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HomeMy WebLinkAbout1989-0226.Desi & Bousquet.89-10-16 · 'i"' ~.~ ~ ~ ~" "" ONTARIO EMPLOY~SDELA COURONNE ' "* ',~- ~ CROWNEMPLOYEE$ DEL'ONTARtO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 150 DUNDAS STREET WEST, TORONTO, ONTARIO, MSG 1Z8- SUITE 2;00 TELEPHONE/T~LFcPHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8 - t~UREAU 2100 (416) 598-0688 226/89, 227/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE B/%RGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Desi/Bousquet) Grievor - and - The Crown in Right of Ontario (Ministry of Natural Resources) Employer Before: E.K. Slone Vice-Chairperson M. Vorster Member G. Milley Member For the Grievor: P. Lukasiewicz Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: S. Currie Staff Relations Officer Management Board of Cabinet Hearings: ~. August 24, 25, 1989 .,~ AWARD This is a job competition grievance. The unusual twist is that the competition grieved was a rerun arising out of earlier grievances by the same two grievors who were unsuccessful candidates in both the original and the rerun competition. The successful candidate both times was Eugenia Perusini, who was present throughout the hearing representing her own interests. The grievances concerning the first competition came up for a hearing before this board on November 16, 1988. At that time the parties were able to agree on a disposition which was incorporated into an order of this Board. .Insofar as it is relevant to the grievances at hand, the operative parts of that order are as follows: "The parties agree to settle the grievances of Romeo Bousquet and Jeanette Desi on the following terms: ...(2) The original competition shall be re-run restricted to the two grievors and the incumbent, to be conducted as soon as possible. (3) The new interview panel shall not be composed of any of the members of the original panel, It shall be composed of three persons, two of whom shall be selected by the Employer from the following individuals if available: ...David Cope ...Jim Purves (and others) The third member of the panel shall be selected by the Employer and may be one of the 7 named individuals or another person as chosen by the Employer. (4) The interview questions shall not be designed so as to give an advantage to the incumbent as a result of her being in the position that is the subject matter of the competition, · ,.(6) Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification. (7) The various methods used to assess the candidates should address these relevant qualifications insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifications. (8) Irrelevant.factors should not be considered. (9) All the members of the selection committee should review the personnel files as at the date of the original competition. (i0) The applicants' supervisors should be asked for their evaluations of the applicants. (11) Information should be accumulated in systematic way concerning all the applicants ..... The issue before us is whether there were irregularities in the second competition that in line with the well established jurisprudence of this Board would vitiate the results of that competition. The job in question is that of Supervisor, Accounts Receivable in the Financial Resources Branch of the Ministry. Classification is Office Administration 10. The essential duties and qualifications, as stated in the posting, are as follows: Dutiesl Under the general direction of the Revenue Co- ordinator, Financial Resources Branch, Ministry of Natural Resources, you will: supervise a staff of two 4 engaged in the maintenance and control of accounts receivable systems for Mines Revenue, Crown Land Rentals, Timber Revenue and Sundry Accounts including Water Power Leases and the Algonquin Forest Authority. Also provides instructions and training to staff on accounting methods, procedures, systems and policies. Qualifications: - Demonstrated experience in communications; - thorough understanding of computer programmes coupled with a sound knowledge of accounting practices and reconciliation procedures; - good organizational skills; - ability to interpret and apply regulations under the Mining, Public Lands, Crown Timber, Forestry and the Woodland Improvement Act. TH~ CANDIDATE~ The three candidates are all experienced employees of the Ministry. There is very little to_distinguish them in terms of their seniority. The most senior is Romeo Bousquet, who joined the civil service in June 1970 and has been with the MNR all along. The next most senior is Jeanette Desi who joined the civil service in September 1971 with the Ministry of Health. She moved over to the MNR in 1977. The least senior is Eu~enia Perusini who joined the civil service in November 1974, with the MNR, where she has been ever since. Each of the three candidates has considerable relevant experience within the branch, including direct experience on some if not all of the systems that the Supervisor, Accounts 5 Receivable would be responsible for. It is not necessary to go through the three resumes in any detail. On paper, each of the three candidates would appear to have the necessary qualifications and experience. This probably explains why the two grievors feel as strongly as they do about having failed to win the competition. But, jobs are rarely awarded on paper qualifications only. TH~ COMPETITION The person chosen to round out the selection committee was Bert Riviere, a Senior Internal Auditor with the Internal Audit Services Branch of the Ministry. Mr. Riviere has never worked in the Financial