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HomeMy WebLinkAbout1985-0141.McIntyre.87-08-10IN THE MATTER OF AN ARBITRATION UNDER TRE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEPIENT BOARD BETWEEN: OPSEU (Paul McIntyre) Grievor -And - TRB CROWN IN RIGHT OF ONTARIO (Ministry of Community and Social Services) " I BEPORR: P. Knopf Vice-Chairman R. Russell Uember G. Peckham Member FOR TRE GRIEVOR: A. Millard COUIlS.21 Barrister and Solicitor FOR THE EMPLOYER: C. Slater Counsel Ministry of Comwnity and Social Services FOR THE INCDHBENT: August 11 and 12, 1986 t-hay 26, 1987 Employer AWARD ~This is a job competition grievance. The grievor, Paul MCIntyCe, claims that he was improperly denied the positon as a Welfare Field Worker I Income Maintenance Officer. iis alleges that the persons awarded the job had less skills, qualifications and seniority than he possesses. The remedy he seeks is that the job be awarded to him. At the time of the job competition, two vacancies existed and were filled after the competition was held. One ;..# of the successful candidates subsequently resigned, but that position has been eliminated. The other successful candidate, Ms. Brenda Canga~s, still holds the position and - appeared at the hearing with all the rights of an incumbent. She was present throughout the proceedings. Although she was offered the opportunity to 'be represented, to call witnesses,' examine and cross-examine the witnesses and maka submissions, she chose not to participate actively in the hsaring. However, she did testify. The job of an Income Maintenance Officer is an important and difficult one. It involves investigating and obtaining information regarding eligibility of persons for assistance under the welfare allowances programmes. The Income Maintenance Officer gathers information on applicants from home visits and verifies this information by going to banks, insurance companies, reyistry offices, and wherever is appropriate. The Income Maintenance Officers deal with a large caseload of approximately 350 files involving families depending upon assistance for their economic survival. As well as receiving the relevant and requisite information, the Income Maintenance Officers also determine eligibility for assistance under the various assistance schemes available. They also provide guidance, referrals and counselling to their clients to cunnect them to all possible avenues of - 2 - assistance available in the community. Clearly this job calls for a blend of intelligence, patience, organizational skills and compassion. The job posting sets out the demands that the .Ministry made on the applicants: QUALIFICATIONS: A mature and highly motivated individual is required and must possess a detailed knowledge or demonstrated ability to acquire a detailed knowledge of Family Benefits and related legislation. A demonstrated understanding of financial transactions such as mortga tes, insurance policies, etc. Candidates will also be assssscd on their ability to make decisions and to calculate accurately allowance entitlements. The ability to organize, priorize and manage a .large caseload. The ability to work under the pressure of various deadlines and to work both independently and as a member of a team. Working knowledge of community social service agencies. .Must have a proven record of exercising good and mature judgement and have the ability to deal tactfully with clients; various employees and. cpmmunit~ agencies while utilizing discretion in dealing with matters of a confidential nature. Applicants must have proven verbal and written communication and language skills and the ability to interpret and explain legislation; proven abili ty to interview effectively; ability to maintain case records and demonstrated ability to prepare and write comprehensive, organized reports. Excellent interpersonal skills a’re required as well as sonsi tivi ty and empathy to client needs and the ability to maintain good rapport with both ~clients and other staff members. The possession of a valid Ontario driver’s license. The grievor was and is very interested in the job of an Income Maintenance Officer. He has been employed by the Ministry since October 1978 at the Sprucedale School which is a training school for young offenders. Ele began as a Supervisor of Juveniles I, but a broken leg and resulting disability has left him holding the position of an - 3 - Administration and Discharge Clerk at the Sprucedale Sctiool. Mr. McIntrye has had the benefit of a university education. He has a 3.A. in History and a Bachelor of Education from the Ontario Teachers’ College in iIamilton. Mr. McIntyre became interested in the job of Income Maintenance Officer through frie’nds who worked in the Simcoe Office where the vacancies arose. ae prepared for the interviewing process by obtaining. literature