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HomeMy WebLinkAbout1978-0009.Quinn.79-12-139j7a .- IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD Before THE GRIESANCE SETTLEMENT BOARD Between: Mr. M. 6. Quinn (Griever) And Ministry'of Transportation & (Employer) Communications Before: Prof. J. R. S. Prichard Mr. G. Griffin Mr. K. Levak Fcr the Grievor: Mr. G. Richards Ontario Public Service Employees Union For the Employer: Mr. N. H. Pettifor Ministry of Transportation & Com!!unications Eearinq: -2- In this grievance the grievor, Mr. Melville G. Quinn, grieves " _ alleging the selection of the successful candidate in a job competition which he entered was unfafr and unjust and contrary to the collective agreement and that he, Mr. Quinn, should have been given the position. The job competition Number TC77-375 was a competition for the position _.~ : of Technician - Grade 3 (senior technician) in the Mixed Design Unit of the Concrete Division of the Materials and Laboratories Services Branch of the Ministry of Transportation and Communications. In presenting the case, counsel for the grievor argued that the procedures adopted and the'decision reached by the Mjnistry in this .. competition were contrary to the requirements of Article 4 of the collective agreement whfch deals with the posting and filling of vacancies or new posltions. The relevant provisions in the collective agreement are as follows: ARTICLE 4 - POSTING AN0 FILLING OF VACANCIES OR iWN POSI'I'IONS 4.1 when a vacancy 0ccu.s 01 a new position is created in the bargaining unit, it shall be advertised for at least five (51 mxkinq days prior to the established closing date when advertised within a Ministry, or it shall be advertised for at least ten (10) working days prior to the established closing date when advertised service-wide. All applications will be acknowledged. Where practicable, nptice of vacancies shall be posted on bulletin boards. 4.2 The notice of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required and the area in which the position exists. 4.3 In filling a vacancy , the employer shall give primary consideration to qualifications and ability to perform the required &ties. Vhere q2ualifica- tions and ability xe relatively equal, length of contin- cous service shall 3e a consideration. 4.4 An applicent who is invited to attend an internfew wit?& the civil. service ray be , i -3- granted time-off with no loss of pay and with no loss of credits to attend the interview. The position of senior technician in the concrete mix design . laboratory was advertised by posted notice in September, 1977 in accordance~with Article 4.1 of the collective agreement. The notice read as follows: SENIOR TECRNICIAN (CONCRETE) "~ Technician 3, Phy&al Laboratory $250.53 - $288.54 per week $13,072 - $15,056 per annum Highway Engineering Division Materials end Laboratory Services SeCtiOn Downsview J 1~ _ ,,I ‘\ To supervise, as a group leader, the testing carried out by junior personnel assigned to the concrete mix design laboratory. To provide training in testing techniques and use and a&of laboratory testing equipment and to ensure that good housekeeping is maintained. TO perform the standard tests as and when required by the exigencies .of the work load. WALIFICATIONS Normally at least three years' progressively responsible laboratory experience as a Technician 2, Physical Laboratory with Grade 12 education or an acceptable equivalent of education, training and experience. Detailed knowledge of and considerable experience in materials technology and physical testing. Keen powers of observation and analytical end leadership abilities. Pursuant to this notice the grievor, the successful xandidate and seven other candidates entered the competition for the position by filling out the recjuisite application forms. After an initial screening to determine whether or not the applicants possessed the minimum qualifications for the position, each candidate was invited to an interview. The interviews were conducted by three individuals: -4- Mr. T. Kovich, Manager of the Materials and Laboratories Services Branch, Mr. 8. Chojnacki, the engineer in charge of the Concrete Division and Mr. 6. Swaile, a representative from the Personnel Branch of the Ministry. At the interviews each candidate was asked six .. questions which were prepared in.advance by Mr. Kovich. The questions were as follows: QUESTIONS SENIOR TECRNICIAN (CONCRETEI) 1. What interests you about this particular job? 2. Wny do you feel you are suited for this position? 3. What d&you see as being the significant respmsibil- ities of a group leader? 4. What steps mold you t&e to train a technician newly assigned to you?. 5. Sow would you handle a request to run a "rush" sample? 6. What would you do when you are testing a specimen and the results appear to be seriously out-of-line? As each candidate was asked each question, the three interviewers scored each candidates answers and recorded the scores on their respec- tive rating forms (Exhibits 8. '9, and 10). In addition to scoring the candidates on each of the six specific questions, the rating forms also provided space for the interviewers' assessments of the candidates in eight other subjective categories including characteristics such as iittitude. confidence, overall impression and ability to comrunicate. At the completion of the nine interviews each interviewer collected and compared the overall results achieved by each candidate and the winning candidate, Mr. Cocking, was selected. Mr. Kovich ranked Mr. Cocking first and the grievor fifth. Mr. Chojnacki ranked Mr. Cocking \ -5- first and the grievor sixth. Mr. Swatle ranked Mr. Cocking first but did not develop a rank order for the remaining candidates. In ljght of these rankings, Mr. Cocking was selected for the job and the senior