HomeMy WebLinkAbout1985-1397.Barber.90-02-01i
1
ONT/\RIO EMPLOY&z DE LA CO”RONNE CROWN EMPLOYEES DE L’ONTARIO
GRIEVANCE
q q BOARD
C$lMMISSION DE
SETTLEMENT REGLEMENT
DES GRIEFS
IN TEE HATTER OF AN ARBITRATION
Under
THE CROWN EI4PLOYEES COLLECTIVE BARGAINING ACT
Before
TEE GRIEVANCE SETTLEHBNT BOARD
Between: OPSEU. (R.E. Barber)
Griever
- and -
Then Crown in Right of Ontario (Ministry of Correctional Services)
Employer
Before:
For the Grievor:
For the Employer:
Hearings:
B.A. Rirkwood vice-chairperson
S. Nicholson Member
E. Orsini Member
N. Belmore
Counsel
Gowling, Strathy & Render-son
Barristers, & Solicitors
M. Fleishman
D. Lepofsky
Counsel
Ministry of the Attorney General
December 7, 1988
March 0, 9, 1989
June 13, 20, 1989
August 29, 1989
October 12, 1989
Page2
DECISION
A competition was held in 1983 for the position of Unit
Supervisor,which is classified as a Correctional Officer 3, at the
Guelph Correctional Centre. Three candidates were chosen for the
position. The grievor, Mr. Barber, was one of three unsuccessful
candidates who grieved the competition. Minutes of settlement
were entered into by the parties which provided that the
competition would be rerun with the original applicants including
the successful applicants and each applicant would retain.the
right to grieve either the process or the results of the rerun.
On November 12, 1985, as a result of the Minutes of Settlement,
the applicants were forwarded a copy of the original Opportunity
Bulletin advertising the position and were invited to be
interviewed on November 27 and 28, 1985. The candidates were
interviewed and assessed. The successful candidates from the
first competition, Sherree Cybulski, Richard Mroz and David
Brunton were also the successful candidates in the 1985
competition.
Mr. Barber, grieved the rerun of the competition. He claimed
that as he had more experience as a Correctional Officer 2 and as
a Unit Supervisor, Correctional Officer 3,' than the three
successful candidates, that he was better qualified than the three
successful candidates for the position of Unit Supervisor.
The union's counsel submitted that the onus is on the employer
to prove that the candidates that it had-selected were superior to
the ,grievor.
The union's counsel further submitted that there were many
flaws in the process, which, if looked at individually were not
significant; but if viewed cumulatively prevented an accurate
assessment of Mr. Barber's skills.
Page3
The Ministry's counsel claimed that the evaluations were
carried out in .an appropriate and reasonable manner. The
Ministry's counsel admitted that there,may have been some flaws in
the process; however, the flaws were not so substantial as to
create a miscarriage of justice, and that the incumbents were much
better qualified than the grievor~. Accordingly, the Ministry's
counsel submitted that the grievor was not entitled to the job.
The three successful candidates were in attendance for the
'hearing. Each were given the opportunity to ask questions of the
witnesses, to bring witnesses and to make submissions. Each one
chose only to observe the proceedings as an affected party;
however, each one was also called as a witness..
The parties agreed that this Board had jurisdiction to hear the
matfer.
TRR PROCESS
The Opportunity Bulletin advertised the position of Unit
Supervisor, in the classification of Correctional Officer 3 as
follows:
, . * . -to ensure the correctional control and
care of inmates on an assigned shift and provide
direction to subordinate correctional officers. To
assist in the development and implementation of
programs.
Successful completion of
correctional officers training course and satisfactory
correctional experience. Good knowledge of Ministry and
Institution's regulations and:procedures and programs.
Supervisory ability. Ability to meet Ministry physical
and medical standards.
- Candidates on this competition may be short
listed based upon pre-selection criteria such as job
performance, experience, attendance and suitability.
Page4
Qualified candidates are invited to submit applications
to their Superintendents not later than August 23, 1983.
Superintendents are asked to forward each application
with an assessment and a copy of the latest appraisal
not later than September 2, 1983 to:.~..
The selection panel was composed of Mr. O'Brien,' Regional
Manager of Personnel for the Western Region, Ms. Janet Kennedy
(Craig), Assistant Regional Personnel Administrator, and Mr.
Thomas Bolton, the Deputy Superintendent of the Guelph
Correctional Centre.
