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HomeMy WebLinkAbout1986-0105.Anderson.88-01-15I (1 Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEWNT BOARD OPSEU (Keith Anderson) Grievor and The Crown in Right of Ontario (Ministry of Environment) Employer Before: M. Wright J.D. McManus W.A. Lobraico Vice-Chairman Member Member For the Grievor: Paul J.J. Cavalluzzo Counsel Cavalluzzo, Hayes and Lennon Barristers and Solicitors For the Empoloyer: A.P. Tarasuk Consultant Central Ontario Industrial Relations Institute Hearings August 6. 1987 October 8, 1987 ( , , 1, j’ / \ 0 ’ DECISION . A competition was held to fill two positions classified as Senior Environmental Officer in the Ministry of the Environment. Of the six applicants who applied three were held to be qualified. The three qualified candidates were ranked as follows:- 1st Gareth Mongrain 2nd John Neamtz 3rd Keith Anderson, who is the Grievor The Grievor has the greatest "length of continual service" as provided in Art. 4.3 of the governing collective agreement. He challenges the appointments on two grounds:- 1. That the Grievor's qualifications and ability are relatively equal with those of Mr. Neamtz; since the Grievor has the greater seniority, it is argued that he should have been appointed; 2. That the competition was not conducted fairly. (Both Mr. Mongrain and Mr. Neamtz were present throughout the hearing and were given the opportunity to participate. I should point out that there was not a word of > , .I - 2 - i evidence questioning Mr. Mongrain's appointment so that the Grievance is really directed against the appointment of Mr. Neamtz.) It is appropriate, in my view, to deal firstly with the second point, namely that the competition was not conducted fairly since if the competition was not conducted fairly the appointment should be set aside without further question. A selection panel of three members was constituted to conduct the competition. The selection panel was comprised of the following:- - David Crump, the Chairman of the panel. He is Manager, Special Waste and Information Support Section, Waste Management Branch in the Ministry of the Environment. Mr. Grump holds a degree in Mechanical Engineering; - Ruth Hill, a representative of the Human Resources Branch in the Ministry of the (,:- Environment who is engaged with personnel matters. Mr. Crump explained that Ms. Hill was there to ensure compliance with the collective agreement. - Peter Rosten. He is an Area Supervisor with approximately 12% years of service in the Ministry of the Environment. He holds a degree in Civil Engineering. ‘. I 1 - 3 - The competition was conducted in two parts, namely an oral interview and a written test. The oral interview revolved around sixteen questions. The questions were set by an Area Supervisor (not Mr. Rosten) together with Mr. Crump. The questions and the answers to them were drawn up and were available to each selection panel member during the interview. It was explained to us that the answers were provided to the panel'members in order to avoid confusion in grading the applicants and also for the benefit of Ms. Hill who did not have the technical knowledge which Mr. Crump and Mr. Rosten have. Mr. Crump testified that the questions were formulated in order to elicit information to assist in determining the suitability of the candidates for the requirements of the position. It was arranged in advance of the interviews that each member of the selection panel would ask certain of the questions, i.e. the same member of the selection panel put the same questions to each of the applicants. In addition to the above, Mr. Crump prepared a fictitious letter addressed to the Minister of the Environment by an official described as the President of the Agricultural Lands Preservation Organization objecting to the policy of the Ministry of the Environment and of the steps which the Department was taking, or failing to take, in order to remedy the situation complained of. The letter raised i , I 1 - 4 - issues which are real and current within the Department such as the loss of lands for farming and the re-zoning practices contributing to the situation, questions of public funding and policy and the resulting costs to farmers. At the conclusion of each interview the candidate was given a copy of the letter and was asked to prepare a draft reply for signature by the Minister of the Environment. Bo,th Messrs. Crump and Rosten testified that Senior Environmental Officers are often required to draft letters of the kind involved for the Minister's signature. We were told that the Minister gets numerous letters questioning some Departmental decision. The Minister relies upon senior