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HomeMy WebLinkAbout1987-1622.Tully.88-07-29Between: Before: For the Grievor: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (J. Tully) and The Crown in Right of Ontario (Ministry of Skills Development) B. Kirkwood Vice Chairman I. Freedman Member A. Reistetter Member S. Goudge, Q.C. Counsel Gowling & Henderson Barristers & Solicitors . For the Employer: v. Malpass Personnel Administrator Hearin@: Personnel Services Management Board oE Cabinet . February 10, 1988 February 25, 1988 Grievor Employer Page 2 DECISION The grievor has been employed with the Ministry of Skills Development and its predecessor since August 12, 1970. He was originally employed as an apprenticeship counsellor and was reclassified in 1979 to the position of Industrial Training Consultant (Industrial Training Consultant). He remained in that position except for a period of eight months in 1970 when he was seconded to the position of development officer. During the seventeen years that he had worked for the government, he had applied for jobs almost annually. He had most recently applied to fill another vacancy with this Ministry approximately three months before the job posting which is the subject of this grievance. In this instance the grievor responded to an advertisement for Program Coordinator (3) with the Ministry of Skills Development by forwarding the resume which he had prepared for the previous vacancy, and a covering letter. The grievor was not given an interview and is claiming that he was improperly denied the interview. - i There was no dispute that the job had been properly posted pursuant to Article 4.1 of the Collective Agreement Both parties agreed that the role of the Board was to follow the procedures set out in OPSEU (Walter Borech> and The Crown in Right of Ontario (Ministtvm October 18, 1982, GSB #256/82 (K. Swinton) such that the onus is upon the employer to show that it had acted properly in reviewing the applications. If the employer was able to discharge the onus, the grievance would fail. If,’ however, the Board were to find that the employer had failed .to .act properly, it would be upon the Board to consider the relative equality of the candidates and to determine whether the employer’s decision was correct. Page 3 II was the employer’s position that the employer’s selection process~was consistent with the job posting and the requirements of the position, and further that Mr. Tully’s written application was fairly and adequately assessed; however, his application failed to disclose sufficient job related information to wanant an interview. Hank Demeris is the Manager of Program Standards for the Ministry of Skills Development and oversees the position of prom co-ordinator. He was involved with his staff and was directly involved in reviewing the position specif%zations and class allocation for the position and for adapting the standards to an advertisement which was posted for the job Position. The Program Standards Branch is responsible for advising the Ministers on training, using a network of various clients to develop recommendations for legislation, becoming involved in apprenticeship and modular training, @ssroom training and on-the-job training, and developing examinations in various formats, both practical and written, for those involved in the school program. It is responsible for insuring that the training is in compliance with the Apprenticeship Training and Qualifications Act (A.T.Q.A.) and it is involved in the scheduling and marking of examinations, providing certificates and accreditation for the successful candidates and for maintaining records. The program coordinator is responsible for maintaining and chairing program advisory committees established under A.T.Q.A. or other legislation to determine the needs, for training and the revision of training programs &I advisory committees, for amending training programs and for approving the various standards of the trades. In so doing, the co-ordinator must be able to work with over 67 trades regulated by license, and over 500 employer sponsored trades to identify each one’s needs. In developing these programs and standards, the program coordinator must be able to liase and consult with representatives from many diverse groups which include, directors of training, vice-presidents and presidents of unions and companies, Deans of colleges, Senior management and employer personnel, field service personnel and persons from other ministries. The role is very broad and the purpose is to identify new programs, review or modify existing programs, make recommendations to the government as to how it can become a role mc&l in apprenticeship training, respond to ministerials, assist in development of submissions to the Page 4 Cabinet and recommend policies relating to zipprenticeship and modular training. Hank Demeris advertised the.position as follows: “Required by the Ministry of Skills Development, Apprenticeship Branch, to: A liaise with employers, employees, unions and training delivery agencies to identify training needs and develop competency and time-based skills training programs, consistent with company specific, provincial and interprovincial standards; A provide resources and co-ordinate cons@tative services to governments, business, industry and educational agencies in the methodology of occupational analysis, curriculum development, instructional technology and assessment techniques: evaluate and approve educational and skills training programs. A establish, administer and chair advisory committees; design develop and amepd training legislation under the Apprenticeship and Tradesmen’s Qualification Act: A formulate policy pertaining to skills training. QUALIFICATIONS: A A A A A A ,A A extensive knowledge and experience in occupational analyses, program design, curriculum development, instructional techniques, measurement