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HomeMy WebLinkAbout1986-1041.Jensen.89-09-26EMPLOY~S DE LA CO”RONNE 0EL’0NTARI0 COMMISSION DE SElTLEMENT REGLEMENT DES GRIEFS Between: 1041/86 IN TBR HATTER OP AN ARBITRATION Under TBE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TBE GRIEVANCE SETTLEUENT BOARD OPSEU (Jensen) Grievor - and - The Crown in Right of Ontario (Ministry of Skills Development) Employer Before: For the Grievor: POT the Employer: Bearings: E. Ratushny Vice-Chairperson J. Solberg Member M. O'Toole Member P. Lukasiewicz Counsel Gowling, Strathy 6 Henderson Barristers & SOliCitOrS P. Pasieka Counsel Winkler, Filion & Wakely Barristers & Solicitors October 29, 1987 February 18, 1988 December 1, 1988 f; :i DECISION' The Grievor is employed in the Sudbury office of the Apprenticeship Branch of the Ministry of Skills Development. Her position is described as Examination/Administrative Clerk. It is also referred to as "Invigilator" since one of her main responsibilities is to administer the writing of government trade examinations by apprentices following their prescribed periods of apprenticeship. A clerk works under her supervision in carrying out routine administrative tasks and, on occasion, additional part-time clerical staff are hired. Finally, there are three Industrial Training Consultants in the Sudbury office. This position will be referred to as an "ITC". One of the ITC positions in the Sudbury office was vacant and was advertised on June 13, 1986. The Grievor submitted a written application but did not make the short list of candidates who were granted an interview. The failure of the Employer to grant her an interview was surprising since she was an excellent employee who was experienced in the operation of the Sudbury office where she had served faithfully since January of 1974. In her view, she carried out most of the responsibilities of an ITC in her current position although she was not required to do so. Moreover, when she had applied for the same position some seven years earlier she had received an interview. On the face of these circumstances, the Employer's decision to interview external candidates rather than her appears to be unfair to the Grievor.. The position specification for an Examination/ Administrative Clerk describes three basic functions: 1. Administering and invigilating examinations; 2. Performing a variety of clerical duties; and -2- 3. Performing other related duties such as training and providing technical assistance to support staff and performing secretarial functions in the absence of other staff. The position specification for an Industrial Training Consultant describes four basic functions: 1. 2. 3. 4. Thus, Promoting industrial training programs by persuading potential employers to participate; Acting as a consultant to employers in developing training programs (analyzing the skill needs for various positions, identifying specific training needs and training options and drafting appropriate schedules of training); Counselling potential and active trainees and employees in all aspects of apprenticeship; and Performing other related tasks which include many of those carried out by an Examination/Administrative Clerk. while there are areas of overlap, there are -responsibilities and corresponding qualification requirements for an ITC which extend well beyond those for an Examination/ Administrative Clerk. A great deal of evidence was addressed on behalf of the Grievor to demonstrate that she was fully conversant with the role of an ITC, that she performed many of the functions of that position when the consultants were absent from the office and that she felt fully capable of fulfilling this role. For example, she not only answered inquiries but tried to assist prospective apprentices by discussing their career aspirations with them and offering advice. In the office, she would hear what the consultants were saying to clients and felt capable of providing the same counselling. In effect, she claimed to have done everything that consultants do when they are in the office - : - 3_ - with the exception of administering the Progressive Achievement Tests to prospective apprentices. In some areas, she did not have authority to act but would prepare documentation for the approval of a consultant. In addition, she looked after all aspects of testing at the completion of the apprenticeship period. She also was responsible for the administration of the office and the training of temporary clerical staff who worked under her. While there is no doubt that the Grievor did fulfil many of the functions of an ITC in the office, it is also clear that the majority of the functions of an ITC are performed outside of the office. At the present time, each of the three consultants is scheduled to be in the office only one and one-half days per week and, in practice, it works out to less than that. She conceded that she did not perform these out-of-office functions of consultants but assumed that they were similar to the functions which she observed them performing in the office. She considered the vast majority of the work of consultants to be in responding to problems of individual apprentices. She estimated that only 10 to 15% of this time was spent dealing with employers and that this involved mainly providing them with precedents of training programs and contracts. Occasionally, but not even once a month; she thought, they might make contact with guidance counsellors and any extra time would be spent dropping in on potential new employers and leaving their cards. The Grievor testified that when she read the advertisement for the position in question, she found it repetitive and did not really understand it. She considered the requirements of "identifying employers' training needs" and "effectively promoting the concepts of skills training and development programs" to amount to the same thing. She also thought that it would be rare for consultants to do "job . . .f - 4 - analysis" since a number of the trades were regulated by statute so that programs did not have to be developed for them. While there was no limit to the number of "unregulated" trades for