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
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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~
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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.
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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
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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.
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(3)
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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.
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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
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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: ~' :.
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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
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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.
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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
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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,
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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.
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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.
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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
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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)
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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."
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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