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HomeMy WebLinkAbout1982-0430.Almedo.83-04-19IN THE MATT'ER OF AN ARB,lTRATIOCl Under THE CROWN EM?LOYEES COLLECTIVE BARGAINI?JG ACT Before THE GRIEV.ANCE SETTLEMENT BOARD Between: CUPE (Jessie Almedo) Griever 'The Crown in Right of Ontario (The Workm;in's Compensation Board1 Employer Before: E. E. Jolliffe, Q.C. Vice Chairman I. J. Thomson Member E. A. r\,lcLean Member For the Grievor: G. 0. Jones Yational Representative Canadian Union of Public Employees For the Employer: M. P. MOran Counsel Hicks, Morley, Hamilton, Stewart h Storie Barristers & Solicitors Hearing: January 27, 1983 -2 - DECISION In this case, Ms. Jessie Almedo grieves against the result of a competition in June, 1982, when she was an unsuccessful candidate for the position of "Main Floor Receptionist" at the Workmen's Compensation Board offices, 2 Bloor Street East, Toronto. The grievance makes the following allegations: An employee junior to m by 3 years ard speaking only Italian and English has been chosen. 'Ihe reason for that choice is "greater experience in reception wxk". I contend the choice made is unjust, discriminatory and ill- founded. At no time during my application interview was my experience in reception work ever questioned or discussed neither was my proficiency in Italian (my mother tongue) and Spanish --- languages listed in the requirements --- ever tested by the interviewer of anyone else. Prior to my coming to Canada I ran a hotel for 3 years in caracas, Venezuela, and, in Canada I have worked for 10 years experience in dealing with the public and I contend this cannot be matched by the candidate chosen --- let alone my proficiency in two of the required languages other than !?nglish, my education in 'those languages and seniority at the WCB.. The Employer's response, as summarized in Exhibit 3, is as follows: In your case, our information shows that you were asked what experience you had as a Receptionist meeting people face to face and that if you had this kind of experience, what was the -3- length of that experience. 01 information shows that you responded by advising the interviewer that you had no exper- ience in this area. This factor was of prime importance in making the selection, particularly its relevance to the Board's operation, and as such your qualifications were not relatively equal to the successful candidate. The applicable provisions in the collective agreement between Canadian Union of Public Employees Local 1750 and the Workmen's Compensation Board are to be found in Article 5.5: 5. Role of Seniority in Promotions and Transfers Both parties recognize: (a) 'It-e principle of promotion within the service of the Fmployer. (b) 'Ihat job opportunity shall increase in proportion to length of service. (c) Tnat the primary considerations in filling a vacancy are qualifications and ability to perform the required duties. (d) Therefore, in making staff changes, transfers or pro- moticns, cchere qualifications and ability are relatively equal, seniority shall be the determining factor. On April 21, 1982, the competition was duly posted (Exhibit 6) under Article 5.1 and 5.2 of the agreement. It was headed "applications are invited from members of the permament staff who are interested in the position described i- . . below" The position was titled: "SECURITY ADMINISTRATION Main Floor Receptionist Salary Level 004: $247.86 -- $278.74 (Bargaining Unit)." The following particulars were given: MAJOR RESPONSIBILITIES: - Receives claimants ard other visitors to the Board, directs them as appropriate and/or answers their enquiries or directs them to Board staff &o can respond. - Answers telephone enquiries. - Receives mail and parcels, records in log and ensures prompt delivery as appropriate. - Acts as an interpreter, as required, by Claims Division and Medical Division ard at Ameal Hearings. AFpeal Hearings may be held at locations other than at 2 Bloor Street East. - Relieves other receptionists as required: e.g., 14th floor, 21st and 22nd floor receptitinists. - Maintains prescribed records ard repxts. - Performs other duties as assigned. BASIC REQUIREMENTS: - Grade 12 education or equivalent. - Good communications skills ati command of the mglish language. - Ability to converse fluently in cne of the languages desig- nated by the Board, (currently Italian, Portuguese, Cdeek or French), and as specified by the Branch to maintain a balance in the designated languages. - Cne to three years' general office experience. - Neat appearance and courteous manner. - Willingness to wear uniform provided by the Board More details appear in a Job Description which is Exhibit 7. It will be noted that the incumbent is not only required to perform the normal duties of a receptionist; she must also be able to converse with claimants and other visitors -5 - in more than one language and she may be called on from time to time to act as an interpreter in various offices of the Board. In her testimony the griever has emphasized that she is fluent in both Italian and Spanish as well as English and has frequently acted at the Board as an interpreter. Partic- ulars given in the Job Description are as follows: CORE FUNCTION lb act as receptionist at the reception desk on the main floor, and act as an interpreter for Claims Division, Medical Division and at Appeal Bearings. TYPICAL DUTIES: 1. 