HomeMy WebLinkAbout1988-0659.Binkley & Reid.89-07-17 ONTARIO EMPLO¥~.$ D~ LA COLIRONNE
CROWN EMPLOYEES DE L'ON~ARIO
GRIEVANCE c,OMMISSION
DE
SETTLEMENT REGLEMENT
BOARD 'DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/T£L~'PNONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (4'i6) 598-06~8
659, 660/88
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
'Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
0PSEU (T. Binkley, R. Reid)
Grievor
- and -
The Crown in Right of Ontario
(Ministry. of Transportation)
'Employer
Before:
M.V. Watters Vice-Chairperson
J. McManus Member
M. O'Toole Member
For the Grievor: I. Roland
Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
For the Employer: M. Smeaton
Manager Staff Relations
Human Resources Branch
'Ministry of Transportation
Bearing: May 8, 1989
This proceeding ar{ses from the grievances of Mr. Thomas
Binkley and Mr. Robert Reid wherein they grieved the employer's
failure to Start them a~ interv[e~ for the position of I~spector
Signs and Buildings Permits in Competition #NR/B8/33/MW. This
position was located in the District 14 Office of the Ministry of
Transportation in New Liskeard, Ontario. it was classif.ied as
Inspector of Signs and Building Permits 2.
After the presentation of evidence, counsel for the union
indicated he would not be arguing that Mr. '~inkley should have
been accorded an interview. This award, therefore, focuses on
the complaint of Hr. Reid.
~r. Derek Barkley, the successful candld~te in the
competition, was notified of the proceedings and of his right to
attend and fully participate in same. Re elected not ~o attend
the hearing. The matter consequently proceeded in his absence.
At the commencement of the hearing, the board determined
that the onus rested with the employer to establish it acted
properly in denying an intervie~ to the grievor. Given the
existence of this onus, we required the employer to proceed first
vith the presentation of its case, In so ordering, the board
relied on the comments found in Borecki, 256/82 (Swinton) and in
Balics, 42/84 (Veri~y), both of which dealt wi~h a similar issue.
The posting for the position here in question read in
part:
JOB:
As an Inspector of Signs and Buildings, you will be
responsible for administering ~he Ministry policy in
respect to Signs, Buildings and Entrance permits
~hroughout the District by performing ~asks such as:
- advising and directing applicants on the
regulations and procedures pertaining to their
applications;
- reviewing all applications for permits and
renewals;
- investigating and issuing or rejecting o~ permits
tO erect signs, buildings, repairs or alterations
to buildings and entrances or encroachments of
Ministry property;
- patrolling an assigned area of ~he Distrlc~ on.a
regular basis, visually inspecting for non-
compliance and to acquaint oneself with changes
and/or new developments;
- resolving infractions by persuasion or initiating
the legal steps required;
- preparing letters of non-compliance, infraction
and/or rejection;
- reading and interpreting plans;
- maintaining a close liaison with the District
Maintenance Patrol Supervisors;
- compiling reports as required.
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THE'CANDIDATE
MUST RAVE:
1. Demonstrated experience in the inspection of signs and
buildings applications and permits areas; (See Special
Note
2. Sound knowledge of the policies, procedures and
legislation (i.e. Public Transportation and Highway
Improvement Act) governing the ~ssuauce of signs
buildings permits;
3. A valid Ontario Driver's Licence and acceptable driving
record.
SHOULD HAVE: ~
1. Ability to interpret and apply various regulations
governing location of structures, encroachments, signs
or other p~tential visual impediments on land wi~hin and
adjacent to limits of the right-of-way of provincial
highways;
2, Ability to resolve problems and make firm decisions when
dealing with the public;
3. Ability to read and interpret plans;
4. Effective verbal and written communication skills;
5. Tact, initiative and sound judgment.
NOTE: When. submitting an application/resume for this position,
you should ensure that you clearly indicate how your
skills and knowledge relate to the qualifications stated
above."
(Exhibit 3).
In addition to the above, the posting also contained the
following special note:
"Candidates with lesser qualifications are welcome to
apply and, if selected, will be compensated with salary~
and classification commensurate with qual~flcations."
The posting was initially prepared by staff in the
Personnel Section of the Ministry. It was subsequently reviewed
and approved by Mr. G. J. Ricker, the District Engineer, to whom
the successful candidate would report. Mr. Ricker also served as
the chairman of the selectlon panel. Mr. P. Pawliuk, District
Maintenance Engineer, and Mr. D. Packwood, Supervisor of Signs
and Build~ngs (Downsview), were the remaining members of the
panel. These latter two gentlemen were not called upon to
testify at the hearing. Mr. Ricker stated in his evidence that
the "must haves" and "should haves" were directly referrable to
the position specification which was filed with the Board as
Exhibit 7. The board has reviewed and compared the posting and
the position specification. In our judgment, the posting is
consistent with the summary of duties and required qualifications
as set out in Exhibit 7. Indeed, the union did not appear to
seriously dispute the adequacy of the posting.
