HomeMy WebLinkAbout1979-0100.Hozack.80-11-20; ,.’
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GRIEVANCE i’l
SETTLEMENT i i BOARD i
.Between:
Before* -
IN THE MATER OF AN ARBIXTRATIDN~ ,_ ,, ..c, ...~
Under The
CROWN EMPLOYEES COLLECTIVEBARGAINISI(G ACT
Before
THE GRIEVANCE SETTLEMENT-=OARD
Ms. Fiat-y Hozack
And
The Crown in Right of Ontario
Workmen's Compensation Boar&
Professor Katherine Swinton
Mr. F. Collict
Mr. Cl: Anderson
Vice-Chairman
Member
Member
For the Grievor:
Mr. G. Jones. Administrator (W&C.B.)
Canadian Union of Public Emplozzzes
15 Gervais Drive
Suite 503,.Don Wlls, Ontario
For the Employer:
Mr. C. G. Riggs,
Hicks, Morley, Hamiiton
1201 Royal Trust Tower
Toronto-Dominion Centre
Toronto, Ontario
Hearing:
October 24th, 198b
Suite 2100;.180
Toronto, Ontario
Gundas
St. w.
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In this case, Mary Hozack grieves that she has been unjustly
denied a promotion contrary to,the.collective agreement. Miss Hozack ..~^.. . .
has been an employee of The Workmen's Compensation Board since September
16, 1974. She applied for the position of Rehabilitation Service
Controller in January, 1979. There were twelve applications for two
positions and the successful candidates, E. D'Alessandro and P. ,Griese,
both had less seniority than the grievor. As both of these employees
might be affected by the result of this hearing, they were given notice
and both were present at the hearing.
The grievor relies on Article 5(5) of the collective agreement
(Ex. I), which reads:
Both parties recognize:
(a) The principle of promotion within the
service of the Employer.
(b) That job opportunity shall increase in
proportion to length of service:
(c) That the primary considerations in filling a
vacancy are qualifications and ability to
perform the required duties.
(d) Therefore, in making staff changes, transfers.-
or promotions, where qualifications end ability
. are relatively equal, seniority shall be the
determining factor.
In order to succeed in this grievance, the grievor must show at a minimum
that she had the qualifications and ability to perform the required duties.
~'?' "Waving-proved that; she must show that her qualifications and ability.are '
y -c<: ,. "relatively equal" to that of the incumbents in order that seniority becomes .~ . . . __
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the2~deE-termiiting factor.
Xournsiel for the grievor argued that the,grievor was the most
quaJJifiied'Famplicant for the job and, therefore, seniority was not
an iissuue. .A%ternativeJy, he argued that she was relatively equal
to ~he~rsuczessful candidates and; as the more senior candi.date, she
shoojJd:tbe awarded the position. Counsel argued as well that the
seleectii~on Ipr=edure was flawed and the decision should be quashed
on tJhati bas-iS-
Tithe iposition of Rehabilitation Service Controller which the
griever seeks .has two basic functions. The first is to determine
whet$her- cli&~US Of The Workmen's Compensation Board are entitled to
the serv4ces of the Rehabilitation Department. The Controller reviews
the czlie%t'S CJaim file to decide whether the client needs retraining
and rrehzabilitation services because of the type or degree of disability,
his &fF?ity to return'to his Previous job, and the availability of his
prev$OUS Job- This task requires considerable contact with people
outs$\de tthe WOrkmen'S Compensation Board, including employers, doctors,
and.Wrkers' representatives, so as to clarify matters and to assist in
the dieterminatfon Of entitlement to training. This training might take
the fioti .of cOWSeS in a school setting or retraining at a place of
emploflent.
