HomeMy WebLinkAboutYip 95-09-30 GEORGE BROWN COLLEGE
(THE EMPLOYER)
AND:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(THE UNION)
AND IN THE MATTER OF THE GRIEVANCE OF BRENDA YIP, (OPSEU ~ 92Hl17)
BOARD OF ARBITRATION:
HOWARD D. BROWN, CHAIRMAN
DAVID W. GUPTILL, EMPLOYER NOMINEE
SHERRIL MURRAY, UNION NOMINEE
APPEARANCES FOR THE EMPLOYER:
CATHERINE L. PETERS, COUNSEL
APPEARANCES FOR THE UNION:
J. AiICK RYDER, COUNSEL
HEARINGS IN THIS MATTER WERE HELD AT TORONTO ON OCTOBER 6TH, 1993,
SEPTEMBER 29TH, 1994 AND APRIL 28TH, 1995.
AWARD
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The grievance dated September 21, 1992 is a claim that the
Employer violated Article 17.1.1 of the collective agreement then
in effect between the parties by denying her the position of
Support Services Officer B in job posting # 92-154. The Incumbent,
Elinore Sison was given notice of these proceedings and attended at
the first hearing. As at the second hearing by which time the
Union's evidence had been completed and the Board was in the midst
of the Employer's evidence, the Incumbent although notified of the
date of the proceedings was absent because of a year's personal
leave ending in August 1995.. The Board ruled that the Incumbent
ignored the notice of the continuation of hearing to her determent
and would not grant an adjournment to accommodate her personal
interests but would proceed with the hearing and did so.
There is no dispute as to the composition of the Board or as
to its jurisdiction to deal with the matter in dispute which
involves the following job posting:
INTErNaL ~)$?ING--SUPPORT
(Open to all Full-Time Staff Of George Brown College)
CLASSIFICATION: Support Services Officer B INCUMBENT: N. N£ckle
SALARY: $30,794.40o$34,179.60
PAY BAND: 9 ALLO~/~NCE= N/A
DIVISION: Access & Program Dev. C~HPUS:. St. James
COHPETITION ~t 92-154 STATUS= Probationar~
EFFECTIVE DATE: Septets= 1, 1992 ~FILIATiON: CPSC--Support
PUBLICATION DATE: July 24, 1992 C~SING DATE: July 31, 1992
QU~IFICATIONS:
- Graduate of a ~ree year Co~ity College Business program
or e~ivalent ..... ~ '
- Up to 3 years pre,ica1 e~erience b(,-'~'
- Excellen~ computer skills especially budgen related
- Proven e~erience in budget preparation and monitoring
- Demonstrated abi1%ty to analyze statistical info~a=ion
- Good co~unica~ion'skills including repo~ ~iting skills
- Good inte~ersonal skills
- ~ility to work independently
DUTIES:
'~ ~/ ~ Provides support services of an administrative nature to the
~,~'- ' ~ Chairperson, Career Development Department
/ ~q~mpiles and analyzes statistical, information for reports
,.~4~ ~ - to sponsoring agencies
- Provides departmental liaison for Payroll, Accounting and
Q' ~-- Human Resources Department.
- Attends College/~inistry meetings on the Chairs behalf as
· %~ well as with the Chairperson
- Performs other related duties as assigned
.-O APPLY: Please send a co%ering letter (cll]oting competition number) and
a resume (detailing. education and experience) to:
The Hanager, Employment & Career services
500 Hae~nerson Avenue
We invite applications from qualified candidates. ~eorge Bro~ College is
committed to employment equit~ and encourages applications ~rom women, visible
minori~ies, persons with disaDilit~es and aboriginal people.
The dispute arises on the provisions of Article 17 - Job
Posting/Promotions in the collective agreement relating to Support
Staff of the Colleges in effect from September 1992 to August 1994
as follows:
"17. JOB POSTINGS/PROMOTIONS
17.1 Notices
Notice shall be posted of a vacancy in a classification
covered by the Agreement for a period of five (5) days at
each Campus and, at the same time, shall be sent to other
locations of the College. No outside advertising for the
position shall be conducted and no employee shall be
hired from outside the College until the position has
been posted for the said five (5) days. Such notice
shall contain the classification, payband, hourly rate
range, current Campus location, current hours of work,
current shift(s), and an outline of the basic
qualifications. Such notice shall be posted in
appropriate locations accessible to employees. For the
purposes of this Section, reference to days shall exclude
Saturdays, Sundays, and statutory holidays. Copies of
~all posted vacancies hall be sent to the Local Union
President at the time of distribution for posting.
17.1.1 Consideration - Bargaining Unit Employees
When a vacancy occurs and employees within the
bargaining unit at the College apDly, 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
requirements of the position.
The College need not consider probationary
employees..."