officials, including Senior Environmental Officers, to draft replies for him. Mr..Crump testified that each candidate. was told to take "about a half an hour" to draft a response. The Grievor complains about this aspect of the competition stating that it was not made clear to him that he could take a half an hour and also that Mr. Neamtz had told him that he had been informed that he could take about an hour -- not half an hour -- to prepare his reply. The Grievor's evidence in this respect is somewhat imprecise to say the least. To begin with, the Grievor does not carry a watch, leaving some room for an honest mistake. Secondly, the Grievor admitted to being somewhat "anxious" about the competition stating that while he felt comfortable at the - - 5 - interview it was a bit of an "ordeal" for him. He attributed this in part of the fact that he was the first candidate to meet with the selection panel so that the questions to him would necessarily be somewhat "sharper" but, in any case, he testified that although he took about half an hour to write his reply, Mr. Neamtz was given more time. The Grievor's own evidence, however, confirms that Mr. Neamtz took a half an hour to prepare his reply. Mr. Neamtz was the second candidate to be interviewed -- following immediately after the Grievor. Indeed, Mr. Neamtz's oral interview took place while the Grievor was preparing his draft Ministerial reply. Both the Grievor and Mr. Neamtz agreed that Mr. Neamtz's oral interview began at about lo:15 a.m. and that it lasted for about 45 minutes; in other words, until about 11:OO a.m. The Grievor stated that he and Mr. Neamtz left for lunch together at about 11:30 a.m. so that, on the Grievor's own evidence, it is clear that Mr. Neamtz used the time between 11:OO a.m. and 11:30 a.m. (one-half hour) in which to prepare his reply. I am not persuaded, on the Grievor's own evidence, that Mr. Neamtz was given more than one-half hour in which to draft his reply. Incidentally, the.following appears as the final paragraph in the list of questions which were used in the oral interview (Exhibit 11) :- : .’ i - 6 - "Have you ever drafted letters for the Minister's signature? Could you take l/2 hour after the interview and draft an appropriate reply to this fictitious letter. Your reply will be judged on style and recognition of key elements. You can make up any appropriate "facts". Leave your draft with the receptionist." The panel members all assigned higher marks to Mr. Neamtz than they did to the Grievor with regard to the draft response for the Minister. The Grievor is highly critical of the marks which were allotted for the oral interview. It is contended on his behalf that the marks or ratings given by the selection panel demonstrate unfairness to the Grievor. These are dealt with seriatim hereunder. There were filed as exhibits the "Employment Interview Rating Form " for each of the three candidates who were considered to be qualified. These documents show the marks \ according to which each of the panel assessed the quali- fications of the three candidates. The Form contains two columns, one for "weighting factors" and the other for "points scored". These were filled out by each of the selection panel members and are really the "master" sheets for each candidate. Attached to the "master" sheet were working papers which each panel member used for his or her personal .~ i I ’ - 7 - ! guidance. Although she was not required to do so, Ms. Hill adopted the practice of assigning individual marks to each question and it was pointed out by Counsel for the Grievor that some of these marks had been changed and that the fact that changes were made must raise doubts as to the fairness of the competition. I fail to see the merit of this contention. An examiner is not irrevocably committed to a mark. An examiner is entitled to change marks as part of an objective evaluation which necessarily entails many f personal assessments and opinions as to how candidates perform. As long as the changes are made honestly as part of the overall competitive process there is no cause for criticism. Indeed, Mr. Rosten had also made changes as the competition progressed. He admitted quite freely that.he used an eraser quite often during the selection process. I see no reason to ascribe unfairness to a panel member making changes or erasures as the competition proceeds. c The competition was characterized as being unfair for another reason. Mr. Crump and Ms. Hill had marked the candidates according to "weighting factors" of 105 points. By oversight, Mr. Rosten marked the candidates on the basis of 100 instead of 105 points. It is very clear, however, that Mr. Rosten marked all of the candidates