HomeMy WebLinkAbout1984-0140.Alam.90-10-09EMPLOY&S DE‘4 COURONNE
DE L’ONTMIO
DES GRIEFS
BETWEEN
IN THE NATTER OF AN ARBITRATION
Under
THE CROWN ENPLOYEES COLLECTIVE BARGAINING ACT
Before
TEE GRIEVANCE SETTLEHENT BOARD
OPSEU (Alam)
- and -
The Crown in Right of Ontario
(Ministry of Community & Social Services)
BEFORE: R. J. Roberts vice-Cha
J. McManus Member
D. Andersen Member
Grievor
Employer
rperson
POR THE
GRIBVOR
8. Rutherford
Counsel
Gowling, Strathy a
Henderson
Barristers a Solicitors
FOR THE
EMPLOYER
C. Slater
Senior Counsel
Human Resources Secretariat
Management Board of Cabinet
June 16, 2.7, 1989 November 30, 1989 BEARING:
This is a very old case, having to do with a job competition
which took place in November, 1983. The main reason for the delay
was that the grievance leading to this arbitration complained of
two job competitions, and in a Memorandum of Settlement the parties
agreed to hold this particular matter in abeyance until the other
was resolved. After this occurred, the present matter was brought
on for hearing by counsel for the grievor.
The position in question in the present arbitration was for a
Counsellor in the Sole-Support Mothers' Program operated by the
Ministry of Community and Social Services ithe Ministry) out of its
offices on St. Clair Avenue East in 'Toronto. The job posting for
this position described its duties and qualifications as follows:
'The successful candidate will promote, facilitate and monitor
the employment of Sole-Support Mothers in receipt of Family
benefits and General Welfare Assistance in accordance with
individual ability, career interests and employment market
trends.
Duties will include: Identifying employment potential,
developing individualized training plans, providing supportive
counselling to assist clients in overcoming barriers to
employment; assisting clients in securing employment support
services; liaising with Federal C.E.I.C. Employment
Counsellors and Income Maintenance field staff on related
matters; preparing and presenting Orientation-to-Empioyment
Course; and maintaining associated records.
Qualifications: Proven ability to establish and maintain
satisfactory counselling relationships with clients. Ability to appraise clients' occupational interests and skills, and
instruct clients on resume/application preparation, job interview techniques, good working habits, empioyer expectations, job requirements, etc. A working knowledge of related income maintenance, social and labour legislation. A sound knowledge of occupations and labour market trends. Good
verbal and written communication. Tact, assertiveness and
interpersonal skills.
Ms. Lynne Newton, the then Co-ordinator of the Sole-Support
Mothers' Program, testified that the program started out as a
joint-venture between the Ministry and Canada Employment and
Immigration. In August, 1983, however, the project received
permanent funding and all employees-became ,members of the permanent
managerial or classified staff.
The purpose of the Counsellor in the Sole-Support Mothers!
Program, Ms. Newton explained, was to assist Sole-Support Mothers
On social assistance to attain economic ~independence. The
Counsellor performed this function by assisting the client to map
out her goals and upgrade her current assets, e.g., her prior
experience and education, in an effort to progress toward achieving
these goals. This assistance might take the form of referring a
client for educational upgrade, job training, counselling, job
search assistance, etc.
Elaborating upon the counselling aspects of the job, MS
Newton stated that a model which was followed in the program was
non-directive counselling, i.ei. counselling in which the ciient'
makes the decision as to what her plans are and what to do in
pursuit of these plans. Otherwise, Ms. Newton stated, the client
will not follow through.
3
In order to achieve this. Ms. Newton testified, the Counsellor
needed a wide-range of knowledge, including the state of the labour
market, the housing market, day-care availability, additional
sources of financial assistance for job searches, and educational
programs.
