HomeMy WebLinkAbout1987-2474.Cooke.91-07-18EMPLOYES DE LA CDURONNE DE L ‘o,vTA~,*
CQMMISSION DE
SETTLEMENT REGLEMENT
. DES GRIEFS
IN TNB NATTBR OF AN ARBITRATION
Under
2474/87
.TBB CRONN EMPLOYEE8 COLLBCTIVB BARGAINING ACT
Before
THE GRIBVANCB SBTTLENBNT BOARD
BEFORE:
FOR THE GRIEVOR
BBTNEEN OLBEU (Cooke)
-land -
I
Grievor
The Crown in Right of Ontario (Liqour Control Board of Ontario)
Employer
J. McCamus J. Solberg, H. Roberts
Vice-Chairperson Member Member
E. Michell Counsel Xoskie & Minsky Barristers 6 SoliCitOr
FOR TNE B. Labord
EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, StOrie Barristers & Solicitors
HEARING August 22, 1988
,._ . J
I
2 .
The Grievor alleges a violation of Article 32.4 of the
Collective Agreement relating to a competition held for an
appointment to the position of Clerk II. This position is an entry
level permanent position. The applicants for the appointments made
to the Clerk II position in the present competition consisted of
some thirty temporary employees. Although the number of
appointments actually made in this competition was not revealed in
the evidence led by the parties, the Grievor was eligible, on
geographical grounds, for consideration for three of the Clerk II
positions awarded. The three successful candidates for these
positions, Mr. Edward Kernot, Ms. Louise Robinson and Mr. Wayne
Wood were served with notice of these proceedings and of their
right to participate in them. The three candidates were present
throughout the hearing conducted with respect to this Grievance.
Article 32.4 of the Collective Agreement stipulates as
follows:
32.4 The Boards agree to give consideration to the qualifications and ability of part-time employees to perform the duties of a vacant full-time position and of casual employees to perform the duties of a vacant permanent part-time position, before going outside the bargaining unit to fill such positions. Where in the opinion of the Boards, two (2) or more such employees are relatively equal ' qualifications and abilities, then seniority shall! be the deciding factor in allocating such positions.
It was urged on behalf of the Grievor that two separate breaches
of this Article occurred. First, it was argued that the Grievor
should have been appointed to one of the three positions on the
basis of the criterion for appointment set out in Article 32.4.
. . .
I c
3
On this branch of the Grievance, the relative seniority of the
Grievor and the three incumbents is obviously rendered material by
Article 32.4. The parties are in agreement that seniority for
these purposes is calculated for part-time employees by the number
of hours worked. The seniority figures for the three incumbents,
on this basis, are as follows:
1. W. Wood 4026.5 hours 2. L. Robinson 2998.5 hours
3. E. Xernot 972.5 hours
The Grievor's seniority, calculated on this basis, is 2723.5 hours.
Thus, the Grievor plainly has substantially more seniority than Mr.
Xernot but less seniority than Ms. Robinson and Mr. Wood. The
parties further agree that the proper interpretation of the
standard set forth in Article 32.4 would only require the Employer
to appoint the Grievor if it held the opinion either that he was
clearly superior by a substantial and demonstrable margin to those
candidates - Ms. Robinson and Mr. Wood - who have greater seniority
or that he was "relatively equal" to the one employee - Mr. Kernot
- with respect to whom he has greater seniority.
Alternatively, it is argued that the competition itself was
so defective that the Employer failed to discharge its
responsibility under that Article to "give consideration to the
qualifications and ability'! of the Grievor. With respect to the
latter point, the Grievor relies upon the substantial body of
jurisprudence of this Board which has emphasised, as it did in
Q&D and Ministrv of Transportation and Communications GSB 9178
4
(Prichard), in the course of interpreting a similar provision, at
pages 7-S:
. ..that in meeting the obligations under that article the employer must employ a process of decision-making designed to consider the relative qualifications and ability of the candidate in competition which will ensure that sufficient relative information is induced before the decision-makers in order that they may make their comparisons in the confidence that they will be able to thoroughly and properly compare the qualifications and abilities of the competing applicants
At the conclusion of the case led by the Union on behalf of
the Grievor, the Employer moved for a non-suit and elected to call
no further evidence. Accordingly, it is necessary to consider
whether, on the evidence led, the Union successfully established
a prima facie case with respect to either branch of this grievance.
As might be expected, the parties were in substantial disagreement
with respect to the elements necessary to establish a prima facie
case and with respect to the extent to which the evidence led in
the Present proceeding successfully established those elements.
Lengthy written submissions and books of authorities were filed by
the Employer in support of the motion, by the Union in response and
by the Employer in reply to the Union's submissions.
At the hearing, the parties filed an Agreed Statement of Facts
(Exhibit 3), which provided a brief account of the background of
this dispute. Appended to this document was the job specification
for the Clerk II position (Exhibit 4) and a summary of the scoring
for the interviews of the thirty candidates interviewed by a
SeleCtiOn panel COnSiSting of R.J. Ford, A. Palmerio and D. Carter
-
5
(Exhibit 5). The respective scores of the three incumbents and the
Grievor were as follows:
1. L. Robinson 49
2. W. Wood 46
3. E. Xernot 49.3
4. J. Cooke 41.7
The three incumbents thus achieved higher scores on the interview
than the Grievor. All four of the scores, however, appear to be
above the average score awarded to the thirty candidates. The
Union put in its case through the testimony of the Grievor and of
his immediate SUpeNiSOr, Mr. Wayne Barry who was, at the material
time, the Manager of Store 612 in Schomberg, Ontario. Mr. Cooke
began working at Store 612 as a part-time employee in July of 1986
and was supervised by Mr. Barry up to and, indeed, beyond the time
of the~competition. During this period Store 612 was classified
as a 'D' store. ‘D’ stores are, according to Mr. Barry,
essentially a "one man operation". At a later point in time, Store
612 was moved up to the 'C' category. A typical 'Cl store has a
manager, an assistant manager, a book-keeper and perhaps three or
four full-time clerks. When Store 612 was upgraded, Mr. Barry
became the Assistant Manager.
