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HomeMy WebLinkAbout1984-0042.Balics.84-09-11IN 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: Hearinq: OPSEU (Frank Balics) - and - Grievor . The Crown in Right of Ontario (Ministry of the Environment) Employer R. L. Verity, Q.C. Vi~ce' Chairman H. Simon Member P. D. Camp Member R. Ross We~lls, Counsel Gowling & Henderson Barristers & Solicitors R. Younger Staff Relations Advisor Personnel Services Branch Ministry of the Environment July 11, 1984 -2- DECISION This is a competition grievance dated October 17, 1983, in which FrankBalics alleges that he was "unjustly denied an interview" for the position of Special Projects Officer with the Ministry of the Environment. By way ~of remedial relief;he seeks appointment to the position. The sole issue before the Board was whether the Employer acted improperly in denying the Grievor an interview. The Parties agreed that the onus rested with the Employer to establish that it did act properly in the circumstances. The .Parties further agreed that in the event the Employer was unsuccessful - - indischarging the-onus, the matter should revert to the Parties. for resolution with the Board retaining jurisdiction. If no~resolution was forthcoming, the Board would reconvene to determine then relative ~'. ~, equality of the candidates asprovided for in Article 4.3 of the Collective Agreement. Essentially, &e abpve procedure was the course followed by Arbitrator Swinton in OPSEU (Walter Borecki) and .Ministry of Natural Resources, 2%/82 with one variation. Certain facts were agreed upon as follows: (1) The job posting in dispute was advertised on Ministry Bulletin boards and.in an internal government publication called "Topical". The posting read: %3@.red to pruvids sound financial administration foramplexarbdspecialministrywetertreatnmrt and kastadisposal programs. YOU will: @ct detailedfinancialimrestigat~ls; plan,devel~ I. L - 4 - 4.2 Tbetiice of vacancy shallstate,hhf~e applicable, the nature and title of position, sala.ry,gualificationsrequired, thehours- of-+.ork schedule as set out in Article 7 (Hours of Wrk), and the area in which the positicm exists. 4.3 In filling a vacancy, the D@oyer shall give primary consideration to qualifications and abilitytoperfoxmtherequiredduties. Vihere qualificationsandability are relatively equal, lengthof continuous service shallbea con- sideration. 4.4 An applicantwho is invitedtoattendan inter- viewwithin the civil service shall be granted tins off with no loss of pay and with no loss of credits to attend the interview, provided thatthetin-eoff~dcesnotunduly interfere with operating mts. The successful Applicants, Messrs..,Shah and Ramdeo attended at the Hearing and were afforded the opportunity,of ~ questioning witnesses and presenting evidence. _ The Grievor is presently employed as a Tax Auditor 3 with the Ministry of Revenue and has been so employed in that position since January 5, 1982. He holds a Bachelor of Technology / degree from Ryerson Polytechnical Institute and is a Certified General Accountant. His present duties with the Ministry of ! Revenue are primarily associated with auditing corporate financial statements and tax returns. In that capacity, he is required to be knowledgeable in the intricacies of the Income Tax Act, the. Canadian Business Corporations Act, the Ontario Business Corporation Act, the Corporation Tax Act and the Partnership Act. The Grievor - worked in the private sector from 1973 to 1975 as a Staff Auditor ( -5- with the ,firm of Gardner and MacDonald, and from 1977 to 1980 he was senior Staff Auditor with Cole, Chalmers and Co., Chartered Accountants. Between 1975 to 1977 the Griever was employed with two other chartered accounting firms.' In summary, the Grievor has acquired some eight years experience in audit and gene,ral accounting responsibilities. His extracurricular duties include a period of lecturing responsibilities with the Certified General Accountants of Ontario, past Treasurer of the Student Division of the Chartered Accountants Association of Ontario, and a member of the Professional Development Committee ofTthe Toronto Chapter of the Certified General Accountant's Association oft Ontario. The Grievor testified that'with his broad academic and extracurricular background, he had sufficient work related experience to establishtie necessary qualifications for the position as posted. He gave~nutirous examples in his testimony that he allegedly possessed each of the requisite qualifications to perform the job. There was no doubt in his mind that hisapplication demonstrated those qualifications. Specifically, he presented ~evidence which he alleged illustrated analy- tical and negotiation