HomeMy WebLinkAbout1983-0250.Sedore.85-01-17.~.
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250/83
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the ,Grievor:
For the Employer:
Hearings:
OPSEU (Ronald J. Sedore)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Transportation and
Communications)
Employer
R. Delisle~ Vice Chairman
L. Robbins Member
G. Milley Member
P. A. Sheppard
Grievance Officer
Ontario Public Service Employees Union
G. Eden
Staff Relations Officer
Central Region
Ministry of Transportation and Communications
February 13, 1984
October 26, 1984
:
DECISION
The grievor~ complains that he has been unjustly denied
promotion to the position of Maintenance Crew Foreman, Freeways Patrol
#6, Gormley Yard. The grievance is based on Article 4.3 of the
Collective Agreement which reads:
In filling a vacancy, the Employer shall give
primary consideration to qualifications and
,ability to perform the required duties. Where
qualifications and ability are relatively equal,
length of continuous service shall be a
consideration.
To succeed in his grievance:
I'... the grievor bears the onus of proving not
only that he has the requis~ite qualifications
and ability for this job, but as well that he
was relatively equal in those respects to (the
incumbent)." Doherty, 43/76 (Beatty).
Recognizing this onus we also note however that the employer is fixed
with certain obligations by Article 4.3 and:
. . . the employer must employ a process ,of
decision-making designed to consider the relative
qualifications and ability of the candidate in a
competition which will ensure that sufficient
relevant information is adduced before the
decision-makers in order that they may make
their comparisons in. then confidence that they
are able to thoroughly and properly compare the
qualifications and .abilities of the competing
applicants." Quinn, 9/7S (Prichard).
As stated by this Board earlier:
II . . . in considering qualifications and abilities
of job applicants, the employer must not act
arbitrarily, discriminately or in bad faith. Nor
should he'act unreasonably,. either in establishing
requisite.qualifications for the job nor in applying~,
them to the applicants." Remark, 149/77 (Swinton).~
The grievor has two arguments. First, he argues that he
should be given the position outright as he is, by the evidence,
'relatively equal~to the successful applicant and has greater seniority.
Second, he argues that the selectionprocess was so flawed that the
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decision cannot stand and we should instruct the Ministry to conduct
a new competition or simply Place the grievor in the position.
The griever notes that in November, 1981 he had applied for
a similar position and was rejected but that the letter informing him
of the same (Exhibit 11) described'him as relatively equal to the
successful applicant and that his rejection was due to lesser seniority.
From this the grievor argues that the Ministry found him qualified for
the position. In addition, the griever was granted a similar position
in a different yard a few months after he wasunsuccessful in the
instant competition. From this evidence we are to assume that the
griever was qualified 'for the position before and after the competition
and therefore qualified at the'requisite time. The short answer to the
griever's first argument is obvious: to succeed the grievor must show
not only that ~.he was qualified but also that he was relatively equal I'
to the successful applicant.
The real question before us then is whether the selection
process was sufficiently flawed that we should order a new competition.
In Cross, 339/81 (Jolliffe) this Board dismissed a similar grievance
when it was established that the,ultimate selection was correct in
any event. The Board there described the crucial question to be
11 . . . whether the rather inadequate methods of
personnel selection in this case were such as to
cause what might be called a miscarriage of justice."
In Marek, 414/83 (Samuels) this Board ordered a new selection because
they were persuaded by the grievor that he could very likely demonstrate
relative equality if a proper selection procedure was undertaken. It
is against that background that we now turn to examine the selection
process under attack.
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The grievor maintains that the process was defective in two
.ways. First, the questions used by the interviewers were not designed
to elicit the proper material. Second, the grievor faced a panel,
two of whom had direct knowledge of the eventual'top-rated three
applicants and the panel did not contact the griever's supervisor for
advice concerning the griever's abilities in supervising others.
The chairperson of the selection panel, Bertram Thompson,
described the process. The position was advertised by posting (Exhibit
6). The advertisement listed the qualifications that a successful:
applicant "must have" and those that he "should have". The "musts"
and the "Shoulds'Vwere developed after examining the Position
Specification (Exhibit 7). There were eight applications and on
comparing the same with the ad the panel decided to interview six.
Only the grievor failed to follow the instructions of the ad and submit
an.Attachment Form which would respond in detail to the "musts" and
"shoulds" listed in the ad. Nevertheless the panel'decided to
interview him in any event even though an earlier memo had said that
failure to attach such form might disqualify the application. The
panel developed a list of questions to be posed to all applicants.
The questions were grouped into three modules under the heads
Leadership, Judgement, and Technical. The modules were weighted in
light of the requirements as seen in the Job Advertisement and in the
Position Specification: Leadership 7, Judgement 8 and Technical 10.
There were four questions in the first module, three in the second
and eight in the third, (Exhibit 13). There was some testimony by
the griever and another unsuccessful applicant, Peruch, that on comparing
memories after the interview different questions were posed to each.
