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HomeMy WebLinkAbout1988-1402.MacDonald.92-01-29 DecisionONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, MSG 1Z8 TELEPHONE/TELEPHONE: (416) 326-1388 180, RUE DUNDAS QUEST, BUREAU 2100, TORONTO (ONTARIO), MSG 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 1402/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT, Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (MacDonald) Grievor - and - The Crown in Right of Ontario (Liquor Licence Board of Ontario) (Liquor Control Board of Ontario) Employer BEFORE: W. Low Vice-Chairperson G. Majesky Member D. Daugharty Member FOR THE F. Campbell GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE S. Shamie EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Stone Barristers & Solicitors HEARING May 17, 1991 pzcisiox The Grievor, Ivy MacDonald, grieves that she was not awarded the position of an inspector with the Liquor Licence Board of Ontario with a classification of Licence Inspector, Grade 2. Ms. MacDonald has been employed since 1975 by the Liquor Licence Board, and at the time of the grievance held the position of Acting Assistant Licence Officer. Ms. MacDonald grieves pursuant to Article 21.05(a) of the Collective Agreement between the Liquor Control Board of Ontario and the Liquor Licence Board of Ontario and Ontario Liquor Boards Employees' Union. There are two issues before the Board: (a)Was Ms. MacDonald qualified to perform the work of the posted position of Inspector? and (b)Was the selection process fatally flawed? The Grievor does not challenge the five fundamental propositions put forward by the employer relating to the rights of management in selecting a candidate to a position, namely: 1.That management has the right to determine the qualifications of the job on the basis of relevance to the job, provided that the qualifications are not set in an arbitrary fashion or in bad faith; 2.That "qualification" means that the candidate must possess knowledge of the job functions and possess sufficient skill and ability to carry out the requisite tasks and perform the work required by the position at a full working level at the time of 2 the competition; 3.That if the candidate does not have the minimum of qualifications, there is no obligation on management to interview or to hire; 4.That the initial onus is on the grievor to show that he or she is qualified; and 5.That if the grievor meets this onus, then the onus shifts to the employer to show that the grievor is unqualified. In the competition announcement which was Exhibit 4 in this hearing, the qualifications for the position were set out as follows: "Knowledge of the Liquor Licence Act and Regulations sufficient to provide guidance on, and enforce its contents; demonstrated ability to interpret and apply legislation and regulations; good knowledge of the principles of law enforcement, investigative techniques and the hospitality industry; excellent report writing and verbal presentation skills; ability to interact with law enforcement and regulatory agencies, licencees and the public; ability to work independently, making difficult decisions and meeting deadlines; willingness to work variable hours including nights, weekends and statutory holidays; valid driver's licence (must be able to initially provide office space within place of residence) and be willing to travel and relocate anywhere in Ontario." The grievor contends that she is qualified to perform the work of inspector by reason of the experience gleaned in the course of her duties as secretary, typist, and more latterly, as a Permit Approval Clerk and Acting Assistant Licence Officer. The Grievor 3 testified that, as secretary from 1975 to 1979, she had worked with inspectors, typed their statistics and their reports and answered their telephone calls. Between 1979 and 1982 when she held a position as typist, she worked with a Licence Officer doing routine office work. From time to time, she had dealings with inspectors in the nature of filling out forms requesting that an inspector go out to take measurements of premises, and as Acting Licence and Permit Officer, she also sometimes had dealings with inspectors. The Grievor also indicated in her application letter enclosing her resume that she had been "researching law enforcement and investigation". The Grievor's work experience, however, as appears in her resume and in her oral evidence, was within the area of processing licences and permits. The employer does not dispute that the Grievor's performance record in the posts that she held was excellent. The vacancy for the inspector position was advertised on July 22, 1988, and closed on August 5, 1988. The Grievor was one of the three internal candidates, but none was granted interviews in the first instance. However, the Grievor was granted an interview pursuant to a settlement at two earlier grievances, the memorandum of which was made Exhibit 6 in this proceeding. Candidates for the position were evaluated in seven areas. Each area was assigned a weight and the evaluation of each of the areas was marked on a five point scale as follows: 0 for 4 unacceptable; 1 for insufficient; 2 for basic; 3 for suitable; and 4 for superior. The weighting of the various areas of evaluation ranged from 1 for those areas where only a basic understanding is required, to 4 for those areas considered to be very important. The first area of evaluation was "qualifications" which was given a weight of 4. Two aspects of qualification were considered and evaluated: law enforcement experience and hospitality industry experience. The Grievor was rated with a "0" or an unacceptable score in both areas as she had neither law enforcement experience nor hospitality industry experience, nor any education or training in these fields. The interview portion of the process was designed to evaluate the candidate's understanding of the role of an inspector and of the Board, her understanding of the Liquor Licence Act and Regulations, her judgment and her analytical and problem-solving skills. There were as well some general questions and a written test. Overall, the Grievor did not achieve a weighted score which was at the "suitable" level. Out of a total maximum weighted score of 84, the Grievor achieved a total weighted score of 41.37 or 49%. On the issue of qualifications, the grievor acknowledged on cross-examination that good knowledge of the principles of law enforcement and investigative techniques and of the hospitality industry were important qualifications for the job of inspector. 