At the date of the grievance, the Grievor was employed as the
Administrative Assistant to the Dean of Health Sciences Department
which position she has held since 1986 and has been employed by the
College since 1983. At the time of the job posting, the Incumbent
was employed by the College on a contract and was not a member of
the bargaining unit and accordingly not a participant in the
competition which was confined to the internal applicants. Of
those four applicants, one of whom withdrew and the others were
rejected for the position, only the Grievor pursued her claim
through the grievance and arbitration procedure under the
collective agreement. Having rejected the applications of the
bargaining unit members, the Employer accepted the Incumbent's
application for the position after the notification to the Grievor
that she was not a successful applicant for the job, all of which
is in accordance with the procedure set out in Article 17. The
issue arising from this grievance does not involve a competition
between the Grievor and the Incumbent but rather is whether the
Grievor has the qualifications to meet the requirements of the
position and in that regard was in competition with the other
internal applicants for the position. As the Grievor was the only
applicant to file a grievance, the issue for this Board is narrowed
to whether the Grievor had the qualifications, experience and
seniority to meet the requirements of the posted position and it is
obvious in these circumstances that seniority is not a determining
factor. By letter dated September 15th, 1992, the Grievor is
advised by Ms. Critchley, Manager, Employment and Career Services
that:
"...we have concluded that your qualifications and
experience do not fully meet the requirements of this
particular job and are therefore unable to offer you the
position. The College will be advertising externally..."
The Selection Committee for the position found that none of the
internal applicants were qualified. The Grievor requested an
explanation as to how she failed in her memo of September 10th,
1995 to which Ms. Critchley responded on September 16th:
"The Selection Committee very carefully considered the
experience and qualifications of each of the candidates
in this competition. It was the unanimous view of the
Committee that your experience and qualifications, do not
meet the requirements of this particular position..."
It is the Employer's position that its decision was reasonable
and made in good faith without discrimination in concluding that
the Grievor and the other internal applicants did nbt meet the
minimum requirements for the position and correctly, proceeded to
select an external candidate. The Union's position is that Article
17.1.1 requires only that the Grievor show that she is qualified
for the position and having done so, the onus shifts to the
Employer to show why the Grievor should not obtain that position.
Reference was made to the job reversal procedure in Article 17.1.2
providing for a 60-calendar day trial period in the job.
The focus of the Employer's Selection Committee chaired by Ms.
McKay was that the position was 95% budget related. The Grievor's
CV indicated that in 1990, she was enrolled at York University in
the part-time degree program for the Bachelor, Administrative
Studies; and obtained a Marketing Certificate at George Brown
College 1987-1990 and an Ontario Management Development Program -
Management Certificate. Her present position involved the
development of an office system for the efficient performance of
the Dean's Office in the Health Sciences Division prior to which
she had been a Ground Receptionist and Sales Representative for two
airlines; Secretary to the Director of Marketing, BBM Bureau of
Measure and Executive Secretary to President at Vanity Cosmetics
and had obtained a secretarial course and had performed
bookkeeping, sales and secretarial work prior to accepting an
entry-level position with the College as a Steno TypiSt and in
1985-86 was an Operator B - Word Processor was working as Assistant
to the Dean, Continuing Education when she transferred to her
present job in Health Sciences. She said she had exposure to the
budget in the Industrial Division which was under the
responsibility of the Dean for that department and hel~ed the Chair
monitor that budget. The budget of the Chairs relate only to their
section of the division. She prepared a budget document for the
Dean's approval and the budget for the division would then be sent
to the various Chairs. In her present position, she said she has
more intense budget responsibilities as the Health division is
larger than Business having 15 programs in 3 campuses and is more
complex. She also looks after the program review budget. In her
job description prepared in April 1993, 15% of her time is involved
in:
"analyzes and monitors monthly financial reports which
involves interpreting complex financial data. Gives
recommendations for corrective action. Assists with the
preparation and administration of the divisional budget.
This involves full understanding of College budget
process and established guidelines to follow."
She said there had been little change in her job from the date of
the competition and none with respect to the above duties which she
performed at the time of the competition. The classification was
subsequently changed to Atypical Secretary and is at the same
payband as the Support Services Officer B position.
The Grievor presented a performance appraisal of her newly
described job classification of "Atypical Secretary" -with the
position title of Administrative Assistant in the Health Sciences
Division prepared in January 1993, obviously after the competition
but which we find to be relevant for the purposes of identifying
those tasks which the Grievor testified she was performing in the
division at the time of this job competition. Reference in that
document as a major duty is "budget monitoring" and it is noted
that the Grievor was above average in the headings on the
evaluation except for punctuality and interpersonal skills in which
she is marked excellent.
