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HomeMy WebLinkAbout1982-0230.Craigwell.83-06-06,_ ._.. c -x ONTA!+O CROWN EMPLOYEES GRlEVAilCE SETTLEMENT BOARD IN THE MATT,ER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: 0. CraigwTll -and- The Crown in Right of Ontario (Ministry of Revenue') Before: M.I;. Saltman - Vice Chairman S.D. Kaufman - Member H. Roberts - Member For the Grievor E.J. Shilton Lennon, Counsel Cavalluz,zo, Hayes & Lennon For the Employer R.bl. Gordon Labour Relations Advisor Ministry of Revenue Hearings November 22, 1982 January 4, 1983 Toronto, Ontario In this'case, the Grievor, Orleen Craigwell, allegesthat she was improperly denied a promotion which was given instead, to Lesl'ie' L . Sin~gh who was hired from outside the public service. The Board was adv However, he d The sed that,Mr. Singh was given'notic,e of the hear,ing. d not attend. fact,s Ian this matter are relatively straightforward. The Gri~evor has been employed with the Corporations Tax Branch of the Ministry of Revenue since 1969. At the relevant time, the Grievor was employed in the Accounting Operations Section as a Senior Interest and Penalty Assessor'which is classified as a Clerk 4, General. In December, 1981., the Employer advertised,a vacancy for the position of Unit Leader, Interest and Penalty Assessor, which is the position previously occupied by the Grievor's supervisor, Gladys Morrison. The job became~vacant when _. .“ Ms. Morrison retired. The Unit Leader, who is classified as a Clerk 5,~ Genera,l,, reports directly to the Supervisor of Accounting Operations, Ken Bone. The Interest and Penalty Unit~is responsible for the calculation of interest and penalty charges on tax assessments, verifications of refunds and prepara,tion of reassessments, all under the Corporations Tax Act. The. Unit Leader's main responsibility (which accounts for 70% of the Unit;Leader's time), is to supervise the Interest .and Penalty Unit 'by'(.l) assign,ing work to ,the Interest and Penalty Assessors and to the Refund Clerk; (2) advising the Interest and Penalty Assessors in the 'performance of their duties, -3 - which involves giving technical advice on interest and penalty cal- culations and assessing the accuracy of the calculations performed by the Interest and Penalty Assessors; (3) training Senior Interest and Penalty Assessors; and (4) general supervisory responsibilities such as arranging overtime, holidays and other leaves; recommending promotions and transfers; administering discipline and resolving personnel problems. The Unit Leader also reports to the supervisor and deals with personnel in other sections, particularly the Tax Auditors. There were six applicants for the job in question, including the Grievor and the successful applicant, Mr. Singh. The other unsuccessful applicants did not grieve. The Grievor has had experience with the Ministry as a File Clerk, a Refund Clerk and, most recently, as a Senior Interest . and Penalty Assessor. In the latter position, the Grievor prepared complex interest and penalty calculations and reassessment notices under the Corporations Tax Act and assisted the Unit Leader, MS:. Morrison, by (1) checking the accuracy of the calculations performed by other Interest and Penalty Assessors; (2) training new Interest and Penalty Assessors (including Senior Assessors, which is the responsibility of the Unit Leader); and (3) relieving in the performance of the Unit Leader's duties, such as the assignment of work and preparation of production reports, in the Unit Leader's absence. The Grievor also was involved in the preparation of a procedures manual for the Accounting Operations - 4 - Section based"on the Corporations Tax Act ,a~nd in 1976 acted as Unit L.eader for a special billing group formed to clear u,p' a large .backlog of 'a,ssessments (which included the training ,of casual employees).. According to her performance appraisals, the Grievor has superior'leadership qualities. ., .~ The successful applicant, Mr.. Singh, had no prior experi- ence in the civil. ser,viFe. However, he did have considerable supervisory experience with two companies for a,total of six years. 'He also had accounting experience which the Grievor evidently was lacking (notwithsta,nding~a course.in basic accounting which she completed in 1981).