Loading...
HomeMy WebLinkAboutConnell 09-12-02 Feb. 8. 2010 11:19AM No.5313 P. 3 TN THE MA ITER OF AN ARBITRATION BET WEEN: WHITB Y MENTAL HEALTH CENTRE (Hereinafter referred to as the "Employer' ~ ANO - ONTARfO PUBLIC SER VICE EMPLOYEES UNION (Hereinafter referred 10 as .he IlUnion") And in the MaUer of the Grievance of .Beverley Co""nelJ Alleging Irttproper Selection on ll. Job PosUng JOSE:Pli b, CARRIER Sole Arbitrator Appeanmces For Ih~EmpJo)!4(l.i. Cralg Rbi Ellen Silver Boh B!~weU DeOna Durack Sheila OaJlilgher Julie Patalful Counsol Hick Morley Sludenl-ar-Law Director. Human Resources, WMHC Humlm ResoUTC<lB Commltaot. WMHC Clinical Manager, FA V, WMHC CljnloaJ Mtml\ser, FCRU &::TbU WMHC Adrllhuslrative Dire<<or, Fo1e>>ll(c Program Human Resources Studenl Human Resources ConSWlaot Jjl'l1 Cyr KrySlaJ WilHam lo.oetLapoJ1(l .d"npoarMCes for VIe Union; John Brewin Hev ConrceU Karon PreKlon Yvonne Lewis JOnathan Leung Fe.tti Lang Counsel Orievor Pctmidenl, Local 331 - Advisor Vice-President) Local 331 Tceasurer~ Local. 3:l1 Chief Steward AppearanC6.';;' (or the Iuc-llmbCJl!l lt1aneltc Daubney Carole Black Joall Oate6 Incumbent EmploYl:e Maloor Qr 1. DaUbnty Ex.union President, Local 331 HeiUlrtgs 1D (his matter were held in Aj<<x. Omario, on November 27, 2006, February 24, March J. March 19) June 1, R) 15) July 20 and September 29) 2009. Feb, 8. 2010 11:19AM No.5313 p, 4 A.WARD In the case at hand, the Grievot, Ms, &verley Connett, n full-time employee of the Whitby Men(at Heulth Centre grieves tllld in OCTober 200B she was wrongly denied the posted posJH6t1 of Personnel Care AssisllInt withln. lhe FRU Departme)H. The posilion was IO!tend awarded to Ms. Jeanette Daubney, an emproyee signJficanUy junior to her. Ms. CoDD8JI had been employed in the Housekeeping Deparunenl since 1986. Ms. Doubuey had joined the ell1ployer as a part- lime Pernonal Care Assjstanl in October 2005. n was the Union's P08ition that the selection process was flawed from the outset and that efforts by rh~ Employer to rectify its errors Were unsuccessful. Since Ms. Connell was l11e senior i quaJJfied ll.ppUcaot among tho five who applied, sbe ought to have been awarded the. posiUon. That is especieJJy.$o in this case sInce none of the other unsuccessful candidates have chosen to grieve the issue. PToceedin~ in this mat1~r were excepflonal since Mg. Daubrt~y, the successful Candidate, with the assIstanct of Ms. Joan Oales~ the Ex-President of the UnJon l.4eal , parucipaled most ~cUvel)' in aU facets, At [he oulset of ptoceedin~ cnunsel for the Employer. Mr. R(,r. wtd the Union. Mr. Brewin. had prepared a joint Statement of Pacts to assist in presonlatioll of (he CMe. Aller some revJew) Ms. Jeanelle Daubney, and her advisor, Ms. loan Gales, conllrmecj that the statement was acceptable subject to s~cific challenge 10 the content of paragraph 36, That paragrtlph, which wHl subsequently be Sft out in the exmtext of the Slalement of Fllct. refenJ to an opinIon g1ven by Ms. Feb. 8. 2010 11:19AM No.5313 P. 5 -2- Taylort who supervl~d both (he GrJevor, Ms. Connellt ltnd the incumbent, Ms. Daubney, whUe each Willi temporarily assjgned to 8 peA j>Osttlon under her authority. The S talement g~erts thai Mil. Taylor offered her view that she would l1ave chosen Ms. ConneJl, by a slim m!U'gin, over Ms. Daubney bllS(ld on tbeir performance in the teJnpora..ry positions. That view contradicled her choice of Ms. DaubDey over Ms. a>flneIl when those temporary peA positions had beeD aWlll'ded in May of 2008. approximately five (5) months c.arlier Ihall this Cut:t'eflt competition. In Ihe circmm:t81lces of this cho.llElnge, the Parties deteI111irred tbut viva voce evidence would be C<lHed. However. the Stateme.nt of Fads whiCh { have set oul below provides an excellent