HomeMy WebLinkAboutWalker et al 08-07-02
JUL 0 7 2008
IN THE MATTER OF AN ARBITRATION
BETWEEN:
HARCINCORPORATED
(HANOVER AND NEUSTADT)
(The "Employer")
AND
O.P.S.E.U., LOCAL 235
(The "Union")
AND in the matter of five individual grievances
ARBITRATOR:
William A. Marcotte
APPEARANCES:
FOR THE EMPLOYER:
P. A. Young, counsel
S. Osborne, residential mgr.
K. Ackerman, mgr.
T. Artuso, mgr.
and others
FOR THE UNION:
M. Bevan, O.P.S.E.D. rep.
J. Schwartz, steward
1. Chappelle, unit steward
B. Symonds, grievor
K. Webber, grievor
C. Verstratten, grievor
S. Lester, grievor
M. Walker, grievor
and others
INCUMBENT:
P. Stachelscheid
Hearings held in Guelph on February 4, April 14 and June 3, 2008.
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AWARD
In their grievances, Ms. Michelle Walker (May 6, 2007), Ms. Katherine Webber (May 3, 2007), Ms.
Cindy Verstratten (May 4,2007), Ms. Beverley Symonds (May 4,2007) and Mr. Shawn Lester (May
6,2007) (i.e., the "grievors") claim they were improperly denied the March 28,2007 job posting for
the position of "Full Time Permanent Position - Counsellor I". The job posting contains the
following:
Position Summary: Support clients to live as independently as possible in a community
setting by ensuring physical, social and emotional needs are met. Supports and encourages
personal growth through caring interpersonal relationships. Participates as an active positive
team player. Completes necessary administrative tasks. Promotes Harc and its programs.
The Employer contends that the position was properly awarded to the incumbent, Ms. Patricia
Stachelscheid, who attended as an observer at the hearing of the grievances.
The job description for a Counsellor I contains the following:
POSITION SUMMARY:
Under the supervision of the Community/Residential Supervisor/Manager, the Support
Worker will support people who have an intellectual disability to live as valued contributing
citizens of their community by assisting in developing and achieving their goals and chosen
lifestyle, in an environment of accountability, rights and respect.
PRINCIPLE RESPONSIBILITIES AND DUTIES [major headings only]
1. Support people as valued and contributing members of society
2. Facilitate the development and co-ordination of supports
3. Support health and safety of people who receive support
4. Promote and actively maintain a working environment which is health and safe for all
employees
5. Maintain financial records of supported persons' finances
6. Maintain accurate and complete documentation in a timely and current fashion
There is no difference between the job description for a non-permanent and a full-time permanent
Counsellor I in the Residential Program. The grievors are all non-permanent Counsellors 1.
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The relevant provisions ofthe collective agreement under which the grievances arise are as follows:
6.05 Employee/Employer Relations Committee: The parties agree to establish an
Employee/Employer Relations Committee consisting of equal representation of at
least two (2) bargaining unit representatives and two (2) management representatives.
Either party may bring in an additional resource person.
The committee shall keep minutes of its meetings. A copy of the minutes shall be
posted on the union bulletin board and a copy shall be sent to the union stewards and
to Management within ten (10) days ofthe meeting.
14.01 The Employer agrees to post all permanent vacancies for a period offoUlieen (14)
consecutive days . . . .
14.04 Transfer and promotion shall be based on the skill, ability, education, seniority and
qualifications of the employee(s) responding to the job posting.
Relevant to the provisions of art. 14.04, the minutes ofthe December 15, 2003 Employee/Employer
Relations Committee contain the following:
Standardized Hiring: Interview Benchmarks have been developed. See attached sheet.
Harc training will be added to Bench marks under education. Need to look at process of how
we share information that we gain at training seminars. Management will consider people
having the opportunity to view some of the questions before the interview. Job descriptions
to be attached to the job posting when possible.
The attached "Interview Benchmarks" are as follows:
INTERVIEW BENCH MARKS
*4 QUESTIONS X 5 POINTS
20
*SENIORITY X 5 POINTS
* 1/2 point for each year of service
5
*EDUCATION 0 TO 5 POINTS
*High school-2 points
*2 year post secondary-3 points
*D.S.W. -5 points
*everything else falls somewhere in between
(ie) B.A. Degree 3-5 points
5
4
*QUALIFICATIONS 5
*This section deals with a person's character
traits, their attitude and the way the person
presents themselves, is it felt that they are the
appropriate person for the job? (ie) would they
fit into the team, would they be seen as a productive
member of the team, are they eager to be part of the
unit? Is it felt that they are the appropriate person to
deal with the clients in the area they are applying to
work in, if the job warrants it can they work
independently etc..
*TOT AL POINTS 35
In a meeting of that Committee on October 10,2006, the minutes indicate as follows:
6. Interview Bench Marks
· Qualifications section is now worth 20 points effective today
· All words remain the exact same, separated into 4 different categories
with 5 points each
Accordingly the revised "Interview Bench Marks" contains as follows:
Qualifications
This section deals with this person's character traits, their 5
attitude and the way the person presents themselves, it is
[sic] felt that they are the appropriate person for the job?
Would they fit into the team, are they eager to be part 5
of the unit?
It is [sic] felt that they are the appropriate person to deal with 5
the clients in the area they are applying to work in, if the
job warrants it can they work independently etc.
Have they talcen the initiative to update their knowledge - 5
participate in seminars, workshops offered through HARC?
As a result of the October 10, 2006 above changes, the Bench Marks total points increased to 50
from 35.
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In regard to the March 28, 2007 posting in issue, the Employer developed the following four
Questions, i.e., the first element of the Bench Marks. While the Questions were given to the
applicants 10 to 15 minutes before their interview, the accompanying score scheme was not:
1. Describe a situation when you assisted an individual recognize [ sic] that he or she had
several choices in how to handle a difficult problem. What was the situation, what did
you do, and what was the final outcome?
1 point - Situation is fully described
2 points - What you did? - needs to show several choices were given
1 point - What was final outcome
1 point - If you list anything you would have done differently.
2. Describe a situation in which your attempts to communicate with someone were
ineffective. What was the situation, what did you do and what happened as a result?
Give an example of a situation with a person we support as well as an example with a co-
worker.
1 point - Situation that deals with communication issues.
2 points - What you did and what happened
1 point - Solid example of person supported
1 point - Solid example of co-worker
3. Describe the last time you became involved in a conflict or crisis situation at work. What
was the situation? What did you do? How well did it work? What would have done to
prevent the situation from occurring?
1 point - Explains crisis/conflict situation
1 point - Explain what you did
1 point - Insight into how well it worked
2 points - What you could have done differently
4. What behaviours do you think are the most important/most valued by team members or
co-workers in the workplace? Of the behaviours you just listed, please do a self-
evaluation and tell me which is your strongest most positive co-worker behaviour?
Which might be a possible improvement area for you?
