HomeMy WebLinkAbout1986-1145.Rankin.88-11-29, 2
ONTlRlO EWLOYtS OEU COURONNE
CROWN EMPLOYEES DErONTARIO
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GRIEVANCE COMMISSION DE
SEllLEMENT RkGLEMENT
BOARD DES GRIEFS
TELEPHONE/TE‘tPHONE
(418,588-0688
1 1 4 5 : I~’ a 6
IN TRE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
.Between:
Before:
.OPSEU (R. Rankln)
- and -
The Crown in Right of Ontario (Mfnistry of Correctional Services)
For the Grievor:
For the Rmnlover:
Bearfnms:
Grievor
Employer
G.J. Brandt Vice-Chairperson
I.J. Thomsom Member
P.D. Camp Member
5. Shilton-Lennon Bonnie Ostroski Counsel cava: lutzo, Hayes iG Lennon Barristers and Solicitors
J.A. Wallen Regional Personnel Administrator Ministry of Correctional Services
December 4, 1961 .January 18, 1988
June 15, 1988 October 24, 1988
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The gr levor, Robert Rankln, claims that a job competl,tion
for a position of Senior Shift Officer, classif ied“ as
Correctional Officer 3 (CO31, for which position he was a
candidate, was improperly condlucted “In that dlscriminatio~~ was
used and that the method of filling the vacancy was unfai,r in
contravention of Article 4.3 of the collective agreement. ‘I
Although the grievance itself only requests that the collective
agreement be adhered to,. meetings between. the parties clarified
the settlement ‘requested as including “assignment to the position
retroactive to the date of assignments of the successful-
candidates, as well as all lost salary, and interest at the
current bank rate.. II
It was agreed by the partles that, in the event that the
gr i,evance were to succeed, the Board would remain seised of
jurisdiction in the matter of any consequential relief that would
flow from such a finding.
The competition sought to fill 6 vacancies for the position
at the. Toronto West Detent ion Centre. A Job Opportunity
Bulletin, prepared by Mary Capobianco, Area Personnel
Administrator for’the Metro Region, was posted on July 17, 1986,
stated that the qualifications for the position included a good
working knowledge of relevant legislation, policies and
procedures, supervisory ability, good written’ and oral
communication skills, good physical and mental condition,
willingness to participate in the performance planning and review
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1,;
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mf an acceptable process of subordinate staff and maintenance 0
attendance record.
The grievor, who has been a Correct~ional Officer since I977
with the Ministry, is presently a CO2 at the Metro West.Detention
Centre. Prior to his joining the Ministry he worked for 16 years
in the aircraft industry (of which 5 years were spent in a
supervisory capacity), and .three and a half years with the Royal
Naval Reserve Services in Scotland.
While with the Ministry .he performed CO3 duties in the
Admitting and Discharge Area at the Maplehurst Correctional
Centre in 1982 on an “acting” basis although he was not paid an
“act lng” rate for that period. He ~described his duties there as
being .performed for “one day a week.. .here and there”. In 1984
he served as an acting CO3 for a per’iod of 5 ~months at the Metro
West Correctional Centre at the request of Stan Johnson. During
the time he served in an acting capacity he performed the full
duties of a C03.
For the period May 1, 1985 to April 30, 1986 he received
performance appraisals which indicated that he was performing at
a “satlsfactoryk level on all the skills rated. The supervisor’s
comments stated that he “displays a good knowledge of orders and
routines”. The’ performance appraisal for the next year gave him
a V’satisfactoryt’ rating in 6 of the critical skills rated and a
“consistently exceptional” rating in 4 of the other critical
skills. The supervisor’s comments were favourable. Apparently no
performance appraisal was done for the 1984-85 year.
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The grievor also received some letters of commendation for
various actions which he took in connection with incidents that
had occurred both at Maplehurst and at Metro West. t
In this grievance the Union takes issue with the process by
which the competition was conducted. In order to establish the
basis for the Union's submissions it is necessary to set. out in
some detail the facts concerning the competition.
The job posting invited candidates to submit an application
outlining their qualifications to their Superintendents who, in
t~urn, were asked ~to f?KWaKd the' applications, together with an
assessment and the most recent performance appraisal, to the Area
Personnel Administrator.. The job posting stated that candidates
may be shortlisted -b&sed upon certain pre-selection criteria such
as sati$factory job performance and attendance. It ftirther
stated that candidates may be required to successfully complete a
written examination as part of the competition process.
The persons appointed to the panel to conduct the
competition were,Mr. Douglas Fpulds, who had been seconded to the
Toronto West Detention Centre approximately two months prior to
the competition, Ms Mary Capobianco, and Mr. J. Short, a Senior
Assistant in charge of programs for the Ministry.
MK. Foulds had sate on some 50 interview panels for the
Ministry. Ms. Capobianco had sat on approximately 200 Ministry
competitions of which 24 were for the position of C03. It is not
known how many panels Mr. short sat on, although MK. Foulds
stated. tha .he had participated in a numbeK,,of them.
penitent
institut
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iary, the ways in which an inmate can be released from an
ion, and how strip searches are to be conducted. z
Questions were also asked bearing on. the SUpeKVikOKy
responsibilities of a co3 Over ,OtheK correctional officers.
Finally,the examination contained three questions regulrinq the
candidate to do fine calculations, one of the duties which needed
to be performed by a C03.
The questions for the oral interview were prepared by MK.
Foulds in consultation with Ms. Capobianco. These differed from
the written examination in that the candidate was Confronted with
a hypothetical situation and asked how s/he ,would respond. The.
situations presented included how to deal with a correctional
officer who challenged the authority of a Co3, how to attend to
the needs of an inmate who had been assaulted,'how to deal with
the refusal of an escort officer to transport.an inmate suspected
of having AIDS, and dealing with preserving the continuity of
evidence where drugs are found on an. inmate's person.
The score sheet for the oral examination also had two Other
parts. One ~invited the candidate to describe his/her experience,
education and personal development and to indicate how that was
related to the position; the other' assessed the candidate's
verbal communication skills, overall presentation, and employment
and attendance KeCOKd.
The written examination was marked by Mr. Foulds whose marks
were double checked~by Mr. Short who also reviewed the weighting
that had been assigned by Mr. Foulds to the various questions.
I
The grades in Ithose written examinations were ,availabIe to
the panel when it met on September 2 and 3 to, conduct the 2
individual oral interviews. At the start of each interview each
candidate was told that the written and oral portions of the
examination were to count fOK 50% each, that~ there would be a
number of questions asked'respecting the .duties of a C03, that
members of the panel would be writing down their answers as they
spoke, that all candidates would be asked the same questions,
that questions would be repeated if the candidate requested, and
that candidates would only get marks for what they said in the
interview.
