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HomeMy WebLinkAbout1989-1992.McCormick.92-02-03 ONTARIO EMP~.O Y~'$ DE LA COURONNE i CROWN EMPL 0 YEES DE t., 'ONTA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNOAS STREET WEST. BUTTE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE /TEL~-'Pt~Ot',,'E. [4 ~6~ ~25- 138E 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONtArIO). MSG 1Z8 FACSIMiLE/TEL~COPiE .' (4 ~6) 326- ~396 [992/89 IN THE Under THE CROWN EHPLOYEEfJ COLLECTIVE BARGAININ(3 ACT THE GRIEVANCE SETTLEMENT BOARD BETWEZlq OPSEU (McCormick) - a~d - The Crown in Right of Ontario (Ministry of Revenue) EmploYer BEFORE.: N. Dissanayake Vice-Chairperson M. Lyons Member D. Clark Member FOR THE P. Lukasiewicz GRIRVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE M. Contini EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARIN~ June 22, 1990 November 26, 1990 December 4, 10, 1990 2 DECISION This grievance results from a job posting for 6 Corporations Tax Auditor (Field) positions at the Ministry of Revenue location at Oshawa, Ontario, classified as Financial Officer 4 ("FO4"). The grievor was unsuccessful in the competition and grieves that in denying him a position the employer has contravened article 4.3 of the collective agreement. The 6 successful candidates were M. Weaver, C. Li, C. Chen, L. Singh, W. Fisher and M. Guillermo. These incumbents were given due notice of this proceeding. All but Weaver attended the hearing intermittently, but chose not to take active part in the Droceeding. It is common ground that the grievor's seniority dates back to 1983, and that he was working as a FO4 at the Ministry's Toronto (North York) office at the time of the competition. Therefore it is also agreed that he was in fact seeking a lateral transfer from Toronto to Oshawa. The parties were agreed under the circumstances that the grievor was qualified for the posted position. The issue was whether the grievor was relatively equal to any of the incumbents, in qualifications and ability to perform the FO 4 duties as would entitle him to rely on his seniority. 3 Article 4.3 reads: 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. The employer's competition process consisted of an oral interview and a written test, followed by a review of the applicants' employee performance aDpraisals (EPA) and obtaining of reference checks. The Employer claims that at the end of this process, the employer was justified in concluding that the grievor did not demonstrate relative equality to any of the incumbents. The'union's position is that the competition process was fundamentally flawed so that its results are not reliable. It urges the Board to find, on the basis of the information before it, that the grie¥or had established that he was relatively equal to be able to claim one of the positions based on his greater senioritY. Given the parties' agreement that the grievor was qualified, the employer agreed to proceed first with its evidence. At the end of the employer's case, the union called no evidence. None of the incumbents were called to t~stify by either side. Nor did the grievor testify. The vacancies in question were posted i~ternally, and also advertised in the newspapers. Of 92 aDplication$ received some 35 candidates were identified as eligible for interviews. Of these 26, including the grievor, accepted the invitation to be interviewed. Mr. Steven Wilhelm, Supervisor of Field Audit at the Corporate Tax Branch office at Oshawa developed job application criteria based on the job posting and the position specification, and assigned weight to the various questions. The selection panel consisted of Mr. Wilhelm (Chairman), Mr. Lee Frankland (Supervisor of Desk Audit at Oshawa Audit office) and Mr. Carl Acco. Mr. Acco did not testify and we have no information of his designation. They interviewed the applicants as a panel, and indeDendently marked them. Where there was a significant discrepancy in the marks given by individual panel members to a particular answer, adjustments were made where necessary after a discussion to ensure that the panel members had not missed any part of the candidate's ans~er. The oral interview was worth 75% of the total marks in the competition. The written test accounted for the other 25%. The ~tated Durpose of the written test was to assess the applicant's "writing skills". Each candidate was required to prepare a written response for the manager's signature, 5 allaying the concerns expressed by a fictitiou~ corporate tax payer, Who had not understood why the Ministry was conducting a field audit of his company. The written responses were marked by each of the panel members, using a marking schem~ provided to.them by Mr. David Gabay, the Manager of the unit. The candidates were instructed not to. identify themselves in the test so that at the time of marking, the panel members would not be aware whose test they were marking. However, 4 of the 6 incumbents did not follow these instructions. Based on the marks obtained in the oral interview and the written test, the final mark was tabulated, and the applicants were ranked. The panel' established 60% as the minimum passing grade. The applicants who finished No. 2, 3 and 4 were not interested in a job offer. As a result the ranking and final mark of the top 8 of the remaining applicants were as follows: i. M.. Weaver 74.2 2. C. Li 69.0 3. C. Chen 68.4 4. W. Fisher 64.7 5. M.D. Guillermo 63.6 6. F. Mainville 62.4 7. L. Singh 61.8 8. C.R. McCormick (Grievor) 57.8 With these marks and the rankings, the panel turned to applying the concept of "relative equality'' under article 4.3. 