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Home My WebLink About1988-1250.Rankin.89-07-18 ONTARIO EMP£OY~'S DE LA COURONNE. .. CROWN EMPLOYEES DE L'ONTA RIO ' GRIEVANCE C,OMMISSION DE SE - LEMENT REGLEMENT BOARD : DES GRIEFS 180 DUNDAS .STREET WEST, TORONTO, ONTARIO. M~G 1ZS - SuITE 2100 TELEPHONE/T~:I..~-pHONE (41 ~) 598 - 0688 laO, RUE DUNDAS OUE$ T, TORONTO, (ONTARIO) MSG 1Z8 -, BUREAU 21~. _ . ': ! . . , 1250/88 ~ IN. THE HATTER OF AN ARBITRATION Onde r THE CROWN E]~PLOYEES COLLECTIVE BARGAINING ACT Before TBE-GRTEVANCE sETTLEHENT BOARD Be tween: " ~ OPSEU (Rankin) ... · -' ' ' t....[ .... ' '~ " ' '- Grievor · -'~ :" --.*and - = -- - The' Crown in. Right~6f Ontario (Ministry of Correctional Services:) ' ply .... . -.'-' ~ Em o er Sefore: .... D.*H'. Kates' -'-' '- Vice-Chairperson J. D. · McManus - Member ~ H:. R0ber.ts *' < - - . Member. -~. , APPEARING FOR R~P. Ste'~h~nsOn .... - ~' ~' THE GRIEVOR: Counsel "' "'"~o~l fn§," StY'a~t'hY'' & 'Hende.rson ....... ,-' Barristers & Solicitors 'L" dyk : APPEARING FOR .' Ou - - ~- ~-.' :~: THE EI~PLOYER= Staff. Relations Officer -' Ministry' of ~-Corre'ctio~al Services ~.:' ' '' ' - -- ' .' --. 3. . . · ' ~ : ~' .-. ~, -~ ~ . . BEARING' Ap=il 11, 1989 ',.... ... ; ~, :.: , ~-.,. ~-. .:-~ ~.. . . · ~..' Decision The grievor challenges in this grievance the fairness and the propriety of the selection procedures adopted by the employer in the competition for the position of Correctional Officer I (CO1} at the Vanier Centre for Women. As a result of the said deficiencies in the selection procedures the grievor alleges that Article 4 of the collective agreement was violated and that he should thereby be awarded the position.or~ . alternatively, that a new competition should be directed. Article 4.3 of the collective agreement reads 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.. ~. It is common ground that Article 4.3 represents a competition clause where the grievor must demonstrate that'his qualifications for the position were..at least equal to the other candidates before his seniority.gguld ~e considered as the deciding factor. It was conceded.by, the emPloFertat the outset of the proceedings that the g~iev°r was'qualified to perform all of the' duties and responsibilities outlined in the job description _~or the C01 positiOn:at the vanier Centr~-for Women. Moreover, he was the most senior applicant for that position. The e.ployer . intains ho ever su ce..f l' applicant, Ms. Sharon Roberts, was superior in qualification to the grievor. Of the six candidates who were selected as finalists for the competition, Ms~ Roberts scored the highest - 2 - mark (215/300 points) on the oral test admin~ste'red by the" selection board. Thb griever stood fourth i'n the ~ompetition /300 ." .' with a score of 159 pts Ms Roberts was'~m~l~yed as an "unclassified" (ie., .casual) correctional officer at the Vanier Centre for Women ~ the time ~f ~he'competi~ion.~ She was given · notice of these proceedings and elected n~t'~o appear. It is also common ground that the griever ~t the' time of the competition was c~assified " as a ~orre~tional Officer II (C02) at the Toronto West'Detention Centre. 'Selectlon"t~ the' c0I position at vanier represented for'him a'lateraI'transfer' without loss of p~y even though the'post;d PoSi~ion'was advertised at the-iower Cci. rate. ~r. Rankin"~ffered'the'~card several reasons personal to him as to why he p~sfe~red the transfer to Vanier. ~r. Ran14in has accumulated approximately eleven years service as a-correctional of'ficer. 'He has performed a~ ~ariety of duties and responsibilities as a correctional officer covering the wide. spectrum of duties Outlined in'the ~'job description. ~e has ~1~o performed'sup&~visory'c~rrectional officer's duties oh an'acting basis at the CO3 'level. Sore significantly for a t~o year period he has sat£~f~torily discharged the,duties~f Correctional officer ~,at.the ~aplehurst Correctional Facility ~hich is a correctional institution similar in nature to the Vanier Centre for Women. Indeed, it is accurate to 'state, as the employer indic~t~d,'that it was surprised that the griever, in light of his experience, performed so poorly on the oral test administered by the selection committee at his interview to the extent that an "unClassified'' employee outscored him by so wide a margin. A6eordingly, the evidence adduced~through the griever focussed upon the explanations that, were. offered that might. mitiga'te the adverse implications of his mediocre p~rformance during the selection committee's interview. In this regard, the information that was adduced through the griever was not challenged by the employer's representatives. Indeed, the employer elected not to call evidence with a view to contradicting or otherwise clarifying the information adduced by the griever.during his testimony. It suffices to.Say that the.' employer appeared, satisfied that the evidence that was adduced served the purpose of disposing of any allegation of unfairness or impropriety on the employer's'part during the selection .process. Accordingly, in order to appreciate where the parties joined issue it is necessary to deal with the job posting and other documents that preceded the selection board interview ' culminating in the griever's rejection. The job posting,.reads as follows: Applicants are-invited for the position of~ -'i. Correctional' Officer C.O.1 ClassifiCation: .r 'C6rrecti~onal' Officer. 