HomeMy WebLinkAbout2006-1033.Rosa.08-04-14 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# 2006-1033
UNION# 2006-0546-0032
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Rosa)
Union
- and -
The Crown in Right of Ontario
(Ministry of Finance)
Employer
BEFOREVice-Chair
Janice Johnston
FOR THE UNION
Mark Barclay
Grievance Officer
Ontario Public Service Employees Union
FOR THE EMPLOYER Julie Legault-Hockley
Labour Relations Consultant
Ministry of Finance
HEARING February 14, 2008
WRITTEN April 2, 2008.
SUBMISSIONS
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Decision
At the hearing scheduled to deal with this matter, it was agreed that we would proceed
pursuant to the expedited process set out in Article 22.16 of the collective agreement. It was
agreed that I would issue brief reasons for my decision and that this decision shall have no
precedential value.
At the hearing scheduled to deal with this matter, the parties agreed to proceed by way of
written submissions. I am in receipt of an Agreed Statement of Facts from the parties which
provides as follows:
Agreed Statement of Facts
1. The Grievor is employed as a Senior Corporation Tax Auditor (Tax Auditor 5) with
the Tax Compliance and Revenue Collections Branch, Tax Revenue Division,
Ministry of Revenue.
2. On December 2, 2005, the Employer posted a competition for five (5) Senior
Corporation Tax Auditor (Tax Auditor 5) temporary assignments, three (3) of which
were located in the Mississauga Tax Office of the Tax Compliance and Revenue
Operations Branch, Ministry of Revenue. Attached as Appendix ?A? is a copy of the
job ad, posted December 2, 2005.
3. Questions, suggested answers and allocation of marks were established by the
Employer prior to the commencement of the competition. The Employer thereafter
conducted the competition, which included, amongst other things, interviews as well
as written tests.
4. Effective April 13, 2006, three (3) candidates were chosen for the Mississauga Tax
Office, based on the ranking and in accordance with Article 6 of the OPSEU
Collective Agreement. Subsequent to a re-opening of this competition under Article
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6.1.2, four (4) additional candidates were awarded similar positions. The Grievor was
one of the four (4) successful candidates chosen upon this re-opening, effective
November 13, 2006.
5. Attached as Appendix ?B? is the Questions, Answers, Marking, Grievor?s Responses
and Interviewers? Marking of the Grievor?s interview and test. In addition, attached
as Appendix ?C?, is a document showing the ranking and the continuous service dates
of the ten (10) candidates who were interviewed.
6. As a result of the competition and as seen in Appendix ?C?, the Grievor was ranked
in seven (7th) position out of the ten (10) candidates interviewed.
7. The Grievor grieves that ?the employer has violated the collective agreement,
including but not limited to article 6 by improperly denying me the position of TA5
for which I competed under job requisition file #6609? and seeks ?full redress
including but not limited to the position of TA5, lost wages and benefits with interest,
retroactive to date of appointment to the position and any other remedy that the Board
deems just.? Attached as Appendix ?D? is a copy of the Grievor?s grievance, dated
April 7, 2006.
8. The Grievor argues that he should have received additional marks, and has re-marked
the Interviewers? Marking of the Grievor?s interview and test (Question 8). Attached
as Appendix ?E? is a copy of the Grievor?s rescoring of his interview and test.
9. The Grievor maintains that the competition was flawed in that the marking did not
reflect his knowledge and ability, and that, had the competition been remarked, the
results would have been different.
10. The Parties have agreed that Question 1 of the interview is not in dispute.
11. The Grievor has made no arguments of bad faith or discrimination against the
Employer. Furthermore, there is no allegation that the interview and test questions
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were inappropriate. The Grievor argues that the process used to select successful
candidates was not properly applied to him.
12. The Employer argues that the Grievor has adduced no evidence that the process used
to select successful candidates was not equally applied to each of them.
13. The Employer notes that, in Appendix E, the Grievor argues that, when a variance
between the two interviewers? score occurred, the higher score ought to have been
awarded to him. Nevertheless, in accordance with the Manager?s Guide to Staffing in
the Ontario Public Service (an excerpt of which can be found in Appendix ?F?), the
managers? individual ratings of each candidate were tallied and then averaged for a
final score. As such, it is the Employer?s position that the competition has been
scored in accordance with its policies and procedures.
14. It is the Employer?s position that, when filling a vacancy, it is within the Employer?s
management rights to assess employees? qualifications and abilities to do a job. The
Employer notes that the Grievor has subjectively rescored his own responses only, as
opposed to all of the ten (10) candidates interviewed. The Employer also notes that
most of the additional marks that the Grievor would have awarded to himself relate to
incorrect or repetitive responses or to the managers? assessment of the Grievor?s
interpersonal, team leadership and communication skills.