6 Mr. Wilhelm testified that based on erroneous advice they received, the panel thought that seniority had to be given credit before any consideration of relative equality was made. Of the top 8 candidates listed above, only 3 were internal candidates (Weaver, singh and the grievor). Therefore they had some seniority. Regardless of the length of their seniority, the panel gave each of these 3 applicants an additional 6% in recognition of seniority. They felt at the time that by so doing, they were complyin~ with article 4.3. After this adjustment for seniority, the ranking changed to : 1. Weaver 80.2 2. Li 69.0 3. Chen 68.4 4. Singh 67.8 5. Fisher 64.7 6. McCormick 63.8 7. Guillermo 63.6 8. Mainville 62.4 The selection panel used the foregoing as the final marks for the candidates. As far as they were Concerned, by giving an additional 6% to all internal candidates with any length of seniority, they had applied relative equality as required by article 4.3. 7 It as apparent that if the employer were to make the job offers based ~n these final marks and ranking, .the grievor would have been awarded the 6th and final vacancy. That did not occur. Mr. GuilIermo who ranked behind the'grievor Was appointed instead. ~Mr. Wilhelm explained that once the panel had the final marks and ranking, he consulted the applicants' references and reviewed the EPA's of the three internal candidates for the 3 most recent years. The reference on behalf of the grievor was provided by Mr. Ron Young, who supervised the grievor's Work as FO 4 from ' December 19, 1988 to May 1989 at the Toronto office. Suffice it to say that Mr. Young's reference was a negative one. Mr. Wilhelm further testified that since the grievor was a long-time internal employee, his EPA's were reviewed "to establish'that what the marks showed is actual job knowledge and to'confirm that the marks reflect reality". There were 3 EPA's for the grievor reviewed, all in the position of FO 4. In the earliest one performed by Mr. Wilhelm, for the period February 1986 to May 1987, he was rated as "average" in each of the 4 categories. In the next two EPA's for the period June 1985 to May 1988, and June 1988 to May 1989 respectively, of the 4 categories, the grievor was rated as "low" in 3, and as "unsatisfactory" in the other. In each of these, critical comments are made about his performance. It 8 is fair to say t~at the grievor's EPAs, except perhaps for the earliest one, were not complimentary of his performance. The two later EPA's were clearly negative'in their assessment of the grievor's work performance. The selection panel did not quantify or score either the EPA's or the references. Nor did the panel members specifically address their minds as to what weight they would give to EPAs and references, as compared to the marks of the candidates. When Mr. Wilhelm was asked about this by his own counsel, he testified that prior to commencing the interview process, the panel decided that "if there is a negative reference or EPA it will negate a job offer." Mr. Wilhelm concluded, following his conduct of the grievor's reference check and review of the grievor's EPA's, that the results of the interview and written test, which put him in line for the last vacancy as the 6th highest scorer, were not reflective of his actual performance as a FO 4. The other panel members concurred with this conclusion. Accordingly, the panel offered the. 6th position to Mr. Guillermo, who finished 7th in the ranking. Mr. Guillermo, was an external applicant. Therefore he had no EPAs or personnel files. However, he received a positive reference from the Group Head at the Business Audit Branch of Revenue Canada where he was employed at the time of the competition. 9 The two panel members who testified, Mr. Wilhelm and Mr. Frankland, were extensively examined and cross-examined on how they marked the oral answers and written tests of the various applicants. We need not review all of that evidence. However, union counsel particularly questioned the allotment of marks for the written test of the grievor and Mr. Guillermo, who had being scored 6.8% and 13.5% respectively. That questioning revealed obvious inconsistencies in the marking. Following the closing of the employer's case, employer counsel agreed on behalf of the employer that the grievor should have received the same grade for his written ' test as Mr. Guillermo. In other words', the employer conceded that the grievor should have received an additional 6.7% .for his written test. It is conceded by the employer that the selection panel totally misconstrued and misapplied the concept of relative equality in article 4.3. It is agreed that the employer must first determine whether applicants are "relatively equal" in qualifications and ability and then consider the seniority of the candidates who are found to be relatively equal. Therefore, the allotment of an additional 6% as a