HomeMy WebLinkAbout1979-0070.Chen and Talon.81-12-141
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In this case, there are two grievers both of whom were unsuccessful
applicants for the job of Vocationaf Rehabilitation Counsellor (Rehabilitation
Officer 2 -Health) at Lakeshore Psychiatric Hospital which was posted on
November 17, 1978 (Ex. I). Both grievers allege a violation of Article 4.3 of
the Agreements which is reproduced below:
In filling a vacancy, the Employer shall give primary
consideration to qualifications and ability to perform the
required duties. Where qualifications and ability are
relatively equal, length of continuoln service shall be a
consideration.
There were eight candidates interviewed for the job. The successful
applicant was Ms. Linda Muller. She was notified of the hearing and of her
right to participate, and attended with her counsel on the first day of the
hearing. Between the first and second hearing dates, Ms.Muller’s counsel
notified the Board that Ms. Muller had resigned from the employ of the Crown
and would no longer be participating in the hearing. Ms. Muller was not called
as a witness by the Employer.
The job specification for the position of Vocational Rehabilitation
Counsellor (Ex. 3) was filed and the relevant sections are reproduced below:
Purpose of Position
To assist in the realistic evaluation, planning and
execution of vocational aims for patients and boarding out
patients of the hospital.,
Summary of Duties and Responsibilities
Under the direction of Supervisor, Rehabilitation
Coww4ing Services, assists in Vaational Rehabilitation
Servim by performing such duties as: (65 96)
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interviewing clients to determine extent and
significance of motivation and capacity for personal
treatment in Vocational Rehabilitatim;
assessing attitudes, interests and abilities of clients by
series of interviews, reviewing workshop records and
through referral for vocational tasks and
interpretation of the results of such assessments to
tbe clients involved;
participating in Client Progress Conferences to set up
rehabilitation prosam with the ultimate objective of
integrating the client into the community on a self-
supporting independent basis;
estatdishhg and maintaining accurate and upto-date
files on caseload clients involved in Vocational
Workshop programs, preparing written note5 including
initial, assessment, OFC, progress and termination;
counselling and assisting clients in making a choice of
vocational goals and in determining the best way to
achieve the desired ends;
- referring client to Canada Manpower for job
placement and Rehabilitation Group of the
Department of Family and Social Services or helping
to select business or training school as required for
client train@
- participating in review conferences and recommendhg
disposition conducting follow up interviews with
clients as required and maintaining liaison with
employers, other agendas, etc.;
- acting as rehabilitation consultant to prime therapists
and other team members in case management, etc.
As a member of the Vocational lreatment team to assist
in the organization and operation of Vocational
Rehabilitation Workrbop by performing suzh duties as:
(25%)
- maintaining a dme working relationship with
Workshop Instructors in their assigned areas;
- assisting in tbe planning and implementation of
specific treatment plarrs and training progams within
a vocational settinp;
- mnducting work readiness soups, using role playing,
lectues, etc.:
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- counselling workshop client-employees on problems
related to their work adjratment;
- monitoring progress of assiwed client employees.
Perform other related duties such as (10%)
- arranging for work adjustment training, on-the-job
training or job placement as required with
consideration of the mertal, emotional and physical
abilities of the client;
- compiling statistical information and completing
written repot-6 pertaining to the Vocational
Rehabilitation of clients as required by the Supervisor
of Vocational Counsel@ Services;
- providing public understanding and interest in welfare
of the mentally and emotionally disabled;
r preparing travelling accosts and daily itinerary;
- as assigned.
Skills and Knowledge Required to Perform the Work
Grade I2 education, preferably a diversity degree in the
social science.5 or an equivalent combination of education,
experience.
Thorough knowledge of the methods and techniques of
rehabilitation.
At least me year3 experience in vocatimal
rehabilitation.
Both Mr.Chen and Ms. Muller were employed at Lakeshore
Psychiatric Hospital in positions classified
as Workshop Instructor II.
