HomeMy WebLinkAbout1984-0514.Walker.85-02-19IN THE MATTER OF'AN RRUlTRATlON
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAIN1
Before
Between:
Before: --
THE GRIEVANCE SETTLEMENT BOARD
OPSEU (Barbara Walker)
- and -
The Crown in Right of Ont
(Ministry of Transportati
Communications)
NC ACT
Grievor
ario
on and
Employer.
R. 1. Verity, Q.C. Vice Chairman
I. Freedman Member
G. 6. Walker Member
For the Griex: J. Allan Millard __- Barrister and Solicitor
For the Employer: P. W. Codner ---._ Staff Relatibns Officer
Hearing:
Personnel Service5 Section
Human Resources Plannin~g and Services
Branch
Ministry of Transportation and.
Communications
January 10, 19115
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DECISION
4
This grievance arises from the failure of Mrs.
Barbara Walker to receive appointment to the position of
"Inspection Station Supervisor, Fruitland". A vacancy .in that
position gave rise to a Ministry central region competition
which was posted in late February 1984. Presently, Fruitland
truck inspection station is a two person operation consisting
of a Supervisor and one other employe,e, a Highway Carrier
Inspector 2.
Douglas Ryerson won the competition and thereby
secured the appointment. Mr. Ryerson was present throughout
the Hearing but was not called upon to testify. Although given
every opportunity to do so, Mr: Ryerson chose neither to pre-
sent evidence nor to question witnesses.
sen i
The
Of the two employees, the Griever has the greater
ority, with-seniority dating back to November 14, 1974.
incumbent's seniority date is 3anuary 19, 1981.
,-
When filling a vacancy under Article 4.3 of the
Collective Agreement, seniority is not a consideration unless
the primary consideration of qualifications and ability are
deemed to be relatively equal. The Article in question reads
as follows:
,
I
“4.3 In filling a vacancy, the Employer
. shall give primary consideration to quali-
fications and ability to perform the re-
quired duties. Where qualifications and
ability are relatively equal, length of
continuous service shall be a considera-
tion.
The relevant posting contained the following infor-
.mation:
“THE 308
To regu.late and control the safe and legal
operation .of commercial vehicles of the
Highway Carrier Industry by:
-supervising and training staff at a per-
manent truck inspection station
,-conducting investigations into alleged
violAtions and complaints
-preparing detailed reports and appearing
in court as a witness on behalf of the
Crown
-occasionally patrolling a designa,ted. area
and ensuring that the Highway Carrier
Industry is complying with the pubtic
Commercial Vehicles Act, Public Vehicle
Act, Highway Traffic Act, Motor~VehicLe
Transport Act (Canada), and their regula-
tions.
THE CANDIDATE:
Must Have
I. Successfully completed Highway Carrier
on-the-job schedule’or equivaient
experience and training.
2. Successfully completed Highway Carrier
orientation course at Ontario Police
College.
3. Previous experience as a Highway
Carrier Inspector.
4. Sound working knowledge of the
policies, procedures, acts and
regulations governing the Highway.’
Carrier Indus’try.
5. Valid Driver’s Licence ,and be in good
physical condition.
Should have
A. Good communicative skills and the
ability to deal tactfully, courteously
and effectively,with the public.
0. Supervisory experience.
C. The ability t.6 work+ and eiercise
judgement with only minimum super-
vision'.
D. Good analytical and,organizational
skills."
’
The purpose of the position is described in the Posi-
tion Specification and ,Class,Allocation Form as follows:
’ "To supervise the Station Staff in the
regulating of commercial vehicles~ on the
highway and to protect the public and high-
way roadbed through the enforcement of
'legislation pertaining to the Highway
Carrier Industry.”
The Job Specification summarizes the duties and re-
sponsibilities of the positio,n in the following terminology.
