HomeMy WebLinkAboutKenney 10-02-11
OWl 9 4 83:1
IN THE MATTER OF AN ARBITRATION
BETWEEN:
HEADWATERS HEALTH CARE CENTRE
(The "Employer")
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
Local 227
(The "Union")
AND in the matter of the individual grievance of Ms. Donna Kenney
ARBITRATOR:
William A. Marcotte
APPEARANCES:
FOR THE EMPLOYER:
R. H. Hickman, counsel
J. Miller, dir., H. R.
L. Hope, clerk
L. Grant, mgr., patient info.
FOR THE UNION:
M. Bevan, OPSEU
D. Love, pres., Loc. 227
D. Kenney, grievor
INCUMBENT:
S. Silva-Mapplebeck
Hearing held in Orangeville on December 4,2009. Conference call January 27,2010.
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AWARD
In its April 5, 2007 grievance, the Union claims Ms. Donna Kenney (the "grievor") has "been
discriminated against by my employer in that I have been denied promotional opportunities". By
way of remedy, the Union seeks for the grievor to be placed in the position for which she posted,
full-time registration clerk. The Employer position is that there has been no violation of the
collective agreement.
The incumbent, Ms. Susan Silva-Mapplebeck, attended the hearing as an observer.
The relevant provisions ofthe collective agreement under which the grievance arises are as follows:
15.01 a. Posting of Vacancies
i) Where a vacancy exists, or where the [Employer] creates a new position in
the bargaining unit, such vacancy shall be posted for a period of seven (7)
calendar days . . . .
15.06 In filling posted vacancies the selection shall be made based on skill, ability,
experience, and relevant qualifications of all applicants. Where these factors are
relatively equal, bargaining unit seniority shall be the governing factor.
On March 26, 2007, the Employer posted for the position of full-time registration clerk, and
specified the following qualifications:
1. Recent patient registration experience;
2. Meditech admissions and community wide scheduling as well as staffmg and
scheduling required. Experience using Windows NT Workstation, MS Word/Outlook
required or willingness to take training.
3. Excellent communication skills and interpersonal skills dealing with both internal and
external clients,
[4.] Ability to work collaboratively with physicians and other allied health professionals in
a very dynamic work environment,
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5. Ability to multi-task and work with a minimum of supervision. Flexibility with
scheduling shifts to meet team needs required,
6. Suitable performance in present capacity, and
7. Excellent attendance record.
Following the initial posting process, the parties agreed to re-run the job competition, on September
15,2009, which competition was limited to the grievor and the incumbent. The grievor is a part-
time registration clerk and is more senior than is the incumbent. The incumbent was again awarded
the position and the Union contends the grievor ought to be awarded the job.
The grievor and the incumbent were interviewed by a 3-person panel, consisting of: Ms. Lyn Grant,
manager of patient information and supervisor of the registration clerk position; Ms. Jennifer Miller,
director of human resources, and Ms. Susan Ryan, a member of the bargaining unit.
The Interview consisted of thirteen questions, each dealing with a different area of "Competency".
Further, each question, save for No.1 0, has a pre-determined "Demonstrated Competency" statement
and a pre-determined "Rating" or score. (Appendix A is the grievor's Interview results. The
"Achieved" score is Ms. Grant's independent scoring and the scores to the right are the consensus
scores.)
Ms. Grant's evidence is that the questions were from the human resources department, and the
interviewers were to independently score the interviewees' responses and, then, meet the next day
to discuss the results and come to a final score. Ms. Grant independently gave the grievor a score
of47 of 70 (67.1%) and the incumbent 55 of70 (78.5%). Ms. Ryan scored the grievor 51 of70
(72.8%) and the incumbent 56 of70 (80%). Ms. Miller's evidence is that she did not independently
score the two individuals but, rather, as a result of the next-day discussions, scored the grievor 37
of70 (52.8%) and the incumbent 54 of70 (77.1 %). While Ms. Grant's Interview schedule indicates
she lowered her scores by 10, to 37 of 70, to match those of Ms. Miller, Ms. Ryan's schedule
indicates no change to her independent scores.
Ms. Grant said the final marks for the grievor's and the incumbent's Interview questions resulted
when the three interviewers "went through [the questions], discussed [their] answers, and, how we
felt their skills were." She said the scores were reached "by three individuals and collectively."
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Also, immediately after the interview, the grievor and the incumbent were given a written "Meditech
Test", consisting of 40 questions, all of which deal with the work performed by a registration clerk.
A maximum of20 minutes was allotted to complete the test. The grievor scored 19 or 40 (47.5%)
and the incumbent 29 of 40 (72.5%). Ms. Ryan devised the written test and Ms. Grant reviewed it.
Ms. Grant said she told the grievor, "You have twenty minutes to complete the written test."
