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HomeMy WebLinkAbout1991-1097.Henderson.92-03-31 ~.~ : ONTARIO EMPLOYES DE LA COURONNE '~'~'i~ CROWN EMPL 0 YEE$ DE L 'ON TA RIO GRIEVANCE COMMISSION DE SETILEMENT R/=GLEMENT BOARD DES GRIEFS ' 180 ,DUNDAS $'F,~IEET WEST, SUITE 2100, TORONTO, oNTARiO. MSG iZ8 TELEPHONE/TELEPNoNE: (4 tS] 326- ~388 'I$0, RUE DUNOA5 OUEST. BU~EAIJ 2~00, TORONTO (ONTAF~iO). M5G 1Z$ FACS,~t..4fLE/TEL~coP.~E . {4~,5~ 32E~ I-t96 1097/91, 1269/91 IN TH~MATTER OF ANARBITEATION Under THE CROWN EMPLOYEES COLLECTIFE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Henderson) Grievor. The Crown ih Right of Ontario (Ministry of citizenship) Employer BEFORE: A. Barrett Vice-Chairperson J. Carruthers Member D. Clark Member FOR THE C. Dassios GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE S. Patterson EMPLOYER Counsel Legal Services Branch Management Board of Cabinet HEARING November 25, 1991 January 8, 16, 1992 After nearly twenty years service with the government, the grievor was declared surplus to requirements effective December 1, 1990. (This date was later extended to December 31, 1991 due to an illness.) Mr. Henderson was a contracts and grants advisor with the finance and administration branch of the Ministry of Energy when he was declared surplus. Once an employee is declared surplus the provisions of article 24 of the collective agreement come into pIay. Apparently no similar or appropriate vacancy could be found for Mr. Henderson in his Ministry, either within or without a- 40 km. radius, thus a search was made to find him a. job in another Ministry pursuant to the provisions of article 24.'2.3 which is set out below: 24.2.3 Where an employee has not been assigned in accordance with sub-sections 24.2.1 or 24.2.2, he shall be assigned on the basis of his seniority to a vacancy in another ministry within a forty (40) kilometre radius of his headquarters provided he is qualified to perform the work and the salary maximum of the vacancy is not greater than three percent (3%) above nor'twenty percent (20%) below the maximum salary of his classification, as follows: - a vacancy which is in the same class or position as the employee's class or position; - a vacancy in a class or position in which the employee has served during his current term of continuous service; or - another vacancy. In May, 1991, a vacancy arose'in the Ministry of Citizenship, for a Human Rights officer 2 in the Toronto office of the Ontario Human Rights Commission. Mr. Henderson was 2 invited to apply for the job before it was posted, in accordance with the priority granted to surplus employees pursuant to article 24. Mr. Henderson. applied for the job, was granted an interview by a two-person selection committee, and was denied the job on the grounds that he did not have the minimum · qualifications for it. Thus this grievance arose. Ms Elizabeth Jeffrey set out the.reasons for denying Mr. Henderson the job in a memo to the redeployment officer of the employees services branch dated June 7, 1991, as follows: Mr. Brian Henderson wa~ interviewed for the above position on May 28, 1991 by a Selection Board comprised of Patrice Mackenzie, Regional Manager, Toronto Central and myself, Elizabeth Jeffrey, Human Resources Consultant. The attached Selection Criteria outlines the .areas on which Mr. Henderson was evaluated on during the interview.' It was the unanimous decision of the board that Mr. Henderson did not demonstrate the knowledge, skills and related experience required of the position. The essential areas for.this position are investigation/conciliation/mediation skills, excellent knowledge and understanding of the dynamics of discrimination. Knowledge of key human rights issues and their impact on complainant groups (ie. minorities, women, handicap persons). Although Mr. Henderson was responsible for investigating, resolving disputes and grievance handling during his tenure with OPSEU, Mr. Henderson demonstrated very limited knowledge of the investigative/conciliation process. This position requires an individual with strong investigative/conciliation skills; experience in resolving conflicts and negotiating issues with a variety of groups. In addition, Mr. Henderson displayed no appreciation of human rights issues (eg. accessibility, accommodation, etc.) For example', he could not outline major human rights issues in the province nor an understanding of the commission's role in addressing these issues. / Mr. Henderson's preparation for the interview provided him with a grasp of what the Commission does and an awareness of the grounds of discrimination and the areas where they apply. The necessary skills and knowledge required of the Human Rights Officer 2 level would'be acquired incrementally through experience gained by working with complainant groups (eg. minorities, handicap persons, etc.) with respect to a broad range of issues. The position requires skills in investigating and resolving complex human rights issues that may have an impact province wide. For the above reasons I would like to request that clearance be given to proceed with the competition for this vacancy. The union attacks the employer refusal to grant Mr~ Henderson the job on several grounds. First of all, the interview panel relied entirely on the results of an oral test, on which Mr. Henderson scored 48.5 out of 100, to find him unqualified.. They did not review his personnel files or ash his supervisors for references. The union relies