2. 3. Receives claimants and other visitors to the Board, directs them as appropriate and/or answers their enquiries or directs them to Board staff cd70 can respond. Answers telephone enquiries. Receives mail and parcels; records in log and ensures prompt delivery as appropriate. 4. 5. Acts as an interpreter, as required, by Claims Division and Medical Division and at Appeal Bearings. Appeal Hearings may be held at locations otter than at 2 Bloor Street East. Relieves other receptionists as required; e.g., 14th floor, Zlst and Znd floor receptionists. 6. Maintains prescribed records and reports. I. Performs other duties as assigned. ACCOUNTABILITY: Reports to Supervisor, Safety and Security. i . . -6 - LATERAL RELATIONSHIPS: Communicates with, and acts as an inteqxeter for; claimants , and their representatives as required. Alerts Security Office of any parson and/or incident which is causing, or is likely to cause, a problem disruptive to Board staff or operations. BASIC REQUIREMENTS: Grade 12 education or equivalent. Good communications skills ard command of the Dqlish language. Ability to converse fluently in one of the languages designated by the Board, (currently Italian, Portuguese, Creek, or French), and as specified by the Branch to maintain a balance in the designated languages. One to three years' general office experience. Neat appearance and courteous manner. Willingness to wear uniform provided by t& Board. In the particulars above Spanish is not listed as a language currently desired by the Board, but it may well be that immigration from Latin America will eventually increase its importance. In a performance appraisal dated May 26, 1978, it was said of her that "Jessie's goal is to become an interpreter for the Board.." The griever was born in Naples, Italy, living there from 1939 to 1952 when she went with her family to Venezuela, where her father had a hotel. She did some work in the hotel as a teen-ager and became familiar with the Spanish language. i, . - 7 - In 1958 she came to Canada and held various jobs in a factory and in restaurants while taking part-time courses in English. She spent four more years in.Italy from 1961 to 1965, when her mother died. After returning to Canada she worked in a pharmacy, answering the telephone, preparing prescriptions and dealing with customers. From June, 1977, she was at the W.C.B. as "Records Control Clerk 1," with Salary Grade 003, a position she still held at the time of the competition in June, 1982. Since the posted position of Receptionist is graded 004, it would have represented a promotion for her with a higher salary. Exhibit 4 is a "Performance Review Summary" dated April 13, 1982 --- shortly before the competition. Her general performance was described as follows: Jessie is presently working in the P.A.C.S. area cn the 9th floor. Her work is average and she has a good knowledge of her job and what is expected. Jessie puts a lot of effort into doing her job well. She gets along well with her peers as well as the area users. In the area of attendance, Jessie is average. It was also stated: Jessie has been applying for job postings that become available. Her goal is to get ahead within the organization. i. . -8 - The griever's supervisor added that "Jessie agreed with her Performance Review," and it is signed by both. When the griever applied for the Receptionist's position in May, 1982, it was not for the first time. She had applied for the same position in 1981 without success. She was interviewed on both occassions by Mr. W.L. Tredrea (Supervisor, Safety and Security) who acted as a one-man selection board. The collective agreement in Article 5.3 re- quires that all candidates be "interviewed either in person or by telephone" but it does not specify the number of persons who are to do so. In May and June, 1982, Mr. Tredrea held interviews extending over three days or more. He obtained the file for each applicant after the interviews and noted that the griever seemed to have Grade 11 rather than the Grade 12 specified by the posting. Mr. Tredrea made notes during each interview (since destroyed) and it was "probably" a week before he completed Exhibit 10, titled "Interview format," which purports to (1) determine selection criteria (2) develop a weight range i ,i - 9 - (3) assign the scoring breakdown, and (4) "record below." Using his notes he then filled in Exhibits 12~ and 13. These note answers to questions but the actual score-card is Exhibit 14, titled "Interview Evaluation Matrix." Mr. Treadrea's weighted criteria, as set out in Exhibit 10 are significant. He gave each of the following criteria a weight of only 5: (1) Grade 12 or Equivalent Education, (2) Additional