GSB# 2005-3008
UNION# 05-23
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees - Local 1750 (Pepin)
Union
- and -
The Crown in Right of Ontario (Workplace Safety and Insurance Board)
Employer
BEFORE
Daniel Harris
Vice-Chair
FOR THE UNION
Ian Thompson National Staff Representative Canadian Union of Public Employees
FOR THE EMPLOYER
Mr. Gurjit Brar Counsel Workplace Safety and Insurance Board
HEARING
October 24, 2006 and April 26, 2007.
Decision
The Proceedings
This is a job-posting grievance. The grievor, Monique Pepin, was denied an interview for the permanent, bilingual position of Claims Investigator with the WSIB Timmins office. She was told that she did not meet the minimum requirements. By way of remedy, the Union asks that she be retested, and, if successful, be granted the position.
The Facts
The general factual background is set out in correspondence to the grievor dated January 6, 2006, as follows:
We agreed, following discussion, that there is a difference of opinion regarding the communication of your status in the first competition for a temporary bilingual Claims Investigator position in 2004. You maintain you were told that you were a Preliminary Candidate in the competition and entitled to an interview. The hiring manager, Denis Pilon, maintains that he explained you were not a Preliminary Candidate, but that he was prepared to interview you and the other applicants as there were no qualified internal candidates and this was a temporary position. His only option would have been to post externally. His decision was supported by CUPE. Regardless of what was said or heard, the end result was that you were interviewed for the position, but did not meet the bar to be eligible as a qualified candidate. (Copies of the interview records have been sent to your union representative as requested.)
You explained that during a post-interview discussion with the hiring party, emphasis was placed on acquiring adjudication experience, and attending courses for investigation skills was discouraged. Denis Pilon concurs that he stressed gaining adjudication experience, however, denies discouraging you from taking investigation courses. I accept Denis' statement; however I also accept the possibility that you may have heard a different message. This is something we cannot resolve one way or the other.
You subsequently spent time improving your adjudication knowledge through on-line learning modules, and job shadowing with a claims adjudicator. Monique, I really commend your efforts to improve your adjudication skills and the time investment you have made to better position yourself for career advancement. Your dedication to the WSIB and commitment to continuous learning is evident, and I sincerely compliment you on the actions you have taken.
You also spent two weeks with a claims investigator, and participated in some interviews gathering information required to complete an investigation report. Your enthusiasm and insight into what enquiries were necessary was noted by the investigator who worked with you during this time. Again, you demonstrated your continuing desire to move into a more challenging position that would meet your desire to grow within the organization.
When the permanent claims investigator position was posted in January, 2005 you submitted your application, including the many things you had done since the previous posting. Your application was turned down on the basis that you had not demonstrated that you met the adjudication (level 3) or investigation (level 5) skill requirements. Following a discussion with the hiring manager where you provided some additional information, he acknowledged that you might have the required competency in adjudication skills, but still did not demonstrate a level 5 competency in investigations skills.
I reviewed your application for the claims investigator position. A level 5 investigation skill would be demonstrated through experience and knowledge in multiple complex cases, and where adaptation or adjustment is required for application in unusual or difficult situations. Under "investigations" your application references:
◼ the two week period of job shadowing with some statement taking of witnesses;
◼ reading internal investigation process documents;
◼ participation in the Connections Committee;
◼ completing an on-line laptop security course;
◼ participating in a Regulatory Services presentation; and
◼ experience dealing with a difficult personal situation to illustrate your diplomacy, listening skills, and adaptability to difficult situations.
In my opinion, your application does not support that you meet the investigation skills requirement. I agree with the hiring party's decision not to accept you as a Preliminary Candidate. Your grievance on this issue is therefore denied.
