HomeMy WebLinkAbout1987-2573.Loconte.88-02-27SETTLEMENT RkGLEMENT
DES GRIEFS
Between:
2513/W
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
oi?sx:: I KarlI Loconte )
- and -
Grievor
T!le crown in R:ght of Ontario
(Ministry of Culture & Communications) Employer
Before:
For the Grievor:
For the Emplover:
Hearlncfs:
D. Fraser Vice-Chairperson
:. Thomson Member
E. orsini Member
Laura Trachuk
Counsel
Cornish hr Associates aarristers & Solicitors
vi~ola ?$a:nass
Staff Relations Officer
Staff Relations Rranch Management Board of Cabinet
August :a, 39, 22, 1900
November 4, 7, S, :998
2
The Grievor, Karin Loconte, is a Graphics Designer, classified as
Dthibition Designer 1, and she has worked for the Ontario Science Centre since
1974.
On October 26th, 1987, the employer posted competition #0X-34/87 for the
position of Intermediate Graphics Designer, classified as Exhibition Designer
2. That posting contained the following duties and qualifications:
Wnmnary of Duties
Required by the Design Department to produce advanced
graphic designs in two dimensional media for exhibits,
and to provide co-ordination of activities of junior
designers.
Qualifications
Graduation from a related professional design program or
equlvalent in education, training and experience.
Several years progressively responsible exhibition
graphics design experience, with proven ability to
propose solutions to complex design problems. Group leadership skills, with ability to provide technical
guidance and direction to junior designers, drafters,
etc. Effective communication and interpersonal skllls, with ability to co-operate with others on an
interdisciplinary train. Knowledge of and interest in
communicating science concepts. Initiative. Ability to
interpret blueprints and specifications.”
Three applicants were interviewed, including the Grievor, Rebecca Proctor
(normally referred to as T!ecky”), and a designer by the first name of Cairine.
At the time of the competition, all were classified as Exhibition Designer 1.
As a result of the competition, which included a review of files and references
as well as the interviev, the position was awarded to Becky Proctor. Ms.
Loconte subsequently grieved, alleging that she had been denied the position in
violation of Article 4 of the collective agreement, and requesting that she be
given the position as of the date Ms. Proctor was appointed to it.
3
It is agreed that the Grievor is senior to the incumbent, Becky Proctor,
and that Article 4.3 of the collective agreement would accordingly require that
if the.qualifications and ability of those two candidates were in fact
relatively equal, the job would go to Ms. Loco&e by seniority.
Counsel for the union has submitted that the grievor's qualifications and
ability are superior to those of Ms. Proctor, but the competition failed to
elicit thls superiority and was fatally flawed in a number of respects, which
we shall summarise at this point. Bias is alleged on the part of two of the
panel members for the interview and consequent assessment, and it is proposed
further that they influenced other panel memb&s. Those two are Mr. Peter Sit,
Manager of the Graphics Design Department and the Grievor's immediate
supervisor, at the time of the competition, and Mr. Jerry Krause,'Chief of
Design, and hr. Sit's immediate supervisor. Mr. Sit has since left the employ
of the Ontario Science Centre. The other two panel members were Ms. Diane
Wallace, a Personnel Consultant with the Centre on a part-time basis; and Ms.
Luigia DeDivitiis, Manager of Instructor-Researchers at the Centre.
In addition to the allegation of bias, it has been submitted that as only
two members of the panel (Sit and Krause) were designers, it had insufficient
expertise to assess the design ability of the applicants. Furthermore, the
questions asked at the interview were inappropriate in that they focussed
heavily on leadership and interpersonal relationships, a minor part of the job,
to the detriment of design skills, which are a major part. They were also
drafted to give preference to the non-successful candidate. Finally, some
members of the panel had been led to believe the job was primarily
administrative, a view supported neither by the job posting, nor the position
specification for the job.
4
Counsel for the employer denied each of these allegations, submttting
that there was no bias, that the criteria were valid and appropriate, as were
the questions and subsequent assessment of the responses. Consequently the
resulting scores in the competition which showed the Grievor coming a clear
third, constituted a fair and reasonable assessment which shows that there is a
substantial difference between the qualifications and ability of the Grievor,
and those of Ms. Proctor.
Thus were the issues joined, but there are further background matters to
review prior to considering the main body of the evidence. The first is the
question of the’position specifications, which has some peculiar aspects to it.
The earlier position specification, for the position of Intermediate Graphics
Designer, with the class allocation of Exhibition Designer 2, has an effective
date of September lst, 1982. It was succeeded by a re-drafted position
specification which bears the effective date of November Ist, 1987. The
competition in question was posted on October 26th, 1987, and closed on
November 6th, 1987, and thus the second position specification came into effect
during the posting.
The second position specification was, however, drafted by Mr. Sit and
Mr. Krause rJrBna: to the posting, and both the posting and interview questions
were based on that latter document. Parts 3 and 4 of the first and second
position specifications read as follows:
(The position specification effective September lst,
1982)
3. SUMMARY OF DUTIES AND RESPONSIBILITIES (Indicate percentage of time spent on each significant
function, indicate scope, equipment, working conditfons unusual features etc.)
.