Ms. Talon was also employed at Lakeshore Psychiatric Hospital as a Dental
Assistant. Whatever information we have about lMs. MuIIer’s background
comes from the application she filed for the job and her attached resume
(Ex. 6A & 68). Her seniority date is September 13, 1976, and her resume
discloses that she has grade I2 education and a teaching certificate after a
two year course at Lakeshore Teachers College. It appears that she also had
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two courses in Rehabilitation Counselling at Seneca College, a Department of
Education correspondence course in Accounting, and two courses in Applied
Vocational Coumelling at Humber College. She was previously employed as an
elementary teacher from .I969 to 1976.
IMr.Chen’s seniority date is August 17, 1972. He matriculated in
Australia and then was qualified as a Psychiatric Nurse in Australia. After
coming to Canada in 1969 he completed one year of Arts and Science at
Erindale College and took one course in Rehabilitation Counselling at Seneca
College. From 1963 to 1969 he was employed as a Psychiatric Nurse in
Australia. From the date of his hiring at Lakeshore until 1974 he was
employed in the nursing department as a Nursing Assistant. In 1974 he became
a Workshop Instructor II.
Although the evidence indicates that IMr. Chen and Ms. Muller were
involved in teaching different job skills to patients, it is clear that they would
both be involved in activities that would put them in regular contact with the
Vocational Rehabilitation Counsellor in the course of their work. They would
both have been involved in keeping records on clients and making both verbal
and written~reports on their clients at the various regular conferences which
would be held within the Vocational Rehabilitation area.
IMS. Talon has a degree in dentistry and practised as a Dentist in the
Philippines from 1952 to 1968. In the course of her practice she also did the
dental work for patients in two institutions for those who were mentally and
physically handicapped. In 1968, after coming to Canada she took a course in
speech and oral communications. She then took two courses concerning the
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teaching of preventive dentistry to the public. This was followed by two
courses from the Addiction Research Foundation in ,the epidemiology of
alcoholism and drug tolerance. From 1974 to 1976 she attended Seneca
College at nights and completed the course of study, with honours, to receive
her certificate in Rehabilitation Counselling. Immediately prior to this she
also completed the Psychology 100 course at the University of Toronto.
,She has been employed as a Dental Assistant since 1969 and in the
course of her work is involved in keeping patient records as welI as discussing
dental work with patients and convincing them to allow the necessary work to
be done. In addition to her other regular duties she planned and drafted an
outline of the functions to be undertaken by a Dental Assistant in the absence
of the Dentist (Ex. 12) and has carried out those functions regularly. She also
wrote a handout (Ex. 13) for staff, outlining dental hygiene programmes for
patients, and published an article (Ex. I41 on the hospital’s preventive dental
programme in a periodical published by the Ontario Dental Nurses and
Assistants Association.
It appears that sometime around 1974 .Ms. Talon decided that she
wanted to change careers and she sought the assistance of .2lessrs. Sandow and
Heinrich, the Rehabilitation Supervisor and Director Vocational and
Recreational Services respectively. After discussions with them she decided
to try to become a Rehabilitation Counsellor and enrolled in the Seneca
College course. Ever since 1975 she has Seen involved in volunteer work
involving counselling. Some of this counselling was done on an informal basis
through the Catholic Women’s League in her parish and dealt with personal and
financial problems. Some was done through the St. Vincent de Paul Society to
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those receiving society benefits. Some of those in this latter group were
former Lakeshore patients, and her work involved referrals to other agencies.
For the three years immediately before the job posting with which we are
concerned, she was a volunteer rehabilitation counsellor at Transition House in
Toronto. This is a halfway house for those leaving penal institutions,
psychiatric hospitals, etc. Its aim is to reintegrate the residents into society.
In the course of her counsehing, Ms. Talon taught skills, wrote reports. made
progress assessments, and contacted other agencies and emplbyers as required.
In the course of her work, she reported to two professional social workers,
both of whom possessed M.S.W. degrees. She is also a member of the
Rehabilitation Personnel Association.
