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HomeMy WebLinkAboutUnion 89-10-12 Seneca College (Hereinafter referred to aa "the employer") - and - Ontario Public Service Employee~' Union (Hereinafter referred to as "the trade .~union ) And In the Matter of a Group Grievance Pertaining to Article 17.1.1 of the Collective Agreement (File No. 87E60) Before: D.H. Ka%es, Chairman Ron Hubert, Employer Nominee John McManus, Trade Union Nominee Appearing for the Employer: Robert W. Little, Counsel Appearing £or the Trade Union: Chris G. Paliare, Counsel Heard at Toronto, Ontario, on December 18, 1987, September 14, October 12, December 8, 1988, June 13, 22, 23, 28, 1989. -- 1 -- Decision A group grievance was referred to arbitration challenging the propriety and validity o£ the employer's selection process denying three bargaining unit employees the position o£ Consultant, Ontario Skills Development O{£ice, Du£{erin Campus. The three internal candidates denied the position are employed as Programme Co-ordinators in the College's Continuing Education Department. They are Irma Melville, Shells Hirsch and Tony Flynn. The position hsd it been awarded them would have represented for the grievora a lateral tra~]s£er. Accordingly, as no change in compensation would have resulted the grievors have viewed the employer's re3ection o£ their applications as an impediment to their career development with the College and £ailed opportunity £or long term advancement. On agreement of the parties Ms. Melville's grievance was to be treated as representative o£ the two other grievances. The partie~ indicated that we would be advised o£ how we ought to deal with the remaining grievances upon learning o£ the outcome of Ms. Melville's case. There were £ive vacancies £or the Training Consultant's position. O£ the seven internal candidates who had applied for the position only one, Ms. P. Mortimer was selected. Mr. Lachapelle was also a successful candidate. The College later discovered that Mr. Lachapelle, although an employee o£ the College, was not a member o£ the support staff bargaining unit. It was there£ore conceded that his selection, indeed consideration £or the position, ought not to have occurred until a£ter the internal competition had been completed. The employer, however, was to argue that although the mistake constituted e technical violation o£ the collective agreement, the oversight had no meaningSul impact on the grievora' candidacies, accordingly, it was submitted that the Board ought to restrict the remedial relies that should be granted to a declaration. The trade union indicated that the selection procedures adopted by the employer constituted a £1agrant violation o£ Article 17.1.1 oS the collective agreement and, more significantly, because those procedures were carried out in bad £aith the Training Consultant positions should be awarded to the grievors. And, only i£, the Board were not persuaded to award the positions to the grievors, £or whatever the reason, a reposting o£ the competition ought at least to arise out o£ the employer's admitted in£raction in its dealing with Mr. Lechepelle'$ application. The remaining vacancies were allocated %o external candidates whose applications were considered after the completion o{ the internal competition. The record should note that each o£ the incumbents were advised oS these proceedings and elected not to £ile an appearance. It ia common ground %hat the Ontsr. io Skills Development O££1ce (OSDO) programme represents an e£Sort by the Provincial Government to encourage business and industry to develop a consciousness about upgrading the skills and qualiSicationa o£ their employees to meet their £uture needs. In the context o£ changing technology that may a£fect their business operations public policy considerations dictate that employers develop "a training culture" so that their work £orce is easily adaptible to these changes. And, apart from the business advantage o£ cultivating a skilled work force, employees will also pro£it by exhibiting greater mobility in the event a change of sobs becomes necessary. The vehicle by which the obsectives of the OSDO programme is intended to be achieved is through the efforts of the Training Consultant. We were advised that the~e are three features of the T~aining Consultants £unctions that are essential to the achievement of the prog~amme's ob3ectives. In the first instance the Training Consultant had to market the prosect through sheer force o£ persuasion and salesmanship. And while marketing the programme the training consultant must instill in the business entrepreneur an awareness o£ his long temm needs £rom a manpower perspective. Accordingly, the training consultant must assist the entrepreneur in the preparation of a "needs analysis" o£ those requirements. Once the needs analysis identifies current and future requirements then the training consultants assist in the preparation of a training programme and advise of the resources that are available where that programme may be carried out. The delivery o£ courses that might encompass the programme, whether through Seneca College or some other institution, is not part of the Training Consultant's £unctions. Finally, the Training Consultant must conduct various follow up consultations with the entrepreneur to ensure that the training programme, once implemented, is meeting the ob3ectives that have been established in the "needs analysis". The Training Consultants operated out o£ the