HomeMy WebLinkAbout1998-1999.Group Grievance.02-03-01 Decision
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_Wi iii~~~i~T DE L 'ONTARIO
COMMISSION DE
REGLEMENT
"IIIl__1I'" BOARD DES GRIEFS
Ontario
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GSB#1999/98
UN ION#99A255
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Group Grievance)
Grievor
-and-
The Crown In Right of Ontario
(Ministry of Correctional Services)
Employer
BEFORE Daniel A. Harns Vice-Chair
FOR THE GRIEVOR John Brewln
Labour Relations Consultant
clo Ryder Wright Blair & Doyle
Barnsters & SoliCitors
FOR THE EMPLOYER Mary Pat Moore
Counsel, Legal Services Branch
Management Board Secretariat
HEARING November 9, 10,2000, May 17, 18 and 31,2001,
June 1,21,22,28 and 29,2001, July 6 and 16, 2001
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AWARD
THE PROCEEDINGS.
ThIs award deals wIth aJob competItIOn held by the Northern Treatment Centre
(hereafter "NTC") of the MmIstry of CorrectIOns The NTC IS located m Sault
Ste Mane,Ontano The Job at Issue IS the SupervIsor of Inmate Records The Job
was awarded to Mary Ellen Thompson out of a field of eIght. She was the semor
apphcant. Four mdIvIduals have filed gnevances, bemg, Deborah Stevenson.
Lmda Stevenson, Anne Stewart and Debra Wiwchar The Job competItIOn was
held m September 1998 The heanngs mto the matter took eleven days spannmg
the penod from November 10,2000 to July 16,2001 The mcumbent was gIVen
notIce of the proceedmgs and an opportumty to partIcIpate For part of the heanng
she was III and unable to attend. She was content to absent herself wIthout
formally requestmg an adjournment.
THE FACTS.
Background
Generally speakmg, provmcIal correctIOnalmstItutIOns are resIdentIal facIlItIes
that hold mdIvIduals under the authonty of JudIcIal dIrectIves Those dIrectIves
may be of an mtenm nature such as warrants of arrest or remand orders and the
like They may also be of a final nature such as certIficates of convIctIOn. The
SupervIsor, Inmate Records, IS charged wIth the responsibIhty of revIewmg the
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"record" of each mmate as they enter and leave the mstItutIOn to ensure that they
are lawfully held and lawfully released. EIghty percent of the SupervIsor's dutIes
are dIrectmg the actIvItIes of the Inmate Records sectIOn bY'
- ensunng that all mmates are legalh admItted, detamed and/or dIscharged,
utilIzmg the OMS svstem, venfvmg that all warrants, AIS cards, medIcal forms,
fingerpnnt reports and other documents are completed m accordance WIth
establIshed dIrectIves, procedures and practIces,
- computmg more complex fines and sentences amendmg release dates to confirm
WIth mterruptIOns m sentences performmg accountmg functIOns for all fines
collected and mmate trust accounts
- mamtammg Personal Propert, Sheets and arrangmg the storage of mmate s
personal effects as reqUIred,
- provIdmg adVIce and consultatIOn to mstItutIOnal managers on sentence
calculatIOns and mterpretatIOns
- lIaIsmg WIth mstItutIOnal managers, provmcIal bailIffs, federal offiCIals, polIce
probatIOn and parole re mmate transfers, dIscharges, outstandmg charges, etc
The remammg twenty percent of the SupervISor's dutIes are more dIrectly
"supervISOry" or group leadershIp m nature, beanng m mmd that the pOSItIOn IS a
bargammg umt pOSItIOn claSSIfied as an OAG 11 Those group leadershIp dutIes
are as follows
- provIdmg trammg and gUIdance to Inmate Records Clerk m all aspects of
completIOn, mamtenance and control of mmate records explammg new and
eXIstmg procedures as necessan
- establIshmg work pnontIes and aSSIgnments to meet approved standards and
reqUIrements of the mstItutIOn,
- checkmg fine and sentence calculatIOns provIdmg aSSIstance on complex
calculatIOns and/or SItuatIOns
- ensunng mamtenance of all pertment mmate records and files to approved
standards and reqUIrements
- IdentIfvmg problems and followmg up WIth correctIve actIOn as reqUIred
- performs other dutIes as aSSIgned
4
The semonty dates of the five employees mvolved m thIS htIgatIOn are as follows
Mary Ellen Thompson - July 9, 1979
Debra Wiwchar - February 25, 1980
Lmda Stevenson - May 6, 1985
Anne Stewart - June 22, 1987
Deborah Stevenson - February 26, 1990
At the tIme of the Job competItIOn, theIr resumes mdIcated that they held the
followmg posItIOns and related quahficatIOns
Mary Ellen Thompson was the accounts payable/receIvable clerk at the NTC She
had completed cross-trammg m the mmate records sectIOn of the NTC She also
had tramed as, and acted as, a Group Leader wIth the Sudbury office of OHIP
between July 1979 and January 1986
Debra Wiwchar had been the Inmate Records SupervIsor at the Sault Ste Mane
JaIl smce February 1980 She had always worked mInmate records and had acted
as the JaIl's Office Manager from August 1997 to January 1998 The Office
Manager IS outsIde the bargammg umt and the dutIes mclude the supervIsIOn of
personnelm Inmate records
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Lmda Stevenson was the Trust/Canteen Clerk m the Records Department of the
Sault Ste Mane JaIl. She had worked for two penods (6 months/4 months) as the
Young Offenders Records Clerk.