technician's position was awarded to Mr. Cocking, and it is this decision that is the subject matter of the grievance before us. Since the result of allowing the grievance would be to put Mr. Cocking's job in jeopardy, he was given notice of the hearing of the grievance and advised of his right to'be presetit at the hearing and to either speak on his own behalf or to have a representative speak for him. Mr. Cocking did appear at the hearing and- participated in it primarily by givingevidence on his own behalf but also by posing-one or two questions during cross-examination and by giving a very brief ' closing statement. The duties and responsibilities of a Technician - Grade~3 jn the Concrete Mix Design Laboratory was stated in the position specifications and class ,allocation form wh$ch was introduced at the hearing as Exhibit 4. The relevant portions of that exhibit read as follows: 50% Supervises the testing Carried out by assigned junior personnel by: - assuming responsibility for the temporary laboratory (located away from Head Office); - scheduling the daily work to meet quantity and priority requirementst - providing training in testing techniques and use and care of equipment; - assigning specific duties; - checking the performance of the work and providing guidance; - maintaining discipline: - preparing biweekly performance budget reports; - ordering materials and supplies; - ensuring equipment ac,curacy by a regular programw of calibration decks: - answering telephone queries frcn District Construction staff regarding test results: - ensuring that good housekeeping is mintained. 50%' Performs standard tests as and when required by work load variables. \ -6- From this job specification it can be seen that fifty percent of the position's responsibilities are devoted to doing technical tests as and when required by the work load. The other 50 percent of the respons- ibilities involved are of a supervisory nature supervising the testing carried out by junior personnel in the laboratory: In the mix design laboratory, there is a foreman to whom the senior technician reports. In turn, approxfmately five junior technicians at Grades 1 and 2 report to the senior technician. Therefore, the senior technician bears supervisory responsibility for these five junior technicians. Both Mr. Quinn and Mr; Cocking are experienced and skilled 2.. employees at the Branch. Mr. Quinn has thirteen years of service while Mr. Cocking has nine years. As a result, Mr. Quinn has the greater seniority and it is on this seniority that he relies in this grievance in which he seeks the proper application of Article 4.3 of the collective agreement. That article requires the employer to take into account the. seniority of the candidates if. but only~if, the qualifications and ability of the candidates to perform the required 'duties are relatively equal. The,~grievor'.s case is that his qualifi- cations and ability.are relatively equal to those of Mr. Cocking and therefore that he,should have been awarded the senior 'technician's position. In response. both the Ministry and Mr. Cocking on his own behalf argue that Mr. Cocking's qualifications and ability are superior to those of the grievor and thus that seniority should not be a consider- ation in determining the successful candidate. At the outset of the hearing, counsel for the grievor and the Ministry agreed the hoard should in considering this grievance limit itself to a consideration of whether or not the requirements of Article 4.3 of the collective agreementhad been breached in the conduct of this competition; The parties requested that if the Board were to conclude that the requirements of Article 4.3 had not been met, then the Board should direct the parties to do their best to settle this matter in a manner acceptable to the grievor, the Ministry and Mr. Cocking. However, the parties asked that the Board remain seized of the matter in the event that the parties are unable to reach agree- ment, thus providing the opportunity to seek further directions or rul'ings from the Board. In approazhing the application of Article 4.3 to the facts of this grievance, we recognize that ultimately the function of the Board is to determine with the appropriate standard of review whether or not the grievor has demonstrated that his qualifications and ability to perform the required duties are relatively equal to those of the other candidates and thus that his seniority should have been taken into consideration. This Board has on a number of occasions and most recently in R.S ~emrk (149/i'z) conanented on the Board's function in this regard and on the proper meaning of Article 4.3. Counsel for the union expressed his reliance on the statement of the Board's jurisbrudence in ne ReUk and counsel for the Ministry, whi,le not relying on it, was not in a posi- tion to disagree with it. We too are of the view that it properly interprets the requirements,of Article 4.3 and we intend to follow it. While we accept this interpretation of Article 4.3, it is important td emphasize that in meeting the obligations under that article the employer must employ a process of decision-making designed to consider the relative qualifications and ability of the candi'date in a competition which will ensure that sufficient relevant information is adduced before the decision-makers in order that they may make their ccrparisons in the confidence that they are able to thoroughly and -a- applicants. Similarly. before this Board is able to review any result of a job competition. it must also be provided with this requisite '. background information collected in a systematic and comprehensive manner so as to provide the Board with a sufficient factual basis on which to make the comparison demanded by Article 4.3. After a consideration of all the evidence which was adduced