HomeMy WebLinkAbout2006-1007.Alderson.08-07-04 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# 2006-1007
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Association of Management, Administrative and
Professional Crown Employees of Ontario
(Alderson) Association
- and -
The Crown in Right of Ontario
(Ministry of Children and Youth Services)
Employer
BEFOREVice-Chair
Nimal Dissanayake
FOR THE James K. McDonald
ASSOCIATION
Sack Goldblatt Mitchell LLP
Barristers and Solicitors
FOR THE EMPLOYER Felix Lau
Counsel
Ministry of Government and Consumer
Services
HEARING
November 10, 2006; May 2 & 3, June 12, 13,
14, 2007; March 25, April 1, 2, 9, 10,
May 21, 2008.
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Decision
Ms. Mary Alderson (?grievor?) has filed a complaint dated December 15, 2005,
alleging that the employer had contravened the collective agreement by not appointing
her to the position of Health Care Coordinator (?HCC?) at the Sprucedale Youth Centre
in Simcoe, Ontario, following a job competition for that position. The successful
applicant was Ms. Catharine Legault. She received appropriate third party notice,
attended the hearings, and was given the opportunity to fully participate as a party to the
proceeding. The job posting for the Sprucedale HCC position was ?open?. The grievor
was an internal candidate, while Ms. Legault was from outside the Ontario Public
Service.
The authority of an arbitrator in a complaint such as this is explicitly addressed in
article 18.6 of the collective agreement as follows:
Unfair competition complaints shall be processed in the same way as other
complaints under Article 15, except for the following. Where a complaint is
submitted to arbitration:
(a)The arbitrator shall be empowered to determine any question of fact or law
including whether any requirement of Article 18 has been followed. This
includes, but is not limited to, whether the Employer (including a selection
panel) has made an error in the process of assessing the applicant?s
qualifications based on the evidence which was (or should have been)
before it. However, the arbitrator shall not be empowered to decide who
should have been selected in accordance with Article 18.
(b)As a remedy, the arbitrator may declare the competition and its results null
and void, and order the competition or any part of it to be run again with
directions as to how it is to be conducted.
(c)Notwithstanding Article 18.6(a), where a competition complaint involves
the application of Article 18.3.2, the arbitrator may award the job in
question to the complainant where the selection panel determined that the
complainant?s qualifications and ability were relatively equal to the non-
AMAPCEO unit applicant incorrectly awarded the job.
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18.3.2Where the qualifications and ability are relatively equal between an
AMAPCEO unit applicant and a non-AMAPCEO unit applicant
preferences will be given to the AMAPCEO unit applicant.
It is the Association?s position that the grievor was relatively equal to Ms. Legault
in qualifications and ability. Therefore, since Ms. Legault was a non-AMAPCEO
applicant, I am urged to award the posted position to the grievor.
The job posting stipulated the following:
Duties and Responsibilities
Sprucedale Youth Centre, Ministry of Children and Youth Services seeks a
qualified professional to direct health care services within a multidisciplinary
model. Duties: plan, administer and coordinate nursing services; formulate
budget recommendations; establish/review nursing programs; maintain
medical supplies/equipment; coordinate medial/dental assessments; supervise
health records maintenance; supervise/schedule nursing staff; consult on
community treatment programs/resources; provide direct nursing care as
needed; coordinate treatment programs; ensure compliance with all
policies/procedures.
Qualifications
Registered Nurse in Ontario. Proven ability to: organize/coordinate the
effective delivery of nursing services; supervise/direct nursing staff; plan the
effective use of resources; cooperate with and understand the roles of all other
staff; coordinate nursing services with internal/external programs;
acquire/apply knowledge of youth justice policies/philosophies as related to
heal services in secure custody.
The Association advanced the following reasons in support of its position that the
grievor ought to have been awarded the position , not Ms. Legault.
(1)Ms. Legault lacked the posted qualifications for the HCC position and
should not have survived the initial screening of applications.
(2)The marking of the interview questions by the panel members was
inconsistent in that Ms. Legault received more generous marks than the
grievor.
(3)The decision to award the position to Ms. Legault was made almost
solely on the basis of the scores in the interview/test process, to the
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exclusion of other relevant and reliable information about the candidates?
qualifications and abilities.
The position description sets out the purpose of the HCC position as follows:
To plan, co-ordinate and supervise the delivery of an effective health care
program at Sprucedale Youth Centre. To provide for general first aid
treatment to residents and provide health care education, as required.
The major responsibilities of the position are listed as follows:
In a Secure Custody Young Offender facility, with a capacity of
approximately 90 residents, the position co-ordinates health care services by:
1.? planning, co-coordinating and supervising nursing services for the facility;
2.? participating in the development of relevant health care policies, directives
and procedures in consultation with Senior Management;
3.? ensuring the maintenance of accurate medical records and the security and
recording of all medical supplies and controlled drugs;
4.? co-coordinating appointments and interviews for residents with Centre
Physician, Treatment Personnel, Dentist and assorted Medical Specialists, etc;
5.? preparing, submitting and maintaining the Health Care Unit Budget;
6.? providing direct nursing care to residents as required, i.e. promoting health,
maintaining and improving health of residents;
7.? supervising all subordinate nursing staff including selection, training,
assigning duties, scheduling work, approving additional hours when required
and recommending merit increases, promotion, discipline, handling of
grievances, etc..