All of the candidates for the job were given interviews which lasted
approximately half an hour. The interviewers were Messrs. Heinrich and
Sandow, who have already been identified herein, Dr. Day who was a part-time
. consultant in Rehabilitation at the hospital, and Ms. McCimpsey who was a
personnel officer. All of the interviewers, except I&IS. tMcCimpsey, testified.
It appears that all interviews were done in the course of two days
and that all of the interviewers were supplied with all of the applications and
resumes. It also appears more likely than not that the applicants’ personnel
files were not looked at by the interviewers. There was no set of uniform
questions, and all candidates were not asked the same questions. Mr. Heinrich
prepared a list of areas for questions (Ex. 19) which was circulated to all
interviewers and which is reproduced below:
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4 Priiary areas of questioning
1. Intellectual skills and aptitudes
2. Motivational Characteristics
3. Personality strengths and limitations
4. Knowledge
Brief Orientation to hospital/VRS Department
- Organization
- Structure
- Function
Job Speciiications
- Caseload of up to 40 clients involving:
- interviewing
-. notes
- CPC reports/presentations, goal setting and follow
w - life skills training i.e.
- interpersonal
- community
- job survival
QlMtiOIlS
- Reason for applying for this position
- Future aspirations, goal& career objectives
- What is most appealing to you about this position
- Personality strengths/weaknesses that will effect
your work performance
- Personal background and experience applicable or
beneficial to effective execution of job
responsibiities
- What makes you the best candidate for this job
- Tolerance for stress, frustration, peer pressure
- Are you a self-starter or a follower
There was no ranking or rating scheme discussed by the
interviewers, and following each interview they attempted to compare the last
applicant to the best so far. They attempted to reach a consensus in each
case. Their decision on the candidate was based on the person’s presentation
in the interview. It would not be an unfair summary to say that all or some of
the interviewers were basing their decisions on the personalities of the
candidates and their method of presentation.
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1Messrs. Heinrich and Sandow and Dr. Day were familiar with
Mr. Chen and Ms. .Muller and had contact with them in the course of their
work. In particular they were familiar with the way those two candidates
dealt with written and oral reports on clients in the conferences when client
progress was discussed and they were also generally familiar with the quality
and sort of work done by Mr. Chen and Ms. Uuller. None of the interviewers
had had any professional contact with Ms. Talon, none was familiar with the
functions of her job, and none approached her supervisor to discuss her work
performance.
It is clear from the evidence that the free-flowing style of interview
adopted was found to be somewhat disconcerting by Mr. Chen and Ms. Talon.
It is equally clear that Ms. Talon was very upset by Dr. Day’s opening questions
and comments about dentistry. While Dr. Day did not intend to offend or
upset LMS. Talon, it was apparent to everyone that his anempts at humour fell
flat, and that his remarks could have been taken as being offensive. as they
were by Ms. Talon. It was apparent to everyone that Ms. Talon’s performance
in the interview was influenced by this opening gambit, and that she may not
have been as forthcoming as she could have been about her work and
experience as a volunteer counsellor.
.Ms. Talon testified that she did not believe that the interview was
related to the job at alI and that. after it was over, she felt that it had been
futile to try to improve her education in this area in order to make the career
change. Indeed! after hearing the evidence. it is not hard to appreciate that a
candidate would leave wondering what connection there was between the
questions asked and the job requirements.
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The candidate who was ranked number one after this procedure was
not offered the job because, after her or his references. were checked. it was
discovered that there was some problem. The second choice was *Ms. !Juller.
The two grievers were ranked seventh and eighth.
When the individual interviewers were questioned, there were
substantial differences among them about the way they .viewed .Ms. Talon’s
education as compared to IMS. Muller’s. There was also a tendency to discount
Ms. Talon’s volunteer work, even though none of the witnesses was familiar
with the details of the work or with the sort of professional supervision which
she received while doing-her work. While motivation and self-starting was
valued, there appeared to be no consideration given to the motivation and
self-starting involved in going about preparing oneself for a mid-life career
change after having spent the last 20 years working in some capacity in the
field of dentistry.