which programs could be developed, the Sudbury office dealt with many more "regulated" than "unregulated" trades. Later, she stated that she did not really know what job analysis was. The Grievor did not discuss the advertisement with the consultants in the office or with anyone knowledgeable about the job functions but did show it to a friend who also found it confusing. In general, she did not consider the advertisement to reflect what consultants really did most of the time. Her perception was that the job was more basic and mainly involved responding on a day-to-day basis to practical problems. For example, an apprentice might not have sufficient funds to attend at a trade school so that his attendance there would have to be .re-scheduled. Her perception of the position was based on observing what consultants actually did in the office over a period of fifteen years. On cross-examination she was presented with the job specification for an ITC and stated that this was the first time she had seen it. She conceded that she had not performed many of the functions listed in it. It is apparent from both the job specification and the testimony of Mr. Hudson, who was Manager of Field Services in the Apprenticeship Branch, that the Grievor failed to appreciate some of the most important dimensions of the role of an ITC. These include -the development of job-specific training programs.. While much of the work of the Sudbury office may have been routine, it was the non-routine demands which required on-site attendance and a particular expertise. After an employer has been convinced to participate in an apprenticeship program for the first time, a job analysis would have to be done. This involves breaking down the requirements of the job into simple -5- components and determining what skills and knowledge are required to fulfil1 each of these. Next a program must be developed to ensure that the necessary knowledge and skills are acquired. The program might consist of both academic and practical instruction at a school, instruction at work, practical application to a variety of situations, and other components. The Grievor stated that she had skills and experience in the development of training programs since it was her entire responsibility to train the clerical staff who assisted her in the office. However, Mr. Hudson testified that there are well-documented procedures in field offices for clerks so that no, job analysis or significant training program is required. We consider this experience to be marginal in relation to the qualifications required for an ITC. However, even if the Grievor were fully experienced in every aspect of the role of an ITC, that would not resolve this grievance in her favour. The decision not to grant her an interview was based on a screening process which involved the submission of written applications. The following observations of Ms. Swinton in Borecki and MNR (G.S.B. 356/82) have been quoted with approval by this Board on a number of subsequent occasions: "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 applications 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 - 6 - 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 and 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 equal." (At pp. 7-8) Here, the Grievor was critical not only of the assessment of her application but also the screening process itself. It is, therefore, necessary to consider: 1. The decision to conduct the competition on a province-wide rather than on a local basis; 2. The selection criteria which were established for the screening phase and their relationship to the criteria for the interview stage and the job specification; 3. The procedures followed and weighting given to the various criteria when assessing the written applications: 4. The merits of the Grievor's application in comparison to the successful candidates. Each will be addressed in turn. Steps were taken to fill the Sudbury position together with seven other ITC vacancies throughout Ontario as a result of the removal of a "hiring freeze" by the Government. The other vacancies were in Toronto East, Toronto Central, Hamilton, St. Catherines, Chatham, Sault Ste. Marie and North Bay. In view of the number of vacancies to be filled, the Employer decided to conduct the competition on a province-wide basis.. Applicants would specify the offices for which they wished to be considered. Separate pools of applications were collected for each vacancy ..: -7- I and if an applicant wished to be considered for more than one location, his or her application would be reproduced so that a copy was placed in each pool. Each application was assessed in relation to all of the other applications in the same pool. While the evidence was not perfectly clear in this respect, it indicated that approximately 700 applications were considered involving 475 applicants for the eight positions. Counsel for the Grievor was critical of the competition for treating applicants from all parts of the province equally. He argued that the screening should have occurred regionally for each of the vacancies and should have been more "office specific" by taking into account that the Grievor was familiar with the Sudbury office and the people who worked there. Mr. Hudson was convincing in his testimony that skills in job analysis and counselling were transferable from one subject area to another and that these generic skills were far more important than knowledge of the Sudbury office. In fact, he saw no advantage in the position of ITC to having worked in the Sudbury office. Along the same lines, he considered these skills to be more important than knowledge of the legislation and regulations which would be applied since these could be learned quickly. In view of the large number of vacancies and identical qualifications required for each, the province-wide approach which was adopted provided the greatest likelihood of attracting the best candidates and of treating their applications as objectively as possible. The Grievor did not challenge the accuracy of the position advertisement or the selection criteria as established for the interviews. Both adequately reflect the position specifications. The selection criteria are attached as an appendix to this decision. :-: -8- However, the Grievor did challenge the fairness of the screening criteria. These were the criteria which were established and applied to determine whether an applicant should be granted an interview or rejected. Mr. Hudson was responsible for establishing both the selection criteria for the interviews and the screening criteria for the written applications. The screening criteria were as follows: 1. 