Anne Stewart was the Record's Clerk at the Parry Sound JaIl and had been smce
1986
Deborah Stevenson was the Records' Clerk at the Sault Ste Mane JaIl and had
been smce July 1992 She also had expenence filhng m for the Record's
SupervIsor at the JaIl.
At first blush It IS apparent that the gnevors had sIgmficantly more dIrect mmate
records expenence than dId the successful candIdate Another background factor IS
that the Sault Ste Mane JaIl IS slated to close Three of the gnevors worked at the
Jail. The fourth gnevor, Anne Stewart was temporanly assIgned to the MmIstry of
Commumty and SocIal ServIces as mcome mamtenance support staff at the tIme
of her apphcatIOn for the Record's SupervIsor posItIOn. She too has faced Job
dIslocatIOn as a result of the vanous reorgamzatIOns at play wIthm the MImstry
Fmally, the NTC IS an mmate treatment facIhty As such, It had had both federal
and provmcIalInmates By and large, the Inmates at the Northern Treatment
Centre would be transfernng from and returnmg to some other correctIOnal
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mstItutIOn. In a Jail settmg there would generally be a greater turnover of Inmates,
many of whom were gomg to and from court or bemg released from custody eIther
on a temporary or permanent basIs
The CompetItIOn Process
The process for selectmg the NTC Records SupervIsor first mvolved a screemng of
apphcants for mtervIew Nme people apphed and eIght were gIVen mtervIews The
mtervIew was conducted by a three person panel composed of the Office Manager of
the NTC, Sue Monn, the Human Resources Consultant responsible for the Northern
Treatment Centre, Narshika McCrae and Peter EllIs, the RecreatIOn
Manager/Mamtenance Manager at the NTC The oralmtervIew was a standard form
of scnpted questIOns wIth scores gIVen m accordance wIth the extent to whIch each
candIdate gave what was consIdered to be the Ideal response Fmally, each candIdate
was gIVen a wntten test to complete
The mtervIew process took place Wednesday, September 9, 1998 at the NTC The
mtervIews were scheduled to take place at 45-mmute mtervals When a candIdate
completed theIr oralmtervIew they began the wntten test m another room. As
each candIdate arrIved from theIr oralmtervIew, the pnor candIdate was reqUIred
to cease theIr wntten test. Over the course of the day the mtervIew team ran late
Accordmgly, It IS not possible to say wIth any precIsIOn how long each candIdate
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had to wnte the test. It IS certam that there was not a consIstent tIme standard
Imposed upon all the candIdates Noone was able to fimsh the wntten test.
The scores of the candIdates were as follows
Total Wntten Test Score Average
Mary Ellen Thompson 484 40 1613
Debra Wiwchar 346 40 1153
Lmda Stevenson 318 31 106
Anne Stewart 357 33 119
Deborah Stevenson 3935 49 131.2
The total scores were arrIved at by addmg the wntten test score to the scores gIVen
by each of the members of the mtervIew team. Those three scores were then added
together to reach the total. The average score sImply averages the totals of the
three mtervIewers On ItS face, the wIde gulf between the mcumbent and the
gnevors IS mcongruous, gIVen the gnevors' apparently greater mmate records
expenence
AddItIOnal details of the oralmtervIew and wntten test are dIscussed below The
employer's WItnesses mcluded Sue Monn, Narshika McRae, Peter EllIS, Claudette
Raymond, Mike Byrne and Mary Ellen Thompson. The umon' s WItnesses
mcluded Debra Wiwchar, Deborah Stevenson, Anne Stewart and LOIS Conyers
8
Lmda Stevenson dId not testify The partIes also made extensIve submISSIOns m
closmg argument. Suffice It to say that the Board has carefully consIdered the
eVIdence and the submIssIOns of the partIes regardmg the Issues before It.
Reference IS made to those matena1s as reqUIred m the Reasons that follow The
partIes rehed upon the followmg authontIes
Stewart D StevensonWiwchar L.Stevenson, 1999/98 (HarrIs),
MacLellan DeGrandis, 506/81 (Samuels), Simmons, 213/83 (McLaren), Strazds,
88/83 (JollIffe), Marek, 414/83 (Samuels), Sedore, 250/83 (Dehs1e), Callo,
1522/85 (FIsher), Saras, 457/85 (Swan), Skagen Glemnitz, 1934/87 (Spnngate),
Bent, 1733/86 (FIsher), McCaig, 191/88 (FIsher), Laforest, 1983/87 (Roberts),
Lee Savarimuthu 1344/88 (Roberts) Mountain Barrell MacLellan, 629/89
(FIsher), Palatino Ragos Patterson, 1968/89 (Kaplan), Hall Powers, 716/89
(Gorsky), Coulter Charleau, 1395/88 (Watters), Sauve, 1695/91 (Gray),
Britton, 701/93 (Fm1ey), Vipari P003394(PSGB -Lynk), Cordileone Jamieson,
1228/94 (FIsher), Anderson et ai, 1677/93 (DIssanayake), Netta et ai, 1404/97
(Mikus)
REASONS FOR DECISION
Job competitIOn gnevances provIde a partIcular challenge to the exerCIse of the
Board's JunsdIctIOn. It IS neIther the Board's role, nor desIre, to mIcromanage the
selectIOn of candIdates for posted posItIOns Nonetheless, the collectIve agreement
9
lays down the agreed upon cntena for promotIOn wIthm the ranks ArtIcle 6 3 1
sets out the cntena, and It reads as follows
6.3 1 In fillmg a vacanc, the Emplover shall gIve pnman consIderatIOn to
quahficatIOns and abIht, to perform the reqUIred dutIes Where quahficatIOns
and abIht, are relatIveh equal, semonn shall be the decIdmg factor
In the mstant gnevances the Umon alleges that there was neIther a fair nor pnmary
consIderatIOn of the "quahficatIOns and abIhty to perform the reqUIred dutIes" of
the pOSItIOn of Inmate Record SupervIsor
In some measure the Board's supervIsory role has become comphcated by ItS well-
estabhshed approach. Generally speakmg, the Board has laId down a catalogue of
consIderatIOns to whIch the employer must refer m order to fulfill ItS obhgatIOn to
gIVe "pnmary consIderatIOn to quahficatIOns and abIhty to perform the reqUIred
dutIes" The foundatIOn case IS McLellan and DeGrandis at pages 25-26
The Junsprudence of thIs Board has estabhshed vanous cntena by whIch to Judge a
selectIOn process
1) CandIdates must be evaluated on all the relevant quahficatIOns for the Job
as set out In the POSItIOn SpeCIficatIOn.