None of the interviewers was made specifically aware of the
collective agreement requirements of Article 4.03. Seniority was not
considered at all.
In Quinn (9/78) four major defects were isolated in the selection
process undertaken. They were; ill-that only one of three interviewers had
read the personnel files of the candidates; (2) that the supervisors of the
candidates were not asked to provide an evaluation of their work performance;
(3) that no information was gathered about the candidates’ ability to perform
the major part of the job; and (4) that the questions posed at the interview
were at most an indirect device to discover whether the candidates possessed
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leadership ability. There the candidates were all asked the same questions and
the interviewers all made subjective assessments about various characteristics
possessed by the candidates. The board pointed out, at page 13, that the
effect of these deficiencies was that the selection rested virtually exclusively
on the interviews. As a result, in an interim award, the matter was referred
back to the parties because given the deficiencies the board could not
determine whether there had been a breach of Article 4.3.
Following the interim award, the defects in the procedure were
cured, and the griever and the incumbent were evaluated to determine their
qualifications and ability to perfarm the job. The ultimate disposition of the
case was that the two were not relatively equal and that Article 4.3 had not
been breached.
In this case, it is clear that, at least in Ms. Talon’s case mcst if not
all of the Quinn defects were present, and that the procedure adopted did not
meet the standard set out in the -case. Counsel for the employer did not
argue that the procedure was free of defects or that it met the standard set
down in quim. The thrust of his submission was that no substantial error was
made in the wessment of the candidates.
It is difficult to agree with that condusion. In this case, IMS. Talon’s
education, both absolutely and especially in the area of Rehabilitation
Coinselling, was superior to either Mr. Chen and Ms. Muiler. Ms. Talon also
possessed related experience both in her job and volunteer work which may nor
have been evaluated or taken into consideration. In short, it seems from the
evidence before us that Us. Talon, at least, can make out a prima facie case
that she was at least equal in ability and qualifications to Ms. Muller, and so
was entitled to have her seniority considered when the final choice was made.
This was the same conclusion reached by the board in
Zuibrycld (100/76) in the decision dated May 3, 1979. As a result of that
decision, the matter was remitted to the parties to fashion an appropriate
remedy. After the parties failed to fashion such a remedy the board issued a
decision dated February 16, 1981 awarding the position to Mr. Zuibrycki. It
was pointed out there that there was no procedural failure on the part of the
employer, but rather an error of judgment. In this case we have a procedural
defect as in Squirm, which becomes critical because it could have led the
employer into an error in judgment and into a violation of the collective
agreement.
In this case, there are undoubtedly difficulties in remitting the
matter to the employer to cure the defects in the process along the lines of
the quim criteria, A great deal of time has passed since the competition was
held, Lakeshore Psychiatric Hospital has dosed, and Ms. Muller has resigned,
to name only three problems. While these problems are real, they can be
surmounted and, unlike the board in Kosnaskie (@l/79), we do not have
evidence from the successful candidate and are not in a good position to assess
the relative mer&of the candidates. Moreover, in Kosnaskie the selection
criteria were found to be reasonable and the rating system was not unfair;
therefore, the review of the employer’s decision could be made with
cqnfidence that the selection procedure had brought forth all the relevant
material which the employer should have considered. That is not the case
here. In this case, we also have two grievers, both of whom may have been
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adversely affected by the employer’s failure to evaluate and select in
accordance with the Quinn criteria.
Although counsel for the grievers argued forcefully that Ms. Talon
should be awarded the job, he was agreeable to Mr. Greenbaum’s suggestion
that the competition should be re-opened, insofar as the two grievers were
concerned, rather than opened generally for all the unsuccessful candidates.
