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HomeMy WebLinkAbout1987-1934.Skagen and Glemnitz.88-10-24ONTAR EMPLOYES DE LA COURONNE CROWNEMPLOYEES DEL’ONIMIO GRIEVANCE COMMISSION DE !XTT;;MENT REGLEMENT DES GRIEFS Ilj THE MATTER OF AN ARBITRATION THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEV.~ (Edna Skagen and Kathryne Glemnitz) Before: and The Crown in Right of ~Cntai-io: (Ministry of the Attorney General) I.C. Springate. Vice Chairperson S.~ Hennessy Member n. Montrose Member For the Giievors: ._ ,L. Trachuk Counsel Cornish & Associates Barristers and Solicitors For the Employer: D. Cammaert - Staff Relations Officer Human Resources Ministry of the Attorney General .March 21, 19&iR bray 3, loaa Grievers Employer Hearings: DECISION __~. The two qrievors contend that they were unfairly denied a promotion into the position of Deputy Sheriff for the District of Alqoma. In their grievances they ask that they be placed in the position. At the hearing, however, union counsel .indicated that the union was requesting only that the job competition for the position be rerun. The person selected to fill the position of’ Deputy Sheriff was Ms. Bonnie Boston.’ Ms. Boston was in attendance on the first dayof hearing. She was advised of her right to fully participate in the hearing as a separate party, but declined to do so. Ms. Boston was called as a witness by the employer. At the time of the events giving rise. to these proceedings, Ms. Boston and the two grievers were’already employed in the office of the Sheriff of Alqoma.,,,,~ne of the qrievors, namely Ms. Skaqen, had commenced working.in the office in 1955 as a clerk. She was promoted to senior clerk in 1981. The other grievor, Ms. Glemnit.2, commenced working in t.he office as a clerk in 1962. Ms. Boston had considerably less seniority than either of the grievors, having been hired in 1981. Although, classified as a bookkeeper, MS. ,Boston had also gained experience performing the functions of a clerk. Prior to Ms. Boston being hired,. - 2 - MS. Skagen had been responsible for keeping all of the office’s books. Ms. Boston testified that it was MS. Skagen who had familiarized her with the bookkeeping system utilized in the Sheriff’s office. Although she had less seniority than the grievors, Ms. Boston did have a number of other qualifications. She had completed a series of management courses, including two accounting courses, at the Sault College of Applied Arts and Technology. Prior to working in the Sheriff’s office she had kept the books of an advertising agency, and before that had managed a dairy farm. For .four years Ms. Boston had also been an elected councillor of the Municipal Township of Macdonald, Meredith and Aberdeen Additional. She served on a number of township committees and also represented the townsh~ips on several municipal associations. Ms. Boston testified that her municipal position had given her experience in public speaking. The former Deputy Sheriff of Algoma formally retired on May 21, 1987, although he had previously been”il1 and off work for some period of time. The vacancy was posted on June 23, 1987, with a July 7, 1987 closing date. The’ competitionwas restricted to employees of the Ministry ,of the Attor~ney Gene,ral, although on a province-wide basis. The - 3 - posting advised potential applicants that the duties of the Deputy Sheriff would be to: supervise procedures related to office accounts, servic~e of process, and writs; attend at Supreme.and District Court Sittings and ensure that security is maintained; provide for the continued smooth functioning of the office in the absence of the Sheriff. -. The qualifications required for the position were listed as being as follows: A functional knowledge of,the legislation and procedures governing the function of the Sheriff’s Office is essential. Good knowledge of bookkeeping, accounting and budget procedures is required. Initiative, good organisational and supervisory skills are needed. Good communication skills are required to deal.tactfully and effectively with the judiciary, members of the legal profession and the general public. We were not advised as to the total number of employees who applied for the Deputy Sheriff’s position. Seven applicants, however, were interviewed for the position. Ms. Ruth Ann Ingram, a personnel officer with the Ministry of the Attorney General, testified that in order ‘to get an interview an least on pap~er, qualified to fill the applicant had to be, at position. __ Four applicants from the,.r\lgoma Sheriff’s 0ffic.e were selected to be interviewed, namely Ms. Boston, the two - 4 - grievors and Ms. Dorothy Buskard. The other three applicants granted interviews were based in other parts of the’ Province. The selection committee was comprised of Ms. Ingram, Mr. Dale Anderson, the Sheriff of Algoma and Ms. Fern Pratt, the local provincial court administrator. Both Ms. Ingram and Mr. Anderson testified in these proceedings. Ms. Pratt, however, did not. Mr. Anderson was initially of the view that he should not serve on the selection!committee because four employees from his office were to be interviewed. Subsequently, howeve’r, he was advised that the general. practice within the Ministry was to have the supervisor of the position to be’filled on the selection panel. Both of the grievors testified that they would have done better in the job competition if Mr. Anie’rson had not been on the selection committee. Ms. Skagen testified that she felt another Sheriff with more experience ~would have been better able to judge the accuracy of responses to questions posed during the interviews. Mr. Anderson has been Sheriff of Algoma since 1984. There is nothing in the evidence to suggest that he erred in his assessment of the factual answers given to shy of the questions. Given these. : considerations, we do not believe that the extent of 2 _ .._ ‘j:_ -5- Mr. Anderson’s experience was a valid objection to his presence on the selection committee. MS. Glemnitz testified that, in her view, Mr. Anderson should not have been on the selection committee -’ because he favoured Ms. Boston