HomeMy WebLinkAbout1997-1404.Netta et al.99-12-20 DecisionONTARIOEMPLOYÉS DE LA COURONNE
CROWN EMPLOYEESDE L’ONTARIO
GRIEVANCECOMMISSION DE
SETTLEMENTRÈGLEMENT
BOARDDES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8TELEPHONE/TÉLEPHONE,(416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396
GSB # 1404/97, 0846/98, 0847/98, 0848/98, 0849/98
OLBEU # OLB242/97, OLB272/97, OLB253/97, OLB314/97, OLB273/97
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Liquor Board Employees Union
(Netta et al)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
BEFORE Loretta MikusVice Chair
FOR THE Elizabeth Mitchell
GRIEVOR Counsel, Koskie & Minsky
Barristers & Solicitors
FOR THE Alison Renton
EMPLOYER Counsel, Liquor Control Board of Ontario
HEARINGOctober 15, 1998
November 27, 1998
January 18, 19, 25, 1999
February 15, 1999
March 1, 1999
June 28, 1999
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There are five grievances before me concerning a job competition for sixteen vacancies for Customer
Service Representative positions at the LBCO. The grievances arise from a new provision in the collective
agreement which the parties agreed to include in the 1996-1998 Collective Agreement and which reads as
follows:
LETTER OF AGREEMENT
Permanent Vacancy Review
Retail-Permanent Part-Time
1.All currently employed Permanent Part-Time employees who worked sixteen hundred
(1600) hours or more in 1995 shall be offered Permanent Full-Time employment, within
the geographic posting area in which they are currently employed, within three (3)
months of the ratification date of this Agreement, provided his/her most recent
performance appraisal was rated at level 3 or better and has a satisfactory attendance
and discipline record.
Should a Permanent Part-Time employee not qualify to be offered Permanent Full-Time
employment, he/she will be reconsidered as per these terms at subsequent annual
reviews, prior to March 31, via the Local Labour Management Committee.
Once a permanent Part-Time employee has been offered Permanent Full-Time
employment as per these terms, he/she shall have one (1) week to accept such offer.
Failure to respond will be deemed as not accepting the offer of permanent full-time
employment.
2.Notwithstanding the above, Permanent Part-Time employees who choose not to accept
the offer of Permanent Full-Time employment shall have the right to continue as
Permanent Part-Time employees and all rights currently applicable to these employees
shall continue to apply.
3.It is understood the positions vacated by Permanent Part-Time employees accepting
Permanent Full-Time employment will not be posted. Further, the classification and
terms and conditions pertaining to Permanent Part-Time employees will cease to exist
when the remaining Permanent Part-Time employees exit the organization.
Distribution - Casuals
Within three (3) months of the date of ratification, the Employer agrees to post thirteen
(13) permanent full-time vacancies including vacancies currently posted.
Permanent Full-Time Vacancies
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Following the determination of the number of PPT employees that are offered
permanent full-time employment, casual hours of work shall be reviewed during the
annual review by the Local Labour Management Committee. The purpose of this
review will be to determine if permanent full-time vacancies exist. Specifically, casual
employees work will be reviewed where he/she works in excess of:
(a)1,600 hours or more in Warehousing
(b)1,700 hours or more in Retail Stores in the previous calendar year
It is agreed that work resulting from the following will be excluded from the review:
- sickness and/or accident
- vacation and leaves of absence including jury duty, bereavement, Union business, etc.
- temporary transfer/assignments
- modified work programs
- accommodations as required by legislation
-overtime
Should a casual employee work in the same position and Department/Store as per the
hours listed above for reasons other than those listed above, a vacancy shall be declared
and posted in accordance with the Collective Agreement provided it is not already
posted and/or there are no displaced Permanent Employees in his/her work area.
The Employer shall provide the Union with all information pertinent to the review.
This letter shall commence with the ratification of the Collective Agreement.
As a result of that new language, a file review was performed by the Employer which resulted in a job
posting in May of 1997 for 16 Customer Service Representatives Hereinafter referred to as ACSR@) full
time positions in Area G, which is Mississauga, Oakville and Brampton. The position posting was open to
all LCBO permanent part-time and casual employees in the area and stated the following:
Under the general supervision of the Manager, you will provide prompt, courteous and
knowledgeable customer service in accordance with the Customer Service Standards of
Excellence, participate in and comply with corporate initiatives as made mandatory (e.g. PKCC
levels, SMAART), keep abreast of and participate in timely execution of Ready for Business and
Retailer of Choice Standards, receive, handle, store and rotate stock in orderly, systematic and
safe manner; adhere to Occupational Health and Safety, WCB and WHMIS guidelines; support
and contribute to a harmonious and productive work environment, follow security procedures
of LCBO funds, stock and properties, exhibit ability to operate computerized systems and
interpret financial information, promptly and accurately complete all store reports and records;
be prepared to work extended hours based on operational requirements.
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Under qualifications were listed:
Position requires tact, diplomacy, good oral and written communication skills, ability to maintain
and contribute to positive interpersonal relations with customers, LCBO employees and trained
representatives, mathematical, clerical and accounting skills, ability to operate computerized
terminals (office or cash register terminals), good knowledge of cashiering and security
procedures, initiative and reliability, ability to work with minimum supervision and routine
checks, ability to meet the essential physical requirements of the job, general knowledge of
products and services offered by the outlet and by the LCBO which may include servicing of
licensees and agencies in a socially responsible manner. You should also demonstrate an
awareness of and support the LCBO strategies including Customer Service, Excellence, That's
The Spirit, and Ready For Business Standards. You will have successfully completed Product
Knowledge Level II and working towards Product Knowledge Level 3.
The posting also stated the following:
PLEASE NOTE:
-The area of search will be the geographical posting area.
-AQ-35 Form must be submitted with your store number or department number,
Employee identification number and the appropriate posting number accurately
recorded.
- Qualified PPT candidates will be selected in accordance with the procedures under
Article 21 of the Collective Agreement.
- Candidates from Casual status will only be considered when there are no qualified
Permanent Part-Time Employees.
- Casual candidates will be selected in accordance with the procedures under Article 31.4
of the Collective Agreement.
- Candidates must meet the following minimum criteria in order to be considered: a)
Past satisfactory work performance; b) Satisfactory discipline in
attendance records; c) French language services requirements, where
applicable
-Casual candidate qualifications will be determined through a process consisting of a
scored interview and scored past performance appraisals.
-A circular will be issued announcing the successful candidate.
Article 31.4 of the Collective Agreement referred to above reads as follows:
(a)Casuals shall have the right to apply for certain permanent part-time positions in
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accordance with the provisions of Article 21, Assignments & Job Postings. However,
accept as noted in Article 21.5(b) (special merit promotion), they shall only be eligible
to apply for vacancies within their geographical areas if there is no Permanent Part-
Time Employee promoted in accordance with Article 21.5(a).
(b)The Employer agrees to give consideration to the qualifications and ability of
casuals for permanent full-time vacancies at the entry level in their
geographical area, provided that no permanent part-time employees have
applied. Where qualifications and ability are relatively equal, seniority shall be
the determining factor.
As a result of that posting, 65 candidates were deemed to have satisfactory work performance and
attendance records: 40 of those applicants made the short list for interviews. Following the interviews,
numerous employees filed grievances about the failure of the Employer to award them one of the vacancies.
By the time the hearing was set for these grievances, five remained outstanding. Each of them grieve that
they were improperly denied a CSR position and asks that they be awarded the full-time position with
retroactive seniority, wages and benefits.
The Union took the position that the job competition was flawed in several aspects. It was argued that no
interview was necessary given that all of the grievors were clearly qualified to do the work. The job
applicants were evaluated on the basis of their job application, interview and previous performance
appraisals. No resumes were requested or considered, which would have given the interview panel a more
complete picture of the applicants. It was also argued that the composition of the interview panel was
improper which gave some applicants an advantage over others. The weighting of 40% for the
performance appraisals and 60% for the interview was improper and, as a result, the grievors were graded
more on their ability to handle an interview than on their ability to perform the work. It was also the
contention of the Union that the applicants were never told that their performance appraisals would be used
6
in job competitions and, therefore, things that they might otherwise have taken exception to, they did not.
It was also said that the screening process used by the LCBO misapplied the concept of relative equality
or, in the alternative, applied it too narrowly. Finally, it was the Union's position that the LCBO has never
used this process in awarding positions to casual employees but has always awarded jobs on the basis of
seniority.
The LCBO took the position that it had taken the appropriate factors into consideration in determining who
should be awarded the customer service representative jobs . They reviewed the last two performance
appraisals on file, irrespective of the intervals between them. The panel selected their questions from a bank
of questions provided to them and weighted them accordingly. Article 31.4 was applied properly, the
process was fair and the individual selection was made on a reasonable basis.
THE FACTS
Ms. Heidi MacNeil has been working with the LCBO since June of 1990 and for the last four years has
been a Human Resources Assistant in the central region which extends from Niagara Falls to Scarborough.
One of her major responsibilities is recruitment, and she has been involved in several job competitions
involving casual positions. She has a thorough knowledge of the job duties of a CSR. She is involved in
reviewing their job descriptions, being aware of their performance appraisals, speaking to the store
managers and generally working in the environment. She did not prepare the actual job posting but did
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make minor modifications with respect to the job location and posting dates. The job posting itself is
standard with respect to the qualifications required. It was sent to her from Mr. MacNaughton, the Director
of Human Resources, reviewed by the Regional Director, Harry Flynn and distributed to all the stores in
the area. Any part-time or casual employee in Area G was eligible to apply. She and her manager
prepared a recruitment process document setting out the stages of the recruitment process. Step 1 was the
posting of the notice. Step 2, the screening process, stated as follows:
Eligible candidates', discipline, attendance and performance appraisal records are reviewed.
Must have satisfactory discipline, attendance and performance appraisal or are screened out.
In a handwritten note it also stated AP.A. on file as of date of closing@. Step 3, the Interview
Process stated as follows:
Determine the number of employees to be interviewed by ranking in seniority order and using
between a 3-1 and 2-1 ratio. Look for gaps in seniority, where possible.
Interview using bank of CSR questions.
