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HomeMy WebLinkAbout2007-0221.Heath.08-03-25 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# 2007-0221 UNION# 2007-0545-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Heath) Union - and - The Crown in Right of Ontario (Ministry of Health and Long-Term Care) Employer BEFOREVice-Chair Nimal Dissanayake FOR THE UNION Serge Linarello Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Natalia Gonzalez Employee Relations Consultant Ministry of Health and Long-Term Care HEARING March 18, 2008. 2 Decision This is a job competition grievance filed by Mr. Robert Heath, who had unsuccessfully participated in a job competition held for two Senior Medical Laboratory Technologist positions. The instant grievance first came before me on October 4, 2007 for mediation/arbitration pursuant to article 22.16 of the collective agreement. Mediation on that day did not result in a resolution of the grievance. The Board reconvened on March 18, 2008. I am satisfied that the two successful candidates, Ms. Joan Harrison and Mr. Dean Wiley, duly received third-party notices. Mr. Wiley was present at the hearing on March 18, 2008. I was provided with an Agreed Statement of Facts with attached appendices, together with a ?written submission? by the grievor. In making my decision I have reviewed and taken into consideration all of those documents. The Agreed Statement of Facts reads as follows: 1. The Grievor began his employment with the Ministry of Health and Long-Term Care as a full-time, classified Technologist 1, Medical Laboratory Technologist in the Central Public Health Laboratories on February 24, 2003. This remains the Grievor?s current position. 3 2. Two positions for a Senior Medical Laboratory Technologist (Technologist 2, Medical Laboratory, Competition #HLC0829-06) Virology, Immunodiagnostics, Prenatal and Preventable Diseases (VIPPD) were posted on an open basis on December 8, 2006, closing on December 22, 2006, one temporary and one permanent. The advertising process met the requirements under the collective agreement. 3. The job posting was consistent with the job description (See Appendix A, B). 4. Nineteen candidates submitted their resumes in response to the posting, including the Grievor. Of these nineteen candidates, eleven met the selection criteria and were invited to an interview. 5. Interviews were held on January 23, 2007 and January 30, 2007. A total of ten candidates were interviewed for the position as one of the candidates withdrew from the competition. 6. Twelve standardized interview questions were used to assess each candidate during an interview by a three member panel. One of the panel members acted solely as a technical expert and did not contribute to the candidates? scores. Question scoring was done individually and final marks were the mean of the eligible two scores. 7. A threshold of 70% (96.6 marks out of a total of 138) was established based on previous competitions for similar positions. The threshold was set to ensure that a basic level of knowledge and abilities were demonstrated by the successful candidates. 8. Article 6.3 states that ?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.? . The Grievor received a 43.12% (59.5/138) interview rating. The applicants who were offered the permanent and temporary positions received 74.64% (103/138) and 70.29% (97/138) interview ratings respectively. . The Grievor?s continuous service date is February 24, 2003. The applicants who were offered the permanent and temporary positions have continuous start dates of July 22, 1974 and November 4, 2002, respectively. 4 9. The union asserts that upon review of the documents in the appendices the grievor may have been entitled to a maximum of twenty points or 14.49% more marks. However, the union concedes the grievor would still be below the threshold and Article 6.3 would not apply to the grievor. Appendices 1. Job Ad 2. Job Description ? Technologist 2 3. Competition Rankings 4. Panel Notes for interviews of grievor and two successful candidates 5. Answer key for interview questions (Appendices not reproduced) As set out in paragraph 8 of the Agreed Statement of Facts, the collective agreement mandates that the employer give primary consideration to qualifications and ability to perform the required duties. It is only where qualifications and ability are relatively equal that seniority becomes the deciding factor. The facts establish that the grievor had less seniority than either of the successful candidates. Moreover, he scored significantly less than those two candidates. As the candidate with less seniority, to be able to stake a claim to a position the grievor would have to demonstrate that he had significantly superior qualifications and ability than the candidates with greater seniority. 5 As the senior applicants, Ms. Harrison and Mr. Wiley would be entitled to positions, if they demonstrate qualifications and abilities which are relatively equal to the grievor?s. A careful review of the material satisfies me that, even if the grievor could have been marked more liberally as the union and the grievor assert, as the applicant with less seniority, he still would have fallen far short of the level of marks required for entitlement to a position. Therefore, the grievance is hereby dismissed. th Dated this 25 day of March, 2008 at Toronto, Ontario. Nimal Dissanayake Vice-Chairperson