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HomeMy WebLinkAbout1990-1834.Cassell&Laugher.91-09-09- [ i'~' ' , " , '. ONTARIO EMPLOYES DELA COURONNE ; CROWN EMPL 0 YEES DE 1. 'ONTA RIO GRIEVANCE: C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ' 180 DUNDAS STFIEET WEST, SUITE 2 ~00~ TORONTO, ONTARfO, MSG ~Z8 TELEPHONE/TELePhONE; (4 ~6; 326- 1388 ~80, RUE DUNDAS oUEST, BUREAU 2100, TORONTO (ONTAriO/. MSG ~8 ~AC$IMILE/T~L~COPIE . (4~63 325-~396 1834/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Cassell/Laugher) Grievor - an~ - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE: W. Low Vice-Chairperson S. Urbain Member F. Collict Member FOR THE K. Whitaker GRIEVOR Counsel (Cassel) Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE L. Trachuk GRIEVOR Counsel (Laugher) Cornish Roland Barristers.& Solicitors FOR THE J. Gallagher EMPLOYER Staff Relations Advisor Human Resources Branch Ministry of Transportation HEARIN~ February 22, 1991 May 10, 1991 June 21, 1991 DECISION Arthur Cassell and Edwin Laugher have both grieved the results of a competition, ER89/48, for the position of Enforcement Officer - Highway Carrier at Ottawa West. These grievances have an interesting background. The competition was originally posted in the summer of 1989. It was for a bilingual position. At that time, the two Grievors, Mr. Cassell and Mr. Laugher, were denied interviews as neither was bilingual. They grieved in September of 1989. The incumbent, Mr. Brian Moore, was placed in the position in December of 1989. Mr. Cassell and Mr. Laugher's original grievances were settled and a consent order was made by Arbitrator Wilson of this Board on December 18, 1990, pursuant to which there was to be held a new competition for the. position. The position was not to be designated as bilingual for purposes of the competition and the eligible applicants.were to be Mr. Cassell, Mr. Laugher and the incumbent, Mr. Moore. In August of 1990 the competition was re-run, and Mr. Moore was again placed in the position. The Ministry's reasoning was that the candidates were relatively equal as to qualifications and ability, and that therefore seniority decided the issue. Mr. Moore's seniority date is September 14, 1970, Mr. Laugher's is June 5, 1972, and Mr. Cassell's August 15, 1974. Many of the facts are not in dispute. Mr. Laugher and Mr. Cassell have been Highway Carrier Enforcement Officers. since August 1978 and April 1976 respectively. Mr. Moore was a Driver License Examiner and had no experience as Highway Carrier 2 Enforcement Officer prior to being placed in the position for which the competition was posted. The jobinvolves enforcing a number of statutes relating to highway carriers. Mr. Cassell and Mr. Laugher had worked mainly out of a weigh scale but had spent some time working covering an area out of a Ministry car, and it appears to be'agreed that working'in an area is somewhat more difficult than .working at a weigh scale as reference resources are not as readily at hand in a car. The posted job was an area job. It is the contention of the Grievors thateach of them is demonstrably superior in qualifications and abilities to the incumbent, Mr. Moore. It is the contention of Mr. Cassell that he is demonstrably superior in qualifications and abilities to Mr. Laugher and~ought therefore to~b~..granted the position over Mr. Laugher notwithstanding Mr. Laugher's greater seniority, and it is Mr. Laugher's contention that he is relatively equal in qualifications and ability to Mr. Cassell but, as he is senior to Mr. Cassell in the service, that he ought therefore to be granted the position. It is the contention of both Grievors that the competition itself was seriously flawed. We are urged by the Grievors to so find and to place one of the Grievors in the position or alternatively to order the competition be re-run once again. We heard the evidence of Mr. Cassell and Mr. Laugher. Mr. Moore, though given notice of this proceeding, elected not to 3 appear. It is common ground that the job posted would have been a lateral move for either Mr. Laugher or Mr. Cassell, but that Mr. Moore was coming out of a different area of the Ministry entirely and had no experience at all as a Highway Carrier Enforcement Officer. Mr. Cassell started to work for the Ministry of Transport in April of 1986, after having spent approximately two years with the Ministry of Health. He was a Highway Carrier Enforcement Officer I from 1976 to 1977 at which time he was made an Enforcement Officer II, and in 1980 he was made an Enforcement Officer III. He has been stationed at the Castleman scales and reports to Gary Corcoran, the Area Enforcement Supervisor, who was a member of the Selection Panel. The position specification for the job posted was part of Exhibit 3 in this proceeding, and it was the uncontradicted evidence of Mr. Cassell that he performs all of the duties listed in the job description, which is essentially enforcing legislation relating 'to vehicle weights and dimensions, economic regulatory legislation, safety legislation, taking part in prosecutions for the Crown, and carrying out a public education function. Mr. Cassell is a Provincial Offences Officer and has had considerable experience over the course of the approximately 14 years leading up to the competition in question enforcing legislation, giving evidence in court, and indeed training new enforcement officers. In April of 1980, Mr. Cassell became the supervisor of the Castleman station, and has trained three highway carrier inspectors and has re-trained one. He was the person who trained Mr. Laugher and, significantly, it was