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HomeMy WebLinkAbout1986-0897.Smith.89-01-23EMPLOY~SOEU CO”RONNE OE“ONT&QIO CQMMISSION DE SEITLEMENT REGLEMENT DES GRIEFS 0897186 IN THE MATTER OF AN ARBITRATION Between: Before: For the Grievor: For the Employer: HEARTNGS : Under THE CROW?! FMPLCYEES COLLECTIVE BARGATNING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Philip Smith) Grievor! - and - The Crown in Right of Ontario CEfinistry of Corvxtional Services) Employer Anne Barrett Vice Chairperson J. Solberg Member D.C. Montrose Member Helen Sharpe Counsel Gowling & Henderson Barristers S Solicitors C. Dassios Counsel Gowling & Henderson Barristers R Solicitors Joe Whibbs Regional Personnel Administrator Kinistry of Correctional Services November 9th, 1987 January lRth, 198R September 30th, 1988 r--- DECISION - Mr. Smith grieves that he was not awarded the job of Senior Industrial Officer - Tailor Shop as a result of a job competition in August 1986. Mrs. G. Pinan was awarded the job and she attended and participated at the hearing. Job competitions are governed by Article 4.3 of the collective agreement tihich reads 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." The Union alleges that Mr. Smith was relatively equal in qualifications ability and experience to Mrs. Finan and that due to his greater seniority he should have been awarded the job. Millbrook is a maximum security correctional facility and has four industrial shops in which inmates are taught job skills and goods are produced. In the tailor shop 704 of all of the clothing needs for the entire Ministry of Correctional Services are produced. About 20 inmates work in the tailor shop supervised by two staff members: the Senior Industrial Officer and an Industrial Officer. The grievor, Mr. Smith, was the Industrial Officer in the tailor shop for about 8 years prior to this competition. During those eight years one Mr. Jones was the Senior Industrial Officer. In March 1986 it came to the attention of management that a large number of defective goods had been produced by the tailor shop and both Mr. Jones and Mr. Smith were called to account. Mr. Jones, as the Senior Industrial Officer, took the 2 brunt of the criticism for the defective material,and apparently went on long-term sick leave immediately after the criticism and never returned. Eventually the job was declared vacant in June, posted in July, and filled in August. About one week after Mr. Jones' departure, Mrs. Finan was placed in the job of acting Senior Industrial Officer. The grievor was upset about this because in the past whenever Mr. Jones was absent he was given the Senior acting job. Mrs. Finan was a Senior Duty Officer on the correctional side of the facility with responsibilities for supervising other correctional officers as well as inmates. The grievor thought that Mrs. Finan had no experience in a tailoring shop nor any other industrial shop and was not qualified to take over as acting Senior Industrial Officer. The grievor felt that he was being punished for the problems in the tailor shop which were essentially the responsibility of Mr. Jones. In fact Mrs. Finan had experience in the tailor shop at another correctional institution, some high school courses in sewing and sewing experience in her personal life and through volunteer work. Mr. Smith filed a grievance over this "acting" appointment as a result of which the Superintendent of the facility offered Mr, Smith the job for June and July. just prior to the competition. Mr. Smith refused this offer because it would have entailed withdrawing his grievance, which he was not prepared to do. The competition consisted of a written exam and an oral 3 interview with additional marks being given for experience criteria. 60% Of the marks were assigned to the oral interview, with 20% for the written examination and 20% for experience. Mr. Smith and Mrs. Finan both scored 14 on the written examination which was mainly related to tailoring skills and production methods. The oral interview was primarily geared to assessing supervisory and communication skills and abilities. .On this test Mrs. Finan scored 49.1 to Ur. Smith's 37.9. Prior to the examination the selection committee drew up a list of experience criteria and assigned marks to certain kinds of experience. Mrs. Finan earned top marks of 20 for two or more years experience as a Senior Duty Officer. Mr. Smith achieved 13 marks for over 2 years working as an Industrial Officer in the tailor shop and for working in the capacity of Acting Senior Industrial Officer for 16 weeks. On the evidence it appeared that Mr. Smith had always replaced Mr. Jones as acting Senior Industrial Officer while he was on vacations or ill during the 0 years he was in the shop. There were two periods when Mr. Smith covered for Hr. Jones for 8 weeks at a time. This aspect of the marking scheme was not explored with the management witness, Mr. Cooney, at the hearing but it would appear that Mr. Smith should have achieved 15 marks instead of 13 for experience. This adjustment would not have raised Mr. Smith'5 score sufficiently above the overall 64.9% that he achieved in order to make it appreciably closer to Mrs. Finan's overall 83.7%. The Selection Committee also reviewed performance 4 appraisals for both the grievor and the incumbent. Mrs. Finan's appraisals were uniformly very good. Mr. Smith's were good but several areas were noted: "needs improvement" It was not seriously contended that the selection criteria were inappropriate nor that the interviews and written test were other than fair, relevant and job-related. At the hearing the Union sought to introduce evidence of Mrs. Finan's performance on the