The selection process commenced with the screening of applications. Of 21
applications received, only 5 survived the screening. Those five applicants were invited
to the interview stage. Two declined. Ms. Legault, the grievor and Ms. Beverly Gould
participated in the competition process. After the position was awarded to Ms. Legault,
the grievor and Ms. Gould grieved. However, Ms. Gould?s grievance was subsequently
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withdrawn. Therefore while Ms. Gould also participated in the competition, the only
evidence reviewed here will be those relating to Ms. Legault and the grievor.
The grievor and Ms. Legault participated in the interview/testing process on
st
November 1, 2005. This process consisted of an oral interview by a selection panel at
which each applicant was required to answer seven pre-determined questions, followed
by a written test. In addition, the candidates were scored for ?communication
skills/presentation? based on their performance at the interview. The whole process was
scored out of a total of 372 marks, comprised of 210 marks for the interview, 102 marks
for the written test and 60 marks for communication skills/presentation. The results
were as follows:
Interview: the grievor 47%, Ms. Legault 80%. Written test: The grievor 89%, Ms.
Legault 97%. Communication skills/Presentation: The grievor 95%, Ms. Legault 100%.
Overall, therefore, the grievor received a score of 67% while Ms. Legault received 88%
for a difference of 21%.
The evidence is uncontradicted that the decision was made based on the foregoing
scores. The only other step taken was to check the references for Ms. Legault. There
were no references checked for the grievor or Ms. Gould. Nor were personnel files
checked for any of the candidates.
The screening process
The Association?s position is that Ms. Legault?s application should have been
screened out, and that she should not have proceeded to the interview stage. It is pointed
out that two of the key qualifications listed in the job posting are ?proven ability to
organize/coordinate the effective delivery of nursing services? and ?supervise/direct
nursing staff.? Pointing to the position description, counsel notes that two of the major
responsibilities of the HCC position are ?Planning, coordinating and supervising nursing
services? for a secure custody young offender facility and ?to provide direct nursing care
to residents? of that facility. Counsel notes that the employer screened Ms. Legault in
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based solely on the information contained in her resume, which was enclosed with her
application. He submits that the resume does not disclose that Ms. Legault had any of
those qualifications.
Ms. Legault has been a licensed Registered Nurse since 1985. Her resume
indicates that from 1985 to 1993 she was employed as a Registered Nurse at several
hospitals including as Charge Nurse between 1987-1990. Except for a brief period of
employment as a nursing consultant for a law firm, since 1993 she had been employed in
a research capacity, conducting and coordinating drug trails at McMaster University and
at various Pharmaceutical companies in the private sector. In her cover letter she states
that ?Recently for the last 8 years I have worked as a Senior Clinical Research
Associate?, and that ?My primary responsibilities have been physician site management
for clinical trials, regulatory documentation, site monitoring, study initiations and study
closeouts?.
Counsel for the Association points out that in the job posting, the employer was
seeking ?a qualified professional to direct health care services within a multidisciplinary
model?, who had ?proven ability? to effectively carry out the listed functions. It is
submitted that Ms. Legault did not meet those requirements. She had never worked in a
corrections setting in any capacity. Moreover, since 1993 she had been employed
exclusively in an academic/research environment, and had not been involved at all in the
actual delivery of nursing services or in supervising of nursing staff providing nursing
services. Since 1993 she had not been involved in hands on delivery of health care or in
the supervision of nurses delivering health care.
The screening of applications was performed by Ms. Melanie Ferdinand, at the
time Deputy Superintendent of the Sprucedale Youth Centre. Ms. Ferdinand testified that
it was her assessment based on the resume that Ms. Legault possessed the managerial and
administration skills as set out in the screening criteria, and felt very comfortable that she
could transition very well into the posted HCC position. Under cross-examination Ms.
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Ferdinand disagreed that Ms. Legault?s resume did not indicate any experience in
delivery of health care to patients since 1993. She testified that she understood that in
clinical trials for drug testing there were patients involved, and that therefore Ms. Legault
would have been required to use nursing skills. When Association counsel suggested that
from 2004 to the time of the competition, Ms. Legault?s resume shows no indication of
direct health care services to patients anywhere, Ms. Ferdinand responded that she
?disagreed somewhat?, because in her view, the subjects of the drug trials were
?patients?, and Ms. Legault would have been overseeing staff doing drug trials with
patients. She saw that as part of delivery of healthcare services.
When Ms. Ferdinand was further questioned about Ms. Legault?s apparent lack of
proven ability and experience in delivery of health care services in an institutional setting
ever, (and anywhere since 1993) Ms. Ferdinand testified that applicants were screened
not on the basis of the contents of the job posting, but on an application of the six
screening criteria. Any applicant who met at least four of the six screening criteria was
screened in. Therefore, since in her assessment Ms. Legault met that threshold, it was
irrelevant whether Ms. Legault possessed experience in the delivery of health services.
Any applicant who was licensed as a Registered Nurse and had good managerial and
administrative skills would pass the screening, even if she had no ?proven ability? to
organize/coordinate the effective delivery of nursing services, and to direct and supervise
nursing staff as set out in the job posting.