Ms. Grant said the grievor had mentioned, in her de-briefing session, that she had done poorly on
the written test" 'because of my disability'. I said what disability? She said, 'Dyslexia'. I said, Oh,
sorry." Ms. Grant said this was the first time she had heard mention of the grievor's dyslexia, and,
that she had not said anything about previous tests done by the grievor. Ms. Grant said that had she
known of the grievor's condition, "We would have" lengthened the time period for the test. Ms.
Grant said she did not receive a copy of the grievor's "Job Performance Review". She
acknowledged she had sent an e-mail to the grievor, dated May 14, 2009, requesting her to complete
it and return to her by May 29,2009; "I'm just saying I did not receive it." A subsequent search of
the computer files for performance reviews could not be performed because, apparently, they are not
kept by the Employer.
In regard to the discrepancy between her final score of 37 of 70 and Ms. Ryan's score of 51 of 70,
Ms. Grant said, "Once we discussed it, we put the scores on the sheet", that is, the three interviewers
used her score sheets to record the final scores for both the grievor and the incumbent. All three
interviewers agreed on the final scores; "This is how all interviews have been done."
In cross-examination, Ms. Grant agreed that some of her scores for the grievor and the incumbent
changed as a result of the discussion among the three interviewers; "we went over it all. Sometimes
I missed something they got or I got something they missed." She did not know if the other two
interviewers changed their scores. She said the grievor's answer to Question # 1 was wrong because
"You'd speak more to the position", and that if she had only said she wanted the job because she
would earn more money, she would get no points; "I'd take it you're not really interested in the
position." The maximum 4 points would be awarded if the candidate gave all the responses to the
"Demonstrated Competency" statement. She said a candidate would "not necessarily" get 0 for 5
for Question #4 if she said she could not really recall a mistake; "I'd never really run into that
situation. I honestly can't answer." Her original mark of 5 for the grievor was changed to a 3 "after
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collectively" discussing her responses, "because when I went over my notes, [the grievor] had said
she'd call co-workers at home."
Ms. Grant agreed there is no "Demonstrated Competency" statement for Question # 1 0 and was "not
sure" why that was the case, but agreed "perhaps" because there was no right answer to it. She said
the grievor did not get a perfect score because the grievor "said her co-workers didn't know her."
When asked how it makes the griever a better registration clerk if her co-workers knew her, Ms.
Grant said, "I don't lmow". As concerns Question #12, Ms. Grant disagreed that if the candidate
could not think of ways of improvement in previous jobs he or she would score 0 of 5. "It would
go back to the interview. . . If somebody said 'I don't lmow' to every question, that would be
something... It all depends how the interview was on all the issues." Ms. Grant said the griever
scored 1 of 5 because, in effect, her answer indicated she was taking credit for changes that were
already in place.
As concerns the written test, Ms. Grant agreed that the 20-minute time limit was set "because you
should be able to do it in [that amount of time]." That decision was made by her and Ms. Ryan "and
based on past history; [it was] given before", however, not for the same test given to the grievor and
the incumbent. She agreed she and Ms. Ryan could have picked any amount of time for the test.
Ms. Jennifer Miller, director of human resources, did not independently score the grievor's and
incumbent's interview, but based her scores on the discussion the three interviewers had on the
following day or so. Ms. Miller said Question #1 intends to "demonstrate the interest in the position,
a certain level of commitment, career path potential. Typically, we look at any position in that
manner." She said Question #4 is "really important, the technical importance of the position. In
registration, accuracy is essential. Where incorrect, it can triclde through the coding process. So
error free is important, [as is] the ability to recognize an error and take preventive action and prevent
it from happening again." She said if an interviewee could not remember having made a mistake,
that would "concern me tremendously, because we all make mistakes. This is a generic question...
[It] reflects on one's self and aclmowledges verbally that you have had that experience and did
something. . . to correct it." Question # 1 0, "to some degree speaks to teamwork ability and ability
to fit in. We look for personal skills, ability to work seamlessly in a department and to complement
the people there." As concerns Question #12, she identified it as a "generic" interview question; "we
need to know ,if [the candidate] is committed to constant improvement, change is inherent... You
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like to think the whole team will contribute." Because Ms. Grant told her the improvements the
grievor had identified as her work were already in place, the grievor's claim of having done that
work, "is taboo. It tremendously concerned me."
In regard to comparison with the grievor, Ms. Miller said the incumbent had "high volume
experience in a big hospital [as a registration clerk]. She has a medical terminology background, far
superior qualifications. She could hit the ground running." The incumbent has some 7 or 8 years
experience as a hospital registration clerk garnered some 13 years ago and, additionally, 2 years of
nursing training.