1 point - behaviours most valued - list at least 5
2 points - strongest most positive co-worker behaviour with example
2 points - possible improvement with example
As concerns the fourth element of the Bench Marks, "Qualifications", the Employer assigned the
following scoring scheme to the four paragraphs, referred to as "Sections":
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Section 1
5 - positive upbeat attitude
3 - good attitude, but room for growth
1 - negative attitude
Section 2
5 - always a team player
3 - sometime [ sic] a team player
1 - works against the team
Section 3
5 - person centred, works independently
3 - will rely on others; limited client choice
1 - needs lost of direction
Section 4
5 - participates in lots of seminars (more than 5), attends all staff meetings.
3 - participates in 4 or 5 seminars, attends a few staff meetings
1 - has not attended seminars, does not attend staff meetings
Ms. Beverley Symonds has worked as a non-permanent or "contract" Counsellor I in the Residential
Program for some 6 years. She agreed that the job description for Counsellor I is an accurate
portrayal of her duties and responsibilities. The role of a Counsellor I does not change from one
client residence to the next.
Following her application for the position in issue, Ms. Symonds was scheduled for an interview and
was given a copy of the four Interview Questions some fifteen minutes beforehand. On those sheets,
she wrote answers to each one ofthem prior to the interview. In the interview, conducted by Ms.
Shelley Osborne, a Residential Program manager, and Ms. Kathy Ackerman, a Community Programs
manager, she was asked the four Questions and gave the replies she had written, "but went into more
depth because I didn't have the time" beforehand. She estimated her interview lasted "probably a-
half hour" and could recall no other questions in addition to the four. Ms. Osborne gave Ms.
Symonds a score of 11.5 out of20 and Ms. Ackelman scored 12 of20, for an average of 11.75 on
the 4 Interview Questions.
In regard to the "Qualifications" Bench Mark, Ms. Osborne and Ms. Tina Artuso, a Residential
Program manager, scored the candidates. An average score was derived for each Section. As
concerns Section 1 ("attitude"), Ms. Symonds said she does not have a negative attitude; "I feel I
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should get five points. I have a positive attitude, I'm upbeat, I advocate for all the clients. I get
along with all staff. I've never been reprimanded. I feel I have a great working relationship with
everybody on staff." She has never been told she has a negative attitude and has not been disciplined
for that reason; "Never. I've been told I have a positive attitude." Ms. Osborne scored Ms. Symonds
3 out of 5 and, Ms. Artuso scored Ms. Symonds 1 out of 5. As to Section 2 ("team player"), Ms.
Symonds said, "I've always been a team player. If! have issues I take them to the team and don't
go over their heads. I feel everyone on the team is comfortable with coming to me if they have
problems." Ms. Osborne scored her 3 out of 5 and Ms. Artuso scored her 3 out of 5. Concerning
Section 3, ("work independently"), Ms. Symonds said that she should get 4 out of 5: "I do ask others
for help. I can handle the workload." Ms. Osborne scored her 3 out of 5 and Ms. Artuso gave her
a score of 3 out of 5. Ms. Symonds was not asked about her averaged score of 2.5 out of 5 for
Section 4, ("participates in lots of seminars").
Ms. Symonds said it was during her de-briefing, after being informed she did not get the position,
that "I was told I could have called in after my interview if! had more input on the [four] Questions.
I didn't realize I could, I just assumed the iilterview was over when I left."
In cross-examination, Ms. Symonds said she had submitted her resume previously when applying
for other job po stings with the Employer. Ms. Osborne was listed as one of her references. She
agreed she trusted Ms. Osborne to provide a fair assessment of her work as a Counsellor 1. She
agreed that Ms. Osborne and Ms. Artuso, the managers she reported to, would have the most
knowledge of her work performance. Ms. Symonds said Ms. Ackennan would "know me just as
well" because Ms. Symonds had worked in the Community Programs at some time, or times, in
addition to her usual duties in the Residential Program. She agreed it "made sense" for Ms. Artuso
to be involved in rating her Bench Mark Qualifications for the position and had no problem with her
input. She agreed that for one residential house, knowledge of autism is relevant, and "We have
courses we can take" on that condition. She agreed she may have over-generalized when she
indicated there was no difference among the residential homes for clients.
Ms. Symonds agreed, "Yes, it can be", that Interview Question 1 was related to the Counsellor I job,
particularly in regard to the job description duties under the heading "Support people as valued and
contributing members of society" but added, "It is and it isn't, [Question 1] is not asking directly if
it's our job or relating to our life." She did answer the Question with a job-related situation. She
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agreed Question 2 asked for a work-related situation. Many of the clients she deals it have
communications difficulties in day-to-day situations, but she said the question "is very broad". Ms.
Symonds agreed that Question 3 is relevant to the Counsellor I job in regard to the job description
heading, "Support health and safety of people who receive support." She agreed Question 4 is job
related concerning Counsellor I duties under the job description heading, "Facilitate the development
and co-ordination of supports." She said that all four Questions are relevant, "to a point", to the
posted job.
As to her de-briefing, Ms. Symonds agreed that Ms. Osborne went through what she thought were
Ms. Symonds' shortcomings in her responses to the four Questions. As concerns her Qualifications
mark of lout of 5 for Section 1 ("attitude"), which mark indicates "negative attitude", she said
"nothing negative" had been mentioned by Ms. Osborne in her discussions in the workplace with
Ms. Osborne and Ms. Artuso about her attitude towards clients in the residences. Ms. Symonds is
"not aware of' a lack of flexibility on her pmi in dealing Witll clients, or, that she has "power
struggles" with them. As concerns her interaction with one client in particulm", Ms. Symonds could
not recall "being called into the office", and could recall no such type of conversation with her
managers "in the last couple of years." Had she been told ofthe opportunity to call the interviewers
after the interview, she would have done so. In re-examination, Ms. Symonds said there has "never"
been anything in writing about her attitude. She is not restricted from working in any of the client
residences.
Ms. Shelley Osborne has been a Residential Program manager with the Employer for 17 years. Ms.
Osborne has dealt with some 20 or 25 job postings in her tenure, approximately half of those for
Counsellor I positions. She prepared the job posting in issue. She did not ask applicants to submit
resumes, "because I was familiar with the people who had applied and we're doing job postings all
the time." There were12 applicants in the instant case and they were interviewed over 3 days. She
and Ms. Ackerman prepared the four Questions; "We looked over old questions an did a variation
on ones we'd asked before." She said all four Questions were relevant and related to the duties and
responsibilities of a Counsellor I, as contained in the job description. Ms. Osborne said that none
of the interviewed candidates questioned the relevancy or appropriateness of the Questions asked
of them. She and Ms. Ackerman jointly developed the marking scheme for each of the four
Questions. Each of them asked the same two of four Questions of each candidate. Both she and
Ms. Ackerman made extensive notes of each candidate's responses to the question and kept the
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responses each candidate had written prior to the interview. At best she could recall, "We told a
number of people, but may not have told everybody" that they could call in after the interview to
augment their answers. She said one person, not the incumbent, did call in but it had no impact on
that individual's score. In cross-examination, she agreed a candidate score could change as a result
of a follow-up telephone call.