‘I 1
5
1. Produces designs and/or graphics for exhibit areas, specific exhibits, or exhibit components
on own or as part of a production and development
team by performing duties such as: -
85%
- initiating new exhibit ideas, proposals,
concepts through discussions with other
Centre design staff, outside consultants
and through research;
- suggesting improvements to existing
exhibits or exhibit graphics, by observing
on floor conditions and problems, designing
approved changes;
- preparing designs and.graphics of exhibit
shows in co-operation with audio-visual
personnel, e.g. the Franklin Diorama in
North Area of Canadian Resources Mezzanine;
- assisting senior designers with layout
design for Exhibition 1~11s by providing
suggestions or proposals;
- designing and co-ordinating the
construction of specific exhibit, exhibit
areas, or the production of Special Shows
(i.e. Centre’s Birthday Show, Christmas
Show);
- evaluating exhibit idea possibilities by
reviewing communicative effectiveness, cost
and time for specific exhibits;
- co-operating with other members of production team or other section personnel
in production of exhibit copy.
2. Provides coordination/guidance and assigns work tc
15% - assigning projects to Designers, Drafters
for production of designs, graphics, for
exhibits or exhibit components, providing
technical guidance and direction,
suggesting solutions to design problems or
alternatives or referring to supervisor.
4. SKILLS AND KNOWLJIJXE REQUIPRD M PEPFORM THE WORK
education, training, experience etc.)
Graduation from a school of Art and/or Design; several years acceptable experience in the design
field; ability to convert ideas into two or three dimensional drawings and working models; ability
to co-operate with co-designers and others in
field of education and science to produce new
design ideas and concepts.”
) other staff:
(state
6
(The position specification effective November I.&, 1987)
3. Duties and related tasks (what is employee required to do, how and why? Indicate percentage
of time spent on each duty)
1. Produces advanced graphic designs for exhibit
areas, specific exhibits, or exhibit components
on own or as part of a production and development
team by performing duties such as: -
65%
initiating new exhibit ideas, proposals,
concepts through discussions with other
Centre design staff, outside consultants
and through research;
suggesting improvements to existing exhibit
or exhibit graphics, by observing on floor
conditions and problems, designing approved
changes;
preparing designs and graphics of exhibit
shows in co-operation with audio-visual
personnel;
assisting senior designers with layout
design for Exhibition Halls by providing
suggestions or proposals;
designing and co-ordinating the
construction of specific exhibit, exhibit
areas, or the production of Special Shows;
evaluating exhibit area possibilities by reviewing communicative effectiveness, cost
and time data for specific exhibits;
co-operating with other members of
production team or other section personnel
in production of exhibit copy.
2. Provides co-ordination/guidance and assigns work
to other staff:
30%
- assigning projects to Designers, Drafters
for production of designs, graphics, for
exhibits or exhibit components, providing
technical guidance and direction,
suggesting solutions to design problems or
alternatives. - co-ordinating medium size projects, like
temporary shows and complete circus graphic
renewals, with both in-house and outside
production facilities.
3. Performs other related duties.
5%
4. Skills and knowledge required to perform job at
full working level. (Indicate mandatory credentials or licenses, if applicable)
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Graduation-from a related professional design
program or.equivalent in education, training and
experience . Several years progressively
responsible exhibition graphics design experience
-with proven ability to propose solutions to
complex design problems. Group leadership
skills, with ability to provide technical
guidance and direction to junior designers,
drafters etc. Effective comdnunicatlon and
interpersonal skills, with ability to cooperate
with others on an interdisciplinary team.
Knowledge of and interest in communicating
science concepts. Initiative. Ability to
interpret blueprints and specifications.”
We do not dispute the employer’s right to re-draft such position
specifications. We are only interested in the two excerpts above for three
reasons. The first, is the propriety of changing the specification at such a
date that the altered content was unknown to the candidates during the
competition.
The second reason, linked to the first, is that some of the
changes appear at least on their face, to show a tilt toward the qualifications
and abilities of the 1ncumbent;and away from the qualifications and abilities
of the Grievor. This must be reviewed in the context of the Grievor’s
allegation that the two biased panel members, Sit and Krause, also redrafted
the position specification. The third reason is that Mr. Sit’s evidence is
that the-interview questions were based on the latter position specification.
It shows a 65% weight given for duties relating to producing advanced graphic
designs. The Grievor has alleged that the interview and assessment were
unreasonable in that they gave too little weight to such duties. We will
return to this area of the evidence~later.
The second background matter concerns the involvement of Ms. Proctor and
a union witness Tony Petti, in the hearing. As the incumbent in the position,
Ms. Proctor was given due notice and attended the hearing. She did not become
8
involved directly as a party to the hearing, but was satisfied that the
employer counsel, Ms. Malpass, represented her interests.
Mr. Petti, who is a lead hand electrician in the electrical department at
the Centre, and Chief Steward of the Local, gave evidence for the union which
we shall refer to below. After the union had closed its case on the evidence,
some difficulties arose respecting the type of leave and compensation or. Petti
would receive during the remainder of the hearing as union counsel wished him
to remain as her advisor. To resolve these difficulties, the union re-
subpoenaed Mr. Petti, and the employer counsel objected to that as an abuse of
the subpoena power. After some discussion between union and employer counsel,
an agreement was reached on this issue, which we have been asked to record.
The agreement is that the subpoena is withdrawn without prejudice, and Mr.
Petti will be paid by the union and receive leave without pay while attending
the hearing was an advisor. The union is free to take such further action as it
sees fit on this matter.
We will now review some of the work history of the participants prior to
the competition.
Ms. Loco&e has been with the Centre for fourteen years, and has always
held the position of Graphic Designer, classified as Exhibit Designer 1. She
was initially hired in a competition in the summer of 1974 where she came
first. Mr. Sit came second in that competition, and was also hired at that
time. Ms. Loconte had graduated in 1969 from the %dvertising and Eesign”
course at the Ontario college of Art. She maintained high honours in her
second, third and fourth years in that course, and received a number of
scholarships, including the T. Eaton Foundation Travelling Scholarship on
9
graduation. She vas a top student, according to the Records Section of the
Ontario College of Art.