5 No evidence was adduced to suggest that the Grievor had either a good knowledge of the principles of law enforcement and investigative techniques nor the hospitality industry, nor that she had any experience in these fields. It was contended that because the Grievor, in the course of her employment, had dealings with inspectors, and had on two occasions gone out with inspectors on their duties, that she therefore had relevant experience and that because the Grievor had been reading up on law enforcement and investigation, that she had gained some knowledge of these areas. We cannot accede to this argument. If I were to read a book on surgical techniques, type medical reports for some years and witness several surgical operations, these experiences do not make me qualified to perform surgery. Nor does the kind of contact which the grievor has had with inspectors make her qualified to do their job. Knowledge and experience in the context of qualification for a position must denote a quality of learning which is substantially directed at acquiring those skills necessary to perform the tasks required of a person holding that position, and not merely knowledge of a tangential nature, such as would be acquired through dealings on occasion with a person holding such a position. Mr. Aldous, Director of Inspections and a member of the Selection Panel, testified and indicated that actual experience or formal education in the areas of either law enforcement or the hospitality industry were the qualification criteria used. We can 6 find no reason to depart from the Selection Panel's criteria, and given the evidence before this Board that the Grievor had neither formal education nor practical experience in these areas, we cannot make a finding that the Grievor was qualified for the position. During the course of argument, we were referred to the decision of Arbitrator McLaren in Sabharwal (322/82), for the proposition that the employer has an obligation to provide a period of familiarization. We note, however, that in the Sabharwal case it was a finding of fact that the employer did not require an absolute threshold level of knowledge of the skills required to perform the tasks of the position applied for, and as well, in that case the grievor had done work in the position on a fill-in basis while the predecessor incumbent was absent. The Board found as a matter of fact that the grievor had the necessary qualifications to do the job in accordance with the job posting. In our view, therefore, that case is not applicable to the facts before us. We are also mindful of the more general proposition referred to us and re-stated in the Barry decision of Arbitrator Swinton (334/80), that an employee seeking promotion must be qualified at the time of the job posting in the absence of a provision .in the Collective Agreement entitling the candidate to either a trial or training period. Counsel for the Grievor also referred to Article 21.9(a) of the Collective Agreement which provides as follows: 7 "In the event an employee who has been promoted is unable to perform the requirements of the position in a satisfactory manner within a period not exceeding three (3) months from date of appointment, the employee shall be reclassified to the employee's previous classification and assigned to the step in the salary range attained immediately prior to promotion." In our view, Article 21.9(a) is not intended to provide for probationary promotion of an otherwise unqualified candidate, and therefore the Article has no applicability. In summary, we are unable to find that the Grievor was qualified for the posted position, and would dismiss the grievance on that ground alone. We are asked to consider, however, whether the procedure was flawed, and it is submitted that in the event that we find the procedure to be flawed, a rerun should be ordered. It is contended on behalf of the Grievor that management acted unfairly and unreasonably in assessing her qualifications. It is argued that, because the interview was given in fulfilment of the settlement of the Grievor's prior grievances that the interview was a formality only or had that appearance. It is also argued that the Grievor's knowledge of law enforcement was assessed solely through a review of the Grievor's records and that the interview did not elicit such knowledge. Thirdly, it is argued that an inappropriate weight was given to the interview as opposed to the written test, and that the interview was subjective whereas the written test was objective and ought-to be more heavily weighted. There is no suggestion that there was any difference 8 between the way the Grievor was evaluated as opposed to the way in which any of the other candidates was evaluated, and there is no suggestion that the mechanisms used to determine qualifications were other or less than those published in the competition announcement, namely the resume/application, the personal interview, related testing and references. Management appears to have considered those documents and appears to have undertaken those investigations which it indicated it would do in the competition announcement. While it was suggested that the Grievor's interview was a mere formality, no evidence was adduced in support of this contention, and we are not able to find that the interview was not bona fide, notwithstanding that it arose by reason of an earlier settlement. As to the Grievor's knowledge and experience in law enforcement, investigative techniques and the hospitality industry, we note that the first question on the interview was: "Please give a history of your education, training and experience concentrating on those matters which you believe would be of value in this position.". The question appears to be expressly designed to allow the candidate to expand on any experience and education either not covered in the resume or not adequately dealt with therein. Thus, the Grievor had the opportunity, during the course of the interview, to bring to the attention of the Selection Panel any relevant training and experience she may have had. On the basis of the foregoing, we cannot find that the method used by the Selection 9 Panel in evaluating the Grievor's qualifications was flawed. If indeed questions relating to the Grievor's knowledge and experience ought to have been asked at the interview were not asked, and the procedure was for that reason flawed, we cannot find that the result would be different but for that flaw for it has been acknowledged that information which would have been responsive to such questions was put