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HomeMy WebLinkAbout1991-1873.Lessel.93-07-05 ~ ONTARIO '" EMPL 0 YES OE'LA COURONNE ~' ~ ; '~ ' .. CROWNEMPLOYEE$ DEL'ONTARIO · ' 6.' ~.. : ~ GRIEVANCE C,OMMISSION DE SETTLEMENT ' REGLEMENT BOARD DES GRIEFS 180, RUE ~UNOAS OUEST, BUREAU2100, TORONTO [ONTARIO), MSG 18 7 3/9 IN THE MATTER OF AN~RBITRATION Under THE CROWN EMPLOYE~S COLLECTIVE B~RHAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD B~TW~EN -- OPSEU (Lessel) ., Hrievor - a~d - The Crown in Right of Ontario (Ministry of Correctional Services)~ Emplo2er BEFORE: S..Stewart· Vice-Chairperson E. Seymour Member D. Clark Member FOR THE M. Doyle UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers &Solicitors ~OR TEE J. Ravenscroft EMPLOYE~ Grievance Officer Ministry of Correctional Services FOR THE L. Kolomayz THIRD pARTY: J. Thompson HEARINH November 4, 1992 FebrUary 9 1993 DECISION . Ms. K. Lessel grieves the results of a competition for two positions of Records Clerk at Maplehurst Detention Centre. At the time of the grievance,' Ms. Lessel was a Records Clerk at Mimico Correctional Centre. She has held that position since April, 1989. Ms. Lessel's seniority ~date is April, 1985. The two positions were awarded to Mr. J. Thompson and~ Ms. L. Kolomayz. Both Mr. Thompson and Ms. Kolomayz were also employees of the Ministry of Correctional Services at the time of the competition. Ms. Kolomayz had been employed as a Records Clerk at Metro West DetentiOn Centre since September, 1989. Mr. Thompson had been .employed as a Records Clerk at Maplehurst in the position in issue here, for six months, just prior to the posting. Mr. Thompson has a seniority date of January, 1972 and Ms. Kolomayz has a seniority date of June, 1984. Both Mr. Thompson and Ms. KolomaYz were given notice of the hearing and of their right to participate in the proceedings. Ms. Kolomayz was present at both days of hearing and Mr. Thompson was present on' the second day of hearing. It is the position of the Union that there were a number of flaws in the selection process that are of such Significance that the Employer failed to fulfil its obligation to assess the qualifications of the candidates. It was the Union's further position that the.evidence before the Board established that the grievor was the.superior-candidate by a clear and demonstrable margin. Therefore, it was the Union's position that the Board ought to'direct that Ms. Lessel be placed in t~e position. Alternatively, the position of the Union was that the Board ought to direct that the competition be re-~un, with appropriate safeguards. It is the positio~ of the Employer that any defects in the Selection process are not of such seriousness that the Board 'should conclude that Ms. Lessel .ought to be placed in the position or that the competition ought to be re-run. It is the position of the Employer that on the basis of a fair and reasonable process the candidates were determined to be relatively equal and that the Employer acted in accordance with the provisions of the Collective Agreement in awarding the .positions to the'two senior applicants. As previously noted, the position in issue was for Records Clerk at Maplehurst Detention Centre. It was posted on June 26, 1991. The position was classified at the time as OAGT, however, it has been reclassified to OAGS. The responsibilities and. qualifications for the position are set out in the Opportunity Bulletin as follows: RESPONSIBILITIES: To provide clerical and administrative services pertaining to the inmate records in a detentioh centre and to perform other clerical duties as assigned. QUALIFICATIONS: Knowledge of office procedures, Familiarity with court documents. Ability to work with computer syste~m. Good communication and. inter-personal skills. Good mathematical skills. The Opportunity Bulletin goes on to request that employees provide their consent to allow access to their personnel file. The Opportunity Bulletin also indicates that applications were particularly encouraged from designated groups,including women. The competition was conducted by Ms. C Walmsley and Mr. J. Robertson. Ms. Walmsley is the Supervisor of Inmate Records at Maplehurst and has been in that position for about seven years. She is the supervisor of the positions in ~ssue. Mr. Robertson is the Office Manager at Maplehurst. His duties entail responsibility for all clerical and support services which includes inmate records. Mr. Robertson is Ms. Walmsley's supervisor. Typically, a member of Human Resources serves On comDetition panels and acts as chair. However, in this instance, no representative from Human Resources was available. As previously noted, Ms. Lessel has been employed at Mimico Correctional Centre as a Records Clerk since April, 1989. Between April, 1985 and APril, 1989 she was employed as a Correctional Officer at Metro West Detention Centre. Ms. Kolomayz has also been employed as a Correctional officer at Metro West Detention Centre, between ·June, 1984 and September, 1989, prior to commencing employment in the position of Records clerk at Metro West in September 1989. Mr. Thompson has worked in the position in issue here for six months, on secondment from his position as Personnel Clerk at Hamilton-Wentworth Detention Centre, a position he held since 19.88. Between 1975 and 1988, Mr. Thompson held the position of Manager, Inmate Records. In that position he was responsible for ~he operations of the inmate records office at the institution.and he supervised the work of six records clerks. He was employed as a Records Clerk at this institution between 1972 and 1975. Ms. Walmsley and Mr. Robertson