Accordingly, the board will declare that the selection procedure adopted by
the employer was such that, like the board in Q*, we must conclude that
the employer put itself in a position that it lacked a “sufficient basis on which
to make a thorough and fair comparison of the relative qualification and
ability of the candidates in order to abide by the dictates of Article 4.3 of the
collective agreement” (p. 13). LMoreovert it is also the case here that at least
one if not both of the grievors has made out a prima facie case of at least
relatively equal qualifications and ability to the successful candidate, and so it
is impossible to conclude that no harm was done by the employer’s failure to
structure an adequate selection procedure. Therefore, for all the reasons set
out above, the grievance will be allowed and the board will remit the matter
to the employer to hold a limited competition involving the two grievers
rather than all of the unsuccessful candidates. The parties will be left to work
out the details of the competition and the results which may flow therefrom.
and the board will remained seized of the matter failing their agreement.
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DATED at London, Ontario this 14th day of December, 1981.
G. Brent, Vice Chairman
M.M. Perrin, LMember
“I dissent” (See Attached)
D.B. Middleton, b\ember
/lb
70/79
OPSEU (Mr. S. Chen and Ms. F. Talon)
and
The Crown in Right of Ontario
(Ministry of Health)
ADDENDUM
The following comments deal with the dissenting opinion of
Mr. Middleton; he disagrees with the majority on two issues:
(1) the favourable evaluation of Ms. Talon; and
(2) limiting the competition to the two grievors.
This member has no difficulty stating that based on the
substantial amount of evidence before this Board as to the grievors'
qualifications and abilities, Ms. Talon was obviously the most
qualified person for the position. The evidence with respect to Mrs.
Muller's qualifications as compared to those of Ms. Talon (pages 6, 7
of the decision) demonstrates that the ranking was erroneous. The
ranking was not based on the qualifications and abilities of the
competitors. Talon was clearly superior to Muller in both areas.
The dissent appears to use the erroneous ranking to buttress that
member's position on the above two points. And, a totally meaningless
ranking cannot be used for such a purpose. The majority remarks as to
Ms. Talon are therefore not out of order; further, in the circumstances
that exist in this case, it would be inequitable if such comments were
not made in the decision. In fact, if Zuibrychi GSB loo/76 had, at this
time, been confirmed by the Divisional Court, this addendum would have
suggested that the appropriate remedy in the present case be the same
as that in Zuibrycki: i.e. award the position to Ms. Talon. The initial
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remedy suggested by the union was the one awarded in Zuibrycki.
The present case is distinguishable in many ways from the
Hoffman decision, including the fact that due to budget restraints
the position is no longer-in existence, and again in the circumstances
of this case, it would not be practical to open the competition to all
original applicants. It is also not unconnion for Boards to limit a new
competition to the grievors in the particular dispute. It is also impor-
tant to note that it was the Ministry's counsel who suggested the limited
competition - a remedy the union said would be satisfactory.
DISSENT OPINION
The majority of this Board were advised of the
views of this member as to a satisfactory outcome of
this case by written comment dated October 7, 1981 before
coming down with theLr decision, and therefore will not be
caught unaware of the main facts and thrust of this
dissent.
The majority award notes that there were some
complicating and difficult features in this case which
resemble the Quinn case 9/78 in certain significant ways
but made the task of this Board even more difficult.
1n fact something may be gained by restating
these inherent problems in a somewhat different order
and mode.
'In the first place the two grievors were ranked
seventh and eighth out of eight (8) candidates for the
position of Vocational Rehabilitation Counsellor (2) Health
by decision of the Ministerial Selection Board.
The ranking of the two grievors and the fact
that there was only one job open for competition did not
aid the advocacy or decisive capacity of Union Counsel,
and it is a matter of record that in the end faced with
this awkward situation he plumped for the candidacy of
one, namely Ms. F. Talon.
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The job as originally posted no longer exists
and Lakeshore Psychiatric Hospital has closed.
Mrs. Muller, the second choice of the Selection
Board and successful candidate appeared as third party
with her Counsel, Mr. E. G. Posen but withdrew between
hearings of this Board.