Following the completion of each interview the candidate's
scores'on the interview were added up and averaged with the .qKade
obtained on the written examination to produce a total grade.
The panel,selected the top 6 candidates and recommended to MK.
Walter, the Superintendent that those 6 be awarded the position.
In the combined oral and written examination the grievor
stood second from the bottom. The successful candidates were
Donald Turner, Bradley Corbeil, Nancy Holroyd, Kyle McAKtur,~ J.
Kennedy and Randolph O'Brien. With the exception of MT. O'Brien
the gr.ievor had greater seniority than all of the rest.
All of the. six candidates were notified of the~se
proceedings. Some attended and partictpated in the :proceedings
through questioning the grievor on the completion ~of his
evidence.
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We turn now to the claims advanced by the grievor and the
Union with respect to certain flaws in the competition. 1; is
helpful to outline these claims, in general, before setting ‘out
the evidence cldduced in relation to these claims.
Counsel for the’ IJni on identified seven respects in which the
competition was, in her submission; flawed.
First, the screeni ng criteria were improperly applied and
some candidates were permitted to sit,the examination who should
have been excluded.
Second, it is claimed that some of the candidates had access
‘to certain documents, ~described .in the hearing as “mystery
documents”.which gave an advantage in the examination.
Third, it is’claimed that there were certain irregularities
in-the conduct of the written examination which gave certain
candidates an advantage.
Fourth, it is claimed that the written examination was
unfair in the weight that it assigned to the guestions concerning
the calculation of fines.
Fifth, it is claimed that there were irregularities in the
manner by which the oral interviews were conducted.
Sixth, it is claimed that in various respects the grading of
the examinations was conducted in a “sloppy” fashion.
Seventh, it 1s. claimed that neither MI. Foulds nor Ms.
Capobianco adequately,addressed their minds to the question of
“relative equal,ity” in coming to a conclusion as to which of the
candidates should be selected.
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We turn now to the evidence adduced with respect to these ,
allegations. It i.s claimed that three of the candidates, ‘.Mr .
-Kennedy, Ms. McArtur and Mr. Corbeil, should not have
been
permitted to .participate in the competition.
It is argued that the Mr. Kennedy had a poor attendance
record and did not have sufficient experience for the position.
The grievor did not know Mr. Kennedy ‘s- attendance record but
based his conclusions on the fac,t that he had worked with Mr.
Kennedy in the past and that he had been absent frequently owing
to certain personal problems..
It was suggested that I&. Mcartur should not have been
allowed ‘to enter’ the competition as she had been allowed a one
year sabbatical and that, when she returned, she spent 3 years~on
permanent mid-night shifts asa result’of which, in the grievor’s
opinion, she had less contact with inmates and consequently
lacked the requisite experience. It was further alleged by the
grievor that, in a conversation he had with Mr. Walter, the
latter had said to him that had he known of the midnight shifts
he would never have approved the promotion of Ms. Mcartur.
Finally, the grievor claimed that Mr. Corbeil should have
been screened out of the competition as he was related by
marriage to Mr. Short, a member of the panels. Mr. Short did not
ylve evidence and neither Mr. Foulds nor Ms. Capobianco were
aware of that relationship. The grievor also claimed that Mr.
Corbel1 failed to meet the pre-screening requirement that he be
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in good medical condition. Mr. Corbeil had been off work from
June 1, 1986 to the date of the competition in late August
recovering from a gall bladder operation. In fact. he has not’,.yet
returned to work although his absence now is related to a disc
problem. His position is currentl,y being filled in on an acting
basis, although not by the grievor. The grievor regarded Mr.
Corbeil as having been extended special treatment, particularly
in view of the fact that he, the grievor;had been screened out
of an earlier competition because he had his arm and hand in a
cast as a result of a.work related injury. It was the grievor’s
evidence that he had been told both by Mr. O’Keefe and by Dr.-
Cheneau that he would be ineligible for the competition.
Mr. Foulds and Ms. Capobianco stated that they did not
regard t~he absence of Mr. Corbeil~ due to a gall bladder operation
as of the sort which should disqualify a candidate. They saw it
as a single occurrence and, having regard to the medical reports
at the time, which Indicated a~favourable prognosis, they made a
!‘judgment” call to permit him to compete. Ms. Capobianco stated
that the kind of poor medical condition which would have led them
to screen a candidate out wils one in which the applicant was off
for an extended illness for 6 months and had applied for benefits
under the Long Term Income Frotection Plan. At the time of the
screening Mr. Corbeil h.3.~ (only been off work for approximately
two and one half months and that his absence was due to surgery
from which he was expected to recover. She also confirmed that,
in the .letter from the supervisor accompanying the application,
it was indicated that Mr. Corbe i
days in, 1985, although that fact
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1 had been absent for ten sick
apparently did not influence the 2
decision to permit Mr. Corbel1 to enter the competition.
The second allegation that the competition w&Y “flawed”
involves a claim that some of the candidates had access to
mater ial, including the questions and answers on the written
examination, prlor to sitting the examination. In support the
Union filed with the Board a number of exhibits. Exhibit 20~
consisted of 31 typewritten questions with accompanying answers
written in longhand. The grievor stated that he obtained this .
document from David Grabish, a CO 2’at Toronto West Detention
Centre, sometime ‘after the competition.- Mr. Grabish testified
that he gave. it to the grievor around July of 1987
(approximately 1 year after the competition) and that’he had
received it from Mr O’Brien (one of then successful candidates)
who, when asked by Mr. Grabish where he (O’Brien) had received
it, admonished Mr. Grabish to keep it quiet but that “someone is
taking care of me”.
The grievor, who believed this document to be a co 3
examination, did not know how it came into the possession of Mr.
O’Brien although he believed that he (O’Brien) .had received it
from a Mr. Rollock, a CO 3.. Nor did the grievor know whether or
not Mr. O’Brien had it in his possession at the time that he
participated in .the competition. .Mr. O’Brien, who attended at a
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number of the hearings, did not give evidence with respect to
this document. >
For his part Mr. Foulds stated that he had never seen
Exhibit 20 before and that he did not use it when he prepared the
questions fork the examination.
A second document introduced into evidenc~e was described as
a condensation of the Manual of Standards and Procedures. This
is a 2 volume work which sets out the policies and operational
guidelines of the Ministry. Although t,here are not restrictions
on access to the Manuals while employees are’ at work, it is
Ministry policy not to permit them to be removed from the-
institution. However, it is recognlzed that employees may, from
time to time, photocopy portions of the manual for their own
personal uses such as preparing for examinations. In addition to
this document each institution within the Ministry also. has
Standing Orders, a copy of which is available to each member of
the staff.
