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HomeMy WebLinkAbout1983-0592.Riddock.84-09-27ONTARKl CROWN EUPLOYEES GRIEVANCE SETTLEMENT BOARD IN THE RATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Befo-re THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Barry E. Riddock) - and - Grievor Before: The Crown in Right of Ontario (Ministry of Correctional Services) Employer R. 1. Verity, Q.C. Vice Chairman T. Traver, Fiember B. Lanigan Member For the Griever: B. Hanson, Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors ;or the Employer: P. Radley Staff Relations Officer Hinistry off Correctional Services Hearings: May 30 and July 4, 1984 - 2- DECISICN This is a competition grievance involving Article 4.3 of the relevant Collective Agreement. In' a grievance dated August 11, 1983,,Barry Riddock alleges that he was improperly denied an interview for the position of Senior Duty Officer at the Thunder Bay Correctional Centre. In the grievance form, the sole“re~media1 request was for an interview. In a letter dated September 27, 1983, the Union expanded the settlement request to include the following: "IFat I be offered the position of Senior Duty Officer (Correctional Officer 3) at the Thunder Bay Correctional Centre (Corqzetition Cl-1014-83) .' At the outset of, the Hearing, the Parties agreed to proceed in two stages in the same manner as determined by Arbitrator Swinton in OPSEU (Walter Bore&i) and Ministry of Natural Resources, 256/82. The two step procedure was as follows: 1) Did the Employer act properly in denying the Grievor an interview with the onus on the Employer to show it did act properly? 2) If it was found that the Employer acted improperly, the next issue would be the relative equality of the candidates and the appropriate remedy. At the second day of Hearing, Counsel for the Union amended that procedure by abandoning step 2. On behalf of the 3 - Griever, Mr. Hanson further amended the settlement request to claim that the competition be re-opened and the Griever be qranted an interview. In the instant grievance,. the competition involved filling two positions as Senior Duty Officer at the Thunder Bay Correctional Centre. The posting was dated April 11, 1983 with a closing date of April~22, 1983. The posting read as follows: "coMpEIlTIcN Cl-1014-83 Applications are invited for the psition of: SENIOR DUIY OFFICRR (2) ~- (Correctional Officer 3). Salary: $12.04 - $12.76 per hour Schedule: 4.7 Location: Thunder day Correctional Centre 'Ihe successful candidate will assist the Shift Supxvisor in the lxarformance of correctional duties as second in charge of an assigned shift. To supervise subordinate staff. Qualifications: ^.'- Requires working knowledqe of Collective Bargaining Aqreemsnt, Ministry of Correctional Services Act and Institutional Regulations and Procedures. Acceptable progressively incrt%sing responsibility and wrk record in a correctional setting.. Successful completion of the Ministry's prescribed Staff Training Course for Correctional Officers. Ability to effectively utilize staff and resources and maintain control Of inmates. Interested qualified applicants must submit resumes* to their Superintendents no later than April 22, 1983. Superintendents are asked to forwrd res-s with a copy of the applicants most recent appraisal. A record of the errployee's attendance since April 1982 is also to be included with the application. " Superintendents are requested to forward applications, no later than April 27, 1983, to: -4- Regional Personnel Administrator (N) Ministry of Correctional Services OntarioGovernmantBuildinq 199 larch Street, 9th Floor Sudbury, Gntario P3E 5P9 *applicants who do not submit a ampleted resume my be rejected. This cenpetition is restricted to the Ministry of CorrectioPd Services classified staff at the Thunder Bay Correctional Centre and Thunder Bay Jail. POSTINGDATE: April 11, 1983 CLOSING DATE: April 22, 1983 -. 'EQJALITYOFOPKXTLlNITy FOREMPLOYMENT U The issue for determination is whether the Griever was improperly denied an interview. There were five applicants for the two positions advertised in the competition. Regional Personnel __ Administrator R. T. Aancey prepared the posting. Mr. Hancey testified that he relied upon each applicant's personal resume, appraisal, and his attendance record in assessing whether an interview would be granted. Mr. Hancay gave evidence that he made the decision not to interview the Griever solely on the basis of the Griever's unacceptable attendance record. It was Mr. Hancey's evidence that the Griever's resume, although somewhat incomplete, and the Griever's appraisal, although somewhat outdated, met the minimum qualifications for the position. On the evidence, there was no dispute that between April 1982 and March 1983, the Griever was absent a total of 53.5 days. Specifically, these absences were as follows: - 5- Dates Total NWr of Days April 8, 1982 1 &Y April 24, 1982 .5 day May 1 to 31, 1982 22 days June Lto 25 19 days January 9, 1983 1 day January 20, 1983 1 &Y February 9, 