on the basis - of 100 instead of 105. Thus, Mr. Rosten's method of marking was based on the same "weighting factors" for all of the ,i r ’ - 8 - i candidates including the Grievor and Mr. Neamtz. see why that method of marking, albeit it resulted an oversight, should affect .the outcome; certainly not warrant a finding of unfairness. I cannot from it would The "Employment Interview Rating Form" had a place in which to mark the "ranking" of each candidate. Although Ms. Hill ranked Mr. Mongrain as number 1, she overlooked ranking Mr. Neamtz and the Grievor. But the marks which she assigned to Mr. Neamtz are clearly higher than those assigned to the Grievor. The marks were totalled by her and, in the result, Mr. Neamtz was given 89 points and the Grievor 85. (Mr. Mongrain scored 92 points.) There is no doubt, therefore, as to the relative rankings of Mr. Neamtz and of the Grievor. All three members of the selection panel ranked Messrs. Mongrain, Neamtzand Anderson in the same order as stated above. We are satisfied that the selection panel acted fairly. Each panel member assigned his/her marks without discussion with the other members. The same went for the draft letters for the Minister which were marked by each panel member independently of the other two members. We accept the evidence of Messrs. Crump land Rosten that the members of the selection panel did not entertain any bias whatever against the Grievor. Indeed, Mr. Crump stated "I like the man" referring to the Grievor. As has already been stated at the beginning of this Award, the Grievor argues that the competition should be set aside since the collective agreement was not complied with in that the Grievor's qualifications are "relatively equal" with those of Mr. Neamtz and that since the Grievor's "length of continuous service" exceeds that of Mr. Neamtz the Grievor should have been appointed. The relevant article of the collective agreement is 4.3. It reads as follows:- "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." It must be observed that in absolute terms Mr. Neamtz was given more points thanthe Grievor. The results were as follows:- Mr. Mongrain - 252 points Mr. Neamtz - 239 points Mr. Anderson - 232 points - 10 - Mr. Cavalluzzo contends that the points scored by Mr. Neamtz and Mr. Anderson indicate that their qualifications and ability are "relatively equal" within the meaning of the colLective agreement. The expression "relatively equal" has been discussed in several arbitration decisions. In support of his contention Mr. Cavalluzzo refers us to g Textile Workers Union and Lady Galt Towels Limited, 20 L.A.C. 382 in which Prof. Christie, at page 385, said:- a' In the collective agreement before us I have come to the conclusion, in the words of the arbitrator in Owens - Illinois Glass Co. (1962), 2 CCH Arb.8660, that “the real test is one to determine who is best qualified by a substantial and d+ monstrable margin. . . . If the margin is less than substantd then qualifications are relatively equal and seniority becomes the determining factor." Whether the same might be said where the seniority clause referred to qualifications being simply “equal” need not be decided in this case. ** (underlining added) We were also referred to other arbitral decisions including Ministry of Transportation and Communications and OPSEU, re G. Richards (g/78) in which Prof. Prichard stated the following:- "The issue then, is one of fact: does the evidence before us demonstrate,on the balance of probabilities that the grievor's qualifications and ability are relatively equal to Mr. Cocking's? In considering this issue we have been z ,, I? :. / 6. ” ,’ ’ - 11 - guided by the interpretation of the term “relatively equal” as developed in Re Lady Galt Towels (19691, 2.0 L.A.C. 382 (Christie) as modified and explained in Great Atlantic & Pacific Tea Co. of Canada Ltd. (19191 21 L.A.C. 12d) 444 (Weatherill) (see alLo Re Toronto Star (unreported decisiofi-of a Board chaired by Professor Prichard dated July 15, 1980).” 1 find arbitrator Weatherill’s statement at page 447 of the Great Atlantic & Pacific Tea case eminently reasonable. I He put the situation as follows:- i *In Re Lady Gait Towels Ltd. ad ‘Z’eztile Workers Onion (1969). 