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HomeMy WebLinkAbout1985-1397.Barber.90-02-01i 1 ONT/\RIO EMPLOY&z DE LA CO”RONNE CROWN EMPLOYEES DE L’ONTARIO GRIEVANCE q q BOARD C$lMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS IN TEE HATTER OF AN ARBITRATION Under THE CROWN EI4PLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEHBNT BOARD Between: OPSEU. (R.E. Barber) Griever - and - Then Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: For the Grievor: For the Employer: Hearings: B.A. Rirkwood vice-chairperson S. Nicholson Member E. Orsini Member N. Belmore Counsel Gowling, Strathy & Render-son Barristers, & Solicitors M. Fleishman D. Lepofsky Counsel Ministry of the Attorney General December 7, 1988 March 0, 9, 1989 June 13, 20, 1989 August 29, 1989 October 12, 1989 Page2 DECISION A competition was held in 1983 for the position of Unit Supervisor,which is classified as a Correctional Officer 3, at the Guelph Correctional Centre. Three candidates were chosen for the position. The grievor, Mr. Barber, was one of three unsuccessful candidates who grieved the competition. Minutes of settlement were entered into by the parties which provided that the competition would be rerun with the original applicants including the successful applicants and each applicant would retain.the right to grieve either the process or the results of the rerun. On November 12, 1985, as a result of the Minutes of Settlement, the applicants were forwarded a copy of the original Opportunity Bulletin advertising the position and were invited to be interviewed on November 27 and 28, 1985. The candidates were interviewed and assessed. The successful candidates from the first competition, Sherree Cybulski, Richard Mroz and David Brunton were also the successful candidates in the 1985 competition. Mr. Barber, grieved the rerun of the competition. He claimed that as he had more experience as a Correctional Officer 2 and as a Unit Supervisor, Correctional Officer 3,' than the three successful candidates, that he was better qualified than the three successful candidates for the position of Unit Supervisor. The union's counsel submitted that the onus is on the employer to prove that the candidates that it had-selected were superior to the ,grievor. The union's counsel further submitted that there were many flaws in the process, which, if looked at individually were not significant; but if viewed cumulatively prevented an accurate assessment of Mr. Barber's skills. Page3 The Ministry's counsel claimed that the evaluations were carried out in .an appropriate and reasonable manner. The Ministry's counsel admitted that there,may have been some flaws in the process; however, the flaws were not so substantial as to create a miscarriage of justice, and that the incumbents were much better qualified than the grievor~. Accordingly, the Ministry's counsel submitted that the grievor was not entitled to the job. The three successful candidates were in attendance for the 'hearing. Each were given the opportunity to ask questions of the witnesses, to bring witnesses and to make submissions. Each one chose only to observe the proceedings as an affected party; however, each one was also called as a witness.. The parties agreed that this Board had jurisdiction to hear the matfer. TRR PROCESS The Opportunity Bulletin advertised the position of Unit Supervisor, in the classification of Correctional Officer 3 as follows: , . * . -to ensure the correctional control and care of inmates on an assigned shift and provide direction to subordinate correctional officers. To assist in the development and implementation of programs. Successful completion of correctional officers training course and satisfactory correctional experience. Good knowledge of Ministry and Institution's regulations and:procedures and programs. Supervisory ability. Ability to meet Ministry physical and medical standards. - Candidates on this competition may be short listed based upon pre-selection criteria such as job performance, experience, attendance and suitability. Page4 Qualified candidates are invited to submit applications to their Superintendents not later than August 23, 1983. Superintendents are asked to forward each application with an assessment and a copy of the latest appraisal not later than September 2, 1983 to:.~.. The selection panel was composed of Mr. O'Brien,' Regional Manager of Personnel for the Western Region, Ms. Janet Kennedy (Craig), Assistant Regional Personnel Administrator, and Mr. Thomas Bolton, the Deputy Superintendent of the Guelph Correctional Centre. The panelists established a method of evaluating the candidates which allocated points for various requirements and qualifications for the position. They used the following scoresheet: A. EXPERIENCE (up to 1983; Nov. 18) a) Years of Service in direct contact with inmates: One point for each year up to five years One half point for each additional year up to ten years /7.5 b) Correctional Centre Experience: one point for each year to a maximum of 3 points /3 cl D.C./Jail Experience: One point for each year to a maximum of 2 points /2 d) Related Experience Outside MCS. i.e. .Police, Psychiatric Nurse, Observation/Detention Home, etc.: One point for each year to a maximum of 2 poi!its e) Supervisory Experience: Acting on occasion = 1 point /l Permanent Acting 1-6 months = 2 points 12 6 months plus 2 points /2 = f) Supervisory Experience outside M.C.S. 2 points 12 B. k?QBK Page5 a) Attendance 0 - 3 days away 2 points 3 - 10 days away 1 point Other Extenuating Circumstances (if any): /2 /1 b) Appraisals: recommended for promotion 10 points .