Mr. Barry's evidence concerning the Grievor's performance as
a part-timer at Store 612 was very positive. Mr. Barry is an
employee of ten years standing who has broad experience in a
variety of different sizes of stores. ,As well, he has had good
experience in working with part-time employees in these contexts.
Against this background, Mr. Barry rated the Grievor's performance
r- 6
very highly. He described the Grievor as a Self-starter who
learned the job very quickly. According.to Mr. Barry, Store 612
was a very busy operation and he was therefore unable to devote the
time necessary to teach the Grievor all of the various tasks
assigned to him. The Grievor was able to figure'things out for
himself and was able, according to Barry, to do everything required
of him. Mr. Barry testified that during this period, the Grievor
performed all of the tasks normally assigned to Clerk II's set
forth in Exhibit 4. In addition, however, the size of the
operation was such that the Grievor was also required to perform
the work of a Clerk 111 - something mentioned by Mr. Barry in one
of his evaluations of the Grievor which were filed.as Exhibit 6.
Additionally, Barry testified that the Grievor was performing some
of the book-keeping functions of a Clerk IV. In Barry's' absence,
the Grievor was required to fill in as acting manager. When other
part-time staff were brought into the operation, they would
typically be supervised by the Grievor. The Grievor, according to
Barry, performed all these tasks well. In his view, the Grievor
had good product knowledge. He was punctual; he always arrived at
work early. His attendance was flawless. Out of the fifty or so
part-timers that Barry had worked with, he would rank the Grievor
as being within the top ten percent. Mr. Barry was not able to
offer much insight with respect to the competition process itself.
Two points, however, are of interest. First, it was Barry's
evidence that he was not consulted by the selection panel. Second,
Barry confirmed that an operations manual was not available in
7
Store 612. Thus, the Grievor was unable to study the manual,
should he have determined to do so, prior- to the interview. When
asked on cross-examination whether the manual could have been
photocopied, Mr. Barry indicated that it was too large a document
for this to be a practical alternative.
In his testimony, the Grievor confirmed the evidence of Mr.
Barry with respect to the range of responsibilities he had assumed
in the course of his part-time employment in Store 612. With
respect to some items, the Grievor provided a more detailed account
of his experience than did Mr. Barry. As well, the Grievor
indicated that he had taken a product knowledge seminar offered by
the Employer and further, had done some reading on his own on wines
and spirits. Further, the Grievor offered evidence with respect
to his work experience prior to his part-time work for the
Employer. The Grievor had previously worked in .the trucking
industry as a claims adjuster, head dispatcher and as a manager for
something in the order of a total of ten years. As well, he spent
five years as a Supervisor Clerk IV with the ~Gntario Hospital
Insurance Plan. In the Grievor's view, this increased his
suitability for appointment as he had a good deal of previous
experience in dealing with customers and clients. As well, he
indicated that he had taken courses in bookkeeping and accounting,
human relations, personnel management, public speaking and
effective supervision.
8
with respect to the competition itself, the Grievor indicated
that he was given about two weeks notice of the interview. He was
not given any notice of the nature of the content of the interview
nor was he asked to prepare or bring a resume to the interview.
When asked whether he took any steps in preparation for the
interview, the Grievor indicated that he wanted to consult a copy
of a procedures manual but was unable to do so. There was no
manual available at Store 612, although one was expected
imminently. When asked on cross-examination whether he had
considered visiting other stores in the region with the view to
looking at their procedures manuals, the Grievor replied that that
did not appear to be a practical solution to him. He would not
have been allowed to take the manual away with him and, as has
already been noted, the manual was said to be too large to make
photocopying a reasonable alternative. Moreover, the Grievor
indicated that he understood that a manual would be arriving
shortly at Store 612. Finally, the Grievor indicated that he did
not appreciate that the interview would constitute, in effect, a
test on the procedures outlined in the manual. He thought that the
interview might involve a more general discussion about his
Previous experience and his thoughts about his current work for the
Employer.
The interview itself involved a series of questions relating
to proper procedures for various matters. According to the
Grievor, the questions concerning procedures constituted the total
.9
interview. Upon the occasion of the interview, the Grievor WAS not
given any indication of his evaluation.. Indeed, he testified that
he never did get formal notification of the reasons for his failure
to succeed in the competition. Mr. Barry asked Mr. Ford to see the
Grievor and this task was delegated by Ford to Mr. Carter.
According to the Grievor, Mr. Carter told him that he was not
successful because he did not attain high enough marks on the
interview. Mr. Carter allegedly said that he realized that the
Grievor had "more ability" but that this was because he had worked
in a smaller store and had more opportunity to do various aspects
of the job. The Grievor indicated that Mr. Carter further reported
that the selection was made on the basis'of the interviews, the
evaluations and seniority. The Grievor further testified that one
of the members of the Committee, Mr. Alfie Palmerio was the
supervisor of the incumbent Kernot in Store 453.
Before turning to consider the legal arguments presented ‘by
the parties, we may note that the evidence concerning the Grievor's
conversation with Mr. Carter raises more questions than it answers.
