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HomeMy WebLinkAbout1986-1115.Fu.89-09-29IN THE MATTER OF AN ARBITRATION Under THE CROWN ENPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Wei Fu) Grievor - and - The Crown in Right of Ontario (Ministry of Citizenship) Employer Before: For the Grievor: For the Employer: Hearings: T.H. Wilson Vice-Chairperson I. Freedman Melube r W. Lobraico Member ~J. Mosher Counsel Gowling, Strathy & Henderson Barristers & Solicitors L. McIntosh Law Officer Crown Law Office, Civil Ministry of the Attorney General May 11, 1988 August 22, 1?888 September 29, 1988 October 6, 1988 December 8, 1988 The grievor applied on a job posting. He scored 6.5 out of 14 but he needed 8 to receive an interview. He grieves against that denial of an interview. The Board held five days of hearing. The first'day of hearing was adjourned when the Board learned that the incumbents had not been given proper notice. Proper notice was subsequently given and those incumbents who attended were given full opportunity to participate. The job competition was for a Race Relations Consultant (Human Rights Commission Officer 2) with the Race Relations Directorate. In Toronto, four positions were available and there were 700 applicants (Job Competition L8 204/85-86). The employer granted 50' interviews. The relevant provision of the collective agreement is section 4.3 which provides 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 em relatively equal length of continuous service shall be a consideration." The union's principal argument is that the criteria that were used by the Ministry were improperly applied to the grievor. The grievor's seniority date is May 1974. The applicable standards of review in such a situation were set out in Bore&i and Ninistrv of Natural Resources (G.S.B. 256/82). In that case, where as in our case, - 2 - ;. the grievor had been denied an interview the Board ruled at pages 2- 3: . "First, the Board should determine whether the employer acted improperly in denying the grievor an interview with the onus on the employer to show that it acted properly. If it acted properly, the case would be over. If it acted improperly, the Board would have to consider tbe relative equality of the candidates and the appropriate remedy." At pages 7-8 the Board states: "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 some screening of applications. At times, only those meeting the basic qualifications may be considered. Of course, these qualifications must be reasonably related to tbe job in question. At other times, the pool of apparently qualified applicants may be so large that a ranking of tbe 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 tbat each candidate's qualifications are reasonably evaluated. Failure to interview an employee wi cl2 greater seniority than the successful candidate may well lead to a grievance, with the senior employee arguing tbac he is relatively egual." In that particular case, tbe Board concluded "that tbe employer acted reasonably in deciding not to call the grievor for an interview". In the present case in reference to the two step determination outlined in Borecki, the parties all agreed that the hearing should not be bifurcated but that all evidence should be received. The criteria for grading applications on tbe job posting were set out in a Memorandum dated April 29, 1986 from Sam Ifejika; Manager of Operations to Dan WacIntyre, Commissioner for Race Relations. It is set out on pages 3 and 4 of this Decision: Ontario Commlaslon - 3 _ Human Rights ontarlenne de8 Commlsslon droll8 de la porsonne RlUX Dwlslon Relations oes rapporls Dlvc+lon enIre Les rfices April 29, 1986 MEMOItANDUM,TO: Dan McIntyre Commissioner for Race Relations PROM: Sam Ifejika M~f~uger of Operations RE: CRITERIA FOR SCREENING OF APPLICATIONS I nm ~forwarding for your review and approval, the scoring system which the supcr&iors agreed on for the screening of the applications for the position of Race Relations Consultant. The previous IO-point system was judged inadequate in light of the new job description. I. ESSENTIAL SKILLS (10) Ten essential skills were identified and scored as follows: Employment Equity (2) 1) Evidence that the candidate has knowlcd e awareness or understtrlldin& of emplo?menL equity %iues (1) ---F 2) Consultinp experience in employment equity, (1) Research and Report Writing(Z) 4) General research and analytical skills (1) 4) Research and/or report-writing in race relations (1) IrlsIiItrIion/1l I~x~wricrw2 (2) ,.. 5) Experiuncc in wcrrhing with wy of the nmjor institulions of acrciely sucli US cducution. the crinliruil justlce system, business and industry, or with community agencies, such as the United “’ Way, Children’s Aid Society, etc. (1) - 4- -2- 6) Leadership role or progressive responsibilities in an institution or agency (1) Community Experience (2) 7) Experience in working with community groups, racial and Y I.> ethnic minorities (1) 8) Leadership role in community organi+ations (1) hlcdiation, conciliution experience or skill W tipericncc in conflict resoiution or dispute mediation In a community or institutionlrl setting or formnl trclinlng in conflict rusolution (I) Orgenieing skills lb) Experience in organiring conferences, seminars or workshops ,.I (1) IL. ADDITIONAL SKILLS (1) The following additional skills were considered useful for a candidate LO hnve: I’rcrscntrrtion/Truining exper’ience - 11) Experience in making formal presentations to a group and/or in the design and delivery of trnining to others (1) Plrtnning/Policy experience 12) Practical experience in planning end policy development or specific forrnrtl training in planning nad policy development (1) Investigation skills l . w 13) Experiences in investigation. From past interviews, police officers and lawyers hnve usually scored n point in this area (3) Educe tion 