context within which the testimony can be consJdored; ( Statement of Fa,c\.S 1. A collective D&reemen( is in force between the parties to lbls grievance. (Exhibit 1) 2. The first collective agreem(lnL was negotiated subsequent to the divestment of the hospltJ1J from the Crown 10 the Whitby Menial Heatth COOlte and subsequent to the voJunrary reco~ition of OPSEU as the bargainlng: agent, 3. The grievnn~ WIl!l filed by Beverley Connell on Octo~r 14, 2008 (Exhibtt 2) 4. Mr. Corner has jurisdic:Hon to..hear and determine 1he grj~Ya.nce. 5. The grlevllflCe alleges tlU\llhe. Employer was in breach oftbe Collective Agreement in ll'm W9,y it condllctod a job competition for n permanent full-time Patient Care Assistant (peA) posilion in the Forensic Community Reintegration Unit (FCRU) of the Whitby Menial HeaJfh Centre and in aWllrdJng the position to a person other than the GrieVQT. 6. The successful flppHc8J1t was JeMneUe Daubney. She has been notified of these procee.dlngs including the hearings scheduled for FebrulU')' 24 and March 3~ 2009. 7. Article :)'4.06 of the CollQctive AgreeMent provides thaI. in ft(Jing posted vacanctes ..the selection shall be mAde based on sklU, ability, e.xperience, and Feb. 8. 2010 11:19AM No.5313 P. 6 ~ J . relevant qUAlifications of th~ appHcanls. Where thelie factors are rels!ively equal bargaining unit seniority shall be the governing factor". 8. The GrlevOl &verley Connell hM greater bargajnJrr& unit seniority than the successfulappllcant Ms. Dllubney. 9. ~ issue in theS4 proceedIngs is whelher the Ernplo yer properly assessed the relative skill, ability, expenence and relevant qua.lifications of the two app1iCllnts~ Ms. Connell and Ms. Dl\ubney. If nOl, should the GrievoI be appointed direetly inlo the position or should the oompetilion be re-run? If fe-rerun, under what (enns and conditions. 10. The competition Wits posted on August 15, 2009. (El:hibh 4) The posting accurately sehi out the dutll!s and the requfred qU6Iifications for tbe position. L], Ms. Daubney and Ms. COMel! applied) among three olhers. 'fhe competition closed August 2912009. TIteir resumes were included with their i\pplic.alions. (B~hibits 7 and 5) 12. Both Ms. CotIDeU Bnd Ms. Daubney had been employed from May 2008 00 an actiug basis as PCAfl in another unit (Forensic Transition OniO, The duties are similar. 13. Ms. Connell indicated in her appJi~tion that she would out of tho country front September 8 10 23,2008 as sbe In fact was. She hellr'd nothing about the competition before shel~ft, 14. Ms. Daubney and Ute other nppJ[cant~J except for Ms. ConneU, were interviewed on September 11, 2008 by a parn:l consJ8ling of Sheila Gll.Ilagl1$f~ Clinical Mltllager, Forensic Assessment UnJt and Deena Durac~ Human Resource~ consultallt, 15. TIle Employer hIlS in place a polley on Recruitment and Selection lhat provides thaf, subjB(t to changes ftpproved by Hun~M Itesources~ selection panels wUl includo tJle immedrate manager of !.he position under com'ideratiOD. (ERhfbH 8) A las~ mlmJte plltieT\t emergency C6.used Ms. lu1l6 Paradis, Lhe immediate manager, 10 seek a. substitute. Ms. Durack W8S appointed to panicipate in the selection process in pIau of Ms. Paradis. 16. The panel asked each interviewee the 5lUl1e list of quest1on.~. The paIlel s<:orcd the applicants based on how their answers compared 1O sU8i8Hted 11Il8Wers lhat were determIned prior to the inltHviews. The same panel membe~ interviewed each applicant, i 7. At the end. Of the interviews, Ms. Daubney had the highest &COro of any appJicfUll Ms. D!I.ubne y was scored 36 out of 50 by Ms. Dur~ck and 35 out of 50 by Ms. Gallagher. (Exhibit 9) Feb. 8. 2010 11:19AM No.5313 p, 7 - 4. 