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HomeMy WebLinkAbout1986-0875.McLoughlin.87-10-29. IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: CUPE (M. McLaughlin) Grievor - and - The Crown in Right of Ontario (Ministry of Housing) Employer Before: J.E. Emrich J.D. McManus G.J. Milley Vice-Chairperson Member Member For the Grievor: J. Lynd National Representative Canadian Union of Public Employees Local 1396 For the Employer: H.J. Laing Counsel Sanderson, Laing Barrister & Solicitor Hearing: May 27, 1987 q, DECISION This arbitration arises from a grievance concerning a job posting in April, 1986 for the position of Community Relations Worker at the Thunder Bay and District Housing Authority. It is the highest paid position in the bargaining unit and is classified as Welfare Field Worker 2. Although there were forty applicants for the posted position, the grievor was the only candidate who held a position with the Thunder Bay and District Housing Authority. The grievor has held the position of Clerk Typist 2 for over eight years. The Union grieves on her behalf that the Employer violated Articles 3.01, 8.03 and 8.04 by awarding the position to Ms. Armstrong, who was an external candidate. In particular, the Union claims that the Employer erred by failing to grant an-interview to the grievor during the selection process. Furthermore, the Union claims that the Employer incorrectly assessed the grievor's skills and abilities for the position as not relatively equal to the successful,incumbent, who had no seniority. The incumbent, Ms. Armstrong, was notified and was present at the hearing but chose not to participate. The relevant articles set up a competition among candidates for a permanent posted position and oblige the Employer to endeavour to fill the position with local employees. In carrying out its obligations under the collective agreement, the Employer is obligated to act without discrimination or intimidation. The relevant articles read as follows: Article 3 - Discrimination or Intimidation 3.01 The Employer and the Union agree that no discrimination or intimidationwill be practised or permitted by any of their official officers or otherwise against any employee or any representative of the Employer by reason of or arising out of directly or indirectly and activities of 2 the Employer or out of trade union membership or activity,,whichever is applicable, or by reason of race, sex, colour, creed or political affiliation. Article 8 - Staff Changes 8.03 When a vacancy of a permanent nature occurs in the bargaining unit, the Employer will endeavour to fill the position from.among those employees presently in the Local Housing Authority in which the vacancy occurs. 8.04 In filling a vacancy, the Employer shall give consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the determining factor. At the outset of the hearing the Employer proposed that the Board consider as a preliminary matter whether the Employer had acted improperly in its screening procedure by finding that the grievor was unqualified for the position and consequently refusing the grievor an interview. The Employer conceded that the burden would be upon it to show that it had acted properly in this regard. The Employer submitted that if the Board found that the Employer had acted properly in carrying out its screening'procedures, then the grievance could be dismissed on the basis that the grievor's qualifications and-abilities were found not to be relatively equal. If the Board found that the Employer ought to have granted the grievor an interview, then the Board would reconvene to assess whether the Employer had applied the relevant standards of the collective agreement correctly. In support of its proposition, the Employer cited the following cases: OPSEU (Balicsl and Ministry of the Environment 42/84, and OPSEU (Borecki) dnd Ministry of Natural Resources 356/82. 3 ::E tinion objected to proceedins on thii 5a;i;, or, the grounds that it was grieving not only that an interview had not been granted to the grievor, but that the grievor was entitled to have been awarded the position because her qualifications and ability were relatively equal to those of the successful applicant. After hearing the submissions of the parties, and conferring, the Board decided to hear evidence and argument on the preliminary matter. Thus the Board would examine whether the Employer had acted improperly during its screening procedure so ds to reach a decision that the grievor was unqualified for the position and consequently not granting an interview. The Board explained-that it would adapt this procedure without prejudice to a further hearing on the merits, should it be found that the Employer had acted improperly in its screening process. Mr. Glean Mills is the General Manager of the Thunder Bay and District Housing Authority for which he has worked for sixteen years. He sat on the selection committee for the position of Community Relations Worker with the Chairman of the Board of Directors of the Thunder Bay and District Housing Authority, Pat Gamble and the Chair of the Community Relations Committee. Ms. Bev Baranyk. He identified and elaborated upon the internal posting for the position which was filed in evidence: POSITION TITLE: COMMUNITY RELATIONS WORKER CLASSIFICATION: YELFARE FIELD WORKER 2 AREA: THUNDER BAY AND DISTRICT HOUSING AUTHORITY SALARY RANGE: $12.79 PER HOUR TO $14.56 PER HOUR (PRESENTLY UNDER REVIEW) COMP NO 86-01 - 35 HOURS PER WEEK \ The Thunder Bay and District Housing Authority requires an individual to facilitate tenant participation and co-operation in community matters and in resolving tenant problems. Decision making involves the employee recommending courses of action which 4 . 