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HomeMy WebLinkAbout2018-3311.Solomon et al.21-11-30 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2018-3311 UNION# 2019-0586-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Solomon Smith) Union - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Bram Herlich Arbitrator FOR THE UNION Andrew Mindszenthy Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Maria-Kristina Ascenzi Treasury Board Secretariat Counsel HEARING November 18, 2021 -2- DECISION [1] This is a job competition grievance. The parties agreed to a form of mediation- arbitration in an effort to streamline the hearing process and to minimize any delay in the issuance of a determination. The process the parties agreed to permitted me to hear from the parties’ representatives and from the parties themselves, including the grievor and a number of management personnel. Consistent with the spirit of the parties’ agreement, my decision will be economical, without all of the intricate factual details and legal analysis that are more typical of the decisions of this Board. This decision will, of course, be binding on the parties insofar as it will resolve the grievance that gave rise to these proceedings. Otherwise, however, it will be without precedential value and of no other binding authority. [2] In August 2018, the employer posted to fill vacancies in the position of Welfare Field Worker 2 under the auspices of the Ministry of Community and Social Services. The posting indicated that there were 5 permanent and 34 temporary positions to be filled. Ultimately, however, 14 permanent and 41 temporary positions were filled. [3] Some one thousand applications were received. From those applicants, the employer selected close to 150 to participate further in the process, including Daliah Solomon (the grievor) and Sansia Frayn (the incumbent). Those selected then participated in an interview and two written tests. Final percentages were tabulated in respect of each applicant (the pre-interview test was scored out of 40; the interview out of 45; and the post-interview test out of 15 for a maximum possible total of 100%). The same questions were posed at all of the interviews, which were conducted by the same two management personnel. The employer then set a minimum score of 70/100 for candidates to be further considered and selected successful candidates from those who had achieved that minimum score. Every candidate offered a position was also subject to a further standardized reference check. (As it turned out, given that a number of candidates offered positions declined, ultimately every candidate with the minimum score of 70 was subject to the additional reference check.) [4] The collective agreement identifies qualifications and ability to perform the required duties as the primary consideration in selecting the successful candidates. The employer used its test/interview scores to assess qualifications and ability. However, where the collective agreement selection factors can be -3- seen to be relatively equal as between competing candidates, the agreement prescribes that seniority is to govern the selection. [5] With the number of positions to be awarded and the number of candidates to be considered in this competition, the assessment of relative equality was not necessarily a simple matter. The employer proceeded to apply relative ability assessments on what it described as a “rolling” basis. As will be clear, however, the precise details of that process and the selection, one by one, of successful applicants are not material to the issue in this case. [6] The union and the grievor assert that the position awarded to the incumbent (who was given notice of but did not attend these proceeding) ought to have been awarded to the grievor instead. The grievor had slightly more than two years seniority at the time of the competition; the incumbent had slightly less than two years seniority. Thus, by virtue of her seniority, the grievor had a claim to be awarded the position in lieu of the incumbent, but only if the two could be seen to be relatively equal. [7] The grievor’s total score was 66 (although it was once recorded, in error the employer says, as 68). This 2-point disparity makes no difference to the ultimate result. Having scored less than 70, the grievor’s application was not considered any further by the employer and no follow up reference check was conducted. By contrast, the incumbent scored 92. The latter was offered a position because she was considered to be relatively equal to a junior candidate notwithstanding the score of 100 attained by the latter (“relative equality is often said to arise when there is no more than a ten percent disparity between the assessments of competing candidates). [8] There are a number of ways to view the disparity the grievor would need to foreclose in order to be considered relatively equal. First, I note that the union accepted that, in essence, the appropriate comparator is not the incumbent but rather the junior applicant who scored 100 and against whom the incumbent was considered to be relatively equal. Otherwise, if the grievor could succeed by claiming her relative equality only to the incumbent, what is to prevent another applicant, with a score even 10 points lower than the grievor from advancing a similar claim against the successful grievor, and so on. [9] But whether the grievor is to be assessed directly against the incumbent, where she would need to attain at least 14-16 additional points, an increase of over 20% or (more properly, perhaps) against or closer to the high score of 100, -4- where she would need an additional 32-34 points, an increase well beyond 30%, it is far to say that the “gap” between the grievor and relative equality is more in the nature of a chasm. [10] Having considered the information provided by the parties’ representatives and the parties themselves (including the grievor and certain management representatives), I am not persuaded that the union and the grievor can come anywhere close to scaling that chasm. Accordingly, the instant grievance must be and hereby is dismissed. Dated at Toronto, Ontario this 30th day of November 2021. “Bram Herlich” ______________________ Bram Herlich - Arbitrator