The summary of the posted position indicates:
"under the direction of the chair, the incumbent is
responsible for providing and monitoring extensive budget
information for Futures, Vocational Orientation, College
Vocational, Career Change, career and. work counselling
and the career centre." ~
The Grievor said that when she was in the Industrial Training
Division, she had contact with the Futures program and Work
Experience which is now called Career Development with more duties
added. At that time there was a budget involved which was the
responsibility of the Dean to whom the Chair. of the division
reported. She assisted in monitoring the budget. The Grievor
referred to a number of certificates issued by the College for
programs in which she participated and completed in Continuing
Education, including Business Management Studies, recognition of
her assistance in interpreting for Chinese visitors as well as
other acknowledgements of her participation in activities for the
College. She said that she uses her own system t~ run the
financial budget in the division on the I.B.M. computer using Lotus
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and S.R.B. and has used the MAC in the Business Division and at her
home. She assists the Dean in the preparation of budgets, records
the accounts and maintains a close check on the system with a
review of the budget submissions from the Finance Department. She
has contact with the Payroll and Accounting Departments. She
prepares budget reports and projections for the Dean and follows
the computer printouts for the Revenue - Expenditure; she does not
have Petty Cash accounts. The Grievor testified that she works
with a minimal supervision and has both internal contacts with
faculty, administrative representatives and students as well as
external contacts with other Colleges and outside agencies.
At the Grievor's interview for the position which extended for
about 45 minutes, the budget component of the position was stressed
and she told the Committee that 30 per cent of her present duties
involved budget. She was interested in the position as it involved
budgeting was an opportunity to advance to a Counsellor position
which was her long-term goal. She had submitted her resume with
her application for the posted position and explained to the
Committee what she did with the budgets in her department. When
she obtains the analysis information from the Chairs, she prepares
the document for the Dean's consideration. She checks all
purchases in relation to the money available for the division
before the Dean signs requisitions. She did not present to the
Selection Committee her certificates of course completions at the
College but relied on her resume in which her education and
training has been set out although she told them that she had the
supporting certificates in her binder which was not examined. Each
member of the Committee had asked her questions to which she had
replied. In response to questions from the Incumbent, the Grievor
said the difference in the budget responsibility was that there
were two additional accounts. The Dean has the financial
statements from the Chairs all of which comes to her attention for
reporting and purposes.
Ms. Diagle, Manager of Office Systems in the Academic Skills
Department since May 1990 had been Secretary to the Chair of the
Career Development Department in which the vacant position arose
and was a member of the Selection Committee. She said as
Secretary, she had the responsibility to put together the annual
budget for the department to be submitted to the Ministry and to
monitor the monthly expenses and was involved in the various
funding sources including payouts from the Trainee Budgets with the
required forms sent to the Dean. She said the Grievor had no role
in that process as the package was in a final form for the Dean's
signature. In 1990, the programs were transferred to the Career
Development Department and became her responsibility with added
programs which changed the job with different funding sources. As
a result, there were two jobs created, Secretarial and Support
Officer, the duties of which were familiar to her. The other
members of the Committee were Joan McKay, Alison Critchley and
Yvonne Young, a Union representative. Questions were prepared in
advance for each candidate and each of the Committee members graded
candidates. At the end of their interviews, grading sheets were
assessed by Ms. Critchley but her assessments of the-internal
candidates could not be found. She said the Grievor appeared to be
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very nervous at her interview and questions had to be reworded for
her but in her opinion, the Grievor did not have the necessary
experience and was not qualified for the position. At the end of
the interviews, the scores were tallied and the consensus of all
four Committee Members was that the Grievor was not appropriate for
the position. The Incumbent was then working in the vacant
position reporting to Ms. McKay but her application was not
considered until their assessments of the internal candidates had
been completed, she did not believe that she was aware of the
Incumbent's application for the job at the time of the Grievor's
interview.
Joan McKay, Chair of Career Development in the Facility of
Access and Preparatory Studies Division which is mandated to
provide access to students in transition requiring upgrades for
College programs and to provide programs and services to the
clients and students who have special needs and develop a design
program in the community, had requested the posting for the Support
Services Officer B position. She was Chair of the Selection
Committee formed to fill the vacant position. The Incumbent, who
reported to her, performed those duties on a temporary basis at the
time. The position has been in the department for some years
without change to the required duties. She said the key duties and
responsibilities involve all of the budget-related activities for
the department and is a 95 per cent budget-related job. Depending
on the funding sources, they are required to make extensive budget
submissions and reports with quarterly analysis for the service
activities in the career development area which is revenue
generating. She said that work is different then the preparation
of line budgets for the College and requires forecasting with
statistic analysis and report writing, in addition to the regular
operation requirements. There is a $3.5 million budget for the
department including the cost of operations and including salaries
and the wages for trainees involved at different lengths of time so
that the non-operational part of the budget is difficult.
Ms. McKay testified that no other department in the College
has the complexity with the flow through of money as required in
relation to its provincial and federal funding sources and the user
programs. They develop proposals for funding which is distributed
by grants at the provincial and federal levels which must then be
administered which includes monitoring of the budgets. She said
this position is budget related and different than any of the other
positions in the College because of the volume of flow through
money and activitieS and is not equivalent to any other job in the
College. She supervises the Incumbent on whom she relies to
produce the required facts for the budget and administration and to
make recommendations on the use of the money available and
therefore the essential quality for this job is experience in
forecasting budget preparation, statistical reporting, analysis
with computer skills as they prepare their own spreadsheets on the
computer which must be designed to cover the different funding
request.