1-t) Degree from a university or diploma from a community college (1) :_: ^ _., - 5 - 5 I The screening process was done by three different persons: Eric Wist, Ray Chopra and Helen Griffin. Wist and Chopra at the beginning selected 30 names at random as a sample, scored them, and then compared their results. By chance the grievor’s application was in that group and both scored the grievor independently at 6.5. Wei Pu is employed by the Ministry of the Solicitor General as a Security Officer 2 (a peace officer). He testified that it is Management policy to resolve any crisis “without making waves.” He was assigned to Osgoode Hall in Toronto from 1974 to 1985 when he was transferred to another location in Toronto and then subsequently returned to Osgoode~Hall. The grievor who as his evidence disclosed is active in the Chinese community in Toronto was encouraged by members of that community to apply for one of the new positions with the Human Rights Commission.. He wrote to Dan MacIntyre, Commissioner for Race Relations on January 5, 1986 enclosing a completed application for employment and a resume. He later saw the competition Notice on The Topical and telephoned about it. He then sent in an updated resume. The dispute over the denial of an interview for the grievor turned on certain individual parts of the criteria (Exhibit 17) for which the grievor received no or only half credit. The first of these is Employment Equity. The grievor received no credit in this area which in total was worth a potential 2 points. In his view, he should have received full credit. On April 21, 1986, he had written to Joan Pinnie, Senior Staffing Officer with respect to the competition and had included in that letter the following: - 6 - II . . . *Employment Equity" gives some new hope to the minority communities. 'It is a progressive legislative proposal. The best part of it is to put the onus to the employer. However, it appears to me that unless there is a powerful mechanism to enforce it, it may end up as another piece of the law which is made to be seen, but not to be respected." On his current resume, he had included the following: E) Self Education: “A great deal of my time has been spent in studying the labour and human rights legislations as well as their latest developments. I am particularly interested in the recent Federal and Provincial legislative proposals on employment equity". He testified that at the time, there was a discussion paper at the federal level which was being circulated among interested groups including the Chinese Community. He was familiar with it. At the provincial level, there was nothing in writing.' I note that the Federal Parliament passed the Employment Equity Act (1986 c.31) during this time period. Furthermore, the grievor relied on the reference in his resume to the fact that he was a Columnist: ("I write a weekly commentary for a leading Chinese newspaper in North America)." In cross-examination, Ministry Counsel put to the grievor that someone reading the resume and his letter would think he had the idea that' there was in fact a provincial legislative proposal. The grievor felt that was a matter of interpretation of what "proposal" means. Fu himself believed that strong legislation is necessary and secondly persuading employers to do things voluntarily. He had heard from human rights activists that the province was planning legislation. The grievor felt that he had some ; . . - 7 - ? experience in the area as well because he gave consultations to people and wrote articles and advised fellow employees. Eric Wist, a Regional Supervisor of the Race Relations Directorate testified for the Ministry. One of the areas that he identified as part of the mandate of the position of race relations consultant is employment equity. This involves providing consultative services. Information is provided to employers for example helping them to audit the work place, training management and employment equity networks. It is a work place process or planning process to identify and remove discriminatory barriers or intentional or unintentional discriminatory practices. It uses positive measures to ensure the equal participation of a target group and ensure its equal participation. Primarily they focus on racial groups. Wist testified with respect to the references in the grievor's resume and letter that the definition is not anchored to -any experience undertaken in a professional or voluntary capacity. He stated that it referred only to interest. He further testified that the grievor should not have restricted his comments to legislative proposals. It in fact refers to work practice. There can be voluntary programs. In his opinion, the grievor's statements suggested that there were provincial legislative proposals in the works when in fact there were not. Finally, Wist summarized his testimony as follows: "Looking at a definition that doesn't anchor it to experience or activity and simply states an interest end in cw separate cases is wrong about the nature of employment equity didn't score a point. " . . - 8 - There are in my opinion serious problems with the reasonableness of this decision. Reasonable people may disagree about the best approach to employment equity but the grievor's identification of it as a legislative proposal was not a grounds for scoring zero; in fact the federal government has gone the legislative route. It was not correct to assume or conclude that the grievor had no "Knowledue, awareness or understanding of employment equity issues." Quite the contrary - given that this was the preliminary screening stage based solely on documents an applicant who gave ~JY evidence of meeting one of the criteria should have been given some credit until at least at the interview stage it was demonstrated that such evidence was false. Furthermore, it certainly ought to have been irrelevant whether