Ms. Ferdinand admitted that she had no first hand knowledge of what a nurse
overseeing a drug trial does, or what Ms. Legault did in her past positions. The only
information she had was that contained in Ms. Legault?s application, including her
resume. I find that Ms. Ferdinand?s attempt during testimony to assert that Ms. Legault?s
application disclosed experience in the delivery of health care services to patients, and in
the supervision of nursing staff who delivered health care services to patients, was
extremely unreasonable. For example, Ms. Legault?s resume indicates that from 2004 to
2005 she was employed by a law firm as a ?Registered Nurse Consultant?. Despite
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repeated questioning on cross-examination, Ms. Ferdinand insisted that in that capacity
Ms. Legault?s duties would have been part of what she considers delivery of health care
to patients, namely the clients who had retained the law firm with respect to litigation. It
was clear to me that Ms. Ferdinand was making that assumption without any factual
information.
While I find Ms. Ferdinand?s testimony in that respect not reasonable and not
credible, I nevertheless conclude that her ultimate decision to screen Ms. Legault in ought
not to be disturbed. This was an ?open? competition. At the screening stage, the
employer is entitled to be flexible in what it demands, in order to ensure that there would
be an adequate pool of applicants for the job competition, including external applicants.
Ms. Ferdinand assessed that Ms. Legault?s qualifications and skills, although different
from those described in the job posting, were transferable to suit the HCC position.
Particularly in an ?open? competition, accepting transferable skills and qualifications for
purposes of screening applications is reasonable. This is recognized by the Management
Board Secretariat ?Manager?s Guide to Staffing in the Ontario Public Service?, February
2001 at p. 64 which provides that when screening resumes and applicants, one must
?Give full consideration to applicants? transferable skills; skills gained in one field may
be transferable to another, even when the knowledge required by the positions is
different.? That is a reasonable requirement, and the employer was entitled to comply
with it.
In summary, while I do not accept some of the reasoning offered by the employer,
overall I am not prepared to conclude that the employer?s decision to allow Ms. Legault
to proceed to the interview stage should be struck. Ms. Legault had sufficient
transferable qualifications and skills to pass the screening.
The marking of interview questions
The Association led evidence through the grievor on the answers she provided to
the interview questions. In addition, Ms. Mary Byberg, a Dispute Resolution Officer
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employed by the Association testified. She had reviewed the scoring sheets for Ms.
Legault and the grievor prepared by the three members of the selection panel at the
interview, and created a comparative analysis of the answers and the appropriate marks
that, in her opinion, ought to have been given. The employer called the three members of
the panel to testify, Ms. Ferdinand who was chair, Ms. Joanne Shaw, (Manager of
Corporate Health Care) and Mr. Patrick Morrison (at the time Deputy Superintendent at
the Hamilton Detention Centre). Under cross-examination, each of the panel members
conceded that in certain cases the grievor could have received credit for the answers she
provided, in addition to the marks they had given. In his final submissions Association
counsel acknowledged that despite this evidence, the Association faced an uphill battle
convincing the Board that, but for the inconsistent marking, the grievor would have
received a score which would have been within ?relative equality? to Ms. Legault?s
score. I agree. While I would not go into detail, I found generally, based on the
testimony of the panel members, that they did not treat Ms. Legault and the grievor
consistently in the scoring of their respective answers. They refrained from seeking
clarification from the candidates about their answers. In fact the evidence was that it was
a deliberate policy not to do so. However, in the cross-examination it was evident that
the panel members, in many cases, interpreted or made assumptions with regard to Ms.
Legault?s answers to her benefit, while the grievor did not get that same generosity. In
many instances, where the grievor?s answers were not very specific and open to
interpretation, or if the exact terminology was not used, it was interpreted to the detriment
of the grievor. There were many instances where Ms. Legault had been credited with
marks for a question, but there were no notes indicating that she provided the desired
answer. When questioned, the panel members? response was to the effect that ?she must
have given the correct answer? or ?I must have heard something to that effect?. A similar
situation was not evident in the grievor?s score sheets.
I am satisfied that this differential treatment was not a result of any bad faith on
the part of any of the panel members. Indeed, the Association did not allege bad faith.
However, the evidence strongly suggests that the panel members pre-judged Ms. Legault
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to be a very superior candidate very early in the interview process, and that this
influenced their assessment of the answers provided.
Mr. Morrison testified that very early in Ms. Legault?s interview it became
apparent to him that she had thoroughly researched the Sprucedale Youth Centre, and
had prepared herself for the interview extremely well. Later in his testimony, he
commented that in his 29 years as a manager, he had never seen an external candidate
?come in and do so well?. The grievor had testified that following the announcement of
Ms. Legault?s appointment, she had a de-briefing meeting with Ms. Shaw. She had asked
Ms. Shaw ?what went wrong with me?. Ms. Shaw?s response was to the effect ?Ms.
Legault just blew us away. What can I say?. During cross-examination Ms. Shaw agreed
that she would have said that to the grievor. When asked whether in fact the panel was
blown away by Ms. Legault, Ms. Shaw said ?Yes. We were very impressed with her as a
candidate?.
