HomeMy WebLinkAbout1990-0652.Tessier & Mroczynski.92-02-17
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ONTARIO EMPLOYÉ.S DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTARIO
1111 GRIEVANCE COMMISSION DE
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SETTLEMENT ,REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG IZIl rELEPHONElr~~~PHONE: (416) 326- 1388
180. RuE DUNDAS OUEST, BUREAU 2700, TORONTO (ONTARIO), M5G 1Z8 FACSIMILE/TItLÉCOPIE: (416) 326- ¡ 396
652/90, 747/90
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THB GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Tessier/Mroczynski)
Grievor
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The Crown in Right of ontario
(Ministry 'of Correctional Services)
Employer
BEFORE: J. Roberts Vice-Chairperson
J. carruthers Member
D. Clark Member
FOR. THE K. Whitaker
GRIEVOR Counsel
MR. TESSIER Ryder, Whitaker, Wright & Chapman
Barristers & SOlicitors
FOR THE N. Roland
GRIEVOR Counsel
MR. ~OCZYNSKI CorniSh, Roland
Barristers & Solicitors
FOR THE B. Christen
EMPLOYER Counsel
Winkler, Filion & Wakely
Barristers & Solicitors
INTERVENOR C. Chevrefils
HEARING. October 4, 1990
January 29, 1991
February 26, 1991
April 18, 1991
November 1, 1991
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AWARD
This is a most unusual job competition case. It is a case in
which the Ministry conceded that the competition was ,fatally
flawed. This placed the two grievors, Messrs. Tessier and
Mroczynski, in the position of arguing that despite the existence
of these flaws in the competition, the Board was capable of
deciding on the evidence before it whether one or the other should
be placed in the job. The Board, however, does not consider the
evidence to be sufficient to overcome the flaws in the competitive
process, and hence we decline the invitation of the grievors.
Instead, we remit thé matter to the Ministry with a direction to
rerun the competition in accordance with certain criteria se~ forth
later on in tbis award.
The competition in question was for a new position, that of
Institutional Bailiff, operating out of the Sudbury Jail.
Apparently, as a result of a. reorganization of bailiff activi~ies
in the Ministry, the Norther Region of the Ministry was about,to
cease relying upon bailiffs from the Toronto area and the
occasional assignment of correctional officers for purposes of
transporting inmates between institutions. In line with this plan,
two new bailiff position were created expressly to serve the"
Northern Region: one based at the Cecil Facer Youth Centre and the
other, being the position in question, at the Sudbury Jail.
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On March 5, 1990, the Ministry posted an opportunity Bulletin
inviting applications for this position. This bulletin read, in
pertinent part, as follows:
COMPETITION CI-5051-90
APPLICATIONS ARE INVITED fOR THE POSITION OF:
PROVINCIAL BLAILIFF (NEW POSITION)
LOCATION: SUDBURY JAIL
CLASSIFICATION: PROVINCIAL BAILIFF 1
SALARY: $18.84 - $19.83 PER HOUR
(UNDER·REVIEW)
SCHEDULE: . 4 (40 HOURS PER WEEK)
The successful candidate wili be responsible for the safe,
secure transportation of provincial, federal, and remand male
and female inmates/yo~ng offenders throughout Northeast.ern
area of the Northern Region with occasional out of area
transf ers , by road and air. Other duties will include:
liaising with, receiving and mai'ntaining security at all
times; transferring federal inmates for court appea.rance;
submitting reports to the Bailiff Supervisor on all incidents
and unusual occurrences.
QUALIFICATIONS:
significant experience as a Correctional Officer 2 with solid
background in security practices and procedures, normally
acquired through several years experience and exposure to
escort duties and transferring of inmates/young offenders;
valid ontario Driver's License and acceptable driving record;
good report writing skills; acceptable attendance and work
record; willingness and ability to travel extensively
throughout ontario on trips of up to four days duration;
knowledge of various warrants required by legislation.
N.B. : Please indicate your consent in the covering letter to
allow your personnel file to be accessed for purposes of
assessing your qualifications. Failure to include your
consent will result in your qualifications being assessed on
the basis of information contained in your application/resume.
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According to Mr. Ken Graham, the Area Personnel Administrator
responsible for the competition, the major qualification for the
position was considered to be significant experience as a
Correctional Officer 2.
Mr. Graham also testified that in the end, there were seven
applicants for the job and all seven were interviewed. With Mr.