The grievor testified that he received this “condensation”
of the Manual from Violet Blackman after the grievance had been
filed and that Ms. Blackman had told him she had received it from
Mr. Rollock who, in turn, had told her not t’o show it to anyone.
The, gr levor was of the opinion that this document. was made
avallable only to the “chosen few” who were -being given
preferential treatment by the Ministry. It was his belief that,
since candidates were not permitted to take’ the Manual of
Standards and Procedures home for the purpose of preparing for a
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competition, anyone in possession of this “condensation” of that
manual would have a significant advantage over those who did not. i
In connection with the application of the po 19 cy
prohibiting staff from taking the Manual home it was the evidence
,of Mr. Grabish that he had seen an employee, Rick Earl, take the
Manual home and that when he (Grabish) was refused similar
permission to do so by S. Johnson, a Senior Assistant
Superintendent, he related the Earl incident and was told that he
could take it home but that he should not tell anyone.
No evidence was called by the Ministry to rebut these
allegations. Mr.. Foulds conceded that the “condensation” would
be a very useful study tool for the examination if its content
was accurate. However, as he had not seen the document before he
had no opinion as to its accuracy. He further testified that he
did not refer to it for ~the purpose of preparing the examination
questions. Indeed he though it must shave been written after the
competition had been conducted.
A number of other documents were filed as exhibits for the
purpose of informing the Board as to..the kind of information that
was in the instltutlon at the time of the competition. All of
these documents consisted of various questions (and in some cases
corresponding. answers) relating t-0 the duties performed in
var lous classifications. Some related to the CO 3
classification; others ,to the OM 14 classification. Mr. Grabish
testified that he received these documents from a Mark Ford, with
whom he had been studying for a competition and that he thought
he received
matter of th
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them after the competition which is the subject
,is grievance . He did not know where they came f.rom i
but thought that Mr. Ford had received~ them from a Tracey Jo&s,
who was a CO 3.
The thi~rd alleged r’flaw” in the .competition relates to
certain irregularities in the conduct of the written examination.
It was claimed that some of the ~~candidates, McArtur, Kennedy,
Cdrbeil and Holroyd; all had calculators in their possession and,
that the grievor did not. The grievor did not raise any
objection at the time of the examination with Mr. Gary Pickering,‘
a staff training officer who was supervising the examination.
However, the qr ievor subsequently objected to Mr. Palmer, the
Deputy Superintendent, and was told that he should have. been
advised that he could have a calculator if he had asked for one.
Mr. Keith Warden, one of the other candidates who was in
possession of a calculator, testified that he had been told in
previous competitions that he could bring a calculator.~ However.,
he could not recall whether or not he had been told this on this
occasion.
The significance of this “irreqularity” is that the
I questions concerning the calculation of fines, on which the
grievor did very poorly, would be easier to do for candidates in
possession of a calculator. The grievor testified that he had
performed this .function, while serving in an acting capacity,
with the aid of a calculator and that he had no difficulty in
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doing it. .However, he claimed that the fact that he did not have
a calculator during the examination prevented him from answering
these questions accurately. We return to this matter' later. .x
A second allegation involving the conduct of the written
examination concerns a claim that MK.
Kennedy was observed to
have left the examination, gone to the locker room, looked at
some papers in his locker and returned to the examination room.
The grievor testified that he finished the examination early and
was in the locker. room when he observed MK. Kennedy enter the
room, some 5-10 minutes.later, look at some papers and leave.
The grievor waited in the locker room land observed MK. Kennedy-
repeat these actions on three more occasions.
This evidence was supported by MK. Daniel Beattie; who also
sat the examination, -and ,who stated that.,Mr. Kennedy left the
examination room and returned on 4 separate occasions.. ACCOKding
to Mr'. Beattie, on each occasion Mr.
Kennedy obtained .the
permission of MK. Pickering However, he made no complaint to
Mr. P,iCkeKing OK t0 anyon? e 1 se. MK . Warden also testified that
he saw MK.
Kennedy get up, ask MK. Pickering for permission to
leave the room, and leave the examination room on approximately 4
occasions. He though that Mr. Kennedy was absent from the
examination room for approximately 2 minutes on each occasion.
All of the candidates who attended at the hearing were
adivsed that they would br given an opportunity to make a sworn
statement to the Board concerning any of the allegations made
against them. Mr. Kennedy, who attended-the proceedings and Who
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participated in some questioning of the grievor at the hearing,
informed the Board of his intentions so to do. However, he did r'-
not attend the last day of hearing. Consequently no evidenceiwas
heard from him concerning these allegations. NOK was MK.
Pickering called by the Ministry to give evidence as to his
knowledge of this incident.
The fourth allegation relates to the content of the
questions on the written examination. The grievor conceded
generally that the examination 'was a fair one and that the
questions related to the duties of a CO 3. However, he claims:
that the weight assigned to the questions requiring the
calculation of fines, viz, 25% of ,the written examination (OK 12
l/2 % of the total examination) is far in excess of.the weight
that 'sh,ould have been assigned. The evidence established 'that
this function was performed by members of the clerical staff on
the.day shift, who carry out the function by the application 0f.a
formula with the use of a ca~lculator. On other shifts and on
week-ends it is done by the CO 3. Fifteen marks out of a total
of sixty marks for the. written examination (i.e. 25%) were
assigned to these. questions. It was suggested to MK. Foulds and
to Ms. Capoblanco that, having KegaKd t0 the fact that the
function is a relatively .routlne one capable of being performed
by clerical staff, such a weighting was out of proportion to the
difficulty of the task and the frequency with which it is
performed by CO 3s. Both Ms. Capobianco and MK. Foulds
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disagreed, claiming that the function’ was an important one and Y.
had to be performed accurately. i
The next claim to be addressed is that SUKKOunding the
co.nduct of the oral interview. The Union alleges two respects in
which the oral portion of the competition was faulty. First, it
is claimed that some of the information obtained from the oral
interview could have .been obtained from personnel files and the
fact that, notwithstanding the objective nature 0.f such
information, there were different scores recorded fOK this
information, indicates ‘2KKOKS in the grading of the oral-
examination. Secondly, it is claimed that, as a result of
certain conduct which the Ministry. permitted, OK at least did not
discourage, some candidates had an advantage over Others in the
oral interview.
With' respect to the first of these claims MK. Foulds
testified both as to the design and the administration of both
the written and the oral examination. He stat,ed that it was
common practice in the Ministry to have written examinations.
HOWeVeK, it was his view that it was fairer to candida,tes to have..
both a written and an oral portion, each of which was weighted at
SO%, in OKdeK that candidate who, for one reason OK another did
not do well on the written portion. were not disadvantaged.