1 .... (Underfill} Salary: $13.26 Schedule: ~ 4.7; 40 hours per week Location: Vanier Centre for Women Qualification Criteria: Ontario Grade 12. Ability to meet Ministry's medical and physical standard~. Good oral and written communication skills. Ability to recognize and react to, abnormal situations, behaviour, etc. Abi!ity to use judgement and tact in day-to-day activities. Good interpersonal skills and ability to work with a variety of people,.e.g., inmates, staff, volunteers. Satisfactory attendance will"aisc be a consideration. Res~onsibilities:~.to perform a full range of'duties related to the care, control,' supervision and custody of inmates~'or young offenders, on an..assigned shift, in a structured correctional setting. To perform other related duties. Successful applicants for this position may be assigned to the Young. Offender Unit occasionally at some point in time~ Note: Candidates may be required to complete awritten examination as part of the competition. process. Short listing, will be based on the criteria noted above and the.results of the examination. .. Qualified applicants are invited, to submit, a detail~ application/resume to be received at the Vanier Centre for Women not later than 4:30. p.m. September 30,.198,8J to: '-. The Superintendent .- Vanier Centre for Women P.O. Box.'llS0 Brampton, Ontario L6C'2M5 ' ' Note: Please indicate your consent in the coverin~ i~tter to allow your personnel file'to b~ accessed for' purposes of assessing your qualifications. Failure to 'include your consent.will-result in ~our qualificatio.ns being assessed on the basis of information contained in your Area of Search This competition is restricted to classified and unclassified staff within a 40 km radius of Vanier Centre for Women, who have · completed the testing requirements of the Central Recruitment Program for Correctional Officers. It is to be noted that the job posting advising o'f the competition makes express reference to the prospect that "candidates may be required to complete a written examination as part of the competition process". Moreover, short l~ting will be based in part on "the results of the examination''· For - 5 - purpoaes of clarity, the parties advised that "short listing" meant, in Ministry vernacular, that candidates might be eliminated without the benefit Of an interview based in part on the results of the written examination. We were also advised that no such written examination was administered and that the grievor succeeded in passing the "screening" phase of the- competition. ~e was amongst the six finalists who were invited to the selection board interview. We would also note that there is another reference in the job posting to "testing requirements under the Area of Search. The employer advised'that the grievor bad. in fact-successfully "completed the testing requirements of the Central Recruitment Pro,ram for Correctional Officers". Accordin~ly~,that particular reference in the Sob posting was not a, consideration used to the Erievor's prejudice in determining the outcome of the selection process. " . .In ~esponse to the grievor's.~pPlication,for_the CO1 ,i position the employer sent him (as well as the'other candidates) a form letter dated October 5, 1988 acknowledging'his interest in the position, Of some relevance to the instant disput'e is the empLOyer's reference in.that letter to the notion, that "...those candidates whose experience and qualifications are considered to most closely meet the requirements of the position will be invited to attend, a personal interview". From the. grievor's perspective it~ is important~ to observe that there is contained in that document no reference to the a~inistration by a selection board'of either a written or oral test durin~ the interview. Because of the emphasis the parties placed on this letter during the course of argument, it is appropriate that the ~ocument be set out in its entirety: Dear Mr. Rankin: Re: Competition #CI-2127-88 Correctional Officer 1 Vanier Centre for Women _ This will acknowledge reqeipt of your application/resume for the above-noted competition. The personal information contained in your application/resume is collected under the authority of the Public Service Act, S.4(c), S06(1) and S.24 and will be used'to assess your qualifications. Those candidates whose experience and qualifications are considered to most closely meet the requirements of the position will be invited to attend a personal interview. We expect to have made these Contacts by Monday, October.17,.19$$. If we do not contact you further, I would like.to take this opportunity to thank you for your interest and to encourage you to continue to apply.for-positions within our Ministry that you are both interested in and eligible for.' Please contact me'if you ha~e any questions gbdut the .competition or the. collection of'.information. Yours.truly, -~ r , . "D.M. Otver" .A Senior Assistant Superintendent '(A) And as hitherto indicated the grievor su~ceSsfully'~as~d "the screening" procedure without 'the requirement'to undergo a written examination. He was thereby invited t° Va personal interview" as indicated in the following le~ter'da%~ ~otob~r Dear Mr. Ranki~: ~ Re:' Competition #CI-2127-88 Correctional Officer 1 Vanier Centre for Women .. Wi~h. reference to the above-noted competition, this will confirm your interview appointment as follows: Place: Vanier Centre for Women Administrative Boardroom Date: Wednesday, October 19, 1988 Time: 09:45 hours We look forward to meeting with you. Yours truly, "D.M. Olver" Senior Assistant'Supt.