“1 . 35% Supervises the Highway Carrier
Inspection Station Staff in the performance
of their enforcement duties by:
(a) Scheduling the operation of the sta-
tion to achieve maximum coverage of the
operations over the highway by the ~industry
on a monthly basis. (i.e. late shift,.
early shift, midnight shifts over the seven
days of the week) in conjunction with other
Supervisors.
(b) Assigning officers to duties to carry
out an effective inspection programme;
(i.e. traffic direction, weighing, visual
inspection);
(c) Instrudting staff on Legiglation (new
and existing) and its intricacies of
a’pplfcation explaining through working
examples off vehicles coming through the
station;
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(d) Explaining polici~es used to cover a
variety of situations and the reasons for
their applications;
(e) Reviewing Highway Carrier inspection
procedures with staff on a constant basis
to ensure efficiency;
(f) Reviewing performance of new staff and
recommending areas of improvement, Submit-
ting written appraisals of performance;
(g) Reprimanding staff on inadequate~ per-
formance, documenting and referring se’rious
discipline problems to District Inspector;
(h) Instructing the D~fficers in co.urt pro-
cedure and the ~giving of evidence and eval-
uating his performance;
(i) Auditing and reviewing work submitted
by staff (e.g. reports, surveys, memoran-
dums), to ens:ure conformity.
z
2: Resolves unusual, complex or difficult.
station si,tuations referred from staff by:
(a) Checking documents submitted, checking
.load for evidence, analysing details to
assist in making a decision; reviewing all
information collected and comparing with
the operating licence, deciding whether the
operation is within the terms of operating
licence or in violation;
(b) checking serial numbers obtained from
15% vehicles and comparing against registra-
tions submitted by driver and if a~ discrep-
ancy, phoning vehicle licensing for filed~
details relating to vehicles. Determining
if there is~a confirmed switched plate
violation and removing the plates;
(cl Determining after a vehicle is found
to be overloaded, whether policy dictates
removal of excess load, shifting of load,
or allowing loaded vehicle to proceed; ,.
(d) Detaining unsafe vehicle and having
unsafe conditions corrected or 'on the in-
structions of the police authority or man-
agement having plates removed.
3. Participates in the operation of the
Inspection Station by:
(a) Checking documents, bills of lading,
registrations, load;
(b) Dete,rmining if U.S.A. .registered
vehicles qualify for a fives day permit by
I
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30% checking documents received from driver,
completing application; collecting fee and
issuing five day permits.
4. 1,nitiates preliminary investigation of
suspected violation by:
(a) Directing the staff in collecting and
recording the information available from
'driver, loads and documents;
(b) Auditing reports and advising’staff on
10% how to obtain other pertinentinformdtion;
(c)' Filing a report of inspection indi-
cating a promising course of action to
District Inspector;
(d) Directing the e.xamination of the
driver and filling in the answers on the
applicable lease investigation form;
(e) Questioning the driver to obtain fur-
ther informationpertinentto the -suspected
violation. (This may lay the ground.work
for a successful investigation.)
5. Commences court action of.alleged.violation
by:
(a) Auditing t'he documents and reports of
inspection authorized for prosecution;
(b) Reviewing reports with Court Officer
and defining possible problemsof prosecut-
ing (e.g. one information for two persons
on joint charge, two~summonses);
(c) Completing requests for summons;
10% (d) Maintaining court file on charges laid
before the Court and ensuring the presence
.of the Officers at the Court on the correct
date;
(e) Giving evidence in Court;
(f) Finalizing reports of inspection be-
fore submitting tom District Office.
6. Performs other related duties by:
(a) Determining course of. action in emer-.
gency situations (e.g. collisions, vehicle
fires, injuries);
(b) Requisitioning supplies and materials
for the efficient operation of the
Inspection Station;
5% Cc) Relieving district personnel as re-
quired;
(d) Maintaining an excellent working rela-
tionship with other enforcement bodies by
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cooperation and communication of mutual
areas of concern;
(e) Answering enquiries from public,
police, drivers and owners of.highway
carrier vehicles.;
(f) Preparing and auditing various reports
for submissions to the District Office
(e.g. reports,, surveys, memorandums);
(g) Maintaining the safe operation and
security of the Inspection Station;
(h) Ensuring that all Act and Regula-
tions, bulletins; books are catalogued and
up to date for quick positive reference;
(i) As assigned.”