MOKeOVeK, he claimed that having two examinations gave the
Ministry more infOYIWtiOn on which it could base Its decision.
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Finally, it gave the panel an opportunity to assess the oral and
written skills of the candidates.
The complaint of the IJnlon concerning the design of the oral
examination relates to the inclusion therein of questions, the
answers to which could more easily, and more accurately, have
been obtained from consulting the personnel KeCOKdS. As noted
above, the ,oral examination sheet was broken down into three
parts. Part 1 sought essentially biographical information from
the candidate concerning experience, education and personal
development as related to the position. Part 2 consisted of 8
"situational" questions .in wh'ich a response was sought concernlnq-
how the candidate would deal with situations that might typically
arise at the woyk'place. Part 3 consisted of 4 units. The first
2 assessed the candidates for their verbal communication skills
and overall pKesentation;the latter two KeCoKded information
concerning the. candidate's employment KeCOKd (performance
appraisals and discipline record) and attendance.
The rating sheet awarded a maximum number of points fOK
experience, education etc. and a sliding scale for employment
record and attendance. Thus, with respect to biographical data,
/
over 2 years experience as a.CO 2 achieved a maximum of 5 points,
experience as a CO 3 achieved a maximum of 5 points the precise
level to be determined by the amount of that experience, etc.
Similarly the point range for the employment record awarded 2
points for satisfactory performance appraisals and 4 points fOK
performance appraisals that were better than satisfactory.,
Further a range of points was established depending on the
frequency and the nature of the discipline. i
Mr. Foulds was cross-examined on this method of obtaining
information which was essentially a matter of objective fact on
the record. He admitted that the biographical information could
have been obtained by requiring the candidate simply to fill in a
form. However, he stated that there was some judgment involved in
the .assessment of the relevance and weight to be attached to
certain transferable experience and the assessment of the nature
and significance of any acting CO 3 experience,that a candidate
might have had. For example, he awarded the grievor 7 out of 18
points for experience since, in his view, the grievor had not
served in an acting CO 3 capacity long ‘enough to qualify for
acting pay and his transferable experience a supervisor ‘in the
aircraft ‘industry was, ins Mr. Fould’s opinion, of margina 1
relevance. Conversely, Ms. Capobianco awarded him 12 out of 18
based on her own and different assessment of the weight to be
given to the grievor’s acting assignment and transferable
experience .
Candidates were not asked for the information on employment
record (performance appraisals Andy discipline) during the
interview. That information was obtained. from the file.
However, they were asked for information concerning attendance
notwithstanding, that thjs too could have be~en easily obtained
from a rev~iew.of the files. That information was double checked
by reference to the files. When pressed as to why the Ministry
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followed that practice Ms. Capobianco suggested that it offered
an opportunity to test both the candidates memory and his/her d
honesty. However, the double checking process appears to have
failed to produce an accurate result in at least one instance.
ems. Capobianco scored Mr. Corbel1 as only being absents for 2 days
based on what he had told her in the interview. Yet the letter
from his supervisor accompanying the application spoke of 10 days
of absence in 1985. He was also absent for 5 weeks for the gall
bladder operation.
That portion of Part 3 which awarded some marks for verbal
communication skills and overall presentation was conceded by-
Mr.. Foulds and Ms. Capobianco to be the most subjective of all of
the skills assess&d. However it was seen as an important skill
for someone who would be exercising supervisory authority over
others. The Union did not take issue with this portion of the
oral interview.
The second claim of “irregularity” surrounding the oral
interview relates not to the design of the interview but rather
to how it was conducted.
The interviews were sc heduled over a two day period and were.
held at half hour intervals. The gr ie,vor stated that as some
candidates came out of the examination room they told candidates
who had not yet had their interview what questions had been asked
of
them’. Two candidates, Mr. Godln and Mr. Needles, in
part lcular, were mentioned .~s having had an advdntage as a result
of this practice. The grievor was scheduled to be interviewed
21
second last but chose not to part’icipate in what he regarded as
improper conduct. i
This evidence was supported by Mr.. Beattie, who was ‘the
first candidate to be interviewed, and who stated that he was
asked by Mr. O’Brien for information on the questions that had
been asked. He declined to assist. Later that day and the next
day he overheard candidates who were waiting to go in for their
interview speaking about the same questions that, he had been
asked on his interview. When he was informed by Mr. Short that
he had been unsuccessful in the competition he raised his
concerns and was told that the Ministry could not be faulted for _
the conduct of members of his peer group.
The sixth allegation of the Union is that the marking of the
examinations showed evidence of “sloppiness” on the part of the
members of the panel. As noted above the written examinations
were marked by Mr. Foulds and checked by Mr. Short. Following
the completion of the oral interview each member of the panel
tabulated all.of the marks awarded for each of the three portions
of that examination. Each of the separate scores of the three
members of the panel were averaged together to produce a
composite grade for the oral interview which was the~n added to
the candidate’s grade in the written examination.
The f.ollowlng.table sets out the grades of the 6 ,successful
candidates and. those of the gr levor for both the written
examination and the oral interview and the final grade.
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Name
1. R. O’Brien
2. J. Kennedy
3. K. McArtur
4. 8. Corbeil
5. D. Turner
6. N. Holroyd
7. R. Rankin
Written Oral
70 50 60
fi6 62 64
70 60 65
61 73 67
88 ~6 0 78
64 64 64
39 38
Final
38.5
The Union took particular issue with Mr. Foulds’ grading of
question 10 of the writ.ten examination. The grievor was awarded
a grade’ of 0 with annotation that the question was “not
answered”. However, Mr. Foulds awarded a grade of 1 out of 5 to
Mr. Corbei.1 for an answer which Mr. Foulds’ own written comments
on the paper indicated that he regarded it as equally
unresponsive to the question being asked. Similarly he awarded a
grade of 2 out of 5 to Ms:McArtur for an answer which Mr. Foulds
stated was “not complete”. When pressed on these~inconsistencies
Mr. Foulds was compelled to concedes the obvious, that is, that
marking is highly subject.lve and impressionistic. When pressed
further to concede that the grievor’s answer, although admittedly
much more brief, was as responsive- to the question as were the
answers of Mr. Corbeil and Ms. McArtur, Mr~. Foulds conceded that
“maybe another mark” could have beengiven to the grievor.
Three other simple arithmetical errors of addition were
uncovered by the Union in its review of the examinations papers.
Moreover, all three of the panel members miscalculated the marks
that should have been awarded to Ms. McArtur in respect of her
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attendance record, In addition reference may be made to the
apparent error; referred to above, of Ms. Capobianco in assessing i
Mr. Corbeil’s absence .at only 2 days when the records would
indicate that he was absent for 10 days in 1985. It shbuld be
noted that none of these errors had any effect on the placement
of the candidates in the competition.