The panelists established a method of evaluating the candidates
which allocated points for various requirements and qualifications
for the position. They used the following scoresheet:
A. EXPERIENCE (up to 1983; Nov. 18)
a) Years of Service in direct contact with inmates:
One point for each year up to five years
One half point for each additional year up to ten
years /7.5
b) Correctional Centre Experience: one point for each
year to
a maximum of 3 points /3
cl D.C./Jail
Experience: One point for each year to a maximum
of 2 points /2
d) Related Experience Outside MCS. i.e. .Police,
Psychiatric Nurse, Observation/Detention Home, etc.:
One point for each year to a maximum of 2 poi!its
e) Supervisory Experience:
Acting on occasion = 1 point /l Permanent Acting 1-6 months = 2 points 12 6 months plus 2
points /2 =
f) Supervisory Experience outside M.C.S. 2
points 12
B. k?QBK
Page5
a) Attendance 0 - 3 days away 2 points
3 - 10 days away 1 point
Other
Extenuating Circumstances (if any):
/2
/1
b) Appraisals:
recommended for promotion 10 points
.--average to above average up to 10 points
--discipline noted 0 - 10 points
/IO
/lO
/IO
Comments:
c. EDUCATION
a) Related
Dipioma: 2 points /2
b) Related Degree: 2 points
Comments:
/2
D. COMMUNICATION
a) Vocabulary
Concise. Articulate Appropriate tone and affect
Maximum 3 points
ORAL:
/3
‘b) WRITTEN: Grammatically correct
Vocabulary
Concise
Maximum 3 points /3
Comments:
E. KNOWLEDGE(Questions)
TOTAL
/80
/125
The panelists used the applications. and resumes to attribute
points for experience and education, and the written skills, the
personnel file for attendance scores, and the yearly appraisals
for work performance. A questionnaire had been prepared to test
the candidates' knowledge and was used in the interviews of the
candidates.
Page 6
The candidates were interviewed by the panel at forty minute
intervals. The panel explained to each candidate that the purpose
of the interview was to assess the candidate's knowledge of the
job and of the institution through their responses to a
questionnaire. The panel did not tell any of the candidates the
number of questions to be asked nor the value to be given to each
question.
Each candidate was asked all questions on the questionnaire
and each panelist scored the candidate on the responses given. The
scores on the questionnaire were averaged to provide the final
score on the candidate's knowledge.
There was an arithmetical error in the total on the scoresheet.
The highest possible total was 134.5 instead of 125 marked on the
scoresheet. However, as there was no error in the addition of the
applicants' scores, there was no change in their respective
positions. The difference in the total effected the proportion
attributed to personal suitability, which was reflected in Parts A
to D inclusive, and to knowledge which was reflected in Part E.
The effect was such that the responses to the questions were worth
59.4% of the total mark as opposed to 64% if the total were 125,
and that personal suitability was worth 40.6 % of the total mark
as opposed to 36%.
There was no dispute that the overall criteria used by the
panel was inappropriate for the job nor that the weighting of the
factors was in error. However, the union submitted that the
griever's scores on the criteria were wrong in that:
.l) the griever should have received two points instead
of no points for his experience in the army, as related
outside experience;
2) he should have received two points instead of no
Page I
points for his experience in an acting supervisory
position;
3) he should have received ten points instead of no
points for being recommended for a promotion;
4) he should have.received three points instead of one .,
point for his oral skills and and three points instead
of one point for his written skills; and
5) he should have received six additional points for his
responses to the questionnaire.
The candidates involved in this hearing received the following
scores :
Candidate Personal Scores Given By Panelists
Suitability O’Brien Bolton Craig Average Total
Barber 21.5 26 32 29 29 50.5
Brunton 27 57.5 61.5 51 59 86
Cybulski 36 61.5 65.5 59 62 98
Mnx 36.5 61 64 59 61 97.5
Therefore, in numerical order the candidates scores are as
follo"s:
MS. Cybulski: 98;
Mr. Mroz: 97.5;
Mr. Brunton: 86; and
Mr. Barber: 50.5 points.
TBE ISSUES
The role of the Board is to determine whether the employer
breached article 4.3 of the collective agreemen.t, which sets out
the prerequisites for filling a vacancy.
Page8
Article 4.3 states:
Article 4.3 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.
The Ministry has the right to establish the criteria, provided
that the criteria reflect the requirements of the job. The onus
is then on the union to establish that the grievor has the
qualifications to do the job. Once established, the onus reverts
to the Ministry to satisfy the board that it has properly assessed
the qualifications of the candidates and that the qualifications
of the successful candidates are demonstrably superior to the
grievor (Zuibrycki G.S. B. # 100/79).
