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HomeMy WebLinkAbout2006-0917.Leuser.08-04-16 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# 2006-0917 UNION# 2006-0202-0002 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Leuser) 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 2 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 would 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 4) 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. 3 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 6.1.2, four (4) additional candidates were awarded similar positions. 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 sixth (6th) position out of the ten (10) candidates interviewed. In addition, the Grievor had the least amount of seniority than all of the other seven (7) successful candidates (the three (3) candidates who were initially offered the position and the four (4) additional candidates who were offered a position upon the re-opening). 7. The Grievor grieves that ?management has contravened articles 2.1 and 6.3 of the collective agreement as the rules and regulations implemented in the competition, file no. 6609, were discriminatory, arbitrary and unreasonable? and seeks to ?to be appointed retroactively as a TA-5 or alternatively to have the competition redone.? 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 panel?s assessment 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. 4 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 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, and that most of the additional marks that the Grievor would have awarded to himself relate 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 5 manner in which the tests were applied or administered or that the Employer has 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 April 2, 2008, the date that the employee will no longer be employed with the Ontario Public Service due to transfer to Canada Revenue Agency; 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 6 Agreement and any other Collective Agreement to which the parties are subject. 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 7 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 questions, in particular the case studies, and his assertions that he should have received additional marks for certain aspects of the answers he gave. It is not in dispute that some 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. In addition , the grievor takes issue with the marks his response to question eight received. He asserts that he should have received additional marks under the heading ?grammar, clarity, format and presentation?. For the same reasons set out above I am of the view that the assessment of ?clarity? and ?presentation? in a response is a subjective exercise. 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 8 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 which was applied equally to all of the candidates. 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 16 day of April, 2008. Janice Johnston Vice-Chair