There were, seven applicants for the position. Five
applicants, including the grievor, were deemed qualified, and.
accordingly each of the five qualified applicants received a
l/2 hour interview on. April. 19.
Burlington District Personnel Officer Len Malloy,
testified th’at he served on the three person selection commit-
tee together with District Inspector Garth Bassett and District
Manager Paul Wake. Evidence established that each member of
the selection committee reviewed candidate personnel files
sometime prior to the interviews,and that Supervisor reports
, were als’o considered.
Mr. Malloy testified that the successfu~l applicant
was required “to have sufficient technical knowledge,,to perform
the job” in addition to supervisory abilities., The questions
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,were prepared by Mr. Bassett and reviewed for refinement by
other selection panel members prior to the interview.s. Ques-
tions were divided into two basic categories - one to test of
technical, knowledge, and the other to focus on leadership or
supervisory qualities.
Seven technical questions'were posed to each candi-
date:
"1 . Define ‘Principal Place of Residence’
as’ it relates to reciprocal agreements with
some states of the U.S.A. and sections 7
and 10 of .the H.T.A.
2. Define a two axle group.
3. What is the period of limitation to
swear to an information under Part.3 of the
P.O.A. after the date of the offence?
4. Explain what a Class 'L' operating
licence authorizes the holder to do.
5. The PCV Act authorizes the holder of an
operating iicence to transport fertilizer
in bulk to and from any point in Ontario.
(a) Would this include the holders of a
class 'X' or 'Y' operating licence?
(b) During what months of the year would
this apply?
(c) What type of vehicle may'be used?
6. What is the tolerance allowed, by
policy, on a triple axle unit before off
loading is required?
7. By policy, O/O permits are not to be
issued to carriers for State to State moves
using Ontario as a corridor. What is the
e?ception to this policy?
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Mr. Malloy’s evidence was to.the effect that he had
been advised by Messrs. Bassett and Wake that ail seven techn-
ical questions were “common occurrence questions”. Five ques-
tions were asked under the Leadership component as follows:
“1 . How would you motivate a member of
your staff ,when it is, apparent excessive
time is spent completing a C.V.R.?
2. Within the terms of the Collective
Agreement with respect to Working Condi-
tions, how m~any days in advance must a
shift schedule be posted?
3. Explain how you would instruct a new
officer to physically inspect a C.M.V.?
4. What guidance would you give a subordi-.
nate that continually disagrees with
Ministry operational policy?
5. What methods or procedure would YOU
implement to maintain yours staff’s know-
ledge of Ministry objectives and legisla-
tive changes as it applies to the Highway
Carrier function?”
The weighting factor given to the technical questiqns
was IO, and to the supervisory questions 8. Each question was
rated on a scale of 0 to 5 points. For example, an excellent
answer achieved. 5 points, a.good answer 4 points, a fair answer
2 points, and a poor answer 1 point. If a candidate failed to
answer the question, or answered the question imcorrectly, the
mark recorded would he 0. The marks in each section were
totalled and then multiplied by the weighting factor.
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The predetermined formula for testing o.f applicants
was that the interview accounted for 60% of the'total mdrks
with 20% for the employee's personnel file and an additional
20% for the superviso~r's report.
Mr. Malloy testified that Mr. Ryerson achieved the
highest result of the five applicarrts in the interview teiting
with a total mark of 410 points 'while the grievor achieved the
lowest rating with a mark of 78 points. The second p.lace can-
.:
didate receive,d a total interview mark of 2lO~points. The
selection board assigned~ no formal mark to zany candidate for
personnel records o'r supervisor's comments.
