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HomeMy WebLinkAbout1991-1981.Vandevalk.94-03-03?80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARtQ, MSG 1Z~ TELEPHO~qE/T~'L~RHONE: (416) 326~T 180, RUE DUNDAS OUEST, ~UREAU 2~00, TORONTO {ONTARIO). MSG IZ8. FACSIMILE/T~££COPIE : ~4 ~6) 326-1 1981/91 IN THE MATTER OF ~NARBITR~TION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV/%NCE SETTLEMENT BOARD BETWEEN OPSEU (Vandevalk) Grievor - a~d - The Crown in Right of Ontario (Ministry of the Environment) Employer BEFORE: W. Low Vice-Chairperson E. Seymour' Member M. O'Toole , Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright , Barristers & Solicitors~ FOR THE K.'O'Shea EMPLOYER Central Ontario Industrial Relations Services HE~RIN~ ~pril 16, 1993 January 21, 1994 DECISION This grievance had its origins in 1989 when Henry Vandevalk grieved the result of a competition for the pos/don of senior operator at. the Clarkson Sewage Plant. At the COnclusion of the hearing of the original grievance, an order was made by this Panel that the competition should be re-mn with a new panel, that it be restricted to the'incumbent Mr. Martin D'Cruze and the Grievor Henry Vandevalk, and finally that neither candidates' experience since the original competition shall be taken into consideration. The award was issued May 8, 1991, and the competition was rerun on about September tl, 1991. The members of the'new Panel, Mr. Morton, Mr. Allin and Ms. Germs were all experienced in holding competitions and .conducting interviews. They were aware that this was a rerun situation and they were aware of the directive of the Board referred to above. Out of a total score of 240, 30 marks were allocated to the written test which was' the mathematical portion of the competition, 50 marks were allocated to experience and training and the balance were allocated to technical and process, lab procedures, supervisory and safety, general, and communications. Mr. Vandevalk scored 29 out of 30 on the written portion of the test whereas Mr. D'Cruze scored 9 out of 30. This was the only portion of the competition which was purely objective and was therefore marked by one member of the Panel. The balance of the competition was scored individually by the Panel members. In the final result, Ms. 2 Germa score 206 for Mr. D'Cruze and i78 for Mr. Vandevalk. Mr. Morton scored 201 for Mr. D'Cruze and 186 for Mr. Vandevalk, and Mr. Allin scored 205 for Mr. D'Cruze and 179 for Mr. Vandevalk. At the completion of the competition, the Employer awarded the position to Mr. D'Cruze, the incumbent, based upon the difference in the scores, holding that Mr. D'Cruze was the superior candidate. 'It is the Union's position: (a) That the two candidates are relatively equal and therefore seniority should come into play and determine the winner of the competition; and 0a) The new Panel did not observe the Board's directive not'to take into ' account experience obtained by the parties subsequent to the original competition. It is the'position of the Employer that a differential of dose to 10% in the score does not indicate relative equality (actually, the differential is 8.8% .on average), and that in any event seniority is not the governing factor but merely a factor to be taken into account. It is also the position of the Employer that the Board's directive was meticulously observed in that the 'Panel advised the two candidates, that they were not to take into account the intervening experience and that the candidates were not to proffer evidence of that experience during the course of the interview. Section 1 of the interview questions, which was allocated 50 marks out of the total of 240, deals with experience and 'training. Question 1.1 is as follows: "Describe your work experience in present and previous positions and describe how it would prepare you for this position?" Question 5.2, which falls under the "general" rubric, is as follows: "Describe a significant personal accomplishment in your present or previous position.". It was the evidence of Mr. Allin that Question 1.1 was put to the competitors in exactly the form in which it appears in the written interview questions being used by the Panel. He testified also that November 1989 was considered to be "the present" for the purposes of the. · question and that the Panel cautioned the competitors about proffering information about' their intervening experience. With respect to the interview questions dealing with specific areas relevant to the position, for example "technical" and "process", "lab procedures" and so forth, all three Panel members were cross-examined as to whether or not increased experience in the senior operator position would assist a candidate to give better answers to those questions. Mr. Morton was of the view that a senior operator would have learned everything he was going to learn after 4 1/2 years (this in relation to Mr. D'Cruze's 4 1/2 years experience as chief operator at Bolton, a municipally operated facility), whereas Mr. Allin was of the view that one would continue learning on the job although-there would be a point of diminishing return. Ms. Germa 4 testified that this was "not like riding a bicycle". She was of the view that the longer you do the job, the better you get at it and the better you are able to answer questions about it. She agreed that greater experience within the position would put a candidate in a better position to answer questions in groups 2 through 5 of the competition interview than someone who had lesser experience. We considered it a matter of simple 'common sense that if a person has had the benefit of an additional year or more of doing the specific job which is being competed for, that experience would assist the candidate in answering questions relevant to the position. The average difference in the two scores was-8.8 % without factoring in or factoring out the advantage which Mr. D'Cruze's experience in the job itself would have given him in answering the interview questions. There was no evidence by the Panel members that any attempt had been made to take into account this advantage when comparing the two candidates' scores. As well, Mr. Allin indicated in his evidence that he had looked at the personnel files but that he did not ascertain which among Mr. D'Cruze's list of courses taken had been taken before and which had been taken' after he was put into the senior operator position. Mr. Vanflevalk's evidence was that he had attempted to enrol in'one of the courses which Mr. D'Cruze had taken, but had found that it was available only to management. There is no definitive evidence as to when Mr. D'CrUze took his courses. We are also concerned about the questions used on the interview. P~fima. facie the two questions set out above violate the Board's directive although we have no reason to 5 disbelieve Mr. Allin's evidence that cautions were given regarding intervening experience. In our view, the two candidates were relatively equal, and a .fortiori, if the advantage in answering the questions obtained by Mr. D'Cruze during the intervening period is factored into the final result. It was urged upon' us most forcefully by Mr. O'Shea that even if we were to come to the conclusion that the competitors were relatively equal, that seniority is not the determining issue but merely a factor to be taken into account. It was Mr. Ryder's argument that the factors are to be applied sequentially, and that qualification and ability are the Criteria to be used alone Unless there is relative equality in which case a second criterion, namely seniority, comes into play and determines the outcome. There is no evidence before us of any other criterion, compelling or otherwise, which should be considered in the particular circumstances before us, and as this competition has been run twice, we see no utility in sending the matter back to the Panel. Mr. Vandevalk has two years of seniority over Mr. D'Cruze, somewhat in excess of 20% if we are to use 1989 as the effective date upon which to view the two candidates' seniority, and we are unanimously of the view that whether seniority is merely a factor to be considered or the factor to consider after having determined relative equality, in these circumstances Mr. Vandevalk should be awarded the position. 6 An award will go accordingly placing Mr. Vandevalk in the position of senior operator with compensation retroactive to the date when Mr. D'Cruze first took up the position. If there is any difficulty in implementation of this Award, this Panel will remain seized and the parties may seek further direction if necessary. DATED this 3rd day of March , 1994. -Chairpers E. SEYMOUR Member M. O'TOOLE Member