1B, Based on the resuha of the interview. iha Emproyer decided to award Ihe position 1(1 Ms. D8.ubneYt subjoct to a reference check.. In makins its decisi(ln the Employer did nol .seek to review perfonHanoo y&]ualions or check with 8ny previous supervisors including SUSP.1I Taylor who was the IYIllna.ger of both Ms. Daubney BDd the GrievoT in tlIe acring PCA position during the previouS' five months. 19, Before confirming the decision to award the po1iltion to Ms. Daubney, Ms. Paradis phoned Ms, Taylor to conduct Q reference check of Ms. Daubney. Ms. Taylor provided Ms. Paradis wiLh 8 positive reference check, . 20. On Ms. ConneU's return to work., she learned that the position had ~n awarded 10 Ms. Daubney. 21. On Se.ptember 29, 2008 Ms. Connell tlnd the Local Union Stoward PaW Lang met with Ms. Paradis lllid Janet Laporta Qf the Employer1s HWl1an Resources department in Ms. Laporte'8 office. Ms. Laporte gaid thl\t there had been a mistake In the interview p~85. When Ms. Connell asked why s.he had not been lnterviewedj Ms. Laporte saId 1t Wits 1111 fIR error. 22. Ms. COMall and M.!l, LlUlg~s recollection is that Mg, Laporte thetl said that on reviewing Ms. CorutelJ's resume h WIlS clear, based on he!' work experience, qualifiQl(ions and seniority demoIDitrated in lb reSume, that Ute positioJl w~ hera.Ms. Laporte aSked Mil. Paradis to advise Mg. Daubney of this andlold Ms. Connell thaI she would take oV~r the position once that bad been done_ 23. .Ms, Laporte's recollection is thai she offeJed her opinlon thatlbe position ~ouJd be offered to ~, Connell a.nd Qn~ Ms. Paradis informed Ms. Daubney of1he cirCUIDSbil'lces, the positioh would be given to the Grievor. At the end of the dlsCU/ision Ms. Lapot1e says she advised the Grievor and Ms. Ut'Dg that the position change would have 10 be approved. by the "bigher ups". This meant it would require the approval of Jim. Cyr, the Adminis1raliV6 Director of the FOJ:ensics Program, 24. The Union~s evidence would be that when the above conversatfon was reported that d~y 10 Karen }'lrestotl, President of OPSEU Local ~'lJ Ms. Preston called Ms, L.'\porte. M.g. Laporte told Ms. Pte~t-On that because of Ms. Connell's jjrc.vious rnslotyl quaUf1cations and work experienct~ she would be lhe sUC(essfuJ canljldute. Her seniority insured that 1611ull. There had been an error on the part of HR and it would be addressed. Ms. Laporte dOtlR nol recall this colwe:rsalion. 25. At 9;10 a.m. 0" September 30, Janel Laporte Wrote Karen PresrOfl, President of OrsEU local 331 Doting that Ii switch of the positions would occur. A copy M that e-mail is at .B.xhibit 10, . 26. Later lhut day (September 30,2(08), Ms. Paradis: Jnfonned Ihe Administrative Direclor of the Forensics Program, Jim Cyr, of Ih~ mistake that occurred in the interview process. It was decided l.lmt the decision would be re..opened. that Ms. Feb. 8. 2010 11:19AM No.5313 P,8 -5- COl\neJl would be interviewed and that the same pal1ellh&~ had conducted the interviews \Yilt); the other Dlndidflles would conduct the interview of Ms. Connell.. This was diRCussed with Ms, Daubney and wHIt Ms. Connell. 27, On September 3D, 2008, Ms. Paradis contacted Ms. ConneU and explained to her that there Was a mis~ke wj(h the process and that to make the process it fair one, the same interv~ew tool and panel Would be llsed to condu~t an interview wlth her. Ms. Parodfs wUl say tbflt she noted thll,l (he outcome would be scored and that this process wouJd detelmjne the ~lJtcorne. Ms. Paradlli gave Ms, ConneU tIle option of doing lhe iolerview over the next few dayg, Ms. Connell indjcated (hal she would be "ble to do lhe interview the next day. Ms. PamdJs and Ms. Connell agreed to foUow-~p the next morning to llfI'lmge a specUlc time for the int~fview< 28, On September .3{llb, the Grlevor advised F~1tl Lang that she would be required to be Irtle.rviewed for Ihe position, 29. At arQund 9:30 a.m, on the next day - October 1. 