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HomeMy WebLinkAbout1979-0262.Chiasson.81-07-077~LEP”ONE: ar6/598- 0.588 262179 512180 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Grievor The Crown in Right of Ontario Ministry of the Attorney General Employer Professor A.M. Kruger Vice-Chairman Mr. G.K. Griffin Member Ms. M. Perrin Member Mrs. L. Stevens, Grievance Officer Ontario Public Service Employees Union Mr. B.C. Pitkin, Deputy Director Supreme Court and County and District Courts and Surrogate Courts Minisay of the Attorney General Hearings: April 7, l?Sl May 12, 19YI The Board of Arbitration was convened on April 7, 1981 to conduct a heating in this matter. The Employer raised a preliminary objection to proceeding because the griever had resi.gned from her employment before step one of the grievance procedute~ had been completed. The grievot had filed her grievance prior to her resignation. The Employer had considered the grievance both in step one and step two. The Boatd,:tejec?ed the Employer’s preliminary objection and decided that it had jurisdiction to deal with the matter. On May 12, 198.1, the Board reconvened to continue its hearing in this -.-~ I .-~’ -. ____.. matter. Because the matter involves a contested decision on a job posting, a third patty is involved. The incumbent in the position Mrs. Geraldin&-- Btouillatd, was present at both hearings and informed of her rights to participate in the proceedings. She testified before the Board. ~-. The grievor, Mrs. Diana Chiasson has seniority dating from February 14, 1972. At the time of the events leading up to this grievance she was employed as a Clerk 3 in the Ministry of the Attorney General, Sheriff’s Office in Sudbuty, Ontario. She had held this position since August 27, 1973. In May, 1980, a job vacancy for a Senipr Counter Clerk, Clerk 4 General in the Sheriff’s Office was posted in various offices of the Employer in Sudbuty. There were twenty to twenty-five applicants including, the griever. The Sheriff, Mr. Frank LeBrun discuss& the applications with Mrs.~Joyce Lazic in the personnel office in Torollto. Tlley agreed on a shorf list to be -3- - interviewed by them. Mrs. Lazic arranged the interviews. Prior to these meetings with the applicants, she and Mr. LeBrun discussed the procedure to be followed. They agreed on a list of questions to be put to the applicants on the short list. She and Mr. LeBrun conducted the interviews and made the decision to award the position to Mrs. Brouillard. Among those interviewed were the grievor, Mrs. Di Chksson and the current incumbent in the position, Mrs. Geraldine Brouillard. The griever told the Board that she was satisfied that the interview was conducted fairly. The questions put to her were reasonable. She has no reason to believe that~ Mrs. Lazic is biased against her. She felt that she had good reason to believe that Mr. LeBrun could not be impartial in judging her application. On numerous occasions, she and’ Mr. LeBrun had quarrelled in the office. Mrs. Chiasson felt she knew the procedures to be followed better than Mr. LeBrun. She resented his criticism of her and on occasion she criticized him. Once, when they disagreed, she called the head office in .- Toronto and confirmed that her version of the regulations was correct and Mr. Le&un was wrong. Later she launched a grievance against Mr. LeBrun, and after that she felt he harassed her. The Sheriff admitted they had differences and that he had a sharp temper. Mr. LeBrun told the Board that before the interviews, he felt Mrs. Chiasson would be successful in securing the promotion because candidates from outside the Sheriff’s Office would not likely have the required knowledge or experience. He was surprised to find that Mrs. Brouillard had ‘learned so much about the operation of his office by reading and contacting people who had worked there. He felt Mrs. Brouillard was superior to Mrs. Chiasson in knowledge and experience in bookkeeping, in her ability to relate to people and in her administrative skills. -4- ---- After the interviews, he rated Mrs. Brouillard first and Mrs. Chiasson second among those interviewed. Mrs. Lazic was also impressed by Mrs. Brouillard during the interview. This candidate’s study of the Sheriff’s Office’as well as her deportment were impressive. She had more experience in bookkeeping than the griever. Mrs. Lazic rated Mrs. Brouillard as’number one. The grievor, in her opinion was below both Mrs. Brouillard and another applicant and was tied for third place with a fourth applicant. After ‘Mrs. Lazic and Sheriff LeBrun had agreed that Mrs. Brouillard was the be.s.~candidate, Mrs. La&contacted Mn. Brouillard’s supervisor who confirmed that Mrs. Brouillard was an excellent empI~oyee. The job was offered to Mrs. BrouiUard who accepted the position. Mrs. Chiasson then grieved. In deciding this matter, this Board is bound by Article 4.3 which states: Article 4 - Posting and Filling of Vacancies or New Positions 4.3 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 continuous service shall be a consideration. This clause compelled the Employer to give “primary consideration” to rhose qualifications and abilities that relate to rhe performance of the - s- particular job. Only when these qualities and abilities are “relatively equal” is seniority a factor but seniority must then decide the contest. The Board has considered the procedure used by the Employer to arrive at the decision