2) The vanous methods used to assess the candIdates should address these
relevant quahficatIOns Insofar as IS pOSSIble For example, mtervIeW questIOns
and evaluatIOn forms should cover all the quahficatIOns.
3) Irrelevant factors should not be conSIdered.
4) All the members of a selectIOn commIttee should reVIew the personnel files
of all the apphcants
5) The apphcants' supervIsors should be asked for theIr evaluatIOns of the
applIcants.
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6) InformatIOn should be accumulated m a systematIC way concernmg all the
applIcants.
The comphcatmg factor IS that the Board has been cogmzant of the futIhty of
Imposmg rote obhgatIOns m speCIfic cases, where such conSIderatIOns would have
no effect on the outcome Accordmgly, m some measure, the Board antIcIpates
the efficacy of the remedy when consIdenng whether there has been a breach of
ArtIcle 6 3 1 The Board has taken a reahstIc approval such as m A/am (140/84)
cIted m the prehmmary decIsIOn m the mstant matters dated September 25,2000 at
page 7
Summmg up then, It IS the conclUSIOn of the Board that whIle thIS competItIOn was, m
some respects, flawed, It was not fatalh flawed. As It well estabhshed m the
Junsprudence of the Board, Job competItIOns must be evaluated m a reahstIc hght; the,
need not achIeve perfectIOn m order to pass the scrutm, of the Board. So for example m
Re Saras and the Mimstn of Labour (1987) G S.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 ofthe
candIdates, the sconng was b, consensus and there were mcorrect assessments of the
attendance records and commumcatIOns skIlls of the gnevor and the successful
mcumbent. In Re SImmonds and the Mimstn of Government ServIces (1983) G S.B
#213/83 (McLaren) the Job competItIOn passed scrutm, despIte the face that there was
no consulatIOn of personnel files, no consultatIOn WIth supervIsors and consensus sconng
In Re Starzds and Mimstn of Natural Resources (1983) G S.B #88/83 (Jolhffe) aJob
competItIOn was upheld despIte flaws SImilar to those found m SImmonds, supra
The resultmg procedure IS that the Board IS mVIted to VIew mIcroscopIcally the Job
competItIOn process put before It m order to make detenmnatIOns that are properly
the scope of management. That IS, promotIOn wIthm the ranks of employees An
example of such an approach IS Sarras at page 13
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In the result, whIle we ma, not be happ, wIth everythmg that happened m the course of
the selectIOn, we have come to the conclUSIOn that the process as a whole was not unfaIr
nor was It calculated to lead to an Incorrect result. We have also concluded that, on a
somewhat larger bod, of eVIdence placed before us at the heanng, and on an ObjectIve
baSIS, Ms PansIen was m fact better quahfied for the specIfic Job at Issue than was the
gnevor
The Board, havmg made a detailed mqUIry mto the competItIOn process IS
generally left WIth the polanzed remedIal chOIces of ordenng that the competItIOn
be re-run or of usurpmg management's role by placmg the gnevor mto the Job
The alternate chOIce IS to mamtam the status quo That latter optIOn IS reached by
eIther dIsmIssmg the gnevance because there was no breach of artIcle 6 3 1, or by
agam usurpmg management's role by decIdmg, m the Board's own WIsdom, that It
would make no dIfference to the outcome If there was a complete consIderatIOn of
the quahficatIOns and abIhty to perform the reqUIred dutIes
The dIchotomy mherent m such cases as these IS the tenSIOn between process and
outcome Employees are entItled under artIcle 6 3 1 to a fair assessment of theIr
quahficatIOns and abIhtIes to perform the pOSItIOn. That IS, a fau process The
Board's role IS to determme whether or not the process was fair For those reasons
It IS necessary to hear all of the eVIdence and assess the entIre process The
Board's strIctness WIth respect to the matters that must be consIdered IS not to be
seen as a formula, the failure to follow whIch wlllmexorably lead to a remedy
Indeed the Umon m thIS case sought to have the Board take such a mechamstIc
approach at the outset. The Board's DeCISIOn m that regard was released
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September 25, 2000 However, the flexible and realIstic approach taken by the
Board m assessmg the outcome of Job competitIOns has undermmed the
authontatIve procedural reqUIrements It has laid down. Those observatIOns were
made forcefully m Marak (414/83) at pages 4-5
From the evidence at our hearing, it is clear that the decision to select the successful candidate was
made on the basis of the application forms and the interviews, without any recourse to personnel
files or candidates supervisors. The successful candidate had been doing the job involved for
three years on a contract basis and was well known by the interviewers. Indeed Mr Clark testified
that he had been told by his superiors that he could not consult personnel files, and it was his
practice never to call candidates supervisors. It is hard for this Board to understand how this
could occur, in view of the repeated direction this Board has given on the need to consult
personnel files and candidates supervisors, particularly when one of the candidates only is known
to the interviewers.
