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HomeMy WebLinkAbout1985-0457.Saras.88-04-28Between : ----a-- Before: ------ For the Grievor: --------------- ?or the Emglopr: ---------- -- -- IN THR RATTER OF AN ARBITRATION Under THE CRONN EMPLOYERS BARGAINING ACT Before THE GRIEVANCB SETTLEMENT BOARD Hearings: ------ - OPSRU (‘P.S. Saras) TEB CROUN IN RIGHT-OP ONTARIO (Ministry of Labour) Kenneth P. Swan Vice-Chairman I.J. Thomson member B. Orsini Xembez ’ N. Roland Counsel Cornish 6 Associates Y. II. Pleishman Law Officer Crown Law Office Civil ninistry of the Attorney General November l&l, 1986 January 19, 1987 457/05 Grievor Employer DECISION The present grievance is to the effect that Mr. Thomas S. Satas was improperly denied a promotion to the position of Senior Edit and Coding Clerk (Clerk 3 General) in 'the Standards and Programs Department of the Ministry of Labour. The success- ful applicant was Ms. Dianne Parislen, who was given notice of . the hearing, and attended it. Ms. Parisien was invited to make any representations which she might wish, but apart from. giving evidence as a witness for the Employer, she did not do so. This ii a case involving a competition for a posted vacancy, a situation which is covered by Article 4..3.of the. Working Conditions and Employee Benefits Agreement. That provision is as follows: ' 4.3 In filling a vacancy, the mployer shall give primary consideration to qualifi- cations and ability to perform the required duties.. Where qualifications and ability are relatively~ equal, length of continuous service shall be a consideration. There is no dispute that the grievor was senior to Ms. Parisien, and would therefore be entitled to the job if his qualifications were relatively equal'to hers, or better. The Union argues that his qualifications are in fact superior to Ms. Parisien's, and that he therefore would have been awarded the job but for the flawed procedures employed in assessing his qualifications. The posted job of Senior Edit and Coding Clerk may be most easily described by reference to the position specification . for the' position. The summary of duties and responsibilities ., i’;; t . . - 2 - from that position specification is as follows: 3. Summary of duties and responsibilities 1. Carries out a variety of editing and coding duties by performing such tasks as: receiving monthly computer listings and reports, sorting into regions and districts, boxing, labelling and mailing to appropriate manager, supervisor, administrator, etc.1 ensuring the accuracy of computerized information on Project Masterfile, Employer Masterfile, Employer Registration, Non- Matching activity and inspection report, accident report, etc.: correcting monthly error listings, i.e. checking microfilm reader, source document, etc.: determining appropriate methods of correction, resubmitting correct document, change form, etc.; returning incomplete or inaccurate forms to Regional Offices for completion and/or 50% correction; resolving processing and procedural problems, referring complex and technical problems to supervisor and/or .systems personnel: issuing new proj~ect numbers on duplica- tion; forwarding information to appropriate office: conferring with WCB to correct duplicate or erroneous numbers: with companies to' verify information, e.g. name, address, etc.; maintaining monthly Masterfile record and company listing record: answering enquiries from Regional Offices; consulting with Regional Offices for confirmation of information. 2. Ensuring accuracy of data input received from Edit and Coding .Clerks, and reports received from Regional Offices by: checking and ensuring completion of mandatory fields, e.g. name, address, month 35% due, duration, project number, etc.: determining whether input is new, amended or deleted, passing appropriate information for correction and updating of files; preparing or requesting additional forms as appropriate, e.g. name and address form, deletion form, etc.: - 3 - assigning and recording operation numbers, company numbers and accident numbers ; .editing "Designated and Toxic Substan- ces" forms received from Regional Offices to ensure completeness and consistency: batching forms, recording in register, .assigning number, preparing control slip, forwarding to Systems; preparing and submitting. weekly and monthly data reports to supervisor. 3. Performs other related duties such as: receiving'and sorting daily incoming mail; distributing to appropriate sections or persons: training new staff in edit and coding , procedures, instructing in use of Microfilm 15% reader, etc.: typing monthly attendance report for the Branch, checking final report with the supervisor, passing to Director for signa- ture: assisting .in preparation of operating procedures for the section; acting as Section Supervisor during absences, i.e. vacations, etc.; as assigned. ,.. Basically, the Senior Edit and Coding Clerk acts as group leader for a number of clerks at the Clerk,2 General level, and works in the same area as the job which the grievor had held for about six months prior to the job posting. Employees in the office are responsible for the maintenance and development of three data bases servicing the Industrial, Construction and Mining Occupa- tional Bealth and Safety Divisions. 