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HomeMy WebLinkAbout1989-1126.Wynn.90-09-19 · ~, . * .'. , ONTARtO EMPL OYli:$ DE LA COURONNE w CROWN EMPLOYEES DE L'ON TARfO GRIEVANCE COMMISSION DE SETTLEMENT R .GLEMENT BOARD DES GRIEFS 180 OUNOAS STREET WESF, TORONTO, ONTARtO, M5G tZ$-SUITE 2rGb; TELEPHONE/T~PHONE 180, RUE DUNDAS OUES~ TORONTO, (ONTARIO) M5G ~Z8- BUR~U 2~00 (416)5~-0~8 1126/89 ~T~E CRO~ EMPLOYB~S COLL~CTIV~ B~INING Before THE GRImaCE SETTLEH~T BO~D BETNEEN: OPSEU (~¥nn) GrieVor - and - The Crown in Right of Ontario (Minist[y of Transportation) .. Employer - and - BEFORE: R.L. Verity Vice-Chairperson G. Majesky Member M. O'Toole. Member. FOR THE H. Law GRIEVOR: Grievance Officer Ontario Public Service Employees Union FOR THE C. Peterson EMPLOYER: Counsel Winkier, 'Fi'lion and Wakely · ' HEARINGS:. March January 8,19,19901990 ~ '~ DECISION This matter involves a competition for two secretarial positions (classification OAG 8) at the Ministry's Dow~sview Office in June and July, 1989 in which Shantie Prithipal and Rose Ierullo were awarded the positions. :Following the' competition, Mrs. Prithipal beca~ne secretary to John Robinson in the Reg.ional Municipal Maintenance Engineering Office and Mrs. Ierullo was appointed secretary 'to Ray Hanton, Regional Manager Engineering and Right-of-Way. Mrs. Mona Wynn, who placed third in the ovJrall 'competi%ion alleges that she was wrongfully~denied one of the positions.' Mrs. Prithipal had the greater seniority and as a result the Union does not challenge her selection. The qualifications for thelposition in question are specified in thj posting as follows: Qualifications: typing, dicta, word-procesging skills to Ontario government standards to operate a fully programmable microcomputer and electronic memory typewriter; demonstrated responsible secretarial ana clerical experience; good interpersonal skills; initiative, tact, good judgment; excellent gran~nar, spelling and communication skills. Rose Ierullo has worked for the government'since January.195g while the griJvor's tenure dates back to 1981.. The Union contends that the grievor is entitled to the secretariallposition awarded to Mrs. Ierullo, the candidate who was ranked first in the competition. The Article alleged to have been violated is Article 4.3 of the Collective Agreement: 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. Briefly Stated, the Unionts attack on Mrs. Ierullo's selection is based on three 'grounds: 1. That the grievor's qualifications and' ability are relatively equal to those of-Mrs. Ierullo and that ' accordingly seniority'should be the governing factor. 2. That there was inadequate weighting to the typing component · of the interview. 3. That the competition was .not conducted fairly. .. The Union referred th~ 8oard to the f6l)owing authorities: OPS£U (J. Christmas and G. Chaput) and Ministry of the Attorney General, 0907/86, 0908/86 (Gandz); and OPSEU (D. Bent) and Ministry of .Transj)ortation, 1733/86 (Fisher). : The Employer argued that there was no violation of Article 4.3 and that the Union challenges lacked merit. The Employer cited the following authorities: OPSEU (Rita Strazds) and Ministr~ of Natural Resources, 88/83 (Jolliffe); and OPSEU (Keith Anderson) and Ministry of Environment, 105/86 (Wright). A three person selection committee composed of Ray Hanton, John Robinson and Bonnie Lyte interviewed nine of 50 applicants for the pos'itions. Eight were interviewed on July 7 while the grievor, who had been ill, was interviewed on July 14. The panelists assigned marks to each applicant and ranked them on July 14 following Mrs. Wynn's interview. Each applicant was asked identical questions under three components; namely, technical skills, including a practical typing test, interpersonal skills, and judgment.and initiat'ive. Each panel'ist assigned marks (out of 100) independently in accordance with a pre-dete[m, ined marking scheme. -In addition, the panel considered reference ~hecks from names provided by individual applicants.and available, performance appraisals. The 'Board had the advantage of reviewing the extensive documentation.used by the panel in this competition. As .between the grievor and Mrs. Ierullo, the total marks, including the results of t~e typing test, were as follows: Rose Ierullo - 230 Mona Wynn - 206 All three panelists assigned higher marks to Rose ierullo than to the grievor, However, the evidence established that Mr, Hanton's scoring {84 to 68) represented the widest variation in marks. The differential in favour of Rose The' Union attacked Mr.'Hanton's allegedly "unorthodox" system of. scoring as unfair and compeliing evidence of favouritism towards Mrs. Ierullo. With respect, we cannot agree. Mr. Hanton's marking scheme (high - low) was consistent in the scoring of each applicant. The Board was impressed with Mr. Hanton's