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HomeMy WebLinkAbout1987-2253.Woods.89-01-15I ONTARlO EMPLOY& DE LA CO”RONNE CROWN EMPLOYEES oEL’ONT.4RIO GRIEVANCE COMMISSION DE SElTLEMENT RkGLEMENT BOARD DES GRIEFS Between: Before: For the Gri:~vor: .2253/87 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT before THE GRIEVANCE SETTLEMENT BOARD For the Emp. oyer: .- Hearings: OPSEU (M. Woods) and The Crown in Right of Ontario (Ministry of Transportation) M.V. Watters P. Klym L. Turtle I. Roland Counsel Gowling & Henderson Barristers and Solicitors Vice-Chairperson Member Member K. Cribbie Staff.Relations Advisor Human Resources Branch Ministry of Transportation April 26, 1988 November 28, 1988 Grievor Employer This proceeding arises from the grievance of Mrs. Marilyn Woods dated November 23, 1987. The grievor claimed therein that she had been unjustly denied a promotion to the position of Senior Accounts Payable Clerk in the Willowdale Office of the Ministry of Transportation. The position sought was classified as OAG 8 (formerly Clerk 4). At the time of the competition, the grievor was employed in this same office as an Accounts Payable Clerk, which position was classified as OAG 6 (formerly Clerk 3). The Willowdale office houses the Payroll, Budget and Accounts Payable sections of the Administrative Services Division. All three of these sections have a similar structure. Each has one supervisor who is responsible for the work of several clerks. They are assisted in this task by a senior clerk. It is the senior clerk position in the Accounts Payable section which forms the subject matter oft this dispute.. All of the sections aie located on the “open concept” obstructions w i sections could the office. same floor in what might be regarded as a 1arg.e office. . Despite the existence of certain thin the 0ffic.e area, staff within the respective generally obse’rve what was taking place throughout The competition in this instance, subject to certain. exceptions noted below, folloved the normal course; that is, a posting was circulated; applications were received and screened; questions and suggested answers were prepared; interviews were conducted by a panel of three persons; answers were recorded and assessed; and ultimately a candidate was selected. The panel which administered this competition was comprised of Peter Martin, Head of Financial Services; Cathie Rogers, Supervisor of the Budget Section; and Larry Moore, Supervisor of the Payroll Section. Dave Douglas, Supervisor of the Accounts Payable Section, was originally to have served on this panel. He asked, however, that he be replaced on same when he discovered that a relative had applied for the position. His replacement was Mr. Martin. From the evidence presented, it seems that these section supervisors rotated periodically through the sections. In the course of their tenure as supervisors, both Mr. Moore and Ms. Rogers had apparently supervised both the grievor and the incumbent. The questions asked of the ten candidates who were accorded interviews fell within three general categories, these being interpersonal, leadership and technical skills. After all of the interviews were completed, an average score was determined for each module atid a weighting factor was then applied. The interpersonal, leadership and technical skills questions were weighted at ten, six, and four respectively. The final scores -;- for the top three candidates 554; D. Power - 532; and Mar out of a total of 680 marks. were as follovs: ilyn Woods’ - 458. A comparison of Patricia Chapman - These acores were the scores given to I Ms. Chapman and to Mrs. Woods discloses that the former received the higher score from every panel member in respect of each of the three modules. There was, however, some variation in the individual marks assigned for specific questions. At the time of the competition, Ms. Chapman was working in an acting capacity as the Senior Accounts Payable Clerk in the Accounts Payable Section. She had been in this position for approximately three months. For the previous fifteen years, she had rotated through the three financial sections referred to above. The grievor, as noted, was similarly stationed in the Accounts Payable Section at the time of her application for the position which is the subject of these proceedings. Her resume discloses that she had also gained experience in the Budget Section. For a three month period she had acted as a Clerk 4 in this latter section. The grievor had also been employed by the Ministry of Community and Social Services prior to obtaining employment with the present employer. While it is not entirely clear from the documentations filed with this~bosrd, it was agreed by the parties that Ms. Chapman had approximately six to seven more years of seniority than the grievor. -3- The grievor’s complaint with.respect to the competition was two-fold. Firstly, it was alleged that Larry Moore and Cathie Rogers were biased towards Ms. Chapman and that their personal