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HomeMy WebLinkAbout1990-1320.Naraine.91-05-30 ., ONTARfO EMPL0 yts DE LA COUAONNE CAOWN EMPLOYEES DE L'ONTARfO 11111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARfO, M5G lZ8 TELEPHONE(T~LtPHONE: (416) 326-1188 180, AUE DUNDAS OUEST, BuREAU 2 rOO, TORONTO (ONTARIO). MSG lZ8 FACSIMILE(T~LÈCOPII: : {415} 326- 1396 1320/90 IN THE MATTER OF AN ARBITRATION Onder THB CROWN BKPLOYEES COLLECTIVE BARGAINING ACT Before THB GRIEVANCE SETTLEMENT BOARD BE'l'WEBN OPSEU (Naraine) Grievor - and - The Crown in Right of ontario (Ministry of Education) Employer BEFORE: s. stewart Vice-Chairperson J. Laniel Member D. Montrose Member lOR THE C. Dassios GRJ:BY:OR Counsel Gowling, Strathy & Henderson Barristers & Solictors FOR 'l'HB S. McDermott EMPLOYER Counsel Hick, Morley, Hamilton, Stewart, Storie Barristers & SOlicitors "' -. , DECISION ~ The grievor, Mr. N. Naraine, was emploY'3d by the Ontario Development.. Corporation as a Disbursement Portfolio Officer. By letter dated March 12, 1990 Mr. Naraine was advised that his position had been declared surplus. It is the Union's position that the Employer has violated Article 24.2.3 of the Collective Agreement by failin:;:r to assign Mr. Naraine to the position of Financial Consultant in the Transfer Payments Administration Unit of the Financial Services Branch of the Ministry of Education. The essence of the dispute between the parties is whether Mr. Naraine is qualified for this position. Ms. J~ Dell'Agnese, Manager of Transfer Payments Administration, testified that the position 'was created because of an increase in workload in her department. The position specifications state that the purpose of the position is: To evaluate the administration of both the Ministries of Education and Colleges and Universities transfer payment programs, 'which includes Federal-Provincial cost-recovery programs, to ensure that there is adequate accountability and financial control. To develop and supervise the implementation of systems and procedures to maximize the the economy and financial prudence of the transfer payment programs and do follow-up activities. To help administer the financial and accounting aspects of the ministry's responsibility for the teacherst pension accounts and the colleges and universities grant programs. The position is classified as Financial Officer 4. The , ¿ -- -, !- 2 duties of the position involve generally administering the system for the operation of the transfer payment programs, including matters such as reporting and interpreting financial information and consultation with senior personnel both inside and outside government. The qualifications for the position are set out in the position specifications as follows: Knowledge of financial and accounting theories, principles and practices, equivalent to having completed a professional accounting program (CGA, CMA, CA). Thorough knowledge of government accounting and central agency requirements. Demonstrated analytical and organizational ability. Sound judgement. Good communication and negotiating skills. Those qualifications are essentially those set out in the Opþortunity Bulletin for the position, published in Topical. The competition was frozen prior to its closing date of April 24, 1990 in order that persons whose positions had be~n declared surplus could be considered for the position. However, Mr. Naraine applied for the position on April 24, 1990, prior to being referred for an interview for the position as a result of his former position being declared surplus. In applying for the position Mr. Naraine provided a resume, along with a covering letter, detailing his experience. Mr. Naraine's resume and covering letter were not . " ; 3 reviewed by the interview panel in the course of their decision making process. The interview panEÜ consisted of Ms. Dell' Agnese, V. Goodall, Human Resources Consultant, and S. McDougall, Manager, Audit SE!rvices Bl~anch. Ms. Dell' Agnese, who was the only member of the interview panel who gave evidence in this proceeding, explained that the reason that this infonnation was not reviewE!d is that none of the applications submitted priol' to the freezing of the competition were forwarded to the i.nterview panel. Mr. Naraine's personnel file was also not revie\ored. References from his supervisors were not obtained. Seven employees who had been identified as surplus·were interviewed for this position. Three of those persons had greater seniority than Mr. Naraine. Howeve r, it was Ms. Dell'Agnese's evidence that none of the candidates with greater seniority than Mr. Naraine had the necessary professional qualifications for the position. Specifically, none of them had completed a professional . accounting program nor did they have the equivalent work experience. None of these persons filed a grievance as a result of the fact that they were not assigned to the position. The position remained unfilled at~ the time of the hearing. Mr. Naraine is a Certified Management Accountant. He I . ) ¿ ~. 