HomeMy WebLinkAbout1989-1206.Riddock.90-10-25'..'- ONTARIO EMPLOY~_S DE LA COURONNE
· '' CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE CQMMISSlON DE
SE'n'LEMENT REGLEMENT
BOARD. DES GRIEFS
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1206/89
IN THE MATTER OF ~N ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIV~ BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Riddock)
-Grievor
- and -
The crown in Right' of Ontario
(Ministry of Correctional Services)
Employer
BEFORE: J.E. Emrich .Vice-Chairperson G. Majesky Member
F. Collict' Member
FOR THE M. Bevan
GRiEVOR Grievance officer
Ontario Public Service Employees
Union
FOR THE G. Lee
EMPLOYER Senior Staff Relations officer
Staff Relations Branch
Ministry of correctional Services
HEARING: February 9, 1990
The grievor claims that he was improperly denied a promotion to the
position of Provincial Bailiff I at the Thunder Bay Correctional Centre. By
way of relief, the grievor seeks to be awarded t~e position with
compensation, seniority and ot~er benefits effective from the date the
position was filled following the competition. In tM alternative, the
grievor as~s t~at the competition be rerun ~ecause of flaws in the process
whereby candidates were evaluated for the position.
On July 4, 1989, the ~ployer posted two vacancies for the posi'$ion of
Provincial Bailiff £ at the ~nunder Bay Correctional Centre. The 3o0
posting set forth the requirements and qualifications required for the SoD:
The 'successful candidate will 0e responsiOle for the
safe, secure transportation of provincial, federal, and
remand male and female inmates/young offenders
throughout the NortHern Region with occasional out of
Province transfers, Dy road and air. Other duties will
include:' liaising with receiving and maintaining
security at ali times; t~ansferring federal inmates for :.
court appearance; suOmit~ing reports to the Manager,
Program Support and Coordination on all incidents and
unusual occurrences.
Qualifications
significant experience as a Correctional Officer 2
solid background in security practices and procedures,
normally acquired through several years experience and
exposure to escort duties and transferring of in~ates/
young offenders; valid Ontario Driver's License and
acceptable driving records; good report writing skills;
accep6aOle attendance and wor~ record; willingness and
aOilit¥ to ~ravet extensively ~nroug~out Ontario on
trips of up to four days duration; knowledge of various
~arrants required by legislation.
There were four applicants for the position: ~r. Barry RiddocK, the
grievor, whose service date is August 20, 1973; Mr. Greg Arnold, wh6se
service date is DecemOer 28, 1983; Mr. Jonn PeremesKo, ~hose service date is
1
October 15, 19B4; and Mr. Robert Dalton, whose service date is April 29,
1985. Mr. Arnold and ~. Dalton were selected as t~e successful candidates
in this competition and were placed in the position of Provincial Bailiff
effective Monday, A~gust 28, ~989.
The Board was advised that interested third parties had been notified
of t~s hearing m~d of their righ~ to participate. Mr. Arnold and Mr.
Daltc~ were preseng and accorded ~e opportunity to participate as t.hey saw
fit. Mr- Peremes~. o did not attend and the Board was advised that he had Hot
grieved the Employer's decision not to select him for the position.
The relevant provision of the collective agreement is Article 4.3,
~hic~ sets up a competition among the qualified candidates for a posted
vacancy:
4.3 In Ellling a vacancy, the Employer shall give
primary consideration to qualifications and a~ility
to perform t~e required d~ties. Where
qualifications and ability are relatively equal,
length of continuous service shall Oe a
consideration.
The Board b_a~ articulated many times what is needed to fulfill the
Pequirem~nts of Article 4.3. Cited to the Board were the decisions in Poole
2508/87 and Mare~k 414/83, Oo~h panels chaired by Mr. Samuels, in which the
following obser~vations are made at p.3 and 5 respectively:
The Ourisprudence of this Board has estaOlishad various
criteria Oy 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 add~ess these relevant quali£ica~ions
insofar as is possible. For example, interview
2
questions and evaluation forms s~ould cover all
the qualifications.
