Loading...
HomeMy WebLinkAbout1994-1236PINO95_07_31 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 11111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO, MSG lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE/TELECOPIE (416) 326-1396 --.--- ----- GSB # 1236/94 J4'~"" ~.g ~~'i .:tc., ! 1. (:'.,',.1 '1 '{ {"'J ,,' ~ OPSEU # 94G106 c\ ~ tJ -1J IN THE MATTER OF AN ARBITRATION Under "- '~ ,----,- ___~_ ___.......____ ___~_...~r.._a__ THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Pino) Grievor - and - The Crown in Right of Ontario (Ministry of Education & Training) Employer BEFORE W Kaplan Vice-Chairperson FOR THE G Richards GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE B Adams EMPLOYER Coordinator Labour Management Relations & Client Services OTAB Ministry of Education & Training FOR THE C Hill THIRD PARTY HEARING July 25, 1995 ~ 2 Introduction This case concerns the August 26, 1994 grievance of Mr John Pino, an Industrial Training Officer employed by the Ontano Training Adjustment Board In brief, Mr Pino gneves both the process and the result of a job competition for the position of Program Coordinator The grievance proceeded to an expedited hearing in Toronto at which time the parties filed lengthy and detailed briefs They also made extensive oral submissions The Incumbent, Ms Carol Hill, was notified of these proceedings, attended, and made both oral and written submissions The Union's Case In brief, it was the union's submission that the employer violated the Collective Agreement when It failed to interview the gnevor for the Program Coordinator position Sixteen individuals applied for this position after it was advertised In Topical, and, following a pre-screening process, five of the applicants were selected for an interview In order to qualify for an interview, applicants were required, in pre-screening, to achieve a minimum score of 13 out of 20, and were further required to score at least one pOint in each of three designated areas, and score at least four points in total for these three areas The grievor failed to achieve the minimum score - he obtained a score of 1 1 - and also failed to achieve the threshold score for the specifically designated cntena While the union raised a number of concerns with respect to the running of this competition, two main flaws were identified First, that the selection cntena used by the employer inexplicably failed to include one Important factor listed under the skill and ability requirement In the position specification - a factor that If considered would have worked to the ~ 3 grievor's advantage And second, that there was little or no evidence that the employer turned its mind to the standards it would use for marking the applicants on each of the selection criteria, consequently, there was a lack of logical and consistent application of the critena in the pre-screening of the applicants Union counsel developed these submissions in both his brief and his argument Illustrating these two pOints With a number of examples In particular, counsel noted that the posting assumed that the applicants for the position would arrive ready and able to begin work, and this reqUirement was reflected in the position specification which reqUired applicants, among other things, to have a detailed knowledge of the Trades Qualification Act. However, the employer failed to include knowledge of this Act in the criteria it used for screening purposes In the result, the gnevor, who had detailed knowledge of this Act - knowledge necessary for the performance of the pOSition In question - was screened out, while the incumbent, who came from a different ministry, and had no working knowledge of this legislation, was screened in It was Inconceivable that the grievor, who had years of experience working With this legislation and in this field, was not allowed to obtain any benefit from this knowledge and experience In the union's view, for thiS reason alone the process the employer employed was manifestly unfair Counsel noted that If this criteria had been Included, and if the grievor had been given pOints for It, he might have qualified for the interview and then obtained the position As noted above, the union also took issue with the manner In which the selection cntena were defined and applied to the individual applicants While the union referred to a number of examples In support of thiS 4 submission, and it is fair to say that in at least one of the examples raised by the union it is qUite difficult to understand the score given to an applicant other than the gnevor In one specific area, the main bone of contention, from the union's point of view, was the absence of detailed standards and rationales for the various possible marks within the allowed pOint spread It IS not necessary to recite the union examples chapter and verse, suffice it to say that it was the union's submission that the gnevor had similar experience to other applicants who received higher scores and should, therefore, have also received a higher score Had he done so, union counsel noted, he would definitely have been interviewed, and he might have obtained the position Finally, the union raised some concerns about the Incumbent noting that she has continued to live In Toronto after obtaining thiS Sault Ste Marie position, and has, moreover, been spending a great deal of time attending In-house Ministry training as well as classes at OISE These facts raised, In the union's mind, certain suspIcions about what taken place Union counsel suggested, for instance, that if the position was a training one, as It now appeared, the relatively small differences in score results should not have precluded the grievor from obtaining it, given his greater senlonty Counsel noted that the gnevor might have been Interested In receiving the same type of training and continuing education now apparently being enjoyed by the Incumbent. For all of these reasons, union counsel asked me to find that the process was flawed, and to direct the employer to rerun the competition after ensunng, through the prOVision of a number of remedIal steps, that a truly fair competition take place between the gnevor and the Incumbent. 