experience and skill in working as a member of a multi-discipline team. (2) (3) 1 (7) -3- and~lementcapitalandgrantfinancialarrange- msntswithnmnicipalitiesand industry; provide innmdiaterespmsetointernalandexternal questions re these prcgrams. File EN-56/J. (Ccmpetition closes Aug. 22.) Qualificaticms: mmrbership in a.professiorml accounting asscciaticm or degree frcma recognized university in financeor relateddiscipline; highlydevelopsdanalytical,negotiat.ingand cmtion skills; proven consultative ability. throughwxkinginfinancialmanagarent;general knowledge of related~vincialandnunicip3l legislation; ability towork independently and as a member of a nailtidiscipline team." There were 18 applicants who responded to the job posting and there were two vacancies to be filled. -One of the 18 applicants was disqualified and the remaining 17 applicants were rated as "marginally qualified" at the pre:screening procedure. Eight applicants were interviewed on the strength of their written application. Two candidates were successful in the competition, namely in order of selection, A Shah, whose seniority dated to June 8, 1981; and V. Ramdeo, who is credited with seniority as of May 15, 1974. The Grievor has a seniority date of January 5, 1981. The relevant provisions of the Collective Agreement are: 4.1 Men a vacancy axurs in the Classified Service for abargaining unit position or a new classified pxition is created in the baxgaining unit, it shall be ad- vertised for at least ten 110) working days prior to the established clos$g datewhenadvertisedwithinaministry, or it shall be advertised for at least fifteen (15) korking days prior to the establishedclosing datewher~~advertised service-wide. Allapplication.swillbe acknowledged. Whe.re practicable, notice of vacancies shall be pxted on bulletin bards. r~ (. - 6 - The Ministry called two witnesses to establish that on the basis of the Grievor's written application, he did not demon- strate the 'necessary qualifications to perform the job. Mrs. Ruth Hill, a Ministry Personnel Officer, testified that she conducted a preliminary screening of all written applications based on the following selection criteria: 1) Membership in Professional Accounting Association or a degree in finance or related discipline. 2) Analytical; negotiating, communication skills. -3) Proven consultative ability through working in financial management. 4) Knowledge of related provincial and municipal legislation. 5) .Ability to work independently as a member of multi-discipline team. Based on his written application, Mrs. Hill did not Ij. " '. consider that the Grievor was qualified in any of the above areas, with the exception of category 1. Mrs. Hill candidly admitted that she was unfamiliar with the job of an auditor and accordingly, the Board is of the opinion that her evidence is of little, if any, probative value. However, the evidence is clear that Stanley Pearce, Manager of the Special Projects Division - Capital Financing and Revenue c Branch of the Ministry of the Environment, was solely responsible i-’ -J- for the decision as to which applicants would be granted inter- views. That decision was made by Mr.~ Pearce without reliance .upon Mrs. Hill's initial assessments. Mr . Pearce was given the responsibility of establishing the.Special Projects Division in July 1983,which Division was accorded the task of dealing with capital investment in sewage and Gi. water treatment facilities in Ontario with responsibilities to !. 'negotiate with municipalities for payment of costs. The position in question reported directly to Mr. Pearce. or; Pearce reviewed the,qualifications of each candidate ,and,assigned an equal weighting factor to each of eight areas as fOiiOWs: ~' :. C‘., _.. 1) Professional association. 2) University'degree. 3) Analytical skills. 4) Negotiating skills. 5) Communication skills. 6) Consultative ability. 7) .Knowledge of provincial and municipal legislation. 8) Ability to work independently and as a member of a multi-discipline team. His evidence was to the effect that in a review of the Griever's application he gave credit to the Grievor for three or in possibly four points under the above selection criteria, namely in -8- categories 1, 2, 5 and 6. He testified that the Grievor's written application demonstrated that his experience focused primarily on auditing responsibilities with "some consultant experience". Mr. Pearce stated that the Grievor's written application did not demon- strate knowledge of job related provincial and regional legislation. In his opinion, the application did not establish analytical or negotiating skills or that the Grievor had any experience as a member of a multi-disciplinary team. Mr. Pearce