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HomeMy WebLinkAbout1989-0458.Koh.90-07-10 ONTARIO EMPLOYES DE LA COURONNE ~' ~ CROWN EMPLOYEES DE L'ONTARIO ~ GRIEVANCE C,OMMISSION DE ~ : SETTLEMENT REGLEMENT · ~.:.-::':'.,~ ~-~?,_~-:.,,.~:-.~, ' BOARD DESGRIEFS ~ tSO DUN~A3 STREET WEST, ~U}T~ ~1~, TORONTO, O~TA~. M~G ~Z8 T~LEP~O~E?T~L~P~NE: {416) ~2~ t~88 458/89 IN TEE MATTER OF AN ARBITRATION Under T~E CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before T~E GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Koh) Grievor - and - The Crown in Right of Ontario (Ministry of ~ealth) Employer - and - BEFORE: S. Stewart Vice-Chairperson I. Thomson Member M. O'Toole Member FOR T~E N. Luczay GRIEVOR: Grievance Officer. Ontario Public Service Employees Union FOR THE J. Crawford EMPLOYER: Counsel Legal Service Branch Ministry of Health ~EARING: October 27, 1989 January 9, 16, 23, ~990 March 20, 29, 1990 DECISION This grievance is dated March 20, 1989 and is filed on behalf of Mr. C. Koh. The grievance alleges that: "Competition #HL 83-O1/86 re-run violated the mediation settlement of October 1987 and was an improper competition and discriminatory". The settlement claimed by the grievor is "appointment to the position applied for with full retroactive pay and interest from the date the successful applicant was appointed." The position referred to in the grievance is the' position of senior technologis.t - environmental bac*eriology and serology, classified at the time as a Technician 3 in the London Regional Public Health Laboratory, "the lab". Ms. S. Grunwald, the successful applicant for the position, was given notice of this proceeding and her right to participate. She attended as a witness subpoenaed by the Union but otherwise did not participate in this proceeding. At the outset of the first day of hearing Ms. Crawford submitted that the Board did not have jurisdiction to deal with the question of whether, there had been a violation of a settlement' as set out in the grievance. 'In response, Luczay stated that the Union was not proceeding with the allegation that the settlement had been violated. He stated, however, %hat the Union wished to adduce evidence with respect to the earlier competition and the settlement in suppor't of the other allegation set out in the grievance, that ~s, that the second competiton was "improper and discriminatory". Ms. Crawford objected to the introduction of this evidence, arguing, that to allow the introduction of this evidence would be to allow the Union to do indirectly what it is not permitted to do directly. Mr. Luczay submitted that it was necessary for the Board to hear this evidence in order to understand the baCkground of the grievor's complaint and to substantiate the allegation that the second competition was "improper and discriminatory". After a consideration of the submissions of the representatives of the parties on this issue the Boar~ ruled that it would hear the evidence that the Union wished to adduce'on this matter and give to it whatever weight and value it might ultimately merit. As previously indicated, the position which is the subject of this grievance is the position of senior technologist in the lab. The position specifications setting out the summary of duties and responsibilities for this position indicate that 75% of the duties entail carrying out testing, 20% of the duties involve assisting the head technologist by carrying out duties such as acting in that person's absence, training and assisting technici-ans and obtaining or receiving information from 3 doctors and hospitals. The remaining .5% of the duties of this position include technical instruction and assisting in the maintenance of laboratory equipment. The position specifications indicate that the skills and knowledge required to perform the work are: "Community College diploma in medical laboratory technology or equivalent, university degree, etc., sufficient practical experience." The first competition for this position was held in March 1986. .At that time both Ms. Grunwald and Mr. Koh were employed at the lab as laboratory technologists. Ms. Grunwald has less seniority than Mr. Koh, having commenced employment with the Ministry of Health in .June 1976 while Mr. Koh's seniority dates from August 1974. Ms. Grunwald was the Successful applicant. Mr. Koh and another unsuccessful applicant, Mr. Dost, filed grievances with respect to the competition, it was the position of the Union that there were a number of improprieties with respect to that competition however direct evidence with respect to those improprities was not adduced. The parties ultimately reached a settlement with respect to the grievances on October 29, 1987 with the addenda being added shortly thereafter. The settlement provides as follows: Without prejudice and without precedent the parties hereto agree to the following terms as full and final settlement of the above captioned grievances: 1. Competition #HL 83-O1/86 will be re-run as soon as practicably possible. 2. Competition to be restricted to the two grievors and the successful candidate from the original com- petition. , 3. The composition of the selection board panel shall include a~ least two individuals not currently employe~= of the London Public Health Laboratory. 4. At least one of the two mentioned in item 3 will be a technical person, knowledgeable of the pertinent laboratory procedures, practices and requirements. 5. Any written examination and the correct responses thereto will be prepared by a management representa- tive of the Laboratory Services Branch, but not an employee of the London Public Health Lab in London. 6. Any such written examination will be marked by the selection panel. 