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Home My WebLink About1981-0347.Worsley.82-03-04IN THE MATTER OF AN ARBITRATIONS Under THE CROWN EMPLOYEES COLLECTIVE BARGA!NING ACT .&fore THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Ms. Judy Worsley) Before: The Crown in Right of Ontario (Ministry of Government Services) Mr. P. Draper - Vice-Chairman ,Llr. R. Cochrane - hiember Ur. W. A. Lobraico - llember For the Griever: Mr. S. Grant Ca;llero;r, Brewin Zi Scott Barristers 5( Solicitors For the Employer: 41s. J. ?,,linor Ministry of the Attorney General Intervener Hearing: kliss a. Flis October lsj IYSI January i3, IYSZ wlevor, -2- DECISION The Grievor, Judy Worsley, was an applicant to Competition AG 38/SI for the position of Courtroom Clerk, Unified Family Court, Hamilton, classified Clerk 4 General, which was held in February, 1981. Miss Worsley grieves that her qualifications and ability were not given proper recognition and requests that the competition be set aside and a new competition ordered. The Employer submits that the competition was fairly conducted and that the decision of the Selection Committee was reasonable and shouid be upheld. There were eighteen applicants to the competition, six of whom were interviewed. The Selection Committee consisted of three members: Gerald McNeilly, Clerk of the Unified Family Court; Judy Clyne, Trial Court Coordinator, Criminal Division, County Court, Hamilton; and Ruth Maillard, Personnel Administrator, LMinistry of the Attorney General, .Toronto. The competition notice was drafted by Mrs. Maillard from particulars furnished by Mr. McNeilly. The questions to be used in the interviews were drawn up by (Mr. (McNeilly who also assigned point values to the four categories into which they were divided: ability to deal with the public and with members of the judiciary and the legal profession (30 points); organizational skills (20 points); knowledge of the Unified Family Court (10 points); and experience in court related areas (10 points). Each member of the Selection Committee had an Interview Rating Sheet on which the points awarded to each applicant in each category and in total were recorded. When all applicants had been interviewed they were ranked by each member of the Committee in order of points awarded. The successful applicant, Bernadette Flis, was awarded, respectively, 51, 51 and 53 points, had the highest score overall (155 points) and was ranked first by all three members. The Crievor was awarded. respectively. 47, 4S -3- and 4S points, had the second highest score overall (143 points) and was ranked second by one member and third by the other two. We note, by wajr of clarification, that a third applicant, Sandra Lechowicz, had the third highest score overall and was ranked second by two members and third by the other. Miss .Lechowicz did not grieve concerning the outcome of the competition and, in any event, the disposition of her appiication by the Selection Committee is not at issue here. It is not argued on behalf of the Grievor that the Committee placed too much reliance on the interviews and, in the absence oi evidence to the contrary, we must take it that the usual sources of information about the work performance of the applicants were adequately canvassed. Further, there is nothing in the testimony of the three memoers of the Selection Committee to suggest that such information was the basis for the difference in the relative rankings of the Griever and iMiss Flis. We are left, then, with the results of the interviews as the rationale for those rankings. We find nothing objectionable in the format or the conduct of the interviews. The questions used appear to us to be adequate to reveal the qualifications and ability of the applicants and to be related to the requirements of the vacant position. Tine Grievor testified that she had full opportunity to answer the questions put to her and there is no allegation of bias on the part of the Committee. It is not in dispute that, on the basis of the points awarded, Miss Flis was the best qualified of the applicants; that, on the same basis, the Griever was qualified for the vacant position; and that the Grievor had greater seniority (albeit by a small margin) than Miss Flis did. I The Board has before it evidence as to the education and work experience of the Griever and of Miss Flis; the requirements of the vacant position; and the recollections of the members of the Selection Committee and of the Griever as to the performance of those two applicants in their interviews. In the normal course such evidence would determine whether or not the Grievor has met the burden of proving that her qualifications and ability are relatively equal to those of Uiss Flis. However, in the present circumstances, that question turns on the evidence of the results of the interviews conducted by the Selection Committee. The testimony of the members of the Committee is that they were unanimous in the opinion that Miss Flis was the best of the applicants and that there was no doubt in their minds that she should be selected for the vacant position. In Mr. McNeilly’s phrase it was “not a toss-up”. He was frank to concede that on the basis of the points awarded the qualifications and ability of the Crievor and <Viss Flis have to be regarded as relatively equal, although that had not been his opinion at the time of the interviews. 