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HomeMy WebLinkAbout1989-0967.Couture.91-06-11 ONTARIO EMPLOYES LA DE COURONNE CROWN EMPLOYEES DE L'ONTARiO GRIEYANCE C.OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ;80 OUNOA$ STREET WES7', SUITE £?0~ TORONTO, ONTAFtE), MSG 1Z8 TELEPHONE/TELEPHONE: ('~76) 3~6-r388 100, RUE DUNDAS OUEST, BUREAU 2;0~ TORONTO rONTAR~O~. MSG 1Z8 FAC$1MfLE/TEL~'COPlE ; (4~6J 326-1396 967/89 IN THE MATTER OF AN ]tRBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU(Couture) Grievor The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: R. Verity Vice-Chairperson T. Browes-Bugden .Member F. Collict Member FOR THE S. Watson GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solictors FOR THE P. Young · EMPLOYER Counsel Winkler, Filion & Wakely Barrister & Solicito'rs HEARING January 30, 1990 'April 24,25, 1990 September 6, 7, 1990 November 12, 1990 DECISION This grievance results from a competition in May, 1989 for three positions of General Duty Officer, classified as Correctional Officer 2, at the Niagara Detention Centre at Thorold, Ontario. David Couture, a Correctional Officer 2 at Metropolitan Toronto West Detention Centre and with a home in Port Colborne, Ontario, applied unsuccessfully for the position. For some period of time he had wanted a transfer to the Niagara area, a fact that was well known to the management of Metro West. In being denied the position, Mr. Couture alleges an employer violation of the provisions of Article 4.3 of the Collective Agreement. The relevant provision reads: 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 three positions were awarded to Margaret Gifford, Barbara Heinrich and Paul Stanson. It was agreed that Margaret Gilford had greater seniority than the grievor and is not 3 affected by the outcome of this case. However, the grievor has ~reater seniority than either Ms. Heinrich or Mr. Stanson. Both incumbents attended at the hearing and were given full righ{s to participate. In this case the real issue, we think, is whether or not the grievor was involved in a fair competition. The thrust of the Union's case was that the selection procedure was fatally flawed, that there was unrebutted evidence of bias.on the part of the selection committee and that the grievor's qualifications and ability were at least relatively equal to Ms. Heinrich and "possibly" to Mr. Stanson. Obviously, the grievor, as a Correctional Officer 2 at the time of the competition, was qualified to perform the work. In July 1985, he commenced work as a Security Officer with the Ministry of the Solicitor-General. On May 25, 1987, after success in a competition, he began to work as a C.O. 1 at the Metropolitan Toronto West Detention Centre. Upon successful completion of all Ministry training procedures, he was appointed a C.O. 2 on May 25, 1988. Paul Stanson worked as a C.O. 1 at Maplehurst Complex 4 from February, 1987 to January, 1988. He has worked at Metropolitan Toronto West Detention Centre as a C.O. 2 since January 4, 1988. Barbara Heinrich was appointed to the unclassified staff at the Niagara Detention Centre in April, 1989. At the time of this competition, she had some seven weeks experience with the Ministry and, at best, may have completed phase one of the four phases of the Ministry training. However, she had some four or five years of experience with Corrections Canada as a full-time Correctional Officer at the Prison for Women in Kingston, Ontario as weil as initial training at Collins Bay Penitentiary and at Joyceville Penitentiary. Based primarily on the generic job' description for Genera[ Duty Officer at Niagara Detention Centre, the posting read in material parts: DUTIES: The Niagara Detention Centre requires mature, responsible individuals who can function in a structured, disciplined setting, to perform a full range of duties related.to the correctional care, con[roi and supervision of primarily young offenders on a rotational shift basis. The Niagara Detention Centre is a multi-functional maximum security institution with a current capacity for 130 adult inmates, and a new secure custody unit with a capacity for 20 young offenders. qUAI~FICATIONS: Ontario Grade 12 or formal proof of an equivalent educational standing; satisfactory related work experience~ good oral and written communication skills, developed interpersonal skills and ability to work effectively with young offenders, adult inmates, super¥isots, peers, volunteers, etc,; willingness and ability to work rotating shifts, weekends and holidays, ability to meet Ministry medical and physical standards, successful completion of Ministry correctional officer · training and one year~s current satisfactory experience as a Correctional Officer 1 (suitable candidates lacking the latter criteria will be requited to underfill at the Correctional Officer 1 level), satisfactory attendance and work record. Selected candidates may be required to periodically rotate through both'adult and young offender work assignments. (Staff assigned to the Young Offender Unit may be non-uniformed.) NOTE 1: Applicants will be requited to have successfully completed Ministry Central Recruitment testing, unless currently employe~ on the classified staff as a Gorrectiona± officer 1 or 11. Qualified and eligible applicants are invited to submit an. application/resume stating their qualifications and work experience not later than'4:45 p.m. on June 9, 1989 to: Mr. R. J. Cole, Superintendent, Niagara