7. Interview questions will be prepared and marked by the selection panel. 8. Points for relevant education and experience, apart from the written examination itself, will be assigned and will constitute not less than 5% nor more than 10% of the overall total. 9. Proof of educational achievements claimed by can- didates will be required of all candidates. 10. A manual will be provided, on loan, to be shared by the three candidates outlining the Lab's policies and procedures. 11. If operationally feasible, Messrs. Dost and Koh will be temporarily assigned to Serology/Environment biology for 2 days each. 12. The Manager, Regional Services will review the selection criteria developed, interview questions and the correct answers identified prior to any decision being made. 13. The Manager, Regional Services will review the results of the selection board's scoring prior to any decision being made. 14. The Lnion and the grievors agree to withdraw the aboveT-aptioned grievances. Addenda: 15. In marking responses to interview and examination questions, each member of the selection panel will mark each question individually and the marks assigned to each question will be averaged. 16. In assigning points for relevant education and experience, the selection panel will give no credit for experience gained since the original competition. The written examination section of the new competition was not held until November 2, 1988. The interviews of the candidates were held on November 14, 1988. In February 1989 it was 'announc=d that Ms. Grunwald was again the successful applicant. It was the Union's position that Mr. Koh was at least equal, if not superior to Ms. Grunwald in terms of his qualifications 'for the position and, in accordance with the provisions of Article 4.3 of the Collective Agreement, he should have been awarded the position. Mr. Luczay argued that there .were, sigificant flaws in the competition that supported a iconclusion that the skills and abilities of the applicants had not been properly and objectively assessed. It was the po~{~on of the Union that the time delay in scheduling the ~e-run unduly prejudiced Mr. Koh while allowing Ms. Grunwald to gain further experience in the position. There was some suggestion that the delay in the competition was intentional. Ms. A. Prytula, Manager, 6 Regional Services, who was involved on behalf Qf the Ministry in reaching the settlement and who, according to the terms of the settlement, was to be involved in the arrangements for the re-run of the competition, testified that the delay in scheduling the re-run was the result of a number of factors. She arranged to obtain questions and answers for the written section of the examination from Mr. Paul, 'Director of the Windsor Regional Public Health Laboratory and Mr. Brodsky, Chief of Environmental Bacteriology in the central laboratory in Toronto. Ms. Prytula stated that this part of the process was final'ized in January 1988. The examination questions had tO be reviewed and finalized, as did the interview questions and the selection criteria. It was also necessary to arrange for four members of the selection panel. Attempts were made to have the competition held in the spring and summer however the schedules of the members of the selection panel and the applicants' resulted in a mutually convenient date 'being unavailable until November 1988. The local Per'sons selected, were Dr. R. S. Majarajah, Director of the London laboratory and Mr. J. Aldom, Head of Microbiology. It was originally anticipated that someone other than Mr. Aldom would be the Other local representative on the committee however as Mr. Aldom was a new employee of the lab, having come from another province and commencing work in the lab only in September 1988 it was thought that he would be an 7 appropriate person to serve on the committee. The other persons appointed to the selection ~anel were Mr. N. Paul who, as previously noted, is Director of the Windsor Regional Public Hea~th Laboratory and Mr. H. C. Mallory, Director of the Palmerston Regional Public Health Laboratory, Mr. M. Momentoff, Regional Personnel Administrator, served as an advisor to the selection committee. After a review of the evidenc~e on this point the Board is satisfied that there was no effort on behalf of the Employer to at%erupt to delay the scheduling of the re-run of the competition. Both Ms. Prytula and Mr. Momentoff were credible witnesses and we are satisfied that the timing of the re-run of the competition was~as a result of the factors dictated by the terms of the settlement as well as the different schedules of the various players. With respect to the Union's position that the delay gave Ms. Grunwald an unfair advantage in the competition, .while it is inevitable that an incumbent will gain or reinforce relevant knowledge while working in a position, we note that the terms of settlement did not provide that Ms. Grunwald woul'd be removed from the position. We are not convinced that the delay in the re-run of. the competition should cause us to conclude that its results should be questioned. Aside from specific attacks on particula~ aspects of 8 the competition process, the position that was advanced on behalf of Mr. Koh was that he was discriminated against because~of his Union activity and his involvement in filing grievances and making other complaints involving members of management at 'the London public Health Laboratory. This position related primarily to the involvement of Dr. Maharajah ~'n the competition. Dr. Majarajah was director of the laboratory for approximately twenty years, until his retirement on December 31, 1989. Two decisions of this Board involving Mr. Koh and