The last claim advanced by the Union in support of the
argument that the competition was flawed concerns what the Union
regards as the failure, or inability, of either Mr. Foulds or Ms.
Capobianco to understand and/or apply the concept of “relative-
equality” as required under Article 4.3 of the collective
agreement.
Having regard to the wide divergence between the scores of
the grievor as compared to .those of the six successful
candidates,~. neither Mr. Foulds nor Ms. Capobianco regarded the
grievor as “relatively equal” to any of them. ‘Thus, in their
estimation, his greater seniority did not entitle him to any
claim to one of t.he positions.
Both were cross examined as to their understanding of the
meaning of “relative equality”. ‘Mr. Foulds conceded that it was
difficult to measure; that the judgment is “somewhat subjective”;
but that where there is a wide spread in the marks (eq. 15-20
marks) it is not difficult to conclude that relative equality
does not exist. as between persons so separated in their grades.
He suggested that, as a rough,rule of th,umb, candidates who
.
.
i
24
scored within 5% of each other would be relatively e;ual,
although he conceded that others might set that range of
permissible difference in scores at, for example, six or eight
per cent.
Ms. Capobianco defined “relative equality” as occurring
where a person satisfactorily demonstrates the knowledge and
ability to effectively perform the duties of the position. She
was unable to establish specifically the threshold for
determining whether or’ not a candidate had satisfactorily
demonstrated the requisite knowledge and ability. In her opinion
,that depended on the nature of the position, the needs of the .
institution, the calib~re of the staff, the number of positions
and the number of’incumbents. Alt.hough she stated that the sane1
did not have a particular benchmark that it applied, she thought
that all of those selected met the threshold requirements.
However, she conceded that Mr. Turner, (with a grade of 781 and .
Mr. O’Brien (with a grade of 601, both of whom were selected,
could not be reasonably said to beg “relatively equal”. Yet when
asked who she would regard as relatively equal, she replied that
all of those above the threshold were relatively equal in that
ali had demonstrated the requisite knowledge and ability.
However, she had difficulty in defining what that threshold was.
When asked by members of the board what the panel would have done
if all of the grades had been 30% or lower she replied that none
would have been ,awarded the job. To that extent she appeared to
.
25
concede that there was some benchmark and .she eventually
‘described it as “60. or so”.
A’rsument
The Union submits that, given the grievor’s prior successful
performance, in an acting capacity, of the duties of .a CO 3, and
his performance reviews and commendations, it has established a
prima facie,-case that the grievor possessed the “qualifications”
and “ability” to perform the required duties within the meaning
of Article 4.3 of the collective agreement. It is further
submitted that the flaws in the competition for the position were
of.such character that the results of the competition, insofar as,
they reflect poorly on the grievors ability and qualificationsi
should be discounted and the grievor should be awarded the
position with retroactive relief. . In the alternative it is
submitted that the Board should direct that the competition’ be
re-run with appropriate conditions.
A number of submissions ‘were made with respect to the
“flaws” in the competition. It was suggested that Mr. Corbeil
should not have- been permitted to enter the competition given the
fact that he did not meet the screening criteria of good
attendance and good mediiz.11 condition. It was further suggested
that the treatment 0E nr . Corbeil in this respect should be
considered in the context of his relationship to Mr. Short and in
light of the eviderlc+: that he WJS awarded more marks for
attendance in apart 3 I, E the oral interview than the records
a
26
indicated he ought to have received. This “preferential”
treatment of Mr. Corbeil was contrasted with the uncontradicted
evidence of the .grievor that he, in an earlier competition, “.had
,been screened out because his hand and arm were in a cast.
It was submitted that these facts demonstrat,ed a lack of
consistency on. the part of the Ministry which permitted its
actions to be characterized as “arbitrary and discriminatory”;
that a. competition should not only be fair.and unbiassed b,ut must
also be ‘seen to be so by those who participate in it and the
inclusion. of Mr. Corbeil in the competition robbed it of that
feature.
Secondly, it was argued that the ‘25 % weight attached tom the
calculation of fines was out of proportion to the significance of
the duties. The Position Specification includes fine
calculations as one of 12 functions which, in totality, represent
only 5% of the job. Moreover, the function is generally
performed by clerks and is done typically by the mechanical
application of. a formula by the use of a calculator.
With respect to access to calculators it was submitted that
those applicants who had been told that calculators would be
permitted in the.examination had an. unfair advantage over those
who were not so advised; that there was. a duty on the Ministry
either to inform all candidates that calculators~ were permitted
or not permitted as the case may be; and that the inconsistent
.
practice with respect to this matter reinforced the belief that
L
.
27
the Ministry was, in effect, pure-selecting the people that it
wanted to succeed in the competition. >
It was suggested that this had a distorting impact on’%the
grievor’s results since the evidence established that he had in
the past been quite capable of calculating fines when he had a
calculator in his-possession. It was argued that had he had a
calculator in the examination, he would have achieved
significantly better than the score of zero on this part of the
examination. Thus, his grade on this part of the examination
was, it was submitted not a reflection of his true ability but
rather a .direct consequence of the fact that he, unlike some of.
the others, did not have a calculator.
As ‘for the’ irregularities in the conduct of the oral
exami,nation, that is, the exchange of. information between
candidates concerning the questions being asked, it was conceded
by the Union that some of the responsibility for that must rest
with the employees in the competition. However, it was submitted
that the Ministry had some responsibility in this regard to at
the very least caution candidates against revealing the questions
to others, and impose sanctions for breach, or conduct the -orals
interviews at some place where traffic was not so heavy;~ or vary
the questions on the interview such that this kind of conduct
would not help others.
The Union also took issue with the design of those ‘parts of
the oral interview wherein information which was of an objective
nature, and which could be obtained from personnel files, was
._ .
29
made part of the interview process. As a result of that there
was a both some variation in the marks given to information which
ideally should not be subject to any variation and some errorskin
the marks assigned (eg. in relation to the attendance record of
Mr. Corbeil). Counsel characterized as “absurd” the suggestion
by Ms. Capobianco that the memory of candidates could be
adequately tested by asking them how many days they had been
absent.
With respect to the “mystery” documents counsel conceded
that it was not clear exactly what these documents were.
However, it was submitted that it was clear that they would be -
helpful to candidates preparing for an examination, particularly
where the policy df.the Ministry wasto forbid anyone from taking
the Manual of Policies and Procedures from the premises.
Reference was also made to the evidence concerning the secrecy
surrounding the. possession of these documents by some of the
candidates. It was suggested that the circulat’ion of these
documents was sufficiently widespread that the Ministry either
know or ought to have known of it and have taken action to bring
itto a halt. Failure to do so resulted, in the Union ‘5:
submission, in a competition which was unfair to some.