The dIrectIOns so often gIVen by the Board were Ignored m thIS case as well.
There can be no doubt that the employer used the resumes and covenng letters
solely for short-lIstmg the applIcants that would receIve mtervIews That was the
extent of the reference to the applIcants' on-the-Job expenence At the mtervIew
stage there were oral questIOns and a wntten test. There was no reVIew of
personnel files and there was no attempt to ask the applIcant's supervIsors for theIr
evaluatIOn of the applIcants' qualIficatIOns and abIlIties to perform the requIred
dutIes Reference checks were made only for the successful applIcant and the
runner-up
The employer relIed solely on the mtervIew questIOns and the wntten test m
makmg ItS selectIOn. The Board has commented a number of times on such a
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practice In Palatino et al (1968/89), Vice Chair Kaplan said the followmg at
page 45
We find that the Apphcant EvaluatIOn Cntena used b, the employer dId provIde the
employer WIth sIgmficant mformatIOn about the candIdates and about theIr skills, ablhtles
and knowledge We also find, however that the employer m thIS case rehed too heavih
on the mtervlew results The authontles are extremel, clear that the employer must not
reh soleh on mtervlews m Job postmg cases At the ven least the employer must also
conduct reference checks of all candIdates wIth ImmedIate supervIsors and reVIew all
apphcants personnel files Some reference checks were done m hIS case but onh for
those apphcants who made the short hst. The reVIew of personnel files was hmlted to the
two successful candIdates, and It was not dIrected at determmmg theIr quahficatIOns for
the posItIOns m questIOn, but at dlscovenng whether there was an,1hmg m the records
that affected theIr smtablhn for those posItIOns As was noted m the Woods case If the
employer rehes soleh on the mtervlew for makmg an assessment of candIdates It does so
at ItS penl.
IntervIews and tests are valuable tools m assessmg qualIficatIOns and abIlIty
However the Board has clearly stated that they ought not to be the only tools used.
That IS particularly so when the employer mIght easIly obtam on the Job
assessment from supervIsors VIce ChaIr Gray made the followmg observatIOns m
Sauve (1695/91) at page 19
The board has repeatedh observed that quahficatIOns and ablhtles should not be assessed
soleh on the basIs of an apphcant s performance dunng the selectIOn process Past Job
performance partlcularh of sImIlar Job functIOns, must also be consIdered and gIven
appropnate weIght. The Board has found ArtIcle 4.3 contravened when the selectIOn
commIttee rehed excluslveh or unduh on mtervlew results and gave too httle or no
weIght to past performance m assessmg quahficatIOns and ablht, Christmand and
Chaput 907/86 (Gandz) Skagen and Glemnitz, 1934/87 (Spnngate) Poole 2508/87
(Samuels) HallPoyt,ers 716/89 (Gorsk,) It IS not enough to treat past related
expenence as a basIs for pre-mtervlew screemng and Ignore It thereafter - past related
expenence must be gIven weIght m assessmg the relatIve quahficatIOns and ablhtles of
the final candIdates Nixon, 2418/87 (FIsher) McIlyt,ain, 628/89 (vent,)
Proper!, prepared and conducted tests ma, be used as part of the selectIOn process,
subject to the hmltatIOn that apphes to mtervlews the results of a test should not be
rehed upon to the exclusIOn of other eVIdence of the quahficatIOns and ablhtles whIch the
test IS desIgned to measure Moreover the selectIOn commIttee must be alert to the
possiblht, that a test whIch has not been vahdated, partlcularh a test whIch IS desIgned
b, persons who have no expertIse m test desIgn, mIght not rehabh measure what It IS
mtended or expected to measure When the test purports to measure a quahficatIOn or
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ablht, whIch evaluatIOns of past performance wIll also have measured, the evaluatIOns
must be gIven appropnate weIght, even (and, perhaps especlalh) when the test results
and evaluatIOns conflIct: se Hall Poyt, ers 716/89 (Gorsk,) at page 18
In an LCBO matter before Vice Chair Mikus the Board found that the employers
had arbItranly and umeasonably weIghted the mtervIews at 60% and the
performance appraisals at 40%. The failure of the employer to contact the
applIcant's supervIsors sounded agamst the employer Like the mstant case, long
servIce employees wIth expenence m the Job dId not perform well on the
mtervIew The Board said the followmg m Nette at pages 53 to 54
The final problem m the LCBO s process IS the weIght gIven to the mtervlew and the past
PAs It determmed that 40% would be allotted to the past PAs and 60% for the
mtervlews No ratIOnale was gIven for that welghtmg b, the LCBO and, m m, VIew It
does not seem reasonable m these CIrcumstances IntervIews can be a useful tool m
determmmg whether to make a Job offer to an apphcant. That IS especmlh true m the
case of apphcants new to the employer However m the mstant case the LCBO had a
hst of employees who were known to at least some store managers and who had been
appraised b, those store managers on at least two occaSIOns m the past. It would have
been eas, for the LBCO to ask these store managers about these employees To place
more weIght on the mtervlews than actual performance appraisals m these cIrcumstances,
m the absence of an explanatIOn, seems arbltran and unreasonable The results of the
mtervlews has proven that to be the case Long servIce employees who have been
performmg the essentIal dutIes of a CSR for years failed to achIeve a passmg mark on
theIr mtervlew Of the sIxteen who were offered posItIOns, onh three scored more than
50% on the mtervlew Of the fort, who passed the mltlal screenmg, onh SIX were rated
above 50%. It IS hard to Image how 40 employees who had been performmg the essentIal
dutIes of a CSR for a number of years could have failed an mtervlew for that ven Job It
suggests that the apphcants were scored on theIr ablht, to pass an mtervlew not on theIr
ablhn to perform the functIOns of a CSR. That ought to have been a sIgnal to the LCBO
that theIr process was flawed. It should have at least raised some questIOn about the
weIght It should ascribe to the mtervlew
For the reasons set out above the selectIOn process for these CSR vacanCIes cannot stand.
