IN THE MATTER OF AN ARBITRATION BETWEEN:

ONTARIO NURSES’ ASSOCIATION

-AND-

WOMEN’S COLLEGE HOSPITAL

GRIEVANCE OF ANDERSON

AWARD Arbitrator: Laura Trachuk For Ontario Nurses’ Association: Sandy Donaldson Stacey Papernick Nichole Bentley Laura Anderson For Women’s College Hospital: Peigi Ross Catherine Fox Heather Kennedy Chris Barrett Megan Beneteau The arbitration of this grievance took place in Toronto on January 19, March 21 and June 3, 2015 and January 12 and 28, 2016.

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AWARD The Ontario Nurses’ Association (the “Association”) has filed this grievance alleging that Women’s College Hospital (the “Hospital”) has violated the collective agreement by failing to award Laura Anderson (the “grievor”) the position of Registered Nurse in the Dermatology Program – Mohs Surgery Centre and RKS Dermatology Centre (the “Mohs position”). FACTS The job posting closed on July 3, 2014. The grievor and another nurse were interviewed on July 9. The grievor was advised that she was not successful in the position on July 29. The Hospital posted the position externally and a candidate was hired in August 2014. As the Mohs position was ultimately offered to an external candidate, the issue in this case is not the relative equality of two candidates. If either of the internal candidates was qualified for the position she should have been appointed to it before the Hospital looked outside. The Association asserts that the grievor was the senior applicant, that she was qualified, and that the job competition process that the Hospital used to determine that she was not, was fatally flawed. The grievor has been a registered nurse since 1994. She started working for the Hospital as a full-time operating room Nurse in 2005. She has an Operating Room Certificate in Nursing and has done a post-anesthetic care course. She is a member of Operating Room Nurses Association of Canada. That organization sets operating room guidelines and standards for nurses. She is also a member of the Peri-Anesthesia Nurses Association and the Women’s College Joint Health and Safety Committee. She worked in a temporary position as an Orthopedic Resource Nurse from 2012 to 2013. The grievor previously worked as a part-time/casual operating room nurse at the Scarborough Hospital from 2000 to 2005 and as a part-time Operating Room Nurse at Women’s College Hospital from 1999 to 2000. Women’s College Hospital is an ambulatory care facility. The surgeries performed on the grievor’s unit include mastectomies, breast reconstruction, gynecology, sports medicine, urology, a thyroid programme, and general surgery. The surgeries are usually performed while the patients are under a general anesthetic although the grievor has worked with conscious sedation in the past. The grievor works in both a circulating and scrubbing role. When the grievor is assigned as the circulating nurse she runs the operating room. The circulating nurse is responsible for maintaining the focus in the room and ensuring that it is fully equipped for the surgery. She is also responsible for the documentation and charting for the surgery and for doing the counts. When the grievor is in the scrubbing role she assists with the surgery. The grievor will have 4 to 8 patients per day depending on the type of surgery being performed. In the circulating nurse role, the grievor interacts with the patients before the operation and when she brings them into the room as well as while they are waking up before they are taken to the post-operative room. The grievor reviews the pre-operative check-list with the patient before the operation. She is required to get the patient’s consent and

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ensure that the patient understands what she is having done. The grievor must explain the procedure and manage the patient’s anxieties and fears. The surgical team includes the surgeon, a resident or fellow, an anesthesiologist and her fellow or student, an anesthesia assistant and the nursing staff. They engage in a team “huddle” before the surgery to discuss how it is going to proceed before they begin. The nurses are expected to participate and provide relevant information to the team. The grievor is involved in extubating the patient and is there when she is woken up. A waking patient may have a laryngospasm and need oxygen. The patients may be disoriented and restless and they sometimes want to scratch their eyes or face. The grievor sometimes acts as charge nurse and in that role is required to manage the flow in the rooms. She has oriented many new nurses, done presentations and filled in when the nursing Preceptor was away. She instructs medical students in basic sterile techniques such as gowning and gloving, how to observe the sterile field and where to stand in the operating room etc. The Mohs Surgery Centre conducts two types of skin cancer surgery. “Mohs” is a surgical technique to remove basal and squamous cell carcinomas of the face and neck. It is a day surgery in which the carcinoma and surrounding area are excised. The margins are then checked to determine if they are clear. If they are not, more of the surrounding tissue is removed until they are. Therefore, patients do not really know how much tissue will be removed from their face or neck when they arrive. The patients are awake and talking throughout. There are three surgeons working at the Mohs clinic at a time and each does 5 to 6 Mohs procedures per day. A nurse is assigned to each surgeon. The patients arrive simultaneously. The nurse receives them and does a pre-operative assessment. The nurse then takes the patient into a room and gives her an injection to freeze the area on which she will be operated. The surgeon comes in and removes the relevant tissue. The nurse then cauterizes and bandages the area. The specimen is sent to the lab and the patient goes back to the waiting room until the sample has been prepared and the slide read by the surgeon. If necessary, more tissue is removed. Each surgeon has three rooms with patients going in and out. It is not unusual for patients to have the procedure performed five times. Patients are asked to be prepared to stay at the clinic from four to six hours. In the end, more of the patient’s face or neck may have been removed than she anticipated. Patients are usually anxious about the skin cancer, the process, and the result. The nurses working in the unit must be able to manage the patients’ anxieties while performing their other duties. The clinic also does one or two non-Mohs procedures each day. They are similar except that the samples are sent to an external lab and the patients are sent home after the procedure and advised of the results later. The Job Posting The job posting includes the following summary of duties: Mohs Surgery Centre