In cross-examination, Ms. Miller said she was not aware that at the time of the posting the grievor
had more time working in registration for the Employer than did the incumbent. (In that respect, the
grievor had worked as a part-time registration clerk for some 200 hours from 2003 to 2006. In 2007,
the grievor had worked for 6 weeks, part-time, as a registration clerk. While the incumbent's hours
could not be verified, the parties agreed she has less seniority than does the grievor.) As to the
currency of the incumbent's prior registration clerk experience, Ms. Miller's evidence is that those
years of experience put her "absolutely" above the grievor in terms of skills, "regardless of in which
hospital and how long ago." She did not agree that registration technology is so different than from
13 year ago as to invalidate the incumbent's experience; "various hospitals are at different stages of
technology."
As to the interview scores for the grievor and the incumbent, Ms. Miller said she always leaves those
blank, "Because I want a full discussion," and that she did not instruct the other two interviewers to
independently mark scores; "it's entirely up to the individual as to what they want to do." Ms.
Miller's evidence is that in arriving at the interviewees' final scores, the three interviewers had, "a
rigorous discussion" of each question's answer. She decided on her scores "after the initial
discussions." Her scores match the final scores for the grievor and the incumbent. "We had a
discussion to the point where we all agreed. . . . The discussion is to bring everybody to consensus."
As concerns Question #1, Ms. Miller said that if an interviewee said she wanted the position only
for the money it paid, "You get one mark for honesty. If money is the only motivation, you're not
likely to be reliable, committed." She disagreed the position in issue was that of rote, repetitive
work; "it requires accuracy, knowledge, experience." Interviewees were not told what each question
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was worth for scoring purposes. An interviewee "may" get zero marks if he or she could not
remember a past mistake; "but even a simple mistake qualifies." If there is no recollection of a
mistake, "That indicates not recognizing mistakes or [being] a perfectionist. I'd be concerned that
you're not aware of your own capability. . . The point is that you can recognize the behaviour, its
adverse impact and know enough to take corrective action."
Ms. Miller said there is no "Demonstrated Competency" statements for Question #10, a question
taken from "the archives", because "there are all sorts of potential answers." When asked how a
interviewee could not get a perfect score in regard to the grievor's response, Ms. Miller said, "If you
don't know what your co-workers think of you, maybe you don't know what a team member is or
how to perceive how to fit into a team. . . . I think you should have a sense of how you fit in." She
has no personal knowledge of what the grievor had done that would not make her a team member;
"that's why we rely on [the Interview schedule in the instant case]. Your job is to [sell yourself]."
As to why no reliance was put on the grievor's some 5 or 6 years of experience as a part-time
registration clerk, Ms. Miller said, "Maybe these are different managers, different organization, it
may not be [useful] information." She said the grievor's answer to Question # 10 was "decent", and
that "technical issues [for the position] are not the be all and end all."
In regard to Question #12, Ms. Miller said if an interviewee could not recall making an
improvement, he or she would get 0 points; "Nowadays, with behavioural interviewing, it's very
reliant on how you fit in to do the job." She agreed that, concerning Question #13, an interviewee's
score "depends on the interview structure. To be honest, people give there all . . . . If all applicants
only give two answers, five seems unreasonable, so you settle on two answers [as meriting full
points]."
In re-examination, Ms. Miller said the "Demonstrated Competency" statements for Question # 12 are
"guidelines only." As to not having consulted the grievor's work history, Ms. Miller agreed Ms.
Grant was her supervisor at the time of her interview.
Ms. Lynda Hope has been a registration clerk for the Employer for some 10 years in the ambulatory
care/emergency area. She disagreed the job is one of just rote, repetitive date entry. "We have all
lands of people come in - supporting someone dying or a sick lad, a family member, or, yourself.
[The registration clerk] is one of the first people they see. You have to be an extremely
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compassionate person. Secondly, you're getting information from those upset people, if not correctly
collected. . . . It needs to be correct. . . . Or the person may not speak English, is upset. . . . It's a
very important job and requires a special person to do it. Someone who wants to put herself out for
that person. It's not just filing." If data is not properly entered, "It affects a lot of departments.
When it's crazy busy, you need to rely on your partner. It is not an individual job, it's a team job
[involving] nurses, lab technicians, patients, co-workers. To say it's just data entry sells the job
short. "
The grievor was first employed as a switch-board operator in 2003 and became a part-time
registration clerk in June, 2006. While working as a switch-board operator she would also relieve
registration clerks while the latter were on their breaks. On night shift, switch board operators
perform registration clerk duties.
The grievor said that after her interview, Ms. Miller left and Ms. Grant gave her the written test
questionnaire and said, "[The incumbent] took twenty minutes and that's how long you have."