Mr. Cassell who trained Mr. Moore for the four months between December of 1989 and March of 1990 after Mr. Moore received the appointment to the job posted under the competition with which we are.dealing. In 1983, Mr. Cassell qualified as a Driver Examiner. ~.He has also had staff inspector training, which is preparation for management. As well, Mr. Cassell has acted as a District Carrier Inspector from the ~period July 3, 1984, to September 1, 1984, and for a period of time was the co-ordinator for a public vehicles enforcement team for the Eastern Region, being Trenton, Lanark, ~!g~nquin Park and areas east of that, during-which time he carried out an educational function with operators. In June of 1989 Mr. Cassell was Acting Area Superwisor for Ottawa West. He has filled in for Mr. Corcoran, his immediate supervisor, during Mr. Corcoran's absences. The foregoing facts relating to Mr. Cassell's experience and qualifications were uncontradicted by any oral evidence called by the Ministry and were supported by the documentary evidence filed in this proceeding. Mr. Laugher has been an Enforcement Officer since 1978 and has been an Enforcement officer III at the Castleman scales 5 since 1981.. From 1972 to 1978 Mr. Laugher was a Driver Examiner° Like Mr. Cassell, Mr. Laugher also performs all of the duties set out under the job description in the competition posting. Mr. Laugher has, like Mr. Cassell, considerable experience over the years acting as an Enforcement Officer both at a weigh scale and on the road, and has also assisted in prosecutions. Mr. Laugher scored 97.5% in the C.V.S.A. test, the test upon which Mr. Cassell scored 93.5% and upon which Mr. Moore failed~ on the first attempt with a score of 67.5%, but upon which he achieved a score of 98% on November 17, 1989, on a second attempt at the test (after the date of the competition which is now being grieved). We received in evidence letters of a commendatory nature relating to Mr. Laugher's performance as a Highway Carrier Enforcement Officer, and it is clear from the uncontradicted evidence and the documentary material in support that Mr. Laugher was also a very highly qualified candidate for the job posted. Mr.. Dennis Guibord was called on behalf of the employer. Mr. Guibord was one of the Selection Panel of three. Mr. Guibord has no direct knowledge of the job apart from spending approximately one hour with Mr. Cassell and Mr. Laugher at the weigh scale. Mr. Guibord testified that the Selection Panel considered the results of the interview, the experience and ability of each of the candidates, the corporate files and the supervisory references. He testified first that the Panel gave equal weight to 6 all of the above parts of the process, but also testified that the Panel did not define which parts would have greater or lesser weight. He then testified that the Panel did not want to be bound by one issue carrying the weight of the selection process as one candidate might do very well on the interview, and that sometimes checks brought out matters that did not come out at the interview. Based on the evidence of Mr. Guibord in its totality, we find it impossible to conclude what weight was given to the various matters considered in assessing the candidates for this position. We also find it impossible to be confident that the weight for each part of the assessment was allocated in the same fashion for each candidate. Of considerable concern is the fact ~hat Mr. Corcoran, who had a considerable knowledge of the work of Mr. Cassell and Mr. Laugher, indicated to. the Selection Panel that there were letters of.commendation relating to Mr. Cassell which were not in the corporate file for reasons unknown. Mr. Guibord knew of the existence of such letters, but did not see the letters and the Panel apparently made no effort to track them down. His comment was that if there were letters favourable to a candidate in relation to performance of his job, then it was up to the candidate to see to it that such letters found their way into the file. We find this a startling proposition. The corporate file is the property of the employer and the employer, not the employee, controls its contents. We find even more startling the fact that 7 the Selection Panel were favourably impressed by some material in · Mr. Moore's personnel file, and while knowing of the existence of favourable material in relation to Mr. Cassell, did not complete their investigation by attempting at least to locate that material and to take the contents into consideration. In our view, this alone flaws the competition, but only to the extent that it did so in favour of Mr. Moore and to the detriment of Mr. Cassell. The Grieuors have also challenged the merits of the interview in assessing the qualifications and abilities of the candidates. It was Mr. Guibord's evidence that the questions on the interview were intended to assess the candidates' communication skills, interpersonal skills, problem analysis skills, decision- making capabilities and general knowledge. Equal weight was given to each question, and the candidates were scored on a scale of five ranging poor, fair, good, very gobd and excellent. The scoring for each candidate 'on each question was done consensually and each candidate's score was tallied in the end to compare the number of questions whose answers were rated above good, those rated good or better, and those rated very good or better. On the interview, Mr. Cassell was the leader as he had nine answers scored above good, whereas Mr. Laugher had six and Mr. Moore had seVen; Mr. Cassell had eleven answers rated good or better, whereas Mr. Laugher had ten, and Mr. Moore had ten; and Mr. Cassell had seven answers rated very good or better, whereas Mr. Laugher had five and Mr. Moore had six. As there were only 12 questions on the interview, and 8 assuming that each was rated equally, we are inclined to find that the differentials as set out above are significant. Objection is taken to the fact that scoring on the interview was by consensus. We see. no flaw in principle in consensus scoring in the absence of evidence that the method was not employed in good faith and that it was used to manipulate the result. As pointed out in the lengthy discussion of the subject in Palatino/Rogers/Patterson 1968/89, 1970/89, 1972/89, consensus scoring per se is not indicative of a procedural flaw in the competition process unless exercised unfairly. 