Two further aspects of the posting merit comment.
Firs£1y, it did not specifically require "a minimum of one year's
experience in a position classified as Inspector of Signs and
Buildings Permits 1." This lantuale is found under the heading
of "'Qualifications" in the Class Standards for Inspector of Signs
and Buildings Permit 2. The for~er classification "is the entry
and tr~inlng level for positions of employees~.., who carry out
field inspections to enforce the %egulatlons covering the
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. ?
construction and installation of structures on or adjacent to
provincial hishways." The latter class£fication is best
described as the "working level" for positions of employees,
performing the responsibilities generally outlined on the
above-mentioned posting. Mr.-'Ricker testified that the District
under his administration did not have any positions classified at
the entry or training level. Secon'dly, the posting contained the
'Special Note' previously cited. Identical language had hee~
employed in a prior posting and was designed to address the
possibility that there might be no fully qualified applicants.
From the evidence presented, it was clear that ~r. Ricker
intended to underfill if such possibility materialized. Indeed,
he s~sted that if the interview with ~r..Barkley had not "worked
out", he would have looked to the other applicants to determine
who could have effectively functioned in the position on an
underfill basis. The hoard concludes from the above that one
year's prior experience at the entry or training level was not a
condition precedent for consideration in this competition.
The competition process may be summarized as follows:
(i) Subsequent to the posting an 'Applicant Listing and
Screening' form was prepared by the Personnel Section
(Exhibit 9). This form listed the applicants on the
left side of the page and set out ~he "must haves" and
"should haves" in abbreviated style across the top,
The applications from the thirteen persons who ultimately
applied for the position here in question were then
reviewed by a Personnel Officer to determine if they
possessed the stated qualifications, t mark was placed
on the form if a particular candidate appeared to have
each of the identified qualifications. Thereafter,
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the candidates were rated on the basis of whether they
met, partially met, or did not meet the advertised
criteria.
(ii) It was the assessment of the Personnel Officer that only
Mr. Barkley met the advertised criteria and was there-
fore the sole candidate to be interviewed. Specifically,
Exhibit 9 reflected their opinion that Mr. Barkley
possessed ali of the "must haves" and four-fifths of the
"should haves". From the vantage point of the officer,
this candidate's written submission did not disclose his
level of tact, initiative and sound judgment. With
respect to Mr.-Re/d, it was the officer's determination
that he possessed all but the first "must have", that
being "demonstrated experience in the inspection of
sig~s and buildings applicatlous and permits areas."
The grievor was deemed ineligible for an interview as a
consequence of this.perceived gap in his qualifications.
(iii) The Applicant Listing and Screening form was next
reviewed by Mr. Ricker to ensure that it had been
properly completed. This necessitated consideration
of the written material submitted by each of the
applicants, including the applications of Mr. Barkley
and Mr. Reid.
The application of Mr. Barkley filed as Exhibit 6
disclosed that he had occupied the position of Inspector of Signs
and Building Permits 1 in Sault Sra. Marie, Ontario from
November, 1985 to the time of the competition in April and May,
1988. His duties were described as follows: "Receive and review
applications for building and land use, entrances, signs,
encroachments, severances, minor variances and re-zoning on of
adjacent to Kings Highway. Checking pertinent information,
contact applicants and inspect work site, determine whether
permits to be issued or refused. Forward comments for
severances, etc. to Corridor Control Section. Submit sign and
encroachment data to computer and correspond with public.
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Operate mu'ICi-channel radio system during Winter Maintenance
operations." It would appear that Mr. Barkley performed the
above-mentioned inspection work for approximately eight months
each year. In the period November, 1980 to November, 1985, Mr.
Barkley was employed by the Ministry as a Stock Clerk II Supply. '
His responsibilities in such position related to the receipt,
issuance and recording of stock, During the construction seasons
· of 1975 to 1980 inclusive, Hr. Barkley worked as a Technician II
Surveyor and as a Survey Technician. Working under a party
chief, he then performed "various survey duties such as taking
measurements and calculating quantities for payment on
constr'uction contracts; plotting cross sections and keeping time
in office; reading and interpreting construction building and
property plans for lay out purposes," Hr. Barkley had also taken
courses offered to public servants in the areas of (1) Excellence
in Customer Service; (ii) Dealing with the Public; and (iii)
Business Communications.
