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HomeMy WebLinkAbout1984-0431.Spence and Siddiqi.85-11-25Before THE CROWN EMPLOYEES'COLLECT IVE BARGA ,INING ACT THE GRIEVANCE SETS 'LEMENT BOARD Between: OPSEU (W. Spence, And TE‘EPI*ONE: rrs/soa-me 431184 432184 IN THE MATTER OF AN ARBITRATION Under M. Siddiqi) (Grievors) The~Crown in Right of Ontario (Ministry of Government Services) ('Employer) Before: M. R. Gorsky H. Simon ;;;;;;hairman B. Lanigan Member For the Grievor: ;bu;;;;antyne Caval.l~u~zro, Hayes & Lenn,on For the Employer: P. D. Van Horne Manager, Staff Relations Personnel Services Brar.ch Ministry of Government Services kearincs March 25, 1985 June 20, 1585 s .I . . DECISION The grievances, in this case, are identical: "That the Ministry of Government Services has contravened Article 4.3 of the Collective Agreement by filling a vacancy for a Purchasing Officer 3, Ccmoetition GS #24/84, with an applicant who is less qualified and able to perform the duties of the job than myself." ..~ The settlement required is also the same in both cases: "That I be confirmed in the above position as of March 20, 1984 with full retroactive pay and benefits." . . The Notice of Competition (Exhibit 4) was posted in February of 1984, with a closing date of:February 17, 1984 and is as follows: V.ephd by the Purchasing Sentices Branch,CollectiveFurchasing~Services to rccnitcr d rmew exiS’~bq Collective Purchasirq Arr~qexmtr; a-d pvide ass&,t- ante to the Senior SU&Y Officer in the develolznent of new A,rrang~~ for clothing, textiles and,related po;lucts/s&ces. You will: review and analyze +rchase activity rcprts; .~ conduct paricdic rev&m of product/service rquirerrcnt_+ .of.clier.t ministries; rcviw an3 revise spscificatiam and tender dan.m&ation to reflect nw dcvelopmnts; atteri-3 tender ~pairqs, prepare spread sheets, covzative analysis andSLmlT&.es of quotations/tenders receive; prepare contract &ZCCWI~S aikd arramje for their distribution. You will assist the Senior Supply officer in: es+&lishing cuzent and titUre.czmrcdi~kr.&e requirerents of .- client ministries; determining the feasibility of establishing Collective Pcrc!asing Arrangen-ents i and assisting at meetings to resolve special user or sunlier problem. . 2 Eileen Tobin, was the successful applicant and was awarded the position. There were six persons interviewed for the position, including the Grievors and the incumbent, Ms. Tobin. Ms. Tobin obtained the hichest score from the Dane1 administering the compet- .- ition, followed by Mr. Spence and Mr. Siddigi. The remaining unsuccessful candidates did not grieve. The incumbent,Ms. Tobin, was given notice of this hearing and of her right to be represented and to participate in the hearing, and she did personally attend and participate in the hearing. For the purposes of this hearing,,and without,prejudice to any position either side might wish to take in future proceedings; the parties accepted that the standard of review in this,competition case would be that as outlined by the Grievance Settlement Board in the Caston and Therrien 142/80 140/80 and Robinson 522/80 cases. At pps.Z-3 of the Union's submissions it was stated: In Castors and Therrien, the board stated as follows: "The board will have to review ally of the evidence of the respective attributes Of the competing employees as they relate to the qualities designated~ in the collective agreement eg. skill.and ability. If the board concludes that management has, in arriving at its decision, relied on all evidence which is relevant to conducting such an assessment and has not been influenced by irrelevant consFderations;,that will not end the matter: This is %cacse :he unreasonableness of the decision can cast licht on whether management was condxt& its assessnent b0,r.a frees. . . YIhere the decision is, in the opinion of the board, not one that an arbitrator could reasonably have arrived at on an assessment of the evidence, it would be necessary for the board to conclude that the decision of management was not arrived at bona fide and on a complete considerationof all of the relevant evidence." 3 This approach was adopted by the same chairman in the more recent Robinson decision (522/80), where the board stated: (at page 3) “As, in my view, a correct interpretation of that case is fu,nda..ental to a disposition of this grievance, I will repeat what I said in the case of Re Therrien and Caston (nos. 142-80 and 140-67, respectively), where I concluded that the A & P case does not impart a~standard..Sifrrectness or one of reasonableness, but rather a test requiring that management has conducted itself in good faith in admin- : istering the clause in question, that its decision was a reasonable one and that its decision was complete in the sense that it acted on all of the evidence relevant to the case and was not affected by irrelevant considerations." In the Employer's written kbmissions, in referring ~to the standard of review followed in the Caston and Therrien and '%. Robinson cases,it was stated at pp.l-2 ",+he employer underscads this srandard of reviev to be that outlined by Professor Ueiler at p. 125 in the A.C. Housing case at page 3. “In the face of these tvo extreme positions, arbitrators developed a third, igternediate position betveen these tvo poles. Under this viev , the sole of an arbitration board was co ensure