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HomeMy WebLinkAbout1989-0628.McIlwain.90-04-10 ONTARIO EMPLOYES DE t..A COURONNE ~.. CROWN EMPLOYEES DE L 'ON TARIO ?~* GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 OUNDA$ STREET WEST, TORONTO. ONTARIO. MSG 1Z8 - SU}TE 2~00 TELEPHONE/T£L~'PHONE 180, RUE DUNDAS OUEST, TORONTO. (ONTARIO) MSG 1Z8 - BUREAU 2100 (416) 598-0688 628/89 IN THE ~IATTER OF AN ARBITP. ATION Under THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Mcilwain) Grievor - and - The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations) Employer BEFORE: R.L. Verity Vice-Chairperson J. McManus Member A. Merritt Member FOR THE R. Anand GRIEVOR: Counsel Scott & Aylen Barristers & Solicitors FOR T~E P. Jarvis. EHPLOYER: Counsel Hicks Morley Hamilton Stewart Storie Barristers-& Solicitors HEARINGS: November 16, 1989 January 18, 1990 DECISION In a grievance dated May 5, 1989, Constance McIlwain alleges wrongful denial of the posted position of Senior Clerk IClassification OAG 8) at the Port Hope Land Registry Office. The grievor's seniority date is May 1986. The position was awarded to Donna Rayner, an unclassified employee who had worked in the Port Hope Office for six months prior to the competition. Miss McIlwain seeks ~pointment to Khe position pursuant to Article 4.3 of the Collective Agreement. That Article provides: In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. The posting was advertised in "Topical" as follows: SENIOR CLERK Registry/Land Titles (Office Admin. 8) (Schedule 3.7) $12.51 - 13.87 per hour (open) Join the Ministry of Consumer and Commercial Relations, land registry office, to: register and abstract documents (registry and land titles); sign documents and parcel entries; index, check and sign writs of executio,; examine plans; file; perform bookkeeping/reporting functions and general office duties. Note: You will be required to work in a smoke-free environment. Location: Port Hope. Qualifications: good knowledge of Registry and Land Titles ~cts, relevant statutes, regulations and office procedures; ability to work well under pressure in a high-volume area; accuracy; attention to detail; ability to read and plot descriptions' good accurate keyboard skills' effective communication skills; ability to communicate tactfully and courteously with professionals and public. Area of search: within commuting distance of Port Hope. Return application by March 28 to: FileCRoER-3, Ms. Pauline Green, Land Registrar, Land Registry Office No. 9, 17 Mill Street North, Port Hope, Ontario, KgA 4R5. The actual duties of the position are more fully described in a Position Specification and Class Allocation Form dated February 1, 1986. 1. Examines and registers documents submitted under the Land Titles and Registry Acts by: - examining several types of complex instruments with variation on each type to determine whether the description of the land is in compliance with regulations. This may require drawing a rough plan to check the accuracy of difficult descriptions which include curved boundaries, irregularly shaped parcels, lengthy metes and bounds description, etc; - pulling parcel register for the land ito determine whether the description in the document conforms to that description and that the parties dealing with the property are legally entitlted to do so; 25% - determining whether the instrument complies-with all relevant statutes, regulations, precedents and divisional policy; - returning unacceptable instruments whic~ do not comply and informing registrants the reason for the rejection; - determining the registration fee in accordance with the schedule of fees and recording the fee on the instrument; - checking accuracy of Land Transfer Tax Affidavit to consideration listed and calculating the Land Transfer Tax according to the prescribed formula and recording amount of tax on instrument; referring the most complex situations to supervisor for appropriate action;. .i - searching execution index in the case of Land Titles documents to determine lif there are any outstanding writs against the transferor(s). 2. Ensures that plans submitted for deposit or registration are in accordance with the provisions and standards of the 10% Registry and Land Titles Acts, regulations and policy by examination as per plan registration check-list. 3, Summary of duties and responsibilities: 1. Records details of Registry and Land Titles instruments by Abstract Index Books/Parcel Registers, Indices and Registers by: - receiving those instruments of varying complexity including those with involved metes and bounds descriptions, estate chains and etc.; - -locating previous entries f6r same land in Abstract Index BooKs to ensure continuity ~f records; - entering all pertinent details of instruments/plans on appropriate page of Abstract Index Book according to Abstracting Guide; - initia)ling