HomeMy WebLinkAbout1989-0629.Mountain, Barrell & MacLellan.90-02-02 ONTARIO EMPLO Y~-$ DE LA COURONNE
CROWN EMP£ 0 YE£S DE ~. 'ON TA RJ 0
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET wEST~ TORONTO, oNTARiO. M5G 1Z8- SU.tTE 2100 TELEPHONE/T~:L~'PHONE
150, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G IZ8 - BUREAU 2t00 (416) 508-0688
629/89, 630/89, 633/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
TH~ GRIEYANCE SETTLEMENT BOARD
Between:
~OPSEU (Mountain, Barrell, MacLellan)
Grievor
- and -
The Crown in Right of Ontario (~inistry of Health)
Employer
Before:
B.B. Fisher Vice-Chairperson
E. Seymour Member
D. Montrose Member
For the Grievor: M. Kuntz
Grievance Officer
Ontario Public Service
Employees Union
For the Employer: M. Failes
Counsel
Winkler, Filion and Wakely
Barristers & solicitors
Hearing: November 24, 1989
DECISION
This is a competition case involving the position of a M.R.I. Processing
Clerk in the Oshawa OHIP office.
The incumbent, Ms. Myers was given proper notice of these proceedings ' '.'
and chose not to attend the hearing.
There are three grievances consolidated in this case involving Ms.
MacLeltan, Ms. Barrell and Ms. Mountain. Insofar as there was only one vacancy
to be filled in the competition, the Union is only asking for a rerun.
All the grievors have greater seniority than the incumbent.
The numerical results of the selection process gave the various results:
Incumbent 71.5 points
MacLellan 52.5 points
Barrell 52.0 points
Mountain 52.0 points
A copy of the posting and the applicable job specification are attached as
Appendices to this decision.
Rather than review the entire competition process, we wiI1 focus only on
those aspects of the process which the Union claims are improper.
1. Failure to Provide the Grievors~With a Copy of the Job Specification
The usual practice of this employer seemed to be to provide each
candidate who was offered an interview a copy of the job specification a few days
before the interview. For some reason not fully explained to the Board, these
grievors were only given copies of the job description minutes before they went
into the interview.
-2-
Neither Ms. Mountain nor Ms. MacLellan seemed concerned about this
aspect as Ms. Mountain felt she got all the information she needed from the job
posting and Ms. MacLellan had a c?py of the job specification from a previous
competition.
Ms. Barrell claimed a disadvantage in not seeing a job specification
ahead of time, however, she made no attempt in the day before the interview to
obtain a copy of the job specification from management. Her plea that she did not
have enough time to ask for one is not convincing as the evidence showed that her
desk was located no more than 20 feet away from the manager's desk. It is
difficult to believe that she could not have walked over to her manager's desk and
asked for one if she really thought it was important.
In any event, all three grievors saw the posting and furthermore, ail
three griev0rs spoke extensively to Ms. Kovacs prior to the interviews. Ms.
Kovacs was a M.R.I. Processing Clerk at the time. She spoke to the grievors
extensively about her job and used the job specification as a guideline for her
explanation.
This matter is not a defect in the process.
2. Composition of the Selection Committee
There were three members of the selection committee, only two of whom
had votes. The voting members were Mr. Leonard Menezes, Manager of
Administrative Services (the immediate manager for the vacant position) and Ms.
Bobbie Heggrey, Supervisor of Support Services. The non-voting member was
Monica Soares, a bargaining unit group leader.
The Union's complaint is that there was no representative from the
Human Resources Department as was the normal practice of the employer.
-3-
Mr. Menezes testified that he has run a great number of competitions
and sometimes he invites a Human Resource person to sit on the Board and
sometimes he does not, depending primarily on the complexity of the position.
Insofar as this position was a relat~ively st~raightforward one, he did not feel it was
necessary to include a Human Resource person.
There is no requirement in the Collective Agreement for management to
have a three person selection board or that one of the members on the panel be
from the Human Resources Department.
The Union is not stating that the two voting members of the board were
biased or inappropriate, only that a Human Resource person should have been
included.
This Board finds that there is no requirement that a selection board have
a Human Resource person on it. In fact a cynic might say, but of course not the
authors of this decision, that the absence of a Human Resource person in the
competition process is an improvement as they are usually the ones who have the
least knowledge of the requirements of the job.
This item therefore is not a defect.
