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HomeMy WebLinkAbout1992-1311.Weir&Taylor.95-07-17 ~~-:... .-.: "~ ONTARIO .~ EMPLOYES DE LA COURONNE ~\Jv - CROWN EMPLOYEES DE L'ONTARIO " 1tffJ'~ ~ ~ 11111 GRIEVANCE COMMISSION DE fN~~ ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. SUITE 2100; TORONTO ON M5G .1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 --.." . --'~ 'R=C=~VED GSB # 1311/92 - ~ ~ ' -- ~ '. ',. OPSEU# 920335-336 JUL 1 7 1995 <r PUBLIC SERVICe IN THE MATTER OF AN ARBITRATION APPEAL BOARDS Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Weir/Taylor) I Grieyor - and - Th~ Crown in Right of Ontario \ (Ministry of Revenue) Empl.oyer BEFORE N. Backhouse Vice-Chairperson I FOR THE A. Ryder GRIEVOR Counsel Ryder, Wright, Blair & Doyle Barristers & Solicitors FOR THE B Loewen EMPLOYER Counsel Legal services Branch Management Board Secretariat HEARING April 19, 1995 June 19, 20, 21, 1995 ~ / - ~ .,. - page 2 - ,. D~CISIOl'1 , THE _ ISSUE I The Grievors, who were unsuccessful in a job competItion for 2 positIons as 5usin.es~ Support Officers in the Motor Fuels and Tobacco Tax Branch ("MFTTB."), of the ,Mini~trY of Revenue, allege that there was bad faIth on the part of the Employer and, that the competIt,i,9.I.1 was unfaIr The Grievors seek reinstatement into the 2 positions which provide user end support. The two i.ncumbents, Inez Perrineau and Paul Mark, were present aJ'''' and particIpated in the hearing , THE FACTS ,\ I At the time of the job competit~on in May, 19.92, the two Grievors were employed as unclassified staff on contract in the MFTTB as Busmess Support Officers Louise Weir had been so employed since March, 1990, MIke Taylor since Ju~y, 1991 . One of the successful irtc:umbents Inez , Perrineau was !vis Pernneau~ bad been on secondment to the Employer fI~alth Tax Branch ("EHT") where she had unsuccessfully competed for ~ S02position In April, 1992, the Grievors' supervisor, 5ernie Lyons was asked by the executive director to take Inez Perrine au on secondment to get acquamted with the infrastructure of the Branch It was Mr Lyons' understanding that her -home position had. beep abolished while she was on secondment at the EHT Brancb ~ildt.h~ executive director needed ~ position for her Mr Lyons had concerns aboutMs Perrine au fitting in based on what he - had heard about her and because he felt she nllght. be unhappy as a result of losing the EHT competition However, having constantly asked for more support, he felt that he could not say n,0 ,j - , The Grievors, \Y~o had worked well together and with others in the Branch pnor to Inez Perrineau's arrival, were unable to wo~k with her The 'GrievQrs perceived her arrival at the Director's behest as a management set-up. whereby &he was guaranteed to get one of the two permanent positions whjch were the subject of the upcoming Job competition Bernie Lyons testified that l,Joth the Grievo.rs and Ms Perrine au were at fault for not gettmg along Problems 10 the system which'; had precededMs Perrineau's arrival, became particularly acute after The Gnevors felt Ms Perrineau was responsIble Because of the level of animosIty between the Gnevors and Ms Pert'meau and because there washo way to differentiate between the supervIsory access afforded to each of the Grievors and Ms Pernneau, management mtervened to ) /, - page 3 - ~ remove supervisory access to each of them which was reinstated to the incumbents after they were .successful 10 the Job competition By the time of -the competition, Mr Lyons testified that he was looking forward to the cQrnpetitlOn epding the problems between the Grievors and Ms Perrineau j . The Grievors felt prior to the job com'petItion that they had no cpance because -one posItion was earmarked for Inez. Perrineau and it was clear they could not work with her Bernie Lyons testified that he was sufficiently concerned about mterference in the job competition thai he mentioned his concern to his superior, Bob Moxley The Grievors' contracts were due to expire on March 31, 1992 and were extended until the competition which enabled the Grievors to compete in the job competitIOn. ~ - - The Employer relies upon this as clearly eVIdencing good faitl1 op. its .part. Had it not intended to allow the Grievors to compete fairly in the job competition, it submits, it would simply noth-ave renewed their contracts past March 31st,1992, preventing' them from competing The Grievors submit that this is not evidence of good faith but rather the Employer's need to maintain user end support until the; job competition filled the 2 positions .