instruments as abstracted and marking such data as lot and plan/concession number, volume and page number of Abstract Index Book; entering pertinent details of instruments in appropriate Indices and Registers such a% By-Law Index, Wills Register, General Register, etc.; - examining Discharge of Charge/Mortgage and related instruments to ensure that they have valid legal effect 20% and deleting appropriate instruments from the Abstract Index and signing/initialling same; following prescribed procedures if an error is found in the discharge; - conferring with supervisor regarding any difficult or unusual instruments and descriptions; - liaising with and checking abstract entries of other abstract clerks; - examining title and documentation in Land Titles to determine whether title can be transferred and to what nature of interests the title must be made subject ie: debts, spousal interest, executions, life estate, etc. and to determine whether any existing previous entry prevents or affects curren~ entry to be made, ie: Inhibiting Orders, Cautions, Restrictions, Easements, etc. and typing on appropriate parcel register all pertinent details according to the Abstract Guide; - maintaining an index of all Writs of Execution received in the Land Titles Office from the Sheriffs in Cobourg~ kindsay and Peterborough and keeping the index current by removing writs then withdrawn or spent; - making necessary repairs to pages of Abstract Index Books/Parcel Registers an~.instruments/documents. 2. Supplies counter service for solicitors, title searchers and members of the public by: - receiving service requisition slips and taking requested Abstract Index Books/Parcel Registers from shelf and bringing them ~o counter for customer; 15% - collecting Books/Registers after customrs have finished v~ewing them and shelving same; - receiving service requisitions slips requesting instruments, plans and whiteprints; - preparing photocopies (instruments/abstracts etc) as required; - receiving requisition slips for key counters, maintaining control of key counters, their issuance to users and monitoring their return and balance; - totalling requisition slips and collecting payment for the various services, maintaining control slip as required; - pulling and refiling instruments, whiteprints, plans etc. daily; - carrying out a general maintenance program for instruments, xerox copiers, whitepri, nting equipment, microfilm reader/printer; - providing routine information regarding office procedures, registrations and etc. at the counter or by phone; - assisting and setting up microfilm reader for searchers and refiling microfilm; - preparing (and certifying) copies of instruments and abstract/parcel pages; - recording registrations and other services on fee sheet; - performing daily bookkeeping functions, including daily balancing, auditing of Land Transfer Tax and making necessary entries and weekly and monthly reports. 3. Performs other duties as assigned by the Senior Deputy Land 5% Registrar and/or Land Registrar. 4. Assumes the responsibilities of the Senior Deputy Land 25% Registrar during his/her absence including co-ordinating activities of junior staff. The Port Hope Land Registry Office is a small facility which is administered by Registrar Pauline Green from her primary location at the Cobourg Land Registry Office. Essentially, the Port Hope Office consists of two full-time employees: a Senior Deputy Registrar and a Senior Clerk and, where funding is available, a contract employee. Apparently there were 31 applicants for the position. Five were interviewed including the grievor and Miss Rayner. The selection committee consisted of Northumberland West Registrar Pauline Green, Port Hope Senior Deputy Registrar Elizabeth Devine, and Acting Re§ional Manager Harvey Hale. The §rievor has considerable experience in both the Registry system and the Land Titles system. At the time of the competition in April, 1989, Miss McIlwain was Registration Officer (Classification OAG 8) at the Durham Land Registry Office in Oshawa. In particular, she was then serving in the acting capacity of Title Certification Clerk (Classification OAG 10). She had previously worked as a Law Clerk, primarily in real estate, for some seven years in Oshawa prior to corm~encing employment with the Ministry at the Durham Registry Office in May 1986. On the other hand, Miss Rayner's Land Registry experience was limited to a. six month assignment immediately prior to the competition. Miss Rayner, although present at the hearing, took no active part and was not called upon to testify. The selection committee based its decision to appoint Miss Rayner solely on the basis of marks obtained in the inter¥iew, the written test and the typing. test. The selection committee did not review the personnel file of any applicant, nor did any committee member speak with