Graham on the Selection Board were Mr. Don Pointer, the Co-
ordinator of the Bails Division in Toronto and Mr. Don Horner, a
former Supervisor for bailiffs.
According to Mr. Grahqm, thè members of the Board reviewed the
resume of each applicant prior to his or her ,interview. In
addition, the applicants were asked to bring their most recent
Performance Planning and Review reports (PPR's) with them along
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The PPR's that the applicant provided, however! were no~ up to
date. According to Mr. Graham, the most recent PPR's were for the
period 1987-88. It seemed that none had been completed at the
sudbury Jail for 1988-89 or 1989-1990.
As to the que~tions that were asked during the interview, Mr.
Graham testified that they were the same questions that were asked
in an earlier competition for the other bailiff position based at
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the Cecil Facer Youth Centre. He said that it was decided that,
while these questions were developed by another panel for the other
competition, there was no danger in using them for the competition
at hand. There was,. Mr. Graham, said, no overlap of candidates
because the competitions were restricted to the staffs at the
respective institutions.
Because the questions had not been developed by Mr. Graham and
the other members of the Selection Board in this competition, it
was not possible for him to testify to their perceived relevance to
the possession of qualifications for the bailiff position, nor was
he able to testify as to the reasons for the way in which the marks
were allocated among these question. From our own review( it seems
that the first ten questions were designed to test the general
level of knowledge of each applicant regarding the duties and
responsibilities of a bailiff. Question eleven was more general in
nature, testing the knowledge of the, applicants as to when "mace"
might be used. Question twelve was directed to knowledge of the
statutory source of their authority. Question thirteen tested
their decision making ability in a hypothetical situation. The I
final two questions were not really questions at all. They simply
allocated points to each applicant based upon years of service as
a Correctional Officer and a review of the PPR's.
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The general background questions, i.e., questions one to ten,
were allocated a total of seventy-three available marks. The
"mace" question was allocated six marks and the hypothetical
situation was allocated ten marks. The statutory authority
question was worth only two marks. Finally, thirteen marks were
allocated to years of experience as a correctional Officer and the
review of the PPR's.
The allocation of so few points to experience and the PPR's
seemed surprising in the light of Mr. Graham's evidence that he
considered the major qualification for the job to be significant
experience as a Correctional Officer. Only thirteen points were
allocated to these categories while seventy-three points were
allocated to background knowledge-type questions seeking
information that seemingly could have been learned from studying
and memorizing the· job description for the bailiff position and
related documents.
There were other problems. Mr. Graham testified on cross-
examination that any detrimental information on an applicant's
disciplinary record that was more than two years old would not be
considered significant by the panel. Perhaps for this reason, he
sought to cure the problem of the out-dated PPR's of the candidates
by telephoning the Sudbury Jail to get verbal information regarding
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the performance of each candidate in the past year. He did not,
however, talk to the direct supervisors of the candidates but
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rather to Mr. Louis Migneault, the Deputy Superintendent of the
Sudbury Jail, to whom the direct supervisors reported. Mr. Graham
said that he did this because he believed that Mr. Migneault was
familiar with all the candidates and because by virtue of the shift
structure at the sudbury Jail, all of the candidates had five to
six supervisors.
According to Mr. Graham, Mr. Migneault said that he felt that
the performance of the candidates had not changed significantly
since their prior PPR's and if the PPR's had been up to date, they
would have been identical. Mr. Graham added that from his own
experience, once a correctional Officer had been around for awhile
his or her PPR would chang~ very little from year to year in the
absence of any significant positive or negative occurreric~.
Mr. Graham further testified that the other members of the
Selection Board relied upon him to report back the information from
the Sudbury Jailt and in line with this, he wrote the information
he received from Mr. Migneault in the comments section beside
question fifteen on each interview sheet.
Mr. Graham also acknowledged that no one on the Selection
Board reviewed the personnel files of any of the candidates.
Because the Board Members were from widely separated geographic
locations, Mr. Graham said, they decided to have someone from the
management staff at the Sudbury Jail review the'personnel files of
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the candidates and give them a verbal report on any significant
incidents recorded therein.
From what was reported to him, Mr. Graham said, he learned
about an incident in which one of the grievors, Mr. Mroczynski, was
engaged in a dispute with another Correctional Officer who,
apparently, had reported that on one occasion Mr. Mroczynski had
not followed standing orders. He also learned that the other
grievor, Mr. Tessier, had a quick temper and that the incumbent Mr.
Chevrefils, had been faulted with respect to-an escape attempt by
an inmate several years ago. Besides that, he said, it was
reported to him that nothing stood out.
