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HomeMy WebLinkAbout1987-1186.Esmail.90-09-06COMM,SS,ON DE SETTLEMENT RiGLEMENT DES GRIEFS IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Esmail) Grievor FOR TEE GRIEVOR FOR THE EMPLOYER HEARING: - and The Crown in Right (Ministry of - and of Ontario Revenue) N. Dissanayake I. Thomson D. Walkinshaw L. Trachuk Counsel Cornish Roland Barristers & Solicitors Employer D. Daniels Counsel Mathews, Dinsdale & Clark Barristers & Solicitors December 6, 11, 1989 March 30, 1990 April 2, 10, 24, 1990 Vice-Chairperson Member Member I 2 w This is a grievance of Ms. Yasmine Esmail alleging that the Employer has contravened article 4-.3 of the collective agreement by failing to award her the position of Senior Assessment Clerk (rrS.A.C.") following a competition. The position claimed by the grievor was instead awarded to Ms. Barbara Jelley, who had less seniority than the grievor. The Union claims that the competition which led to Ms. Jelley's selection should not be allowed to stand because of bias on the part of the selection panel members and procedural flaws in the interview process. Ms. Jelley was given due notice of these proceedings, but did not participate. In order to appreciate the nature of the Union's challenge, it is necessary to set out the background to the origin of the vacancy and the events leading up to the competition itself. The grievor was one of ten assessment clerks employed at the Scarborough Office of the Ministry of Revenue and had held that position since 1981. Ms. Jelley was also employed as an Assessment Clerk. While her seniority date is unclear~, (1983 or 1984) it is agreed that she has less seniority than the grievor. For some years, there had been talk that the government would be introducing a computerized system for information 3 storage and for performing costing calculations. In July of 1985, Mr. M.X. Bowen, the Regional Assessment Commissioner under whose jurisdiction the Scarborough Office fell, was informed that a system known as OASYS would be implemented over the next twelve months. In addition to requiring physical re-organization of the office to accommodate the computer equipment, each office was to have its own "trainers", who would train the staff on the new computer system. By memo dated July 10, 1985, Mr. Bowen was requested to nominate five employees from his staff for purposes of being trained as Vzrainers'* on the OASYS system. The final selection of the trainees was to be made by the Ministry's head office in Oshawa. It was understood that those selected for training would attend a two-week training period in Oshawa and that upon completion they would return to the Scarborough Office to train the office staff on the OASYS system. Mr. Bowen called a meeting of managers, and in consultation with them picked 5 employees. The employees were not given an opportunity to apply for this training nor were there any interviews. Mr. Bowen testified that in consultation with the management group, he picked criteria provided by the head 1985, which were as follows: the nominees on the basis of office in its memo of July 10, TRAINER CRITERIA 1. Knowledge of daily functions in both valuation and services arqas. 2. Well regarded by peers in daily business. 3. 4. Strong commitment to the Project. Available to attend two-week training session in Oshawa (returning home ~-for the weekend only). 5. Excellent communication skills and ability to communicate effectively with all levels. 6. Self-starter. 7. Good positive attitude. 4 Mr. Bowen testified that he did not nominate the grievor for this training solely because of her absenteeism record. He said that in his view attendance came within criteria no.3 set out by head-office, i.e. Strong commitment to the project, and that the grievor failed to satisfy that criteria because of her absenteism. He had two concerns; tihether she would be able to attend the two week training period in Oshawa without interruption and whether upon her return to the office she , would be in regular attendance. The evidence is that prior to the onset of her menstrual period, the grievor suffers severe migraine headaches and that consequently misses work one or two days a month. Her attendance records filed indicate that in 1984 she had 23 l/2 sick days, and to the end of July in 1985 she had 17 sick days. We had no evidence as to how many of these absences were related to the migraine headaches. It is also clear that no one in management spoke 5 to the grievor before excluding her from the training opportunity. Ms. ,Jelley and Ms. H. Shepheard, the ultimate winners of fhe two SAC positions, were among those nominated by Mr. Bowen and selected by head-office for the OASYS training, which took place in February 1986. Upon completion, the trainees returned to the office. While they remained classified as Assessment Clerks, for most Ms. Jelley and Ms. Shepheard were working with the newly implemented OASYS system, particularly in training other staff on the system. Once Mr. Bowen knew