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HomeMy WebLinkAbout1984-1509.Jeffrey.86-01-13IN THE MATTER OF AN ARBITRATION . . Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Robert Jeffrey) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer Before: R. L. Verity S. J. Dunkley E. J. Orsini Vice-Chairman Member Member For the Grievor: S. Laycock Grievance Officer Ontario Public Service Employees Union For the Employer: J. Callas Regional Personnel Administrator Ministry of Health Hearing July 29, 1985 September 26, 1985 November 14, 1985 . i $, :. ,# - 2 - DECISION In a Grievance dated January 18, 1985, Robert 3effery alleges that the Employer violated Article 4.3 of.the Collec- tive Agreement by denying him the appointment of "Senior Recre- ation and Crafts Instructor" (Classification - Instructor 3(a), Recreation and Crafts) at the Mental Health Centre at Penetan- guishene. Following a job competition, Paul Wolfer was the successful applicant. The Grievor seeksappointment to the position, the name of which has now been changed to "Co-ordinator of Recreational Services". Mr. Wolfer attended throughout the three day hearing, participated fully in the proceedings and presented evidence as part of the Employer's case. The Grievor has far greater sen- iority than Mr. Wolfer. Prior to the competition, both employ- ees held the position of “Recreationist” and were classified as Instructor 2, Recreation and Crafts. The Grievance is based on Article 4.3 which reads as follows: "In filling a vacancy, the Employer shall give primary consideration to qualifica- tions and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration." The position in question was advertised by a posting on December 13, 1984 pursuant to Article 4.1. The posting read: "MINISTRY OF HEALTH MENTAL HEALTH CENTRE, PENETANGUISHENE REQUIRES ONE SENIOR RECREATION & CRAFTS INSTRUCTOR (restricted) CLASSIFICATION: Instructor 3(a), Recreation & Crafts SALARY RANGE: $412.84 - 5442.65 per week SCHEDULE OF WORK: 4,7. The normal hours of work for employees in this schedule shall be 8 hours per day and 40 hours per week DUTIES: To plan and implement recreation programmes, under the direction of the Supervisor of Recrea- tional Services for a specific area of the Mental Health Centre, designed to meet the needs of a significant number of patients. To provide technical supervision and coordinate the activi- ties of other recreationists assigned to that area. QUALIFICATIONS: Significant knowledge and experience in recrea- tion leadership programming, with a good working knowledge of therapeutic recreation theory and techniques such as assessment, individual pro- gramme planning and programme evaluation. .Demonstrated ability to plan activities and co- ordinate the efforts of other staff. Good or- ganizational skills, initiative, tact, and well developed interpersonal and communication i.. z - 4 - skills. Must have, or be willing and able to attain within 9 months of accepting position, a class C drivers licence. Bronze cross swimming qualifications an asset. Qualified applicants may apply to: Regional Personnel Administrator, Human Resources and Personnel Development Branch, Mental Health Centre, Penetanguishene. LOK 1PO Posting Date: December 13, 1984. Closing Date: 3anuary 3, 1985. Area of Search: Hospital facility. Competition No: Hl-32-61-84" Six candidates were interviewed, all of whom were employed at the Penetanguishene Mental Health Centre. The interviews were conducted by a four person selection committee: T. W. Knight, Director Vocational, Recreational and Volunteer Services (Selection Committee Chairman); R. Anderson, Super- visor of Recreational Services, Regional Division; Ms. Roxanna Spruyt , Supervisor, Recreational Services, Oakridge Division; and M. Haley, a representative from the Regional Personnel Office. Mr. Haley was the only Selection Committee member who had no personal knowledge of the qualifications and ability Of each of the Applicants. Prior to the interviews, the Selection Committee developed a series of eight questions which were subsequently asked of each candidate. The questions were as follows: - 5 - . . "1 , 2. 3. 4. 5. 6. 7. 