job after the competition in order to demonstrate that she did not have the requisite abilities at the time of the competition. This evidence was introduced against the objections of the employer who asserted that only the evidence available'to the selection board should be considered by this board when reviewing that decision. Normally we would not hear evidence of events occurring after the competition in a hearing to determine whether a selection committee made the right.decision on the facts properly before it at the time of making its decision. However in this case the grievor alleged that the competition was really a sham in that the result was pre-determined in Mrs. Finan's favour. He testified that on the day of the test he saw Mrs. Finan studying a page in a sewing machine manual which was the basis of one of the test questions. lie also noted that a relief assistant had been sent in .to the shop about 45 minutes before Mrs. Finan’s test, thus giving her an unfair opportunity to study during work hours. It was Mr. Smith's position that Mrs. Finan did not have the requisite skills or ability in tailoring to manage production 5 or oversee inmate instruction and quality control. It was asserted on his behalf that evidence of her job performance after she was granted the job would prove these allegations. We admitted the evidence and this is what it revealed: For one year after Mrs. Finan's appointment, Mr. Smith observed her carefully and made notes of what he considered to be errors and omissions on Mrs. Finan's part. These notes were made in private and presented at the hearing as Exhibit 7. There were three main areas of criticism of Mrs. Finan's management of the tailor shop. First there were instances of lax security which Mr. Smith feels is the first and overriding concern in the tailor shop. Secondly, there were examples of inefficient or incorrect work procedures; and thirdly, poor or improper inmate relations. This evidence backfired on the grievor however, because under cross-examination and through the evidence of then Deputy Superintendent, Mr. Cooney, it was revealed that production in the tailor shop has doubled since Mrs. Finan took over and the shop has gone from operating at a loss to operating at a continually increasing profit. Inmate morale has improved substantially. and there have been no security problems. MI. Cooney reviewed the list of the grievor's complaints about Mrs. Pinan and found no problem or difficulty with her handling of the various situations ,described therein. The job descriptions for Industrial Officer-Tailor Shop and Senior Industrial Officer-Tailor Shop differ mainly in that 60% of the Senior Officer's job is to manage the shop and 6 production, while 70% of the Industrial Officer's job is to supervise inmates. Mr. Cooney testified that supervisory and management skills were the key qualifications they were looking for and Mrs. Finan was far superior in that area in that she had 4 years experience as a Senior Duty Officer. had taken courses relevant to supervision, and had 5 years experience as an office manager prior to her employment by the Ministry. Mr. Smith's only experience in a management capacity was when he performed the acting Senior Industrial Officer’s job in the absence of hr. Jones. Essentially the Union asserts that it was not so much Mrs. Finan ' s management of the shop that caused the dramatic turn-around in productivity and inmate morale: but the absence of Mr. Jones whose management style had a negative effect on all aspects of the shop. The Union asserts that Mr. Smith was tarred with the same brush as Mr. Jones but could have, and would have, made' the appropriate changes if he had been given a chance to manage the shop. That proposition is speculative of course, but we can surmise from Mr. Smith's criticisms of Mrs. Finan that he is somewhat resistant to change and would have continued the long-standing ' emphasis on security and discipline over productivity and inmate morale. We have reviewed the jurisprudence of this Board relating to job competitions, in particular Marek 414183; Poole 2508187: Strazds 88183; McGarrell 687/81: Gavel 145/SO; Cross 339/61; and Worsley 347/Sl. 7 In this case we do not find that the grievor has shown himself to be relatively equal to the incumbent in order that his greater seniority should be considered. We do not find any evidence of bias or lack of good faith on the part of the selection committee, nor do we find that the decision of the selection committee was wrong. Accordingly the grievance is dismissed. .DATED at Toronto this 23rd day of ~anuaq. 1989'. A7 AWWEBABBE u . IPf= Vice-Chairperson (Addendum attach \ J. SOLBBRG - Member ‘) ADDENDUM Given the testimony, documentary evidence and language of the collective agreement, I cannot disagree with the Board's decision. But it all show so clearly the unhappy situation which can arise when job vacancies are filled by using a competitive process. The fact is that the successful applicant, Mrs. Finnan, had occupied the vacant position in an acting capacity for several months prior to the competition. It is surely not surprising then that she won the job posting. For it was, in no SlW.11 measure, her on-the-job experience which gave her the qualifications and ability to perform the required duties. That kind of process seems to me to do little for amicable and cooperative labour relations. But more important, it does absolutely nothing to acknowledge the commitment, loyalty and hard work of long-service employees. In the end, it puts far too much emphasis on the employer's discretion and far too little on an employee's years of contribution to the workplace. J. Solberg Member