In the initial encounter with the client, Ms. Newton said, the
Counsellor begins by asking a series of questions on the client's
life, situation, number of children, availability of day-care,
educational background and work experience. This information then
gives the Counsellor and client an idea of what they have to work
with. Then the Counsellor asks the client where she would like to
be in five years. The next step is to have the client decide what
to do to achieve that goal. The idea is, Ms. Newton added,' to
approach the client with an agenda but not impose that agenda upon
her. The Counsellor acts as a catalyst or facilitator to assist
the client to work through the problem-solving process and come up
with potential solutions by herself.
In June, 1983, one of the Counsellors in the program, Ms. P.
Graham. left. The vacancy was filled on an interim basis by Ms. J.
Athanolopoles, who was a Field Worker in the Southeast local
office. Later; when the job was posted on September 28. 1983, Ms.
Athanolopoles entered into the competition but was unsuccessful.
4
The Interview panel, Ms. Newton testified, was comprised of
herself, Ms. Cheryl Baker, the Co-ordinator of the Counsellors, and
Ms. Reiche, the Income Maintenance Manager at the Northwest local
office. The grievor and the successful incumbent, Ms. Dorothy
Mercer, who was an Income Maintenance Officer, were 'located at the
Northeast local office.
.
Ms. Newton testified that when the members of the panel got
together, the posting had qlready been developed by Ms. Baker'and
another Manager, Ms. B. Saunders, based upon the job specification.
The job specification read, in pertinent part, as follows:
5
Summary of Dutha and Reawnsibiliti~s: contLnu.d
- proridlnq follaop 001ms~llin9 to aployed cllonta l n weded.
2. Prapares snd Prosants l Oriwation-to-mplo-t. Saiaarm by
parforminq such twka l s8
- resarchinq, dwdopinq and prrssntinp aourses for o&ienta no
teach basic joa march l tllla( praparatioa of cemmsS1 intar*iav
preparation and prxtiei~ tine, faaily ad nonay mnaommtt
458 -
of
l *aiwinq Pod*ral C.I.I.C. ?hplopant counsellors in tha prmssntation
similar wmiaar*~
- relaXin and mewing resources fra tha comaunity for inclusion
in the wdaart
- rwhrinq client's perforunca and achisvawnt during the training period to determine if frrrthar training im rquirod or wlmther goah
h&w beea l chiwod,
- providing indiv1dtul or group saaalona on wploybent rupport resource
- provldlnq counrellinq and srtpport to participmt~ l a noosury.
3. P*rforor auxiliary duties such asa
100 -
eampletinq corraspondanes and reports:
- Leaping recordsr
- prawrinq statisticsl
i . . awiqn..5.
- exploring dltmnatiw options md pr*f*rrnc*s vitb client rasultinq
in an indlvidoalirod plan including identification 02 ‘upport weighs
needed. 1.a. day oar., Lioancial etc.
ot : proriding suppOrtlva ~0u1~~llin9 to amist eliant iA dealing vich
idmtiiiod problems, 1.0. inadoquata budqotinq, houainq, low of confldan.
absence fraa program, lack of job search skills,
- mnsultlnq with rafmrlnq asa vorkorr as vocational plrnr are dovelo D=J
- SSSiSting client In seeurLng needad emunity re#ourcem. l.e.houainq,
day care, ate.
- reViWinq dlent*a pmrfomanco sad l chiovaMnt throuqhout trainlnq pri
to datermine if goals have ham whhvrd or XI further/different traininq
*m r*quird.
- PrcDotlnp the mplopsnt oi
.“d
job-ready clients through ll~lson with CLIC
iont with l mnloY*rS.
