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HomeMy WebLinkAbout1996-2622MISKELLY99_03_04 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETILEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G tZ8 TELEPHONEITELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILEITELECOPIE (41tJ) 32tJ-13~ GSB #2622/96 OPSEU #97COn IN THE lVlATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Dillon (Elame Miskelly) Grievor - and - The Crown m RIght of Ontano (Miillstry of Fmance) Employer BEFORE RIchard M, Brown V Ice-Chair FOR THE Peggy SmIth GRIEVOR Counsel, EllOt, SmIth Bamsters & SolICItors FOR THE Roslyn BaIchoo EMPLOYER Counsel, Legal ServIces Branch Management Board SecretarIat HEARING February 23, 1999 Elame Miskelly was an unsuccessful candIdate m a Job competItIOn for two posItIOns of field servIces officer at the MinIstry's Durham office The Jobs were posted on September 25, 1996 EIght applIcants attended an mtervIeW and completed a wntten test, wIth numencal scores bemg aSSIgned for both. At thIS stage In the process, Ms MIskelly had a mark of 179 5 out of 275 Three other applIcants had hIgher scores WhICh ranged from 180 to 195 5 All of them had less senIonty than the gnevor The employer concedes that Ms Miskelly would be relatIvely equal to the hIgher sconng candIdates If the determmatIOn IS based exclUSIvely upon the marks InItIally aSSIgned to the mtervIews and tests The three-person panel conductIng the Job competItIOn lowered the gnevor's mark to 165 5 because of what was learned dunng a subsequent reference check. Based upon thIS new score, Ms Miskelly was found not to be relatIvely equal to the two candIdates wIth hIgher marks The posItIOns were awarded to two of them. I ElaIne Miskelly testIfied about her employment hIStOry at the MinIstry She began as a receptIOnIst In December of 1982 In Apnl of 1984, she moved on to work as secretary to a semor manager, a posItIon she retaIned for four years Dunng thIS tIme, she was sometImes seconded to other posItIOns, mcludmg one as secretary to the branch dIrector and another as servIce representatIve The latter secondment lasted from October of 1990 to September of 1991 Ms MIskelly was seconded to work as a surveIllance clerk m 1992 A year or two later, she won a permanent appomtment to that posItIOn. She was stIll workIng as a surveIllance clerk at the tIme of the contested Job competItIOn. 2 A surveillance clerk deals wIth taxpayers concemmg pnvate sales transactIOns mcludmg those mvolvmg cars, boats, aircraft, and out-of- provmce purchases Judy Sutherland, the gnevor's manager at the time of the competItlOn, testIfied such clerks spend approxImately SIXty per cent of theIr tIme talkIng to taxpayers The commUnICatlOn IS almost exclusIvely over the telephone In a typIcal scenarIo, the taxpayer IS bemg asked to pay tax or to pay more tax then was InItially paid. The message often IS not welcomed. EVIdence about the work of field servIce officers was gIven by AnIta McDonald who chaired the selectlOn panel As a servIce manager for twelve years, Ms McDonald has supervIsed three field servIce officers Employees In thIS posltlOn deal WIth vendors who are respo'nslble for the collectlOn of retaIl sales tax. ApprOXImately SIXty per cent of an officer's time IS spent workIng on the premIses of vendors FIeld servIce officers also do semInar presentatlOns where the audIence "may not want to hear what IS beIng Said." Among the qualIficatIOns lIsted on the Job speclficatlOn for thIS pOSItion are "well developed Interpersonal and commUnICatIOn skIlls" In cross-eXamInatIOn, Ms McDonald acknowledged the Jobs of field servIce officer and surveIllance clerk are SImIlar m some respects Both reqUlre not only effectIve commUnICatlOn but also tact, dIplomacy and an abIlIty to defuse confrontatlOn. Ms McDonald testified there are also some dIfferences As field servIce officers VISIt the premIses of vendors, they may feel theIr space IS beIng mvaded and theIr bUSIness dIsrupted. W orkmg m the field, these officers do not have a supervIsor close at hand for support. They also have an ongOIng relatlOnshlp WIth vendors wlthm whIch they attempt to achIeve voluntary complIance The pOSItIOn of surveIllance clerk IS classIfied as GAD8, WIth an end-rate