that: c!le coc>arly’s dec;sion ZRJSi be no:-dlsc7i~inetory, arrd subject to the terns of the conc~act (including the se~,iori:)‘ cla!d:se) i2 NO senses: first, tie judgerren: of :h% C3t,a"V 2"s. be honest, and unbiased, and no: ac:ua:ed 5~ anv rr.a?i:e , the managerial decision must be reasonable: one vhich s reason- able employer could have reached in the light of the facts available. The unde:lying purpose of :his interpretation is to’prevenc the arbicrarlon board caking over the functior. of oanagexent a position vhich it is said they ate manifestly incapable of filling. Yet the managerial discretion to decide has been lim’- ,.ed by the terms of the agreement and it &s the duty of the arbitration board co ensure that it Ls exercised in rhe light of proper priticiples and criteria, that all relevant considerations have been adverted to, and that all irrelevant facts have been excluded from the process of decision. Re U.E.W., Local 523 and Union Carbide Canada Ltd. (19671, 18 L.A.C. 109 (Weiler) at pp.117-8. Governed by this principle of arbitral restraint, arbitrators have perceived their role in reviewing management’s decisions on a* employees’ qualifications as involving tvo enquiries. Initially, the arbitrator.m-.st determine the requirements of the job. and then against those requirements, assess the reasonableness s:andards or criteria used by the employer. Having made that de:erminatioa, the arbitrator must then .examine .the manner in vhich the .employer applied those standards to th; various applicants for the job vacancy. (See generally, Brown and Bcatcy, Canadian Labcur Arbitration (19771, at pp. 253-60.) “.In Castor, and Therrien, the.Board describes this standard of reviev in the following manner at page 4. “An examination of this statement discloses chat there are three elements ,in the.;Company’s decision vhich a board ~st reviev. The first, is the requirement that ranagement’s judgenest be exercised in a bona fide manner. AS vi11 be noted infix, the Divisional Court in the s case did not disagrer oi:h suck a standard. The second test concerns the reasonableress of the decision. As vi11 also be seen from an examination of the A&p - case, this is also a requirement of the review by the board. The zdditional require~enc of conpleteness, in the sense that the ac:ion of c:ar.epexz: be carried auf in accordance ‘.‘l:h “?roper ?rincl?les and criteria” and “:iTa: .%I! re1evan: considera:ior.s have been zver:ed :0, and cha: al? irre,levant iacrs have been ex:iud,e< from :he ;~rocess of decision.” (See S.C. H0csir.n case a: p. IZS,! re>resez:s a :iLri fac:or in the rev~ev - one :ha: i v!ev as slso:,belxS prr: of :he ;: >r?;ch landaced by c:,e Civ.zi0r.a: Coir~c, I?. :kle Ah7 cast. ” 4 ii 5 At p.4 of the'Union's brief, the standard of review was -stated to be: "In other words, the issue is not so much whether the decision of the selection panel is wroncj; but whether the panel can be said to have behaved reasonably, in all the circum- stances. " The Employer, in its brief, at p.2, viewed the issue before the Boa.r%'& being: “Not as the union submits*, that is: "whether the~panel can be said to have behaved reasonably, in all the circumstances but rather whether the employer contravened Article 4.3 of the collective agreement as stated in the grievances of Mr. Siddiqi and Mr. Spence." Further,at p.2 of the Employer's brief,the question of whether the Employer contravened Article 4.3 is viewed as requiring a three fold test: "The,first is the requirement that management's judgment be exercised.in a bona fide mdnner. -- The second element is the requirement of completeness as described above in Caston and Therrien at p.4. The third element concerns the reasonableness of . -.. the decision." At p.3 of the Employer's brief, it is stated: "In Caston and Therrien the Board at p.4 described the element of completeness, in the sense that the action of management be carried out in accordance with 'proper principles and criteria' 'that all relevant considerations have been adverted to and that all irrelevaht facts have been excluded from the process of.decisicn' see B.C. Housing case at p.125." I find that the standard of arbitral review as described in the Izployer s brief 2s th2t which wzs e?.unciated ir, the tz.stcr. an? Therrien and Robinson cases and that the Union's izter;r2ta:lz:. of those cases is incorrect. In the Em?io.ver's brief _ f ; 5: .P, 5 . . i' 2 t >, 2 :, :T.j): 6 1, . . . the judgment of the Company must be honest, and unbiased and not actuated by any malice or ill-will directed at a particular employee, and second the managerial decision must be reasonable, one which a reasonable employer could have reached in the light of the facts available . ..." the reference being to Union Carbine Canada Ltd.(1967),18 L.A.C. 10~: (Keiler~) at p.118. Thus, the reasonableness required‘according to ~~ the standards set out in the Caston and Therrien and Robinson cases, is the reasonableness'of the decision in the light of the facts av5.i: able, the Employer being required to act'only on relevant evidence land to avoid being influenced by irrelevant evidence. At p.4 of the L'nion brief, two separate grounds are stated for setting aside the decision of the selection panel, the first one being: "(1) First of all, it is our position that although the panel conducted the interview process in a reasonable manner (by which I mean that the content of the ~questions put,to the ~.