3. Presence of the Incumbent Outside the Interview Room
The Union complained that the incumbent was sitting outside the
interview room at her desk during the interviews. The incumbent would greet the
candidates when they came for their'interviews and provide them with a copy of
the job specification. The location where the incumbent was sitting was her regular
work station. The Union was not accusing the incumbent of having any advance
notice of any of the interview questions, only that her presence outside the
interview room was improper.
-4-
As the incumbent was a clerk-typist whose regular location was outside
the applicable room, it seems reasonable that she would be asked to assume the
incidental receptionist duties for the conducting of the interviews.
The Board does not view this matter as a defect.
4. Overly Technical Questions
The Union's complaint is that a number of the questions were too
technical in nature and required a higher level of computer sophistication that was
necessary to perform the job in question. Moreover, the Union says that there was
too high a proportion of technical to non-technical questions in relation to the
various components of the job.
The evidence presented, both in terms of the job specification and the
testimony of Ms. Kovacs and Mr. Menezes, seems to show that about 20% - 25%
of the job is related to the operation of a personal computer. However, the tasks
performed on the computer are quite basic and undoubtedly could be performed by
almost anyone who had taken the most basic computer training course.
Approximately 30% of the interview score was based on computer
knowledge. This percentage is close enough to the requirements of the job so as to
not constitute a defect in the selection process. Furthermore, the questions
themselves were quite basic and could have been easily mastered by anyone who had
taken a basic personal computer course or even read an introductory book on the
operation of personal computers.
The Board finds that this matter does not constitute a defect.
5. Attendance
The employer determined that regular attendance was an important
component of the job as there were only two people performing this task and
-5-
therefore there was very little backup in the event that one of them was absent.
Furthermore, the consequences of a delay in the workload would be fairly, serious as
a doctor's payments may be delayed.
The employer set up a rating system for attendance based on the previous
two years, excluding maternity leave.
Number of Attendances Points
0 15
1 day 10
2 - 4 days 8
5 - 6 days 6
7 - 10 days 4
11 - 12 days 2
13 - 20 days 1
over 20 days 0
The incumbent scored 6, the grievors all scored 0. The grievors had
various reasons for their lengthy absences; difficult pregnancies, occupational
injuries, and undiagnosed asthma.
The employer did not inquire as the reason for the absences as they were
not really concerned ,with the reasons only the actual numerical count.
There is no question that the employer has a legitimate concern in
attendance when determining promotions. This issue is conceded by the Union.
However, the Union's concern is that the employer did not consider the reasons
behind the absenteeism and therefore could not determine if the absenteeism would
likely continue in the future.
-6-
This mechanical application of a formula concerns the Board insofar as it
seems to lead to the conclusion that future attendance can be predicted simply by
looking at prior attendance. This iD. patently dangerous as you could have a person
whose attendance record in the last 2 years was horrible because they had a serious
injury but by the time of the interview they had completely recovered. In a case
like this the employer should inquire into the reasons for the previous attendance
problems so he can properly determine if it will likely affect future performance.
The failure to make this necessary inquiry constitutes a defect in the
selection process.
However, even if we completely exclude the question of attendance from
the scoring, the results would be as follows:
Incumbent 65.5
MacLeltan 52.5
BarrelI 52.0
Mountain 52.0
This still produces a 13 point difference between the incumbent and the
highest scoring grievor. This represents a difference of almost 20%.
This raises the question as to whether or not a rerun should be ordered
where the Union shows that the selection process contained defects but
notwithstanding those defects the grievors have not shown that they are relatively
equal to the incumbent in terms of their qualifications and ability to perform the
required duties of the job.
The case of Bent 1733/86 (Fisher) speaks to that problem as follows:
From this it seems clear that the onus is on the Union to
establish not only that the defects existed but that had
the defects not occurred, that the grievor would have got
the position. Although it is not articulated in the Dehsl,e
-7-
decision, it seems appropriate that the onus should simply
be on the balance of probab, iIities. In other words, if_the
Union is able to show that there were proced,,ural ddfects
in the selection process, then they must sho~ on the
balance of probabilities that had those defects not
occurred, the griever would be found to be relatively '
equal.
A point spread of 20% even where the defects are eliminated does not
constitute relative equality under Article 4.3 of the Collective Agreement.
The grievance is therefore dismissed.
Dated at Toronto, this 28th day of Fetamary 1990.