preference made it impossible for them to render an objective assessment. While the grievor did not dispute the recording of her verbal answers onto the answer sheets, it was suggested that her responses were graded lower than those of Ms. Chapman, notwithstanding that “they were on the same level”. Secondly, it was submitted that the competition was fatally flawed as a consequence of the panel’s failure to review personnel files and to engage in a meaningful exchange with the grievor’s supervisor. For these reasons, the Board was requested to order a re-run of the competition. The evidence relating to bias was presented by the grievor and by Mrs. Helen Reijers. This latter employee has worked in the Willowdale office since 1981. The evidence may be summarized as follows: (i) The grievor claimed that Ms. Chapman did not properly sign in on arrival at the workplace in the morning. She stated that on one occasion, Ms. Chapman had indicated an 8:00 a.m. arrival when, in fact, she did not attend at work until 8:45 a.m. The grievor testified that over the period of nine years, she had observed several instances of similar conduct. Mrs. Reijers stated that she had observed late arrivals on two occasions. (ii) Similarly, the grievor alleged that Ms. Chapman did not properly sign out if leaving the office before the end of the day. It was her opinion that Ms. Chapman’s, job did not require her to leave the building. She seemed to assume from this that a supervisor’s consent had not been obtained prior to the departure. The grievor -lb- testified that this type of conduct occurred frequently. Mrs. Re~ijers stated that she had heard “rumors” of this situation and that she had once observed Ms. Chapman leaving the office without first making the required notation in the log book. Mrs. Woods testified that within the past year She regard to Mr. Moore. At Mr. Moore allegedly rep1 i liberties. Pat is my ft i in her evidence that she Moore did not like her. mentioned her concerns in this the end of their discussion, ed: “Pat does not take any end”. The grievor indicated had reason to believe that Mr. She had no idea as to why this might be the case and conceded that he had never verbalized such a dislike. (iii) Both the ~Srievor and Mrs. Reijers testified that they (iv) (VI frequentl; observed Ms. Chapman conversing with Mr. Moore at the latter’s desk during~ working hours. The grievor stated that these exchanges were upwards of fifteen minutes in duration. Mrs. Reijers estimated the length of the conversations as between forty-five minutes and one hour. It was suggested by the grievor that other Clerk 3’s did not similarly engage in this type of exchange with the supervisor. Indeed, she stated that Ms, Chapman “is a unique woman” and that “she is treated differently from the rest of us”. The grievor agreed that for part of the period in which these observations were made, Mr. Moore was serving as Ms. Chapman’s supervisor. The grievor stated that she frequently observed Ms. Chapman and Mr. Moore sitting together at office functions of a social nature. She also referred to one instance in which the two employees did not report back to work after the conclusion of a Christmas Party. The grievor and Mrs. Reijers observed that Ms. Chapman and Cathie Rogers were also friendly to one another and’that they often conversed together at the latter’s desk during working hours. This was stated by the g~rievor to be a “frequent occurrence” lasting between fifteen and twenty minutes. Mrs. Reijers suggested that these sessions lasted “the better part of the afternoon“. Again, the board was told that other clerks did not engage in this type of conduct. Mrs. Woods did ,agree that Ms. Rogers was acting as Ms. Chapman’s supervisor at the time certain of these observations were made. These witnesses also noted that Ms. Rogers and Ms. Chapman regularly took their lunch together. The grievor estimated that this occurred approximate~ly once per week. As with Mr, Moore, the grievor suggested that Ms. Rogers did not like her. We were not given any reason for this -5- . opinion other than it being “a’ gut feeling”. (vi) The grievor alleged that Ms. Chapman was not assigned the same volume of work as were the other clerks in the office. It appeared to her that Ms. Chapman did not receive any complex or time-consuming work. She advanced the assessment that the incumbent had a “lighter desk” in comparison to hers and those of other clerks. Mrs. Reijers further alleged that Ms. Chapman was promptly transferred when such was requested. She complained that she had not received the same sort of treatment with respect to a request to move into the Budget Section. Such request, in her opinion, was not handled expeditiously. (vii) Initially, the grievor stated that she was unaware that Ms. Chapman was experiencing problems at work. In her estimation, Ms. Chapman “seemed to be doing quite well”. The grievor subsequently testified that she did know that Ms. Chapman had an attendance problem. While she did