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HomeMy WebLinkAbout1987-2571.Glover.88-11-16IN TRR MATTER OF AN ARBITRATION Under THE CROWN EMPLOTEBS COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Roy Glover) Grievor -and - The Crown in Right of Ontario (Ministry of Correctional Services) Bmployei Before: For the Grievor: A. Barrett G.L. Caplan D.C. Montrose Vice-Chairperson Member Member A. Ryder Counsel Gowling Sr Henderson Barristers and Solicitors For the 'EmDlover: G.F.J. Lee Senior Staff Relations Officer Staff Relations Branch Ministry of Correctional Services Hearingsi June 22, 1988 September 19, 1988 i , ‘: This is a job competition grievance wherein the grievor alleges that he was relatively equal in skills and qualifications to the incumbent Serge Bastien and because of his greater seniority should have been awarded the job of Construction and Maintenance Carpenter at Monteith Correctional Centre. Article 4.3 of the collective agreement covers job competition and is quoted below: "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 grievor whose regular job was Maintenance Mechanic 2 at Monteith had been acting Construction and Maintenance Carpenter for about 15 months prior to the competition. For about half of those 15 months the grievor was off sick and in fact he was on sick leave at the time he attended the competition " in December 1987. There were four applicants for the job, three of whom were from within the Ministry and one person from outside the Public Service. It was the outsider, Serge Bastien, who got the job. Mr. Bastien's overall score on the written and oral competition was., 105 and the grievor's was 61. Putting him in ; fourth place of the four applicants. The Union has several complaints about the way in which .this competition was run. First, the Union says the-job was not properly posted pursuant to Article 4.1 Of the collective agreement which requires that vacancies be "advertised". On the evidence the job was advertised in the government publication - a - "Topical" and on a local radio station. There was no job posting in the employer's file which indicates that the job might not have been posted within the correctional facility. This objection would be weightier if the grievor had not found out about the job until it was too late for him to apply.for it. However he did see it in the "Topical" and applied in a timely fashion. Therefore we will not deal with the issue further. Secondly, the Union says that the written and oral tests did not truly reflect the requirements of the position in qbestion. The grievor testified that the job is mainly maintenance and repair work, while the test was more appropriate for construction carpentry. Also certain components of the job 3 such as,supervision of inmates, lock repairs and first aid were not dealt with at all in the tests, or only peripherally. Thirdly, none of the members of the selection panel was a carpenter or'had any particular knowledge of carpentry. On the evidence the questions were compiled from two sources. Mr. Larche, the Deputy Superintendent, obtained a test from the Thunder Bay Correctional Institute and used some questions and prescribed answers from that test. He also consulted the l&al high school carpentry teacher who provided some questions and answers from the high school ~text book. None of the selectors had the ability to assess an answer which was outside the pre- stated answers which may have been alternatively or nearly correct. I - 3 - The next objection deals with the matter of performance appraisals. The board members had a performance appraisal for the grievor covering the period September 1982 to September 1984, but nothing more current. The grievor thought a performance appraisal was done on him while he held the job as acting Construction and Maintenance Carpenter but he lost his copy. Management says that no such appraisal was performed. Subsequent to the competition an appraisal was completed on May 26th, 1988 by Mr. Larche covering the period May 22nd. 1987 to $May alst, 1988. On that review in many .of the areas for aasessment the notation was. made: "Unable to assess through blameless absenteeism". The final employer comment made by Mr. Larche on the appraisal reads: #? "During this P.P.R. period Ray was off for an extended period of time, making it difficult to rate him while in an acting position as Maintenance Carpenter. Since his return to work to his position as-Maintenance Mechanic 3 it appears that he is getting along fine but a classified Maintenance Supervisor would have more input in the P.P.R. process. Since his returnFebruary 0th his health is better and his attendance is very good". The best person in the Institution to. judge Mr. -. Glover's competence on the job as 'Construction and Maintenance Carpenter would have been the Maintenance Supervisor, Mr. Roskie. Unfortunately for all concerned, Mr. Koskie went on long-term sick leave in September 1986 and therefore was unavailable to provide a performance assessment of Mr. Clover or to sit on the selection committee, as he would have done had he been there. / i - 4 - Thus the selection panel had no real knowledge of Mr. Clover's level of Performance while in his acting capacity. We are urged to infer, however, that his performance was satisfactory or he would not have been kept on for such an extended period of time. In addition, the Union says that the selection panel should have made allowances for Mr. Glover who had just recently undergone surgery and was on painkilling medication at the time of his interview and 'test. On all of the evidence we find that Mr. Glover did not bring this matter to the attention of the selectors at his