to award the position to Mrs. Brouillard. We are satisfied with most aspects of the process. The adver.tised job description matched the job specifications. The questions posed to the candidates were relevant and reasonable. The griever herself told us that the interview was fair. There were, however, several unfortunate procedural errors. First, the personnel files of the candidates were not consulted by Mrs. Lazic prior to the interviews. We believe that this should have been done and the -information thus secured, should have been shared with Mr. LeBrun. Mrs. Brouillard’s supervisor was not consulted until after the decision to award. her the positipn had been made. . Mrs. Lazic was not aware of the fact that Mrs. Chiasson had performed the duties of the job in question in short periods that added up to seven months. She knew of only two months of these seven months: experience on this job. Had she consulted the personnel files, she might have learned the truth concerning this important aspect of the grievor’s past work record. The Sheriff, of course, knew that Mrs. Chiasson had filled in for seven months and performed the job satisfactorily during that time. It is regrettable that the Sheriff’s Office did not follow the practice oi making written appraisals of employee performance on a regular basis. Mrs. Chiasson had never experienced such appraisals. Mrs. Brouillard had been appraised by her superiors and was able to append a copy of a recent favourable appraisal to her application. This Is not a procedural defect since we are not aware of any requirement for such written appraisaJs. We po~int it out ~only because it meant that the candidates entered the competition with different records of their work histories. - ------ The Board has considered all aspects of the contested position and the relative qualities of the two candidates as apparent from the evidence before us. For most of the tasks to be done, we can see little difference in the relative qualities and abilities of the grievor and the successful applicant. While the Employer made much of the bookkeeping tasks and while we agree that Mrs. Brouillard had more experience in this area, the bookkeeping is not complex and both candidates would probably perform this task equally well. Mrs. Chiasson certainly knew far more about the Sheriff’s Office than Mrs. Brouillard even though the latter had-dune some research. Mrs. Brouillard on the other hand, had superior skills in interpersonal relations and more demonstrated qualifications in administration. The Board is satisfied that the procedural irregularities are not such as to require us to return the decision to the Employer for reconsideration: When Mrs. Brouillard’s supervisor. was contacted,,he reported that she was an outstanding employee. We know that Sheriff LeBrun had a less enthusiastic opinion of- Mrs. Chiasson. Had Mrs. Lazic checked, the personnel files and contactec.Mrs. Brouillard’s supervisor prior to the decision, it would have only favoured Mrs. Brouillard’s case. Sheriff LoBrun may have had his differences with Mrs. Chiasson. However, it’would take much stronger evidence of bias than we have heard before we would- disqualify him from participation in deciding among applicants for a senior position in his Office. We have no reason to disbelieve his evidence that he rated Mrs. Chiasson higher than Mrs. Lazic did and this does not support the allegation of bias on his part. Mrs. Chiasson could have discussed her experience performing this job during her interview. Her failure to do so is surprising. In any case, Sheriff LeDrun was aware of this. i\irs. Lazic knew of two months experience. We do not believe that had she shown of the other five months experience that this would have raised her from being tied for third place - l- to being tied for first place and, therefore, superior on the grounds of greater seniority than.Mrs. Brouillard. While the grievor had superior knowledge of the operation of the Sheriff’s Office, the fact that the job was advertised in all the Employer’s offices in the area, indicated that this did not weigh very heavily in the decision. The Employer could not expect applicants from other departments to know much and yet was willing to consider them. Mrs. Bmuillard demonstrated her ability to acquire this knowledge in the course of her interview. Mrs. Brouillard had shown greater skills in interpersonal relations and in administrative assignments than the grievor. In the decision the Employer chose to give more weight to those areas where Mrs. Brouillard excelled than to the area where Mrs. Chiasson was superior. Given the nature of the job, we do not find this unreasonable. For all. these reasons, we find that the Union has failed to show that the decision was arbitrary, discriminatory or unreasonable. Accordingly, the grievance is dismissed. Dated at Toronto this 7th day of J&y, 1981. - I Jd * . \ rw . G. K. Griffin MClllbf2r ii- Diana Chiasson -and- The Crown in Right of Ontario Ministry of the Attorney General DISSENT The facts of this competition grievance are set out by the Chairman. This member, however, in in disagreement with the Chairman when he states: “We are satisfied with most aspects of the process” for the following reasons: Il.. In addition to_ the.. personnel- file-not being~_cqpsulted,:~.Mr, LeBrun did not make Mrs. Lazic aware of the fact that Diana Chiasson had performed the duties of the job’.in question for a total