HomeMy WebLinkAbout2005-1937.Pelikan.07-06-11 Decision
Commission de
Crown Employees
Grievance Settlement
règlement des griefs
Board
des employés de la
Couronne
Suite 600 Bureau 600
180 Dundas St. West 180, rue Dundas Ouest
Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
Tel. (416) 326-1388 Tél. : (416) 326-1388
Fax (416) 326-1396 Téléc. : (416) 326-1396
GSB# 2005-1937
UNION# 2005-0502-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Pelikan)
Union
- and -
The Crown in Right of Ontario
(Ministry of Health and Long-Term Care)
Employer
BEFOREVice-Chair
Reva Devins
FOR THE UNION Serge Linarello
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Yasmeena Mohamed
Counsel
Ministry of Government Services
HEARING May 22, 2007.
2
Decision
Pursuant to Minutes of Settlement, the grievor, Patrick Pelikan, was interviewed for the position
of Customer Service Agent with the Ministry of Health and Long Term Care. He was guaranteed
the position if he attained a minimum score of 70%. The grievor ultimately scored below 70%
and he now grieves the reasonableness of the assigned mark.
Facts and Evidence
Background and Context
The job duties of a Customer Service Agent (?CSA?) were described by Bessie Callitsis,
Manager, Client Services, with the Communications and Information Branch of the Ministry of
Health and Long Term Care. Generally, CSA?s are responsible for responding to public enquiries
on a range of different government programmes and services. The most frequent form of contact
is by phone, however, they also receive fax, e-mail, postal and in person enquiries.
Over the last several years the position has evolved into a multi-functional, multi skill based
position. Initially, Agents were assigned to a designated programme area, with dedicated phone
queues for different services or agencies. The Communications and Information Branch currently
serves 18 different ministries with 25 separate 1-800 numbers. The branch also acts as the call
center for provincial emergencies and disasters. The various systems utilize a number of different
computer programmes and a distinct database of information from which Agents must glean the
appropriate answer for each caller. Consequently, CSA?s must now be cross-trained across
several ministries and government services and be able to work with a wide range of computer
formats and programmes.
Ms. Callitsis further described the knowledge and skills required for the job:
- good knowledge of government programmes and services;
- good computer skills;
- all agents must either be bilingual or multi lingual;
- excellent communication skills; there are no scripted answers and CSA?s must
be able to communicate effectively;
3
- excellent writing skills;
- an ability to probe and determine what a caller is seeking; not all callers will
be able to adequately identify their needs and the Agent must be able to assist
in this regard.
The grievor had previously performed these duties as an unclassified member of the Ontario
public service. He was unsuccessful in a subsequent competition for the position and grieved his
non-selection. The result of that grievance was the MOS described below.
Minutes of Settlement (?MOS?)
The grievor applied for a Customer Service Agent position in the Communication and
Information Branch. He was not selected and he filed a grievance. In resolution of that grievance,
the parties entered into the following Minutes of Settlement:
1. The Employer agrees to grant the Grievor an interview for the position of Customer
Service Agent in Communication and Information Branch by June 9, 2007.
2. If the Grievor obtains the minimum score of 70%, he will be offered the position. In
addition, the Employer agrees to reduce the probation period to 6 months and apply
previous unclassified service toward his Continuous Service Date.
3. If the Grievor obtains a score below 70%, he will not be offered the position. Vice
Chair Devins shall remain seized of any issues, concerns or allegations that may arise
as a result of the competition.
4. The parties agree that Stephen Lindsay and Bessie Callitsis and a Human Resource
Consultant will compromised the interview panel.
The Evaluation Process
In accordance with the terms of the MOS, the grievor?s skill and ability was re-evaluated. The
evaluation included five elements:
1. A second language proficiency test: Candidates were required to achieve ?advanced?
status. The grievor met this requirement;
2. A Simulation Exercise Scenario ? Mock Call (20%): Candidates responded to a
simulated phone call enquiry;
3. An E-Mail Question (20%): Candidates were given instructions, an e-mail inquiry
and excerpts from the relevant database. They were asked to create a Word document
4
containing their response, to save it with a designated name and then send it as an
attachment to the grader;
4. Interview (50%): Candidates were interviewed by the panel of three named
individuals as provided in the MOS. The scores awarded by each interviewer were
averaged to attain a composite interview score.
5. Reference Checks (10%).
The scores for the last four elements were tallied to arrive at the grievor?s score. He attained an
overall grade of 67.24%: 15.35 for the Mock Call Exercise; 5.05 for the E-Mail question; 38.54
marks for his average interview score; and 8.3 for the Reference Check.
The grievor testified that he was quite nervous during his evaluation. He had worked at this job
as an unclassified employee for five years and he realized that his continued employment
depended on his performance during this assessment.