• Perform preoperative and postoperative patient assessments • Actively participate in surgical procedures including administering local

anaesthetic and performing electrofulguration

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• Management of post-surgical site including dressing wounds • Provide extensive patient education related to the procedure, and post care

including wound care and healing and sun skin protection • Prepare procedure trays with aseptic technique • Manage patient flow • Liaise with Community Care Access Centres • Respond to patient telephone inquiries, including management of complications • Participate in teaching medical students and nursing students • Documentation in patient chart • Stock procedure rooms with medical supplies

RKS Dermatology Centre

• Performs a variety of medical procedures such as: dressing, liquid nitrogen treatments, aesthesia, suture removal, fungal scrapings and intramuscular injections

• Manage test results (pathology, lab, etc.) • Manage large volumes of patient calls, coordinate referrals and provide case

management The job posting listed the following “Qualifications/Skills”

• Current certificate of competence from the College of Nurses of Ontario • Bachelor of Science in Nursing preferred • Membership in the Dermatology Nursing Association is an asset • 1-2 years experience in a hospital setting with surgical or dermatology

experience is strongly preferred • Able to work independently and manage complex and unpredictable patients

through critical thinking and judgement • Ability to stand for extended periods of time and physically manoeuvre a fast-

paced environment • Excellent time management skills • Proficient in Microsoft Office • Exceptional written/verbal communication skills • Professional behavior and communication that meets the standards of the

professional regulatory college or association, as applicable, and the standards of Women’s College Hospital

• The position plays a critical role in acting as an advocate for safety and will demonstrate principles, practices and processes that will optimize a safe environment for all

The Competition Process The two nurses who applied for the position were interviewed. The interview panel was comprised of five people: Catherine Fox, the unit Manager; a representative from Human Resources; a physician from the unit; two registered nurses from the unit; and an administrative support person from the unit. The administrative support person’s marks were ultimately not used in calculating the grievor’s score because she failed to mark one page of the grievor’s answers. The panelists met directly after each interview and Ms. Fox collected their scoring sheets. Ms. Fox explained that the panelists entered their

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marks independently and discussed each of the candidates together after the interview. They did not discuss the scoring of the individual questions. Ms. Fox testified that she made the decision that neither the grievor nor the other internal candidate was qualified for the position on July 10, 2014. She made the decision in consultation with Human Resources and her Clinical Director. Ms. Fox confirmed that the interview was the sole basis for making the determination. Ms. Fox testified that she was given the successful external applicant’s résumé by one of the nurses on the panel on July 10, the day after the grievor was interviewed. Ms. Fox said that the external applicant was the nurse’s brother’s friend’s sister. Ms. Fox contacted the external candidate by email at 10:47 a.m. that day and asked her to come for an interview on July 15. The external candidate was interviewed on July 15. The panel agreed that she would be a good candidate but she was not available at that time. The grievor was not informed that she was unsuccessful until July 29. Ms. Fox said that there was a 19 day delay because the grievor was away from July 14 to 18 and that the period following her return was hectic. The position was posted externally on July 29 and more external candidates were interviewed in August. The position was offered to someone who turned it down. Ms. Fox then decided to wait until the person they had interviewed on July 15 became available. That external candidate was a new graduate and was not registered when she was interviewed on July 15. She started on the unit in September 2014. The Interview Ms. Fox is the Clinical Manager responsible for overseeing the Hospital’s dermatology and mental heath programs, the Wound Care Centre, and the Phototherapy Education and Research Centre. She has two bachelor and two masters degrees, none of which are in nursing. Ms. Fox had not received any formal training in job competitions prior to this one but she testified that she had participated in many. Ms. Fox testified that she put together the interview questions using prior interviews and the “job description”. [I was never provided with a document with the title “job description” but both parties referred to the job posting as the “job description”.] There were some suggested answer criteria for most of the questions but there was no relationship between the number of suggestions and the potential number of points available for the question. The nurses and the surgeon on the panel reviewed the questions prepared by Ms. Fox and had the opportunity to add others. The surgeon added a question about aseptic technique but did not include any answer criteria. Ms. Fox explained that they wanted to get a “feel” for the candidates’ skills with respect to multi-tasking, conflict resolution, patient care, education and teaching of medical trainees. There were 13 questions, each with a possible score of 15. Ms. Fox said that each of the questions was given the same score because the panel felt that each of the skills was of equal importance. There were also three scenarios, each with a possible score of 20. Ms. Fox advised that the scenarios were marked out of 20 because they looked at the candidate’s “approach” and warranted a higher mark. The Hospital did not set a threshold passing mark prior to the interviews. The Hospital advised the candidates that they would be interviewed by a panel but did not provide them with any other information prior to their arrival. The grievor testified that she looked up both clinics and the Mohs procedure on line and that she felt that she had