The application of Hr. Reid filed as Exhibit 4(b)
contained the following statement as ~o his prior work history:
"Since commencing employment with the Ministry in
August, 1970 as a Tech 1 Survey, I progressed to a
Tech 3 Survey during the six years-! was with the
Construction Branch.
Also during this period, I successfully completed the.
Highway Inspector 2 & 3 courses along with advanced
soils and concrete courses.
In October~ 1976 ! then transferred to the Maintenance
Branch of the Ministry. I started as a manual worker and
progressed to a Group 3 Operator. In my years with the
Ma£ntenance Branch as Acting Patrol Supervisor, I have on
occasion gone out with the Inspector of Sign's and
Buildings and inspected the lo,nylon of new entrancek
and assisted tn the decision as to whether a permit
should be issued. As Acting Patrol Supervisor, I also
had to notify the Signs and Buildlng Inspector of poorly
constructed entrances and illegal signs which had been
erected. Also while working with the Construction Survey
Branch, I assisted in the updating of plans for the signs
and buildings branch.
As Acting Patrol Supervisor I would receive a11. the new
permits which were issued within Patrol limits and would
inspect the c~nstruction o£ entrances and erections of
signs and so forth as to whether they were constructed ~as
per Ninistry regulations.
With my many years of experience both ~ith the
¢onstructlon and Maintenance Branch, I have gained
knowledge of :he Public Transportation and Highway
Improvement Acts as ~ell as regulations pertaining to
the issuance of. signs and building permits.
I have a valld Class "A' driver's licence and a very
good driving record. I am accident free.
! 'have on many occasions, while working as Acting Patrol
Supervisor~ dealt with the public, municipal representa-
tives and lay enforcement off. icers in the performance
of my'duties and I have handled various situations
without any apparent problems.
I have the ability to read and interpret plans as I had
six years experience with Construction Survey and
completed my Tech 3 Survey papers.
I can communicate both verbally and in writing and
while acting as Patrol Supervisor I had to issue verbal
and written orders to patrol staff and communicate with
the public.
In 1987, I took a first llne Supervisor~a course in
North Bay which I successfully completed.
While working wi~h maintenance and construction branches,
I was required on occasion to work without close super-
vision which therefore required me to use my ability
to initiate work assignments, use :act in deallng with
patrol staff and to utilize sound ~udgment.when dealing
with unusual situations as they arose.
-8-
Ny ~experience and knowledge with the Hinistry in both
construction and maintenance fields would prove to be
a definite asset in the performance of the duties
outlined in this competition."
A£ter reviewing ~r. Barkley's application, Nr. Ricker
concluded that he was more qualified than any o[ the other
applicants for the position. This conclusion was largely
premised on the fact that h.e was the only person who satisfied
all of the "must haves". Mr. Ricker then proceeded to contact
this candidate's supervisor in Saulc Ste. Marie. In response Co
his queries, he was informed that ~r. Barkley was performln§
competently at the Inspector I level. It was the supervlsor's
further assessment that he would perform in a similar fashion at
the higher level were he accorded the position.
Upon a review of ~r. Reld~s application, ~r. Ricker
concluded that the Personnel Officer had improperly given him
credit for £he second "must have", this being sound knowledge of
the relevant policies, procedures and legislation, It was his
opinion that while the grievor might have some knowledge of same,
he would not have the "sound knowledge" as required in the
postin§. Mr. Ricker discounted the experience claimed by the
grievor in his application, Specifically., he doubted whether Mr.
Reid had assisted the former Inspector in the approval and
-9-
issuance of permits. Additionally, while he conceded that the
grievor would have obtained relevant experience while acting as
the Patrol Supervisor vis a vis the review of permits, and the
identification of infractions, he did not think that such would
provide him with the degree of knowledge necessary to function in
the position.. In arriving at this assessment, the District
Engineer believed that the grlevor had only acted as Patrol
Supervisor for a period of some two and one-half months, and that
it was unlikely that he assisted the Inspector more than once per
month. Mr. Ricker did not contact the grievor's supervisor to
determine if, in fact, he possessed the experience and
qualifications claimed in the application. While he himself had
not directly supervised the grievor, it was his opinion that the
grievor's past work history would have not equipped him for the
job in qu'est'io~. Given his ultimate conclusion that'Mr. Reid did
not possess two of the three "must haves", Mr. Ricker elected
against providing him with an interview opportunity. From his
perspective, a candidate had to possess all of the qualifications
considered as "musts" before they would be granted an interview.