Subsequent to that she had varied and substantial experience as a graphic
designer in a number of jobs, with the last position before her hire at the
Centre being that of a senior graphic designer at the Royal Ontario Museum,
from 1972 to 1974.
Since her hire, she had been involved in a large variety of projects at
the Centre. The first temporary show she designed was a microscopy show in
1975, in which capacity she “art directed” two University of Toronto Biology
students, with staff at the Centre who did the necessary research. Then she
designed the Canadian Inventors Kit, involving her direction of several free
lance illustrators and designers. She also did the Canadian Arctic Paintings
show, School Brochures over several years, a monthly publication called Science
,News, a set up for .the annual Metro Toronto Science Pair, and material for the
annual beer and wine festivals, most of which involved supervision or art-
direction of various team members.
In 1982 she designed and art-directed the China Book, a catalogue for a
&or exhibit. This job was given to her by Mr. Krause, and she supervised a
large team of nine people. She then did work for Space Paintings, a temporary
show, and the nCpo Car show. In 1987 she did a temporary show called Chaos,
which is now permanent, and art-directed a junior designer, pawn Lee, in that
shov . She also did a number of other projects.
Substantial and detailed evidence about the Grievor’s performance in
these varied shows was received at the hearing, but that evidence can be
10
summarised as it paints a reasonably consistent picture. There .ls no question
that she is highly skilled as a graphics designer, and much of her work was
complimented in material received in evidence. As a supervisor, she gave very
clear and precise direction, and had strong opinions about the direction which
the work should go. She was meticulous in her work, and wanted it done right.
This approach produced frequently good and sometimes excellent results. On the
other hand, her careful approach and determination sometimes caused problems,
as might be expected. There is a suggestion in the evidence that she
occasionally had difficulty in meeting deadlines, although her supervisor, Mr.
.Sit, was unable on cross-examination to name a specific deadline she had
missed.
She operated best with a minimum of.supervision, and this approach caused
difficulties with Kc. Sit. He liked to give strong and frequent supervision,
and as might be expected, this clashed on a number of occasions with Ms.
Loconte's approach. In particular, he liked to have a fairly direct control
over the development of the concept in a project, and Ms. Loco&e liked more
freedom for that development than Mr. Sit's control would allow.
The good qualities of the Grievor and also her difficulties with her
supervisor, were apparent from the evidence of various witnesses, and from a
series of Employee Performance Reviews which we have considered. In general,
those Reviews indicate Ms. Loco&e's high abilities as a graphic designer, but
they also indicate the problems in supervision we have noted above, including
some difficulties in meeting team objectives and deadlines, and in punctuality.
Ms. Loconte did not agree with some of her evaluations, including in particular
one dated February 12th, 1985, where, among other things, she complains about
the supervision given her by Mr. Sit.
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Of Mr. Sit, Ms. Loconte has said that she had known him for fourteen
years. She never had a good working relationship with him, as there were
problems In commurilcatlng effectively. Although her first ten years at the
Centre were relatively free of conflict with him, she had problems In
communicating effectively with him after he became Manager. She was concerned
about his behaviour as she felt It undermined her work and her capabllltles as
a designer. At tlmes his attitude was abrasive and rude, which she complained
about formally, as he did not treat others the same. In particular, she was
concerned that he over-supervised her, which she felt was counter-productive.
When he was absent, he would get Becky to replace him, and she had more
seniority than Becky.
She considered that Sit and Proctor had a personal relationship outside
the office, which was basically socialising, but did not substantiate this as
other than an assumption from the fact that Becky’s daughter babysat Peteris
son.
Karl Forage, a retired Designer 2 who had worked at the Centre for over
21 years, made the following observation of the relationship. He said he had
observed Sit’s reaction to Loconte, and It was competitive, badgering and
defensive. He noted that situations would arise where the noise level would be
so loud that the vhole department could hear. It was not an exchange between
the two, but more like Peter saying ‘This Is what I’ve told you to do, do it”,
and Karin responding “I’ve worked things out and this is the best solution.”
Mr. Forage also had difficulties directly with Mr. Sit, and he described
them In the context of a job he had been given called the Moon Quiz Exhibit.
He had not been sure of the various phases of the heavenly bodies, and needed
12
to get it accurate. He said that Peter came up to him constantly, asking to
see what he was doing, and getting worked up. There was a confrontation, as it
appeared to Mr. Forage that Mr. Sit was undermining him, and an understanding
was eventually worked out.
When cross-examined respecting his comments about the competitive,
badgering and defensive approach, he said that both the.Grlevor and Mr. Sit
were this way, but he attributed It to a lack of sensitivity on Peter’s part.
Tony Pettl, a union witness whom we have already referred to, described
the Slt/Loconte Interaction as a very bad relationship, very hostile,
antagonistic. His evidence must be qualified by the fact that he has
represented the Grievor In the Instant grievance from the start.
Mr. Krause, who was Mr. Sit’s supervisor, said with respect to this
issue, that the Loconte/Slt problem arose as Karln seemed to object to any
level of goal setting,. review of work, and normal supervision.
