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HomeMy WebLinkAbout1977-0149.Remark.79-01-29Between: Mr. Henry Remark IN THE MATTER OF AN ARE Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD and The Crown in Right of Ontario Ministry of Revenue Befcre: ?rcfessor Katherine Suii~tcn :Mr. Gerald Griffin Mr. Ron Cochrane For the Grievor: Vice-Chairman Member Member Mr. George Richards,, Grievance Gfficer Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario For the Employer: Mr. E. Farragher, Senior Fersonnel Officer Personnel Services Branch Ministry of Revenue Heariq: January 3rd, 1979 Suite 7.100, 18C Dundas St. W. Torontc, Ontario ..~ -2: This is a grievance in which Mr. Henry Remark claims that he has been unjustly.denied promotidn to the position of Supervisor, Assessment Clerks in the Essex Regional Assessment Centre of the Ministry of Revenue. This is a case in which the outcome could affect rights 0f.a third party. The present incumbent of the-job, Mrs. Kathleen Bridson, was accordingly~".' notified, and she was present throughout the hearing. Mr. Remark's grievance is based on article 4.3 of the Working Conditions Agreement (January 28,,1977 to January 31, 1978). That clause .: reads: In filling ? vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a con- sideration. As numerous decisions of this Board have indicated, a clause worded in this way requires the grievor to show the nature df the work to be per- formed and his qualifications and ability to do that work. He must then show either the relative equality between his qualifications and ability to do that work and the qualifications and ability of the incumbent to do the job or show his superior qualificati.ons and ability to do the work. In the first situation, where the grievor has shown relative equality, then length of continuous service becomes a consideration. In the. second situation, where the grievor has shown superior ability,.he has . satisfied the onus of proving that the employer violated article 4.3 without turning to~the factor of length of service. -. -3- In this case, the union stressed that Mr. Remark's qualifications and ability were superior to Mrs. Bridson's. and therefore, only the first part of article 4.3 was re1evant.t.o the case. That being~the union's contention, it is important for the Board to state the scope of arbitral review of management's decisions with regard to job posting. Clearly, in considering qualifications and abilities of.job applicants, the employer must not act arbitrarily, discriminatorily, or in bad faith. Nor should he act unreasonably, either in establishing requisite qualifications for the'job nor in applying them to the applicants. In reviewing management decisions with regard to qualifications and Y.~.. ability, arbitrators in the past have shown reluctance to substitute their opinion for that ofmanagement (e.g. me Union Carbide Canada Ltd. (1967), 18 L.A.C. 109 (Weiler)). Since the decision of the Divisional Court in Canadian Food and Allied Workers Union, Local 175 v. Great Atlantic and Pacific Co. of Canada Ltd. (1976), 76 CLX #14,056, it appears that the arbitrator must consider whether management's decision on these matters was correct, at least in the absence of a clause in the collective agreement stating that "in the opinion of the employer" qualifications and ability are relatively equal. Thus, the arbitrator must compare respective qualifications and ability of applicants, rather than asking if a reasonable employer would find them relatively equal. In this particular case, article 4.3 of the Working Conditions Agreement has been altered from its form in the previous collective agreement. Article 4.2 of that agreement (dated January 28, 1976 to January 27, 1977) stated in part, "Where, inthe opinion .of.the Employer, qualifications 1 and ability are relatively equal, length of continuous service shall be a consideration" (emphasis added). The deletion of the clause "in ,the opinion of the Employer" is significant, and it requires this Board to compare the relative qualifications and ability of job applicants and, if satisfied that the employer erred, to substitute its judgment as to relative equality for that of the employer. In so describing the scope of review, the Board wishes to dissociate itself from a statement in an earlier case of this Board, Fish and The crown in Right of mtario, Ministry of Labour, 139/77. There it was stated that the arbitration board would not substitute its decision for that of management with..