HomeMy WebLinkAbout1984-0039.Cook.85-08-14IN THE MATTER OF AN ARBITUTION
Under
‘.
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD.
Between:
Before:
OPSEU (Craig Cook) Grievor.
- and -
The Crown in Right of, Ontario
(Ministry of Correctional Services) Employer
For the Grievor:
nor the Emplover:
R. J. Delisle Vice-Chairman
J. McManus Member
P. camp. Member
.
D. I. Bloom
Ctknsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors
M. Milich Staff Relations Officer
~Staff Reiations, Eranch Ministry of Correctional Services
DECISION
The griever is a Correctional Officer 2 at the Gue lph
Correctional Ce,ntre. He applied for the position of Unit
Supervisor which carries a~classification of Correctional Officer /
3. The application was made pursuant to a competition.posted on
August 15, 1983. The competition for this position was conducted
in three stages. There were twenty-twos applicants. At the first
stages the applications were screened and two applicants were
rejected as unsuitable on the basis of their limited experience., ”
The second stage consisted of an ,examination. Of the twenty who
wrote eleven, including the griever, were rejected. The
remaining nine were given interviews and three of those.were
founds to be the successful candidates. The grievor complains
that he was improperly denied an’ opportunity for an interview.
The successful candidates were advised off this hearing but ‘chose
not to attend.
The grievor was hired as a Correctional., Officer ‘1, a
,probationary classification, at Guelph~Correctional Centre on May
3, 1976. He had just completed a program for correctional
workers at Centennial College where hue had finished second in a
class of 30. He received a commendation in 1977, and, reports that
a11 his evaluations have been positive. ,.Wis appraisal reports
dated, December 6, 1982 and November 18, 1963, Exhibits 13 and 14,
a’re glowing : “diligent and loyal”, “very keen interest”, "quick
to respond to emergency”, “has the respect of his fellow Staff” I
“easy to supervise", "good rapport with fellow workers”, “a
pleasure to have on shift". At tne Guelph institution there are
- 3 -
196 COl’s and CO2’s and 27 CO3’s.. A CO3 overse~es the ope,ration
of a particular area: living units, towers, admission and
discharge area and escort area. The grievor testified that over
the years he has frequently performed the~duties of a C03, in the
living units and in the tower and has taken training in admission
and discharge. He performed those duties when a CO3 was sick or
on vacation, usually a day here and there, .two or three times a
month, but sometimes as long as a seven day stretch. The grievor
testified that after he had applied for the CO3 position he
received a registered letter, Exhibit 7, a week or two before the
examination, advising him that he would have .to sit an,
examination. He stated ~that prior to taking the examination he
was not told anything about how significant the examination was
to be. He testified that on the day of th,e examination the
applicants were told that those who received a grade of over 75%
would have an interview.. The grievor objects to a number .of
questions on the examination as irrelevant to the job:
Tom Watson, the Deputy Superintendent at Guelph at the
time of the competition described the selection process., He
noted that the competition drew a large number of applicants.
There had been a large number of competitions that year due to
early retirement option. Senior staff tiine was being tied up
with interviewing. His experience was that interviewing iarge
numbers over a period of time was wearying and not as effective
as might be wished. It was decided therefore to cut down On the
number of interviews by screening the applicants with an
examination. He reasoned as well that an examination plus an
inter,.!iew would improve their selection sai?ity.
tiatson described the examination as be.ing developed
pursua~nt to his direction by Mr.
Dick, lieutenant in charge of
staff training and Mr. Foulds, a’supervisor. He, Watson,
reviewed the examination, made some changes and gave the final
document to Mr.‘Taylor, the Superintendent. He noted that the ,
exam was based eon four principal sources. First, the Collective
Agreement. He justified this on the basis that frequently CO2’s
would ask a CO3 regarding his entitlement to over time and such
matters and that it would be logical to expect a CO3 to have this
knowledge. Second, the Correctional Services Acti Me noted ‘that
each CO is given a copy of.this key legislation. Third and
fourth sources were the, Standing Orders and the Operational
Manuals. He noted that it was he who decided on the 75% cut off
figure indicated to the applicants and used this figure because
years before on his examination the instructor had used a figure
of 75%. ‘As it turned out only ‘a handful achieved. the 75% mark.
There were three positions available and to gain a reisonable
number for the interview the passing mark was lowered to 70%.
Grievor achieved 57%.
In cross-examination Watson agreed that questions about
the COllect,ive Agreement could be diverted to the bunion steward
and that there was nothing in the Positi& Specification making
knowledge of the same a requirement of a CO3’a job.
.
Watson noted that the applicants who wrote the
examination had a broad range of experience. Some would have ‘had
acting CO3 experience and some not. ReaSonab:e appraisals and
attendance were enough~to allow the applicant to write the
- 5 -
examinatlbn as they sought’a breadth of applicants. He allowed
that interviews of the supervisors regarding the status of ail
the applicants were not conducted.
The Collective Agreement provides:
4.3 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.