--average to above average up to 10 points --discipline noted 0 - 10 points /IO /lO /IO Comments: c. EDUCATION a) Related Dipioma: 2 points /2 b) Related Degree: 2 points Comments: /2 D. COMMUNICATION a) Vocabulary Concise. Articulate Appropriate tone and affect Maximum 3 points ORAL: /3 ‘b) WRITTEN: Grammatically correct Vocabulary Concise Maximum 3 points /3 Comments: E. KNOWLEDGE(Questions) TOTAL /80 /125 The panelists used the applications. and resumes to attribute points for experience and education, and the written skills, the personnel file for attendance scores, and the yearly appraisals for work performance. A questionnaire had been prepared to test the candidates' knowledge and was used in the interviews of the candidates. Page 6 The candidates were interviewed by the panel at forty minute intervals. The panel explained to each candidate that the purpose of the interview was to assess the candidate's knowledge of the job and of the institution through their responses to a questionnaire. The panel did not tell any of the candidates the number of questions to be asked nor the value to be given to each question. Each candidate was asked all questions on the questionnaire and each panelist scored the candidate on the responses given. The scores on the questionnaire were averaged to provide the final score on the candidate's knowledge. There was an arithmetical error in the total on the scoresheet. The highest possible total was 134.5 instead of 125 marked on the scoresheet. However, as there was no error in the addition of the applicants' scores, there was no change in their respective positions. The difference in the total effected the proportion attributed to personal suitability, which was reflected in Parts A to D inclusive, and to knowledge which was reflected in Part E. The effect was such that the responses to the questions were worth 59.4% of the total mark as opposed to 64% if the total were 125, and that personal suitability was worth 40.6 % of the total mark as opposed to 36%. There was no dispute that the overall criteria used by the panel was inappropriate for the job nor that the weighting of the factors was in error. However, the union submitted that the griever's scores on the criteria were wrong in that: .l) the griever should have received two points instead of no points for his experience in the army, as related outside experience; 2) he should have received two points instead of no Page I points for his experience in an acting supervisory position; 3) he should have received ten points instead of no points for being recommended for a promotion; 4) he should have.received three points instead of one ., point for his oral skills and and three points instead of one point for his written skills; and 5) he should have received six additional points for his responses to the questionnaire. The candidates involved in this hearing received the following scores : Candidate Personal Scores Given By Panelists Suitability O’Brien Bolton Craig Average Total Barber 21.5 26 32 29 29 50.5 Brunton 27 57.5 61.5 51 59 86 Cybulski 36 61.5 65.5 59 62 98 Mnx 36.5 61 64 59 61 97.5 Therefore, in numerical order the candidates scores are as follo"s: MS. Cybulski: 98; Mr. Mroz: 97.5; Mr. Brunton: 86; and Mr. Barber: 50.5 points. TBE ISSUES The role of the Board is to determine whether the employer breached article 4.3 of the collective agreemen.t, which sets out the prerequisites for filling a vacancy. Page8 Article 4.3 states: Article 4.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration. The Ministry has the right to establish the criteria, provided that the criteria reflect the requirements of the job. The onus is then on the union to establish that the grievor has the qualifications to do the job. Once established, the onus reverts to the Ministry to satisfy the board that it has properly assessed the qualifications of the candidates and that the qualifications of the successful candidates are demonstrably superior to the grievor (Zuibrycki G.S. B. # 100/79). The role of the Board is not limited to a consideration as to whether the employer acted honestly and reasonably, in assessing the candidates, as suggested by'the Ministry's counsel, but is to determine whether the Ministry's assessment was correct. In so doing, the board must consider whether the process used by the panelists accurately assessed the qualifications and abilities of the candidates. If the process is defective such that it prevents an accurate assessment of the candidates, as in Canadian Food and Allied Workers Union, Local 175 v. Great Atlantic and Pacific Company of Canada Limited et al. 1976 CCH Canadian Limited 332 p. 14056 , and as applied in OPSEU(Remark) and Ministry. of Revenue, K. Swinton, January 29, 1979, GSB # 149/77 the Board must examine the respective skills and qualifications of the candidates. As the competition which was held on November 1985 was a rerun of the competition of November 1983, the board must consider the information, questions, and skills and qualifications of the candidates as if it were 1983. Page 9 In the event that the board were to find that the candidates were as equally skilled as each other, the griever would be entitled to the job as his continuous service was much .greater than any of the other candidates. CONSIDERATION OF THE PROCESS The Opportunity Bulletin asked the interested parties to forward an application if they wished to be considered for the job. ,The griever submitted a one page letter outlining his qualifications. and his background. The other successful candidates forwarded a more complete summary of their respective backgrounds. The Board does not agree with the submission of the union's counsel that the Opportunity Bulletin created any prejudice to the grievor by suggesting that an application be forwarded as.opposed to a resume. Although the Opportunity Bulletin called for an application, and not a resume, there was no specific application form that was to be completed and therefore each candidate was responsible for the form and contents of his or her application. In a competition, the applicant must review the advertisement for the position, consider the qualifications which he or she may think is relevant to the job and set out their own qualifications and skills in the most complete manner as possible. In this case, the Opportunity Bulletin suggested that the cqndidates.might be short listed depending upon their job performance, experience, attendance and suitability. Therefore, if the applicant did not submit a full and complete description of his or her qualifications, the applicant may not get an opportunity to expand on any of the information given in an interview. icient The griever's letter of application provided suff information for the grievor to be given an interview. L (i’ Page10 The panel used the application and resumes to obtain background information on each applicant and to provide scores for the personal suitability of the applicant for the job and to assess the applicant's written abilities and to provide a score for his written communication skills. Miss Craig analyzed the grievor's application, while Mr. Bolton and Ms. Craig analyzed the other successful candidates. Mr. Barber testified that the one page letter that was submitted in evidence as his application was not complete and that there may have been two further pages. The union's counsel submitted that had the panel a more complete summary of his background that he would have been awarded more points. The union also submitted that the grievor was prejudiced as only Ms. Craig analyzed his application, whereas Ms. Craig and Mr. Bolton analyzed the successful applicants. We find that the letter that was introduced in evidence as the griever's application, formed his job application in its entirety. The letter which was submitted in evidence ended with Mr. Barber's signature and there was no vindication in his letter of any enclosure. In any event, although the griever's letter of application was used for the initial scoring of his background and written capabilities, the grievor provided additional information in his interview which was considered by the panel. Therefore, his interview afforded him the opportunity tp add to the information 1 provided in his letter. Different people may assess applications differently, but in this case, Ms. Craig was involved in the assessment both of the grievor and of the other applicants. In addition, as the Page11 background was canvassed before the panel, the panel had the opportunity to consider information which was not~ on the application. There was no evidence that Mr. Bolton's involvement in the assessment of the applications effected any of the other candidates' scores on personal suitability. As a result, the union's counsel was not able to show the board that the different persons assessing the applications resulted in a difference in the scoring nor that the interview failed to correct any deficiency. When the Board considers the panel's assessment of the qualifications, the Board does, however, find some errors. The ,Board finds that the panel did err when assessing Mr. Barber's supervisory background. The panel gave Ms. Cybulski a point for her experience as a management trainee in a store for a four month period and Mr. Brunton two points for his experience supervising nine staff members of a day-care centre. At the interview, the panel learned that the grievor had,experience as a sarqeant.in the army and as a foreman supervising 17 men, but the panel failed to give him any credit for this experience. We cannot accept the Ministry's argument that the grievor should not be given any points as the experience was stale-dated, as there was no limitation contemplated on the score sheet, except by the outside date of November 1983, and further supervisory experience is relevant to the job. Although there was no evidence which supports a finding that this experience is related to the job as a Correctional Officer 3, ,by its very nature, it would have been supervisory in nature and therefore the qrievor should have been credited for this experience. The qrievor received one point for. "acting on occasion" as a supervisor, but did not get any points for "permanent acting" supervisory experience within the organization. He admitted that I ,, Page12 he did not receive secondments as a Correctional Officer 3, that were six months in duration, as set out in the scoresheet, but that he received secondments which were for periods 'of six weeks, as well as many which were for a few days and he spent another nine months going from unit to unit. In his view, his experience was comparable to a permanent