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HomeMy WebLinkAbout1990-2538.Gratton et al.92-05-11 Decision ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE CONTARIO GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8-SUITE 2100 TELEPHONE/TELEPHONE 180,RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G 1Z8-BUREAU 2100 (416)598-0688 2538/90, 2539/90, 2540/90, 2541/90 IN THE MATTER OF AN ARBITRATION Under THE CROON EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gratton et al) Grievor - and - The Crown in Right of Ontario (Ministry of the Environment) Employer BEFORE: A. Barrett Vice-Chairperson J. Carruthers Member H. Roberts Member FOR THE N. Roland GRIEVOR Counsel Cornish Roland Barristers & Solicitors FOR THE C. Rowan EMPLOYER Counsel Fraser & Beatty Barristers & Solicitors INCUMBENT: B. Mollard HEARING December 9, 12, 1991 February 27, 28, 1992 March 17, 1992 D E C I S I 0 N This is a job competition grievance of four individuals who were water treatment operators vying for the job of senior operator in a competition held in the fall of 1990 . Mr. Gratton and Mr . Laporte were denied an interview in the competition, and we will deal first with their grievances . Mr. Leatherland and Mr . Vermeulen were granted interviews, but were unsuccessful in the competition. We retain jurisdiction with respect to their grievances . The incumbent, Ms . Mollard, attended and participated throughout the hearing. In accordance with the jurisprudence of this Board, notably Borecki, GSB 256/82 (Swinton) , we proceeded with these grievances in two stages. First we will determine whether the employer acted improperly in denying the two grievors, Gratton and Laporte, interviews , with the onus on the employer to show that it acted properly. If it acted properly, the case for Gratton and Laporte will be over. If it acted improperly, then the interviews will have to be re-run to include them. At issue then is the pre-screening process employed by Mr. Al Scott, the Superintendent of the Lake Huron Water Supply System. It was an open competition and 15 people applied. Eight of them were internal applicants and the rest were not public servants . In assessing the candidates' qualifications on the pre-screening of applications , Mr. Scott devised a score sheet to assign marks for 2 the qualifications of each of the candidates based on their applications. The total point score was 135, and Mr. Scott determined that anyone who got 68 or better should be granted an interview. Five candidates passed this test, three of whom were internal applicants . Upon further review, Mr. Scott noted that two of the unsuccessful candidates had more than 20 years ' experience as water treatment operators, and so he granted them an interview too "as a courtesy" . Mr. Laporte, with six years ' experience as an operator, scored 64 points and was denied an interview. Mr. Grattan, with seven years ' experience as an operator, scored 59 and was similarly denied an interview. One of the qualifications for the job as stated on the job posting is "several years experience as a water plant operator" . Thus it is important to note that there are only eleven water plant operators in the Lake Huron Water Supply System and all are well- known to Mr. Scott. He has been supervising the operators directly since 1977 when he became Assistant Superintendent. His promotion to Superintendent occurred in the fall of 1989 . Mr. Scott sat on the selection committees that hired all of the operators since 1977 . Mr. Scott testified that although the internal applicants were well-known to him, he did not take into account his personal knowledge of the individuals , but relied strictly on the application forms and accompanying resumes in the pre-screening process. Unfortunately, Mr. Laporte and Mr. Grattan were not aware 3 that this was the way the competition would be handled. In past competitions, all internal applicants got an interview for the job. Furthermore, each thought that it was not necessary to be too detailed in his application because each knew their earlier applications for operator jobs were on file, and they also assumed that Mr. Scott would be quite familiar with their background and abilities from working with them, and having hired them in the first place. Mr. Scott testified that he did not look to their earlier application forms, nor any personnel file material, nor his own personal knowledge of the candidates when screening them out of the competition. Upon cross-examination, he conceded that he did rely upon his direct personal knowledge of the candidates to some extent. As a result, some strange anomalies arose in the pre-screening scoring. One of the qualifications for the job was "supervisory experience" which was accorded 15 possible marks on Mr. Scott ' s tally. On his application form, Mr. Laporte noted that he had 10 years of supervisory experience as a senior foreman at Dashwood Industries, his employer before joining the Ministry. Mr. Scott gave him 7 out of 15 for that experience because, as he said, he could not tell from the application form just how extensive and responsible that experience was. If he had looked at Mr. Laporte' s 1984 application