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HomeMy WebLinkAbout1984-0514.Walker.85-02-19IN THE MATTER OF'AN RRUlTRATlON Under THE CROWN EMPLOYEES COLLECTIVE BARGAIN1 Before Between: Before: -- THE GRIEVANCE SETTLEMENT BOARD OPSEU (Barbara Walker) - and - The Crown in Right of Ont (Ministry of Transportati Communications) NC ACT Grievor ario on and Employer. R. 1. Verity, Q.C. Vice Chairman I. Freedman Member G. 6. Walker Member For the Griex: J. Allan Millard __- Barrister and Solicitor For the Employer: P. W. Codner ---._ Staff Relatibns Officer Hearing: Personnel Service5 Section Human Resources Plannin~g and Services Branch Ministry of Transportation and. Communications January 10, 19115 - 2 - DECISION 4 This grievance arises from the failure of Mrs. Barbara Walker to receive appointment to the position of "Inspection Station Supervisor, Fruitland". A vacancy .in that position gave rise to a Ministry central region competition which was posted in late February 1984. Presently, Fruitland truck inspection station is a two person operation consisting of a Supervisor and one other employe,e, a Highway Carrier Inspector 2. Douglas Ryerson won the competition and thereby secured the appointment. Mr. Ryerson was present throughout the Hearing but was not called upon to testify. Although given every opportunity to do so, Mr: Ryerson chose neither to pre- sent evidence nor to question witnesses. sen i The Of the two employees, the Griever has the greater ority, with-seniority dating back to November 14, 1974. incumbent's seniority date is 3anuary 19, 1981. ,- When filling a vacancy under Article 4.3 of the Collective Agreement, seniority is not a consideration unless the primary consideration of qualifications and ability are deemed to be relatively equal. The Article in question reads as follows: , I “4.3 In filling a vacancy, the Employer . shall give primary consideration to quali- fications and ability to perform the re- quired duties. Where qualifications and ability are relatively equal, length of continuous service shall be a considera- tion. The relevant posting contained the following infor- .mation: “THE 308 To regu.late and control the safe and legal operation .of commercial vehicles of the Highway Carrier Industry by: -supervising and training staff at a per- manent truck inspection station ,-conducting investigations into alleged violAtions and complaints -preparing detailed reports and appearing in court as a witness on behalf of the Crown -occasionally patrolling a designa,ted. area and ensuring that the Highway Carrier Industry is complying with the pubtic Commercial Vehicles Act, Public Vehicle Act, Highway Traffic Act, Motor~VehicLe Transport Act (Canada), and their regula- tions. THE CANDIDATE: Must Have I. Successfully completed Highway Carrier on-the-job schedule’or equivaient experience and training. 2. Successfully completed Highway Carrier orientation course at Ontario Police College. 3. Previous experience as a Highway Carrier Inspector. 4. Sound working knowledge of the policies, procedures, acts and regulations governing the Highway.’ Carrier Indus’try. 5. Valid Driver’s Licence ,and be in good physical condition. Should have A. Good communicative skills and the ability to deal tactfully, courteously and effectively,with the public. 0. Supervisory experience. C. The ability t.6 work+ and eiercise judgement with only minimum super- vision'. D. Good analytical and,organizational skills." ’ The purpose of the position is described in the Posi- tion Specification and ,Class,Allocation Form as follows: ’ "To supervise the Station Staff in the regulating of commercial vehicles~ on the highway and to protect the public and high- way roadbed through the enforcement of 'legislation pertaining to the Highway Carrier Industry.” The Job Specification summarizes the duties and re- sponsibilities of the positio,n in the following terminology. “1 . 35% Supervises the Highway Carrier Inspection Station Staff in the performance of their enforcement duties by: (a) Scheduling the operation of the sta- tion to achieve maximum coverage of the operations over the highway by the ~industry on a monthly basis. (i.e. late shift,. early shift, midnight shifts over the seven days of the week) in conjunction with other Supervisors. (b) Assigning officers to duties to carry out an effective inspection programme; (i.e. traffic direction, weighing, visual inspection); (c) Instrudting staff on Legiglation (new and existing) and its intricacies of a’pplfcation explaining through working examples off vehicles coming through the station; 1 -5- (d) Explaining polici~es used to cover a variety of situations and the reasons for their applications; (e) Reviewing Highway Carrier inspection procedures with staff on a constant basis to ensure efficiency; (f) Reviewing performance of new staff and recommending areas of improvement, Submit- ting written appraisals of performance; (g) Reprimanding staff on inadequate~ per- formance, documenting and referring se’rious discipline problems to District Inspector; (h) Instructing the D~fficers in co.urt pro- cedure and the ~giving of evidence and eval- uating his performance; (i) Auditing and reviewing work submitted by staff (e.g. reports, surveys, memoran- dums), to ens:ure conformity. z 2: Resolves unusual, complex or difficult. station si,tuations referred from staff by: (a) Checking documents submitted, checking .load for evidence, analysing details to assist in making a decision; reviewing all information collected and comparing with the operating licence, deciding whether the operation is within the terms of operating licence or in violation; (b) checking serial numbers obtained from 15% vehicles and comparing against registra- tions submitted by driver and if a~ discrep- ancy, phoning vehicle licensing for filed~ details relating to vehicles. Determining if there is~a confirmed switched plate violation and removing the plates; (cl Determining after a vehicle is found to be overloaded, whether policy dictates removal of excess load, shifting of load, or allowing loaded vehicle to proceed; ,. (d) Detaining unsafe vehicle and having unsafe conditions corrected or 'on the in- structions of the police authority or man- agement having plates removed. 