HomeMy WebLinkAbout1981-0485.Newburn and Phillips.82-03-05IN TiiE KATTER'OF AN ARBITRATION
_,. ~..
tinder The
CROWN i?$pLDYEES COLLECTIVE SXGAINING ACT
Before
Y
Between:
THE GRIEVANCE SiTTLiME3T BOARD
i R. Newburn and K. Ph:'iT;ps
Griovcrs,
and
The Crown !n Pisht of O~ta?iO
(Finistry of iiiaithj
Empi cjfr .
Sefore: R. L. Vfrjty, C.C. - Yico-Chairm3n
I). 8. Wddl?ton - ikmber
F. Narrian - Xerriber
FOP the Grievor:
G. Richa&, G;iev3nce/Classi:icaticn Officer
Ontario Public Service f,zQl9yees Unim
AWARD
The Grievors .I Robbie Newburn and Kenneth Phillips,
were uns&ccessful Applicants for the position of Attendant 2
at the Oak Ridge Mental Health Centre, Penetanguishene. The
competition in question was for the purpose of employing 12
persons in the classification of Attendant 2 at Oak Ridge.
The posting- in question (Exhibit3j reads as follows:
"MINISTRY OF HEALTH L
MENTAL HEALTH CENTRH, PENETANGLJISHENE
REQUIRES 12
ATTENDANTS
(RESTRICTED)
Classification:
Salary Ranges:
Attendant 2, Oak Ridge
$9.01 - $9.56 p.h.
$9.37 - $9.94 p.m. (July 1'81)
Duties:
You will be required to provide nursing care to mentally ill
patients in a Maximum Security Hospital and to assist with
the administrative activities of the assigned ward.
Qualifications:
Current registration as a Nursing Assistant with the, College
of Nurses of Ontario plus a post-graduate course in Psychiatric
Nursing. Ability to deal tactfully and effectively with the
'type of patients admitted to Oak Ridge; ability to make good
observations; ability to cope with emergencies: ability to
maintain good working relationships with patients and co-workers:
ability to follow oral-and written instructions; good mental
and physical health.
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Qualified Civil Servants may apply to: Qualified Civil Servants may apply to: Regional Personnel Regional Personnel
Administrator, Human Resources Branch,. c/o Mental Health Administrator, Human Resources Branch,. c/o Mental Health
Centre, Centre, Penetanguishene. Penetanguishene.
Note: Please advise.us of your work area location and
'phone number where you can be reached.
ONTARIO HUMAN RIGHTS EXEMPTION #102
Posting Date:
Closing Date:
Area of Search:
Competition no:
June 11, 1981.
June 25, 1981.
Hospital Facility Only
HL-32-38-81"
,Twenty candidates applied for the 12 positions and
a three man Selection Board filled those positions after inter-
viewing all candidates. Of the 12 successful incumbents, the
Parties agreed that only two of those incumbents, namely Mr.
Wayne Miller and Mr. William Beauchamp (the 11th and 12th
successful incumbents selected) would be affected by this
Arbitration. Both Mr. Miller and Mr. Beauchamp were given
notice of the Hearing and attended in person together with the
Union Representative Mr. Wayne Ferris. After having been advised
of their rights, neither Mr. Miller or Mr. Beauchamp gave evidence
or made representations to the Board. .
The Grievances were f iled pursuant to Article 4.3 of
the Collective Agreement. That Article reads as follows:
"4.3 In filling a 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
consideration."
.
The Grievors allege that the interview procedure was
"unjust" and the settlement requested was that the Attendant 2
position at Oak Ridge~be awarded to each of the Grievors. At
i the Hearing it was agreed that the seniority dates of each of
the Parties in question was as follows: '.
Newburn September 5, 1978
Phillips January 15, 1979
Miller November 13, 1979
Beauchamp November 13, 1979
~:
Each Grievers' seniority pre-dates the two successful
i
incumbents.
The Grievor, Kenneth Phillips, wasoriginally hired
as an Attendant 1 at Oak Ridge in January of 1979. He worked'
approximately one year on "H" ward tmder'the supervision of
Hector Adams, and as of March or April 1980, he was transferred
to "G" ward under the supervision of Mr. Herring. In September
1980, he was given "paid educational leave" by the Employer of
/
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to attend Georgian College of Applied Arts in the R.N.A. course.
