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HomeMy WebLinkAbout1982-0333.Grayston.83-01-27Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (James Robert Grayston) Grievor - And - The Crown in Right of Ontario (Ministry of Citizenship and Culture) Employer R.J. Roberts Vice Chairman I.J. Thomson Member K.W. Dreston Member For the Griever: P.A. Sheppard Grievance Officer Ontario Public Service Employees Union For the Employer: R. Itenson Senior Staff Relations Officer Civil Service Commission Hearing: November 9, 1982 -2- In this arbitration,' the grievor claimed that the Employer violated Article 4.3 of the collective agreement when, in "a competition for a position which'was posted and advertised, the Employer selected a female applicant from outside ~the bargaining unit instead of the grievor. The Union made two submissions: first, that if Article 4.3 had been properly applied the grievor would have been the successful applicant: and, secondly, that in any event an unfair selection procedure was used and the competition should be re-run. Upon due consideration of the evidence and argument submitted regarding these two contentions, we conclude that the ~grievance must be dismissed. On October 22, 1981, an opening occurred for a Promotions and Public Relations Officer at Old Fort William, a provincially operated historic site in Thunder Bay, Ontario, This was one of the senior positions in the administration of Old Fort William.. The successful applicant would become a member of 'the management team. . It fell to the 'General Manager of the Fort, Mr. William Lee, to find a person to fill this opening. Mr. Lee had considerable familiarity with the nature of the job -3- . and the 'qualities' that- would' best- ,sul't, 'an i&ci&&ent. He had been the General Manager of the Fort even before it opened to' the public in 1973, and had been involved in staffing all of the senior positions on the management team. Further, between.1973 and 1975, which was before the Fort was authorized to have a Promotions and Public Relations Officer, Mr. Lee had himself been required to perform the core of the duties assigned to this position. When the position was created, he helped draft its position specification. Mr. Lee contacted the Personnel Branch of the Employer for assistance in forming a selection conunittee. It was decided that the conunittee 'would be comprised of Mr. Lee as Chairman; Armand ~Weber; the Program Co-ordinator at the Fort and the 'second in command: and a representative from the Personnel Branch. Mr. Lee presented this Committee with a number of selection criteria that he had drafted. The others then examined the criteria and made modifications to include their input and assure conformity to Ministry policies. The committee ended up with 12 categories of selection criteria. These were as follow: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. . 12. -4- Experience in public relations, advertising or med~ia; Administrative, budgeting forecast and budget control exper'ience; Experience in design'ing.-exhibits, displays, layouts, advertisements, etc.: Experience and training in writing, editing and speaking (publications and awards); Experience and training in researching, planning, developing and auditing promotion programs; Involvement with volunteer and community groups, interpretive programs, historic sites, parks, etc. ; Knowledge of journalism or related fields; Personality, appearance, attitude, motivation, and communication skills: Experience in photography; Stable progressive work record and supervisory expefience ; Knowledge of French and other languages; Other desirables, i.e., knowledge of local area of Fort William and the Northwest Company, interest in history, typing. The committee weighted these criteria in relation to their importance to the job. The criteria and their weightings were then incorporated into a rating sheet. By using this sheet the conunittee was able to rate numerically the individual candidates as they were interviewed. There were 140 applicants for the job. The job had - 5 - been widely advertised both 'within and without government service. There was a reason for this. The job was a "targeted" position under the Affirmative Action Program of the Government of Ontario. Mr. Lee explained in his testimony that jobs in wh%ch women are under-.represented are singled out for particular attention. It is incumbent upon those seeking to fill a "targeted" position to ensure that as many female applicants as possible apply, that the interviews are conducted fairly, and that no !'sexist" questions are posed. The 'focus of the'~program, Mr. Lee.emphasized, was upon recruitment of an adequate pool of female candidates. He stated that in then 'actual selection procedure, no female candidate is given an advantage over any male candidate. The'committee~ whittled down the field of 140 applicants to a total of 22 candidates for interview. The interviews were conducted from January 5, 1982 to January 18, 1982. Both the grievor and the successful applicant were interviewed on the first day. Their interviews were about 45 minutes 'long. The procedure that was followed was the same in'every case. Prior to the 'interview, each candidate was given a -6- job description .and a list of fringe benefits. The interview was then initiated by one of the members of the selection committee asking thecandidate if there was something that he or she did not underst-and. All of the candidates were asked the same questions. These