Mr. Sit said that he had difficulties with the Grievor because at times
she missed her deadline, and when he checked her work, she was very reluctant
that he do so. He noted that in general she had tremendous skills, but on
occasion both took too much time on detail, forgetting the blg.plcture. When
he confronted her, she was not very receptive, and was quite difficult to
supervise at times. AS we have noted earlier, Mr. Sit was unable to
substantiate his suggestion of the Grievor missing deadlines, by giving a
specific missed deadline.
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We would conclude the following from our review of the Srlevor’s
abilities, and of her relationship with Mr. Sit. She Is a very good designer.
Except for the particular matters on her performance reviews which we have
noted, she was generally evaluated high on the scale, and other testimony
supports this conclusion. She generally worked well with a team she was
directing, with occasional problems that may be expected. She may have had
problems from time to time with deadlines and punctuality. And there was an
unfortunate and frequently disturbing clash In personalities and approach
between her and her supervisor, Peter Sit.
In summary, then, she was a very good designer, a good team leader, but
prickly to supervise. Responsibility for that last problem must be shared
between her and her supervisor, as each contributed to the difficulties that
arose. They were joint authors of the friction that arose, as the form of
supervision was as provocative as the acceptance of it was defensive and
difficult.
Most of the background information about Becky Proctor came from the
Grievor, as Ms. Proctor did not testify. Ms. Proctor originally graduated from
an art course given by a high school, and accordingly does not hold any
qualification from a School of Art or Design. She worked in a clerical
capacity and as a junior design apprentice at the centre from 1965 to 1970.
From 1970 to 1981 she did contract assignments for various government and
private clients, and in 1981 she was appointed as Dthibitlon Designer 1 at the
Centre. She held that position until she succeeded in the present competition
for the position of Intermediate Graphics Designer.
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According to the Grievor, Ms. Proctor had an aptitude for clerical
organizing skills, and a lot of her work was organizing files, production work,
and assisting Mr. Sit. She did very little creative design problem solving,
and was i,nvolved in little projects like Christmas cards. She helped the
Grievor on the Chaos project, on Science News, and on production of the China
Book. She worked on two projects, the Japan and Kuwaiti circus shows, as a
project leader. In these, she was involved in revamplng existing graphic
panels to accommodate a new language, wlth adjustments to the graphics, and she
coordinated the production aspect. In addition, her curriculum vitae shows she
was involved in summer shows named In Praise of Hands, Nature Heritage, Wood,
cars, china, Artist as a Young Machine, and Food; and in outreach projects
including National Tour, Seeing Brain, Body works, Malaysia, and the
aforementioned Japan and Kuwait shows.
She was involved in an internal process to obtain a new camera for the
department. She had earlier looked after maintenance and supplles for the
original camera, but it broke down frequently and a new one was needed. She
‘was involved in arranging the bidding for the new camera, and the layout and
setting up of a darkroom in a new location for that camera.
We have noted that Mr. Sit got her to fill in for him when he was away,
because she was thorough and reliable, and kept in touch.
MS. pawn Lee has worked for both the Grievor and Ms. Proctor, as a
Commercial Artist I, and she gave evidence at the hearing comparing the
leadership styles of each.
She said that Ms. Loconte is precise and definite in her leadership, and
always gives a clear sense of whether something is good or not. She has strong
opinions, and is not afraid to tell Ms. Lee if something is bad, which Ms. Lee
appreciates. Ms. Lee learned a great deal from her, including how to do
typography.
She said that the Proctor style is different. It is exploratory, and
generates excitement. She was given a lot of freedom, including freedom to
make mistakes, by Ms. Proctor, which she appreciated. When she was criticised,
Becky stood up for her, and Is supportive and not intrusive.
ti. Forage also compared the two when he was asked about the competition.
He was asked by various people who would be the job. He said he knew who
should get the job, and who would. Proctor gets along very well with Sit, and
they are going to choose the person who gets along with Sit. He considered
that Karin deserved the job, as she was senior and definitely had the talent.
He would have rated Proctor as third in the competition. We would comment at
this time that we found Mr. Forage to be a direct and honest witness,. but we
have weighed his testimony in light of evidence of some difficulties he has had
with the administration of the Centre.
We would conclude the following about the incumbent, Ms. Proctor, from
the historical evidence prior to the time of the competition. First, no direct
evidence was received from Ms. Proctor, none of her performance reviews or
progress reports were submitted, and our evidence is accordingly incomplete in
comparison with that respecting the Grievor. However, the following matters
are apparent.
.
. _
Ms. Proctor lacks formal post-secondary training in art or design skills,
but she appears to be a competent designer with a somewhat limited experience
on involved design on large projects. She works well with a team, and as a
leader, preferring a less-directive, more open-ended, and possible more
exciting approach than Ms. Loconte. Whether that is a consequence of positive
leadership ablllties, or lack of highly developed design skills that may result
in more direction, we are unable to tell. She is a good and reliable co-
worker, and does not appear to be abrasive in any sense.
The above review comprises a basic backdrop of information against which
- -. the competition, and its participants and processes may be reviewed. The
competition was appropriately designed in its general format, wlth an interview
and consideration of references and personnel files. We are also satisfied
with the general competence of the panel to assess the ability of an applicant
to produce advanced graphic designs, although we do not conclude at this point
that such an assessment was done in an appropriate, fair, and unbiased manner.
Two of the panel members, Mr. Krause and Mr. Sit, had extensive design
experience. MS. DeDivitiis also had enough experience in working with
designers to be able to assess an applicant’s competence. Ms. Wallace,
although the weaker of the four panel members in this case, had sufficient
experience in design-related competitions to be able to assess satisfactorily
an applicant’s design competence, when sitting with the other three panel
members.