'As group leader, a Senior Clerk is responsible for a particular data base and, in a general way, for the work of the Edit and Coding clerks assigned for the time being to that data base. The posting for this position, which set out the responsibilities and qualifications expected to be assessed in - 4 - the competition, was, in material part, as follows: Required by Standards and .Proqrams Branch to ensure the accuracy of computer data for the .Industrial, Construction and Mining Health and Safety computer systems. Responsibilities include: researching and correctina monthlv error listinas on comvuter ,reports; checkinq- for accuracy -and compiete- ness in inspection and other reports for- warded by edit and coding clerks: resolving processing and procedural problems, i.e. contacting Workers' Compensation Board to correct duplicate numbers; assisting with the preparation of section operating procedures: and acting as section supervisor during vacations, absences, etc. Location: 400 University Avenue, Toronto Qualifications: Previous experience in an editing and coding function. A good under- standing of .computer systems. Knowledge of office procedures and practices. Ability to organise workload and pay close attentionto detail. Ability to compile accurate data,and 'work independently with minimum supervision. Group leader experience an asset. Good communication skills to deal with staff and outside contacts. Qualified civil servants currently working in the Standards and Programs Branch are invited .to submit detailed applications and/or resumes quoting File NO. LB 271/04-85 to: . . . Against this 'posting, it will be helpful to set out a general review of the qualifications of both the grievor and the eUCCessfU1 applicant. Mr. Saras his a native of Greece, where following graduation from the secondary school system he received a B.A. in a combined course of law and political and economic 'science at the University of Thessaloniki. He also completed - 5 - courses in business in Greece, and a course in marketing in Rome on a scholarship. Following formal studies, he spent two years 'in the Greek army as an officer, where he was trained in NATO cryptography. After his military. service, he became general manager of a shoe manufacturing company, which he testified he brought from a relatively small company to a large enterprise during 'his time there. In 1970 he immigrated to Canada. .In Canada he has taken courses in English, business and real estate, and has been a member of the Appraisal Institute of Canada since 1979. Re is also a certified thermographer and a member of the Thermoqraphic Institute of Canada; He has ytudied, 'advanced economics at' the Canadian Labour Congress'summer school, 'and has taken courses in labour and the economy and labour and the political process.,,throuqh his union. In 1983 he took a Canadian law course at Ryerson Poly- ' technical Institute, and in 1985 he took a course in Canadian arbitration and labour law at Humber College. Be began work with the Ontario government in 1971 as a cleaner in the Ministry of Government Services at various locations, including a stint as an acting supervisory cleaner in 1978. Following an accident in 1981, he stopped working as a cleaner and did various short-term tasks at the Ministry of Agriculture and Food on special projects in Clerk 3, Clerk 4 and Clerk 5 positions. In May 1983 he transferred to the Ministry of the Environment, where he worked as.a file clerk for several months. From there, he applied for the Clerk 2 General position . ‘: - 6 - in the Ministry of Labour, where he began on November 12, 1984. At the time of the posting in April 19.85;he had completed just over five months work in that office. In addition to his work for the government, the grievor has been active -in the affairs of his ethnic. community, and is the publisher and editor of a newspaper, Patridis, which serves the Macedonian community in Canada. Ms. Parisien has been an employee of the Ministry of Labour since 1978, beginning as a file clerk for several months, then as an Edit and Coding Clerk for three and one-half years, then as a Follow-up Clerk for three years, finally becoming a Senior Edit and Coding Clerk on an acting basis from January 1984. As a ~result, she had been acting in the very position .~which,was posted for over a year at the time of the competition. Her education includes secondary school graduation followed by bookkeeping and banking courses at Sault College. She also spent two years at George Brown College on a business administration course toward the R.I.A. certificate before leaving to begin work for financial reasons. She has taken courses at Woodsworth College at the University of Toronto in computer programming and accounting. In many ways, this case takes a classical arbitration scenario and exaggerates it almost to the limits of belief. The arbitration jurisprudence is rife with cases where two employees are in. competition, one of whom has better general qualifica- tions, and the other of whom has better specific qualifications - 7 - based upon extensive experience performing precise.ly the posted job in an acting capacity. That is the case here, but it is.rare #at the