of $19 49 per hour, whereas the 3 posItIon of field servIces officer IS classIfied as GAD 12, wIth an end-rate of $24 80 Elame Miskelly was mtervIewed on November 5, 1996 by the same panel as other candIdates It was compnsed of Ms McDonald and two other servIce managers, Jeanne Charette and Bert Kmgma. In her testImony, Ms McDonald gave the followmg descnptIOn of the mtervIew LIke all candIdates, the gnevor was asked to speak slowly, so that her answers could be recorded. She spoke very qUIckly and was asked on at least two occaSIOns to slow down. After each request, she spoke at the same rate, If not faster, and her VOIce got louder She Jumped from answenng the questIOns at hand to talkmg about her personal feehngs and matters addressed by questIOns not yet asked. Her face got red as the mtervleW went on. By the end, she was a "run-on talker" who could not be "deflected from what she wanted to say" Ms McDonald descnbed the mtervIew as the "most dIfficult" one she had attended m the course of twenty or so Job competItIOns Asked m exammatIOn- m-chIef whether the gnevor was mtImIdatmg, Ms McDonald answered "In a way We stopped trymg to control her because It was makmg thmgs worse " Ms MIskelly testIfied she had httle recollectIOn of the mtervIew She could not recall whether anyone had asked her to slow down or had saId the tOpIC she was addressmg would come later The descnptIOn of the mtervIew gIven by Ms McDonald m her testImony IS much more detaIled than the one recorded by her at the tIme In a space on the mtervleW form entItled "personal sUItabIhty / general observatIOns dunng mtervIew," Ms McDonald wrote only a very bnef comment "Spoke very qUIckly and not always on tOpIC" Mr Kmgma wrote 4 - nothmg By far the fullest account was recorded on Ms Charette's mtervIew form Not focused. Too wordy A lIttle too casual Not succmct. Talks too fast. Might confuse us as she's not organIzed m thoughts RepetItIve DIdn't lIsten. Not calmmg Would become too excIted m the field, maybe causmg conflIct. Talks too fast. DISjOmted. Interrupted. Run- on talker ThIS hearsay eVIdence, mtroduced wIthout ObjectIOn, corroborates the testImony of Amta McDonald. Under the markmg scheme, candIdates were not scored on the basIs of the panel members observatIOns about theIr conduct dunng the mtervIew They were marked on the substance of theIr answers, but not the form, wIth one exceptIOn. Each candIdate was asked to act out a two-mmute openIng to a semmar on a tOpIC of hIS or her choIce Ms McDonald recorded her assessment of the gnevor's performance on the mtervIew form "Spoke qUIckly but clearly--good eye contact--lots of personalIty & expressIOn" ThIS performance was marked out of five The mark assIgned to the gnevor's presentatIOn IS not known because the documents retamed report only the overall score for commUnICatIOn skIlls The panel members met at the end of the day on November 5 to compute scores for those mtervIewed that day Accordmg to AnIta McDonald, each member of the panel expressed concern about the gnevor's mtervIew As to her concern, Ms McDonald testIfied the substance of the gnevor's answers dId not match the form. In response to questIOns about customer servIce and commUnICatIOn SkIlls, she talked about lIstenmg, showmg empathy and speakmg concIsely, but she dId not demonstrate these skIlls In the way she behaved. There was some dIscussIOn about adjustmg 5 the marks assIgned to the substance of the answers gIven by the gnevor, but the panel decIded not to do so at that time On Ms McDonald's recommendatIOn as charr, the panel deferred thIS matter pendmg a reference check, m order to determme whether the problem they had observed at the mtervIew had also occurred on the Job Elame Miskelly had completed a form wIth spaces for the names of two people who could be asked for a reference She named her manager, Judy Sutherland, and her group leader, Betty GIbbs The gnevor and five other surveIllance clerks worked under Ms GIbbs as group leader Ms Sutherland was responsIble for two group leaders and twelve clerks The gnevor testIfied she had more mteractIOn wIth the group leader than wIth the manager The panel contacted Ms Sutherland but not Ms GIbbs, who was on long-term dIsabIlIty leave at the time In a