Ms. McKay said there were four applications from the
bargaining unit for this position, one withdrew and three of the
applicants, including the Grievor were interviewed for the job.
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When she screened the applications, she was looking for work
experience and education in budgets and reviewed the covering
letters and resumes of the applicants. On that basis she said the
Grievor and the other two applicants did not meet the requirements
of the job but other information not on their resumes was obtained
through the interviews which gave the applicants an opportunity to
express themselves to the Committee with regard to their employment
history and practical experience. Each member of the Selection
Committee rated the applicants separately and her score sheet for
the Grievor was less than 50 per cent of the possible total. She
said it was a unanimous decision of the Committee that the Grievor
did not meet the qualifications for the position.
Standard questions were created in advance by the Committee
Members and were asked of all the applicants to learn what research
they had done for the job, someexamples of their work because the
job is budget related, their experience, examples relating to
budgets, their career goals, the development of statistical
information, experience on computers including software, the
support required as it is a relatively autonomous position. The
Committee assessed the applicants' responses to those questions in
their interviews, each of which was 45 minutes.
The Grievor was not a graduate of a three-year Community
College Business Program or equivalent but told them she was taking
Sociology. The Grievor did not have three years practical
experience at the College as she had not done the budget-related
activities which they were looking for and while she had practical
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experience, it was not transferable. The Grievor did not indicate
to them that she had used MAC or had prepared spreadsheets and in
that area had indicated she would need support. The Grievor told
them that 30 per cent of her job was involved with'operational
budget-related duties but there was no indication that she had done
forecasting other than on the operational side. At her interview,
the Grievor did not indicate experience in analyzing statistical
information nor had she done financial reporting. She was looking
for an applicant who could deal with all of the staff with instant
responses to students and others. She said the Grievor was not
focused on the questions at the interview but rambled and had to be
redirected to the subject of the questions and did not think that
she communicated well as to her abilities. The Grievor's
certificates of training and other documents were not presented to
the Committee at her interview. The Grievor clearly indicated to
them that her goal was to become a Counsellor which requires
entirely different skills and ability then in this job. The
Committee unanimously concluded that none of the three internal
applicants met the minimum qualifications for the position. Ms.
McKay said that she has been a member of many Selection Committees
and does score low on the ratings as she has different expectations
of the candidates than others on such Committees.
After the internal candidates were rejected, they interviewed
the Incumbent who was an external candidate was asked the same
questions as the other candidates. She achieved acceptable ratings
on the scoring sheets of each of the Committee members. The
Incumbent has an M.A. degree with three years of practical
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experience and had performed the duties of this job for a year
prior to which she had worked with employers on budget-related
duties including budget preparation and monitoring. The Committee
unanimously found that she met the requirements of the job which
she currently holds. At the time of the interviews of the internal
candidates, Ms. McKay was not sure that she was aware that the
Incumbent had applied for the job as all applications are sent to
Human Resources but agreed that she might have been told by the
Incumbent before the interviews that she had applied for the job
but could not recall if and when that occurred. She was happy with
the work of the Incumbent who was aware of her right to apply as an
external candidate for the job by the posting process. The
Incumbent's application was the only one of the external candidates
which was sent to the Committee her and no external advertising was
done for this job.
The Committee followed the process of first interviewing the
internal candidates and when none were qualified an external
candidate who met the minimum qualifications was interviewed
without further costly advertising. She said the Incumbent is an
excellent worker and is an asset in this or any other department in
the College and has the skills in the accounting area at a higher
level. The Incumbent had proved in her interview that not only she
had the skills but was overqualified for the position and at some
point, she thought she could become a comptroller.
Ms. McKay did not assume that the Grievor's work with a dean
of a division would be at a higher level than this position and
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made her assessment on the Grievor's resume and interview but did
not know what her work was in that position but did not think that
the Grievor could deal with the external funding groups. The
Selection Committee did not deal with performance appraisals unless
the applicants brought them to their interview which the Grievor
had not done. Nor had they contacted the candidates before their
interviews to advise of what was required nor would the Committee
look at the personal file of a candidate which is confidential and
kept in the Human Resources Department. It is the applicant's
responsibility to bring the applicable information to the
interview. She said the Grievor's present job is different from
the posted job because of the budget requirements and the Grievor's
experience in budgets was not enough to meet the minimum
requirements of the posted position.
Alison Critchley is the Manager of Employment and Career
Services in which she is responsible for all recruitment and hiring
of full and part-time staff with about 300 job competitions each
year. She received the request to fill the classification of SSOB
in replacing Nancy Nickle in the Access/Career Development
Division. The Employer's policy is to screen both the internal and
external applicants who will be evaluated by a Selection Committee
to select "the most appropriate candidate" in accordance with the
policy of the College. The manager involved chooses the members of
the Selection Committee and she was appointed as a member of the
Committee to select a candidate for this position. Three internal
applicants were considered before any other applications. The
Selection Committee was not advised of any external applications.
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Prior to the interviews, she paper screens the internal candidates
of what has then been submitted in support of their applications.