When told of the time limit, "I was lost, anxiety set in. I started to panic - to have to read and
comprehend the questions in that time frame . . .' I have dyslexia and it takes more time to get
through a test. Adding a time frame just made a mess." The grievor's evidence is that from the time
she was first interviewed for the switch-board operator position in 2003, she has indicated she has
dyslexia. In the workplace, "I've talked about it. When I've made errors, I've been open about it,
I do not hide it." In her May, 2009 performance review, which she said she send bye-mail and hard
copy to Ms. Grant, in one section of it the grievor states, "Dyslexia is an ongoing learning tool,
always room for developing new learning tools, slalls" in regard to "Development Needs". The
grievor said that in her de-briefing session with Ms. Grant following the selection process, "I was
told I'd done poorly on my test. I said that didn't surprise me with my disability. Ms. Grant said,
'What disability?' I said, dyslexia. Ms. Grant asked, 'Did anyone know?' I said, I've never hidden
it and had stated it since my first interview. Ms. Grant said, 'But you seemed to have done well on
your past tests'. I said I've never done one for [the Employer] until now." .
The grievor's evidence is that with dyslexia in a testing event, "Reading and comprehension is very
different. . . . words can fall off the page. I need time to re-read. [It should be] open to aslang for
more clarification if needed. The spelling aspect puts more stress, the issue is getting the spelling
correct. Sometimes what's in my head is different from what I put on the page." As to the 20-
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minutes time limit, it had "serious effect. I pretty much checked out at that point. I couldn't
concentrate on any of it [i.e., the test] . . . . I knew I had bombed the written portion." After she left
the test area, "I called Ms. Love, told her I had only twenty minutes, had bombed it." As to what she
told Ms. Love regarding the time limit, "I said it was said [the incumbent] had taken only twenty
minutes, so I had only twenty minutes." As to whether or not she would have performed better in
the test if she had more time, the grievor said, "Ifthere is no time-limit pressure, I would have been
more focused." When asked if she had told anyone about the effect of a time-limit for the test, the
grievor said, "I was under the understanding that everyone was aware. I've never hidden it [i.e., her
dyslexia]." The grievor has never received any written discipline. In regard to her answer to
Question #12, the grievor said, "There's already a master book at switch board. I went through it
and updated it and added extra sheets. They had a physician's on-call sheet we hand wrote. I went
into Excel, added all the doctors, nurses, technicians, and cut and paste so you could get off a neat
and tidy list for everyone by printing it off."
In cross-examination, the grievor said she made no mention of her test concerns to Ms. Grant before
Ms. Grant left the room, or, to Ms. Ryan who invigilated. She said nothing to Ms. Ryan "a co-
worker, I did not want to be confrontational." When asked why she had made no mention of the
reason for her poor test results to anyone in management that day, the grievor said, "There was not
a reason to start an argument." She sent her performance review to Ms. Grant by e-mail, and, by
hard copy. She has had problems in the past when taking tests due to her dyslexia. She knew
beforehand that the competition in issue involved a test; "I had no problem with taldng the test. I
had a problem with the time-line pressure." She agreed the first time she had mentioned her test-
taldng problem to the Employer was after she lmew her test results. She said, "I didn't", when asked
why she had made no mention of her concern to Ms. Grant before Ms. Grant left the room.
The grievor agreed with Ms. Hope's description of the registration clerk position, that it can be very
busy and with a lot of pressure on the clerk, from time-to-time. As to her response to Question # 12,
she agreed that when information in the master book changes, a note would be placed in it. In
updating the master book, she agreed it was part of her function and added, "The templates I did, not
just the updates. We were handwriting on sheets. I went into Excel and [put all the information] on
one template, so you can cut and paste." She could not say how the interviewers had a different
impression of what she had answered in the interview.
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Ms. Dale Love is an X-ray technician and is the Union Local president. She said that on the day of
her interview, the grievor called her and was "upset because she had just finished testing and said
she blew it. I asked why and she said she was told [the incumbent] had been given twenty minutes,
therefore, she had twenty minutes. She knew she couldn't do it. . . . that she was kind oflost, knew
she blew the test and was really upset." Ms. Love knew ofthe grievor's dyslexia, "She said because
of her problem, the twenty minutes were a problem." Ms. Love was first made aware of the
grievor's dyslexia just prior to the original first day of hearing of her grievance, scheduled for July
21,2009. "I talked with her about her notes. She said she had to write things down because of her
dyslexia. "
In cross-examination, Ms. Love said that her relationship with the grievor is that of a workplace
acquaintance and knew of her because, "I've done grievances with her. I lmow her because I talk
with everyone at work."
The Employer argued that the incumbent scored demonstrably higher on the written test than did the
grievor. It is insufficient for the grievor to simply assert that she has dyslexia and that her condition
caused her to fail the written test. Moreover, even if the Employer had a duty to accommodate the
grievor as a result of her condition, it had no knowledge of it. In that regard, the grievor made no
mention of her condition or its effect on her ability to do the written test within the prescribed time-
limit to either Ms. Grant or Ms. Ryan on the occasion of taking the test. Rather, she never said
anything to the Employer about her condition until after she found out she did not do well on it. That
she called the Local Union president after taking the test and informing her she did not do well on
it is not proof of anything. Further, there was no request from the grievor to re-do the test, in any
fashion, so as to accommodate her dyslexia.