Upon cross-examination, Mr. Graham agreed that several other
incidents to be found in the personnel records of some, of the
candidates were not brought to his attention. He indicated,
however, that if an incident .of misconduct was rare or happened
several years ago, it would not have influenced his' decision.,
When everything was completed, Mr. Graham said, he and the
other members of the 'Selection Board went over the sheets for each
candidate and totalled their scores. Mr. Mroczyns"ki received an
average of ninety-five, which was the highest score. Mr. Tessier
came next, with an average of eight-three and in third position
was Mr. Chevrefils, with an average of eìghty. Mr. Graham
testified that this posed a dilemma for him because Mr. Mroczynski
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was junior by far to Mr. Chevrefils. The former had only seven
years and four months of seniority while the latter had twenty-one
years and five months. Mr. Tessier was in between Mr. Mroczynski
and Mr. Chevrefils with thirteen years of seniority.
Mr. Graham stated that he believed that on the scoring, there
was no significant difference between Mr. Chevrefils and Mr.
Mroczynski and consequently, he recommended that Mr. Chevrefils be
the successful candidate. Mr. Pointer, on the other hand,
indicated that he believed the point spread between Mr. Mroczynski
and the others was significant enough ,to support a recommendation
in favour of Mr. Mroczynski. Mr. Horner, the least experienced
member of the panel, indicated that he was uncertain as to which
should be successful ~.,.
In light of this impasse, Mr. Graham stated, hè decided to
seek the advice of his superiors. When he contacted Mr. Bill Roy,
the Regional Manager, he said, Mr. Roy indicated that before the
Board recommended Mr. Chevrefils, a check should be made with the
Legal Services Branch of the Ministry. After he did so, Mr. Graham
testified, the Board recommended that Mr. Chevrefils be the
successful incumbent.
Because of the unusual circumstances in which this
recommendation was made, Mr. Graham indicated, he decided that he
would prepare a written set of reasons for the decision, and this
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document was'entered into evidence. In his Reasons for Decision
and in his te'stimony, Mr. Graham indicated a degree of
dissatisfaction with the way in which the interview questions were
required to be scored. He indicated that, pursuant to the scoring
system that was utilized, each of the three top candidates received
five points for his PPR's; however, a review of the PPR's showed
that Mr. Chevrefils out ranked both Messrs. Mroczynski and Tessier
in the three categories of the PPR's that he regarded as the most
important for purposes of the bailiff position. He also questioned
disparities in point allocation' based upon what appeared to be
minor differences in attendance records.
Mr. Mroczynski testified that he was sorelŸ disappointed when
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he was officially notified that he was not the successful candidate
because, from information that had been leaked to him through Mr.
Harry Barts, the supervising Bailiff in Sudbury, he had previously
learned that he had received the highest score in the competition
and was given to understand that he had been recommended for the
job.
Mr. Mróczynski further testified that, for several reasons, he
believed that he should have been the successful candidate. In,
particular, he relied upon his experience handling documentation in
the Admitting and Discharge area of the Sudbury Jail and his
considerable exposure to supervisory responsibilities as an Acting
Shift Supervisor.
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According to Mr. Mroczynski I . a great portion of the
responsibilities of a bailiff dealt with the checking of documents
and liaising with other institutions and the police. When he
worked in the Admitting and Discharge area, Mr. Mroczynski said, he
became familiar with documents such as Judges' Orders, Warrants of
committal, remand documents and transfer documents. He said that
he would check them to see whether they were filled out correctly
and ensure that the prisoner named was indeed the person in his
custody.
As a Shift Supervisor, he said, he dealt with many of the
situations that a bailiff would experience, while supervising
inmates in transit. He said that his responsibilities were to
ensure the security ôf the inmates, deal with public relations,
check documents, settle differences between inmates and
Correctional Officers, make decisions in emergency situations, and
issue medications 1n the absence of the nurse, e.g. , On the
afternoon shift and on weekends. In the last five years, Mr.
Mroczynski added, he was Acting Shift Supervisor for about half
that time and was assigned to that position more often than other
Correctional Officers.