Language Skill in Required Language, (3) Require- ment to Wear Uniform, (4) "who to call in event of Emergency." Most important, one criterion --- and only one --- had a weight of 20. This was: "Previous Reception Experience (Add for Within Board)". Three years of experience or more would score 20; two would score 16; one and one-half would score 12; one year would score 8 and six months' experience was to receive 4 points. Using these criteria and notes he had made during the interviews, he awarded points to all candidates. For the pur- poses of this case, it is necessary to compare the points given the griever and those given the winning candidate, Ms. Sara Garritano, now Ms. Sara Niro. :, E - 10 - In the crucial area of Previous Reception Experience, the winner received 8 points, apparently representing one year's experience, but the griever received no points at all. Ms. Almedo is indignant about this, claiming that she ought to have been given credit for her work in a pharmacy, where she had to talk to customers and satisfy their needs, and that she had also dealt with guests at her father's hotel in Venezuela. The difficulty is that, as she says herself, she had replied in the negative when Mr. Tredrea asked her if she had previous experience as a receptionist. Neither she nor Mr. Tredrea is certain whether this exchange occurred at the 1981 interview or the 1982 interview. It seems likely that Mr. Tredrea at the time of the second interview was relying to some extent on information obtained during the first interview. It is also possible that she misunderstood him, thinking he referred to experience in reception work at the W.C.B. Unfortunately, in our opinion, neither the question nor the answer was made perfectly clear. It may be noted that on Exhibit 12, where Mr. Tredrea recorded answers, the following words appear under the name of Sara Garritano: '"Recpt. on 7th Floor for 2 months." Strictly speaking, that answer would not rate 8 points; under Mr. Tredrea's - 11 - criteria in Exhibit 10 it would receive no points. The only I word under the griever's name was "No" --- which she admits is the answer'she gave, either in 1981 or 1982. For the following criteria, the two candidates both received a score of 8: Verbal Communication Skills During Interview and Deportment During Interview. For Punctuality both received the maximum: 10. For Skill "in an additional language," both were rated Excellent and received the maximum: 5. Also, for Willingness to Wear the Uniform, both said they had "no objection" and received the maximum: 5. Under one criterion, Telephone Experience, the griever's score was higher: she received 8, Ms. Garritano 6; the former had said she had experience in a hotel on a S-key switchboard; the latter said she was telephone receptionist on the 12th floor for 18 months. - 12 - There were two other criteria (apart from Exper,ience as a Receptionist) where the winner's score exceeded that of the griever. For educational qualification, the scores were 5 and 4. Presumably this difference reflects Mr. Tredrea's view that the griever had only Grade 11, and not the equivalent of Grade 12, while the Garritano file indicated four years at Notre Dame School with a "Secondary Diploma" in Business and Social Science. For Attendance, the Garritano score was 10, the max- imum representing "Excellent." The griever received only 7, *' representing the half-way point between "Good" and "Average." The apparent reason is that (according to her file) Ms. Almedo had been counselled on August 20, 1981, regarding absences totalling ll-3/4 days on seven occasions between August 27, 1980,, and August 17, 1981. This,represented an average of less than one day per month, absences which she told Mr. Tredrea were due to "Personal Problems now Resolved," and he noted her attendance as "Fairly Good." The nine criteria referred to above produced a total . ‘, ,,~ ,.’ - 13 - score of 65 for Ms. Garritano and 55 for Ms. Almedo. The dif- ference was due to the following: the griever was strbnger by 2 points for Telephone Experience, but fell behind 1 point for Education, 3 points for Attendance and 8 points for Experience as a Receptionist, resulting in a net difference of 10. There was another curious result shown on Exhibit 14. In the nine criteria mentioned above, one other candidate scored 66 and another 63. Mr. Tredrea then scored Ms. Garritano and the two others under his 10th and 11th Criteria: "How to Deal with Irate Claimant" and "Who to Call in Event of Emergency." Here Ms. Garritano received 13 points out of a possible 15 giving her a new total of 78; the candidate who had led with 66 received only 10, resulting in a new total of 76. All other candidates (including one who had 66 in nine criteria) were marked "Retired from Competition," apparently meaning that Mr. Tredrea simply decided to ,eliminate them by not awarding any points under the 10th and 11th criteria. Exhibit 8 is the description of the position held by the griever at the time of the competition: Records Con- trol