r---- 6
With the job posting and the position specification in front-
of them, Ms. Newton went on, the panel developed the selection
criteria. In doing so, she testified upon cross-examination, the
panel tried to following the weighting in the job specification by
providing 'for an even split between skills in individual
counselling and group facilitating. In this process, the following
selection criteria were developed:
SELECTION CRITERIA
SKILLS REOUIKED
1. CounSellinK and Facilitating Skills
. ability to establish and maintain satisfactory counselling
relationrhip vith clients
. ability co asseSs clients’ occupational interests and skills
and job search techniques
. ability to present material to and act as facilitator for
groups of clients
1
2. Job Related Knovledse
. good working knowledge of job search techniques
. good working knowledge of labour market trends and
occupation5
'. good working knowledge of related income maintenance, social
and labout legislation and servicer including Employment Support
Initiative
3. Communication Skills ,
. good verbal and written corsmunication
. ability to comunicate effectively 4th groups of clients
. ability to liaise an& negotiate with people in a variety of
settings
After that, Ms. Newton said, she and Ms. Baker got together
and drafted the questions. They then reviewed these questions in
detail with Ms. Keiche in a one-day session to make sure that all
of the questions were understood by all members of the panel.
The
questions were then finalized and sent off to be reviewed by Human
Resources.
For all questions, Ms. Newton stated on cross-examination, the
~panel marked down all possible answers and then weighted them.
Again, the weighting was designed to produce an even split between
individual counselling and group facilitating skills. For the most
part, Ms. Newton added, the panel tended to avoid assigning only
one point or a half-point to an answer. It was felt that this
might produce some unfairness to the candidates.
8
In all, Ms. Newton testified, there were about 18 applicants.
Some were screened out in an initial procedure by the Human
Resource Department and then the panel itself did another "screen".
In doing so Ms. Newton said, the panel went through every
application and compared the ,information against the job
specification and posting to determine if there was a match. In
the end, 9 candidates were interviewed.
During the interview process, MS'. Newton stated, all
candidates were asked to come in 15 to 20 minutes early. They were
given a copy of the job specification to review before the
interview commenced. As to.the members of the panel, Ms. Newton
testified, they reviewed each person's application prior to his or
her interyiew.
In the course of each interview, Ms. Newton said, each member
of the panel had in front of her the questions which would be put
to each candidate. Beside each question there. was a blank space to
be filled out by the panelist. Also available to each panelist,
Ms. Newton stated, was a sheet of suggested answers. 'The responses
of the candidates were marked according to the suggested answers,
Ms. Newton said, but in evaluating the answers the panel also
looked at the job itself -- the job spec. was in front,of them --
and Ms. Newton herself had a number of years' experience in the
job. If an answer was not the same as a suggested answer,
r 1 9
Ms. Newton went on, the panel members used their discretion in
marking based upon these types of factors.
At the outset of each interview, Ms. Newton testified, she
greeted' the candidate, introduced the panel and explained the
interview process. She then asked the first question, with the
next panellist asking the next, and so on. Each panelist wrote
down on her score sheet the responses of the candidate. A question
was repeated if there was a request to repeat it: however, Ms.
Newton added, if the panel felt that a candidate clearly
misunderstood a question they could repeat it on their own but that
situation did not come up very much. One thing that the panel
would not do, Ms. Newton said. was expand or eiaborate upon a
question.
When asked by counsel for the grievor specifically about
question 19,' where, it seemed the grievor clearly misunderstood
the question, Ms. Newton replied that she could not recall if the
question was repeated. She then added that she did not think that
question could be read in the way in which the grievor understood
it, i.e., as if she were the supervisor. The grievor was the only
person who misinterpreted that question, Us. Newton said. She said
that she could not imagine intervening -- as the grievor suggested
19. How do you prefer to resolve staff conflicts?
Answer: ..problem solve either individually or in a
team.
10
in her answer -- in a peer group situation as if she were a
supervisor. The proper way to handle the situation, Ms. Newton
said, was to refer the matter to the Co-ordinator so that the
problem could be resolved as a team, and that was the expectation
of the panel.
Once,the candidate left the.room, Ms. Newton went on, each
panelist reviewed the answers and scored them question-by-question.
After that, they went back and discussed their records of the
candidates' answers to ensure that each did not miss anything.
Then, if a panellist had missed something, she might make an
adjustment to her mark. Thereafter, each panellist would total up
her score for the candidate.
