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HomeMy WebLinkAbout1981-0627.Mercer.82-10-28. _ ( - -- &t ONTARiO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLENENT BOARD Between: Before: For the Grievor: For the Employer: Hearings: OPSEU (Mrs. Sandra L. Mercer) Grievor and The Crown in Right of Ontario (Ministry of Consumer and Commercial Relations) Employer W. B. Rayner - Vice Chairman S. R. Hennessy - Member G; peckham G- Member Joanne Miko Grievance/Classification Officer. Ontario Public Service Employees Un 627/81 Leon Dorff Personnel Services Branch Ministry of Consumer and Commercial Relations .on March 22, 1982 The grievance in the instant case was filed on October 7, 1981 with respect to a job competition for the position Of Clerk IV in the Registry Office in Guelph. The previous title of this position was the Deputy Land Registrar. The grievor and one other applicant applied for the job. The other applicant was selected but before taking the job withdrew from the competition. -. 2- AWARD -m--e , .;: In the absence of any other applicants the grievor claims that she was qualified to do the job and'thus should have been given the job. Moreover, after the job had been posted and the two applications received processed by the Employer, the Employer decided not to fill the job and reorganize the Registry Office in Guelph. The net result of this was that the position in question disappeared. The Union takes the position that the reorganization carried out by the Employer was done in bad faith and was done to deny the grievor her rightful bBport&ity to progress by way of .q .~ ~;~- promotion., The Employer takes the position that the grievor was not qualified for the job in any event and that because of this the Employer could properly reorganize the office. Thus, the threshold issue that confronts the Board is whether the griever is qualified for the job in question. i .;: -3 - Before the Board turns to an examination or the selection process used 'With respect to the application of the grievor for the job; two preliminary matters must be canvassed. The first simply relates to the chronology of events that led up to the grievor's interview that formed a vital part in the selection process. The second matter relates to the grievor's relationship with both the Registrar, Mr. McRea‘and Mrs. Fowler, her immediate Superiors in the Guelph Registry Office. The Board wishes to turn first to the chronology of events that led up to'the grievor's interview. The grievor started.in March of 1974 in the Milton Registry Office; In February of 1975 she moved to the Guelph Office and was classified as a Clerk General Grade II. Thegrievor in terms of her education had taken an Wdministrative course at Sheridan College. She had also taken a Registration Cle@'s,course run by the government in 1977; a Civil Service course on Communications in the Spring of 1980; a Real Estate.Law Clerks course at Sheridan College in 1978: and had successfully completed various courses at the University of Guelph in both Psychology and Sociology in 1975 and 1976. We do not propose to canvass the grievor's educational r skills as those are not in issue. The Employer takes the positicn~ ~. -4- that the grievor had a satisfactofy level of educaticnai skills. The parties' filed before the Board position specifications for both'the Clerk IV General job and the Clerk.111 General job that the grievor was doing at the time prior to the reorganization. The parties also filed before the Board the new duties of the Clerk III General afterthe reorganization,but with respect to the particular issue before the Board we do not propose to review / that specification in any detail. The summary of the duties and the grievor's responsibilities while~working as a Clerk III General are set out in the position specification for that job and they adequately reflect the work that the grievor was doing. Those duties and responsibilities are summarized in the specification as follows:, Records details of all ~types of Registry Instruments 1. in Abstract Index Books, Indices and Registers by: 75% Rec&ving.a variety-of Instruments including those containing length, metes and bounds descriptions; locating previous entries for same land in Abstract Index Rooks to ensure continuity of records: entering on appropriate page of Abstract Index Book information from instrument such as: Grantor, Grantee, consideration, condensed legal description of land, easements, liens, etc; initialing instruments as,abstracted and marking such data as lot and plan number, volume and page number of Abstract Index Book; entering pertinent details of Instrument in aporo- priate Indices and registers such as By-law Index, .&posit Index; conferring with Supervisor regarding any difficult or unusual instruments and descriptions; - 5, - - providing assistance and checking abstract entries of Entry Level' Abstract Index Clerks;, - making necessary repairs to pages of Abstract Index Books or Instruments as time permits. 