his Employer were referred %0' by Mr. Luczay. In a decision dated May 3, 1989 (Forbes- Roberts 2026/86) it was conCluded that Mr. Chainauskus, the Head Technician in the lab, had imposed unjust discipline on Mr. Koh in refusing to allow him to perform certain overtime Work. In a decision dated May 11, 1989 (Gorsky 1335/88) the Board dealt with an allegation that Mr. Koh was not chosen to attend a course because of an unfair labour practice brought against the EmploYer and because of Mr. Koh alleging that the Employer followed improper laboratory procedures. It was the conclusion of that Board that the evidence d~d not establish that the Employer's decision was a disguised form of discipline. The Board f~rther concluded that the previous decision of this Board which concluded that unjust discpline had been imposed was not of assistance in resolving the issue before it as the person.who was involved in imposing the discipline in that 9 instance was not involved in the decision that Mr. Koh would not attend the course. We note, similarly, that Mr. Chainauskus was not involved in the re-run of the competition that is the subject of this grievance and we reach the same conclusion with respect to the assistance of the previous decision in this instance. In addition to the matters referred to above, there · were vague ·references in the evidence to numerous other conflicts between the grievor and his Employer. While we recognize that matters such as discrimination are difficult to establish, there must be some substantive evidence to support a conclusion that-such existed. Such eviden6e is not present in this case. Moreover, the settlement that was reached between the parties that established the parameters of the re-run ensured that the structure of the competition was such that the whole process would be reviewed by a designated person outside the lab and specified the composition of members of the selection panel with respect %o the number of members who would come from outside of the lab. Even if we were to accept Mr. Koh's allegation that Dr. Maharajah bore ill will toward him we are satisfied that the procedural safeguards that were. established for the re-run ensured that it was a fair competition. The entire process was reviewed by Ms. Prytula after the selection committee's deliberations, 10 prior to the announcement of the result of the competition. We agree with the assessment of Mr. Aldom, who impressed us as an extremely credible and neutral witness, that the competition entailed a thorough and fair assessment of the skills and abilities of the applicants. The other general allegation that was made was that Ms. Grunwald was favoured by members of management at the lab. The panel heard evidence from Ms. C. Johnston who has been employed in the lab as a technologist in clinical microbiology since July 17, 1981. Her evidence was to the effec, t that Ms. Grunwald did not exert a high 'standard of diligence in carryin~ out her duties, that she was not assigned to less desirable duties as other employees were and that she was treated with favoritism with respect to time off. In cross-examination Ms. Johnston acknowledged that she has lived with Mr. Koh for the last four years. She testified that she feels that Mr. Koh was treated unfairly. She also stated that she dislikes Ms. Grunwald. In view of her bias in this matter we are not satisfied that Ms. Johnston has provided reliable evidence that can support, the conclusion that Ms. Grunwald was given an unfair advantage over Mr. K0h in this competiti6n. The other aspect of this allegation related to the fact that Ms. Grunwald was assigned to work in the environmental bacteriology and serology area prior to the first competition. Ms. Grunwald stated that she asked to be assigned to this work because she recognized that a more senior position in this area would become available and she wished to obtain experience so that she could apply for the position. This event took place prior to the settlement of the grievances arising out of ~he first competition. Had Mr. Koh requested and been dehied this opportunity or had a member of management initiated Ms. Grunwald's assignment to this area we might have viewed this evidence differently. However, on the evidence before us, we are not prepared to draw the inference that Ms. Grunwald was "set up" to win the competi.tion as the Union urges us to. It was also suggested that Ms. Grunwald was aware of the questions that would be asked on the examination. The fact that one of her answers to a lengthy question followed the same order as the suggested answer was referred to in support of this conclusion however Ms. Grunwald was not asked for an explanation with respect to this matter. We cannot conclude that the Union's allegation in this regard has been established. Mr. Koh testified that the written examination was based largely on the information contained in the laboratory manual referred to in the minu~tes of settlement. There was' some suggestion Chat chis was unfair however it is clear that at the time the minutes of settlement were 12 entered into it was contemplated tha't the candidates would be tested on the information contained in the manual. Mr. Koh stated that he had access to the manual but referred to the fact that Ms. Grunwald worked with the manual every day as a matter which gave her an advantage. With respect to the matter of the advantage resulting from working with the manual, our view is the same as that expressed earlier, that is, that experience gained in .the position which resulted in an increase in Ms. Grunwald's knowledge and thus could not be eliminated for the purposes of the competition does not cause us to conclude that the