Business end Industrial Training Division of Seneca College. Dr. John Hazelwood is Chairman o£ that Division and is generally responsible {or overseeing the OSDO programme end the appointment o£ the £ive Training Consultants required to £u1£ill the needs of the programme. These vacancies constituted bargaining unit positions unde~ the support sta~ collective agreement and thereby had to be filled in accordance with Article 17.1.1 of the collective agreement which reads as follows: 17.1.1 Consideration - Bargaining Unit Employees When a vacancy in the bargaining unit occurs and employees within the bargaining unit make application for such vacant position, the Colleqe will qive D~oper con~ideration to the qualifications, exDerience, and seniority o~ ell aDDlicents in relation to the requirements of the vacant Dosition. Notwithstanding the £oregoing, where there is no increase in the complement of bargaining unit employees in the Department within which the vacancy arose, the College may £orego posting and fill such vacancy by appointing a qualified bargaining unit applicant from the Department. 17.1.1.1 Notification Ail applications will be acknowledged and applicants who are interviewed will be notified of the outcome of their application. The College will not interview aDDlicants from outside the barqaininq unit until it has comDlied with Articles 17.1 end 17.1.1 above. The College will not conmider applicants from outside this bargaining unit until it has assessed internal e_]DDlicants and noti£1ed them o£ the results. emDhasis added Apart from the admitted violation o£ Article 17.1.1.1 of the - 5 - collective agreeent with respect to Mr. Lachapelle's appointment while the internal competition was being conducted, the trade union insisted that the grievors, Ms. Melville particularly, were not extended "proper consideration" with respect to their quali£ications, experience and seniority £or the Training Consultant's position. The notion o{ what constitutes "proper consideration" with respect to the three dispositive factors contained in Article 17.1.1 are discussed in several arbitral decisions. It will su££ice to quote £rom Re Durham College and Ontario Public Service Employeem Union (V. Smith grievance), decision dated March 28, 1986 (Samuels) for a statement of the law (at pp. 1-2): Article 17.1.1 o£ the collective agreement provides that, when employees in the bargaining unit make application for a posted position, "the College will give proper consideration to the quali£1cations, experience, and seniority of all applicants in relation to the requirements of the vacant position". This type o£ provision is known as a "hybrid clause". It does not say that the senior employee will get the position if the employee can do the 3ob. It does not say that seniority will govern i£ quali£ications and experience are relatively equal. It says simply that "proper consideration" must be given to three factors--- quali~ications, experience, and seniority---in relation to the requirements of the vacant position. Thus there is a great deal o~ £1exibility permitted in the decision-making process. However, ~eniorit¥ must be considered (see, for example, Cambrian Colleqe and Ontario Public Service ~mpl__ovees Union (grievance o£ M. Ransom, unreported decision o£ Swan, dated January 29, 1987), at pages 5-6). And "proper conmiderstion" involves two elements---firstlF, the employer must qather su££icient in£ormation on which to make a valid ]udqment of the merits of the candidates; and secondly, the emplover must qive appropriate weiqht to the various factors in liqht of the requirements o£ the Do.ted 3ob. ~mphasis added - 6 - The quali£ications for the Training Consultant's position are described in the 3ob posting as Quali£icationa- A post-seconderv degree or diploma, and £ive Fears' related ~inesm/induatrlal experience are required. As well, current experience in the training and development £ield is required. E__xcellent interpersonal, orqanization, communication and neGottattnq skills are essential. Teaching experience would be an asset in the undertaking o£ the training function. Incumbents must have access to an automobile. emphasis added Ms. Melville has been employed in various capacities by the College for approximately twelve years prior to the 3ob posting. She ia currently employed aa a Programme Co-ordinator, CED and while in that position abe has been assessed ma "~xcellent" (EEE) in carrying out her ]ob responsibilities. She has encountered employers in small business and industry through her e££orts to consult with them on advisory Committees where recommendations for alterations and upgrading of course curricula are made. She is involved with business people on regular basis in her effort to encourage the improvement of the skills and education o~ their work £orce through enrollment in Seneca's programmes. Her attachment to the Continuing Education Division is most relevant in this regard with respect to her contact with part time students who most often are employees seeking to upgrade their qualifications during their o~ duty' hours. While at Seneca Ms. Melville has been assigned several special pro3ecta which she has carried out with distinction. She was an active participant in a College Committee appointed by the President charged with the responsibility o~ designing e relevant af£irmative action programme; she was involved in a pro3ect £or creating "the entire part time studies calendar" and other related programmes