Services Branch, but was evidently chosen for his overall familiarity with the accounts receivable area and ' experience with job competitions. Prior to the competition, he casually knew Mr. Bousquet and Ms. Perusini, but had never met Ms. Deal. Upon being asked to chair the panel along with Messrs. Cope and Purves, Mr. Riviere studied the Board Order establishing the criteria for the re-run. It was clearly essential that he do so, and he could hardly have'remained ignorant of the fact that Ms. Perusini had been the successful candidate the first time around. There was some suggestion that the panel ought not to have known the results of the first competition, in order not to be influenced thereb¥~ but this is simply not realistic under the prevailing circumstances. Had such a "blind" rerun been desired, the parties could have provided for same in their settlement in November 1988. Having studied the Board Order, Mr. Riviere then prepared a memorandum (Ex.4) for the otherm and for the file, fleshing out the specific directives contained in the order. A set of interview questions was then devised by Mr. Riviere with some input and feedback from the other panel members as well as from someone in the human resources area. A written test, with 30 minutes to complete same and 12 marks allotted therefor, was also prepared to be administered to the candidates. In accordance with good practice, the panel members established the appropriate marks to be awarded for each of the answers or skills being tested. Also, the interviewers agreed in advance what specifically each question was looking for, and what answers would be considered acceptable. Prior to the actual interviews, the pane~ members examined each of the candidates' applications and resumes, and thus became familiar with their experience and qualifications. The interviews were then conducted in a random order. Each question was asked of each candidate. The interviewers made no%es and assigned marks as they went along. The written assignment was administered and marked. At the conclusion of the interviews, the panel compared their notes and marks, and 7 averaged them out to arrive at a final score out of 100 for each candidate. As is often the case, there was some variation in the scores awarded by the different interviewers, but by and large the scores did not vary too much. The final averaged results looked like this: CATEGORY MARKS BOUSQUET PERUSINI DESI Supervisory ability 20 8 17 11 Communications 15 § 12 9 Computers 10 3 8 Accounting Practices and procedure 40 19 31 27 Organizational skills 10 4 10 Interpret/Apply Regulations 5 2 4 3 TOTALS 100~ 42~ 82~ 62% After all the scores were totalled.and compared, the personnel files were examined and the references supplied by each candidate were spoken to by Mr. Riviere. As he explained, the main purpose of speaking to the references after the interviews was to see if there was anything that these people said that would have cast some doubt on the validity of the scores. He would have been prepared to change the marks had something extraordinary been learned, but as it happened nothing earth shattering came out of the personnel files or the reference checks. Thus, the assigned scores were permitted to stand and the committee unanimously recommended that Ms. Perusini be 8 awarded the job. Although they did not say so in as many words, it is clear that the committee did not consider the candidates or any two of them to be relatively equal to one another, and thus the issue of seniority did not come up. THE ~BIEVORS' COMPLAINT~ The grievors' arguments can be categorized in the following way: 1. The committee placed too much weight on'the interviews and failed to assess the candidates fairly on their qualifications and experience. 2. There was a reasonable apprehension of bias, arising out o? the decision of Mr. Botterill, Revenue Coordinator, to send Ms. Perusini on an accounts receivable course during MNR Week in Sault Ste. Marie just a fe~ days prior to the re-run in March 1989. 3. Ms. Perusini was at an unfair advantage, having been Acting Supervisor, Accounts Receivable since December 1986, which assignment the union says was a violation of the Collective Agreement. We will deal with each of these complaints in order. 9 Too much wei~llt on the interviews: The union bases its argument on the decision of this Board in poole GSB #2§08/87 (Samuels). The following passages in particular are relied upon, at pp.2-4: " At the interviews, a series of questions were asked of each candidate to elicit information concerning the candidates qualifications and experience. And ~hen the candidates were scored on these answers, w~thout any regard to the information on ~he application forms, or information which might have been found in personnel files, or information from the applicants' supervisors at ~he Hospital. Apparently it is Ministry policy to base its decision entirely on the scores at the interview. If this is the Ministry's policy, then it is absolutely incomprehensible to us why it should be so. This job competition had to be done according to the collective agreement. Article 4.3 prpvides: 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. And this Board has explained in detail many times what is required to fulfil the requirements of Article 4.3 .... " There must be a full gathering of information concerning the qualifications and ability of the applicants. It is not satisfactory to consciously ignore information as was done here. For some reason, the grievor did not do well at the interview... and the three members of the panel were