15. The Employer argues that the onus is on the Grievor to establish that the competition
was conducted in an arbitrary, discriminatory, or unfair manner or that the Employer
made decisions regarding the applicant in bad faith or that the competition was so
flawed that the Grievance Settlement Board should order a new one. The Employer
submits that the Grievor has not satisfied his onus.
16. The Employer further maintains that the competition was fair, reasonable and not
arbitrary or discriminatory and that no evidence or arguments have been brought by
the Grievor to the contrary. Absent evidence that the interview or test questions were
unfair or that the Grievor was somehow discriminated against with respect to the
manner in which the tests were applied or administered or that the Employer has
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breached its policies or procedures, there is no basis upon which the Grievance
Settlement Board could set aside the scores achieved by the various candidates.
17. As such, it is the Employer?s position that there has been no breach of the collective
agreement and that this matter ought to be dismissed.
18. The Parties ask the Grievance Settlement Board:
a) whether the Employee ought to be awarded the above-noted position, or
receive remedy for the loss of the position with comparable wages from April
13, 2006, to November 13, 2006, the date when the Grievor was awarded a
TA5 position; or
b) whether this matter ought to be dismissed.
As reference is made to Article 2 and portions of Article 6 of the collective agreement in
the Agreed Statement of Facts, I will set them out as well. The sections provide:
Article 2 - Management Rights
2.1 For the purpose of this Central Collective Agreement and any other Collective
Agreement to which the parties are subject, the right and authority to manage the
business and direct the work force, including the right to hire and lay-off, appoint,
assign and direct employees; evaluate and classify positions; discipline, dismiss or
suspend employees for just cause; determine organization, staffing levels, work
methods, the location of the workplace, the kinds and locations of equipment, the
merit system, training and development and appraisal; and make reasonable rules
and regulations; shall be vested exclusively in the Employer. It is agreed that
these rights are subject only to the provisions of this Central Collective
Agreement and any other Collective Agreement to which the parties are subject.
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Article 6
6.1.1 When a vacancy occurs in the Classified Service for a bargaining unit
position or a new classified position is created in the bargaining unit, it shall be
advertised for at least ten (10) working days prior to the established closing date.
Where practicable, notices of vacancies shall be posted either electronically or on
bulletin boards and, upon request, shall be provided in large-sized print or braille
where the posting location has the capacity to do so.
6.1.2 Notwithstanding Article 6.1.1 above, the Employer may hire qualified
candidates who previously applied for a similar vacancy or new position provided
that a competition was held during the previous twelve (12) months. The
Employer, in these circumstances, is not required to post or advertise the vacancy
or new position. Where the Employer uses this provision, it shall notify the Local
Union President where the vacancy or new position exists, ten (10) working days
prior to filling the vacancy or new position.
6.3 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 onus is on the union and the Grievor to establish that there has been a breach of the
collective agreement in this case. As is noted in the agreed statement filed by the parties, the
onus is on the Grievor to establish that: the competition was conducted in an arbitrary,
discriminatory, or unfair manner; that the Employer made decisions regarding the applicant in
bad faith; or that the competition was so flawed that the Grievance Settlement Board should
order a new one.
In addition it is also agreed that when filling a vacancy, it is within the Employer?s
management rights to assess employees? qualifications and abilities to do a job.
I have carefully reviewed all of the submissions filed by the parties. I have paid particular
attention to the grievor?s submissions with regard to the marks he received on the interview
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questions and his assertions that he should have received additional marks for certain aspects of
the answers he gave. As is noted in the agreed facts, the parties have agreed that many of the
additional marks that the Grievor would have awarded to himself relate to the interviewer?s
assessment of the Grievor?s interpersonal, team leadership and communication skills. The
measurement of the manner in which an individual communicates, or the assessment of an
individual?s team leadership skills in an interview setting is a very subjective exercise. It is not
the same as asking a specific question with a specific answer, such as asking a candidate to
identify the criteria found in a certain section of the Income Tax Act. For questions such as the
latter there is a clear right or wrong answer. The same is not true for the former.
There is no evidence to suggest that the process used to select the successful candidates
was not equally applied to each of them. The Grievor has made no arguments of bad faith or
discrimination against the Employer and there is no allegation that the interview and test
questions were inappropriate. The Grievor argues that, when a variance between the two
interviewers? score occurred, the higher score ought to have been awarded to him. In this case,
in accordance with employer?s Manager?s Guide to Staffing in the Ontario Public Service each
member of the interview panel rated each candidate. The individual marks were totalled and then
averaged for a final score. There is no evidence before me to suggest that this was not an
appropriate and fair process.
After carefully considering all of the submissions before me, I see no reason to interfere
with the results of this competition. The grievance is therefore dismissed.
th
Dated at Toronto this 14 day of April, 2008.
Janice Johnston
Vice chair