that OASYS was coming to the office in Scarborough, he had decided that he needed two SAC positions to be responsible for the day-to-day training and group leadership on the OASYS system. The Scarborough Office had not had any SAC positions in the past. However, based on the implementation of the OASYS system, Mr. Bowen was able to obtain approval to hire two SACS. Once approval was received the two SAC positions were posted. Approximately 14 applications were received. The selection panel consisted of Mr. Bowen, Ms. Pat Gibbs (Manager of Assessment Services and Mapping) and Ms. Genny Juda (Manager of Data Services). Ms. Juda was the immediate supervisor of the assessment clerks (including Ms. Jelley and 6 the grievor). She reported to Ms. Gibbs, who in turn reported to Mr. Bowen. Ms. Gibbs and Ms. Juda prepared a list of questions to be asked of the applicants--at the interviews and weighted them. Mr. Bowen reviewed and.approved these. The Union claims. first of all that the grievor was improperly denied an opportunity for OASYS training. Management hand picked employees for training and in the process ignored the grievor who should have been selected for training on merit. The Union submits that the basis on which the grievor was rejected, namely sickness related absence, was contrary to the proscription in the Ontario Human Rishts Code against discrimination on the basis of handicap. Counsel submits that having provided the training to Ms. Jelley in that manner, the panel should not be able rely on that very training to assert that Ms. Jelley was better qualified for the SAC positions. In addition, counsel points out that two persons who were responsible for the nomination of Ms. Jelley for OASYS training also sat on the selection panel for the SAC jobs. That, she claims, necessarily created a bias in favour of MS. Jelley. She attempted to demonstrate to the Board how this bias was manifested during the selection process. 7 Article 4.3 provides: 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 considkation. In applying the concept of relative equality, the selection panel is called upon to assess "the qualifications and ability to perform the required duties" of the posted position. The Board has interpreted article 4.3 in such manner that an employee with less seniority may be appointed only if such employee is more qualified and able to perform the required duties of the posted job by a substantial and demonstrable marcfin. [Re Thirumalai, 979,/86 (Slone)] If the margin in qualifications and ability is less than substantial, then there is relative equality. If there is relative equality, article 4.3 provides that seniority "shall be a consideration". While the article does not state that seniority shall govern, the Board has held that under article 4.3 "seniority will govern 'unless some overriding consideration suggests some other decision". [See, Re Bullen, 113/82, (Samuels) at p. 121. There are certain things which become clear from the evidence. The decision to create the two SAC positions at the a Scarborough Office and the conduct by the head-office of the OASYS training, were directly a result of the decision to implement the OASYS system on a province-wide basis. Mr. Bowen was able to make a case for the need for two SAC positions i,n the Scarborough Office only 'because of the anticipated implementation of OASYS. When Mr. Bowen nominated .employees to be trained on the system, he may not have had a guarantee that his nominees will be selected by head-office for the training. However, it had to be obvious to him that if any of his employees received the training, they would have a tremendous advantage in competing for the SAC positions that may be created. Conversely, it must have been obvious to him that employees who had not had the OASYS training would have little chance of successfully competing for a SAC position. This is not a case of one employee obtaining an edge in a competition for promotion by being assigned in an acting capacity or being provided training or upgrading of qualifications in the normal course. At the time employees were nominated for the OASYS training, management could, and must, have anticipated the creation of the SAC positions. Management also must have known that any employee who is not selected for training will be placed in a very disadvantaged position in a competition for the SAC positions. While "training" is an exclusive management function under section 18.1(b) of the Crown Emvlovees Collective 9 Baraaininc Act, the Employer is not entitled to exercise that right so as to deny rights negotiated on behalf of employees in collective bargaining in accordance-with the Act. The recognition of seniority fin filling vacancies contained in article 4.3 is such a right. The Employer cannot exercise its management rights to circumvent its obligation under article 4.3. The only evidence we had on the nominating process for trainees is that it was done at a managers' meeting and a general assertion that nominees were selected by the application