acting position. The purpose of Part A (e) of the scoresheet was to distinguish the different supervisory experience which an officer obtains when an officer remains at one position for a short period of time in an acting position, as opposed to the experience that the officer would gain if he were to remain in that position for an extended period of time. While the cutoff point -for going from acting to permanent acting position will always be arbitrary, Mr. Bolton testified that eight days at a posting gave an officer a different experience, from the experience which an officer would gain from a series of short acting assignments. Therefore, although the griever's experience did not fit 'the box created by the questionnaire, the experience which the qrievor had, exceeded the eight day placements.which Mr.Bolton suggested created a different experience. Therefore, when considering the nature of the skills which Mr. Bolton was looking for, Mr. Barber should have been attributed some points for his experience in an. acting position, as he acted as a Correctional Officer 3 for many' extended periods of time. An applicant could receive up to ten points for an average to above average performance and an additional ten points if he or she had been recommended for a promotion.. An applicant could lose up to ten points for any discipline; however, none of the candidates before the board had been disciplined. The qrievor only~ received eight out of ten points for an above average performance. 'The grievor claimed that he should have also received ten points for a recommendation for promotion. Page 13 The panel asked for and received supervisors' reports. They considered the reports, but as Mr. O'Brien testified, they did not use them, as they found them, not relevant, highly subjective, extremely brief, and inconsistent; nor did the panel speak to the supervisors to clarify their respective reports. Instead, the panel used the attendance records, the discipline records ,and the last yearly appraisal? from the personnel files. The supervisor's reports were not presented to the board and therefore we were unable to assess their content. However, as in Bullen G.S.B. ++113/82 (J.W. Samuels), although the employer may establish the selection criteria, based upon the' job specifications, there is an obligation on the employer to ensure that all the relevant information is before him. As stated by Mr. Samuels in his award: Then the selection procedure must be arranged in such a way that adequate information generated to make a reasonable assessment of the qualifications and ability of the candidates in light of these selection criteria. This Board has dealt at length with this matter in a number of cases. As a basic requirement of an adequate selection process, it has been made absolutely clear that the candidates' supervisors ought to be consulted, because the works record is critical with respect to internal candidates - -- see Q&& 9/78;Hoffman, 22179; and w, 126/79. The supervisor has had the opportunity to watch the candidate and is in an excellent position to comment on the applicant's skills and abilities. The supervisor may not be able to comment on' all the candidates, nor on their qualifications in a relative sense . He may also not have the perspective to view all the candidates aria assess the job specifications and the qualifications, but his assessment is an important factor which should be taken into account. Therefore, while we agree that if the supervisors reports were inconsistent and very subjective that they could have little or no Page14 weight without prejudicing a candidate, that weakness could have been ameliorated, or put into perspective, by speaking to the respective supervisors. Therefore, it was incumbent for the employer, to contact the relevant people for any information that may be lacking; As the supervisors' reports were not used nor were they contacted, there was a serious flaw in the process; however, on the facts before us, the flaw was not one. which vitiates the competition. The evidence does not lead the board to find that the outcome of the competition would have been different had the flaw been corrected. If the panel had contacted Mr. Heater, the panel would have been able to receive his comments on the grievor, Ms. Cybulski and Mr. Mroz. Mr. Heater, was an OM-15, who supervised all the units at the time of the competition. He had prepared appraisals on approximately twelve to' fifteen of the candidates including the grievor. He had almost daily contact with the grievor when Mr. .Barber was working in an Correctional Officer 3 position and as an Correctional Officer 2. Mr. Heater had similar opportunities to see Ms. Cybulski and Mr.