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Home My WebLink About1998-1999.Group Grievance.00-09-25 Decision 1 - .: .">.'~~.?i:0-fh-i4"';i' : ~~~&1i"': .:.',~ +W~ '..: ~.:~o):. ".::-. ..:.;~:~~f.~~~~~ ..":.;"Y \& '.' . . .. GSB # 1999/98 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINNG ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Ontano Pubhc ServIce emplovees Dmon (Group Gnevance - A. Stewart/D Stevenson/D Wichar/L Stevenson) Grievor and The Crown m RIght of Ontano (Mimstry of SOhCItor General & CorrectIonal ServIces) Emplover Before: Damel Hams Vice Chmr For the John Brewm Grievor Labour RelatIons Consultant Rvder Wnght Blmr & Dovle BarrIsters & So hCItorS For the Mary Pat Moore Employer Counsel Legal ServIces Branch Management Board Secretanat Hearinl! September 15 2000 2 DECISION THE PROCEEDINGS. These matters mvolve a Job competItIOn for the posItIOn of mmate records clerk at the Northern Treatment Centre m Sault Ste Mane Four members of OPSEU have gneved that the competItIOn was not run fairly ThIs mtenm decIsIOn deals wIth a request by the umon that the Issues at the heanng be bIfurcated such that the Board would first determme whether the employer had failed to reVIew the expenence and work performance of the gnevors In essence, the Umon says that the employer relIed only on the pomt scormg of the mtervIews wIth the candIdates Such a lImIted consIderatIOn of the candIdates was said to be a fatal procedural flaw that vItIates the Job competItIon, IrrespectIve of the final pomt spread between the gnevors and the successful candIdate THE FACTS. The partIes agreed on the followmg facts 1) The matter IS proper!, before the Gnevance Settlement Board and the Gnevance Settlement Board has JUrIsdICTIOn. 2) The CollectIve Agreement With respect to Workmg COndITIOnS and Emplovee Benefits between Management Board of Cabmet and the Ontano PublIc ServIce Emplovees Umon, dated Januan 1 1994 and December 31 1998 was m effect at the tIme of the gnevance 3) At the TIme of the gnevance, the gnevor Ms Deborah Stevenson was classIfied as Inmate Records Clerk. at Sault Ste Mane Jail, the gnevor Ms Anne Stewart, was on secondment to the Mimstn of CommunI~ and SOCIal ServIces as an 3 Income Mamtenance support staff from her classIfied home posItIOn as Records Clerk. for the Pam Sound JaIl, the gnevor Ms Debra Wiwchar was claSSIfied as SupervIsor Inmate Records SupervIsor at the Sault Ste. Mane Jail and the gnevor Ms. Lmda Stevenson was clasSIfied as a Trust/Canteen Clerk. for Inmate Records at the Saul Ste. Mane Jail. The Mimsm of SolICItor General and CorrectIOnal ServIces emploved these gnevors at the TIme of the gnevance. 4) The OppOrtunI~ Bulletm Gob postmg) for the Records SupervIsor (OAG-ll) at Northern Treatment Centre was adverTIsed on Juh 20 1998 With a closmg date of Jul, 31 1998 (Cop, attached. Also at Tab 1 m Emplover's Book. of Documents) 5) The successful candIdate m the cOmpeTItIOn SGCS 5045-98 for Records SupervIsor at the Northern Treatment Centre was Mal) Ellen Thompson. At that tIme, she was an Accounts Pavable/ReceIvable Clerk. With the Northern Treatment Centre. 6) There were rune applIcants to the competItIOn of whom 8 mcludmg Ms Thompson, Ms D Stevenson, Ms Stewart, Ms Wiwchar and Ms. L. Stevenson were mtervIewed b, the seleCTIon panel. 7) The seleCTIon panel members for thIS competITIOn were Ms Sue Monn, Office Manager Northern Treatment Centre, Mr Peter EllIS, RecreaTIon Manager Northern Treatment Centre and Ms NarchIeka MacRae, a Human Resources consultant (acTIng), Northern RegIOn Office, Mirusm of CorrecTIonal ServIces 8) The selectIOn of Ms. Thompson for tills vacanc, IS the subJect of Ms. D Stevenson, Ms Stewart, Ms Wiwchar and Ms L. Stevensons' gnevance. THE SUBMISSIONS OF THE PARTIES The umon Said three Issues anse m thIS case The first IS that the gnevors, m partIcular Debra WIwchar, had vastly supenor expenence to the successful candIdate Ms WIwchar was also Said to have had well above average Job performance ratmgs m her ten years domg the IdentIcal Job at the Sault Ste Mane Jail The Job competItIOn process scored the candIdates on the baSIS of an mtervIew as well as wntten questIons and answers There was Said to be no mqUIry