Detention Centre. AREA OF SEARCH: This competition is restricted to classified and unclassified employees residing/working within 40 kilomettes of Niagara Detention Centre. POSTING DATE: May 29, 198'9 CLOSING DATE: June 9, 1989 There were 20 applicants for the three positions of which 12 were interviewed. It was felt that any applicant within the area of search who had significant experience warranted an intevview. Two members of the selection committee, Messrs. Ross and Thomas, made the decision who would 'be granted interviews based .on a review of the applications and the resumes submitted. Ali applicants were advised of the time and place of the interview through direct contact with the applicant's institution. The selection committee consisted of Bryan Ross, Central Regional Personnel Administrator; Bob Thomas, Senior Assistant Superintendent at Niagara Detention Centre; and George Hilton, Operational Manager at Niagara Detention Centre. A standard format was followed for the interviews and each candidate was interviewed for approximately 30 to 35 minutes. In addition, the selection committee allocated some 10 minutes per applicant to review the application and any accompanying material prior to each interview and for discussion purposes following the interview. Personnel files were reviewed by all committee members following the interviews. At the conclusion of each interview, applicants were asked to sign a reference check consent form to authorize supervisor's reference checks as well as to gain access to personnel files, allegedly pursuant to the Freedom of Information Act. At the beginning of each interview, the format was explained and instructions were given to answer all questions as thoroughly as possible. Further, each applicant was advised that at'the conclusion of the interview he or she 7 would have the opportunity to ask questions and offer any additional information. The interview took the form Of a test in which marks were assigned by each panel member out of a possible 100. The application and attached resume was reviewed with each applicant with a view to assigning marks for experience and educational background. The test allocated 20 marks for experience (Part ~), 10 marks for education and backgrouhd (Part B), 54 marks for knowledge and personal suitability (Part C),. and 16 marks for communication skills (Part D). Under "Knowledge and Personal Suitability" there were 12 detailed questions designed to determine general knowledge. Scores were allocated by each panelist throughout'the interview and there was no consensus marking. Each panel member made brief notes of the answers given. However, the panel did agree upon a marking scheme for experience whereby two marks were allocated for each year of classified correctional service and one mark.for each year of unclassified service. The relevant tests results were as follows: 8 Margaret Gilford - 216.5 - 72.2% Barbara Heinrich - 202.5 - 67.5% Paul Stanson - 193 - 64.3% Vince Ferraro - 178.5 - 59.5% David Couture - 167.5 - 55.8% The grievor ranked fifth in the overall competition. Mr. Ferraro, who had greater seniority than the grievor, did not file a grievance. A panel review of the personnel files showed that all applicants had performed in a satisfactory manner. However, in early July, 1989, Mr. Ross contacted the grievor's supervisor, Garry Pickering, then Senior Assistant Superintendent at Metro West, and obtained what he described as a "below average reference". Mr. Ross prepared a written account of his conversation with Mr. Picketing (Exhibits 3 and 16). Briefly stated, the reference revealed that although the grievor performed satisfactorily as a Correctional Officer and was consistent in approach, he had difficulty on occasion with his supervisor and had not been co-operative with regard to a mandatory medical in February 1989. In a nutshell, Mr. Pickering did not recommend the grievor for transfer. 9 The ~rievor testified that he had been off work with a work- related back injury for several months prior to the competition. He recalled that he had several unpleasant encounters with his supervisor, Mr. Picketing be~innin~ in September, 1988 re~arding the use of sick leave credits, the nature of the medical problem, and approval for a mandatory medical examination. Accordin~ to the grievor's evidence, in May 1989,'Superintendent Phillipson told him that he had been acting like a jerk for filin~ ~rievances. The grievor testified that at the time of the competition he had three outstanding grievances (travel expense, mandatory medical and classification). Mr. Couture expressed concern that prior to the commencement of the interview on June 29, panel member Bob Thomas enquired about his back and made reference to the fact that he had'been off work with a back injury. According to the grievor, Mr. Thomas' remark made him think that there'was bias on the part of the selection panel and that the process was flawed. However, the grievor testified that he felt that he had performed well during the course of the interview. Mr. Couture believed that many of the questions asked were unsatisfactory in a number of respects. In cross-examination he 10 testified that he was concerned that his experience and related experience as a correctional officer had been underestimated by the committee and that Barbara Heinrich got too much credit for her federal experience. The second witness called by the Union was provincial C.O. Charles