The remaining issues are the question of bias, which we shall review
last; the appropriateness and fairness of the questions and the interview
process; and the possibly-mistaken belief that the job in the competition was
primarily administrative.
. . . .
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The panel for the competition included Mr. Krause, Mr. Sit, Ms.
DeDivitiis, and Ms. Wallace.
The test questions were:
Questions: Intermediate Graphic Designer
Competition # OSC-34/07
1. Can you briefly describe your background,
experience and education - particulary that which
you feel relates to this job?
2. Can you describe any recent course work, seminars
you’ve taken which may relate to this position?
How did it help you with your work?
3. Can you tell us about a current topic in the
science or technology areas which personally
interests you - describe?
4. (a) How do you feel these samples of work
best represent the skills required for
this position?
(b) Other questions related specifically to
the materials as presented.
5. Can you tell us about any leadership experience you have had - project or otherwise - and did you
feel you were successful and why?
6. A researcher in the team presents some exhibit
copy which you feel is too complex for the
general public. How do you handle this
situation? (Further question depending on the
answer.) What would you do if you discovered you
were the only one who was having a problem with
the copy?
7.
0.
9.
Could you describe one or two proposals for
improvements at the Centre, or exhibit ideas,
which you initiated and which were successful?
Describe a project (e.g. a small/temporary show)
you had to organise and co-ordinate and how did
you go about it?
You are now the intermediate designer. One of
the Centre staff members has identified that the
instructional panel is only working for half our
visitors, how would you go about correcting this
situation?
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10. How do you assess communications within the
Centre and is there anything you would change,
etc.
11. Can you describe your job related strengths and
anything you’d like to strengthen or improve?
(After description of any areas requiring
improvement - ask how have you gone about making
improvements in those areas identified?)
12. If you were successful in obtaining this
position, how would you go about handling your
first days in the new job?
13. As you are well aware, only one of the three
applicants for this job will be successful - how
do you feel this will effect you personally if
you’re not selected - will this cause any
difflcultles wlth you?
14. What do you perceive aie the additional
responsibilities of this position?
15. Could you please give us two client references
currently within the Centre.
16. Do you have any additional questions about the
job, etc.
A list of posslble answers to questions was made up, which reads as
follows:
Possible Answers to Questions - TntermWe Desisner Position
1. Succinct, clear information which particularly
emphasizes background and experience, and other
qualities (leadership, courses, etc.) which
relate to Intermediate Designer position.
2. Quality courses taken vis-a-vis Designer II job -
Good explanation as how courses benefitted
individual as well as being job related.
3. Latest newspaper, magazine info relates to e.g.‘s
(1) Room Temp. Super Conductors (2) Nuclear
Energy (3) Rhvironmental Issues - low level
contaminants in air and water etc. etc. Could
also possible emphasize an exhibit or exhibit
hall, particularly interested in through design
involvement. Displaying obvious interest in
science/technology.
.
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4. a) important that candidate measure success of
design work with visitor satisfaction, not
just a good design! - functional and emotional aspects rather
than just good color, up-to-date,
contemporary, etc. - good analytical thinking i.e. vis!tor
comfort, placement of graphics - awareness of hierarchy of information
so that important things stand out
1) what is it? 2) what is it supposed to do? - clarity, readability, location
important.
5. Ability to motivate - good listening skills
6. -
met-deadlines -
project on schedule
candidate should be able to relate a number
of experiences
positive experiences - obvious enjoyment of
leading a group
team was content
sense of accomplishment, pride
good sensitivity to needs of group
personal development - growth that
candidate felt with leadership roles
negative - no real understanding as to why
experience successful.
Tell others in the team what feeling or
think
listen to what they say
confirm feelings
propose alternative suggestions and listen
to comments ask for group suggestions - try to resolve
if only one having problem - assess group
credibility, experience and question own
perceptions if group inexperienced - perhaps ask
experienced person outside group x suggest
a test with the public.
I. Proactive involvement workable, innovative ideas
that were worth doing
- applicable - emphasis on how went about promoting idea -
good follow-up - involving others, getting others
suggestions, input
8. - assessment of what needs to be done -
numbers of parts, jobs to be assigned
- assignment of deadlines, work - scheduling - define project parameters
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9. -
10. -
meet with group - get ideas
communicate ideas engage outside contractors in a timely
manner, if required specify - provide open communication.
Discuss problem with staff member who
identified - get insight
observe - talk to visitors to determine,
analyse why some are getting info, others
not
negative - assign to someone else without
any involvement or checking
experimentation to determine what might
work
brainstorm if appropriate.
emphasis.on some good things have.happaned
in this area in the Centre - I.e. Comm.‘s
Committee, Newsletter, All Staff Meetings,
etc. good analysis of problems which affect
communication flow
- geography - potential new quarters will
improve
- so many small departments - how to talk
to so many people - maturity - balanced
response - not frantic
theatrical - problems, problems
Good points - easy to talk to people at all
levels
- good system of involvement of staff
through various committees.
Positive Changes envisaged or suggested:
- physical changes location
- more sectional and departmental meetings
- ensuring info is given to appropriate
staff
- get together more often as a group to
exchange ideas, brainstorm, sort problems.
11. - candidate aware of both strengths and
weaknesses
- candidate can tell us what doing to improve
weaknesses
- emphasis that strengths relate to being a good designer, good leader, good problem
solving, get along well with others (all
these things very important for this job). Good opportunity to sell themselves but at the same time m of weaknesses.