Marking of individual results took place after all
interviews were completed. The selection committee marked each
candidate collectiv'ely and by consensus. No marks were.reA
corded by individual selection committee members. However,
each panel member did record the answers of each candidate to
individual questions,
In his testimony, Mr. Malloy stated that both 'the
Griever and the incumbent submit~ted "good app 1 ication forms"
and were considered good employees and that both were relative-
ly equal in terms of personnel records and supervisor’s re-
ports. The position was awarded to Mr. Ryerson on the.basis of
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his overall mark during the interview. The seniority of appli- - :
cants was not considered by the selection panel.
The Griever testified that she has ,served as a High-
way Carrier Inspector since 1978, and had both the qualifica-
tions and the ability to perform the job. Her evidence was to
the effect that in 1981 she served for a period of some two
months in the capacity~of acting Supervisor at Fruitland during
the absence of her Supervisor. In addition, she manned the two
personstation alone~during p.eriods when her Supervisor was ..
absent by reason of illness or vacation.
The Grievor acknowledged that she answered severa
technical questions incorrectly.during the interview. She
alleged that in her opinion some of the technical.questions‘
were unfair in the sense that they.were not.based on everyday
occurrences. However, she’ was satisfied with her answers in
the series of supervisory questions.
On behalf of the Union, Mr. Millard argued that as
the griever and the incumbent were deemed to be relatively
equal ‘in terms of personnel files and supervisor’s comments,
that the decision was made solely and improperly on the basis
of the interview. The thrust of the Union’s argument was
the selection procedure was so flawed that the result coul
that
d not
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be sustained. By way of remedy, Union Counsel advocated award-
ing the position to the Griever pr alternatively directing
that a fresh competition be held.
The Employer contended that the,Grievor had not dis-
charged the onus of proof’of relative equality between the
d
grievor and.the incumbent in terms of qualifications and abil-
ity. Mr. Codner argued that the selection. procedure’s, although
perhaps not flawless, were reasonable and that disparity in
test, results justified the selection of Mr. RyersoA. Mr.
Codner alleged that there was no evidence that the selection
committee proceeded arbitrarily, discriminatorily or in bad
faith. Numerous arbitral precedents were submitted by both
parties.
On the evidence, the Board accepts the fact that the
grievor was basically qualified f,or the position. Had she not
been so qualified, she would not have advanced to the interview
stage. The griever was described as a, good employee by person-
nel officer Malloy. In addition, the griever’s former super- .*
visor, E. G. Tomlinson, in a Performance Appraisal dated
October 28, 1982, gave the griever an “excellent” rating and
made the recommendation that she was capable of a supervis’ory
post.
;
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However, for the’g’rievor to succeed in this matter,
she must distiharge’the onus of establishing that she was rel-
atively equal in terms of qualifications and ability to Mr.
Ryerson.’ Alternatively, the Griever would succeed if the evi-
dence established~ the selection procedure was so flawed that
the d,ecision could not be sustained. Of course, the griever
would also succeed if the evidence established that her quali-
fications and abilities were superior ,to those of the incum-
bent.
Having reviewed the evidence carefully, the Board is
unable to finds that the griever’s qualifications.and,ability
for the job were relatively equal to those of Mr. Ryerson. For
whatever the reason Mr. Ryerson was not called upon to’present
evidence. This Board’s knowledge of Mr. Ryerson is limited to \
the interview results And the evidence of Mr. H’alloy. H.owever,
we do know that the griever was deemed to be relatively equal
to the incumbent in terms.of personnel records and supervisory
reports.
Hoth applicants had limited supervisory experience.
Mr. llyerson had performed supervisory resppnsibi~lities “on sev-
erdl occasions” at the Oakvillc station which is a ‘larger oper-
,I t ion t h a n the 1-r II I t 1 .1 n d s t a t i o n . As referred to preyious.ly,
I: I\ e q r i e v 0 r w a 5 a p I, 0 i n t cd d c t i II g s I! p e r v i s 0 r at t h c I- r u i t : and
sl.,~thr~ tn. 19Al for d Lwo month period.
.