2. Performs. other general duties in the office such as: - Examining over 40 basic types of instruments and plans submitted for registration under The Registry Act, checking for compliance to statutory require- ments (approximately 10% of time). - computing fee, Land,Transfer Tax and other charges and collecting'same; - stamping instruments etc. (as in Senior Deputy); - entering .details of registered~ instruments (as in 25% Senior Deputy). - attending at the sea~rch counter to provide instruments, Abstract.Index Books, photocopies at peak periods. - assisting other staff to locate requisitioned items; - answering telephone, directing calls' to appropriate party or supplying routine information on office procedures; 7 typing correspondence, reports, etc., from hand-. written drafts: - as required or assigned." Similarly, the summary of duties and responsibilities set out ~for the position specification of Clerk. IV General also adequately summarize the duties of the.Clerk IV General. The -Jr?. : '. --- specification provides #at: 1. As Deputy Land Registrar: - assumes responsibility. for training new staff in office procedures: solving problems encountered by staff in their work: assigning work to ensure an adequate number of staff are available to cope with volume: assist- 45% ing staff members to locate Abstract Books or Instruments when they are unable to find entries fori specific lots: performing duties of Senior Deputy r Registrar during her absence; ensuring that office equipment is in good repair and that statiomry items are in adequate supply. 2. Examines instruments and plans presented at counter by: - i examining over 40 basic types of instruments with variations on each type to determine whether the :, - 6 - description of the land follows the relevant sections of Ontario Regulation 932; determining whether the instrument is signed by the proper parties, is properly witnessed, contains the necessary accurate and complete recitals, affidavits, consents, etc; calculating the registration fee in accordance with the schedule of fees: initinlling instr,uments, 40% collecting fee and taxes: returning unacceptable instruments presented at counter which do not conform to statutory requirements with an indication of the incorrect section(s); providing general infor- mation and assistance to Solicitors and the ,public;' receiving Reference Plans as prepared by surveyors, scrutinizing plans to ensure that they conform to the Regulations of the Registry Act. 3. Records details of Registry instruments in Abstract Index Books: - receiving all types of Instruments including those containing lengthy metes and bounds descriptions: locating previous entries for same land in Abstract Index Books to ensure continuity of ' records; entering appropriate page of Abstract Index Book information from instruments, such as: - Grantor, Grantee, consideration, condensed legal 15% description of land, easements, liens, etc; initially ing Instruments as abstracted,; entering pertinent details of instruments in appropriate-.-Indices and Registers such as By-law Index,.and Deposit Index; providing assistance Andy checking abstract entries of entry level abstract index index clerks: checking to insure that all Instruments have been abstracted .from information in the Day Book; performing other related duties as assigned and required. It is obvious from an examination of both specifications, that a great deal~f~the-recording~wo;k done'by both the Clerk III General and the Clerk IV General are similar in nature. There is a high degree of overlapping ~between the two jobs. The grievor takes .the position that because of her experience as a Clerk III General, she had sufficient work related skills. The- major difference between the two jobs would appear to bethe management function carried out by the Cler!< IV General. The summary indicates that some 45% of the Clerk IV General's time is to be devoted to training, solving particular problems encountered - 7 - by other staff, assigning work 'and assisting other staff members. In addition, the person in question had to perform the duties of the Senior Deputy Registrar during the absence of that employee. There is no dispute between the parties that the position was properly posted and that the grievor properly applied. Only two people applied for the position and had interviews. The griever's interview occurred on the 1st of September and lasted approximately one hour. On the 4th of September the grievor was told by Mr. McRae, the Registrar, that the other candidate was mores qualified and suitable for the job. Mr. McRae said he would not elaborate on qualifications and suitability but that if the grievor yanted more information she could contact Personnel. Sometime later the grievor found out that the other applicant who was successful did notwant the job. On Sepq+nber 14th, the griever, Mr. XcRae, and Mrs. Fowler, the former Clerk IV General and the Senior Deputy Registrar met. At that time Mr. McRae, according to the grievor, referred the grievor back to a conversation that he had with the grievor in Xarch. dt that time Mr. McRae- allegedly told the grievor .that he would not promote her because she ~did not have proper supervisory skills. She simply had too many-concerns both with the staff and with herself. r At that time the grievor asked Xr. McRae if suitability,was the only criterian being used and Mr. McRae indicated that that was -the case. -8- On September 17th the grievor told Xr. :JcRae that she had heard that the other successful candidate would not take ~the job. At that time, IYr. McRae indicated that the job wduld'not be filled. IMP. McRae indicated that they were going to bring in another Clerk III and rotate the various jobs in the office. :4r. McRae on his cross-examination indicated that he told the grievor that she was not a suitable candidate on September 14th. He said that he told the griever her shortcomings in some detail. During cross-examination he indicated that, in his mind, the grievor in the past showed that she resented supervision. He indicated that the grievor had a tendency to bypass ,her Supervisor and 'ignore her Supervisor,.which in this case.wae Mrs. Fowler. Mr. McRae testified that he thought that the rest of the staff was unhappy when Xrs. Fowler had been originally selected some time in the ,past for the job. He felt that LYTs. Mercer was part of a concerted effort by employees in the office to make life difficult for Mrs. Fowler. He .referred in particular to an incident over the bulletin board -- where he felt that the grievor had~been insubordinate to Mrs. Fowler and had to discuss the matter with the grievor in his office. .q...