of the seven criteria. We heard nothing about the managers' reasoning asto how the grievor and Ms. Jelley stood up when each criterion was applied to them. On the contrary, the grievor was regarded as out of the running sblely because of her absence record. While it is not surprising that management was concerned that the "trainers" be able to regularly attend work, we do not think that they were reasonable in counting the grievor out of contention for training as it did. One concern Mr. Bowen had was the grievers's ability to attend the two week training session in Oshawa without missing any time. He simply assumed that the grievor would not be able to do so, without even talking to her. He relied on the number of days of absence without regard to the cause. The grievor's evidence was that her sick days were predictable because the migraine occurred regularly 10 with the onset of the menstrual period. We do not know if the grievor could have given Mr.~Bowen an assurance that she would be able to attend the training period-.without interruption based on her sickness pattern. Similarly, we are not satisfied that Mr. Bowen gave any serious thought as to whether a predictable absence of approximately a day a month by one of two SAC's would be so intolerable from the Employer's perspective. We are satisfied that Mr. Bowen did not act in bad faith in making the nominations for training in the sense of deliberately setting out to disadvantage the grievor or to confer a favour on Ms. Jelley. Nevertheless, we are satisfied that the manner in which the grievor was excluded out of hand was so arbitrary and unfair that it rendered the competition that followed less than fair to the grievor, because substantial weight was attached to the OASYS training and experience in the marking. The memo of July 10 1985 from head-office directed Mr. Bowen to nominate "the best possible personnel to train your office", in the OASYS system. Two of the three members of the selection panel for the SAC positions, namely Mr. Bowen and Ms. Gibbs were directly involved in picking who they viewed were the best possible personnel to train the staff in the Scarborough Office on OASYS. Those picked included Ms. Jelley and Ms. Shepheard, but not the grievor. The gist of the responsibility of the SAC position was the provision of day- ; . I : 11 to-day training and group leadership to all staff at the Scarborough Office on the OASYS system. Therefore in selecting Ms. Jelley and Ms. Shepheard -for the training, Mr. Bowen and Ms. Gibbs must have in effectformed the conclusion that they were "the best possible personnel" for the SAC jobs to be created and filled. Then they immediately turned around and sat as members of the selection panel for the SAC positions. In our view, having already represented to the head office that Ms. Jelley and Ms. Shepheard were the best possible personnel, it would have been impossible for them to have overruled themselves by selecting someone (like the grievor) who had not received the OASYS training, for the SAC positions. They would have,had no choice but to appoint those who had received the OASYS training no matter what happened in the interview process, because to do otherwise would have made them look very foolish in the eyes~ of their superiors. This is more so because it appears that everyone,' including the head-office, assumed that people with OASYS training such as Ms. Jelley would be the successful candidates. Thus there were no contingency plans in the event a person who had not had the OASYS training was ~appointed as a SAC. The evidence was that the head office had not provided for sending the successful candidates for OASYS training, if they had not already had that training. 12 By electing to serve on the selection panel, Mr. Bowen and Ms. Gibbs clearly created a reasonable perception of bias, in 'the sense of being under severe.- pressure to select employees who had received the training. While Ms. Juda was not directly involved in the nomination of employees for training, since Ms. Gibbs and Mr. Bowen were her superiors, it is likely that she also would have been influenced by her knowledge of the position Mr. Bowen and Ms. Gibbs found themselves in. As long as the OASYS training and experience is given any significant weight, the results of the competition'has to be a foregone conclusion to any reasonable person, namely that the winners would be those who have had the OASYS training and experience. In other words, the interview process was a meaningless formality to the extent that it was open to employees who did not have the OASYS training. In addition to creating a perception of bias by electing to serve on the panel, the Employer made matters worse by manner in which the selection process was carried out. Despite Employer counsel's attempts to convince us otherwise, we are satisfied that the panel relied solely on the interview results in filling the SAC positions. Both Ms. Juda and Ms. Gibbs testified that they gave marks based solely on the answers given to the