'In the instant case, no evidence was led to indicate that the method of scoring was used in bad faith or unfairly and we do not find that the competition was bad on that ground. The Union also challenges the utility of the questions on the interview in assessing the relative ski~ls and abilities to perform the job in question. It is the argument of the Grievors that some of the questions are.either not pertinent or are of such general nature that they cannot usefully assess the relative ~kill~ of the candidates against those skills required for the position. We agree with this' proposition. For example, question 2 is: "The Ministry includes a number of 'groups' in its employment equity policy. Name these groups please." In our view, this q~.estion might be useful in assessing a candidate applying for a position in human resources, but is not particularly pertinent to the skills and knowledge required to enforce highway 9 carrier legislation. Question 4 is: "During the course of your employment, you are required to work closely with an individual whose ethnic, religious and cultural background and beliefs are dramatically different than yours. How would you handle the situation?" And Question 5 is: "Given the social climate of this country today, why do you think we would ask the previous question?" In our view, these questions may be useful in measuring the general level of knowledge and perhaps the desirability of an employee at large, but are not germane to the specific requirements of the job posted. We would make the same observation with respect to question 7, which asks the candidate to indicate what he will do to alleuiate or control the amount of stress inflicted on him by his job. In our view, questions 2, 4, 5 and 7 in the interview portion of the selection process ought not to be accorded the same weight as the other questions in the interview. In the result, however, all three candidates scored equally in questions 4, § and 7, but Mr. Moore was given an excellent rating for question 2, whereas Mr. Laugher was given only a "good" rating, and Mr. Cassell a "very good" rating for question 2. To the extent then that these questions were not useful in weighing the relative skills of the candidates, the result tended to favour Mr. Moore over the Grievors, and we are of the view that his final score should be accordingly discounted in assessing the actual qualifications for the position. The most salient fact, however, pointing to the 10 conclusion that the wrong candidate was appointed, is Mr. Guibord's concession that a person who could step into the job and startLto perform it without further training is better qualified than someone requiring overseeing. Both Mr. Cassell and Mr. Laugher could step in and immediately perform the job, while Mr. Moore needed overseeing. Mr. Guibord was asked on cross-examination: "what is the best experience for the position?", and only after considerable avoidance ultimately answered that having done the various aspects of the job satisfactorily was the best experience. We note two other factors: firstly, Mr. Guilbord's comment with respect to the Selection Panel's assessment of the candidates on the interview that "we were aware that Mr. Moore had less experience and that might have affected his answers"; and secondly, that the supervisory checks were obtained only from Mr. Corcoran in the case of Mr. Cassell and Mr..Laugher, whereas two checks were obtained on Mr. Moore, one from a Mr. E.G. Lerocque, his supervisor, and the other from Ken Henderson, a peer of Mr. Moore. The Panel did not obtain checks from peers of Mr. Cassell and Mr. Laugher, nor did it obtain an evaluation of Mr. Moore from Mr. Corcoran. Regardless of the merits or demerits of seeking reference.checks from peers, we regard the lack of an even handed treatment of all candidates in the selection process to be indicative that the process was flawed. Furthermore, the supervisory checks in this case were susceptible to inconsistency in result. They called for ratings in a number of areas from 11 "poor" to "excellent" from the assessors. Obviously, what one assessor might consider to be a good performance rated at 4 might be considered either better or worse and therefore rated a 3 or a 5 by a different assessor. In order to make this type of rating perfectly fair, the ratings ought to come from one assessor only, and this was not the case. As a practical matter, it will frequently be impossible to carry out this type ~of supervisor's rating in a perfectly fair manner as candidates may be supervised by different persons. In such cases, the selection panel ought to receive supervisors' references as the relatively subjective assessments they are rather than attributing to them the capacity to quantify a candidate's past performance with any degree of reliability. As