interview 'as it was certainly his responsibility to do if he did not feel up to the test or interview. At the hearing we reviewed Mr. Bastien's application and curriculum vitae and heard evidence as to his extensive experience as a carpenter from the time'he was a child and began ' working with his carpenter father. He scored significantly better on both the written and oral tests and is clearly well qualified for the job. The Union suggested there was a possibility of bias in the selection of Mr. Bastien because he was previously known to one of the selectors, Mr. Larche. as one 'of the carpenters -who helped build his new home just prior to tie competition. The Union suggests that the reason the test questiwns were weighted to construction carpentry rather than maintenance carpentry was because Mr. Bastien was clearly more experienced in this area. The Union also questions why Mr. Bastien was given a perfect mark for attendance as opposed to the - 5 - grievor's poor mark when all it had to go on was comments from two prior short-term employers of Mr. Bastien whose standards of required attendance are not known. We do know, however, that the grievor had a very poor attendance record for the year and a half before the competition, due to illness. We do not find in any of these suggestions any evidence of bias in favour of Mr. Bastien. The fundamental. flaw in this competition is that neither the selection panel, nor we 8s~ board members reviewing its decision, has any real knowledge of the grievor's capabilities 'while working on the job in his acting capacity. During his cross-examination Mr. Glover was shown pictures of a photocopying room in the institution which had faulty cupboards ,* built into it. hr. Glover conceded that he and a helper and an inmate were responsible for the job but said that he did not really supervise it while it was being done. The inmate and the helper did the job wrong and when Mr. Glover discovered it he did not correct the job due to lack of time. Also, despite Mr. Glover's insistence that very little new construction took place at the facility, he conceded that both a greenhouse and a main work party building were constructed during his term'as acting Construction and Maintenance Carpenter, but while he Was absent due to illness. The only other carpenter at the facility is an instruction carpenter who teaches the inmates and the grievor says that he normally oversees the construction of new buildings. However, with the exception of the faulty cupboards - 6 - in the photocopying room, we still do not know how competent Mr. Glover was on the job. Nor in our opinion was the selection panel in a position to assess his competence during his acting term. In a competition grievance under this collective agreement the onus is on the Union to show that the grievor is relatively equal. However, where the grievor shows that he has done the job in question for some time, an evidentiary onus arises which the employer must satisfy to show that his performance on the job was less than satisfactory (see Consumers Glass Co. Ltd. v Aluminium, Brick & Glass Workers. Local 269 (1986); unreported: Shime). .1 We have reviewed the jurisprudence of this board regarding the criteria for proper job competitions including Marek No.414/83; No.339181; Cross Strands No.88/83 and Anderson No.105/86. We agree with the statement of the board in Cross that "Contrary to the theory that the entire onus is on candidates, the real onus to make a correct decision is on the selection board .,... The crucial question is whether the rather ; inadequate methods of personnel selection in this case were such as to cause what might be called a *miscarriage of justice*.” In this case we are forced to the conclusion that a miscarriage of justice x have taken place. We do not know, and find that the selection panel did not know, how well Mr. Glover actually performed the job in question. We also have a very - 7 - serious concern that no trained or experienced carpenter was on the selection panel to assess answers that varied from the prescribed answers. On all of the evidence we are not able to say whether or not Mr. Glover was relatively equal to Mr. Bastien and the blame for this must fall on the employer whose duty it is to properly evaluate and assess the candidates. Accordingly a n&w competition must be held before a different board of selectors, one of whom must be knowledgeable in carpentry. The questions asked of the candidates should more fully reflect the actual',job duties. Thirdly, the selection panel should have before it evidence of Mr. Glover's actual. job performance during his acting assignment. All four of the ,? original candidates will be entitled to apply for the job and so far as is humanly possible each shall be assessed on his abilities and qualifications as of December 1987.. The only exception to that injunction is that Mr. Glover's attendance record after December 1987 may be looked at to determine whether or not there has been any change in his ability to maintain -, ; - a - regular attendance because of health reasons. We agree that regular attendance is a relevant and important consideration, in particular with a one-incumbent 'job. DATED at Toronto this 11th day of October, 1988. AhWE BARRETT Vice Chairperson !; i ,' I '\. ,'iP I. (~ :~ 's.. < ,< , G. CAPLAN Union Member i - 8 - regular attendance because of health reasons. We agree that regular attendance is a relevant and import.ant consideration, in particular with a one-incumbent job. DATED at Toronto this 16th day of November, 198:8. ANNE BARRETT Vice Chairperson ii,‘,. , / j /I i , ‘L T-C .‘. / ‘? ‘L < ,’ A,~ G. CAPLAN union Member :? D. MQI$TROSE Employer Me .