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HomeMy WebLinkAbout1989-1738.Colalillo.90-06-20 DecisionONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTA RIO GRIEVANCE COMMISSION DE 11111 SETTLEMENT REGLEMEN'T BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 180, RUE DUNDAS QUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 1Z8 ...... ...... ..... 'TELEPHONE /TELEPHONE: (416) 326-1388 FACSIMILE/TELECOP1E : (416) 326-1396 1738/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OLBEU (Colalillo) Grievor -and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer -and - BEFORE: A. Barrett Vice-Chairperson I. Thomson Member A. Merritt Member FOR THE L. Steinberg GRIEVOR: Counsel Koskie & Minsky Barristers & Solicitors FOR THE L. Thomson EMPLOYER: Counsel Hicks Morley Hamilton Stewart Stone Barristers & Solicitors HEARING: May 15, 1990 - 1 - At issue in this grievance is the selection process used to determine the successful applicant in a job posting for Building Maintenance Mechanic in December, 1989. Article 21.5(a) of the collective agreement states: 21.5(a) "Where employees are being considered for promotion, seniority will be the determining factor provided the employee is qualified to perform the work." In this particular case six candidates were interviewed for the job and the most senior person, Mr. Raffaele, got it. He had, however, the second lowest score on the interview test; a score which was seven marks below the passing mark set by the hiring committee prior to the interviews. The grievor, Mr. Colalillo, is second in seniority after Mr. Raffaele, and scored the highest overall test score. When Mr. Colalillo was informed that Mr. Raffaele had failed the test but won the job, he grieved. One of the hiring committee members told him about the test scores; otherwise he would probably never have known about them. Although he was well aware of his own excellent qualifications and fitness for the job, he was not aware of Mr. Raffaele's qualifications, or lack thereof, until he was told the scores. - 2 - The usual practice with this employer when holding job competitions is to strike a hiring committee of three people who determine a procedure, draw up tests, and interview pre-screened applicants. Often the committee is composed of three supervisors in the department with the vacancy. The direct supervisor of the incumbent has the greatest weight on the committee and makes the final decision in the event of a disagreement. In this particular case, the direct supervisor is Mr. Ian Sheppard. His title is Supervisor of Maintenance, a title which he has held since October 18, 1989. Before that he was the building maintenance mechanic and it was his old job that was to be filled. Mr. Sheppard had never been involved in running job competitions before and looked to his supervisor, Len Edmunds, for guidance. Although we did not hear evidence from Mr. Edmunds, we were told that he has substantial experience in job competitions. The two supervisors now needed a third person to complete the committee. There are no other supervisors in the maintenance department so they turned to Sylvia Beck who is a supervisor in the sales department and had experience of between fifteen and thirty competitions behind her. First, Messrs. Sheppard and Edmunds screened the applications and resumd's and determined that all six applicants were qualified for an interview. Then, with the help of Ms. Beck, they set about devising a test of the skills and abilities required to do the job. They were the technical experts and Ms. Beck guided them in insuring that the questions arose out of the job requirements as specified in the job posting and were clearly stated, and unambiguous. All three decided on a point count for the questions and arrived at a total of 135 for a perfect score. They then discussed what a passing score should be. Both maintenance department supervisors thought 90 or 95 would be an appropriate passing score, but Ms. Beck persuaded them to lower it to a more realistic 80. All finally agreed that 80 would be the passing score. In results, Mr. Raffaele scored 73, and Mr. Colalillo scored 112. Based upon its own criterion of 80 as a passing score, the panel then notified the human resources department of their decision that Mr. Colalillo was the most senior qualified person and should have the job. Ms. Humpfreys, a human resources advisor, received the memorandum from the committee and reviewed it to see if all of the proper procedures were followed and the collective agreement was adhered to. She noted that the committee had used a passing mark to determine qualifications and felt that was not an appropriate way to handle a competition. There was serious disagreement on this issue at the hearing. While Ms. Humpfreys said that she has never seen a competition file where passing marks are used, and does not think they are appropriate, Ms. Beck testified that she - 4 - was trained by the human resources department in running job competitions and was told that there should always be a passing mark assigned to tests. She testified that she has handled all of her fifteen to thirty competitions in the same way, and produced a memo dated December, 1987 (relating to another job competition) where a person from human resources was one of the committee members and it was clearly established what the passing score on the test would be. We were frankly confused by Ms. Humpfreys' insistence that it was improper to assign a passing grade to tests, and that there should be no pre-determined standard to determine if a candidate was successful or unsuccessful in a test. We were further perplexed by Ms. Humpfreys' evidence that she organized a meeting with Mr. Sheppard and Mr. Edmunds (but not Ms. Beck) to tell them how wrong they were to have assigned a passing score. She did not ask if the questions on the test were job related