Ms. Osborne said that for Question 1, "We were looking for the applicant to describe a situation
where a resident had several choices, we wanted to see several choices . . . . It relates to supporting
self-advocacy, promoting choice and individual rights. . . . We were looking for an applicant's
experiences, a positive approach, a positive outcome." For Question 2, they were looking for "the
applicant's experience in dealing with a communications issue with both a resident and a co-
worker." She said these sorts of issues arise "every day". As for Question 3, "Again, looking at the
applicant's experience in a conflict, crisis situation - what they did.. what they learned, what they
could do differently." She said these sorts of situations arise "a couple oftimes a week . . . conflict
between staff; people not home at the time they should be; people showing aggression, somebody
not taking their pills," In Question 4, the interviewers were looking for "Applicants' experiences,
what behaviours they valued most from team members and what insight for themselves; how well
they knew themselves."
Ms. Osborne said the choice was made to ask applicants about situations they were involved in rather
than providing a scenario to be responded to, "because we wanted to know a situation from their own
experience. Also, if we gave a [scenario] to everybody, because the interviews were over a few days,
those may have been passed on."
In regard to scoring the candidates' Interview Questions' answers, Ms. Osborne's evidence is that
after all twelve interviews had been completed, she and Ms. Ackerman independently scored each
candidate's answer then "got back together and averaged them out." They scored the "Education"
Benchmark together.
Ms. Osborne and Ms. AIiuso scored the "Qualifications" Bench Mark. Ms, Artuso was chosen to
do so "because we felt Ms. Ackerman didn't know all the applicants as well as Ms. Artuso. Some,
Ms. Ackennan had not supervised", while Ms. Artuso had supervised all 12 applicants. The
successful applicant would repOli to Ms. Artuso, who was on maternity leave at the time of the
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interviews, apparently from January to September, 2007. All final scores for the "Questions" and
"Qualifications" Bench Marks are the average of Ms. Osborne and Ms. Ackerman for the former,
and of Ms. Osborne and Ms. Artuso for the latter. Ms. Osborne said the decision as to the successful
candidate was based on the fact she had the highest score.
In cross-examination, Ms. Osborne's evidence is that her usual practice is to ask job-posting
applicants to submit resumes. She did not on this occasion and did not look at those on file because
she knew the 12 applicants "well enough". When asked if she knew all 44 staff members well
enough not to review their resumes, she said, "I can't say that, but if! need to clarify, I would have
gone to that person for clarification." She agreed Ms. Ackerman had not worked with all the
applicants, yet did not feel Ms. Ackerman should have reviewed their resumes. Nor did Ms. Osborne
access the applicants' personnel files. Applicants were provided with the questions prior to their
interview but the decision to limit their time to 15 minutes or so was Ms. Osborne's decision. She
could think of no reason why the applicants were not shown the scoring scheme for each Question.
In regard to Question 1, Ms. Osborne agreed they wanted actual anecdotes from the applicants. She
agreed the scoring scheme did not require them to ask the applicant, "Is there anything you'd have
done differently?", and said, "I guess we were looldng for the final outcome mid anything they would
have done differently from that." She agreed if an applicant did not address that issue, he or she lost
1 point, and would have done so even where their choice was seen as a proper outcome, i.e., not
requiring anything different. As to Question 2, she agreed an applicant would lose 5 points ifhe or
she could not describe that situation, "but everyone had an example." If an applicant did not want
to identify a co-worker, he or she would lose a point, "Yes, but they did not have to use names." The
applicants were not told they did not have to use names.
Concerning Question 3, Ms. Osborne indicated that each staff member "could" experience a crisis
or conflict situation a couple oftimes a week and if an applicant could not think of one, they would
get zero points. If an applicant said he or she believed they handled it properly and nothing could
have been done differently, she or he would lose 2 points. She agreed that with Question 4, they
expected an applicant to indicate what his or her co-workers thinlc are important behaviours. She
could not recall telling applicants to list 5 behaviours, as required in the scoring scheme. She agreed
there is no wrong answer to the first sentence, i.e., "What behaviours do you think are most
important/valued by team members or co-workers in the workplace?" As to 2 points for "strongest
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most positive co-worker behaviour with example", she agreed there is no wrong answer, nor Ii
wrong answer to, "Which might be a possible improvement for you?" When it was pointed out that
Ms. Symonds had listed 5 behaviours and answered the other parts but did not get 5 points, Ms.
Osborne said, "I guess we looked at the examples given", that "We were looking for more", even
though it was Ms. Symonds' self-evaluation. She agreed that the question did not ask for examples.
In regard to the "Qualifications" Bench Mm'k, Ms. Osborne said that, notwithstanding the 5, 3, 1
scoring scheme, it was possible to score a 2 or 4, "If we felt you were in between. . . what we were
thinking is if you're almost there, but not quite." As to a score of 5 on Section 1, meaning there is
no room for growth she said, "There's always room for growth, but a [5] would be all the time." She
agreed her marks for all applicants' Qualifications were all based on her memory.
In re-examination, Ms. Osborne said that the "Interview Bench Marks" are posted in the residences.
All 12 applicants had previously submitted their resumes. She said nothing in them would have
informed the four Bench Mark "Questions". There was no discipline on file for any applicant.
Incident reports concerning clients and/or staff are kept in a file in each residence and are not placed
in personnel files.
Ms. Kathy Ackerman has been a Community Programs manager for some 3 years and has worked
for the Employer for 18 years. She and the other two manager, Ms. Osborne and Ms. Artuso, work
"always as a team, we're in touch everyday about what's going on in our programs, problem solve
together. . . and replace each other so you have to be aware of what's going on in each other's
teams." All the applicants who were interviewed are in the Residential Program, not the Community
Programs. Ms. Ackerman has, "frequently", been involved in job posting selection processes.
In regard to the job posting in issue, Ms. Ackerman did not review the applicants' resumes, "because
it hadn't been that long since we'd done interviews and it's basically the same people who apply for
any opening." Resumes had been submitted in the past and she had reviewed them on those
occasions. Because personnel files do not have "really anything to review" in them, she did not refer
to them. She is not aware of any discipline on file for any applicant. While a "few" performance
appraisals had been conducted, there was not one for every applicant because a performance
appraisal system had only been recently introduced at the time ofthe Counsellor I job posting. She
did not review the appraisals that had been completed because, "We didn't have one for everyone
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and Ms. Osborne and Ms. Artuso have enough worldng knowledge of everyone to judge
qualifications. "
Concerning the Interview Questions, Ms. Ackerman said that all the applicants "failed" to answer
the last part of Question 1 and none received the 1 point for it. Everyone did give an example
regarding Question 2, including involving a co-worker, and no applicant questioned the effectiveness
of the question. Similarly, she said no one failed to answer Question 3, "I think everyone dealt with
the situation properly and got marks." As to Question 4, if an applicant did not mention at least 5
behaviours, she or Ms. Osborne would say, "Please give me more". Ms. Ackerman had received
training in how to conduct a job posting interview a "few months" prior to the job posting in the
instant case. She does not know if any incident reports were in the incumbent's file.