Mr. Tessier testified, that, like Mr. Mroczynski, he also had
experience as an Acting Shift supervisor and in the Admitting and
Discharge Area of the jail. T"his experience, he said, occurred
earlier in his career. He was probably an Acting Shift Supervisor
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for about a total of six to eight months and in 1985 spen~ a year
as Acting Admitting and Discharge Officer in the Admitting and
Discharge Area. In addition, Mr. Tessier testified, when he
reviewed the position description for the bailiff jOb he found a
number of duties that were very similar to duties he had performed
earlier on 'numerous occasions when he was at the Toronto East
Detention Centre. At that time, he said, he transported inmates
throughout the Region. In addition, he said, when he arrived in
Sudbury he performed this function about four or five time per year
throughout the 1980/s.
As has already been indicated " it was conceded in the
submission of the Ministry that the selection procedure in this
case was fatally flawed. The flaws were listed by counsel for the
Ministry as follows:
1- The personnel files were not personally reviewed by
anyone on the panel;
2 . There was no opportunity for each panelist to see the
personnel files;
3. There was no contact with the immediate supervisors of
the candidates by the panelists;
4. There was no weight given to the "acting" experience of
the candidates¡
5. The most recent PPR'S for the candidates were not
?vailable¡ and,
6. Inappropriat~ questions we~e asked in the interview.
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In light of these defects, counsel for the Ministry conceded, the
Grievance Settlement Board would have little difficulty with
ordering a rerun of the competition. See Re DesijBousquet and
Ministrv of Natural Resources (1989), G.S.B. Nos. 226/89, 227/89
(Slone) ; Re Hall/Powers (1990), G.S.B. Nos. 716/89, 866/89
(Gorsky); and, Re Barber and Ministry of Correctional Services
(1990) I G.S.B. No. 1397/85 (Kirkwood) .
Counsel for Mr. Mroczynski, however, submitted that the Board
should go farther than ordering a rerun and, in fact, was in a
position to order Mr. Mroczynski into the.position. He pointed out
that Mr. Mroczynski was the top scoring candidate and highlighted
the fact that at least one Board Member concluded that the margin
between him and the other candidates was, significant enough to
recommend that he be p~aced in the position.
In this regard counsel stressed that Article 4.3 of the
Collective Agreement specified that primary consideration was to be
given to qualifications and ability and only when they were
relatively equal did seniority count. We were referred to a number
of decisions that, in the submission of counsel, demonstrated that
the margin enjoyed by Mr. Mroczynski was wide enough to demonstrate
that the other candidates, including the incumbent, Mr. Chevrefils,
were not relatively equal to him. See Re Winn and the Ministry of
Transpiration (1990), G.S.B. No. 1126/89 (Verity) ; Re Nixon and
Ministrv of Transportation (1988) , G.S.B. No. 2418/87 (Fisher) ;
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and, Re Renten & Ross and Ministry of Goyernment Services (1986) I
G.S.B. Nos. 1577/84, 1578/84 (Roberts) .
On the other hand, counsel for Mr. Tessier submitted that he
should be put into the position by the Board. It was emphasized
that in light of the significant delay between the date of the
competition and the final date of hearing, a period of almost two
years, the Board was faced with a situation where the interest of
justice and finality would be served by exercising its discretion
to place one of the grievors into the position. In the submission
of counsel, both Messrs. Tessier and Mroczynski were relatively
equal in their career development, performance, and expectations
and that thëre was a significant difference between them and a
successful incumbent, Mr. Chevrefils. In light'6f this relative
equality, it WqS submitted, the job would have to go to Mr. Tessier
because he' was more senior than Mr. Mroczynski.
Finally, counsel for the Ministry submitted that if the Board
were disposed to bring the matter to an end without ordering a
rerun, it should exercise its option of leaving Mr. Chevrefils, the
incumbent, in the pasi tion. This submission was based upon the
lack of definitive evidence regarding the equality or lack of
equality of the three candidates and the significantly greater
seniority of Mr. Chevrefils to that of the two grievors.
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We find it indeed regrettable that, so much time has passed
between the competition herein and the date of issue of this award;
however, it is our-opinion that this is a case in which we have no
alternative but to order a rerun of the competition. On the
evidence of Mr. Graham, it must be concluded not only that
inappropriate questions were asked in the course of the interview
but that the relative weighting of the questions was skewed away
from what Mr. Graham regarded as the most significant attributes of
a bailiff. Because of this, it is impossible to regard the scores
of the candidates as a meaningful indication of their relative
ability to perform the job.
