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Home My WebLink About1982-0555.Parent.83-06-21Between: 555182 556182 IN THE MATTER OF AN ARBITRATION Under THE CROWN EWLOYEES COLLECTIVE BARGAINING ACT Before' ,TIIE GRIEVANCE SETTLEMENT BOARD I~ OPSEU (Denise Parent) Grievor .- And - .The Crown in Right of Ontario (Mipistry of Copsumer and Commercial Relations) Employer . Before: For the Grievor: R.J. Roberts ' Vice Chairman R. Russell Member A.G. Stapleton Member R. Wells, Counsel Cameron, Brewip & Scott C. Reeve, (second day of hearing) Cameron, Brewin & Scott For the Employer: J.J. O'Shea Staff Relations Administrator Ministry of Consumer and Commercial Relations Hearings; March 31, 1983 May 9, $983 -2- A W A~ R D On April 2, 1982, this panel of the Board issued an Award, G.S.B. (McNamara), #272/81, in which we concluded that a selection procedure used by the Employer in a job competition for the position of "Abstract Index Clerk" at the Windsor La~nd Registry Office, was contrary to the collective agreement. We directed that a new selection procedure be instituted, stating: The matter is remitted to the Bmployer for the institution of a new selection procedure which avoids the procedural defects of the competition under review. . . . Further, the new competition must be limited tothe samecandidatesas participated in fhe original, i.e., the grievor [Mary E. McNamara], Pearl Palmer and Denise Mornau [now Parent]. . . . Id. at 11. - The grievance at hand grev out of the second competition / which the Employer conducted in response to the foregoing direction from the Board. The essence of the present grievance is that the Employer erred in concluding in this second competition that none of the candidates was qualified for the job. This was essentially the same basic conclusion as was reached in the first competition. It was the position of the grievor herein, Ms. Parent, that because she was the top candidate of the three, she should have been promoted to the Abstract Index Clerk position. -3- The employer elicited consider~abfe ~evidence tending to show that it expressly des~igned.thd competition at hand with our prevEous:Award inmfnd , sol as to avoid then procedural defects that.had been noted therein. For example, the committee that was set up to interview the candidat.es was aomposed of persons whoodid not have any prior experience with any of the ~capdidates whereas before,.the committee included at least one 'person who might have been biased against one of the candidates. E~ach member of the committee individually scored the responses of the candidates whereas before, no contemporaneous scoring took place. All of the intervietietis'reviewed~the personnel records of the. candidates prior to their.inter$eys, whereas before this did not happen. Moreovecf the questions which were asked were designed by Mr. Brian Thorne, the Deputy Director of the Real Property Registration Branch, Southwest Region, who testified that he participates in about 20 or 30 competitions per year at the Abstract Index Clerk level. Mr. Thor+ testified that the selection criteria he used were typical of those used in his region, In the previous competition, the ques~tions were designed locelly. They were criticized, as "taking into .account such'extrinsic~ matters as expediency in assessing relative ability and qualifications to do a particular job." G.S.B. NO. 272/U, at 9. -4- The foregoing evidence convinced us that the Employer had made a sincere effort to avoid the procedural defects which led us to conclude in our prior Award that a new competition had to be run. We were convinced that the revised selection procedure, though perhaps not perfect, was sound enough to oroduce a reasonably accurate assessment of the ~rela~tive abilities of the three candidates. Our finding in this regard, however, cannot lead to dismissal of this grievance. The grievor, after all, is the person who was determined in the competition to be the candidate who, relative to the others, was best qualified for the position. The grievor was not promoted into the position, however, because the Selection Committee, apparently apply/ng son&a absolute criterion of ability, decided that she did not have sufficient ability to be promotable to the Abstract Index Clerk position. This was an unusual occurrence, Xr. Thorne testified that he could "not remember ever having disqualified all of the candidates at this level before." In the scale of things, the Abstract Index Clerk job was not a high-level position. It was classified at the Clerk III General level. The grievor was part of the normal pool of applicants for such a position, i.e., a Counter Clerk, classified at the Clerk II General level. Was her performance in the competition so , - -5- dismal as to justify the ~panel in concluding that even she, as the top candidate, was unqualified for the j~ob? L The Employer attempted to convince us that this was. the proper conclusion by referring to the low score that the grgevor achieved in the 'course of the selection procedure. And indeed, her score was low. The best score given,her by a membe~r of the committee was 122 l/2 QUt Of 250. Mr. Thdrne :testified that a passing score would have been 125, ~representing 50%.. He .said, "Usually we want around 75%; but because of tiie nature of the previous competition and.thefeeling that existe,d regarding ~the questions previously asked, we wanted to give every opportunity to the 'crfndidates to qualify for the job. So .50% was deemed to be ~passing." Because the griever's .score fell below even this minimal passing level, the . Employer submitted! the Employer was right in re]ecting her for the position. We cannot accept this argument. The questions which. were asked of the grievor and the other candidates bore. some resemblance to the 'questions that might be asked on a Law: School examination, in the sense that (1) the degree of difficulty of the questions was. capable of varying from test to test and, (2) the ~responses to the questions were -6- capable of being scored either leniently or "hard", depending upon the examiner. These factors do not affect the validity Of the questions in determining relatives ability of candidates. All candidates are asked the same questions and are scored by the same examiners. However, such scores seem to us to be incapable of determiningabsolutelevelsofability. Because of theelementsof subjectivity in selection of questions and scoring, it would seem to be impossible at the end of the day to say that a person who received a score of 122 on a test in Windsor was unqualified while another person who received a score of 132 in Chatham was. There certainly was no evidence before US to indicate that the Employer possessed the capacity to make with certainty such fine distinctions. Moreover, on the evidence that waa placed before us at the hearing, we think that the grievor was qualified to do the job. We.think that the grievor had sufficient technical knowledge of the job of abstracting as to permit her adequately to perform her duties, subject only to some familiarization (but not training). On the evidence before us, it seemed that the grievor was capable of working with the requisite degree of accuracy atamore than acceptable pace. It seemed to us that the grievor's penmanship was at least adequate, and would improve to an even higher level in -?- a 's&t time. There seemed to be 'no question on the evidence that the,grievor had the,attributes~ of' co-operation essential to the 'job. Her attendance and punctuality were not called into ques~tion. Finally, the communication skills of the grjevor see~med to us to be more than adequate to the 'Abstract Index Clerk position. In the circumstances, we conclude that we are entitled to substitute our judgment for ,that of the selection committee. First, we have found that the selection procedure was adequate to determine the relative abilities of the candidates; Accord- ingly, , we are confide+ that the grievor was best qualified for then job., Secondly, ws have found that on the basis of the evidence at the hearing that the.grievor was qualified, in an absolute sense, to be promoted to the Abstract Index Clerk position7 Thirdly, a great deal of time has passed since the 'original competition iu this case. It would not serve the interests of either party to remit the matter to the Employer for furtherproceedings. Accordingly, the position should be awarded to the ~grievqr. The grievance is allowed. The grievor is entitled to be promoted to the position of Abstract Index Clerk. The effective date of this promition should have been the date upon which the ‘griever was notified that she had been rejected. We do not have precise information as to this -. . . -8- date; however, it appears that it would have been some time before September 22, 1982, the date upon which the grievor filed her grievance. The grievor is entitled to be compensated for wages and benefits that she did not receive by virtue of her rejection. We will retain jurisdiction of the matter pending implementation by the parties of the terms of this Award. DATED AT London, Ontario this 21s t day of June, 1963. R. Russell, Member A. Stapleton, Mea&r 6:3340 6:3330 5:2510 Vice-Chairman