21
12. - sensitivity in handling the situation
- getting advice from supervisor and
determination of priorities
- emphasise to the group team,- and hops can
work well together - perhaps have a meeting
to.discuss what everyone’s doing and get
any suggestions from others.
13. Mature, balanced response reasonable and
considerate of the feelings of others in the area
and the design department. Job has to get done - focus on the work and do
the best you can.
14. good perception of job
- back-up
- more larger projects
- more involvement content
15. No problem giving us two current client
references from within Centre.
16. Questions are not frivolous - show well thought
out, etc.
The answers were assessed under four categories. Each category was
assessed on a scale of 0 - 5, with the following ratings:
Ratina Points
unacceptable 0
insufficient 1
minimum 2
suitable 3
above average 4
excellent 5
Then the score in each category was multiplied by a number representing
the overall weight to be given that category in comparison to others. Each
category was cross-referenced to interview questions.
The category titles, their weights, and the cross-references to questions
were as follows:
,
1.
2.
3.
4.
22
Related Education, Knowledge and Experience 8
(Questions 1, 2, 3, 4)
Group Leadership and Team Building Ability 3 (Questions 5, 6, 9)
Initiative and Co-ordination Ability 3 (Questions 7, 8, 9)
Communications, Interpersonal Skills, and
Personal Suitability 6 (Questions 10, 11, 12, 13, 14, 15, 16)
The candidates were interviewed, and scored individually by the panel
members. The members bad access to the performance appraisals and references
for each candidate, and kept them in mind, but they were not numerically
weighted.
After the interviews, the individual scores were tallied together, with
the following result:
Board Members Candidates
Peter Sit
Karin L. Reckv P. Cairine S.
59 80 14
Jerry Krause 59 69 68
Luigia DeDivitiis
Diane Wallace 2 2 3.E
Averaged 56.75 72.5 69.5
As Ms. Wallace said, Karin was a distant third, and her seniority was
accordingly not taken into account in awarding the position to Becky Proctor.
There was extensive testimony from all panel members about the specific
answers Ms. Loconte and Ms. Proctor gave during their interviews, as well as
evidence from Ms.~ Loco&e about her answers. We have considered all that
I 23
testimony, but will refer to it in a limited way at this stage for reasons that
will become apparent below.
ms. Loconte prepared herself for the interview by gathering up a
portfolio representative of practically all her design work, as she felt the
job primarily involved the production of advanced graphic designs. She had not
seen either the new or old position specifications in dolng so, but even if she
had, she would not have been far off the mark, as the old position
specification gave a weight of 65% to the production of designs and graphics,
including allied duties, and the new one gave a weight of 65% to the same duty.
Furthermore, the duties in the job competition were
“to produce advanced graphic designs in two dimensional media for
exhibits, and to provide co-ordination of activities of junior
designers. 11
Questions on her portfolio were principally asked by Peter Sit. It is
the Grievor’s evidence that he put questions to her in such a way that her
credibility and involvement in.three key pieces, including the China Book, were
questioned. Mr. Sit said that she brought in too many pieces and had no
discretion and didn’t listen when she was asked for the best pieces. In
comparison, he said that Ms. Proctor didn’t bring in any finished pieces, but
brought in some shop specs and some screen specs which were very good.
It is apparent from a review of the evidence of all panel members that
thereafter the Grievor did not respond very well to the panel in general terms,
with an attitude that~can have done her little good. For example, Ms. Wallace
described her as “very antagonistic, almost argumentative” about questions,
with that attitude directed mostly to Mr. Sit and Mr. Krause. In comparison,
I%. Proctor was quite nervous but handled her questions well, and was clear and
concise.
24
Ms. DeDivitiis, in commenting on Category 4, referring to communications,
said that Ms. Loco&e got her lowest score, as she was argumentative and
negative about Mr. Sit’s management style, poor interpersonal skills, and
judgment; whereas Ms. Proctor had a good feel for the job, support for the
supervisor, and was positive, among other things.
Without reviewing the answers to the questions, and the panel’s scoring
of those questions in further detail at this time, it is quite apparent that
the difficult relationship between Ms. Loconte and Mr. Sit, and his consequent
appearance on her interview panel, had a marked effect on her performance from
the outset, and we would further have found it surprising, under such
circumstances, that the panel could thereafter give her a fair and objective
assessmentin the competition, no matter whether her following answers were
good or bad. These difficulties were compounded by Mr. Sit’s involvement in
setting the criteria for the interview, in concert with the other panel
members.
For example, Ms. Wallace said that she was trying to find the best
candidate for the criteria, but on cross-examination she said “Right.“, when she
was asked if part of the criteria was that Mr. Sit needed someone to assist
him. One can search in vain in the competition and the two job specifications
for that as an express criteria, although such assistance may result from the
more general terms of those documents: Ms. Wallace said further that she had
been aware of the conflict between Sit and Loco&e prior to the interview, but
asked Mr. Sit to be on the board because “The immediate supervisor always sits
on the board.” She concluded that she did not see any negative feelings at the
interview between Loconte and Sit and Krause, a comment which, in view of the
other evidence, we view with some skepticism.
25
We would also give some weight to some direct responses by Mr. Sit about
this matter. He said in examination-in-chief, when asked whether he wanted the
Grievor to get the job, that “I had problems with Karin, trying to be honest.
At start of competition, I had an open mind,” and he said if she had got the
highest score, she would have got the job. On cross-examination on this
matter, he agreed with the propositions that Ms. Loconte may have thought he
was not impartial in the competition, and that it is important in the
competition to appear fair.