The grievor is senior to each of the~three successful
applicants. Are their “qualifications and ability relatively
equal”? Did supervision conduct a selection process to properly
f/nd out?. We can understand the supervisio!Ps concern for
efficiency. In Borecki, 256/82 it was noted:
In conducting a job competifion, an employer ’
cannot be required :o interview all the applicants,
regardless of their suitability. When numerous applicants come forward, as is common in the public
service with its large number of employees, questions
of efficiency and cost may require some screening of,
applicants. At times, only those meeting the. basic
qualifications may be considered. Of course,--these
qualifications must be reasonably related to the job zn question. At other times, the pool of apparently
qualified applicants may be so large .that a ranking
of the most qualified Qill have to occur and only
those with the highest scores will be called for an
interview and further consideration., The ranking, .
again, must be reasonable, in the sense that each candidate’s qualifications are reasonably evaluated.
Failure to interview an employee with greater
seniority than the successful candidate may well lead to a grievance, with the senior employee arguing that
he is relatively equal.
In ranking the applicants here, and determining whether they were
entitled to an interview, did supervision take into account g
- 6 _’
the qualifications reasonably related to thejob in question? In
Cross 339/81, it was noted:
There are of course several as,pects of
“qualifications and ability~” as that term is used in.
Article 4.3. On’e aspect obviously is experience, not ~always the same as seniority. A second .aspect can be
the nature of skills and knowledge acquired during
past experience. A third (more important in some positions than in others) is the educational level
attained by the candidate. It is also a fact of l.ife
that some people have the innate ability to cope with
new problems and master new skills. In some
positions the habit of building good relations with
others can be very important. This list may not be
,oomplete, and it should probably include, whenever
appropriate, a certain capacity to take. initiatives
and give such leadership as may become necessary.
In this case Watson noted for us that he was not
skilled in set,ting examinations; This became obvious to us when
he gave his reason for setting the pass level according to
another exam taken by him at an earlier time; Also we note his
admission of the irrelevancy of questions regarding the
Collective Agreement. It may be that some of these questi.ons .
could be asked of a CC3 but .that does not mean that we can demand
that CO3s~ be in a position to answer them, particularly when
other sources are read.ily available. A number of other queStionS
were also seen to be tenuous in their relation to the position
specification and admitted by Watson to be “very difficult”. In
Caston and Therrien 140/80 we read:
There might be occasions where it is necessary
to place greater reliance on the creation of a teSt _
which artifically examines the various criteria which would be important in the .performance of the job
under review, however, in a case such as .this, much more significance ought to be given to evidence of
work performance on the job, where such evidence is
of the greatest relevance. An artificial test, intended to examine the various attrib.utes nec,essary
for SdtiSfaCt~Ory performance on the job cannot seriously affect visible , ,tangible manifestations of
the characteristics sought to be tested. This is
especially so where the test is created by amateurs and is unvalidated. This is not to say that persons
familiar with theijob, and with the characteristics
w~hich are requifed in order to carry out the job, cannot prepare a test based on their practical
experrence: It does mean, however, that the use of
such tests must be closely scrutinized and their results ought.not to prevail where actual events
disclose that an applicant has functioned well in an
area where the test,indicates that he is not likely to do so.
These remarks dre Particularly appropriate to our~case.
For purposes of efficiency, supervision decided on an
examination. They did~not tell the applicants in advance of
examination day -that “failure” would foreclose ~their right to an .
Lnterv,iew. This was unfair. We cannot say that the grievor here
had his qualifications and ability fairly evaluated and compared
with the other applicants. The Position Specification and the
Job Posting lists a number of qualifications. This examination
'. did not permit a comparison of most of them. The Job;Postlng
lists:
Qualification Criteria: Successful completion of
correctional officers training course and satisfactory correctional experience. Good knowledge
of Ministry and Institution's regulations and
procedures and programs. Supervisory ability. Ability to meet Ministry physical and medical
standards. v
As counsel for the.grievor noted, this examination tested
knowledge. It did not, could not, assess and compare ability and
experience. To rank properly more than an examination of j
.knowledge given to a broad range of applicants was necessary.
The grievor was entitled to an interview so that his
qualifications could be more properly eval;>ated and we SO declare
and order. If an’ entirely new competition is necessary, if thaT
is the only way to remedy the grievor’s position, then we 50
order. We will remain seized of the matter pending its
satisfactory resoluti’on.
Dated at Kingston this 14th day of August; 1585.
Gmisie, Vice-Chairman
Hcnanus, Member
/ ‘-‘?+ ,I %-\(see at-ached
P. 6: Camp, Member addendum
. .
AbDENDUM RE:
File #39/84 OPSEU (Craig Cook)
and Crown/Ontario (Ministry of Correctional Services)
I concur with this award to the extent that the
Grievor, Craig Cook be granted an interview. This .
meets the settlement required as stated in the
Grievance “that I be given an equal opportunity. in the
competition #Cl-0438-83 by being given an interview in
this competition that is to take place Friday, November
18, 1983’1.
To go beyond ,th,is to the extent of an entirely. new
competition would, in effect, exceed the settlement
required by the Grievor. Further, it would be
time-consuming and costly with disruptive results at
the Guelph Correctional Centre.
PETER D. CAMP r-