questions were designed to elicit responses' whichwere relevant to the 12 categories on the rating sheet. Each member of the committee took notes during each interview,.' wafter the completion of the interview, the members of the connnittee discussed each category and agreed on a common score. This took about 15 minutes. At the 'hearing, the 'g.rievor stated that he thought that his interview went well. He said that the members of the selection committee were very friendly, open and responsive. He believed he had developed a dialogue with them. He was given ample time to answer their questions. Each member of the committee appeared to be very attentive. ,. There were, however, some deficiencies that the grievor stated~he observed. He said that during his entire interview he did not notice that anyone was taking notes of his responses. Further, he stated that he observed that there were no marks made on what appeared to be rating sheets beside the two committee members on either side of him. He also stated that three areas that he believed were important to the -7- job were not addressed in the interview. These were communication planning: budgeting: and, policy development. He said that from the description of the position in the advertisements he had read, these were areas that seemed to be important aspects of the job. There was one other area in which, according to the grievor's testimony, the selection committee was deficient. The grievor stated that at no time was he advised that the position in questionwas "targeted" position under the Government of Ontario's Affirmative Action Program. No mention of this was made in the advertisements that the grievor read, No mention of this was made by any member of the selection committee during the'grievor's interview. The grievor indicated that if he had known the position was "targeted", he would ha've discussed that point at the outset of the interview. He stated that if he did not receive a fair response from the' committee, he would have disqualified himself. He stated, however, that he still would have applied for the job. The grievor was surprised when he learned a few weeks later that he did not get the job. He knew that he possessed very attractive qualifications and had performed well at the interview. He had several years"seniority with the Ontario -a- government. The way ti which he learned that he had not been the successful applicant caused him considerable disquiet. The grievor learned that someone else got the job in the foilowing way. On January 21, 1982, the grievor was about to leave for vacation. Because Mr. Lee had told him at the conclusion of~his interview that the decision would be made toward.'th 'en'* of ,January, he called Mr. Lee to advi'se him of where he could be reached while he was away. Mr. Lee responded that the selection had, been made. He named the successful candidate and told the grievor that she was from the private sector. The'griev-orma~de‘ndte,sof theconversation. He testified that according to the'se ~notes, Mr. Lee said.that-the' successful applicant "was ~from the private sector. She worked for London Life in Thunder Bay. I asked what were the qualifications she had that made her better then me. Mr. Lee said that she had a degree in journalism, worked in London Life*s promotions department, had a number of years in tourism, Andy had written articles on the Fort. He also stated that he knew her personally, although she had never worked dt the Fort. He added that they had just received a reference check from her supervisor and it was excellent." -9- It seems to be doubtful that this grievance would have been filed if the conversation had terminated at this point. The grievor testified, however, that, '[Mr. Lee] said I was the'~best male candidate they had interviewed, that I was the first candidate they had interviewed, that they had marked me haxd, and that after the interviews were concluded, they had to go back and adjust my score. He stated that the position was a 'targeted' position. I hesitated because I did not understand fully what that meant. He said a targeted position is one where if a male or'female candidate has similar qualifications, the job must go to the female. He told me not to worry, that I was talented and had a lot going for me. H,e finished by saying that I had a great future." There is little doubt that the grievor was disturbed at what he understood Mr. Lee to have told him. Undoubtedly, his understanding was that he and the successful female applicant had been determined to be relatively equal, yet the female applicant was preferred over the grievor because of her sex. The grievor knew that under the provisions of Article 4.3 of the collective agreement it was he who should have been preferred, because of the two, he had the most senl'ority. Indeed, the successful applicant had no seniority because she was from the private sector. After considering themat.terforawhi~le, the grievor filed the grievance leadi‘ng to this hearing. - 10 - At the hearing,.,.Nr. Lee contested several points regarding the griever’s understanding of the telephone conversation on January 21. Mr. Lee stated, "I did not say that the successful candidate worked for London Life in Thunder Bay.