- His last job prior to joining the civil ser- vice, which l,asted about. six months, involved.the.supervision of approximately 20 Production employees. The ap,plica-tions-:for the job of Unit Leader were reviewed,by a Selection Board comprised of Mr. Bone; Mr. Bone's The supervisor, Mr. Gabot; and Ms. Marsten, a personnel officer. Selection Board conducted interviews with all of the applican ts. In the course of these.interviews, a test was administered consis- ting of a series of questions on supervfsory.skills supplemented by questions on the technical aspects of the job: The Employer produced only the test scores of Mr. Bone who rated Mr. Singh the highestamong the job applicants; the Griever was rated fifth on Mr. Bone's scoring. The scores of the other two members of the Selection Board were not submitted in evidence although the Board was advis,ed that they rated the.incumbent higher than the Griever. Subsequently, after checking Mr. Singh's references,~ the Employer awarded him the job. -5- The Union claimed that the test results must be discounted in assessing the relative abilities of the job applicants. Further, the Union submitted that since the Grievor, who was a member of the bargaining unit, was relatively equal in ability and qualifica- tions to the successful applicant, she ought to have been awarded the job. The Employer, on the other hand, claimed that the success- ful applicant was entitled to the job since he was demonstrably superior to the Grievor in ability and qualifications. The issue to be determined is whether the Grievor ought to.have been promoted to the job of Unit Leader, Interest and Penalty Assessor. In order to determine this matter, it is necessary to consider Article 4.3 of the collective agreement, which reads as follows: "In filling a vacancy, the Employer shall give primary con- sideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service,shall be a consideration." Article 4.3 establishes a competition between job appli- cants in which length of service iS considered only if the qualifi- cations and ability of the job applicants are "relatively equal" (eig. Re United Automobile Workers and Westeel Products Ltd. (1961), 11 L.A.C. 199 (Laskin)). In the instant case, the successful applicant was hired from outside the public service and. therefore, had no continuous service to his credit. Accordingly, the Grievor surpassed the successful applicant in length of continuous service. Therefore, if the Grievor is relat ively equa 1 in ability and - 6 - qualifications to the successful applic'ant, ., the grievance must succeed*. 1. The onus,of.p~ro~ving relative equality rests with the Grievor. In order to satisfy this onus, the Griever must prove "substantial" equali.ty with the successfu.1 .appli,cant. If this canbe proven, .the grievance w,ill succeed even if the Employer,has acted r.easonably and in good faith. At one time it was considered sufficient.,for an arbitrator to determine whether or not an employer has ac.ted reason- ably and in good faith in awarding a job promotion. However,. this view was modified by the Ontario~ Divisional Court in the cas'e of fi Great Atlantic & Pacific Cd. of Canada Ltd. and Canad'ian Food & Allied Workers, .Local 175 (the "Great A & P" case) (1976),'13' L.A.C.(,2d)211n, 76 C.L.L.C. para. 14,076, p.‘332, ~which diricts the arbitrator to determine whether the employer correctly applied the terms of the collective agreement. This means that under thi's' collective agreement, the Board must determine'the merits of'the Grievor's claim, i.e. whether the Grievor wasrela~tively equal in ability and qualifications to the successful ~applfcant**. The Employer acvini’stered a test to determine the ability and qualiffcations of the job applicants. .There is nothing wrong with an employer relying on tests to assess the abi-lity and * The parties agreed that~ persons outside the public service are eligible to apply for job vacancies within the bargaining unit and that these persons may be compared on an equal basis with employees in the bargaining unft. ,.. ' ** While different views as the effect of the decision in Great A & P seem to have been expressed by the Board in the Hoffman case. G.S.B. File 22/79, those views acre obiter dicta, i.e. statements which are not necessary to the Boar-award. The correct view of the Great A & P case is suet forth in this award. - 7 - qualifications of job applicants, provided the tests are relevant to the job to be performed and are fairly applied (e.g. Re Oil, Chemical & Atomic Workers, Local g-14, and Polymer Corporation Ltd. (1969). 19 L.A.C. 386 (Weatherill); Re Canadian Brotherhood of Railway Transport and General Workers and St. Lawrence Seaway Authority (1972), 23 L.A.C. 156 (P.C. Weller); Re United Automobile Workers, Local 35, and Canadian Filters Ltd. (1971). 