questions at the interviews and did not take into account information they were aware of but not 13 repeated as part of the candidates' answers. On the basis of the marking Ms. Jelley scored an average of 88/110 and the grievor 75/110. The panel concluded that the difference was significant enough not to consider anything in the resumes, employee files or performance appraisals. While two of the three panel members had read the resumes, we are satisfied that their contents were not assessed in determining the relative qualifications and ability to do the duties of a SAC. The same is true of employee files and performance evaluations. These had not been recently reviewed by any of the panel members. While Ms. Juda and Ms. Gibbs were familiar with the employees' work, there is no evidence that that knowledge was analysed in any way as they related to the suitability for a SAC position. As Ms. Juda put it "the scores of the two top employees were so much higher, there was no need to consider anything else". Furthermore, panel members appear to have approached the interviews as the judging of a "performance", not as a means of ascertaining the candidates' ability and knowledge. For example, Ms. Juda considered the grievor's answer to a question to be inferior because she used the term "supervision" in describing the main purpose of the SAC position. Ms. Juda considered the correct answer to be "group leadership". Ironically, the Commissioner, Mr. Bowen himself 14 during his testimony said that the primary function of the SAC position was the "supervisory aspect". To site another example, the answer of "can be split or 100%" given.by Ms. Jelley was judged by 2 panel members to be superior to the grievor's answer' "can be split". In cross examination it was agreed that if something can be split, it can also be not split and if notsplit it remains 100%. The point is that the grievor's answer should have told the panel that she knew the answer, but she was penalised. Similarly, the grievor was penalized for saying "call the head office" instead of saying "call the OASYS desk at head office". The grievor testified that she had called the OASYS desk many times and it should have been understood that when she said "call head office", she meant call the OASYS desk at head office. But even without asking for clarification, the panel took the answer to be wrong. We are of the opinion that the marking by the panel was superficial. Also the Employer witnesses stated that the grievor scored lower because on numerous occasions she had difficulty understanding the question or was not very clear in her answers. While ability to communicate is a reasonable concern, we have no evidence that the fault was always the grievors. On several questions, one panel member penalised the grievor because she did not mention a particular thing. : . . r 15 However, the notes of the other two members had noted that the grievor had in fact mentioned it. Therefore the indication is that the grievor did say it, but the interviewer did.not hear or did not understand. The selection panel had a list of prepared questions, but no agreed upon answers. The result was a very subjective system of marking. [Re Thirumalai, 979186 (Slone)]. To make matters worse some questions necessarily involved subjective answers. Ms. Juda testified that her marks depended on her opinion of each answer. The subjective marking system used The Board does recognise that the SAC job requires good communication skills. But so does the assessment clerk job which the grievor had performed without complaint for years. The evidence is that she had good performance appraisals and there is no indication of any problems in communication. Even if the grievor was less than perfectly articulate during her interview that is not a determinative indication of a lack of communication skills. The panel had much more reliable evidence in the employee files and appraisals if the grievor had any problems communicating effectively. It is not appropriate to judge an employee's communication (or for that matter any other) skills based solely on the performance at a brief interview, when much more reliable evidence is readily available elsewhere. c 16 was very evident from the testimony of the Employer witnesses. On numerous occasions they testified that the grievor was scored less because her answer although correct was "not quite complete" or "not fully clear" and so on. A number of questions had three or four sub-parts. The question as a whole was allocated a total number of points but there was no breakdown of the total points as it applied to the various sub-parts. We are satisfied that this also resulted in very subjective and inconsistent marking by the various panel members. See Re Thirumalai, 979186 (Slone). While there were only two questions on OASYS directly, there is no question in our mind that Ms. Jelley received. higher marks for a large number of questions because of her training on OASYS and her subsequent experience with the system. In addition to the real