for which she received an Award of Excellence. It is not disputed by the employer that Ma. Melville's career with the College has been exemplary. The College attempted to suggest that her being denied the Training Consultant's position was not intended to detract from her very impre~iv~ a~hievementa. Nonethelema, the Selection Board was compelled given the very exacting requirements for occupying the Training Consultant's position, to hold that aha was not qualified. Generally, the principal concern voiced by the {our members o£ the Selection Committee pertained to Ms. Melville's "credibility" in dealing with the business community to whom she would be marketing the OSDO programme. That concern was a conclusion that arose out o~ three shortcomings in her quall£1cetions as required by the 3ob posting for appointment to the Training Consultant's position. The £irst pertained to her failure to attain a post secondary degree or diploma and/or her ~ailure to engage in meaningful, pro£essional development towards that ob3ective during her career at Seneca. The second pertained to he~ lack o£ any current business experience (at least five years from the date of the posting) in a function that would enable her to relate ("empathise") with the needs of the small business employer, and, finally, and most seriously, she was assessed by the selection committee during the course o£ her interview (of approximately one hour's duration) of being an "aggressive, abrasive and combative individual". This impression, if it were accurate, would clearly in the Selection Board's opinion alienate the business entrepreneur during the course of any effort on the grievor'a pert to secure an employer's commitment to the OSDO programme. Aa a result, when each of these shortcomings were considered in relation one to the other the Selection Committee concluded that the grievor was not qualified, on account of a want of credibility, in achieving the ob]actives of marketing the programme to a likely entrepreneur. The grievor'a general response to the Selection Committee's assessment of her qualifications was that a severe injustice, particularly in light of her peat contributions to the College, had been committed against her. Her disappointment focussed primarily on the very harsh 3udgment that was made with respect to her interpersonal ~elationahipa end her perceived inabil~ty to engage in the necessary negotiations for marketing the OSDO programme. Moreover, she complained that the Committee simply misunderstood or misappreciated the tasks she had performed while a Programme Co-ordinator CED in dealing with the business community and other relevant persona (ie., students, teachers, administrators). Ultimately, the grievor appeemed mo embittered by the assessment of her worth that the allegation was mede that alterations to both her and other candidates' acomeaheets used by the Selection Committee to mark an applicant's performance during the interview were colluaively made with a view to disquali£ying her from the position. The Selection Board's adverse opinion o£ her interpersonal skills were, in Melville's opinion, baaed on groundless events that had occurred during the course of the interview. In other words, the employer's £indinga with respect to her quali£ications could only be purged by direction of this Board awarding her the Training Consultant's position. And it is for that reason the trade union charged that the entire competition, inclusive of Mr. kachapelle'a appointment, were part o£ a collusive e££ort to deprive Ms. Melville (and perhaps Ms. Hirsch and Mr. Flynn) the appointment. Indeed, should these allegations be established, it would explain or indeed 3ustify the trade union's perception that the internal candidates' seniority while in the employe of Seneca were never "properly considered" factor that could be invoked to £svour the grievors with the appointment. In order to place in perspective the issues raised with respect to the propriety of the Selection Committee's treatment of the internal applications £or the vacant positions, it is necessary to explain why the qualifications inserted in the 3ob posting were considered by the College to be o£ such critical importance. Once a discussion of these qualifications is completed an attempt will then be made to indicate why the Selection Committee may have deviated from the requirements of the collective agreement in its consideration of the application. And, if these alleged aberrations from the collective agreement are at all warranted then Ms. Melville's perception, irrespective o£ her allegations o£ collusion, o£ the harshness o~ the Selection Committee's 3udgment against her wall be better appreciated. At the outset we wish to make it per£ectiy clear that the innuendo o£ connivance, skulduggery and sheer dishonesty mede against the Selection Committee members are without ~sctual £oundetion. We wish the record to show that the charges mede against the Committee were speculative in nature and were never established by "clear and convincing proof" in accordance with arbitral standards necessary to demonstrate sn absence o£ bona £ides during the conduct o£ the competition. We do not say, however, that the grievor had no reason to be critical o~ the Selection Committee's treatment o£ their applications. And it is perhaps the validity o£ some o{ these criticisms that has triggered their more intemperate charges. The 3ob posting requires that s candidate possess s post secondary