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Home My WebLink About1985-1136.Singh.88-09-26EMPLOYESOELA CO”RONNE CROWNEMPLOYEES ! GRIEVANCE DE L’ONTARIO C~Mry’lISSION DE :=LEMENT REGLEMENT RD DES GRIEFS 180 DUNOAS STREET WEST. TORONTO. ONTARlO. MS0 I.?8 - SWTE 2100 mo, RUE OUNOAS OUEST. TORONTO, (ONTARIO, MS0 IIS - BUREAU 2100 Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (Mahaish Singh) 1136/85 I I Griever and The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer R.J. Delisle Vice Chairperson I. Freedman Member G. Milley Member For the Griever: P. Cavalluzzo Counsel Cavalluzzo, Hayes & Lennon Barristeis and Solicitors For the Employer.: M. Furanna Staff Relations Advisor Ministry of Transportation and Communications M. Smeaton Staff Relations Advisor Ministry of Transportation and Communications May 14, 1988 April 28, 1988 Hearings: I 1 DECISION The grievor complains that he was unfairly denied a promotion to the position of Rehabilitation Technician. That position was created by the Ministry and advertised as open for competition, Ministry wide, to applications filed before~.August 15, 1985. There were five applicants for the position and they were interviewed by a panel of three. The questions asked, Exhibit 4, / were in relation to Technical Skills, Interpersonal/Communication Skills, and Judgment. The successful candidate, Edward Gulis, was graded by the panel so far in front of ~the other four, that, for them, seniority was never in issue. The griever. is a more eenior employee than Gulis. The grievor filed his grievance October 22, 1985. On November 21, 1985 the Assistant Deputy Minister, Bruce Alexander, held a second stage meeting with respect to that grievance and on November, 27 he wrote to the grievor, Exhibit 5, advising that in his view the selection process was flawed. Alexander's letter states that' the selection was based solely on the responses to the questions in the interview and that the failure of the interviewing panel to review the files or work record of the candidates was a fatal flaw. In addition, he believed that one" of the questions was ambiguous and given its subjective nature it constituted an unfair basis for selection. Alexander directed that the interviews be reheld with~a panel of new members, with a new set of questions, and that the panel should review the 2 personnel file of each applicant or discuss each applicant's work record with their supervisor. A second set of interviews was arranged but the grievor declined an invitation to participate, Exhibits 6 and 7. In the second selection process Gulis was again the successful candidate. At the hearing before us both the grievor and Gulis were examined regarding their qualifications for the job. The "Must HavesV1 and,~ 88Should Haves", as detailed on the notice of competition, Exhibit 3, were thoroughly explored. The griever's evidence was that he lacked three of the five "Must Have" qualifications. He testified that he did not have a "sound knowledge of Ministry specifications and practices for the preparation of rehabilitation contract packages," nor a "sound knowledge of concrete deck and concrete structure rehabilitation methods and equipment", nor a knowledge of "survey policies, procedures and practices81. Gulis' evidence was that he had all the "Must Haves" and all the "Should Haves". Roger Northwood, Head, Concrete Section, Highway Engineering Division, the griever's then supervisor, testified that on reviewing the applications the panel members believed the grievor was only marginally qualified. In their view the job required someone with construction experience and the griever's experience with the Ministry .was solely in the laboratory testing building materials. An interview was offered since the grievor indicated he had done construction design before joining the Ministry in 1968. Northwood testified that after the interviews the panel 3 believed the grievor had shown some knowledge and had there been no other applicants he would have been awarded the job. 'The experience of Gulis, who joined the Ministry in 1973, ~was almost totally involved in construction and heavily into rehabilitation of structures. On the basis of the evidence before us it is quite clear that Gulis had much better qualifications for the job. Northwood's evidence' was that, contrary to what the Assistant Deputy Minister believed, the applicants' supervisors were consulted. He, Northwood, had supervised three of the applicants, he contacted the supervisor of another, and another panel member contacted Gulis' supervisor. The panel took a&l this into account and. the A.D.M. was simply wrong. In cross- examination however, a detailed analysis of the grading of the answers left the Board disquieted to say the least. It was especially disturbing to learn that Northwood was prepared in his language, "to horse-trade" with the other panel members over grades to be assigned, to gain a consensus, and that as a result the griever's grades were lowered. What are we left with? The grievor complains in October, 1985 that the selection process conducted in September, 1985 was flaued and that he was prejudiced. The Ministry appears to agree, Exhibit 5, and seeks to remedy the situation by a new selection. The grievor refuses to participate. The grievor testified that he'd had a flawed interview the year before and on the new interview the result was the same. Also, the grievor c 5 .i 4 felt he was placed in a disadvantage vis-a-vis Gulis because Gulis had been, by the time of the new interviews, on the job for some five months. Now it's 1988 and the grievor seeks~ a remedy. The Board can, and does, recognize and declare that by the process engaged in, in September 1985, the grievor was unfairly denied a promotion and the allegation in his grievance, then filed, was correct. Counsel for the grievor argues that this Board should award the position to the grievor with appropriate compensation. Counsel relies on two decisions: a decision of the Board in &Z Zuibrvcki (1981) 30 L.&C. 2d 206 (Prichard) and a private arbitration, Re Bank of Montreal and C.W.U, (1982) 6 L.A.C. (3d) 289 (Carter). .Both decisions are distinguishable. In & Zuibrvcki this Board bemoaned the fact that the employer there elected to call no evidence and concluded that it was "forced" to conclude from the griever's evidence that a case had been made out that the grievor had successfully established a claim to equality of ability. The Board, commenting on the failure to call evidence, noted: Through its conduct, the employer has restricted the range of appropriate remedies, eliminating the appropriateness of a re-run. (p. 217). " In Re Bank of Montreal, the Board noted that virtually no evidence of the successful candidate's qualifications was offered and concluded: . ..the union has established on the balance of probabilities that the ability, skill, and performance of the grievor was at least relatively equal to that of (the incumbent). In light of this conclusion and the griever's greater 5 I seniority, we find that the employer did breach the I collective agreement by not awarding the job to the grievor. In our case, far from persuading us that his qualifications were relatively equal at the time of the competition, we are satisfied of the reverse. We cannot award the job to the grievor. Counsel for the grievor argued that the Ministry's action of running a new competition was unilaterally ,deciding on a settlement of the grievance. We prefer to regard it as a bona fide attempt to set things aright when the Ministry recognized at I the second stage that the process was flawed. Despite his apprehensions the grievor could have participated in the second set of interviews and if dissatisfied with the new selection process he could have grieved that.. We think that, at this distance, given Gulis' experience in the job, and the failure of the grievor to further participate in the competition process it would be impractical and wrong to order the competition re-run. In the end we find that by the interview process conducted in September, 1985 the employer did breach the collective agreement. Some thought was given to compensation as an alternative remedy. However, although the grievor established a duty in the employer, and a breach! there was no evidence of actual damage suffered and we limit our award to the declaratory relief mentioned above. Dated at King&On this 26th day of ,September, 1988. I G. MilleY,’ Member