at the hearing, we.have concluded that the selection consaittee was not sufficiently well informed at the time it made its decision so as to be able to make a fair comparison of the relative and relevant qualifications a:d abilities of the grievor and Mr. Cocking. In the result, we have concluded that the selection committee's decision cannot stand. However, we have also concluded that this Board was also not provided with sufficient factual information in order to allow us to reach the decision required by Article 4.3 and to thereby sub- stitute our judgment for that of the selection committee. We are constrained by &me of the same deficiencies of information that have forced us to conclude that the selection committee's decision cannot stand. Therefore, it would be unwise and improper for us to make a judgment on information which we have concluded.was insufficent for the selection consnittee to make its judgment. Therefore, in the result, we have concluded that at this stage we are not in a position to either allow or dismiss the grievance. Rather we plan to afford the parties an opportunity to discuss the matter in the light of this preliminary decision to attempt to resolve their differences in a manner satisfactory to the Ministry. the grievor and Nr. Cocking. Failing such agreement, this hearing will be re-convened on or about November 30, 1979 at which time WL will hear full evidence as t0 i . \ -9- the qualifications of the two candidates and will attempt to substitute our judgment for that of the selection committee. However, we wfsh to state in strong terms that we would prefer to defer to a solution in this matter which has been reached by the parties by whatever processes they find appropriate since it is our belief that the Board's judgment in this matter should only be substituted for that of the normal processes in the workplace as a matter of last resort. We must emphasize that on reaching this interim decision we are making ~no decision as to the respective qualifications and abilities.of the grievor and Mr. Cocking. The hearing process provided us with'.only limited information about each of the men and all'we were ableto conclude was that each is a senior, talented and dedicated employee of the Ministry. Therefore, our decison should fin no way be interpreted as disagreeing with the selection committee's substantive conclusion nor as confirming its conclusion. The selection connnittee may or may not have reached the right result. The difficulty facing the Board is that on .the evidence before us to date we are not in a position to decide the matter. Furthermore, it.fs our decision that the selection cohittee itself was not in a ,position at the time it made its decision to make that decision fairly on the basis of a sufficient factual record about each of the candidates. There were a number of defects in the process by which the selection comnittee made its decision in'the job competition, and it is these defects which we wish to identify in order to assist the parties 'in designing and evaluating.competitions in ~the future. As was stated ?n .+z.~arl;, it is well accepted that "in consider2nq ~cali"caticns ant! ebilities of job applicants, the employer rxst rot act xSitrerily, - - 10 - discriminately or in bad faith. Nor should he act unreasonably, either in establishing requisite qualifications for the job nor in applying them to the applicants". In order to fulfill these obligatfons, the employer must design and utilize a selection process in job competftions that is consistent with the purposes of the selection process. Thus, ..: under this collective agreement, the.process must be designed to elicit in a systematic manner sufficiently comprehensive information about each applicant relevant to the qualifications and ability required to perform the job in order that a fair and reasonable assess- ment of the relative strengths of the candidates can be undertaken and the final selection made. The process used in this case failed to.meet the test. Ironically, the process used by the Ministry appears.to be an attempt to respond to previous expressed arbitral concerns about the fairness of selectiori~~processes. The Ministry used an identical set of questions for each interview, used a common score sheet for evaluating the candidates in the interviews and each interviewer scored each candidate independently. Thus, the process was given the appearance of fairness and ,,. adequacy. However, despite these positive dspects, sufficient defects remained in the process that its result cannot stand. A difficulty facing the Ministry in making a fair selectiondecision in this case was the apparent absence at the time of the decision of any 3 systematic employee evaluation programme. While we understand from counsel's comments that steps have since bee,n taken to implement a regular system Of employee work performance appraisal, the absence of such a system predating the selection process substantially increased the need to be absolutely certain that the evaluation of the candidates in the process eras 2s - 11 - \ complete as possible. Where regular assessments are made and recorded, the results of these assessments can constftute an r'mportant aird reliable source of information for the decfsfon-makers on the- relative skills and ability of the candidates. In such cfrcumstances. a somewhat less compiehensive evaluation of the candidates during the actual selection process may be acceptable as this prior body of information could be relied upon in part.. However, in the absence of s&h prior information, the selection process itself must be relied upon as the exclusive source of~information and it must consequently be more thorough. The first defect in the selection process was that only one of the three interviewers read the personnel files of the