4 received this designation in 1984. He has a diploma in Business Administration from Ryerson poly technical Institute where he majored in accounting and finance. At the time he was considered for the Financial Consultant position he had been a member of the Ontario public service for thirteen years. . Mr. Naraine was employed by the Ministry of Community and Social Services between August 1977 and March 1983 as a Financial System Analyst in the Accounts Branch. He was classified as a Clerk 5. He was responsible for the establishment and maintenance of management information systems andproc~dures relating to revenues and disbursements. He testified that it was necessary for him' , ' to review management board orders, minutes and executive council transfers as well as Ministry of Treasury and Economics policies in carrying out his duties. Hr. Naraine's responsiblity for the processing of information relating to payments included transfer payments. The management information system generated periodic reports which Mr. Naraine was responsible for distributing. Essentially, the reports advised agencies of their spending to date and the revenues available. Mr. Naraine stated that he would review financial information from previous years and he would highlight any patterns. If there had been overspending he would note such on the report. Mr. ~ - 5 Naraine was also involved in the establishment of an informa tion management system for recovery of federal subs idi es . In performing this function it 'was necessary for him to consult Treasury and Economics and internal COMSOC policies in order to determine the kinds of expenditures that were eligible for recovery., Mr. Naraine stated that he was also responsible for preparin9 financial reports to the Ministry of Treasury and Economics and that through that function became exposed to and knowledgeable about central agency requirements. Mr. Naraine was responsible for determining whether expenditures were eligible for recovery based on the information contained in the manuals. Mr. Naraine testified that the Employer required enrollment in a professional accounting èours'e (CA, CGA or CMA) for the performance of this job. Mr. Naraine commenced his employment with Ontario Development Corporation in 1983, at which time he was classified as a Financial Officer 1. When he commenced his employment he was in the insurance section ()f the Corporation where he was responsible for ensuring adequate security for loans. Mr. Naraine testified that he used his accounting skills in order to analyze finanoeial statements when assessing security for loans. He was in daily contact with clients and insurers, by telephone and in writing. Three years of professional accountant training was I · " r ~ 6 required for the performance of this job. Between October 1984 and May 1989 Mr. Naraine performed duties as a Disbursement Portfolio Officer, classified as a Financial Officer 2. He was involved in the administration of loans up to $50,000.00, which involved varied duties such as analyzing financial statements to ensure compliance with loan agreements, negotiating amendments to loan agreements, and the subrogation of one's security. He had involvement with accountants, lawyers, bank managers and clients. Mr. Naraine was responsible for recommending forgiveness of loans-and he stated that his recommendations to the Board in this regard were accepted 100% of the time. In this position Mr. Naraine administered at least 250 files at any particular time. At one time he was responsible for 340 files. In May, 1989 Mr. Naraine became classified as a Financial Officer 4. His duti~s remained the sarne except that he was responsible for the administration of loans up to $100,000. Mr. Naraine testified that four years of professional accountant training was required for persons performing the Financial Officer 2 duties. For persons performing the duties of the Financial Officer 4 classification it was required that the employee be a CA, CMA or CGA. ~ ! 