The Manager?s Guide to Staffing explicitly recognizes that there are certain biases
which should be avoided because they may reduce the effectiveness of the selection
decision. At p. 75, those biases to be avoided are listed. It includes the following:
Forming a global impression of a candidate, positive or negative, based
on a characteristic or other information that may bias you:
Making early judgments before your competition process has been
completed; this may make you less objective during the remainder of
the process.
The evidence strongly suggests that at least two of the panel members did exactly
what the Guide cautions against. I am also convinced that this translated into additional
marks for Ms. Legault. In numerous instances, during cross-examination, it became
apparent that where Ms. Legault had provided an answer which was general or open to
interpretation, it was assumed that she intended to convey the expected answer. In
several instances, employer witnesses explicitly testified that Ms. Legault was credited
marks because the panel member interpreted her answer to mean the correct answer. The
grievor on the other hand, did not receive a similar benefit of the doubt. In many
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instances, her answers were interpreted to her detriment. Unless she used the exact
technical term or provided specifics, she was not given credit.
Even though not a result of bad faith, I find that the scores allotted to the grievor
and Ms. Legault were influenced as a result, to the detriment of the grievor. It is
impossible to determine what the scores for the two would have been, had the panel not
been influenced by the pre-judgment. Given the wide-spread of 21% in the scores, I am
unable to conclude that but for the improper influence, the grievor?s score would have
been within relative equality of Ms. Legault?s score.
Sole reliance of interview/testing
In this grievance, where the competition is between an AMAPCEO member and a
non-AMAPCEO member, the governing provision is article 18.3.2. It is a relative
equality provision. The Association accepted that it bore the onus of proving relative
equality. There was also no dispute that in cases such as this, if the difference between
the junior applicant and the senior applicant is less than by a substantial and demonstrable
margin, the senior applicant is to be appointed. [Re Lady Galt Towels, (1969), 20 L.A.C.
382 (Christie)].
In applying article 4.3 of the OPSEU collective agreement, the Board has long
established principles it expects the employer to follow in conducting a job competition.
Since article 4.3 is also a ?relative equality? provision, those principles also are apt with
respect to article 18.3.2 of the instant collective agreement. In the often-cited decision in
Re MacLellan and DeGrandis, 506/81 (Samuels), the Board summarized the standards
expected in a job competition as follows, at pp. 25-26:
The jurisprudence of this Board has established various criteria by which to
judge a selection process:
1.Candidates must be evaluated on all the relevant qualifications for the job
as set out in the Position Specification.
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2.The various methods used to assess the candidates should address their
relevant qualifications insofar as is possible. For example, interview
questions and evaluation forms should cover all the qualifications.
3.Irrelevant factors should not be considered.
4.All the members of a selection committee should review the personnel files
of all the applicants.
5.The applicants? supervisors should be asked for their evaluations of the
applicants.
6.Information should be accumulated in a systematic way concerning all the
applicants.
The evidence indicates that the grievor had been employed as a licensed
Registered Nurse since 1978. From 1978 to 1987 she was employed in a hospital setting,
including some charge nurse duties. She moved to the correctional setting in 1987, when
she commenced as a staff nurse at the Hamilton-Wentworth Detention Centre. In 1988
she transferred to the Burtch Correctional Centre as a Staff Nurse, and remained in that
position until 1996. From 1996 to 1997 she served as the Health Care Coordinator
(HCC) of Burtch Correctional Centre on an acting basis, before assuming that position on
a permanent basis from 1997 to 2003. In February of 2003 the grievor assumed duties as
the HCC at the Brantford jail, and was in that position at the time of the job competition
for the Sprucedale HCC position, which is grieved here.
It is, therefore, undisputed that at the time of the job competition under review, the
grievor had occupied the identical position (identically classified also) for approximately
2½ years at the Brantford jail. Immediately previous to that, she had occupied the HCC
position at the Burtch Correctional Centre for approximately 8 years, 6 years in a
permanent capacity, and 2 years in an acting capacity. In other words, for over 10 years
immediately preceding her participation in the instant competition, the grievor had
occupied the same position she was applying for. Since her prior employment was in a
different ministry, she was in effect seeking a lateral transfer through a job competition.
The evidence does not disclose that the grievor had any performance, discipline or other
work related problems in any of the positions she occupied. In her application, she
provided the employer with the names of four individuals for purposes of references,
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including the Superintendent and Deputy Superintendent of the Brantford jail, to whom
she reported in her capacity as HCC.
The competition process following the screening of the applications consisted of
an oral interview comprising 7 questions, immediately followed by a written test
requiring the candidates to provide written answers to 2 questions. The performance of
the candidates in the interview and test was also assessed to score them on their
communication and presentation skills.
Ms. Ferdinand, who served as the chairperson of the selection panel, was
responsible for doing the reference checks for candidates. During her testimony in chief
she was asked ?what role, if any, did reference checks play in the selection process??
She replied: ?We didn?t score references. We used references only to identify if there
were any concerns about the candidates, and to support what we had seen at the
interviews?. When asked whose references were checked, Ms. Ferdinand testified: ?I did
the references. In consultation with Human Resources, I only checked Ms. Legault?s
references since the spread in the interview scores between her and the other candidates
was so large, and because we were not scoring references?. She testified that Ms.