Weighting of performance appraisal will be 40%.
Weighting of interview will be 60%.
Step No. 4, the Determination of Successful Candidate(s), stated:
Overall pass mark will be 50%.
Relatively equal spread will be 20%.
Rank in order of overall score.
Promotions are granted to the senior employees within the 20% spread.
Then, based on the application forms, employee files and the seniority dates, she prepared a list of the
applicants setting out their store number, location and seniority dates. The candidates were vetted to
determine whether they had been the subject of discipline. During this competition, one applicant had a
notation for discipline and Ms. MacNeil discussed that applicant with the District Manager, Mr. Woon,
who advised her that he had responded positively to the disciple and approved him for the candidate's list.
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Then followed the process of reviewing and weighting performance appraisals. It was determined that the
two most recent appraisals on file would be used for purposes of the job competition and each appraisal
could receive a maximum of 25 points. In the past there have been three different systems used to evaluate
employees. The newest performance appraisals had been performed using the following five levels of
achievement: Aoutstanding@, Ameets expectations@ and Achange required@. They were given the following
values respectively; 1, .05 and 0. Another five level system was completed on a different five level formula
with the following values: AExceptional performance@, Above Average performance@, Aconsistently meets
requirements@, performance minimally satisfactory, improvement required@ and Aperformance does not meet
job requirements@. Those levels were given the following values respectively; 1, .05 and 0. Finally earlier
evaluations had been marked on a 4 level system with the following values: "more than meets
requirements", Ameets requirements@, Adevelopment required@ and "unsatisfactory". These levels were
valued respectively: 1, .75, .25 and 0.. If an applicant rated a score of 1 in a category, that score was
multiplied by a factor of 1. If that same applicant scored a 3 in another category, that score would be
multiplied by a factor of .05 or .25, depending on the system being converted. In that way all of the values
attributed to the various categories were converted to a numerical value that was worth up to 40% in the
job competition.
Ms. MacNeil then prepared interview lists for the week of July 14 to July 18, 1997 with an average of 8
interviews per day. The interview committee was provided with a series of questions from which they were
to choose ones that were appropriate for the interview. They could choose as many questions as they
wished so long as the total number of points did not exceed 30 in any one category or 100 points in total.
They chose, for example, two questions on customer service, one worth 20 marks, the other worth 10,
for a total of 30. They chose two questions on inventory management, one worth 15 points, the other worth
10, for a total of 25. They chose a 20-point question on merchandising, a 15-point question on loss
prevention and security and a 10-point question on social responsibility, for a total of 100 points. The
questions were pre-packaged and contained the topic, the question and the suggested answers. For
example, in the area of customer service, the question was:
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Our Customers Service Excellence Program encourages us to interact with our customers to
meet their demands. Describe for me a time when you assisted a customer who is considering
a dinner wine purchase. What questions did you ask? What, if anything, was asked of you and
how did you reply?
The suggested answers were:
- What will you be serving for dinner?
- What sweetness do you prefer?
- How many people will there be?
- What wines have you tried before that you enjoy?
- Do you like white or red wine?
- What price range are you considering?
- Do you have a preference for a particular country?
Another question on Merchandising asked:
You are assigned to set up the displays for the new period. List the steps you take to set up the
display.
The suggested answers were:
Clean Plinths - determine quantity - signage - pricer card
- recipe cards - height of display - image book - seasonality - cut quantity cases - backer cards -
promotional material, e.g. hand outs - ballots - aisle width - location - profitability - traffic flow.
The interviews were held in the Mississauga depot in a large training room which was set up much like a
board room. The three interviewers sat across the table and the candidates sat in front of them. It was
agreed that the room was quite cool. In front of the candidates stood a water glass and a notebook. The
interview began with casual conversation to welcome them and explain the process. The interviewers told
them they would be writing down their answers and, therefore, might not be able to maintain eye contact.
They advised the candidates that they would repeat any questions if necessary and that they could come
back to any question if desired. The questions were asked on a rotational basis by each of the committee
members, starting with Ms. MacNeil, Mr. Leigh and then Mr. Scott. The interviewees were told that each
interview had been allotted approximately 45 minutes.
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At the conclusion of the interviews the candidates were asked whether they had any questions and were
given an opportunity to raise any concerns. When they left the room the committee added up the points
they had allocated to each candidate individually and discussed them collectively. In a number of cases their
answers were close enough to constitute agreement. Occasionally the marks varied and the committee
members reviewed each of the questions and compared their answers to see if one of them had missed
something. The committee members= points in most respects were close enough to constitute unanimity.
As the candidates were asked the questions, the interviewees made tick marks beside the suggested
answers and at the end of the interview counted up those marks. In some instances, they gave additional
marks for answers not on the suggested list but relevant to the question. For example, one of the candidates
received a score of 5 out of 10 on the customer service question referred to earlier. In addition to providing
three of the printed answers, he also mentioned promoting Canadian wines and suggested that the customer
could get the wine of their choice from another source, perhaps by calling another store. He received two
points in addition to the ones listed above for those answers. In some instances the questions were given
more point value than the suggested answers listed. For example, on a question regarding the candidate's
role in managing the inventory of the stores, there were 9 suggested answers but the value of the question
was ten.
Some of the additional answers provided were counted while others were not. For example, in the loss
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prevention and security area, a candidate received a point for floor surveillance and another point for video
surveillance. Ms. MacNeil explained that the points were allowed because the candidate, in referring to
floor surveillance, meant watching the customers whereas the video cameras were meant to be used in a
broader sense. However, in the area of customer service, the candidate did not receive additional points
for commenting about having cash registers ready with clean tapes because, in her view, that came under
the category of "Ready for Business@ not security.
At the conclusion of the interviews, Ms. MacNeil prepared a chart of the interview results with the
candidates= names, store location, total appraisal and interview score, seniority date, whether they were
promoted and, if so, to what store. The highest score attained by the applicants was that of Mr. Scott
Grech, which was 73%. His seniority date is May 20, 1993. It had been determined that candidates were
required to have a minimum of 50% and that a 20 degree spread from the highest score would constitute
relative equality. Therefore, anyone who scored below 53% was not offered a position. The grievors fell
into that group. Mr. Antonio Netta scored 43%; Mr. Les Marozsan, 51%; Mr. Bruce Parkin 39%; Ms.
Rosemarie Norris 43% and Ms. Margaret Babcock 55%. None of them were offered positions and it is
their grievances that are before me.
In cross-examination, Ms. MacNeil agreed that the job duties of a casual permanent part-time and full-time
CSR are similar. The differences, in her view, are that casual employees do not have the same exposure
to the full operation of the store, including office procedures. In smaller stores in particular there is less
opportunity for a casual employee to perform the full range of a CSR=s job. Otherwise, the primary
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responsibility of casual, permanent part-time and full-time CSR=s is to provide service to the customers.
Ms. MacNeil also stated that it was irrelevant whether or not they had "run a shift" because it did not
pertain to the questions that they were specifically asking. "Running a shift" means taking total responsibility
for the store for an entire shift. She also suggested that it was not relevant whether the candidates had
worked in a large or small store, that their only concern as a panel was to obtain the suggested answers for
the questions. She also agreed that there had been some complaints from the candidates after the interviews
about the scoring and the intimidating setting and the nervousness it produced. She stated however that they
attempted to make the applicants as relaxed as possible. They told the candidates to take their time and
to come back to any questions if they wanted to add anything to their previous answer. They attempted
to make the interview as non-threatening as possible.
She was asked why she did not advise the candidates that there were actually 16 jobs at issue. She stated
that if asked, she told the candidates about the number of positions and agreed that some of them had
suggested that it was an unfair process. Ms. MacNeil also agreed that if a candidate had qualifications
beyond those being sought, for example, Product Knowledge 3, they received no additional credit because
it was not a job requirement. Ms. MacNeil spoke to Mr. MacNaughton about the fact that some managers
seemed to be more generous than others in completing the performance appraisals. She raised it in the
context of insuring a more consistent approach in the future. She also reported to Mr. MacNaughton that
she had heard employees comment on the fact that, if they had known of the importance of the performance
appraisals, they might have made more of an issue of some of the comments in them at the time. She did
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not raise it as an issue of fairness, but simply as an informational comment. Ms. MacNeil also conceded
that none of the additional comments made on any of the performance appraisals were taken into account
in the numerical conversion. If an employee had been praised for a particular keenness in any area, it was
not relevant to the questions being asked. The committee made no additional inquiries about the
performance appraisals beyond the numerical conversion. She stated that she was operating under the
assumption that each manager scored fairly. It was only after the interviews and some employees raised
the issue of fairness that she reconsidered her assumption. As well, employees working in specialty stores
or in areas other than the customary retail outlets receive no additional credit for their experience. For
example, one of the grievors worked in a vintage store and another worked in the warehouse. No
adjustments were made in their scoring to take their work locations into consideration.
Mr. Charles Scott was another member of the interview committee. He began working for the LCBO in
1982 as a casual and became a permanent CSR, bookkeeper, manager of a B store, and manager of an
A store in Mississauga with responsibility for all functions of human resources, inventory and sales. In 1988
he became an investigator with loss prevention. He had previously served as panel member in job
competitions concerning the hiring of casual employees into entry level positions and promotions from B to
A stores. This was the first time he had been involved in a competition of casual employees applying for
full time positions. He had been trained several years ago as an interview committee member, which training
included forming the committee, selecting the questions and marking of the answers. He was appointed to
this committee by the district manager of the area, Mr. Bob Woon. He was unaware at the time of the total
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number of positions to be filled. He had worked for the LCBO for a number of years at the time of the
interviews and knew many of the candidates, some by name only, some who had worked with him in the
past or presently and others he knew socially. He could not remember what involvement, if any, he had
with the conversion of the performance appraisals. He recalled working in the district office at the time and
having discussions with Ms. MacNeil and Mr. Leigh about how the scoring would be done but could not
remember whether he actually had a part in determining the final scores.
The interview panel met for the first time early in the morning of the first day of the interviews when they
determined that the questions would be asked in the following sequence, Ms. MacNeil, Mr. Leigh and Mr.