Because of this, Ms. Newton stated, the scores by each
panelist differed. She said that the panel did not want to score
by consensus. When the three tota1.s were in, they were averaged
together, and the average became then score for the candidate.
Thereafter, Ms. Newton hand-wrote all of the individual scores down
upon a tally sheet.
Apparently, there were no reference checks or contacts with
the immediate supervisors of the candidates prior to their
interviews. After all the interviews were completed,~Ms. Newton
testified, she called each candidate's supervisor and asked them to
comment on certain questions which appeared on the Ministry's
.
11
standard reference check form. These included: quality of work:
quantity of work: strengths: and, weaknesses. She then asked the
supervisor to pull the personnel file of the candidate and read the
pertinent parts of the candidate's latest performance appraisal out
to her. While this was being done, Ms. Newton made notes which
were attached to the reference check form. Finally, Ms. Newton
asked the supervisor to look through the personnel file and inform
her of anything which appeared significant. She then made
notations with respect to this.
After this, the members of the panel met once again. They
reviewed the applications, answer sheets and the reference checks.
It then became apparent, Ms. Newton said, that there was going to
be some difficulty in differentiating among the top 4 candidates
because there was a small spread among their scores. Ultimately,
Ms. Mercer, whose score placed her in second place, was awarded the
job on the basis of seniority.
The grievor was not among the top 4 candidates. In fact, of
the 9 candidates who were interviewed, she came in last.
As to the interview with the griever. Ms. Newton stated char,
it was a difficult one. She said that she gained the impression
that the grievor had come in with her own agenda of information she
,
.
12
was going to get before the panel regardless of the questions.
Either that, Ms. Newton said, or the grievor failed to understand
the questions and had difficulty in answering them.
The grievor testified that she applied for the position in
question because she felt that she was very qualified, that she had
everything the Ministry was looking for. The grievor stated that
she had two Masters of Sociology degrees: one from the University
of Karachi in 1963,.and one from the University of Toronto in 1972.
She began working for the Ministry of Education, the grievor stated
, in 1970. This employment was as a Statistician: Then, in about
1974, the grievor said she joined the present Ministry and worked
as a program analyst until 1378. Then< she joined the Northeast
office of .the Ministry as a Social Worker Assistant and stayed in
that position until January, 1988, with a few secondments.
At the time of the competition, the grievor added, she was on
a secondment as a Field Worker in the Northeast local office of the
Ministry. She added that in addition to this, she had considerable
exposure in private and volunteer capacities to the kinds of skills
that were required in the job specification.
Expanding upon the match between her prior experience and the
requirements set forth in the job.posting, the gr,ievor stated that
she felt that she met it because she had worked with clients in
different settings and programs and had proven that she possessed
\
13
the ability to maintain a satisfactory counselling relationship
with clients. There were, she said, no complaints, and, in fact,
she was asked by the Ministry of the Attorney General to act as an
expert witness for Indian immigrant clients. The grievor added
that she had appraised occupational interests and skills during her
tenure in the Vocational Kehabilitation Program and had instructed
clients in preparing for interviews and making out resumes. She
also, she added, had a working knowledge of income maintenance,
social and labour legislation. She possessed sound knowledge of
labour trends, had good verbal and written communication skills,
and had the requisite tact, assertiveness and inter-personal
skills. The grievor added that she spoke three languages fluently
English, French and Urdu. She also was abie to communicate in
Punjabi and Sindhi. These languages, the griever added, were used
frequently in the Ministry because many clients were non-English
speaking.
In making her application, the grievor.sent in a two-page
resume and a hand-written cover letter. The letter actually
related to this competition and the other competition which was the
subject matter of the prior proceeding while the present matter was
being held in abeyance. The cover letter was as follows:
7l-L Rcf"LJ-~%
fd- hh-,
Y&+----q + co-c.2 kL-;La,
II0 i I-L.J- aA4 , v.
3°C t"^
f6 4+.-k E #V-i
14
.