and ‘evaluation methodologies and program implementation; ability to relate well to diverse client groups; skill in project team managemenS detailed knowledge of the Apprenticeship and Tradesmens Qualification Act, well developed conceptual, analytical, interpersonal and. problem-solving skills; superior communication, consulting and intevnal skills; flexibility to tzavel; written and oral fluency in French and a post-secondary education will be an asset.” This was the first time that this position had been advetised and the advertisemenr was open to members of the Ministry and to the general public. Page 5 One hundred and five applications, including the grievor’s, were received for the job. The applications were first reviewed by’Yolantas Stachow and then were forwarded to Hank Demeris for his review. Mr. Demeris did not review Ms. Stachow’s findings, but screened the applications independently. In determining the criteria that was to be used to screen the applications, Mr. Demeris reviewed the qualifications on the job posting, and broke the qualifications into nine categories, which were considered as skills for the job, and two categories,~ French and post secondary education, which were considered as assets. Mr. Demeris did not consider the flexibility to travel as an element to be considered in the acceptance or rejection of an application. The categories were made into a table: SKILLS Extensive knowledge and experience in occupational analyses Program Design Program Development and Implementation EQUIVALENT TO O.A. - occupational analyses P.D. ,,,iculum Development Instructional Techniques P.D. & I. C.D. LT. Measurement and Evaluation Methodologies and Program Implementation Ability to relate well to diverse client groups M. & E. - measurement and evaluation Skill and project team management C.C. - communication, consulting and interpersonal P.T.M. Detailed knowledge of Apprenticeship and Tradesmens Qualification Act K.A. - knowledge of A.T.Q.A. Well developed conceptual, analytical, interpersonal and problem-solving skills C.A.P.S. - conceptual, analytical and problem solving Superior communication, consulting and C.C. - communication, consulting interpersonal skills and interpersonal Assignments and oral fluency in French and a post- secondary education. -Page 6 ‘Flexibility to travel Not used I+ Demeris reviewed the written applications and covering letters to determine whether each applicant had any or all of the categotized skills and assets. Mr. Demeris restricted his review to the written documentation and did not call upon his background knowledge or any outside sources to determine whether any of the applicants had the required skills. He went through the applications twice and compared each application with the criteria. If he found that the candidate’s application or the coveting letter‘ indicated that the candidate-may have the skills, the applicant was given the benefit of the doubt and the appropriate skill was checked off and tabulated. Mr. Demetis met &th his director who again reviewed the criteria and the data and they decided that they would interview all candidates who had seven out of nine on the tabillation of the skills. After screening the one hundred and five applications, Mr. Demeris found that there were nineteen who substantially titlfUed the qualifications they were seeking and to whom an invitation was made to be interviewed for the job. The grievor’s application was not one of the selected employees. Fourteen interviews were conducted from which three successful applicants, being Ms. Sherry Cameron; Dr. Grant Clarke and Mr. Ed Garden, were chosen. The successful candidates were given notice of the hearing. Only Dr. Clarke chose to attend The union submitted that the employer acted improperly in denying the grievomn interview I by relying exclusively on the documents presented by the various candidates. In the union’s view it was defective in three ways. The fust is that it gave~a benefit to those persons who had the ability to prepare an excellent resume over those who had not had such an experience. Secondly, as there was no warning to the candidates that the employer would be relying exclusively on the documentation presented, those who were not accustomed to providing full and complete resumes would be at a disadvantage. Thirdly, in the situation of an inside applicant, the employer has information relating to the employment history of that person readily available to it and the employer must investigate and must not rely only upon the written documentation presented by the applicant. Page I, More particularly, the employer should have relied upon his knowledge of the Industrial Training Consultant’s job functions to come to the conclusion that the grievor, who had acted as an Industrial Training Consultant for the last 17 years, would have sufficient skills to be considered for an interview for this position. The employer argued that the issue was whether or not the employer violated article 4.3 by denying the grievor an interview. Article 4.3 states: ” 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.” In the employer’s submission, article 4 provides for a competition process to ensure that the best qualified candidate is selected and not the~employee who can meet the basic requirements of the I position, As seniority is only relevant when the candidates were relatively equal, the selection process was geared to identifying the best qualified applicant in a fair and unbiased manner. The Board agrees that there is no obligation on the employer to interview ail the applications for the job, but there is an obligation on the employer to choose the applicants to be interviewed fairly and without di scrimination, as Mr. Swamr in the .F%rrecki (supra) decision states at p.7 “In conducting a job competition, an employer cannot 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 the job in