HomeMy WebLinkAbout1981-0272.McNamara.82-04-02IN THE MATTER Ci AN ARBITRATION
Under The
CROWN EMPL9YEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
\
Between:
Before:
For .the Grievor:
(OPSEU) Mary E. McNamara
and
Grievor
The Cronn in Right of Ontario
Ministry of Consumer & Commercial Relations
Employer
R. J. Roberts - Vice-Chairman
R. Xussell - Member
A.G. stapletcn - Member
A. Luczay, Grievance/Classification Officer
Grievance Section
Ontario~Public Service Employees Union
I. Roland, Counsel
Cameron, Srewin & Scott
For the Employer:
J. Zarudny, Counsel
Crown Law Office Civil
Ministry of the Attorney General
Hearing:
December lD, I981
February 4, 1982
February 9, 1982
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AWARD
In the fall of 1981, we issued in this matter an Inter
Award rejecting two of three preliminary objections raised
by counsel for the Employer in this case. Thereafter, cn
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December 10, 1981, we entertained the third objection of the
Employer. This objection related to certain actions of the
Employer which might arguably have extended the closing date for
the competition involved in this case. Counsel for the Employer
argued that the Employer did not, as a matter of law, have a
right to do this and was incapable of waiving its own breach
because of the detrimental impact upon two applicants o'lher
than the grievor who had applied in a timely matter for.the
original competition. We rejected this submission of counsel
for the Employer. It seemed to us that counsel was attempting
to plead in the Employer's behalf the rights of third parties.
This, the Employer has no right to do.' We then turned to
hearing the merits of the case.
On the merits, the Union submittedon behalf of the grievor
that a job competition which she entered was unfair, unjust
and contrary to the collective agreement and that the grievor
should have been awarded the position in question. The %ployer
contested these,submissions, claiming that a fai- assessment
of the candidates had been- made. The successful incumbent 1%.
McDonald was notified of,her right to be represented in the
hearing of this matter and she was, in fact, aresent during
two oE the three days of hearing.
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Upon due consideration o f the evidence and arguz.ent cf
the parties, we conclude that the selection prccedure adcpted
by the Employer in this case was seriously flawed and that
as a result the matter must be remitted to the Smployer with
instructions to repeat the competition which gave rise to this
grievance. We do not, however, award the position in question
to the grievor because of our lack of "confidence that 'he
selection procedure had brought forth all the relevant material
which the employer should have considered." Re Chen & Talon
and the Crown and Right of Ontario (Ministry of Health) (Decezzber
14, 1981), G.S.B. No. 70/79 (Brent), at 12. . .
The grievor is employed as a Clerk 2 (Pee Book) at the
Land Registry Office, Property Rights Division, in Windsor,
Ontario. This office deals 'primarily with the maintenance of
records relating to matters affecting title to land, such
as sales, liens, or easements. These records are consulted
regularly by title searchers and lawyers engaged in representing
oarties dealing with the purchase and sale, etc., of real estate.
The office in which the grievor works is not large. There
are few employees, relatively speaking, and the atmosphere in
which the1 carry out-the performance of their duties appears
to have considerably less formality than might be expected
in a larger government facilty. Because of this, management
personnel in the office do not seen to have had a great deal
of exposure to the intricacies of the administration of labour -
management relations under the collective agreement. -.As 7\:
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was reflected in testimony at the hearing that the grier/ance
herein was one of the only grievances management perscnnel had
ever seen. Needless to say, the filing of the grievance appeared
to cause a considerable stir among all of the employees in the
office.
The grievance relates to a selection procedure which was
established in order to fill a vacancy for a position called,
"Abstract Index Clerk". This position was at the Clerk 3 General
level. Obviously, it represented an.opportunity for promotion
of the grievor. The Competition Announcement for this position
was posted in early January, 1981. The announcement specified
that it was "restricted to incumbents of the General Clerk 2
Positions in the Land Registry Office at Windsor".
The grievor was among three applicants for this job. The
others were Ms. Pearl Palmer and Ms. Denise Morneau. Ms. Joyce
Girard, the Deputy Land Registrar at the office, apparently
decided that it would be a good idea to give to each candidate
three days experience in the Abstract Clerk position prior to
conducting any interviews. In her testimony at the hearing,
Ms. Girard explained the relevance of this three day period to
what she planned to do in the interview procedure. She testified
that, "i?e knew that no one would have any abstracting experiesce.
We required someone to catch on quickly to the technical side
of the job. We also needed a cooperative employee with a gcod
attendance record because we are short-staffed in abstracting."