form, he would have found a very detailed summary of broad and extensive supervisory experience outlined. In fact 4 this earlier resume would have helped Mr. Laporte in the "administrative skills and experience" part of the pre-screening test as well . In that area he scored 9 out of 20, 'but it turns out he had extensive experience in many facets of administration such as staff training, budgeting, processing Workers ' Compensation claims and record-keeping. On the other hand, Bev Mollard, the incumbent, achieved 4 out of 15 for supervisory experience, although she has none to speak of; nor was any mentioned in her application. Mr. Gratton, who noted on his application form, that he has a Class A Mechanic ' s licence and an Industrial Mechanic Millwright licence, somehow managed to score only 7 out of 10 on "mechanical and electrical knowledge" . Ms. Mollard scored 4 under this heading for her experience "being around operating equipment" and as a casual worker at the water plant doing ground and building maintenance, such as cutting the lawn and painting. Again Mr. Scott imputed this knowledge to Ms . Mollard although she did not claim to have it on her application form. In the category of "computer knowledge and experience" ,which was worth 20 marks, Mr. Laporte scored 6 and Mr. Gratton scored 3 , while Ms. Mollard scored 12, even though they all had parallel training in computers. In her most recent job just prior to the competition, Ms. Mallard had more hands-on experience with computers, but we heard evidence from a skilled computer operator 5 that newer programs which are employed in the office can be taught easily in 30 minutes to anyone with basic computer knowledge. Another complaint of the union is that although the job posting did not mention sewage duties, 20 points on the test were assigned to sewage knowledge and experience. One could infer from the job posting that sewage was to be involved only because one of the requirements was eligibility for certification in Waste Water Collection 1 and Waste Water Treatment 2. When assessing who was eligible for certification, Mr. Scott made certain assumptions about the candidates ' backgrounds and what constituted "other education" as a qualification for certifiability. Mr. Scott did not think that Mr. Gratton's Mechanic 's and Millwright licences would give him any credit with the advisory board of certification, so he only got a 7 out of 15. Mr. Leatherland, who already has this certification, albeit grandfathered to his own facility, scored 5 out of 15. Ms. Mallard benefited most from Mr. Scott's assumptions about eligibility. Her two years at an agricultural college was considered directly relevant and she scored 14. There are further examples of anomalies in this pre-screening scoring, but what we find in general is that Mr. Scott was willing to deploy his personal knowledge of Ms. Mollard' s background and experience to flesh out her application and increase her scores accordingly. Background information with respect to Mr. Laporte and Mr. Grattan was downgraded or ignored, even when noted on their 6 application forms. This is an example of how a test designed to be objective can become subjective at the point of scoring. Although Ms. Mollard held the same classification as the other water treatment operators, she had been deployed while a member of the casual staff as a pilot plant operator, then as a "special operator" , until approval and funding for the senior operator position became available. In these positions, Ms. Mollard worked closely with Mr. Scott setting up experimental projects, recording data and doing more routine and non-routine lab tests than other operators. The special operator contract position was really much the same as the senior operator position which was posted. Mr. Scott attached much importance to Ms. Mollard' s experience as a pilot plant operator and special operator because that experience was so directly related to the actual job of senior operator. obviously he was pleased with her work and thought she would make a fine senior operator. of course the other operators did not have the same "special" experience that Ms. Mallard had, and it is hard to see, based on Mr. Scott' s weighting of qualifications and experience, how anyone else could have been found more qualified than she for the job. In fact she may be the best person for the job, but we do not think the grievors Gratton and Laporte were given a fair chance to compete. Generally speaking, the grievors had the qualifications and abilities to perform the duties of the job but, because they lacked Ms. Mollard' s particularized experience, they were rated low. For instance, all of the internal applicants had passed lab skills courses , but Ms . Mollard was given much more credit for her lab skills because she did more lab testing. She did more office and computer work and was therefore deemed to be more qualified in administrative areas . There is no reason to believe, though, that the grievors could not have brought their basic skills and knowledge to bear on the same tasks with equal efficacy. We were not persuaded that the grievors lacked the qualifications to do all of Ms . Mollard' s tasks as a special operator, nor were we persuaded that there was a substantial qualitative difference between what Ms. Mollard did as a special operator and what the grievors did as regular operators. Given the weight that Mr. Scott placed on Ms. Mallard' s experience as a special operator, one could be drawn to the conclusion that she was the only person qualified for the senior operator job. We do not think this is the case . Reviewing the job specifications and the qualifications of the grievors , these grievors appear to be well-qualified for the job. How then did they fail the pre-screening test? It is interesting to note that another pre-screening scoring was done by Mr. Boland, who is the Operations Engineer and Mr. Scott ' s supervisor. We did not hear evidence from Mr. Boland but a score sheet prepared by him was placed in evidence by the union. Apparently after a preliminary review of the application forms, Mr. Boland felt that both grievors qualified for an interview and that Mr. Gratton was the second-best candidate of all 15 applicants . Employer counsel insists that Mr. Scott did not refer to Mr. 8 Boland' s marking scheme and therefore we should deem it irrelevant to the propriety of the pre-screening process that was actually employed. We think it is indicative of the fact that something went wrong in the pre-screening process. We are aware of the jurisprudence of this Board sensibly requiring that applicants for a job competition must clearly set out their background and experience on their application forms and resumes and cannot expect the employer to search out background information that might be helpful to an applicant. As was said in Tully, GSB 1622/87 (Kirkwood) , at p. 11 , "By relying on the written material presented by the applicant in every case, the employer was looking at the applications in as objective manner as possible. Outside material and contacts by their nature are variable in quality and quantity, and had the employer investigated all the outside sources for references to flush out further qualifications of all the applications, he could easily be subjected to criticism for not handling the applications in an even manner, notwithstanding a desire to do so and deliberate action to do so. " On the other hand, a slavish adherence to that rule leads to absurdities. In Dale, GSB 2384/87 (Delisle) , the grievor, who was one of nine people working in a section, submitted a very scanty application for a promotion because, just a few months earlier, he had provided a complete resume to his supervisor who was conducting 9 the competition and felt that his supervisor was fully conversant with his background and experience and he had no need to detail it on his application form. In that case, in the interest of objectivity, the supervisor pre-screened the grievor out of the competition because the application form was so deficient . Thus, in the interest of objectivity, the supervisor ignored facts of which he was fully aware. The Board did not think that was a reasonable approach and ordered a re-run of the interviews . We do not think the exercise of objectivity should lead to a wilful blindness on the part of a person pre-screening applications. Obviously if an applicant is unknown to the screener, he/she will have to rely entirely on what is in the application. That makes sense. However, in a case like this where there is a small group of operators well-known to the screener , it is also sensible to assume that personal knowledge will be taken into account. It is even more sensible for a candidate to assume this when the screener is the person who hired him in the first place for his present job. In the instant case, where the uncontradicted evidence was that all internal applicants were routinely interviewed for job competitions, it was a further reasonable assumption for the grievors to make that they would be able to flesh out their background qualifications at the interview. It seems to us that if Mr. Scott wondered what Mr. Laporte' s "10 years ' supervisory experience" really meant, he should have inquired further, instead of down-grading it for lack of detail . 10 We are not propounding a general rule here but, after hearing extensive evidence about the job duties and the candidates ' qualifications, there is no logical explanation for why these experienced and qualified operators were not deemed to be even in the running for the job. Subjectivity crept into the scoring of what might otherwise have been an objective test. This subjectivity benefited Ms . Mollard, but it was detrimental to the grievors . In all of the circumstances, these grievors were entitled to an interview for the job. We order that new interviews be conducted of the successful incumbent and all four grievors . We include Mr. Leatherland and Mr. Vermeulen in the new interviews because they will be conducted by a new panel , not to include Mr. Scott, and all should start out on an equal footing. We will remain seized of jurisdiction in the event there is any difficulty in implementing the award. Dated at Toronto this 11th day of K´┐ŻaY, 1992. Z-,, ,, A. Barrett, Vice-Chairperson Carruthers , Member H. Roberts, Member