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HomeMy WebLinkAbout1990-0764.Richard.90-11-02 ~ -' . .~ \ f!c:· ..... .J . ONTARIO fiMPLOYÉS DE LA COURONNE ;¡ , ' CROWN EMPL OYEES DE L 'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT ~ REGLEMENT BOARD DES GRIEFS . 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, MSG lZ8 TELEPHONEITÈLÉPHONE: (416) 326- 1388 180, RUE OUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), M5G lZ8 FACSIMILEITÉLÈCOPIE: (415) 325-1395 764/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCB SETTLEMENT BOARD BETWEEN OPSEU (Richard) Grievor - and-- The Crown in Right of ontario (Ministry of Culture & Communications). . Employer BEFORE: R. L. Kennedy Vice-Chairperson T. Browes-Bugden Member M. Tims Member FOR THE M. Bevan GRIEVOR Grievance Officer ontario PUblic service Employees Union FOR THE M.Failes EMPLOYER Counsel Winkler, Filion &'Wakely Barristers & Solicitors HEARING: October 17, 1990 '. ~ ., ~ - 2 - AWARD On February 28, 1990 the Employer posted an internal competition notice for the position of Financial Officer 2 in the Arts Branch, which competition had a closing date of March 14J 1990. There were four applicants for the positionJ one of whom was the Grievor. Under date March 26J 1990J the Employer advised the Grievor that, after a careful review of all applicànts,~he Branch had decided that it wished to extend the area of search to identify more '~andidates who met the requirements of the position. The letter then indicat ~d that the position would be readvertised in the future and that, if the Grievor wished to be considered for the readvertised competition; she should so advise the Employer. It may be noted that . at this stage there was no indication from the Employer that the Grievor was not considered as being qualified for the position for which she had applied. The Grievor subsequently filed a grievance alleging a violation of the collective agreement in that the Employer had cancelled the competition on the grounds that there were an inadequate number of applicants, notwithstanding that the Grievor was qualified for the position. The relief requested was that the Grievor be appointed to the position of Financial Officer 2 and ,compensated for the appropriate difference in salary to March 26) 1990. In :response to the grievance, the I I ,. ) ,~ ) -'" '" - 3 - Employer wrote to the Grievor stating that the competition had not been cancelled but would be readvertised once clearance had been given by the Human Resources , Secretariat's Redeployment Unit. The Grievor was advised that she would be considered along with other interested candidates that might apply, and again there was no suggestion that the Grievor lacked the qualifications for the job. At the outset of the hearing, counsel for the Employer advised the Board that the competition in question had been posted only within the Ministry and that there I had been four applications received. In a pre-screening process two of those applicants were considered to be margìnally qualified, and two of them; of whom the Grievor was one, were considered not to be qualified for the job. The Ministry was, therefore, not satisfied that' there was a qualified applicant and decided that there would have to be an extended area of search. However, at that point in time it appeared that there might be two employees entitled to the job by reason of the job security prov~sions of the' collective agreement, and the determination of that issue apparently took until about two weeks prior to the hearing of this grievance. The two employees involved did find jobs elsewhere, and therefore the job that was posted remains to be filled. It was the Employer's position that the Grievor was not qualified to be considered for the job and that the issue of the Gl'ievor's qualification was the principal issue to be determined on this arbitration. It was further agreed !~ / - 4 - by the Employer's counsel that the issue of the Grievor's qualification was, in fact, raised for the first time immediately prior to the hearing, It was the position of the U nioD that the Grievor was qualified for the position and that, once the position had been posted and a qualified person identified, the competition had to be completed. Since the Grievor was the only one who had grieved, it was argued that if she was qualified, she was entitled to be placed in the position. . The job in question is that of a Financial Officer 2: in the Arts Branch of the Culture Division of the Ministry. The job duties were described in dètail in the competition notice but in substance involved responsibility for financial control. within the Branch, budget and accounting functions and, of principal importance, responsibility for financial reporting and overseeing the administration of a number of grant programmes within the Branch. The Branch's main function is to provide funding for a large number of non-profit arts organizations. The specific qualifications for the position were set out in the competition notice in the following terms: Written; verbal, communication and mathematical skills; Experience with financial computer applications; Knowledge of Ministry financial management system and government accounting priorities; ~ J ) ~~ j I - 5 . Knowledge of MCC grants processing system and Ministry policies, practices and guidelines for grants administration; Good working knowledge of accounting principles