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HomeMy WebLinkAbout1989-0035.Labonte.89-09-08 ONTARIO EMp£o¥~$ DE t.4 COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C.OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1,gO DUNDAS STREET WEST. TORONTO, ONTAR,'O. MSG 1Z8-SUITE2100 TELEPHONE/T~.&~PNONE 180. RUE DUNDAS OUEST. TORONTO, (ONTARIO) MSG IZ8- BUREAU2100 (416) 598-0688 35/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOAKD Between: OPSEU (Labonte} Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer Before: M.V. Watters Vice-Chairperson I. Freedman Member E. Orsini Member For the Grievor: E. Shilton-Lennon Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors For the Employer: E. McKnight Staff Relations Advisor Ministry of Transportation Bearing: July 17, 1989 DECISION This proceeding arises from the grievance of Mr. M. Labonte dated February 14, 1989. He therein grieved that he was awarded the position of Purchasing Officer in the Mew Liskea~d District of the Ministry of Transportation pursuant to competition 14-89-01, The incumbent, Mr. G. Wadge, was given notice of the hearing and of his right to participate in same. He was present at the commencement of the hearing and was further informed of his ri9i~t to fully participate in the proceedings as an interested party who could be affected by any award subsequently issued. Mr, Wadge asked for, and was granted, the opportunity to make an openin9 statement, after which he left the hearing room and did not re'burn. The Job Posting for the competition outlined the duties of the position and specified what attributes a candidate "must" and "should "have. The material part of the posting read as follows: THE JOB: Under the direct supervision of the Purchasing Supervisor incumbent will provide purchasing and ordering assistance on District procurement requirements and also provide support to District Warehousing Operations as required by performing duties such as: -Reviewing al 1 requests for proper completion and authori zing signatures; -Assisting in the preparation and compilation of written tenders; -Conducting routine telephone price enquiries and after analysis, recommending most cost effective sour-ce of supp 1 ¥; -Preparing purchase orders for authorizing signatur'es; -Expediting delivery of materials and goods; -Maintaining a formal fi ting system of procurement ,i, documents and sources of supply; -Preparing statistical reports pertaining to procuremer~ activities; -Operating small type "A" equipment for tocat pick-up and delivery in absence of pick-up oper'ator or as required; -Operating a computer terminal as required; -Assisting in perpetual and annual physical stock checks as required; -Assisting at annual auction sale; -Maintaining a stock of purchasing forms; -Direct ng pick-up driver as required concerning local supply pick-ups; CANDIDATE' Must Have -Several years experience in stockroom or equi stores related business environment with an period in a position significantly related to -A valid Province of Ontario Class "G" Driver's Licorice; -An acceptable driving record. Should Have -A general knowledge of purchasing practices; -Some familiarity with fleet repair, road maintenance and construction materials; -Ability to utilize ~anufacturers' catalogues arid parts manuals; -Good communications skills, both written and oral: -Good analytical and decision making skills; -Ability to deal tactfully and effectively wi~h -Ability to maintain records and filing systems; The competition followed the normal course and may be summarized as follows: (i) Twenty five (25) candidates applied for the position. Their applications were pre-screened to determi:~e entitlement to an interview. Thereafter, a decision w~$ taken to interview six (6) of the applicants, including the grievor and the incumbent. 2 (ii) The competition panel was comprised of Mr. A. MacKay, Head of District Administration who served as Chair; Mr. R. McDonald, the management supervisor of both of interested employees; and Ms. J Conroy. Interviews wer'e conducted on February 2, 1989 during which each apoticanC was asked a series of pre-selected questions encompassing three categories, Their answers were subsequently evaluated and accorded a score out of 456 possibie points. The grievor received a score of 416 (91.2%) ~jhile the incumbent scored 392 (85.9%). (iii) The panel next reviewed and discussed the persortnel Cfles of alt Ministry employees that were interviewed. Mr. MacKay then contacted Mr. B. Robinson, the bargairqing unit supervisor of both the grievor and the incumbent, for purposes of obtaining references. His comm~s, which were made during a telephone e×cher~ge, wer'e recorded by Mr. MacKay and subsequently shared wi'bh ti~e panel. (iv) At this juncture, the panel observed that '~he grie'/or' and the incumbent had "similar" qualifications for the position with a "slight preference" being accorded to 9rievor. Mr. MacKay thereupon made reference to Che impact of article 4.3 of the collective agreeme~b. After a consideration of the article, the panel determined that the two candidates were "relatively equal" and tha~, as ~ consequence, the incumbent should succeed by virtde of 3 his greater seniority. Mr. Wadge's seniority date was May 9, 1983; the Brievor's seniority date was June 12, 1984. A recommendation was therefore made t.o the Engineer that the position