As a consequence of the above-noted assessments, a
decision was taken to only interview Mr. Barkley. Subsequent to
the interview, this applicant was awarded the position.
-I0-
~t ~as the 8r~evor~s assert[on that he ~ad t~e requisite
experience ~or the position. ~e conceded ~n th~s regard that a
period o~ under[~ll might be necessary so as to acquaint him ~:h
all aspects of the ~ob. ~he gr[evor d~d not, hovever~ appear to
consider that such period would be close to six months as
suggested by Nr. Ricker in his evidence. Essentially, £u suppor~
of his claim, the grievor relied on the breadth of experience
accumulated in the Construction and Maintenance Sections.
Additionally, he testified that over a four year period, he had
actually worked as the Patrol Supervisor for an aggregate of six
months.' It was his evidence that this permitted him an
opportunity :o work closely with Hr. Charbonneau, the Inspector.
Speci£ically, he stated that on two to three occasions he
assisted with the decision as to whether a permit should be
granted, and that on another eight to ten occasions he
accompanied the Inspector to the site to provide what was
referred .to as a "second opinion",
It was the position of the employer that the competition
vas fairly conducted in its entirety, The employer submitted
that :he pre-screening mechanism was approprlace in that the
criteria used reflected the qualifications se: out in the
position specifications, Simply put, the employer asserted that
~ the grievor had failed'to demonstrate possession of the requisite
qualifi~atlons. It was therefore proper to deny him an interview
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in the circumstances. It was further submitted that Mr. Barkley
was the more qualified candidate and that there was no evidence
to suggest that the competition was biased in his favor. The
board was cheref, ore asked to sustain his selection. Alternately,
if we were to find in the union's favor, we were urged not
require a second competition. Rather, it was argued chat a
declaration to the effect that an interview should have been
provided would be sufflc£ent as Hr. Barkley was clearly the
superior candidate. Reliance was placed on Borecki, previously
cited, and on Tully, 1622/87 (Kirkwood) fn support of the
employer's submission.
It was the position of the union that Hr. Ricker erred in
his decision not to interview the grievor. It was submitted that
he improperly discounted the experience referred to in the
grievor's application as he was under the mistaken belief that
Hr. Reid had worked as a Patrol Supervisor for only two and
one-hall months, when, in'fact, the period of such employment was
closer to six months. Further, counsel for the union argued that
the District Engineer failed to consider the experience gained by
the grievor when he assisted the Inspector. The thrust of the
submission was to the effect that the grievor's past experience,
as detailed in the application, was sufficient for the position
which was posted and that if the employer had any question as to
the adequacy of same, such should have been addressed in an
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interview. Emphasis was also placed on the failure of Mr. Ricker
to speak to the grlevor's supervisor as had been done in the case
of Mr. Barkley. Such an approach would have permitted the
employer to make a more reasoned assessment of the qualifications
claimed by the srievor. The board was asked to conclude that the
position being sought was not excesslvely complex and that the
incumbent could resort to manuals in respect of applicable
policies and procedures. By way of remedy, the board was
requested to order a re-run of the competition by a fresh panel.
Such re-run would be restricted to Mr. Barkley and the grievor.
The board agrees with the statement found in the Balics
award that "The responsibility lies with the grievor to set forth
in his written application his related qualifications and
abilities in order to reach .the interview stage of the
competition" (page 11). We think that the grievor in this case
clearly satisfied this obligatlon. It is readily apparent from a
review of his application that he made a deliberate attempt to
conned: his skills and knowledge to the qualifications outlined
in the job posting. In so doing, he fully complied with the
instructions set out in the posting as to the presentation of the
application or resume. The board similarly concurs with the
following excerpt from the Borecki award:
"In conducting a job competition, an employer can not
be required to interview all the applicants, regardless
of their suitability. When numerous applications come
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forward, as is common in the public service with its
large number of employees, questions of efficiency and
cost may require some screening of applications. At
times, only those meeting the basic quallficaCions may
be considered. Of course, these qualifications must be
reasonably feinted to the job in question. At other
times, the pool of apparently qualified applicants may
be so large that a ranking of the most qualified will
have to occur and only Chose with the highest scores
will be called for an interview and further considera-
tion. The ranking, again, must be reasonable in the
sense that each candidate's qualifications are
reasonably evaluated." (pages 7-8)
We note that in this instance there were only thirteen applicants.
Additionally, the grievor worked in the very Oistrict in which
the vacancy occurred. In our estimation, the matter cannot be
resolved through considerations relating to cost and efficiency.