The role of the Board is not limited to a consideration as to
whether the employer acted honestly and reasonably, in assessing
the candidates, as suggested by'the Ministry's counsel, but is to
determine whether the Ministry's assessment was correct. In so
doing, the board must consider whether the process used by the
panelists accurately assessed the qualifications and abilities of
the candidates. If the process is defective such that it prevents
an accurate assessment of the candidates, as in Canadian Food
and Allied Workers Union, Local 175 v. Great Atlantic and
Pacific Company of Canada Limited et al. 1976 CCH Canadian
Limited 332 p. 14056 , and as applied in OPSEU(Remark) and
Ministry. of Revenue, K. Swinton, January 29, 1979, GSB # 149/77
the Board must examine the respective skills and qualifications of
the candidates.
As the competition which was held on November 1985 was a rerun
of the competition of November 1983, the board must consider the
information, questions, and skills and qualifications of the
candidates as if it were 1983.
Page 9
In the event that the board were to find that the candidates
were as equally skilled as each other, the griever would be
entitled to the job as his continuous service was much .greater
than any of the other candidates.
CONSIDERATION OF THE PROCESS
The Opportunity Bulletin asked the interested parties to
forward an application if they wished to be considered for the
job. ,The griever submitted a one page letter outlining his
qualifications. and his background. The other successful
candidates forwarded a more complete summary of their respective
backgrounds.
The Board does not agree with the submission of the union's
counsel that the Opportunity Bulletin created any prejudice to the
grievor by suggesting that an application be forwarded as.opposed
to a resume. Although the Opportunity Bulletin called for an
application, and not a resume, there was no specific application
form that was to be completed and therefore each candidate was
responsible for the form and contents of his or her application.
In a competition, the applicant must review the advertisement
for the position, consider the qualifications which he or she may
think is relevant to the job and set out their own qualifications
and skills in the most complete manner as possible. In this case,
the Opportunity Bulletin suggested that the cqndidates.might be
short listed depending upon their job performance, experience,
attendance and suitability. Therefore, if the applicant did not
submit a full and complete description of his or her
qualifications, the applicant may not get an opportunity to expand
on any of the information given in an interview.
icient The griever's letter of application provided suff
information for the grievor to be given an interview.
L (i’ Page10
The panel used the application and resumes to obtain background
information on each applicant and to provide scores for the
personal suitability of the applicant for the job and to assess
the applicant's written abilities and to provide a score for his
written communication skills. Miss Craig analyzed the grievor's
application, while Mr. Bolton and Ms. Craig analyzed the other
successful candidates.
Mr. Barber testified that the one page letter that was
submitted in evidence as his application was not complete and that
there may have been two further pages. The union's counsel
submitted that had the panel a more complete summary of his
background that he would have been awarded more points. The union
also submitted that the grievor was prejudiced as only Ms. Craig
analyzed his application, whereas Ms. Craig and Mr. Bolton
analyzed the successful applicants.
We find that the letter that was introduced in evidence as the
griever's application, formed his job application in its entirety.
The letter which was submitted in evidence ended with Mr. Barber's
signature and there was no vindication in his letter of any
enclosure.
In any event, although the griever's letter of application was
used for the initial scoring of his background and written
capabilities, the grievor provided additional information in his
interview which was considered by the panel. Therefore, his
interview afforded him the opportunity tp add to the information 1
provided in his letter.
Different people may assess applications differently, but in
this case, Ms. Craig was involved in the assessment both of the
grievor and of the other applicants. In addition, as the
Page11
background was canvassed before the panel, the panel had the
opportunity to consider information which was not~ on the
application. There was no evidence that Mr. Bolton's involvement
in the assessment of the applications effected any of the other
candidates' scores on personal suitability. As a result, the
union's counsel was not able to show the board that the different
persons assessing the applications resulted in a difference in the
scoring nor that the interview failed to correct any deficiency.
When the Board considers the panel's assessment of the
qualifications, the Board does, however, find some errors.
The ,Board finds that the panel did err when assessing Mr.
Barber's supervisory background. The panel gave Ms. Cybulski a
point for her experience as a management trainee in a store for a
four month period and Mr. Brunton two points for his experience
supervising nine staff members of a day-care centre. At the
interview, the panel learned that the grievor had,experience as a
sarqeant.in the army and as a foreman supervising 17 men, but the
panel failed to give him any credit for this experience.
We cannot accept the Ministry's argument that the grievor
should not be given any points as the experience was stale-dated,
as there was no limitation contemplated on the score sheet, except
by the outside date of November 1983, and further supervisory
experience is relevant to the job. Although there was no evidence
which supports a finding that this experience is related to the
job as a Correctional Officer 3, ,by its very nature, it would have
been supervisory in nature and therefore the qrievor should have
been credited for this experience.