left with the impression that the successful applicant had better qualifications and experience than the grievor. But a look at their application forms would have confirmed that the grievor was a senior nurse with much experience in the very matter which was to be taught to the 800 staff members at the Hospital, while the successful candidate had just graduated from nursing school, and had no experience in this area. In our view, the decision of the panel was simply perverse 10 and this resul~d from its profoundly f~wed p~ocedure." The Poole case depends on a very unusu&l set of facts, where the selection committee figuratively blinded itself to the paper qualifications and experience of the applicants. That is not the case here. We accept the evidence of Mr. Riviere that the application forms and resumes were studied by all members of the committee prior to the interviews. Thus, the members were familiar with the qualifications and experience of the applicants, and this knowledge was a factor in their minds as they assessed the candidates. There was no obligation to mark the candidates on their applications or resumes. The obligation was to consider them, which we have found that the committee did. Surely, if either of the grievors had had far superior qualifications to the other two candidates, the committee would have factored that into their decision. The fact is, however, that neither of the grievors on paper has qualifications that are superior to the incumbent. Indeed, it is fair to say that Ms. Perusini's paper qualifications are at least marginally superior to those of the grievors, if only as a result of her having acted for a period of 14 months in the very position being competed for. (We are mindful that this is a sore point, and is the basis of another distinct area of complaint.) Accordingly, even had the committee assigned marks for paper qualifications and experience, this would not have helped the grievors; they only stood to break even at best or lose slightly from such an exercise. Accordingly, we cannot give effect to this ground of 11 complaint. Unlike the committee in Poole, the members here had their eyes and ears open throughout the process. The Accounts Receivable Course As we understand it, once a year during "MNR Week" there are courses and seminars given to Ministry staff to upgrade their skills and knowledge. In 1989 at least, these courses were being held in Sault Ste. Marie. Several months prior to MNR Week (Feb. 27 - Mar. 2), the word was spread in the Toronto office that very few staff would likely be able to attend because of a lack of funds to send them. The cost to the Ministry for each person sent in terms of travel, accommodation and lost productivity was evidently considerable. Employees had to apply for the courses that they wanted to attend, assuming that they would be fortunate enough to be sent. Ms. Perusini asked to be sent on the accounts receivable course. Ms. Desi testified that she would have applied for the accounts receivable course had the prognosis for going been more positive. Instead, she applied for a labour relations course, thinking that it would be less heavily subscribed and therefore that her chances of being permitted to attend would be greater. Mr. Bousquet evidently was discouraged and did not apply for any course. In any event, the evidence was clear that all of the requests by the Toronto staff to attend courses were rejected, including Ms. Perusini's initial request. Sometime later, the accounts receivable course instructor Fred Walters made a request of Mr. Botterill that someone from the 12 Toronto office, familiar with the accounts receivable systems in place, attend the course as a resource person. Mr. Botterill decided to send two people, Sue Rooney and Eugenia Perusini. Ms. Rooney was sent because of her thorough proficiency on the Timber Accounts Heceivable System, which is one that is very much a part of the job done by the field workers who would be attending the course. Ms. Perusini was selected for several reasons. One reason was that she was well qualified in all areas of the accounts receivable system. Another reason was that Fred Walters was shortly to retire and would not be teaching this course in future years. Mr. Botterill anticipated that the next course instructor would be the Supervisor~ Accounts Receivable. Since Ms. Perusini currently occupied that position, he felt that she should be sent to observe the legendary Fred Walters in action. He stated in cross-examination that had either of the grievors been in the position at the time, he would have sent them. The essence of the complaint is not that Ms, Perusini learned anything in the course that helped her in the subsequent interview. Rather, it was that her selection so soon before the rerun betrayed Mr. Botterill's personal bias in favour of Ms. Perusini, a bias that could have been telegraphed to the selection committee and influenced them in their decision. Botterill had been on the selection panel the first time around and made no secret of his high regard for Ms. Perusini and his view that she would be the best person for the job. But there is no evidence that this view unduly or improperly influenced Mr, 13 Riviere or the other panel members. As Ms. Perusini'8 superior, Mr. Botterill was someone whose views were properly sought out by the committee. Had they not done so, they could have been accused of putting on blinders. He was directly asked by Mr. Riviere to give an assessment of each of the candidates' ' performance in their current position. This he did, and if he conveyed either directly or indirectly his higher regard for Ms. Perusini, that was an honest.opinion he held. Had the parties wished to provide that the rerun competition be held without the opinions of Mr. Botterill being considered, they could have provided for that in their settlement. In fact, they expressly provided that the applicants' supervisors Should be asked for their evaluations of the applicants.