8. Would you please outline for us your educa- tional background, work experience and other relevant experience and skills which you believe qualify and have prepared you for this position? What is the difference between general re- creation~programmes and therapeutic recrea- tion programmes? What are the essential components and characteristics of each type of service? Recreational activity is important'to everyone, but particularly so to the psychiatric patient in hospital. Do you agree with this attitude? Why or why not? Activity is the primary tool used by recre- ationists. What type of activities do you believe you, can competently use to work effectively with our patients? If you are the successful candidate in this competition, you will be required to pro- vide leadership and technical supervision to others without having a direct reporting relationship. Have you had the opportunity to supervise staff previously? How will you approach the task? What would you do if you believed.one of your staff was mal- ingering? How have you kept abreast of current trends and practises in the recreation profession since entering the field? Do you possess a class C bus licence, or are you willing and able to attain the same within 9 months, since it is a job require- ment? Is there any other information you would like to give to the selection committee which might help us recognize you as the best person for this position?" Selection criteria (Exhibit 8) were developed which assigned marks for experience, both therapeutic recreational i - 6 - I and psychiatric experience (30 points); skill and knowledge in- cluding assessment techniques, individual program planning, program evaluation, communications skills, and activity skills (40 points); and personal suitability (40 points). Under the latter category, interpersonal skills were considered (IO points), demonstrated initiative, tact and organizational skills (10 points) ., potential (10 points), and attendance (10 points). Each Committee Member marked applicants individually, and the marks were subsequently totalled so that the maximum score obtainable was 440 points. In addition, each candidate was given thirty minutes to complete a written assignment. That assignment was ex- pressed as follows: "Using experience from your past, would you please describe a psychiatric patient's recreational strengths and weaknesses, sug- gest recreation treatment goals and propose a treatment plan. (Patient may be real or fictitious, but please do not use real names). You will have 30 minutes to com- plete this task." Selection Committee Chairman Knight contacted the Supervisor of each of the applicants, to elicit the following information: prior to the interviews, 1. Could you please comment on the candidate's interpersonal skills and ab ility to work effectively/harmoniously with other staff, patients and his/her supervisor. 2. Is the candidate enthusiastic about his/her job and does he/she show initiative in his/her programme area? - 7 - 3. Does the candidate use tact in his/her dealings with others? 4. Is the candidate well organized on the job? 5. Does the candidate have and exhibit leader- ship qualities on the job?" . . As a result of the above procedures, Mr. Wolfer attained an accumulated mark of 330 points. He was the first choice of each of the four Selection Committee Members. The Grievor received 291 points and placed third in the overall competition. Two other applicants (second and fourth place) received 292 and 289 respectively. The Selection Panel did not consider seniority because it was felt that Mr. Wolfer was the superior candidate. The purpose of the position of Co-ordinator of Recre- ational Services, as it is now known, is described in the rele- vant Position Specification and Class Allocation Form (Exhibit 4) as follows: t "To plan and implement recreatfon pro- grammes, under the direction of the Super- visor of Recreational Services for a speci- fic area of the Mental Health Centre, de- signed to meet the needs of a significant number of patients. To provide technical supervision and coordinate the activities of other recreationists assigned to that area." - 8 - The posting was prepared to reflect the duties and responsibilities as set out in the job specification form. In written argument, the Union contended that the Griever was the superior candidate and should have been selec- . . ted for the appointment. Alternatively, Ms. Laycock argued that the Griever was “at least relatively equal to the success- ful incumbent" and accordingly seniority should have been a factor. It was argued that the selection procedure was so flawed that the competition must be declared invalid and set aside. In addition, Ms. Laycock submitted that the Employer failed to establish that Mr. Wolfer possessed the necessary qualifications for the position. For the Employer, Mr. Callas argued that the selec- tion procedure had been fair and that the incumbent was selec- ted upon appropriate criteria, without bias and in good faith and