In cross-examination, Ms. Acke1man said that had there been "a huge issue" involving an applicant,
Ms. Osborne or Ms. Artuso would have infonned her of it and added, "I may not know but I'd know
anything that went into the personnel files". She relies solely on her memory in regard to any
incident that was "important enough to come up". She then said, "But no one had one on file. If
someone had, we'd double check [because] Ms. Osborne would have told me." She agreed, "It's
quite possible", that the incumbent could have had twenty incident reports in her personnel file but
she, Ms. Ackerman, would not know about them. She did not supervise any of the applicants on a
regular basis, "but they may have worked in my Programs on a relief basis." Ms. Ackerman could
not recall the last time she had reviewed the applicants' resumes and did not lmow if there was one
for all 12 applicants. She agreed that her involvement in the selection process was limited to only
scoring the applicants' responses to the four Interview Questions, which limited involvement was
decided upon when the job posting was made. It was also agreed at that time that Ms. Artuso would
score the applicants' "Qualifications" Bench Marks. She did not agree she had no knowledge of the
applicants' work performance; "I never directly supervise [in the Residential Program], but I'd have
some knowledge through management team [discussions and meetings]." Her knowledge would be
acquired from Ms. Osborne and Ms. Artuso, and, also, "I do residential intervention training, so I'd
get to know the staff, and, through their working [on a relief basis ] in my Programs." She conducts
intervention training once-a- year, She agreed they do not talk about all 44 bargaining unit employees
in their meetings. She said, "It's possible" that not every employee is discussed; "I may not hear a
particular thing about a particular person."
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In regard to Interview Question 1, she agreed that the scoring breakdown had not been mentioned
to the applicants, and "guessed" they would not have lmown to mention about handling the situation
differently. She believed all 12 applicants provided an example of communication difficulties with
a co-worker. When asked if, for Question 3, an applicant described a situation when it worked out
well he or she lost 2 points for not mentioning doing things differently, Ms.Ackennan said, "It could
have worked well, but when you look back at things, there is always something that could have been
done differently". She "supposed" 2 points were lost for not addressing that matter. She agreed
applicants were not told to provide 5 behaviours in regard to Question 4 and if they did not mention
5, they "lost part of a point, I guess." She did not check with applicants' co-workers to fmd out
which behaviours they most valued. She agreed the Question asks for applicants' personal feelings.
As to why not all applicants received 5 points, "They didn't explain themselves well with an
example." She agreed the Question does not ask for examples. She could not recall if any applicant
was prompted to give 5 behaviours. She agreed Question 4 could have been clearer.
In re-examination, Ms. Ackerman said that, as best she could recall, all 12 applicants had applied
for previous job postings in the six months prior to the one in issue. She believed every applicant
had mentioned doing things differently in regard to Question 3.
Ms. Tina Artuso has been a Residential manager for the last 4 years of her total 13 years employment
with the Employer. She and Ms. Osborne scored the applicants "Qualifications" Bench Marks, at
a time when she had been off work on maternity, since January 2,2007. (She and Ms. Osborne
independently score each applicant then averaged the final score.) She was asked to do this "because
it was felt I knew the candidates' qualifications better than Ms. Ackerman may have." She would
have personally supervised those who worked in her residence, while Ms. Osborne would have
supervised those in the other of the two residences.
In regard to Ms. Symonds' Qualifications Section 1 ("attitude"), Ms. Artuso scored 1 point (i.e.,
"negative attitude"). "I felt that Ms. Symonds tended to get into power struggles - almost setting
them up for a behaviour [like] acting out - with individuals we support, also, based on a couple of
incident reports. . . . Ms. Symonds would have been talked to about her approach. It happened on
a number of occasions, so I'm not convinced she's attempting to improve herself." An incident
report is made, "If there's a behaviour or incident, for example, [a resident! client] hitting somebody,
a behaviour out ofthe ordinary." Ms. Artuso referred to a Hallowe'en evening event in 2005 when
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one of the residents wanted to go home early. That resident became upset when she was not taken
home by Ms. Symonds and ended up "hitting, punching and tried to bite [employees]." Ms. Artuso
said, "I didn't feel [Ms. Symonds] had given [the resident] options, or choices, or alternatives for
[the resident] to get out of the situation. Ms. Symonds was not picking up on the signs. Other
alternatives could have been given." On December 30, 2006, Ms. Symonds had been dealing with
that same resident and had asked her to brush her teeth. "Ms. Symonds felt [the resident] was not
listening to reason. I felt Ms. Symonds was setting up a power struggle. I felt it could have been
handled differently. . ." The resident "eventually punched Ms. Symonds." Other than those two
incidents, Ms. Artuso said, as to her score of 1 point, "Just [Ms. Symonds'] overall attitude. At that
time she wasn't. . . like asldng for help - what can I do differently? It didn't seem she had enough
experience. "
In cross-examination, Ms. Artuso agreed she had supervised, "at some point", all the applicants. She
was not infOlmed about anything that had occurred during her time off on maternity leave. She did
not review personnel files; "There wasn't anything in them to look at." She did not review any
resumes and did not review any of the performance appraisals that had been completed. She said
it would be "very rare" for there to be discipline in an employee's personnel file; "I can't be one
hundred percent sure but if something had happened, Ms. Osborne would have said to 'Check it out,
there's a discipline in a file'."
Ms. Artuso said she scored all applicants' Qualifications Bench Marks in one sitting, which lasted
no more than three hours. She based her assessments strictly on her experiences with the applicants
prior to her maternity leave. In regard to Section 1 for Ms. Symonds, Ms. Artuso reviewed the 2005
and 2006 incident reports only in preparation for her testimony and not when scoring her, and said,
"But I recall the incidents." She also recalled that the incumbent was involved in the same
Hallowe'en incident as Ms. Symonds. Ms. Artuso agreed she reviewed no incident reports for the
other applicants. She had no way of knowing if there were incident reports involving them made
during her maternity leave; "I felt I knew the applicants a ton more than Ms. Ackerman." As to the
incidents involving Ms. Symonds, Ms. Artuso, when asked if Ms. Symonds had done anything
wrong, said "I felt she could have done better. . . I felt she had a negative attitude." She agreed Ms.