and ability to assess audited financial statements submitted by non-profit arts groups; Good organization, working, planning and management skills; Ability to work und~r pressure, meet deadlines, work independently; Interest/knowledge of arts community. The Grievor at the time of the application was a Financial Officer 1 with the Ontario Heritage Foundation, a branch of the Ministry of Culture and Communications. The Grievor possesses an Advanced Accounting Certificate from Ryerson Polytechnical Institute and a Bachelors Degree from the University of Toronto. She has been in her ,present position since May of 1980 with responsibility ~ for financial administration, budgeting and financial controls within the Foundation. She also has responsibility for managing cash flow and maintalning the investment of excess c~h. She has involvement in the accounting aspects of grant programmes withiµ the Foundation, but no actual involvement in the determination of grant entitlement. She is, however, 'familiar with the procedures in that area within the Foundation. Prior to joining the Foundation, she spent seven years as an Audit . . Assistant in the Office of the Provincial Auditor and prior to that had experience outside of government in both business and with a firm of ' chartered accountants. ~ . . ~ - 6 - The applications for the position were screened in the first instance by a Senior Human Resources Consultant, who broke down into seven categories the qualifications listed on the competition notice, Each of those qualifications was then evaluated on a scale of zero to three, relying 8trictly on the written applications, résumés and supporting letters that had been received from the applicants. The analysis did not go beyond those written materials, and on each aspect of the qualifications three points were assigned if the applicant appeared to meet the criteria, two if the particular applicant's POssE!ssion of thE! qualifications was minimal, one if the applicant was below the required standard and zero if either the application did not indicate the possession or that qualific:ation, or the informatiòn . provided made it impossible to evaluate whether the candidate possessed the . qualification. On the first screening, the Grievor received 14 points out of a possible 21, with the other candidates receiving respectively 15, 18 and 16 points. In her oral evidence, the consultant expressed the view that the Grievor was marginally qualified. At the hearing, she was examined extensively on her marks assigned to the Grievor, but I do not propose to deal with that evidence in detail since the person actually making the screening decision did not rely on her evaluations. . The actual screening was done by Lin D~noghue, the Manager of Programme Administration in the Ministry. She is the person responsible for the administration ,~ J ~ - 7 - of the Arts Branch. She described the Financial Officer 2 position in some detail and emphasized that the most important part of the job was the grants 1l).anagement and administration. Next in importance was the monitoring of the financial control syste:rp.s within the department. In that regard, she highlighted that the most important qualifications as listed in the competition,notice were,knowledge of Ministry financial management system and government accounting prio~ities and knowledge of MCC grants processing system and Ministry policies, practices and guidelines for grants administration. She further expressed the view that a candi~ate who did not get a rr3" on the pre-screening with respect to knowledge in grants administration would not be consider~d for the job. She used the same, system to evaluate criteria as was used by the Human Resources Consultant, and she assigned the Grievor a score of 13. One other candidate received 13, and the two remaining candidates each received 16. In her evaluation she specifically , - assigned to the Grievor a ratin~ of 2 with respect to knowledge of Ministry financial management system and government accounting priorities and Itr in the area of knowledge of the grants system. With respect to the qualification of being able to work under pressure, meet deadlines and work independently, she assigned the Grievor a rating of zero. She was cross-examined extensively on those ratings, and again in making those ratings she relied strictly on the written résumés and supporting letters. With respect to her evaluation of the Grievor as "lit in the level e ( ï - 8 ,. of qualification relating to grants administrationt Ms. Donoghue indicated that she was looking for someone who understood the grants system 81ld who co~ld review and evaluate applications against the criteria and deal with the applicants. She indicated that the overall system within the Ministry for grants administration was- the same and that only the individual criteria and standards varied with respect to the various grant programmes. It was her view that the Grievorts writte'n material did not indicate the possession of thàt background. Shø did not consider the . Grievorts audit experience to be relevant, in that in her' view the audit function simply reviewed the receipts and expenses of the grant programmes without evaluating entitlement. She justiÑed her mark of "2t1 with respect to knowledge of Ministry financial management systems on the basis of her professed knowledge that the Ontario Heritage Foundation had different accounting systems and policies from the Ministry in that it managed its own cash. She felt that the letter and résumé provided by the Grievor did not contain any sp1t!cific references to familiarity with Ministry policies and practicest and her rationale was that the Grievor was only working in a branch, which was a separate system outside the Ministry. She explained her "zero" in ability to work under pressure and meet deadlines on the basis that the Grievor's application indicated ,that the Grievor was responsible only for quarterly reporting and that the application did not giv~ any description of the sorts of reports and deadlines with which the Grievor had to deal. She therefore I .. 