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a good idea about what the clinic did before she went to the interview. She does not claim to have been particularly anxious or nervous. The grievor testified that she expected the panel to have an understanding of her operating room experience and, therefore, did not spell out all of the different things that she did. The position was described to the candidates at the outset of the interview. The panelists then took turns asking the questions. After the candidate answered a question each panel member scored the answer out of 15. The panel did not probe or ask any follow up questions. The grievor testified that the interview lasted 25 or 30 minutes. The grievor did not score particularly well in the interview. The maximum number of points available was 255 and the grievor received scores of 143, 161, 174 and 184 (56%, 63%, 68% and 72%). The highest scores were from the nurses at 68 and 72 percent and the lowest was from the doctor. There was a four or five point difference in the marks for most of the questions but four questions had a difference of more than eight points. Ms. Fox said that, although a threshold score was not set in advance, they were confident that the grievor’s average score of fewer than 70 percent was not enough. She testified that even though the grievor got 75 percent on the scenarios she was not considered qualified because of her other answers. Ms. Fox also testified that the panel did not have concerns with the grievor’s technical skills. However, she did not think that the grievor had the “soft skills” required for the position. Ms. Fox testified that she has no first hand knowledge of what occurs in a surgical setting and that the grievor did not explain how her experience made her an ideal candidate for the Mohs clinic. Ms. Fox said that the grievor’s answers were truncated but that she did not ask her to elaborate because she considered it the candidate’s job to give appropriate responses. Ms. Fox had many criticisms about the grievor’s answers but her main concern was the grievor’s answer to the question about difficult patients. She said that the grievor referred to “crazy” and “irrational” patients and to holding patients down. Ms. Fox was also concerned that the grievor did not seem enthusiastic about the teaching role and did not discuss being a role model in her answer to that question. She had concerns about the grievor’s communication skills and did not like her use of what she considered slang and casual language. When taken through the job posting Ms. Fox did not have concerns about the grievor’s ability to perform most of the tasks required of the Mohs nurse but she did not think the grievor could multi-task because of the answer she gave to that question. Ms. Fox also testified that one of the grievor’s answers was contrary to the principles of Women’s College Hospital because she said that she found abortion patients challenging. Ms. Fox concluded that the grievor found such patients to be a moral challenge as opposed to finding them challenging because they could be upset and she empathized with them. Ms. Fox did not ask the grievor to clarify. Ms. Fox testified in cross-examination that she went back after the interview and made further notes on the grievor’s answers all of which were negative. She said she wanted to be clear about why they were rejecting the grievor’s candidacy because she had a lot

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of experience. Ms. Fox did not make any further notes on the other applicant’s score sheet. The grievor was advised by Ms. Fox on July 29 that she was not successful in the competition. She testified that she was given some reasons for being rejected but did not agree with them. When the grievor ultimately learned that a new graduate had been hired for the position and not someone senior to her, she decided to pursue the matter further. This grievance was filed on August 26, 2014. COLLECTIVE AGREEMENT 10.07 Job Posting

(a) i) Where a permanent full-time vacancy occurs in a classification within the bargaining unit or a new full-time position within the bargaining unit is established by the Hospital, such vacancy shall be posted for a period of seven (7) consecutive calendar days. Nurses in this bargaining unit and nurses in another ONA bargaining unit at the Hospital, if any, may make written applications for such vacancy within the seven (7) day period referred to herein. Subsequent vacancies created by the filling of a posted vacancy are to be posted for seven (7) consecutive calendar days. Where a vacancy under this provision has remained unfilled for a period of six (6) months from the date of the initial posting, and the employer still requires the position to be filled, it will be reposted as noted above.

…

(c) Nurses shall be selected for positions under either Article 10.07(a) or (b) on the basis of their skill, ability, experience and qualifications. Where these factors are relatively equal amongst the nurses considered, seniority shall govern providing the successful applicant, if any, is qualified to perform the available work within an appropriate familiarization period. Where seniority governs, the most senior applicant, regardless of her or his ONA bargaining unit, will be selected. Where the applicant has been selected in accordance with this Article and it is subsequently determined that she or he cannot satisfactorily perform the job to which she or he was promoted or transferred, the Hospital will attempt, during the first sixty (60) tours (450 hours for nurses whose regular hours or work are other than the standard work day) worked from the date on which the nurse was first assigned to the vacancy, to return the nurse to her or his former job, and the filling of the subsequent vacancies will likewise be reversed. If the nurse requests the Hospital will give due consideration to returning the nurse to the nurse’s former position, provided that the former position has not been filled or eliminated. Such request shall not be unreasonably denied. Notwithstanding the level of entry to practice (baccalaureate degree in nursing) which will become effective in 2005, the Hospital will not establish qualifications, or identify them in job postings, in an arbitrary or unreasonable manner.

ASSOCIATION SUBMISSIONS Although it expressed concerns at the outset of the hearing, the Association is not alleging that the Hospital acted in bad faith in filling the Mohs position. However, it does allege that the competition process for the Mohs position was fatally flawed because the

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Hospital based its determination that the grievor was not qualified on the interview alone. The Association submits that the Hospital should also have scored the grievor’s résumé, looked at her performance reviews and got references from former supervisors. It asserts that it would be very useful to speak to a former supervisor about the grievor’s ability to communicate, problem solve and multi-task. According to the Association, the competition was also flawed because the Hospital did not assess all four factors required under the collective agreement. It also contends that the Hospital did not apply any objective standard to determine if the candidates were qualified. The Association maintains that the questions asked in the interview were subjective and looked for impressions instead of assessing whether the candidates had the necessary abilities. The Association submits that the interview determined how good someone was at interviewing not whether she had the skills necessary for the position. The Association argues that Article 10.07 (c) only requires that a candidate be qualified to perform the work and that the Hospital is not entitled to insist on the ideal candidate. The Association contends that the grievor is qualified. It asserts that there is no dispute that the grievor has the technical qualifications for the position as a result of her background in surgery. It maintains, further, that the grievor has demonstrated that she has the “soft skills” that the position requires. The Association argues that the Hospital should have done a comprehensive job analysis and then crafted interview questions to fit the job duties. It says that the questions that were asked did not pertain to the four factors required by the collective agreement. The Association submits that none of the questions went to “qualifications” and only one question touched on “experience”. It maintains that it is not sufficient that “experience” might be read into other questions. The question has to be explicit if it is to count towards experience. The Association asserts that the rest of the questions in the interview related to “abilities” and not to “skills”. It insists that that distinction must be made in the competition process because it is in the collective agreement. The Association argues that skills refer to things like a certain type of injection technique and not “communication” or “time management” which are really abilities. It contends that it was clear in Ms. Fox’s testimony that she was only interested in abilities. It asserts that she did not even acknowledge that the grievor’s nursing experience was relevant. The Association maintains that there is no way to look at the scoring sheets and determine whether the grievor scored better or worse with respect to any of the four collective agreement factors or the requirements for the position. It contends that the Hospital failed to break down the factors related to the position to determine where the candidate had strengths and where she was deficient. It says that the interview score is virtually useless without that breakdown. The Association maintains, further, that the applicants should have been told how each question was going to be rated because that provides a guide as to how much information they should provide. The Association notes that the panel did not even discuss how the interview would be scored. The Association also argues, that the questions solicited opinion and did not have any real relevance to the position. It says that the questions were vague and could be asked of any position. They did not relate to the abilities that are specific to this job. The Association claims that the interview was basically a search to see if the candidate used the right key words. It was, therefore, impossible to assess whether the grievor had the