Legault?s references confirmed that she had a positive work record. Ms. Ferdinand
testified that right after the interviews the panel identified Ms. Legault as the successful
candidate, subject only to her obtaining satisfactory references. Once the references
came out positive, Ms. Legault was offered the posted position.
In cross-examination, Ms. Ferdinand testified that at the end of the interviews of
the 3 candidates, the panel used a calculator to total the marks of each candidate in the 3
categories ? the oral interview, the written questions and communication. Since Ms.
Legault had a score of 88% as compared to the grievor's 67%, Ms. Legault was identified
as the successful applicant. She confirmed that on the day of the interviews itself, the
decision was made to award the position to Ms. Legault, subject only to her obtaining
satisfactory references.
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Ms. Ferdinand agreed that the candidates? personnel files and performance
evaluations were not reviewed by any of the panel members. Association counsel
repeatedly questioned Ms. Ferdinand as to whether any consideration was given to the
fact that the grievor had competently performed in the identical position for
approximately 10 years. She did not answer ?yes? or ?no?, but stated that she went on
the basis of the selection criteria provided. She reiterated that personnel files, and
performance appraisals were not reviewed, and references were not checked, because she
received advice from Human Resources that it was unnecessary, given the large margin
in the interview/test scores.
Ms. Shaw, who was the technical expert on the selection panel, also confirmed
that the successful applicant was identified as soon as the scores were tallied up following
the interviews. She stated that references were used only to confirm that decision, and
stated, ?For example if it was disclosed in the reference check that the applicant we had
selected had abused a client, we would have had a great concern about hiring her.?
During his examination of witnesses, employer counsel attempted to elicit
evidence to establish two things. First, that the interview questions were designed to
draw out, and did draw out, the work experience of the candidates. On that basis, counsel
submitted that the candidates? past work experience and performance was adequately
assessed through the interview and testing process itself. Second, it was suggested that
because of her significant experience in the OPS, and particularly in a HCC position in
the OPS, the grievor would have had an advantage over Ms. Legault in answering the
interview and written questions. On that basis it was argued that the grievor?s work
experience would have been credited, and reflected in the scoring of the interview and
testing process. It was up to the grievor to use her experience in the OPS and in the HCC
position itself to her advantage. If she failed to do that, she has only herself to blame.
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Conclusion
The standards expected in conducting a job competition in the OPS as described in
Re MacLellan and DeGrandis have been set out supra at pp. 11-12. The evidence is
overwhelming that in the present case, the decision was made, for all practical purposes,
solely on the basis of the interview/testing scores. I find that there was no attempt to
assess past work experience and performance in any manner, and that the interview and
test questions did not permit such an assessment. Even if it did, it is not sufficient to
consider the candidates? experience and work performance through the answers provided
during a brief interview/testing process, when much more extensive and reliable
information is available by way of reference checks and a review of performance
evaluations and personnel files.
Arbitrators have disapproved the approach adopted by the employer in this case.
Referring to the decision in Re. W.C.B. and W.C.B.E.U., April 26, 2983 (Bird), arbitrator
Hope in British Columbia Workers Compensation Board and Workers Compensation
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Board Employees? Union, (1989) 4 L.A.C. (4) 141 at p. 157 wrote:
But nothing in the decision suggests that the employer is bound to treat
directly related experience as having the same weight as actual experience.
We agree with the union submission that actual experience in the job
classification in dispute can be seen as speaking directly to the question of an
applicant?s abilities and qualifications to perform in the disputed position. In
their evidence the panel members explained their approach to evaluating the
experience factor by saying, in effect, that they incorporated in the factor an
assessment of the quality of each applicant?s experience based upon the
subjective opinions of the panel members generated in the interview itself.
In that subjective process, it was clear that eight years of actual experience in
an equivalent position could have great weight or marginal weight depending
on how the applicant was perceived by the panel members in the interview
process. That is, actual experience was not given any weight independent of
the interview process. It was weighted exclusively on the basis of how
applicants were perceived by the panel members in the interview process. As
with education, the employer, having isolated experience as a relative factor,
was bound to weigh that factor in a manner that fairly addressed the abilities
and qualifications of the applicants for the disputed position. The conclusion
reached by the two panels in this dispute on the factor of experience raised a
question about the suitability of the approach.
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At p. 158 Mr. Hope concluded:
The result of the approach of the panel members was that they did not evaluate
each applicant?s experience, they evaluated the applicant?s performance in the
interview and sought to interpolate that performance as the common
denominator in the experience equation. By that means, the grievor?s eight
years of actual experience became equal to the limited actual experience of the
two successful applicants. They were perceived as having related experience,
but it was clear in the evidence that it was their performance in the interview
that caused them to be placed on equal footing with the grievor.
It is significant to note that in the process disapproved by arbitrator Hope, he noted
at p. 158 that ?The general thrust of her evidence was that the primary appraisal tool is
the interview and that the review of an applicant?s history of employment is of only
peripheral significance and is used as a means of checking the score achieved in the
interview process?. In contrast here, the grievor?s employment history, which would
have been readily available, was not reviewed at all.