was of the view that the duties performed by the Grievor in the private sector did not relate to the posted ,position. In cross-examination, he~admitted that several applicants, excluding the Grievor, had received letters inviting them to submit applications for the position'. In argument, the Union contended that any pre-selection of applicants must occur on the same tests as those considered in the final selection, namely qualifications and ability as set forth in Article 4.3 of the Collective Agreement. It was argued that the evidence.disclosed no standard for pre-screening and that the Employer had no record of the results of any of the other applicants in the pre-screening procedures with the exception of applicant Shah. Alternatively, it was argued that on the evidence presented, the Grievor should have received an interview as his application did demonstrate both qualifications and ability. - 9 - The ,Employer contended that the selection criteria used by Mr. Pearce during the pre-screening procedure ,was con- sistent with the job posting, and that the Griever's application failed to disclose.sufficient job related information to warrant an interview. Mr. Younger argued that Mr. Pearce had fairly assessed the Griever's written.application and that the Ministry had properly denied an interview under Article 4.3 of the Collective Agreement. Having assessed the evidence carefully, the Board cannot ,fault the Employer in its decision to deny an interview on the basis of the' Griever's written application. As has been stated inmany a,rbitration awards,.there is no obligation upon the Empkoyer in processing a job competition to inter- view all applicants. That principle is reinforced by the -wo-rding of Article 4.4 of the Parties' Collective Agreement, and in particular the initial wording of that Article which states: "anapplicantwho is invitedtoattendan interviewwithin the civil service..." As Arbitrator Swinton stated in OPSEU (Walter Borecki) and Ministry of Natural Resources, 356/82 at pages 7 and 8: "Didthe euployeract inpmpsrly, then, in failing to interview the griever? In onducting a job ampetition, ananployercsnnotba requiredto interviewall the applicants, regardless of their suitability. When - 10 - nunmrousapplications omm forward,as is ccsxmn in thepublic servicewithits lergentmberofeuployees; questiDnsofefficiencyandcost~yrequire sans screeningofapplitxtions. At times, only those maetingthebasicgualificationsmaybe considered. ,of aurse, these qualifications mist be Easonablyrelated to the job inquestion. At other tines, the lx&of apparentlygualifiedapplicsntsmaybe so large that a rankingof thenostqualifiedwillhave tocoxrandonly thosewith the highest scores will be called for an interviewandfurtherconsideration. !Ihe ranking, again, mustbereasonable,inthesensethateachcandidate's qualifications are~reasonablyevaluated. Failure to interviewanenployeewithgreater senioritythanthe successful candidatemaytilleadtoa grievance, with the senior employee arguingthatheis relatively equal." Similarly, Arbitrator Simmons set forth arbitral principles in a ~Public Service Grievance Board decision Re Mrs. Clare Colacci and Ministry of Consumer and Commercial Relations, 912/82 in the' following wording at page 4:. "In considering the general question of grievances arising from position onpetitions, it is the opinion of the Board that there isno stated, nor is there an inherent right, -~ ~. forac&diclatetodem3ndanintern&wwiththeselecticm ccmmittee. Ontheother sideof thequestion, thereisno requ~tfor-~ttointerviewallapplicantsfor a position. It is caamn practice for-gemantto select frcmallthe applicantsthosewhoare consideredbest gualifiedtofill thepost. It is at this stage that the very nature of the process requires that-g-t- decisionsaboutFeopleandto~thatthey~t~sidera varietyofattributes the candidates possess, suchas, qualifications, abilities, as well as others. It is now the duty of hhoever is responsible, to select from the whole, thosewbare cmsideredtobe thebestpeople tofillthe pst.. F " Onthe evidence, we are satisfied that the Griever's written application for the competition did not make it apparent, I 1 I I I j ! ! I , / (- - 11 - on its face, that the Grievor possessed the necessary qualifications for the job. The Board is of the view that the Employer did pre-screen the~Grievor on the basis Of qualifications and ability to perform the job as set out in the application form. The responsibility lies with the Grievor to set forth in. his written application his related qualifications and abilities in order to reach the interview stage of the competition. In our opinion, (_V,'- -he Grievor has failed in that, regard. There is no information con- tained in the written application that would indicate that the Grievor had highly developed analytical or negotiating skills, or that~he .