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minimum qualifications. The Association contends that if the Hospital had actually assessed experience, skills, and qualifications, the grievor would have been successful. The Association also asserts that the Hospital failed to weight the questions against the requirements and duties in the job posting. It notes that Ms. Fox said that she considered each skill to be of equal importance. As a result, the question about the candidate’s career plans was given the same weight as the question on multi-tasking. The Association contends that that is not reasonable. It says that a person’s career plans contribute nothing to a determination about whether she has the qualifications to perform the duties of the position. The Association submits that the concerns Ms. Fox expressed about the grievor demonstrated that she was focused more on the grievor’s “style” than the actual content of her answers. She criticized the grievor’s use of slang and words like “stuff”. The Association maintains, however, that casual language does not necessarily mean that a candidate has poor skills for the communication required by the position. It asserts that the grievor was using that language in an interview and that does not necessarily mean that she would speak to patients the same way. The Association points out that the Hospital said in its opening statement that the grievor did not get the position because of her manner in presenting her abilities, not that she did not have them. It says that that is the danger of using an interview alone but that danger could have been somewhat mitigated if the panel had prompted or probed the answers. The Association argues that that was clearly required in this case because Ms. Fox said repeatedly that the problem with the grievor’s answers were that they were truncated or brief. The Association submits, further, that the panelists should have been trained and that if they had been they would have asked for clarification of the grievor’s answers when they were not sure what she meant. The Association acknowledges that a candidate is responsible for providing the information asked for but says that the panelists also have an obligation to probe. It maintains that is an important tool in getting actual information about the factors rather than just assessing the candidate’s ability to present herself in an interview. The Association also asserts that the negative way some of the grievor’s answers were interpreted demonstrates a problem with the interview. The grievor was asked about challenging patients and she mentioned “abortion patients”. Ms. Fox assumed that meant the grievor was opposed to abortion and said that was contrary to the Hospital’s values with respect to equity and women’s health. The Association contends that is not an obvious interpretation of what the grievor said. It argues that that would have been an obvious time to ask what the grievor meant. It maintains that is also true about the grievor’s use of the words “crazy” and “irrational” and “holding patients down”. Instead, Ms. Fox interpreted what the grievor said to mean that she abused patients. The Association notes that Ms. Fox said that she did not need to ask follow up questions because the grievor should have elaborated. It contends that the problem with that approach is that the grievor might have been thinking the same thing. The grievor would reasonably think that her 15 years of surgical nursing experience would speak for itself and that she would not have to point out how her experience was relevant. The Association also contends that the interview process was fatally flawed because the Hospital did not decide what mark was required to be successful ahead of time. Furthermore, there was significant variability in the scoring between the panelists. It says that a large difference in scores indicates that some of the panelists got it wrong. The

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Association submits that the panelists would have given similar ratings if the interview were appropriately structured. The Association maintains that the panelists clearly did not agree about what they were looking for. It notes that the scoring overall varied by 16 percent and if the lowest score is subtracted from the highest score for each question the variance is 30 percent. It says that does not take into account the bell curve rate. The Association contends that the variability in scoring leads to the conclusion that there was a measurement error. The Association argues, further, that Ms. Fox focused on “soft skills” and “multi-tasking” to explain why the grievor was not qualified for the position but that those things are not highlighted in the job posting. The job posting does not say that a candidate must have the ability to deal with challenging or anxious patients. It refers to “complex” patients but the Association contends that does not mean that they are challenging or anxious. It says that there is nothing in the posting about being able to counsel patients who are upset or scared. The Association notes that the posting does not mention multi-tasking at all and that it does not even talk about working in a high intensity or fast-paced environment. The Association submits that Ms. Fox was not ultimately able to point to any objective criteria or standard used to measure whether the grievor was qualified. She just said that the grievor was not the candidate that they wanted to select. The Association argues that she also clearly did not think that her score sheet spoke for itself because she felt the need to add further negative comments later and she did not do that for the other candidate. The Association asserts that Ms. Fox knew that the grievor could do the job but disqualified her from working on her unit because of her style of speaking. It insists, however, that that is not a job requirement. The Association asks that the grievance be upheld. It submits that it has provided sufficient evidence to show that the grievor is qualified for the position and it asks for an order that she be placed in it. In the alternative, it asks that the competition be rerun. If it is to be rerun, the Association asks for an order that only the two original candidates be permitted to participate and that the Hospital must use resources beyond an interview. The Association refers to the following awards: St. Peter’s Hospital, Hamilton and Ontario Nurses’ Association, (unreported, July 18, 1993, Rose); Bowmanville Memorial Hospital and Ontario Nurses’ Association, (unreported, March 12, 1985, Barrett); Fairview Home Inc. (Re), [1991] M.G.A.D. No.68 (Cherniak); Hamilton Health Sciences v. Ontario Nurses’ Association (Jones Grievance), [2007] O.L.A.A. No. 416 (Johnston); Greater Niagara General Hospital v. Ontario Nurses’ Assn. (Robb Grievance), [1977] O.L.A.A. No. 143 (Devlin); Temiskaming Hospital and Ontario Nurses’ Association, (unreported, May 16, 2006, Rose); Re Belleville General Hospital and Ontario Nurses’ Association, [1986] O.L.A.A. No. 9 (Thorne); Ottawa-Carleton Public Employees’ Union, Local 503 v. Ottawa (City) (Smoley Grievance), [2007] O.L.A.A. No. 274 (Roach); The Corporation of the City of Windsor (Huron Lodge) and Ontario Nurses’ Association (unreported, November 18, 1997, Brunner) and New Brunswick Nurses Union v. Regional Health Authority 1 (Southeast) (Crossman Grievance), [2006] N.B.L.A.A. No. 6 (McEvoy). HOSPITAL SUBMISSIONS