3. Participates in the operation of the Inspection Station by: (a) Checking documents, bills of lading, registrations, load; (b) Dete,rmining if U.S.A. .registered vehicles qualify for a fives day permit by I - 6 ‘-, 30% checking documents received from driver, completing application; collecting fee and issuing five day permits. 4. 1,nitiates preliminary investigation of suspected violation by: (a) Directing the staff in collecting and recording the information available from 'driver, loads and documents; (b) Auditing reports and advising’staff on 10% how to obtain other pertinentinformdtion; (c)' Filing a report of inspection indi- cating a promising course of action to District Inspector; (d) Directing the e.xamination of the driver and filling in the answers on the applicable lease investigation form; (e) Questioning the driver to obtain fur- ther informationpertinentto the -suspected violation. (This may lay the ground.work for a successful investigation.) 5. Commences court action of.alleged.violation by: (a) Auditing t'he documents and reports of inspection authorized for prosecution; (b) Reviewing reports with Court Officer and defining possible problemsof prosecut- ing (e.g. one information for two persons on joint charge, two~summonses); (c) Completing requests for summons; 10% (d) Maintaining court file on charges laid before the Court and ensuring the presence .of the Officers at the Court on the correct date; (e) Giving evidence in Court; (f) Finalizing reports of inspection be- fore submitting tom District Office. 6. Performs other related duties by: (a) Determining course of. action in emer-. gency situations (e.g. collisions, vehicle fires, injuries); (b) Requisitioning supplies and materials for the efficient operation of the Inspection Station; 5% Cc) Relieving district personnel as re- quired; (d) Maintaining an excellent working rela- tionship with other enforcement bodies by - 7 - cooperation and communication of mutual areas of concern; (e) Answering enquiries from public, police, drivers and owners of.highway carrier vehicles.; (f) Preparing and auditing various reports for submissions to the District Office (e.g. reports,, surveys, memorandums); (g) Maintaining the safe operation and security of the Inspection Station; (h) Ensuring that all Act and Regula- tions, bulletins; books are catalogued and up to date for quick positive reference; (i) As assigned.” There were, seven applicants for the position. Five applicants, including the grievor, were deemed qualified, and. accordingly each of the five qualified applicants received a l/2 hour interview on. April. 19. Burlington District Personnel Officer Len Malloy, testified th’at he served on the three person selection commit- tee together with District Inspector Garth Bassett and District Manager Paul Wake. Evidence established that each member of the selection committee reviewed candidate personnel files sometime prior to the interviews,and that Supervisor reports , were als’o considered. Mr. Malloy testified that the successfu~l applicant was required “to have sufficient technical knowledge,,to perform the job” in addition to supervisory abilities., The questions - 8 - ,were prepared by Mr. Bassett and reviewed for refinement by other selection panel members prior to the interview.s. Ques- tions were divided into two basic categories - one to test of technical, knowledge, and the other to focus on leadership or supervisory qualities. Seven technical questions'were posed to each candi- date: "1 . Define ‘Principal Place of Residence’ as’ it relates to reciprocal agreements with some states of the U.S.A. and sections 7 and 10 of .the H.T.A. 2. Define a two axle group. 3. What is the period of limitation to swear to an information under Part.3 of the P.O.A. after the date of the offence? 4. Explain what a Class 'L' operating licence authorizes the holder to do. 5. The PCV Act authorizes the holder of an operating iicence to transport fertilizer in bulk to and from any point in Ontario. (a) Would this include the holders of a class 'X' or 'Y' operating licence? (b) During what months of the year would this apply? (c) What type of vehicle may'be used? 6. What is the tolerance allowed, by policy, on a triple axle unit before off loading is required? 7. By policy, O/O permits are not to be issued to carriers for State to State moves using Ontario as a corridor. What is the e?ception to this policy? - 9 - Mr. Malloy’s evidence was to.the effect that he had been advised by Messrs. Bassett and Wake that ail seven techn- ical questions were “common occurrence questions”. Five ques- tions were asked under the Leadership component as follows: “1 . How would you motivate a member of your staff ,when it is, apparent excessive time is spent completing a C.V.R.? 2. Within the terms of the Collective Agreement with respect to Working Condi- tions, how m~any days in advance must a shift schedule be posted? 