As is evident from the foregoing, there are two areas of contention between the grievor and Mr. Pilon, the Manager who ran the two competitions for the Claims Investigator position. First, the grievor says that she was contacted by Mr. Pilon by telephone following the closing of the first posting and was told she would be interviewed and given a chance to do the written test. She was unequivocal that she was not told that she was not a preliminary candidate. Her evidence on that point is unchallenged. The evidence of Mr. Pilon was that he did not consult the Union regarding his decision to interview candidates for the first posting. He did consult the Union about his inclination to post it as a unilingual position. That was opposed and it was not so posted. Second, the grievor was also unequivocal that she and Mr. Pilon met to discuss her unsuccessful results of the first posting. At that time, she asked if she should take a specific investigation course offered locally. Mr. Pilon told her it would be a waste of time and money because she would learn on the job. She was told to concentrate on taking adjudication courses, which she evidently did. Mr. Pilon had very little specific recollection of that meeting. He gave evidence of what he generally seeks to accomplish at such meetings. He did recall that the emphasis would have been on adjudication skills. He had no specific recollection of the discussions regarding the investigations course.
The Submissions of the Parties
The Union submitted that the grievor met the job description requirement of a level 5 Claims Investigator by virtue of her past work experience and training. That was evident by virtue of her having been screened into the interview/written component process of the temporary position posting. In the alternative, the employer is estopped from denying her an opportunity to be interviewed and complete the written component of the permanent position posting by its behaviour in allowing her to believe she was a preliminary candidate on the temporary posting, and thereby foregoing any challenge of its decision. She also relied on Mr. Pilon’s statements to her detriment in not pursuing the investigator’s course. The Union relied upon the following authorities:
Pacific Press Ltd. and Vancouver-New Westminister Newspaper Guild, Local 115 (1987), 1987 CanLII 8780 (BC LA), 31 L.A.C. (3d) 411 (Munroe); Ontario (Ministry of Attorney General) and A.L.O.C. (2006), 2006 CanLII 93268 (ON LA), 151 L.A.C. (4th) 409 (R. Brown); O.P.S.E.U. v. Ontario (Ministry of Community and Social Services) (1995), 1995 CanLII 10660 (ON CTGD), 27 O.R. (3d) 135 (Ont. Div. Ct.).
The Employer submitted that the grievor did not meet the minimum requirements for the permanent posting and had not been considered a preliminary candidate for the prior, temporary position. The Employer reviewed the grievor’s experience including the job shadowing and her deficiencies in meeting the level 5 investigation skills. The Employer relied upon the following authorities: Vaughan (City) v. C.U.P.E. Local 905, [2006] O.L.A.A. No. 334 (Luborsky); Toronto v. Toronto Civic Employees’ Union, Local 416, [2005] O.L.A.A. No. 558 (Starkman); Brown and Beatty, Canadian Labour Arbitration 2:2210.
Reasons for Decision
This case engages portions of article 5.02 of the collective agreement:
5.02 Recruitment and Selection
Assessment of Applications
After the posting closes, all applications will be reviewed to determine whether the applicant has met the established minimum requirements. This will include a systematic review of each applicant's knowledge, skills and experience gained through WSIB employment.
The results of the assessment will be communicated to each applicant prior to the beginning of the selection process.
(b) Selection
Applicants who meet the established minimum requirements will be eligible to be included in the selection process and are placed on a list of Preliminary Candidates.
At a minimum, the hiring party must assess the most senior candidate. Additional Preliminary Candidates to be assessed will be chosen on the basis of greatest seniority. The hiring party may assess as many Preliminary Candidates as required, however, all preliminary candidates need not be assessed.
Preliminary Candidates will be graded on their combined score on one or more selection tools. Preliminary Candidates who meet the established threshold will be identified as qualified for the vacant position.
All applicants will be notified in writing of their status.
List of Qualified Candidates
The employer will maintain a list of Qualified Candidates, in order of seniority, for each position posted. Candidates must indicate their interest in each subsequent posting. Qualification will remain valid for 24 months from date of posting.