--, candidates, and the conduct of the panel during the interyiew, were reasonable), it acted unreasonably when it came to the next and crucial step - the evaluation of the candidates' experience. The panel failed to seek a comparison by a know- ledgeable supervisor, Mrs. June Shoup, of the grievor Mr. Siddiqi and the incumbent Ilrs. Tobin. At the hearing, we heard Mrs. Shoup say that Mr. Siddiqi was, in her opinion, :> ,., .~. _,~,'. _, better than Mrs. Tobin. She evaluated Mrs. Tobin as "satisfactory". but would (in the absence of restrictions imposed by her super- “In our submissicn; the fail-re 05 the ?anel to elixir 7 What the Union must be seen to have argued, having accepted, for the purposes of this case, the standard of review above referred to, is a failure on the part of the Employer to seek out certain evide:::.e which, it was claimed, was -highly relevant in the decision making process. That is, the Employer,in failing to seek-a comparison by a knowledgablc Supervisor, Mrs. June Shoe?, of the Grievor,tir. Siddiqi and the incumbent Mrs." Tobin, failed in the completeness test. -It was the position of the Employer, at p.5 of its brief, that.the selection panel had "followed the direction of the Grievenice Settlement Board as outlined in MacLellan and Degrandis 506/81, 507/81, 690/81 and 691/8l,wherein the jurisprudence is summarized at pp.25 and 26. The quotation from that case is set Out at p.5 of the Employer's brief at pp.5 and 6: "The juriiprudence of this Board has established various criteria bg which .CO judge e selection ptocett~ 1. Candidates must be evaluated on all the relevant quslif~- i,~_ cations for the job =S set out in the Position Specification. 2. The va.rious methods used CO assess the candidates should address these relevant qualifi,cc$ons insofar as is possible. For exanple, interview questions an’d evaluation form should cover all the qualifications. 3. Irrelevant factors should not be.considered. 4. All :he members of a selection copmirtet should reviev the personnel files of all the applicants. 5. The applicants' supervisors should be asked for their evaluations of the applicants. 6. Information should be accumulated in a syste~~agic way concexing al ? the applicants. See nezari 149177; u, O/78; Hoffmn , 1217s; F?lS~C~~h e: al, -’ 361100; and cross, 339101. I’ 6 The Employer noted at, p.6 of its brief: "The union has not challenged the completeness of the process used by the employer. The fact that the panel asked the supervisor of each individual applicant for an evaluation is not in dispute." The Bmployer,further in its brief at p.6: . . . acknowledged the evaluation provided by a candidate's supervisor constitutes significant relevant evidence concerning a person's qualifications and ability. However the union would have the panel go far beyond the practice of the employer and the position adopted by the Grievance Settlement Board. The union would require the supervisors to.make a determination about the relative ability and qualif- ications of other candidates. With respect this is the task of the panel and not of the candidate's supervisor." In responding to the Union's submission that the additicnal information (relative ranking) obtained from Mrs. Shoup- would be relevant to the panel',s consideration, the Employer argued at p.6 of its brief: "The employer disputes this assertion and draws the Board's attention to facts which were established. in evidence. Mrs. Shoup was not the current supervisor of Mrs. Tobin, she had not supervised her work'since 1980 or approximately 5 years. Mrs. Shoup had only supervised Mrs. Tobin for approximately 0 months at the earlier stages of Mrs. Tobin's career." I would find that evidence concerning Mrs. Shoup's eval- u~ations of Mrs. Tobin and Mr. Siddiqi would.represent relevant evidence for consideration by the selection ~panel. Nevertheless, the evidence disclosed that Mrs. Shoupwas not the current supervisor of ?lrs. Tobin at the'time of the competition, and had not supervised her work-'sitice 1980, some five year's ago, and the supervision 9 must ask a supervisor, whose supervision occurred some five year's ago and who had evaluated Mr. Siddiqi and Mrs. Tobin as being sat- isfactory, to rank them or to compare them. Mrs. Shoup's concerns of some five year's ago do not appear to'have manifested themselves in Mrs. Tobin's work performance during the later stages of her employment. The Employer argued at p.8 of its brief that: The criteria established by :he aoard in nsclellan and Degrandls a: pages 25 and 26, by vhich to judge a selection process contain fiye other extensive tests vhich the erployer must meet.. It should be nored tha: all fes:s have been met and the completeness of the process employed by the panel is not in dispute. The union is seeking.to add yet another criterion by which the panel’s efforts can be judged and suggesting that failure to neet this additional criterion constitutes P fatal flav. Lc has been retbgnized by the Board in numerous avards such as Cross 339/81 (Jcliffe) that ev+ry selection process vi11 contain some flaw. The question becomes, is the flav so tignificrdi that the decision of the panel must be overturned?' I cannot regard the failure on the part of the Employer to place before the selection panel