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HomeMy WebLinkAbout1986-1147.Wayne and Lowe.88-09-15GRIEVANCE SEllLEMENT BOARD 1147/86, 1148/86 Before: IN THE MATTER OF AN,ARBITRATION Under THE CROWN.EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD ,_., j . OPSEU (L. Wayne S M. Lower) and The Crown in Right of Ontario (Ministry of Transportation & Communications) For the Grievors: For the Employer: Hearings: A. Barrett Vice-Chairman I. Freedman Member D.C. Montrose Member R.E. Stoykewych Counsel ._ Cavalluzzo, Hayes & Lennon Barristers and Solicitors M.D. Failes Counsel Winkler, Filion & Wakely Barristers and Solicitors December 3, 1987 February 11, 1988 June 16, 1988 Grievors Employer DECISION This is a job competition grievance and Section 4 of the Collective Agreement governs. It reads as follows: "In filling a~ vacmcy, 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 grievors were two of twenty applicants for seven vacancies for the position "Inquiry Specialist" in the Ministry. The Position Specification for the jobs in question is attached as Exhibit "A" to this decision. All seven incumbents 'were notified of the hearing and five attended at least part of the hearing. It is the Union's position that the competition that followed the job posting was so flawed procedurally that it must be re-run. In preparation for the competition Ms. McKnight who .is a Human Resources Officer, met with Ms. Clark, the Supervisor of Inquiry Specialists, and Ms. Ritchie, her Supervisor. Those three were to comprise the selection committee and make the hiring decisions. It was conceded by the-union-that the list of questions they prepared to be asked each interviewee at-his or her interview was reasonably related to the job and that sufficient weight was given in the question and the scoring to..the three main skills required for the job. 42% of , .:the marks were assigned to questions relating to interpersonal and communication skills, 33% to problem-solving and. 25% to technical .~- skills. MS. Clarke, as the direct supervisor on the job, chaired / the committee. -2- At the interviews each member of the committee wrote down the answers to the questions and assigned a mark from 1 to 5 for each answer. Each committee member kept her marking scheme private during the interviews. The Union says that up until this point the procedure was fair and objective. It was what happened next that turned the assessment into a subjective-one. When all of the interviews were concluded the committee met again to compare and contrast their scoring, and to arrive at an agreed score for each candidate. They did not keep notes of these concensus meetings andnoione at the hearing could say specifically why some marks were lowered or raised at those meetings. .~ The grievor, Ms. Lowe, in particular.suffered a dramatic 33% reduction. in her interpersonal skills scores at the concensus meeting. Ms. Clark who,had directly supervised the grievor for about-six months when she held the job in question in an acting capacity, gave the grievor a perfect 20 marks on interpersonal skills on her interview sheet, but reduced that mark to 12 in .the concensus, _.., meeting. The other two committee members gave Ms. Lower a mark of 18 and they too reduced their mark to 12 at the concensus meeting. Ms. Lowe also suffered smaller reductions in other areas of.the scoring but nothing as dramatic as her drop in interpersonal skills. Once a cancensus on scores was reached a list of all competitors was drawn up with their scores in all areas set out and totalled. It appears that after this list was drawn up fi$&er changes were made to various individuals! scores. Neither of the two committee members who gave evidence at the hearing was quite sure when the changes were made. It appears though from the _-~ -3- work-sheets that changes were made more than once for many competitors on the tally sheet whichwe know was compiled after the concensus meetings. Ms. Lowe originally had a score of 372; then her interpersonal skills mark was changed from 180 to 120 and she ended up with a score of 312. On the first tally Ms. Lowe placed sixth out of the 20 competitors and whenher score was reduced she then fell to the tenth position. Up until this time no reference checks had been made on any competitor's past job performance, and this is the secon~d complaint of the Union. .I:., There a:re several Grievance Settlement Board decisions, in particular Alam #0735/85, which have held that a competition is flawed, iffthe selection panel, does not consult personnel files, performance appraisals or the supervisors of the candidates. In particular this is the case where some of I' the panel members know some of the candidates but not all of them. In this case Ms. .Lowe was known to Ms. Clark and Ms..Ritchie but, the grievor Mr. Wayne ~was known to none of the panel members. ..~. ~. Having made a final ranking of candidates the committee . then did reference checks on the top 8 candidates. One reference. check was very poor and that candidate was eliminated. The other seven had good reference checks and were offered the.vacancies. "' One person refused the job which left one'vacancy.to fill. Candidates ranked 9,through 13.all had scores within 10% of each other and so reference checks were made on all of them as a'form of Itie-breaker". Each of the 5, including Ms. Lowe, was checked out by Ms. Clark only. She looked at written performance appraisals in the employees' files - 4 - . and spoke with various of their supe;visors. She then eummarized the results of her research and gave an oral report to the other two committee members. A mark was assigned to each candidate. In the case of Muriel Lowe, she had good written performance appraisals. One of them was written by Ms. Clark while Ms. Lowe was working under her in an acting capacity as an Inquiry Specialist and is reproduced below: "Muriel Lowe was seconded to the General Inquiry Unit [Driver Licensing Phones] from