When it came time to be interviewed, the grievor stated, she
was surprised to find that for some reason, the panel members did
not receive the secpnd page of the two-page resume which was
attached to the foregoing letter. The second page, she testified,
contained information regarding her time as a scacistician with the
Ministry of Education. She was not sure, she said, whether it
mentioned her volunteer work or her secondment as a Field Worker. '
She agreed that her cover letter reflected and expanded upon the
information that was contained on the missing second page. The
grievor also stated that the panelists only made the position I
\’
17
description for the job avaiiable a few minutes prior to the
interview. She agreed, however, that she had the description in
the job posting well in advance of the interview and used it
extensively in preparing her letter of application. Upon cross-
examination, she agreed that when she came to be interviewed, she
had a "pretty good idea" of what the job entailed. She added that
from the job posting, she realized.that skill in communication was
a qualification for the job and that it was going to be one of the
things that the panel would be looking for.
According to the grievor, the interview lasted for
approximately 45 minutes. She stated that there were a couple of
questions which might be taken in more than one way and so were
ambiguous.' She'also stated that if'she asked for clarification, it
was denied.
Counsel for the Union then drew the grievor's attention to the
final category on the question sheet, which'was worth 22 out of
possible 120 points, and which read as follows:
Communications
. concise
. answers well thought out
. clearly expressed
. able to communicate effectively under stress
With respect to this category, the grievor stated that the panel
i
18
never told her that she was being marked on her ability to
communicate. Upon cross-examination, however, she agreed that she
understood that one of then qualifications for the posting was good
written and verbal communication skills.
Upon cross-examination, the attention of the grievor was drawn
to her letter of application, and, in particular a number of
spelling and grammatical errors within it. The grievor replied
that she wrote the application in a hurry because she was rushing
to meet the deadline and had to do it on a lunch hour.
As to.the reference check relating to her own application, the
grievor took issue with some apparent omissions from it. The
supervisoc~ from whom the reference check was obtained was Pat
Thompson. Ttio negative comments which were made about her, the
grievor stated, were not brought to her attention during an
evaluation short,ly before the competirion began. These comments
were that the grievor was easily bored doing things that she was
not interested in and had difficulty paying arcencion to detail,
doing things quickly and leaving loose ends. The grievor stated
that she could not understand these negative comments, and
suggested that they might have been retaliatory in nature, because,
she thought, she had already begun the process of grieving a prior
competition in which Pat Thompson was a panelist.
14
The grievor also stated that she was surprised that Pat
Thompson never advised Ms. Newton that when she last appraised the
grievor she commented upon the grievor's promotability to a Field
Worker position. Also, there apparently was no mention of the
grievor's subsequent secondment to a Field Worker position and
because of this, no check by Ms. Newton with the grievor's
supervisor on the secondment to see how she was making out.
As to this, Ms. Newton testified on cross-examination that she
was uncertain whether she knew that the grievor had been on
secondment, as a Field Worker for four months prior to her
interview. She stated that she may have spoken to the supervisor
to whom she was seconded and got referred back KO Pat Thompson, but
she was notsure. She stated that she could not recall. One thing
was .clear, however, Ms. Newton stated. and that was that Pat
Thompson had a "full picture" of the grievor's counselling
abilities. She stated that she had no reason to suspect that there
was any conflict, personality or otherwise, between the grievor and
Ms. 'Thompson and therefore was satisfied to take Ms. Thompson's
word at face value.
Ms. Newton also testified that the recommendation of Ms.
Thompson that the grievor be promoted to a Field Worker position
was not necessarily pertinent to the position at hand. She stated
that the position of Counsellor to Sole-Support Mothers was a
different one. requiring a 1, arge amount of counselling, while the
Field Worker position implied a minimal amount of counselling. She
agreed, however, that a Field Worker position would have been a
good "bridge" to the one at hand because counselling is a generic
skill which can be transferred and enhanced.
