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HomeMy WebLinkAbout1985-0895.Cooke.87-11-06Between: 0895185 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Steven Cooke) and The Crown in Right of Ontario (Ministry of Community and Social Services) Employer Before: For the Griever: For the Employer: Hearing: Vice Chairman Member Member R. L. Kennedy J. D. McManus L. D. Foreman J. A. Ryder, Q.C. COU”Sel Gowling & Henderson Barristers and Solicitors D. Coste” Counsel Legal Services Branch Ministry of Community & Social SerViCeS August 26, 1987 -2 - AWARD In a grievance filed August 6, 1985 the Grievor alleges that he was improperly denied the posted position of a Behavioural Counsellor and claims appointment to the job forthwith with pay and benefits retroactive to July 19, 1985, the date the job was awarded to another employee. The Union claim as asserted on the hearing, however, sought to set aside the competition leading to the appointment to the job on the ground that the competition was unfair and invalid, and the relief sought was that the matter be referred back and that the competition be rerun. The successful candidate for the job received notification of the hearing and was in attendance and participated in providing evidence and making comment to the Board. The job in question was that of a Behavioural Counsellor and was posted pursuant to the provisions of the Collective Agreement on June 10, 1985. The job was classified as a Child Care Worker 3 (Atypical) and was related to the Home Behaviour Training Programme of the Children's Psychiatric Research Institute in London, Ontario. The job involved working principally with parents of children with~developmental handicaps and required the incumbent to work with these parents principal!? in their homes to assist the parents in dealing more effective!.: with the problems of their children. Prior to May of 1985, there - 3 - were two incumbents in the position of Behavioural Counsellor working in the Home Behaviour Training Programme who were part of the classified Civil Service. In addition, since approximately September of 1984 there had been a contract position of Behavioural Counsellor, and the incumbent in that contract position was ultimately the successful candidate on the job posting in question. In May the programme received approval to establish an additional permanent position, and accordingly, the job posting for that permanent position took place in June of 1985. At the time the contract position was created in September of 1984, it was totally uncertain whether a permanent position would be ultimately created, and no assurances were given by,the Employer with respect to that contract position that it would in any way lead to a permanent position. Since May of 1979 the Grievor has been employed at the Children‘s Psychiatric Research Institute as a Child Care Worker 2. In that capacity he has worked as a Counsellor with in-patient adolescents who are mentally retarded or who have behavioural or emotional problems. In addition to working with the children, he has on an ongoing basis some contact in reporting to parents and counselling them, although in cross- examination he acknowledged that at the time of the grievance his involvement with parents was minimal. His contact would appear to be mainly as a conduit of information to the parents. The -4- Griever's performance appraisals have been consistently very favourable. The Grievor was one of 11 applicants for the position, and ultimately nine of those applicants were interviewed and evaluated. The interviews and evaluations were carried out by Dr. Jack Albin, the Chief Psychologist in charge of the Home Behaviour Training Programme, and Dan Heard, the Personnel Director of the Institute. A series of questions was developed to put to all applicants in a personal interview, and each of Albin and Heard made written notes with respect to each applicant outlining the responses to the questions and the evaluation and weighting assigned to the various questions. In view of the nature of the Union objection to the process, it is not necessary to review in detail the evidence which we received as to the nature of the questions and answers and the methods of evaluation applied by the evaluators. Suffice it to say that the questions were indeed accurate and relevant measures of an applicant's qualification and ability to perform the required duties of the job, and that such questions were fairly put to each of the candidates in equivalent circumstances.. It is equally clear on the evidence, and it is this aspect that is stressed by the Union, that in evaluating the answers of the candidates, both of the evaluators recognized the experience, qualifications and ability of the candidate, Jackie White, which she had gained by -5- virtue of being the incumbent in the contract position of Behavioural Counsellor during the period from September of 1984 until the time of the job posting. In framing the questions that were to be used on the competition, there was no attempt to design questions or to evaluate answers in a manner that would eliminate the effect of the experience gained by Miss White during the period of her incumbency in the contract position. The questions and the evaluations were designed to select the best candidate including full recognition of Miss White's experience. In conducting the interviews and completing the evaluations Dr. Albin and Mr. Heard did not compare notes or discuss their respective evaluations until the process was completed for all candidates. Each of them rated Jackie White as the best candidate, and each of them placed the Grievor in third position. They each placed a different individual in second position. They were also aware of the candidates' past performance appraisals, and the candidates' supervisors were consulted. Before dealing specifically with the main issue asserted by the Union, there is one other aspect of the evidence that requires comment. The Grievor testified with respect to certain discussions he had had with.Dr. Albin during the two or three years prior to the grievance from which the Grievor had concluded -6- that Dr. Albin was predisposed to appointing only women to the positions of Behavioural Counsellor in his programme. There can be no question that some discussions did take place between the two and that the Grievor definitely expressed an interest in getting involved in Dr. Albin's programme. However, their recollections of those discussions differ to some extent, and having heard both of them, it would be the Board's conclusion that Dr. Albin's testimony more accurately reflects the totality of the general tenure of the discussions between them and is more consistent with the balance of probabilities in all the circumstances. The two are well acquainted and indeed it would appear frequently jog together. The Grievor commented to Dr.'