~ ,We cannot find any fault in the sending of Ms. Perusini on the course. She was still the acting supervisor, and her selection to attend was not so unqsual as to raise any sinister implications. We do not find there to have been any reasonable apprehension of bias arising from this circumstance. The Acting Assignment The complaint here is that Ms. Perusini held the Acting Supervisor position for a period of some 14 months prior to the first competition, which it is alleged was itself a violation of the Collective Agreement and ~ave her an unfair advantage in both of the competitions. That advantage stems not only from the 14 experience gained on the job, but also from the fact that while acting in that capacity she took a number of courses designed to foster management and supervisory skills. As for the courses that Ms. Perusini' took, there was no evidence that either of the grievors could not have taken similar or indeed better courses, had they wished, that would have advantaged them in their ultimate interviews. We can h~rdly fault Ms. Perusini for being ambitious or resourceful. As for her acting in the position, we cannot find at this point that there was any violation of the Collective Agreement. Although there was evidence that this lengthy acting assignment was the subject of some resentment and complaint, it was never grieved and ought not to be attacked collaterally in this proceeding. Was Ms. Perusini at an advantage as a result of having acted in the position for a period of almost 2-1/2 years by the time of the rerun? Of course she was, but we cannot say that the advantage was one unfairly obtained. The experience of doing the job was part of who Ms. Perusini was at the time of the first competition, and she was entitled to show it on her resume. While the rules of the second competition restricted the candidates to submitting their original applications and resumes, Ms. Perusini could hardly be expected to forget everything she 15 had learned both during the time prior to the first competition and after. In the Case of Co~, GSB #895/85 (Kennedy), the Board at pp.8-9 had this to say about a similar situation: "The simple issue to be decided on this arbitration is whether or not in evaluating these candidates the Employer was entitled to take into account the qualifications and ability of the candidate Jackie White attributable to the time she had spent as an incumbent in the position as a contract employee. It is our decision that the consideration of such qualification and ability by the Employer in no way contravenes the Collective Agreement between the parties. Article 4 requires the. Employer to consider the qualifications and ability of all candidates to perform the required duties and places no constraints as to the basis upon which any particular candidate acquires such qualification, and ability. It is not challenged that Miss White was a legitimate applicant for the position, and she is entitled to have her qualifications and ability evaluated as they may exist from whatever source. We would agree with counsel for the Un/on that the competition held pursuant to Article 4 must be fair to be valid. However, such fa/mess canno,.t justify the rejection of particular qualifications or abilities of particular applicants unless the collective Agreement so provides, or unless the Employer is in some way acting in bad faith or in contravention of the Collective Agreement in conferring some particular advantage on a candidate. Each candidate brings to the competition his or her own particular combination of native skill, education and work experience, and is entitled to have all of those aspects considered in the job competition, Only a contractual provision or a situation where the Employer has improperly conferred a benefit on a particular candidate can justify or require the selection committee from excluding some aspect of a candidate's qualifications and ability," In the instant case, we have already pointed out that there is nothing of a contractual nature that required the committee to overlook Ms. Perusini's qualifications gained while in the Acting Position. Nor can we embark on an enquiry as to whether the Acting assignment was itself a violation of the Collective Agreement. The opportunity to complain of such a violation was at the time. Therefore, we cannot find any merit in this ground of complaint. CONCLUSIONS There is probably no such thin~ as a perfectly-run job competition. It is a human process run by imperfect human beings. A rerun is surely even more difficult to conduct in a manner that will appear to all concerned to be fair. On balance, however, we feel that the Employer here did a pretty good job under all the circumstances of running a clean and fair competition. Any flaws pointed.out to us were de minimis. .The process was fair to all the candidates, and there is no reason to suspect that the choice of Ms. Perusini was perverse. On all the evidence, it was a reasonable selection with which we have no grounds or cause to interfere, and the grievances must accordingly be dismissed. Dated at Toronto this 16th day of October, 1989. Eric K. Slone, Vice-Chairperson M. Vorster, Member G. Milley, Member