Loading...
HomeMy WebLinkAbout1990-1396.Grant.91-10-01 '\ ~ ,'õ ~.\ ONTARIO EMPL0 YÈS DE LA COURONNE \ ~'\ ".",,.,,":; CROWN EMPLOYEES DE L'ON TA RIO ',. f.-:··~ GRIEVANCE CpMMISSION DE 1111 SETTLEMENT REGLEMENT BOARD DES GRIEFS -~ 180 DUNO.....S STREET WEST, SUITEE 2100, TORONTO, ONTARIO. M5G lZ8 TElEEPHONEEITÉLÉPHONE: (416) J26-IJ88 180, RUE DUND.....S OUé~T, BURE.....U 2100, TORONTO (ONTARIO). M5G lZ8 FACSIMILEITÉL!!COPJE: (416¡ J26-1J96 1396/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT -Before '1'BE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Grant) Grievor - and - The Crown in Right of Ontario (Ministry of Revenue) , ' -, - Employer BEFORE: A. Barrett Vice-Chairperson J. Carruthers Member M. O'Toole Member -, FOR·'1'HE K. Whitaker GRIEVOR Counsel Ryder, Whitaker, wright & Chapman , Barristers & 'Solicitors FOR THE K. Cribbie EXP.LQYER Labour Relations Officer Personnel Services Branch .J Ministry of Revenue DARING September 4, 1991 . "- . 'L ,l- t . ~ , .- 1 - This is a job competition grievance·da~ed April 27, 1990, wherein the grievor says that she should have been selected for the position of Correspondence and Enquiry Clerk In the accounts section of the Corporations 'rax Branch of the Ministry. The successful incumbent, Karlan Stoddard, "Tas notified of the hearing date and of her right to attend the hearing and to participate fully in it, with or without counsel, but she did not attend ~he 'hearing, nor did anyone on her behalf. The grievor's seniority date is July 1985 and the incumbent's seniority date is December 1986. This is a case where the seniority date is important because it is conceded by the Ministry that the grievor and the incumbent were relatively equal in abilities and qualifications for thEf job. When the selection committee came to choose between thesE! two top candidates they factored in the attendance records of the grlevor and the incumbent, and the likelihood of their future regular attendance as the "tie-breaker." I 1- .... ? '; I \ - 2 - test rather than individual scoring of each question for eacþ candidate. . That method of scoring has been frowned upon b¥ this Board as creating a potential for one member of the panel to dominate the others or for thér~ to be "horse t.rading" among panel members with respect to particular questions (see Eadie GSB #766/88 (Devlin) anò the cases discussed therein) . 'Also, some of the grievor's scores on individual questions are hard to unders't and when compared with the incumbent's answers and 'Che model-· answers prepared by the committee. ' -In particular, on question 27 Ms. Stoddard scored 10 while the'grievor only scored 2, although their answers look very similar to us, and very close to the model answer as well. . From sUbstantive'pbint , union '-challemges a of view the the selectio-n committee's' failure to sufficiently weigh the . grievor's related experïence as an interest and penalty assessor for five years, a knowledge of which is fundamental to the job of correspondence and enquiry clerk. - . More significantly, from our point of ' view at least, the union challenges the way in which attendance was used as the tie- breaker when the top two candidates were found to be relatively equal in all other respects. Ms. Riley, the chairperson of the selection committee and the immediate supervisor of the job in question, testified that the I . - 3 - , I I , " accounts section employees in general have pretty poor attendance I standards, and that all superviBory personnel were inst.ructed 10 1989 to work diligently at correcting the problem. There are only I nine correspondence and enquiry clerks, :four of whom work on the I telephones virtually all day long. If one of them is absent there is serious additional strain on the remaining three who must still answer the same number of inquiries from taxpayers. It ~s inefficient to have a second clE~rk deal 'wi th follow-up inquiries from a taxpayer who was initially dealin.g with an absent clerk, causing unnecessary duplication of effort and creating back-logs elsewhere. Ms. Riley also testified that unexpected one-day absences are harder to cover for than longer predictable absences where adequate coverage can be arranged. I When the selection committee determined that the grievor and Ms. Stoddard were relatively equal ~n abilities and qualifications they then did reference checks on each of them. Again they "Were shown to be relatively equal. Then they turned their minds to the. attendance issue. =: t is to be not.ed that regular attendance was not specified as a qualification on the job posting nor was any candidate asked about it in his or her interview. Attendance records were cu11E~d and it appeared that both Ms. Stoddard and Ms. Grant were on the high-use list for sick leave. In 1989, the most recent full year prior to the competition, Ms. Grant was absent 38 days and Ms. Stoddard 78-1/2 . , ~ J .