Symonds has never been disciplined and agreed she had done nothing wrong in the Hallowe'en
incident. She could not say what "signs" or "signals" the resident would have made to indicate she
wanted to leave early. She agreed it could have been the incumbent who the resident was signalling
15
to that she wanted to leave early. She agreed that according to the 2006 teeth-brushing incident
report, Ms. Symonds had done nothing wrong, "But it says [the resident] was not listening to
reason... not sure [what that means] other than [the resident] wasn't listening to [Ms. Symonds], to
brush her teeth." Ms. Artuso agreed that the resident in question is "pretty explosive" but added,
"She has pretty good indicators when that is going to happen." Ms. Artuso said that after the
incident, she recalled that, "I spoke with Ms. Symonds. . . on the telephone. . . about how we'd do
things differently next time."
In re-examination, Ms. AIiuso said that a file of incident reports is kept at each residence and is
accessible to all staff. The expectation is that staff will review the file at the start of their shift.
The Union submitted that art. 14.04 is a hybrid of "threshold" and "competition" clauses used to
determine a successful applicant in a job posting competition but lilce those sorts of clauses requires
an objective, unbiased assessment of the grievors "skill, ability, education, seniority and
qualifications" for the full-time Counsellor I posted position. In the instant case, however, none of
the accepted job competition practices was used to make the required assessments.
The Union argued that the four Interview Questions all ask an applicant to recall a scenario he or she
was involved in and spealc to that personally-experienced situation; that is, there can be no right or
wrong answer, unless the Employer here asselis that an applicant made-up a scenario. In particular
regard to Question 4, the Union argued it is at a loss as to why the Employer would want to know
what an applicant thinlcs a co-worker' s values and behaviours are; even if an applicant could so, any
response would be a totally subjective one. Thus, as long as an applicant gave an example of the
situation he or she was asked to recall, he or she must be given a perfect score, given that the
. Employer was asldng about personal experiences, and, a less-than-perfect score means the personal
experience offered "wasn't good enough." Moreover, because the Employer interviewers did not
inform the applicants of the scoring scheme, which both interviewers said they probably should have,
it was an improper use of the selection process, in that every applicant must lmow what the Einployer
wants or seeks by way of the question, and, what the elements of the answer are wOlih. This lack
of information as to the scoring scheme is a fatal flaw in the Interview Questions. In short, it was
said, none of the four Interview Questions, which simply ask applicants to recall subjective
16
experiences which cannot be graded on a scale, assists in deciding which candidate is most qualified
for the position.
In regard to the Qualifications pmi of the selection process, the Union acknowledged that it had
agreed to have these Qualifications used, but it did not agree to the way the Employer used them in
the instant case. As concerns Section 1, the Union submitted that a score of 5 means the applicant
has no room for growth, which seems counter-intuitive to the notion that everyone has room for
growth. Further, one grievor, Ms. Symonds, scored 1 which means she has a negative attitude, but
there was no discipline on her file or a notice that she has a negative attitude. Moreover, while Ms.
Artuso could recall no specific instance of Ms. Symond's purported negative attitude, she
nonetheless scored her as having one. That is, Ms. Artuso's assessment of Ms. Symonds' attitude
was completely subjective.
As to Section 2, the Union submitted that sinc~ managers do not work alongside employees but
rather, oversee them, it is difficult to understand how applicants were assessed as team players when
the managers did not ask other employees about the applicants' ability to be team players - whatever
that means, nor review applicants' resumes, or personnel files, or even incident reports involving
applicants and clients. Since one grievor actually scored 1, i.e., "works against the team", one would
thinlc these managers could provide a document or example of that grievor having worked against
the team, but neither did so. Rather, both Ms. Ackerman and Ms. Osborne testified that, in maldng
this assessment, they did so strictly on the basis of their memories, again, completely subjective
assessments.
The Union argued that Section 3 also calls for totally subjective assessments of the applicants.
Moreover, "working with others" is an attribute in this Employer's workplace, yet the most score
is given to someone who works independently. Also, what does, "needs lots of direction", mean?,
and neither Ms. Ackerman nor Ms. Osborne explained what "lots" means. Yet, it was argued,
everyone needs at least some direction given this workplace context. As concerns Section 4, an
applicant gets a perfect score of 5 simply by attending these events, rather than being scored on their
performance or learning as a result of attendance. As well, given that this Section involves scoring
on the basis of the number of sessions an applicant attended, it is totally improper for the Employer's
managers to simply rely on their memories as to how many sessions the applicants attended. Further,
the incumbent scored 4 on this Section when the choices were 1, 3 or 5; how so?
17
More generally in regard to assessing qualifications and ability for the position, Ms. Artuso was not
involved in the interviews. Rather, after a 4-month absence she simply sat down, and strictly on the
basis of her memory, scored the applicants, i.e., the same approach used by Ms. Osborne. In short,
the competition was a "popularity contest" and not even close to a proper assessment of the
applicants' ability to perform the work of a Counsellor 1. The selection process was also flawed by
way of Ms. Ackerman's participation in the Interview process because she does not work in the
Residential Program. Again, the flavour of subjectivity, with no balancing objectivity, runs through
the selection process applied by the Employer.
The Union argued that the selection process is fatally flawed in that not all applicants but only some,
were given the opportunity to contact the Employer's interviewers after the interview to further
comment about their qualifications for the position. That only one did so, and notwithstanding the
evidence that what was said did not change the Employer's assessment of that individual, the fact
that not all applicants were given the same opportunity, in and of itself, fatally flaws the manner in
which the Employer applied its process to the applicants. There is clear bias in the Employer's
selectivity on this issue which invalidates the competition.
By way of remedy, the Union submitted that because the competition process in the instant case was
flawed and not useful for purposes of selecting the most qualified individual, it is appropriate to
order the competition to be re-run, and, that it be restricted to the grievors and the incumbent.
In support of its position on the merits of the grievance, the Union submitted Re Clarington
(Municipality) andC. UP.E., Loc. 74 (Mainguy) (2002),108 L.A.C. (4th) 375 (Mitchnick);Re Family
And Children's Services Of The Waterloo Region and o.P.S.E. U, Local 258 (April 14, 1995)
unreported version (Roberts); Re The Crown in Right of Ontario (Ministry of Community and Social
Services) and OPSEU (Nancy Clipperton), No. 2554/87 (June 14, 1988) (Watters), and, Re Sudbury
Regional Hospital and o.P.S.E. U, Loc. 659 (Paquette) (2002), 113 L.A.C. (4th) 380 (Burkett).
The Employer argued that what makes this case unique is that the parties have agreed to the
"Interview BenchMarks" in their Employee/Employer Relations Committee forjob posting selection
purposes. Thus, each employee is able to lmow what each part of the selection process is worth,
albeit not the actual brealcdown of the scoring. The Employer argued that whatever flaws the Union
18
may point to regarding the manner in which it applied the agreed-upon Bench Marks in the instant
case, those only emerge through "the intense light of hindsight", but which flaws do not make the
manner of Bench Marks application inappropriate. Rather, when taken as a whole, the Employer's
selection processes are appropriate, bearing in mind that the performance appraisal system in place
at material times had not been fully implemented. Further, the Employer is a small organization with
only 3 managers, who all participated in the selection process, and 44 bargaining unit employees.