a ranking of the' candidates Yx. Siddiqi and Mrs. Tobin which is some five years old and which relates to an early period of Mrs.. Tohin's em?nlovment as significant. I a0 not regard Mr. Alex Marshall, who was a member of the Interview Panel, as having indicated that that evidence would have a significant im?a 02 him. Pather, he indicated that he would have considered that ei" derce - . . I find the evidence to have s,xk. limited weight tF,at, :f 10 I have reviewed my notes with respect to Mr. Marshall's cross-examination,when he was asked whether he would be influenced b!, knowledge that Mrs. Shoup would have considered Mr. Siddigi as being above average while considering Mrs. Tobin to be merely average. Yr. Marshall answered that,in looking at all of the information concerning the Grievors and.the Incumbent, the reference checks disclosedthat they were all thought of as being "very satisfactory".. ?; Se stated that the totality o f the evidence left the panel with the conclusion that the Grievors and the incumbent were "very satisfacto!\:: Later he stated that such information would not make a difference and that he was satisfied that he had made the right decision. In stating that he would "probably reconsider his decision", viewing this evidence in the context of his other evidence, I find that he would have reconsidered his ~decision in the light of this additional evidence but, given the totality of the evidence, it would not have caused him to change his.mind. I find it significant that Mr. Marshall testified that in evaluating the.applicants the totality of their exlaerience was considered. In the case of Mrs. Tobin, it was not only her recent experience, but her experience over a seven year period I find even more significant Mr. Marshall's evidence that the interview process was a most important factor in arriving at the choice of the successful candidate because it was intended to object- ively test how the experience of the candidates suited them for the oosition. The significance of the interview questions will be deait with iater in this kward. 7k.c altC-,.GL-.L S"3,1SSlCT. CT -->-:..-i -+;-, 5 'Jy.io-J {.;tC ! 3 - _ \__ 2.2, :'I : J.!. I must view this alternative submission as representing a claim that even though this Board might find that the panel passed the completeness test, as above set out, its decision was not one that a Board acting on such evidence, could reasonably have arrived at. This is shown from the statement in the Union's brief .at 2.9: "It is our position that the decision in this case is not one which a reasonable panel could have arrived at on a fair assessment of the evidence." In considering the element of reasonableness, the 3ployer argued at pp.4-3 of its brief: w Tnht Scope of Arbitral Reviev as described in Brevn and Beatty 2d at page 298 refers to :&a element of reasonableness in this .. ~_,-~ nanner . "It has been generally accepted tha: the standard of arbitral review of any managerial decision~vhlch includes an assessment of the abillties,~.pf various employees is less rigorous than in the case of disciplinary decisions effecred by the employer. . On this undersranding, it has been said that unless there is evidence of dtscriminatfon, bad faith, (as for example, bias in 1 selec:ion commi:kse) or the employer exercised fts judgenenc unreasonably, arbitrarors should be loath to fncerfere with ., managemeac’s decision. In the usual case, and partfcularly vhen the jobinissue is a skilled and technical one,the fssue is not vieved as vhether the grievcr in fact possesses the requisite skill ~I and abili:y but rather vhether the employer’s decision as CO those ma:ters is reasonable in the circumsfances. From the earliest wards ic was said that the primary function o- c the arbirral reviev in these circumstances is to ensure chat: . ..ihe judgemerit of the company mu;C be hones:, and unbiased, and not actuated by any malice or ill vi11 directed at the particular enplcyee, and second the manage.. -‘al decision rust be reasonable, oT.e r-hich a reasonable eaployer could bzve reached in the ?Lgit 0: r!le facts available. The underl?:ng ?cr;l‘se of cr.;* inter- pIecation is to preven: the arbi:ra:Con boar6 taii~g over the funct<oc cf ranagme::, a posi:lon v’:,ici i: Is said :!ley are ~;:ifes:lr incapable of filling. .;-iep, c.;rb<+r CarJ?> :.i.. !:o’.‘) it, : ~2 r :-c.:‘;“:.:py! PI- r.:.: 12 It was acknowledged by the Union, in its Reply at p.5, that: "Having alleged a violation of Article 4.03 of the collective agreement, the onus is on the union to make out its case. This has never been in dispute. Our point was that because both grievors have greater seniority, Mrs. Tobin's abilities and qualifications must be found to be superior to theirs if she is to be confirmed in the .position." It is also significant,in this case,that the Union did not chalienge the standards relied upon by the Employer. NC?C was it suggested that the interview panel's decision was not made honestly, in good faith and without bias, malice, ill-will or discrimination against any of the candidates. As is noted in the Employer's brief (at p.3): "No evidence was adduced which woulti suggest that the Union intends.to use this element as a foundation for their position." An examination of the evidence discloses that the vacant position of Supply Officer, Clothing and,Textiles, was atypically classified as a Purchasing Officer III. Mr. John Casey, an employee of the Ministry of Government Services since 1973 and now the Manager of Government Stationery Services in the P'urchasing Services Branch and Mr. Marshall the Manager of the Collective Purchasing Service Section 05 the Ministry of Government Services testified on behalf of the Employer. Mr. Casey described the '.'aca?