Ms. Girard further testified that she thereupon drafted a series
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of questions to ask during the interview which included several
technical questions about abstracting. She testZi~ ..that she d',ii so
because "we wanted to assess how much [the three cacdidates:
got out of the their three days each of astractin.g." Xe take
from this that Ms. Girard thought that a good Rerformance cn
such questions would be a good indication of a candidate's
ability to catch on quickly to the technical side of the job.
Apparently Ms. Girard gleaned information relating to tnr
other attributes that she deemed important, i.e., cooperation
and attendance,from reviewing the personnel files of the three
candidates. The other two members of the interview pane,l, 1'
the griever's supervisor, Ms. Slais, and another supervisor,
LMr. Shaheen,. did not review the personnel files. They apparently
considered that they had sufficient personal supervisory !c?ow-
ledge as to Lhe characteristics, etc., of t!!e applicants.
The panel interviewed each individual candidate on January
14, 1981. In the course of the interview the following questions
'were asked:
1.
2.
3.
4.
5.
Name 5 of the 8 information columns shown on
Abstract Indexes.
How much of a description of land is required
to be entered in the Remarks Column of the
Abstract Index sheet, for each original.
Monies shown in Consideration Column is obtained
from where?
When abstracting the whole of a lot on a registered
plan you notice the previous owner does not appear
on the deed, what would you do?
If title searcher or lawyer draws mistake in the
Abstract book to your attention, what steps would you take?
i .
6.
7.
8.
9.
10.
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Who in this office have the authorit to
sign corrections in the Abstract Indexes?
What is collating and why is this procedu:e
done in this and othe: Regist,y Offices?
If you disagreed with your Su?ervisor's
verbal assessment of your work or work habits
how would you handle it?
Why do you feel you should be 2icked for the
position over the other applicants?
During busy periods and when required, you will
be expected to abstract a minimum of 60 inst,wents each day. Do you feel this is fair? If not, why?
') The responses of each candidate to the questions were not
scored. It seems that after a candidate left the interview
room, the members of the panel discussed.with each other their
impressions of the candidate and the sense of their discussion
was recorded by Ms. Girard. No notes of individual comments
of panel members were kept. After all three candidates had be-3
interviewed, the panel apparently decided that none was suitable
to the job and that a second competition would have to be held.
MS. Girard so informed each candidate. The grievor initially
appeared to accept her rejection, but upon reflection decided
that she should have been awarded the job. This grievance
followed.
The only member of the interview panel to testify at the
hearing, at least with respect to the merits of the grievance,
,was Ms. Girard. She testified that the panel had three reasons
for rejecting the grievor. The first reason was the sense of
the panel that after three days'exposure to Lhe abstracting
job, the grievor should have been able to answer most of the
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technical questions which had been propounded, and the grie-/or
did not. Secondly, the grievor was considered to be lackins
in cooperation. Xs. Girard testified that the grievor was a
difficult person to supervise and did not get onwell with her
coworkers. Finally, it was considered by the panel that the
grievor's attendance and punctuality were not on the level
required for the job of Abstract Clerk.
Subsequent testimony.by Ms. Girard, however, cast doubt ,
on the above conclusions. For example, later in her testimony,
~\ Ms. Girard testified that perhaps the griever% interview was
adequate, but it was the past record of the grievor (regarding
punctuality) and supervisory knowledge of her lack of cooperation
that made the panel decide that she was not qualified. With
respect to these latter claims, however, it was conceded that
there was nothing in the grievor's personnel record to indicate
that she had been warned or disc,iplined with respect to problems
with her coworkers. Similarly, there was nothing in the persomel
'record to indicate that puncuality was a problem other,than a
six-month appraisal form which, by the time of the inte,Tiew,
would have been outdatad.
FinaLly, Ms. Girard gave testimony tending to indicate that
at least one member of,the panel, *Ms. 3lais, mrght have be--n
biased,against the grievor. For example, when AAe panel con-
sidered the candidates after all interviews were ccmpleted, Xs.
Blais apparently commented that she wished that she could re-
commend the grievor for the promotion if for no other reascn
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than to get the grievor cut of her hair, but 3at she cculi
not do so. In this regard, there was 20 doubt that thera was
considerable friction between the grievor and 5s. 3lais. T 1-i e
grievor acknowledged this in her own testisony. Other witnesses
confirmed that the two often were at odds with each other.