degree or diploma in order to quali£¥. It is noted that "like or equivalent experience or training" would not have su££iced so that a candidate who was otherwise queli£ied but who lacked a post secondary degree or diploma would still have been deprived o£ the opportunity to establish his or her worth. The reasons the Selection Committee placed such importance on post secondary academic certi£icetion was related to the perceived credibility o~ the Training Consultant who, as representative o£ a learning institution, should at least be in a position to establish his or her credentials to market the OSDO programme. ll - In e practical sense the College cannot be criticized for requiring the post secondary quali£ication es an emmet for achieving the position. Where the College should be criticized however im in its lack o~ flexibility, es expressed in the 3ob posting, for not providing for the contingency that a candidate may have equivalent training or experience. It is our view that the rigid standard for the formal qualification of a .post secondary degree or diploma is not even e standard required of the Minimtry guidelines that were established under the OSDO programme for the Training Consultant. That document providem as follow~: Consultants typically will have completed a post-secondary education community degree or college diploma or have e~uivalent eRperience, with mpecislimed skills in business, social science, adult education, mathemeticm or computer science. Professional development courses will be provided by the Ministry of Skills and Development. emphasis added The evidence established that with respect to the applications of both Ms. Mortimer end Mr. Lechepelle the Selection Committee was compelled, presumably by sheer £orce of their quali£icetions, to £orego the requirement for a post secondary degree or diploma. To be fair, it wes pointed out that through their efforts in taking courses in pro~essional development they may in due course achieve post secondary accreditation. But the probability for achieving that goal in the future merely demonstrated the imprudence of making the post secondary requirement an absolute necessity (et least insofar em the job posting wes concerned) for being awarded the position. The Selection Committee was "ell over. the map" with respect - 12 - to it grading the post secondary requirement. Mr. R. Neale indicated that the requirement was not an absolute ao long aa the candidate was enrolled in a programme leading to post secondary accreditation. Ms. Masters indicated that because she did not hold a post secondary degree or diploma she did not give much emphasis to it. Indeed, she gave Ms. Melville e passing mark under that £actor. Dr. Hezelwood held that the academic requirement was obligatory (and gave her no credit). And, Mr. Ed Chop, because he was impressed with Ms. Melville's work experience (la., the written work on the calendars that earned the grievor the Trillium Award) also gave her a passing grade. Ms. Melville, o£ course, must simply accept her academic shortcomings in achieving career advancement as a practical reality. She was warned in her 1985 annual evaluation by hem supervisor, Mr. Humber, that her £ailure to pursue professional development courses towards enhancing her academic qualifications would represent such an impediment, and, to the extent that the grievor did not follow that advice, she must accept some responsibility for her difficulties. It appears to me that the omission in the 3ob posting to provide for equivalent experience or training as an alternative to the post secondary requirement was not only a serious shortcoming but the failure of the Selection Committee to consider a candidate's relevant experience in order to determine whether an equivalent level of acceptability had been achieved £or its credibility concerns constituted an "improper consideration" £or purposes o£ Article 17.1.1 of the collective - 13 - agreement. And, from that perspective, the approach mandated by the Ministry, I em satis£ied, would have complied with the "proper consideration" requirements o£ the collective agreement with respect to a candidate's £ormal academic qualifications. The Selection Committee also gave serious consideration to a candidate's related business/industrial experience. Similar credibility concerns were voiced if a candidate had not had actual work experience in an environment where dealing with the daily pressures o~ operating a small business were encountered. The touchstone o£ the Selection Committee's concern was that the training consultant should be able to "emphathize" with the entrepreneur and thereby understand and appreciate their practical concerns (and therefore address them) when trying to market the OSDO programme. The Board does not disagree with the notion that practical business experience would enhance that understanding and thereby contribute to the abilities and credibility of the Training Consultant's success in convincing the entrepreneur to support the OSDO programe. However, we very much question the logic that only persons who have encountered actual business experience in a work environment (who £or example have spent their entire careers in an academic environment) would not be able to achieve a like "empathy" with the trials end tribulations o£ operating a business. Moreover, not only did the Selection Committee consider that the absence of such business experience represented a negative factor but if the experience