HomeMy WebLinkAbout1988-1402.MacDonald.92-01-29 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPL 0 YEES DE L'ON TA RIO
GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
'180 OUNOAS STREET WEST, SUITE 2100~ TORONTO, ONTARIO. MI5G '~ZB TELEPHONE /TEL~PHOI'~E' ~,~ ?6) 326- 12E8
;'BO, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTAR/OJ MSG 1Z8 FACSIMILE/T~-L~COPIE. (4~6,i 325-1296
3.402/88
IN THE MATTER OF AN ARBITMATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING &CT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OLBEU (MacDonald)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Licence Board of Ontario)
(Liquor Control Board of Ontario)
Employer
BEFORE: W. Low Vice-Chairperson G. Majesky Member
D. Daugharty Member
FOR THE F. Campbell
GRIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE S. Shamie
EMPLOYER Counsel
Hicks, Morley, Hamilton, Stewart, Storie
Barristers & Solicitors
HEARING May 17, 1991
DECIBTON
The Grievor, Ivy MacDonald, grieves that she was not
awarded the position of an inspector with the Liquor Licence Board
of Ontario with a classification of Licence Inspector, Grade 2.
Ms. MacDonald has been employed since 1975 by the Liquor Licence
Board, and at the time of the grievance held the position of Acting
Assistant Licence Officer. Ms. MacDonald grieves pursuant to
Article 21.05(a) of the Collective Agreement between the Liquor
Control Board of Ontario and the Liquor Licence Board of Ontario
and Ontario Liquor Boards Employees' Union. There are two issues
before the Board:
(a) Was Ms. MacDonald qualified to perform the work of
the posted position of Inspector? and
(b) Was the selection process fatally flawed?
The Grievor does not challenge the five fundamental
propositions put forward by the employer relating to the rights of
management in selecting a candidate to a position, namely:
1. That management has the right to determine the
qualifications of the job on the basis of relevance
to the job, provided that the qualifications are
not set in an arbitrary fashion or in bad faith;
2. That "qualification" means that the candidate must
possess knowledge of the job functions and possess
sufficient skill and ability to carry out the
requisite tasks and perform the work required by
the position at a full working level at the time of
2
the competition;
3. That if the candidate does not have the minimum of
qualifications, there is no obligation on
management to interview or to hire;
4. That the initial onus is on the grievor to show
that he or she is qualified; and
5. That if the grievor meets this onus, then the onus
shifts to the employer to show that the grievor is
unqualified.
In the competition announcement which was Exhibit 4 in
this hearing, the qualifications for the position were set out as
follows:
"Knowledge of the Liquor Licence Act and Regulations
sufficient to provide guidance on, and enforce its
contents; demonstrated ability to interpret and apply
legislation and regulations; good knowledge of the
principles of law enforcement, investigative techniqueB
and the hospitality industry; excellent report writing
and verbal presentation skills; ability to interact with
law enforcement and regulatory agencies, licencees and
the public; ability to work independently, making
difficult decisions and meeting deadlines; willingness to
work variable hours including nights, weekends and
statutory holidays; valid driver's licenc{ (must be able
to initially provide office space within place of
residence) and be willing to travel and relocate anywhere
in Ontario."
The grievor contends that she is qualified to perform the
work o7 inspector by reason of the experience gleaned in the course
of her duties as secretary, typist, and more latterly, as a Permit
Approval Clerk and Acting Assistant Licence Officer. The Grievor
testified that, as secretary from 1975 to 1979, she had worked with
inspectors, typed their statistics and their reports and answered
their telephone calls. Between 1979 and 1982 when she held a
position as typist, she worked with a Licence Officer doing routine
office work. From time to time, she had dealings with inspectors
in the nature of filling out forms requesting that an inspector go
out to take measurements of premises, and as Acting Licence and
Permit Officer, she also sometimes had dealings with inspectors.
The Grievor also indicated in her application letter enclosing her
resume that she had been "researching law enforcement and
investigation". The Grievor's work experience, however, as appears
in her resume and in her oral evidence, was within the area of
processing licences and permits. The employer does not dispute
that the Grievor'8 performance record in the posts that she held
was excellent.