Disputed scores
Not all of the grievor?s scores were disputed. The Union acknowledged that they were only
challenging the E-mail grade and the score awarded by one member of the interview panel with
respect to two questions.
i) The E-mail Question
This portion of the evaluation was conducted as a discrete test and was time limited. The grievor
was provided with the essential information contained in the applicable database. He was then
instructed to respond to an e-mail enquiry within thirty minutes, save the response as a Word
document using an identified naming convention and send it as an attachment to Bessie Callitsis,
the evaluator.
5
Candidates were asked to respond to the following e-mail:
Hi there:
I live in Toronto year round but also have a cottage in Haliburton that I just bought that I
plan to visit during the summer weekends.
I would like to have the well water tested to ensure we can use it, can you tell me how I
may do so?
Regards,
Happy Cottager
The grievor?s response was:
Thank you, Mr. Happy Cottager for E-mailing INFOline. My name is Patrick Pelikan I
will be Happy to assist you. To have your water tested please contact the Haliburton,
Kawartha, Pine Ridge District Health Unit located at 200 Rose Glen Rd., Port Hope ON
L1A 3V6. The General Office Telephone number is 905-885-9100 and the Toll-Free
telephone number is 1-866-888 HKPR (4577). The Fax number is 905-885-9551 and the
website is http://www.hkpr.on.ca. You will be provided with a barcode which you must
provide to an INFOline Customer Service Agent at 1-800-1151. If you need further
assistance please feel free to send your E-mail inquiries have a great day Mr. Happy
Cottager.
The grievor testified that he completed the written assignment and saved his response as
required. He admitted to subsequently experiencing some difficulty in retrieving his Word
document. When he was advised that his time was up, he allowed Cleo Tyne, who was assisting
Ms. Callitsis with the evaluation, to locate the file. The grievor stated that he sent the e-mail as
required after Ms. Tyne located the document.
6
Ms. Callitsis testified that she did not receive an e-mail from the grievor, but that Ms. Tyne
1
provided her with a print out of the grievor?s response. Ms. Tyne also sent the following e-mail
report:
??, this is just to advise you of the situation when I informed Patrick Pelikan that his
time was up for the e-mail portion of the interview.
? Could not find his answer that he had saved in Word
? Asked me to give him more time to re-do the answer
? Became frantic (Started banging the mouse)
? Used obscene language
I calmed him down and found his answer saved in Word on the desktop. He had already
had the e-mail set up ready to send Bessie Callitsis and I just added the attachment and
hit send. I printed a copy of the answer and brought it over to you. He thanked me and I
shut down the computer and told him he could go.?
The grievor denied banging the mouse or using obscene language, however, he did admit that he
allowed Ms. Tyne to locate his saved Word document. He testified that he uses Word and sends
e-mail responses on a regular basis but that he was momentarily unable to retrieve his saved
response due to nerves.
In Ms. Callitsis? view, the grievors? written answer was seriously deficient. He provided limited
contact information and did not provide all available information. He should have told the
cottager how to obtain a water testing kit, where to send the sample, how to get results once a
water sample has been submitted and provided alternate office sites in Toronto so that the most
convenient location could be selected. Moreover, the form of the response was inadequate as it
did not include a proper opening or closing statement. Finally, the grievor should not have
encouraged the writer to re-contact the INFOline. Based on these shortcomings, Ms. Callitsis
awarded a score of 5.05/20 for the content of the grievor?s response.
1
The e-mail was dated June 14, 2006 and was sent to Stephen Lindsay, one of the named members of the interview
panel. This e-mail was admitted by agreement of the parties.
7
Initially, when Ms. Callitsis did not receive an e-mail response, she treated this as a failure to
complete the exercise and assigned a score 0/20. She subsequently reconsidered her decision
and awarded a grade of 6.05/20: 1 mark for ?Computer skills ? Ability to use PC, Word, Internet,
Email? and the balance for content. According to Ms. Callitsis, when she was subsequently
advised by Ms. Tyne that the grievor did not successfully retrieve the saved response, she further
revised the grievor?s score to award 0/2 marks for the technical component and to only give the
grievor credit for those marks that he attained with respect to the content of his response. He was
thus awarded a final score of 5.05/20.
ii) Interview Questions
The only scores that are being challenged are those awarded by Ms. Callitsis for two interview
questions.
The focus of the first disputed question, Question 3 in Section B, was the use of database
systems to access information to assist with client queries. Ms. Callitsis described the grievor?s
response as limited to naming the databases without indicating how the information would be of
assistance to him or the client. Nor did he indicate how he would retrieve the required
information. Overall, Ms. Callitsis regarded this as a weak response.