Inthe spring of 1981, he successfully wrote the standard Provincial
R.N.A. examinatiOhi. Mr.' Phillips testified.that he attained a mark
of 82% in the Georgian College examination and 586 percentile points
out of a possible 700 score in the Provincial examination. He is
presently working as a Psychiatric Nursing Assistant 2 at the
Penetanguishene Regional Health Centre (located on the same property
as the Oak Ridge facility). The only evaluation of his work per-
formance was a letter from Mr. Herring (Exhibit 16). That letter is
a favourable account of Mr. Phillips' ability and his relationship
with patients. A second letter from Hector Adams dated November
17th,, 1981 was prepared at the request of Mr. Phillips subsequent
to the interview procedure. No weight shall be attached to this
letter for the reasons stated above.
The Grievor, Robbie Newburn, started his employment
with the Ministry as a summer student at the Mental Health Centre,
Penetanguishene in May of 1978. From.September of 1978 he worked
for approximately 18 months as an Attendant 1 at Oak Ridge in the.
I'D" ward. He is a graduate of the University of Toronto and has
two degrees -- a B.PH.E. and a B.ED. He too attended Georgian
College in the fall of 1980, and completed the Provincial R.N.A.
standard examination. His academic success is impressive. "he
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Board accepts his evidence that.he achieved a 92% standard in the .I
fall examination results at Georgian College, land a 95 - 97% mark
in the spring term. In the College of Nursing examinations, his
evidence was that he scored in the 600 percentile category out of
a possible 700. :Ir . Newburn received a favourable letter of
commendation from Dr. Sirchick, the Medical Director of Oak Ridge
in 1979, as a result of his handling of a difficult patient
situation. A student service record prepared in August of 1978 i'
.(admittedly somewhat stale-dated) states as follows (Exhibit 18):
"Ministry of Human
Health Resources
Branch STUDENT SERVICE RECORD
Surnames Initials Branch-Hospital
Newburn R.J. Mental Health Nursing
Centre, Penetanguishene
-
Work Performance Good 13 Average ClBelow Average 111
Recommended for Rehire Student rl GraduateuYesaNo@ -
Comments
A very well adjusted young man, was employed on the
ward asa regular male staff because of the shortage
of males and performed his duties very well. Was
extremely well liked by the patients and staff.
~Note : If the student has been recommended for
rehire, and wishes to be considered for
summer employment next year, it is
advisable to submit an application
early in January.
Si,gnature of Supervisor Date Title .-
Aug lo/78 Ward Supervisor
Ward 6
Reviewed By Date Title.
Aug lo/78 Director of Nursing"
The three man Selection Board was comprised of Messrs.
Sajan, the Oak Ridge Chief Attendant, Lacroix, a Ward Supervisor
and Byrnes also a Ward Supervisor. Twenty Applicants applied for
the 12 vacancies for the classification of Attendant 2 at Oak
Ridge. Eighteen of these Applicants had:successfully completed
the training program at Georgian College, one was a Psychiatrist
Nursing Assistant 3 classification, and one was unqualified and
interviewed by the Selection Board in error.
The competition was conducted by way of brief interviews
of approximately 10 to 12 minutesduration 'on the average, with each
Applicant being asked the same questions as follows (Exhibit 6):
"COMPETITION #H.L.-32-38-81.
Group Two Attendant Oak Ridge
1. In your opinion what are some of the more important
duties of.a group two attendant in Oak Ridge?
2. Maintaining a harmonious climate with patients in
order. to gain and hold their confidence, is a duty
stated in the position specification. What does this mean?
4.
5.
6.
7.
8.
9.
10.
namely
Who is the direct supervisor of the group two
attendant position?
Why do you want to be an Oak Ridge attendant?
What part of the R.N.A. course did you.personally
find the most interesting and why?
Suppose your assigned to medication duties. YOU
suddenly realize that you have made a mistake and
gave the wrong medication to a patient, what do you
do about it?
Suppose you walk, into the sunroom just as a patient
punches out a window. you see at once that the
patient is not acting agressive towards you, but there
is a great deal of blood. What would you do?
What is the general rule for keys that applies to
everyone in Oak Ridge?
Suppose you are making a round on the corridor, you
observe a patient in his room attempting to injur
himself and you have the room key in your pocket.
What would you do about it?"