2008, Ms. Pararu8 phoned Mfl, ConneH ilt home to schedule the intervJew. 30, Ms. Laporte and Ms, Lang wele at another arbilration hearing on October 2, 2008 and confirmed that fOllowing Ms. Connell's interview, Ms. Connell WAS not the successful candidate. ( - 31. As planned the inrelView Willi conducted by the 8Jllne pariellhat bad interviewed the other tlppJicnnl'i and h.ad selected Ms. Daubney. The same questions asked of Ms. Connelllhat bad earlier boon asked of M~. Daubney and 1be other candidales. 32. M~, ConneJl WM scored 22.5 out of 50 by Ms. Duravk and 20.5 out of 50 by Ms. Gallagher. (Exhibit 11) 33. MS'. ConnetPs seore was the ~cond lowest relllt1v~ to the other four applicants intelVlewed. No olher CJlndldt\tes grieved. 34. Upon the conc!WJiol\ of the GrievorJs interview, the panel recommended that the position should be awarded to Ms. Daubncy, MI'i. Paradis contacted Ms. Connell 10 advise her of the results of the intervjew and to adviSe her lhat she WflS not the Sll'ccessfu! candidate. 35. As WilS lbe case with Ms. Daubney, the decision-makers did not review Ms. ConnelPs pcrfonnance evaluations. The decision-makers did not seek the feedback of Ms. COnne!Ps SUpervbQfS. Ms. Connell's last perfonnance evaluallon was conducted in 2004. 36. M~, 'TAylor has subsequently been 8sked for het M$.essment of the two candidates, She says thai both were eqUal in thelr IWrlbnnance on the job, Ihough the Grfe'Vor pfe~nted as more efficienl and professionalln m/Utner. Overall. she /lays that she would rale Ihe Grievor 3S the best choice fur the position. Feb. 8. 2010 11:19AM No.5313 P. 9 .6- 37. BOll} parties accepl ,har the questions in the iJlleIViews were appropriate 10 1110- position and thai the preferred ans",:ers were reasollable. The parties agree thaI the recorded answers 3CC1U'B1ely rellect the Il...01iWeni given by Ms, Connell and tha1 Mg, Connell's answers were scored rea.wnllbly agaimt th~ preferred answers. The. suggested or prefeJled anSWf:l1:i were acceptab1o. 38. Th~ G.devor has been employed by the Whitby Menfal Heu'lh Cenlro or its predeces!ior since 1982. Her regular position for mOM of the period has b<.,}en in hOllsekeeplng. She prnvlousry worked that the Mental Heallh \)m( of (he Rouge VaHe.y Health System and at BaUycliffe Nl.nsing Home. 39, The GrJevor transferred from he.r housekeeping position to a lempohlry ioU lime peA p<)sition on ITU on May 19,2008. The Grie.vor tnmsferred back. to hor original cleaner position on November 17, 2006. The Grievor then ttarlsfened back tO.ll temporary fuU ti..m.m PCA position Oil FI1J on January IZ, 2009. This position ends on April 14) 2009. 40, The partie!! ~gre~ lbat the resumeS of the two tOlW.didates are accurate. The 'relillmony and AJ1a{y~ ( Needless to :lay there was much confurdoh engendered by the Employer}s errors in ljl'Bt advhing Ms. Daubney thB( she had been lht'l successful eatl.didate and subsequenlly confirming Ihal same resull 10 Ms. Connell, $,Ibeit before she hlld been refereed for 8J) interview. Thal confusion aside, the most importilnl of tbe r-elevanl factors in the selection process respecting Ms. Duubney and Ms. ConneH moy be sjmply outlined as follows: 1. (a) In th~ interview, overall results achieved by Ms. Dllubney were 36 out of 50 in I1ccordance with Ms. Ducack and 35 oul of SO in accordance with Ms. Gallagher. (b) In the interview Ms. Connell's results were calculatccl 8.t 22.5 out of 50 by Ms. Durak and 205 out of 50 by Ms. Galla.gher, (c) The Parties agreed thaI these results signified, l\lleast, lhat Ms. Daubney had parformed 28% better than Ms, Connell durin.g the ioteeview process. 