In regard to the Interview results, the Employer submitted they demonstrate, clearly, a wide gap
between the grievor's and the incumbent scores. Further, if it is found that questions 1,4, 10, 12
and 13 are not relevant to the registration clerk position, their removal sti11leaves the incumbent with
a substantially higher score than that of the grievor.
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The Employer submitted that these results, along with the incumbent's 8 or 9 years experience as
a registration clerk acquired some 13 years ago, and, her education support its conclusion to award
her the full-time registration clerk position.
The Union submitted it must be borne in mind that the job in question is that of a clerk, albeit a vital
role in the workplace, and involves the repetitive inputting of information. In that regard, the written
test is all about how to input data into a computerized system, and it does not take years and years
of experience to learn the requirements ofthe positIon. Neither the grievor nor the incumbent will
be performing work in the full-time position they are not performing in their part-time positions. As
to the incumbent's prior experience, given it was obtained some 13 years ago, the technology is not
the same today as it was then, and, every hospital develops its own way of using computerized
systems. As to the grievor's low score on the written test, there is no evidence to support a 20-
minute time limit as reasonable, rather it was an arbitrary limit set on the grievor simply because the
incumbent completed her test in that time period. When the stress imposed on the grievor by the
time limit is added to her dyslexia, one has "a clear recipe for disaster". The Employer, it was said,
did have forelmowledge of the grievor's dyslexia and, in any event, there is no stop clock when
inputting date, rather, it must be done accurately. Further, some people are better at taking tests than
others, and basing a decision to award someone or not a posted job on a test is not the best way to
fill a position. In any event, both the grievor and the incumbent have been performing the work
described in the written tests for years, on a daily basis. Thus, there was no need for a written test,
rather, all the Employer had to do was review their work histories to ascertain how well they would
do the job in issue.
In regard to the Interview questions, the Union argued that, concerning question #1, if a person
responded that they wanted to make more money, a legitimate answer, he or she would get zero
points and the sought for "Demonstrated Competency" statements cannot be viewed as a proper
assessment of ability in the registration clerk position. Question # 12 asks the interviewee to provide
something from one's subjective history and their own thought processes and recollections. To
suggest that the grievor lied about her accomplishments makes no sense. Question #1 0 is not proper,
and there are no "Demonstrated Competency" statements, quite probably so because it asks the
individual to "get inside co-worker's minds". Question #12 has nothing to do with being a
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registration clerk. There can be no wrong answer to Question # 13, since it asks about the
individual's view of their own skills.
The Union submitted that the manner in which the Employer scored the grievor's interview was not
in accord with its own system of independent scoring, in that Ms. Miller did not independently score
the grievor and the incumbent. Rather, Ms. Miller viewed her task as convincing Ms. Grant and Ms.
Ryan to arrive with her at one common mark, which is the wrong way to score individuals in this
case, in that scores result from the "strongest voice" and not from individual interviewer's
assessments. The Union noted that while the grievor's scores were changed 11 of 13 times as a
result of Ms. Miller's intervention, only 3 of 13 marks were changed for the incumbent. In short,
the Interview process did nothing to assist in determining the best candidate for the position; the only
valid question for that job is Question #2. Moreover, Ms. Miller's evidence is that the questions
were found in past files and these sorts of generic questions are not consistent with an interview for
a registration clerk position.
The Union submitted that the above identified flaws in the competition process negates its utility for
deciding whether or not the grievor ought to be awarded the position. Rather, because the grievor
is more senior than is the incumbent and has been performing the registration clerk job for years in
a part-time capacity, she ought to be awarded the position. In the alternative, a second re-run ought
to be awarded.
In support of its position on the merits of the grievance, the Union submitted Re Assn. of
Management, Administrative and Professional Crown Employees v. Ontario (Ministry of Children
and Youth Services) (Alderson Grievance) (July 4,2008), unreported version (Dissanayake), and,
Re Harc Incorporated and o.P.s.E. U, Local 235 (July 2,2008), unreported version (Marcotte).
In reply, the Employer argued that it did not rely heavily on the incumbent's past experience but,
rather, relied heavily on the Interview and test results. The interview questions were crafted to the
registration clerk position. In regard to the grievor's improper claims in Question #12, that only
resulted in a bad mark and not in the decision not to give her the job. As to Question #10, both the
grievor and the incumbent received the same mark. The grievor never indicated that 20 minutes was
not sufficient time for her to complete the written test. Time is important for the position in issue,
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as is the grievor's own evidence as to how busy the job is and having to deal with different situations
where there is pressure on her. The Employer does not say the grievor does not have dyslexia, only
that it is unlmown if it caused her problems when taldng the test, in that there is no evidence of a
causal connection. Because someone has a bad day when taldng a test is no reason to re-run a
competition. If the selection process is found to be fatally flawed, a new process ought to be
awarded.