Seven factors were considered by the Selection Board,
qualifications, knowledge of position, communication skills,
nursing knowledge, security awareness, attendance record and general
c impressions. All of these factors were weighted equally in the
scoring of each Applicant's interview. Qualifications related
directly to the posting and all candidates were awarded a perfect
score of 10 marks. Knowledge of the position was covered by questions
1 to 4 inclusive;- communication skills in questions 5 and 6; nursing
knowledge in questions 7 and 8 and security awareness in questions
9 and 10.
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Attendance Record was described on each Selection
Board member!:?score sheet as follows:
"ATTENDANCE RECORD:
-consideration to be given for extended illness as opposed to 1 & 2 day absences
0 to 5 days ill---10 pts.
6to16" (1 --- 5 pts.
11 or more-------- 0 pts."
General Impressions were simi larly expressed as
follows:
"GENERAL IMPRESSIONS:
(score 2 pts. for each)
-personal appearance
-motivation
-suitability
-initiative
-general deportment"
The score sheet of each member of the Selection Board
was introduced into evidence :nd a sub-nary score sheet (Exhibit 12)
was also presented. Inthe scoring procedure, Fr. Newburn received
147 points while Iyr. Phillips was awarded 160. Mr. Beauchamp
received 170 marks and Mr. Miller 181.
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The Union argued, in part, that the process followed
by the Selection Board was totally unsatisfactory and that the
competition was essentially unfair. Mr. Richards argued that
seniority should be the governing factor on the basis of
relative equality of the ~four Applicants in question.
Mr. Greenbaum argued that the selection: procedure
was fair, that the Applicants were not relatively equal, and
that the Grievors had failed to establish a prima facie case.
In a determination of the issue, the Board is concerned
about an evidentiary problem. The Union called two witnesses,
namely Mr. Phillips and Mr. Newburn and in addition introduced
19 Exhibits. Mr. Greenbaum, representing the Employer, called
no evidence.
We are of the opinion that thepresentation of this
c case by the Employer was totally unsatisfactory.. We find that the
Union did establish a prima facie case, that the Grievors were at
leastequal in ability and qualifications to the two successful
Applicants, Mr. Beauchamp and Mr. Miller. 1n our view, at the
conclusion of the Grievers" case, the evidential burden shifted
to the Employer to explain and justify Management's decision.
iqe accept the evidence of the two Grievors in the absence of any
evidence to the contrary. The Board is not assisted by the Employer
as to the relative merits of the qualifications and the abilities
of the successful incumbents Mr. Phillips and Mr. Beauchamp, with
the exception of their application forms (Exhibits 10 and ll), and
the individual scoring of each member of the Selection Board, and
the total composite scores of each candidate (Exhibit 12). There
is no evidence before the Board of the appropriateness of the
Selection Board procedure from the Employer's standpoint. Similarly,
we have no evidence to establish whether.the Selection Board reviewed
the personnel files of each Applicant or whether the Applicants'
Supervisors were asked for evaluations, and-also whether there was
any systematic information about each of the Applicants -- three of
the four tests set forth in the Quinn Award of Vice-Chairman J.R.S.
Prichard 9/78.
This Board is of the~view that the Employer. has made a
serious tactical error in its failure to call evidence. We hasten
to point out that the strategy pursued by the Employer's. Counsel,
Idr . Greenbaum was not a motion for non-suit. If such had been the
case, the Employer's Counsel would have been required to bring a
motion for non-suit at the conclusion of the Grievors' case. NO
such motion was brought by the Employer. Ijad such a motion been
presented by the Employer's Counsel, it would have been the duty
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of this Board to determine whether there had been enough evidence,
if ,left uncontradicted, to establish a case in favour of the Grievors.
The Board's responsibility then would have been to put the Employer
to its election as to whether it wished to call evidence. In the
event that the Employer elected to call no evidence, the Board must
then assess the evidence for probative sufficiency. Alternatively,
had the Employer lead evidence, the Board would not rule on the
merits of the motion at that time, but would reserve on the motion
until all of the evidence in the case had been heard.
On a motion for non-suit, from a procedural standpoint, a.
it is rare that.the Employer would elect to call no evidence if
the Employer had evidence to call, because in the event that the
Board were disposed to dismiss the motion for non-suit, the
Employer would then be precluded from adducing evidence in opposition
to the Grievors' case. As indicated previously, in the fact situation
at hand, this is not a case where the Employer brought a motion for
.~. non-suit. Rather, it is a case where the Employer chose from a
tactical standpoint.to introduce no evidence when called upon to do
so.