The qrievor received one point for. "acting on occasion" as a
supervisor, but did not get any points for "permanent acting"
supervisory experience within the organization. He admitted that
I ,, Page12
he did not receive secondments as a Correctional Officer 3, that
were six months in duration, as set out in the scoresheet, but
that he received secondments which were for periods 'of six weeks,
as well as many which were for a few days and he spent another
nine months going from unit to unit. In his view, his experience
was comparable to a permanent acting position.
The purpose of Part A (e) of the scoresheet was to distinguish
the different supervisory experience which an officer obtains when
an officer remains at one position for a short period of time in
an acting position, as opposed to the experience that the officer
would gain if he were to remain in that position for an extended
period of time. While the cutoff point -for going from acting to
permanent acting position will always be arbitrary, Mr. Bolton
testified that eight days at a posting gave an officer a different
experience, from the experience which an officer would gain from a
series of short acting assignments. Therefore, although the
griever's experience did not fit 'the box created by the
questionnaire, the experience which the qrievor had, exceeded the
eight day placements.which Mr.Bolton suggested created a different
experience. Therefore, when considering the nature of the skills
which Mr. Bolton was looking for, Mr. Barber should have been
attributed some points for his experience in an. acting position,
as he acted as a Correctional Officer 3 for many' extended periods
of time.
An applicant could receive up to ten points for an average to
above average performance and an additional ten points if he or
she had been recommended for a promotion.. An applicant could lose
up to ten points for any discipline; however, none of the
candidates before the board had been disciplined. The qrievor only~
received eight out of ten points for an above average performance.
'The grievor claimed that he should have also received ten points
for a recommendation for promotion.
Page 13
The panel asked for and received supervisors' reports. They
considered the reports, but as Mr. O'Brien testified, they did not
use them, as they found them, not relevant, highly subjective,
extremely brief, and inconsistent; nor did the panel speak to the
supervisors to clarify their respective reports. Instead, the
panel used the attendance records, the discipline records ,and the
last yearly appraisal? from the personnel files.
The supervisor's reports were not presented to the board and
therefore we were unable to assess their content. However, as in
Bullen G.S.B. ++113/82 (J.W. Samuels), although the employer may
establish the selection criteria, based upon the' job
specifications, there is an obligation on the employer to ensure
that all the relevant information is before him. As stated by Mr.
Samuels in his award:
Then the selection procedure must be arranged in such a
way that adequate information generated to make a
reasonable assessment of the qualifications and ability
of the candidates in light of these selection criteria. This Board has dealt at length with this matter in a
number of cases. As a basic requirement of an adequate selection process,
it has been made absolutely clear that the candidates'
supervisors ought to be consulted, because the works
record is critical with respect to internal candidates -
-- see Q&& 9/78;Hoffman, 22179; and w, 126/79.
The supervisor has had the opportunity to watch the candidate
and is in an excellent position to comment on the applicant's
skills and abilities. The supervisor may not be able to comment on'
all the candidates, nor on their qualifications in a relative
sense . He may also not have the perspective to view all the
candidates aria assess the job specifications and the
qualifications, but his assessment is an important factor which
should be taken into account.
Therefore, while we agree that if the supervisors reports were
inconsistent and very subjective that they could have little or no
Page14
weight without prejudicing a candidate, that weakness could have
been ameliorated, or put into perspective, by speaking to the
respective supervisors. Therefore, it was incumbent for the
employer, to contact the relevant people for any information that
may be lacking; As the supervisors' reports were not used nor
were they contacted, there was a serious flaw in the process;
however, on the facts before us, the flaw was not one. which
vitiates the competition. The evidence does not lead the board to
find that the outcome of the competition would have been different
had the flaw been corrected.
If the panel had contacted Mr. Heater, the panel would have
been able to receive his comments on the grievor, Ms. Cybulski and
Mr. Mroz. Mr. Heater, was an OM-15, who supervised all the units
at the time of the competition. He had prepared appraisals on
approximately twelve to' fifteen of the candidates including the
grievor. He had almost daily contact with the grievor when Mr.
.Barber was working in an Correctional Officer 3 position and as an
Correctional Officer 2. Mr. Heater had similar opportunities to
see Ms. Cybulski and Mr.~Mroz carry out thei,r duties.
