P/0096/98
IN THE MATTER OF AN ARBITRATION
Under
THE PUBLIC SERVICE ACT
Before
THE PUBLIC SERVICE GRIEVANCE BOARD
BETWEEN
William McQueen
Grievor
- and -
The Crown in Right of Ontario (Ministry of the Solicitor General and Correctional Services)
Employer
BEFORE
John A. Willes, Q.C.
Panel Chair
FOR THE GRIEVOR
William McQueen
FOR THE EMPLOYER
Christopher Jodhan Counsel, Legal Services Branch Management Board Secretariat
HEARING
April 22, 1999 (Ottawa)
Decision
The Grievor, William McQueen, is employed with the Ministry of the Solicitor General and Correctional Services at the Ottawa-Carleton Detention Centre as an Operational Manager, O.M.16. In 1998, the Grievor entered Job Competition #SGCS - 3019-98 for the position of Deputy Superintendent, Operations, at the Ottawa-Carleton Detention Centre. The Grievor was an unsuccessful candidate, and filed a grievance within the Ministry that reads in part as follows:
“I am aggrieved in that I was excluded from a competition for the position of Deputy Superintendent (Operations) at the Ottawa Detention Centre, a position for which I am qualified by virtue of my skills, experience and length of service.
I am alleging that a temporary assignment as Acting/Deputy Superintendent in the position in question, arbitrarily awarded to O.M. 16 Ron Jeakins while the position was vacant, and which exceeded fifteen months in duration, constituted preferential treatment, provided that candidate with an unfair advantage in the competition process, and that the acting assignment experience was then used as an instrument to deny me an opportunity to interview for the position which was subsequently awarded to Mr. Jeakins.
I am further alleging that the decision to deny me an opportunity to compete for the position was discriminatory, the improper exercise of discretionary power, and a violation of the minimum standards of administrative justice as provided for in the Ministry's Equal Opportunity Policy and Human Resources guidelines.
I am requesting full disclosure of any and all documents relating to the decision to extend the Acting assignment of this position beyond the normal six month period, including but not limited to, any M.B.s. clearance numbers and any requests or documentation which the Ministry may have in it's possession or under it's control which relate to this matter.”
W. McQueen
Operational Manager,
Ottawa Carleton Detention Centre.
The Grievance was denied, and the matter came on for hearing before the Public Service Grievance Board on April 22, 1999, at Ottawa, Ontario.
At the outset of the hearing, the Employer raised a preliminary objection as to the jurisdiction of this Board to hear the grievance on the basis that the Employer has the right to determine the criteria for the position, and to evaluate the criteria for the position as well. Counsel for the Employer submitted that the Employer knows the operation, and the qualifications that a person must possess to best perform the work.
In support of his objection, Counsel for the Employer cited: Adele Scott Anthony and The Crown In Right of Ontario (Ministry of Community and Social Services) P.S.G.B. P/0022/94, and W. Brander and The Crown in Right of Ontario P.S.G.B. P/0006/92.
The Grievor submitted that the selection process for the position was flawed, in that the successful candidate for the position had been working in the position for a lengthy period of time, and his (the Grievor's) request for the opportunity to fill the position on a rotational basis had been denied. He stated that the denial of the opportunity to work in the position was discriminatory on the part of the Employer. He also submitted that he was fully qualified to perform the work, and the denial of an interview was further evidence of discrimination by the Employer.
The Grievor conceded that the Employer had the right to determine the criteria for the position, but argued that the use of 3 month's experience in a Deputy position as a qualification requirement excluded him from the position, even though he otherwise had the qualifications for the position.
This board has carefully reviewed the arguments of the parties on the preliminary objection. The Grievor's complaint in this matter is largely concerned with the criteria selected by the Employer which required, among other things, 3 month's experience in a similar position. This criteria, in effect, excluded the Grievor, because he was denied the opportunity to gain the experience by the Superintendent’s decision not to rotate O.M.16’s through the position prior to the competition. Given the lengthy period of time the position remained vacant, it is unusual that the Employer would deny such a request from an employee to rotate in the position, and may well give an employee the impression of bad faith on the part of the Employer. Filling vacant positions on an acting basis, however, is a management right, and while management in this instance did not use the lengthy period of time to rotate staff through the position on a training basis, it remains a management right to not do so. The decision to not rotate employees through the position, accordingly, does not in itself constitute bad faith or discrimination on the part of the Employer.
In the competition, the Employer decided that as a part of the criteria for the position, candidates must possess at least 3 month's experience in a similar management position. The advertisement for the competition did not set out this requirement as a specific qualification for the position, but did specify “Demonstrated supervisory, organizational and decision-making experience”.
The Employer in this instance determined that a 3 month's experience requirement was a necessary qualification for the position of Deputy Superintendent, Operations, based presumably upon its assessment of the duties of the position and the desirable type of qualifications that the successful applicant should possess. In the absence of unreasonableness in the determination of the criteria, the judgement of the Employer should stand, and this Board should not disturb the Employer’s decision. In the case of Adele Scott Anthony, supra, the Board concluded that it had no jurisdiction to interfere with the Employer's right to determine the scope of a competition, and in the Brander case, supra, the Board decided that in the absence of bias or unfairness it had no authority to substitute its judgement for that of the Employer in its assessment of the qualifications of the candidates. The same may be said for the Employer's determination of the appropriate qualifications for the position.
In the case before this Board, the competition was open to any classified employee in the Ministry, and the qualifications for the position were selected to reflect the Employer's view of the suitable employee for the position. A number of other Ministry Employees apparently applied for the position in addition to the Grievor and the successful candidate. These employees were also unsuccessful in the competition. The Grievor no doubt felt that the Employer's refusal to rotate him through the position was unfair and discriminatory, but the Employer has no obligation to do so, and on this basis, this Board must conclude that the Employer's actions were not discriminatory in a bad faith sense.
In summary then, this Board has no jurisdiction to substitute its judgement for that of the Employer with respect to the selection process, given that the Employer acted within the bounds of its rights as an employer. The grievance is therefore dismissed.
DATED AT TORONTO THIS 14TH DAY OF MAY, 1999.