At p. 159 arbitrator Hope wrote:
It was quite clear on the evidence that the interview process suffers all of the
vulnerability inherent in a first impressions approach. In this case the panel
formed their entire impression of each applicant in a one-hour interview.
What that process ignored in this dispute was the accumulated experience of a
thirteen-year employee with eight years of experience in the job.
At p. 168 he observed:
An employee who has worked for a lengthy period of time in a classification
must be seen prima-facie as having the abilities and qualifications to perform
in positions falling within the classification. Where the employer seeks to
discount that experience in a job competition, the onus is upon it to
demonstrate that junior applicants with much less experience can be fairly
assessed as possessing abilities and qualifications that are demonstrably
greater than those of the grievor. Here the evidence adduced in that regard
consisted primarily, if not exclusively, of the subjective opinions of panel
members whose exposure to the applicants came in a one-hour interview. In
short, the employer failed to establish evidence of a ?discernible, material
difference? between applicants around which to pivot its decision.
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All of the observations made by arbitrator Hope apply in the present case. The
employer determined that Ms. Legault was superior in qualifications and ability by a
substantial margin over the grievor. This determination was based exclusively on the
basis of the performance of the two candidates during a brief interview/testing process.
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In Re University of Toronto, (1995) 52 L.A.C. (4) 387 (Burkett) the grievor had
been denied the position of lead-hand. Arbitrator Burkett found that the selection panel
had ignored the grievor?s 17 year history of employment, including the two most recent
years in a lead-hand position. In concluding that the competition process was
fundamentally flawed, he wrote:
The members of the interview panel relied solely on the interview of Mr.
Kyriakopoulos to conclude that he lacked both the judgment and the
interpersonal skills necessary to be a lead hand caretaker working in the
student residences. While the cases cited by the University stand for the
proposition that these attributes can be assessed in an interview, they do not
stand for the proposition that the assessment of these attributes should be
restricted to performance in an interview. As arbitrator Cherniak was careful
to observe in Re Fairview Home Inc. (supra):
Interviews cannot and should not be used however as a complete method
of assessment. The ability to conduct oneself during an interview is only
one facet of an employee?s abilities, and often it is not a particularly
significant or relevant facet. So much depends unfortunately, on the
ability of the interviewer to go beyond the surface impressions in the
artificial atmosphere of an interview and probe deeply into the
applicant?s vision and knowledge?.
The arbitrator went on to comment that the employer should have considered
the work history of the two applicants a shown through their performance
appraisals and should have spoken with their supervisors. Arbitrator Brandt
reached essentially the same conclusion in his Roman Catholic Separate
School Board award, (supra).
(Emphasis original)
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In Re Greater Niagara General Hospital (1997) 60 L.A.C. (4) 289 (Devlin) the
selection process was based upon an examination with a weighting of 15%, and a
18
behavior-based interview with a weighting of 85%. In upholding the grievance, arbitrator
Devlin wrote as follows at pp. 305-306:
There is no question that an interview may be a useful tool in assessing
applicants for a job vacancy. ? Nevertheless, as pointed out by the
Association,the B.B.I.[behaviour-based interview] depends largely on an
applicant?s ability to recall and recount appropriate anecdotes and the
applicant?s mark may vary based on the nature of the anecdote selected.
Moreover, the B.B.I. process is premised on the theory that the best predictor
of future performance is past behaviour in similar circumstances. This theory,
therefore, would appear to support consideration of actual job performance. In
any event, as noted by the Association, there are a number of awards in which
it has been held that it is inappropriate for an employer to rely solely on test
scores or interview results. Instead, it has been determined that a balanced
assessment requires a consideration of all relevant factors, including test and
interview results, on-the?job performance, related courses and performance
appraisals: see, by way of example, Re Inglis Ltd. And US.W. Loc 4487
(1979), 22 L.A.C. (2d) 175 (O?Shea); RE Winnipeg (City) and C.U.P.E, Loc.
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500 1990), 12 L.A.C. (4) 231 (Freedman), and Re Fairview Home Inc. and
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Fairview Nurses MNU, Loc. 21 (1991) L.A.C. (4) 223 (Cherniak).
(Emphasis added)
In Re Sudbury Regional Hospital, September 9, 2003 unreported (R.M. Brown) at
p. 5 the arbitrator wrote:
The union contends the competition process was ?fundamentally flawed due to
the 94% weighting on the interview itself? and ?this fact alone is sufficient to
require a re-run of the competition.? In support of this contention, the union
relies upon the following passage from Leading Cases on Arbitration by
Mitchnick and Etherington:
In recent years, many arbitrators have held that undue reliance on an
employee?s interview performance created a fatal flaw in the selection
process. In such cases, excessive emphasis on the interview has often
come at the expense of a more balanced consideration of other relevant
factors, including work history, past training, performance appraisals,
comments of supervisors and coworkers, and test scores. The risk of
placing too much reliance on an interview is especially acute where the
Grievor has had significant work experience in the employer?s
establishment, since this is likely to offer a more dependable prognosis of
future performance than the ability to communicate at an interview. (at
19.4.2; emphasis added)
19
The authors suggest jobs should be award based upon not only interview
results but also past performance on the job as measured by performance
appraisals and comments of supervisors. Two awards are cited as illustrative
of the approach generally taken by arbitrators: University of Toronto and
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Canadian Union of Public Employees (1995), 52 L.A.C. (4) 387 Burkett);
andGreater Niagara General Hospital and Ontario Nurses? Assoc. (1997), 60
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L.A.C. (4) 289 (Devlin).