21 L.A.C. 219 (Weatherill)). In this case, the Employer relied on a standard test of supervisory skills suppl~emented by questions, which were formulated by Mr. Bone, about the technical aspects of the job. Each candi- date was given the same test which, it would appear. was fairly applied. Nevertheless, it would seem that the test bore little relation to the job to be performed. As previously noted, the test concentrated on supervisory skills. Although the job of Unit Leader, Interest and Penalty Assessors, involves the performance of supervisory skills. the evidence would indicate that these skills are not performed in a vacuum. but are performed in relation to the work of the Unit, i.e. the calculation of interest and penalty charges and refunds under the Corporations Tax Act. How- ever , the test which was administered was of general application and had little connection to the work in question, i.e. super-vi- sion of the Interest and Penalty Unit. For this reason, it would seem that the test was not a valid indicator of the abi.lity and quali- fications of the job applicants. .L . ,- 8 - In fact, the test results would support this conclusion., ,: The evidence establishes that the successful applicant ,had considerable supervisory experience, but no experience in the technical'aspects of the job. .The Grievor, on the other hand, had experience in the ', technical aspects of the job but no real supervisory experience (although she had given advice and' direction to other employees'and had some experience in the- training of new employees). Nevertheless, the successful applicant scored higher than the Grievor on both the supervisory and technical aspects of the,test. In particu.lar.~ the successful applicant scored higher than the Grievor (at least on Mr. Bone's scores, which were the only,ones submitted in evidence) on familiarity with the legisla,tion Andy experience with the procedures manual. Although it is probable in light of his experience that the successfu,l applicant would surpass the Grievor,on those questions '~ measuring sup,ervisory skills, it is improbable, based on his lack of experience with the Corporations Tax Act, tha~t the. successful appl,i- cant would also~ surpass thee Grievor on technical ques,tions dealing with the legislation and the procedures manual <which is based thereo'n. The explanation offered by the Employer is that Mr. Singh had researched the Corporations Tax Ac~t in preparation for the interview. In the Board's view, it is remarkable that anyone could master the Corporations Tax Act [which is a complex, piece of legisla- ~tion),merely by reviewing its provisions. It is even more.remarkable that by "cramming" he could surpass.someone with considerable experience in working with the Corporations Tax Act. Nevertheless, : this is what the test scores indicate. Clearly, therefore, the test scores are unreliable since they fail to discern between individuals who have had experience with the Corporations Tax Act and those who administered wa's supposed Unit Leader. have not. This may be due to a number of factors. Either the Selection Board used different standards in scoring the test (which is not unlikely since there was no discussion of scoring before the test was ) or the test was invalid since it did not measure what it to measure. name 1Y. competence to perform in the job of On either basis , the test cannot be relied on as a measure of performance in t.he job in question. - 9 - , What can be relied on in this case? The Employer has established certain qualifications for the job which are set out in the job posting. These qualifications include general supervisory skills as well as knowledge of the relevant sections of the Corporations Tax Act. As previously stated, Mr. Singh has had consider- able supervisory experience with a variety of companies. On the other hand, the Grievor, having never been in a supervisory position, has no recognized supervisory skills except for some direction and trai- ning responsibilities. (Although there was no complaint about the way the Griever carried out her trainfng responsibilities, there was some complaint about her ability to get along with other employees. In fact, there was evidence of resentment toward the Grievor by two other employees. The Grievor did not dispute this evidence but claimed that this resentment had been overcome.) The Grievor also had considerable experience in the work of the Unit, i.e. in the prepara- tion of interest and penalty calculations whereas Mr. Singh had had no experience with the Corporations Tax Act or with the other techni- cal aspects of the job. In these circumstances, it is impossible to conclude that the incumbent was substantially and demonstrably