Clerk in the Administrative Resources Division. Exhibit 9 - 14 - -.. is the description of the position held by Ms. Garritano ,at the same time: Filing Clerk 2 in the Vocational Rehabilitation' Division of the Rehabilitation Resources Branch. Both had the Salary Grade 003, and both require a wide variety of clerical work. Neither description refers to interpretation duties. However, the griever has testified that she has often been called upon to act as an interpreter: in some weeks two or three times, in other weeks not at all. Her reference in the grievance to "proficiency in .two of the required languages other than English" is a little off the mark since Spanish is not a language specified in the posting or on the job description of the Main Floor Receptionist, although a command of Spanish would no doubt be an asset to the W.C.B. as well as herself. Of course both candidates are proficient in Italian, which is one of the required languages. Ms. Almedo also states that she has been paid a premium for interpretation work, but con- cedes that she cannot "write English fluently." The griever's testimony also indicates that she thinks well of Mr. Tredrea, he was "always friendly" and she does not believe he has anything against her. E. -i - 15 - Mr. Tredrea has testified that he did not see the nine candidates' files before the interviews and did not contact any supervisor except Ms. Garritano's, which was after he had ranked her first. As forgiving Ms. Garritano 8 points for experience as a receptionist, he explained that / / he thought experience "within the Board" merited "bonus marks," as indicated on Exhibit 10. The successful candidate, now Ms. Niro, was present throughout the hearing. She declined the opportunity to question witnesses. On her own behalf she pointed out that she too is a union member and she thought it would be unfair to remove her from a position in which she is "doing a good job." On behalf of the griever, Mr. Jones said the selection process here was not consistent with principles recognized by this Board in such cases as Remark 149/77, Quinn 9/78 and Hoffman 22/79. All were cases under the OPSEU agreement with Management Board, but he suggested the parallel is "very close." Mr. Jones argued that questions used by Mr. Tredrea were "not relevant" and that it was improper to ask candidates - 16 - for their own assessment of punctuality and attendance. Most serious, Mr. Tredrea was uninformed when he conducted the interviews, due to his failure to obtain the files or any input from supervisors. There was an onus on the Employer to put proper questions at the interviews, which was not done here. Mr. Moran, counsel for the Employer, had conceded that the griever met all the requirements set out in the posting, Exhibit 6. However, he argued that on balance Mr. Tredrea's evaluations were correct. In most respects the two candidates were "relatively equal," but the griever's educational back- ground fell below that of the successful candidate. Mr. Moran emphasized that a receptionist must be able to "sort out" ambiguities. When asked about previous exper- ience as receptionist, other candidates had qualified their answers, but the griever, failing to detect a possible am- biguity, had simply said "No." It was the very kind of problem a receptionist would have to face in dealing with people and answering their inquiries. Mr. Moran said the griever's exper- ience in a pharmacy was relevant, but it had been her respon- sibility to bring it to the attention of Mr. Tredrea. As for - 17 - the question of languages, the Employer had the right to de- t~ermine that experience was four times as important. Mr. Moran thought it entirely proper to ask candidates for a prognosis of attendance and punctuality --- both of which were of high importance in the Receptionist's position. This Board has no doubt that some fault can be found with the selection process about which the griever complains. It would have been wiser to obtain input from the candidates' supervisors and to study the files in advance. However, the imperfections identified in the process do not necessarily mean that the result was wrong or that an injustice has been done. To use the approach of Professor Adams in Morton 11/77, the result here, in our opinion, was not an unreasonable decision. Even if the griever had been given credit for her experience (which she unfortunately failed to bring to Mr. Tredrea's attention) she would still have trailed the other candidate. To give her a lower score for Attendance was not unfair in view of the counselling she had received in 1981. The grievor is to be commended for her efforts to make the most of her skills in interpretation and to win advancement at the W.C.B., and we think she will probably succeed. - 18 - On balance, however, we are not persuaded that in June, 1982, her qualifications were relatively equal in all respects to those of the other candidate. Thus her grievance cannot be upheld. Dated this 19th day of April , 1983 E. A. McLean Member 5: 2520 EBJ:sol