~Mroz carry out thei,r duties. Mr. Heater testified that he found that the grievor always carried out his duties in an efficient manner, was well versed in the institution's procedures, had good control over the inmates and was vigilant when carrying out his duties. He testified that he stated verbally to the Superintendent that the grievor's work performance wasabove average. and that he would be an asset to the institution. He testified that he made these comments verbally with the Superintendent and in his appraisals. Mr. Heater testified that his appraisal of the grievor, reflected a recommendation for promotion, but we do not find that it does. The 1982 appraisal verifies that he was a reliable officer who carried out his duties with a minimum of supervision, that he had a good working relationship with his peers and with his supervisors. It also indicates that he handled inmates firmly Page15 and fairly and was capable of handling problems that arose, on his own initiative. He was rated in the "B" range in most areas by all supervisory staff. His subsequent appraisal of February 15, 1983, which would cover part of the year in issue .is similar, but included the willingness to achieve work goals, an ability to work at any duty, and an ability to work well under stress. The appraisals combined show a development in the officer, but not that he was recommended for a promotion. Mr. Heater stated that his appraisal of Ms. Cybulski, dated April 20, 1983 set out his observations and conclusions. He mentioned that she was a very capable officer as seen through her work performance, she had a mature working concept which gained her respect of the fellow staff and Unit Supervisors, that she had a sound knowledge of the institutions procedures and cant be depended upon in emergencies, that she had leadership qualities,and that she maintained effective control over the inmates without being overly aggressive, In his appraisal of Ms. Cybulski he clearly recommended her for a 'promotion by stating that "she has the capability and would be an asset as a Unit Supervisor". Mr. Heater's comments on Mr. Mroz were very comparable to those of the grievor's. He found that he was very efficient, that he had excellent knowledge of the institutions procedures and was capable in emergencies. Initially Mr. Heater found that Mr. Mroz was too rigid with the inmates, but that he overcame that weakness and was an effective Unit Supervisor. Mr. Heater did comment on Mr.. Brunton's capabilities, but admitted that he was not involved with him in the same manner as with the other candidates,' as he worked in GATU, an autonomous section of the prison which serves the interests of those prisoners who are mentally disturbed. He mentioned an negative incident involving the improper method of distribution of medication. However, we accept Mr. Brunton's testimony that he Page 16 was not involved in the incident ment~ioned by Mr. Heater, as' he did not receive any discipline. We find 'that both Mr. Heater and Mr. Brunton were credible witnesses, but there was no documentation to support Mr. Heater's allegation. In a relative.sense, Mr. Heater considered.all the candidates to be relatively equal. However, the appraisals which he did, did not support a recommendation for promotion for all the candidates. The union's counsel submitted that the process was flawed in that the panel failed to look at the complete personnel files Of the applicants. The Board finds that the panel did fail to review the pe.rsonnel files in their entirety. The attendance records, the discipline records and the appraisals, which the panel used may be the key items in a personnel file; but, frequently a personnel file will contain other information which is relevant to the applicant's ability. In this case, the grievor had been praised for his involvement in the 1974 and 1979 riots and similarly, Mr. Mroz had also received praise for his role in arresting an escaping prisoner in 1979 and for saving a prisoner from death by suicide, in 1980. Such letters go directly to a Correctional Officer's ability to deal with various situations in a 'prison and should have been considered. The union's counsel, submitted that the Ministry~ used the wrong yearly assessments as the dates of the assessments were beyond the August 1983 date for the submission of information. a We find that as with the, supervisor's reports the annual appraisals of an applicant's performance for the preceding year, is a relevant consideration in assessing the skills and qualifications of the candidates. They should have been used. A Page17 difficulty arises as each appraisal was done at a different time, and therefore the period covered is not the same with each employee. Mr. Barber's appraisal was dated February 15, 1983, MS. Cybulski's was dated April 20, 1983, Mr. Brunton's, November 11, 1982 and Mr. Mroz's, November 7,~1983. I Mr. Mroz's 1983 appraisal was clearly beyond the date of the competition; Mr. Mroz's earlier appraisal was not before the panel nor the board. If Mr.~ Mroz's 1982 appraisal had been used, it would not have reflected his abilities for most of the year preceding the competition. There is merit in considering an appraisal that may be dated after the competition if it evaluate's the officer for the relevant time period and is reflective of the pertinent time period and not beyond; however, if subsequent appraisals are to be used, they should be reviewed for all the candidates in the same manner. The use of appraisals covering the relevant period of time provide information that is analogous to the information that could be received by speaking to a supervisor to update the appraisals. The next question to be answered, is what information can be gained from the appraisals. Although the griever claimed that his March '1983 appraisal was based upon his work in the Tower as a Correctional Officer 3, we do not find that there is any evidence to support his contention. The griever had not acted as a Correctional Officer for the year, but was only seconded to that position for varying periods of time. As he was a Correctional Officer 2, and the appraisal is a