Based on that process, they did not feel that any of the applicants
met the minimum requirements but interviewed all of th~m to obtain
information based on the questions which the Committee developed
prior to the interviews for their evaluation of the candidates. On
the rating scale, the members were told that a score of 3 would
represent meeting the minimum posted requirement. They considered
the written material presented by the candidates and any
information which they added in the interview process which took 45
minutes. She concluded that the Grievor did not meet the minimum
posted requirements of this position which the majority of the
duties involved budget-related experience relating to a complex
budget system requiring forecasting and analytical skills. The
Grievor was not performing the kinds of budgeting which would be
required in this job. She was aware of the Grievor's activity in
completing her M.B.A. studies in which she had taken management
courses but none dealt with budgets and accounting. She felt the
Grievor's communication Skills were below average based on her
responses to the questions at the interview and although
recognizing that she may have been nervous, they had spent some
time probing her actual work experience.
At the conclusion of the interviews, the Selection Committee
met and discussed the candidates and the scores given to them by
the Committee Members who unanimously decided that the Grievor did
not meet the minimum requirements of the job with which the Union
representative on the Committee agreed. The Grievor did not
provide a position description for her previous jobs in which she
had claimed experience in budgets and did not provide samples for
her work or her certificates and other documents. The Committee
did not have access to her personal file unless 'the Grievor
provides the information and a current performance appraisal was
not available. Ms. Critchley called the Grievor on September 8th
to notify her that she was not successful in her application which
was confirmed in writing. The incumbent was subsequently
interviewed by the same Committee and was asked the same questions
and found to have met the minimum requirements of the position to
which she was appointed.
It is the submission of the Union that the Selection Committee
followed the College policy to select the most appropriate
candidate for the position and did not apply the required test
under Article 17.1.1 but preferred the external applicant to obtain
the best candidate they wanted. The Grievor however, was qualified
in relation to the requirements of the position but the Committee
had targeted the incumbent who was then working in the position and
knew at the time of the interviews of the internaLapplicants, that
she had applied for the position. Further, the Employer should
have taken into account the 60-day trial period in Article 17.1.2
which allows time for a candidate to familiarize herself with the
job requirements which opportunity should be given to a candidate
with seniority to resolve any doubts about her qualifications. The
Committee thereby disregarded a benefit available to the Grievor
under the collective agreement.
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In its submission, the evidence establishes that the Grievor
has the qualifications and experience to perform the SSOB position
to which she applied as she performed the duties of an
Administrative Assistant to a Dean and could do th~ same for a
Chair of a department. She established that her present job
involves 30 per cent budgeting duties and in the discussions of the
functions of the vacant position indicated that she had knowledge
and competence at least equal to the Incumbent. The scoring in her
interview was selective and not based on an objective test and
noted that the Grievor had related experience in her past
employment with the Employer yet she was ranked below average by
the Committee members. The Grievor's employment record indicates
that her communication skills are one of her strengths yet she Was
marked below average as well as interpersonal skills by two of the
Committee members but that was rated excellent in her subsequent
performance evaluation which also indicated that budget monitoring
as part of her position was one of her strengths. Ms. McKay was
familiar with the work of the Incumbent as she worked for her but
the Committee did not have the Grievor's performance appraisals
which was a disadvantage to her. Nonetheless, it is the Union's
position that the Grievor demonstrated her ability in relation to
the requirements of the position which she should have obtained.
There is no competition for the job between the Incumbent and the
Grievor who established that she had the ability to do the job so
that the onus is on the Employer to show why the job was not
awarded to her.
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In its submission, the Committee failed to take into account
the objective record of the Grievor's competency and employment
experience developed at the College and there was no balancing by
the Committee between their objective assessments at the interview
and the available information of her job performance. The Grievor
was the only internal candidate to contest the College's decision
and as she has established her qualifications for the job it should
be awarded to her. Reference was made to the following awards:
Re Consumers Glass'Company Limited and Aluminum, Brick and Glass
Workers, Local 269 (Shime - December 15, 1986); Re OPSEU and
Ministry of Health (W. Kaplan - December 5, 1990).
It is the submission for the Employer that the decision taken
by the Selection Committee was reasonable and correct, made in good
faith, without discrimination and in accordance with the terms of
the collective agreement in that the Grievor did not meet the
requirements of the Support Services Officer B position to which
she had applied. There was a competition amongst the internal
applicants and none of the three were found to have met the
necessary qualifications. Their applications and interviews were
dealt with before any external applications were considered. The
applicants provided a covering letter and their resumes with their
applications and have the responsibility to submit all the
necessary information to the Committee. Management has the right
to set the qualifications for the job which, in this case, is 95
per cent budget related with complexity dealing with different
programs and funding sources with significant repo~ting and
analysis requirements. In its submission, it is a uniquely complex
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position involving high-level budget functions standing alone in
that classification and therefore it was not improper to focus on
the candidate's budget experience. All three candidates were
interviewed, asked the same questions and given an opDortunity to
provide additional background information and they were assessed
that none met the requirements of the position. The evidence does
not establish that the choice of the Incumbent was pre-established
as the Incumbent's application was not dealt with until after the
assessments of the internal candidates.