As a final emphasis on the importance of M?z. Sit’s role in this
Tom@tltion, we would refer to some testimony of Ms. DeDivitiis on cross-
examination. When she was asked if there was any discussion in setting the
questions for the interviews of what Mr. Sit was looking for in a successful
candidate, she said that all of the criteria were geared to that, and she
repeated her answer on being given the same question again by counsel.
Was the competition then biased against the Grievor? In answering this
question, ve note the following.
First, the position specification was changed for the purposes of the
competition to reduce the percentage weight given to the duty of production of
advanced graphic designs from 65% to 65%. That change may well have been
appropriate, and as we have noted, we recognize the employer’s right to make
such changes. However, the timing of the change, the failure to provide the
new position specification to the candidates, the fact that it reduced the
weight given to a duty performed particularly well by the Grievor, and the fact
that Mr. Sit was one of the authors of the change, together give this matter
26
substantial veight in assessing whether the process was biased against the
Grievor.
Secondly, the new position specification in its description of Duty #2
refers to “coordination of medium size projects, like temporary shows and
y (underlining added), with both in-house or
outside production facilities”. Again, the reference to circus graphics may be
an appropriate example in a general sense, but the fact that Ms. Proctor alone
bad successful experience in that matter is not of minor significance when we
are attempting to determine if a pattern of bias exists;
Third, Mr. Sit was invited to sit as a panel member, notwithstanding a
clear knowledge held by Ms. Wallace of the antagonism that existed between him
and the Grievor. He was put there because the immediate supervisor is always
put on.
Fourth, the interview criteria were all apparently geared to vhat Mr. Sit
was looking for in a successful candidate. It is not unusual for a supervisor
to have a very strong role in developing criteria, and there is no doubt that
the position specification and posting were referred to in that development.
However, the emphasis on what Mr. Sit was looking for, under the circumstances
of this case, bears some weight in our consideration of bias.
Fifth, neither the interview questions nor the “Possible Answers to
Questions”, appropriately reflect the weight given to the principal function of
producing advanced graphic designs found in both position specifications, and
in the summary of duties in the job posting. Question 4 relating to work
samples deals directly with this matter, and Question 1 relating to background
27
experience and education also relates to this function. The other questions
deal almost entirely with other functional aspects of the jobs, such as
handling situations, course work taken, proposals for improvements,
communications and other n&ters.
There is no question that these matters relate to one degree or another
to various aspects of a designer’s job in producing advanced graphic designs,
and consequently refer to abilities relevant to the job. However, the question
of the substantial weight given these latter matters, and the comparatively low
weight given to the principal function, gives us substantial concern. When we
consider the Grievor’s comparative excellent abilities in design, and some
weaknesses arising out of her relationship with Mr. Sit and her meticulous and
independent style, and we put that in the context of a series of interview
questions in which Mr. Sit had a sub.stantial~involvement in drafting, and when
we compare those questions with the position specifications and job posting, we
are left with a serious concern as to whether the Grievor had a fair, unbiased,
and non-discriminatory run at the job in this area alone.
Finally, the Grievor testified that Ms. Wallace had said during the
presentation of her work, that they weren’t necessarily looking for a designer
to fill the position, but an administrator. Ms. Wallace was unable to
recollect saying that, but commented that it was a group leadership position
involving coordination, which she didn’t see as an administrative capacity. In
view of the Grievor’s clear recollection on this matter, and Ms. Wallace’s
difficulties, we accept the Grievor’s testimony, and view this as another
factor which tended to treat the Grievor unfairly vis-a-vis Ms. Proctor, in
light of their comparative abilities and the requirements of the job.
26
We concede in thls respect that an interview should be designed to elicit
an applicant’s weak points as well as her strong ones. In this case, for all
the reasons given above, the interview process vent far too far in that
direction. When we also consider the difficulties the Grievor had in
displaying and describing her portfolio, which-arose both from too much
material ti Mr. Sit’s reaction in the interviev, we conclude that the
consequent assessment of-the panel was flawed in that it did not appropriately
judge the Grievor’s suitability for the job as found in the job posting or
either of the position specifications.
Ms. Proctor vas assessed by the same panel, and asked the same questions.
She vas not faced with critical questions from Mr. Sit at the outset about her .
work samples, which were minimal compared to the Grievor’s. She answered the
other questions well, because she is clearly more a “people” person (if we may
use the vernacular) than Ms. Loconte, although less of a designer. She did
better with the questions as’they were set. However, neither were
appropriately tested for the job as it is de,fined in the underlying
documentation.
We acknowledge the value of interpersonal skills, but conclude that the
weight given them in the process was unusual and inappropriate. This is also
reflected in the numerical assessment.
Questions 1 and 4, which we have noted above as relating directly to the
production of advanced graphic design, are part of Category 1 of the Rvaluation
Form entitled “Related Education, Knowledge and Experience”. That category is
given a weighted total of 40 points out of 100 in the numerical evaluation.
The other three categories of “Group Leadership and Team Building Ability”,.
29
“Initiative and Coordination Ability”, and TXmununications, Interpersonal.
Skills and Personal Suitability”, have a weighted total of 60 points. once
mtire, we note that we acceptthe relevance of these matters, but for all the
reasons given above, the comparative weighting is both inappropriate and biased
against the Grievor.
As Vice-chairperson Verity noted in w 390/82, at p.O, “while it is
acceptable to ask a series of questions during an interview for a job posting,
the questions must be relevant and related to the job, and must be properly
weighted. ”
The consequent failure of a test to evaluate the relevant skills is a
fatal flaw in the process (see, for example, - 506, 507,
690 and 691/U; m 113/82; and &qp& 390/62)..