~ position as involving negotiating with client Ministeries and 13 ified requirements, filling orders on an as required basis. He contrasted the posted position with the typical Purchasing Office: / pcsition and stated that the posted position-of Supply Officer, Clothing and Textiles,, required negotiating skills, good communi- cation ability, interpersonal skills and the ability to visualize problems. These criteria can-be seen to be reflected in the qualifications required by the posted competition notice. The qualifications listed on the notice of competition (Exhibit 4)'are: "Several years related purchasing and supply experience". Z-3 . Siddiqi has four years of direct supply experience, gained while working as a Supply Consolidation Analyst and seven years of direct purchasing experience; gained while working as senior Purchasing Officer. The Employer,,at p.11 of its brief, acknowledged that Mr. Siddiqi met the qualification requirement of several years purchasin and supply experience,. His experience was said to be in the office equipment product line and it was claimed that he did not have experience in the area of clothing and textiles. However, during the hearing, there was an agreement between counsel that clothing and textile experience would not be considered to be a significant factor. It is therefore inappropriate. for the Employer to now comment upon Mr. Sid~diqi's apparent lack of experience in this area. (see p.6 Union reply). The ?rinci?al ar,-u~ent made by t5.e E>?loyer s:a* that, ..: while Xr. Siddiqi had a number of years cf experience,he contln- + 2 14 It was also the Tosition of the, Employer that he had not taken any courses related to the position applied for since 157E.. In the Union's rep.iy (p. 6) , this was stated to be "not, strictly speaking, correct.~"-Mr. Siddiqi was asked;on cross-examin- a:ion,when he had taken the many courses referred to on his rescme. Xot surprisingly,he could not remember the'exact dates. He was able to say that at least one or two o f them were taken 'in 1975 and 1976. h'e was not asked tom put dates on all of the courses he had taken. Sidd4 ..+ 's demeanor during his examination was such that I concluded that the Employer's position was more likely correct and that there was no evidence to support .Mr. Siddiqi's having'taken courses related to the position since 1978. ..7 .Mr . Siddiqi's position was that he.had a Commerce degree from Karachi University, Karechi, Pakistan. There was some dispute as to the accuracy of.Mr, Siddiqi's formal educational qualifications before this~Board. For the reasons to be given, I do not find this issue to be or to have been a significant one in the making of the decision appointing Mrs. Tobin. Mr. Spence has twelve years of experience (1968-1980) -working in supply management, and four years of experience workins as a Sourcing Analyst in ?urchasing. The evidence discloses that he left high school without completin'g 'grade 12. he now considers that he has the equivalent of a grade 12 diploma, which evidence was not challenged by the Employer. ?lr. Qence, ..- ,..like .\:r. S,itidiqi, b.as t2 ker. n~~~ersus zecezi c3c:rses relati-c tf. the ;rurchasing function. There ~ws.5 nc e:.:cence , however, ;neic2,:;.: >-,lt >,e kad recel-:e;t the cor.tifi-,?ti3> a.:ci?able - a- the ccr,~ls:lcF. 15 1, the very important reason that he was not's purchasina officer and was not. working in the field. I&. Spence at all material d- times was a sourcing analyst not a purchasing officer. The most senior level attained as a sourcing analyst was the classification of Clerk 5 General in June of 1977'or~ approximately eight vears ago. This classification level as shown in Exhibit 24 and 25 is approximately the pay level of a Purchasing Officer 1." The Union submitted that: "Mr. Spence was seconded to a Purchasing Officer position in December, 1981, and remained in that position until August 1982. Exhibit 22 indicates that the secondment took effect on December 1, 1981 and Mr.~ Spence was to assume Mrs. Tobin's purchasing duties." In the Employer brief at p.12, .it is stated: "This document and the evidence put before the Board suggest that Mr. Spence was considered junior to Mrs. Tobin in terms of purchasing experience.". I accept the submission of the Employer, that this was the case, in the absence of any response to displace the normal conclusion . that the facts would dictate. Much was made of the question of which of the candidates was better educated. The class definition of Purchasing Officer III (Bxhibit 14) indicates in "qualifications" that: "The successful completion of grade 10 secondary school education is the formal education requirement." In Zxhibit 11, being a letter to Mr. Siddiqi, dated May 23, 1984, from John A. Jackson, Executive Director, Corporate Services, it 16 I am satisfied that the difference in formal education of the Grievorr and IMrs. Tobin (university, high school) did not play a Significant role in the competition. Mrs. Tobin has been with the Ministry of Government Services since Narch 1, 1978. Prior to joining the Ministry, she was employed as a Department Bead working with buyers of comtimoditics at Eudson Bay. 