general qualifications are so outstanding as Mr. Saras' are, or that the specific qualifications are as extensive and ,directly related to the work as Ms. Parisien's are. There is no doubt that Mr. Saras is a much better ' qualified individual, in general terms, than is Ms. Parisien. That is not surprising; he is considerably older than she is, and has had considerably different educational opportunities. There is, of course, nothing in' this to denigrate Ms. Parisien's qualifications, which constitute a hard won accomplishment. In general terms, howevar, not even Ms. Parisien would deny thatti. Saras has much more fmpressfve'education and experience. On the other hand, it is difficult to.imaqine .anyone better prepared than Ms. Parisien by direct "hands-on' experience to take on the job which was posted, a position which she held on an acting basis for more than a year prior to the posting. She had worked in virtually all the positions for which this job acts as group -leader, and she had done all of the group leader func- tions on an acting basis. Her performance appraisals are excellent, and she is obviously a valued and respected employee. Once again, this is not to denigrate Mr. Saras' contributions to the Ministry. While he had been there only a very short time, he also was obviously becoming a valued employee and had received an excellent performance evaluation. . , There are really two issues to be resolved in this - 0 - case. The first is whether, as a matter of substance, the selection committee which Gas established, and whose delibera- tions we heard ahout in minute detail, could have come to the decision to promote Ms. Parisien over Mr. Saras on any reasonable basis. The second is whether certain obvious flaws in the selection process are proof of bias, or whether there is another explanation for why the selection committee got,certain of its facts about the relative qualifications of these two individuals so obviously wrong. We turn first to the guestion of substance, As we have observed, the situation of a competition between general qualffi- cations and specific qualificationis not unknown in the arbitra-' tion jurisprudence. On the other hand,.it does not really raise any new issues of principle. Under the collective agreement, there is a requirement that primary consideratfcn be given to qualifications and ability "to perform the required duties". Thus it is not qualifications in the abstract which must be considered, but those qualifications in precise reference to what the job is all about. On that basis, therefore, we think it was entirely open to the selection committee to conclude that MS. Parisien had qualifications, for this particular job, which were superior to those of the grievor. There is no doubt that the grievor would have been able to perform the posted position, and probably to perform it very well indeed with experience. But the job involves group leader functions in a high volume clerical operation, in which the group leader serves as a resource to the members of the group as well as a check on their accuracy and dependability. The grievor had performed related work both in this Ministry and in earlier temporary positions, but even in his job at the Ministry he was performing a function in a different section from the work which was to be done in the posted job. It seems likely to us that, at least for some significant 'time after the grievor took over this job, the members of the group would have had to provide the resource to him, rather than the other way around. Based upon all of the evidence before us, we would conclude that Ms. Parisien, was a significantly better qualified candidate for the precise job being advertised, whatever might have been the grievor's superior general gualifications. We turn 'finally to the question of whether the, selec- tion process itself was so flawed that the outcome is .suspect. This beccmes necessary because it is clear from the evidence put before us that all the information given to us was not given to the selection committee, and the selection committee therefore made its decision based on a somewhat different evidentiary base. We shall return below to the differences in the material before. ,us and the committee, and-the reasons for those :differences. The Union was able to point to a number of flaws in the selection process in this case, but as counsel for the Employer riqht~ly observed, it is possible to pick holes in almost any process run by mortal human beings. In. fact, some of the Union's complaints about the process are really quite trivial, and need - 10 - not exercise us here. There are, however, four complaints which require to be addressed. They are the failure of the committee to look at the complete personnel files of the candidates, the scoring of applicants by consensus, the 'obviously incorrect assessment of the attendance records of the grievor and the incumbent, and the apparently incorrect assessment of the grievor's communication skills. The Board has commented in a number of cases on a failure by members of a selection committee to read the personnel files of the applicants; 'see, for example, Roffman 22179, at page 8. In general, it would be preferable for'.selection committees to undertake