be accorded to the incumbe,,-~'c, The union did not contest the propriety of the above- described procedure, Zt also conceded that the posting and the questions asked in the interview reflected the contents of the position specification. No issue was taken with respect to the scoring of the competition. Simply put, the union object, ed conclusion reached by the p&nel that the two candida%es in que~tior', were relatively equal. It submitted that the grievor' was observably superior in regards to (i) the mark assigned to interview performance; (ii) the references given by Mr. Robir, son; and (iii) the respective driving records. While it was no'h. ar'gL;ed that any ope of these components were conclusive as grievor's superiority, counsel submitted that cumula~ively served to demonstrate such fact. According}y, it was the position of the union that Mr. Laborite should have been awarded the .posi'bior~ pursuant to article 4.3 of ~he collective agreement. Article 4.3 reads: "In filling a vacancy, the Employer shall 9ire primary consideration to qualifications and abiiit:y ~o perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration." The Board agrees with the interpretation which was placed on this 4 provision in Remark= 149/77 (Swin%on). As there stated' ". ...... a clause worded in this way requires the 9rievor to show the nature of the work to be performed arid his qualifications and ability to do that work. He musL then show either the relative equality between his qualifications and ability to do that work and the qualifications and ability of the incumbent to do the job or show his superior qualifications and ability to do the work. In the first situation, where the grievor has shown relative equality, then length of continuous service becomes a consideration. In the second situtation, where the grievor has shown superior ability, he has satisfied the onus of proving that the employer violated article 4.3 without turning to the factor of length of service." (page 2) this instance as the grievor has tess seniority %i~,~r~, r_he incumbent, he must establish superior qualifications and ability to do the work. The Board, in assessing similar issues in tile past, has been guided by the interpretation of the term "relatively equal" as developed in Re Lady Galt Towels (1969), 20 U.A.C. SS2 (Christie) as modified and explained in Great ~tlantic & Pac';fic Tea Co. of Canada Ltd., (1979), 21 L.A.C. (2d) 444 (Weather'i'I'i)" see Richards, 9/78 (Prichard); and Anderson, 105/86 (Wright'). Z~} the Great Atlantic & Pacific award, the learned arbitrator made the following observation as ~o the standard that should be employed in cases of this nature: "In Re Lady Galt Towels Ltd. and Textile Workers U~io~ 20 L.A.C. 382 (Christie), the board adopted the view Chat test of "relative equality" is really one of deCermi~ing whether or not one employee is more qualified than another by a"substantial and demonstrable margin" We would agree wish this, subject always to the qualification that the determination is to be made having regard to the particular job in question. While we imagine that differences between employees must always be "demonstrable" if they are to be relied on, the notion of what is a "substantial" mar'gi,q of difference is, like the notion of "relative emualib,/'+ itself,one which calls for judgment in relation *:o ~.}~ relevant circumstances. While a smal! difference be'Lwee,'~ individuals might not be substantial.. OF Sign~'f~. .... ~:~,,~ 'V r'espect to some unskilled job, a small difference c[),jid well be substantial and signif'icant in relation to a r~lOr'e tas~q. It is a matter of judgment, and, at leasC under ~-.e cot lective agreement before us, that judgmen~ is to be exercised in the first instance by the company." (page 447~ We are disposed to accept the" substantial and demonstrable test outlined above as we think that it provides for an effec~]i'¢e mechanism through which the employer, and ultimaCely the Boa,'d, ,~ssess the degree of difference between compebir~9 ~ qm l Disputes of this nature s~and to be determined on ~,he b~s~s of specific attributes of the claimant~ and on %he unique needs ~.}f job in question. Given the nature of the judgmenc Nh, at ~ "~ made, we think it understandable why the Board may ha',,e been reluctant to articulate a more precise test. We v/od,d d w~th the suggestion that reliance on the [rent. A,tl[~nt~c a~d Pac standard necessarily promotes job competition through arbitr-a'~'io~'.. Indeed, the possibility exists that the career aspiFatio~s members of the union could be significantly prejudiced by the r'igicl application of narrowly constructed criteria. For' this reason. Board is disinclined to engage in such an exercise. As noted earlier in this award, the griever outscor'ed t. he inculnbent by 24 points. The total possible poinr, s tlnat could have been awarded for the questions asked was 456, In terms c:,f percentages, there was an approximate difference of 5% between che .% candidates. We have not been persuaded that, in the conte;<t of this competition, such a difference demonstrates the 9rievor's superiority. To the contrary, the Board considers i% as ¢e-Flective of a situation of relative equality. Mr. MacKay recorded the following comments of Mr. Robinson with respect to the grievor and the incumbent: "Gary Wadqe 1) Attendance - good. 2) Punctuality - 9cod. 3) Relations in dealing with other staff and the Public- no problems. 