2. 3. 4. 5. 6. Experience in Job Analysis; Experience in Developing Training Programs; Knowledge of Act and Regulations; Experience in Occupational Counselling; Public Speaking; Experience in Consulting and Analysis of Ski Employers. 11 Needs of He did not consider items 3 and 5 to be as important as experience in the other four areas and gave them approximately one-half the weight of the others. Counsel for the Grievor demonstrated convincingly that the screening criteria did not accurately reflect the selection criteria in quantitative terms. He pointed out that items 1, 2, 4 and 6 represent 80% of the screening criteria but only 43% of the selection criteria. However, we do not consider it to be necessary for screening criteria to reflect the selection criteria in numerical detail provided they substantially reflect the requirements of the position specification. In most competitions, the screening criteria will not be comprehensive but will constitute a threshold which all potentially successful candidates must meet. They will tend to reflect key qualifications which can be determined from the written applications. :: - 9 - Indeed it would be impossible for the screening criteria completely to reflect the selection criteria in this competition. The fifteen points allocated for "PERSONAL SUITABILITY-Tact, Diplomacy, Judgment" simply cannot be determined from a written application. What is more important in our view is that the screening criteria accurately reflect the qualifications specified in the job advertisement so that a proper written application can be submitted. In this competition, the advertised qualifications were as follows: 1. Considerable experience in job analysis to determine skill training requirements; 2. Experience in developing skills training programs and schedules designed to address identified needs; 3. Knowledge and understanding of the Apprenticeship and Trademen's Qualification Act and Regulations; 4. Demonstrated experience in occupational counselling of individuals interested in skills training and development; 5. Proven public speaking, analytical and report-writing abilities. In addition, willingness to travel and possession of a driver's license were listed in the advertised qualifications but these were not included in the screening criteria since most applicants had failed to refer to them. Fluency in French was also described as an asset but the Grievor testified that she was not fluent in French (only two of the applicants were). It is clear that the screening criteria are very faithful in reflecting the qualifications specified in the job advertisement. In our view, the screening criteria were both reasonable and fair. ;r - 10 - We are more concerned about the fairness of the next aspect of the screening process. This involved reading the written applications and determining on a “Yes-No” basis whether each of the pre-screening criteria had been met. One point would be assigned for each "Yes" except for items 3 and 5 which received approximately one-half the weight of the other criteria. As a result, each candidate was rated on a scale from zero to five. We are not concerned that the threshold for-being granted an interview might vary between the pool of applications for one vacancy and that for another. After all, candidates can only be considered for the vacancies for which they have applied and the object of screening is to reduce the number of interviews to a manageable size. Nor are we concerned about the consistency of the assessment of the applications since they were all assessed by the same person, Mr. Hudson. Moreover, while these assessments were occurring, they were monitored for consistency through spot checks by Ms. Carson. (In view of the magnitude of the competition she had been assigned to co-ordinate all aspects and to ensure fairness to all candidates). What is of concern is the subjectivity involved in Mr. Hudson's assessment of the presence or absence of each qualification from the written application. For example, it was his decision to give one-half weighting to items 3 and 5. He also testified that he tended to be more favourable to women applicants since fewer than 5% of ITCs were women. Furthermore, "Yes" answers to items 1, 2 4~ and 6 were not given equal weight. For example, experience in job analysis in an industrial environment would be given greater weight than such experience in a simple commercial environment such as a supermarket where analysing the functions of cashiers, stock clerks and "baggers" is much simpler. As a result, in some of these situations Mr. Hudson would balance the weights to be given for each item in -’ :i - 11 - order to ensure a fair over-all numerical result on the scale of zero to five. While we are concerned about this element of subjectivity, the evidence indicates that all applicants were subjected to the same type of assessment by the same person. Indeed, it is difficult to see how all subjectivity could have been eliminated in the circumstances of this competition. On balance, we consider the screening criteria to have been applied in a fair and reasonable manner. The Employer conceded that the Grievor had met items 3 and 5 of the screening criteria. However, she was assessed as not satisfying the other four. Her written application consisted of a covering letter, the completed job application form and her personal resum&. Were the negative assessments for criteria 1,2, 4 and 6 fair and reasonable? The first criterion is experience in job analysis. It was pointed out earlier that the Grievor testified that it would be rare for ITCs to engage in job analysis and, later, that she did not really know what job analysis