3. Irrelevant factors should not be considered.
4. All the members of a selection com~ittee should
review tb~ 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 systematic
way concerning all the applicants.
See P~mar~, 149/77; ~inn., 9/78; Hoffman, 22/79;
Ellsw°rth et al., ~61--/-~ and Cros_~s, 359/81.
The Union contended t~at the grievor was relatively equal to t~e
incumbent Mr. A~nold in ~is qualifications and ability to perform the
required duties of the position, and as the more senio~ candidate, M~.
Riddoc~ ought to have been awarded one of the two positions as Provincial
Bailiff.' In the alternative, the Union maintained that there were
signific~t flaws in the'competition and on that basis, the competition
should be rer~.
The candidates were interviewed by a selection p~nel comprised of Mr.
Neal Harvey, who held the position of Provincial Coordinato~ for Offender
Classification at ~he time of the competition, Mr. Lionel Chevrier,
Superintendent of the Th~der Bay Correctional Centre, and Mr. John
MacKenzie. Evidence on Dehalf of the Employer was given Dy Mr. Harvey and
M~. Chewier. These panel members indicated that each of the candidates
were interviewed using the same interview format, their attendance records
were checked, the most recent performance appraisal reviewed, and the
personnel file was checked for any notations of discipline. The results of
the interviews held on August 3, 1989 yielded sco~es of~ 216 fo~ the grievo~,
249 for Mr. Arnold, and ~1 for Mr. Dalton. Mr. Peremesko's score was lower
t~an tbs grievor' s. The scores were out of a total possiOle score of 324 on
tbs entire questionnaire.
Messrs. Harvey and C~vrier indicated that they selected Mr. Arnold in
preference to the grievor primarily ~ecause Mr. Arnold's attendance record
of ? days on 6 occasions 'during the relevant t~.._~e_- period Of one year prior
to the interview (from August, 1988 to July, 1989) was better than the
grlevor's record of.l? days of absence on 12 oc6asions. Both Mr. Chevrigr
and Mr. Harvey indicated that there was not a demonstrable margin of
difference between tbs grievor and Mr. Arnold on all the other relevant
qualifications and aOilities required of the position, except for the
factor of reliable attendance. The selection panel members indicated that
they would nave preferred to select 'a candidate whose aosenSeeism record was
lower than the institutional average for the posted position, r Nonetheless,
although Mr. Arnold's record of ? days on 6 occasions was not exceptionally
good, it was better than the grievo~' s.
Several weaknesses in the methods of scoring and assessment were
uncovered by the Union in cross-examination of Mr. Harvey and Mr. Chevrier.
These wea~neases were the following:
a) P~ing t~ grievor's e~p~., riemce aC 5/10 em questl~ #1~ of t~e
interwiew.
Neither Mr. Chevrier nor Mr. Harvey could explain the point spread
used for rating experience or how they arrived at the figure 5 in rating
grievor. When questioned closely concerning the grievor's performa~.ce
appraisal for the period July '8~ to July '88, in whic~ his performance was
4
rated as "consistently exceptional", Mr. Chevrier could not explain what
would be needed to be assigned a 10/10 on t~is factor, ar how the figure 5
was arrived at for the grievor, since during this time frame the grievor had
wor~ed for 20 months on a secondment in the position of Provincial Bailiff.
Mr. Harvey, when questioned, admitted that the grievor ought to have been
rated at 10 for experience on questlcn 15, rather than 5.
On review of this factor, if the grievor had Oeen accorded an extra 15
points to D_ts total score (five extra points from each interviewer on thi~
factor) his score would be 231, compared't6 249 for Mr. Arnold. Both Mr.
Harvey and Mr. Chevrier admitted that the grievor was relatively equal on
all relevant factors except for attendance. Thus, although there was an
error in the scoring of the grievor on th. ts factor end altaougn the rating
system for t~is factor re~ained unexplained, this factor is collateral to
the major point of distinction between the candidates upon which the ·
Employer relied..
b. Atte~ - Weight Given Te Th~s Factor
It was estaD~ished in evidence that from August 1988 to July 1989, the
grievor was absent from work 17 days on 12 occasions. The Union sought to
show that th~ ~mployer had acted ~mproperly Dy rating attendance in the
interview and ~hen, after comparing the interview scores, weighing
attendance again on review of attendance records to distinguish between the
grievor and Mr. Arnold. The Union contended that the rating system was
inequitaOle 0y according disproportionate weight to the factor of
attendance.