1 " -~ . - 9 - felt that she did not have any information from which to, make any evaluation in this area. It is well established that an appropriate system of pre-screening to weed out unqualified applicants is quite proper ,and that the Employer does not have to ' interview each ·and every applicant for a posted position. Reference may be made to Balics 42/84 (Verity) and the cases therein cited. Specific reference is made in the Balics decision to the responsibility of the Grievor to set forth in the written application the qualifications and abilities that entitle that applicant to reach the interview 'stage of the competition. Hence, we, find nothing wrong in principle in the screening process used by the Employer. We have had the benefit of the Grièvor's oral testimony with respect to the matters covered in her résuméand in her supporting letter of application for the position, and while her evidence did, to, some extent, expand on matters covered in those written 'documents, we do not find anything in her spec~fic oral evidence that a fair reading of the written documents would not disclose. We readily aécept that an employee has an obligation to set out in the .written application sufficient informa~ion upon which the Employer can make a reasoned judgment as to whether or not that particular employee meets the specified qualifications. However, in turn, the Employer cannot read that letter with blinders and take the position that unless there is a black and white statement - !, . - 10 - that fits the language of the qualification, the applicant does not possess that qualification. The application must be given a fair read.ing, and th~ employee is entitled to assume that the Employer's representative has a reasonable knowledge of how the government service operates, such that prior e:lCperience within the government can be evaluated in relation to the q~alifications that are being sought. . Ms: Donoghue was apparently not prepared to go outside the specific language of the letter and assume that someone who had significimt financial responsibility in the Ontario Heritage Foundation and a number of prior years experience with the Provincial Auditor's Office would, on occasion, be required to work under pressure and would have to meet deadlines ~d work independently. However, she was . prepared to go outside the written letter and assume that, because of her knowledge that the Ontario Heritage Foundation managed its own cash, it therefore must have financial management systems and accounting priorities different from the government in general. The Grievor established in her evidence that that was not, in fact, the case and that the accounting systems and policies in place within the Foundation were consistent with government systems generally, with the added aspect of cash management. In her letter, the Grievor acknowledged quite candidly that her specific knowledge of the criteria and standards of the MCC grants p!ocessing system was limited, but she did not anticipate any difficulties in becoming familiar with the system, because she had had considerable practice in . -j ~ ) . . 11 - grant activities while working for the Provincial Auditor. Again, Ms. Donoghue was apparently prepared to assqme that that experience involved only the mathematical checking of receipts and disbursements rather than any analy~is as to whether the criteria and standards of the particular grant programme had been met in making the grant. The G~ievor's evidence made it clear that indeed the audit function did review the grant process itself and not just the resulting accounting entries, and in any event, one would expect a senior manager to understand the audit process within the Provincial Government to a sufficient extent to know that the audit encompassed not only mathematical accuracy; but adherence to programme criteria . and standards. In our view, a fair reading of the Grievor's application would ,have 'resulted in the conclusion that the Grievor met the criteria of qualification on the two headings which Ms. Donoghue said were the crucial ones in determining the appropriateness of candidates for this particular job. We would also conclude that, on the basis of her application and supporting material, the Grievor has made out a prima facie case of being qualified to be considered for the job. It is, therefore, our conclusion that in the context of the screening, process ùsed by the Employer, the Grievor was improperly screened C!ut and denied the opportunity to proceed to an interview and be involved in the job competition. That being said, however, we do not think it follows that the Grievor can be put into the ~ . - 12 - job at this stage. Under the collective agreement, it is a competition