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HomeMy WebLinkAbout1981-0582.Robinson.82-04-20IN THE MATTER OF AN XBITPATION Under THE CROWN EMPLOYEES COLLECTIVE SARGAINING ACT &fore THE GRIEVANCE SETTLEMENT BOARD Setween: Before: For the Grievor: For the Employer: Hearinys : Elarch 2 and 23, 1962 OPSEU (aarbara Robinson) - And - Grievnr The Crown in Right of Ontario (Ministry of the Attorney General) EiEplOyer .R.J.. Roberts Vice Chaiman S. Schachter Hember W. A. Lobraico Member G. Richards Grievance/Classification Officer Ontario Public Service Zmployees U-ion 0. C. Pitkin, Deputy Director Supreme, County, District and Surxcate Courts ?.linistry of the At~torney General -2- AWARD In this case, the grievor claims that she should have been preferred over a senior candidate in a job competition which she entered. The Union submitted on her behalf that because she was passed over, the competition was unfair, unjust and contrary to the Collective Agreement and that the grievor should have been awarded the position in question. The Employer contested these submissions. It was submitted on behalf of the Employer that the selection procedure was reasonable in all respects. The result of this procedure, according to the submission of the Employer, was that the grievor and the successful candidate were very close in terms of relative qualifications and ability to do the job in question. Accordingly, the Employer submitted, the Employer was in accordance with the requirements of the collective agreement, Article 4.3, in deciding in favour of the more senior candidate.* Upon due consideration of the submissions of the parties, we conclude that the grievance must fail. The selection procedure seems to us to have been, on the whole, fair and in accordance with the Collective Agreement, in the sense that the competition ensured "that sufficient relevant information [was] adduced . . . in order [to permit] . .." a thorough and fair assessment of the candidates.** It seems to us that based * The successful candidate, Mrs. E. Nartinez, was notified of her right to be represented in the hearing in this matter and she did, in fact, attend and give evidence at the hearing. ** Re Quinn and Ninistrv of Transportation and Communic3tions, (Dec. 13, f979), G.S.B. #9/78 (Pritchard), at 7-8. .- - -3- upon this information, ,the Employer was justified in concluding that the more senior candidate ought to have been awarded the position. This grievance involves a job competition for a Clerk 4, (Accounting) position at the Registrar's Office of the Surrogate Court in Toronto. This office is not large. Apparently, at the time the position became open --December, 1980 -- the office ~ had positions for about 15 employees. Later, the size of the office was reduced to about 11 permanent positions as a result of a reorganization instituted by a new Registrar, Mr. Robert Geddes, who took office on March 20, 1980. Generally the Accounting Clerk position in this office involves in the main (70% of the job) dealing with money transactions and basic bookkeeping entries with respect to these transactions. The other part of the job (30%) &nvoives assisting counter clerks at the public counter in receiving various documents for filing, etc., at the Surrogate Court. The Accounting Clerk position in question apparently became opendue to the retirement of the person previously in the job. The successful candidate, Mrs. Martinez, was temporarily posted to this job about two weeks before the actual retirement date of this person in order to ,allow the latter to take vacation time which was coming to her. Mrs. Martinez had performed the Accounting Clerk's functions in the previous summer, for about two weeks, when the Accounting Clerk had been away on vactation. This temporary posting continued until the results . ._ - 4 - of the competition became known, at which time Mrs. Martinez became the permanent Accounting Clerk. The posting for the Accounting Clerk position closed on December 19, 1980. Apparently the opening was adve??&ed on a sekcewidebasis.It appeared for example in the December 5, 1980 issue of Topical. As a result, there were many applicants from a variety of different offices within the Government, as well as from within the Registrar IsOffice of the Surrogate Court. The grievor and Mrs. Martinez were among these applicants.~ Ms. Sharon DeRose, a Personnel Officer in the Ministry of the Attorney General, consulted with Mr. Geddes in formulating the selection criteria and rating sheets for the competition. She also assisted him in screening the applications. Finally, she and Mr. Geddes constituted themselves as the interview panel for the position. The interviews were conducted in early February. The grievor, however, was not among those interviewed at this time. Apparently there was some confusion with respect to the status of her application. Through a mix-up in . communication, Mr. Geddes had been given the impression that-she had withdrawn from the competition. ?loreover, at the relevant time, i.e., at the time the interviews were being conducted, the grievor was not available to correct this misimpression. There had been a death in her family and she was away from work.on bereavement leave. - 5 - The matter was cleared up on the griever's return. Apparently, she called Sharon DeRose and notified her of her continued interest in being interviewed for the 'job. MS. DeRose testified that at that time she and Mr. Geddes already had reached a preliminary decision that Mrs. Ilartinez was the leader among all the other candidates who had been interviewed. She informed the grievor that they did have a successful candidate in mind. Nevertheless, upon having the original misimpression regarding the status of the grievor's application corrected by the grievor, she and Mr. Geddes readily agreed to interview the grievor. This interview occurred in late February, 1991. Both Mr. Geddes and Ms. DeRose testified that after the interview with the grievor, they felt that they had another contender for the position who would have to be evaluated against Mrs. Martinez in a second round of interviews. At this point, it seems, Ms. DeRose had scored the grievor s!.ightly ahead of the incumbent, Mrs. Martinez. It seems that on Mr.. Seddes' score sheet, the reverse was true. Ms. DeRose then set about fashioning a new, more specific, set of questions to ask in the second interview. She testified that this was not an easy task. On the one hand, she wanted to design questions which were more specific to the qualities essential to the job: on the other, she wanted to be sure that the questions