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HomeMy WebLinkAbout2002-2344.Manoukas.03-08-28 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB#2344/02 UNION#OLB485/02 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Control Boards Employees' Umon (Manoukas) Grievor - and - The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE BelInda KIrkwood Vice-Chair FOR THE UNION JulIa Noble Counsel Ontano LIqUor Boards Employees' Umon FOR THE EMPLOYER Michael Horvat OgIlvy Renault BarrIsters and SOlICItorS HEARING May 14 2003 2 ORDER The grievor was seeking the position of Building Maintenance Mechanic, Class Code 709 Two positions were posted on October 7, 2002 with a closing date of October 21, 2002 The grievor applied for the positions, but did not receive an interview The two positions were filled by Rico Tomassi and Walter Blondin, who were present at the hearing and who were given standing Opening statements were made by both counsel and submissions were made on a motion for particulars The incumbents were offered an opportunity to make submissions but chose not to The incumbents however, then sought an opportunity to consider if they would obtain legal counsel As a result July 8, 2003 was set for a conference call to allow counsel for the incumbents to make submissions on the production motion The incumbents ultimately chose not to have counsel This Order therefore relates to the Union's motion for production The grievor claims that he was qualified for the position of Building Maintenance mechanic, and that he was wrongfully denied an interview and the position The Union claims that he was entitled to the position on the basis that he was qualified and had the seniority to obtain the position in accordance with Article 21 5 (a) of the collective agreement. Article 21 5(a) states Where employees are being considered for promotion seniority will be the governing factor provided the employee is qualified to work. Union Counsel states that the article does not create a competition between applicants but submits that it only sets out a threshold, that the grievor has sufficient ability to perform the job Therefore Union Counsel submits as the grievor has the qualifications and is senior that he should be promoted to the position The Union is seeking an Order appointing the grievor to the position with full redress Alternatively, the Union is seeking an Order rerunning the posting and an Order setting out the appropriate procedure, and further that the grievor be made whole for any losses Board's Counsel submits that the position is a highly skilled position and is paid accordingly The position is above that of a station engineer and custodian, and is not a handyman position Board's Counsel submits that the Board used the categories in the position to develop the criteria and to construct a screening guide Scoring was based on the review of the resume package provided by the applicants and was based on the full score of 15 points Candidates who scored 9 out of 15 points or 60% were considered for an interview The interview took the form of an oral interview before a three-person panel The panel used test questions designed to fully determine if the person met the qualifications Nine employees, internal candidates applied for the position Five reached the threshold to be considered for an interview The most senior people were considered first. Four employees were provided interviews and only two were considered qualified The two qualified candidates were given the position and no further interviews were conducted Board's Counsel submits that the Board is not obliged to interview every applicant and it may pre-screen applicants The requirement is that the Board conduct a reasonable 3 assessment and conduct a reasonable job posting procedure Board's counsel submits that the evidence will show that the grievor was appropriately pre-screened and was not entitled to an interview as he did not demonstrate or provide details regarding his background or skills that met the criteria identified in the job posting The Board acted reasonably and reviewed the resumes received and the job posting and considered the applicants on an equal footing with respect to the criteria identified in the posting The Board asks that the grievance be denied or alternatively, if the grievance succeeds to provide the grievor an interview, for if the Board had not allegedly breached the collective agreement, the rectification of that breach would be to provide an interview to the grievor The Board submits that a rerun of the competition is not necessary, as the Board agrees that the grievor is the most senior, and if found to be qualified, would have been given the position The Board submits that the Grievance Settlement Board not post the grievor to the position, for if the Union were successful, it would mean that the Board did not have complete the posting process The Union brought a motion for disclosure Set out below are the requests made by the Union for documents which the Union submitted were arguably relevant, and the responses by the Board The Union sought the following 1 the grievor's personnel file, in order to show that the grievor was qualified Board's Counsel submitted that the entire file may not be relevant. The Board then agreed to provide the union the opportunity to review and make copies from the file 2 the incumbents' personnel files, as they may be witnesses Union counsel submitted that the Board has the information to which the Union does not have access Board's Counsel submitted that the entire file may not be relevant. 3 the details of the posting process Union counsel submitted that while the details were submitted in the Board's opening, the question and answer sheets and any other documents that the Board used were not produced Board's counsel stated that the Board has provided the screening guide and all resume packages, the document book on the resume process, the job description and the posting 4 the documents in the selection process including question and answer sheets Union counsel submitted that these documents are arguably relevant as they may become an exhibit in the Union's case, establishing that the grievor is qualified Board's counsel submits that these documents are not relevant as it does not flow from the interview Further it is not appropriate to produce the questions and answers of those who were not successful As a result of the exchange between counsel the only matters remaining outstanding are the incumbents' personnel files and the questions and answers on at the interviews The issue in this case flows from the application of Article 21 5(a) of the collective agreement, the alleged failure to appoint the grievor to the position of Building Maintenance Mechanic on the basis that he is the most senior candidate with the qualifications to do the job Although counsel do not agree on the remedy, the issues revolve around the qualifications of the grievor as both counsel agree that the grievor is senior, and if qualified would receive one of the positions Therefore any documents which would show the qualifications of the grievor, the threshold set by 4 the Board as shown by the responses by the successful candidates at the interviews can be considered as arguably relevant. Therefore I order that the Board produce a. the incumbent's personnel files, and b the questions and answers of the incumbents at the interviews Dated at Toronto, this 28th day of August, 2003 air