Ba~/:. b~sher, Yme Chairperson
~~r'~ ~.'~~ (Addendum attached)
Seymour, Member
L~. Montrose, M~moer
ADDENDUM - UNION NOMINEE
RE: GSB Files 6~9/89 630/89 633\89 OPSEU '''
Mountain, Barrell, MacLellan and the Crown
in the Right of Ontario (Ministry of Health)
While I am in agreement with the decision, I do have some
. concerns about the issue raised in Point 3, "Presence of the
Incumbent Outside %he Interview Room."
There is no question she was at her normal work station
performing her regular duties. However, it does seem somewhat
unfair to all concerned to have one applicant for a particular
position present the job specifications to others applying for
the same posting. Such a procedure can and did lead to
misunderstandings which could easily have been' avoided simply by
having someone not directly involved circulate the specifications
to all applicants.
Management should consider changing its procedures if and when a
similar situation occurs in the future.
All of which is respectfully submitted.
Edward E. Seymour
Polltlon Specification & Cia..AUocstl~3n-¢SC ~150 -
us* only
MRI. PROCESSING ~[RK ~ I o~-e~e-62 I 01
. , , --o ,.o
,o,.~,: NEW POSIT ION
I
HEALTH HEALTH iNSURANCE
iOGR~ SERVICES - OSHAWA DISTRICT ~19 KING ST. W., OSHAWA ~6501
~ SUPERVISOR, DAlA PROCESSING 05-8~8-60
Gr~ ~li~. T~ skill IKI~ ~il~ly ~ t~ I~l~: W~ P~, T~
Of ~0~ (why d~ this ~
)ate and control Flow of diskettes Jfl the District OFFice and to perform a limited
n~er oK baaJc func:5ons normally associated w~[h compu[er aes~s~ed ~ micro computer
.reUons.
]OR RESPONSIB IL I TIES ·,
~1. )o perform checking and conL~ol du[ies wj[h ~eepect to C[a/me processed
on
.o¢ 5{".or 8" diskettes within the CPU by checking incoming diskettes For ID
J N~er oF Cia~a/~ecordm, Doctor ne~ and creation =~te) logging in of d~skettes
on special p~ovide~-ca~dm fo~ each p~ovider of me,vice) forwarding to CPU
Operator for procemmingl checking teat diskettes for documentation, advising
lechnicai 5e~vicem ~ l~iete ~t. and forwarding to p~oduction'all' accepted
dJskettea; l~gging in ~ diskettes and ensuring that each provider receives one;
ensuring that diskettes with inc~plete batch and header information are
cancelled, providers advised, log books updated and new diskettes forwarded;
reporting on icg ~Z discrepancies or diskettes with Batch Edits.
2. )o monitor the flow or diskettes by k~eping records or all diskettes sent
received fr~ providerm; formatting new diskettes and reformatting data d~sket[e '
submitted dlakettem Fo~ the month; con~ac~ng ~ervlce provtde~s by telephone
oorrespondence when ~eque~tlng outstanding diskettes, or when discrepancies are
noted tn their 8u~isaion8; keeping statls~icm of al~ dlskette~ in circulation,
in store~e~ cetuzned~ ~efor~tted, etc.
~. To assist the 5uoe~viso~ Oats P=ocessinq by on special occasions, performing
limited numar of functions normally assigned to Console Operators; CON':
Th~a poa1[lon ~equi=iaa k~w[edge o~ OH[P poZJcJes end p~ocedu~ea ~egaCding $ecu~i[7 and
'alton of specific p~eces of equlpmenL. Detailed knowledge or the Control and sLo~age
ho[~r~o~sa1~ pnd Les~ing. Bae~c knowledge of Pe~[ec opera[ion Lo provide
CONT
S, EGERTON, ASST. DXR~CTOR C~NTRAL OP[RATION~
.~ 20 OA~
' MRI PROCES$INC CLERK PAGE
i'
· ], MAJOR R~$PONS[BILITIE$ cont'd
maintaining, systems and document security, ensuring confidentiality of
material; operating a keyboard to process input documents.
~ ~, As assigned.
SKILLS AND KNOWLEDG~ cont'd
backup/assist CPU Operators. Basic knowledge oF keyboard functions of
micro computer to perform routine input operations .
The incumbent requires effective oral communication skills to exchange
routine factual information with service providers or their staff
concerning the processinq or diskettes. Data entry skills and typing skilb~
at basic level (not to CSC standards). Arithmetic skills are required to
maintain records for control and productivity reports. Ability and skill~
to operate entry equipment.