The LCBO dId not consIder all of the relevant factors m determmmg who should be
offered a permanent posItIOn. It had the mformatIOn but chose to Ignore It. It dId not
consIder relevant comments on the apphcants performance appraisals and, to the extent
It reduced those performance appraisals to a numencal figure purposefulh Ignored
mformatIOn favourable to the gnevors It rehed too heavlh on the mtervlew to the
candIdates detnment. It gave too much weIght to the mtervlew when It had more
15
complete and better sources of mformatIOn avaIlable to It. When the apphcants as a
group scored so poorh on the mtervlews, the LCBO ought to have reahzed how
maccurate the results were gIven the work hlston of the group
The conclusIOns reached by the panel of the Board m Palatina at page 48 are
applIcable m thIS matter The panel there had the followmg comments on the
employer's over-relIance on the mtervIew process
Havmg found a maJor flaw m the runmng OfthIS competItIOn, the next questIOn to be
addressed IS whether or not thIS flaw would have made a dIfference In our VIew the
results of the mtervlew ma, not have been an, dIfferent. To be fair the board was far
from Impressed wIth the eVIdence of Ms Palatmo and Mr Patterson about theIr
preparatIOn for the mtervlew To find, however that the result of the mtervlew ma, not
have changed does not necessanh mean that the gnevance should be dIsmIssed. There IS
even possiblht, that addItIOnal mformatIOn, gathered through reference checks and
through the reVIew of the candIdates personnel files and performance appraisals ma,
have resulted m a hIgher overall assessment of the dIfferent candIdates It ma, also have
resulted m a lower overall assessment. There IS realh no wa, ofknowmg, because
despIte the repeated dIrectIOns of thIS Board, the employer dId not conduct reference
checks of all the candIdates and dId not reVIew the personnel files of all the candIdates
On thIS basIs alone we are grantmg the gnevance A few addItIOnal observatIOns are
however m order
With these specIfic comments and the Board's general Junsprudence m mmd, I
turn now to consIder whether the mtervIew and wntten test fairly gave "pnmary
consIderatIOn to qualIficatIOns and abIlIty to perform the reqUIred duties" To be
clear, m the mstant case, like m Palatina, the gnevance IS allowed on the basIs that
the employer relIed only upon the mtervIews
The mtervIew consIsted of twenty questIOns The questIOns were accorded
varymg weIghts wIth a total possible score of 176 marks The wntten test was
made up of seven questIOns worth a total of 60 marks After all the mtervIews and
16
tests were complete, Sue Monn totaled the mtervIew scores from each of the panel
members She added to each score the mark obtamed on the wntten test. She then
added the three adJusted scores to obtam the aggregate scores of the mcumbent
and gnevors as follows
Mary Ellen Thompson 484
Deborah Stevenson 3935
Anne Stewart 357
Debra Wiwchar 346
Lmda Stevenson 318
The scores on the mdIvIdual questIOns are set out m the followmg charts
Mary Ellen
Thompson
Oral Interview Written Test
Ques. # Morin MacRae Ellis total average maximum
score
01 8 8 8 24 8 8 17
02 6 6 6 18 6 10 6
03 6 7 7 20 6 666667 8 10
04 8 9 10 27 9 12 3
05 5 5 5 15 5 8 4
06 8 8 8 24 8 12 0
07a 4 4 4 12 4 4 0
07b 2 2 2 6 2 2
07e 2 2 2 6 2 2
07d 4 4 4 12 4 4
08 4 4 4 12 4 6
09 5 5 5 15 5 8
010 6 6 6 18 6 6
011 10 10 10 30 10 10
012 8 8 8 24 8 10
013 6 6 6 18 6 6
014 7 7 7 21 7 10
015 4 4 4 12 4 7
016 5 5 5 15 5 10
017 5 5 5 15 5 8
17
018 4 4 4 12 4 4
019 0 0 0 0 0 15
020 2 2 4 8 2 666667 6
TOTALS 119 121 124 364 121 3333 176 40
written 40 40 40 60
TOTAL 159 161 164 484 236
Debbie Stevenson
Oral Interview Written Test
Ques. # Morin MacRae Ellis total average maximum
score
01 6 6 6 18 6 8 15
02 4 4 4 12 4 10 6
03 5 6 6 17 5 666667 8 4
04 4 35 4 11 5 3 833333 12 10
05 4 4 4 12 4 8 4
06 6 6 6 18 6 12 5
07a 2 2 2 6 2 4 5
07b 2 2 2 6 2 2
07e 2 2 2 6 2 2
07d 2 2 2 6 2 4
08 4 4 4 12 4 6
09 4 4 4 12 4 8
010 4 4 4 12 4 6
011 7 7 7 21 7 10
012 3 3 3 9 3 10
013 2 2 2 6 2 6
014 3 3 3 9 3 10
015 2 2 2 6 2 7
016 3 3 3 9 3 10
017 1 2 2 5 1 666667 8
018 4 4 4 12 4 4
