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HomeMy WebLinkAbout1988-0142.Misir.90-01-03 ONKYO EMPLOYES DE ~ COURONNE CROWN EMPLOYEES DE L 'ON~RIO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST TORONTO, ONTARIO. MSG 1~-SU1~ 21~ TELEPHONE/T~L~PHONE 180. RUE DUNDAS OUES~ TORONT~ (ON~RI~ MSG IZ8-BUR~U21~ ~I~ $~-0~8 142/88 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (June Misir) Grievor - and - The Crown in Right of Ontario (Minis. try of Health) Employer Before: N.V. Dissanayake Vice-Chairperson J. McManus Member M. O'Toole Member For the Grievor: C. Paliare Counsel Gowling, Strathy & Henderson Barristers & Solicitors For the Employer: R. Anderson Personnel Officer Ministry of Health M. Bay M. Quick Counsel Legal Services Branch Ministry of Health Hearings: August 11, 1988 January 20, 27, 1989 August, 1, 1989 DECISION This is a job competition grievance wherein the grievor, Ms. June Misir, alleges that the Employer awarded the position of Revenue Control Supervisor at its Revenue Operations Unit of Insurance Accounting at Kingston, Ontario, to a more junior employee, contrary to article 4.03 of the collective agreement. That article reads: "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 successful candidate, Ms. Lori Williams, was given proper notice of this hearing, but did not participate except as a witness called by the Employer. She had approximately three years less seniority than the grieuor. Following job interviews, the selection panel placed Ms. Williams first with 79.31%, while the grievor came in third with 59.22%. The Union claims that the selection process was flawed in a number of ways. In addition, it is alleged that there was actual, or at least perceived bias on the part of certain members of the selection panel in favour of Ms. Williams. It is the Union's position that the grievor's qualifications and ability to perform the duties of the position were relatively equal and that therefore she should have been awarded the position in accordance with article The relevant portion of the job posting for the position in question reads: The Revenue Operations Uni% of Insurance Accounting, Finance an4 Accounting Branch, requires a highly motivated,, well organized individual to supervise and coordinate the activities of the Revenue Control sub-unit which controls and investigates the recording of CHIP Premium Payments and t~e update of subscribed/group accounts. QUALIFICATIONS: Previous supervisory experience in a high volume financial environment. Proven ability to motivate and instruct subordinate staff. Experience in developing effective administrative procedures. Knowledge of Government Accounting and Banking procedures. Strong organizational and planning skills. Working knowledge of personal computers with emphasis on software package LOTUS 1-2-2. Excellent oral and written communications. On the. basis of applications received, the Human Resources Branch selected eight candidates for interviews. The selection panel consisted of three persons. The chair- person was Ms. Norah Sandland, Manager of the Revenue Operations Unit. Ms. Sally Kelly, a Human Resource Specialist was the second pane~ member. The third member was Mr. Brian Kimberley, Director of the Finance and Accounting Branch of the Ministry. His office was in Toronto and became involved in this selection process in an unusual way. After being appointed as Director, Mr. Kimberley informed unit heads that he wished to participate in the hiring of a few supervisory 4 positions in order to get a first-hand look at the process. This job competition happened to be one of two he decided to attend. Ms. Sandland prepared fifteen oral questions and one written question and weighted them between 1 to 5. Just prior to the interviews, Mr. Kimberley added a 17th question and allocated to it a weight of 10 marks. The Union led evidence .in support of its allegation of bias. Ms. Williams conceded that she went for drinks and for lunch with Ms. Sandland. When asked if she was a good friend, Ms. Williams stated that it depends on how a good friend is defined. Despite Ms. Sandland's insistence that her relationship with Ms. Williams'was no different from her relationship with other employees, we find that Ms. Williams and Ms. Sandland had a special friendship beyond the normal employer-employee relationship. The Union also led evidence relating to a prior competition held in October 1987 for the positions of Group Leader Data Management and Group Leader Encore Operations. The candidates were interviewed by a panel, which was also chaired by Ms. Sandland. Ms. Williams and the grievor were among the candidates. The documentary evidence shows that while the other two panel members were almost identical in their marking of Ms. Williams, Ms. Sandland had given her some fifty five marks more than the others. Ms. Sandland also marked the grievor lower than either of the other panel members. Based on the average marks, MS. Williams was placed first and the grievor was fourth. Ms. Williams ~as thus offered the first choice and she selected the position of Group Leader Data. Management. The candidate who placed second was offered the other position but declined. The candidate who came in third accepted that position. That~candidate had lesser seniority than the grieVor, and had scored a mere 2.3% higher than the grievor. The evidence indicates that in applying article 4.3, the Ministry followed a rule of thumb, which requires the senior employee to be awarded the job if she is within 10% of an employee with lesser seniority. Thus, if this rule had been applied, the grievor should have been offered the Encore Operations position before the candidate· who placed third. While this was not done initially, the grievor was ultimately awarded the job. The Employer witnesses testified that the third candidate was awarded the job as a result of a mistake. Ms. Sandland testified that at the time she was unaware of the "10 percent rule" and Ms. Paulette Vickory, the Human Resources representative on the selection panel, testified that by the time she got to the third candidate, she simply forgot about the "10 percent rule". While the Employer witnesses would have us believe that the error was discovered and corrected by the Employer on its own initiative, the documentary evidence, particularly exhibit #6 filed in reply, pro~es beyond doubt that the 6 decision was reversed only after the filing of a grievance by the grievor and a discussion of that grievance. The jurisprudence of the Grievance Settlement Board has set out the expected standards for properly conducting a job competition. In Maclelland and DeGrandis, (G.S.B. 506, 507, 609, 691/81, Samuels) at page 25, the Board. itemized the requirements as follows: The jurisprudence of this Board has established various criteria by which to judge a selection process: 1. Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification. 2. The various methods' used to assess the candidates should address these relevant qualifications insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifications. 3. Irrelevant factors should not be considered. 4. All members of a selection committee should review the personnel files of all the applicants. 5. The applicants' supervisors should be asked for their evaluations of the applicants. 6. Information should be accumulated in a systematic way concerning all the applicants .... While the Board has set out the foregoing criteria, it has not insisted on perfection before approving a selection process. In Saras. (G.S.B. 457/85, Swan) the Board observed at p. 9: The Union was able to point to a number of flaws in the selection process in this case, but as counsel for the Employer rightly observed, it is possible to pick holes in almost any process run by mere mortal human beings. In upholding the Employer's selection process, the Board stated at p.13: ...while we may not be happy with everything that happened in the course of the selection, we have come to the conclusion that the process as a whole was not unfair nor was it calculated to lead to an unfair result. We have also concluded that on a somewhat larger body of evidence placed before us' at-the hearing, and on an objective basis Ms. P. was in fact better qualified for the specific job at issue then was the grievor. With those general principles in mind, we now turn to the case at hand. The Union suggested that none of the panel members reviewed the personnel files of Ms. Williams or of the grievor. The Employer's evidence was thJt following the interviews, Ms. Sandland and Ms. Kelly reviewed the files of the top three or four candidates. Thus it is conceded that Mr. Kimberley did not at any time review the personnel files. Also, it is. the uncontradicted evidence that none of the panel' members spoke to Mr. Chang, who was the direct supervisor of both Ms. Williams and the grievor. Ms. Sandland testified that Mr. Chang reported to her and that therefore she would have been aware of any information he may have had 8 to offer. It should be noted that Mr. Chang was not called to testify. The candidates had filed their resumes. The evidence indicates t~at Mr. Kimberl¥ could not have reviewed these in any meaningful way, if at ail. Ms. Kelly testified that Mr. Kimberley did not have the resumes with him during the interviews, and that he only had the score sheets. Mr. Kimberley could recall that he received copies of the resumes prior to the interviews, but could not recall if he took them to the interview. Ms. Sandland testified that Mr. Kimberley had copies of the resumes at the interviews and that he reviewed the applicable resume "as each candidate came in". Even if Ms. Sandland's version of the evidence is accepted, in our view that would at most have permitted a cursory glance. The Board has held in a number of decisions that a competition is flawed where there is a failure to consult the supervisor of the candidates and to review the personnel files. See, ~uinn G.S.B. 9/78; Hoffman G.S.B. 22/70; Leslie, G.S.B. 126/79; and ~cNamara G.S.B. 272/81. In Poole, G.S.B. 2508/87 (samuels), the Board reasoned as follows:' At the interviews,~ a series of questions were asked of each candidate to elicit information concerning the candidates qualifications and experience. A~d then the candi~ates were scored on these answers, without any regard to the information on the application forms, or information which might have been found in perso-~el files, or information £rom the applicants' supervisors at the Hospital, Apparently it ,is Ministry policy to base its decision entirely.on the scores at the interview. If this'is the Ministry's policy, then it is absolutely incomprehensible to us why it shouldbe so. This job competition had to be done according to the collective agreement. Article 4.3 provides: In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and. ability are re'latively equal, length of continuous service ~hall be a consideration. And this Board' has explained in detail many times what is required to fulfil the requirements of Article 4.3... There must be a full gathering of information concerning the qualifications and ability of the applicants. It is not satisfactory to consciously ignore information as was~ done here. For some reason, the grievor did not do well at the interview.., and the three members of the panel were left with the impression that the successful applicant had better qualifications and experience than the grievor. (original emphasis) In the case at hand none of the panel members consulted with the supervisor. The Board requires such consultation for the simple reason that the person who has day-to-day direct supervision is likely to have pertinent and persuasive information as to the employee's qualifications, abilities and work habits. Ms. Sandland, who had no direct-supervision over the employees could not have had direct knowledge of those factors. Alternatively~ it is possible that she was familiar 10 with Ms. Williams' because of her social acquaintance, but not with the grievor. In either event there is serious cause for concern. Thus the evidence establishes the following: (1) None of the panel members consulted the employees' supervisor. (2) At least one panel member did not review the Personnel files. (3) One member did not review the resumes of the candidates in any meaningful way, if he did so at all. If we had any doubts as to whether these procedural flaws per se are sufficient to render the selection process improper, those doubts are removed when these flaws are seen in light of some other aspects of the evidence which we find to be most disturbing. As a starting point, we have already concluded that the chairperson of the selection panel had a social relationship with the successful candidate. This Board is not prepared to stipulate as a general rule that where any manager, who has some social inter-action with an employee, serves on a selection panel, there necessarily will be an inference of actual or perceived bias in favour of that employee. The Board will have to consider all of the circumstances including the availability of other qualified management personnel to serve on the selection panel. However, where a manager elects to serve on the panel despite having a special relationship with one or more of the 11 candidates, and allegations of favouritism are made, the Board has an obligation to closely scrutinize the selection process in order to determine if those allegations are well-founded. The Employer must then be able to demonstrate in some objective fashion that the procedure was fair and reasonable. On the basis of the evidence we heard, we cannot be assured at all that the selection procedure that resulted in the awarding of the position to Ms. Williams was fair or reasonable. Ms. Sandland was not only a member of the panel,~but was its chair-person. In that capacity she decided what questions to ask and what weight to attach to those questions. She had control of how the interviews are run. As the "technical expert", Ms. Sandland was the only person who evaluated the question that required a written answer. The other panel members simply adopted the mark determined by Ms. Sandland. We are satisfied that as the Chair-person of the panel and as the person who had the most knowledge about the job.and the applicants, Ms..Sandland's views would have. influenced the other members to a greater or lesser degree. As far as the employees are concerned, Ms. Williams testified that Ms. Sandland had informed her in advance that she would be chairing the selection panel. The grievor did not have that information. 