of seven months. The failure of the grievor to discuss all her experience in the area of the competition during the interview is not surprising, as she was being interviewed by her immediate supervisor, Mr. LeBrun. Sure&the Sheriff, Mr. LeBrun, as Diana Chiasson’s supervisor and a member of the selection committee, was under an obligation to inform Mrs. Lazic of this fact. 2. The fact that the job was advertised in all the Employer’s offices in the area does not indicate that the knowledge of the functions and procedures of the Sheriff’s Office should not “weigh heavily” in the hiring decision. On the contrary, it is the first listed qualification for the position in the job posting. The qualifications for the job as per the posting were as follows: 1. A good knowledge of the functions ‘and procedures of the Sheriff’s Office; 2. Ability to deal tactfully with the legal profession and the general public; 3. Typing ability and knowledge of bookeeping principles; 4. Ability to provide technical assistance to staff; 5. Above abilities/knowledge to be demonstrated through related. progressively responsible clerical experience in a similar environment. 2- The selection criteria and the weighing of the above-noted qualifications must be reasonable in relation to the job functions. And, as noted in Qu& (interim award) 9/7X, at page 7, the function of this Board is to determine with the appropriate standard of review whether or not the grievor has demonstrated that fier;T qualifications and ability .to.~perform the required duties are relatively equal to thdse of other candidates and thus that -fier7 -seniority~ should have been taken into considera&&.” The Selection Criteria used in ihe interviewing process follows: 1. Administrative: good general knowledge of administrative methods/procedures in order to ensure efficiency and accuracy; ability to set priorities and co-ordinate day to day activities of a busy office; attention to. detail and accuracy necessary (i.e. preparing warrants, seizures and material relating to Sheriff’s Sales, withdrawing Writs of Execution, conducting searches, etc.). 2. Technical: related bookkeeping experience to effectively administer the Accountable Warrant Account ($20,000 per month) and provides other record keeping functions, such as: prepare monthly statistical report; prcpxes expense accounts for the S!jeriff and Depl:ty Slleriff; ‘/ .; -3- provides office supplies, postage stamps, etc. maintains attendance for Jurors and office staff - regular and casual staff - submits appropriate reports to head office; keeps Wack of fees and mileage expenses for Jurors, prepares cheques for payment . of same. 3. Communication Skills: good verbal communication skills necessary to deal with office staff, other intra and int=government staff; judiciary, members of the legal profession. and general public; i.e. jurors (deals with enquiries by telephone and at the public counter); demcnstrated.ability to listen effectively. 4. Personal Suitability: ability to work. independently, sometimes under press&, with a minimum of direction; sets own priorities; organizes workload; must be a self starter: neat appearance and pleasant personality; good attendance. 5. Supervisory Skills: demonstrated ability to supervise staff, provides leadership and guidance; ability to assign and explain work assignments; ability to instruct new or part-time staff. The griever certainly demonstrated superior knowledge of the functions and procedures of the Sheriff’s Office; Diana Chiasson had performed the administrative and technical functions listed above. With respect to the additional qualifications she uas at least “relatively evaI” to the incumbent, Geraldillc Brouillard. -4- Geraldine Brouillard did not surpass the griever with respect to the Administrative Selection criteria. Both parties had some supervisory experience and demonstrated progressive experience. However, the grievor’s was in the position in question. In addition, the grievor assisted in instructing new employees in the Sheriff’s Office with respect to their duties. In fact, it appears her competent knowledge with respect to the regulations affecting the Sheriff’s Office irritated the Sheriff. “Pleasant personality” is one of the items listed in part 4 of the Selection Criteria; ability to deal tactf.ully with the legal profession and the public is listed as a qualification for the position. The Chairman notes theincumbent had shown greater skill in “interpersonal relations”. Even if this is accepted, when offset by the griever’s superior knowledge of the functions and procedures of the Sheriff’s Office, the candidates~ are “relati.vely equal” and therefore article 4.3 of the collective agreement comes into effect. It is not reasonable that the employer give more weight to the “areas where Mrs. Brouillard excelled”. To do such is to mock artide 4.3; it allows the employer to select on the basis of personality rather than on .the “qualifications and ability. to perform the required duties”. The incumbent impressed all members of the Board as being a confident, enthusiastic and pleasant person. The position in question was a step in advancing her career. She will obviously do well. However, this is not the basis upon which the employer is to. make a selection. The employer is constrained by the requirements of artide 4.3, and on the basis of that article and the grievor’s seniority, this member would allow Diana Chiasson’s grievance.