testimony at the hearing, his obvious experience in interview procedures and his apparent objectivity in assessing qualifications. In our opinion? there is no si§nificance to his writ~ comments concerning indivi'dual applicants and we accept, without hesitation, his testimony that such comments were for the purposes of identification. Clearly, the test related to the requirements of the job and was administered fairly, reasonably and without bias. The Union challenged the wei§htin§ of the typing test. The evidence was that the'typing component was 15% of the total score. -The §rievor' did well on that portion of the test, whereas Mrs. Ieruilo did nOt. It was agreed, however, that each ~andidate who was~ interv{ewed did have the requisite typin§ skills. We would .. conclude'that the Yariation in marks was ~tue ~o unfamiliarity'Wl'th the equipment used on the tTpin~ test.. In our opinion, the Oei~htln§ factor of 15g for the. "" typing Component was appropriate. The real issue, we think, is whether or not it can be said that there was relative equality between the 9rievo~ and-Mrs, ierullo which would justify appointment of the senior.employee. The Employer made the decision to appoint· Shantie Prithipal to one of the secretarial positions on the basis of a 21 point differentiai betwee~ ~r$. ~i~p~ and the second ranked candi'date, Shehnaz Bana. Assum~n§, without deciding, that a 24 point differential betwee~ the grievor and Mrs. Ierullo constitutes relative equalitY,'the gap between these two employees widens when the reference checks and performance appraisals are taken into account. The evidence of Mr. Hanton established that an "excellent" reference check was provided by Bruce Dickie for Mrs. IerUllo as opposed to a "good" reference cheque by John Michel. Unfortunately, neither the grie~or's first or second .reference choices were available at the appropriate time. Selection board member Bonnie Lyle spoke with available reference sources prior to'the selection of the successful candidate on or before July 14. We accept Mr. Hanton's evidence in that regard, despite the discrepancy in the date (July 17) when Bonnie [yle allegedly spoke with'John Michel. The grievor did not benefit.'from a review of the most recent performance appraisal.dated April, 1986. In that-document, the ~rievor was §ivan a.competent performance rating.' However, the appraisal went on to state: "At times Mona's typing co~tains a considerable number' of erroFs. This seems due in part to. her heavy workload, an absence ofproof reading and a lack of concentration to detailed instructions. However, subsequent to discussions, Mona always shows improvement in her products." Obviously, the fact that there wis no recent performance appraisal on file did not assist the grievor. Mr. Hanton testified that he and other panelists were concerned by "inconsistencies" in work performance as revealed-by her'1986 performanc6 appraisal. A fresh appraisal may have alleviated that concern. On the other hand, there was no appraisal for Mrs. Ierullo because of her brief tenure with the Ministry. However, Mrs. Ierullol. bJnefited from the fact that her w~rk was known by two of the panelists. The Board is satisfied that the selection panel properly considered available reference checks and appraisals. There is no requirement that marks be assigned i'n either~ of those categories. The important fact is that they be properly considered by a selection panel, as they were in this case. Naving carefully reviewed all of the evidence, the Board ~s satisfied that the Employer properly concluded that ~here was no relative equality between the grievor a~d Rose .Ierullo. In these particular circumstances, the reference checks and the available appraisals combined with the marks, e~tablish a substantial difference between the two applicants. Clearly, the grievor is an experienced career secretary. Her lack of success in this compet~tiJn may be attributable at )east in part to the fact that. she had been ill immediately prior to the interview. 'A~ a competent employee, she should be encouraged to apply for a promotion in the future. In addition, she should have the-benefit of an up-to-date performance appraisal. For the above reasons, this grievance is dismissed. DATED at Brantford, Ontario, this R. L. VERITY, Q.C. - VICE-CHAIRPERSON G. MAJESKY - MEMBER M. O'TOOLE - MEMBER ~NIONNONINI~'DI~$~ It is .with considerable anger and frustration that I ~n ~riting this dissent, which w~ll no doub~ colour ~be ~nner and ~shion in ~hich I us~lly record my co~n~s. ~is~is csse where ~he ~rievor (~ddle' aged'/be~vy se~ women) applied ~or a job, and a recent new c~r (yo~g/attr~ctive) to the civil service got the job. ~t me begin by ~aring with the board ~ first impression of ~. ~nton as he is. the central, and in ~ opinion, the sin~lar ~use for Ms..Monna Wynn's unsuccessful application for the ~sition she applie~. ~..