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HomeMy WebLinkAbout1994-2415TONE97_06_30 ONrARK:J EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONrARK:J 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 2415/94 OPSEU # 95A330 IN THE HATTER OP AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Tone) Grievor - and - the Crown in Right of Ontario (Ministry of the Solicitor General & Correctional Services) Employer BEPORE J. DeVlin Vice-Chair POR THE H Brugma GRIEVOR Grievance Officer ontario Public Service Employees Union FOR THE G Frelick EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING November 26, 1996 Ma y 16, 1997 1 The Grievor, Raymond Tone, who is a member of the unclassified service, alleges that a competition for the position of Recreation Officer 2 at the Mimico Correctional Centre was "fatally flawed" The Grievor requests that he be appointed to the position and compensated for all monies and benefits lost. The successful applicant for the position was Lee Ann Enright who attended and participated in the hearing At the outset of the hearing, the Employer raised a preliminary objection to the arbitrability of the grievance, maintaining that as Mr Tone was a member of the unclassified service, he did not have the right to grieve a job competition. The Union, contended, however, that the Board has previously taken jurisdiction where it is alleged that the Employer acted in bad faith in conducting a competition which is the essence of the Grievor's claim in this case Although the Union further contended that the issue of bad faith was raised at the outset, the Employer disputed this contention and claimed that the matter was first raised shortly before the hearing As a result, the parties agreed to call evidence with respect to the processing of the grievance The evidence indicates that the Grievor was first appointed to the unclassified service on July 19. 1990 and from that date until September 20. 1993. he worked under a series of contracts as a part-time Recreation Officer 1 at Mimico He was subsequently appointed as a casual Correctional Officer 1 for a six-month period 2 beginning July 11, 1994 In late August or early September, the Centre received approval to hire a full-time Recreation Officer 2 in the classified service and pending the filling of that vacancy, the Grievor was appointed as a full-time Recreation Officer 1, unclassified In October, the vacancy for Recreation Officer 2 was posted and there were 12 applicants for the position, two of whom were members of the classified service and 10, who were members of the unclassified service Eight applicants, including the Grievor, were granted interviews which were conducted by a selection panel comprised of Sari Albert, the Deputy Superintendent, Administration, Corrina Kitchen, the Social Program Administrator; and Ralph Berry, the Recreation Manager As indicated previously, the successful applicant for the position was Lee Ann Enright, a classified employee with seven years' service Ms. Enright received an aggregate score of 165 on the interview and was ranked first overall by members of the selection panel The Grievor received an aggregate score of 172 5 on the interview and was ranked second overall In early December, 1994, the Grievor was advised that he was not the successful applicant for the position as a result of which he requested a meeting with Mr Berry to discuss the competition That meeting, which took place on December 22nd, was also attended by Gary Harrison, the President of the Local During the 3 meeting, the Grievor was shown the questionnaires completed by members of the selection panel setting out his answers to the questions posed at the interview together with the corresponding mark for each question After reviewing the questionnaires, the Grievor made some complaint about the fact that one of the questionnaires had been completed in pencil, rather than in pen He also noted that in respect of three questions, the marks recorded by Mr Berry had been erased and replaced with lower marks. Mr Berry testified that two of the questions concerned the Grievor's correctional recreational experience and related recreational experience and that after discussion with other members of the selection panel, he reduced his initial marks to reflect the fact that the Grievor's experience had been obtained on a part-time, rather than a full-time, basis. Mr Berry could not recall why he had reduced the mark for the third question In any event, the changes involved a total of three or four marks At the meeting on December 22nd, the Grievor also claimed that he ought to have received a higher score on the interview as his answers were consistent with the sample answers which appeared on the questionnaire Mr Berry and the Grievor then reviewed the answers to the questions asked and Mr Berry explained the reason for the marks in each case Mr Berry testified that there was no indication that the Grievor was claiming bad faith on the part of management in conducting the competition 4 Mr Tone submitted his grievance on December 28,1994 and, as indicated previously, the grievance alleges that the competition for the position of Recreation Officer 2 was "fatally flawed" Both the Grievor and Mr Harrison testified this term was intended to encompass a claim of bad faith In this regard, the Grievor testified that the marking of the questions and, in particular, the changed marks of Mr Berry suggested collusion on the part