was not current (ie., at least £ive years as o£ - 14 - %he date o£ the 3ob posting) the business experience would not be considered "related" as it was not current. As a result, a candidate who may have had actual business experience in a desirable work environment were nonetheless "penalized" if that work experience did not comply with the five year requirement ~or "currency" . Mr. Neale was asked in cross-examination as to how the ~ive year current work experience requirement was arrived at. He stated it was simply an "arbitrary" benchmark that the Committee had concluded as appropriate. Dr. Hazelwood was asked during his cross-examination whether the Selection Committee considered an amendment of the text o£ the 3ob posting as the requirement that was advertised only referred to "five years" related experience. He responded by stating that the "remoteness" of the business experience was a r~levant notion in giving credit under that factor. Accordingly, Ms. Melville who accumulated years of experience while connected to Seneca's Continuing Education Department is treated less £avourably than Ms. Mortimer end Mr. Lachapelle whose "current" business experience was related to the airline and hotel-restaurant industries respectively. We do not hold that the employer properly considered either Ms. Melville's seniority or her related experience as contemplated by the collective agreement. The serious shortcoming that is evident in the Selection Committee's interpretation o~ related business experience (even i£ we accept the notion that "empathy" can only be established - 15 - in an actual work environment) is that the more remote the candidate's business experience is the less likely "meniority" will be considered as a positive factor. Let us explain. If Mr. Ed. Chop, whose business career in a sophisticated business and corporate environment was exemplary, accumulated more than five years seniority in Senate's academic work environment, that previous business experience would begin to erode (should he have been an applicant)' after the first five years of employment as it would cease to be "current". He might very well have discharged his work duties es Chairman of the Business Industrial Training Division of Seneca over the years in an exemplary manner. Moreover to the extent his years o£ seniority with the College increased beyond the five year "erb£trary" benchmark, his business credentials prior to assuming employment with the College would deteriorate commensurately. Ultimately, i£ the Selection Committee's logic were to be applied both the seniority factor and the work experience factor referred to in Article 17.1.1 o£ the collective agmeement would represent ~or the otherwise quali£ied candidate wasting assets. Related work experience would no longer be current in that it exceeded the "arbitrary" five year time frame and cumulative seniority as expressed in year~ of service in Senate's academic environment would become remote or irrelevant for the purposes of establishing "empathy" with the mmall business entrepmeneur. Because of the obvious pre]udice that would be caused candidates with longstanding seniority with Seneca College (particularly Ms. Melville) as a result of the Selection Committee's interpretation o£ the related business experience - 16 - requirement contained in the ]ob posting we are compelled to conclude that an improper and un£air consideration was given to those factors. Another area where the Selection Committee must be held accountable for its errors relates to the limited scope of their inquiry into a candidate's credentials. As Re Durham ColleGe (supra) indicated, the College in order to comply with Article 17.1.1 was "obliged to gather sufficient information on which to make a valid ]udgment of the merits of the candidates". It is common ground that what was be£ore the Selection Committee during the course o£ a candidate's interview was the application £orm and the supporting documentation which included a resume and available evaluation reports. The personal file was not be{ore the Committee. And, indeed, there was no suggestion that the Selection Committee might not have access to the personal files should a dif£iculty arise that required clarification. Moreover, there was indication that a candidate's superiors could have been made available fox questioning if their assistance was requested. Aa has already been indicated a candidate's qualifications for the Training Consultant's 3ob was fundamentally baaed on the sub3ective interpretations of the Selection Committee. And many of the factors that the Committee weighed were implicitly subjective in the sense that impmesaiona weme o~ prime and immediate importance. Assessments about a candidate's strengths as they related to "presentability", "sense of humour", "communicability", "flexibility to change" were essentially ]udgments that had to be reached instinctively within the one - 17 - hour time frame allotted for a candidate's interview. Several terms were used by the Selection Committee to describe how they arrived at their conclusions. They reflected the di~icultiem in decision making that were encountered in the effort to quanti£y ob3ectively impressions that were basically the product of individual perception. And so terms such es "gut reaction", "making good eyeball contact", "having nice vibes" and "feeling good" about s candidate were used by the four Selection Committee members continuously throughout the hearing to convey how