~nton ~s glib, al~f; and contrary to the mjority of the b~rd, did not strike ~-as a par~icularly professional a~nistrator. As co~sel for the ~ion expressed,' 'it is very difficult proving bias/fav~riti~, es~cially since there is usually no ~okiDg ~n". If this 'board would have look~ and-question~ the inconsistencies of this job competition, since much valuable evidence ~s present~, some deductive reasoning would have assisted the board in finding in favour of the grievor. ~at are the glaring problems in this case? There are mny, and the totality of these re~lted in a biased and impro~r job competition. ~& grievor in this case was the victim of'.an ancient ~rfomnce appraisal (P.A.) dating b~ck to 1986, and the substance of the P.A. indfcated that the grievor mde some typing errors, but that when this ~s brought to the attsntion of the grievor, she corrected any deficiencies in her work. ~at irks me is the fact that the bureaucracy did not in any. systemtic and re~lar fashion appraise the performnce of the grievor for three years. That's not her fault. Secondly, over the last ten years this nominee has participated in tri-parte se~nars where ~tario H~n Resources bureaucrates espouse the im~rtance of employee feedback vis-a-vis work performnce, and how mnagement is supposed to monitor and · coach employees through P.A. This appears to be nothing more than smoke and mirrors. As someone who has studied and practiced in the field of personnel, practitioners advise that P.A. should ideally be used bi-annually for a number of reasons. Some of.which are' to provide feed-back, monitor p~.rformance and establish performance targets for the future. As a board, we should have been very dubious of the merit of this out-dated P.A. Further, the successful ~pplicant (Rose Ierullo) did no~ have a P.A. on file as she had not been in the civil service long enough to have had one completed (less than six months). On this aspect of the competition alone there doesn't appear to be a'level playing field in that the grievor had a stale P.A. referred to, which in essence was relied upon by the interview committee, and Ms. Ierullo did ~ot have"a P.A. on file. After listening to the evidence, I~had t~e impression ~hat'in .the minds of two of the Interview Panel.Members (Santon and Robinson),-they already determined who would be'hired and went throggh the. charade of the'~ interv£ew process and had. the- results .conf6~n to their pre-determined expectations of who they wanted to work'~for them. In~ exhibit ~7, Ray. Hanton~s notes from the interview of . applicants, there are some. rather odd notations, which were asserted bY' employer counsel to be nothing more than "memory devices". For instance, Mr. Hanton uses terms like "slim, trim, accent" to describe different applicants. None of the other panel members needed these kind of memory devices to assist them in their evaluation. The crux of this case, after you strip away all the legal pretense, is that the older women didn't get the job~and the younger women did. Further, Mr. H~nton's'written comments certainly ~xpose his predilection for "slim and trim" applicants. These kinds of comments are offensive' and Hanton should learn some new memory devices like the applicants name, address, and social insurance number. What 'I find particularly galling about Hanton's strange vernacular, is that when I asked him what "trim" meant, he said, "it's a type of dress". Nembers of the board, within th~ context of the Queen's English, and Mr. Hanton's usage of other offensive memory device type language, I think the board caught a good glimpse of the favouritism union counsel (Mr. Law) was urging the board appreciate. Accordingly, the board should have not glossed over these remarks. REFERENCE CHECKS THE DIFFERENCE. The reference checks in this matter were als0 hastily compiled. The grievor had given three references for the committee to check. It appears that two of the three individuals were not available for comment. The third person was, and his remarks were favourable ie., good, fair, has requisite skills, etc. Ms. Ierullo, had one reference check within the civil Service, as she had been employed for only several mo~ths. Her reference check was good to very good. The problem 'I have with the reference checks is two-fold. Firstly, why didn't Bonnie Lyle obtain reference checks from Mrs. Ierullo's former employers~ In the same vein, why didn't Bonnie Lyle call back and obtain the grievor's reference checks that were absent the first time she ca/led. It appears that this was.