HomeMy WebLinkAbout2019-0175.Hamada.20-12-29 Decision
Crown Employees Grievance Settlement
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Commission de
règlement des griefs
des employés de la
Couronne
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GSB# 2019-0175; 2019-0176
UNION# 2018-0229-0034; 2018-0229-0035
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Hamada) Union
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The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE David R. Williamson Arbitrator
FOR THE UNION Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Felix Lau
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING July 16, October 30, and November 10,
2020
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Decision
[1] By way of two grievances dated December 11, 2018, and December 17, 2018, Ms.
Rosalinda Hamada grieves the outcome of the competition for the position of Senior Food
Services Officer (Cook 3 classification) at the Ontario Correctional Institute in Brampton,
which had been posted August 17, 2018. She contends that the competition was flawed
and incomplete with a process that was not properly weighted, competently assessed, or
performance-oriented based on proven competencies. Ms. Hamada seeks to be placed
into this position and be made whole or, in the alternative, that the competition be re-run.
The successful candidate, Ms. Kristina Searle, was provided notice of this hearing by
counsel for the Employer but did not attend at any day of the hearing.
[2] The Senior Food Services Officer (Cook 3) position was described in the job
posting as one in which the successful candidate would bring their knowledge and skills
in food preparation and safety to co-ordinate and supervise large volume food preparation
and delivery, and in particular to:
• Oversee the production, delivery and service of meals and restricted diets,
and ensure food preparation meets proper storage, assembly and portion
control standards.
• Provide direction, orientation and supervision to cooks and offender
helpers.
• Ensure the safety and security of work area, equipment and staff, and
prepare occurrence and accident/injury reports.
• Oversee and maintain sanitary conditions, and ensure cleanliness and
hygiene standards are met.
• Maintain a daily inventory of food supplies, pre-determine menus, and
make changes to menus if required.
• Order and purchase supplies and equipment.
• Assist in the overall food services operation.
[3] The job posting set out the qualifications for the Cook 3 position as:
Mandatory
• You have a valid Cook’s Certificate and/or you have equivalent knowledge
and experience to be eligible to write the certificate examination.
• You have valid First Aid and Heart Saver certificates.
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Technical Knowledge and Skills
• You have sound knowledge of and skills in large volume cooking and
baking principles, standard cooking, food preparation and food storage
procedures and methods, portion control standards, the proper use of
kitchen equipment and tools, and food safety practices.
• You can provide supervision, instruction and direction to cooks and
offender helpers.
Communication, Interpersonal and Computer Skills
• You can communicate effectively with staff, offender helpers and service
providers
• You have good writing skills to prepare various reports
• You can input, track and record data using a computer.
Legislative Knowledge
• You can interpret and apply relevant legislation such as the Occupational
Health and Safety Act and the Workplace Hazardous Materials Information
System to ensure compliance with food preparation and storage,
sanitation, food safety, and the proper use of kitchen equipment.
Analytical and Problem Solving Skills
• You can coordinate food preparation and services in a large volume kitchen
• You can identify and assess workplace hazards, equipment malfunction
and food services issues.
[4] The staffing arrangements in the kitchen at the Ontario Correctional Institute (OCI),
a medium security correctional facility housing approximately 220 male offenders, are for
there to be two Cook 3 employees who work a twelve hour shift and report to the Kitchen
Supervisor. During weekdays the Kitchen Supervisor is in charge from 6 a.m. to 2 p.m.
and then a Cook 3 takes over the supervision duties from 2 p.m. to 6 p.m. A Cook 3 is
also in charge on the weekends for a twelve hour shift each day. The two Cook 3’s rotate
their shifts so that there is one Cook 3 on the premises during the periods when a Cook
3 is required. There are also several Cook 2’s and offender helpers working in the kitchen
that are supervised and instructed by the Cook 3 working at the time.
[5] The collective agreement provides for the filling of vacancies or new positions in
the following way:
Article 6 – Posting and Filling of Vacancies or New Positions
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6.3 In filling a vacancy, the Employer shall give primary attention to
qualifications and ability to perform the required duties. Where qualifications and
ability are relatively equal, seniority shall be the deciding factor.
6.9 Reference checks are not required on candidates who are not being
considered for a job offer.