consideration of his work over the year, we do not find that it was a recommendation that he be promoted to a Correctional Officer 3 position. We do find however, that his appraisal indicated that he performed above the standards of an average officer.. Page 18 The griever testified that Mr. Leprich, his shift supervisor, who had made hi5 1983 appraisal, had frequently encouraged him to apply for a Correctional Officer 3 position. The board cannot find that Mr. Leprich's suggestion to the grievor can be considered a recommendation for promotion; a recommendation for promotion must be a recommendation made by those'in authority to those who have the ability to give a promotion. All the evidence in support of Mr. Barber's performance indicated that Mr. Barber was an above average officer, but there was no documentation that to support a finding that he was recommended for a promotion. The union's counsel submitted that the successful candidate, Mr. Brunton was wrongly credited with eight points for a recommendation for promotion. Mr. Brunton's assessment dated November 11, 1982 stated the " If Mr. Brunton continues to improve as he has in the past he will certainly have the potential for future improvement." This statement. cannot be construed as recommending promotion as it is based on contingencies which were not resolved by the time of the next assessment. Furthermore, even if we were to consider the subsequent appraisal as. reflective of the~preceding year, his assessment of December 22, 1983 made no further mention of the possibility for promotion. Therefore, we agree with the union's submission that Mr. Brunton was. wrongly attributed eight points for a recommendation for promotion. On the other hand, Mr. Brunton was not awarded any points for his performance. He was however part of the Crisis intervention 1 Unit, showed leadership qualities when chosen as a Team Leader, was one of four people throughout the province, who wars asked to participate in 1980 for the Advanced Correctional Studies, which dealt with problem inmates. Furthermore, after considering Mr. Heater's 'comments and the letters of praise which he received, we ‘f Page 19 conclude that his performance was also above average and therefore he should have received credits in this area, which he did not. Therefore, although an error was made in the classification of his talents, we do not find that Mr. Brunton's overall score on his performance would vary a great deal as it was the information.was wrongly classified. The union submitted that Mr. Barber improperly was denied full points on his written and oral communication skills. The information which Mr. Barber provided in his letter of application was too brief after considering his testimony on his background, and briefer than those of the successful applicants. However, an application is not necessarily representative of the ability to write the reports that were necessary .for the job. If the panel had spoken to Mr.-Heater, they would have learned that Mr. Barber was experienced in writing reports and was competent to do so. Therefore, we find that the grievor should have received a greater credit in this area. .With respect to the griever's oral skills we find that he was articulate, concise, and that from Mr. Heater's evidence used the appropriate tone. Further evidence of this is that he had very good control of the inmates. We do accept, however the comment by the panel on his scoresheet that he was "too concise." and that "he doesn't listen to questions". We are loathe to second guess management, and there is no evidence to'suggest the contrary. Therefore, the panel made some errors in the process which they used to assess the applicants on their personal suitability, by failing to speak to the applicants' supervisors and by not reviewing the whole personnel file. Page 20 The next area to be considered is the interview and the scoring of the questionnaire. The union's counsel suggested that the questionnaire did not accurately reflect the job as there were insufficient questions on posting, layout and security of the institution. Furthermore, he submitted that the questionnaire did not deal with the development and implementation of union programs, which according to the job specification represented 20% of the duties. He submitted that the process that was followed was also defective, as the grievor was unaware of the numbers'of questions to be asked and the value to be given to their responses. When considering the role of the Correctional Officer 3 as set out in the job standards, we find that the questionnaire reflects many of the facets and the information which a correctional officer may'be called upon to use in the exercise of his job. The questions given were of a general nature, and most related to the Manual of Standards and Procedures, which is universal to the Ministry. There were three questions that related to standing orders, which would be particular to the Guelph Correctional Centre. The questions were directed to the qualifications sought on the Job Specification, which required a "working knowledge of relevant legislation, policy, and procedures," Although ideally, a questionnaire should cover all aspects of the job, the construction of a questionnaire is not a pure science, but must be a reasonable reflection of information or skills and abilities that relate to the job. As the foundation of the job requires a working knowledge