was. There is nothing in her written application to indicate experience in job analysis. The second criterion is experience in developing skills training programs. The Grievor felt that she had met this criterion because she had developed a training program for clerical staff who worked under her supervision. She conceded that she has had no other experience in developing skills training programs. For the reasons given earlier, this simply cannot be assessed as relevant experience for the ITC position. Even if it were, there is no identification in her written application of this experience as involving the development of a skills training program. ;: - 12 - c The fourth criterion is experience in occupational counselling. The Grievor's testimony clearly established that she did have considerable experience in counselling as a result of her taking the initiative to assist people who came to the office. Through observing and listening to the ITCs over the years she was able to do more than merely respond to inquiries. She was also able to encourage people to think about their career aspirations and options and help them to take steps to establish and pursue occupational goals. Unfortunately, none of this experience is reflected in her written application. The closest suggestions of counselling experience are references to answering inquiries and counselling clerical staff. The correct assessment of the Grievor's written application clearly was that she had no counselling experience, even though she had. The sixth criterion is experience in consulting and analysis of skill needs of employers. There is simply no indication in the Grievor's written application that this criterion had been met. It remains to consider the contention of counsel to the Grievor that the successful candidates, Martel and Lefebre, were assessed at a higher level than was warranted by their written applications. A perusal of their applications clearly does not support this contention. Ms. Lefebre was an Employment Counsellor with the Canada Employment and Immigration Commission. Her application clearly indicates experience in job analysis, developing, training programs and occupational counselling. While it does not clearly indicate experience in consulting and analysis of skill needs of employers, it does indicate: Wnployer liaison and development . . . through on-site visits, interviews, and . . . by providing assistance to encourage employers to undertake manpower planning." - 13 - Even if this criterion were treated as not being met, the written application of Ms. Lefebre is demonstrably superior to that of the Grievor . Mr. Martel was employed for ten years as a training technician with Ontario Hydro. His written application clearly reflects experience in job analysis, developing training programs and consulting and analysis of skill needs of employers. His only negative assessment was in relation to occupational counselling. However, the personal resume' which accompanied his application states: "AS a training technician and supervisor I was responsible for monitoring the progress of individuals and counselling them in their development of skills and talents". This reference should have been treated as satisfying the occupational counselling criterion. In otherwords, Mr. Martel's written application clearly did not warrant a lower assessment and was demonstrably superior to that of the Grievor. There is a danger that the detailed analysis and comparison of qualifications of the Grievor with those of others may leave negative impressions of her. We wish, emphatically, to dispel any such notions. Ms. Jensen is a conscientious, industrious and dedicated employee who has demonstrated a willingness to go beyond "the call of duty" in providing service to the ~public. She may have made assumptions about the duties of an ITC or the manner in which this competition would be conducted - 14 - which proved to be inaccurate. However, they are understandable. The grievance is dismissed. DATED at Ottawa, this 26th day of Sept., 1989. E. RATusHNY, vIcE-cHAIRPERsoN "I dissent” (dissent attached) J. SOLESERG, MEMBER Dissent from: Janet Solberg Union Nominee Re: Ministry of Skills and Development and OPSEU Grievance of Jensen (#1041/86) -----------__-___-_-____________________--- Perhaps this is more of an addendum than a dissent. I certainly have no quarrel with the Board’s analysis of the evidence. And though I regret the outcome, I have no quarrel with the Board’s reasoning. But I cannot concur. Surely, it is not good enough for this Ministry to dismiss an employee’s capacities merely with reference to a written application. Is that really how good labour relations is practised? Or how a fair selection process is furthered? On the basis of one’s skill in writing a resume? It’s an absurd proposition. And surely when a job vacancy occurs, human imagination is capable of devising a posting procedure that gives come precedence to the employees already working in that very location. After all, these employees have every right to expect that their long and dedicated effort will one day be accorded some recognition when promotions arise. Hiding behind the veil of bureaucratic methods and explanations is not good enough. Failure to grant an interview in this case was insulting and demeaning and unnecessary. I say it again. I cannot concur. To to a process which showed remarkably respect to the employee involved. do so would lend legitimacy little sensi tivity or APPENDIX CARDIDATE hAME CGMPETITIOK NO. -- IRDUSTRIAL TRAINING CONSULTANT - IT0 2 SELECTION CRITERIA KNOWLEDGE A. Programs - Futures, TIBI B. Legislation Act and Regulations C. Role of CAATs, Federal Government, Employer/Employee EXPERIENCE A. Industrial/Vocational Training/Counselling B. Develop training programs C. Analyzing skills needs D. Program promotion COlWWlCATION A. Oral - Public speaking B. written SKILLS A. Promotion B. Consulting - analysis, negotiating C. Counselling - PERSONAL SUITABILITY - Tact, Diplomacy, Judgement 10 25 25 25 15 - TOTAL 100 MISCELLANEOUS A. Willingness to travel B. Valid drivers license C. Willing to use Private Motor Vehicle on Government Business ;. .,..