candidates. Mr. Kovich read all the files,Hhile Mr. Chojnacki and.Mr. Swaile read.none of them. Mr. Swaile knew virtually nothing of the candidates before the interviews. Not all of the candidates had worked for Mr. Chojnacki but he still failed to review all of the files. Thus, only one of the three interviewers reviewed the only available source of historical information about the candidates. Regard'iess of how insufficient the information fn these files may have been, a fair selec- tion process would require a review of the contents if the interviewers are to be in a position to evaluate the job performances of the various candidates. The second defect in the process was that the interviewer did not ask the supervisors of the candi,,dates to provide evaluations of the candidates' work performance. Mr. Ron-Hawthorne, the acting foreman in the Preparation Lab, testified that he was never asked to evaluate Mr. Quinn even though Mr. Quinn had worked for him in an acting capacity as a-Grade 3 - Technician, the~very job that was being competed for. Similarly, Mr. Mike Noga, the Supervisor in the Bituminous Lab, testified that.while he had supervised both Yr. Quinn and Mr. Cocking at different times, he was never asked for his evaluation of them by any member of the selection committee as part \ - 12 - of the selection process. Furthermore, Mr. Cocking in his own evidence spoke of a mutual supervisor of Mr. Quinn and Mr. Cocking but the Ministry gave no evidence that this man's opinion was solicited as to the relative strengths of the candidates. In the result, the selection connnittee failed to solicit crucial evidence about the candidates as to how they had performed in previous positions, posi- tions which in some cases involved responsibilities very similar to those in the position at stake in the competition. The third defect is related ~to the first two. While 50% of the job specification refers to performing tests as and when requjred by work load variables, no systematic information was gathered as to the relative abilities of the candidates to perform these tests, whether from supervisors or from wri.tten evaluations. Thus, with regard to one-half the job requirements, essentially no information was gathered for purposes.of the selection decision. The fourth defect in the ,process is somewhat more subtle.than the first three in that it relates to the selection committee's. attempt to evaluate the supervisory and leadership capabilities of the candidates. These skills are an important component in performing the other half of the Technician - Grade 3's position as is indfcated by the job specification reproduced above at page 5. The committee relied on the six standardized questions to test each candidate in this regard. The Board's concern here is that the questions posed by the selection committee are at best a very indirect device to determine the relative ability of the candidates to perform the supervisory tasks listed on the job specification form. As Mr. Swaile, the Personnel Branc~h. repre- sentative on the committee stated in cross-examination, it was - 13 - "not the best set of questions in the world:; Even if the questions were improved and made more directly relevant to the ski7ls listed in the job specification form, they would still not be a complete . substitute for the information which should have been gathered as part ,. of a review by means of Personnel records and the opinions of the candidates' supervisors. .._ _ The effect of the first three defects was that the selection decision rested virtually,exclusively on the interviews. Indeed, both Mr. Chojnacki and Mr. Swaile testified that their decisions were based exc1usiveJ.y on the interviews. Only Mr. Kovich based his consideration on a broader base of knowledge. The effect of the fourth defect - the scope of the questions and the information elicited at the interviews - was that the interviews were not a' sufficient basis on which to make a thorough and fair comparison of the relative qualf- fications and ability of the candidates.in order to abide by the dictates of Article 4.3 of the collective agreement. The combined effect of the four defects in the process is that the process fell short of what can reasonably be expected in the circumstances. In the result, the selection process used by the Ministry as part of its obligation under Article 4.3 to evaluate the relative qualifications and ability of the applicants was inadequate in that it failed to elicit in a systematic fashion sufficient information to permit a fair and reliable judgment about the candidates. At the outset of the decision, counsel for the Ministry and the Union agreed t.hat the Board should go no further at this stage other than to make this judgment. IJe hat:e. therefore, at the request of the parties, refrained from reaching our own conclusions as :o the relative merits of the grievor and of Mr. Cocking. Both are quite cleariy skilled, -.14 - \ dedicated and employees with long records of service in the Ministry. If necessary, at the request of any of the parties including Mr. Cocking we will reschedule this matter on or about December 15, 1979 to make~a final determination in this regard. However, at the hearing, the oarties indicated some optimism that such a reconvening of the hearing would not be required x.. and tha<~.&th our decision to this stage the parties would be able to find~a solution to this grievance mutually acceptable to the grievor, Mr. Cocking and the Ministry. We therefore 'remain seized of the matter to permit a reconven- ing of the hearing at the request of any of the griever, Mr. Cocking or the Ministry%0 reach a final decision regarding this grievance.. DATED AT Toronto this 13th day of December, 1979. J. R. S. Prichard Chairman I concur I. K. Levack Member I concur 1 G. K. Griffin t,:ember