Because it is a small workplace, the managers talk among themselves and they already knew what
was in the applicants' resumes, which had been submitted previously. The Union did not challenge
the managers' memories, so their testimony must be accepted at face value.
As to the manner in which the 3 managers were involved in the selection process, it was appropriate
for Ms. Artuso to score the applicants' Qualifications Bench Mark, given that Ms. Ackerman
managed the Community Programs and not the Residential Program. There was nothing
inappropriate concerning Ms. Acke1man's involvement in the Interview Questions Bench Mark
process, given her position as a workplace manager. There was no reason to look at the applicants'
personnel files since it is the uncontradicted evidence there is nothing in them that would assist in
deciding on the successful applicant.
In regard to the four Interview Questions the Employer used in the instant case, Ms. Symonds
testified that each was relevant to the Counsellor Ijob. As to the Union's assertion that there could
be no wrong answer to the Questions on the basis they ask for personal experience, only one ofthe
four Questions was put to Employer witness in that regard and, thus, that argument cannot be made
for all four Questions. In any event, the Questions are valid in that they seek to assess how
imaginative an individual is in order to solve a problem, how broad is their experience, how much
of a team player they are, and, what is it they have learned from their experiences. In particular, Ms.
Symonds did not suggest, as the Union does, she was concerned that the questions are hypothetical
and speculative. Moreover, the appropriate test is not that subj ective experience is somehow wrong,
rather, the test is are the Questions relevant to the job, and if so, they are of value for selection
purposes. In particular regard, to Question 4, Ms. Symonds had no difficulty in figuring out the
Question and, again, being a team player is an agreed-upon Qualification and, thus, relevant to
assess. It is not inappropriate for there to be subjectivity in the marking of the answers to all four
Interview Questions in the context of agreed-upon Bench Marks. That there are no right or wrong
19
answers to the Questions is reflective of the work environment, the demands thereof on the
Counsellor I are not subj ect to a mathematical formula; it is not a one-size- fits-all work environment.
In regard to the "Qualifications" section of the Bench Marks, while there is some degree of
subjectivity in that section, the Union did agree to those Qualifications and so cannot challenge what
it agreed to or "try to get out" of its agreement. Importantly, when the parties agreed to these
Qualifications, there was no performance appraisal system in place, i.e., in agreeing to the subjective
approach, the Union did so knowing there were no performance appraisals, and, knew that a
significant element of subjectivity is built into the selection process. Further, given that art. 14.04
is not a competition clause and, thus, there is no relativity assessment of applicants for a posted
position, the scoring weights attached to the Bench Marks allow the Employer to use applicants' raw
scores more definitively than is usually the case injob posting competitions. Thus, a score of 45
wins over a score of 44 because the Union agreed to the worth of each component.
As to the actual scores achieved by the applicants, the Employer argued, in regard to Section 1 of
the Qualifications, that had Ms. Symonds been given 5 instead of 1, her total score would be 29.125,
which would only move her to 9th place. Moreover, there is no evidence in regard to any of the other
grievors on this matter and, thus, it is only Ms. Symonds' scores that can be properly reviewed.
More generally, the Employer submitted that there are no flaws that would have affected the outcome
of the competition. There is nothing wrong with the managers having relied on their memories given
nothing in the personnel files and no performance appraisals, and, given the small size of the
organization and the involvement of all 3 managers in the selection process.
The Employer submitted it is not a fatal flaw that not all applicants were given the opportunity to
add to their interview after that process. The one instance did not lead to a change in that individual's
score and so did not impact the outcome in the least.
The Employer submitted, in the alternative that should the grievances be allowed, it does not
disagree that the competition be re-run and limited to the grievors and the incumbent. There is
however, no reason for a re-run and the grievances ought to be dismissed.
In support of its position on the merits of the grievances, the Employer submitted Re Victoria
General Hospital andC.B.R.T & G. W, Loc. 606 (1991),21 L.A.C. (4th) 185 (Slone); Re The Crown
20
in Right of Ontario (Ministry of Transportation) and OPSEU (Bent) (1988) No. 1733/86 (Fisher),
and, Re The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing) and Ontario
Public Service Employees Union (Kuntz) (May 7, 2002), GSB#0058/97, 1361/98, 0081/99
(Kirkwood).
In reply, the Union submitted that it agreed to a generic assessment to find the best candidate, but
never agreed to the process which the Employer used in the instant case. It was not appropriate for
a manager who had been absent for some three or four months to assess the applicants. That it is a
small workplace does not negate the fact that employees must be treated fairly and to run a job
competition in a proper way. It is irrelevant that the mark of the individual who did call in after the
interviews did not change.
The issue to be determined in this award is whether or not the Employer improperly denied the
grievors the March 28,2007 posted position of full-time permanent Counsellor 1. I find the merits
ofthe grievances, on the evidence and submissions before me, require determination of whether or
not the Employer improperly assessed the grievors' "skill, ability, education, seniority and
qualifications" pursuant to art. 14.04 when it did not award them the position in issue.
In regard to the appropriate scope of arbitral review of an employer's decision, as here, concerning
the promotion or selection of the successful applicant for a posted position, in Brown and Beatty,
Canadian Labour Arbitration, 4th ed. (Aurora, Ont.: Cmlada Law Book, Inc.), the authors state,
relevant to our purposes, as follows:
As a general rule, arbitrators have been reluctant to interfere with managerial decisions of
this ldnd unless there is evidence of arbitrm'iness, discrimination, bias and/or bad faith, or an
indication that the employer's judgment was unreasonable in some basic and significant
respect. In the usual case, and paliicularly when the job is a skilled or technical one, the
issue is not viewed as whether the grievor in fact possesses the requisite skill and ability but,
rather, whether the employer's decision as to those matters was reasonable in the
circumstances.
In applying a standard of reasonableness, al'bitrators have generally perceived their review
to comprise two parts. hlitially, the arbitrator must make some determination as to the
21
requirements of the job and, against those requirements, assess the reasonableness of the
standards or criteria utilized by the employer in making its judgment as to the relative
abilities of the competing applicmlts. Having made that determination, the arbitrator must
then assess the manner in which the employer applied those standards to each of the
applicants.