a consensus was reached. We have interpreted these terms to mean that the Selection Committee in coming to its consensus opinion about a candidate simply because of the time constraint o£ s one hour interview were impelled by their instincts. And, certainly, the Selection Committee cannot be criticized £or relying on their instincts, based presumably on their collective years of professional experience, in reaching its conclusions in the circumstances that have been described. Nonetheless, when dealing with the career development o{ Seneca College's employees the collective agreement dictates that the "proper consideration" be given to each ~actor contained in Article 17.1.1 o£ the collective agreement, and, in order to satia£y that requirement (which we hold not to be an unduly onerous task) the Selection Committee was duty bound to confirm or corroborate its sub3ective conclusions by re~erence to an employee's past record of College experience. Judgments based on instinct end perception are often misleading. I~ there exists a means whereby initial impressions of a candidate can be - 18 - verified by a candidate's previous work habits then the Selection Committee is duty bound to have access to his or her personal record, evaluation reports and supervisory personnel who can lend invaluable assistance. Nowhere in the arbitral 3urisprudence can the notion advanced by the College be supported that "you live or die" as a result of the candidate's performance during the Selection Committee's interview. We do not question that a candidate's positive performance during the interview is significant. But when issues arose as in Ms. Melville's case that ought to impel the Selection Committee to inquire further about a candidate, whether it be a positive or negative matter, then prudence dictates that that extra effort should be taken. In support of that notion we would rely to the decision in Re Sim Sandford F~leming College and Ontario Public Service Employees Union (Scanlon grievance), decision dated Noveber 3, 1988 (Brown) where the arbitrator writes at p. 26: In our opinion an applicant's current experience would be mn important and relevant factor in weighing the present ability of the applicant with regard to the requi~ements of the posted position. Unless the inte~viewing committee had the background of the applicants gob expe~ience in the College, which can involve personal evaluations and facts w_hich maw be relevant to that consideration, it can be concluded that the interview committee did not have su££icien_t information before it to make the 3udgement required of it. The grievor did attend the interview and was given an opportunity to respond to questions of the committee members. emphasis added The Selection Committee came to the unanimous conclusion that Ms. Melville lacked the interpersonal skills to carry out the Training Consultant's duties. She was described du~ing the - 19 - one hour interview as being combative, aggressive, abrasive and abrupt. And, the one particular situation that con£irmed this impression pertained to Ms. Melville's remark at the end o£ the interview. She allegedly indicated to the Selection Committee that, "If she did not get the promotion she wanted to know why and in writing" Ms. Melville denied making this remark. She indicated that because she was about to leave on vacation she would not be available to receive the competition result on the telephone. She asked the Selection Committee to advise her in writing. Moreover, i£ she did not succeed in getting the Job she asked Dr. Hazelwood i£ she could contact him as to the reasons why. Whosever version o£ the episode one accepts (and there is room to hold that a misunderstanding had occurred) it su££ices to say that i£ the Selection Committee's judgment with respect to the grievor's interpersonal skills was warranted we might very well support its conclusions with respect to its credibility concerns about Ms. Melville's ability to convince small business entrepreneurs to accept the advantages o£ the OSDO programme. In other words, i£ Ma. Melville e)~hibited the crude behaviour that was depicted o~ her. in evidence then she clearly disquali£ied hersel£ ~rom consideration ~or the position. Yet, Ms. Melville put her £inger on the essential problem in ascribing any rationale assessment to the Selection Committee's judgment. She asked, "I£ I em the person that was described by the Selection Committee, how could I have progressed so £ar in - 20 - the positions I have held with the College?" In our view this was a very relevant question which the College's Selection Committee should have been in a position to answer. An individual whose personality traits are so harshly depicted in the course o£ a one hour interview does not acquire those characteristics overnight. There must be something in an employee's personal record, particularly having regard to Ms. Melville's twelve years of service, that might con£irm that assessment. Surely, the most perfunctory inquiry of her supervisor would have lent credence to that impression. Indeed, some members o£ the Selection Committee admitted to a passing work relationship with Ms. Melville during the course o£ their tenure with the College. They ought to have been in a position to refer to some incident in the grievor's pest that would confirm the Selection Committee's conclusions. The truth of the matter ia that Ms. Melville's career with the College has been exemplary. She has associated herself with