[6] Ms. Hamada is employed as a Food Services Officer (Cook 2) and has worked
continuously for the Ministry since the year 2000. During this period of time she has
worked as a Cook 2 for eight of these years, and in a temporary capacity on two occasions
as a Cook 3 for five years, and on three occasions as an Acting Food Services Manager
for five years. Ms. Hamada testified that she came to be performing this work by way of
an invitation from a Director or Manager to fill a vacancy brought about because of a
promotion or an illness that required hospitalization. For example, most recently in March
2016 at OCI she was asked to work as a Cook 3 when Adam Douglas, a Cook 3, was
promoted as a result of a job competition in which Ms. Hamada also competed. Ms.
Hamada testified that she was told she had done well in that competition but did not grieve
the outcome as Mr. Douglas was a Cook 3 and had greater seniority. Following Mr.
Douglas’ promotion she said she was just asked to do the Cook 3 job and that she had
been doing that work up to the time of the instant competition in October 2018, a time
period of some two and a half years.
[7] In her testimony Ms. Hamada expressed her concern with the nature of the
competition for the Cook 3 position as it relied upon an interview with four questions, plus
answering a question in writing, and an assessment made of her oral skills. She said that
her ability to perform the required duties of the Cook 3 position as evidenced by her work
history without any complaints was not taken into account in the assessment process.
Ms. Hamada spoke also to her concern of being additionally disadvantaged by this
process as English is not her native language, having grown up in the Philippines. She
expressed her concerns about a language barrier in the interview process, namely around
the subtleties of expressing herself plus some comprehension issues at times, which
disadvantaged her as a result of the way the competition was run.
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[8] Mr. Jeff Dunning is the Maintenance Coordinator at the Ontario Correctional
Institute (OCI), and was one of the three members of the panel that interviewed
candidates in October 2018 who had applied for the posted Cook 3 position. He said he
was on the panel because the kitchen fell into the Services portfolio. The other two panel
members were Mr. Martin Wilson and Ms. Zahida Ramsaroop. Mr. Wilson, as the Deputy
Superintendent of Services had overall responsibility for the kitchen area and he served
as chair of the competition. Ms. Ramsaroop, said Mr. Dunning, used to supervise the
kitchen as the business administrator. Since the time this competition was run in October
2018, both Mr. Wilson and Ms. Ramsaroop have retired from employment with the Ontario
Public Service. Neither of them were called to give evidence.
[9] Mr. Dunning testified as to the running of the interview process. He said that of
those who had applied for the position, four were selected by recruitment services to
participate in the interview process with the panel. Ms. Kristina Searle, the successful
candidate, and Ms. Hamada were two of those four. In the oral interview process each
candidate was asked the same four questions and then scored separately by each panel
member immediately after the interview on the basis of the closeness and completeness
of their response as compared to the ideal response that had been provided to the
interviewers. A somewhat mechanical scoring system was used in marking how well a
candidate did on each question. For instance the score sheet may identify ten points to
look for in an ideal response, with each point carrying 2 marks. Each panelist then added
up the marks they had given to each candidate on each of the four questions. From these
marks an average mark was later calculated for each candidate on each question. It is
Mr. Dunning’s evidence that Ms. Searle provided more detailed and more organized
responses than did Ms. Hamada who gave shorter responses that sometimes did not
quite hit the point. Three of these four questions were each marked out of 20 and the
fourth was marked out of 10, for a maximum total of 70.
[10] The four questions asked were:
(1) Describe the correct procedure for dealing with leftovers in a food services
operation.
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(2) You have noticed that an employee has not been completing the assigned
work at the expected level/standard. Describe the steps you would take to
address this issue.
(3) While on duty, a worker has slipped and fell in the kitchen area, what steps
would you take to address this?
(4) Which Policy replaced the WDHPP in the Ontario Public Service and what is
its purpose?
What is Workplace harassment under the policy and give an example?
[11] As part of the interview process each of the four candidates were also evaluated
on their demonstrated oral skills in responding to the four questions asked in the interview.