testified that the resumes of the candidates and their covering letters were reviewed. The applicants were interviewed and scored on the basis of questions prepared by Ms. Walmsley. The questions related to matters such as procedures to be followed and substantive legal requirements in connection with the work of a records office.' Mr. Robertson and Ms. Walmsley' scored the candidates independently, however Mr. Robertson stated that they may have discussed the reason for discrepancies in scoring. He was unable to remember if there were any discrepancies in this competition. The results of the scoring were that Mr. Thompson was the highest ranking candidate with a total score of 170 out of a possible 208 points while Ms. Kolomayz and Ms. Lessel tied for second place, both with a score of 160. According to the evidence of both Mr. Robertson and Ms. Walmsley, reference checks were carried out on the top three candidates. However, no reference checks were carried out for · the other candidates. Mr. Robertson's recollection was that he carried out the reference checks for Mr. Thompson and Ms. Kolomayz while Ms. Walmsley carried out the reference check on Ms. Lessel. Mr. R°bertson stated that his usual practice is to keep notes~of those reference checks. However, he was unable to locate the notes of the reference che~ks in connection with this competition'. No review of personnel files for any of the candidates was conducted. Mr. Robertson stated that the reason that review of the personnel files was not undertaken was that there were "time constraints" on filling the position. The scores of the candidates were based entirely on the results of the interview. Ms. 'Walmsley stated that the level of mathematical skills required for the position is at the grade 10 or grade 12 level and that the skills essentially consisted of addition, subtraction, multiplication and division. AbOut 85% of the calculations can be performed by a computer, however~ the calculations are alwaYs checked manually. Ms. Walmsley stated that'there is "not really" any way of testing mathematical skills. She also referred to the time pressure of filling the position in connection with her evidence on this point. Ms. Walmsley. also stated that understanding the relevant formulae and applying mathematical skills in that context was the significant matter. There was a question on the test relating to the formula for a fine'and another asking the applicants to determine the release date in the case of a specific'factual situation. ~Applicants were asked about their computer experience and were scored on the basis of the number of years of computer experience that they had. However, the specific nature of their computer experience was not pursued i~ the interview questions. Applicants w~ere asked about their attendance record in the previous year and were scored on a range from no points for more than six dayS. of absence to six points for no days of absence' Ms. Lessel indicated that she had been absent seven days in the past year. Accordingly, Ms. Lessel was awarded no points for this answer. Ms. Lessel had been pregnant that previous year and she testified that her absences were attributable to her pregnancy. Ms. Lessel stated that she subsequently determined that she had been absent only five days the previous year. The reasons for absence was not a subject of enquiry and it was the Union's position that the question in this regard could not provide a realistic indication of the Iikelihood of Ms. Lessel's attendance in the future. In cross-examination Ms. Walmsley agreed that if absences Were related to a transitory condition such as pregnancy, it was not really an accurate indicator of future attendance. However, Ms. Lessel did have 11 1/2 days of absence in 1990. Mr. Robertson testified that notwithstanding the statement in the Opportunity Bulletin~to the effect that applications were 'particularly encouraged from certain groups, this position was not in fact designated as an employment equity position and accordingly, individuals in those groups of persons referred to were not accorded any advantage in the competition. The Union placed no reliance on this matter in ~rgument. The contents of the Personnel files'of Ms. Lessel, Ms. Kolomayz and Mr. Thompson were put before the Board. The information contained in the personnel files of Ms. Kolomayz and Ms. Lessel can generally be characterized as positive in nature. Mr~ ThompsOn's file contained reference to'certain instances~of counselling and discipline relating to his performance in positions of Supervisor of Inmate Records and Personnel Clerk. In particular, the Union referred to a report of an interview which took place on March 11, 1980 relating to a concern about key storage. There was a further record of an interview that took place on February 24, 1987 relating to an incident where an inmate was released early, an error which was attributable to a number of areas including an ineffective double checking system. Mr. Thompson testified that as manager he was held responsible for this incident and a new policy was implemented to deal with that situation. There was a record of a further interview on June 23, 1988 at which time Mr. Thompson was in a position of Personnel Clerk. The concern expressed in the memorandum relating to thi~ matter was that personnel documents were found in a disorganized manner. There is a further memorandum of February'15, 1990 which contains instructions with. respect to particular matters. Although it is not stated specifically as 'such in this memorandum there is some suggestion that there was concern about the manner in which