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HomeMy WebLinkAbout1984-0180.Trendell.84-10-04::. /,: ‘FT. . ..N :. ..- ‘.1. .:, ..:;; 1, IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: R. J. Roberts I E. McVey E. Orsini . For the Crievor: Ms. Joanne Miko For the Employer: Hearins OPSEU (Dan Trendell) and Griever The Crown .in Right of Ontario (Ministry of Health) Vice-Chairman Member Member Classification Grievance Officer Ontario Public Service Employees Union Mr. W. J. Corchinsky Chief Staff Relitions Officer Management Board of ‘Cabinet August~2, 1984 SO/84 Employer ~ 2.. , AWARD This arbitration arose out of the rejection of the grievor's application in a competition for a vacancy at the Mental Health Centre in Penetanguishine. In rejecting the griever's application, the Ministry took the position that he was not "qualified" for the job because of a potential conflict of interest arising out of the fact that his father was the Supervisor of the department in which the vacancy occurred. For reasons which follow, the grievance is dismissed, On January 18, 1984. there wasajob posting for two Utility Mechanics to work in the Maintenance Department of the Mental Health Centre in Penetanguishine. Eleven persons, including the grievor, applied. Shortly after the closing date for the competition, February 1, 1984, Mr. N. Haley, a Personnel officer at the Centre, noted the grievor ' s application in the competition file. This led him to recall a directive from Mr. L. W. McKerrow, the Administrator of the Centre, requiring that Mr. McXerrow be made aware of any competitions involving next-of-kin. The grievor was the son of the Supervisor of the department in which the vacancies occurred. Moreover, to Mr. Haley's knowledge, the griever's father was slated to chair the Selection Committee. Mr. Haley notified his supervisor, Mr. J. Callas, of the potential conflict that might arise out of this relationship. i 9 .~11; 3. On February 3, 1984, Mr. Callas sent the following memorandum to Mr. M&arrow: O/83, I wish I AS required in your memo of June 1 to of al bl cl d) 'i .;; 5,. e) f) advise you of a competition involving members one family. Competition HL-32-07-84 for two (2) Utility Mechanics, classified Maintenance Mechanic 2, was posted Jazary 18/84 and closed February l/84. Eleven (11) applications were received including one from Daniel Trendell, Cleaner 2. Trendell's application is one (1) of seven (7) that appears minimally qualified for the position. and, Mr .' Hugh Trendell, Maintenance Superintendent, is the Maintenance Department Head. The position of Utility Mechanic reports' to Mr. Trendell. Mr. Trendell is the Chairman of this competition. Re is Dan Trendell's Father. and, Dan -Trendell, age 23 has employed at M.H.C. years, been since September 1980 as a Cleaner 2 in the Housekeeping Department with 2 previous summers as a student working in the Stores Department. The summer of 1977 he worked as a Mechanic's Helper and parts salesman at the Cambridge Truck Centre. His resume indicates~ that since 1973 to the Present he has been employed as a part-time +lechanic/General Maintenance with Trendell Racing Engines, owned and operated by his father. Without completing the entire .Recruitment process, I am unable to suggest that he is the most qualified applicant. Yours truly, "John Callas" John Callas, Regional Personnel Administrator. I .’ 1 Apart from notifying Mr. McKerroW of the potential conflict, this memorandum also made an assessment that the grievor's application was "one . . . of seven . . . that appears minimally qualified for the position." On the same day, February 3, 1984, Mr. McKerrow sent a memorandum to Mr. R. Oss, Director, Human Resources Branch, Queen's Park, in which he recommended that the grievor's application not be allowed. This memorandum read as follows: In June of 1983, I set up a procedure whereby hiring of next-of-kin would be brought to my attention before any final commitment had been made. Attached, is a report I have received from Mr. Callas on the application from Mr. Dan Trendell for a position in the Maintenance Department which is headed by his father, Mr. Hugh Trendell. In my opinion, we should not allow such an application. Having immediate members of a family work in a subordinate supervisory relationship is likely to cause problems. Even if the normal work functions are carried out i.e. discipline, evaluations, etc., other staff would certainly be suspicious of favourtism between members of the immediate family. I have referred to the Manual of Administration and reviewed the policy on hiring a relative, There is only a prohibition between spouses. However, the Manual of Administration points out that the Deputy Minister may by appropriate written notice extend the above policy to other members of an immediate family. 1 would appreciate your support in obtaining the appropriate written notice from the Deputy Minister. If you require further information on this matter, please do not hesitate to contact me. "L.W. McKerrow" L.W. McKerrow, Administrator. . .i 5. On February 17, 1984, Mr. McKerrow received written notice from the Deputy'Minister approving his recommendation that the grievor's application should be rejected. Mr. McKerrow conveyed this information to the grievor. Thereafter, on February. 23, 1984, the qrievor filed the grievance leading to the present proceeding. At the hearing, the parties essentially addressed two issues. The first issue involved the question whether the Ministry infringed the gxievor's rights under the Ontario Human Rights Code, S.O., 1981, c.53 by refusing the grie,vor "equal treatment with respect to employment" when his application was rejected. The second issue involved the question whether the Ministry violated the provisions of Article 4.3 of the collective agreement by applying to the qrievor an improper criterion of "qualification" when his application was re,jected because of a potential conflict arising out of his status as the'son of the supervisor of the relevant department, Turning to the first issue, -the facts of the present case do not appear to give rise to any infringement of a right that, the qrievor might have had under the Human Rights Code. While it is true that s.4(1) of the ,Human Rights Code broadly states that "every person has a right to equal treatment with respect to employment without discrimination because of . . . family status"! ~~ the Code also expressly .A .,. 