Wist disagreed with the grievor's apparent preference for a legislative approach to employment equity. I would give the grievor a l/2 point for that part. I do however, agree with the tfinistry that the grievor's documents do not show specifically any "consulting experience & emlovment equf." The next area in dispute was Research and Reuort Writing being Items 3) General research and analytical skills, and h) research and/or report-writing in race relations. The grievor got l/2 point out of a potential 2. The grievor has a Bachelor of Arts degree in Political Science from Chengchi University in Taipei, Taiwan and a Master of Arts degree in Political Science from Dalhousie University in Halifax, Nova Scotia. He also has taken two community college courses at Humber College's Centre of Labour Studies, one in Labour Law and the other in Work, Racism and Labour. As well, the grievor had taken several I -.. - 9 - p workshops in the labour movement and Minority Community including the Ontario Federation of Labour Anti-Racism Instructor Training. He testified that these all require research and report writing in race relations. He also relied on then fact that he had listed himself as a columnist and a part-time reporter. In cross-examination, he was asked how the evaluator could tell what his reporting related to since it could be on movies or about products. The grievor replied that if it had been irrelevant such as about fashion he would not have included it and in any event it was known at the Race Relations Secretariat. Eric Wist explained what was intended in the research and report writing. The position includes priority briefing notes for the Minister's office, case reports, situational reports on activities and more sustained documents on planning in the upcoming year. The onus here is on report writing skills. He testified that #3 on Exhibit 17 would have been clearer if it had included report writing. As an example he stated that someone might have written a study on access to government.services. Any kind of report would get a candidate a point. Also t4 should have read specifically report in race relations. He did not give credit for report writing needed to graduate from university since education was computed in item 14 and theses writing was not suitable for situation report writing. The three markers had discussed this among themselves. He did not know what kind of column the grievor wrote in the Chinese paper but still gave a l/2 point for it under #3. In cross-examination, counsel for the union drew to this witness's attention that the advertisement in Topical (April 4, 1986) stated under gualifications: "excellent analytical, planning, orgenizational and .. . -lO- .s communication skills usually obtained through formal training." It makes no mention of report writing. In Wist's view communication skills speaks to writing skills but he agreed that the Topical advertisement should have been more specific. It is interesting to note here that Wist acknowledges that the Topical makes no specific reference to'report writing that #3 in Exhibit 17 also failed to mention it and that 84 should have been conjunctive only instead of being in the alternative. I also note that even though the applicant would not be alerted to the need to highlight any report writing experience, the grievor's resume in fact showed extensive educational and workshop knowledge and practice in race relations as well as newspaper writing as a columnist and part-time reporter. Furthermore, his correspondence demonstrated fluency in written English. It is important to note that Wist’s evaluation of other applicants he assumed certain aspects of various jobs such as that a law clerk wrote reports, but gave no credit to the grievor for writing on race relations in a Chinese language newspaper when the grievor's resume was replete with courses and participation in race relations activities. I give the grievor an additional l/2 point in this area. The grievor contended that he should have credit for #6 "leadership role on progressive responsibilities in an institution or agency. '. The grievor referred to his former employment as a lieutenant in the Military Police in Taiwan. He testified that since Taiwan was under military rule, as a military police lieutenant he provided leadership in the community. Also he had been a foreman at the Royal York Hotel and had provided leadership in his local union as the secretary, a steward and a co-ordinator of the Human Rights Committee. . r - 11 - F? Eric Wist testified that they were looking for a person with a directing role in an association or responsibility for planning. That may involve z a director of a family services association, or a school trustee. There were a number of municipal politicians with that type of experience who applied. The grievor did get credit under t5 "Experience in working with any of the major institutions of society such as education, the criminal justice system, business and industry, or with community agencies, etc." for his work with the union. It is interesting to note, however, that t5 did not involve any leadership component. The grievor therefore was not receiving any credit for the leadership aspects of his experience as a police lieutenant, a foreman or a local union officer. Although these functions may not be as sophisticated as some other positions Wist had in mind, they did in fact demonstrate leadership experience and therefore could easily have earned the grievor a half point. With respect to #8 leadership role in community organizations, the grievor in testimony claimed that he was a leader in the Chinese community. Without setting out the details of his oral testimony, it is fair to say that the resume itself does not highlight or set out this aspect of his experience. The leadership roles actually indicated are those for which I have given him a