Mr.. Thompson carried out his responsibilities. Mr. Th0mpson's fiI~ also contains a letter dated March 2, 1990 indicating that he was counselled with respect to an incident resulting in an overpayment in which he was considered to have been negligent in the performance of his duties. In a letter dated April 18, 1990 a four day suspension was imposed on Mr. Thompson in connection with failure "to prepare, complete or follow up on numerous'personnel matters". It was noted that in that letter that there were mitigating- factors including computerization and turnover ofL Staff that resulted in the situation. Both Ms.'Walmsley and. Mr. R0bertson indicated that they were aware that Mr. Thompson had experienced some difficulties in his previous positions. Ms. Walmsley testified that she was aware that he had "a few problems". She was uncertain as to what those problems were but thought that they were problems relating to deadlines. Mr. Robertson stated that as a result of his reference check hewas aware that Mr. Thompson "had difficulties" in his previous position. Mr.-Robertson's understanding of those difficulties was that Mr. Thompson had experienced problems with workload piling up. Both Ms. Walmsley and Mr. Robertson testified that the specific information contained in Mr. Thompson's personnel file would not. have compelled them to reach 'a different conclusion with respect to his qualifications for the position in issue. Ms. Walmsley noted that the position here is one that is closely supervised and that the responsibilities are different than those of Mr. Thompson'~ previous positions. Prior to the competition Mr. Thompson was seconded to Maplehurst Detention.Centre and performed the duties of the Records Clerk on .an acting basis. Ms. Walmsley testified that Mr. Thompson did not demonstrate any of the deficiencies in performance that had been the.subject of concern when he was working elsewhere in different positions. Article 4.3 of the Collective Agreement provides as follows: 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 Union challenged this competition on the basis that the candidates were not assessed on computer and mathematical skills, references were inappropriately limited to the top candidates, the question relating to attendance was irrelevant or, at best, did not provide a basis for any conclusion about future attendance and personnel files were not reviewed. Ms. Doyle argued that the competition was fundamentally flawed. On behalf of the Employer, Ms. Ravenscroft argued that the process was a fair and reasonable one. She emphasized that Mr. Thompson had outscored Ms. Lessel in the written test and argued 1_90 that even if there were flaws in the competition the Board could and ought to conclude that Mr. Thompson was at least relatively equal to Ms. Lessel. ~ While we agree with Ms. Doyle that the matters, of computer skills and mathematical skills could have been more deeply~ explored, we are unable to accept her submission that there has been a failure to assess the applicants in relation t° the basic requirements of the position to the extent'that the competition was fundamentally flawed. As previously noted, the applicants were asked about and assessed on the basis of their computer experience. As well, there was one question~ on the test which involved a simDle calculation in connection with knowing a formula and another question about a formula. We do not agree with the suggestion in Ms. Walmsley's evidence that it is difficult to test mathematical skills. In our view, this is the kind of skill that can be easily tested. However, we are not persuaded that there was a fundamental flaw in the competition in connection with this matter. With respect to the matter of attendance, we agree with Ms. Doyle's submission that the use of the past year's attendance record as a basis for determinin~ future attendance may have been of no real assistance in the case of the grievor. Notwithstanding this' matter, if the grie~o~'s attendance record for the previous year is taken into account, a year in which there was no suggestion that there were unusual circumstances, the grievor's Dosition is no better. As this Board has noted on many occasions, it is inappropriate for the employer to simply rely on interview scores .in determining relative skills and q~lifications of applicants while placing ho.weight on information as to actual job performance which can be obtained by ,reviewing personnel files and conducting reference checks. While our view might have been different if reference checks were carried out for all of the aPplicants interviewed, rather than only the top three candidates, we are of the view that the failure of the Employer to systematically gather information with respect to past job performance here is a matter of such significance that we are compelled to the Conclusion that the competition was fundamentally flawed. The Employer failed to obtain significant information, readily available to it, which it had specifically sought the authorization of the applicants to have access to. We have reviewed the decision of this Board in Ministry of Transportation & OPSEU (Polack), (Forbes-Roberts) referred to by Ms. Ravenscroft, where a failure to refer to the personnel files of the applicants Was not considered to be a fatal flaw. However, this' involved a situation where only one member of the selection panel was not aware of the contents of the personnel files rather than the situation at hand, where.the personnel files were not reviewed by any of the members of the selection panel. In other cases, for example, Ministry of Attorney General & OPSEU (Skagen & Glennitz) 1934/87 (Springate), the failure of the Employer to review personnel files is viewed as a very 12 significant matter. There was no suggestion that the~e was bad faith on the~part of the Employer in connection with this competition. The difficulties arising in this competition appear to have their source in the haste in which the position was to be filled. While operational considerations may require a position to be · filled quickly, this matter does not absolve the Employer.from its obligation to ensure that a thorough and full assessment of the candidates, including the very basic matter of reviewing personnel files, is undertaken, The failure of the Employer to comply with this obligation will inevitably result in challenges to the competition, with the very real possibility that the challenge will be successful. Any perceived gain to ~he Employer in' conducting the competition quickly is therefore without any ultimate benefit. We now turn to the issue of what result ought to flow from the Employer's failure to review personnel files in this case. In ~inistry of Transportation & OPSEU (Bent) 1733/86 (Fisher), a decision referred to us by Ms. Ravenscroft, the Board stated at p. 11 that: ".. it is not Sufficient for the Union to show that there were defects. They must go beyond this and show that the defects would have had some effect on the outcome". Ms. Ravenscroft submitted that any flaws in this instance did not result in the wrong applicant being chosen. While, as previously 'noted, it was the position of the Union that a proper assessment of the relative skills and qualifications of the applicant had not been undertaken,'it was the further position of the Union that 'there is sufficient evidence before the Board such that it could determine that Ms. Lessel was the Superior candidate and that she should be placed in the position. It was the Union's alternative submission' that a re-run should be ordered. In Some situations a flaw such as the one at hand may properly compel the conclusion that. a re-run is appropriate~ However, given the evidence before us and considering the positions of the parties in this case, it is our view that this is not a situation where a conclusion cannot be reached as to the merits of the dispute. Accordingly, we now turn to a consideration of whether the defect in this instance would have had some effect on the outcome. There is no basis upon which the information contaihed in~ the personnel files could have altered Ms. Lessel's position in relation to the position of Ms. Kolomayz and the issue is Ms. Lessel's position in relation to Mr. Thompson.~ Since Ms. Lessel had less seniority than Mr. Thompson, she is entitled to the position if her qualifications and abilities are substantially and demonstrably superior~to his. As previously note~, Mr. · Thompson scored higher than Ms. Lessel on the test. The critical matter in this case is whether the information contained ~in Mr. Thompson's personnel file, considered in light of the other relevant evidence as to the respective abilities and 1_~4 qualifications of Ms. Lessel and Mr. Thompson., ought properly compel the .conclusion that Ms, Lessel is the superior candidate. We agree with Ms. Doyle that the evidence of Ms. Walmsley and Mr. Robertson that ~hey would have reached the same conclusion as to Mr.s. Thompson's abilities and qualifications for the position even if they had been aware of the detailed contents of his personnel file is evideP~e that can be given little weight. However, our own assessment of this evidence, considered in light of the other relevant evidence, is that it does not compel the conclusion that Ms. Lessel is the superior candidate. The difficulties that Mr. Thompson experienced in the past that are detailed in his personnel file deal with his work in different positions where he functioned with greater independence. In the position in issue here there is direct, ongoing supervision. There are some similarities in the. requirements of Mr. Thompson's past positions and this position such that the concerns about his performance in the past cannot be viewed as having no significance. However, the higher degree of direct supervision in this position must be seen as a matter which lessens the significance of these concerns about Mr. Thompson's past performance. This evidence must also ~e considered in light of other relevant information, particularly his experience in the pas~ and more recently in this position, as well as his higher ~teSt score. When all of the information'is examined in its entirety, we are not persuaded that it supports 15 the conclusion that Ms. Lesset' was significantly and demonstrably superior to Mr. Thompson. Accordingly, while we.have concluded that there was a ~ significant flaw in the competition ~rocess, it is our cohclusion that even if this'flaw'had not existed, the ultimate result would not have differed as the evidence does not support the conclusion .that Ms. Lessel is a superior candidate to Mr. Thompson by a substantial and demonstrable margin. Therefore, the grievance is dismissed. Dated at Toronto, this 5th day of July, 1993. S.L. Stewart - Vice-Chairperson -I Disse,t" (dissent attached) E. Seymour - Member D. Clark - Member DISSENT RE: 1873/91 OPSEU (Lessel)' and ~ the Crown in Right of Ontario (Ministry of Correctional Services) I have read the majority award and with respect I must dissent. The majority have outlined a number of flaws that ocurred in the competition. I believe that,these flaws are sufficient reasons for a re-run of the competition to be ordered and I would have so ruled. _~ /E. Seymour, Member June 18, 1993