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HomeMy WebLinkAbout2006-0305.Shanmugaretnam.07-08-09 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# 2006-0305 UNION# 2005-0546-0043 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Shanmugaretnam) Union - and - The Crown in Right of Ontario (Ministry of Finance) Employer BEFOREVice-Chair Richard L. Jackson FOR THE UNION Mark Barclay Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Jennifer Richards Counsel Ministry of Government Services HEARING May 16, 2007. 2 Decision This is the grievance of Mr. Ranjit Shanmugaretnam, who grieves the outcome of a job competition within the Ministry of Finance in 2005. This is one of a number of such grievances that originated in the same competition and became the subject of a mediation-arbitration. To deal with four of these grievances, the parties designed an expedited mediation/arbitration process as part of which it was agreed that I would provide decisions on a without-prejudice, without-precedent basis, with limited reasons. This is one of those awards. The parties submitted an agreed statement of fact, which is set out below. 1. At the time the grievance was filed, the Grievor was employed by the Ministry of Finance in Corporations Tax, classified as a Tax Auditor 3 (TA3). The Grievor is currently employed as a Retail Sales Tax ? Tax Auditor 2 (TA2). The Grievor?s seniority date is October 11, 1987. 2. The Employer posted a competition for 29 Tax Auditor 4 (TA4) positions in Retail Sales Tax in July 2005. The recruitment involved 7 competition files (one for each of 6 locations, plus 1 Ottawa designated French positions). A copy of the Job Posting is attached as Appendix 1 [not included in this award]. 3. The Grievor submitted his application in regards to four of the locations. 4. The competitions were restricted to classified Ministry of Finance employees whose home position was in either: Corporations Tax (CT) Branch The CT audit function within Tax Compliance and Regional Operations Branch Tax Appeals Branch CT unit 5. The Ministry utilized a Vendor of Record (HR Associates) for the TA4 recruitment. HR Associates was restricted to accepting and logging applications, administering the written test, sitting on the interview boards, entering all scores in the competition spreadsheet, and doing reference checking. 6. Of the 156 candidates who applied, 35 did not qualify, 12 withdrew, and 15 did not show up for the written test, leaving 94 candidates to be interviewed. 7. In order to interview a large number of candidates across the province, 5 interview boards were established. Each consisted of a senior manager of RST audit plus an experienced RST audit manager and a consultant from HR Associates. 3 8. The 3 evaluation methods used in the TA4 competition were a written test (50% of the marks), an oral presentation (20% of the marks), and an oral interview (30% of the marks). All candidates were given the same amount of time to complete the tests. 9. Three experienced audit managers were involved in creating the rating methods. 10. The written test was originally scored by HR Associates, but every candidate scoring more than 49% overall was remarked by members of the Transition Project Office (?PTO?) team to ensure consistency. There were three experienced audit managers on the TPO team. 11. Following the filing of these grievances, the Ministry undertook to remark the Grievors? test to establish if they met the minimum threshold of 55%. This remarking confirmed that candidates did not exceed the threshold (sic). 12. The Employer selected a 55% threshold. The Employer believed that candidates scoring at or above this level did demonstrate an acceptable level of experience and knowledge for the positions and were therefore minimally qualified. 13. Candidates scoring below the threshold of 55% were not considered any further in the process. 14. The Grievor scored 52.75%. A summary of the Grievor?s score is attached as Appendix 2 [not included in this award]. 15. The Grievor filed a grievance on November 25, 2005, alleging a violation of Article 6 of the Collective Agreement. A copy of the Grievor?s grievance is attached as Appendix 3 [not included in this award]. 16. The Grievor asserts the following facts: The Grievor disagrees with establishing a threshold of 55% He should have been awarded 13 additional marks in the written test. The Grievor relies on the remarking done by his Union representative, Mr. Lorne Woodhouse, to support this position. Relative equality was not applied properly because a threshold mark was used. The subject matter for the oral presentation in the interview was irrelevant for the position being filled. In addition, the Union argued that the threshold mark of 55%, established by management, was an arbitrary number, which did not measure competence, but just served as a cut-off, thereby defeating Article 6.3. If the more common pass mark of 50% had been used, the Grievor would have qualified. Given the Grievor?s view that the questions on the oral presentation were irrelevant to the position, then by definition, he was not tested on his true ability to do that job, thereby further discrediting the cut-off score of 55%. The Grievor pointed out that, had he 4 received the marks he really earned, on the basis of the remark by Mr. Woodhouse, he would have ranked No. 2 in his office and thus proceeded further in the competition. Counsel for the Ministry argued that the selection process was fair and equitable and that there was no contravention of the collective agreement. The process included three assessment methods ? a written test, for 50%; an oral presentation, for 20%; and an oral interview, for 30% ? and was designed to measure