of the institution and its policies, we do not find that it was unreasonable nor unfair to assess general knowledge. Similarly, it is not unreasonable to base the questions on general knowledge as opposed to the particulars relating to the layout and the, procedures in the institution itself. Therefore, we find that the questions were proper. While it may or may not be helpful to know the value of scores to be awarded to various answers to be given, we do not see why the failure to provide this information creates a defect which strikes at the validity of this form of testing. In this case, all the applicants were treated in the, same manner. None of the applicants were told of the numbers of the questions, nor oft the values to be given to the answers. This situation is not as in the case of Re Eastern Provincial Airways (1963) Ltd. and Canadian Airline Employees' Association 24 L.A.C. (2d) 71 (Christie), in which the test given to the applicant was found not to be appropriate, and the applicant never understood what was expected of him in terms of comprehension, speaking ability or the speed at which he had to respond. In this .case the panel clarified any question which an applicant may have had, and gave the grievor the full opportunity to respond. Each applicant, including the grievor, testified that he or she answered the questions as fully as possible. The grievor testified that he had answered all the questions as fully as possible and that he believed that he had a good interview. He did ask for clarification of one of the. questions and received clarification. Although he stated that had he known the relative worth of the questions that he would have answered some more fully. He admitted that he was not prevented from comp,leting any answers and that he was given the opportunity to say more if he wished. The grievor knew that he was in a competition and it was incumbent upon his to provide as complete answer as he was able to do. The difficulty that the grievor found himself in, is that he relied on his experience as a an Acting Correctional Officer 3, to provide him with the ability to answer the questions. Page22 The successful candidates however, had taken a different approach prior to the interview and had, in addition to relying on their experience, spent considerable time formally studying the manuals, and asking questions which gave them a greater breadth of knowledge. Ms. Cybulski started preparing for the competition about one year in advance of the posting. Not only did she try to get as much experience as possible, she reviewed the manuals, applicable legislation, and all policy directives. Mr. Mroz also began his preparation in advance, asking questions and reading manuals, and legislation. Mr. Mroz was also able to rely on his experience, as he spent one-half of his time in 1982 and 1983 as Acting CO3 ,on the cellblock and at the ~dormitories. Mr. Brunton prepared for the questions extensively, by formally studying the materials, talking to other Correctional Officers, and reviewing his incorrect answers from an earlier time when he had unsuccessfully applied for the Correc$ional Officer 3 position. As a result of this formal preparation, when the other candidates were questioned, they were not limited to providing answers based upon their own experiences, as was the grievor, and each of them was able to provide more complete answers to the. questions asked than the grievor. In reviewing the answers given by the candidates, it was apparent that their 'answers were more fully developed and included more facts. In reviewing the grievor's answers to the questions asked we find that a couple of his answers could possibly gained him a couple of,points, but the gains are not.such as to place him in contention with the other successful candidates. SUMMARY The union has been able to show that the grievor had the skills and abilities to perform the job of a Unit Supervisor, Correctional Officer 3, and therefore the issue is whether the employer has been able to show that the successful candidates are demonstrably superior to the grievor. In ,this competition, the grievor Scored substantially lower than the successful candidates. Although we find that there are areas where we would have given the grievor more points on his score sheet, after consideration .of the scoring of the other candidates, we do not find that the griever's scores as adjusted are such as to support a finding that he is as capable as these Other candidates. Notwithstanding the errors which the panel made in assessing the information we find after considering all the evidence before us that there would only be a small improvement to the griever's score on his personal suitability. Mr. Brunton should not have KeCeiVed eight points for a recommendation for promotion, but he was not given any points for his ability, which was clearly above average, and therefore'there would be very little difference, if any, in their relative positions. The major difference in points between the candidates arose as a result of their responses to the questionnaire. The questionnaire was proper but the grievor failed to provide sufficient information in response to the questions asked. After considering his responses, the net affect of any of any point that he should have received would not have changed the,outcome of the competition. After hearing all the evidence and reviewing all the exhibits, 1 there was no doubt that Mr. Barber was a capable officer and one who was able to do the job of a Correctional Officer. 