Turning to the evidence of Messrs. Mroczynski and Tessier as
to what they believed were the most important attributes, we cannot
accept these as credible objective standards. Nor can we discern
with any degree of precision appropriate standards, from the
testimony of Mr. Graham. It was he who decided to adopt the
questions from the previous competition in the first place, leading
us to infer that he must have determined at one time that the
questions and their relative weightings were appropriate to the job
in question; then, however, he brought this into question in his
own testimony and his written reasons for choosing Mr. Chevrefils
to fill the position. On so uncertain a record as to what
standards to apply, it would be impossible for this Board to make
any rational decision as to which among the three persons before us
might be most qualified for the bailiff position.
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I . Accordingly, we m~st remit this competition to the Ministry
for a rerun. The rerun should take place within sixty calendar
days of the date of this award and will be limited to Messrs.
Chevrefils, Mroczynski and Tessier. The Selection Board must not
include any of the members of the original Selection Board and its
members must design for themselves the questions to be asked 'in the
course of the interview, along with their weighting relative to the
weight given to prior experience as a Correctional .Officer and the
PPR's. The questions must also be designed to discount the
experience that Mr. Chevrefils has gained as th~ incumbent in the
bailiff position. We will remained seized pending i~plementation
of the terms of this award by the parties.
DATED at London, Ontario, this 17th day of Februa ry,
1992.
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Vice-Chairperson
~"'Jv~~"~. ~ ..J
J. Carruthers, Union Member
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D. Clark, Employer Member
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lion rf.tlon8iB in SectIcln 8.
AR othc r ~tlon.: Com.... or III" IomT ;" full or as ðel out abow 101 UIldIUSiIk/d Seaonal Posiliolle, I. option."
l~lltruCtion8 for c~g Poaluon identifier Instructions lor coding SellllGn.! Work Period
Codt , Coòe 1 :2 3 " -,
(u applil:8b1Cl1
::lMsIfIlId P~\Ions --- WInt.. Spnng SuØuner Filii
Full-lil'lW 1 and ~ Dec. Mar. J\lne s.ø.
PatH-llne 2 canMCv\lve Jan. Apt. Jul. Ocl.
Jnd.....ílld PoIi1Ions order. Fell, May A~, Nov,
Group 3 .
a) s.-al 'Oft)I'A f*iad II CDI'IIlIeIII"'-
........ 01' mln lxrt lea than .. mon1h. 3 Build code as follOws:
þ' s.-¡ -* P4"1od" _live . Single saaon. i.l" Spn.,g Ell~,"
mÐn1lla 01' more ÞItI ... 111..-. 12 monlhs ..
Ctoo.Ip2 5 1. Indlcal:. .._n. r-o ~DI ~ I
Group 1 2. lne111t 'J p1ic, CQde ....'no¡:i,.. 0 zlll
8 in Iefl hand bolI;.
:m. Cl'O'Øn 7
. "'u~lpI. _, f.e.. SURIITlIt. FlU. Winter
InStructions fOf' coding Sch. HfII. Work 1, lndIClIte __"*-
. CoftlpIete thIe IlOllIor R,p.T. PoeltlonI ønl'f. 2. I"Mn COCII of lI1ert
__ in lell hand boll. l-·~ -~l eø- 1
. Indllde por1iOM d hours to 2 dIIcIIMl pl--. 3, Follow wll/l codn cI Softn;OF'ol [j\,\·\,1
NOT1!.: The ~ cI "" IIIltullillloulll WOI'Ød (ilia ~ _ .. ~~~
~... ~ Fl.P.T. ~ U8lOMá to a positIOn -
IIIUIIlXIinCidI wilh lhe ~ Haura 01 WorIl idalltIfllld lol'
tft ; pœjIIOn. Mt clwI9 10 lI1e Schedullld Holn 01 WorIl wiD
reQUI" IN Iu'···_h"'_'t and CIOC\JTItntalIO of a ~ NOll;:; MulUple __lIS must be ~iIIe to qIl.slly lIS one poSItIOn.
paIitiQn,
Out ies and related ta8ka
lOS PtrfOf'Trl8 other related dJtiea by:
Ens&r ing safety of and OJStcdy of it1lBt.eslYoung Offenders placed in carEl of;
paying ex;lenS88 inorred on trips. and sut:rnitting travel claims: consulting
eaq iff Superviecr 00 any \A'\USUlll occurrences cilring transfers i.e. ; 11ness ,
accident. riots etc.: servicing OWl vehicle, other liJties as assigned.
SkillS and kncMledge reqJired to perform job at fun 'IolOI"king lErNel (Cent'd):
good eommunication skills. ;r.
lhe po81tiOQ or&aøizatlooally reports to your Assistant Superintendent but functionally
to tbe SUperv18iDg Bailiff C4D acting position)
I