the transferable skills possessed by the candidate. In this regard, it was pointed out that since Mr. Shanmugaretnam?s background was in the field of corporate tax, it was necessary to determine his knowledge of retail sales tax, which was the area of the open positions for which he applied. All candidates were, of course, given the same test and the same amount of time to write. According to counsel for the Ministry, the test was carefully developed by three experienced audit managers, who also developed the marking key. They were careful to ensure that the questions were relevant to the work requirements. All of the completed tests were marked first by HR Associates and then by an experienced retail sales tax audit manager. Mr. Shanmugaretnam achieved a total of 52.75% on the three selection tools, and since he hadn?t met the threshold score of 55%, he went no further in the selection process. With respect to the Grievor?s argument that questions on the oral part of the interview were irrelevant, counsel for the Ministry pointed out that they focused on general knowledge of legislation, as opposed to retail sales tax, since all candidates were from the corporate sales tax area. Counsel insisted that they were relevant to the position requirements Counsel for the Ministry argued that the fact that the Grievor?s score improved by 13 marks when the test was regraded by Mr. Woodhouse is irrelevant, given that, being the Grievor?s Union steward, Mr. Woodhouse has an interest in the outcome, in the sense of his understandably wanting to assist the Grievor. Also, only the tests of those grieving were . regraded, so that the process was incomplete and therefore the results less reliable The Employer?s marking was fair and consistent, and neither the Grievor nor the Union adduced any evidence to the contrary or any evidence that the test or marking guide were improper or inadequate. 5 Finally, emphasizing its obligation to select the best-qualified people for the positions, the Employer argued that it had the right under the collective agreement to predetermine a threshold mark in order to determine which of the candidates could be considered best qualified for the position. It did that at a mark of 55%, and given that the Grievor fell short of that level, at 52.75%, Article 6.3 of the collective agreement does not apply; accordingly, the collective agreement was not violated. It asks that I dismiss the grievance. Decision This is a case that turns partially on the applicability, or otherwise, of Article 6.3 of the collective agreement, which is set out below. In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor. However, the real issue in this case is of whether or not the Employer has the right to set a threshold level of 55%, in a given job competition, below which applicants are simply not considered qualified, thereby leaving Article 6 unengaged. Given the wording of Article 6.3, the Employer is bound to try to determine, to the very best of its ability, the ?qualifications and ability? of each candidate, so that a proper and correct decision can be made as to the role of seniority in making the choices. In its fulfilling of this obligation, there is nothing intrinsically wrong with the Employer setting a minimum standard. In fact, given 94 candidates to be considered for the 29 vacant positions, it makes good sense. Though all 94 of the candidates may have possessed the required educational and professional qualifications, it is inevitable that some of them will have been less qualified than others in terms of the requirements that are more difficult to measure. Some fairly decisive culling mechanism is needed to cut the applicant set down to a manageable size, so as to focus the attention and resources of the selection machinery more intensively on a smaller, better qualified set. Indeed, that is standard procedure, in both the public and private sectors. So, just as long as the method used by the Employer to make this determination is free of bias, bad faith, and discrimination, setting a minimum threshold is acceptable. And there was no evidence, suggestion, or allegation that the Employer?s setting of the threshold was so tainted. 6 The next question is the level of the threshold. Is 55% acceptable? Should it have been 50%, as suggested by the Union, in which case the Grievor would have moved forward in the competition process? In view of the facts that there is no scientifically precise method of determining the exactly correct threshold and any such threshold is necessarily arbitrary to some extent, we must revert for an answer to the principle of reasonableness. While the following may appear arbitrary, 55% soundsreasonable to me. In most educational systems, 50% is the normal ?passing? grade, but there are variants, and passing grades of 60, 65, 70, or even 40 or 45, are not unheard of; one finds a similar range with respect to job competitions, both in the Ontario Public Service and outside it. So 55% is well within the range of reasonableness. At the very least, 55% does not sound unreasonable,and I didn?t hear any convincing argument that it was. The Union?s figure of 50% obviously might also have been reasonable, but I was provided with no argument as to why it would have been more reasonable than, or otherwise superior to, a passing grade of 55%. Let me now deal with the Grievor?s mark, 52.75%. The Grievor relies heavily on the fact that, when regraded by Mr. Woodhouse, he received an additional 13 marks. Unfortunately, that fact cannot be persuasive in this situation. First, as Union Steward, Mr. Woodhouse cannot be seen to have been impartial; the job of a Union Steward is to support his or her members, and there is at least the appearance