A second function of the job is the calculation of the benefits
payable to the claimant who is found to be entitled to rehabili~atlbn"'.'.'~' ~'?' ""
-. : ,. - services. ., I. 1 _- ~...~ including supplies, transportation, and tUjti&;’ f&s’-so,&? 1. ., .,~’
'i - times requires contact with an employer to set up retra~nins~~~o~~~~mne~~ K'~ .:
and to settle financial responsibilities of the employer and the Board. '.~
-1n.thi.5aspect Of the job, the controller must be aware‘of the-payment~~" .~~
: provisionS of The w~~~~n's Compensation Act and policies with regard
to entitlement to various kinds of benefits.
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Mr. Paul Nolis. presently Manager of Auxiliary Services,
W&S the Supervisor of Control and Statistical Services at the time of
' the job posting, and he, along with-Katie MacDona!d,,Cpordlnator~.of-...--.- --- .-, ,_. ._
Rehabilitation Service Controllers, interviewed the candidates and
made the selection. He set out the skills~which he felt were necessary
for a Rehabilitation.Service Controller. Communication skills were rated
as very important in the Controller's job. The Controller must have an
ability to communicate verbally with all types of people. This is
important to both the entitlement function and the payment function, for
the Controller will 'have to make inquiries to decide entitlement and
will often have to explain the basis of payments to clients. Writing
skills are also important, as the Controller must make a wrftten
report on each decision. Accuracy was also stated to be an important
attribute for both aspects of the job. The Controller must first make
the entitlement decision from the information acquired and the claims
file, and that decision binds the Board. .Accuracy is obviously important,
as well, in the calculation of payments, both from the point of view of
the Board and the client. ,Mr. No1is.als.o mentioned the need for-inter-.
personal skills, including tact, especially needed when dealing with
upset clients. An ability to work under pressure is important. as the
Controller's job is a high-pressure and high volume one, with each
Controller averaging five claims per day.
The grievor testified that she was'more qualified than the'other
candidatesi,to.do.the job, as well ashaving greater seniority. At the:~ j iI
time of her application, her job,was ~that pf;,Rehabilitation-Enurneratp~~~._ ..~,r,. .~ : / ..
That job requ>red her to check.the computatioos of~:payments,mFoelby .the. ~:Y: .,~'=: ;~:.' .:7-.. ,~
Rehabilitation Service Controllers for mathematical. accuracy..cIn doing so,-. , i
she testified that she acquired familiarity with the claims fiI'eI Her main
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functfon was statistical in nature and required her to prepare monthly
and semi-annual reports on the activities of the Vocational Rehabilita-
tion,.Branch. .&cordingto,her evidence, she spent a limited time (about -.- - .____.-.._.._ --._.__"-.- . . ._.I-.
one-half day per month) in contacting other people at the Board. In
addition to her experience at the Board, first as a Filing Clerk in the
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Records and Control Department, then as a Telephone Receptionist, Central.
Registry Clerk and Rehabilitation Enumerator in the Rehabilitation Depart-
ment, jhe had-taken a Rehabilitation Counselling course at Seneca College
which comprised eight courses over a two-year period.
With regard to performance in her present job, there is some
discrepancy between Miss Hozack's and Mr. Nolis' evidence. Mr. Nolis
stated that he spoke to the grievor about her short temper several times,
and that she walked out on him on some of those occasions. He also stated
that he spoke to her about inaccuracies in adding and transposition in
her monthly reports and tried to assist her by showing her how to do
fractions and percentiles; Hozack at first denied ever being spoken to
about inaccuracies and said that she had been spoken to only once about
her temper, and that the flareup discussed was a personal matter with
another employee. On cross-examination, she conceded that someone,
probably her supervisor, had discussed accuracy with her, and that Nolis
had spoken to her about her "sporadic behaviour". In assessing credibility,
we would give greater weight to Nolis' evidence than the grievor's with
regard to these circumstances, in light of her changed testimony,on cross-
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In reviewing the griever's 'qualifications,and experience-, it .,: :.~ f~,. ':~_ ..:;,..:- ._.. ,: -.I Ti: .!.';::. ,,:+*+ il y/';;::..> :g-q ‘;~,-+-~-I: I‘..- ;
would appear that she was qualified to do the job; Nol,is~,cii.d: not contradi,ct . ~,T'-
the griever's testimony to the effect thathe'had told her that she was.quali*
fied, although,he said to her at the time that she needed to improve.tier
accuracy. She did have familiarity with the Rehabilitation Department and the
structure of the Board through her job. As well, she was familiar with
the arrangement of claims files, even if this was not required in her
_ .-.- --...- ..-~..I .._.._ ._.. ~_ present job. The fact~that she was not inrmediately.able to- do,the .'.~
job does not make her "unqualified", as Nolis testified that any new
controller took at least~six months to train.