-: I. -. The grievor did not deny that there was a confrontation over the use of the bulletin board, but indicated that she felt that she was in the right with respect to that confrontation. Mrs. Fowler also testified and indicated that she felt that the grievor would not carry out her, instructions and could not rely upon her: In her .evidence, she indicated that at one point in time, after she had asked the grievor to don something, *be griever indicated to Mrs., Fowler that she could do,it herself. The qrievor I -9- did not deny this allegation. Mr. Gibbs, the Senior Deputy Director of Real Property Registration, also gave testimony on behalf of the Employer. :".r . McRae and other Registrars throughout the province report to Xr. Gibbs. He testifi~ed that both the Clerk III and the Clerk IV jobs have a technical component. However, the major difference between the two jobs is the group leader res,ponsibility of the Clerk IV job. Mr. Gibbs te&fied that Mr. McRae was responsible for the selection exercise but that he gave Nr. McRae advice when he was informed of the pending vacancy. He suggested to Mr. McRae. that 1Mr. McRae and.an immediate Supervisor plus an outsider, sit on the Interview Board. He said that he would sit on the Board, but also suggested either the use of a personnel service employee or another Land Registrar. Ultimately the Board was composed of Mr. McRae, Mrs. Fowler and Mr. Stolch, the Land Registrar in Nilton. ~-9- --.- ' ~' -. A number of questions were prepared for use on the inter- view. The first part of the interview consisted of several questions dealing with technical.knowledge. Mr. Gibbs indicated that he for- warded these questions to Mr. McRae for use. He said that he had used these in other selection panels throughout the province. The second set of questions related'to operational systems knowledge and skills. The third part related to management 'admin- istrative knowledge skills. Xr. Gibbs indicated that ?!r. ?lcRae :. _, L; ?:. :,. - 10 - set the latter two garts and devised his own questions. All three members of the Selection Board and the grievor gave testimony with respect to the interview. The interview lasted approximately -one hour. The grievor said that she felt intimidated at the interview and indicated that she had had a stormy relationship with both Nrs. Fowler and Mr. XcRae in the past. Their presence on the Interview Board presumably caused the grievor some unease. She felt that the presence of Mr. McRae and Mrs.~ Fwler; because 'of the office situation, precluded a fair and impartial interview. However, she also indicated that she felt intimidated because iMr. 'Stolch continually stared at her and often would ask after heranswer "are you sure about that". It is inter- esting to note that it was Mr. Stolch that seemed to intimidate the grievor but he was, an outsider to,the situation. The grievor also indicated that she felt that several of the questions we&irrelevant. 'She indicated that she had opportunity to ask questions and amplify her answers but that the interview itself was not fairly conducted. All three members of the Interview Board indicated that they were somewhat, surprised.by the attitude of the grievor during the interview.. dll three indicated that at times the griever inter?J?te,? the members of the Board or attempted to cross-question the members of the Board as .to the importance or irrelevancy of,certain questions. They all indicated that they \ felt this behaviour was ~inappropriate. - 11 - There was a certain amount of conflict between the witnesses called by the Employer with respect to how the grievor's score on the questions put to her was arrived at. Yr. Stolch, in particular, seemed unsure of the actual grading of the questions. For example, he could not recall what score was assigned with respect to suitability for the position. He indicated, as well, that every- .body rated the grievor 'individually and,Mr. McRae simply coordinated the scores. Mrs. Fowler confirmed that the Selection Committee arrived at their scores independently, but Mr. McRae said that the scores were arrived at by consensus. With respect to the grievor's technical knowledge/her score was passing but on the low side. The grievor indicated in her cross-examination that perhaps she should have scored higher on this aspect of the test. Mr. Gibbs testified that, in his experience, people being selected for the job in question generally had a con- siderably higher score on the technical questions. Unicinioiunadl argued, and-rightly in our opinion, that many ofthe questions in the last two sections of the interview lacked objectivity. IYrs. Fowler in her testimony indicated that she graded the questions in terms of,the detail that the grievor put into the answers. Yet another difficulty with the grading of the grievor's answers on the latter two parts of t!!e interview questions, was-the rather loose mathematical formula that >Ir. ?!cRae used to arrive at a final grade for the grievor. - 12 - ~However, in spite of.all of the probiems with the questions, certain clear conclusions can be drawn. Inthe.,first place, the grievor was