selection process was flawed. The candidates were scored on a number of criteria, including substantitive knowledge of the area, references, interview performance, attendance and educational background. The final scores for the candidates consisted of 341.12 or 79.14% for Ms. Grunwald, 190.62 or 44.22% for Mr. Koh and 166.17. or 38.55% for Mr. Dost. The scores were based in part on a written examination dealing with theoretical and technical knowledge of environmental bacteriology and serology as well as 'knowledge and use of laboratory equipment and laboratory safety practices. The results of the written examination component of the competition were challenged by Mr. Koh on the basis that some of his answer's and those of Ms. Grunwald were marked I3 improperly and he should have been given a higher total score while Ms. Grunwald should have been awarded a lower score. We have reviewed the specific answers referred to by Mr. Koh in support of his opinion in comparison to the written answers provided to the persons responsible for marking the written examination. We also note that there were two me'tings at which the four separate members of the selection panel discussed the marking system and whether particular answers were correct or partially correct and the manner in which marks should be allocated. As previously noted, two of the members of the selection panel had no association with the London Public Health laboratory. As well, we have considered the evidence of Mr. Aldom Who, as previously indicated, we found to be an extremely credible and neutral witness. 'Mr. Aldom testified that the examinations were marked carefully and consistently and that the candidates were assessed in relation to the .other criteria with similar care and consistency. The results were scrutinized by Ms. Prytula who also impres~sed us as credible and neutral. We are not convinced that the manner in which the examinations were marked reflects a bias in favour of Ms. Grunwald and/or a bias against Mr. Koh. The 'validity of the competition was also questioned on the basis that Mr. Koh was not awarded any points for 14 references. Mr, Momentoff explained that at the time of %he interview all'candidates were asked to supply recent work related references. Mr. Koh stated at the interview that he did not feel that he could obtain a fair and accurate reference from anyone at the lab, He did suggest that Mr. Aldom could provide a reference but~ as Mr. Aldom had been at the lab only for several weeks it was felt that he could not provide' the reference that was required. Mr. Koh {herefore provided the names of Mr, Hawke and Mr. Dorczyk who had s~p~rvised his work between 1976 and 1979 and authorized the Employer to contact them to obtain references. A reference .was re'quested of both of these gentlemen however Mr. Dorczyk did not reply and Mr. Hawke replied stating that he felt unable to provide a reference for Mr. Koh due to the .time that had elapsed since he had supervised Mr. Koh'$ work. There was a reference from 1977 that had been prepared by Mr. Hawke that was contained in Mr. Koh's personnel file. However, this letter was not considered as ~ reference. Mr. Luczay argue~ that the selection commito~= should have requested references from Mr. Koh's supervisors and referred to the decision in Quinn 9/78 (Prichard) where the 'failure to do so was found to be a defect in the selection procedure. In our view, the failure of the Employer to do so in this instance cannot be considered to be a defect. Mr. Koh specifically stated ~hat he did not wish to use anyone at the lab as a reference, He was advised by Mr, Momen~off that %he consequence of not providing the kind of reference requested was that he would not be allocated any points for this area of the competition, If the Employer had sought a reference from persons that Mr, Koh did not authorize it to seek a reference from Mr, Koh could have reasonably objected to such an action, While the reference from Mr, Hawke that was contained in Mr, Koh's personnel file could have been examined it was not the recent reference that was requested, We cannot accept Mr, Luczay's submission that this is a significant flaw in the competition, .. After a careful review of all of the evidence, and the submissions of the representatives of the parties we are not persuaded that the competition failed to properly assess the abilities and qualificat-ions of the candidates or that Mr, Koh's abilities and qualifications are relatively equal to or greater than those of Ms, Grunwald, While Mr, Koh has greater formal education than Ms, Grunwald his superiority in this area was recognized in the points that were allocated in the. competition, Mr, Koh has slightly greater work experience than Ms, Grunwald but both are long term employees, Ms. Grunwald has worked at the London lab longer than Mr, Koh and had recent direct experience in th~ ~articula.r area for a short period just prior to the. first competition, Ms, Grunwald demonstrated 16 clear superiority over Mr. Koh with respect to her substantive knowle~e of the area which is a significant matter. Considering the references for both candidates, including the 1977 reference from Mr. Hawke, along with the performance evaluations on fil~, we are satisfied that Ms. Grunwald's overall work performance has been superior %o Mr. Koh's. Accordingly, it is hour conclusion that Ms. Grunwald was the superior candidate in relation to Mr. Koh and that a violation of Article 4.3 of the Collect. ive Agreement has not been established. For ~hese reasons it is our conclusion that the grievance must be dismissed, Dated at Toronto this 10 day of July 1990 " I DISSENT" I. Thomson- Member M. O'Toole - Member