12 Prior to the interviews, Ms. Sandland prepared the questions to be asked at the interviews, assigned weights and also prepared suggested answers for each question. The Board had the benefit of reviewing the notes taken at the interviews. Usually, the Board would be reluctant to closely examine the marking of panel members, who we must assume know more about the subject matter'than we do. However, in the circumstances here where there is evidence suggesting possible bias and favouritism, such scrutiny is unavoidable. To not do so is to deny the grievor an opportunity to prove her allegation of bias. What follows is an examination of some of the questions and answers of the two employees, which the Union used to substantiate its claim of bias on the part of Ms. Sandland and Ms. Kelly in their marking. Question No. 2 reads: (2) What do you think of performance appraisals and tell us how you conducted them with the employees you supervised. The suggested answer is - look for actual experience in conducting appraisals and for how many years. Ms. William told the selection panel that she had not prepared a performance appraisal nor conducted one, but that 13 she had input into the preparation of an appraisal. The grievor replied that she had in fact prepared a performance appraisal and sat in at the appraisal interview. Ms. Sandland and Ms. Kelly both gave the grievor 5/10 and Ms. Williams 8/10. When Ms. Kelly was asked to explain in cross- examination, she stated that despite the grievor.~s answer, she assumed that, like Ms. Williams, the grievor also had simply had some input into the preparation of an appraisal'. She admitted that she assumed that without even questioning the grievor. At this proceeding no evidence was led to suggest that the grievor'S answer was untruthful nor was the grievor cross-examined about that. (3) How frequently should you discuss job performance with an employee? The suggested answer is - As often as necessary. Both the grievor and Ms. Williams gave the exact suggested answer. Ms. Sandland and Ms. Kelly gave Ms. Williams a perfect score, while the grievor got 8/10. Their explanation during testimony was that the suggested answers are guidelines only and not the complete answer. However, even if that was the intention we find on the basis of their own notes that the two answers are almost indistinguishable. Ms. Williams went on to say that it is important to present positive as well as negative feed back. The grievor stated 14 that if the employee is doing a good job the supervisor should let it be known. A more glaring example of inconsistent marking is with respect to question no. 4. (4) What experience have you had in the selection process for hiring new employees. The suggested answer is - sat on selection board. The grievor indicated that she had sat on a selection board for hiring a part-time employee in the government service. Ms. Williams had no experience of hiring in the government service at all. Her only experience related to the time when she was in university where she participated in the hiring of a student for a student body of which she was a member. Despite the fact that that was a process totally unrelated to the hiring process in the government, and had occurred some years ago, Mr. Kelly gave the grievor 4/10 and Ms. Williams 6/10. Ms. Sandland gave the grievor 3/lO and Ms. Williams 6/10. Next we refer to Question no. 10 the content of which is irrelevant. Ms. Williams' own testimony, corroborated by Mr. Kimberley's evidence, is that when the question was asked she could not answer it and asked if she could come back to it later. Ms. Williams testified that when the question was 15 asked later, she "fumbled over it". Ms. Sandland and Ms. Kelly scored her 9/10 and 8/10 respectively. Under cross- examination Ms. Williams testified that she was surprised that she got those marks, and that she would have expected 5/10 for her answer. Finally, we refer to Question no. 13 Which asked the candidates to "Describe how you organized and planned one specific project?' Did it get implemented and with what results?" Both the grievor and Ms. Williams referred to a similar experience, namely, a project to clear a 'back-log. Ms. Sandland scored the grievor 0/10 and Ms. Williams 6/10. Ms. Kelly's scores were 2/10 for the grievor and 8/10 for Ms. Williams. Ms. Kelly's explanation was that Ms. Williams had "started from scratch" and had prepared the procedures for the project, while in the grievor's case' the procedures for the project were already in place. When asked how she knew that the procedures were in place for the grievor, Ms. Kelly replied that Ms. Sandland told her that. She conceded that she had not asked the grievor about that. Nor did she verify the situation from the grievor's supervisor. Once again the grievor was not cross-examined on this issue nor did the Employer lead any evidence to substantiate its distinction between the two Projects. We note that Mr. Kimberley 16 initially scored the grievor 9/10 and Ms. Williams 8/10 on this question. However, the grievor's mark was subsequently changed to 6/10. Now we turn to another aspect of the evidence. As already noted the actual question sheets used by Ms. Sandland and Ms. Kelly were filed in evidence. Ms. Kelly's sheet for Ms. Williams indicates a mark beside each of the questions. A number of marks are changed by writing over. Union counsel questioned Ms. Kelly on the changes which could be