In what respect was the Grievor allegedly "more able" than any of
the other candidates. Did this ability relate to knowledge of
procedures and, if so, what was the relationship to that judgement
offered by Mr. Carter and the test that constituted the interview?
Were Mr. Carter's views shared by the rest of the Panel? Did the
Committee take the decision to discount ability and qualifications
arising from previous work experience with the Employer and rate
10
the candidates, in this respect, exclusively on the basis of the
test score? If so, what would have justified such an approach?
Did the Selection Committee consider the. possibility that the
Grievor's superior "ability" might be a basis for offsetting or
neutralizing his poor performance on the interview'or test and if
not, why not? And so on. In short, the explanation allegedly
offered by Mr. Carter, if it did indeed represent the thinking of
the Committee, does not provide an explanation for the decision
which is free of problems.
Against the background of this evidence, the Union has argued
that the Employer's motion for a non-suit should be dismissed. The
Union concedes that it has the initial onus to prove its case. It
is further argued, however, that once the Union establishes a &
facig case, the onus shifts to the Employer to bring forward
evidence justifying the decision it has taken. In the present
context, it is argued that that & &G+& case is constituted by
establishing that the Grievor was entitled to be considered for the
posted position and that he was not properly considered for it.
Support for these propositions is drawn from the decision in
Be Bridoe and Tank Co. of Canada Ltd, v. United Steel Workers,
Local 2537 (1975) 9 L.A.C. (2d) 47 (Weatherill) and on two
decisions of panels of the Grievance Settlement Board which have
applied an analysis of this kind in the context of job-posting
grievances. The issue in Be Bridoe and Tank C 0.
concerned a
11
provision in a collective agreement that layoffs would be made on
the basis of seniority provided that the employees, "in the opinion
of the Company," were "relatively equal". The grievor alleged that
he had been improperly laid off in favour of a more junior
employee. At the hearing, the union put in evidence concerning the
grievor's qualifications, his seniority and established the fact
that more junior employees had been retained. No evidence was led
with respect to the qualifications of those more junior employees.
Notwithstanding the absence of comparative evidence of this kind,
the employer's motion for a non-suit was dismissed. The board of
arbitration reasoned as follows, at page 49:
In our view, once it has been shown (as in the instant case) that an employee is entitled to the benefit of the general dispositive provision of the article, it is then up to the company to bring itself within the proviso, and to sh-ow that, in its opinion the employee in question was not "relatively equal" to those retained.
We are of this view not only by reason of our construction of the article but also because we consider it a realistic and proper requirement, in cases of this sort, that the employer, which has taken action with respect to an employee, which has the benefit of a wide discretion with respect to such action, and which alone has knowledge of the grounds on which its opinion was based, be required - the grievor's general entitlement being made out - to come forward and establish the grounds for its opinion.
An application for judicial review of this Decision was dismissed
by the Ontario Divisional Court. See (1975), 10 L.A.C. (2d) 172.
There are at least two decisions of the Grievance Settlement
Board in which a similar analysis has been applied in the context
of promotion grievances. The facts of those cases are strikingly
-‘.
12
similar to the facts of the present case, as is the nature of the
evidence led by the Union. In pe Zuibrvcki, v. The Crown in the
Riaht of Ontario (The Ministrvof dustrv and Tourism) (1979), 22
L.A.C. (2d) 157 (Adams), the grievor provided evidence with respect
to his oun qualifications and his prior experience. Further
evidence was supplied by his supervisor who indicated that he had
been very satisfied with the grievor's performance and would be
prepared to promote him to the position in question. The
successful candidates were in attendance at the hearing but were
not called by either party nor did they testify or make
representations to the board on their own behalf. The employer did
not move for a non-suit, but elected to call no evidence. The
employer had, however, without objection on the part of the Union,
filed a document listing all candidates and their backgrounds and
three competition summaries indicating that the grievor had
attained the lowest rating in each of the three competitions. In
allowing the grievance, the Board stated as follows at pages 162-
163:
The presentation of this case by the employer was far from satisfactory. The grievor testified and he called one witness. From this evidence we are satisfied that he made out a rrrcm?+ u case that he was at least equal in ability and qualifications to all of the other candidates in each competition. However, we are not satisfied that he established that he was demonstrably superior in qualifications and ability to any of the other candidates. established his claim, Accordingly, he successfully in a & u way, only in relation to those employees who possess less seniority than he did . . ..In our view, at the conclusion of the grievor's case, the evidential burden shifted to the .employer and these two candidates to explain and otherwise justify the employer's decision.
13
The Board remitted the matter to the parties with an instruction
that they fashion an appropriate remedy. -
Similarly, in Newburn & PhilliDS v. T e Crown h
ontario 485/81 and 486/81 (Verity), this Board
held that an evidentiary burden shifted to the employer and to the
incumbents to justify the employer's decision at the conclusion of
the Grievor's case. In Newburn & PhilliDS, again, no motion of
non-suit was made by the employer, but the employer elected to call
no evidence. Accordingly, it was thought necessary that the Board
should determine whether the Union had established a prima facie
case. The Union had put in its case through the evidence of the
two grievors who testified with respect to their own qualifications
and with respect to their experience of the interview process. As
well, several documents were introduced including score sheets for
members of the selection committee, total composite scores of each
candidate and application fo.rms for the successful incumbents and,
presumably, the grievors. As in Zm, the two incumbents were
duly notified and present at the hearing. Neither incumbent
testified or made representations to the board.
In m, the Board determined that the Union
had successfully established a & facie case to the effect that
the grievors were at least egual.in ability and qualifications to
the two successful candidates. The Board noted as follows, at
pages 10-11:
14
In our view at the conclusion of the Grievor's case, the evidential burden shifted to the Employer to explain and justify Management's decision. We accept the evidence of the two Grievors in the absence of any evidence to the contrary.