Scott, in that order. Mr. Scott brought the candidates into the room and introduced them to the panel
members. Mr. Scott had very little recollection of his scoring of the questions. He could only assume from
looking at the check marks and notes made on his question forms how he arrived at the totals he did. In
some cases there were six check marks and six points allotted and for other questions there were six check
marks and seven points, which he could not explain. In some cases he would make a check mark
immediately when the answers were given , in other cases he marked the form after the candidate had left
the room. After each candidate's interview, the three panel members discussed their results and, because
Ms. MacNeil did not have a background in retail, occasionally Mr. Leigh or Mr. Scott explained their
reasons for having given points in certain areas. They discussed the differences in the points they had
awarded in an effort to arrive at a consensus, or at least an agreement that was close enough to be
considered a consensus. He was asked how a candidate could be expected to get 10 points when there
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were only 8 selected answers. His response was that he would have been able to give 10 answers without
any problem and that what they were looking for was an understanding about what a customer would
require to be satisfied with the service. He pointed out that, while one of the questions was entitled
"Inventory Management", it actually had little to do with inventory management but had everything to do
with how to get along with fellow workers and subordinates. The question was designed to determine
whether an employee could function as a team member. All of the questions, in his view, related to the
actual job to be done by focussing on the various steps one would take to deal with a customer or to open
a store or to deal with inventory. All of the candidates should have had no difficulty in providing enough
answers to achieve the maximum points allotted. In fact, according to Mr. Scott, many of the answers
should have been "second nature" to the candidates.
Mr. Scott agreed that most of the major job functions of a casual and permanent CSR are the same but
that, in the larger stores, casual employees would not be placed in charge. Those job assignments are most
often given to the most senior permanent full-time employee or permanent part-time employee. Even some
junior full-time employees are never placed in charge of the larger stores. Some of the more complex tasks
would also not be done by a casual employee. For example, a full inventory forecast would not be
entrusted to very many part time employees and, in fact, Mr. Scott said he would do most of it himself if
he were the manager of the store. "Running a shift" requires a full understanding of all of the responsibilities
of a shift and the seniority requirements in the collective agreement dictate that it be assigned to full-time
employees in the larger stores. Scheduling would only be assigned to the most senior employee, usually
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the Assistant Manager. In a C or D store, a casual could be an assistant manager and would be expected
to perform all of those functions, but, in an A store and even some B stores, that would be unlikely. He
agreed that it was entirely possible that a casual employee from a D or C store could have more experience
than a full time employee in an A or B store. With the exception of the more complex tasks, Mr. Scott
agreed that a casual CSR would have done most of the duties of a full time CSR. During the interview no
inquiries were made as to where the applicants had worked in the past.
It was suggested to Mr. Scott that some of the candidates felt that he was inattentive and even bored by
the process. He explained that in the last job competition he was thought to be too intimidating and that
perhaps he over-compensated this time. He also explained that some people were very nervous and staring
at them is more of a disadvantage. He said he may have seemed inattentive but he was not bored.
While no resumes were sought, Mr. Scott asked each candidate whether they wanted to go back to any
question and whether there was anything they wanted to add. That was their opportunity to raise any issues
not already canvassed. He agreed with Ms. MacNeil's opinion that any qualifications beyond those sought
in the job posting were not relevant so that an additional product knowledge level would have been of no
added value.
Mr. Scott agreed that he tended to be a generous marker in performance appraisals and also agreed with
the suggestion that an employee who had received satisfactory performance appraisals should have
received a passing grade in the conversion. He acknowledged that some of the candidates who worked
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in his store had asked him about the competition. He told them what the setting would be like and
suggested that they should not assume that the person asking the question would know what they know.
He advised them there would be no penalty attached to answering more and that if a candidate was not
sure, it was better to give too much information than not enough. He was also contacted by employees in
other stores and gave them the same explanation. He advised them to give complete answers and that
anything they needed to know would be found in the various manuals. He did not see the actual questions
until the Monday morning of the interviews so he could not give them any specific direction. All of the
stores have the same manuals and training books so that each candidate would have the equal access to
them. For example, he advised them to review the SMAART Program (which stands for Strategic
Management of Age, Alcohol and Related Trouble) and the security procedures. He said the same thing
to everyone who called him, not just his own staff, and he was advised that other managers had given their
employees similar advice.
He was asked what was so exceptional about Mr. Grech=s interview and PA=s to warrant a score of 73%.
He responded that Mr. Grech gave almost textbook answers to the questions. He had taken material
home every night and asked Mr. Scott what else he could do. He followed up on every suggestion Mr.
Scott gave him.
Mr. Scott testified that after the interview he and Mr. Leigh were disappointed with the results of some of
the candidates. Some employees he had thought were very capable and had received good performance
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appraisals did not do very well at the interview. Some employees who he believed to be marginal in their
work performance did very well on the interviews. He attributed this anomaly to a "bad day".
Mr. Gary Leigh was the third member on the interview panel. He has been an A store manager in
Mississauga for the last ten years. His immediate supervisor is also Bob Woon. He began as a CSR in
1973 and had worked as a bookkeeper, clerk and assistant manager until his appointment to his current
position in Mississauga. He has sat on interview committees over the years, including those for positions
as store manager and district manager. He has been a panel member a number of times considering the
hiring of new casuals or casual promotions to full time CSR positions. He received the regional interview
committee training that Mr. Scott described earlier. He was aware that there were a number of vacancies
but had no involvement in the preparations for the interviews. He also knew some of the candidates: some
worked in his store, some he knew casually from working at the LCBO and others he knew personally.
All of the questions, in his view, were relevant to the position of CSR. The security procedures were
required as a result of "the world we live in." In addition, employees must be reliable, show initiative, be
physically able to handle the job, have a general knowledge of product management and be aware of the
SMAART Program, the Customer Service Excellence Program which sets out the standards that the
LCBO hopes to achieve and "That's the Spirit", a tutored series of courses to teach responsibilities relating
to the Company's goals.
Mr. Leigh was asked by Mr. Woon to be the chair of the interview panel but he did not meet with the other
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panel members until about 45 minutes before the first interview. He was involved in selecting the questions
from a predetermined set of questions provided to him and chose those that he felt were relevant to the job
of a customer service representative. They are part of a matrix in the training package intended to
standardize scoring and are used as a guide during training. The questions were all directed at an
employee's knowledge with respect to the product and how to satisfy customers. A CSR must know how
a product gets into the store for sale, what displays are most effective for customer appreciation, aspects
of security relating to loss prevention, shoplifting, stealing and the handling of cash. The Company takes
a very firm approach to social responsibility and expects CSR's to understand the legislation and to know
how to apply the SMAART Program with respect to the appropriate handling of customers. In his view
an experienced CSR should have been able to answer all of the questions in a manner that would reflect
their experience and knowledge. His role in the selection process was limited to the interview. His opinion
was not sought with respect to any candidate and he was provided with the list of successful candidates
once they had been approved.
Mr. Leigh has been involved in other interviews and agreed that the process usually involves a review of
an applicant's previous retail experience, customer service and inventory knowledge. As well,
consideration would normally be given to the resumes, application letters and references. The interview
process would be similar to the one utilized in this case. In the instant case he agreed that there was no
opportunity for the applicants to discuss their specific experience but that, in any event, it would not have
mattered in the scoring. He did not agree that the main aspects of the CSR position are performed by
20
casuals because they do not always get the opportunity in the urban and large volume stores to be assigned
that work. He conceded that proper training would ensure that everyone had been exposed to and was
aware of the proper procedure. The interview was intended to establish whether the particular applicants
to this job were qualified and competent to assume the full time position. Mr. Leigh rejected the suggestion
that they were looking for a "superior" candidate and suggested that they were looking for the best and most
experienced candidate, especially considering that all of the candidates were minimally qualified to perform
the work.
It was his evidence that the interview process for promoting casuals to full time positions has been evolving.
At one time only seniority was considered. Later, other factors were taken into account but more weight
was still accorded to seniority. Presently, only if the candidates are relatively equal does seniority factor
into the decision.
Mr. Bob Woon has been working for the LCBO since 1969 and for the past 7 1/2 years has been District
Manager in Mississauga and Brampton. His responsibilities involve customer service, merchandising,
budget and facilities management in 21 stores in his area. Mr. Woon had seen the list of candidates, was
aware of the process and was responsible for appointing Mr. Leigh and Mr. Scott to the interview
committee. He chose Mr. Leigh because he had been through the orientation program and had participated
in the selection of numerous casual hires. Mr. Scott was a manager of an A store who had again gone
through the orientation and training and participated in previous interviews. He had confidence and trust
21
in their judgment. He agreed that all of the candidates were qualified and able to do a customer service
representative's job but suggested that they might not have been exposed to all aspects of the job. He
testified that, in past competitions, committees had regard for an applicant's resume, current and past
experience, education, personal references, current job knowledge and interview. In this case no resumes
or references were sought. Although great weight was allotted to previous performance appraisals, he
conceded that managers are not consistent from store to store and that some of them were more generous
markers than others.
Mr. Wayne Zachar is the Director of Employee Relations and his duties within the Human Resources
department include responsibility for negotiating the collective agreement between these parties, the
grievance and arbitration procedure, health and safety issues and any other matters arising between the
Union and the LCBO. He was involved in the decision to change the process for job competitions involving
casual employees. The permanent vacancy review in this case, and no doubt in the future, was going to
result in numerous vacancies. The LCBO wanted a more consistent province-wide process that would be
fair to all concerned rather than continuing with the varying practices in the different regions. The LCBO
decided that a procedure which would allow them to determine relative equality criteria and to apply those
criteria in a consistent manner was required. He reviewed the draft documents for the interviews and
approved the weighting formula for the performance appraisals. He conceded that positive comments in
those appraisals were not given any weight. They did not ask for resumes in this case because they felt that
their inclusion would have been more an evaluation of how someone could prepare a resume rather than
22
the content of the resume. He also decided how much weight should be allocated to the interview and
performance appraisal and determined that more weight should be given to the interview because they had
more control of it than the subjective element of the performance appraisals. He took into account that
some managers were more generous than others and that personality conflicts could be reflected in the
performance appraisals. For those reasons he chose to place more weight on the interviews and less on
the performance appraisals. He also decided, from previous GSB decisions that the bench mark for relative
equality should be a 20% spread but that 50% was the lowest standard that they would accept in this
competition. The highest mark achieved in the process was 73% and so applicants between 73% and
53% would be considered acceptable. Employees achieving the highest marks within that range were
offered the full time CSR jobs
Mr. Zachar testified that after the inclusion of Article 31.4 into the Collective Agreement approximately 80
full time positions were created across the province. There were more than 100 casual employees who had
worked more than 1600 hours. His goal was to establish a process to evaluate relative equality in a fair
manner. He denied that they were attempting to reduce the matter to a mathematical formula and stated
that they worked very hard to devise a concept or framework with substance. Although there is an element
of mathematics in the conversion, there is still a qualitative assessment. Before this new process was
developed, there had been variation across the province in the awarding of vacancies. In some instances
they were awarded to a permanent part time employees with minimum qualifications but the most seniority.