- ) ( When the Grievors were unsuccessful in the job competition, I. theIr con'tracts were terminated on 2 'weeks' .notice . Bernie Lyons developed -the test for the job competition together with Barbara Stacey, Senior Business Analyst in the Branch and the Grievors'direct supervisor For the multiple choice questions which were to measure a basic techmcal skIll level, they used the same 20 multiple chOIce questions which had beenu'sed on the EHT competition t~kei1 by Ms Perrineau in February, 1992 'Mr Lyons testified that they did thIs knowingly, based on the informatIOn 1) that the questions had not been used other than on the EHT test, and; 2) that althoughMs Perrine.au had reviewed the EHT test with Human ResQurces after she had taken it, only general areas and not specIfic .questIOns were discussed , Although he was the Freedom of Informatiorr Coordinator for his own Branch, Bernie- Lyons dId not do a formal check to determine if Inez Perrineau had receIved' the answers A through that rou te Unbeknownst to him prior to the date of the test, Ms 'Pernneau had , 0 ~ ( I .~ ... ! - page 4 - - applIed for and iobtained, ,the results of her EHT test' through Freedom of Information on March 3" 1992 Although the pmployer submitted in its opeiung remarks that Ms Perrineau had not received. the answers through Freedom of Information; it was :clear from ExhibJt 6, the letter of r~ply to Ms Pertmeau's Freedom of Information request, that th~ answers were provided to her Me Lyons 'conceded that it was important that Ms Perrineau not receive the expected answers in advance and that, if she 'did, she received an advantage none_. Qf the other candidates had - To compound the problem, the number of marks assigned to the multiple choice questions were doubled from t~e. 20. points allocated in the -EHT test to 40. points Unfortunately, the test wrongly showed the mark allocation as 20. points This became more SIgnificant due to the fact that the test was deliberate}y set to take longeI: to complete than the allotted time 'allowed, apparently to test time J.J1anagement. The two I incumbents completed their multiple choice questions The two Grievors I did not. Th<fse who answered the multiple choice questions first had an advantage Bernie Lyons conceded that Inez Perrineau having had tne I answers may have been a factor in her answering the ; multiple choice I questions first. He also conceded that a factor in deciding when to do the ~ multIple chOIce questIOns was the number ,of pOInts allotted to the I questIons The rest of the oral and written questions were developed by I Bernie Lyons and Barbara Stacey Although bothMr Lyons and Ms Stacey testIfied that they had never seeJ:l the E~T test, one of the oral questions _. and 6 of the written questions were duplicated on the EHT test. In total, 47% of the test was identical to the EHT test. InezPernneau SIgnificantly increased her score on the duplicated questions from that WhICh she had received on the EHT test. If the test results of the Grievors and Inez Perrineau were compared elIminating the results of the multiple choice questions, both Grievors would have substantIally exceeded Ms Pernneau's results Had the multiple choice questions been allotted one'" point as stated instead of two, both the Grievors would have exceeded Ms Perrineau's .results The 3 panel members consIsted of Terry Hing, Peter Cekuta and Bernie Lyons Barbara Sta-cey sat in on the oral part of the test as a technical adVIser None of the panel members had tech.nical expertise Tqe suggested answers were guidelines only and were not definitIve The individual scores of the 3 panel members were averaged for each candidate. - . /, - page 5 - :'\. . The wntteh p'art of the test worthl 100 out of 142 pomts was marked by Bernie Lyons with some assistanc~ from Barbara .Stacey Both Grievors testified that they gave answers which they felt were right for which no marks were r given Neither Inez Perrineau nor Barbara Stacey was able to' reme'mber if Barbara Stacey had acted as a referenc~ f9f Inez Pernneau on the job competition but 'agr:eed that it wa$' ,pos~nble THE LA W The parties agree that the '2 Grievors are in different positions insofar as their right to gneve It has been clearly es.tablished that, for an unclassified' employee such as Michael Taylor; he can only gnevea job 'competition- if Hcan be demonstrated that the Employ~r _ ex~rcised bad faith m carryin,g out the' competlti<m. (OPSEU. (McIntosh) and The' Crown in RIght of Ohtario',GSB File 3027192 released December 15, 1993) There is an exception to that which applies to' Louise Weir Haying worked in the pOSItIOn for 2 years, Article 3 15 of the Collective Agreenrent caJls for it to be posted and a job competition held. It was' held in OPSEU. (Norland) and The Crown in Right of Ontario, GSB 3160/92 releaseq September ,2-1,1993, that under those circumstances, an unclassified employee had the