that the decision was reasonable. The Griever's seniority dates back to May 17, 1976 whereas Mr. Wolfer obtained his first permanent position at the Mental Health Centre in June of 1979. Article 4.3 requires the Employer to take seniority into account only where the qualifi- cations and ability of the candidates to perform the necessary duties are relatively equal. In a competition Grievance, the - 9 - onus of proof rests upon the Griever to satisfy the Board that his qualifications and ability are relatively equal to those of the successful applicant. See Re Remark and Ministry of Reve- nue, 149/77 (Swinton); Re Quinn and Ministry of Transportation and Communications, 9/78 (Prichard); and Re Nicholas and Minis- tr.y of Health, 55S/Sl (Draper). Having considered the evidence carefully, the Board is not persuaded by the Union's argument. The Board is satis- fied that the evidence does not support the Union's contention that Mr. Wolfer lacks the necessary qualifications for the job. In fact, the evidence is to the contrary. Mr. Wolfer has been employed at the Penetanguishene Mental Health Centre since Llune, 1979, during which time he has acquired experience in both therapeutic and general recreational areas. Prior to that time, Mr. Wolfer worked five terms (almost two years) on a co- op student placement at the Penetanguishene Centre during his undergraduate degree work at the University of Waterloo. His first co-op placement was a four month assignment as a Recrea- tional Officer at the Monteith Correctional Centre. In 1979, Mr. Wolfer graduated with an honours degree in Kinesiology. In addition, Mr. Wolfer served for a two month period in 1984 in the acting position of Supervisor of Recreational Services, Oakridge Division, during the absence of Ms. Spru t. i i ;- . - 10 - There is no doubt that the Griever is also qualified for the position. Mr. Jeffery has worked at the Penetangui- shene Centre since May, 1976 and has acquired a wealth of ex- perience in therapeutic and general recreational activities. In short, both the Griever and Mr. Wolfer are eminently quali- fi_qd for the position in question. and discrim vant and re candidates. In a competition Grievance, the Board must be satis- fied that the selection procedure was fair and free from bias ination to enable a proper comparison of the rele- lative qualifications and abilities of each of the In the instant Grievance, the Board is satisfied that the selection procedures were reasonable. The Board finds that the candidates were evaluated on relevant criteria, that no irrelevant factors were considered, that candidate's supervisors provided evaluations, and that there was no evidence of discrimination against the Griever. Each of the candidates were supervised by either Selectiorl Committee member Anderson or Spruyt . It cannot be said that the selection decision was made exclusively on the basis of the interviews. Ms. Spruyt supervised both the Griever and Mr. Wolfer. She was somewhat critical of the Griever (Exhibit 6) by describing his relationship with patients and peers as "average". In addition, she made the following general com- ments about the Griever: "not very enthusiastic about his ( i $ ', - 11 - job", "does the minimum to get by", "does not demonstrate ini- tiative", and "not well organized”. She was less critical of Mr. Wolfer, but did state that he had "problems working with people because he is extremely moody". However, she did state that the Grievor "is often the first to support change". R. Anderson had also supervised both the Griever and Mr. Wolfer. In his opinion (Exhibit 6), the Griever had a good rapport with patients and staff (as of 19831, but observed that "attendance not good" (also 1983). Mr. Anderson commented that Paul Wolfer "at times seems negative and unreceptive but turns around and does a good job - excellent attendance record". (Exhibit 17) Selection Committee Cha i rman Knight testified that he awarded the Grievor 71 points in total as against 76 for Paul Wolfer. Mr. Knight gave the Grievor 29 marks for experience as 6. against 23 for Mr. Wolfer. The Grievor fell behind the suc- cessful applicant in the areas of "demonstrated initiative, task and organizational skills” and in "attendance". In other areas, the Griever received similar, if not identical marks, to lace in the Mr. Wolfer. Mr. Knight awarded the Grievor fourth p competition. No selection procedure can emerge unscathed under scrutiny. The evidence established that Mr. Knight reviewed the personnel files of each applicant; however, Mr. Spruyt. . c 2, - 12- testified that she did not