advantage she had, th'e panel's bias manifested itself in her favour in the marking. While ever ready to find adversely for the grievor, the panel was rather generous with Ms. Jelley. For example, take the area of "experience in training people". The grievor informed the panel that she had supervised certain go-temps. Ms. Juda did not give the grievor credit for that because Ms. Juda was not aware that the grievor had in fact done that function. Eased on Ms. Juda's advise another member of the, panel discounted that experience. Neither bothered to ask the 17 grievor for any details of the alleged work or to verify the truthfulness of her claim. They simply assumed the grievor .was lying. At the hearing the grievor was not cross-examined on her answer.. Nor was any evidence forthcoming to suggest that the grievor did not do the supervision work in question. On the contrary, Ms. Jelley was readily given credit for her claim that she had been a ski instructor, something the panel members could not have been personally aware of and a kind of 1'supervision8' quite different from the kind of supervision and training encountered in the government service. We have already noted the adverse conclusion the panel members drew from the grievor's reference to "head office" as opposed to "the OASYS desk at head office". On the other hand, Ms. Gibbs and Ms. Juda gave Ms. Jelley full marks for a question eventhough she omitted to mention "DBSB". It was their contention that DBSB was the same thing as the head office which Ms. Jelley had mentioned. The inconsistency and subjectivity in the marking is amply demonstrated in the way the question "what are your career goals" was handled. Firstly, the question does not elicit any answer which will assist the panel in determining the candidates' qualifications and ability to perform the duties of the SAC position, which is the whole purpose of the competition. A perfectly qualified candidate may say that she : c. 18 intends to become a nun in the future. Does that make her any less qualified for the job? Ms. Juda gave Ms. Jelley full marks because she said she wants to remain in government and go to the head office. The grievor was penalized because she stated that-she hoped to advance in lladministrationt'. Ms. Juda understood lladministrationV1 to mean that the grievor wished to seek a job in the personnel office. She equated administration with personnel. MS. Juda sought no clarification from the grievor what she meant by "administration" I but jumped to a conclusion, which in our view is clearly wrong. The management has clearly recognised that the SAC position involved a significant administrative aspect. Thus 40 of the 110 points assigned to the interview questions were allocated to a section titled "Administrative/Group Leadership Skills". On the matter of training, the Board in Re Alam, 735185 (Brandt), at pp. lo"11 observed: In addition to those already mentioned there are certain other elements in this competition which render it defective. it cannot be doubted that Ms. Sokoloski enjoyed an advantage in the competition by reason of the fact that she had been performing most of the duties of the job for a period of approximately 6 weeks between the retirement of the previous incumbent; Mr. Raigla, on May 1 and the competition on June 20th. This is not to say that any time a competition is conducted in which one of the candidates is performing the duties on a temporary basis it must inevitably and necessarily be flawed. However, care must be taken in designing the examination so as not to give the incumbent an advantage that can be said to be unfair. We think that in this case there were elements in the 19 examination which did not meet that standard of fairness. In our view, the defect in our case.is even more serious. Here Ms. Jelley was hand picked for OASYS training in clear anticipation of the creation of SAC position. We have concluded that the grievor was not given fair consideration for the training. After the training, Ms. Jelley had the advantage of working with the OASYS system for several months. Then the interview questions were set and marked in such a manner that Ms. Jelley had a significant, and in our view unfair, advantage over the grievor. On the totality of evidence the Employer has not met the standards set by the Board for the proper conduct of a competition. We have noted a number of procedural flaws. When the cumulative effect of the flaws are seen in the context of the totality of the facts, we are satisfied that the competition did not properly assess the candidates' qualifications and ability. We have concluded that the selection panel relied solely on the interview marks in selecting the winners. -This by itself is reason to strike down the competition. See & Poole, 2508187 (Samuels) and Re Cliooerton, 2554/87 (Watters). Also, a job interview under article 4.3 must not be approached 20 as a means of judging a performance. The purpose is not to determine who can better handle an interview. It is a process of information