for the Deputy Sheriff’s position. Ms. Glemnitz based this claim on the fact that in M&Y, 1987, prior to the competition, Mr. Anderson had moved Ms. Boston from the general office area into the Deputy Sheriff’s office. This move also,caused Ms7 Skagen some concern. According to Mr. Anderson, the events leading up to MS. Boston’s move into the Deputy Sheriff’s off’ice began with an audit of the Sheriff’s office. The auditor discovered a number of errors with respect to the manner in which certain’ -accounts were being recorded. Mr. Anderson assigned both Ms. Skagen and Ms. Boston to properly bring the records up to date. Subsequently, however, he decided that it would be more efficient to have one person do the work anddalso prepare a report requested by the auditor. According to Mr. Anderson, he initially offered the wo~rk to Ms. Skagen, but she declined it because she felt it involved too much work for bne person. Ms. Skagen acknowledged that she, had discussed the work in question with Mr. Anderson and had advised him that it was too much for one person.to handle. Ms. Skagen indicated, however, that she had not understood - 6 - that Mr. Anderson was actually asking her to perform the work. Whatever was actually said between Mr. Anderson and Ms. Skagen, Mr. Anderson concluded that Ms. Skagen did not wish to perform the work in question and, accordingly, he asked-Ms. Boston to do so. Mr. Anderson testified that because Ms. Boston worked in an open, noisy office, while the Deputy Sheriff's office was empty, he decided to temporarily move Ms. Boston into the of~fice while she performed the work on the accounts and prepared the report for the auditor. We understand how Ms. Boston's move into the Deputy Sheriff's office could give rise to a concern on the part of others that she was being favoured for the Deputy Sheriff position. We are satisfied, however, that the move did not, in fact, reflect any bias.on the part of Mr. Anderson towards Ms. Boston; At the interviews, each candidate was asked the same series of questions. The questions were put together by MS. Ingram, who made use of a bank of questions from previous competitions. The questions were~ subsequently reviewed by Mr. Anderson, who initiated a number of changes and .~.~ additions. At the hearing,~-both of the grievors complained that the.questions failed to, cover a number of procedures they performed on a regular basis. The essence of the- grievers' complaint in this regard is that they felt they - 7 - should have been asked more questions relating to the job functions they were currently performing. The qrievors were not, however, being interviewed for their current jobs. They were being interviewed for a different job withy somewhat different responsibilities. Having reviewed the questions asked of candidates during the interviews, we are led to conclude that they were not inappropriate for a competition for the Deputy Sheriff’s position. Each interview lasted for about 45 minutes.~ The committee members discussed each candidate’s re,sponses to.‘the questions after he or she had~ left-the room,.particularly insofar as the acceptability of their responses to certain technical matters were concerned. The responses were then scored and the three final scores averaged. Ms. Boston came first with a score of 82. An unidentified individual came second with a score of 76. Ms. Glemnits ranked fourth with a sco,re of 69 and Ms. Skagen’came sixth with 56. The selection committee had previously set a minimum acceptable score of 62 _~ to 65, with the understanding tha~t persons scoring below this range would not be considered further for the position. Ms; Ingram testified that the candidates who scored above the .I ~. minimum, which group did~ not include Ms. Skagen, were considered. The only.detail we we.re provided with concerning the nature of such,a consideration came from Ms. Ingram. She testif i ed that a concern was raised about the fact that the - a - second ranked candidate was a senior employee whose score was relatively close to that of Ms. Boston and who might grieve if Ms. Boston were selected. Ms. Ingram testified that this ceased to be a concern on her part when Mr. Anderson indicated that he was comfortable with the selection of Ms. Boston. There is no question but that Ms. Boston did considerably better in the intervi:ews than did the qrievors. In part, this was because she had carefully prepared for her interview. After reading the job posting, she made a point of assessing what requirements for the job she was familiar with, and which ones she was not. Ms. Boston then studied those areas she was not familiar with. This included a review of a number of statute~s and rules of procedu,re. As a witness in these proceedings,..Ms. Boston came across as an articulate knowledgeable individual. Presumably she also did so during her interview. .., For their part, the grievors had some difficu ./ ,ltY with a number of the questions put to them during their id not fully interviews. Ms. ~Skaqen testified that she d understand certain of the questions and that she could have answered other questions more in retrospect fully. On one . . . .’ - 9 - question meant to test her communications skills, Ms. Skaqen scored 0 out of a possible 6 points because she could not. recall any situation where she had dealt with someone who was being unreasonable. Logic suggests, and Ms. Ingram confirmed, that no one can work in a Sheriff’s office for any pe~riod of time without meeting an unreasonablemember of the public. Ms. Glemnitz testified that she also had not ~ understood certain of the questions. She indicated that she felt that she had answered certain other questions very well, although the members of the selection committee had failed to appreciate that such was the case. Notwithstanding the qrievors’ concerns about the interview process, we are. satisfied that the interviews were run fairly and that the scores assigned to the qrievors’ responses were, in fact, a reasonable reflection of how well they did during their interviews i The members of the selection committee did not review the “corporate” personnel