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HomeMy WebLinkAbout1992-1245.Gandolfo.95-02-17 ct~ ~ ( (. .- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO / 1111 GRIEVANCE COMMISSION DE , . SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TOF/ONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) .M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 GSB# 1'245/92 OPSEU# 92E668 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before ". THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Gandolfo) Grievor - and - The Crown in Right of ontario (Ministry of Correctional services) Employer BEFORE: A. Barrett Vice-Chairperson M. Lyons Member R. Scott Member FOR THE M. Bevan UNION Grievance Officer ontario Public Service Employees Union FOR THE G Lee EMPLOYER Grievance Administration Officer Ministry of Correctional Services A Gulbinski Grievance Administration Officer Ministry of Correctional Services INCUMBENT E Little HEARING February 16, 1993 July 9, 1993 November 29, 1994 , ( ( c;::.. I D E CIS ION ! I This ~s a job competition grievance that arose in June, 1992 The vacancy was for a position as a secretary in the London East Probation and Parole Office Both the grievor and the incumbent were already employed as secretaries in the London Centre Probation and Parole Office and had been for some years Apparently both secretaries wanted a change of scene and applied for what amounted to a lateral transfer Both candidates were well qualified for the ~ job Not surprisingly, they both passed the typing and dictaphone .. tests and were judged to be relatively equal after the interview portion of the competition It was a review of the personnel files and reference checks that tipped the balance in favour of Ms Little as being the superior candidate. After this process the interview panel decided that the candidates were no longer relatively equal and they did not weigh seniority pursuant to Article 4 of the collective agreement The grievor has 19 years' seniority with the Ontario Public Service, 15 of which have been spent in her present position in the London Central Office Ms Little has seven years' seniority with the Ministry, four of which have been spent in the London Central secretarial position. In reviewing the personnel files of each candidate, the panel looked at performance appraisals for Ms Gandolfo going back to 1982 and appraisals for Ms Little going back to 1988 The most striking feature of Ms Little's file was that over a five-year period she had had only one day of absence on the short-term sick plan leave Three letters of commendation were in her file ~ \ ( 2 expressing gratitude and satisfaction with her excellent attendance Ms Gandolfo's attendance figures were not nearly as appealing In recent years she had annual absentee rates of between 6 5 and 17 days per year There were two letters of counsel in her file expressing concerns about her attendance With respect to performance-related issues, Ms Little's first performance appraisal for 1987/88 indicated improvement was needed ~ in the areas of spelling, typing and proof-reading Thereafter all , ,-, of her performance appraisals were positive, indicating all of her targets were met A more careful review of Ms Gandolfo's performance appraisals is required because a summary of the file review prepared by Ms Staddon, one of the interview panel members, is alleged to be distorted to the point of showing a bias in favour of Ms Little and against Ms Gandolfo For instance, in a year when each of the candidates received an appraisal indicating that all of their targets had been met, the notation for Ms Little on the summary was "positive appraisal" For Ms Gandolfo the notation was "no concerns" In other appraisals where one negative aspect was identified for Ms Gandolfo, the summary referred to the negative aspect and did not mention all of the positive aspects the performance appraisal contained Ms Gandolfo's 1981 performance appraisal was very positive, noting "her cheerful and warm disposition" and her "positive " ( ( ,;..." 3 contribution to, and co-operation with other office staff in the past year" The interview panel made much of the fact that from time to time there were some negative comments about Ms Gandolfo's "inter- personal relationships" and "time management" This was first noted in a 1982 performance appraisal where it was said "Carol occasionally tends to be somewhat over-assertive in her intra- ~~ office relationships She has a tendency to react emotionally to certain situations, and may not always display a level of patience that she would like " She was also advised in that performance appraisal "To monitor time management in order to allow more time for the performance of routine clerical work." These comments were made in the context that she had displayed a "generally high standard of service" In Ms Gandolfo's 1983 appraisal, it was noted that she had taken positive steps towards dealing with time management and inter-personal office relationships In her next performance review in 1984 it was noted that Ms Gandolfo had taken steps towards effective time management and that she had paid continued attention to inter-personal relationships within the office and there had been a continual strengthening of office relationships She was encouraged to-continue her efforts in this direction since her efforts had so far paid dividends In the 1986 performance appraisal, all of Ms Gandolfo's targets were met and no negative comments were made ~ .. ( ( .