of a lack of complete objectivity, even if there is no substance to that appearance. (Let me make clear that I?m not suggesting for a moment that Mr. Woodhouse would have acted improperly, but only that, as effectively an advocate for the Grievor, it would be quite natural for him ? or, indeed, any individual, myself included ? to empathize with the Grievor and, for example, to give him the benefit of the doubt within the range of discretion associated with the marking of most questions.) The fact that only the tests of the Grievors (as opposed to the entire set) were regraded by the Union is also a problem in accepting the Grievor?s argument that he should have received a higher mark on the basis of Mr. Woodhouse?s regrading. In the following, I speak as someone who, as a professor for over 30 years, has set dozens of exams and marked thousands of exam papers and, as Chair of a large undergraduate program, dealt with disputed grades and exams in numerous other courses. Each examination is (or at least should be) unique, as is each set of completed exams. While a template for grading is crafted ahead of time, the actual grading is 7 also inevitably informed by the perspective of the grader(s), gained in part from marking at least a reasonable sample of the exams across the entire range of grades. There is usually no one absolute right way to assign grades to an answer to a particular question (at least, at the professional level that is the subject in this situation). It is, of course, vital to decide beforehand what is expected by way of a good answer, and what marks should be allocated for each component of the answer. Nevertheless, that view, which is taken before the exam is actually written, is almost inevitably coloured by how those writing the exam actually responded to the question: in other words, by the perspective alluded to above. In view of the fact that the Union marked only a small subset, all of which were in the lower part of the distribution of outcomes, this perspective was lacking. In sum, then, I cannot be persuaded by the higher grade resulting from Mr. Woodhouse?s regrading of the tests. The Grievor argued that some of the questions on the oral part of the interview were irrelevant to the needs of the position because they did not focus on retail-sales-tax law. For its part, the Employer argued that, because the candidates did not come from a retail sales tax background, they were asked oral questions regarding the interpretation of legislation generally. Anyone who has ever been interviewed or written an exam can empathize with Mr. Shanmugaretnam in his observation, because it?s a common sensation to feel that the interview or exam process was not as ?relevant? in its coverage as it should have been; what that often means is that it did not accord with one?s own sense of what is relevant or, with what one studied or, perhaps, what would have let one shine. The Employer?s argument sounds reasonable in the context of this situation, and in any event, there is insufficient evidence for me to conclude that the questions were irrelevant. I have found that, subject to the qualifications set out above ? that it must act in good faith, without bias, arbitrariness, or discrimination ? it was acceptable for the Employer to have set a threshold of 55% to screen candidates out of the selection process. I have also found that the Union?s regrading of Mr. Shanmugaretnam?s test cannot be determinative of the fact that he deserved a higher mark, and concluded that the Grievor?s concerns about the relevance of some of the oral questions are not persuasive. Notwithstanding all of this, however, there is still a problem in the Employer?s having screened out Mr. Shanmugaretnam on the basis that his grade was only 52.75% while the minimum 8 acceptable mark was 55%: that decision imputes a degree of precision to the marking that is very unlikely to have existed. Any test, whether oral or written, relies on multiple processes of communication and interpretation and is susceptible to the difficulties and distortions inherent in those processes. To be able to refine grades over a number of tests within such a fine tolerance I do not believe is possible. As well, except for quantitative questions where the answer is either right or wrong, the evaluation of an answer almost always involves somedegree of discretion. It is difficult enough to precisely judge people?s technical competencies. More abstract qualities such as ?interpersonal and communication skills to manage the audit relationship with taxpayers, promote understanding and acceptance of audit findings, resolve conflicts?? are so hard to measure and quantify that I simply cannot conclude that the Employer, however diligent, systematic, and honest its efforts, could possibly make such a judgment with this level of precision. It must therefore be concluded that, in terms of objective reality, Mr. Shanmugaretnam might have deserved a mark of or even above 55%. The principle of seniority is a very important one in the labour-relations community, and an employer which makes a decision that deprives a job applicant of its possible benefits must be certain that the applicant failed to attain the established threshold mark. Given the imprecision inherent in the assessment process, the Employer cannot have been certain. Thus, in Mr. Shanmugaretnam?s case, I find that the Employer acted improperly in screening him out of the selection process at that point, thereby not allowing the engagement of Article 6.3. As requested, I leave it to the parties to deal with the matter of remedy. I remain seised in the event that they are unsuccessful in this effort. Dated at Toronto, August 9, 2007 Richard L. Jackson Vice-Chair