fromthe office and receiving coaching and help from his friends by having them advise him of the kinds of questions to expect in the interview. Mr. McIntyre gave this Board extensive evidence outlining his education and work experience at Sprucedale School and related this to how it would give him the requisite skills and qualifications ‘as well as knowledge required for the job of an Income Maintenance Officer. In particular, he stressed his interviewing skills, report’ wtiting ability and ability to’cope with difficult situations. The incumbent, Brenda Langas, also testif ied. She has worked for the Ministry since 1983 and thus has less seniority, than the grievor. She worked in the Simcoe Office as a Clerk II and III when the vacancy existed. By August 1383 she had become secretary to the Local Adminisrator, Wr . Gadde. She also did typing, filing and setting up of appointments for the Income Maintenance Officers in the office and, at times, even did some of their work. She also held the job of an Income Maintenance Officer on an acting basis for six months when someone in the ofiice was off on maternity leave. She has a Grade 12 education. There is really no dispute between the parties as to the procedures used in tile interviewing -process and selection process for the candidates. The dispute between the par ties is over the propriety of those procedures. The interviews -4- were conducted by Richard Gadde and Neil Ambrose. Mr. Gadde was the Local Administrator in the Simcoe Office and as such would be the supervisor of the successful candidate. Neil Ambrose was an Income Maintenance Supervisor in ths London area. He lives near Simcoe and when Mr. Gadde called looking for someone to assist in the interviews, Mr: Ambrose volunteered. Mr. Ambrose had acted as an Acting Administrator in the Simcoe Office for about six'months in 1383. At that time he had worked with Ms; Langas.for approximately two weeks and with another unsuccessful candidate, Dianne Hedges, for the entire six months. . . 1 The interviews consisted of an oral question period with Mr. Ambrose and Mr. Gadde followed by a thirty-minute written examination. All candidates were interviewed the same day. All were'asked the same questions, in the same order, by the same interviewers. The Ministry filed with the Board the question and answer sheets of the grievor and the two successful candidates which had been filled out by both Mr. Ambrose and Mr. Gadde. The question sheets contained the questions, a list of what was expected or desired by way of answers, a space for interviewer's comme~nts, a possible score for each question and a space for the interviewer's scoring of the candidate's response. The "package" which made 'up the oral questions and the written test had been prepared earlier by another office and utilized in the London region for such interviews in search of Income Maintanance Of,ficers for some time. The oral and written tests Were then adopted, rather than created by the two interviewers. Both Ms. Langas and Mr. McIntyre had been interviewed before in a previous competition for the job. Neither expressed any concern over any questions and both indicated that they had expected the questions that they were asked. Neither expressed a feeling of unfairness over how the written examination was administered. i.; :. ; : .’ - 5 - The scoring of the candidates was done initially by eacn interviewer separately as each question was asked. At tna end of the interview, the total scores assigned by Mr. Gadde antd i‘lr. Ambrose were each a’dded up. There was vi’r tually no consul tation between tRem over the marks they assigned. They then’ combined the two total scores on the oral part of the interview. Mr. Ambrose markad the written test. The score on the written test was then added to the combined totals from the oral examination and a fi.nal score was reached. This score then became the basis for the ranking of the candidatas. Ms. Langas and Ms. Brinker scored 307 and 300 respectively. The grievor scored 256 .in a tie with another candidate. Two other candidates scored less. Mr. Ambrose and Mr. Gadde then decided that the top two scorers should Se the successful candidates. A reference check was then done on Ms. Brinker. No reference check was done on Ms. Langas because she had worked with Mr. Gadde and he had done a reference., check on her when she first came to work for him in 1983. The jobs were then offered to Ms. Langas and Ms. Brinker and were accepted. No checks of references, supervisors or personnel files were done on the other candidates. Mr. Gadde’,s practice was to only check references of- persons he planned to offer a job. Counsel for OPSEU argued that the competition process was flawed to such an extent that the grievor ought to be awarded the job. The flaws in the competition were said to be: (a) The failure to acquire and consider personnel files and references on all the candidates prior to making a decision. ~. (3) (c) .,,: (cl) (e)’ :.: - 6 - The fsc t that both interviewers had previous work experience with the two successful candidates was said to create. an apprehension of bias. Questions asked were not related to the job requirements or the criteria under section 4.3 of -the collecti‘ve agreement to look at qualifications and ability rather than knotilege of the job. The calculation of the total scores without correcting or comparing any anomalies between the two.interviewers in scoring on individual answers was said to lead to errors. The written test was given without any warning, was not relevant .and did not indicate the weight to be given to each answer. Because of the grievor’s seniority and his qualifications and ability that !le demonstrated at. the hearing, counsel for OPSEU urged this panel to replace the incumbent with tne grievor as a result of the flawed job competition. We were referred to the following cases: Re Renton and Ross and Ministry o’f Government Services, GSB No. 1577/84, 1578/84; Re - Fazzolari, Kumal and i3udwal and Minis try of Transportation and Communication, GSB File No; 1244/84, 1353/84 and 1354/843 and Re Gibson and Ministry of Citizenship and Culture, GSB File No. 645/34. Counsel for the Ministry argued that the obliga tionS of the employer under saction 4.3 of the collective agreement had oeen discharged. The Employer’s process was said t0 be - l- sufficient to assess the qualifications and ability oE the candidates for an Income Maintenance Officer position. The testin gas submitted to be as objet tive as is humanly possible in such a case. The oral interviews were sai:d to be done consistently and designed to giva all candidates an equal oDportuni ty to relate their abilities and experience to the job. All questions ware said to rela-te directly to the ‘. requirements of the job. Ms. Langas’s familiarity with Mr. Gadde and her having worked in the Income Maintenance Officer position on an acting basis were said not to be important unless the Union could show that tie competition had bedn carried out in bad faith. No bad faith had been alleged here. The’wri tten test was said to be relevant and appropriate and it was stressed that no witness complained of unfairness’ .in its administration. The fat t that no references were checked was said to be neither necessary nor so serious an omission that the competition should be declared as fatally flawed and that the grievance should succeed. Finally, the large amount of differential in scores by which the incumbent surpassed the grievor in the test was said to be indicative that a new competition would not create a different result. The Board was asked to dismiss the grievance. The Decision This Board is convinced that the competition was conceived and processed in the best of faith. The use of the pre-set oral and written examinations and the interviewers’ efforts to ensure that the same questions were asked of all candidates in the same order are indicative of their attempt to achieva grocadural fairness. In addition, w,a find no fault in the tests themselves nor in the way the written examination was presented. i-lr; McIntyre ‘himself thought the - I we also find no fault in the way that the scor?s in the test were CalcdlateJ. :It is tru,: that the inter?i-:tisrs.’ failura to consult and discuss anomalies in their scores on individual. .questisns could result in some inaccurate assessments on some very subjective areas. This is so because, given ihe nature of the job and tAe kinds of . questions that had to be asked, many judgmental types of answers were solicited. aut the mz thods adog ted by the interviewers here were a lesser evil than the risk Of col:lusion that would have been created had the interviewers consulted with each other on their scores. -. However, there are two major aspects of the cjmpetition that cause concern to this Board. First, the selection panel consisted of Nr. Gadde and Nr. Ambrosa. At. the time, Mr. Gadda had worked. for a number of years with Ms. Langas who was his personal secretary. Thus, he knew her well and had a close professional relationship with her. The other interviewer, Mr. Ambrose, had short work experience with Ms. Langas and a longer association with Iys. Hedges during his six months as the Acting Administrator in the office. ‘Mr. Ambrose a’nd Mr. Gadde were the only two on the se let tisn comini t tee. Most, selection committees determining job competitions consist of three people. We do not wish to ‘imply that a candidate’s supervisor should never sit in judgment of that person on, a joS comic ti tion. That would be impractical an.3 absurd 3ecause that supervisor may be the best person to assess tha requirements of the canJidates for