before this Board during the course of this arbitration, and based upon the evidence so led, we are unable to come to any different conclusion as to the Grievor's qualifications from that reached by the Selection Panel. Finally, it was argued that undue weight was given to the interview which, it is said, was subjective as opposed to the written test which, it is said, was objective. We are of the opinion that this Board ought not to try to second guess the Selection Panel's assessment of what kinds of knowledge and skill are most vital to the performance of the job as opposed to other knowledge and skills which are less vital, unless it is patent that the Selection Panel has strayed from the fundamental principle that qualifications must be relevant and not arbitrary or set in bad faith. As for the contention that the written test was objective whereas the interview was subjective, and the implicit corollary contention that the objective test is more reliable, we would make the observation only that the nature of the job to be performed will determine the appropriate nature of the investigation and testing of the abilities of candidates for the position. In our 10 view, where a position requires the exercise of judgment, discretion, delicacy or discernment, an appropriate assessment of candidates for such position would entail more testing calling for subjective responses than a position entailing duties of a highly technical nature which might call for testing of a more fact- oriented or objective nature. This is not to say, however, that objective testing cannot be carried out orally or that subjective testing could not be carried out by way of a written test. There is no correlation between the two. In this particular evaluation, the written test, which appears to test the candidates knowledge of the Act and Regulations, as well as the ability of the candidate to write a report based on a sample situation, was given a weight of 2 in importance and an overall possible score of 8 out of a total of 84 points. The candidate's understanding of the Liquor Licence Act and Regulations was also tested in Part B of the interview, which was assigned a weight of 3 with a total possible score of 12 out of 84, therefore totalling 20 marks out of 84 which deal with the candidate's knowledge and understanding of the legislation. The balance of the marks are allocated chiefly among qualifications and areas assessing the candidate's analytical judgment, problem- solving skills, communication skills and her comprehension of the roles of the inspector and of the Board. No evidence was adduced to suggest that any of these areas was not relevant, nor to suggest that the relative weights given to these areas was inappropriate or set in bad faith, and there was no material before us upon which we could make a finding that the weight given to each of these areas DAVID DAUGHARTY- ber 11 was inappropriate or unfair. Accordingly, we are unable to accede to the contention that the selection procedure was flawed. For the foregoing reasons, we therefore dismiss this grievance. Dated January 29, 1992. WAI LOW— Vice Chairperson " I Dissent" (Dissent to follow) GARY MAJESKY- Member (AN ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/TELEPHONE: (416) 326-1388 180, RUE DUNDAS GUEST, BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 FACSIMILE /TELECOPIE : (416) 326-1396 February 18, 1992 AMENDMENT RE: 1402/88 OLBEU (MacDonald) and the Crown in Right of Ontario (Liquor License Board of Ontario/Liquor Control Board of Ontario) Please attach the partial dissent from the union nominee to your copy of the above noted decision. Joan Shirlow Registrar JS/dbg Encl. Between: ONTARIO LIQUOR BOARD EMPLOYEES' UNION -and- THE CROWN IN THE RIGHT OF ONTARIO (Liquor Licence Board of Ontario) The Grievance Settlement Board Grievance of MacDonald 1402/88 UNION NOMINEE PARTIAL DISSENT After reviewing the evidence presented in the hearing, I am of the opinion that perhaps the grievor's real motive for seeking the LCBO Inspectors job, stemmed not on the basis of whether or not she possessed certain professional credentials; but, was based on her observances of LCBO hiring practices during the seventies and early eighties. Particularly, it was stated in the hearing that the position the grievor applied for in a job competition, was for many years filled through an Order-in-Council process. In other words, the jobs were political patronage positions. Over the last five or six years, the Ontario Government has attempted to clean-up the irregularities and abuses that this political hiring process created. The problem is that the grievor worked in the same department as the Inspectors, and through years of observation was not obviously impressed with their depth of talent or capabilities. In addition, the grievor also noted that one of the secretaries she worked with also got a promotion to inspector in this manner. After witnessing first hand the internal processes of the inspectorate department, she clearly believed she was of equal ability to others, and could handle the job. Sadly, although the grievor's perceptions with respect to her ability to do the job are well founded, the reality is that the LCBO has put in place Human Resource structures which would address irregularities in the former hiring process. As a result, all positions require a formal job competition based on a desire to seek out the best candidates in terms of skill, ability and experience. As a result, the hiring process is not whether the grievor can do the job, but whether, compared to a field of job candidates, is the grievor the best of the bunch. And that's the way it works in 1992. One final editorial note. The formal abuses which existed in the Order-in-Council process to rill job vacancies, has left a legacy in terms of the perception on other staff in the civil service who were disenfranchised because of not being politically in the know. And as a result, some civil servants will harbour negative feelings of this former regime. ee Additionally, it also demonstrates that perhaps these jobs didn't require the technical sophistication that the Human Resource Planning function tends to ascribe to jobs over time. Because it's obvious that unqualified staff got jobs through the political route, and in the end, I suspect they learned the job and became relatively competent over time. Perhaps the grievor in this matter harbours the same sentiment. And frankly, I can't disagree with her. Respectfully su mitted by, FP CONSULTANT SERVICES GM/mg MARKHAM, Ontario June 15, 1992