~ , I , I - 4 - days. The year prlor Ms. Grant was absent 76-1/2 days and Ms. Stoddard was absent 27-2/3 àays. By the time of the compet.ition in March 1990 Ms. Grant had been absent 7 days spread out over'SlX occasions and Ms. Stodàard had been absent only 1 day. Ms. Riley happened to be Ms. Stoddard's immediate supervisor at the time - because Ms. Stoddarà was aCl:ually working at .the job on a secondment basis. Ms. Stoddard had confided in Ms. Riley that she was very worried about the effect of her absences on the unit. She had had a back operation in 1989 which accounted for the large amount of absenteeism then, but her back seemed to be much-improveå with regular physiotherapy anà Ms. Riley felt she had good prospects for regulai attendance in the 'future. - Ms. Grant's immediate supervisor, Ms. Cassidy, was also - - on the selection committee. She told t.he other members that she .1 ! didn't really have a satisfactory explanation for Ms. Grant's frequent short absences. She knew that there was a serious eye - problem in 1988 which accounted for the high level of absence that " . year, but that problem was apparently corrected and she felt she didn't have a sufficient explanation for the more recent absences. Many of the more recent one day absences occurred on Mondays or Fridays which rang alarm bells in the minds of the selection committee members. ( . .- I , . .- 5 - I The gr~evor testified, and was not challenged on the fact, that she had never been spoken to about her absenteeism, had never been asked to explain her absencE!s to her supervisor or to an attendance review commi tteE~, and had often provided doctors' notes indicating the reasons for her absence. She testified that after the eye problem was corrected in 1988 the absences were mainly due to job-related stress for which she was under treatment by her family doctor and late~ a psychiatrist. She testified that the absences were jOb _ related only ~n tha't she was having difficulties with two particular supervisors, but the job itself dealing with the taxpayers was not stre:ssful. She said that the difficUlties with management were now :::orrected. None of these assertions on Ms. Grant's part were challenged in cross-examination or by the introduction of evidence to the contrary by the employer. No doctors' no'tes were proãuced at the hearing by either party. In any event, the panel concluded that Ms. Stoddard had the better prognoS1S for regular attendance J.n the future, thus making her the superior candidate and they awarded her the job. Seniority was not considered because the two candidates were found not to be relatively equal when prospects for regular attendance were considered. Al1:hough the panel found Ms. Grant's frequent absences unexplained and suspiciou~ they did not give her any opportunity to respond to their concerns, nor did they let her know that absenteeism was a concern at all. This is not fair. At the .. ~, ~ - 6 - I "1 I .very least when the prospect of regular attendance became the tie- breaker qualification, Ms. Grant should have been told how important it was and should have been given an opportunity to explain herself. More properly, the necessity for regular attendance should have been noted on the job posting 50 that the candidates would be aware of it and be prepared to respond to the ~ssue. - With respect to the procedural flaws in the competition, in particular the consensual scor~ng, we do not think on the evidence that the results would have been very different if the errors had not occurred. We bel~eve the grievor and the incumbent would still have been found to be relatively equal. We would not set aside the competition for this reason alone. However, the manner in which the committee dealt with the attendance issue was,seriously flawed and seriously affected the grievor's chances of getting the job. She should have been alerted to the issue and she should have been given an opportunity to - respond to it. While with the employer that regular we agree attendance is a valid qual if ica tio'n for the job, as we expect it is for most responsible jobs, we cannot agree with the manner in which it was brought in through the back door in thisccompetition. . - 7 - ! .' } ~Je äo not Know on the eviòencE: wheï:.her Ms. Grant's frequent absences are capable of a satisfactoyy explanatjon or not. Accordingly, the grievance must succeed and the . competition must be re-run bet...een these two candidates onl'l. l-. fresh selection committee should be empanel led and they must discount the incumbent's experience In the job s::..nce the competition when weighing her merits. If the grievor is successful In the - competition, she shall be grant€!d wages and bene'fi ts retroactive to the original date when the job was awarded. We will remain seized of jurisdiction in the event there lS any difficulty implementing the award. DATED at Toronto, this 1st day of October, 1991 . ~:~~ft: . " rt . ft°~ ~ \ .' CARRUTHERS. Member ??1c -at (~l,¿;JÁ-_ l. O''1'oole, Member \/ .