~he incumbent exercises judgement in organizing daily work assignments to
ensure a continuous flow through of diskettes in the ~.P.U. area. The
incumbent is expected to refer any problems and back-logs not covered by
procedures or instructions to supervisor.
~he incumbent is accountable for organizing his/her own work in an accura
and timely manner. ~he incumbent is responsible for processin9 quickly
test diskettes to avoid unnecessary delay and the need for possible
interim payments to service providers, Errors ere easy to detect, but
would require retracing through computer system to correct.
Appendix B
MINISTRY OF HEALTH
ONTARIO HEALTH INSURANCE PLAN
PROGRAM SERVICES BRANCH
M.R.I. PROCESSING CLERK
(OFFICE ADMIN. 4)
$11.04 - $12.18.per hour
(under review)
(SCHEDULE 3.7)
(Restricted)
The Ministry of Health, Program Services Branch, requires an
Processing Clerk (Office Admin. 4) for the Oshawa District Office.
Reporting to the Supervisor, Data Processing, the success£ul applicant
will prepare and control the flow of diskettes in the District Office
and perform a limited number of basic functions normally associated
with computer-assisted or micro computer operations.
DUTIES TO INCLUDE:
Checking and control duties with respect to claims processed on
3 1/2", 5 1/4" or 8" diskettes within the C.~.U.; checking incoming
diskettes for required information as well as checking test diskettes;
logging in of diskettes received from ~roviders$ ensuring corrective
action is taken with regard to diskettes with incomplete information;
monitoring the flow of diskettes; formatting new diskettes;
reformatting data d~skettes; keeping statistics of all diskettes in
circulation, storage, returned and reformatted; maintaining contact
with providers by phone or correspondence, performing limited
functions normally assigned to a C.P.U. Operator; maintaining systems
and document security .and operating a keyboard to process input
documents.
QUALIFICATIONS:
Knowledge of OHIP policies and procedures regarding Security and
operation of specific pieces of equipment. Detailed knowledge of the
control and storage of diskettes for processing and testing. Basic
knowledge of the Pertec operation and keyboard functions; effective
oral communication skills; ability to exercise judgement especially in
organizing dally work to ensure a continuous flow of diskettes in the
C.P.U. areas basic data entry and typing skills in addition to good
arithmetic skills required to maintain records for control and
productivity reports.
0ualified applicants are reguested to submit a completed application
form/resume to:
Personnel Clerk,
OHIO, Oshawa District Office,
Executive Tower - Oshawa Centre,
419 King St. ~est,
0shawa, Ontario. LiJ 7J2
REFER TO FILE 9HL-46-07-89.
POSTING DATE: April 20, 1989
CLOSING DATE: May 03, 1~89.
AREA OF SEARCH: 0HIP, 0shawa District Office
- within commuting distance.
EOUAL~TY OF OPPORTUNITY FOR EMPLOYMENT
"THE MINISTRY OF HEALTH HAS A SMOKEFREE WORKPLACE POLICY"
ONTARIO EMPLO¥~:S DE LA COURONNE
CROWN EMPLOYEES DE L 'ONTAR/O
GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G 1Z8- SUITE2100 TELEPHONE/T'~L~PHONE
180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (416) 598-0688
637/89
IN THE MATTER OF AN ARBITEATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SE~TLEMENT BOARD
Between:
OPSEU (])ion)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health)
Employer
Before: A. Barrett Vice-Chairperson
D. Wintermute Member
A. Stapleton Member
For the Grievor: J. Paul
Grievance Officer
Ontario Public Service
Employees Union
For the Employer: D. Franc:.s Counsel
Winkler, Filion and Wakely
Barristers & Solicitors
Rearing: November 27, 1989
At issue in this grievance is how to characterize the
work done by the grievor on Saturday, April 29, 1989, for
premium pay purposes.
On week-ends at the Penetanguishene Mental Health
Centre, the kitchen is staffed by three cooks working three
separate over-lapping shifts. Shift 1 is from 5 a.m. to 1:30
p.m.; shift 2 commences at 8 a.m.'and goes to 4':30' p.m.; ~shift
3 starts at 10:45 a.m. and continues to 7:15 p.m. If a cook is
off for any reason and cannot work his scheduled shift, a
replacement must be found. All shifts must be covered.