1983 1 &Y February 11 to 22, 1983 a days Total 53.5 days The Employer did not allege that any of the absences were for other than legitimate reasons. Mr. Hancey denied the Griever an interview after discussions with ThunderBay Correctional Superintendent J. R. Keddie. Mr. Keddie advised the Personnel Administrator that the Griever's record from April..1982 to March 1983 was consistent with his pattern of attendance in recent years. W. C. Hazelton, Deputy Superintendent of the Thunder Bay Correctional Centre from February 1981 to December 1983 (now Superintendent of the Brantford Jail) testified that the Thunder Bay Correctional Centre is a minimum security institution which employs some 26 Correctional Officers 2 and 5 Correctional Officers 3. He o~utlined the principal-duties of the position in question, namely ~'. manning the control area, supervision of the segregation cells and control of institutional keys. Mr. Hazelton stressed the importance of regular attendance for the position in question, and of his role as Chairman of the attendance review committee. The attendance of each employee was monitored closely by the attendance review committee, . -6- and each employee was kept informed on a regular basis of his or her attendance record. In addition, Mr. Hazelton testified that the Thunder Bay Correctional Centre had an "unbelievable problem" with employee attendance at the time of the competition in question, as evidenced by the fact that some 17 to 18 employees were in acting positions at the Institution. : Mr. Hazelton presented evidence that for the calendar year 1981 the Griever was absent a total of 48 days and, in 1982 the Griever's absence totalled 51.5 days. In addition,, he testified that supervision of an acting Senior Duty Officer consumed approximately 70% of the time of a shift supervisor. In his evidence, the Griever did not dispute the accuracy of the Ministry's documentation of his absentee records. Mr. Riddock testified that he assumed the acting position of Senior Duty Officer (based on seniority1 in October 1982 and continued in that position until October 1983; Subsequent to that date, he has been periodically reposted to the acting position of Correctional Officer 3. The' Griever attributed his absenteeism record to a perforated ulcer and severe marital difficulties. - 7 - Arguments on behalf of the Parties were well presented and ably supported by arbitral precedent. We do not attempt to repeat those arguments except in summary:form-. The Employer argued that good attendance was one of the criteria for the position, and that inview of the Griever's poor record of attendance, the Employer acted in a reasonable manner in denying the interview. The Union's three-fold argument was that the initial screening process was defective per se, alternatively that the standard imposed was unrF?asonable, and thirdly that the decision was incorrect. The thrust of the Union's argument focused on the assertion that the fewer the applicants for the position, the greater the similarity should be between the initial screening process and the final interview process. The relevant Article in the instant grievance is Article -i 4.3. . "In fiIing a vacancy, the mloyer shall give prinery 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." - a - The-evidence does establish that the Grievor worked in an acting capacity in the position he now seeks from October 1982 well past the posting (April 1983) and interview (August 1983) stages of the competition. There was no evidence that his performance was less than satisfactory during that period. That fact alone increases the onus upon the Ministry to establish that the Griever, on relevant criteria, was not qualified for the i position claimed. As indicated previously, the Ministry had assumed the onus to demonstrate that it acted properly in the denial of an interview. I- -’ In a job competition, there is no obligation upon the Employer to interview all applicants. However, as in the case at hand, failure to interview an employee with greater seniority than the successful candidate will frequently lead to the filing Of a grievance. As Arbitrator Swinton stated in OPSEU (Walter Borecki) and Ministry of Natural Resources (Supra) at page 8 of the Award: "At tines, only those meting the basic $walifiCZtionS my te considered. Of course, these qualifications must be reasonably related to the job in question." In the circumstances of the instant Grievance, regular attendance is of critical importance to the position in question. At the time of the posting, absenteeism had attained chronic proportions at the Thunder Bay Correctional Centre. Therefore, it - 9 - . . was not surprising that the job posting itself called for production of the attendance record of each applicant dating back to April of 1982. The ability to maintain regular attendance has been found to be a relevant. criteria in assessing qualifications in Re I.T.T. Communications, Division of I.T.T. Canada Ltd. and Int'l Brotherhood of Electrical Workers, Local 2038 (1973), 4 L.A.C. (2d) 420 (Flynn) and in Re Manitoba Telephone System and Int'l Brotherhood of Electrical Workers, Local 2363 (1975), 10 L.A.C. (2d) 26 (MacLean). _. This Board is of the view that in the spring and summer of . . . 