This Board is of the opinion that the Grievors have
established a prima facie case on the evidence presented in two
respects, namely:
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1. That on the uncontested evidence presented, the
Selection Board procedure is defective.
2. That in the absence of evidence to the contrary,
the evidence adduced established a case that the
GrieVOrS were "relatively equal" to the two
successful incumbents.
This Board is aware that the Selection Board was faced
with a difficult assignment in filling 12 vacancies simultaneously
from a list of 20 Applicants. On the evidence presented, this
Board is of the opinion that the procedures followed by the
Selection Board were superficial, highly subjective and accordingly
must be set aside. As Vice-Chairman Jolliffe stated in Siddiqi and
the Ministry of Correctional Services, 128/81 at page 25:
n . . . . . it has repeatedly been emphasized that
it is not sufficient for a selection board
to rely exclusively on interviews and written
applications......."
The evidence presented at this Hearing has convinced
the Board that the three man Selection board did in fact rely
exclusively on the interviews and applications. There is simply
no e<idence to the contrary. We are of the~ppinion that seniority
should have been the deciding factor because of the paucity of the
information before the Selection Board to make objective assessments~
on each candidate's relative ability to perform the job in question.
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bir. Sajan's score sheet indicated that the length
of each interview varied in length from 8 minutes (D. Hamlin) (1
to 10 minutes (B/Marion). Mr. Phillips' interview lasted
10 minutes and Mr. Newburn's interview was 11 minutes. In our
view, it is virtually impossible to make an objective consideration
on each Applicant's relative merits in that time frame.
There was no evidence before the Board that any con-
sideration was made of each Applicant's previous work experience,
and in this case both Grievors had considerable experience. There
was no evidence that the Grievors' Supervisors had been consulted.
i;ad that procedure been followed, the Selection Board would have
had a more objective appraisal. In our view, since the vast
majority of the Applicants had completed the Georgian College
training period, it would have been a relevant consideration to
have reviewed each candidate's examination results and any other
available College appraisals as an objective criteria.
The Board has no concerns about the relevancy of the
Selection Board's questions. However, the weight attached to
those questions (all seven factors being given a mark out of ten)
is surprising.- All questions do not appear to be of equal importance
in the performance of the job. As an example, "Attendance" is weighted
in the marking scheme equally with "Nursing Knowledge". Clearly, the
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weighting factor worked to the disadvantage of Mr. Newburn. In
the absence of any explanation to the contrary, we fail to under-
stand why each member of the Selection Board would give Newburn
a mark of 5 under the heading of "Attendance“ when the only
evidence is that he was absent for two minor periods in 1981
for legitimate health reasons. The comments of each member of
:,~.-
the Selection Board under the heading of "General Impressions"
/ further illustrate the subjectivity of the Board procedures.
On the evidence presented, we are of the view that both
Grievors should have been accorded higher scores in the area of
"Nursing Knowledge". In addition, >?ewburn should have received
higher marks on Attendance. On the evidence presented, the
reasonableness of the scores must be considered in the light of
the procedures followed. In our view, the difference inscores
between the two successful incumbents and the two Grievors should
have been reduced. On the evidence, the Board feels that the
\
Grievors were "relatively equal" to Messrs. Miller and Beauchamp,
and that in the light of the process followed, seniority should
have been the deciding factor.
Accordingly, these Grievances shall succeed. Both
Grievors shall be appointed forthwith to the position of Attendant
“.
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2 classification at Oak Ridge, and each Grievor shall be entitled
to compensation for all lost earnings from the date of the filling
of the vacancies to the date of the issuance of this Award. The
Board shall,retain jurisdiction in the event that the Parties are
unable to agree on the quantum of compensation.
DATED at Brantford, Ontario this 5thday of March, 1982.
R. L. Verity, Q.C. - Vice-Chairman
"I dissent" (See attached)
D. B. Hiddleton - Member
"I concur"
P. Warrian - 'Member
DISSENT OPINION
The hearing of this. case can be distinguished
from many similar cases already decided by the Grievance
.Settlement Board.in that the Employer chose not to call
any evidence in support of,,the SelectiqnBoard procedure
and results.
There is much that I can agree with in the
majority award wherein this tactical choice by Counsel
for the Ministry is discussed, and the apparent lack of
expertise in objective selection procedures, made manifest
by the uncontradicted evidence of the Grievors is outlined
in some detail.