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The Hospital submits that the Association has not met the onus of demonstrating that the competition process was flawed. It asserts that the grievor does not have the skill, ability, experience and qualifications for the Mohs position. The Hospital argues that the standard to be applied to the competition was whether its assessment of the grievor’s skill, ability, experience and qualifications was reasonable and not whether it was correct. It says that it met the standard of reasonableness. The Hospital agrees that the grievor has the technical skills for the position but says that she does not have the “soft skills” that it relies upon. It says that candidates selected under Article 10.07 must be able to perform the duties of the position with only a familiarization period and that is not an opportunity to be trained or to acquire skills. The Hospital contends that the grievor does not have the ability to multi-task and to communicate with anxious patients. It says that the grievor never provided a concrete example of having such experience and there is no reason to conclude that she could do those things with only a familiarization period. The Hospital asserts that the competition process met the threshold required to assess the four criteria because the position was explained to the grievor at the outset of the interview and she had a full opportunity to to describe her experience, skill, ability and qualifications in that context. The Hospital argues that the job posting sets out what it deemed to be relevant in performing the position and that it is entitled to deference with respect to that determination. It contends as well that it is entitled to deference with respect to its decision to place emphasis on some of the collective agreement criteria. The Hospital maintains that it chose to emphasize the ability to multi-task because of the requirements of the position. It asserts that the grievor answered that she would focus on one task at a time so it was reasonable for it to conclude that she did not have that skill. The Hospital also argues that communication is key for this position and that it was listed in the job posting. It says that it turned its mind to how the grievor chose to communicate in the interview. The Hospital insists that it was reasonable to look at the grievor’s performance in the interview as a predictor of how she would communicate in the Mohs position. The Hospital says that the grievor agreed in her testimony that it was fair to assess how she communicated in the interview. The Hospital submits that the job posting said that the candidate must be able to communicate professionally and the kind of language the grievor used was not professional. The Hospital argues that the grievor demonstrated her vague way of answering questions in her testimony because she would give one or two examples and then say things like “and stuff” and “like that”. The Hospital maintains that is not the communication style it deems appropriate for a position with a high degree of interaction with patients. It contends that the grievor used words that the panel considered unacceptable and that she agreed that those words were not appropriate. The Hospital also asserts that the grievor chose to communicate in a truncated manner and that she agreed that she should not have assumed that the panel knew more than it did.

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The Hospital argues that much of the information provided by the grievor in her testimony about her experience, skills, ability and qualifications was not provided to the panel and that it could only decide on the basis of the information it was given. It contends that the hearing is not an opportunity for the grievor to re-interview for the job or to fix up or offer alternative answers to the interview questions. The Hospital submits that the grievor did not mention in her résumé or in the interview that she had been a Preceptor or had done any presentations. The Hospital says that the panel would know the general role the grievor had in the operating room but not her individual experience. It also claims that if the panel is required to consider qualifications the grievor must provide the information, including examples, when asked to do so. The Hospital insists that it is up to the candidate to talk about her abilities and how they fit the role she is applying for and to highlight her skills. It says that it is not required to infer things from the job function that the grievor currently fills. It denies that it was under any obligation to seek out information about the grievor’s skill, ability, experience and qualifications that were not set out in her résumé or mentioned in the interview. The Hospital argues that it did look at the grievor’s résumé and, therefore, did assess her qualifications. However, her résumé was brief and did not show the basic qualifications for the position. It says that the résumé did not expand on the functions the grievor performed in her current or prior positions. The Hospital contends that the résumé was the grievor’s opportunity to present herself in the best light and that the onus was on her to do that. The Hospital submits that the interview was the opportunity for the grievor to put her best foot forward but that she approached it casually. She did not research the position other than looking at the website. She did not ask for clarification in the course of the interview. It says that she came to the interview and had a casual conversation in which she made assumptions about the panel and used language that was not respectful of patients. The Hospital argues that it was, therefore, reasonable for it to find that she did not have the skills necessary for the position. The Hospital maintains that the grievor’s experience is of limited relevance to the Mohs position because of the differences in the two roles, in particular, that the grievor deals with patients under sedation. It was, therefore, allowed to ask questions about other experience and make an assessment based on the information provided in the interview. The Hospital argues that the questions the grievor was asked in the interview were directly relevant to the duties and qualifications in the job description. The grievor was asked open ended questions about her experience, independent action, teaching medical trainees, infection control, conflicts, dealing with difficult patients, philosophy of patient care, multi-tasking, initiative, receiving constructive feedback and other topics relevant to the role. She was also provided with specific scenarios to respond to. The Hospital contends that the scenario questions were the opportunity for the grievor to demonstrate her skills. It submits that all of the questions were designed to elicit performance indicators and that is the purpose of a job competition process. The Hospital insists that it was not required to ask probing questions because it was trying to assess the grievor’s communication abilities. It denies that it should have asked questions when the grievor referred to abortion patients because it was, in part, assessing how she interacted with people.

