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HomeMy WebLinkAbout1990-0771.Prommer.94-11-15 r... f-t-, <"-- J"..... ~ ·;....t;;:¡¡, J«, '. ' ,~:..P~>" -i "b'" ONTARIO EMPLOYÈS DE LA COURONNE \'~ 1~,;,J}i~,: CROWN EMPLOYEES DE L'ONTARIO J ¡-~ Xilf-ojo ¡., 1,,"0;,,> ~fot- , ..¡ I " "', ':"J'; GRIEVANCE COMMISSION DE , 111111 SETTLEMENT REGLEMENT , BOARD, ' DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, MSG 1Z8 T£LEPHONEIT~LEPHONE: (416) 326-1388 ISO, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), M5G lZ8 FACSIMllEITÉL.ECOPJE .- (416) 326-1396 -+-- ,,171/90 I I IN THE MATTER OP AN ARBITRATION Under .... THE CROWN EMPLOYEES COLLECT:IVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (prommer) Grievor - and - Thé Crown in Right of ontario (Ministry of Community & social services) Employer BEFORE G. . Charney vice-Chairperson P. Klym Member D. Montrose Member FOR THE L. Newton GRIEVOR Counsel Cornish Roland Barristers & Solicitors FOR THE J. 'Smith EMPLOYER Counsel Legal Services Branch Ministry of community & Social Services BBARING January'17, 1991 March 19, 1991 April 5, 1991 May 9, 1991 July 18, 1991 (executive session) \ . -. . . .' . ..~ __co cd....~.._...,,..._.·~·~.....,_ _.... .......~.... .......--.."....__.... -~ ~ , ," l AWARD The issue before the Board . is whether the' grievor was improperly denied-a promotion to payroll group leader. There was a preliminary matter before the Board in which the employer refused to release the employment file of the incumbent who received the promotion. On agreement of the parties, the file was released and the' matter adjourned. The union alleges a violation of the collective agreement, namely, Article 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. The matter before us is a competition that was held to fill a developmental aSsignment position for less than six months. Under Article 6 of the collective agreement, the employ~r could have, under Article 6.6.1, filled the temporary position and avoided Article 4, however, it was agreed by the parties that once the employer decided to have a competition, the employer' srights under Article 6 were waived and the procedure is under Article 4.3 and both sides acknowledge that the employer must do it correctly. The incumbent was a probationary employee for one year ending March 1, 1990. He received a performance 'appraisal on April 3, 1990 and the posting was closed on March 28, 1990., In other words, the employee who was selecte~ had just ended his probation. The grievor had held a position at the Ministry since 1974 and worked in the payroll section. Prier to that, from 1971-1973, she . l' . r.. ,~ " 2 worked as a supply teacher and she used to be a teacher, she has a Masters of Education and a Bachelor of Science and Education. , . The issue before this Board is whether the parties are relatively equal and 'if they are, to award the grievor damages which amount to the difference in pay for the period of six months. The evidence that ,this Board heard is that the grievor's work has been excellent and . her appraisals uniformly excellent. The same is also true for the incumbent ~ho has had a total of one year experience. The employer setup a panel. The grievor's work record, based on uncontradicted evidence, is that she worked well with colleagues, she did a number of duties, she had performance I expertise, and her performance apprai~al'was excellent. She had no problems with computers and has first rate interpersonal relationships. She is always available and would tràin'employees including the incumbent in the job. Her education and cumulative experience gave her an advantage in performing the group leader job~ She could do all the work of the job posting for the promotion. In the performance tests set up by the employer~ the grievor was never asked any questions in regard to her responsibilities, she was never asked questions in regard to her job appraisals. The panel based its decision on a thirty minute interview and no consideration was given to work performance, inClUding the fact that the incumbent had initial difficulty in his jOb and relied on the co-workers, more especially on the grievor. & ----. ."~----- .- " -; , ' I .J \ 3 The incumbent had taken recent ~ourses in business, selling, marketing and communications, which would enable him to do well on the test. That is the only evidence that the incumbent is superior to the grievor. There is apparently, as far as the Board can make out, no evidence to suppOrt the competition results that he was more technically skilled. There was no evidence called by the Ministry that supported that conclusion. It seems to this ,Board a complete abrogation of managerial responsibility to rely, solely on a thirty minute interview ,to decide who should or should not get promoted without considering the work record ,and the skills and the recommendations for the " various people. It is in our vie~ re~arkable, that a person's work life should be distilled' into thirty minutes only and the rest of the 'person's work background should not be looked at. In our view, that ~akes the 'procedure flawed. Even in and by itself the rules of the test were laden with subjective judgment and even, if it were found to be appropriate, that test and how it was conducted, would not suffice. Counsel for the union outlined the flaws ' in the employer's procedure as follows: 1) Nobody met with the panel in r~gard to references. 2) No one involved with the process was aware of the -group leader's job. 3) They did not have the grievor's job appraisal which was ve~y positive. 4) The interview was the only determination as to who would get . '. .. , ~ ) 4 the job, the personnel files were available but they were incomplete. 5) If they had the grievor's appraisals they might h~ve raised some doubts about the references. - It should be pointed out that the grievor received an unfair reference ,from a supervisor who had been there a very short period of time. i 6) These references were used as a substitute for performance appraisal. 7) References from people who had known the grievor for a long time who were no longer on payroll, were given less weight than the references from her supervisor on payroll. 8) The references were skewed, part of it was heresay. When the panel' found that the references were contradictory, they, should have fou~d some reasonable way of resolving it. Finally, it, seems clear that the whole promotion was based on this thirty minute interview. There was ,considerable evidence from the panei members as to what they considered, but the Board is of the view that the proce~s was so skewed, that regardless of tr.e make-up of the panel, or its expertise ,or integrity, it was an improper way to decide 9n the promotion. In result then, the grievance succ~eds. -- The remedy in this case cannot be to give the griev~r the job or to have the panel reassess the situation since the time has long passed when that event took place. All the Board can do, as requested, is to award the grievor damages for her loss of pay in the interim, and the Board so awards. . ,.. ,~.. , " . , , I 5 I , ,I If there is any problem in regard to this matter, the Board ,I shall remain seized. DATED at Toronto this . d:;): Ú 1994. Gerald J. Charney, Q. c. hairperson IfP. ~1ym." (addendum attached) P. ~lym, Union Member ì ,"D. Montroselt D. Montrose, Employer Member "'-- \ \ , I '_n'_ -.. , j .,# , I GSB 0771/90 OPSEU (prommer) and Ministry of Community and Socia'l' Services'" _ . . _ ~ .. . " -: ...., --,-' ADDENDUM' OF' UNION NOMINEE I concur in the decision but find that I cannot let the situation pass without a comment regarding the extraordinary and inexplicable delay in the issuing of a decision. The grievance was filed on May 1, 1990, and final submissions were received from the parties on ~ay ~, 1991. Yet only now, in the fall of 1994, is a decision finally being,issued. I do not believe the parties or the arbitration process are being served well by ~uchan inordinate delay. ~ ~ Peter Klym. f '_ \ ,- ! I \ : . ..- -.,. , - .. -.¡ , -- '"TT-''f ¡'-'IIIIIi'