The central region always had a more balanced approach while the northern region, in his view, was more
23
"extreme". In the central region, a casual employee wanting to move to permanent status had been
evaluated on the basis of his/her performance appraisals, attendance and discipline records. Assuming that
nothing negative surfaced in that review, the job would be awarded on the basis of seniority, except in
exceptional cases.
The job competition described gave rise to several grievances, five of which are before me. Mr. Antonio
Netta has been working at the LCBO since June of 1988 and has a seniority date of June 21, 1990. He
described himself as a loyal, hard-working employee with no discipline. He has always shown an interest
in improving himself and has all of the qualifications listed in the job posting. In fact, he has Product
Knowledge 3 and achieved more than 90% in all of them. He is presently working at the distribution centre
but has worked in retail stores in the past. He had worked with both Mr. Scott and Mr. Leigh as a casual
employee. Italian is his first language but he also speaks English and French, which he believes is an asset
that should have been considered during the competition. Although his duties at the warehouse are different
from those in the retail outlets, he nevertheless does deal with the public. The conversion of his performance
appraisals resulted in a score of 19.2%, even though he had never been told his performance was less than
satisfactory. One appraisal was dated September, 1996. He received a rating of 3, or Ameets
requirements@, in all of the categories except two, which were not applicable (inventory management and
merchandising). The Comments section stated as follows:
-Mr. Netta works well with little supervision
-he is in high demand at other stores in our area when not scheduled to work here
-shows a keen interest in learning about the operation
-always willing to work in other stores when needed
24
The other appraisal was dated September, 1994. In it Mr. Netta was rated a three in five categories and
two in two categories. Three means Aconsistently meets job requirements@ and two means Aabove average
performance@. Although Mr. Netta did not necessarily agree with the rating he received, he nevertheless
signed both PA=s without objection.
Mr. Netta scored 24.2 on the interview. He was given credit for 20 out of 30 points for the customer
service question, 9 out of 25 for Inventory Management, 4 out of 15 for Loss Prevention and Security, 5
out of 20 for Merchandising and 3 out of 10 for Social Responsibility. His total score was only 43% and
he was not offered a position, even though he is seventh on the seniority list. He had prepared a resume
setting out his employment history, his qualifications, his strengths, special skills and his education. He was
not asked for the resume and did not offer it to the panel during his interview.
Mr. Les Marozsan has been with the LCBO for eleven years and has a seniority date of July, 1991. During
that time he has acquired a four year economics degree from McMaster University and a two year business
administration certificate from Sheridan College. During his time at the LCBO he also worked at other
jobs, such as a bartender, flooring installer, and financial planner with Sun Life. In his duties as a casual
CSR he ran shifts and was responsible for payroll. He said it was unusual for a casual CSR to be assigned
responsibility for office or inventory management but his manager, Mr. Whitehead, had confidence in his
abilities. He has adjusted targets and inventory levels and been responsible for special orders. He has all
three Product Knowledge levels and attained a perfect score in the first two. He also brought a resume to
25
the interview but was not asked for it. He said he did not discuss the extra duties he has performed
because, in his view, there was no opportunity to do so. He was given a rating of 25 for the interview. He
did not know in advance of the interview what would be expected of him and he thought he had answered
the questions well. He said Mr. Scott looked like he was sleeping and asked his questions as if he did not
care about the answers. Mr. Marozsan found the entire process unnerving and felt he deserved better
treatment. He received, at best, 12 out of 30 for Customer Service, 10 out of 25 for Inventory
Management, 9 out of 20 for Merchandising, 2 out of 15 for Loss Prevention and 10 out of 10 for Social
Responsibility.
His performance appraisals were given a numerical value of 26.1. The first PA was dated September,
1995. He was rated at a 2 level for Customer Service, Stock Handling and Merchandising. He was rated
a 3 at Inventory Management, Knowledge of Operation and Work Area, Communications/relationship,
Safety and Protection of LCBO Assets, Cost Efficiency, Appearance and Punctuality and Attendance.
There was one additional comment: AWorking with Les is a pleasure and I hope one day he has the chance
to work fulltime@. The second PA was dated September, 1996. The marks he received were similar to
the ones in the 1995 PA except that this time he was given a 3 for Merchandising, instead of a two. The
only comment was Agood worker, self starter@. His total mark was 51 %, two percent lower than required.
Mr. Bruce Parkin has been with the LCBO since 1998 and has worked at the same store since 1989 under
Mr. Harold Craven. His seniority date is December, 1991. He described his duties as being similar to
26
those of a full time CSR position. He has been responsible for cash, inventory management, target
adjustments and running a shift. Whenever there is no full time CSR on duty, Mr. Parkin assumes their
responsibilities. He received 21.1 for his PA=s. The first one was dated September, 1995/96 and his
performance rating was a 3 or AMeets Requirements@. He was given an outstanding mark (1) for
Merchandising, two for Customer Service and Stock Handling, and 3 for Knowledge of Operation and
Work Area, Communications/Relationships, Safety and Protection of LCBO Assets, Appearance and
Punctuality and Attendance. Under comments it was stated ABruce shows keen interest in promotions and
display. Willing to work anytime and will change shift to help store when in need@. The other PA for
1994/95 was not as favourable. He was given a 3 in all categories and the comments were ABruce is a
good employee. Willing to work anytime. Bruce will change shifts to help the store when in need@. Mr.
Parkin voiced his dissatisfaction with the PA=s to his Manager at the time and was told that no one paid any
attention to them and that they were just for the file. He was told they would not be considered for any
other purpose.
Mr. Parkin was given 17.8 for his interview. He received 7 out of 10 points for Customer Service, 9 out
of 25 for Inventory Management, 5 out of 20 for Merchandising, 3 out of 15 for Loss Prevention and
Security and 6 out of 10 for Social Responsibility. He was very uncomfortable. He had to shout across
the room and the atmosphere was very cold. He did not bring a resume and he was not asked any
questions except for the preselected ones asked of all the applicants. Mr. Scott seemed to be totally
disinterested and was a distraction. He did not look at Mr. Parkin and held his head in his hands the entire
27
time. Mr. Parkin had asked his manager about the interviews and had been told to Alook it up@ in the
manual. Mr. Parkin thought he had done well at the interview and was surprised by the results. He was
not concerned because he thought his work record would speak for itself.
Ms. Rosemarie Norris has been employed by the LCBO since 1990 and has a seniority date of April 5,
1992. Before that she worked for 12 years at a Dominion grocery store. She works at the vintage store
and her responsibilities are somewhat different as a result. She had completed all Product Knowledge
levels before the interview for this job competition. Her manager, John Tait, completed her PA=s, which
he treated as Asomewhat of a joke@. His practice was to fill in the appropriate spaces, call the employee
into the office, read the PA to them and have them sign it. No one took them seriously and, if Ms. Norris
had known they would be used in job competitions, she would have paid more attention to the contents.
For example, she worked every shift she was offered and should have received a 1 for punctuality and
attendance. Instead she was given a 2, which she accepted. Her overall rating for her two PA=s was 27.
The first one was done in 1996 and gave a general rating of 3 or Aconsistently meets job requirements@.
The format was slightly different from the one used for the other grievors. In her case there were three
columns, one for a rating from one to five, a second setting out the area covered and the third for comments.
That portion of the PA=s is set out below. The bolded number on the left is the score she was given.
RATING AREA COMMENTS AND EXAMPLES
1 2 3 4 5A. Knows and follows work procedures
and regulations
Rosemarie has read operating manual
and follows procedures well
1 2 3 4 5B.Complies with safety and security rulesRosemarie observes all security regs
28
and regulationsand works in a safe manner
1 2 3 4 5C. Meets customer service standardsRosemarie has attained Level 2 of
Product Knowledge and assists
customers in a friendly manner
1 2 3 4 5D. Communicates information and ideas
clearly to supervisors, staff and customers
Rosemarie communicates clearly to
peers, mgr and customers often helping
staff with import procedures
1 2 3 4 5E. Achieves productivity levelsRosemarie works efficiently and well at
jobs assigned
1 2 3 4 5
F. Performs job functions accuratelyRosemarie is very competent at all jobs
assigned but is a very accurate cashier
1 2 3 4 5G. Demonstrates reasonable punctuality
and attendance records in accordance with
agreed schedules of work
Rosemarie is rarely late and seldom has
missed assigned shifts
Under the heading of Summary comments was written ARosemarie is a friendly, efficient and
accurate worker@.
The 1995 PA was, in some respects, better than the one set out above.
RATING AREACOMMENTS AND EXAMPLES
1 2 3 4 5 A. Knows and follows work procedures
and regulations
Rosemarie is familiar with and follows
procedures well
1 2 3 4 5B.Complies with safety and security rules
and regulations
Rosemarie works in a safe manner and
observes all security rules
1 2 3 4 5C. Meets customer service standardsRosemarie is pleasant & friendly to our
customers. She feels more confident
with increased knowledge. She will
complete PKII by Oct.30
1 2 3 4 5D. Communicates information and ideasRosemarie communicates well and
29
clearly to supervisors, staff and customerselucidates ideas clearly
1 2 3 4 5E. Achieves productivity levelsRosemarie works very efficiently in
pricing releases usually on her own.