Subsequent to the conclusion ofthe hearing on December 4,2009, a conference call on January 27,
2010 dealt with the parties' submissions on evidence acquired by the Union shortly after the
conclusion ofthe hearing. There was no objection to the admissibility ofthe after-acquired evidence.
The evidence indicates that during the hearing on December 4, 2009, Ms. Miller was sent an e-mail
from a Mr. Deslauriers in the Employer's Information Technology department, which confirmed the
grievor had, indeed, sent her performance evaluation bye-mail toMs. Grant on May 29, 2009. It
is accepted that Ms. Miller did not clearly communicate the information in Mr. Deslauriers' e-mail
to Employer counsel during the hearing.
The Union argued that the after-acquired evidence supports the credibility ofthe grievor's evidence,
Le., that she had made her Employer aware of her dyslexia prior to the September, 2009 selection
process. Conversely, the after-acquired evidence militates against the credibility of Ms. Grant's
testimony, i.e., that she did not receive the grievor's performance evaluation in May, 2009. The
Union submitted that, in the result, I ought to prefer the grievor' s evidence where it is in conflict with
the evidence of Ms. Grant. The Union also argued that the Employer, in not properly or clearly
revealing the content of Mr. Deslauriers' December 4,2009 e-mail to Ms. Miller, "comes with dirty
hands" to the hearing, and such "outrageous behaviour" evinces an inability on the part of the
Employer to fairly re-run the job competition process. Rather, should the matter of remedy arise,
the grievor ought to be awarded the position in issue.
The Employer argued that, while the after-acquired evidence does change that part of the case
concerning the transmission of the grievor's performance evaluation to the Employer, it remains
there is no evidence in support ofthe grievor's assertion that she has dyslexia. Moreover, it is "too
much of a stretch" to reach the conclusions as to credibility sought by the Union on the basis of the
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after-acquired evidence, or, to support its contention that are-run of the competition would not be
fairly conducted by the Employer.
The issue to be determined in this award is whether or not the Employer improperly failed to award
the posted position of full-time registration clerk to the grievor. I find the merits of the grievance,
on the evidence and submissions before me, require determination of whether or not the Employer
improperly assessed the "skill, ability, experience, and relevant qualifications" of the grievor
pursuant to art. 15.06 of the collective agreement. In Re Harc Incorporated, supra, an appropriate
scope of arbitral review of the Employer's decision not to award the position to the grievor is
addressed at pp. 20-1, as follows:
.. . in Brown and Beatty, Canadian Labour Arbitration, 4th ed. (Aurora, Ont.: Canada Law
Book, Inc.), the authors state. . .:
"As a general rule, arbitrators have been reluctant to interfere with managerial decisions of
this kind unless there is evidence of arbitrariness, 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. . . the issue is not viewed as whether the grievor in fact possesses
the requisite slall and ability but, rather, whether the employer's decision as to those matters
was reasonable in the circumstances.
"In applying a standard of reasonableness, arbitrators have generally perceived their review
to comprise two parts. Initially, the arbitrator must make some determination as to the
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 applicants. Having made that determination, the arbitrator must
then assess the manner in which the employer applied those standards to each of the
applicants. "
In applying the above scope of arbitral review to the matter before me, it is the Union position that
the selection process, Le., standards, or components utilized by the Employer to judge the grievor,
is flawed and, secondly, the manner in which the Employer applied those standards to the grievor
is flawed. In the instant case, the selection process consisted of two components: an interview and .
a written test. In the Ontario (Alderson) case, where the selection process also consisted of an
interview and test, arbitrator Dissanayake commented extensively on this type of selection process.
15
In Re Ontario (Alderson Grievance), supra, the union claimed the grievor had improperly not been
appointed to the position of Health Care Coordinator at a youth centre. Also, the union contended
that the incumbent "should have been screened out and that she should not have proceeded to the
interview stage" (para 11). The selection process consisted of a scored interview, a scored test and,
additionally, interviewees were allotted scores for" 'communications slalls/presentation' based on
their performance at the interview", with the result that the incumbent's overall score of 88% was
21 % higher than the grievor's score of 67% (para. 9). The decision to award the job to the
incumbent, an external candidate, rather than to the grievor, an internal candidate, was "based on the
foregoing scores" (para. 9). Further, while the incumbent's references were checked, the grievor's
were not, nor were her personnel files (para. 9). Relevant for our purposes, arbitrator Dissanayake
concluded that the employer had improperly relied solely on the interview/testing scores in making
its decision, at para. 35:
I find that there was no attempt to assess past work experience and performance in any
manner, and that the interview and test questions did not permit such an assessment. Even
if it did, it is not sufficient to consider the candidates' experience and work performance
through the answers provided during a brief interview/testing process, when much more
extensive and reliable information is available by way of reference checks and a review of
performance evaluations and personnel files.