When asked about the fact that no marks were allocated to the
reference check, performance appraisal, education, and pertinent
previous experience, Ms. Newton pointed out that 6 marks were
allocated to these in the first two questions on the interview. She
added that this was done because at the time, Ontario was de:
emphasizing credentialism and emphasizing experience in recognition
of the fact that these qualifications can be obtained in other than
formal ways.
Ms. Newton also disputed on cross-examination the suggestion
that the panel was unaware of all of the grievor's qualifications
because the second page of the grievor's resume was missing. Ms.
Newton stated that this obviously did not handicap the grievor
because she made it through the initial selection, which depended
entirely upon review of the information provided in writing by the
applicants, to the interview stage. As a result, Ms. Newton
stated,, the grievor's cover letter, along with the first page of
her resume, must have indicated that she was sufficiently qualified
to receive an interview.
As to the grievor's ability to use other languages, Ms. Newton
indicated that this was not necessarily an advantage because the
Ministry had readily available translation services. She agreed,
however, that the necessity of calling in an interpreter might
hamper the counselling relationship.
In response to a suggestion on cross-examination that
consensus scoring was used, Ms. Newton categorically denied it.
She asserted that each interviewer silently scored on her own.
Then they would compare their records of answers to ensure that no
interviewer missed any information. Only after that would the
scores be adjusted at the discretion of the interviewer, but all
adjustments when to the benefit of candidates and not to their
detriment.
Ms. Newton agreed that the final score reached by the
interviewers for each candidate were very similar, although not
identical. She stated that on a "couple of time" she tended to be
tougher than the others.
Ms. Newton agreed that the panelists did discuss the scoring
of question 19, relating to communication skills. As to that
question, which in reaiity was an evaluation of way in which the
candidate communicated in the interview and in the application
process, she stated, there was a need for panelists to communicate
among themselves. It was necessary to determine if the answers
were thought through by the candidate and clearly expressed. She
22
agreed that on this question, all three panellists gave the grievor
13 marks out of 22. The successful candidate, Ms. Mercer received
17 marks from all three panellists. Ms. Newton added that the
range of scores for all candidates regarding communication ability
was not "huge".
Finally, Ms. Newton was asked upon cross-examination whether
her testimony in the present case might have been influenced by the
fact that she was present during two days of the hearing of the
grievor's previous grievance until being requested to leave upon
motion of Union counsel. Ms. Newton agreed that she was present
for the cross-examination of Ms. Barbara Saunders, who chaired the
previous seiection panel, and took notes of her testimony upon the
request of..counsel for the Ministry. She stated emphatically that
it was not in anticipation of preparing for the present hearing.
She said that it had already been decided that the board would hear
the one grievance and she understood that the instant grievance
would not be heard. She was most surprised,. she stated, to hear
that this case was brought on.
Upon completion of the evidence, it was submitted by counsel
for the Union that this was a case where the job competition
suffered from fatal flaws and in which, because of the passage of
time, the only adequate remedy was to award the grievor the
position. It was submitted that there were three fatal flaws in
the procedure and they were as follows:
23
(1) The lack of any systematic gathering of information
regarding the grievor's ability to do the job;
(2) The use of consensus scoring by the panel; and
i3) The existence of a negative bias toward the grievor on
the part of the panel.
The Board will deal with these submissions seriatim
hereinbelow:
1. No Systematic Gathering of Information Regardinb the Grievor's
Ability
Upon this issue, counsel for the Union relied upon Re Quinn
and Ministry of Transportation and Communications (1979), G.S.B.
ii9178 (Prichard). In that case, the Board held that the selection
process used by the Ministry was inadequate to evaluate the
relative qualifications and abilities of the applicants "in that it
failed to elicit in systematic fashion sufficient information to
permit a fair and reliable judgment about the candidate." Id. at
p. 13. Four defects were noted by the Board: (li only one of the
panelists read the personnel files of the candidates; i2)
supervisors were not contacted to provide evaluations of the work
performance of the candidates; (3) no systematic information was
gathered regarding relativeability of the candidates to perform
certain tests, when 50% of the job specification referred to that
quaiification; and i4) total reliance upon interview questions to
evaluate the supervisory and leadership capabilities of the
candidates.