half point under Item 6. At an interview stage, however, he would not of course be restricted to what is set out in the resume. That brings us to the next area of dispute namely, mediation, conciliation exnerience or skill 9) Experience in conflict resolution or dispute mediation in a community or institutional setting or formal - 12 - training conflict resolution." The grievor argues strenuously that his experience as a foreman and as a local union official on the negotiating team, as a steward and as a co-ordinator of the Human Rights Committee of the union local demonstrated experience in the mediation and conciliation field. Even as an Ontario Security Officer he feels his experience includes conciliating situations. I have no doubt in finding that his labour experience should attract credit ins this area. Even an elementary experience or knowledge of modem labour relations would inform an evaluator that conciliation and mediation are at the heart of labour relations. Eric Wist suggested that a neutral conciliation role was looked for. The evidence relating to other candidates does not support that and in any event the union office itself inherently involves some degree of neutrality between various individuals and factions. Furthermore the definition in Exhibit 17 does not stipulate neutrality nor need it do so. Almost no one starts his career as a neutral in the labour relations field or indeed in almost any field. I would be prepared to give the grievor from l/2 point to a full point for this part. The last area in dispute is #12 "Practical experience in planning and policy development or specific formal training in planning and policy development." The grievor relied principally upon his formal education in Political Science. However, because he did not in his resume elaborate on exactly how much if any of his university courses in Political Science focused on planning and policy development as distinguished from other areas falling within political science, I cannot fault the evaluator for not giving credit here. Again, this is a - 13 - $z matter to be dealt with in the interview phase if the grievor feels he has more qualifications. In summary then, I have easily found another 2 to 2 l/2 points on the documentation which brings the grievor's score to 8 l/2 - 9 and well within the range of entitlement to an interview. As the case law indicates the Ministry has no obligation to give an oral interview to every applicant to a position posting. However, because of the possibility of misunderstanding the significance of experience or training set out in an applicant's resume, it is, fairer and more reliable to err on the side of liberalism in interpreting an applicant's credentials. This is especially true when the qualities being sought are subject to judgment calls such as those required in the subject competition. It is not my intention to set out at this point all the other applicants whose resumes were filed in the arbitration but I note, for .example, that applicant #42, was credited by Wist with experience and skills on the bases of having been the Executive Director of a Student Union while the grievor got none for being a foreman or a union local leader. Without disagreeing with credit given to candidate #42 I find it unacceptable that then no leadership credit was given the grievor for his experience as a foreman, a police lieutenant and a local union officer. This kind of error could be avoided by giving the benefit of the doubt to an applicant when assessing documentary evidence. The union challenged the 8 point requirement for an interview as artificial. It also criticized the decision of management in this part of the competition to search for generic skills rather than to ‘t - 14 - ," emphasize race relations experience. Inasmuch as I have found that the grievor reaches a point score that entitles him to an interview, hit is not actually necessary to decide whether the emphasis on generic skills was proper or whether the 8 point requirement was arbitrary. Hr. Wist himself in testimony expressed doubt about the esphasis on qeueric skills. Waving now qualified for an interview, no doubt the grievor will. have an opportunity to demonstrate his race relations gualifications. Having reach an 8 l/2 - 9 point score, on the screening process, the grievor has within the Winistry’s own criteria sufficiently demonstrated relative equality for an interview phase of the competition. Accordingly, I direct the competition to be reopened and the grievor granted an interview. The Board will remain seised pending the completion of its directive. DA!l’ED at Toronto, Ontario this T.H. Wilson I. Freedman Hemher “1 dissent” (dissent attached) W. Lobraico Member . Re: C.6.B. 11151%6 Wei Fu ‘. . . With respect, I must disagree with the .majority award on this grievance. The grievor is a civil servant with over 15 years service and should know that job applicat- ions and resumes must clearly state experience and qual- ifications in terms related to the position requirements. This was not done clearly and he cannot expect Ministry officials to deliberate extensively over each application when there are 7G0 appiicants. The Ministry may have made a subjective judgement, which in the light of testimony at the hearing, wasnot entirely accurate but there was no evidence of bad iai,th..Faced with an overwhelming number of applicants it was necess-. ary to be a little ruthless in the initial screening and the grievor should have-known this was a critical stage. Granting the grievor an interview now, is in my respect- f ul opinion “second guessing” based on information which the selection board did not clearly have at the initial screening step. An unsuccessful interview will on’ly result in another grievance. As the grievor had no rights to an interview under the collective agreement 1 would have dismissed the grievance.