The attendance records of ttm grievor and Mr. Arnold were filed in
evidence and the grievor testified concerning his aDsenteeism over the past
few years as well.. This evidence established that for the calendar year of
1989, the grievor was absent 23 days on 9 occasions. The grievor explained
that he was hospitalized with influenza for ? working days over a 13 day
period in February, 1989'." In 1988, the grievor was absent only 3.5 days
during the period he was seconded to the Provincial Bailiff position.
Indeed, his supervisor notes in his performance appraisal for the period ~
from July, 1987 to July, 1988 that "Mr. Riddock's attendance since taking
the Assistant Bailiff's position is well below the institutional average".
The grievor indicated that in 1986 he was absent for approximately one year
because of a saotgun accident. In 1985, the grievor was placed On
"mandatory medical" Dy reason of absences totalling approximately'IT days.
In 1984, he was absent 12 days on 12 occasions.
· Placed before the Board was the award of another panel of the Board
chaired Dy Vice-Chairperson Verity 592/83 concerning a grievance brought'by
Mr. Rlddoc~ at that time claiming that he had been improperly denied an
interview for the position of Senior Duty Officer at th~ ihunder Bay
Correctional Centre. At. p.6, the Board reviewed the employer's evidence
that for the calendar year 1981 the grievor was absent 48 days and in 1982
he was aOsent 51.5 days. At p.9 of the award, the Board concluded that in
the spring and summer ,of 1983, the employe~ had reasonaOle grounds ko
conclude that the grievor's "generally unacceptable absenteeism record would
likely continue in the future".
Althoug~ the selection panel in the case before us based its d~cision
primarily on the most recent period of ome year prior ~o the interview, i~
6
is clear that a review of the grievor's file and previous records o£
attendanca ~ould have revealed that the grievor has had a long-standing
problem with absenteeism with the exception of the time he spent acting in
the position of Provincial Bailiff in 19~'7-88.
T~e Board is not prepared to find that the selection panel should have
been precluded from review'i~lg snd considering the grie¥or's attendance
record beyond the period, or in addition to the period, scored in the
interview questionnaire. If t~a ~eco~d of ~ttendsnce over a longer period-
had establls~ed the period from August 1988 to July 1989 as aberrant to an
otbmrwise good record, then in a situation such as this w~ere the candidates
are relatively equal on all ot~er factors, the weight ascribed to attendance
would be less decisive; indeed, in such a scenario, the w~ole of the
evidence would favour the grievor's entitlemen~t.
As was indicated in the previous Riddock decision 592/83 a~ p.9, and in
the award of ¥ice-Onairperson Draper in OLBEU (Glysins~ie) and-LCBO (42/81
& 107/81) at p.8, attendance has been held ~o be a proper consideration in a
~oO co,petition if regular attendance is reasonably required to discharge
the responsibilities of the position. The evidence before this Board was
clear Shat regular attendance is c~itical to carrying out the
responsibilities of t~e Provinc~ial Bailiff position which entails the
t~ansfer of offenders ove~ long distances on a regular basis. If a bailiff
ObOEs off sick, a replacement must be found at some inconvenience throug~
overtime assignment of another bailiff or through scheduling of a casual
employee, usually classified as a Co~rectionai Officer. if the absent
employee returns wb_ile the others are on assignment fo~ a transfer, such
7
person is redundant. Furthermore, the position of Provincial Bailiff
entails additional trainin~ concernin~ the secure transfer of prisoners.