~'-- regard to questions of qualifications and ability. The major issue in Fish was the onus of proof borne by the grievor when he claimed relative equality in ability and qualifications with the incumbent in a job. Argument was not addressed to the scope of arbitral review, nor the significance of the deletion of the phrase "in the opinion of the employer." With these considerations in mind, we can turn to a consideration of the evidence. The grievor applied for the opening as Supervisor, Assessment Clerks (Clerk 5, General) in August 1977. He was and is a Registry Clerk in the Essex Regional Assessment Office in Windsor, classified as Clerk 4, General. He joined the Ministry in May 1971. The grievor works in the Mapping Section of the office. His duties are largely concentrated,in preparation of work for draftsmen. He renumbers properties in some townships; so that draftsmen can place. -5- them on a planned map schedule. His job requires that he be familiar with the registery system and deeds'and property descriptions, since it is necessary to determine the last registered owner of properti,es. In addition, he is sometimes required to answer inquiries from City Hall, the townships, or assessers about property ownership. The position which Mr. Remark seeks is that of Supervisor, Assessment Clerks. The Supervisor in the Windsor office supervises 10 to 12 Assessment Clerks, who are responsible ~for taking information prepared by Assessors and occasionally information directly from ratepayers and preparing it for processing by keypunch operators. They do so by means of Assessment Data Sheets, which are used by the keypunch operator to update the Master File of assessment data in Toronto. The Master File contains the information from which the Assessment Roll is returned for each Municipality. The role of the Supervisor, Assessment Clerks is primarily one of organizing the processing of data arriving in the Assessment Services Section from assessors and the public. The purpose of the position and the summary of duties and responsibilities of the job are set out in the Position Specification (Ex. 4): 2. PURPOSE OF POSITION (Why does This Position Exist? State Goals Objectives Etc.) To supervise .&lerical staff'involved in the revision and completion of new assesment data sheets and the calculation of assessed values; to answer enquiries &d prepare a -variety of reports; to supervise the activities of the . keypunch &it. -6- t 3. SUMM?GY OF DUTIES AND RESPONSIBILITIES (Indicate~percentage of Tim Spent on Each Sig&ficant Function,, Indicate Scope, Equipment, Working Conditioni Unusual Features, etc.) 25% 1.Responsibl.e for the organization and co-ordination of work carried out by the Assessment Clerks and input to the keypunch unit by performing tasks such as: - establishing work schedules as required to meet statutory deadlines: -discussing with Supervisor any urgent or unusual assignments and ensuring that staff are made available as required; - spot-checking source documents to ensure inclusion of informetion, conformity with respect to established procedures; - correcting obvious errors and returning additional discrepancies to Manager, dssessment Services for correction by valuation staff, enumerators, etc.; - assigning work to clerical staff ensuring that all clerks become conversant with the full duties and responsibilities of their position; - answering queries by the clerical staff with respect to source document required informatitin. methods of calculation, etc.; making necessary corrections or referring to Manager, Assessment Services; - establishing and modifying procedures in conjunction with Manager, Assessment Services as a result of system changes; advising and training staff with respect to changes; - preparing production reports for use by the Hanager, Assessment Services - ensuring that documents are forwarded to the keypunch unit as completed of to outside supplier for keypunching. 20%~2~hsures the necessary quality and quantity of output by clerical staff by performing duties such as: - esteblishing and implementing controls to cover the variety of data being processed through the Section, end monitoring the effectiveness of same ."~ - investigating errors identified by keypunch staff; if in excess, discussing with appropriate clerk in order to ascertain the cause; - reviewing assignments with respect toquantity completed in order to maintain acceptable levels of production by the.,clerks; discussing unacceptable levels with appropriate clerk in order to identify end correct the cause; - checking computer error listings and ensuring that all output errors are corrected and re-submitted by the responsible clerk. 20% 3.Responsible for the preparation of reports for use by municipal and school board officials i.e., year-end analysis, population reports, school support listings, assessment totalsretc., and the provision of information to ratepayers by performing tasks such as: .. - reviewing pertinent data i.e., assessment data sheets, deeds, permits, maps. registered plans, etc., and extracting necessary information or determining appropriate answer; - determining appropriate format for reports in order that information supplied is in mst useable form; - providing oral or written replies as required with respect to errors in the Assessment Role, notices, etc.; assigning enquiry to avail- able clerks, reviewing answer determined before fomarding to interested party; - in unusual or complexsituations discussing with Manager, Assessment Services, determining appropriate information and preparing reply for Manager's signature. 