review the Griever’s performance appraisals and presumably did not review his personnel files. Various panels of the Grievance Settlement Board have stated that all members of a Selection Panel should review personnel records. Under attendance, Mr. Knight gave the successful incumbent a mark of 10. In our opinion, having reviewed Exhibit 59, it would appear that a mark of 8 might have been more appropriate. At the Hearing, Mr. Knight acknowledged that he made a mathematical error in calculating the Griever’s total score, and in so doing awarded the Griever 70 points instead of 71. However, the Board does not regard the defects referred to above as fatal, and the Board is generally satis- fied that the selection procedure was conducted fairly. In our opinion, Paul Wolfer was the superior candidate and accordingly seniority would not have been a consideration. On the evidence presented, this is not the appropriate case for the Board to c interfere with the Selection Committee’s findings. There is no doubt that attendance is an appropriate component of selection criteria. The evidence established that attendance has been a continuing problem at the Mental Health Centre at Penetanguishene. Between the years 1982 to 1984 inclusive, the Griever was absent an average of 9.3 days as compared to Wolfer’s absenteeism of 2.8 days. Vice-Chairman , 7 i; . 2; - 13 - . , Draper considered that issue in OLBEU (A. Glysinskie) and Liquor Cc~ntrol Eoard of Ontario, 42/81 and 107/81. At pages 7 and 8 of that Decision, the following comments were made: “On the issue of attendance, two cases cited by Counsel to the Employer are in point: Re ITT Communications Division of ITT Canada Ltd. & IBEW Local 2038, 4 L.A.C. (2d) 420; and tte l4anitoba Telephone System IBEW Local 2363, 10 L.A.C. (2d) 26. In the first case the Griever was otherwise qualified for a new position but was denied appointment to it because of a poor atten- dance record, the major reason for which was ill health. The Board of Arbitration found that the Employer was entitled to consider attendance in assessing the Griever’s qualifications and declined to disturb the Employer’s decision. In the second case, the Griever was passed over for promotion because of a record of blame- worthy absences. The grievance was dis- missed, the Board of Arbitration endorsing the view that an Employer has the right to consider attendance when determining an employee’s qualifications, subject to its being exercised in a just and reasonable manner. We understand these cases to sup- port the proposition that attendance is one of the qualifications that employers may properly take into account in selecting employees for vacant positions and that the reason for a poor attendance record, that is, whether absences from work are blame- less or blameworthy, is not pertinent. This is presumably so because the over- riding consideration is whether or not the responsibilities of the position to be filled are likely to be. performed in a man- ner reasonably to be expected by the Employer .” In the instant Grievance, less than 10% of the selec- tion criteria focused on attendance. There was no evidence that the Griever’s absenteeism was blameworthy. Were it not for the attendance component of the selection criteria, it is 4 *;; . - 1‘4- likely that the Griever would have been relatively equal to the successful incumbent and thus seniority would have become a factor. However, had seniority been considered, one of the applicants, Mr. Dubbin, who had greater seniority than the Griever, may well have been the successful candidate. .-. On the evidence presented, we are unable to find that the Employer violated the provisions of Article 4.3, as al- leged. The Board is satisfied that the Griever is a compe- tent Employee who has acquired considerable experience in crafts and other recreational and therapeutic activities. NO doubt, he has gained certain experience during his tenure as a Midland Alderman. In addition, his musical talent is an asset which many fellow employees may not possess. The Griever would be well advised to provide an up- , to-date resume of his experience when applying for a future job vacancy. It is simply insufficient to apply for a position and expect an appointment on the strength of a one sentence let- ter. In the instant Grievance, the Griever's application is pale by comparison to the detailed and organized application submitted by Mr. Wolfer. - 15- In the result, this Grievance must be dismissed. DATED at Brantford, Ontario, this 13th day of January, A.D., 1986. R. L. VERITY -- VICE-CHAIRMAN - E. 3. ORSINI F