5 r The Employer's Case Mr Adams, on behalf of the employer, began his submissions by referring to the history of this particular competition To make a rather long story short, the pOSition in question was first posted some time earlier and was re-posted only because no one, including the gnevor, qualified for an interview The grievor grieved and, as part of a negotiated settlement, was given an interview He was stili unsuccessful In his quest for the pOSition, and he attended a post-interview debriefing The job was then reposted Given the previous expenence, the Manager of the Unit reviewed, and downwardly revised, the scores required to obtain an interview The resumes of all the applicants, including the grievor, were assessed according to the revised cnteria These criteria, Mr Adams hastened to point out, were not arbitrary; rather they were carefully thought out and were directly relevant to the position In question Moreover, a document entitled "Details of the Selection Criteria, It was Introduced into evidence, and this document indicates the scores given for each of the cnteria and explainS, albeit In somewhat summary fashion, how the range of scores was to be assigned in each case In his submissions, Mr Adams explained why each of the critena were chosen, and also reviewed their relevance to the pOSition In question It was true enough that no grades were aSSigned for knowledge of the Trades Qualification Act. The employer did not dispute the submission that knowledge of this Act and its regulations were important. Nevertheless, knowledge of this legislation was excluded for two Important reasons First, to Include It would give Internal applicants an unfair advantage, and second, the employer was of the view that the necessary knowledge could be qUickly obtained and would not, In the short intervening penod, impact ~ 6 - negatively on the successful candidate's ability to Immediately perform the Program Coordinator position The employer also took the position that knowledge of this legislation was only one small part of the skills and knowledge required for the position, and it was not, therefore, appropriate to give it undue emphasIs as a cnteria to be evaluated m the selection process. What was important, and what had taken place, in the employer's submission, was the preparation of an advertisement that fully and fairly set out the requirements for the position This process was followed by the pre-screenmg of the applicants In a manner that provided none of them with any unfair advantage Mr Adams noted that it has never been the policy, or a requirement, to indicate in a job advertisement, or to require In the pre-screening process, enumeration or assessment of all of the skills and knowledge required for a particular position With respect to the actual evaluation of the critena employed m assessing the applicants, Mr Adams noted that the employer prepared a guide in advance, referred to above, and used that guide in evaluating the applicants This process resulted m the objective assessment of all of the applicants While the union asserted that the grievor should have received higher scores for a number of the cnteria, the employer took the position that he had been fairly evaluated in each and every case It was also the employer's submission that it was not appropriate to compare the gnevor with a number of other applicants who scored higher in the pre-screening because those mdlvlduals, for reasons that Mr Adams explamed, had different backgrounds and experience than the grievor In the employer's View, every job competition was unique, and required special preparation by interested applicants In thiS case, all that the 7 -' . grievor did was resubmit his previous application, and once again failed to draw to the employer's attention the specific qualifications he had for the position In question The employer still evaluated his application along with all of the others submitted, and determined that the gnevor did not meet the threshold requirements Mr Adams argued that In following this process the employer did nothing wrong and everythmg right. Just because the grievor received an interview for the position on some previous occasion did not mean that he was automatically entitled to an interview on this occasion It was up to the gnevor to demonstrate that he met the threshold requirements of the position, and on the matenals he submitted, those Identical materials that had failed to obtain him an interview on the first round (absent the filing and settlement of a grievance), he was not granted an interview This, Mr Adams argued, was hardly surprising and should not, In any event, lead to the Board ordenng an interview In this particular case as the Job posting was consistent with the position specification, and the evaluation of the grievor's application was fair Accordingly, Mr Adams asked that the gnevance be dIsmissed Submissions of the Incumbent Ms Hill made a number of submissions