clause among applicants, and seniority is the governing factor only where other factors are relatively equal. Accordingly, while we have no problem finding on the evidence that the Grievor was improperly screened out of this competition at its initial stage, we cannot reach the next step that she is, in fact, eithE!r the most qualified for the job or the best of the available candidates. We do not think that the absence of grievances on the part of the other candidates excuses us from giving consideration to them. While they did not grieve, they refrained from doing so under the anticipation that the position was going to be reposted and that they would at that . time be considered for the job. The authorities would indicate rather strongly that the Ministry's procedure of atte~pting to repost the position was incorrect if, in fact, a qualified candidate did come forward on the original posting. Reference may be made to Marks, 566/80 (Weatherill) and Chittle, 278/80 (Verity). Accordingly, we think that the appropriate disposition of this matter is to make a: finding that the. Grievor was improperly screened out and prevented from proceeding with the competition and to direct that the Employer proceed 'Ylith the original competition on the basis of the applicants who responded at that ti.me. We do not think that the ,argument that only those who grieve should be involvE~d in the new competition is applicable here. That type of argument is appropriate only where there has been a competition and those who have not grieved may reasonably be taken to have been - ,j , " ) \ ~.Q 1 - 13 - content with the result at least to the extent that they were not selected, On the facts before us, we believe that those other employees still have the reasonable expectation that they will be considered when a competition is actually held. We ,will remain seized to deal with any matter relating to the implementation of this award should the parties not be able to agree. . ,DATED this 8th day of November, 1990. Ross L. Kennedy, Vice - Chairperson J$~¡¡¡[JrL T.' Browes-BugdenO.ember II I DISSENT" (Partial dissent) M. Tims, Member . , - l, - . '- , IN 'lB2 MATTIJt 0' All ARBI'1'J!tATIOB , tJIIDlIR TJIB CRONR IMPLODES' COLLBCTIVB EW1:GAIlfIJIG AO'l' BUOD TBB GRIBVA1ICI 81TrLZM1lft BOARD SBTNBq: . OPSBU (Richard) Grie\'or -Cld- The Crown in tight of Ont8Z'10 (N1n1.t~y ot, CUl~. aDd Co..~~1c.~ioD8J "ployel" Wr:r aT. DÁ-88111'1' I agree with my colleagues that the screening process used by the Employer in assessing the Griever's qualifications tor the position ef r.1nanc:1al Ott1eer 2 was flawed. None-theless, despite the problema 1nhllrent in the process, I believe that the Employer's ccnc~lue1on that the Grievor was unqua11f1eå for the position sought wae a reasonatJle one tnat should not btt 41sturbed. The Employer's undisputed evidence was that the management and administration of grants constituted the moat importilnt part ot the job J~espons1bi11ties in question. Ms. Donoghue ga~'. uncha.llenged testimony that the incumbent in the position had to provide direction to staff in thes.. areas. I '.. . ], ,) '~ - 2 - . The Grievor's letter of application ,anå resume frankly acknowl~åged that her experience in grants administration was Illimiteå.n She testified at the hearing that her relevant experience was I essentially of two types. first, she referred to the ,physical proximity of her desk in her current office to the desks of those responsible for grants administration for the Ontario Heritage Foundation. She 'agreeå, howeve%l, that she þerself was not in any way responsible tor administering O~ managing grant applications. Second, the Grievor reterred to her experience in the 1970·9 as an Audit Aasietant tor the Otfice of . the Provincial Auditor. Again, . however, it was clear that her role included only the review of the grant process itself. She had no involvement in its first hand administration. . , Accordingly, in my view. the Union failed to prove that the Employer's assessment of the Gri.ever's qualifications for the position in question was unreasonable. I would theretore have dismissed the grievance. Given the,majer1tydee1sion to allow the grievance, however, I w1an to comment on the issue of remedy. I agree ,the. t the· proper remedy unde¡'l the circumstances, given that the grievance ha. been successful, ill to direct the Employer to proceed with the competition on the basis at all ot' the applicants who initially responded to the posting. ,..... l, . " I ... 3 - I share the Cha1rmanls view that it would not 'be appropriate to actually award the position to the Grievor. The Chairman, however, distinguishes this ease from those where non-grieving applicants Illay reasonably be understood to be content with the result of a selection process. In the lat~~.Z" circumstances, the Ohairman suggests that it may ~e appropriate to limit the %Ie-run compet1..tion to those applicants who grieved the initial outcome. While it i8 not necossary for this Board to determine that issue here. I wish to 'note that I resll1ecttul1y disagree with the Chairman. I do not bel~eve that the failure of applicants to grieve the ou~çome gf a . job competi t ion in i bu~lt conteJ~. upon the Board the jurisdicat10n to usurp management's right and respon.s1bil1ty to a...ss the retlative merits ot candidates for a position. Dated'at Toronto on d f>i"' day of November 1990. IYJ. '1'c-:. Mary Lou Time