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HomeMy WebLinkAbout1989-1957.Vandevalk.91-05-08 ONTARIO EMPLO¥£$ DE LA COURONNE . CROWN EMPL 0 YEE$ DE L 'ON TAFflO GRIEVANCE' C,OMMISSION DE ' SETTLEMENT REGLEMENT BOARD DES GRIEFS 180.~GUNDAS.STREET WEST, SUITE 2100, TORONTO, ONTAR/O. MSG 1Z8 ' TELEP1'~ONE/TEL£PHONE: (4~6) 726-;38~ 180, RuE DUNDAS GUEST, SUREAU 2~0, TORONTO (ONTAF~IO), fefSG 1Z8 ~ FACSiMtLE/TE£~COPlE (4 ~6J 325- 1396 3.957/89 IN THE MATTER OF AN lk~BITP~TXON Under THE CROWN EMPLOYEEB COLLBCTZVE BAR~AZNZNG &CT Before THE GRIEVANCE SETTLEMENT BOARD - BETWEEN OPSEU (Vandevalk) Grievor - and - The Crow~ in ~i~ht of O~tario .(Ministry of the Environment) Employer BEFORE: W. Low Vice-Chairperson E..Seymour Member M. O'Toole Member FOR THE B. Ahad GRIEVO~ Grievance officer Ontario Public Service Employees Union FOR THE K. O'Shea EMPLOYER The Institute HEARING April. 12, 1991 DECISIO~ This grievance arises out of competition EN403CR for the position of senior operator at the Clarkson.sewage plant. The Grievor, Henry Vandevalk, is a water treatment ~lant operator at the Lakeview water treatment plant. He has been· employed by the Ministry since January 21, 1980. In August of 1989, a position of Senior Operator came vacant at' the Clarkson plant. The position was posted,and was restricted to employees of the South Peel Water and Sewage System.- There were originally four applicants, the Grievor, the incumbent (Mr. D'Cruze) and. two others, one of whom was not qualified and the other of whom withdrew. Thus, the competition came down to a choice between Mr. Vandevalk and Mr. 'D'CrUze. Most of the facts are undisputed. Mr. Vandevalk has the greater seniority over Mr. D'Cruze. The three man selection panel examined the relevant sources of information prior to reaching their decision, namely, personnel records, the applications, the resumes, performance appraisals and the results of the interview. The interview consisted of a three part math test and an oral examination. The candidates were given marks out of 10 on each question in the oral and math parts, of the examination; the questions were not weighted for relative importance. On the \ interview, Mr. Vandevalk scored an average approximately 5%'lower than Mr. D'Cruze. The question which this Board must decide is whether Article 4.3 of the Collective Agreement has been violated. It provides: "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, lengthof continuous service shall be a consideration." We must first determine whether or not the candidates were in fact relatively equal. All three me~bers of the selection panel gave evidence. Mr. Glenn Passmore, the Superintendent at the Clarkson plant, and a panel member, testified that both Mr. Vandevalk and Mr. D'Cruze were good candidates and that based on their applications and resumes Were very similar~. Mr. Passmore considered that Mr. D'cruze had slightly better experience in a supervisory capacity. There was nothing in the performance appraisals to prefer one over the~other. Mr. Passmore said he chose Mr. D'Cruze because he had more ex]~erience in a supervisory position and because he had a better result on the interview. Mr. Passmore testified that he had made his decision but he did take into consideration employment equity (about which more will be said infra). The'panel felt that because the race was so close they ought to consult Mr. Adams and Ms. Manoim of the staff relations branch and engage 'their expertise on the question of whether employment equity ought to apply and if so, how. Employment equity was an initiative on the part of the employer to promote certain groups, namely minorities, women,, natives, francophones, and the disabled. Mr. D'Cruze is a member of a minority. Mr. Vandevalk is not. In any case, the result of the panel's consultation with Mr. Adams and Ms. Manoim was that the panel came away with the impression that employment equity could be one of the factors but not a major factor in the selection Process. Mr. Ken Brown, the Supervisor of Engineering ~ervices.for South Peel at the time, was the second panel member. He testified that both candidates were qualified and both were excellent. He testified that based on a 'review of their respective files, he could not conclude that one candidate was better than the other. His evidence was that the prime way the decision wasLmade was based on the marks on the interview. Much was made of the fact that Mr. Vandevalk failed to answer all of the math questions correctly. We do not believe that the math error merited such emphasis, for the test was out of a possible total mark of 160. It .was not a prerequisite that the successful candidate score perfectly on the math, for as Mr. Passmore testified, he would rate the math question which Mr. Vandevalk missed at a rate of 4 to 5 in relative 4 importance (out of 10). ~ Mr. Brown testified that