Section 4.3 of the collective agreement requires that in
determining whether any candidate ought to be awarded a particular
promotion, "the Employer shall give primary consideration to
qualifications and ability to perform the required duties." In
Re Quinn and Ministrv of Transoortation and Communications (December
13, 19791, G.S.B. No. 9/78 (Pritchard), it was emphasised "that
on meeting the obligations under [this section] . . . the employer
must employ a process of decision-making designed to consider
the relative qualifications and ability of the candidatesin a
competition which will ensure that sufficient relevant informaticn
is adduced... in order [to permit] . ..comparisons in Ahe confi2exe
that they are able to thoroughly [and fairly assess]... the
applicants." Id. at 7-8. The Board in Quinn found that the
selection process did not meet these requirements because "(1)
. ..only one of the three interviewers had read the personnel
files of the candidates: (2) . ..the supervisors of the candidates
were not asked to provide an evaluation of their work performance;
(3)... no information was gathered about the candidates' ability
to perform the major part of the job; and (4). . ..the qriestions
posed at the interview were at most an indirect device to
discover whether the candidates possessed leadership ability
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[relevant to the job in question]." 3e Chen and Talon, surra,
at 10-11.
We believe that the selection procedure employed in the
present case shares some of the same deficiencies 5~: >ere
isolated in Quinn. The most serious of these seems to us to
be the nature of the questions posed at the interview. 3y >!S.
Girard's testimony, the majority of these questions were hot
designed to assess relative ability and qualifications to do
the job of Abstract Clerk. The questions were designed to
assess ho*w quickly the candidate would catch on to the technical
side of the job. This was not a requirement of the job oer se; A-
rather, this requirement emanated from the fact that the office
was short-staffed. in the area of abstracting. The collective
agreement does not say anything about taking into account such
extrinsic matters as expediency in assessing relative ability
and qualifications to do a particular job. We are not inclined
to legitimize taking into account such considerations.
* Some other procedural defects also are matters of concern.
All of the interviewers ought to have reviewed the personnel
records of the candidates. The apparent bias of Xs. 3lais against
the grievor, which seemed to be well known to everyone in the
office, including Ms. Girard, might have dictated excluding he:
from the interview panel. We say "might", because in a previous
award of this Board it-was indicated that strong evidence of
bias would be required "before we would disqualify [an inter-
viewer] from participation in deciding among applicants for
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a senior position in [the interviewer's Office] 3e Chiasson
and the Crown in Richt of Ontario, Xinistrr of the AL'c-~p~f ._-u_.._
General (July 7, 1991), G.S.S. Nos. 262/79; 512/90 (Kruger),
at 6.
Having determined that the selection procedure used in this
.case was seriously flawed, we turn to the question of what relief
ought to be granted to the grievor. This does not, in our view,
aooear to constitute a case in which we wculd be entitled to --
substitute our judgment for that of the Employer in determining
who ought to be promoted to'the Abstract Clerk position. Because
the questions which were asked at the interview were inappropriate
to determining qualifications and ability to do the job "it
would be unwise and inproper for us to make a judgment on
which candidate, if any, ought to succeed". Quinn at 8. As
was stated in Chen and Talon, suora:
In this case, there are undoubtedly difficulties
in remitting the matter to the employer to cure
the defects in the process along the lines of the Quinn criteria. A great deal of time has
passed since the competition was held... . While
these problems are real, they can be surmounted
and, unlike the board in Kosnaskie (411791,
we do not have evidence from the successful candi-
date and are not in a good position to assess the
relative merits of the candidates. iMoreover, in
Kosnaskie the selection criteria were found to
be reasonable and the rating system was not unfair;
therefore, the review of the employer's decision
could be made with confidence that the selection
procedure had brought forth all the relevant material.
which the employer should have considered. This is
not the case here. Id. at 12. -
In accordance with this reasoning, we must reach the opposite
conclusion to that reached in Chaisson, sucra, although the
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cases share certain factual similarities. it will be noted
that in Chaisson, there was no doubt that "the questicnsposed
to the candidates were relevant and reasonable",& at 5.
r; -,.A;,." T5.e matter is remitted to t:he Employer for tLhe ins,-..,,--,,,.
of a new selection procedure which avoids the procedural defects
of the competition under review. This Award has the effect of
voiding the second competition which led to the appointment
on a permanent basis of Mrs. McDonald to the Abstract Clrrk
position. Purther, the new competition must be limited to Lye
same candidates as participated in the original, i.e. the grievor,
Pearl Palmer, and Denise Morneau. We believe that it is necessa,q
to limit the competition inthLs way to comport with the previcus
decisions of this Board in Re Marks and the Crown in Riaht of
Ontario, Ministrv of Natural Resources (April 23, 19811, G.S.3..
No. 566/80 (Weatherill) and Re Chittle and the Crcwn in Right of
Ontario, Ministry of Lhe Attornev General (July 24, 1981) G.S.3.
No. 273180 (Verity). The Board will remain seised of ';ne matter
'against the possibility of the parties encountering difficulty
in implementing the terms of this Award.
Dated at London, Ontario this dz;I*
R.i. Ro&&s, vice-Chairman
c.
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1 c(,nc?lr A. G.,%zpleton, ?!erber
I ccli?alr
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