As concerns the above-reference to "more extensive and reliable information available", arbitrator
Dissanayake concurred with the following, cited at para. 38, Re British Columbia Workers'
Compensation Board and Workers' Compensation Board Employees Union, (1989) 4 L.A.C. (4th)
141 (Hope) p. 159:
"It was quite clear on the evidence that the interview process suffers all of the vulnerability
inherent in a first impressions approach. In this case the panel formed their entire impression
of each applicant in a one-hour interview. What that process ignored in this dispute was the
accumulated experience of a thirteen-year employee with eight years of experience in the
job."
Further, arbitrator Dissanayake agreed in the view that sole reliance on an interview process to
assess an employee's qualification in ajob competition is not appropriate - expressed in Re Fairview
Home Inc. and Fairview Nurses MNU, Loc. 21, [1991) MG.A.D. No. 68 (Cherniak), cited in Re
University of Toronto, (1995) 52 L.A.C. (4th) 387 (Burkett), as follows:
"Interviews cannot and should not be used however as a complete method of assessment.
The ability to conduct oneself during an interview is only one facet of an employee's
16
abilities, and often is not a particularly significant or relevant facet. So much depends
unfortunately, on the ability of the interviewer to go beyond the surface impressions in the
artificial atmosphere of an interview and probe deeply into the applicant's vision and
Imowledge."
Rather, as stated by arbitrator Devlin in Re Greater Niagara General Hospital and o.NA. (Robb)
(1997),60 L.A.C. (4th) 298, cited at para. 43, interview and test scores, if used, ought to form part
of a more complete assessment:
In any event . . . there are a number of awards in which it has been held that it is
inappropriate for an employer to rely solely on test scores or interview results. Instead, it has
been determined that a balanced assessment requires consideration of all relevant factors,
, including test and interview results, on-the-j ob performance, related courses and performance
appraisals . . .
Moreover, where an employer relies unduly upon interview performance, such reliance is said to
create a fatal flaw in the selection process Re Sudbury Regional Hospital, [2003] a.L.A.A. No. 531
(R.M. Brown) cited at para. 44 by arbitrator Dissanayake:
"In recent years, many arbitrators have held that undue reliance on an employee's interview
performance created a fatal flaw in the selection process. In such cases, excessive emphasis
on the interview has often come at the expense of a more balanced consideration of other
relevant factors, including work history, past training, performance appraisals, comments of
supervisors and co-workers, and test scores. The risk of placing too much reliance on an
interview is especially acute where the Grievor has had significant work experience in the
employer's establishment, since this is likely to offer a more dependable prognosis of future
performance than the ability to communicate at an interview."
As can be seen from the above, reliance on an interview and test, where there exists other sources
of information that can be used to judge or assess an applicant such as actual work experience in the
position and performance evaluations, is not viewed as a proper "balanced assessment,"Re Greater
Niagara General Hospital, supra, para. 43, of that individual's "skill, ability, experience and
relevant qualifications" for a position under art. 15.06. That is, while interviews and tests are not
inappropriate selection process standards, per se, exclusive reliance on them where there exists other
sources of information which inform an applicant's capabilities to perform the duties of a posted
position is not view as reasonable. As stated in Re Fairview Home, Inc. supra, "The ability to
conduct oneself during an interview is only one facet of an employee's abilities", for reason that an
interview "suffers all of the vulnerability inherent in a first impressions approach" Re British
Columbia Workers' Compensation Board, supra, at p. 159.
17
In the instant case, while the interview was not the sole standard used by the Employer to assess the
grievor's capabilities, the inherent limitations of the interview as an assessment tool when used
without reference to the grievor's actual experience in the registration clerk position or performance
evaluations are not ameliorated by the use of a written test. In that regard, while No.6 in the job
posting requires assessment ofthe applicant's "Suitable performance in present capacity", there was
no such assessment of the grievor's performance of the work of a registration clerk in her present
part-time capacity by the Employer. I find it is the Employer's failure to use such other standards
that would serve to provide a balance assessment of the grievor that is unreasonable for purposes of
assessing the grievor's capabilities for the position in issue. I find, therefore, that the selection
process used by the Employer in the instant case was flawed for the above reasons.
In regard to whether or not the manner in which the Employer applied its standards to the grievor
was flawed, in Re Hare Incorporated, supra, the union claimed the employer's selection process,
which denied the grievors a posted full-time position and who worked part-time in the same position
as posted, was flawed, thereby, vitiating its decision to award the position to the incumbent. The
union argued the employer had utilized a flawed interview schedule and a flawed scoring scheme.