At p. 10 arbitrator Brown concluded:
Turning to the case at hand, I conclude the selection process was
fundamentally flawed because it was based largely upon the answers given by
candidates during their interviews and paid little heed to how they had
performed on the job over a period of more than twenty years. Actual
performance at work entered into the selection process only via an applicant?s
response to the six behaviour-based questions. Interviews in general and
behaviour-based questions in particular are useful tools, but both have their
limitations. As Arbitrator Cherniak commented in Fairview Home, ?the
ability to conduct oneself during an interview is only one facet of an
employee?s abilities?. And a noted by Arbitrator Devlin in Greater Niagara
General Hospital, the score awarded for answers to behaviour-based questions
?depends largely on an applicant?s ability to recall and recount appropriate
anecdotes.? The job performance of candidates should have been considered,
along with their interview scores, because it was relevant to several of the
qualifications set out in the job posting ? i.e. positive work record, good
organizational and interpersonal skills, ability to work independently and as a
team player, and good communication skills
The Grievance Settlement Board has also disapproved undue reliance on the
interview process in assessing qualifications and ability of applicants. In Re Esmail,
1186/87 (Dissanayake), the Board made the following factual findings: (pp.12.13)
Despite Employer counsel?s attempts to convince us otherwise, we are
satisfied that the panel relied solely on the interview results in filling the SAC
positions. Both Ms. Juda and Ms. Gibbs testified that they gave marks based
solely on the answers given to the questions at the interviews and did not take
into account information they were aware of but not repeated as part of the
candidates? answers. On the basis of the marking Ms. Jelley scored an average
of 88/110 and the grievor 75/110. The panel concluded that the difference was
significant enough not to consider anything in the resumes, employee files or
performance appraisals. While two of the three panel members had read the
resumes, we are satisfied that their contents were not assessed in determining
the relative qualifications and ability to do the duties of a SAC. The same is
20
true of employee files and performance evaluations. These had not been
recently reviewed by any of the panel members. While Ms. Juda and Ms.
Gibbs were familiar with the employees? work, there is no evidence that that
knowledge was analyzed in any way as they related to the suitability for a
SAC position. As Ms. Juda put it ?the scores of the two top employees were
so much higher, there was no need to consider anything else?.
At p. 19-20, the Board concluded:
We have concluded that the selection panel relied solely on the interview
marks in selecting the winners. This by itself is reason to strike down the
competition. See Re Poole, 2508/87 (Samuels) and Re Clipperton, 2554/87
(Watters). Also, a job interview under article 4.3 must not be approached as a
means of judging a performance. The purpose is not to determine who can
better handle an interview. It is a process of information gathering for the
purpose of ascertaining the true abilities and qualifications of the candidates.
In Re Esmail (supra) two of the panel members had reviewed the employee files
and performance evaluations. However, the competition process was still found to be
fundamentally flawed because that review had taken place some time earlier, and because
the contents of the employee files or performance evaluations had not been analyzed as
they related to the suitability for the posted position. In the present case, there is no
evidence that any of the Board members had reviewed employee files or performance
evaluations at any time.
I have already concluded that the interview and test questions did not permit any
assessment of work experience and performance. I have further found that the grievor's
experience in the positions she had held did not put her at an advantage during the
interview/testing process. However, even if that was the case, this Board has held that it
is insufficient. See, Re Nixon, 2418/87 (Fisher).
With respect to reference checks, in Re Bent, 1733/86 (Fisher) at p. 4, the Board
observed:
The evidence is clear that the Ministry only contacted the supervisor of the
successful candidate for a reference check and did not contact any other
21
supervisor. This practice exists in spite of numerous previous Grievance
Settlement Board decisions that say it is an essential part of the selection
process to do a reference check on the candidates. This Ministry, however,
seems to adopt the practice that they are only verifying their decision by
checking with the supervisor of the successful candidate presumably to see if
the reference check bears out their opinion. This again emphasizes the slavish
devotion that the Ministry seems to have with respect to interview scores and
its failure to understand that an interview is only part of the selection process,
another part being a reference check of all the candidates who have at least
obtained interviews.
In that case the Board concluded that the failure to contact the grievor?s supervisor
for a reference was a defect. However, the seriousness of the defect was found to be less
because the position the grievor had held previously ?had very little, if anything, to do
with the job for which he was applying?. Quite in contrast, the defect in the instant case
is of much greater significance because for some 10 years the grievor had held the same
position as the one she had applied for. Therefore, a reference check with her supervisors
can be expected to provide useful and relevant insight into the grievor?s qualifications
and suitability for the position she had applied for. This is so despite the fact that the
grievor?s previous HCC positions were in an adult facility, while the posted HCC
position was in a youth facility. The employer chose to not seek that information.