- 4 In the 1988 performance appraisal, it was noted "Ms. [Gandolfo] can be a strong performer During the past year, th'is performance could have been enhanced by more effective time management and concern for team goals and office morale " Ms Gandolfo's 1989 performance appraisal indicated that all of her targets had been met, that she continued to perform her responsibi~ities satisfactorily, and that her manager was supportive of a developmental assignment elsewhere in the Ministry .. should such an opportunity arise. The 1990 performance appraisal indicated all targets had been met and "She is completing her work in a timely and accurate manner Ms. Gandolfo has good technical skills and a pleasant telephone manner " Ms Gandolfo's most recent performance appraisal prior to the competition was completed in February, 1992 All targets were met but her supervisor commented "Ms Gandolfo has on rare occasions exhibited some difficulty controlling her temper which has led to some difficulties with her co-workers and with the public over the pone (sic) On the infrequent occasions when this has occurred, Ms Gandolfo has recognized the problem and has resolved to avoid future difficulties " ,- ( ( 5 All three members of the select'ion panel reviewed the personnel files after receiving from Mr Dufton, the Area Manager and selection committee chair, a summary of the reference checks he performed In order to facilitate the reference checks, the panel prepared a list of questions to be asked of the referees, one of which dealt with relationships with co-workers/team work, and another with attendance. The questionnaire was specifically designed for this competition Mr. Dufton summarized the remarks of the referees and presented them to the other two members of the interview panel All three referees evinced some concern about Ms Gandolfo's inter-personal relationships Two referees noted some incidents of short temper, and the third commented "She can get along but doesn't suffer fools gladly" Mr Dufton thinks that he was given specific examples of short temper but he could not recall them at the hearing, nor was there any documentation on Ms 'Gandolfo's file of specific incidents of inappropriate outbursts The only documented incident in her file related toa violation of the workplace smoking policy in February, 1991 Mr Jones, Ms Gandolfo's immediate supervisor at the time of the competition, testified that he could recall giving Mr Dufton one example of Ms Gandolfo's poor relationships with co-workers He recalled an incident in September, 1991, when Ms Gandolfo locked the office door prior to the close of business even though she was asked not to do so by a probation officer The officer was '-' / ( i 6 met with an angry outburst from Ms Gandolfo Mr Jones counselled Ms Gandolfo about this, and she acknowledged that she was wrong and was motivated to try to correct the problem Mr Jones acknowledged that when he prepared Ms Gandolfo's most recent performance appraisal prior to the competition, he wa~ referring to one phone incident and one temper incident in his comments He also acknowledged that he had Ms Gandolfo's personnel file with him while providing her reference, and that he had reviewed her performance appraisals right back to 1982 a~ the time ,.. Management witnesses testified at the hearing that regular attendance is of utmost importance in this P9sition because there are only four secretaries in the office and one administrative clerk to support about 12 probation officers, and the absence of one secretary places an undue burden on the others The staff must deal with the public and each other in a mutually-supportive and co-operative manner The Area Manager is present in the office only three days a week, leaving the secretaries without direct supervision on the remaining two days Time is of the essence for much of the paperwork that must be produced by the secretaries. Mr Dufton testified that in his opinion unacceptable attendance would be comprised of "greatly exceeding six days a year of sporadic absences" A prolonged illness falls into a separate category Mr Dufton was asked in cross-examination if Ms Gandolfo's 1991 absentee rate of 17 32 days had included a 10 or II-day absence for an operation, if he would have taken a different view of that attendance record He testified that if that had been the case, he .~ ( ( 7 would have found Ms Gandolfo's attendance for 1991 acceptable He did not ask the grievor any questions about her absenteeism however (We note here that the grievor gave evidence at the hearing but did not testify that she had a 10 or 11-day absence in 1991 to have an operation ) Mr Dufton said that even though he found 7 65 days of absence acceptable, when compared with zero absences for the incumbent, the candidates are not relatively equal .. It is the concern 'of the Union that vague, occasional, and eS$entially unsubstantiated allegations of poor inter-personal skills have been used against Ms Gandolfo unfairly The allegations are so vague she cannot defend herself against them She testified that she did not think she had any more problems relating with co-workers than anyone else, but she did agree that ~er 1992 performance appraisal was accurate The Union representative pointed out the file review summary prepared by Ms Staddon as being indicative of a bias against Ms Gandolfo because only the negative comments from her performance appraisals were highlighted and the positive aspects ignored. The Union representative argues that the employer took a negative comment made in 1982 and used it to bolster a second negative comment in 1992 some ten years later, while ignoring all of the good performance appraisals in between The Union representative suggests that if these allegations of poor inter-personal skills are serious enough to deny a person a desired position, then they are serious enough to have been documented, but they were not The ( ( 8 grievor is left in, the position of defending herself against innuendo, or more importantly being denied a job on the basis of innuendo The Union representative asserts that the only quantifiable difference between the candidates is attendance, but in this category the selection panel appeared to reward Ms Little's excellent attendance rather than establishing a yardstick for .- acceptable attendance, and measuring Ms. Gandolfo against that ". yardstick Furthermore, if regular attendance was to be the tie- breaker in determining who should get the job, Ms Gandolfo should hav~ been given an opportunity to comment on her past attendance record and her prospects for regular future attendance The Union representative cited Grant, GSB #1396/90 (Barrett) , for the proposition that where the selection panel decides to use attendance as the tie-breaker between two relatively equal candidates they must give the candidates an opportunity to explain their past attendance record and address the issue of the prognosis for future attendance This Board has adopted the view that the test of "relative equality" is really one of determining whether or riot one employee is more qualified than another by a "substantial and demonstrable margin" (see Anderson, GSB #105/86 (Wright)) If two candidates for a position are relatively equal with respect to their qualifications and ability to perform the work, seniority shall be the deciding factor pursuant to Article 431 of the collective ( ( 9 -.Lgreement Ms Gandolfo has substantially greater seniority than Ms Little, and this is the factor that has given us great difficulty with this case The position in question amounts to no more than a lateral transfer for Ms Gandolfo and it would seem to be a situation where Article 4 6 1 of the collective agreement might have been deployed to allow for the transfer without the necessity of a competition, on agreement of the Employer and the Union Ms Gandolfo has been performing the job quite competently .