Finishes in 1/2 time expected
1 2 3 4 5F. Performs job functions accuratelyRosemarie is a very accurate cashier
and rarely makes mistakes in pricing
1 2 3 4 5G. Demonstrates reasonable punctuality
and attendance records in accordance with
agreed schedules of work
Rosemarie is never late and never has
missed any assigned hour.
In the Summary Comment slot was stated ARosemarie is a good worker who has also been learning
advanced office procedures@.
For the interview, Ms Norris was rated at 16.2, for an overall rating of 43%, which was not enough to
warrant a job offer. She scored 12 out of 30 for Customer Service, 6 out of 25 for Inventory Management,
4 out of 20 for Merchandising, 3 out of 15 for Loss Prevention and Security and 2 out of 10 for Social
Responsibility. She had never participated in an interview before and found the experience to be cold and
intimidating. The room was very large and cold. Mr. Scott did not make eye contact with her and did not
seem interested in her answers. She thought they would be interested in short, pointed answers and
discovered later that they were looking for more detail. She advised the panel that it was different in a
vintage store but they did not ask her for an explanation of those differences. For example, there is no
rotation of inventory in a vintage store. As well, she has never had to deal with underage or intoxicated
customers in her store. She has since completed the SMAART program and is aware of the responsibilities
of a CSR in that regard.
30
As stated previously, the fifth grievor, Ms. Margaret Babcock, was not at the hearing and the parties are
agreed that, if any adjustments are made to her seniority by the WSIB, we will deal with her grievance at
a later date, if necessary.
ARGUMENT
Ms. Mitchell, counsel for the Union, submitted that all of the grievors were performing the duties of a
customer service representative satisfactorily. The duties they were performing on a daily basis were the
very duties they would have had to perform had they been successful in the job competition. They had
already passed the first screening and there were no negative comments with respect to their attendance
and/or discipline records. While the Employer is free to introduce an interview process if it chooses, it begs
the question why there was any need to change the past practice. There is no evidence that the past
practice was not effective. The scoring process used to convert the grievors= performance appraisals
resulted in some grievors failing to meet the threshold, notwithstanding the fact that they had actually
performed the job duties for a number of years. It is obvious that the scoring scheme was not connected
to actual job performance and, therefore, was simply wrong.
The Union has several objections to the process. First, it takes the position that Article 34.1 was applied
too narrowly. The LCBO did not take into account all of the relevant information it had before it. That
relevant information should have included the supervisor's comments on the grievor's performance, a resume
of their past experience and their entire personnel file to determine where they had worked in the past and
31
any additional qualifications they might have possessed that did not emerge in the interview. The process
used by the LCBO did not take into account satisfactory performance on the actual job. The interviews
did not assess qualifications but rather were an artificial weeding out of applicants. The 60% allotted to the
interview is proof of that. Clearly the grievors were marked not on their performance but rather on how
well they could handle an interview.
The mathematical approach to the performance appraisals was inappropriate and incorrect. The documents
were not designed to be reduced to numbers. They have subjective comments in them that in most
instances would have been beneficial to the grievors, but which were ignored. Neither did the Employer
take into account the fact that some managers graded more favourably than others, resulting in a higher
mark for some and a lower mark for others. Where there were inconsistencies between the mark given and
the comments made on the performance appraisal, no adjustments were made to compensate.
It was also argued that comparing all candidates against a "ghost" candidate instead of applying the
comparisons to the successful candidates, was inappropriate and incorrect. Mr. Grech scored 73% and
all of the candidates were compared against his total. In a normal process Mr. Grech would have
competed for a job and, once he had been offered a job, would have stepped aside. The other candidates
would have been compared as against the remaining candidates. Because Mr. Grech did not have enough
seniority to be awarded a job, the LCBO nevertheless used him as the bench mark for all other candidates.
As a result he was the threshold all sixteen candidates had to meet every time.
32
The Union also asserted that there was an apprehension of bias in the selection of the panel and in its
operation. For example, a decision was made to waive the discipline on one applicant's file, notwithstanding
the Employer's clear assertion that discipline would eliminate a candidate. In addition, two of the panel
members had been managers of stores where some of the applicants had worked in the past or were
presently working. As a result of that personal knowledge, some candidates were given instructions about
the interview and the questions that others were not. Although those instructions were general in nature,
nevertheless, they pointed those candidates to the manuals and instructed them to give complete answers
to all of the questions, which gave them an edge at the interview. Mr. Leigh said that Scott Grech had given
an exceptional interview, which is not surprising given that he had spoken to Mr. Scott about the interview
process many times and had been given some direction.
The Union also argued that the LCBO was protected in this case by the fact that there is a six month
probationary period when an employee is promoted to a new position. If the candidates had not performed
satisfactorily in the full time position they could have been returned to their casual status. The need for an
interview process at all is questionable in the circumstances. For example, Mr. Netta has been with the
LCBO for nine years, has passed all three product knowledge courses successfully, has worked at the
warehouse and served licensees, picked orders and worked at retail stores. He has even worked with Mr.
Scott and Mr. Leigh occasionally. He speaks English, French and Italian, assets that the LCBO
acknowledged would be beneficial. He has had more than satisfactory PA=s and yet he scored 19.2 out
33
of 40 on the appraisal and 24 out of 60 on the interview, for a total of 43%. Mr. Marozsan has a seniority
date of 1991, a degree in economics and business administration, and has been performing the identical
duties of a full time CSR. He has run shifts, done payroll and adjusted targets and inventory. He has
trained new casual employees, a process that was not elicited during the interview. He has Product
Knowledge 1,2 and 3 and yet only scored 51% through the interviews and performance appraisals. Mr.
Parkin has a seniority date of 1991 and has worked for the LCBO since 1998. As a casual CSR he has
done all of the duties of the job including inventory management, responsibility for the image book orders
and target adjustments. He scored 39% in total, only 17.8% out of 60 for the interview. He has Product
Knowledge 1,2 and 3 and is clearly qualified to do the work. Ms. Norris has been with the LCBO since
1990 and has a seniority date of 1992. She has worked at the vintage store, completed all three levels of
product knowledge with honours, has prior experience as a clerk at Dominion, has additional product
knowledge of vintage wines and yet scored 43% in the process. Even Ms. MacNeil acknowledged that
she had concerns about the relevance of the interview when above average employees like Mr. Netta and
Mr. Parkin scored less than a passing grade. She agreed it was a test more of their ability to handle an
interview than of their abilities as a CSR.
All of the LCBO's witnesses agreed that the casual CSR's did essentially the same duties as a full time CSR,
with some exceptions. In some stores a casual CSR could have had more experience than a full time CSR
in a larger store, depending on the number of staff available and the level of responsibility designated to him
or her. a CSR who had run shifts and had assumed additional responsibility for the operation of the store
34
got no extra credit because of the manner of the interview and the performance appraisal conversion.
In summary, the Union's first position was that there was no need for an interview in the first instance. The
casual employees had performed the duties of a full time CSR for a significant period of time. They were
all qualified to do the work and there was no need for them to compete with each other for a position.
In the alternative, if this Board should find that the Employer was entitled to introduce an interview process,
the Union asserted that the weighting of 60% for the interview was inappropriate and was intended to
evaluate the grievors= ability to handle themselves during an interview rather than measure their competency
to perform the work. In addition, the performance appraisals were not designed to be reduced to a
mathematical formula and should have been used as a subjective assessment for relative equality. The fact
that the LCBO ignored relevant comments in those performance appraisals was inappropriate and unfair.
The panel members did not consider relevant factors such as the opinion of the store managers who
actually completed the PA=s and the favourable comments in their performance appraisal.
Additionally, there was an apprehension of bias which in and of itself should be sufficient to set aside the
competition. For example, store 458 had three applicants who all received above average scoring during
the interview. All of them had worked under Mr. Leigh and Mr. Scott. One of them scored 29.9, the other
24.8 out of 40 on their performance appraisal conversion. It appears that they had an advantage over the
others for those reasons. In fact, Mr. Scott Grech was given materials to study at home and after he had
35
read them was given additional materials. He clearly had an advantage over the others. One applicant was
allowed to compete even though he had discipline on his file, which should have eliminated him at the first
screening.
Finally, is the issue of the "ghost" candidate. The grievors should have been compared to someone who
actually got the job, not someone who was never in the running. a true comparison would have been to
compare Mr. Netta, for example, to somebody with less seniority than he who actually was offered a job.
Mr. Marozsan passed the minimum threshold, but that was not enough when compared to Scott Grech.
The Union asked that the grievors be awarded the position of CSR with retroactive pay and benefits.
In support of its position, the Union relied on the following cases: Re Greater Niagara General
Hospital and Ontario Nurses' Association (1992), 60 L.A.C. (4th) 289 (Devlin); Re Currans and
Chaput and Liquor Control Board and Liquor License Board of Ontario (1998), GSB #0923/97 and
0924/97 (Knopf); Re Hall/Powers and Ministry of Correctional Services (1990), GSB #716/89 and
866/89 (Gorsky); Re Skagen and Glemnitz and Ministry of Attorney General (1998), GSB
#1934/87 and 1936/87 (Springate); Re Bechard and Liquor Control Board of Ontario (1998), GSB
#0900/97 (Watters); Re Great Atlantic and Pacific Company of Canada Ltd. and Canadian Food
and Allied Workers Union, Locals 175 and 633 (1979), 21 L.A.C. (2d) 444 (Weatherill); Re
McIntyre and Ministry of Community and Social Services (1987), GSB #0141/85 (Knopf); RE
Poole and ministry of Health (1988) GSB#2508/87 and Re Eaton and Ministry of Transportation
36
and Communications (1987), GSB #0629/85 (Knopf).
Ms. Renton, counsel for the LCBO, began by reminding the Board that the interview process was
introduced by the LCBO in order to be fair to its employees. The past practice had differed throughout
the province and this was the first time that this form of job competition was being used in an effort to
provide a standardized provincial job posting procedure. Even if the job competition clause had involved
a threshold instead of relative equality question, the LCBO still has the right to introduce an interview
process if it chooses in order to ensure that the candidates are being compared properly. All of the
candidates knew before they entered the interview room that was to be the process and they should not
have been surprised at the interview.