The Board offered muted criticism of the employer for it5 failure
to provide some evidence "as to the relative 'merits of the
qualifications of the successful incumbents, other than that which
was available in the form of the application forms and scoring
sheets". The Board went on the hold that the Union had
successfully established a ~r.&,~a $,&& case in support of the
proposition that the competition process itself was defective.
Further support for the Union's theory of the shifting
evidentiary burden that passes to the employer in cases of this
kind can be drawn from &2 Centurv Electronics Ltd, v. Canadian
Association of I~&&&al. Mec&&cal wed Workers. (Local
u, (1978) 19 L.A.C. (2d) 105 (MacIntyre), a case relied on by the
Employer with respect to the scope of review permissible in cases
which have, as in the present case, an "ability versus seniority
clause" which contains a "company judgement" clause. In that case,
the board held, at page 110, that "the onus is first upon the Union
to establish that the grievor had the ability to do the job, and
was senior". At this point, in the board's opinion, "the onus then
shifts to the company to prove that it acted reasonably, honestly
and without discrimination or bad faith".
The Employer argues, on the other hand, that in order to
15
establish a prima facie case, the Union must lead evidence of the
qualifications and ability of the incumbents in order to
demonstrate that the grievor is either relatively equal or superior
to them. In order to offer convincing support for this
proposition, the Employer must demonstrate either that the previous
decisions of the Board in Zuibrvcki and Newburn & PhilliDs are
inapplicable or that they are wrongly decided. Two arguments have
been put forward on behalf, of the Employer to this end. First, it
is argued that the decisions in Zuibrvcki and Newbur AlliDS
are inapplicable because they deal with situations in which the
employer has simply elected not to call evidence. Second, it is
argued that there exists a line of previous decisions of this Board
which 'are in conflict with these two decisions and that the
reasoning .in this conflicting line of authority is preferable to
that in Suibrvcki and p w e..
With respect to the first point, we appreciate that this is
in fact a distinction between the procedural context within which
the issues arose in Zuibrvcki and Newburn & PhilliDs as opposed to
that of the present case. Nonetheless, we are not persuaded that
this is a material distinction. The Employer argues that where
there is simply a failure to call evidence, the adjudicator is
entitled to draw a negative inference from that failure, whereas
in the context of a motion for a non-suit, such an inference would
be inappropriate. We appreciate that the rules of evidence do
indicate that a failure to lead evidence may indeed lead to such
I
16
an inference and, further, that such an inference would not
normally be drawn in the context of a motion for non-suit.
Nonetheless, it is our view that negative inferences of this kind
do not in fact appear to form a part of the reasoning that leads
to the establishment of the prima facie case in either Zuibrvcki,
or m. In both cases, the Board adopted the view
that an evidential burden shifted to the employer at the conclusion
of the grievor's case. In 'our view, it is the employer's failure
to respond to the evidentiary burden that has been shifted to it
that explains the reasoning of the Board in each case. Neither
panel of the Board explicitly refers to the rule of evidence law
which permits the drawing of negative inferences and, in our view,
if one accepts the shifting evidentiary burden theory, neither is
there any reason to do so. We do not disagree with the Employer's
submission concerning the nature of the non-suit motion to the
extent that it suggests that in a case where the evidentiary burden
has not shifted to the Employer, it would be inappropriate, on a
non-suit motion, to draw negative inferences from the Employer's
failure to adduce evidence. In the present case, however, if a
Q&I@ f&& case has been established, there is no need to draw a
negative inference from a failure to adduce evidence; the Employer
a has simply failed to discharge the evidentiary burden cast upon it
by the Union's establishment of the gI;issa w case.
The Employer's second line of attack on the shifting
evidentiary burden theory is that there is a line of previous
17
decisions of the Grievance Settlement Board which appear to be
inconsistent with that theory. This proposition and the cases upon
which the Employer relies must be examined With some Care. As will
be seen, it is our view that these cases can be reconciled with
Zw and Bewbur n&PhillilJs, albeit with some difficulty.
Further, we are satisfied that, to the extent that any real
conflict exists, we prefer, in general terms, the analysis
concerning the nature of the Union's a facie case and the
resulting shift in the evidentiary burden adopted in Zuibrvckj, and
New ur b.
The decisions upon which the Employer relies are eish v. m
Cro i ; it0 Labour 139/77 (Swinton);
w v/The Co : in Ri of of the
Environment)L 52/80 (Jolliffe): Tofano v. The
0 t r'o yininistr, and Trade 478/82 (Kruger) and g
e 0
g 0
Co1 848s and
Uw v. Ontario Public Service Emulovees' Union (1982)', 7
L.A.C. (3d) 415 (Roberts).
In Fish, the only evidence led by the Union came from the
Grievor himself. The Grievor testified with respect to his own
qualifications and ability and with respect to certain alleged
defects.in the competition. The Employer moved for a non-suit and
enjoyed success. The Board noted that there was no evidence led
with respect to the incumbent's qualifications and that, indeed,
I
18
the incumbent was present at the hearing. The Board further noted
that although the Grievor's evidence with respect to the alleged
inadequacy of the competition was insufficient, a number of
statements made by counsel to the Employer in making submissions
to the Board indicated problems with the competition procedure that
might have been significant. The Board noted that, "Had evidence
of such practices been led, the Board might well have reached a
different result*. We wish to emphasise that the Board thus
indicated a willingness to come to a different conclusion in the
face of evidence concerning defects in the competition process,
even in the absence of comparative evidence concerning the
qualifications of the successful candidate.