deciphered. Ms. Kelly conceded that she had adjusted Ms. Williams' marks upward in those instances, but explained that it is not unusual for her to go back and adjust marks after all of the interviews are comDleted. In contrast, Ms. Kelly's question sheet for the grievor does not indicate a mark for nine of the fifteen questions. Nevertheless, Ms. Kelly insisted that she followed her usual practice of giving a mark after each question is answered. Her explanation was that she noted the grievor's marks for those particular questions on a separate piece of paper and felt tired at the time to transpose them to the question sheet. Of the six questions which had a mark noted on the grievor's question sheet, two had been changed. In each case the adjustment .is downward. Now we turn our attention to Mr. Kimberley. For reasons which will be elaborated later in this decision, we are l? satisfied that he made no notes during the interviews. 'Both Ms. Sandland and Ms. Kelly vividly recalled that at the end of all the interviews they noticed with alarm that Mr. Kimberley's marking was substantially more generous and completely "out of whack". They raised this .with him and requested that he re-do his marking to bring it into line with their marks. Ms. Sandland testified that when the matter was raised, Mr. Kimberley attributed his generous marking to his past experience as a teacher. Both Ms, Sandland and Ms. Kelly testified that he agreed to lower his marks and took his sheets home. The evidence was that he returned the adjusted score sheets to Ms. Sandland the following morning. His score ~sheet for the grievor indicates that the marks for four questions were adjusted - in each case the adjustment is downward. In direct contradiction of the evidence of Ms. Sandland and Ms. Kelly, Mr, Kimberley denied that anyone raised any concern about his marks being too high. ~e vehemently denied that he took any score sheets with him overnight and insisted that the grievor's marks were adjusted on his own initiative and that this was done soon after the interviews had been completed. Another troubling aspect of this evidence, is the fact that Mr. Kimberley's score sheet for Ms. Williams does not contain any adjustments at all. Ms. Sandland and Ms. Kelly were unable to explain why Ms. Williams' score sheet had no changes and the grievor's did, when according to them Mr. Kimberley was responding to their 18 request to generally down-scale all of his marks. Furthermore, since he worked in Toronto, Mr. Kimberley could not have been too familiar with the candidates. One wonders how he would have re-done the marks in any meaningful way considering that he had no notes of the answers given by the employees. We also note, that the score sheets.for the other six candidates were not produced by the Employer, so that we do not know what, if any, changes were made by Mr. Kimberley on those sheets. It was generally agreed at the hearing that job competitions are vitally important to employees and that therefore they must be run fairly and be seen to be run fairly. The particular collective agreement in article 4.3 has given special recognition to employee seniority in the process of a job competition. Seniority is one of the most important rights negotiated in a collective agreement on behalf of employees. An employee who competes for a job only has her own perception of the qualifications and ability. If she is not successful in the competition, she may therefore feel aggrieved because she would not be aware of how the employer came to its decision. Thus the avenue open to her is to file a grievance, which is a right she has under the collective agreement. When such a grievance comes before the Board, the Employer has an obligation to be candid in setting out for the Board the process which was followed. If there I9 is a lack of candour, the inference is that the Employer is attempting to hide or coveruP something from the Board. Unfortunately, we are not able to say that some of the Employer witnesses were candid. On the contrary, we are left with serious questions about their credibility. For example, Ms. Sandland and Ms. Kelly had no doubt that Mr..Kimberley had nothing whatsoever to do with the drafting of the questions or their weighting (except the one he added). They were certain that there was no discussion with Mr. Kimberley about those questions and that he was simply given a copies of the sheets which already had the questions, suggested answers and weight. In contrast, Mr. Kimberley testified that the three panel members met and discussed the questions as well as the weighting on the morning of the interviews. He insisted that he had "real input" into the content of the questions and that he made a number of suggestions. He also testified that the weighting for the questions was decided and entered on the score sheets during this meeting in "a kind of assembly line" system. The grievor testified that during her interview, Mr. Kimberley did not make any notes. Ms. Williams testified