Qualification to perform the required duties of the job Is, how-
ever, only the first hurdle for the grievor.‘ She must, es well, show
that she is more'qualified than or, at least, "relatively equal" to the
incumbents~. .Mr. Jones, for.the grievor, argued that ~there should be
some "reasonable standard" against which qualifications of employees
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seeking a job are measured. That is, employees should not be measured
against each other, but-against the standards of a reasonable employer,
However, the language of Article 5(5)(d) of the collective agreement
(quoted above) precludes such an objective measurement. That clause sets
out a competitive seniority provision, in which employees who are quali-
fied to perform the required duties must be measured against each other
to determine who is most suitable for the required dutjes of the 'job.
The qualificatfons specified~for the job will be subject to a require-
ment of reasonableness, but in the apniication of those qualifications to
the applicants, there is no objective "reasonable" standard or ceiling
to be applied. Candidates are to be measured against each other.
In considering relative equality, we must then look at the quali-
. _fications of p.'Alessandro and Griese. The former had beenworking as a
Vocational Rehabilitation Receptionist Counsellor'at the Board. Her job ..~ .-
involved extensive contact with. the-public-and?dthpr Board‘etiployees, as she
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handled all inquiries about vocdtiondl.rehabilitation;“'resolvihg~the ' .-.:.
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less complex problems and channelling those which she could not handle
to others in the Board. Apparently, the job required a great deal of
tact and diplomacy and ability to handle pressure, as clients often,~." -_ .__~. _ . . .~
became upset. There would also be some knowledge of payments needed
in order to explain them to clients. As well, there would be familiarity .~
with rehabilitation services through communication with Rehabilitation
Counsellors.
Miss Griese'worked as a Basis and Compensation Computor Clerk,
calculating the payments to which a worker was entitled. The job
~required familiarity with the Act;.computation skills, and an ability
to communicate, so as to explain the computations, usually to other
Board employees.
In comparing the qualifications of the grievor with those of
D'Alessandro and Griese, the conclusion must be that the grievor is not
relatively equal to them. D'Alessandro had knowledge of the Rehabilitation,
Division because of the demands of her job and through contact with
Rehabilitation Counsellors. She had good knowledge of.the workings of
the Board. Her job required an ability to consnunicate with people,
frequently in difficult situations requiring a great deal of tact,
which was important to the Controller's position. Griese's job required
accuracy in computation, a knowledge of the Act, some ability to.com-
municate verbally and ability to work under stress, all important to the
Controller's job. Most important, she was familiar with the payments
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system under the Act. .' :. '.,_ . . _, .' ). __ .I>~ j. i.y:;. .:. '.
The grievor had: g~ood.knowl.edge ,of:;the: Rehabilitation..Di:vision. .. ::~.. i.'% . _. \. ji
and the course from Seneca in her favour, butTshe lacked~experiencewith.
the payment system,,,particularly calculation... Her probTems with mathemati-
cal accuracy and her interpersonal skills must be seen as drawbacks to her
candidacy, particularly in a job where there is such a high degree of contact
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with people inside and outside the Board and where accuracy in calcula-
tion is so important to the Board and to clients.
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Overall, the incumbents aRnear'&have been mo, qualified than
Hozack. Each would need training for the position, but Griese's familiar-
ity with payment computation and D'Alessandro's with the Rehabilitation
Division would facilitate that training. As well, they had records showing
an ability to cosnnunicate verbally and an ability to function under pressure.