4) General Quantity and Quality of Work - Everythit%9 asked of him done well. 5) Any complaints as to work performance - no- satisfactory. Mike Laborite 1) Attendance - good. 2) Punctuality - good. 3) Relations in dealing with other staff and the Public - very calm - no problems. 4) General Quantity and Quality of Work - every%hi~g .asked of him and more- an excellent man. 5) Any complaints as to work performance - Mike is alwa?'s looking to do more and help out on anything," While there are slight differences in emphasis in terms of points 4 and 5, we do not believe that such alone constitute a substantial and demonstrable difference vis a vis the candidates' qualifications and abilities to perform the duties required of a Purchasing Officer. There was evidence led to suggesC McDonald may have initially felt that ~he grievor had "won~' the competition and that he may have personally preferred Mr. Laborite. We do not consider ~his to be material as the opinion was likely formed prior to any consideration of article 4.3 a~]d appeared 'to be based on the Few scores resulting from the interv'iew. Similarly, any preference that Mr. Robinson might iaave had be given much weight, as evidence was not preset;ted ~o that he considered the effect of article 4.3 of the collective agreement. The most observable difference between the candidate,,s ,¢¢a.~ with respect to their driving records. The 9rievor testified t?',e.t he ?lad not been involved in a traffic violatior} durii~9 his years of driving. A search of Mr. Wedge's driving record disclosed that he had received five (5) speeding ~ickets over a r~ir~e (9) year' period, with' three (3) of ~hese being in the last three ~3) years. Mr'. MacKay stated that the incumbent's driving record wa.s as "acceptable" as he was not under suspension and had not "major v~ola~Jons" wJ~h~n the paso ~/o bo ~hree years. Thru. is no~ prepared ~o fJnd ~ha~ ~h~s difference in driving r'ecord constituted a ma~er~at dJs~inc~ion between the applicants. ~he grJevor's evidence rha~ a PurchasJn90ffJcer migh~ o~';y use their vehicle on ~hree occasions per year and then o~:ly ~o up supplies down the street". Hr. MacKay confirmed the% dr'iv~r-~g did not form a l~rge part of the job. Given this fact, ~¢e are unable to find t. hat the driving record of the 9rievor' r'endeFed him more qualified for the job, in it's entirety, by a subs'r, ar~t. ial demon~trabl e margin. 8 The Board has also considered the application forms of the grievor and the incumbent. Both candidates had wori, ed as a Cle;-k 2 Supply since the commencement of their employment :,/it!*, the Ministry, The grievor testified that he had acted as a Purchasing Officer for a period of five (5) weeks prior to the date of the competition. He further stated that he had engaged in some limited purchasing while on "wicket" duty over a period of three (3) years. Reference was also made to those aspects of his prior position, s ~vith Metropolitan Life Insurance Co.; Bartlett's Auto Electric, Epletts Bairy which arguably equipped him for the Do,sition in. question. The grievor's application noted that he had taken courses in the areas of Auto Parts Inventory Control and Principles of Inventory. As stated above, the Board did not have the be~efi't of hea~'i~g directly from Mr. Wadge other than by way of his opening stateme:~t. As Sn the case of the grievor, he claimed in his application ~:) have performed many of the duties of a Purchasing'Officer. The application similarly referred to past positions and courses which arguably suited him for the position. With respect to his educational background, the application disclosed that ti~e incumbent had received certificates in Principles of Buying a~d in Principles of Inventory and Operations Management. 9 The Board does not consider it necessary to review applications, and the material contained therein, ~n any 9rearer' detail. In our judgment, the information again is con$is%er~% relative equality. Hr. HacKay, on behalf of the panel, conceded that there we¢'e observab]e differences between the grievor and the incumbent. He did not assess such differences as being significant. When asked in cross-examination as to his understanding of the concept of re]at'ire equality, he replied by stating, "if a¢ter maki¢h9 reasonable checks and there isn't a fairly discernible diFfer-eries between the candidates, then length of service has to be %ake~% serious consideration." In this instance, he and the par~e! could not isolate such a difference and therefore fouled the two candidates to be relatively equal. Given this conctusi©r}, we not think the pa~lel can be faulted for not identi~¥i~g the the point differential which would have led the grievor to success in the competition. Having considered all of the evidence and argument pr'ese~u, ed, the Board finds itself in agreement with the judgment of the panel. Speci-?ical ly, we think . the grievor and the incuf~ber~t relatively equal for purposes of articte 4.3 such that the greater se~]iority should p~-evail. In our judgment the observable differences, whether considered in isolation o:' cumulatively fail to show that the grievor was a superior car~didate 10 as defined in the jurisprudence of the Board. For all o¢ these reasons, the grievance is denied· Dated at Windsor, Ontario this 8th day of September, 1929. 11