At p. 23, the arbitrator addressed the matter of interview questions that are scored, as follows:
. . .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" . . .
It was found that some of the interview questions were flawed, at p. 23:
. . . the response to the first three Questions is solely dependent upon an applicant's
interpretation of what constitutes the situation [raised in each question]. Therefore, as long
as the applicant provides a response to each of the three directional questions [in each
question] he or she will have fully responded to the Questions (assuming the situation he or
she describes 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 I job due to a lack of a fixed objective standard in the Questions themselves.
In regard to the scoring scheme in the Hare case, it was found that it "reflects subjective and not
objective fixed standards. This is necessarily so due to the lack of fixed standards in the Questions
themselves." (p. 23). Moreover, the scoring scheme was flawed due to "the interviewer's subject
[sic] view of what constitutes a 'fully described' situation." (pp. 23-4). Also, a Question that asked
18
the interviewee to describe what his or her co-workers' views were ofthe interviewee was found not
to meet an objective, fixed standard: ".. . it asks the applicant to lmow the minds of his or her co-
workers, an inherently difficult, ifnot impossible task." (p. 24).
In the instant case, Questions 1 and 10, similar to scored interview questions in the Hare case are
subjective in nature in that the response is solely dependent upon an applicant's personal view or
perception. Thus, there is no objective standard against which the response can be scored. Rather,
the score was based solely on the interviewers' subjective view, which is not an appropriate measure
in that it lacks objectivity, Re Hare, supra, at p. 22, citing Re Inglis Ltd and Us. w., Loe. 4487
(1979),22 L.A.C. (2d) 175, at 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 evidence to determine whether a senior employee 'has the ability to perform the
work' . . ."
That is, where interview questions are treated as a test in that the answers are scored, "the questions
themselves must provide for objective evidence of an applicant's ability to do the job and, second,
the scoring must be done against an objective standard, i.e., " 'fixed and reasonable' " Re Inglis Ltd
supra, (p. 185). Moreover, Question 10 is also flawed in that there is no indication of how the
interviewers even considered an applicant's response in light of "Demonstrated Competency".
In further regard to the scoring scheme, Ms. Grant's evidence is that the interviewers were to
independently score the applicants' responses and, then, the three of them were to discuss the
responses to arrive at a consensual mark. Aside from my uncertainty as to the validity of a scoring
scheme that negates the independent scores arrived at by the interviewers, Ms. Miller's evidence is
that she did not follow the prescribed scoring scheme. Rather, her scores are but reflective of the
consensual marks awarded to the grievor, that is, not based on the objective scores allotted to each
question but based on a consensual mark derived from the scores of the other two interviewers. I
find, therefore, that the scoring scheme used by the Employer was flawed for the above reasons.
In regard to the grievor's evidence that her dyslexia caused her to do poorly on the written test, there
is, firstly, no supporting evidence to establish a causal connection between her condition and the
effect she asserts it had on her. More significantly, the grievor has provided no reasonable
19
explanation for her failure to inform the interviewers that the 20-minute time limit for the test
"triggered", if you will, the dysfunctional consequences of her condition which she ascribes to the
time limit. In that regard, it is unknown how the Employer, if provided with a statement from the
grievor regarding the difficulty she faced when give a time limit, would have accommodated her
dyslexia. In any event, I note that while the registration clerk position was identified as requiring
accuracy in inputting patient data, the incumbent's score was 72.5% on that same written test, i.e.,
incorrect responses at a rate of roughly 3 out of 10.
Based on the foregoing, I find that the Employer's selection process and scoring scheme are flawed
in the instant case. Moreover, I find that these flaws are so fundamental as to render the decision not
to award the position to the grievor unreasonable. Having found that the selection process was
fundamentally flawed, the matter of remedy arises.
The grievor has twice been denied the full-time registration clerk position. The process used by the
Employer to rectify the first selection process has been found to be flawed. In these circumstances,
I am not confident that a re-run of the competition will achieve a fair assessment of the grievor's
capabilities to perform the work of the position. Rather, I note that art. 15.07 provides that ". . . a
successful bargaining unit applicant shall be allowed a trial period of up to sixty (60) days worked
during which the Corporation will determine ifthe employee can satisfactorily perform the job." In
the circumstances at hand, significant among those that the grievor has performed the job on a part-
time basis, by way of remedy, I direct that the grievor is to be provided with a sixty (60) working day
trial in the position at issue, at the end of which trial period, the Employer is to determine if the
grievor has satisfactorily performed the job. That determination, moreover, is to be based on
objective evidence of the grievor's capabilities as measured against the "Qualifications" identified
in the March 26, 2007 job posting.
The grievance, therefore, is allowed.
Dated at Toronto, this ~ay of MtULU1/
()
,2010.
UfiJA ~rrY} f) Ma1i'1tr
William A. Marcotte
Arbitrator
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