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The Hospital contends that Ms. Fox did have interview training because she had participated on many panels in the past. It says it was up to the Association to call the other panel members as witnesses if it wanted to rely on their lack of training. The Hospital denies that any conclusions can be drawn from the variance in the scores because the authors of the score sheets were not called as witnesses. It contends that, in any case, some variance is to be expected and that is why the average was used. The grievor’s average was 65 percent and that was not enough because 70 percent was deemed to be a pass. The Hospital notes that if the high and low score were removed the average would be 66 percent. If the high and low mark for each question were removed the mark would be 64.5 percent. In summary, the Hospital argues that the panel’s decision that the grievor was not qualified for the position was reasonable. It acknowledges that she has the technical skills but claims that she does not possess the necessary “soft skills”. It contends that she cannot multi-task or communicate well. The Hospital argues that the grievor did not demonstrate the skills and abilities required for the position in the interview and that is what the decision should be based on. It maintains that her presentation at the interview was a good performance indicator of how she would perform in the job. It also argues that, even if the grievor’s evidence is considered, that did not demonstrate that she had the experience, skills, abilities or qualifications for the position either. The Hospital submits that the competition met the standards of the collective agreement and that the grievance should be dismissed. It says in the alternative, that if the conclusion is reached that the competition process was inadequate, the position should not be awarded to the grievor. It contends that the appropriate remedy is rerun the competition for both of the original candidates. The Hospital refers to the following awards: Ottawa Hospital and O.P.S.E.U. (Jamal) (Re), [2002] O.L.A.A. No. 991 (Kaplan); Nithview Community, a Division of Tri-Country Mennonite Homes v. Ontario Federation of Healthcare Workers, Labourer’s International Union of North America, Local 1110 (Chicas Grievance), [2015] O.L.A.A. No. 440 (Monteith); Sault Ste. Marie (City) Public Utilities Commission and C.U.P.E., Loc. 3 (Miller), Re, [1994] O.L.A.A. No. 124 (Hinnegan); Ontario Public Service Employees Union, Local 343 v. Peterborough Hospitals Shared Services (MacArthur Grievance), [1998] O.L.A.A. No. 975 (Dissanyake) and Falconbridge Nickel Mines Ltd. v. Simmons, [1972] O.J. No. 9. ASSOCIATION REPLY The Association denies that the panel relied on the grievor’s résumé. It submits that Ms. Fox testified that the decision with respect to the grievor was based solely on the interview. The Association claims that if Ms. Fox had said that the panel also considered the résumé it would have asked how it was scored and what impact it had. It also argues that the fact that the résumé was used for a paper screening does not mean that it was used to assess the grievor’s qualifications. It notes that the summary of the score sheets prepared by Ms. Fox and provided by the Hospital does not indicate that the résumé was considered. The Association asserts that the grievor could do the job with only a familiarization period and did not need any training or to acquire any new skills.

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The Association replies, further, that it is irrelevant whether the panel’s assessment of the grievor’s answers was reasonable because the process was fundamentally flawed. The panel’s conclusion was, therefore, unreliable. The Association asserts that the evidence provided by the grievor illustrated the information that was missed by the flawed process and that it demonstrated that she has the experience, skills, abilities and qualifications required by the position. The Association also asserts that the grievor’s failure to provide more information to the panel is not an illustration of her lack of qualifications but of her ability to interview well. Likewise, the grievor’s failure to prepare more for the interview is also not relevant to whether she is qualified; it only demonstrates how she prepares for interviews. The Association replies, further, that even if the grievor agreed that it was fair for the Hospital to rely on her interview, that does not mean that it was correct. The jurisprudence establishes that performance in a job interview is not indicative of performance in a position. The Association also replies that the posting says that surgical experience is preferred so it should not have been necessary for the grievor to explain why her surgical experience was relevant. Likewise, the posting refers to the College standards and the grievor has been a nurse for 15 years in a licensed profession. She should be able to assume that her employer knows that she is meeting the standards. Finally, the Association asserts that the Hospital had advised that it would be calling the other members of the interview panel as witnesses and then did not. It says that, in any case, it is not relying on how panelists other than Ms. Fox, assessed the questions. It is only relying on the differences in the scores and that is not in dispute. It insists that those scores demonstrate a measurement error. DECISION The job competition provisions in the collective agreement are important because they directly impact the careers of the registered nurses working for the Hospital. Those provisions, therefore, need to be taken seriously and significant guidance has been provided in the jurisprudence about what Article 10.07 (c) requires. (See Hamilton Health Sciences, Greater Niagara General Hospital and Temiskaming Hospital) The Hospital did not follow that guidance and the competition it held for the registered nurse position in the Mohs Surgery Centre and RKS Dermatology Centre did not meet the requirements of the collective agreement. The collective agreement requires that the Hospital select nurses “on the basis of their skill, ability, experience and qualifications.” That means that the Hospital must specifically assess those four factors for each candidate. It may use an interview to do so but not to the exclusion of all of the other information it has about the applicants who, after all, are already employees. If the Hospital does use an interview, the questions must actually measure the candidates in reference to the requirements of the position and not their ability to perform well in a job interview. A threshold mark must be established before the interviews and not after because that becomes another opportunity for subjectivity to be brought into the process. It is necessary to have suggested answers for each question and they must bear a relationship to the points

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and weight for that question. The panel should know what those are before they mark the candidates. The job competition for the Mohs position did not meet any of these requirements. The Hospital Relied on the Interview Exclusively The Hospital’s exclusive reliance upon the interview to assess the candidates’ qualifications was, on its own, a fatal flaw in the competition. In Hamilton Health Sciences, at paragraph 59, the arbitrator found that relying on an interview alone is inconsistent with the balanced assessment required by the the collective agreement:

As noted by counsel for the union, reliance upon an interview alone as the method for the selection of candidates has received some criticism by arbitrators. In the Greater Niagara General Hospital Case, Arbitrator Devlin noted:

In any event, in the Board’s view, there is a more fundamental problem with the approach adopted by the Hospital in this case. In this regard, it is evident that the Hospital chose to rely on the results of the examination and interview to the exclusion of factors such as relevant experience, performance appraisals and related courses. In support of this position the Hospital maintained that in responding to questions asked on the B.B.I., applicants were required to draw on their skill, ability, experience and qualifications. Accordingly, it was contended that the interview effectively measured the criteria set out in Article 10.06(c) of the collective agreement. There is no question that an interview may be a useful tool in assessing applicants for a job vacancy. ... In any event, as noted by the Association, there are a number of awards in which it has been held that it is inappropriate for an employer to rely solely on test scores or interview results. Instead, it has been determined that a balanced assessment requires a consideration of all relevant factors, including test and interview results, on-the-job performance, related courses and performance appraisals.