The incident involving the frequent departure of Mr. Kennedy
)
from the examination room, (the evidence on which was
uncontradicted either by Mr. Kennedy himself or by Mr. Pickering,
who supervised the examination), was characterized by the Union
as further supporting the claim that the Ministry was prepared to
29
turn a blind eye to conduct which clearly gave some candidates an
advantage over others. It was suggested that the Ministry had a ,
direct responsibility to ensure that adequate security measures
were in place and were consistently applied and that, through Mr.
Pickering, it failed in its discharge of that responsibility.
The “sloppy .marking” was seen as disclosing a cavalier and
negligent attitude to the whole competition and simply
exacerbated the other flaws demonstrated.
Finally, it was submitted that neither Mr. Foulds nor Ms.
Capobianco had any understanding, of the meaning of relative
equality and that, consequently, it could not be said that any.
serious consideration was given to seniority. Counsel asked the
Board to find that the Ministry could not be said to have run the
competition in accordance width Article 4.3 when the panel had no
working definition of relative equality which it was able to use
in administering that article.
,
Counsel for the Ministry responded to each-of these claims.
The prolonged absence of Mr. Corbeil was due to surgery from
which it was expected, albeit incorrectly, that he would recover
and, Mr. Foulds could not be faulted for basing his decision on a
positive prognosis at the time. As. for Mr. Corbeil’s
relationship to Mr. Short it was noted that Mr. Short was not
involved in the screening and that neither Mr. Foulds nor Ms.
Capobianco, who did the screening, were aware of the
relationship. As fo r the alleged inconsistent screening out of
,
30
the grievo.r, it was suggested that the ~evidence of that was
hearsay and thatit was unrelated to this competition. ,
The weighting of 25%. to the fine calculations was defended
on the basis ~that’ the function was an important one which had~ to
be performed by CO 3s on weekends and night shifts. It was noted
that the grievor made no complaint at the time about not having
been permitted to have a calculator and that, although he claimed
that.he did not have enough time to complete the examination, he
nevertheless left the examination early. It was noted
furthermore that neither Mr. Turner nor Mr. 0;Brien had
calcuIators; yet each of them received a perfect score on the-
fine question. Similarly, others who did have calculators did’
not do as wel.1 ‘as Turner and O’Brien, suggesting that the
availability of a calculator had less to do with the result in
that question that the IJnion, in argument, suggested.
The failure to prevent candidates who had been orally
interviewed from discussing the interview with others was
.characteri~zed as a “peer problem” over which the Ministry had
very little control. In response to the suggestion from Union
counsel that the Ministry might have varied the
argued that this could have led to a CJa
examination was, for that reason, unfair
questions it was
m that the oral
n that not all
i
i
candidates were being ,;ivs?!: the same examination.
Similarly, the cirr.ulation of the “mystery” documents was a
matter which, counsel :;::bmi tted, was beyond the control of the
Ministry.
i
mark
31
Counsel also disagreed with the suqqestipn that the “sloppy?’
ing indicate a cavalier and’ negligent attitude to the conduct
of the competition. Rather it was suggested that with :.. 1Y
candidates, a written examination, and three different panellists
ratinq an oral interview, there bound to be some flaws. The
question is whether the flaws were significant enough to warrant
.vitiating the whole competition.
AS for the claims that neither~Mr. Foulds nor Ms. Capobianco
had a clearly understood definition of relative equality it was
argu.ed that the collective agreement does not define relative
equality and ~that it is a concept which is not easily understood. -
It was noted .that, in any event,, the differences, between the
successful candidates and the.~ grievor were of such a magnitude
that, on any reasonable assessment of relat’ive equality, the
qr ievor could not be said to be relatively equal to the
successful candidates.~
It is well established -in the jurisprudence of the Board
that, for the,Board to be able to conduct’the comparison required
by Article 4.3, the information relative to the qualifications
and ability of the respective candidates must be “collected in a
systematic and comprehensive manner” in order that a “fair and
reasonable assessment of the relative strengths of the cand~idates
can be undertaken and the final selection made”. (QJ.J&Q (Y/78).
The Board has amplified on this requirement in w
(414/831 where the various criteria by which to judge a selection
process are’set out. The Board there
be evaluated on all the relevant quali
out in the Position Specification;
assess the candidates should
32
stated that candidates must
fications of the job as set
i
that the methods used’, to
address these relevant
qualifications; the irrelevant factors should not be considered;
that members of the selection committee should review the
personnel files of all the applicants; that the applicant’s
supervisors should be asked for their evaluations; and that the
information should be accumulated in a systematic way.
With respect to the meaning of “relative equality” the Board
has recognized that ?zelative equality will be established where.
the scores in an unflawed, competition are “within a narrow range”
or “approximately equal” (Reuben McGarrell 687/81) and that where
one employee is more qualified by another “by a substantial and
demonstrable margin” relative equality will not exist. (Keith
Anderson, 105/86)
Derision
It is evident from this lengthy review of the evidence that
the grievor and his Union have made a ,number of allegations
concerning the conduct of the competition. Moreover, as a matter
of evidence, we find that the Union has established a factual
basis for its claims. We do not, however, regard all of the
defects .alleged to be of such a character as to be fatal to the
competi.tion.
,
?
33
For example, the circulation of the “mystery” documents is a
matter over which the Ministry has little control. It is not ,
surprising to us that such documents would be available from past
competitions. Nor is it surprising that candidates would resort
to them for the purpose of preparing for an examination. Indeed
such action would be prudent. Moreover, there is no evidence
which would indicate that these, documents were made available to
‘. selected candidates by officials of the Ministry responsible ~for
the competition.
Similarlyi the circumstances surrounding the way. in which
the oral interviews were conducted wherein candidates not yet-
intervietied had advance.information as to the questions that were
asked ‘in the interview is not a matter for which the Ministry can
be held responsible. We do not believe that the Union can come
before. the Board and rely on misconduct by its own members as a
basis for challenging the conduct of the competition. Nor do we
think that the Ministry should be required to structure a
different set of quest ions for each candidate in order to
maintain the secrecy of the process. We .agree with the argument
advanced by counsel for the Mini,stry that su’ch a course of action
would have led to charges that different candidates were not
being assessed on the basis of the same'standard.
The “sloppiness” in the marking is a matter which concerns
us. However, one should not lose sight of the reality that any
grading of an answer is necessarily subjective and prone to some
potent ial ~"er,ror":
34
The Union took issue with Mr. Foulds' grading of question
10 on the written examination in which he gave the grievor a i
grade of 0 whrle giving other candidates -grades of 1 and2
respectively. Mr. Foulds candidly admitted that he might have
given the grievor an extra mark. We do not regard that admission
as undermining the integrity of the marking process. Upon a
comparative examination of'the answer of the grievor and that of
the other candidates it is clear that there are some differences
which would reasonably justify the award of a slightly higher
grade. We do not regard it as our role to enter into a close
'Ire-marking" of the examination papers.
