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HomeMy WebLinkAbout2003-0694.MacLennan.04-06-16 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# 2003-0694 2003-0695 UNION# 2003-0329-0007 2003-0329-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (MacLennan) Grievor - and - The Crown III RIght of Ontano (Mimstry of Health and Long-Term Care) Employer BEFORE Damel Hams Vice-Chair FOR THE UNION John BrewIll Ryder Wnght, Blair & Doyle Bamsters and SOlICItorS FOR THE EMPLOYER Jamce Campbell Counsel Management Board Secretanat HEARING May 4 & June 2, 2004 2 DeCISIon ThIS IS a J ob competItIOn gnevance filed on behalf of Margaret MacLennan. Ms MacLennan applIed for the classIfied posItIOn of Photocopy /Mall Clerk (1) wIth the Mimstry of Health and Long Term Care at the Mental Health Centre, Penetangmshene Although she outscored all other applIcants by a consIderable margIn, she was dIsqualIfied because the employer concluded that she must have had advance knowledge of the IntervIew questIOns and preferred answers Further her unclassIfied contract was not renewed. The umon gneves Ms MacLennan's dIsqualIficatIOn from the Job competItIOn and the faIlure to renew her unclassIfied contract as unJust. The successful candIdate In the Job competItIOn was gIven notIce of these proceedIngs but chose not to attend. The Umon agreed to proceed wIth ItS eVIdence first. It called the gnevor her supervIsor Ed Donon, and the Local Umon PresIdent, Martha McDonald. The gnevor started workIng at the Mental Health Centre as a part-tIme unclassIfied employee In October 2001 She worked under Ed Donan' s dIrectIOn, he was a bargaInIng umt supervIsor SeemIngly the Incumbent of the Photocopy/MaIl Clerk posItIOn was often absent and the gnevor often filled In for that posItIOn. Indeed, she worked essentIally full-tIme In the posItIOn for approxImately SIX months pnor to the Job competItIOn run In May 2003 to fill the posItIOn permanently Pnor to startIng WIth the Ontano PublIc ServIce, the gnevor was a contract letter carner wIth Canada Post for eIght years Her route Included the Mental Health Centre 3 The gnevor dearly wanted to WIn the competItIOn for the mall room posItIOn. She testIfied that she studIed hard for the competItIOn by USIng the employer's polIcy manuals, Internet sources and askIng fellow employees what to expect at the IntervIew Bons Poredos was the AssIstant AdmInIstrator HospItal ServIces, and was responsIble for the Job competItIOn. His eVIdence was largely consIstent WIth a summary document he prepared after the competItIOn. Although lengthy It IS a convement summary of hIS eVIdence and reads as follows M. McLennan CompetitIOn Gnevances Back2:round InformatIOn. The Mental Health Center Penetangmshene has employed Ms McLennan smce October I 200 I on a part tIme megularh scheduled contract baSIS She provIded back up to a number of pOSItIOns m the Stores/ShIppmg/ReceIvmg/Mallroom area on a call m baSIS The maJont, of thIS part-tIme work was m the role of Photo cop, 1M all room clerk pOSItIOn. Her work performance was satIsfacton and there have been no attendance or rehabIht, concerns IdentIfied. CompetitIOn InformatIOn. POSItIOn. Photocopy/Mailroom Clerk OASO-4 CompetItIOn closed. April 11, 2003 ApphcatIOns receIved. 309 Apphcants chosen for IntervIews 6 Ms McLennan was one of the apphcants chosen for mtervIew IntervIew Panel. Bons Poredos, ASSIstant AdmmIstrator HospItal ServIces (Manager) Cathenne Duquette Manager Housekeepmg/Laundn Lmen (Manager) Ed Donon, Group LeaderlStores/ShIppmg/ReceIvmg/Mallroom (Techmcal AdvIsor) All mtervIew panel members were consulted and partIcIpated m the development of the questIOns, preferred responses, wntten aSSIgnments and markmg schemes IntervIew conSIsted of. . Four practIcal wntten aSSIgnments related to four of the SIX selectIOn cntena . SIxteen mdIvIdual questIOns related to four of the SIX selectIOn cntena Ms. McLennan's Oral IntervIew: 4 IntervIews for thIS competItIOn were held on Wednesda, Ma, 7th 2003 and Thursda, Ma, 8th 2003 Ms McLennan s mtervIew was scheduled and held at 0900 hrs on the second da, of mtervIews PractIcal and wntten assIgnments followed ImmedIateh after the oral mtervIew I should note that m thIS mtervIew we dId not provIde candIdates wIth a cop, of the oral mtervIew questIOns for reVIew pnor to the mtervIew Dunng the oral mtervIew It became apparent to me that Ms McLennan had pnor knowledge of not onh the mtervIew questIOns but also the preferred responses I felts thIS was for the followmg reasons I Responses were mordmateh conCIse 2 Responses were restncted