019 3 3 3 9 3 15
020 4 4 4 12 4 6
TOTALS 81 82.5 83 246.5 82 16667 176 49
written 49 49 49 60
TOTAL 130 131.5 132 3935 236
18
Anne Stewart
Oral Interview Written Test
Ques. # Morin MacRae Ellis total average maximum
score
01 4 4 4 12 4 8 15
02 3 3 3 9 3 10 10
03 3 3 3 9 3 8 7
04 2 1 1 4 1 333333 12 1
05 5 5 5 15 5 8 0
06 8 8 8 24 8 12 0
07a 4 4 4 12 4 4 0
07b 2 2 2 6 2 2
07e 2 2 2 6 2 2
07d 2 2 2 6 2 4
08 6 6 6 18 6 6
09 6 6 6 18 6 8
010 4 4 4 12 4 6
011 1 1 1 3 1 10
012 5 5 5 15 5 10
013 4 4 4 12 4 6
014 7 7 7 21 7 10
015 2 2 2 6 2 7
016 4 5 5 14 4 666667 10
017 1 1 1 3 1 8
018 4 4 4 12 4 4
019 3 3 3 9 3 15
020 4 4 4 12 4 6
TOTALS 86 86 86 258 86 176 33
written 33 33 33 99 60
TOTAL 119 119 119 357 236
19
Debra Wiwichar
Oral Interview Written Test
Ques. # Morin MacRae Ellis total average maximum
score
01 0 0 0 0 0 8 15
02 4 4 4 12 4 10 10
03 2 2 2 6 2 8 9
04 2 2 2 6 2 12 5
05 4 4 4 12 4 8 1
06 8 8 8 24 8 12 0
07a 4 4 4 12 4 4 0
07b 2 2 2 6 2 2
07e 2 2 2 6 2 2
07d 2 2 2 6 2 4
08 4 4 4 12 4 6
09 4 4 4 12 4 8
010 2 2 2 6 2 6
011 2 2 2 6 2 10
012 3 3 3 9 3 10
013 2 2 2 6 2 6
014 2 2 2 6 2 10
015 3 3 3 9 3 7
016 3 3 3 9 3 10
017 7 6 6 19 6 333333 8
018 4 4 4 12 4 4
019 6 6 6 18 6 15
020 4 4 4 12 4 6
TOTALS 76 75 75 226 75 33333 176 40
written 40 40 40 60
TOTAL 116 115 115 346 236
20
Linda Stevenson
Oral Interview Written Test
Ques. # Morin MacRae Ellis total average maximum
possible
01 2 2 2 6 2 8 16
02 1 1 1 3 1 10 10
03 4 4 4 12 4 8 2
04 5 5 5 15 5 12 3
05 5 5 5 15 5 8 0
06 4 4 4 12 4 12 0
07a 4 4 4 12 4 4 0
07b 2 2 2 6 2 2
07e 2 2 2 6 2 2
07d 4 4 4 12 4 4
08 2 2 2 6 2 6
09 5 5 5 15 5 8
010 6 6 6 18 6 6
011 0 0 0 0 0 10
012 3 3 3 9 3 10
013 2 2 2 6 2 6
014 2 2 2 6 2 10
015 2 2 2 6 2 7
016 5 5 5 15 5 10
017 4 4 4 12 4 8
018 4 4 4 12 4 4
019 3 3 3 9 3 15
020 4 4 4 12 4 6
TOTALS 75 75 75 225 75 176 31
written 31 31 31 60
TOTAL 106 106 106 318 236
21
The Board has often remarked that candIdates must be evaluated on all the
relevant qualIficatIOns for the Job as set out m the posItIOn specIficatIOn and
Irrelevant factors should not be consIdered. Vice Chair FIsher let fall the
followmg m Bent (1733/86) at pages 10 and 11
It IS not the dun of thIS Board to conduct a mIcroscopIC dIssectIOn of each and even
questIOn put forward b, a selectIOn commIttee WIth respect to the degree of dIfficult, nor
does thIS Board mtend to do so It appears to the Board that these questIOns were related
to the Job m questIOn, that IS, the, asked questIOns m rough proportIOn to the
reqmrements of the Job and wIth respect to tOpICS mvolved m the daih operatIOn of the
Job In fact, the gnevor admItted on cross-exammatIOn that the Issues raised m even one
of those questIOns was part of the Job m questIOn. Therefore thIS Board finds that the
selectIOn commIttee dId not err WIth respect to the dIfficult, of the questIOns
The approach endorsed by Vice Chair FIsher IS, m the very least, to examme the
questIOns asked to ensure that they are related to the Job m questIOn m rough
proportIOn to the reqUIrements of the Job I turn now to the questIOns m order to
engage m that exerCIse The questIOns asked should relate to the dutIes of the
posItIOn bemg sought. That IS the reqUIrement Imposed by the collectIve
agreement. In my VIew, the followmg questIOns are too remote from the daily
duties of the posItIOn to be relevant to the assessment of the qualIficatIOn and
abIlIty of each of the applIcants "to perform the reqUIred dutIes"
QuestIOn one was a general questIOn askmg for the obJectives of the Ontano
CorrectIOnal ServIces The questIOn does not bear dIrectly on the dutIes of the
posItIOn. ArtIcle 6 3 1 reqUIres an assessment of the qualIficatIOns and abIlIty to
22
perform the reqUIred duties That IS, the reqUIrements of the Job wIth respect to
tOpICS mvolved m the daily operatIOn of the Job Although the questIOn IS relevant
to the MmIstry, It IS not relevant to the mstant Job competitIOn and ought not to
factor mto the score of the candIdate CandIdates come to the mtervIew prepared
to dISCUSS the advertIsed Job Unless the Job IS a polIcy Job, such polIcy questIOns
do not touch upon the requIred dutIes of the posItIOn.