on Poole GSB 2508/87 and many other cases decided by this Board setting out the criteria to be employed to run a fair and meaningful job competition. Failure to review personnel files and request supervisors' evaluations has usually been found to be a flaw in the competition process, sometimes a fundamental flaw, requiring a re-run of the competition, or in rare ca~es, the granting of the job itself by the Board. To this objection, the Ministry responds that Mr. Henderson did so poorly on his test that no review of personnel files or chats with supervisors could have saved him. Secondly, the union argues that the phrase' in article / 24.2.3 "qualified to perform the work" must be interpreted broadly if we are to give any real meaning to the purpose and. intent of the article. A surplus employee doesn't have to compete for the Job; he must simply show that he has minimum competence in all requirements of the job in question (Loebel GSB .331/82). Union counsel also argued that a further aid to interpretation of article 24.2.3 can be found in memoranda sent to all ministries by the Chair and Deputy Minister of Management Board of cabinet in December 1990 advising them of the importance and urgency of placing employees who have been declared surplus. The ministries were advised to g~ve surplus employees "every advantage and opportunity.to be placed in a new position" and be cognizant of "the role that retraining and extensive orientation can play" in opening up jobs for surplus employees. The union refers to Hill and Campbell GSB 4'92/83 as authority for the proposition that the interviewers should exercise a higher degree of care in'~xploring surplus candidate's' possibilities than they would in an ordinary job competition case. At page 15 of the award, the Board, chaired'by Mr. Roberts said: The grievors were surplus employees and were entitled to be evaluated as such. In making such an evaluation it would seem appropriate to expect the interviewers to have made every reasonable effort to ensure that they had before them all relevant information bearing upon the qualifications of the grievors to perform the work. Because the evaluation was conducted within the context · of the job security provisions of Article 24 of the collective agreement, it does not seem unreasonable to expect interviewers to have exercised a h~gher degree -- of care in this regard than in the case of a competition under Article 4. An application under article 24 of the collective agreement involves a very serious determination. It is not a case of promoting a government employee who already has a job. It is the case of finding a job for a government employee who, through no fault of his or her own, no longer has.one. We heard extensive evidence from Mr. Henderson at our hearing about his background and experience and how it qualifies him for the job. Much of this evidence was not known to the interview panel because Mr. Henderson did not volunteer it at the time, although the questions he was asked would have given him an opportunity to do so. The union urges us, On the basis of this evidence, to find that Mr. Henderson has the minimum qualifications for the job and to appoint him to it. No other ° witnesses were called on behalf of the grieVor, nor were any personnel evaluations or references put in evidence. Therefore we are being asked to do the job that the interview panel should have done, but still without the evidence that union counsel insists the interview panel should have had. We are asked to draw the inference from Mr. Henderson's own evidence that a review of personnel files and reference checks would have revealed Mr. Henderson's talents and experience in dealing with human rights issues. At the hearing we heard testimony from Ms Patrice McKenzie, the manager of the Toronto office of the Human Rights Commission and Ms Jeffrey, the human resources consultant who wrote the June 7th letter reproduced above. Ms McKgnzie, who is 6 the direct supervisor of the position in question, said that the Human Rights Officer must have highly developed and highly sophisticated investigative and conciliation skills. Most Human Rights Officer 2's are hired from the ranks Of Human Rights Officer l's, with only the occasional person hired from outside the Commission, usually from a related position such as an employment standards investigator. The incumbent must have innate good judgement, tact and communication skills. Each'human rights case is handled from its inception as if it were being prepared for a Board hearing, while at the same time every effort is made to find an accommodation or settlement somewhere along the way. A strong background in collecting and assembling and analyzing evidence is essential. The questions on the oral test were designed to assess suitability for the job in four distinct areas.. The first area was 'related experience, training and knowledge'. Mr. Henderson did pretty well on this part of the 'test, demonstrating that he was aware of many of the grounds of discrimination covered by-the Human Rights Code and that he was aware of the role of the Human Rights Officer. The next group of questions was designed to test the candidate's investigation/conciliation experience and was worth 40% of the total score. Mr. Henderson scored very poorly'in this section of the test. He demonstrated a lack of knowledge of the type of evidence that should be gathered in specific case scenarios and of the type of evidence in general one-would gather / 7 in any investigation. The next part of the test. was.designed to measure sensitivity and understanding of human rights issues, for 30% of the marks. Not only did Mr. Henderson fail to achieve a passing grade on this section of the test, but he gave surprisingly insensitive answers to the questions. When asked to identify the major human rights issues in the province, Mr. Henderson responded that he felt the major issue was a media driven backlash against human rights itself. Mr. Henderson said: "I'm tired of hearing about Sikhs and turbans and Police Act changes". When asked how the Human Rights Commission should address the major human rights issues, Mr. Henderson responded: "it's not the rights you have, but 'the rights you believe you have .... poor white males are an endangered species these days .... poor-white anglo saxon males like me are becoming extinct". In response to a question about what he believed to be the most effective methods of achieving conflict resolution, Mr. Henderson said, in part: "The parties must know who is chairing the meeting. It is my damned meeting not the respondent's or the complainant's meeting. We are here to enforce. We are in a position of Dower". The next section of the test designed to measure communication/organization/analytical skills Was worth 25% of the marks and again Mr. Henderson failed to achieve a passing grade. Again he showed a surprising degree of insensitivity. In response to the question "What do ~ou find interesting about this / position?", he told the interviewers that the question was inappropriate for a surplus employee. Then he went on to say: ~"This is a field of interest to me for quite some time. Why? Enlightened self interest - I require, hell; I demand that I be treated as an equal. If'I demand that for myself.then it should be offered to everyone in the.province .... I am a white anglo maleo I-have not experienced discrimination. I don't really know how discrimination feels, but as a white anglo male' I have something-to co~tribute to other white males. Employment equity in the workplace is not something other white males should fear". Mr. Henderson was asked at the hearing about some of the above-quoted responses to the questions asked of him on the interview. He said that he still doesn~'t believe the use of the words damned and hell were too strong, even though Ms McKenzie found them inappropriate and offensive. He said he would not talk to members of the public like that however. He did not really wish to change any of the answers that he gave on the test but felt there was more he could have told the interview panel about his background and experience in human rights that would have assisted him in getting a higher score on the test. He didn't think to mention those matters at the time, but now feels they are relevant and should persuade us of his suitability for the job. In the t970's when Mr. Henderson was working on a farm tax reduction program, he had his first experience with minority participation .in the work force when he was required to supervise / - 9 20 Ugandan refugees. It t~rned out that the refugees were divided amongst themselves along religious, lines and did not want to work as a cohesive team. At first Mr. Henderson attempted to accommodate their differences, then realized'that pandering to prejudice was no way to fight it. He ended up having a series of meetings with each sub group to persuade them that there was strength in numbers and that they were "all in the same boat together". Eventually, he organized a baseball game which helped mutual understanding. For three months in 1990, Mr. Henderson was the acting employment equity coordinator in the Ministry of Energy. He had no training for the position. In the job.he was instrumental in gaining approval for expansion of wheelchair accessible washrooms at 56 Wellesley Street. He nas also responsible for delivering equitable employment practices seminars to managers to teach equitable hiring practices. In these seminars Mr. Henderson taught from guidelines prepared by Human Resources. He said that this was his first in-depth review of human rights legislation. He also lobbied to obtain funding for an employee equity job and advertised it in such a ~ay as to avoid staff backlash. On behalf of the union he sent a lettar advising all employees that the position was not a complement position, and therefore hiring for it did not violate the job posting provisions of the collective agreement. Mr. Henderson mentioned this position in his interview and it was also included on his resume which was reviewed by Ms McKenzie prior to. the interview. / 10 Mr. Henderson was also local president of OPSEU for about ten years.during which time he spent 11 months as a full-time staff representative. He .handled grievances up to the second stage meetings, guided by a check-list prepared by the union. He said that he attended seminars on human rights issues at union conventions and was a member of the bargaining team that fought to have human rights language included in the collective agreement. Mr. Henderson said that he also dealt with incidents of discrimination amongst union members. At one time there were two transsexual members who were made to feel unwelcome at union meetings. He took both transsexuals aside and gave them the same talk he gave the Ugandan refugees about everyone working together for the common good. As a result, one person is now well accepted and the.other is not. When