~.had,participated as a member of a multi-discipline team. We would accept Mr. Pearce's evidence thatalthough the Grievor's written application-did ,demonstrate "some consultative ability",~ no statement .~ appears in that application to establish the degree of proven consultative ability required. for the job. 'Where an employee wishes to transfer from one Ministry tom i:'. another Ministry, it is essential that he or she should provide all relevant information on the prescribed application form to illustrate his or her qualifications and ability to perform the job. .‘2 ,,. i - 12 - An employee cannot expect that the Employer will read into an application, data and information which is not contained on the form of that application. For example, knowledge of provincial and municipal legislation related to the job is one of the qualifi- cations for the position of Senior Project Officer. There was no statement in the written application to indicate that the Grievor's familiarity withy Ontario statutes included those statutes related to the,position. Here, applicants were expected to have a general knowledge of the Ontario Municipal Act, the Ontario Municipal Board Act, the Ontario Water Resources Act, and the Ontario Public Utilities-Act. The Grievor's appl,ication failed to disclose any ,~. .,. ..~.~ knowledge of Ontario legislation related to .the job. In summary, theGrievor.failed to, make,,it apparent'in his applica,tion form that he did,in fact,possess.the requisite qualifications. i However, in fairness to the Grievor, we would comment ~that we were very impressed by the forthright manner in which he presented his evidence. Without question, he is well qualified for the position that he now holds as Tax Auditor 3 for the Ministry Of Revenue. In the result, we must find that the Ministry has acted properly in the denial of an interview to the Grievor on the basis :.j. ‘. :. I-- i . - 13 - of his written application. Accordingly, this grievance is dismissed. DATED at.Brantford, Ontario, this 11th day of September, A.D., 1984. c- - ,d-- - dez-l - 7 R. L. .Vqity, Q.C., Vice Chairman I DISSENT - SEE ATTACHED H. Simon, Member P. D. Camp, Member 42/84-Balics DISSENT I regret that I cannot agree with the majority decision in this case. The issue before us is, should the grievor have been given an opportunity for an interview for the position advertised by the ministry. The employer agreed that the grievor failed to state in his application for the position all his qualifications and experience and gave this as one of the reasons for denying him an interview. The grievor on the other hand argued that he answered all questions to the best of his ability. The employer agreed that Mr. Balics is qualified in 3 and possibly 4 of the 8 areas required for the position. The employer has failed to produce evidence as to how many points each of the other 8 ~ applicants who were called for an interview had. It's interesting to no.te that Mrs. Hill in her analysis had only given Mr. Balics 2 points, although she agreed in cross-examination that he had the necessary~qualificationsin several other areas. I fail to agree that Mr. Pearce was not influenced by Mrs. Hill's recom- mendations in making his final decision. In my view the employer did not properly evaluate Mr. Balics' ability and experience to do the job. It is also my view that Mr. Pearce set the standards for the interview much higher than those mentioned in the ad. In any event, we are not required to decide at this time whether or not Mr. Balics was qualified for the job; all we have to decide is whether he should have been given an interview. In a case before vice-chairperson Cathy Swinton (149/77 - Henry Remark) . . . ‘. . . . . -2- -. ; the Board made the following comments: "The Board wishes to add some further comments with regard to the interview and selection procedure employed by the interview panel. As the board has pointed out on previous occassions$ fairness in selection procedure is important to employees ,acceptance and trust of the job selection procedure. Once again however, the process used has failed to meet ideal standards of fairness. A second problem with the procedure used arises out of the Standard Interviewers Form. Again, the appearance of or effort at fairness falls short." * sic It is my view that in the case before us, the employer has failed to properly assess Mr. Balics' qualifications and he was treated unfairly by denying him an interview. It is only fair and reasonable that he be given the opportunity for an interview and I would so find. Harry Simon, Board Member