to the performance of Mr. Moore on the interview, the Panel's note on Mr. Moore was: "Appeared somewhat more nervous but was still composed - rambled - got disorganized in answer and hence had to 'repeat many questions - but eventually got most answers - probably since less experienced - wider range in quality of answers but good answers considering experience in present job specifically". The comment on Mr. Laugher was: "Appeared calm - thought out his answer - showed organized thinking - no notes whatsoever - listens - some repeating - some rambling". The comment with respect to Mr. Cassell was: "Appeared calm - answers concise - very brief - organized thinking process - listened well to question - little or no repeating - pause before answer - more 12 consistent in ratings - interviewed much quicker (25 plus or minus minutes versus 65 plus or minus)". On the .basis of the recorded comments, it is our view that the Selection Panel was making allowances for Mr. Moore in assessing his performance overall, and in our view this is not a legitimate exercise of the mandate of the Selection Panel, which is to choose the best candidate on the basis of their respective qualifications at the time of the competition, and not on the basis of their qualifications as they might eventually become. On the basis of the evidence we heard relating to the relative qualifications, experience and abilities of the three candidates, we are of the view that both Grievors were clearly superior in qualifications to the incumbent, Mr. Moore, and to that extent both grievances should be' allowed. We find also that the competition was flawed but not to the extent that it did not · evaluate the relative merits of the candidates at all. The competition was flawed only to the extent that it was administered in such a manner as to favour Mr. Moore, and it is unjustifiable that the employer should have awarded the position to Mr. Moore in light of the interview score and the employer's admission that the best experience for the job was prior satisfactory performance and that the superior candidate is the one who can step in and immediately start to perform. Mr. Moore was not relatively equal to Mr. Laugher or to Mr. Cassell in either of these respects. 13 Counsel have addressed argument to the issue that the Consent Order made by Vice Chairman Wilson did not expressly stipulate that the experience acquired by Mr. Moore between his Being placed in the position and the date of the second competition was to be disregarded for purposes of the second competition. This Board's assessment of the conduct of the competition can only be on the basis of what the Selection Panel considered, which appears on the evidence to have comprehended the on-the-job experience gained by Mr. Moore. In the circumstances, taking into account Mr. Moore's tenure of the position prior to the re-run of the competition also requires us to consider his failure on the C.V.S.A. test which also took place during that time span. Were we notionally to wipe clean Mr. Moore's slate of experience, his interview results would have to be completely re-evaluated. This is not a practicable venture for this Panel to embark upon, and in the circumstances it is unnecessary for us to do so for purposes of deciding the matter. In reaching our conclusion, we have considered the interview results as we find~them, and while the C.V.S.A. score is a factor which cannot be ignored, we do not consider it to be more than a factor among many pointing to the overall superior qualifications of the Grievors, even taking into account Mr. Moore's experience as gained in the interval between original placement and the re-run competition. 14 As to the competition as between Mr. Laugher and Mr. cassell, there is no evidence that the competition was unfairly administered as between the two of them except insofar as there was known to b~ missing material from Mr. Cassell's personnel file which was commendatory in nature and which may have assisted Mr. Cassell. The Grievors have also indicated to the Panel that it is their preference that we make the determination either that they are relatively equal, in which case Mr. Laugher, being the more senior in the service, would be entitled to the position, or alternatively that Mr. Cassell is demonstrably superior in qualifications and abilities, in which case we are entitled to award him the position. There is no dispute that we have the jurisdiction so to do. Based on the evidence which we have heard and the documents filed as exhibits, we are of the view that Mr. Cassell's qualifications, ability and experience are demonstrably superior, and for that reason we find that he ought to be awarded the position. Mr.. Cassell's score on the interview portion of the competition was in our view significantly higher than that of Mr. Laugher, and the totality of his experience, including his acting experience as supervisor as well as his experience training new officers indicates that he has not only been successful and commendable as a Enforcement Officer III but has been considered and treated by the employer as of management calibre. While Mr. Laugher is also an excellently qualified candidate, and while we are mindful of the test in applying the seniority provisions of the Collective Agreement that there must be a clear and demonstrable superiority on the part of one candidate over the other, we do find in the circumstances that onus has been met by Mr. Cassell, and an award will go accordingly that Mr. Cassell be placed in the position retroactively to September 1990. DATED this 9th day of September , 1991. STAR URBAIN