not know if the discussions between the incumbent and her supervisors, as.described above, were related to this issue, she conceded that it would not be unusual for an employee to meet with their supervisor over such a concern. Mr. Martin, who served as chairperson of the panel, expressed the opinion that both Mr. Moore and Ms. Rogers were objective in their assessment of the respective candidates. It is to be noted at this juncture that the grievor did not perceive Mr. Martin as being biased against her. Rather, she agreed that he wss a “fair man” and that he could legitimately have formed the opinion that he,r answers were not the equivalent of those given by Ms. Chapman in respect of each of the three modules. Mr. Martin testified that he personally scrutinixed all of the answers and scores following the competition and concluded that the scoring was fair, in that it was not directed in favor of any one candidate. He agreed that there was a disparity between the marks given by each of the three panel members. He was not -6- . . unduly surprised by this as he considered such to be a natural variation of opinion within the panel. Mr. Martin indicated in his evidence that he did not have any knowledge as to the existence of a special relationship between Ms. Chapman and the two supervisors. Specifically, he had never been apprised by either supervisor that Ms. Chapman either arrived late or departed early. Similarly, he was not personally aware as to. whether Ms. Chapman sat at their desks and conversed during business hours, nor as to whether she frequently had lunch with Ms. Rogers. He candidly stated that if he had known that Mr. Moore was a personal friend of Ms. Chapman, he would have asked him if he should remain on the panel. Additionally, Mr. Hartin was unaware if Ms. Chapman was given difficult or complex work. He had previously been involved with her, however, to ensure. that she did in fact have a full day’s work. This involvement occurred when he first arrived at the Central Region ata time when Ms; Chapman was experiencing some di fficulty with her level of attendance. Lastly, he noted that in respect to Christmas parties, employees were permitted to use their vacation credits if they.wished to stay longer than the alloted time of Hr. Martin testified that he did not necessarily expec employees.to return to work from such a function. two hours. t all MS. Chapman was celled as a ‘witness for the employer. She vigorously denied that her success in the competition was premised on a personal relationship with Ms. Rogers or Mr. Moore. -7- Rather, she attributed her success to the considerable preparation undertaken in advance of the interview. This included a review of the job description and the accounting manual. MS. Chapman denied the allegation of late arrivals and early departures. She described herself as “not being a late person” and stated that if she left early, such was related to the WO” 1 de1 i the business of the employer. Ms. Chapman indicated that she d routinely leave the office if engaged in the collection or very of .documents, the collection of pay checks or work in Tender Office or Stock room, both of which were located in other premises. It was her evidence that all such efforts were done pursuant to the instruction6 of her supervisors. Ms. Chapman also noted that she may have left the Willowdale office early in order to attend medical appointments. She conceded that on occasion she may have forgotten to sign in or out, but not to the extent alleged by the grievor. Hr. Chapman admitted that she was friendly with both of the supervisors on the panel. However, she limited such friendship to the workplace and stated that the exchanges alluded to by the grievor were all work-related or occurred during a break period. Lastly, she indicated that it the time taken was her practice to use vacation credits to extend for social functions held w ithin the office. Mr. Martin testified that the panel did not review the personnel files of the candidates. He stated that members were well acquainted with the top five emp the panel loyees. Mr. -8- Martin further noted that the two supervisors on the panel and Nr. Douglas, the supervisor of the Accounts Payable Section, were asked for their assessment as to the positioning of the candidates after the interview. Specifically, they were leach requested to comment on same. Mr. Douglas apparently restricted reasonable”. He did not volunteer any ~ his reply to “No, it seems further thoughts vis a vis MS. Chapman. Mr. Martin a 1 the work performance of the grievor or so asked all of the supervisors whether any effect should be given to the previously experienced by Ms. Chapman. A emphasis should be placed thereon, as her had improved. attendance problems 11 replied that no record in this regard The board, after considering all of the evidence presented, is unable to conclude that bias has been established in this instance. We find the evidence of the grievor and Mrs. Reijers to be highly speculative