telephone conversatIOn, Ms Sutherland was asked a senes of questIOns on a standard form, and Ms McDonald recorded the answers m the spaces prOVIded. For the three candIdates wIth hIgher scores than the gnevor, a smgle reference check was done usmg the same form. One of the reference questIOns IS about how the candIdate performed m the area of customer serVIce Ms Sutherland's answer IS recorded as follows Speaks very qUIckly Info [1 e mformatIOn] gIVen so fast It may not be receIved correctly Trymg to control--she IS aware of the problem Mgr [1 e manager] has lIstened to her speak on the phone and thought that the mformatIOn was gIven so qUIckly the mgr would not have understood It. 6 ~ Another questIOn on the form IS whether any complamts about the candIdate ever had been receIved from chents Ms Sutherland's answer IS recorded as follows Yes--manager had to resolve a couple of Issues--one m person, one on the phone Shght abraSIve manner contnbuted to problem. Taxpayer needed someone [the rest of thIS sentence IS IllegIble] Elame IS excItable and speaks loudly--thls sometimes mtlmldates the taxpayer Accordmg to Ms McDonald, the panel vIewed these comments as confirmatIOn of theIr concerns about the gnevor's mtervlew and proceeded to reduce her score Her Imtlal mark of 53 out of 80 for customer servIce was reduced by 10 to 43, and her mltIal mark of 13 out of20 for commumcatIOn skills was reduced by four to mne As a result, she was no longer treated as relatIvely equal to the hIgher sconng candIdates Ms Sutherland and the gnevor have work statIOns not far apart, separated by two other statIOns and two narrow walkways Between theIr work statIOns, there are baffles but not walls Testlfymg she IS able from her desk to hear the gnevor and others m the vlcmlty, Ms Sutherland descnbed Elame Miskelly's manner of speakmg as loud and qmck. Ms Sutherland testified that, over the years and m passmg, she has told the gnevor to slow down. The gnevor demed ever bemg told she spoke too qmckly, eIther by Ms Sutherland or anyone else Indeed, she testIfied about bemg told she repeats herself to ensure she IS understood. One of the two mCldents mentIOned by Ms Sutherland dunng the reference check was so mSlgmficant that she dId not make a note about It and had httle recollectIOn of what had transpIred when she testIfied. It occurred before the second mCldent whIch happened m November of 1995 On that occaSIOn, a taxpayer vISIted the Mimstry's office and asked to speak 7 to Ms Sutherland about an assessment prevIOusly dIscussed on the telephone wIth the gnevor A very bnefnote, made by Ms Sutherland while dealIng wIth the taxpayer, IndIcates she alleged Ms MIskelly had told her to hurry up because she was tymg up government lmes The note also mdIcates the gnevor had assessed tax on a faIr market value pnce of $4,000, after the taxpayer had Imtmlly reported a pnce of $2 00 Ms Miskelly's testlmony about thIS mCIdent IS eqmvocal In examInatIOn-m-chIef, she reported tellmg the taxpayer to get to the pomt, after she had tWIce put down the phone to attend to other matters When asked agam about thIS mCIdent m cross- eXamInatIOn, the gnevor Inltlally saId she could not recall and asked what she had Said In her earlIer testimony She then testified she had Said. "I am here to dISCUSS the problem." Elame Miskelly demes ever dIscussmg thIS IncIdent wIth Ms Sutherland. Accordmg to her, after speakmg wIth the taxpayer, Ms Sutherland JOIned a staff meetmg m progress and reportmg tellmg the taxpayer that "Elame MIskelly IS one of our outstandmg employees" Ms Sutherland testlfied she reported at the meetmg that the matter had been resolved. On her account, when she passed Ms MIskelly's work statIOn upon leavmg the meetmg, the gnevor asked what had happened wIth the taxpayer, and there followed a brIef dISCUSSIOn m whIch the manager reported the taxpayer's complamt and the employee offered her verSIOn of the telephone conversatIOn. Ms Sutherland testlfied no mvestIgatIOn was conducted and no dIscIplmary actIOn taken because thIS was the first "sIgmficant" complamt she had receIved about the gnevor The manager kept the note m a file contammg other papers relatmg to the gnevor The panel dId not reVIew performance appraIsals of Ms Miskelly's work. No appraisal had been done durmg her time as a surveIllance clerk. 