Jiine.17, 1985 to August 30, 1985 and is now temporarily assigned to this unit as of October 7, 1985. She resolves . problems on the telephone to enquiries from the public and various client groups with respect to the Driver Licensing function. Muriel is very competent and carries out her duties very well. She is aware of the importance of the Licensing Administration Customer Service Guidelines and strives to provide good service. With clients and co-workers she is courteous, an attentive listener and works co-operatively as a team member. Muriel demonstrates self-reliance as well as ability to cope with stressful situations. She demonstrates very good analytical abilities. In the analysis of a complex problem she is thorough and does not hesitate to ask questions prior to informing the client. Muriel's knowledge of the Driver Licensing function is ever increasing and should become excellent with continual exposure to this area"~; This performance appraisal was written about four months into Ms. Lowe's six month acting assignment. Despite having given this favourable appraisal Ms. Clark gave the opinion to the other two committee .members that Ms. Lowe was "unable to retain knowledge, insecure, lacks confidence, too much double checking, voice audio is poor . . . ..II These unfavourable comments appear to have arisen from Ms. Clark'or other group leaders in her department. She could not tell us at the hearing of any specific other person who had made those comments to her. AS a result of these comments MS. Lowe achieved a score of 30 out of 100 and was accordingly cut from the competition. We have reviewed several Grievance Settlement Board decisions setting out the criteria for the scope of arbitral review of management's decisions with respect to job competitions. The employer must not act arbitrarily, discriminatorilg or in bad faith. Nor should he act unreasonably either in establishing requisite qualifications for then job nor in applying them to the applicants (Remark 149/77). In a 1983 .decision, Marek 414/83, the Board summarized the jurisprudence and admonished~ the selection:-.-~: committee as follows, at page 5: "It is hard.for this Board to understand how this could occur, in view of the repeated direction this Board has given on the need to consult personnel files and candidates' supervisors, particularly .>, when one of the candidates only is known to the ,I interviewers--see; for example, MacLellan and DeGrandis, 506/81, 507/81, 690/81 and 691/81, wherein the jurisprudence is summarised at page 25 and 26: 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 Position Specification. 2. The various methods used~to assess the candidates should address these relevant qualifications insofar as it is possible. For example, interview questions and -evaluation forms should cover all the qualifications. 3. Irrelevant factors should not be considered. I - 6 - 4. All the members of a selection should review the personnel fi the applicants. committee les of all 5. The applicants' superviso'rs should be asked for their evaluations of the applicants. 6. Information should be accumulated in a systematic way concerning all the applicants. See Remark, 149177; Quinn, g/78;. Hoffman, 22/79; Ellsworth et al, 361/80; and Cross, 339181. In-Leslie, 126/79, the primary basis on which this Board ordered a new selection process was the fact that the interviewers knew one of the candidates, and had relied on the interviews alone, without any recourse to the supervisors of other candidates. Nor in, Leslie, had the interviewers referred to the grievor's personnel file or performance appraisals. In our view, this conduct Malone fatally flaws the selection process undertaken by the interview panel here." We also reviewed the decision in McIntyre 0141/85 where the need to make reference checks on. all candidates was again re-iterated. There the 'Board held "while we recognise that it may not always.be practical or possible to review the files of all candidates, in this competition we can see no reason why this could not have been done with so few people being interviewed". In this particular case there were 20 candidates which is a very substantial number. However there were I vacancies which reduces the number to less than 3 candidates per job. Mr. Wayne who scored only 216 on his interview did not have the advantage of being known to anyone on the selection committee nor of having his references checked. At the hearing he. too produced favourable job *performance evaluations. -7 - We agree that it is not always practical to make reference checks on all candidates for a job where there are a large number of applicants and some are obviously superior to .ld . _ others. If Mr. Wayne were the only grievor and the lack.of a reference check on him was the only f~law in the process we wou not find the process fatally flawed. However the over-riding problem with this selection process was its subjectivity. The interview questions were objective and fair. The manner of conducting the interviews was objective and fair. The process of having each interviewer write out the anwers to the questions and assign scores independently was also objective and fair. : It was in the concensusinq process that subjectivity crept in to an alarming degree. No notes were kept of these meetings which were obviously of great importance because scores were changed dramatically for no specific reason that anyone could tell us. We were told thatMs. Clark as the direct Supervisor on the job '.' was given the greatest deference in the concensusing process. She was Ms. Lowe's direct Supervisor for some time and must have had some subjective input into lowering.the score. Then we go to the reference checks. Again it was Ms. Cla~rk who made these checks and again it was to some . . . -a- substantial degree her own opinion of the grievor's abilities which led to her being given an extremely low score. Certainly the written performance appraisals did not justify