Thus, having to resort to untrained casual employees to replace an absent
bailiff entails a greater security risk. Accordingly, the Board finds that
the Employer was not acting unreasonably in ascribing considerable weight to
the factor of attendance-f/~ this competition. -
Having said t~at, the Board is not unmindful that Mr. Bevan poi. nted out
.certain apparent inequities in t~e rating system for both experience and.
attendance in question 13 of t~e interview questionnaire. He noted t~at if
Mr. Arnold's absence on August 18th had been considered, he would have been
absent on more than 6 occasions and earned the same mark as the grievor on
this factor. On this view, the grievor should have scored 231 with an extra
15 points for experie,~e, and Mr. Arnold saould have scored 23'7 with points
deducted for absenteeism on the 18th of August, after the interview was
held. Tb~ significance, of t~e inte.rview score o~ attendance is best
considered in the context of the incumbent's record of attendance over a
longer time frame.
A review of Mr. Arnold's record of 1988 and 1989 reveals that he was
aDsent ~ days on 6 occasions for the calend_~? year 1988, and 7 days on 7 .
occasim3s in the'calendar year 1989. The employer's witnesses were not aOle
to give figures as to what the relevan~ institutional absenteeism rates for
the same time frame were. ~{owever, even in the absence of such helpful
information, the Board cannot find that the grievor's absenteeism rate was
relatively equal to that of Mr. Arnold. Nor is the Board prepared to find
on the evidence before us that t~e Employer relied upon findings or'
processes so flawed that its conclusion that the grievor was not relatively
8 -
equal to Mr. Arnold on the criterion of regular attendance should be set
aside.
c. Consensus Scorin~
In OPS~J (D. Bent). and Ministry of Transportation and Communications
1'733/86, a panel of the Board che/red by Vice-Chairperson Fisher had cause
to comment on the deficiencies of consensus scoring. At pp.l-3, the Board
elaDorates on the problems inherent in such a technique:
There was a typical selection committee of th. tee people,
two with technical ~nowledge of the job in question and
c~e H~_~n Resource person with apparently little or no
technical knowledge. The evidence is that each member
made a preliminary scoring of each question and then
when the interview was finished they compared t~eir
individual scores. The evidence was also clear that
each of them ~ad the same score for each question and
that this was achieved as a result of consensus scoring.'
The term "consensus scoring" means that the three
'memDers of the selection panel discussed and ultimately
agreed on a score for each individual question. This
Board finds that the method of consensus scoring is .
inappropriate and s~ould not be continued by this or any
other Ministry in the selection process. The p~pose of
havin~ three individuals on a selection committee is
presumaDly so that each person can bring their own input
into the decision making process. A consensus method of
scoring means that the parties must agree on the scoring
for each question and that raises the spectre of either
a majority of two overruling the third person each time
or a dominant memOer of ~he panel exercising his
superior position or knowledge over the other members.
Furthermore, it leads to the poasiDility that there
would be "horse-trading" between selection co~nittee
memDers. For example, a committee member could agree to
a certain s6oring on one question in exchange for
another co~ittee member changing his position on
another question. There is in this Board's opinion, no
advantage at all in consensus scoring over individual
scoring. An issue was raised with respect to an
advantage of consensus scoring in that it allow a member ·
of the selection committee lack~ing technical ~nowledge,
li~e a Human Resource person, tO get the benefit of the
superior technical knowledge of the other panel members
9
which would not De available in an individual scoring
system. However, even in an individual sco~ing system,
the selection committee members could quite properly
discuss their individual view points and as~ questions
of each ocher, however, when it comes down to the actual
scoring,, each mender of the selection committee must put
down his own opinion without the necessity of reaching a
consensus. Therefore, this Board would envisage a free
and lively discussion among the selection committee
memOers Defore individual scoring was exercised but
ultimately, the ~emDer must score the candidate as he
deems fit ~nd not so as to please the other members of
the sele¢$ion committee. If this open approach is taken
it would allow the less technically competent member of
the selection committee to hear the views of his
colleagues but still exercise D_is own judgement when it
comes to scoring. Obviously, when a comparison is made
between the scores of individual claimants it is
appropriate and indeed proPer to average the scores of
the selection committee so that a proPer comparison can
be made. 15%is, however, does not in any way infringe
th~ right of the individual member on the selection
c __o~mi_.~tee to express b_is views, it ~ust means when you
compare i~ ~o other a~plicant's scores, the effect of a
mir~ority posi~tion will be diluted which is perfectly
proper.