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We are satisfied that this was not the case as we see the notes taken
by the interviewers together with their written lists, of questions
as preferable to the known frailties of the human memory. We are
satisfied that all applicants were asked all questions. After the
interviews the panel compared notes'and made up summaries of the
answers given. The answers of the grievor are summarized (Exhibit 18)
and of the successful applicant (Exhibit 19). We are satisfied by
Thompson's evidence and also by the grievor's testimony that the griever
was provided.full opportunity to answer 'all the questions. The
following day the panel compared the answers. They assigned a grade of
10 to the best answer and graded the others in relation to it: After
weighting the answers and totalling,the grades ranged 228.38 (successful
.applicant), 227.25, 164.5, 141.05, 125.5, and 91.4 (the gr:ievor). The
grievor, who placed last, was outdistanced by the successful applicant'
by a very large margins. The panel regarded .the top three applicants
as worth pursuing and reviewed their files. The panel was familiar
with the work habits of the top three. and therefore decided it was not
necessary to contact their supervisors. Counsel for the grievor /
suggested that the successful applicant was privileged since he had
worked in the subject yard as an ~acting foreman; it is noteworthy
however, to rebut suggestions of favoritism, that he was given that
task after two others in the yard had turned it down. Counsel for the
grievor suggested the successful applicant was privileged simply by
working in the subject yard; the applicant with the second highest
rating did not work there but similarly outstripped the griever's score.
'Counsel for the griever cross-examined Thompson regarding the
appropriateness of the questions as relsting to the job advertised.
.
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Without going into all the deta~ils of the individual questions we
cannot say that the great bulk of the questions are not directly
related to the job. We recognize the wisdom that suggests the panel
should consult personnel files and candidates supervisors, Marek,
414/83 (Samue~ls),but given the disparity in scoring on the interview
we cannot say that the result could have been different if such had
occurred in this case.
The grievor has failed to persuade us that he was relatively
equal to the successful applicant or that he might be able to persuade
a new panel of the same.. Accordingly the grievance is dismissed.
Dated at Kingston this 17th day of January, 1985.
,&+4-Q - ~‘-.-.A4
WDelisle, Vice Chairman
mI concur"
G. Milley
"I concur" (addendum attached)
L. Robbins
IN THE MATTER OF AN ARBITRATION
BETWEEN: MINISTRY OF TRANSPORTATION & COMMUNICATIONS
.- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
ANDY IN THE MATTER OF THE GRIEVANCE OF R.J. SEDORE [ #250/83] '
>A~ D DENgUM .' - - T - - -
I have reviewed the Award of the Chairman in the
above matter and am prepared to concur with the result based
on the specific facts of this case. However, the process
used has clearly'failed to meet ideal standards of fairness,
notwithstanding repeated directions from various panels of
the Grievance Settlement Board'on procedure to be.followed in
such cases. Fairness in the se~lection procedure is obviously
. .
important to employee acceptance and trust in the procedure.
The following excerpt from Marek 414/64 (Samuels) is
most on point:
"From the evidence at our hearing, it is clear
that the decision to select the successful candidate
was made on the basis of the application forms and the
interviews, without any recourse to personnel files or
candidates' supervisors. The successful candidate had
been doing the job involved for three.years on a contract
basis and was well known by the interviewers. Indeed,
Mr. Clark testified that he had been told by his superiors
that he could not consult personnel files, and it was
his practice never to call candidates' supervisors. It is
hard for this Board to understand how this could occur,
. . . /2
in view of the repeated direction this Board has
given on the need to consult personnel files and
candidates' supervisors, particularly when one of the
candidates only is known to the interviewers -- see, for
example, MacLellan and DeGrandis, 506/81, SO?/Sl, 690181 and 691/81, wherein the jurisprudence is summarized at
pages 25 and 26:
The jurisprudence of this Board has established
various criteria by which to judge a.selection
process:
1. Candidates must be evaluated on all the relevant
qualifications for the job as set out in the
Position Specification.
2. The various methods used to assess the candidates
should address these relevant qualifications
insofar as is possible. Forexample, interview
questions and evaluation forms should cover all
the~qualifications.
3. Irrelevant factors should not be considered.
4. All the members of a selection committee should
review the personnel files of all the applicants.
5. The applicants' supervisors should be asked
for, their evaluations of the applicants.
6. Information sho,uld be accumulated in a systematic
way concerning all the applicants.
.See Remark, 149/77,; Quinn,.9/78; Hoffman, 22/79:
Ellsworth et al, 361/80;and Gross/81."
In this particular case, the selection panel knew three
of the applicants well, that is the top-rated three applicants. Yet
no attempt was made to contact the supervisors of the other applicants
or even review their personnel files. Such an unequal access to
information about the various applicants does seem to stack the
deck.
One of the members of the interview panel was actually
a relative of one of the top-three rated applicants (although to be
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fair,
that. applicant WAS not the one ultimately chosen.). Still it
would be preferable if a member of,,an'interview panel excused himself
in such a case.
I am also concerned that the candidates were provided
with too little information about'what~ was required in the job
prior to being interviewed. For example, they were not even given,
job specifications about the position. Finally, I am concerned .
that too much stress was laid in the questioning process on minute
technical details rather than questions of 'leadership.
In my view, if the.directions from this Board were
taken more seriously by interview panels,, there would likely be
less resentment with the results in cases such as this.
Respectfully submitted
Union Nominee