such a score. In fact they justified a considerably higher one. Neither of the other two committee~members had reference to any original source materials in these reference checks and relied upon MS. Clark's subjective relating of them. We do not suggest, nor was there any evidence to~show, 'that Ms. Clark was in any way biased against the grievor Lowe. We were unable, however, on the evidence to determine why MS. Lowe's "objective" test scores were reduced so dramatically or why she-achieved such a low mark on her reference checks. All of the checks and balances built into the fair interview process went by the boards when the concensus meetings began. We find the selection process so fundamentally flawed that a new competition must be held... All twenty original applicants for the job may re-apply if they wish. A new selection panel must be struck and, difficult thought it may be, they must disregard the two yearsexperience on the job the present incumbents have obtained, and assess all candidates on their merits as at July.1986 when the competition first was held. The candidates' job performance appraisals are relevant data which should be .reviewed-by the new se~lection committee. . . .- - 9 - We will remain seized of jurisdiction in this matter in the event there is any difficulty in implementatidn. DATED at Toronto this 15th day of Septemlter,.L988. Member ., Member POSITION SPECIFICATION AND CLASS ALLOCATION - CSC 6150 (&G) I. DUTIES AND P.EIATED TASKS (continued) 3.1 - ensuring policies and procedures are complied,with; - verifying all documentation, entering all related data via on-line video display terminals; - operating photo-licensing cameras - ,maintaining fi.nenc&al procedures by collecting proper fees, conducting operator close, balancing money from till and preparing operhtor bank deposit; - recording on the work output sheets the number of telephone and insperson inquiries handled daily; - participating in job rotation and training,assignments to develop a bzoad range of knowledge and skills related to driver and vehicle programs, policies and,practices. 3.2 Resolves problem inquiries by analyzing/researching the problem, providing ' necessary information and taking appropriate action by: 309 - listening and asking questions of the client, interpreting legislation and policies and deciding on appropriate action, - researching thoroughly each case, analysing and interpreting information gathered from various resources (e.g. ,computerized driver, driver cbntrol and vehicle data, microfilm copies, etc.), - assessing complex/sensitive problems that require referral and ensuring that these problems are accurately referred for resolution to the Q-oup Leader and/or appropriate office and individual (Driver Improvement', Special Inquiry, Operational Policy, Highway Carrier offices, etc.); - documenting customer service problems to be referred by the Croup Leader ! to the of~fices responsible for problem resolution] - composing semi-routine letters to answer inquiries' on driver; driver control and vehicle procedures and requests for information] sending material of a general nature, e.g. resource material, formsr - dealing courteously and tactfully with distressed/abusive/complaining members of the public in-person or via telephone. . -.. 3.3 Performs other related duties by: NISTRY OF TRANSPORTATION AND COMMUNICATIONS : TRANSPORTATION REGULATION OPERATIONS DIVISION nch*ndSo"400 LICENSING AND CONTROL BRRNCH LCUliOUl MAIN FLOOR, EAST BUILDING, DOWNSVIEW Gmg Lot Con LICENSING ASSISTANCE SECTION 69012 Of c.I.01‘ Pforida orwp hdwthip to: Immmii~t~ Sumrvitm’t tide No. 01 positions NO.O~PIMI Group Leader, Gen. Inquiry S~lvltoor~a pmltion cud, 13 - 06-7503-21 To provide general and specific information and customer service and resolve problems in response to high volume telephone and in-person inquiries from the public and various client groups with respect to driver licensing, driver improvement, vehicle licensing, legislation and practices, 3.1 Working under general supervision of A Group Leader, provides information and customer service by responding to A high volume of telephone and in-person inquiries (630 thousand calls and 220 thousand visitors annually) by, 65% :- identifying the specific need of the client by asking appropriate questions; - interpreting driver and vehicle data on A visual display terminal; ( - maintaining.,the confidentiality of the driver and vehicle files by ensuring that the information is released in accordance with Ministry/Government guidelines, - providing accurate information and excellent customer service to individual clients (public, police, lawyers, fleet owners, instUAnCe companies, M.P./M.P.P. officials and other government agencies, etc.); - responding independently to inquiries on an tiedlate basis i.e. without equivocation thus requiring A thorough knowledge of the driver and vehicle legislation,; policies and practices, including the Highway Traffic Act and general knowledge with the relevant sections of the Criminal Code of Canada, Off-Road Vehicles Act, Motorised Snow Vehicle Act and Automobile Insurance Act, Public Commercial Vehicles Act, Public Vehicles Act, CAVR; - authorising driver and vehicle transactions such as, temporary driver licences, interim notices of r-e-instatement, exchanges of out-of-province licences and replacement of vehicle registration permits, - authorizing Driver and Vehicle Licensing offices/Driver Examination Centres to carry out certain procedures to resolve special/complex driver and vehicle licensing problems; Continwd ,.. 2 ikills md knawbdpc nquimd to prfform job ti full working krrl. IInd~~m mndaory mdrnhh or taur. H wPliabl.1 The emnlovee requires excellent interpersonal, OrAl ColmnUniCatiOn and customer service skills: the abiliiy to deal courteously,and tactfully'with difficult clients; A thorough knowledge of driver and vehicle legislation, policies and practices,&d A general knowledge of the I-- ---k .;: Continued ___ 2