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24
As to the present case, counsel for the Union stressed that
there was no reading of the personnel files by the entire panel: no
consultation by the entire panel with the supervisors of the
candidates, resulting in no recognition of the grievor's secondment
as a Field Worker and no notice of Pat Thompson's comments
regarding the grievor's promotability. There also, it was noted,
was no contact with the grievor's supervisor during her secondment
as a Field Worker. With respect to the Field Wo~rker position, it
was.suggested that this was a very similar kind of job to that in
the present competition.
The Board, however, does not find any fatai defect here. We
accept that there was a defect in the lack of direct consultation
of personnel files; however, we cannot conclude that this omission
prejudiced the fairness of the competition. As Ms. Newton
testified, she could not recall whether she was aware of the
grievor's secondment as a Field Worker, but had no reason to
believe that Pat Thompson would have withheld any relevant
information. After all, it was Ms. Thompson who made the initial
comment regarding promotability to a Field Worker position. Absent
a showing of a negative bias on the part of Ms. Thompson, it is
difficult for the Board to infer that during the conversation
between Ms. Thompson and Ms. Newton all relevant background
information regarding the griever's prior experience and
suitability would not have been brought forward.
.
25
As to the lack of consultation with the grievor's supervisor
during her secondment as a Field Worker, we accept once again the
submission of counsel for ,the Union that this was a defect;
however, we do not consider hit to be a fatal defect. In addition
to the comments we have already made, we would note Ms. Newtons
evidence that the present position was distinct from that of a
Field Worker, because it was a step-up from that position and
involved a vastly increased demand for counselling skills. We also
note that in the competition, there were Field Workers, such as Ms.
J. Athanolopoles, who also competed for the job but like the
grievor were unsuccessful.
2. The Use of Consensus Scoring
As to the use of consensus scoring, counsel for the Union
referred us to Ke Bent and Ministry of TransDortation i1989i)
G.S.,B. #733/86 (Fisher). In that case, the members of the
Selection Panel "discussed and ultimately agreed on a score for
each individual questioned." Id. at p. 1. The Board found
consensus scoring of this type to be inappropriate because the
requirement for agreement raised the potential for "horse-trading"
between panelists and dominance by one member over the others. it
was the requirement of agreement which caused the problem. The
Board noted, "The Selection Committee Members could quite properly
discuss their individual viewpoints and ask questions of each
other, however, but when it comes down to the actual scoring, each
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26
member of the Selection Committee must put down his own opinion
without the necessity of reaching a consensus. Therefore, this
Board would envisage a free and lively discussion among the
Selection Committee Members before individual scoring was exercised
but ultimately, the member must score the candidate as he deems fit
and not 'so as to please the other members of the Selection
Committee." &d. at p. 2.
In the present case, the evidence does not disclose the
existence of consensus scoring in any but the last category, i.e.,
the question of ability to communicate. Because this was not really
a question but rather. a category, it required discussion among the
panelists and seemed to be the subject of agreement before a score
-was reached. It is possible, therefore, that to some degree the
dangers which animated the Board in cent might have been present.
Although this, therefore, represents a flaw,~ we do not
consider it to be a fatal flaw, at least ,with respect to the
candidacy of the grievor. As Ms. Newton testified, the scores for
all candidates in this category were close. 'The grievor received
a score of 13 on this question and the successful incumbent Ms.
Mercer received a score of i7. They were divided by oniy 4 points.
The grievor, however, ended up in last place in the.competition --
far more than 4 points behind the top 4 contestants. Accordingly,
we do not see that this was a defect which ought to have a
determinative effect in the circumstances of the present case.