applicants' supervisors with the obvious exception of Miss Rayner whose immediate supervisor, Elizabeth Devine, was a panel member. Each panelist used the following selection criteria: Legal/Survey/Technical Knowledge: Points: - ability to leaKn relevant 50 x 1 50 acts, regulations etc. - ability to identify complex situations - comprehension of legal terminology - written Operational/Systems Knowl edge: - office procedures 50 x 2 100 - working under pressure - accuracy~and attention to detai 1 Suit abi 1 i ty/Potenti al: - good interpersonal and 50 x 3 150 communication skills - organizational skills - good accurate keyboard skills TOTAL POINTS 300 The total score when averaged was 185.3 for Miss Rayner and 165.7 for the grievor. The grievor scored poorly on the typing test which' accounted for 60 of the 150 marks assi§ned under Suitability/Potential. The typing result was. I8 marks (out of a possible 60) for the grievor as compared with 51 marks for Miss Rayner. Miss Green testified that the ability to type accurately is "crucial" to the position. In her opinion, typing constituted approximately 20-25% of the job, Further, she testified that it was impossible to perceive how the grievor would be able to cope. without the requisite typing ability. The grievor~readily acknowledged that she was not a skilled typist, but maintained that she had not been properly instructed on the use of the typewriter prior to the typing assignment. The Union argued that the selection process was fatally flawed in the absence of a review of personnel files and 'discussions with supervisors. It was contended that the grievor should have been assigned marks for her extensive experience and that the weighting of the technical knowledge component was. totally inadequate. Mr. Anand submitted that the Employer exaggerated the importance of typing in light of the classification of the position, and in his submission· typing would be in the range of 10% of the job. He maintained that adequate typing skills, as opposed to technical knowledge, could be quickly acquired. In the alternative, Mr. Anand argued that there was relative equality in the scores of the grievor and Miss Rayner, which should have resulted in the grievor's appointment to the position. The Union cited the following G.S.B. authorities: OPSEU (J. Christmas and G. Chaput) and Ministry of the Attorney General, 907/86, 908/86 (Gandz); OPSEU (P. LaIl) and Ministry of Health, 1726/87 (Fisher); and OPSEU (N. Poole) and Ministry of Health, 2508/87 (Samuels). The Employer contended that despite acknowledged procedural flaws, the grievor was not entitled to the position under Article 4.3 because of her inability to type. Mr. Jarvis maintained that typing could have been weighted higher than 20% and that, in reality, there was no time to learn to type on the job. He argued that there was no basis for any finding that Miss Green erred in the weight she placed upon the typing qualification. In support, the following cases were submitted: OPSEU (M, McCaig) and Ministry of the Solicitor General, 191/88 (Fisher); OPSEU (Keith Anderson) and Ministry of Environment, 105/86 (Wright); and The Public Utilities Commission of the City of Scarborough and Local Union I, Utility Workers of Canada (unreported award of R. O. MacDowell dated October 27, I987}. On the evidence adduced, the Board has concerns as to the procedures followed in this competition. Clearly, Miss Rayner had the advantage of two members of the selection committee being fully apprised of her past performance. In our opinion, the grievor had the right to expect that the committee would review her personnel file and speak with her supervisor, Unfortunately, neither event occurred. In numerous decisions, the Grievance Settlement Board has commented on the necessity of the panel having full knowled§e of each applicant granted an interview, especially where the successful candidate works for one or two members of the selection committee. We adopt the rationale of Vice-Chairperson Samuels in OPSEU (MacLellan and Degrandis) and Ministry of Government Services, 506/81 where he states at pp. 25-6: The jurisprudence of this Board has established various criteria by which to judge a selection process: t. Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification. 2. The various methods used to assess the candidates should add~ess these relevant qualifications insofar as is possible. For example, interview questions and evaluation forms should cover all the qualifications. 3. Irrelevant factors should not be considered. 4. All the members of a selection'committee should review the personnel files of all the applicants. 5. The applicants' supervisors should be asked for their evaluations of the applicants. 