to the prepared preferred responses 3 In man, cases termmolog) and phrasmg used matched the prepared preferred responses 4 On one occaSIOn the subsequent questIOn was answered before It was asked 5 One questIOn m partIcular asked about the functIOns of a customs broker the responses gIven were as hsted m the preferred responses and m the order hsted 6 Throughout the mtervIew vIrtualh no non-sconng mformatIOn was provIded Ms McLennan overall score was 90% and her score m the verbal portIOn of the mtervIew was 94 5%. I have been employed m the Ontano Pubhc ServIce for approxImateh 17 years SIxteen of those I have spent m supervIson and management roles Dunng thIS penod I have been mvolved m numerous Job competItIOns mcludmg those wIthm m, domam of responsibIht, assIstmg other managers and assIstmg other mmIstnes and provmcIal government orgamzatIOns wIth theIr competItIOns In these competItIOns I have seen candIdates who have done extremeh well I know there would be examples of candIdates who scored as well as Ms McLennan dId, on the oral portIOn of thIS competItIOn. However there was a sIgmficant mconsIstenc, m Ms McLennan's mtervIew that I could sImph not Ignore when combmed wIth the other mmor mconsIstencIes CandIdates who perform ven well on mtervIews provIde extensIve amounts of mformatIOn. Includmg mformatIOn that can be related to the preferred responses In Ms McLennan's mtervIew thIS was not the case All responses were ven conCIse and vIrtualh no non-sconng mformatIOn was provIded. I wIll concede that It can and wIll be argued that some of the questIOns m thIS mtervIew were clearh ehcItmg a concIse response However m those questIOns where a normal response would mclude some more descnptIOn or expanSIOn on the preCIse answer none was provIded. After the oralmtervIew was completed and the regular opportumn for candIdate questIOns was afforded and completed the candIdate left the room Ms Duquettes reactIOn to thIS mtervIew was eVIdent and we both expressed our senous concerns out loud. Ms Duquette was vIsibh shaken b, the expenence and asked to leave the room to compose herself. We completed the remamder of the mtervIews as planned and scheduled. After the mtervIews were completed Ms Duquette and I dIscussed our mdIvIdual concerns regardmg Ms McLennan's mtervIew I consIdered the sItuatIOn for some tIme and consulted wIth Human Resources 5 Summary: An, one of the concerns I have raised regardmg Ms McLennan's mtervIew could be explamed awa, mdIvIdualh however collectIveh the, tIp the balance of probabIhtIes towards the conclusIOn that Ms McLennan had pnor knowledge of the mtervIew questIOns and preferred responses On thIS basIs It was m, decISIOn as chair of the selectIOn board to dIsquahf\ Ms McLennan from the competItIOn and award the Job to the second place candIdate On Ma, 23n1 2003 Jeff Miller Human Resources Consultant and I, met wIth Ms McDonald to advIse her of the sItuatIOn and m, decIsIOn related to It. ImmedIateh followmg thIS meetmg we met WIth Ed Donon to mform hIm that we had selected a successful candIdate that It was not Ms McLennan and that Ms McLennan's contract would not be renewed. We subsequenth met WIth Ms McLennan and Ms McDonald to notIf\ Ms McLennan of m, decIsIOn regardmg the competItIOn and m, ratIOnale for thIS decIsIOn. I also mformed her that we would not be renewmg her contract. As set out In hIS summary Mr Poredos concluded that the gnevor had pnor knowledge of the IntervIew questIOns and preferred answers He first expressed those concerns to the other panel members at the conclusIOn of the gnevor's IntervIew It should be noted that Mr Donon partIcIpated as a techmcal advIsor Because he was a bargaInIng umt member hIS Input was restncted to answenng techmcal questIOns relatIng to the Job reqUIrements AccordIngly hIS OpInIOn on the gnevor's purported famIlIanty wIth the questIOns and preferred responses was neIther sought nor offered. Ms Duquette dId not testIfy In these proceedIngs AccordIngly there IS no dIrect eVIdence of If, or why she was upset by the gnevor's IntervIew Mr Poredos admItted In hIS eVIdence that he dId not formally InVestIgate hIS concerns He lImIted hIS Inqumes to confirmIng wIth hIS admInIstratIve assIstant and wIth Cathenne Duquette the other manager on the IntervIew panel, that the questIOns and answers had been kept secure pnor to the IntervIews He said he spoke to human resources consultants approxImately SIX tImes and to the Mental Health Centre AdmInIstrator George Kytayko at least three tImes Mr Kytayko contradIcted Mr Poredos on thIS pOInt. He said that he only