In w, the only evidence led by the Union was, again, the
evidence of the Grievor who provided an account of his own prior
experience. As well, he provided an account of his interview,
including an account of the fact that when asked a question about
the pumps and valves used in the operations pertaining to the job
for which he was applying, the Grievor replied that he did not know
the answer to the question. The evidence also included the
applications of the Grievor and the incumbent. Relying on passages
from the Board's decision in &s&, the Board upheld the Employer's
motion for a non-suit and concluded that in the absence of better
evidence concerning the qualifications of the incumbent, the
Grievor had failed to establish a a u case that his
qualifications and ability were relatively equal to those of the
19
successful candidate. The applications of .the two individuals
constituted "a frail reed" on which to base a relative assessment.
There was ,no evidence led in w to suggest that there were any
deficiencies perceived by the grievor in the selection process
itself.
Similarly, in Tofano the principal evidence led was that of
t'he Grievor. Although the Union also called the incumbent as a
witness in this case, the only question put to him on behalf of
the Union concerned his seniority date. Essentially, then, the
Union's case was put in through the Grievor. His evidence with
respect to his own qualifications wasp held to be insufficient to
make a prima facie case of relative equality to the incumbent and
accordingly the Employerls motion of non-suit enjoyed success. The
Grievor also alleged but did not persuade the Board that there was
a significant defect in the procedure used by the Employer in the
selection process..
The fourth in this line of the authorities relied on by the
Employer is the Minist : case in which of 011
the Grievor was denied an interview in the competition in question.
Again, the Union put in its case through the evidence of the
Grievor. Counsel for the Grievor had indicated that the thrust of
the case "would be that the employer used an unfair or
inappropriate selection procedure and as a result, the competition
must be re-run". (See page 417). The Grievor's evidence, however,
20
offered little insight into the competition process itself. The
Grievor testified with respect to her. own qualifications and
indicated that in a conversation with her supervisor after the
competition was completed, the latter indicated that he believed
that she did not obtain an interview because no clerk at her level
had ever been appointed to the position which was the subject of
the competition. The jump was, in his view, too great. The Board
held that this evidence, together with a letter which simply
reported the Employer's opinion that the candidates who were
interviewed possessed stronger qualifications than the Grievor was
held by the Board to be insufficient evidence to raise a &
m case with respect to the unfairness of the competition from
a procedural point of view. The Board suggested that it might have
come to the contrary conclusion if the Union had led all of the
evidence available to it, in particular, the Board noted that the
successful applicant could have been called by the Grievor to give
evidence w.ith respect to her qualifications and the questions asked
or comments made during the interview. Presumably, it was the
Board's view that questions in the latter category might have shed
some light on the alleged deficiencies in the interview process.
Although the result in Ministrv of Colleaes and Universities
is consistent with the proposition being advanced by the Employer
in the present case, it is of considerable interest that the
majority of the panel in that case stated that they came to the
21
conclusion that the Employer's motion for a non-suit should succeed
with great reluctance and regret. Further, a vigorous and, in our
view, persuasive dissent was filed by the third member of the
panel. The majority began its award by stating that, "This is a
disturbing case". The majority went on to explain-'as follows at
page 416:
First, this ruling which we were~-required..&0 make pursuant to the employer's motion does little to promote satisfactory labour-management relations. -Y consideration of what might have been legitimate substantive issues has been thwarted.
Secondly, in a job-posting grievance such as the one at hand, the motion for non-suit seems to be little more than a snare to trap the unwary. Most of the facts regarding the selection procedure used in a competition are peculiarly within the knowledge of theemployer and not the grievor who has the burden. In recognition of this, other "representatives of the employer have made what might be called 'disclosure' by calling witnesses, including those who made the selection, so that the board could be informed as to how the competition was conducted and the reasons for which the choice was made": & @Qyg.. . . Given the existence of this practice, counsel for the grievor undoubtedly was surprised by the employer's motion.
We are so disturbed by this factor that if we were convinced that counsel for the grievor had elicited all of the evidence reasonably within his grasp regarding the fairness of the selection procedure - and yet failed to establish a prima facie case - we would have been tempted to change the law of the board by shifting to the employer both components of the burden of proof, i.e., burden of producing evidence and burden of persuasion, on the issue of the fairness of the selection procedure established by the employer for failing to post a vacancy.
Plainly, the majority felt that it was bound by the previous
decisions in &.& and &~yg to come to a conclusion which the
majority found quite unattractive on policy grounds. The dissent
Was very critical of the reasoning of the majority on three
/‘- :..
22
grounds. First, it was suggested, at page 420, that the majority
"while recognizing that the facts regarding the selection procedure
used in the competition are peculiarly within the knowledge of the
employer and not the grievor, has not taken the next step in
shifting the burden to the employez?. Second, the suggestion of
the majority that a different result might be warranted in a case
where the Union called all of the evidence available to it was
criticised on the basis that such a test "would require the parties
to enter into an exercise of calling evidence on the availability
of evidence. This could lead to no end of problems" (at p. 420).
For example, it would not be "appropriate to expect Union counsel
to testify as to difficulties in obtaining evidence" (at p. 421).
The dissent went on to suggest that, "The more reasonable approach
would be, to place the evidentiary burden as to the selection
process and the rationale for the decision automatically upon the
employer once it has been established by the grievor that she has
the skill and ability to do the job in question" (at p. 421). And
again, "The union cannot be reasonably expected to subpoena and
examine the members of the assessment committee nor to subpoena and
examine any other member of management who may have been involved
in considering the qualifications and abilities of the applicant.