It was submitted that the Grievor did not meet the onus on her
to establish that the College was in violation of the collective
agreement in denying her this position for which she did not meet
the minimum qualifications of the job posting. While there are
variations in the scores of the Committee members, there was
consistency in their scoring which resulted in an unanimous
decision in rejecting the Grievor's application. The Selection
Committee is not required to make an extensive background check of
all candidates for vacant positions but rather it is the
responsibility of the candidate to provide additional information
such as the certificates produced by the Grievor at the hearing.
The Grievor's present job is secretarial in nature which differs
form the posted position which has unique budget functions with
which the Grievor did not have experience other than with
operational budgets which forms only a small part of the work in
this position. There was no timely performance evaluation of the
Grievor available to the Committee. The determining factor in her
application was her lack of experience in the requirements of this
position. An applicant does not have the right under Article
17.1.2 to a training period of 60 days but rather that clause
provides a protection to the candidate if she could not
satisfactorily perform the requirements after being ~elected for
the job to return to her former classification.
It was further submitted that should the grievance be allowed,
as Article 17.1.1 contemplates a competition among internal
applicants and as there were three applicants for the posted
position, the matter should be referred back to the Employer as the
Grievor could not be awarded the job by the Board with reference to
the decision of the Court of Appeal in Re Falconbridqe Nickel Mines
Ltd. and United Steelworkers of America, 30 D.L.R(3d) 412.
Reference was also made in this submission to Re Alqonquin
College and Ontario Public Service EmDloyees Union (H.D. Brown -
June 30, 1991); Re CBC Broadcasting Corp. and National Association
of Broadcast Employees and Technicians, 26 L.A.C.(2d) 34 (O'Shea);
Re Canadian Food and Allied Workers Union, Local 175 v. Great
Atlantic and Pacific Company of ~anada Limited et al., 76 CLLC 332;
Re Hamilton Teachers' Credit Union Ltd. and Office & Professional
Employees' International Union, Local 343, 5 L.A.C.(4th) 62
(Verity); Re A.O. Smith Enterprises Ltd. and United Steelworkers,
Local 8773, 11 L.A.C.(4th) 126 (Hinnegan); Re Niagara College and
The Civil Service Association of Ontario (H.D. Brown - April 12,
1976); Re George Brown College and Ontario Public Service EmDlovees
Union (Bendel - May 24, 1994); Re Alqonquin College a~d Ontario
Public Service EmploYees Union (Swan - December 17, 1990).
- 22 -
The essential element which must be considered by the Board is
whether the Grievor established that she had the necessary
qualifications and experience in relation to the requirements of
the vacant position as set out in Article 17.1.1. Whfle there is
a competition amongst the internal candidates in this Article, the
position of the College was that none of them had the minimum
qualifications and were not thereby selected but only the Grievor
has disputed that decision. It is not however, a competition as
between the Grievor and the Incumbent who as an external candidate
could not be involved until after the Employer's determination of
the applications from the bargaining unit employees. On the
relevant issue therefore, it is the evidence of the Grievor which
must be assessed in relation to the terms of Article 17.1.1. The
Employer's position is that the Grievor did not satisfy those terms
in that she lacked budget experience which is the main importance
of the vacant position. With regard to the qualifications listed
on the posting, no issue was taken with regard to her education or
practical experience in relation to this job and that information
was provided in the Grievor's resume which also set out her
employment history and her most recent position as Administrative
Assistant to the Dean, Health Sciences which information was
available to the Selection Committee. In her covering letter with
her application and resume, the Grievor indicated:
"...In this capacity, I have gained a lot of experience
in various areas of research, planning, interviewing,
implementing, budget preparation and budget
monitoring...', -
In the Grievor's position description which was prepared in 1993
but which indicates the duties which the Grievor testified she had
been performing at the time of this application, that for
approximately 15 per cent of the time the job involves:
"Analyzes and monitors monthly financial reports which
involves interpreting complex financial data. Gives
recommendations for corrective action. Assists with the
preparation and administration of the Divisional budget.
This involves full understanding of College budget
process and established guidelines to follow...
Verifies applicant/enrolment information for audit
purposes. Accesses to students information (Eden System)
for special project analysis...
Compiles data and prepares reports under the direction of
the Dean...
Ensure accuracy of information in which follow-up is
required.
Organizes, designs & Layout Divisional Newsletters,
reports, charts, survey."