recalled meetIng wIth Mr 6 Poredos once He sImply told Mr Poredos and Ms Duquette to follow up theIr concerns wIth human resources staff ApproxImately one week later Mr Kytoyko called the human resources staff to ensure that Mr Poredos had contacted them for advIce The thrust ofMr Kyatayko's eVIdence was that he left the dISposItIOn of thIS matter In Mr Poredos's hands, after havIng heard the concerns raised, as summanzed In the document set out above It IS most surpnSIng that Mr Poredos dId not fully dISCUSS hIS concerns wIth Mr Donon, the gnevor's supervIsor and techmcal advIsor to the selectIOn panel, nor dId he ask the gnevor for any explanatIOn she could provIde pnor to the meetIng on May 23 2003 when she was advIsed that she was beIng dIsqualIfied. It can only by concluded that he made no senous InVestIgatIOn of hIS concerns Indeed, hIS eVIdence was that there was nothIng to InVestIgate because It was the IntervIew Itself that compnsed the facts of the matter Mr Poredos reIterated a number of tImes that hIS concerns could be explaIned away on a questIOn by questIOn analysIs of the IntervIew He said that It was the overall effect that raised hIS SuspIcIOns He IS qUIte nght that a consIderatIOn of each of the questIOns IndIVIdually exonerates the gnevor None the less he maIntaIned throughout hIS eVIdence that the combIned effect led hIm to correctly conclude the gnevor somehow had pnor knowledge of the questIOns and preferred responses In such CIrcumstances as should dIsqualIfy her GIven hIS eVIdence that he belIeved the questIOns and answers remaIned secure pnor to the IntervIew there IS no comprehendIble basIs upon whIch to rest hIS conclusIOn that the gnevor had an unfair advantage 7 I turn now to a consIderatIOn of the questIOns asked and the answers gIven by the gnevor at the Job competItIOn IntervIew Mr Poredos agreed that questIOn one was a questIOn that any candIdate mIght expect. It reads as follows QuestIOn 1 Please outlIne any relevant educatIOn and office admInIstratIOn expenence you wIll bnng to thIS posItIOn Clearly questIOn one called for a recItal of the candIdate's work expenence The gnevor had been a letter carner for eIght years and had done the Job for whIch she was competIng on a full- tIme basIs for SIX months She could only be expected to score well on that questIOn. The remaInIng questIOns were equally predIctable It IS useful to reVIew the Job posItIOn In order to apprecIate Just how predIctable Mr Poredos's subsequent questIOns were The qualIficatIOns for the posItIOns are set out on the postIng as follows Qualifications. Knowledge of office procedures to route mall, maIntaIn filIng systems and order office supplIes Knowledge of operatIOn of computenzed photocopIer and abIlIty to perform mInor repairs Knowledge of postal and customs regulatIOns/procedures and couner servIces In order to select the most efficIent means of ShIppIng; Knowledge ofWHMIS legIslatIOn to ensure the safe handlIng and storage of regulated matenals, FunctIOnal anthmetIc skIlls to calculate InVOICeS and tally photocopIer counts, CommumcatIOn skIlls to explaIn procedures and regulatIOns, answer Inqumes and complete forms The clause part of the qualIficatIOns clearly and dIrectly relates to questIOn two whIch IS as follows 8 Question 2 Please descnbe the maJor dIfference between computenzed photocopIer operatIOns and standard photocopIers In hIS cross-eXamInatIOn Mr Poredos agreed that the gnevor's answers to questIOn 2 were not restncted to the Items set out In the preferred answer the order of her answers was also dIfferent and the language used was dIfferent. Mr Poredos seems to have been partIcularly troubled that the gnevor used the phrase "dIgItal ImagIng," a phrase that IS also found In the preferred response, to describe computenzed photocoPYIng, yet he never asked anyone after the IntervIew If It was a common phrase He dId say the phrase came up when he dIscussed the questIOns wIth Mr Donon pnor to the IntervIews and he grudgIngly conceded that the gnevor mIght have used the term on the basIs of her own Independent knowledge I take notIce of the fact that thIS IS a UbIqUItous term of art that encompasses the dIgItal captunng and pnntIng of Images - IncludIng what mIght In the past have been sImply called photocoPYIng. Mr Poredos unfairly and wIthout InVestIgatIOn, unreasonably and arbItranly concluded that the gnevor's use of a common modern term IndIcated she had untoward pnor knowledge of the questIOns and preferred answers The next questIOn asked at the IntervIew was a multI-part questIOn whIch canvassed the