question. At other times, the 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 r&kings, again, must be reasonable, in the sense that each candidate’s qualifications are reasonably evaluated’ Failure to interview and employee with greater seniority than the successful candidate may well lead to a grievance, with the senior employee arguing that he is relatively equal.” Mr. Demeris received a large number of applications from which he was entitled to choose the best qualified applicant. As it is a competition, he may limit the pool to be interviewed to those Page 8 c+idates who indicate that they ‘are most likely IO have the qualifications and ability to perform the job, as opposed to having~qualifications and ability in an abstract form. (OPSEU (Chen& and & Crown in Rieht of Ontario (M’nistrv 1 o f N& Resourca, GSB #179/19 (R.L. Verity, Q.C.)) As stated by Mr. Verity: “There are, two other features of Article 4 which bear upon the resolution of this grievance and which, therefore, merit our comment. In the First place we would draw attention to the fact that by its terms Article 4 instructs the employer to give ‘primary’ consideration in effecting a decision under its terms, to the qualifications and ability of the applicants to ‘perform the required duties’. That is to say not only must those two factors assume a predominant position in the employer’s selection under Article 4, but as well those factors must relate to the actual duties of the position. In short it is the app!icant’s qualifications and ability to perform the required duties of a Data Entry Operator 3, and not their ability and qualiications in the abstract that is the primary and material consideration that should underlie a determination made under Article 4.” Mr. Demeris set up criteria to match the job requirements as posted and objectively considered each application against the criteria. The criteria was predetermined to match the job requirements as posted with the exception that an ability to relate well to diverse groups was considered as requiring the same skills as communication. Mr. Demeris gave equal weight to each element. Whereas the union was able to show that some skills may have a greater weight in exercising the job function, the union was unable to persuade the Board that even weighting should not have been applicable in this case nor could they show that such weighting was unfair to the applicants, when they were all beiig graded against the same criteria in the same way. Mr. Demeris went to great lengths to ensure that all one hundred and five applicants were assessed in the same manner. As the selection process was one of a competition, and there were ,nineteen persons who had at least seven of the skills, it was not unreasonable for Mr. Demeris to arbitrarily make seven out of the nine skills the cut off point for selection for the interviews. When Mr. Demeris reviewed the grievor’s resume, he foFnd that the grievor was qualified in three out of nine of the qualifications and had one of the two assets of which they were looking for. The issue is then, did Mr. Demeris err in the treatment of the grievor’s application. Page 9 The grievor responded to the advertisement with the following covering letter: “Attached is my application for the position of Program Coordinator, Vocational Training Supervisor, advertised by your Ministry. I am an Industrial Training Consultant with the Ministry of Skills Development, who is responsible for the administration of the Apprenticeship as part of job of Industrial Training Consultant and Tradesman’s Qualification Act and Regulations. My duties are to liaise with employers and community colleges, and promote industrial training to a variety of clients. My position requires expertise in the areas of job analysis, program development,. occupational counselling and certifications. I also monitor and evaluate the programs that I develop to ensure effectiveness. I was seconded to the position of development -P.D.I. officer, and produced on-the-job training programs for industry. FinanciaI incentives were provided by Canada Manpower, and the Province was the training authority. I have considerable management experience, as I act for my supervisor during his absences, and would welcome the opportunity to develop my career further with your Ministry. Should you requge mom information, please contact me; I look forward to hearing from you in the near future.” His application indicated that he had taken grade 13. and. had completed a course in Mechanical Engineering in Scotland, Industrial Electronics at Ryerson. Public Administxation at University of Toronto, Mechanical Engineering at London City, Guilds. He had been employed as an Industrial iiaining Consultant and had the responsibilities and functions to identify training needs, development of programs, promotion of training and liason and consultation with employers. During the period of his secondment, he had the duties and responsibilities of short term training programs, and Provincial and Federal ,liason with respect to financial incentives. He had also worked as an engineering technician and had been responsible for systems design and applications, contract administration, and supervision of installations. In analyzing the grievor’s application and covering letter, Mr. Demeris attributed three skills to the grievor as a result of his experience as an Industrial Training Consultant - that is job analysis, which was considered as program development and implementation, superior communication skills and knowledge of A.T.Q.A. From his experience with the London Guild, the grievor would be aware of the apprenticeship programs and would be able to consult with employers and employees and therefore had communication skills and again, knowledge of A.T.Q.A. He recognized his post Page 10 secondary educafion as an asset. He credited the grievor with program development and