the vacancy within the same~ office. But, one of ‘the reasons for having a selection panel is to offset the natural and understandasle preJis?osition of one intervi,zwcr who may be familiar with som; can:iiJat.zs wit!] mor’z objcctide imprassibns ga1ni:d :,y ou tsiJers. In ths cas;! at han.1, thz quEstions and answers prdszn tel to tilt> candi.Jates called for judgm-n t and ha:i to b? mar&d on a,) impressionistic basis. Thus, there was inevitably a high degrae of subjectivity involved in the marking that is both appro;,riate and unavoidable. Mr. Ambrose’s connection with tha candidates.was too remote to be of any concern to this Board. But Mr. Gadda’s orasence on tine sane1 together with only one other interviewer, could create a lagitimata concarn over the ability of the selection committed to come U:J with an 0Sjec tive conclusion. Had a third person been on the ?anzl, this concern could have been alleviated because Mr. Gadde’s in?ut,would have had less .impact on the final equasion. We do not wish to suggest that selection panels must always consist of three people. But whan a sane1 is constituted with only two people and, one of tnose people is directly connected to some of the candidates, the oroccss looses the appearance of independence and objectivity that is crucial in these competitions. But the most serious problem in this case was the selection committee’s failurs to investigate and coilsider- all the candidates’ references and personnel files. In essence, the interview test alone de tarmined who succeeded in this competition. The reference checks on the toa scoring candidates were marely done to confirm the choice that had already been made. No such tests were done on the other four candidates bafora or after the interviews. They-were simply of no interest to the committee. The Rsnton and Ross case, supra, reviews this Board’s commentary on the errors croated by selection panels which do not considers previous supervisors’ rcpcrts or appraisals. While we rccogniza that it may not always be practical or gossible to review the ,^ - 13 - files of all candidates, in this competition we can see no reason why this could not have been done with so few people being interviewed. This error gains importance when it is considered together with Plr. Gadde’s knowledge of Ms. Langas’~ because it leaves the ingression that references and backgrounds wera immaterial to Mr. Gadde because he had already pre-selected Ms. Langas for the job. I& also gave Mr. Gadde the benefit of background information on one candidate that he did not hava on other,s and yet which was easily available to the members of the’ interview panel had they so onquired. As well intentioned and careful as the selection committee tried to be in holding this competition, the make-u? of the committee and its decision not to enquire beyond the test scores except to conf inn the selection must be viewed as serious flaws in the competition process. These are flaws ‘which me,an the results of the competition cannot be left to stand. We are not areaared to say that the job should be awarded to the grievor. First, the flaws in the Process itself make it difficult to assess the grievor’s relative merits under the criteria applicable in section 4.3 of the collective agreement. Secondly,. the Board simply did not have enough evidence to convince it .that it could probably determine whether the grievor’ should be awarded the job. Under the circumstances, we feel it appropriate that the competition be rerun as between the grieiror and Ms. Langas. In the result, the Board orders that the competition shall be reopened and fresh selections made subject to the Eollowing terms and conditions. - 11 - 1. Ms. Langas and Mr. McIntyre shall retain their 2rescnt positions pending ne~w interviews and the results of those interviews. 2. The interviews shall. take place within thirty days from the issuance of this decision.~ 3. The interview panel shall consist of three persons, none of whom shall have participated in the original interviews. 4. The interview panel shall review the personnel files and performance appraisals of the candidates. In addition, each candidate's supervisor shall be requested to submit a written evaluation of his or her assessment of the candida,te's qualifications and ability. 5. The experience. of MS. Langas as an Income Maintenance Officer since the original interview shall n.ot be taken into account in making the ultimate selection. 6. The past.experience of each applicant shall be considered together with all other relevant matters. 7. This >anel shall retain jurisdiction on the issue of compensation, if apglioabls, pending determination by the new selection panel. 4 - 12 - DATCU at Taronto, Ontario, this 10th day of August 1937. p&d . 4 Paula Kno,sf, Vice-Chairman .m--- R. Russia, Member'- G. Peckham Member .