2. Ms, Susan TaylQr after htlvjng supervised both individuals during temporary peA posillons, would have given a marginal edge to Ms. Connell with respect 10 Ole fuJI.time competition now in dispute. She was, however, not asked her opInioh prior to or during Feo. 8. 2010 11:20AM No.5313 P. 11 '8~ If I were to acccp~ 1he submissions of Mr. BrewlJl, I would be obliged to totlllly disregard the interviews in this case and rely solely on (he subjeotive ()pinion of one supervisor who, on my view of the ov(dence, had limited opportunity [0 observe both candid~Hes tluring the four months lhat she supervised lhem in the tempornry PCA posmon. She felt lhey were both ca.pab1o hllhe job but thut Ms. ConnelP s demeanour was more professional thlln tha.t of Ms. Daubney who, to her seemed) bored or disinterested, Accepting her testimony at its bf-sl, il is my view thaf she found Ms. DaubJ\ey and Ms. Connell relatively equal in terms of thefr job performance. LI, for instance, Ms. Daubnoy had been the senior Bmp!oyee~ the marginal prGference she expressed for Ms. Connen would not have eluded the. day, In {he citC.llm81l\tlces, it is my view lhat Ms. Taylllr's evidence, jf acceptoo at face valuc1 dQC.5 little more than demonstrate lhe relative equalIty of the tWo indivIdual:!, On the oilier hand, a finding In favour or Ms. Connell based solely u~n lh~ ad hoc opinion of Ms. Taylor taken together willi Ms. ConnolPIl seniority would be entirely uoo.atisfuctory in this case. The discrepancy in interview results between thfl two candidates was too dramlltic to be loWly disregarded. Indeedt the interview pto.cess. here lUlrOOuced an objeclive element 10 the a&Se~5menl of candidates which could not otheJ'\.lAso be achieved through Ole ljubj~tjve views of a single supervisor. While the On the jOb expcrl&nce and performance of candidates is very impoltant, the interview prqccss does assist iu Ieducing lhe possibility of favouritism lhat might omerwi!le dictate cesulls. In Uris caset the Unjon accepted and acknOWledged that the inteTView questJons we(e Cair and fairly <<ddressed elematH~ releva.nt 10 the job to be performed. Furthermowf the parties agreed that Ms, ConnelPs answers were scored rellBonably against the preferred answerN. Feb. 8. 2010 11:20AM No.5313 P. 12 -9. T am also gaLisfied that several oftha interview questions were designed to elicit Ole eartdidale's relevant past experienca. Accordingly, tber factor was not totally OVtlr!ooked when the employer did not seek input from Ms. Taylor. Her views, while they might have been persulls..lVe in another situation, wou-Id Dot have been deci5ive of tbe issue hore, Thot is especially .'\0 when she herself acknowledged having only ({as neededn interaction with these candidates while they worked in her departrllent. There exf'J:ted no perfolDlance evaluatiOn of elther employee wbl(e they worked temporarily for Ms. Taylor. A(lequaoo perfOrDl81)ce in 9. job on a lemporary basis does not ensure lhalthe employee is the optimal candid"te relevant 10 others who m~et threshold qualifications for the position. The Collective Agreement he.m entil!es Ibe employer to consider comparative "skill, ability, experience and relevant qualiftcatiom of the applicants,..", Reliance upon Ms. Taylor alone In this case would deprive the employer and ~ther candidates. in pll1'ticular Ms. Dal,lbneYJ lhe opportunIty to explore thilt cOlnp:m60n, {rn the circulOshmcesJ I n~jeot the Union's position tllitt the matter should he decided on the b.ll8.is only iliat Ms. Taylor felt the two candldates performed rela.tively equally, wHh a slight edge to Ms. Connell, while. they Worked on a temporary basis a.9 peA's in her deparu'f\enl. Aside from the Employer's failurt (0 consider or even request Ms. Taylor's 'IieWs C<lncemlng these two candIdates, what was challenged by tbe UniOn most significanUy were the circumstance/'! surrounding the interview of Mil. Connell. The fundamental questioIl to be detefIIlined in this respect ill what, if any, reliance can be pJaced upon those interview results in thiE: case. r have considered the events leltding up to Mg, COHnell's interview and the interview proce~ itself and I am of tho yiew that there were sufficiem fllc10fS in thIs casc which cast a cloud over Feb. 8. 