Lemmon who was employed by Corrections Canada some 20 years ago. His evidence was to the effect that unlike the provincial system, paperwork in the federal system was minimal. The only witness called by the Employer was Bryan Ross, Chairperson of the selection committee. For the past three years he has held the position of Area.Personnel Administrator and has served on selection panels in some 100 job competitions. From his previous experience as a Correctional Officer, he agreed with the generic job specification form that approximately 80% of the job of a General Duty Officer involved the control~ supervision and custody of inmates in an institution, Mr. Ross testified that he had not spoken to Messrs. Picketing or Phillipson prior to the grievor's interview and that to the best of his knowledge neither had the other two panelists. In particular, Mr. Ross said that he had no knowledge that the 1i grievor had three outstanding grievances and no knowledge that the grievor had been off work with a back injury at the time of the interview. The committee chair emphasized the fact that a standard format was followed for each interview. Mr. Ross stated that the panel was impressed by Barbara Heinrich's federal experience which it deemed "substantially similar to a provincial correctional officer" and ~'significant and directly related" to the position in question. 'For that reason, she was given ten out of ten for Correctional experience in recognition of her five years full-time experience with Corrections Canada. Under the heading of experience, including related work experience and volunteer experience, Ms. Heinrich obtained a cumulative score of 45/B0 as compared with 21/60 for the grievor and the identical score for Mr. Stanson. However, in scoring knowledge {a possfble 54 marks) Mr. Stanson obtained significantly higher marks than either the grievor or Ms. Heinrich. Mr. Ross recalled that the grievor had difficulty understanding the essence o£ one question pertaining to the rights of young offenders (question 11) and did not know the answer to another question regarding a scheduled inmate release on a Sunday and a request to remain in custody (question 12). On the basis of the total scores and the grievor's 12 relatively low marks, Mr. Ross concldded that the grievor was not relatively equal to any of the three successful applicants. In cross-examination, Mr. Ross testified that he "begins to consider relative equality at around the 5% mark". In that regard, he then reviews whether the competition was fair and whether the questions were properly weighted. Mr. Ross testified that the competition process does not end with the scores and there must be a review by the. entire panel of the applicant's personnel files followed by reference checks. The personnel files of each applicant Were found to be "reasonably satisfactory". Mr. Ross spoke with Mr. Thomas for a reference check on Barbara Heinrich and apparently reviewed a pre-employment record prepared by Niagara Detention Centre and dated April 1989 which indicated a f~vourable performance rating during her tenure with Corrections Canada. However, Mr. Ross made no attempt to contact the Kingston Prison for Women to verify Ms. Heinrich's performance at the federal level. Similarly, Mr. Ross spoke with Mr. Picketing regarding both Stanson and Couture. Apparently Stanson was given a positive reference by his supervisor. As previously indicated, Mr. Ross ~ot a negative reference from Mr. Picketing regarding David Couture. Accordin~ to Mr. Ross' evidence, the grievor's attendance record was not a factor in denying him the position as it had already been determined that there was no relative equality. Turning now to the submissions of the Union, we re,ject outright the argument that the selection committee was in any way biased against the grie¥or. We are satisfied that Bryan Ross was a credible witness with considerable experience in job competitions. We do not hesitate to accept his evidence that' at the time of the competition.he had no .knowledge that the grievor had been off work with a back injury, Had the question been raised before the selection panel, as the grievor suggests, Mr. Ross would have recalled that fact. Clearly, he had no such knowledge. Similarly, we accept his evidence that he had no prior.discussions or communication with either Messrs, Picketing and Phillipson and was unaware of any difficulty the grievor might have experienced at Metro West. Et appears to us that the grievor based his testimony of bias on assumptions without the benefit of personal knowledge of the facts. The grievor acknowledged that he was not questioned at the interview with regard to attendance. The remarks by Mr. Thomas about the grievor's back injury we would characterize as an innocuous question devoid of ulterior motive. The logical inference, we think~ is that Mr. Thomas became aware that the grievor was off work when he was advised of the telephone call made to Metro 14 Toronto Detention Centre to advise Mr. Couture as to the time and place of his interview. In these particular circumstances, the Employer cannot be faulted for its failure to call evidence from Mr. Thomas, Mr. Picketing or Mr. Phillipson. The major thrust of the Union's case was an attack on the method of evaluation used by the Employer and the submission that everything depended on the interview. Briefly stated, the Union contended that the procedure was so flawed that the grievor should be