These oral communication skills were marked out of 10. Ms. Searle scored 9 points from
the panel on her oral communication skills and Ms. Hamada scored 5. Candidates were
graded, said Mr. Dunning, on their understanding of the questions and their organization
and presentation of the answers. Specifically, he said, the panel members were looking
for clear, concise, and logical answers, with polite and appropriate use of language. He
noted that Ms. Searle was more prepared and her responses were more precise and
expansive than those of Ms. Hamada who gave shorter answers that were generally
insufficiently fulsome to match the ideal model answers. It is the evidence of Mr. Dunning
that he saw nothing during the interview to suggest Ms. Hamada did not understand a
question asked, and stated that in the interests of maintaining a ‘level playing field’ he did
not prompt Ms. Hamada or any other candidate to elaborate on an answer when only a
short response was given. Mr. Dunning testified that at the time of the interview he did
not know Ms. Hamada had worked as a Cook 3 or any particulars of her employment
history, aside from being aware she worked as a cook in the kitchen at OCI in that his
work crew addresses maintenance issues there.
[12] Following the oral part of the interview process was a written test consisting of one
question marked out of 20. The candidates’ answers to this question were assessed
solely by Mr. Wilson. The question asked was:
“You are the Cook 3 in charge of the kitchen for the next three days at OCI. At
1500 hours on a Friday of a long weekend, the steamers stopped working for
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unknown reasons. What are the issues or problems this could cause? List all the
steps you would take in this institution.”
[13] In answering this preceding question Ms. Searle was awarded 15 marks out of 20,
and Ms. Hamada 6 out of 20. A review of Ms. Hamada’s written answer shows she
addressed the question of what could have caused the steamers to have stopped working
rather than dealing with the problems and issues that could arise from the steamers not
working.
[14] On the interview portion of the competition Ms. Searle scored an average of 64
points out of 70 by the three panelists, namely 91.4%. Ms. Hamada scored an average
of 36 points out of 70 on the interview portion, namely 51.4%. Adding in the marks for
oral communication out of 10, and then the written test out of 20, Ms. Searle had a final
score of 88% while Ms. Hamada had a final score of 47%. Ms. Hamada has greater
seniority than Ms. Searle.
[15] Ms. Searle was declared to be the successful candidate and is the present
incumbent of one of the Cook 3 positions. At the time of the job competition for the Cook
3 position in October 2018, Ms. Searle was working in the kitchen at OCI as a Cook 2.
She had worked in this position for the previous six years after joining the Ministry in April
2012. Her resume shows that prior to this she had worked as a cook for eight years,
including restaurant work as a commis chef for two years, a line cook for three years, and
that she had received full training for the Cook 3 position. Her cover letter to her
application states, without elaboration or any specifics, that she has performed the duties
of a Cook 3 on an as needed basis.
[16] The Employer submits there is no reason to order either a rerun of the competition
or to award the position to Ms. Hamada, and argues that any deficiencies that may have
affected the way the competition was structured or run are so small as to not materially
affect the outcome of the process. In the view of the Employer there is no basis to support
any suggestion that Ms. Hamada was discriminated against in scoring her answers to the
questions posed in the oral interview process in which she finished 40% behind Ms.
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Searle. Nor it submits, do the results support any suggestion that Ms. Hamada was
discriminated against in the scoring of the oral expression and written parts of the
interview process, in that those parts led only to a 1% incremental change in the scoring
outcome; that is from 40% to 41% behind. The Employer argues that even if Ms. Hamada
is given every benefit of the doubt on the scoring and language issues the gap in the
scores is just too great to enable Ms. Hamada to attain relative equality and become the
successful candidate.
[17] It is the further submission of the Employer that the gap in the scores between Ms.
Searle and Ms. Hamada arising out of the competition is just too great to be made up to
the level of relative equality by considering Ms. Hamada’s work done as a Cook 3, and
any performance reports. The Employer asserts the onus is on the Union to show that
taking these other factors into account would have altered the outcome of the competition
and that it has not done so. The Employer notes the arbitral standard set out in Re
OPSEU (Naczynski) and Ministry of Economic Development and Trade, 2006,
(Abramsky) for either ordering a grievor into a position or for ordering a re-run. The
standard referenced is that for the Board to order the Grievor placed into the position, the
Union must prove on a balance of probabilities that the Grievor “would” demonstrate
relative equality if the proper selection procedure had been done. Also, for the Board to
order a re-run of the competition, the Union must establish on a balance of probabilities
that the flaws “could” have affected the outcome. If neither onus is met, then the
grievance is dismissed. The Employer asserts that in the instant case the Union has not
met its onus and accordingly urges that Ms. Hamada’s grievances be dismissed.
