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HomeMy WebLinkAbout1983-0250.Sedore.85-01-17.~. ‘5’ ,. .: ‘: : .i:. . . . ; :. .i . . ‘~..: ,’ 1 .: ,: ,s. .” :;.:.\ -. : .’ .:.. Ij ,j 250/83 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the ,Grievor: For the Employer: Hearings: OPSEU (Ronald J. Sedore) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer R. Delisle~ Vice Chairman L. Robbins Member G. Milley Member P. A. Sheppard Grievance Officer Ontario Public Service Employees Union G. Eden Staff Relations Officer Central Region Ministry of Transportation and Communications February 13, 1984 October 26, 1984 : DECISION The grievor~ complains that he has been unjustly denied promotion to the position of Maintenance Crew Foreman, Freeways Patrol #6, Gormley Yard. The grievance is based on Article 4.3 of the Collective Agreement which reads: 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. To succeed in his grievance: I'... the grievor bears the onus of proving not only that he has the requis~ite qualifications and ability for this job, but as well that he was relatively equal in those respects to (the incumbent)." Doherty, 43/76 (Beatty). Recognizing this onus we also note however that the employer is fixed with certain obligations by Article 4.3 and: . . . the employer must employ a process ,of decision-making designed to consider the relative qualifications and ability of the candidate in a competition which will ensure that sufficient relevant information is adduced before the decision-makers in order that they may make their comparisons in. then confidence that they are able to thoroughly and properly compare the qualifications and .abilities of the competing applicants." Quinn, 9/7S (Prichard). As stated by this Board earlier: II . . . in considering qualifications and abilities of job applicants, the employer must not act arbitrarily, discriminately or in bad faith. Nor should he'act unreasonably,. either in establishing requisite.qualifications for the job nor in applying~, them to the applicants." Remark, 149/77 (Swinton).~ The grievor has two arguments. First, he argues that he should be given the position outright as he is, by the evidence, 'relatively equal~to the successful applicant and has greater seniority. Second, he argues that the selectionprocess was so flawed that the -3- decision cannot stand and we should instruct the Ministry to conduct a new competition or simply Place the grievor in the position. The griever notes that in November, 1981 he had applied for a similar position and was rejected but that the letter informing him of the same (Exhibit 11) described'him as relatively equal to the successful applicant and that his rejection was due to lesser seniority. From this the grievor argues that the Ministry found him qualified for the position. In addition, the griever was granted a similar position in a different yard a few months after he wasunsuccessful in the instant competition. From this evidence we are to assume that the griever was qualified 'for the position before and after the competition and therefore qualified at the'requisite time. The short answer to the griever's first argument is obvious: to succeed the grievor must show not only that ~.he was qualified but also that he was relatively equal I' to the successful applicant. The real question before us then is whether the selection process was sufficiently flawed that we should order a new competition. In Cross, 339/81 (Jolliffe) this Board dismissed a similar grievance when it was established that the,ultimate selection was correct in any event. The Board there described the crucial question to be 11 . . . whether the rather inadequate methods of personnel selection in this case were such as to cause what might be called a miscarriage of justice." In Marek, 414/83 (Samuels) this Board ordered a new selection because they were persuaded by the grievor that he could very likely demonstrate relative equality if a proper selection procedure was undertaken. It is against that background that we now turn to examine the selection process under attack. - 4 - The grievor maintains that the process was defective in two .ways. First, the questions used by the interviewers were not designed to elicit the proper material. Second, the grievor faced a panel, two of whom had direct knowledge of the eventual'top-rated three applicants and the panel did not contact the griever's supervisor for advice concerning the griever's abilities in supervising others. The chairperson of the selection panel, Bertram Thompson, described the process. The position was advertised by posting (Exhibit 6). The advertisement listed the qualifications that a successful: applicant "must have" and those that he "should have". The "musts" and the "Shoulds'Vwere developed after examining the Position Specification (Exhibit 7). There were eight applications and on comparing the same with the ad the panel decided to interview six. Only the grievor failed to follow the instructions of the ad and submit an.Attachment Form which would respond in detail to the "musts" and "shoulds" listed in the ad. Nevertheless the panel'decided to interview him in any event even though an earlier memo had said that failure to attach such form might disqualify the application. The panel developed a list of questions to be posed to all applicants. The questions were grouped into three modules under the heads Leadership, Judgement, and Technical. The modules were weighted in light of the requirements as seen in the Job Advertisement and in the Position Specification: Leadership 7, Judgement 8 and Technical 10. There were four questions in the first module, three in the second and eight in the third, (Exhibit 13). There was some testimony by the griever and another unsuccessful applicant, Peruch, that on comparing memories after the interview different questions were posed to each. -5- We are satisfied that this was not the case as we see the notes taken by the interviewers together with their written lists, of questions as preferable to the known frailties of the human memory. We are satisfied