The majority has indicated that the incumbent could have called the
successful applicant to give evidence with respect to her
qualifications and abilities. However, this would have thrown
absolutely no light on the first and primary issue: whether the
employer gave the required consideration to the grievor" (at page
.-.
23
421). Finally, the dissent criticised the majority's
interpretation of the evidence and suggested that the evidence did
support the proposition advanced by the Union to the effect that
the Employer had not properly considered the Grievor's
qualifications and ability to perform her duties.
As we have earlier indicated, we find the approach taken by
the dissenting opinion in Co lleaes and the reasons
for the reluctance expressed by the majority in that case to be
quite persuasive. Accordingly, the question this Panel must
squarely address is whether we are, in effect, bound by the
previous decisions of the Panel in the cases such as Genvs, Fish
and Tofano to come to the conclusion so reluctantly embraced by the
panel in the Colle e decision. In our view, the
line of cases relied upon by the Employer can be distinguished from
the previous decisions of the Board in Euibrvcki and Newburn &
Phillins, the latter being the cases which adopt the shifting
evidentiary burden theory. The first point of distinction relates
to the quality of the evidence led by the Union in the two
different lines of authority, In the w and Fish line of
authority, the only evidence led by the Union, typically, is the
Grievor's own evidence with respect to his own qualifications. It
is not surprising that previous panels of the Board have been
reluctant to come to the conclusion that the Grievor can, out of
his or her own mouth, as it were, provide compelling evidence that
his or her qualifications are relatively equal to those of the
24
incumbent, there being little or no evidence of the latter's
qualifications and ability. In Zuibrvcki, on the other hand, the
Grievor's evidence concerning his own qualifications and ability
was supported by the testimony of his supervisor who indicated that
he had been very satisfied with the Grievor's performance and would
be prepared to consider him for appointment to the position in
question. In Newbm & Ph&J&s, the Union's evidence included the
testimony of both of the Grievors and, as well, something in the
order of nineteen documents filed as exhibits. In the present
case, of course, there was considerably more than the mere
testimony of the Grievor with respect to his own qualifications and
ability. His supervisor testified and indicated that he would rank
the Grievor within the top ten percent of the many part-time
employees with whom he had worked in the past. Given that
something in excess of ten percent of the applicants in the present
competition enjoyed success, this is evidence which offers
significant support for the Grievor's allegations that he was well
qualified for the position. Thus, to the extent that a line can
be drawn between the Zuibrvcki and Newburn 6 Phil- line of
authority on the one hand and the m, && line of authority
on the other on the basis of the strength of the evidence
concerning the Grievor's qualifications and abilities, the present
case falls on the aibrvcki, Newburn h Phillins side of that
divide.
It has been argued by the,Union in the present case that the
-..
25
presence of a defect in the competition is a further and important
factor in determining which of the two.lines of authority are
applicable to a particular set of facts. Thus, in Newburn &
Phillins, the Board was persuaded that the competition was, in
fact, defective and accordingly, was prepared to uphold the
grievance. In Fish, on the other hand, where the Employer's motion
for a non-suit was upheld, the Board noted that if the existence
of defects in the competition.process had been established, the
result might well have been otherwise.
Our own view is that the presence or absence of a defect in
the competition is, indeed, a material consideration in determining
whether the Union has made out a prima facie case. Although we
appreciate., of course, that "superiority or relative equality" and
M'competition defect" are severable grounds for a grievance, we
nonetheless think that there can be a relationship between them in
the context of a determination as to whether or not the Union has
made a prima facie case of superiority or 'relative equality. In
the present case, for example, the evidence concerning the
Grievor's qualifications and ability are very strong. In
attempting to determine whether or not the Grievor has made out a
e facie case of relative equality to the incumbent, it may
strengthen the Union's case if it is able to show that the
strengths of the Grievor's candidacy appear not to have been
properly considered by the Employer. We do not wish to suggest
that a competition defect must be shown in every case in order to
26
establish a prime- case. Certainly, no competition defect was
alleged or found in the Zuibrvcki, case. ,,Rather, we suggest that
the presence of such a defect may be helpful as the Union is
obliged, in a case of this kind, to establish that the evidence
led would, if left unanswered, lead one reasonably to the
conclusion that, on the balance of probabilities, the facts
supporting the grievance are as alleged by the Grievor. The fact
that, for example, material information concerning the strengths
of the Grievor's candidacy may not have been considered but, were
the procedures appropriate, should have been considered, might
assist in tilting that balance in the Union's direction.
We turn, then, to consider whether, as the Union alleges,
there were defects present in the competition procedure followed
in the present case. For present purposes, it is not necessary to
review in detail the now very substantial body of jurisprudence of
this Board setting out the requirements for a successful
competition. We content ourselves with observing that the basic
requirements have been set out in a long line of authorities and
the basic requirement that information concerning the candidates
be gathered in a systematic, appropriate and fair manner,
emphasized by the Board in the Q&,~-RR case to which we earlier
referred, should be well known to the parties. The Union alleges
three separate defects in the competition process. First, it is
noted that the selection panel included Mr. Palmerio, who is the
supervisor of one of the incumbents, Mr. Kernot. It will be
?