In the instant case, there is no issue as to the requirements of the Counsellor I position as provided
for in the job description. Further, the parties m'e agreed that the standards or criteria to be utilized
by the Employer in selecting the successful applicant are those as agreed to by them in the
Employer/Employee Relations Committee, i.e., the "Interview Benchmarks" and the maximum score
attributed to each: (1) 4 Interview Questions (20 marks); (2) Seniority (5 marks); (3) Education (5
marks), and (4) Qualifications (20 marks). Rather, the dispute between the parties is in regard to the
second part of the arbitral review, nmnely, "the manner in which the employer applied those
standards to each of the applicants" Brown and Beatty, supra. In regard to this second component,
Brown and Beatty provide for the manner of arbitral review at para. 6:3100, citing the Ontario
Divisional Court's ruling in Re Canadian Food & Allied Workers, Local 17 5 v. Great Atlantic &
Pacific Co. of Canada Ltd. (1976) C.L.L.C. ~14,056, at pp. 334-5, as follows:
"The [arbitration] board as a creature of the collective agreement must then see to it that the
provisions of the collective agreement have been complied with; its role cannot be more or
less than this. The honesty and lack of malafides [Emphasis in original] in making the
decision are factors to be taken into account. So, too, is the question of whether or not the
employer has acted reasonably. Indeed, in determining the 'reasonableness' of the
employer's decision, the board may go a long way to determine the issue submitted to it.
However, once the collective agreement malces provisions as to the method of selection of
employees for promotions, then the board must see to it that those provisions have been
complied with and in so doing, it cannot restrict itselfto determining whether the employer
acted honestly and reasonably. . ."
In the instant case, it is the Union position that the manner in which the Employer applied the Bench
Marks, specifically the 4 Interview Questions section, and, the Qualifications sections, did not
reasonably allow for a proper assessment of the grievors' "sldll, ability. . . and qualifications", there
being no issue raised by it regarding "education" and "seniority" as also provided for in art. 14.04,
for the posted Counsellor I position. More particularly, the Union contends that the 4 Interview
Questions do not allow for proper assessment of applicants' sldll, ability and qualifications, and, that
the manner in which the Employer scored the applicants' Qualifications was improper. Moreover,
it argues that the Employer's assessments of both Bench Marks is so flawed as to be fatal to the
decision on the successful applicant. In addition, the Union position is that the selection process is
22
also fatally flawed by way of the Employer's failure to provide all applicants with the opportunity,
provided to only some, to call in after the interview in order to augment their responses to the 4
Interview Questions.
In Re Clarington, supra, the union contended that the grievor had been improperly denied the posted
position for a Municipal By-law Enforcement Officer. The union argued, among other things, that
the employer erred in "relying on the test as the sole determinant of acceptability, without any weight
being given to the actual experience of the grievor in the law enforcement field" (p.378). In that
case, as here, the grievor's "test" consisted of a series of questions asked in an interview. As to the
matter of a test as the sole determinant of an employee's qualifications to perform a posted position,
arbitrator Mitchnick states at p.378:
The cases, however, do indicate a concern about relying solely [Emphasis in original] on a
"test" as the determinant - partly because the test may have deficiencies in areas such as
relevancy, clarity, or objective measmes of scoring; and partly because it may be unfair to
judge a possibly ill or simply nervous candidate on the basis of a single hom or two's test
performance, when that employee may have a significant track record . . . over the longer
term that ought fairly to be given consideration as well.
The instant case is distinguishable from Clarington in that the Interview process or "test" here, was
only one of four Bench Marks used by the Employer in deciding on the successful candidate.
However that employer, as in the instant case, scored the grievor on the basis of her answers to
interview questions. Accordingly, arbitrator Mitchnick scrutinized the interview questions, "to
assess [their] fairness" (p.381) in light of the arbitral approach to the requirements ofa selection
. process of this natme. He states, at p. 379:
As arbitrator 0' Shea repeated inRe Inglis Ltd and Us. W, Loc. 4487 (1979),22 L.A.C. (2d)
175 at p.184: "A written test which has been formulated to test the threshold 'ability to
perform work' must be characterized as providing 'objective evidence' provided that an
objective standard is applied when grading the test.
As to the notion of "objectivity" in both the test and scoring thereof, arbitrator Mitchnick, at p.380,
cites with approval Re Inglis Ltd, supra, p.185:
". . . a proper written test which is marked pursuant to a fixed and reasonable standard must
be considered as objective evidence which may be utilized by the company, along with other
available objective evidence to determine whether a senior employee 'has the ability to
perform the work' . . ."
23
In assessing the degree of objectivity in the interview questions and scoring thereof, arbitrator
Mitchnick states at p.381: "But the first thing I note is that, while all of the [interview] questions
were scored as a "test", many ofthem were intensely subjective (as was Mr. Creamer's [i.e., one of
the employer's interviewers] view of what would constitute an appropriate answer)." He also noted,
at p.382, that the grievor "was not told the number of marks allocated for a 'correct' answer."
Relevant to our purposes, the above indicates that where interview questions are treated as a test in
the sense that the answers are scored, firstly, the questions themselves must provide for objective
evidence of an applicant's ability to do the job and, secondly, the scoring must be done against an
objective standard, i.e., "fixed and reasonable" Re Inglis Ltd., supra, p.185.
In applying the above arbitral approach to the issue at hand, as concerns the 4 Interview Questions,
Questions 1, 2 and 3 require the applicant to recall a personal experience relevant to the type of
situation identified in each of those three Questions. Each of those questions does provide the
applicant with directions as to the content of their response, for example in Question 1, "What was
the situation, what did you do, and what was the final outcome?" While the directional questions
may be said to provide for a degree of objective evidence of ability, nonetheless, the response to the
first three Questions is solely dependent upon an applicant's interpretation of what constitutes the
situation. Therefore, as long as the applicant provides a response to each of the three directional
questions, he or she will have fully responded to the Questions (assuming the situation he or she
described meets the type of specified situation). That is, the subjective nature of the fIrst three
Questions militates against their efficacy as objective evidence of ability to perform the Counsellor
Ijob due to a lack of a fixed objective standm'd in the Questions themselves.
As concerns the Employer's scoring scheme, firstly, I note that in Questions 1 and 3 points are
awarded for matters not addressed in the directional questions, namely in both what the applicant
could "have done differently". Absent this "cue", the applicant's score on this element is totally
dependent on whether the situation he or she recalled entailed such a circumstance. Secondly, the
scoring scheme reflects subjective and not objective fixed standards. This is necessarily so due to
the lack of a fixed standard in the Questions themselves. Further, the subjective nature of the scoring
scheme can be seen in Question 1 where marks are dependent on whether or not the applicant "fully
described" a situation. Not only is the applicant not asked to "fully describe" his or her personally-
chosen situation, but that determination is dependent solely on the interviewer's subject view of what
24
constitutes a "fully described" situation. Similarly, for Question 2, whether or not the examples are
"solid" is an inherently subjective assessment.
In regard to Question 4, firstly, it asks the applicant to lmow the minds of his or her co-workers, an
inherently difficult, ifnot impossible task. Secondly, the scoring scheme requires an applicant to list
"at least 5" of those behaviours but there is no direction for that amount in the Question. In any
event, and notwithstanding the impossibility of reading others' minds (and there is no evidence that
applicants and co-workers ever engaged in discussions as to behaviours most important or valued
by or in each other), it is difficult to conclude that an applicant could not have scored at least 4,
assuming he or she did not list 5 such behaviours. Yet, somehow, Ms. Symonds only scored 3 on
that Question.