candIdate's knowledge of CanadIan postal and customs regulatIOns that IS, the thIrd part of the qualIficatIOns set out on the Job postIng. Mr Poredos conceded that someone who had worked In the mall room for SIX months would know postal rates but thought they mIght not know the actual dImensIOns of a standard envelope He dId not know that a chart was hung In the maIlroom dIsplaYIng these dImensIOns Many of the questIOns reqUIred straightforward answers that ought to be known by someone who was a letter carner for eIght years and held the Job beIng competed for dunng the prevIOUS SIX months It IS most InstructIve to examIne the answer 9 that troubled Mr Poredos the greatest. He often mentIOned that he was struck by the fact that the gnevor answered a questIOn before It was asked. Those questIOns and preferred answers are as follows QuestIons. g) On packages receIved from the USA, what value In CanadIan dollars can you receIve wIthout paYIng duty or tax? h) Are there any exceptIOns to thIS rule? Preferred Responses. g) If someone malls you an Item worth $20 CAN or less, you don't have to pay duty the GST or HST or any PST on the Item h) Some Items do not qualIfy for the $20 CAN exemptIOn tobacco books, penodIcals, magaZInes, alcoholIc beverages, goods ordered through a CanadIan post office box or IntermedIary The gnevor answered questIOn g) by gIVIng both preferred responses g) and h) The gnevor's uncontradIcted eVIdence was that she used the Canada Customs web sIte as a study aid. Mr Poredos testIfied that he used the Canada Customs web sIte to develop these very questIOns and answers He agreed that the folloWIng excerpt from the Canada Customs web sIte was eIther what he used or was sImIlar . If someone malls you an Item worth $20 CAN or less, you don't have to pay duty the GST or HST or any PST on the Item (see D8-2-2 for detaIls) Some Items do not qualIfy for the $20 CAN exemptIOn . tobacco . books . penodIcals . magaZInes . alcoholIc beverages . goods ordered through a CanadIan post office box or IntermedIary 10 It IS readIly apparent that the preferred responses are identical to the wordIng found on the publIcly accessIble web sIte that the gnevor legItImately used as a study aid. The gnevor certaInly dId have access to thIS answer pnor to the IntervIew by dInt of her dIlIgent study Had Mr Poredos asked her about thIS dIrectly he mIght have been dIsabused of ItS seemIng Importance She sImply gave the whole answer to the questIOn, rather than breakIng It down Into two questIOns and answers as Mr Poredos had done Further her answers were not IdentIcal to the preferred answers On reflectIOn, the fact that she gave both parts of the answer unprompted IS an IndIcatIOn that It IS more lIkely than not that she dId not know the structure of Mr Poredos's preferred answers Had she modeled her answer to fit hIS preferred answers she would have held off on the second part of the answer wIth the foreknowledge that there would be a second questIOn. In any event, on the eVIdence, her answer was not a verbatIm recItal of the preferred responses she mIssed some detaIls and stated some of them dIfferently Another questIOn that aroused Mr Poredos's SuspICIOns related to the functIOns of a customs broker As set out In hIS summary he belIeved her "responses were as lIsted In the preferred responses and In the order lIsted." LookIng at Mr Poredos's notes and the notes of Cathy Duquette, that allegatIOn IS sImply untrue The gnevor volunteered the name of the employer's customs broker and responded otherwIse In a fashIOn that used dIfferent language In a dIfferent order than the preferred response Further the gnevor testIfied that well before the competItIOn had been announced she receIved a call, In the course of dOIng her Job from a couner servIce askIng whIch customs broker the employer used. She dIdn't know what a customs broker was so she went to the Canada Customs web sIte, learned what was Involved and put some of what she learned Into the employer's polIcy manual 11 Other questIOns and preferred answers relatIng to Canada Custom's reqUIrements were also lIfted word for word by Mr Poredos from Its web sIte, the same sIte the gnevor used as a study aid, a resource avaIlable to all candIdates The final questIOn asked at the IntervIew related to the Workplace Hazardous Matenal InformatIOn System. Anyone who had read the Job PostIng would have been alerted to the relevance of thIS questIOn and have expected to be asked about thIS tOpIC Indeed, the gnevor testIfied that all of the co-workers she turned to for advIce pnor to the IntervIew told