In the Bent case (1733/86), the evidence was clear tb~t the selection
panel members had adopted consensus scoring as a technique. In the instan~
case, in cross-examination, Mr. Chevrier resp~lded to questions concerning
this ms-.follows:
Q. · After emcn competition, did the panel discuss the marks?
A. Yes - for each cae - in case someone missed something.
Q. So t~e scores are the same Decause you discussed it
together and decided on a score for that candidate?
A. Yes.
This point was not addressed in the questioning of Mr. Harvey. Although Mr.
Chevrier's responses could be construed as consensus marking, it is apparent
that he may have been responding to a method of discussing the responses
10
given by each candidate to the particular questicas so as to exchange full
information, end not necessarily 'go reach agreement on the score ascribed.
A review of t~e interview doc,_~nts and summary sheet indicates a great deal
of similarity for the scores of Mr. Arnold mud Mm. Dalton, but not the same
uniformity in sooting fo~ t~e other two candidates, particularly by panel
member MacKenzie. Tt~ evidence at least conjures up the appearance of
consensus scoring and for t~e reasons set forth in the Bent case, the Board
would find that such a method constitutes a defect in the interview process.
d. Failure to ~tact ~ervisors ,
Finally, ~Hr. Harvey indicted t~ t~ ~lecti~ p~el did no~ contac~
t~ o~~es' s~visors for ~ op~ion ~ to t~ ~plic~ts' ~ility.
~ t~ grievor's o~e, ~re w~ a recent ~fo~ce ~p~l av~lable
~d th~ s~ re~ for not c~tac~ ~s s~ervisor. However, there was
not a feint ~rfo~ ~praisal av~lable fo~ ~. ~nold, ~d the
~loye~ cn~e to r~ly ~ ~. ~nold's perfo~ce ~prais~ fop t~ period
~ce~r 1~ to ~~r 1~?. ~s ~pr~sal is c~~le to t~
grievor's ~ t~t Doth t~ grievor ~d
"co~igtently excepti~al" except ~ to "~ess ~d deportment" both of w~ch
~e ~d "sati~actory". In or~r ~o eval~te t~ c~di~tes
syst~ti~lly ~d f~rly, it would ~ve ~en ~tter practi~
~nold's su~rviso~ fo~ ~ up~e on ~s eval~ti~, to ~viate t~
possibility t~t ~s ~rform~ce might ~ve ~teDiorated ~ a ye~'s ti~.
In summary then, tb~ Board has found some flaws in the process of the
selection: the grievor's prior experience and performance were undervalued;
there was not an update oDtained from Mr. Arnold's supervisor as to his'
performance in 1987-88; there may have been consensus scoring utilized by
the selection panel; the r~bing scale for experience and attendance was
unexplained; attendance appears to have been taken into consideration twice
- once in t~e interview scoring and once again upon s~Dsequent review Of the
candidates' attendance records. On t~e last point, the Board reiterates its
conclusion that the selectio~ panel's review of the attendance records was
not undertaken so am to vary the results of the interview score, but to
verify a difference on t~at factor found in the interview scot. es and to
place that time period in context of the employee's aOsenteeism rate over a
longer period, of time. The other flaws in the process are not so
significant, in light of the Employer's admission ~na~ the grievor was
relatively equal to Mr. Arnold in all other relevant aspects.
The Board has concluded in final analysis that there was a significant
difference upon which the Employer could properly rely in the grievor's
ability to provide regular attendance and Mr. Arnold's. The hospitalization
of the grievo~ in FeDruary 1989 for influenza is not the sor~ of illness
t~at could be thought of as non-recurrent, it is ironic, and no douDt
frustrating for the gr,ievor, that wb_ile he was seconded to the Provincial
Bailiff position, his attendance improved dramatically from previous years
and in comparison to D_ts suOsequent attendance. However, on the whole of
th~ evidence pertinen~ to this £acgor, the Board cannot find that it. was
~mproper or unreasonable of t~e ~nployer to conclude ir[ August, ~989 that
12 -
the grievor would not De able to provide as regular attendance for the
Provincial Bailiff position as would Mr. Arnold.
