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HomeMy WebLinkAbout1981-0553.Nicholas.82-02-18553131 IN THE MATTER OF AN ARBITR.Ai-ION Under THE CROWN E‘MPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU !Xr. Harold Nicholas’ and Crievor The Crown in Right of anta:::, (Ministry of Health) Emp!oyer Before: Mr. P. Draper - Vice-Ckairman Mr. J. Mc.Manus - Member Mrs. M. Gibb - 5lembe: For the Grievor: .Clr. G. Richards Grievance/Classification C!iicer Onxrio Public Service %np!:)‘ees U-.:on For the Employer: Mr. 3. Callas Re@onal Personnel .\dmi?.is:r?..:sr Clipistry of Health liearins December 2, 1991 -2- DECISION The Crievor, Harold Nicholas, grieves that he was unfairly ceniec appointment to the position of Ward Supervisor, Ward “D”, Oak iidge Eospitai. classified Attendant Group IV, in violation of Article 4.3 oi the Coiiective Agreement. The submission made on behalf of the Grie,;or is riat his qualifications and ability to perform the required duties are relatively equal t; those of the successful applicant, to whom he is senior in service. Oak Ridge Hospital is a Mental Health Centre at Fenetanguishene. It Consists of eight wards, divided into two therapy units, each in charge of ai Area Supervisor, classified Attendant Group V and made up of four wards. The Area Supervisors are subordinate to an Assistant Chief Attentint and a Chiei Attendant. All Attendants from Attendant Group I (trainees) to Attendan: Group IV (Ward Supervisors) are members of the bargaining unit. The Crievor , a Senior Attendant at the hospital, classifie: Attendant Group III, was one of 13 applicants for the vacancy in question, th- competition for which was posted on June 2, 1981. The Selection Committes consisted of five members, all on the hospital staff: the Chief Attendant, whz acted as Chairman, the Assistant Chief Attendant, the two irea Su?ervisors and the Personnel Officer. The questions , !6 in number, whiti. were to 5e ~3:: to the applicants were prepared by the Chief Attendant, 3ok.n Sajan, and fe.! into five categories related to the criteria for the vacsnr positix: knowledge I: position (four questions), leadership abilities (two questions), supervisory skii. (four questions), nursing skills (three questions) and security awareness (thr+,? questions). The criteria and the questions were discussed >y tne Selecti:-. * -3- Committee before the applicants were interviewed and the personr.el. files pi the applicants were reviewed for the members by the Personnel Officer before the applicants were rated. In addition to the five categories covered by ::-:e questions, three other categories were considered: qualifications (as :utiinec in the posting), attendance (from January 1, 1981) and general inpressicns (co-nmunications abilities, motivation, personal suitability, initiative ;:d persmal appearance). The maximum score obtainable in seven of ::+e categories ‘*as ten and in the other (supervisory skills) was 20. The maxim:3 possible overall score was 450. The Griever ranked fifth amongst the applicanrs wit? a score of 354 and the successful applicant, Daniel Hamelin, :eceivet a scare of 42OL Tne Crievor testified that he was hired in April, 1964 at 3ak Ridge ant was classified Attendant Group I during the usual training period sf approximately 18 months. He was classified Attendant Group II for about eight years and has been an Attendant Group III since 1974. In 1975 he completed a course in Basic Management given at the hospital. As a Senior Attendant he is in charge of a staff of three or four ~Attendants, usually Attendant Group II’s, and acts in ?he place of the Ward Supervisor in the latter’s absence, zlthough at sushi times he does not have the authority, responsibility or accountability of a Ward Supervisor. Over the period of his service he has worked in va-ious wards but Lhas not had a permanent appointment to Ward “D”. He has never had an appointment as an Acting Attendant Group IV. The current polic:< regarding such temporary appointments is that any Attendant Group III in :+.e h0soi:s.i msy be given an appointment in any ward. No member fif the Selecr:>n C,o-nmittee has ever been his immediate superior although one o: the ?;:ez Suoervisors and the Chief .Attendant are familiar with his work perfarnance. -4- Russell Vaillancourt, a Ward Supervisor at Gak Ridge for whom I-.e Crievor worked for some two and one-half years between 1977 and 19t~3, testified that the Crievor, while critical and undiolomatic on occrsion, “-2 what he was told”. There were instances when the Grievor was no: aware pi the failure of his subordinates to carry out their iluties and Mr. Vailianco~zr. “had to answer” for those lapses. He was not consulted by the Selecr:sn Committee but believes tne Crievor “could handle” the work of an .-\ttenca.?t Group IV. :Mr. Hamelin has never worked for him. Glen Goldsmith, a Ward Supervisor at Oak Ridge for whom r?e Griever worked for about one year in 1980-81, tesrified that the Grievpr’s duties were to carry out ward programs in accordance with the directions given to him. Appointments to Acting Attendant Croup IV have sometimes been made from amongst Attendant Group II’s and Xnior Attendant Zroup I%. There is no pattern to the length of acting appointments. An experiment at rotating Acting Attendant Group IV appointments amongst Attendan: Group ZI’s at short intervals was a failure. He was not consulted by the Selection Committee but would have given “a good opinion” of the Grievor if he had been asked. Mr. Hamelin has never worked for him. Daniel Hamelin did not testify at the hearing but it is comr,on ground that he was hired in August, 1971 at Oak Ridge as an Attendant Gro-:, I; his position was classified Attendant Group 11 in 1973; was Actir.2 Attencant Group III for three months in 1978; was Acting At:tndant Group IV from iqrii, 1979 to .August, 19SO; while holding that appoint;r:ent his position u zs classii:ed Attendant Group III in January, 1980 following a csmpetition; ant ‘was .