'in this position she supervised staff, took inventor; maintained stock and had a great deal of client contact. Shea com!!enced employment with the Employer, in the Supply Adminis- tration Branch and has been~ employed in a variety of positions, all within the purchasing function. On February 4, 1980, Mrs. Tobin successfully competed for the position of Purchasing Officer I in the Supply Administra- tier. Branch. Her evidence went in& her extensive experience involving purchasing duties. As noted above, in December of 1981, she was seconded to the Executive Director's office, where she gained considerable managerial experience and a corporate perspective in government purchas.ing. From September 1982 until January 1983, she worked in Collective Purchasing assisting Senior Supply Officers In January of .1963, she was seconded as a Purchasing Officer II to Government Stationery SerCices, where s.he gained additional experi- ence relating to the position applied for. Subsequently, the. Executive Director of the Division, Mr. Kelly, requested her . . assistance in a project concerning Corporate Government Purchasing Practices and Policies, wh-ich he 'n‘as in;rcl:-ed in at the Ci;Til Service Ccz7isslon. As noted above, ~alti-.o-qh the Emploqer arc-cl th2.t she ?.a13 s,cperior educational L~ack,-rocr.ti to :lr. Siddiqi ;I :,I:-. 2, I crlnz3t find tha< any 51~~czsez fiffereqce in f,;r~,;1 i.l;r;.:.:~ .;..:.::;l:-r::i;r.s !!:ilh szi13c: ,;;3 1 ','7-1 :-; 1 t.,. / ,:z; t,>::,rty:: iL:., t; cc :', :::. ,:__~.I 2 :1 17 by the Interview Board. Mrs. Tobin is a graduate of Ontario grade 13 and has completed some courses at the University of Toronto tow-.r a B.A. She has also completed principal buying courses at Ryerson, nine of twelve seminars sponsored by the Purchasing Management Association and Purchasing 1 and 2 courses presented by the Civil Service Commission. Both Mr. Casey and Mr. Marshall described Mrs. Tobin's work performance as above average, methodical, efficient and indic-~ ated that they were more than satisfied with her work. From the evidence of Mr. Marshall,which I accept, the interview conducted by the Interview Panel was the determining factor in the decision to award the position to Mrs. Tobin. it has already been noted that with the exception of the evidence of Mrs. Shoup, above referred to, which was not before the Interview Panel, the Union did not challenge the validity of the test as being a genuine measure of suitability for the posted position. No issue was taken with the questions asked or in the way the test was con- ducted. There was no suggestion of bad faith on the part of the .Employer. The test questions, which are found in Exhibit 8. are, att-~ ache.d to this Award. With the exception of questionl.1, all of =he other questions require an objective answer. The first series of questions (1.1 to 1:4) deal with "experience in purchasing and supPL ar.3' ha;ie a maximum value of 20 points. The first question (1.1) is: 18 The members of the Interview Dane1 are cautioned to "probe any experience re clothing or textiles." The answer,' being a "persona:: response" can yield up to eight points. Mr. Siddiqi and Mrs. Tobin were awarded six of eight points and Mr. Spence was awarded five ooic'ts. The total scores to the first series of questions was: t:?c, Incumbent fifteen points, Mr. Siddiqi thirteen points and Mr. Spentc: thirteen and one half points. The second series of questions (2.1-2.5), was worth a maximum of twenty points and ??r. Siddici was awarded sixteen and OX half Faints, the Incumbent fifteen and one half points and Mr. Spen~c thirteen po&nts. The third series of questions dealt with, "ability to analyse, supply information, making judgments and recommendations from the .analysis." This series of questions was worth a maximum of thirty points and the Incumbent was awarded twenty-one points, Mr. Siddiqi fourteen and one half points and Hr. Spence thirteen and one half points. The final series of questions (4.1-4.4) were worth a .~ ~~. maximum 0 f thirty points, dealt with, "personal suitability - proven communication skills - ability to deal with clients and suppliers (service concept). The Incumbent was awarded twenty-one points, Mr. Spence twenty points and Mr. Siddiqi fifteen points. The total points awarded for all questions were 12.5 ijoints to the Incumbent. 60 points to Mr. Spence and 59 points to Mr. Siddiqi. There was no suggestion that .the answers to the questior.s 'nere 17.aespro~riate. The significant diz- eFerence betwee?. tb:.E: Ir.c'L?.ZEr. a n d t .5 e Crie-ors was in the tt-.:rd. series of questions dealLr,c ,dltk. _i. .-. iliA-- -I' "73 22zl;.se supply LT-.fTr2!tl,27j, :!a:k.i.gq :u-'cxnts z7.' r+::: y ,.~. 3 : y. 7 1 9 n s f r-.r: c_Y?e a.nal >.E ; ;. " ". 2 _ 1 c 1 s plea.;.: _ 2 si.:::.: r :yi.:. 