(A} The grievor attended the interview as scheduled and faced a Selection Board comprised of three employer representatives. It is' cdmmOn ground that the grievor performed poorly in answering questions relating to the "knowledge" component of "the oral test" administered to him by the-Selection Board. The parties agreed that the questions posed by the Selection. Board were "~easonable" in the sense that they were.relevant to 'the discharge of the duties and responsibilities'of the CO1 position at Vanier. Moreover, th~ parties also indicated their consensus that the reasons why the grievor's'performanoe appeared so mediocre with respect to the knowledge component of the test (whereas he received top marks for "education" and "experience") was because he had not-prepared himself in advance of the interview. Accordingly, the balance of this decision will deal with.~he parties' respective explanations as to why the grievor indeed was not prepared. The relevant portion of the job description that' outlines the knowledge component of the position reads as follows: .... Knowlede of relevant legislation, rules, etc., security techniques and equipment; and first· aid. Ability to react 'to recognize and react to abnormal situations, behaviour... The grievor'indica[ed that in t981 he was transferred - 8 - laterally from the Maplehurst Correctional Institute t°. his current position at th~ Toronto West Det6ntion Centre without the necessity of undergoing an "oral" selection board test, He was'required to undergo "a personal interview"'with a member of management who asked him several questions of a general and perfunctory nature relating to the reasons why he wished, the lateral transfer. It was obvious to him, in light of the employer's invitation to a{tend ".a.person~l' interview", that he would undergo a like interview with respect to the instant competition. ~oreover, ~r]' ~ankin indicated [hat in the recent past he h~s applied for two supervisory positions '(representing promotions) where he indeed had been subjected to both a"W~itten and oral test du=ing t~e course of a sele6ti.on prodess. In those instances he emphasized that the job p~sti~g expressly Provided that the candidates would have ko Undergo an oral(an~ written test. Indeed, in those cases he 'had prepared, f~r ~he tes{s and,' in his view, Performed well (although he °bvi~u~ly was not the successful candidate). .In the instant competition the grievor reiterated that had the job posting alerted him to %he requirement that an oral test would be ~dministere~ he would 'have "s arpene " hims"lf up prior to sele6t{on' oard interview. But, because he was advise~ that he would Simply be invited to attend "a.personal interview" he was of'the opinion that the interview process would be of a similar nature as he had previously experienced. The employer elected to call no evidence. Accordingly, the employer did not attempt to contradict the grievor's assertion that management's practice has been to expressly indicate in the job posting whether elegibile candidates would be required to undergo an oral and/or written examination in order to qualify. Indeed, the instant job posting indicated that a written examination might be necessary in order to avoid being "short listed" (ie., eliminated from the competition without an interview). In other words, the grievor complained, having regard to hi~ previous experience, that both the job posting and the subsequent correspondence he received from the employer prior to the scheduling of his "personal interview" was clearly misleading with respect to the necessity that he prepare for an oral test. During the course of the grievor's cross-examination he admitted that he was unprepared for the oral test that was administered during the selection board interview. Moreover, he blamed his mediocre performance, namely his inability to answer in a satisfactory way questions put to him on the knowledge component, because of the unfair and misleading procedures adopted by the employer. The grievor further acknowledged that throughout the Ministry there commonly occurs "competitions" and posting procedures similar to the instant case where candidates are subjected to a selection board interview where questions 'are orally put to them in order to test their knowledge of the duties of the position. Mr. Rankin maintained however, that his understanding of those procedures suggested that where merely notice of "a personal interview" is to be conducted it is - 10 - usually a "one to one" discussion where c~ndidates are asked questions of a Personal nature about the reasons for the change. Because the employer elected to call no eVidence'in this .