on her own behalf She descnbed her background and experience in the Public Service, and also detailed some of her efforts to prepare for this competition According to Ms Hili, she has had a great deal of expenence in Interpreting and applYing vanous statutes, and in preparation for this job competition she familiarized herself In short order with the Trades Qualification Act. Ms Hill did not deny that she has, in addition to working in her position, been taking training courses In Toronto She pointed out, however, that she applied for these courses and further noted that she had provided information about these courses to the 8 grievor who could have, had he wished, also applied to take them It was Ms Hill's position that the grievor failed to prepare himself for this employment opportunity Ms. Hill noted that she had had three or four interviews with OT AS pnor to successfully obtaining this position, and noted that she worked hard to obtain this job. It was hardly fair, in these circumstances, for the gnevor, who had not prepared for the job, to both gneve the result and then to suggest, if his grievance was successful, that he should be given various "equalizing" opportunities in order to compete more effectively in a rerun Ms. Hill argued that the job competition was properly administered and asserted that she won it fair and square In her view, the grievance should be dismissed DeCISion Having carefully considered the evidence and arguments of the parties, and the evidence and argument of the incumbent, I have concluded that this gnevance should be dismissed In my View, the eVidence establishes that the employer reviewed the position descnption and then developed selection critena that were related to the position in question It is true enough, as the union asserted, that these critena do not comprehend all of the knowledge reqUired for the position as set out in the position specification, but having reviewed both the position specification and the selection critena, I am satisfied that the latter are specific enough so as to provide a valid measure of the true requirements of the position in question In making this finding, It should be noted that the knowledge of one piece of legislation, which was required on the job, was not assessed in the pre-screening process However, as Mr 9 "- Adams pointed out, knowledge of this legislation was found among a relatively long list of skills and knowledge required, and its absence alone cannot be considered fatal to the process particularly where all of the other critena, as I have found, do provide an appropriate basis for the pre-screening of applicants for interviews for the position When one further considers the stated reason for eliminating knowledge of this legislation from the cnteria - namely to open the competition to other members of the Public Service - one is hard pressed to find that ItS omiSSion is fatal to the integrity of the competition especially since, In this case, the necessary knowledge could be readily obtained The union also took the position that the gnevor had been unfairly scored In a number of categories and suggested that the absence of a sconng system, and the manner in which grades were assigned, was further evidence of a flawed competition While the scoring system that was used is not a model of comprehensiveness, it IS clear that the employer did, pnor to the pre-screening of the applicants, consider in some coherent fashion how each of the critena would be assessed and how scores would be assigned There is no evidence of any bias or impropriety in the application of that sconng system - all of the evidence is to the opposIte effect. Moreover, while the gnevor believes that he should have received higher scores for a number of cnteria, and provided reasons for this belief, I must, having reviewed these arguments, and management's response, ultimately conclude that the gnevor's reasons are unpersuasive In general, the applicants with whom the grievor compares himself are more qualified and have higher levels of expenence In the cntena being assessed It is hardly surpnslng, In these circumstances, that they receIved higher scores and, in that way, qualified for an interview 10 ... Without a doubt, the process employed In this case, like in every job competition, was not perfect. Few human endeavors are However, It IS clear that when the process is considered in ItS entirety, that the criteria were reflective of the position, and that the different applicants were consistently evaluated based on the information they submitted While the sconng guidelines could have been, and probably should have been, further developed, any problems with them are not of such a significance to ment a rerun or any other remedial relief There IS no eVidence of bias or bad faith in the screening of the grievor's application and, having reviewed that application, and those of the applicants granted an interview, I have no reason to conclude that the grievor was short-changed in any way in the assignment of particular grades It should be noted as well that if the gnevor's resume failed to indicate that he had the required skills and knowledge, he has only himself to blame It was certainly open to him to revise and update his resume instead of submitting the same one he had submitted one year previously which had failed, at first round, to result In his receiVing an interview Accordingly, and for the foregoing reasons, the gnevance IS dismissed DA TED at Toronto this 31 st day of July 1995 !rf~ f -~--------------- William Kaplan Vlce-Cha Irpe rson