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HomeMy WebLinkAbout2006-0077.Alani.07-08-15 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de reglement des griefs des employes de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec. : (416) 326-1396 IN THE MATTER OF AN ARBITRATION Under Nj ~ Ontario GSB# 2006-0077 UNION# 2005-0340-0060 THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE FOR THE UNION FOR THE EMPLOYER HEARING Before THE GRIEVANCE SETTLEMENT BOARD Ontario Public Service Employees Union (Alani) - and - The Crown in Right of Ontario (Mini stry of Finance) Richard L. Jackson Mark Barclay Grievance Officer Ontario Public Service Employees Union Jennifer Richards Counsel Ministry of Government Services May 16, 2007. Union Employer Vice-Chair 2 Decision This is the grievance ofMr. Nawaz Alani, who grieves the outcome ofajob 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. The Grievor is employed by the Ministry of Finance in Corporations Tax, classified as a Tax Auditor 3 (TA3). The Grievor's seniority date is August 27, 1981. 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 two 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 T A 4 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% ofthe 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 each Grievors' test to establish ifthey met the minimum threshold of 55%. This remarking confirmed that the Grievors did not meet the required threshold. 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 33.25%. A summary of the Grievor's score is attached as Appendix 2 [not included in this award]. 15. The Grievor filed a grievance on December 19,2005, 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 interviews of two candidates related by marriage should be have been scheduled back to back by management to minimize the sharing of information . The Grievor should have been awarded 9 additional marks in the written test. The Grievor relies on the remarking done by his Union representative, Mr. Art Slade, to support this position. . One candidate was provided an extra week to prepare for the written test. . The presentation segment ofthe interview should have more marks allotted for communication skills than for tax legislation and more time should have been provided to candidates for its preparation. It should be added here that the Employer conceded that it had determined that the Grievor might have been entitled to some additional marks on the oral component of the test. Nevertheless, both parties agree that, even had he received these, he still would have ended up short of the pass mark of 55%. 4 The Union further argued that the Employer's setting of 55% was used, in effect, to defeat Article 6.3 of the collective agreement. It also argued that, had the pass mark been 50%, Mr. Alani might have succeeded, given the higher mark he believed he deserved, based on Mr. Slade's regrading of the tests. For its part, 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. Alani'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. Alani achieved a total of33.25% on the three selection tools, and since he hadn't met the threshold score of 55%, he went no further in the selection process. Counsel for the Ministry argued that the fact that the Grievor's score improved by nine marks when the test was regraded by Mr. Slade, is irrelevant, given that, being the Grievor's Union steward, Mr. Slade 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 5 incomplete and therefore the results less reliable. However, even if the adjustment of nine marks were allowed, Mr. Alani would still have fallen well short of the 55% threshold. 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 was improper or inadequate. The Employer agreed that two of the applicants were married but verified that they had had back-to-back interviews. It also confirmed that several of the candidates were given the opportunity to write the test a week later because of extenuating circumstances. 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 well short of that level, Article 6.3 of the collective agreement does not apply. 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 6 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, both in 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. The next question is the level of the threshold. Is 55% acceptable? Should it have been 50%? In view of the facts that there is obviously no scientifically precise method of determining the exactly correct threshold and that any such threshold is arbitrary to some extent, we must revert for an answer to the principle of reasonableness. While the following may appear arbitrary, 55% sounds reasonable 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 7 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 Mr. Alani's mark, 33.25%. The Grievor relies heavily on the fact that, when his written paper was regraded by Mr. Slade, a higher mark resulted. Unfortunately, that fact cannot be persuasive in this situation. First, as Union Steward, Mr. Slade 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. Slade 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. Slade'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 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 marks. 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 8 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. Slade's regrading of the tests. Let me now deal with the alleged flaws in the process. The two married candidates were appropriately interviewed back to back, but it is theoretically possible, if unlikely, that there was some tainting of one or the other's mark. However, even if that had occurred, it would not have affected Mr. Alani's mark and its relation to the threshold, which is the issue before me. Similarly, it is theoretically possible - if, again, unlikely - that the person who wrote the tests a week later by reason of extenuating circumstances, gained an advantage and scored higher than they otherwise might have done, either by virtue of having an extra week to study or by talking with someone who had already written the test. Again, however, this is not really relevant to this case, which is not a complaint about how Mr. Alani did relative to those specific individuals, but about his grade relative to the threshold passing grade of 55%. The Grievor complained that he should have had more time to prepare for the presentation segment of the interview and that more marks should have been allocated for communication skills than for tax legislation. Anyone who has ever been interviewed or written an exam can empathize with Mr. Alani in these observations because it's a common sensation to feel that the interview or exam process did not allow an individual to present oneself to best advantage and to 9 highlight one's strengths. However, it's also an unfortunate fact that the testing process has to be designed in a way that serves the needs of those doing the testing as well as those being tested. No exam or interview is ever perfect, particularly in the view of most of those who took them. In any event, there is no supporting evidence for these criticisms, and I am therefore unable to conclude that the selection process was flawed in the way the Grievor alleges. Mr. Alani scored a total of 33 .25%, significantly below the 55% threshold. Even allowing for the inevitable imprecision that creeps into the marking of almost any sort of test as well as the extra marks that the Employer concedes the Grievor might have earned on the oral component, the result would still have been below the pass mark of 55%. For all of the foregoing reasons, then, the grievance must fail. August 15,2007