business people, pro£essors, administrators, Government officials, students and numeroum others in the performance of her work duties as Programme Co-ordinator. She has acquired a superlative reputation (EEE) in her evaluation ~eports. The one 1986 report that was most proximate to the Selection Committee's assessment was not made available because of delay in its preparation by the College'm personnel department. Yet, the most supe~ficial inquiry of her supervisor, Mr. Humber, would have confirmed that superior rating. As the trade union insisted, the Selection Committee's harsh 3udgment simply could - 21 - not have passed the test of the ob3ective measure o£ her past per£ormance where interpersonsl relationships would be essential to her high achievements. And it is our opinion, the Selection Committee had a duty to properly consider the grtevor's previous record to con£irm its initial and adverse impression of Ms. Melville's ability to deal with the business entrepreneur. There was much debate during the course o£ the evidence as to whether Ms. Melville's recitation o£ her work experience on the Jane Campus programme (1979) truly reflected the duties she performed. There was much con£usion on the Selection Committee's part as to whether the grievor was describing an "outreach" programme that pertained to encouraging members o£ the multi-ethnic community in the Jane-Finch Corridor (ie., the unemployed) to secure training to upgrade their skills. The Committee, however, was incorrect in ascribing to Ms. Melville any such role as she wes not involved in that facet of the programme. And in light o£ Mr. Flynn's description o£ the evolvement of the Jane St. prog=amme we fully appreciated the Selection Committee's confusion. Ms. Melville wes involved in an outgrowth of the outreach programme. The Jane-Campus programme was directed towards engaging members of the business community in training programmes £or their employees. Ms. Melville insisted that while on that programme she made "cold calls", engaged entrepreneurs in "needs analysis", assisted in the preparation o£ a training programme and retained the intructors to carry out the programme. - 22 - It iS not significant that the grievor's duties as she described them necessarily corresponded to the Training Consultant's (OSPO) tasks. Nonetheless, several members of the Committee did indicate (Mr. Neale end Ms. Masters) that it might have had an impact on their 3udgment of the grievor'a quali~ications had she really performed the duties on the Jane Campus programme as she described them. But what was clear in their evidence, particularly during Mr. Neale'$ testimony, is that the Selection Committee simply did not believe Ms. Melville Surely, if the Committee had reason to disbelieve the grievor's recitation then it seems patently obvious to this Board that it ought either to have reviewed her personal record or to have inquired of Mr. Humber, to determine whether their doubts and misgivings were warranted. That exercise would have con£irmed their initial impressions with respect to the accuracy (as no one questioned Ms. Melville's integrity) o£ the tasks she carried out during the Jane Campus pro3ect. And, without making such an inquiry, we cannot conclude that the Selection Committee extended the grievor "proper consideration" to Ms. Melville's work experience. It would appear that the Selection Committee's omission to investigate the personal files and other related documents pertaining to the internal competition £or the Training Consultant's position may have resulted in another mistake. That error was admitted'at the outset of the proceedings. The error pertained to ascribing to Mr. Lachapelle the status of a - 23 - bargaining unit member eligible to compete along with the other internal candidates. Obviously, a more care£ui end cautious approach in scrutinizing the relevant documents might have avoided the mistake. The reason the mistake with respect to Mr. Lachapelle (and we find it to be an innocent oversight) assumes such importance ia because suspicions resulted about the bona fides o£ the employer's grading of the candidates' performance during the course of their interviews. What would appear to be an erasure oS the merking~ on the sco~e~heet~ that ~e~ulted in an incmeame in Mr. Lechapelle's grade at the expense of a decrease on Ms. Melville's scoresheet was interpreted to approximate a fraudulent effort to cheat her out of the position. We cannot discern whether the changes that were made to their scoresheets by Ms. Masters, Mr. Neale or Mr. Chop were on account of adding mistakes or a legitimate change in their opinion. They really could not remember. We are clearly satis~ied, however, that those changes were not motivated by any nefarious intent. However, it is quite obvious that had the Selection Committee exhibited the greater care the unwarranted suspicions occasioned by Mr. Lachapelle's appointment could have been avoided. For all the foregoing reasons the Board is o£ the view that the employer did not extend "proper consideration" to the candidacy of Ms. Melville (and perhaps other candidates) in accordance with Article 17.1.1 of the collective agreement. Without making any definitive finding with respect to our 3urtsdiction to award the grievor the Training Consultant's - 24 - position, we do not hold that an order directing an appointment ia warranted. I£ the trade union had established its charge that the employer was incapable o£ £avouring the