- case we were obviously not apprised of wh~ther any of the other five candidates who were invited for interviews were in a'like fashion misled by the employer's pre-interview selection' procedures. The clear issue in-this case is whether the selection procedures adopted'by'the employer were in fact tainted by the alleged misleading nature of the job posting and the other' documents that were sent to the candidates prior to their "personal interview". In other words, did the ~rievor hate reason, on objective ~rounds, for being misled as to th~ nature of the selection ~ard'interview and more particularly, Whether he would be subjected to an'oral test? In order to a~pre~iate th~ parties' Submissions it .is necessary to reiterate the background circumstance8 in which this grievance arose. The emPloYer has determined that: Mr. Rankin, a correctional officer with ten years ~f exemplary service, is perCeived in a demonstrative manner not to be equal in qualification for a position (that is lesser rated than the position he currently occupies) to a candidate who;is not even a classified employee. We have also been advised by'the ~mployer (as reflected in the "top" score he received under'the' experience component) that he is qualified to perform each of the duties and qualifications described in the position description. Yet, we are told that the reason he did not ' - 11 - succeed in' securing the. position is because he did not exhibit during the selection board interview sufficient knowledge (relative to the successful candidate) of the correctional officer's duties and responsibilities. Common sense would suggest that there must be some logical reason for the disparity between the reality of the grievor's admitted qualifications and his mediocre results as a result of the competition proceedings that were described to us. The employer suggested that there existed only one explanation as to why the grievor was not prepared for the oral test, And that is he took it for granted that because of his seniority and his experience he would automaticall~ be selected for the position. And, on what basis did the employer advance this hypothesis? Did it adduce evidence to suggest that any time during, the grievor's exemplary career with-the Ministry he acted in so casual and debonair a manner in his treatment of work-related matters? Was any member of the selection board called to substantiate by way of personal observation that the grievor treated the competition in a manner that would suggest ,his selection was..a foregone conclusion? And, even if the employer's hypothesis is to be given credit was there any evidence adduced,that,_ indicated that the employer's.. ,representatives i~deed exhibited surprise in the grievor's performance thereby prompting them to question him for an exaplanation? In its submissions the employer argued that the term "interview" as used in the ~ob posting ought to have signalled to the grievor in'the context of a "formal" job competition that he ought to have anticipated he would Un~rg° an oral test b~ · the selection board where he would be tested on'his "k~owledge" of all facets of'the position. In support of that proposition the employer referred to the Oxford Dictionary whiCh indicates under the term interview "...the oral examination of (a) candidate for employment"~ And go, it'was submitted ~hat'the griev?r.haVing regard to the plain meaning of'the term "interview" ought ~o have been'forewarned or p~t on notice that the personal interview re~erred to in the invitation letter would entail an examination 6f his' kndWledg~ of, the duties and responsibilities-'of the position. "" Moreover, we were advised that ~hould %he Board rule otherwise we Would be'upsetting 'th~ in[eg~i6y of Uthe selection ..procedures adopted'by the Ministry in orde~ to ensure all employees a'fair and equal oppor%unity'for~sele~Zion. The grievor readil~'S~mitts~ that h~'in 18rge part did take the interview process for granted. 'H~ ihdicated for reasons that obviousl~ differe~ fr~m-'the employer's, that .a personal interview" as he understood th6 term, p~ticuiarfy wi'th respect to a lateral transfer, was By its nature a perfunctory exercise. And'-in that lig~[ the question that 'cSt (he~efore be answered is whether the employer"s· job posting'and the ot~er relevant documents that preceded the personal intervi~'would lend credit to the grieV°r's understanding. The first concern about the job posting notice that appears obvious is that its contents suggest that only a written examination may b~ required of the applicants for the particular purpose of eliminating those whose qualifications are not considered "to most closely meet the qualifications of the position". Indeed, when the grievor was not called upon.to write an examination but was in fact invited to a personal interview he was clearly entitled to assume insofar as the employer's documents are concerned that no further ~examination would be expected of him, The .employer conceded that the grievor had already satisfied the second requirement for testing set out in the job posting in that he had hitherto "completed the testing requirements of the Central Recruitment Program for Correctional Officers". Accordingly, what other indication was ~here contained in the job posting that ought to have alerted him to the prospect of additional "testing" of his knowledge during the course of his personal interview with the selection board? This much is certain. Both parties agreed that in order for a candidate to perform well in answering the otherwise reasonable questions~ put to them by the selection board in testing their knowledge, they had to prepare. Or, in Mr. Rankin's words, they would have had to "sharpen up" their knowledge prior to the interview. It certainly would have assisted this Board in the determination of the "reasonableness" of the posting procedure adopted in this competition %o have learned whether other candidates shared the same difficulty as the grievor. We do know that the successful candidate, Ms. Roberts, performed well. But she was already employed at the Vanier Centre and had access to "classified" information, pertaining to that institution which the other candidates would not have seen. indeed, it would have been of'some assistance to this Board to have heard more. evidence relating to the employer's practice with respect to its posting procedures. Had we had that confirmatory evidence'we might have been in a position to test the' soundness o~ employer's assertion that the terTM "Persona! interview" as used in the instant job posting or the letters of invitation to the "interview"should have sufficed in order to place a candidate on notice that he or she would have to undergo an oral' test. Or, more significantly, we are simply compelled, in light of the employer's decision not to call contradictory evidence~ to credit the grie~or~s understanding that the employer's practice is to expressly alert the candidates of the requirement to undergo an. oral or written test before the personal, inter~iew. In'summary, we are of the opinion that in.ha%lng regard to the limited nature of evidence before us, the only explanation as to why the grievor would not have been prepared for the oral test is because he misunderstood the nature of the personal interview he would have to undergo. And, quite candidl~ we are prepared. tb give the grievor the benefit of the doubt insofar as he has alleged that the reason for his misunderstanding was directly attributable to the deficiencies of information contained in the employer's preinterview documents, Those documents in-.our View might reasonably tend to suggest that once a candidate~passed the screening procedure, he or she would be subjected to no further examination for which preparation and study would ~e obligatory. And this impression would surely be a reasonable conclusion for a candidate called to an interview to reach. --OtheTwise, why indeed would they not have been subjected to "a written examination" prior to interview as otherwise indicated in the posting document? In other words, we are satisfied that the gap between the reality of the grievor's obvious .credentials for the position and his mediocre performance during the selection board- interview must be attributed to the shortcomings (ie., the unfairness) of the employer's posting procedures. Accordingly because we are concerned that not only the grievor but other candidates as well would have been similarly misled by the employer's posting andI pre-interview documents we direct that a new job competition be arranged for the sa~e position. We' shall remain seized of the. Boamd~s direction. Dated this 18th day of July, 1989' · Dav'id H. gates ~ .. ,,. !.? H. Rohorts, Me.bev ' 1250/88 OPSEU (Rankin) - Ministry of correctional Services It is logical 'to assume, and indeed the employer has accepted, 'that a person with the length 'of experience the grievor \ has had as a CO2 and acting c03, should be capable of.filling the CO1 position which was posted. On this premise alone t am prepared to concur in the Board ruling calling fo~'a r~~run of the competition. However, I am not fully convinced that the grievor was so much "misled" in his expectations of the competition procedure as that he just "misjudged" the situation as it applied to him, in the belief that his'seniority would make the~interview basically a formality. ~ 'He has taken part in promotional competitions in the past enough times to realize that an oral test during the final interview is an inherent Part of the selection procedure. When he fell below the'standard in the knowledge section of the ~interview. for the position in question, the employer, having regard for the integrity of its selection process and in fairness to the ·other candidates, who presumably must have received the same information regarding the competitio~ as did the grievor, had no option but to award the position to the candidate who produced the overall highest mark. ~ If the grievor had relied on his knowledge of past competition i~t~rviews. (not earlier lateral transfer interviews} he would have prepared himself as he should have and this g~ievance would not been necessary.- In future job postings leading to competition for a position, it is t~ be hoped that the requirements pertaining to the selection pro~edure to be used wil.1 be most explicit as to the nature of the interviews and tests, oral or written, that wil. 1 apply to each candidate. Roberts, Member