20 L.A.C. 362 (Christie), the board adopted the view that the test of “relative equality” is really one of determining whether or not one employee is more qualified than another by a “substantial and demonstrable margin”. We would agree with this, subject always to the qualification that the determination is to be made having regard to the particular job in question. While we imagine that differences between employees must always be “demonstrable” if they are to be relied on, the notion of what is a “substantial” margin of difference is, like the notion of “relative equality” itself, one which caIls for judgment in relation to the relevant circumstances. While a small difference between individ- uals might not bs substantial or significant with respect to some unskilled job, a small difference could well be substantial and sig- nificant in relation to a more complex task. It is a matter of judgment, and, at least under the collective agreement before us, that judgment is to be exercised in the first instance by the com- pany. I1 The standard, as stated by Arbitrator Weatherill, when applied tothe facts of this case, leads to the conclusion that it has been amply demonstrated that the qualifications of Mr. Neamtz are substantially higher than those of the Grievor to the point that it cannot be said that the qualifications of Mr. Neamtz and the Grievor are relatively equal. when Mr. Crump was testifying he was asked whether the selection panel had given consideration to Article 4.3 of the collective agreement. He replied that there were "significant and important differences between the Grievor and Mr. Neamtz" as reflected by the results of the examination. He pointed out that in a number of fields they were equal but on total balance the issue of their qualifications being "relatively equal" did not arise. Therefore, he said, the provisions of Article 4.3 did not apply to this case. We agree with that conclusion. For all of the above reasons the Grievance is dismissed. DATED AT OTTAWA this 15th day of January, 1988. -&/&L@Y W. WRIGHT; Vice-Chairman "1 dissent" (Dissent to follow) r :’ .f ‘.> i ( ‘. FILE # 105/8b. Ontario Public Service Employees Union Keith Anderson Grievor - and - The Crown in the Right of Onario Employer DISSENT I have read the majority-award, but with respect find that for the following reasons I must disagree with the final decision. Firsti.l;tbe question of the grievor's rdatiVe equality, on the reading of the following cases I must agree with the statements in; RE: U.A.W. and Westeel Products Ltd.~(1960), 11 L.A.C. Page 199 (Laskin) That it is futile to speak of absolute equality in cases such as this one. In our view applicants are "equal“ unless there is a DISCERNIBLE MATERIAL DIFFERENCE around which a reasonable and objective employer might pivot his decision. (underlining and exphasis added) ( c- 2. RR: Lady Galt Towels Ltd. and Textile Workers Union. (1969), 20 L.A.C. Page 382 (Christe), the board adopted-the view that the test of "relative equality" is one of determining whether ox not one employee is more qualified than another by a "substantial and demonstrable-margin. (Underlining and Emphasis added) On review of the facts of this case, I find that the difference between the gr,i.evor (Mr. Anderson) and.the incumbant (Mr. Nearnets) was 2% of the points awarded to each of the contestants. It is based on the remarks in the cases Supra that gives me cause for concern, the "sub- stantial and demonstrable-margin" or the discernible, material dif- ferences, appear to be absent in this case. If that is so, then the Collective Agreement in Article 4.3 gives direction, "Where Qualifica- tions and ability are relatively equal, length of continuous service shall be a consideration"" . (Underlining added) Secondly, the competition ,itself, much emphasis wasaddressed to the fictitious letter to the Ministry about a certain policy they had adopted, and the reply that the applicants had to write, yet once again we find on review that the points awarded were in fact only five (5) out of a total of 310 or expressed another way 1.75%. Tbs compositionof the panel, one of the members had no technical knowledge of the position that was being sought. ,This in a com- petition that had more than a fifty percent technical component, would not be fair or reasonable, to my mind. ‘c s”‘ c 3. The whole question of the marks being changed, while during the interview, or after, at the panelrj final interview, would suggest to me that whole~exercise rightly or wrongly has been tainted. In conclusion, and based on the above facts the. competitionwould appear tihave been not only unfairly, but also unprofessionaly administered. It then follows that management can hardly be seen to have acted reasonably in trying to determine the proper outcome of the competition for position of the Senior Environmental Officer. (2) Even if the competition was not seriously flawed, the question of the grievor!srelative equality based on the final figures, and the proper application of Article 4.3, should have made the awarding of the position to the grievor the correct result. And I would have so ordered. John D. McManus