W~ile the point spread between the grievor and Mr. A~nold is no~ as
d~amatic as between t~e grievor and the incumbent in the Ben___~t case
the panel in th_ts case reaches a similar conclusion that despite a finding
that t~e selection process' Dad certain defects, the conclusion does not
necessarily follow t~at the grievo~ should be awarded the job or tba~ a re-
run of the competition should be held. At p.12, Vice-Chairperson Fisher
articulates the onus upon t~e Union in a case such as this in the following
marble r:
In ot~er words, 'if the Unic~ is aDle to snow t~at there
were procedural defects in the selectio~ process the~
they must show on the balance of probabi.lities that had
those de£ec~s not occurred, ~he grievor would De found
to be relatively equal.
In the instan~ case, the Employer has conceded the ~ievor's relative
equality on all relevant criteria except t~e pivotal oriterio~ of
demonstraDle regular a~tendanoe. The Board is satisfied on the evidence
before it, that even if the defects in process ~ad no~ occurred, a
significant and de~onstraDle di£fe~enoe remained between t~e grievor's
reco~d of absenteeism ~d Mr. Arnold's upon w~ioh th~ Employer was entitled
to rely in denying the g~ievor the position.
Therefore, the grievanoe~ is dismissed.
Dated at Kingston, Onta~£o, this 25th day of O~ober, 1990.
Jane ~. ~mrich Vice-Cnairpers°n
"I DISS~q~" (Dissent attached)
G. Majesky MemDe~
~. Collect Me,Der
B~ OPSRD (B. RIDOOCK)
- O~lld-
THE ~ IN ~ RiGIt~ OF 0~I0
(~nist~ o~ ~rr~ional ~r~ces)
1206/89
~ION N~ DI8S~
I have reviewed the award oi the ~jority in this ~ter, ~nd
must re~re~bly ~dv~se, ~ha~ I mus~ dissent. The award
iashioned in a ~nner, which on ~he surface woutd encourage
the union to believe ~hat they won ~ny of ~he ~rg~ents they
~dvanced. But, the iinal therefore be it resolved, ial]s
shor~, ~nd dis~sses the grievance. For ~his re~son, I would
like to revisit evidence we heard on Febr~ry 9~h, 1990.
Union counsel h~d established ~ny inconsistencies in ~he
methodology ~nd implementation oi ~he job
believe the ~w~rd correctly iden~ilies those deficiencies ie.,
methodology oi calculating ~bsenteeism, experience rasing,
~p~ar~nce o~ consensus ~coring, and I~2lure to con~act
supervisors. Additionally, union counsel brough~ to ligh~ the
l~x approach o~ contacting supervisors lot curren~ opinion oi
~he applicant's ability. ~is would appear ~o be in direc~
contravention oi GSB decisions in Pooie 2508/87 and ~rek
4~4/83, bo~h p~neIs chaired by Mr.~uels, in which~
iollowing observations are ~de at p.3 ~nd 5 respectiveIy:
5. The applicants' supervisors should be ~sked for
~heir evaluations .of ~he ~pplican~s .... "
It would app9ar that the panel making the selection neglected
to contact immediate supervisors for this information.
Frankly, this may not be seen to be fatal in itself, but,
within the context'of the other flaws, the totality of these
errors indicates overwhelmingly that the job competition was
flawed and biased.
The union also has another serious concern, since Mr. Riddock,
performed the very job he applied for during a one (1) year
secondment, the irony is he was denied the same job in this
job competition. I could well understand this board, in the
absence of knowing this fact, view Mr. Riddock ks an unknown
quantity. But, this board heard evidence that Mr. Riddock for
the period of one (1) year handled the job of Provincial
Bailiff, and according to the evidence performed the job in an
exemplary fashion. Mr. Riddock also had an
absenteeism rate well below the institutional average during
this time. Considering that absenteeism is asserted to be the
fatal flaw in the grievor's record, it certainly ~idn't become
a problem when he performed as a Provincial Bailiff. This is
relevant because the board muses in a hypothetical fashion and
contemplates on the ~mplications if a employee l~ike
Riddock, given his absenteeism history, were to obtain the
Provincial Bailiff position. We are led to believe that
convicts would run loose, the Ontario public would be left
vulnerable, and management in chaos, if Mr. Riddock were to
hold the Provincial Bailiff position. Frankly, that is
absurd. ~lr. Riddock performed this job, and we have as .the
uncontradicted evidence that he performed the job admirably .