that she did not know if he took any notes and Ms. Sandland stated that she could not recall. On the other hand, Ms. Kelly had no difficulty agreeing that Mr. Kimberley took no notes during the interviews. Indeed, she agreed that generally it is 2O prudent for a member of a selection panel to make notes, but explained that in this case she was not concerned about Mr. Kimberley not making any notes because at the end his ranking was the same as the others. When Mr. Kimberley took the stand, he insisted that he made notes on a separate sheet of paper. When asked if he can produce those notes, he stated that he had discarded the same. We find Mr. Kimberley's evidence in this regard to be not credible and have concluded that he did not take any notes. We have already noted the direct conflict between the evidence of Ms. Sandland and Ms. Kelly on the one hand, and Mr. Kimberley's on the other, relating to how he came to adjust the marks of the grievor. That is another example of someone being untruthful in giving testimony. We are convinced that the conflict in the evidence is not a result of fading of memories or an inability to recall. Firstly, the grievance was filed soon after the competition results were announced. Therefore, the competition was put into contention and that has remained so until the matter came before this Board. Moreover, the witnesses did not give any ~indication that they were having any difficulty recalling. They were very definite about their testimony, and described the events in detail. For instance the testimony about Mr. 21 Kimberley's marks being too high. The only conclusion we can reach is that someone was being untruthful before the Board. Ms. Quick for-the Employer submits that while there were some flaws in the process, it met the threshold requirement. We disagree. The procedural defects, combined with the other factors we have reviewed lead us to the inescapable conclusion that the selection process was fatally flawed and its results cannot be allowed to stand. The Employer presented statistical evidence in an attempt to show that even if Msl Sandland's marks are ignored and even if the marking was adjusted to remedy the defects alleged by the Union, still Ms. Williams would have finished well ahead of the grievor. We have considered that evidence but attach no weight to it. The problem with the selection process here is not simply one of wrong marks being allocated. The inconsistent marking is part and parcel of- a larger problem of bias. On the totality of evidence we have reason to believe that Ms. Williams received preferential treatment from Ms. Sandland and Ms. Kelly. Disregarding of Ms. Sandland's marks achieves nothing because, we have no assurance that her pr~'ference for Ms. Williams did not influence the other members of the selection panel. 22 Now we turn to the issue of remedy. The grievor was the only candidate who grieved the result of the'competition. At the time of the competition she held the position of group leader, which was identical in classification and remuneration to the position held at the time by Ms. Williams. The Board had the benefit of hearing both employees being examined and cross-examined about their qualifications, abilities and experience. We also heard about the answers provided by each employee at the job interviews. We have access to all of the relevant documentation with respect to the employees or at least to their contents. On the basis of all of this we are satisfied, and we find, that the grievor had qualifications and ability relatively equal to those possessed by Ms. Williams. Therefore, considering her greater seniority she should have been awarded the job pursuant to article 4.3. On the final day of hearing both counsel informed the Board that the Supervisor, Revenue Control position was being declared redundant effective January 1, 1990. Ms. Quick agreed that in the circumstances it made no sense to direct that the competition be re-run. Also we have found that there was an element of bias on the part of the Employer. The lack of candour on the part of employer witnesses, including some senior management personnel, raise questions about their ability to run a further competition involving the grievor in good faith. Besides, we were informed on the final day of hearing that Ms. Williams had vacated the position in question and had left the government 'service. It is in these circumstances that the Board feels that it is appropriate to take the somewhat exceptional step of awarding the position to the grievor. Accordingly, the Employer is directed to award the position' of Supervisor, Revenue Control forthwith to the grievor, and to compensate the grievor for all losses resulting from its failure to do so following the job competition. The Board remains seized in the event the parties have any disagreement in implementing the terms of this award. Dated this 3rd day of January, 1990, at Hamilton, Ontario Nimal V. Dissanayake Vice-Chairperson John McManus Member Michael O'Toole Member