-\cr:ng Attendant Group IV from April, 1951 to July! i3Yl when his s>sition ~3s - 5- I ciassified .4ttendant Groco IV as a result of the competition which is the stiject of these proceedings. He is a Registerd Nursing Assistant, having graduated irom the prescrioed course at Georgian College. John Sajan, Chief Attendant at Oak Ridge, testified that the Seiection Committee did not consider it necessary to consult Ward Supervisors about the work performance of the applicants because four of the five members had that knowledge. He tad a high opinion of Mr. Hamelin and had given him acting appointments but, as a member of the Selection Committee, was not predisposed towards him. 3e himself had been appointed an Acting Attendant Group IV while still an Attendant Group II. Length of service of the applicants was not taken into account by the Selection Committee because of its conclusion that Mr. Hame was clearly superior in qualifications and ability to ail of the other applicants. It is argued on behalf of the’ Grievor that there was excessive reiiance by the Selection Committee on the interviews and not enough on work performance, and that some prejudice, or at least some prior opinion unfavourable to the Griever, is demonstrated by the low marks given to him by Xlr. Sajan. It is not in dljute that the Selection Committee had before it the personnel iiles of all the applicants and there is no basis we can discern for the belief that they were ignored or discounted. The fact that no person who had had immediate supervision of the Griever was consulted by the Selection Committee we do not regard as a fatal defect. Four of the five imembers being ir. direct !ine of authority over him, the Selection Committee csllectively had adequate :<nowledge of h5 work performance. Further, we do not look on the recorded scores of the Cr.evor and Mr. Hamelin as indicatin: prejudice against -6- the Grievor. Overall, the Grievor’s marks fr:m the iive members of the Selection Committee ranged from 80 to 58 and tr.ase of !.I:. Hamelin from 88 to 75. Although Mr. Sajan gave the Crievor the lo-;-est of :i.e marks he received (X), it was as high as, or higher than, those he gsve to seven other applicants. !Jr. Sajan gave Mr. Hamelin the highest score (8;: he gave to any applicant, but it was lower than those given to Mr. Hamelin ?y three other members of the * Selecrian Committee. In the categories of SC.: ervisory skills and leadership abilities, the two in which the Crievor fared wars: relative to ;Mr. Hamelin, four members scored Mr. Hamelin significant!y higher than the Griever in the first and two scored him significantly higher in the second. It is put to us that if one eliminates the marks in certain categories where members of the Selection Committee varied widely in their evaluation of :P Crievor and Mr. Hamelin or, alternatively, eliminates the marks of a membr who is a “hard marker”, the relative equality of the two applicants becorrzs apparent. It seems to us reasonable to assume that widely divergent marks are no less the expression of individual judgments than are closely grouped marks, and that a “hard marker” cannot be faulted provided his marking is consistent and non-discriminatory. The representative of the Griever. referring to the favourable performance appraisals and the commendatory memoranda which formed part of Mr. Hamelin’s personnel file, propounds the .;iew thal these, taken together with the temporary appointments of !Jr. Hazelin to higher classifications, showed a predisposition towards Mr. Hamelin -which p!aced the Crievar at a clear disadvantage in the competition. We are :i the opinion that to draw the inference from the appraisals and commendari:::s thar r.?ey, or some of them: were not prepared in good faith and for the no-ma1 pur+e is not justified by any evidence we have before us. The temporar) lppoinrments zre of somewhat -7- more concern :3 us. ;.r.icle 6 sf the Callective ‘Agreement under which they were made places no limitation on the purpose, length, number or frequency of such appointments. 1: adopt ?he view put forward for the Crievor would necessitate a 2nding :.-at the temporary appointments of ik4r. Hamelin were designed to ensure his r.t!ection in any competition for a higher classification, or at least t2 give ?im an advantage over other applicants in such a competition. ‘:~e are n2t persuaded, on the evidence, that that intent can be imputed to the fmploy--. Notwithstanding that conclusion, we recognize that the latitude av<lable t; the Employer under Article 6 creates the potential for abuse. Our resction tc that reaiity can only be. that the selection process set out in Article L would nx and could not be fair, much less be seen to be fair, in any instance in which ::e rights of the Enployer under Article 6 were exercised for the purpose jf affecing the outcome of that process. There is no question of the Grievor’s technical qualifications for promotion to a? Attendant Group IV vacancy. In the competition he received the maximum score in --ilat category. The onus he bears here, however, is not simply to prove his qua3ications but to satisfy the Board that his qualifications and ability are reiative.:; equal to those of the successful applicant and that the Selection Committee eight to have found accordingly. We find, or. the evidence before us, that the Grieve: has failed to discharge the 5rden oi proof borne by L:im in the matter, and that the decision of the Selecti;.: Comrr..zee shculd not 5s disturbed. The grievar.12 is dismissed. -8- Daniel Hamelin, the successful applicant, was present at the hearing and was afforded full opportunity to participate in the proceedings. DATED at Toronto this 18th day of February, 1982. Mr. P. Draper Vice-Chairman I “I coRcur” ISee PdcdLiln) Lk. J. ?k.Manus blember ,Mrs. M. Gibb Member ADDENDUM I agree with the Vice-Chairman and the reference made on page 7. I also do not think that Article 6 ;i the Collective Agreement has the proper wording to stop any abuse of this article by those who would circumvent the Agreement by taking advantage ar: promoting those with little or no seniority into temporary appointments above their classification. This is the second or third case of this nature in as man: months. During collective bargaining I hope both the Union and the Employer! who I am sure does not want a steady steam of grievances concerning this prsblem, would negotiate into the Agreement time limits on temporary assignments or a rotation system with limits if the position is open for some length of time, so as an individual cannot be appointed from a lower classification and be left for an extended period of time in a ‘temporary assignment position’. /lb j