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HomeMy WebLinkAbout1980-0603.Lethbridge.81-07-09IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Be&ore: Mr. Willis Lethbridge Grievor - And - The Crown in Right of Ontario (Ministry of Health) Employer Prof. P. G. Barton Vice Chairman Mr. I. Thomson Member Mr. G. Peckham Member For the Griever: Mr. G. Richards, Grievance Officer Ontario Public Service Employees Union For the Employer: Mr. A. I. Greenbaum, Counsel Ministry of Health Hearing: June 22, 1981 - 2- On October 8, 1980 the grievor W. Lethbridge fi1ed.a grievance alleging violation of Article 4.3 of the Collective Agreement.The alleged violation concerned failure to appoint the grievor as an Industrial Officer (ATYPICAL) at the Oakridge Centre, Ministry of Health, Penetang, Ontario. On August 26, 1980 the position of Industrial Officer I (ATYPICAL) was posted; The position is that of a work instructor in Workshop Services Oakridge, to provide instructional assistance in the Oakridge maximum security hospital, and provide therapeutic guidance to approximately 90 to 100 male patients in various sections of the industrial theory .workshops. The stated qualificationswere a grade 10 or better plus one year of experience in a therapeutic industrial workshop in a psychiatric hospital or similar institution,or an acceptable equivalent in formal training or experience. Knowledge of Oakridge security gained through at'least three months working experience on an Oakridge ward was required. Approximately 11 candidates applied for this position including the grievor and the successful candidate Mr. King. The candidates were interviewed by 4 persons who asked each candidate a series of questions relating to 6 criteria which were eligibility, related workshop experience, demonstrated ability to work with mental patients, good understanding of the concept and function of workshops, demonstrate ability to get along with authority and fellow workers, and personal suitability, health, etc. All criteria were rated equally with scores between - 3 - 1 and 5 being given for each. The total raw score of the grievor was 103, the total raw score of Mr. King was 110. One of the interviewers, Mr. Callas , rated the grievor and Mr. King to be equal, 2 of then rated Mr. King to be better by 1 or 2 points, one of then W. Leclair rated Mr. King superior by 5 points. Following the interview, a reference check was made in which Mr. Knight,the Director of Vocational Recreation and Volunteer Services at Oakridge asked John Sagan the Chief Attendant at Oakridge his opinion concerning Mr. Lethbridge and Mr. King. It was Mr. Sagan's opinion that while the grievor was a good steady employee, Mr. King had more initiative, better security~ awareness, better rapport with patients, and had been more involved with programing and assessment. Because the grievor had 6 years seniority over that of the successful applicant Mr. King, Mr. Knight decided to examine the two candidates mbre closely. A second interview was held which was restricted to examining the question of the understanding of the candidates of the concept and function of the workshops in 'the treatment of mental patients.' This was one of the 6 criteria used during the first interview. A series of 6 questions was asked of the two candidates which questions examined this one criterion. As a result of this interview a concensus was reached among the members of the selection board that Mr. King was better qualified and he obtained the job. He was present at this hearing and was given an opportunity to take part by cross-examining all witnesses called but declined to do so. - 4 - The qrievor joined Oakridge following some years as a stationery engineer for the Patterson Steamship Company. At the time of the competition he was a Group II Attendant. Between 1962 and 1972 he was an Attendant on various wards within the institution. Between 1972 and 1980 he worked as an Attendant in the Laundry supervising 2 and sometimes 3 patients in the cleaning of private clothing of patients. This work included supervising the washing, drying and dispensing of clothing, the appraising of the patients who would stay with him for up to 6 weeks, and the distribution of various cleaning supplies within the institution. : Up until the time of the competition there were a number of industrial shops within the institution including a Skid Shop in which 4 industrial instructors worked, a Furniture Refinishing shop, using oneIndustrial Officer, a Ball Shop in which two Industrial Officers were used, .and an Upholstering Shop in which 1 Industrial officer was used. The Skid Shop is primarily involved in using patients to nail up various pallets for forklifts and putting together patio tables and potato boxes. The skill level of carpentry involved in this shop is quite low. The Furniture Refinishing Shop does, as the name suggests, refinishing of furniture of a fairly high quality. The Ball Shop hand sews baseballs, a job which requires a certain amount of time to learn but which is notunduly difficult. - 5 - The Upholstery Shop is' involved in sewing of upholstery and the work requires a high degree of skill. It was decided in. 1980 to add the Laundry to the Industrial Theory Shops and this created a vacancy for the position of a Workshop Instructor there. As we have indicated the grievor unsuccessfully applied for this position. Evidence was given that the Industrial Instructors in the various Workshops do not circulate among the Workshops. They aresnormally assigned to a particular Workshop where they stay unless they are asked to fill in on an occasional basis when an Instructor in another Workshop goes away. It is also significant that the Selection Committee was not looking for technical ability in the