Mr. Heater testified that he found that the grievor always
carried out his duties in an efficient manner, was well versed in
the institution's procedures, had good control over the inmates
and was vigilant when carrying out his duties. He testified that
he stated verbally to the Superintendent that the grievor's work
performance wasabove average. and that he would be an asset to the
institution. He testified that he made these comments verbally
with the Superintendent and in his appraisals.
Mr. Heater testified that his appraisal of the grievor,
reflected a recommendation for promotion, but we do not find that
it does. The 1982 appraisal verifies that he was a reliable
officer who carried out his duties with a minimum of supervision,
that he had a good working relationship with his peers and with
his supervisors. It also indicates that he handled inmates firmly
Page15
and fairly and was capable of handling problems that arose, on his
own initiative. He was rated in the "B" range in most areas by
all supervisory staff. His subsequent appraisal of February 15,
1983, which would cover part of the year in issue .is similar, but
included the willingness to achieve work goals, an ability to work
at any duty, and an ability to work well under stress. The
appraisals combined show a development in the officer, but not
that he was recommended for a promotion.
Mr. Heater stated that his appraisal of Ms. Cybulski, dated
April 20, 1983 set out his observations and conclusions. He
mentioned that she was a very capable officer as seen through her
work performance, she had a mature working concept which gained
her respect of the fellow staff and Unit Supervisors, that she had
a sound knowledge of the institutions procedures and cant be
depended upon in emergencies, that she had leadership
qualities,and that she maintained effective control over the
inmates without being overly aggressive, In his appraisal of Ms.
Cybulski he clearly recommended her for a 'promotion by stating
that "she has the capability and would be an asset as a Unit
Supervisor".
Mr. Heater's comments on Mr. Mroz were very comparable to those
of the grievor's. He found that he was very efficient, that he
had excellent knowledge of the institutions procedures and was
capable in emergencies. Initially Mr. Heater found that Mr. Mroz
was too rigid with the inmates, but that he overcame that weakness
and was an effective Unit Supervisor.
Mr. Heater did comment on Mr.. Brunton's capabilities, but
admitted that he was not involved with him in the same manner as
with the other candidates,' as he worked in GATU, an autonomous
section of the prison which serves the interests of those
prisoners who are mentally disturbed. He mentioned an negative
incident involving the improper method of distribution of
medication. However, we accept Mr. Brunton's testimony that he
Page 16
was not involved in the incident ment~ioned by Mr. Heater, as' he
did not receive any discipline. We find 'that both Mr. Heater and
Mr. Brunton were credible witnesses, but there was no
documentation to support Mr. Heater's allegation.
In a relative.sense, Mr. Heater considered.all the candidates
to be relatively equal. However, the appraisals which he did, did
not support a recommendation for promotion for all the candidates.
The union's counsel submitted that the process was flawed in
that the panel failed to look at the complete personnel files Of
the applicants.
The Board finds that the panel did fail to review the pe.rsonnel
files in their entirety. The attendance records, the discipline
records and the appraisals, which the panel used may be the key
items in a personnel file; but, frequently a personnel file will
contain other information which is relevant to the applicant's
ability. In this case, the grievor had been praised for his
involvement in the 1974 and 1979 riots and similarly, Mr. Mroz had
also received praise for his role in arresting an escaping
prisoner in 1979 and for saving a prisoner from death by suicide,
in 1980. Such letters go directly to a Correctional Officer's
ability to deal with various situations in a 'prison and should
have been considered.
The union's counsel, submitted that the Ministry~ used the wrong
yearly assessments as the dates of the assessments were beyond the
August 1983 date for the submission of information. a
We find that as with the, supervisor's reports the annual
appraisals of an applicant's performance for the preceding year,
is a relevant consideration in assessing the skills and
qualifications of the candidates. They should have been used. A
Page17
difficulty arises as each appraisal was done at a different time,
and therefore the period covered is not the same with each
employee. Mr. Barber's appraisal was dated February 15, 1983,
MS. Cybulski's was dated April 20, 1983, Mr. Brunton's, November
11, 1982 and Mr. Mroz's, November 7,~1983.
I Mr. Mroz's 1983 appraisal was clearly beyond the date of the
competition; Mr. Mroz's earlier appraisal was not before the
panel nor the board. If Mr.~ Mroz's 1982 appraisal had been used,
it would not have reflected his abilities for most of the year
preceding the competition. There is merit in considering an
appraisal that may be dated after the competition if it evaluate's
the officer for the relevant time period and is reflective of the
pertinent time period and not beyond; however, if subsequent
appraisals are to be used, they should be reviewed for all the
candidates in the same manner. The use of appraisals covering the
relevant period of time provide information that is analogous to
the information that could be received by speaking to a supervisor
to update the appraisals.