gathering for the purpose of ascertaining the true abilities and qualifications of the candidates. Once again we emphasise that we are not satisfied that the panel was guilty of bad faith as alleged by the Union in the sense of deliberately orchestrating the success of Ms. Jelley. However, they made the critical mistake of sitting on the interview panel after their involvement in the selection for OASYS training. By so doing, they fettered their ability to objectively seek out the qualifications and abilities of the candidates. As the Board has attempted to illustrate, this shows in the manner the panellists viewed and evaluated the various answers. Perhaps sub-consciously, their judgementwas coloured in favour of Ms. Jelley. This translated easily into generous marking for Ms. Jelley particularly because there were few restrictions on the marking. There were no agreed upon answers, no breakdown of marks to be allocated to sub- parts of questions and a number of questions called for very subjective answers. The end result is that the scores allocated at the interviews are unreliable as indicative of the true qualifications and abilities of the respective candidates. This brings us to the question of remedy. There is no question that in appropriate cases, the Board has 21 jurisdiction, where it finds a competition to be flawed, to direct that the grievor be awarded the job retroactive to the date of the appointment of the incumbent.-and to compensate the grievor for all losses from that date on (See, R V. Ontario Public Serv.ice Emulovees Union 35 O.R. (2d) 670, where the Divisional Court upheld such a remedy awarded in Re Zubrvcki, 100176). However, before the Board can exercise such remedial jurisdiction it must have before it sufficient information to assess the relative qualifications and abilities of the candidates in question. If sufficient information is not available, the practice of the Board is to order a second competition. (See, Chen and Ialon, 70/79) In the present case, the Employer conceded that the grievor was qualified for the SAC position. However, that concession is not determinative. To award the job to the grievor, we must satisfy ourselves that the grievor's qualifications and abilities to perform the SAC duties are relatively equal to that of Ms. Jelley. Upon a consideration of all of the evidence before us, we are not satisfied that the information before us allows us to make that decision. For example, the employee files and performance appraisals which were not reviewed by the selection panel were not made available to this Board either. We are not persuaded that this is an appropriate'case in which we should substitute our judgement for that of the Employer by awarding the SAC 22 position to the grievor. It is more appropriate to direct a second competition subject to a number of conditions. For all of the above reasons the Board directs that the appointment of Ms. Jelley to the position of SAC be revoked and that a second competition be held subject to the following conditions: (a) The competition shall be restricted to the grievor and Ms. Jelley. If Ms. Jelley does not apply, the grievor shall be awarded the SAC position effective the closing date for receiving applications. (b) The competition process shall be commenced within 30 days of the date of issuance of this award, subject to extension of this period on the mutual agreement of the Union and Employer. (c) The selection panel shall not include any of the three~persons who served on the original panel. (d) The panel members shall prepare a new set of questions reflecting the importance of the job duties of the posted positions. A set of standard answers shall also be prepared. The points to be allocated to each question or sub- part of a question shall be pre-determined. In fashioning the 23 questions, the Employer shall ensure that Ms. Jelley is not accorded an unfair advantage because of the OASYS training and her work on the system prior to the first competition. (e) The candidates' supervisors shall be requested for substantiated assessments of their work performance in writing. These assessments shall be considered in conjunction with the employees' work record as reflected in employee files and performance appraisals. (f) The selection panel shall discount any experience or knowledge that Ms. Jelley may have accumulated since being appointed to the SAC position following the first competition. (g) The selection panel shall have regard to the criteria for a proper selection process set out by this Board in MacLellan and OeGrandis, 506181 (Samuels) at pp. 25-26. In particular the selection panel shall review the personnel files, including the performance appraisals if any, of the two employees. The grievance is therefore allowed to the extent of the remedy awarded. The Board retains jurisdiction to deal with any difficulties that may be encountered in the implementation of this award. 24 Dated at Hamilton, Ontario this 6th day Septembq 1990 - u Nimal V;Dis&nayake Vice-Chairperson D. Walki.!jhaw Member