7 Mr. Naraine's duties are outlined in a letter dated November 5, 1990 from Mr. M. St. Amant, ChiE~f Operating Officer of Ontario Development Corporation. In this letter Hr. Amant state~ that Mr. Naraine performed his duties "efficiently and effectively". Mr. Naraine is described as "a hard and dilligent worker". Mr. Naraine's qualifications were assessed on the basis of an interview and a written test. The int,erview and the written test were carried out on May 25, 1990. Ms. Delli Agnese testified that an overall mark o,f 60% was agreed upon by the-interview panel as a "passing mark" establishing the minimum qualifications requ:ired to perform the job. Out of a possible 235 points on the interview, Mr. Goodall gave the grievor 165 points (accounting for an addition error) which, on a percentage basis, is 70.2%. Mr. McDougall gave the grievor 139 points, 59 . 14% . Ms. Dell'Agnese gave the grievor 120 points, 51% . The average result is just over 60%. There was no issue taken with the relevance of the questions asked in the interview and their relationship to the qualifications for the position. One aspect of the evidence in regard to the interview, however, was Ms. Dell'Agnese's acknowledgement that question 10 was a very f ,j "- ~ 8 ~ significant question. This question required Mr. Naraine to name the Central Agencies and provide an explanation as to their roles within the government framework. Mr. McDougall gave the grievor a score of 10 and Mr.Goodall gave him a score of 12 out of a possible 15 points. Ms. Dell'Agnese gave him a score of 5. Ms. De11'Agnese's view was that the other members of the interview panel were simply wrong in giving him the score that they did with respect to this question. Howeve r, she acknowledged that there was a discussion with respect to the scores for this question and they remained unchanged. Ms; Dell'Agnese marked the ~ritten test herself. She gave the grievor a score of 30 out of a possible 80 points. She testified that after marking the test she discussed the results with the other members of the interview panel and . - that they agreed with her score. The test consisted of the preparation of a briefing note in a particular factual situation. Ms. Dell'Agnese's general criticism of Mr. Naraine1s performance on the test was that there was a lack of content in the answer. Specifically, she stated that lithe question was not addressed in the answerll., When the interview results are averaged and the results of the written test are taken into account, the grievor1s total score was 171.33 out of 315, or 54.39%. t . 9 It is clear from the long-standing jurisprudence of the Grievance Settlement Board tha't there W.:l.S a fundamental flaw in the process in this instance. The :~mployer relied on the interview and the results o:f the wri·tten test and did not have before it relevant information that it should have considered prior to making a decision as to Mr. Naraine's qualifications for the position. Ms. McDermott did not dispute the existence of a fundamen'tal flaw in the process. Howeve r, as previously noted, it :is the Employer's position that notwithstanding this fact, Mr. Naraine is not qualified for the position. After a careful review of the evidence a.nd the submissions of c0unsel, it is our conclusion that Mr. Naraine meets the minimum qualifications for the position in question. As noted in Hill & Campbell, 492/83 (Roberts), this is the issue in a determina'tion under Article 24.2.3 of the Collective Agreement." As a CMA, Mr. Naraine meets the professional requirements for the position. We cannot agree with Ms. McDerrno'tt I s submission that the evidence did not establish that Mr. Naraine had a thorough knowledge of government accounting and central agency requirements. While Ms. McDermott is correct that Mr. Naraine I s work at ODe involved dealing with accounting matters in the private sector, he had six Yl~ars of experience in the accounts branch of the Ministry of I d , \ ""1 10 Community and Social Services'where he was involved in matters directly relating to government accounting. He also had some direct involvement with transfer payments in this position. As well, Mr. Naraine had experience with central agency reporting requirements while in that position. While we note Ms. McDermott's reference to Mr. Naraine's classification at that time and her submission that his duties were of a clerical nature, we also note Mr. Naraine's uncontradicted evidence that the Employer required enrollment in professional accounting training for persons performing that work. This ma.tter, as well as Mr. Naraine's