The errors in addition of the marks were unfor,tunate and
certainly preventAble by the taking of greater care. .However,
they were minor.errors, few in number having regard to the number
of candidates and the number of questions and not of a character
to warrantupse~tting the competition.
Nor do we consider it unfair for the Ministry to have
extracted information of a biographical nature, which information
was available through a consultation of the records, through .the
oral interview. It was argued that this exposed candidates, and
particularly the grievor, to the risk that matters of objective
fact concerning which there should be no variation in assessment,'
might result in such variations depending on the extent to which
the candidate was successful in accurately informing the panel on
these matters. While much of the information was factual there
was some assessment involved in attaching weight to such acting
25
experience or transferrable expor ience that candidates had..
Moreover, all candidates were treated the same and given the same ,
opportunity to inform the panel concerning the relevant
biographical data. It may have been more efficient to have
acquired the information in some other .way. However, we do not
see the decision to obtain it in this way as having the effect of
undermining the effectiveness of the "system" established to
measure the relative qualifications and abilities of the
candidates. 1
Finally, we,do not regard the inability of either Mr. Foulds
or Ms. Capobianco to articulate clearly an understanding of the-
meaning of "relative equality" to be fatal to the competition.
It is axiomatic to state that it is not $1 concept whose meaning
can be easily articulated. What is important is whether or not
.they correctly and properly applied Article 4.3 of then agreement
in assessing the grievor against.the rest of the candidates. Had
the grievor ranked more closely than he did to the successful
cand~idates we might have had some greater concern as to whether \
or not Mr. Foulds or Ms. C.3.pobianco had seriously directed their
minds to the question. However, his score fell so far short of
that of the last of the six successful candidates that, however
I* f uzq”
they may hate tieen about the "benchmark" or about the
meaning of "relative equality", there could be II 0 serious
question that, on the tdoir; of the scores alone (and leaving
aside any guestion as t :1 whether or not those scores were an
accurate reflection of t. he grievor 's relat&ve ability and
36.
qualifications), the grievor .d was not. relatively equal to the
successful candidates. Therefore, his seniority did not become a i
consideration.
We .do regard the other defects in the process to be of
greater substance and to warrant remedial relief on our part.
Of .particular concern is the weighting .assigned to the
question concerning the calculation of fines and the failure to
ensure that all candidates had an equal opportunity to
demonstrate their abilities in that respect. The cases cited
above indicate that the competition must test for "relevant".
qualifications. Certainly it is not claimed that the calculation
of fines is an "irrelevant" skill. Indeed it is not.. However,
we believe that some care must be taken to' ensure that, in
designing a test, the weighting assigned to particular parts of
the test bear a reasonably close relationships to the .duttes to be
performed, both in terms of the difficulty of those duties ,and
the frequency with which they have to be performed. A testing
procedure which overemphasized infrequently performed and
uncomplicated duties would not provide the Ministry with the kind
of information which would permit it to make the sort of informed
judgment that it is required to make in these.cases.
In the written examination designed by Mr. Foulds he
weighted the questions concerning the calculation of fines at a
full 'twenty fi,ve per cent. Neither he nor Ms. Capobianco were
able to meet the Union's claim that this was excessive. The best
37
they could say is that this duty was an important.one that had to
be performed, concerning which there is no dispute. ,
Yet, when regard is had to the fact that in the day sh’ift
the duties are performed “by clerical staff by the relatively
simple application of a formula using a calculator, it becomes
clear that, in the larger context, these duties assume less
significance than the weighting given to this question would
suggest.
Standing alone we might not. have regarded the assignment of
this weight to this quest ion as constituting a flaw in the,
competition. However, it did not stand alone. Some of the .
candidates had calculators~and some did not. Admittedly there is
no evidence to indicate that the Ministry advised some candidates
in’ this competition that they could have’ calculators and
refrained from advising others. However, where it is the case.
that the function is normally performed with the use of a
calculator, and where such a high weight is attached to the marks
in this. particular answer, it appears to us that it is incumbent
on the. Ministry to ensure that all candidates are “playing on a
level playing field”. 1% ought to have ensured either that ~11~
candidates or that no candidates had calculators. Its failure to
do that resulted in a situation in which then grievor performed
very poorly on a question which was highly weighted. Of course,
we cannot know how well he would have done had he Chad a
calculator. However, there is evidence to indicate that when he
was performlng In the position In t3Jl .act lng ‘capacity, he
.
39
performed this function with a calculator to the satisfaction of
the Ministry. ,
We turn next to the matter of the conduct~of Mr. Kennedy,
The evidence is clear and uncontradicted that Mr. Kennedy.cheated
on the examination. He was observed leaving the examination room
by a number of witnesses on 4 occasions and he was observed by
the grievor examining papers in. his locker on each of those
occasions.
Counsel for the -Ministry suggested. tha~t there was no l
evidence to establish that he was looking at anything which would
be of assistance to him in the examination. We do not believe -
that the Union needs to ~produce the “smoking gun”. The evidence
leads quite reasonably and justifiably to the inference that Mr.
Kennedy was consulting materials which would be of assistance t’o
him. What other possible reason’ could there be for a candidate
in an examination to leave the. room four times and to consult
papers in his locker except to acquire. information which would .’
assist him. The failure of Mr. Kennedy to testify and provide
the Boards with an answer to this evidence persuades us that the
inference should be drawn.
It was suggested that the Ministry should not ,be held
responsible for then conduct of Mr. Kennedy. While we have. stated
above that, with respect to the circulation of documents and the
structuring of the oral interviews, the Ministry should not. be
held accountable, we believe that, with respect to this incident,
39
the Ministry clearly was able dnd ought to have prevented this
action from taking place. I'
The evidence, indicated that Mr.,Kennedy sought and obtained
the. permission of Mr. Pickering t0 leave the room on each
occasion. We are at a loss to understand why he would have been
given that permission so frequently. Neither MK. Pickering nor
MK . . Kennedy testified as to what reasons were Offered for these
events. It would appear to us, however, that Mr. Pickering ought
reasonably to have become suspicious of Mr. Kennedy's behaviour
and either declined to grants permission or, if the reasons
offered were regard'ed as legitimate, to have arranged. to have-
someone accompany MK. Kennedy to the locker room.
The activity in which all of the candidates were engaged
was a serious one; each of them were competing for a desired
vacancy. The conduct of MK. Kennedy, apparently tolerated by Mr.