6. provides that this right is not infringed where advancement in employment is withheld, as here, because of a parent-child relationship. Section 23 of the Code provides, in pertinent part, "The right under s.4 to treatment with respect to employment is not infringed where, . . . (d) an employer . . . withholds . . . advancement in employment to a person who is the . . . child or parent of the employer or employee." This would seem to deprive the grievor of any benefit that he might otherwise have derived from broad application of s.4(1) of the Human Rights Code. As to the issue under Article 4.3 of the collective agreement, it does not seem to have been improper in the circumstances of the present case for the Employer to treat as a bona fide qualification, within the meaning of Article -- 4.3, the absence of a potential conflict of interest. Otherwise, essentially the merit system of promotion that other panels of this Board have found to be embodied in Article 4.3 of the collective agreement, see, e.g. Re Bullen - and Ministry of Transportation and Communications, G.S.B. NO. 113/82 (Samuels), at 8, would stand in danger of being undermined by the application of irrelevant, and possibly prejudicial, considerations. Such considerations might emanate from, e.g., the natural desire of a parent to benefit his child, or perhaps the desire of a subordinate to curry favour with his or her superior by benefiting the child of the superior. . . ‘i 7. There were reasonable grounds to support the determination of the Ministry that the application of the qrievor raised a potential conflict of interest Ian the department in which the vacancies occurred, and hence his application should be rejected. The evidence indicated that even before the competition was announced, the qrievor's father displayed considerable i~nterest in the possibility of his son securing one of the positions. Mr. Haley testified that prior to the job posting, "Mr. Trendell Senior came into my office and closed the door. He stated that he had just completed a conversation with Mr. Callas regarding the posibility of. his son working in the Maintenance Department. He wasp aware there would be vacancies there. He thought his son was very well qualified. He said he mentioned this to Mr. Callas, and.asked if it were permissible for his son to work there: He said that Mr. Callas said that it probably would not be allowed and he was upset about it. He talked to me about his son's background and emphatically stated that he felt his son was well qualified for this type of work." Mr. Trendell Senior apparently continued this form of lobbying on behalf of his son after- the posting, when he became aware that his son's 'application was in jeopardy. In 'addition to these indications of an overt desire on the part of Mr. Trendell Senior to benefit his son, there 8.. .c were other valid concerns regarding the potential conflict arising out of the father-son relationship in this case. These were well put by Mr. Haley in his testimony. After noting that Mr. Trendell Senior was to Chair the Selection Committee, Mr. Haley stated, "A manager-father should not interview an employee-son. He would have more familiarity with his child than with respect to any other applicant. Also, there was the question of objectivity. A tendency to favour the son." Mr. Haley went on to describe matters from his own perspective, as a member of the Selection Committee. He said, "I would be uncomfortable as a person on a board interviewing a son or relative of the Chairman. I would hestitate to make negative observations. It would have a . . . [chilling effect] on voicing my opinions. '" Mr. Haley then addressed the question of the external image of the Mental Health Centre. He said, "What would the, community think? It is a public institution. The taxpayers are our bosses. . . . We are the largest employer [in the area]. We are definitely the preferred place to work. Our wages are more than competitive. The people in the community watch closely our staffing activity. They would know that a father hired his son." Mr. Haley then went on address the matter of the opinion of co-workers and others in the competition with the qrievor. He said, "There is also the question of the opinion Of 9. co-workers. A father interviewing his son. Son gets the job. They say the competition was rigged or fixed. They would question our credibility as a management team. . . . other people in the competition would be uneasy. They would have a 'feeling that their rights will be prejudiced; that they were not in a fair forum to analyse their qualifications." There also appeared to be some legitimate concern regarding then potential long-term effect of the conflict -should the qrievor become employed in his father's department. While the bulk of the evidence made it clear that there would not be. a direct reporting relationship between the grievor and Mr. Trendell~ Senior, it seemed equally clear that .because of the small size of the department and the fact that the immediate supervisor reported directly to MT. Trendell Senior, decisions on matters such as promotions, raises, performance appraisals, etc., well might be suspected of having been influenced by the existence of the father-son relationship., Indeed, Mr. McKerrow touched upon this problem in his letter to Mr. Oss, when he stated, "Even if the normal work functions ,are carried out - i.e., discipline, evaluations, etc., other staff would certainly be suspicious of favourtism between members of the immediate family." For all the above reason, the grievance is dismissed. The absence of a potential conflict of interest was a bona fide qualification within the meaning of Article 4.3 of the collective agreement. On the facts, there were reasonable grounds for concluding that a potential conflict of interest existed in the present case. DATED AT London, Ontario this 4th day of October, 1984.