3. Explain how you would instruct a new officer to physically inspect a C.M.V.? 4. What guidance would you give a subordi-. nate that continually disagrees with Ministry operational policy? 5. What methods or procedure would YOU implement to maintain yours staff’s know- ledge of Ministry objectives and legisla- tive changes as it applies to the Highway Carrier function?” The weighting factor given to the technical questiqns was IO, and to the supervisory questions 8. Each question was rated on a scale of 0 to 5 points. For example, an excellent answer achieved. 5 points, a.good answer 4 points, a fair answer 2 points, and a poor answer 1 point. If a candidate failed to answer the question, or answered the question imcorrectly, the mark recorded would he 0. The marks in each section were totalled and then multiplied by the weighting factor. - IO- The predetermined formula for testing o.f applicants was that the interview accounted for 60% of the'total mdrks with 20% for the employee's personnel file and an additional 20% for the superviso~r's report. Mr. Malloy testified that Mr. Ryerson achieved the highest result of the five applicarrts in the interview teiting with a total mark of 410 points 'while the grievor achieved the lowest rating with a mark of 78 points. The second p.lace can- .: didate receive,d a total interview mark of 2lO~points. The selection board assigned~ no formal mark to zany candidate for personnel records o'r supervisor's comments. Marking of individual results took place after all interviews were completed. The selection committee marked each candidate collectiv'ely and by consensus. No marks were.reA corded by individual selection committee members. However, each panel member did record the answers of each candidate to individual questions, In his testimony, Mr. Malloy stated that both 'the Griever and the incumbent submit~ted "good app 1 ication forms" and were considered good employees and that both were relative- ly equal in terms of personnel records and supervisor’s re- ports. The position was awarded to Mr. Ryerson on the.basis of - ll- I his overall mark during the interview. The seniority of appli- - : cants was not considered by the selection panel. The Griever testified that she has ,served as a High- way Carrier Inspector since 1978, and had both the qualifica- tions and the ability to perform the job. Her evidence was to the effect that in 1981 she served for a period of some two months in the capacity~of acting Supervisor at Fruitland during the absence of her Supervisor. In addition, she manned the two personstation alone~during p.eriods when her Supervisor was .. absent by reason of illness or vacation. The Grievor acknowledged that she answered severa technical questions incorrectly.during the interview. She alleged that in her opinion some of the technical.questions‘ were unfair in the sense that they.were not.based on everyday occurrences. However, she’ was satisfied with her answers in the series of supervisory questions. On behalf of the Union, Mr. Millard argued that as the griever and the incumbent were deemed to be relatively equal ‘in terms of personnel files and supervisor’s comments, that the decision was made solely and improperly on the basis of the interview. The thrust of the Union’s argument was the selection procedure was so flawed that the result coul that d not - 12-. be sustained. By way of remedy, Union Counsel advocated award- ing the position to the Griever pr alternatively directing that a fresh competition be held. The Employer contended that the,Grievor had not dis- charged the onus of proof’of relative equality between the d grievor and.the incumbent in terms of qualifications and abil- ity. Mr. Codner argued that the selection. procedure’s, although perhaps not flawless, were reasonable and that disparity in test, results justified the selection of Mr. RyersoA. Mr. Codner alleged that there was no evidence that the selection committee proceeded arbitrarily, discriminatorily or in bad faith. Numerous arbitral precedents were submitted by both parties. On the evidence, the Board accepts the fact that the grievor was basically qualified f,or the position. Had she not been so qualified, she would not have advanced to the interview stage. The griever was described as a, good employee by person- nel officer Malloy. In addition, the griever’s former super- .* visor, E. G. Tomlinson, in a Performance Appraisal dated October 28, 1982, gave the griever an “excellent” rating and made the recommendation that she was capable of a supervis’ory post. ; - 13- However, for the’g’rievor to succeed in this matter, she must distiharge’the onus of establishing that she was rel- atively equal in terms of qualifications and ability to Mr. Ryerson.’ Alternatively, the Griever would succeed if the evi- dence established~ the selection procedure was so flawed that the d,ecision could not be sustained. Of course, the griever would also succeed if the evidence established that her quali- fications and abilities were superior ,to those of the incum- bent. Having reviewed the evidence carefully, the Board is unable to finds that the griever’s qualifications.and,ability for the job were relatively equal to those of Mr. Ryerson. For whatever the reason Mr. Ryerson was not called upon to’present evidence. This Board’s knowledge of Mr. Ryerson is limited to \ the interview results And the evidence of Mr. H’alloy. H.owever, we do know that the griever was deemed to be relatively equal to the incumbent in terms.of personnel records and supervisory reports. Hoth applicants had limited supervisory experience. Mr. llyerson had performed supervisory resppnsibi~lities “on sev- erdl occasions” at the Oakvillc station which is a ‘larger oper- ,I t ion t h a n the 1-r II I t 1 .1 n d s t a t i o n . As referred to preyious.ly, I: I\ e q r i e v 0 r w a 5 a p I, 0 i n t cd d c t i II g s I! p e r v i s 0 r at t h c I- r u i t : and sl.,~thr~ tn. 19Al for d Lwo month period. . - 14 - However, the incumbent performed well during the interview process. Quite simply, the same cannot be said for the griever. For whatever the reason, the griever achieved a , "poor" rating in the answers to three technical questions and failed to answer or answered incorrectly four other questions. Tn the questioning r.elated to leadership criteria, the grievers re~sults were generally fair to poor. Mr. Ryerson achieved an excellent rating in the answers to five questions and a good rating in the answers to four questions. The incumbent placed first in the test results while the griever placed last. In addition, the.incumbent was the unanimous choice of the selec- tion committee. On that evidence it is difficult to find that the grievor was relatively equal within the meaning of Article 4.3. Turning to the procedures followed by the selection committee, the job in question is technically orientated, and therefore interview questions were hesigned by the selection committee to elicit the extent of technical knowledge. Detailed knowledge of relevant legislation and regulations pur- suant to the Highway Traffic Act, the Public Commercial Vehicles Act, the Public Vehicles Act and the Motor Vehicle Transportat ion Act, are essential requirements for the job. 'The seven technical questions were indeed relevant to the job and cannot be characterized as trick questions. Admittedly, 1 - 15- some of those questions were difficult as Is evidenced by the fact that no applicant was able to' answer the final technical question. Similarly, the Board f'ind,s that the five questions posed under the leadership~or supervisory component were also reasonably job related. While it remains a truism that no selection procedure can emerge unscathed under scrutiny, the Board has some con- cerns with the procedure followed'in the instant matter. It is regrettable that the'selection panel did not review candidate personnel files immediateLy prior to each interview. Vice-Chairman 3olliffe commented on that matter in Ellsworth, et al and Ministry of Community and Social Services, 361180 at page 24: "Abetter approach would have been to pre- pare a file on each candidate, including the application and attached history, all available performance appraisals and letters of reference, if any, and to study the file carefully. before each interview. The 'track record' of a candidate, good, bad or indifferent, may well be more signi- ficant than the impression made by the can-~ didate.at a brief interview." In the instant grievance, it is unlikely that a re- view of personnel records in the manner described by Vice-Chairman SolLiffe would have changed the end result. However, such a procedure would have enforced the concept OF greater objectivity. Similarly, it .is regrettable that each selection panel member did not assign individual marks to a candidate following an interview with comparison of results by panel members at the conclusion of the final interview. Marking by consensus at the conclusion of the final interview tends to reinforce the charge'of subjectivity. Had the inte~rview test results beenclose as between the two candidates, it is debat- able that marking by consensus would have been deemed an acceptable procedure. Similarly,~it is preferrable to complete all aspects of assigning marks in accordance with the pre-determined testing criteria. Here, no marks were assigned to any candi- date for personnel files or ~s,upervisor's comments. Admittedly, there'were defects in this competition; however, in the circumstances, the Board is satisfied that the selection panel made reasonable efforts to assess fairly the relative merits of each appl,icant. Tn summary, the Board does not find that the competition was improperly conducted and we do f,ind that the end result was correct. One further matter merits comment. At the conclusion of the Hearing, IJnion Counsel Millard advised the Hoard that he had been unahle to secure relevant documentation from the Ministry prior to the Hearing. Tt is not difficult to under- stand the frustration faced by Union Counsel when the onus is on the griever to establish a prima facie case of relative equality when only the Employer possesses the relevant informa- tion. Tn competition grievances, there is no valid reason to withhold information from the yrievor. Where there is failure to disclose relevant information, ‘the griever may conclude that the,process is both tainted and inherently unfair. In the instant grievance, had the Ministry been more forthcoming and had produced the requested documentation, this matter may well have been settled without resort to arbitration. Tn the result, this grievance is dismissed. DATED at Brantford, Ontario, this 19th day of February A.D., 1985. ‘Vice-Chairman _--.----I_ C. fJ. Walkrr - Member