such a review, to get a fuller picture, of ehe individuals with whoti they are dealing. In this cas.e, however, it is simply not clear that the grievor was done 'any great disservice by such an omission. All.candidates were permitted to fill out a standard application for employment form, which provides space on two pages to describe an applicant's qualifica- tions and employment history. Applicants are invited to submit additional information on a separate sheet. It is of interest that the grievor did not make any reference on that form to his previous experience and temporary positions, which he told us were at the group 3, 4 and 5 levels. Presumably this information would be on the personnel file, but we cannot help but wonder why it did not seem sufficiently important for the grievor to put it on his application form, although space was available, but was - 11 - unused, to record one further job on the form itself, and addi- tional sheets could have been added if desired. There appears to he nothing else on the grievor's employment record which would be of any real assistance for a. job of the present kind, so the grievor has really only lost reference to some further temporary jobs. by the failure of the committee to review his file, and those jobs were not sufficiently important to him to make ref- erence to them on his application form. The second problem is that the selection committee graded the candidates by consensus, rather than by coming to an individual separate judgment anti then averaging. Grading by consensus has beenreferred to by the Board with disapproval in Walker, 514/84, on the basis that marking by .consensus tends to reinforce the charge of subjectivity. As in the Walker case, however, the overall grades of the 'grievor and the successful applicant are so far apart that it is difficult to conclude from the process of marking by consensus anything except that everyone on the selection committee thought that the incumbent was much better qualified for the particular job than the grievor. On the question of attendance, the grievor r'eceived~ three out of five, while Ms. Parisien received five out of five. This disparity was despite the fact that, at least during the period of time over which the grievor was employed at this Ministry, their attendance records were virtually identical. The distinction seems to have been made on the basis that Ps. Parisien's record at the Ministry went back several years, and - 12 - her attendance was always excellent, while the grievor only had five months of excellent attendance to show. This conclusion is, of course, palpably wrong, and one &hich would have been cor- rected had attention been given to the personnel files. Never- theless, even once this error is corrected, the total scores ‘of the grievor'and Ms. Paris& are still far apart. Finally, counsel for the Union argues that the fact that Ms. Parisien received a higher mark in "communication skills" than did the grievor indicates bias on the part of the selection committee, since the grievor is obviously better qualified. in communications by reason of his non-work social, political and publiehing.,,activities. While that statement may well be true, it does not necessarily indicate that the grievor' was able to put any of that across to the selection committee at the interview. In fact, none of this information appears on his application, and the evidence is in dispute about whether he made any mention of this kind of outside experience in the course of the interview. Once again, evening up the score in this area would not bring the grievor within striking distance of the score finally given to Ms. Parisien, but we think it is essential to observe that there may be another reason why the grievor did not do very well at the interview. He indicated that he had considered that the job would be awarded to Ms. Parisien .as a foregone con- clusion, and that he only put in his own application *as a matter of principle". He was unable to explain to.us precisely what principle he thought he was vindicating in this way, but there is an obvious inference that he thought he was simply going through the motions, and in the process that he denied fhe selection committee some of the information which they should have been able to consider, and may well have displayed little enthusiasm or interest in the job. While we cannot know that for sure, it 1 is at least as plausible an explanation for what is an unexpected assessment of his communication skills as the suggestion advanced by couneel for the Union, that the members of the selection committee were biased against him and deliberately downgraded one of his strongest assets. In the result, elle we Mayo not be happy with every- thing that happened in the course of the selection, we ~have.come to the conclusion that the process as a whole was not unfair nor was it caiculated'to lead to an incorrect result. We have also concluded th'at; on a somewhat larger body of evidence placed before us at the hearing, and on an objective basis, Ms. Parisien was in fact better qualified for the specific job at issue than was the grievor. In the result, therefore, the grievance must be dismissed. - 14 - D&TED AT TORONTO, Ontario this 29th day of April,1988.