. Albin that there were a lot of women in the programme and asked when Dr. Albin was going to hire a guy like the Grievor into the programme, and the Grievor stressed to Dr. Albin the fact that the Grievor was a good father, and he felt this to be an important qualification in equipping him to deal with the parents of disturbed children. Dr. Albin responded that there were a number of other issues to be considered in dealing with the appropriateness of a candidate to be selected to the position and that there would be some potential difficulties for a male counsellor of which the Grievor should be aware. The Grievor did enquire as to what would be his chances of getting into the programme and what he should do to improve his qualifications, and Dr. Albin made two specific suggestions. He advised the -7- Grievor to talk to the Unit Psychologist to see if the Grievor could increase his role in making home visits. Secondly, Dr. Albin suggested the Grievor talk to the present incumbents in then job to find out more about the nature of the programme and the work involved. There was no evidence that the Grievor followed those suggestions. We would conclude from the evidence that Dr. Albin did nothing to discourage the Grievor from applying for a position and simply did his best to outline all the considerations which the Grievor should keep in mind. We would conclude that there is no support for an argument that the Grievor was in any way prejudiced in the competition or discriminated against because of his sex. Article 4 of the Collective Agreement deals with the posting and filling of vacancies or new positions. Article 4.3 provides as follows: In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. It was argued by the Union that a competition under Article 4 must be fair to be valid. Therefore, the result cannot be predetermined, and any such predetermined result is invalid even in the absence of bad faith. The basis for the argument that the i, -8- competition was unfair and invalid rested on three grounds. First, the questions and the interview process stressed the on- the-job experience gained by Jackie White during her period of incumbency in the contract position. Second, Dr. Albin agreed that Jackie White was a better candidate because of the experience she.had had. This was unfair to the Grievor who could have benefitted from the same experience. Third, no attempt was made in the questioning to neutralize the advantage that Miss White had gained, and therefore that experience had a substantial impact on the outcome. Reference was made to the decision of this Board in Timleck 1444/84 (R. J. Delisle November 7, 1986.) In summary, the Union's position was that the unfairness alleged with respect to the competition was in the granting of the experience to the successful candidate and the failure to neutralize that experience in the competition. It was argued that the Employer must design the questions and the evaluation procedure to eliminate the advantage that the Employer has conferred on the incumbent in the position. The simple issue to be decided on this arbitration is whether or not in evaluating these candidates the Employer was entitled to take into account the qualifications and ability of the candidate Jackie White attributable to the time she had spent as an incumbent in the position as a contract employee. It is our decision that the consideration of such qualification and -9- ability by the Employer in no way contravenes the Collective Agreement between the parties. Article 4 requires the Employer to consider the qualifications and ability of all candidates to perform the required duties and places no constraints as to the basis upon which any particular candidate acquires such qualification and ability. It is not challenged that Miss White was a legitimate applicant for the position, and she is entitled to have her qualifications and ability evaluated as they may exist from whatever source. We would agree with counsel for the Union that the competition held pursuant to Article 4 must be fair to be valid. However, such fairness cannot justify the rejection of particular qualifications or abilities of particular applicants unless the Collective Agreement so provides, or unless the Employer is in some way acting in bad faith or in contravention of the Collective Agreement in conferring some particular benefit or advantage on a candidate. Each candidate brings to the competition his or her own particular combination of native skill, education and work experience, and is entitled to have all of those aspects considered in the job competition. Only a contractual provision or a situation where the Employer has improperly conferred a benefit on a particular candidate can justify or require the selection committee from excluding some aspect of a candidate's qualifications and ability. For example, it is usual, in decisions of this Board where job competitions are referred back to the Employer to be reconsidered, to direct - 10 - the Employer not to consider the experience gained by the successful candidate as a result of the improperly run competition. Similarly, in Timleck, the decision of this Board relied upon by counsel for the Union, it is stated at p. 4 that the grievor had been disadvantaged by her lack of knowledge and experience in the job. However, it would appear from the decision that the conduct of the Employer that was improper was the original placing of people in the job two years prior to that grievance, and it was, therefore, too late to challenge the action. However, it is implicit in the decision that whatever unfairness existed to the grievor was relevant because it arose out of an improper action on the part of the Employer. In the case before us, however, no challenge is offered to the propriety of the creation of the contract position and the placing of Miss White in that position. Miss White, therefore; acquired her qualifications and ability from performing the job in fully legitimate circumstances wherein the Employer has in no sense contravened the Collective Agreement. Union counsel agreed with the Board when we suggested that had a candidate gained the experience by working in the job at some time in the past, and then'left the position for some other job, that earlier experience would properly be considered by the selection board. We see no difference in substance between that situation and the situation here where Miss White gained her experience from an appropriate and legitimate appointment to the job as a contract - 11 - position. It was argued by Union counsel that the situation was not equivalent to an earlier period of time in the same job when it was a contract position that ultimately developed into the permanent job. His reasoning was that if that were permitted, it would enable management to substantially avoid the job competition and the rights created in Article 4 simply by creating contract positions and appointing people to them and then making them permanent positions and having a spurious competition in which the incumbent could succeed. If that hypothetical situation does exist, however, it certainly does not exist in the factual circumstances that are before us. When the contract position was created, it is clear that there was no' certainty as to how long it would exist or whether a permanent position would ultimately be created. There existed no vacancies in the classified service for this position at that time, and it, therefore, in no sense represents an attempt to avoid filling a classified position. When approval was ultimately obtained for a permanent position, the Collective Agreement was immediately complied with, and the job was posted, and in seeking that job, the incumbent in the position is a permissible candidate and is entitled to rely on the extent of all of her experience and qualifications in the subsequent evaluation. Only if the Employer has previously acted in a manner that contravenes the Collective Agreement or has acted in bad faith in giving a particular employee the advantage of experience in the job, - 12 - should that experience be excluded. If the Union allegation is that the Employer is, in fact, using such a process to circumvent the legitimate functions of the Collective Agreement, the onus will be on the Union to establish that fact, and then there may well be a basis for arguing for the exclusion of consideration of .the earlier experience. That is not the situation on the evidence before us. In the result, the gr ,ievance is dismissed. DATED this .6th day ofNovember, 1987. J. D. McManus -, Member L. D. Foreman _ member