fields of such things as furniture refinishing or upholstering and the members of the Committee felt that both the grievor and Mr. King were substantially equal in the area of technical ability. Mr. King was an Attendant III at the time of the competition, I a position one below that of,the grievor. He was working on Admissions which is a maximum security area and just as with the grievor his - only.familiarity with the Workshops other than the Laundry was in his having acted as an Attendant there on an occasional basis. Mr. King had been involved in assessing patients using a somewhat more complicated form than that used by the qrievor in the Laundry which form was substantially similar to that used in the Industrial Workshop and was used as the basis for one of the questions in the i - 6 - second interview. It is clear from the evidence that Mr. King showed somewhat more initiative than Mr. Lethbridge although the extent of this difference is hard to calculate. With respect to the questions asked on the second interview there were 6 of these. On one of these the.witnesses did not know what the answers of the two people were; on two of these the answers seems to be relatively the sane; on two of these Mr. King scored more highly, and on one of then, relating to initiative, Mr. King seems to have been able to project himself better. On the two questions in which Mr. King scored more highly than Mr. Lethbridge the answers sought were answers which could have been learned within about 20 minutes on the job from the forms and procedures used there and it appears that Mr. King was more familiar with this information than was the grievor. The basic question to be addressed is whether or not the selection of Mr. King violates Article 4.3 of the Collective Agreement. That section reads as follows: "In filling a vacancy, the employer shall give primary consideration to qualifications and ability to perform their required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration." This Chairman has addressed the question of Article 4.3 in a recent decision of Hoffman #22/79. In this decision much to the chagrin of Mr. Richards I decided that it was not my function to second guess the decision of a Selection Board. I did indicate in that case that if I felt that improper criteria -7- had been used or inadequate evidence presented to the Selection Board, it night be a grounds for interfering. We are unanimously of the view that in this case the Selection Board was "splitting hairs" when it chose Mr. King over the grievor. In the first place it is significant that on the original interviews the two scored approximately equally. It is significant that the one ~person who scored Mr. King significantly higher than the griever did so on the ability to get along with people. Interestingly Mr. Sagan, the Chief Attendant rated the qrievor more highly in this category, Thus we cannot see that after the initial interview there was any substantial difference between the two candidates. It will be recalled that at the second interview attention focused on only one of the criteria used at the first interview. As we have indicated we.feel that the differences perceived by the Selection Committee are ones which are not supported by the evidence. Certainly with respect to the two questions requiring. technical knowledge we do not feel that the awareness of one candidate of the contents of a particular form should be a - determining factor in whether or not that person obtains a position. Perhaps of more significance is the fact that we feel that the Selection Committee erred in selecting one of the 6 criteria relevant to the job and focusing on it exclusively in the second interview. It is perhaps interesting to note that in the first interview, in this criterion, both the grievor and Mr. King scored equally. It seems to us to be unfair to have selected out the one - 8 - criterion as more significant than the others,given that they were equally weighted at the first interview. Accordingly, we do not feel that the selection process was adequate and we do not feel that the job should have been given to Mr. King on the basis of it. Because we feel that the second interview focused too narrowly we are left with this problem. Do we send the matter back to the Selection Board with instructions to conduct a interview which covers all 6 criteria or do we accept the results of the first interview which showed(in our view)that there was no substantial difference between the two candidates and award the . job.to the grievor? This decision is complicated by the fact that Mr. King has been working in the position now since the date of the competition and is bound to have gained a considerable amount of knowledge which would give him an advantage over the grievor in a new competition. We feel that it is fairest to all concerned for us to take the position that the result of the competition, ignoring the second interview, wa's that the two candidates were substantially the same as far as qualifications are concerned. As indicated, Article 4.3 says that in this situation length of continuous service shall be a consideration. It seems to me that it would be perverse to interpret this sentence as meaning anything other than that the grievor should be given the job in this case. - 9 - Because the grievor has 6 more years seniority than does Mr. King we feel that in this case seniority is not only a relevant consideration it is determinative. In the result we allow the, grievance, award the position to Mr. Lethbridge, and trust that the Ministry will make appropriate arrangements for Mr. King. DATED AT London, Ontario n this 9th day of July, 1981. Afiik- Peter d Barton Vice-Chairman I, concur/- L/ I. Thomson Member fl - ~/j$&, concurjlll G. Peckham Member