of management and a premeditated attempt to prevent him from obtaining the position The Grievor also testified that having subsequently obtained the questionnaires of other applicants pursuant to the Freedom of Information and Protection of Privacy Act, he was satisfied that the marking of interview questions was inconsistent as among the applicants. In addition to his grievance, the Grievor also filed a complaint under the Ontario Human Rights Code The parties subsequently met at stage 2 of the grievance procedure on February 24, 1995, having previously agreed that the meeting of December 22, 1994 -- would serve as the discussion stage of the grievance procedure In attendance at the meeting on February 24th were Bryan Ross, the Area Personnel Administrator; Mr Leithead, the Superintendent at Mimico, the Grievor and Mr Harrison Mr Harrison testified that during the meeting, he advanced two claims on behalf of the Grievor Firstly, he challenged the composition of the selection panel as it was Mr Harrison's understanding that Ministry policy required that one member of the panel be a representative of the Human Resources Department. Mr Ross indicated, however, that there was no such requirement. Secondly, Mr Harrison testified that he claimed 5 that Mr Berry had altered the marks for certain questions to coincide with those of other panel members which suggested collusion on the part of management. The Grievor also claimed that he had not been given appropriate credit for his answers at the interview and, again, there was a review of the marking Although a request was also made for disclosure of competition documents, management declined to provide such documents, apparently because it was of the view that the grievance was inarbitrable Mr Ross' evidence regarding the meeting of February 24th differed somewhat from that of the Grievor and Mr Harrison Mr Ross testified that while Mr Harrison made reference to the composition of the selection panel, the thrust of the complaint appeared to relate to the fact that the Grievor had not received higher marks for his answers at the interview Mr Ross could not recall any suggestion having been made that Mr Berry's marks had been changed to coincide with those of other panel members. Moreover, while it was alleged that the competition was "flawed", Mr Ross testified that this is common terminology in competition grievances and that no reference was made to an allegation of bad faith Accordingly, in his reply to the grievance at stage 2 which was dated February 28, 1994, Mr Ross advised Mr Tone that his gnevance was inarbitable as the provisions of Article 4 relating to the filling of vacancies did not apply to unclassified employees Mr Ross testified that he would have framed his reply somewhat differently had there been any indication that the Grievor was alleging bad faith 6 The grievance was subsequently referred to arbitration and scheduled for hearing before the Board on January 8, 1996 Prior to the hearing date, however, the Grievor was advised by the Union that the hearing would not proceed on that date as the Union was only scheduling "priority cases", these being grievances concerning dismissal, layoff, sexual harassment and health and safety matters. The Union also made some reference to the fact that the provisions respecting the filling of vacancies had no application to unclassified employees. In any event, as the Grievor did not accept the Union's explanation, he filed a complaint with the Ontario Labour Relations Board alleging a breach of the duty of fair representation and claiming bad faith on the part of the Union in processing his grievance This complaint was subsequently resolved and the grievance was scheduled for hearing before the Board Decision The following provisions of the collective agreement are relevant to the arbitrability of Mr Tone's grievance ARTICLE 3 - UNCLASSIFIED EMPLOYEES 3 1 The only terms of this Agreement that apply to employees that are not civil servants are those set out in this Article UNCLASSIFIED STAFF OTHER THAN SEASONAL EMPLOYEES 3.2 Sections 3 3 to 3 16 apply only to unclassified staff other than seasonal employees 7 316 The following Articles shall also apply to unclassified staff other than seasonal employees Articles A, 1,4 1,44,6,77,9, 11, 12, 15, 16, 17, 18 5, 21, 22, 23, 25, 27, 29, 32, 33, 34, 35, 36 and 86 ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW POSITIONS 41 When a vacancy occurs in the Classified Service for a bargaining unit position or a new classified position is created in the bargaining unit, it shall be advertised for at least ten (10) working days prior to the established closing date when advertised within a ministry, or it shall be advertised for at least fifteen (15) working days prior to the established closing date when advertised service-wide. All applications will be acknowledged Where practicable, notice of vacancies shall be posted on bulletin boards 431 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, seniority shall be the deciding factor 44 An applicant who is invited to attend an interview within the civil service shall be granted time off with no loss of pay and with no loss of credits to attend the interview, provided that the time off does not unduly interfere with operating requirements As is evident, Article 4 3 1 which deals with the filling of vacancies has no application to members of the unclassified staff and, on this basis, it has been held that an unclassified