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HomeMy WebLinkAbout1986-1135.Sikand.89-10-18EMPLOY~S DE LA CO”RONNE oE“o,wAmJ CQMMISSION DE REGLEMENT DESGRIEFS IN TEE MATTER OF AN ARBITRATION Under TEE CROWN EXPLOYEES COLLECTIVE BARGAINING ACT “i Between: u Before TEE GRIEVANCE SETTLEMENT BOARD OPSEU (S. Sikand) -.. - and - The Crown in Right of Ontario (Ministry of Transportation) Grievor Employer Before: . J. Forbes-Roberts Vice-Chairperson I. Thomson Membe:r L. Turtle Member For the Grievor: M. Cornish Counsel Cornish & Associates Barristers and Solicitors For the Employer: K. Cribbie Staff Relations Advisor Human Resources Branch Ministry of Transportation Hearing: May 17, 1988 : 2 DECISION This case concerns two (2) job competition grievances in the Ministry of Transportation and Communication (“I4.T.C.“) at it’s Dovnsviev location. That location is divided into three (31 main sections, Records Search, Licencing Assistance, and Issuing and Services the latter of vhich is composed of Prorate and Vehicle Registration Services (“V.R.S.1. In the late spring of 1988 there &as one (1) Group Leader vacancy advertised in Prorate and one in VRS. The grievor posted for both positions but was the successful bidder for neither. It vas the Employer’s uncontradicted evidence that the tvo (2) positions in question were not “underfills”, but vere rather promotions. An underfill contemplates a situation in vhich the Employer does not expect to find a candidate(s) capable of performing the full range of required duties vithout a period of Q,f&&~g (emphasis added). Underfills must be advertised as such and usually do not attract the same remuneration as a promotion. Promotions are expected to be filled by candidates capable of performing the full range of required duties folloving a reason- able period of oriwtatLpn only (emphasis added). Both successful candidates vere notified of these proceed- ings and apprised of their rights to fully participate. The relevant portion of the collective agreement states as follovs: 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 was not disputed that the grievor had appreciably more seniority than the two (2) successful candidates. Because the requirements of the tvo (2) posted jobs vere very similar and many of the applications vere overlapping a decision vas made to consolidate the intervievs for both poei- tions into one (1). Interview questions were apportioned between the Prorate and VRS functions. This decision is not in ti0f itself crlticized. Hovever it vas the Union’s position that from that point forvard the selection procedure offended basic criteria as set out in Grievance Settlement Board (*G.S.B.“)ju- risprudence. The effence given vas so grave as to negate the entire selection procedure and the grievor should be awarded one of the jobs; In the alternative the competition(s) should be ordered re-run. 3 Over the course of the grievor’s evidence-in-chief and .cross-examination it became clear that a separate issue stood central in her complaint. This issue concerned certain wcross training” opportunities which had been given to the succussful candidates prior to the postings. The grievor had often request- ed such opportunities but had been given very fev. It was the grievor’s repeated contention that this direct experience which had been given to the incumbent’ and denied to her gave the former an unfair advantage in the instant competitions. Indeed in cross-examination the grievor vent so far as to admit that because of these denied opportunities she could not perform the required duties of the posted jobs without trainin_s. (emphasis added). The ultimate effect of this statement will be examined later in the avard. The G.S.B.‘s jurisprudence is well settled regarding the criteria for a proper competition selection process. They are succinctly itemised by professor Samuels in &&&and and DeGrandig (G.S.B 506/81, 507/81, 609/81, 691/81). At page 25 he states : The jurisprudence of this Board has established various criteria by which to judge a selection process: 1. Candidates must be evaluated on all the relevant qualifications for the job as set out in the Posi- tion Specification. 2. The various methods used to assess the candidates should address these relevant qualifications insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifi- cations. 3. Irrelevant factors should not be considered. 4. All members of a selection committee should review the personnel files of all the applicants. 5. The applicants’ supervisors should be asked for their evaluations of the applicants. 6. Information should be accumulated in a systematic way concerning all the applicants.... ‘These six (6) criteria formulate the paradigm of perfection. However in applying these criteria we also bear in mind Arbitra- tor Swan’s comments in m (G.S.B. 457/85): 4 The Union vas able to point to a number of flaws in the selection process in this case, but as counsel for the Employer rightly observed, it is possible to pick holes in almost any process run by mere mortal human beings. (at page 9) We interpret Arbitrator Swan’s criteria in ~t*c~~st~~~;eth~tfo~~~~~ ;;,e certain success tion to I one may be required to look behind the prescrip- ascertain the actual ill can one determine if failure to meant to be cured. Only then Precisely comply with each step vi.ll fatally flaw the entire process. ?. Ct.4 The evidence heard before this Boardclearly revealed that the selection panel in the instant case ran afoul of criteria #4 and criteria li5. Were these truly grievances grounded in article 4.3 of the collective agreement the panel’s failure