implementation.from his experience as an Industrial Training Consultant ‘and as a development officer from his period of secondment. Therefore, he had a score of three out of nine on the skills and had one out of two of the assets. The grievor testified that he had a grade 13 education and had taken several courses subsequently. The seventeen years of work as an Industrial Training Consultant provided him with the qualifications that were being sought in the advertisement with the exception that he did not have an ability to use French. His job provided him witt, the experience to liase with employers, employees, and unions to develop programs. Furthermore, in his present position in preparing job analyses, he was able to fulfill the requirement to provide resources and consultative services to various elements of bus6ess. industry and government and he had knowledge of the A.T.Q.A. Although he provided training programs, he admitted that his programs had not gone so fax as to provide curriculum to be. used in the classroom setting. As an Industrial Training Consultant, however, he had the ability to assess instructors at?d by acting on the apprenticeship committee, he was able to assess various job tasks. He was able to evaluate and approve skills and training programs. Although he did not have the ability and official capacity to chair committees, he acted as a coordinator of committees and his curriculum vitae indicated that he had chaired other cornmitt~s outside of the work force. Furthermore. through working as an Industrial Training Consultant he had knowledge of the Apprenticeship and Tradesmen Qualifications Act. Although be was not involved in the formulation of policy on skills training, he was involved in the implementation of the same. Contrary to Demeris’ assessment of his qualifmtions, he felt that he did have the skills to do occupational analysis from the production of schedules in his function as a job analyst. ‘The process and result was the same. He obtained instructional technique from the development of programs and he had the ability to measure and evaluate through the evaluation of programs arid assessment of~,the ins&uctors. In addition, he had obtained the skills in project team management through his responsibility for joint training and the apprenticeship committees. Inherent to his job is conceptual. Page 11 analytic:11 problem-solving. In every analysis of a job resume there is always a certain degree of subjectivity which a reviewer uses to analyze the resumes given and upon which he draws conclusions and assumptions on work previously performed. However, the employer must endeavour to be as objective as possible in reviewing and assessing each application. The role of the Board is to consider whether the process which the employer used was properly done. OPSEU (Hoffman) and The Crown in Ri ht of On ario Minis c a t ( w of Transnortation and Co mmuni ations, May 29, 1981 (PG. Barton), after considering the effect of the Re mr Great Atlantic and Pacific Comuanv of Canada Li ‘ted and Cs (1976) 13 L.A.C. (2d) 211 case and by reference to anadian F them decision 9/78, states: , “In meeting the obligations under that article the employer must employ a process of decision making designed to consider the relevant qualifications and ability of the candidate in a competition which will ensure that sufficient relevant information is adduced before the decision makers in order that they may make their comparisons in the confidence that they are able to thoroughly and properly compare the qualifications and the abilities of the competing applicants.” The Board finds that the employer categorized the elements in the qualifications in a fair and reasonable manner by predetermining the criteria which related to the job in question and by weighing each application against the predetermined criteria. In such a way, Mr. Demeris was able to assess the applications fairly. By doing the analysis of the qualifications prior to comparingthe respective applications, he is creating an objective test. By relying on the written material presented by the applicant in every case, the employer was looking at the applications in as objective manner as possible. Outside mater$and contacts by their nature amyariable in quality and quantity, and had the employer investigated all the outside sources for references to flush out further qualifications of all the applications, he could easily be subjected to criticism for not handling the applications in an even manner, notwithstanding, a desire to do so and deliberate action to do so. Furthermore, as it is a competition, if it appears from the applications that there is a reasonable pool of people who meet the qualifications that the employer requires, the employer does not at this stage have to make further investigations. Page 12 There is also an obligation upon an employee responding to a job posting to set forth in his application, resume and covering letter those qualifications which he or she has which best meets the qualifications described in the job posting as best as the applicant can, as the nature of the hiring procedure is a competition between applicants. The employee is at his peril if he does not provide sufticient detail, as the employer is not under the obligation to interview all applicants to allow each apphcant to develop his resume. In this case, the grievor certainly was not inexperienced in applying for jobs. He had made applications almost every year in which he was in the Ministry, up to three months before this application. In addition he had acted as a union president for three years and was experienced with job competitions and acknowledged that he knew about the job competition process and what was required in competing for a job. Even though he was not warned specifically to forward as complete a resume as possible, he was still aware from his previous experience as