27 .
recalled that the Grievor's Supervisor, Mr. Barry, was not a member
of the panel. In previous decisions of the Board, the presence of
the supervisor of one of the candidates on the selection panel has
been identified as being problematic. The potential seriousness
of this problem has been emphasized in some awards. In m
(Alam) v. The Communi and
-Senrices) 735/85 (Brandt), Soci the Board noted in similar
circumstances that the presence of one supervisor and the absence
of the Grievor's supervisor meant that the' panel had the benefit
of certain information concerning one candidate which it did not
have in respect to other candidates. The Board went on the say,
at page 10, that "that fact alone is sufficient to justify our
conclusion that the competition was fundamental1.y flawed". See
also, OPSEU (Eaton)- v. T e C ow n hg
Tg 629/85 (Connaught). We need not
consider whether the presence of one of the cand,idate's supervisors
on the selection panel is a defect which could be cured by adequate
consultation of the supervisors of all candidates for in the
present case, the evidence is that the Grievor's supervisor was not
consulted by the selection panel. Further, we need not consider
whether the presence of one of the candidate's supervisors on the
committee is invariably a fatal defect. We limit ourselves to the
observation that where one supervisor ispresent, efforts must be
made to ensure that other tandidates are not handicapped by this
fact.
i
. 28
Second, the Union argues that the panel relied virtually
exclusively on the results of the interview to make its
determination. In the Eaton, Q&iz@ and pewburn h PhilliDs cases,
all of which have been referred to above, the Board has stressed
that exclusive reliance on the interview itself is a significant
defect in the process. The facts of the present case, we might
add, demonstrate the common sense underlying that proposition. The
evidence led by the Union strongly suggests that the interview was
conducted essentially as an examination on approved procedures.
The Grievor has testified that the authoritative source of such
information, the procedures manual, was not available to him. For
reasons such as this, the interview itself may not provide
completely authoritative evidence with respect to the
qualifications and ability of a particular candidate. In our view,
however, the evidence led by the Union follows short of
establishing a - m case that the Employer relied
exclusively on the interview itself in making its decision. The
very hearsay evidence which the Union relies on to establish to
establish the importance the score on the interview - that is, the
Grievor's evidence with respect to his conversation with Mr. Carter
- also suggests that some other information was considered.
Certainly, however, this evidence does raise a suspicion that the
interview score loomed very largely, and perhaps excessively, in
the deliberations of the selection committee.
The third defect alleged by the Union which was said to be
t
29
related to the second is that the selection committee did not
consider other relevant information necessary to the making of an
informed decision. Here again, the evidence led by the Union does
not go so far as to establish this proposition. As with the second
alleged defect, we are satisfied that the Union has raised evidence
of suspicious circumstances, but has not gone so far as to
demon&rate that the panel did not, on the balance of
probabilities, consult relevant sources of information. The one
clear failure on the part of the selection committee in this
regard, of course, is the failure to consult the Grievor's
supervisor. Though it is not necessary for us to reach any
conclusion as to the severity of such a defect as a general
proposition, we do note that the failure to consult supervisors is
a~ factor .which renders substantially more serious the defect
.arising from the fact that Mr. Palmerio, the supervisor of Mr.
Eernot, was a member of the selection committee.
In summary, then, we are persuaded that the Employer's motion
for a non-suit should be dismissed. In reaching this conclusion,
we have been obliged to choose between the two lines of authority
found in the previous decisions of this Board represented, on the
one hand, by the decisions in Zuibrvcki and Newburn & Phillios and,
on the other, by decisions such as those in u and Genvs. We
have come to rest on a preference for the applicability of the
former line of authority for a'number of reasons. First, in
carefully looking at the factual distinctions that can be drawn
30
between these two lines of authority, we think the facts of the
present case - more particularly, the strength of the evidence led
by the Union with respect to the Grievor's qualifications and
abilities and secondly, the presence of a significant defect in
the competition process - suggest that the facts of this case are
rather more like those before the Board in the Juibrvcki and
n and Phw cases. We confess, however, to some
diffidence about the exercise of attempting to reconcile these two
lines of authority. To the extent that one must choose between
them, we have indicated earlier that we favour the approach taken
. . in Zuibrvcki and pewburn and Phw to that adopted in the other
authorities. Our reasons for this preference are consistent with
the views stated both by the majority and by the dissenting member
of the panel in the Colleaes and Universities case. In our view,
the Union should not be properly considered to be under a burden
to call, as its own witnesses, an incumbent party or various
members of the management team who may have participated in the
selection process. The whole point of a rule imposing a shifting
evidentiary burden is to avoid the necessity of one party being
required to call, as its own witness, a party opposite in interest
or one of such a party's senior officials. Accordingly, we share
the Views expressed in Juibrvcki and prewburn & PhilliDs to the
effect that once the Union establishes a u M case, the
evidentiary burden shifts to the Employer.
Finally, as the result of the foregoing analysis is that the
31
grievance must enjoy success, we must consider the question of the
appropriate remedy. A number of factors are relevant to this
question and, again, extensive submissions were made by counsel for
both parties on this point. First, we note that, as in Zuibrvcki,
we are not persuaded that the Union has established a prima facie
case that the Grievor is superior by a substantial and demonstrable
margin to thosq candidates - Ms. Robinson and Mr. Wood - who had
greater seniority than the Grievor at the time of the competition.
We are satisfied, however, that a prima facie case of relative
equality to the incumbent with lesser seniority, Mr. Kernot, has
been established. We note, further, that the principal defect
identified in the competition process, the presence of Mr. Palmerio
on the selection panel, is one which relates to a possible
advantage br apprehension of bias with respect to the candidacy of
Mr. Kernot. For these reasons, we believe that the remedy.should
be focused on the competition between Mr. Kernot and the Grievor.
We are persuaded by the submissions of counsel that the
possible remedies available to the Grievor in a case of this kind
includes both a rerunning of the competition and, alternatively,
the awarding of the position to the Grievor by order of this Board.