We declare that the process was fatally flawed, therefore, for two lnter-
related reasons. It was biased against the Grievor, and the test questions did
not appropriately assess the relevant skills, for a number of reasons including
their weighting. These matters originated in large part from Mr. Sit’s
involvement in the preparation of the criteria for the interview, as well as
the interview itself and final assessment. Furthermore, his involvement
affected the participation of the other panel members, particularly when his
views of a successful candidate, his need for an assistant, and his
difficulties with the Grievor at the outset of the interview are considered.
We will now turn to the question of remedy. The Grievor has submitted
that her qualifications and ability are relatively equal to those of Ms.
30
Proctor, and she should accordingly be put in the position by virtue of her
seniority.
We have not yet made.such an assessment in any conclusive way, and we
would face a substantial practical difficulty in doing so for the following
reasons.
We have noted exhaustively the predominance of the,ability to produce
advanced graphic designs as the most important criteria in the position
specifications and job posting, for such an assessment. There is a great deal
of evidence from the Grievor and documents she submitted, that she is a very
good designer and we have so indicated.
However, the competition format required that that ability be tested in
an interview setting, and the underlying documentation required that the
ability be tested in such an interview in the context of other important,
albeit lesser, requirements of the job. We have approved that format in
principle, but such a test has not taken place in any fair, unbiased, and
reliable way at this time. The evidence of the interview test that we have
received is unreliable and inappropriate for the reasons we have given. It
would accordingly serve little purpose if we were to review exhaustively Ms.
Loconte’s and Ms. Proctor’s performances in that interview, and purport to make
a conclusive determination under all the relevant criteria.
Consequently, there is no reliable prior determination by the employer,
of relative equality or inequality for us to rely on, nor is there sufficient
objective evidence available for us to make a sound determination of that
31
matter. In such cases, the board will normally remit such matters back to the
employer.
In $ullivan 2411/87, the board reviewed the leading cases including w
735/85, where the matter was remitted back to the parties for a second
competition to be conducted in accordance with a number of conditions, and
m 555/82, 556/82, where the board itself made the determination as the
process provided enough evidence for the board itself to decide, and there had
been extensive delay.
In considering these matters, the board in SulliMn noted at p-7:
“First, there is a presumption that the Board will remit
a competition back to the Employer where no prior
determination of relative equality has been made. The underlying principle is that the Employer is primarily in
the business of running such competitions, among other
things, and that it accordingly has a competence to make
such determinations to which a Board should defer unless
there are reasons for the Board to assume that role.”
There is accordingly a presumption that in circumstances such as exist
here, the matter will be remitted back.
On the question of whether such a remission should involve only the
Grievor and incumbent, or all original competitors, the board’s practice varies
according to the fact situation. As noted in &Q, at p. 11/12:
“In some cases the Board has ordered that all the
candidates in the original competition be entitled to
participate again if they wish. (u 128/51;
- 1244/84, 1353/84, 1354/84;
McNamra (supra); and Hoffman (supra). In others the Board has confined the competition to the grievor(s) and the successful candidate(s).. (m and Tab 70/79;
&A.& (supra) .I’
In determining the extent of the remission back in this case, we would
give weight to the following factors. In favour of restricting it to the
Grievor and MS. Proctor, we would note the time,.energy, and commitment ~5.
Loconte has given to seek out a fair competition in bringing her grievance to
eventual adjudication. We do not view that lightly and give it considerable
weight. On the other hand, there was not only a third applicant by the name of
Cairine, but she came clearly ahead of Ms. Loconte in the final assessment. We
do not accept the assessment, but we must give some consideration to that
result. If one considers a situation where there are possibly ten candidates
in a competition, which is not unlikely, should a grievor who came last, for
example, succeed in principle to obtain access to a competition solely between
her and the incumbent (in the absence of a prior determination) if she can
prove the process was unfair? That is not the present case, but it serves to
illustrate the type of problem that may arise.
In assessing such a situation one must not only give veight to the
grievor's involvement in the process, but one must also balance that with the
requirement to make the resulting competition a meaningful one, in terms of the
employer's need to get the best candidate for the job. Where there has been no
reliable prior determination, and where, as in this case, there was another
applicant who appeared to be well in the running, there is accordingly good
reason under such circumstances for opening the competition once more to all
original applicants. If such is done, a grievor should have a fair run at the
position, and the employer's needs will also be met.
We would accordingly remit the matter back to the employer for a re-run I
of the competition involving Ms. Loconte, t%. Proctor and Cairine S., should
she wish- to apply, on the following term5 and conditions:
33
1. .%n entirely nev panel of board members, with
experience.in evaluating graphic design at least equal to the old panel, must be selected for the
competition.
2. The relevant job specification and job posting
must be made freshly available to the candidates
at least two veeks prior to the commencement of
intervievs.
3. A nev set of interview questions, expected
answers, and a numerical evaluation scheme must
be prepared which more accurately reflect the
duties and the weight given them in the position
specification.
4. The interview board must give no weight in its
assessment to the experience gained by Ms.
Proctor since succeeding to the position.
5. If Ms. Lo&e is successful, she is to be placed
in the position forthwith. Under all the
circumstances, we do not order that she be made
whole if successful as of the date Ms. Proctor
was appointed to the position.
We remain seised in the event any difficulties should arise in the
implementation of this avard.
Dated at Ottava,
this 27th day of February, 1989
D. Fraser, Vice-Chairperson