A manager's subj ective assessment of an applicant's ability to perform the work of a posted position
is not inherently improper when that assessment arises reasonably from objective, relevant evidence
of his or her ability. In the instant case however, while the 4 Interview Questions are relevant to the
job of Counsellor I, there is no objective standard in the Questions themselves, given that they call
for applicants' subjective interpretations of the Questions. Consequently, there is no objective
mechanism or standard which the Employer can use to assess the response aside from the directional
questions but which, however, are based on a fundamentally subjective interpretation of the
Question. Rather, the interviewers imposed their own subjective standards in marking the responses
and in so doing, purported to assess applicants' personal subjective experiences. In my view, and
I so find, the 4 Interview Questions do not meet the test of objectivity for assessing an applicant's
credentials for the Counsellor Ijob in issue due to a lack offixed and reasonable standards in, both,
the questions themselves and the consequent subjectivity in their scoring. Moreover, the scoring
scheme itself is deficient in that the allocation of points is not reflected in the directional questions
in each of the 4 Interview Questions.
In regard to the Qualifications Bench Mark, it is not disputed that both Ms. Osborne and Ms. Artuso
relied solely on their memories in marldng the applicants concerning this Bench Mark. It is also not
disputed that no applicant has been disciplined, that there is nothing in the personnel files which
would inform the decision-maldng as to the successful candidate, and, that at .the time of the job
posting no performance appraisals were reviewed because not all applicants had completed those
evaluations. Although the applicant resumes were not reviewed, the uncontradicted evidence is that
25
these were reviewed by the managers when they had previously, within the last six months, applied
for posted positions. Further, the evidence is that all applicants are supervised by Ms. Osborne and
Ms. Artuso, albeit in the latter's case not for some four months prior to the job posting. Thus, it
would seem that Ms. Osborne and Ms. Artuso are well-acquainted with the 12 applicants. The
uncontradicted evidence, also, is that the 3 managers are well-aware of the events in each of the
residences. As Ms. Ackerman testified, they work as a team, keep each other informed of what is
going on in their Programs and hold regular meetings when bargaining unit employees may be
discussed. There are, as well, incident logs or books at each residence and all staff are expected to
review them when coming on shift. The small size of the workplace also contributes to Ms.
Osborne's and Ms. AIiuso's awareness of the applicants' work performance. The issue, then, is
whether or not in these circumstances it was reasonable for Ms. Osborne and Ms. Artuso to rely
solely on their memories, which were not called into question by the Union, in scoring the
applicant's Qualifications Bench Mark.
I accepted there exists no relevant objective evidence as to an applicant's ability to perform the
Counsellor Ijob in personnel files, and, that no applicant had a discipline record. Further, because
not all applicants had a performance appraisal completed prior to the selection process, it was
reasonable and fair for the Employer to not talce into account any of the completed performance
appraisals. (cf, Re The Crown in Right of Ontario (Clipperton) supra, and Re Family and Children's
Services of the Waterloo Region, supra, where this sort of objective evidence did exist but was not
talcen into account.) I fuliher accept that had there been an incident report involving an applicant
during Ms. Artuso's 4-month absence, Ms. Osborne would have so informed her. In that respect,
I accept the evidence that the 3 managers of the some 44 bargaining Ulut members are in close
contact with each other in the workplace mld through their weeldy meetings. In these circumstances
there is no doubt that a degree of subjectivity will enter into the managers' scores for the applicants
concerning the Qualifications Bench Mark. The difficulty, however, is the lack of any objective
standard or measure, given that both Ms. Osborne and Ms. AIiuso relied solely on their memories,
in scoring the applicants' Qualifications Bench Mmk There are also specific flaws in regard to the
application of this Bench Mark. For one, the scoring scheme for Section 1 is based solely on an
applicant's "attitude" yet that section also identifies "character traits" and "the way the person
presents themselves" as matters to be considered. As concems Section 4, while that Qualification
spealcs to attendance at workshops and seminars, the scoring scheme includes "attendance at staff
meetings", Moreover, given that the incumbent scored 4 points for this Section, it is apparent that
26
the managers were not consistent in their scoring of Section 4, which calls for 1,3, or, 5 points. In
short, I cannot fmd that the Employer fairly and reasonably applied the Qualifications Bench Mark
in assessing the applicants' ability to perform the Counsellor Ijob.
I further find that the selection process is flawed by way ofthe Employer having provided only some,
but not all, of the applicmlts with the opportunity to call in after the interview in order to augment
their responses to the 4 Interview Questions. In my view, it is irrelevant that only one of those who
was offered this opportunity took advantage of it, or, that the individual's score did not change as
a result. As indicated in the Clarington case, it is imperative that an employer exercise fairness in
assessing applicants for a posted position. It is not fair for only some applicants and not others to
be given the opportunity to improve their scores for selection purposes.
Based on all the foregoing, I find that the Employer's selection process did not properly assess the
grievors' "skill, ability, education, seniority and qualifications" under art. 14.04 for the posted
position of Counsellor 1. I find its application of the 4 Interview Questions Bench Mark was flawed
by way of absence of objective standardized measures in the Questions themselves and by way of
a flawed scoring scheme (cf Re Victoria General Hospital, supra, where "poorly designed"
interview questions flawed the selection process). I find its application ofthe Qualifications Bench
Mark was flawed also by way of absence of objective standardized measures and by way of a flawed
scoring scheme. I find that the selection process was flawed by way of not providing all applicants,
but only some, with the opportunity to call in after the interview in order to augment their responses
to the 4 Interview Questions.
I find these above flaws invalidate the selection process, notwithstanding that there is no suggestion
that the 3 managers acted in bad faith. I find that these flaws are fatal to the Employer's ability to
properly select the successful applicant. These flaws, in my view and I so find, are fundamentally
incompatible with fairness and reasonableness in assessing applicants' credentials under art. 14.04.
(cf, Re The Crown in Right of Ontario (Bent) supra, where although "numerous and not
insignificant" defects were found to exist in the selection process, "the questions were appropriate"
(p.12)).
By way of remedy, I direct that the competition be re-run. In that regard, I concur with the view of
arbitrator Burkett in Re Sudbury Regional Hospital, supra, at p. 383, wherein he cites with approval
27
Re Zuibrycki and Ontario (Ministry of Industry & Tourism), G.S.B. File No.1 00/76 (Prichard) where
arbitrator Prichard found that unsuccessful applicants to a job posting who did not grieve the
employer's selection ofthe successful applicant, " 'have forfeited any claim they may otherwise have
had to the positions' ." Thus, in the instant case, I direct that the re-run competition be open only to
the five grievors and the incumbent. This remedy, moreover, is as requested by the parties.
The grievance is allowed.
Dated at Toronto, this
~d-
day of ~ 2008. .
G~jj~ fl. mJ
William A. Marcotte
Arbitrator