and technical and designed to elicit on-the-job know-how. She testified that she would have acted differently if she had known that the questions were designed to elicit technical knowledge. She says she then would have asked the two maintenance people what the minimum qualifications for the job were. However, she did not do this despite the fact that the test was clearly a technical one on its face. Ms. Humpfreys told Mr. Sheppard there was an onus on him to prove that Mr. Raffaele was not qualified in terms of "minimum qualifications". This seemed to confuse Mr. Sheppard who - 5 - was not sure how to defend the committee's decision. We are told that Mr. Edmunds argued in favour of the committee decision, but after further talk with Ms. Humpfreys, they both changed their minds and decided that Mr. Raffaele was minimally qualified for the job. Mr. Humpfreys then amended their memo by deleting the reference to a passing score and changing the name of the successful candidate to Carmine Raffaele. She then had Mr. Sheppard initial the changed memo, and in due course the job was granted to Mr. Raffaele. Not surprisingly, Sylvia Beck was quite upset when she heard that the committee decision had been changed at the behest of human resources and without any input from her. The hiring committee had spent about thirty hours in their deliberations, and arrived at what they all thought was a fair and equitable decision, only to have it overturned by a non-participant. She is the one who supplied Mr. Colalillo with the test scores and original recommendation that he get the job. While we are still at a loss to understand Ms. Humpfreys' abhorrence of passing scores, we do think she had some other valid complaints about the competition process. The panel did not review performance appraisals of the candidates, not speak to their supervisors. They relied solely on the test scores. That of course is improper when their mandate under the collective agreement is basically to find out if the most senior applicant is "qualified" to perform the work. If he is, he gets the job. At the "revision" meeting Mr. Sheppard reviewed Mr. Raffaele's performance appraisal from his job on the packaging line where he assisted the line mechanic in servicing, setting up and repairing various types of equipment. His performance appraisal is truly excellent and is summarized by the rating "consistently exceeds job requirements." As it turns out, Mr. Sheppard had spoken to Mr. Raffaele's supervisor prior to the competition, but testified that he did not take the (presumably) glowing reference into account when initially deciding that Mr. Raffaele was not qualified for the job. It was when he considered the appraisals and reviewed the test questions and answers that Mr. Sheppard wondered whether the committee had fully and adequately considered the issue of whether or not Mr. Raffaele was qualified to perform the work. Mr. Sheppard said that in the meeting with Ms. Humpfreys he realized that the passing grade was rather arbitrarily set and could just as easily have been higher or lower. We have to infer from Mr. Sheppard's testimony, although he was not specifically asked the question, that upon re-consideration he decided that Mr. Raffaele's superior skills and abilities on the packaging line were transferable to the different machines and equipment in the building maintenance department. It is obvious from the test questions and answers that Mr. Raffaele is not familiar with all of the mechanical equipment and tools used in the maintenance department. We note, too, that Mr. Raffaele's first language is not English and that he has some difficulty expressing himself fluently. We think his difficulty with English contributed to his low test score. For instance, he was asked the question: "When connecting copper tubing without solder what two fittings can be used?" The correct answer was: "compression fitting and flare fitting" for five marks. Mr. Raffaele did not correctly name either. However, the next two questions asked how to instal a compression fitting and a flare fitting respectively, and Mr. Raffaele answered them both perfectly. In response to a question about how to replace a "V" belt on a fan, Mr. Raffaele missed parts of the eleven-step required answer, but correctly answered the "nuts and bolts" of the question. He missed points, for instance, for neglecting to say that after you shut off all power, you wait until the fan stops. Further points were missed for failing to say that you remove the guard before working on the fan and replace it afterwards. He also neglected to say that you should start up the power again once you are finished. Even to us lay people, those steps would appear to be so obvious and self-evident that we can understand why even a person fluent in English might neglect to mention them. In result, we are inclined to believe that Mr. Raffaele's test score did not truly reflect his qualifications to perform a maintenance mechanic job. His glowing performance appraisal indicates that he "is skilful with machinery and is pro-active in spotting problems or potential problems . is pro-active in equipment care and is most helpful assisting in the diagnosis of sudden equipment problems, and exercises good initiative and judgment on decisions with accountability and awareness of consequences in association with the line mechanic." Article 21.5(a) of the collective agreement requires that Mr. Raffaele, as the senior person, shall have the promotion if he is "qualified to perform the work." We have been referred to definitions of "qualified" in arbitral jurisprudence which are of some assistance to us. In Re: International Association of Machinists and Gabriel of Canada Ltd. (1968) 19 L.A.C. 22, it was determined (at p. 23): . . . the term "qualifications" generally refers to formal training or some substitute for it while skill and ability