The LCBO decided to use the last two performance appraisals on file, which was the fairest way to
proceed. Some applicant=s had more recent PA=s on file than others, but each candidate had the benefit
of having two performance appraisals considered. When the performance appraisals were converted to
a number, the same process was used for all applicants and the scoring was done before the interview so
that there could be no claim of bias. There is no evidence that the results were incorrect. The performance
appraisals indicate how an employee was rated as a casual CSR, but the scoring was done to convert that
assessment for evaluation for a full time position. That explains why some grievors like Mr. Netta scored
nothing in some areas. The position was for a retail CSR and not for the depot, warehouse or vintage store.
The grievors have, in the past, grieved performance appraisals and Mr. Zachar specifically said that
37
grievors have a right to grieve an unsatisfactory performance appraisal. As well, employees have an
opportunity to write their objections on the performance appraisals. The candidates were advised on the
posting that their past performance appraisals would be reviewed so it cannot be said that they were
unaware of the use of those appraisals.
The LCBO asserted that allotting 40% for the performance appraisals was fair. The interview was not the
only factor to be considered, but in light of the fact that all these grievors had performed some of the duties
of a CSR, it was reasonable that more weight be given to the interview. Their personnel files were
canvassed with regard to their attendance and discipline records. There is no evidence to show that
additional factors from those files should have been considered. The Union has stated that the interview
process was flawed because the supervisor's comments were not considered. In fact, the scoring of the
performance appraisals reflected the supervisor's comments. The Union has failed to establish that the
results would have been different had those factors been taken into consideration.
The Union has taken issue with the fact that one applicant was given an interview despite the fact that he
had discipline on his file. The LCBO contended that, if that applicant had been denied an interview solely
on those grounds, the LCBO would have been before this Board on a different grievance. In any event,
Mr. Woon's evidence was that he waived the discipline because he thought that the applicant had benefited
from the experience. The reprimand was eighteen months old and there had been no further incidents. The
process was not to automatically eliminate somebody because of a poor attendance record or discipline
38
but to consider each case on its own merits. That's what Mr. Woon did.
The Union has suggested that there was bias in the interview because the applicant whose discipline was
waived had worked in Mr. Scott's store. Some of the applicants who had worked in Mr. Scott and Mr.
Leigh's store were eliminated from the process at the outset. There was no bias in the selection of
candidates to be interviewed or in the actual interviews themselves.
The Union has suggested that the questions asked were not relevant to the job. Both of the store managers
on the interview committee testified that the questions were, in fact, directly related to the job of a CSR and
that they would have expected a CSR with experience to have been able to answer all of them. The
questions were very broad and were intended to illicit numerous responses, all of which would have been
credited to the candidate.
The value given to relative equality was based on the Falcioni decision (supra), which considered the same
language at issue in this case. That's why Mr. Zachar decided 20% was an appropriate range. It was a
broad range selected to reflect an entry level full time position. Even setting aside the issue of relative
equality, the fact is that Mr. Netta, Ms. Norris and Mr. Parkin did not achieve a 50% result and would not
have been offered a job in any event. Only Mr. Marozsan would have qualified. Ms. Babcock, if her
seniority date is adjusted as a result of the WSIB decision, she would have been entitled to a position and
the parties will be back before this Board for direction, if necessary.
39
Ms. Renton took the position that the Union's interpretation of Article 31.3 is incorrect. There is no
probationary period when a casual employee is promoted to a full time position. Article 21 is modified by
Article 31.4 and does not address the situation of a casual CSR moving to a full time position.
The LCBO took the position that if the grievors succeed in whole or in part, the competition ought to be
rerun. The list of candidates shows that some employees with more seniority than the grievors did not
grieve. a re-running of the competition is consistent with GSB jurisprudence and the Lowe and Forest
case, (supra).
It was said that the cases relied on by the Union do not assist it in any material way. In the Hall decision
(supra), the employer only considered experience as 15% of the grievor's total score and 85% was allotted
to the test. That is not the situation in the instant case where the percentages were much closer. In the
Skagen decision, the incumbents were chosen only on their performance at the interview which, again, is
not the case before you. In the McIntyre case, (supra), there was an allegation of an apprehension of bias.
Only the interviews were considered relevant and no reference or supervisory checks were done. That
is not the case before you. Similarly, with the Eaton case, (supra), there is no evidence before you that the
panel members treated anyone differently. The Union suggestion that the store managers unfairly assisted
some grievors is not supported by the evidence and is without merit. Mr. Scott was asked about the
applicant's discipline, but it was Mr. Woon who made the decision to waive it and grant him an interview.
40
With respect to the allegation that Mr. Leigh and Mr. Scott assisted some applicants and not others, the
fact is that when they were approached, they responded. They directed them to the proper manuals but
gave them no specifics. Those manuals were available to all employees.
In support of its position the LCBO relied on the following cases: Re Laforest and Ministry of
Community and Social Services (1989), GSB #1983/87 (Roberts); Re Wayne and Lowe and
Ministry of Transportation and Communications (1988), GSB #1147/86 and 1148/86 (Barrett); Re
Miller and Liquor Control Board of Ontario (1983), GSB #348/82 (Samuels); Re Saras and
Ministry of Labour (1987), GSB #457/85 (Swan); Re Falcioni and Liquor Control Board of
Ontario (1993), GSB #2308/91 (Kaplan); Re Woods and Ministry of Transportation (1988), GSB
#2253/87 (Watters); Re Bent and Ministry of Transportation (1989), GSB #0031/88 (Knopf)
REASONS FOR DECISION
In the Wayne and Lowe case (supra), the grievors were two of twenty applicants for seven vacancies for
the position of "Inquiries Specialists" with the Ministry of Transportation and Communications. An interview
committee was set up. Questions were asked relating to three main areas of skill; interpersonal and
communication skills, problem solving and technical skills. Each of them were allotted a value and to that
stage in the process there is no dispute that the procedure was fair and objective. The difficulty occurred
after those interviews when the scores were reduced by the committee members. For example, the grievor
received a perfect 20 marks on their interpersonal skills interview sheet, which was later reduced to 12
41
during the consensus meeting. Once the consensus scores were established, further changes were made,
although it was unclear at what stage that occurred. In any event, the grievor's original score of 372 was
reduced to 312 and she went from being 6th out of the 20 competitors to 10th place. No reference checks
were made at that point in time. One candidate was eliminated and the other 7 were offered the vacancies.
One person refused the job, leaving one vacancy to be filled. Candidates ranked 9 - 13 were within 10%
of each other and so reference checks were made on all of them as a form of a "tie breaker". They were
checked out by one member of the committee who looked at the written performance appraisals in the
employee's file and spoke with their supervisors. Despite a very favourable performance appraisal, this
committee member concluded that the grievor was "unable to retain knowledge, insecure, lacks confidence,
too much double checking, voice audio is poor..." The grievor received a score of 30 out of 100 and was
cut from the competition. In considering previous GSB decisions concerning the criteria for arbitral review,
the Board referred to a 1993 decision (Marek, GSB # 414/83) and summarized the jurisprudence as
follows:
It is hard for this Board to understand how this could occur, in view of the repeated
direction this Board has given on the need to consult personnel files and candidates'
supervisors. Particularly when one of the candidates only is known to the
interviewers...see, for example, MacLellan and DeGrandis, 506/81, 507/81, 690/81 and
691/81, wherein the jurisprudence is summarized at page 25 and 26...
The Board concluded that the written performance appraisals did not justify the low scores and, in fact,
justified a considerably higher score than the grievor had received. Neither of the other committee members
had access to any of the original source materials in the reference checks and relied the other committee
member=s subjective views of them. The Board went on to find that the selection process was so
42
fundamentally flawed that a new competition had to be held with all 20 original applicants for the job eligible
to apply. It should be noted, however, that it was the Union's position that the competition should be rerun.
It did not ask that the jobs be directly awarded to the grievor.
In the MacIntyre decision (supra), the grievor applied for an income maintenance officer position, which
was awarded to another candidate. The Board found that the competition was conceived and processed
in good faith. The use of the preset oral and written examinations and the interviewer's efforts to ensure that
the same questions were asked of all candidates in the same order achieved procedural fairness, there was
no fault in the tests themselves in the way the written examination was presented nor in the way that the
scores of the test were calculated. There was, however, concern expressed over the fact that there were
only two members on the interview committee, one of whom had worked for a number of years with one
of the applicants and the other who had worked with another applicant. The Board noted that one of the
reasons for having a selection panel is to "offset the natural and understandable predisposition of one
interviewer who may be familiar with some candidates with more objective impressions gained by
outsiders." It felt however that the selection of the panel members could create a legitimate concern over
the ability of the selection committee to be objective. It suggested that a third person on the panel might
have alleviated that concern.
The most serious problem, however, in the process was the fact that the selection committee had failed to
investigate and consider all of the candidates= references and personnel files. It referred to earlier Board
43
jurisprudence and suggested that it would not have been too cumbersome in this case to do a similar
thorough check. It ordered that the job competition be re-run on conditions.
In the Pool case (supra), the grievor, a registered nurse, bid for the posted job of hospital educator and was
unsuccessful. Six candidates submitted detailed applications and resumes, including the grievor. Five were
granted interviews and at the interviews a series of questions were asked of each candidate to illicit
information concerning their qualifications and experience. The candidates were scored on those answers.
The Board emphasized that these scores were done "without any regard to the information on the
application forms or information which might have been found in personnel files or information from the
applicants' supervisors at the hospital@. It noted that it was Ministry policy to base its decisions in these
circumstances entirely on the scores at the interview. The Board referred to previous GSB jurisprudence
and characterised the Ministry's policy as "incomprehensible." The Board noted at page 4:
There must be a full gathering of information concerning the qualifications and ability of the
applicants. It is simply not satisfactory to conscientiously ignore information as was done
here. For some reason, the grievor did not do well at the interview (we have a great deal of
difficulty understanding this and we will have something to say about this in a moment.) The
three members of the panel were left with the impression that the successful candidate had
better qualifications and experience than the grievor, but a look at their application forms would
have confirmed that the grievor was a senior nurse with much experience in the very matter
which was to be taught to the 800 staff members at the hospital, while the successful candidate
had just graduated from nursing school, and had no experience what so ever in this area. In our
view, the decision of the panel was simply perverse and this resulted from its profoundly flawed
procedure.