A great deal of time has passed since the com-
petition was held which rendered the available evidence
stale. This was also a factor in Quinn 9/78. In fact
there was no calling by the Employer.to the stand of
Mrs. Muller or any of the other unsuccessful but more
highly ranked original candidates for the posted job.
Consequently, a paucity of evidence exists on which to
assess the comparable qualifications of the grievors to
each other or to the other candidates who did not grieve.
I concur with the majority award that singly and
together these difficulties are very real and my advice
then and conviction now is that an entirely proper and
less contentious outcome would have been to make a
statement of declaratory relief in line with the confines
to our jurisdiction conferred on us by the Contract and
the wording of the grievances or original submission to
this Board. (See Brown and Beatty 2:1300).
A declaratory award to the effect that the
Selection Panel failed in certain agreed on ways to do
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an acceptable job on the standards set out in guinr., and
at the same time refraining with reasons, from ordering
a rerun competition because of the particular impediments
to a successful outcome already enumerated above would
have gained my ready acceptance.
The likelihood of redress as an outcome; the
acceptance of a new competition for ~a now non-existing
job on a limited selection basis: and a ‘de facto’
completion of this limited' selection process by weighting
the evaluation scales in advance.for .Ms.- Talon is in my
considered opinion the overall result which this Board
has chosen and made this dissent inevitable.
The limiting of the competition on a rerun basis
is a very serious bone of contention and the source of
the suggestion is immaterial.. The acceptance of limita-
tion by this Board denies, if a r~erun must be held,
certain inalienable rights to the other competitors who
did not offer evidence as to their qualifications at our
hearing but all of whom outranked the two grievors in
the original competition standings.
I cannot read Article 4 to embrace this inter-
pretation. In fact Article 4.1 states, in part:
All applications tiili be acknowledged.
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The majority of this Board is well aware of the FaZconbrid?e
decision and the broad consensus in both private and public
sectors in prior arbitration decisions which supports my
point of view.
Recent awards of the Grievance Settlement Board,
Mr. II. Hoffman et al 22/79 and M. A. Siddiqi 128/81 speak
with authority to the sources of my concern at the outcome
of this majority award, and I note that there is a strong
similarity of circumstances in common between these two
seemingly unanimous decisions and this case.
The Hoffman award in particular best states my
position in acceptable terms on the,principles which mainly
separate out this Board; its content is near to the facts
of this case other than for detail; and the outcome is or
could be an acceptable alternative means of resolving the
lack of consensus which prompts this dissent.
The second main impediment to this Board coming
up with an unanimous decision lies in the obvious direction
given to the now limited selection process as to which of
the two grievors should succeed namely Ms. Talon.
Nothing in my opinion has transpired at our hear-
ings which should lead the majority of this Board to
substitute its judgement in advance of a rerun competition
for the decision making capacity of the Ministry of Health
selection team in the job posting and selection procedures
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called for in Article 4.
This would be so whether the competition is a
true rerun made available to all prior candidates or a
limited one by arbitral decree as in this case.
The minority position then in summary is that
the majority decision errs in its acceptance of the
limited rerun selection procedure: should have strenuously
avoided appearing to prejudice the outcome in favour of
one of the grievors; and improperly assumed a broader
remedial authority in the matter of potential redress
than can be justified by the Act, the Contract, the
mainstream of prior arbitral decisions and the written
submissions to this Board of the grievors themselves.
In fact in my view, harm has been done to the authority
and consistency of the Grievance Settlement Board when
this Board accepted the convenient solution to its
problems of a limited rerun competition made in the
first place by the Counsel for the Ministry of Health
and finding predictable ready acceptance by his O.P.S.E.U.
counterpart.
A finding of declaratory relief only as suggested
earlier in this dissent would have sufficed and robbed the
award of its controversial content.
All of which is respectfully submitted.
~.A.&~~~
D. B., Middleton Member