are more personal to the employee." In Re: Great Atlantic and Pacific Co. of Canada Ltd. and Canadian Food and Allied Workers, Local 175 (1976) 11 L.A.C. (2d) 291, a Board of Arbitration chaired by Arbitrator Brandt, examined the term in the following way (at p. 297): 0 The Shorter Oxford English Dictionary defines the word "qualification" as including: "a quality, accomplishment, etc. which qualifies or fits a person for some office or function". The Webster's New World Dictionary similarly defines "qualification" to include: "any quality, knowledge, ability, experience, or acquirement that fits a person for a position, office, or profession, etc.; a requisite". Clearly these definitions of the term are broad enough to comprehend more than mere formal training and can and should be taken to include matters relative to an employee's general ability to carry out his or her assigned tasks." In Re: International Union of Mine, Mill and Smelter Workers, Local 811, in re: Northern Pigment Company Limited (1948) 23 L.A.C., 216, the Board of Arbitration adopted two similar complementary definitions (at p. 219): . . . It is still necessary to determine what is meant by the phrase "are qualified". The phrase might mean "competent" in the sense of having capacity or ability; or it might mean possessed of accomplishments which fit one for a certain function (see Murray's New English Dictionary, vol. 8, p.16); or it might indicate a situation where the capacity or ability possessed by a person for the performance of a job "have been trained into an acquaintance with the business to be done and into expertness in the mode of performing it". (see Webster's Twentieth Century Unabridged Dictionary, 1937, p.1351). The Board rejects the first meaning and accepts the second or third meaning which, while not absolutely similar, have a considerable affinity; and the application of either one will suffice for the disposition of the matters before the Board . . ." Many collective agreements require that an applicant have "necessary skills, abilities and qualifications" to be successful - 10 - in a job competition. The non-inclusion of "skills and abilities" in the clause under consideration must have some significance. The qualifications set out in this particular job posting are as follows: "Progressive experience in a maintenance environment; mechanical aptitude with a technical school background and/or appropriate technical courses; ability to use a variety of hand and power tools applied to a variety of building maintenance facilities and equipment; ability to interpret mechanical drawingsand schematics; literacy; ability to perform physical requirements of position." We note that these "qualifications" appear to encompass abilities and aptitudes as well as educational qualifications and experience. When considering a person's fitness for a job it is difficult to distinguish between qualifications and abilities. There seems to be an inherent overlap, as the job posting illustrates. This is also apparent in the definitions cited above in the Atlantic and Pacific and Northern Pigment cases. The only case that seeks to distinguish qualifications from abilities is the Gabriel of Canada case, where qualifications are seen as objective standards and abilities as subjective qualities. We feel that in interpreting article 21.5(a) we must attempt to make just such a distinction. The necessary qualifications, as distinguished from abilities, for this job extrapolated from the job posting are: 1. Progressive experience in a maintenance environment. 2.Technical school background and/or appropriate technical courses. 3.Literacy. 4.Physical fitness. We assume that "ability to use a variety of hand and power tools" would flow directly from "progressive experience in a maintenance environment". We further assume that "ability to interpret mechanical drawings and schematics" would flow from "appropriate technical courses" or "progressive experience". In the sense that abilities generally arise out of education and/or experience they qualify a person to perform a job. But if a person has the relevant education and experience, his ability to perform certain aspects of a job does not mean he is not qualified for the job. New skills should be easy to learn if one has the appropriate background. When Mr. Sheppard and Mr. Edmunds reviewed the application forms and resumes submitted in response to the job - 12 - posting, they determined that all applicants qualified for interviews: that is, that all applicants appeared to meet the minimum qualifications for the job. Having made that preliminary determination, they might have saved themselves a lot of time and trouble by further exploring Mr. Raffaele's qualifications through review of performance appraisals, speaking to his supervisor, talking to Mr. Raffaele, and perhaps even watching him work. If they determined that Mr. Raffaele has the qualifications for the job, the search could end. Article 21.5(a) does not require a competition, nor is a competition necessarily advisable. It obscures the fact that the most senior person is entitled to the job if qualified to perform the work. In result, Ms. Humpfreys did the right thing in pressing the maintenance supervisors to reconsider Mr. Raffaele in a singular light from an overall perspective. Management, when making a promotion decision under this clause, bears the onus of showing that the most senior applicant is not qualified before proceeding to offer the job to a junior applicant. Although there were many flaws in the procedure followed here, we think the right result was arrived at in the end, and that the re-consideration of Mr. Raffaele's qualifications was not only necessary, but fruitful and proper. - 13 - According, the grievance is dismissed. DATED at Toronto, this 20th day of June, 1990. A. BARRETT, Vice-Chairperson I. THOMSON, Member CLLL A. MERRITT, Member