that she designed did not in any way give to Mrs. Martinez an advantage based upon the fact that she had been occupying the Accounting Clerk position on a temporary basis fqr some months. -6 - In attempting to walk this particular tightrope, Ms. DeRose first identified the qualities that she, in consultation with Mr. Geddes, believed to be most pertinent to the Accounting Clerk position. These qualities were accuracy, arithmetical-ability, detail, persistence, tendency to be systematic, organized, jacic knowledge and ability to seek help. These various qualitie; were weighted as to importance and then questions were designed, again in consultation with Mr. Geddes, in an effort to test for these qualities in the two competing.candidates. A considerable amount of testimony was elicited at the hearing regarding the reasonableness of the relationship between these questions and the abilities sought to be identified. The end result of all this, to our minds, was to show that the questions were as reasonably related to these qualifications as might be expected, given the limitations of human ingenuity and time. It seemed to be agreed between the parties * that the qualifications selected by Ms. DeRose and Mr. Gedd=s were reasonably, related to the requirements of the Accounting Clerk position. After the results of the second set of interviews were tallied, the scores of the griever and IYrS. Martinez were Close. Mrs. Martinez was scored slightly ahead of the griever, however, the d~ifference appeared to be marginal. After a little more than a week had elapsed, the grievor was informed that the -1 . . I . - 7 - permanent Accounting Clerk position would be going to mrs. Martinez. At the hearing, the case for the grievor appeared to rest on two bases. First, there was considerable evidence adduced to show that the bookkeeping and accounting experience. of the grievor was vastly superior to that of the successful incumbent, Nrs. Martinez. Secondly, the Union introduced into evidence the results of the grievor and Mrs. Martinez on the~Civi1 Service Commission General Clerical Test, which was an aptitude test that both apparently were required to take in order to be placed.in permanent positions within the Civil Service. The grievor and Mrs. Martinez took this test at different points in the year 1979. The test results showed that in the Numeric section of the test, involving questions designed to assess speed, accuracy and mathematics ability of candidates, the grievor scored much higher than Mrs. Martinez. The Union primarily relied on the divergent results in the General Clerical Test. The other ground, the superior accounting background of the griever, apparently was not emphasized to a great degree because of evidence showing that the bookkeeping involved in the Accounting Clerking position is of a basic nature andafurther showing that the grievor possessed such basic accounting skills prior to taking her initial position ,with the Registrar's Office of the Surrogate Court. - a - With respect to the General Clerical,Test, the Union submitted that Mr. Geddes and Ms. DeRose erred by not reviewing these test scores and using them as part of their evaluation of the relative abilities and qualifications of these candidates to do the job in question. (Both Mr. Geddes and Ms. DeRose conceded in their testimony that the test scores in question did not play any part in their decision making.) The Union submitted that with respect to some of L the essential qualifications that the Employer was testing for, these questions were much more,relevant and more scientifically designed than those asked in the interview. The Union further submitted .that if this information had been taken into account, the grievor would have come out ahead of the incumbent by a significant margin,~ and therefore be entitled to the position. We do not, however, find any error in the Employer's failure to take into account the scores achieved by the competing candidates in the General Clerical Test. .This test is, as its name implies, a general test given to all applicants for clerical positions in the Civil Service. Mr. Eric Copeland, the Supervisor of Testing for the Civil Service Commission, testified at the hearing th.at the test merely indicates~ potential and not whether the candidate can or will use that potential. He further stated that the test is only one aid used in selecting people for the Civil Service, Finally/he testified that rarely does he get a call for a Clerical Test score from any Ministry of the Government which is considering competing applicants for promotion, In . . -9- these circumstances, we would be hesitant to find that there, is a duty on the members of promotion panels to request the test scores of candidases on the individual sections of the General Clerical Test or.other similar tests for other series of jobs in the Civil Service, and consider those scores in evaluating the candidates. Certainly, we find that no such duty existed in the present case. Article 4.3 of the Collective Agreement provides that "[wlhere qualifications and ability ito perform the required duties] are relatively equal, length of continuous service shall be a consideration." Here, the candidates for the Accounting Clerk position appeared to be, on review by the Employer of sufficient relevant information, relatively equal. We do not find any significant defect in the process of assessment used by the Employer. Accordingly, the Employer acted in accordance with Article 4.3 of the Collective Agreement when Mrs. Martinez, the senior applicant, was awarded the position of Accounting Clerk. The grievance is dismissed. DATED at London, Ontario this 211% w 3.;. ?.oberis Ti;ce C::airzan - 5. a.. Lokraico :.:eder Re: 582/81 Barbara Robinson The employer's evidence in this case included significant testimony on its efforts to prevent one of the candidates from gaining an unfair advantage in the competition for the permanent appointment by virtue of her acting appointment. While the employer's success in these efforts is not without some doubt, it is to be commended for those efforts and for its recognition that candidates must be assessed on the qualifications they possess at the time the vacancy is created and not on subsequently acquired qualifications. Hopefully this principle will now be uniformly applied by all seiection boards throughout the government service. In conclusion I concur with the chairman's decision that the qrievor in this case has not established her superior qualifications and therefore given her lower seniority her grievance must fail. S. Schachter .M.eirker