*" He also stated, that, "I did not tell the grievor that I had to go back and adjust his score." He also denied stating that under the Provinces' Affirmative Action Program, female candidate were given an advantage over male candidates in competing for "targeted* positions.. In this regard, Mr. Lee pointed out that of the 22 candidates which '&re interviewed, 11 were males. Mr. Lee also testified that the griever was not rated by the selection committees as the top male candidate. He was ranked number 8. There were 3 male candidates who ranked ahead of him. The successful candidate, of course, was.ranked first. The 'rating sheets for the successful candidate and the grievor were introduced into evidence. These indicated that the grievor had received a cumulative score of 624 out of 930, while the successful candidate received l In fact, the successful candidate worked for London Life,in London, Ontario. She hailed from Thunder Bay. - 11 - a score of 721 out of 930. 'The overall assessment of the, grievor on his rating she&t was "fair". The overall assessment of the successful candidate was "good". Further, the rating sheet for the grievor did not show any indication that somehow, the members of the selection committee revised the griever's score. Nothing was struck out. It was signed by all members of the selection conunittee. Mr. Lee testified that the rating for the grieeor, as in the case of all candidates, was done immediately after his interview. Counsel for the grievor contended that the divergence between the testimony of the grievor and Mr. Lee introduced an issue of credibility, and that this issue ought to be .resolved in favour of the grievor. We reject this contention. Both the grievor and Mr. Lee testified in a forthright manner. There did not appear to be any deficiency in either witness' ability to reca.11 such as would lead the board to prefer the testimony of one witness over the other. Given this state of the evidence, the griever must be taken to have failed ,. to establish that the facts are different from those to which.Mr. Lee testified. On these facts, we fail to discern any significant deficiency in the selection procedure. There does not appear to be any basis for awarding the position to the - - 12 - grievor or requiring the competition to be re-run. Theperiod of time over which the 22 applicantswereinterviewed is not significant. Both the successful applicant and the grievor were interviewed on the same day. The successful applicant and the grievor were rated in exactly the same manner. As to the grievor's contention that no notes were taken during the his interview, we 'accept Mr. Lee's testimony that notes were taken. As to the' contention of the grievor that other areas should have been explored in his interview, we take nothing from that, The'person who was most familiar with the job, Mr. Lee,~ was the person who decided what areas should be discussed. He had considerable expertise in dealing with the position. Certainly his knowledge of the job was far superior to thdt which the grievor could have gained from reading the advertisements. This brings us to discussion of the question of bias. At the hearing, counsel for the griever made two submissions on this issue: first, he suggested that the "targeting* of the position biased the selection corrunittee in favour of females. Secondly, he submitted that Mr. Lee was biased in favour of the particular female candidate who was success- ful because he knew her when she was a reporter for a newspaper in Thunder Bay. These biases, counsel submitted, made it - - - 13 - impossible for,the committee objectively to consider the qualifications of the-grievor. On the evidence, we cannot accept that the decision of the selection committee was influenced by either of these alleged biases. As to the "targeting" of fhe position, there was no indication that this played any role in the Selection of the succeSSful"applicant and rejection of the grievor. The rating Sheets showed no indication that the committee consistently preferred the female. In some categories, the grievor's score surpassed that of the successful candidate: in others, the reverse was true. We also take note that two main distinctions were revealed between the successful candidate and the grievor. These were that the successful candidate had formal university training in journalism while the grievor did not, and, the successful candidate had knowledge of Fort William and its history while, again, the grievor did not. As to the alleged bias of Mr. Lee in preferring the successful candidate, we find no indication of that. Mr. Lee testified that he, at best, had a passing acquaintance with the successful candidate because she was a reporter on the local newspaper in Thunder Bay when he was responsible - 14 - for promoting Fort William in the media. (~This was in the period before IQ. Lee was authorized to have a Promotions and Public Relations Officer.) While Mr. Lee readily indicated that, in his view, the successful candidate's familiarity with the local newspaper and "key players". in the Thunder Bay area would be helpful in the position in question, he gave no indication that there was bias on a purely personal level. Accordingly, we conclude that Article 4.03 of the collective agreement was complied with in this case. The grievor was not relatively equal to the successful candidate. The latter had superior qualifications. Further, we find that no unfair selection procedure was followed in this case. The procedure was such as to ensure that each candidate was fairly considered for the position in ques'tion. The grievance 'is dismissed. DATED at London, Ontario 'this 27th day of Janua?ry,1983. Vice-Chairman "I concur with great reluctance" I.J. Thomson Member X.W. Preston Member