candidate with a fair and reasonable assessment with respect to a candidate's qualifications, we obviously would have considered that option. We readily acknowledge that there may be other circumstances short of the foregoing that might warrant an order directing the immediate appointment o£ a grievor victimized by a breach of'the selection standards contained in Article 17.1.1 oS the collective agreement. It su~£ices to say, however, that we are confident that the mistakes hitherto committed by the Selection Committee do not warrant that order. Quite ~rankly, in our opinion, many o~ the described shortcomings that were committed by the Selection Committee were the product o~ the undue haste with which their duties were discharged. Whatever the reasons for the mistakes that were made we are not prepared in the circumstances to "second guess" the Selection Committee's ability to treat in a ~air manner an applicant'~ quali{ications ~or the Training Consultant's position provided appropriate measures are taken to ensure that "proper consideration" is extended. Accordingly, the appropriate remedy will be a direction ordering a repoating o5 the internal competition. We shall remain seized for purposes of the implementation of this direction. - 25 - Dated this (~y o£ October 1989. David H. Kate~ I concur "John McManu~'° See addendum Trade Union Nominee I Concur/dia~e~ ~ui~,lu~, T~ F~llow ~mployer Nominee - 26 - ADDENDUM John McMsnua I agree with the decision o£ the Cheirmsn in all re~pectm e~cept the result. I would have grsnted the grlevor the position. ADDENDUM OF R. A. HUBERT COLLEGE NOMINEE While I have concurred in the decision of the Board, I do not agree with its position as it relates to the application of the Agreement to the requirement of related business experience for the O.S.D.O. job. The Board's position as noted on page 16, is that an improper and unfair consideration was given to those factors, namely, related business experience and seniority. Earlier in the Award, the Board does not disagree with the notion that practical business experience would enhance that understanding and thereby contribute to the abilities and credibility of the Training Consultant's success in convincing the entrepreneur to support the O.S.D.O. programme. This statement speaks to the reasonableness of the qualification. Likewise, the draft Ministry guidelines speak to the desirability of specialized skills in business. The Sheridan College position description for the consultant, on which Seneca also relied, specified five years of employment in business or industry including three years in Supervision, Personnel and/or Marketing Sales. This is a job outside the College structure and the evidence given identi~ie~ the ,value of current business experience in dealing with the business entrepreneur. Current business experience is a reasonable requirement for the vacant position. -2- The Selection Committee considered the grievor's business experience and based on a twenty-year time lapse, their knowledge of the grievor and the job to be done, concluded she would not receive a positive score on this requirement. While the grievor in this case had long service, seniority was given consideration and as pointed out in the Award, the agreement does not require seniority to be given equal or greater consideration. It was considered not only in the light of the grievor's business experience but also in respect to the lack of post secondary education and a concern for her demeanour. These factors were given appropriate weight when considering the qualifications for the position and in my view would be in keeping with the terms of Article 17.1.1 of the Agreement.' While certain shortcomings of the Selection Committee have been identified in the Award, I think it is appropriate to also identify some of the undertakings put in place that effectively contributed to ensuring that all candidates were treated reasonably the same and that \ the criteria applied bore a direct and reasonable relationship to the O.S.D.O. job. -3- Dr. Hazelwood, as Chairman of the COmmittee, was responsible for the O.S.D.O. consultants, he had performed this type of job before and was the appropriate person to head the Selection Committee. To obtain the best current and objective assessment of the job requirements, he discussed the qualifications needed with five - consultants and drew their best ideas. The siZe of the Committee and their knowledge of the job was of value. The Committee put their mind to the key elements of the job by identifying factors or criteria in terms of "Must Naves" and "Would Likes". In the consideration of each candidate, the Committee had to turn their mind to each criteria. Each Committee member was assigned an area.of questions to ensure consistent and complete consideration. The' scores were completed during or at the end of each interview when impressions are best recalled and confusion between candidates does not exist. A committee discussion then occurred to consider wide _. ~ . discrenancies ..... ., ~ ~.~i~~'~ · .. ~.~.<,~. ~ . . .. , ~.~., '~:,..:~..~'..-~.~...~, ~. ,.:~ ,~ .,.~ ~. . ... .. . ~ ~. -~. -4- The foregoing positive actions initiated by the College need to be considered in the light of the comments in the Award. They, in part, provided that proper 'consideration was given to the qualifications, experience, and seniority of the applicant in relation to the requirements of the vacant position as specified by the Agreement.