r~co~nition of seniority of the internal candidates was ~mproper and should be ignored. Union counsel points out that when 6% is taken away from Mr. Weaver, Mr. Singh and the grievor, and when 6.7% is credited to the grievor's written test as agreed 10 to by the employer, it gives the grievor a score of 64.5%. In the ranking based on scores alone, that puts the grievor ahead of two of the incumbents, Mr. GUillermo (63.6%) and Mr. Singh (61.8%). It also brings the grievor within a mere .2% of the next higher ranked Mr. Fisher (64.7%), and to within 9.7% of the top ranked Mr. Weaver (74.2%). Union counsel in effect argued that the grievor achieved this ranking despite serious flaws in the competition process. It is his submission that those fundamental flaws make the competition process unreliable. The employer does not take serious issue with three of the flaws alleged by the union. Firstly, counsel agrees that the panel erred in the manner they purported to comply with article 4.3 by crediting all internal candidates 6% regardless of their length of seniority. Secondly, the employer concedes that the employer wrongly marked the grievor's written test. However, counsel submits that the first flaw is not fatal and can be remedied by simply revoking the 6% adjustment. Similarly, he points out that the error on the written test can be redressed by giving the grievor the same score as Mr. Guillermo, as the employer had agreed to do. According to employer counsel, that leaves two other alleged flaws. The first is that the panel treated a negative EPA or reference as a complete bar to an appointment. Counsel 11 for ·the employer acknowledged that the use of EPAs and reference checks in that manner is inconsistent with Grievance Settlement Board jurisprudence. Thus he concedes that can be regarded as a flaw. However, he does not agree with the union's fourth alleged flaw that the panel failed to consider the grievor's experience as a FO 4 as claimed by the union. In his view, the panel considered the grievor's experience as FO 4,.but justifiably did not give any credit for that because the reference and EPAs showed that he had not performed those duties satisfactorily. Counsel submits that the fact that there were some flaws in the competition process should not necessarily make the competition process unreliable. He urges the Board to conclude that despite those flaws, the ultimate decision of the panel that the grievor was not relatively equal was justifiable. It is a salient feature of this case that the grievor for a number of years has been employed in the very position he has applied for. Therefore it is agreed that he is'qualified for the position. However, what the employer,· and by extension this Board, is required to do under article 4.3 is not merely to determin% whether the job applicants possessed the minimum qualifications~and abilities to perform the FO 4 duties, but to assess their~relative equality. The objective· 12 of the competition process therefore can be said to be two- fold. Namely, to ascertain if an applicant is qualified, and if so, to assess the applicants relative comparison in qualifications and ability. Seniority comes in to play only if two or more of the candidates are found to be relatively equal. Since the parties have agreed that the grievor is qualified to perform the FO 4 duties, the only issue is whether the competition process was conducted in an appropriate way to determine the relative equality. The evidence was that the competition process itself was designed to test abilities and qualifications at the entry level. Mr. Wilhelm testified that it was anticipated in advance, .that some inexperienced applicants may have to be hired. Therefore the interview questions were designed to test basic skills and knowledge. However, from the evidence of the two panel members who testified, it was apparent that the expectations from the grievor both in the oral and written phases of the competition were not that of an entry level applicant to a FO 4 position. Thus on several occasions during his evidence, Mr. Wilhelm gave responses such as "that was an incomplete answer for someone who has done the job for many years" and "he should have been able to give a better answer given that he deals with that situation frequently". We are satisfied that, throughout the oral and written phases, the grievor was tested at a standard higher than that applied 13 to other applicants. Therefore there is some merit to union counsel's assertion that the grievor was in effect penalized because he had more experience than the other applicants, in the very position he had applied for. There can be no doubt that the employer is entitled, and indeed required to, consider the applicants' personnel files and references as part of the information 'available to test their qualifications and ability to the extent that such information is relevant to the duties to be performed in the posted position. In the present case, since the grievor was ' employed in the past as a FO 4, his past employment record including his EPA's and his reference were directly relevant. The employer therefore, was entitled to consider those. However, remembering that the purpose is to compare the relative qualifications and abilities, some