mto the expenence of the candIdates, reVIew of Job performance appraisals nor mqUIres of the candIdates' supervISors The second Issue IS that of biaS The 4 umon wIll call eVIdence to establIsh that there was mappropnate, dIrect managenal mterference m the process that gave unfarr advantage to the successful candIdate Fmally, the umon will call eVIdence regardmg the relevance of the questIOns asked and will challenge the propnety of the weIght gIven to the questIOns and answers The umon submItted that If It IS successful m provmg ItS assertIOns on the first Issue, the employer's failure to look beyond the mtervIews of candIdates IS fatal to the process and wIll reqUIre, m the very least, the rerunnmg of the competItIOn on terms set by the Board. In that event, there would be no need to mqurre mto the other two Issues, savmg both tIme and the need to explore the allegatIOns of bias that wIll mevItably cause senous damage to the work envIronment. The unIOn relIed on the followmg authontIes OPSEU (Leslie) and Ministry of Transportation and Communications, 126/79 (Draper), OPSEU (Quinn) and Ministry of Transportation and Communication, 9/78 (Pnchard), Re OPSEU (MacLellan and DeGrandisl & Ministry of Government Services, 506/81 (Samuels), OPSEU (Nixon) andMinistry of Transportation, 2418/87 (FIsher), OPSEU ~'lauve) and Ministry of Transportation, 1695/91 (Gray), OPSEU ~Wephens) and Ministry of Community and Social Services, 147/94 (DIssanayake), OPSEU (Alam) and Ministry of Community and Social Services, 140/84 (Roberts) 5 The Employer submItted that a full exammatIOn of the eVIdence wIll show that any actual deficIencIes m the process would not have altered the result. That IS, the overall qualIty of the competItIOn process led to a fair result. SpecIfically, the candIdates were evaluated on the relevant qualIficatIOns as set out m the posItIOn specIficatIOn, the methods used to assess the candIdates were valId m testmg the relevant qualIficatIOns, no Irrelevant factors were consIdered and the employer accumulated mformatIOn m a systematIc way concernmg all the applIcants Further, the prevIOUS expenence of the applIcants was consIdered m that prevIOUS expenence m an mmate records posItIon was reqUIred m order to get an mtervIew Further, It Said that there was no eVIdence that there were performance appraisals m the candIdates' files The employer said that It would be put at a dIsadvantage If the Issues were bIfurcated because the fairness of the Job competItIOn process can only be assessed on the totalIty of the eVIdence The employer relIed on the followmg authontIes Re OPSEU (MacLellan and DeGrandis) & Ministry of Government Services, 506/81 (Samuels), OPSEU ~'ltrazds) and Ministry of Natural Resources, 88/83 (JolIffe), OPSEU ~'limmons) and Ministry of Government Services, 213/83 (McLaren), OPSEU ~'laras) and Ministry of Labour, 457/85 (Swan) REASONS FOR DECISION. 6 In decIdmg whether to bIfurcate proceedmgs the Board seeks to maXImIze efficIency m the heanng process If the early resolutIOn of an Issue may be dIsposItIve of the matters before It, then bIfurcatIOn IS a useful proceedural tool, provIded there IS no unfairness to any party m followmg such a procedure Job competItIOn gnevances heard m full generally mvolve a thorough reVIew of the dutIes and responsibIlItIes of the contested posItIOns agamst the skills, abIlItIes and semonty of the candIdates, mcludmg the successful mcumbent. That mqUIry IS often lengthy Here there are five mdIvIduals mvolved. In these matters the umon also alleges that there was mappropnate conduct by a manager that favoured the mcumbent. As submItted by the unIOn, that mqUIry wIll mvolve allegatIOns that may have a long-lastmg, negatIve Impact on workmg relatIOnshIps In the CIrcumstances of thIS case, the unIOn says that the alleged procedural defects m the job competItIOn process may result, m and of themselves, m the vItIatmg of the competItIon. There IS Said to be ample junsprudence of the Board supportmg the proposItIOn that relIance on candIdate mtervIews wIthout addItIonal, specIfic consIderatIOn of the expenence and performance of the candIdates may be fatal to the job competItIOn process The oft cIted case of MacLellan and DeGrandis synthesIzed the prevIOUS Board junsprudence as follows 7 The JUrIsprudence of thIS Board has establIshed vanous cntena b, willch to Judge a selectIOn process 1) CandIdates must be evaluated on all the relevant qualIficatIOns for the Job as set out m the POSITIOn SpecIficaTIon. 