a union president that it was a competition, and that it was incumbent on the applicant to be able to show that he or she is best suited for the job. Although .the grievor had not spoken to anyone before applying to this job, he was aware that a resume was required in addition to his application, and he duly submitted one. His resume was appropriately prepared and was subject to analysis in compedton with the other applicants. However, in comparison with the criteria and ultimately to the successful candidates, the grievor’s covering letter, ‘application and resume did not indicate that the grievor has as many skills as the successful competitors. ” Although not bearing on this decision, it does appear odd that the grievor started the i grievance procedure prior to his application not being accepted for the interview. If anything at all could be construed from this fact, it is, that the grievor felt @at his application was in a weak position and that he was attempting to use the grievance procedure to bolster his chances: The union asked the Board to accept the grievor for an interview on the basis that the experience as an Industrial Training Consultant was sufficient to provide the required qualifications, especially as there were four other Industrial Training Consultants who were, interviewed even though they did nor get the job. The application of those persons were not before the Board and Page 13 therefore it was not shown that the Industrial Training Consultant experience was the-only factor that was relied upon to consider those person as having a score of at least seven of the qualiftcations. / The Board finds that the experience of being an Industrial Training Consultant does provide some of the skills, but it does not necessarily mean that all the skills required are gained from this experience. As seen from the evidence, the requirements of the program co-ordinator,required an examination and evaluation ‘of major province-wide programs to design new ones, not just an analysis of programs on a local basis, as is done by the Industrial Training Consultant. An Industrial Training Consultant is instrumental in promoting Andy monitoring industrial training programs to specialized clients in assigned areas, as opposed to viewing and analyzing the occupations and trades on a provincial basis. It required the formulation of policy and not the application of policy. In essence, the scope of an Industrial Training Consultant job is more limited than that of the program coordinator, who oversees the Industrial Training Consultant. In considering the grievor’s application, the Board agrees ‘with Mr. Demeris’ analysis for the Test part. The union suggested that through its evidence the qualifications required to do the job analysis were the same as occupational analysis. On first glance it may appear to be so, as both require an element of analysis; however, Mr. Demetis showed that the employer was looking for an ability to use surveys and a statistical approach to’break down the components of the occupation in order to set provincial standards in occupational analysis, rather than the approach taken by the Industrial Training Consultants who were accustomed to speaking to the individuals to break down the components of a job. ‘The Industrial Training Consultant may break down the trades into components, but those jobs are still viewed on an individual basis. In some respects, the employer was looking for skills in measurement and evaluation, which was a different category and which was not shown on the grievor’s application, and should not be considered as part of occupational analysis. After excluding that factor from occupational analysis, the grievor still had only the skills to consider trades on an individual basis as opposed to the broader analysis of the trades on a provincial basis. Page 14 The union also suggested that by being an Industrial Training Consultant, the person would have experience in instructional techniques. Mr. Demeris clarified that instructional techniques did not mean that the person would have to teach, but that the person would have to be knowlklgeable in the techniques which were to be applied to deliver the various programs. Although he then distinguished the development of programs from the knowledge of how they.were to be delivered, in the Board’s view, ifa person is able to monitor a program and determine its effectiveness, it will be likely that the person will be able to determine the most effective instructional techniques to deliver the program. As monitoring and determining the best programs for specific trades was clearly within the function of an Industrial Training Consultant, the grievor should have received credit for this qualification for the purpose of determining whether he should be interviewed. Although the grievor indikated on his application that he had been a chairman of the Markham Cubs and Scouts, and of Bonspiels and Scheduling Country Club, it is not sufficient to say that the grievor had the necessary skills to put a team together and have the team work effectively. Therefore, in summary, the Board finds that the employer acted in a manner which considered the qualifications necessary for the job in an objective manner and acted fairly in considering the application against pre-determined criteria. The Board does not find that Mr. Demeris erred in his review to the extent that the grievor would have scored seven out of,the nine skills required and thereby be offered an opportunity to be interviewed. The essence of the job positing under this article is that of a competition and the grievor was unable to show that the Dated at Toronto, this 29 day of July , 1988., BXrkwood, Vice - chairper% Page 15 employer acted such that he was prejudiced or that he should have succeeded in the conqx~i~io~~ iw the interview. Therefore this grievance is dismissed. I. Free&an, ,’ A. Reistetter, .