6. Information should be accumulated in a systematicI way concerning all the applicants. See Remark, I49/77; Quinn, 9/7B;'Hoffman, 22/79; Ellsworth et a~l, 361/80; and Cross,-'~'-~9/81. In addition, related experience should have been part of the selection criteria. It is interesting to note that the selection criteria developed by Miss Green (Exhibit 9).provides 10 marks for experience and related issues. -For whatever the reason,, the selection committee failed to assign any marks for experience. - lO- As indicated in both the posting and the job specification form, the Senior Clerk position requires knowledge (indeed, detailed technical knowleOge) of statutes, regulations and documentation required in. both the Registry System and the Land Titles System. We would agree with the Union contention that the weight accorded to the legal/survey/technical knowledge component is inadequate when compared with the job specification form (some 60% as described in duties 1, 2 and 4 of Exhibit 3). Similarly, it is not the "ability to learn relevant acts, regulations etc." that ts required, but rather the actual knowledge a candidate maY possess. The Board would not hesitate to award the position to the grievor, but for the result of her typing test. Clearly, that result was unsatisfactory. The grievor achieved 0 out of 10 on the first page of the typing assignment and 6 out of 10 on the second page. Did the grievor's unfamiliarity with the particular typewritter effect the result? The grievor maintains that she was not properly instructed fn all aspects of the use of the typewriter. We accept her evidence in that regard. With the introduction of numerous sophisticated models of typewriters, it would make sense, we think, that selection boards prepare written instructions on the use of the typewriter and then allow a reasonable period of time for each candidate to become familiar with the machine. Clearly, typing is a requirement'of this position. However, in the classification of the position as OAG 8, no points were assigned to typing skills. In the Office Administration Class Standard, typing is considered a "technical" skill, in appropriate circumstances, in the skill factor definition. On page 12 ~ 11- ~ of Exhibit 17 the following statement appears: To qualify for scoring, a "technical" skill must be stated as a requirement in a position specification, and it must be required at an appropriately accomplished level, such as CSC standards; the skill would also be required to be used on a regular basis. In the instant matter, typing.is specified in the position specification form under the skill and knowledge section by the words "good accurate keyboard skills are essential" We accept Miss Green's evidence that accurate typing is a requirement of the position in question and that the skill is used on a regular basis. For example, there can~be no doubt that under the Land Titles System all abstract entries in parcel registers must be typed. ~n that system, it is the Government of Ontario that is guaranteeing title and accordingly liability follows in the event of error. Apparently what the position ~oes not require is typing "at an appropriately accomplished level, such as C.S.C. standards". Presumably, it is for that reason that no points were assigned to typing in the skill factor when the Senior Clerks position was classified in January 1989. For the above reasons, the Board is satisfied that this is an appropriate case to order a rerun of the competition, In that regard, it would be helpful if information was obtained as to the exact percentage of time spent in typing as well as the feasibility of on-the-job training to acquire the necessary level of skill. Accordingly, we allow this grievance and make the following order: i. The Ministry shall hold another round of interviews for all those applicants originally interviewed who still wish to be considered. 2. The interview panel shall consist of three persons, none of whom shall have participated in the earlier interviews. 3. The interview panel shall establish a series of questions properly weighted in both the technical requirements and typing requirements of the job, which are relevant and wilt offer adequate information to enable a judgement concerning the candidates' possession of the selection criteria. 4. The interview panel shall consult the personnel files and performance appraisals of ail the candidates, and consult at least one supervisor familiar with the work of each candidate. 5. The candidates and selection panel shall be provided with copies of the posting and position specification form, so that they can address the particular duties of the job in question. In the event the grievor is successful, she shall be compensated for all lost wages and benefits, if any, as a result of the flawed selection procedure. This Board shall retain jurisdiction to deal with any concern arising from the implementation of this award. DATED at Brantford, Ontario, this 10th day of April, 1990. A. MERRITT - MEMBER