[18] In support of its position and submissions the Employer made reference to the
following arbitral authorities in addition to Re Naczynski, (supra): Re OPSEU (Jobson)
and Ministry of Transportation, 2011, Petryshen; Re OPSEU (Sequeira and Lueck) and
Ministry of Transportation & Communications, 1990, Gandz; Re OPSEU (Esposito) and
Ministry of Housing, 1995, Kaplan; and to Re OPSEU (D. Bent) and Ministry of
Transportation, 1989, Fisher.
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[19] The Union takes issue with the selection process consisting solely of oral and
written questions put to the candidates in an interview. It is the position of the Union that
in a job competition where there are internal candidates who have been with the Ministry
for several years performing similar work, that the selection of the successful candidate
should not be based exclusively on responses given to oral and written questions in an
interview. Indeed, submits the Union, when making an assessment of a job applicant’s
ability to perform the required duties it is of necessary importance to take into
consideration any similar work they have done, and how well they have performed it. In
the instant case, Ms. Hamada has spent several years discharging on a full-time basis,
without performance issues or discipline, the duties of the Cook 3 position and in working
as an Acting Food Services Manager. The Union argues that to have this demonstrated
ability to perform overlooked and not be taken into account in the job competition is
fundamentally unjust and undermines the relative equality clause in Art. 6.3 of the
collective agreement. With Ms. Hamada having greater seniority than Ms. Searle, the
Union seeks that the position of Cook 3 be awarded to Ms. Hamada or, in the alternative,
that the job competition be rerun.
[20] In support of its position and submissions the Union made reference to the
following arbitral authorities: Re OPSEU (Brimicombe) and Ministry of Labour, 2010,
Dissanayake; Re Greater Niagara General Hospital and Ontario Nurses’ Association,
1997, Devlin; and to Re Hamilton Health Sciences and Ontario Nurses’ Association,
2007, J. Johnston.
[21] Art. 6.3 of the collective agreement requires the Employer in filling a vacancy to
give primary consideration to qualifications and ability to perform the required duties. It
is quite clear from the evidence adduced that the Employer’s assessment of the relative
qualifications and ability of the candidates in this job competition for the Cook 3 position
was based solely on the interview scores and nothing else. In making their decision as
to the successful candidate the members of the selection panel for the competition made
no attempt to examine the nature of the past work duties performed by the candidates or
how well they had done them.
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[22] The foregoing situation is not unique, as a review of job selection decisions made
by the Board over many years discloses. The Board in Re Liblik/Scipnek, 2525/91,
(Dissanayake) at pp. 19-20 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 may 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.
(emphasis added)
[23] The Re Brimicombe et al decision, (supra), contains a comprehensive review of
Board decisions pertaining to the assessment of candidates for posted positions, and
notes at p.8 that:
The Board has consistently disapproved the practice of undue reliance on
interview scores. Thus in Re Esposito, 2168/92 (Kaplan) it stated at p. 26, “As the
Board has noted in a legion of cases, where a selection panel relies inordinately
on interviews it does so at its peril”. In the present case, the employer relied on
interview scores, not inordinately, but exclusively. I cannot help but repeat the
following observation by the Board in Re Bent, 1733/86 (Fisher) that “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 ….” It is simply mind-boggling that the selection panel in this
case received specific advice to adopt the very process that had been repeatedly
disapproved in a long line of Board decisions.
[24] As already noted, Ms. Searle was selected as the successful applicant in the job
competition for the posted Cook 3 position solely on the basis of the interview scores and
nothing else. The Board decision in Re Brimicombe, (supra) notes that in Re Esmail,
1186/87, (Dissanayake) there was a similar situation of the panel relying solely on the
interview results. In that decision the Board concluded at pp. 19-20:
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
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interview under article 4.3 must not be approached as a means of judging
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.
[25] In the instant matter before the Board it must be concluded that the panel’s sole
reliance on interview scores and failure to consider any actual demonstrated ability in the
posted job position has resulted in a flawed competition that is not in compliance with Art.
6.3 of the collective agreement.
[26] We turn to the matter of Remedy, and in particular the issue of whether the Board
places Ms. Hamada into the position of Cook 3 or orders the competition to be re-run.