The next question to be answered, is what information can be
gained from the appraisals.
Although the griever claimed that his March '1983 appraisal was
based upon his work in the Tower as a Correctional Officer 3, we
do not find that there is any evidence to support his contention.
The griever had not acted as a Correctional Officer for the year,
but was only seconded to that position for varying periods of
time. As he was a Correctional Officer 2, and the appraisal is a
consideration of his work over the year, we do not find that it
was a recommendation that he be promoted to a Correctional Officer
3 position. We do find however, that his appraisal indicated that
he performed above the standards of an average officer..
Page 18
The griever testified that Mr. Leprich, his shift supervisor,
who had made hi5 1983 appraisal, had frequently encouraged him to
apply for a Correctional Officer 3 position. The board cannot find
that Mr. Leprich's suggestion to the grievor can be considered a
recommendation for promotion; a recommendation for promotion must
be a recommendation made by those'in authority to those who have
the ability to give a promotion.
All the evidence in support of Mr. Barber's performance
indicated that Mr. Barber was an above average officer, but there
was no documentation that to support a finding that he was
recommended for a promotion.
The union's counsel submitted that the successful candidate,
Mr. Brunton was wrongly credited with eight points for a
recommendation for promotion. Mr. Brunton's assessment dated
November 11, 1982 stated the " If Mr. Brunton continues to improve
as he has in the past he will certainly have the potential for
future improvement." This statement. cannot be construed as
recommending promotion as it is based on contingencies which were
not resolved by the time of the next assessment. Furthermore, even
if we were to consider the subsequent appraisal as. reflective of
the~preceding year, his assessment of December 22, 1983 made no
further mention of the possibility for promotion. Therefore, we
agree with the union's submission that Mr. Brunton was. wrongly
attributed eight points for a recommendation for promotion.
On the other hand, Mr. Brunton was not awarded any points for
his performance. He was however part of the Crisis intervention 1 Unit, showed leadership qualities when chosen as a Team Leader,
was one of four people throughout the province, who wars asked to
participate in 1980 for the Advanced Correctional Studies, which
dealt with problem inmates. Furthermore, after considering Mr.
Heater's 'comments and the letters of praise which he received, we
‘f
Page 19
conclude that his performance was also above average and therefore
he should have received credits in this area, which he did not.
Therefore, although an error was made in the classification of his
talents, we do not find that Mr. Brunton's overall score on his
performance would vary a great deal as it was the information.was
wrongly classified.
The union submitted that Mr. Barber improperly was denied full
points on his written and oral communication skills.
The information which Mr. Barber provided in his letter of
application was too brief after considering his testimony on his
background, and briefer than those of the successful applicants.
However, an application is not necessarily representative of the
ability to write the reports that were necessary .for the job. If
the panel had spoken to Mr.-Heater, they would have learned that
Mr. Barber was experienced in writing reports and was competent to
do so. Therefore, we find that the grievor should have received a
greater credit in this area.
.With respect to the griever's oral skills we find that he was
articulate, concise, and that from Mr. Heater's evidence used the
appropriate tone. Further evidence of this is that he had very
good control of the inmates.
We do accept, however the comment by the panel on his
scoresheet that he was "too concise." and that "he doesn't listen
to questions". We are loathe to second guess management, and
there is no evidence to'suggest the contrary.
Therefore, the panel made some errors in the process which they
used to assess the applicants on their personal suitability, by
failing to speak to the applicants' supervisors and by not
reviewing the whole personnel file.
Page 20
The next area to be considered is the interview and the
scoring of the questionnaire.
The union's counsel suggested that the questionnaire did not
accurately reflect the job as there were insufficient questions on
posting, layout and security of the institution. Furthermore, he
submitted that the questionnaire did not deal with the development
and implementation of union programs, which according to the job
specification represented 20% of the duties. He submitted that
the process that was followed was also defective, as the grievor
was unaware of the numbers'of questions to be asked and the value
to be given to their responses.
When considering the role of the Correctional Officer 3 as set
out in the job standards, we find that the questionnaire reflects
many of the facets and the information which a correctional
officer may'be called upon to use in the exercise of his job. The
questions given were of a general nature, and most related to the
Manual of Standards and Procedures, which is universal to the
Ministry. There were three questions that related to standing
orders, which would be particular to the Guelph Correctional
Centre. The questions were directed to the qualifications sought
on the Job Specification, which required a "working knowledge of
relevant legislation, policy, and procedures,"
Although ideally, a questionnaire should cover all aspects of
the job, the construction of a questionnaire is not a pure
science, but must be a reasonable reflection of information or
skills and abilities that relate to the job. As the foundation of
the job requires a working knowledge of the institution and its
policies, we do not find that it was unreasonable nor unfair to
assess general knowledge. Similarly, it is not unreasonable to
base the questions on general knowledge as opposed to the
particulars relating to the layout and the, procedures in the
institution itself. Therefore, we find that the questions were
proper.