2010 11:20AM No,5313 P. 13 .10. the results such that those results, at least with mlpeot to Ms. Connell's: interview are not reHable. Among the f<<ctors which I ha.ve taken into consideratlon are l11e following: L AlLbough Ms. Connell was a legitimate applicant. lhe interview process was Cll.tTIed f)" and completed in her ab~nCe; even to the selecHon of Ms. Daubney as a successful candidltte; 2. Although the BmploYBf Olade well intentfoned efforts to remedy the situation, those efforts were agaIn tainled because: (a) prior to her interview Ms. Connell was advised that {he job would be hers; (b) althoUgh she might have IlrIderstood thai sho would have to be successful in the jntervi6W procass, it was not unreasonable for het to Dssume it 10 be a formality in view ot' het sentority and tha llBSurance previously givon to her tbatLhe Job would be hers; 3. Allhough she was asked t\nd agreed to tlle tinlIng of her interview, she U1~derstood t.hat the Employer was anxious to complete the proceS!l It is no. surprising that sho would have been COmpliant with re.spect 10 the Umel.able proposed to her; ", Although she had a~eed to the timing of her interv{ew, jt clearJy left her with little if any opportunity to sleep fonowing her last shift and prlor to the fnteIView, Indeed the evjdence indicated that she would have been approximalely 32 hours without sleep going into the interview; 5. AlthougbMs, Connell expressed the view thot she had perfbrmcd well in the interview, Ms, Gallagher, one of tbe InlerviewcIS. herself reoog.o~ed that Ms, ConIl~lI was fniling to volunteer f\Jn answers concerning matters which must have been within ber knowledge and Mperience. Indeed. even with prompting Ms, ConnoU's responses Were inadequllle. That . failure c.ooJd be atlributed to tJte fact lhat Ms. Connell had IiOt absorbed or understQod lhe requirements of the PeA poslUon while she had bee.n ttmporarily in mat Job. Alternatively, ~he Was sImply too tired to appredMe the eX[ent of tbe infonnalion or answers whIcb was roughl in the interview. In the CitcumSlances here:, given the even IS I have ouUin~d, it is mJ view thaI M8. Connell must be given the be.-wftt of the doubl and her inadequal.e resullll. altl'ibuled !o the unfort\mBle eVents involving her ibtervlew. In all, I am not saUsfied lhat, in spite of the EmploYI!T' s efforts, Ms. Connell had an opporluuity equal to othdt candidates to perform at a reason()bJe tevel in the interview process. In lilt the circumstances., it Is. my view and finding that there is inadequAte evidence available to assess the reiev8ru factors identWed in the coUecUve agreement to F e b. 8, 20 1 0 11: 20 AM No.5313 P. 14 .11- determine the televant equality or inequwity of lbe two candidates, Ms, Connell and Ms, Daubney witb f6specl fO tho job to bo pc:.tfonned. _ WhUe it :i8 clear thai the circumstances bere mandftte snme re-examirmtion of fhe!ie IWO caudidat.es for Ih6 poshlon, H16 parties have requested !.hat I r'\';tl1it lhe matter of remedy to them for determination. Accordingly, 1 remain seized of lhis matter pending sue<:esslul discussions between lhl) parties conC(ltOing the appropriate remedy or process for re-evalullr.ion of these two l;undidates, In the eVent tbe partIes are unsuccll~ful in lheir doliberar.ions, r trust I will hear from lhem in due course, DATED at Toronto this 2nd duy of Ducmber. 2009. ....