description of the duties he performed at that time, lead us to conclude that Mr. Naraine's duties in that position involved some judgement and responsibility that went beyond merely clerical duties. The other qualifications for the position are sound judgement, demonstrated analytical and organizational ability and good communication and negotiating skills. Mr. Naraine's detailed job duties and his performance in those duties are of critical significance in assessing his qualifications in these areas. This information was not before the interview panel because they did not consult his resume, his covering letter, his personnel file or his supervisors. Mr. Naraine's duties with the Ontario Development Corporation clearly required him to fulfill all ~ ~ 11 of these qualifications. His assignment to an increased level of financial responsibility suggests t,hat he must have been successful fulfilling those qualifications. The letter of recommendation from Mr. St. Amant confirms that he wa s . It is Ms. DelllAgnesels view that Mr. Naraine's perfonnance on the written test reflected inadequate communication and analytical skills. The wroitten guidelines for the scoring of the test appea.r to contemplate some generality in an acceptablE! response. One of the expec::tations is stated to be that thE! "candidate knows basically what a transfer payment is". A transfer payment is specifically defined in Mr. Narai.ne's test and there is no question as to the accuracy of his definition raised by Ms. DelllAgnese. While Mr. Naraine I s comments wi th respect to the establishment of a trans~fer payment program are quite general we cannot agree with Ms. Delli Agnese I s assessment that he did not answer the question asked. Given the terms of the genE!ral expectations of the test that are set out i~ writing, as well as the limitations of this particular form of assessment of qualifications, Ms. Dell'Agnese1s criticisms of his performance on the test do not cause us to doubt the adequacy of Mr. Narainels communication and analytical skills. ~ ; ) ~ 12 If the average scores on the interview were the only basis for the assessment of Mr. Naraine's qualifications he would have met the p_assing score. The written test, marked solely by Ms. DelllAgnese, reduced his overall score to below the 60% level. Aside from the issue of whether the test itself was fairly evaluated, the whole assessment process failed to take into account information that is of critical significance in the assessment of Mr. Naraine1s qualifications. Having reviewed the evidence of Mr. Naraine1s qualfications in relation to the qualifications for the position, we are compelled to conclude that he meets the minimum qualifications for the position. Accordingly, it is our conclusion that the Employer violated Article 24.2.3 in failing to assign Mr. Naraine to the Financial Consultant position. We cannot accept Ms. McDermottJs alternative submission that the appropriate remedy in this instance is an order requiring the Employer to re-interview the applicants with the appropriate directions in terms of the information that should be considered. The evidence is clear that the employees . interviewed that were senior to Mr. Naraine did not possess the qualification of a professional accountant or its equivalent. As Mr. Naraine was the senior qualified employee, he was entitled to be assigned to the position in I · i ¡ 13 accordance with Article 24.2.3 of the Collective Agreement. In the particular circumstances of this case it is our conclusion that his assignment to this position is the appropriate remedy. It is so ordered. Mr. Naraine is to be compensated for bis losses. We retain jurisdiction in the event of any difficulties arising between the parties in connection with the implementation of this decision. Dated at Toronto, this 30 day of May, 1991. /-, ~ ~~ II U ,t\,À" ~ S .L. Stewart - Vice---Chai~person J:cØdd _ Member ~ ~VJ " ~ 0;.-:.... D. C. Montrose - Member - " I \ -~ ONrARJO EMPLOYÉS DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT RÈGLEMENT BOARD DES GRIEFS ¡80 DUNDAS STREET WEST, swn 2100, TORONTO, ONTARIO, M5G lZB TELEF'HONEITEtÉPHONE: (416) 326-138B 180, RUE DUNDAS OUeST, BUREAU 2)00, TORONTO rONìARIO¡, MSO ¡Z8 FACSIMILEITEU£COPIE: (416) 326-1396 June 20, 1991 AKENDJœB'1' RE: 1320/90 OPSEU (Naraine). and the Crown in Right of Ontario (Ministry of Education) -------------------~----------------------------------- please remove the original cover page and replace it with the attached. Jdi4 . Joan Shirlow Registrar JSjdbg , Encl.