Question 1, Section C asked the candidates to describe a situation where a customer was
difficult, upset or irate, and the outcome. Again, Ms. Callitsis considered the grievor?s answer to
represent a minimum response. She testified that she felt that the examples that he provided were
of routine situations that have standard protocols that all agents are trained to employ. Neither of
the grievor?s examples revealed how the grievor might diffuse a difficult situation through his
initiatives.
Ms. Callitsis deemed the grievor?s response to each of the challenged questions a ?minimum? and
awarded 2 marks. For Question 3, Section B, two of the interviewers determined that the
grievor?s response was ?suitable? and awarded a score of 3. With respect to Question 1, Section
C, one of the other panel members also assigned a minimum score of 2 marks. The third
member, Ms. Watt, viewed the response as ?excellent? and awarded 4 marks.
8
Submissions
The Union acknowledged that the Employer took great pains to ensure a fair and equitable
process. The Union did, however, submit that the scores assigned to three questions were
unreasonable. First, it was suggested that the original assessment of the E-mail exercise was the
most reasonable and that the grievor should be given a score of 6.05. With respect to Ms.
Callitsis? interview scores, it was the Union?s position that two of her scores were ?unreasonable?
when compared to those awarded by the other two panel members. In both instances, Question 3,
Section B and Question 1, Section C, one additional mark was sought with the appropriate
weighting applicable to those questions. Ms. Callitsis? reconfigured score should then be
averaged with the scores of the other two panel members to establish a reasonable grade for the
interview component of the evaluation.
The Union further seeks ?consideration of the grievor?s nervousness?. The Union acknowledged
that there was no question of impairment and this was therefore not an issue of accommodation.
It was further conceded that there was no case law in support of the position that was advanced.
Nonetheless, it was suggested that ?if at all possible? the grievor?s anxiety should be taken into
account.
The Employer was prepared to accept the Union?s submission that the grievor?s scores must be
assessed to determine whether they were reasonable in all of the circumstances. In the
Employer?s view, however, I must also find that any flaws were fatal and in this instance, even if
all of the marks that the Union sought were awarded to the grievor, he would still not meet the
agreed minimum threshold to obtain the position. The Employer submitted that the Union could
not demonstrate that the grievor should have been awarded enough marks to achieve a minimum
score of 70% and therefore the grievance must be dismissed.
The Employer further submitted that the evidence of the grievor?s test anxiety should be given
absolutely no weight. Throughout the course of assessment management endeavors to ensure that
nerves do not play a major role in evaluating applicants. During the interview, questions will be
rephrased where necessary and candidates are given time to reflect on their answers. It was
submitted that the interview process is properly responsive to an individual candidate?s
9
apprehension, but that nervousness cannot be relied upon to subsequently adjust an individual?s
marks.
Analysis
At the outset it is important to bear in mind that my jurisdiction is limited; it derives from the
Minutes of Settlement that the parties agreed would govern in this matter. The Union and the
Employer commenced the arbitration by acknowledging that the grievor?s seniority was
irrelevant and that there was no issue of relative equality which would require me to compare the
grievor?s score with that of other candidates. Rather, as argued by the parties, the only issue
before me is whether the scores assigned to specific components of the grievor?s evaluation were
reasonable. If they were not, were those defects fatal?
Turning then to an examination of the scores that were awarded to the grievor, I accept the
grievor?s evidence, which was confirmed in Ms. Tyne?s e-mail, that he drafted his response
using a Word document and saved it to his Desktop. I further find that he subsequently had
difficulty retrieving the document and allowed Ms. Tyne to find it for him. Mr. Pelikan did
complete some of the technical requirements, albeit with notable deficiencies, and he should be
awarded some mark greater than zero in recognition of the computer skills that were
demonstrated.
When Ms. Callitsis first graded Mr. Pelikan?s response, she knew that he had not completed all
of the technical requirements. She had only received a paper print out of his response and was
fully aware that he had not sent an e-mail with attachment per the instructions. Despite this
failing, she awarded 1 mark out of 2 for computer proficiency. Ms. Callitsis was subsequently
advised by Ms. Tyne of the circumstances in which the grievor was unable to fully complete the
assignment. Ms. Tyne confirmed that the grievor completed some of the technical elements and
she provided further details surrounding the grievor?s failure to send the e-mail as required.
I do not find it reasonable to assign a grade of zero for the technical component of the
assignment. Ms. Callitsis did not clarify what specific, additional information she relied upon to
revise the grievor?s grade to 0 on this component of the assessment. Nor did she explain why the
grievor was not entitled to any marks for the ?Computer Skills? portion of the evaluation. I
consider the original grade awarded by Ms. Callitsis a fair evaluation of the grievor?s computer
10
proficiency; that is, some but not complete mastery of the ?Ability to use PC, Word, Internet,
Email?. I would therefore restore Ms. Callitsis? original score for the e-mail, which was 6.05/20.