19 aspect of the posted position. viewed in its entirety, the :ncumbc;-:c was superior to the Grievors in three of the four categories and was marginally inferior to Mr. Siddiqi in the second series of questions. In the third series of questions, the Incumbent was markedly superior to both Grievors and in the fourth series she was clearly superior to Mr. SCddiqi. The total scores disclose a clear difference between the candidates. I believe that the evidence of Mr. Marshall accurately reflects the finding cf the interview Panel, that while the Grievors and the Incumbent, were all satisfactory candidates for the position, the test was admin- istered for the purpose of evaluating their relative suitability for the position. The test results disclose that Mrs. Tobin dis- played a clearly superior aptitude for meeting the demands of the position. There was some suggestion that Mrs. Tobirr's secondments had improperly furnished her with experience which would reflect unfavourably on the Grievors.~ Question 1.1, which deals 'specifically with the candidates past experience resulted in the Grievors and the Incumbent being scored almost equally and the nature of the test was much more concerned with how much tine candidates had learned Trepared them for the responsibilities of the posted position. i find that the Interview panel concluded that on the basis of pal)er, qualificationsthe Grievors and Mrs. Tobin were relatively equal.Thz: of course, did not end the matter, for that is the reason for the izter;,iew test: to establish hew the experience sf the canlidates is refiecteti i.3 t;neir cnderstandi.7~ si the reccire~ents rf the Tczz.:-~ ?csition. I,-. t;Te WC;;:?, 1 fir.2 :hht ,z.\,f,q If ':yE. 5r..-.-p'5 s...l.;c~.-,~~. :~ -.-. r ^ _. _-._ ..,, tr ,, -,:ey,y+ 7:-. 7::; YL: ,:;,.‘.~, .- ..,Y~ .,y:. ?T'... . L . .~ .-: : s .' 20 o: the position was relevant, its cogency was so liiriited as tc ha.:r no s;gnificant affect on the test of completeness. Com?etitioez are not an exercise in perfection and while this Board would not be sanguine should there be a significant breach in the reqcirements of completeness, this is not such a cake. It was acknowledced t:hat there was no imputation of bad faith nor was it soggested that the questions on'the test nor the way they were administered created an!' suqqestion that the test o f completeness was not meant. The zesuli-,s of the interview test establish a clear superiority in favour of the Incumbent and the response of the Interview Panel to all of the evidence before them was not an unreasonable one. The decision having been made in good faith on the relevant evidence relating to the issue, there being no evidence that the tiecision was arrived at relying upon irrelevant evidence, and the decision being not an :Jnreasonable one, the, grievance is denied. DA?9 AT London, Ontario this 25th day of November, 1985. . , M. R. Gorsky Vice-Chairman "I dissent without written reasons" H. Simon-s, Member ? 1.1. 1.2.(a) (b) 1.3. 1.4. EXEISIT 8 You have revrewed the position description - will you please highlight your past experience that relates to this position. (Probe any experience re clothing or textiles). Answer: Personal response. In tendering process what percentage is applied for Canadian Preference purpcses! Answer: YOU have 3 suppliers who quote a similar price of 51,000. Each one has a different Canadian content S value. Describe the method or process you would apply to adjust these quotes for competitive comparison purposes. Answer: - Take 10: of Cbnadian Content - Deduct results from,initidl quote - enter adjusted quote. If-you were asked to'develop: a product specification far review by the Senior Supply Officer, what are the steps you would consider in it's development? . Answer: - Establish with major users the needs to be satisfied. - f<ake reference to various sources for currently available specifications. \... - Contact potential suppliers for disc.ussion and/or submission of like specifications - Do comparitive analysis of available specs. - Refer needs to appropriate consuT:ant or association for specificatic: - draft dummy specification for Sr. Supply Officer review. I ~ha: manual or manuals would you reference for information on the purchasing policies and procedures d;f the Ontario Government? - ::anual o-: &m<nistrarion (Vol. 1) - ?2nual Cf~ SJPPly. .:‘. 2.1. 5. _ . . 2.2. 2.2. 2.4. 2.5. What fs the General message to the purchasing community of the current policy on "Price escalation of Government contracts"? Answer': Failure of private supplier to meet terms of their current contracts due to increased costs resulting from inflation should not result in contract renegotiations - - tendering for a new contract should be initiated. Would you please provide your definjtion of a collective purchasing arrangement? Answer : Any government purchasing agreement or formula by which agencies of the government are collectively, rather than individually, .' committed to the same source of supply so as to achieve economies of scale. : .