I am, however, in disagreement on fundamental'
grounds with the thrust of the majority award which
determined that the, Grievers should have been the success-
ful job applicants for the position of Attendant 2, Oak
Ridge, with full retroactive effect, instead of the
incumbents Messrs. Miller and Beauchamp.
I notice in coming to this result the reliance
that the majority of this Board place 'on the Siciliqui ,
award 128/81 (Page 25).
The executive section at the close of that award
would fit this case and, in my opinion, should have been
adopted, and indeed there is much similarity between them
as follows:
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:
IFI the circumstances it is, in our
0pini0n, essential that an entirely
new Selection Board shorcld be found.
to conduct the competition, and that
it should be chosen and constituted
with appropriate directives by the
Civil Service Commission-of Ontario.
I would also agree, because of the particular
circumstances, to limit the rerun competition to the
Grievors and Messrs. Miller and Beauchamp (Four (4) in
all).
This award then could have been unanimous if
my views in the executive session and in the written
comment of January 6, 1982, to the Chairman of this
Board, had had any persuasive effect on my colleagues:
and, in the result, the pitfalls in jurisdictional and
remedial authority posed first in Zuibrycki, G.S.B.
1~'?8/76 t now under review by the Divisional Court,
could have been avoided.
Regardless of the legal outcome of 3uibrycki,
there is a compelling reluctance on the part of many
learned arbitrators both in the private and public
sector to act as a surrogate Selection Board for
management.
The case o"f H. k'ojfman et crZ, G.S.B. 22/79
(unanimous) comes immediately to my mind as supporting
this understandable modesty, and much of the circumstances
are similar to the case before us.
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,’ .
Careful reading of the whole award, its outcome
and the reasons why that Board refrained from making the
judgment as to who should be the successful candidate,
makes my logic and position clear.
Page 9 of that award in my submission is.
particularly appropriate to our condition as a Board
and is quoted in part as follows:
Because we do not have adequate injorma-
tion to make our own judgment as to who
shouZd be the successful candkdate,
having only a part of the information
which was before the Seiection Board, which
information we have held to be insufficient, I we are not prepared to make the., judgment.
We therefore allow the grievance and remit
the matter back to the kfinistry to reopen
the competition and reconsider any of the
eight persons who were interviewed in 1978
who wish to be reconsidered.
We do not wish to remain seized of the
matter, having fuZZ confidence that the
Ministry has the ability and judgment to,
properly chose the appropriate person.
Nothing can be served by being~manifestly
critical of the lack of professional skills used by the
Ministerial Selection Board so carefully illustrated in
the Majority Award, and yet being presumptuous enough as
arbitrators to act as a surrogate Selection Board with
even less information than that available to the Manage-
ment Selection Team.
This 'paucity of information' is referred to
on Page 12 of the Majority Award as follows:
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We are of the opinion that seniority .~,
should have been the deciding factor
because of the paucity of the informa-
tion before the Selection Board to make
objective assessments on each candidate's
relative abiZity to perform the job in
question.
Recognition ,that this Board had similarly inadequate
information before it to make a judgment as to who
should be the successful candidate seems to have escaped ~...$p
the attention of my colleagues, or was in practice,
ignored in the process of final determination.
My experience dictates that there are few
situations more artificial than a few hours spent in an
Arbitration Court on which to formulate such an uncom-
promising and somewhat empirical end result as that
posed by the Majority Award in this case. This must
be a particularly relevant consideration when only one
side provides evidence at the hearing.
There is another product of this Majority Award
which deserves mention. When an Arbitration .Board inter-
poses itself in a decisive role in the job selection
process, the.Management Selection Team cannot assume
with honesty its natural responsibility for the training
and success on the job of the human results of the choice
mechanism. A Board of Arbitration divorced from the work
place, and almost inevitably distinguished from, the active
participants by the way of life of its members, simply
cannot shoulder responsibility for the aftermath of its
decisions in this particular ty,e of situation.
In summary, this Board could have and should
have- followed the reasoning and result of,.the Siddiqui
award 128/81 as set out earlier in this dissenting
opinion and, in addition, on a.restricted competition
basis. This would have brought the minority member in
step where the executive result was concerned with the
undoubted value of much of the back-up facts and prepara-
tory conclusions and logic of the Majority Award.
D. B. Middleton-Member
/lb