files of the applicantsi~. Mr. Anderson testified that he did look at the.local personnel files for the employees from his office, but they ‘~contained no performance appraisals or disciplinary records. He further indicated that he had never submitted any such material for the corporate files. The selection committee did not have before it any written reports from the - 10 - supervisors of the various candidates. Ms. Ingram did discuss with the other members of the committee two of the candidates from other parts of the province she was familiar with, while Mr. Anderson talked about the four applicants from his office. The evidence of Ms. Ingram and Mr. Anderson indicates, however, that there was no attempt to review the past job perfo,rmance of the candidates in any systematic way or to rank the candidates on the basis of their past performance. In addition, there is nothing in the evidence to suggest that consideration was:qiven to the issue of whether the past work performance of an applicant might offset, at least to some degree, a poor showing in the, interviews. The relevant provision in the collective agreement is Article 4.3, which provides as follows: ~. 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. The Board has dealt with this provision on a number of occasions. Perhaps the leading case is that of Quinn 9/78 (Prichard), where the Board discussed the employer's obligations in a competition as follows: - 11 - the employer must employ a process of decision-making designed to consider the relative 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 abilities of the competing applicants. . . . fn order to fulfil1 these obligations, the employer must design and utilize a selection process in job competitions that is consistent with the purposes of the selection process. Thus, under this collective agreement, the process must be designed to elicit in a systematic manner sufficiently comprehensive information about each applicant relevant to the qualifications and ability required to perform the job-in order that a fair and reasonable assessment of the relative strengths of the candidates can be undertaken and the final selection made. In subsequent cases, the Board developed a number of specific criteria by which to judge a selection process. These were set out in Christmas and Chaput 0907/86, 0908/86 (Gandz) as’ follows: 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 is possible. For example, interview questions and evaluation forms should cover all the qualifications. 3. 4. 5. 6. - 12 - Irrelevant factors should not be considered. All the members of a selection committee should review the personnel files of all the applicants. The applicants’ supervisors should be asked for their evaluations of the applicants. Information should be accumulated in a systematic way concerning all the applicants. Failure on the part of the employer to follow the criteria set out above will not necessa~r’ily result in the results of a competition being set aside. For example, in Moore 1051/86 (Watters), the members of the selection committee did not consult with the supervisors of candidates as part of the selection process. On the basis of the relative merits of the candidates, however, the Board concluded that any insights of the supervisors would not have altered the result of the competition. In the result, the Board did not disturb the committee’s decision. Employer counsel contends that likewise in the instant case, any defects in the selection process did not affect.the fina~l result. We are not so certain. Both the grievers had long service in the Sheriff’s office, much longer than Ms. Boston. The range of duties performed by the grievors, particularly Ms. Skagen, matched if not exceeded - 13 - the duties performed by Ms. Boston. Mr. Anderson was in a good position to evaluate the job performance of the grievers in recent years. While he did discuss the grievors and Ms. Boston with the other members of the selection committee, however, he did not assess their past performance in any systematic way or seek to rank them. Further, the evidence indicates that except for a second look at the second ranked candidate, the selection of Ms. Boston was based solely on the fact that she had scored highest in the interviews. Had the grievers' past experience and Mr. Anderson's views concerning the manner in which they had carried out their duties been weighed 'along with the interview results, it is possible that the final result might have been different. Further, while Mr. Anderson had not forwarded any material for inclusion in the grievers' corporate personnel files, it is possible that over the years-one or more of his ..~.. predecessors had done so. Any such mater~ial should have'been taken into account by the selection committee. By way of this decisibn, we do not mean to detract from Ms. Boston's qualifications. It is quite possible,that had the selection committee considered supervisors' evaluations as well as candidates' personnel files, the result of the competition may have been the same. There is sufficient doubt as to whether this would have been - 14 - the case, however, that we are satisfied that the selection of MS. Boston should be set aside. Accordingly, we direct that the competition for Deputy Sheriff be rerun. The employer is to establish a new selection committee, none of‘ whose members served on the earlier committee. This new committee is to choose between those of the original applicants considered to have the qualifications for the job who are still interested in the position. In addition to interviewing the ~individuals in question, the committee members are to review the personnel files of the applicants, and to consult with at least one supervisor familiar with the work of each candidate. They are then to consider all.of the information they obtain intheir deliberations. The new selection committee is not to take into consideration any -‘-; experience gained by Ms. Boston subsequent to her selection as Deputy Sheriff. DATED at Ajax, Ontar ,io this~ 24th day of October, 1988. I. Springate, Vice-Chairperson