4 4 may involve internal programs and/or consultation with other agencies. Performance of duties require the employee to have a good~working knowledge of all internal procedures as well as a 'thorough understanding of related philosophy developed at the central level. DUTIES - Interviewing tenants to determine what assistance can be provided towards resolving their problems or helping them become intergrated into the community. -.Working with various agencies in order to resolve tenant problems. - Meet with tenant associations on a regular basis to help resolve problems. - Encourage tenant participation in the care and maintenance of their particular housing projects. - Consult with members of other professional disciplines (physicians, psychologists) to secure social data of a confidential nature. -'Assist residents to relocate to other institutions if necessary after appropriate assessments have been made. - Counsel Residents to arrive at realistic decisions whether they can still satisfactorily maintain their apartments. LOCATION Thunder Bay with some travel in the District and Province. MINIMUM QUALIFICATIONS - Skills and knowledge required to perform this position at a full working level would normally be acquired through a Degree Program in either the Bachelor of Social Work or other accredited social work programs with a minimum of 3 years practical experience in the social work field. - Above average tact, diplomacy and integrity for interacting ,with people at all levels is a definite asset. - Excellent communication and interpersonal skills are essential. - Must.have a proven record in being able to get along with individuals and fellow workers. - A valid Ontario Drivers license is essential. Written applications or resumes are to be received no later than April 11th. 1986 at the office of: Glen R. Mills, C.M.A., F.I.H.M., Manager Thunder Bay District Housing Authority 1111 E. Victoria Avenue Thunder Bay, Ontario P7C 167' '. EQUALITY OF OPPORTUNITY FOR EMPLOYMENT 5 i . Mr. Mills explained that candidates were assessed upon the minimum qualifications stated on the job posting. In particular, Mr. Mills testified that the committee considered a candidate qualified if the candidate possessed knowledge and skills acquired either. through a Bachelor of Social Work degree, or other accredited social work program with a minimum of three years' practical experience in the social work field. Thus, lack of a university degree or community college diploma in social work would not necessarily disqualify a candidate, if the candidate could demonstrate from his or her record and prior experience in the social work field that he or she had acquired equivalent knowledge and skills. Fu.rthermore. the candidate was expected to meet the balance of the posted minimum qualifications. 'The grievor's application was the only application received from the bargaining unit employees of the Thunder Bay and District Housing Authority. The Employer consequently decided that the search ought to be expanded and it placed an advertisement in the local newspaper .describing the position as follows: CDMMUNITY RELATIONS WORKER $12.79 PER HOUR TO $14.56 PER HOUR (PRESENTLY UNDER REVIEW) Required by the TBDHA to facilitate tenant participation and co-operation in coannunity matters and in resolving tenant problems. Decision making involves the employee recosxnending courses of action which may involve internal programs and/or consultation with other agencies. Performance of duties require the employee to have a good working knowledge of all internal programs of local organizations, pertinent acts, regulations and procedures as well as a thorough understanding of related philosophy developed at the central level. 