The Grievor's evidence is that 30 per cent of her time at her
present job involves budget-related activities. The Grievor's
covering letter dated July 28th, 1992 to Ms. Critchley refers in a
general way to those duties and thereby alerted the Selection
Committee that she did have budget-related experience which could
have been objectively tested during the interview process. Those
duties which were being performed by the Grievor at the time of her
application for this job relates specifically to the qualifications
set out in the posting and would on their face, we find, meet the
minimum demands of that job in her present position providing
administrative Services to the Dean of a division, her duties to a
large extent reflect the duties of the posted position. On the
- 24 -
comparison of the posting requirements and the Grievor's
application, it could not be reasonably determined that she did not
have budget-related experience and was therefore not qualified. In
addition, her evidence concerning the specific duties in the
position description for the vacant position has satisfied the
specific duties and responsibilities related in that description
other than with petty cash. When the Grievor worked in the
Industrial Training Division, she had exposure to the budget for
the Career Development Programs which she assisted the Chair in
Administration of the Budget for the Department which she would
prepare and send to the Dean. She said her duties in the Health
Sciences Division on Budget Responsibilities have become more
complex and she works with minimal supervision. In her interview,
she said the budget component was stressed and she advised the
Committee of her then present involvement of up to 30 per cent on
budget-related activities and that it was a vital area of her job
which includes financial analysis and explained at her interview
that she had worked with budgets and referred to monitoring
expenditures as part of that job, the statistical analysis which
she compiles for the Dean.
We find on the basis of this evidence that the Grievor
established that she had qualifications and experience in relation
to the requirements of the Support Services Officer B position to
which she applied and on that basis had a reasonable claim for the
job. The Employer's explanation for their rejection of the
Grievor's application related specifically to the assessments by
the Selection Committee at the Grievor's interview in which she was
- 25 -
scored below average on budget experience and with three of the
Committee members on communication skills and relevant experience.
Ms. McKay scored the lowest of the Committee members and admitted
that she generally does score low in these processes'however her
comment does not apply in the scoring for the Incumbent in which
her score is at the top of the Selection Committee which indicates
some inconsistency in her view of the values accorded to
applicants. That method of scoring used by Ms. McKay and others on
the Selection Committee may result from the subjective values given
to the candidates' reactions at the interviews without the
objectivity of performance reviews and supervisory input. It may
well be difficult to make a detailed background search of every
applicant for a vacant position in view of the numbers of such
incidents in the College but in the present case, having regard to
the level of the position in dispute and the Grievor's position at
the time of her application, it would have been quite reasonable to
have called the Dean of Health Sciences to obtain an overview of
the Grievor's job and her particular responsibilities and
qualifications for it yet the scoring of the Grievor in the
evidence of the witnesses for the College reflected only their
subjective values of her interview. The Committee did not in our
opinion, review on an objective basis, the Grievor's present
responsibilities and duties in relation to the requirements of the
vacant position as required under Article 17.1.1.
We find that the Selection Committee was not biased or had
acted in bad faith but that the Committee members did no~ consider
all of the factors relevant to the Grievor's qualifications for the
vacant position as required under the terms of the collective
agreement and therefore failed to follow that contractual direction
in applying the College policy. The collective agreement does not
refer to the selection of a suitable applicant but to the
assessment of the candidates based on the qualifications,
experience and seniority for the requirements of the vacant
position. We find the Selection Committee in this case did not
apply those terms with regard to the Griever's application for the
vacant position and therefore, the selection process was flawed.
Reference to the requirement of a Selection Committee to deal with
objective criteria of candidates was made in the Kaplan award in
which it was found that the Employer did not have significant
information as to their skills, abilities and knowledge and:
"relied too heavily on the interview results. The
authorities are extremely clear that the Employer must
not rely solely on interviews and job posting cases. At
the very least, the Employer must also conduct reference
checks of all candidates with immediate supervisors and
review all applicant's personnel files."
The Selection Committee reviewed the Covering Letter and
Resume of the applicants and assessed the Griever on the basis of
the interview and did not go farther although the Griever has been
employed by the College since 1983 and at the time of the
application was occupying a position of responsibility at a Dean's
level. Upon its face, such application required more than the
appearance of a cursory investigation of the Griever ' s
qualifications for the job to which she applied. Having regard to
ne evidence, we find that the Selection Committee exaggerated the
complexity, of the budget process in the posted position and did not
consider the Grievor's ability and experience in a good portion of
the budget requirements in this job including her experience in
dealing with career development programs and applicable budgets.
While the Grievor is not entitled to a 60-day trial period under
17.1.2 in order to qualify for the posted position, the Selection
Committee could take into account that where the Grievor in fact as
we have found, met at least the minimal qualifications for the
posted position, if selected was subject to a review within 60
calendar days from her assignment and could have been returned to
her present position had she not been found satisfactory. That is
a protection not only to the applicant but to the College which can
make the determination within that time whether the applicant is
satisfactory and meets the requirements of the position.
We find that the Employer's explanation for its rejection of
the Grievor's application is not properly based on the criteria of
the collective agreement and therefore cannot stand. With
reference to the test set out at page 9 of the Swan award whereby
it has been concluded that the Employer did not properly consider
the Grievor's qualifications for the posted position and contrary
to the finding in the Bendel award, the Selection Committee did not
have a:
"substantial and reliable volume of information from
which they could make a judgment about the candidates
qualifications and experience."