superior to the Grievor in ability and qualifications. Therefore, . . . . -’ -lO-. it must be.concluded that the Grievor is at least relatively equal to the successful applicant. In view of the Grievor's,continuous service in the bargaini,ng unit, the Board finds that she has established her claim in preference totthe incumbent. It is not clear, however, that the Grievor should be awarded the job since there were other ap,plicants who may have been qualified for the job. Even though these other employees did not grieve, the Board cannot~'tonclude that the Grievor ought to have been awarded the job in preference to these employees. Accoidingl,y. the 'Board is obliged to remit the matter to the Employer for a fresh determination'on'the job posting. (See Re Falconbridge Nickel Mines Ltd. and United Steelworkers of America, I19731 1 O.R. 136, 30 D.L.R.'(3d)412 (Ontario Court of Appeal).) Therefore, the Employer is directed to reconsider the relative equality of the job appli- cants on the original job posting and to appoint th,e Grievor or one of the other applica,nts,~with equivalent service who is relatively equal in abi.lity and qualifications to the Grievor or who surpasses the 6r ievor in ability and qualifications, regardless of service, ii accordance with Article 4.3 of,the collective agreement. This would exclude the incumbent who has less service than the Grievor and whom the Board finds to be no more qualified. The determina- tion of relative equality among job applicants is to be made by a new Selection Board as of December 31, 1981, the dat,e"of the job posting. The Employer is direc.ted to constitute a new Selection Board only to ensure that there is a fresh d,etermination on the matter. The Board retains jurisdiction in ~the event that ~there ar,e I - 11 - difficulties in applying this award and to deal with the matter of compensation. DATED AT TORONTO this 6th day of June, 1983. M.K. Saltman Vice Chairman "Addendum" (see attached) S.D. Kaufman Member II. Roberts .- Wember - . . 5:2510 6:3220 6:3340 6:4100 . . ADDENDUM I cannot disagree with the decision to remit the matter to the Employer for a fresh determination on the, job posting.: However, I feel compelled to draw attention to two considerations: a) no other applicant except the Grievor; Orleen Craigwell, grieved the results.of this competition; b)~ this Board, under the circumstances, was unable to resolve the very:issue that~the.Grievor wanted addressed i.e. should she be given this job? The case of~Regina~v. Ontario Public Service EGployees' Union, et, (1982) 35 O.R. (2d) 670, &own as "Zuibrycki", determgned that then Grievance Settlement Board has the power' to grant a job to an un- successful applicant urider its authority under S. 18(l) of The Crown Employees' Collective Bargaining Act. 1972 R.S.O. 1980, C. 108, to "decide'the mat~ter" .I in appropriate circumstances. ,. In that base the circumstances in which it was deemed ap- propriate for the Board to decide the matter were, to paraphrase, a) the passage of time since the original competition made an accurate ye-run of the original competitions almost im- possible; b) the.Employer's relations with the Grievor caused the Board to doubt whether the Employer could conduct a fair competi- tion; c) the other ;Ippli,cants with more seniority than the Grievor had forfeited their claims because "they had not raised them in a timely fashion by grieving as the Grieve? in this . . . . 2 - 2 - . . . case did"; d) the Employer had withheld evidence of its conduct during the competition. In this case, this Board could not find that the totality of the circumstances warranted the exercise of that discretionary power under s. 18(L). However, the relationship between the Grievor and one of the members of the selection panel, the fact that no one else grieved, and the inability of the Employer to adequately explainhow the scores of the individual panel members were arrived at, bring the elements of this case disturbingly close to elements b). c) and d) above. Nevertheless. because of differences as between this case and Zuibrycki, the bottom line is that the Employer must now go to the time and expense of re-conducting the competition, and the Grievor must re-submit herself to the competition process and the delay and anxiety that that entails. This does not appear to be a satisfactory resolution of the matter for either party, nor does it appear to be particularly con- dusive to good labour management relations. The parties are to be encouraged in this case to seek a satisfactory resolution of the problem in the interim. I S. D. KAUJ?MAN 'Member