Accordingly, we have given much consideration to the question of
which of these two remedies is the more appropriate in the present
circumstance. A number of factors have led us to the conclusion
that the appropriate remedy in the present case would be to order
a rerunning of the competition between the Grievor and Mr. Kernot.
First, we note that in previous cases, the remedy of awarding the
position appears to be only granted in unusual circumstances.
Thus, in w, the Board had before it sufficient
evidence to reach a conclusion on the merits. In other cases, such
as Zuibrvcki v. The Crown in the Riaht of Ontario (‘ihe Ministrv of
ZJldustrv and- 100/76 (P&chard), (m No. 2) the very
same matter had previously been remitted to the parties for .
resolution without success. In other cases, as is stated in u,
referred to above, at pages 11-16, the Board has awarded the job
in cases where there has already been a determination on the merits
which is favourable to the Grievor or where, having regard to the
conduct of the Employer, there is reason to doubt that a fair
competition could be conducted were one to be ordered. None of
these factors are present in the current circumstance. Further,
in making a choice between a rerunning of the competition and the
awarding of the position, we note that the Union placed
considerable reliance.on the defect in the competition as a basis
for distinguishing the && and m line of authority. In a case
such as the present, where a problematic competition is an
important factor in the decision upholding the grievance, a
rerunning of the competition appears to be the more appropriate
remedy, in our view.
Assuming, then, that the parties are unable to resolve their
differences otherwise, we order that the job competition be rerun
subject to the following restrictions:
A.
B.
C.
D.
33
The position need not be posted again. Only the Grievor and
Mr. Kernot should be considered as candidates.
A new selection committee must be constituted, consisting of
no members of the previous committee.
The new committee is free to develop whatever-procedures and
questions it deems appropriate within the parameters of
Article 4.3 and this Board's jurisprudence.
As far as is possible, the selection committee should design
its process so as to avoid conferring an advantage on Mr.
Kernot asa result of the knowledge he may have acquired since
assuming the position which was the subject of the
competition.
The Board retains jurisdiction with respect to any points of
difficulty that may arise in the implementation of this Award.
Dated at Toronto this ,+gthday ofse&y. '., 1991.
"I Dissent" (dissent attached)
J. Solberg (member)
@&&- I
H. Roberts (Member)
.
Dissent by: Janet Solberg
Union Nominee
Re: Ontario Liquor Boards Employees’ Union (Cooke)
and the Liquor Control Board of Ontario (#2474/87)
____-__---_---_--------------------------------------------------
I find this decision troubling for many reasons.
First _ The award notes the agreement by the parties that the
proper interpretation of the standard set forth in article 32.4
requires appointment of the grievor to the job if he is
“relatively equal” to a more junior employee.
The award then comes to the conclusion (rightly, I believe) that
the Union made out its prima facie-case. based on the evidence of
the grievor and his supervisor, that the grievor had the ability
to do the job and was (at least) relatively equal in that ability
to the more junior employee who was one of the successful
applicants.
But, says the award, despite this finding, the Board will not
require the Employer to appoint the grievor to the job.
Second. The award determines that the Employer failed to
discharge its responsibility under article 32.4 to “give
consideration to the qualifications and ability” of the grievor.
The award then comes to the conclusion (rightly I believe) that
there were significant defects in the competition namely, that
the selection panel included a supervisor of one of the
(successful) applicants; that the selection panel failed to
consult the grievor’s supervisor; and that the selection panel
relied very largely (perhaps excessively) on the results of the
interview to make its determination.
But again, says the award, despite this finding, the Board will
not require the Employer to appoint the grievor to the job.
Third _ On the basis of all the analysis and after a careful and
thoughtful review of the jurisprudence, the award dismisses the
Employer’s motion for a non-suit. And moreover, in so doing,
clearly establishes the merits of the grievor’s position and
raises an apprehension of bias with respect to the Employer’s
ability to carry out an impartial competition.
But once again, despite this finding, the Board will not require
the Employer to appoint the grievor to the job.
Well, I don’t know where that Ikind of thinking leads. Is the
Board suggesting that these findings are only procedurally
relevant? That they are to be relied upon only to shift the
1
evidentiary onus? That the conclusions reached have no meaning
beyond merely determining the legal question of the non-suit?
It’s true that awarding a contested position to a grievor only
happens in unusual circumstances. It happens when the Board has
the evidence necessary to reach a conclusion on the merits or...
where, having regard to the conduct of the Employer, there is
reason to doubt that a fair competition could be conducted were
one to be ordered. I think that both criteria have been met in
this case and explicitly argued in the award itself.
Finally. This Employer knowingly took a “risk” by launching a
non-suit and not calling any evidence. The Employer expected
this Board to find that the Union had not made its Br-i-m.% _. f,a~cai..e..
Casey, that is, that the Union failed to prove that the grievor
was, at least, relatively equal to the more junior employee. The
risk, in such a situation, was that if the Board concluded that
the Union hadmade its prima facie-case, it would then award the
position to the grievor consistent with the proper interpretation
of the collective agreement.
But, the remedy proposed effectively nullifies any real risk. If
the Employer had called aaits evidence and lost, then the 8oard
might have ordered another competition. This Employer called no
evidence and lost, and the result is the same. That’s no risk.
That’s an open invitation for more of the same lkind of unyielding
and unhelpful behaviour by an Employer which does no credit to
labour relations or to the arbitration process.
In the end, the Union did all that was required. And up to the
point of remedy, the Board’s decision confirms every aspect of
the Union’s position in a systematic and thorough manner. But
the remedy itself, seems to me to have little basis in logic or
fairness. And with the passage of time, little relevance, as
well. With great respect, the Board’s ultimate decision also
does no credit to the arbitration process.
2