given an interview land did not .score well on technical questions not tainted ~by any alleged bias, which were prepared by ,Yr. Gibbs. Secondly, the grievor was given an adequate opportunity to respond to the questions that had been prepared. One member of the Board was an outsider who had not known <he grievor before the interview. Thirdly, there is no allegation that there was any animosity between Mrs. Fowler and Mr. McRae on the one side and the grievor'on the other, apart from conflict within the Registry Office operation. From the testimony that the Board heard with respect to that conflict, both from the grievor and from the Employer witnesses, the grievor '. must bear some responsibility for ill-feeling that had arisen be- tween her and her S*,lpervisors. -UT+ H.owever., the grievor does not seem to feel that she should accept any of,that responsibility. Ber demeanor at the interview, when she cross-questioned the Interview Board as to the relevancy of the questions, and, indeed, the grievor's demeanor as a witness before this Board, shows the griever to be a Person who is perhaps too.convinced of the correctness of her actions. \ - 13 - Fourthly, we~can refer to the analysis of IMrs. Fowler with respect to the grievor's answers on questions relating to management administrative knowledge and.skills. Mrs. Fowler gave the Board the grievor's answers and analysed those answers. We do not propose to go through the questions and answers in detail, but the conclusion reached by Firs. Fowler was that the grievor ^ .tended to‘ignoreinstructions or attempt to circumvent the normal supervisory chain. Although we accept Union counsel's contention .that certainly Mrs. Fowler,,was not in a'mood to give the grievor the benefit of any doubt, nevertheless, we feel constrained after ex- '~amining the evidence of both Mrs. Fowler and the grievor, to conclude that Mrs. Fowler's observations are more likeiy to be accurate than not. Finally, it must be remembered that the job in question does have a large e1emen.t of supervisory responsibility,in it. The question is'not.simoly whether the griezor can adequately carry out ~-9 '- I the,technical p.arts of the job,but whether the grievor can do that as well as carry out the supervisory duties of the job. It is simply not possible for this Board to ignore the evaluations made by the grievor's Supervisors with respect to her on-the-job performance. These evaluations were not made in terms t of any particular disciplinary response, and do not, of course, . - 14 - form part of any disciplinary~record. Nevertheless, the evaluation of the grievor by her immediate supervisors cannot be ignored, particularly when one aspect of the job in question relates so directly to the grievor's relationship to other ,in the chain of command. Nor can the,evaluation of the Supervisors be ignored simply because the grievor alleges that they were biased against her. The alleged bias is, in the grievor's mind, proven because of her altercations with both Mr. McRae and ~Yrs. Fowler. However; that reasoning is circular. The acts that the grievor complains'of to establish bias, . in fact, form part and parcel of the acts that, the Employer complain of to show. that the griever lacks the supervisory skills required by the job. The importance of supervisor opinion when making a selection for a position, particularly when the position requires supervisory skills, was emphasized in the Quinn Award (g/78) (Prichard). In that particular case, the Board concluded that questions put to a candidate on an interview to determine supervisory ability, were not, by themselves, an adequate substitute from review of the candidate's record by means of personnel reports "and the ': opinions of the c%didate's supervisors". In this particular case, the grievor would have us disregard the opinion of her Supervisors. This the Board is unprepared to do. Although there is meritin the Union's submission with respect to the subjectivity and looseness of the questions prepared by Mr. McRae for the interview, the grievor's Supervisors, Yr. YcRae and Mrs. Fowler, both testify that the grievor has not adequate supervisory ability. Even if one disregards the .grievor!s score . - 15 - on~the questions relating to that aspect of the competition, one is still left with the Supervisor's assessment. In result, therefore, this Board must conclude‘that the grievor has been unable to establish that the assessments of her supervisory ability made by her immediate-Supervisors, is incorrect. Although the griever's relationship with her Supervisors~may properly. .be described as "stormy", a word that the grievor used, this Board is not satisfied that that stormy relationship resulted from any bias on the part of the Supervisors. Rather, it would appearthat the unease of'the relationship, if one can use so mild a term, resulted more from the grievor's actions than the actions of the Supervisors. Accordingly, we dismiss the grievance. DATED this 28th day of October, 1982. W. B. Rayner i iq -.. 3 - "I concur" (see Addendum) S. R. aennessy, Xember 5:2000 6:3000 6:3240 ADDENDUM I have concurred in the assessment of this Board. that the griever has, on the evidence before us, been unable to establish that the assessments of her supervisory ability made by hersupervisors were incorrect. However in so doing I also wish to express my concern again about in these cases. the-nature of selection boards utilized In my opinion and keeping in mind my comments on this kind of problem in'my addendum in215/79 Cooper the same sense of injustice is left in this Casey. October 6th;-l%2 /ab