The vacancy for the inspector position was advertised on
July 22, 1988, and closed on August 5, 1988. The Grievor was one
of the three internal candidates, but none was granted interviews
in the first instance. However, the Grievor was granted an
interview pursuant to a settlement ~f ~wo earlier grievances, the
memorandum of which was made Exhibit 6 in this proceeding.
Candidates for the position were evaluated in seven
areas. Each area was assigned a weight and the evaluation of each
of the areas was marked on a five point scale as follows: 0 for
4
unacceptable; i for insufficient; 2 for basic: 3 for suitable; and
4 for superior. The weighting of the various areas of evaluation
ranged from 1 for those areas where only a basic understanding is
required, to 4 for those areas considered to be very important.
The first area of evaluation was "qualifications" which
was given a weight of 4. Two aspects of qualification were
considered and evaluated: law enforcement experience and
hospitality industry experience. The Grievor was rated with a
or an unacceptable score in both areas as she had neither law
enforcement experience nor hospitality industry experience, nor any
education or training in these fields.
The interview portion of the Process was designed to
evaluate the candidate's understanding of the role of an inspector
and of the Board, her understanding of the Liquor Licence Act and
Regulations, her judgment and her analytical and problem-solving
skills. There were as well some general questions and a written
test. Overall, the Grievor did not achieve a weighted score which
was at the "suitable" level. Out of a total maximum weighted score
of 84, the Grievor achieved a total weighted score of 41.37 or 49%.
On the issue of q~/alifications, the grievor acknowledged
oD c~oss-examination that good knowledge of the principles of law
enforcement and investigative techniques and of the hospitality
:- industry were important qualifications for the job of inspector.
.....
,;
5
No evidence was adduced to suggest that the Grievor had either a
good knowledge of the principles of law enforcement and
investigative techniques nor the hospitality industry, nor that she
had any experience in these fields. It was contended that because
the Grievor, in the course of her employment, had dealings with
inspectors, and had on two occasions gone out with inspectors on
their duties, that she therefore had relevant experience and that
because the Grievor had been reading up on law enforcement and
investigation, that she had gained some knowledge of these areas.
We cannot accede to this argument. If I were to read a book on
surgical techniques, type medical reports for some years and
witness several surgical operations, these experiences do not make
me qualified to perform surgery. Nor does the kind of contact
which the grievor has had with inspectors make her qualified to do
their job. Knowledge and experience in the context of
qualification for a position must denote a quality of learning
which is substantially directed at acquiring those skills necessary
to perform the tasks required of a person holding that position,
and not merely knowledge of a tangential nature, such as would be
acquired through dealings on occasion with a person holding such a
position.
Mr. Aldous, Director of Inspections and a member of the
Selection Panel, testified and indicated that actual experience or
formal education in the areas of either law enforcement or the
hospitality industry were the qualification criteria used. We can
6
find no reason to depart from the Selection Panel's criteria, and
given the evidence before this Board that the Grievor had neither
formal education nor practical experience in these areas, we cannot
make a finding that the Grievor was qualified for the position.
During the course of argument, we were referred to the
decision of Arbitrator McLaren in Sabharwa] (322/82), for the
proposition that the employer has an obligation to provide a period
of familiarization. We note, however, that in the Sabharwa7 case
it was a finding of fact that the employer did not require an
absolute threshold level of knowledge of the skills required to
perform the tasks of the position applied for, and as well, in that
case the grievor had done work in the position on a fill-in basis
while the predecessor incumbent was absent. The Board found as a
matter of fact that the grievor had the necessary qualifications to
do the job in accordance with the job posting. In our view,
therefore, that case is not applicable to the facts before us. We
are also mindful of the more general proposition referred to us and
re-stated in the Barry decision of Arbitrator Swinton (334/80),
that an employee seeking promotion must be qualified at the time of
the job posting in the absence of ~ provision .in the Collective
Agreement entitling the candidate to either a trial or training
period.