The grievor's past history did not require, or give her an opportunity to
demonstrate an ability to communicate verbally. In addition, her record did
not demonstrate an ability to function under pressure. In selecting
candidates for a job, the employer is speculating as to the 1ikli:hood of
success by the applicants. is understandable that the employer would-
look to the past record and work experience of the applicants to help in
assessing the probability of future success. In this case, the prior
records of D'Alessandro and Griese indicated a greater likelihood of
success in the new job than did the grievor's.
Therefore, this Board does
not disagree with the determination that they were more qualified-than the
grievor .
It should be noted, however, that one factor which Mr. Nolis
took into consideration was not relevant to the decision about relative
.equality. There was evidence that Griese and D'Alessandro both spoke
foreign languages, while the grievor did not, and that this was an asset.
Even if this is an asset, foreign.language facility is not a requirement
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of the job nor mentioned in the posting as desirable. Therefore, absence
of a second language should not have weighed against the grievor.
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Nevertheless, even in the absence of this criterion,~the'grievor does 'not
meet the standard of relative equality.
In the alternative, counsel for the uniomdecided that the
selection procedure was flawed and the decision is therefore vulnerable.
In particular, relying on earlier cases'of this Board (Doherty & Ministry
of Health, 43/X; Morton & Taynen & Ministry of the Attorney General, 11/77;
Remark and Ministry of Revenue, 149/77; and Quinn & Ministry of Transporta-
tion & conmuuu 'cations, 9/78), he argued that,there should have been a
selection panel and that such selection body should have had a detailed
set of questions for each candidate and should have recorded and rated the I
responses of each candidate.
After reviewing the evidence and these cases, the conclusion-must
be that the procedure used was fair. The grievor herself said, on
examination-in-chief, that she felt that the procedure was fair. The
concern of the Board in the cases listed above appears to have been the
inadequacy of the procedures used in light of the particular circumstances
in each case. For example, in them and, puinn cases, the questions
posed to the applicants failed to test the applicant's suitability for
a major part of the job being sought. In this case, Nolis appears to,have
directed his questions to the requirements of the Controller's position,
as Miss Hozack and he both testified. Nolis was quite familiar with the
job, had the job description in front of him and tailored his questions
to explore each candidate's suitability to the job. The concern of this
Board in past cases has been whether the questions asked would explore
suitability for the job, The questions did not do so in Remark, but the
evidence demonstrates that they did so here.
Furthermore, the lack of a detailed rating system need-not. .:._ .
always be fatal to the process. Again, in Remark, the COkerfi Was.; . . ,...
that the interview foil did not direct the interviewers to meaaure.important .
qualifications for the job. There is no evidence tha~is,.the.casg_here.. Mr.
Nolis appears to have considered the same criteria for each of the three
candidates who have featured in this case. He appears to have sought out
relevant information where necessary to fill in the gaps in his personal
information about the candidates,.for example, by calling Miss Griese's
.supervisor.for a recommendation before making a~final selection. He
was familiar with Hozack and D'Alessandro, as their supervisor, and so did
not need to consult others.
.Finally, there is no requirement of a panel-in the cases
which have been cited. The concern in some.of those cases is the propriety of the
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procedure, given the existence of a panel. Here, not only is there
no requirement of a panel (although two people were present), but Article 5(3)
of the collective agreement goes so far as to provide:
All applicants within the bargaining unit
shall be interviewed either in person
or by telephone.
This clause seems to undermine Mr. Jones' argument that a panel is
mandatory.
In conclusion, the procedure used was acceptable and,
for the reasons given above, the grievance shall be dismissed.
(
Dated at Toronto, Ontario, this 20th day of November, 1980
Katherine Swinton, Vice-Chairman '
i concur
Frank Collict, Member
I concur
Dan Anderson, Member