3. Negative Bias Toward the Grievor
It was submitted by counsel for the Union chat the competition
was unfair because of a negative bias on the part of Ms. Newton, at
least, toward the grievor. This negative bias, it was submitted ,
was manifested in the failure to request the second page. of the
grievor's resume, the failure to investigate adequately the
grievor's background in the reference check made for her, a value
judgment of the.grievor which was made by Ms. Newton in recording
the grievor's answer co a question during the interview, and,
finally, Ms. Newton's alleged evasiveness during cross-examination.
Starting with the last citation of bias and progressing back
from there, it must be said that the Board found no evidence of
evasiveness or bias in the testimony of Ms. Newton. The board
finds that, as much as can be expected from any witness testifying
about events long past, Ms. Newton was forthright and consistent
during a somewhat lengthy and persistent cross-examination. The
same is true with respect to the personnel file check with the
grievor's supervisor. While, as the Board has already indicated,
the panel was not as thorough as it should have been, there was no
evidence to indicate chat this lack of thoroughness emanated from
a bias against the grievor.
As to the comment upon the grievor's answer co one question
during the interview, this requires further dilation. In response
28
to a question which asked the candidate co discuss how she would
deal with a person in the group who monopolized time.while she was
trying co draw a shy participant, the grievor responded that she
would somehow try to change the direction of the discussion, give
the monopolizer something else to do, tactfully stop the
discussion, or make it sound that it was being. done as a "favour"
for the facilitator. Ms.
Newton gave the grievor zero .out of 8
possible points for this answer and stated in the "comments"
section of her answer sheet, "this is controlling and manipulative
and does not deal:with the problems, and lets the monopolizer
control the group."
Ms.. Newton explained on cross-examination that the proper
answer would have been to acknowledge the monopolizer and then move
onto someone else. She said that she would never attempt to
change the direction of the discussion or tell the monopolizer that
he or she had spoken enough. That, she said, would not be
respectful of group dynamics.
It is difficult for the Board co derive any inference of bias
from this comment. It was, perhaps, unfortunately worded, although
the Board is aware that such words as "controlling" and
"manipulative" are not uncommon in the jargon of social work
professionals, especially, when, as here, discussing a situation
involving group dynamics. The Board also notes that on this
.
29
question, all members of the panel, and not just Ms. Newton, gave
the grievor a mark of zero.
Summing up, then. it is the conclusion of the board chat while
this competition was, in some respects, flawed, it was not fatally
flawed. As is well established in the jurisprudence of the Board,
job competitions must be evaluated in a realistic light: they need
not achieve perfection in order co pass the scrutiny of the Board.
so, for example, in Re Saras and the Ministry of Labour (1987)
G.S.B. X457i85 iSwan), the Board concluded that a selection process
as a whole was not unfair nor calculated to lead to an incorrect
result despite the fact that the panel did not look at the complete
personnel files of the candidates, the scoring was by consensus and
there were incorrect assessments of the attendance records and
communications skills of the grievor and the successful incumbent.
In Re Simmonds and the Ministry of Government Services (19833,
G.S.B. #213/83 (McLaren), the job competition passed scrutiny
despite the fact that there was no consultation of personnel files,
no consultation with supervisors and consensus scoring. In &
Starazds and Ministry of Natural Resources (1983), G.S.B. 188183
(Jolliffei, a job competition was upheld despite flaws similar co
chose found in Simmonds, supra.
Accordingly, it is the conclusion of the Board that the
grievance must be dismissed. Upon consideration of the evidence
the selection procedure as a whole was not unfair co the grievor
.
30
but was, in fact, in accordance with the requirements of the
Collective Agreement.
DATED at London, Ontario, this 9th day of October
1990.
.,4,~ ,._.__ _.__~._.~_~__ __,; ‘.-I,, _. ,;;;p -;
/--... ,’ ,. ;
R.,J.,Foberts, Vice-Chairperson
.("~ ;.< ~t&amA.
J. McManus, Member
yj:)p(.,( _&j&( ,,
D. Andersen. Member