~ for many years and we find it difficult from a common-sense point .. of view to find that Ms Gandolfo is not relatively equal to another person who has been performing the job quite competently for a shorter period of, time The allegations of short temper against Ms Gandolfo relate to incidents that are few and far between and not part, of a pattern of difficult behaviour If that alone was the ground for finding Ms Little superior by a "substantial and demonstrable margin" we would have to say that it was an unreasonable and unfair assessment So how does attendance factor into the equation? BasicallyMs Gandolfo was measured against a standard of perfection displayed by Ms Little We suspect very few people in the Ontario Public Service could measure up favourably to Ms Little's record, but does that mean that Ms Little is substantially and demonstrably superior to all other secretaries who have a lesser attendance record? Where should the line be drawn? In the Grant case, cited supra, both finalist competitors were on the high-use list for sick leave Each of them had absences ranging from 27 to 78 days in a \ 10 ( single year Ms Gandolfo's record shines in comparison with those employees However as the Employer representative pointed out in argument, competitions between two people involve a comparison of the two people, one to the other, so it is not necessary to measure each against an objective standard This is a marginal case Ms Little's reference checks and personnel file were superior to Ms Gandolfo's Ms Little's attendance is superior to Ms Gandolfo's Whether or not the margin , between the two candidates is "substa~tial" cannot be measured with scientific accuracy Therefore, with some reservation, we are prepared to defer to the selection panel's decision that Ms Little was the demonstrably superior candidate We recommend to the parties, however, that should a new vacancy for a secretary arise in the London East Office, consideration be given by the parties to deploying Article 4 6 1 of the collective agreement to transfer Ms Gandolfo into the position Dated at Toronto this 17th day of February. 1995 ~L;ff A Barrett, Vice-Chairperson 'I Dissent' Dissent Attached M Lyons, Member ~ R J Scott, Member - \ r Re 1245/92 OPSEU (Gandolfo) & Ministry of Correctional Services DISSENT I.have'read the decision in this matter, and with respect, I must dlssent for the following reasons 1) Following the interview portion of the competition, the selection panel found that the grievor (Gandolfo) and the incumbent (Little) were "relatively equal" The panel then considered the personal files, attendance and references of the candidates 2) Exhibits 19 and 20, the "File Review" summaries, were prepared by Ms. Staddon Comparing these summaries to the actual Performance Reviews of the grievor and the incumbent (exhibits 4 - 12) it is evident that the summaries are biased in favour of the incumbent ,. ,~ TO the extent that the panel relied on these summaries to reach its decision, the grievor was clearly disadvantaged 3) All the references were checked by ~tr Dufton over the phone He claims to have recorded the comments of each reference (exhibits 23 - 28); however, a review of the exhibits clearly shows that Mr Dufton paraphrased and summerized what each reference had to say about the candidates This procedure leaves open the possibility of biased recording It would have been better if each reference had been asked to complete the reference forms themselves so that the selection panal could see the actual comments of each reference rather than fv4,r Dufton's summary 4) A major reason the selection panel decideQ against the grievor was the allegation that the grievor had exhibited poor interpersonal relations on occasion However, no one from management could recall even one specific incident nor, could anyone indicate how the grievor's alleged behavior had affected the workplace .The grievor's Performance Reviews make reference to minor incidents which occur only rarely Since no specifics were ever related to the grievor, she was never given the opportunity to reply 5) The grievor's attendance record was also given as a reason she was not selected There is no doubt that the grievor's attendance was not as good as the incumbent's, however, there is no indication of what the panel felt was satisfactory attendance or how the panel rated each candidate's attendance Also, the purpose of reviewing past attendance is to try and determine what can be expected in the future Therefore, the panel should have looked at the specifics of each candidate's attendance record; i e what was the recent trend, were there many short term absenses or a long absense, was there a recurring problem that has been corrected, etc It is apparent that the selection panel in this case rewarded the incumbent for her past good attendance rather than considering attendance in the context of the position to be filled 2 ./ ... ., ( - 2 - ( y 6) Assuming that a proper review of the candidates' personal files, attendance records and references revealed that the incumbent was superior to the grievor, that is not sufficient to award the competition to the incumbent Since the grievor is senior to the incumbent, the panel must show that the incumbent is so much superior that the grievor can not be considered "relatively equal" In this case, after reviewing the personal files, attenance and references, how did the panel objectively determine that the grievor was no longer "relatively equCl,l" to the incumbent? How was each factor rated and what weight were they given relative to each other? For the reasons above, I believe that this competition was fatally flawed Accordingly, I would have allowed the grievance Since there was no allegation of bad faith, I would have required the ~. selection panel to reconvene to reconsider the personal files, attendance and references of the grievor and the incumbent in an objective manner ".... Dated at Toronto this 7th day of February, 1995