6 DUTIES: - Interviewing tenants to determine what assistance can be provided towards resolving their problems or helping them become ,intergrated into the community. - Working with various agencies in order to resolve tenant problems. - Meet with tenant associations on a regular basis to help resolve problems. - Encourage tenant participation in the care and maintenace of their particular housing projects. - Consult with members of other professional disciplines (physicians, psychologists) to secure social data of a confidential nature. - Assist residents to relocate to other institutions if necessary after appropriate assessments have been made. - Counsel residents to arrive at realistic decisions whether they can still satisfactorily maintain their apartments. LOCATION '- Thunder Bay with some travel in the District and Province. MINIMUM QUALIFICATIONS - Skills and knowledge required to perform this position at a full working level would normally be acquired through a Degree Program in either the Bachelor of Social Work or other accredited social work programs with a minimum of 3 years practical experience in the social work field. - Above average tact, diplomacy and integrity for interacting with people at all levels is a definite asset. - Excellent cotnnunication and interpersonal skills are essential. - Must have a proven record in being able to get along with individuals and fellow workers. - A valid Ontario Drivers license is essential. Written applications or resumes are to.be received no later than April 25th, 1986 at the office of: Glen R. Mills, C.M.A., F.I.H.M., Manager Thunder Bay District Housing Authority 1111 E. Victoria Avenue Thunder Bay, Ontario, P7C 187 EQUALITY OF OPPORTUNITY FOR EMPLOYMENT The only other document relating to the criteria upon which candidates were assessed is Exhibit #5, which is the job standard dating from 1975. It isapparent that since the job standard was developed, the Employer is seeking a higher level of educational attainment and greater emphasis on the social and cotmnunications skills necessary to perform the expanded duties of the position. COMMUNITY RELATIONS OFFICER Description Employees in this classification are primarily responsible for facilitating tenant participation and cooperation in community matters and in resolving tenant problems. Decision making involves employees in then recommending of courses of action, which may involve internal programs and/or consultation with other agencies. Performance of duties require employees to have a good working knowledge of all internal programs, of local community organizations, pertinent acts, regulations and procedures, as well as a thorough understanding of related philosophy developed at a central level and applied across all portfolios. Staff in this classification will be required to perform some or all of the duties listed below. It is not intended to provide an exhaustive list of duties, but to note typical duties only. Duties Typical duties will include but not be limited to the following: - interviewing tenants to determine what assistance can be provided towards solving their problems or helping them become integrated into the connnunity - working with local community organizations in order to solve tenant problems - meeting with tenant associations to help resolve problems - encouraging tenant participation in care and maintenance of project. Note - key factors for classification a 1. spend a significant portion of time working with tenants or tenant group to help resolve problems or to prevent them from arising, often soliciting help from community organizations. Qualifications - Grade 12, preferably education beyond high school - Approximately 3 years experience in the welfare or social work field - Above average tact, diplomacy and integrity for interacting with people at ail levels - Possession of a valid drivers license and use of an automobile may be required for some positions - Facility in verbal and written communication There were thirty-nine applications received from external candidates in response to the advertisement. Mr. Mills testified that he had ample opportunity to observe the nature of the work performed by the grievor at the Thunder Bay and District Housing Authority. In assessing the grievor's qualifications and ability, the committee drew upon his personal knowledge of the grievor and the nature of her work, the contents of her written application and her performance evaluation dated August 26, 1985. He noted that in her written application the grievor freely admitted that she did not have prior experience in field welfare work. Mr. Mills explained that prior experience in the social work field was considered crucial because the Community Relations Worker position is not closely supervised and yet the incumbent must be able~to act as a coordinator of professional and community resources for her clientele. The committee took into account the courses which the grievor indicated on her application she had completed on her application, but it was clear that she had not yet met the requirements for the conferral of a university degree or community college diploma in social work. The grievor's application and appended list of courses attended at Confederation College read as follows: April 10, 1986 Glen Ri Mills, C.M.A., R.I.H.M., Manager 1111 E. Victoria Avenue Thunder Bay, Ontario P7C 187 Dear Mr. Mills: I am replying to your Promotional Opportunity Bulletin for a Welfare Field Worker 2. While having no specific background in field welfare work, I would like to point out that I have experience dealing with tenants and the general public at'the front counter in this office. Also, I am well aware of the eccentricities and other complex problems that our