What concerns me more, is that this'job competition rates
applicants on a number of aspects of job knowledge etc. The
selection panel also rates the attendance and reliabili%y of
employees by assigning a point value of ten (10) for
attendance. ~r. Riddock scored zero (0). Nr. Arnold scored
five (5) points. As union counsel pointed out, if we used a
slightly different time frame, Nr. Arnold would have also got
zero (0) points. The board should find no consolation in this
fact, because, ~r. Arnold'~ attendance was also well below the
acceptable institutional average. The proposition this board
makes is that there is a lesser of the two evil's, that is,
although Nr."' Arnold's attendance isn't acceptable,, it is
better than Nr. Riddock's.
As a board, we have as evidence the fact that attendance was
incorporated into the job competition questions. What this
hoard'has done, is to concur that, yes, there were faults in
the process; and in the final analysis allow the employer to
again use attendance as a veto to prevent ~r. Riddock from
obtaining the Provincial Bailiff position. This board has now
rendered impotent Article 4.S in the Collective Agreement by
allowing the employer to say we have "relative equality", but.
In trade u~ion circles >hat's a wessel option. In ot-~r
words, after we have ~established "relative equality", the
employer can have, a sober second review of the applicants,
and, s~ill find candidate x, y, and z deficient in any number
of the requirements set-out in a job specification. What this
means is that the employer can now double count any factor
rated in the Job competition. Tha$ is patently unfair. You
cannot rate and rank job applicants in the competition, and
later, selectively revisit aspects of applicants score ie.,
for attendance, and say that you wish to re-assess an
applicant, and veto the incumbent because the selection
comm/ttee wants to further penalize the applicant. Ny'comment
is that if the employer establishes a job competition format,
it should have integrity in that once the scores
applicants are ranked, we can determine numerically the
successful candidates. The present process doesn't work in
-3-
this fashion. Instead, The competition is performed,
incumbents are ranked, and the employer has a further
subjective opportunity to wash out applicants for attendance,
even though applicants have already been rated on this
criteria. This is nothing more than a veto, exercised by
management when they want to eliminate a applicant who they do
not want in the job.-- In condoning this practice, we have
given management a license to discriminate against applidants
who have been proven "relatively equal" in a job competition,
and can now be further re-assessed without fetter.
There is another component to this case, and aayone who is
familiar with Corrections Industrial Relations culture, can
surely appreciate this dynamic. Mr. Riddock had filed a
grievance in 1984 alleging that he was improperly denied an
opportunity to apply for a job because of excessive
absenteeism. This nominee certainly believe's that management
harboured in the back of their mind the fact that Mr. Riddock
would utilize the rights, he and the trade union have, to
represent him in challenging decisions of management. For
this reason, I believe management under the clever guise of
absenteeism, used this veto to punish Mr. Riddock because of
'his propensity to grieve. Knowing the management mentality in
Corrections, I certainly believe giving them the "veto option"
after determining "relative equality" under Article 4.3 of the
Collective Agreement, provides management .with a residual
right not enumerated in the Collective Agreement. This will
be used to discriminate against employees deemed undesirable.
Finally, if this were a perfect world, I could see this
inherent faith in trusting management to act in a reasonable
and fair manner. The only problem is that this is the
Corrections Ministry, and I have to date not witnessed any
"ray of hope" that says Corrections Management are
sophisticated enough to have greater management rights which
are not enshrined in the Collective Agreement. To give this
employer final veto, will surely invite further problems. I
suspect this award will ~ave grave implications in the long
term, which I can only hope will be vanquished by another
board who understand that the "veto option" is clearly not
fair, equitable nor contemplated in the Collective Agreement.
For the above reasons, I would have allowed the grievance.
Respectfully submitted by
FP LABOUR CONSULTAIIT ~ERVICF~
Gary Majesky
Union Nominee