I agree with these observations and in particular with the comment that if an interview alone is the only selection tool utilized, it may not result in the same sort of balanced assessment that a consideration of actual experience and performance reviews might generate. As has been noted in the jurisprudence and is true in this case, some people do not perform well in interviews but that does not mean that they may not be an excellent candidate for a job. In addition to the cases referred to above, see also the Re Regina Qu’Appelle Health Region and Saskatchewan Union of Nurses Case, in which it was accepted that “ ... there is a risk of placing too much reliance on an interview especially where a grievor has extensive work experience. That is not to say, however, that an interview cannot be an important or even the principal tool in the selection process provided of course that the appropriate test is adhered to. Each case will, of course, be dependent on its peculiar facts.”

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In the case before me, the decision regarding who would be awarded the job was based solely on the results of the interview. No consideration was given to any actual performance in the job or performance reviews. Based on the facts of this case and for the reasons which follow, this created a fundamental flaw in the selection process.

Ms. Fox testified that she relied solely on the interview. In its submissions, the Hospital asserted that she also considered the résumés but that was not consistent with her evidence. Even if the grievor’s résumé was reviewed, it was not assessed in the context of the collective agreement requirements. The grievor had worked for the Hospital for nine years yet it based its decision on a 30 minute interview. It did not look at her performance appraisals or speak to any of her supervisors about her actual experience, skills, abilities and qualifications. To be clear, it is not sufficient to call a current supervisor and ask if she likes the grievor, the questions asked of the supervisor also have to relate to the collective agreement and the requirements of the position. For example, if the panel really thought that the ability to multi-task was important it could have contacted her supervisor, asked if the grievor was required to multi-task in her current role and then asked about how she meets that requirement. That is information that the Hospital already has about the grievor. If, which seems unlikely, surgical nurses do not have to multi-task, the panel can ask the candidate a scenario-based question in which she could describe how she would respond as opposed to having to remember an anecdote on the spot. Relying exclusively on the interview ignores the fact that the applicants already work for the Hospital. It is not unreasonable that someone being interviewed would expect that to be taken into account. I note that the application form asked for the candidate’s current position, supervisor and her supervisor’s phone extension so she would reasonably expect that her supervisor would be contacted. The Hospital Assessed the Grievor’s Communication Skills by the Way She Presented Herself in the Interview The Hospital insists that the grievor’s performance in the interview demonstrates that she does not have the communication skills required for the Mohs position. The job posting does include a requirement for exceptional communication skills. However, the way a candidate performs in an interview does not demonstrate how she communicates with patients. It is well established in the jurisprudence that an employer cannot use the manner in which someone responds to interview questions as a predictor of how she interacts in her job. (See Hamilton Health Sciences and Temiskaming Hospital) The Hospital has real information about how the grievor interacts with anxious patients because she does that all the time before they go into surgery. She must explain things to them and get information from them. The Hospital claimed repeatedly in its closing submissions that the grievor agreed that it was fair for it to assess her communication skills during the interview. However, the grievor did not agree that the hospital did that assessment fairly. She also agreed that it was fair for the hospital to assess her ability to deal with difficult patients but again, she did not agree that the hospital did it fairly. In any case, the grievor’s opinion is only that. She has no expertise in the job competition requirements of this collective agreement. Ms. Fox defended her decision that the grievor was not qualified for the position with the claim that the grievor talked about crazy and irrational patients and about holding

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patients down. The Hospital put that evidence to the grievor by referring to interview notes from panel members who were never called as witnesses. The Hospital then objected to those notes being referred to in closing argument and the Association agreed that it would not rely on them. I am, therefore, left with the testimony of the grievor and Ms. Fox and Ms. Fox’s notes. However, Ms. Fox’s notes do not include any of those references. In her testimony, the grievor said she may have referred to patients who are anxious about surgery having crazy or irrational ideas. She also said that she may have said something about holding down a patient’s arm to start an IV or holding their hands so they do not scratch their eyes when they are waking up from the anaesthetic. I find that Ms. Fox, overreacted to the grievor’s use of the words “crazy” and “irrational” and if she got the impression that a nurse with 15 years of experience was talking about abusing patients she should have asked for clarification. However, Ms. Fox’s reaction was related to her general criticism of the grievor for using what she considered to be unprofessional language. People participating in an interview panel will certainly get an impression of the candidate but one of the most important reasons for ensuring the collective agreement provisions are followed is that they diminish the likelihood that a person is found not to be qualified for a position because of a subjective reaction to the way she presents herself in the interview. Of course communication is important but it is the ability to communicate with patients, doctors and co-workers on the job that has to be measured. Thus, if the Hospital wanted to know how the grievor would explain something to a patient it could provide a scenario that requires that type of communication rather than judging how she communicates generally in an interview. The Interview Did Not Assess the Candidates Against the Job Duties and the Four Criteria Set Out in the Collective Agreement The interview was not structured to assess the candidates against the four criteria in the collective agreement. Furthermore, many of the questions were general in nature and were not specifically based on the duties and qualifications set out in the job posting. The Hospital made no attempt to identify the four collective agreement criteria and figure out what questions to ask to assess each one. It also made no attempt to assign a weight to each of the four criteria. The factors do not have to be weighted equally but each one must be considered and given some weight. The Hospital does not claim that it specifically addressed the four criteria but it says that the grievor had the opportunity to address them in answering the questions. However, the collective agreement requires that candidates be compared and assessed on those criteria so they need to be identified and weighted. The questions must have suggested answers that bear a relationship to the potential number of points for the question. That structure is necessary for an objective determination of whether the grievor was qualified. The failure to structure the interview that way meant that the interview result was unreliable. The Questions Measured the Candidate’s Ability to Remember an Anecdote on the Spot Instead of her Skill, Ability, Experience and Qualifications Scenarios are generally a more appropriate way to assess skill and ability in an interview and the grievor did better on those. Other questions that were superficially related to skill and ability were less appropriate because they relied on the grievor being able to immediately retrieve an anecdote from her memory. For example, one of the questions