right to grieve the competition on the general grounds of ,.t being a flawed competItion As the Gnevors had no seniority as unclassified employees, It must be demonstrated that their qualIfications are sIgmficantly superior to the I incumbents in order to be successful ! CONCLUSION Ih my view, there can be no doubt tl~at the job -competition was seriously flawed The' combination of the wrong point 'alloc~tion being given for the multiple choice questions together with the test being deliberately too long gave an unfair advantage to those who dId the multIple chOIce questions first. This cannot be. seen as testmg time management because of the wrong point allocation - Ms Perrine au had an unfair advantage over the other candIdates 'beca~se she had in advance the answers to close to half the test 6 To have a panel of 3 members without technical expertise to evaluate a technical test and to have more than two~thlrdsof the test mark~d by only one of the panel members raises a further issue of unfairness .1 ~ ~'~. .:. ,~ ) . - page 6 - - Bad- faIth on the Employer's part will be establIshed In a job competitIOn where' there has been a delIberate attempt to tIlt the field _ with a view to pref~rnng one employee over another In this matter, the Gnevors were conce'rned from the' tIme IneZ' Pernneau 'Was seconded to the MFTBB that management had earmarked one of the 2 positions in the job competItion for her Management was well awateof the Gnevors' concerns Berme Lyons 'wassufficIently concerned about Interference in the job competition that he meritroned his concern to his superior In thIS atmosphere, the Employer constructed a test, a sigmficant part of which was identIcal to the EHT test taken by Inez Perrineau a few months previously The Employer knew that Inez Pernneau had taken the. EHT test, that she had reviewed .her results with Human Resources and that she had a right to 'get the EHT questions and answers through Freedom of InformatIOn Under those cIrCUmstances, the E~ployer proceed~d with the test wIthout making an inqUlry through the Freedom of Information process to d'etermine whether or not Ms Perrineau had obtained the answers to the EHT tes t. Objectively f viewed, thIS must be seen as a delIberate omIssion calculated to give Ms Perrine au an advantage in the job competition from which she clearly benefi ted , The fact that the Employer extended the Gnevors' contracts In March, 1992, wQich enabled them to compete, does not absolve them of bad faith in May , 1992, when the competition was held Management clearly required u,ser end Slfpport in the interim. Moreover, by May, 1992, the relationship between the Grievors and Inez Pernneau had detenorated to such. an extent that Mr -Lyons was looking to the competition to end the problem In my VIew, the eVIdence Indicates that the onus on both Grievors has been met The testImony adduced establIshes that the competItIon was flawed In the case of LOUlse ~eirand was carned out in bad faIth in the case of both Grievors The UnIOn has not asked that one of the incumbents, Paul Mark, be removed from hIS position Instead, It asks that LOUlse Weir replace Inez Perrineau In one of the posItions arid that Mike Taylor be temporarily placed In the other while Paul Mark is In another acting position Alternatively, the Union seeks damages of 2 ye~rs' lost wages for M~ Weir and 1 year lost wages for Mr Taylor~ less any mItigation The ./ ~ , - page 7 - (A.-' /,~ Employer dId not dIspute the appropriateness of the quantum of damages sought Beca4se of the flaws., In the competItIOn~ I am u.nable to determine whether Louise Weir's .qualtHcations are significantly ~upenor to those <;>f Inez -Pernn~au To order a rerun, of the competition ~fter the incumbents have been In the pOSItIOns for more than ~ years- WQllld not be -fair to the Gnevors Nor wO,uld It be practIcal After 3 'years thIS case requires a fin<il determinl;'ltion To order a rerun would be to e~tend the matter even further and to inVIte anpther roul!d of grievances and arbItral reVIew AccordIngly, under these circumstances,. I find the only appropnate ,remedy IS .to award damages to each of the Grievors to compensate th~m for ~he lost job opportunity In the case of Ms Weir, because of her longer tenure in the position, I find that damages equal to two years' salary as a-System Support Officer le~s any mitIgation to be appropriate In the case of Mr Taylor, I find that he is entitled to damages. equal to one year's salary as a System Support Officer less any mitigation. The award~ WIll bear interest from the date of the job competitIOn in May, 1992 I will remam seIzed in the event there is any difficulty with. respect to the damages DATED' July 17 1995 J;J ~/3uM~ Nancy L. Backhouse Vice-Chairperson ~