given the job or alternatively that the competition should be rerun using proper assessment methods. In s~pport, th~ Union cited the following authorities: OPSEU (RoWland ~llivan) and Ministry of Correctional Services, £2411/87, (Fraser); O_~U (Rankin) and Ministry o[ Correctional Services, £1250/88, (Kates); OPS~U (Eadie) an~ Ministry of Correctional Serv_i_c~.s, £766/88, (Devlin); OPS~U (N. Poole~ am~ M~nis~m¥ of ~alth, £2508/87, (Samuels); OPS~U (Robert Jeffr~w) and M/ni~trv Qf Health, £1509/84, (Verity); OPSEU (Riddock) and Ministry of Correctional Services, £592/83, (Verity); OPSEU (June Misir) and Ministry of Health, £142/88, (Dissanayake); OPSEU (D. Nixon) and Ministry of Transportation, £24]8/87, (Fisher); and Re Board of Sch0o] Trustees of School District No. 68 (Nana~mo) and Canadian Union of Public RmD]ovees~ Local 606 (1985), 19 L.A.C. (3d) 176 15 Germaine )'. The Employer maintained that the selection committee procedure was appropriate and that if there were any defects they were of insufficient magnitude to invalidate the competition. The Employer relied upon the following ~uthorities: l~_~beam ~ome and l~Bdon ~nd D~strict Service Workers' Union, (1988), 13 L.A.C. (3d) 183 (Rayner); Mrs. Mary Gavel of Health, £145/80, (Barton); and OPS~U (Keith Anderson) and Ministry Of Environment, £105/86, (Wright). Clearly, Article 4.3 is.a relatively straightforward competition clause' in which seniority becomes a factor only where candidates are deemed to be relatively equal in t~rms ~f qualifications and ability. The Collec{ive'Agreement makes no provision for the lateral transfer of employees from institution to institution. The jurisdiction of the Grievance Settlement Board on the expected standards in a job competition were shmmarized by Vice-Chairperson Samuels in Ma~ellan and DeG~andis, £506/81, £§07/81, £690/81 and £69[/81 at pages 25 and 26: The jurisprudence of this Board has established various criteria by which to judge a Selection process: 1. 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 address 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 ~or their evaluations of the applicants. 6. Information should be accumulated in a systematic way concerning all the applicants. See Remark, 149/77; Quinn, 9/78; Hoffman, 22/79; Eilsworth' 'et al, 361/80; and Cross, 339/81. The central question is whether or not the selection methods used were reasonable so as to constitute ~ fai~ competition. On all the evidence, we are satisfied that there was a fair competition in this case. This particular selection format cannot be described as novel and has been used by the Ministry, without challenge, on numerous occasions. We find that the twelve questions in Part C, designed to test general knowledge, reflect the duties of a correctional officer as outlined in the job specification. The questions require answers which will demonstrate an indepth knowledge of 17 the role of a correctional officer. It must be emphasized"that this is a competition and accordingly the questions must reflect that fact. The quality of the answers given will depend in large measure on the extent an applicant's review of relevant material and the general level of preparation. It is difficult to understand why the grievor'would not have taken advantage of the opportunity to-read the Ministry's Manual of Standards and Procedures, commonly known in Ministry circles as "the Bible". While it is true that individual copies 6f the Manual are mot made available to correctional officers, there are numerous copies which ~re readily available within each Institution. It is the duty of individual selection committee members to evaluate the experience and job related experience of each applicant. It is worth noting that Ms. Heinrich had no young offenders experience whereas Mr. Couture had some experience. It is quite understandable, we think, that the committee fully recognized Ms. Heinrich's extensive federal experience on an equivalenc~ basis with provincial correctional service. In addition, the committee quite properly took into account Ms. Heinrich's one year of service as an O.P.P. officer in Espanola and her one and one-half years experience as a clerical worker with the Niagara Regional Police. 18 It cannot be said that this competition was perfect - few ever are. We would suggest that the assignment of 16 marks for communication skills was an excessive weighting. Marks in this category will inevitably lead to an attack on the basis of undue · subjectivity. However, it is interesting to note that there is relatively little difference in the marks of the three candidates in this particular category. While it is true that no marks were assigned for a review of the various personnel files and reference checks, both of these tasks were fully performed. Although the F~edom of Information and Protection of Privaqy Act, 7987 R.S.O. c.