- What are the generally recognized forms of a collective purchasing arrangement? Answer: Standing Offer, Standing Agreement.. Whatare the basic differences between a Standing Offer and Standing Agreement? Answer: Standing Offer - best price(s). a voluntary proposal from a'supplier outlining the terms atid'conditS,ons under which a commodity or service is available. May be used by ministries for competitive evaluation and supplier selection purposes. Standing Agreement - a contract arrived at through.the tendering process - awarded to lowest bidder on a given commodity or service - meets all requirements of the'competitive purchasing policy. Kanagement approves the establishment of a Collective Purchasing Agreement... you are assigned (under the supervision of the Senior Supply Officer) as the resource to continue wi.th the project.;0 the tsnderine stage... what further activities/information do you see as necessary in this development stage? Answer: ., -. - 7oentitication 0: - a current or establish9ent of 2 new re:e:,ant co-rnoditv com2n;rt5e; - de:erminat;on of oilantity requirements ever propcsed effecrive period of ccn:ract; -;: - develop, acquire, ;\ adopt specifications; - develop appropriate terms and conditions of supply; - confirm potential user commitments; - establish source list for tendering purposes; - have package' reviewed by appropriate individuals and groups for final approval purposes. FElLITY TOANALYZE SUPPLY !NiORMAi!Ch AND MAKE JUDGEMENTS AND RECOMMENDATiOt:; 3.1. An invitation tender has gone out to suppliers with a covering letter, terms and conditions of supply, product specifications and a Canadian Preference declaration form. The tender is received and opened in pubiic, however, you are requ,ired to prepare a spread sheet in order to evaluate the submissions for award purposes. Prior .to submitting your recommendations for award, what in your opinion, are the najor'factors to be considered in your evaiuation? Answer: - bidder is able to meet OCR has agreed to all stipulated terms and conditions; - bidder's product or service meets the specification requirements; - the.prices are accurately recorded and extended; .; - Canadian preference percentrage has. been applied to arrive at at a competitive comparative cost. 3.2. Having reviewed the tender submission you note (from previous experience with the supplier and/or knowledge of the commodity or ~. service) that an obvious error has been made in the submission of a particular supplier - e.g. price entry in wrong column, a math- ematical transposition, a typing error which affects the quotation, etc.. k/hat action would you take? Answer: Discuss the circumstances with the Senior Supply Officer for determination of action to be taken. It would be helpful tc offer possibie solutions to the probiem. . 3.3. With reference to the previous question, you note that a supp1ie.r has obviously forgotten to compelte the Canadian content form since -,revious submissions by the same s~:ji:er ior the szne ccx~o~it~ CzC shown a 75: Cavadirn content - what acticn wuid yolk take? Answer: I;0 act-on :a be taken - suimjssic?, ricj;c' >? eva:~ate? CD :z:is ;C n3 taga<iar fcntent as ex2reSs51 cn Ca;:<;a; :zn:en: le:lara:!27 'rr7. ,r?y: '/ ‘? .? 2.c. you are requested by the Senior Supply Officer to prepare a ,?s recommendation relative to a commodity or service which may have Collective Purchasing Arrangement potential T titIat activities and/or information do you feel would be appropriate to the preliminary resea#* ;-h and reccmendation? Answer: - established reasonable knowledge In relevant commodity field by contact with vendors, users, literature review, etc;. - determines '* .hrough volume/value analysis if project represents an effective resource utilization opportunity; - identifies the type of Collective Purchasing Arrangement appropriate to the commodity or service. c 3.2. A potential supplier contacts you regaridng cons'$deratidn of his/her product for eventual pruchase - what steps would you take in considerin! this request and validati$ the quality and performance claims of the suppljer? . Answer: - Establish that there is a requirement for the product - Establish if it is distress merchandise or a regularly available item. - Obtain samples of the prcduct - Obtain pertinent literature and/or specifications - Review quality against appropriate specifications - Consult available reports on product .~ - Use test i:;. - Taik to current users PUPSONAL SUiTA5ILITY 6.1. Verbal communication Answer: - review ability over intervtew e.g. clarity, conciseness, adequacy of response. . . ,, ,,: ’ ~1. 4.2. You receive a cal'i from client/user who is extremely upset over delivery prob?en - how wcuid you handle this situation? Answer: - ca!m,;he client down - obtain fu;l details of the circumstances - assure the client of imediate follow-up and early response rc-;r/m the cjrcumstances - ““/,/ through secondary source - discuss tiith supplier - written or verbal response to client (copy to supplj'er fjie) 1 - -..'. in the Coiiective Purchasing Program supp'i‘;ers ark rejuired to ~sub.7,ft statements of purchasing activity agajnst their Standing Offer or sta neing Agreement within a week of tiie month in which the purchases oc:urred - 2 nii reocrt is alS0 required. uow wculd YOU, and in what sequence, deal with a supplier who does not subzit this required statement? Answer: Call the supplier - identify the problem - seek and suggest alternative solutions Continued lack of response - letter " recommendation to Senior Supply Officer 4.4. you are asked to visit a client ministry'Purchasinq Officer to establish why they do not wish to become ,involved 1n a Collective Agreement purchasing arrangemen t even though they are high users of the product. .' Answer: ~ . L.5. YCZ are.asked to visit a.client ministry Purchasing Officer and try to convince them to become invoived in a coliective pur:i;asing arrangement for a product they are heavy users c: . 3escr<be the +::rsa:k aaC nethcis you wouid use in this meeting.