1Mr. McNeiIly had awarded Miss Flis 51 points and the Grievor 47 points overall. Miss Clyne’s opinion was that the Griever and Miss Flis could not be considered to have relatively equal qualifications and ability where the differ.ence in points awarded in any category was more than one point. Miss Clyne had awarded Miss Flis 51 points and the Crievor 48 points overall. Mrs. Maillard maintained that rating is simply putting a number on answers; that everyone has an individual rating style; that the points awarded were not the finai determinant; and that &\iss Flis and the Griever were not relatively equal in the most significant requirements of the vacant position. (Mrs. Uaillard had awarded Miss Flis 53 points and the Grievor 45 points overall.. -5- There is also testimony from the members of the Selection Committee to the effect that certain considerations based on subjective individual standards were not expressed in the points awarded to applicants but, when taken into account, confirmed the selection of Uiss Flis. ‘2e understand that to mean that the selection process here contained elements in addition to those on which points were awarded and which influenced, if not determined, the outcome of the competition. Surely everything that was said, or done, or otherwise conveyed in the course of the interviews should have been reflected in the points aivarded. Even considerations calling for highly subjective judgments, such as initiative, or stability, or tact, are commonly entertained in the selection process and, though their measurement may be difficult, are expressed by means of some rating formula or standard. In our opinion, the Selection Committee, having chosen to interview certain applicants and having devised a rating system by which to measure the performance of applicants in those interviews, must be presumed to have based their opinions (and the subsequent ranking) of the applicants interviewed on the results of that measurement. The issue for determination by the Board is whether or not the Selection Committee acted reasonably and correctly in finding,‘on the basis of its own evaluations, that the qualifications and ability of the Grievor and iMiss Flis were not relatively equal and, as a consequence, not giving consideration to seniority as required by PIrticle 4.3 of the Collective Agreement. There is no definitive rule of which we are aware, no specific percentage difference for example, according to which relative equality is -6- to be determined. The view found in a number of arbitral decisions is tha? if the difference by which one applicant is better qualified than another is less than substantial and demonstrable, they are relatively equally qualified. Certainly, relative equality differs from, because lesser in degree than, equality. Nor is it simply a euphemism for equality, absolute equality being, in any event, an inappropriate and impracticable notion to apply in the selection process. It does seem to us reasonable to assume that the concept of relative equality, at the very least, is intended to serve a practical purcose,.not to satisfy a strict definition. We find, on balance, that there was not a substantial and demonstrable difference in qualifications and ability between the Griever and [Miss Flis; that the Selection Committee did not act reasonably or .correctly in deciding that the two applicants concerned were not relatively equal in qualifications and ability; and that the Selection Committee failed to comply with the requirements of Article 4.3 of the Collective Agreement. Had the proper decision as to relative equality been made, the Selection Committee would then have been required to give consideration to seniority. That this would not necessarily have led to a different result of the competition is irrelevant. It is the consideration of seniority that is crucial. The grievance is upheld. The result of Competition AG3S/Sl is set aside and it is ordered that the Employer promptly hold a new competition for the purpose of -7- selecting a public servant for the position of Courtroom Clerk, Unified Family Court, Hamilton. The successful applicant in the competition, Bernadette Flis, was present at the nearing and was afforded full opportunity to participate in the proceedings. Dated at Toronto th% 4th day of March, 1982. Q& h*bp P. Draper - Vice-Chairman “I concur” R. Cochrane - 3ember “1 concur” W. A. Lobraico - !dernber