15% 4,Responsible for the administsative duties required as part of the supervision of staff by performing tasks such es: - assisting Manager, Assessment Services in'the interviewing and selection of new staff; -~tra.ining new staff by explaining procedures related to the Standard Assessment System, the processing of deeds, the use of mathematical formulae in the calculation of areas, volumes, the use of the Handbook of Cost Factors, depreciation tables, etc: - preparing Employee Performance Apprkisals, reviewing with Manager,' Assesszcent Services and discussing with individuals concerned; - administering routine discipline; referring with reconanendations any serious problems to Manager, Assessment Services; - recommending promotions, merit increases, leaves of absence. 15% 5.Responsible for the organization end operation of the Keypunch unit by performing tasks such as: I~ - establishing work schedules , assigning work to operators, answering enquiries, preparing production reports; training new staff; etc; - ensuring the necessary quality and quantity of output from 'he keypwich section by investigating errors, checking error listings ensuring that keypunch errors are corrected; .~ - as assigned (see Position Specification - Keypunch Supervisor - position code 23 - Regional Assessment Office). 5% fi.Performs other related duties such as: - ensuring that necesserysupplies are available as required-by ,. the Assessment Clerks; -‘completing new a.ssessIIEnt data sheets, carrying out calculation with respect to unusual or complex input transactions requiring above average knowledge of the Standard Assessment System, case law; - as assigned. The skills and knowledge required to perform the work, as stated in the Position Specification form are: Successful completion of 2 years, preferably 2 years, of a secondary school course of study; thorough knowledge of assessment information processing gained through 5-6 years related experience; ability to communicate clearly both orally end in-writing; ability to instruct, and supervise the work of subordinates. Those qualifictions were stated in a slightly different form in the advertisement for the job in Topical Job Mart (Ex. 3), with assessment information processing only preferable: Qualifications: successful completion of two, preferably four years of a secondary school course of study; thorough knowledge of assess- ment information processing gained through several years related experience preferable; ability to instruct and supervise subordinates' work. Mr. Remark testified'as to his qualifications and ability to fill, the position. He satisfies the educational requirements, having completed Grade 13 and almost one year of university. He has knowledge of the assessment system acquired through his years of related work in the Assessment Office. He has had access to Appraisal Sheets and Assessment Data Sheets in his work in the Mapping Section and has periodically responded to questions from Assessment Clerks as to the assessors' data on Appraisal Sheets regarding property location or owner. He testified that his past job history showed his ability to communicate orally and in writing and to instruct and work with subordinates. That history, in brief, included supervision of up to 40 people when he was in the fruit and vegetable farming business (1943-50); supervision of a ( -g - secretary and two salesmen while in the real estate and insurance business (1953-1971); scheduling of workmen, while operating a management firm for home remodelling (1965-70); and scheduling some work while Canadian General Manager for Foley Greenhouse of Chicago (1960-65). Mr. Remark acknowledged that he has noknowledge of keypunch operation or information processing, nor has he ever worked in the Assessment Services Section. His disciplinary record includes a 1972 warning for unauthorized absence and a 1975 warning about complaints to the employer that the grievor had issued NSF cheques. . Since this is a case in which relative ability of the grievor and the incumbent is in question, it is important to set out Mrs. Bridson's qualifications. She applied for the vacancy while acting as Unit Leader (Clerk 4) in the OHIP Office of the Ministry of Health in Windsor. She joined the civil service on January 1, 1970. Mrs. Bridson satisfies the educational qualifications, having completed Grade 12. As well, she has a certificate obtained in a management training course in the Ministry of Health. She has five years of Unit Leader experience at OHIP, which have given her experience in work scheduling, supervising other employees, and preparing employee evaluations. Her recormnendations from her supervisors were very favourable. She has extensive experience in processing computer oriented data, although OHIP's progransnes and the information processed differed from that in the assessment prograrrane. Mrs. Bridson had no experience in processing assessment data. The applicants for the job were interviewed by a panel of three: - 10 - M. Quinn (then Regional Assessment Commissioner for the Essex Region); N. Johnstone (Manager, Assessment Services); W. Oernick (Personnel Services). After interviewing the applicants, they rated Mrs. Bridson highest. Part of their reason for doing so stemned from a priority system established by the panel before the interviews. According to Mr. Quinn's testimony, their first priority was someone with both supervisory and assessment clerk experience. Failing that, they sought someone with supervisory experience and an ability to assimilate standard assessment information in a relatively short period. Third priority was demonstrated experience in all facets of assessment clerk functions with an apparent potential to take on supervisory functions. With these priorities in mind, the panel chose .Mrs. Bridson. While she lacked assessment experience, they felt that she possessed the necessary supervisory experience and an ability to learn about assessment information processing.quickly. If one looks at the "Interviewer's Evaluation" forms completed by Quinn and Bernick (Ex. 8, 9, 11. 