After reviewing a number of Board decisions involving similar issues the Board in Re
Naczynski, (supra), (Abramsky), summarized the standards to be applied in determining
remedy in the following way:
Considering all of these cases, and the other cases cited to me, it seems that there
are two standards – one for ordering the grievor into the position and one for
ordering a re-run. If the board is to order the grievor into the position, the Union
must prove, on the balance of probabilities, that the flaws would have affected the
outcome. In other words the grievor must show, on the balance of probabilities,
that he or she would demonstrate relative equality if a proper selection procedure
had been done. In a re-run situation, the Union must establish, on the balance of
probabilities, that the flaws could have affected the outcome. If neither onus is
met, the grievance must be dismissed.
[27] The competition was flawed and not in compliance with Art. 6.3 of the collective
agreement. The appointment of Ms. Searle to the position of Cook 3 cannot be allowed
to stand. As to remedy, having considered the evidence I find myself of the view that the
competition between Ms. Hamada and Ms. Searle must be re-run.
[28] I am satisfied that the Union has demonstrated that the competition was flawed by
excluding from consideration the actual experience of Ms. Hamada working on two
occasions as a Cook 3 for a total of five years and her work as a Food Services Manager
in the Ministry for five years when making an assessment of the candidates’ qualifications
and ability to perform the duties of a Cook 3. It was suggested by the Union that work
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performance evaluations may not have been done or available. Should that be so, that
ought not to work to the detriment of Ms. Hamada. That she did the work of these
positions for multiple years without any discipline on her record or negative connotations
in her file must be seen to speak for itself.
[29] While the panel’s exclusion from consideration of work performed at the Cook 3
level and above is sufficient to flaw the competition and bring about a re-run, the format
of the competition can also be seen to have worked against a non-native English speaker
such as Ms. Hamada. Her answer to the written question illuminates a language
comprehension issue without her apparently having the opportunity to clarify the question.
It must be seen that the real purpose of the question posed was to assess the knowledge
of the candidates in how to deal with the problem posed and not their understanding of
the question. A review of the answer provided by Ms. Hamada discloses that she
addressed the possible cause of the steamers breaking down and what she would do
about it, rather than focusing on what problems the breakdown would cause and have to
be dealt with. Ms. Hamada scored poorly in her answer to this question. It would appear
that her answer reflects in part an English language comprehension issue to a question
that could perhaps have been more clearly stated to a non-native English speaking
person, and in part to Ms. Hamada’s work experience with steamers, as in her testimony
she spoke to the frequency of the steamers breaking down and her having to deal with
the possible causes of this many times. The mark of 5 out of 20 given to Ms. Hamada
cannot be seen to be an accurate reflection of her knowledge and problem solving skills
in this area given she had performed the duties of the Cook 3 in that location for the
preceding two and a half years. It is more likely that what was measured here were her
English language skills.
[30] The job competition for the Cook 3 position is accordingly ordered to be re-run
between Ms. Searle and Ms. Hamada. In doing so the selection panel is to take note of
Art. 6.3 of the collective agreement to “give primary consideration to qualifications
and ability to perform the required duties”. As noted in Re Brimicombe, (supra), the
standards expected of the Employer in conducting a job competition are those set out in
the Board’s frequently noted 1982 decision in Re OPSEU (MacLellan and DeGrandis)
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and Ministry of Government Services, GSB No. 506/81 et al (Samuels). As such, this
consideration is to include a candidate’s demonstrated ability to perform the work duties
at the Cook 3 level and above, the job performance reviews, and a review of personnel
files. The evaluation of the candidates is to be based on the qualifications and ability they
had as of the date of the original competition, namely October 17, 2018. Not to be taken
into account is knowledge, experience, or demonstrated ability obtained since October
17, 2018.
[31] The competition is to take place no later than 30 calendar days from the date of
issuance of this decision, with any extension of this date subject only to the mutual
agreement of the parties. Should Ms. Hamada be the successful candidate in this re-run
of the job competition, or should Ms. Searle not wish to participate in this re-run, then Ms.
Hamada is to be placed into this Cook 3 position with Ms. Searle returned to her previous
position as a Cook 2.
[32] I remain seized of jurisdiction in the event there are any implementation issues that
arise.
Dated at Toronto, Ontario this 29th day of December, 2020.
“David R. Williamson”
________________________
David R. Williamson, Arbitrator