8 She testIfied her work had been appraIsed as receptIOnIst, secretary and servIce representatIve These performance appraIsals were not entered m eVIdence Asked about them m exammatIOn-m-chIef, the gnevor saId they were "excellent" and they descnbed her as havmg "good commUnICatIOn skIlls" and bemg "pleasant to work wIth" II The Job competItIOn m thIS case was not conducted m accordance wIth the reqUIrements of thIS Board as summanzed m OPSEU (MacLellan and DeGrandzs) and Mznzstry of Government Servzces, dated May 18,1982, GSB FIle No 506/81 The panel dId not reVIew the contents ofMs MIskelly's personnel file, mcludmg her perfomiance appraIsals Overlookmg the gnevor's performance appraIsal as servIce representatIve IS partIcularly troublesome, gIven the panel's concerns about her commUnICatIOns skIlls and mteractIOn wIth members of the publIc The panel dId conduct a reference check as reqUIred, but the questIOn asked about the manager ever receIvmg any complamts IS problematIc It faIled to dIstmgUIsh between those complamts regarded by the manager as SIgnIficant or valId and those not so regarded. Indeed, one of the complamts mentIOned by Ms Sutherland, and apparently relIed upon by the panel, turns out not to have been SIgnIficant m her mmd. In addItIon, askmg about complamts, but not about posItIve comments, IS lIkely to produce an mcomplete pIcture The panel was entItled to weIgh the manner m whIch the gnevor behaved at the mtervIew, so long as they recognIzed the mtervIew Itself was not a work settmg, and so long as they gave due conSIderatIOn and 9 appropnate weIght to the way she had conducted herself on the Job They faded to properly consIder and weIgh her Job performance III Is Ms MIskelly "relatIvely equal" to the hIgher scormg candIdates? The eVIdence mdlcates the panel dId not VIew her m thIS way, even at the early stages of the process She would have been Judged relatIvely equal, If the Judgement had been based exclusIvely upon the substance of her answers at the mtervIew, as reflected m the numencal scores The panel members assessed both substance and form munedlately after the mtervIew, even though a numencal score was assIgned only to substance Based upon the combmatIOn of the mtervIeW and the reference check, the panel deducted ten marks for customer satIsfactIOn and four marks for commumcatIOn. Such deductIOns do not seem mappropnate gIven the mformatIOn possessed by the panel The resultmg scores led the panel to conclude the gnevor fell outsIde the zone of relatIve equahty The problem IS the mformatIOn m the hands of the panel was madequate for a proper assessment. Does the more complete pIcture whIch emerged at the heanng place Elame Miskelly wlthm the zone of relatIve equahty? The answer IS no Ms MacDonald's testImony about the gnevor's mtervIew IS supported by Ms Charette's contemporaneous notes As to performance on the Job, the gnevor's appraisal as servIce representatIve was not entered m eVIdence by the umon. In her testImony, she descnbed all of her appraisals m general terms and made no comment specIfically about the one relatmg to her work as a servIce representatIve Ms Sutherland testIfied the gnevor spoke qUlckly and loudly on the Job Cross-exammed about the comment made dunng the reference check, about the gnevor bemg eXCItable 10 ~ and possIbly mtImIdatmg the taxpayer, the manager conceded thIS was her charactenzatIOn and not anyone else's, but she dId not retract It. Ms Sutherland had ample opportumty to overhear the gnevor workmg on the telephone I am satIsfied the manager's assessment was based upon her own observatIons and not merely upon the two complamts receIved. The eVIdence as a whole mdIcates some cause for concern about the degree to whIch Ms Miskelly possessed the mterpersonal and commumcatIOns skIlls reqUIred for the Job of field servIces officer For the reasons gIven by Ms McDonald, I conclude thIS posItIOn makes greater demands upon such skills than does the Job of surveIllance clerk. There IS no eVIdence about other candIdates, m partIcular none mdIcatmg cause for concern about theIr mterpersonal and commumcatIOn skills In sumrhary, the umon has faIled to dIscharge the