QuestIOn eleven reads as follows
CorrectIOnal ServIces DIVISIOn of our Mimstn has developed a code of ethIcal pnnclples
Can you gIve US what you would consIder reasons wh, these pnnclples were developed?
Agam, even If the code of ethIcal prmcIples IS taken as relatmg to the dIscharge of
the dutIes of the Inmate Records SupervIsor, the motivatIOn for theIr development
IS certamly too remote CandIdates have a reasonable expectatIOn of dIscussmg
the Job, not why a general polIcy has been promulgated. Indeed, Anne Stewart
testIfied that the questIOn concerned her because she belIeved that the code had
been developed as the result of allegedly unethIcal conduct on the part of
partIcular employees She was aware of those details and felt qUIte uncomfortable
wIth the prospect of dIscussmg them.
QuestIOn 13 IS also a questIOn of general applIcatIOn that does not dIrectly touch
on the qualIficatIOn and abIlIties necessary to perform the reqUIred duties of the
Inmate Records SupervIsor It asked whIch three maJor Acts governed the
23
MmIstry The model answer looked for the followmg the Ministry of
Correctional Services Act and RegulatIOns, the Public Service Act and the Crown
Employees Collective Bargaining Act In addItIOn to those Acts, the candIdates
mentIOned the followmg Health and Safety, Pnson and Reform, Freedom of
InformatIOn and the Federal PemtentIary Act. The three Acts for whIch marks
were awarded certamly govern the employees of the MImstry However, the other
legIslative areas mentIOned by the candIdates bear dIrectly on the posItIOn's dutIes
It IS the "reqUIred duties" that ought to be the focus of the questIOns bemg asked.
As set out above, questIOns one, eleven and thIrteen do not bear dIrectly on the
duties of the posItIOn. Accordmgly, the results of those questIOns should have been
struck from the candIdates' scores as follows
Results of Invalid Questions
Question Que. 1 Que 11 Que 13 Totals
Maximum score 8 10 6 24
Grievor
Mary Ellen Thompson 8 10 6 24
Deborah Stevenson 6 7 2 15
Anne Stewart 4 1 4 9
Debra Wiwiehar 0 2 2 4
Linda Stevenson 2 0 2 4
Sue Monn testIfied as to the weIght assIgned to each of the oralmtervIew
questIOns and whether the questIOns were desIgned to assess the supervIsory dutIes
24
of the posItIOn or the substantive knowledge aspects of the posItIOn. The posItIOn
specIficatIOn allocates a 20% - 80% splIt between those areas The followmg table
summanzes her eVIdence, adJusted by deletmg the values of the mvalId questIOns
dIscussed above As can be seen, once the mvalId questIOns are deleted, the
weIght values are roughly 20% - 80%. That IS, the questIOns asked appear to relate
to the dutIes m rough proportIOn to the reqUIrements of the Job
Distribution of Marks by Position Specification Duties
Ques. # maximum Supervisory (20%) Direction of tasks (80
score
01 invalid
02 10 10
03 8 8
04 12 12
05 8 8
06 12 12
07a 4 4
07b 2 2
07e 2 2
07d 4 4
08 6 6
09 8 8
010 6 6
011 invalid
012 10 10
013 invalid
014 10 10
015 7 7
016 10 10
017 8 8
018 4 4
019 15 15
020 6 6
TOTALS 152 41 111
written 60 60
TOTAL 212 41 171
percentages 100 19 33% 80 66%
25
However, the questIOns related to supervIsory skIlls do not dIrectly bear on the
dutIes reqUIred of thIS posItIOn. Those dutIes are set out on the PosItIOn
SpecIficatIOn and are reproduced agam for convemence as follows
- provldmg trammg and gUIdance to Inmate Records Clerk m all aspects of
completIOn, mamtenance and control of mmate records explammg new and
eXlstmg procedures as necessan
- estabhshmg work pnontles and assIgnments to meet approved standards and
reqUIrements of the mstltutIOn,
- checkmg fine and sentence calculatIOns provldmg assIstance on complex
calculatIOns and/or sItuatIOns
- ensunng mamtenance of all pertment mmate records and files to approved
standards and reqUIrements
- Identlfymg problems and followmg up wIth correctIve actIOn as reqUIred
performs other dutIes as assIgned
Suffice It to say that the questIOns asked relate by and large to general notIOns of
supervIsIOn that are more akm to managenal functIOns than bargammg umt
functIOns The duties set out above are m the nature of lead hand responsibIlIties
ThIs IS a bargammg umt posItIOn that reqUIres a supenor knowledge of the
substantIve reqUIrements of the records department m order to provIde gUIdance
and leadershIp to the records clerk, If there IS one The eVIdence establIshed that
the mcumbent had worked alone m the posItIOn and that the only reqUIrement to
obtam an mtervIew was some records expenence In those CIrcumstances It IS clear
that the supervIsory dutIes are not managenalm nature and the questIOns dId not
meet the test of the collective agreement whIch IS to gIVe pnmary consIderatIOn to
the qualIficatIOns and abIlIties of the candIdates to perform the duties of the
26
posItIOn. Accordmgly, the oral questIOns faIled to address the "supervIsory" duties
of the posItIOn.