Counsel for the Grievor also referred to Article 21.9(a)
of the Collective Agreement which provides as follows:
7
#In the event an employee who has been promoted is unable
to perform the requirements of the position in a
satisfactory manner within a period not exceeding three
(3) months from date of appointment, the employee shall
be reclassified to the employeefs previous classification
and assigned to the step in the salary range attained
immediately prior to promotion.#
In our view, Article 21.9(a) is not intended to provide for
probationary promotion of an otherwise unqualified candidate, and
therefore the Article has no applicability. In summary, we are
unable to find that the Grievor was qualified for the posted
position, and would dismiss the grievance on that ground alone.
We are asked to consider, however, whether the procedure
was flawed, and it is submitted that in the event that we find the
procedure to be flawed, a rerun should be ordered. It is contended
on behalf of the Grievor that management acted unfairly and
unreasonably in assessing her qualifications. It is argued that,
because the interview was given in fulfilment of the settlement of
the Grievorfs prior grievances that the interview was a formality
only or had that appearance. It is also argued that the Grievor's
knowledge of law enforcement was assessed solely through a review
of the Grievor~s records and that the interview did not elicit such
knowledge. Thirdly, it is argued that an inappropriate weight was
given to the interview as opposed to the written test, and that the
interview was subjective whereas the written test was objective and
ought-to be more heavily weighted.
There is no suggestion that there was any difference
i.
?
8
between the way the Grievor was evaluated as opposed to the way in
which any of the other candidates was evaluated, and there is no
suggestion that the mechanisms used to determine 'qualifications
were other or less than those published in the competition
announcement, namely the resume/application, the personal
interview, related testing and references. Management appears to
have considered those documents and appears to have undertaken
those investigations which it indicated it would do in the
competition announcement.
While it was suggested that the Grievor~s interview was
a mere formality, no evidence was adduced in support of this
contention, and we are not able to find that the interview was not
bona f~, notwithstanding that it arose by reason of an earlier
settlement. As to the Grievor"s ~nowledge and experience in law
enforcement, investigative techniques and the hospitality industry,
we note that the first question on the interview was: "Please give
a history of your education, training and experience concentrating
on those matters which you believe would be of value in this
position.". The question appears to be expressly designed to allow
the candidate to expand on any experience and education either not
covered in the resume or not adequately dealt with therein. Thus,
the Grievor had the opportunity, during the course of the
interview, to bring to the attention of the Selection panel any
relevant training and experience she may have had. On the basis of
the foregoing, we cannot find that the method used by the Selection
9
Panel in evaluating the Grievor~s qualifications was flawed. If
indeed questions relating to the Grievor~sknowledge and experience
ought to have been asked at the interview were not asked, and the
procedure was for that reason flawed, we cannot find that the
result would be different but for that flaw for it has been
acknowledged that information which would have been responsive to
such questions was put before this Board during the course of this
arbitration, and based upon the evidence so led, we are unable to
come to any different conclusion as to the Grievor~s qualifications
from that reached by the Selection Panel.
Finally, it was argued that undue weight was given to the
interview which, it is said, was subjective as opposed to the
written test which, it is said, was objective. We are of the
opinion that this Board ought not to try to second guess the
Selection Panel's assessment of what kinds of knowledge and skill
are most vital to the performance of the Job as opposed to other
knowledge and skills which are less vital, unless it is patent that
the Selection Panel has strayed from the fundamental principle that
qualifications must be relevant and not arbitrary or set in bad
faith. As for the contention that the written test was objective
whereas the interview was subjective, and the implicit corollary
contention that the objective test is more reliable, we would make
the observation only that the nature of the job to be performed
will determine the appropriate nature of the investigation and
testing of the abilities of candidates for the position. In our
l0
view, where a position requires the exercise of judgment,
discretion, delicacy or discernment, an appropriate assessment of
candidates for such position would entail more testing calling for
subjective responses than a position entailing duties of a highly
technical nature which might call for testing of a more fact-
oriented or objective nature. This is not to say, however, that
objective testing cannot be carried out orally or that subjective
testing could not be carried out by way of a written test. There
is no correlation between the two. In this particular evaluation,
the written test, which appears to test the candidates knowledge of
the Act and Regulations, as well as the ability of the candidate to
write a report based on a sample situation, was given a weight of
2 in importance and an overall possible score of 8 out of a total
of 84 points. The candidate's understanding of the Liquor Licence
Act and Regulations was also tested in Part B of the interview,
which was assigned a weight of 3 with a total possible score of 12
out of 84, therefore totalling 20 marks out of 84 which deal with
the candidate's knowledge and understanding of the legislation.