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asked the grievor to provide an example of independent action. That measures the grievor’s ability to recall and describe an independent action more than the ability to act independently. The scores will vary depending on the candidate’s ability to recall and recount an example rather than because one has greater skill or ability than the other. (See Greater Niagara General Hospital) The same can be said for the questions about difficult patients, taking initiative, conflict resolution and several other questions that asked the candidates to remember and describe something from their work experience. If the Hospital wants to rely on such anecdotes it should at least provide the candidates sufficient time to think about their answers. Many of the Answers Ms. Fox was Looking for Were Not Responsive to the Question The answer criteria for some the individual questions built subjective impression into the scoring and were not responsive to the question. For example, one of the answer criteria included for the question about experience was “Demonstrates initiative and positive attitude” which is not a measure of experience. Likewise, one of the answer criteria listed for the question about multi-tasking was “ “Example clear and well described”. Giving a clear and well-described answer does not demonstrate that one can multi-task. The Panel Failed to Probe the Answers to the Questions Ms. Fox testified that the panel did not probe or prompt the grievor’s answers to the questions even though they seem truncated because if they did it for her they would have to do it for everyone. In fact, they should do it for everyone because the interview is a method of assessing the experience, skill, ability and qualifications of the candidates. The more information the panel has the better equipped it is to make that assessment. (See Temiskaming Hospital and Belleville Hospital) A candidate should also ask for clarification if she does not understand a question and should be encouraged to do so at the outset of the process. One of the examples of the consequences of failing to probe an answer was Ms. Fox’s misinterpretation about what the grievor said about difficult patients. Ms. Fox testified that the grievor did not meet the “standards of Women’s College Hospital” because when she was asked about difficult patients she mentioned women who were having abortions. The more reasonable interpretation was that the grievor meant that women in that situation might be upset and that she empathized with them. In any case, before leaping to the conclusion that a nurse who regularly assists in surgeries related to the termination of pregnancies was morally opposed to doing that, Ms. Fox should have at least asked the grievor what she meant. Her failure to do so reflects as much on Ms. Fox’s communication skills as it does on the grievor’s. The Threshold Was Not Set Prior to the Interview The Hospital set the questions and scored them without determining ahead of time what the minimum requirement would be. The failure to do that means that the minimum requirement will be determined after the panel already knows what the scores are and that leads to the opportunity for unfairness in the assessment. The Grievor’s Preparation for the Interview

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The Hospital argued that the grievor’s lack of success in the interview reflected her failure to prepare for it. The grievor did look up the unit and procedure on the website but it asserts that she could have done more research into the procedure or asked to tour the unit. However, it is hard to see how the grievor would have been much more successful in the interview if she had done more research on the procedure. There were no questions about the procedure. Nevertheless, the grievor did approach the interview with a more casual attitude than was warranted. It is not just the Hospital that should take job competitions seriously. The grievor did appear to think that the interview was more of a formality than a necessary step given her surgical experience. That was not wise of her. However, no one on the panel told the grievor that her answers were shorter than they were looking for. She was not told that each question was worth 15 marks, which would have given her some idea that the panel was looking for a fair amount of detail. Of course, a candidate must acknowledge that the people interviewing her are not her actual supervisor and co-workers and try to provide relevant information but the interview needs to be structured to elicit that. Overall the failings of the process far outweigh any fault on the grievor’s part for the way she approached the interview. REMEDY For all of the above reasons, I find that the Hospital violated Article 10.07(c) of the collective agreement because it did not assess the grievor on the basis of her skill, ability, experience and qualifications. The Association submits that I have sufficient information to order that the grievor be placed in the Mohs position. There is no dispute that the grievor has the technical skills required for the position. However, exceptional communication skills are also required. I did not have concerns about the grievor’s ability to communicate when she gave her testimony and could imagine that her unpretentious approach would be welcome and comforting were I a Mohs patient. However, the grievor’s ability to communicate with patients and other staff is no more properly demonstrated by her ability to testify at an arbitration than it is in a job interview. It was a flaw in the competition for the Hospital to rely on the interview to the exclusion of the grievor’s performance reviews or any information from her supervisors about her skills and abilities. I do not have any of that information either. I am, thus, not in a position to determine that the grievor was qualified for the position. It is, therefore, appropriate to order the Hospital to redo the job competition. The grievor and the other original candidate will be the only people permitted to compete. The competition should be structured in accordance with the principles set out in this award. I have not been asked to put any other restrictions on this competition and, therefore, do not do so. However, the Hospital would be wise to ensure that everyone on the panel has an open mind about the candidates’ skill, ability, experience and qualifications or the process may be tainted from the start. The grievance is allowed. I remain seized with respect to any issues that arise with respect to the implementation of this award. Dated at Toronto, February 22, 2016.

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_________________ Laura Trachuk Arbitrator  

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