While it may or may not be helpful to know the value of scores
to be awarded to various answers to be given, we do not see why
the failure to provide this information creates a defect which
strikes at the validity of this form of testing. In this case,
all the applicants were treated in the, same manner. None of the
applicants were told of the numbers of the questions, nor oft the
values to be given to the answers. This situation is not as in
the case of Re Eastern Provincial Airways (1963) Ltd. and
Canadian Airline Employees' Association 24 L.A.C. (2d) 71
(Christie), in which the test given to the applicant was found not
to be appropriate, and the applicant never understood what was
expected of him in terms of comprehension, speaking ability or the
speed at which he had to respond.
In this .case the panel clarified any question which an
applicant may have had, and gave the grievor the full opportunity
to respond. Each applicant, including the grievor, testified that
he or she answered the questions as fully as possible. The
grievor testified that he had answered all the questions as fully
as possible and that he believed that he had a good interview. He
did ask for clarification of one of the. questions and received
clarification. Although he stated that had he known the relative
worth of the questions that he would have answered some more
fully. He admitted that he was not prevented from comp,leting any
answers and that he was given the opportunity to say more if he
wished. The grievor knew that he was in a competition and it was
incumbent upon his to provide as complete answer as he was able to
do.
The difficulty that the grievor found himself in, is that he
relied on his experience as a an Acting Correctional Officer 3, to
provide him with the ability to answer the questions.
Page22
The successful candidates however, had taken a different
approach prior to the interview and had, in addition to relying on
their experience, spent considerable time formally studying the
manuals, and asking questions which gave them a greater breadth of
knowledge. Ms. Cybulski started preparing for the competition
about one year in advance of the posting. Not only did she try to
get as much experience as possible, she reviewed the manuals,
applicable legislation, and all policy directives. Mr. Mroz also
began his preparation in advance, asking questions and reading
manuals, and legislation. Mr. Mroz was also able to rely on his
experience, as he spent one-half of his time in 1982 and 1983 as
Acting CO3 ,on the cellblock and at the ~dormitories. Mr. Brunton
prepared for the questions extensively, by formally studying the
materials, talking to other Correctional Officers, and reviewing
his incorrect answers from an earlier time when he had
unsuccessfully applied for the Correc$ional Officer 3 position.
As a result of this formal preparation, when the other
candidates were questioned, they were not limited to providing
answers based upon their own experiences, as was the grievor, and
each of them was able to provide more complete answers to the.
questions asked than the grievor. In reviewing the answers given
by the candidates, it was apparent that their 'answers were more
fully developed and included more facts.
In reviewing the grievor's answers to the questions asked we
find that a couple of his answers could possibly gained him a
couple of,points, but the gains are not.such as to place him in
contention with the other successful candidates.
SUMMARY
The union has been able to show that the grievor had the skills
and abilities to perform the job of a Unit Supervisor,
Correctional Officer 3, and therefore the issue is whether the
employer has been able to show that the successful candidates are
demonstrably superior to the grievor.
In ,this competition, the grievor Scored substantially lower
than the successful candidates. Although we find that there are
areas where we would have given the grievor more points on his
score sheet, after consideration .of the scoring of the other
candidates, we do not find that the griever's scores as adjusted
are such as to support a finding that he is as capable as these
Other candidates.
Notwithstanding the errors which the panel made in assessing
the information we find after considering all the evidence before
us that there would only be a small improvement to the griever's
score on his personal suitability. Mr. Brunton should not have
KeCeiVed eight points for a recommendation for promotion, but he
was not given any points for his ability, which was clearly above
average, and therefore'there would be very little difference, if
any, in their relative positions.
The major difference in points between the candidates arose as
a result of their responses to the questionnaire. The
questionnaire was proper but the grievor failed to provide
sufficient information in response to the questions asked. After
considering his responses, the net affect of any of any point that
he should have received would not have changed the,outcome of the
competition.