The Union has also challenged Ms. Callitsis? marks with respect to Question 3, Section B and
Question 1, Section C. The sole basis on which the Union urged me to increase these grades was
that the marks were unreasonable compared to the marks awarded by the other members of the
interview panel.
I do not accept the Union?s fundamental premise. Ultimately, I do not agree that a variation in
scores awarded by different panel members is sufficient, in and of itself, to establish the
unreasonableness of a specific grade. Inevitably, when panel members engage in an independent
assessment of a candidate?s performance there will be instances where they reach different
results. Indeed, unanimity among panel members may well raise questions about inappropriate
collusion or consensus marking.
The grievor?s interview score has already been averaged to minimize any scoring deviations
among panel members. The Union has proposed that I also alter the score assigned to specific
questions where different grades are awarded by different panel members. The net result of this
argument is that marks would essentially be averaged twice: once when the raw scores of all
panel members are averaged and then again in response to the grievor?s challenge of individual
questions.
Ms. Callitsis has provided a rational and reasoned explanation for the scores that she awarded in
respect of the disputed questions. The Union did not challenge her explanation nor did it test her
justification on cross examination. The only criticism of her marks is that one or both of her
colleagues assigned a different score than she did. In my view, the challenged outcome is
entirely consistent with a fair and independent adjudication of the grievor?s interview. There is
nothing about a mere variation in marks that suggests that Ms. Callitsis? scores were
unreasonable. Ms. Callitsis identified specific deficiencies with Mr. Pelikan?s response to the
two disputed questions and I accept her evidence that she considered his answers to be very
weak. Based on her evidence, I find that the scores that Ms. Callitsis awarded on Question 3.
Section B and Question 1, Section C were reasonable in light of her perceived shortcomings in
the grievor?s response.
11
Even if I were to accept the Union?s submission on this point, it is of limited assistance to the
grievor. In Question 3, Section B, Ms. Callitsis gave the grievor 2 marks whereas the other two
members of the interview panel awarded 3 marks. This question was subject to a weighting
factor which would result in a net gain to the grievor of 1.25 in the score awarded by Ms.
Callitsis. Her mark must be averaged with the other two members for a final interview score of
38.96, or an addition of .45 to the grievor?s overall score.
With respect to the other disputed question, Question 1, Section C, Ms. Callitsis grade was the
same as that awarded by one of her colleagues. The third member of the panel awarded a
significantly higher score. Based on the analysis proposed by the Union, arguably the grievor
should lose marks on this question so that the deviant mark awarded by Ms. Watt was brought
into line with the score given by the other two members of the interview panel. That would result
in a net loss of marks for the grievor. In any event, Ms. Callitsis? score on this question is
consistent with that assigned by the majority of the interview panel and no other reason was
advanced to challenge her assessment.
Ultimately, I am not persuaded that there were any errors that warrant a review of the score
awarded for the interview portion of the evaluation. Although I have determined that the grievor
was entitled to receive one additional mark for the assessment of his e-mail response, his
combined score still falls short of the 70% required under the terms of the MOS. Based on the
one discrepancy that I have found, I do not find that the end result would have been any different
if it had not occurred. Indeed, as was pointed out by the Employer, even if all of the marks that
the Union sought were awarded, the grievor would still not attain the requisite 70%. In these
circumstances, regardless of any flaws in the grading of his evaluation, the alleged errors made
no difference to the outcome.
The Union also asked that I ?give due consideration? to the grievor?s evidence that he was very
nervous throughout his evaluation. The Union stated that it was not seeking a formal
accommodation; it was merely requesting that I consider the grievor?s anxiety when I determined
the reasonableness of his score. No further detail or specific argument was advanced by the
Union in this regard.
12
Although I have some sympathy for the grievor, I cannot accede to the Union?s request. This is
not an issue of accommodation nor has the Union suggested that the Employer?s conduct has in
any way disadvantaged the grievor. Ultimately, the parties, as well as others who might be
indirectly affected by the outcome of this decision, rely on the Board to make a determination on
the basis of the evidence, the MOS and the requirements of the collective agreement. While I
accept the grievor?s testimony that he was very nervous during his interview that does not
warrant special consideration in the assessment of his score. It is incumbent on Arbitrators to
reach a conclusion without regard to their personal sympathies; the fair administration of the
grievance arbitration process depends on an objective decision based on the merits of the case.
Conclusion
The grievor?s score should be revised to 68.24%. His overall score, however, still does not meet
the minimum requirement set out in the Minutes of Settlement. Consequently, this defect in the
evaluation process did not affect the outcome and I would dismiss the grievance.
th
Issued at Toronto this 11 day of June, 2007:
Reva Devins, Vice-Chair