employee does not have a general right to grieve the results of a job competition see, by way of example, OP~EU (Ahluwalia & Vahist) and The Crown in Right of Ontario (Ministry of Transportation & Communications) G S B File No 725/83, OPSEU (Campbell) and The Crown in Right of Ontario (Ministry of Health) G S B File 8 No 1088/86 and OPSEU (Daniels) and The Crown in Right of Ontario (Ministry of the Solicitor General) G.S.B. File No. 1544/87 Nevertheless, the Board has taken jurisdiction where bad faith has been alleged as otherwise the Employer could defeat the rights of unclassified employees under Article 4 1 and 44 see OPSEU (McIntosh) and The Crown in Right of Ontario (Ministry of Government Services) G S B File No 3027/92. In fact, it is on the basis of . bad faith that the Union contended that the grievance of Mr Tone is arbitrable The Employer maintained, however, that this claim was not advanced during the grievance procedure and that, in any event, the allegations of the Grievor are not sufficient to support a finding of bad faith As to nature of those allegations, the evidence indicates that both at the meeting on December 22, 1994 and at the meeting on February 24, 1995, the Grievor claimed that he was not given appropriate credit for his answers at the interview Claims of this nature, however, are common in competition grievances and a difference of opinion between management and an individual employee regarding the merits of answers to particular questions does not, standing alone, indicate bad faith Moreover, I am not persuaded that the Grievor indicated during the grievance procedure that he was alleging that management had acted in bad faith or for an improper motive Indeed, it would appear that the Grievor's claim of bad faith is based primarily on the fact that he was not the successful applicant in the competition and, as a result, has 9 concluded that there must have been bad faith on the part of management. However, bald allegations of bad faith which were not clearly advanced during the grievance procedure cannot support the arbitrability of the grievance in circumstances where the provisions of Article 4 3 1 respecting the filling of vacancies have no application to unclassified staff Although the Grievor also claimed at the hearing that the marking of the interview questions was inconsistent as among job applicants, this matter was evidently not raised during the grievance procedure as management declined to provide copies of the competition documents In any event, once again, it is common in competition grievances that there is a complaint regarding the marks of other applicants and, in particular, the successful applicant. In fact, in this case, it is of note that the Grievor received the highest score on the interview but was not awarded the position as he was found to be relatively equal to Ms Enright as a consequence of which seniority governed As indicated previously, the Board's jUrisdiction to hear a job competition grievance by an unclassified employee is extremely narrow and does not extend to reviewing the correctness of the marking process In fact, even if there were errors in marking (which is not to suggest that there were in this case), such errors are not reviewable at the instance of an unclassified employee Moreover, for the Board to take jurisdiction based solely on the bald assertion that, in the Grievor's opinion, the 10 marking was inconsistent would effectively permit a review of the competition process at arbitration which, under this collective agreement, is available only to members of the classified staff Finally, as to the marks which were changed by Mr Berry, the Grievor alleged that the changes were made to correspond with the marks of other members of the selection panel Evidently, this issue was raised at the meeting on December 22nd and Mr Harrison testified that he also raised the matter at the meeting on February 24th and claimed that the change in marks suggested collusion on the part of management. Although Mr Ross could not recall such an allegation having been made, based on the evidence of Mr Harrison, I find that while the term bad faith may not have been used, the propriety of the change in marks was challenged during the meeting at stage 2. Leaving aside whether the practice of marking based on a discussion among panel members is appropriate, this practice (commonly referred to as consensus scoring) is not indicative of bad faith unless there is a change in marking for reasons which are unrelated to an employee's qualifications and abilities relative to the job in issue In this case, Mr Berry testified that he reduced his initial marks for two questions to reflect the fact that the Grievor's experience had been obtained on a part- time, rather than a full-time, basis Although Mr Berry could not recall the reason for changing the mark for the third question, clearly there is nothing in his explanation for 11 changing the marks for the other two questions which could support a finding of bad faith Accordingly, unless the Union intends to call evidence to refute the explanation offered by Mr Berry and to indicate some improper motive for the change in marks, it must be found that the claim of bad faith has not been made out. In the result, the Union shall have 30 days in which to advise whether it intends to call such evidence, failing which the grievance shall be dismissed DATED AT TORONTO, this 30th day of June. 1997 ~jjj ~ ~ Vice-Chair