tenants and clients have that come to our agency to avail themselves of our help and information. Enclosed with this lette,r is a resum6 of related courses 1; have attended at Confederation College in recent years. I appreciate your cooperation. nun April 9, 1986 Marcella M. McLaughlin Clerk Typist II Thunder Bay District Housing Authority Yours truly, Marcella M. McLaughlin Courses attended at Confederation College: January 1982 Basic Communications September 1982 January 1983 Introductory to Psychology Orientation to Agencies September 1983 January 1984 Physiology of Aging Applied Psychology 10 I 6. September 1984 September 1964 January 1985 September 1985 January 1986 Social and Emotional Problems of the Elderly Abnormal Psychology Health, Prevention and Rehabilitation of the Elderly Crisis Counselling Social Service Practises (completed March 1986, not on transcript) Grade attained 'A“ These courses represent 600 hours of classroom study; along with homework e.g., presentations, essays and interviews of other agencies. Grade point average as of December 1985, is 3.33. Mr. Mills described the grievor's job duties as Clerk Typist 2 in a manner that was consistent with the duties set out in the grievor's performance evaluation dated August 26, 1985. as follows: 1) Copy-typing, typing Notices-to-Vacate and leases. 2) Monitoring lease renewal list. 3) Filing. 4) Receiving and balancing cash. 5) Back-up OFIS Terminal Operator 6) Attending front counter inquiries. 7) Answering telephone. 81 Do landlord checks on current applicants. 9) Check all welfare recipients' files on an annual basis to confirm that the correct shelter allowance is being paid. 10) English/French translation. 11) Check credit balances on project tenant unit list. Mr. Mills stated that if the grievor was confronted with an enquiry or problem which fell outside the purview of these responsibilities, she was expected to refer the matter to other personnel at the local housing authority. Mr. Mills stated categorically that the grievor's dealings over the counter with tenants and the general public were neither comparable to nor related to the 11 c work required of a Community'Relations Officer. No other testimony was proffered on behalf of the grievor to contradict this assertion. At p.2 of the grievor's performance appraisal, strengths and areas for improvement are identified: Strengths: Dependable - uses very little sick time. Very ~punctual. Genuine interest in people. Ability to converse in two languages (French A English). Areas for Improvement: More attentive listening and priorizing of work load. Uhen relaying information, do not attempt to go beyond your field of expertise. Sometimes not as diplomatic and/or patient as could be when dealing with the public. Keep personal conversations on non-related Housing Authority business to a minimum. Continued effort needed to involve Ingrid and Coreen in assisting with counter duties. Sometimes more effort needed to make best use of time. Ensure that the points~mentioned in the June 13th memo (copy attached) do not apply to you. Mr. Mills explained that in addition to the selection committee's concern that the grievor lacked the requisite background in social work experience or education, her performance evaluation disclosed that the grievor was deficient in the requirements for tact and diplomacy, considered especially important for the liaison and regulating functions of the Community Relations Worker. On this basis, the Coannittee decided that the grievor lacked the minimum qualifications and ability required for the position of Conniunity Relations Worker and consequently did not grant the grievor an interview. 12 No further evidence was put before the Board by the Employer or rhe'Union on the preliminary issue of the propriety of the screening procedure. The Board is satisfied upon a review of the posting for internal candidates, the advertisement for external candidates and the testimony that the qualifications and criteria for ability to perform the job upon which the grievor was assessed were reasonable and related to the work required of a Community Relations Worker. Furthermore, the Board is satisfied that the selection committee did not seek to impose as a condition precedent,any requirement that an applicant be possessed of a university degree or community college diploma in social work. Indeed, Mr. Mills admitted that the successful incumbent did not have a degree or diploma in social work. Rather the committee was assessing whether the candidate's educational attainments and background experience were sufficiently extensive and relevant to social work so as to demonstrate that the candidate possessed the skills and knowledge to perform the work. The Board is satisfied upon the evidence adduced that the grievor's previous experience was not sufficiently related to nor extensive enough to perform the duties of the position of Community Relations Worker at a full working level. The evidence further indicates that the position demands a greater degree of tact and diplomacy than the grievor has