in nature. We think that most of the questions raised therein have been adequately responded to by Ms. Chapman. While it is clear that Ms. Chapman was more friendly towards Mr. Moore and Ms. Rogers than was the grievor, the board does not adjudge that such friendship in the workplace materially influenced the result of the competition. Simply put, there is insufficient evidence to allow us to abrogate the competition on the grounds of bias. In this regard, we have compared the answers given by both candidates and the scores assigned to same by the members of the panel. While the scoring -9- does reflect some considerable variation between individual panel members, each in the final analysis found Ms. Chapman to be superior in terms of all three modules. Our review of the scores assigned does not suggest a manipulation of the assessment process for purposes of coming to a pre-determined result. We are inclined to accept Mr. Martin’s explanation for the internal variation as found in this case. While not conclusive in any sense, the board notes that the grievor on certain questions scored higher, or at the same level, as did Ms. Chapman, It is the second argument of the union that has given us the most difficulty. As previously stated, it was counsel’s submission that the competition was fundamentally flawed given the failure of the panel to review personnel files and to engage in a meaningful consultation with supervisors. There is no doubt in our minds that generally competition panels should resort to personnel files and candidate’s supervisors in comings to a decision as to the relative merits of those applicants interviewed. Numerous panels of this hoard have imposed this requirement in order to assure that a full assessment is made as to the applicant’s qualifications and ability to’perform the required job duties. Such a course of action will-also ensure, to the extent possible, that a candidate will’not be prejudiced~ in terms of their right to claim a benefit arising from greater seniority. An employer who fails to engage in this type of process and-who relies exclusively on the interview to determine -lO- success within the competition is taking a substantial risk that this board may ultimately set aside the competition should its result be contested. Competitions were recently set aside for this reason in both Clipperton, 2554-87 and Sahata, 2238-87. The issue facing this board, therefore, is whether ve should order a re-run of the competition for the reasonscited above. After considerable reflection, we have concluded that we should not so order i n this case. We have not been persuaded that a review of the grievor’s personnel file or a more meaningful consultati on with supervisors would have resulted in her being successful in this competition. There was no evidence before us to suggest that such information would have materially augmented the information that was already before the panel. As stated previously, this panel was well acquainted with the two candidates in question. From our assessment of all of the evidence relating to the qualifications and ability of both Mrs. Woods and Ms. Chapman, we think that at most the additional information would have led to a situation of relative equality. This would not have been helpful to the grievor in that as the junior employee she would have had to demonstrate that she was superior in qualifications and ability to Ms. Chapman. In view of the differential between their scores in the competition and -11- Ms. Chapman’s longer period of experience in the Willowdale office, we do not believe that resort to the personnel files or the supervisors would have established the grievor as the superi~or candidate. In this respect this case is distinguishab from Clipperton and Sahota as the claim of Mrs. Woods was not le that of a senior employee alleging they were by-passed in favour of a junior candidate. Such an employee merely has to show that they are relatively equal to the incumbent. Barring some unususl circumstances or overriding considerations, such an employee would be entitled to the position. As stated, this is not the factual situstion presently before this board. We further note that the grievor in cross-exsminat i on conceded that Ms. Chapman had more knowledge than her of the subject position at the time of the competition. She stated the job, she could do it “as we 1 the further opinion that if given 1” as Ms. Chapman. In summary, we are disinclined to order a re-run in circumstances where we do not find it conceivable that the grievor could demonstrate superiority vis a vis the ability and 1Y that the qualifications of the incumbent. Viewed different perspective, we have been unab from a slight le to conclude -12- grievor was prejudi ted in a material sense by the flavs existing in the competition process. For all of the above reasons, the grievance is therefore denied. Dated at Windsor, Ontario, this 25day of January , 1989. IM,‘~NiI i’. LLJti!., -- M. V. Watters, Vice-Chairperson -13-