2) The vanous methods used to assess the candIdates should address these relevant qualIficaTIons msofar as IS possible. For example, mtervIeW questIOns and evaluaTIon forms should cover all the qualIficaTIons 3) Irrelevant factors should not be conSIdered. 4) All the members of a selectIOn COmmIttee should reVieW the personnel files of all the applIcants. 5) The applIcants' supervISors should be asked for theIr evaluaTIons of the applIcants 6) InformatIOn should be accumulated m a svstemaTIC wa, concernmg all the applIcants See Remarh., 149/77 Qumn, 9/78 Hoffman, 22/79' Ellsworth et aL 361/80' and Cross, 339/81 The gUldelmes laid down m MacLellan and DeGrandis have been followed m numerous subsequent matters before the Board and are well known to the partIes However, they have not been taken to be a lIst of essentIal elements The cases relIed upon by the employer m the mstant matters are examples of Job competItIons that were found to meet the appropnate standard of fairness notwIthstandmg vanous flaws m the process In A/am (140/84) the Issue was summanzed as follows Sumrnmg up then, It IS the conclUSIOn of the Board that willie thIS cOmpeTItIOn was, m some respects, flawed, It was not fatalh flawed. As IS well establIshed m the JUrIsprudence of the Board, Job compeTITIons must be evaluated m a realIstIC lIght; the, need not achIeve perfeCTIon m order to pass the scruTIn, of the Board. So, for example m Re Saras and the Mirusm of Labour (1987) GS.B #457/85 (Swan), the Board concluded that a seleCTIon process as a whole was not unfaIr nor calculated to lead to an mcorrect result despIte the fact that the panel dId not look. at the complete personnel files of the candIdates, the sconng was b, consensus and there were mcorrect assessments of the attendance records and communICaTIOnS skills of the gnevor and the successful mcumbent. In Re SImmonds and the Mimsm of Government ServIces (1983), GS.B #213/83 (McLaren), the Job compeTITIon passed scruTIn, despIte the face that there was no consultaTIon of personnel files, no consultaTIon With supervIsors and consensus sconng. In Re Starzds and Mimsm of Natural Resources (1983), GS.B #88/83 (JollIffe), a Job competITIOn was upheld despIte flaws sanilar to those found m SImmonds supra. 8 The Issue at thIS stage of the proceedmgs IS whether there are any efficIencIes to be obtamed m proceedmg first to consIder the procedural fairness of the Job competItIon, as framed by the umon's first Issue As set out above, efficIencIes may only be consIdered where there IS no compromIse of procedural fairness and natural JustIce before the Board Itself Here, there IS no bnght lme that realIstIcally dIvIdes the eVIdence between the Issue of procedural fairness relatmg to consIderatIon of the gnevors' work performance and expenence m IsolatIon from the other aspects of the Job competItIOn process m these matters The eVIdence relatmg to the Issues of procedural fairness raised by the umon's first Issue IS not so obvIOusly dIstmct as to permIt It to be easIly marshaled separately In my VIew there IS great potentIal for the heanng to bog down mto dIsagreement over what eVIdence IS and IS not relevant to the proposed cIrcumscribed Issues Further, It IS the overall Job competItIOn process that IS under scrutmy As set out mAlum, and the cases therem referred to, flaws found m one or more areas may not be matenal when the entIre process IS consIdered. It IS not possible to fairly reVIew the process m thIS case wIthout lookmg at It m ItS entIrety Indeed for the Board to do less than reVIew all of the cntena set out m MacLellan would be a less ngorous reVIew than It WIll reqUIre of the employer m the first mstance Accordmgly, the balance of convemence m these matters favours heanng all the eVIdence on all the Issues as m the normal course 9 DECISION The umon's request to bIfurcate the Issues IS demed. Dated at Toronto thIS 25th day of September, 2000 _.~ .. Damel HarrIs, V Ice-Chair