burden of provmg the gnevor was relatIvely equal to the successful applIcants IV What IS the appropnate remedy for the procedural VIOlatIOns descnbed m Part II above? The umon suggests the gnevor should be appomted as a field servIces representatIve, because both of the successful candIdates have moved on from thIS pOSItIOn. One of the Jobs IS entIrely vacant and the other IS bemg filled on an actmg baSIS As the umon notes, thIS context precludes the procedural remedy of a second competItIOn among the gnevor and the candIdates who won the first competItIOn. The umon relIes upon two deCISIOns appomtmg a gnevor to the Job sought. In OPSEU (Savarzmuthu) and Ministry of Health, dated Feb 6, 1992, GSB FIle No 2707/90, Mr DIssanayake concluded the panel VIewed the gnevor as relatIvely equal to the successful candIdates at the end of the 11 IntervIew process Based upon the eVIdence adduced at the heanng, Mr DIssanayake concluded the subsequent reference checks contaIned nothIng to dIsturb the earlIer findIng of relatIve equalIty The Job was awarded to the gnevor because he was relatIvely equal to the other candIdates and had more semonty In the case at hand, the eVIdence does not demonstrate Ms Miskelly to be relatIvely equal to the candIdates wIth hIgher scores The other case upon WhICh the umon relIes IS OPSEU (Napoleone) and Ministry of Government Servzces, dated October 5,1993, GSB FIle No 2712/91 In that case, the panel faIled to consIder an appraisal of the gnevor's performance In a Job wIth dutIes almost IdentIcal to the one beIng sought In the competItIOn. The only "sIgmficant dIfference" concerned one duty WhICh compnsed five to ten percent of hIS current Job and twenty percent of the Job posted. The appraisal was entered In eVIdence and descnbed hIS work as "excellent" and "exceptIOnal" Mr Gorsky wrote We can only conclude there was a lack of completeness on the part of the panel In carryIng out ItS oblIgatIOns under the collectIve agreement to evaluate the qualIficatIOns and abIlIty of the applIcants If they had done so, they could only have concluded that the grzevor was relatzvely equal In qualIficatIOns and abIlIty to [the successful candIdates] [The gnevor] was the only person to gneve the competItIOn, and for the reasons above stated, we order that he be awarded the pOSItIon Because of the length of tIme that has elapsed SInce the pOSItIOns were awarded, we do not regard thIS as an appropnate case to order a re-run of the competItIOn. (page 19, emphasIs added) The performance appraisal overlooked by the panel was VIewed by Mr Gorsky as shOWIng the gnevor to be relatIvely equal to the successful candIdates In thIS findIng of relatIve equalIty lIe "the reasons above stated" whIch formed the baSIS for awardIng the Job to the gnevor The tIme lapse 12 --- between the postmg and the GSB decIsIOn, an mterval of two years, was part of the reason for awardmg the Job to the gnevor, but not the only reason. Another decIsIOn produced by the umon, OPSEU (Wright/Wasky) and Minzstry a/Health, dated Feb 16,1994, GSB FIle No 1832/91, demonstrates the passage of tIme alone IS not a sufficIent reason for awardmg aJob m the absence ofa findmg of relatIve equalIty Faced wIth an mterval of almost three years between postmg and decIsIOn, Mr Watters ordered a new competItIOn be carned out. In summary, the umon has cIted no authonty for the proposItIOn that awardmg a Job IS an appropnate form of relIef m the absence of a findmg of relatIve equalIty In my VIew, such relIef IS not warranted m thIS context because there IS no adequate basIs for predlctmg; whether the gnevor would have won the competItIOn If It had been conducted properly The umon has suggested no other form of relIef In the umque CIrcumstances of thIS case, I award the followmg remedIes (1) a declaratIOn that the competItIOn process was flawed m the manner descnbed m Part II of thIS decIsIOn, and (2) an order dlrectmg the employer, at the gnevor's optIOn, to consIder her as a candIdate m any Job competItIOn for the two posItIons vacated by the successful applIcants m the last round, regardless of whether she already has mIssed any tIme lImIt concernmg applIcatIOns for those posItIOns RIchard M. Brown, V Ice-Charr Ottawa, Ontano March 4, 1999 13