that all applicants were asked all questions. After the interviews the panel compared notes'and made up summaries of the answers given. The answers of the grievor are summarized (Exhibit 18) and of the successful applicant (Exhibit 19). We are satisfied by Thompson's evidence and also by the grievor's testimony that the griever was provided.full opportunity to answer 'all the questions. The following day the panel compared the answers. They assigned a grade of 10 to the best answer and graded the others in relation to it: After weighting the answers and totalling,the grades ranged 228.38 (successful .applicant), 227.25, 164.5, 141.05, 125.5, and 91.4 (the gr:ievor). The grievor, who placed last, was outdistanced by the successful applicant' by a very large margins. The panel regarded .the top three applicants as worth pursuing and reviewed their files. The panel was familiar with the work habits of the top three. and therefore decided it was not necessary to contact their supervisors. Counsel for the grievor / suggested that the successful applicant was privileged since he had worked in the subject yard as an ~acting foreman; it is noteworthy however, to rebut suggestions of favoritism, that he was given that task after two others in the yard had turned it down. Counsel for the grievor suggested the successful applicant was privileged simply by working in the subject yard; the applicant with the second highest rating did not work there but similarly outstripped the griever's score. 'Counsel for the griever cross-examined Thompson regarding the appropriateness of the questions as relsting to the job advertised. . -6- Without going into all the deta~ils of the individual questions we cannot say that the great bulk of the questions are not directly related to the job. We recognize the wisdom that suggests the panel should consult personnel files and candidates supervisors, Marek, 414/83 (Samue~ls),but given the disparity in scoring on the interview we cannot say that the result could have been different if such had occurred in this case. The grievor has failed to persuade us that he was relatively equal to the successful applicant or that he might be able to persuade a new panel of the same.. Accordingly the grievance is dismissed. Dated at Kingston this 17th day of January, 1985. ,&+4-Q - ~‘-.-.A4 WDelisle, Vice Chairman mI concur" G. Milley "I concur" (addendum attached) L. Robbins IN THE MATTER OF AN ARBITRATION BETWEEN: MINISTRY OF TRANSPORTATION & COMMUNICATIONS .- and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION ANDY IN THE MATTER OF THE GRIEVANCE OF R.J. SEDORE [ #250/83] ' >A~ D DENgUM .' - - T - - - I have reviewed the Award of the Chairman in the above matter and am prepared to concur with the result based on the specific facts of this case. However, the process used has clearly'failed to meet ideal standards of fairness, notwithstanding repeated directions from various panels of the Grievance Settlement Board'on procedure to be.followed in such cases. Fairness in the se~lection procedure is obviously . . important to employee acceptance and trust in the procedure. The following excerpt from Marek 414/64 (Samuels) is most on point: "From the evidence at our hearing, it is clear that the decision to select the successful candidate was made on the basis of the application forms and the interviews, without any recourse to personnel files or candidates' supervisors. The successful candidate had been doing the job involved for three.years on a contract basis and was well known by the interviewers. Indeed, Mr. Clark testified that he had been told by his superiors that he could not consult personnel files, and it was his practice never to call candidates' supervisors. It is hard for this Board to understand how this could occur, . . . /2 in view of the repeated direction this Board has given on the need to consult personnel files and candidates' supervisors, particularly when one of the candidates only is known to the interviewers -- see, for example, MacLellan and DeGrandis, 506/81, SO?/Sl, 690181 and 691/81, wherein the jurisprudence is summarized at pages 25 and 26: The jurisprudence of this Board has established various criteria by which to judge a.selection process: 1. Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification. 2. The various methods used to assess the candidates should address these relevant qualifications insofar as is possible. Forexample, interview questions and evaluation forms should cover all the~qualifications. 3. Irrelevant factors should not be considered. 4. All the members of a selection committee should review the personnel files of all the applicants. 5. The applicants' supervisors should be asked for, their evaluations of the applicants. 6. Information sho,uld be accumulated in a systematic way concerning all the applicants. .See Remark, 149/77,; Quinn,.9/78; Hoffman, 22/79: Ellsworth et al, 361/80;and Gross/81." In this particular case, the selection panel knew three of the applicants well, that is the top-rated three applicants. Yet no attempt was made to contact the supervisors of the other applicants or even review their personnel files. Such an unequal access to information about the various applicants does seem to stack the deck. One of the members of the interview panel was actually a relative of one of the top-three rated applicants (although to be ..;/3 fair, that. applicant WAS not the one ultimately chosen.). Still it would be preferable if a member of,,an'interview panel excused himself in such a case. I am also concerned that the candidates were provided with too little information about'what~ was required in the job prior to being interviewed. For example, they were not even given, job specifications about the position. Finally, I am concerned . that too much stress was laid in the questioning process on minute technical details rather than questions of 'leadership. In my view, if the.directions from this Board were taken more seriously by interview panels,, there would likely be less resentment with the results in cases such as this. Respectfully submitted Union Nominee