caution must be exercised. The employer agreed that it was improper for the selection panel to treat a negative EPA or reference as an absolute bar to an appointment. We feel however that the employer's obligation in this.regard goes further. The weight to be attached to "a negative" comment in a EPA or reference must be taken in the proper context. When a supervisor makes a comment such as "needs improvement" in an EPA of a FO 4 who has occupied that position, say for 5 years, what he is saying is that for a person who has been in the job for 5 years the 14 employee's perf6rmance is not up to par. There were a number of such comments in the grievor's EPA and his reference. We are not satisfied that the panel gave proper consideration to the grievor's EPAs and reference. There is no indication that the panel members turned their minds to the fact that it was possible that the yardstick used in making the comments in the EPA's and reference may have been the performance level that may be expected from a FO 4 who had been in the position for some years. The corollary to that is the treatment of the references of the other candidates. ' We do not know whether they were performing above or below the FO 4 level in their previous jobs outside the Ontario Civil Service. We have no assurance, and the panel doe~ not appear to have considered this issue, that when a reference says that some aspect of the employee's work performance was "good", whether that refers to performance at the level of a FO 4 with several years experience, to a FO 4 at an entry level or to a level below that of a FO 4. The evidence suggests that the grievor alone was assessed at a higher level than the others because he had experience as a FO 4. This was not proper. In addition, the selection panel did not give any consideration to relative equality at all. To them relative equality meant giving a bonus of 6% to all the internal candidate~. This is a fundamental flaw, 15 which cannot be remedied merely by ignoring the 6% adjustment. There has been a total failure to apply article 4.3 in any meaningful way. It is also our view that the written test which accounted for 25% of the total marks, was useless to assess the applicants' ability to communicate as FO 4 because of the way it was graded. The grading scheme, which Mr. Wilhelm believed was from a grade 12 English composition text was technical in the extreme. It may have been an appropriate marking scheme to use in a competition to hire a professor in a Faculty of English Language. What made it even more inappropriate in this particular situation was the fact that ' the Panel was provided no instructions on how to apply such a technical document and they used it as they saw fit. It became obvious during testimony that the panel members were not competent to meaningfully use the document. We think that only someone highly qualified in English language studies will be competent to administer'that kind of marking scheme. We are not satisfied that even a proper application of that marking scheme is of assistance in assessing the abilities to perform FO 4 duties. We therefore find that while the panel members conceived and administered the competition process honestly and in good faith, it involved such serious flaws as to make it useless as a guide to determining the relative qualifications and abilities of the applicants. Despite the employer's 16 expression of willingness to compensate for the flaws, we are not convinced that that can be done in the manner suggested. We do not feel this is an appropriate case in which to award the grievor one of the posted positions. The selection of professional employees such as these must be based in large part upon familiarity with technical accounting concepts and techniques. This Board must be sensitive to the limits of its institutional competence. The task of this Board is made more difficult because of the limited nature of the information before us. The grievor did not testify. Nor did any of the incumbents. Therefore we had no opportunity to assess them first-hand. Nor are we satisfied that all of the relevant documentation was before us. See, Re Alam, 735/85 (Brandt). In the circumstances we feel that the preferable course to follow is to direct that the competition be re-run, and we hereby do so. We do not feel that in the particular circumstances here, there is any need for conditions, apart from the condition that the competition be restricted to the 6 incumbents and the grievor, and that the experience gained by the candidates since the last competition be not given any consideration. We do not feel that it is inappropriate for any or all of the panel members to sit on the selection panel on the re-run of the competition if they choose to do so. We are satisfied that they will be able to function in that 17 capacity, in good faith to run a competition taking guidance from this award to avoid the flaws in the last one, and in accordance with this Board's jurisprudence. The grievance is therefore allowed in part. The Board remains seized of jurisdiction to resolve any difficulties that may develop in the implementation of this award. Dated this 3rd day of February, 1992 at Hamilton, Ontario N. Dissanayake ' Vice-Chairpe~rson D. Clark Member.