~5 may have changed the procedure somewhat, a better approach may have been to have the applicants' personnel files available for review by committee members at the time of the interviews. See generally, R]]sworth et a] a~ld_~r~L_Q31 Com~Dn~ty end Social Serv~ce~ £361/80 (Jolliffe). However, in general, we are satisfied that the selection methods were fair and fell within the ambit of reasonability.. This competition was open to both classified and unclassified staff. Ms. Heinrich was an unclassified employee with only seven weeks experience with the Ministry. Although she had not completed the formal Ministry training program, we are 19 satisfied that Ms. Heinrich was-qualified within the meaning of Article 4,3 on the basis of evidence of equivalency of training in the federal correctional system. However, Ms. Heinrich brings to this competition a wealth of experience based on her four or five years of full-time employment with Corrections Canada and her 2-1/2 years experience with the OPP and the Niagara Regional Police. Clearly, her pre- employment report prepared at the Niagara Regional Detention Centre when she was ~irst hired in April 1989 indicates good to excellent performance in the federal'service. The onus is on the grievor to establish relative equality within the meaning gf the Collective Agreement. The expression "relative equality" has been considered in a number of arbitration awards. For example, in Great Atlantic a~l~_~aci£ic Tea Com~an~ of Canad~ l.td. (1979), 21 L.A.C. (2d) 444 (Weatherill) the arbitrator explains the concept at p. 447: In R¢ L~dy Gait Towels Ltd. an4 TextiLe Workers UDion (1969), 20 L.A.C. 382 (Christie), the Board adopted the view that the test of "relative equality" is really one of determining whether or not one employee is more qualified. than another by a "substantial and demonstrable margin". We would agree with 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 difference between employees must always be "demonstrable" if they are to be relied on, the notion of what is a "substantial" margin of difference is, like the notion of "relative equality" itself, one which calls for judgment in relation to the relevant circumstances. While a small. difference between individuals might not be substantial or significant with respect to some unskilled job, a small difference could well be substantial and significant in relation to a more complex task. It is a matter of 3udgment, and, at least under the collective agreement before us, that judgment is to be exercised in the first instance by the company. In the instant matter, the Board finds that the selection procedure was well within the ambit of reasonability and the end result was correct. Given that finding and given the 'overall test results, we cannot find that the grievor was relatively equal in terms of qualifications and ability to either Ms. Heinrich or Mr. Stanson. On the evidence, we find that there is a substantial and demonstrable margin in favour of the successful applicants. From the evidence of Mr, Ross, it would appear that the grievor's negative reference check played no part in denying him the position. Mr. Ross had already concluded that the grievor was not relatively equal on the basis of the total scores. However, had the reference check played a determinative role, the grievor could no~ have expected to have been successful. Given the fact that Ms. Heinrich's extensive experience was not within the Ontario Public Service and the fact that she has not completed the Ministry training program, she was properly appointed to one of the positions on an underfill basis at the G.O. 1 level. Upon completion of ali aspects of the staff training program and one year's service with the Ministry she will then be entitled to the C.O. 2 position. For all of the above reasons, this grievance is dismissed. DATED at Brantford, Ontario, this Ilth day of June , 1991 . ' R. L. VERITY, (~.C. - VICE-CHAIRPERSON "I Dissent" (d~ssent attached) T. BROWES-BUGDEN - MEMBER GSB ~967/89 OPSEU (COUTURE) AND THE CROWN RIGHT OF OMTARIO .(MINISTRY OF CORRECTIONAL SERVICES) DISSENT I respectfully dissent from the majority in this award. The grievor, Mr. Couture; should have been one of the successful candidates in this job competition as he has the "qualifications and ability to perform the required duties". Yet, he was not successful and the following will outline why he should have been selected. The interview was the test in this competition. There are three areas of concern with regards to the interview questions. First, the weight assigned to knowledge was 54% and to experience 20%. The function of a Correctional Officer 2 is a technical job. Therefore, the weighting of only 20% for experience is an incorrect emphas%s. The-second concern deals with an overrating of points in the experience section. Specifically ope of the successful candidates,.Ms. Heinrich, was assigned the same amount of points for experience in a federal correctional institution as compared with provincial correctional institutions. I can understand the Union's concern in this area. It may be said they are similar in the type of institution but, the difference is the Federal and Provincial systems. The last concern refers to the section of the test called communication skills. I do not believe this section is too helpful as it is highly subjective and it carries far too much weight, some 16%. Therefore, because of these three areas of concern I do not feel the interview was a fair process. it seems evident that Mr. Couture is qualified for this position due to the fact this was a lateral transfer for him. He applied for a Correctional Officer 2 position that was the same classification, and a very similar Job, to that he was performing. In this circumstance it is difficult to conclude that he was not "qualified" or "experienced" enough to be a successful candidate. In conclusion, for the foregoing reasons, I would have allowed the grievance and awarded Mr. Couture a Correctional Officer 2 position at the Niagara Detention Centre. U~ion Nominee%~ '