her to expect a questIOn on WHMIS Mr Poredos testIfied that he only put check marks on hIS work sheets besIde the preferred answers because the answers gIven by the gnevor were "verbatIm" Unfortunately for hIS relIabIlIty as a wItness, Ms Duquette dId take notes whIch IndIcate that the gnevor dId not gIve verbatIm answers as compared to the preferred response Her answer mIssed one expected response, nor were her responses In the same order She used dIfferent language and added a gratUItous observatIOn. In any event, gIven that the gnevor dId not get full marks from eIther Mr Poredos or Ms Duquette It IS not possIble that her answer was a verbatIm recItal of the preferred answer Although I have not set out Mr Donon's eVIdence In any detaIl In these reasons, It should be noted that there were conflIcts between hIS eVIdence and that of Mr Poredos, partIcularly wIth respect to the extent ofMr Donon's partIcIpatIOn In formulatIng the questIOns One pOInt In partIcular IS pertInent. Mr Donon testIfied that he told Mr Poredos that the questIOns as formulated by hIm would favour someone who had done the Job Mr Poredos testIfied that he told Mr Donon that they must guard agaInst havIng questIOns that would penalIze outsIders I 12 specIfically accept Mr Donon's account. He warned Mr Poredos, but the warmng fell on deaf ears Where Mr Poredos's eVIdence conflIcts WIth that of any other wItness, I reJect It. Mr Poredos tenacIOusly held on to hIS overall ImpreSSIOn that the gnevor must have had an unfair advantage by vIrtue of havIng prevIOusly seen the questIOns and preferred responses The eVIdence establIshes that the questIOns and preferred answers were kept secure, and there IS no suggestIOn at all as to how the gnevor mIght have obtaIned them Mr Poredos also dIsagreed wIth the eVIdence ofMr Donon that he told Mr Donon that he "had a gut reactIOn" that the gnevor had seen the questIOns and preferred responses Whether or not Mr Poredos actually used the phrase, It IS exactly what he relIed on. It was Mr Poredos's gut reactIOn that demed the gnevor the secunty of a classIfied posItIOn as a mall clerk. ThIS was an arbItrary exerCIse of management's nghts The fact IS, the questIOns asked were a sImple test, Indeed sImplIstIC, for a mInor posItIOn In the orgamzatIOn. The gnevor was extremely well qualIfied, had extensIve dIrect expenence and studIed very hard from publIcly avaIlable matenals that were the very matenals used by Mr Poredos to create the questIOns and preferred answers Had he InvestIgated what had happened, he most lIkely would not have dIscredIted the gnevor by dIsqualIfYIng her His faIlure to fully InVestIgate by takIng up hIS concerns wIth Mr Donon and the gnevor before makIng up hIS mInd was unreasonable and arbItrary It demed the gnevor any modIcum of procedural fairness I have carefully consIdered all of the submIsSIOns made on behalf of the partIes both as to the facts and the applIcable law As set out above, I find that there IS no basIs upon whIch It can be concluded that the gnevor had actual, advance knowledge of the questIOns and preferred 13 responses admInIstered dunng the IntervIew although she certaInly knew most of the answers by vIrtue of dIlIgent study AccordIngly there IS no basIs upon whIch she was properly dIsqualIfied from the competItIOn. I do accept Mr Poredos's eVIdence that had she not been dIsqualIfied, the gnevor would have been declared the successful candIdate AccordIngly I reJect the employer's submIssIOn that the appropnate remedy would be an order that the competItIOn be re-run. The gnevor was the hands-down WInner and was arbItranly and unreasonably kept from her success AccordIngly I order that she forthwIth be confirmed and employed In the posItIOn and made whole for any monetary losses effectIve from and after May 23 2003 In VIew of my decIsIOn on Ms MacLennan's Improper dIsqualIficatIOn from the Job competItIOn, It IS unnecessary to consIder the faIlure to renew the unclassIfied contract. FInally the umon also claimed damages for paIn and suffenng as a result of what It descnbed as the reckless and wont on dIsregard exhIbIted by the employer In thIS matter AcceptIng, wIthout decIdIng, that these CIrcumstances sound In damages for paIn, suffenng and loss of reputatIOn, that matter IS remItted back to the partIes for theIr consIderatIOn as to ItS proper dISposItIOn and may be brought back before me for determInatIOn If they are unable to reach an accord. I remaIn seIsed to deal wIth any Issues anSIng out of the ImplementatIOn of thIS decIsIOn. Dated at Toronto thIS 16th day of June, 2004