In Re Liblik/Scipnek, 2525/91 (Dissanayake) at pp. 19-20 the Board wrote:
As the Board has stated on many previous decisions, the employer is entitled
to conduct interviews and/or tests to assess the candidates? relative
qualifications and abilities to perform the duties in a posted position. Where
the employer has no evidence before it, which is more reliable than the
performance at the interviews, it many have no choice but to rely solely on the
interview scores. However, where some candidates have actual employment
experience, particularly in the posted job itself, the evaluation of their
performance on the job must usually be preferred to the interview results. At
the very least, that must be given serious consideration in the overall
assessment of the employee?s qualifications and ability to perform the duties
of the posted position.
We are satisfied that the employer acted in complete good faith in conducting
this competition. However, we are convinced on the evidence before us, that
22
it gave little or no consideration to the experience and actual job performance
of the candidates.
Based on the evidence in the instant case, a similar conclusion is unavoidable.
The job competition carried out by the employer was fundamentally flawed and its results
cannot stand. I so find, and as a result the complaint succeeds.
Remedy
It is open for this Board in the circumstances, to take one of several decisions with
respect to remedy. One, which employer counsel advocated, is to award no redress
beyond a declaration that the collective agreement was violated. This would be
appropriate where I am in a position to determine that even if the employer had avoided
the errors it had committed, the grievor would not have been able to establish relative
equality to Ms. Legault. Association Counsel urged me to award the position to the
grievor. This would be an appropriate response only where I can be satisfied, based on
the evidence, that the grievor?s qualifications and abilities were in fact relatively equal to
those of Ms. Legault.
Unfortunately, the evidence does not permit me to make either determination
urged upon me by the respective counsel. Ms. Legault did not testify. Beyond having
access to the application and resume she submitted, I have no information relating to her
past work experience. For example, there was disagreement between the parties as to the
extent of Ms. Legault?s involvement in delivering health care to patients, while
occupying the various positions listed in her resume. No job descriptions of the
positions held by Ms. Legault are before me. Nor are any of her performance appraisals.
I am only privy to Ms. Ferdinand?s testimony that Ms. Legault?s references were positive.
Similarly, with respect to the grievor, I have her testimony to the effect that she has had
no performance issues raised in the positions she had held. The contents of her personnel
file, particularly her performance evaluations, are not in evidence. I would have to
speculate how her supervisors viewed her performance.
23
In urging me to award the position to the grievor, Association counsel emphasized
the undisputed fact that the grievor had for many years been employed in a similar HCC
position, without any concerns being raised about her performance. This evidence would
establish that the grievor had the qualifications and ability to perform the HCC duties.
Indeed, that was not disputed by the employer. However, the issue before me goes
beyond the grievor?s qualifications and ability to perform in the posted position. In order
to be in a position to award the position to the grievor, I must be satisfied that the
grievor?s qualifications and ability are relatively equal to that of Ms. Legault. As noted, I
lack the information with respect to both candidates that would permit me to make a
decision on relative equality. The situation would have been different if the governing
collective agreement provision was not one of relative equality, but one which required a
posted position to be awarded to the more senior qualified applicant. Since I have
evidence upon which to conclude that the grievor was qualified for the posted position,
and since she was the more senior applicant, I would have awarded the position to her.
However, the assessment of relative equality requires more information that what is
before me.
In all of the circumstances, it is appropriate to award the same remedy awarded in
Re Esmail, for the same reasons set out at pp. 21-22:
In the present case, the Employer conceded that the grievor was qualified for
the SAC position. However, that concession is not determinative. To award
the job to the grievor, we must satisfy ourselves that the grievor?s
qualifications and abilities to perform the SAC duties are relatively equal to
that of Ms. Jelley. Upon a consideration of all of the evidence before us, we
are not satisfied that the information before us allows us to make that decision.
For example, the employee files and performance appraisals which were not
reviewed by the selection panel were not made available to this Board either.
We are not persuaded that this is an appropriate case in which we should
substitute our judgment for that of the Employer by awarding the SAC
position to the grievor. It is more appropriate to direct a second competition
subject to a number of conditions.
24
For all of the foregoing reasons, the Board directs that the appointment of Ms.
Legault to the HCC position at Sprucedale Youth Centre be rescinded, and that the
competition be re-run subject to the following conditions:
(a)The competition shall be restricted to the grievor and Ms. Legault. Should Ms.
Legault elect not to participate or decline the position, the grievor shall be
awarded the position.
(b) The competition process shall be commenced no later than 30 calendar days from
the date of issuance of this decision, subject to extension only by mutual
agreement between the employer and the Association.
(c)The selection panel shall not take into account the experience, knowledge and
ability Ms. Legault may have acquired since her appointment following the initial
competition in 2005, or her performance in the position since that appointment.
(d)The selection panel shall have regard to the criteria for a proper selection process
set out by this Board in Re MacLellan and DeGrandis, set out supra at pp. 11-12.
In particular, the selection panel shall review the personnel files, including the
performance appraisals if any, of the two employees.
In summary, the complaint is allowed. I retain jurisdiction to deal with any
disputes that may be encountered in the implementation of this decision, and with any
remedial issues that remain following the conclusion of the competition conducted
pursuant to this decision.
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Dated this 4 day of July 2008 at Toronto, Ontario.
Nimal Dissanayake
Vice-Chairperson