heretofore demonstrated. However. the grievor tr to be c-ended for the initiative she has shown in furthering her education in subjects related to work in the social welfare field. Having found that the evidence substantiates the Employer's decision that the grievor was 13 unqualifieo for the position, the Board finds that there was no obligation upon the Employer to interview the grievor. When chairing a panel of the Board in OPSEU (Walter Borecki) and Ministry of Natural Resources 356182. at pp. 7 and 8, Ms. Swinton observed there that is no necessity to interview unqualified candidates, but furthermore that the Employer may select which of the qualified candidates may be interviewed: Did the employer act improperly, then, in failing to interview the grievor? In conducting a job competition, an employer can not be required to interview all the applicants, regardless of their suitability. When numerous application come forward, as is common in the public service with its large number of employees, questions of efficiency and cost may require the screening of applications. At times, only those meeting the basic qualifications may be considered. Of course, these qualifications must be reasonably related to the job in question. At other times, the pool of apparently qualified applicants may be so large that a ranking of the most qualified will have to occur and only those with the highest scores will be called for an interview Andy further consideration. The ranking again must be reasonable, in the sense that each candidate's qualifications are reasonably evaluated. Failure to interview an employee with greater seniority than the successful candidate may well lead to a grievance, with the senior employee arguing that he is relatively eqpal. The foregoing passage was cited with approval in DPSEU (Balicsl and Ministry of the Environment 42/84, at pp. 9 and 10. In the instant case, it was clear that Mr. Mills was well acquainted with the grievor and the nature of her work experience and his testimony was consistent with the contents of the grievor's performance evaluation dated August 26, 1985 which she signed. No evidence was adduced which contradicted Mr. Mill's assessment of the extent and relevance of the grievor's work experience. Given that the grievor was found not to have satisfied the minimum qualifications, the Board concludes that the Employer acted 14 reasonably and without discrimination in refusing to grant an interview to the grievor. Furthermore, the Board notes that Article 8.04 envisages a competition among candidates as to their respective qualifications and ability to perform the work of the position. Yet, in the instant case, the grievor was the sole internal applicant. Article 8.03 oblfges the Employer to demonstrate that effort was made to fill the position with a local internal employee, but this obligation must be read with and qualified by the requirements of Article 8.04. As such, the Board does not read Article 8.03 as requiring the Employer to award the position to the sole applicant with seniority regardless of whether such applicant can meet the basic qualifications for the position. It has been held in other cases before the Board that the Employer may establish the extent of the job search - see OPSEU (Lavigne) and Ministry of Transport and Communications 561/81. In OPSEU (Oobbie and Clark) and Ministry of Consumer 8 Commercial Relations 131/78, the panel considered Article 4.1 of the collective agreement then in force which set time frames for advertisement of the position within the- public service. The panel concluded at p.8 that there was no express requirement that applications from within the unit must be given first consideration nor was there any requirement that the government refrain from advertising the vacancy to the public. -Article 8.03 is more explicit in conferring some preference in consideration of internal candidates over external candidates in the competition, but the extent of any such preference need not be canvassed in the circumstances of this case wherein the sole internal candidate did not meet the basic qualifications. Had the evidence indicated that the Employer had 15 - I G ! I waived by its conduct the baiic qualifications posted for the position, different considerations could apply. Ih the instant case, the evidence adduced does not give rise to any such enquiry. The grievor is to be comnended for the initf ative shown through taking night courses in job-related subjects. This decision is not meant to suggest that the grievor is not a valuable employee of the . Thunder Bay and DistrictHousing Authority. .' ' In the result, the Board finds that the Employer did not act in breach of Articles 3.01, 8.03 or 8.04 of the collective agreement, or otherwise improperly in conducting the screening procedure it did and .~ .~ in finding that the greivor did not meet the basic qualifications. In the result, the grievance is dismissed. ..'l:, ': ..: ~.. .~ ~~_ ,,' :~ Dated at Kingston. this 29th day Of October; 1907. "I dissent" (Dissent to follow) J. D:McHanus, Member