We think that ultimately the result in the case turns on whether
Mr. Reid's qualifications were reasonably evaluated.
The board has some concern over the manner in which Hr.
Ricker assessed the gr£evor. The District Engineer di£fered with
both the Personnel Officer and with the grievor as to whether the
latter possessed certain of the qualifications and experience
listed in the application. His skepticism was premised partially
on his general understanding of the positions which the
grlevor had previously occupied. Further, his conclusion that
the grievor was insufficiently qualified was based on an
underes:imate of the experience gained as Acting Patrol
Supervisor. Mr. Ricker also did not appear Co consider the
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experience generated as a consequence of the grlevor hsving
assisted the inspector. We think that given the content of the
grievor'8 application, Mr. Ricker should have attempted to
resolve.any doubts thaC he had pertaining to qualifications
through contact with the supervisor or through the interview
process, Bis failure to do so has led us to conclude £hat he did
not sufiiclently direct his attention to the qualifications and
experience of the grievor a's expressed in the application form.
The board has considered what effect should be given to
the statement of qualifications found in the ~lass standards for
Inspector of Signs and Buildings Permits 2. As indicated above,
such require *'a minimum of one year's experience in a position
classified as Inspector of Signs and Buildings Permits 1". More
specifically, does Chis inclusion preclude the granting of an
interview to a person not possessing such experience? After
considering the question, it is our judgment that the grievor was
eligible for an interview notwithstanding the fact chat he had
not previously worked as an Inspector 1. The employer obviously
contemplated that it might interview those without all of the
technical qualifications. 'This was evidenced by the special note
found in the posting. Indeed, Mr, Ricker testified that had Mr.
Sarkley's interview not "worked out", the panel would have
resorted to 'the other candidates to de~ermine the appropriateness
of an underfili. Of even more significance is the lack of any
mention in the posting of the pre-requisite chat an inspector
must have one year's experience at the lower level. To the
contrary, the special note was likely designed to solicit
applications from employees, such as the grievor, who had eot
previously acted as an inspector.
While there may be circumstances in which the difference
in quallfications could support a decision by the employer to
interview only one applicant, we do not consider this to be the
situation here. In ~iew of the wording contained in the posting
and the qualifications of the grievor as expressed both in the
application .and at the hearing, we are of the opinion that the
grievor should have been accorded an interview. The board
therefore orders that the competition be re-run by a differently
constituted panel, as between Mr. Barkley and Mr. Reid. The
employer is to make every reasonable effort to discount the
experience gained by the former since his success in the
competition which has been the subject of this award. We wish to
emphasize that our decision is not intended to adversely reflect
on Mr. Barkley's credentials. He may yet prove to be the
superior candida:e, What we in:end to convey is our judgment
that the grievor should have been interviewed, not as a matter of
courtesy but to ensure that the collective agreement provisions
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in respect of competitions ~ere properly adhered to,
The grievance of Nr. Reid is therefore alloyed.
DATED ac ~/indsor, Ontario, this 17th day of July , 1989.
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ADDENDUM
Although I concur in the disposition of the grievance, I wish
to dissociate myself from the ruling of the majority requiring
the employer to proceed first. In my opinion, there is no onus
on the employer to adduce evidence in a job competition case
until the grievor has first established a prima facie case that
he is qualified to do the job. In so stating I rely on the
award of the Chairman of this Board sitting as a sole
arbitrator in Re: Consumers Glass Company Limited and
Aluminum. Brick & Glass Workers. Local 269. unreported,
December 15, 1986, and in particular, to the following comments
at pages 8&9:
"What evidence then must the grievor or the union
adduce in order to establish a prima facie case where
there is a competition clause. First, the grievor must
establish his or her greater seniority. Second, the
grievor must demonstrate some potential to do the work.
In this regard, the evidence may be very skimpy or
sketchy .... At that juncture, since the employer will
have a more complete understanding of the job and the
job content, it should be incumbent upon it to call
evidence to show why the griever was not given the job
and why someone else was chosen .... "
"In summary, it is my view, that while the onus of
proof in cases involving a competition among employees
remains with the union, there is an onus on the
employer to adduce evidence about those aspects of the
matter which particularly lie within the employer's
competence and knowledge. Very limited evidence is
required from the union or the grievor to make out a
prima facie case."
In my-opinion the authorities relied on by the majority are not
in conflict with the above statement of principle and do no
more than hold that where the grievor has made out a prima
facie case that he is qualified for the job and therefore
entitled to be interviewed, the onus will shift to the employer
to prove tha% it acted properly in denying an .interview.
M.F. O'Toole - Member