The Board in that case went on to explain at great length why they felt that the grievor was more superior
to the incumbent. The Board described the incumbent as a "bright young woman" who "simply has virtually
no experience as a Registered Nurse. What is clear is that Ms. Tunks knows how to handle an interview."
44
The Board went at page 7 as follows:
In summary, we find that the selection process was entirely inadequate. The ultimate total
reliance on the interview as an information-gathering and scoring tool resulted in an assessment
of the relative merits of the candidates which had no real basis in fact. In particular, the panel
failed utterly to see the grievor as she was, in spite of the fact that the information was in its
hands or readily available.
The Board went on to award the job to the grievor in light of their finding that she was the most qualified
candidate.
In the Bent decision (supra), the Board made the following observations:
The Grievance Settlement Board has often been asked to consider the rights and responsibilities
of the parties in terms of interviews for job competitions. The jurisprudence is well summarized
in the Kuyntjes case, (supra) at page 5:...
It has been well established in the Board's jurisprudence that the employer must use a
process of decision-making which is designed to consider the relevant qualifications and
ability of a candidate in a competition which will ensure that sufficient relevant
information is adduced before the decision-makers so that they are able to make an
informed choice (Remark, 149-77: Quinn, 9/78)...
If the eventual decision about who gets the job is to be based on relative qualifications
and abilities, it follows that all steps leading up to that decision must also satisfy the
requirement that they lead to valid and relevant information about qualifications and
abilities being brought to the attention of the Selection Board. If the pre-screening
screens out better qualified candidates, the eventual decision cannot help but be faulty.
Therefore, while there is clearly no right to an interview in the Collective Agreement,
the nature of the eventual decision to be made requires that the pre-interview screening
be done in a comprehensive and fair manner.
Another summary of the criteria that have been established and universally accepted by the GSB
is found in the Marek decision (GSB # 414/83) as follows:
The jurisprudence of this Board has established various criteria by which to judge a selection
45
process;
1.Candidates must be evaluated on all the relevant qualifications for the job as set
out in the Position Specification.
2.The various methods used to assess the candidates should address these
relevant qualifications in so far as it is possible. For example, interview
questions and evaluation forms should cover all the qualifications.
3.Irrelevant factors should not be considered.
4.All the members of the selection committee should review the personnel files
of all the applicants.
5.The applicants' supervisors should be asked for their evaluations of the
applicants.
6.Information should be accumulated in a systematic way concerning all the
applicants.
See Remark, 149/77; Quin, 9/78; Hoffman, 22/79; Ellsworth et al, 316/80; Cross,
339/81.
In Leslie, 126/79, the primary basis on which this Board ordered a new selection process was
the fact that the interviewers knew one of the candidates, and had relied on the interviews alone,
without any recourse to the supervisors of other candidates nor in, Leslie, had the interviewers
referred to the grievor's personnel file or performance appraisals. In our view, this conduct
alone fatally flaws the selection process undertaken by the interview panel here.
It is hard for this Board to understand how this could occur, in view of the repeated direction
this Board has given on the need to consult personnel files and candidates= supervisors.
Particularly when one of the candidates is known to the interviewers...see for example
MacLellan and DeGrandis, 506/81, 690/81 and 691/81, wherein the jurisprudence is
summarized at page 25 and 26:
Consistent with the Board=s jurisprudence, the job competition in the instant case must be evaluated
against those general principles.
The first question raised by the Union was the need for any competition considering the fact that all of the
candidates had been performing the actual duties of the job for a significant period of time and that they had
all passed the initial screening regarding satisfactory performance appraisals and discipline. In the past the
LCBO had promoted on the basis of seniority alone and the Union contended there was no need to change
that practice.
46
After considering the evidence of the LCBO, I am satisfied that it was not unreasonable for them to
reconsider their process after the inclusion of the Permanent Vacancy Review in the collective agreement.
It became apparent very soon thereafter that it would be faced with numerous new positions that would
require multiple job competition proceedings. The various regions had set up their own methods for dealing
with vacancies in the past that resulted in the inconsistent application of the collective agreement
requirements. It was not unreasonable in the circumstances for the LCBO to re-evaluate its policies and
attempt to devise a process that could be applied in all regions to all future vacancies with consistent results.
There can be no question about an employer=s right to determine the methods it will use to evaluate the
competence and ability of its employees. More will be said about the process adopted in the instant case.
The second issue raised by the Union concerns an apprehension of bias in the selection process. Based
on the evidence before me I am unable to conclude that actual bias or the apprehension of bias has been
established. In the first instance, the Union raised a question concerning the waiver of discipline on one of
the applicant=s records during the initial screening. In my view, the LCBO acted reasonably in not applying
a hard and fast rule about past discipline and deciding instead to consider each case on its own merits. The
LCBO considered the reason for the discipline, the time that had elapsed since the discipline and the
applicant=s response to the discipline and came to the conclusion that he should be granted an interview.
The LCBO followed the job posting by making a determination as to whether or not the applicant=s
disciplinary record was satisfactory. It decided it was. To do otherwise would have left the LCBO open
to complaints from the Union on other grounds.
47
The Union has also suggested that the selection of the interview panel and the actions of some of the panel
members raised an apprehension of bias. Again, the evidence does not bear that out. While it is true two
of the selection panel were or had been managers of some of the applicants, that does not, in and of itself,
prove they were biased for or against any of them. Indeed, given that the subjective comments in the
performance appraisals were purposely excluded from the interview panel=s considerations, there is no
evidence that the marking of the applicant=s answers was affected in any way by a panel member=s personal
knowledge of the applicant. The answers were marked against preset responses and there is no evidence
that credit given for any addition answers was unwarranted or unreasonable. The conversion of the
performance appraisals was not done by the those panel members and cannot be attacked on those
grounds.
Finally, the Union submitted that, because some of the applicants asked the panel members for assistance
in the interview process, they had an advantage over others. The evidence from the panel members
involved was that, when asked, they directed the applicants to the various manuals in the store. They also
gave general instructions about answering the questions completely. There is no evidence that those
directions were improper in the circumstances. The fact that some people had the foresight to ask for
assistance in advance of the interview should not be held against them. For their initiative, they were directed
to the various sources of information that were available to all applicants. The assistance they got was
general in nature and did not, in my view, give them such an advantage over the others that it gave rise to
48
an apprehension of bias. Further, the evidence established that assistance would have been provided to
any applicant who asked.
I reject the Union=s submissions that the questions chosen for the interview were not relevant to the positions
at issue. They all related to the actual job duties or to store initiatives or programs that are well known
amongst LCBO employees. None of the questions were a surprise to the applicants and all were able to
answer the questions to a greater or lesser degree.
Having determined that the LCBO did not act unreasonably by requiring a job competition for these CSR
vacancies, serious concerns arise however about the actual process used. The applicants had been
performing much, if not all, of the work of a CSR and yet failed to score a passing mark on the interview
and/or performance appraisal conversion, or both. That gives rise to some misgivings about both aspects
of the process used to rate these applicants. Those misgivings were expressed by members of the interview
panel themselves.
Similar sentiments, albeit in the context of tests, were voiced by the Board in the Hall/Powers case
(supra), at page 18 and 19:
There may be misgivings about tests based on their usually having been prepared by persons
who have not had them properly validated. That is, they are usually tests prepared by amateurs,
albeit usually amateurs with knowledge of the qualifications and abilities required to perform the
duties associated with the job. However, if those who prepare and administer the test meet
certain criteria, tests have been given considerable weight in assessing qualifications and ability.
See Brown and Beatty, Canadian Labour Arbitration (Third Edition), at para 6:3340. Panels of
the Board have not inisited that the creation, administration and evaluation of a test be an exercise
49
in perfection. At the same time, in looking for objective evidence which would assist a panel
to evaluate the candidates= qualifications and ability, where the job posted is one where the
candidates have had substantial ongoing experience and where their performance of the job has
been observed and reviewed by representatives of the Employer, the evaluation of the candidates=
actual performance on the job must be preferred to a test, especially where the test of actual
experience on the job conflicts with the more theoretical test.
Unfortunately, the Employer, in carrying out its responsibilities, although its representatives acted
in good faith throughout, overlooked significant objective evidence concerning the qualifications
and ability of the applicants. There was available to the Employer objective evaluations made
by supervisors over a considerable period of time, of the functioning of the applicants in the very
position that was the subject of the posting. They also had the means of obtaining oral
assessments from supervisors. Only ten out of one hundred and fifteen marks were given to
an applicant who had obtained the status of Correctional Officer 2. As far as can be determined,
no attempt was made to evaluate the qualifications and ability of the applicants to perform the
required duties and responsibilities of the position based on their actual performance of the
Annex Correctional Officer job.
On the evidence we must find that Mr. Hall not only performed the work of an Annex
Correctional Officer extremely well when he was required to perform that job, but that he was
seen to do so by his supervisors. There was no suggestion that either of the other two
applicants were evaluated on the basis of their on-the-job performance as being any better than
Mr. Hall in terms of their qualification and ability to perform the duties of the job.
Nevertheless, we are asked to virtually ignore the reality of actual on-the-job performance in
favour of an evaluation which awarded 87 per cent of the marks to the written and oral tests.
The tests may indeed contain questions and requirements which are job related. However,
unlike an evaluation of actual job performance, they are mainly a test of potential.
...
In the circumstances of this case, the test score of Mr. Hall appears to fly in the face of his
objective record of job performance, which is relevant to the question of his relative
qualifications and ability to perform the duties of the posted position. Based on his performance
on the test (the answers to the oral questions on the interview and his written essay) Mr. Hall=s
qualifications and ability to perform the job would appear to be extremely limited. His
uncontradicted evidence concerning his experience and the objective evaluations received by him
while actually performing the job ought to have indicated that the test had not done an adequate
job, in his case, of assessing his qualifications and ability to perform the job relative to the other
candidates.
