood, Union Nominee IN THE MATTER OF AN ARBITRATION ~ BETWEEN: GEORGE BROWN COLLEGE (The Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF AUDREY de ROZARIO - #90D582 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman R. Hubert, Employer Nominee Jane Grimwood, Union Nominee DECISION I mu~t agree with the Majority in its conclusion that the College's actions in adopting the Clause 17.1.1 procedures do not prevent it from applying Clause 17.3.1. But I think it equally obvious that such actions do not serve to foster a harmonious labour relations climate. Expectations are raised; the technical defence, 'although valid, ought to be avoided. Is the burden of the 17.1.1 procedure so onerous? I think However, of more concern is the selection procedure used in this .case. I assume the College has one goal -- find the most qualified person to do the job, having regard to its publicly-funded status, but within the requirements of the Collective Agreement, if any. The selection process, in this context, should both be, and be seen to be, a free and genuine exchange of communication between the Selection Panel and the candidate. Only then, after the final selection is made, can the College expect all of its personnel to ~ork in the "colleagial" fashion it ought to be fostering. It does not seem to me to be such a terribly complicated task for those in this position to ensure that all relevant information is obtained. Hiring is an art, not a science, but you at least have to have the paints and the canvas before you begin.