The balance of the marks are allocated chiefly among qualifications
and areas assessing the candidate's analytical judgment, problem-
solving skills, communication skills and her comprehension of the
roles of the inspector and of the Board. No evidence was adduced
to suggest that any of these areas was not relevant, nor to suggest
that the relative weights given to these areas was inappropriate or
set in bad faith, and there was no material before us upon which we
could make a finding that the weight given to each of these areas
11
was inappropriate or unfair. Accordingly, we are unable to accede
to the contention that the selection procedure was flawed.
For the foregoing reasons, we therefore dismiss this
grievance.
WAILAN LOW- Vice Chairperson
" I D£ssenr" (Dissent co [ollow)
GARY ]~ESI(Y- Member
Between:
ONTARIO LIQUOR BOARD EMPLOYEES' UNION
-and-
THE CROWN IN THE RIGHT OF ONTARIO
(Liquor Licence Board of Ontario)
The Grievance Settlement Board
Grievance of MacDonald
1402/88
UNION NOM1NE. E PARTIAL DISSENT
After reviewing the evidence presented in the hearing, I am of the opinion that
perhaps the grievor's real motive for seekin~ the LC.BO In_~pectors job, stemmed not on the
basis of whether or not she possessed ceFlain professional credentials; but, was based on her
observances of LCBO hiring practices during the seventies and early eighties.
Pa~cularly, it was stated in the hearing ~_h.at the position the grievor applied for in
a job competition, was for many years t-filed through an Order-ia-Council process. In other
words, the jobs were pofitical patron_age posRions. Over the last five or six years, the
Ontario Government has attempted to clean-up the irregnlnrities and abuses that this
political hiring process created. The problem is that the grievor worked ia the same
department as the Inspectors, and through years of observation was not obviously
impressed witl~ their depth of talent or capabilities. In addition, the grievor also noted that
one of the secretaries she worked with also got a promotion to inspector in this manner.
After witnessing first hand the internal processes of the iuspectorate department, she clearly
believed she was of equal ability to others~ and could handle the job.
Sadly, although the grievor's perceptions with respect to her ability to do the job are
well founded, the reality is that the LCBO has put in place Human Resource structures
which would address irregularities in the former hiring process. As a result, all positions
require a formal job competition based on a desire to seek out the best candidates in terms
of skill, ability and experience. As a result, the hiring process is not whether the grievor
can do the job, but whether, compared to a field of job candidates, is the grievor the best
of the bunch. And that's the way it works in 1992.
One f'mal editorial note. The formal abuses which existed in the Order-in-Council
process to f'dl job vacancies, has left a legacy in terms of the perception on other staff in
the civil service who were disenfranchised because of not being politically in the know. And
as a result, some civil servants will harbour negative feelings of this former regime.
Additionally, it also demonstrates that perhaps these jobs didn't require the technical
sophistication that the Human Resource Planning function tends to ascribe to jobs over
time. Because it's obvious that unqualified staff got jobs throu?,h the political route, and
in the end, I suspect they learned the job and became relatively competent over time.
Perhaps the grievor in this matter harbours the same sentiment. And frankly, I can't
disagree with her. ,
Respectfully submitted by,
Fp.~UR CONSULTANT SERVICES ..~? /Z I/ ,z '
./:' ,- - ,~ . : ,
-- Gan Maje~y
Union Nominee
GM/mg
MARKHAM, Ontario
. June 15, 1992