to review the grievor’s personnel file and to consult with her supervisors might well be sufficient to nullify the results of the competi- tion. In the face of a settled jurisprudential blueprint the panel chose to cut corners. But is the grievor actually complaining about the selection process? Is the grievor saying that she was not awarded one (1) of the tvo (2) available positions because her n...qualifications and ability to perform the required duties.” were not given fair and proper consideration? Is the grievor alleging that the improprieties or inequities in the aelection process form the basis of her complaint? The grievor was moat candid in her testimony. As earlier mentioned she was blunt on the point that she could not perform either of the posted jobs vi thout training. The grievor had repeatedly requested, demanded and done everything short of begged for the training opportunities vhich would allow her to compete on an equal footing with other employees. Needless to say she vas extremely frustrated that these opportunities rarely came her way. Nevertheless the grievor’ a complaint is not that the process produced an incorrect result in the competitions, but rather that the Employer’s failure to provide training opportunities prevent- ed her from acquiring the necessary tools to fairly compete. In M (aupra) Professor Swan vent on to state: . ..vhile we may not be happy with everything that happened in the course of the aelection, we have come to the con- clusion that the process as a whole was note unfair nor was it calculated to lead to an unfair result. We have also concluded that on a aomevhat larger body of evidence plac- ed be.fore us at the hearing, and on an objective basis Ms. P.vaa in fact better qualified for the specific job at iasue then vaa the grievor. (at page 13) In her cross-examination the instant grievor virtually conceded that she was not equally qualified or able as the aucceaaful candidates. We would hasten to add that this decision is no way meantto _ condone or encourage the practice of cutting corners in the job selection process. Finally, vhile this Board has no power to so order, ve strongly encourage the Employer to examine the process by which it distributes training assignments. The experience gained through these asaignmenta appears to be one of the primary methods by vhlch an individual can achieve promotion. Insofar as possible it is desireable that they be distributed equitably amongst interested employees. The grievances are hereby diamissed. Dated at Toronto this Lday of Wt., 1989. Vice-Chairperson "1 dissent" (Dissent attached) I. Thomson, Member L. Turtle, Member 6 1135/86 & 1136/86 DISSENT I cannot agree with the majority award in this case. It is very apparent to me that certain people on the Panel had decided who they wanted for the job. It was going to be one of the people the Supervisors and Line Manager’s had chosen. The person who had been groomed for the job by being placed in that position at every possible opportunity and had received the training necessary. The Grievor entering from outside this Department had requested a copy of the Job Specification for the position from the Line Supervisor and was refused. A Niniatry witness from the Human Resources Branch said in effect, “oh that’s all right if the Line Manager doesn’t want to give it out that is their perogative. If they (the Line Manager) called me I would tell them if they want to hand it out they can or not as they choose .I’ To me, that is a shocking statement. 7 This in spite of numerous cases before the Board where it has been ruled that a candidate is entitled to see the Job Spec. and other material for the competition prior to the interview or competition. This Board has also said thatP.D.R.'s and the Personnel files of candidates are to be considered and their Supervisor's asked about the candidates. If they had been, some of the Panel may have given marks to the Grievor for her Superviso K’ instead of ignoring them. v and a The Grievor stated that she would need some tra ini, period of indoctrination. That is only natural coming from another area. If they were not prepared. to do this the competition should have been restricted to people in that one department. This Ministry was supposed to provide training to the Grievor in certain tasks'as a result of a previous Award of this Board, but did not do so in-spite of repeated requests by the Grievor. It seems to me this Ministry ignores orders or suggestions from Awards made by the Grievance Settlement Board and goes on doing as they please. now is it possible for Civil Servants to advance within their Ministry if they are not given training in the necessary Y skills a elements for advancements? The evidence was that the Grievor was constantly asking for further training and it was refused. Since the evidence was that one of the successful candidates was no longer in that position, the Grievor could be .placed there but we were told that there was a hiring freeze and the position would be filled on an acting basis. If that is so,and we were given no written evidence of this,then the Grievor should receive the necessary training prior to the next competition. Article 4.3 of the Collective Agreement is not much help to a Senior employee if they are not given the opportunity to be trained. A Junior employee will always be successful in this case where a person with 2 years seniority is given the job over an employee of 14 years. I find this disgusting and shocking and I urge the union to try and strengthen this clause. I would have placed the Grievor in the position. - I. J. Thomson