On Saturday, April 29th the grievor was scheduled to
work shift-~. ~'. ...... the 10:45 a.m. to 7:15 p.m. shift. The' shift
i cook was advised by telephone at 7:15 a.m. that the shift 2
cook was ill and could not come in that day. It was the shift
1 cook's responsibility to find a replacement for the second
shift. Mr. Mailloux, the shift 1 cook, telephoned all of the
part-time people on his list and was unable to locate anyone
willing to cover the second shift. Accordingly, at 7:30
he telephoned the grievor and asked him to come in at 8 a.m.
instead of his regularly scheduled i0:45 a.m. The grievor
agreed and came in at 8 a.m. When the grievor came in, he too
called all of the part-time people and could find no one
else to come in. As a result, Mr. Mailloux and the grievor
covered all three shifts that day between the two of them. Mr.
Mailloux worked until 4:30 p.m., three hours beyond his regular
shift, and was paid over-time for those three hours pursuant to
Article 13 of the collective agreement.
The grievor worked from 8 a.m. to 7:15 p.m. that day
and was paid his regular salary plus three hours at the over-
time rate, which is time and one-half, pursuant to Article 13.
The grievor says that this was not a simple overtime
situation. He asserts that his shift was changed without 120
hours notice and therefore he should have been paid at the rate
of time and one-half for the first eight hours worked on his
changed shift pursuant to Article 10.1 of the collective
agreement. Thereafter, he should have been paid at the over-
time rate for the next three hours worked pursuant to Article
13.
While the employer originally characterized the extra
work as simple over-time, during the grievance procedure it
changed its position and described the first four hours work as
a "call back" pursuant to Article 14 Article i4.1 is set out
below:
- 3 -
CALL BACK
14.1 "An employee who leaves his place of work and is
subsequently called back to work prior to the starting
time of his next scheduled shift shall be paid a
minimum of four (4) hours pay at one and one-half (1
1/2) times his basic hourly rate."
The employer characterized the premium payment for the
day in question in a memorandum as follows:
"For the time you worked prior t° the start of your
regular shift, you were paid for a minimum of 4 hours at one
and one-half (1 1/2) times your basic hourly rate, i.e. 6 hours
pay for 8 a.m. to 12 p.m. For the remainder of your regularly
scheduled shift, from 12 p.m. to 7:15. p.m., you were paid at
your basic hourly rate."
The grievor strongly asserted at the hearing that what
happened that day was a change in shift schedule, followed by
over-time, and he was reinforced in his view by what was said
to him on the telephone by Mr. Maiiioux when he called him in.
In our view, what happened on the day in question must
be determined from an objective standpoint, and not on subtle
nuances of what was said to the grievor when he was called in
or what inferences were drawn from what was said. In our view,
over-time is worked after the regular hours of work, not
before, and this was not an overtime situation.' Neither was
this a change in shift schedule because the grievor worked his
regular schedule. What happened here was a call back pursuant
to Article 14, which specifically refers to the situation of an
employee being called back to work "prior to the starting time
of his next scheduled shift" Thus, for the hours 'between 8
a.m. and 10:45 a.m. the grievor was working on call back under
Article 14. Pursuant to that article, he is entitled to be
paid a minimum of four hours pay at one and one-half times his
basic hourly rate. Just because the call back period merged
into his regular shift schedule, does not mean that the grievor
cannot collect the full minimum premium pay guaranteed by
Article 14. The employer was incorrect in merging the cali
back minimum into the grievor's regular working hours. This
has been held in Several Grievance Settlement Board decisions
including Rich GSB 442/82, McGreQor et al. GSB 857/87, and in
the British Columbia case: Re: Campbell River and District
General Hospital and Health Sciences Associat±on (1978) 20
L.A.C. (2d) 425.
Thusr the grievor should have been paid four hours at
time and one-half for the work performed between 8 a.m. and
10:45 a.m.; then his regular salary for his scheduled eight
hour shiit, and we so award. We will remain seized of
jurisdiction in the event there is any difficulty calculating
~he amount owed to the grievor.
DATED at Toronto, this 2nd day of Feb-~ua~y., 1 .
l ...... .... ' _~, D . WINTERMUTE , ,. .Member
t ./ ./ \ ,.' ./ /' .
t .. ~, ,,~/-(,,x._,.~. <~ ,,~..~,.-~_,..z-,"~./
L .... " A. STAPLETON,f / ' Member