he did not feel the candidates were equal and candidly confessed that, to his engineer's mind, even a 1% differential would indicate inequality in his view. The third member of the panel was Doman Nandalall, Supervisor of.Administration and Operations for ~he Central Region. He has sat on over 100 selection panels and is the human resources delegate to these panels. Unlike Mr. Passmore and Mr. Brown, he has no technical expertise, but is present to see that the panel is run properly. Mr. Nandalall testified that the candidates were equal on the basis of their records and were in his view equal. after the interview. }{e considered employment equity and asked for help from Brad Adams. He felt that the employment equity policy should be used and approved Mr. D'Cruze because of the employment equity policy. First, we think it important to note that Article 4.3 speaks to candidates who are "relatively equal". It does not speak to candidates who are in fact equal. It strikes us that the draughtsman had in mind situations where in fact there is inequality but nevertheless "relative" equality, suggesting a territory within which more than one candidate may fall without necessarily having either equality of experience or of test scores in the context of the competition. Clearly that territory will be wider or narrower depending on the nature of the position competed for. One would reasonably presume that if the competition were for, say, a position as physicist in a nuclear reactor plant,' a differential of 5~ would be critical; if the position were that of, say, purchasing clerk as it was in I,abonte (35/89), such a difference would not be significant. The jurisprudence, as to what "relatively equal" means tends to approach the concept as if from the. back door by taking the view that candidates are equal unless one is superior by a "substantial and demonstrable margin". (v. In Re Lady Ga!t Towels Ltd. and Textile Workers Union, 20 L.A.C., 382 (Christie)). While such a.test tempts one to impose the onus on the employer to demonstrate inequality, it is not necessary in our view to do so in these circumstances. 'It is reasonably clear that the panel.members considered this race to be extremely close and in the mind of one member, to be'a tie. The panel was sufficiently concerned with the closeness of the candidates to call in Mr. Adams and Ms. Manoin for their advice as to the applicability of employment equity. In our view, such advice would not have been sought had the panel not been of the view that the candidates were in fact "relatively" equal. In saying this, we are mindful of Mr. Brown's evidence that he felt the candidates were not equal, but actual equality is not the issue. The issue is one of "relative" equality, and the evidence of all the members of the panel was unanimous on this point - that both were excellent candidates. In the circumstances, given that the questions on the math and oral exam were not weighted for · ~ importance and given the weight that Mr. Passmore would assign to the math question that Mr. Vandevalk mis~e~, we could not conclude that a 5% differential in the interview score represented a substantial and demonstrable margin of'qualification or ability in favour of Mr.' D'Cruze. R~ther, the conduct of the panel members at the time of the competition is indicative that they considered the candidates to be relatively equal, hence their query as to whether emploYment equity should be applied and we are of the view that indeed the candidates were relatively equal. That being said, hoWever, does 'not resolve the matter finally for Article 4.3 provides only that seniority shall be a consideration. Had the parties intended that seniority shall govern or. that it shall be paramount, they could easily have 'so stipulated,' but they have not. It is not clear from the evidence what consideration went into the choice of Mr. D'Cruze over Mr. Vandevalk. In the case of Mr. Nandalall, it would appear that employment equity was the paramount criterion, as in his view the candidates were equal. Mr~ Passmore said he considered employment equity. Mr. Brown appears to have chosen Mr. D'Cruze on the grounds that the candidates were not actually equal and does not appear to have given consideration to the question of seniority or employment equity in coming to his choice, although he indicates that the employment equity factor was "bonus" in favour of Mr. D'Cruze. Accordingly, we. are of the view that this competition should be re-run: (a) with a new panel; (b) restricted to Mr. Vandevalk and Mr. D'Cruze; (c) provided that neither candidates' experience since the original competition shall be taken into consideration. This panel of the Board will remain seized should the parties require further directions. DATED at Toronto this 8th day of :~LMaT~'-."'9 1.991. · WAILAN LOW, Vice-Chairperson _E. SEYMOUR, ~le~ber Member