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However, the incumbent performed well during the
interview process. Quite simply, the same cannot be said for
the griever. For whatever the reason, the griever achieved a
, "poor" rating in the answers to three technical questions and
failed to answer or answered incorrectly four other questions.
Tn the questioning r.elated to leadership criteria, the grievers
re~sults were generally fair to poor. Mr. Ryerson achieved an
excellent rating in the answers to five questions and a good
rating in the answers to four questions. The incumbent placed
first in the test results while the griever placed last. In
addition, the.incumbent was the unanimous choice of the selec-
tion committee. On that evidence it is difficult to find that
the grievor was relatively equal within the meaning of Article
4.3.
Turning to the procedures followed by the selection
committee, the job in question is technically orientated, and
therefore interview questions were hesigned by the selection
committee to elicit the extent of technical knowledge.
Detailed knowledge of relevant legislation and regulations pur-
suant to the Highway Traffic Act, the Public Commercial
Vehicles Act, the Public Vehicles Act and the Motor Vehicle
Transportat ion Act, are essential requirements for the job.
'The seven technical questions were indeed relevant to the job
and cannot be characterized as trick questions. Admittedly,
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some of those questions were difficult as Is evidenced by the
fact that no applicant was able to' answer the final technical
question. Similarly, the Board f'ind,s that the five questions
posed under the leadership~or supervisory component were also
reasonably job related.
While it remains a truism that no selection procedure
can emerge unscathed under scrutiny, the Board has some con-
cerns with the procedure followed'in the instant matter. It is
regrettable that the'selection panel did not review candidate
personnel files immediateLy prior to each interview.
Vice-Chairman 3olliffe commented on that matter in Ellsworth,
et al and Ministry of Community and Social Services, 361180 at
page 24:
"Abetter approach would have been to pre-
pare a file on each candidate, including
the application and attached history, all
available performance appraisals and
letters of reference, if any, and to study
the file carefully. before each interview.
The 'track record' of a candidate, good,
bad or indifferent, may well be more signi-
ficant than the impression made by the can-~
didate.at a brief interview."
In the instant grievance, it is unlikely that a re-
view of personnel records in the manner described by
Vice-Chairman SolLiffe would have changed the end result.
However, such a procedure would have enforced the concept OF
greater objectivity.
Similarly, it .is regrettable that each selection
panel member did not assign individual marks to a candidate
following an interview with comparison of results by panel
members at the conclusion of the final interview. Marking by
consensus at the conclusion of the final interview tends to
reinforce the charge'of subjectivity. Had the inte~rview test
results beenclose as between the two candidates, it is debat-
able that marking by consensus would have been deemed an
acceptable procedure.
Similarly,~it is preferrable to complete all aspects
of assigning marks in accordance with the pre-determined
testing criteria. Here, no marks were assigned to any candi-
date for personnel files or ~s,upervisor's comments.
Admittedly, there'were defects in this competition;
however, in the circumstances, the Board is satisfied that the
selection panel made reasonable efforts to assess fairly the
relative merits of each appl,icant. Tn summary, the Board does
not find that the competition was improperly conducted and we
do f,ind that the end result was correct.
One further matter merits comment. At the conclusion
of the Hearing, IJnion Counsel Millard advised the Hoard that he
had been unahle to secure relevant documentation from the
Ministry prior to the Hearing. Tt is not difficult to under-
stand the frustration faced by Union Counsel when the onus is
on the griever to establish a prima facie case of relative
equality when only the Employer possesses the relevant informa-
tion. Tn competition grievances, there is no valid reason to
withhold information from the yrievor. Where there is failure
to disclose relevant information, ‘the griever may conclude that
the,process is both tainted and inherently unfair. In the
instant grievance, had the Ministry been more forthcoming and
had produced the requested documentation, this matter may well
have been settled without resort to arbitration.
Tn the result, this grievance is dismissed.
DATED at Brantford, Ontario, this 19th day of
February A.D., 1985.
‘Vice-Chairman
_--.----I_
C. fJ. Walkrr - Member