Pickering, made a mockery of the exercise.
We do not regard the fact that no complaints weKe made at
the time to undermine the seriousness of the matter. Mi .
Pickering ought to have established and applied what any
reasonable person wo~uld consider to be certain common sense rules
for the writing of a written examination. It was not necessary
for anyone to draw to his attention the obvious irregularity in
what was .going on.
Finally, we turn to the.treatment accorded to Mr. .Corbeil.
Mr. Corbeil .was permitted to enter the competition
notwithstanding the fact that his attendance had been "poor" and
40
his medical condition suspect. Furthermore, in the scoring of
the oral interview he was given a grade based on what he !lad told 2
the interview panel and which did not accord with the Kecords.‘X
Once the Ministry establishes screening criter~ia it is
obl 1 ged to administer those criteria in a Kesponsible.fast~ion.
Having KegaKd to the evidence concerning Mr. Corbeil's medical
condition at the time of the competition and to his attendance in
general we do not believe that the M~inistry has correctly applied
the screening criteria.
MOKeOVeK, in permitting Mr. Corbeil to enter this
competition, it has interpreted the screening criteria far more
generously to him that it did with respect to .the grievor in an
earlier competition. Admittedly neither MK. Foulds nor Ms.
Capobianco can be personally faulted for the pearlier decision to
exclude the grievor from a competition because he had a cast ion
his arm. 'However, it is the conduct of the Ministry, and not its
individual officials acting in particular cases, with which we
~must be concerned. The uncontradicted evidence is that the
grievor was refused permission to enter that competition because
of a medical condition which, if anything, was even more of a
shOKt term condition than that of MK. Cdrbeil. Candidates who
enter--competitions are entitled to expect that, where screening
criteria are established, those criteria will be administered in
a consistent and fair manner. We are not satisfied that has
occurred in this. case.
41
The Union requests that, having regard to the fact that,
apart from-the competition’, the g~rievor has demonstrated that.’ he
possesses’ the requisite qualifications and ability to perform the
job, and having regard to the passage of time since the
competition, the grievor should ‘be placed in the position and
awarded retroactive compensation.
In the alternative the Union requests that the Board direct
that the competition (betwe’en-only the grievor and the successful
candidates) be run again subject to certain conditions designed.
to ensure both that the flaws which occurred in’ the first‘
compet,ition do not occur again and to protect against the
inevitable advantage that Will accrue to the successful
candidates who have been in the position now for over two years.
The Board has frequently dealt with the problem of the
appropriate relief to .award in comp,etition cases. It is
generally recognized that, where a successful grievor is
permitted to enter a second competition against the incumbents,
it is necessary to take care to ensure that those who have been
in the job, frequently for a~ number of years, do not have an
advantage. Consequently, the Board has attached various
conditions to the running of a second competition.
Such efforts are generally not very successful. It is
difficult to design an examination procedure which will, at one
and the same time, be a meaningful test of ability to perform the
required functions and will not give an advantage to persons
42
currently performing the duties of the job. To protect against
that advantage questions need to be structured in such a fashion
as to make the whole exercise somewhat meaningless. Moreover,
there are inevitable disputes around the issue as to whether or
not the Ministry complied with the conditions set down by the
Board. Those disputes find their way back to the Bo:ard and the
whole exercise must be repeate~d again.
Notwithstanding these concerns about. the utility of the
I exercise the Board must o.rder a new competition were it cannot be
satisfied on the evidence that a grievor has the requisite
ability and qualifications for the position.
On the basis of the results of this competition we must have-
some serious doubts as to the grievor’s ability and
qualifications. Apart from the,issue concerning the weighting
given to the fine calculation question and the grievor’s lack of
access to a calculator, the flaws which we have identified as
warranting a remedy (the permission given to M,r. Kennedy to leave
the examination room, and the permission given to Mr. Corbeil to
compete.) had no bearing on the grievor’s score. While it may .be
the case that~ Mr. Kennedy would not have scored as well as he did.
had he not been permitted to cheat in the examidation it is
unlikely that that alone would have reduced .his score to a point
where he’would not have been one of the successful candidates. If
Mr. Corbeil had not been permitted to enter the competition there
would, admittedly, have been one fewer candidates against which
the grievor was competing. However , having regard to the score
which the gr ievor received, he would sti 11 have ranked far ~down
in the list.
.
43
,
It may be noted that a change in the grievor’s score on ‘.the
fine calculation question could be quite substantial. If one
assumes that the grievor would have achieved a score of 60% on
the fine calculation questions,(i.e. 9 out of 151 his grade on d
the written examination would have risen to 54.1 and his average
on the combined written and oral test would have then been 45.9
percent. That would have moved him from the position of 17th to
the 12th position in the competition, still some distance from
the cut off point.
~This the dilemma which WI?
face. We have found the
competition to be seriously flawed in various respects. Had the
competition not been flawed the grievor would, in our estimation
have done somewhat better than he did. This would suggest that
the competition.should be re-run. Yet, as a practical matter, we
have some doubts as to whether or not, if a competition were re-
run, its could, even with the best of efforts, put the.grievor on
a “level playing field” with those who have been working in the
position for some time.
At the same time the grievor’s performance .in ~( the
competition was so far below that of the others that we have
serious questions as to whether or not he possesses the ability
and qualifications to do the job.
While we. recognise the serious practical shortcomings
involved in d recting a second competition we nevertheless I
, 44
conclude that in the c,ircumstances of this case that is the
relief that should be awarded..
However, a second competition shou
a number of conditions.
,ld be conducted subject to
Those conditions are the following:
1. That the comprtiti’on be limited to the grievor and the
successful incumbents.
2. That the panel be constituted by d.ifferent personnel none
of whom are related in ,any way to any of the candidates.
3. That the questions asked of the candidates be designed in
such a way as eliminate in so far as is possible any advantage.
that the incumbents. may have by reason of the fact that they have
been in the position ‘since 1386.
4. That the weight assigned to the questions asked and
answers given accurately reflect both the significance of the
duties and the frequency with which they are performed.
5. That the competition be conducted in such a fashion as to
ensure that secrecy and security i s’ maintained and that no
candidate is permitted to know i.n advance the questions to be
asked or to cheat durin,J the examination.
6. That all candi&trs be given ,an equal opportunity to.have
access to the manual of policies and procedures for the purposes
of pteparing for -the e:*:amination.
.
45
The Board remains seised of jurisdiction to resolve any
problems which may arise. concerning the i~nterpretation OK ./
administration of these conditions.
,Dated at LONDON, Ont. this 29th' day qf November . 1988.
G. J. Brandt, Vice Chair~person
r
& -.
” I: J. Thomson, Member _~
P. 0. Camp, Member