The selection processes before me were run all too casually. For example, Mr. Pilon testified that he reviewed that templating process and the applications with a human resources business partner but did not review with that partner his conclusions as to the status of the applicants. the grievor was not notified in writing of her status on the first, temporary, posting. Mr. Pilon said that his post process interviews are intended to address generalities. Such an approach does not provide the specific direction that career development requires. It also accounts for the fact that he has no specific recollections of the meeting held with the grievor. A further example of the lack of rigour is evident from an email sent by Mr. Pilon to the grievor on March 24, 2005 recounting their discussions of why she was screened out of the second competition:
To summarize, I initially did not consider you to be a Preliminary Candidate on the basis that you did not meet two of the minimum requirements for the investigator position, Adjudication/Judgement (minimum level 3) and Investigation (minimum level 5).
having met the minimum requirements on a job posting is demonstrated through the competencies listed for an applicant's current or previous position(s) at WSIB
if a specific competency is not included in the applicant's current or previous position(s) at WSIB, the applicant may provide evidence of having met the minimum requirement through external employment, outside activities or training/education
the determination as to whether an applicant has demonstrated having met the minimum requirement for a specific competency, is largely subjective on the part of the hiring party and dependent to some degree on what the hiring party is willing to accept as evidence of having demonstrating that competency
With respect to the Adjudication/Judgement competency, in my opinion, the information in your application did not demonstrate that you had met the minimum requirement. During our initial discussion on March 15, 2005 you informed me you had recently been accepted as a preliminary candidate for a claims adjudicator posting with the same minimum requirement (level 3) in that competent and you questioned why it was accepted in the claims adjudicator competition but not accepted for the claims investigator competition.
As mentioned above, the determination is largely subjective. I am still of the opinion that the evidence you provided on your application does not meet the minimum requirements. However, since it is a subjective analysis, and on the basis that you were recently accepted as meeting the minimum requirement for the Adjudication/Judgement competency for the claims adjudicator posting, I might have conceded that you meet the minimum requirement for this competency.
On the whole, I prefer the evidence of the grievor where it differs with that of Mr. Pilon. She was deeply invested in these competitions. She is a senior employee who has taken every opportunity open to her to advance her career with the Employer. It is more likely than not that at the debriefing meeting following the first posting she did ask Mr. Pilon about the investigator’s course and that he dismissed it. Instead he directed her towards adjudication courses. That meeting was a matter of great importance to her. To him, it was part of a general routine he followed after every competition. He made certain statements at that meeting that the grievor relied upon to her detriment. As a result of their interactions it was manifestly unfair and unreasonable to deny her an opportunity to fully participate in the permanent posting process.
Even after the grievor had taken the adjudication courses and been accepted as a preliminary candidate for a claims adjudicator position, he persisted as late as March 24, 2005 in denigrating her achievements. The WSIB guidelines he cited say that the determination of whether an applicant has net the minimum requirement of a competency is largely subjective. That is to say, the person making the determination is exercising a discretion. Discretion is not a license to ignore the facts.
More importantly, the parties to this collective agreement have fashioned a process pursuant to article 5.02 whereby a decision that an applicant meets the established minimum requirements places them on a list of “Preliminary Candidates”. I find that Mr. Pilon’s telephone advice to the grievor that she would be interviewed and permitted to complete the written portion of the temporary posting was advice to her that she met the minimum requirements of the position. Accordingly she was, and is, a Preliminary Candidate for the Claims Investigator position. I make this finding in the context that Mr. Pilon was asked in his examination in chief what actions he took after determining that none of the applicants met the minimum requirements of the position. He said, “I contacted each candidate to tell them they didn’t meet the minimum requirement but I would provide materials to permit them to participate.” The Union properly objected to this evidence and I reject it because it had not been put to the grievor, contrary to the rule in Browne and Dunn. The grievor had been passed on this critical point. In any event, I would have rejected Mr. Pilon’s newfound certainty because it is at odds with the lack of rigour demonstrated in his other actions involved with these competitions. I still would have preferred the grievor’s evidence. She gave her evidence clearly and without fear or favour. She was very credible and thorough.
In all of these rather unique circumstances, the grievor ought to have been assessed for the permanent position. I order that she now be assessed for that position under that competition. At this stage, I would recommend that Mr. Pilon not be involved in that assessment. I remain seised to deal with any matters relating to the implementation of this decision.
Dated at Toronto this 18th day of June, 2007