I do not propose to parse the remammg questIOns put to the candIdates at the oral
mtervIew It need only be noted that valId questIOns ought to be lookmg for
answers that assess the qualIficatIOns and abIlIties of a candIdate to perform the
dutIes of the Inmate Records SupervIsor
I turn now to the wntten test. No one fimshed the test. It was generally the latter
questIOns that went unanswered, whIch dealt wIth the calculatIOn of sentences
The abIlIty to correctly calculate an Inmate's sentence IS central to the duties of the
posItIOn.
There can be no doubt that the candIdates dId not all have the same amount of time
to complete the test. The test was loosely admImstered by the receptIOmst at the
NTC As each candIdate eXIted the oralmtervIew they were gIVen an envelope
contammg the wntten test matenals On that basIs, the length of time gIVen to
wnte the test was determmed by the length of the oralmtervIew of the next
candIdate Although the mtentIOn was that all candIdates would have the same
length of oralmtervIews, It IS clear that the oralmtervIews "ran late" Because
they were runnmg late, Mary Ellen Thompson was asked to wnte the test earlIer
27
Anne Stewart testified that she was gIVen 27 mmutes to wnte the test. Her
eVIdence was that she checked the clock m the room where she wrote the test.
Another senous anomaly regardmg the wntten test was that It appears that not all
of the candIdates were provIded wIth a partIcular form of calculator ThIs devIce
was known as a "wheel" It IS m general use mInmate records departments as an
aid to calculatmg the number of days that fall between two known dates U smg
the wheel provIdes a rapId, precIse count of those days, leadmg to speedy sentence
calculatIOns Seemmgly the wheelIs also m common use m the msurance
mdustry The eVIdence seems to mdIcate that the only candIdate mvolved m these
proceedmgs who was provIded wIth a wheel was the mcumbent. The other
candIdates had to rely on the paper calendar pages mcluded as part of the wntten
test matenals If there was a wheel avaIlable to the others, ItS presence was not
made known to them.
As to the questIOns themselves, the first questIOn asked the candIdates to Identify
and expand the vanous acronyms used on the Job That questIOn clearly relates to
daily Job duties Although It was marked ngorously, thIS IS the supervIsor posItIOn
that IS at stake The second questIOn asked for the formula used to calculate the
amount owmg on an unpaid fine Agam, that was knowledge pertammg to the
reqUIred dutIes of the posItIOn. The thIrd questIOn was as follows
28
The offender management system has been on-l me smce Ma, 1991 Can you hst some
of the features that make thIS system a workable system for mstltutIOnal staff.
In her eVIdence, Sue Monn agreed that thIS questIOn could be answered wIthout
any knowledge of how the Offender Management System worked. Indeed, she
had no knowledge of the operatIOn or workmgs of the system. The questIOn was
drawn from a sImIlar Job competitIOn at MonteIth. The sconng method used by
Ms Monn was to gIVe a mark for each pomt made Regrettably, she was m no
posItIOn to assess the answers to the questIOn because she had no workmg
knowledge of the system. The model answer used at MonteIth looked for a sound
workmg knowledge of OMS, whIch Ms Monn lacked. The answers to thIS
questIOn are of no assIstance The remammg questIOns all deal wIth sentence
calculatIOns
Havmg consIdered the oralmtervIews and wntten test, the Board IS of the
followmg VIew QuestIOns one, eleven and thIrteen were Irrelevant to any
consIderatIOn of the qualIficatIOns and abIlIty of the candIdates to perform the
reqUIred dutIes of the posItIOn of Inmate Records SupervIsor The oral questIOns
regardmg the 20% supervIsory dutIes were by and large umelated to the posItIOn's
actual duties They were preoccupIed wIth general managenal prmcIpals The
wntten test was unfairly admImstered m both the time allowed and the matenals
provIded. The unfair and arbItrary time allowance affected the sentence
calculatIOn questIOns, the first three questIOns were not apparently affected. The
29
sentence calculatIOn questIOns were also unfairly admImstered by the failure to
provIde all candIdates wIth a calculator GIVen these fundamental failures, It IS not
necessary to reVIew the remammg oral questIOns m detail.
The Board IS m no posItIOn to award the Job to any of the mdIvIduals mvolved m
the mstant matter The competitIOn IS to be rerun and any of the five mdIvIduals
herem may compete The competitIOn IS to be rerun wIth pnmary consIderatIOn
gIVen to the candIdates' qualIficatIOns and abIlIties to perform the requIred duties
of the posItIOn as at September 1998 If there IS a wntten component, all
candIdates are to wnte the test at the same time, under the same condItIOns
mcludmg the length of time permItted to wnte the test. All candIdates are to be
provIded wIth a "wheel" m order to assIst WIth the calculatIOns A new selectIOn
commIttee IS to be struck, no member of the prevIOUS selectIOn commIttee shall SIt
on the newly constItuted commIttee The selectIOn commIttee shall obtam and
consIder references from each candIdate's supervIsor or other person famIlIar wIth
theIr work. Such references shall be desIgned so as to elIcIt mformatIOn about each
candIdate's qualIficatIOns and abIlIty to perform the essentIal tasks of the posItIOn.
Each member of the selectIOn commIttee shall reVIew each candIdate's personnel
file and performance appraisals for the purpose of assessmg theIr qualIficatIOns
and abIlIty to perform the essentIal tasks of the posItIOn. All wntten records shall
be retamed. The competitIOn IS to be desIgned so as not to favour the current
30
mcumbent. If any of the gnevors are successful, they are to be compensated from
the startmg date of thIS competitIOn.
I remam seIsed to deal wIth any Issues ansmg out of the ImplementatIOn of thIS
award.
Dated at Toronto, thIS 1 st day of March, 2002
'\
. ..
- .
,.. . "I
Damel A. HarrIs, Vice Chair