3. He had acted in that capacity on many occasions and more frequently than the other candidates, which is evidence of his capability. His supervisors recognized that he was a capable officer. Mr. Heater, found that MK. Barber was an efficient officer, very knowledgeable ,on procedures, very capable in emergency situations, had good - Page24 leadership qualities, and was above average in maintaining control over the inmates. His experience as a Correctional Officer 3 gave him experience knowing the layout of the institution and of the procedures. The panelists also considered that he was capable. However, the test is not whether the grievor is capable of doing the job, but whether the successful candidates are more capable and better qualified than the grievor to do the job. In reviewing the qualifications and the experience of the successful officers we do not. find that the panel erred in ascertaining that they were better qualified than the grievor. The grievor, although capable, had the misfortune to .be fin a competition with a pool of highly qualified candidates. In another circumstance, with other candidates in the pool, he might very well have been a successful candidate. Accordingly, the grievance must fail. Dated at Toronto, this 1st day of February IWO. HI Ai-Kirkwood, Vicechairperson Dissent as attached S. Nicholson,'. Member Nominee 4’ b .;. IN THE MATTER OF AN ARBITRATION BETWEEN: THE CROWN IN RIGHT OF ONTARIO (Ministry of Correctional Services) Employer AND ONTARIO PUBLIC SERVICES EMPLOYEES UNION Union AND IN THE MATTER OF THE GRIEVANCE OF RON BARBER DISSENT I have read the award of the majority, and find I must dissent from its finding that the grievor was not at least as qualified,and able as each of the other candidates. I would have awarded the job to the grievor, because in my opinion, he met the test set out in the collective agreement: . i.e., considering that he was relatively equal in qualifications and ability, his greater seniority should have resulted in being one of the successful candidates, I do agree with the finding of this'Board, that there were flaws in the competition process. I further agree that those flaws as outlined in the Award, were numerous and significant, and that the results of that flawed process had to be set aside, and that this Board had to make a determination of the griever's qualifications and ability to do'the C03.job compared to the other three candidates. The uncontradicted evidence of the two management witnesses called on behalf of the grievor was that Mr. Barber was at least equal to the others in his qualifications and ability - and that assessment was the result of their knowledge of Mr. Barber as both a CO2 and a CO3 (acting). No other supervisors were called in defense of the Employer's position, other than those. who participated in the Panel, to indicate a contrary assessment of Mr. Barber's qualifications and ability. And it must be noted that this latter testimony was not from Mr. Barber's direct supervisors who had personal knowledge of his qualifications and ability, but was from "management" personnel who knew him through this particular interview process. In light of the very significant omission by the Panel in not utilizing input from Supervisors in coming to their decision, then this Board should have listened very closely to Mr. Heater and Mr. Ferguson, and should have given great weight to their assessments. The Award sets out the myriad of areas of defects in the process, and I won't repeat them here. However, the Union argued that, by properly assessing the candidates, with all the information available being fairly and properly considered, Mr. Brunton's score~dropped to 76, and Mr. Barber's score rose to 74.5. Therefore,' even if we give credibility to the format of the questionnaire, the interview, and the suitability score-sheet, then Mr. Barber can be seen to be relatively equal to Mr. Brunton: Had the format and the panellists been assessing and scoring fairly and properly at the time of the Competition, then perhaps the results would have been even more obviously in favour of Mr. Barber. We cannot re-format the competition, but we can judge the information given to us at the hearing. The majority suggest, on page 19, that "we are loathe to second-guess management", with reference to whether or not Mr. Barber was too concise at the interview, and whether or not he listened to questions. I disagree with that comment, and I think that our job as a Board of Arbitration is to do precisely that - we listen to what Management I 3 has to say about the issues, and we listen to what the grievor and the Union haves to say, and we V1second-guess" the findings of Management to either overturn those findings or confirm them. We, as a Board, did find that the decisions and assessments made by the Management Panel were based on inaccurate, inconsistent, and insufficient information. Therefore, in my opinion, this Board should have gone the extra step of fairly, completely and consistently assessing the relativity of the candidates, and, based on the.evidence led on behalf of Mr. Barber, should have found that he was equal, or superior, to the others. Based on those findings, I would have granted the grievance. DATED AT Toronto, Ontario, this (5%~ of January, 1990. Sandra Nicholson Union Member