Mr. Henderson was a staff representative'in 1990, he had three human rights cases to deal with. In one, a female employee was being.sexuallY harassed by other bargaining unit~ members when she was working in a traditional male job. Mr. Henderson spoke to the offenders, emphasized the unfairness of their conduct, and was able to arrange for a two day training course in sexual harassment for all members on the unit. The female employee decided to transfer to a more traditional female job. In a case of racial discrimination, a supervisor was alleged to have called a bargaining unit member a "black bastard". Mr. / - 11 Henderson investigated but found no witnesses, and the alleged perpetrator refused to discuss the matter with him. At that point, Mr. Henderson felt he could do no more and closed his file. There was another case of a racialily motivated assault which Mr. ~enderson investigated for two weeks before handing the matter over to the police. As an example of his negotiating skills, Mr. Henderson testified that he helped negotiate a compressed work week within the Ministry of Energy. The issues we must determine about this additional evidence that was not known to tSe interview panel are: First, would this information have been'included in personnel files and reference checks if the interview panel had explored them? Secondly, would this information have made a substantial difference in the overall grading of the candidate had Mr. Henderson expressed it in his interview? With respect to the first question, we have some doubt that that sort of detail would be contained in personnel files or~ through reference checks. Certainly Mr. Henderson produced none at the hearing and we think he would have done so if they contained information which would assist his case. Next, we cannot see how this additional information would have substantially changed the interview score or the panel's decision that Mr. Henderson was not qualified for the job. The additional evidence we received at the hearing related to the first section of the test designed to evaluate related experience, training and knowledge. Mr, Henderson scored 1t out of't5 on this section of the test which is well over the 65% overall passing grade deemed acceptable by the committee. It was not Mr. HendersOn's related experience, training and knowledge that rendered him unqualified for the job. It was his lack of sensitivity to human rights issues and his lack of sophisticated investigative and conciliation skills. We were not persuaded from the testimony of Mr. Hendersbn that the test results were not indicative of his Skills and abilities in the mandated requirements of the job. Article 24.2.3 is not a job competition article and it is clear that surplus employees need only have the minimal qualifications to perform the essential duties of the position. This is clear from the wording of article 24.2.3, and the jurisprudence of this board, and the memoranda from Management Board of Cabinet referred to above. This does not mean, hoWeVer, that a new lower standard of what it means to be qualified has been introduced into the collective agreement. 'Article 24.2.3 speaks to present qualifications, not those that could be obtained through extensive training~ With extensive training, an electrician Could become a plumber and a plumber.could become ~an electrician. Neither has the present qualifications to perform the other's job. Training of a Human Rights Officer 2 is done on the job and lasts from six months to one year, but it is not 13 classroom training. It must be done on the job and in the context of a huge backlog of cases and very pressing time demands on all staff members, both managerial and bargaining unit. The incumbent in this position must have a minimum level of competence from the outset because he must be deployed on the job from the outset. This is not a case like Hill and Campb~l!, (supra) where an immediate full-time ten week training course was provided to inc,.3mbents and one of the grievors appeared eminently qualified to benefit from the course. Nor is it a case like Pool9 (supra) where the interview panel relied doggedly on test scores, blinding themselves to the far superior background, skills and qualifications of the grievor which were fully evident / in her resume, .and would have been further evident through a search of personnel records and references. We cannot say as the Poole panel of the Board said (at page 7) that the "total reliance on the interview as an information gathering and scoring tool resulted in an assessment of the relative merits of the candidates which had no real basis in fact". Surplus employees under this collective agreement are to be given extra consideration when applying for jobs. It does not seem unduly onerous for a selection panel to review.personnel files and speak with supervisors during the selection process. When a selection panel declines to do this, it runs the risk of a grievance arising and a panel of this Board finding that the information gleaned from those personnel files and reference checks would have made a real difference in determining whether 14 or not the candidate was ~alified for a job. In this case, the risk was ~ and the grievance came to be heard by us. However, we cannot find on all of the evidence that the selection panel erred in finding ~. Henderson un~alified for the job. Accordingly the grievance is dismissed. Dated aC Toronto, ~his 315t day'of March, I992.  HERS, Member D. CLARK, Member