1983, in the absence of medical evidence to the contrary, the Employer was justified in drawing the inference that the Griever's generally unacceptable absenteeism record would likely continue in the future... We cannot fault Regional Personnel Administrator Hancey's action in'. his discussions with Superintendent Keddie concerning the Griever's attendance. Given the nature of the job, and the chronic employee attendance problems at the,institution, Mr. Hancey ha,d sufficient information on which to base a reasonable decision to deny the Griever an interview. For,the above reasons, we are unable toaccept.the very able arguments presented by Counsel for the Union. We must find - 10 - that the Employer has successfully discharged the onus of proof that it had properly denied an interview, and that the denial did not violate the provisions of Article 4.3 of the Collective Agreement. In the result, this grievance is dismissed. 1984. DATED at Brantford, Ontario, this 27th day of September, R. L. Verity, Q.C. - Vice-Chairman "I dissent" (see attached) T. Traves - Member B. Lanigan - Member GSB No.: 592/83 DISSENT With respect, I must dissent from the majority in this decision. Based on the information presented, I conclude that the Rmployer erred in not granting the.. grievor, Mr. Riddock, an interview and, therefore, I would uphold his grievance and order the interview he has requested. There is no question that over the past few years Mr. Riddock's attendance record was poor. However, in the nine month period immediately prior to. the job posting, his record improved significantly (July, 1982 to December, 1982,--O days absent; January, 1983--l% days absent; February, 1983--g days continuously absent; March, 1983--0~ days absent). This view was confirmed in Mi. Riddock's May 15, 1983, annual performance appraisal which judged his attendance to be satisfactory, commended his recent work and recommended him for promotion. However, despite the fact that the Employer waited after its decision in April, 1983, to deny Mr. Riddock an interview until August, 1983, to carry out~the interviews, the positive performance appraisal was never considered since no one' thought to link his assessment to his application. On these grounds I find the Union counsel's position that the Rmployer's search procedure was not correctly carried out due to the incomplete employee records considered to be:, convincing. Certainly, it is anomalous that in April, 1983, Mr. Riddock was deemed to be unqualified for an interview and in May, 1983, he was judged as having a satisfactory ~attendance record and.recommended as a candidate for promotion. Furthermore, the Rmployer's decision not to interview the grievor was unreasonable given that Mr. Riddock had been capably carrying out the tasks of a Correctional Officer 3(CO3) in an acting capacity since October, 1982. Given Mr. Riddock's acceptable attendance record in the period prior to. the job posting and his actual performance in the position for which he applied, the, Employer was under an obligation to at least interview him. Given the fact that the reqional personnel administrator, Mr. Hancey, who decided against Mr. Riddock's interview was not informed of the length of his acceptable service in the acting CO3 position, We see once again that the Employer's procedures were far from adequate and that its decision was unreasonable. I ..; .’ I I y:. Dissent Cont'd -2- GSB No.: 592/83 The Employer contends ,that a good attendance record is a necessary qualification for the position of CO3 due to the need to avoid disruptions in personnel assignments, a contention which I accept. However, it should be noted that Mr. Riddock carried out the functions of the CO3 for almost a year before the interviews were held and even after he was denied an interview continued to work in the acting position at least half of his time down to the present period. On the face of it, whatever its claims as to the necessity of regular attendance and Mr. Riddock's lack of qualifications on that account, it is obvious that the Employer could and did rely on Mr. Riddock to do the job and that he did not disappoint them. Five candidates applied for two CO3 positions and the Employer saw fit to exclude one of them, Mr. Riddock, due.to his attendance record. -Yet the Employer did not know the reasons for Mr. Riddock's absences and, despite the fact that he was obviously a capable employee, did not see it as reasonable to use the interview process to inquire further into the question of whether they could count on him in the future, as they had in the immediate past, to get the job done. For all these reasons, I would uphold the grievance and order that Mr. Riddock be given an interview and be measured against the other candidates who applied for the position posted. TDT:kmat . . . -.