- 28 -
The Grievor provided her resume with a covering letter which
indicated her experience and qualifications to meet the
requirements of the posted position and did give further
explanation of her ability and experience at her i~terview and
while a personnel file may not be available to the Selection
Committee, there was objective information available to it through
the Grievor's application and her references as well as her
responses at the interview to apply the appropriate criteria under
the terms of the collective agreement which we find it failed to
do. That conclusion is reflected in the inconsistencies in the
scoring of the members of the Selection Committee with reqard to
the Grievor's application. While the interview lasted 45 minutes,
it appeared on the evidence to be a perfunctory investigation by
the Committee of the Grievor's abilities and qualifications and her
admitted nervousness at the interview should not have had an
adverse effect as was indicated.
For all of these reasons, we find that the Union established
that the College did not comply with the terms of Article 17.1.1 in
the selection of candidates to fill the Support Services Officer B
position as posted. As however, there were three internal
candidates for the posting who were involved in the competition,
pursuant to Article 17.1.1 and in accordance witk the direction in
the Falconbrid~e case (supra), the Board must refer back to the
Employer the matter of filling this position which shall be in
accordance with the terms of Article 17.1.1 having re~ard to the
findings of the Board as to the criteria to be use~ in the
assessment of the candidates for the vacant position. We therefore
direct the Employer to reconsider the application of the Grievor
for the posted position of Support Services Officer B.
The Board retains jurisdiction as to the application and
implementation of this award and any issue arising as to remedy to
the Grievor as a result of this award.
DATED AT OAKVILLE THIS ~o DAY OF SEPTEMBER, 1995.
HOWARD D. BROWN, CHAIRMAN
DAVID W. GUPTILL, EMPLOYER NOMINEE
SHERRIL MURRAY, UNION NOMINEE
09/27/95 WED 13:19 FAX 905 738 7092 LIFARGE CONSTRUCT ~AT ~002
George Brown College
and
Ontario Public Service Employees Union
Brenda Yip Grievance
Dissent of the Employer Nominee
I have reviewed the decision of my colleagues and with respect must dissent from the decision of
the majority.
The majority have based their decision on a finding that the Grievor established that she had the
qualifications and experience in relation to the requirements of the posted position. I would ague
that this conclusion is flawed in two aspects. Firstly, I believe that the majority has second
guessed a duly constituted Selection Committee (who conducted a selection process with
admirable rigor) and substituted the Board's for that of the Selection Committee. Secondly, I
believe that the majority have erred in placing a undue investigative onus on the employer during
the selection process.
On the first issue, that of second guessing the Selection Committee I believe the majority has
reached several conclusions which were not supported by the evidence. During the hearing it was
the undisputed evidence that the position required a high level of skill in the preparation and
managing of budgets. It was also the evidence of Ms Joan McKay, an experienced Academic
Administrator, that the financial systems of the department were much more complex than normal
divisional line budgets at the college. This was due to the fact that her budgets involved both
expense and income projections as well as statistical reporting and analysis. More importantly,
these budgets were prepared and submitted directly to external funding agencies with no further
checking by more senior college officials.
It was the Cn-ievor's evidence that 30 per cern of her current duties involve budget. ~urther it was
her evidence that most of that time is spent monitoring budget expenditures against a pre-
" 09/2?/95 WED 13:19 FAX 905 738 7092 L~FARGE CONSTRUCT )LAT ~003
approved budget printout, in fact a checking process, not budgeting. It was also her evidence that
during the annual budgeting process her job is to gather the input and analysis from the
department Chairs and assemble the material for submission to the Dean who would then submit
the proposed budget to other levels of college administrators for further review. At no time in her
evidence did the grievor suggest that she personally was involved in the critical process of
analyzing and translating program activity to financial statements. Nor did she do the type of
detailed analysis required by external funding agencies. None of her work involved the type of
analysis required to produce income projections; all critical activities for the position in question.
It was clear from the evidence that although the Grievor performed a critical function for the
Dean it was more of an administrator who was responsible for monitoring expenditures and
assembling of budget material rather than an analyzer and developer of budgets as required for
the position in question.
Four members of the college commurfity, including a representative of the Cn-ievor's bargaining
agent, all of whom know the college and it's processes better than this Board, unanimously agreed
that the Grievor did not possess the specific sldll sets required for tiffs position. This was not
some offthe top of the head subjective shot in the dark, but was an educated opinion arrived at
through the use of a sophisticated and objective criteria referenced selection instrument. The
majority have stated in their award "we find that the Selectiort Committee exaggerated the
complexity of the budget process in the posted posttion and did not consider the Grievor's
ability and experience in ct good portion of the budget requirements' in this job .... "I believe the
Selection Committee did in fact accurately assess the qualifications. On the other hand I believe
that my colleagues on the Board have made the mistake of assuming that the 30 per cent of the
Cn'ievor's time spent in budget related activities in the academic division would have prepared her
for the posted position and have therefore substituted their judgement for that of the Selection
Committee.
My final argument is with regard to the Board placing an undue investigative onus on the
employer. We heard in Ms Critchley's evidence that she has responsibility for roughly 300 job
competitions a year. In this competition alone there were four internal candidates who applied for