12), one finds that the two applicants were not that far apart. Dernick rated Bridson's and Remark's 'education "sufficiently prepared", while Quinn rated both as "less than required but can pick up on the job." As for Experience, Oernick rated Bridson "sufficient for position" and Remark "Needs more but can be trained." Quinn rated Bridson with the latter rating and Remark with "Not enough." On considering the evidence~and the skills and knowledge required in the Position Specification, this Board has concluded that the employer - - -11 - erred in not finding the two applicants "relatively equal." The evidence shows that neither Bridson nor Remark met the qualifications set out in the Position Specification form, in that neither had the requisite "thorough knowledge of assessment information processing gained through 5-6 years related experience". Remark possessed assessment information, while Bridson had information processing skills. Neither had the combined requirement. Both had supervisory.experience, although Bridson's was more recent and related to data processing. The interview panel focussed on this fact, plus. "personal suitability" factors in choosing Mrs. Bridson. Some of the personal suitability factors which entered into the consideration of Mr. Remark must be regarded as irrelevant. The panel gave consideration to personal financial problems in 1975 and to a disciplinary warning in 1972; Neither was relevant: the latter because of its staleness and the former because of its irrelevance to the job and its questionable nature as a basis for discipline. In addition the panel considered "absenteeism" problems which were not substantiated in evidence before this Board. This Board, in assessing the evidence and the position specification has concluded that the two applicants were relatively equal in qualifications and ability to do the job. Both would need.further training - Bridson in assessment information and Remark in information processing. Detailed procedural manuals are available in the Ministry to aid in this task. By article 4.3 of the collective agreement, when candidates are relatively equal, length of cdntinuous service becomes a consideration. , . . - 12. - Because Mrs. Bridsbn has been with the civil service since January 1, 1970 and Mr. Remark since May 15, 1971, Mrs. Bridson has the greater claim to the job. As a result, the grievance is denied. The Board wishes to add some further comments with regard to the interview and selection procedure employed by the interview panel. As the Board has pointed out on previous occasions, fairness in selection procedure is important to employee acceptance and trust of the job selection procedure. Once again, however, the process used has failed to meet ideal standards of fairness. An initial problem lies with the questions posed in the interview. While Mr. Quinn tried to be fair by drawing up questions in advance to pose to all applicants (Ex,. 7), the nature of his questions leaves something to be desired. They are largely directed to personal suitability and supervisory skills, leaving untested the candidate's knowledge of assessment information. Yet knowledge of the assessment system is a major aspect of the job. Questions are only helpful and fair if they reflect the requirements of the job and test the applicant's suitability therefor. A second problem with the procedure used arises out of the standard "Interviewer's Evaluation" form. Again, the appearance of or effort at fairness falls short. The form has seven components - six are "objective" (personal appearance, ability to express self, education, interest expressed . in job, experience, self-confidence) and.one "open" (remarks). These ., "objective" categories, aside from education and experience, fail to reflect, the job requirements, and even these categories are so open-ended as to be of little aid in evaluation of applicants. Surely the form should carry a checklist of items relevant to the particular job to ensure that i ,: I. ,r - 13 - applicants are graded by the same standards. Finally, the Board was concerned by the attention to personal suitability factors in Mr. Remark's case that were not relevant to his ability to fill the job sought,(as mentioned above),. For the reasons set out above; the grievance is dismissed. Dated at Toronto, Ontario this 29th day of January, 1979 Katherine Swinton Vice-Chairman I concur Gerald Griffin Member I concur --~ Ron Cochrane Member