After hearing all the evidence and reviewing all the exhibits, 1
there was no doubt that Mr. Barber was a capable officer and one
who was able to do the job of a Correctional Officer. 3. He had
acted in that capacity on many occasions and more frequently than
the other candidates, which is evidence of his capability. His
supervisors recognized that he was a capable officer. Mr. Heater,
found that MK. Barber was an efficient officer, very knowledgeable
,on procedures, very capable in emergency situations, had good
-
Page24
leadership qualities, and was above average in maintaining control
over the inmates. His experience as a Correctional Officer 3 gave
him experience knowing the layout of the institution and of the
procedures. The panelists also considered that he was capable.
However, the test is not whether the grievor is capable of
doing the job, but whether the successful candidates are more
capable and better qualified than the grievor to do the job.
In reviewing the qualifications and the experience of the
successful officers we do not. find that the panel erred in
ascertaining that they were better qualified than the grievor. The
grievor, although capable, had the misfortune to .be fin a
competition with a pool of highly qualified candidates. In another
circumstance, with other candidates in the pool, he might very
well have been a successful candidate.
Accordingly, the grievance must fail.
Dated at Toronto, this 1st day of February IWO.
HI Ai-Kirkwood, Vicechairperson
Dissent as attached
S. Nicholson,'. Member
Nominee
4’ b .;.
IN THE MATTER OF AN ARBITRATION
BETWEEN: THE CROWN IN RIGHT OF ONTARIO (Ministry of Correctional Services)
Employer
AND
ONTARIO PUBLIC SERVICES EMPLOYEES UNION
Union
AND IN THE MATTER OF THE GRIEVANCE OF RON BARBER
DISSENT
I have read the award of the majority, and find I must
dissent from its finding that the grievor was not at least as
qualified,and able as each of the other candidates. I would have
awarded the job to the grievor, because in my opinion, he met the
test set out in the collective agreement: . i.e., considering that
he was relatively equal in qualifications and ability, his greater
seniority should have resulted in being one of the successful
candidates,
I do agree with the finding of this'Board, that there
were flaws in the competition process. I further agree that those
flaws as outlined in the Award, were numerous and significant, and
that the results of that flawed process had to be set aside, and
that this Board had to make a determination of the griever's
qualifications and ability to do'the C03.job compared to the other
three candidates.
The uncontradicted evidence of the two management
witnesses called on behalf of the grievor was that Mr. Barber was
at least equal to the others in his qualifications and ability -
and that assessment was the result of their knowledge of Mr. Barber
as both a CO2 and a CO3 (acting). No other supervisors were called
in defense of the Employer's position, other than those. who
participated in the Panel, to indicate a contrary assessment of Mr.
Barber's qualifications and ability. And it must be noted that
this latter testimony was not from Mr. Barber's direct supervisors
who had personal knowledge of his qualifications and ability, but
was from "management" personnel who knew him through this
particular interview process.
In light of the very significant omission by the Panel
in not utilizing input from Supervisors in coming to their
decision, then this Board should have listened very closely to Mr.
Heater and Mr. Ferguson, and should have given great weight to
their assessments.
The Award sets out the myriad of areas of defects in the
process, and I won't repeat them here. However, the Union argued
that, by properly assessing the candidates, with all the
information available being fairly and properly considered, Mr.
Brunton's score~dropped to 76, and Mr. Barber's score rose to 74.5.
Therefore,' even if we give credibility to the format of the
questionnaire, the interview, and the suitability score-sheet, then
Mr. Barber can be seen to be relatively equal to Mr. Brunton: Had
the format and the panellists been assessing and scoring fairly and
properly at the time of the Competition, then perhaps the results
would have been even more obviously in favour of Mr. Barber.
We cannot re-format the competition, but we can judge the
information given to us at the hearing. The majority suggest, on
page 19, that "we are loathe to second-guess management", with
reference to whether or not Mr. Barber was too concise at the
interview, and whether or not he listened to questions. I disagree
with that comment, and I think that our job as a Board of
Arbitration is to do precisely that - we listen to what Management
I
3
has to say about the issues, and we listen to what the grievor and
the Union haves to say, and we V1second-guess" the findings of
Management to either overturn those findings or confirm them.
We, as a Board, did find that the decisions and
assessments made by the Management Panel were based on inaccurate,
inconsistent, and insufficient information. Therefore, in my
opinion, this Board should have gone the extra step of fairly,
completely and consistently assessing the relativity of the
candidates, and, based on the.evidence led on behalf of Mr. Barber,
should have found that he was equal, or superior, to the others.
Based on those findings, I would have granted the grievance.
DATED AT Toronto, Ontario, this (5%~ of January, 1990.
Sandra Nicholson
Union Member