There is frequently an appearance of fairness and objectivity in a test intended to assess the
relative qualifications and ability of candidates to perform the duties of a job. This, no doubt,
contributes to the frequency of use of tests. It avoids many challenges based on alleged
subjectivity in the evaluation process. But tests which, at best, assess the potential of candidates
must be used with care. This is especially so when, as in this case before us, there is evidence
of evaluation of actual job performance performed by representatives of the employer which
50
evidence was not seriously challenged....
We do not expect the Employer to carry out its responsibilities according to some paradigm of
perfection. Although it acted in good faith, by virtually ignoring the evidence of actual job
performance, it neglected to consider significant cogent evidence necessary to properly carry
out its responsibilities under article 4.03.
Those concerns arise in the instant case. There are five grievors before me who have performed the job
of a CSR on a part-time basis for a significant number of years. They have all received satisfactory or
better performance appraisals over the years and yet, in some instances did not achieve a passing mark on
the interview portion of the competition. That should have raised some doubt in the LCBO=s mind about
the validity of those results. Mr. Netta, who has been a part-time CSR since before 1990 was only given
24.2 marks for his interview out of a possible 60. Mr. Marozsan, with a seniority date of 1991 only rated
25 points, less than a passing mark. Even though these marks raised some question in some of the panel
members= minds about the poor showing of the applicants, no attempt was made to reconcile those results
with the evaluation of the applicants on the job.
Even more disturbing is the fact that the information was readily available. While I appreciate that there
were a number of applicants to review, the importance to these long-service part-time employees of
obtaining a permanent full-time position warranted a thorough consideration of all relevant factors and, in
particular, an investigation when the results proved to be so unexpected. As set out above, it was open to
the LCBO to engage in a more rigorous process than simply taking all of the candidates as relatively equal
and awarding the jobs in order of seniority. However, once it did so it was required to thoroughly assess
them using the information easily available to it.
51
The conversion of the performance appraisals raises the same and additional concerns. In the first instance,
the results again were not consistent with the actual assessments of the applicant=s job performance. The
performance appraisals were meant to be an evaluation of an employee=s ability to perform the duties of
the position. They are completed by supervisors who have seen the employees at work and who are in the
best position to evaluate their ability. All of the grievors received satisfactory PA=s during their part-time
service and yet received very low marks in the conversion. Mr. Netta did not even get a passing grade,
notwithstanding the fact that his PA=s contain favourable comments about him and his work habits. No one
thought to question that disparity, which is surprising in the circumstances. In Ms. Norris= case, she
received 27 marks on the PA conversion and only 16.2 on the interview. Again, one wonders why no
questions were asked about that discrepancy.
One of the reasons, in my view, for the poor showing of some of the grievors in the PA conversion is the
fact that not all managers rate their employees by the same scale. Some are generous and more
complimentary about their employee=s abilities. Some, on the other hand, are less flattering and tend to give
lower marks. Others take the safe route and mark in the middle range and make up for the average mark
by adding favourable comments. A straight mathematical conversion cannot take into account those purely
subjective elements for the very reason that they were never intended to be applied in such a manner. They
were designed to provide a method of assessing an employee=s ability to perform the duties of the position
in a qualitative, not quantitative manner. Even though each style used has a numbered scale for evaluation,
52
the description of the range for each value is broad enough to invite additional comments. Indeed,
comments are expected. And yet, no consideration was given to those comments in the conversion.
Equally disturbing is the fact that the grievors were never advised that their PA=s would be used in such a
manner. Indeed, some of them were told quite the opposite. The general view was that PA=s were not very
important and that, at least in the grievors= cases, there was no need to note an objection to them unless they
were clearly unacceptable. To suddenly attribute values to the marks on the PA=s without advising the
employees at the time of their importance is unfair. In addition, given the LCBO=s approach in this matter
to ignore written comments, it is open to question whether those objections would have received any
consideration.
The obvious problem with the conversion is that none of the favourable comments in the PA=s were taken
into account during the process. Even when the scoring at the interviews raised questions about the results,
no consideration was given to factoring in the positive comments on the PA=s concerning the grievors= actual
performance on the job. Even when one grievor failed to achieve a passing mark on the conversion, no one
thought to check with his store manager to find out why he did so poorly on the conversion and the
interview in the face of favourable PA=s in the past. This information was available at the time and could
have made a difference in the result if it had been considered. The fact that it was not puts the entire
process in question.
53
The Union also objected to the fact that Mr. Scott Grech, who received 73% on the tests was held up as
a Aghost@ candidate for all sixteen positions, even though he never actually received a job offer. He scored
the highest combined score but did not have enough seniority to warrant a job offer. The fact is, Mr. Grech
was 26th on the seniority list and would have been the next one to be offered a job if one had existed. The
next highest mark was 71% by an applicant who was offered a job. Even if they had eliminated Mr.
Grech=s score from the competition, relative equality would have been in the range of 71% to 51& and the
position of the grievors would not have changed because none of them scored more than 51% in total. All
of the other successful applicants received scores ranging from 53% to 64%. The Union did not take issue
with the 20% range and setting the 20% on the basis of the highest score was not unreasonable.
The final problem in the LCBO=s process is the weight given to the interview and the past PA=s. It
determined that 40% would be allotted to the past PA=s and 60% for the interviews. No rationale was
given for that weighting by the LCBO and, in my view, it does not seem reasonable in these circumstances.
Interviews can be a useful tool in determining whether to make a job offer to an applicant. That is
especially true in the case of applicants new to the employer. However, in the instant case, the LCBO had
a list of employees who were known to at least some store managers and who had been appraised by those
store managers on at least two occasions in the past. It would have been easy for the LBCO to ask these
store managers about these employees. To place more weight on the interviews than actual performance
appraisals in these circumstances, in the absence of an explanation, seems arbitrary and unreasonable. The
results of the interviews has proven that to be the case. Long service employees who have been performing
54
the essential duties of a CSR for years failed to achieve a passing mark on their interview. Of the sixteen
who were offered positions, only three scored more than 50% on the interview. Of the forty who passed
the initial screening, only six were rated above 50%. It is hard to image how 40 employees who had been
the performing the essential duties of a CSR for a number of years could have failed an interview for that
very job. It suggests that the applicants were scored on their ability to pass an interview, not on their ability
to perform the functions of a CSR. That ought to have been a signal to the LCBO that their process was
flawed. It should have at least raised some question about the weight it should ascribe to the interview.
For the reasons set out above, the selection process for these CSR vacancies cannot stand. The LCBO
did not consider all of the relevant factors in determining who should be offered a permanent position. It
had the information but chose to ignore it. It did not consider relevant comments on the applicants=
performance appraisals and, to the extent it reduced those performance appraisals to a numerical figure,
purposefully ignored information favourable to the grievors. It relied too heavily on the interview, to the
candidates= detriment. It gave to much weight to the interview when it had more complete and better
sources of information available to it. When the applicants as a group scored so poorly on the interviews,
the LCBO ought to have realized how inaccurate the results were, given the work history of the group.
In the Bechard case (supra) the grievor had applied for the position of "C" store manager which was
ultimately awarded to another applicant with significantly less seniority. The Board noted on page 34 the
following:
55
As stated earlier, Article 21.5(a) is a sufficient ability clause pursuant to which a promotion must
be awarded to the senior qualified candidate. This type of provision, in my judgment, places
certain obligations on the Employer in terms of the nature of the process it uses to fill job
postings. Clearly, the process should be designed to focus on the qualifications of the senior
person in respect of his/her ability to perform the duties and responsibilities of the posted
position. I am satisfied that the process should, normally, include an assessment by the selection
panel of the senior applicant's work history and experience including a review of relevant
performance appraisals, supervisory comments and disciplinary and attendance records. These
sources of information are important because they will likely provide the panel with some insight
as to how the applicant might perform if placed in the job. More specifically, it allows them to
match the employee against the actual job duties and thereby reach an informed assessment as
to whether the person has the needed skill, ability and experience. Put a slightly different way,
I think that the panel places a selection in real jeopardy when it disregards information relevant
to the threshold question with which it is seized. I have no doubt that the process may include
an interview or test of the type used here, subject to the caveat that there is a substantial risk
such an interview, without more, maybe viewed as insufficient in terms of its ability to yield an
accurate assessment of the candidate's overall qualifications. Generally, the interview should
form part of the exercise rather than being the entire process. In other words, it should not
serve as the sole or exclusive measure of an employee's qualifications, especially in situations
where other relevant data is readily available. In summary, I conclude that the process should
be sufficiently comprehensive so as to permit the employer to make a fair, reasonable and
informed decision as to whether the senior candidate is qualified to perform the work.
Although the Board in that case was considering a threshold question of ability to do the work, the
comments are applicable to a case of relative equality as in the instant case. A review of the performance
appraisals, supervisory comments, disciplinary and attendance records would give the panel some insight
into how the candidate might perform in the job. That is even more significant when one considers that the
LCBO had access to direct observations about these applicants= ability to perform the work. The process
used in this case was not Asufficiently comprehensive so as to permit the employer to make a fair,
reasonable and informed decision@ about who should be awarded a full time position.
REMEDY
In reviewing a job competition, a Board of Arbitration can, and indeed is required to award the job to a
56
grievor if it is satisfied on the evidence before it that the grievor would have been successful in his/her
application but for the breach of the collective agreement. In this case there are forty applicants for sixteen
positions. After adding the scores achieved on the interview and PA=s the LCBO offered jobs to sixteen
applicants, the last being the 25th on the seniority list. It is impossible in these circumstances to say with
certainty that these grievors would have been successful if the LBCO had conducted the interviews
differently. The appropriate remedy in the circumstances is to require the LCBO to rerun the competition.
The jurisprudence is clear. The candidates must be evaluated by reference to all of the information
available regarding their ability to perform the jobs at issue. That includes, at the minimum, a review of their
complete performance appraisals, their supervisors comments, their personnel files and any other
information that would assist the LCBO in making an informed decision about an employee=s ability to
perform a job.
Dated at Toronto, Ontario his 20th day of December, 1999.
Loretta Mikus, Vice-Chair