~done h~stily,: .Ifone.were to ~ssess the p~_ocess of how these 'telephone Soil.citations Were.'conducted, one's impression might properly conclude 'that they were'-not particularly :important. SeCOndly, an~ 'th~s.brings ~emto 'a very seriouB concern, in tha~ confirmation letters went out to. the -successful candidates on July 14th, 1989, bur'-the reference check for th~ grievor was conducted on July 17th, 1989 (see Bonnie Lyle's notation exhibit #9). Members of the board,'we cannot suck and blow at the same.time. Either the"reference checks are important or'they are not. Don".t tell this member of the board that reference checks are impo=tant, 'and that they widen the gap between .the grievor and Ms. Ierullo, because in reality, a decision was made to hire Ms. Ierullo irrespective of the reference check. This brings me back to my comment that the mechanics of the process were adhered to; only superficially, as a decision was made to hire Ms. Ierullo before the reference check was conducted, for the'.grievor.. This kind of office politics is totally perverse, and for this board to acquiesce and skim over this detail is equally irresponsible. UNDERVALUING OF TYPING, ~IGIIE~ ~EIGHIt~ WOULD'HAVE NAILROWED I would like' to Point out to the board that the position description approximates that the job'entails 20% typing. The typing Component in the selection process was ranked at 15%. It would certainly be consistent to expect that there be some numerical uniformity vis-a-vis the weighing of this skill category. If ther~ was, the grievor would have fared better.. 3UCCE~3FULCAIiDIDATE FAILS THE TYPING TEST It is on the record that Ms. Ierullo failed the typing test. The grievor passed her typing test. What i find a little odd, is why the civil service hires secretaries who fail the typing test, or was Mr. Hanton looking for a secretary with other qualities, as opposed to an older women that was a competent career secretary? The majority of the board 'expressed empathy for Ms. IerullO when she' exclaimed that she performed poorly in the typing test because of her.unfamiliarity with the keyboard. It is this nominee's experience that it is a standard practice to let job applicants warm-up ie., ~0-i5 minutes before the timed drill. This may seem a little cruel, but, if one knows how to type, you_cope. I also wish the board to note that since the inception of the typewriter, the keyboard' configuration has not changed one iota. There is a standard spacing and sequence between all alpha/numeric keys. I will admit that function keys are an addition on computer keyboards, but Ms. Ierullo and all candidates used.a typewriter for the test. - DISPI{OPORTIONAL ~I(~II~ Although the point scoring process is a highly subjective. process and not a sc'lence, there are still some rudimentary rules of tht~mb for the practitioner. -This doctrine w~as .. enunciated in Bent (1733/86), OPSEU and Ninistry of Transportation, (B. ~'isher, I. Freedman, A. Stapleton), where to prevent scoring irregularity, the board said don't rate disproportionately, make the point Spectrum even. Counsel for the union argued that Mr. Hanton's scoring was irregular, and under exam-in-chief, ~r. Hanton admitted to a high-low .scoring system. This is akin to the arcane approach of pass/fail. This is a case which turns on favouritism, and ~r. Hanton's discrepancy or differential between Ierullo/Wynn gives rise to a compelling inference of favouritism. If we took out' Eanton's score, and compared it to the other panel'ists (who are unimpeached) there is a 69 differential. Thus, we would have had relative equality. What the majority of the board has done, is to accept Mr. Hanton's style of high/low marking, and rationalize he does it consistently~ That means being wrong consistently is'viewed acceptable by this board. To me that is a rather untenable proposition. SUmmARY When we examine the evidence, the flaws in the process, and 'the fact that the grievor possessed no fatal flaws,- though · there were areas of concern;, this board should have excluded Mr. Hanton's input from this process. There were enough inconsistencies and. genuine suspicion concerning Hanton"s motives to warrant his exclusion, given the~allegation of bias and favouritism.for Ms. Ierullo. In addition, when boards are constituted to hear in6idents of .... alleged bias/favouritism the experience is that these issues are very difficult to determine, as there is no admission.. For that reason, GSB boards must be willing to send a signal to management that favourltism'on the part of selection panel members will be met with their expulsion, re-run of the competition, a~d/or the grievor placed in the.position. To do- other~ise will further the status quo and alt the systemic prejudice: which exists against women, ethnic and visible minorities,~;. older, workers, as well 'as individuals with different lifestyles For the above 'reasons, I would have removed ~r, Ray Hanton's score' from the selection panel, found relative equality between ~s. Ierulio and-~-~. Wyn~ ,- add ' placed ~s,. Wynn in the Position · · Respectful ly -submitted by, ~ay 15th,'1990 ~P~L~, Ontario